Digitized by the Internet Archive in 2007 with funding from IVIicrosoft Corporation http://www.archive.org/details/beardpoliticsOObearrich 1 VMERICAN GOVERNMENT AND POLITICS BY CHARLES A. BEARD ASSOCIATE PROFESSOR OF POLITICS IN COLUMBIA UNIVERSITY THE MACMILLAN COMPANY 1910 All rights reserved -TK ':■ "*Sef*«^£ |1|^XXVII. The Organization of Municipal Government . . 578 XXVIII. Municipal Functions 603 XXIX. Local Rural Government 638 XXX. . State and Local Politics 656 XXXI. Taxation and Finance 7061 XXXII. Social and Economic Legislation 721 Bibliographical Note 755 Index 761 AMERICAN GOVERNMENT AND POLITICS PART I HISTORICAL INTRODUCTION CHAPTER I COLONIAL ORIGINS OF AMERICAN INSTITUTIONS AmjERICAN ^QV^^^^'^nt '^ id not on 'pir>a.te in any ahtttrart theories about libertx_and equality, but in the actual experience gained by generation after generation of English colonists in managing their own poUtical affairs. The Revolution did not make a breach in the continuity of their institutional Hfe. It was not a social cataclysm, the overthrow of a dominant class, the estabhshment of a new estate in power. JX.wasjalher_an expansion of the energy of the ruUng agricultural and comme rcial classes, tha t burst asun de r the bonds with which the co mpet- ing interests in EnglandTlou^ht to restrain their growing enter- prise. Aniericah shipwrights ^uld buil3~vessels as~fieet and ^Tong as any that sailed the seas, and they were determined to conquer by main strength a free place in the world's market. American merchants were as ingenious as those who made England the nation of shopkeepers, and they could ill brook the restraints which condemned them to buy important staples in the marts of Great Britain. America was rich in timber, raw materials, and mineral resources, and American manufacturers chafed under laws compelling consumers to look beyond the seas for commodities which might well have been made in New Eng- land or Pennsylvania. It was discontent with economic re- strictions, not with their fundamental political institutions, which nerved the Revolutionists to the great task of driving out King George's governors, councillors, judges, revenue- officers, and soldiers. The American Revolution, therefore, B I 2 Aroerie^n Goyerument and Politics was not the destruction of an old regime, although it made the way for institutional results which its authors did not contem- plate; and it was not motived by the levelling doctrines with which the French middle class undermined the bulwarks of feudalism.^ ' T here had longf been executive, legislative, and j udicial offices in aUjof the c olonies, and the Revolutionists merelyjtgok posses- sj on of "them. Unlike the French popular party, theymd not have to exercise their political ingenuity in creating any fun- damentally new institutions. The Revolutionists of Rhode Island and Connecticut, where the governors, councillors, and judges were not appointed by the crown, found their ancient systems of government, based on seventeenth-century charters, so well suited to their needs and ideals that they made no alter- ations beyond casting off their allegiance to the King of Great Britain. The royal charter _grantedLJo_Connecticut by Charles IT in 1662 remained-^e rnnstitutianjof~tEat commonwealth until 1818; and the charter of the neighboring state of Rhode Island, granted in 1663, remained in force as the fundamental law until 1842. The distribution of representation, the suffrage, the qualifications for office-holders, and the legislative, execu- tive, and judicial institutions of old English origin were con- tinued after the Revolution without many radical alterations. Even the federal Constitution, in spite of Mr. Gladstone's high praise that it was the most wonderful work struck off at a given time by the brain and purpose of man, was based as far as possible on the experience of the colonies and the states. The very names applied to the Senate, House of Representatives, and President were taken from the institutions of some of the states, while many clauses of the Constitution, such as those providing the process of impeachment, the presidential message and veto, t^e origin of money-bills JP the lower house, and the freedom pi each house-tQ_deterffiine-it§_£rocedure^mider certain limitations, were taken almost verbaJim-f rami. state constitu- tions.^ The powers which the'Convention of 1787 vested in ^ Compare, for instance, the following chapter with the accMHit of the in- stitutional reforms of the French Revolution in Robinson and.^eard, Develop- ment of Modern Europe, Vol. I, chaps, xi and xii. ^ For a study of the sources of the federal Constitution, see Robinson, Original and Derived Factors of the United Stales Constitution, and the note Colonial Origins of American Institutions 3 Congress were scarcely experimental, for six years' practical experience with the shortcomings of the Articles of Confedera- tion had taught statesmen the inexorable necessity of giving the national government those very powers, and limiting the states in the exercise of the authority which they had previously enjoyed/ Nor must it be forgotten that the right later assumed by the Supreme Court to pass upon the constitutionaUty of laws and declare them void had already been exercised by many state courts.^ The dictum of Stubbs that the roots of the present lie deep in the past has now become commonplace; but it is true of Amer- ican institutions in a very peculiar sense, for they are founded on written documents which, in spirit and form, bear the impress of the poUtical and economic conditions prevaiHng at the time of their creation. Many state constitutions still reveal distinct traces of Revolutionary days, and the written letter of the federal Constitution, notwithstanding the fifteen amendments and the revolution wrought by the Civil War, remains unchanged so far as the machinery of government and the powers of its three departments are concerned. It is, therefore, from Amer- ican history alone that one can learn, for instance, why there are two Senators from each state, why the system of checks and balances, so characteristic of American institutions, was adopted, why the President is chosen through an elaborate electoral system, why interstate commerce powers are vested in the federal government, or why certain political practices have sprung up in the attempts to operate our governments, national and state.^ The Colonial Governor On the eve of the Revolution there were thirteen colonies in America — each with its separate institutions ^ and its peculiar to chap, iv of Bryce, American Commonwealth, Vol. I, taken from John- ston's article in the New Princeton Review, September, 1887. ^ See an illuminating article on this point by Professor Max Farrand, in the American Political Science Review for November, 1908. ^ Early cases illustrating the power of the courts to declare state laws in- valid on constitutional grounds are to be found in Thayer, Cases on Constitu- tional Imw, Vol. I, pp. 48 fif. See also Professor Charles G. Plaines' valuable essay on The Conflict over Judicial Powers (Columbia University Studies). ^ Goodnow, Politics and Administration, especially chap. ii. ■* Delaware was under the proprietor of Pennsylvania. 4 American Government and Politics traditions, many of which, it is instructive to remember, were then older than are our national traditions to-day. In form of government, however, especially in its higher ranges, the colonies presented striking similarities. Each had a governor, an assembly, and a judicial system, and the Common Law of England, as far as it was applicable and had not been changed by legislation, was binding everywhere. In eight of the colonies, — Georgia, North Carolina, South Carohna, Virginia, New Jersey, New York, New Hampshire, and Massachusetts, ^ — the governor was appointed by the king and rec ognized as the king's p ersonal deputy.^ He occupied a twofoM^position. Ontheone~TiaiRl, he was the representative of British interests in the colony — the agent through whom the will of the British government was made known to the in- habitants, and the guardian who kept the crown informed on the state of the province. On tjiontherhand, he was the Mg hest executive official in the colony, charged lvitii the cm igervation of t he peace ■and advancemelit ui the welfare ot tlie colonists.^ As a contemporary writer put it: " theTiown delegates^' the governor for the time being all its constitutional power and authority, civil and miHtary — the power of legislation 50 far as the crown has such — its judicial and executive powers, its powers of chancery, admiralty jurisdiction, and that of supreme ordinary." ^ , As the-'^Bef exeaitive^Ji£_SuperYis^^ of. the laws and appointed. i^uaUy- in conncction -witl i the adv ice of his co.u»c il, th e iro porfant civil office rs. He could remove councillors ^ and officials for cause, and direct them in administration. By virtue of his position as chancellor, he was head of the highest court in the colony, which entertained appeals from lower tri- bunals and exercised important original jurisdiction in many * For Massachusetts' peculiar position, below, p. 5. ^ See Readings, p. 2, for a royal governor's commission. ^ Greene, The Provincial Governor, chap, iv, p. 65. * Thomas Pownall, The Administration of the Colonies, pp. 85-86. The term "supreme ordinary" applies to the powers of the king as head of the Church of England. The royal governor was commissioned by the crown and commonly styled, "Captain-General, and Governor-in- Chief in and over the Province, and Chancellor, Vice-Admiral, and Ordinary of the same." * Not in Massachusetts. Colonial Origins of American Institutions 5 matters. Moreover, he granted pardons and reprieves. He was commander-in-chief of the colonial forces, appointed the mih- tary officers of high rank, levied troops for defence, and enforced martial law in time of invasion, war, or rebellion. A? the king's ecclesiastical representative, he collated to churches and bene- fices. In connection with the colonial legislature, the royal governor also enjoyed extensive powers. In all of the eight colonies men- tioned above, except Massachusetts, he nominated the council which composed the upper house of the legislature. He sum- moned, adjourned, and dissolved the assembly; he laid before it projects of law desired by the home government; and he vetoed laws which he thought objectionable. He was thus endowed by law with high authority, and often increased his poHtical influence through his power of appointing local sheriffs who were the constituting officers at elections for the assembly, la. shor t, th ej oval g o vernor enjoyed suc h high prerogatives in .c olonial times that the tir st state constitution-makers, having le arned by experience to fear exe cutive aUlhorityTusuallv pro- vifjed for thfi ^uprpmacyjo f^the legisfatnre-and gave their gov- erno is-very Uttle power ? ~^" ~~ The royal governor, however, was by no means an unhmited sovereign in his province, for he was bound by his instructions and by the restraints which the assembly imposed through its power of controlhng the grants of money. . Tn d^ H^ in the in numerab l p di'pntn w hi ch fill r o l nn i nJ history, thg_ assembly usually triumphed^_Q^rpr an nbstjii ate governo r because it was able to .keep.-a^.fimx- grip on the ^aurse^strmgs. "Toward the eve of the Revolution, his appointing power was curtailed by the claims of the council to a share in the distribution of patron- age. Moreover, complaints against his actions often went to the Board of Trade,- while appeals from his decisions lay to the king in council across the sea. Unhke the other colonies which had governors appointed by the king, Massachusetts had a charter that set forth, among other things, the general organization and powers of the legis- lature. The governor could adjourn, prorogue, and dissolve ' See below, p. 87. ^ Whitney, Government of the Colony of South Carolina, pp. 39-40. 6 American Government and Politics the assembly, but he could not appoint the council, or upper house, and < he could cho ose the civil officers onh[_^5dtlxits_con- sent. However, he enjoyed considerable military authority ; he organized the miUtia, appointed the chief officers, commanded tne armed forces, and declared martial law in case of rebeUion or invasion. Naturally this division of authority invited con- fficts, and it so happened that Massachusetts led the way in throwing off all royal authority. In Rhode Island and Connecticut the_gQYernor_gccupied a peculiar position. In the T5rsl~plSce7Tiewas elected annually by ageneraT'asse mbly composed ~oF~Ehg"govenior, assistants, and representatives chosen by the x^errinreach *'city,'TOWn, or place." In tli£, second place7"lhe~govern"o r did not stand out as a di stinct official; he was Uttle more"~Than ^ar-6^fUfehead, his functions being dis charged only in cooperation with his assist- ants, or councillors. In each of these coIomesTThe "governor and assembly were duly authorized to make all necessary laws and ordinances and manage corporate business with a large degree of freedom.^ There was accordingly no separation of legislative and executive powers as in the royal provinces, and the governor was constantly controlled in his office by the advisers who, like himself, were chosen by the general assembly. F urthermo re, h£_ £nioved no veto po wer over legislation.'- The executive authonty in the proprie tary colonies of Mary- land fln H^ermsyt-^a rl4a^ nd"^fHawa r^ "" "^^V ^ on a diSE En^'basis from tVint in jj^ royal B TOv mces ^ rJii_XoiiJ^ecticut_or_Rjiode Island. Each of the former was, as Professor Osgood points out, "a, miniature longdonTor a ~semi4€udaiJ:ype„and the proprietor wiis a petty king^' Each was a vast estate carved out of the royal domain and granted by the crown to a proprietor who, in theory at least, combined the rights of government with those of land- lord, from which he derived large revenues. Wh en the prop rietor of Pennsylvania was in his province, he assume d execu tive^au- * For an extract from the Rhode Island Charter, Readings, p. 7. 2 The governor of Rhode Island was given the veto power in 1009. ' Delaware was united to Pennsylvania under the proprietorship of Penn in 1682, and until 1704 the two colonies had a single legislature. In the latter year, however, separate legislatures were established, although they continued under the same proprietor, who appointed a governor for Delaware to represent himself. Colonial Origins of American Institutions 'p thority himself, but when he was absent he vested it in a lieuten- ant-governor who served in the capacity of his agent.^ The Penn- sylvania assembly successfully resisted the power of the governor to dissolve or prorogue, and the executive council did not serve as an upper chamber, as was the case in the legislatures of the other colonies, although it did enjoy a somewhat indefinite in- fluence over legislation.^ In Marvl and. ^Hhe pr oprietary held the title tr>^ thp land , \ynt; captain-general and he ad_of thFChtirch. All patronage, lay and clerical, amounting to fourteen or tit teen thousand pounds a year — from the governor with a salary of fifteen hundred and fifty pounds down to the naval officers and sheriffs — was in his hands. He had a negative upon all laws, and the power of pardon. To the proprietary belonged all the quit-rents, the tobacco and tonnage duties, and the legal fines and forfeitures, although the assembly vigorously resisted this last source of emolument. . . . To the governor, who was ap- pointed by the proprietary, the exercise of all these sovereign powers was, as a rule, entrusted. The governor represented the proprietary in the province, summoned, prorogued, and dis- solved the assembly, and assented to laws. He also claimed a veto on legislation, but this right was not admitted by the Bur- gesses. He made all appointments to office, issued pardons, signed the warrants for execution, and exercised great political influence." ^ Nevertheless, under jfes power to control money grants, the popular branch of the legislature in Maryland suc- ceed£d«_t Qward the Revolu tion, ir^^sernrin g n tol agafely effertivft - Control over the governor in the exercise of these lar ge powers. Colonial Legislatures In all of the colonies, e xeq7tr~gen,nfiy1yar'ip. tViprp-mgrp two bi^anche T'ot the le gislature, and onlv in Massachuset ts^ Con- necticut, and Rhode Island, waft the upper house — t o ii^tft the term magngrat rgfise'^- elective. In these three New England colomesTtfie councillors, or assistants, as they were called, were chosen by the general assemblies, and thus did not occupy the ' W. R. Shepherd, History of Proprietary Government in Pennsylvania (Columbia University Studies), p. 474. ^ Ibid., p. 321. 'Lodge, English Colonies in America, p. 113. ^S American Government and Politics same position of independence over against the representative branch, as did the councillors of the royal colonies. In the pro- vincial colonies, the upper house, or council, was chosenHSy the king acting^ through'the royal governor, who usually determined the selection himsell^ InllTe proprietary tx>l6nies, the proprietor or his representative ^sekcled-lheJjDounHIIors. In addition to the usual legislative powers, that is, the right to discuss and vote on laws, the council had executive and judicial functions. It advised the governor ; in conjunction with him it formed a judicial tribunal ; it frequently controlled him in mak- ing appointments; and it discharged many of the official duties now vested in higher state officers, such as the secretary and treasurer. In Massachusetts, the governor and council ap- pointed civil officers; in South Carolina the governor had to secure the approval of the council before taking any important' action or making an official appointment; in Rhode Island the assistants shared the executive power of the governor; and in New_ Jersey it was,.Qnly^with the consent of the council that the gover nor appointed judges and"'avir 7eccl esiastical, and military officials! Where the council was elected it tended to merge with the legislature; in Pennsylvania, where it was the proprietor's advisory board, it lost almost all legislative power, and in the royal provinces it became an aristocratic body, sympathizing generally with the governor and king in the contests with the representative branch of the government. In every colony there was an assembly of representatives chosen by popular vote, but, contrary to common impressions, there was nothing hk e univers al manhood suffrage.^ In New York, for example, voters for members of the assembly — the lower branch of the legislature — were required to be freeholders of lands or tenements to the value of forty pounds free from all encum- brances, except that in New York City and Albany the suffrage was open to all freemen — that is, all men who had been regu- larly admitted to civic rights.^ In Virginia the voter had to be a freeholder of an estate of at least fifty acres of land, if there was no house on it; or twenty-five acres with a house twelve feet ^Reference: A. E. McKinley, The Suffrage Franchise in the Thirteen English Colonies, University of Pennsylvania Publications — the stand- ard authority on this problem. - For a fuller explanation of this term, see McKinley, ibid., pp. 208 flf. Colonial Origins of American Institutions 9 square; or, if a dweller in a city or town, he had to own a lot or part of a lot with a house twelve feet square. In Massachusetts the voter for member of the legislature, under the charter of 1 69 1, had to be a freeholder of an estate worth at least forty shillings a year, or the owner of other property to the value of forty pounds sterhng. In Pennsylvania the vote was restricted to freeholders of fifty acres or more of land "well seated" and twelve acres cleared, and to other persons worth at least fifty pounds in lawful money. As a result of these p roperty ^ iialif^^^^^'^'^j a considerable [ ^portion of the adult males were excluded from any share in the government. Exact statistics are difficult to obtain, and the following figures are given by Dr. McKinley merely by way of illustraticjn. He estimates that in New York City the voting class included from one-ninth to one-fourteenth of the total popu- |/ lation, and that two-fifths of these electors were not owners of property, but voted as freemen of the city. Taking some scat- tered figures for mid-century elections in Virginia, he places the voting population at from seven to ten per cent of the white inhabitants, and concludes that "the franchise was more widely exercised, if not more widely conferred, in Virginia than in the more Northern colonies." In Boston during the period from 1745 to 1754 the number of voters averaged about three per cent of the population, but this was partially due to the fact that .many duly qualified voters were ordinarily inactive, for on one occasion at least six and one-half per cent of the inhabitants took part in an election. In the rural districts of Pennsylvania about one out of ten of the population could vote, while in the . city of Philadelphia the fifty-pound qualification disfranchised \^ so many inhabitants that, according to the tax list, only one in fifty possessed the suffrage. In conclusion, Dr. McKinley says: "In New York City in the elections of 1735, 1761, and 1769, the actual voters num- bered about eight per cent of the population. In Pennsylvania the tax list figures give only the potential voters, but they show about eight per cent of the rural population qualified for the suffrage and only two per cent in the city of Philadelphia, a condition quite in contrast to that of New York City. In New England the actual voters appear to be less proportionately than in the middle and southern colonies. Massachusetts, for instance, 10 American Government and Politics shows only one person in fifty as taking part in elections, and Connecticut, in elections immediately preceding the Revo- lution, had about the same proportion. In Rhode Island the freemen or potential voters numbered only nine per cent of the population. These figures are entirely too few and too scattered in time and territory to justify any accurate generalization from them. The potential voters seem to vary from one-sixth to one-fiftieth of the population, and the actual number of voters shows almost an equal variation; Massachusetts and Connec- ticut showing at times only two per cent of actual voters among the population, where perhaps sixteen per cent were qualified electors; and New York City and Virginia showing the far larger __j)roportion of eight per cent of the population as actual voters. At best the colonial elections called forth both relatively and /absolutely only a small fraction of the present percentage of voters. Progerty qualifications, poor means of communication, 1 large electionSistricts, and the absence of party organization /combined to make the most sharply contested elections feeble / in their effects upon the community as compared with the wide- spread suffrage of the twentieth century." ^ % Most of the colonies also followed the example of the mother country in imposing special quaHfications on members elected to the legislature. In South CaroUna, for example, a member had to own five hundred acres of land and ten slaves or be worth one thousand pounds sterling in land, houses, or other property. New Jersey members had to have one thousand acres freehold, while in Georgia delegates were required to own at least five hundred acres of land. In addition to property qualifications, religious tests were usually imposed on assemblymen. Following the ancient practice of England, representatives were distributed, in colonial times, among distinct territorial districts rather than among equal groups of people. In New England the town was the unit of representation, and only a slight attempt was made to adjust the representation to the population. For example, the charter of Rhode Island stipu- lated that Newport should send not more than six persons, Providence, Portsmouth, and Warwick four each, and other places, towns, and cities two each. The Massachusetts charter, * Op. cit., p. 487. Colonial Origins of American Institutions 1 1 while providing that the original assembly should consist of two representatives from each town or place, at the same time au- thorized the assembly to alter this number at will; and, although the modern democratic principle of equal election districts was not recognized, an attempt was made to give special weight to larger numbers. In the middle colonies, the county was the unit of representation, and, according to ancient EngUsh prece- dent, each county elected its representatives under the super- vision of the sheriff as returning officer. In South CaroUna representatives were apportioned among parishes, but they varied so greatly in population that the representation was un- equal, vin .general, it may be said, therefore, that the principle of equal representation was not accepted, but that practical considerations led to a very rough attempt to give special recog- nition to the more populous areas. yThe colonial assemblies constantly maintained that they j possessed entire and exclusive authority to regulate their domes- i tic concerns.^ Especially in the matter of taxation did they stoutly assert their exclusive rights not only in formal declara- tions but also in actual resistance to the royal and proprietary governors. No attempts, however, were made to define and lay down colonial legislative powers in any complete written instru- ments.^ Such a procedure was almost unknown to the poUtical practice of England; and no concrete need for it had arisen in the colonies. In the charters, the legislative power conferred was general, not specific. For example, the Massachusetts charter of 1691 provided that the assembly should have "full power and authority from time to time to make, ordain, and estabUsh all manner of wholesome and reasonable orders, laws, statutes, and ordinances, directions, and instructions either with penalties or without (so that the same be not repugnant or con- trary to the laws of this our realm of England) ^as they shall judge to be for the good and welfare of our said province or ter- ritory." In addition to this general legislative power, the as- semblies' usually enjoyed a large control over the executive * Story, Commentaries on the Constitution (5th ed.), Vol. II, p. iig. * Some of the legislatures, however, prepared statements of their "rights." New York, for example, did this before the close of the seventeenth century. 12 American Government and Politics department through their power to withhold the salaries of the officials. Notwithstanding the Jai:ge-4€gisiative- power asserted and enjoyed by the colon ial a ssgmbto, there were certain legal limitations on their authorfty. In the provincial and proprie- 1 tary colonies, the governor exercised the right to veto laws/ and in all colonies except Maryland, Rhode Island, and Connec- ticut laws had to be sent to England for royal approval. Fur- thermore a special act of Parliament provided that all laws, by-laws, usages, and customs in the colonies repugnant to laws made in England relative to colonial affairs should be null and void. Later, ParUament distinctly asserted that the colonies and plantations in America were subordinate to and. dependent on the crown and Parliament of Great Britain, which enjoyed the power and authority to make laws binding the colonies and people of America in all cases whatsoever. A South CaroUna court once went so far as to declare an act of the colonial legis- lature of 171 2, taking away the freehold of one man and vesting it in another, null and void on the ground that it was against common right and Magna Charta.^ At all events the colonists had long been acquainted with both theoretical and practical limitations on their assembUes, so that, after gaining indepen- dence, they acquiesced, though not without contest, in the courts' assumption of power to declare laws null and void on constitutional grounds. The Colonial Jtidiciary The lo west colonial court s were those held by the justices of the peace, who were generally appointed by the governor, although in some instances they were elected by local freeholders. In civil matters, these justices had jurisdiction over cases involving small amounl^, under five pounds in New York and under forty shilHngs in Massachusetts. In criminal matters they were competent to try only the pettiest offences against the law. Though they bore the name of ancient local magistrates of Eng- land, they enjoyed by no means the same powers, especially in ^ In Connecticut and Rhode Island the governor did not enjoy the veto power. * Thayer, Cases on Constitutional Law, Vol. I, p. 53. Colonial Origins of American Institutions 13 the matters of administration and local government. In Mas- sachusetts, and some other colonies, however, the old EngHsh practice of uniting all the justices of the county in a general court of quarter sessions was followed; and this court, in addi- tion to exercising criminal jurisdiction, supervised roads, bridges, inns, and other county affairs which are now usually placed under the direction of county commissioners.^ Above the justices o f the peace ther e were usuall y regular count y courts , TKe judges of which were appointed^ by the gg y- ernor,' except in New Jersey, where they were elected. Generally -spcdong, the county court had criminal jurisdiction over all except capital cases, although in Massachusetts criminal matters were turned over to sessions of the justices of the peace. The county courts also had civil jurisdiction in cases involving certain amounts. Each colony had a high court w hich decided weighty matters and appeals from the lower courts. In the royal colonies thei governor as chancellor and his council generally composed this high tribunal; but in Massachusetts it consisted of a chief justice and four associates appointed by the governor and coun- cil. In Pennsylvania the supreme court was composed of a chief justice and three associates, chosen by the governor. Beyond the highest court of the colony, there Tay^pppals-tn the kin g in co uncil in England, and this power was frequently ex- erSed on the eve" of' the Revolution. Far from being regarded as an infringement on the rights of colonists, it was esteemed a privilege to be able to lay cases before the members of this tribunal, who were so far removed from local jealousies.^ It was of course an expensive process, and only cases involving certain amounts could be appealed. In Pennsylvania the amount had It) exceed fifty pounds, and in Georgia five hundred pounds, berore the case could be carried to the king and his council, /while there were greatdivergences_among the colonies in the organization of the courfs~aTlTf'fIir apportionment of business among them, they thus had certain features in common. The idea of an el ective jud iciary, unknown to EngUsh practice, was not accepted save in some minor instances. The s^^tem of * Readings, p. 13, on the powers of magistrates in Virginia. 2 Story, Commentaries (5th ed.), Vol. I, p. 127. 14 American Government and Politics appeals to the highest colonial court was universally recognized, and the practice of carrying important cases to a tribunal above all colonial courts was steadily maintained. Consequently, when the colonists were later called upon to organize their own judicial system, they had to make but shght changes in the existing arrangements. Municipal and Local Institutions ^ Although there were in the colonies no cities of importance, measured by modem standards, the foundations of American municipal government must be sought in colonial times. It appears «■ that there were about twenty municipal corporations during that period, each of which received its charter from the colonial governor — New York and Albany in 1686, Philadelphia in 1691, and Trenton, New Jersey, the last, in 1746. (The form of organization in general followed old EngUsh examples; the governing body was a common council composed of the mayor, recorder, aldermen, and councillors^ In most of the cities the councilmen and aldermen were " electe3~by popular vote under a franchise which everywhere included all of the well-to-do classes and generally a large proportion of the residents, though in no case was manhood suffrage established." In Philadelphia, Annapohs, and Norfolk the common council was a closed cor- poration; that is, the aldermen and councillors enjoyed Ufe terms and the power of filhng vacancies as they occurred. In accordance with English precedent, the mayor was not elected by popular vote. In a few instances he was selected by the com- mon council, but in the majority of cities, inc^luding New Y^rk and Albany, he was appointed by the provincial govemer. Somewhat restricted powers were at first conferred upon the municipaUty by its charter, and in the later period, before the Revolution, it was a common practice to secure from the colonial t assemblies special acts granting additional powers. The striking feature of the celenial municipal system was the fusion of execu- tive, legislative, and judicial functions in the hands of the sanie,^ body; and it is interesting to note that the commission form-<:^ municipal government now being widely adopted throughou^a the United States is the return to the original principle in soN ^ Reference; Fairlie, Municipal Administration, pp. 72 fif. Colonial Origins of American Institutions 15 far as it vests administrative and legislative powers in one au- thority.^ In the sphere of rural local government we have departed even less from colonial models than in other branches of administra- tion. The Revolution did not disturb, in any fundamental manner, the institutions of local government which had come down from early colonial times; for, as Professor Fairlie says, "the main features of the old systems continued in the different states. Towns in New England and the middle states and par- ishes in the southern states remained unaltered; and are in fact not mentioned in most of the constitutions of the revolutionary period." - In New E ngland the unit of local adniinistratioi i was tlip to^"i which was governed by a meeting of the electors, who chose the town officers, levied taxes, appropriated money, passed by-laws, and reviewed the activities of the various local officers.^ Counties existed, of course, in New England, but only in a rudi- mentary form, and principally for judicial purposes. In the middle colonies, notably New York and Pennsylvania, there was a combination of town and county local government, Town meetings were held in New York as in New England. As early as 1 69 1, howev er, a county ^ard of supervisors^ jepreggntiiig- t^e Various towns^j^ was created an d began to absorb at once the most important local administrative functions. In Pennsylvania, strong county administrative organization overshadowed the town and furnished the model for local government in a large number of western states. In the South, the plantation system led to the formation of scattered settlements, so that local gov- ernment had to be based upon the county rather than the parish. Thus, for example, in Virginia, "the county became the unit of representation in the colonial assembly and the unit of miUtary, judicial, highway, and fiscal administration. The officers were the county lieutenant, the sheriff^ (who acted as collector and treasurer) , justices of the peace, and coroners. All were appointed * Goodnow, Municipal Government, p. 176; Readings, p. 529. It should be noted that in New England the government of the urban centres was based upon the rural town-meeting system. ^ Local Government, p. :^;i. * ^ For the minutes of a Boston town meeting in 1758, see Readings, p. II, and compare with the documents on a modern New England town meeting, Readings, pp. 556 ff. 1 6 American Government and Politics by the governor of the colony on the recommendation of the justices, and the latter thus became a self-perpetuating body of aristocratic planters controUing the whole county adminis- tration." ^ Social Classes in Colonial Times ^ In every colony there was a somewhat sharp ^ifferejitiation of sodetv into economic classes. In all of the colonies there was a^HisSnct upper class: the clergy, professional men, merchants, and landed proprietors in New England; the landed proprietors and merchants in the middle colonies; and the great slave-hold- ing planters in the South. At the bottom of the social scale there were the slaves and poor whites in the South, the mechan- ics, indented servants, and a few slaves in the middle colonies and New England. Between these social groups was a sub- stantial middle class of small farmers, traders, and storekeepers. The situation in New York can best be described in the language of Mr. Theodore Roosevelt: "The colony was in gov- ernment an aristocratic republic, its constitution modelled on that of England and similar to it; the power lay in the hands of certain old and wealthy families, Dutch and Enghsh, and there was a Hmited freehold suffrage. The great landed famiUes, the Livingstons, Van Rennselaers, Schuylers, Van Cortlandts, Phil- lipses, Morrises, with their huge manorial estates, their riches, their absolute social preeminence and their unquestioned political headship, formed a proud, pohshed, and powerful aristocracy, deep rooted in the soil. . . . They owned numerous black slaves, and lived in state and comfort on their broad acres, tenant-farmed, in the great roomy manor-houses, with wain- scotted walls and huge fireplaces, and round about, the quaint old gardens, prim and formal with their box hedges and precise flowerbeds. ... ''Next in importance to the great manorial lords came the rich merchants of New York; many families Hke the Living- stons, the most prominent of all, had representatives in both classes. . . . They were shrewd, daring, and prosperous; they were often their own ship-masters, and during the incessant 1 Fairlie, Local Government, p. 19; for an illustrative document, see Readings, p. 13. ^ Reference, Lodge : English Colonies in America. Colonial Origins of American Institutions 17 wars against the French and Spaniards went into privateering ventures with even more zest and spirit than into peaceful trad- ing. Next came the smaller landed proprietors, who also pos- sessed considerable local influence; such was the family of the CHntons. The law, too, was beginning to take high rank as an honorable and influential profession . . . The bulk of the people were small farmers in the country, tradesmen and mechanics in the towns. . . . The farmers were thrifty, set in their ways, and obstinate; the townsmen thrifty also, but restless and tur- bulent. Both farmers and townsmen were thoroughly inde- pendent and self-respecting, and were gradually getting more and more poHtical power. . . . The habit of constantly imA porting indentured Irish servants, as well as German laborersi under contract, prevailed throughout the colonies and the num- ber of men thus imported was quite sufficient to form a consider- able element in the population, and to add a new, although per- haps not very valuable, strain to our already mixed blood. In taking up at random the file of the New York Gazette for 1766, we find among the advertisements many offering rewards for run- away servants; such as 'three pounds for the runaway servant Conner O'Rourke,' 'ten pounds for the runaway Irish servant, Phihp Maginnis,' 'five pounds apiece for certain runaway Ger- man miners, — Bruderlein, Baum, Ostmann, etc. — imported under contract'; all this mixed in with advertisements of rewards of about the same money value for 'the mulatto man named Tom,' or the * negroes Nero and Pompey.' " ^ ^<^ Political Theory ^ X C There is no reason to suppose that the educated and well-to-do >y colonists were in any way discontented with the fundamental institutions of government under which they lived. At all events, we find no such Hterature of political criticism in the V^ American colonies on the eve of the Revolution as we find in France previous to the meeting of the Estates General. It is true that in Pennsylvania some of the mechanics were dis- contented with the way in which the propertied classes conducted * Theodore Roosevelt, Gouverneur Morris (American Statesmen Series), pp. 14 ff. ^ Reference : Merriam, American Political Theories ; Readings, p. 15. c 1 8 American Government and Politics the government of the city.^ It is true, also, that there was some vague unrest among the disfranchised of New York City; but generally speaking there was no organized protest and no liter- ature of protest. Even the Puritan philosophy of New England got the name of being democratic because the Puritans had resisted royal y prerogati ve rather than bec ause they entertained "any^quaU- ^ tarian notions of democracy. As early as 1631 the people of Massachusetts provided that no one should be admitted as a freeman unless he was a member of one of the churches, and to the very end a clear distinction was made between the inhab- itants and the freemen enjoying poUtical privileges. J They regarded the Bible, interpreted by themselves, as the foundation of the state. "There is undoubtedly," said John EHot, "a form of civil government instituted by God himself in the holy Scrip- tures, whereby any nation may enjoy all the ends and effects of government in the best manner, were they but persuaded to make a trial of it." There was in New England, especially in the rural districts, a considerable democratic equality, but nowhere in the literature of New England do we find any real enthusiasm for democracy in the abstract. In fact John Cotton in 1644 declared that democracy was "the meanest and worst of all forms of government." In a treatise by John Wise, entitled, A Vindication of the Government of New England Churches, published in 171 7, we find the following enumeration of the forms of government, with a commentary upon each of them: ^ "(i) a democracy, which is when the sovereign power is lodged in a council consist- ing of all the members, and where every member has the privi- lege of a vote. This form of government appears in the greatest part of the world, to have been the most ancient. For that reason seems to shew it to be most probable, that when men had thoughts of joyning in a civil body, would without question be inclined to administer their common affaires by their common judgement, and so must necessarily establish a democracy. A democrac^^ thetL_^rected, when a number of free persons, do assemble together, in order to enter into a covenant for uniting * C. H. Lincoln, The Revolutionary Movement in Pennsylvania, 1760- 76, University of Pennsylvania Publications. ^ Extract slightly condensed. Colonial Origins of American Institutions 19 themselves in a body. And to compleat this state these con- ditions are necessary: i. That a certain time and place be as- signed for assembUng. 2. That the vote of the majority must pass for the vote of the whole body. 3. That magistrates be appointed to exercise the authority of the whole for the better dispatch of business, of everydays occurence. (2) The second species of regular government, is an aristocracy. (3) The third species of a regular government, is a monarchy. It is said of the British empire, that it has the main advantages of an aris- tocracy, and of a democracy, and yet free from the disadvantages and evils of either. It is such a Monarchy, as by most admirable temperament affords very much to the industry, liberty, and happiness of the subject, and reserves enough for the majesty and prerogative of any king, who will own his people as subjects, not as slaves. It is a kingdom, that of all kingdoms of the world, is most Uke to the kingdom of Jesus Christ, whose yoke is easy, and burden Ught." Neither did the colonists entertain modern notions o fj:e]^gi^"g_ liberty, although by gradual process a high degree of toleration Ihad^een estabUshed. In New York, for example. Catholics and Jews were excluded from the suffrage by the terms of the law, but it is impossible to discover to what extent the law was actually enforced. In fact, Catholics and Jews were quite frequently disfranchised. In Virginia the EstabUshed Church sought to suppress dissent, and as late as 1774 James Madison wrote: ''that diabohcal, hell-conceived principle of persecution rages among some. . . . There are at this time in the adjacent country no less than five or six well meaning men in close jail for pubUshing their reHgious sentiments which in the main are very orthodox." ^ Experiments in Federation Although it was the Revolution that welded the thirteen colonies into the union which finally proved permanent, there had been three noteworthy attempts at federation previous to the War of Indfil^ndence. The first was the New England ^ ^ Letters and Writings of James Madison, Vol. I, p. 12. On the whole question of religious Kberty, ^e S. H. Cobb, The Rise of Religious Liberty in America. 20 American Government and Politics V Confederation formed among Massachusetts Bay, Plymouth, Connecticut, and New Haven in 1643. The united colonies of New England were bound together in a "firm and perpetual league of friendship and amity for offence and defence, mutual advice and succor, upon all just occasions, both for preserving and propagating the truth and Uberties of the Gospel and for their own mutual safety and welfare." For some twenty years the Confederation was active, and it continued to hold meetings until 1685, but it left Uttle permanent impress. The second attempt at union was at Albany in 1754, when on suggestion of the Lords of Trade in England an intercolonial conference was held for the purpose (among other things) of entering into "articles of Union and confederation with each other for mutual defence of his majesty's subjects and interests in North America in time of peace as well as war." Massa- chusetts, Connecticut, Rhode Island, Pennsylvania, New York, New Hampshire, and Maryland were represented, and a com- mittee, with Frankhn in the lead, reported plans for union. The colonists, however, did not adopt the scheme because they feared that it would give the crown too much power. The crown regarded the plan as too democratic, and so the project fell through. The introduction of the Stamp Tax bill into Parliament led several of the colonies to protest to the home government; and when the bill was passed in spite of their objections, the Mas- sachusetts legislature recommended a colonial congress and ap- pointed representatives. After no Uttle dispute among the members of other colonial assembUes, the proposed congress composed of the representatives of nine colonies — all except ♦ Virginia. New Hampshire, Georgia, and North Carolina — convenea in New York in 1765. Permanent union, however, was not their purpose. They merely formulated an address to the King, a memorial to the Lords, and a petition to Commons; ^ I and the repeal of the Stamp Act put a stop to the union move- ment for the time. It required the patriotism and pressure of the long war to fuse the colonies into a nation. ^ They also drafted a list of grievances. CHAPTER II INDEPENDENCE, UNION, AND SELF-GOVERNMENT The American Revolution has two aspects. On the one hand^ it was a contest between the government of Great Britain and I those colonists who determined, in the beginning of the con- I troversy, to resist the poHcy of the mother comitry, and finally I to throw off her rule altogether. To bring this contest to a suc- cessful issue, the Revolutionists formed committees, assemblies, and national congresses ; they raised troops, levied taxes, bor- rowed money, negotiated with foreign powers, and waged war in the field. On the otheT hand, when independence was de* clared, the Revolutionists had to provide some form of united government for the realization of their common purposes, and^ ^ at the same time to estabhsh permanent state governments.'' Thus cooperation among the Revolutionists of all the colonies and internal reconstruction within each colony proceeded simul-- taneously, and the result at the close of the war was a collection \ of "free, sovereign, and independent states'* — each with a \ constitution of its own — leagued in a "perpetual union" under the Articles of Confederation. Union under the Continental Congresses The Revolution was the work of definite groups of men co- operating for specific purposes. In the preHminary stages of resistance to Great Britain, the colonists relied mainly on their regular assemblies as organs for the expression of revolutionary opinion, but as the contest became more heated and acts were performed for which there was no legal sanction, the Revolu- tionists began to form independent committees to represent them. This was necessary for the purposes of agitation, and later for organized rebeUion, especially in those colonies with royal governors. 21 22 American Government and Politics The germs of these revolutionary organizations which soon widened into state and national governments are to be found in the committees of correspondence — small groups of persons selected by the Revolutionists in parishes, towns, and counties for the purpose of corresponding with one another, comparing views, and finally cooperating in the great task of overturning the old government and setting up a new system. These com- mittees began as local organizations, but spread so rapidly and cooperated so effectively that they soon gathered sufficient force . to accompUsh the work of the Revolution.^ «/ As early as November, 1772, a committee of correspondence was formed in Boston under the direction of Samuel Adams ;^ it held regular meetings, sent emissaries to neighboring towns to organize similar bodies, and carried on a campaign of popular education in opposition to British colonial poHcy. Early in the following year the Virginia House of Burgesses appointed a special committee which was charged "to obtain the most early and authentic intelligence of all such acts and resolutions of the British Parliament or proceedings of adminis- tration as may relate to or affect the British colonies in America; and to keep up and maintain a correspondence and communica- tion with our sister colonies respecting those important consideru, • tions; and the result of such their proceedings from time to time to lay before this house." This official example was speedily followed by other legislative assembhes, so that within about a year there were twelve colonial committees appointed in regular form. Imposing as they seemed, however, they were by ' means as active and important as the unofficial local committees representing the Revolutionists directly. These local committees sprang up everywhere under- the direction of the county committees, and assumed control oi' the revolutionary forces. Thus there was organized a govern- ment within a government, with the old territorial subdivisions of the colony as a basis. For example, in New Jersey ta^h township had its committee which chose delegates to for/n the ^ Collins, Committees of Correspondence of the American RevotjUttin, Annual Report of the American Historical Association, 1901, Vbl.' I, pp. 247 fif. ^ For the significant Boston resolution establishing this comn"'<^'ee, see Readings, p. 17. "«j^^ Independence, Union, and Self-Government 23 county committee, which in its turn selected representatives to compose a committee for the entire colony. These commit- tees were powerful organs for action ; they kept up the general agitation ; they called periodical conventions of Revolutionists; and indeed assumed the reins of government. The skeleton or framework of the revolutionary machine was therefore well perfected when Samuel Adams in 1774 proposed y in the Massachusetts legislature a resolution in favor of calling v a congress of delegates from all the colonies to meet at Phila- delphia in September.^ While the messenger of the governor, sent to dissolve the assembly, was thundering at the door, the momentous resolve was passed and the call for united action against Great Britain was issued. The other colonies except Georgia responded to this appeal with alacrity by selecting, in some fashion or another, representatives for the general Congress. The method of choice varied so greatly that the Congress was in every way an irregular and revolutionary body. The colonies without the consent of the British crown can scarcely be said to have enjoyed the right of calhng and organizing such a congress. In Massachusetts, Rhode Island, and Pennsylvania, the repre- sentatives were chosen informally by the colonial assembly; .P in New Hampshire they were selected by a meeting of delegates ' appointed by the several towns. In Connecticut they were elected by committees of correspondence; in New York prac- tically by the Revolutionists of New York county; in New Jersey, Delaware, Maryland, and Virginia by conventions com- on posed of county delegates, many of whom had been members of the colonial legislatures; in South Carohna by a "general meet- ing of the inhabitants of the colony," and in North Carohna by "a general meeting of the deputies of the province."- In all -., of these irregular elections, the lead was taken by the men who had been most active in the organization of committees of cor- respondence and the agitation against Great Britain. ,^, The general purpose of this Congress, ostensibly at least, was stated in the instructions which were given to the delegation of each colony by the body that elected it. These instructions ' This call is printed in the Readings, p. 18. .^li. ^The South Carolina Resolution appointing delegates is in the Read- irt'":, p. 19. f 24 American Government and Politics did not speak of union or independence; perhaps it was not thought wise by the leaders to announce any distinctly revo- lutionary purpose, even if they entertained it. The Massa- chusetts instructions authorized the delegates to consult upon the state of the colonies, and to deliberate and determine upon wise and proper measures to be recommended for the recovery /and establishment of their just rights and Uberties and the res- toration of harmony between Great Britain and the colonies. Indeed, most of the instructions indicated a desire to see good feehng restored; and those of South CaroUna only authorized the delegates to take "legal" measures to obtain the repeal of the obnoxious laws. The tone of the colonists was determined, however, and North CaroUna instructed her representatives to "take such measures as they may deem prudent to effect the purpose of describing American rights with certainty and guard- ing them from any future violation." As the whole procedure, strictly speaking, could not have been regarded as legal at all, the Hmitations imposed on the ^delegates could not have had anything more than moral force. The bodies that chose them were not independent and sovereign states with law-making powers, but groups of discontented sub- jects of Great Britain seeking a redress of grievances. In accordance with the letter of the instructions, the Congress con- tented itself with remonstrating against British pohcy, recom- mending the colonists to join in the non-importation of British goods, and adopting other measures calculated to bring the British government to terms. This boycott of British goods and the provisions for enforcing it had a marked effect on the course of events. It was agreed by the Congress that a committee should be chosen in every county, city, and town "by those who are quaUfied to vote for represen- tatives in the legislature, whose business it shall be attentively to observe the conduct of all persons touching this association." These local committees were instructed to pubHsh the names of all citizens who violated the terms of the boycott, to the end that all such foes to American rights might be publicly known and universally contemned. Thus a clear-cut test of allegiance to the revolutionary poHtical system was provided, and tribunals competent to deal with refractory citizens were authorized to Independence, Union, and Self-Government 25 apply the test.^ The Revolutionists, consciously or not, were burning their bridges behind them. The first Congress, furthermore, recommended the call of a / second Congress for the purpose of continuing the work thusV begun; and, acting on this suggestion, the revolutionary bodies in the colonies, organized in the form of the old assemblies, or conventions, or committees, selected the delegates to a new Congress. This time the instructions were a Httle more deter- mined in tone, and there was less talk about reconciliation and legal measures. The Massachusetts and New York instructions spoke of the restoration of harmony, but likewise of the firm and secure estabUshment of American rights and privileges; New Hampshire gave "full and ample power in behalf of this province to consent and agree to all measures which shall be deemed neces- sary to obtain redress of American grievances"; and the Con- necticut instructions authorized them *'to join, consult, and advise with other delegates on proper measures for advancing the best good of the colonies." When this second Congress met in Philadelphia on M a^ 10, 1775, the cause of Revolution had advanced beyond the stage of mere negotiation. Within two months, Ethan Allen's troops took Fort Ticonderoga "in the name of the Great Jehovah and the Continental Congress," the battle of Bunker Hill was fought, and Washington was called to the command of the American troops. In the midst of the crisis, Congress seized and exercised sovereign powers; it assumed the direction of the war; entered ' into diplomatic negotiations with other countries; declared in- ~* dependence,^ regulated common concerns; raised funds; and finally designed a firmer national union in the form of the Articles of Confederation. " It was not an assembly of delegates formally chosen and instructed by legally constituted states; it was the central organ, not of colonies or of states, but of that portion of the American population that was committed to the cause of Revolution. ' On the political significance of the first Continental Congress, see C. L. Becker, History of Political Parties in the Province of New York, 1760-76, University of Wisconsin Publications, 1909. • ^For the Declaration of Independence, see Readings, p. 21. 26 American Government and Politics Union under the Articles of Confederation The work of the second Congress had scarcely opened before the boldest of the leaders began to urge that independence was inevitable, and that it should be accompanied by confederation and negotiations with foreign powers/ As early as July 21, 1775, the Congress resolved itself into a committee of the whole to take into consideration the state of America, and Dr. FrankUn submitted a draft of a plan for confederation. Under the stress of the conflict without, Congress was compelled to postpone the immediate discussion and completion of the union, and it was not until the summer of the following year, June 11, 1776, that a committee was appointed to prepare articles of confedera- tion. The report of this committee made about one month later was then the subject of intermittent and lengthy debates. The report of the committee to the effect that, in determining all questions, each colony should have one vote, gave rise to a spirited discussion. Dr. Franklin urged that if the smaller colonies gave equal money and men they should have equal votes, and advocated that votes should be in proportion to num- bers. Franklin was supported by Dr. Rush, who represented the strong nationalist feeling, and/5nade a national plea against the doctrine that the states were equal. "It will tend," he said, "to keep up colonial distinctions. We are now a new nation. Our trade, language, customs, manners don't differ more than they do in Great Britain. The more a man aims at serving America, the more he serves his colony. It will promote factions in Congress and in the States; it will prevent the growth of freedom in America; we shall be loth to admit new colonies into the confederation. If we vote by numbers, liberty will be always safe. . . . We are dependent on each other, not totally inde- pendent States. . . . When I entered that door, I considered myself a citizen of America." ^ The view of Franklin and Rush was not shared by the ma- jority of the Congress, however. Mr. Sherman urged that they were representatives of states, not of individuals, though he was willing to see devised a system by which the states and » John Adams, Works, Vol. II, pp. 503-510. ^ Ibid., pp. 496 fif. Independence, Union, and Self-Government 27 individuals should both be represented. The Congress at last decided that each state retained ' 'its sovereign ty^ree dasu—-^ and independenc fc^ and every power^.i ii»fidtefei-Qa^jid right ^^ n^t expressly granted to the United States in Congress as- sembled, and provided that in Congress each state, regardless / of its area, population, and wealth, should have one vote. ^^ Other questions, notably taxation,^ were thoroughly con- sidered and the final draft approved in November, 1777. On the day that the agreement was reached, the Articles, accom- panied by a long and eloquent letter urging ratification, were submitted to the legislatures of the states. The framers pointed out the difficulty involved in the formation of a permanent union accommodated to the opinions and wishes of the delegates of so many states differing in habits, produce, commerce, and internal police; and recommended that the state legislatures review their work "under a sense of the difficulty of combining in one general system the various sentiments and interests of a con- tinent divided into so many sovereign and independent com- munities, under a conviction of the absolute necessity of uniting all our councils and all our strength to maintain and defend our common liberties. " ^ Notwithstanding the discouragements of the war then in progress and the imperative need for a closer cooperation to secure the independence declared in 1776, the states were slow in ratifying the Articles. It is true, eleven states accepted the plan of union within a year, but of these New York added a proviso that its acceptance should not be binding until the others had agreed, and some proposed alterations in the draft sub- mitted. It was not until the opening of 1781 that Maryland, which had so long abstained from ratification on account of the western land question, finally accepted the Articles of Confed- eration. At noon on March i of that year the roar of cannon from the ships of war in the Delaware announced to the world that the Union "begun by necessity" had been " indissolubly cemented." The government provided by the Articles of Confederation, as we shall see, became more famous for its weakness and short- > Jefferson, Works (Ford Ed.), Vol. I, pp. 38 ff. ^ Secret Journals of Congress, Vol. I, pp. 362 flf. 28 American Government and Politics comings than for its positive achievements.^ The management of the general interests of the United States was vested under the Articles in a Congress composed of not less than two nor more than seven delegates from each state, appointed as the state legislatures should direct, serving subject to recall at any time, and meeting annually. In this Congress, each state was given one vote and had to assume the expense of maintaining its dele- gates. No president or permanent executive was provided, but Congress was authorized to appoint a committee to serve during its recesses and discharge such duties as might be in- trusted to it. No confederate court was erected, but Congress was authorized to act as a court of appeal in cases of disputes between states, or provide for the creation of a special committee to try such causes on request. With this government, Hmited in its taxing and commercial powers, the states attempted to conduct their common business for a period of eight years with results that made inevitable a constitutional revolution.^ Formation of State Governments During the revolutionary conflict the colonial governments, regularly estabUshed under the authority of the British crown, broke down or passed into the possession of the popular party. From the royal province, the governor fled before the uprising of the people, and with his departure the executive and judicial branches in their higher ranges went to pieces. The New Hamp- shire constitution of 1776, for example, complained of "the sudden and abrupt departure of his Excellency John Wentworth, Esq., our late governor, and several of the council, leaving us destitute of legislation and no executive courts being open to punish criminal offenders; whereby the hves and property of the honest people of this colony are liable to the machinations and evil designs of wicked men." The New Hampshire as- sembly or lower house thereupon called a new congress, which was duly elected and assumed the powers of the government which had been thus abandoned. In Massachusetts, the royal governor summarily dissolved the assembly, and finding a new election, in September, 1774, resulting in the return of even ^ See Readings, pp. 25-34, for the Articles of Confederation, 2 See Readings, p. 38, and below, chap. iii. Independence, Union, and Self-Government 29 more contentious representatives, he annulled the writs of election; but in vain, for the men thus chosen met in spite of the governor's orders and assumed full authority of government in the commonwealth. In Connecticut and Rhode Island, where there were no royal governors to dissolve the assembHes, and in the proprietary colonies of Pennsylvania and Delaware, where such authority was not exercised by the governor, the assemblies, purged of the loyaHst element, took charge of directing the work of the Revolution. As a Pennsylvania Revolutionist wrote in 1775, "we must esteem it a particular happiness that we have a House of Assembly which from our constitution cannot be dissolved and which coincides with the [continental] Congress in the opposition to an arbitrary court." ^ Whatever the form, each colony during the Revolution had a legislature, congress, or convention chosen in some fashion by the supporters of the American cause. Sometimes the assembly was elected by popu- lar vote, royaHsts being excluded; sometimes the members were chosen by local meetings of Revolutionists; and sometimes by town authorities. These provisional assemblies seized on all the powers of government in their respective jurisdictions, made laws, levied taxes, raised troops, and directed the Revo- lution. For a few months at the opening of the contest with the mother country, while the future was uncertain and return to the old allegiance was not impossible, the colonists were at a loss to determine on just the form of government required by the situation. Under these circumstances, the provincial conven- tion of Massachusetts, then serving as the provisional govern- ment of that colony, applied to the Congress at Philadelphia in May, 1775, for expHcit instructions concerning the organization of a more regular government. To this request. Congress re- plied advising the convention that it was not bound by the late act of ParUament altering the charter of Massachusetts, and requesting it to ask the towns entitled to representation to choose their regular delegates to a new assembly which should act as the government until a royal governor could be secured pho would obey the terms of the charter. The convention tpmplied with this advice, and thus instituted a government ' Force, American Archives, Fourth Series, Vol. Ill, p. 1410. 30 American Government and Politics which remained in power until 1780, when the state constitution was put into force. The action of Massachusetts was followed in the autumn of that year (1775) by appHcations from New Hampshire, Virginia, and South CaroHna for instructions, to which the Congress replied advising them to " call a full and free representation of the people, in order to form such a form of government as, in their judgment, would best promote the happiness of the people and most effect- ually secure peace and good order in their provinces during the continuance of the dispute with Great Britain," In response to this advice, the temporary provincial conven- tion in New Hampshire ordered a general election of delegates to a new convention empowered to assume the government under the direction of Congress for one year, and this new convention, as soon as it met, drew up a form of government to "continue during the present unhappy and unnatural contest with Great Britain." Declaring that they would rejoice in reconciUation with the mother country, they nevertheless committed themselves to the care of the Continental Congress in whose wisdom and prudence they confided. This brief and fragmentary instru- iment, drawn up by men who could not foretell the outcome of ■the conflict then raging around them, remained the constitu- *tion of New Hampshire until after the estabhshment of peace, when it was replaced by the new and more elaborate instru- ment of 1784. South Carolina likewise followed the suggestion of Congress and drew up, in March, 1776, a constitution designed to serve until ''an accommodation of the unhappy differences between Great Britain and America" could be ob- tained. Neither of these instruments was submitted for popu- lar ratification, and neither was a state constitution, properly speaking, for both contemplated a possible return to the former allegiance. At length, in May, 1776, about two months before the formal Declaration of Independence, Congress, aware that such a step was inevitable, issued a general recommendation "to the respec- tive assemblies and conventions of the United Colonies, where no government sufficient to the exigencies of their aff air'^ ' "w" been hitherto established, to adopt such government as s' ci^ the opinion of the representatives of the people best c to the happiness and safety of their constituents in pa Independence, Union, and Self-Government 31 and America in general." ^ This recommendation met with general approval among the Revolutionists, and before the ex- piration of a year Virginia, New Jersey, Pennsylvania, Delaware, Maryland, Georgia, and New York had drafted new instruments of government as^ states, not as colonies uncertain of their des- tiny. Though Virginia and New Jersey completed their con- stitutions before the Fourth of July, they declared the dominion of Great Britain at an end. Virginia simply repudiated the authority of George III, and New Jersey expressly said in the written instrument that "all civil authority under him is neces- sarily at an end." Connecticut and Rhode Island, deeming the government they possessed under their ancient charters sufficient for their needs, drew up no new instruments, but merely renounced their allegiance to George III and continued their old systems without any structural change. South Carolina, in view of the temporary character of the document drafted in 1776, drew up a new and more complete constitution in 1778, and Massachu- setts, with more deHberation, put into effect in 1780 a constitu- tion which in its fundamental principles remains unchanged to-day — the original instrument having never been reorgan- ized. Thus the transition from colonies to states was completed,!, but in no instance was the issue submitted to popular approval Ih at the polls. r So irregular were the methods pursued by the Revolutionists of the various states in drawing up their constitutions that it is well-nigh impossible to make any general statement true of all of them, except that Delaware and Massachusetts were the only states that had their constitutions framed by regularly organized' conventions summoned for that special purpose and confining their activities to the single function of framing an instrument of government. In all of the other colonies, the bodies that drafted the constitutions were primarily engaged in the main- tenance of orderly government during the crisis and in meeting the demands which fell upon them through the exigencies of war. The procedure, however, may be illustrated by the events in Pennsylvania. There the " Committee of the City and Liber- ties of Philadelphia," a revolutionary and voluntary body, in pur- ^ Readings, p. 35. 32 American Government and Politics pursuance of the advice of Congress given in May, 1776, de- spatched to the county committees circular letters asking the appointment of delegates to a provincial conference. In response to this call, the convention, composed of ninety-seven members, assembled in the city of Philadelphia on June 18, and after due deUberation decided that a special convention should be called for the purpose of drafting the constitution, and that it should be composed of eight representatives from the city of Phila- delphia and each of the counties. In spite of their declaration that all authority came from the people, the preHminary conference at Philadelphia had no inten- tion of admitting all of the people to a vote in the election of the delegates to the coming constitutional convention. On the con- trary they expressly excluded such as were not county or provin- cial tax-payers, those who would not take an oath to support the Revolutionary cause, and those who had been published by the committee of public safety as enemies to the liberties of Amer- ica. What proportion of the adult males the voters, under these strict hmitations, actually composed, it is impossible to determine, but it is safe to assume that the work of transforming the colony into a state was accomplished by an energetic minor- ! ity. Moreover, the constitution which the new convention com- pleted in September, 1776, was not submitted to the people for popular ratification. A somewhat similar process was followed in Maryland,^ where the provisional revolutionary congress, on receipt of the instruc- tions of Congress, resolved that "A new convention be elected for the express purpose of forming a new government by the au- thority of the people only and enacting and ordering all things for the preservation, safety, and general welfare of this colony." The call for the election of the new convention, in addition to excluding the "enemies of the liberties of America," placed restrictions on the suffrage as follows: "All freemen above twenty-one years of age, being freeholders of not less than^fifty acres of land or having visible property in this colony to the value of £40 sterHng at least, and no others be admitted to vote for representatives to serve in the said convention for the said counties and districts, and the town of Baltimore aforesaid; * See Readings, p. 36. Independence, Union, and Self-Government 33 and that all freemen above twenty-one years of age, owning a whole lot of land in the said city of Annapolis, or having a visible estate of £20 sterling at the least within this province or having served five years to any trade within the said city and being a housekeeper, and no others be admitted to vote for representa- tives to serve in the said convention for the said city." The constitution drafted by the convention elected by these voters was not submitted for ratification on its completion in Novem- ber, 1776. Thus America came out of the Revolution a union of thirteen ; states, loosely bound together under the Articles of Confedera-/ tion. Each state, except Rhode Island and Connecticut which >^ continued their colonial charters, had a new written constitu- 1 tion based for practical purposes upon the precedents which had been established during colonial times. Seven years of war. and the overthrow of British dominion had left the social order/ essentially unchanged. CHAPTER III THE ESTABLISHMENT OF THE FEDERAL CONSTITUTION Quite naturally the men who led in stirring up the revolt against Great Britain and in keeping the fighting temper of the Revolutionists at the proper heat were the boldest and most radical thinkers — men like Samuel Adams, Thomas Paine, Patrick Henry, and Thomas Jefferson. They were not, generally speaking, men of large property interests or of much practical business experience. In a time of disorder, they could consist- ently lay more stress upon personal liberty than upon social control; and they pushed to the extreme Hmits those doctrines of individual rights which had been. evolved in England during the struggles of the small landed proprietors and commercial I classes against royal prerogative, and which corresponded to the jeconomic conditions prevaihng in America at the close of the •eighteenth century. CThey associated strong government with monarchy, and came to beheve that the best political system was ^' one which governed least.j A majority of the radicals viewed all government, especially if highly centraHzed, as a species of evil, tolerable only because necessary and always to be kept down to an irreducible minimum by a jealous vigilance. (Jefferson I put the doctrine in concrete form when he declared that he pre- iferred newspapers without government to government without Inewspapers. J^The Declaration of Independence, the first state •constitutions, and the Articles of Confederation bore the impress of this philosophy. In their anxiety to defend the individual against government interference and to preserve to the states 1a large sphere of local autonomy, these Revolutionists had set up a system too weak to achieve even the primary objects of government; namely, national defence, the protection of property, and the advance ment^ of commerce. They were not unaware of the character of their handiwork, ^ut many believed with Jefferson that "man was a rational animal endowed by nature with rights and with an innate sense of justice and that he could 34 i The Establishment of the Federal Constitution 35 be restrained from wrong and protected in right by moderate powers confided to persons of his own choice. 'j ^ Occasional riots and disorders, they held, were preferable to too much government. The new American poUtical system based on these doctrines had scarcely gone into effect before it began to incur opposition from many sources. The close of the Revolutionary struggle removed the prime cause for radical agitation and brought a new group of thinkers into prominence, ^hen independence had been gained, the practical work to be done was the maintenanc^ of social order, the payment of the pubHc debt, the provision! of a sound financial system, and the estabUshment of conditions! favorable to the development of the economic resources of the new country./ The men who were principally concerned in this work of peaceful enterprise were not the philosophers, but men of business and property and the holders of public securities — P ''a strong and intelligent class possessed of unity and informed by a conscious solidarity of interests." ^ (For the most part they had had no quarrel with the system of class rule and the strong centralization of government which existed in England. It . was on the que stion of policyjjiot of governmental structure, that I they had broken with the Briti^^utFonties. "JBy no means all of them, in fact, had even resisted the policy of the mother I country, for within the ranks of the conservatives were large numbers off Loyahsts who had remained in America, and, as was to have been expected, c herished a_ hit ter feeling ag^JTist the Re voluti onists, especially the radical section which had been boldest in denouncing the EngHsh system root and branch? In other words, after the heat and excitenlent of the War of Independence were over and the new government, state and ; national, was tested by the ordinary experiences of traders, ^ financiers, and manufacturers, it was found inadequate, andj these groups accordingly grew more and more determined toj reconstruct the political system in such a fashion as to make it I subserve their permanent interests. ' Readings, p. 93. ^ Wilson, Division and Reunion, p. 12. 36 American Government and Politics Reasons for the Failure of the Articles of Confederation * To understand the seriousness of the situation for this influ- ential portion of the population, it is necessary to examine some- what closely the precise ways in which the confederate system; failed to afford adequate guarantees to property and commerce. I. The most obvious defect of the government under the. Articles was its inability to pay even the interest on the publicly debt, most of which had been incurred in support of the war. In spite of the most heroic efforts, the arrears on that portion of the debt held by American citizens increased within five years (1784-89) from $3,109,000 to $11,493,858, and at the same time the arrears on the foreign debt multiplied about twenty-five fold. In short, a large group of public creditors were failing to receive the interest due them on government securities. It would have been exercising almost superhuman faculties for them to have quietly acquiesced in the indefinite continuance of such a government and such a policy. Indeed, the system of raising money provided by the Articles of Confederation was so constructed as to give them no hope that, during its continuance, the long-delayed payments could ever be effected. The confederate Congress had no immediate <*^ jt.ax ing power: all charges of war and all other expenses were to be defrayed out of a common treasury supplied through levies made by the legislatures of the several states in proportion to the value of the land within each state. Limited to one form of taxation ^ — dire ct tax ation by quotas at that — and dependent upon the will of the^ ^jLate legislatures for all payments, the con- federate Congress really could do nothing but recommend con- tributions, and was in fact compelled to beg from door to door only to meet continued rebuffs, and to sink deeper and deeper in debt from year to year. I Not only was the Congress thus limited in its resources to I quotas imposed on the states; the very principle of apportion- Iment according to the value of lands, buildings, andimprove- ^ For Madison's concise summary, see Readings, p. 38. J 2 This tax, it will be noted, fell principally on the freeholders; and a|| they constituted the major portion of the voting population of each state, it is easy to see why the state legislatures were remiss in paying their respective quotas into the common treasury. I The Establishment of the Federal Constitution -t^"] ments was itself unjust as measured by the prevailing doctrines of taxation. "The wealth of nations," it was urged in The Federalist, "depends upon an infinite variety of causes. . . . There can be no common measure of national wealth, and, of course, no general or stationary rule by which the ability of a state to pay taxes can be determined. The attempt, therefore, to regulate the contributions of the members of the confederacy by any such rule cannot fail to be productive of glaring inequality and extreme oppression. This inequality would of itself be sufficient in America to work the eventual destruction of the Union, if any mode of enforcing comphance with its requisitions could be devised." ^ This objection that the system of taxation was unjust only added a welcome sanction to the natural dislike of states to pay direct contributions in a lump sum to a distant central govern- ment — a dislike which Bismarck discovered long afterward in his experience with the matricular contributions in the German Empire. ( Consequently the states of the Union vied with each other in delaying the payments of their quotas into the common treasury.\ As the modern holder of personal property pleads the evasions of others as a justification for not paying taxes onJ the full valuation of his own property, so each backward statej pleaded the delays of other states, and hesitated to pay even when it could, on the ground that it might contribute more than its share. During a period of about four years, from November II, 1 781, to January i, 1786, Congress laid on the states more than $10,000,000 in requisitions, and received in payment less than one-fourth of the amount demanded. During the fourteen months preceding the formation of the new federal Constitution less than half a million was paid into the confederate treasury I — not enough to pay the interest on the foreign debt alone.' Had it not been for the loans which the bankers of Holland were willing to make to the struggUng republic, the confederacy would surely have been confronted by bankruptcy and total ruin before relief came. | 2. The dis'satisf action of the financial interests was morcii than equalled by the dissatisfaction of traders and manufacturers,^ both in America and Europe, with the unbusiness-like character » The Federalist, No. XXI. [ 38 American Government and Politics of the confederate Congress. It is true that the Congress could regulate foreign commerce by making treaties with foreign powers and that the states were forbidden to lay any imposts or duties which might interfere with certain of these agreements, but in practice the confederate government was unable to enforce treaty stipulations on the unwilling states that insisted on regu- lating commerce in their own way. The states bid against one another for trade; they laid duties on goods passing through their limits, thus stirring up strife among themselves; and, what was no less disastrous, they lost the advantages which a reasonable degree of cooperation would have gained.^ The disordered state of American commerce under the Articles of Confederation can best be described in the felicitous language of John Fiske: "The different states, with their different tariff and tonnage acts, began to make commercial war upon one another. No sooner had the other three New England states virtually closed their ports to British shipping than Connecticut threw hers wide open, an act which she followed up by laying duties upon imports from Massachusetts. Pennsylvania dis- criminated against Delaware, and New Jersey, pillaged at once by both her greater neighbors, was compared to a cask tapped at both ends. The conduct of New York became especially selfish and blameworthy. ... Of all the thirteen states, none behaved worse except Rhode Island. "A single instance, which occurred early in 1787, may serve as an illustration. The city of New York had long been supplied with firewood from Connecticut^ and with butter and cheese, chickens and garden vegetables, from the thrifty farms of New Jersey. This trade, it was observed, carried thousands of dollars out of the city and into the pockets of detested Yankees and despised Jerseymen. It was ruinous to domestic industry, said the men of New York. . . . Acts were accordingly passed, ^ " No nation acquainted with the nature of our political system," declared Hamilton in No. XXII of The Federalist, "would be unwise enough to enter into stipulations with the United States, conceding on their part privileges of importance, while they were apprised that en- gagements on the part of the union might at any moment be violated by its members; and while they found from experience that they might enjoy every advantage they desired in our markets without granting us any in return, but such as momentary convenience might suggest." The Establishment of the Federal Constitution 39 obliging every Yankee sloop which came down through Hell Gate, and every Jersey market boat which was rowed across from Paulus Hook to Cortlandt Street, to pay entrance fees and obtain clearances at the custom-house, just as was done by ships from London or Hamburg; and not a cartload of Connecticut j&rewood could be delivered at the back door of a country house in Beekman Street until it should have paid a heavy duty. . . . The New Jersey legislature made up its mind to retaUate. The city of New York had lately bought a small patch of ground on Sandy Hook, and had built a Hghthouse there. . . . New Jersey gave vent to her indignation by laying a tax of $1800 a year on it. Connecticut was equally prompt. At a great meet- ing of business men, held at New London, it was unanimously agreed to suspend all commercial intercourse with New York. Every merchant signed an agreement, under penalty of $250 for the first offence, not to send any goods whatever into the hated state for a period of twelve months." ^ 3. The monetary system under the Articles of Confederation was even in worse confusion, if possible, than commerce. During the Revolution, Congress had created an enormous amount of paper money which so speedily declined in value that in 1780 one paper dollar was worth less than two cents in specie. It took eleven dollars of this money to buy a pound of brown sugar in Virginia; seventy-five dollars for a yard of linen; and one hundred dollars for a pound of tea. Jefferson records that he paid his physician $3000 for two calls in 1781, and gave $355.50 for three quarts of brandy. (After the Revolution, the great majority of states continued to issue paper money without any currency basis. ) In Rhode Island a most extraordinary conflict occurred over the control of the monetary system. The farmers, being in a majority, secured the passage of a law authorizing the issuance of money to themselves on the basis of mortgages against their farms. The merchants refused to accept this paper, and it promptly declined to about one-sixth of its nominal value. Heavy penalties then were placed upon those who would not accept it, but without avail. Merchants closed their shops rather than yield, and farmers refused to bring produce to town in the hope of starving the merchants out. In nearly every 'J. Fiske, The Critical Period of American History, pp. 144-147. 40 American Government and Politics state determined efforts were made to force creditors to accept depreciated paper in payment of lawful debts./ It is small won- der, therefore, that the framers of the federal Constitution in- serted clauses in that instrument forbidding states to emit bills of credit, make anything but gold and silver coin a legal tender in payment of debts, or pass any law impairing the obligation of contracts.| It is small wonder also that merchants and creditors everywhere welcomed this measure of relief when the new Con- stitution was laid before them for ratification. 4. Shays' rebellion in Massachusetts showed that grave dangers to pubUc order might arise in any state and that the duly con- stituted authorities might be overthrown by violence if no assistance could be secured from neighboring states or the fed- eral authority. The heavy public debt in Massachusetts had necessitated heavy taxes, and the attempt of creditors to recover debts due them added to popular discontent. "A levelUng, Hcentious spirit," says Mr. Curtis, "a restless desire for change, and a disposition to throw down the barriers of private rights, at length broke forth in conventions, which first voted themselves to be the people and Ishen declared their proceedings to be con- stitutional. At these assembhes the doctrine was publicly . broached that property ought to be common, because all had ^ aided in saving it from confiscation by the power of England. Taxes were voted to be unnecessary burdens, the courts of jus- tice to be intolerable grievances, and the legal profession a nui- sance. A revision of the [state] constitution was demanded, in order to abolish the Senate, reform the representation of the people, and make all the civil officers eligible by the people. . . . Had the government of the state been in the hands of a person less firm and less careless of popularity than Bowdoin it would have been given up to anarchy and civil confusion." ^ 5. The impotence which characterized the confederate gov- ernment in enforcing measures of taxation and commercial treaties against recalcitrant states extended throughout the whole domain of its nominal authority. It was dependent almost i wholly upon the states for the enforcement of its laws, and yet it had no express power to exact obedience from them or to punish them by pecuniary penalties or suspension of privileges. Who- * Constitutional History of (he United States, Vol. I, p. 181. The Establishment of the Federal Constitution 41 ever argued that such a right was necessarily inherent in every government was met by the contention that the Articles them- selves provided "that each state retained every power, juris- diction, and right not expressly delegated to the United States in Congress assembled." Indeed, as Madison afterwards pointed out in the convention at Philadelphia, " the use of force against a state would look more Hke a declaration of war than an inflic- tion of punishment and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound." * Thus was afforded "the extraordinary spectacle of a government destitute even of a shadow of a con- stitution^:!, power to enforce the execution of its own laws." - 6. This reduction of the confederate government's power to a shadow was the logical result of what Hamilton regarded as the great and radical vice of the Articles of Confederation; namely, the principle of legislation for states in their collective or corpo-^ rate capacity as distinguished from the individuals of which they were composed.^ Subject to the rule of apportionment, Con- gress could demand an unlimited supply of money and men from the states, but in both these important ftiatters, upon which, in final analysis, the foundations of all government rest, Congress could bring no pressure to bear upon any individual. It was practically restricted to transactions with states — corporate entities — represented by transient and often hostile legislatures, so that the complete enforcement of any measure of taxation required the concurrence of thirteen different bodies — a con- juncture which was well-nigh impossible to secure in practice. For the purpose of safeguarding and advancing the interests of a nation with such vast natural resources at its command, a more inadequate instrument could scarcely be imagined; and the gravity of the situation was all the more serious because the Articles required the consent of every state to the slightest amend- ment. It was not merely the Confederation that failed — the entire system, state and national, did not correspond to the real and permanent interests of that portion of the population who by reason of their property and intelligence possessed both the will and the capacity for concerted action on a scale large enough » Elliot's Debates, Vol. V, p. 140. ^ The Federalist, No. XXI. 3 lUd., No. XV. 42 American Government and Politics to overthrow the confederate government and set up an adequate system of union in its stead. The Movement for Constitutional Revision The Congress of the Confederation was not long in discovering the true character of the futile authority which the Articles had conferred upon it. The necessity for new sources of revenue became apparent even while the struggle for independence was yet undecided, and, in 1781, Congress carried a resolution to the^ ] effect that it should be authorized to lay a duty of five per cent on certain goods. This moderate proposition was defeated because Rhode Island rejected it on the grounds that "she regarded it the most precious jewel of sovereignty that no state shall be called upon to open its purse but by the authority of the state and by her own officers." Two years later Congress/^ ) prepared another amendment to the Articles providing for cer- tain import duties, the receipts from which, collected by state officers, were to be applied to the payment of the public debt; but three years after the introduction of the measure, four states, including New York, still held out against its ratification, and the project was allowed to drop. At last, in 1786, Congress in ' a resolution declared that the requisitions for the last eight years had been so irregular in their operation, so uncertain in their collection, and so evidently unproductive, that a reliance on them in the future would be no less dishonorable to the understandings of those who entertained it than it would be dangerous to the wel- fare and peace of the Union. Congress, thereupon, solemnly added that it had become its duty ''to declare most explicitly that the crisis had arrived when the people of the United States, by whose will and for whose benefit the federal government was instituted, must decide whether they will support their rank as a nation by maintaining the public faith at home and abroad, or whether for the want of a timely exertion in establish- ing a general revenue and thereby giving strength to the Con- federacy, they will hazard not only the existence of the Union but of those great and invaluable privileges for which they have so arduously and so honorably contended." In fact, the Articles of Confederation had hardly gone into effect before the leading citizens also began to feel that the powers The Establishment of the Federal Constitution 43 of Congress were wholly inadequate. In 1780, even before /. their adoption, Alexander Hamilton proposed a general con- vention to frame a new constitution, and from that time forward he labored with remarkable zeal and wisdom to extend and popu- larize the idea of a strong national government. Two years later, the assembly of the state of New York recommended a convention to revise the Articles and increase the power oj^ Congress. In 1783, Washington, in a circular letter to the gov- ernors,^ urged that it was indispensable to the happiness of the individual states that there should be lodged somewhere a su- preme power to regulate and govern the general concerns of the confederation. Shortly afterward (1785), Governor Bowdoin, of Massachusetts, suggested to his state legislature the advis- ability of calling a national assembly to settle upon and define the powers of Congress; and the legislature resolved that the government under the Articles of Confederation was inefficient and should be reformed; but the resolution was never laid before Congress. In the same year, however, that the Massachusetts resolution was passed, commissioners, selected by Maryland and Virginia for the purpose of reaching an agreement respecting the naviga- tion of the Potomac, recommended the appointment of a new commission with power to arrange a tariff schedule, subject to the consent of Congress, to be enforced by both states. There- upon, Virginia invited all the other states to send delegates to . a convention at Annapolis to consider the question of duties on/ imports and commerce in general. When this convention as- sembled in 1786, delegates from only five states were present, and they were disheartened at the limitations on their powers and the lack of interest the other states had shown in the project. With remarkable foresight, however, Alexander Hamilton seized > the occasion to secure the adoption of a recommendation advising the states to choose representatives for another convention to meet in Philadelphia the following year "to consider the Articles of Confederation and to propose such changes therein as might render them adequate to the exigencies of the union." This recommendation was cautiously worded, for Hamilton did not ' This letter is printed along with other important materials bearing on the movement for the Constitution in Professor Lawrence Evans' Writings of Washington (1908). 44 American Government and Politics want to raise any unnecessary alarm. Accordingly no general reconstruction of the political system was suggested; the Articles of Confederation were merely to be "revised"; and the amend- ments were to be approved by the state legislatures as provided by that instrument. The proposal of the Annapolis convention was transmitted to the state legislatures and laid before Congress. Congress there- upon resolved in February, 1787, that a convention should be held for the sole and express purpose of revising the Articles of Confederation and reporting to itself and the legislatures of the several states such alterations and provisions as would when agreed to by Congress and confirmed by the states render the federal constitution adequate to the exigencies of government and the preservation of the Union.^ In pursuance of this call, delegates to the new convention were chosen by the legislatures of the states or by the governors in conformity to authority conferred by the legislative assemblies.^ The delegates were given instructions of a general nature by their respective states, none of which, apparently, contemplated any very far-reaching changes. In fact, almost all of them expressly limited their representatives to a mere revision of the Articles of Confederation.^ For example, Connecticut authorized her delegates 'to represent and confer for the purpose mentioned in the resolution of Congress and to discuss such measures " agree- ably to the general principles of republican government" as they should think proper to render the Union adequate. Delaware, however, went so far as to provide that none of the proposed alter- ations should extend to the fifth part of the Articles of Confed- eration guaranteeing that each state should be entitled to one vote. The National Constitutional Convention oj lySy It was a truly remarkable assembly of men that gathered in Philadelphia in May, 1787, to undertake the work of recon- structing the American system of government. It is not merely ^ For this call, see Readings, p. 43. ^ Rhode Island alone was unrepresented. In all, sixty-two delegates were appointed by the states ; fifty-five of these attended sometime dur- ing the sessions; but only thirty-nine signed the finished document. ^ For example, see the New York instructions. Readings, p. 44. The Establishment of the Federal Constitution 45 patriotic pride that compels one to assert that never in the history of assemblies has there been a convention of men richer in poUti- /^ cal experience and in practical knowledge, or endowed with a . profounder insight into the springs of human action and the intimate essence of government. It is indeed an astounding fact that at one time so many men skilled in statecraft could be found on the very frontiers of civilization among a population numbering about four million whites. It is no less a cause for admiration that their instrument of government should have survived the trials and crises of a century that saw the wreck of more than a score of paper constitutions. On the memorable roll of that convention were Elbridge Gerry, Rufus King, Roger Sherman, Alexander Hamilton, Oliver Ellsworth, Benjamin FrankHn, Robert Morris, Gouverneur Morris, WiUiam Paterson, James Wilson, George Washington, Edmund Randolph, James Madison, John Rutledge, and the two Pinckneys — to mention only a few whose names have passed indeUbly into the records of American history. All the members had had a practical training in poHtics. Washington, as commander-in-chief of the revolutionary forces, had learned well the lessons and problems of war, and mastered successfully the no less difficult problems of administration. The. two Morrisg^ had distinguished themselves in grappling with financial questions as trying and perplexing as any which statesmen had ever been compelled to face. Seven of the delegates had gained poUtical wisdom as governors of their native states; and no less than twenty-eight had served in Congress either during the Revolution or under the Articles of Confederation. There were men trained in the law, versed in finance, skilled in administration, and learned in the political philosophy of their own and all earlier times. Moreover, they were men destined to continue public service under the government which they had met to construct — Presidents, Vice-Presidents, heads of departments, justices of the Supreme Court, were in that imposing body. They were equal to the great task of constructing a national system strong enough to defend the country on land and sea, pay every dollar of the lawful debt, and afford sufficient guarantees to the rights of private property. The criticism has been advanced that this assembly of great men was more interested in strong government than in democ- / 46 American Government and Politics racy. It must . be remembered, however, that they were con- vened not to write a Declaration of Independence, but to frame a government which would meet the practical issues that had arisen under the Articles of Confederation. The objections they enter- tained to direct popular government, and they were undoubtedly many, were based upon their experience with popular assemblies during the immediately preceding years. With many of the plain lessons of history before them, they naturally feared that the rights and privileges of the minority would be insecure if the principle of majority rule was definitely adopted and provisions made for its -exercise. Furthermore, it will be remembered that up to that time the right of all men, as men, to share in the gov- ernment had never been recognized in practice. Everywhere in Europe the government was in the hands of a ruling monarch or at best a ruling class; everywhere the mass of the people had been regarded principally as an arms-bearing and tax-paying multitude, uneducated, and with little hope or capacity for ad- vancement. Two years were to elapse after the meeting of the grave assembly at Philadelphia before the transformation of the Estates General into the National Convention in France opened the floodgates of revolutionary ideas on human rights before whose rising tide old landmarks of government are still being submerged. It is small wonder, therefore, that under the cir- cumstances many of the members of that august body held popular government in slight esteem and took the people into slight consideration — enough ''to inspire them with the neces- sary confidence," as Mr. Gerry frankly put it.^ Indeed, every page of the laconic record of the proceedings of the convention preserved to posterity by Mr. Madison shows conclusively that the members of that assembly were not seek- ing to reahze any fine notions about democracy and equaHty, but were striving with all the resources of political wisdom at their command to set up a system of government that would be stable and efficient, safeguarded on one hand against the possi- bihties of despotism and on the other against the onslaught of majorities. In the mind of Mr. Gerry, the evils they had ex- perienced flowed "from the excess of democracy," and he con- fessed that while he was still republican, he "had been taught by experience the danger of the levelling spirit." ^ Mr. Ran- ' Elliot's Debates, Vol. V, p. 160. ^ Ibid., Vol. V, p. 136. The Establishment of the Federal Constitution 47 dolph, in offering to the consideration of the convention his plan of government, observed "that the general object was to provide a cure for the evils under which the United States labored; that, in tracing these evils to their origin, every man had found it in the turbulence and follies of democracy; that some check there- fore was to be sought for against this tendency of our govern- ments; and that a good Senate seemed most likely to answer the purpose." ^ Mr. Hamilton, in advocating a life term for Senators, urged that " all communities divide themselves into the few and the many. The first are rich and well born and the other the mass of the people who seldom judge or determine right." ^ Gouverneur Morris wanted to check the "precipitancy, change- ableness, and excess" of the representatives of the people by the abiUty and virtue of men "of great and estabUshed property — aristocracy; men who from pride will support consistency and permanency. . . . Such an aristocratic body will keep down the turbulence of democracy." While these extreme doctrines were somewhat counterbalanced by the democratic principles of Mr. Wilson, who urged that "the government ought to possess, not only first, the force, but second the mind or sense of the people at large," Madison doubtless summed up in a brief sentence the general opinion of the convention when he said that to secure j private rights against majority factions, and at the same time to | preserve the spirit and form of popular government, was thev great object to which their inquiries had been directed.^ They were anxious above everything else to safeguard the rights of private property against any levelling tendencies on V the part of the propertyless masses. Gouverneur Morris, in speaking on the problem of apportioning representatives, cor- rectly, stated the sound historical fact when he declared: "Life and liberty were generally said to be of more value than property. An accurate view of the matter would, nevertheless, prove that] i- property was the main object of society. ... If property, thenj was the main object of government, certainly it ought to be on^ measure of the influence due to those who were to be affected by the government." * Mr. King also agreed that "property was the primary object of society; " ^ and Mr. Madison warned the * Elliot's Debates, Vol. V, p. 138. ^ Readings, p. 47. ' The Federalist, No. X ; Readings, p. 50. ♦ Elliot's Debates, Vol. V, p. 279. '^ Ibid., Vol. V, p. 280. 48 American Government and Politics convention that in framing a system which they wished to last for ages they must not lose sight of the changes which the ages would produce in the forms and distribution of property. In advocating a long term in order to give independence and firm- ness to the Senate, he described these impending changes: "An increase of population will of necessity increase the proportion of those who will labor under all the hardships of hfe and secretly sigh for a more equal distribution of its blessings. These may in tinie outnumber those who are placed above the feehngs of indigence. According to the equal laws of suffrage, the power will shde into the hands of the former. No agrarian attempts have yet been made in this country, but symptoms of a levelling spirit, as we have understood, have sufficiently appeared, in a certain quarter, to give notice of the future danger." ^ And again, in support of the argument for a property quaUfication on voters, Madison urged: "In future times, a great majority of the people will not only be without landed, but any other sort of property. These will either combine, under the influence of their common situation, — in which case the rights of property and the pubUc Hberty will not be secure in their hands, — or, what is more probable, they will become the tools of opulence and am- bition ; in which case there will be equal danger on another side." ^ Various projects for setting up class rule by the estabhshment of property qualifications for voters and officers were advanced in Ethe convention, but they were defeated. On account of the versity of opinion that prevailed, agreement was impossible, id it was thought best to trust this matter to the discretion and Lsdom of the states. Nevertheless, by the system of checks and balances placed in the government, the convention safeguarded the interests of property against attacks by majorities. The House of Repre- sentatives, Mr. Hamilton pointed out, "was so formed as to render it particularly the guardian of the poorer orders of citi- zens," ^ while the Senate was to preserve the rights of property and the interests of the minority against the demands of the majority.'' In the tenth number of The Federalist, Mr. Madison argued in a philosophic vein in support of the proposition that ' Elliot's Debates, Vol. V, p. 243. ^ /^^ Vol. V, p. 387. 3 Ibid., Vol. V, p. 244. " Ibid., Vol. V, p. 203. The Establishment of the Federal Constitution 49 it was necessary to base the political system on the actual conditions of ''natural inequality." Uniformity of interests throughout the state, he contended, was impossible on account of the diversity in the faculties of men, from which the rights of property originated; the protection of these faculties was the first object of government; from the protection of different and unequal faculties of acquiring property the possession of differ- ent degrees and kinds of property immediately resulted; from the influence of these on the sentiments and views of the respective proprietors ensued a division of society into different interests and parties; the unequal distribution of wealth inevitably led to a clash of interests in which the majority was liable to carry out its policies at the expense of the minority; hence, he added, in concluding this splendid piece of logic, "the majority, having^ such coexistent passion or interest, must be rendered by their \ number and local situation unable to concert and carry into I effect schemes of oppression"; and in his opinion it was the great I merit of the newly framed Constitution that it secured the rights ) of the minority against "the superior force of an interested and\ overbearing majority." ^ Drafting a National Constitution The convention had not proceeded very far in the considera- tion of the problems before it when the question was raised as to whether the delegates were bound by their instructions to the mere amendment of the Articles of Confederation or were free to make a revolution in. the political system. Mr. Paterson argued that the delegates were bound by their instructions : "If the Confederacy is radically wrong, let us return to our states and obtain larger powers, not assume them ourselves. . . . Our object is not such a government as may be best in itself, but such a one as our constituents have authorized us to prepare and as they will approve." ^ Mr. Randolph, however, declared that he "was not scrupulous on the point of power. When the salvation of the republic was at stake, it would be treason to our trust not ~ to propose what we found necessary." ^ With this view, Mr. Hamilton agreed: "We owed it to our country to do on this ^Readings, p. 50. ' Elliot's Debates, Vol. V, p. 194. 3 Ibid., Vol. V, p. 197. 50 American Government and Politics 1 emergency whatever we should deem essential to its happiness. The states sent us here to provide for the exigencies of the Union. To rely on and propose any plan not adequate to these exigencies . merely because it was not clearly within our powers would be to sacrifice the means to the end." ^ Fortunately for the cause of national union, these delegates '^^ threw off the restrictions placed upon them by their instructions, and frankly disregarded the fact that they had assembled merely to amend the Articles of Confederation, not to make a new instru- ment of government. They refused to be bound either by the letter or spirit of the Articles or their orders, for they even pro- -^ vided that the new government should go into effect when rati- fied by nine states, whereas under the Articles unanimous approval was required for any amendment. In order that their purposes should not be discovered and thwarted by pubhc criticism, the convention sat behind closed doors; their proceedings were kept secret; and members were even forbidden to correspond with outsiders on the topics under discussion. Not until the draft was finished did the people know what the convention had done, and even then they did not know the secret forces which had caused the introduction of certain clauses, or the full intention of the framers as to the ways in which the new government was designed to work. A large majority of the convention had determined to estab- lish a strong national government to take the place of the con- "^""fedwate system, and to do this it was absolutely necessary to throw aside the fundamental features of the Articles of Con- federation, which, according to their instructions, they were assembled to amend. On May 30, 1787, five days after the opening of the convention, a resolution was adopted in the Com- mittee of the WTiole, "that a national government ought to be estabHshed consisting of a supreme legislative, executive, and judiciary." ^ The distinction between a "federal and a national supreme government," was clearly explained by Gouvemeur Morris. "The former," he said, was "a mere compact resting on the good faith of the parties," while the latter had "a com- plete and compulsive operation"; and he concluded by adding that "in all communities there must be one supreme power and » Elliot's Debates, Vol. V, p. 199. - Ibid., Vol. V, p. 134. The Establishment of the Federal Constitution 51 one only." ^ Mr. Madison, in discussing the problem of repre- sentation, observed that "whatever reason might have existed for the equality of suffrage when the Union was a federal one among sovereign states, it must cease when a national govern- ment should be put in their place." ^ Mr. Read of Delaware even went so far as to say that the national government must soon of necessity swallow up all the state governments ; •' and Mr. Wilson of Pennsylvania declared that he could not even admit the doctrine that when the colonies became independent of Great Britain they were independent of each other, and contended that the colonies were not declared to be fi^e and independent states individually, but only unitedly."* Mr. Hamilton went even fur- ther than the other members of the convention in his stanch adherence to the idea of a supreme national government; he advocated the appointment of state executives by the general government and wanted to give Congress the power to legislate on every matter whatsoever."' That it was the desire of a majority of the convention to estab- lish a supreme national government is evidenced in nearly every page of the debates. That such was their intention was explicitly declared by Luther Martin, of Maryland, in a letter to the legis- lature of his state justifying his conduct in withdrawing from the convention. He contended that the plan of government, as devised by the convention, was " a national not a federal gov- ernment," and one "calculated and designed not to protect and preserve but to abolish and annihilate the state govemment.4." In criticising the advocates of a strong national government, he continued: " So far were the friends of the system from pretending that they meant it or considered it a federal system, that, at the question being proposed, * that a union of the states merely federal ight to be the sole object of the exercise of the powers vested in e convention,' it was negatived by a majority of the mem>>ers; id it was afterwards resolved, ' that a national government ought be formed. ' Afterwards, the word * national ' was struck out by em because they thought the word might tend to alarm; and though now they who advocate this system pretend to call themstWes federalists, in convention the distinction was quite the ' Elliot'* DdnUes, Vol. V, p. 133. * Ibid., Vol. V, p. 135. » Ibid., VoL V, p. 163. * Ibid., Vol. V, p. 213, * Ibid., Vol. V, p. 205. 52 American Government and Politics reverse; those who opposed the system were there considered and styled the federal party, those who advocated it, the anti- y In devising this national system it was necessary to make Vfnany compromises.^ In the first place, the small states demanded equal representation and the large states representation accord- ing to population; a compromise gave the small states equality in the Senate and the large states proportional representation in the lower House. In the next place, the slave states wished to have slaves counted in the apportionment of representation — a demand which was stoutly opposed by the non-slave states; \ and a compromise was reached by the provision that in appor- tioning representation and direct taxes only three-fifths of the total number of slaves should be counted. In the third place, the North, having larger commercial interests than the South, wished to gtve Congress the power to regulate commerce, but the fO South, being solicitous of the slave trade, feared its prohibition in case unqualified power was vested in Congress; and the result was a compromise authorizing Congress to regulate com- merce, but forbidding it to prohibit the importation of slaves before the year 1808. In addition to these great compromises which had to be made on account of the diversity among the states in area, popula- tion, and wealth, there was a still greater compromise — the most fundamental one of all — the compromise between that party in the nation which wanted a government strong enough to pay the national debt, regulate commerce, protect creditors, and sustain property rights in general, and that other party which was especially concerned about a democratic and confederate •^ form of government. The result here was a compromise whirh, i Madison contended, secured the spirit and form of popular 01: ernment while preventing direct and simple majority rule.' th . This compromise, in conjunction with the compromises nai I tioned above, resulted in the establishment of what is kr tc as the check and balance system. In this system, the'^Pcesi- tl is elected for a four-year term by an indirect process; the Sei t^ys-are elected for a six-year term (one-third going out every Elliot's Debates, Vol. I, p. 362. For a contemporary view, Readings, p. 45. ' See Readings, p. 52 i The Establishment of the Federal Constitution 53 two years) by another process — by the state legislatures; the members of the House oi.£^resentatives are elected by another process — popular vote — for a term of two years; and over against these three institutions is set a Snprerpe Court composed of judges appointed by another process — the President and Senate — for Ufe terms, and enjoying the power to declare null and void the unconstitutional acts of the other departments. It is highly improbable, therefore, that any political party at a single national election may secure an unqualified control over all of these departments of government and rush through any ex- tremely radical measure. This system is eloquently described in a little anecdote related of Jefferson and Washington. The former on one occasion was advancing many objections to a bicameral legislature, when Washington repHed, " You yourself have proved the excellence of two houses this very moment." Astonished at this Jefferson inquired, " I ? How is that, General ?"" You ** have," explained Washington, "turned your hot tea from the cup into the saucer to get cool. It is the same thing we desire of the two Ijouses." Fundamental Features of the New System I . The Articles of Confederation provided no separate executive department charged with the high function of enforcing federal law. This grave defect was carefully considered by the convention, and warmly discussed by the advocates of the new system. All were agreed that a strong executive power was indispensable, \ but they were uncertain as to whether such an important au- thority should be vested in a single person or in a directorate. J They also had no little diflftculty in deciding on the method by which the chief magistrate was to be elected. On the point of a single executive armed with large powers, Hamilton argued with great cogency: "Energy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks. It is not less essential to the steady administration of the laws, to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice, to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy. 54 American Government and Politics Every man, the least conversant with Roman story, knows how often that republic was obhged to take refuge in the absolute powerkof a single man, under the formidable title of dictator, as well against the intrigues of ambitious individuals who aspired to the tyranny, and the seditions of whole classes of the community whose conduct threatened the existence of all government, as against the invasions of external enemies who menaced the conquest and destruction of Rome." ^ Such weighty considerations prevailed in the convention, and an executive department with a single head endowed with regal powers was created. To meet the objection of those who were afraid of intrusting too much political control to the mass of the people, it was decided that the President should be chosen in- I directly by electors appointed as the legislatures of the several states might determine. 2. No less grave defects were inherent in the legislature created by the Articles of Confederation. Three, in particular, engaged the attention of the convention :^ the. equality of the several states, large and small, in voting power f^the instability of a single chamber; and thelLbsence of direct representation of the people in the Congress — the delegates being appointed by their respec- tive state legislatures and thus dependent upon the states as corporate entities rather than upon the people thereof. The convention accordingly decided upon a bicameral legislature: a Senate affording equal representation to all states and a House composed of representatives apportioned among the states on a basis of population. Moreover, the significant fact must not be overlooked, that it was provided that the members of the new Congress were to be paid from the national treasury and thus relieved from all dependence upon state revenues. "If the states were to pay the members of the national legislature," said Randolph in the convention, "a dependence would be created that would vitiate the whole system. . . . The national treasury, therefore, is the proper fund for supporting them." - 3. The crowning defect of the Articles, according to Hamilton, was the w^pt ^f p rpntral^ jnHiriary The old Congress had no authority to organize courts of general jurisdiction, although it could act as a tribunal of "last resort on appeal in all 1 The Federalist, No. LXX. ^ EUiot's Debates, Vol. V, p. 226. The Establishment of the Federal Constitution 55 disputes and differences arising between two or more states con- cerning boundary, jurisdiction, or any other cause whatever." ^ It therefore had no way of enforcing federal laws by judicial process,- and as Hamilton said: "Laws are a dead letter without' courts to expound and define their true meaning and operation. The treaties of the United States, to have any force at all, must be considered as a part of the law of the land. Their true import as far as respects individuals, must Uke all other laws be ascer- tained by judicial determinations. To produce uniformity in these determinations they ought to be submitted in the last re- sort to one supreme tribunal." ^ Moreover, Hamilton, fearing the aggression of the legislature, believed that the court should have the power of declaring laws unconstitutional. Accordingly a Supreme Court, and inferior courts to be erected by Congress, were given jurisdiction over all cases arising under the Constitu- tion, federal laws, and treaties — a jurisdiction by later congres- sional enactment and judical decision interpreted to include the power of declaring state and federal laws unconstitutional. 4. The financial and commercial objections to the Articles of Confederation were met by two important provisions. The necessity of depending upon the state legislatures for federal (; funds was entirely eliminated by the clause authorizing Congress^ to raise revenues by taxes, duties, and excises bearing imme- diately upon the people as individuals. The continuation of the commercial warfare among the states was prevented by the clause empowering Congress to regulate commerce among the sev-^ ^ eral states and with foreign nations, as well as with the Indians. The national government was also authorized to establish uni- form bankruptcy laws and thus exercise at will an effective check upon the shrewdly devised state legislation through which debtors sought to escape from some of their obligations.^ No less important for financial and commercial purposes were ; the restrictions laid upon the powers of the states. They were forbidden to emit bills of credit, make anything but gold and silver coin tender in payment of debts, pass ex post facto laws, lay duties on imports or exports (except with the consent of Congress for specific purposes), lay tonnage duties, or pass any law impair- ing the obhgation of contract. ' See Readings, p. 30. ^ Except in maritime and admiralty matters. ' The Federalist, No. XXII. " See Readings, pp. 236 ff. 56 American Government and Politics 5. Special effectiveness was given to the new powers conferred upon the national government by authorizing it to deal with individuals instead of thirteen distinct and separate states. Hence it was no longer possible for states to violate and disregard treaties made by the federal government, or to look upon federal laws as mere recommendations to be obeyed if desirable or neg- lected altogether. 6. Of particular significance was the clause p rovidin g for future amenjlaifittte. The Articles of Confederation had stipulated that no alteration should be made without the approval of Con- gress and ratification by the legislature of every state. The new Constitution bound every state to an amendment, in case it was I approved by two- thirds of both houses of Congress and ratified- ' by three-fourths of the states. Even this system, as events have proved, has required such extraordinary majorities as to make amendments by regular process well-nigh impossible. Radical as this departure may have seemed to the ardent champion of states' rights, it was not radical enough for Patrick Henry, for he declared in the Virginia convention called to ratify the Consti- tution that "Four of the smallest states, that do not collectively contain one-tenth part of the population of the United States, may obstruct the most salutary and necessary amendments. ... A bare majority in these four small states may hinder the adoption of amendments; so that we may fairly say and justly conclude that one-twentieth part of the American people may ^ prevent the removal of the most grievous inconveniences and oppression by refusing to accede to amendments. ... Is this an easy mode of securing the public hberty? It is, sir, a most fearful situation when the most contemptible minority can pre- vent the alteration of the most oppressive government; for it may, in many respects, prove to be such." * The Radfication of the Constitution It is evident from an examination of these departures from the Articles of Confederation that a revolution in our political system was contemplated by the framers of the Constitution. They were doubtless unaware of all the national impUcations ' Elliot's Debates, Vol. Ill, pp. 48-50. The Establishment of the Federal Constitution 57 contained in the instrument which they drafted, but they knew very well that the state legislatures, which had been so negligent in paying their quotas under the Articles and which had been so jealous of their rights, would probably stick at ratifying such a national instrument of government. Accordingly they cast aside that clause in the Articles requiring amendments to be ratified by the legislatures of all the states ; and advised that the new Constitution should be ratified by conventions in the several states composed of delegates chosen by the voters. They further- more declared — and this is a fundamental matter — that when the conventions of nine states had ratified the Constitution the new government should go into effect so far as those states were concerned. The chief reason for resorting to ratifications by conventions is laid down by Hamilton in the twenty-second number of The Federalist: "It has not a little contributed to the infirmities of the existing federal system that it never had a rati- fication by the people. Resting on no better foundation than the consent of the several legislatures, it has been exposed to fre- quent and intricate questions concerning the vaUdity of its powers; and has in some instances given birth to the enormous doctrine of a right of legislative repeal. Owing its ratification^ to the law of a state, it has been contended that the same author- ity might repeal the law by which it was ratified. However gross a heresy it may be to maintain that a party to a compact has a right to revoke that compact, the doctrine itself has respect- able advocates. The possibility of a question of this nature proves the necessity of laying the foundations of our national government deeper than in the mere sanction of delegated author- ity. The fabric of American empire ought to rest on the solid basis of the consent of the people. The streams of national power ought to flow immediately from that pure original fountain of all legitimate authority." Of course, the convention did not resort to the revolutionary policy of transmitting the Constitution directly to the conven- tions of the several states. It merely laid the finished instru- ment before the confederate Congress with the suggestion that it should be submitted to "a convention of delegates chosen in each state by the people thereof, under the recommendation of its legislature, for their assent and ratification; and each con- vention assenting thereto and ratifying the same should give 58 American Government and Politics notice thereof to the United States in Congress assembled." ^ The convention went on to suggest that when nine states had ratified the Constitution, the confederate Congress should ex- tinguish itself by making provision for the elections necessary to put the new government into effect.-^ "What they [the con- vention] actually did, stripped of all fiction and verbiage," says Professor Burgess, "was to assume constituent powers, ordain a Constitution of government and of liberty, and demand the plebiscite thereon, over the heads of all existing legally organized powers. Had Julius or Napoleon committed these acts, they would have been pronounced coups d'etat. Looked at from the side of the people exercising the plebiscite, we term the move- ment revolution. The convention clothed its acts and assump- tions in more moderate language than I have used, and professed to follow a more legal course than I have indicated. The exact form of procedure was as follows. They placed in the body of the proposed Constitution itself a provision declaring that rati- fications by conventions of the people in nine states (com- monwealths) should be sufficient for the establishment of the Constitution between the states (commonwealths) so ratifying the same. They then sent the instrument entire to the Con- federate Congress, with the direction, couched in terms of advice, that the Congress should pass it along, untouched, to the legis- latures of the commonwealths, and that these should pass it along, also untouched, to conventions of the people in each commonwealth, and that when nine conventions should have approved, Congress should take steps to put the new government into operation and abdicate. Of course the mass of the people were not at all able to analyze the real character of this proced- ure. It is probable that many of the members of the conven- tion itself did not fully comprehend just what they were doing. Not many of them had had sufficient education as publicists to be able to generalize the scientific import of their acts." ^ After the new Constitution was published and transmitted to the states, there began a determined fight over its ratification. A veritable flood of pamphlet literature descended upon the coun- * For document illustrating process of ratification, Readings, p. 54. 2 Readings, p. 53. ^ Burgess, Political Science and Constitutional Law, Vol. I, p. 105. The Establishment of the Federal Constitution 59 try, and a collection of these pamphlets by Hamilton, Madison, and Jay, brought together under the title of The Federalist — though clearly a piece of campaign literature — has remained a permanent part of the contemporary sources on the Constitution and has been regarded by many lawyers as a commentary second in value only to the decisions of the Supreme Court.;"' Within a year the champions of the new government foxmd themselves victorious, for on June 21, 1788, th e ninth state. New Ha mpshire, ratified the Constitution, and accordingly the new government might go into effect as between the agreeing states. Within a few weeks, the nationaUst party in Virginia and New York succeeding in winning these two states, and in spite of the fact that North Carolina and Rhode Island had not yet ratified the Constitution, Congress determined to put the instrument into effect in accordance with the recommendations of the convention. Elections for the new government were held; the date March 4, 1789, was fixed for the formal establishment of the new system; Congress secured a quorum on April 6; and on April 30, Wash- ington was inaugurated at the Federal Hall in Wall Street, New York. CHAPTER IV THE EVOLUTION OF THE FEDERAL CONSTITUTION If we use the term "Constitution" in the narrow sense as including only the provisions of the written instrument itself, the history of its development would be brief; but such a re- striction of the term would be sheer formalism, and a history based upon such an interpretation would be utterly misleading. For constitutional law, as Professor Dicey points out, includes I all the fundamental rules which directly or indirectly affect the I distribution and exercise of sovereign power; it includes among I other things the laws which define the suffrage, regulate the prerogatives of the chief magistrate, prescribe the form of the legislature, and determine the structure and functions of the hierarchy of officials. A comparison, therefore, of the existing body of law and custom relative to such matters with that ob- taining in the United States on the morning when Washington took the oath of office in Wall Street reveals most astonishing changes. Only fifteen new clauses, it is true, have been added , by way of amendment to the written dociunent, but Congress ' has filled up the bare outline by elaborate statutes; party opera- tions have altered fundamentally the spirit and working of much of the machinery; official practice has set up new standards from time to time; and the Supreme Court, by generous canons of interpretation, has expanded, in ways undreamed of by the Fathers, the letter of the law. In fact, the customs of our Con- stitution form as large an element as they do in the English con- stitution. A correct appreciation of the evolutionary character of the federal system is, therefore, necessary for a true under- standing of the genius of the American poUtical institutions. The Federal Amending Process The most obvious changes in our Constitution are, of course, \ those that have been effectedJi^L^the amendments, all of which are to be understood in connection with the historical circum- 60 (L. The Evolution of the Federal Constitution ( /' 6r stances that called them into existence. The system of amend- ment provided by the framers of the Constitution, while very simple in its nature, requires such extraordinary majorities both for initiation and ratification that, in practice, with the exception of the first eleven articles, no change has been made save under circumstances of a serious character. There are, in reality, four possible ways of amending the Con- stitution, although in practice only One has been used. A proposition to amend may originate in Congress, on the approval of two- thirds of both houses, ancT may be ratified by the~concur- rence of the legislatures, or of conventions, as Congress may determine, in tTifee-fourths of the states. vOn the other hand, -*" Congress, on the application of the legislatures of two- thirds of -2^ the states, must call a national convention for the purpose of Ql, drafting amendments which may be ratified by conventions, or "^7^/ by legislatures in three-fourths of the states. The composition of the national and state conventions, the procedure to be fol- lowed by the state legislatures in passing upon amendments, and numerous other questions^ are left unsettled by the brief article in the Constitution,^ but it is to be presumed that Congress may make such reasonable elaborations as it may see fit. On the occasions in which the federal Constitution has been amended, Congress has been very brief in its provisions.^ A proposition for an amendment is submitted by a resolution in the following form: "Resolved by the Senate and the House of Representatives of the United States of America in Congress assembled, two-thirds of both houses concurring. That the follow- ing article be proposed to the legislatures of the several states as an amendment to the Constitution of the United States which when ratified by three-fourths of the said legislatures shall be valid as part of the said Constitution." The states are then left to their own devices in approving or rejecting the proposal, Congress merely directing that "Whenever official notice is received at the Department of State thaC any amendment proposed to the Constitution of the United States has been adopted, according to the provisions of the Constitution, the Secretary of State shall forthwith cause the amendment to be published in the newspapers authorized to promulgate laws, * Burgess, Poliiical Science and Constitutional Law, Vol. I, p. 146. ' See Readings, pp. 56 ff. 62 American Government and Politics with his certificate specifying the states by which the same may have been adopted, and that the same has become valid, to all intents and purposes, as a part of the Constitution of the United States." The requirement of the approval of an exceptionally large number of states and the principle of allowing states equal weight, regardless of their population or wealth, has been the subject of much adverse criticism, from the protest of Patrick Henry, which we have noted, down to the objections of the most re- cent commentators. Professor Burgess makes an exceptionally powerful argument against the federal amending system: ''When I reflect that, while our natural conditions and relations have been requiring a gradual strengthening and extension of the powers of the central government, not a single step has been taken in this direction through the process of amendment pre- scribed in that article, except as the result of civil war, I am bound to conclude that the organization of the sovexeiga4)QY^.er within the Constitution has failed to accompTisKTthe purpose for which jit was constructed. . . . When a state must have recourse to war to solve the internal questions of its own politics, this is indisputable evidence that the law of its organization within the constitution is imperfect; and when a state cannot so modify and amend its constitution from time to time as to express itself truthfully therein, but must writhe under the bonds of its con- stitution from time to time until it perishes or breaks them asunder, this is again indisputable evidence that the law of its organization within the constitution is imperfect and false. . . . When in a democratic political society, the well-matured, long, and deliberately formed will of the undoubted majority can be persistently and successfully thwarted, in the amendment of its organic law, by the will of the minority, there is just as much danger to the state from revolution and violence as there is from the caprice of the majority where the sovereignty of the bare majority is acknowledged." ^ The extraordinary majorities required for the initiation and ratification of amendments have resulted in making it practically impossible to amend the Constitution under ordinary circum- stances, and it must be admitted that only the war power in the ^ Political Science and Constitutional Law, Vol. I, pp. 150 £f. The Evolution of the Federal Constitution 63 ands of the federal government secured the passage of the great clauses relating to slavery and civil rights. An observant scholar, Professor J. Allen Smith, has estimated that some twenty-two hundred amendments, including popular election of Senators, direct election of the President, and legislative control over the judiciary, have been proposed since the forma- tion of the Constitution, and have met defeat.^ Only one since 1870 — the pending Sixteenth Amendment — has secured the re- quisite two-thirds majority in the House and Senate, and it is by no means certain that a sufficient number of ratifications will be obtained. Professor Smith also estimates that, on the basis of the last census, one forty-fourth of the population distributed so as to constitute a majority in the twelve smallest states could prevent the ratification of a proposed amendment, even after it had got the requisite two-thirds vote in both Houses of Con- gress. The Adoption of Amendments I -XV to the Constitution The first ten articles of amendment to the Constitution were adopted so closely after the ratification of the original instrument that they may be deemed almost a part of it. During the struggles which occurred in many states over the acceptance of the new plan of government, it was manifest that a great deal of the op- position to it was based on the absence of any provisions expressly safeguarding individual rights against the action of the federal ^^ government. Jefferson, who was in Paris at the time the con- vention finished its work, wrote to a friend in Virginia that he wished four states would withhold ratification until a declaration of rights could be annexed, stipulating "freedom of religion, freedom of the press, freedom of commerce against monopoHes, trial by jury in all cases, no suspensions of habeas corpus, no standing armies." ^ Most of the state constitutions had pro- vided such limitations on their governments, and there was evi- dently a desire on the part of many, who otherwise approved the Constitution, to see the ancient doctrines on private rights embodied in it. Seven of the ratifying state conventions even ^ The Sp'irit of American Government, 1907, pp. 46 ff. ^ Quoted in Curtis, Constitutional History of the United States (1889), Vol. I, p. 669, note. 64 American Government and Politics put their wishes in the concrete form of a total of one hundred and twenty-four articles of amendment to be added to the Constitution/ In The Federalist, Hamilton argued ably that such provisions were superfluous and even dangerous, because they contained various exceptions to power not actually granted, and would thus afford a colorable pretext to claim more than was granted. "For," he contended, "why declare that things shall not be done I which there is no power to do? Why, for instance, should it be \ said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge with a semblance of reason that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication that a right to prescribe proper regulations con- cerning it was intended to be vested in the national government." ^ This very plausible argument was met with great cogency by Madison, introducing the proposed amendments in Congress in June, 1789; and the history of the Alien and Sedition laws later bore out the contentions he advanced. He admitted that the new government was limited to certain particular objects, but pointed out that even within the most narrowly circumscribed limits the government would have a discretionary power liable to abuse, and furthermore that this abuse was all the more prob- able in view of the express provision that Congress could make all laws necessary and proper for carrying into execution the powers expressly vested in the government of the United States. In support of this, Madison cited a single instance: "The General Government has a right to pass all laws which shall be necessary to collect its revenue; the means of enforcing the collection are within the direction of the legislature; may not general warrants lof arrest] be considered necessary for the purpose, as well as for some purposes which it was supposed, at the framing of their ' Ames, Proposed Amendments to the Constitution of the United States, pp. 183 ff. ^ The Federalist, No. LXXXIV. The Evolution of the Federal Constitution 65 constitutions, the state governments had in view? If there was any reason for restraining the state governments from exercising this power, there is like reason for restraining the federal govern- I ment." ^ He then went on to state that it was his conviction that such a measure would rally large numbers to the cause of Federalism, and that, on principles of amity and moderation, the great rights of mankind secured under the Constitution ought to be , expressly declared. After a delay of two months, the House passed seventeen amendments, whicji were reduced to twelve in the Senate, slightly modified at a joint conference com- mittee, and submitted to the states, by two-thirds vote on Septem- ber 25, 1789, with an accompanying resolution to the effect that it had been done to extend the ground of public confidence in the government and best insure the beneficent ends of its insti- tution. Two of the amendments deaUng with apportionment and payment of members of Congress failed to receive the ap- proval of the requisite number of states, but the other ten were ratified by eleven commonwealths, Virginia being the last to add her sanction, December 15, 1791. The Eleventh Amendment, providing that the judicial power of the United States shall not extend to any suit in law or equity, 1 commenced or prosecuted against one of the United States by I citizens of another state or by citizens or subjects of any foreign ( state, was the direct outgrowth of a judicial decision rendered by the Supreme Court in the case of Chisholm v. Georgia in 1793. That case involved the question as to whether a state could be sued by a private citizen; and the champions of states' rights stoutly held that the Supreme Court could not try an action by a citizen against a "sovereign state." The Court, however, held that it possessed such jurisdiction, directed the service of papers on the governor and attorney-general of Georgia, and ordered that, unless the state appeared in due form, judgment should be entered by default. This decision instantly aroused the indignation of the advo- cates of states' rights. The decision of the Court was reached on February 18, 1793; and two days later Senator Sedgwick, of Massachusetts, introduced into Congress the proposed amend- ment. The Massachusetts legislature soon afterward declared the power exercised by the Supreme Court "dangerous to the ' Annals of Congress, Vol. I, pp. 440 fif. 66 American Government and Politics peace, safety, and independence of the several states and repug- nant to the first principles of a Federal government"; and the Georgia house of representatives passed an act providing that any official who attempted the enforcement of the decision should be declared guilty of felony and suffer death without benefit oi clergy by being hanged.^ The proposed amendment, which was sent to the states by Congress in 1794, received the requisite approval of three-fourths of the states, and went into force ir 1798. Little more than two years had elapsed after the ratification of the Eleventh Amendment before a more serious crisis, in the presidential election of 1800, demonstrated the imperative neces- sity of reconstructing the section of the Constitution dealing with the balloting of the electors for President. The original system, which was prepared without taking into account the rise of parties and their effect on the framework of the government, provided that the presidential electors chosen in each state should cast their ballots for two persons, without designating which was tc be President or Vice-President; and then added: "The persor having the greatest number of votes shall be President, if such number be a majority of the whole number of electors appointed and if there be more than one who have such majority, and have an equal number of votes, then the House of Representatives shall immediately choose by ballot one of them for President and if no person have a majority, then, from the five highest or the list, the said House shall in like manner choose the President,' the representation from each state having one vote. In the election of 1800, Jefferson and Burr received seventy three votes each, and the latter, willing to defeat what he knev^ to be the real wishes of his party, sought to secure his election tc the presidency by gaining enough votes from the Federalists ir the House of Representatives where the election had been throwr under the constitutional provision. Fortunately his design wsa frustrated; but the outcome of the contest, and the low intrigue which accompanied it, revealed the necessity of requiring the electors to designate the persons for whom they cast their ballots as President and Vice-President respectively. ^ Professor H. V. Ames, in his valuable collection, State Documents on Federa, Relations, pp. 7 ff., gives this act and citations of authorities. The Evolution of the Federal Constitution 67 Accordingly an amendment to effect this reasonable change was introduced into the House of Representatives in February, 1802.* The arguments advanced in favor of it were simple and direct: the suffrages given for the election of the agents of gov- ernment ought to be an expression of public will; any provision liable to lead to the appointmenj: of a person not originally in- tended by a majority of the electors defeats the first principles of the American system; and finally, what more serious calamity could be imagined than a continued division of the House of Representatives — in case the choice should fall there — which might result in indefinite delay of a presidential election — by no means an impossible contingency.^ The arguments against the proposal were singularly weak: it was urged in favor of the smaller states that they would have a better chance of securing one or the other of the offices if the existing system was retained, because it threw contested elections into the House of Repre- sentatives where all states had an equal vote; and finally it would destroy the original design of having two of the ablest char- acters chosen without discrimination for the high office.^ Never- theless, the proposal, which received the requisife majority in Congress and then went to the states in December, 1803, was promptly ratified and declared in force on September 25, 1804, as the Twe lfth Amen dment. / An eventlul half century now passed before any further changes were made in the law of the Constitution. Vast territories stretching to the Pacific were acquired; nearly a score of states were added to the U^nion; the development of industries and the extension of railways began to work a marvellous transforma- tion in the economic system of the country; state constitutions were remodelled over and over, showing at each successive decade an advance in democratic ideas of government; practices of every kind stretched beyond recognition many of the original terms of the written instrument; and yet no changes could be made in the formal rules of the document itself until, in the hot struggles of the Civil War, the whole political system was thrown into the melting pot. In March, 1862, less than a year after the opening of the * Such an amendment had really been proposed earUer. ^ Annals of Congress, 8th Cong., ist Sess., pp. 490 ff. ' Ibid., 8th Cong., ist Sess., pp. 691 ff. 68 American Government and Politics conflict between the states, Congress abolished slavery in th territories, the following month slaves were emancipated in th' District of Columbia, and in September, 1862, shortly after th check administered to Lee at the battle of Antietam, Lincoli issued his proclamation announcing that the slaves in thosi states which had not returned to their allegiance by January i 1863, would be treated as free. However, the Proclamation of Emancipation, which duly wen into effect, might not of its own force have prevented the res toration of slavery by the Confederate States if they were brough back into the Union; and accordingly, in December, 1863, simul Jtaneous resolutions were introduced into the House and Senate providing for an amendment forever prohibiting slavery. In i speech delivered in the Senate in support of the amendment Mr., Trumbull put the situation concisely: "In my judgment the only effectual way of ridding the country of slavery, and s< that it cannot be resuscitated, is by an amendment of the Consti tution forever prohibiting it within the jurisdiction of the Unitec States. This amendment adopted, not only does slavery cease but it can never be reestabhshed by state authority or in an] other way than by amending the Constitution. Whereas, i slavery should now be aboHshed by act of Congress orprocla mation of the President, assuming that either had the power t( do it, there is nothing in the Constitution to prevent any stat( from reestablishing it. ... It is very generally conceded, ! believe, by men of all political parties, that slavery is gone, tha the value of slavery is destroyed by the rebellion. What objec tion then can there be on the part of any one in the present stat< of public feeling in the country, to giving the people an oppor tunity to pass on the question?" ^ It was apparent, however, to every one that pressure woulc have to be exercised on the conquered southern states in orde] to secure the requisite three-fourths for the adoption of the amend ment. This was a ground for the objections urged by Mr Pendleton in the House of Representatives against the passag( of the resolution. "It is impossible," he declared, "that the amendment proposed should be ratified without a fraudulent use — I select the term advisedly — without a fraudulent us( ^ Congressional Globe, 38th Cong., ist Sess., p. 1313. The Evolution of the Federal Constitution 69 ?;of the power to admit new states or a fraudulent use of the mili- |;tary power of the federal government in the seceded states. There are thirty-five states. Twenty-seven are necessary to ratify this amendment. There are nineteen free states. Sup- pose you get them all, where do you get the others? . . . Will the gentlemen call on the southern states to furnish the requisite number? If these states are to vote in their present condition, it would be a broad farce, if it were not a wicked fraud." ^ Curi- ously enough, it was even urged against the measure that " neither three-fourths of the states, nor all the states save one, can abolish slavery in that dissenting state, because it lies within the domain reserved entirely to each state for itself and upon it the other states cannot enter." So great was the opposition to the resolution that it failed at first to secure the requisite two-thirds in the House of Representa- tives; but Lin coln in his message of December 6, 1864. after his reelection, warned Congress that it was only a question of time until slayery would have to go. Speaking of the election, he said, "It is the voice of the people now for the first time heard upon the question. In a great national crisis like ours, unanim- ity of action among those seeking a common end is very desir- aWe. Yet no approach to such unanimity is attainable unless soAie deference is paid to the will of the majority simply because it^ the will of the majority."^ This appeal was successful, and r a long and exciting debate the amendment was passed at opening of 1865. It was then sent out to the states and fied by twenty-seven of them, among< which were Nevada, ich had been admitted for the purpose, and several southern states, acting under the pressure of the fedemLmilitary author- / ity. The Thirteenth Amendment, thus carried through, wasv^ 4eclaiedJxiiQrce_bjJJ;e_SgctetaTj^^ The radical Republicans, headed by the indomitable Thaddeus Stevens, were not content with abolishing slavery; they were determined also to give to the newly emancipated negroes all the civil rights which the whites enjoyed, to impose disabilities on certain secessionists, and to secure the validity of the federal ' Congressional Globe, p. 2993; see below, chap, x, for Dana's account ot the method employed by Lincoln in securing the adoption of the Thirteenth Amendment. ^ Richardson, Messages and Papers of the President, Vol. VI, p. 252. Jo American Government and Politics war debt. By the Civil Rights Act of April, 1866, they sough to remove all the incidents of slavery and secure for'negroe equality before the law; but reaUzing that a mere act could b repealed at any time by a subsequent Congress, they decided t< place the principles-^- dlvillibeity, high above tl^exeaxJiiiLpart; fact4©fts-by securely establishing them in the Constitution itseli Accordingly in April, 1866, Stevens introduced the propose( '^ Fmirtirrnth \ mrndmonti ' into the House with a lengthy speed in advocacy. He said he could hardly believe that any on would question the justice of the first section prohibiting th states from abridging the privileges and immunities of citizen and depriving them of life, liberty, or property without due pro cess of law; the second section, designed to reduce the numbe of representatives apportioned to any southern state excludiuj negroes from the vote, he regarded as the best means of forcini enfranchisement on the South; and as for the third and fourtl sections, he declared only a "rebel" would object to them^ When it was contended by the opposition that the proposec amendment would sap the foundations of the government destroy the fundamental principles of the federal system, an( consolidate everything into one imperial despotism,^ the ma jority frankly admitted that it was their intention to place certaii great doctrines of private rights under the sure protection o the central government. In June, 1866, they submitted th amendment to the approval of the states. By refusing to admit certain southern states until they had accepted this radi alteration in our political system, the requisite number of ra cations was at length secured; and the Fourteenth Amendm^ was promulgated by the Secretary of State in July, 1868. This indirect method of securing the vote to the negroe through the threat to reduce the representation of any stati excluding them from the suffrage, it was feared, would not bi effective enough in practice; and the Repubhcans accordingly decided to complete the work of reconstruction by expressb forbidding any commonwealth to deprive any citizen of the righ to vote on account of race, color, or previous condition of ser vitude. Some of the northern states still denied the franchise t( ^ See Readings, p. 393, for the Amendment. ^ Congressional Globe, 39th Cong., ist Sess., pp. 2459 fiE. ^ Ihid., p. 2538 tn 1 The Evolution of the Federal Constitution 71 negroes, and this was a standing reproach to the reformers who insisted on granting this right in the South in opposition to the known wishes of the whites. It, therefore, seemed expedient to some, and to others abstractly just, to prevent political dis- crimination against the negro throughout the entire Union; and / to achieve this end, the Fifteenth, and last, Arnendment wa^'vy passed by Congress in February, 1869, and declared ratified on March 30, 1870. Thus was ended the formal revolution wrought in our political system by the Civil War.^ In spite of the fact that no new amendment has been adopted since 1870, every session of Congress has produced a large crop of amendatory proposals, only a few of which are ever seriously considered. For example, in the Sixtieth Congress, there were -^ brought forward in the House of Representatives amendment resolutions relative to prohibition, popular election of Supreme Court justices, uniform laws for marriage and divorce, the ini- tiative and referendum, employers' Uability, and many other matters, but none of them succeeded in securing the requisite number of votesT" More than two-thirds of the states have now joined in proposing an amendment estabHshing popular election • of Senators, but it remains to be seen whether Congress will act on the matter. The only amendment proposal which has received the requi- site two-thirds majority of both Houses, since the adoption of the Fifteenth Amendment, is the following resolution authoriz- ing the levy of an income tax, passed by Congress, in July, 1909, at a special session: "Resolved by the Senate and House of Representatives of the United States in Congress assembled (two thirds of each House con- curring therein), that the following article is proposed as an amend- ment to the Constitution of the United States, which, when ratified by the legislatures of three-fourths of the several states shall be vaHd to all intents and purposes as a part of the Constitution: Article XVI. That Congress shall have power to lay and collect \ taxes on incomes, from whatever source derived, without apportion- ment among the several states, and without regard to any census or enumeration." ^ * For the partisan aspects of this phase of our history, see below, chap. vi. ' This amendment is now before the state legislatures and up until the present time (March, igio) has been ratified by only two states. 72 American Government and Politics Statutory Elaboration of the Constitution It would be a mistake, of course, to confuse the formal amend- ments, which we have just considered, with statutes, especially in the matter of the sanction which each of the two forms of law has behind it. The former are placed beyond the reach of the legislature by an extraordinary process of enactment, and can be abrogated only by a similar process. A statute, on the other hand, is made by Congress, and may be altered or repealed at any time by the same body without further authority. Never- theless, when viewed from the standpoint of content, there is no real intrinsic difference between many statutes and the provi- sions of the Constitution itself; and, if we regard as constitu- tional all that body of law relative to the fundamental organiza- tion of the three branches of the federal government, — legis- lative, executive, and judicial, — then by far the greater portion of our constitutional law is to be found in the statutes. At all events, whoever would trace, even in grand outKnes, the evolution of our constitutional system must take them into account. Such, for instance, are the laws organizing all the executive departments. which have grown out of the authority conferred by the barest mention in the Constitution of the facts that some appointments maybe made by the "heads of departments," and that the President "may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices." To take another example, the Twelfth Amendment is scarcely more important than the statute of 1887, which elaborates it in great detail by providing the modes of counting the electoral votes and determining controversies. Indeed, Senator Garland, at the time, declared such a statute amendatory in its nature and beyond the power of Congress. Whether the statute in question is one which the f ramers of the Constitution would have deemed within the letter of the written document it is obviously impossible to determine; it may quite properly be regarded as an amendment which the general acceptance of the nation allows to stand in force as a mere statute. Such reasoning is not without justification, and finely illustrates the shadowy char- acter of the distinctions between constitutional and statute law. The Evolution of the Federal Constitution ^i^ Again, the federal statute of 1866 ^ regulating the election of Senators by the state legislatures and controlling their internal procedure in this matter may be regarded as constitutional in character in so far as it links itself organically with the provisions of the Constitution. A striking and curious illustration of the way in which the federal system has been in part altered by state action is the practice, adopted in some commonwealths, of requiring the legislature to choose for the United States Senate the nominee indicated by popular vote — a practice undoubtedly contrary to the letter of the Constitution and to the intention of the framers. The Custom of the Constitution It is the fashion for English publicists to congratulate their American colleagues on the simplicity of the task of commenting on a written constitution as compared with the complicated task of unravelling from fluctuating party customs the mysteries of the Efiglish political system. ''Whatever may be the advan- tages of a so-called 'unwritten' constitution," declares Professor Dicey, "its existence imposes special difficulties on teachers bound to expound its provisions. Any one will see that this is so who compares for a moment the position of writers such as Kent and Story, who commented on the Constitution of Amer- ica, with the situation of any person who undertakes to comment on the constitutional law of England. When these distinguished jurists delivered, in the form of lectures, commentaries upon the Constitution of the United States, they knew precisely what was the proper subject of their teaching and what was the proper mode of deaUng with it. The theme of their teaching was a definite assignable part of the law of their country; it was re- corded in a given document to which all the world had access, namely, ' the Constitution of the United States established and ordained by the People of the United States.' " ^ Now, as a matter of simple fact, any one who relied upon the commentaries of these distinguished jurists for a knowledge of the actual government of the United States would not pene- trate beycnd the outer boundaries of the subject. For example, Kent dismisses the topic of the Speaker of the House of Repre- sentatives with this sentence: "The House of Representatives ' See Readings, p. 21. ^ The Law and Custom of the Constitution, chap. i. 74 American Government and Politics choose their own Speaker." This statement throws as much light on our federal government as the observation that the prime minister for the time being is the First Lord of the Treasury throws on the British cabinet system. Surely no commentator on the British constitution would leave out of account the entire cabinet system and its vital relation to party practices. Indeed, the most complete revolution in our political system i has not been brought about by amendments or by statutes, I but by the customs of political parties in operating the ma- ' ^/ chinery of the government.^ So radical is this transformation in the letter and spirit of the system of 1789, and so completely does it extend to the utmost extremities of that system, that ^ it seems necessary to devote special chapters to an examinatior r^t of its diverse aspects.^ A few examples, however, will be giver I here to illustrate concretely the ways in which party practices Y transform the written law. J I. The Constitution tells us that the President is elected by dector^&jcbDsen as the legislatures of the states shall see fit. Ir practice a few candidates are selected at national party con- ventions, — institutions wholly unknown to federal law; the electors are figureheads selected by the parties and bounc to obey party commands; and the voters merely have the righl to choose between the candidates nominated. 2. The Constitution informs us that the Senators are elected by the legislatures of the states. In practice they are choser at legislative caucuses of majority parties, or, in some common- wealths, through a system of direct nomination. ^^-"3. The Constitution states that the Speaker is chosen by the ^ House of Representatives. In fact, he is selected by a caucus of the majority members of the House. 4. In the view of the Constitution the Speaker is the impartial presiding ofl&cer of the House. In fact, he is the leader of the majority party in that body. 5. The Constitution informs us that revenue bills must j originate in the lower House. In plain fact, revenue bills origi- j nate in the Senate quite as much as in the House, although the j latter body nominally exercises its prerogative.^ * On this important subject, see Goodnow, Politics and Administration. * Chaps, vi, vii, and xxx, and Readings, chaps, vi, vii, and xxx. ' See below, "chap, xviii. The Evolution of the Federal Constitution 75 ji 6. The Constitution says very little about legislative pro- licedure, but the whole spirit and operation of Congress depend jmpon the rules, organization of committees, and agreements among the leaders of the majority party. Closely related to the alterations introduced into the original system by party methods are the changes wrought in the presidential office by the exig^engjgs of party leadership. This aspect of our constitutional evolution is regarded by some as an apparently fortuitous contingency dependent upon the personality of the President and the circumstances under which he carries on his administration, but by others it is considered as a permanent and salutary outcome of our political develop- ment. It would be interesting to know, at all events, the feelings that would be entertained by a member of the federal convention of 1787 if he g puld compare the deliberate and austere adminis- tration of Washington with that of Mr. Roosevelt, who was pre- eminently a party leader. Through his personal representative he participated in the gubernatorial campaign in New York in 1906; he aided Congressman Burton in his contest with Mr. Johnson for the mayoralty of Cleveland; he constantly engaged in multifarious party operations; and finally he was chiefly in- strumental in selecting his own successor. Mr. Taft has likewise declared his belief in the duty of the President to act as party leader and assume party responsibilities.^ It requires no far stretch of the imagination to believe that the original framers would regard the recent developments as entirely beyond their intentions. This is not meant to imply any criticism of Mr Roosevelt or his policies, but it shows how the American people are actually not very much hampered by constitutional theories in the presence of the concrete interests and problems of our time. Judicial Expansion of the Constitution While there is a large and eminently respectable school of thinkers who maintain that the courts do not make law, it nevertheless remains a fact that the Supreme Court of the United States has on several occasions expanded the written instrument under the guise of an interpretation. Indisputable evidence of this fact is offered by the reversals of opinion showing that ^ See below, chap. x. 76 American Government and Politics either in one case or the other the Court had read into the docu ment ideas which it did not contain. Furthermore, the numerou! dissenting opinions, often by the considerable minority of fou: to five, lend the weight of eminent authority to the contentioi raised in many quarters that certain decisions are not mer( applications of the letter and spirit of the Constitution to specifi( circumstances, but positive additions to the venerable fabri( which the convention constructed. This, of course, is con troversial ground, but a few illustrations will make clear wha is meant by those who maintain, without any intention of advers( criticism, that the Supreme Court makes constitutional lav from time to time to meet the demands of new circumstances or to express the opinion of the Court as to what ought to b( the law.^ A notable instance is the case of Chisholm v. Georgia, men tioned above, in which the Court took jurisdiction over a suii against a state by a citizen. That it Was not the intention o the states at the time of the ratification to confer such juris diction is evidenced by the general protest which went up againsi it and the facihty with which an amendment was provided Furthermore, Hamilton in The Federalist had expressed hi; belief that no such power was given by the Constitution, and th( general principles of law up to that time seem to have beer contrary to the ruling of the Court; but the Court, desiring t( make the Constitution a broadly national instrument, assumec jurisdiction over the suit against Georgia. A more notable case was that of Marbury v. Madison, in which the Court decidec for the first time that it had power to declare invalid statutes of Congress whic h it deemed contrary to the X onstitution Whether the majority in the convention intended to bestow such high prerogative on the federal tribunal is a matter of con- troversy. Certain it is that some of the members, notabl> Hamilton, ascribed such a power to the Court; but no express warrant was conveyed by the document itself, and there is some reason for holding that such might not have been the general intention of those who ratified the instrument. Later the Court extended the clause forbidding any state to pass a law impairing the obHgation of contract to cover even agreements made by ^ Readings, p. 62. The Evolution of the Federal Constitution 'j^ the states themselves in the form of charters and concessions, a ruling which, however expedient from the standpoint of the protection of private rights, certainly widened the meaning of the term ''contract," as generally understood at the time.^ To cite a more recent example: until the acquisition of our insular dependencies, an achievement as far beyond the range of the vision of the convention of 1787 as any imaginable, the Court had uniformly ruled that the provisions safeguarding individual liberty, laid down in the first ten amendments, restricted the federal authorities everywhere, in the government of territories as well as in the districts organized into states; but when it became apparent that such practices of Anglo-Saxon peoples as indictment and trial by jury were not applicable to peoples in other stages of culture and with diverse historical antecedents, the Court, by' a process more subtle than logical, found a way of freeing the administration of the island dependencies from -4 some limitations that had hitherto applied in the government of territories.^ The pages that follow describing the organization and opera- tion of our system of government, federal and state, are in a large part but a commentary on the ways in which the Constitution — "the solemn determination of the people enacting a fundamental law" — has been transformed in the hands of those who from generation to generation have exercised poHtical power. Over and over the plain record of political practices and official opera- tions will bear eloquent testimony to the truth of the measured summary by Judge Cooley so often quoted: "We may think that we have the Constitution _an before us; but for practical purposes the Constitution is that which the government in its 1 several departments and the people in the performance of their ' duties as citizens, recognize and respect as such; and nothing else is. . . . Cervantes says: 'Every one is the son of his own works.' This is more emphatically true of an instrument of government than it can possibly be of a natural person. What it takes to itself, though at first unwarrantable, helps to make it over into a new instrument of government, and it represents at last the acts done under it." ^ See below, chap. xxii. ^ Readings, p. 375. CHAPTER V THE EVOLUTION OF STATE CONSTITUTIONS The facility with which our political system may be dividec into the state and federal branches naturally leads to the separa- tion of them for the purpose of convenient treatment; but the student should never lose sight of the fact that, after all, oui political system is a unit because the operations of both branches interlock at many points, and the developments of each affect the letter and spirit of the other. The framers of the federal Constitution, for example, did not contemplate the adoption oi general manhood suffrage or the direct election of the President and yet state action and party practice have acconiplished this, It surely was not the intention of the states which ratified the Constitution that the outcome was to be the reduction of each commonwealth to the position of little more than a local govern- ment through the increase of federal power; and yet such has been the case. It was not dreamed that national politics would overshadow state politics; but the growth of huge national party organizations in connection with the operations of the federal government has made the state a tight-working cog in a national mechanism. A complete survey of American con- stitutional evolution must, therefore, take into account the 'ten,dencies in the evolution of state institutions. An examination of the principal features of the early state constitutions reveals certain striking characteristics.^ They show, in the first place, an unlimited faith in the legislature, because they contain practically no limitations on the powers and procedure of that body. At the same time, they reveal a distrust of the executive by providing in many instances that the governor shall be elected by the legislature, and under all circumstances restricted to the exercise of a very limited authority. ^ The constitutions of the American states are to be found in Thorpe, The Federal and State Constitutions, published by the federal government in igog. 78 The Evolution of State Constitutions 79 Following colonial precedents, they impose property qualifica- tions, and in many cases religious tests as well, upon voters and office-holders. They, furthermore, provide that the state ex- ' ecutive ofl&cers, and especially the judges, shall be appointed, not elected in the modern fashion. Finally, the eighteenth- century constitutions are brief and simple in contrast to the bulky and complex documents of our time. The fundamental law of New Jersey adopted in 1776 fills only about five printed pages. The constitution of New York, drafted in 1777, including a re- print of the Declaration of Independence, covers less than sixteen printed pages, while the last constitution of New York, drafted in 1894, spreads over forty-three pages. The Virginia con- stitution of 1776, leaving out of account some passages from the Declaration of Independence, fills only about five and a half printed pages; the last Virginia constitution (1902) is ten times as large. The constitution-makers of Louisiana in 1898 required forty-five thousand words to write the fundamental law of that commonwealth; and the constitution of Oklahoma, admitted to the Union in 1907, would fill about one hundred and fifty printed pages of the style of this volume. The Rise of Political Democracy At the outset of an inquiry into the first state constitutions, one is struck by the fact that the Fathers, notwithstanding the theoretical assertion of equality in the Declaration of Inde- pendence, did not believe that the right to vote and hold ojffice should be freely given to all men regardless of the amount oi\^ property they held or the religious opinions they entertained."'^ In nearly every state, the suffrage was limited, by the constitu- tion or laws, to property-owners, generally freeholders or tax- payers, and in some of them religious tests were imposed in addition. In New York the constitution of 1777, adopted "in the name and by the authority of the good people" of the state, provided that "every male inhabitant of full age, who shall have personally resided within one of the counties of this state for six months immediately preceding the day of election, shall at such election be entitled to vote for representatives of the said county in assembly; if, during the time aforesaid, he shall ^ Readings, p. 72. 8o American Government and Politics have been a freeholder, possessing a freehold of the value oj twenty pounds within the said county or have rented a tenement therein of the yearly value of forty shillings, and been ratec and actually paid taxes to this state." ^ No one could vote foi state senator or governor in New York who did not possess a freehold of the value of £ioo, over and above all debts charged thereon. "The qualifications of electors," runs the South Carolina constitution of 1778, "shall be that every free white man, and no other person, who acknowledges the being of God and believes in a future state of rewards and punishments, and who has attained to the age of one and twenty years and has been a resident and inhabitant in this state for the space of one whole year . . . and hath a freehold of at least fifty acres of land or a town lot, ... or hath paid a tax the preceding year or was taxable the present year ... in a sum equal to the tax on fifty acres of land to the support of this government shall be deemed a person qualified to vote for, and shall be capable of electing, a representative or representatives to serve as a member or members in the senate and house of representatives." - Fearing that the interests of wealthier classes could not be sufficiently safeguarded by the restrictions placed on voters, the original constitution-makers imposed still higher qualifi- cations on representatives and senators. According to the terms of the New Hampshire constitution of 1784, every repre- sentative had to be a Protestant possessed of a freehold worth at least £100; the same religious test was placed on a senator, and the value of his freehold was fixed at £200. Only Protestants ^AU "freemen" of New York City and Albany could vote. See above, p. 8. ^ Property qualifications on voters for members of the lower house of the state legislature under the early state constitutions: New Hampshire (1784), taxpayer; Massachusetts (1780), freehold yielding £3 per annum or person- alty worth ;^6o; New York as in text above; New Jersey (1.776), estate worth ;^5o; Pennsylvania (1776), taxpayer; Maryland (1776), freehold of 50 acres or property worth £30; Virginia (1776), continued the colonial sufifrage; North Carolina (1776), fifty acres freehold to vote for senators, and taxpayer to vote for members of the lower house; South Carolina (1778), fifty acres freehold, town lot, or payment of taxes; Georgia (1798), taxpayer. Dr. Thorpe estimates that there were about one hundred and fifty thousand voters in a population of five millions, whereas under the sufifrage prevailing to-day there would have been not less than seven hundred thousand or more than one million voters. Constitutional History of the American People, Vol. I, p. 97. The Evolution of State Constitutions 8i worth £500 in real and personal property could be assemblymen in New Jersey under the fundamental law of 1776, and whoever aspired to the place of senator had to have £500 more. In Delaware- (1776), representatives had to be freeholders believing, in the Trinity and the inspiration of the Scriptures. All except Protestants possessing two hundred and fifty acres of land or £250 in personal property were excluded from the Georgia legislature under the constitution of 1777; and in Pennsylvania only taxpayers acknowledging the being of God and beheving in a future state of rewards and punishments could enter the legislature. / As the dignity and responsibility of office in the early state governments increased, the property qualifications generally mounted upwards. The office of governor in Massachusetts and North CaroUna was reserved to the possessors of freeholds worth £1000. "No person," says the Maryland Constitution of 1776, "unless above twenty-five years of age, a resident of this state above five years next preceding the election, and having in the state real and personal property above the value of £5000, current money (£1000 whereof, at least, to be freehold estate), shall be eligible as governor. ' ' The law-makers of South Carolina, in 1778, swept away the comparatively slight qualifications im- posed on the governor two years before, and declared that the governor, lieutenant-governor, and members of the privy council must have "a settled plantation or freehold in their and each of their own right of the value of at least ten thousand pounds currency, clear of debt." In Massachusetts and Maryland, the highest executive office was closed to all except Christians, and in New Hampshire, New Jersey, North Carolina, and South Carolina to all except Protestants.^ ' Property qualifications of governors under the early state constitutions: New Hampshire (1784), £500, one-half freehold; Massachusetts (1780), £1000 freehold; New York (1777), freehold; Maryland (1776), ;£sooo, at least £1000 of which is freehold; North Carolina (1776), £1000 freehold; South Carolina (1778), £10,000 freehold; Georgia (1789), 5oo acres freehold, or £1000 other property. Property qualifications of members of state sen- ates under the early constitutions: New Hampshire (1784), £200 freehold; Massachusetts, ;£3oo freehold or £600 personalty; New York (1777), free- holder; New Jersey (1776), £1000; Delaware (1792), 200 acres freehold or £1000 real and personal property; Maryland, £1000 real and personal prop- erty; Virginia (1776), freeholder; North Carolina (1776), 300 acres in fee; 82 American Government and Politics From the opening of the nineteenth century to the Civil W2 there was throughout almost all the states a tendency towj the abolition of these property quahfications and religious tesi for voters and office-holders, although free negroes were no| generally regarded as coming within the new democratic dis-j pensation. This movement toward a direct male suffrage wi the result of three main factors: (i) the growth of the mercantile classes, who were excluded in large numbers wherever the free- J hold qualification was imposed; ^ (2) the migration into the West, where, owing to the fact that every one was fairly well off so farj as the rough necessities of hfe were concerned, radical notions about the equality of all white men, at least, were ardently championed; and (3) the rise of the large urban populations where the agitation of democratic enthusiasts met a quick response. I If we take up the state constitutions at present in force, we find that, with a very few exceptions, all the property quali- fications and religious tests have disappeared, and that the only persons now generally excluded are women, lunatics, paupers, offenders against election laws, and persons convicted of serious crimes.^ Pennsylvania requires her voters to be contributors in some amount to state or county taxes; Louisiana and South Carolina permit persons owning $300 worth of property to vote,, but provide alternatives to this qualification. Voters at elections South Carolina (1778), ;)C2ooo freehold; Georgia (1789), 250 acres freehold or property worth £250. The following were the qualifications of members of the lower branch of the state legislature as prescribed by the early constitutions: New Hampshire (1784), two years' residence, estate of £100, one-half freehold in town of residence, and adherence to Protestant religion; Vermont (1786), two years' residence, belief in one God and the inspiration of the Scriptures, Protestant religion; Massachusetts (1780), one year's residence, freehold of ;^ioo or other estate of ;^2oo, Christian religion; New Jersey, one year's resi- dence, £500 real and personal estate, Protestant religion; Pennsylvania (1776), two years' residence, taxpayer, Protestant; Delaware (1776), freeholder and believer in the Trinity and inspiration of the Scriptures; Maryland (1776), one year's residence, £500 real and personal property, Christian re- ligion; Virginia (1776), freeholders; North Carolina (1776), one year's residence, 100 acres for life or in fee, Protestant; South Carolina (1790), three years' residence, free white, owning freehold of 500 acres and ten negroes or real estate of £150 value clear of debt; Georgia (1777), one year's resi- dence, owner of 250 acres of land or £250 in property, Protestant. (Based on Thorpe's valuable tables. Constitutional History of the American People, Vol. I, pp. 68 flf.) ^ Readings, p. 78. ^ See below, chap. xxii. I The Evolution of State Constitutions 83 for city councillors in Rhode Island are required to be taxpayers on property worth $134; and in a few states the suffrage, in local matters, especially involving expenses for improvements, is restricted to property-owners. Property qualifications for ofiice-holders have also practically disappeared; but some remnants of religious restrictions are to be found in the constitutions of at least eight states — Arkansas, Mississippi, Maryland, North Carolina, South Carolina, Texas, Pennsylvania, and Tennessee — all of which require beUef in God as a qualification for office. The two states named last, Pennsylvania and Tennessee, require belief not only in God, but also in a future state of rewards and punishments. Never- theless, broadly speaking, we may say that a century's political development has opened the electorate and public ofiices to all adult white males (and in four states to women), regardless of their wealth or religious views. Its widening effect is revealed in the fact that, whereas about four per cent of the population possessed the right to vote just after the revolutionary period, about twenty per cent are now given the ballot. The story of the process by which this more democratic politi- cal system has been secured is a long and complicated one, and it cannot be told here.^ It has not been the result of any spontaneous and general action, but rather of many halting measures, tentative experiments, and minor modifications. Con- trary to popular impressions, Americans were not all convinced by the early arguments in favor of universal manhood suffrage; even Lincoln, in 1836, would go no further than to admit "all whites to the right of suffrage who pay taxes or bear burdens (by no means excluding females)." The only measures relating to suffrage which are applicable to the whole, country are the Fourteenth and Fifteenth amendments to the federal Constitu- 1 " Eleven of the thirteen original states have abolished the tax and prop-'\ erty tests, as follows: New Hampshire, the tax test in 1792; Georgia, the, property test in 1789; Maryland, the property test in 1801 and 1809;' Massachusetts, the property test in 1821; New York, the property test in 1821 and the tax test in 1826; Delaware, the property test in 1831; New Jersey, the property test in 1844; Connecticut, the property test in 1845; South Carolina, the property test in 1865; North Carolina, the property test in 1854 and 1868; Virginia, the property test in 1850 and the tax test estab- lished in 1864, in 1882." Lalor, Cydopcedia of Political Science, Vol. Ill, pp. 825-826. Details cannot be given here. Consult Thorpe, op. cit. 84 American Government and Politics lion. The latter amendment forbids states to deprive citizens of the vote on account of race, color, or previous condition of servitude. The former stipulates that whenever a state, for gene- ral purposes, denies the suffrage ^ to adult male citizens, its rep- resentation in the House of Representatives shall be reduced proportionately; but as this provision remains unenforced, its practical effect has not been to secure the results contemplated.^ In the original states, the property and religious qualifications have been removed by many separate measures. The process may be illustrated by some passages in the constitutional history of New York. The first constitution of that state, as we have seen, provided a property qualification for all voters (excepting the freemen of New York City and Albany), and for the governor and members of the legislature. The constitution of 1821 still required the senators and governor to be freeholders, but widened the suffrage by the following provision: "Every male citizen of the age of twenty-one years, who shall have been an inhabi- tant of this state one year preceding any election, and for the last six months a resident of the town or county where he may offer to vote; and shall have, within the year next preceding the election, paid a tax to the state or county, assessed upon his real or personal property; or shall by law be exempted from taxation; or being armed and equipped according to law, shall have per- formed within that year military duty in the militia of this state; or who shall be exempted from performing militia duty in consequence of being a fireman in any city, town, or village in this state; and also, every male citizen of the age of twenty-one years, who shall have been, for three years next preceding such election, an inhabitant of this state; and for the last year a resident in the town or county where he may offer his vote; and shall have been, within the last year, assessed to labor upon the public highways, and shall have performed the labor, or paid an equivalent therefor, according to law, shall be entitled to vote in the town or ward where he actually resides, and not else- where, for all officers that now are, or hereafter may be, elec- tive by the people; but no man of color, unless he shall have been for three years a citizen of this state, and for one year * Except for participation in rebellion or other crime. ^ See below, chap. xxii. The Evolution of State Constitutions 85 next preceding any election, shall be seized and possessed of a freehold estate of the value of two hundred and fifty dollars, over and above all debts and incumbrances charged thereon, and shall have been actually rated, and paid a tax thereon, shall be entitled to vote at any such election. And no person of color shall be subject to direct taxation unless he shall be seized and possessed of such real estate as aforesaid." Finally in an amendment adopted in 1826 popular suffrage was established by the provision that "every male citizen of the age of twenty-one years, who shall have been an inhabitant of this state one year, next preceding any election, and for the last six months a resident of the county where he may offer his vote, shall be entitled to vote ... for all officers that now are or hereafter may be elective by the people." The special property qualifications imposed on "persons of color " by the constitution of 1 82 1 were continued and were retained until after the Civil War.^ By an amendment in 1845 i^ was added that "no prop- erty qualification shall be required to render a person eligible to, or capable of holding any public office or public trust in this state." Even many of the western states began their history with a restricted suffrage. Ohio came into the Union in 1802, with a constitution limiting the suffrage to "all white males above the age of twenty-one years, having resided in the state one year next preceding the election, and who have paid or are charged with, a state or county tax." Senators and representatives likewise had to be state or county taxpayers. It was expressly declared, however, that "no religious test shall be required as a qualification to any office of trust or profit." These property qualifications were abolished by the new constitution of 1851; but negro suffrage was not granted until after the adoption of the Fourteenth Amendment. Illinois, admitted in 1818, imposed no religious tests, and admitted free white males to the ballot, but required her representatives and senators to be taxpayers, a restriction which was swept away in 1870.^ Michigan came into the Union in 1835, without any religious or property quaHfi- cations for electors or officers. This example was soon followed by ' Removed by an amendment ratified in 1874. ^ Indiana, admitted in 181 6, had similar qualifications. 86 American Government and Politics the other states; and, by the end of the first half of the nineteenth century, the United States was practically committed to the great experiment of white male suffrage. The Civil War and emancipation brought forward new aspects to an old problem of American politics — the question of the negro. At the beginning of the Republic the number of free negroes was so small that the problem did not attract serious attention, and some of the northern states did not exclude them from the suffrage. Soon, however, there appeared a decided feeling against granting them the ballot. Some of the states withdrew the privilege they had bestowed; and the newer west- ern commonwealths quite uniformly decided in favor of restrict- ing the franchise to white men. Even Iowa, in her constitution, adopted on the eve of the Civil War which ended in enfranchis- ing all negroes — at least temporarily — took the conservative attitude on the question, after a heated controversy. Then came the great conflict, at the close of which the tri- umphant Republicans by military force compelled the accept- ance of the Fourteenth and Fifteenth amendments, designed to sweep away all property qualifications and race distinctions.^ For a while, at the close of the war, the South was in the grip of the Republican administration, and negro suffrage was tried with results which, to a large degree, would have been ludicrous if they had not been pitiable. As soon as the hold of the northern military authorities was loosened, the southern whites deter- mined to deprive the negroes of the rights which had been newly forced upon them; and by a number of ingenious devices, hardly escaping the letter, and certainly not the spirit, of the federal Constitution, they have succeeded in disfranchising perhaps nine- tenths or more of the colored voters. Among these de- vices are provisions requiring electors to read and write, imposing property qualifications, and admitting those who voted, or whose fathers or grandfathers were entitled to vote, in 1867.^ Decline in Representative Assemblies J With the growth of confidence in the capacity of the broad mass of the people to govern themselves through the exercise ^ See below, chap, xxii; and Readings, pp. 393, 394. ^Readings, p. 401. The Evolution of State Constitutions 87 of the franchise, there came a remarkable decline of confidence in representative assemblies. ^ Wherever there is such tremendous power, vigilant self-seekers oi every kind are sure to congregate, and during the years which followed the war, the ranks of * the RepubHcan party were per- meated with mercenaries of every type — the spoilsmen hunt- ing offices, railway promoters seeking land grants and financial aid from the government, manufacturers demanding more dis- crimination in the tariff legislation, and the great army of hangers- on who attached themselves to these leaders. The integrity of the party was further injured by the "carpet-baggers" in the South, who, in the name of the federal government and the Re- publican party, plundered the southern states and heaped upon them an enormous burden of debt. Thus, those who plundered under the guise of patriotism helped to discredit sadly the great party which made the proud boast that it had preserved the Union and abolished slavery. Under these circumstances the Democratic party began to be rehabili- tated. It had had a long and triumphant history prior to the ^ The reconstruction of the Republican party during the Civil War is the subject of a very convincing paper read by Professor Dunning before the American Historical Association in 1909, as yet unpublished. I am indebted to Professor Dunning for the privilege of reading it in manuscript. ' See the patriotic appeal in the Republican platform of 1876, Readings, p. lOI. ^ For a first-hand study of the economic aspects of the period, see Dunning, Reconstruction, Political and Economic (American Nation Series). ii8 American Government and Politics Civil War; it had great traditions, and numbered on its roll some of the most distinguished men in the American history; and, furthermore, it must be remembered that in the election of i860, when it went down in defeat, it had the support, if we combine both factions, of an overwhelming majority of the people of the United States. It is not surprising, therefore, that this party began to close up its shattered ranks in opposition to Republican rule. In the South the whites began to recover their old pre- dominance; in the North and West the farmers began to protest against the high protective tariffs; here and there throughout the Union discontent with the railway and corporation policy of the Republican party began to appear; and the spoils system stirred to action a small but vigorous minority of "civil service reformers."^ As a result, the Democratic party, in 1884, was able to bring together an effective opposition and Mr. Cleveland was narrowly elected, principally by the support of the "mugwumps," who bolted the RepubUcans after the flomination of Mr. Blaine at the Chicago convention. This Democratic triumph was short-lived, however, for four years later, when Mr. Cleveland forced the tariff issue by his celebrated message of 1887, the Republicans were able to elect Benjamin Harrison by a slight majority. Tak- ing advantage of their victory, the Republicans forced through the McKinley tariff bill, which was regarded by many members of the party as entirely too drastic, and in the succeeding election of 1892 Mr. Cleveland was again able to lead his party to victory. The Economic Revolution since the Civil War At this time, however, American politics may be said to have entered upon a new phase. Since the Civil War there has been an economic transformation more revolutionary in character than that which formed the basis of the political upheaval of Andrew Jackson's time. Small business concerns have grown to gigantic corporations capitalized at untold millions and controlling na- tion-wide industries. There have been built up colossal fortunes from which the total national debt of Washington's day could be paid many times over. The western lands, once the hope of the poor man of the East, have been practically all taken up. The ^ For the spirit of the Democratic opposition, see Readings, p. 103. Political Issues in the United States 119 vast timber and mineral resources of the nation have passed largely. into private hands. Cities have grown by leaps and bounds, and miUions of poor are crowded in our industrial centres. The village workshop, the old-fashioned woollen mill by the brookside, the handloom, the short railway Hne, the small in- dividuahst factory, have been conquered by mighty captains of industry, whose bold enterprises and remarkable genius for world- wide organizations are the wonder of our age. With this indus- trial revolution has come a working-class. It may be demon- strable that there are many gradations of fortune in modern life and that members of the working-class are constantly passing to other ranks, but this should not be allowed to obscure the fact that a permanent working-class, dependent almost entirely upon the sale of labor power, is the inevitable concomitant of the in- dustrial revolution. In connection with our commercial enter- prises the insular dependencies have been acquired, and the fed- eral government drawn into the mesh of world politics. Surely the United States of our time is further away from Lincoln's day than his America was from the America of Washington. The Minor Parties The new conditions of American life have created new groups of interests, and have, therefore, forced steadily to the front new types of political doctrines. These groups of doctrines, so far as they propose radical changes, usually find their first exponents in minor parties; and as the respective issues come within the range of practical politics, they are presented to the country in the na- tional campaigns of the two great parties. Accordingly it seems worth while to review briefly the minor parties since the Civil War, for, in spite of their apparent insignificance, they are by no means negligible factors in the American governing process. These parties fall readily into three groups: the temperance, the labor, and the agrarian parties. I. About the middle of the nineteenth century there arose a temperance movement which carried several states for absolute prohibition. A reaction, however, speedily set in, and the tem- perance question was overshadowed by the great slavery issue. It was not until after the Civil War that the Prohibitionists en- tered national politics. They held their first national conven- 120 American Government and Politics tion at Columbus, Ohio, on February 22, 1872, and nominated Mr. Black of Pennsylvania as their presidential candidate. In their platform they declared that the prohibition of the liquor traffic was the leading issue, but they also proposed certain cur- rency reforms and the regulation of transportation and monop- olies.^ Indeed, from the very inception of the party, the Pro- hibitionists have been unable to ignore the other questions of the day; andirom time to time they have declared in favor of various economic reforms as well as the prohibition of the Hquor traffic. Nevertheless, they have been imable to muster any considerable strength, for they polled only about 254,000 votes in 1908. 2. Almost immediately after the Civil War labor entered American politics as a separate and independent element. In 1872 a party known as the "Labor Reformers" held a national convention in Columbus, Ohio, which was attended by represen- tatives from seventeen different states. The party at that con- vention declared in favor of restricting the sale of public lands to bona fide homeseekers, Chinese exclusion, an eight-hour day in government employments, civil service reform, one term for each President, regulation of railway and telegraph rates, and the subjection of the military to civil authority.^ For a time, the labor element seems to have been absorbed into the agrarian groups described below; but in 1888 a ''Union Labor" party met in national convention at Cincinnati, and drafted a plat- form embodying the principal doctrines of the Labor Reformers and demanding, in addition, popular election of United States Senators.^ The labor forces appeared in an avowed socialist organization in the campaign of 1892, when the "Socialist Labor" party held its first convention in New York. This party has made its appeal almost exclusively to the working-class. It declared in its plat- form of 1908 that "man cannot exercise his right of life, liberty, and the pursuit of happiness without the ownership of the land and the tools with which to work. Deprived of these, his life, liberty, and fate fall into the hands of the class that owns these essentials for work and production." The radical appeal of ^ Their candidate in that year polled 5608 votes, 2 The candidate of the Labor Reformers in that year polled about 29,000 out of over 6,000,000 votes. 3 The candidate of the Union Labor Party in 1888 polled 146,935 votes. Political Issues in the United States 121 the Socialist Laborites to the working-class to unite against the property-owning class has met, however, with no considerable response; its candidate in 1896 polled only 36,373 votes, and in 1908 the number fell to about 15,000. The extreme views of the -Socialist Labor party led to the organization of another radical group taking the name of "So- cialist " party, which held its first convention in 1900; and in the last presidential campaign polled 448,453 votes — more than the combined vote of the other minor parties. This party also makes its appeal especially to the working-class, but it is not so revolu- tionary in tone as the older socialist group, and it does not de- mand the complete abolition of all private property in the means of production.^ In its platform of 1908 it declared in favor of graduated inheritance and income taxes; universal suffrage; the initiative and referendum; proportional representation and the right of recall; new federal departments of health, education, and labor; popular election of judges; employment of unem- ployed working men on large government undertakings; collec- tive ownership of all industries in which competition has ceased to exist; extension of the public domain to include mineral resources, forests, and water power; compulsory government insurance for the working-class; and an extended labor code designed to raise the standard of Hfe for the working people in every branch of industry. 3. There has been in American poHtics since the period of the Revolution a distinctly agrarian element, but it did not appear as a separate poHtical party until after the Civil War. With the rapid decline in the prices of agricultural products which accom- panied the general collapse of the inflated war prices, the farmers began to grow dissatisfied with their lot, and at length they came to beheve that the railways, the corporations, and the financial policy of the federal government were principally re- sponsible for the evils under which they labored. Working through the legislatures, especially in Illinois, Iowa, Wisconsin, and other western states, they attempted to secure relief by pass- ing a number of laws regulating railway rates and the conditions of warehousing and transporting grain. ^ It declared in its platform of 1908 "that occupancy and use of land be the sole title to possession." 122 American Government and Politics The discontented farmers entered politics in 1876 as the Inde- pendent National or "Greenback"^ party, and waged warfare especially on the Repubhcans, charging them with being re- sponsible for the decUne in prices because they had placed the monetary system on a gold basis and contracted the currency. In spite of the small vote polled by their candidate, Peter Cooper, of New York, the Greenbackers put forward a candidate in the next campaign, and even made a third attempt in 1884. In view of later developments, their platform of 1880 is interesting, for it included, among other things, free coinage of silver, advanced labor legislation, the establishment of a national bureau of labor, Chinese exclusion, a graduated income tax, and the regulation of interstate commerce. Although it gained in votes at first, — from 81,737 in 1876 to 308,578 in 1880, — the Greenback party went to pieces com- pletely after the campaign of 1884. Within a short time, however, the discontented agrarians formed a new association, known as the Farmers' AlHance, whidi, although it did not ofii- cially enter politics, was the precursor of the PopuHst party. This party drew together, in 1892, both agrarian and labor ele- ments in a national convention, which met at Omaha and put forth a radical program, demanding government ownership of railways, telegraph and telephones, a graduated income tax, postal savings banks, and the free coinage of silver and gold at the legal ratio of 16 to i. On this radical platform the Populists went into the cam- paign of 1892, with James B. Weaver as presidential candidate, and polled more than a million votes, principally in the western and southern states, carrying Colorado, Idaho, Kansas, Nevada, and securing one electoral vote in North Dakota and another in Oregon. This unprecedented achievement by a minority party was partially due to fusion with the Democrats in some of the states, but beyond question the Populists had attained a numer- ical strength which made them a force to be reckoned with in American politics.^ ^ So-called on account of its advocacy of paper money. 2 The Populist party, after its capture of the Democratic party in 1896, continued to maintain a separate organization, but it has steadily declined, its candidate in 1908 polling only about 30,000 votes. Political Issues in the United States 123 The New Era in American Politics This became apparent in the great free silver contest of 1896, when the Democratic party was captured by the Populist wing, and waged a campaign on a platform based largely upon Populist principles. In that year the sectional issues of the Civil War were cast aside, and the new issues arising out of the industrial revolution, the growth of trusts, and the development of organ- ized labor were forced to the front. The particular plan of reform — the free coinage of silver — with which Mr. Bryan waged his memorable campaign was permanently rejected, but the spirit wliich he aroused affected all other parties, for he announced in no uncertain tones that an economic revolution had taken place since the Civil War, and he voiced the slowly awakening con- sciousness of the broad mass of the people to the fact that the great corporate and financial interests would have to be checked and controlled in some way.^ Mr. Bryan was not destined to carry into effect the policies which he advocated with such eloquence and zeal, and it would be misreading the history of our time to attribute the political revo- lution of the last decade to his personal influence. The times have changed and new issues have come with them. This is evident in the platforms put forth by the two great parties in 1908, and in the policies advocated by presidential candidates during the campaign.^ The Democratic and Repubhcan platforms, in that year, were in accord on a number of points, such as the admission of Arizona and New Mexico as separate states, liberal pensions, the encour- agement of the national marine (for which purpose, however, the Democrats would not impose "new or additional burdens on the people" or give "government bounties"), the creation of national public-health agencies, the conservation of natural resources and the establishment of postal savings banks (which the Demo- crats favored if a guarantee of bank-deposits could not be se- cured). Both parties agreed that the tariff should receive an early revision, but the Democrats were more specific, favoring * For Mr. Bryan's appeal in his famous "crown of thorns" speech, see Readings, p. 105. ^ For the Republican platform of 1908, see Readings, p. 107. 124 American Government and Politics the removal of duties on trust-controlled products and the resto- ration of the tariff to a revenue basis. On the subject of railway regulation, the Republicans advo- cated such an amendment of the law as would give the railroads the right to make and publish trafl&c agreements subject to the approval of the Interstate Commerce Commission, provided the principle of competition was maintained, and they called for national legislation to prevent stock-watering. The Democratic platform was more explicit, demanding that a physical valuation of railway property be made, that railways should be prevented from entering into competition with their shippers, and that the Interstate Commerce Commission should be empowered to take the initiative in rate regulation, to inspect proposed schedules, and to readjust unreasonable rates. The anti-trust plank of the Republican party proposed to give the federal government more extensive supervision and control over interstate corporations having the power and opportunity to establish monopolies; the Democratic platform demanded the destruction of all private monopoly, and recommended, as specific measures, laws preventing duplication of directors among com- peting corporations, establishing a federal license system and compelling licensed companies to sell their commodities at the same price throughout the country, subject to variations owing to cost of transportation. On the vexed question of injunctions, the Democrats reiterated their pledges of 1896 and 1904, providing for jury trial in cases of indirect contempt; and stated that "injunctions should not be issued in any cases in which injunctions would not issue if no labor dispute were involved." The Republicans, while insisting on preserving the integrity of the judiciary, declared that "the rules of procedure in the federal courts with respect to the issue of the writ of injunction should be more accurately defined by statute, and that no injunction or temporary restraining order should be issued without notice, except where irreparable injury would result from delay, in which case a speedy hearing there- after should be granted." The Democrats condemned imperialism as a blunder, and favored an immediate declaration of the nation's purpose to give the Philippines independence as soon as stable government could be established, subject to arrangements similar to those with Political Issues in the United States 125 Cuba. According to the Republicans, the policies of McKinley and Roosevelt were leading the inhabitants of the islands, step by step, to an ever-increasing measure of home rule. As to labor questions, the RepubUcans pointed to their record ; and the Democrats promised to create a department of labor and to free unions from the restrictions on combinations in restraint of trade. The Democratic platform in addition called for the popular election of Senators, an income tax, regulation of telegraphs and telephone rates for interstate business, publicity of campaign funds, and legislation creating a national bank guarantee fund, securing depositors in national banks. In his acceptance speech, Mr. Taft approved the physical valuation of railways, seemed to favor the exemption of trade imions from the anti-trust law, endorsed the popular election of Senators, and stated that in his opinion an income tax could be passed which would not conflict with the Constitution as inter- preted by the Supreme Court. ^ ^ A new party bearing the name of the Independence party, formed under the auspices of Mr. Hearst in New York, favored anti-injunction legislation, the exemption of labor unions from the operation of anti-trust laws, govern- ment ownership of public utilities, and otJier radical innovations. CHAPTER VII THE DEVELOPMENT OF PARTY MACHINERY The process by which pohtical parties have built up their organizations from the primary to the national committee and extended their sway throughout the United States and its depen- dencies forms one of the most interesting studies in all the history of political institutions. Originating in a variety of voluntary practices, party machinery became more definite and more com- »|plete from generation to generation, until at length it became a I veritable government without and within the legal government f — with its own army of officials, its congresses or conventions, its rules and customs, and its methods for maintaining discipline in the ranks. Its enormous power was early recognized;' but for a long time it was regarded as a purely private association in spite of its eminently public character; and accordingly it escaped all governmental control. It was not until the abuses of the parties became so notorious as to threaten the integrity of the commonwealth, that the policy of regulating them by statute was adopted. This poHcy, once accepted, has been steadily advanced, however, until in many states the political party has been frankly recognized by law and openly made a piece of the regular mechanism of government.^ Party machinery is not a fortuitous development, but is the direct result of the requirements of practical politics. The necessity of nominating candidates for offices leads inevitably to the development of caucuses and conventions. In the con- duct of campaigns, leadership and discipline are indispensable, and hence we have concentration of power in the hands of party directors, and the organization of an army of party workers. When a party is in power, it fills offices, makes and enforces laws, grants franchises, and in a multitude of ways regulates private interests; and out of these functions come emoluments, cam- ^ See Readings, p. 131. 126 The Development of Party Machinery 127 paign funds, and enormous power over the lives of men. It is small wonder, therefore, where there are so many offices to be filled and so many advantages to be derived that our political parties have reached a high degree of organization and control. Early Nominating Methods The beginnings of this great system may be traced back into the colonial period, for it appears that even the Boston town meeting, so celebrated for its democratic character, had fallen into the hands of the caucus long before the Declaration of Indepen- dence.^ After the organization of the independent governments, there was naturally an increase in the number of elective offices,^ and, while in many instances candidates were brought before the public through personal negotiations or by the advocacy of a few friends, it was not long before more or less regular assem- blies for the purpose of making nominations appeared everywhere throughout the states. For local and county nominations a general mass meeting composed of interested parties seems to have been the early method employed, but the controversies which arose in these assemblies led to a demand for regularity in ■ composition, so that nominating conventions of official delegates soon began to appear alongside the mass meetings. For example, candidates for Congress and the state legislature in the county of Philadelphia were nominated in 1794 "at a large and respectablemeetingof thejree^^ but five years later, in 1799, we hear oi a county convention in that city made up of three delegates from each ward. By the close of the eighteenth century, county conventions, composed of delegates represent- ing lower units of government, seem to have been fairly well developed in Pennsylvania.^ About the same time congressional and county conventions seem to have been regularly established in Massachusetts and in all other states where party contests had reached any degree of sharpness. Thestateconvention as a regular institution was a develop- ment of a later period. It is true that we hear of a state con- ' For John Adams' interesting account of the Boston caucus, see Readings, p. 12, note I. ^ See above, p. 89. ' Dallinger, Nominations for Elective Offices in the United States, pp. 21-23. 128 American Government and Politics vention in Pennsylvania as early as 1788, but it seems to have •disappeared before a device known as the legislative caucus. Owing to the difficulties of communication and the small number of elective state offices, the expedient of nominating state tickets by the convention method did not appear attractive to the politicians. For a time, therefore, nominations were made in a variety of fashions. For example. Judge Yates was nominated by the FederaUsts as a candidate for governor of New York, in 1789, by "a, party meeting" held in New York City, at which Alexander Hamilton and several other persons were appointed a committee of correspondence to promote the election of their nominee. In 1792, George Clinton was nominated governor of that state at a Republican meeting held in New York City, said to have been composed of "gentlemen from various parts of the state." "X The Legislative Caucus It was not long, however, before the power of making state nominations was assumed by the members of each party in the state legislature, who organized themselves into an assembly known as the leg islative caucus.^ It was the practice for this t caucus to meet officially, usually in the capitol building, select the candidates, and issue a signed proclamation or appeal for support. In conducting the campaign, the legislative caucus organized correspondence committees throughout the state. Although this newer device was more representative than the older irregular mass meetings which it supplanted, it was, of course, not so completely representative as the later state con- vention. For instance, if a county had no Federalist member in the state legislature, it would have no weight in the selection of the state candidates, although it might contain"^ a number of Federalist voters. The injustice of this arrangement was recog- nized in New York as early as 181 7, when the Democratic legis- lative caucus was reenforced by representatives of the Demo- cratic voters from those counties which had Federalist members in the state assembly.^ In 1800 the legislative caucus was transferred to Congress as a mode of making nominations for President and Vice-President. ^ For a description of a legislative caucus, see Readings, p. 112. ^ Ibid., p. 112. The Development of Party Machinery 129 It appears that early in the year 1800 a few Federalist members of Congress met in the Senate chamber for the purpose of coming to sotaie decision with regard to the pending presidential election. Owing to the secrecy which shrouded this meeting, there is con- siderable uncertainty as to its real, purpose. It is contended by some that Mr. Hamilton desired to use it to thwart Mr. Adams; and by others, that it was convened with a view to lending sup- port to the candidacy of Mr. Adams, At all events it was roundly denounced by the Republicans as an attempt to coerce the voters; but it proved such an admirable device that the Republicans held one of their own for the purpose of selecting a nominee for Vice- President, the candidacy of Jefferson for the presidency being con- ceded. From this time forward the congressional caucus was regularly used in making presidential nominations until it was overthrown by the adoption of the convention system. It was soon recognized that the method of nomination by the congressional caucus had made a revolution in the system set up by the f ramers of the federal Constitution, according to which the presidential electors were supposed to be free to vote as they pleased. Clearly the real power of selecting the President had passed from the hands of the electors to an extra -legal bodv . "The members of the two Houses of Congress," said Mr. Gaston, in a speech delivered in the House of Representatives in 18 14, "meet in caucus or a convention and there ballot for a President or Vice-President of the United States. The result of their election is published, through the Union in the name of a recom- mendation. This modest recommendation then comes before the members of the respective state legislatures. Where the appointment ultimately rests with them, no trouble whatever is given to the people. . . . Where in form, however, the choice of electors remains with the people, the patriotic members of the state legislatures, vieing with their patriotic predecessors, back this draft on popular credulity with the weight of their endorse- ment. Not content with this they . . . make out a ticket of electors and thus designate the individuals who in their behalf are to honor this demand of their suffrages. This whole proceed- ing appears to be monstrous; it must be corrected or the char- acter of this government is fundamentally changed. Already, in fact, the chief magistrate of the United States owes his office principally to aristocratic intrigue, cabal, and management." K 130 American Government and Politics It was not, however, by constitutional amendment, as many members of Congress proposed, that the caucus method of mak- ing nominations was to be destroyed; it met its doom at the hands of the national convention organized by a popular uprising against the domination of the poUtical leaders in Congress. The Rise of the Nominating Convention This uprising came with the democratic movement that carried Jackson into the presidential office.^ The last congressional caucus was held in 1824, when a few friends of William H. Craw- ford gathered in the chamber of the House of Representatives and selected him as their candidate for the presidency.^ The subsequent election showed that Jackson was by far the most popular candidate, although his support in Congress was almost negligible. Jackson's friends, therefore, turned fiercely upon the caucus. The legislature of Jackson's state, Tennessee, had already sharply denounced it,^ and several other states followed this example. In the presidential election of 1828, no attempt was made to hold a congressional caucus. Jackson was nomi- nated by "spontaneous" legislative caucuses and conventions held by his followers in the various states, and thus, to use a phrase then current, "King Caucus met his death." j About the same time, the legislative caucus was being aban- ■doned as a machine for nominating state candidates. It appears that the state convention was revived in Pennsylvania as early as 181 2, but it was not until 1823 that the last vestige of the older caucus system was swept away by the definite establish- ment of the convention composed of delegates supposed to have been regularly chosen.^ In Rhode Island the mixed legislative caucus disappeared by 1825, and regular conventions, composed of delegates from all the towns in the state, were fully established in popular favor.^ In New York, the nomination of Mr. Craw- ford for President by the congressional caucus at Washington ^ See above, p. 108. ^ For the minutes of this caucus, see Readings, p. 114. ^ See Readings, p. 117, for this denunciation. * J. S. Walton, "Nominating Conventions in Pennsylvania," American Historical Review, Vol. II, pp. 262-278. ^ Proceedings of the Rhode Islatid Historical Society, Vol. I, pp. 258-269. The Development of Party Machinery 131 resulted in the call of a Jackson conference which resolved that a state convention, composed of the same number of delegates as the lower house of the state legislature, should be chosen by the voters opposed to Mr. Crawford and in favor of "restoring to the people" the choice of presidential electors. This convention assembled at Utica in August, 182 4, and thus began the regular convention system in ^e state ot New York. In general, the legislative caucus had been most violently opposed by the dis- gruntled politicians, who had failed to carry their plans in it, and they eagerly welcomed the convention system as a method of ousting the older machine. The state convention, composed of delegates selected by party I voters, afforded a splendid model for a national convention; and| in 1 83 1 this piece of state pohtical machinery was brought into use for national purposes. About this time, there had sprung up a violent opposition to secret societies, especially to the Masonic fraternity, on account of the mysterious disappearance of a man who had proposed to reveal Masonic secrets. It was contended that Free-Masonry was a political danger; and at a preliminary assembly of Anti-Masonic delegates at Philadelphia in 1830, a call was issued to all opponents of secret societies to send delegates to a convention for the purpose of selecting candidates for Presi- dent and Vice-President. The following year the first national! convention, composed of 114 Anti-Masonic delegates, assembled! at Baltimore, and nominated a ticket which was sadly defeated in the ensuing election. Although the Anti-Masonic party speedily disappeared, it initiated a rev6lution in our national poUtical machinery. The example thus set by the Anti-Masons was followed in December of the same year by the assemblage of a convention, representing the National Republican or Whig party, at the city of Baltimore. There were present 156 delegates, represent- ing eighteen states and the District of Columbia. Clay was nominated as the candidate of the party for President; a dele- gation was sent to Washington to notify him, and received his acceptance; and an appeal to the voters, called "the first plat-*^ form ever adopted by a national convention," was drawn up. Furthermore, a campaign committee, composed of one member from each state selected by the delegations at the convention, was instituted. Although the nomination of Andrew Jackson 132 American Government and Politics by the Democrats to succeed himself was a foregone conclusion, a Democratic national convention was called for the purpose of putting forward Jackson's friend, Van Buren, for the office of Vice-President. It seems that Mr. Lewis, an astute wire- puller, conceived this device as a means of excluding rivals from the field; and it appears that Amos Kendall, a member of Jackson's kitchen cabinet, persuaded a Democratic member of the New Hampshire legislature to use his local legislative caucus in calling a national convention.^ This assembly met at Balti- more in the spring of 1832, and, as Jackson had shrewdly planned, nominated Van Buren for the office of Vice-President. As the scheme worked so excellently in this instance, Jackson determined to use it to secure the presidency for Van Buren in 1837. Accordingly he wrote to a friend suggesting a national party assembly "fresh from the people" for the purpose of nominating candidates. The convention met in Baltimore in the spring of 1835, and, according to the well-laid plan, nominated Van Buren. Preparatory to the election of 1840, the Whigs and the Democrats held general party assemblies to choose their candidates; and since that time all parties have uniformly employed the national convention in selecting nominees for President and Vice-President. It was many years, however, before each party was so com- pletely organized down to the election district or precinct as to secure regularity in the choice of delegates. In the earHer period it seems that delegates to the national convention were sometimes chosen by state conventions, sometimes by legislative caucuses, and sometimes by local meetings. Even as late as 1864 some of the delegates to the Republican (or Union) national convention were selected by legislative caucuses. Owing to this irregularity in choice, there were always many contesting delegates, and, as there was no possibiUty of appljdng definite rules, it seems that the majority of the convention usually decided contests by admitting their own supporters. Occasionally, how- ever, it was found expedient to placate both factions, and conse- quently the two contending delegations would be admitted, each member being given one-half a vote. Once estabHshed, the national convention and its accompany- ' For the opening address at this convention, see Readings, p. 119. The Development of Party Machinery 133 ing political devices began to force, steadily and persistently, the completion of the party system down to the lowest unit of local government in every state and territory. The RepubHcan call for the national convention after the year 1884 provided that the delegates at large should be chosen by state conventions, and that the other delegates should be selected by congressional conventions. The necessity of deciding between contesting delegations forced the national com'mittee and the convention to look into the rules and regulations governing the selection of delegates, and as a result, from year to year, the rules of state\ party organizations controlling primaries and local party con-J ferences became more and more precise. Although the call of^ the Democratic national convention left the selection of all delegates to the determination of the convention in each state, the result was the same. The national party organization was further developed and centralized shortly after the close of the Civil War by the estab- lishment of a congressional campaign committee at Washington for the purpose of directing congressional elections. The com- mittee of each party was composed, either principally or entirely, of members of Congress selected by their party colleagues for their astuteness in conducting campaigns. This committee has always worked in more or less close relations with the national committee and has been able to penetrate into the local politics of many districts more deeply than the larger committee has been able to do. The Forces Working Jor Strong Party Organization The pressure for organization and discipline brought to bear upon the states and other subdivisions by the national machine was increased very powerfully by local circumstances. The keen competition of parties for the offices and their spoils neces- sitated closer cooperation, more disciphne in the ranks, and more efficient leadership. Thus it came about that in a number of western and southern states the convention system and its accompanying organization had to be adopted, although they were odious to the more independent politicians. As Mr. Lin- coln pointed out in Illinois, in defence of the adoption of the convention by the Whigs, it was madness for any political party 134 American Government and Politics constantly to suffer defeat on account of dissensions in its own ranks which might be avoided by a general agreement in a party convention.^ The necessity for state and local party organiza- tion was further emphasized by the transformation of the older appointive ofl&ces into elective offices, and by that rapid increase in the number of government officials which inevitably accom- panied the social and economic development of the common- wealths. As the large number of elective offices made it impossible for the mass of the people to join in making nominations and running the political machinery, party business fell more and more into the hands of the politicians who were experts in the mysteries and the manipulations of primaries and elections. Wherever important elective offices were created, machinery for making party nominations inevitably followed, with its long train of primaries, caucuses, and conventions. Each new elective office only added to the weight, complexity, and strength of the party machine. Party organizations gathered great power also from the devel- opment of railways and industries within the states. With this economic advance charters, franchises, and special legislation were in great demand, and the political party that controlled a state legislature had within its gift privileges of almost priceless value. The agents of corporations learned that they could best secure their coveted advantages by making terms with the leaders of the political organizations, who would in turn manipu- late the primaries and conventions in such a way as to secure control of the necessary instruments of government. Party organization in the South was greatly strengthened after the Civil War by the strenuous efforts of the whites to oust the Republican "carpet-baggers," retire the negroes from the polls, and secure their ancient dominion. Any respectable white man who refused to cooperate with the Democratic party in its deter- mination to reconquer the position that had been lost by the war was regarded as a traitor to his community. Thus the South became "solid," and the government in each commonwealth was identified with the organization of the Democratic party.^ * For this important document, see Readings, p. 123. ^ See Readings, p. 402. The Development of Party Machinery 135 The way to offices, honors, and emoluments was only open to champions of the ruUng white organization, and the freedom of debate and discussion, which was so characteristic of the South before the Civil War, was supplanted by party discipline that kept the ranks in order against "negro domination." The rise of cities added a new element of strength and com- plexity to party machinery. As the great cities of Boston, New York, Cincinnati, Philadelphia, Chicago, and St. Louis forged to the front they ofifered unparalleled opportunities for the organi- zation and discipline of party workers. The election of the municipal ofl&cers led to the establishment of municipal pri- maries, caucuses, conventions, and committees — wheels within wheels, the mysteries of which could only be understood by ex- pert politicians who kept constant watch on their operation. It was not only the spoils of the offices — their fees, salaries, and other emoluments — that attracted the politicians and led them to organize their armies of workers. Franchises for street rail- way lines, water works, gas and electric light plants, telephones and telegraphs, elevated railways, and subways had to be granted; and whoever possessed the political power in the municipality could form a connection with the private interests seeking privi- leges, which would yield revenues undreamed of by kings of old. With the concentration of population the number of saloons increased; the Uquor interests began to fight for licenses and for immunities from the enforcement of the closing laws; and the saloons in every ward and precinct naturally became political centres in close connection with the powers higher up that were manipulating the whole political machine.^ The Rise and Development of Tammany Hall The evolution in municipal political machinery is illustrated in a striking manner by the rise and development of Tammany Hall in New York City. This organization was established some- time before 1789, for the purpose of connecting "in indissoluble bonds of friendship, brethren of common attachment to the poUtical rights of human nature and the liberties of the country." * See Readings, p. 505, for the interesting testimony of a New York pk)Iice- captain as to the connection established between the saloons and the domi- nant political organization. 136 American Government and Politics It seems that William Mooney, an Irishman of humble extraction, anxious to "diffuse the light of liberty," was chiefly instrumental in the organization of this society.^ As its purposes were patriotic and benevolent, it took the name of an Indian chief of William Penn's time, Tammany, celebrated for his wisdom, peace, diplo- macy, and exemplary life. Tammany had been canonized as a saint by the Revolutionary army in place of St. George, the slayer of the dragon and the patron protector of the British army. In honor of this noble red man, a number of Tammany societies had been established at various points throughout the East. The New York organization, therefore, got its name from older societies, and, as if to give more weight to its American character, it took the name of Columbus also and called itself ''the Tammany Society or the Columbian Order." J The early purposes of the Tammany Society were social and "p patriotic rather than poUtical, and it seems strange to say that some of the first leaders were decidedly anti-Catholic. As a secret society its membership was limited; candidates were initiated according to prescribed rites; and officers bearing In- dian titles were elected. The Society, hov/ever, in its membership and spirit was in decided contrast to the more aristocratic classes of New York City. When it was incorporated in 1805, its avowed object was to afford "reUef to the indigent and dis- tressed of the said association, to widows and orphans, and others who may be found proper objects of free charity." The Tammany Society seems to have entered pohtics in support of Jefferson during the hot campaign of 1800, and from that time forward it began to exercise more and more control over elections in the city. The extension of the suffrage by the state constitutional convention of 182 1 strengthened its hold upon the working-class electors of the city; and its influence was further advanced on the adoption of universal manhood (white) suffrage by the constitutional amendment of 1826.- A few years later the great famines in Ireland began to drive thousands of Irish peasants to America. They were received with open arms by ^ The traditional date, 1789, for the establishment of Tammany Hall seems to be wrong, and even Mooney's part in it is uncertain. See a forth- coming study of Tammany Hall by Mr. Kilroe of New York City. ^ See above, p. 85. The Development of Party Machinery 137 the Tammany Society, and through that organization many rose to positions of wealth and influence. As the population of the city and the membership in the Society increased, a Democratic-Republican political organization was slowly evolved which was nominally distinct from the Colum- bian Order. This poUtical organization, in the beginning, took the form of a "general meeting" composed of members of the Society and its political supporters. At length, about 1822, the general meeting was supplanted by a general committee com- posed of delegates elected at ward primaries; and in due time complete control over the Society and the Democratic-Republican organization, formed in connection with it, passed into the hands of a sub-committee of the general committee.^ For practical purposes, moreover, the leading members of the general committee and the sub-committee were at the same time officers and leading members in the Tammany Society. With the victory of the Jeffersonian party in the presidential election, the spoils of federal offices in New York City began to fall to the leaders in the Tammany organization. In 1839 the organization elected its first mayor of New York, and thus the spoils of local offices were added to the rich gains made in federal elections. The Society was further strengthened by the mul- tipUcation of municipal offices, and the astounding rise in local expenditures. Here were unlimited opportunities for an astute leader bent upon the manipulation of politics for his own personal gain. ^ This leader appeared in 1863 in the person of WilHam Marcy Tweed^ who, in that year, became chairman of the general com- mittee of Tammany Hall and the Grand Sachem of the Tammany Society. Tweed was born in 1823; he was educated at a public school, and entered politics in his ward as a fireman in a volun- teer company about 1850. He was shortly elected to the county board of supervisors, which had large powers distinct from those of the city authorities, in levying local taxes and spending money for county buildings and improvements. He served on this board for a period of thirteen years, being four times elected its president; and he used the financial power which it gave him ' See below, chap. xxx. ' There were, however, leaders of some renown before Tweed's day. 138 American Government and Politics to extend his authority over the other branches of the city admin- istration. From this point of vantage he began an organization within the Tammany Society for the purpose of controlUng the city administration. In 1869, the Tweed group had possession of the mayor's office, the common council, the district attorney's office, the county and city treasury, the street department, the comptroller's office, the municipal judgeships, the speakership of the assembly at Albany, the state legislature, and even the executive department of the state. ^ The pernicious operations of this group when in control of the metropoHs and the commonwealth cannot even be catalogued here. Between i860 and 187 1 the debt of the city was multi- plied nearly fivefold; a county courthouse which was to cost $250,000 really cost more than $8,000,000, the taxpayers being charged $470 apiece for chairs and $400,000 apiece for safes; and under the specious title of "general purposes " enormous sums of money were paid out fraudulently by the comptroller. In short, no bounds seem to have been set to the ambitions of Tweed and his fellow- workers; but they overreached themselves in 1 87 1, when their operations were exposed by the New York Times. A committee of indignant citizens was formed to break up the ring, and prosecute the criminals. Tweed was arrested on the charge of having stolen $6,000,000; he was convicted, fined, and sentenced to twelve years in prison in 1873; released on an order of the court of appeals, he was rearrested and con- fined in Ludlow Street jail, from which he escaped in 1875, only to be arrested in Spain and brought back to prison, where he died shortly afterward. The other leading members of the ring were likewise made to feel the penalties of the law. The exposure of this group of astute and unscrupulous political operators showed to the American people for the first time the precise ways in which powerful political machines might be built up out of the spoils of municipal offices and municipal privileges. New York City has not been the only sufferer from exploiting poUtical organizations; Philadelphia, Chicago, Cincinnati, St. Louis, San Francisco, and, in fact, every other American munici- pality of any size, has had an experience not differing fundamen- * For Croker's own description of his Tammany organization, see Readings, P- 567- The Development of Party Machinery 139 tally in kind, however much in degree, from that which New York encountered at the hands of Mr. Tweed and his followers. The Abuses of Political -Organizations With the development of powerful national, state,^ and munic- ipal political machinery there came innumerable specific abuses. In order to secure pliant tools as delegates to conventions and members of committees, the political directors frequently de- vised practices which excluded the honest voters from participa- tion in the party primaries. They instituted the " snap primary," that is, one held without proper notice, or unexpectedly, or at some unusual date. They packed primaries with their hench- men, who would drive out or overwhelm any dangerous oppo- nents.^ They padded the rolls of party members with the names of dead men, or men who had long ago left the community. They stuffed the ballot boxes and they prepared the slates which were forced through the nominating conventions in the face of oppo- sition. They entered into alliance with railway and other cor- porations from whom they received campaign contributions or levied tribute in other forms.^ It was thus that Jay Gould was able to declare, with a note of triumph: "I wanted the legisla- tures of four states, and to obtain control of them, I made the legislatures with my own money; I found this plan a cheaper one. ' ' Municipal councils and state legislatures all too frequently granted franchises, special laws, and innumerable privileges with- out regard to public welfare or the future of the country, gener- ally under the dominance of political leaders who had sold out to the privilege-seekers. More open, though by no means as dangerous, was the con- tinual extension of the spoils system under which public offices were distributed for party services, and efficiency in administra- tion sacrificed to strengthen political machines. In cities, states, and at Washington the spoils system took possession of politics. ' For Mr. Wanamaker's description of the Pennsylvania machine, see Readings, p. 128. ^ For an example, see Readings, p. 585. ^ For the practices of the Sugar Trust, see Readings, p. 572; see also Ostro- gorski, Democracy and the Organization of Political Parties, Vol. II, pp. 149- 204; for the way the poUticians sometimes laid tribute on railway corpora- tions, see Readings, p. 478. 140 American Government and Politics Even a man of the courage and integrity of Lincoln was unable to resist the demands of the spoilsmen. A member of Congress who had secured a local post mastership for a henchman de- manded his removal on personal grounds; " and I must turn him out," said Mr. Lincoln; "I do not want to but I must, — there is no help for it." When a friend asked Lincoln whether he or the congressman was President of the United States, Lincoln quickly replied that the congressman was President. Standing on this firm economic foundation, — the spoils of office and special privileges, — the organizations of the two great parties seemed in a fair way to escape from popular control alto- gether. Men of great abiHty, who sought to work independently., were promptly shown that all avenues of advancement would be closed unless they consented to at least some of the leading schemes of the directors. "The party," says Ostrogorski,^ "became a sort of church which admitted no dissent and piti- lessly excommunicated any one who deviated a hair's-breadth from the established dogma or ritual, were it even from a feeling of deep piety, from a yearning for a more perfect realization of the ideal of holiness set before the behever." This spirit of party loyalty was reflected in an editorial of the Richmond Whig in 1843, on the "no-party man." "We heartily join," said the editorial, "in desiring the extermination of this pestiferous and demorahzing brood, and will do whatever we can to effect it. . . . Let the Whigs and Democrats everywhere resolve that the gentry who are too pure to associate with either of them or to belong to either party, shall not use them to their own individual aggrandizement. Let them act upon the principle that the Whig or Democrat who has sense enough to form an opinion, and honesty enough to avow it, is to be preferred to the imbecile or the purist, or the mercenary, who cannot come to a decision, or is ashamed of his principles, or from sordid considerations is afraid to declare them." The party alignment, sharp enough before the Civil War, became even sharper for a long time after that great crisis, so that political independence or sympathy with any "third party" principles came to be regarded as a species of treason and intellectual dishonesty. Each of the two great party organizations rested upon the » Vol. II, p. 92. The Development of Party Machinery 141 supposedly popular basis of the party primaries, in which, theo- retically, every party member could share in the choice of can- didates and the determination of party policies. It was on the primaries, therefore, that the standing army of party workers, supported by the spoils of politics, concentrated their attacks; they were always busy; they knew when the term of every officer expired and new nominations must be made; they knew the dates and places of primary meetings, and, as eternal vigi- lance was the price of victory, they took possession of the field, leaving the ordinary citizen engaged in the pursuit of a liveli- hood in other than poHtical methods to grumble at being dispos- sessed of his political power. Attempts to Subject Parties to Legal Control Amid the momentous changes which followed the Civil War, — the rapid growth of industries, the swift development of the Great West, — the citizens were so much engrossed in private affairs that they let the politicians have full and undisputed sway for almost a generation. Slowly, however, there came an awakening to the fact that, important and necessary as party organization was in a democracy, it might be perverted from its true function of representing and carrying into effect popular will. Thereupon public-spirited men began a struggle for legis- lation which would substitute regular, compulsory, and public practices for the voluntary customs which the parties had devel- oped under the direction of leaders. The first attack was made upon the ballot and elections. Up until about 1880 the printing and distribution of ballots was left entirely in the hands of the various political organizations, and, generally speaking, there was no secrecy at all about elections, for each party furnished its members with ballots of a certain color, and it was easy to see how every one voted. The cost of printing ballots deterred poor men from entering politics, and made it well-nigh impossible for a third party, with no spoils, to gain a foothold. In the early eighties, a cry went up from the reformers for the introduction of the Australian ballot system, according to which public authorities were to furnish the ballots for all parties and provide complete secrecy for the voters. The most extravagant claims were advanced for this new reform: " It 142 American Government and Politics would not only put an end to bribery and intimidation of the electors and to frauds in the taking of the vote, but it would un- dermine the very foundations of the Machine: it would deprive it of a pretext for interfering with elections, for employing 'workers, ' for levying assessments, and would strip its candidates of their privileged character; the assent of the Machine would no longer be required for getting on the printed list; the state, which would henceforth make up this ballot, would enter every candidate on it whether recommended by a party organization or not, would submit them all without distinction to the electors; a poor man would therefore have the same facilities as a rich man, and an independent the same chances as a party hack of entering public hfe. The promoters of the reform succeeded in creating a genu- ine current of opinion in its favor; sermons were preached in the churches for the Australian ballot, numerous petitions were ad- dressed to the legislatures, and eventually the reformers ended by intimidating the politicians intrenched in those assemblies." * State after state adopted the Australian system, and assumed the responsibility of printing and distributing the ballots and safeguarding the secrecy of elections. To-day only two states, South CaroHna and Georgia, have not adopted some form of the Austrahan ballot.^ It has failed to reaKze the high hopes of its promoters, but it has been of such undoubted service in puri- fying elections that no one would think of returning to the old methods. The failure of this serious attempt to abolish party machines by merely regulating elections while leaving the preliminary nominating work to the untrammelled control of party organi- zations, soon raised a demand that the state should go behind the elections and supervise the primaries of parties, their com- mittees, conventions, and campaign funds. Even before the adoption of the Australian ballot, California seems to have opened this new phase in the evolution of party . government by passing, in 1866, a tentative measure providing 'jjf \ for regularity and publicity in the conduct of primaries and caucuses, but at the same time allowing party committees to decide whether the rules laid down in the statute should become binding on them. Five years later, Ohio enacted a law contain- * Ostrogorski, Vol. II, p. 500. 2 gee below, chap. xxx. The Development of Party Machinery 143 ing similar optional regulations; and in a short time other states followed with uncertain and halting steps the examples thus af- forded. The notion of compulsory regulation of party concerns was vigorously combated, because it was urged that whenever the members of a party beUeved abuses existed the voluntary adoption of the statutory regulations would immediately follow. Logic, however, was defied by events, or rather by pressures which were not apparent to the logicians. Permissive statutes failed completely to accomplish the purpose for which they were at first deemed sufficient. After a lapse of a few years, during which the results of the Australian ballot were awaited, there began to come from our state legislatures a series of compulsory statutes, at- tacking first the minor features of party organization and opera- tions, and then extending in every direction, until the laws of the last decade have made the party system an integral part of the legal framework of government. "The method of naming candi- dates for elective pubHc offices by poHtical parties and voluntary political organizations," runs the Oregon primary law of 1905, ''is the best plan yet found for placing before the people the names of qualified and worthy citizens from whom the electors may choose the officers of our government. The government of our state by its electors and the government of a political party by its members are rightfully based on the same general principles." ^ A careful, but probably not exhaustive, review of the state legislation of the six years 1901-1906, reveals more than sixty- two statutes, many of them broad and comprehensive, regulat- ing political parties in their .varied operations.^ The years ^ For this interesting preamble, see Readings, p. 132. ^ In I go I statutes relating to primaries were enacted in Nebraska, Cali- fornia, Connecticut, Florida, Georgia, Illinois, Indiana, Massachusetts, Min- nesota, Missouri, Montana, New Hampshire, New York, North Dakota, Oregon, and Tennessee; in 1902, in Maryland, Massachusetts, Minnesota, Mississippi, and New York; in 1903, in California, Florida, Idaho, Maine, Massachusetts, Nebraska, New Hampshire, Ne\\f Jersey, and Rhode Island; in 1904, in Alabama, Louisiana, Massachusetts, New Jersey, Ohio, Oregon, and Wisconsin; in 1905, in Arizona, Connecticut, Florida, Illinois, Indiana, Maine, Massachusetts, Nebraska, New Hampshire, North Dakota, South Carolina, South Dakota, Tennessee, Wisconsin, Michigan, Montana, and Oklahoma; in 1906, in Illinois, Maryland, Pennsylvania, Texas, Louisiana, Michigan, and Wisconsin., For a partial review of 1907-1908, see Political Science Review, Vol. II, No. 3, p. 417. 144 American Government and Politics 1907-08 showed no relaxation of legislative activity in this direction, for they gave us the most revolutionary direct primary laws yet devised: those of Wisconsin, New Jersey, Iowa, Illinois, Missouri, Nebraska, Washington, and Kansas, leaving out of account less striking measures. Oklahoma came into the Union in 1907 with a startling constitution requiring, among other things, that the legislature shall enact laws for a mandatory primary system which shall provide for the nomination of all candidates in all elections for state, district, county, and municipal offices, including that of United States Senator. In New York, Gov- ernor Hughes urged drastic reform in the primaries and party machinery at the legislative sessions of 1908, 1909, and 1910; and in Connecticut a commission has reported to the legislature in favor of direct nominations. These new laws fix the dates and places of party primaries, provide official ballots furnished by the government to all parties without charge, regulate the composition and powers of party committees, abolish conventions altogether or control their com- position and procedure, institute, in many instances, direct nominations by party vote for nominations by conventions, forbid contributions by corporations, compel party committees to account for the receipt and disbursement of funds, Hmit the amount which the respective candidates may spend, and other- wise control the machinery and practices of all parties.^ * This whole subject is treated in great detail below, chap. xxx. PART II THE FEDERAL GOVERNMENT CHAPTER VIII THE GENERAL PRINCIPLES OF THE FEDERAL SYSTEM OF GOVERNMENT The Doctrine of Limited Government It is a common error to regard the federal Constitution as an instrument relating solely to the government that has its seat at Washington. In reality, it provides a general political system by distributing the public functions between the state and na- tional governments and by laying down certain fundamental limitations on the powers which each may exercise. In other words, while creating a national executive, legislature, and judi- ciary, and marking out their spheres of power, the Constitution, expressly and by implication, also limits the domain within which the government of each state must operate. It does more: it creates a system of private rights secure against all government interference; it provides for each person "a sphere of anarchy" ^ — of no government — so to speak, within which he may act without any intervention on the part of public officials. In some matters th€ individual is protected from the federal government, in others from the state government, and in still others he is entirely free from both governments. These limitations are not mere poHtical theories or vague declarations of rights; they are fairly precise rules of law expounded and applied by the courts, enforced by proper executive authorities, and respected by the- citizens.^ ' See Burgess, Political Science and Constitutional Law, Vol. I, pp. 174 ff. ^ For the constitutional limitations on the federal government, see Read- ings, pp. 134 ff., and on the state governments, ibid., pp. 391 ff. By a compari- son the limitations conmion to both may be ascertained. L 145 146 American Government and Politics This system of private rights or individual liberty, however, cannot be understood by learning the clauses of the Constitution which contain prohibitions on the state and federal governments. It is really a difficult and technical branch of law, to be mastered only by a painstaking examination of a long line of }udicial de- cisions interpreting those clauses. Failure to recognize this fact constantly leads to many incorrect assertions about "the rights of American citizens." For example, the police of a city forbid a Socialist parade or break up a street corner meeting; immediately there appear in the newspapers letters from indignant citizens denouncing the police for preventing the exercise of the " rights of free speech guaranteed by the Constitution of the United States." An examination of the clause, however, to which they refer shows that it is Congress that can make no law abridging the freedom of speech, the states being left to their own devices in dealing with such matters. It is not only ill-informed citizens that make this error. Such a serious and responsible body as the Republican national convention in i860 asserted in its platform, "That the maintenance of the principles promulgated in the Declaration of Independence and embodied in the federal Constitution, — *that all men are created equal; that they are endowed by their Creator with certain inaUenable rights; that among these are life, liberty, and the pursuit of happiness; that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed,' — is essential to the preserva- tion of our republican institutions." Of course any student of history and law knows that the Constitution does not embody any such principles, and that the federal government is controlled only by the definite rules of law imposed by the written instru- ment itself. The fundamental character of these rules may be best illus- trated by a comparison with the English system. Any law passed by Parliament, — that is, by King, Lords, and Commons, — must be enforced; it cannot be called into question by any court; the only remedy for the citizen is at the ballot-box when members of the House of Commons are elected. If the British Parliament, therefore, should pass a law confiscating the land now owned by private persons, there would be no relief for the victims, unless the same Parliament or a succeeding one could be induced to repeal the law in question. If the Congress of the The Federal System of Government 147 United States, however, should pass such a measure, it would be the duty of the courts on the presentation of the proper case to protect the land-owner in his property rights by declaring the law null and void, — in confhct with that section of the Fifth Amend- ment which provides that no person shall be deprived of life, liberty, or property without due process of law; and that private property shall not be taken for public use without just compen- sation.^ Likewise if the legislature of a state should pass such a measure it would be the duty of the courts to protect the citizen under the Fourteenth Amendment forbidding any state to de- prive a person of life, liberty, or property without due process of law — compensation being, under judicial interpretation, an indispensable feature of "due process."^ In considering the limitations on the federal government, we must remember at the outset that Congress differs fundamentally from a state legislature. The former has only those powers which are expressly conferred by the clauses of the written instrument ; the latter enjoys all powers of government, except those denied to it by the federal Constitution and the state constitution under which it operates. The Hmited character of congressional authority is evident in the Constitution itself; and it is expressly enunciated in the Tenth Amendment, declaring that," The powers not delegated to the United States by the Constitution, nor pro- hibited by it to the states, are reserved to the states respectively, or to the people." Nevertheless, Congress, acting under the clause authorizing it to make all laws necessary and proper for carrying into execution the powers expressly conferred, has been by no means as limited as the literal interpretation of this doc- trine would seem to imply.^ Private Rights under the Federal Constitution ^ The constitutional limitations on the federal government fall into two groups : ' {a) Those designed to protect personal liberty ^ Of course private property cannot be taken for private use at all. * It should be noted, however, that the state retains its " police power " in spite of the constitutional limitations — that is, its power to make laws in the interest of heahh, public safety, morals, etc. See Readings, p. 394 and below, chap. xxii. ^ Readings, pp. 66 ff. and 237 ff.; see above, p. 72. ■^ Reference: Buigess, Political Science and Constitutional Law, Vol. I, pp. 184 fif. * The Ihnitations on state government are discussed below in chap. xxii. T48 American Government and Politics against arbitrary interference on the part of the government, anc (^>) those designed to protect private property against confis cation and irregular action on the part of federal authorities. I. The Umitations on behalf of personal rights, which, unde] the Constitution run against the federal government, may b( divided into five classes. In the first place. Congress cannot makt ' any law respecting the estabhshment of a rehgion, nor can it in- terfere with the freedom of religious worship. This does nol mean, however, that any person has a right to commit an act under the guise of a religious ceremony, which transgresses the ordinary law of the land. This point was discussed by the Su- preme Court in a case involving the right of Congress to prohibit polygamy in the territory of Utah and punish offenders who violated the law.V Under this statute a Mr. Reynolds, who was indicted for the crime of polygamy, set up by way of defence the contention that the church to which he belonged enjoined the practice of polygamy upon its male members, and that, under a religious sanction and according to a religious ceremony, he had married two wives. The Court held, however, that religion has to do only with the relations of man to " an extra-mundane being," and that no citizen can claim a right, in the name of religious freedom, to violate a criminal statute. In the second place. Congress has no power to abridge freedom of speech or of the press.^ It was the purpose of this clause to prevent Congress from estabUshing a press censorship or enacting any law prohibiting political criticism. In spite of this express provision, Congress passed in 1798 a Sedition Act providing heavy penalties for resisting the lawful acts of the federal officials and for publishing anything bringing or tending to bring the federal government or any of its officers into disrepute. Under this act many American citizens were fined and imprisoned for what would be regarded to-day as harmless criticism of public author- ities. When the law was brought before the Supreme Court, that tribunal decided the case on a technicaUty and refused to pass upon the question of constitutionality.^ ^ Reynolds v. United States, 98 U. S. R., 145. ^ In the territories and the District of Columbia, of course. Congress, hav- ing general legislative power, can estabhsh the law of libel and slander. Con- gress legislates directly for the District of Columbia, and in the organized territories the legislatures make the law under authority of Congress. ' United States v. Hudson and Goodwin, 7 Cranch, 32. The Federal System of Government 149 In the third place, the Constitution guarantees to the people the right to assemble peaceably and petition the government for redress of grievances. This right is upheld against state govern- ments as well as the federal government; but, of course, it does not secure to the petitioners the privilege of having their petition acted upon by the federal authorities.^ In the fourth place, the power of the federal government to punish persons is hedged about in many ways. Congress has no power to define treason; it is defined in the Constitution: "Trea- son against the United States shall consist only in levying war against them or in adhering to their enemies, giving them aid and comfort." Congress cannot, therefore, vindictively declare any act treason which does not meet its approval. Furthermore, the trial of persons accused of this high crime is carefully safeguarded. No person can be convicted of treason unless on the testimony of two witnesses to the overt act or on confession in open court. In the case of the United States v. The Insurgents,^ the Court ordered that the names, residences, and occupations of the jurors, and a complete list of witnesses should be furnished the accused; and that a reasonable time be allowed for the defence to prepare its case after receiving this in- formation. The Court, furthermore, declared that until the overt act of treason had been proved by testimony of two witnesses, no evidence relating to the charges could be introduced. While Congress has the power to provide the penalties for treason, the Constitution expressly stipulates that no attainder of treason shall work corruption of blood or forfeiture except dur- ing the life of the person attainted. In old English practice, corruption of blood meant the destruction of all inheritable qualities, so that any attainted person could not inherit lands or other hereditaments from his ancestors nor retain those which he already possessed or transmit them to his heirs.^ The consti- tutional provision mentioned above was designed to prevent this punishment of the relatives of traitors* and accordingly no pun- ishment or proceedings may be construed to work a forfeiture of the real estate of a traitor longer than his natural life.^ ^ Burgess, Middle Period, pp. 253-296. * 2 Dallas, 335. ^ Story, Commentaries on the Constitution (5th ed.), sec. 1299. * Bigelow V. Forrest, 9 Wallace, 339. 150 American Government and Politics In the fifth place, proceedings against persons charged with crime under the federal law are controlled by several expUcit provisions. Congress cannot act as a court by passing a bill of attainder condemning any person to death or to imprisonment or imposing any penalty whatsoever. Congress can pass no ex post facto law ; that is, no law making an act a crime which was not a crime when committed, or adding new penalties after a commission of an act, or modifying the procedure in any such way as to make it substantially easier to convict.^ Federal authori- ties have no power of arresting wholesale on general warrant; all warrants of arrest must be issued only upon probable causes supported by oath or affirmation and particularly describing the place to be searched and the persons and things to be searched. Indictment by grand jury and trial by jury are secured to all persons coming within the jurisdiction of the federal authorities, except in the insular possessions.^ The writ of habeas corpus can- not be suspended unless in case of rebellion or invasion, when it ^ may be required by pubHc safety; that is, under all ordinary I circumstances any person held by federal authorities has the right to have a speedy preliminary hearing before a proper judicial , tribunal.^ Excessive bail cannot be demanded by federal authori- ties; in other words, except in capital cases, federal courts must release prisoners on bail, and must not fix the amount at such an ' unreasonable sum as practically to deny the right. Finally, in general, the federal government must allow due process of law in all of its criminal proceedings: the trial must be open and speedy and in the state and district where the crime was com- mitted; the defendant must be informed of the nature and cause of the charge against him; the witnesses against him must be brought face to face with him; he may force, by compulsory pro- cess, the attendance of witnesses in his favor; he cannot be com- pelled to testify against himself in any criminal case; and he has a right to have the assistance of counsel in his own behalf.^ * Of course, Congress is not so limited in making laws applicable to aci which may be committed in the future. 2 See below, chap. xxi. ^ Below, chap, xv •* It must be noted that these privileges in criminal matters are not ex tended to cases arising in the land and naval forces or in the militia when in active service in time of war or public danger. See below, chap, xvii i d The Federal System of Government "v ^5^ II. The limitations on the federal government ^ in behalf of property rights are relatively few in number, but they are funda- mental in character. The power to define property is under our system left to the state governments, subject to the one great re- striction that slavery and involuntary servitude, that is, property^ in man, shall not exist. Congress has no power to define property except in the territories not organized into states.' Moreover, the Constitution provides some exphcit limitations on the power of the federal government to attack the property of private per- ' sons: Congress cannot impose duties on articles exported from any state; all direct taxes must be apportioned according to the population so that a majority of the people cannot shift the bur- den of direct taxation to the minority.^ Duties, imposts, and excises must be uniform, that is, must fall upon the same article with the same weight everywhere throughout the United States. in order to protect the taxpayer, it was provided in the Consti- tution that revenue bills must originate in the Hou§e of Represen- \ tatives, which is composed of members chosen directly by the ] voters; but this provision is a dead letter in practice. The Con- stitution also stipulates that no money shall be drawi ♦from the ♦ treasury except under appropriations made by law; consequently , the executive authority cannot on its own motion withdraw money from the public treasury. It is not only by way of taxation that the federal government may approach private property. It enjoys the power of eminent domain; in other words, it may take private property for pubUc use; but it must make just compensation to the owner. In de- termining what is just compensation, federal authorities must take into account the use for which the property in question is suitable and pay due regard to the existing business or wants of the community and such as may be reasonably expected in the immediate future. The proceedings in ascertaining the value of property taken for public use may be prosecuted before com- missioners or special boards or the courts, with or without the * For federal limitations on state governments in behalf of property, see below, chap. xxii. ^ Congress may define property, however, in inventions and publications ^ under its right to grant to authors and inventors special privileges with re-, gard to their respective writings and discoveries. ' See Readings, pp. 283 ff. and 323 ff. 152 American Government and Politics intervention of a jury as Congress may determine. All that is required is that the examination into the value of the property shall be conducted in some fair and just manner affording to the owner of the property in question an opportunity to present evi- dence as to its value and to be heard on that matter.^ The Separation oj Powers Second in importance to the doctrine that our government is limited by certain fundamental principles of law is the theory that the power conferred on the federal government must be dis- tributed among three distinct departments : legislative, executive, and judicial. This is a doctrine which publicists delight to ex- pound with great show of historical learning; it is a legal prin- ciple interpreted by the courts and applied to concrete cases like any other rule of the Constitution; - it is a political slogan reiter- ated in Congress with great vehemence, especially in times when the President, expressing more accurately the living forces of the nation than do the Senators and Representatives, overshadows, in influence, the legislative branch of the government. According to the traditional account, this doctrine came into our law and practice from Montesquieu, whose treatise on the Spirit of the Laws was a veritable political text-book for our eighteenth-century statesmen, and it was derived by that dis- tinguished French author from his study of the English consti- tution. In point of fact, however, the doctrine, as far as Mon- tesquieu was concerned, was a notion which he acquired during a conflict between the judiciary and king in France in which he participated, and afterwards read into his study of the institu- tions of England.^ As a principle of law and government, it is a part of that system of checks and balances and subdivisions of power by which statesmen have sought to prevent the develop- ment of that type of democracy that functions through simple legislative majorities.^ It is explained with great insight by ^ Boom Co. V. Patterson, 98 U. S. R., 403; United States v. Jones, 109 U. S. R., 513. ^ See Readings, p. 138, for an important judicial decision on this point. ' Hatschek, Englisches Staatsrecht, p. 24. * The place of the theoi-y of separation of powers in the evolution of govern- ment is thus described by Treitschke in comparing Sieyes and Rotteck: The Federal System of Government 153 Madison,^ and thus eloquently defended by Webster: "The spirit of liberty ... is jealous of encroachments, jealous of power, jeal- ous of man. It demands checks; it seeks for guards; it insists on securities; it intrenches itself behind strong defences, and forti- fies itself with all possible care against the assaults of ambition and passion." The doctrine is not expressly stated in a separate article in the federal Constitution, as in several state constitutions, but is thus embodied in the opening sentences of the three articles relating to the legislative, executive, and judicial power: "All legislative powers herein granted shall be vested in a Congress of the United States. . . . The executive power shall be vested in a President of the United States. . . . The judicial power . . . shall be, vested in one Supreme Court and such inferior courts as Con- gress may from time to time ordain and establish." Thus, says Kent, the Constitution has effected the separation of powers "with great felicity of execution, and in a way well calculated to preserve the equal balance of the government." A close examination of the Constitution, however, shows that the men who framed it were imable to maintain the purity of the principle when they came to prescribing the mode of exercising the powers of government in detail. Indeed, it was thoroughly understood by the framers that a complete separation of powers was impossible, save in the realm of pure theory. The appointing power of the President is shared by the Senate; so is his treaty-making power. Owing to the amount and variety of executive business, the President must function through de- partmental offices, and these are created 9.nd to some extent con- trolled by Congress. On the other hand, the President shares in legislation through his veto power and his right to send as many messages as he chooses. Even the Supreme Court which is created by the Constitution lies at the mercy of Congress, for Congress may prescribe the number of the judges and fix their,/ salaries subject to certain restrictions. It might, for instance, " Er setzt ihn Rotteck an die Seite: dieser habe die Lehre des Contrat Social dutch einige Begriffe des monarchischen Staatsrechts verdiinnt, Sieyes das Feuer der Rousseauschen Volkssouveranitat mit dem Wasser der Montes- quieuschen Gewaltenteilung verschmolzen." Zweig, Die Lehre vom Pouvoir Constituant, p. ii6. ^ Readings, p. 50. 154 American Government and Politics fail to create the requisite lower and intermediate courts, reduce the number of judges, and through the confirming power of the Senate secure pHant judges; and thus overthrow the ^prestige of the judiciary or make it subservient to the legislative branch. Furthermore, poUtical practice has shown that the influence of a department of the government depends not so much upon the legal authority which it enjoys as upon the great interests which function through it.^ For example, during the period of Recon- struction, Congress dominated the executive, overrode his exer- cise of the veto power, and through the Tenure of Office Act and other measures gathered into its hands almost the whole domain of federal authority.^ Recently the executive has come to the front as the more popular and influential branch of the federal govern- ment, although not without protests from Congress.^ As a legal doctrine apphed by the courts, the theory of the division of powers takes a more precise form. It was early ap- plied in Hayburn's case relative to an act of Congress authorizing judges of the circuit courts to receive and hear certain claims to pensions, subject to the supervisory powers of the Secretary of War. The judges agreed that the power which Congress sought to confer was not judicial in its nature, and they therefore re- fused to serve in the capacity required by the law.^ The judges for the district of North Carolina stated that the courts were not warranted in exercising "any power not in its nature judicial, or if judicial, not provided for upon the terms the Constitution re- quires." To cite another instance, a statute empowering the Secretary of War to inquire and determine whether a bridge ob- structs navigation, and, on concluding that it does, to order its alteration, is void because it delegates to an executive officer legislative powers vested by the Constitution in Congress.^ The soundness of the theory of the separation of powers as a practical working scheme of government has been rather severely criticised recently by two eminent publicists. Professor Ford and ^ Readings, p. 265, for Senator Beveridge's view of executive influence. ^ Haines, Conflict over the Jtidicial Powers, pp. 165 fif. ^ Readings, pp. 265 and 442. * Supreme Court decisions: 2 Dallas, 410; see also Gordon v. United States, 117 U. S. R., 697. * Kent, Commentaries on American Law (14th ed.), Vol. I, p. 221, note. The Federal System of Government 155 Professor Goodnow.^ They hold that the functions of govern-\ ment are only twofold, the formulation and execution of public ^ will, — that is legislative and executive, — the judiciary being merely a branch of the law-enforcing power. / In their view the separation of powers only creates friction in the government, divides responsibility, necessitates iron-bound party machinery outside the government to overcome the unwieldiness of the sys- tem, and altogether works for confusion and obscurity instead of simplicity and efficiency. They cite the English system, in which the legislative and executive powers are fused under the direction of the Cabinet, and the judiciary cannot pass on the constitutionality of laws. In response to this criticism. Professor Burgess contends: "I think that we are upon the right line, and that those nations which have developed parliamentary government are beginning to feel, as suffrage has become more extended, the necessity of greater executive independence. Parliamentary government, i.e., government in which the other departments are subject to legislative control, becomes intensely radical under universal suffrage, and will remain so until the character of the masses be- comes so perfect as to make the form of government very nearly a matter of indifference. /There is no doubt that we sometimes feel embarrassment from a conflict of opinion between the inde- pendent executive and the legislature, but this embarrassment must generally result in t^he "adoption of the more conservative course, which is far less dangerous than the course of radical ex- perimentation. . . . The f eature^gr excellence of the American governmental system is the constitutional, independent, unpo- litical jildiciary and the supremacy of the judiciary over the other departments in all cases where private rights are concerned." ^ This undoubtedly represents the prevailing view of American publicists and statesmen, and is at all events the fundamental doctrine of our law. * Ford, Rise and Growth of American Politics; Goodnow, Politics and Ad- ministration. ^ Political Science Quarterly, Vol. X, p. 420. 156 American Government and Politics The Supremacy of Federal Law "This Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States shall be the supreme law of the land." So runs the federal Constitution, — apparently as clear as a statement of law can be, — but it leaves unsettled the question as to the power that shall decide what laws of the United States are duly made in pursuance of the provisions of the Constitution and what state laws are in conflict with the superior law. This question involves the very nature of the federal Union, and for more than half a century the famous controversy over states' rights raged around it. Happily, how- ever, it is now definitely settled, arid its leading features are of historical interest only.* Federal law is supreme ; and, in the last instance, the Supreme Court of the United States is the final in- terpreter of that law. The decisions of this Court are binding on Congress, the states, and private persons. The application of this principle may be illustrated by two cases. Congress provided by law that when any civil suit or criminal prosecution was begun against a federal revenue officer in any court of a state,^ the case could be immediately removed into the federal courts. A federal revenue officer, in the discharge of his duty, killed a man in Tennessee, and his case, against the protest of the state, was removed to a federal court in due form. In discussing the constitutionality of this law, Mr. Justice Strong said of the federal government: — "It can act only through its officers and agents, and they must act within the states. If, when thus acting, and within the scope of their authority, these officers can be arrested and brought to trial in a state court for an alleged offence against the law of the state, yet warranted by the federal authority they possess, and if the general government is powerless to interfere at once for their protection, — if their protection must be left to the action of the state courts, — the operations of the general government may at any time be arrested at the will of one of its members. The legislature of a state may be unfriendly. It may affix pen- ^ Readings, p. 140. ' On account of an official act, of course. The Federal System of Government 157 alties to acts done under the immediate direction of the national government and in obedience to its laws. It may deny the au- thority conferred by those laws. The state court may administer not only the laws cif the state, but equally federal law, in such a manner as to paralyze the operations of the government. . . . We do not think such an element of weakness is to be found in the Constitution. . . . No state government can exclude it from the exercise of any authority conferred upon it by the Constitu- tion, obstruct its authorized officers against its will, or withhold from it, for a moment, the cognizance of any subject which that instrument has committed to it."'^ Another phase of federal supremacy is illustrated by the case involving the constitutionality of a law passed in New York fixing the hours for workmen in bakeries. The owner of a bakery con- tended that this law violated the principles of the federal Con- stitution, and on appeal to the Supreme Court his contention was upheld. Thus the state law was set aside by the superior force of the federal Constitution.^ Interstate Relations The Constitution secures to the citizens of each state the privi- . leges and immunities of the citizens in the several states, and the federal judiciary defines and enforces them by proper pro- cesses. This means that there are certain great legal rights^ necessary to free migration throughout the American empire^ ^ to the successful conduct of business and industry, and to the enjoyment of property, which no state may take away from a citizen of another commonwealth coming within its borders. It means also that no state may confer civil rights on its own citi- zens and at the same time' withhold those rights from citizens of other states.* It does not mean, however, that A. of Illinois, on moving into Indiana, may claim all privileges which he ^ Tennessee v. Davis, loo U. S. R., 257. "^Readings, p. 617; Willoughby, The American Constitutional System, chaps, v-x. ^ Readings, p. 146, for judicial interpretation of the rights; see also the lucid discussion of the question in Willoughby, American Constitutional System, pp. 278 ff. * Civil rights —7 rights of person and property — should always be distin- guished from political rights — the right to vote, hold ofl&ce, etc. 158 American Government and Politics enjoyed in the former state; he is, on the contrary, entitled only to the rights enjoyed by citizens of the latter state. For example, A. enjoys in Illinois the right to sell cigarettes subject to certain restrictions; in Indiana the sale of cigarettes is forbidden by law; consequently A. cannot claim there the privilege which he had in the former state. A concrete illustration is afforded by the case of Ward 2;. Maryland.^ By a law passed in 1868 the Maryland legislature provided that persons not permanent residents in the state must take out licenses before offering for sale, within certain districts, goods not manufactured within that commonwealth. Ward, the plaintiff in the case, was a resident of New Jersey, and, with- out procuring a license, he sold within the prohibited district goods not manufactured in Maryland. He was accordingly arrested for violating the law, but set up the contention that the law of Maryland was in contravention of the federal Constitution. When the case came before the Supreme Court of the United States, it was held that the statute in question was "repugnant to the second section of the fourth article of the Constitution, which provides that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." ^ To faciHtate intercourse among the several states, especially in the transaction of legal business, the Constitution provides that full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. Congress has provided by law the form in which such acts and proceedings shall be authenticated, and has ordered that, when so authenticated, "such faith and credit shall be given them in every court within the United States as they have by law and usage in the courts of the state from which they are taken." This provision works out in the following way. A. brings suit against B. in a court in Ohio, of which state they are both resi- dents; and, after trial, the Ohio court decides that B. owes A. $1000 and gives judgment accordingly. B. thereupon moves into New York, taking his property along, before it can be at- tached for the debt. When A. in quest of his money goes after B. into New York, it is not necessary that the case should be * Ward V. Maryland, 12 Wallace, 418. * Willoughby, op. cit., pp. 280-281; Readings, p. 146. The Federal System of Government 159 tried again in order to get the proper process to recover his money. All he has to do is to show in the New York court of proper jurisdiction the authenticated judgment of the Ohio court. B. may contend that the records are not authentic, or the court that rendered the first judgment did not have juris- diction, but he cannot secure a reopening of the case on its merits.' The extradition of criminals, long an international practice based on treaty stipulations between independent countries, was carried over into the federal Constitution by the provision that any person charged with crime, fleeing from justice and found in another state, shall be delivered up on demand of the executive authority of the state from which he fled to be removed for trial in the state having jurisdiction of the crime. Congress has amplified the constitutional provision by an act declaring that on the demand from the proper authority, ''it shall be the duty of the executive authority of the state" to cause the fugitive to be seized and handed over to the agent of the state making the requisition. The words "it shall be the duty" were interpreted by Chief Justice Taney as merely declaratory of a moral duty, not as mandatory and compulsory. "The act," continued the Justice, "does not provide any means to compel the execution of this duty, nor inflict any punishment for neglect or refusal on the part of the executive of the state; nor is there any clause or provision in the Constitution which arms the government of the United States with this power." The governor of a state is therefore under a moral obligation to surrender criminals, but he may use his discretion in the matter.^ The exact process followed in the rendition of criminals is prescribed in an Act of Congress. In addition most states have statutes providing that an accused person can be arrested upon information of the charge being received, and held until the official demand is made. Let us suppose that A. commits murder in Ohio and escapes into Indiana. As soon as his where- abouts are discovered, the authorities of the place where the offence was committed will request his arrest, and he will be taken into custody by the police or the sheriff of the locality where he is found. A regular charge will then be lodged against him in ^ Willoughby, op. cit., pp. 273 fit. ^ See Readings, p. 148, for a practical example. i6o American Government and Politics Ohio, if this has not been already done, either by an indictment by grand jury or an affidavit made before a magistrate. There- upon the governor of Ohio will issue to the governor of Indiana a formal demand for the surrender of A., appending to it a certified copy of the indictment or affidavit. If the governor of Indiana finds that the papers are regular and that A. is a fugitive from Ohio and was in that state at the time that the alleged murder was committed, he will issue an order for his surrender to the agent appointed for that purpose by the governor of Ohio. A. will then be taken to Ohio and tried for the murder.^ Citizenship and the Suffrage In international law, the term "citizenship" means member- ship in a nation, but at the time of the formation of our federal Constitution it had received no very definite connotation either in law or popular practice.^ The Constitution, therefore, speaks of "citizens of the United States" and "citizens of the states"; but a strict usage of the term would require us to speak of citizens of the United States and residents or inhabitants-of the states, although this usage might popularly be regarded as a species of pedantry. The state, however, has no power to con- fer or withhold citizenship, although it may, as will be seen later, confer many civil and political rights on foreigners. The exclusive right to admit aliens to citizenship is given to the federal government by the clause authorizing Congress to make uniform rules of naturalization. Citizenship in the United States may be acquired by birth or by naturalization. All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are ipso facto citizens of the United States. This is called citizen- ship by reason of birth in a particular place, i.e., jure soli. To secure civic rights to children born to citizens of the United States residing abroad, Congress has provided by law that all children born out of the limits and jurisdiction of the United States, whose tathers are at the time of their birth citizens thereof, shall be deemed citizens of the United States. The rights of * Reference: J. B. Moore, Extradition and Interstate Rendition. ^ Thayer, Cases on Constitutional Law, Vol. I, p. 459, note. The Federal System of Government i6i citizenship, however, do not descend to children whose fathers never resided in the United States.^ Foreigners may be admitted to citizenship by naturalization, either collectively or individually. Collective naturalization may occur when a foreign territory and its inhabitants are trans- ferred to the United States. The manner of this naturaUzation is generally stipulated in the terms of the treaty of transfer. For example, the treaty with France ceding the Louisiana terri- tory provided that the inhabitants of the territory should be incorporated into the Union of the United States and admitted as soon as possible, according to the principles of the federal Constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States.^ The process of naturahzing individuals is subject, in all of its details, to the laws of Congress, and it is committed to the charge of certain specified courts." NaturaUzation can be effected only in a c ircui t or district court of the United States, or a district or supreme court of a territory, or a court of record of a state hav- ing law or equity jurisdiction in cases in which the amount in controversy is unUmited, and having a seal and a clerk.* Only white persons and persons of African descent may be natu- rahzed; the Chinese are excluded expressly by law, and this ex- clusion has been extended to the Japanese on the ground that they are not white persons. The process of naturalization falls into three stages: (i) At least two years prior to his admission, the alien (who must be at least eighteen years of age) makes a declaration on oath before the clerk of a court stating his intention to become a citizen and renouncing his allegiance to any foreign power. (2) Not less than two years nor more than seven years after this declara- tion (and after five years' residence in the United States), the ahen must file in his own handwriting his petition for citizen- ship, stating that he is not opposed to organized govern- ment, is not a polygamist, intends to become a citizen, and ' Readings, p. 150. 2 See Moore, Digest of International Law, Vol, III, p. 276. ' Under the general supervision of the Bureau of Immigration and Natu- ralization in the Department of Commerce and Labor at Washington. * There are about 3500 courts which have power to issue naturalization papers under the law of 1906. M 1 62 American Government and Politics renounces his allegiance to his former country. This petition must be verified by the affidavits of two citizens certifying to the residence and good moral character of the applicant.^ (3) After ninety days have elapsed from the date of filing the petition, the appHcation is heard by the court. The appUcant renews his adherence to the declarations made in the petition, and is then examined by the court. This examination may be formal or thorough and searching, according to the standards of the judge conducting the final hearing. Examining judges are re- quired to satisfy themselves that all the provisions of the law have been complied with, that the applicant has behaved as a man of good moral character, is attached to the principles of the Con- stitution of the United States, and well disposed to the good order and happiness of the same. When the court is duly satisfied the certificate of naturalization is issued. A large power of dis- crimination, is thus conferred upon the court, and there are some instances of its being abused by judges personally opposed to the political principles expressed by the alien applicants. The original constitution contained no positive provisions relating to the right to vote, but left the question to the states for solution by stipulating that voters for members of the House of Representatives should have the qualifications requisite for electors of the most numerous branch of the state legislature, and at the same time permitting the state legislatures to decide how presidential electors should be chosen.^ Accordingly there does not exist in the United States, as in Germany, a national suffrage distinct from the suffrage of the respective states. Thus matters stood until the close of the Civil War, when the Repub- lican party sought to secure its supremacy and enable the newly emancipated negro to protect himself against his former master by forcing the adoption of the Fourteenth and Fifteenth amend- ments. The effect of these provisions, however, was not to create one uniform suffrage throughout the Union, but to leave the regula- tion of the matter to the states, subject to the provision that ^ An applicant must reside at least a year in the state or territory in which he makes application. If he landed after June 29, 1906, he must present a certificate from the Department of Commerce and Labor showing date of arrival, and the declaration of intention must be filed with the petition. ^ Senators of the United States were to be chosen by the state legislatures. The Federal System of Government 163 "when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Represen- tatives in Congress, the executive and judicial officers of a state or the members of the legislature thereof, is denied to any of the male inhabitants of such states, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebelHon, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such states"; and to the further provision that the right of citizens to vote shall not be denied or abridged by the United States or by any state on account of race, color, or pre\dous condition of servitude. Notwithstanding these provisions, a uniform manhood suffrage has not been adopted throughout the United States. In four states, women are admitted to the suffrage; in others tax, edu- cational, property, and other qualifications are imposed; and in several states we have the peculiar anomaly of foreigners, who have announced their intention of becoming citizens, being permitted to vote for state and even national officers.^ The various restrictions operate in -such a manner as to exclude thousands of adult male citizens, and they are by no means confined to the South. Massachusetts with an educa- tional test, or Pennsylvania with a tax qualification, is legally quite as liable to a reduction of representation as any southern state with a "grandfather" clause in its constitution. Never- theless, no serious attempt has yet been made to secure an en- forcement of the Fourteenth Amendment. The Republican party, although pledged in the platforms of 1904 and 1908 to an execution of the constitutional provision in question and in control of all branches of the federal government, has deemed it inexpedient to carry out its campaign promises.^ ' See Readings, p. 143, and below, chap. xxii. ^ For the Republican platform of 1908, see Readings, pp. 107 ff . Undoubt- edly there would be great difficulty in ascertaining the number of voters actually disfranchised by any qualifications. 164 American Government and Politics Jhe Supremacy of the Jtidiciary * The crowning feature of the federal system is the supremacy of the judiciary over all other branches of government in matters relating to the rights of persons and property. In no other nation, federal or centraUzed in form of government, is the high authority of declaring null and void the acts of other departments conferred upon a judicial tribunal. This judicial supremacy, says Professor Burgess, is "the most momentous product of mod- ern political science. Upon it far more than upon anything else depends the permanent existence of republican government; for elective government must be party government — majority government; and unless the domain of individual liberty is pro- tected by an independent, unpolitical department, such govern- ment degenerates into party absolutism and then into Caesar- ism." 2 It is the Supreme Court, therefore, that stands as the great defender of private property against the attempts of popular legislatures to enroach upon its fundamental privileges,. This fact has been so clearly and cogently demonstrated by President Hadley that his statements deserve quotation at length. The theoretical position of property-holders, he says, — "the sum of the conditions which affect their standing for the long future and not for the immediate present — is far stronger in the United States [than in other countries]. The general status of the property-owner under the law cannot be changed by the action of the legislature, or the executive, or the people of a state voting at the polls, or all three put together. It cannot be changed without either a consensus of opinion among the judges, which should lead them to retrace their old views, or an amendment of the Constitution of the United States by the slow and cumber- some machinery provided for that purpose, or, last, — and I hope most improbable, — a revolution. " When it is said, as it commonly is, that the fundamental division of powers in the modern State is into legislative, execu- tive, and judicial, the student of American institutions may fairly note an exception. The fundamental division of powers in the ^ See below,- chap. xv. ^ Political Science Quarterly, Vol. X, p. 422. The Federal System of Government 165 Constituticm of the IJnited States is between voters on the one hand'and property-owners on the other. The forces of democ- racy on one side, divided between the executive and the legisla- ture, are set over against the forces of property on the other side, with the judiciary as arbiter between them; the Constitution itself not only forbidding the legislature and executive to trench upon the rights of property, but compelling the judiciary to define and uphold those rights in a manner provided by the Con- stitution itself. "This theory of American politics has not often been stated. But it has been universally acted upon. One reason why it has not been more frequently stated is that it has been acted upon so universally that no American of earher generations ever thought it necessary to state it. It has had the most funda- mental and far-reaching effects upon the policy of the country. To mention but one thing among many, it has allowed the experi- ment of universal suffrage to be tried under conditions essen- tially different from those which led to its ruin in Athens or in Rome. The voter was omnipotent — within a limited area. He could make what laws he pleased, as long as those laws did not trench upon property right. He could elect what officers he pleased, as long as those officers did not try to do certain duties confided by the Constitution to the property-holders." * ^ The Independent, April 16, 1908. CHAPTER IX THE NOMINATION AND ELECTION OF THE PRESIDENT The framers of the federal Constitution intended to remove the office of chief magistrate of the RepubUc as far as possible from the passions and interests of the masses, and accordingly they provided for his election by a small body of electors chosen as the legislatures of the several states might determine. The original design has been upset, however, by the rise of poHtical parties. It is, therefore, necessary to preface a discussion of the legal provisions regarding the election of the President by a consideration of the extra-legal organization which selects the candidate for whom the electors of each party are morally bound to vote. Preliminaries to the National Convention The national convention assembles on a call issued by the national committee. A meeting of this committee is held usually five or six months before the time for making presidential nomi- nations. At this preliminary meeting, summoned by the call of the chairman, the place at which the coming convention is to be held is selected after the representatives of various cities have presented their claims, and the date for the opening of the great party assembly is fixed. When the national committee has thus decided upon the place and date of the convention, it issues a call to the party members and supporters inviting them to choose delegates and alternates, so that the party conference may be a representative body.^ On the eve of the convention, the national committee assem- bles to complete preparations. At this session, the programme of proceedings is determined upon and the temporary roll of delegates is made up from the returns. The national convention is composed of delegates from the ^ For Republican and Democratic "calls," see Readings, p. i6i. i66 The Nomination and Election of the President 167 states and territories.* Every commonwealth is allowed two ■ delegates for each of its Senators and Representatives in the | Congress of the United States/ For example, New York has two \ Senators and thirty-seven Representatives — thirty-nine in all ; — and it is entitled to seventy-eight members in the national convention. The four delegates corresponding to the represen- tation of the state in the United States Senate are known as delegates-at-large, and the others are called district delegates.* In addition to the regular delegates, there is an equal number of alternates, chosen in the same manner, and authorized to serve in case the former are prevented from attending. In prescribing the methods of electing delegates, the calls of the Democratic and Republican parties differ fundamentally. The former regards the state as the unit of representation, and leaves it entirely free to decide how the delegates shall be chosen. The Democratic delegates apportioned to any commonwealth, therefore, may be selected entirely by the state convention, or by a combination of district and state conventions.^ The Re- publican party, on the other hand, definitely stipulates that the delegates-at-large shall be chosen at the state convention and the other delegates at congressional district conventions. Special provisions are made for the territories, and for the states that prescribe nomination by direct primaries.^ The purpose of the national convention is threefold. It-V formulates the principles of the party into a platform on which / the appeal is made to the voters during the ensuing campaign./ I * The number of delegates assigned to the territories and dependencies varies from convention to convention. For example, the District of Colum- bia was allowed by the national committee four delegates in the Republican convention of 1904 and two in 1908. 2 It should be noted that according to this rule party strength is not repre- sented at all. For example, in 1904, Mississippi, in which there were only 3168 Republican voters, sent 20 delegates to the Republican convention, and Michigan, with 216,651 Republican voters, sent only 22 delegates. This, of course, helps to prevent each party from becoming sectional in character. If is partially offset by the Democratic rule requiring a two-thirds vote to nominate. Below, p. 172. ^ That is, of course, where delegates are chosen by districts. * Readings, p. 168. " See Readings, p. 161, for details as to methods of electing delegates, and below, chap, xxx, for direct primaries. 1 68 American Government and Politics It nominates candidates for the presidency and the vice-presi- dency, and appoints committees to notify both nominees. Finally it organizes a new national committee charged with carrying on the campaign and acting for the party for four years , — until the next national convention is held. i The National Convention at Work The convention usually assembles in some enormous building where the thousand delegates, and perhaps eight or ten thousand spectators, are seated. Each delegation is arranged around the banner of its state, and has a chairman to direct its part in the convention. Some of the more important delegations are accompanied by brass bands, and often carry curious symbols and transparencies. In the audience are usually gathered the most active politicians who are not serving as delegates, enthu- siastic partisans from all over the country, and interested visitors attracted by the spectacular affair. It is indeed a cool-headed politician who is not swept off his feet by the excitement of the hour. Bands play popular airs; party heroes are greeted with prolonged cheering as they appear on the scene; wire-pullers rush here and there among the delegations making and extract- ing promises; all are apparently intoxicated with enthusiasm and boisterous party zeal. The convention is called to order by the chairman of the national committee,^ and before any business is transacted, prayer is usually offered. Clergymen from different congregations are chosen for the several sessions, so as to avoid offending religious susceptibilities. The first business is the reading of the call for the national convention by the secretary of the committee, and the chairman then puts in nomination the temporary officers, who have been selected by the committee before the meeting. Usually these nominations are accepted without question, for the business of the temporary organization is largely formal. The temporary chairman, it is true, makes an address appropriate to the occasion, which is often regarded as the "keynote" to the proceedings, but he is not called upon to make any important decisions from the chair which may affect either the platform of * The order of business, of course, varies from time to time £n details, but this general description is substantially true of all conventions. The Nomination and Election of the President 169 the party or its nominations. When the temporary ofl&cers are duly installed and the speech of the chairman is delivered, the rules of the previous convention are adopted until the perma- nent organization is effected. The first day's session is then concluded by calHng the roll of the states and territories, each one of which appoints one member for each of four great commit- tees of the convention: the committee on credentials, the com- mittee on permanent organization, the committee on rules and order of business, and the committee on resolutions or platform. After the second session of the convention is called to order by the temporary chairman, the reports of the various commit- tees are heard, not necessarily in any fixed order. The committee on credentials is charged with the important work of deciding questions of contested seats. All notices of contests between delegations are filed in advance with the national committee which makes up the temporary roll. These documents relative to the several disputes are passed on to the credentials committee, 1 which holds meetings and prepares reports for the convention. Sometimes these contests are very exciting; for the poHcy of the party on national issues and the fate of candidates may be decided by the admission or rejection of certain delegations. Generally speaking, however, the report of the majority of the committee on credentials is accepted by the convention.^ The next important report is that of the committee on perma- ~1 nent organization, which names the permanent chairman, the / secretary, and other officers of the convention. This report is also generally approved without debate, but there have been occasions on which the convention has refused to accept the nominees of the committee. The permanent chairman is duly installed, makes a long speech, and is presented with a gavel. The rules, under which he controls the assembly, are reported by the committee on rules, and are, in principle, those of the House of Representatives with some modifications. The chair- man is constantly called upon to decide points of order of a highly technical nature; he must prevent the convention, which some- times bursts out into storms of applause lasting more than an hour, from degenerating entirely into an uncontrolled mob; * It sometimes happens that, to avoid open rupture, both delegations from a state are admitted — each member having one-half of a vote. 170 American Government and Politics he is often compelled to choose from among five or ten speakers trying to get the floor at the same time; and it is, therefore, im- portant that he should be master of the rules of procedure, and capable of prompt and firm decision. On the second or third day, the convention is ready for the report of the committee on resolutions, which is charged with drafting the platform. This committee begins its sessions im- mediately after its appointment, and usually agrees on a unani- mous report, but sometimes there is a minority report. The platform is not often a statement of the particular things which the party proposes to do if it gets into power; it is rather a col- lection of nice generahties which will serve to create good feehng and unite all sections around the party standard. It usually contains, among other things, references to the great history of the party, interspersed with the names of party leaders, and denunciations of the policies and tactics of the opposite party. Frequently a platform will refer to matters that do not concern American politics primarily, such as the persecution of the Jews in Russia or the struggle of Ireland for home rule. Such resolu- tions do not imply that the government can or will do anything positive on such matters, but they serve to appeal to the imagi- nation and sympathies of certain classes of voters. The report of the committee on resolutions seldom meets opposition in the convention, for care is taken by the committee to placate all elements. It is only when there is some very contentious matter, such as the free silver issue in 1896, that there is likely to be a divided report from the committee or any debate on the floor. ' After the adoption of the platform, the new national committee is chosen.* About the third or fourth day, the chairman announces that the next order of business is the caUing of the roll of the states for the presentation of names of the candidates for President of the United States, and the roll is called in alphabetical order begin- ning with Alabama. If a state has no candidate to present, it may defer to another further down on the list. This is what happened in both conventions in 1904. When Alabama was called upon in the Republican assembly, the chairman of the delegation said: "The State of Alabama requests the privilege ^ See below, p. 173. The Nomination and Election of the President 171 and distinguished honor of yielding its place upon the roll to the State of New York." A representative of the state which is thus named thereupon places a candidate in nomination, in a speech full of high-sotmding phrases and lofty sentiments.^ The first speech may be followed by speeches seconding the nomination, from the representatives of various delegations scattered over the House, if the chairman sees fit to recognize them.- The nomina- tions may be closed without calling the full roll of the states, or the calling of the roll may be resumed and each state heard from, as it is reached in regular order. When the nominations are made, the vote is taken by calling ;' the roll of the delegations, and the chairman of each announces [ the vote of his group. According to the theory of the Republican ' party, each member of a delegation may cast his vote as he pleases, although as a matter of fact the delegations are often instructed by the conventions of the states from which they come. The Democratic party, however, does not recognize the right of the individual to vote as he pleases in the convention. It not only permits the state convention to instruct its delegates, but also authorizes the majority in each delegation to determine how the entire vote shall be cast — and cast that vote as a unit.^ For example, the state of New York has seventy-eight representa- tives in the national convention, and if forty of the delegates agree on the same candidate, the vote of the entire number is cast for him. This practice, which is called the appUcation of the "unit rule," is justified by Democratic leaders on the ground thatlHe state, not the congressional district, is the unit of representation; and that greater weight is given to the delegation of a state, in negotiating with the other delegations, by reason of the fact that it can cast the entire number of votes. That is, on account of his abihty to deliver the entire vote of the New York delegation, the leader of that state, for example, is able to demand more con- sideration in the distribution of poHtical favors than if he could only deliver a portion of the vote. The unit rule, therefore, gives more power to the organization of the state than the system of allowing divided delegations. It should be noted, however, ' See Readings, p. 164, for an extract from a nominating speech. ' This is, of course, usually fixed up in advance. ^ See Readings, p. 167. 172 American Government and Politics that the unit rule is not applied to all state delegations in the Democratic convention. It is left to the states concerned to adopt or reject the principle as they see fit; but if the state does not act in the matter, the national convention applies the rule. When the roll of all the states and territories has been called, and the vote of each one has been registered by the tally clerks, the total result is announced. If any nominee in the RepubUcan convention receives a majority of all the votes cast, he is there- upon declared the candidafe of the party for the presidency of the United States. In the Democratic convention, however, it is an inflexible rule that the successful nominee must receive a majority of two-thirds — that is, out of the 1000 delegates in the Democratic convention of 1904 in St. Louis, 667 were neces' sary to a choice. If no nominee receives the requisite majority on the first ballot, the process is repeated until some one secures the proper number of votes. It is the practice of both parties, immediately after the nomination of the presidential candidate, to nominate the candidate for Vice-President in the same manner. When the convention has chosen its candidates, a separate committee is appointed to convey to each of them a formal noti- fication. Shortly afterward the notification committee waits upon the candidate, and through an official spokesman announces the will of the party. The candidate thereupon replies in a lengthy address, and sometimes follows this by a special letter of acceptance. The acceptance speech is often an important campaign document for the reason that the candidate may interpret the platform of his party in his own way, going even so far as to modify the spirit, if not the letter, of that pronuncia- mento. For example, Mr. Taft in his acceptance speech of 1908 elaborated at length the Chicago platform and committed himself personally to many doctrines which had not been specifically endorsed at the convention which nominated him. The National Committee The great work of directing the campaign is intrusted to the national committee,* composed, in the RepubUcan and Demo- cratic parties, of one member from each state and territory * In practice, the burden falls upon the officers and an executive committee of the national committee. The Nomination and Election of the President 173 chosen by the respective delegations to the national convention, and holding office for four years, that is, from one national con- vention to the next. The selection of this committee, as we have seen, is a part of the regular convention proceedings. Usually on the second or third day, after the adoption of the platform and before the nomination of the candidates, the permanent chairman of the national convention announces that the next order of business is the calUng of the roll of the states and terri- tories for the presentation of names of persons chosen to serve on the national committee. In common practice the secretary of the convention has in advance a full report of the names of the members chosen from each state and territory, and this report being read to the convention is accepted as it stands, unless objections are made from the floor. The national con- vention, as such, therefore, does not exercise any control over the choice of members of the national committee. The selection of its representative is left to each state, and is frequently deter- mined by a caucus among the party leaders in advance. The principal officers of the national committee are the chair- man, secretary, and treasurer. The chairman, who is by far the most important poUtical leader in the national organization, is the choice of the candidate for President. The wishes of the committee and other leaders of the party, are, of course, taken into consideration. This power of selecting the chairman is very important to the presidential nominee, because the immediate task of that officer is to conduct the presidential campaign, and it is essential that he and the candidate work together in complete harmony. The chairman is not necessarily a member of the original committee, for it may so happen that no prominent and energetic organizer has been chosen by the state and terri- torial delegations. The secretary and treasurer are sometimes appointed by the chairman, -and sometimes by the committee. The treasurer is often not a member of the committee; owing to his important position as collector of campaign funds, he is se- lected for his financial ability and influence from among the most available members of the party. Of course, it is impossible here to lay down any absolute rules in regard to the way in which officials of the committee are chosen, for the choice is not deter- mined under any written or unwritten law, but is left for adjust- ment according to circumstances. 174 American Government and Politics The National Campaign Immediately after the adjournment of the convention, the newly elected committee meets and proceeds with the prepara- tions for the campaign. The leadership in this great national contest is taken of course by the chairman/ who disburses enor- mous simis of money collected by the treasurer, directs the huge army of speakers, organizers, and publicity agents scattered over the Union, and as the day of election approaches surveys the whole field with the eye of an experienced general, discovering weak places in his battle array, hurrying up reinforcements to the doubtful states, and, perhaps, pouring an immense sum of money into districts where large numbers of wavering voters may be brought into line. The outcome of the campaign, therefore, depends in a great measure upon the generalship of the chairman of the national committee. ^ Quite as important as the general who leads the army in the field, is the organizer of the department which furnishes the sinews of war. Consequently, in a political campaign, the treasurer of the national committee takes a prominent place by the side of the chairman. It is his business to discover innumerable ways of raising the million dollars or more required to wage the great political contest.^ In this work he is, of course, greatly assisted by the issues of the campaign; for, when large business interests are liable to be affected by the outcome of the election, he can appeal with special force to those whose fortunes are linked to the fate of his party. It is, therefore, apparent why the treasurer of the national committee should be a financier of peculiar genius, and a man influential in wealthy circles; and for this reason an eminent business man is usually chosen to fill this high post. The campaign of 1888 affords a remarkable example of the intimate relation between the finances of a party and the in- terests affected by the outcome of the election. Moreover, a very frank statement made by the treasurer for that year, Mr. Wana- maker, gives us an insight into his reasons for undertaking the management of Republican finances, and the methods which he * Readings, p. 169. ^ According to official statements, the Republican national commit:tee raised $1,035,368.27 in 1908 and the Democratic conmaittee $620,150. The Nomination and Election of the President 175 employed.^ Mr. Wanamaker, according to his own account, had had large experience in raising money for the Young Men's Christian Association and other similar organizations; and ac- cordingly he knew how to bring arguments to bear upon large- minded men. The strong pronunciamento in favor of free trade, made by Mr. Cleveland in a message to Congress, had frightened business men engaged in industries fostered by the protective tariff, and of this situation Mr. Wanamaker was quick to take advantage. He said it was his custom to address business men as follows: ''How much would you pay for insurance upon your business? If you were confronted with from one year to three years of general depression by a change in our revenue and pro- tective measures affecting our manufactures, wages, and good times, what would you pay to be insured for a better year? " The argument was pecuharly effective, for money was raised in such large amounts that the Democrats were completely outwitted; and when election was over, the national committee, according to Mr. Wanamaker's statement, was ready to make him almost any offer. He chose the office of Postmaster-General, and en- tered the Cabinet of the President whom he had done so much to elect. A second instance of powerful support given by financial in- terests to a poHtical party is afforded by the campaign of 1896, when the question of free silver was the leading issue. Bankers, men of finance, creditors, and business men generally, believed that the adoption of free coinage of silver at the ratio of 16 to i would be absolutely disastrous to them. Accordingly, they ralUed to the support of the Republican party. On March 23, 1896, before the conventions of the two parties met, the American Bankers' Association sent out a letter to the bankers of the United States, declaring unequivocally in favor of the maintenance of the existing gold standard, and recommending to all customers of banks the exercise of all their influence, as citizens in the various states, to secure the selection of delegates to the political conven- tions of both parties, who would stand squarely in favor of the gold standard. After the conventions were held, and the two great parties were divided on the money question, a committee was appointed to » The Forum, Vol. XIV, pp. 29 fF. 176 American Government and Politics solicit funds in aid of the campaign for the Republicans. In a circular letter sent out in September, this committee stated that the banks in New York and some other places had been contrib- uting on a basis of one-fourth of one per cent of their capital and surplus; and urged other banks to follow this example, on the ground that it was proper and legitimate for the banks to make political contributions in a campaign so vital to all financial institutions.^ The actual methods employed by the parties in influencing voters vary of course from time to time; new expeciients for attracting the attention of the people are constantly being de- vised. Nevertheless, we can draw from a study of the methods of recent campaigns certain general practices which the parties adopt to accomplish their ends. , H The first important step in the campaign is the location of the [T^^^g^rty headquarters from which the contest is to be directed. IJ^ The strategic value of putting the centre of the campaign near or in the doubtful states was recognized by the Republicans in 1896, when they selected Chicago as the point from which the militant forces in the field were controlled. It is not always the rule, however, to maintain one centre, for in the campaign of 1900 the Republicans divided their national headquarters into two branches — one at New York and one at Chicago. * Since the chief work of the national committee in carrying on thb campaign is to influence the minds of the voters, its attention is given in a very systematic way to the preparation of the cam- paign literature. As soon as the issues of the campaign are pretty well settled, each party publishes a campaign text-book ^ . which usually contains the platform, notification and acceptance I speeches, biographical sketches of the candidates, statistics on I business, tariff, trusts, money, and other economic issues, ad- \ dresses by prominent leaders, papers in defence or criticism of \ the administration, and the most cogent arguments which the \ party can advance in support of its position. The campaign text-books are sent out in large quantities, not to the pubUc generally, but especially to the newspapers, speakers, and others ^ The evidence for these statements is in the Congressional Record, Vol. XL, part vi, pp. 5336 £f. In 1907 Congress passed an act forbidding corporations to make contributions to campaign funds in federal elections. The Nomination and Election of the President 177 in a position to influence voters by argument. In addition to the regular campaign text-book there is usually a text-book issued by the congressional committee ^ which contains additional in- formation on the "records" of the parties and their poHcies. These central pieces of campaign literature are supplemented by innumerable pamphlets, leaflets, posters, cartoons, and con- gressional speeches, printed in every language that is represented by any considerable number of voters. A regular bureau of print- ing and publication under the supervision of an expert directs this enormous " literary " output, which is distributed broadcast, very often through the state central committees. It was esti- mated that the Republican committee in 1896 sent out about 20,000 express packages, 5000 freight packages, and probably half a million packages by mail.^ A far more effective way of reaching the public at large is \fji^ through the newspaper. Thousands of the uninteresting docu- ments sent out by the national committee are doubtless thrown away unopened or unread, and there must be an enormous waste of this branch of the campaign work. The newspapers, however, which have regular readers, reach the public more directly; and accordingly the national committee does all that it can through the estabUshed newspapers, from the great city daily with its huge editions, down to the rural weekly with a circulation (Si five hundred printed on a hand-press. It was estimated that trfe Republican national committee, in 1896, reached five miflion families every week with newspapers containing RepubHcan ar- guments.^ ^ ^ _^^ In addition to the printed arguments addressed to the people, ^^' there are oral arguments made by campaign speakers. The national committee generally has a bureau of public speakers which prepares a list of available orators by testing applicants and drafting volunteers, and directs the speakers in the field by placing them in positions where their special talents may be most effective. These orators are of every rank, from the man with the strong voice who can harangue a crowd on the street corner, to the finished speaker whose very name will draw thousands. * See above, p. 133. ^ Review of Reviews, Vol. XIV, pp. 533 ff. ^ For this topic and an excellent account of the campaign of 1896, see Read* ings, pp. 171 fif. 178 American Government and Politics Hundreds of these speakers are directed from headquarters, and thousands of local volunteers are enlisted by state and county committees, sometimes in consultation with the authorities higher up. Itineraries are laid out, halls and bands engaged, parades organized, and every step taken to make the oratorical effort of the greatest possible effect. According to one estimate, for several weeks preceding the election of 1900, seven thou- sand Republican speeches were made every week day and night.* Sometimes the presidential candidates themselves enter the lists. Mr. Bryan, for example, in 1896, toured the United States in a private car, delivering no less than four hundred reported speeches in twenty-nine different states, thus making undoubt- edly the greatest oratorical record of any candidate up to that campaign. Sometimes the candidate does not travel about, but contents himself with remaining at home and addressing crowds that are brought from far and near on railway excursions. In this way, Mr. McKinley did effective work at his home in Can- ton, Ohio, in 1896. In 1908 Mr. Taft is reported to have jour- neyed 18,500 miles and to have made 436 campaign speeches in thirty different states; and Mr. Bryan at least equalled his first record. A very practical and indispensable part of the national com- mittee's work is the poUing of doubtful states. Early in the campaign a political census is taken of those states in which the vote has been known to vacillate from campaign to campaign, and every pains is taken to make this census complete and ac- curate by sparing no cost in selecting and paying reliable and efficient canvassers. Thus the party has a fairly accurate knowl- edge of the number of votes upon which it can rely, and also a fairly accurate list of the number of doubtful persons whose votes may be influenced by various means. With the results of this great political census of the uncertain states in its hands, the na- tional committee is very much in the position of a military staff, on the field of battle, which is acquainted with the numerical strength of the opposing army, the weak points in its equipment and defence, and the necessary lines of advance for winning vic- tory. The effective means for influencing the several categories ^ Review of Reviews, Vol. XXII, pp. 549 ff. The Nomination and Election of the President 179 of doubtful persons are immediately despatched to the scene of action. Two weeks before election day in 1896, the Republicans, fearing the loss of Iowa, made a canvass of every doubtful voter in that state, by sending a zealous and tactful Republican to each one. This detailed and effective canvass is reported to have cost over $200,000.^ It is indeed a marvellous contest that closes on the day when the ballots of more than fourteen milUon voters are cast for the presidential electors in the several states. - Casting and Counting the Electoral Votes The political activities described above — important as they are in the selection of the President and Vice-President — are wholly unknow^n to the Constitution. That document, in fact, contains but very few clauses with regard to the actual choice of the Presi- dent and Vice-President.^ In the first place it contemplates a system of indirect election: each state shall appoint, in such manner as the legislature thereof may direct, a number of electors equal to the number of Senators and Representatives to which the commonwealth is entitled in Congress. To remove the electors from any direct contact with the federal governmentj_ it was added that no Senator or Representative or a person hold- ing any office of trust under the United States should be appointed an elector. " ^ It is to be noted that the electors of each state are to be chosen as the legislature thereof may determine. In the course of our history no less than three distinct methods have been devised, (i) In the beginning, it was often the practice for the state legis- atures to choose the electors; but within a quarter of a century the majority of them had abandoned this practice in favor of popular election. {lY^here this more democratic system was adopted it was oft^ the custom at first to have two electors chosen by the voters of the state at large and the remaining electors chosen by congressional districts — thus each voter would have the right to vote for three electors, two at large and one from > World's Work, Vol. I, p. 77. ' The Tuesday following the first Monday in November was fixed by Congress in 1845. ' Readings, p. 154. 1 i8o American Government and Politics his own district/ (3) It was at length discovered that a state's in- fluence in national politics was greatly increased if all of its elec- tors could be carried by one party or the other, and consequently the system of election by district has been abandoned, in favor of election by general ticket throughout the state at large. ^ It is necessary, accordingly, for each party in each state to prepare a Hst of candidates equal to the total number of electors to which that particular commonwealth is entitled. In practice, the presidential electors are generally chosen by the state con- vention of the party, and very often the office of elector is re- garded as a titular honor to be given to distinguished citizens or to partisans wilUng to make Uberal contributions to campaign funds. On election day, therefore, the voter ^ does not vote directly for President and Vice-President, although for his information the names of the candidates of all parties appear on the ballot. On the contrary, if he votes a straight ticket, he simply votes for the entire list of electors put forward by his party. There is no point at all in splitting the vote for presidential electors, unless there is a fusion, such as existed for example in some of the western states between the Democrats and PopuHsts whereby each of the two groups was to have a certain share of the electors according to a predetermined arrangement. What happens, therefore, on a general presidential election day is the choice in each state of a certain number of presidential electors — 483 in all. Nornially the party which secures a pluraHty of votes in any state is entitled to all of the electoral votes of that state for President and Vice-President, no matter how large the minority.^ No elector would dare to break faith with the party which placed liim in nomination, and vote for the candidates of the opposite party. Consequently, the deliberative, judicial, non-partisan ' "In 1824, twenty-four states took part in the election. In six, the electors were chosen by the legislatures and in eighteen by popular vote, and of these in thirteen by general ticket and by districts in five. . . . South Carolina continued the practice of legislative appointment until i860." Finley and Sanderson, The American Executive, p. 332. ^ In 1892 Michigan temporarily reverted to the district system. See Readings, p. 157. ' On the suffrage, see*below, chap. xxii. * There have been a few instances of split electoral tickets — California and Kentucky in 1896 and Maryland in 1908, for example. The Nomination and Election of the President i8i system designed by the framers of the Constitution has been overthrown by party practice. It is sometimes held that through this party practice we have secured popular election of President and Vice-President, but if we mean by popular election, choice by majority or plurality vote throughout the United States, it has not been attained as yet. Indeed, several of our Presidents have been elected by a minority of the popular vote. Mr. Lincoln, for example, was chosen Presi- dent in 'i860 by a vote of 1,866,452 against a total of 2,815,617 polled by all of his opponents — the large opposition vote being so divided and scattered as to elect less than a majority of the total number of electors. And two Presidents, Hayes and Har- rison, did not even receive a plurality. This possible contingency of election by a minority of the popu- lar vote cast is due to the fact that when a party carries a state, no matter by how slight a margin, it secures all of the presiden- tial electors to which that commonwealth is entitled. A party, therefore, that wins, although by narrow margins, in a sufficient number of states to obtain a majority of the electors may in fact poll a smaller number of votes than the opposing party which may have carried its states by enormous majorities. The practice of giving the entire electoral vote of a state to the party that has won at the polls, even by the slightest majority, has another significant effect. It concentrates the campaign prin- cipally in the states that are counted as "close" and are Hable to swing to either party in the election. The importance of carry- ing these pivotal states leads campaign managers to employ in each of them every art of winning votes known to practical poli- tics. For example, the narrow margin of 1,149 votes in New York, in 1884, gave that state to Mr. Cleveland instead of Mr. Blaine, and changed the result of the presidential election. The Republican national chairman in the campaign of 1888, remembering the lesson of the preceding election, threw a force of detectives in New York City to check false registration and illegal voting, with results which more than exceeded his expec- tations. This concentration of the campaign in the pivotal states has many bad features, especially the lavish use of money for questionable purposes. It is a notorious fact that in the states in which the rivalry between the parties is keenest, there is the largest amount of bribery. On the other hand, the system 1 82 American Government and Politics works for " cleaner " politics in states where one party is certain to win, since no advantage can come from piling up votes. The methods by which the electors so chosen in each state shall meet and cast their votes are prescribed in the Constitution and in federal and state statutes. It is provided by federal law that the electors of each commonwealth shall convene on the second Monday of January, immediately following their appointment at such place as the legislature of the state may direct — in prac- tice, the state capital. When they have assembledj^the electors vote by ballot for President and Vice-President, "one of whom at least must not be an inhabitant of the same state with them- selves" — that is, for the two candidates, nominated by their party; and they thereupon make distinct Usts of the number of votes so cast, and sign, certify, seal, and transmit the lists to the president of the Senate of the United States. With the lists of their votes for President and Vice-President, the electors must transmit their certificates of election as evidence of their power to act — evidence of crucial importance in case of contested elections. When they have cast their votes and transmitted their documents according to law, the electors have performed their whole duty. They are not paid by the federal government, but are regarded as state officers, and must look to the state legislature for remuneration for their services.^ The counting of the total electoral vote polled throughout the United States ^ begins in the Hall of the House of Representatives on the second Wednesday in February, following the meeting of the electors in their respective states. It is conducted in the presence of the Senate and the House of Representatives with * Readings, p. i6o. ^ The constitutional clauses relative to counting the electoral vote do not provide for cases of disputed returns from the several states, and in 1876 a grave crisis arose on account of frauds and irregularities in several of the commonwealths. The Senate was Republican and supported the Republican candidate, Mr. Hayes; and the House was Democratic and favored the Demo- cratic candidate, Mr. Tilden. A deadlock occurred and Congress found a way out by creating an electoral commission of five Senators, five Represent tives, and five Supreme Court Justices. On all important matters the eigl Republicans on the commission voted together, and declared Mr. Hayfl elected. See P. L. Haworth, The Disputed Election. In 1887 Congress, an act, provided for settling such disputes. For the details, see the act in Stai wood, Presidential Elections, p. 453. The Nomination and Election of the President 183 the president of the Senate in the chair. Two tellers are ap- pointed by the Senate and two by the House of Represen- tatives. The certificates and documents are opened by the president of the Senate, taking the states in alphabetical order beginning with Alabama, and thereupon handed to the tellers who read the same and list the votes. The candidates having the greatest number of votes for President and Vice-President respectively, if such number be a majority of the whole number of electors appointed, are declared duly elected. Except in cas6 x of a contested election, this count is, of course, merely an im-^ )^ pressive formality, for the result is ordinarily known three months before. In case no candidate for President receives a majority of all the electoral votes cast, the House of Representatives thereupon chooses the President by ballot from the three candidates who have received the highest number of votes. It should be noted, however, that, in selecting the President, each state represented in the House is entitled to only one vote; a quorum consists of the members from two- thirds of the states; and a majority of all the states is necessary to choice. Accordingly, the vote of each state for the presidential candidate must be determined by the majority of the Representatives of the Commonwealth in the House. In case of the failure of the House to choose a President (whenever the election devolves upon that body) before the fourth of March following, it becomes the duty of the Vice-President to act as President. There have been only two instances of presidential elections by the House of Representatives — Jefferson in 1801 and J. Q. Adams in 1825. This is due, of course, to the fact that we have two great political parties somewhat equally balanced. If the voters were broken into several parties the election would almost invariably devolve upon the House. Whenever no candidate for Vice-President receives a majority of all the electoral votes, the election is thrown into the Senate, and the Senators voting as individuals must choose the Vice- President from the jtwo candidates having the highest number jof votes. Two- thirds of the whole number of the Senators con- stitute a quorum for this purpose, and a majority of the whole number is necessary to a choice. The qualifications for President are stated in the Constitution. 184 American Government and Politics He must be a natural-bom citizen, at least thirty-five years old, and must have been fourteen years a resident within the United States. The same qualifications apply to the Vice-President, The term is fixed at four years, and so far as the Constitution is concerned, the President or Vice-President may be reelected indefinitely.^ To these constitutional requirements, a third has been added by political practice: no person is eligible to the office of Presi- dent for more than two terms, at least, in succession. Tliis "third term doctrine," as it is called, is supposed to rest upon the example set by Washington in declining reelection at the expira- tion of eight years' service. Tradition has it that Washington acted on principle, but this seems to have slight historical foun- dation.^ He did not share Jefferson's decided ideas on rotation in office, and there is apparently no reason for believing that he objected to a President's serving three terms or more. In fact, his farewell address is filled with reasonable excuses why he in particular ought not to be charged with lack of patriotism or neglect of duty in refusing to serve for another term. Jefferson originally beUeved that the President should have been given a seven years' term, and then made ineligible for reelection.' Later, however, he came to the conclusion that service for eight years with the possibility of removal at the end of four years was nearer the ideal arrangement. He, accordingly, followed the example set by Washington, and thus the third term doctrine early received such high sanction that it became a political dogma almost as inviolable as an express provision of the Constitution. * In case of the death or resignation of the President, the Vice-President succeeds. By statute Congress provided, in 1886, that in case of the death or resignation of both the President and Vice-President the following officers shall serve, in the order mentioned: Secretary of State, of the Treasury, of War, the Attorney-General, the Postmaster-General, the Secretary of the Navy, and of the Interior. 2R. S. Rantoul, in The Essex Institute Historical Collections, Vol. XXXVII, p. 321 (1901). ' Readings, p. 70. The Nomination and Election of the President 185 The Inauguration It was formerly the practice for Congress, after having made the official count, to select a committee for the purpose of notify- ing the new President of his election, but this was not uniformly followed, and has now been abandoned altogether. Curiously enough no official notice whatever is given to the President-elect. He is supposed to be sufficiently aware of the fact himself, and on the fourth of March he appears to take the oath of office. He usually arrives in Washington a few days before, and calls upon the retiring President, to pay his respects. On the day of inaugu- ration, the President-elect, in charge of a committee on cere- monies, is conducted to the White House, whence, accompanied by the President, he is driven to the Capitol. Unless the weather prevents, the oath of office, administered by the Chief Justice of the United States, is taken in the open air upon the platform built for the special purpose at the east front of the Capitol.^ Following the example set by Washington, it is the practice of the President to deliver an inaugural address setting forth his policy. After the administration of the oath of office, the new President is driven back to the White 'House, where, from a re- viewing- stand, he surveys a long procession, which is usually hours in filing past. As soon as the new President has been installed, he is confronted with the problem of selecting his Cabinet and of filUng a large number of minor places which are either vacant or whose occu- pants are ousted for one reason or another.^ It is quite common for the President to select for the post of Secretary of State the member of his party who is generally deemed to be next to him- self in the esteem of the country. For example, Mr. Lincoln called to the State Department Mr. Seward, who had been his chief rival for nomination at the convention of i860 in Chicago. Sometimes the new President rewards with Cabinet positions the men who have been especially prominent in securing his election. For example, Mr. Harrison appointed Mr. John Wanamaker, who had been treasurer of the Republican campaign * If the weather prevents the open-air ceremony, the oath is taken in the Senate chamber. ^ Of course, many appointments are decided upon long before inauguration. 1 86 American Government and Politics committee, to the office of Post master- General; and Mr. Taft rewarded with the same office Mr. Hitchcock, who was chairman of the national committee during his campaign. Though as a rule the President confines his appointments to members of his own party, he sometimes chooses members of the opposition who have been lukewarm in their poHtical activity. Furthermore, in making appointments to Cabinet positions the President usually attempts to have the different parts of the country fairly well represented. In all cases, he is supposed to select men with whom he can work harmoniously and who are willing to carry out the main lines of his policy. While the Cabinet officer's nomination must be confirmed by the Senate, as a matter of practice, the Senate always accepts the President's selection, so that in a very peculiar sense the Cabinet may be regarded as his personal retinue on whom he can depend for cooperation and advice in making his administration successful. CHAPTER X THE POWERS or THE PRESIDENT The functions of the President are prescribed by the Consti- tution, but his real achievements are not set by the letter of the law. They are determined rather by his personahty, the weight of his influence, his capacity for managing men, and the strength and effectiveness of the party forces behind him. As chief executive, he operates through a vast and complicated official hierarchy centering at Washington and ramifying throughout the great American empire and even into foreign countries through the diplomatic and consular services. As poKtical leader he may use his exalted position to appeal to the nation — to sectional, class, or group interests; he may use his veto power against laws passed by Congress, he may agitate by means of his messages, and he may bring pressure to bear in Congress and within his party through the discriminating use of the federal patronage. Thus it happens that we do not have the whole office of President before us when we are in the presence of the Constitution and statutes of the United States. The President as Director of the Administration The President is the head of the national administration. It is his duty to see that the Constitution, laws, and treaties of the United States, and judicial decisions rendered by the federal courts are duly enforced everywhere throughout the United States. In the fulfilment of this duty, he may direct the heads of departments and their subordinates in the discharge of the functions vested in them by the acts of Congress. The exact degree, however, to which he may control an administrative officer is frequently a subject of pohtical controversy, and cannot be set down with precision; it depends more upon the personality of the President than upon any theories of constitutional law.^ ' The President's power of direction is a product of historical development. It does not necessarily inhere in the Constitution. This power, according to Professor Goodnow, is "hardly recognized, m the Constitution. The only 187 1 88 American Government and Politics Some of the departments, however, are made more directly subject to the President's control than others. For example, the Secretary of State, in the conduct of foreign affairs,^ is com- pletely subject to the President's orders; and the Attorney- General must give an opinion or institute proceedings when required. On the other hand, when the Treasury was organized in 1789, it was definitely understood that Congress had a special control over the administration of that Department.^ The Supreme Court has held that the President is bound to see that an administrative officer faithfully discharges the duties assigned by law, but is not authorized to direct the officer as to the ways in which they shall be discharged.^ Nevertheless, the President has the power to remove the head of a department who refuses to obey his orders, and it is, therefore, rather difficult to see why, in actual practice, he cannot determine, within the lines of the statutes, the general policy to be followed by that officer. When President Jackson wanted the government funds withdrawn from the United States Bank, he removed two Secre- taries of the Treasury, and finally appointed a third who was known to be subservient to his will. He had his way in the end. The President also possesses a large ordinance power j— that is, authority to supplement statutes by rules and regulations provisions from which it may be derived are those which impose upon him the duty to see that the laws be faithfully executed, and permit him to ' require the opinion in writing of the principal officer in each of the executive depart- ments upon any subject relating to the duties of their respective offices, but perusal of the early acts of Congress organizing the administrative sys- tem of the United States will show that the first Congress did not have the idea that the President had any power of direction over matters not political in character. . . . The act organizing the Treasury Department contains no reference to any presidential power of direction. It simply says that the Secretary of the Treasury shall generally perform all such services relative to the finances as he shall be directed to perform, and the context shows that reference is made to the direction of Congress, not to that of the President. . . . The result of our national administrative development has been thus a great enlargement of the American conception of the executive power." Princi- ples of the Administrative Law of the United States, pp. 77 flf. For another view of the President's administrative power, see Readings, p. 177. ' Readings, p. 200. * See below, p. 210. ' This was an early case; Kendall v. United States, 12 Peters, 524 (1838). It is doubtful whether this view would be taken to-day. The Powers of the President 189 covering matters of detail sometimes of very great importance. Among other things, he makes rules for the army and navy, the patent ofl&ce, the customs, internal revenue, consular and civil services. Sometimes he issues these rules in accordance with provisions of the statutes and sometimes under his general execu- tive power. Many of the army regulations he promulgates as commander-in-chief. When he makes rules for the civil service, he acts under specific provisions of the civil service law. Thus under his power to remove, to see to the faithful execution of the laws, and to issue ordinances, the President enjoys an adminis- trative authority of no mean dimensions.^ As chief executive the President may instruct the Attorney- General to institute proceedings against any one suspected of violating federal law, and in case of open resistance he may employ the armed force of the United States. Laxness or severity in law enforcement is, therefore, largely within his discretion. The Power of Appointment and Removal In connection with his administrative functions, the Presi- dent may nominate a large number of federal officers. This is important from the point of view of politics, as well as administration. When considered in relation to the manner of their selection, the civil authorities of the United States — other than the President, Vice-President, presidential electors. Senators and Representatives — fall into two groups: (i) those officers whose appointment is vested by the Constitution or* by act of Con- gress in the President and Senate; and (2) those " inferior " officers, estabUshed by law, whose appointment is vested by Congress in the President, the courts of law, or the heads of departments.^ The first group embraces most of the important subordinate officers of the federal government, — the heads of departments, most of the bureau chiefs, judges of the inferior federal courts, many commissioners, such as the civil service and interstate commerce commissioners, revenue officers, and postmasters in ' Fairlie, National Administration, pp. i6 ff. ^ Each house of Congress, of course, controls the^appointment of its own officers — except the presiding officer of the Senate. 190 American Government and Politics large cities and towns. Taken together, they constitute an official army, whose salaries aggregate more than $12,000,000 a year. In filling these positions, the President and Senate are not hampered by any rules regarding qualifications; and as most of these officers hold for a term of four years, either under the Tenure of Office Act of 1820^ or by other acts or practice, their appointment gives to each incumbent of the presidential office the disposal of an enormous amount of patronage. The right of Congress to determine what is an " inferior " ofiice has never been questioned, but no very consistent rule has been adopted in this matter. A few bureau chiefs of great importance — principally in the Department of Agriculture — are " inferior " officers in the view of the law because their appointment is vested in the President or in the head of the department. On the other hand many bureau chiefs are appointed by the President and Senate. The Librarian of Congress is appointed by the President alone; and the great horde of clerks and minor officers are chosen by heads of departments. The offices to be filled by the President and Senate may be divided into groups according to the degree of freedom which the President enjoys in making his own selections.^ I. Members of the Cabinet, that is, heads of departments, are usually the President's personal selection, although in this matter he is often controlled by preelection promises or by obligations incurred in engaging the active support of certain prominent men in his party. At all events, the Senate, even when it is in the hands of an opposition party, does not seek to control the ap- pointments to these offices; it usually ratifies the President's nominations promptly and without objections. The choice of ^ Congress, by this act passed in 1820, fixed the term of a large number of federal officers at four years subject to the President's removal power. The officer holding one of these positions is not guaranteed a four-year term, but jnayiaeremaved-by the President at will. Finley and Sanderson, The Amer- ican Executive, p. 258. Federal Judges, of course, hold ofl&ce during good behavior. 2 It should be noted that, under the Constitution, the President may fill vacancies occurring during a recess of the Senate by granting commissions which expire at the end of the next session of that body. See Ford, Rise and Growth of American Politics, p. 290. The Powers of the President 191 diplomatic representatives is also left largely to the President's discretion, as far as the Senate is concerned; although he often has many party obligations to consider in this connection. Military and naval appointments, especially in times of crisis, are principally subject to presidential control, but political in- fluences are by no means wanting here. It is not often that the Senate interferes with appointments to the Supreme Court. ,. 2. A second group of offices, ^ttedrbyHie President and Senate, is largely subject to the control of the Senators, as a result of the practice known as '' s enatorial courtesy^" ^ Under its power to advise and consent, "the Senate does not officially attempt to suggest nominations to the President, but by a custom which has grown up, it willonly ratify appointments which are approved by the Senators (of the President's party) from the state in which the offices in question are located. If, however, they are located in a state not represented by a Senator of the same party, the President is freer to act.^ Thus it happens that appointments to federal offices within a state represented by members of the President's party are ^nerally made by the Senators, or by the senior Senator, if he is the stronger of the two. This is not always the case, however. For example. President Garfield refused to place before the Senate certain candidates for federal offices in New York suggested by Senators Piatt and Conkling of that state. The Senators, feehng that their rights had been infringed by this executive action, thereupon tendered their resignations, but on asking for vindication by the New York legislature failed to be reelected. Here again, it is not a matter of formal rule, but of time and circumstance — of the character of the President, Senators, and appointees in question.^ 3. A third group of offices filled on presidential nomination is composed of minor positions within congressional districts, such as postmasterships in the smaller cities and towns. It has be- come a settled custom to allow the Representative, if he is of the President's party, to name the appointees of his district; but if ^Readings, p. 212. These officers include revenue collectors, postmasters in large cities, customs officers, judges of inferior courts, district attorneys, etc. ^ If there is no Senator or Representative from a state, belonging to his party, the President consults party leaders in the state in question. * On this see Reinsch, American Legislatures, pp. 87 fif. 192 American Government and Politics he is not of the President's party the patronage goes to the Senator or Senators, as in the case of offices within the second group. Mr. Bristow, the Fourth Assistant Postmaster-General, recently- testified that when there was a vacancy in a post-office, the ad- ministration in power would send a request, upon a printed blank, to the member representing the district, if he was in political sympathy with the President's party, asking for the recommen- dation of some one to fill the place.^ The advice of the member is not binding, however, if the character or fitness of his nomi- nee is not satisfactory to the government. This patronage-is of considerable political importance, and in most states it is used in connection with the local party organization.^ Thus local ^ H. R. Reports, 58th Cong., 2d Sess., No., 2372, p. 7, Speaking of this necessity of the President's reliance on the recommendations of members of Congress, President Taft said : "A member of a community remote from the capital . . . wonders that a President^ with high ideals and professions of a desire to keep the government pure and have efficient public servants, can appoint to an important local office a man of mediocre talent and of no particular prominence or standing or character in the community. Of course the President cannot make himself aware of just what standing the official appointed has. He cannot visit the district; he cannot determine by personal examination the fitness of the appointee. He must depend upon the recommendations of others; and in matters of recommendations, as indeed of obtaining office, it is leg muscle and lack of modesty which win, rather than fitness and character. The President has assistance in making his selection, furnished by the Congressmen and Senators from the locality in which the office is to be filled; and he is naturally quite dependent on such advice and recommendation. He is made more dependent on this because the Senate, by the Constitution, shares with him the appointing power; , . . practically because of the knowledge of the Senators of the locality, the ap- pointing power is in effect in their hands subject only to a veto by the Presi- dent." Four Aspects of Civic Duty, p. 98. ^ The way in which this system may work out is finely illustrated by this despatch from Washington, printed in the New York Evening Post, of Decem- ber 18, 1909: "Senator Albert J. Beveridge of Indiana is one of the busiest men in Congress this winter. In the last Congressional election all but two of the thirteen Congressional districts in Indiana went Democratic, and a Democrat was elected Senator, so that Mr. Beveridge has control of the patronage of eleven Congressional districts, as well as of the general pat- ronage of the entire State. All told, the Senator expects to dispose of about 200 jobs this winter, ranging in importance from postmaster to two col- lectors of internal revenue. " Realizing his responsibility, the Senator held conferences in many parts of the state before coming to Washington, with a view of ascertaining the wishes of the people most affected. It has been generally supposed that the Senator The Powers of the President 193 influences make their way upward into the federal administration and give a certain amount of autonomy in a highly centralized system. This task of selecting appointees is usually a very vexa- tious one for the member, for he finds it difficult to please all of his constituents, and sometimes makes more enemies than friends by his appointments. The power of removal, so indispensable for the conduct of an efficient^ administration, has been one of the controverted points of our constitutional law, but it seems now to have been settled with a fair- degree of definiteness. The Constitution makes no provision for removal except by way of impeachment, but this is too cumbersome a process to be used often, especially for minor places. It was, therefore, early agreed that the right of removal was constitutionally inherent in the right to appoint,^ and that the President, without consulting the Senate, could remove the officers whom he nominated. This principle was ac- cepted until 1867, when Congress, then engaged in a bitter contro- versy with President Johnson, passed the Tenure of Office Act pro- viding that the President must secure the consent of the Senate in making removals. This law, however, was later modified, and in 1887 repealed altogether, so that the former principle seems to be restored, namely, that the President can removed all officers whom he appoints or nominates"m the executive branch of the govern- ment. The President can even remove before the expiration of the term for which an officer is appointed, and i ^ i^pt r equired to assign any causes at all for his action.^ -^^ would build up a political machine of his own in making these appointments, but the fact is he is retaining many of the old appointees of the Fairbanks organization in oflSce. His friends are beginning to wonder whether Bever- idge is playing into the hands of his enemies in his own party, or has won over the old machine to himself." ^ So at least many publicists put it, but in strict accord with this principle the Senate should share in removal inasmuch as it shares in the right to appoint. The principle is vague but the practice b certain: the President may remove his appointees. ' Readings, p. 197. The federal judges, of course, hold ofl&ce during good behavior and can be removed only by impeachment. 194 American Government and Politics The War Powers of the President The President is commander-in-chief of the army and navy and of the state miUtia when called into the service of the United States. He holds this power in time of peace as well as in time of war. The equipment of the army and navy and the right to declare war, however, belong^to Congre^s^, and it is not possible to say just how far into the actual direction of the forces Congress may go under its constitutional authority. Some pubHcists have even contended that Congress can provide that a particular offlcer shall be assigned by the commander-in-chief to a particular division, or that in case a regiment or company has been de- spatched to a certain point by presidential order. Congress can countermand the order.^ If this is true, it is difficult to see why Congress might not in a slow and cumbersome way practi- cally direct the conduct of a campaign. However, it is contended, on the other side, with more reason, that the/ power of Congress . ends with providing and maintaining the army and navy and de- claring war; and that the entire command of the military and naval forces is vested in the, President, whose guidance, under the Constitution, is the law of nations and the rules of civiHzed war- fare.^ ' The !t*resident appoints all military and naval officers by and with the advice and cons ent of the Senate^-;— excegi "iriilitia officers who are. appointed by the respective states, — and in :time^of war he may rem^^ them' at w ill. In time of peace, however, they are removed by court martial. "(t\n)he President is not Umited in the conduct of war to the direction' of the armed forces; he may do whatever a com- mander-in-chief is warranted in doing under the laws of war to weaken and overcome the enemy. It was under this general authority, inherent in his office, that President Lin- • coin, during the Civil War, suspended the writ of habeas corpus in states that were not within the theatre of the armed conffict.^ It was under this authority that he aboUshed * Reinsch, Readings, p. 22. ^ See below, chap, xvii; and Readings, pp. 184 and 308 ff. ^ The courts have held that Congress has the power to suspend the writ of habeas corpus, but Congress has conferred it on the President. The Powers of the President 195 slavery in many of the states; arrested and imprisoned arbitrarily those charged with giving aid and comfort to the Confederacy; estabhshed a blockade of southern ports; and, in short, brought the whole weight of the North, material and moral, to bear in the contest. Greater military power than was exercised by President Lincoln in the conduct of that war it would be difl&cult to imagine.^ Under his war p ower, the President may govern conquered ter- ritoryi^point officers there, make laws and ordinances, lay and collect taxes of all kinds, and, in short, exercise practically every sovereign right, until Congress has acted. One limitation has been laid on this power by the Court; it was held that, after the ratification of the treaty with Spain, Porto -Rico and the Philip- pines became a part of the United States within the meaning of the revmue~act"s7so lfiat~duties could not be laid by^ executive order on goods passing from those isFands to the United States or vice versa. The President may use armed for ges in carry ing into execur tion the TederalTaw against resistance that cannot be overcome by ordinary civil process. The United States, under the Consti- tution, guarantees to each commonwealth a repubhcan form of government, and protects it against invasion, and, on application of the legislature or of the executive (if the legislature is not con- vened), against domestic violence. By act of Congress, the Pres iden t is authorized to call forth the mihtia when aid is asked in due form by the authorities of a state strugghng against an in- surrection. It is by statutory law also that the President is empowered to use the militia 'or the army and navy whenever, by reason of obstructions, assemblages, or rebellion, it -becomes im- practicable, in his judgment, to enforce federal law within any state or territory by the ordinary course of judicial procedure. It was under this authority, and his general obligation to see to the faithful execution of the law, that President Cleveland used federal troops during the Chicago strike.^ ^ Readings, p. 69; see below, chap. xvii. ^Readings, p. 317. 196 American Government and Politics The President and Foreign A fairs The President is the official spokesman of the nation in the conduct of all foreign affairs/ and he is primarily responsible for our foreign policy and its results. It is true, however, that he is controlled in some matters by the Senate and in others by Con- gress. The Senate must confirm his nominations to diplomatic and consular positions, and must approve his treaties, and Con- gress alone can create diplomatic and consular positions and pro- vide the salaries attached to them. Congress must also, in many cases, make provision for the execution of treaties, but it has no right to estabUsh and conduct relations with any foreign power independently of the President. Under the Constitution, the President appoints ambassadors, other public ministers, and consuls, subject to the confirmation of the Senate; he makes treaties with the consent of two-thirds of the Senators present; and he receives ambassadors and public ministers from foreign countries;^ but his authority is not lim- ited to the formal letter of the law. He may do many things that vitally affect the foreign relations of the country. He may dismiss an ambassador or pubUc minister of a foreign power for political as well as personal reasons, and, if on the formey- ground, he might embroil the country in war. His power to re- ceive any foreign representative authorizes him to recognize the independence of a new state, perhaps in rebellion against its former legitimate sovereign,^ and thus he might incur the risk of war. He" may order a fleet or a ship to a foreign port under circumstances that may provoke serious difficulty; the ill-fated battleship Maine was sent to the harbor of Havana by President McKinley at a time when it was regarded by many Spaniards, though not officially, as an unfriendly act. The result all the world knows. As commander-in-chief of the army he might move troops to such a position on the borders of a neigh- boring state as to bring about an armed conffict. A notable in- stance of such an action occurred in the case of the opening of the * Readings, p. 183. ^ See below, chap. xvi. ^ For example, Mr. Roosevelt's recognition of the republic of Panama in revolt against Colombia. The Powers of the President 197 Mexican War, when President Polk ordered our troops into the disputed territory, and, on their being attacked by the Mexicans, declared that war existed by act of Mexico. Again, in his message to Congress the President may outline a foreign policy so hostile to another nation as to precipitate diplomatic difficulties, if not more serious results. This occurred in the case of the Venezuelan controversy, when President Cleveland recommended to Congress demands which Great Britain could hardly regard as anything but unfriendly. The^President may even go so far as to make "executive agree- ments ".with foreign powers without the consent of the Senate. The Constitution requires that only " treatie^^ shall be confirmed by the Senate, and long practice has shown cbnclusively that this term does not cover every sort of an international arrangement which may be made.^ Every adjustment of a minor matter with a foreign country is an agreement. A German who is a naturalized citizen of the United States returns to his native country, and his former sovereign calls upon him to render military service; a dip- lomatic discussion of the case arises, and it is finally settled by an exchange of notes between the Secretary of State and the German Government; this is clearly an "international agreement." The Une between a treaty and an executive agreement is diffi- cult to draw; but the character of the power which the President can wield under his right of making such agreements is well illustrated by Mr. Roosevelt's action with regard to Santo Do- mingo. In January, 1905, he drafted a treaty with the govern- ment of the republic to the effect that the United States would maintain the integrity of that country, supervise the administra- tion of its finances, make provisions for the settlement of foreign claims, and generally assist in keeping order there. The Senate, however, refused to ratify this treaty; and the President there- upon secured from the Dominican government the appointment of American citizens to supervise the finances; made provision for the deposit of a certain portion of the republic's revenues for the benefit of foreign creditors; and sent American battleships to the ports of that country. In short, he carried out the main terms of the agreement without senatorial approval, and his policy was * J. B. Moore, "Treaties and Executive Agreements," Political Science Quarterly, Vol. XX, pp. 385 ff.; also International Law Digest, Vol. V, p. 210. igS American Government and Politics severely criticised by the opposition in the Senate. "The treaty has been practically carried into effect without consulting the Senate," contended Senator Ra3aier. "The appointment of an American agent as an official of Santo Domingo to collect its customs was simply a cover and an evasion. Under the principles of international law and the comity of nations, this government is morally bound for the proper custody of this fund, and would be liable in case of its waste or loss. , . . Now when you add to this the fact that our warships are in the harbors of the island os- tensibly for the purpose of protecting American interests, but in reahty protecting the officials of the island against any menace froni without and revolution from within, you have the estabhsh- ment of a sovereignty or a protectorate without a word from Congress or the Senate sanctioning the same." ^ It is evident that the President, under his unquestioned authority to make executive agreements, might go to great lengths and make ar- rangements with a foreign power far more serious in character than is often stipulated by formal treaty. Nevertheless, in this matter as in many other matters of government, time and cij[z; cumstance must determine. . The President, in addition to his administrative duties, enjoys the power to grant reprieves and pardons (except in cases of im -^ peachment) for offence s aga inst the United States. No liniit-s are imposed on his exercise of this power, and therefore it may be used as he sees fit. He may remit a fine, commute a death sentence to a term of imprisonment, or free the offender alto- gether; but when forfeiture of office is one of the penalties imposed, he cannot restore the offender to his former position. Though the usual process is to pardon after conviction, a pardon may be granted before or during trial. In the exercise of his power of pardon, the President relies, of course, largely upon the opinions of others. The application for executive clemency, with all the papers attached is sent to the Attorney-General, in whose department there is a pardon-clerk in charge of the prehminary stages. Usually the judge and dis- trict attorney under whose supervision the case was first tried are asked to make any statement they may choose about the merits of the case. The Attorney-General endorses on the apph- ^ Reinsch, Readings, pp. 79 flf., for a full discussion of this important point. The Powers of the President 199 cation his opinion as to what course of action should be pursued, and the papers are then sent to the President for final determina- tion. "If the trial seems to have been fairly conducted," said President Harrison, "and no new exculpatory evidence is pro- duced, and the sentence does not seem to have been unduly se- vere, the President refuses to interfere. He cannot weigh the evidence as well as the judge and jury. They saw and heard the witnesses, and he has only a writing before him. It often happens that the wife or mother of the condemned man comes in person to plead for mercy, and there is no more trying ordeal than to hear her tearful and sobbing utterances and to feel that public duty requires that she be denied her prayer." ^ The President and Legislation^ The President's position as chief executive officer is so exalted and the powers of that place are so extensive, that his functions as a legislator, both constitutional and customary, are often lost sight of by commentators. He is required by the Constitution to give to Congress from tirrieto time information of the state of the Union and to recommend such measures as he may judgp necessary and expedient. In the exercise of this function,^ ^ ^ may recommend laws and even draw bills, which Congress wilW ingly accepts, or which it accepts reluctantly under tlie feeling that the President has the support of his party throughout the country, or wh ich it modifies or rejects altogether if it disapproves. ■-v_ The message is the one great public document of the United States which is widely read and discussed. Congressional de- bates receive scant notice, but the President's message is printed almost in extenso in nearly every metropolitan daily, and is- the subject of general editorial comment throughout the length and breadth of the land. It is supposed, though often erroneously, to embody in a very direct sense the policy of the presidential party; it stirs the country; it often affects congressional elec- tions; and if its recommendations correspond with real and positive interests of sufficient strength, they sooner or later find their way into law. * Harrison, This Country of Ours, pp. 146 ff, ^ Readings^ pp. 194 and 265. 200 American Government and Politics There ought to be no cavil about the President's frequent and considerable use of the power to give information to Congress. "From the nature and duties of the executive department," says Story, "h^ must possess more extensive sources of infor- mation as well in regard to domestic as to foreign affairs than can belong to Congress. The true workings of the laws, the defects in the nature or arrangements of the general systems of trade, finance, and justice; and the military, naval, and civil estab- lishments of the Union are more readily seen, and more constantly junder the review of the executive, than they can possibly be of any other department. There is great wisdom, therefore, in not merely allowing, but in requiring the President to lay before Congress all facts and information which may assist their de- Hberations; and in enabling him at once to point out the evil and suggest the remedy. He is thus justly made responsible, not merely for a due administration of the existing systems, but for due diligence and examination into the means of improving them." ' Of course, it may be questioned whether, in these days of swift communication of thought and argus-eyed journalists, there is very much in the President's message, that is new to Congress; and moreover, a great deal of the work of fitting legislation to conditions is done either by special or regular committees sup- posed to be more or less expert in the branches of legislation intrusted to their charge. Nevertheless, there can be no doubt about the advisability of a close association between those who make and those who enforce the laws. Especially is this true since the President is the only officer of the national govern- ment who represents the national party as a whole, and it is to him that the country looks for results in administration — results which can only be brought about by his cooperation with his party in Congress. The presidential message, at the opening of Congress, was delivered in person to the Senate and House in joint assembly by Washington and Adams; but this was abandoned by Jeffer- son.^ From that time forward the practice has been to commu- nicate by means of written messages. ^ Commentaries (5th ed.), Vol. II, p. 382. Readings, p. 192. The Powers of the President 20 1 The presidential message is very often not the work of the President alone, and there are notable instances of its being principally the work of some one else. In every case, especially of the message prepared for the opening session of Congress, the information contained in the document is largely furnished by the various departments. The President treats the material sent to him by the respective officers as he sees fit, sometimes taking out paragraphs, sometimes condensing, sometimes using it merely as the basis for his own conclusions.^ Some of President Roosevelt's special messages were founded on the reports of commissions, and were accompanied by handsome illustrations; others were his own work, prepared primarily to promulgate his own views with regard to some particular topic which he wished to make of public interest. The treatment which the President's recommendations receive, of course, varies according to circumstances. They may be accepted, because Congress feels that they are sound in principle or because there is an effective demand for them in the country; or they may be accepted because the President by his party leadership, or personal favors, or use of patronage can bring the requisite pressure to bear on Senators and Representatives to secure their passage. The power of vetoing measures of Congress, like that of send- ing messages, possesses a legal and a practical aspect. Every_ bill or joint resolution must be presented to the President; if he signs, it becomes a law; if he disapproves, he must return it to the house in which it originated, with a statement of his objec- tions; and the house must, thereupon, reconsider it. A two- thirds vote of both houses is sufiicient to carry the measure over the executive veto. The same procedure is applied to orders, repolutions, and votes to which a concurrence of both houses is necessary, excepting questions of adjournment.- , If the President fails to return a measure within ten days (Sundays excepted) after it is presented to him, it becomes a law without his signa- ture, unless Congress prevents its return by adjourning, in which * Reinsch, Readings, p. 8. ^ In practice "concurrent resolutions" are not submitted to the President. See below, p. 290. In practice also amendments to the federal constitution are not submitted to the President. Burgess, Political Science and Constitu- tional Law, Vol. I, p. 148. 202 American Government and Politics case it doesjiot^ecome a law. When Congress adjourns leaving many bills to be signed, the President may suppress quietly the bills to which he entertains objections; and this is known as the " pocket veto." ^ ^-^ "' The President does not veto single items in appropriation bills, and Congress has attached other measures — disapproved by the President — to appropriation laws, and thus forced his signature. This practice of attaching " riders " is somewhat discredited, and is seldom employed. The veto power, in Hamilton's view, was conferred on the President because of the propensity of the legislative department to intrude upon the rights and absorb the powers of the other departments, and also because of the necessity of furnishing the executive with a means of defending his constitutional preroga- tives. But he added, "The power in question has a further use. It not only serves as a shield to the executive, but it fur- nishes an additional security against the enaction of improper laws. It establishes a salutary check upon the legislative body, calculated to guard the community against the effects of faction, precipitancy, or of any impulse unfriendly to the public good, which may happen to influence a majority of that body. . . . They will consider every institution calculated to restrain the excess of law-making, and to keep things in the same state in which they may happen to be at any given period, as much more likely to do good than harm; because it is favorable to a greater stability in the system of legislation. The injury which might be done by defeating a few good laws will be amply compensated by the advantage of preventing a number of bad ones." ^ 0n the question of exercising the veto, different views have prevailed. Jefferson contended: "Unless the President's mind, on a view of everything which is urged for and against the bill, is tolerably clear that it is unauthorized by the Constitution — if the pro and con hang so even as to balance his judgment — a just respect for the wisdom of the legislature would naturally decide the balance in favor of their opinion."^ General Taylor held^ that the veto power should never be exercised "except in ^ Readings, p. 187. ^ The Federalist, No. LXXIII. ^ Quoted in Lincoln, Works, Vol. II, p. 61. */i>Ki., Vol. II, p. 61. The Powers of the President 203 cases of clear violation of the Constitution, or manifest haste and want of consideration by Congress." President Jackson, however, whose relations to Congress were quite different from those of either Jefferson or Taylor, had his own opinion of what the Constitution was, and alleged unconstitutionality as one of the grounds for vetoing the Bank Bill, although such an insti- tution had been declared constitutional by the Supreme Court.^ In vetoing a bill, President Grant assigned as his reason the fact that it was "a departure from true principles of finance, national interest, national obligations to creditors, congressional promises, party pledges (of both political parties), and personal views and promises made by me in every annual message sent to Congress and in each inaugural address." Mr. Cleveland expressed his opinion that the veto power was given to the President for the purpose of invoking the exercise of executive judgment and in- viting independent executive action. Certainly the President is expected to safeguard the Constitu- tion by vetoing unconstitutional acts of Congress. This is especially true because many laws can only be brought before the Courts in a collateral way, if at all. The development of the exercise of the veto power is thus summed up by Finley and Sanderson: ^ "From the organization of the government under the Constitution to the end of President Cleveland's second term, the number of bills vetoed was about five hundred. Authorities differ slightly. The figures, includ- ing pocket vetoes upon which messages were written and bills informally or irregularly presented, seem to be four hundred and ninety-seven, of which the number regularly vetoed appears to be four hundred and eighty. Two hundred and sixty-five of these were private pension bills, of which five were vetoed by President Grant and the remainder by President Cleveland. Of private bills, other than pension bills, seventy were vetoed; of local or special bills, eighty-seven. The remainder, seventyrfive in number, including bills for the admission of states into the Union, are classified as general bills. Of these seventy-five, President Washington vetoed two, Madison three, Jackson six, Tyler five, Polk one, Pierce three, Buchanan three, Lincoln two, * Readings, p. 187. 2 Finley and Sanderson, The^Amerkan Executive, p. 211. • 204 American Government and Politics Johnson eighteen, Grant nine, Hayes ten, Arthur three, Cleve- land eight, Benjamin Harrison two." John Adams, Jefferson, John Quincy Adams, W. H. Harrison, Taylor, Fillmore, and Garfield did not use the veto power. Mr. McKinley vetoed at least fourteen measures and Mr. Roosevelt at least forty-two. The procedure of the President in dealing with bills has been described by Mr. Harrison.^ On its passage through Congress, a bill is signed by the President of the Senate and Speaker of the House; it is then taken to the Executive Mansion and usually referred to the head of the executive department to which its subject matter relates; in case a question of constitutionality arises, the Attorney- General is consulted. The bill then goes to the President with the departmental report upon it, and if he approves he signs the bill, dates it, and sends it to the Department of State for filing and pubhcation. If he disapproves the bill, and Congress is still in session, he returns it to the house in which it originated, with his objections, and perhaps with recommenda- tions for amendment. The veto power, taken in connection with the message and the appointing power, is an effective political instrument in the hands of the President. By using a threat of the veto, he may secure the passage of bills which he personally favors; and at all times, in considering important measures. Congress must keep in view the possible action of the President, especially where it is a party question and the correct attitude before the country is indispen- sable. Mr. Roosevelt even went so far as to warn Congress publicly that he would not sign certain measures then before that body — and raised a storm of protest from those who said that he should not veto a bill until it was laid before him. The President's Privileges and Rights In addition to his powers and duties, the President enjoys certain privileges and rights. No tribunal in the land has any jurisdiction over him for any offence. He cannot be arrested for any crime, no matter how serious — even murder/? He may be impeached, but until judgment has been pronounced against him, he cannot be in any way restrained of his liberty. * This Country of Ours, p. 128. ' Burgess, Political Science and Constitutional Law, Vol. II, p. 246. The Powers of the President 205 The President is entitled by right to payment for his services, for the Constitution provides that he shall receive at stated times a compensation which may not be increased or diminished during the term for which he is elected. He is forbidden, however, to receive any other emolument from the United States or from any state. The salary of the President was fixed at $25,000 in the beginning; it was increased to $50,000 in 1871; and to $75,000 in 1909. In addition to his personal salary the President is furnished an Executive Mansion, executive offices, and certain additional allowances. For example, in the appropriation bill of 1909, the following sums were set apart for the use of the President: — President's salary $75,000 Secretaries, clerks, etc. 69,920 Contingent fund . . . ' 25,000 Travelling expenses 25,000 For vehicles, stables, etc 3 5, 000 For additional improvements to White House . . . 40,000 For furnishings, draperies, etc 15,000 For care of grounds 5, 000 Fuel for White House and stables 6,000 Care of greenhouse 9,000 Repairs to greenhouse '. . 3,000 Printing . . 2,000 Lighting White House and public grounds . . . 19,500 Total for Executive Department for one year . . . $329,420 * The Relations of the Executive and Legislative Departments Notwithstanding the fact that, in accordance with traditional American political theory, the executive and legislative depart- ments ought to be kept entirely separate, as a matter of practice such separation is not only impossible, but highly undesirable, because it breaks the natural tie which must exist between the body which expresses popular will and the authority charged with carrying that will into execution. Acc^dingly there has been established in practice a fairly close connection between the executive and legislative departments. This has been accom- plished in many ways. ' Congressional Record for January 5, 1910. The Vice-President's salary is $12,000. 2o6 American Government and Politics I. In the first place, the party tie, of necessity, binds the President and the members of his party in Congress. Although they may from time to time engage in controversies more spec- tacular than edifying, yet on fundamental matters of policy, the President and Congress must come into a sort of working agreement. Furthermore, the President is regarded as the leader of his party, and it is to him, rather than to Congress, that his party looks for the enforcement of any specific promises laid down in the platform or made officially during the presiden- tial campaign. Congress cannot, therefore, ignore the leadership of the President, and, however much it may oppose his policy, it must give heed to those measures in which he has unquestioned national party support. Within recent years, we have come to recognize more frankly than ever this position of the President as party leader. Mr. Roosevelt was largely responsible for the poUcies which the Republican party has made national issues. In his speeches made at different points throughout the country, and in his presi- dential messages, he advocated doctrines and measures which Congress was compelled, even against its will, to accept because it realized that he had behind him powerful national interests which could not be disregarded.^ As party leader he issued, in 1906, a general letter endorsing the Republican members of Congress and calling upon the country to support them in the coming election; two years later he singled out individual mem- bers of Congress and gave them special letters of commendation.^ Mr. Taft likewise frankly assumed the position of party leadership. He was largely instrumental in the adjustment of differences between the Senate and the House of Representatives over the tariff bill of 1909. While it may not be said that his conclusions on every matter were accepted, there can be no doubt that his frequent meetings with the members of the joint conference committee charged with the settlement of those differences were of the greatest significance in securing harmony and "a reasonable compliance with the party pledges for tariff revision" that were laid down in the platform on which he made his presidential campaign. Mr. Taft also followed the example ^ Readings, p. 265. ^ New York Times, May 28, 1908. The Powers of the President 207 of his predecessor in making a general appeal to his countrymen by means of pubUc addresses. In the autumn of 1909, he made a tour throughout the West and South, discussing party problems and stating his own policies — in short, he assumed the role of political leader not unHke that assumed by the Prime Minister of England, who, in a series of pubhc addresses at different points in Great Britain, strikes the keynote for harmonious party action. Mr. Taft expressly declared that he beheved it to be the duty of the President to assume the position of leadership in his party. "Under our system of poUtics," he says, "the President is the head of the party which elected him, and cannot escape responsibihty either for his own executive work or for the legis- lative policy of his party in both houses. He is, under the Constitution, himself a part of the legislature in so far as he is called upon to approve or disapprove acts of Congress. A President who took no interest in legislation, who sought to exercise no influence to formulate measures, who altogether ignored his responsibility as the head of the party for carrying out ante-election promises in the matter of new laws, would not be doing what is expected of him by the people. In the discharge of all his duties, executive or otherwise, he is bound to a certain extent to consult the wishes and even the prejudices of the mem- bers of his party in both houses, in order that there shall be secured a unity of action by which necessary progress may be made and needed measures adopted." ^ 2. The party tie is by no means the only bond of union be- tween the executive and legislative departments. By vesting the appointing power to a large number of important offices in the hands of the President and Senate, the Constitution draws the two departments together. The extent to which the Presi- dent may use his power over appointments to influence his party friends in Congress, or the extent to which the Senate may employ its confirming power to bend the President to its will, depends upon circumstances; but it is perfectly clear that either may take advantage of the opportunity offered by this constitutional connection. An excellent illustration of the way in which the President may influence legislation is afforded by Mr. Dana's account of President Lincoln's manoeuvres to secure the adop- Four Aspects of Civic Duty, p. 100. 2o8 American Government and Politics lion of the Thirteenth Amendment. It is so eloquent that it deserves quotation in full. Lincoln was a supreme politician. He understood politics because he understood human nature. I had an illustration of this in the spring of 1864. The administration had decided that the Consti- tution of the United States should be amended so that slavery should be prohibited. This was not only a change in our national policy, but it was also a most important miUtary measure. It was intended not merely as a means of abolishing slavery forever, but as a means of affecting the judgment and the feelings and the anticipations of those in rebellion. It was believed that such an amendment to the Constitution would be equivalent to new armies in the field, that it would be worth at least a million men, that it would be an intellectual army that would tend to paralyze the enemy and break the con- tinuity of his ideas. In order thus to amend the Constitution, it was necessary first to have the proposed amendment approved by three-fourths of the states. When that question came to be considered, the issue was seen to be so close that one state more was necessary. The state of Nevada was organized and admitted into the Union to answer that purpose. I have sometimes heard people complain of Nevada as superfluous and petty, not big enough to be a state; but when I hear that com- plaint, I always hear Abraham Lincoln saying, "It is easier to admit Nevada than to raise another million of soldiers." In March, 1864, the question of allowing Nevada to form a state government finally came up in the House of Representatives. There was strong opposition to it. For a long time beforehand the question had been canvassed anxiously. At last, late one afternoon, the Presi- dent came into my office, in the third story of the War Department. . . . "Dana," he said, "I am very anxious about this vote. It has got to be taken next week. The time is very short. It is going to be a great deal closer than I wish it was." "There are plenty of Democrats who will vote for it," I replied. "There is< James E. English, of Connecticut; I think he is sure, isn't he?" "Oh, yes; he is sure on the merits of the question." "Then," said I, "there's 'Sunset' Cox, of Ohio. How is he?" "He is sure and fearless. But there are some others that I am not clear about. There are three that you can deal with better than anybody else, perhaps, as you know them all. I wish you would send for them." He told me who they were; it is not necessary to repeat the names here. One man was from New Jersey and two from New York. The Powers of the President 209 "What will they be likely to want?" I asked. "I don't know," said the President; "I don't know. It makes no difference, though, what they want. Here is the alternative: that we carry this vote, or be compelled to raise another million, and I don't know how many more, men, and fight no one knows how long. It is a question of three votes or new armies." "Well, sir," said I, "what shall I say to these gentlemen?" "I don't know," said he; "but whatever promise you make to them I will perform." I sent for the men and saw them one by one. I found that they were afraid of their party. They said that some fellows in the party would be down on them. Two of them wanted internal revenue collector's appointments. "You shall have it," I said. Another one wanted a very important appointment about the custom house of New York. I knew the man well whom he wanted to have appointed. He was a RepubUcan, though the congressman was a Democrat. I had served with him in the Republican county committee of New York. The office was worth perhaps $20,000 a year. When the congressman stated the case, I asked him, "Do you want that?" "Yes," said he. "Well," I answered, "you shall have it." "I understand, of course," said he, "that you are not saying this on your own authority?" "Oh, no," said I ; " I am saying it on the authority of the President." Well, these men voted that Nevada be allowed to frame a state government, and thus they helped secure the vote which was required. The next October the President signed the proclamation admitting the state. In the February following, Nevada was one of the states which ratified the Thirteenth Amendment by which slavery was abolished by constitutional prohibition in all of the United States.' 3. The imperative necessity under which Congress is placed of securing information from executive departments with regard to legislative matters, and the desire of executive officers to secure new laws and amendments to old laws, constitute another important bond of union between the executive and the legisla- ture. Congress is constantly making demands upon the execu- tive for papers, documents, and special information of one kind or another, and in so far as the President regards these demands as reasonable and compatible with public interest he complies with them. As a matter of right, Congress may call upon the * C. A. Dana, Recollections of the Civil War, pp. 174-177, p 210 American Government and Politics executive for information, but it has no power, under the Con- stitution, to compel him to furnish papers and documents. In practice, the anxiety of the administration to secure favor- able consideration of its own measures in Congress leads it to comply quite readily with requests for information. This is as it should be, for frequently those who have charge of the ex- ecution of the laws know more about the actual conditions to which the laws must apply and the actual effect of the laws than do the legislators themselves.^ Furthermore, it is wise that those who are called upon to execute the laws should know the spirit and intention of those who have passed them. 4. Quite an intimate relation is estabUshed between Congress and the executive through the practice of the former in inviting the assistance of departmental chiefs in drafting bills. Very frequently the Attorney- General, who is supposed to be merely the legal adviser of the President, is asked to give his opinion before a committee or to advise members of Congress on some partic- ular matters up for legislative action.^ It is also sometimes the practice for heads of departments to draft complete measures, transmit them to Congress either through a friend in that body, or even directly, and secure their reference to proper committees and ultimately their passage.^ It is a matter of common know- ledge also that the President from time to time invites to the White House members of Congress who may be of influence in securing the enactment of laws favored by the administration. On the other hand, Congress has in a number of instances even assumed the right to advise the President, by a statute or by a resolution, to adopt some particular executive policy. 5. Another important line of connection is established be- tween the executive and legislature through appropriations. The Treasury Department is by law placed in a special relation to Congress; for Congress has the power to call directly upon that department for financial information without going through the form of making a request to the President. The Treasury Department collects the estimates of the amount of money * It should be remembered that many members of Congress have seen long committee service and know more about administration than a new President or executive officer. 2 This is informally, of course. '^Readings, pp. 196 and 267. The Powers of the President 2ii required by the various executive branches and compiles these estimates in a book which is printed and submitted to Congress at the beginning of each regular session. The first Secretary of the Treasury, Hamilton, claimed the right to report whenever he pleased on financial matters, although in practice his famous reports and recommendations were submitted to Congress only upon request. It is true, his demand for admission to the House of Representatives for the purpose of defending his poHcies was denied; but throughout his term he maintained very close rela- tions with his supporters in Congress and directed legislative tactics especially with regard to the funding of the national debt and the assumption of state debts. In a letter to Jay he wrote: " 'Tis not the load of proper official business that alone engrosses me, though this would be enough to occupy any man. 'Tis in the extra attention that I am obHged to pay to the course of legislative manoeuvres that alone adds to my burden and perplexity."^ This relation between the executive department and Congress in the matter of finance has been made even more intimate by the recent law (1909) authorizing the President to review the estimated expenditures and revenues and make specific recom- mendations to Congress as to the best methods to be employe(i in securing a satisfactory balance in the budget. This law shifts to the President a large burden of responsibility which has hitherto rested on Congress and undoubtedly will give an addi- tional weight to executive influence in legislative matters. Proposals to Establish Formal Connections between the Executive and Legislative Departments Several times in our history it has been suggested that the heads of departments should be given places in the legislature for the purpose of explaining and defending there, not only measures recommended by the administration, but also the various policies pursued in the execution of the law. It is true, the Constitution would prevent heads of departments, as civil officers, from being at the same time members of either house, but the houses, either separately or jointly, may admit persons who are not members and authorize them to speak on any matter. * Hamilton, Works, Vol. X, p. 29. 212 American Government and Politics Indeed, the act of 1789 organizing the Treasury Department, provided " that the Secretary of the Treasury shall, from time to time, digest and prepare plans for the improvement and man- agement of the revenue and for the support of public credit . . . shall make reports and give information to either branch of the legislature, in person or in writing as may be required, respect- ing all matters referred to him by the Senate or House of Repre- sentatives or which shall appertain to his oflBice." There are a number of examples in our early history of execu- tive oflScers appearing in the Senate for the purpose of making explanations and reading messages and papers. President Washington always read his opening messages before the two houses; and appeared before the Senate to consult with that body about the terms of treaties in process of negotiation. On July 22, 1789, Mr. Jefferson, then Secretary of Foreign Affairs, visited the Senate, in accordance with instructions, and explained the nature of certain executive business before that body. Ex- amples of this kind might be easily multiplied, but it is a matter of established history that in the days of the men who framed the federal Constitution it was a common practice to maintain close public personal relations between Congress and the Cabinet officers. In 1 88 1, a Senate committee, appointed for the purpose of investigating the question of the relation of the executive to the legislature, reported in favor of giving heads of departments the right to appear in Congress.^ This committee urged that such a practice was no violation of the principle of separation of powers; that complete isolation of the two departments would produce either conflict or paralysis. Though the two departments of government have a separate existence, runs the report, "they were intended to cooperate with each other as the different members of the human body must cooperate with each other in order to form the figure and perform the duties of a perfect man." The introduction of heads of departments upon the floor of Congress, the committee urged, would make the infor- mation given to Congress more pertinent and conclusive, and would put the members of the legislature on the alert to see that executive influence was only in p/oportion to the value of the * Setiate Report, No. 837, 46th Cong., 3d Sess. (1881). The Powers of the President 213 information, and thus would enable the public to determine whether that influence was exerted by partisanship or by argu- ment. In answer to those who urged that it would institute an unconstitutional relation between the executive and Congress, the committee reported: '' No one who has occupied a seat on the floor of either house, no one of those who year after year so industriously and faithfully and correctly report the proceedings of the houses, no frequenter of the lobby or the gallery, can have failed to discern the influence exerted upon legislation by the visits of the heads of departments to the floors of Congress and the visits of the members of Congress to the offices in the depart- ments. It is not necessary to say that the influence is dishonest or corrupt, but that it is illegitimate; it is exercised in secret by means that are not pubUc — by means which an honest public opinion cannot accurately discover and over which it can there- fore exercise no just control." ^ In response to the contention that the imposition of these quasi-legislative responsibiUties upon heads of departments would make it impossible for them to per- form their regular administrative duties, the committee recom- mended that under-secretaries should be appointed to whom should be confided the routine business requiring only order and accuracy, so that the chief officers could confine their attention to those larger duties involving important policies. In spite of these convincing arguments, the report of the committee was simply buried in the dreary waste of congressional documents. The case against an approach to parHamentary govern- ^ By the following order issued November 26, 1909, President Taft pro- 30sed to cut off the subterranean connection between the subordinates in the executive departments and Congress: — "It is hereby ordered that no bureau, office, or division chief, or subor- iinate in any department of the Government, and no officer of the Army and N^avy or Marine Corps stationed in Washington, shall apply to either House 3f Congress, or to any committee of either House of Congress, or to any Mem- 3er of Congress for legislation or for appropriations or for congressional action 3f any kind, except with the consent and knowledge of the head of the depart- ment; nor shall any such person respond to any request for information from iither House of Congress or any committee of either House, or any Member Df Congress, except through, or as authorized by, the head of his department." \n attack was made on this order, in the House, on January 27, 1910; see Congressional Record for January 28, 1910. 214 American Government and Politics ment has been stated by President Lowell as follows.^ If tt Cabinet officers sat in Congress, the power of the President woul be reduced and the chief control of the administration would pas to the legislature. If the President were of an opposite part from that in power in Congress, his administrative authorit would be reduced to almost nothing, for, in those countri( where parUamentary government has been introduced, tt titular executive officer, whether he be the King of England ( the President of France, loses his political power. Furthermor deadlocks between the Senate and the House over any mini: terial poUcy would inevitably lead to the supremacy of or branch of the legislature and the decline of the other. If oi development should follow the Hne indicated in other countri( having parliamentary government, the House of Representativi would become supreme, the Senate would sink into a mere opp( sition of the House like the House of Lords in England, and tt President would become merely a nominal head. Furthermor such a fusion of executive and legislative departments woul strengthen the federal government at the expense of the state and would destroy the power of the courts to declare statuti invahd. In other words, it is contended, anything Hke parh; mentary government would make a revolution in the who framework of our federal system, and dislocate the distributic of powers among the three departments. This argument, of course, does not apply to the proposal ( the Senate committee to allow cabinet officers to discuss an defend administrative policies in either house of Congres Doubtless such moderate change, however, would be regarde as a step in the direction of a political revolution, and we sha probably continue to maintain, by subterranean and extra-leg; methods, the connections between the executive and legislatui which ^are maintained openly and in the full light of publ: scrutiny in England and in France. ^ Essays on Government, pp. 25-45. CHAPTER XI THE NATIONAL ADMINISTRATION The innumerable duties to be fulfilled in the execution of federal law under presidential supervision are distributed among nine great departments and certain commissions, established by Congress. Curiously enough, the Constitution makes no direct provision for these branches of the federal administration; but it evidently assumes their existence, for it authorizes the Presi- dent to require in writing the opinion of the heads of the execu- tive departments, and also gives Congress power to vest in them the appointment of inferior officers. It is on this constitutional basis, therefore, that Congress assumes the power to create de- partments by law, regulate the duties of their respective heads down to the minutest details, and prescribe their internal organ- ization and the powers and duties of the chiefs of even the minor subdivisions. Occasionally, however, the President takes the initial steps in the organization of a bureau by executive order, and Congress has subsequently sanctioned the act by a special law, or a regular appropriation. The Heads of Departments The head of a federal department occupies a position radically different from that of a cabinet officer in any other country. He is appointed by the President,^ and may be removed by him or by impeachment. His duties, however, are prescribed minutely, not in presidential orders, save in certain instances, but in statutes enacted by Congress. He is responsible to the Presi- dent for the faithful execution of the law; but the President cannot alter or diminish any of the duties laid down by Congress, and cannot prevent Congress from imposing or taking away duties or from prescribing such minute details as amount to a * With the Senate's approval. Above, p. 189. 21S 2i6 American Government and Politics practical direction of the officer. "The President," says Mr. John Sherman, *'is intrusted by the Constitution and laws with important powers, and so by law are the heads of departments. The President has no more right to control or exercise the powers conferred by law upon them than they have to control him in the discharge of his duties. It is especially the custom of Congress to intrust to the Secretary of the Treasury specific powers over the currency, the pubUc debt, and the collection of the revenue. If he violates or neglects his duty, he is subject to removal by the President or impeachment, . . . but the President cannot exercise or control the discretion reposed by law in the Secretary of the Treasury, or in any head or subordinate of a department of the government." ^ The President, as we have seen, has the power of removal, however, and may exercise it for the purpose of directing his subordinates. In actual practice, therefore, there are many variations from Mr. Sherman's apparently convincing legal argument, especially when a strong-willed President has a firm policy of his own which he is determined to carry out.^ Indeed, the logical application of his doctrine would amount to a complete decentralization of the admin- istrative organization and a destruction of the President's re- sponsibility. While it is impossible to give here a full account of the duties of each secretary, it seems desirable to consider some matters which are common to them all. 1. In the first place, a large appointing power to minor offices is conferred by law upon the departmental head, but this is now exercised under civil service rules which restrict his choice, in all except the important subordinate positions, to the candidates who have qualified by examination.^ The power of removal gener- ally accompanies the power of appointment, although there are some important exceptions by law and by executive order. 2. In the second place, the head of a department enjoys a. certain range of freedom in issuing departmental orders, for, by act of Congress, he may "prescribe regulations, not inconsistent with law, for the government of his department, the conduct of its officers and clerks, the distribution and performance of its * J. Sherman, Recollections, Vol. I, p. 449; Readings, p. 200. ^ See above, p. 188. ^ Below, p. 224. The National Administration 217 business, and the custody, use, and preservation of the records, papers, and property appertaining to it." 3. Every departmental chief maintains a more or less definite relation to Congress. He must prepare annually a report of his department,^ but this is largely a formal compilation, for the mat- ters of policy or detail covered in it have little or no influence in directing legislation. Though Cabinet officers cannpt be members of Congress, there is, as we have seen, nothing in the Constitution excluding them from the right to sit and speak there. Custom has decreed, however, that they must bring their influence to bear in circuitous ways. They often appear before Senate or House committees to explain measures or to answer inquiries as to some legislation relating to their respective departments.^ There are many instances of heads of departments transmitting to Congress, on their own motion, completed drafts of bills which they would Hke to see enacted into law.^ They sometimes establish friendly relations with the chairmen of prominent committees, and thus obtain a hearing for their policies which would otherwise be denied to them. 4. The head of every department is subjected to constant interruptions from outside parties such as can come to the chief of no great business organization. "Washington wishes to see evidence of democracy about the departments," says a former Secretary of the Treasury, Mr. Vanderlip. "Neither Senator nor Congressman is satisfied to cool his heels in an ante-room for any length of time, nor are political leaders who come to the capi- tol on a mission likely to be pleased if the Secretary's engage- ments are such that an appointment cannot be made with- out notice or delay. . . . The Secretary of this great de- partment must give heed to innumerable trifles such as would never reach the head of even a comparatively small business organization. Requests come from people of importance, and they must be taken up with the care which the position of such persons demands rather than with any thought of their importance in relation to the administration of departmental affairs." * ' The Report of the Secretary of State is transmitted to Congress with the President's annual message. ^ Reinsch, Readings, p. 37 1 . ^ Readings, p. 267. * Reinsch, Readings, p. 366. 21 8 Am eric an 'Government and Politics 5. With the multipUcation of the official duties connected with immigration, commerce, transmission of mails, and taxation, it has been found necessary to give to the heads of certain depart- ments the high authority of deciding finally upon cases appealed from lower administrative officials/ For example, the immi- gration law provides "that in every case where an aUen is ex- cluded from admission into the United States under any law or treaty now existing or hereafter made, the decision of the appro- priate immigration officers, if adverse to the admission of such alien, shall be final, unless reversed on appeal to the Secretary of Commerce and Labor"; and the decision of the Secretary is conclusive unless it can be made apparent that he has exceeded his jurisdiction or violated the law. Customs officers also are given large powers in appraising the value of imported goods, and the Court has declined to review the appraisements made by the proper authorities, declaring that the interposition of the courts in the appraisement of importations would involve the collection of the revenue in inextricable confusion and embarrassment. The Postmaster- General may issue fraud orders denying the use of the mails to persons and concerns who in his opinion are en- gaged in fraudulent transactions; ^ and those affected have no right to appeal to the courts for a review of the facts lOn which he bases his decisions.^ In sustaining this conclusion, the Court said : " If the ordinary daily transactions of the departments which involve an interference with private rights were required to be submitted to the courts before action was finally taken, the re- sult would entail practically a suspension of some of the most important functions of government. ... It would practically arrest the executive arm of the government, if the heads of de- partments were required to obtain the sanction of the courts upon the multifarious questions arising in their departments, before action were taken in any matter which might involve the tem- porary disposition of private property. Each executive depart- ment has certain public functions and duties, the performance of which is absolutely necessary to the existence of the government, and it may temporarily at least operate with seeming harshness ^ Readings, p. 202. ^ See below, chap, xx; Readings, p. 204. ^ They may appeal on questions involving construction of the law ; School of Magnetic Healing v. McNulty, 187 U. S. R., 94. The National Administration 219 upon individuals. But it is wisely indicated that the rights of the pubHc must, in those particulars, override the rights of individ- uals, provided there be reserved to them an ultimate recourse to the judiciary." ^ The Cabinet The heads of the various departments compose the President's Cabinet ; but this is a matter of custom, not of law, for the Cabinet, as a collective body, has no legal existen,ce or powers. Congress, in creating the first departments in 1789, did not recognize, in any way, the possibility of a Cabinet council composed of the heads. Indeed, the act estabhshing the Treasury Department was de- signed, as we have seen, to bring the Secretary under congres- sional control in many ways. The Senate, being a small body, was then regarded as the real executive council on account of its powers of ratifying treaties and confirming appointments. Whatever may have been the view of Congress, however, Washington regarded the four chief executive officials, including the Attorney- General, who was not made head of a department until 1870, as his confidential advisers, though the term Cabinet was not immediately applied to them. He also exercised his constitutional right of requiring opinions from the heads of de- partments, and took them into his confidence in all important matters very soon after the first appointments were made. We have direct evidence of Cabinet meetings as early as 1791, when Washington, having departed on a tour to the South, wrote to the three Secretaries: "I have expressed my wish, if any serious or important cases . . . should arise . . . that the Secretaries for the Departments of State, Treasury, and War may hold con- sultations thereon, to determine whether they are of such a nature as to demand my personal attendance." During his first ad- ministration, Washington, by a gradual process, welded the de- partmental heads into an executive council, and by 1793 we find the term Cabinet or Ca]|inet Council applied to this group of presidential advisers.^ The Cabinet now meets regularly at stated times fixed by the ' On this point, see Readings, p. 202 ff., and an article by Thomas Reed Powell on "The Conclusiveness of Administrative Determinations in the Fed- eral Government," American Political Science Review for August, 1907. 2 See Yde Review, Vol. XV, pp. 160 flf. 220 American Government and Politics President in the rules of the White House, printed in the Congres- sional Directory} The meetings are usually secret, and no record is kept of the transactions. As the special business of each de- partment is discussed separately with the President by each offi- cer, only matters of weight relative to the general policy of the administration are brought up for consideration at Cabinet meet- ings.^ Any important piece of legislation desired by the Presi- dent or by a Cabinet officer and about to be submitted to Congress, will very probably be discussed in detail, especially if it concerns party principles. Votes are seldom taken on propositions, and they are of no significance beyond securing a mere expression of opinion. This is illustrated by an incident related of President Lincoln, who closed* an important discussion in the Cabinet in which he found every member against him, with the announce- ment: "Seven nays, one aye, the ayes have it." Nevertheless, Cabinet meetings are of service to the administration, especially in maintaining harmonious cooperation among the departments and in formulating the executive policy. The Cabinet is the President's council in a very peculiar sense, for, having no legal existence or warrant, it is not subjected as such to congressional control. In the first administration of President Jackson, the Senate requested the transmission of a paper pur- ported to have been read by him to the heads of the executive departments, and he replied in no uncertain language: "The executive is a coordinate and independent branch of the govern- ment equally with the Senate, and I have yet to learn under what constitutional authority that branch of the legislature has a right to require of me an account of any communication, either verbally or in writing, made to the heads of departments acting as Cabinet council. As well might I be required to detail to the Senate the free and private conversations I have held with those officers on any subject relating to their duties and my own." ^ * One day in the week is known in Washington as " Cabinet Day." ^ Harrison, This Country of Ours, pp. 105 ff. ' Richardson, Messages, Vol. Ill, p. 36. j The National Administration 221 The Departments of National Administration^ Some indication of the complexity and extent of the adminis- trative activities of the federal government is afforded by the following table giving the several departments and their chief officers and subdivisions. Department of State. — The Secretary and three assistant secre- taries; chief clerk; counsellor; seven bureaus: diplomatic, consular, indexes and archives, accounts, rolls and hbrary, appointments, citi- zenship, trade relations; and four divisions: far-eastern affairs, near- eastern affairs, Latin-American affairs, and information. Department of the Treasury. — The Secretary and three assistant secretaries; chief clerk; supervising architect; comptroller of the treasury; auditors for the Treasury, War, Interior, Navy, State (and other departments) and Post-Office Departments; treasurer of the United States, register of the treasury; comptroller of the currency; director of the mint; commissioner of internal revenue; public health and marine hospital service; revenue cutter service; bureau of printing and engraving; life-saving service. Department of War. — Secretary of War and assistant secretary; chief clerk; general staff; adjutant-general in charge of records; inspector-general; quartermaster-general (transportation); com- missary-general of subsistence; surgeon-general; paymaster-general; chief of engineers; chief of ordnance; judge-advocate-general; chief signal officer; chief of the bureau of insular affairs; board of engineers for rivers and harbors; division of miUtia affairs. Department of Justice. — Attorney-General; assistants; solici- tor-general; solicitors for the Departments of State, Treasury, Com- merce and Labor, and Interior, and solicitor of internal revenue; assistant attorney-general for the Interior Department; chief clerk; division of accounts; attorney in charge of pardons; appointment ' The principal functions of the several departments and commissions are discussed in their appropriate places in the chapters which follow; but it seems advisable to give this catalogue for the purpose of giving definiteness to the framework of the national administrative system. Consult the Index. The salary of the secretaries is $12,000 each, except the Secretary of State, who receives only $8,000 a year — a peculiar situation due to the fact that Mr. Knox was a member of the Senate at the time of the increase and could not constitutionally take an office, the emoluments of which had been in- creased during his term in Congress. Hence Congress found it necessary to place the salary of the Secretary of State at the old amount in order to allow him to take the office. 222 American Government and Politics and disbursing clerks; superintendent of prisons; chief examiner of records; examiner of land titles. Post-Office Department. — Postmaster-General and four as- sistant postmasters-general; ^ chief clerk; assistant attorney-general; purchasing agent; chief inspector. Department of the Navy. — Secretary and assistant secretary; chief clerk; eight bureaus: navigation, yards and docks, equipment, ordnance, construction and repair, steam engineering, medicine and surgery, supplies and accounts; judge-advocate-general; comman- dant of the marine corps; sohcitor. Department of the Interior. — Secretary of the Interior and two assistant secretaries; chief clerk; commissioner of patents; pen- sions; land office; Indian affairs; education; geological survey; and reclamation service. Department of Agriculture. — Secretary of Agriculture and assistant secretary; chief clerk; solicitor, appointment clerk; animal industry, weather, chemistry, statistics, accounts and disbursements, entomology, soils, biological survey, plant industry; office of experi- ment stations; forest service; office of public roads; division of publi- cations; librarian of the department. Department of Commerce and Labor. — Secretary of Com- merce and Labor; chief clerk and disbursing clerk; divisions of ap- pointments, printing, and supplies; bureaus of corporations, manu- factures, labor, census, statistics, fisheries, navigation, immigration and naturalization, and standards; coast and geodetic survey; light- house board; steamboat inspection service. In addition to these nine departments there are two independent commissions: the Interstate Commerce Commission, composed of seven members, and the Civil Service Commission, composed of three members. There is also an International Bureau of American Re- publics, under the supervision of a director, charged with fostering trade relations throughout the two Americas. Finally the Government Printing Office may be mentioned. The Civil Service The vast army of civil employees in the executive service of the United States centred at Washington and scattered throughout the whole American empire is organized into a complicated hie- rarchy headed by the nine departmental officers who constitute the President's Cabinet. The head of each department, as noted above, usually has a number of assistants. There are, for ex- ^ For the complex duties of these four assistants, see below, chap. xix. The National Administration 223 ample, four assistant postmasters-general and three assistant secretaries of state. The administrative work of each depart- ment is distributed among a number of bureaus and divisions, each with a chief officer, generally speaking, responsible to some higher authority.^ In each of the divisions or bureaus there are a number of clerks, technical experts, and employees serving in a variety of capacities. The total number of persons employed in the Interior Department, for instance, according to the Secretary's report for 1908, was 18,770, of whom 4,396 were in Washington. The officers and employees in the whole executive civil service on June 30, 1908, numbered approximately 352,000. Considering this vast army with regard to methods of appointment, we find that it falls into two groups: 206,637 admitted on examination, or under the merit system, and 145,000 appointed without examination. As we have seen above, ^ even the offices now filled by examina- tion were formerly subject to the spoils system — that is, they were given principally to party workers without special considera- tion for their fitness and without any test of abilities. After some tentative experiments at reforming this spoils system,^ Con- gress at length passed, in 1883^ the Civil Service Act/ which is still the fundamental law governing the federal service. This Act provides for a Civil Service Commission composed of three persons, no more than two of whom shall be adherents of the same party, appointed by the President and Senate, and charged with the duty of aiding the President, as he may request, in pre- paring suitable rules for competitive examinations designed to ^ The relation of bureau chiefs to heads of departments is no more scien- tifically worked out than the relation of heads of departments to the President. See above, p. 188. 2 Page 139. ^ Among these tentative measures were (i) the law of March 22, 1853, providing for the classification of certain clerks in Washington and requiring heads of offices to examine clerks before appointment — a law which proved to be little more than a farce; (2) the law of 1864, providing examination for thirteen consular clerks in the Department of State, and (3) the law of March 3, 187 1, authorizing the President to prescribe regulations for admission into the civil service and to provide methods for ascertaining the fitness of candi- dates — a law which promised well under the administration of the great champion of civil service reform, George William Curtis, but fell to the ground in 1873, when Congress refused to make the necessary appropriations for its execution. * Readings, p. 208. 224 American Government and Politics test the fitness of applicants for ofiices in the public service,' already classified or to be classified by executive order under the Act, or by further legislation of Congress. The Commission aids the President generally in the execution of the Act. The Act itself ordered the Secretary of the Treasury and the Postmaster- General to make classifications of certain employees within their respective jurisdictions, and at the same time pro- vided that the heads of certain departments and ofiices should, at the direction of the President, revise any existing classification or arrangement of their employees and include in one or more of such classes subordinate officers not hitherto classified. In other words, the Act itself brought a few offices under the "merit sys- tem," and left the extension of the principle largely to the dis- cretion of the President and future acts of Congress. When the law went into force it applied to only about 14,000 places which were then included in the classified service. The number has been steadily increased, principally by executive orders, until to-day far more than half of all of the offices in the executive civil service are filled by the process of examination and promotion under the civil service rules. During his ad- ministration. President Roosevelt issued a large number of orders extending the merit system. For example, in 1901-02, he ex- tended the application of the rules to the rural free delivery service; in 1902, at the suggestion of the President, the employees in the census office were classified by act of Congress; in 1904 the positions in the forestry service were made competitive; and in 1905 the special agents of the immigration bureau on duty in foreign countries were included within the classified service.^ This list of Mr. Roosevelt's extensions is by no means complete — it merely illustrates the way in which the President may steadily widen the range of the " merit system " by applying it to one group of government employees after another. When Mr. Roosevelt entered upon his administration there were about 100,000 officials in the classified service, and before the close of his second administration the number had increased to nearly 200,000.^ .The Civil Service Commission, under the direction of the Presi- ^ Reinsch, Readings, p. 698. ^ There was, it must be remembered, a large increase in the number of government employees during this period. The National Administration 225 dent, prepares the large variety of examinations required to test the fitness of candidates for the multitude of different oflftces. There is a chief examiner at Washington, and there are several hundred local boards of examiners scattered among the states and territories for the purpose of supervising local civil service examinations.^ The Act orders that boards of examiners shall be erected at such points as to make it reasonably convenient and inexpensive for applicants to attend examinations. The Act requires that such examinations shall be practical in their character, and, so far as may be, relate to those matters which will fairly test the relative capacity and fitness of persons exam- ined to discharge the duties of that branch of the government service to which they seek to be admitted. In preparing the examination papers it is the practice of the Commission to ask the cooperation of the various departments; if a technical posi- tion is to be filled, the department concerned usually notifies the Commission, and very probably prepares the technical questions to test the fitness of candidates for the place. ^ The preparation of the examination papers for a large number of positions is relatively a simple matter, for about sixty-six per cent of federal offices covered by the merit system are clerical in character. Only about eleven per cent are reckoned as pro- fessional, technical, scientific, mechanical, and executive. About as many of the clerical positions are in the postal service as in all the other branches of the federal administration com- bined. These various positions are classified into groups ar- ranged according to the minimum and maximum salaries paid in each; and for examining purposes they are separated into six divisions: clerical, technical, executive, mechanical, sub-clerical, and miscellaneous. Any citizen of the United States may apply for an examination admitting him to the federal service.' For a long time, owing to ^ These local boards are composed of federal officers detailed for this occasional work. ^ During the year ending June 30, 1907, no less than 136,108 persons were ex- amined; 99,261 passed; and 44,288 were appointed to the government service. ^ Full information may be secured by directing a request to the Civil Ser- vice Commission, Washington, D.C. Citizens are excluded on the following grounds: mental or physical incapacity, excessive use of intoxicants, service in the army or navy, dismissal from public service for delinquency during the preceding year, and criminal or disgraceful conduct. Q 226 American Government and Politics the lax methods prevailing, aliens were often admitted to govern- ment employment, but within recent years the requirement of citi- zenship has been quite rigidly enforced. AppUcants for examina- tion are not even charged a fee, in spite of the fact that the Civil Service Commission has several times recommended the estab- lishment of a nominal charge for the purpose of excluding the many thousands of ill-prepared persons who take the examina- tions in a gambling spirit — nothing to lose and possibly some- thing to gain. Through these examinations the Civil Service Commission must keep its registers of eligibles full, so that it can supply men of the most diverse training and experience w^hen called upon by the several departments. On the same day, there may be demands for clerks, stenographers, expert chemists, patent examiners, draftsmen, interpreters, and postal clerks; and the Commission must be ready at once with a list of persons duly quaUfied for such positions. When called upon, the Commission selects from the proper register and transmits to the department concerned the names of three candidates at the head of the list, who are (if possible) resi- dents of the state wherein the appointment falls. ^ From this list of three any one may be selected by the appointing officer, and the other names' are returned to the Commission to be replaced upon the register. If the appointing officer refuses to accept any one of the three, he must give satisfactory reasons for his action. Every successful candidate is put on probation for a period of six months; then if his record is good his appointment is made permanent. It should be noted, however, that there are certain exceptions to the operation of the rules in the matter of making appoint- ments, (i) Preference is given to persons honorably discharged from the military or naval service; and, unless by direction of the Senate, no person who has been nominated for confirmation by the Senate shall be required to be classified or to pass an examina- tion. (2) Appointments to the public service in the depart- ^ It will be noted that " inferior " officers, under the Constitution, may only be appointed by the President alone, the heads of departments, or the courts, as Congress may determine. As a matter of fact the vast majority of inferior officers are appointed by heads of departments under Civil Service rules. The National Administration 227 ments at Washington shall be apportioned among the several states and territories and the District of Columbia upon the basis of population — a principle which it is impossible to carry out in practice.^ (3) In general, private secretaries to the heads of de- partments, assistants, bureau chiefs, and attorneys and persons called upon to fill emergency employments are exempt from ex- amination.^ The process of removal from the federal service after appoint- ment is a relatively simple matter. The rules require that no person shall be removed from a competitive position, "except for such causes as will promote the efficiency of the service." When the President or head of an executive department ^ is con- vinced that any employee in the classified service is incapable or inefficient, he may remove such employee without notice. When- ever a subordinate officer recommends to the head of an executive department the removal or reduction in grade of some employee, the head of the department may, at his discretion, require that notice be given to the employee affected and a reasonable time afforded him for answering the same. The Civil Service Com- mission^ contends that the complaint frequently heard to the effect that unfit men are protected against removal by the rules is untrue. "On the contrary," says the Commission, "the power of removal for unfitness is with the head of the office. The appointing officer being responsible for the efficient performance of the work of his office, it rests with him to determine whether such cause exists as to require the removal of an employee in order to promote the efficiency or discipline of his office." The courts do not interfere in cases of removal, on the ground that the right of appointing involves the right of removal and ' A clause was attached to the census bill of 1909 designed to eliminate many frauds connected with residence claims. ^ The exemptions include a long list of ofl&cers filling five printed pages of the Civil Service Report: two private secretaries to the head of each executive department and one to each assistant head, one private secretary to each of the heads of bureaus filled by the President and Senate, all persons appointed by the President without confirmation of the Senate, attorneys and persons receiving not more than $300 in compensation, appraisers at the ports of Boston, New York, and Philadelphia, all persons in the army transport service, and so forth. ^ With regard to his own subordinates, of course. * Twenty-fourth Annual Report (1908), p. 87. 228 American Government and Politics that the Civil Service Act limits the power of removal in only one instance — refusal to contribute money or service to a politi- cal party. In practice, however, whenever a large number of employees of the same political faith are removed from ofiice, it is presumed that the removal was for political reasons, and the offi- cer making the removals is required to show that just cause ex- isted for each removal; but the courts will not intervene. Administrative officers are now required to keep "efficiency records" of the employees imder their supervision and to render a periodical report giving the several employees' records in dili- gence, punctuality, faithfulness, and accuracy. These efficiency records are filed and used as the basis for promotion or expulsion from the service. The difficulties of making up a fair and just record are apparent; and it is also evident that no mechanical sys- tem of rating can reveal the real capacities of the persons rated. Some objection has been made to this system of efficiency testing on the ground that it depends largely upon the personal opinion of the supervising officer and that it encourages serviHty and pre- tence on the part of subordinates. On the other hand, it is urged that, rough and unjust as these efficiency markings frequently are, they serve as a valuable deterrent to negligent and indolent em- ployees who, if left to their own devices, would do as badly as they could. Furthermore, the law makes provision for promotions in the federal service, and some system of efficiency ratings seems in- dispensable. Of course, competitive examinations are estab- Hshed to test the fitness of candidates for promotion as well as candidates for admission, and a list of eligibles for advancement is kept; but candidates for promotion may use, in support of their claims, recommendations from the chiefs under whom they have served. In making promotions, removals, and reductions in rank it is very difficult to exclude partisan politics from consideration, but attempts have been made by act of Congress and presidential orders to protect employees in the classified service from undue political influence, and also to withdraw them from too great activity in partisan politics. The original Civil Service Act provides that no person in the public service is for that reason under any obHgations to contribute to any political fund or to render any political service, and that he shall not be removed or The National Administration 229 otherwise prejudiced for refusing to do so. Furthermore, no person in the public service has a right to use his authority to co- erce the political action of any person. No recommendation by a Senator or a member of the House of Representatives, except as to the character or residence of an applicant, can be lawfully re- ceived or considered by any person concerned in making exam- inations or appointments under the Civil Service Act. Members of Congress and executive, judicial, military, and naval officers are forbidden to be involved in soHciting or receiving political as- sistance or contributions from any officer employed by the United States or from any person receiving compensation from the United States.^ The practice of soliciting campaign contribu- tions in the buildings occupied by branches of the federal govern- ment is likewise forbidden by law. Other forms of political activities, however, were left by the Act to the control of the heads of departments, and from time to time executive and departmental orders were issued for the pur- pose of eliminating abuses arising from the active participation of inferior office-holders in party affairs. At length, in 1907, politi- cal activity in the broadest sense was placed under the super- vision of the Civil Service Commission by an amendment to the rules, adopted by the President, providing that "all persons who by the provisions of these rules are in the competitive classified service, while retaining the right to vote as they please and to express privately their opinions on all political subjects, shall take no active part in poHtical management or in political campaigns." This rule has been construed by the Commission to forbid the use of official positions for the benefit of any political party; and since its adoption it has been interpreted to prohibit the following types of pohtical activity: "Service on poUtical committees, service as delegates to county, state, or district conventions of a poUtical party, although it was understood that they were not Ho take or use any political activity in going to these conven- tions or otherwise violate the civil service rules'; continued political activity and leadership; the publication of a newspaper in the interest of a political party; membership in a club taking an active part in political campaigns and management; the cir- culation of petitions having a pohtical object; service as a com- * There is, no doubt, more or less violation in practice. 230 American Government and Politics missioner of elections in a community where it was notorious that a commissioner of elections must be an active politician." ^ The principle of permanent tenure involved in the merit system of appointment raises the question as to what shall be done with government employees who have passed the age of efficient service. It is only possible to keep the civil service up to a high standard by constantly recruiting it from able young men in the prime of life. This throws upon the officer responsible for administration the imwelcomeduty of reducing the pay and the rank of the older men or discharging them altogether. If these older men are kept in service, it is frankly out of a generous ap- preciation of their condition. They are not only inefficient them- selves, but by holding high places which they have won by meri- torious services they block the way for the promotion of capable and energetic younger men. "No man," said the quartermaster- general recently, "with the slightest appreciation of the loyalty of these old, tried, and faithful employees will urge that they should be discharged, and a reduction in salary is so dishearten- ing to them as to render nugatory their services after such action. No matter how kindly the necessity is explained to them, reduc- tion is a severe blow. ... If they are retained in the grades at- tained by merit in the period when they could and did do all or more than their duty, the effect on the younger clerks who then do the work is depressing in the extreme. Some provision for retiring the old clerks ought to be made. More good effects on administration would probably come through provision for retire- ment than any other one action that could now be taken, and its effect would doubtless prove as beneficial as did the establishment of the merit system." - President Taft took this view of the situation in his message of December 7, 1909, in which he declared that, in spite of the opposition to the establishment of civil pensions, which had naturally grown out of the heavy burden of military pensions, he was strongly convinced that no other practical solution of the difficulties presented by superannuation in the civil service could be found, than that of a system of civil pensions. ^ Report of the Civil Service Commission (1908), p. ip. ^Annual Report (1905), p. 65. CHAPTER XII THE CONGRESS OF THE UNITED STATES The Congress of the United States is composed of two bouses: a Senate representing the commonweahhs in their corporate ca- pacities, and a House of Representatives apportioned among the states according to their respective populations. Two leading motives were responsible for the adoption of this bicameral system. In the first place, it was necessary to secure the support of the smaller states for the new Constitution by granting them equality of power in one branch of the federal government. In the second place, the Fathers believed that some check was nec- essary upon the impulses and passions of the more popular body. Then, of course, they had before them the examples of the English Parliament and their colonial assemblies. The House of Representatives The number of members in the House of Representatives is fixed by Congress, subject to the limitation that it shall never ex- ceed one for every 30,000 of the population. The first House consisted of sixty-five members, and, with one exception (the reapportionment of 1842) the number has been regularly in- creased until it has now reached 391. At each recurrence of the decennial apportionment there is a strong pressure on Congress to add more members to the already unwieldy assembly. This is due to the fact that those states whose populations have in- creased only shghtly, or not at all, are unwilling to have their representation reduced in order that the rapidly growing states may receive the proportion due them under the numerical rule. It must be noted also that with the growth of population the number of inhabitants in each congressional district has in- creased enormously, from about 33,000 in 1793 to about 200,000 at the apportionment of 1901. This makes a constituency of great size when compared with the parliamentary district in England or in France. 231 232 American Government and Politics A member of the House of Representatives must be a citizen of the United States of at least seven years' standing; he must be not less than twenty-five years old and an inhabitant of the state in which he is chosen. He cannot be at the same time a military or civil officer of the United States; and nearly all of the states have, by law or constitutional provision, forbidden their officers to hold positions of trust under the federal government. Some states have gone further and provided that each member must be a resident of the district which he represents; but this restriction is regarded by most lawyers as unconstitutional, because it adds a quaUfication to those imposed by the federal Constitution.* As a matter of fact, however, it is practically an unwritten law that the member must be a resident of his district, although there are a few exceptions, as for example in New York, where down- town constituencies are often represented by men residing in up- town districts. Mr. Bryce has summarized the reasons for the adoption of this general custom as follows : State pride, of course, will prevent a district from going outside of the commonwealth for its Representative; the member of the House is relatively well paid, and the party in the district does not want to waste the post on strangers, but prefers to reserve it to strengthen the local organization; owing to the vast amount of party work re- quired by our complicated system, it is necessary to have as many offices as possible to reward the workers; the Representative in Congress is expected to know and primarily represent local needs and to secure harbor and river appropriations, post-office build- ings, special protection for industries and other favors for his constituents, for Americans regard the Representative as a spokesman of local interests rather than as a statesman, " formu- lating reason and justice into law." It is, therefore, highly im- probable that any change will be made in this unwritten law, at least in the near future, notwithstanding the fact that it often excludes able men from Congress because talent is not distributed by nature according to congressional districts. While it seems clear that states cannot add qualifications to those imposed by the federal Constitution on members of Con- gress, it is conceded in practice that either house, in the exercise of its constitutional powers to be judge of the elections, returns, ^ But it is difficult to see how it could be set aside by legal process. The Congress of the United States 233 and qualifications of its members, may exclude persons on other grounds than those laid down in the Constitution.^ For example, in 1900, the House excluded Mr. Brigham H. Roberts of Utah on the ground that he was a polygamist. . The committee reporting in favor of this action contended: "Must it be said that the constitutional provision, phrased as it is, really means that every person who is twenty-five years of age and who has been for seven years a citizen of the United States and was when elected an in- habitant of that state in which he was chosen, is eligible to be a member of the House of Representatives and must be admitted thereto even though he be insane or disloyal or a leper or a crimi- nal? Is it conceivable that the Constitution meant that crime could not disqualify? The whole spirit of the government re- volts against such a conclusion." The minority of the committee reported, however, against this view, declaring: "The adding by this House alone of a disquahfica- tion not established by law would not only be a violation of both the Constitution and the law, but it would be a most dan- gerous precedent which could hardly fail to 'return to plague the inventor. ' . . . What warrant have you, when the barriers of the Constitution are once broken down, that there may not come after us a House, with other standards of morality and propriety, which will create other qualifications with no rightful foundations? ... It will no longer be a government of laws but of men. To thus depart from the Constitution and substitute force for law is to embark upon a trackless sea without chart or compass."^ This view was also held by those who claimed that the proper way of getting rid of Mr. Roberts was to admit him to membership and then expel him under the right to eject by two- thirds vote; but the party of exclusion triumphed. The Constitution provides that no person holding any office under the United States shall be a member of either house during his continuance in office. Under this provision several army officers have been excluded from the House of Representatives. For example, in 1803, Mr. John P. Van Ness, a Representative from New York, was appointed major of the mihtia under the authority of the United States in the District of Columbia, and * It has been done, however, in only a few cases. ' Hinds, Precedents of the House of Representatives, Vol. I, pp. 527 fif. 234 American Government and Politics the committee on elections in the House declared by unanimous vote that by his acceptance he had forfeited his seat. The practice of Presidents in frequently appointing members of the Senate and House as commissioners to negotiate treaties and make investi- gations has raised the question as to whether members of Congress can legally accept such positions. The judicial committee of the Senate in reviewing this matter came to the conclusion that " a member of a commission created by law to investigate and report but having no legislative, judicial, or executive powers, was not _an officer within the meaning of the constitutional inhibition." ^ ^ Members of the House of Representatives are apportioned among the several states ^ according to their respective numbers, counting the whole number of persons in each state, exclusive of Indians not taxed — subject, however, to the limitation that each state must have at least one Representative. Until 1842, Con- gress left the states to their own devices in election methods, but in that year the Apportionment Act provided, "that in every case where a state is entitled to more than one Representative, the number to which each state shall be entitled under this apportionment shall be elected by districts composed of con- tiguous territory, equal in number to the number of Representa- tives to which said state may be entitled, no one district electing more than one Representative." It is now the rule of Con- gress to require that congressional districts shall be composed of "contiguous and compact territory containing as nearly a:^ practicable an equal number of representatives," each district electing only one Representative, except in the case that, if the state legislature fails to carry out this exact provision, cer- tain or all of the members may be elected at large on a general ticket.^ Notwithstanding the intention of Congress to provide for sub- stantially equal congressional districts, our state legislatures have succeeded in creating, principally for partisan purposes, the gross- ^ Hinds, Precedents, Vol. I, p. 604. ^ Alaska, Arizona, Hawaii, New Mexico, and Porto Rico have one delegate each in the House of Representatives, and the PhiUppine Islands have two delegates. These delegates have seats in the House, and may speak there, but they have no vote. ' See Readings J p. 218. North and South Dakota are specially authorized by Congress to elect their respective Representatives at large. The Congress of the United States 235 est inequalities. On comparing the total number of votes cast in congressional districts, we find the greatest discrepancies. For example, in 1906 a Mississippi district with a population of 232,174 cast 1540 votes, while a New York district with a popu- lation of 215,305 cast 29,119 votes. In New York in 1906 there were 58,190 voters in the twenty-third congressional district, and only 13,862 voters in the ninth congressional district. These differences, of course, are not due entirely to the gerrymander, for representation is not based on the number of voters, but on the population. Even in the matter of population, however, there are great dis- crepancies. The fifteenth congressional district (RepubHcan) in New York (1905) had 165,701 inhabitants, while the eighteenth (Democratic) had 450,000 inhabitants. These discrepancies are partially due to the necessity of recognizing units of local government such as counties, townships, and city blocks, in laying out the districts, but they are more especially due to the desire of the majority party in each state legislature to secure as many of its members as possible in Congress. This misuse of the power of creating congressional districts, known as "gerrymandering," ^ has been devised as a means by which a dominant party can make its own vote go as far as possible in congressional elections and cause its opponent's vote to count for as little as possible. This is done by massing the voters of the opposing party in a small number of districts, giving them over- whelming majorities there, while allowing the dominant party to carry the other districts by very small minorities. Gerryman- dering is responsible for some curious poHtical geography. There is, for example, the famous "shoestring district" in one of the southern states where gerrymandering has been used to counter- act the effect of the negro vote. There was at one time in Illinois the " saddle bag " district comprising " two groups of coun- ^The term "gerrymander" originated in Massachusetts. It appears that Elbridge Gerry, a distinguished Democratic politician of his day, was in- strumental in redistricting his state in such a way that one of the districts had the shape of a lizard. When an artist saw the map of the new district, he declared, "Why, this district looks like a salamander," and gave it a few finishing touches with his pencil. The editor, in whose office the map was hanging, replied, "Say rather a gerrymander," and thus an ancient party practice was given a new name. See Readings, p. 219. 236 American Government and Politics ties at different sides of the state so connected as to crowd as many Democratic counties as possible into one district and tkus secure Republican seats in nearby districts by eliminating the vote of hostile localities."^ The Democrats in Indiana by a shrewdly arranged gerrymander were enabled to elect, in 1892, eleven congressmen with a total vote of 259,190, leaving only two congressmen to the Republicans, who cast a vote of 253,668, thus requiring 126,834 Republican votes, as against 23,565 Demo- cratic votes, to elect one congressman.^ The district system under the gerrymander has frequently resulted in the grossest misrepresentation of party strength in the CONGRESSIONAL DISTRICTS, SOUTH CAROLINA, 189a lABBCVILL *\^ V' CoiJIKMBIA^''<^. SUMTER •^M HOflRT )RANG£1 \ 2 - An illustration of " compact and contiguous territory.* ^ Reinsch, American Legislatures, p. 202. ^ Commons, Proportional Representation, 2d ed., p. 61. The Congress of the United States 237 House of Representatives. For example, in 1894, the Republicans, with a vote of 5,461,202, elected 245 Representatives; the Demo- crats, with 4,295,748 votes, elected 104 Representatives, and the Populists, with 1,323,644 votes, elected 7 Representatives, while the Prohibitionists, with 182,679 votes, elected none. In this election the Republicans, with 48.4 per cent of the total vote, elected 68.8 per cent of the members, while the Democrats, with 38.1 per cent of the vote, elected 29.2 per cent of the members, and the Populists, with 11.7 per cent of the vote, secured, only 2 per cent of the members. Taking the vote as a whole on a strict basis of equality of representation, the Republican majority of 134 should have been a minority of 7 as against all other parties.^ The term of the member of the House is two years — a short period which has received so much criticism recently that it is difficult for us to understand the necessity that led the authors of The Federalist to apologize for the action of the Philadelphia convention in not providing for annual elections. The system of biennial elections, coupled with the practice of not assembling a Congress until more than a year after its election, has had a most unfortunate effect upon the character of that body. Ordi- narily, when members take their seats,^ their term of office is practically half expired; and within a year, if they expect to con- tinue in Congress, they must enter into a campaign for renomina- tion and election. This may have a double effect. It diverts the attention and energy of the member from his official duties, and, if he is defeated, it leaves him disgruntled and more subject to pernicious influences. It is a well-known fact also that no mem- ber of Congress can exert a considerable influence during one term of service, since it requires a great deal of practical experience to discover the mysteries of congressional procedure and get a hearing from the leaders in the House.^ On the other hand there is no provision for a dissolution of the House or recall of members, and long terms might result in Congress frequently misrepresenting the country. The time, place, and manner of holding elections for Represent- ^ Commons, Proportional Representation, p. 58. It must be noted, how- ever, that the basis of representation is not the vote, but population. ^ Unless there is an earher special session. ^Readings, p. 254. 238 American Government and Politics atives may be prescribed by the state legislature subject to the pro- vision that Congress may at any time by law make or alter such regulations. For almost a hundred years congressional elections were held at different times and according to the different methods prevailing in the various states — the old system of viva voce voting being retained for a long time in some commonwealths. At length, Congress, by laws passed in 187 1 and 1872, provided that congressional elections should be by ballot and that they shouki occur throughout the Union at the same time, that is, on the Tuesday following the first Monday in November. An exception to the uniformity rule allows a few states to hold their elections somewhat earlier, according to their former custom.^ Party machinery has been developed in every state for nominat- ing candidates to the House of Representatives. Where the older methods have not been overthrown by primary legislation, candidates are nominated by district conventions of delegates representing units of local government within the congressional districts, such as counties in the regions more thinly populated, and assembly districts, townships, or wards in the more thickly settled areas. In a large number of states, however, including Wisconsin, Nebraska, Oregon, Kansas, and Oklahoma,^ the con- vention system has been abolished altogether, and an official di- rect primary election is provided for each party. Any member of any party who wishes to be a candidate for Congress must have his name put on the party primary ballot by petition, and at the primary election the party voters are given the opportunity to select from among the several candidates on this ballot.^ Repre- sentatives-at-large are nominated by state conventions or by state primaries. The House of Representatives and the Senate are the judges of the election, returns,''and qualifications of their own members, and therefore contested elections are not determined by a judicial tribunal as in England. The House has three committees on ^ On the qualifications for voters for Representatives, see above, p. 162, and below, chap, xxii, and Readings, p. 399. They are merely the qualifica- tions requisite for electors of the most numerous branch of the state legisla- ture. ^ See below, chap. xxx. 2 When a vacancy occurs in the House of Representatives by the death or resignation of a member, or in some other way, a special election is held. The Congress of the United States 239 elections/ whose duty it is to investigate election contests. The law requires any person intending to contest an election to serve notice on the member whose seat he claims, and to specify the grounds upon which he expects to rely. The member whose seat is contested must answer. Copies of the papers are trans- mitted to the House, and the clerk makes up the records of the case, which he reports to the House. These are referred by the Speaker to one of the three committees on elections; testimony is taken; the contestants are given an opportunity to be heard, and to be represented by counsel ; and on the basis of the evidence and pleadings, the committee presents to the House a report, which is usually accepted." Inasmuch as each committee on elections is composed of a majority of members from the domi- nant party, a contested election, where the case is not too glaring, is quite likely to be decided in the interests of that party. The Senate The Constitution prescribes that there shall be two Senators from each state, and in the Amendment clause it provides that no state, without its consent, shall be deprived of equal represen- tation in the Senate. This rule of absolute equality grew out of the fear of Maryland, Connecticut, and Delaware that the great commonwealths of New York, Pennsylvania, and Virginia would override them in federal matters; and out of apprehension entertained by the agricultural and slave-owning states that the numerical strength of the manufacturing and commercial states would lead to discriminating legislation. The result of this equality of representation in the Senate is a most glaring violation of the democratic principle of distributing representation with some regard to population. Thus it comes about that nine eastern states, Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, and Penn- sylvania, with a population of over 21,000,000 (1900), have only eighteen Senators; while nine western states, Montana, Wyoming, Colorado, Utah, Idaho, Washington, Nevada, Oregon, and CaUfornia, with a total population of less than 4,000,000, have the same number. New York, with over 7,000,000 inhabitants, * The Senate has one committee on elections. ^ The committee practically has the power of a court of law. 240 American Government and Politics has two, while the nine western states, with a little over half the inhabitants, have nine times the representation. Indeed, it is possible to select fifteen of the smaller states, with about 5,000,000 inhabitants, possessing fifteen times the weight of the state of New York in the Senate. "The senatorial representatives of those 5,000,000 would lack only a single vote of the number necessary to defeat some great treaty which the Senators of the other 70,000,000 night support. States having less than one-sixth of the population choose a majority of the entire Senate, while more than five-sixths of the people of the country are represented by a minority of that body. The state of Nevada under the last census had less than 43,000 people. If New York were permitted to have the same proportional representation in the Senate, it would have some 350 Senators."* In practice, however, we do not find an alignment of the Senators of the small states against those of the large states. The qualifications of the Senator are fixed by the Constitution. He must be not less than thirty years old, an inhabitant of the state for which he is elected, and a United States citizen of nine years' standing. The same question has arisen here as in the case of the House of Representatives,^ whether the Senate, under its power to judge of the qualifications of its members, can add any to those fixed in the Constitution. The correct answer to this question seems to have been made by Mr. Hopkins, in a speech of January 11, 1907, on the proposition to exclude Mr. Reed Smoot of Utah, on the ground that he was a polyg- amist. Mr. Hopkins says tljat neither the Senate, Congress, nor a state can add to the qualifications prescribed by the Constitution ; that the power given to the Senate is not to create Senators, but to judge whether they have the qualifications pre- scribed by the Constitution; that the Senate has no constitu- tional authority to inquire into the antecedents and early^ career and character of a Senator who applies for admission with the proper credentials of his state; that no Senator has ever been denied a seat in the Senate of the United States because of any lapse of career prior to his election by the state; and that the Senate should content itself with the exercise of its power to ^ Reinsch, Readings, p. 139. ^ Above, p. 233. It will be noted that the Senate did not adopt the prac- tice of the House, which was regarded as unconstitutional in many quarters. The Congress of the United States 241 expel a member for disorderly behavior whenever his conduct is such as to lower the standard of that body or bring it into disrepute. Under the Constitution, Senators must be elected by the state legislatures, and, until 1866, Congress left the several common- wealths to their own devices as to procedure; but in that year. Congress, under its power to determine the time and manner of electing Senators, prescribed a uniform method to be followed by all legislatures. It provided that the legislature, immediately preceding the expiration of the senatorial term, should proceed to elect the member on the second Tuesday after its meeting.^ Each house first takes a viva voce vote separately and if one person receives a majority of the whole number of votes cast in each house, he is declared elected; in case no person receives a majority at the separate balloting, or in case either house has failed to act as required by law, the two houses must then meet in joint assembly and elect by viva voce vote and majority count. Failing an election on the first day, the joint assembly must meet every succeeding day at noon and cast one ballot until a Senator is elected.^ Notwithstanding this formal provision of law. United States Senators are really selected by party caucus — where the system of direct nominations has not been adopted. That is, whenever there is a vacancy in the Senate, or the term of the Senator is about to expire, it is the practice of the members of the party having a majority in the legislature which is to elect to meet in caucus and agree in advance upon the candidate, whose nomination is then merely ratified by the formal vote in the legislature. "Deadlocks" are of frequent occurrence, however, in our state legislatures. One of the most famous occurred in the Pennsylvania legislature in 1899, when, on January 17, it began balloting for the purpose of selecting a successor to Senator Quay, cast daily ballots until April 19, and then adjourned the following day without having effected an election. A still longer and more notorious contest was waged in Delaware by ' Readings, p. 221, ' The same method of election is followed in the case of a vacancy caused by death or resignation. The certificate of election must be sent by the governor of the state to the President of the United States Senate. R 242 American Government and Politics Mr. J. E. Addicks, whose fight in the legislature lasted, with intermissions, from 1895. to 1903.^ During the past quarter of a century there has been an extended agitation for the popular election of United States Senators. The principle was adopted by the Democratic party at its na- tional convention in Denver, in 1908, and Mr. Taft in his accept- ance speech announced himself in favor of the reform, although it had not been specifically mentioned in the platform of his party. This agitation, however, has got beyond the stage of mere discussion. More than once the House of Representatives has passed a constitutional amendment in favor of popular election of Senators, but it has been unable to secure the approval of the Senate. The legislatures of more than two-thirds of the States have passed resolutions favoring the reform, but there is no indication that Congress will act on their recommendations. Many states have refused to wait on the tardy action of the amending process of the federal Constitution, and have proceeded to accomplish the desired result by independent action.^ United States Senators are now nominated by direct primary ^ in the fol- lowing states : ■ Alabama, Arkansas, California, Florida, Georgia, Idaho, Iowa, Kansas, Kentucky, Louisiana, Maryland, Michigan, Mississippi, Missouri, Nebraska, Nevada, New Jersey, North Dakota, Ohio, Oklahoma, Oregon, South Carolina, South Da- kota, Tennessee, Texas, Virginia, Washington, and Wisconsin. The laws for accomplishing this radical reform (which is inciden- tally contrary to the letter and spirit of the federal Constitution) fall into four general groups; but under all of them the legis- lature is supposed to ratify the will of the voters expressed at the polls. The first mode (common in the South) is illustrated by the Florida law of 1901, which is merely permissive: whenever the state executive, or standing committee of any party, wishes to take the sense of the party on the proper person to present as candidate for the United States Senate, due notice must be given ^ In case a vacancy in the Senate occurs when the state legislature is not in session the Governor may appoint a Senator to serve until the legislature meets. - The history of the movement for popular election of Senators up to 1905 is concisely summarized by Professor G. H. Haynes in the PoHtical Science Quarterly for December, 1905; see also his volume on the subject; for both sides of the question, see Readings, p. 226. ^ See below, chap. xxx. The Congress of the United States 243 the party voters; and whenever petitioned by a majority of the party, the committee in question must avail itself of the pro- visions of the law. The second method, adopted by the Illinois law of 1908,^ pro- vides for a direct party vote on the candidates for the United States Senate, but stipulates "that the vote upon candidates for United States Senator shall be had for the sole purpose of ascer- taining the sentiment of the voters of the respective parties." The expression of opinion at the primary, however, may or may not be held binding in practice; and was in fact disregarded by the legislature of Illinois in the case of the first and only election under the law. A third and still more definite type of direct nomination law is illustrated by the recent Kansas statute, according to which the candidate for United States Senator receiving the "highest number of votes of his party in the greatest number of repre- sentative and senatorial districts" is declared to be the nominee of his party — "it being the purpose and intention of this pro- vision," runs the act, "so far as the same is within the power of the legislature so to do, to give all electors of the state of Kansas the right to express their party choice for United States Senator, and to direct that the same be carried out by the party members of the legislature of the state." Thus is established a com- pulsory state-wide primary, the result of which is morally bind- ing on the legislature. The fourth plan, in force in Oregon and Nebraska, practically makes the direct election of Senators obligatory and certain. This plan embraces three distinct operations.^ In the first place, a direct primary is held for each party, at which the mem- bers are permitted to choose by ballot the party candidate for United States Senator. In the second place, the candidates of the several parties are then submitted to all the voters of the state at the regular election, and the candidate (whatever his politics) who receives the highest vote is declared to be the "people's choice." To make sure that the legislature will ratify the people's choice, an expedient has been devised for committing members of the legislature in advance. Candidates for the state legislature may indicate on the official election ballot ^ Declared unconstitutional in 1909 and reenacted in 1910. ' For a portion of this important act, see Readings, p. 225. 244 American Government and Politics whether or not they pledge themselves to vote for the popular choice whatever his political affiliations. As a rule the candi- dates, wishing to catch votes, pledge themselves in advance, not knowing how the popular election for the United States Senator will turn out. Thus occurred, in 1908, the strange spectacle of a Republican legislature choosing a Democrat, Mr. Chamberlain, to represent Oregon in the United States Senate. The term of the Senator is fixed at six years, and in practice Senators are far more frequently reelected than members of the House of Representatives. At least five Senators, Benton of Mis- souri, Morrill of Vermont, Allison of Iowa, Jones of Nevada, and John Sherman of Ohio, served thirty years or more. The- ten- dency toward reelection seems to be more marked in the smaller states, perhaps because competition is not so keen, and it is easier for a Senator to maintain his influence over the legislature. The terms of all the Senators do not expire at any one time, for the Senate is a continuous body, one-third of the members going out every two years, and, except in extraordinary cases arising from deadlocks, resignation, or death, it seldom happens that a state legislature is called upon to elect two Senators at the same time. At the first session of the Senate in 1789, that body di- vided its membership by lot into three classes, the seats of the first class being vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and of the third class at the expiration of the sixth year, thus making way for a renewal of only one-third of the Senate biennially. Members of the Congress of the United States are entitled to certain privileges by virtue of their position. First among these may be reckoned compensation. The Constitution pro- vides that Senators and Representatives shall receive a com- pensation for their services, to be ascertained bylaw and paid out of the treasury of the United States. Up until 185^, it was the custom to pay members a certain per diem allowance; ^ in that year a salary of $3000 per annum was voted; this amount was raised to $5000 in 1865; and increased in 1873 to $7500 — an increase whicK met such a public protest that it was repealed at the next session. In 1907, however, the salary of Senators and Representatives was again fixed at $7500 per annum, to which * A salary was voted in 1816, but the law was speedily repealed. The Congress of the United States 245 is added an allowance for clerk hire, stationery, and travelling expenses/ The second privilege enjoyed by members of Congress is free- dom from arrest during their attendance on the sessions of their respective houses, and in going to and returning from the same, in all cases except treason, felony, and breach of the peace. This privilege, as Story points out, exempts Representatives and Senators from all processes, the disobedience of which is pun- ishable by imprisonment. That is, a congressman, during the period mentioned above, cannot be compelled to testify in a court, serve on a jury, or respond to an action brought against him. The term "breach of the peace," however, extends to '' all indictable offences, as well those which are in fact attended with force and violence as those which are only destructive to the peace of the government"; and, therefore, the member of Congress really enjoys no exemption from the ordinary processes of the criminal law. In going to and coming from Congress the member is allowed reasonable delays and reasonable deviations from the nearest course. The third privilege enjoyed by members of Congress is free- dom of speech during debate. The Constitution expressly pro- vides that for any speech or debate no member of e^Jher house shall be questioned in any other place. This famous right, sup- posed by some persons to have been designed to guarantee full and free discussions of public matters in debate, is really derived from the practices of the English Parliament, where it was origi- nated to protect the members against arbitrary arrest for criti- cism of the king. According to Professor Ford, it was placed in the American Constitution to protect members against respon- sibility to their constituents.- The effect of this privilege is to free the members from the liability to prosecution for libel or slander for anything said in Congress, or in committees, in official * House of Representatives: (i) Salary — $7500. (2) Mileage. (3) Clerk hire — $1500 (this applies also to members-elect); the more important committees have separate clerks whose salaries range from $3000 to $200; some also have assistant clerks and a janitor. (4) Stationery. Sen/Cte: (i) Salary — $7500. (2) Mileage. (3) Clerk hire — $1800 (only for Senators who are not chairmen of committees) ; every committee has a clerk whose salary varies from $5000 to $2220; many also have assistant clerks and messengers. (4) Stationery. ^ Rise and Growth of American Politics, p. 63. 246 American Government and Politics publications, or in the legitimate discharge of their legislative duties. Members of Congress also constantly act upon the supposition that the privilege includes the right to circulate their speeches, not only among their own constituents, but any- where throughout the United States. The internal organization of each house of Congress is limited by certain provisions of the Constitution.^ The Vice-President of the United States is made the presiding officer of the Senate; ^ neither house can expel a member for a breach of its rules except on a two-lhirds vote, a quorum being present; each house must keep a journal of its proceedings and publish the same from time to time, except such parts as it may deem necessary to keep secret ; if one-fifth of the members present in either house demand a record of the yeas and nays upon the journal with regard to any question, that record must be taken by roll-call. Subject to these limitations, each house has the right to elect its own officers, compel the attendance of members, and prescribe rules of procedure and discipline. The power of Congress, in the course of its proceedings, to interfere with private citizens — a power which has, in times past, caused many serious constitutional conflicts in England — is clearly limited by our Constitution: neither house has any general power to punish outsiders for contempt, for such a power is judicial in its nature.^ Whenever the examination of private citizens, however, is necessary to the performance of regular legislative duties, it would appear that Congress may require the attendance of witnesses, and compel them to give testimony."* Each house may also punish its own members for disorderly be- havior, and, with the concurrence of two- thirds, expel a member; but it has been held by the Court that the power of Congress to punish its members or private citizens is confined to the session in which the condemnation occurs, and cannot extend beyond imprisonment during the remainder of that session. The quorum necessary to do business in each house ^ is fixed ^ Burgess, Political Science and Constitutional Law, Vol. II, p. 56. ^ He has no vote save in case of a tie. ' Readings, p. '138. * Reinsch, American Legislatures, p. 176. ^ When the House is once organized, the quorum consists of a majority those members, chosen, sworn, and Hving, whose membership has not be( The Congress of the United States 247 by the Constitution at a majority of all the members, but a smaller number may adjourn from day to day, and are authorized to compel the attendance of absent members. This question of the quorum is no formal matter. It is necessary to fix the number at a majority of the members in order to prevent "snap" legisla- tion by minorities, but the rule is often attended with serious in- conveniences. For a long time it was a common practice for the minority party in the House of Representatives, whenever it desired to delay business, to refuse to answer the roll-call, and thus frequently compel an adjournment, on the ground that there was no quo- rum present, until a quorum could be mustered. To stop this "filibustering," as these dilatory tactics were called. Speaker Reed, in January, 1890, held that members present in the House and declining to answer should be counted present in determin- ing the question of a quorum. Shortly afterward the House embodied this principle in a rule authorizing the clerk, on de- mand of a member or at the suggestion of the Speaker, to count as present those physically present but refusing to answer the roll-call. The present method of marshalling a quorum and deahng with delinquent members is illustrated by this brief ex- tract from the Congressional Record: — Mr. Williams: Mr. Speaker, I make the point of order that there is no quorum present. ... The Speaker: The Sergeant-at-Arms will close the doors and bring in the absentees, the clerk will call the roll, and those in favor of the passage of the bill will, as their names are called, answer 'aye,' and those opposed will answer 'no,' and those present and not voting will answer 'present.' . . . Assistant Sergeant-at-Arms Pierce: Mr. Speaker, in accord- ance with the rules of the House and the warrant of the Speaker, I present at the bar of the House, under arrest, Mr. Buckman and Mr. Rucker. The Speaker (pro tempore) : The gentlemen will be noted as pres- ent and discharged from arrest. . . . Does the gentleman from Minnesota desire to vote? Mr. Buckman: I vote 'aye.' ^ vacated by resignation or by the action of the house. Hinds, Precedents^ Vol. IV, p. 62. When a pxjint of order is made with regard to the quorum it must be that no quorum is present, not that no quorum has voted. Ibid. , p. 79. ^ Congressional Record, Vol. XL, part 8, p. 7585 (59th Cong., ist Sess.). 24^ American Government and Politics The Constitution requires an annual session of Congress, and provides that it shall begin on the first Monday in December, unless Congress, by law, shall appoint a different day. Each Congress, therefore, has normally two sessions. The first, known as the long session, begins in December of each odd year, 1909, 1911, 1913, etc., and extends theoretically until the following December, though as a matter of practice it is usually adjourned sometime in the spring or summer — in 1890 the long session was not adjourned until the first of the following October. The second session of each Congress begins in Decem- ber of each even year, 1908, 191 o, 1912, etc., and extends until the following March 4. Every Congress, therefore, expires at noon on March 4 of each odd year, thus giving the Presi- dent at the very opening of his administration a new Congress. By postponing the session until autumn the President has time to prepare for his legislative duties. It will be noted that, according to this arrangement, a member of the House of Representatives does not take his seat until more than a year after his election; that is, he is elected in November of the even year, and, unless a special session is called, does not begin his legislative work until one year 'from the December iijimediately following. Thus it happens that an expiring House sits for about four months after the election of the members of the new House, and an important measure may be passed by a party which the country has voted down at the preceding elec- tion. Congress may, accordingly, enact laws opposed to the latest expression of popular will. "Under the present law," said Mr. Shafroth, formerly a member of Congress, "a Repre- sentative in Congress who has been turned down by the people legislates for that people in the second regular session. A man who has been defeated for reelection is not in a fit frame of mind to legislate for the people. There is a sting in defeat that tends to engender the feeling of resentment, which often finds expression in the vote of such members against wholesome legislation. That same feeling often produces such a want of interest in pro- ceedings as to cause the members to be absent nearly all the second session. ... It is then that some are open to propositions which they would never think of entertaining if they were to go before the people for reelection. It is then that the attorney- ship of some corporation is often tendered, and a vote is after- The Congress of the United States 249 ward found in the Record in favor of legislation of a general or special character favoring corporations." ^ Special sessions of Congress may be called by the President under his power to convene either house or both of them on extraordinary occasions. This has been done a number of times, the most noteworthy occasjpn being the call of July 4, 1861, to prepare for the Civil War, and the most recent being the con- vening of Congress by President Taft in March, 1909, for the purpose of revising the tariff. The Senate is often called at the beginning of a new administration to confirm appointments. No provision is made in the Constitution whereby members of Congress can be instructed by their constituents, and it is held by many American publicists that a representative, though chosen by a district, is in reality a member of a national legislature bound to act on a broadly national poHcy. In practice, however, this theory is not always observed, for Senators and Representa- tives are often instructed by the legislatures of their states in solemn resolutions.^ There is, of course, no penalty for violating these instructions, because the state legislature cannot compel the resignation of a member of Congress. Nevertheless every congressman is extremely sensitive to the wishes of the leaders of his party in his community.. The difference in the organization of the two houses makes it necessary to say a few words by way of comparison.^ The Senate is, of course, the smaller body, being composed of ninety-two members, as against 391 members in the House of Representa- tives. The Senate, generally speaking, is also composed of older men and men of wider political experience. The Senators as a rule have been in some branch of state government or in the House of Representatives. As the term of service is longer and the chances for reelection greater, the Senate usually con- tains a relatively larger number of political experts, acquainted not only with the problems of law-making, but also with the inner workings of the federal government. The influence of the Senators is also augmented by their position as party leaders ' Shafroth, "When Congress Should Convene," North American Review, Vol. CLXIV. ^ Readings, p. 233. ' For the original purpose of the Senate, see Readings, p. 222. 250 American Government and Politics within their respective states. They have, as we have seen, a large power in appointing to federal office; and sometimes they are able to construct political machines of extraordinary strength.^ They usually have great weight in selecting delegates to national party conventions, and in fact they are largely responsible for the predominance of the federal office-holding element in those assemblies. This command over party resources within their states enables the Senators to bring more or less pressure on the members of their party in the House of Representatives. When the state organization, in close touch with its Senator or Senators, adopts a policy, it is usually wise for the member of the House of Representatives, if he expects further party favors, to fall in line with the poUcy.- This connection between the Senate and political leadership has resulted in bringing into that body a large number of men whose principal claim to the office is the power to manipulate the state political machinery. "The dominating influence of the Senate in this matter was never more clearly shown than in the Republican convention of 1900. Both the temporary and the permanent chairmen were Senators; the four nomination speeches were made by Senators; and there were seven Senators on the most important committee, that on Resolutions, which drafted the national platform. The National Committee ap- pointed by the convention contained five Senators, among them Hanna (as chairman) and Quay. The advisory council appointed by the National Committee had three senatorial members, among them Piatt and Depew; while Hanna, Quay, and Scott were members of the Executive Committee. So well organized was the senatorial group at this time, that the selection of the presidential candidate was largely determined by their discre- tion, both in 1896 and in 1900."^ The political power of the Senate is greatly augmented by its \ control over treaties and appointments.'* The Senate also derives no little influence through the connec- tion of some of its members with those powerful economic inter- ests which have operated largely through ^the extra-legal poUt- ^ Readings, p. 128. ^ See Article by H. L. Nelson, "The Overshadowing Senate," Century, Vol. LXV, p. 513. ' See Reinsch, American Legislatures, p. 121. ■• See above, pp. 191, 196. The Congress of the United States 25 1 ical organizations of the states.* A great deal of severe criticism has been launched at the Senate on this account; it has been named by journalists, "the millionaire's club." As a matter of fact, many of the Senators are wealthy, but no discriminating or intelligent critic beHeves that any considerable number of them are corrupt or men whose ideal is the use of their ofl5ce for the purpose of augmenting their personal riches. However, the Senators, as corporation lawyers and leaders in state poHtics, are necessarily brought into close touch with great corporate inter- ests, and as the hand is subdued to the dye in which it works, their views of government are colored by the economic environ- ment in which they move. "It is natural," says Professor Reinsch, "that the Senators should look upon political matters from the vantage ground of their special experience and of the interests with which they have been connected. There need be in this no suspicion of direct corruption; there may, in fact, often exist a conviction of absolute impartiality. Yet their attitude of mind and of temper is nevertheless characterized by that conservatism — often exaggerated — of the man to whom is intrusted the management of great economic interests. . . . There are Senators whose controUing purpose seems to be to protect and advance the interests of particular combinations of capital without any regard to the broader principles of states- manship or even to their plain duty as representatives of the commonwealth."^ On the other hand, President Woodrow Wilson believes that the Senate "represents the country, as distinct from the accumulated populations of the country, much more fully and much more truly than the House of Representa- tives does."^ Whatever may be the conclusion on this point, there can be no doubt that the Senate is assuming an ever larger share in shaping federal legislation. The unlimited debate in the Senate enables each member to hold up legislation, and especially appropriation bills, in favor of any particular interest which he may represent. Though the Constitution provides that revenue bills shall orig- inate in the House of Representatives, as a matter of fact the Senate, as we shall see, has an equal, and in many instances a * See Goodnow, Politics and Administration, pp. 251 ff. ^American Legislatures, p. 124. ^Constitutional Government in the United States, p. 116. 252 American Government and Politics far greater, power. As a matter of practice, also, the Senate usually increases the House appropriations, thus violating the ancient principle that burdens should be laid by those who are nearest to the tax-payers. The technical skill of the Senators, their long experience, and their superior legal talents frequently enable them to overshadow the House as a law-making body. Furthermore, owing to their relatively small number, they are able to give to measures more careful consideration; and for this reason some of the best of our legislation, at least on the technical side, comes from the Senate rather than from the House. CHAPTER XIII THE POWERS OF CONGRESS The Congress of the United States is limited to the exercise of the powers enumerated in the Constitution and the use o f the nieans necessary and proper to carry them into execution. In this regard, it stands in sharp contrast tothe ^Fng l ish Parliamen t — King, Lords, and Commons. The power and jurisdiction of that great assembly, as Blackstone tersely puts it, "is so tran- scendent and absolute that it cannot be confined, either for causes or persons, within any bounds. . . . Ij; hath sovereign and uncontrolled authority in making, confirming, enlarging, restrain- ing, abrogating, repealing, reviving, and expounding laws con- cerning matters of all possible denominations, ecclesiastical, or temporal, civil, miUtary, maritime, or criminal. ... It can regulate or new model the succession to the crown, as was done in the reign of Henry VIII and WiUiam III. It can alter the estabHshed religion of the land, as was done in a variety of instances in the reigns of Henry VIII and his three children. It. can change and create afresh even the constitution of the king- dom and of Parliaments themselves, as was done by the act of Union and the several statutes for triennial and septennial elec- tions. It can in short do everything that is not naturally impos- sible, and therefore some have not scrupled to call its power, by a figure rather too bold, the omnipotence of Parliament. True it is, that what ParHament doth, no authority upon earth can undo." Compared with this omnipotence, the powers conferred upon Congress by the Constitution seem few indeed; and, as a matter of fact, most of the great questions which have agitated Great Britain during the last century — ^^the extension of the suffrage, the regulation of factories and labor^ the provision of popular education, the estabUshment of old-age pensions — do not come within the range of federal authority at all, but are consigned to state legislatures and constitutional conventions. Neverthe- less, Congress enjoys no slight power, and the swiftly multiply- ing interstate relations, over which it has a wide authority, 253 254 American Government and Politics ^ are rapidly extending its control to social and economic matters of the most fundamental character. This restriction of legislative power by written law has a pro- found influence on the debates and deUberations of Congress, because every important controverted measure before that body is sure to be declared unconstitutional by some one. A measure may be wise, expedient, and even necessary, but if it is clearly outside the powers of the legislature, it is useless to discuss it. If, however, there is any doubt as to the constitutionality of a measure, it is sure to be the subject of searching inquiry and exposition on the part of the skilled lawyers in Congress. Some of the greatest legislative discussions in our national history, including the celebrated Webster-Hayne debate on Footers Resolution, have been over questions of constitutionality. It often happens that the original proposal itself is lost sight of in the tortuous windings of historico-legal speculations, as was indeed the case in the controversy just mentioned. The ten- dency to lengthy constitutional disquisition is especially marked in the Senate, where debate is less restricted, and there are more lawyers of distinction than in the House. These discussions are often of a high order and of undoubted value in expounding the terms of the Constitution, but they are also quite as often mere displays of black-letter lore or personal vanity. More than once the country has been impatient at these diffuse lucu- brations, rightly suspecting that many opposing members had first come to their conclusions on the merits of the bill under consideration, and then sought constitutional objections to it. More than once, also, these debates have only added confusion to what seemed perfectly clear and simple. "If we must wait until the great constitutional lawyers agree upon any subject," exclaimed Mr. Bourke Cockran in the House, "it is plain that we would never take a step in any direction. We would stand paralyzed at the threshold of every legislative enterprise, amazed and bewildered — : puzzled to distinguish amid the din of their vociferation how much of it is advice to us and how much of it is denunciation of each other. I defy any man to define Congress itself according to the constitutional lawyers, after he has read three of their speeches." ^ ^ Reinsch, Readings, p. 256. The Powers of Congress 255 Broadly speaking, there are three views of the Constitution which may be taken by any member of Congress in deciding upon a controverted constitutional question. The first of these is known as "strict construction," — a view which would restrict the powers of Congress to the bare letter of the written instrument, and confine the means of carrying its powers into execution to those absolutely and imperatively necessary. This theory of interpretation was applied by Jefferson in his opinion on the constitutionaHty of a federal bank,^ and was later used with great acumen by his party as the moral justification for their opposition to the FederaUsts.^ During the long contro- versy over slavery, it was the chief reliance of southern statesmen in resisting the northern pressure on Congress to use its powers as fully as possible in restricting the spread of slavery to the territories. With the disappearance of the old party antagonisms since the Civil War, there have not been many occasions to call the strict construction view into party services. The Democratic party, it is true, occasionally appears to oppose the encroach- ments of federal authority, but its concrete legislative proposals can hardly be regarded as consonant with a narrow conception of the Constitution. The second view of the powers of Congress, originally assumed by the Federalist party and taken on various occasions by all parties, as their interests have required, is that of "Hberal con- struction." The adherents to this doctrine deny that there is any warrant in the Constitution for taking the narrow view, and they lay great stress on that clause of the Constitution which authorizes Congress to make all laws necessary and proper for carr3dng into execution the powers expressly enumerated. They accordingly take a generous view of the enumerated powers, and then interpret the words "necessary and proper" to mean "highly useful and expedient."^ Under this construction, a national bank was created, American industries have been pro- tected, national highways built, paper money issued, and irriga- tion, reclamation, and other large schemes of public improvement undertaken.'* Only under this conception of the Constitution has the federal government been made in any way adequate to the exigencies of a national system of economy. * Readings, p. 237. ^ Ibid., p. 93. ^ Ibid., p. 240. * Ibid., pp. 66 and 241. 256 American Government and Politics The third vieW of the proper attitude to be taken by Congress in considering the constitutionality of any legislative proposition, and one which has been quite generally taken, consciously or un- consciously, by the liberal constructionists, was thus stated by Mr. Bourke Cockran, during a debate in the House: "It seems to me that the duty of Congress is to examine closely the con- dition of the country and keep itself constantly informed of every- thing affecting the common welfare. Wherever a wrong is found to exist with which the nation can deal more effectively than a state, it is the business of Congress to suggest a remedy. . . . Our first step must be in the direction of legislation. The only way we can ascertain definitely whether a law which we believe will prove Effec- tive is constitutional or unconstitutional is not by abandoning ourselves to a maelstrom of speculations about what the Court may hold or has held on subjects more or less kindred, but to legislate, and thus take the judgment of the Court on that specific proposal. We can tell whether it is constitutional or unconstitu- tional when the Court pronounces upon it and not before. Even if the Court declares it unconstitutional, its decision will not re- duce us to helplessness. When it drives us from establishing a remedy by legislation, it will, by that very act, direct us to propose a remedy byj:onstitutional amendment. Having framed a suit- able amendment and proposed it to the legislatures of the states, our duty will have been accomplished. The final step toward full redress will then be with the bodies most directly representative of the people affected by the wrong. " ^ Although the important functions of Congress will be treated more in detail in the chapters which follow, it seems desirable to give here, even at the risk of some repetition, a general survey of all the powers vested in our national legislature. Such a presenta- tion does more than satisfy the theoretical requirements of an academic presentation of the subject. A general view of all the powers of Congress is simply indispensable to an understanding of current politics, for questions of constitutionality underhe all of our political controversies over the powers of the federal and state governments, over centralization and state rights, over national and local reforms. Such a survey is rendered especially necessary by the altogether too widespread confusion which * Reinsch, Readings, p. 256. The Powers of Congress 257 exists among citizens as to the nature of the federal system. Every student of American government should have definitely and clearly fixed in mind the various powers conferred upon Congress — not as mere rules of law, but as great principles of political practice controlling the national legislature in its mani- fold relations to the life of the people in every territory and commonwealth of the American empire. I. In relation to revenue and expenditures. Congress has the power to lay and collect taxes^ duties, imposts, and excises, and to_ appropriate money, in order to pay the debts_ajid_proyide„f^ the comrnpn_defenceajid general welfare, of the United _States.^ This power is -not unlimited. JEndirect taxes, duties, imposts, and excises must be ^mj^orrn^ throughout, the United States — that is, must be imposed at the same rate on the same article wherever found.^ Poll taxes, taxes on real and personal prop erty, taxes on incomes from real and personal property, and other direct taxes,^ must be apportioned among the states ac- cording to population. Congress cannot tax exports from a state, and under an interpretation by the Supreme Court cannot tax the ''necessary instrumentalities" of a state government, such as the salaries of state and local officers, and state and municipal bonds. Appropriations for the army cannot be made for a period of more than two years, but otherwise the power of Congress to spend money is only controlled by its discretion.* II. In respect to national defence,^ the powers of Congress are practically unlimited, except by the provision that the Presi- dent shall be commander-in-chief and that military appropriations y shall not be made for a greater period than two years. Congress can raise and support armies, create and maintain a navy, and provide for the organization and use of the state militia. Con- gress also declares war, grants letters of marque and reprisal® ^ See below, chap, xviii. ^ Readings, p. 323. ' Ibid., pp. 327, 328. •• The account given here is based largely on Burgess, Political Science and Constitutional Law, Vol. II, chap. vii. ^ Below, chap. xvii. ' " "Privateering" (among the powers concerned) was abolished by the Declaration of Paris in 1856. While the United States did not sign that Declaration, it no longer grants letters of marque and reprisal. 258 American Government and Politics authorizing officers or private parties to capture property and persons subject to a foreign power; and m£^kes rules concerning captures on land and sea. We are accustomed to think of Germany as a country in which the military power of the government is enormous, but the legislature of that empire enjoys no such authority as the Con- gress of the United States. The German constitution contains a multitude of detailed provisions as to the liability of the citizen to military service, which the legislature cannot touch; but our Congress can call every able-bodied man into the national service without regard to the state militia, and keep him there as long as it is physically possible. There also ■ is no limit to the amount of money which can be appropriated for military pur- poses, or to the kind of military law which may be established. Moreover, the states are wholly at the mercy of the federal gov- ernment, for they can keep no standing army or ships of war in time of peace without the consent of Congress. In answer to the charge that such an unlimited power might lead to despotism, the defenders of the Constitution, during its ratification, urged: "With what color of propriety could the force necessary for defence be limited by those who cannot limit the force of offence ? If a federal constitution could chain the ambition, or set bounds to the exertions of all other nations, then, indeed, it might prudently chain the discretion of its own government and set bounds to the exertions for its own safety."^ III. In respect to commerce and business,^ Congress may regulate commerce with foreign countries, among the several states, and with the Indian tribes; make uniform laws on the subject of bankruptcy throughout the United States; fix the standards of weights and measures ; protect authors and invent- ors by a system of patents and copyrights; and estabHsh post- offices and post-roads. Commerce not only includes the trans- portation of commodities; it embraces traffic and intercourse in all of its important branches, such as the transportation of passengers, the transmission of telegraph messages, and the carrying of oil through pipe lines.^ It is sometimes stated that the power of regulating interstate and foreign ^ The Federalist, No. XLI. 2 See below, chap. xix. 3 Readings, p. 343. The Powers of Congress 259 commerce is vested exclusively in Congress, but the difficulty of determining when a state law constitutes such a regulation is so great that the mere statement does not carry any very concise information.^ The power of Congress over bankruptcy is not exclusive; the states may legislate on the subject. The federal law, however, takes precedence in case of a confhct with the pro- visions of a commonwealth law, and Congress by an act of 1898 has covered the entire domain of bankruptcy. With regard to weights and measures Congress could, if it saw fit, establish a uniform metric system throughout the United States, but it has only gone so far as to make the use of this system lawful, not obligatory.^ Meanwhile the regulations of the various states prevail, although the federal government aids in securing scientific exactness by maintaining in the Department of Com- merce and Labor a bureau of standards, the functions of which are the custody of the standards, the comparison of the standards used in scientific investigations, engineering, manufacturing, com- merce, and educational institutions, with the standards adopted or recognized by the government; the testing and cahbration of standard measuring apparatus; the solution of problems arising in connection with standards; the determination of physical constants, and the properties of materials which are of particular importance in science and manufacture. To facilitate the spread of uniform systems throughout the United States, the bureau is authorized to assist not only the federal government, but also state and municipal governments, educational institutions, and private concerns engaged in manufacturing or other pursuits requiring the use of standards. The latter are charged a fee for services rendered. The protection of authors and inventors by a system of copy- rights and patents is intrusted to Congress; but it is contended by some pubHcists that this power is concurrent and may be ex- ercised by any state so long as its laws do not contravene the ex- press provision of the federal law. This point, however, has not been authoritatively adjudicated.' For administrative purposes Congress has created a bureau of ■ Readings, p. 348. ' Electric measures have been made imiform, however. ' The power of Congress over trade-marks extends only so far as they are mvolved in interstate and foreign commerce. iSo American Government and Politics patents in the Department of the Interior, headed by a com- missioner, who administers the patent laws, issues patents for new inventions and improvements, and registers trade-marks, prints, labels, and the Hke.^ The working staff of the patent office is divided into a number of separate groups, each one of which has charge of some particular device or invention. Every application is recorded and referred to the appropriate group, which makes a search to see whether the claim is for a new invention and does not interfere with a prior patent. Nearly every inventor employs an attorney, although he is not required to do so, to assist him in prosecuting his claim. If an application is rejected, the applicant may appeal to the commissioner of patents and from his decision he may prosecute an appeal to the courts. If a patent is granted, it runs for a period of seventeen years, and extensions are sometimes made. Patents are promptly reissued, however, to remedy defects in the original specifications. The number of patents granted in 1800 was 41. The number of letters patent for the year ending June, 1908, was 34,902, exclusive of trade-marks, labels, etc.; in that year the number of applications for patents for inventions was 58,527.' The copyright law has been steadily extended to new devices, until it now covers not only books, but also works of art, maps, charts, musical compositions, and the like.^ For more than a century Congress extended copyright protection only to citizens and residents of the United States, and during that time American publishers, with a few honorable exceptions, regularly "pirated" the works of foreign authors, that is, published them in the United States without paying any royalty or other compen- sation. Under the act of March 3, 1891, it was at last provided that the citizens of any foreign state which gives to citizens of the United States the benefit of copyright on practically the ^ The first patent law was passed in 1790; in 1836 the ofiice of commissioner of patents was created; and in 1849 the patent bureau was transferred to the Departments of the Interior. ^ Reference: Report of the Commissioner of Patents (1908), an annual publica- tion. ' The term of a copyright is twenty-eight years with a possible renewal for twenty-eight years. Rights are secured not only to authors and inventors, but also to their heirs" and assigns. New law of March 4, 1909. The Powers of Congress 261 same basis as their own citizens, may be given the privileges of our copyright laws. As a result, citizens of the United States may claim the protection of foreign countries coming under the terms of the act, and citizens of foreign countries in turn may obtain the protection of our laws. The administration of the copyright law is in the hands of the registrar of copyrights, who works under the direction of the librarian of Congress.^ Every applicant re- ceives his copyright, for no attempt is made by the division of copyrights to examine into questions of infringement as in the case of patents. While the power to estabHsh post-ofiices and post-roads is separately conferred upon Congress, it may be regarded, for prac- tical purposes, in connection with the power to regulate commerce. The estabUshment of post-ofl&ces and post-roads is exclusively a federal matter, and it must be noted that the power of the federal government covers the whole domain of mail transportation, -vyithin each state as well as among the states.^ IV. The direct power of Congress, as a body, over foreign relations is sHght, because the President and Senate have the treaty-making power, and the President is our official spokesman in the conduct of all business with foreign countries. Congressj however, may, as we have seen, regulate foreign commerce, in- cluding the important branch of immigration; create consular j and diplomatic posts abroad and provide the emoluments there- unto attached; define and punish piracies and felonies committed on the high seas and offences against the law of nations. Con- gress may also establish a uniform rule by which the subjects of foreign powers may become citizens of the United States. While this power of prescribing the conditions for naturalization is regarded as being vested exclusively in Congress, it must be re- membered that the states may, and many of them do, confer on aliens the right to vote.^ 4 V. The regulation of the monetary system is vested exclusively \ f in the federal legislature.'* Congress has power to coin money, \ regulate its value, and the value of foreign coin. States are for- ' j I * Reference: Report of Copyright Legislation by the Registrar of Copy- rights (1904) — a government publication. ^ See below, p. 394. ^ See Readings, p. 144, * See below, p. 374. 262 American Government and Politics bidden to coin money, emit bills of credit, or make anything but the gold and silver coin of the United States a tender in the pay- ment of debts. There is nothing in the Constitution expressly authorizing Congress to create paper money, but it has exercised this power and has been sustained by a decision of the Supreme Court.^ VI. The power of Congress to define crimes and provide pun- ishments for them is narrowly limited. The high crijne of trea- son, as indicated above, ^ is expressly defined in the Constitution: it consists only in levying war against the United States, adhering to its enemies, or giving them aid and comfort. Congress can- not therefore make any offence which it chooses treason. Congress may provide for punishing counterfeiters and persons cornmitting crimes on the high seas or offences against the laws of^ nations.^ " These are the only crimes committed within the com- monwealths, " says Professor Burgess," concerning which Congress has the power to legislate;" but it should not be forgotten that in the exercise of its express powers. Congress may define certain crimes against federal laws and provide penalties. For example, it has provided punishment for theft and other offences connected with the transportation of mail matter. If Congress did not have this power of penalizing offenders against federal law, the authority of the United States government would be nullified.^ Hence we may say that Congress may define crimes against fed- eral laws duly passed under the terms of the Constitution, al- though it has no power of defining crime in general. This power is left to the states; it is for them to determine what particular classes of actions shall be deemed crimes, and as a result we have the greatest divergences, — certain actions being crimes in one state and innocent in others. In this respect the American fed- eral system differs fundamentally from the German system, for the German imperial legislature has the power to regulate the whole domain of civil and criminal law and judicial organization and procedure throughout the empire. * See Readings, p. 241, ^ Above, p. 149. ' Congress may of course define crimes in the territories and districts directly imder the government of the United States. * Readings, p. 244. The distinction should be noted, however, between a code of criminal law and ordinary laws with penal sanctions attached. The Powers of Congress 263 VII. The government of the territories and districts belong- ing to the United States is vested in the federal authorities. Congress has the power to dispose of and make all needful rules and regulations respecting the territory or other property belong- ing to the United States, to exercise exclusive legislation in all cases whatsoever over the District of Columbia, and over all places purchased by the federal government (with the consent of the state legislatures concerned) for the erection of forts, maga- zines, arsenals, dockyards, and other needful buildings. In the exercise of this authority over territories and districts, Congress combines the power of the federal government with that of a state government, subject to the fundamental limitations in the Constitution which forbid it to do some things that states are not forbidden to do — for example, establish a press censorship or official religion.^ The right to admit new states and supervise the organization of territories into states is also vested in Congress; and the process to be followed in the admission or organization of a new state is left to the determination of that body.^ VIII. Notwithstanding the theory of the separation of powers. Congress may to some extent control the various execu- tive departments by statutes regulating even the minutest duties of the Cabinet officers. As we have seen, the Constitution merely hints at the existence of the executive departments; but the power to determine the number of such departments and to pro- vide for the internal organization of each is, nevertheless, exer- cised by Congress. How far it may use this authority to control the President's high personal advisers is a matter of dispute that cannot be settled by any abstract definitions; ^ but it may exercise a substantial dominion over executive departments under its power to fix salaries and define duties. IX. Congress may also exercise in practice a large power over the federal judiciary, notwithstanding the theoretical indepen- dence of that branch of the government; because it may determine the number of Supreme Court judges, fix their salaries, subject to certain limits, and define their appellate jurisdiction. The cre- ation of inferior federal courts is subject to its power; and it may define the jurisdiction and procedure of these courts and provide the methods by which cases may be drawn from the state courts * See below, p. 418. ^ Below, chap, xxii, ^ See above, p. 215. 264 American Government and Politics into the federal courts. A notable example of the exercise of the power of Congress over our federal judicial system is afforded by the Judiciary Act of 1789, providing, among other things, the way in which state statutes could be brought into the federal courts, and their vahdity tested.^ Another important power vested in Congress is that of provid- ing the precise manner in which the acts, records, and judicial proceedings of each state shall be given full faith and credit in every other state.^ X. In addition to controUing, to a limited extent, the federal judicial system, Congress itself enjoys the power of removing the civil officers of the United States by the process of impeach- ment,^ but in practice this power is of sUght importance. In try- ing cases of impeachment, the Senate acts as the high court.* When the President of the United States is being tried, the Chief Justice of the Supreme Court presides. It requires a two-thirds vote of the members present to convict. The power of preferring and prosecuting charges against of- fenders is vested in the House of Representatives. In practice, whenever the House decides to bring any federal officer before the bar of the Senate, it adopts, by resolution, articles of impeach- ment charging the particular offender with certain high crimes and misdemeanors and enumerating with more or less detail his particular offences. It thereupon chooses leaders to direct the prosecution before the Senate, and the case is then conducted very much in the form of a trial in an ordinary court. The prose- cution states its case; witnesses for and against the accused are heard; and attorneys on both sides make their arguments. When the case is fully presented the Senators vote, and if two- thirds of the members present concur in holding the accused guilty, he stands convicted; but in case of failure to secure the requisite two-thirds, he is acquitted. The penalty which the Senate can impose upon any person * On the power of Congress over the judiciary, see below, p. 294. ^ See above, p. 158. ^ On this subject see the careful survey, " The Law of Impeachment in the United States," by Professor D. Y. Thomas, Political Science Review for May, 1908, pp. 378 ff. * Technically, however, it only sits as the Senate. In 1868 it ceased to call itself " a high court of impeachment." The Powers of Congress 265 convicted in case of impeachment is strictly limited to the re- moval of the offender from office and the imposition of a disquali- fication to hold and enjoy any office of honor, trust, or profit imder the United States. Any person convicted, however, is still liable, after his removal from office, to indictment, trial, judgment, and punishment for his offence according to law. It is not obhgatory upon the Senate to disqualify the convicted person from entering the federal service in the future, but in any case he must be immediately removed from office. The jurisdiction of the Senate as a court of impeachment ex- tends only over the President, Vice-President, and the civil offi- cers of the United States, and over the offences of treason, bribery, or other high crimes and misdemeanors. Treason is, of course, de- fined in the Constitution; and the meaning of the term " bribery" is clear to all. The phrase "other high crimes and misdemean- ors," however, is somewhat vague, and Congress might give a loose interpretation to it, even going so far as to treat the neglect of official duty as a ground for impeachment. Nevertheless, a conservative interpretation has generally been placed upon this phrase, so as to hmit the offences, which render an officer liable to impeachment, to crimes and misdemeanors as understood in the ordinary law of the land.^ * The Senate has sat as a Court of Impeachment in the cases of the fol- lowing accused oflScials, with the result stated and for the periods named: William Blount, a Senator of the United States from Tennessee; charges dismissed for want of jurisdiction, he having previously resigned; Monday, December 17, 1798, to Monday, January 14, 1799. John Pickering, judge of the United States district court for the district of New Hampshire; removed from office; Thursday, March 3, 1803, to Monday, March 12, 1804. Samuel Chase, Associate Justice of the Supreme Court of the United States; acquitted; Friday, November 30, 1804, to March i, 1805. James H. Peck, judge of the United States district court for the dis- trict of Missouri; acquitted; Monday, April 26, 1830, to Monday, January 3i» 1831. West H. Humphreys, judge of the United States district court for the middle, eastern, and western districts of Tennessee; removed from office; Wednesday, May 7, 1862, to Thursday, June 26, 1862. Andrew Johnson, President of the United States; acquitted; Tuesday, February 25, 1868, to Tuesday, May 26, 1868. William W. Belknap, Secretary of War; acquitted; Friday, March 3, 1876, to Tuesday, August i, 1876. Charles Swayne, judge of the United States district court for the 266 American Government and Politics Federal military officers are exempt from this jurisdiction, being subject to courts-martial. Members of Congress are also exempt, for they are not technically "civil officers," and further- more they are under the control of their respective houses — each house having the power to determine its rules and proceedings, punish its members for disorderly behavior, and, with the con- currence of two-thirds, expel a member. XI. In carrying into execution the powers vested by the Con- stitution in the government of the United States or in any depart- ment or office thereof. Congress may make all laws which shall be deemed "necessary and proper." The courts have, in gen- eral, given a Uberal interpretation to this phrase. The Supreme Court has repeatedly declared that Congress possesses the right to use any means which it deems conducive to the exercise of any ex- press power. Said the Court in the case of Juilliard v. Greenman : * "The words 'necessary and proper' are not limited to such meas- ures as are absolutely and indispensably necessary, without which the powers granted must fail of execution; but they include all the proper means which are conducive or adapted to the end to be accomplished and which, in the judgment of Congress, will most advantageously effect it." northern district of Florida; acquitted; Wednesday, December 14, 1904, to Monday, February 27, 1905. Congressional Directory (1909), p. 169. ^ no U. S. R., 421; Readings, p. 245. CHAPTER XIV CONGRESS AT WORK To the average observer, Congress is a vast and complicated legislative organ, with rules, committees, and methods, beyond the ken of ordinary mortals; but a somewhat careful examina- tion of the procedure of that body from day to day reveals cer- tain principles and practices which, when properly grasped, make the working scheme of the organization fairly clear — at least clear enough for the citizen who does not intend to become a legislator but merely wishes to watch the operations of the na- tional lawmakers with a reasonable degree of understanding. Party Organization and Leadership in Congress I. The first fact to be grasped is that the jvQrlyjlg methods of Congress are Jargely determined by the existence of two political parties — one, a majority in control of .one or both houses and regarding itself as responsible for the principal legislative poli- cies; the other, aminority, in opposition, bound under ordinary circumstances to criticise and often vote against the measures in- troduced and advanced by the majority. In England, the polit- ical party organization is carried frankly into the House of Com- mons, where the majority and minority sit facing each other, and where the government is avowedly that of the predominant party — a government of men, not even theoretically of con- stitutional law. In the United States, the party rules none the less, but its organization and operations are, as we have seen,^ un- known to the formal law of the federal Constitution. It is true that the votes on measures in Congress are by no means always cast according to party divisions, but it is likewise true that the principal legislative work of a session is the work of the majority party, formulated by its leaders, and carried through under their direction.^ This is not all. Each party in the Senate and the House is * Above, chap. vi. ^ For the part of the President as poUtical leader, see above, chap. be. 267 268 American Government and Politics organized into a congressional caucus/ in which is frequently determined the line of party action with regard to important leg- islative questions. It is in a party caucus before the opening of each Congress, that the majority in the House chooses the Speaker and the minority decides upon its leader whom it formally pre- sents as a candidate for Speaker, knowing full well that he cannot by any chance be elected. It is in the caucus that the majority decides whether it will adopt the rules of the preceding Congress or modify them; and it is seldom that the decision of the caucus is overthrown. The caucus is definitely organized under rules by which party members are expected to abide, although there are often a few "insurgents" who insist on acting independently on some matters. The exact weight of the caucus in determining party policy is difficult to ascertain. At times in our history, undoubtedly, the caucus has settled fundamental matters of public interest before they were introduced into Congress, but there is reason for believ- ing that its influence has been declining within recent years on account of the rise to power in each house of a few men whose long service, shrewdness in legislative management, and effec- tive leadership have placed them in control of the speakership and the great committees. How this is working out in the Senate is indicated by this pas- sage from a speech made in that body in 1908, by Senator La FoUette. "I attended a caucus at the beginning of this Congress. I happened to look at my watch when we went into that caucus. We were in session three minutes and a half. Do you know what happened? Well, I will tell you. A motion was made that somebody preside. Then a motion was made that whoever pre- sided should appoint a committee on committees; and a motion was then made that we adjourn. Nobody said anything but the Senator who made the motion. Then and there the fate of all the legislation of this session was decided. . . . Mr. President, if you will scan the committees of this Senate, you will find that a little handful of men are in domination and control of the great legislative committees of this body, and that they are a very limited number." ^ ^ Readings y p. 247. The caucus is held behind closed doors, but its de- liberations are seldom withheld from the public. ^ Reinsch, Readings, pp. 168-169. Congress at Work 269 In the House, the directing power seems to be unquestionably concentrating in the Speaker, the majority members of the com- mittee on rules, and the chairmen of the important committees.* The positive leadership of these men seems to be definitely recog- nized. They, and such party members as are of unquestioned weight in the House, are gradually working toward something like a cabinet system of government, in which they formulate the policies and bring the other party members into line by the many methods known to politics.^ Indeed, a recent writer goes so far as to say that the party caucus is now merely held for the information of the leaders of the House and is "intended rather to furnish a vent for excited feeling and to measure and sum up the relative strength of differ- ent opinions, than to frame a policy upon which the party will unite." ^ The Mass of Business before Congress II. The second important fact to grasp is that each session of Congress is confronted by an enormous amount of business — from five to tw^enty^ times as much as can be considered ade- quately.' Any member may introduce as many bills as he pleases by handing them to the clerk if they are of a private nature, or to the Speaker if they are of a public character. He does not have to secure any permission in advance or assume any re- sponsibility for them, even though they may involve heavy charges upon the public treasury. This looks like a fair, just, and simple matter, but in fact it is largely responsible for the extravagance and confusion that exist in the federal government and for the iron-bound methods that are followed in the procedure of the House. Inasmuch as each member has a large number of special appropriations for his own particular district, he is always willing to be generous with the claims of other members in return for a favorable consideration of his own. This practice of cooperating in securing appropria- tions is known as "log-rolling" — a term derived from pioneer * It is difficult to say what will be the eflFect of the action of the House in making the committee on rules elective. Below, p. 283. ^ For the elements of control in the EngUsh Cabinet, see Lowell, Govern- ment of England, Vol. I, pp. 448 ff. See Reinsch, Readings, p. 292. ^ H. L. Nelson, in the Century Magazine, Vol. LXIV, p. 169. 270 American Government and Politics times when frontiersmen helped one another in rolling logs, mak- ing clearings, and building cabins. It is owing to this system that national interests are largely subordinated to particular and local interests. The way in which this pressure for appropriations operates can best be illustrated by the following Ust of bills relative to a single locality, introduced on December 6, 1909: — By Mr. Clark of Florida: A bill (H. R. 12293) to establish a fish hatchery and biological station in the Second Congressional District of Florida — to the Committee on the Merchant Marine and Fisheries. Also, a bill (H. R. 12294) to establish a fish-hatching and fish- cultural station on the St. John's River, in the State of Florida — to the Committee on the Merchant Marine and Fisheries. Also, a bill (H. R. 12295) to provide for the erection of a sub- treasury building and the establishment of a sub treasury at Jackson- ville, in the State of Florida — to the Committee on Public Buildings and Grounds. Also, a bill (H. R. 12296) to provide for the erection of a public building at the city of Palatka, in the State of Florida — to the Com- mittee on Public Buildings and Grounds. Also, a bill (H. R. 12297) to require the Secretary of Agriculture to make monthly reports as to the sea-island cotton, pineapple, and orange crops — to the Committee on Agriculture. Also, a bill (H. R. 12298) to extend the provisions of the existing bounty-land laws to the officers and enlisted men and the officers and men of the boat companies of the Florida Seminole Indian wars — to the Committee on the Public Lands. Also, a bill (H. R. 12299) to extend to the veterans of the several Seminole Indian wars and to the widows of the veterans of the several Seminole Indian wars the benefits of the act of Congress of February 6, 1907 — to the Committee on Pensions. Also, a bill (H. R. 12300) granting pensions to the soldiers of the different Seminole Indian wars and their widows — to the Committee on Pensions. Also, a bill (H. R. 12301) to provide for and levy an import duty on Egyptian and other long-staple cotton imported into the United States from foreign countries — to. the Committee on Ways and Means. Also, a bill (H. R. 12303) for the relief of the State of Florida — to the Committee on War Claims.* This is no exceptional list, and is not printed here for the pur- * Congressional Record for December 6, 1909. Congress at Work 271 pose of criticising Mr. Clark, but only to indicate the nature of the system which has well-nigh degraded the House of Repre- sentatives into a group of astute wire-pullers whose tenure of position and standing with their constituents depend, not upon their high abilities for dealing with really great issues, but upon the success with which they may secure appropriations for selfish local interests — to use the congressional phrase, "get pork out of the public pork-barrel." It is idle, however, to criticise members of Congress, for they are not individually at fault. Any one of them who refused to join in this general scramble for the division of spoils would find himself speedily retired by the organized element among his constituents, and perhaps by the vote of his constituents, for they are generally prone to measure the achievements of their Representative by the amount of "pork" which he secures for the district. There is no use, let it be repeated, in criticising members of Congress. The system, as Professor Henry Jones Ford points out, is at fault.^ As long as any member of Congress may introduce measures carrying a charge upon the public treasury and as many other bills and resolutions as he pleases, just so long will the log-rolling process continue, and the House of Representatives be so overwhelmed with business as prac- tically to destroy its functions as a dehberative assembly.^ The following measures were introduced into the House during the Fifty-ninth Congress: 26,154 bills, 257 joint resolutions, 62 concurrent resolutions, 898 simple resolutions, and 8174 reports. During this Congress, 692 pubUc bills and 6940 private bills, principally pension measures, were passed. The power to select from this enormous mass before the House must be vested in the hands of some person or group of persons, for the selection cannot be made openly on the floor by any automatic process which brings every measure to the consideration of that body. These persons invested with the power of selection in the House must of necessity be leaders among the majority party, for that party assumes responsibility before the country for the results of a leg- islative session. In the House these leaders are the Speaker, * Budget Control in the United States (in press) ; the Blumenthal lectures at Columbia University for 1909. ^ Readings f p. 269; below, pp. 365 ff. 272 American Government and Politics I the committee on rules, and the chairmen of the principal com- mittees to which bills are referred; and the rules provide ways by \ which they can make selections of business for consideration and \ limit the amount of time which may be consumed in debate on each measure. The Rules of the House of Representatives III. The rules, therefore, must enable the presiding officer of the House to prevent the consideration of any motion introduced merely for the purpose of delaying business. They must limit, or make provision for limiting, the amount of time which may be consumed in debating any particular matter. They must pro- vide some way in which the party leaders can force the considera- tion of certain measures whenever they see fit. These principles have slowly been evolved in the development of the House of Representatives, and are now written in the rules of that body. I. In the first place, the Speaker of the House may refuse to put motions which he regards as dilatory; tliat is, designed merely to delay business. The immediate cause for the adoption of this principle was the practice of filibust-ering * by the minority or by small groups. In the Fiftieth Congress, on one occasion, the " House remained in contin- uous session eight days and nights, during which time there were over one hundred roll-calls on the iterated and reiterated motions to adjourn and to take a recess, and their amendments. On this occasion the reading clerks became so exhausted that they could no longer act, and certain members, possessed of large voices and strenuous lungs, took their places. If this was not child's play, it would be difficult to define it. Then, again, when a measure to which the minority objected was likely to pass, the yeas and nays would be ordered." ^ In the succeeding Congress, of which Mr, Thomas B. Reed was ^ In ordinary use, the word " filibuster " means to act as a freebooter or buccaneer, but in parliamentary practice it means " to obstruct legislation by undue use of the technicalities of parliamentary law or privileges, as when a minority, in order to prevent the passage of some measure obnoxious to them, endeavor to tire out their opponents by useless motions, speeches, and objections." Frequently, the purpose of a filibuster is to call the atten- tion of the country in an emphatic way to the policy of the majority. ^ Reinsch, Readings, p. 238. Congress at Work 273 Speaker, the Republicans had only a narrow majority, and it soon became clear that the opposing party, by putting dilatory motions and refusing to answer to the roll-call on a quorum, could prevent the majority from doing any business at all. It was under these circumstances that Speaker Reed, in January, 1890, refused to put motions which he regarded as purely dilatory, and was sustained by the House. Mr. Reed defended his ruling as follows: — The object of a parliamentary body is action, and not stoppage of action. Hence if any member or set of members undertakes to oppose the orderly progress of business even by the use of the ordinarily recognized parliamentary motions, it is the right of the majority to refuse to have those motions entertained and to cause the public business to proceed. Primarily, the organ of the House is the man elected to the speakership; it is his duty in a clear case, recognizing the situation, to endeavor to carry out the wishes and desires of the majority of the body which it represents. Whenever it becomes apparent that the ordinary and proper parliamentary motions are being used solely for the purposes of delay and obstruction; . . . when a gentleman steps down to the front amid the applause of his associates on the floor and announces that it is his intention to make opposition in every direction, it then becomes apparent to the House and the community what the purpose is. It is then the duty of the occupant of the Speaker's chair to take, under parliamentary law, the proper course with regard to such matters. This principle was shortly afterward (1890) embodied in the rules, and the Speaker now has regular sanction for refusing to en| tertain purely dilatory motions. However, the constitutional right of a member to demand the yeas and nays cannot be denied even if the purpose is dilatory.^ 2. In the second place the Speaker may count as present those members who are physically present but refuse to answer to their names on a roll-call for the purpose of compelUng an ad- journment in the absence of a quorum. This principle was es- tabUshed by Speaker Reed about the same time as the ruHng on dilatory motions, and also embodied in the revision of the rules of that year.^ ' On this important subject, see Hinds, Precedents of the House of Repre- sentatives, Vol. V, pp. 353 ff. 2 See above, p. 247. T 274 American Government and Politics i 3. In the third place, the rules provide a method for auto- matically shortening debate by prescribing that the time occupied i by any member in discussing a legislative proposition shall not ex- \ ceed one hour. This limit was imposed in 1841, and at the time Senator Benton declared that it was "the largest limitation upon the freedom of debate which any deUberative assembly ever im- posed upon itself, and presents an eminent instance of permanent injury done to free institutions in order to get rid of a temporary annoyance." It is difficult to see, however, in what way the House could meet the enormous pressure upon it, if any member from among the 391 could talk as long as he pleased on any measure. A member may, if he chooses, yield a portion of his time to some other member or members wishing to speak on a measure, but he may occupy no more than one hour, except by obtaining unani- mous consent. Neither may he speak twice upon the same measure unless he introduced it, or is the member reporting it from committee. When going into the committee of the whole,* the House fixes the time of debate, which cannot be extended by the committee; and in many other ways freedom of debate is arbitrarily limited. 4. In the fourth place, in order to enable party leaders to force the consideration of certain measures whenever they see fit, the following committees may report on the subjects enumerated practically at any time in the course of the procedure of the House, no matter what may be under discussion : the committee on rules may report on rules, joint rules, and order of business;^ the committee on elections, on the right of a member to his seat; the committee on ways and means, on bills raising rev- enue; the committees having jurisdiction of appropriations, on the general appropriations bills; the committee on rivers and har- bors, bills for the improvement of rivers and harbors; the com- mittee on the public lands, bills for the forfeiture of land grants to railroad and other corporations, bills preventing speculation in * The committee of the whole forms a convenient body for discussion and provisional voting on measures. In it, 100 constitute a quorum and the Speaker's chair is taken by some other member. Measures approved in it are reportied to the House for formal adoption. ^ It is always in order to call up for consideration a report of the committee on rules. The position of this important committee is considered below (p. 283) in connection with the Speaker. Congress at Work 275 public lands, and bills for the reservation of the public lands for the benefit of actual and bona-fide settlers; the committee on territories, bills for the admission of new states; the committee on enrolled bills, enrolled bills; the committee on invalid pensions, general pension bills. The Senate also has its code of rules, but it has not adopted any of the drastic methods obtaining in the House.^ When the Senate rules were revised in 1806, the right to move the previous question, and thus close debate summarily, was omitted, and all attempts to restore it have failed. Ordinarily the method of obstruction in the Senate is prolonged speaking, and any member endowed with sufficient physical endurance may prevent a meas- ure from coming to a vote, and thus compel the majority to capit- ulate. In 1908, however, the Senate, to defeat the tactics of Senator La FoUette, who wished to prolong the debate on a cer- tain measure, applied the following principles: (i) The presiding officer may refuse to comply with a demand for a roll-call on a quorum, if, on a count, he finds a quorum present; (2) the ques- tion of "no quorum" cannot be again raised after the roll has been called and a quorum found present, unless some legislative business other than mere debate has intervened; (3) the dor- mant rule that a Senator may not speak on the same subject more than once on the same day may be revived at any time.^ The practice of unlimited debate in the Senate often has an important influence on the course of legislative business.^ A^ Senator may have some particular appropriation in favor of his state which he wishes to insert in the general appropriation bill; and toward the closing hours of the session he may threaten to block everything by exercising his right to speak indefinitely until the Senate yields. This must of course bring the House to terms also ; and on more than one occasion the House has been forced either to acquiesce in an appropriation which it did not favor, or incur the risk of having some of its important measures held up by recalcitrant Senators.* * See Wilson, Constitutional Government in the United States, chap. v. * Reinsch, Readings, p. 156, for this important matter. ^ The caucus of the majority of the Senate has a "steering committee" which performs analogous functions to those performed by the committee on rules in the House. See below, p. 283. * Reinsch, Readings, p. 135. 276 American Government and Politics The direction of business in the Senate is in the hands of the chairman of the majority caucus and his immediate friends. The general direction and coordination of legislative business in both houses is vested in an unofficial "steering committee" composed of several leading Senators and the six majority members of the House committee on rules. The Committees of Congress} IV. As a part of the general process by which the houses endeavor to meet the business coming before them, there has been evolved an extensive committee system. The student of ^pur national government should, therefore, bear in mind that the legislative work of each house is largely done by committees, and ^ In December, 1909, there were seventy-two standing committees in the Senate and sixty-one in the House. The following table gives the most important committees, the name of the chairman of each, and the length of his service in Congress: — Senate Appropriations: Hale of Maine — since 1881. Commerce: Frye of Maine — since 188 1. Finance: Aldrich of Rhode Island — since 1881. Foreign Relations: Cullom of Illinois — since 1883. Interstate Commerce: Elkins of West Virginia — since 1895. Judiciary: Clark of Wyoming — since 1895. Military Affairs: Warren of Wyoming — since 1895. Naval Affairs: Perkins of California — since 1893. Public Expenditures: Hale — since 188 1. Rules: Crane of Massachusetts — since 1904. House of Representatives Appropriations: Tawney of Minnesota — nine terms. Banking and Currency: Vreeland of New York — six terms. Foreign Affairs: Perkins of New York — five terms. Interstate and Foreign Commerce: Mann of Illinois — seven terms. Judiciary: Parker of New Jersey — eight terms. Military Affairs : Hull of Iowa — ten terms. Naval Affairs: Foss of Illinois — eight terms. Rivers and Harbors: Alexander of New York — seven terms. Rules: Dalzell of Pennsylvania — twelve terms. Ways and Means: Payne of New York — thirteen terms (not continuous). The number of members on the several committees varies, but on the most important it ranges from four or five to nineteen. The rules committee in the House has ten members. Congress at Work 277 -that each committee is controlled by a majority of members representing the dominant party. In the lower house, the committees and their chairmen are named by the Speaker/ but he has by no means a. free hand, for the supporters of his candidacy for this high office are not unmind- ful of their pound of flesh. The Speaker must also take into ac- count the interests of his party, and as a general rule the men who have served the longest terms, i.e., shown their practical talent in retaining an exceedingly slippery office, are appointed to the leading positions on committees.- In the Senate the committees are nominally chosen by the body itself, but in reality the majority of each committee is named by a committee on committees selected by the caucus of the ma- jority party in that house. A committee of the minority caucus likewise selects the committee members from that party. The task of arranging and rearranging committees, says Mr. Hale, '4s intrusted to a select committee, raised by the conferences of the two organizations, who go over the whole subject-matter and report to their respective parties. The final report of the two committees is embodied in a resolution. ... It is invariably the habit and the method of doing business that Senators' wishes respecting committees are consulted." ^ Sometimes, as we have seen above, the choice of the caucus is merely nominal, the real power being in the inner circle that dominates the caucus."* It is in the committee room usually behind closed doors and ■ secure from public scrutiny that the real legislative work is done.f Every bill, important or unimportant, is sent to the committee having jurisdiction over the subject-matter to which it relates.® * Except the committee on rules which was made elective by the house on March 19, 1910. This committee chooses its own chairman. ^ Reinsch, American Legislatures, pp. 65 ff. =* Congressional Record, Vol. XL, part i, p. 538; 59th Cong., ist Sess. ^ Above, p. 268. ^ Only bills which are reported favorably from committees have much chance of being acted upon, and when a bill is once favorably reported by a committee, its chances of passage are very high. For example, in the Fifty- eighth Congress, 19,209 bills were introduced in the House; the committees reported 4904; and 4041 were passed. Hinds, Precedents, Vol. V, p. 286. ' Bills of a private nature are referred by the clerk of the House to the committees indicated by the introducers. Public bills are referred by the Speaker, but his reference may be changed by the House. 278 American Government and Politics The recommendations contained in the President's message are likewise so distributed. Quite frequently the committees origi- nate the bills — especially appropriation bills — relating to the matters placed under their jurisdiction. Thousands of bills which go to committees are not considered at all, but a measure which a committee reports receives an analysis and criticism more or less severe, according to the char- acter of the bill. On a measure of vital importance, papers and documents relating to the subject may be secured from the head of the executive department to whose duties it relates; or the officer himself may be requested to appear personally and answer a multitude of questions propounded by the committee members. Friends and opponents of the measures pending in committees are frequently admitted to state the reasons for their positions; hearings may even be held in various points through- out the country, and witnesses may be required to attend the committee meetings and give evidence very much in the same manner as in a courtroom. In almost every case the measures in charge of a particular committee are considered or formulated by a sub-committee (in - which the minority receives scant recognition), and the whole committee generally accepts its report. On purely party ques- tions, such as the tariff, the majority members of the committee draft the bill, and, when the measure is complete, they may in- vite the minority members in to vote on it as a matter of form. With regard to any measure referred to it, a committee may rec- ommend its adoption, amend it, report adversely, delay the report indefinitely, or ignore it altogether. In the House it rarely happens that a member is able to secure the consideration of a bill which the committee in charge opposes; but in the Sen- ate a greater freedom is enjoyed in this respect. / 'Owing to the pressure of business in the House, it is impossible / to consider each bill on its merits and arrive at a vote after search- j ing debate and mature deliberation; and within recent years even I very important measures have been forced through as they have \ come from committee without any serious debate or a single amendment.* ^his, of course, places an enormous power in the ' Many speeches which appear in the Congressional Record are not delivered in the House at all, but are prepared by members for the benefit of their con- stituents. Congress at Work 279 hands of committees and changes the House from a deliberative into a ratifying assembly. There has been a great deal of criti- cism of the committee system, but no acceptable substitute has as yet been suggestedXjAs early as 1880, the Independent National, or Greenback, partydemanded absolute democratic rules for the government of Congress, placing all representatives of the people upon an equal footing, and taking away from committees "a veto power greater than that of the President." Complaints are constantly being made in the House itself, especially by members of the minority. " You send important questions to a committee," said Mr. Sherley, in the House in 1905; "you put into the hands of a few men the power to bring in bills, and then they are brought in with an ironclad rule, and rammed down the throats of mem- bers; and then those measures are sent out as being the deliberate judgment of the Congress of the United States when no deliberate judgment has been expressed by any man." ^ This division of each house of Congress into a large number of separate committees, no doubt, does lead to many deplorable results. These committees work with little or no reference to one another, each preparing its own bills with slight regard to the measures in the other committees. The committee on ways and means has no official communication with the committees in charge of appropriations, for example. That is, the committee on raising revenues has no way of balancing its accounts over against the estimated expenditures as they are shaped by the several committees on appropriation measures. The result of this practice is not only unfortunate as far as revenues and ex- penditures are concerned; it often leads to ill-adjusted and con- flicting legislation even on matters of fundamental importance — ■ matters which in England would receive the careful attention of the Cabinet, composed of the leaders of the majority party. There are serious constitutional difficulties in the way of our creating such a system of Cabinet responsibihty for legislation, but it may be that, while retaining the committee system now in force, we may secure responsibihty by frankly recognizing the power in the hands of the chairmen of important committees, and by holding them definitely accountable as party leaders. Indeed, there are signs that we are going in that direction.'^ ' Congressional Record, Vol XL, part i, p. 455; 59th Cong., ist Sess. ^ Reinsch, American Legislatures, p. 49. 28o American Government and Politics The Speaker of the House of Representatives * V. In this tendency to develop some sort of responsibility for legislative policies at Washington, the power of the Speaker of the House of Representatives assumes an important place. In every large body with a great amount of business to transact there must be some directing authority to see that the necessary measures are disposed of promptly, and to prevent procedure from faUing into chaos. In England, this leadership is avowedly vested in the Prime Minister, who is the acknowledged head of the majority party in the House of -Commons, and is chiefly re- sponsible for the successful realization of the party policy in Par- liament. The Speaker of the House of Commons under these circumstances does not feel any responsibility in this matter, and accordingly maintains an attitude of impartiaUty in his rulings and decisions — at least in theory. In the beginning of our fed- eral government, the Speaker was regarded as a mere moderator, but as the House grew in size and the business to be transacted increased enormously, it became impossible for him to sit pas- sively and see the measures of his party delayed or defeated by the dilatory tactics of the minority. Hence it has come about that the Speaker is now a party leader holding the minority in such control as will enable the majority to carry its principal measures. "The Speaker's control over legislation is now, under the rules and practices of the House, almost absolute, " said an editorial writer in 1897. "The people know this now. The time has passed when the Speaker could exercise his vast power unsus- pected. Nor can he shirk his responsibiHty. No bill can pass the House without his passive approval, and that in, effect is the same thing as active advocacy."^ While the conduct of any par- ticular Speaker may be criticised, the inevitableness of this de- velopment in the office which he holds is apparent to any person ^ FoUet, The Speaker. Readings, pp. 256 ff. The dissatisfaction with Mr. Cannon's policy during the last two or three years led to many strong attacks on him in the House, even by members of his own party, and on March 19, 1910 the " insurgents " were able to oust him from the rules com- mittee and make that committee elective by the House. This may be the beginning of a new regime in the House. On this, see current periodical lit- erature. ^ The Nation, quoted in Reinsch, American Legislatures, p. 49. Congress at Work 281 who has had occasion to observe a large democratic assembly at work. The Speaker, according to constitutional law, is chosen by the House of Representatives, but in fact he is selected at a caucus of the majority party, and the House merely ratifies the selection. The ofiice always falls to some member of long service who has had not only an opportunity to master the intricate details of parliamentary procedure, but also has learned the fine art of po- litical manipulation — of securing support, skilfully distributing favors, and thwarting opposition. He is a rnan who has shown capacity for "getting things done" on the floor of the House and in the committee room. He does not rise to the position through his power as an orator or his ability to command the approval of the country in the same way that an English member of Parlia- ment rises to the position of Prime Minister. Nevertheless, he is in a very real sense a party leader and the success of his party at elections depends in a considerable measure on his policy and conduct in office. The elements of control in the hands of the Speaker are undoubtedly powerful. He appoints, as we have seen, the committees of the House and names the chairman of each (ex-! cept the rules committee, which was made elective on March ; 19, 1910, and authorized to choose its own chairman) ; until that i date he was ex ofiicio chairman of the committee on rules, which directs a considerable portion of the business of the House, but at that time the House resolved to remove the Speaker from that committee; he may refuse to put dilatory motions; he may recognize whomsoever he pleases on the floor of the House; and he decides questions of parliamentary procedure subject to appeals from his decisions.^ Inasmuch as the ordinary member of the House ^ can bring his own measures up for discussion only with the " unanimous consent of the House," the Speaker enjoys a considerable power in this connection. As a member himself, he has a right to "object," and thus prevent the Representative asking the attention of the House from getting a hearing on his particular schemes. For a long time it was customary for the Speaker, when he did not * Readings, p. 260. 2 The most important committee chairmen, of course, occupy a privileged position. See above, p. 274. 282 American Government and Politics want any matter brought up under the rule of "unanimous con- sent," to notify some supporter on the floor to object, but Speaker Cannon, to use his own words, "thought the better way and the more manly and fairer way was to exercise his right as a member, to object to a request for unanimous consent." ^ Any member, therefore, who wishes to call up a measure in the House must now, as a matter of practice, visit the Speaker in advance and secure his approval, and in giving his consent the Speaker is not unmindful of the service he has secured or may secure from the man soliciting his favor. Every member has several schemes of his own relating to his district and demanded by his constituents. - He must get a hearing, or be a nonentity in the House; his poHt- ical career depends upon it. There is no use trying to explain to his fellow-citizens the rules of the House which prevented his being heard. The Speaker, therefore, holds the key to the situation. The way in which this practice sometimes works hardships for individual members is illustrated in this account by Mr. Cooper, a member from Wisconsin: — We all know that we cannot get a bill passed — every man on the floor does, Republican or Democratic — by unanimous consent unless the Member presenting it first goes to the private chamber of the Speaker and asks to be recognized. The Speaker does not have to give his reasons for any objections he may have. He does not rise upon the floor, but in his private chamber he objects. I wish to say that the present Speaker of the House has always treated me with the utmost courtesy and kindness. A former Speaker of this House compelled me to go to his room at one time. I went there to present a bill which provided simply for the changing of the material which was to go into a public building and which had been recommended to him in a letter from the office of the Supervising Architect. ... I went to the Speaker's chamber. I had refused on a former occasion to do his bidding. When I went to his room he said, "I will see about that; come in again." I went in again. He did not ask me to sit down. He said, "I do not think I can do that; I do not want to do that; I cannot allow that to come up." Not only that, but he com- pelled me to stand there, and when a perfect stranger came in, he sat him down in his seat and turned his back on me. A very important rule had previously come before the House of Representatives. That same Speaker had stopped me at the entrance there and put his hand upon my breast and said, "Mr. Cooper, you will oblige me very much ^ Reinsch, Readings, p. 234. ^ See above, p. 270. Congress at Work 283 by not opposing this rule." That rule related to the Pacific Railroad funding bill. I did oppose it. I was the only RepubUcan of the minority of the committee that reported against the bill; the rule was modified, and for the first time in thirty years the Pacific Railroad people lost their bill. That same Speaker refused practically to recognize me for four or five years for any purpose, and never when he could help it.^ Nevertheless, many bad measures are checked by this exercise of power. Members of the House do not have the time to con- sider the measures on which their unanimous consent is asked, and, besides, they have plans of their own, so that they cannot use discretion in objecting. The main burden of responsibility is on the Speaker, and consequently he openly assumes it. It may lead to unfortunate results, no doubt, and it enables the Speaker to bring the new member of Congress into Hne with "the old guard" by closing to him all avenues to power and prefer- ment unless he capitulates or keeps silence. It thus permits the Speaker and his immediate supporters, even though constituting a minority of the entire House, to check any spirit of independence and criticism shown by their party associates. The system may, therefore, virtually establish minority rule in the House, because the men w^ho would be independent if they could, taken in con- junction with the members of the opposition party, might con- stitute a majority of the whole number of Representatives. The Committee on Rules VI. Until March 19, 1910, a considerable portion of the Speaker's power came from his connection with the committee on rules — a committee consisting of himself, and two majority and two minority members named by himself. Inasmuch as this committee virtually had the authority of directing impor- tant business in the House, it became the object of bitter at- tacks by those opposed to Speaker Cannon's policy. At length on March 19, 1910, the Democrats, aided by the " insurgent " Republicans were able to carry a resolution to the effect that the committee on rules should consist of ten members — six of the majority and four of the minority, the Speaker not to be among the number. It was further resolved that this committee should be elective instead of appointive. The effect of this ' Reinsch, Readings, p. 228. 284 American Government and Politics resolution will be to take a part of the power from the Speaker and vest it in an independent committee chosen by the House, and, it is expected that this committee will be more represen- tative of the will of the majority. The House is thus selecting a small group to direct its business, but the Speaker's power is by no means destroyed by this action. This important committee on rules may at any time recom- mend the adoption of any methods of procedure in connection with a particular bill which will secure its speedy passage. A report of this committee is highly privileged; it may be brought in at any time; only a motion to adjourn may be entertained during its consideration; and the Speaker will not allow any dilatory motions until it is fully disposed of. "The essence of the power of the committee on rules," says Professor Reinsch, "Kes in the fact that it has the right to report at any time a resolution that a bill or other measure be made a special order for a certain day. As nearly all the important measures before the House of Repre- sentatives are dealt with under special orders, the committee on rules has, therefore, in its hands practically the complete control of the course of business in the House. It determines what measures shall be discussed, how much time is to be given to them, and in what order they are to be brought up." ^ It may, for example, recommend to the House a resolution which will have the effect of stopping debate on a particular measure, and force its adoption or rejection in the form in which it came before the House. ^ The resolutions introduced by this committee, however, are subject to the approval of the House, so that whenever one of its drastic recommendations is adopted, it is only because it has correctly measured the temper of the majority — disciplined under party leadership. The Transaction of Legislative Business in the House ' VII. With this preliminary survey of some of the institutions and practices of Congress, we are better able to understand the ^ Reinsch, American Legislatures and Legislative Methods, pp. 45 ff. Pro- fessor Reinsch's statement, however, should be modified somewhat, for many more important measures than his words imply are taken up without special orders from the rules committee. ^ For a "special order" from the rules committee, see below, p. 287. 3 Readings, p. 262. I Congress at Work 285 procedure of this body from day to day. The principles govern- ing this procedure are to be sought in Jefferson's Manual of Par- liamentary Practice, the standing rules of each house, and the vast number of precedents established during the history of Congress. Whoever finds sheer enjoyment in unraveUing complicated prob- lems of procedure has an unUmited field for self-indulgence in the eight bulky volumes of a thousand pages each, compiled by Mr. A. C. Hinds, Clerk of the Speaker's Table, bearing the title of Parlia- mentary Precedents of the House of Representatives} Fortunately, however, the principles, or rather lack of principles, governing the conduct of business in either house from day to day may be under- stood by the mastery of a few fundamental practices.^ At the opening of a new Congress the House of Representatives is called to order by the clerk of the last House, who calls the roll, and, finding a quorum present, announces that they are ready for nominations for Speaker. The majority and minority put for- ward their candidates, and after the former's nominee is duly ratified, he takes the oath of office administered by the member longest in continuous service of the House. The roll is called by the clerk, and the Representatives go forward to be sworn in. The other officers are chosen, and the President of the United States and the Senate are informed that the House is ready for business. The question of the adoption of the rules of the pre- ceding Congress is then threshed out, and usually carried in the face of the traditional protests of the minority. In due time the Speaker announces his appointments to committees, the personnel of which he has usually determined upon before Congress convenes. The Senate differs from the House in being a continuous body.! At each new Congress only one-third of the members are renewed. The presiding officer, the Vice-President, as required by the Con- stitution, takes the chair. In case of his absence, his duties are performed by a president pro tempore. The newly elected Sena- tors are called in alphabetical order by the secretary of the Senate, and each Senator in turn is escorted to the presiding officer's desk, usually by the colleague from his state, and there takes the oath of office. The President and House are duly notified, and then the Senate is also ready for work. » Copies of the rules of both houses may be secured by writing to a Sen- ator or Representative. 2 On Senate procedure, see above, p. 275. 286 American Government and Politics The House of Representatives has a regular order of business as follows: (i) prayer; (2) reading and approval of the journal; (3) correctionof reference of public bills; (4) disposal of business on Speaker's table, such as presidential messages and Senate bills which can be referred immediately to committees or are similar in character to some already approved by the House; (5) un- finished business. Then follows (6) what is now known as the "morning hour," which may last more than sixty minutes unless interrupted. To this morning hour are assigned by rule certain pubUc measures relating to such matters as the judiciary and interstate and for- eign commerce, and carrying no appropriations.^ It is the custom to call the committees in alphabetical order, and the chairmen of the committees in their turn have the right to be recognized by the Speaker. The extent of the consideration which the measure presented by the chairman receives depends upon circumstances, but the way in which business is done under this rule is illustrated by this extract from the Congressional Record : - The Speaker. The Clerk will call the next committee. The Committee on the Merchant Marine and Fisheries was called. Mr. Littlefield. Mr. Speaker, by direction of the Committee on the Merchant Marine and Fisheries, I call up the bill to remove discriminations against American sailing vessels in the coasting trade. The Speaker. The gentleman from Maine, on behalf of the Committee on the Merchant Marine and Fisheries, calls up the follow- ing bill, which the Clerk will report. The Clerk reads as follows: [the bill]. Mr. Littlefield. Mr. Speaker, I ask unanimous consent that we may be allowed two hours on a side for debate, the time on the other side to be controlled by the gentleman from Kentucky and the time on this side to be controlled by myself. The Speaker. The gentleman from Maine asks unanimous consent that debate upon this bill close in four hours, two hours to be controlled by himself and two hours by the gentleman from Ken- tucky. Is there objection? There was no objection. Mr. Littlefield. Mr. Speaker, I yield fifteen minutes to the gentleman from Washington [and the debate proceeds].^ * Readings, p. 263. ^ Congressional Record, Vol. XLI, part i, p. 108; 59th Cong., 2d Sess. Congress at Work 287 After the "morning hour" (7) the seventh stage of business, a motion to go into the committee of the whole house on the state of the Union, is in order, and the Speaker must entertain it. In the committee of the whole House, one hundred constitute a quorum, and the Speaker resigns the chair to some other member. In this form, the House debates, passes upon, and reports to it- self important measures relating to revenue and appropriations. A matter favorably reported by this committee, of course, is adopted in due form by the House. After the committee has resolved itself into the House again, the last order of business (8) is the order of the day — now obsolete. But the regular order of business, as a wag once remarked, ''is not regular and not an order." It may be interrupted at any time by the chairman of a committee in charge of what is called privileged business, such as a contest over the right of a member to his seat, appropriation and revenue bills, improve- ments of rivers and harbors, the admission of new states, and other important matters.^ Reports of conference committees of the two houses are likewise highly privileged.^ There are also a number of bills relating to subjects of great public interest which are made special orders for certain days by the committee on rules with the approval of the House. It is here that the Speaker and "his six assistants" manifest their power in selecting such measures as they wish to bring up for special order, and in determining the amount of time that may be given to each of them. This, of course, must be submitted to a vote of the House; but, as has been indicated, the majority always approves the policy of the committee on rules. The way in which the committee operates maybe illustrated by the following extract from the Congressional Record (1908): Mr. Dalzell. Mr. Speaker, I submit the following privileged report from the Committee on Rules. The Speaker. The gentleman from Pennsylvania submits a report from the Committee on Rules, which the Clerk will report. The Clerk read as follows: — Resolved, That immediately upon the adoption of this rule and at any tinie thereafter during the remainder of this session, it shall be in order to take from the Speaker's table any general appropriation bill returned with Senate amendments, and such amendments having been read, the question shall be ^ See above, p. 274. ^ See " Calendar Wednesday," below, p. 290. 288 American Government and Politics at once taken, without debate or intervening motion, of the following ques- tion: "Will the House disagree to said amendments en bloc and ask a con- ference with the Senate?" And if this motion shall be decided in the aflEirm- ative, the Speaker shall at once appoint the conferees, without the interven- tion of any motion. If the House shall decide said motion in the negative the effect of said vote shall be to agree to the said amendments. And further, for the remainder of this session the motion to take a recess shall be a privi- leged motion, taking precedence of the motion to adjourn, and shall be de- cided without debate or amendment. And further, during the remainder of this session, it shall be in order to close debate by motion in the House before going into Committee of the Whole, which motion shall not be subject to either amendment or debate. (Applause on the RepubUcan side.) Mr. Sulzer. Mr. Speaker, would it not be well to add to that "That hereafter the Democrats shall have nothing more to say"? (Laughter.) Mr. Dalzell. Mr. Speaker, the purpose of this rule, like the purpose of the rule that was introduced yesterday, is to expedite the public business. Mr. Williams. Mr. Speaker — The Speaker. Does the gentleman from Pennsylvania 3deld to the gentleman from Mississippi? Mr. Dalzell. Yes. Mr. Williams. I wish to ask the gentleman a question. I wish to ask, before we proceed, whether the minority members of the Com- mittee on Rules will be accorded the usual twenty minutes? Mr. Dalzell. They will not. Mr. Williams. They will not ! I just wanted the House and the country to know that fact before we start this debate.^ A motion to suspend entirely the rules of the House of Repre- sentatives may be also entertained by the Speaker on the first and third Mondays of each month and on the last six days of a session. On the first Monday of the month, individual members of the House have preference in making motions to suspend the rules, and on the third Monday of each month committees are given the preference in making such motion. It requires, how- ever, a two-thirds vote to suspend the rules, and as the committee on rules has gradually gained power in bringing in special orders of business, the use of the motion to suspend has gradually de- clined. * Reinsch, Readings, pp. 273 f. Congress at Work 289 The Rights of the Minority in the House After this survey of the methods by which the majority in the House of Representatives may control the introduction of bills, reports of committees, and the discussion and passage of meas- ures, it might be presumed that the minority party is without power to influence in any effective manner the course of legis- lative procedure. This view, however, is not strictly correct. By exercising certain constitutional privileges, the minority may block proceedings and go a long way toward forcing the majority to adopt certain policies. The Constitution provides that on the request of one-fifth of the members present, the roll of the House must be called on any question, and the yeas and nays of the members entered upon the journal. The Constitution further- more provides that no business shall be done unless a quorum is present, and the minority, in the House or Senate, may therefore frequently raise the question of the presence of a quorum. Finally, as we have seen, a great deal of the legislative business is done under the rule of unanimous consent, which, of course, may be steadily refused by the minority members. More than once the leader of the mi];it)rity party has thrown down the gage to the majority leaders and frankly informed them that unless certain policies wete adopted the minority would exercise all of its privileges under the rules for the purpose of obstructing business. A notable example of a minority threat occurred in March, 1908, when Mr. John Sharp WiUiams, the Democratic leader, announced that his group would refuse unani- mous consent to all legislation and would call for the yeas and nays upon every affirmative proposition until the majority would agree to report on certain bills — measures providing for employ- ers' liabiUty, publicity of campaign contributions, free wood pulp and free print paper, and regulating the granting of injunctions.^ A new right was given to the minority and to private members by a rule adopted in March, 1909. All bills of a public char- acter not raising or appropriating money are placed upon the House Calendar, and money bills go to the Union Calendar. Under the new rule, after any bill that has been favorably re- ported has been upon either of these calendars for three days, * Reinsch, Readings, p. 272. u 290 American Government and Politics it may be placed upon the special calendar, known as the " calen- dar of unanimous consent," at the request of any member. On the days when it is in order to move the suspension of the rules, the Speaker must direct the clerk to call the bills on this calendar, but if there is an objection to the consideration of any bill so called, it must be stricken from the list and cannot be replaced thereon. Under a rule of the same time (March, 1909), Wednesday of each week (except during the last two weeks of the session) is set aside as "Calendar Wednesday" — unless otherwise de- termined by two-thirds vote — for the automatic calling up of bills, as in the case of the " morning hour."* The Final Stages of a Measure When a bill has passed either house, it is transmitted to the other body for consideration. For example, when the Senate has passed a bill, it thereupon despatches it to the House by the secretary, who, on his announcement by the doorkeeper and recognition by the Speaker, addresses that assembly in the following language: "I am directed by the Senate to inform the House that it has passed the Senate bill No. 125 [giving the title], and that a concurrence of the House therein is respectfully re- quested." If the House passes the bill thus brought in, the Senate is notified; the measure is then signed by the President of the Senate and the Speaker of the House, and is sent to the Presi- dent of the United States for his signature. If he approves the bill, he notifies the House in which it originated of his action, and sends it to the Secretary of State for official publication. If he vetoes the measure, he returns the bill to the house in which it originated, with a statement of the reasons for his action, unless that body has adjourned. If a bill originates in the House, it is sent to the Senate and goes through a similar process.^ ' See above, p. 286. ^ Although the provisions of the Constitution are explicit to the effect that every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjourn- ment) shall be presented to the President, Congress has devised a measure known as the "concurrent resolution," which, although it clearly has the effect of law, is not submitted to the President for approval. The form of this reso- lution is as follows: Resolved, by the House of Representatives (the Senate Congress at Work 291 Whenever a bill originating in one house is amended in the other, it must be returned to the first for reconsideration, and for adoption or rejection as amended. If, at last, the houses are unable to agree upon a measure, — a regular occurrence in the case of important bills, — it is the practice for the presiding officer of each body to appoint representatives to a conference committee, as it is called, authorized to discuss the differences, to come to some agreement upon the disputed points, and report back to the respective houses their agreement, or their inabihty to come to terms. As a general principle the conference committee, in coming to an agreement, should introduce no new matter into the measure which it has under consideration — that is, no provision that has not been already adopted by either the Senate or the House. It is, of course, not easy to determine whether new matter has been introduced into a long and compUcated measure. Certainly the conferees are not limited in their action to the adoption of the provisions as actually passed by one house or the other. They may, and often do, draft a compromise propo- sition, perhaps midway between the extremes demanded by the two houses, and in drafting this compromise proposition they may, of course, change the language of the bill. When a con- ference committee report is submitted, each house adopts it, or rejects it as a whole; it does not amend. Securing Information for Legislative Action In the exercise of its legislative functions. Congress frequently makes use of some special committee of investigation. For example, it instituted by an act of June 18, 1898, an industrial commission consisting of five members of the House of Repre- sentatives, five Senators, and nine persons appointed by the President — the last to be paid salaries. This commission was instructed to investigate questions appertaining to immigration, concurring) that, etc.; or, Resolved, by the Senate (the House of Represent- atives concurring) that, etc. From the beginning of the government it has been the uniform practice of Congress not to present concurrent resolutions to the President and to avoid incorporating in such resolutions any matter in the nature of legislation. The concurrent resolution is frequently used in ordering the publication of documents, in paying therefor, and in incurring and paying other expenses, the moneys for which have been appropriated and set apart by law for the use of the two houses. 292 American Government and Politics labor, agriculture, and business, and report to Congress and sug- gest desirable legislation upon these subjects. This commission made a long and exhaustive investigation and reported to Con- gress a voluminous mass of testimony and many proposals for legislative action. More recently, in February, 1907, Congress created a joint commission on immigration, consisting of three Senators, three members of the House of Representatives, and three persons (appointed by the President) — charged with the duty of making a full investigation into the subject of immigration. A generous sum of money was placed at the disposal of this commission; it established headquarters; employed a large corps of investigators; sent a sub-commission to Europe, and in short made a most searching inquiry into the whole problem of immi- gration. Sometimes, in conducting investigations, Congress, by a joint resolution, authorizes executive officers of the government to conduct inquiries and report on specific matters subject to legisla- tion. For example, on February 12, 1906, by joint resolution, Congress instructed the Interstate Commerce Commission to make examinations into the subject of railroad discriminations and monopoUes, and to report on the same from time to time. Furthermore, Congress has required certain federal courts to compel witnesses to testify before the Interstate Commerce Commission, and the Supreme Court has held this law consti- tutional. The Court declared that it was clearly competent for Congress to invest the Commission with an authority to require the attendance and testimony of witnesses and the production of books, papers, and documents relating to any matter legally committed to that body for investigation. In considering, however, the question as to whether the Commission itself could be authorized to compel obedience to its orders by a judgment of fine or imprisonment, the Court said: "Except in the particular instances enumerated in the Constitution . . . the power to impose fine or punishment in order to compel the performance of a legal duty imposed by the United States, can only be exer- cised under the law of the land by a competent judicial tribunal having jurisdiction in the premises." ^ Whatever may be the theory as to the power of Congress to Hinds, Precedents, Vol. IV, pp. 114 ff. J Congress at Work 293 investigate the working of executive departments,* there is as a matter of fact a long line of precedents showing that both houses from time to time assume the right of investigating the conduct of executive business. For example, in 18 18, the House of Representatives appointed a committee to inquire whether any clerks or other officers in any of the departments or in any office at the seat of the general government had conducted themselves improperly in their official duties, and authorized the committee to send for persons and papers. When it was contended that this resolution assumed a power over executive departments that belonged to the President alone, and would thus impair executive responsibiUty, it was answered that the House was like a grand jury to the nation and that it was its duty to inquire into the conduct of pubUc officers. A year later the House asserted that, having the constitutional right to concur in the appropriation of public moneys, it also had the right to examine into the applica- tion of appropriations for the purpose of discovering whether they had gone into the proper channels. From that day to this, it has been a frequent practice for both houses to make investiga- tions into the various branches of the public service. ^ See above, p. 209. CHAPTER XV THE FEDERAL JUDICIARY The Constitution of the United States makes only slight reference to the structure of the federal courts.^ It merely provides that the judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as Con- gress may from time to time ordain and establish. It is thus within the power of Congress to determine the number of Judges in the Supreme Court and to create any additional tribunals which may be deemed necessary for the transaction of federal business. It is true, the Constitution seeks to secure a certain degree of independence for the judiciary, by prescribing that the Judges of both the Supreme and inferior courts shall hold office during good behavior and receive for their services a compensa- tion not to be diminished during their continuance in office; but in reality the federal courts are largely creations of the legislature.^ While Congress may not remove the judges of an inferior court, except by the process of impeachment, it may get rid of them by aboUshing the court altogether. This was actually done in 1802, during Jefferson's administration, when the Re- publican Congress repealed the law of the preceding year creating sixteen circuit judgeships which President Adams had filled with Federahsts on the last night of his term. The constitutionality of this action may be questioned, but the precedent stands. Of course, Congress cannot aboHsh the Supreme Court, remove any of its Judges except by impeachment, or reduce their salaries during their respective terms of service, but it may ^ by political methods "pack" the Supreme Court very much as the House of Lords of England can be packed if it should refuse to adopt a measure passed by the Commons. It may, if it chooses, re- ^ Readings, p. 273. ' Burgess, Political Science and Constitutional Law, Vol. II, p. 321. ^ In collusion with the appointing power — the President and Senate. 294 The Federal Judiciary 295 duce the number of Judges by providing that, on the death or resignation or removal of any Judge, the particular judgeship shall be abolished.^ Again, it may increase the number of Judges in order to secure the appointment of men known to entertain cer- tain views as to the constitutionality of any particular measures. Congress may furthermore influence, in a way, the judicial de- partment by refusing to provide the requisite number of inferior courts or adequate processes. However, the judiciary, save in two or three instances, has not been controlled by any of these methods, and it therefore enj@ys, for practical purposes, a high degree of independence from legislative interference. The framers of the Constitution evidently contemplated an independent judicial system and, while the constitutional pro- vision with regard to the judiciary is not self-executive, an im- perative mandate is certainly laid upon Congress to organize the Supreme Court and to create inferior courts. As Senator Spooner has put it, it would be revolutionary for Congress to omit the organization of the Supreme Court and the estabhsh- ment of inferior courts.^ Indeed, Senator Stone has gone so far as to say that the inferior courts are estabUshed as a pubHc necessity and in pursuance of a pubhc policy outlined in the Constitution, and cannot be arbitrarily aboKshed. "Congress has power to create," he declared, " but has no power to destroy. Congress cannot destroy the judiciary any more than the judi- ciary can destroy Congress. ... If to-day Congress should pass an act aboHshing all the circuit and district courts of the United States without substituting other tribunals in their stead, can there be any doubt that the Supreme Court would declare the act to be unconstitutional and void?"^ It is difficult to see, however, what the Court could accomplish by declaring such a law void. The Federal Courts All federal Judges are nominated by the President and ap- pointed by and with the advice and consent of the Senate. With regard to the inferior courts, this mode of appointment is ^ This was axitnally done in 1866 to prevent President Johnsofl from filling vacancies. "^Congressional Record^ Vol. XL, part 5, pp. 41 15-41 17. ^ Ibid., Vol. XL, part 5, p. 4772. 296 American Government and Politics a matter of practice rather than of ' constitutional law. The Constitution provides that the President and Senate are to appoint the Judges of the Supreme Court; but authorizes Con- gress to vest the appointment of such "inferior officers" as it thinks proper in the President alone, in the courts of law, or in the heads of departments. By uniform practice, however, it is settled that the judges of the inferior federal courts are not "inferior officers" whose appointment may be taken from the President and Senate and vested in some other authority. The Judges of the Supreme and inferior courts hold office during good behavior, and therefore cannot be removed except by im- peachment. Under these constitutional provisions Congress has created the following scheme of courts: — I. At the head of the system stands the Supreme Court com- posed of nine Judge§.^ This Court holds its sessions usually from October until May in the chamber of the Capitol formerly occupied by the United States Senate. The most important business that comes before it involves questions of constitutional law brought up from lower federal courts or from state courts on appeal or by writ of error.^ The cases are presented to the Judges in the arguments of attorneys or in printed briefs or by both methods. A case as presented contains a statement of the facts involved in the con- troversy and the arguments of the attorneys on the law and facts. When a case is submitted, it is the duty of each Justice to examine the facts and the arguments and to apply the law. After each Judge has looked at the case independently, a con- ference is held at which the various points are discussed at length and a decision reached. Thereupon, the Chief Justice requests one of his colleagues^ to prepare what is called "the opinion of the court, " which contains the conclusions reached by the majority * A Chief Justice and eight Associate Justices. Six Judges must be present at each trial and a majority is necessary for a decision. The salary of the Chief Justice is $13,000 and of the Associate Justice $12,500. ^ It is not very often that the Supreme Court is called upon to try an original case affecting ambassadors, public ministers, and consuls, but there have been several cases of disputes between states over boundaries and other matters which have been brought before that tribunal as a court of first instance. ^ Of course he may write the " opinion " himself. The Federal Judiciary 297 and the final order in the disposition of the case. This " opinion " is subjected to the scrutiny of the Judges and after a careful revision, which then represents the solemn and final conclusion of the Court, it is printed and placed on record. Any Judge, who agrees with the judgment of the majority, but bases his conclusion on other arguments than those put forward in the opinion, may prepare what is called a "concurring opinion," in which he sets forth his own reasons for reaching the same end. In some instances, therefore, a majority of the Court may agree that a particular case shall be decided in favor of the plaintiff (or defendant), but each Justice may assign different reasons for his own action. It is also the practice, in all important cases, for the minority of the Judges who disagree with the conclusion reached by the majority to prepare a "dissenting opinion," setting forth their reasons for beUeving that the case should have been decided otherwise. Sometimes each of the dissenting Judges prepares his own opinion; sometimes one of them writes an opinion which is concurred in by his dissenting colleagues. As a matter of fact, many crucial cases involving constitutional law have been decided by a narrow majority — within recent years, five to four. The opinions thus rendered are officially published as the United States Reports, and at the present time the opinions for a single term of the Court extend to three or four volumes. They form the great authoritative source of information on the histor- ical development and present status of constitutional law. 2. Immediately under the Supreme Court is a Circuit Court of Appeals in each of the nine great circuits into which the United States is divided.^ The act of 1891, which estabhshed this Court for the purpose of reUeving the Supreme Court somewhat from the pressure of business, did not create a new set of judges for ' The first circuit embraces Maine, Massachusetts, New Hampshire, and Rliode Island; the second, Connecticut, New York, and Vermont; the third, Delaware, New Jersey, and Pennsylvania; the fourth, Maryland, North Carolina, South Carolina, Virginia, and West Virginia; the fifth, Alabama, Florida, Georgia, Louisiana, Mississippi, and Texas; the sixth, Kentucky, Michigan, Ohio, and Tennessee; the seventh, Illinois, Indiana, and Wiscon- sin; the eighth, Arkansas, Colorado, Oklahoma, Iowa, Kansas, Minnesota, Missouri, Nebraska, New Mexico, North Dakota, South Dakota, Ut^ah, and Wyoming; the ninth, Alaska, Arizona, California, Idaho, Montana, Nevada, Oregon, Washington, and Hawaii. 298 American Government and Politics each Court of Appeals. It merely provided that an additional circuit judge should be appointed for each of the nine circuits; and that the Justice of the Supreme Court of the United States assigned to the circuity the circuit judges and the district judges within that circuit should be competent to sit as judges of the Circuit Court of Appeals/ A Circuit .Court of Appeals, therefore, consists of three of these judges, of whom two may constitute a quorum; provided that no justice or judge before whom a case may have been tried in a District or Circuit Court may sit on the trial or hearing of the same in the Circuit Court of Appeals. The Circuit Court of Appeals has the right to review, by appeal or on writ of error, decisions in the lower federal courts. Circuit and District, and its decision is final in a large number of cases, such as controversies between aHens and citizens, suits between citizens of different states, and cases arising under patent, rev- enue, and criminal laws. However, the Circuit Court of Appeals may ask the Supreme Court for instructions on any point of law; and the Supreme Court may call the case up and decide it, or may inquire by writ of certiorari into final causes pending in the Circuit Court of Appeals. All appealed cases from the lower federal courts within a circuit go into the Circuit Court of Appeals, unless they involve the jurisdiction of the lower court, final sentences and decrees in prize cases, capital punishment, or the Constitution, or the constitutionality of laws, or treaties of the United States, or the constitutionaUty of an act of any state — in which instances appeals may be taken directly from the lower courts to the Supreme Court of the United States. This reserves, therefore, to the Supreme Court the decision of cases involving constitutionality, and gives to the Circuit Court of Appeals the final decision in nearly all other cases involving merely the application of ordinary law. As a matter of fact, however, it is relatively easy to raise the * The law provides, " In case the full court [of appeals] at any time shall not be made up by the attendance of the Chief Justice or Associate Justice of the Supreme Court of the United States and circuit judges, one or more district judges shall be competent to sit in the court ... as shall be desig- nated by the court." At least one term must be held annually at a place designated bj^ law, and other terms are held at times and places designated by tiie order of the court. The Federal Judiciary 299 question of constitutionality, so that this new Court has not been able to render the expected services in reUeving the great tri- bunal at Washington. 3. Immediately under the Circuit Court of Appeals there is the Circuit_Court. In each of the nine great circuits, men- tioned above, there are two, three, or four judges, and to each of these circuits is assigned one of the nine Justices of the Supreme Court of the United States. Many Circuit Courts are held annually at different points in each circuit, and such a court may be constituted by one Circuit Court judge, the Justice of the Supreme Court assigned to the circuit, or a district judge alone. Sometimes a circuit judge and a district judge, or a Jus- tice of the Supreme Court, sitting together, hold a Cijrcuit Court.* The jurisdiction of the Circuit Court embraces a vast range of compHcated matters which cannot be enumerated here. It has, for example, original and exclusive jurisdiction over federal criminal cases involving capital punishment; but in other crim- inal matters its jurisdiction is concurrent with that of the lower District Court. It has jurisdiction over suits between citizens of different states involving at least $2000 above costs and interest, over acts in restraint of trade,^ over offences against the contract labor law, and other matters specifically prescribed by acts of Congress. 4. The lowest federal court is the District Court. The United States is di\dded into about ninety_districts to each of which is usually assigned one judge.' Some districts embrace a single state; for example, Colorado, Connecticut, Delaware, Indiana, Rhode Island, South CaroHna, South Dakota, each constitutes a district. Other districts embrace only portions of a single state; for example, in New York State, there are four districts. The jurisdiction of a District Court can be understood only by a review of a large number of statutes, and it is so technical in character that it need be studied only by a practising lawyer whose business it is to discover the proper forum into which his > As a matter of fact, the Supreme Court Justice takes little part in the trying of cases in Circuit Courts. In important cases two judges sit together in Circuit Courts. ^ See Readings, p. 359. 3 Sometimes there is only one judge for two districts, and again there are two or three judges for a single populous district. 300 American Government and Politics clients' cases may be taken.^ Its business embraces, among others, admiralty and maritime, bankruptcy, and federal crim- inal cases, except capital offences. In close relation to the judiciary are the Department of Justice and the great army of United States attorneys and marshals in the judicial districts in the states and territories.^ The head of the Department of Justice is the Attorney- General of the United States, who is the chief law officer of the federal government. ''He represents the United States in matters in^ volving legal questions; he gives his advice and opinion when they are required by the President or by the heads of the other executive departments on questions of law arising in the ad- ministration of their respective departments; he appears in the Supreme Court of the United States in cases of especial gravity and importance; he exercises a general superintendence and direction over the United States attorneys and marshals in all the judicial districts in the states and territories; and he pro- vides special counsel for the United States whenever required by any department of the government." The enforcement of important federal laws, therefore, depends largely upon the activity of the Attorney-General, or rather upon the pressure brought to bear upon him by the President. In each of the judicial districts there is a United States district attorney ^ who represents the government in the prosecution and defence of causes arising within his district. There is also in each district a marshal ^ whose duty it is to enforce the orders of * In addition to this regular hierarchy of courts, Congress has created from I time to time special courts. There is a Court of Claims composed of a chief | justice and four associate judges whose duty it is to hear claims against the federal government. If it decides that a certain amount of money is due from the United States to any party, it cannot order payment, but must de- pend upon appropriations made by Congress. This Court partially relieves Congress of the great political pressure brought on behalf of private claims Congress has also created a judicial system for the District of Columbi comprising a court of appeals, a supreme court, and minor courts of th justices of the peace, a police court, and a juvenile court. The Payne- AldricI tariff law of igog created a Customs Court, consisting of a presiding judg and four associates, to which court appeals may be taken from the decisioD of the Board of General Appraisers on questions of jurisdiction and law ^ See above, p. 297. ' With one or more assistants. * Assisted by a number of deputies. J The Federal Judiciary 301 the federal courts, to arrest offenders against federal law, and to otherwise assist in the execution of that law. Both of these officers are appointed by the President and Senate. The Federal Judicial Power The jurisdiction of the federal courts is defined in the Con- stitution. It embraces, on the one hand, cases affecting certain persons or parties and, on the other hand, cases relative to certain matters. 1. In the first place, the jurisdiction of the federal courts covers cases affecting ambassadors, other pubHc ministers and consuls; controversies to which the United States is a party; controversies between two or more states, between a state and citizens of another state, between citizens of different states,^ and between a state or the citizens thereof and foreign states, citizens or subjects — with the provision that the judicial power shall not extend to any suit in law or equity commenced or prosecuted against one of the United States by American citizens or by citizens of foreign states. When any of these parties are in- volved in controversies, the case may come under federal judicial power, regardless of the nature of the matter in controversy. So much for the jurisdictiofi of the federal courts over parties. 2. In the next place, tlie federal judicial power extends to certain matters, regardless of the character of the parties involved in the controversy; that is, to all cases in law and equity arising under the Constitution, the statutes, and the treaties of the United States and to all admiralty and maritime cases. A case, according to Story,^ arises "when some subject touch- ing the Constitution, laws, or treaties of the United States is submitted to the courts by a party who asserts his rights in the form prescribed by law." In other words, a case in law or equity comes within the federal judicial power whenever a correct de- cision of the controversy involves in any way the interpretation of the Constitution or federal laws or treaties.^ * Also between citizens of the same state claiming lands under grants of different states. For the purposes of suing in federal courts corporations are regarded as " citizens," but for other purposes they are regarded as " persons." ^ Commentaries, Vol. II, section 1646. 3 Of course it is often the duty of state courts to apply federal law, but provision is made for appeal from their decisions. See below, p. 308. 302 American Government and Politics With the exception of two classes of cases, the Constitution does not say which of the federal courts shall have jurisdiction over any particular matter, but leaves the distribution of the judicial powers to Congress. The two exceptions are cases affecting ambassadors, other pubhc ministers, and consuls and cases in which a state may be a party. Over such cases the Su- preme Court, under the Constitution, has original, but not ex- clusive, jurisdiction; that is to say, whenever any such case arises, it may be taken into the Supreme Court in the very begin- ning, without having been previously tried in any lower court. Since, however, the Constitution does not confer exclusive juris- diction in such matters, it is left for Congress to decide whether any other federal court or courts may also try these cases and under what Umitations. Over all other cases faUing within the scope of the federal judicial power, the Supreme Court has only appellate jurisdiction as to law and fact, subject to such excep- tions and under such regulations as Congress may make. The Great Writs In the exercise of their judicial functions the federal courts have the power of issuing certain writs which affect very funda- mentally the rights of citizens. I. The first and most famous of these writs is that of habeas corpus. This writ is designed to secure to any imprisoned person the right to have an immediate prehminary hearing for the pur- pose of discovering the reason for his detention. For example, a United States marshal in the execution of the revenue laws kills a citizen of a state and is arrested and imprisoned by the state authorities. His attorney apphes to some near-by federal court for a writ of habeas corpus, which writ will require the state officer having charge of the prisoner to produce him in the federal court where the reasons for his arrest and detention are to be examined. The Supreme Court and Circuit and District courts of the United States have the power of issuing writs of habeas corpus, and the several justices and judges of these courts within their respective jurisdictions have the power of granting the writ for making inquiries into the cause of arrest. This does not mean, however, that a federal judge may issue the writ indiscriminately. The Federal Judiciary 303 It can only be issued when a prisoner is in jail under federal custody or authority; or for some act done or omitted in pur- suance of a law of the United States or the order, process, or decree of some federal court or judge; or is in prison in violation of the Constitution or some law or treaty of the United States; or is a citizen of a foreign country claiming to be imprisoned for some act committed with the sanction of his government.^ In other words, a federal judge cannot issue a writ of habeas corpus in behalf of some person who merely claims that he is detained in \iolation of the law of a commonwealth. He must be a prisoner held either under federal authority, or by state authority in violation of some law of the United States. The application for a writ of habeas corpus is made to the proper court by a complaint in writing, signed by the prisoner, setting forth the facts concerning his detention and the reasons for his imprisonment, if they are known to him, and stating in whose custody he is held. It is the duty of the judge upon application to grant the writ, unless it is evident from the appli- cation itself that the prisoner is not Entitled to it under the law. Within a certain time the person to whom the writ is directed must make due return, bringing the prisoner before the judge and certifying as to the cause of his detention. The court or judge, thereupon, must proceed in a summary way to examine the facts, hear the testimony and arguments, and either release the prisoner (if he is detained in violation of the law), or remand him for trial if there is no warrant, under the law, for interfering. 2. The second writ is the writ of mandamus which is used against pubhc officials, private persons, and corporations for the purpose of forcing them to perform some duty required of them by law.^ The mandamus is properly used against executive officers to compel them to perform some ministerial duty.^ Where the duty is purely discretionary and its performance ' Taylor, Jurisdiction and Procedure of the United States Supreme Court, P- 503- ^ It was early settled by judicial decision that no federal court (except the Supreme Court of the District of Columbia) could issue the writ of man- damus except in aid of the exercise of jurisdiction acquired in some other way. ^ An excellent example of the use of mandamus is afforded by the case of Postmaster-General Kendall, who was ordered by the Supreme Court to obey the provisions of an act of Congress directing him to pay certain sums due to mail-carriers under government contract (1837). 304 American Government and Politics depends upon the pleasure of the official or upon his own inter- pretation .of the law, the court will not intervene. In general, any one seeking the writ of mandamus to compel a federal officer to perform an act must show that he has no other ade- quate legal remedy and that he has a clear legal right to have the action in question performed by the officer. "It is ele- mentary law that mandamus will only issue to enforce a min- isterial duty as contradistinguished from a duty that is merely discretionary. This doctrine was clearly and fully set forth by Chief Justice Marshall in Marbury v. Madison and has since been many times reasserted by this Court." ^ The writ of mandamus is also often used to compel an inferior court to pass upon some matter within its jurisdiction which it has refused to hear or act upon.^ 3. The third great writ is the writ (or bill) of injunction. This writ may be used for many purposes. Sometimes it takes the form of a mandatory writ ordering some person or corpora- tion to maintain a status quo by performing certain acts. Thus, for example, the employees of a railway may be forbidden to refuse to handle the cars of some company which they wish to boycott; in other words, may be ordered to continue to perform their regular and customary duties while remaining in the ser- vice of their employer.^ Sometimes the injunction takes the form of a temporary restraining order forbidding a party to alter the existing condition of things in question until the merits of the case may be decided. Sometimes the writ is in the form of a permanent injunction ordering a party not to perform some act the results of which cannot be remedied by any proceeding in law. The question of injunctions has been brought into national politics by the frequency with which federal courts have issued them in labor disputes. Inasmuch as corporations are often "citizens" of some other state than that in which their striking laborers reside, it is easy for them to seek reUef at the hands of the federal courts on the ground of diversity of citizenship.'' In- junctions are also occasionally granted by the federal courts in 1 The United States, etc., v. Lament, 155 U. S. R., 308. ^Taylor, Jurisdiction and Procedtire, pp. 512 ff. 3 Judson, The Law of Interstate Commerce (1905), p. 127, note 3. < See above, p. 301 and note i. The Federal Judiciary 305 cases involving interference with interstate commerce — a matter coming under federal authority. For example, during the famous Chicago strike in 1894, the federal district court in that city issued a general injunction to all persons concerned, ordering them not to interfere with the transmission of the mails or with interstate commerce in any form. Mr. Debs, who was directing the strike wliich was tying up interstate commerce, was arrested, fined, and imprisoned for refusing to obey this in- junction. Debs thereupon, through his counsel, claimed the right to jury trial, asserting that the court could not impose a penalty which was not provided by statute. On appeal, the Supreme Court affirmed the right of the lower court to grant an order enjoining any person from interfering with interstate commerce over natural or artificial highways, and held that im- prisonment for contempt of court did not violate the principle of due process of law. Accordingly, this power of the federal courts to issue injunc- tions was brought into poUtics by working-men who claimed that those courts, in many instances, issued writs hastily, arbi- trarily, and with prejudice to their legal rights. In 1908 the question was taken up by both of the great poUtical parties. The Democratic party said in its platform: ''We believe that the parties to all judicial proceedings should be treated with rigid impartiality and that injunctions should not be issued in any cases in which injunctions would not issue if no industrial dispute were involved "; and furthermore reiterated the pledges of 1896 and 1904 — trial by jury in all cases of persons arrested for indirect contempt ; that is, contempt committed outside the presence of the court. On account of the stand taken by the Democratic party, Mr. Gompers, President of the American Federation of Labor, came out openly in support of Mr. Bryan and attempted to secure for him the labor vote throughout the United States. The issue was also taken up by the Republicans. In their platform they declared, "that the rules of procedure in the federal courts with respect to the issuance of the writ of injunction should be more accurately defined by statute and that no injunc- tion or temporary restraining order should be issued without notice, except where irreparable injury would result from delay, in which case a speedy hearing thereafter should be granted." 3o6 American Government and Politics In his acceptance speech, Mr. Taf t said that threatened unlawful injuries to business could only be satisfactorily met by an injunc- tion to prevent them, because a suit for damages offered no adequate remedy. He furthermore urged that the interjection of a jury trial between the orders of a court and their enforce- ment would fundamentally weaken the power of the court. "Under such a provision," he contended, "a recalcitrant witness who refuses to obey a subpoena, may insist on a jury trial before the court can determine that he received the subpoena. The citizen summoned as a juror and refusing to obey the writ when brought into court must be tried by another jury to determine whether he got the summons; such a provision applies not only to injunctions, but to every order which the court issues against persons. A suit may be tried in the court of first instance and carried to the Court of Appeals and thence to the Supreme Court, a judgment and decree entered, and an order issued, and then, if the decree involves the defendant's doing anything or not doing anything and he disobeys it, the plaintiff, who has pursued his remedies in lawful courts for years, must, to secure his rights, undergo the uncertainties and the delays of a jury trial before he can enjoy that which is his right by the decision of the highest court of the land." Mr. Taft, however, expressed his concurrence in the declara- tion of the Repubhcan platform to the effect that the "rule of procedure in the federal courts with respect to the issuance of the writ of injunction should be more accurately defined by statute." In his message of December 7, 1909, to Congress, he made this specific recommendation: "The ends of justice will best be met and the chief cause of complaint against ill-considered injunctions without notice will be removed by the enactment of a statute forbidding hereafter the issuing of any injunction or restraining order, whether temporary or permanent, by any federal court without previous notice and a reasonable oppor- tunity to be heard on behalf of the parties to be enjoined; unless it shall appear to the satisfaction of the court that the delay necessary to give such notice and hearing would result in irrep- arable injury to the complainant, and unless also the court shall from the evidence make a written finding, which shall be spread upon the court minutes, that immediate and irreparable injury is likely to ensue to the complainant, and shall define 1 he Federal Judiciary 307 the injury, state why it is irreparable, and shall also indorse on the order issued the date and hour of the issuance." The Power of Passing upon the Constitutionality of Statutes The jurisdiction of the federal courts extends not only to cases in law and equity in the strict sense of the word; it extends to cases involving the constitutionality of state and federal laws. It is nowhere expressly provided in the Constitution that the federal courts shall have the power to declare a statute of Con- gress or of a state legislature invaUd on the ground that it con- flicts with the Constitution. Indeed, it is contended by some writers that it was not the purpose of the framers to confer such a power, especially over federal statutes, upon the courts pf the United States. For example, the Honorable Walter Clark recently declared that the federal judiciary has clearly usurped authority in this regard.^ Long ago, Mr. Jefferson held that it was the design of the framers to estabhsh three coordinate and independent departments of government, and that to give the judiciary the power of passing upon the acts of the other depart- ments would be to make that branch of the government supreme over the other two branches.^ It is, of course, not possible to determine what was the inten- tion of every member of the convention at Philadelphia which framed the federal Constitution; and there is reason to believe that some of them, at least, did not desire to make entirely clear the precise nature of the authority which they had conferred upon the federal judiciary. Speaking of the language of the federal Constitution, Gouverneur Morris, who was one of the leaders in the convention, wrote: "Having rejected redundant and equivocal terms, I believed it as clear as our language would permit; excepting, nevertheless, a part of what relates to the judiciary. On that subject conflicting opinions had been main- tained with so much professional astuteness that it became neces- sary to select phrases which expressing my own notions would not alarm others nor shock their self-love." ^ On the other hand, however, some of the members of the con- vention, even before the adoption of the Constitution, expressed ^ See the Independent, Sept. 26, 1907, * See Readings, p. 281. »' Sparks, Life of Morris, Vol. Ill, p. 323. 3o8 American Government and Politics their belief that the federal judiciary would have the power to pass upon the constitutionaUty of laws. This side of the case was very plainly put by Hamilton in The Federalist: "The interpre- tation of the laws is the proper and pecuHar province of the courts. A constitution is, in fact, and must be, regarded by the judges as a fundamental law. It must, therefore, belong to them to ascertain its meaning, as well as the meaning of any par- ticular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obUgation and validity ought, of course, to be preferred; in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents." At considerable length Hamilton, thereupon, elaborated and defended this function of the court as prescribed in the Constitution which the people were then being called upon to ratify.* At ajl events, whatever may have been the intention of the f ramers. Chief Justice Marshall, in the famous case of Marbury v. Madison, demonstrated with logic that has never been answered that the Court under the Constitution possesses the power of de- claring statutes void when they conflict with fundamental law.^ Congress has provided by law the precise way in which the constitutionality of the statutes and acts of states may be tested in the Supreme Court of the United States. A case may be taken to that Court from the highest court of a state haying jurisdiction over the cause, whenever the latter denies the validity of a federal treaty or statute or of an authority exercised under the United States. A case may be taken to the Supreme Court from any such state court whenever, during the trial, any statute of, or authority exercised under, the state in qudfetion is claimed to be repugnant to the Constitution, treaties, or laws of the United States, and is nevertheless upheld by the state court. Thus, a case may be taken into the Supreme Court jrom the state court, whenever the latter decides against a part^ or person claiming any title, right, privilege, or immunity undlfer the federal Consti- tution, statutes, or treaties, or under any Authority exercised in the name of the United States. To make the process of testing the constitutionality of a state > The Federalist, No. LXXVIII. 2 For this important opinion, rendered in 1803, see Readings, p. 274. The Federal Judiciary 309 statute clear, let us examine a concrete case. The legislature of New York recently passed a law providing that no employees should be required or permitted to work in bakeries more than sixty hours a week, or ten hours a day. Mr. Lockner, an employ- ing baker of New York, claimed that this statute infringed the rights which he enjoyed as a citizen under the Constitution of the United States, and resisted its enforcement. The case was carried to the highest court in the state of New York, which upheld the statute. The decision having been against the right which he claimed under the federal Constitution, Lockner there- upon carried his case to the Supreme Court of the United States, which decided in his favor, declaring the law of New York null and void as being in conflict with certain provisions of the federal Constitution.^ It must be noted that the federal court will take no notice of the constitutionality of a statute except when the latter is brought to its attention in the form of a case involving the rights of parties to a suit. In deciding against the validity of a statute, the court does not officially annul that statute, in the way in which a governor or President might veto it ; it merely refuses to enforce the statute in the particular case before it. Thereupon, the executive department of the federal government, or of the state government, as the case may be, simply drops the enforcement of the law. In no instance will the federal judiciary consider the constitu- tionality of any law in the abstract or render any opinion either to Congress or to the President on the validity of a proposed statute. This practice of the court was adopted early. In 1793, Washington sought the advice of the Supreme Court by proposing to that body twenty-nine different questions, which the Court respectfully declined to answer on the ground that it could give opinions only in regular cases properly brought before it in the course of ordinary judicial proceedings.^ ' See Readings, p. 617. ^ The Supreme Court has not declared very many acts of Congress invalid. From its foundation to 1903 it had pronounced void only twenty-one acts of Congress. In considering the constitutionality of federal statutes the Court has laid down the rule that it will not declare a law void except when there is no doubt in the mind of the Court as to its unconstitutionality. In dealing with state laws, the Supreme Court declared, within the period mentioned above, more than 200 statutes invalid. 310 American Government and Politics The power of the Court to pass upon the acts of state govern- ments was early resisted by Jefferson and the stanch defenders of states' rights. They admitted the supremacy of the federal gov- ernment within its sphere, but they contended that to give the federal judiciary the right to determine the validity of state laws would enable the federal government to define its own sphere of power and thus reduce the states to mere administrative subdivi- sions.^ However, the leaders of the states' rights party did not offer any adequate plan for settling amicably disputes between the federal and state governments over their respective limits of power and for obviating the endless complications that would arise from conflicting decisions in the state courts if there were no final tribunal of appeal to give uniformity to them. The logic by which the federal judiciary secures its authority to pass upon the validity of state acts is as inexorable as the logic of Marshall's opinion in Marbury ik Madison.^ Political Controversies over Jiidicial Authority ^ This power of the federal judiciary to pass upon the vaUdity of state and federal laws inevitably involves federal courts, espe- cially the Supreme Court, in political matters. Almost every important statute is a political act by a political body, usually by a majority composed of the members of one political party; and the power to declare such an act null and void is a poHtical power, although under our system it is exercised in the form of a judicial decision.'' In determining the validity of statutes, espe- cially federal statutes, the Supreme Court, on several momentous occasions, has been drawn into partisan controversies. The most famous of all these controversies occurred in connec- tion with the celebrated case of Dred Scott (1857), in which Chief Justice Taney, of southern origin, sought to accomplish the impossible feat of settling the slavery issue by ohiter dicta. The central principle of Taney's opinion was that Congress had no power to prevent slavery in the territories of the United States ' See the Kentucky and Virginia Resolutions, McDonald, Select Docu- ments of United States History, 1 776-1861, pp. 149 ff. ^See Readings, pp. 140, 278. 3 See Professor Haines's temperate review of this contentious topic, The Conflict over the Judicial Powers (Columbia University Studies). * See Readings, pp. 283, 288; for Mr. Roosevelt's view, Readings, p. 286. The Federal Judiciary 311 — the very question upon which the new Republican party was then staking its hopes and gaining its strength. • The response which this momentous decision met was wide- spread and decided. The southern states accepted Chief Justice Taney's opinion as final, and a section of the Democratic party, assembled in convention at Charleston, South CaroHna, in April, i860, resolved that it would "abide by the decisions of the Supreme Court of the United States on the questions of constitu- tional law." In the North, however, it met with a storm of protest. The legislatures of Connecticut, Maine, Ohio, New Hampshire, Vermont, and Massachusetts passed resolutions condemning the decision. Whereas [runs the Maine resolutions], such extra-judicial opinion subordinates the political power and interests of the American people to the cupidity and ambition of a few thousand slaveholders, who are thereby enabled to carry the odious institution of slavery wherever the national power extends, and predooms all territory which the United States may hereafter acquire by purchase or otherwise to a law of slav- ery as irrepealable as the organic constitution of the country; and Whereas, such extra-judicial opinion of a geographical majority of the Supreme Court is conclusive proof of the determination of the slaveholding states to subvert all the principles upon which the Ameri- can union was formed, and degrade it into an engine for the extension and perpetuation of the barbarous and detestable system of chattel slavery: Therefore — Resolved, that the extra-judicial opinion of the Supreme Court in the case of Dred Scott is not binding in law or conscience upon the gov- ernment or citizens of the United States and that it is of an import so alarming and dangerous as to demand the instant and emphatic reprobation of the country. Resolved, that the Supreme Court of the United States should, by peaceful and constitutional measures, be so reconstituted as to relieve it from the domination of a sectional faction. . . .^ Lincoln, who afterward sacrificed slavery and waged war to save the Constitution, viewed this epoch-opening decision with ' more calm, but he refused to accept it as the final word on slavery in the territories. Two or three months after it was rendered, he declared his belief in, and respect for, the judicial department * Senate Mis. Doc, No. 14, 35th Cong., ist Sess., 1857-58. 312 American Government and Politics of the government, whose decisions should control the general policy of the country until reversed by some lawful process. "We think the Dred Scott decision is erroneous," he said to his neighbors at Springfield. "We know the court that made it has often overruled its own decisions, and we shall do what we can to have it overrule this. We offer no resistance to it." ^ But in the heat of the fray he grew less temperate in his views. A year later, in a speech at Edwardsville, he exclaimed: "FamiUarize yourselves with the chahiTof bondage and you prepare your own limbs to wear them. Accustomed to trample on the rights of others, you have lost the genius of your own independence and become the fit subjects of the first cunning tyrant who rises among you. And let me tell you, that all these things are prepared for you by the teachings of history, if the elections shall promise that the next Dred Scott decision and all future decisions will be quietly acquiesced in by the people." ^ Undoubtedly Lincoln accepted without reserve the declaration of the Republican platform on which he was elected in i860: "That the new dogma that the Constitution, of its own force, carries slavery into any or all of the Territories of the United States, is a dangerous political heresy, at variance with the explicit provisions of that instrument itself, with contemporaneous exposition, and with legislative and judicial precedent; is revolutionary in its tendency and subversive of the peace and harmony of the country." In his first inaugural address, he gave a temperate and reasoned view of the place of the Supreme Court in our system: "I do not forget the position, assumed by some, that constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding, in any case, upon the parties to a suit, as to the object of that suit, while they are also entitled to a very high respect and consideration in all parallel cases by all other departments of the government. And while it is obviously possible that such de- cision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time the candid citizen must confess that if the policy of the govern- ^ Nicolay and Hay, Complete Works, Vol. II, p. 321. 2/6/^., Vol. XI, p. no. The Federal Judiciary 313 ment upon vital questions affecting the whole people is to be irrevo- cably fixed by decisions of the Supreme Court the instant they are made, in ordinary litigation between parties in personal actions, the people have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them and it is no fault of theirs if others seek to turn their decisions to political purposes." ^ It was the Democratic party that was to raise the next serious controversy — the party which, in the moment of triumph over the Dred Scott decision, had pledged itself to abide by the "de- cisions of the Supreme Court on all questions of constitutional law." In 1895, the Supreme Court, by a narrow vote of five to four, declared unconstitutional the federal income-tax law passed by a Democratic Congress the preceding year; and when the Democratic national convenfion assembled in 1896, there was a great deal of feeling among the radical elements against what they deemed the unwarranted act of the Court in reversing a previous opinion upholding a federal income-tax law.^ This feeling was intensified by controversies over the use of injunctions in labor disputes.^ Accordingly Senator James K. Jones, as chairman of the com- mittee on resolutions, brought in a platform containing two sharp attacks on the federal judiciary: "Until the money question is settled, we are opposed to any agitation for further changes in our tariff laws, except such as are necessary to meet the deficit in reve- nue caused by the adverse decision of the Supreme Court on the income-tax. But for this decision by the Supreme Court, there would be no deficit in the revenue under the law passed by a Democratic Congress in strict pursuance of the uniform decisions of that court for nearly 100 years, that Court having in that decision sustained constitutional objections to its enactment which had previously been overruled by the ablest Judges who have ever sat on that Bench. We declare that it is the duty of Congress to use all the constitutional power which remains after 'Works, Vol. VI, p. 179-180. ^ For an insight into the political feeling involved in this controversy, see Mr. Choate's celebrated argument in the Income-Tax Case, Readings, p. 283. ^ See above, p. 305. 314 American Government and Politics that decision, or which may come from its reversal by the Court as it may hereafter be constituted, so that the burdens of taxation may be equally and impartially laid, to the end that wealth may bear its due proportion of the expenses of the government." The platform furthermore declared, with special reference to the recent Chicago strike: "We denounce arbitrary inter- ference by federal authorities in local affairs as a violation of the Constitution of the United States and a crime against free institu- tions, and we especially object to government by injunction as a new and highly dangerous form of oppression by which federal Judges, in contempt of the laws of the states and rights of citizens, become at once legislators, judges, and executioners." In vain did Senator Hill of New York protest against these clauses, denouncing them as fooHsh, ridiculous, unnecessary, revolutionary, and unprecedented in the history of the party. Mr. Bryan, in his crown of thorns and cross of gold appeal, repHed to Mr. Hill with vehement directness : "They criticise us for our criticism of the Supreme Court of the United States. My friends, we have made no criticism. We have simply called attention to what you know. If you want criticism, read the dissenting opin- ions of the court. That will give you criticisms. They say we passed an unconstitutional law. I deny it. The income-tax was not unconstitutional when it was passed. It was not un- constitutional when it went before the Supreme Court for the first time. It did not become unconstitutional until one judge changed his mind; and we cannot be expected to know when a judge will change his mind." ^ Some obvious lessons seem to come from a dispassionate review of the judicial conflicts which have occurred in our history. Criti- cism of the federal judiciary is not foreign to political contests ; no party, when it finds its fundamental interests adversely affected by judicial decisions, seems to hesitate to express derogatory opinions; the wisest of our statesmen have agreed on the im- possibility of keeping out of politics decisions of the Supreme Court which are political in their nature; finally, in spite of the attacks of its critics and the fears of its friends, the Supreme Court yet abides with us as the very strong tower defending the American political system.^ * Official Proceedings of the Democratic National Convention, 1896, pp. 190 fif. ''' See Readings, p. 288, and above, p. 164. CHAPTER XVI FOREIGN AFFAIRS The General Direction of Foreign A fairs The Constitution of the United States contains no express provision for a Department of Foreign Afifairs, and says very little about the method by which our foreign relations are to be man- aged. However, it impliedly makes the President the official spokesman of the nation in such matters by giving him the power to appoint our representatives abroad and to negotiate treaties with the approval of the Senate.^ Not only is the President the oflScial representative in communi- cating the will of the United States to other countries; he is the sole official agent through whom the ministers of other countries can communicate with the United States. This has been the rule since the foundation of our government. Mr. Lee, as Attorney- General, pronounced the opinion, in 1797, that foreign ministers had no authority to communicate their sentiments to the Ameri- can people by pubUcations in the newspapers, for that would be considered contempt of this government. While the President of the United States is our official spokes- man in dealing with other nations, the actual conduct of foreign affairs is vested in the Secretary of State. The Department of State, of which the Secretary is the head, was organized in 1789 by Congress.^ The act provided that the Secretary of State should perform such duties as the President should intrust to him, relative to correspondences, commissions, and instructions to the public ministers and consuls sent out from the United States, and also pertaining to negotiations with the public ministers from foreign states or princes.^ In short, the Secretary is to conduct all matters respecting foreign affairs which the President may ^ Readings, p. 183. ^ It was first called the Department 6f Foreign Affairs, but the name was shortly changed. ^Readings, p. 291. 3i6 American Government and Politics assign to his Department, and furthermore, he must manage the business as the President may direct./ The Department of State is thus the legal organ of communica- tion between the President and foreign countries, and is so recog- nized by foreign powers, for it is to the Secretary of State that they address their communications to our government. When the French minister, in 1793, directed a letter to the President of the United States, the Secretary replied that it was not proper for diplomatic representatives residing here to institute corre- spondence with the chief executive.^ Of course, in actual practice this strict official routine is not always observed; many questions of foreign poHcy are undoubtedly considered by the President in his informal relations with the ministers of other countries. In final analysis, the practice depends on the nature of the business and the personaHty of the President. It is through the Secretary of State, also, that the President transmits letters and papers to foreign governments, and the latter must recognize as official only those communications which come through this agency. No officer of the United States, civil or military, should address a foreign government, except through the Department of State, or our diplomatic representatives abroad. Even when the President writes to a foreign ruler an autograph letter of condolence on the death of a relative, it is countersigned and transmitted by the Secretary of State. ^ The important business of the Department has the personal attention of the Secretary. International disputes, questions of general poUcy, or any matters of great weight, are considered by him, and he keeps in close touch with the President, discussing with him, and sometimes with the entire Cabinet, matters of spe- cial significance. ' Readings, p. 200. ^The communications thus made to the Department of State are trans- mitted to the President whenever they are deemed of suflScient importance, or there are special reasons for such an action. ^The President himself may draft a despatch to a foreign country, with or without the advice of his Cabinet, but the despatch is signed by the Secretary, so that all communications appear to be through him ofBcially. Congratulatory letters which the President signs are sometimes even drafted by a clerk in the Department of State. Foreign Affairs 317 Official Representatives of the United States in Foreign Countries The representatives of the United States charged with conduct- ing our relations with other countries fall into two general groups: diplomatic and consular. ^ I. The first of these groups is divided into four classes: (i) am- bassadors extraordinary and plenipotentiary; (2) envoys extraor- dinary and ministers plenipotentiary and special commissioners ; (3) ministers resident; and (4) charges d'affaires. This classification originated in the ceremonials of European courts which gave precedence in processions and social affairs to diplomatic representatives according to their rank. In the inter- national congresses of the seventeenth and eighteenth centuries, there was constant wrangling over the positions to be assigned to representatives of various countries; and it was finally decided by the practice of the nineteenth century that nations were equal when their representatives were assembled in general congress for negotiations ; but in each country the old custom of assigning to diplomatic agents social and official positions in accordance with their rank was continued. For over a century the United States did not send ambassadors extraordinary and plenipotentiary, but was represented abroad only by agents falling within the second, third, and fourth classes. It thus came about sometimes that a minister of the United States was compelled, on public occasions, at receptions, and in inter- views with foreign officers, to step aside in favor of the representa- tive of some small nation, who happened to bear the title of am- bassador. Though all European courts did not follow this rigid system, American ministers were often mortified by treat- ment which was deemed humiliating to the spokesmen of so great a nation. Accordingly, in 1893, Congress provided that our rep- resentative to any foreign country should have the same rank as the representative of that country to the United States.^ There- fore, whenever a nation sends an ambassador to us, we return the honor. This means, of course, that more money must be spent in maintaining the higher rank, but Congress has not made a propor- tionate increase in salaries.^ * Sometimes, however, we take the initiative in raising the rank by mak- ing overtures to other countries, as in the case of Turkey. ^ On this point, Readings , p. 295. 31 8 American Government and Politics All diplomatic representatives of the United States are nom nated by the President and appointed by and with the advic and consent of the Senate. In spite of the special knowledge an experience which are required of those who enter the diplomat] service, our representatives have been too often selected withou regard to their qualifications. Diplomatic appointments ar made too frequently as rewards for political service. As Seen tary Hay once remarked, ''A quiet legation is a stuffed mattres which the political acrobat wants always to see ready under hin in case of a slip." The term of office is uncertain and liable t be brief, for, whenever a change of party occurs at Washingtoi there is a general change in our representation abroad. Thei is no arrangement for prolonged tenure of office, beginning wit the lower grades of the diplomatic service and ending with a pos tion at the foremost court of Europe.^ In nominating ministers, the President should always ascertaii in advance whether any particular appointee is personally aij ceptable to the government to which it is proposed to send him After his appointment, a minister is given a formal letter of cr dence, and on his arrival at his foreign post he must at once ent» into communication with the representative of that government : charge of foreign affairs. It is customary for the minister's pred cessor to remain until his arrival and arrange for his inductic into office. It is also customary for the minister to be receive in audience by the head of the government to which he is a credited; and the ceremonials at that audience are conducted accordance with the custom of the country in which it is hel The necessity of mastering the somewhat intricate ceremoni of foreign courts has been at times a source of trepidation American representatives. Mr. John W. Foster relates an amu ing incident of his reception at the court of Russia in the great h; ^ President Roosevelt, however, in 1905, issued an order that the imp tant office of secretary to embassies or legations should be filled by trans or promotion from some branch of our foreign service, or by the appointmc of persons whose qualifications had been determined by an examinati( Moreover, within recent years, there has been a tendency toward the elir nation of the grosser forms of politics from diplomatic appointments. T service was still further advanced by an executive order of November 1909, making the examinations more difficult. ^ For the illustrative case of Mr. Keiley, see Foster, Practice of Diploma] p. 40. Foreign Affairs 319 of the Anitchkoff Palace. He was required after the interview to retire backward, down the long hall, with his face fixed upon the Grand Ducal party and to make his farewell bow on reaching the door. He states that he succeeded in getting to the entrance without knocking over any furniture, but that his hand fell unfortunately upon one of the two knobs which did not open the door but merely turned round and round, much to his vexation and embarrassment. In the midst of his perplexity, the Tsaravitch, seeing his predicament, cried out in excellent Enghsh: "Mr. Foster, take the other knob!" He at once heeded this advice and bowed himself out of the imperial presence.* A diplomatic mission abroad may be closed by one of two methods. A minister may exercise his constitutional right of resigning at pleasure, or he may be recalled by the President, perhaps at the request of the foreign government. In an extreme case, he might be summarily dismissed by the government to which he is accredited. A diplomatic representative enjoys abroad, under the rules of international law, several special privileges and immunities.^ Any injury or affront to him is an offence against the country which he represents and the principle of international comity. The house in which he resides is under the particular protection of the law ; it may not be entered or disturbed by any one against his will. A minister is entitled to special protection while traveUing on land or sea. He and his official family, including even his domestic servants, are exempt from arrest, — in short, from all criminal and civil processes at all times. The functions of our diplomatic agents may be given in the language of a report made by the Department of State some years ago.^ According to this report the duties of ministers are not confined to the transmission of instructions from their govern- ment. Official communications, indeed, constitute a relatively unimportant part of the minister's business. He should cultivate friendly personal relations with the officers of the government to which he is accredited, so that on proper occasions he may have easy access to them and, having thus gained their confidence in advance, may converse freely with, them; it is, therefore, neces- ^ Foster, The Practice of Diplomacy, p. 60. ^ Moore, International Law Digest, Vol. IV, p. 622. ^Executive Documents, No. 146, p. 17; 48th Cong., ist Sess. 320 American Government and Politics 1 sary for the ambassador to adapt himself to the mode of life of the official class of the country in which he is stationed. To do this, he must study the sensibilities, prejudices, form of govern- ment, and spirit of public Hfe there. When issues arise between his country and the foreign government, he must endeavor to adjust matters as informally and genially as possible, without resorting to any official representations or discussions. Many examples might be cited of American citizens being spared serious inconvenience, imprisonment, or loss of property by the informal and confidential interposition of our ministers with official friends in foreign governments, whereas formal complaints made openly by the citizens might easily have led to tedious discussions and endless delays, to say nothing of the Uability of arousing un- friendly feeling by public controversies. Thus, the real successes of diplomacy are usually not heralded far and wide, and are un- known save to the few immediately involved in them. As the report concludes, a diplomat does his duty by discharging in- numerable daily obligations that attract no attention; and he may be regarded as successful just in proportion to the constant tranquillity which he is able to maintain in the relations of his government with the foreign country. The Honorable Andrew D. White in his Autobiography ^ gives an interesting account of his fife as representative at Berlin and incidentally affords insight into the character of the duties which fall upon a minister abroad. Almost every conceivable case in- volving the relation of Americans to the German government seems to have come within the range of Mr. White's experience. Hardly a day passed without the necessity of engaging in some kind of a skirmish with the German minister of foreign affairs over the rights of the German- Americans in the Fatherland. One Ameri- can, moved by patriotic impulses, denounced, in a crowded railway carriage, Germany, the German people, and the German Imperial Government; and, after passing the night in the guard-house, sought relief at the hands of our minister. Another American, who thought that he ought to get married in BerHn as easily as in New York City, appealed to him for aid in getting through the compUcations of the German law of matrimony. Then there were vexatious questions with regard to the tariff. The commer- 1 Vol. I, pp. 534-547- Foreign Affairs 321 cial interests in Germany, anxious to protect themselves against competition, had secured very naturally some rather severe discriminations against American products, and the American manufacturers affected by these discriminations laid upon the ambassador the heavy duty of conducting negotiations with the German foreign office and members of the imperial cabinet, with a view to securing modifications in the German tariff. Americans in distress, real or imaginary, were always appealing to him. American statesmen, out of natural curiosity and with a view to the social advantages to be derived for themselves and their famiUes, were constantly seeking introductions to high officials. Scholars desiring access to documents and special information of many kinds expected the minister to pronounce the "open sesame"; and American manufacturers and merchants looked to him to discover for them easy methods of approach to German commercial men. The minister's duties went even farther. Any American who wanted his genealogy looked up in Germany felt free to call upon him for assistance; and that large class of persons who were constantly expecting to inherit fortunes abroad likewise relied upon their minister to keep track of their interests. Long practice * seems to have established certain rules for the general guidance of diplomatists.^ A public minister ought not* to act as the agent for the collection of private claims; and he is undern^obhgation to prosecute investigations. for,,^vate persons. It is also the duty of diplomatic representatives of the United States scrupulously to abstain from interfering in the political controversies of the countries to which they are ac- credited. It is not deemed advisable for ambassadors to make pubhc addresses, except on festal occasions, and even then they should be extremely cautious in referring to poHtics in any form. This principle was asserted by the House of Representatives, in 1896, in a resolution censuring Mr. Bayard, then ambassador to Great Britain, for a speech made in Edinburgh in which he crit- icised the protective tariff in the United States rather severely. In addition to the regular diplomatic agents, the United States has often employed special missions for the purpose of conducting negotiations with foreign' countries.^ Such missions are commonly * See the Rules of the Department of 3tate. 2 Moore, International Law Digest, Vol. IV, pp. 565 ff. ' Foster, The Practice of Diplomacy, chap. x. Y 322 American Government and Politics used to manage peace negotiations — the most recent exampL being the commission sent to Paris in 1898 to conclude with the representatives of Spain the details of the treaty which closed the Spanish-American War. Another noteworthy mission was that intrusted by President Fillmore to Commodore Perry, in 1852, authorizing him, as a special plenipotentiary, to open relations with the Emperor of Japan. The results of this mission are too well known to need recounting here.^ II. The United States is also represented abroad by consuls,^ who are primarily our commercial agents and perform a large number of routine duties. Consuls of all grades,^ like ambassa- dors, are appointed by the President with the approval of the Senate. Our consuls are divided into three groups: (i) consuls-general- at-large — travelling representatives who inspect the consulates of the United States throughout the world; (2) consuls-general, who supervise the entire consular systems of particular countries ; * and (3) consuls, ^ stationed at innumerable points in every civiUzed country of the globe. To these three groups may be added vice-consuls and consular agents who act as representatives within any particular consular district under the direction of the regular consul. Inasmuch as the consular service is of special importance to the commercial and industrial interests of the country, there has been growing up within recent years a demand for higher standards * Every American diplomatic representative abroad has a staff of assist- ants, varying in number according to the quantity of business of the country to which he is accredited. The first secretary of an embassy or legation should be a man of long diplomatic experience, well acquainted with the officials and the customs of the country in which he resides. Owing to his special qualifications, he assumes, as charge d'affaires ad interim, all of the duties of a minister in case of the absence of that official. He enjoys also the privileges and immunities of a diplomatic representative in international law. There is a tendency to attach more importance to the office of secretary to legations, and to make that branch of the public service more attractive. There are usually two or three additional secretaries and a number of clerks and interpreters. 2 Moore, International Law Digest, Vol. V, chap. xvi. ' Except vice-consuls and consular agents whose appointments are not rati- fied by the Senate, United States v. Eaton, 169 U. S. R., 331. * In some countries more than one consul-general is appointed. ^ Consuls in exterritorial countries have a peculiar position. Below, p. 325. )le^B Foreign Affairs 323 of efficiency in that branch of public service. As long as the consular offices were regarded as the legitimate spoils of the poHti- cian, little attention was paid to real qualifications, and the service was constantly disturbed by rapid changes in the personnel. It is clear that long experience is a most important qualification for a consul. He should be a thorough master of the language of the country in which he is stationed, and a careful student of the markets, the conditions of the export and import trade, and the opportunities for commerce in that country. Finally, inas- much as his varied and complicated ditties must be conducted under an elaborate code of laws, he needs some legal training. It is evident, therefore, that service to a political organization in some inland town or congressional district does not qualify a man to act as the consular representative of the United States. On his appointment as Secretary of State, Mr. Root took im- mediate steps toward the reorganization of the American consular system,^ and, largely on his initiative. Congress passed, in 1906, a law entitled ''An Act to provide for the Reorganization of the Consular Service of the United States." This law classified and graded the consuls in such a way as to enable the President to extend the merit system to that branch of the public service. Under this Act, the President adopted a method by which impor- tant vacancies are to be filled either by promotions of men whose abihty has been tested in the service, or by the appointment of candidates who have passed oral and written examinations show- ing their fitness for the work.^ The specific powers and duties of consular officers ' are found in the "Consular Regulations of the United States." First and foremost, the consular officer is a commercial representative. He must certify the invoices of goods intended for exportation to the United States ; and to do this correctly he must have a wide knowl- edge of the character and value of the goods produced for export within his particular district. He must, furthermore, be a master of every detail of our tariff system in order that he may cooperate with our customs officials at home in securing a correct valuation ^Reinsch, Readings, p. 658. -Ibid., pp. 671 and 674. 3 Foster, The Practice of Diplomacy, pp. 222 flf.; Moore, International Law Digest, Vol. V, pp. 93 ff. 324 American Government and Politics of all goods and in preventing smuggling and violations of the customs law. An equally important commercial responsibility placed upon the consul is that of aiding in the extension and increase of Ameri- can trade abroad. It is his duty ''to make a deep and special study of the industrial and mercantile conditions existing in his district. He must know what the country needs or would take in raw materials, in commodities, and in manufactured articles. He should learn how these needs are being supplied with particu- lar attention to those of them which the American producer — farmer, miner, manufacturer, or merchant — might supply. He should investigate and report as to whether the American import could not, by a change in form or by variation in manufac- ture, by a different method in packing, by a more convenient accommodation in payment, or in any other way be brought into greater demand, and American trade be thus increased. . . . Also in some countries government contracts are an important item in the competition for import orders. Therefore, it may be wise for us, as some European governments have done, to appoint commercial attaches to some of our legations and em- bassies." ^ In connection with our shipping and seamen the consul has many duties. When an American vessel touches at a foreign port, the master must deposit his register with the consul of the United States, and before clearing he must secure the return of his papers. The consul has some jurisdiction over disputes between the masters, officers, and men of American vessels; he may discharge seamen from their contracts ; it is his duty to hear the complaints of American seamen in foreign ports and also to give relief to the seamen of an American vessel when in distress. The consul is expected to make innumerable reports to the State Department in Washington, which are edited and transmitted to the Department of Commerce and Labor for publication. The functions of the consul are not yet exhausted. He is called upon to intervene with local authorities in behalf of his country- men whenever they get into trouble in his district. He adminis- ters oaths, takes depositions, authenticates public documents, acknowledges deeds and other instruments, acts as a witness to * Reinsch, Readings, p. 652. Foreign Affairs 325 narriages which occur in the consulate, administers, under certain ircumstances, the estates of citizens of the United States dying ,broad. Consuls whose salaries are below $ioooayearmayunder- ake the transaction of private business not conflicting with other onsular duties, though in such cases they act as private persons ,nd not as official representatives. In some states, notably vhina, Siam, Persia, Korea, and Turkey, our consuls exercise, to , greater or less extent, jurisdiction over American citizens /ithin their respective districts, y j j J \ \\) } J The Treaty-making Power The Constitution of the United States provides that the ^resident, by and with the advice and consent of the Senate, wo-thirds of the Senators present concurring, may make reaties; and that treaties so made under the authority of the Jnited States shall stand with the Constitution and the acts of Congress as the supreme law of the land. No express limita- ions whatever are placed on this treaty-making power; and he question has been raised whether the federal government [lay make treaties with foreign countries relating to other ban purely federal matters. Jefferson laid down four rules with regard to the treaty-making lower. He said: (i) it must concern foreign nations; (2) it was atended to comprehend only those subjects which are usually egulated by treaty and cannot be otherwise regulated; (3) the ights reserved to the states must be excluded from the scope I the treaty-making power, for the President and Senate ought lot to be allowed to do, by way of treaty, what the whole federal ;overnment was forbidden to do in any way; and finally (4) the 'resident and Senate should not negotiate treaties on subjects of sgislation in which participation is given by the Constitution to he House of Representatives. The appHcation of the principles lid down by Jefferson would, of course, greatly restrict the * This custom of giving consuls jurisdiction over American citizens origi- ated in the great difference? which existed between the law and procedure f many non-European countries and that of the United States — a differ- nce which made the citizens of the United States unwiUing to submit to the Lirisdiction of native tribunals. Such jurisdiction was once possessed by ur consuls in Japan, but the law of that country took on more and more the orm of the Western law, and our consular jurisdiction was abolished in 1899. 326 American Government and Politics treaty-making power of the federal government. Nevertheless it was once said by the Supreme Court that whenever an act of Congress would be unconstitutional as invading the reserved rights of the states, a treaty to the same effect would be uncon- stitutional.^ However, in practice these limitations are not recognized. Indeed, the courts have held vahd a number of treaties relative to matters which are ordinarily regulated by state governments. For example, a Russian recently died in Cambridge, Massachu- setts, leaving some personal property, and according to the law of that commonwealth the local officer undertook the settlement of the estate of the deceased. The Russian consul for the dis- trict, however, showed that, by a treaty between his country and the United States, he had the right to administer the estates of his deceased countrymen there, and his claim was upheld.^ It is also maintained on good authority that the federal govern- ment can intervene in the administration of the criminal law of a state, where the treaty rights of foreigners residing in the United States are involved. President Harrison in a message in 1891 said: " It would, I beHeve, be entirely competent for Congress to make offences against the treaty rights of foreigners domiciled in the United States cognizable in the federal courts. This has not, however, been done, and the federal officers and courts have no power in such cases to intervene, either for the protection of a foreign citizen or for the punishment of his slayers." ^ Congress, notwithstanding the suggestion, has not yet seen fit to confer such jurisdiction on the courts. This right of the federal government to make treaties pertain- ing to matters which are clearly within the sphere of state legis- lation raises many very practical questions, and will require far more serious consideration as our relations with other peoples increase. An excellent example of the importance of this prob- lem is afforded by the recent dispute over the exclusion of Japanese children from the regular pubhc schools of San Fran- cisco, which, it was claimed by Japan, was a violation of treaty rights. Now, there is no doubt that the federal government or- dinarily has no power whatever to interfere with the public ^ Prevost V. Greneaux, 19 Howard, 7. 'Moore, International Law Digest, Vol. V, p. 125. ' Messages and Papers of the Presidents, Vol. IX, p. 183. Foreign Affairs 327 schools of a state, for a state may abolish schools if it pleases, or prescribe such conditions as it sees fit. It was strongly urged by Democratic members of Congress that if the President and Senate could make treaties disposing of matters so distinctly reserved to the states, the treaty-making power was above and beyond the Constitution, and the rights of the states were placed at the disposal of the executive of the nation and the senatorial council. It so happened that it was not necessary to come to a final determination on the principle involved in the San Francisco school question, but it is clearly evident that the issue raised in that controversy was of no mere temporary significance. Furthermore, in actual practice, matters are regulated by treaty which may at the same time be the subjects of legislation by Congress. For example. Congress has power to regulate com- merce with foreign nations, but the President and Senate, by vir- tue of their treaty-making power, may make stipulations with foreign countries regulating such commerce.^ The Negotiation of Treaties In the negotiation of treaties, the President may employ such agencies as he chooses. He may commit the undertaking to the Secretary of State; he may employ an ambassador, a minister, a charge d^af aires, or, if he likes, he may select some private person who, in his opinion, is peculiarly fitted for the work by his skill, or acquaintance with the language and customs of the country with which the negotiations are carried on. In case a special agent is appointed, confirmation by the Senate is not necessary. The extent to which the Senate under its right to advise and consent may participate in the actual negotiation of treaties is by no means settled. On the one hand, it has been maintained that it is the constitutional right of the President to negotiate treaties without any interference from the Senate, and that he need only submit the final document to that body for action.^ On the other hand, it is claimed by eminent authorities that the Senate may share in treaty-making at any stage, and may even advise the President to undertake the negotiation of any partic- ular treaty. Certainly the framers of the Constitution believed that the ' Below, p. 392. ^ On this matter, see Readings, p. 297, 328 American Government and Politics- President should consult the Senate in the negotiation of treaties; and President Washington* stated to a committee of that body that in all such affairs even oral communications were necessary. He argued that in negotiations there are many matters that re- quire not only consideration, but sometimes an extended dis- cussion which would make written communications tedious and unsatisfactory. Accordingly, he visited the Senate in 1789 to lay before it papers relating to the negotiation of a treaty with an Indian tribe. He made a brief statement and then put several questions to the Senate^ asking its advice in the form of affirma- tion or negation. The Senate postponed action on these ques- tions, but finally prepared answers to them. Although Washington later ceased to make personal visits to the Senate, he constantly consulted with that body on the nego- tiation of treaties, by means of written communications. For example, in 1790, he sent to the Senate three questions relative to the negotiation and terms of a certain treaty. However, he did not always follow this practice,^ and his successors have seen fit to do so only under exceptional circumstances. For instance, President Polk, in 1846, laid before the Senate a draft of a treaty presented to the Secretary of State by the Brit- ish envoy proposing an adjustment of the Oregon question; and asked the advice of the Senators as to what action, in their judgment, was proper to take in reference to the treaty. There were, of course, peculiar poUtical reasons ^ which actuated the President on this occasion, but he justified his conduct by a reference to the practice of President Washington. This example was likewise followed occasionally by President Lincoln and President Grant; and in 1884 President Arthur submitted to the Senate a proposal from the King of the Hawaiian Islands, relat- ing to a reciprocity treaty, before taking the first steps in its negotiation. In more recent times it has been the custom of the Secretary of State to consult influential Senators ^ with reference not only to treaties already negotiated, but also as to the advisability- of opening conferences with the representatives of foreign powers ' For example, note the history of the Jay treaty with Great Britain. ^ Reeves, Diplomacy of Tyler and Polk, p. 263. 3 Especially with the members of the important Senate committee' on foreign relations. Foreign Affairs 329 >n particular matters. Mr. Hay ^ frequently asked the Senators vhat they thought of various propositions, whether the subject- natter was a proper one for negotiation, and whether other pro- dsions should be incorporated. Senator Bacon, in 1906, stated hat it was his belief that Secretary Hay conferred with many Senators either in writing, or in person, as to the general arbitra- ion treaty while it was in process of negotiation. Mr. Bacon urther said: "I recollect distinctly the Alaskan treaty. Time ifter time and time after time Mr. Hay, then Secretary of State, ■onferred with Senators, and, I presume, with all the Senators, LS to the propriety of endeavoring to make that treaty and as to he various provisions which should be incorporated in it, recog- lizing the deHcacy of the situation; and the provisions of that reaty were well understood by members of the Senate and ap- )roved by members of the Senate before it was ever formulated ind submitted to Sir Michael Herbert." ^ Not only has the Senate thus asserted the right to participate in he negotiation of treaties ; it sometimes seeks to initiate, by way )f resolution, negotiations with foreign countries. Furthermore, L claim to the right of sharing in the initiation is sometimes made )y the House of Representatives. For example, the Senate and :he House once adopted a resolution requesting the President to )pen negotiations with other powers, with a view to making ar- )itration treaties providing for the peaceful settlement of inter- lational disputes. The President later complied with this sug- gestion. Congress even went so far, in 1902, as to pass an act idvising the President as to the terms which should be incorpo- ated in a treaty.^ When the terms of a treaty are all adjusted with the foreign )ower, the final draft is laid before the Senate, and it may be ' Secretary of State from 1898 to 1905. ^Congressional Record, Vol. XL, Part 3, pp. 21 29-2130. ' Even the House of Representatives alone has gone so far as to attempt o participate indirectly in the negotiations of treaties. It can with perfect )ropriety request the President to submit to it papers relating to the work »f the executive department; and in 1796 it asked the President, by resolu- ion, to lay before it a copy of the instructions to the minister of the United itates who negotiated the treaty with Great Britain, together with other locuments relating to the treaty, excepting such papers as the President night deem improper to disclose. Washington responded that the House lad no share in the treaty-making power and declined to transmit the papers. 330 American Government and Politics approved, amended, or rejected. Like nominations to federal offices, treaties are considered in an '' executive session," which is supposed to be secret. In practice, however, its transactions are invariably reported in more or less accurate detail in the press.^ When the Senate approves a treaty, it is sent to the President, who ordinarily completes the process by the formal exchange of ratifications with the representative of the foreign country. If he sees fit, he may refuse to take this final step, and thus prevent a duly signed and approved treaty from going into effect. This power of holding up a treaty is based on the ground that, through the agents of the federal government abroad, the President has access to sources of information closed to the Senate, and may discover at a late hour satisfactory reasons for not exchanging the ratifications. If the Senate amends a treaty, the President, of course, must secure the acceptance of the changes by the for- eign power concerned. When the treaty is at last completed, it is made a part of the law of the land by an official proclamation. World Politics It is an American tradition that the United States enjoys a splendid isolation from the rest of the powers of the world — especially of Europe. Accordingly, the entrance of the United States into "world politics" since the Spanish War is quite com- monly regarded as a violation of our historic poUcy. This tra- dition of isolation runs back to the beginning of our history as an independent nation. It was voiced by Washington in his Farewell Address, in which he advised his countrymen to extend their commercial relations, but warned them to have as little poHtical connection with Europe as possible.^ "Europe," he said, "has a set of primary interests which to us have none, or a very remote relation. Hence she must be engaged in frequent controversies, the causes of which are essentially foreign to our concerns. Hence it would be unwise in us to implicate ourselves by artificial ties in the ordinary vicissitudes of her politics, or the ordinary combinations and colHsions of her friendships or en- ^Reinsch, Readings, p. 179. ^Of course he had in mind primarily offensive and defensive alliances such as that made with France in 1778, which caused so much trouble when war broke out in 1 793 between that country and Great Britain. Foreign Affairs 331 ciities. ... It is our true policy to steer clear of permanent lliances with any portion of the foreign world." The very commercial interests, however, which Washington rged his countrymen to develop in the world's markets have een, from the beginning, drawing us more and more into he current of world poUtics; and at no time has the United tates refused to defend American commercial enterprise in any art of the globe. When the Pasha of TripoU, discontented dth the tribute paid him, chopped down the American flag, 'resident Jefferson immediately ordered a fleet to the Medi- erranean. Commodore Preble, who was sent over in 1803, ombarded the city of Tripoli and forced the Pasha to come to srms. Again, in 181 2, the Dey of Algiers grew restive on hearing f the war between the United States and Great Britain, com- lained of the small amount of tribute which he received, and xpelled the American consul-general and American citizens :om his territory. At the close of the war, Congress passed an ct for the protection of American commerce against Algerian ruisers; Bainbridge and Decatur, with two squadrons, were peedily despatched to the Mediterranean, and in a short time be Dey of Algiers came to terms, agreeing not to levy any more ribute on the United States. Thus by our vigorous action we elped to rid the Mediterranean of the Barbary freebooters. Again, in 1843, immediately after Great Britain had battered own the Chinese wall of exclusion, the federal government sent 'aleb Gushing to China to obtain for the United States those ommercial privileges which had been so recently extended to tie British. It was due to the initiative of the United States tiat Japan was opened to Western trade. In 1853 Commodore latthew C. Perry, in command of a squadron of four vessels, and earing a special mission from the United States, demanded as right, not as a favor, "those acts of courtesy which are due rom one civilized nation to another"; and by a firm policy rought the Japanese imperial government to terms in the treaty f March 31, 1854. Many examples might be given illustrating the forceful manner 1 which the government has protected American commercial [iterests in the four corners of the world; but it is sufficient to ay that we have been a world power, as far as has been neces- ary, from the beginning of our history. In a word, the protection ^^2 American Government and Politics of our government has steadily advanced with the extension of our material interests, and the foreign policy of the last ten years is no breach in our historical development. President Taft's telegram to the Regent of China in the summer of 1909 demand- ing for American financiers a share in the new Chinese railway loan is really no departure from the policy that led to the demand of the open door through the mission of Caleb Cushing more than half a century before. In a way, of course, this is not a violation of the principles laid down by Washington in his Farewell Address, for it was against entangling alHances — not commercial relations — that he warned us. The protection of those very commercial inter- ests, however, has drawn us into intimate connections with other foreign powers, and may at any time lead to the necessity of cooperating with them in military expeditions. For example, American troops were found alongside those of Russia, Germany, Japan, Britain, and the other powers in the recapture of Peking and the reestablishment of foreign rights in Chinese territory after the disorders of 1900. A near approach to a formal alliance in the protection of American interests was made in November, 1908, when Ambassador Takahira of Japan, and Secretary Root for the United States, by an exchange of formal notes, announced their agreement on the following principles: the two countries are to develop their commerce on the Pacific Ocean freely and peacefully; they have no aggressive intentions, but wish to main- tain the status quo in that region and the open door in China ; they are firmly resolved to respect each other's territories; they are determined to preserve the independence and integrity of China and the principle of equal opportunity for all countries to carry on trade and commerce there; and, in case of any event disturb- ing the above principles, the two governments will confer on the most useful measures to be taken. The United States, furthermore, participates from time to time in the assemblies and councils of foreign nations. American representatives were sent to Berlin, in 1884, where a European Congress was held for the purpose of adjusting territorial ques- tions in Africa and deciding the fate of the Congo Free State. Again, in 1906, American representatives were sent to the con- ference at Algeciras in Spain, where certain conflicts among European powers over their respective interests in Morocco were Foreign Affairs j^^ adjusted. The United States also took a very prominent part in the Hague conferences of 1899 and 1907 ; and within recent years, especially through the activities of Secretary Blaine and Secre- tary Root, we have been drawn into closer commercial and intellectual relations with the Latin-American republics. It is apparent that the "splendid isolation" of the United States, as contemplated by many early poHtical theorists, has never been possible in practice. Moreover, no political doctrines with re- gard to our independence from the rest of the world are strong enough to overcome those material and moral forces which are linking our destinies to those of the world at large. The Monroe Doctrine No description of the foreign poHcy of the United States is complete which does not take into account the Monroe Doctrine as appUed to the Latin-American countries in their several rela- tions with the European powers. It would be misleading, however, to attempt a definition of the Monroe Doctrine in the abstract; for it was enunciated under pecuHar historical circumstances and has taken various forms from time to time. It originated during the first quarter of the nineteenth century, partially as the result of the fear of European despotism enter- tained in the United States, but more especially as the result of an attempt to secure for American traders and nierchants a large share of the economic advantages to be derived from the inde- pendence of the former Spanish colonies. (/Spain had system- atically endeavored to monopolize the trade of her American possessions; and thus the United States and England — the two great trading nations especially anxious to develop their interests in Latin- America — were legally excluded from a rich field of enterprise.^ When Napoleon placed his brother Joseph upon the throne of Spain, in 1808, the Spanish-American colonies re- sisted the rule of the new monarch and began to taste the sweets of commercial freedom before their long struggle for indepen- dence was brought to a successful conclusion. American and EngUsh merchants were quick to seize the opportunity of open- ing up profitable trade relations with these new states which, after * Smuggling had been going on, however, for more than two centuries in spite of Spain's protests. 334 American Government and Politics three centuries of subjection to Spanish monopoly, were only too eager to seize the occasion to buy freely in the cheapest market and sell in the dearest. Spain, however, was loath to surrender these colonies and the lucrative business with them; but when, in 1820, she was preparing an expedition to suppress the war for indepen- dence in America, a serious revolution broke out within her own borders and quickly spread over into Italy. It looked for a time as if the whole settlement, which had been reached by the powers at Vienna in 181 5 after the downfall of Napoleon, would be undone by revolutionary violence. Anticipating such a danger, Austria, Prussia, England, and Russia had formed an aUiance in 18 15 for the express purpose of maintaining the re- stored Bourbon king in France and preventing a renewed disturb- ance of the peace of Europe. In order to effect their ends, these powers agreed to hold periodical meetings for the purpose of reviewing their interests and taking such measures as should be deemed necessary for the preservation of pubUc order. Shortly before this agreement was reached, the monarchs of Austria, Prussia, and Russia, on the suggestion of the Tsar Alexander I, had formed a sort of a pious alUance, according to which the three rulers were to view one another as brothers and "delegates of Providence to govern three branches of the same family," and to base their policies " upon the sublime truths which are taught by the eternal religion of God our Saviour." ^ This agreement was known as "The Holy Alliance" — a term which was afterwards quite indiscriminately applied to the com- bined powers of Europe in their efforts to maintain the settlement of Vienna. As soon as the revolution of 1820 broke out in Spain, Metter- nich, the astute Austrian diplomat, invited Russia, Prussia, France, and England to unite in suppressing the development of " revolt and crime." In 1822, the representatives of these powers met at Verona to discuss their common interests and decide what should be done with Spain. At this Congress all of the powers, except England, were anxious to devise a plan by which ^ For this remarkable document, see Robinson and Beard, Readings in Modern European History, Vol. I, p. 384; and for a more extended account of the European situation, see Robinson and BesirdyJDevelopment of Msidern Europe, Vol. I, p. 357. Foreign Affairs 33 c they might aid Spain in reconquering her rebelHous colonies, although as a matter of fact they were really in no position to afford the necessary military support. England, however, refused to cooperate, partially because of the more liberal spirit prevaiHng among her people, but more especially because her economic interests were certainly on the side of the revolutionary Spanish colonists with whom she had developed a lucrative trade. The United States occupied about the same economic position; and, in view of what seemed a serious intervention in American affairs by the great despotic European powers, President Monroe, in his message to Congress of December, 182^, called attention to ^ the impending dangers, and added : " We owe it therefore to candor and to the amicable relations existing between the United States and these powers to declare that/We should consider any attempt, on their part to extend their system to any portion of this hemi-/; sphere as dangerous to our peace and safety y^ With the existing colonies or dependencies of any European power we have not interfered and shall not interfere. But with the governments who have declared their independence and maintained it, and whose independence we have on great consideration and on just prin- ciples acknowledged, we could not view any interposition for the , purpose of oppressing them or controlling in any other manner their destiny by any European power in any other light than a manifestation of an unfriendly disposition toward the United States." In the same message in which this doctrine was an- nounced there was another significant declaration, called forth by a decree of 182 1 issued by the Tsar of Russia, claiming the north- west shore of North America down to the 51st parallel. With regard to this claim President Monroe declared, "that the Ameri- can continents, by the free and independent condition which they have assumed and maintain, are henceforth not to be considered as subjects for future colonization by any European powers." In the course of time the principles announced in this famous message came to mean, practically, that the United States, while respecting the existing rights of European nations in this hemi- sphere, would oppose any intervention interfering with the free- dom of self-government in any territory whose inhabitants had cast off European rule. When a dispute arose between Gr£^t Britain and Venezuela over the boundaries of their respective territories, Mr. Olney, then Secretary of State under Mr. Cleve- 336 American Government and Politics land, declared (in 1895) that, while the United States did not intend to help relieve any Latin- American state from its obliga- tions under international law, and did not intend to prevent any European government, directly interested, from enforcing such obligations or inflicting punishment for a breach of them, it would not permit any European country or combination of countries to "forcibly deprive an American state of the right and power of self-government and of shaping for itself its own poUtical fortunes and destinies." The strong stand taken by President Cleveland in this interpretation of the Monroe Doctrine kindled the war spirit; but fortunately the dispute was peaceably settled by arbitration. Again, in 1901, when Germany was about to bring force to bear upon Venezuela for the satisfaction of claims, President Roosevelt declared: "the Monroe Doctrine is a dec- laration that there must be no territorial aggrandizement by any non-American power at the expense of any American power on American soil. . . . We do not guarantee any state against punishment, if it misconducts itself, provided that punishment does not take the form of the aquisition of territory by any non- American power." Alongside this interpretation of the Monroe Doctrine as "the principle of the limitation of European power and influence in the western hemisphere" ^ has come a correlative doctrine that the United States must accept, to some degree, responsibility for the conduct of the Latin- American countries which are to be defended against European aggrandizement. This correlative principle President Roosevelt announced in 1904: " If a nation shows that it knows how to act with decency in industrial and poUtical matters, if it keeps order and pays its obhgations, then it need fear no interference from the United States. Brutal wrong-doing or impotence which results in the general loosening of the ties ofciviUzed society may finally require intervention by some civiHzed nation, and in the western hemisphere the United States cannot ignore its duty." ^ This same view was taken by President Taft in his message of 1909: "With the changed circumstances of the United States and the republics to the south of us, most of which have great natural resources, ^ J. B. Moore, American Diplomacy, p. 162. ^ Moore, op. cit., p. 165. See above, p. 197, for the Santo Domingo affair illustrating this point. Foreign Affairs 337 able government, and progressive ideals, the apprehension which ive rise to the Monroe Doctrine may be said to have nearly Lsappeared, and neither the doctrine as it exists nor any other DCtrine of American poHcy should be permitted to operate for le perpetuation of irresponsible government, the escape of just Dhgations or the insidious allegation of dominating ambitions 1 the part of the United States." In other words, the Monroe Doctrine seems to mean that, hile the United States will not permit any European power to ;ize new dominions in the western hemisphere, it will ordinarily low all powers to safeguard property rights in any Latin- merican country. International Law and Peace In common with the other civihzed nations the United States jcognizes international law as a part of its law. International ,w is a vast complex of rules and regulations governing the rela- ons of nations in time of peace and in time of war — rules which re to be found in treaties and agreements, the statutes of various 3untries, the doctrines laid down by high judicial tribunals, in the rinciples enunciated by authoritative writers, and finally in the jcognized practices of nations. It is a mistake to regard international law as nieifily a body of miable theories that may be broken at will by any nation. It ; true that there is no world executive authority or judicial ribunal to enforce the practices of international law by punishing ff ending nations; and this has led many legists to deny even the a me of "law" to the rules governing the intercourse of nations, n the ground that they have no sanction beyond the mere volun- ary approval of individual nations. This view overlooks the ict that there are other sanctions than those of mere material orce and that the very interests and necessities of each nation ompel it to observe certain well-defined rules in the conduct of ts business with other countries. The domestic law of every lation is constantly being violated, notwithstanding the sanction )f force upon which it rests. For instance, American citizens )ften violate with impunity the customs laws in spite of the pen- dties which may be imposed for the offence; but the United States vould not think of seizing arbitrarily a British merchant vessel ^^S American Government and Politics in the harbor of New York and thus run the risk not only of serious commercial loss, but also of a costly war. It is impossible, of course, in a treatise of this character to go into the content of international law at any length, but -some notion of the principles which it embodies seems necessary to give definiteness and reality to the statement that international law is not a collection of theories and moral principles, buL^ substantial body of rules and regulations appUcable to the con- duct of intercourse between states. In international law we find laid down the principles defining what may be regarded as an independent state (which is the "person" or "subject" of international law); the fundamental rights and duties of states; the methods by which new states come into existence and are recognized; the character of the property of a state; methods of acquiring property; the territorial waters of a state; the privi- leges and immunities of diplomatic agents; the jurisdiction of a state over aliens within its borders; piracy; grounds and condi- tions upon which one state may interfere in the affairs of other states; principles of expatriation and naturalization; the mak- ing and abrogating of treaties; arbitration, mediation, and acts mitigating the rigors of war. These matters are treated under that branch of international law known as the law of peace. Even the practices of war are regulated by well-accepted rules. The law of war, for example, governs such topics as the declaration of war, non-combatants, privateering, the prisoners of war and their treatment, the instruments of war and bom- bardment of towns, and the use of explosives; the effect of war upon the property of belligerent states, their subjects and the subjects of neutral states; the effect of mihtary occupation upon property on land; the rights and duties of neutrals; contraband of war; blockade; right of search; and prize courts. On all of these topics of international law definite information is to be secured from decisions of courts, treaties, statutes, official documents, and authoritative writers; and while a variety of opinions may be entertained by the legists of different nations, it must be remembered that lawyers and courts are by no means always agreed as to what the domestic law is on any particular point.^ ' The student will do well to refer at this point to the monumental collec- tion of material on international law prepared by Professor J. B. Moore, Foreign Affairs 339 Strictly speaking, international law is not a body of world- Lw, but a body of rules which is recognized by each civilized ower as a part of its domestic law. "International law," lid Mr. Justice Gray of the Supreme Court of the United States, 1 an opinion,^ "is part of our law,^ and must be ascertained and dministered'by the courts of justice of appropriate jurisdiction s often as questions of right depending upon it are duly pre- mted for their determination. For this purpose, where there . no treaty and no controlUng executive or legislative act or idicial decision, resort must be had to the customs and usages E civiUzed nations ; and as an evidence of these to the works of irists and commentators who by years of labor, research, and >fperience have made themselves pecuHarly well acquainted ith the subjects of which they treat. Such works are resorted ) by judicial tribunals, not for the speculations of their authors Dncerning what the law ought to be, but for trustworthy evidence [ what the law really is." An international tribunal independent of the governments of articular states, enforcing principles of international law, and ijudicating disputes between different nations, is as yet an un- jaHzed dream of those who hope for the establishment of world eace. Nevertheless, it is contended that we have made gigantic ;rides in that direction, although the complete ideal may never e attained. From time to time during the nineteenth century, le United States has resorted to the practice of arbitration for le purpose of adjusting controversies with foreign countries, he first treaty signed with Great Britain in 1794 after the con- usion of peace provided for three tribunals or commissions to rbitrate certain questions which threatened to bring on a new )nflict between the two countries; and many irritating contro- ersies over the boundaries between the United States and anada and the fishing rights of the respective countries have een adjusted by way of arbitration. iternational Law Digest (8 vols., Government Printing Office). Even lOugh making no attempt to go into the technicalities of these subjects, the acher should impress upon the student the notion that international law not merely a body of theories elaborated by the enthusiasts for intema- 3nal peace. ^i75U. S. R., 677. 2 The Constitution recognizes the law of nations by authorizing Congress define offences against it. 340 American Government and Politics The most famous case of arbitration in American history was that of "the Alabama Claims," which grew out of depredations committed upon American merchant vessels during the Civil War by ships which Great Britain allowed to be constructed in British ports which were used as a base of operations for the Confederate government. After a good deal of angry dispute, the two countries agreed by a treaty of 187 1 to submit the whole matter to a tribunal composed of one citizen of the United States, one British subject, and three other members, named by the King of Italy, the President of Switzerland, and the Emperor of Brazil, respectively. This tribunal met in Geneva, and after prolonged sessions it came to the conclusion that with regard to certain vessels the British government had violated or neglected its duties as a neutral power; and an award of damages aggregating $15,500,000 was rendered in favor of the United States, and paid, in spite of the protest of the British member of the tribunal, and some feeling of resentment in Great Britain.^ The United States, therefore, had had a long experience in the peaceful adjustment of controversies, when it was invited, in 1898, in common with the other powers of the world, by the Tsar Nicholas II, of Russia, to participate in a conference at the Hague for the purpose of discussing the subject of reducing excessive armaments. The first Hague conference, which met in 1899, was unable to come to an agreement on the main ques- tion, and merely recommended the nations to examine the possi- bility of Hmiting armed forces by land and sea. The powers however, agreed to recognize the right of any nation, without prejudice, to offer its services to countries at war with one an- other, as an aid in friendly mediation. The first conference, fur- thermore, recommended parties unable to come to an agreement by negotiation to submit matters not involving national honor or vital interests to an investigation by an impartial com- * In addition to resorting to arbitration in a large number of cases, the government of the United States has been instrumental in preventing war, and in restoring peace, by offering to countries on the eve of war or already at war its services in settling the dispute or in terminating the armed con- flict. For example, in 1871, it tendered its good offices in a war between Spain and certain South American republics, and secured an agreement to an armistice which eventually resulted in a treaty of peace. In 1905 Presi- dent Roosevelt was instrumental in bringing the Russo-Japanese war to a close. Foreign Affairs 341 mission of inquiry, to be instituted by an arrangement between the parties to the controversy. Finally, the conference agreed upon the establishment of a permanent court of arbitration to consist of not more than four persons from each country, se- lected by the respective nations from among their citizens, "of recognized competence in international law, enjoying the highest moral reputation." Whenever two powers are in a controversy, they may submit the issue to a tribunal selected from this long list of eminent jurists. In common with the other powers of the world the United States has concluded with many countries arbitration treaties, agreeing to submit to arbitration questions which do not affect national independence or honor. ^ The results of the first Hague conference led President Roose- velt, in 1904, to propose a second meeting of the powers; but he yielded the honor of issuing the call to Nicholas II, who in the following year invited the nations of the world to participate in the discussion of certain important questions, including the peaceful settlement of international disputes and the regulation of warfare on land and sea. The conference (1907) could not agree upon any plan for reducing mihtary and naval expenditures or estabhshing general compulsory arbitration. It devoted itself largely to the regulation of the actual conduct of war, the treat- ment of prisoners, the bombardment of towns, the rights of neutrals, etc., and dismissed the question of Hmiting armaments by a resolution declaring that "it is highly desirable that the governments should resume a serious study of the question." ^ See Readings, p. 305, for an illustration. CHAPTER XVII NATIONAL DEFENCE Congress enjoys an unlimited power to raise and support armies, subject to the constitutional requirement that military appropriations shall not be for a longer term than two years. Under this power, Congress has provided a land force of two great branches: the Army of the United States and the Militia. The Army and Militia of the United States I. The Army of the United States, commonly known as the regular or standing army, is organized under acts of Congress^ which provide the maximum number of men and officers, the term of service, the various ranks and grades, the strength of the regiments and other divisions, and, in a word, the most elaborate details of the system.^ The total enlisted strength of the army is fixed by law at not more than 100,000 men,^ and the number in actual service, subject to this restriction, is determined by the President. According to the report of the Secretary of War for the year 1908, the regular army was composed of 41 16 officers and 68,512 enlisted men, making a grand total of 72,628.^ This branch of the army is recruited by volunteers who en- list for a term of three years' service. For the defence of the whole American empire the regular army is distributed among nine continental departments and the Philippines division. Each of these great departments has its headquarters and its fortifications, barracks, and military sta- tions at various points, and is in command of a Brigadier-General ' See especially the acts of February 2, 1901, January 25, 1907, and April 23, 1908. ^ For an illustrative extract, see Readings, p. 309. ^H ^ Exclusive of officers. ^^M, *This army is organized into fifteen regiments of cavalry, six regiments of field artillery, thirty-one regiments of infantry, a coast artillery corps, three battalions of engineers, a staff corps, and departmental organization. 342 National Defence 343 or Major- General to whom troops are assigned according to the exigencies of defence. 2. The second branch of the land force of the United States is the MiUtia, estabUshed by Congress under the constitutional provisions authorizing it to organize, arm, and discipUne the militia, govern such parts as may be employed in federal ser- vice, prescribe its discipUne, and call it into the service to execute the laws of the Union, suppress insurrections, and repel invasions. Under this power. Congress passed on January 21, 1903, and May 27, 1908, two noteworthy acts^ designed to bring all the available men legally within the service of their country, and to make the organized miUtia of the several states, territories, and the District of Columbia more immediately and generally ser- viceable in time of need.^ Under these laws all able-bodied citizens of the states, territories, and the District of Columbia, between the ages of eighteen and forty-five, are declared to be members of the miUtia and are divided into two classes: the organized miUtia, known as the National Guard (or such other names as the states may give to their respective quotas), and the Reserve MiUtia.^ Enlistment in the National Guard is purely voluntary, and many men join for social purposes. The ordi- nary citizen does not even know that he is in the Reserve Militia. It is further provided by this new legislation that the Secretary of War may issue to the organized militia of the several states miUtary stores of all kinds and arrange for its active participa- tion in the manoeuvres and field practice of the regular army. The federal authorities detail officers to attend encampments of the state miUtia; and in 1907 they inaugurated a plan of having the miUtia participate with the regular troops in their exercises at certain places. Thus we have estabUshed a combination of a regular army, always on duty and ready for service, with a state miUtia, which may be, in time of peace, discipUned and pre- pared to take its place in the federal system. It is now hoped that, in case of an outbreak of hostiUties, the confusion, delays, and readjustments which have accompanied the beginnings of every war in our history, may be obviated; and that the members of the state miUtia, having acquired definite previous experience ' See Report of the War Department for 1Q08, Vol. I, pp. 33 ff. ^ Readings, p. 308, for an extract from the law. 344 American Government and Politics under federal supervision will be able at once to assume their duties in the regular line of defence.^ However, some claim that the new system is no considerable improvement. This great force is not only at the disposal of the federal gov- ernment in case of invasion or war with a foreign nation or rebel- Hon against the authority of the United States. Whenever the President is unable, with the regular force at his command, to execute the laws of the Union, he may call out such number of the miUtia of any state or territory or the District of Columbia as he may deem necessary to meet the situation. He does this under authority of an act of Congress. This unquestionably puts a large power in the hands of the President, for it is left to his discretion to determine when it is necessary to call out the miUtia and the extent to which it may be employed. "The power thus confided by Congress to the President is doubtless of a very high and deHcate nature," said Justice Story,^ commenting on an earlier statute of a similar character. "A free people are naturally jealous of the exercise of mihtary power; and the power to call the miUtia into actual service is certainly felt to be one of no ordinary magnitude. But it is not a power which can be executed without a correspond- ent responsibility. . . . By whom is the exigency [as to the necessity of using the miUtia] to be judged of and decided? Is the President the sole and exclusive judge whether an exigency has arisen? . . . We are all of the opinion that the authority to decide whether the exigency has arisen belongs exclusively to the President and that his decision is conclusive upon all other per- sons. We think that this consideration necessarily results from the nature of the power itself and from the manifest object con- templated by act of Congress." Another branch of the army of the United States in war time has been composed, heretofore, of special volunteers. Every one acquainted with history knows how, in the War of 1812, the Mexican, the Civil, and the Spanish wars, great reUance was placed upon the citizen soldiers called into service by procla- mation of the President under authority of acts of Congress.^ * The total number of the organized militia, including commissioned officers and enlisted men, is estimated (1909) at 110,941, and unorganized reserve militia at 14,987,011. 2 Martin v. Mott, 12 Wheaton, 19. ^ Readings, p. 310, I National Defence 345 It has been the usual practice to accept, in the first instance, members of the state militia who desired to join the army, and then call for volunteers who had not even been members of the militia. The high service rendered by these soldiers is un- questioned; according to Brigadier- General Carter, the world never saw better armies than those composed of the volunteers of 1861-65.^ Under the present national military system, how- ever, the organized miHtia or National Guard can be readily called into action, and owing to the previous training under federal supervision, described above, it ought to be available for effective work without all the usual delays in drilUng and equipping. Nevertheless, in a long war, going beyond the strength of the regular army and the organized militia, the special volunteer method would doubtless be again employed; and resort might be had to drafting, as in the Civil War. Under its cqnstitutional authority. Congress has provided an elaborate set of regulations for the Army of the United States. Soldiers in mihtary service are under special rules designed to preserve discipHne and good order in time of peace as well as war. The enforcement of military law is placed in the hands of spe- cial military courts known as courts-martial. A court-martial is not regarded as a portion of the federal judiciary, but belongs to the executive department of the government, and is not limited by those provisions requiring indictment by grand jury and trial by jury, as in ordinary cases. "With the sentences of courts martial, which have been convened regularly and have proceeded legally and by which punishments are directed, not forbidden by law or which are according to the laws and customs of the sea, the civil courts have nothing to do, nor are they in any way alterable by them. If it were otherwise, the civil courts would virtually administer the rules and articles of war irre- spective of those to whom that duty and obligation has been confided by the laws of the United States, from whose decisions no appeal or jurisdiction of any kind has been given to the civil magistrates or civil courts. But if a court martial has no juris- diction over the subject-matter of the charge it has been con- vened to try or shall inflict a punishment forbidden by the law, * Reinsch, Readings, p. 126. 346 American Government and Politics though its sentence shall be approved by the officer having a re- visory power of it, civil courts may, on an action by a party aggrieved by it, inquire into the want of the court's jurisdiction and give him redress." ^ The Navy The navy of the United States is created and supported under the power of Congress "to provide and maintain a navy." The naval arm of the government consists of the ships of war of various t)^es, the officers and enlisted men, and the docks and navy-yards necessary to the construction and maintenance of the material equipment.^ There were in the active service of the navy, November i, 1908, about 1 800 commissioned officers, 600 warrant officers, and 40,000 enHsted men, exclusive of the marine corps — a force of 267 officers and nearly 10,000 men. The term of service in the United States navy is four years. ^Inasmuch as the government is desirous of reducing the number of ahens in the navy, appli- cants for enlistment must now be American citizens, able to read and write English, and must on entering the service take the oath of allegiance. The vessels of the United States navy are distributed between the Atlantic fleet and the Pacific fleet, each under the command of a Rear Admiral. Military and Naval Administration On the side of the civil administration, the army and navy are under the control of the Department of War and the De- partment of the Navy, subject always, of course, to the Presi- dent of the United States, who in time of peace as well as war ^ Dynes v. Hoover, 20 Howard, 65. On November i, 1908, there were twenty-five battle ships, twelve armored cruisers, thirty-nine cruisers, including all unarmored cruising vessels of above 1000 tons displacement, sixteen torpedo destroyers, thirty-two torpedo boats, twelve submarines, and eleven coast defence vessels, including smaller battle ships and monitors; and there were at that time building, or author- ized, six battle ships, fifteen destroyers, and fifteen submarines. This list does not include vessels more than twenty years old (unless they have been reconstructed and reequipped since 1900), colliers, transports, repair ships, converted merchant vessels or other auxiliaries or other vessels of less than a thousand tons, except the torpedo boats. National Defence 347 s the commander-in-chief of our armed forces. The heads of ;hese departments are usually civilians without practical mili- ;ary or naval experience. The Secretary of War, appointed by the President and Senate, iirects the military estabHshments of the United States; he las charge of the fortifications, river and harbor improvements, md bridges; he supervises the administration of the PhiUppine [slands, the construction of the Panama Canal, and the govern- nent of the Canal Zone. All matters relating to national de- ence, sea-coast fortifications, the improvement in the navigable ?^aters of the United States, miUtary education at West Point, md military education of the army, are under his control. He nust subject to examination all estimates of appropriations for :he expenses of his department and the entire military estab- ishment, including the purchase of miUtary suppUes. He must ilso scrutinize all expenditures for the support, transporta- :ion, and maintenance of the army, and, in addition, all other expenditures which may be placed in his charge. A great portion of this heavy burden is directly assigned by aw to an assistant secretary of war, who has charge of many mat- ters — rivers and harbors, bridges over navigable waters, the -ecruiting service, courts martial, the mihtia, etc., and the pre- iminary questions relating to Cuba and the Philippines. To reUeve the Secretary and his assistant, a number of routine duties ire vested in a chief clerk. The vast and comphcated business of the military administra- tion in charge of the Department of War is distributed as follows: Lhe adjutant-general records, authenticates, and transmits to the troops and individuals, the orders, instructions, and regula- tions which go out from the central administration; he also has general charge of the records and statistics of the army. The inspector-general supervises the inspection of the army in all 3f its branches. The quartermaster-general has charge of trans- portation, buildings, and suppUes, except rations, the purchase md distribution of which are in the control of the commissary- general of subsistence. The surgeon-general supervises the medical department of the army. The paymaster-general is charged with the payment of the officers and men of the army md the several employees of the department. The chief of engineers is at the head of the corps of engineers which looks 348 American Government and Politics after the construction and maintenance of forts, military roads, and bridges, and river and harbor improvements. The ordnance department, which provides and distributes the implements of war, is in charge of the chief of ordnance. The means of com- munication throughout all branches of the army are under the scrutiny of the chief signal officer. The judge-advocate-general is directed by law to receive, review, and have recorded the pro- ceedings of all courts-martial, courts of inquiry, and mihtary commissions; and it is also his duty to give the Secretary of War information and advice on legal questions. The general super- vision of the administration on the Philippine Islands is vested in the chief of the bureau of insular affairs. As a connecting Unk between the civil administration and the army in the field, Congress created, by an act approved February 14, 1903, a General Staff, to be composed of officers detailed from the army at large under rules prescribed by the President. This staff includes not only general officers (major-general as chief) but also colonels, majors, and captains, thus giving the directing staff points of contact with the rank and file of the army. To keep this body in constant touch with the practical problems of war- fare, it is provided that officers detailed to the General Staff may serve in that capacity for only four years at most; and on re- turning to the army they must remain there at least two years before they can be detailed again, except in time of emer- gency. The head of the staff is the Chief -of the Staff, who acts under the direction of the President and the Secretary of War. It is the duty of the General Staff to prepare plans for national defence and for the mobihzation of the national forces in time of war; to investigate and report upon all questions relating to the efficiency of the army and its state of preparation; to render professional aid to the Secretary of War and to the general officers and their superior commanders; and perform such other mihtary duties, not otherwise assigned by law, as the President may from time to time prescribe. The office of the Chief of Staff constitutes, for administrative purposes, a supervising mili- tary bureau in the War Department. The Navy Department, created in 1798, lis in charge of the Secretary of the Navy, appointed by the President and Senate. He is authorized to perform such duties as the President may National Defence 349 assign him, and to superintend the construction, manning, armament, equipment, and employment of vessels of war. He is immediately aided by an assistant secretary, and by a chief clerk who has charge of the records and correspondence, and per- forms other routine duties. The administration of the Navy Department is distributed among the following eight bureaus, the general duties of each of which are made clear by the titles: navigation, yards and docks, equipment, ordnance, construction and repair, steam engineering, medicine and surgery, and suppUes and accounts. There is also in the Navy Department a judge-advocate-general who has, with reference to the navy, duties akin to those per- formed by the same officer in the Department of War. There is also a commandant of the marine corps, which has a vessel and officers and men on duty at each of the several shore sta- tions of the United States. The whole problem of naval adminis- tration is now under critical discussion, and extensive reorgani- zaticJn is being demanded. To assist in securing and preparing competent men for the army and navy, the United States maintains two institutions of higher learning: the Military Academy at West t'oint and the Naval Academy at AnnapoUs. The course of instruction at both institutions is principally mathematical and professional, but it embraces also a large range of additional subjects. The full quota of cadets at West Point is maintained by assigning one cadet to each United States Senator and one to each con- gressional district and territory (including the District of Colum- bia, Porto Rico, Alaska, and Hawaii), and forty to the Presi- dent of the United States, who appoints at his discretion. As vacancies occur, appointments are made, on the nomination of the Senators, Representatives, Delegates, and the Presi- dent respectively; but these nominees must pass regular ex- aminations testing their preparation for the course of instruc- tion. Midshipmen for the Naval Academy are secured by assigning two to each Senator, Representative, and Delegate in Congress, two to the District of Columbia, and five to the President. Graduates from these institutions are given special advantages in entering active service. Cadets who complete their work at West Point are commissioned as second Heutenants; and midshipmen from Annapolis, on passing their graduation 350 American Government and Politics examinations, are assigned to rank in the lower ranges of the naval service on a basis of their merits.^ Army and navy officers are appointed by the President and Senate — subject to the constitutional limitation reserving the appointment of militia officers to the states. In time of war it has been impossible to secure enough army officers from West Point and the government has been compelled to call men from civil life or from the ranks to fill high places. It has been provided by law that in time of peace army and navy officers may be remo^^ed only by court-martial; but in time of war the President may remove summarily. Provision is also made by law for retirement and promotion subject to a certain presidential discretion. The Conduct of Warfare As we have seen, the command of the army and navy of the United States is vested in the President.^ As commander-in- chief he may dispose of the armed forces on land and sea in time of war and peace; he may supervise the execution of the military law in the government of the troops; and when Congress has declared war, or the United States has been invaded, he may employ the soldiers and direct their operations, subject to the rules of that branch of international law known as the law of war. The actual conduct of war, of course, varies according to cir- cumstances, but the general principles may be illustrated by reference to the practice during the recent war with Spain. On April 20, 1898, Congress passed a joint resolution demanding that the Spanish government relinquish its authority in Cuba, and directed the President to use our military and naval forces and to call into service the militia to such an extent as might be necessary to carry the resolution into effect. On April 22, Congress enacted a law providing for the temporary increase of the mihtary force and authorizing the President to call for volunteers; on the same day Mr. McKinley, acting under the joint resolution of April 20, established a blockade over certain Cuban ports,^ the American fleet having already been ordered to Havana. The next day, April 23, the President issued his ' There is a Naval War College at Newport and an Army War College at Washington at which selected officers study special war problems. ^ Above, chap. x. ^ Readings, p. 312. National Defence 351 call for 125,000 volunteers;^ and two days later Congress passed an act declaring that a state of war had existed since April 21 between the United States and the Kingdom of Spain. ^ The organization of the army and navy for actual service began at once. The President, in consultation with the Secre- taries of War and the Navy and other mihtary experts, completed the selection of the commanding officers.^ Troops were con- centrated at southern ports, preparatory to their transportation to Cuba, and the commissary-general, acting through his agents in the great cities, began to purchase suppHes and rush them to the points where the troops were being mobilized. Of course, some of this work had been done in advance; the regular army had been concentrated in southern camps and overhauled in anticipation of the war and provision had been made in the War Department for the selection of officers. There were, however, great confusion, waste, and mismanage- ment in the preparation for the war and in equipping and trans- porting the soldiers. Indeed, the loss during the Spanish War was not on the field of battle, but in the camps, where the soldiers were poorly cared for and badly fed. Our experience on this occasion was, in fact, the chief cause of the reform which followed this war. While the troops were being organized and prepared for war. Congress was busy with revenue measures to meet the new charges. It at once appropriated $50,000,000 and empowered the President, without restriction, to use the entire amount for na- tional defence. Later on, June 13, an issue of $200,000,000 worth of three per cent bonds was authorized. The tax on tobacco and fermented liquors was greatly increased; "special taxes were laid upon banks, brokers, proprietors of theatres, bowling alleys, bilUard and pool rooms, and amusement places in general. Stamp taxes were imposed upon a great variety of commercial transactions involving the use of documents, as the issue or sale of incorporation securities; upon bank checks, bills of ex- change, drafts, etc. ; upon express and freight receipts; telephone and telegraph messages, insurance policies, and many other business operations in daily use. Duties collected through the * Readings, p. 310. ^ Ibui.y p. 310. ' Senators Hanna and Jones, as chairmen of the national committees of the two great political parties, exercised great weight in the selection of officers. 352 American Government and Politics use of stamps were laid upon patent and proprietary medicines and toilet articles, chewing gum, and wines; and an excise tax was imposed upon firms engaged in refining sugar or petroleum. A novelty in federal finance was a tax on legacies ranging from three-quarters of one per cent on direct heirs to five per cent on distant relatives and strangers, with a progressive increase in the rates as the estates increased in size, to a maximum of fifteen per cent." ^ The actual direction of war is obviously difficult to describe. The power of direction is, of course, vested in the President; but the extent to which he may use it to control not only the general but the minute movements of the army and navy depends upon many things: the character of the theatre of war, the facility of communication, the confidence of the President in his own mili- tary ability, and the regard which he has for the abilities of the officers immediately under his command. He could, of course, take the field himself if he saw fit. During the Spanish- American War, President McKinley, the Secretary of War, and the Secretary of the Navy sat together in what is known as the War Room at the White House, which was connected with the scenes of action by the most modern means of communication; and from time to time they sent out general instructions, and detailed orders to commanding officers.^ We may say, therefore, that the President and his immediate advisers in Washington sketch the general plans of campaign; supervise their execution; make changes and issue new directions from time to time, always cooperating with the officers at the front, trusting more or less to their use of discretion amid the exi- gencies of battle.^ Under the law estabHshing the General Staff, described above, the President will now have the advice of an expert body closely in touch with the army and at the same time initiated in the practical problems of civil administration connected with the actual employment of the army. The Rights of Citizens in Time of War The rights of the enemy in time of war are deduced, of course, from the principles of international law; but the rights of Ameri- * Dewey, Financial History of the United States, p. 466. 'See Readings, p. 313. ' For actual illustrations, see Readings, pp. 315 ff. National Defence 353 :an citizens must be determined according to the Constitution of the United States. During the Civil War a serious problem arose IS to the extent of the power of the President as commander-in- :hief over the persons and property of American citizens, not 3nly near the seat of war, but even at a great distance. Has the President the right to arrest citizens in loyal states on the charge 3f giving aid or comfort to the enemy of the United States? Can he suspend, without the sanction of Congress, the writ of [labeas corpus as to persons under mihtary arrest, thus preventing them from carrying their cases into the ordinary civil tribunals? !\re persons so held under mihtary arrest entitled to jury trial? rhese and many similar questions were raised, and bitter feehng svas manifested against President Lincoln, in many quarters, for what was regarded as high-handed and arbitrary action in ar- resting, by mihtary force, large numbers of men throughout the N^orth who were suspected of giving aid and encouragement to the Confederacy. To those who complained against this poUcy, President Lin- coln responded: "Thoroughly imbued with a reverence for the guaranteed rights of individuals, I was slow to adopt the strong measures which by degrees I have been forced to regard as being within the exceptions of the Constitution and as indispen- sable to the pubHc safety. Nothing is better known to history than that courts of justice are utterly incompetent to such cases. Civil courts are organized chiefly for trials of individuals, or at most a few individuals acting in concert — and this in quiet times and on charges of crimes well defined in the law. ... He who dissuades one man from volunteering, or induces one sol- dier to desert, weakens the Union cause as much as he who kills a Union soldier in battle. Yet this dissuasion or inducement may be so conducted as to be no defined crime of which any civil court would take cognizance." ^ The question as to the extent of the President's war power over American citizens was brought before the Supreme Court in the case of Ex parte Milhgan,^ and it was held that, in time of civil war when courts are actually closed by foreign invasion and it is impossible to administer criminal justice according to law, the mihtary authority has the right to rule by martial law until the ' Nicolay and Hay, Complete Works of A. Lincoln, Vol. VIII, pp. 303, 309. ' 4 Wallace, 2, 2A 354 American Government and Politics laws can have their free course again. But, continued the Court, as the necessity creates the rule, so it Umits the duration — martial rule can never be maintained where the courts are open and in the proper and undisturbed exercise of their jurisdiction, and it is confined to the locaUty of actual war. The doctrine thus announced by the Court is largely an academic one, for the President, having possession of the mihtary power, can readily close the courts in any district and thus disturb "the free course of law"; and as a matter of fact, in time of war, a practically absolute power must be vested in the commander-in-chief. The Pension System No country in the world has been more liberal in the provision of pensions for soldiers and sailors and those dependent upon them than the United States. A pension system was estabUshed as early as 1776. Following every war there is a new pension law, or rather a series of pension laws, making provision for those who have served their country; and payments for previous services are constantly being made more liberal. In 1905, the roll of pensioners reached 1,004,196, the largest in the history of our country; and on June 30, 1908, the number stood at 951,867. By the act of March 4, 1907, Congress appropriated $145,000,000 for pensions, and this was supplemented about a year later by a deficiency appropriation of $10,000,000 more. The total amount actually disbursed in pensions for the fiscal year ending June 30, 1908, was over $153,000,000. It is not only the soldiers who have seen actual service that are pensioned. Many widows, children under the age of sixteen years, and helpless minors are provided for, and state and na- tional homes are established for the disabled and indigent. It was not until November 11, 1906, that the last surviving widow pensioner of the Revolutionary War died and two daughters of soldiers in that war were still on the roll in 1908. The last pen- sioned soldier of the War of 181 2 died in 1905, but the roll of that war still contains over 400 widows. On June 30, 1908, there were 620,985 survivors of the Civil War on the pension roll. The administration of the pensions is in charge of a commis- sioner in the Department of the Interior. National Defence 355 The Cost of War * There is a strong tradition in the United States that we are pre- eminently a peaceful people giving little attention to warlike preparations; and we generally point with pity to the nations of Europe staggering under their enormous military burdens. It is interesting to note, however, that on comparing the total receipts of Great Britain, Germany, France, and the United States with their total expenditures for the maintenance of military establishments there is relatively little difference.^ During the fiscal year 1908, the United States spent for army, navy, and fortifications no less than $204,122,855.57, or 36.5 per cent of the total revenue, exclusive of postal receipts (because the revenues and expenditures in that department constitute a balanced account). During the same year also we spent $180,678,204, or about 31 per cent of our total revenue for pensions, interest,^ and other charges incurred by past wars. Taking the daily statement issued by the Treas- ury Department on April 30, 1909, we find an expenditure of 41 per cent of all the revenues of the fiscal year up to that day for the army, navy, and fortifications — that is, in preparation for war — and 31 per cent of all the revenue on account of past wars, making a total expenditure of 72 per cent of all the federal reve- nues thus collected, either on account of past wars or in prepara- tion for war. " The fact," exclaims Mr. Tawney, chairman of the committee of ap- propriations in the House, " that we are expending, during this fiscal year, 72 per cent of our aggregate revenue in preparing for war and on account of past wars, leaving only 28 per cent of our revenue avail- able to meet all other governmental expenditures, including internal improvements, the erection of public buildings, the improvement of rivers and harbors, and the conservation of our natural resources, is to my mind appalling. It should arrest the attention of the American people and not only cause them to demand a decrease in these unneces- sary war expenditures, but also prompt them to aid in every way pos- sible in the creation of a public sentiment that would favor the organi- zation of an international federation whose decisions and action in the ' For the American theory of national defence, Readings, p. 320. For the modem peace movement, above, p. 339. ^ Congressional Record, Vol. XL, part 8, p. 7928; Reinsch, Readings, p. 313. ^ On the war debt. 35^ American Government and Politics peaceful settlement of controversies between nations would be recog- nized and accepted as the final determination thereof. If this were done it would not necessarily mean the entire abandonment of armies and navies, but it would so far remove the possibiUty of international wars as to make unnecessary the expenditure of the stupendous sums which are now being collected from the people in the form of taxes and expended for the purpose of maintaining armed peace. The money expended for this purpose is not the only measure of the cost of armed peace. Think for a moment of what the American people have lost during the past eight years, in consequence of the increased expendi- ture of more than a biUion dollars during that time for the purpose of preparing for war in order that war may be prevented." It is important to note that we are not only spending three- fourths of our total revenue in the payment for past wars and for warlike preparations, but also that there is a strong tendency to increase the relative amount voted for military purposes. Under the second adminstration of President Roosevelt, the per capita appropriation for the army was $3.66, — more than two and a half times the amount appropriated under Mr. Cleveland's ad- ministration. Under Mr. Roosevelt, the naval appropriations, measured in relation to the population, were three times as great as under Mr. Cleveland; and at the same time there was an increase of fifty per cent in the expenditure for fortifications. This increase in appropriations for military purposes has been especially rapid since the Spanish War. The average annual army appropriations for the eight years just preceding the Spanish War amounted to $24,000,000; for each of the eight years ending in the fiscal year of 19 10, the average amount totals the enormous sum of $83,000,000. During this same period the annual average appropriations for the navy have risen fr5m $27,500,000 to more than $102,400,000. In defence of this rapid increase in expenditures for warlike preparations, it is urged that special precautions must be taken to defend our new insular possessions and to protect our world-wide commerce. It is also contended that as long as the great nations of Europe, with whom we are now in open commercial competition in the world's markets, steadily increase their military and naval expenditures we cannot allow our army and navy to fall behind. In his message of December 3, 1907, President Roosevelt declared that inasmuch as the Hague conference had failed to take up the National Defence 357 question of limiting armaments, and inasmuch as it was hopeless to try to devise any plan which might have secured the assent of the nations gathered at the Hague, "it was folly for this nation to base any hope of securing peace on any international agreement as to the Hmitation of armaments. Such being the fact it would be most unwise for us to stop the upbuilding of our navy. To build one battleship of the best and most advanced type a year would barely keep our fleet up to its present force. This is not enough. In my judgment we should this year provide for four battleships." In response to this appeal Congress voted the construction of two battle ships. Those who urge larger mihtary preparations also contend that the neglect of our army was responsible for the serious loss incurred by inefficient administration and inadequate services during the Spanish War. In the message quoted above President Roosevelt devoted special attention to this question, pointing out that in every foreign war which we have waged an enormous cost in men and money could have been avoided, if in time of peace we had taken wise precautions to maintain the regular army at a high standard of efficiency. CHAPTER XVIII TAXATION AND FINANCE The Power of Congress to Tax ^ Under the Constitution Congress has a general power to lay and collect taxes, duties, imposts, and excises. Subject to certain rules which we shall consider later, there is no limit on the amount of taxes Congress may lay. The Chief Justice of the Supreme Court, in speaking of a tax which was so excessive as to impair the value of the franchises of state banks, said that it was not within the prov- ince of the judiciary to prescribe to the legislative department of the government limitations upon the exercise of its acknowledged powers.^ If the power to tax is exercised oppressively, he declared, the remedy for the wrong rests with the people who choose the legislature. 1. Some of the restrictions on the exercise of this taxing power are expressly laid down in the Constitution. It is provided in that instrument that all duties, imposts, and excises shall be uni- form throughout the United States; and under an interpretation of the Supreme Court, a uniform tax is one which falls with the same weight upon the same object wherever found within the United States. For example. Congress once laid a duty of fifty cents on every passenger coming from foreign countries into the United States, and this tax was held to be uniform, although it was levied principally at a few ports. Again, an inheritance tax is uniform ^ when it is imposed equally upon all inheritances of the same amount and character, though it may so happen that the taxable inheritances may occur in only a few states of the Union during the existence of the law. 2. The second express Hmitation on the taxing power of Con- gress is that direct taxes shall be apportioned among the several states according to their respective numbers."* * For the social implications of this power, see Readings, pp. 283 and 331. ^ Veazie Bank v. Fenno, 8 Wallace, 533. ^Readings, p. 323. * For an example, Readings, p. 327. 358 Taxation and Finance 359 3. The Constitution also provides that Congress shall not lay a duty or tax on articles exported from any state, and that, in the regulation of commerce and revenue, no preference shall be given to the ports of one state over those of another. To prevent dis- crimination between states, it is further stipulated that vessels bound to or from one state shall not be obhged to enter, clear, or pay duties in the ports of another. 4. In addition to the express Umitations ^ laid down in the Con- stitution, there is an important imphed restriction on the taxing power. Congress cannot tax the instrumentalities or the property of any state^" This doctrine has been applied in a number of cases. For example, during the Civil War, Congress levied a tax on the gains, profits, and income of every person residing in the United States ; a judge in Massachusetts refused to pay the tax upon his income which was derived from the commonwealth, and the Supreme Court of the United States upheld him in his refusal, declaring that the federal government was thus taxing an instru- mentaHty of a state. Broadly speaking, there are two forms of taxes in the United States, direct and indirect; and it is always necessary to decide into which of these two categories any tax about to be laid by Congress falls, and, therefore, whether the rule of apportionment according to population or the rule of uniformity shall apply. I. During the early years of the federal government it was generally understood that there were two kinds of direct taxes — a capitation or poll-tax and a tax on land.^ It is now held by the Supreme Court, however, that taxes upon income from real and personal property are Hkewise direct, and therefore constitu- * The taxing power of the federal government must be exercised according to due process of law. See above, p. 151. ^ See McCuUoch v. Maryland, 4 Wheaton, 316. 3 In practice the federal government has imposed, as avowedly direct, taxes on real estate and slaves. For example, in 1 798, a direct tax was im- posed on real estate, and a capitation tax was laid on slaves; and in a few other instances this precedent was followed. In 1861, under the necessity of raising funds to carry on the Civil War, the federal government voted a tax of twenty million dollars to fall on lands and improvements, and divided this amount among the states m proportion to their respective populations as shown by the census. Some of the states assumed the entire quota allotted to them, and after the war the amounts collected were refunded to the states. For this law, see Readings, p. 327. 360 American Government and Politics tional only when apportioned among the states according to their populations. Since the incomes of private persons within the respective commonwealths have no necessary relation to the num- ber of inhabitants, it would be obviously unjust to apply the rule of apportionment.^ On account of the difficulties of as- sessing direct taxes and apportioning them among the states, and the resulting injustice, the constitutional limitation is al- most a prohibition. II. Indirect taxes, which are subject only to the rule of uni- formity, may be taken to include excise taxes upon commodities, such as whiskey and tobacco; customs duties imposed upon goods coming into the United States from other countries; taxes upon inheritances; ^ license taxes on occupations; duties on the sale of commodities, such, for example, as the stamp tax laid on proprie- tary articles during the Spanish War; ^ stamp taxes such as those on checks, mortgages, and other papers; and, apparently, taxes on incomes not derived from real or personal property. Revenues and Revenue Bills Except in time of war or shortage of revenue it has been the general practice of the federal government to rely upon indirect taxation as its prime source of revenue^ It was the intention of the Fathers that indirect taxes should be the chief resort of the central government. In common with all statesmen they recog- nized the natural dishke of the people for any form of tax which must be paid directly out of their own pockets in lump sums to the government. Not only is a direct tax difficult to collect on * During the Civil War a federal tax was laid upon income, gains, and profits by the year, and in Springer v. United States (102 U. S. R., 586) the Su- preme Court held that this was an indirect tax, and therefore did not have to be apportioned according to population. The Court said in this case: "Our conclusions are that direct taxes within the meaning of the Constitution are only capitation taxes as expressed in that instrument and taxes on real estate; and that the tax, of which the plaintiff in error complains, is within the category of an excise or duty." Upon reexamination of the question in connection with the income-tax law of 1894, the Court maintained that a tax upon incomes from land is as much a direct tax as if levied upon the land itself at so much an acre, or according to its valuation. Readings, p. 328. In 1909, Congress passed and referred to the state legislatures an amendment to the federal Constitution authorizing Congress to impose an income-tax without apportionment. See above, p. 71. ' Readings, p. 323. 3 gee above, p. 352. Taxation and Finance 361 account of this natural opposition to it; it is expensive to ad- minister owing to the necessity of repeated valuations of the property on which it falls and to the numerous operations required in laying and collecting it. An indirect tax, on the other hand, has the advantage of great simplicity. It falls in small amounts upon each article of con- sumption, and it is easy to lay because it is imposed upon the same articles wherever they are found. Accordingly, the United States now derives its revenues from two prime sources,* customs duties laid upon imports coming from foreign countries, and internal revenue or excise taxes laid on spirits and tobacco. Of the total gross receipts of the United States in 1907, amounting to $663,000,000 in round numbers, $332,000,000 was derived from customs and $269,000,000 from internal revenue, the remainder coming from the sale of pubUc lands and miscellaneous sources.^ The Constitution definitely provides that all bills for raising revenue shall originate in the House of Representatives, but au- thorizes the Senate to propose or concur in amendments as in the case of other bills. It was the purpose of the framers of the Con- stitution to vest the power of imposing taxes in the hands of that branch of the national legislature which was nearer the people on whom the burden must fall. * ' The House of Representatives, ' ' says The Federalist, "holds the purse, — that powerful instru- ment by which we behold in the history of the British Constitu- tion an infant and humble representation of the people gradually enlarging the sphere of its activity and importance and finally reducing as far as it seems to have wished all the overgrown prerogatives of the other branches of the government. This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any Constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance and for carrying into effect every just and salu- tary measure." ^ In spite of this confident prediction, however, the influence of ' A departure was made in 1909 when a tax of one per cent was imposed upon the net income, over and above $5000, of corporations, joint stock companies, and associations. See the discussion of this law by Professor Goodnow, in The Columbia Law Review, December, 1909. =*See table below, p. 372. 'No. LVIII. 362 American Government and Politics the Senate in shaping revenue legislation has been steadily on the increase, until it now frankly assumes, under its power to make amendments, what is for practical purposes the right of initiating revenue measures. For example, in 187 1, the House passed an act repeaUng the existing duties on tea and coffee — a brief measure only a few Hues long; and the Senate substituted for this proposal of a slight change, "an act to decrease existing taxes, " designed to bring about a general revision of the laws imposing duties and internal taxes — in all a measure of some twenty printed pages. The House protested against this action on the part of the Senate, declaring it to be in conflict with the true intention and purpose of the clause of the Constitution which requires revenue bills to originate in the lower branch of the legislature. During the debate on the subject in the House, Mr. Garfield said: "It is clear to my mind that the Senate's power to amend is limited to the subject-matter of the bill. That limit is natural, is definite, and can be clearly shown. If there had been no precedent in the case, I should say that a House bill relating solely to revenue on salt could not be amended by adding to it clauses raising revenue on textile fabrics, but that all the amendments of the Senate should relate to the duty on salt. To admit that the Senate can take a House bill consisting of two lines, relating specifically and solely to a single article, and can graft upon that bill in the name of an amendment a whole system of tariff and internal taxation, is to say that they may exploit all the meaning out of the clause of the Constitution which we are considering, and may rob the House of the last vestige of its rights under that clause." In spite of the protest on the part of the House, the Senate was able to force the adoption of a consider- able portion of its plan of revision. Again in 1894, the Wilson tariff bill as it came from the House of Representatives was sadly mutilated in the Senate. In fact, "its revenue reform principles were hardly recognizable"; but in the conference committee the House of Representatives was forced to yield on almost all the points. Again, in 1909, when the Payne tariff bill came from the House of Representatives, it was referred to the finance committee of the Senate, of which Mr. Aldrich was chairman, and when reported back from that com- mittee it was in many important respects a new bill.^ As it ' In fact the Senate Committee had virtually prepared its own bill before the House bill was referred to it. Taxation and Finance 363 finally passed the Senate it contained a number of radical depar- tures from the provisions of the House bill and in spite of the inter- vention of President Taft many of them were adopted during the sessions of the conference committee. It is generally beheved that Mr. Aldrich exerted a far greater influence in the drafting of this revenue measure than did Mr. Payne, chairman of the ways and means committee in the House of Representatives. The actual work of preparing revenue bills in the House is assigned to the committee on ways and means. Tariff measures are drawn up by the members of the committee representing the party which has a majority in the House. When it becomes apparent that the temper of the country is demanding a re- vision of the tariff, the House of Representatives generally authorizes the committee to gather information preparatory to the adoption of the new schedules. For example, in the spring of 1908, the committee on ways and means was author- ized, on the motion of its chairman, Mr. Payne, to sit during the recess of Congress and hold hearings to collect information upon which to base a revision of the tariff; and at the same time the Senate adopted a resolution authorizing its finance com- mittee to secure expert assistance in making tariff investiga- tions both before and after the introduction of the tariff bill in the House of Representatives. It is a common practice for the committee to hold many sessions which are attended by the representatives of the various industries of the nation as well as by consumers and other persons interested in the tariff, who advance their respective claims for protection or for reduction.' When the majority members of the committee have taken all the evidence that they desire and thoroughly considered the issues involved, they draw up a complete bill which is sometimes discussed in the full committee. Inasmuch as a tariff bill is always a poUtical measure, the minority members on the committee are generally not consulted at all, and may in fact know nothing about the exact provisions of the bill until it is reported to the House. The minority, of course, may present ' See Readings, p. 333, for the interesting extract from Mr. Dingley's Memoirs, describing the preparations of the Dingley bill. The hearings are always one-sided. It is the " interests " who prosecute their case with great zeal. Few consumers have the personal interest or knowledge to make their appearance before the committee efifcctive. 364 American Government and Politics a report of their own by way of protest, but it seldom amounts to anything. When a revenue bill is reported to the House by the chairman of the committee on ways and means, it is debated in the com- mittee of the whole on the state of the Union. The discussion at • first is quite general, so that practically every member who has anything to say about the proposed measure is given an opportun- ity. The general debate is then followed by a debate on details under the five-minute rule. From time to time as the discussion proceeds, the committee on ways and means will report changes, the chairman of that committee as an astute party leader being quick to perceive the points on which it is expedient and necessary to yield. The bill as modified under the pressure of debate is generally passed by the House under ''the previous question." When the measure reaches the Senate, it is promptly referred to the committee on finance which has, as a matter of fact, been busy on its own bill and has watched with close scrutiny the progress of the discussion in the House. After making amend- ments or substituting practically a new bill, the committee makes its report to the Senate. The debate in that body, as we have seen, is unlimited; and the tariff measure usually receives far more penetrating criticism there than in the House, After its passage, the bill purporting to be the original measure with Senate amendments is returned to the House, which promptly votes not to concur in the Senate amendments and asks for a conference. The Speaker, thereupon, appoints the chairman of the committee on ways and means and some other members to represent the House, and the presiding officer of the Senate selects the chairman of the committee on finance and certain other members to represent that body. The conference committee immediately begins a series of sessions which always end in a compromise, the Senate receding from some of its amendments and the House yielding on others. Sometimes the conference committee takes into its confidence the President, whose views as party leader with regard to the tariff cannot be neglected. As is well known. President Taft exerted a considerable influence in the conference committee discussions in 1909 which led to an adjustment of the differences between the two houses. ' Through- out these various operations on the bill, it must be remembered, many provisions are framed with a certain knowledge that a Taxation and Finance . 365 )mpromise will ultimately result. A compromise, therefore, frequently no compromise. When the conference committee IS come to an agreement, its report is immediately submitted ) the House, where it is passed without amendment and then int to the Senate, where it is likewise speedily accepted. There- 3on the bill goes to the President for his signature. This method of drafting revenue measures is attended by some ;rious drawbacks. In the first place, no man or group of men in assume full responsibiUty for it. The President, who may ive been elected on a platform favoring the reduction of the iriff, can do nothing more than exert such influence as his posi- on and party leadership may give him. His veto of a tariff bill ould be an extremely drastic measure of control, resulting in reat confusion to the business interests awaiting a settlement. 1 the House, the chairman of the committee on ways and means light be held at least partially responsible, were it not for the LCt that the Senate has such an unlimited amending power. In actual practice the most important points of contention are jttled in the conference committee, so it may be said that the final ord on tariff pohcy and revenue measures is said by a committee nknown to the Constitution. This is especially true because oth houses are in practice constrained to accept the measure as jported from this committee, fearing to reopen a long and tedious 3bate and thus delay the conclusion of the matter indefinitely, he complete bill is, therefore, not a measure which has received L every point careful consideration by a responsible legislature; is a series of compromises rushed through in its final form' ithout dehberation. The great defects of this system are two: Dsence of precise responsibiUty land a tendency to cause the pro- ingation of an outworn tariff poHcy on account of serious 3stacles in the way of a speedy and effective revision. Appropriation Bills The preparation of appropriation bills, jjnlike the preparation [ revenue bills, is not concentrated in the hands of any single )mmittee in the House of Representatives, but is intrusted to number of committees. In the beginning of our history, ^hen expenditures were relatively small, they were practically all repared by the committee on ways and means, thus affording 366 American Government and Politics some coordination between the taxing and spending branches of the government; but in 1865, in view of the extraordinary ex- penses incurred by the war, a standing committee on appropria- tions was created. On the ground that no single group of men can give a speedy and careful scrutiny to the whole range of ap- propriation measures, one class of appropriations after another has been taken away from this committee and intrusted to other committees until, as a result, the work of preparing appropriations in the House of Representatives is broken up so that there are now no less than fourteen general appropriation bills prepared by seven different committees/ The committee on appropriations has charge of the legislative, executive, and judicial bill, the sundry civil. District of Columbia, fortifications, pension, urgency deficiency, and general deficiency bills. The agricultural bill is reported by the committee on agriculture; the army bill and mihtary academy bill, by the com- mittee on mihtary affairs; the naval bill, by the committee on naval affairs; the diplomatic and consular bill, by the committee on foreign affairs; the post-office bill, by the committee on the post-offices and post-roads; the Indian bill, by the committee on Indian affairs. Each of these appropriation bills must be pre- pared and passed annually, for a general appropriation bill, ex- cept in the matter of deficiency, merely provides for the coming fiscal year, dating from July first. There are, in addition, large " permanent " appropriations for fortifications, river and harbor improvements, etc., which are paid out imder a general law as long as authorized. The basis for appropriations is afforded by the Book of Estimates transmitted to the House of Representatives by the Secretary of the Treasury. This bulky volume of figures embraces the esti- mates compiled by the several departments which are supposed to indicate their respective needs. These estimates are placed in the hands of the several committees having charge of appro- priations, but up to the present time they have been regarded as Httle more than useful suggestions. In the preparation of their bills the committee on appropria- tions and the other committees in charge of appropriations are really compelled to work more or less bhndly. Sometimes they hold extensive hearings endeavoring to get a complete grasp of ^ For the character of an appropriation bill, see Readings, p. 341. Taxation and Finance 367 the multitudinous detailed expenditures for which they must provide.^ But, of course, it is impossible for the several com- mittees, in the time at their disposal, to give even minor matters the amount of attention demanded by sound pubUc economy. "The machinery provided by Congress," said Mr. Littauer ^ in 1906, "for the examination of accounts and expenditures, of economy, justness, correctness of expenditures, of conformity with appropriation law, of retrenchment, abolishment of useless offices, of the reduction and increase of pay of officers is evidently not in working order; at any rate some gear is out of place which needs looking after by the engineers in charge. Without some aid from those who have made examinations of the actual conduct of expenditures in the bureaus, your committee on appropria- tions probes away, in ascertaining these facts, largely in the datk. We follow up leads which come to us through rumors or through our own experience and casual observation. Our efforts in forming such an appropriation bill as this toward getting at nec- essary facts can amount to nothing but a scratch on the surface, astounding though such revelations scratched up actually are." Recognizing the uncertain character of the estimates for ap- propriations Congress, by a law passed in 1909, has attempted to throw upon the President the burden of suggesting ways and means for balancing accounts which will compel him to look more sharply into the cost of national administration.^ Indeed the first signs of this result were manifested in Mr. Taft's message of December 7, 1909. He called the attention of Congress to the fact that the estimates submitted had been cut to the quick and that, in order to bring down expenditures, he had instituted a searching investigation into pubUc business methods with a view to a reorganization of the service in the interests of economy and efficiency. Not only do the respective committees on appropriations have great difficulty in securing proper estimates for public expendi- tures; they are under constant pressure from every hand to in- crease the amounts which they recommend to the House for adoption. Every government interest is represented in this pressure for larger appropriations. A new bureau is created and it inevitably wishes to widen the range of its work and to increase ' Readings, p. 338, for an interesting example of methods. ^ Reinsch, Readings, p. 353. ^ See below, p. 369. 368 American Government and Politics the salaries of its employees. Army and naval officers, loyal to their branch of the service, are always demanding larger and larger appropriations. Then there is the interminable Hst of appropriations forced upon Congress through log-rolhng — ap- propriations for post-offices, river and harbor improvements, naval stations, docks, and other pubUc works which redound to the advantage of specific localities.^ More than once members have protested against this system. " This practice," exclaimed Mr. Cannon in the House in 1902, " of going from committee to committee that, under the rules of the House, has jurisdiction, and then before the matter has been investigated, by the aid of a willing Senate, failing in one place, rushing to another that has not jurisdiction, and stick- ing in amendments here, there, and yonder ought to be done away with. Appropriation for the next year, appropriation for this year, legislation here, legislation there. If action is con- tinued along these lines it will demoralize the matter of appro- priation and bring scandal and criticism — deserved criticism — from the people of the country." ^ Nevertheless, the system continues, and the interests that are constantly seeking large appropriations, fight against every attempt at reform. As a result, the committees are subject to a thousand demands for increased expenditures to every one that comes on behalf of economy. Moreover, each committee, jealous of its own prerog- atives, is anxious to carry its own bills through the House. Consequently the Treasury of the United States is under constant and relentless attack; its defenders are few in number and the implements of defence are wholly inadequate to the task. When an interest seeking a new or increased appropriation fails in one committee of the House it goes to another; failing in the House, it repeats the same process in the Senate; and, under the system of divided responsibility which exists, it is generally successful. "There is no selfish interest on the side of economy," declared Mr. Gillett in the House, in 1905, "while every member has pres- sure from home for increased expenditure, and naturally the gov- ernment suffers. Experience on the appropriations committee, when one sees how defenceless the Treasury is against the constant assaults upon it, is bound to make a man an economist unless he reaches that hopeless stage where he concludes that resistance is ' See above, p. 269. ^ Reinsch, Readings, p. 203. Taxation and Finance 369 vain, and that he might as well join the scramble, take what he can, and wait for the deluge." ^ The English House of Commons solved this problem, early in the eighteenth century, by standing orders providing that the House would not consider any motion involving a charge upon the public revenue unless recommended by the crown — which means to-day, unless recommended by the Cabinet of responsible ministers representing the majority and definitely responsible to the country and to a party for its poUcies and achievements. This system has been adopted by the self-governing colonies of the British empire.^ A sHght step in the direction of concentrated financial respon- sibility in the federal government was made in 1909 by the act of Congress, mentioned above, which seems to have attracted slight public interest, but which may prove a turning-point in the history of federal finances. Under this act the Secretary of the Treasury is required to collect from all the executive departments their * Reinsch, Readings, p. 357. The tendency to increase is illustrated by this official statement of appropriations, fiscal years 1907, 1908, and 1909. Fiscal Year 1907 Fiscal Year 1908 Fiscal Year 1909 Agriculture $9,930,440.00 71,817,165.08 3,091,09417 10,138,672.16 5,053,99300 9,260,599.98 29,681,919.30 1,664,707.67 102,091,670.27 140,245,500.00 191,695,998.75 98,538,770.32 $9,447,290.00 78,634,582.75 3,092,33372 10,440,598.63 6,898,011.00 10,125,076.15 32,126,333.80 1,929,703.42 98,958,507.50 146,143,000.00 212,091,193.00 37,108,083.00 110,769,211.30 $11,672 106 00 Army 95,382,247.61 3,577,463-91 10,117,668.85 9,317,145-00 9,253,347 87 Diplomatic and consular District of Columbia Fortification Indian Legislative, etc 32,833,821 00 Military Academy ........ Navy Pension Post-Office 845,634-87 122,662,485.47 163,053,000.00 22 2.062.'t02.OO River and harbor Sundry civil 112. 0^7. '^1^.22 Total 673,210,530.70 39,129,035-45 757,763,924.27 12,408,998.91 704,614,625.80 Deficiency, 1908 and prior years . . . 56,995,973.65 Total 712,339,566.15 27,173,29901 770,172,923.18 738,900.62 851,610,599-45 3,000,000.00 Miscellaneous Total, regular annual appropriations . Permanent annual appropriations . . Grand total, regular and permanent an- nual appropriations 739,512,865.16 140,076,320.00 770,911,823.80 149,886,320.00 854,610,599.45 154,194,295.12 879,589,185.16 920,798,143.80 1,008,804,894.57 ' Lowell, Government of England, Vol. I, pp. 279 flF. 370 American Government and Politics estimates of the expenditures necessary for the ensuing fiscal year and then to estimate the probable revenues of the government for the same period. The act provides that it shall then be the duty of the President of the United States, in case a probable deficit is shown by the Treasurer's estimates, to recommend the methods by which the deficit may be met. Obviously the rush on the Treasury must be checked, and as Congress is apparently unable to meet the problem, it seems to be caUing in executive help, which also imphes executive responsi- biHty in a large measure. Congress is, therefore, not unaware of the chaotic condition of national finances, and within the last few months the whole prob- lem has been somewhat thoroughly discussed in both houses. Mr. Tawney, of the appropriations committee, has declared that $50,000,000 a year is being wasted by present methods, and Mr. Aldrich, of the finance committee in the Senate, puts the amount at $300,000,000 a year. During the special session of 1909, the Senate created a public expenditures committee with more im- portant and extensive duties than any such committee has en- joyed since the beginning of our history. This committee, in February, 1910, reported to the Senate a bill creating a Business Methods Commission to consist of three Senators, three Repre- sentatives, and three members appointed by the President, and authorized to go into the whole matter of national finance with searching scrutiny and prepare plans for putting our budget- making on a sound basis. The actual work of preparing an appropriation bill is under- taken by the committee having that specific matter in charge. The general committee on appropriations is divided into several sub-committees, each one of which prepares one or more measures. Usually, the sub-committees hold hearings, at which the heads of the various departments and chiefs of bureaus may explain their needs. The measures prepared by these sub-committees are then brought together in one group and considered by the whole committee. The chairman of the committee on appropriations, in order to have at least some supervision over the other com- mittees in charge of appropriations, appoints a few members of his group to watch all of the appropriation measures, but this control is only slight — it does not in any way work an effective coordi- nation of the spending groups in the House of Representatives. Taxation and Finance 37^ When an appropriation bill is reported by a committee, it is placed on the union calendar. On the proper occasion the bill is called up by the member having it in charge, and the House, in going into the committee of the whole for its consideration, agrees that a certain time shall be allowed for debate. This time is equally divided between the two parties in the House, and it is devoted to a general discussion, during which speeches are usually made on almost any subject. After the general discussion, there Js a debate under the five-minute rule; the bill is considered sec- tion by section, and any member is allowed to introduce an amend- ment and speak on it five minutes. When these general and detailed discussions are finished, the committee of the whole rises and reports the bil^ to the House, with the amendments made in the committee; and it is then passed in the House as a rule under the previous question; that is, without debate. Appropriation bills, when passed by the House, are trans- mitted to the Senate, and with some exceptions are referred to the committee on appropriations in that body. Bureau chiefs ^ and other persons, who were unsuccessful in obtaining increased or new appropriations in the House, immediately begin to besiege the Senate committees. Appropriation bills are debated in the Senate with more freedom than obtains in the House, and this freedom enables any Senator who desires some particular appro- priation for his state to threaten to " talk the bill to death '' unless his terms are conceded. It is, accordingly, a general practice for the Senate to increase very materially the appropriations adopted by the House. For example, it added to the House bills for the year 1907-08 sums amounting to more than $70,000,000. As in the case of tariff bills, differences between the Senate and the House are adjusted by a conference committee representing the two bodies. The result is always a compromise which is accepted, as a rule, without reopening the discussion. We find here the same lack of responsibiUty and coordination which occurs in the case of revenue measures, and a total failure of any- thing Hke a proper adjustment of revenues and expenditures. In Great Britain, the budget, embracing the estimated expen- ditures and the revenue measures to meet them, is prepared under ^ This is forbidden by recent executive order (except with the consent of the head of the department) ; but it remains to be seen how efifective this order will be. Above, p. 213. Zl^ American Government and Politics the direction of a responsible minister, the Chancellor of the Exchequer, and when it is adopted it is a finished project which has received the final scrutiny of both houses. Of course, the minister may be wrong as to the estimates or the revenues which may accrue from his proposed measures; but at all events there is an actual attempt to balance the outgo and the income.^ In the United States, however, several groups of men have charge of spending money, while the chief revenue measure, the tariff act, is designed by other groups for the protection of industries rather than for meeting the expenses of the government. Furthermore, there is in the United States no adequate provi- sion for the scrutiny of the actual expenditure of the money when it is appropriated by the legislative branch of the government. It is true, each house has committees on expenditures for the executive departments, whose duty it is to see that the money is used for the objects for which it was actually appropriated; but these committees do little or no real work. This absence of ade- quate scrutiny formerly encouraged the several departments to spend their respective appropriations in a reckless manner with- ^ If the government were run as a thoroughgoing business concern, the revenues and expenditures ought to balance each other, at least with some degree of accuracy, but in fact there is usually a large surplus or deficit, as is indicated by this table: RECEIPTS AND EXPENDITURES U. S. GOVERNMENT Revenue by Fiscal Years Years Ending June 30 Customs Internal Revenue Miscella- neous Items Total Revenue Excess of Revenue over Ordi- nary Ex- penditures 1890 1900 1901 1902 1903 1904 1905 1906 1907 ...... 1908 1909 $229,668,585 233,164,871 238,585,456 254,444,708 284,479,582 261,274,565 261,798,557 300,251,888 332,233,363 286,113,130 300,977,438 $142,606,706 295,327,927 307,180,664 271,800,122 230,810,124 232,904,119 234,095,741 251,711,127 246,109,554 $24,447,420 35,911,171 38,954,098 36,153,403 45,106,968 46,453,065 48,380,087 45,052,031 61,240,199 63,301,862 56,130,685 $403,080,983 567,240,852 587,685,338 562,478,233 560,396,674 540,631,749 544,274-685 594,454,122 663,140,334 601,126,119 663,217,677 $ 85,040,272 79,527,060 77,717,984 91,287,375 54,297,667 Mi,770,573 =■ 23,004,229 25,669,323 84,236,58s » 58,070,201 '90,225,325 ^ These are deficits. The post-office receipts are excluded from the reve- nues listed above because the post-office account is a balanced account, the government meeting the deficiencies. Taxation and Finance Z7Z out apportioning them over the whole fiscal year, and then to rely upon the passage of a deficiency bill by Congress to make up for the shortage of money. A law has been recently passed, however, compeUing the head of each department to distribute his expenditures over the fiscal year unless in case of an emergency he is compelled to waive the rule/ The Collection of Revenues^ The collection of the revenue is intrusted to two branches of the Treasury Department — one having charge of the customs duties and the other the internal revenue. For the collection of import duties the country is divided into customs districts, each having a port of entry and a set of officials, including the collector, ap- praisers, special agents, inspectors, etc. The internal revenue and the revenue from the new corporation tax are under direct charge of the commissioner of internal revenue, appointed by the Presi- dent and Senate. For purposes of administration the country is divided into a large number of districts, each of which is in charge of a collector appointed by the President and the Senate. The collector has under him a corps of officers and agents, some en- gaged in the routine work and others acting as detectives to prevent frauds. The revenues of the United States in taxes, fees, postal charges, etc., are stored in Washington and in nine subtreasuries lo- cated at Baltimore, Boston, Chicago, Cincinnati, New Orleans, New York, Philadelphia, St. Louis, and San Francisco. The Secretary of the Treasury is, furthermore, authorized to put por- tions of the pubhc funds into certain national banks (designated as depositories), on the basis of United States bonds or other satis- factory security. This power in the hands of the Secretary of the Treasury, is an enormous one, for it allows him to give or withhold the aid of The total national debt of the United States: i860 1870 July I 1880 July I i8go Dec. i igoo Nov. I 1901 Nov. I 1902 Nov. I $ 64,842,287.88 2,480,672,427.81 2,128,791.054.63 1,549,206,126.48 2,132.37.^-031.17 2,151,585,743-89 2,175,246,168.89 1903 Nov. I 1904 Nov. I 1905 Nov. I 1906 Dec. I 1907 Nov. I 1908 Nov. I 1909 Nov. I 2,218,883,772.89 2,304,697,418.64 2,293,846,382.34 2,429,370,043.54 2,492,231,518.54 2,637,973.747-04 2,661,426,301.04 Reference: Dewey, Financial History, pp. 488 ff. 374 American Government and Politics the government in time of stringency. It was the regular policy of Secretary Shaw to come to the aid of the money market whenever a crisis was threatened, by distributing government funds among the banks whose surplus reserves had run low. In February of 1906, $10,000,000 was transferred to national bank depositories of seven principal cities. This action faiHng to bring rehef, the Secretary offered to make additional deposits, on the basis of satisfactory security, equivalent to the amount of gold which the specified banks had engaged for importation, and- as a result brought about $50,000,000 of foreign gold into the United States. Thus a large amount of government money was placed in circu- lation through the banks, foreign gold was secured, and the money stringency relaxed. In the panic of 1907, Secretary Cortelyou likewise came to the aid of the money market with federal funds. The advantage of this poUcy not only to the banks but to the borrowers of money is evident even to the superficial observer; but the intimate connection which it establishes between the government and private interests is obviously full of grave dangers. The Monetary System Under the Constitution, Congress has power to coin money and regulate its value and also to borrow money. It will be noted that Congress is not expressly authorized to issue paper money in any form. The Articles of Confederation gave the confederate congress the power to borrow money and emit bills on the credit of the United States; and in a draft of a constitution submitted to the convention of 1787 by Mr. Pinckney, it was proposed to continue this provision. However, on the motion of Gouverneur Morris, the phrase "emit bills on the credit of the United States" was struck out, after a considerable debate, in which the opinion was expressed that it would have a most salu- tary influence on the credit of the United States to remove even the possibiHty of paper money. Nevertheless, it is not absolutely certain that it was the intention of the f ramers of the Constitution to prevent the issue of paper money in any form, for Mr. Madison beheved that the omission of the phrase relative to bills of credit did not deprive the government of the use of public notes "so far as they could be safe and proper." At all events, Congress, under the special financial stress of the • Taxation and Finance 37 r Civil War, did authorize the issue of paper and declared it to be lawful money and legal tender for the payment of all debts, public and private, except duties on imports, demands against the United States, and interest payable in coin. The constitutionality of this law was speedily tested, and the Supreme Court of the United States held that an act making mere paper promises to pay legal tender in the discharge of debts previously contracted was not a means appropriate and necessary and really calculated to carry into effect any express power vested in Congress, and was inconsistent with the spirit of the Constitution and pro- hibited by that instrument.^ After a reorganization of the Supreme Court, the case was again submitted to that tribunal, and it was then held that the legal tender acts were constitutional as to contracts made before and after their passage by Congress — a strong argument, being based on the necessities of war time. Even this argument was cast aside later, when, in 1878, Congress passed an act that the Treasury should not retire or cancel legal tender notes on their redemption, but reissue them and keep them in circulation; and the measure was upheld by the Court.^ As a result, it may be said that Congress may create legal tender notes whenever it may be deemed necessary. The power over the monetary system is virtually exclusive in Congress, for according to the express provision of the Constitu- tion no state can coin money, make anything but gold and silver coin of the United States a tender in the payment of debts, or emit bills of credit. A bill of credit has been defined by the Su- preme Court as a paper medium issued by a state on its own authority, designed to circulate between individuals and between the government and individuals for the ordinary purposes of society.' This limitation, however, was later interpreted in such a way as to authorize the issue of paper money through a public corporation in which the state was the sole or principal stockholder, for the Court maintained that to constitute a bill of credit within the meaning of the federal Constitution it must be issued by the state, "on the credit of the state," and designed to circulate as money. Under this states' rights interpretation, the provision of the * Hepburn v. Griswold, 8 Wallace, 603. ' Juilliard v. Greenman, no U. S. R., 421. 3 Craig et al v. Missouri, 4 Peters, 410. '^']b American Government and Politics federal Constitution forbidding states to emit bills of credit was substantially annulled, and an enormous amount of state bank paper, often without a sound currency basis, was put into circu- lation, with what results every student of "the middle period" of our history is well acquainted. At length, in 1866, Congress determined to centralize the mone- tary control, and it accordingly passed an act imposing a tax of ten per cent annually on all state bank issues. The tax was up- held by the Supreme Court of the United States in the case of Veazie Bank v. Fenno, and thus the states were forced out of the paper money business.^ The money of the United States now falls into two groups: paper and coin. The former embraces United States notes or, as they are more popularly known. Civil War "greenbacks," which are in circulation under the redemption act which went into effect in 1879, placing them on a gold basis; treasury notes issued under the act of 1890 for the purchase of silver (now re- pealed); gold certificates issued whenever the reserve in the Treasury is above $100,000,000; silver certificates issued for the purchase of silver under the Bland- AlHson bill of 1878 (now repealed) ; and national bank notes.- The whole system was put on a gold basis by act of Congress in 1900. The preparation of the paper money of the United States is in charge of the bureau of engraving and printing in the Depart- ment of the Treasury. The coins are made at three United States mints — Philadelphia, San Francisco, and New Orleans. In addition to the mints, federal assay offices are maintained at New York, St. Louis, Denver, Seattle, and a few other points where private persons may deposit gold and silver bullion and have its value determined by experts. Under the monetary power. Congress has provided a system by which private associations known as national banks may be formed. The capital stock of the national bank varies according ^ It is impossible to give here even the most meagre outline of the long and complicated history of the American monetary system. For this, see the admirable work by Professor Dewey, Financial History of the United States. ^ The coins include gold pieces: $20, $10, $5, and $2,50; and the silver pieces: the dollar (no longer coined), the 50, 25, and 10 cent pieces, and the minor pieces: the nickel and the copper cent. Taxation and Finance yji to the population of the city in which it is located. Each na- tional banking concern is required to deposit with the comptroller of the currency at Washington United States bonds equivalent to twenty-five per cent of its capital stock in case the capitaliza- tion is under $150,000, and bonds equivalent to at least $50,000 if the capitalization is over $150,000 ; ^ and in turn it may issue through the comptroller national bank notes equal to the par value of the United States bonds so deposited. In case a national bank fails and cannot redeem its notes, the comptroller may sell its bonds and apply the proceeds to the redemption. To secure further elasticity for the currency, an act was passed in 1908 authorizing the formation of national bank associations (composed of not less than ten banks having an aggregate capital and surplus of at least $5,000,000), and empowering such associa- tions to issue and circulate notes on the basis of certain specified securities. In 1908 there were in active operation 6,827 national banks with a combined capital of over $900,000,000; but very few of them saw fit to take advantage of this new law. The general supervision of taxation and finance in all its branches is vested in the Secretary of the Treasury Department, who must scrutinize the annual collection and disbursement of seven or eight hundred miUion dollars and account accurately for every penny of it — a huge bookkeeping undertaking. He must also master the theoretical and practical questions of fin- ance, in order to make recommendations to Congress and to meet the demands of that body for expert advice; and he must secure a fair and impartial administration of the customs duties which are irritating to importers at best and doubly irritating when administered in an irregular and arbitrary fashion. As in other departments of the federal government, of course, the work is distributed among offices and bureaus. Immediately under the Secretary of the Treasury are three assistant secre- taries, a chief clerk, and a supervising architect. Each of the assistant secretaries has assigned to him certain definite duties. One assistant superintends the customs and special agents; an- other has general supervision of the preparation of money; and a third, control over the internal revenue office.- To look after the accounts of the various departments which, of course, must * This is the minimum. ^ Each has other dutits as well. ^"jS American Government and Politics draw their money from the public treasury, there is, in the Treas- ury Department, a group of auditors to each of whom is assigned a branch of accounts; while the general supervision of all the ac- counting, except that relating to the post-office, is vested in the comptroller of the treasury, who must be distinguished from the comptroller of the currency, an officer charged with supervising the national banking system/ ' The receipt, custody, and disbursement of public moneys are placed in charge of the Treasurer of the United States; the issue of bonds and other financial paper of the United States is under the register of the treasury; the mints and assay offices are under the director of the mint; the superinten- dence of the internal revenue is vested in a commissioner of internal revenue; while the preparation of bonds, notes, and other similar paper is placed in charge of the bureau of printing and engraving. The work of the Treasury Department does not even end here. It embraces, in addition, the bureau of public health and marine hospital service which guards our ports against contagious diseases and makes provision for disabled seamen. CHAPTER XIX y THE REGULATION OF COMMERCE The Power of Congress Judicially Interpreted Congress has power to regulate commerce with foreign nations, among the several states, and with the Indian tribes; and it may make all laws necessary and proper to carry this power into effect.^ The term "interstate commerce" has been inter- preted by a long line of judicial decisions to include the carriage of passengers, the transportation of commodities, and the trans- mission of ideas, orders, and information by telephone or tele- graph from a point in one state to a point in another.^ In a word, it covers traffic and intercourse in its broadest sense regardless of the changes which time and mechanical ingenuity have wrought. It does not, however, include life, fire, and marine insurance or or- dinary contractual relations, even though the latter are incident to the conduct of interstate business. Notwithstanding the seeming clearness of this definition of the power of Congress over interstate commerce, it is very difficult to draw the Hne between acts affecting commerce wholly within a state and acts affecting commerce between states.^ In general we may say, however, that the Supreme Court has upheld state legislation primarily designed for legitimate local purposes, al- though it may impinge at points on interstate traffic. Federal Control of Interstate Commerce The statutes now in force regulating interstate commerce may be classified into three groups: (i) those controlling railways and common carriers; (2) those designed to prevent trusts and ^ This power is subject to the limitation that Congress cannot lay duties on exports from any state, give preference to the ports of one commonwealth over those of another, or compel vessels bound from one state to another to enter, clear, or pay duties in any state. ^ For the constitutional provisions and an important illustrative case, see Readings, p. 343. ' For an illustrative case, see Readings, p. 348. See below, chap. xxii. 379 jSo American Government and Politics combinations in restraint of trade; and (3) those aimed at miscel- laneous objects, such as the pure food law and the law imposing habiUty on railway corporations for injuries to their employees. In the beginning of the railway era in the United States, Con- gress made no attempt to devise a large and far-sighted plan of public control, but negligently devoted its attention to granting generous favors to railway corporations. As a result all early railway legislation deals with grants of public lands, concessions of "rights of way," the remission of duties on railway materials imported from abroad, and kindred measures favoring a rapid development of the railway system. There was practically no agitation for regulation in the interest of the public until the close of the Civil War. In 1868, the House committee on roads and canals reported that Congress had power to regulate interstate railways, secure the safety of travellers, and prescribe uniform and equitable rates and adequate connections; but the House failed to act. Again, in 1872, on a recommendation embodied in the President's message, a Senate committee devised a comprehensive plan for regulating railways, but there was no practical outcome. In and out of Congress^ however, railway regulation had become the subject of earnest discussion. The connection of many Congressmen with great railway interests was notorious, and it was beUeved, with good reason, that railway corporations were buying support in the national legislature. At length, in 1885, when it was apparent that the demand for reform could be no longer disregarded, the Senate appointed a committee which conducted a long investigation into the opera- tion of railways throughout the United States and made a pres- entation of such notorious abuses that Congress was compelled to act.^ The result was the law of 1887, creating an Interstate Commerce Commission and providing certain regulations for common carriers. This original act, the amendatory and supplementary acts, the decisions of the courts, and the orders and decisions of the Commission now constitute a formidable body of federal law, and it is impossible to give here more than a brief statement of the general principles.^ ^ For an extract from this Report, see Readings, p. 352. ^ Consult Judson, The Law of Interstate Commerce. The Jlegulation of Commerce 381 The administration of the law is placed in the hands of an Interstate Commerce Commission which is entirely separate from the Department of Commerce and Labor. This commission consists of seven members appointed by the President and Senate and paid a salary of $10,000 each. The Act to Regulate Commerce, as the law is called, appUes to corporations and persons carrying oil or other commodities, except water and gas, by means of pipe Hnes, or transporting passengers or property by railway or by rail and water from one state or territory into another state or territory, or from one place in any territory to another place within the same territory, or from any place in the United States to a foreign country.^ A large number of restraints are laid upon the carriers and cor- porations to whom the Act applies. All charges for services in connection with transportation of passengers or property must be just and reasonable; no common carrier can grant free passes or free transportation except to certain specified persons and in- stitutions; and railroad companies are forbidden to transport commodities in which they have a direct property interest, ex- cept timber and its products. Common carriers must construct switches and make connections with lateral and branch lines of railw^ays. They cannot grant rebates, drawbacks, and special rates, thus discriminating and making lower charges to some persons than to others for similar services; they cannot give any undue or unreasonable preference or advantage to any particular person, company, corporation or locality; and they are forbidden to make arrangements for pooUng freights of different and com- peting railways, or for dividing among themselves the net proceeds of the earnings of such roads. They must print and keep open for pubHc inspection schedules showing rates, fares, and charges for transportation, and no change can be made in the rates, fares, and charges so pubUshed except after thirty days' notice to the Interstate Commerce Commission. Finally they must also ren- der full and complete annual reports to the Commission in the manner prescribed by that body; and there is now established * The Act does not apply to the transportation of passengers or property or to receiving, delivery, storage or handling of property wholly within one state. The Elkins law of February 19, 1903, prohibits rebating and allows proceedings in the courts by injunction to restrain common carriers from departing from the published rates. 382 American Government and^ Politics one uniform system of railway accounting throughout the United States. Certain specific powers and duties are vested in the Interstate Commerce Commission by law. The Commission is required to investigate the manner in which business is conducted by those ^Triers to whom the law applies^^itjin^thB request of the CornnussToh any district attorney of theUnitedT^ates must prose- cute, in the proper court, offenders against the law. The Com- mission is empowered to summon witnesses and compel the pro- duction of books, papers, and other documents relating to any matter under investigation.^ Any person, corporation, body politic, or municipal organization complaining of anything done or omitted to be done by any common carrier, contrary to the provision of the law, may apply to the Commission by a petition stating the facts, and the Commission must thereupon make an investigation into the alleged violations. The Commission is empowered, after full hearing upon such a compTaihrbr upon complaint of any common carrier, tp determine and prescribe just and reasonable maximum rates and charges, as well as just and reasonable regulations and practices. The Commission may fur- thermore award damages to persons injured by a violation of the law on the part of any common carrier. It is thus apparent that the federal government has taken upon itself the supervision of the entire transportation system of the United States so far as it involves interstate and foreign com- merce; and inasmuch as practically all local carriers are now absorbed into the great corporations, it may be said the power of the Commission extends to the utmost ramifications of our net- work of railways. Undoubtedly the federal government is, by this process, drawing to itself an ever greater amount of power. Without question, the tendency of Congress to increase and ex- tend this national system of regulation will result in concentrating in Washington more than ever the conflict between the govern- ment and the representatives of the railway and transportation interests.^ * The Commission cannot punish any one for refusing to testify; it must apply to a federal court in such a case. * A law providing for an interstate commerce court and still stricter super- vision over conmierce is recommended by President Taft and is now (1910) before Congress. The Regulation of Commerce 383 In the meanwhile the government is also endeavoring to control the great trusts and corporations engaged in interstate business. The way in which one industry after another has been absorbed by corporations, national and even international in the extent of their operations, is a matter of recent and famiUar history. All great staple industries are now consoUdated; and ever3rwhere competition is being stifled by the combination of competing con- cerns. Moreover the control over the bank deposits throughout the whole United States is tending Hkewise to centraHze in the hands of large financial institutions which work in conjimction with the business organizations. In the very beginning of this revolution there were a few states- men who saw that the arm of the government must be used in some way to check and control the men in whose hands this enor- mous power over capital, commerce, and industry was concen- trating ; but it can hardly be said that there has been any general agreement either as to the temporary or final nature of that con- trol. A protest against the inaction of the federal government in the face of this great economic centralization was made by the radical minor parties shortly after the Civil War; and they grew more insistent as time advanced. At length, in 1890, Congress passed a law designed "to protect trade and commerce against unlawful restraint and monopolies," — the famous Sherman Anti-trust Act.^ By this law, it was provided that every con- tract, combination, in the form of a trust or otherwise, or conspir- acy in restraint of trade or commerce among the several states and territories and with foreign nations was illegal; and appropri- ate penalties were prescribed for violations. Under the interpre- tation of the Supreme Court, the law has been held to forbid all combinations among common carriers in restraint of trade, whether reasonable or unreasonable; and in the Northern Se- curities case the Court declared that even the formation of a holding company controlling a majority of the stock in two com- peting railways was an illegal combination. It must be noted, however, that under the law, corporations or trusts, as such, cannot be regulated; they must be engaged in in- terstate or foreign commerce in order to come within the terms of the act. In the Sugar Trust case,^ for example, the Court held ' This Act is in the Readings, p. 358. 2 United States v. E. C. Knight Co., 156 U. S. R., i. 384 American Government and Politics that the Anti-trust law did not control a great sugar company which had secured practically a monopoly of the manufacture of sugar in the United States by purchasing the stock of the various refining companies. The ground of the opinion was that the monopolies forbidden by the law were those actually involving interstate or foreign commerce, not those simply controlling the manufacture of commodities, even though such commodities after- ward entered interstate and foreign traffic. In this connection the Court said that if Congress could regulate the great corpora- tions that merely happened to own property in a large number of states, it could practically exclude the states from control over commerce and manufactures. Where, however, a number of companies, engaged in the inanu- facture of some article, form an organization, divide the territory of the United States among themselves for the sale of that article, and suppress competition, the Act appHes. The Court has so held on* the ground that, when the direct, immediate, and intended effect of a contract or combination among dealers in a commodity is the enhancement of prices and suppression of competition, it is a restraint in that commodity.^ The Anti-trust Act Hkewise applies to trade unions whose operations affect interstate commerce, as well as to other combina- tions. For example, in the case of Loewe v. Lawlor the Court held that when a labor organization, by the use of labels and notices in labor papers and other means, boycotts a manufacturing concern doing a large interstate business, the said organization becomes a combination in restraint of trade and is liable to the penalties of the Anti-trust Act.^ • In spite of the formidable appearance of the Sherman law, its effect in checking the formation of trusts and combinations has been very sUght. To facihtate the enforcement of the law, there was estabHshed in 1903, on the recommendation of President Roosevelt, a bureau of corporations in the Department of Com- merce and Labor. The head of the bureau, bearing the title of the commissioner of corporations, is authorized to investigate the organization, conduct, and management of corporations (other than common carriers ^) engaged in interstate commerce; to com- ' Addyston Pipe and Steel Co. v. United States, 175 U. S. R., 211. = 208, U. S. R., 274. ' Subject to the Interstate Commerce Act. The Regulation of Commerce 385 pel by subpoena the attendance of witnesses and the production of books, papers, and documents for such purposes; to administer oaths; to require reports from such corporations; and to investi- gate the legal conditions appUcable to them — in a word, to collect and make pubUc information of every sort bearing upon the organization and conduct of great concerns engaged in inter- state and foreign commerce. The business of the bureau, therefore, is not the prosecution of criminals, but the investiga- tion of law and fact for the purpose of furnishing to the govern- ment a sound basis for remedial legislation. Within recent years there has come a clearer understanding of the nature of our economic development, and the undiscriminat- ing criticism of all corporations is being replaced by saner views based upon the recognition of the fact that the era of small com- peting business concerns is at an end. Nevertheless there still is a large variety of views as to the fundamental nature and tendency of our economic development. Only relatively few men in public Ufe to-day assume the attitude of the past generation that trusts and corporations, as such, should be broken up. A large number of publicists would discriminate between what they are pleased to call "good" and "bad" trusts, placing in the former category those business concerns which do not attempt complete monopo- lies and unreasonable enhancement of prices and in the latter category those corporations which are constantly violating the law and endeavoring to create monopolies. Finally there are the sociaUsts, who contend that monopoly is the inevitable result of competition, that competition is a crude and wasteful method of doing business, and that the ultimate outcome will be the assump- tion of the ownership of the great monopoUes by the government. At all events there is, at the present time, a decided movement away from the old bUnd hostility to corporations, in the direction of some form of government regulation. In this movement, Mr. Roosevelt has taken a prominent part. When governor of New York, he said in a message to the legislature: "Much of the legislation, not only proposed but enacted against trusts, is not one whit more inteUigent than the mediaeval Bull against a comet, and has not been one particle more effective." As President, he said in his annual message to Congress in 1905 : " It is generally useless to try to stop all restraint on competition, whether this restraint be reasonable or unreasonable; and when it is not useless, 2C 386 American Government and Politics it is generally hurtful." In his Report of 1908, the commissioner of corporations declared: "There is an irresistible movement toward concentration in business. We must definitely recognize this as an inevitable economic law. We must also recognize the fact that industrial concentration is already largely accompHshed in spite of general statutory prohibition. Recognizing these facts, the aim of new legislation should be to regulate rather than to prohibit combination. . . . Our present law forbidding all combination, therefore, needs adaptation to the actual facts." ^ In spite of the demand for a modification of the Sherman Anti- trust law Congress has, however, as yet refused to act. One of the most important controverted questions in connection with the regulation of corporations is the wise division of power between the state and federal governments. From the stand- point of industry and commerce, the nation is a unit, but the power of control in this economic unity is divided among forty- six commonwealth governments and the national government. The former create corporations and regulate their intra-state operations; the latter attempts to supervise the interstate and foreign business of corporations, without assuming the right to prescribe terms as to their creation and continuance. It is claimed that if the power belonging to each of the two governments were adequately used, complete supervision could be secured, but it must be remembered that the exact domain of power belonging, to each is vague, and the Hne between the two jurisdictions almost impossible to draw. Furthermore, the courts enjoy the power to annul the laws which encroach upon the sphere belonging to each of the governments without having the right to fill out that va- cant sphere by appropriate legislation. This anomalous situa- tion of a unified economic system and a divided control has led, within recent years, to a demand for a higher degree of centraliza- tion of power in the hands of the federal government; and Presi- dent Taft has proposed to accomplish this by an act providing for the federal incorporation of concerns engaged in interstate commerce — allowing them to buy and hold state concerns as well — and vesting larger supervisory functions in the national government. ' Report of the Department of Commerce and Labor (1908), p. 306. The Regulation of Commerce 387 Foreign Commerce — Immigration Under the general power to regxilate commerce, Congress en- joys full authority over the admission of immigrants to" the United States. For a long time, the principal object of our im- migration laws was to encourage the coming of foreigners to our country; but within recent years several attempts have been made, not so much to check immigration, as to eliminate the more undesirable elements, such as those afflicted with dangerous contagious diseases, criminals, paupers, and other persons likely to become pubUc charges. The immigration law of the United States now makes pro- vision for the exclusion of three types of aliens: (i) the generally undesirable; (2) contract laborers; and (3) the Chinese and other Orientals. ^ The first group embraces idiots, feeble-minded persons, epilep- tics, paupers, persons Ukely to become pubHc charges, professional beggars, persons affected with tuberculosis or loathsome or dan- gerous contagious diseases, criminals, polygamists, anarchists, and prostitutes. It especially provided, however, that foreigners, who have been convicted of purely poHtical offences not involving moral turpitude, will not be excluded if they are otherwise admissible. The law also excludes contract laborers, that is, persons who have been induced to migrate to this country by offers or promises of employment or in consequence of an agreement to perform labor of any kind, skilled or unskilled.^ The law provides, however, that skilled laborers may be imported, if unemployed laborers of Uke kind cannot be found in the country. The third group of aliens to whom admission is denied are excluded under a series of treaties and agreements with China and Japan and laws of Congress enacted especially on demand of the working classes and the inhabitants of the states on the Pacific Coast.^ According to the terms of these laws, rules, and treaties, all Chinese are excluded, except teachers, students, travellers ' Tt is a misdemeanor for any person or concern to assist or encourage the migration of such laborers into the United States. Actors, singers, and professional classes are not included in this group. ^ There is no special law or treaty excluding Koreans or Japanese laborers from the United States; but the Japanese government, by arrangement with the federal authorities, is supposed to control the emigration of its 388 American Government and Politics' for curiosity or pleasure, merchants and their lawful wives and minor children, officials of the Chinese government and their servants, and certain other classes. To prevent violations of the law, provision is made for authorizing and registering the ad- mission of Chinese who fall within these groups. The administra- tion of the law, including the right to admit and exclude in accordance with the regulations, is vested in the immigration authorities, with an appeal to the commissioner-general of im- migration at Washington; and the decision of these administra- tive officers with regard to the facts in any case is not subject to judicial review.^ The cost of administering the immigration laws is partially met by a tax of four dollars levied on every ahen entering the United States.^ Every immigrant is required to state whether married or single, whether able to read or write, whether in possession of $50, or if less, how much, whether intending to join a relative or friend, and if so, when and where, and to give his nationahty, race, calling, or occupation, last residence, and final destination, — in addition to answering a number of other questions. Thus, a complete record of each immigrant is secured, in order that the government may keep a close scrutiny over the persons whom it admits. The government has furthermore instituted a searching medical examination. Each immigrant is examined by an in- spector for mental diseases, then by an inspector for internal dis- eases, and finally by an inspector of diseases of the eye. After running the gauntlet of the medical inspectors, the immi- grant is then closely questioned by a general inspector with regard laborers to the United States by refusing to issue passports to them. Under an act of Congress, approved February 20, 1907, whenever the President is satisfied that passports, issued by any foreign government to its citizens authorizing them to go to other countries than the United States, are really being used for the purpose of enabling the holders to enter the continental territory of the United States to the detriment of labor conditions therein, it is his duty to refuse admission to the citizens of the country issuing such passports. By virtue of the authority of this act. President Roosevelt, in March, 1907, issued an order that Japanese or Korean laborers, skilled and unskilled, who have received passports to Mexico, Canada, or Hawaii and attempt to enter the United States, should be excluded from our continental territory. ^ See Readings, p. 202. ^Of course persons in transit through the United States and diplomatic officers are not taxed. The Regulation of Commerce 389 to his desirability as an inhabitant of the United States. "The modus operandi at all government stations," says the former New York commissioner, Mr. Wachthorn, "is to place every individual applicant for admission to these shores on the defensive and to make it incumbent upon him ... to show why he should be admitted; but to do it in a humane spirit and treat each applicant with becoming consideration, without for a moment losing sight of the object that Congress had in view in limiting admission to these shores to those who are sound in body and mind and who are without question likely to find support without depending in whole or in part on public or private charity." ^ Aliens whom the examining inspector is doubtful about ad- mitting are held for examination before a board of special inquiry at each port charged with hearing and deciding such cases. An appeal from an adverse decision of the board may be carried through the commissioner of the port and the commissioner- general of immigration to the Secretary of Commerce and Labor. Excluded aliens must be returned to their homes by the steam- ship companies which brought them. The general supervision of the whole system of immigration is vested in the commissioner-general of immigration in the Depart- ment of Commerce and Labor. He may estabhsh rules, prescribe forms of reports, entries, and other papers, and he may issue orders and instructions not inconsistent with the law, which he may deem useful in carrying out the provisions of the immigration act and in protecting aliens from fraud and loss. It is his duty, from time to time, to detail officers from the immigration service to make investigations of the number of aUens detained in penal, reformatory, and charitable institutions throughout the United States and to look after the deportation of aliens who have be- come public charges. At each port of entry, there is a commis- sioner of immigration who has under him a staff of inspectors and other officials. During the ten years preceding the fiscal year 1908 there was a steady annual increase in the number of immigrant aliens who entered the United States, but the figures for 1908 show a remark- able decline, only 782,870 being admitted for that year as against 1,285,349 for the year ending June 30, 1907. The upward ten- dency was, however, resumed during the following year. » The Outlook, Vol. LXXXVII, p. 897. 390 American Government and Politics Notwithstanding the enormous number of immigrants who have been admitted to the United States since the year i860, it is interesting to note that the percentage of foreign born during this period has remained practically stationary, as the following figures show: ^ Census Year i860 1870 1880 1890 I goo Total Popula- tion Con- sidered 31,443.321 38,558,371 50,155,783 63,069,756 76,303,387 Native Born Number 27,304,624 32,991,142 43,475,840 53,761,652 65,843,302 Per Cent of Total 86.8 85.6 86.7 85.2 86.3 Foreign Born Number 4,138,697 5,567,229 6,679,943 9,308,104 10,460,085 Per Cent of Total 13-2 14.4 13-3 14.8 13-7 Foreign Commerce — Tariff The history of tariff legislation runs back to the revenue act passed by the first federal Congress of 1789, for that law, in im- posing duties on foreign goods coming into the United States, contained some protective features. Washington in his message of January, 1790, recommended the promotion of such industries as would make the United States "independent of others for essential, particularly for military supplies," and Hamilton in his famous Report of the following year declared that the real inter- ests of the country, in his opinion, would be advanced rather than injured by "the due encouragement of manufactures." This notion steadily gained ground, especially because the country was practically dependent upon England for manufactured goods. The War of 18 12 gave a great impetus to this demand for an increased protection of American industries in order to give them a start against European competition and to make the nation economically independent. During the war, American manu- facturers, freed for a time from English competition, leaped forward with remarkable strides, and when peace was restored they asked for continued protection, especially for the estabhsh- ments which they had set up. The tariff bill of 18 16 was placed upon a broad nationaHst basis. Mr. Calhoun declared that en- couragement to American manufacture was "a sound national, ^ Report of the Secretary of Commerce and Labor (1908), p. 10, The Regulation of Commerce 391 truly American policy." Mr. Clay urged: "The object of pro- tecting manufactures was tKat we might eventually get articles of necessity made as cheap at home as they could be imported, and thereby produce an independence of foreign countries." For a time, this protectionist poUcy was regarded as a tempo- rary makeshift to give our "infant industries" a start with a view to enabUng them ultimately to meet European competition in a fair open contest. However, this idea was slowly abandoned in the North as the protected interests came to be a powerful factor in determining revenue policies; but in the South the tariff continued to be stoutly resisted until long after the Civil War on the ground that it merely enriched the northern manu- facturing states at the expense of the states which produced cotton and raw materials — that is, made the latter pay high duties on manufactured goods purchased in exchange for the raw materials sold in foreign markets. The Republican party in the campaign of i860 declared unequiv- ocally for the protection of American industries,^ and after the outbreak of Civil War the government was forced to fix high tariff duties in order to raise revenues — and thus a combination of circumstances led to the adoption of the highest tariff rates which had yet been made. This poHcy was continued, however, with some slight modifications ^ after the war, and in 1890 a still higher rate was provided by the McKinley bill, — a rate which proved to be so high that it produced a reaction throughout the country that resulted in a restoration of the Democratic party to power. The Democrats at once set to work on a new tariff bill, but they were unable to agree on any very drastic reductions, except in the duties on wool, so that their tariff measure of 1894 (the Wilson bill) cannot be regarded as a serious departure from the protec- tionist pohcy. Moreover, it failed to produce revenues as expected, and when the Republicans were returned in 1897, they revised the tariff again by the Dingley bill, which was in many respects an advance in rates over the McKinley measure. This law remained in force until 1909, when the Republicans at a special session made another general revision without adopting any striking reductions.^ * Readings, p. 99. ^ Note especially the revisions of 1870, 1872, and 1883. ^ For the general character of a tariff bill, see Readings, p. 337. The tariff act of 1909 provided that an additional duty of 25 per cent ad valorem, inight; 392 American Government and Politics During the passage of this bill it became evident that there was no very distinct Hne of division between the Repubhcans and the Democrats on the tariff, for the latter on particular matters affect- ing their several locaUties were as strongly protectionist as the former. Indeed, the cleavage was within the Repubhcan party, for a number of Repubhcans, especially from the Middle West, refused to vote for the bill in its final form.^ In connection with federal control over commerce, it should be noted that foreign commerce may also be regulated by the Presi- dent and the Senate under their treaty-making power. They might, for instance, arrange with a foreign country a treaty waiv- ing some of the provision of the tariff act, or adding to the terms of the immigration law. There is no doubt that a treaty, duly ratified, is as much a part of the law of the land as is a statute, and, as the later expression of the lawgiver always replaces any preceding law that is inconsistent or repugnant, there is no doubt that a treaty affecting foreign commerce would supersede any preceding act of a Congress, in so far as there might be a conflict. The Department of Commerce and Labor Notwithstanding the amount and variety of federal legislation relative to commercial and industrial matters, it was not until 1903 that a separate Department of Commerce and Labor was established by the consolidation and reorganization of several bureaus and offices, including the Department of Labor; and even at the present time the most important branch of actual ad- ministration is vested in the Interstate Commerce Commission, which is independent of any department. The Department of Commerce and Labor embraces a number of bureaus. The bureau of immigration and naturalization is charged with the inspection of immigrants and the supervision of the laws controlHng immigration and the naturalization of foreigners. The bureau of corporations, as we have seen, is prin- be imposed upon certain imports at the discretion of the President, thus putting it in his power to meet discriminations on the part of foreign coun- tries. To assist the President in securing information with regard to this and other matters intrusted to his care, a board of three members was instituted. This board was organized in September, 1909. * For arguments on the tariff, see Seager, Introduction to Economics ^ pp. 371 ff. The Regulation of Commerce 393 cipally engaged in collecting information relative to the conduct of the great corporations and combinations doing interstate business.' The bureau of labor is charged with acquiring and diffusing among the people of the United States useful informa- tion on subjects connected with labor, in the most general and comprehensive sense of the word, including the relations of capi- tal and labor, hours of work, wages, labor legislation, the means of promoting the material, intellectual, and moral prosperity of the working class. The bureau of the census has control of the decennial census, and owing to the extensive operations now included in that huge undertaking, the bureau has a large force en- gaged continually on statistical and other problems. Commer- cial statistics and consular reports and other data relative pri- marily to foreign commerce, however, are in charge of the special bureau of statistics.- To assist American manufacturers in the fierce international struggle for markets. Congress created, in 1905, the bureau of manufactures, charged with collecting precise information, as to the demands for goods in all important foreign countries. In addition to the several hundred American consular officers en- gaged in gathering such information, the bureau has a number of expert special agents in certain fields. It pubUshes reports on opportunities for selling American products abroad; it has in process of compilation a commercial directory of the whole world; it collects and translates the tariff laws of other countries; and it provides for the translation of foreign documents and decrees useful to American business men. Thus the federal government is a clearing house for information on foreign commerce.^ ^ Except carriers subject to the control of the Interstate Commerce Com- mission. ^ Among the other branches of the Department of Commerce and Labor may be included the bureau of navigation, supervising (through shipping commissioners at the principal ports) contracts between seamen and masters, and the conditions of vessels; the steamboat inspection service, charged with testing the seaworthiness of steam and saihng vessels; the Hghthouse board; the bureau of fisheries, which supervises fish culture and the conser- vation of fishery resources; the Alaska seal- fur service; the coast and geodetic survey; and the bureau of standards, designed to make possible uniform and exact measures by the improvement of standard measuring instruments and the methods of measurement. ^ Congress has full power to regulate commerce with the Indians, and until 1 87 1 it was the policy to deal with them as tribes by means of treaties. 394 American Government and Politics The National Postal Service Post-offices and post-roads and the transmission of mail may- be properly considered in relation to the power of the federal gov- ernment to control interstate commerce, although a special war- rant for this branch of administration is contained in a separate clause of the Constitution. Under the Articles of Confederation, Congress merely had the power to estabUsh and regulate the pos- tal business from one state to another; but in order to facihtate the increase of intercourse throughout the nation, the power of managing not only the interstate mails, but the transmission of all mail matter whatsoever, was vested in Congress. Those who hold to a strict interpretation of the Constitution contend that the power to estabHsh post-offices and post-roads means only the right to direct where post-offices shall be main- tained and on what roads mails shall be carried; but in practice, it has been shown that the power includes the right to construct buildings; and Story declares that there is no reason why Con- gress could not build and operate roads for the purpose of trans- mitting mails. "If it be the right and duty of Congress," he asks, "to provide adequate means for the transportation of the mails wherever the public good requires it, what Hmit is there to these means other than that they are appropriate to the end ?"^ Professor Burgess, on the other hand, holds that it is not settled law that the government may build, buy, and own railroads, or make the telegraph business a governmental monopoly.^ " The transmission of mail matter is exclusively vested in the federal government — that is. Congress can prohibit its carriage by private companies. The question as to what can be properly Since that year federal relations with the Indians have been conducted by the President and Congress through agreements and contracts. Those Indians who have left their tribes and settled down Uke white inhabitants are recognized as citizens, but those who remain with their people are not citizens. The total Indian population according to the census of 1900 was 266,760, a decrease of over 6000 since 1890. The figures of 1908, however, show an increase to 300,412. Most of these Indians reside in reservations, of which there are about 140. The federal government supervises the Indians hrough the bureau of Indian affairs in the Department of the Interior, and makes large grants of money to feed, clothe, and educate them. ^ Commentaries, Vol. II, sec. 1141. ^Political Science and Constitutional Law, Vol. II, p. 141, The Regulation of Commerce 395 regarded as mail matter has been answered by the Supreme Court to the effect that it is Hmited to letters, papers, and other things which were commonly reckoned as mail at the time when the Constitution was framed.^ Under this power to regulate the transmission of mail matter, Congress may exclude from the mails obscene, lewd, and lascivious literature or matter relating to lotteries,- but it cannot prohibit the carriage, by private com- panies, of any matter which it may so exclude.^ Under this general power to establish post-offices and post- roads, the federal government has built up a vast and complicated system. We began in 1789 with 75 post-offices, or one for every 50,000 persons in round numbers, and at the close of the nine- teenth century there were more than 70,000 post-offices,^ or one for about every 1000 inhabitants. The postal charges in 1792 ranged from six cents for a single sheet transmitted thirty miles to twenty-five cents for the same carried more than 450 miles. To-day an ordinary letter may be sent from Maine to Manila or from San Francisco to London or Berlin for two cents.^ In the first year of its existence under the Constitution, the Post-Office Department received $37,000 and expended $32,000; for the fiscal year ending in June, 1908, the postal receipts amounted to $191,478,663.41, and the expenditures were $208,351,886.15, showing a deficit of more than $16,000,000. The post-office not only carries letters, papers, post-cards, and parcels limited in size; it transmits money also. The registry service was estabHshed by Congress in 1855; and it is now pos- sible for any one, by the payment of ten cents in addition to the regular postage, to secure the registration of a letter at every point in its journey, a return receipt from the person to whom it is sent, and an insurance up to the value of $50 — a system prac- tically guaranteeing the proper delivery. In 1864, Congress es- tabUshed post-office money orders, by which payment to the ad- dressee at the other end of the line is absolutely guaranteed and practically every possibility of loss obviated. ' Ex parte Jackson, 96 U. S. R., 727. ^ In re Rapier, 143 U. S. R., no. 3 Except, of course, so far as interstate commerce is concerned; but here a question as to freedom of the press might arise. * Post-offices are graded into four classes on a basis of receipts. 'The one-cent post-card was introduced in 1872. 39^ American Government and Politics Congress has made special arrangements for the transmission of printed matter, in order to encourage the establishment of periodicals and their circulation among the people. Newspapers are carried free within the county of publication, except in cities having free delivery; ^ and a bulk rate of one cent a pound is provided for periodicals entered at the post-office as second-class matter, i.e., newspapers and other periodical pubHcations regu- larly issued, at stated intervals, and "published for the dissemina- tion of information of a public character, or devoted to literature, the sciences, arts, or some special industry, and having a legitimate list of subscribers." ^ The bulk rate of one cent a pound on this matter is far below the actual cost of transmission, and is largely responsible for the annual deficit mentioned above. In 1907 the first class mail (letters, etc.) contributed 12.81 per cent of the total weight of mail and 75.74 per cent of the revenue, while the second class contributed 63.91 per cent of the weight and 5.19 per cent of the revenue. There is also an enormous amount of the federal government's mail carried free. It is contended, however, by those who oppose the increase in the rates for newspapers and periodicals that this cost of transportation is excessively high on account of the unbusiness- like contracts which the government makes with railway com- panies. The case is put this way by a writer in 1904: " Since 1878 there has been no reduction in the rate provided by law for railroad transportation of mails, which figures out, per ton mile, $1.17 on a minimum of 200 pounds per day, 18.7 cents on a daily average of 5000 pounds, and 5.8 cents on each ad- ditional 2000 pounds average; though an express company will carry for other patrons a hundred pounds a thousand miles for $3.50, being 7 cents per ton mile . . . and the railroads them- selves carry a hundred pounds of freight a thousand miles for from$i down to 35 cents, being from 2 cents to .7 cent per ton mile. A passenger is individually ticketed and 100 pounds baggage individually checked at the mileage rate of 2 cents per * It should be noted that this rule giving free circulation to newspapers does not apply to cities within the county of publication, having special delivery, and thus it comes about that a paper published in New York must pay one cent for each copy circulated in that county, but only one cent a pound for papers delivered in San Francisco, or Portland, Oregon. ^ Publications designed primarily for advertising purposes or for free circulation or for circulation at nominal rates are excluded from this class. The Regulation of Commerce 397 mile, equivalent to 16 cents per ton mile, while commuters are carried as low as ^ cent a mile, or 4 cents a ton mile." ^ An act of March 2, 1907, made some provision for a reduction in rail- road postal rates; but further reductions are being demanded. It is still claimed that were the government as anxious to make right terms with railways as to afford proper service to the public there need be no increase in postal rates. The whole question is now before Congress. The development of free deUvery has been one of the most re- markable features in the evolution of our postal system. In 1863, it was established in all cities having at least 50,000 inhab- itants, and it has now been extended to cities having 10,000 in- habitants. In 1885 a system was introduced by which immediate "special" delivery on receipt at the post-ofhce of the addressee can be secured by the payment of ten cents, in addition to the ordinary postage. A third branch of postal deUvery has now been instituted for country districts. This "rural free delivery service" began ex- perimentally in 1897 with an appropriation of $40,000 and the establishment of forty-four routes. The expenditure for the fiscal year, ending June 30, 1897, was only $14,840, but in 1908 the amount was more than $34,000,000, and there were in operation in that year 39,516 routes, distributing nearly two billion pieces of mail to more than 18,000,000 people residing in rural districts. The incidental effects of this rural service have been of great importance, for, in addition to relieving the tedium and isolation of country Uf e, it is a powerful factor in the improvement of public roads The Post-Office Department is steadily insisting that the routes covered by rural delivery shall be maintained in good con- dition throughout all the seasons of the year, and in response to this pressure, state legislatures are increasing their appropria- tions for the building and improvement of highways. Although Congress has provided for the transmission of books and small parcels of merchandise by mail, the restrictions are so narrow and the rates so high as to lead to a demand for the estabhshment of a special system, a "parcels post.'.' In Great Britain parcels not more than three feet long can be sent for six cents for the first pound and two cents for each additional pound ^ Reinsch, Readings, p. 385. 98 American Government and Politics up to the weight of eleven pounds. Measures providing for a similar post have often been introduced in Congress, but they have been defeated by the activities of express companies and other common carriers, who contend that it would mean almost the destruction of their private business. Moreover, since the establishment of the rural free deHvery service, the merchants of small towns are protesting against the parcels post on the ground that it would enable the great department stores of the cities to undersell them. It, therefore, seems practically impossible at the present time to secure the establishment of this service, in spite of the enormous saving and convenience which it would undoubt- edly offer the public. Another function generally performed by the post-office in foreign countries is that of acting as a savings bank receiving deposits of money up to a certain amount and paying interest thereon. In order to encourage thrift and secure absolute safety for the savings of the small depositors, it has been pro- posed within recent years to establish such an institution in the United States.^ The system was recommended by the Post- master-General in his Report of 1908, in which he called attention to the fact that more than $3,600,000,000 was deposited in private savings banks throughout the United States. He urged that inasmuch as there were at least thirty-two states inade- quately supplied with such concerns, not less than half a bilUon dollars was kept in hiding — a sum which could be brought into circulation through the agency of postal savings banks. As an evidence of the demand for this new institution, he cited the fact that American citizens during the previous year bought no less than $8,000,000 worth of postal orders payable to themselves, in order to secure safety for their money. He accordingly approved the measure, then before the Senate, providing that post-offices should receive deposits and turn the funds over to national banks, requiring the latter to pay not less than 2\ per cent interest, of which 2 per cent was to go to depositors of sums up to $500.^ • ^The Republican platform of 1908 stated that the party favored the establishment of a postal savings bank system for the convenience of the people and the encouragement of thrift; and the Democratic party favored the establishment of this bank, in case, the scheme of guaranteed bank de- posits should not be adopted. 2 The matter is now (19 10) pending in Congress. The Regulation of Commerce 399 The Post-Office Department The Post-Office Department is a vast business concern charged with the supervision of an army of employees, some stationed in Washington and others scattered throughout the United States — in the thousands of post-offices and on the railway trains and other vehicles for mail transmission. The direction of affairs is vested in the Postmaster- General, who appoints depart- mental employees under the civil service rules, nominates to the President a large number of local postmasters (but not with- out consulting interested members of Congress),^ manages postal finances, and hears appeals from subordinates. The Postmaster- General has four assistants, each of whom is responsible for one of the great branches of the postal service. The first has charge of appointments of postmasters, the estabhshment and discontinu- ance of offices, the adjustment of salaries and allowances for rent, clerk hire, and other expenses, and the city dehvery service. The second assistant looks after all matters pertaining to the transportation of mails; appointments to the railway mail service; authorization of transportation by railways and other carriers; the making of contracts for carriage; the inspection of the carry- ing service; and the equipment of the service with the devices necessary for the conduct of its business. The third assistant is the finance officer of the Department, and he is in charge of the accounts, the issue of stamps and money orders, the registry system, and classification of mail matter. The fourth assistant superintends the divisions of rural deUvery, supplies, dead letters, and topography. The administration of the post-office is greatly hampered by the fact that Congress controls rates and locates buildings, under the pressure of " politics," often with slight re- gard for economy or efficiency. The postal authorities possess the power to exclude from the mails the letters and papers of persons and corporations practis- ing fraud and deception, and also the power to prohibit the use of the mails for matter tending to encourage crime and immorahty. When any person attempts, by fraudulent methods, to procure money or property through the mails, the postal authorities simply withdraw the f)rivileges of the mails absolutely. This is ' He also appoints many postmasters himself. 400 American Government and Politics done by instructing the postmaster at the place where the fraud is practised to stamp on all letters addressed to the person in question the word "fraudulent"; and return them to the writers if there is a return card, or to the Dead Letter Office. The Post- Office Department employs inspectors to conduct investigations into the misuse of the mails, and make reports to the Postmaster- General. These reports are the principal evidence upon which ''fraud orders" are based. In practice the postal authorities serve notice on persons charged with abusing mail privileges, and inform them of the nature of the accusation. If an accused wishes to make defence, he must go to Washington and present his case. It has been uniformly held by the courts that the de- cision of the Postmaster- General on questions of fact in fraud order cases is not subject to judicial review.^ The Court, how- ever, will review the question as to whether a particular scheme is fraudulent. The exercise of this large power has been entirely reprobated by many champions of individual liberty, who hold that it is not the business of the government to act as the paternal guardian of the citizens, protecting them from their own folly against the machina- tions of patent medicine fakirs and "get-rich" swindlers; or in guiding them as to the proper literature for the good of their morals. On the other hand, it is asked, with a good deal of plausibility, whether the government should permit the use of the mails by fraudulent concerns, and thus become a party to the deception of innocent persons.^ ' Readings, p. 204. ^ For example, a few years ago a company in New York began to advertise foimtain pens at $2.50 apiece, and promised at the same time to employ every purchaser of a pen at $8 a week in letter- writing, "It was an endless chain scheme, growing constantly wider. All revenues were derived from the sale of the pens. This inverted financial pyramid was not thought stable by the post-office people, and the concern was put out of business by a fraud order in October, 1902, after having secured 19,000 patrons." Reinsch, Readings, p. 392. CHAPTER XX NATIONAL RESOURCES The Federal Land Policy The United States at the close of the War for Independence possessed an enormous domain of unsettled lands beyond the Alleghanies, and from time to time new areas have been added by- purchase and conquest.^ It is estimated that the United States has possessed at one time or another a public domain of no less than 2,825,000 square miles — an area more than ten times the size of the German empire and more than twenty times the size of Great Britain and Ireland. In other words, over two-thirds of the total continental area of the United States, including Alaska, has been at some time during our history public property. In i860 we had a pubhc domain of 1,055,911,288 acres, and in spite of the enormous grants which have been made to railway companies, corporations, and private persons, the United States possessed in 1909 a national estate of 731,354,081 acres.^ The history of the disposal of our great domain forms one of the most striking and important chapters in the history of the United States — a chapter which is unhappily marred by a record of wasteful methods, lack of foresight, political corruption, and fraudulent transactions. This chapter also contains a record of the peaceful conquest and settlement of the Great West ' In addition to the lands already granted to private persons, there were large public domains in most of the territorial additions to the United States. Inasmuch as Texas had organized an independent government and had won recognition as an independent commonwealth before admission to the Union, it had already made provision for the public lands and was allowed to re- tain them. The acquisition of Hawaii, Porto Rico, and the Philippine Islands in 1898 brought very little additional public land to the federal gov- ernment, as most of it had already been granted away to private persons. ^ Insular possessions are not included in this estimate; but Alaska is. Report of the Secretary of the Interior, 1909, p. 7. Of course Alaska has been added since i860. 2D 401 402 American Government and Politics by tens of thousands of hardy pioneers who built their prosperous homes upon the broad acres sold to th^m at a low price by the federal government. In the beginning of our history, Congress made no attempt to dispose of the western lands in small lots to actual homestead- seekers. On the contrary, the government decided to sell the land as expeditiously as possible "for the common benefit of the United States" — that is, to extinguish the pubUc debt; and accordingly large quantities were sold on contract, principally to speculative land companies, which in turn subdivided and sold in small lots. At length, in 1800, the government began a new poHcy of offering for sale on credit portions of the public domain in lots small enough to encourage entry and settlement by home- seekers; and in 1820 a system of cash sales was adopted, and pur- chasers were allowed to buy plots of any size. The RepubHcan party, in its platform of i860, protested against a land poHcy " which regards the settlers as paupers or suppUants for pubUc bounty"; and demanded the passage of a complete and satisfactory homestead measure. In 1862, Congress complied with this demand by passing the Homestead Act, which reserved the arable land for settlers and provided that any head of a family might secure a quarter of a section of land, that is, 160 acres, by residing on it for a period of five years. ^ In spite of these attempts to reserve the pubHc lands for bona- fide home-seekers, enormous areas have been secured by land companies, either by the purchase of the small grants made to private parties or by fraud. "Our public lands, whose highest use is to supply homes for our people," said President Roosevelt, *' have been and still are being taken in great quantities by large private owners to whom home-making is at the very best but a secondary motive, subordinate to the desire for profit. To allow the public lands to be worked by the tenants of rich men for the profit of the landlords, instead of by freeholders for the Hvelihood of their wives and children, is little less than a crime against our people and our institutions. The great central fact of the public land situation ... is that the amount of pubhc land patented ^ This act, however, was only supplementary to the preemption system (1841 to 1 891) according to which the head of a family might enter a quarter of a section by paying $200 and Uving upon it for a period of six months. Under the act of 1862 each homestead-seeker had to pay a fee of $40. National Resources 403 by the government to individuals is increasing out of all propor- tion to the number of new homes." ^ The pubHc lands which have not been granted to land com- panies and to private persons have been disposed of in several ways.^ In the first place, whenever a new state has been admitted to the Union it has received from the federal government a large portion of pubHc domain within its area. Previous to 1850, it was the practice of the federal government to give to each state one thirty-sixth of the public lands within its borders for school purposes; and since 1850 the amount has been doubled.' In i860 Congress granted to each state an amount of land according to its representation in Congress, to be devoted to the support of an agricultural college. In addition to these grants for edu- cational purposes. Congress has given to the various states from time to time large areas to be used in the making of internal im- provements. Finally there are the concessions which have been made to railway corporations. It is estimated that under the various railway acts no less than 155,504,992 acres have been given to railways, and that more than one-half of this amount has been Actually taken up by them. Most of this land, however, has found its way into the hands of homestead-seekers, for it has been the practice of the railways to sell their lands in small amounts at reasonable prices in order to encourage actual settlement. It has been profitable for them to develop population and industries along their Hues; and they have accordingly used their grants for the rapid upbuilding of the West."* While the government makes some distinction between ordi- nary arable lands and the lands which are valuable for timber, stone, and minerals, its policy from the very beginning has sac- rificed the public domain very largely to prospectors and specu- lators. Congress has provided that the timber lands open for ' The Annals of the American Academy of Political and Social Science, Vol. XXXI, pp. 8-^. ^ Large grants were made to the soldiers of the Revolutionary and Mexican wars. 3 The six states admitted in 1890-91 were given considerably more than one-eighteenth of the public lands within their borders. '' Reference: J. B. Sanborn, Congressional Grants of Land in Aid of Rail- ways, University of Wisconsin Publications (Economics), Vol. II, No. 3. 404 American Government and Politics entry must be sold only in small lots to single persons or com- panies for their respective benefit, but as a matter of fact the entries made by private persons rapidly pass into the hands of large timber companies. A bare list of the timber and land frauds which have been unearthed by the government would fill a volume of no mean proportions. Mineral lands have been like- wise disposed of ostensibly to private individuals in small lots, but in actual practice to large corporations. The reckless and fraudulent waste of our rich mineral resources has long been a standing disgrace to the federal government. President Cleveland in his message of 1886 declared that ''the object of the laws was perverted under the system of cash sales from a distribution of lands among the people to an accumulation of land capital by wealthy and speculative persons." Twenty years later, President Roosevelt, in his message of February 3, 1907, called attention to the waste of our mineral resources, and recommended legislation providing for the separation of the title to the surface of the land from the title to the underljdng mineral fuels, in order that the latter may be kept for public benefit, even if the former is sold. In his report for the year 1908, the Secretary of the Interior said: "It is most earnestly to be hoped* that Congress at this session will consider favorably the pending measure which has for its purpose the segregating of the coal from the surface and the sale or lease of the coal in such quanti- ties as will permit its development in accordance with the needs of the country, and in a great measure prevent private interests from either monopolizing or .holding for speculative purposes the great fuel deposits remaining in the pubUc domain. The pending bill provides for alternate methods of sale and lease, so that the system best adapted to any special section of the country may be used." The administration of the public lands is in charge of the com- missioner of the general land office (Interior Department) who supervises their survey and sale. For the purpose of adminis- tration the states and territories having considerable public domain are laid out into districts, in each of which there is a local land office in charge of registers and receivers, who dispose of public lands under the laws and receive the funds accruing from these sales. Under an appropriation of Congress which went into effect on May 27, 1908, the force of special agents in charge National Resources 405 of the public lands was greatly increased for the purpose of more carefully policing the public domain and seeing that fraudulent land transactions were prevented.^ The Conservation Movement Under the historic land poUcy sketched above, little or no thought was taken of the ultimate result, as the nation's heri- tage in lands, forests, and minerals was being bartered away to a considerable extent to shrewd and enterprising fortune hunters — to say nothing of the enormous areas that have been 'actually stolen. It is true that the policy of rapid alienation has been the chief, and to a large extent necessary, factor in the rapid development of the West, but nevertheless the Hon. Theodore Burton spoke correctly when he said in a letter to President Roosevelt in 1907: — Hitherto our national policy has been one of almost unrestricted disposal of natural resources, and this in more lavish measure than in any other nation in the world's history; and this policy of the federal government has been shared by the constituent states. Three con- sequences have ensued: First, unprecedented consumption of natural resources; second, exhaustion of these resources to the extent that a large part of our available public lands have passed into great estates or corporate interests, our forests are so far depleted as to multiply the cost of forest products, and our supplies of coal and iron are so far re- duced as to enhance prices; and third, unequalled opportunity for private monopoly, to the extent that both federal and state sover- eignties have been compelled to enact laws for the protection of the people."^ We have in fact arrived at a point where the exhaustion of some of our important natural resources is approaching, if the old wasteful methods of exploiting them are allowed to continue; and the realization of this fact has made the conservation and right use of our natural opportunities one of the most vital ques- ^ During the fiscal year ending June 30, 1908, a little more than 19,000,000 acres of public lands were entered; the total cash receipts from the disposal of lands during that year were about $12,500,000, which netted the treas- ury a balance of a little more than $10,000,000; during that year also many additional forests were created, making a total forest area of 167,976,886 acres. ^ Proceedings of a Conference of Governors, p. viii (Official Report) . 4o6 American Government and Politics tions to be solved by the present generation. Indeed, as Presi- dent Roosevelt put it, "the conservation of our natural resources and their proper use constitute the fundamental problem which underlies almost every other problem of our national life." ^ This issue was first seriously brought to the attention of the general pubhc by President Roosevelt in his numerous addresses; and a practical step toward the solution of the problem was taken by him in the appointment, in 1907, of the Inland Waterways Commission to investigate and recommend a full and compre- hensive plan for the development and utilization of the water resources of the country. He took the second important step in caUing a Conference of Governors at the Wliite House on May 13-15, 1908.^ At that meeting of state executives, facts regard- ing our natural resources were presented by experts; methods of educating public opinion were considered; and many plans by which conservation could be best accomplished were suggested.^ Soon after the adjournment of this Conference of Governors, President Roosevelt announced the appointment, of a National Conservation Commission for the purpose of making a study of the general problem; and following the lead of the national gov- ernment, many states have taken action toward the investigation and solution of the question of the conservation of their own natural resources. ^ Ibid., p. vi. ^For the recommendations of the conference, see Readings, p. 361. 3 The significance of this first Governors' Conference was not confined to the conservation movement. It was, perhaps, the beginning of a new devel- opment in our political institutions. At all events it was the first step in the organization of the House of Governors, which is now (1910) assuming insti- tutional form. It provided a permanent organization by which the govern- ors themselves can arrange for periodic meetings, and on the call of this organization a second conference was held in Washington, D.C., in January, 1910. This Governors' Conference is, of course, an extra-legal institution and has no power to take any official action binding upon any one. Yet it may have great influence on state legislative and executive policy. The governors exchange ideas on subjects which come up for solution in their respective commonwealths, and get the benefit of one another's experience. The meetings will tend to promote uniformity in state legislation and do away with the unnecessary and inconvenient diversity of state laws. As was said by Governor Hughes of New York, in a speech made before the second conference, the scope of these conferences may embrace three groups of questions: uniform laws, interstate comity, and interchange of state experience. National Resources The Soil 407 The fundamental resource of the country is the soil. It was said by James J. Hill, in an address before the first Conference of Governors, that "nearly 36 per cent of our people are engaged directly in agriculture. But all the rest depend on it. In the last analysis, commerce, manufactures, our home market, every form of activity, run back to the bounty of the earth by which every worker, skilled and unskilled, must be fed, and by which his wages are ultimately paid." ^ While we had at our disposal vast areas of virgin soil, we took it for granted that agriculture could take care of itself and that manufacturing alone needed our best energies and skill. During the pioneer days, the frontiersmen cleared away forests for farms, and after getting what they could out of the land, abandoned it, moved forward, and repeated the process. That the application of science to the abandoned areas would have renewed the bounty of the soil did not occur to the pioneers, and it was only natural that the refinements of agriculture should have been neglected amid the rough struggles of the frontier. As the tide of land-hunting pioneers swept westward it left behind it neglected and abandoned farms. All throughout New England and the eastern states there are deserted farm-houses falling into ruin, and vast areas once under cultivation are being overgrown with scrub. The rough-and-ready single-crop- ping system, the careless provisions for fertilization, the malad- justment in connecting the country with town markets, and the enormous charges for freight and express (due in many instances to watered stocks and monopolies) are conspiring to turn whole states into wildernesses. Society and science must co- operate with private initiative in restoring these regions to fertiUty and productiveness. It is not only the methods of tilling which are causing this decline in fertility. The soil is also being depleted by natural causes, the principal one of which is erosion, or the sweeping away of the fertile surface into streams by means of torrential rains and floods. It is estimated that 1,000,000,000 or more tons of richest soil matter are annually carried into the sea by our * Proceedings of a Conference of Governors, 1908, p. 72. 4o8 American Government and Politics rivers.^ Millions of acres, particularly in the South, have been rendered bare and useless for agriculture largely by this process. One of the principal means of stopping this wastage is the con- servation of forests which help to regulate the flow of water.^ The federal and state governments at present do little directly to aid in preserving and improving the fertiHty of the soil; but the experiments in advanced methods of cultivation carried on by the Department of Agriculture,^ the Experiment Stations, and state agricultural colleges, are doing much to show the farmers how to make the best use of their land and at the same time to conserve it for the use of posterity. Science will become the ser- vant of agriculture as well as of industry. While lending this aid to improving the methods of agriculture, the federal government is widening the public domain by re- claiming arid and semi-arid lands through gigantic irrigation undertakings. The Newlands Act of June 17, 1902,'* authorized the Secretary of the Interior to undertake the work of reclama- tion on a large scale. The fund for the work consists of the pro- ceeds from the sale of the public lands in certain states. The lands made available by irrigation are sold, in small tracts, to actual settlers, who pay the price in annual instalments, thus restoring to the reclamation fund the money that is laid out. Up to June 30, 1908, the sum of $50,661,549.27 had been paid into the fund from all sources.^ The work is done by the Reclamation Service, which is in the Department of the Interior. Reservoirs, drains, canals, etc., are constructed by the government,® and from them the settlers can draw water by means of ditches to irrigate their farms. A large number of projects have been undertaken, some of them requiring engineering skill of a high order. One of the most in- teresting of these is the Shoshone project in Wyoming, which con- templates the erection of a dam over 300 feet high.^ The first ' Proceedings of a Conference of Governors, 1908, p. 78. ^Readings, p. 365. 3 For the work of this important Department see Reinsch, Readings, pp. 401 ff. "•For speeches in Congress on this act, see Readings, pp. 66, 371. ^Report of the Secretary of the Interior, 1909, p. 21. ' Largely by contract. ^The Annals of the American Academy of Political and Social Science, Vol. XXXI, pp. 203-218. National Resources 409 six years of the reclamation work resulted in making 767,958 acres fit for settlement, out of which 424,549 acres were actually irri- gated.^ Some of the states are also carrying on similar work. For example, Idaho has undertaken stupendous projects. It has constructed one of the largest irrigation canals in the world and rendered arable more than 300,000 acres of barren waste. It has entered into contracts for the construction of large storage reservoirs to control flood waters. Utah is financing a number of reclamation projects. Missouri and Florida are carrying on large drainage operations, while New Jersey is ditching and fill- ing in marsh lands. Mineral Resources Among the most valuable of the natural resources and the most necessary in the present stage of civilization are the minerals. Coal and iron form the foundation of our industrial prosperity. In one respect, the minerals differ greatly in char- acter from all other natural resources; they cannot be improved or renewed. This makes a proper use of them all the more imperative. It has been estimated that our original heritage of coal was about 2,500,000,000,000 tons. Authorities differ on how long it will be before the supply is exhausted, the common prediction being about two hundred years. There is always a possibility, of course, that new and unexpected deposits will be discovered. Still, the great increase of consumption during the last few years,^ makes the problem of conserving the coal deposits for future generations an important one. The needless waste of our coal supply is due principally to two causes. The first is the wasteful methods of mining, which leave from 40 per cent to 70 per cent of the fuel in the mines, a large part of it beyond recovery. The second cause is due to the imperfect methods of combustion. It is estimated that about 90 per cent of the potential energy of the coal goes to waste.^ Our second great mineral resource is iron. The present stock * Report of the Secretary of the Interior, 1909, p. 24. ^Readings, p. 371- 3 These, of course, leave out of account the social wastes due to competition. See Reeve, The Cost of Competition. 410 American Government and Politics of iron ore in the United States is reckoned at about 10,000,000,- 000 tons. Mr. Andrew Carnegie has estimated that the known supply will be exhausted before 1940.^ Other estimates are not as pessimistic, it being generally agreed that the supply will last until the end of the century. Moreover, it is Ukely that additional ore will be discovered. Nevertheless, even looking at it from the most optimistic standpoint, the conservation of the supply of iron ore is a practical question, particularly when we bear in mind the fact that about 80 per cent of the known iron ore deposits in this country are controlled by the United States Steel Corporation. Another important mineral resource is natural gas. An absolutely unnecessary waste of gas is found in uncontrolled wtUs and leaking pipe lines. About 1,000,000,000 cubic feet are lost daily in the United States through these and other causes. The legislature of Indiana has passed a statute prohibit- ing the waste of natural gas through negligence, and all gas- producing states should follow her example. The national government can do nothing to conserve the mineral resources that are now in private hands,- without modifying its traditional poHcy with regard to the sacredness of private rights, but an enormous amount of mineral land is found in the pubhc domain, and this may be protected without coming into conflict with constitutional limitations. During the last few years, several measures have been initiated to safe- guard pubhc property in mineral lands.^ The first step is to withdraw these lands from entry and sale and properly classify them. The next problem is how to provide for their right use. Of the various methods of reform suggested, perhaps the best, at least for the present, is the proposal that the government should cease to grant mineral lands in perpetuity, and, instead, lease them for terms of years at a proper rental, requiring the deposits to be worked in strict conformity with government regulations and under the supervision of official inspectors, ^Proceedings of a Conference of Governors, 1908, p. 17. ^ During the great period of railroad construction many coal and iron lands were granted to railways. Enormous amounts have been sold to in- dividuals at ridiculously low prices. Huge tracts have been obtained by fraud. Eight railway systems now control the hard coal fields. 3 Readings, p. 368. National Resources 411 so as to prevent monopoly, ensure proper mining methods, and check waste.^ Forests In the forests we have a natural resource that is highly valuable, not only for their direct contribution to the welfare of the nation, but also for their indirect bearing on the preservation of some other resources, — the soil, water power, and waterways.^ The primary use made of the forests is, of course, for the lumber supply, which is as necessary to us in our daily life as the various metals and minerals. But much more than that, — the forests are necessary to preserve the fertility of the soil and to aid in the maintenance of natural waterways. They help to conserve the soil by absorbing moisture and compelling it to percolate under the ground instead of running off the surface. Further- more, they check the water from rushing down in torrential streams, and thus prevent soil waste. They are essential for the preservation of water power and the development of water- ways because they act as natural reservoirs and regulate the flow. By holding back moisture and giving it out gradually, they help to maintain a stable channel, thus preventing the drying up of streams in seasons of drought, and also checking floods at other times. That there is need of calling a halt to the wasteful destructign of the forests is indicated by the fact that we are consuming them three times as fast as they are being reproduced.' It was said by President Roosevelt that "some of the richest timber lands of this continent have already been destroyed, and not replaced, and other vast areas are on the verge of destruction." ^ For instance it has been estimated that at the present rate of con- sumption the forests of New York State (except those on state land) will be absolutely cut away in about twenty years, and that the privately owned forests of California will be exhausted in about thirty-five years. ' Some of the states, as Utah, also own mineral lands. They too, are be- ginning to see the necessity of preserving them and are ceasing to sell them at ruinously low figures. The adoption of a leasing system by states owning mineral lands has also been advocated. ^ Readings, p. 364. 'The Annals of the American Academy of Political and Social Science, Vol. XXXI, p. 8. 412- American Government ♦and Politics There are a number of causes of forest waste. A tremendous amount of timber is lost by forest fires which are caused largely by carelessness and could be often prevented by efficient govern- ment supervision. Another source of waste is the reckless cutting of young trees. Finally, the methods generally employed in lumbering are unnecessarily destructive, for about 20 per cent of the low-grade logs are left in the woods to rot or be burned. The private owner, usually intent on immediate profits, is sel- dom long-sighted enough to adopt a poHcy of conservation, the rewards for which he cannot expect to live to reap. The national government is a large proprietor of forests. About 22 per cent of our forest area is to be found on the public domain, and it is the duty of the government to pursue proper methods of conservation in so far as those timber lands are concerned.^ The same short-sightedness that we have described in con- nection with the rest of the national domain has been found in the past in the treatment of pubHc forests. Large areas have been permitted to get into private hands through the sheer un- willingness of Congress to face the situation. Under the so-called timber and stone acts, — the repeal of which is being strongly urged, — 5,000,000 acres of timber land on the public domain were sold from 1901 to 1906, to private individuals, for $2.50 an acre, or for less than $13,000,000, when their actual value was more than $100,000,000.^ Of late years, however, large tracts of forest lands have been withdrawn from entry and erected into National Forests. They have been placed under the jurisdiction of the Forest Service, which is in the Department of Agriculture. These forests cannot be indiscriminately cut, and they are properly cultivated and cared for. In addition to this, many forest fires have been prevented by the efficient work of the Forest Service. Much is also being done by the state governments to conserve our forest resources. State forest reserves are being created, trees planted, and forest fires prevented. New York is taking the lead in this direction. It maintains forest reserves contain- ing over a milUon and one half acres, under the jurisdiction of ^Readings, p. 366. ^ Proceedings of a Conference of Governors, 1908, p. 187. National Resources 413 the Forest, Fish, and Game Commissioner, and the preservation of these forests is provided for in the state constitution. A new reservation is being established along the western shore of the Hudson, in conjunction with the state of New Jersey. In addition, the state is carrying on the work of reforestation, and plants thousands of trees every year.^ Another very important activity carried on by the states in this connection is the prevention of forest fires. Thus Maine has a force of forest fire wardens engaged in the work; a similar service is found in Washington; and Alabama makes it a criminal offence carelessly to set fire to timber. Water Power The threatened exhaustion of our coal supply makes it par- ticularly necessary to make proper use of another source of power, namely, water. In addition to its being a possible substitute for coal, water power is particularly important in places that are far from the mining regions and where transportation expenses are high. The development of water power has permitted the growth of industry in the South, and has helped to make the prosperity of many cities in the Northwest. It has become especially valuable with the increased use of electricity, as the power can now be transmitted fifty or a hundred miles. The upper basins of the Mississippi and the Missouri valleys and the Southern Appalachian highlands contain important power sites. The rivers of northern and western New York can also furnish water power of great value, and enormous possibilities are to be found in the far West. It has been estimated that the total water power in the United States exceeds 30,000,000 horsepower, which can probably be increased to 150,000,000 horsepower by the construction of reservoirs.^ The most important thing that the government can do for the proper conservation of water power is to prevent the sites from getting into the hands of private monopolies and to preserve the 'Large forest reserves have been acquired by Pennsylvania, which is also carrying on the work of reforestation. Wisconsin owns forest reserves, which are under the care of a Forestry Commission, and large tracts of timber lands are owned by the state of Washington. ^ Proceedings of a Conference of Governors^ 1908, p. 294. 414 American Government and Politics use of them for the benefit of the whole people. The first step in this direction is to withdraw from entry the water power sites on the public domain, and to a large extent this has already been done during the past few years. The Geological Survey is making an investigation of the water resources, and more sites will be withdrawn as the information is being gathered. The next step is to provide for the proper use of the water power, and within recent years a strong demand has arisen that the govern- ment should cease to grant water rights in perpetuity, and should reserve title to the lands and merely grant the right to develop and use the power for a term of years, charging a proper fee for the privilege. Because of its power over navigation. Congress has a certain amount of control over water power sites in all navigable rivers. Up to a few years ago rights to erect dams were being granted by Congress at random and in perpetuity, but President Roosevelt checked this poHcy to some extent, and laid down the doctrine that such rights should be granted only for a term of years at rentals proportioned to their true values. The national government can also do much for the actual development of water power. Thus the conservation of forests will even the flow of rivers in wet and dry seasons, and thereby enlarge the possibihties of using the streams. The state governments have great opportunities for helping in the preservation and development of water power, but they are only beginning to take advantage of them. In New York, the State Water Supply Commission has made a critical investi- gation of the water powers of the state and a careful study of the possibilities of utilizing them. It has recommended the construction of reservoirs for the storage of water, and the state is to enter upon the work as soon as the requisite authorization for the issue of bonds can be secured. The state is to own the reservoirs and lease the power to the highest bidder.* Wisconsin has also undertaken similar work. In that state, however, the construction is being conducted by a private company under state supervision.- The government is much better qualified to develop our power ^ Review of Reviews, Vol. XLI, pp. 775. 2 Review of Reviews, Vol. XXXIX, p. 60. National Resources 41^ resources than any private individual or corporation. It can provide for comprehensive and coordinated action, having as its aim ultimate development rather than immediate profits. By doing the work it will confer upon the people many benefits besides the mitigation of floods and the deepening of navigable channels. Properly managed they should yield great revenues to be employed for social purposes. Waterways During the early period of our history, previous to the develop- ment of railroads, water transportation was of special importance. This led to the construction of numerous canals by the state governments and private companies. But after 1850 water routes fell into disuse, and transportation by rail supplanted transportation by water. During the last decade, however, the problem of transportation has taken on a new aspect. At the present time our commerce is developing at a much greater rate than our railroad facihties, so that the proper care and utilization of our water routes has become a pressing need. Moreover, the presence of navigable rivers and canals acts as a regulator of railroad freight rates through competition. Finally water carriage is much cheaper than transportation by rail. The waterways of the United States have an aggregate length of between 55,000 and 60,000 miles, but only about half of the mileage is at present used for navigation. It is now proposed to render available new routes and to improve the old ones. Congress has done much in the past in deepening rivers and harbors, but its work has been desultory and unsystematic, largely with a view to local and selfish interests.^ Thus far there has been a lack of any definite and continuous plan ; many sepa- rate projects have been undertaken and never carried to comple- tion and vast sums have been spent on projects purely local in character, which are of but little value to the nation at large. The total amount appropriated by Congress for harbors and waterways from 1802, the date of the earliest appropriation, up to and including 1890 was $214,039,886. During the sixteen years from 1891 to 1906 the amount was $301,447,046. 'This, has been a great source of jobbery and log-rolling. 4i6 American Government and Politics During the last few years it has become recognized that com- paratively Httle of lasting value can be accompUshed unless a permanent plan is formulated, and purely local projects are disregarded. No poHcy has as yet been finally determined upon. Several gigantic works are being urged. One of these is an in- land waterway along the Atlantic from Boston to Jacksonville, Florida, and then across Florida into the Gulf of Mexico, so that ships can avoid all dangers of the open ocean. Another scheme is that of a Lakes-to-the-Gulf Deep Waterway. It is proposed to link Lake Michigan with the Gulf of Mexico by a deep channel. The scheme, consists of "connecting the Lake with the Mississippi River by means of a canal and then deepening the river. It is also proposed to deepen the Missouri River and make it navigable to the three forks. The deepening of the Columbia River and many other smaller projects are being urged. ^ In order to finance the enterprises it has been suggested that a permanent fund be created by the sale of bonds, so that the work may not be dependent on the will of each Congress. Because of the enormous cost involved. President Roosevelt has proposed that where the immediately abutting land is markedly benefited, the beneficiaries should pay a portion of the expenses. Unless the projects are properly safeguarded, the government will do the work, and a relatively few private parties will, as is too often the case, derive the benefits. ^ Some work on waterways has been done by the states. The most im- portant of the state canals is the Erie Canal in New York, which is the con- necting link between the Great Lakes and the Atlantic Ocean. The state is at present engaged in deepening the canal. CHAPTER XXI THE GOVERNMENT OF TERRITORIES The Power of the Federal Government The Constitution of the United States makes no express provision for the acquisition of territory, and at the time of the Louisiana purchase the question was raised whether the federal government had the power to buy that domain. President Jefferson at first doubted the constitutionaHty of the purchase, and in the summer of 1803 he wrote to Mr. John C. Brecken- ridge concerning the subject: "The executive in seizing the fugitive occurrence which so much advances the good of their country have done an act beyond the Constitution. The legis- lature, in casting behind them metaphysical subtleties and risk- ing themselves like faithful servants, must ratify and pay for it, and throw themselves on their country for doing for them unauthorized what we know they would have done for themselves had they been in a situation to do it." ^ However, men who took a broader view of the matter claimed that there was full constitutional warrant for the action, inas- much as the federal government enjoyed the undoubted right to acquire territory under the treaty-making power. Even Jefferson finally gave up the idea that it was necessary to amend the Constitution in order to acquire Louisiana, and later the N Supreme Court held that, "the Constitution confers absolutely \ on the government of the Union the power of making war and of making treaties; consequently that the government possesses the power of acquiring territory by conquest or by treaty." * Congress governs federal territory under that clause of the Constitution giving it power to dispose of and make all needful rules and regulations respecting the territory or other property 1 Works (Ford ed.), Vol. IV, p. 500. 'American Insurance Co. v. Canter, i Peters, 511. 2E 417 41 8 American Government and Politics belonging to the United States. The conflict over the powers of Congress under this provision furnishes a long and stirring chapter in the constitutional history of the United States. Dur- ing the first half of the nineteenth century, this conflict was waged over the question as to whether Congress could prohibit slavery in the territories. The pro-slavery wing of the Democratic party contended that the national legislature had no such power, and radical Republicans, on the other hand, maintained that it even had no right to permit slavery in the territories. The whole matter of the power of Congress over territories was reopened in 1898, with the acquisition of our insular posses- sions, in the form of the somewhat striking question, "Does the Constitution follow the Flag?" The answer to this proposition is simple: the federal government cannot go anywhere or do anything except under some power conferred by the Constitu- tion. But this leaves unsettled the problem of what provisions of the Constitution control the federal authorities in the govern- ment of territories. It requires no very subtle analysis to dis- cover that certain clauses of that instrument are designed to limit the federal government within the states; but do all the provisions in behalf of private rights contained in the original Constitution, and especially in the first ten amendments,^ run into the territories and control the federal government there? In his famous opinion in the Dred Scott case. Chief Justice Taney declared that they did, and hence that slavery could not be prohibited there because that would be depriving the slave- owner of his property without due process of law — a gross violation of the private rights guaranteed under the Constitution. Many years later the Supreme Court held that the Seventh Amendment required a unanimous verdict in common law trials, and controlled the legislation of Congress and territorial as- semblies.^. A new aspect was given to this question when the Hawaiian Islands and the Philippines were acquired, because it was ob- viously impossible to apply there all of the elaborate principles of Anglo-Saxon jurisprudence laid down in the first ten amend- ments to the federal Constitution. In a series of Supreme Court ^ See Readings, pp. 134-137. ^Springville v. Thomas, 166 U. S. R., 707, (1897). The Government of Territories 419 decisions/ known as the "Insular Case s." many technical points are involved, but the upshot of them all is that the Constitution may be di\dded into two parts, fundamental and formal; that only the fundamental parts control the federal authorities in the government of territories; and that the Supreme Court will determine, from time to time, as specific cases arise, what parts of the federal Constitution are fundamental and what parts are formal.^ Thus we may say, with a judge of the United States circuit court of appeals for California, that, for practical purposes, "the territories of the United States are entirely subject to the legislative authority of Congress. They are not organized under the Constitution, nor subject to its complex distribution of powers of government as the organic law, but are the creation exclusively of the legislative department and subject to its supervision and control. The United States, having rightfully acquired the territory and having become the only government which can impose laws upon them, has the entire domain and sovereignty, national and municipal, federal and state. It may legislate in accordance with the special needs of each locality, and vary its regulations to meet the circumstances of the people." ^ Under this liberal interpretation of the Constitution, Congress may estabhsh and maintain practically any form of govern- ment in the insular territories which does not violate too grossly the political traditions of the American people. In view of the fact that, during the campaigns of 1900 and 1904, the opponents of the American imperiahst policy demanded for the Porto Ricans and Fihpinos either complete freedom or at least "self-government on the Principles of the Declaration of Independence," it seems worth while to examine briefly at this point the historical poUcy of the United States in the ad- ministration of the territories. The famous ordinance of 1787 for the government of the Northwest Territory provided that ^The following cases relate especially to the position of the new terri- tories in our political system: Downs z). Bidwell, 182 U. S. R., 244 (1900); Dooley v. the United States, ibid., 222; Dooley v. the United States, 183 U. S. R., 151 (1901); Pepke v. the United States, ibid.; Hawaii v. Mankichi, 190 U. S. R., 197; Dorr v. the United States, 195 U. S. R., 138; DeLinia,^. Bidwell, 182 U. S. R., 540 (1900). 2 See Readings, p. 375, for a succinct statement by Justice Day of the Supreme Court of the United States. ' Willoughby, Terrilories and Dependencies of the United States, p. 22. 420 American Government and Politics Congress should appoint the governor, and fixed his property quaUfications at a freehold estate of a thousand acres of land; the secretary and judges were Hkewise appointed by Congress and required to have certain property quaUfications. For the time being, the governor and judges were to make the civil and criminal laws for the territory, subject to the approval of Con- gress. It was further provided that when the territory should have 5000 free male inhabitants, there should be instituted a representative assembly composed of delegates, each owning 200 acres of land, chosen by the voters of the territory, each possessing a freehold of 50 acres. To this representative assembly was added a legislative council composed of five members, (each with the property qualification of 500 acres of land free- hold) chosen by Congress out of ten persons nominated by the representative branch. Thus in the beginning the federal government did not even give to territories inhabited principally by white citizens of the United States that complete autonomy and democratic form of government which many anti-imperialists would have conferred upon the insular possessions almost at the very outset of our administration. This policy of keeping a firm control on the territories, with more or less modification, has been continued throughout our history. When the territory of Orleans was organized, in 1804, the executive power was vested in a governor appointed by the President and Senate, and the legislative power was given to the governor and a legislative council consisting of "thirteen of the most fit and discreet persons of the territory appointed annually by the President of the United States from persons holding real estate." It was not until the western territories were fairly well settled and somewhat experienced in the conduct of their own political affairs that they were given large powers of self-government on the basis of a widely extended franchise.^ The Government of Territories I. At the present time the territories of the United States fall into three groups, the first of which embraces New Mexico, Arizona, and Hawaii, each regularly organized according to those principles which have been applied as the continental do- ^ Willoughby, Territories and Depettdencies of the United States, pp. 27-52. The Government of Territories 421 main of the United States has been developed. Arizona and New Mexico ^ each has a governor, appointed by the President and Senate for a term of four years and enjoying the usual powers of a commonwealth governor. He is charged with the faithful execution of the laws; he is commander-in-chief of the militia; he has the power of pardon and reprieve; and he may veto bills passed by the territorial legislature subject to the ordinary rule of repassage by two- thirds vote; he may call extra sessions of the legislature on approval of the President. ^ The supreme judicial power is vested in a supreme court composed of a chief justice and two associate justices appointed by the President and Senate for a term of four years. The legislative power is vested in an assembly of two houses, the members of which are chosen on district tickets under francliise so broad as to include substantially all males above the age of twenty-one. The powers of the territorial legislature and its mode of procedure are in many respects restricted b] the statutes of the United States, but they resemble, in general, those of ordinary state legislatures.^ The Hawaiian Islands were annexed by a joint resolution of Congress approved July 7, 1898; and their administration is based on the organic act of April 30, 1900, which erected them into a territory and created a complete system of government, going even into greater detail than in the case of Arizona and New Mexico. The provisions of the Constitution and laws of the United States, applicable to local conditions, were extended to Hawaii; and American citizenship was conferred upon all per- sons who were "citizens of the republic of Hawaii on August 12, 1898." The governor and secretary of Hawaii are appointed by the President and Senate. The legislature consists of a senate and a house of representatives, and the members of each are elected by popular vote. Every voter must be a male citizen of the United States twenty-one years of age and a resident of the territory of not less than one year's standing; he must be ^ The admission of these territories as states is now (February, 1910) pend- ing in Congress. - The governor is assisted by a secretary appointed by the President and Senate. 3 Willoughby, Territories and Dependencies, pp. 55 ff. Each territory has a delegate in Congress who may speak but not vote. 422 American Government and Politics duly registered and must be able to read, write, and speak either the English or Hawaiian language/ II. The second group of territories includes those that are not fully "organized," but at the same time have legislative assemblies containing representative elements, namely Porto Rico and the Philippines. The possession of Porto Rico by the United States dates from the raising of the American flag on that island in July, 1898. For almost two years the new domain was governed under military authority, but on May i, 1900, the organic act of Congress erecting civil government in the island was approved by the President.^ This act did not confer citizenship upon the inhabitants, but merely provided that they should be deemed citizens of Porto Rico and as such entitled to the protection of the United States. In this regard the Porto Ricans occupy a peculiar position; they owe permanent allegiance to the United States, but they are not American citizens; neither are they aliens, at least in the meaning of the immigrant act of 1891.^ The chief executive officer of Porto Rico is the governor, who is appointed by the President and Senate of the United States for a term of four years."^ There are also six executive officers, — secretary, attorney-general, treasurer, auditor, commissioner of the interior, and commissioner of education — appointed in the same manner as the governor. They have double duties to perform; on the one hand they have charge of important administrative functions and constitute a majority in the ad- visory council to the governor; and on the other hand they are members of the upper house of the Porto Rican legislature. Under the organic act, the legislature consists of two houses. The upper house, or executive council, is composed, as we have seen, of the six executive oflacials and five other persons "of good repute" appointed by the President and Senate of the United States. Local representation in this body is secured ' This provision excludes most of the Chinese and Japanese inhabitants of the island, and since there is a decline in the number of natives, the political power is passing into the hands of the English-speaking inhabitants. Wil- loughby, Territories and Dependencies, p. 65. 2 For an extract, Readings, p. 388. ^ Gonzales v. Williams, 192 U. S. R., i. ^ The'supreme court is composed of five judges, likewise appointed by the President and Senate, and holding office during good behavior. The Government of Territories 423 by the provision that at least five members of the council must be native inhabitants of the island. The lower house of the legislature consists of thirty-five members, elected biennially under a franchise which gives the right to vote to practically every adult male who has satisfied the residence requirements.^ Owing to the practice of conferring the six executive offices and the office of the governor upon citizens of the United States, the control of legislative as well as executive matters has passed largely out of the hands of natives; and this has been the source of considerable friction between the representative and the appointive branches of the legislature. In 190S the refusal of the executive council to approve certain legislative projects adopted by the lower house so incensed that body that it attempted to block the budget and thus force a deadlock in the govern- ment. The dispute was carried to Washington, in 1900, and made the subject of special consideration by the Cabinet. The whole matter was then referred to Congress, and a law was passed providing that in case the lower house refused to pass the budget, the financial arrangements of the preceding year should be continued. The problem of goverm'ng the Philippine Islands is infinitely more complicated than that of governing Porto Rico.- The Philippine archipelago embraces no less than 3 141 islands and islets, among which Luzon, Mindanao, Samar, Negros, Panay, and Mindoro are the most important. In March, 1903, the total population amounted to 7,635,426, of which 461,740 were classified as "wild." There are representatives of about thirty different tribes, speaking as many different dialects.^ The civilized inhabit- ants of the islands are nearly all adherents of the Catholic faith, but they range in culture from educated and wealthy Spaniards to poor and wretched natives. It is small wonder, therefore, *that the Congress has had great difficulty in devising a system of government that will meet the needs and aspirations of the proud and independent elements of the population, and at the same time guarantee security of life and property throughout the whole archipelago. ' It was provided by law that after July i, 1906, no new voter should be added to the registration list unless he could read and write. 2 For American policy in the Philippines, see Readings, p. 380. ^ Census of the Philippine Islands^ Vol. II, pp. 14-16, 424 American Government and Politics The Philippines were acquired under the treaty with Spain. The protocol suspending hostilities with that country provided that the United States should hold Manila pending the conclusion of a treaty of peace which should determine the disposition and government of the islands. The treaty, duly signed at Paris on December lo, 1898, contained the definite transfer of the archi- pelago to the United States, leaving the status of the islands to be determined by Congress. The development of American government in the Philippines falls into three stages. ( i ) In the beginning, a considerable portion of the inhabitants were in revolt against American rule, and the islands were governed by the President under military authority. In January, 1899, a commission was appointed,^ to act in conjimc- tion with Admiral Dewey and General Otis in extending American authority throughout the PhiHppines, and to investigate the whole problem of government there.^ (2) On receiving the recommenda- tions of this first commission, the President appointed, in March, 1900, a civil commission, with Mr. Taft at the head, to continue the work of establishing civil government which had already been begun by the military ofl&cers ; and, in 1901, the President trans- ferred from the military governor to the president of this com- mission all civil powers of the executive branch of the government in the provinces in which tranquillity was restored. Under this order, Mr. Taft was made civil governor of the Philippine Islands. (3) At length, in 1902, Congress passed an organic act for the Philippines, providing, among other things, that after the comple- tion of the census and the pacification of the islands a legislative assembly should be erected. The last stage in the construction of the Philippine government was reached on October 16, 1907, when Mr. Taft, then on his celebrated tour around the world, opened at Manila the first representative assembly elected in the islands under the authority of the United States.^ Under the system now in force the executive government of the Philippine Islands is vested in a commission of nine members, ^ Composed of Dr. Jacob Gould Shurman, President of Cornell University, the Honorable Charles Denby, one time minister of the United States to China, and Professor Dean C. Worcester of the University of Michigan. ^ The two reports of this commission, November 2, 1899, and December 31, 1900, are a veritable mine of information on Philippine conditions. ^ Readings, p. ^SS' The Government of Territories 425 including' the governor, — five Americans and four Filipinos, appointed by the President and Senate of the United States. The legislature consists of the Philippine commission, which acts as an upper house, and an assembly elected by the voters of those portions of the islands not inhabited by Moros or other non-Christian tribes. The franchise for voting is limited by somewhat complicated qualifications: every voter must take an oath of allegiance, and, among other things, he must be a property- owner, or a tax-payer, or able to read, write, and speak English or Spanish. Ill . A third group of territories of the United States is composed of those which are governed directly by federal officers without the intervention of a legislative assembly in any form. It in- cludes Alaska, purchased from Russia in 1867, Guam, secured by the Spanish treaty in 1.898, Tutuila and islets, acquired by settle- ment with England and Germany in 1899, and the Panama Canal Zone, obtained by a treaty with the repubhc of Panama in 1904.* The chief executive of Alaska is the governor, appointed by the President and Senate for a term of four years; he is charged with supervising the interests of the United States government in the district; he sees that the laws of Congress are enforced; grants reprieves pending the action of the President; he is commander- in-chief of the militia, and reports annually to the President through the Secretary of the Interior. The governor is assisted by a surveyor-general (likewise appointed by the President for a term of four years), who acts as secretary of the territory. Civil and penal codes and codes of procedure were adopted for Alaska by Congress in 1 899-1 900. The codes also provide for the organization of municipal government, the establish- ment of schools, and the raising of revenues. The homestead laws have been extended to that territory, giving actual settlers the right to enter 320 acres of land each. The settlement of Alaska, however, proceeds very slowly, . for according to the Report of 1908 only 439 homesteads had been taken up during the preceding fiscal year, and the entire population was estimated at only 31,000 permanent white settlers, 7000 transients em- * The Wake Island, Midway or Brooks Island, Rowland and Baker Island and the Guano Islands, having few or no inhabitants, are not under any organized form of government. 426 American Government and Politics ployed in mines, canneries, and railway camps, and about 35,000 natives. The government of the Panama Canal Zone is vested in the President by an Act of Congress authorizing him to legislate for that district. An executive order of 1907 gave the chief adminis- trative authority in the Zone to the chairman of the Isthmian Canal Commission. This officer, in turn, assigned it to one of the commissioners, who now bears the title of head of the department of civil administration, and acts as governor.^ The legislative authority conferred upon the President was vested by him in the commission, which now makes laws and ordinances for the district, subject toHhe approval of the Secretary of War. The commis- sion consists of seven members, including the chairman and chief engineer and the secretary, all appointed by the President and Senate. It has charge of the construction of the canal from the Caribbean Sea to the Pacific Ocean, a distance of about fifty miles, and is expected to finish the gigantic undertaking about 19 14. The entire civil government of the Zone, and the construction of the canal as well, are placed under the general supervision of the War Department, to which the commission makes an annual report." The District of Columbia, in area about seventy square miles, was accepted, as the seat of the federal government, from Mary- land by Congress in 1790.^ Several experiments in the govern- ment of the municipality by mayor and council were tried, but none of them proved successful. At last, in 1874, Congress made a radical departure in the government of the city by passing an act destroying the last vestige of popular representation.'' The legisla- ^ He has under him police, revenue, customs, fire, public works, and edu- cation departments. ^ The government of Samoa is in the hands of a naval officer stationed at Pago Pago on the island of Tutuila; this officer has full executive and legis- lative authority. Guam is likewise governed by a naval officer in charge of the naval station. The commandant of each of these posts reports annually to the Secretary of the Navy. 3 The district was originally ten miles square, lying on both sides of the Potomac River and including a small area granted by Virginia, but in 1846 the Virginia portion was returned to that state. The seat of the federal govern- ment was moved to Washington in 1800. * The problem of negro suffrage was prominent in the District politics under an elective government, and was largely responsible for the drastic action of Congress in abolishing the council altogether. As a result the entire population is now disfranchised. The Government of Territories 427 live powers of the District are now assumed by Congress, which has by rule set aside certain days to be devoted to the business of the District. The executive power is given to a board of three com- missioners — two civilians and one mihtary officer — appointed by the President and Senate. This board enjoys not only large administrative powers, but also makes ordinances relating to public safety, health, and welfare. • The island of Cuba, while it may not be regarded as a depend- ency, is under the protection of the United States. In the joint resolution of Congress demanding the withdrawal of Spain in 1898, ^ it was specifically stated tint the United States disclaimed any intention of exercising sovereignty, jurisdiction, or control over the island except for the pacification thereof; and it was furthermore asserted that when that task was accomplished the government of the island would be left to the people. However, in 1901, a provision, known as the "Piatt Amendment," was in- corporated in the army appropriation act, which directed the President to turn the control of Cuba over to the inhabitants as soon as they established a regular government and expressly recog- nized in their constitution the protection of the United States and the right of American intervention under certain circumstances.^ In the summer of 1906, an armed uprising was fomented by liscontented natives, and after repeated appeals from American citizens in Cuba, the federal government decided to intervene. A di\dsion of the army was sent to the island, and the entire administration was assumed by Governor Magoon representing the authority of the United States. American occupation lasted until January, 1909, when the government was turned over to the native president and congress, duly elected in the preceding November. * Readings, p. 378. 'See Readings, p. 379, for the circumstances. PART III STATE GOVERNMENT CHAPTER XXII THE CONSTITUTIONAL BASIS OF STATE GOVERNMENT Hamilton believed that contests between the state and federal governments would generally end in favor of the former, and that there was a greater probability of " encroachment by the members upon the federal head than by the federal head upon the mem- bers." Jefferson looked upon the national government as princi- pally the agent of the states in the conduct of their foreign affairs; and in the early days of the repubHc it was quite common for men in politics to leave prominent places in the federal govern- ment to accept high offices in their respective commonwealths. When Mr. Jay, who had resigned the Chief Justiceship of the Supreme Court, was tendered a reappointment by President Adams, he rephed: "I left the bench perfectly convinced that under a system so defective it would not obtain the energy, weight, and dignity which was essential to its affording due support to the national government; nor acquire the public confidence and re- spect which, as the last resort of the justice of the nation, it should possess." Obviously, fimdamental changes have occurred in our federal system since Jay wrote these depreciatory words concerning the dig- nity of the federal judiciary. The Civil War and the adoption of the Thirteenth, Fourteenth, and Fifteenth Amendments have taken away from the states an enormous domain of power which they previously enjoyed. Our national government has risen in popular esteem; statesmen now look upon local politics princi- pally as a means of advancement to federal honors; the growth 428 The Constitutional Basis of State Government 429 of national party organization has subordinated state to national politics, and the failure of state governments to remedy many of the abuses connected with trusts and corporations has led the people to turn to the national government for relief. The su- premacy of federal law^ and the growing practice of corporations and individuals to resort, whenever possible, to federal tribunals in the protection of private property rights, have given a weight to the national government which its founders had slight reason to suspect it would ever secure. Whatever view we may take of the old struggle over states' rights, the fact remains that in law and in political consciousness the nation is now first. The national government is not a light superstructure resting upon the soUd foundations of state governments;^ the national Con- stitution furnishes the broad legal basis for the whole system, for it is within the sphere marked out by that Constitution and guarded by the federal judiciary that commonwealth govern- ments must operate.^ * See Readings, p. 140. ^ It will be remembered that thirty-three of the forty-six commonwealths composing the Union have been admitted by the national government, some- times with conditions. ^ A clear idea of the concrete nature of this control over state activities by the federal courts may be gained from the following summary by Pro- fessor R. B. Scott: "It has been held that state boards and commissions, attorneys-general and prosecuting attorneys, may be enjoined from putting into effect a schedule of railroad rates, or gas, telegraph, or stockyard rates, alleged to be invalid as working a deprivation of property without due pro- cess of law or otherwise violating the federal Constitution. State officers have been restrained from levying taxes on the ground^that they were attempt- ing to act without lawful authority. A cancellation'or revocation of Ucense to do corporate business because of the violation of state laws has been enjoined. The enforcement of state ordinances has been prevented and seizure of property under a dispensary law has been restrained. . . . Fur- thermore it is to be noted that in addition to the cases where purely negative control has been exercised, there are instances of the grant of positive reme- dies by the federal courts against state and local officers ; e.g., in compelling through writ of mandamus the levy of a tax' to pay a judgment on township bonds. These cases have been confined to no locality; North and South, East and West have felt the heavy hand of the national government. Nor has such control been restricted to a single field of state law; criminal as well as civil liability to the state has been involved." "The Increased Control of State Activities by the Federal Courts," in the Political Science Review for August, 1909. 430 American Government and Politics Fundamental Constitutional Limitations on State Governments The boundaries and nature of this sphere of power reserved to the several commonwealths are to be imderstood by an exami- nation of the fundamental limitations on state governments laid down in the federal Constitution/ and also the chief judicial deci- sions interpreting them in practice. 1. The first groups of limitations relate to the taxing power of the state. States cannot lay and collect imposts and duties upon exports and imports — that is, upon articles in the hands of any person who sends them to, or receives them from, foreign countries directly, — except to defray expenses incurred in the execution of inspection laws, and then only with the consent of Congress. A duty upon imports, said the Supreme Court in the case of Brown v. Maryland,^ is not merely a duty on the act of importa- tion, but it is a. duty on the thing imported as well. "When the importer has so acted upon the thing imported that it has become incorporated and mixed up with the mass of property in the country, it has, perhaps, lost its distinctive character as an im- port and has become subject to the taxing power of the state; but while remaining the property of the importer in his warehouse, in the original form or package in which it was imported, a tax upon it is too plainly a duty on imports to escape the prohibition of the Constitution." ^ Thus foreign commerce is protected en- tirely from impediments which might be devised by state govern- ments. 2. Analogous to this provision is the clause which forbids any state to lay a tonnage duty without consent of Congress. The word "tonnage" means the entire internal capacity or contents of a vessel or ship expressed in tons of one hundred cubical feet each. States may tax the ships of their citizens as property valued as such; but it is clear and undeniable, the Supreme Court has held, " that taxes levied by a state upon ships and vessels as instru- ments of commerce and ni^igation are within that clause of the ^ Readings, p. 391. ^12 Wheaton, 419. ^ When any state, with consent of Congress, lays duties on imports or exports, the net proceeds of all such duties must be paid into the treasury of the United States. The Constitutional Basis of State Government 431 instrument which prohibits the states from levying any duty of tonnage wdthout the consent of Congress; and it makes no differ- ence whether the ships or vessels taxed belong to the citizens of the state which levies the tax or to the citizens of another state, as the prohibition is general, withdrawing altogether from the states the power to lay any duty of tonnage under any circum- stances without the consent of Congress." ^ 3. No state can lay a tax on the property, lawful agencies, and instrumentaUties of the federal government or on federal fran- chises as such. This principle is not expressed in the Constitu- tion, but it was derived, with liis usual logic, by Chief Justice Mar- shall from the nature of the federal system itself. The power to create impHes the power to preserve; the power to tax is the power to destroy, and if wielded by a different hand is incompatible with the power to create and preserve; therefore if the states could tax federal instrumentahties, they could destroy a union which was meant to be indestructible. According to this doctrine, states cannot tax branches of a United States bank, federal bonds, federal franchises, or by taxation "retard, impede, burden, or in any manner control the operation of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government." - The early doctrine that the states cannot in any way touch a federal instrumentality has been modified more recently to the effect that they cannot interfere with such an instrumen- taUty in such a manner as to impair its efficiency in perform- ing the function which it was designed to serve. A state, for example, cannot tax federal bonds, but it may tax the buildings and other property of a national bank chartered by the federal government. "It is manifest," said the Supreme Court, "that exemption of federal agencies from state taxation is dependent not upon the nature of the agents or upon J;he mode of their constitu- tion, or upon the fact that they are agents, but upon the effect of the tax; that is, upon the question whether the tax does in truth deprive them of the power to serve the government as they were intended to serve it, or does hinder the efficient exercise of their power. A tax upon their property has no such necessary effect. ' State Tonnage Tax Cases, 1 2 Wallace, 204. '4 Wheaton, 316; Weston v. Charleston, 2 Peters, 444. 432 American Government and Politics It leaves them free to discharge the duties they have undertaken to perform. A tax upon their operations is a direct obstruction to the exercise of federal powers." ^ ^ 4. In the exercise of its police power and power of taxation a state may not seriously interfere with interstate commerce; ^ but it may pass laws relative to matters which are local in charac- ter, even though they do affect in some way such commerce. For example, the Supreme Court sustained a law of Kentucky providing for the inspection of illuminating oils and imposing a penalty upon persons selUng oil branded as unsafe by state in- spectors — this law being in the interests of public safety — although it certainly interfered with the right of citizens of other states to sell oil freely in that commonwealth.^ Likewise a quar- antine law of the state of Louisiana was sustained, although it incidentally restricted freedom of commerce. States may prohibit the running of freight trains on Sundays; forbid the employment of color-blind engineers on interstate as well as local trains; re- quire the heating of cars ; regulate speed within city Hmits; and compel the guarding of bridges and the protection of crossings even though such provisions affect interstate as well as local business. State actions which constitute an invasion of federal power may likewise be illustrated by concrete cases. A law of Minnesota requiring the inspection of all meat twenty-four hours before slaughtering, designed in the interests of pure food, was declared invahd, because it necessarily prevented the transportation, into that commonwealth, of meats from animals slaughtered in other states where, of course, no such inspection could be provided.^ The state of Illinois passed an act regulating the making of rail- way rates within the state; but when it attempted to apply the rule to a shipment beginning in Illinois and ending in another state, the Supreme Court»of the United States by proper process interfered, and declared that the regulation of interstate com- merce from the beginning of a shipment to its end was confidec exclusively in Congress.^ ^Railroad Company v. Peniston, 18 Wallace, 5. ^ See above, chap. xix. 3 Patterson v. Kentucky, 97 U. S. R., 501. *That is, by Minnesota. Minnesota v. Barber, 136 U. S. R., 3i3» ''ii8U.S.R.,557. The Constitutional Basis of State Government 433 Again, a state cannot impose a tax upon all freight carried by a railway/ but it can tax the franchise of a railway company, measuring the extent of its value by the receipts, including the receipts from interstate and foreign commerce. Another important question relative to interstate commerce has been raised by state laws prohibiting the manufacture and sale of intoxicating liquors. In 1873-88, Iowa passed such laws, and the Supreme Court held them void, in so far as they prohibited the sale, by the importer, of Uquor brought in from other states.^ In 1890, Congress passed an act providing that fermented and other intoxicating liquors transported into any state or terri- tory should be subject (as to sale) to the operation of the laws of such state or territory to the same extent and in the same manner as though they had been produced there. ' In other words, the Supreme Court held that prohibiting the importation of intoxi- cating liquor for sale was an interference with interstate commerce — a subject referred by the Constitution to the federal government; and Congress permitted the state to make a regulation of such commerce. This law was upheld, however, by the Supreme Court in a decision in which it was stated that in so legislat- ing Congress had not attempted to delegate to a commonwealth the power to interfere with interstate commerce, but had simply made a uniform regulation under its power to control this commerce.^ 5. The state has practically no power over the monetary system. It may charter and regulate state banks, but it cannot coin money, emit bills of credit, or make anything but gold and silver coin ^ legal tender in the payment of debts. It may, however, authorize a state bank or state banking association to issue notes for circu- lation, but the exercise of this power is practically prohibited by the act of Congress, passed in 1866, laying a tax of ten per cent upon such notes. The effect of this act was to make it impossible, on account of the weight of the tax, for state banks to issue notes at all. The law was upheld by the Supreme Court of the United States for the reason, among others, "that the judicial cannot pre- scribe to the legislative department of the government limitations upon the exercise of its acknowledged powers." ^ * See Readings, p. 348. ^ Leisy v. Hardin, 135 U. S. R., 100. 3/» re Rahrer, 140 U. S. R., 545. '' Coined by the federal government. Veazie Bank v. Fenno, 8 Wallace, 533. 434 American Government and Politics 6. The original Constitution also contains some fundamental limitations on the power of states over criminal legislation. It provides that no state shall pass any bill of attainder — that is, a legislative act which inflicts punishment upon some person with- out ordinary judicial trial. This device had been frequently used for partisan purposes in the British Parliament, and the framers of the Constitution therefore desired to prevent such an abuse of legislative authority in the United States. No state can pass an ex post facto law — that is, one which imposes a pun- ishment for an act which was not punishable when committed; or imposes additional punishment to that prescribed when the act was committed; or changes the rules of evidence so that different or less" testimony (to the serious disadvantage of the accused) is sufficient to convict him than was required when the deed in question was committed.^ This limitation on the states was designed to protect citizens from punishment by legislative acts having retrospective operation, and appUes only to criminal legislation." 7. To protect citizens in their property rights the Constitution provides that no state shall pass any law impairing the obligation of contracts. The obligation of contract is the body of law exist- ing at the time a 'contract is made, defining and regulating it, and making provision for its due enforcement. For example, one Crowninshield, on March 22, 181 1, gave a note to one Sturges; and shortly afterward the state of New York, in which the note was dated, passed a bankruptcy law under which Crowninshield became a bankrupt, and by paying Sturges a portion of what he owed, claimed the right to be discharged from all of the remainder. This law with reference to all debts contracted before its passage was declared invalid by the Supreme Court as impairing the obH- gation of contract.^ The term contract is used in this clause with a far wider meaning than in ordinary private law. It means "a legally binding agree- ment in respect to property, either expressed or implied, execu- tory or executed, between private parties, or between a common- wealth and a private party or parties; or a grant from one party to another; or a grant, charter, or franchise, from a common- ^ Cummings v. Missouri, 4 Wallace, 277. » Calder, v. Bull, 3 Dallas, 386. 3 Sturges V. Crowninshield, 4 Wheaton, 117. The Constitutional Basis of State Government 435 wealth to a private party or private parties." ^ This wide inter- pretation of the term has given the clause a particular social and economic significance, because it has been applied to the protec- tion of the franchises, charters, and privileges secured by private corporations from state legislatures. The Supreme Court, for example, held that a charter secured by Dartmouth College from King James constituted a contract with that corporation which the state was bound to respect on securing its independence, and that a law of the state of New Hampshire designed to control the college and its funds was an impairment of the obligation of that contract.^ Again in the case of the Bank of Ohio v. Knoop, ^ the Supreme Court held that a charter to a bank in which the state agreed to tax the corporation at the rate of only 6 per cent on its dividends was a contract, and that a subsequent law of the state raising the rates on the bank so chartered was an impairment of the obligation of contract.^ Under a strict application of this principle, a state legislature having once granted away special privileges to corporations would be bound to maintain them forever if no specific provisions were made in the grant as to times and limitations. The Supreme Court, however, has refused to extend the term contract to several forms of agreement between a state and its citizens. For example, appointment to a public office for a defi- nite term at a fixed salary is not a contract, and a state impairs no obligation when it abolishes the office. A grant of power to a municipal corporation by a state legislature, a bounty law by which a state agrees to pay so much bounty on certain commod- ities produced within its borders, or a state license to sell liquor for a certain term of years is not a contract. It should be noted also that the Court will declare a law invalid as impairing the obhgation of contract only when it is retrospective, that is, when it applies to contracts made before its passage; and if a state provides in its constitution or laws for future revision of char- ters, franchises, and other forms of contract, it thereby places, in the body of the law, which, as we have seen, constitutes the obligation * Burgess, Political Science and Constitutional Law, Vol. I, p. 235. 2 In the famous case of Dartmouth v. Woodward, 4 Wheaton, 518, decided in 1819. ' 16 Howard, 369, decided in 1853. < The Court has, however, somewhat limited this interpretation. 43^ American Government and Politics of contract, a provision securing henceforward the right to alter the terms of new franchises and privileges without violating this clause of the federal Constitution. All the states now safeguard, by this precautionary measure, their right to control privileges once granted, so that it is no longer possible for private corpora- tions to secure either honestly or by corrupt means priceless franchises and then to defend them against withdrawal or modifi- cation by taking shelter under the contract clause of the federal Constitution. The general tenor of the provisions securing state legislatures from the strangUng effect of this clause is illustrated by this extract from the constitution of Wisconsin: "All general laws or special acts, enacted under the provisions of this section [deaHng with corporations], may be altered and repealed by the legislature at any time after their passage." 8. By far the most important guarantees for personal and prop- erty rights are to be found in the general clauses of the Fourteenth Amendment, which, for practical purposes, place in the hands of the federal judiciary the power of controlling state legislation on most important matters. According to section i of that Amendment, no state shall make or enforce any law which may abridge the privileges or immunities of citizens of the United States; no state may deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the law. In order to under- stand the full import of the several terms employed in this brief but significant section, it is necessary to examine them in the light of judicial decisions, for in themselves they furnish slight clew to the real legal processes which they secure. At the outset, what are the privileges and immunities of citizens of the United States which cannot be abridged by a state? The nationalist school of publicists, represented by Professor Burgess, contend, and advance sound historical arguments to show, that it was the purpose of the men who framed this clause to national- ize civil liberty, by setting up against the states those privileges and immunities which of right belong to the citizens of all free governments — that is, in particular, those privileges and im- munities guaranteed to citizens against the federal government in the first ten amendments.^ See Readings, p. 136. d The Constitutional Basis of State Government 437 The Supreme Court of the United States, however, has refused to accept this interpretation; and has held that there is a differ- ence between the rights belonging to a citizen of the United States as such and those belonging to a citizen of a state as such, and that the latter must depend for their security and protection upon the state, as before the adoption of the Fourteenth Amendment. If it had been the intention of the Amendment, the Court held, to vest the protection of the whole domain of civil liberty in the hands of the federal government, the result would have been a revo- lution ; Congress would have passed supplementary laws limiting and restricting the exercise of legislative power by the states in their most ordinary and usual functions; and finally the Court would thus be a perpetual censor upon all state legislation rela- tive to the civil rights of the citizen/ The Court thereupon proceeded to enumerate some of the rights of "citizens of the United States" in contradistinction to the rights which they enjoy as citizens of states. A citizen of the United States has a right to approach the seat of government to assert any claim that he may have upon it, transact business with it, invife its protection, share its offices, and engage in its administration; he has access to its seaports, sub-treasuries, land offices, and courts of justice in the several states; he can claim the protection of the federal govern- ment in the defence of his life, liberty, and property on the high seas or when within the jurisdiction of a foreign government; he may join with other citizens in the peaceable assembling and petitioning for a redress of grievances; he has the privilege of the writ of habeas corpus, and the right to use the navigable waters of the United States. While these do not exhaust all of the possible privileges and immunities enjoyed by a citizen of the United States as such, they indicate the character of the narrow interpretation placed upon the clause by the Supreme Court.^ By far the most important part of the Fourteenth Amendment is a brief sentence which forbids a state to deprive any person ^ of life, liberty, or property, without due process of law. The term "life," as interpreted by the Supreme'Court, means something more than mere animal existence; and the prohibition against its ' This is the language of the Court. 'Slaughter House Cases, 16 Wallace, 36. ^ A corporation is a " person " in the eye of the law. 43^ American Government and Politics deprivation extends to all those limbs and faculties by which life is manifested. "The provision equally prohibits the mutilation of the body by the amputation of an arm or a leg, or the putting out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world." ^ The term "liberty" used in this clause does not mean Hberty in the abstract, but the freedom of the individual to do what he can within the limits of the law properly imposed and duly enforced, and freedom from interference by governmental authorities so long as he does not transgress the legal bounds to his sphere of individual action.^ The term "property" is not limited to tangi- ble goods having an exchange value, but it extends to every form of vested right which the possessor has legally acquired.'* Of none of these things may any person be deprived without due process of law; but what is due process of law? The Supreme Court has steadily refused to define " due process " in the abstract, and it is not possible to make any very satisfactory generalization. It may be said, however, that due process of law, as required by the Fourteenth" Amendment, does not necessitate the use, by the state, of all those legal processes, such as indictment by grand jury and trial by petty jury with unanimous verdict, prescribed in the first ten amendments to the federal Constitution. Due process of law, said the Court in one case, is " due process according to the law of the land, and the law of the land is the law of the state." * In another case, due process of law was interpreted to mean "a course of legal proceedings according to those rules and principles which have befen established in our system of jurisprudence for the protection and enforcement of private rights."^ And in still another case, the Court declared that there are certain immu- table principles of free government which control the law of every state.*^ In other words, the Court seems inclined to hold that any law of a state is not invalid under this due process clause unless it transgresses certain theories of government existing nowhere in ^Munn V. Illinois, 94 U. S. R., 113. ^ For Mr. Roosevelt's view of the social implication 3 of the term, see ings, p. 286. 2 Campbell z;. Holt, 115 U. S. R., 120. 4 Walker v. Sauvinet, 92 U. S. R., 90. ^Pennoyer v. Neff, 95 U. S. R., 714. «Holden v. Hardy, 169 U. S. R., 366. The Constitutional Basis of State Government 439 the law, but only in the minds of the judges rendering the opinion.* The best way of ascertaining the full import of this phrase is to examine its application to certain classes of state laws. (a) What is due process of law in criminal cases? A law of California provided that a person could be prosecuted for felony by information after examination and commitment without in- dictment by a grand jury. Under this law one Hurtado was charged with the crime of murder on information without pre- Uminary grand jury hearing and indictment, and, after jury trial in the ordinary manner, was found guilty and condemned to death. Was Hurtado to be deprived of life and liberty without due pro- cess of law? The Court replied that due process of law under the Fourteenth Amendment was different from that of the Fifth Amendment; that it did not require indictment by grand jury; and that "any legal proceeding enforced by pubHc authority, whether sanctioned by age and custom, or newly devised in the discretion of the legislative power in furtherance of the general public good, which regards and preserves these principles of Hberty and justice [lying at the basis of all our civil and poUtical institutions] must be held to be due process of law." - {b) Due process of law in civil matters was defined in a general way in the case of Walker v. Sauvinet,^ in which the court held that trial by jury in suits at common law in state courts was not a privilege which the states were forbidden to abridge by the Four- teenth Amendment, and that the requirement of the Constitu- tion was met if a trial was had according to the set course of judicial proceedings. In other words, any process which estab- lishes reasonable security, full notice, and satisfactory protection to persons involved in civil suits may be regarded as due process. {c) In the imposition of taxes states must follow due process ; and whenever a tax is imposed according to the valuation of property, due process merely requires general notice to the owner and a hearing of complaints so as to give him a chance to contest his liability; personal notice is not necessary. The right to be heard is not a necessary part of due process in the imposition of poll and license taxes, specific taxes on things, persons, or corporations, or many other kinds of taxes definitely fixed by legislative enact- ment. * Fpr a concrete illustration, see Readings y pp. 617 and 619. 2 Hurtado v. California, no U. S. R., 516. '92 U. S. R., 90. 440 American Government and Politics (d) It is in legislation controlling corporations and protecting labor, that state legislatures most frequently come into conflict with due process of law as interpreted by the Supreme Court. For example, the legislature of Minnesota created a railway commission with the power to compel any common carrier to fix such rates as the commission should declare to be equal and reasonable, and made no provision for judicial review of the rates and charges so fixed. This law was held unconstitutional on the ground that it deprived a railway company of its right to judicial investigation by due process of law under the forms and with the machinery provided for the judicial investigation of the truth of any matter in controversy, and substituted for this, as an abso- lute finality, the action of a railway commission which could not be regarded as clothed with judicial functions or possessing the machinery of a court of justice.^ To take another example: the legislature of New York passed a law providing that no em- ployees should be required or permitted to work in bakeries more than sixty hours a week or ten hours a day, and the Supreme Court held this law invalid on the ground that it was an un- reasonable, unnecessary, and arbitrary interference with the right and liberty to contract in relation to labor — the right and Hberty to purchase and sell labor being within the protection of the Fourteenth Amendment.^ Whenever a state regulates rail- way or other rates, its terms must be "reasonable," that is, allow proper returns on investments.^ A state, however, may do, under that vague authority known as the "poHce power," many things which interfere with life, liberty, and property; but the Court refuses to define the term police power, reserving to itself the right to determine at any time whether any particular act is warranted under that power or not. A broad interpretation of the term police power would give a state the right to do anything designed to promote general welfare as opposed to special privilege. Indeed, the Court once said that the poHce power is the power "to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the state, develop its resources, and add to its wealth and its ' See Readings, p. 615. ^See Readings, p. 617; note also the dissenting opinion by Mr. Justice Holmes, ibid., p. 619. ^Reagan v. Loan and Trust Co., 154 U. S. R., 362 I The Constitutional Basis of State Government 441 prosperity." ^ It is evident, however, that such a generous interpretation of the powers of the state might very well nullify the provisions of the Fourteenth Amendment in the hands of any judiciary in sympathy with an increase in the control exercised by the state over private rights in the name of general welfare. At all events a state, under its poUce power, may do many definite things. It may, for example, restrict dangerous and objectionable trades to certain localities; it may confine the in- sane or persons afflicted with contagious diseases; it may regulate, to a Umited extent, railways and other common carriers; and it may order the destruction of a building in the path of a confla- gration or endangering the health and safety of neighbors and passers-by. It is clear, nevertheless, that police power, like that other vague phrase "due process of law," is wholly within the keeping of the judicial conscience, and its interpretation depends upon the general social and political theories of the judiciary.^ The State and Nation The position of the state in the federal system is not only fixed in law, as defined by the federal judiciary. The state forms a sec- tion of the great extra-legal party organization which dominates national politics and often subordinates state issues to the exi- gencies of federal issues. The state is, indeed, the fundamental unit in the national party system. Delegates to the national conventions are assigned to states in accordance with their rep- resentation in Congress; federal patronage is distributed with a view to building up the general party organization within the limits of each commonwealth; United States Senators are gener- ally party leaders within their commonwealths, and occupy posi- tions of influence in the national party organization; and ambitious politicians in the state usually regard state offices as stepping-stones to higher things. Thus the great nation-wide party organization, founded on national as opposed to sectional interests, tends more and more to bring the state down from that proud position occupied in the beginning of our history. The autonomy of the state is furthermore being reduced by the growth of national industries, interstate commerce, and national ^Barbier v. Connolly, 113 U. S. R., 27. 2 This is based upon a statement by Mr. Justice Holmes; see Readings, p. 619. On the subject of the police power, see Readings, p. 394. 442 American Government and Politics business organizations known as combinations and trusts. These new forces making for unity and centralization penetrate to the loneliest hamlets in the most thinly populated commonwealths/ The regulation of these great interstate interests is confided under the Constitution to the federal government, which is steadily multiplying in number and extent its supervisory activities. The conduct of commerce and industry by corporations increases the amount of legal business which is taken out of the hands of the state judiciary and vested in the federal courts under that clause of the Constitution which gives the latter authority and jurisdiction over smts between citizens of different states.' While enumerating this multitude of restrictions upon the states, we must, at the same time, remember that an enormous and important domain of power is still reserved to them. Article lo of the amendments provides that the powers not granted to the United States by the Constitution nor prohibited by it to the states are reserved to the states respectively or to the people. The regulation, therefore, of almost all the ordinary affairs of life is left to the states. As Mr. Bryce has put it, "An American may, through a long life, never be reminded of the federal govern- ment except when he votes at presidential and congressional elec- tions, buys a package of tobacco bearing the government stamp, lodges a complaint against the post-office, and opens his trunks for a custom house officer on the pier at New York when he returns from a tour in Europe. His direct taxes are paid to offi- cials acting under state laws. The state or local authority con- stituted by state statutes registers his birth, appoints his guar- dian, pays for his schooling, gives him a share in the estate of his father deceased, licenses him when he enters a trade (if it be one needing a license), marries him, divorces him, entertains civil actions against him, declares him a bankrupt, hangs him for murder; the poHce that guard his house, the local boards which look after the poor, control highways, impose water rates, manage schools — all these derive their legal powers from his state alone." This, however, is too strong a statement of the case, for the ^ See Moody, The Truth about the Trusts. ^ For a protest of a state against this extension of power of the federal courts, see Readings, p. 233; see also the article by Professor Robert Bruce Scott in the American Political Science Review, for August, 1909: "The In- creased Control of State Activities by Federal Courts." a The Constitutional Basis of State Government 443 individual does come into contact with the federal government far more often than it would lead us to believe — indeed, far more often than when Mr. Bryce wrote his epoch-making work. Al- though he may not be conscious of the fact, every time he pur- chases a commodity, smokes a cigar, or has a glass of liquor, the citizen pays tribute to the federal government; whenever he ships a commodity by freight to a point out of his state, he pays rates which are under the supervision of the Interstate Commerce Commission; the rural free mail delivery reaches him on his farm or in his summer camp in the mountains; if he journeys from one state to another, he pays a car fare which is under the regulation of the federal government. If he be a working man engaged in a strike against some large corporation, the chances are that the injunction against him will come from a federal court, and it will be on an order of that court that he is punished if he disobeys the injunction. If he attempts to send through the mails some publication which the post-office authorities may declare objec- tionable, he may find himself in the toils of the federal law. It is not necessary to continue the enumeration.^ The federal government is not so far away from the life of the citizens as it once was, and as the economic organizations of labor and capital increase the extent and strength of their ramifications throughout the social body, the federal government will inevitably come nearer and nearer to the private citizen. Nevertheless, the func- tions of the state will also increase in importance, and the state as a guardian of fundamental public and private interests should grow in the esteem of the citizen. The Admission of New States The federal Constitution contains no details as to the way in which a new state may be admitted to the Union. It simply provides that new states may be admitted by Congress, and that no new state shall be formed out of another state or by the junction / of two or more parts of different states without the consent of the legislatures concerned and Congress as well. A variety of meth- ods have been employed in the admission of new states. Texas, for example, was admitted to the Union in 1845 as an indepen- * Note also the operations of the pure food law, federal quarantine, forestry service, irrigation laws, the activities of the Department of Agriculture on behalf of the farmers, etc. 444 American Government and Politics dent republic by resolution of Congress; and California never went through the territorial stage. The inhabitants of that region shortly after the cession from Mexico drew up a constitution, demanded admission to the Union, and Congress yielded. The ordinary process of admitting a state is simple. The inhabitants of a territory present a petition to Congress praying for admission to the Union. If the petition is granted, Congress passes an"enabHng act" authorizing the voters of that territory to call a convention to frame their constitution and thus prepare to take their position among the other commonwealths. If the people of the territory comply with the conditions, Congress then passes a resolution declaring the said territory to be a state and admitted to the Union; and the fact is generally announced to the world by a formal executive proclamation. In several instances, notably in the cases of Missouri, Kansas, Utah, and Oklahoma, Congress has entertained objections to the constitution drafted by the territory demanding statehood, and has delayed admission until certain suggested amendments were adopted. The only constitutional question of any importance which has arisen in connection with the admission of new states is whether Congress has the power to impose on a commonwealth coming into the Union any limitations in addition to those laid down in the federal Constitution. It is the theory that all the states in the Union are equal in rights and privileges. The famous Northwest Ordinance of 1787, continued by Congress in 1789, declared that the new states created in that region should be admitted "on an equal footing with the original states in all respects whatever." On the admission of Ohio in 1802, however. Congress forced that state to agree not to tax for a period of five years any public lands sold within its borders by the United States. The enabhng act for Nevada, passed in 1864, while declaring that the state should be admitted into the Union "upon an equal footing with the original states in all respects whatsoever," specifically re-M quired that its constitution should not be repugnant to the prin- ciples of the Declaration of Independence, that perfect religious toleration should be secured, and that the land belonging to non- resident citizens of the United States should not be taxed any higher than the lands of residents.^ |H * See Readings, p. 397; Dunning, Essays on Civil War and Reconstruction, pp. 305 ff. The Constitutional Basis of State Government 445 The Supreme Court has declared, in a case involving limita- tions on Illinois that "whatever the limitation upon her powers as a government whilst in a territorial condition, whether from the Ordinance of 1787, or the legislation of Congress, it ceased to have any operative force except as voluntarily adopted by her after she became a state of the Union. On her admission she at once became entitled to and possessed of all the rights of dominion and sovereignty which belonged to the original states. She was admitted and could be admitted only on the same footing with them."^ Nevertheless, the Court has upheld a limitation on Minnesota by which that state, on its admission, was bound not to impose any tax on lands belonging to the United States, or any higher tax on non-resident proprietors than on residents. The Court said in this instance: "The case before us is one involving simply an agreement as to the property between a state and a nation. That a state and a nation are competent to enter into an agreement of such a nature with one another has been affirmed in past decisions of this Court, and that they have been frequently made in the admission of new states, as well as subsequently thereto, is a matter of history."^ Nevertheless, the Court seems inclined to distinguish between limitations with reference to political rights and obligations and those relating solely to property belonging either to the state or national government.^ State Constitutions Subject to the limitations of the federal Constitution and to such hmitations as may be imposed at the time of admission, the voters of each state may draft the constitution of their common- wealth as they please; * and one might naturally expect to dis- cover the greatest divergences among the fundamental laws of the different states. On the contrary, however, we find striking similarities, especially among the constitutions of any particular decade. Classifying the various state constitutions on the basis of their contrasts, we may put them in the following groups. There are, * Escanaba v. Chicago, 107 U. S. R., 678. ^Steams v. Minnesota, 179 U. S. R., 223. 3 BoUn V. Nebraska, 176 U. S. R., 83. * It must be noted that the Constitution requires every state government to be "republican" in form. 446 American Government and Politics in the first place, the older states whose constitutions bear the impress of colonial times. In this group we may place Massa- chusetts, whose fundamental law of 1780 has not been reorganized; Connecticut, with a constitution that has not been subjected to a general revision since its estabHshment in 18 18; Rhode Island, with the slightly amended constitution of 1842; New Hampshire, with the old fundamental law of 1792, slightly reconstructed in 1903. In the second group may be placed the constitutions which may be said to belong to the generation just past, and in size, form, and general content stand midway between the New England constitutions and those of the most recent years: New York (1894), Pennsylvania (1873), Ohio (1851), Indiana (1851), IlHnois (1870), Wisconsin (1848), Kentucky (1891), Minnesota (1857), Nebraska (1875), Missouri (1875), Iowa (1857), and Tennessee (1870). ' In the third group may be placed the southern states, many of which — Virginia (1902), South Carolina (1895), Alabama (1901), Mississippi (1890), and Louisiana (1898) — have revised their constitutions within the last fifteen or twenty years. In the fourth group may be placed the newest western constitu- tions, noted for their more or less radical departures from the precedents set by the older commonwealths: California (1879), with frequent alterations; Oregon (1857), embracing the impor- tant amendments of 1902, 1906, and 1908; Oklahoma (1907) and Michigan (1908). The differences in the constitutions, however, are no index t the real differences in form of government, for nearly all of the newer and more bulky fundamental laws provide for institutions which have been set up in older states by legislative enactment. For example, there is no clause in the constitution of New York creating a pubHc service commission, and yet New York has a commission with large powers over common carriers within each of the two districts into which the state is divided. On the other hand, the constitution of Oklahoma contains several pages of law creating the pubHc service commission and defining its powers and activities. Moreover, in drafting new constitutions, the state conventions are quick to take advantage of a comparative study of the laws of other states. The members of the New York constitutional convention, for instance, had before them in tabu- $ The Constitutional Basis of State Government 447 lated form the provisions of the constitutions of every state in the Union, grouped according to subject-matter; ' and this handy compendium of comparative constitutional law was evidently examined with considerable care, as the debates from day to day revealed.^ A study of the constitution of Oklahoma shows many clauses which have been taken almost word for word from the constitutions of other states. A state constitution usually falls into six parts: (i) a bill of rights; (2) the sections providing the framework of government, central and local, and the fundamental Hmitations of each branch; (3) the sections dealing with state finances; (4) the clauses providing for the control of economic interests, such as railways, , insurance, banking, and labor; (5) the clauses providing for edu- cation and social welfare generally; and lastly (6) the amend- ment clause. I. Taking several of the state constitutions together, we find fthat a composite view of the bill of rights reveals two somewhat sharply defined parts.^ The older part contains those ancient and honorable limitations on behalf of private rights so famous in the constitutional history of England and the United States — indictment by grand jury; trial by jury; the free exercise of religious worship without discrimination or preference; the privi- lege of the writ of habeas corpus save in case of rebelHon, invasion, or public danger; prohibition of excessive bail and fines and cruel and unusual punishments; compensation for private property when taken for public use; the right of every citizen to speak freely, write and pubUsh his sentiments on all matters subject to responsibiHty for hbellous publications; and the right peaceably to assemble and petition the government or any department thereof.'* By the side of these rights of ancient English origin, we find, in many of the recent state constitutions, a number of newer prin- ciples ; such, for example, as are laid down in the constitution of Oklahoma. In that document, prosecution for felony and mis- demeanor by information as well as by indictment is expressly sanctioned, but no one may be prosecuted by information for * So also in Michigan in 1907. ^ See Readings, p. 144. ^ Compare, for example, the bill of rights of the Oklahoma constitution with that of the New York constitution. ■• Drawn from Article I of the constitution of New York. 44^ American Government and Politics felony without having had a preliminary hearing before an exam- ining magistrate or having waived such hearing. In county courts and courts not of record the petty jury consists of only six men; and in civil cases and in criminal cases involving crimes less than felony, three-quarters of the whole number of jurors may render a verdict. In other cases una- nimity is required. In all criminal prosecutions for Hbel the truth of the matter alleged to be libellous maybe given in evidence to the jury, and if it appears to the jury that the matter charged as libellous is true, or was written with a good motive or for justi- fiable ends, the party shall be aquitted — a provision in behalf of liberty of speech and press which is to be found in the consti- tutions of more conservative states Uke New York. While safeguarding private property by providing that it shall be taken for private use only under very strict limitations and for public use only when just compensation is given, the Oklahoma constitution declares that " the right of the state to engage in any occupation or business for pubUc purposes shall not be denied nor prohibited, except that the state shall not engage in agriculture for other than educational and scientific purposes and for the support of its penal, charitable, and educational institutions. " It furthermore provides that municipal corpora- tions may engage in any business or enterprise which may be carried on privately under a franchise from the municipality. ^ Perpetuities and monopolies are declared to be contrary to the genius of free government and forever prohibited. Corporations are excluded from several privileges and immuni- ties secured to natural persons, for the framers of Oklahoma's fundamental law have provided for unrestricted searches into the actual operations of corporations, by explicitly stating that their records, books, and files shall be at all times subject to the full visitorial and inquisitorial powers of the state, notwithstand- ing the rights secured to persons and to citizens. The ancient rule of law that a person is not required to give evidence tending * In case a state should engage in business on such a large scale as to de- stroy the enterprises of private persons, would claims for compensation lie against it, or would the Oklahoma courts extend to the body politic that prin- ciple laid down by the English courts with reference to private corporations, namely, that damages are not recoverable for injury done in the ordina course of competition? See Webb, Industrial Democracy (1902), p. xxix I The Constitutional Basis of State Government 449 to incriminate himself when testifying against any other person or corporation is abrogated, but his substantial right is secured by the provision that he shall not be prosecuted or subjected to any penalty or forfeiture for or on account of anything con- cerning which he may testify or produce evidence. The constitution of Oklahoma furthermore guarantees to its citizens complete immunity from martial law by declaring, "The privilege of the writ of habeas corpus shall never be sus- pended by the authorities of this state." This subordination of military to civil authority is accompanied by a positive limita- tion on the power of the judiciary in the granting of injunctions. The legislature, it is declared, shall pass laws defining contempts and regulating proceedings and punishments in case of contempt; but every person accused of violating or disobeying an injunction out of the presence and hearing of the court is to be entitled to trial by jury to determine his guilt or innocence, and in no case shall penalty or punishment be imposed for contempt until the accused has had an opportunity to be heard. In addition to these ancient and newer principles of civil liberty, there are to be found in several bills of rights curious provisions which belong rather to the sphere of poUtical theory than to con- stitutional law, but are interesting nevertheless. The constitu- tion of Lousiana, drafted in 1898, declares that "all government of right originates with the people, is founded on their will alone and is instituted solely for the good of the whole; its only legiti- mate end is to secure justice to all, preserve peace and promote the interest and happiness of the people." According to the constitution of Kentucky (1891), "absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority. All men when they form a social compact are equal; ... all power is inherent in the people and all free governments are founded on their author- ity and instituted for their peace, safety, happiness, and the pro- tection of property. For the advancement of these ends, they have at all times an inahenable and indefeasible right to alter, reform, or aboUsh their government in such manner as they may deem proper." The Massachusetts constitution solemnly announces: " It is the right as well as the duty of all men in society, publicly and at stated seasons to worship the Supreme Being, the great creator and the preserver of the universe." The inhab- 450 American Government and Politics itants of Vermont are warned by the eighteenth article of the declaration of rights "that frequent recurrence to fundamental principles and a firm adherence to justice, moderation, temperance, industry, and frugaUty are absolutely necessary to preserve the blessings of liberty and keep government free; the people ought, therefore, to pay particular attention to these points, in the choice of officers and representatives, and have a right in a legal way to exact a due and constant regard to them, from their legislators and magistrates, in making and executing such laws as are nec- essary for the good government of the state." While guarantee- ing freedom of rehgious worship, the constitution of Pennsylvania declares, "that no person who acknowledges the being of a God and a future state of rewards and punishments shall, on account of his rehgious sentiments, be disquaUfied to hold any ofiice or place of trust or profit under this commonwealth." II. The second part of a state constitution embraces those sectfons deahng with the distribution of powers, the frame of government, and the Hmitations on the authorities of the state. This part usually outhnes the form of the central government in considerable detail, and contains more or less expHcit provisions in relation to rural and municipal government. It defines the suffrage, provides for the organization of the legislature, and prescribes the limitations under which it must operate. It provides for the election of the governor and the great officers of state, leaving the construction of the minor adminis- trative offices and boards to the legislature; it creates the judicial system, state and local; but generally intrusts the regulation of minor details with regard to jurisdiction, procedure, and appeals to the legislature. III. The third division of ijlir_composite state constitution places fundamental limitations upon the financial power of the state legislature.^ The provisions are often detailed and com- plicated, but their general purpose is to fix a debt limit beyond which the legislature cannot go, and to compel that body to make adequate provision for the payment of interest and principal on debts created.- IV. The fourth part of our composite state constitution lays down, with considerable minuteness, the general principles which See below, chap. xxxi. ^Readings, p. 460 ^ The Constitutional Basis of State Government 451 shall be applied in the regulation of corporations and conditions of labor.^ The newer constitutions are especially full and explicit in these points; they not only provide that corporations shall be chartered under general rather than special laws, but they go into great detail with regard to pubUc service corporations. Northern constitutions — for example, those of New York, Pennsylvania, Ohio, and Indiana — dispose of the matter in relatively few words; but the constitution of Virginia, drafted in 1902, contains twelve large and closely printed pages on the subject of corporations alone; while Oklahoma gives fourteen pages of the same size to that branch of law.- These newer constitutions Umit very nar- rowly the activities of corporations. They provide for a cor- poration commission with large powers iii the regulation of rates, charges, and general conduct of corporate business. Oklahoma provides for physical valuation of railways; endeavors to pre- vent stock watering; fixes a rate of two cents a mile for carrying passengers, subject to change by the legislature and corporation commission; and prohibits the consoHdation of competing com- panies and the establishment of monopolies. On behalf of labor, the Oklahoma constitution provides for a separate state depart- ment, prohibits the contracting of convict labor, stipulates an eight-hour day in all public employments, orders the legislature to pass laws protecting the health and safety of employees in factories, mines, and on railroads.' V. The fifth part of our composite constitution contains a large variety of miscellaneous provisions designed to promote general welfare. It usually includes sections relative to the pubhc schools and the state educational system; the Nebraska constitution, for example, requires the legislature to provide free instruction in the common schools of the state for all persons between the ages of five and twenty-five; it sets aside certain revenues for educational purposes; and creates a board of regents for the state university and prescribes their duties. Under these general provisions we also find clauses regulating or prohibiting the manufacture and sale of intoxicating liquors, providing for the care and maintenance of the poor, exempting homesteads from forced sales for debt except under prescribed conditions, ^Readings, p. 91 and 610. ^See Thorpe, American Charters, Constitutions and Organic Laws, Vol. VII, pp. 3936, 4300. See below, chap, xxxii. 452 American Government and Politics fixing the maximum rates of interest, safeguarding public health, creating charitable and eleemosynary institutions, and controlling the care and management of pubHc property.^ VI. The last part of our composite constitution makes pro- vision for future alterations by prescribing the way in which amendments may be proposed and adopted.^ The State Courts and the Constitution The constitution of a state is its fundamental law, and stands very nearly in the same relation to the authorities of the state in which the federal Constitution stands to federal authorities.' ^ In other words, it is the supreme law of the commonwealth, and ' the state courts are bound to hold unconstitutional the act of any state authority, legislative or executive, which violates that supreme law.^ This principle, which met with some resistance in the beginning of our history, has now been universally accepted. "In exercising this high authority," it has been said, "the judges claim no judicial supremacy; they are only the administrators of pubUc will. If an act of the legislature is held void, it is not because the judges have any control over the legislative power, but because the act is forbidden by the constitution and because the will of the people which is therein declared is paramount to that of their representatives expressed in any law." In passing upon the constitutionality of acts of the legislature, the courts of New York have laid down certain principles which are quite commonly accepted throughout the United States.* The constitution should be so construed as best to promote the objects for which it was made, avoiding the two extremes of a wide and a strict construction; statutes are presumed to be constitutional; an act must be constitutional in substance as well as in form; the constitutionaHty of statutes is not to be passed upon unless necessary to the decision of the case in ques- ' Below, chap, xxxii. J *Below, chap, xxiii, and Readings, p. 411. ^ ^In Florida, Maine, Massachusetts, New Hampshire, Colorado, and South Dakota, the judges of the high court are required to give opinions when requested by the governor or legislature, or both. * The state judges are also bound to declare void a state act violating the federal Constitution. ^From the Legislative Manual of New York (1908), pp. 83 ff. A The Constitutional Basis of State Government 453 tion; no statute should be declared unconstitutional unless it is in direct, clear, and necessary conflict with the constitution; a law, unconstitutional in part, may be enforced as to its con- stitutional provisions. A statute evading the terms and frustrat- ing the general and clearly expressed or necessarily implied purposes of the constitution is as certainly void as if expressly forbidden; in the case of an act susceptible of vaUd or invaHd construction courts should lean to construction of vaUdity; if an act is corruptly administered, this is no reason for holding it unconstitutional; the long and undisputed practice in the construction of a constitutional provision by the legislature has almost the force of judicial exposition in its interpretation. The Suffrage The ultimate political power in every state, subject to the limitations of the federal Constitution, is vested in those persons who possess the qualifications required for exercise of the suf- frage under the fundamental law of the state. These quali- fications may be classified into five groups: age, sex, residence, citizenship, and miscellaneous. All of the states have adopted the ancient English rule of fixing the age limit at twenty-one years. Four of the states, Colorado, Idaho, Utah, and Wyoming, have conferred the right to vote at all elections upon women as well as men.^ In lUinois, Kansas, Kentucky, Michigan, Minnesota, Montana, Nebraska, New Hampshire, North Dakota, Oklahoma, Oregon, South Dakota, Washington, Wisconsin, and some other states women may vote in school elections; in Kansas, women vote in municipal elections; and in New York, women other- wise quaUfied, whenever they own property in the village or town, may vote in village elections and town meetings on ques- tions involving taxation. Undoubtedly there is a general tendency to extend the suffrage to women, on account of their growing demand for it. They claim that they are as vitally interested in government — in ' A constitutional amendment providing for woman's suffrage was sub- mitted to the voters in Oregon in June, 1906. It was defeated by a vote of 47,075 to 36,902. The same question had been submitted in that state in 1900, when it was defeated by a vote of 28,402 to 26,265. In 1908, it was again defeated by a large majority. 454 American Government and Politics 1 la\\^| taxation, sanitation, labor legislation, tariff, pure food and the like — as are the men/ They also urge that it cannot be a mere question of intelligence, for if a standard of inteUigence were appHed which would exclude the entire female sex, it would at the same time sadly deplete the ranks of the male voters. Those who hold that the domestic occupations of women would be disturbed by the exercise of the franchise are met by the argu- ment that miUions of women are now wage-earners out of the home, and that anyhow voting is no more incompatible with cooking than with any ordinary masculine occupation. More- over, the fact is certain that where the women have the vote, domestic life is not harmed in any way. Finally, those who claim that women really do not care for the vote are met by the argu- ment that where they are given the right they do manifest a decided interest in the franchise. Ex-Governor Adams of Col- orado says that "in his own residence precinct in Pueblo, at the 1902 state election, 46 per cent, and at the 1903 municipal election 44 per cent, of the total vote was cast by women." An- other estimate shows that the proportion of the total vote (1904- 1905) cast by women in Colorado ranged from 46 per cent at the municipal election in the best residence precincts to 25 per cent at the state election in an agricultural and horticultural region where, as is well known, it is difficult to get the men out to vote. The figures for Colorado are undoubtedly incom- plete, but they show that women do take the exercise of their political rights quite seriously.^ The length of residence required in a state before any person is allowed to vote varies from three months in Maine to two years in Alabama, Louisiana, Mississippi, North Carolina, Rhode Island, South CaroHna, and Virginia. Several of the states — Idaho, Indiana, Iowa» Minnesota, Nebraska, and Oregon, for example — fix the term at six months. The most common rule, however, is one year — the rule in force, for instance, in Arkansas, CaHfornia, Colorado, Missouri, Ohio, Pennsylvania, and New York. Nearly all of the states require voters to be bona-fide citizens of the United States; but Alabama, Arkansas, Indiana, Michigan, ^ For arguments on both sides, see Readings, p. 405. ^ On this whole matter, see the careful study by Miss Helen Sumner, Equal Suffrage. The Constitutional Basis of State Government 455 Missouri, Nebraska, Oregon, South Dakota, Texas, and Wis- consin admit to the suffrage aliens who have declared their intention of becoming citizens. This practice of conferring political rights upon foreigners was early adopted to encourage immigration, but within recent years it has met with serious protests,^ and no doubt it will be abandoned in due time. Among the special limitations imposed by the states on suffrage 7are tax and educational tests, and the peculiar tests appHed in the (South to exclude the negroes.^ Tax quaHfications are imposed by only a few states. The constitution of Arkansas requires the voter to exliibit a poll tax receipt or other evidence that he has paid his poll tax; Tennessee likewise requires the payment of a poll tax; and the constitution of Pennsylvania provides that voters of twenty-two years of age or upwards must have paid within two years a state or county tax, assessed at least two months, and paid at least one month, before election. . In some of the southern states the tax-paying qualification forms one of the alternative qualifications laid on voters. Almost one-third of the states impose some kind of an edu- cational test, either as an absolute or optional quaUfication.^ Massachusetts, for example, requires the voter to be able to read the constitution of the state in the EngUsh language and write his own name, if he is not prevented by physical disability or was not over sixty years of age at the time the amendment went into effect. Connecticut Hkewise prescribes that the citizen must be prepared to read, in the EngUsh language, any article ^ Readings, p. 143. ^ Idiots, insane persons, and criminals are excluded from the right to vote. 3 In 1906, thirteen States — Alabama, California, Connecticut, Dela- ware, Louisiana, Maine, Massachusetts, Mississippi, New Hampshire, North Carolina, South Carolina, Washington, and Wyoming — had a reading qualification. Eight of these states added some sort of a writing qualifica- tion, some requiring the voter to write his name, while in others the voter had to write a portion of the constitution; one state required the voter to write out the application for registration. In the southern states, however, the force of the educational qualifications is generally greatly diminished by exempting from them large classes of persons by "grandfather clauses" or by provisions exempting property owners from the requirements. Some of the other states exempted persons who were voters at the time of the adop- tion of the requirement. Most of the thirteen states also exempted persons who were physically unable to read or write. John B. Phillips, Educational Qiialijications of Voters, University of Colorado Studies, Vol. Ill, pp. 55 ff. 456 American Government and Politics of the constitution or any section of the statutes of the state befpre being admitted to the privileges of an elector. '^n order to exclude negroes from the vote without violating the letter of the federal Constitution, several of the southern states have devised special qualifications for voters. The con- stitution of Mississippi, for example, provides that the voter must never have been convicted of bribery, burglary, perjury, or anyone of several enumerated offences ; and must have paid all the taxes which may have been legally required of him, including the poll tax; and must lie able to read any section of the constitution of the state or be able to understand it when read to him, and give a reasonable interpretation thereof. Negroes often have great difficulty in giving a " reasonable " interpretation to the satis- faction of the registration officers. In Louisiana the voter must demonstrate his ability to read and write, on his application for registration; or if unable to read and write he must be the bona-fide owner of property valued at not less than $300; provided, however, "that no male person who was on January i, 1867, or on any date prior thereto entitled to vote under the constitution or statutes of any stale of the United States wherein he then resided and no son or grandson of any such person not less than twenty-one years of age at the date of the adoption of this constitution and no male person of foreign birth who was naturalized prior to the first day of January, 1898, shall be denied the right to register and vote in this state by reason of his failure to possess the educational or property quaUfications prescribed by this constitution." ^ It will be noted that none of these provisions requiring an edu- cational, property, or family qualification is in contravention of the Fifteenth Amendment, which merely, provides that no person shall be disfranchised on account of race, color, or previous condition of servitude. However, they make the state which imposes them liable to a reduction in representation in Con- gress under the Fourteenth Amendment.^ The effect of these southern limitations on the negro vote can ^ Resident and similar qualifications are, of course, required. For the' suffrage provisions of the Virginia constitution of 1902 excluding negroes, see Readings, p. 402. An attempt to disfranchise the negroes in Maryland was defeated in the election of November, 1909. ■^ See Readings, p. 393; and above, p. 163. The Constitutional Basis of State Government 457 be gathered from the published statistics for South Carolina and Mississippi/ It appears that in those states there were 350,796 adult male negroes in 1900 and that the total Republican vote (in both states) in the national election of that year was only 5443. At a rough guess, perhaps 2000 of this number were cast by white men, and the conclusion must be that about ninety- nine negroes out of every hundred failed to vote for President in those states. Several attempts have been made to test the constitutionality of these suffrage laws, but the Supreme Court of the United States, principally on technical grounds, has been able to avoid coming to a direct decision on the merits of the particular measures. In one of these cases,^ the plaintiff alleged that the Alabama con- stitutional restrictions on the suffrage were designed to deprive the negroes of the vote, but the Court answered that a court of equity could not remedy such a wrong; that the court could not, through its officers, take charge of and Operate the election ma- chinery of Alabama; and finally concluded "that reUef from a great pohtical wrong, if done as alleged, by the people of a state and by the state itself, must be given by them or by the legislative and political departments of the Government of the United States."^ — '"- * Mr. J. C. Rose, in the Political Science Review, for November, 1906, p. 20. 2 Giles V. Harris, 189 U. S. R., 474- 'On this question, see E. G. Murphy, Problems of the Present South. CHAPTER XXIII POPULAR CONTROL IN STATE GOVERNMENTS More than half a century ago Carlyle said that whoever had occasion to write or speak in that day must take account of the fact that democracy had arrived; and an eminent English pub- licist of our time, Mr. G. Lowes Dickinson, has restated the doc- trine in a little more concrete form when he says, " Governments in every civilized country are now moving towards the ideal of an expert administration controlled by an alert and intelligent pubHc opinion." The awakening of this alert and intelUgent pubUc opinion is the problem of education in its broadest sense; but in order to make this opinion effective in controlHng legis- latures and executives it is necessary to devise electoral machinery which will work with as Uttle friction and waste of public spirit as possible. Tke Amending System As we have seen, the metes and bounds of state government are set in the constitution, and to enable popular will to alter this fundamental law from time to time, as new conditions arise, some regular legal process of amendment is indispensable. The exact method varies in character and operation from state to state, but there are certain general principles and tendencies which are now well established. I. In the first place, about two- thirds of the states ^ provide for amendment by a convention composed of delegates chosen by the voters, and many constitutional lawyers hold that the legislatures of the remaining states can call conventions under their general legislative powers. A few states, including New York, provide that the question whether a constitutional con- 'All except Arkansas, Connecticut, Indiana, Massachusetts, Mississippi, New Jersey, North Dakota, Pennsylvania, Rhode Island, Tennessee, Texas, Vermont, and Louisiana. See Professor J. W. Garner's article in the Ameri- can Political Science Review for February, 1907. 458 Popular Control in State Governments 459 vention shall be held must be referred to popular vote at stated intervals; and New York also gives the legislature the power to submit the proposition to call a convention at any time it may see fit. 1V[r>]-f tVtan nnP-V>a1f fif tViP statp';^ Vinwpvpr m^rply authorkfi^he legislature to dpfpi-jpinp, at it^ Hkr^-p^j^^n, whffn a__cpnstitii tional revision is advifi^hlp, submit the question to popular vote, and on approval make provision for the election of delegates. Most of these constitutions require an extraor- dinary majority in the legislature before the proposition of call- ing a convention can be submitted to the electorate; and some of them, in addition, require the approval of a majority of all those voting at some election.^ Wherever these two provisions are found in conjunction, it is well-nigh impossible to amend the constitution. Very few of the state constitutions that provide for amend- ment through the convention system are explicit as to the methods by which the delegates shall be apportioned and elected. In this regard the constitution of New York is more satisfactory than that of most other states because it goes into greater detail. It provides that three delegates for each senatorial district and fifteen delegates-at-large shall be chosen by the voters; it pre- scribes the time at which the delegates shall convene; fixes the quorum at a majority; makes some provisions as to procedure; and concludes with the requirement that the constitution or amendments adopted by such convention must be submitted to popular ratification. II. The second general method of amendment, to be found in all states except New Hampshire, including those which have the convention system as well, is through legislative action ratified by popular vote. In several "Of the states, as widely separated as Illinois, Kansas, Washington, California, and Missis- sippi, two-thirds of all the members elected to both houses of the legislature are required to initiate an amendment. A few states, among which are Florida and Ohio, fix the majority at three-fifths ; while New York,^ Indiana, Minnesota, Wisconsin, ^ Only two commonwealths, Georgia and Maine, authorize the legislature by concurrence of two-thirds of both houses to call a convention without referring the question to popular vote. ^Readings, p. 411. In 1910 a proposition was introduced into the New York legisUiture providing that a two-thirds vote of both houses (and a repeti- 460 American Government and Politics Tennessee, and some other commonwealths require only a simple majority. In about one-third of the states, including Massa- chusetts, New York, South Carolina, Vermont, Indiana, and Oregon, the constitution provides, in addition, that an amend- ment proposed by one legislature must be approved by the succeed- ing legislature before being submitted to the people. It is the common practice now to require an approval of only a majority of the popular vote cast on the proposition; but a few common- wealths stipulate that an amendment must receive a majority of all the votes cast at some state election in order to become a law. III. The third mode of amendment, that of the initiative and referendum, is to be found in several states.^ For ex- ample, an amendment to the constitution of Oregon, ratified in June, 1902, expressly reserves to the people the power to pro- pose amendments to the constitution and to approve or reject the same at the polls independent of the legislative assembly. It provides that eight per cent of the legal voters may propose an amendment by petition, and if the proposal, on its submission to popular ratification, receives a majority of all the votes cast thereon, it becomes a part of the fundamental law of the state. A somewhat similar method is in force in Oklahoma, but fifteen per cent of the voters must sign the petition to initiate a consti- tutional amendment, whereas only eight per cent are required to propose any ordinary legislative measure. tion of the process) should be required to submit a constitutional amendment to the voters, and that for ratification an amendment must receive a majority vote of the electors voting for members of the legislature. In support of the measure, Mr. Dana, who introduced it, said: " For some time past, amend- ments to the Constitution have been passed by a very small vote in proportion to the total vote cast. At the last election only 81,517 votes out of a total vote of 318,035 in the City of New York, were cast for the constitutional amend- ment receiving the greatest number of votes, while in the rest of the state, out of a total of 702,965 votes, only 290,795 were cast for the amendment. This does not by any means express the will and desire of the people. " The proposal was later modified to the effect that any amendment must be approved by at least 30 per cent of the vote for assemblymen. ^ For the Oklahoma system, see Readings, p. 413. i-JM^ Popular Control in State Governments 461 The Initiative mid Referendum The participation of the people in the making of constitutional law is not only on the increase/ but there is also a decided tendency to extend the power of the voters to ordinary legis- lation as well. Indeed, the constitution of Oklahoma provides that the style of all bills shall run " Be it enacted by the people of the state of Oklahoma." As we have seen, the practice of even submitting constitutions to popular ratification was not one of the original devices of our constitutional system, only three of the eighteenth- century constitutions being submitted to the electorate for approval or rejection. Slowly, however, the idea came to be accepted that voters, in a final analysis, had the right to pass upon their own fundamental laws. The New York constitution of 182 1 was re- ferred to the electorate, and it further provided that amendments should Ukewise be submitted to the voters after having received legislative approval. By the middle of the nineteenth century the doctrine of the constitutional referendum was fairly fixed, and most of the constitutions since 1850, excepting those of Delaware (1897), Mississippi (1890), South Carolina (1895), and Virx- :ution, the sheriff or one of his deputies takes possession of the * Readings, p. 491. ^ Unanimous verdict is not required in all cases in all states. Readings, 88. 566 American Government and Politics defendant's property and sells enough at auction to pay th amount of the judgment to the plaintiff and his own charges Of course, if the defendant should be a man without property the plaintiff has no redress. In Utigation over title to real estate however, the usual judgment is that the plaintiff enter upon th premises. If the defendant then resists the plaintiff, he ma] be evicted by force by the sheriff. In equity cases the decision of the court is called the decree It does not ordinarily award money damages, but orders th( defendant to do or not to do something. The decree may, fo instance, command him to carry out his part of a contract anc convey to the plaintiff land which he agreed to sell to him, o: it may enjoin him from maintaining a nuisance, such as usin| soft coal in his furnace. In fact, a decree in equity may tak( on any one of innumerable forms, but it always is in essence i command to do, or an order not to do, something. If the de fendant fails to obey the decree, he is guilty of a contempt o court, and may be fined or imprisoned until he complies witl the order. After the case is decided, the losing party may appeal (a) because of errors of law committed by the judge or (b) or the ground that the verdict was contrary to the weight o evidence. The side that loses on the appeal may sometimes~carr} the matter still higher, until the case finally reaches the highes court of the state or of the nation.^ The highest court usualb passes only on questions of law.^ If the highest court which the case can reach affirms the judg ment of the trial court, that ends the Utigation. But if th judgment is reversed, the case is usually sent back for a neA| trial.^ Then the party that loses on the second trial may agai compel his adversary to run the gauntlet of the appellate court because of alleged errors committed in this trial. If the jud^ ^For the conditions of appeal to federal courts, see above, chap xv. ^The appellate courts always consist of several judges, and the opinion each case is written by one of them. The opinions of the highest court each state, and sometimes those of some of the inferior courts, are pubhsh« and become precedents for future decisions. If one or more of the judg disagree from the opinion of the majority of the court, a dissenting opinic may be handed down. In most states there are special reporters, whci duty consists in publishing the official reports of the decisions of the cour 3 See below, p. 567. The Judicial System 567 ment is again reversed, a third trial must be had and the same process may be repeated. If the party that loses at each stage desires to appeal, there is no way of ending the Utigation until some judgment of the trial court is affirmed on appeal. In some instances this freedom of appeal results in a practical denial of justice. Thus there is one case on record in New York which was in the courts for twenty years. In 1882 a brakeman who was injured while in the service of a railroad brought suit against the company.^ In 1884 he recovered $4000 damages, but two years later the verdict was reversed on appeal. On a new trial he got a verdict for $4900. This was appealed to two courts successively. The first affirmed and the second reversed the judgment. The company was successful at the third trial in 1889. Two appeals by the brakeman followed, the court of last resort deciding in his favor in 1897. The case was then tried for a fourth time, and the brakeman recovered $4500. The company then appealed and met with success. A fifth trial was necessary, and the jury awarded the plaintifif $4900 damages. The judgment was again set aside on appeal. A sixth trial followed with the same result. In 1902 the seventh and last trial took place. The plaintiff recovered $4500. " The company again appealed, but was unsuccessful. This finally put an end to the litigation. H.This is, of course, an extreme case and similar cases are rarely found in our legal history. Appeals are generally taken only when the counsel in the case feels that there is a fair chance of success or of wearing out the opposing party. A majority of appeals are unsuccessful, and it is only a small minority of cases that have to be tried more than once. Nevertheless, the freedom of appeal and the consequent law's delay have been made the subject of severe criticism.^ Delays in civil cases are far more frequent than in criminal cases, and, as has been truthfully remarked, often amount to a denial of justice. But, on the other hand, it is hardly practicable to re- strict the freedom of appeals without making arbitrary rules that would be bound to work injustice at times. To allow ap- peals only in controversies involving large amounts would be * Baldwin, The American Jttdiciary, pp. 366-367. ^Readings, p. 500. 568 American Government and Politics undemocratic and give unjust privileges to wealthy litigants.] Moreover, cases that are of comparatively trifling pecuniary^ value sometimes involve legal principles of great importance] that should be passed upon by the higher courts. It has been suggested that appeals should not be made a matter of right, as they are to-day, and that no appeal should be allowed unless permission is granted by the trial judge or by the appellate court. However, it is pointed out that such a system would be hkely to result frequently in a denial of' the right of appeal in cases in which injustice had been done and should be righted by a higher tribunal. Generally, when an appellate court reverses a judgment, it has the power to enter a final judgment for the other party. This power is rarely exercised, however, and the case is usually sent back for a new trial. In some instances, a new trial is in- evitable, as when the proof of essential facts has been shut out at the trial or damages have been assessed on an improper basis. But very often the appellate court has sufficient data on the record before it to make a final disposition of the case. If this were done whenever it is possible, one of the largest sources of delays would be aboHshed without any revolution in our legal system. Criminal Law ^ We have briefly surveyed the principal wrongs against which the state protects the individual, and have examined the methods for redressing them. We must now consider another class of wrongs — pubHc wrongs, or wrongs against the state or com- munity. Wrongful acts included within this class are known as "crimes," and are punished by the state. While in most cases these acts primarily harm some person, they are also regarded as injuring the state, because the state has an interest in the safety of the lives and property of its citizens. Inasmuch as a criminal act may at the same time contain the elements of a civil injury, a person guilty of a crime may lay him- self open to a suit for damages as well as to punishment. Thus if one person assaults another, he may be prosecuted by the state as a criminal and also sued for damages by the injured party. ^ Reference : May, Criminal Law. The Judicial System 569 All crimes are divided into two classes; felonies and mis- demeanors. The former includes all graver offences, generally those punished by death or by confinement in a state's prison. All lesser offences constitute the second class. They are or- dinarily punished by fines or imprisonment in a penitentiary or county jail for comparatively short terms. ^ The principal felonies are murder, manslaughter, arson, burglary, robbery, and larceny. Murder is the intentional, and manslaughter the unintentional, kilHng of a human being. In some states murder is divided into degrees according as it is premeditated or unpremeditated. Manslaughter may take any number of forms and sometimes is also divided into degrees. Thus if a person dies as a result of a blow which was not in- tended to cause death, or if he is run over and killed by an auto- mobile because of the negUgent driving of the chauffeur, or if he meets his death in a railroad wreck brought about by the failure of the proper employee of the company to give the re- quired signals or set the switch, the act in each case consti- tutes manslaughter. Intentional killing in a sudden heat of passion caused by adequate provocation is also generally re- garded as manslaughter and not murder. Arson is wilful and maHcious burning of a dwelling-house. Any incendiarism, however sHght, is sufficient to constitute the crime. Burglary consists in breaking and entering into the house of another with the express intention of committing some felony therein. It makes no difference whether the person actually commits some crime within the building: the break- ing and entering is itself burglary. Robbery is taking another's property from his person or in his presence by force. Picking a man's pocket so that he is not aware of what is being done is not robbery, but larceny; but taking money from a person at the point of a pistol, or knocking him down and then stealing something from him, is punishable as robbery. Larceny is steal- ing the personal property of another. All the various forms of theft and swindling are larceny, and it is often divided into grand and petty larceny, according to the amount stolen, the former being a felony and the latter a misdemeanor. In addition to the felonies enumerated above, many other * Conviction of a felony very often carries with it the loss of the right to vote. 570 American Government and Politics offences are often made felonies. Forgery is generally a felony. It consists in making or altering a written instrument to defraud another. Thus, writing another's signature on a check or changing the amount called for constitutes forgery. Somewhat akin to forgery is the crime of counterfeiting or making false money, which is punishable by the federal government. Kidnapping is usually made a felony. Bigamy, which consists in having more than one wife or husband at the same time, is a felony. So is also the offence of perjury or the wilful giving of false testimony while testifying under oath in a judicial pro- ceeding. Other offences are misdemeanors. They vary greatly in enormity and many of them differ in the several states. Mayhem, though a felony in some states, is generally a misdemeanor. It consists in violently depriving another of the use of any of his members or often of any permanent physical disfigurement inflicted by force. Bribery is also a misdemeanor, though at times it is made a felony. So is knowingly receiving stolen goods. MaHcious hbel, which consists in defaming another in print or writing, is a crime and is punished as a misdemeanor. Assault and battery, disturbance of the peace, violations of the pure food laws, the use of false weights and measures, spitting on the floor of a street car or other pubUc conveyances, and other miscellaneous offences, are misdemeanors. In fact, the whole mass of minor offences is included in this group. It is not alone for offences actually committed that punish- ment is inflicted. It often happens that a person conceives the design of committing a certain crime and takes some steps toward carrying out his purpose, but is, for some reason, prevented from effecting it. In that case he is punished for the attempt to commit the crime. Of course, a less punishment is inflicted for an unsuccessful attempt than for the crime itself. Thus a person intending to kill another might shoot at him, but miss his aim; he is then guilty of an attempt to commit murder. Not only the principals who actually commit a crime are punishable for it ; their accompKces are liable as well.^ Ac- complices are of two classes: accessories before the fact and accessories after the fact. The former category includes any one who in any way advises, encourages, or assists in the prepara- ^ Readings, p. 449. I The Judicial System 571 tion for the crime which is afterward committed. In some states, accessories before the fact are put in the same group with principals and are punished as such. An accessory after the fact is one who assists in the escape of the offender after the crime has been committed, or helps to cover up the crime. To be convicted of a crime, a person must have a criminal intent. This is ordinarily presumed. But a small child can- not have such an intent and his acts do not constitute crimes. An insane person is also not responsible for his acts. But legal tests of insanity are much stricter than medical tests, and often persons considered lunatics by medical men are held to be sane in law. An intoxicated person is responsible for his crimes, volimtary drunkenness being no excuse. Criminal Procedure While civil actions are brought by the injured party, criminal prosecutions are conducted by a prosecuting officer in the name of the state. A criminal proceeding ordinarily begins with the arrest of the offender. The arrest may be either by warrant or not. A poHce officer or a private individual may make a com- plaint before a magistrate who will thereupon issue a warrant or order of arrest against the person so accused. But in many cases an arrest may be made without a warrant, particularly when the crime is committed in view of the person who appre- hends the criminal, or when the officer making the arrest knows that a felony has been committed and has reasonable grounds for beUeving that the one whom he is taking into custody com- mitted the offence. The exact rules defining the cases in which an arrest may be made without a warrant vary in the several states. After a person is arrested, he is brought before a magistrate^ as soon as possible. The proper official examines the case and hears whatever evidence may be produced; but neither at this examination nor at any subsequent stage of the proceedings may the accused person be questioned, unless he himself desires to testify. This is one of the cardinal principles of the English and American criminal procedure and is one of the main distinctions between the Anglo-American system and that in vogue on the * For the writ of habeas corpus, see above, p. 302. 572 American Government and Politics continent of Europe where the accused may be and usually is interrogated.^ If the magistrate before whom the prisoner is arraigned finds that there is probable cause for holding him for trial, he commits him to jail imtil further proceedings are had, at the same time allowing him to give bail if he so desires, unless the accusation is one of murder. By giving bail is meant that one or two in- dividuals, called sureties, sign a bond obUgating himself or them- selves to pay a certain sum of money to the state or county if the accused person fails to appear when his case is called for trial. ^ If bail is given, the person is released. The case (unless it is a petty offence) is now ready to enter upon the next stage of the proceedings, namely, indictment by the grand jury, before whom the matter is presented by the prosecuting attorney. The grand jury is one of the oldest in- stitutions of the common law and for a long time it was cherished as a safeguard against needless and oppressive prosecutions. It is a body of men drawn at the beginning of each term of court from qualified inhabitants of the county. It passes on all ac- cusations, and if it decides that there is sufficient evidence which, if unrebutted, will probably convict the accused, it finds an "indictment" against him and the case will then go to trial. If the grand jury determines that the evidence is insufficient, the charge is dismissed and the prisoner is released from jail or his bondsmen are discharged, as the case may be. The proceedings of the grand jury are secret and it hears only one side of the case, — the prosecution. The evidence is generally presented by the prosecuting attorney, who also pre- pares the bill of indictment, and if the grand jury decides to indict, it indorses the fact on the bill. The decision of the grand jury need not be unanimous, as is the case with petty or trial juries, but a majority vote of the whole body is sufficient. The grand jury is not, limited to passing on matters presented to it by the prosecuting attorney, but may undertake investi- gations of its own. It does not often do so, however. While cases usually begin with the arrest of the accused, it frequently ^ These principles are now often most grossly violated in the United States by the " third degree " practice of " sweating " prisoners. *The amount of the bond varies with the enormity of the offence the probability of escape. ice an^l J The Judicial System 573 happens that an accusation is presented first before a grand jury, and in that event, of course, there is no preliminary examina- tion before a magistrate. In some states indictment by grand jury, even in serious crimes, is not necessary to bring a person to trial, but the same result is accomplished by "information" ^ ; that is, by an accusation brought by the prosecuting attorney. This procedure gives more influence to the prosecuting attorney, as he then has the sole power to determine whether a case should be brought to trial or not. Prosecution by information is, however, generally em- ployed for minor offences. After a person is indicted, he is brought before the court, the charge is read to him, and he is directed to plead. If he pleads guilty, no further proceedings are had,^ and the judge imposes sentence either at once or at some later date. If he pleads not guilty, a trial is accorded to him. When the date set for the trial arrives, the cause is called before the judge holding the court. The first step consists in impanelling a jury of twelve men. The various jurors summoned are examined in turn by the prosecuting attorney and the defendant's counsel, until finally the jury is selected. The process is at times a long one, particularly in important and sensational cases. Any juror who states that he has formed a definite opinion about the case is incompetent to serve, and this rule excludes a good many men in a case which has attracted much attention and has been discussed by newspapers. In addition to this, each side may challenge a certain number of jurors peremptorily without giving any reason.^ After a jury is thus selected, the prosecuting attorney opens his case, inasmuch as the defendant is presumed to be innocent and the burden is on the prosecution to prove him guilty. In his opening speech, he generally describes the circumstances under which the alleged crime was committed and states by what evi- * Readings, p. 88. ^ A man cannot plead guilty of murder in the first degree, however, for some form of trial must be employed in such a serious case. 3 The old process of selecting jurymen has been severely criticised within recent years on account of the great expense and waste of time. In the Gilhooly case in Chicago it took three months to secure a jury and the costs of that process to Cook county are estimated at $i 8,000. 574 American Government and Politics 1 Dros^" dence he expects to prove the guilt of the prisoner. The pros( cuting attorney then summons his witnesses one by one, and examines them about the facts of the case. As he finishes with™ each witness the defendant's attorney may cross-examine. ^ The questions that may be asked of the witnesses are Hmited by rules of evidence, so that no irrelevant matter may be brought in, and the witness may be confined to testimony about the facts with which he is personally acquainted. The purpose of these rules is to prevent the jury from being misled or prejudiced / by facts that are not closely connected with the case. If either lawyer believes that the other is asking an improper question, he may object, and the judge then decides whether the question should be allowed or not. If the lawyer against whom th^— court rules is dissatisfied, he takes an " exception. " jH| After the prosecution completes the presentation of its side of the case, the attorney for the prisoner presents the other side in about the same manner. He first makes an opening statement to the jury, and then calls and examines his witnesses, one by one, the prosecuting attorney being given a chance to cross- examine as soon as each direct examination is finished. The prisoner is not questioned at any stage of the trial unless he wishes to go on the stand as a witness in his own behalf, and in that event, the prosecuting attorney may cross-examine him in the same way as all the other witnesses for the defence. After the taking of testimony is ended, the prosecuting and defending counsel make speeches to the jury; and upon their completion, the judge delivers his charge. He sums up the "evidence brought out by each side, and states to the jurors what is the law applying to the case before them. Thus, he tells them what must be shown in order to constitute the crime with which the defendant is charged, describes the different degrees of that crime (if the particular offence happens to be divisible into de- grees), and states how much proof is necessary. The jury must feel convinced beyond a reasonable doubt that the defendant is guilty in order to convict; otherwise it must find a verdict ^ of not guilty. When the judge finishes his charge,* the jurors retire to deliber- ate. They must, as a rule, arrive at a unanimous verdict, and ^ If either lawyer is dissatisfied with any part of the charge he again " excepts." The Judicial System 575 often that takes many hours.^ If they are absolutely unable to agree, they are discharged, and the prisoner has to be tried again. When the jury comes to an agreement, it returns to the courtroom and the foreman announces its verdict — guilty or not guilty. If the defendant is found not guilty, he is dis- charged at once. If he is convicted, the judge imposes sen- tence either immediately or at some future date. The punishment for most crimes is imprisonment. For minor offences a fine is often imposed, and sometimes the sentence consists of a combination of both. The term of imprisonment varies from a short confinement in the county jail or penitentiary to imprisonment at hard labor in a state's prison for life. The law generally lays down minimum and maximum limits of punish- ment for the various offences, and the trial judge has full dis- cretion in imposing any punishment within those Hmits. In some southern states convicts are compelled to work in the open air in chain-gangs. At times they have been turned over to private employers to work for wages paid to the state; but this system has given rise to great cruelty and is being abolished be- cause it is revolting to an enlightened public opinion. For good behavior the prisoner usually receives a substantial reduction in the term of his sentence, and it often happens that he is pardoned by the governor before his term ends, if there are extenuating circumstances warranting mercy.^ A new system of punishment known as the "indeterminate sentence" has been introduced in some states in recent years. Under this method the judge imposes a minimum and maximum term, and whether the prisoner is released at the close of the minimum term or is kept in prison longer, possibly until the expiration of the maximum term, depends on his behavior and on the promise of reform that his conduct shows. If he is liberated before the close of the maximum term, he is generally kept on probation for a while and is obliged to report to the prison officials at stated intervals, or to special probation officers. For murder the death penalty is infficted in most states, and in a few commonwealths it is also imposed for some other crimes. ' In a few states in the West a verdict by nine or ten out of the twelve jurors is allowed in some cases; Readings, p. 88. ^For an excellent illustration, see Readings, p. 448; on the pardoning power, above, p. 498. 576 American Government and Politics Execution is generally carried out by hanging, but in a small number of commonwealths electrocution has been substituted for hanging, as a more humane and less painful method of putting to death. There are a few states — Maine, Michigan, Wisconsin, Rhode Island, and Kansas — in which capital punishment has been entirely abohshed. Opponents of the death penalty claim that the fear of death does not diminish the percentage of crimes, and that juries are reluctant to convict where they know that the penalty will be death, often convicting of a less degree so that the prisoner may be punished by imprisonment. Although cases in which innocent persons are, by a miscarriage of justice, put to death are exceedingly rare, still a few are on record, and a mistake may be made at any time on account of the circumstan- tial character of the evidence frequently admitted. Finally, the reformation of the offender, as well as the protection of society — not retaUation — is the end of enlightened punitive justice, and the death penalty is altogether inconsistent with such a humane notion. When the prisoner has been found guilty and sentenced, his resources are not yet at an end. He may appeal to a higher tri- bunal if any mistakes have been made by the trial judge. Any alleged error in the admission or exclusion of evidence or any in- correct statement of the law applicable to the case made in the judge's charge, is ground for reversal. If the appeal is decided against the prisoner, he may, in some instances, carry the case still higher, until finally it is passed upon by the highest court of the state or by the Supreme Court of the United States, if a federal question is involved. If he wins on the appeal, a new trial is usually granted, and the case is sent back for a rehearing to the court in which it was originally tried. * If he loses his appeal, the defendant must acquiesce in the sentence, unless the governor can be persuaded to pardon him. A great deal of criticism has been evoked against the liberahty of the system of appeals in criminal as well as civil procedure and the consequent failure of justice. While it cannot be denied that verdicts are too frequently reversed for purely technical reasons, which could not have possibly injured the defendant, the evil is not as extensive as it is often supposed to be. Thus in New York County, during the five years from 1898 to 1902 inclusive, about 11,000 persons were convicted of felonies, of whom less The Judicial System 577 than nine in a thousand took an appeal; of these, less than a third were successful.^ But the cases that attract public notice be- cause of their sensationalism are generally the ones in which delays incident to appeals occur. In a good many instances in which verdicts have been reversed, obvious injustice had been done to the appellant. This is particularly true where evidence offered in his defence has been wrongfully excluded by the trial judge, where the prosecution has failed to make out a prima facie case and show facts sufficient to constitute the offence, and where the trial judge has made a serious mistake in his charge to the jury. Nevertheless, in a considerable number of reversals, the errors are purely technical and do not involve at all principles of strict justice. The remedy, however, does not consist in a narrow limitation of the system of appeals. If the prisoner has no absolute right to appeal, there will be cases of wrongs committed at the trial which will never be righted. But the appellate courts should adopt the practice of refusing to reverse a verdict if the errors complained of are not of such a nature as could have prejudiced the defendant in the eyes of the jury. Finally, a good many of the delays and technicalities of legal procedure will be avoided if at the trial the judge exercises a greater amount of control over the proceedings, as is done in England, and to a less extent in the federal courts.^ ' Harvard Law Review, Vol. XVII. ^Taft, Four Aspects of Civic Duty, p. 50. ^ CHAPTER XXVII THE ORGANIZATION OF MUNICIPAL GOVERNMENT Mr. Bryce, in his chapter on the working of American city governments, remarks that "there is no denying that the gov- ernment of cities is the one conspicuous failure of the United States." If we accept this statement even without quaUfication, we must remember the special difficulties which are associated with municipal government in the United States. In the first place, our cities are of recent and rapid development, and are intimately involved with the remarkable and heedless advance of industry and commerce which accompanied the opening up of the country. When Washington was inaugurated, only about one-thirtieth of the population Hved in cities of over 8000, and in a little more than a hundred years one-third of the inhabitants have become city dwellers. It must be remembered, also, that a great portion of the city dwellers are collected from all the nationalities of the globe. The census of cities of 25,000 inhabitants and over, in 1900, showed that no less than 26 per cent were of foreign birth, to say nothing of those who were of immediate foreign descent. In New York City, the percentage of foreign-bom was 37; in Chicago it was 34.6; in Lawrence, Massachusetts, 45.7; and in Woonsocket, Rhode Island, it reached 44.4.^ To this alien group must be added the negroes, who, while numerically insignificant in many northern cities, constitute a large portion of most southern cities — 56.5 per cent in Charleston, South Carolina. To the cities have been attracted also large numbers of the shrewd and ambi- tious inhabitants of the country districts largely in pursuit of eco- nomic gain. ^1 ^ In spite of these astounding figures it must also be noted that the per- centage of aliens is really declining in our cities. See Goodnow, Municipal Government, pp. 25 fif. 578 J The Organization of Municipal Government 579 Thus our cities are really vast conglomerations, composed of peoples of every nationality, and of the keenest and most enter- prising natives; their populations are constantly shifting, besides being augmented by the inflow of foreigners. They are largely without civic traditions; their governments offer unparalleled opportunities for spoils and private gain to the politicians and sharp hunters of franchises and special privileges; and it is small wonder, therefore, that up to the present time the problem of American municipal government has not been solved to the satis- faction of any one. The City and the State Before taking up the study of the structure of municipal govern- ment in the United States, it is necessary to consider the position of the city as a local unit in the government of the state. The American city, in all except a very few commonwealths,^ is largely subject to the state legislature, which creates its charter in the first place, establishes its form of government, fixes its powers, and from time to time imposes new institutions on top of those created under the charter. Thus the city Ues completely at the mercy of the legislature, save where protected by constitutional provisions, and thus municipal affairs are drawn inevitably into the current of state politics. This situation has raised the vexa- tious question of municipal "home rule." ^ It is urged by the champions of municipal home rule — practical autonomy for each city — that the state legislature is unfitted to exercise control over many questions which affect only urban dwellers because it does not have the requisite time to look into the details of city government or the requisite knowledge of the prob- lems of such government, and does not feel the proper responsibil- ity to urban constituencies. Owing to the constitutional discrimi- nation against cities in favor of the rural districts,"^ the representa- tives of rural minorities are able to impose upon the cities laws and institutions wholly unsuited to urban conditions. In the next place, it is contended by the advocates of home rule that there are a number of purely city problems , which cannot have any ' Below, p. 583. ^See Goodnow, Municipal Home Rttle, and Deming, The Government of American Cities. ^ Above, p. 520. 580 American Government and Politics considerable interest for the people of the state at large. They say, for example, that the paving and lighting of the streets, the provision of means of transportation, the establishment of waterworks, the maintenance of markets, and many other similar matters, should be left entirely to the determination of the munici- pal voters. To these contentions the reply is made that there are few, if any, purely municipal functions which have no general interest for the state at large.^ If the city wishes to establish waterworks, it must go sometimes, as New York City has gone, a hundred miles or more into the country, and must, therefore, secure water- sheds by a state concession. With the growth of the means of rapid communication, our city populations have spread far beyond the boundaries of municipalities, and the system of municipal transportation accordingly covers far more than the areas under city government. A notable example of this is New York City, which is really the urban centre for a vast area extending fifty miles or more in every direction. Owing to the large number of voters in the municipalities, the integrity of the whole state elec- tion may depend upon the effectiveness with which the municipal police uphold the election laws and secure an honest count. Finally, the tenements, industries, health, and progress of each city are inextricably woven with larger state and even national problems of the land, taxation, natural resources, labor legisla- lation, and social control. Speaking generally, therefore, the state at large has a fundamental interest in the health and well- being of the city dwellers, and accordingly there is hardly a prob- lem of municipal government that is not vitally connected with the larger problems of state government. Indeed, Professor Goodnow has shown, by a survey of the his- torical development of cities, that the whole tendency of modern times is away from that autonomy enjoyed by cities in the Middle Ages. He points out that matters which were once of purely local interest have now become general; that in modern life com- merce and industry have become state concerns; and that it is impossible to determine arbitrarily the point at which state inter- est ends and municipal interest begins. He cites the example of Massachusetts, where the competition of many cities for sources Readings, p. 509. The Organization of Municipal Government 581 of water-supply became so keen that the state had to interfere and assume general control. He also shows that what may be a municipal function in one city may not be in another, citing, as an example of this, Chicago and New York — in the disposal of sew- age Chicago uses one of the rivers which flows through the state, and thus the sewage question becomes a matter of state concern; while New York is differently situated in this regard, owing to the fact that it can discharge its sewage into the ocean. Professor Goodnow concludes: "Municipal home rule, unless those words are usedina very limited sense, has no just foundation in either history or theory until the conditions of city populations are very differ- ent from what they are at present. Municipal home rule without limitation is a shibboleth of days that are past. On account of the reverence in which it is held, it is often used by those who have not the true interests of urban populations at heart, or by those who, while possessing good intentions, perhaps are not sufficiently acquainted with the conditions to which they would apply it, and certainly do not consider the problem in the light of the history of western municipal development." ^ It is clear, therefore, that the limits of municipal government cannot be fixed for any state or any city by a general rule of law; but it is also clear, in the light of great abuses which cities have suffered at the hands of our state legislatures, that some check must be placed upon the power of the legislature to control munici- pal affairs. Several plans have been devised to meet this difficult problem. I. The constitutional convention of Pennsylvania, in 1873, sought to solve the problem by adopting the rule that the state legislature should not pass any local or special laws regulating the affairs of counties, cities, townships, wards, boroughs, or school districts; but this restriction was found to be entirely too narrow, and when the general assembly sought to legislate for the city of Philadelphia alone by passing a law which should apply to all cities having a population of at least 300,000, the court pronounced this action constitutional. The court held that it could not have been the intention of the f ramers of the constitution to bolt and rivet down, by fundamental law, the machinery of state govern- ment in such a way that it could not perform its necessary f unc- Municipal Government, p. 94. 582 American Government and Politics tions. "If the classification of cities," said the court, "is ii violation of the constitution, it follows of necessity that Philai delphia, as a city of the first class, must be denied the legislation^ necessary to its present prosperity and future development, or that the small inland cities must be burdened with legislation wholly unsuited to their needs. For if the constitution means what the complainants aver that it does, Philadelphia can have no legislation that is not common to all other cities of the state. . . . We have but to glance at this legislation [relating to quarantine, pilotage, trade, inspection, etc;] to see that most of it is wholly unsuited to small inland cities and that to inflict it upon them would be little short of a calamity. Must the city of Scranton, over a hundred miles from tide- water, with a stream hardly large enough to float a bateau, be subjected to quarantine regulations and have its lazaretto? Must the legislation for a great commer- cial and manufacturing city with a population of more than a million be regulated by the wants or necessities of an inland city of 10,000 inhabitants? " 2. Recognizing the necessity for putting limits to the power of the state legislature to control cities and at the same time recog- nizing the imperative necessity for special legislation. New York has sought to give the cities a voice in legislating upon the mat- ters especially affecting them.^ This has been done by a classifica- tion of the cities of the state into three groups according to their populations and by providing that special laws — that is, those relating to a single city or less than all the cities of a class — must be passed in conformity to the following principles: When any such special law is passed, it must be transmitted to the mayor of the city affected. In cities of the first class (of over 175,000 in- habitants) it must have the approval of the mayor, and in cities of the other two classes the approval of the mayor and city council, before it can become a law. If the bill is accepted by the proper municipal authority, it is transmitted to the governor of the state, who may veto it or approve it, as he sees fit. If the bill is not approved by the local authorities, it is transmitted to the branch of the legislature in which it originated, and may become a law if it is repassed (at that session) by the ordinary majority in both branches. ^ See Readings, p. 512, on this important topic. The Organization of Municipal Government 583 This constitutional provision is further elaborated by a statute which provides that when any such law is transmitted to a city, the authority which has the right of approval or rejection must hold a pubHc hearing on the measure, after having given due notice by publication in newspapers. The design of this is to afford to the friends and opponents of the measure a right to state their reasons for its approval or rejection. This method, while it does not vest the right of final decision in the city, does guard against hasty legislation, assures publicity, and gives to the authorities of the city some weight in determining the course of state legisla- tion. Nevertheless it does not cure the evils of special legislation. 3. A third method of controUing the state legislature was pro- vided by the Missouri constitution of 1875, which gives each city having a population of more than 100,000 inhabitants the right to frame a charter for its own government consistent with and subject to the constitution and laws of the state. It stipulates that such a charter shall be drafted by a board of thirteen free- holders elected by the qualified voters of the city, then submitted to the approval of the voters, and go into effect on receiving four- sevenths of the votes cast at the general or special election at which it may be submitted. It is provided further that all such charters shall include in the plan of government a mayor and a council of two houses, one at least elected on a general ticket.* This plan, with some modifications, has been adopted by Cali- fornia, ^ Oregon, Washington, Minnesota, Colorado, Oklahoma, and Michigan. "Probably this is the most effective method of protecting cities against legislative interference," says Professor Goodnow. "In their interpretation of these constitutional pro- visions, however, ... the courts hold that the privilege of framing its own charter of locaL government does not affect the functions of government which, while discharged in the city/ interest the state as a whole. A provision of this sort does not, therefore, prevent the state from interfering with the police force or the educational system of cities, since these branches of admin- istration are regarded as state rather than local in character." ^ The California constitution, however, places the control of * There are also some special provisions for the city of St. Louis. ^ See Readings, p. 511, for the provisions of the California constitution on this point. ^ Municipal Government, p. 84. 584 American Government and Politics police, police courts, education, and elections within the com- petence of the city charter-making powers. Since this amend- ment was adopted as 'a check upon legislative interference in those matters it is to be assumed that the legislature is excluded from those fields if the city sees fit to preempt them. 4. Among the constitutional methods devised for checking state legislatures and at the same time permitting desirable special legislation for cities, that embodied in an amendment to the Illinois constitution, adopted in 1904, is important because it has proved effective. That constitution has the usual pro- vision against the incorporation or organization of cities, towns, or villages, or changing or amending their charters by local or special law. To permit the legislature to give Chicago special treatment the constitution was amended in 1904 so as to permit the legislature to pass "all laws which it may deem requisite to effectually provide a complete system of local municipal gov- ernment in and for the City of Chicago." However, it placed a check upon this power of special legislation for Chicago by providing that no such law can take effect until approved by a majority of the legal voters of the city voting thereon at any general, special, or municipal election. Under this provision the people of Chicago rejected a special charter passed by the legislature and submitted in 1907. This charter was, in the main, the work of a commission of Chicago citizens appointed for that purpose, but it was made obnoxious when it reached the legislature by the insertion of several objectionable fea- tures. This legislative action caused the rejection of the charter when submitted to the people. So far as one can judge, these constitutional provisions enable the people of Chicago to escape objectionable special legislation, while the way is left open for special legislation acceptable to them. They may not be able to get what they want, but they can at least escape improper legislation ninless it is embodied in gen- eral laws.^ The City Council ^ Turning now from the position of the city in the state to the organization of municipal government,we are confronted by a be- ^ For this statement I am indebted to Professor A. R. Hatton 2 See Fairlie, Essays in Municipal Administration, chap. vii. J The Organization of Municipal Government 585 wildering variety of institutions that seem to defy all attempts at classification or orderly treatment; but certain general features may be drawn out by the comparative process. Every city has a legislative body of some form and endowed mth some powers of local government. In ^he beginning of our history, the city council, following the old English plan", was a unicameral body with two classes of members, common council- lors ajid aldermen;^ but after the Revolution many states began to model their city governments on the plan of the common- wealth governments by providing a council of two chambers, and indeed nearly all of our important cities have had at one time or another double-chambered councils. They did not prove to be very efficient or successful legislative bodies, however, and the plan has been slowly abandoned in favor of the single-chambered council, so that to-day a large majority of our great cities, includ- ing New York, Chicago, Cleveland, SaiL_Francisco, Cincinnati, Minneapolis, Boston, New Orleans, and Indianapolis have coun- cils co mposed of only one h ouse. Several important cities, how- ever, including Philadelphia, St. Louis, Buffalo, Baltimore, and Louisville have retained the double-chambered council.^ The terms of city councillors range from one year to four years, but are more commonly fixed at two years, as in the city of New York. As a rule, members of the city council are elected by the district ticket; that is, the city is divided into districts or wards, and one representative is returned from each.^ The number of councillors varies greatly. New York has 79, including the presi- dent of the board and the five borough presidents. San Francisco has 18 (elected at large); Philadelphia, 190 in both houses; Chicago, 70; and Boston, 9 (elected at large). Many objections have been brought against the district system, on the ground that the districts are arbitrary divisions, that there is not the same need for local representation in cities which occurs in the state at large, and, furthermore, that the district system does not make any provision for securing the representa- tion of minorities. One of the most notable examples of the way in which the district system may exclude a powerful minority from all share in the city government is the New York election of ^ Above, p. 14. 2 New York, St. Louis, and Baltimore are now engaged in charter revision. ^ Sometimes more than one. 586 American Government and Politics 1892, in which the majority, with a vote of 166,000, elected every member of the council, while the minority, with 100,000 votes, was entirely unrepresented.^ Somewhat analogous conditions have existed in other cities at times, and have led to a demand that provisions be made for mi- nority representation. In the New York constitutional convention of 1894, for example, such a reform was proposed, and in support of this principle Mr. Root said: "I do not know whether this is desirable. There is one thing about it that I can say. It is, that in a great city it is not practicable to secure the same kind and variety of representation by means of cutting the city up into districts which you get wherf you take the different counties of the state, or when you take the different towns of a county, for the reason that locaUty counts for nothing in the city, except in iso- lated cases. Here and there will be a neighborhood which is homogeneous, the people dwelling about a square, the people in a little section of a street; but as a rule, my next-door neighbor is not the man who lives next to me ; he is the man, perhaps, who lives three or four miles away, and whom I meet in business, at .church, at the club, in various enterprises. Locality counts for nothing. The Hues of demarcation between localities do not differentiate representation, and every man elected to a municipal legislature represents the whole city as much as he represents the particular division from which he is elected. So, Mr. Chairman, the only logical way in which to elect representatives would be on a general ticket; but if you elect them on a general ticket, either one party or the other would have the whole, and the only way to secure any variety of representation in the discussion of con- tending interests, in the rectification of the ideas of a majority at conflict with the minority, such as we get in our legislature by electing from different counties, is by means of some plan of pro- portional representation or minority representation." ^ The proposition to provide for this, however, was strongly com- batted on the ground " that the true theory of democratic govern- ment is not in the representation of every crank and every 'ism * ^The system of electing at large will also result in excluding minority representation unless some plan of cumulative voting is devised . (See above, p. 523.) ^Revised Record of the New York Constitutional Convention, Vol. Ill, pp. 560-651. The Organization of Municipal Government 587 in legislative bodies, but in carefully selecting the men and meas- ures which shall conserve the greatest good for the greatest num- ber." ^ It was pointed out also that under a system of minority representation a party possessing a large pluraHty could be out- numbered by a combination of minority factions, and thus re- sponsible rule would become impossible. The argument against the reform prevailed in the constitutional convention. Notwithstanding all the various reforms which have been devised for cities in the United States the municipal council has, generally speaking, declined in its powers and in pubUc esteem.^ Just as the early authority of the state legislatures has been cur- tailed by one restriction lifter another, so the original power of the municipal council has been shorn away by one process or an- other. The state legislatures are increasing the range of their general legislation with regard to sanitation, tenement houses, public health, education, and police; and the extension of this general legislation has naturally curtailed the powers of city councils. Their powers have been further reduced by the creation of separate boards and departments — such as the board of esti- mate and apportionment in New York, which really has entire control over the finances of the city. The former right of appoint- ing municipal officers has been taken away from the council in a large number of cities and vested in the mayor. Furthermore, the general ordinance power of the council is being curtailed, either by positive prohibitions in the charter or by the inclusion of much legislative matter in that instrument. Under these circumstances it is small wonder that the city council has been falling into neglect and inglorious decay. The condition became so notorious in Boston that a committee making an official investi- gation reported that membership in the legislative body of the municipality was a discredit rather than an honor, and that it was difficult to induce representative men to become candidates for either branch.^ In a large number of cities, the inefficiency and dishonesty of the city, council has led to its complete abolition and the substitu- tion of a small board of directors elected at large — a commission with full legislative and administrative powers.^ ^Ihid., Vol. II, p. 172. ^Chicago is a notable exception. See Darning, Government of American Cities, pp. 91 ff. ^See Readings, p. 521. 'See below, p. 598. 588 American Government and Politics However, all those who recognize the evils so prevalent in the city council are by no means convinced that such a branch of municipal government should be abolished. Many eminent pub- licists suggest, in the place of this drastic cure, a complete rehabili- tation of that body. They argue that a deliberative representa- tive assembly is indispensable in city government to bring the sense of the people and their varying interests to bear in legisla- tion; that the insignificant power enjoyed by the city council is largely responsible for the fact that few energetic and capable citizens are willing to be candidates for membership; ^nd also that it is only through a representative common council that party poHtics can be kept out of the administrative offices. "It is plain," says Mr. Dorman B. Eaton, "that a true council is in its nature a non-partisan body because one in which ... all party interests and sentiments of importance will be represented. -To increase the authority of the mayor is, therefore, to increase the power of party in the city government; while to increase the authority of the council is to augment the influence of the non- partisan and independent elements among the people." ^ The Powers of the City Council First among the general powers of the city council may be placed its "poKce power." Unlike the state legislatures, the council is usually restricted rather narrowly in this matter by the terms of the charter, but a proviso is frequently added to the effect that it may exercise the "powers necessary to preserve the peace • and good order of the community and promote the pubUc wel- fare." The board of aldermen or city council ordinarily has the poAver to make, amend, and repeal ordinances relating to healthy parks, fires, and buildings, except in "so far as such power is con- ferred on the heads of departments or on other boards, and not controlled by state or federal law. The aldermanic council may make ordinances relative to beggars, vagrants, iritoxication, fighting and disorder in the streets, pubUc amusements, markets, gambhng, bathing places, suppression of vice and immoraHty, the preservation of peace and good order, the use of firearms and firecrackers in the streets, parades, steam vessels, advertise- ments, circuses, obnoxious business, and other similar matters. It ^ The Government of Municipalities, p. 252. The Organization of Municipal Government 589 must be noted, however, that in New York City, in accordance with the practices adopted in many American cities, the law- making power is really distributed among the council, depart- ments, boards, and single 'officers.' It is in matters of finance that the city council has suffered the mos^ serious decline from its former position, for nowhere in the United States does it enjoy the privilege of imposing general taxes at will. The power of the city to incur debts is also restricted either to a definite sum or to a certain percentage of the assessed valuation of the property. The constitution of New York, for example, provides that no city or county may become indebted for any purpose or in any manner to an amount exceeding ten per cent of the assessed value of its real estate subject to taxation; but in 1909 an amendment was adopted enabling New York City to subtract from its total debt debts incurred for certain self-sustaining public improvements. /:/ Even such power of laying-taxes and incurring debts as the city possesses is, in an increasing number of instances, being taken away from the city council.^ In New York, for example, the bud- get of the city, which determines the amount of taxes which shall be raised, as well as the different objects to which the revenue shall be devoted, is prepared not by the board of aldermen but by the board of estimate and apportionment, composed of the mayor, comptroller, president of the board of aldermen and the presidents of the five boroughs into which the city is divided.^ The estimates contained in the budget as drafted and approved by the board of estimate and apportionment may be reduced but they cannot be increased by the board of aldermen, to whose ap- proval they must be submitted. In the commonwealth of New York the city also has no power to determine the character of the taxes laid ; and this is the gen- eral rule throughout the United States. In most instances the city is permitted to add a certain percentage to the amount levied ^ On the way in which the original sanitary code of New York was drafted and adopted by the board of health, see Eaton, The Government of Munici- palities, p. 263. 2 Below p. 604, 3 The mayor, comptroller, and president of the board of aldermen have three votes each, the borough presidents of Manhattan and Brooklyn two each, and the borough presidents of the Bronx, Queens, and Richmond one vote each. 590 American Government and Politics on property for state purposes; but in New York, owing to the separation of state and local revenues/ each city must derive its revenues principally from taxes on real estate and personal property. In former times the city council enjoyed a large power in grant- ing franchises for the construction of municipal utiUties, such as waterworks and lighting systems, and in regulating public service corporations. It has been found by practical experience, how- ever, that many city councils have been guilty of corrupt practices in the exercise of this power and it has, therefore, been withdrawn in many instances. Where it is not exercised by the state legislature it is frequently vested in boards or commissions, such as the board of estimate and apportionment in New York. As the result, the power of the [city council is often 'reduced to issuing petty licenses to tradesmen and to regulating only minor matters relative to public utilities. In a majority of cities, however, it still retains a considerable measure of power over franchises ; but in many of them it is subject to a referendum to the voters.^ The city council has also been shorn of its former authority over the administration of the city, and it stands to-day in a sharp contrast to the English council which elects the mayor and through various committees superintends the several departments of municipal administration. In the United States, the city council seldom has any large appointing power and its influence over the administration is of slight importance. In general, the heads of departments and the municipal boards are either elected by popular vote or appointed by the mayor, sometimes with the approval of the council. The council furthermore does not enjoy the right of removing officers and thus controlling the general direction of the executive department. To bring the administration and the council together, however, the charter of New York provides that the heads of administra- tive departments shall have seats in the board of aldermen, must attend when required, must answer questions on due notice, and may participate in the discussion without enjoying the right to vote. The board of aldermen is charged with seeing to the faith- ful execution of laws and ordinances of the city, and it may ^ Below, p. 715. 2ggiow, p. 597. d The Organization of Municipal Government 591 appoint committees to examine the books and records of any department or officer. In practice, though, it cannot be said that the board of aldermen of New York enjoys any large authority over the administration. I Finally, the ordinances passed by the city council are subject to the mayor's veto. In New Ybrt City, an ordinance vetoed by the mayor can go into effect only when repassed by two- thirds of the council, or by three-fourths if it involves expenditures, debt creation, or assessment, and the mayor's veto on grants of fran- chises, such as the council may make, is final. The Mayor The city has a mayor or chief magistrate who is, except in a very few instances, elected by popular vote. His term of service varies from one to five years — annual election being most com- mon in New England. The term in Jersey City is five years, in New York City, Chicago, and Boston, four years, and in most other important cities, -such as Baltimore, Cleveland, Denver, and San Francisco, it is two years. The salary of the mayor varies from a few hundred dollars in the smaller cities to $15,000 a year in New York — an amount one-third larger than the salary of the governor and the largest paid in any city of the United States. The powers of the mayor extend to legislative, administrative, and financial matters. Like the governor of the state, it is his duty to communicate at least once a year to the board of alder- men a general statement on the finances, improvements, and ad- ministration of the city. He may recommend to the city council, either in his annual message or from time to time, such measures as he may deem expedient. He furthermore enjoys the veto power in most of our cities; and mayors, following the example set by the governors,^ have frequently used the veto, not only to defeat unlawful ordinances, but also to prevent the passage of measures which they deemed adverse to pubUc interest. The mayor, in many cities, enjoys the power to veto separate items in appro- priation bills. ^ Following the example of the state constitu- tions, our city charters often provide that a vetoed ordinance * See above, p. 498. ^For example, in Baltimore, Boston, New Orleans, Philadelphia, St. Louis, New York, and San Francisco, and in all Ohio and Illinois cities. 592 American Government and Politics can become law only when repassed by the council by an extraor- dinary majority, sometimes two-thirds and in many instances even more; but in a few smaller cities the mayor's veto may be overridden by the repassage with the ordinary majority. The financial powers of the mayor vary from city to city, but it may be said with safety that they are being steadily increased in the greater municipaUties. The mayor not only enjoys, as we have seen, the power of vetoing financial measures, but he also has, in a number of instances, a very large control over the making of the city budget. It seems that in Boston the budget has long originated with the mayor as a matter of practice; and on the recommendation of the recent commission appointed to investigate the government of that city the preparation of the budget is now vested in the mayor in law, as well as in practice.^ In New York City, the mayor enjoys a very peculiar position with regard to finances. He is a member of the board of estimate and apportionment ^ and as such possesses three votes out of a total number of sixteen. He also has the power to veto bills involving finances passed by the board of aldermen, and it takes a three-fourths vote to override an exercise of this power. In Baltimore, the mayor is likewise a member of the board of estimate and he is a member of the commission of finance in charge of the sinking funds. It is also strongly recommended in the municipal program of the National Municipal League that a large power in arranging the city budget should be given to the mayor. This development is, of course, in line vdih the evolution of the budget system in England, where the preparation of the budget is vested in a responsible finance minister who is in close touch wnth the officers of the administration — and thus with the outgo, of the moneys appropriated — and is, at the same time, answerable to .the electorate through his responsibiUty to the majority in the House of Commons. The waste, extravagance, and misappropriation of funds in our cities have been largely due to the fact that the financial administration has not been suffi- ciently concentrated in the hands of officers responsible to the electorate. ^ In the appointment of municipal officers and the direction of municipal administration, the power of the mayor is likewi See Readings, p. 524 ; below, 604, The Organization of Municipal Government 593 steadily increasing. In the beginning of our history, municipal officers were generally appointed by the city council; but with the democratic revolution of the first half of the nineteenth century/ most of the important offices, boards, and commissions were made elective. It was found, however, by practical experi- ence, that popular election did not actually secure responsibility of elected officers to the voters; for, owing to the number of offices and to the complexity of the election operations, the se- lection of candidates actually fell into the hands of expert politi- cians, who made the "slates" and thus secured possession of the municipal government. In order to check the corruption which resulted from this system, the de\dce of ''bi-partisan" boards and commissions was adopted with the hope that the representatives of one party would hold in check the representatives of the other party; but, in practice, it turned out that the representatives of , the two parties, in a large number of instances, made terms with each other and divided the spoils of office. Finding that the elective system did not really secure popular election and that the bi-partisan device did not check the spoils- men, municipal reformers determined to try the experiment of concentrating the appointing power in the hands of the mayor — thus making him responsible for the conduct of the whole ad- ministration. This development has reached its highest stage in the city of New York, where the mayor appoints the commis- sioners of the police force, the department of street cleaning, the fire department, the department of parks, the department of health, the tenement house department, and, in short, the heads of all important branches of the municipal administration; and enjoys also the unrestricted power of renioving these municipal officers, except members of the board of education, judges, and a few others. Where the mayor has this large appointing and removing power he can really carry into effect that provision of the city charter which lays upon him the duty of seeing " that the laws and ordinances are faithfully executed." Municipal Administration As in the state and national government, so in our city govern- ments, the growth of population and the development of many 'See above, p. 79. 2Q 594 American Government and Politics special social problems have rendered necessary the multiplica- tion of municipal functions; and to secure efficiency and respon- sibility almost every device known to the history of municipal administration has been tried in the United States. We have intrusted the great departments of administration — such as poUce, fire, streets, pubUc works — to elective boards, to appoint- ive boards, and to bi-partisan boards; and now, after many years of experimenting, we seem to be going in the direction of single-headed administrative departments, filled by the mayor under his appointing and removing power. As Professor Good- now says, "the desirabiUty of single-headed departments has come to be regarded as unquestionable; it is heretical at the present time to express the conviction that the board form is preferable." The single-headed system, however, is not without its defects. Owing to the complexity of the duties required in the administra- tion of a large municipal department, we cannot expect efficiency where the term of office is short and where the office is generally looked upon as a reward for political service. On the other hand, permanent tenure means the development of an official class which is regarded with suspicion by the American pubUc and which in practice, by virtue of its mastery of the mysteries of the government, tends to check democratic control. It has been suggested, therefore,^ that the various departments of municipal administration might be placed in the hands of unpaid boards, the members of which would determine only matters of general policy, leaving the technical details of administration to perma- nent officials selected for the most part under civil service rules. It is impossible here to go far into the details of the adminis- tration of American municipalities,^ but some idea of the difficult nature of the subject may be gathered from an examination of the executive branch of the government of New York City. At the head stands the mayor, whose powers and duties are partially described above. The entire area of greater New York is divided into five boroughs, Manhattan, Bronx, Brooklyn, Queens, and Richmond. In each borough, a president is elected by popular vote. Many matters of borough administration are left to the * Goodnow, Municipal Government, p. 228. 2 On this large topic, Fairlie, Municipal Administration, and Essays in Municipal Administration. The Organization of Municipal Government 595 president arrd a board of local improvement in each of several districts into which each borough is divided. This board of local improvements is composed of the aldermen of the district, elected to serve in the board of aldermen of the city; and in con- junction with the borough president it exercises large powers over the paving and repair of streets and highways, the laying of tracks, the construction of public buildings, and municipal works of a local character. Thus some important branches of municipal administration are decentralized, and, it is claimed, proper atten- tion secured to all parts of the city by bringing pubHc improve- ments more directly under the control of the elected officers of each of the districts into which the borough is divided. • The financial administration of the city is divided between two groups of authorities, the board of estimate and apportionment — composed, as we have seen, of the mayor, comptroller, president of the board of aldermen, and the borough presidents — and the de- partment of finance, which includes the comptroller, chamberlain, and the board of commissioners of the sinking fund. It is the business of the board of estimate and apportionment to exam- ine the departmental estimates submitted and prepare the city budget between October ist and November ist of each year. It also has the power of granting franchises (with the approval of the mayor), authorizing the issue of bonds, and controlling streets, highways, parks, docks, and other public properties. The technical details of all financial administration are vested in the department of finance. The comptroller, elected by popu- lar vote for a term of four years, looks after the accounts of the city and appoints a receiver of taxes and the collector of assess- ments and arrears. The chamberlain, appointed by the mayor, has charge of the receipts and payments; and the commissioners of the board in charge of the sinking fund ^ administer the sinking fund for the redemption of the city debt, lease municipal prop- erty, control public lands, and cancel city bonds. The other branches of municipal administration are distributed among the departments of law, police, water-supply, gas and electricity, street cleaning, bridges, parks, public charities, cor- rections, fire, docks and ferries, taxes and assessments, education, ' Composed of the mayor, comptroller, chamberlain, president of the board of aldermen, and chairman of the finance committee of the board of aldermen. 596 American Government and Politics health, tenement-house inspection, and the state public service commission. Each of these departments, except parks, educa- tion, taxes and assessments, and the pubHc service commission, is headed by one officer appointed by the mayor. The department of parks is in the control of three commissioners appointed by the mayor, and one commissioner is assigned to each of the great administrative divisions of the city.^ The department of educa- tion is under the control of a board of forty-six members ap- pointed by the mayor. The public service commission, charged with the supervision of common carriers, street railways, gas and electric companies, is not a municipal but a state board, composed of five members appointed by the governor with the approval of the senate. Under each of these great departments there is an army of employees numbering more than 60,000, graded in official hie- rarchies. Under the head of each department there is one or more deputies appointed by the head. The minor offices are principally filled — theoretically, at least — by examinations and promotions. By far the greater number of New York municipal employees (42,713 in 1906) are under the jurisdiction of the civil service commission, and of these over one-half are in the com- petitive class filled by examination, while the remainder belong either to the exempt, non-competitive, or labor class. The largest examination held by the New York commission, during that year, was for patrolmen in the police department, at which 1834 men were examined. Outside of the jurisdiction of the civil service commission were about 11,000 employees in the teaching force under the board of education, also selected by examinations and promotions. The civil service commission ^ of New York City is established- under a general law of the state, which provides that the mayor of each city shall appoint commissioners — not more than two- thirds to be of the same political party — for the purpose of pre- scribing, amending, and enforcing rules for the classification of the officers, places, and employments in the service of the city; ; and for making appointments and promotions and holding ex- aminations; and for registering and selecting laborers in the? * Strictly speaking, the department of health is in charge of a board, but^ the health commissioner is in practice the chief officer. 2 Three members. The Organization of Municipal Government 597 employment of the city. The merit system has been established for the cities and some towns in Massachusetts; for Milwaukee and certain municipal departments in cities over 10,000 in Wis- consin; for Chicago, Evanston, and a few others cities in lUinois; for New Haven, Connecticut; in some departments of all cities of Ohio (1908); in the charters of San Francisco, Los Angeles, Seattle, Denver, and some other western cities; in cities of the first class in New Jersey; and in the charter of Philadelphia.^ Municipal Democracy The suffrage for voting in municipal elections is usually the same as for the state at large, but there are some exceptions. For example, Rhode Island restricts the municipal franchise by a special property qualification, and Kansas widens it by admitting women. ^ Not only is the suffrage generally unrestricted by property quahfications; special efforts are now being made to increase the active participation of the voters in municipal poHtics by new devices. 1 . The principle of the initiative and referendum is being rapidly adopted for municipal as well as state affairs, so that the voters may initiate measures and force the reference of ordinances, franchises, and other matters of importance to the electorate at large. No less than twenty states have adopted the initiative and referendum ^*f or some or all of their cities: California, Colorado, Delaware, Idaho, Iowa, Kansas, Maine, Massachusetts, Missis- sippi, Missouri, Minnesota, Montana, Nebraska, North Dakota, Oklahoma, Oregon, South Dakota, Tennessee, Texas, Washing- ton.3 2. The principle of "the recall"* is also being adopted, espe- cially in the cities with commission government. Under this system elective municipal officers may be forced to stand for a new election, or withdraw altogether, when, on demand of a certain ^See Proceedings of the Annual Meeting of the National Civil Service Re- form League, for each year, for a full statement. See also the twenty-fourth Report of the National Civil Service Commission, pp. '163 ff. ^ In many other cities a referendum on special matters is allowed, but no initiative. 'National Municipal League Report for 1909, p. in. * Readings, p. 531; below p. 600. 598 American Government and Politics percentage of the voters, a new election is held. The principle has been applied in a modified form in Boston, where the mayor may be recalled after two years of his term have expired. 3. Finally, party conventions for municipal nominations are being aboUshed in favor of nomination by petition or direct pri- mary.^ The petition system is now in force in Boston under the recent charter, and candidates for mayor and councilmen are nominated by petitions signed by 5000 voters. The direct pri- mary is quite generally used in connection with the commission form of city government. Commission Government No lengthy argument need be adduced to show that the gov- ernment of the great American city is a complex process requiring a multitude of detailed technical and expert operations subject, in matters of general policy, to the control of the electorate. By its very complexity it offers a multitude of opportunities for waste, corruption, and maladjustments. On the side of its administra- tion the city is a gigantic business concern requiring for its proper conduct something more than mere election enthusiasm. Speak- ing abstractly, all of its branches should be carefully integrated so that there can be no conflict of authority, no waste in the purchase of suppHes, no neglect of duties by the employees, no misuse of funds appropriated, and no protection for vicious interests seeking to evade the law or to wrest privileges from the city. Recognition of this fact has led several American cities to com- pletely aboHsh the old form of government by mayor and council, and to substitute for it government by a commission composed of a few men endowed with full legislative and executive power in the city. Although there had been for some time a tendency toward greater centralization in municipal management, the movement for coriimission government may be dated from the reconstruction of the government of Galveston, in Texas, aftet the great storm of 1900, which destroyed a large portion of that unhappy city and sacrificed some 6000 hves. For a time, the government of that mu- nicipality was paralyzed, for the great problems connected with the reparation of the ruin were too much for the old political machine which had control. A committee of citizens was chosen to formu- ^ Readings, p. 530, and below, chap. xxx. The Organization of Municipal Government 599 late a new charter, and they drafted an instrument which vested the entire government in the hands of five commissioners, three appointed by the governor and two elected by The people of the city without regard to ward Unes. This charter was adopted, but its appointive feature was declared unconstitutional. A revision soon followed and the government of Galveston was vested in a mayor and four commissioners elected at large by the voters of the city and invested with all the rights, powers, and duties of the mayor and board of aldermen. The administration of the city is divided into four departments: police and fire, streets and pubUc property, waterworks and sewage, and fi- nance and revenue ; and the mayor and the four commissioners are required by the charter to designate from their own number a commissioner for each of the four great departments. The mayor president is merely one of the commissioners, although no city department is assigned to him, and exercises a "general coordi- nating influence over all."^ The board meets at stated times for the transaction of public business very much as the board of directors of a great corporation would meet to discharge their functions. This commission form of government with modifications has now been set up in about fifty cities scattered from Massachusetts to California; ^ and a number of states, including Iowa, Kansas, North Dakota, Mississippi, Minnesota, Wisconsin, and Oklahoma, have passed laws authorizing their municipalities, under certain conditions, to adopt the new plan. According to the recent report of the National Municipal League (1909), it was under ^ See the excellent article by Professor W. B. Munro, "Galveston, Plan of City Government," Providence Conference for Good City Government (1907), p. 144. The annual reports of the National Municipal League should be consulted for the progress of commission government. ^ The following cities now (1909) have commission government in some form. Massachusetts: Haverhill, Gloucester, Chelsea. Texas: Beau- mont, Dallas, Denison, El Paso, Fort Worth, Houston, Galveston, Austin, Waco, Marshall, Palestine, Corpus Christi. Iowa: Des Moines, Cedar Rapids, Burlington, Keokuk. Tennessee: Greenville, Memphis. Kansas: Hutchinson, Independence, Kansas City, Leavenworth, Topeka, Wichita. Idaho: Boise City, Lewiston. Oklahoma: Ardmore, Tulsa. North Dakota: Minot, Mandan, Bismarck. California: San Diego, Berkeley. South Dakota: Sioux Falls. Colorado: Colorado Springs. This list is not complete. 6oo American Government and Politics " active " discussion in no less than thirty- three cities, representing twenty-five states.^ The system varies somewhat from city to city, but the fundamental principle is the same everywhere — j the concentration of executive and legislative power in the hands of a small body, usually of five men, elected at large by the voters of the city. Several of the cities, notably Des Moines, lowa,^ have added a system of initiative and referendum and also a device whereby a certain percentage of the voters may "recall" any one of the commission — that is, force a new election for the ofiice. There is also a general tendency to abolish party methods of making nominations and substitute a non-partisan primary. Commission government, as Professor Goodnow points out,^ is a return to the original type of city government in the United States in so far as it concentrates all powers, administrative and legislative, in one authority. It differs, however, from the original council system in that its members do not represent single districts, but are elected at large by the voters of the entire city — a practice which, of course, substantially excludes minority representation, and is so far highly undesirable. From the standpoint of pure j business administration, the commission form of government has many features to commend it. It centraHzes power and respon- , sibility in a small group of men constantly before the public and subjected to the scrutiny of public criticism; it coordinates the ' taxing and spending powers, thus overcoming the maladjustment i so common to American public finance; and it throws down that| multiphcity of barriers behind which some of the worst interests j in American municipal poHtics have screened their antisocial! operations. On the other hand, it destroys the deliberative and representar tive element in municipal government, and mayTeadily tend to reduce its administration to a mere routine business, based largely upon principles of economy, to the exclusion of civic idealsi Furthermore, it is claimed that we get greater responsibilit}? by concentrating administrative power in the hands of th0 mayor than by dividing it among five commissioners. Another serious criticism of the commission system is based on * Cincinnati Conference for Good City Government (1909), p. 96. ^For the initiative, referendum, and recall, as applied in Des Moines, see Readings, p. 529. ^Municipal Government, p. 176. A The Organization of Municipal Government 60 1 the contention that, in the light of our municipal experience, it concentmtes toji.^.eat .a „pQwer. m of a few^ men and makes it easier for those who wish to buy a city govemmenrio carry out their design. Iowa, however, has sought to meet this' objection by establishing the system of .re oall noted above.^ Under this system twenty -five per cent of the voters, who dis- approve of the poUcy of any commissioner or believe that he is not discharging his functions honestly and efficiently, may petition for his removal and compel a new election. The whole question is then submitted to the electorate at large, and if the commissioner is upheld, assuming that he stands for reelection, he retains his office, but if defeated is supplanted by the popular choice. This system of recall has been extended to some cities which do not have the commission form of government, and is ably defended by many publicists on the ground that it conduces to effective popular control. Under the Iowa scheme all important franchises must be sub- mitted to popular vote before going into effect; municipal ordi- nances may be initiated by the voters, and ordinances passed by the commission must be referred to the electorate on a petition properly signed and filed. The danger of concentrating power in the hands of such a small body is further offset in the Iowa law by the abolition of the party convention as a means of nominating candidates for the offices of mayor and councilmen and the substitution of nomina- tion by direct primary. No party ballot is used at this primary; names are placed upon it by petition; and the two aspirants receiving the highest vote for mayor and the eight aspirants receiving the highest number of votes for councilmen are put upon the regular ballot as candidates for the offices of mayor and coun- cilmen. This ballot is t2>- Quoted in Fairlie, op. cit., p. 204. 2 There are regular night schools in many cities for those otherwise engaged in the daytime. ^ Rochester, New York, is probably one of the most advanced cities in matter of the use of schools as civic centres. I Municipal Functions 627 state legislature for permission to open a free library supported by taxation. Nearly every northern state has followed the prec- edent set by Massachusetts, and with the exception of Connect- icut and New York all of them have Hbrary legislation of a pro- gressive type. Our great cities not only have pubhc libraries well stocked with books for general reading and research work, but they have been steadily developing the system of branch libraries which makes the books available to the inhabitants of every district. Until 1902, Chicago led in the number of branch hbraries and the circulation of books, but in that year Phila- delphia took the lead. Quite recently, however. New York City has made a marked advance. In the great pubHc library in the process of building at Forty-second Street and Fifth Avenue will be stored the valuable collections of the Astor, Lenox, and Tilden foundations, which will give the metropolis one among the first libraries in the country. A large gift by Andrew Carnegie has made it possible for the city to erect and maintain at well-selected points no less than sixty-five branches. It is estimated that nearly two miUion books are freely at the disposal of the citizens of New York and that the annual circulation amounts to more than four milhon volumes. An ever increasing attention is given to the needs of children through the school libraries and through the special collections now to be found in the pubUc Hbraries.^ Our cities are coming slowly to reaUze that the provision for healthful recreation for the great mass of the population is a collective function which must be undertaken by the munici- pahty at pubhc expense. In the provision of parks and boule- vards, the cities of the United States have made giant strides within the last quarter of a century. Perhaps Boston takes first place, for, besides the famous Common and Pubhc Garden, that city has more than seventy small parks and playgrounds, in ad- dition to the local parks and the reservations in the environs. New York City has also given some attention to the problem of reserving breathing spaces. Almost in the heart of the city there is the famous Cei;tral Park; Brooklyn has the scarcely less beautiful Prospect Park ; and to the northward New York has reserved Riverside, Washington, and the Bronx parks. Never- * Zueblin, American Municipal Progress, pp. 173-188; A Decade of Civic Development, p. 120. 628 American Government and Politics 1 theless, there is still a lamentable lack of suitable provisions, it being estimated that there is only one square foot of playground for each child in the metropolis; and the large parks are nearly out of reach of those who need them most. Every city of importance has now one or more great open spaces, but in making these provisions city governments have too often overlooked the fact that many small parks, conven- iently scattered through the congested areas, are of far greater utility than wide areas on the outskirts of the city, or at best so situated that they can be reached only by the payment of car fare — an important matter for the children of the poor. Chicago, for example, recently had 700,000 people Uving more than a mile from any large park. The chief parks of Los Angeles and Kan- sas City are entirely without the city limits; and in St. Louis the large parks are all in one side of the city.^ It must be ad- mitted, however, that the evils of such a distribution of parks are being recognized, and some cities that have been the worst offenders in this respect have attempted to make amends within the last decade. Cities are also endeavoring to make the parks especially attrac- tive by providing athletic sports, such as baseball, tennis, golf, and dancing. Many give band concerts in the parks in sum- mer time and pubhc fetes on holidays, that are widely advertised to attract adults as well as children. Cleveland, Ohio, for ex- ample, gave thirty-seven Sunday and twenty-six evening band concerts during the summer of 1906 in the parks, so distributed as to give equal benefits to all parts of the city. May Day, Turners' Day, Old Settlers' Day, and Orphans' Day, were the occasions of special celebrations; twenty baseball diamonds were laid out in the parks and thirty on vacant lots; and eight pubhc playgrounds equipped with swings, sand piles, horizontal bars, and other apparatus, in the charge of athletic directors, were maintained.^ The physical and social value of healthful play for children is being recognized more and more by the estabhshment of play- grounds, not only in parks, but in connection with the pubhc schools and at special points in the congested areas. Boston has equipped the school yards as playgrounds for children and pro- * Zueblin, American Municipal Progress, pp. 241-274. * See Readings, p. 546. Municipal Functions 629 vided teachers to take charge of the games and gymnastic exer- cises. New York has followed this example, and now has a law requiring the provision of a playground with every new school building. In the winter time, Chicago, New York, Boston, and some other cities flood the playgrounds and turn them into skat- ing rinks. Chicago recently provided no less than two hundred of these rinks, Kghted by electricity and open day and night. Some indication of what an enterprising city can do is afforded by the recent experiments of the South Park Board in Chicago.^ That board secured in 1903 from the state legislature the power to create a number of new small parks, and thereupon made a careful investigation of the recreational needs of the great con- gested area under its jurisdiction. Within three years the board had estabHshed fourteen parks ranging in area from six to seventy acres at an expense of over $6,000,000. Combining all of the recent devices of social settlements, kindergartens, and other recreational centres, the board sought to make these new parks as attractive as possible to children and adults, and at the same time to develop healthful recreation to the fullest extent. It accordingly provided ball fields, tennis courts, swimming pools, sand piles, swings, lagoons for rowing and skating, stands for band concerts, and outdoor gymnasiums for girls and women and boys and men. It furthermore established indoor recreation buildings equipped with shower and plunge baths and lockers, and lunch, reading, club, and assembly rooms. In the winter time, lectures, dancing, and musical entertainments are given in the assembly halls. The various recreational features are under capable athletic directors.^ IE. Poole, "Chicago's Public Playgrounds," Outlook, Vol. LXXXVII, Dec. 7, 1907. I 2 The spirit of this new movement in Chicago in behalf of physical welfare s revealed in these extracts from the private directions issued to the in- itructors in the South Park gymnasiums : "Whether we wish it or not, the gymnasium and the athletic field are ichools of character, but the kind of character formed in these schools will lepend in great measure upon the instructor in charge. On the athletic ield, and in the practice of games in the gymnasium, the instructor should >raise every tendency of a boy or girl to sacrifice himself or herself for the ;ood of the team. Show them that this is the only way to succeed — by nity of action. If you can develop this spirit, you have laid the foundation f cooperation, politeness, and good morals. You have taught the funda- 630 American Government and Politics Unfortunately the splendid example set by the South Park Board of Chicago has not been followed very extensively by other cities.^ Unquestionably, however, all our cities will soon recognize play as an essential part of an educational system, and healthful recreation for adults as indispensable to the main- tenance of a high standard of physical comfort and efficiency. Cities are also recognizing to some extent the place of personal cleanliness in the general scheme of things and are making pro- vision for pubUc baths. The law of the state of New York makes the construction of free baths obligatory upon cities with over 50,000 inhabitants and permissible for others. In 1908, the investment of the city of New York in municipal baths amounted to $3,000,000, and eight large bathing places were in operation in the borough of Manhattan alone. Boston also has an exten- sive system of public baths and provides instruction in swimming; mental lesson of thoughtfulness for others. Keep in mind that we are public servants, employed to serve the public as experts in all that our profession implies, and that we are engaged in a work which, if properly conducted, is perhaps better calculated to raise tha. standard of good citizenship than any other single agency in the hands of public servants. "It is of the greatest importance that all work be undertaken in the light of the objects sought, as follows: " First, to take children from the streets and alleys and give them a better environment and safer place in which to play. This will relieve the parents of care and anxiety — as well as truck drivers, street car men, policemen, and others who are involved in the care of children. " Second, to encourage working boys and girls and adults to spend the idle hours in a wholesome environment and away from questionable amuse- ments. " Third, to encourage both children and adults to give attention to personal hygiene — exercise and bathing chiefly. " Fourth, to furnish wholesome amusement for adults and others who do not participate in the activities of the gymnasium, athletic and play fields. " Plan your work, then, and carry it forward with the well-defined idea that you are striving, first, to attract both children and adults to your gym- nasium, play and athletic fields; second, that after you get them there you must interest and hold them until the habit of frequenting your gymnasium is established; third, that you do all you can by means of your gymnasium programme, athletics, plays, and games, to 'set up' the frame, encourage bath- ing, teach skill, courage, and a wholesome respect for the rights of others." From The American City, October, 1909. * New York City has endeavored to attract the people to the water front by building recreational piers above the regular docks so as not to interfere with traffic, and by providing music at these places on summer evenings. Municipal Functions 631 Chicago, Buffalo, Baltimore, and Louisville, and in fact nearly all cities of any importance, have their bath-houses open all the year round. This municipal function has not been developed in the United States to the same extent, however, as in Europe, but this is largely due to the fact that the sanitary arrangements of our tenements and private houses are more advanced. These various experiments in municipal reform, valuable as they undoubtedly are, by no means solve the most fundamental problems of modern urban life; but these problems are connected with the larger questions of poverty, industry, transportation, agriculture, and the development of our natural resources — questions which fall within the domain of economics rather than of government strictly speaking. Nevertheless, it would give an entirely mistaken notion of the nature and scope of government to pass over without notice some of the more purely municipal issues. At the outset there is the grave problem of overcrowding, which has reached such an alarming condition, that in New York City the death rate, 16.5 per thousand in 1908, was higher than in Berlin or London, where it was 15.4 and 13.8 per thousand respectively. It is now well established that the death and sick- ness rates fluctuate with the wages and home conditions of the people.^ It is authoritatively stated that the "annual econo- mic waste from preventable diseases in New York City ranges from $37,000,000 to $40,000,000," and this is largely due to overcrowding. Furthermore ^'the density of population in- creases with the decrease of wages and overcrowding is greatest where wages are lowest." The land question of the city takes, therefore, first rank at the present time. It is a well-known fact that the value of ground in our large cities increases with astonishing rapidity — not through the effort of the owners or of any single private individ- ual, but through the growth of industry and population. The following figures, showing the appreciation in the value of the land alone in certain New York City blocks, illustrate this state- ment in a concrete way; and it must be noted that these blocks are not within the very heart of the city where the pressure of the population is greatest: — * Rowntree, Poverty (London, 1901), and Hunter, Poverty (New York, 1904.) 632 American Government and Politics Land Block 1904 1908 8125 W $367,500 . $456,000 9125 529,600 796,700 9125 W 182,000 229,000 9130 W 170,900 234,000 9131 w 278,000 469,500 10124 549,000 782,700 10125 540,500 776,000 10126 n.e 449,600 576,200 10127 n.w 122,000 290,400 10131 e 222,000 357,500 10132 e 257,000 403,000 10133 421,000 634,700 11132 261,000 383,000 Average appreciation 46.86 per cent.^ The recognition of the fact that an enormous annual tribute of "unearned increment" is paid to the owners of city lands without any service in return on their part has led a group of reformers, known as the "single taxers," to advocate the diversion of this money to the public treasury by way of taxation. Mr. Henry George, who was the founder of this movement in America, declared that this single tax absorbing all unearned increment in land values would "raise wages, increase the earnings of capi- tal, extirpate pauperism, abolish poverty, give remunerative employment to whoever wishes it, afford free scope to human powers, lessen crimes, elevate morals and taste and intelligence, purify government, and carry civiHzation to yet nobler heights." Without sharing this generous hope or examining the several objections which may be brought against the rigid application of the single tax doctrine, one may certainly conclude, with Professor Seager, that a gradual increase in the proportion of the municipal taxation that falls on land, as distinguished from im- provements and different forms of personal property, is much to ^ H. B. Woolston, ^ 'Study of the Population of Manhattanville (Columbia University Studies), p. 155; the table is based on the official assessors' lists. 2 Seager, Economics : Briefer Course, p. 434. Municipal Functions 633 be desired.^ "There is reason to think," continues Professor Seager, "that especially in large cities^ absentee landlordism is becoming more and more the rule for the simple reason that more and more people are coming to Uve in tenement and apart- ment houses. If this is the case there may be good ground for the contention that the system of private property in land is ceasing to serve any useful purpose in cities which the system of pubHc ownership would not serve as well, and that the time is ripe for a gradual transition to the latter." ^ The land question is involved in another fundamental problem, — how to plan a city with a view to its future growth, the health, comfort, employment, and standard of Hfe of all of the inhabit- ants.^ The use of a Httle foresight, the adoption of a sound pubhc policy, and a greater disregard for that clamor which would transform every public utility into private property would have saved the Hves of countless thousands of city dwellers in the United States and would have made the Uving conditions to those who survived infinitely more tolerable. Every day that social control over city planning is delayed makes more difiicult the problem of securing to the people the social values created by the growth of cities, and of providing proper air, Hght, and sunshine for the city dwellers — in a word, the great problem of making the city a place where the standard of physical efficiency, upon which in the long run the very existence of the nation itself de- * Table showing the percentage of inhabitants of great cities owning their own homes. CmES Owning Homes Stgage Baltimore 27.9 per cent 20 . 5 per cent Boston 18.9 " " 9.2 " Buffalo 32.9 " " 15-8 " Chicago 25.1 ** " II. 9. " Cincinnati 20.9 " " 13.9 " Detroit 39.1 " " 22.5 " Indianapolis 33 . 7 " " 18. i " New Orleans 22.2 " " 19. i " New York City 12 . i " " Manhattan and Bronx 5.9 " " 2.3 " Philadelphia 22.1 " " 12. i " San Francisco 24 . i " " 16 " Goodnow, City Government in the United States, p. 15. ^ Economics : Briefer Course, p. 434. ^ Goodnow, Municipal Government, p. 332 ff. 634 American Government and Politics pends, may be maintained at the highest point. There is no room here to dwell at length upon this important and technical branch of public economy.^ Whoever doubts the part that will be played in the future by scientific city planning may compare the broad avenues and streets of Washington with the narrow, dark, dismal, and crooked lanes of the older parts of Boston and New York.- Municipal Ownership In connection with the extension of the activities of the mu- nicipality, has arisen the question of how far these functions should be given over to private companies and contractors and how far they should be conducted by municipal authorities themselves. Street railways, gas, electric light and water plants, and many other municipal utilities are in the nature of things monopolies, so that competition seldom enters as a factor in regulating prices and services. For example, it is clear that there can only be one street car hne on any street and the company which owns any such hne, if free from public control, may fix any charge which the "traffic will bear." In the beginning of our municipal history the nature of muni- cipal monopolies was not understood by state legislators, or, if understood, it did not deter them from bestowing almost price- less pubUc privileges, without restrictions, upon private interests. The story of these franchises and the corruption connected with them makes one of the most sordid pages in the history of our country; but fortunately within the last decade there has come a gradual awakening of public sentiment on the question, and the day of free and uncontrolled exploitation of municipal monopohes seems to be about past. An examination of the present methods of conducting munici- 1 See B. C. Marsh, An Introduction to City Planning, and H. I. Triggs, Town Planning. (London, 1909.) 2 There is now on foot in Boston a "1915 Movement," designed to enlist widespread conscious effort in improving the city. It is described as "A city movement organizing the cooperation of all agencies which want to do things for industrial and civic improvement; a city plan coordinating the proposals of all agencies which want things done into a programme which the public can understand and carry out; a city calendar setting dates ahead when parts of the programme can and ought to be carried out." Municipal Functions 635 pal utilities reveals three general modes: (i) Private ownership under pubHc regulation; (2) public ownership with private opera- tion; and (3) pubHc ownership and operation. Where municipal utilities are in private hands they are operated under franchises granted by some municipal or state authority.^ On the whole there is a marked tendency in the direction of making the grant of important franchises dependent upon popular vote. This is the system which prevails where the initiative and referendum are in force.^ There is also a tendency to hmit the term of all franchises, issued to private companies, to short periods of years, varying according to the importance of the utility. In general, the term of twenty-five years seems to be the most popular. It has become customary, furthermore, in the granting of franchises, to place the private company under some close restrictions as regards charges and the character of the service rendered; and it is now the common practice for the tnunicipahty to require some kind of compensation either in services, cash payment, or annual rental.^ Even the most con- servative students of municipal government are agreed that the old policy of non-interference is obsolete.^ Wherever public ownership is combined with private opera- tion, the municipaUty leases its plant to some corporation, and stipulates certain standards as to services and charges. This Ls quite common in cases where the undertakings are so large and returns on the investment so uncertain that private capitaHsts are unwilling to finance the enterprise at all or except under oner- ous conditions. Examples of this method of dealing with munic- ipal monopoHes are afforded by the waterworks system of Den- ver and the subways of Boston and New York. The third method of deahng with municipal utilities — pubUc ownership and operation — is far more frequently employed in Europe than in the United States. If we leave out of account the 1 Several of the states have forbidden the state legislature to grant'fran- chises in cities. 2 Above, p. 597. ^ The recent Cleveland street railway settlement which limits the com- pany to a net earning of 6 per cent on the capital and at the same time gives the city strict control over service, extensions, and increase of capital is an interesting example of public regulation. * Readings, p. 548. 636 American Government and Politics water plants and the small electric-light plants owned and oper- ated by American cities, we may say that the principle of munici- pal ownership has secured no general acceptance. Doubtless the general view current in the United States is well represented by the report of a commission on pubhc ownership appointed by the National Civic Federation in 1907.^ That commission came to the conclusion that municipal ownership of public utiU- ties should not be extended to revenue-producing industries not involving pubhc health, safety, and transportation, or the per- manent occupation of pubhc streets or grounds. It is generally held that owing to the corruption and inefficiency of so many of our city governments no sort of pubhc business on a large scale can be successfully operated directly by municipal authorities. How far this view represents the mature judgment of people who have given the matter any thought and how far it is an opinion advanced by the private interests opposed to the extension of municipal ownership it is, of course, difficult to determine." It is certain that most of the corruption in American city gov- ernment has been connected with the exploitation of public franchises by private corporations. It is undoubtedly true, also, that "pohtics," in the bad sense of that word, is mixed up as much with private ownership as with pubhc, and the career of some of the New York transit companies will conipare in mismanage- ment and dishonesty with the career of the Philadelphia gas- works under the ownership and operation of the city.^ Indeed, it is argued by advocates of municipal ownership and operation that the danger of corruption is by no means so marked in con- nection with public ownership as with private ownership.'* They hold that the greater responsibihties associated with public ownership will attract a higher quality of men to our municipal governments; that in proportion as the city, through pubhc owTiership, touches directly the Hves of its citizens, popular in- * Readings, p. 548. 2 For an excellent example of the way in which interested corporations may use modem publicity to discredit municipal ownership, see the Progres- sive Age for November, 1907 — an article on " Mimicipal Ownership in New York City." ^ See Bryce, American Commonwealth, Vol. II, chap. Ixxxix, and Readings, P- 552. * See Readings, p. 550. Municipal Functions 637 terest in its governmen't and administration will be increased; that a higher standard of labor conditions may be estabHshed; and that only public ownership and operation will secure that control necessary to make the various municipal enterprises render adequate services. It may be doubted, however, whether arguments in the ab- stract on this question of municipal ownership are of any practi- cal value. Most opinions which we now have rendered as to the respective merits of pubUc and private ownership are merely ex parte statements. It may be said with safety that in some places municipal ownership and operation have succeeded remarkably well and that in other places, notably in Philadelphia, municipal ownership is connected with corruption and inefficiency. No general conclusion seems possible at the present time except that municipal ownership will not succeed in any city unless high standards of civil service are established and there is a large and influential group or class permanently and deeply interested in the economical and efficient management of the enterprise in question. Municipal ownership, tlierefore, is in itself not good or bad; its success depends upon the standards and ideals of the community in which it is tried. CHAPTER XXIX LOCAL RURAL GOVERNMENT ^ The differences in local institutions throughout the United States have been so often emphasized by writers on American government that it seems well at the outset to indicate certain fundamental principles common to them all. The first of these is that our local communities enjoy large powers of self-govern- ment through elective officers, and in the exercise of these powers are only slightly subject to the supervision and control of the state administrative officers. In the second place, the states, with one exception, are divided into counties,^ and counties are in turn divided into towns, townships, or districts of one kind or another. Every county, and generally speaking every subdivi- sion of a county, is a unit for certain financial, judicial, police, and local improvement purposes which are usually carried out by elective officers and boards. In the third place, subject to the few general provisions in the commonwealth constitution, the county and its subdivisions are under the absolute control of the state legislature, which can create and abohsh offices, distribute functions among the various authorities, and in other ways regu- late by law even to the minutest detail the conduct of local government. The divergences that occur among the states in local institu- tions may be ascribed to the manner in which local functions are distributed between the authorities of the county and of the town or township and to the manner in which the inhabitants of the county subdivisions participate in the conduct of their local matters. On this basis of differentiation our states have been classified into the three famous groups: (i) those of the New England type in which the town and its open meeting overshadow ^ In the preparation of this chapter extensive use has been made of the scholarly work by Professor Fairlie, Local Government in Counties, Towns, and Villages, to which the student is referred for further details. * Louisiana is the only state in which the district is not known as the county. There it is called the parish. 638 Local Rural Government 639 in importance the county; (2) those of the South in which the township is absent or appears only in the most rudimentary form; and (3) those of the middle type, like New York and Pennsylvania, in which the town, or township, as it is sometimes called, has a large and important place, but is subordinate to the county ad- ministration. These three types of local government, which will be described in due time, have been carried westward roughly along parallel lines and have formed, with varying emphasis, the basis for the development of local institutions west of the Alleghanies. The County^ The last census reported 2852 counties in the United States, varying in size from the county of Bristol in Rhode Island, em- bracing twenty-five square miles, to the great county of Custer in Montana covering more than twenty thousand square miles. A majority of the counties, however, range between 300 and 900 square miles in area. The divergences in population are even greater, for at one end of the scale we have New York county, the heart of the metropolis, with more than two milUon inhabit- ants, and at the other end. Brown county, Texas, with four resi- dents — according to the census of 1900. Even within the same state there may be the greatest divergences in area and population. Kings county in New York has seventy-two square miles and St. Lawrence county 2880 square miles; Hamilton county has only 5000 inhabitants, and Schuyler about 15,000. Delaware has three counties, Massachusetts fourteen. New York sixty- one, and Texas 243. Every county has a county town, which' is the seat of the offices of administration. In every state except two, Rhode Island and Georgia, there is a county board ^ in charge of certain matters of finance and administration, and every county has a group_qf officers connected with the administration of jus- tice, police control, finance, and miscellaneous matters. Beisides being a unit for the satisfaction of purely local needs, the county is also a subdivision of the state for the discharge of many cen- tral functions, especially in connection with finance and elections. Let us examine first the county board. From the point of view of organization, county boards may be divided into two general classes: (i) the small board of three or more members ' The Louisiana parish also has a board. 640 American Government and Politics elected at large for the whole county or from large districts, and (2) the representative board composed ordinarily of one member elected from each township within the county. The former type prevails generally in New England, the South, the Middle West, and Pacific states; the latter type is to be found in New York, New Jersey, Michigan, and a few other states. Each of the two types of county board, the small board and the large representative body, has its peculiar advantages. The former can readily meet oftener, transacts business with more faciUty, and can, with more certainty, bje held responsible for the due discharge of its legal duties. The tatter is more re|>resenta- tive in principle, affords fewer opportunities for collusion among the members, and partakes more of a deHberative character. In point of fact, however, both systems have been severely criticised as wasteful, inefficient, and sometimes corrupt; and several attempts have been made to institute other organs of local gov- ernment to check and control the county board. For example, in Indiana, the legislature has superimposed on that board a county council' invested with the important local financial func- tions.^ The functions of the county board generally fall into five classes: the levy of taxes and appropriation of local funds, the maintenance of roads and highways, the construction. and,caTe of coimty buildings, the rehef of the poor, and thejcontrol of elec- tions. In the distribution of these functions, however, there are great variations among the states. In New Hampshire and Connecticut the power of taxation and appropriation is vested in a county convention, composed of the members of the legislature from the county, which meets every two years. In Massachu- setts, this financial power is vested in the legislature, the county commissioners merely furnishing the estimates. Indiana, as has been indicated, has adopted another device for controlling county finances. In New England and some other states, the rehef of the poor is principally left to the town, although the county is not entirely without responsibihty in this matter. In New England, the county board has no functions relating to elections; and in the West and South, the county commissioners frequently constitute the licensing authority. To offset the confusion liable to arise from this attempt to ^ Readings, p. 561. Local Rural Government 641 generaKze with regard to the county board, it seems best to give a single concrete illustration by exhibiting the organization and powers of the board in New York. The board of supervisors is composed of one supervisor from each town in the county and one supervisor for each ward in each city within the county, ex- cepting in some counties wholly included within cities. The members meet annually and in special sessions at the caRpf the clerk, on the written request of a majority; and whenever re- qmred by law for the performance of some particular function. A majority of the board constitute a quorum; they elect a chairman; their meetings are pubHc and they make rules gov- erning their procedure. Penalties are imposed upon members for the neglect of duty. The general powers of the board are as follows. They have the care and custody of the corporate property of the county; they audit all accounts and charges against the county, and direct annually the raising of money to defray them in full; they order the levy of the taxes for each town; they assess, levy, and col- lect any other taxes required by the law of the state; they fix the salaries and compensation of county treasurers, district at- torneys, and superintendents of the poor; they erect county build- ings and borrow money therefor whenever necessary; they may, on appHcation of twenty-five resident taxpayers and when satis- fied that it is for the best interest of the county, lay out, open, alter, or discontinue a county highway or cause the same to be done, and construct, repair, or abandon a county bridge when they may deem the authority conferred upon the state highway commissioners insufiicient; they constitute the board of canvass- ers for elections in the county, except in the counties embraced in New York City. In addition to these important powers, the board has a multitude of minor duties which cannot be enumer- ated here. The powers conferred upon the county board by the state constitution or by legislation are usually enumerated or at best very narrowly confined. This results in the necessity of going to the state legislature for innumerable special acts at every session; it destroys "home rule," and helps to introduce confusion into state legislative business.^ The new Michigan constitution of 1908 continued an old provision authorizing the legislature to ^ See above, p. 530. 642 American Government and Politics confer legislative powers on the county boards of supervisors, and by recent enactment the board has been given power " to pass such laws, regulations, and ordinances relating to purely county af- fairs as they may see fit, but which shall not be opposed to the general laws of the state and shall not interfere with the local affairs of any township, incorporated city, or village within the limits of such county." Laws passed by the board under this act may be vetoed by the governor, to whom they must be sub- mitted, but they may be repassed over his veto by a two-thirds vote.^ This should have a salutary effect upon reducing the pressure for special laws in the Michigan legislature. - The county board is always supplemented by a series of pubhc officials var5dng in number and in the distribution of powers from state to state; but the two leading groups of such ofl&ces — those connected with justice and poHce and with finance -y are of course always present, owing to the fact that these functions, to a greater or less extent, everywhere form a part of county administration. These ofiices, or at least the duties attached to them, are gener- ally determined by the state legislature under very slight constitu- tional control, and each incumbent is usually independent in the discharge of his duties, being subject only in a few instances to supervision by the county board or by the state administrative authorities. It is the common rule also to have these offices elective, but there are a number of exceptions, especially in the matter of judicial officers in the eastern and southern states. The practice of having a separate judge and court for each county obtains in only about one-third of the states, while some other states have separate courts for the more populous counties. The more common rule is to group counties into judicial districts and have one judge go on circuit from county to county, holding stated sessions of court.^ In nearly three-fourths of the states all judges, district and county, are selected by popular vote for vary- ing terms — often six to twelve years. In other states they are selected by the governor in conjunction with a council, the senate, or, as in Connecticut, the entire legislature. In Rhode Island, Vermont, Virginia^ South Carohna, Georgia, they are chosen by the legislature. Sometimes there is associated with the county judge a special officer, usually known as the probate judge, who 1 Professor Fairlie, in the American Political Science Review, for February, 1910, p. 122. ^See above, p. 548. Local Rural Government 643 is charged with the settlement of estates. In New York there is a county judge elected for a term of six years/ and in a majority of counties there is a surrogate or probate judge, also elected for six years. - The jurisdiction of the county court, that is, the range of matters wliich may come before county court judges, of course, varies greatly from state to state. In a few states, the county court has no judicial functions at all, but is merely an administrative organ; in two states, Kentucky and Tennessee, it possesses both judicial and administrative functions; and in some others the duties of a county court are confined to probate business. The county court of New York has jurisdiction over all civil cases involving not more than $2000, and over all criminal cases, with the single exception of murder. Next in importance to the judicial officers of the county is the prosecuting attorney, known in New^York as the distnct^tomey and in some other states as the county attorney.^ He is generally an elective officer and is charged with the institution and conduct of criminaljgrosecutions and with representing the county in civil suits. He usually has the power of appointing assistant prosecut- ing attorneys for the various localities within the county. Some- times he derives his salary from fees — a device which furnishes an incentive to activity; but it is discarded by many states in favor of a fixed salary because it may encourage useless prosecutions. In New York the district attorney for each county, with a few exceptions, is elected for a term of three years; and it is his duty to conduct all prosecutions for crimes and offences com- mitted within his county, except when the trial of an indictment is removed from his jurisdiction, in which case he must assist the neighboring district attorney in the trial of the case if requested. The chief business of the prosecuting attorney is, of course, the enforcement of the law against criminals of every kind — from the petty thief to the murderer or the defaulting or dishonest pubhc officer. Clearly, therefore, the good order of the commu- 1 There are exceptions for counties containing, or embraced by, cities. - There is always attached to the county court a clerk who keeps the judicial records and sometimes has miscellaneous functions in addition; see above, p. 549. ' This latter term is applied in some states (including New York) to an attorney appointed to represent the poor in courts. 644 American Government and Politics nity and the efficiency of the government depend in a large meas- ure upon the character of the prosecuting attorney; and it is small wonder that heated political contests are sometimes waged in the selection of the man to fill this position. There is nothing so important to a corrupt county or city political machine as the office of the prosecuting attorney, for it is practically within his power to decide whether corruption and malfeasance shall exist in the various departments or not.^ Effective work as prosecutor has brought many men into great prominence, especially in recent years when municipal scandals have been so widespread. Mr. Deneen's services as prosecutor in Chicago opened the way to the office of governor for him, and Mr. Folk's vigorous search for criminals in St. Louis helped to make him governor of that state. The dramatic career of Mr. Heney in San Francisco is so recent a matter that it need not be mentioned here. The prosecuting attorney, however, does not have sole control over the institution of criminal proceedings, for in m6st'Stat€s1ti5 the grand jury that takes the preliminary steps in hearing evi- dence and bringing the indictments. The prosecutor has no legal power to force or prevent action on the part of the grand jury; but, as a matter of common practice, he determines what cases shall come before the grand jury, and his advice as to the proper line of action is generally taken. The recognition of this fact and the discovery that the grand jury is a slow and unwieldy instrument for prosecution have led several states to abandon it altogether for ordinary cases and to authorize the institution of criminal trials on "information" presented by the prosecutor. There are, of course, grave dangers in substituting the will of a single official for the deliberate judg- ment of a group of citizens, and the constitution of Oklahoma, while permitting prosecution by information, provides that "no person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination." - The restriction of the use of the grand jury, furthermore, in- creases enormously the power of the prosecutor, happily if he uses it for good, disastrously if he is associated with the criminal elements. ^ See Goodnow, Principles of the Administrative Law of the United States, P- 416. ^ 2 Readings, p. 87. Local Rural Government 645 The executive officer of the county is the sheriff, who is elected by popular vote in every state except Rhode Island, where he is chosen by the legislature. The sheriff always has power to appoint one or more deputy sheriffs. The te^m is usually two years, but in some states, including New York,^ it is three years, and in a few it extends to four years. The sheriff is paid either a fixed salary or by fees or by a combination of both ; and in New York county the income secured by the sheriff in a legitimate way sometimes amounts to $75,000 or more. The sheriff is cus- todian of the county jail; he is the county hangman; he summons witnesses, arrests indicted persons, sells the property of private persons for taxes or debt under judicial order, and executes the processes of the court. The sheriff is also conservator of the peace in the county, that is, he may "upon view, without writ or process, commit to prison all persons who break the peace or attempt to break it; he may award process of the peace and bind any one in recognizance to keep it. He is bound, ex officioy to pursue and take all traitors, murderers, felons, and other misdoers and commit them to jail for safe custody. For this purpose he may command the posse comitatus, or power of the county; and his summons every one over the age of fifteen years is bound to obey." ^ This power is of great significance in time of peace and of special importance in the case of disorders. The sheriff is to a large extent the guardian of life and property. The zeal or laxity with which he takes precautionary measures will often determine the seriousness of a local disturbance; and there are many instances of sheriffs allowing their fears or sym- pathies to outweigh their strict obHgations to execute the law. Indeed, in many of the unsettled communities, the contest over the election of sheriffs is waged with great vigor on account of its relation to the suppression of disorder. In^serious disturbances, however, the govjernor of the state may take the police control temporarily out of the hands of the sheriff by declaring martial law and using state troops.' He may do this, of course, at the request ol a sheriff unable to maintain order with the ordinary resources at his command. * Exceptions for certain populous counties. ' South V. Maryland, 18 Howard, 396, quoted in Fairlie, op. cit., p. 109. ' See Readings, p. 449. 646 American Government and Politics Closely associated with the office of sherifif is that of the cor^ oner, an office not quite so ancient, but nevertheless with a long and interesting history. There are usually two or more coroners in a county, and, except in a few eastern and southern states, they are elected by popular vote. The New York law provides that there shall be four in each county having 100,000 popula- tion or more, and not more than four in other counties as the board of supervisors may determine; they are elected for a term of three years.^ It is the duty of the coroner to view the body of any person murdered, or killed by accident, or in any other manner involving suspicion of crime. The inquest is made by a jury, generally of six, empanelled by the coroner; witnesses are summoned; all facts relating to the death of the person which can be ascertained are recorded; and at the conclusion of the inquest the jury re- turns a verdict to the effect that the deceased met his death in some particular manner and, when foul play is unearthed, the offender or offenders may be named. In New York the coroner may employ two competent surgeons to make post mortem examinations and to testify to the result of the same, and it is the common practice in all states to call some medical authority to give testimony at an inquest. . Owing to the value of such evidence and the crude and ignorant methods often accompanying coroners' inquests, Massachusetts has pro- vided for the appointment of expert medical examiners to give special attention to these important preliminary investigations. The coroner's verdict does not in any case, however, prevent independent action by the county prosecutor or grand jury. In addition to the judicial and police officials of the county, there is a second important group, which may be designated as the financial officers. They are generally elective. First among these is the treasurer,^ who is to be found in every state except Rhode Island. His duties are primarily fiscal in character; he collects the taxes laid in the county, but sometimes he is assisted in this by special collectors; and he transmits to the central au- ^ Exceptions for certain populous counties. ^ In Connecticut, Vermont, New Jersey, Kentucky, and Louisiana treas- urers are appointed by county boards and in South Carolina by the governor. Fairlie, op. cit., p. 122. In New York the term of the treasurer is three years, except in certain populous counties. Local Rural Government 647 thorities the portion of the local revenues which goes to the state. He is the guardian of the county funds, and in many states he may select under the terms of the law the banks in which to de- posit the money under his control. In the exercise of this power he often derives a large personal income, but some states have now required the officer to turn into the county treasury all interest accruing from deposits of public money. The law of New York orders the treasurer, if not otherwise directed, to designate in writing the banks in which county funds are to be deposited and to agree upon the rate of interest, which is to be credited to the account of the county. Of course, this leaves opportunity for favoritism, which will be advantageous to the treasurer, and there has been more than one case of private gain at public expense. About one-third of the states, principally in the North Central group, have county auditors whose business it is to go over the accounts of all the officers of the county, to prepare a periodical statement of the county finances, and to issue warrants on the treasurer. In New York the legislature has not yet seen fit to create the office of auditor, except for one county, Erie, in which the city of Buffalo is located.^ The accounts for the four counties em- braced within the area of Greater New York are audited by the comptroller of the city. In the other counties of the state the auditing has not been centraHzed; the board of supervisors audits and allows all accounts, but nearly all of the routine work is done by the clerk of the board, who is for many practical purposes the county auditor. An additional element of control is furnished by the provision requiring the treasurer to make a detailed annual statement to the board, but this system does not furnish the general supervision and scrutiny desirable, especially in wealthy and populous counties. In a number of states, especially those in which the township' is only sUghtly developed, notably in the South, there is a coimty assessor who is usually elected. It is his duty to make out the roll of all the taxpayers residing in the county and the value of property assessed against each person. Quite generally the taxpayers Ust their own property for the information of the assessor, but, of course, he may alter each valuation as he may see 1 A law of 1910 authorizes their appointment. 648 American Government and Politics fit. Associated with the assessor there is sometimes a board of equahzation, whose duty it is to pass upon the assessments of the entire county with a view to correcting inequalities, and to hear appeals from taxpayers protesting against the valuation assigned to their property. In New York, this work of equahza- tion is done by the board of supervisors, who may, however, by majority vote, appoint three persons to be commissioners of equalization of the county. In addition to the financial, judicial, and police groups of county officials, there are a number of officers connected with county administration. In almost one-half of the states there is a county clerk, who sometimes combines duties connected with the county court with entirely separate ministerial duties, such as keeping records of deeds and mortgages, or preparing ballots for elections. The county clerk in New York is elected for a term of three years ;^ he serves as the custodian of election records, in all except the most populous counties, which have special authorities for this purpose; and he generally prepares ballots for primary and regular elections. The custody of the records of land is a county function in all the states except Connecticut and Rhode Island, where it is vested in the town clerk. In about half the states, the county has a special officer in charge of land records, known as a recorder or the register of deeds, who keeps a record of all titles to land within the county and of all mortgages, loans, and other instruments which affect such. titles. Ever>^here, except in New England, certain educational func- tions are made county matters; and in a number of the southern states the management of schools is entirely in the hands of county authorities composed of boards and superintendents. In states where education is largely a township matter, as, for example, in Indiana, there is a county superintendent of education who has general supervisory powers over the trustees or directors of local school districts. In New York there is a school commis- sioner elected in each school commissioner district, of which some counties have two or more; in cities, however, there are special boards.^ * In rural counties; sjjecial provisions are made for large cities. ^ Among the minor county officers may be included the surveyor, to be found in nearly all the states except the North Atlantic group, the superin- tendent of the coimty poor, and the health commissioners. Local Rural Government 649 Town and Township Government On the basis for classifying local governments laid down at the opening of this chapter — that of the organization and func- tions of the subdivisions of the county — the New England states stand in a group by themselves. In that section of the Union, every county is divided into towns, or, to use the word in a west- ern sense, townships. Many diverting attempts have been made to trace the origin of these rural hamlets to that "great cradle of liberty, the forests of Germany," and as a matter of fact they do have a very long and interesting history. They have stood practically unchanged, especially in the more sparsely settled districts, in their form of government amid the poHtical revolu- tions of the nineteenth century.^ It is customary to call them pure democracies because they are governed by assemblies of all the voters in open town meetings, and possess most of the important powers which are elsewhere vested in county officials. Yet it is difficult to regard as democratic a system which is the basis for abuses in representation in the state legislature almost as gross as those swept away in England by the first great re- form bill.^ The New England towns are very irregular in shape, owing to their having been originally settlements laid out roughly before an official survey was made. Generally speaking, they vary in size from twenty to forty square miles, although the western rectangular township containing six square miles is found in the northern part of Maine. The town is usually a rural region containing one or more "villages," varying in size from very small hamlets to settlements containing three or four thousand in-, habitants. The more thickly populated urban centres are usually organized as city corporations distinct from the town, but this is not always the case. The town of Brookline, Massachusetts, between Boston and Newton, has a population of over 20,000 and yet retains its primitive town government. Even New Haven and Hartford, Connecticut, have continued the town organization separate from the city government. The feature of the system which is most striking to the observer from the middle West is * Compare the extracts on p. 11, and on p. 556 of the Readings, 2 See above, p. 521. 650 American Government and Politics the combination of rural with municipal government; forTiT most instances considerable villages and even small cities, contain- ing a thousand or more inhabitants, are not separated from the surrounding agricultural district, but the whole of the "town- ship" is governed by one meeting of all the electors, rural and urban. _ The government of the town is vested in a town-meeting composed of all the voters and held annually ahd~"on special occasions. The meeting commonly assembles in the town hall and seems to be attended by a considerable proportion ^TThe voters, especially in the rural regions. At the town -meeting the selectmen, or executive committee, the town clerk, assessor, treasurer, constable, and other officers are chosen by secret ballot, and matters relating to appropriations, streets, schools, and other local functions are discussed and determined. In rural districts where primitive conditions have been undisturbed by the rise of the factory system or by the influx of immigrants, and where every one knows everybody's business, the town-meet- ing preserves much of its ancient vitality and interest, but to a considerable degree the business of the meeting is determined in advance by a caucus of the adepts in rural politics.^ It is only when there is some matter of special importance, Hke the laying out of an important street or the erection of a new school! building or waterworks, that the town-meeting rises to the^ dignity of a deliberative assembly. The administrative work of the town is done by a group of officers elected for terms of one or more years at the town-meet- ing. The chief executive officers of the town are the selectmen, varying in number from three to nine. Their emoluments and the character of their duties are largely determined by the size of the town. They ma^ execute the special orders of the meeting, lay out highways, draw warrants on the town treasury, act as assessors, health officers, and election clerks, and grant Hcenses. The town clerk is an important and often an interesting character, for his knowledge of local matters and family histories is some- times stupendous. He issues marriage licenses, serves as a registrar of marriages, births, deaths, records the proceedings of the town meetings, and in Connecticut and Rhode Island is a recorder of deeds, mortgages, and other documents relating ^ See Readings, p. 12, for the Boston caucus in colonial times. Local Rural Government 651 to land titles. The funds of the town are guarded by a treasurer, and sometimes there is an auditor to supervise all accounts. The peace of the town is in the keeping of the constables, who often have other duties, such as the serving of writs and the collection of taxes. Except in Massachusetts and Maine, where they are appointed, justices of the peace are elected at the town meeting. There are in addition numerous other minor officers, such as poor guardians, pound-keepers, library trustees, and fence-viewers, sometimes elected, and sometimes appointed by the selectmen. In a great group of northern and central states the town, or township as it is often called, has a position of importance in the county; but there is scarcely anything of the feeling of intense locaHsm. which has made the town such a vital, part of the New England system. In New York, New Jersey, Michigan, Illinois, Wisconsin, Minnesota, Nebraska, North and South Dakota, for example, the town-meeting with considerable variations has been adopted, but its functions are by no means so numerous, and with few exceptions the voters do not take the same lively interest in its proceedings. In Pennsylvania, Ohio, Indiana, Iowa, Kansas and Missouri there is no township assembly at all, the local business being transacted by elective officers. This decline or disappearance of the town-meeting is principally due to the fact that in most cases the township is an artificial unit laid out by the surveyor, not a settlement of neighbors and friends such as we find in New England. In the middle western states, the county organization came first, when the regions were only sparsely settled, and it has retained most of the functions assigned to it in the beginning.. The western states, furthermore, were settled by immigrants from all parts of the East and from Europe, and the conditions were wanting for that spontaneous cooperation which naturally arises among men closely associated in long historical traditions. It must be re- membered also that in this group of states the more populous- urban centres are cut off from the rural regions by special village or city organization, thus leaving only the scattered farmers to conduct their rural affairs by themselves. In most of the states which have estabUshed the town-meeting the authority of that body is by no means so great as in New England, although in New York it theoretically enjoys sub- 652 American Government and Politics stantial local powers. In that state the meetings are held bien- nially/ usually on the general election day in November and at other times on special call for particular purposes. The town assembly elects at its biennial meeting one supervisor, one clerk, the justices of the peace, the assessors, one collector, one or two overseers of the poor, two or three commissioners of the highways, and not more than five constables. The meeting may also make provision for abating nuisances, destroying noxious weeds, establishing "pounds," and caring for town property, and it may vote money for town purposes; but an elector of a town cannot vote upon any proposition for the raising or appropriation of money or incurring any town liabiUty unless he or his wife is the owner of property in the town assessed upon the tax roll. As a matter of practice, however, the town-meeting of New York in a large number of cases is merely an election, the govern- ment of the town being conducted by the town board, consisting of the supervisor, town clerk, and the justices of the peace. The board audits accounts and allows claims and demands against the town. The general statutes of the state relating to town govern- ment cover about one hundred and fifty closely printed pages and go into such detail that they leave no deliberative functions of any importance. Financial function^ connected with the establishment of sewers, waterworks, and lighting plants are exercised by the town board, acting in some instances on petition of the taxpayers and in others on a referendum to the voters. The direction of the raising of money to meet town charges, however, is vested in the county board of supervisors. This decHne of the. town-meeting is to be found among all those states which have adopted the system. As the townships grow more populous, the local duties to be performed become more complex and the state legislation controlling the details of local government increases in bulk. It is inevitable, there- fore, that the voters should come to rely more and more on boards and officers devoting their time to particular duties. In those states which do not have township meetings the local functions are vested in elective officers, such as trustees, clerks, assessors, treasurers, justices of the peace, and constables. These ^ In a number of towns the general meeting is abandoned altogether and the voters assemble in election districts to choose town officers. Local Rural Government 653 officers are charged with certain definite duties by statute, and there is no occasion for by-laws and debate. In Indiana, for example, the most important officer is the trustee, who prepares the township budget, supervises the common schools in rural districts, and, generally speaking, occupies the place of the town board in New York or the selectmen in New England. How- ever, an attempt has been recently made in that state to estab- Hsh a larger popular control over the trustee by the creation of an elective board of freeholders to supervise his financial activities.^ The subdivisions of the county in the South and Far West need not detain us long, for they are generally of sHght impor- tance historically or practically, and attempts to introduce the township system of the North and East have not been at all successful.^ In some of the southern states the county sub- divisions are known as magisterial districts, in others as election districts or precincts. These divisions are quite frequently used as the units for electing justices of the peace, constables, and members of the county board or for school administration. The voting of appropriations and general functions of adminis- tration vested in the New England town-meeting are in the South and West vested in the county board. The Virginia county, for example, is divided into magisterial districts, in each of which are elected a supervisor who serves on the county board, three justices of the peace, a constable, and a poor-law officer. Towns and Villages In all of the states outside of New England, it is the common practice to separate the more thickly settled districts from the towns and townships and to give them a special legal position and form of government of their own. This is done in a few cases even in New England. These small centres of population are generally known as villages, boroughs, or incorporated towns. Most of the states have a general law providing the conditions under which the more populous settlements may become inde- pendent and self-governing units, and in some instances they are incorporated by special act. In New York, for example, any territory not exceeding one square mile or an entire town contain- 1 See Readings, p. 560. 2 gee Fairlie, op. cit. , p. 49. 654 American Government and Politics ing a population of at least two hundred may be incorporated, on petition of twenty-five adult freeholders filed with the town supervisor and approved by the vote of the quahfied electors.^ The New York village has a president, not less than two trustees, a treasurer, a clerk, and a street commissioner, a board of health, and in some cases a poHce justice and other officers. The presi- dent and trustees are always elected by the voters of the village. The board of trustees is the legislative body and has general powers over the finances, pubHc buildings, pavements, streets, fire protection, drains, water supply, as well as considerable ordi- nance power relating to peace and good order, amusements, parades, fast driving, improper noises, vulgar language and con- duct, maHcious mischief, railroad crossings, and miscellaneous matters. This process of incorporation and this form of govern- ment, with minor modifications, are quite generally followed in the other states. Centralization of Administration Local autonomy, or exemption of communities from inter- ference on the part of central authorities was one of the shib- boleths of a certain school of publicists in the nineteenth century. It originated in France and England, where the rising bourgeoisie found the centralized monarchical institutions, principally in the hands of the landed classes, particularly irksome and undemo- cratic. It was heartily approved in the United States, where economic conditions, especially before the industrial revolution, favored a highly developed locahsm, and it hardened into a dogma to the effect that interference with local institutions was a species of original sin to be fought on principle and on all occasions. Under the circumstances, undoubtedly, this dogma had its justi- fication, but circumstances have changed since 1850. Affairs that were once of purely local concern have become of state-wide and even national importance. It does not matter much to neighboring counties whether any particular county keeps the weeds cut along the roadside ^ or allows the pound fences to fall into decay, but in these days of swift and constant intercommuni- ^ There are, in New York, some rather large villages of more than 5000 inhabitants, ' Even this is scarcely true, for the spread of weeds is not limited to county lines. Local Rural Government 655 cation it does matter whether the county safeguards its inhabi- tants against contagious diseases, assesses its property for state taxation fairly, keeps its highways in order, allows the children to grow up in ignorance, or permits manufactories to pollute the streams. As a result of increasing state-wide interests, there has come inevitably a demand for more state supervision over local insti- tutions. We now have state boards of health with large powers over local sanitary arrangements, food and dairy products, water suppUes, and other matters affecting the health of the state gen- erally. We have state factory and mining inspectors, railway commissions, highway boards, charity and correctional boards and officers, tax supervisors, excise commissioners, and educa- tional officials.^ Only recently Ohio has sought to standardize the whole system of local finances and to secure efficiency and honesty in local financial administration by instituting a state bureau of inspection.^ State legislatures are more and more subjecting local authorities to uniform standards in the matter of education, sanitation, highways, and finance. Consequently, through both legislative and executive centralization, local au- thorities are coming to assume almost purely administrative posi- tions, as the subordinate authorities, carrying out a state-wide will on all matters of fundamental importance. The result has been good — a steady and persistent elevation of the standards of civilization throughout our states. • ^ See above, p. 501. 2 ggg Readings, p. 565; below, p. 713. CHAPTER XXX STATE AND LOCAL POLITICS All that has been said above about the position of the political party as the controUing power in the American national govern- ment ^ applies with equal force to state, local, and municipal governments. It is through the party that the citizens ordina- rily bring their influence to bear upon the operation of these gov- ernments and it is likewise through the party that the anti-social forces of our states and cities have been able to carry out their various designs. The ballot at the primary and regular election is the point of contact between the citizen and his government; and the ballot at the primary is in many instances far more impor- tant than the ballot at the regular election, for it is at the pri- maries that the citizens may determine party poUcies and the selection of party candidates and leaders. It needs no extended argument, therefore, to demonstrate that from the point of view of the citizen seeking to maintain his rights and do his duty, a study of poUtical parties, their structures, and actual opera- tions can take no secondary place in a survey of American gov- ernment. • It is well to bear in mind at the outset that the state is a unit in the national party organization and forms the basis of that structure. The state regulates the suffrage, nominations, pri- maries, and elections, — in short, practically all of the operations of parties. It is in the state and city organization that the party has reached its most complete development and has secured the most rigid discipHne over the rank and file of the voters. The state organization also merges into the larger national organiza- tion through the federal patronage and the functions of United States Senators and members of Congress as party leaders in their respective states. Nevertheless, the overshadowing interest in national poHtics should no longer be allowed to obscure the fact that the foundations of party government are laid in state and local organization. ^ Above, p. i66. 656 State and Local Politics 657 State Party Organization and Operations An examination of party government very readily. falls under three heads: party organization, party methods, and legal control of parties. The formal structure of a poUtical party consists of the state and loral rhflirmpn, rnmrm'ttees, anH rnnA^pntinnc; At the head of the state organization is the chairman of the state committee who may or may not be a dominant leader in theparty. Sometimes, as was the case of Mr. Quay in Penns^fJrvajua and Mr. Piatt in New York, the leader is a United States Senator; some- times, but not very frequently, the office of state chairman is combined with some high office in the state government, as was the case of Mr. Odell of New York, who was the chairman of the RepubHcan committee and at the same time governor of the commonwealth. Again, the chairman of the committee is often merely a figurehead who obeys the orders of leaders, bosses, or powerful private persons who dictate party policies and use him as a screen. The state chairman in New York is elected by the state com- mittee in both the Republican and Democratic parties. Under the primary law of Wisconsin, the state chairman is selected by the party candidates for certain state offices nominated by the party at the preceding primary elections.^ In general, we may say that the state chairman is chosen by the state com- mittee or the state convention or, under direct nomination laws, by some group representing the party. The term of the chairman of the Republican state committee in New York is usually two years, although changes may be made at the pleasure of the committee. The state committee of the RepubUcan party in New York is composed of one member from each congressional district chosen at the state convention by the delegates of the respective districts at that convention; and to the thirty-seven committeemen thus selected another is added to represent the colored vote through- out the state. The Democratic state committee in New York is composed of one member from each of the fifty-one senatorial districts, chosen at the state convention by the delegates of the respective districts. The Republican party uses the ■ congres- sional district as a imit partially because it brings the state com- ^ Certain party members in office are also included. See below, p. 690. 2U 658 American Government and Politics mitteeman in each locality in touch with the RepubUcan member in Congress (if there is one) who is the dispenser of federal patron- age in the region. The power of a state committee, in the absence of legislative control, is impossible to define, because party rules usually con- tain no provision on the subject, and the work of the committee really depends upon the personal strength of its members and their capacity for leadership in the party. In a formal way, the committee holds periodical meetings, makes the preparation for state conventions, and other state party meetings, and takes charge of the preliminaries of such assemblies. The work of the state central committee is chiefly done by the officers: the chairman, secretary, and treasurer and such members as may see fit to devote their time and attention to party matters. In most state committees there is an executive committee, com- posed of a small number of members who manage to gather into their hands, by constant attention to business, substantially all the powers.^ It is the business of the state committee to super- vise the process of obtaining a full party registration and vote; to prevent or heal quarrels and dissensions within the ranks; to see that the local organization is in good working order; to raise funds; and to nominate candidates for state offices in case of vacancies or of minor offices which do not warrant the holding of a state convention.^ Finally it is the duty of the committee to direct the campaign throughout the state, cooperating on the one hand 'with the national committee when there is a national election and on the other hand with the local party committees, strengthening the weak places and devoting special attention to the districts in which it is beUeved the vote will be close. In all commonwealths of the Union, except those states which have adopted state-wide primaries, it is the practice for each poHtical party to hold a general convention periodically for the purpose of nominating candidates for state offices and drafting the platform. The convention of the RepubKcan party of New York is composed of delegates apportioned among the assembly districts roughly according to the vote cast for the Republican 1 This institution has been abolished in the Republican party in New York. 2 This can only be done in New York when the state committee has been expressly authorized to act in specific instances by the state convention at which it is elected. State and Local Politics 659 candidate for President at the last preceding national election. Within recent years it has been the practice to apportion one delegate to each assembly district and one additional delegate for every thousand RepubHcan votes or major fraction thereof cast in the district. This makes an unwieldy convention of about a thousand members. These members are chosen by as- sembly district conventions or by county conventions in those counties which are coterminous with assembly districts; and these county or assembly district conventions are in turn made up of delegates from the lower units chosen by the party voters in official primaries. Generally speaking the convention follows estabhshed parUa- mentary rules. It is called to order by the state chairman, who announces the name of the man selected by that committee to act as temporary chairman during the formal organization of the convention. Without exception in recent years the New York RepubHcan state convention has ratified the choice of the com- mittee. The position of the Republican temporary chairman in that state is important, for he appoints the committees on per- manent organization, platform, rules, and credentials — each of which is composed of one member from each congressional district. Thus, through the temporary chairman, the state committee may wield a direct and powerful influence, for no doubt the com- mittee, in selecting a temporary chairman, knows in advance what his general attitude will be toward the issues which will come before the convention. The committee on credentials examines the claims of contesting delegates; as a rule its report is adopted by the convention, and on the basis of it the permanent roll is made up and the regular business begins. Following the precedents set by long usage in the national party assembly, the state convention, after organization, proceeds to adopt a platform, nominate candidates, and transact whatever business may be specifically mentioned in the call. So far as the management of state party affairs is concerned, the state convention is generally supreme. It is bound by noth- ing save its own will, the theory being that the delegates coming "direct from the party voters" are the sovereign power within the party for the time being. Accordingly there is often no state constitution for the party, but each convention is regarded as an original and independent body, which may make its own rules 66o American Government and Politics of procedure; and for practical purposes it is governed only by the principles of parliamentary law and by precedents. It is of course the leading function of the poUtical party to nominate candidates for the various offices to be filled by popular election; and in this connection some of the gravest abuses of "machine" poHtics have arisen through the domination of con- ventions by sinister minorities and the enforced adoption of the "machine slate" by the delegates. Even the secure estabhsh- ment of the popular election of party delegates has not succeeded, in many instances, in breaking down the undesirable centraUzed control within the party, and through the apathy or ineffective- ness of the rank and file, candidates are often selected who sadly misrepresent the party. A very careful student of contemporary poHtics, who has had an opportunity to secure first-hand knowl- edge of the current practices, describes the system as follows: — The programme of the convention, in practice, is almost always decided upon down to the minutest detail, before the convention meets. The party leader or "boss" and his lieutenants discuss the relative claims of the candidates and decide who shall be nominated. The officers of the convention are agreed upon and their speeches revised. All this is outside the law which ignores the existence of the party leader and assumes that the delegates are free to exercise their own judgment. The real interest in the convention is usually centered in the secret conferences of the leaders which precede it and in which the contests over the nominations are fought out, sometimes with much stubbornness. The "slate" is finally made up by agreement between the leaders who control a majority of the delegates in the convention. The leaders of the minority may either surrender or they may register their protest by presenting the names of other candi- dates in the convention with certainty of defeat, for it is rare in state conventions that there is so equal a division of strength as to leave the result in doubt. While the leaders are settling what the conven- tion is to do, the delegates are left to their own devices, ignorant of what is going on in the "headquarters" where the leaders are assem- bled. They are not consulted and their advice is not asked. It often happens that they do not know whom they are to nominate until they hear for the first time in the convention hall the names of the candi- dates agreed upon by the leaders. Although the law gives them the right to bring forward the names of other candidates, they seldom exercise it and the delegate bold enough to disobey orders is regarded with disapproval. ^ i ^ Fuller, Government by the People, pp. 61-63. I State and Local Politics 66 1 The extent to which such practices prevail in poHtical con- ventions and defeat the will of party majorities is of course a matter for conjecture, but of the reality of the abuse and its fre- quent recurrence there can be no doubt. Local Party Organization and Methods Leaving out of account the congressional district organization, which, save in rare instances, is of no considerable importance in state poUtics, the basic unit in the state party machinery is the county organization. It consists of a chairman, a committee, and the conventions that are held periodically. The county convention is composed of delegates from lower units — towns, townships, precincts or election districts as the case may be. The county committee, as a rule, is also made up of representa- tives from certain local subdivisions, and the chairman is either chosen at the convention or by the committee. The county organization runs even into the great cities: the Cook county organization in Chicago, the New York and Kings county organi- zations in New York City, and the Suffolk county organization in Boston are already famous in the history of our local poHtics. Perhaps the most famous of them all is the organization of the Democratic party in New York county — the central portion of the great metropoHs — popularly known as Tammany Hall Dut officially known as the Democratic-Republican organization. The governing body in that organization is the county general :ommittee, which is composed of representatives from each as- embly district in New York county — the ratio of apportion- nent being one to every twenty-five Democratic voters. This nakes an enormous committee, numbering at the present time nore than 8000. It is theoretically a most democratic institu- ;ion, for its members come from close contact with small units )f party voters; but as a matter of fact its great size makes it n unwieldy body, so far as actual control over party business is ;oncerned. Its size is defended on the practical ground that it :nlists among the official workers of the party one man out of ;very twenty-five, and on the still more practical ground that t brings some $80,000 a year into the party funds — each mem- )er of the county committee being assessed $10 annually. The real management of the business in this county organiza- 662 American Government and Politics tion is in the hands of an executive committee composed of one leader from each of the thirty-five assembly districts. This leader is chosen theoretically by the members of the general committee for his district/ but as a matter of practice any member of the Democratic party in New York county who wants to be an as- sembly district leader ascertains the number of members to which his assembly district is entitled under the ratio of one to every twenty-five voters and then proceeds to make up his "slate" — a primary ticket containing his name first, followed by the names of his supporters; and if liis ticket wins at the primary, his slate thereupon theoretically proceeds to the formal task of naming him "executive member." In order to centralize control in the hands of the executive committee, a rule has been adopted that each new member of that committee must be approved by the retiring committee, and if he is not so approved, the retiring committee may itself select an executive member in his stead — in other words, an executive committee once in power may per- petuate its control. The executive committee and the men intimately associated with it, although often unofficially, virtually control the govern- ment of the party and the City of New York whenever the party is in power. They control the finances of the county organiza- tion, disburse the funds, agree upon the distribution of city offices, and decide the poHcies of the board of aldermen and other branches of the city administration.- Prominent in the councils of the executive committee are the leaders and officials in the social organization known as Tammany Hall.^ The Democratic county organization has its regular officials, president, treasurer, secretary, and other minor officers, but the directing power in the organization is usually in the hands of some astute leader who may or may not occupy an official posi- tion in the party, but must "control" a majority of the executive committee. For the purpose of making county nominations, the Democratic organization of New York county holds periodical conventions composed of delegates from each assembly district.- The con- vention is called to order by the president of the county general ^ See above, p. 473. 2 For Mr. Croker's famous description of the system, see Readings, p. 567. ' See above, p. 135. State and Local Politics 663 committee, who acts as chairman unless a majority of the con- vention direct otherwise. As a matter of practice, the business of the county convention is for the most part determined in ad- vance by the leaders in the executive committee and the conven- tion merely ratifies the nominations made by that body. So formal are the proceedings of the county convention that as a rule it is able to transact all its business within not more than two hours. The New York county RepubUcan organization is, in many respects, modelled on that of the Democratic system. There is a general committee composed of delegates elected from each assembly district at a ratio of one to every 200 Republican voters — a ratio which makes a much smaller general committee than that of Tammany Hall, the number at the present time being about 650. There is also an executive committee, composed of one member from each of the thirty-five assembly districts into which the county is divided, and elected by the voters at the primary. The general committee has a president, and the execu- tive committee has a chairman. The chairman of the executive committee has the power of appointing and removing election inspectors, poll clerks, and ballot clerks — each of the two great parties being assigned a certain number by law. The election officers are suggested to the chairman by his district leaders, and where the district leader is not in sympathy with the chairman he is likely to have his inspectors removed if there is a fight at the primaries. Ward Politics The basic unit of the county organization is the precinct, ward, or election district, — the lowest poHtical subdivision of the state, — the unit in which the polhng place is stationed and in which party delegates to the conventions of the larger units are chosen.^ Here it is that the party workers come into immediate contact with the voters; here it is also that pubHc opinion may be or- ganized to bring pressure to bear upon the party machinery. It is of fundamental importance, therefore, that the party should have in each precinct, ward, or election district, as the case may be, at least one loyal and tried worker, personally acquainted ^ In the city of New York two election districts are combined to make a primary district. 664 American Government and Politics with a large number of the voters atid trained in the art and science of winning votes. If this party worker, in the lowest poHtical subdivision, represents the interests and aspirations of the party voters in his district, we have a representative party organization. If, on the other hand, the ward leader is appointed, sustained, and financed by some body "higher up," the whole party organization may be lifted out of popular control and vested in the superior officers who are in charge of the base of supplies. Vote-getting "pays" in the economic sense of the word, for the man who can deliver votes can exact the price from those who are wilHng to pay for the dehvery, and it has therefore come about, in too many instances, that party members, en- grossed in the struggle for livelihood, neglect to do their share in party work and the organization falls into the hands of those who make it their business to be always on guard. In New York City, each county is divided into assembly dis- tricts, each of which has a committee, composed of the committee- men serving for the district in the county committee, and also an assembly district leader who is at the same time a member of the county executive committee. The assembly district is in turn divided into election districts, and in each election district there is an election district captain who is almost always actually appointed by the assembly district leader, who is, as noted above, at the same time a member of the county executive committee, which directs the general business of the county organization. Thus a poHtical hierarchy is organ- ized, running down from the state committee through the county executive committee to the election district captain, — an or- ganization which is financed, as a rule, not by innumerable small contributions from the party workers of each district, but by large contributions from men who generally exact a price from those whom the party nominates and places in governmental offices.^ ^ Organizations once created and controlling sources of power tend to perpetuate themselves and become institutions. Mr. Herbert Spencer relates an amusing story of a society founded in England for the purpose of securing the enactment of certain legislation by Parliament. It had its president, secretary, treasurer, paid workers, and generous contributors, and after a long season of agitation it succeeded in securing the passage of the bill which it had been advocating. Mr. Spencer, in calling at the head- quarters of the society, expected to find general rejoicing, but to his surprise State and Local Politics 665 The prime qualification of the loyal election district captain is subserviency to the leader of the assembly district/ The latter is the "executive member" from the district, and at the county meet- ings, his influence is measured by the vote his district casts and by the union existing among the election district captains of his district. He is the oflicial distributor of the patronage which is allotted to his district, and unless he is supported by a united force of election dis- trict captains, the patronage may be withheld to "cause no hard feeUngs " among the rank and file. Therefore, before a name is placed on the ticket for "president," i.e. captain, of the election district, the person bearing that name must swear loyalty to the district leader, and his promise must be obtained to support that leader should there be any fight at the primaries. In return for this support, the election district captain is designated as inspector at the various elections. To him is intrusted the selec- tion of poll clerks and watchers, and any money that may be sent throughout the election district is distributed by him. This is a most important task of the election district captain, and the proper distribution of the money held by the county officers for campaign purposes is a difficult task. Each election district captain endeavors to have his allowance as much as possible, and desires that he shall re- ceive no less than any other election district captain. The captain is permitted to recommend persons in his district for vacancies in the civil service, and is at fiber ty to recommend candidates for the minor elec- tive offices. He is a member of the assembly district cabinet, and at local conventions heads delegations from his election district. The chairmanship is his because all delegates to the conventions are selected by him before being placed on the primary ticket. The wise captain does not take it upon himself to name all the delegates, but in some convenient " watering place," he calls a meeting of all the voters of his district and allows them to make suggestions as to who should be the delegates. It is the last-mentioned power that gives the election district cap- tain his place. He is the party official who stands closest to the people, and by wise methods leads the voters in his district to beheve that he found universal sorrow, for the achievement of the purpose for which the society was founded abolished the lucrative offices which it had maintained. The same principle often applies to political organizations. ^ This description of the work of an election district captain applies gen- erally to a certain party organization in Kings county, New York (Brooklyn), but it is fairly applicable to similar organizations in large cities. The description is furnished by an experienced party worker who has personal knowledge of the matters of which he writes. For additional illustrations, see Readings, pp. 579 flf. 666 American Government and Politics they are the working force of the party, and still w^orks in such a manner as to permit them to do nothing that will disturb the peace of mind of his overlord, the assembly district leader. He will call a meeting of the voters of his district and ask them to select delegates to conventions; he will impress upon these delegates the necessity for harmony in the ranks if his election district is to be "recognized" in the distribution of the "loaves and fishes"; he will appeal to their party loyalty, and impress them most strongly with the virtues of his leader by inviting them to partake of " a little refreshment," in his honor, and on the night of the convention will gather the delegates together and march with them to the convention hall, making sure that all bitter feelings are subdued and quenched along the line of the march. The election captain is looked to by his boss to get out every voter of the party in his district at the regular elections and on registration days. If there is a fight between factions at the primaries, he is charged with dehvering to his overlord every possible vote. His power in the assembly district meetings is measured by his ability to deliver the party vote for the candidates of the party, and any split ticket in the district is marked against him. Nothing must interfere with getting every party man to commit himself before a primary fight. How each man will vote at the primary contest must be known to him and reported to the leader of the assembly district before primary day, and every possible means of gaining support must be used. A list of all the newcomers into the district must be made by him, and the names of all party men who leave the district must be sent to the assembly district leader. Every young man who leans towards the party, and is twenty years of age, must be known by him, and all efforts must be made to secure his enrolment with the party on his twenty-first birthday. The captain knows the business of all party men in his district, and his pockets are almost filled with the business cards of his electors. He exerts all his efforts to find the "vulnerable spots " of the voters and to work on those spots. A young lawyer, for instance, is given a case, which the captain knows of, but on examination it is found that the statute of limitations has barred it years ago. But the young lawyer feels complimented by the leader's apparent interest. He never dreams that anything but interest in him prompted the leader. The captain's time is given almost exclusively to making the acquaintance of the party men in his district. He has a corner office where he sta- tions himself at a certain hour and there holds forth to all his acquain- tances, especially the younger men. All that the captain does, however, has for its purpose the strength- ening of the assembly district leader. If he displays the sUghtest aspi- State and Local Politics 667 ration to assume the district leadership himself, all the force possible is employed against him. He must impress upon every voter the •virtues of his master, and all objections to that master's leadership must be answered by a declaration of loyalty. When the assembly district leader has stated his choice of candidates for either appointive or elec- tive offices, the captain must use all his influence to quiet any opposi- tion and must dehver delegates to support the leader's candidates. The captain must bend to the leader's will or throw over the captaincy, or, under the method of election now used, defeat the leader and himself place a ticket in the field in opposition to the leader's ticket at the primaries. This last method is possible, because although a leader may gain sufficient votes throughout the district to elect himself leader, still each election district votes for its own officers and may elect officers who are not in sympathy with the district leader. In one assembly district in Brooklyn, out of twenty election districts, nineteen went for the candidate for assembly district leader in a recent primary, and one against him, and this one elected a bitter opponent of the leader and one who aspires to the assembly leadership. This is a good illustration of the popular power that may be exerted in the RepubHcan party in Kings county and accounts to a great extent for the weakness of the "machine" on many occasions. To the young man entering the political field, the election district captain is the most accessible party man. He is open to all visitors and does not hesitate to give the young men an opportunity to go as delegates to the various conventions. At the district cabinet meet- ings he may mention the young man to the district leader and rec- ommend that he would make a good candidate for some minor office. He may also aid in having the young man delegated to the county convention, and, if he is strong enough, may have the district leader name him as a delegate for the state convention. It is at the pri- maries that the young man can begin his active pohtical work, and there, in nine cases out of every ten, he must begin his work. The Sources of Party Strength It is evident that parties cannot exist without organization and that organizations of permanent workers cannot exist with- out funds, and that the funds must be derived from some place — • either from loyal party supporters or from privatepersohs and organizations expecting to derive monetary advantages from the victory of the organization to which they contribute. It becomes necessary, therefore, to examine the sources from which a party organization must expect to derive its sustaining funds. 668 American Government and Politics I. There are, in the first place, the public offices which are to be looked forward to as the legitimate reward of party services. The adoption of the principles of civil service reform has reduced to some extent the relative number of offices to be filled by par- tisan workers, but nevertheless there remains an enormous number of federal, state, and local offices to be distributed. It is estimated that the political appointments within the gift of the President have an annual value of more than $12,000,000. The multiplication of the functions of state government tends to place an ever larger appointing power in the hands of the governor and the state senate or some other central authority. Every state legislature has within its gift appointments to legislative offices and positions to employ for partisan purposes, usually free from civil service control. For example, there are sergeants- at-arms and assistant sergeants-at-arms, principal doorkeepers, first and second assistant doorkeepers, journal clerks, executive- clerks, index clerks, revision clerks, Ubrarians, messengers, post- masters, janitors, stenographers, and messengers to the various committees and assistants first and second, too numerous to men- tion — the legislature of New York costs the state for its mere running expenses alone more than $800,000 a year. Then there are the city offices, high and low, steadily multiplying in num- ber and, in spite of the civil service restrictions, to a large extent within the gift of the poUtical party that wins at the polls. Fi- nally there are the election officers, a vast army of inspectors, ballot clerks, and poll clerks for the primary and regular elections, who derive anywhere from $10 to $50 a year for their services. New York City spends annually more than $400,000 in paying the officials who preside at primaries and elections. 2. In the next place there are the levies on the candidates. Generally speaking, no one can hope to be elected to office to-day without being nominated by one of the poHtical parties. The party organization wages the campaign which carries the candi- date into office, and what is more natural and just than the demand that the candidate shall help to pay the legitimate expenses of the campaign? It is a regular practice, therefore, for party organizations, state and local, to levy tribute from candidates for nominations as well as from nominees to office — generally in proportion to the value of the office they seek. Mr. Wheeler Peckham testified before the Mazet Commission in 1899 as fol- State and Local Politics 669 lows: "It is generally assumed that a candidate for a judicial position [in New York City] pays somewhere or other, either for nomination or election, or assessment in some way, quite a large sum. Judges have spoken to me about assessment and deprecated the existence of it very strongly. I suppose the amount paid would range between $10,000 and $25,000.^ . . . I assume that referees are to a great degree appointed with ref- erence to the judge's recognition of the political party or poHtical organization that nominated or elected him, and to which he owed his nomination. Judges of the courts here recognize their obUgation to the political organization which elected them, and they have a desire, and it is carried to a greater or less extent in the distribution of the patronage that belongs to them, to recognize that fact." ^ There are in addition levies on office- holders, after election, even in spite of the laws forbidding this practice. Office holders do not always wait to be pressed by the party in this matter. It is not expedient to wait. 3. The construction of parks, school buildings, highways, and other pubHc works is a fruitful source of revenue to the party organization which controls the letting of contracts. High bids may be accepted on the condition that the surplus shall go to the party war chest or to party leaders. The capitol building and grounds at Albany cost the state nearly $25,000,000, and the plunder of the pubHc treasury in the construction of the capitol at Harrisburg is a matter of recent history. 4. Undoubtedly the most fruitful source of revenue for party organizations within recent years has been contributions from corporations (now frequently forbidden by law). Railway, insurance, banking, gas, electric, street railway, telegraph, express, telephone, and other pubHc service corporations must receive many privileges from cities and states. They must secure fran- chises in the first place, and some must have permits to tear up streets and highways, and extend their operations in various forms. To secure special favors, for which they ought to pay large sums to the public, corporations too often find it cheaper and easier to contribute handsomely to party organizations and to have the organization "control" the proper officials. Very ^ The salary of some judges is $17,500 a year and the term fourteen years. 2 Report of the Special Committee of the Assembly Appointed to Investigate the Public Offices and Departments of the City of New York, Vol. I, pp. 358-360. 670 American Government and Politics often, also, party leaders compH corporations to pay heavily for securing permits to which they are legitimately entitled, and in such instances corporations usually find it easier to pay than to go to law or argue. Mr. H. H. Vreeland, prominent in financial circles in New York City, testified during a grand jury investigation in 1908 that he had contributed five years before on behalf of a certain corporation $20,000 to Mr. Odell, chairman of the Republican state committee and $16,500 to Mr. Murphy, leader of the Tammany Democracy in New York City.^ The way in which the MetropoHtan Street Railway Company had to deal with New York poUticians he further described in the following testimony: Question: In these corporate ventures that you have been con- nected with of a large character, have you found that the favors to politicians, contributions to political parties, election expenses, have been of value or were commonly esteemed to be of value to the corpora- tion? Answer: I have found that they were esteemed to be of value. Question: Is it necessary for the Metropolitan Street Railway to open the streets of New York a great deal? Answer: Yes, Sir. Question: Whenever they want to open a street they have to get the permit countersigned by the Borough President and the Commis- sioner of Gas, Electricity, and Water Supply? Answer: Yes, Sir. Question: Each of them has got to sign a permit before it is opened? Answer: Yes, Sir, and whenever the property is adjacent to a park it has to be signed by the park official. Question: An antagonistic water, gas, or electricity official could impede somewhat the work of the railroad company in the city here? Answer: Very materially. Question: Did you ever have any experience with being impeded in that way? Answer: Yes, Sir; I have a number of instances. Question: And afterwards were those impediments withdrawn? Answer: They were. Question: Withdrawn without legal process? Answer: Yes, Sir. Question: Was the method of securing those withdrawals such that led you to believe that it had been by cultivating in some way the favor of these officials? Answer: There was no action of any kind that would give me any impression on it, because a permit would be in the [proper city] office and under the best endeavor we could not get it, and all of a sudden it was signed and sent up to our office. Question: You have no doubt in your own mind as to why the ' New York Times, April 23, 1908. State and Local Politics 671 permit was given — somebody was "seen," and therefore the permit was given? Answer: I would have a very strong idea that some- thing had been done. 5. The most despicable source of party revenue is that derived from the protection of saloons, gambling, and vice in every form. The extent to which this opportunity is exploited is, of course, difficult to determine; but indisputable evidence from cities as far apart as San Francisco and New York illustrates only too painfully the way in which party war chests are sometimes augmented by stained money drawn from criminal elements to which police immunity is afforded.^ Although the exact amount of money collected by various poKtical organizations from time to time is difficult to ascertain, the total levied in any year of a general election undoubtedly reaches a fabulous sum, and this money is applied largely to the conduct of campaigns, although some portions of it frequently find their way into the private exchequers of party leaders. It is spent for printing, advertising, hiring halls, securing speakers, and paying the rank and file of party workers. Undoubtedly large sums find their way through some of the election district captains to venal voters. The extent of the purchasable vote is, of course, impossible to state; but a careful study of Rhode Island made some years ago placed it between ten and twenty- five per cent of the total number.^ Every worker in practical politics, although he may not acknowledge it, probably knows that votes are bought, sometimes grossly by outright purchase at a fixed price, and at other times in more subtle ways, as for example, by paying railway fares and expenses for electors going home to vote, paying countrymen to come out to vote, and employing party workers with the tacit understanding that they have little or nothing to do. It is by no means through money alone that the party organiza- tion may maintain its strength. The party, like a church or any other organization, may be used as a social club through which the young man may make valuable acquaintances who can help him in securing business, clients, or patients as the case may be. The very power of the party organization thus enables it ^ For the testimony of Police Captain Schmittberger before the Lexow Investigating Committee in New York, see Readings, pp. 505-508. 2 See article on " Venal Voting, " in the Forum for October, 1892. bjz American Government and Politics to intrench itself by drawing within its rank the best energies and talents of young men who, though by no means void of patri- otic motives, cannot be oblivious to the stern necessities of the struggle for %xistence. In some cities, it is well for the young lawyer practising in certain courts to be known as a prominent worker in the party to which the presiding judges belong. A Democratic doctor in a strongly Republican district of some northern city would doubtless find his rise in the world some- what handicapped if he were overzealous in the support of his party, and a belligerent Republican lawyer in a southern city might very well find his business limited to practice in the federal courts. The subtle influences of party control are doubtless more powerful than the gross influences which appear upon the surface. The last, but by no means the least, powerful element in organized politics is the management of the voters. Party leaders and workers assist the poor voters by a thousand chari- table acts. They give outings, picnics, clam-bakes, and celebra- tions for them; they help the unemployed to get work with private corporations or in governmental departments; they pay the rent of sick and unfortunate men about to be dispossessed; they appear in court for those in trouble, and often a word to the magistrate saves the voter from the workhouse or even worse; they remember the children at Christmas; and, in short, they are the ever watchful charity agents for their respective neigh- borhoods. A kind word and a little money in time of pressing need often will go further than an eloquent tract on civic virtue.^ Thus pontics as it works through party organization is a serious and desperately determined business activity; it works night and day; it is patient; it gets what it can; it never relents. Election Laws The frequent abuses connected with party organizations and operations, as we have seen,- have led to elaborate laws con- trolling the entire election process from the enrolment of the voters to the final review of the official count. It is impossible to set down here in any detail the provisions of the election law of a single state, — the election law of New York is a volume of ^ See Readings, pp. 579 ff. ^ Above, p. 139. State and Local Politics 673 about 250 pages of ordinary print, — but the following principles are now to be found in the legislation of any fairly advanced commonwealth : — 1. Certain officers — the secretary of state, county clerks, and in some instances special authorities — are placed in charge of the entire election process. 2. Provisions are made for bi-partisan boards of poll clerks, ballot clerks, and election inspectors in each polling place within the state. 3. Duly authorized watchers from each party may be present at each polhng place in order to secure a fair count. 4. Standard and official tally sheets, or records, on which to make the returns of each polling place, are furnished, and all returns must be certified by the proper officers in charge. 5. Special arrangements are made to police polling places, and saloons are usually closed on election days. 6. In order to secure to every citizen, properly qualffied, the right to vote, official registers of voters are prepared before each election, and each citizen is entitled to enter his name so that on election day his right may be reahzed. A most drastic scheme for preventing false registration was created in New York, in 1908, by a law requiring the personal identification of voters in cities of 1,000,000 or more inhabitants. ^ According to this law the voter, on registering, in addition to answering the ordinary questions, must give the number of the floor or room in which he lives and the name of the householder or tenant with whom he Uves; he is furthermore required to sign his name if he can write, and when on election day he appears to vote he must again sign his name opposite the first signature. In case the voter is unable to write, he must answer a long list of questions with regard to his private affairs, residence, and employment; and when he appears on election day he is required to answer the same questions. By a comparison of the signatures or the answers to the questions, the election officials are able to detect frauds and thus prevent from voting a large number of "floaters" and "repeaters." There is no doubt but what the effect of the law has been most salutary. 7. Finally, we have a long line of important legislation on the ballot — designed to prevent intimidation by securing secrecy * California already haxl a similar law. 2X 674 American Government and Politics to the voter, and to encourage independent and discriminating choice from among the variqus candidates in place of the blind acceptance of party nominations. Legislation of this character is now so prominently before the public and the principles 'in- volved are so important that it seems desirable to go into the matter at some length/ elaborating the general statements made above.^ Prior to 1888 the printing of ballots for use in the election of public officers, and their distribution to the voters, was left to private initiative — subject generally to a few statutory regula- tions as to their size, color, form, etc., chiefly designed to produce uniformity and to prevent the use of misleading or deceitful forms of ballot. In actual practice the ballots were printed and distributed by the several party organizations, prepared by the voters — in case any "scratching" of party candidates was to be done — before going to the polls, and, when taken to the polhng place on election day, merely deposited in the ballot-box in plain view of all present. In most of the states the statutory provisions deahng in any way with the preparation or use of ballots were comparatively brief and simple. The Kansas law of 1868 is a fair example.^ Its pro\dsions are as follows: — " § 7. Manner of voting. Each elector shall, in full view, deliver to one of the judges of election a single ballot or piece of paper, on which shall be written or printed the names of the persons voted for, with a proper designation of the office which he or they may be intended to fiU. " § 8. Duty of Judge; ballots how disposed of. The judge to whom any ticket may be delivered shall, upon the receipt thereof, pronounce, in an audible voice, the name of the elector, and, if no objection shall be made to him, and the judge is satisfied that the elector is legally entitled, according to the constitution and laws of this state, to vote at the election, he shall immediately put the ticket in the box without inspecting the names written or printed thereon, and the clerks of the ^ Note. — For the entire statement given here with regard to recent ballot legislation I am indebted to Mr. Arthur Crosby Ludington, who has generously prepared the manuscript fpr me after long and critical examina- tion of the whole subject. For a fuller account, see his article in the South Atlantic Quarterly for January, 1910, and his chapter in the New York Library Bulletin of Legislation for 1910. 2 See above, p. 141. 3 Gen. Stat., 1868, ch. 36, Art. 2. State and Local Politics 675 election shall enter the name of the elector and number in the poll- books ..." There was usually some provision for checking off the names of voters on the registry list or poll lists as they voted, so that the total number of ballots cast could be accurately determined and ballot-box stuffing prevented. There were also penal provisions to guard against violence, intimidation, ballot-box stuffing, "repeating," voting without being quahfied to vote, bribery, false swearing when challenged, non-performance or mal-performance of duty by election officers, etc., — in short, the grosser varieties of election offences. This system of so-called "vest-pocket" ballots was found, as party rivalry became more intense, to be deficient in many respects, and open to the most serious abuses. Chief among its defects was its utter failure to provide for secrecy in voting. Since the voter could be watched from the moment a ballot was handed to him somewhere outside the polling place until he de- posited the same in the ballot-box, it could easily be ascertained whether he had, according to the modern phrase, "delivered the goods." The result of this was to facilitate and encourage bribery. Another result was that persons economically dependent, being deprived of the protection of secrecy, were coerced into voting as others bade them, or punished if they disobeyed. The ex- pense of printing the ballots, moreover, while not a heavy burden on the party organizations, was large enough to act as a deterrent on independent candidacies; and such tricks as the distribution to voters of one party of ballots bearing the name or emblem of that party but the candidates of another, or of ballots containing the wrong candidates for certain offices, while usually forbidden under the penal law, v/ere nevertheless common. The prevalence of these abuses, especially in the presidential campaign of 1884, aroused a strong movement for reform^ and finally led to the adoption by most of the states of the so-called "Australian ballot system." The principal features of this system may be outlined as follows; I . All ballots used in elections of public officers (except, usually, certain minor local elections) are printed under the direction of 1 Described in an article by W. H. Glasson on " The Australian Voting System," South Atlantic Quarterly. April, 1909. Above, p. 141. 676 American Government and Politics public officials, at public expense, and are distributed by these officials to the various polHng places prior to the election. 2. Each ballot contains on a single sheet the names of all the candidates duly nominated by any poHtical party or independent group, whose names have been certified to certain designated pub- lic officers a specified number of days before the election, and is protected against counterfeit by an official indorsement on the back. 3. Ballots are obtainable by the voters only within the poUing places, on election day, from the regular election officials, and are to be marked in absolute secrecy in voting booths provided for the purpose, folded so as to conceal the marking on the face and yet leave exposed the official endorsement on the back, and re- turned to the election officers to be deposited in the ballot-box, before the voter leaves the polling place. 4. Special safeguards — in addition to those contained in the earUer American laws — are usually provided to insure that the official ballots shall not be lost or stolen, or their contents di- vulged prior to election day (except as the pubhcation or distri- bution of sample ballots is permitted); that none but official ballots shall be. cast or counted; that the number of ballots counted shall correspond exactly with the number of persons voting, and that the ballot actually cast by each voter shall be the identical one given to him by the election officers (these last two objects are usually sought to be attained by a system of detachable, numbered stubs) ; that no official ballot shall be left unaccounted for when the election is over; that no electioneering shall be done in or around the poUing place; that only the election officers, the duly appointed watchers of each party, and a specified number of voters shall be allowed within the polKng place at any given time; that no voter shall place any mark upon his ballot tending to identify it as having been cast by him, or shall divulge, while in or near the polling place, how he has voted; and that no election officer or other person shall attempt to discover, or having discovered shall in any way disclose, how any voter has voted. The first law adopted in the United States embodying the es- sential features of this system was enacted by the legislature of Kentucky and approved by the governor on February 24, 1888, and went into effect at once.^ It applied only to munici- ^ Laws, 1877-78, ch. 266. State and Local Politics 677 pal elections in the city of Louisville. In this act the EngUsh and AustraHan models were quite closely followed. All candi- dates were to be nominated by petition, and their names were to be printed on the ballot in alphabetical order under the title of each office to be voted for, and without party designations of any sort. This act, on account of its failure to recognize in any way the peculiar party system which had grown up in this country, was afterwards followed as a model by but few other states. A statute which has been far more generally copied, and which has often received the credit of being the first AustraHan ballot law adopted in the United States, is the Massachusetts act of 1888.^ In this act the original AustraHan system was modified by the recognition, in several respects, of the party organiza- tions. A poHtical party was defined for the purposes of the elec- tion law, the criterion being the casting of a certain percentage of the total vote at the preceding state election.^ Any group of voters conforming to this definition was allowed to nominate, by caucus or convention of delegates, one candidate for each office to be filled at any election, and to secure the placing of his name on the official ballot by means of a "certificate of nomination," signed by the presiding officer and secretary of the caucus or convention, and filed with the secretary of the commonwealth, or the officer charged with the duty of having the ballots printed, a certain number of days before the date of the election. The name of each candidate so nominated was to be foUowed on the ballot by the designation of the party which had nominated him. For the sake of independent voters, and of newly formed political groups, it was provided that candidates might also be nominated by means of "nomination papers," signed by a prescribed num- ber of qualified voters, and that any voter might write on his ballot, in blank spaces provided therefor, the names of any other persons whom he wished to vote for as candidates for any office.^ The names of all the candidates, however nominated, were to be arranged in alphabetical order under the title of each office. ^ Acts 1888, ch. 436; approved May 29, 1888; went into effect Novem- ber I, 1889. 2 Other criteria have since been adopted in different states. ^ This latter provision was merely continued from the earlier American laws, having generally been held by the courts to be a right constitutionally guaranteed to the voter. - 678 American Government and Politics >piea ^ A third statute, which has since been even more widely copi( than that of Massachusetts, was the Indiana law of 1889.^ This act represented a still further compromise with the American party system. It provided for a form of ballot — which has since come to be known as the "party column" form — on which all the candidates of each party were grouped in a separate col- umn, the columns being placed side by side with the names of all the candidates for any one office on the same horizontal line. At the head of each column was placed the name of the party and some simple device or emblem selected by the party to designate its candidates; also a circle, usually known as the "party circle," by a single cross-mark in which the voter could vote for all the candidates in the "party column" below. This special method of voting a "straight ticket" has usually accompanied the "party column" form of ballot, and, as was demonstrated by the late Philip Loring All en, ^ has had a most important effect in discourag- ing independent voting and preserving intact the two great party organizations. In this same year — 1889 — six other states adopted Austra- lian ballot laws, and Connecticut also passed a halfway measure providing for separate, unofficial ballots for each party, printed (as under the Louisiana law of 1877) on paper officially furnished, and to be inclosed (somewhat as under the Utah law of 1878) in ofiicial envelopes obtainable only at the polling places. From then on the progress of ballot reform was rapid.^ ^Laws, 1889, p. 157; App. March 6. 2 Mr. Allen, in a thoughtful and convincing article on "Ballot Laws and Their Workings," in the Political Science Quarterly for March, 1906, came to the conclusion that where the marking of each individual candidate on the ballot is compulsory the voters exercise from twice to ten times the discrimination among the candidates shown under the other ballot systems which favor straight voting. At the bottom of the scale in proportion of independent voting are the states requiring the voter to write or paste in names whenever he wishes to "scratch his ticket." ^ In 1890 five states and one territory adopted Australian ballot laws, Kentucky passed laws similar to the Louisville act of 1888 for four other cities, and New Jersey and New York enacted compromise measures, some- what more advanced than the Connecticut act of 1889, providing for a sepa- rate oflScial ballot for each party (and, in the case of New Jersey, for official envelopes). la 1 89 1 seventeen more states and another territory were added to the ranks. State and Local Politics 679 At the close of 1896, only eight years after the first law was adopted in this country, there were thirty-eight states and two territories with state-wide Australian ballot laws, two more (Tennessee and Texas) with Austrahan ballot laws applying to cities or counties above a certain size, and two others (Connecticut and New Jersey) with halfway laws embodying certain features of the AustraKan system. In the whole United States only Georgia, the two Carolinas, and New Mexico had as yet failed to adopt the reform to some extent.^ At present, forty states and one territory have state-wide Austrahan ballot laws, two states (Tennessee and North Carolina) have similar laws which are not state-wide, two states and one territory (Missouri, New Jersey, and New Mexico) have halfway measures embodying certain features of the Australian system, and only Georgia and South Carolina remain totally unregenerate. The more important forms of ballot which have been used in this country since the adoption of the Australian system (not counting the compromise forms now used by Missouri, New Jersey, and New Mexico) may be divided into four principal classes. These are: First, the straight "Massachusetts" ballot, in which the names of the candidates of all parties (either with or without party designations) are grouped in order (usually in alphabetical order) under the title of each office, and in which there is only one method of marking the ballot — i.e. by means of a cross opposite the name of each candidate to be voted for. The model for this class is, of course, the Massachusetts act of May 29, 1888. Second, the "party column" form of ballot, In 1892 two more Australian ballot laws were enacted, and Kentucky for the first time passed a state-wide law. Two more states were added in 1893, one in 1894, one in 1895 — in which year New York abandoned the compromise system of 1890 in favor of the full Australian system as adopted by most of the other states — and, finally, two in 1896. ^ In 1897 Missouri abandoned the regular Australian ballot system (the only case in which this has happened) and adopted a system of separate official ballots for each party somewhat like that of New Jersey. In 1903 Texas adopted a similar system for the whole state. In 1905, however, this law was repealed and a state-wide, Australian ballot law adopted. In the same year New Mexico adopted the "separate official ballot" system. In 1909 Connecticut joined the ranks of the straight Australian ballot states, and North Carolina passed its first Australian ballot law to apply to one county. 68o American Government and Politics with special provision for voting a "straight ticket" by a single cross in the "party circle," or by some other method simpler than that by which a "split ticket" may be voted. The original model for this form of ballot is found, as above indicated, in the Indiana law of March 6, 1889. Third, the modified "Massa- chusetts" form, in which the grouping of the candidates' names under the titles of the several offices is preserved, but a special provision for voting a straight party ticket is added. The first states to adopt this form of ballot were Montana and Minnesota, on March 13 and April 24, respectively, 1889. Fourth, the modified "Indiana" form, in which the "party column" arrange- ment is retained, but with no special provision for voting a straight party ticket — the only method of marking the ballot being a cross opposite the name of each candidate to be voted for, just as in form number one. The earliest example of this form of ballot is the Missouri act of May 16, 1889, applying only to cities of over 5000 inhabitants. 1. During the earher years of ballot reform the most popular of these four forms was the first. In 1891 it had been adopted by sixteen states, as against thirteen which had adopted the "party column" ballot. In this same year, however, Washington changed over from the first class to the second, and from this time on the trend in the direction of the "party column" form was very marked. At the close of 1905 only ten states were found in the first class — using the Massachusetts ballot.^ In the last few years, however, this form of ballot (usually without party designation) has been adopted in a number of states for certain municipal, judicial, or school elections, and in 1909 Okla- homa adopted it in place of the "party column" form. Besides these actual changes there has been considerable agitation in a number of states in favor of the "Massachusetts" ballot, so that the tide may, perhaps, be fairly said to have turned. 2. The Indiana or "party column" form of ballot has been, ever since about 1 891, by far the most popular in this country, having been adopted, at one time or another, by thirty-five states. At the close of the year 1891 the group of states using ^ The eleven states which at present use it for practically all elections are Arkansas, Florida, Maryland, Massachusetts, Minnesota, Mississippi, Nevada, Oklahoma, Oregon, Tennessee (only certam cities and counties), and Virginia. j State and Local Politics 68 1 it numbered thirteen. In 1905 the number had risen to twenty- seven, which was [the high water mark. During the next three years it fell to twenty-six, but by the close of 1909 (if North CaroKna, where the "party column" form of ballot was adopted for one county, be included) it had again risen to twenty-seven.^ 3. The modified "Massachusetts" form of ballot, with special provision for voting a straight party ticket, has never been very widely adopted. At one time or another it has been tried by nine different states,^ but at present it is used by only three of these.^ The general testimony from those states which have tried it is that, in its practical working, it resembles far more closely the "Indiana," than the straight "Massachusetts," form. 4. The modified "party column " form of ballot with no simple way of voting a straight ticket has been even less widely adopted than that just mentioned, and it is at present used by only two states.* In its actual working this ballot resembles the straight "Massachusetts" form more nearly than does the modified "Massachusetts" form used by class number three. In a number of states separate ballots are provided for county, city, township, judicial, or school officers (or for one or more of these classes) when the latter are elected at the same time with state and national officers. This has been done in several states from the very start ; for example, in Indiana and Oklahoma. The practice was fairly common in the United States, prior to the introduction of the AustraHan system, of requiring separate ballots for different ofiices, or groups of offices, and an illustration of this may still be found in the laws of North and South CaroHna. When it is adopted in connection with the Australian system, however, the number of separate ballots is seldom as large as under the earher American laws, when it sometimes was as high as seven or eight. In recent years this practice has spread to a ^ The twenty-seven states belonging at present to this group are Alabama, Arizona, California, Connecticut, Delaware, Idaho, Illinois, Indiana, Kan- sas, Kentuc^cy, Louisiana, Maine, Michigan, New Hampshire, New York, North Carolina (one county). North Dakota, Ohio, Rhode Island, South Dakota, Texas, Utah, Vermont, Washington, West Virginia, Wisconsin, and Wyoming. 2 California, Colorado, Minnesota, Montana, Nebraska, North Dakota, Pennsylvania, Utah, and Washington. ' Colorado, Nebraska, and Pennsylvania. 4 Iowa and Montana. 682 American Government and Politics number of states, and is now in force in at least six states besides the two above mentioned.^ In a number of others constitutional amendments and questions submitted to popular vote are printed on separate ballots. The separate ballots for local or other can- didates are often of a different form from the general state ballot, and usually of a different color. One other point in regard to the form of ballot has had such an important practical bearing on the working of the several ballot laws that it deserves special mention. It is provided in nearly all the states which use the "Massachusetts," or the modified "Massachusetts," form of ballot that the name of each candidate shall be printed on the ballot in only one place. In addition, however, it is almost always provided (except where no party designations of any sort are allowed) that each candidate's name shall be followed on the ballot by the name of the party which nominated him, or, if he has been nominated for the same office by two or more parties or independent groups, by the names of all the parties or groups which have so nominated him. This arrangement is eminently fair to all parties and, since one person could hardly be allowed to run for several offices at the same time, is a logical part of the "Massachusetts" system. In 1 89 1, however, the provision that the name of any candi- date should appear in but one place on the ballot was adopted in Indiana. This was the first time that this restriction had been apphed in connection with a "party column" form of ballot, but from this time on it was adopted by one after another of the "party column" states, and it is at present in force in thirteen states of class one,^ and in both the states belonging to class two.^ Its effect, when combined with the "party column" arrangement, is to render the "fusion" of two or more parties very difficult. Each candidate whom the several parties combine to nominate can have his name printed, under this system, in only one column. In the other columns the most that can be done is to leave a blank space under the title of the office in question. In this case ^ These states are California, Idaho, Kansas, Ohio, Vermont, and Wis- consin. 2 These are Idaho, Illinois, Kansas, Kentucky, Louisiana, Michigan, North Dakota, South Dakota, Texas, Vermont, Washington, Wisconsin, and Wyoming. 3 These are Iowa and Montana. State and Local Politics 683 all straight votes for these parties are blank, as far as this office is concerned, unless the voter writes in the name of the fusion candidate — a thing which in actual practice few persons will take the trouble to do.^ For this reason a joint, non-partisan judicial nomination, or a "fusion" municipal campaign where one of the parties has combined with one or more independent groups to oust the dominant machine, stands very much less chance of succeeding where the restriction is in force than where a candidate's name can appear in the column of every party that nominated him. Governor Hughes, in vetoing a bill which, if passed, would have introduced this rule in New York State, said: "This measure is wholly indefensible ... as long as we retain the present form of ballot with its party columns, it would be a grave injustice to prohibit a candidate's name from appear- ing in more than one column." There is something to be said, however, in favor of the rule. Where it does not exist minor parties are often formed merely for the purpose of selling out their columns on the ballot to one of the larger parties for what- ever they can get in exchange. Even if the minor parties or groups are entirely genuine, their multipUcation results in a monstrous and unwieldy ballot (sometimes with nineteen columns, such as was necessary in New York City in 1909). The logical remedy, as Governor Hughes pointed out in the veto message above cited, is the adoption of the "Massachusetts" arrange- ment. Until this has been accompUshed, however, the advan- tages which accrue to the cause of non-partisanship from an easy method of fusion far outweigh the disadvantages due to the absence of the limitation in question, especially in the case of large cities. These considerations led to the repeal of a provision of this sort in Ohio in 1906.^ It would be interesting to trace the history of other points relative to the form of the ballot and the rules for marking, such as the provision,- usually held by the courts to be required under the state constitutions, that the voter may write in the name of any person whose name is not printed on the ballot as a can- didate for any office, the use of "pasters" in marking the ballot and the reasons why this has generally been aboHshed, and ^ Todd V. Board of Election Commissioners, 104 Michigan, 474; L. R. A., Vol. XXIX, p. 330; "McCrary on Elections," 4th ed., p. 505. '^ A similar provision was declared unconstitutional in California in 1902. 084 American Government and Politics finally, certain minor, but nevertheless important, details in regard to the printing and arrangement of the ballot. It would be even more interesting to discuss the actual working of the various forms of ballot and the practical reasons for the numerous changes which have been made,^ but any attempt to treat these subjects satisfactorily would require too much space. Besides the various changes noted in the form of the ballot and the rules for marking, the original Australian ballot laws have been considerably altered and elaborated in other directions. The procedure for placing the names of candidates on the ballot has been constantly amended, and most of the provisions in regard to the form of nomination certificates and petitions, the method of obtaining signatures to the latter, the time and place of filing, the choice of the party emblem (where one is used), the filUng of vacancies when candidates die, resign, or are found to be dis- quaHfied, the settlement of disputes as to the "regularity" of two or more contesting claimants for a party nomination, the certification of nominations by the officers with whom they have been filed to the officers whose duty it is to supervise the actual printing of the ballots, etc., — have been worked out and stated in far greater detail than was considered necessary originally. Another portion of the several laws which has undergone more or less amendment is that which deals with the actual furnishing of ballots and other stationery, the equipment of the polling places, and the preparations for the holding of an election. In a number of states ampler provisions than formerly have been adopted for the publication, prior to an election, of the lists of candidates of the several parties, and of the constitutional amendments and other measures, if any, which are to be voted on. The provisions regulating the distribution of the ballots to the several polling places have, in most cases, been made more specific, and the procedure to be followed in case the official ballots are lost, stolen, or destroyed has been more carefully defined. Finally, in many of the states, the rules for the handling of the ballots on election day and the general conduct of the elec- tion, including the counting of the vote, have been from time to time amended with a view to the securing of greater secrecy and ^ Certain sides of this question were very suggestively treated by the late Philip Loring Allen in the article above cited. State and Local Politics 685 the more effectual prevention of fraud. The development in this direction has been particularly noticeable in those states where organized effort to win elections by fraudulent means has been carried to the highest point of efficiency. Just as in the familiar contest in the field of naval construction between high- power projectiles and still more powerful defensive armor, so every advance in the direction of greater rigor and minuteness in the provisions of the election law has been met by a more than cor- responding systematization and perfection of the methods for evading such provisions. This process is particularly interest- ing to trace in New York state (which has, on the whole, the most complete and highly developed election law of any state in the Union, — though those of Massachusetts and California are very close rivals, and on certain specific points both they and those of other states are in advance of the New York law). As any de- scription of the development of the various statutes along this line would necessarily be a lengthy matter, and as it would in- volve a discussion of other parts of the election law than that which is directly affected by the Australian ballot system — for example, the subject of registration — it cannot here be attempted. In general, it may be said, however, that the de- velopment of ballot laws has been carried farthest in the larger states, especially in those which contain great cities and in which the parties are most evenly balanced. In such states as Florida, Mississippi, Nevada, and Maine there have been scarcely any changes since the Australian system was first adopted. Primary Election Laws ^ State legislation now goes behind the regular official elections and controls to a greater or less extent the structure and opera- tions of the several parties.^ I. At the outset, the legislature must determine the character of the political associations which are to be brought within the purview of the law, for groups with sUght numerical strength or formed for only quasi-political purposes are obviously outside ^ See Merriam, Primary Elections. Professor E. C. Meyer is revising his Nominating Elections for early publication. 2 See above, p. 142. 686 American Government and Politics the scope of primary legislation. In meeting this problem of definition, two rules have been devised. It is sometimes the practice to extend the application of the law only to those poHt- ical associations which cast a fixed number of votes for some specified candidates at the preceding state election. New York, for example, places the minimum at ten thousand votes for governor, and specially exempts from the operation of the law organizations and associations of citizens for the election of city ofiicers, providing that membership in such an association shall not prevent the elector from enroUing with and acting as a mem- ber of a political party. The more frequent practice, adopted by the most recent statutes, is to determine upon some percent- age of the entire vote which any political organization must cast in order to bring it within the view of the law. The Iowa statute of 1907 includes in the term "political party" any organization which at the last preceding general election cast for its candidate for governor at least two per cent of the total vote cast at that election. Oregon defines a poUtical party as an affiliation of electors representing a political organization which at the pre- ceding general election polled for its candidate for Congress at least twenty-five per cent of the entire vote cast for that office in the State. (Law of 1905.) II. After the definition of what organizations shall come within the purview of the law, it is next imperative that some precise and regular mode should be provided for determining who are entitled to membership and voting rights within the party. Otherwise it would be impossible for the primary law to attain its fundamental purpose of securing the expression of the popular will on the composition of the committees and conventions, the nomination of candidates, and the drafting of the platform. This principle is enunciated in the preamble to the Oregon law: "Every poHtical party and every volunteer political organiza- tion has the same right to be protected from the interference of persons who are not identified with it as its known and pubHcly avowed members that the government of the state has to pro- tect itself from the interference of persons who are not known and registered as its electors. It is as great a wrong to the people, as well as to the members of a political party, for any one who is not known to be one of its members to vote or take any part at any election or other proceedings of such political party, as it is State and Local Politics 687 for one who is not a qualified and registered elector to vote at any state election or to take part in the business of the state." This seems axiomatic; but obviously it is difiicult to prescribe the conditions of party allegiance without at once preventing that independence in voting which is the hope of decent politics. If only known party voters are to attend the primaries, what be- comes of the secret ballot at elections — that boon which it took so many years to secure? In the midst of a great diversity of practices in this matter of providing a party allegiance test, four general methods are discernible: ofiicial enrolment in the party by secret or open process; personal declaration at the primary; investment of the right to determine the test in party officials; and the heroic device of abandoning the test altogether by the estabhshment of secret primaries. ^ I. The first of these methods has been adopted in New York, In the cities and villages where the personal enrolment law applies, the voter, on registering for the coming election, receives a blank which he must fill out if he intends to participate in the primary elections of any party. He then goes into a booth where he indicates by a mark under the emblem the party with which he intends to affiliate, and at the same time sub- scribes to a declaration running as follows: "I am in general sympathy with the principles of the party which I have desig- nated by my mark hereunder; it is my intention to support generally at the next general election, state or national, the nomi- nees of such party for state and national offices; and I have not enrolled with or participated in any primary election or con- vention of any other party since the first day of last year." The enrolment blanks so filled out are placed in sealed envelopes and deposited in a special box; a week after the regular election the seals are broken and the Usts of each party made up from the declarations. Judicial process may be invoked for the cancella- tion of the names of fraudulent voters and the names of voters who have died or moved out of the district before the ensuing primary. The chief objection to this system is that urged against viva voce voting at elections; namely, that it makes ^ On this problem, see a valuable article by Professor Charles E. Merriam in the Proceedings of the American Political Science Association, 1907, pp. 179 ff. 688 American Government and Politics public the party affiliation of every voter who enrolls, and makes him liable to the pressures incident to such pubHcity. ^ 2. The second test of party allegiance, that is, personal decla- ration at the primary, is one quite generally applied, but it tends to approximate the New York plan owing to the frequent adoption of an official register based on such declarations. According to this scheme, the voter at the primary asks for and receives the ballot of the party in whose nominations he wishes to take part, and, unless challenged, he deposits the ballot in the box of the party he has chosen; if challenged he takes an oath to the effect that he is a member of that party, has supported it generally at the last election, and intends to vote for at least a majority of the candidates at the coming election. 3. The third method — leaving the imposition of the test to the party officials operating under organization rules — is prevalent in the South where, for well-known reasons, the dominant party has desired a generous freedom in this respect. 4. Wisconsin has solved the problem of the allegiance test by a heroic provision: each voter at the primary is given ballots of all the parties; the ballots are officially prepared and all aUke in form and color and are in a single sheet separated by per- forated hnes; on each ballot the names of the several party can- didates are arranged in alphabetical order ^ under the titles of the offices to which they seek the nomination ; the voter separates from the group of ballots the ballot of the party for which he wishes to vote, marks it, folds it, and then deposits it in the regular box. All the other papers he puts in a separate box for the blanks, which are destroyed immediately after the canvass. Thus absolute secrecy is preserved.^ ^ Another disadvantage of the scheme of enrolment and in fact of all tests for party membership is the difficulty it places in the way of separating state and national from local issues. ^ Provision was made in 1909 for " rotating " the names of the candidates so as not to give the names beginning with A, B, C, etc., for example, an advantage over those beginning with S, T, U, etc. ^ The Minnesota primary law of 1899, which was first made applicable to the single city of Minneapolis, also provided for secret ballot, and the first trial resulted in a protest against the secret feature of the statute. A Re- publican candidate for mayor was nominated against the wishes of the organization and the cry immediately followed that "the Democrats did it." When the legislature met again, it reestablished the old requirement of a State and Local Politics 689 III. Having defined the type of organization which shall be deemed a party and laid down the rules determining membership in the party, legislatures are next compelled to provide for safe- guarding the balloting at primaries, and in this connection they have regulated the dates of primaries, polling places, size and shape of ballots, the conduct of the balloting, the count, and the payment of the expenses. The principles now accepted in this field of primary legislation are the oldest and best known, so that they need little more than mention here. There is a uniform tendency to fLx the holding of all primary elections of all parties on the same day and at the same place for all territorial divisions coming under the provisions of the law; but this is not univer- sally adopted; some states, for instance, forbid two parties to hold their caucuses on the same day, leaving the matter otherwise to the determination of the committees, subject to certain Umits as to time. While fixing uniform dates for primaries. New York separates the polhng places of parties by providing that one polHng place shall be furnished in each dis- trict for the party casting the highest number of votes at the last gubernatorial election, and another place for all other parties. There is also a tendency to require an official ballot for all parties; ^ but New York allows any person to provide ballots subject to the regulations of the custodian of primary elections as to size, color, weight, and texture of the paper. It is also a generally accepted principle that the primaries should be conducted by regular officials according to minute provisions as to hours of opening and closing, and counting the ballots; and finally that the expenses should be borne by the same governmental author- ity that bears the regular election expenses. IV. The definition of party, the provision of an allegiance test, and the protection of the ballot at the primary are but the preliminaries to the control of party organization and operations. The dominating element in the state party organization is, of course, the central committee (including the chairman), who have charge of marshalling the party hosts in campaigns and have declaration of allegiance on the part of the party voter and at the same time extended the provisions of the law to other parts of the state. Review of Reviews, Vol. XXIV, pp. 465 ff., October, 1901; A. L. Mearkle, "The Minnesota Election Law," ^ Printed at public expense. 2 Y 690 American Government and Politics 1 more or less to say, according to circumstances, about the con- duct of party members in legislatures and official places. In many states this important body has taken advantage of the rich opportunities offered to build up a centralized machine, and accordingly our legislatures have sought to bring it under control and fix its responsibility somewhere. In determining the com- position and selection of the state committee, the lawmakers have adopted a bcAvildering variety of expedients which do not reveal any positive tendencies beyond a determination to free the party from the dominance of a machine forced upon it by scheming minorities. These devices are illustrated by the types of regulation described below. 1. The New York law, full as it is in many respects, does not enter this sphere of party organization; but leaves each party to follow its own rules in the constitution of its state com- mittee. 2. The Wisconsin law of 1907 provides a rather unique method of choosing the state chairman and committee. It follows the Republican practice in New York of using the con- gressional district as the unit for apportionment, but allows each one at least two members on the state committee. It provides that at twelve o'clock noon on a specified day, the candidates for the various state offices and for senate and as- sembly nominated by each political party at the primary and the senators of such party, whose terms of office extend beyond the first Monday in January of the year next ensuing, shall meet at the state capitol, and after formulating the platform of the party, shall elect by ballot a central committee of at least two members from each congressional district and a chairman of the said com- mittee. 3. The most democratic method of selecting the state com- mittee is provided by the Illinois law which went into effect on July 1, 1908 — later declared unconstitutional.^ The state central committee shall be composed of one member from each congres- sional district in the state chosen for a term of two years by the party voters at a regular primary. "The state central commit- tee" runs the law, that there may be no mistake, "shall be com- posed of members elected from the several congressional dis- tricts of the state as herein provided and of no other person or ^ This portion stands in the reenactment of 1910. State and Local Politics 691 persons whomsoever." Within thirty days after their election the committee must meet and select the state chairman and such other officers as may be deemed necessary to the conduct of party business. 4. In constituting the state committee, Massachusetts has provided a mixture of direct nomination for populous centres and selection by local convention for the other districts. The law of this state requires each party to elect a state committee annually; the rule of apportionment, similar to that of the Demo- cratic party in New York, is that there shall be at least one mem- ber of the committee for each senatorial district; the selection of the members of the state committee is confided to party conven- tions in each senatorial district, except the Suffolk, first Hamp- den, third Middlesex districts, and certain other districts where the direct primary is required.^ 5. The Iowa law of 1907 (section 27) provides that the central committee shall consist of not less than one member for each congressional district and shall be chosen in the state convention of the party regularly organized under the law of the state; but with the internal structure of the committee Iowa does not interfere: "The state central committee elected at said state convention may organize at pleasure for political work as is usual and customary with such committees, and shall continue to act until succeeded by another committee duly selected." Descending from the state party organization to the great basic unit in the state machinery — the county organization ^ — we discover a more uniform tendency on the part of the state legis- atures to regulate even to the most minute particulars. This, of course, is what was to have been expected, for it was formerly believed that, by the establishment of uniformity, regularity, and democratic control in the lower ranges of party opera- tions, the representative and responsible character of the upper ranges would be secured. New York has provided that each Darty shall have a general committee for each county, chosen in cities of the first class by primary elections, and in other cities and villages to which the primary law is applicable by primaries, conventions, or other committees, as the rules of the party may * Massachusetts Laws Relating to Elections, IQ07 (ofl&cial publication), pp. 38, 148, and amendments. ^ Except, of course, in New England. 692 American Government and Politics determine. The members of the committee must be apportioned as among the units of representation as nearly as possible upon a basis of the party vote for governor; the time at which the com- mittee must take office is determined by party rule except that it must not be later than the first day of January succeeding the election; the committee may make the rules of the party subject to the limitations imposed by the law; it must specify the names and addresses of its chairman and secretary within three days after its organization to the custodian of primary records and file with the same official a transcript of the rules and regulations of the party for the county within the same period after their adoption. It is thus evident that the New York law is designed to afford popular election of the controlling county organization and at the same time secure a definite body of rules on details for the guidance of the courts and other authorities, while leaving the party a large autonomy in making them. But, as every one knows, the county committee, in New York county, on account of its unwieldy size as now constituted, is of slight importance, power having passed, or rather continued to exist, in the smaller executive committee. In constituting the county committee, the law of Wisconsin follows a practice quite commonly accepted by party custom; it integrates the official representatives from the lower subdivisions of the county by providing that the county committee shall con- sist (except in certain populous counties) of the several committees from each election precinct in the county. The committee so constituted elects its own officers and provides its own rules. Although the Wisconsin law is scarcely more precise in its requirements than the regulations in New York, it must be remembered that the practice of nominating almost all candidates by direct ballot has stripped the county organization of its most important powers in connection with the assemblage and manipulation of nominating conventions. The Iowa law requires the election of the county committee by ballot, one member being chosen from each election precinct by the voters of the party.* In Kansas, the precinct committeemen, one from each precinct, chosen by the party voters, constitute ex officio the county committee. V. Our state legislatures have not stopped with attempting ^ Primary Election Law, approved April 4, 1907, section 25. State and Local Politics 693 to secure democratic election of the regular party organization. Realizing from experience and common knowledge the extent to which conventions are dominated by party leaders, and candi- dates are nominated at their behest, our lawmakers have devised nomination by a "direct primary" which is really nomination by an election within the party. In this system the state fur- nishes to each party an official ballot. A member of a party who wishes to become a candidate for any office to which the law appHes may have his name placed upon this official ballot of his party by securing a certain number of signatures to a petition. At the primary, therefore, each party member passes under re- view the several aspirants for nomination whose names appear on the ballot, and selects one whom he beHeves to represent best the standards and policy of his party. Such, at least, is the theory of the system. The laws on this subject fall into four general classes: those which provide for (i) nomination of delegates to conventions by ballot at the primary and permissive extension of the principle to certain candidates for office; (2) obligatory nomination of important local officers by ballot and the retention of the con- vention system for state officers; (3) obligatory direct nomina- tion of United States Senators, and all officers, except minor local officers, by secret ballot; and (4) direct primary nomina- tion for all important state and local officers, including United States senators, supplemented by the convention action in case any candidate does not receive the requisite percentage of votes; (5) nomination of local officers by ballot and permissive instruc- tion of candidates for the office of delegate to the state convention. I. A poor example of the first of these — the optional method — is afforded by the New York law. In case the general committee representing a party in any city or village to which the act applies, or in any county wholly within such city, or in any borough of such a city, adopts by a majority vote a rule that the nomination of that party's candidates for specified public offices to be filled wholly from such subdivision shall be made at the primary elections of the party, then while the rule is in force, the nominations for the specified public offices shall be made by the enrolled members of the party at the regular primary elections. The merit claimed for this permissive law is that it places freely within the power of a committee selected by direct party vote 694 American Government and Politics the right to determine whether candidates for certain offices shall be nominated by the popular vote of the party; but against this contention it is urged that the machine once in power cannot be broken by party vote, and the aid of the legislature must there- fore be invoked. The New York law applies only to local offices and is really a dead letter. In a large number of states/ however, where the optional principle is in force, it has been applied to nearly all state and local officers and to the United States Senator. 2. The second type of law — providing direct nominations for local offices — is to be found in Indiana, Massachu- setts, Minnesota, Ohio, and New Jersey. The Minnesota law provides for an election of party nominees to be held in each election district "for the selection of party candi- dates for all elective offices, except offices of towns, villages, and cities of the fourth class, and state offices, and members of school, park, and library boards in cities having less than one hundred thousand inhabitants." Candidates whose nomina- tions are not required to be made by primary election may be nominated by a delegate convention called for that purpose. 3. The third type of primary law ^ — providing for direct nomina- tions for United States Senator and nearly all officers — is exempli- fied in the Wisconsin law of 1907. All candidates for elective offices must be nominated at the primaries with the exceptions provided by the limits on the extension of the act. That is, the act does not apply to special elections to fill vacancies, to the office of state superintendent, to presidential electors, to county and district superintendents of schools, to town, village, and district school officers, nor to judicial officers, excepting pohce justices and justices of the peace in cities of the first, second, and third class.^ It is expressly provided that party candidates 1 The following states have direct nominations under optional laws and party rules: Alabama, Arkansas, Florida, Georgia, Kentucky, Maryland, South Carolina, Virginia, and parts of North Carolina. 2 The following states now have such laws: California, Idaho, Illinois, Iowa, Kansas, Louisiana, Michigan, Mississippi, Missouri, Nebraska, Nevada, New Hampshire, North Dakota, Oklahoma, Oregon, South Dakota, Ten- nessee, Texas, Washington, Wisconsin, Arizona. 3 No primary election shall be held in cities of the fourth class for nomi- nation of municipal officers unless a petition asking for such primary election shall be filed with the signatures of twenty-five per cent of the voters of such city. State and Local Politics 695 for the office of United States Senator shall be nominated in accord- ance with the process devised for the nominations to state offices. 4. Iowa, in the election law of 1907, sought to obviate the defects in ''pluraHty" nominations by a rather cumbersome set of provisions which taken collectively may be said to con- stitute the fourth type of direct nomination law. Section i of this act provides that the candidates of political parties for all offices which under the law are to be filled by the direct vote of the voters of the state at the general election in November (excepting candidates for. the office of judge of the supreme court, district and superior courts, and including candidates for the office of senator in the Congress of the United States and for the office of presidential elector), shall be nominated by primary election. The aspirant of each poHtical party for each office to be filled by the voters of any subdivision of the county, who receives the largest number of votes shall be declared nominated; aspirants for county, state district, and state offices receiving the highest niunber of votes, being not less than thirty-five per cent of the total party vote, shall be declared nominated. In case no aspirant of the party for such an office receives the requisite thirty- five per cent of the votes, proper notice shall issue and nomination shall be by regularly constituted convention. This is an advance on the Wisconsin law in so far as it prevents any one having less than thirty-five per cent of the party. vote from being the candi- date for any office except the minor offices of the county divisions. 5. The fifth type of nominating system is to be found in the Pennsylvania primary law, as amended in May, 1907, which pro- vided that candidates for offices of the commonwealth to be voted for by the electors of the state at large should be nominated by state conventions, and at the same time gave to each candidate for the position of delegate to the convention the right to have printed on his ballot the name of the candidate for public office whom he would support there. A majority of the direct primary laws in the United States provide that the person who receives the highest number of votes shall be declared the party candidate for the office which he seeks — thus making it possible to nominate by minority vote. That this is highly undesirable has long been evident even to the most ardent advocates of direct nomination. "It prevents," urges an able critic, "a. nimiber of candidates representing the majority 696 American Government and Politics sentiment as to party principles from coming into the field as candidates for the nomination for fear the candidate of a minority may be named by receiving a higher vote than any one candidate among the majority candidates. The present primary is, in effect, a convention to which every voter is a delegate and in which the candidate receiving the most votes on the first ballot is the nominee." ^ It affords an opportunity for a man repre- senting a minority and its principles to become the standard- bearer of the whole party, thus violating the first principles of the democratic rule which primary legislation was designed to obtain. Several attempts have been made to remedy this obvious defect. In the South it is a general practice to require an ab- solute majority in primary elections, and in case no candidate receives an absolute majority, a second ballot is taken on the two candidates standing highest on the Hst. To guard against nomi- nation by too small a minority, Iowa, as we have seen, has provided a certain minimum percentage as necessary for nomi- nation, requiring nomination by convention in case no candidate receives the fixed minimum of votes. Another plan, preferential voting, was adopted in Idaho in 1909. "Under this statute an appHcation of the second-choice vote is practically as wide as that of the primary law itself. The elector is to vote for both his first and second choice wjienever there are more than twice as many candidates for nomination as there are positions to be filled, i.e., whenever there are more than two candidates for a singular office or four for two places in a plural ofiice or body. An absolute majority of first-choice votes is required to nominate for any office, even the office of Congressman and United States Senator. If no candidate for a given nomination receives a clear majority of first-choice votes, the second-choice votes of each candidate are to be can- vassed and added to his first-choice votes. Then the candidate having the largest number of both first- and second-choice votes combined secures the nomination." ^ ^ For a criticism of the nomination by plurality vote and an ingenious suggestion for a remedy without readopting the convention system, see an article in the American Political Science Review, Vol. II, pp. 43 ff., by Mr- Charles K. Lush. 2 See the statement in the American Political Science Review for Novem- ber, 1909, by Professor Leon E. Aylsworth. Washington also has preferential voting (Laws of 1907-1909). State and Local Politics ' 697 The advantages claimed for this new system of direct nomi- nations are as follows: — 1. It encourages active political work on the part of the rank and file by making it easier for the ordinary party member to exercise some influence on the choice of committeemen and candidates. 2. It brings out a larger vote to the primaries than was cus- tomary under the system that provided only for the choice of convention delegates at primaries — a sign of greater public interest which it is desirable to cultivate.^ 3. It prevents powerful economic interests, such as railway and other corporations, from contributing heavily to campaign expenses and from controlHng the nominations to public office. 4. It secures democratic control within the party and prevents it from becoming simply an organized self-perpetuating machine. 5. It secures the nomination of better men by making their nomination depend upon the presentation of their claims to the voters, instead of upon secret manipulations. The specific criticisms advanced against direct primaries may best be summed up in the language of a Wisconsin opponent: — ^ 1. The personnel of the office-holding class has not been improved; better, more capable, and cleaner men have not been elected to office; public officers are not more devoted to their dutes; the civil service is not improved by the appointment of a better class of employees. 2. Public morals are not elevated by the change in the method of making nominations. Never before in the history of the state was so much money expended by candidates in campaigns as at present. Never before were there so many open charges of corruption and the unlawful use of money.' 3. It has disorganized parties and built up personal political ma- chines. 4. The members of the state legislature are split up into factions ^ The evidence on this point is overwhelming. 2 Milwaukee Sentinel for November 7, 1909. For this reference I am indebted to Professor R. B. Scott, of the University of Wisconsin. Much of the argument, of course, is mere assertion. 3 Perhaps the most unique way of meeting the charge that the direct nomination system is expensive to candidates is devised in the Oregon law of June I, 1908, which limits the amount to be expended by each candidate, forbids other contributions, and provides a system whereby the state prints and distributes the pictures and programmes of each aspirant for office — at his own expense. 698 American Government and Politics and there is no party responsibility for their acts, which has resulted in an endless amount of useless and some harmful legislation. 5. The primary contests have engendered so much bitterness that each election brings about a new alignment of personal political ma- chines. . . . 7. Poor men and men of moderate means cannot become candi- dates for office under the primary election law when there are con- tests, except on two conditions. They must face ruin or accept money from others to defray their necessary expenses. If they accept finan- cial aid, they assume obUgations no public servant should incur. 8. The electors cannot "vote directly for the men of their choice" at a primary election. They must vote for some man whose name appears on the primary ticket, and that ticket is made up of candidates who have circulated nomination papers or caused nomination papers to be circulated. They may all be office-seekers and objectionable to 90 per cent of the voters, but the voter must submit to make his choice from the self-nominated primary candidates. 9. Never in the history of the state have the enmities engendered by poUtical contests been so bitter as they are to-day. All pretence of the old good-natured rivalry between parties has disappeared from the poUtical arena. Charges of unlawful use of money, of a debauched public service, of actual bribery, of personal dishonesty and poHtical trickery were common during the last session of the legislature. . . . 11. While no attempt has been made to compute the entire cost of the law in operation to the taxpayers of the state, counties, and cities, no one will for a moment dispute the truth of the statement that it has been enormous and that no corresponding benefit has resulted. 12. The law gives a decided advantage to the man in office. In the case of a United States Senator or state officer where the candidate must appeal to the entire electorate, the man who is known to the people as the man in office is, has much advantage over the newcomer. The well advertised candidate, although he is an inferior person, will get the nomination over a less advertised, but better equipped candidate. 13. The placing of names of candidates on primary tickets by peti- tion has developed a new industry in this state during primary cam- paigns — the circulation of petitions for hire. The party clubs of former years have disappeared; in their places has appeared the mercenary who secures names on petitions for a consideration. This is an exchange of patriotism for pelf. 14. The abolition of all conventions, county, district, and state, has deprived the voters of parties of the opportunity to get together, rub . elbows, and become acquainted. In conventions men from different sections of the state met and exchanged views. They explained the merits and abilities of the several candidates for office and they made State and Local Politics 699 "trades" to the advantage of the party ticket in most cases. The conventions were the schools of poUtics to which many young men went for their education and they had an educative value. All "the advantages of this free intercourse, and the exchange of ideas and infor- mation, disappeared with the aboHtion of the convention. 15. The provision for making platforms in conventions made up of candidates for office is a confessed failure. Platforms made in that way do not represent the principles of the party, but are mere "catch vote" affairs. Even the candidates who make them do not respect them, for they go out into the field with platforms of their own, in many cases carefully prepared, printed, and distributed. 16. The law has not dethroned the political boss. If we ever had a real boss in Wisconsin before the primary law we have merely changed bosses. Upon that feMure of the question there is no chance for argu- ment. The law compHcates poHtics and any law that does this widens the opportunity for inanipulation and increases the activity of the boss. In facf, compUcated politics require leadership and poHtical genius. ^___^^'-'' VI. Nominations for those offices to which the direct primary- is not applied are, naturally, left to party conventions, but these are in every case regulated with more or less strictness as to selection of delegates, conduct of meetings, and modes of pro- cedure. Minnesota, for example, allows the nomination by convention of all candidates who are not required to be nominated by direct primaries; and the authorized committees of the parties must give due notice of the primaries to be held for the election of delegates, indicating at the same time the officers to be nomi- nated by the conventions so called. In general, the primaries held for the purpose of choosing delegates must be conducted as other primaries, at a regular polling place, which must be kept open a stipulated time. When the delegates chosen at the primaries are to form a convention for the election of delegates to a state con- vention or that of a district larger than a county, the party conventions of the several counties must be held the same day. The provisions of the jS'ew York law are very full on the elec- tion and conduct of local conventions. The term, convention is applied to any assemblage of delegates of a party in and for any political subdivision ^ of the state, duly convened for the ^ Apparently this excludes state conventions from the operation of the law, although section 50 of the older election law defines a convention in such a way as to include state conventions. 700 American Government and Politics purpose of nominating "candidates for public office, electing delegates to other conventions, electing members of political committees, or transacting any other business relating to the affairs of a party. Delegates to conventions, except those made up of delegates who by party rules are chosen at other conven- tions, are to be chosen at primaries. Due provision is made for the delivery of certificates of election to delegates chosen at primaries; the apportionment of delegates on a basis of party vote is made obUgatory; the room in which the convention is to meet must have ample seating capacity; every convention must be called to order by the chairman of the committee with whom the call originates; the general features of the convention's procedure are determined; and provisions are made for deciding contests over seats. All rights secured to electors, boards, com- mittees, and officials under the act with regard to conventions (among other things) are to be upheld by the courts, and in re- viewing any action or neglect relating to conventions, the court is to consider, but is not controlled by, party rules, and shall make such decision or order as justice may require under the facts and circumstances of the case. Service of process on the chairman or secretary of the convention is sufficient. VII. In connection with the nomination of candidates, espe- cially for state offices, it is a custom of political parties to formu- late their principles into a platform. In those states which have not attempted to interfere with the higher ranges of political organization and operation, the futiction of defining party doctrine is left to the state convention where it originally be- longed, in form, if not in fact. The states, however, which have provided for direct nomination of state officers, have also been compelled to consider the question of drafting the party platform. Wisconsin has left this matter to the meeting of the candidates and certain members of the party in official positions at which the state chairman and committee are elected.^ Kansas con- stitutes by law an organization known as the party council, com- posed of "the candidates for the various state offices, for United States Senator, for members of the national house of repre- sentatives, for the state senate, for the state house of representa- tives, nominated by each poHtical party at each primary, the national committeeman, the United States Senators and state ^ See above, p. 690. State and Local Politics 701 senators of such political party whose term of office extends be- yond January of the year next ensuing, and the chairmen of the county committees of the several counties of the state," and this general assemblage of chosen party representatives is charged with the task of drafting the state platform. VIII. The extensive use of money in elections by candidates and committees, and the notorious instances of large and significant contributions by corporations and private persons, led to a wide- spread beUef that party machinery was merely an adjunct of special interests, while the victor at the polls, to reverse the ancient dictum, belonged to the spoils. It availed nothing, it was argued, to secure to the rank and file legal rights in the selection of delegates and candidates if the militant section of the party continued under the dominance of corporations; and thus the control of money in elections has become the latest phase in the development of the legislative regulation of political parties. Four distinct types of provisions have been devised to secure this control: (a) regulation of expenditures of candi- dates; (b) definition and limitation of the financial powers of committees; (c) restriction or prohibition of contributions by corporations; (d) definition of the objects for which money may be spent. The tendencies in legislative control of financial opera- tions of parties are clearly revealed in the statutes of New York, which, for the sake of brevity, will alone be considered here.^ 1. Restrictions on candidates. The law of New York limits to a definite sum the amount which each candidate for an elective office may spend and compels him to file within twenty days after the election a sworn statement giving in detail all his receipts and expenditures. Failure or refusal to comply is treated as a misdemeanor and also punishable by the forfeiture of office. 2. Control of political committees. The law defines a political committee as every committee or combination of three or more persons cooperating to aid or promote the success or defeat of a poHtical party or principle or of any proposition submitted to vote ^ In the development of this type of legislative control New York led the way in 1890 by the enactment of an ineffectual law requiring candidates to report expenditures but leaving committees free. Between 1890 and 1905 no less than fifteen states adopted restrictive measures, usually denominated "Corrupt Practices Acts," and step by step the grand outlines and minor details of a complete scheme of supervision were placed on the statute books. See Senate Document, No. 86, 59th Congress, ist Sess., pp. 5-10. JP^ American Government and Politics at a public election or to aid or take part in the election or defeat of a candidate for publit office. Every such committee must have a treasurer and require him to keep detailed accounts of all money or its equivalent received or promised, and of all expenditures, disbursements, and promises to pay made by the committee. All payments in excess of $5 must be receipted by vouchers showing the amount and object of the expenditure. Within twenty days after the election a statement must be filed, setting forth all the receipts, expenditures, disbursements, and liabilities of the committee, and of every officer, member, or other person acting in its behalf. In each case the statement must include the amount received, the name of the person or committee from whom it was received, the date of its receipt, the amount of every expenditure exceeding $5, the name of the person or committee to whom it was made, and the date. Except in cases where the expenditure is to another committee, the purpose of the dis- bursement must be clearly stated. 3. Prohibition of corporation contributions. The law regu- lating corporation contributions, as amended in 1906 (chap. 239) provides that no corporation or joint stock association doing business in the state (except political associations) shall directly or indirectly pay, offer, or use, consent or agree to pay or use any money or property for or in aid of any poHtical party, committee, or organization maintained for poUtical purposes. Aid to can- didates for nomination or for office is Ukewise forbidden as well as all contributions for any political purpose whatever. Violation of the statute by any officer, director, stockholder, attorney, or agent is a misdemeanor punishable by imprisonment for one year and a fine of not more than $1000. No person is excused from testifying or producing evidence on the ground of incrimination, but immunity is assured in such cases. ^ 4. Definition of the objects of campaign expenditures. The culmination of this system of control is to be found in the rather precise definition of the objects for which money may be used in connection with elections. The New York statute of 1906 (chap. 503, sect, i) includes the following hst: rent of halls and expenses connected with pubHc meetings, preparation and pubHcation of various "literary material," compensation for agents to prepare ^ See also the federal law, approved January 26, 1907, forbidding cor- porations to make contributions in connection with federal elections. State and Local Politics 703 and supervise articles and advertisements for the press, payment of newspapers for* publishing materials, rent of offices and club rooms, compensation of clerks, agents, and attorneys managing the "reasonable business of elections," preparation of lists of voters, personal expenses of candidates, travelHng expenses, com- pensation of workers at the polls, and the hire of carriages. In- deed, this act goes into such detail that it appears to the laymen in pohtics as an insurmountable barrier to illegal election expendi- tures; but probably to the eye of an experienced election worker there are plenty of loopholes. The most unique experiment for controlling party funds was devised by the legislature of Colorado in 1909 by the passage of an act declaring that "the expenses of conducting campaigns to elect state, district, and county officers at general elections shall be paid only by the state and by the candidates." It is made a felony for any other person or any corporation to contribute to any party committee or any candidate for these offices and also it is a felony for any candidate or committee to accept such a contribution. The amount of money which the candidates may themselves personally contribute and expend is regulated by the salaries or fees of the offices for which they are respectively can- didates. In addition, the state contributes to each poHtical party twenty-five cents for every vote cast by that party for governor at the last preceding election. The amount is paid over to the state chairman of each party who is made responsible under bond for the proper distribution of this money among the county chairmen in accordance with the strength of the local vote, and also for the proper expenditure of the funds so contributed by the state.^ N on-Partisan Politics While strongly emphasizing the place of party government in American pohtics the influence of non-partisan organizations should by no means be lost sight of. The non-partisan or inde- pendent vote is often the really decisive element, particularly in those cases in which the two ^ great parties are more or less evenly divided; and there is no doubt that there is an ever- increasing proportion of the voters who are independent of party ^ Digest by Professor Leon E. Aylsworth in the American Political Science Review, August, 1909, p. 382. 704 American Government and Politics 3 organization. In many a national election an appeal has made to the non-partisan voter. The first Republican platform of 1856 invited the affiHation and cooperation of the men of all politics, and the platform of i860, after enunciating the prin- ciples of the party, appealed for "the cooperation of all citizens, however differing on other questions, who substantially agree with us in their affirmance and support." The Democrats in 1876 appealed to their "fellow-citizens of every former political c6n- nection"; and from that day to this the independent element of the nation has not been overlooked in national campaigns. However, it is in local, and especially municipal, poHtics that the non-partisan or independent element is strongest. In every great city there is a non-partisan citizens' organization of one form or another. In 1896, the Municipal Voters' League of Chi- cago was founded to fight corruption in the government of that city. The League is composed of voters scattered throughout the city who express their approval of its purpose and methods by signing cards. The purpose of the League is not the estab- lishment of a new party but the concentration of public opinion and pubUc scrutiny upon the candidates nominated by the other parties. It is, in a word, a pubhcity committee: prior to each city election it maintains headquarters into which pour suggestions for nominations and criticisms of city officials; as soon as candi- dates are announced or nominated it sends letters of inquiry to them in order to ascertain what stand they intend to take if elected; a-nd through the campaign it endeavors to secure the widest pub- hcity with regard to the character and pohcies of the various candidates. It has undoubtedly wielded some influence for good in the city, and party managers in selecting candidates in many wards in the city can no longer ignore its recommendations. The non-partisan organization of New York is the Citizens* Union, a group of persons united without regard to party for the purpose of securing the honest and efiicient government of the city of New York by the nomination and election of candidates or by indorsing the nominations of regular parties whose char- acter and poUcy the Union can approve. The Citizens' Union, however, differs from the Municipal Voters' League in being a sort of political party with officers, committees, and conventions modeled somewhat on the plan of the older parties. By uniting with the RepubUcan party, which is in a minority in New York State and Local Politics 705 City, it was able in 1901 to contribute powerfully to the election of Mr. Seth Low as mayor; but it was unsuccessful in the next mayoralty contest, and since that time has confined its work largely to poKtical education and the indorsement or nomination of candidates for minor offices. Cambridge, Massachusetts, formerly had an organization known as the Library Hall Association. It stood for the principle of non-partisanship in municipal politics but was not a poUtical organization itself — that is, it did not attempt to create poUtical machinery like that estabhshed by the Citizens' Union. At first the representatives of the association attended the sessions of the city council and a record of all the members of the Council was published in the local newspapers and in pamphlet form. The failure of the voters to take an interest in this work of publi- cation led the association to abandon ^ it and adopt the plan of holding meetings immediately before the city elections for the purpose of scrutinizing the candidates nominated by the various parties and groups. At this meeting the names of all the candi- dates were discussed and the association decided upon the men it would support. In some instances, however, it made nominations of its own. The association thus prepared a slate of its own and waged a campaign in its support.^ This association, however, finally w^ent to pieces; and its place has been taken by a "Non-partisan Municipal Party" which is for all practical purposes an organized party, but it is opposed to bringing national issues into city politics. 1 See article in Municipal Affairs, Vol. IV, p. 363, June, 1900. 2Z CHAPTER XXXI TAXATION AND FINANCE The raising and appropriation of revenues is always one of the leading subjects of controversy in state constitutional conven- tions. This function of government has been a source of log- rolling and jobbery of every kind, great and small; and the ten- dency, everywhere manifest, to misappropriate funds and to rush headlong into debt has forced the adoption of many constitu- tional provisions in behalf of the taxpayer. No safeguard seems to be too minute to be unworthy of a constitutional sanction: the legislature of Alabama must even buy its fuel according to the rules laid down in the fundamental law of the commonwealth. The early state constitutions gave the legislatures a free hand, but the reckless abandon with which money was raised and spent soon gave the taxpayers pause, and they began to devise plans ^ for stopping one form of malversion after another, only to find the legislature ingenious enough to discover new loopholes. Be- fore taking up the actual methods for raising and disbursing state revenues, it will be necessary, therefore, to consider the general character of the limitations under which the state legislature must work. Constitutional Limitations The ancient rule that money bills must originate in the lower house — once so prominent in Anglo-Saxon polity — is now laid down in less than one-half of our state constitutions. A number of them, in fact, specifically state that any bill may originate in either house: "Any bill may originate in either house of the legis- lature and all bills passed by one house may be amended by the other," runs the New York constitution; but as a general prac- tice the senate concedes to the lower house the right of initiating measures for raising revenues and often general appropriation bills as well.^ It can hardly be said, however, with due respect ^ Agger, The Budget in the American Commonwealth (Columbia University Studies), p. 22. 706 Taxation and Finance 707 for this ancient and honorable doctrine on money bills, that it constitutes any safeguard against careless and corrupt finance in legislatures; and it must be admitted also that it has slowly been declining in pubHc esteem. Perhaps the most important safeguard against reckless finance is the precise Hmitation on indebtedness imposed quite generally by the recent constitutions. New York, for example, fixes the debt hmit at $1,000,000; and, except for certain urgent reasons — to suppress insurrection and wage war — the legislature can create an additional debt only for a specified purpose, which must be submitted to a popular vote and receive a major- ity of all the votes cast for and against it.^ Ohio goes further: after estabhshing the debt Hmit at $750,000 the constitution provides that no other debt whatsoever may be created by or on behalf of the state, except debts to repel invasion, suppress in- surrection, defend the state in war, or to redeem the present out- standing indebtedness. Coupled with this definite Hmitation, there is usually a clause requiring the legislature, on creating a new debt, to make provision for meeting it when it falls due. The various devices for restricting the debt-contracting powers of state legislatures have had a decided effect in reducing and controlUng expenditures. The total outstanding debt of all the commonwealths in 1870 was $325,866,898; in 1890, $223,107,883; and in 1902 the total debt of the states and territories was only $234,908,873. Massachusetts now comes first with a debt of $78,097,595; New York second with $41,230,660; and Virginia third with $24,986,959. A few of the states, lUinois, Iowa, Michigan, Nebraska, Oregon, and South Dakota, were reported in 1908-1909 as having no indebtedness at all. It certainly may be said that the finances of the American commonwealths are on a sound basis so far as indebtedness is concerned. In a majority of states some provision is made for uniformity in taxation.^ This varies from state to state. In Pennsylvania all taxes must be uniform upon the sarrte class of subjects within the territorial limits of the authority laying the tax. Ohio ad- heres to a still older principle: "Laws shall be passed taxing ^ See Readings, p. 461. 2 It is the common practice for the state to exempt from tax the buildings and certain other property of religious, educational, and charitable insti- tutions. 7o8 American Government and Politics by a uniform rule all moneys, credits, investments in bonds, stocks, joint stock companies, or otherwise; and also all real and personal property according to its true value in money," — ex- cept certain public bonds, the property of some institutions, and personal property of any individual to an amount not exceeding $200. In West Virginia, taxation must be equal and uniform throughout the state, and all property, both real and personal, must be taxed in proportion to its value; and no species of prop- erty from which a tax may be collected can be taxed higher than any other species of property of equal value. To secure regularity and pubhcity in legislative appropriations, it is now quite common to embody in the constitution any or all of the following principles.^ Money shall be paid out of the treasury only in pursuance of an appropriation by law; every law imposing a tax must specify the object to which the income is to be devoted; the yeas and nays must be taken on the final passage of a money bill and recorded; the credit of the state may not be given or loaned to any private person or association; the gov- ernor may veto single items in the appropriation bill;^ the general appropriation bill may embrace nothing but appropriations for the ordinary expenses of the state executive, legislative, and judi- cial departments and for some other specific purposes; no appro- priation shall be made for a longer term than two years; and no revenue bill may be passed during the last five days of the session. Legislative Methods Finances are handled in our state legislatures in much the same way as they are in Congress, and with similar results with regard to confusion and absence of responsibility. There is usually in each house a committee on ways and means and an- other dealing with appropriations. In about half the states it is the custom to raise revenues under a general law which stands in force from year to year. In these states the appropriations of the legislative sessions are totalled and a rate fixed on the evaluated property that will cover the expenditures. Such ^ See Readings, p. 459. 2 This power is possessed by more than one-half of the governors and used quite freely, much to the distress of the politicians, but an executive veto of an appropriation is rarely overruled. Agger, op. cit., p. 96; Reading, P-447- I Taxation and Finance 709 a practice works best, of course, when the general property tax is in use. In the other states, at least some portion of the revenue system is reenacted at each session of the legislature, while the remainder is derived under general and continuing laws. For example. New York has indicated by law certain sources of reve- nue for state purposes, such as stock transfer, inheritance, fran- chise, and corporation taxes, and these taxes are collected from year to year without reenactment unless, of course, the legislature sees fit to modify any of the provisions. As in Congress, so in the state legislature there is no finance minister responsible for the entire budget, and consequently there is the same lack of coordination between income and outgo. In many states where the revenue is derived from a levy on genera] property, the value of which has been fairly well estab- Ushed by assessment, it is comparatively easy to provide for the revenue after all of the appropriations have been totalled at the close of the session, but this affords no way of checking up ex- penditures against income while the legislature is making ap- propriations. Indeed, it is not possible to know the total amount appropriated until some time after the adjournment of the legis- lature — until the governor has exercised his right of vetoing items. In the absence of a finance minister in the legislature there is a large variety of methods adopted attacking the problem of appropriations. The official report of the state auditor, treasurer, or finance officer — showing the receipts and expendi- tures for the preceding year, the balance in the treasury, and the amounts required by the various departments — gives the legislature some clew to the situation, but in practice it affords only a starting-point, so that the legislature is soon far adrift. Alabama has attempted to give a little more coordination in the finances by providing that: ''The governor, auditor, and attorney- general shall, before each regular session of the legislature, prepare a general revenue bill, to be submitted to the legislature for its information, and the secretary of state shall have printed for the use of the legislature a sufficient number of copies of the bill so prepared, which the governor shall transmit to the house of representatives as soon as organized, to be used or dealt with as that house may elect. The senate may propose amendments to revenue bills." 7 10 American Government and Politics In the matter of appropriations/ our state methods are in worse confusion, if possible, than the national methods. The appropriations — for purposes of simpKfication — may be divided into three groups: (i) permanent appropriations, such as are made to some pubHc institutions or commissions, and do not require reenactment from year to year; (2) general appropria- tions for legislative, executive, and judicial expenses and for some specified purposes such as the payment of interest on public debt; and (3) miscellaneous appropriations for special objects provided by separate statutes. The first of these — the permanent appropriations — make httle trouble, because they are fairly definite in character. There, however, is a constant heavy pressure to increase the amount. The general appropriation bill is now less trouble than it used to be, for it is, as a general rule, Hmited by the constitution to certain specific purposes, as indicated above; and in many states the vicious practice of attaching to appropriation measures, laws relating to extraneous matters, for the purpose of forcing them through the legislature, is forbidden. The general appropriation bill is usually prepared by the committee on appropriations in the lower house, but it is almost always hammered sadly out of shape in the house and the senate. The miscellaneous appropriations afford splendid opportunities for log-rolling and extravagance, and they seldom receive any- thing Hke adequate scrutiny. Furthermore, measure after measure relating to some pubHc purpose or branch of the ad- ministration is passed with little or no debate on the cost in- volved in the execution of the law. These measures are intro- duced in large numbers by private members of the legislature, and there is generally no person or committee charged with the duty of inquiring into the expense which such laws carry with them. For example, an important change is made in the ballot, involving a large printing and administrative charge; the dis- cussion centres on the political aspect of the question; and perhaps a majority of those who vote for the measure are wholly unaware of the addition made to the expenses of the state. Such a measure, of course, is not an appropriation bill in a strict sense, but its effect is to increase the charges which the legislature and local authorities must meet. ^ For the objects for which appropriations are made, see below, p. 719. Taxation and Finance 711 Economy and responsibility in finance would require every measure carrying any kind of a charge on the funds of the state to be carefully scrutinized by a committee of the ablest men in each house; and, in addition, a detailed report of all carried and proposed pubUc charges should be laid before the legislature at a reasonable time before adjournment. The introduction of no bill involving expenditures should be permitted within a certain period preceding adjournment, and thus the jobbery customary amid the rush and the confusion of the closing hours of the session could be avoided. In connection with the problem of devising intelligent and economical appropriation measures. Governor Hughes, in his message of January, 1910, made important recommendations with regard to securing estimates and coordinating expenditures. In the first place, he recommended that departments, com- missions, persons, and associations desiring appropriations for particular purposes should be required by law to file with the state comptroller their statements in detail, with reasons for their several demands. The comptroller should then be required to tabulate these requests for money from the state treasury, and have them all ready for the legislature at the opening of the session. " This," says Mr. Hughes, " will insure desirable pubUcity with respect to the demands upon the state, will greatly facilitate the legislative committees in dealing with questions of appro- priations, a work which constantly grows more laborious, and will tend to expedite the business of the session. It will also prepare the way for such further methods of examination, com- parison, and criticism as experience may show to be advisable." In the second place, Mr. Hughes made the following recom- mendations with regard to systematic appropriations: — In connection with outlays for public buildings, and for improve- ments and extension of institutional work, including education and charities, it seems to me that the effort should be made to provide a ten- tative programme for a series of years which, while of course not bind- ing upon succeeding legislatures, would have an important influence in shaping appropriations in accordance with a comprehensive plan, and avoid, so far as possible, ill-timed or indiscreet allowances. The various demands could be classified so as to define (i) those relating to enterprises which are in progress or to which the state is already committed; (2) the further outlays that may be required to bring 712 American Government and Politics existing institutions as units of state work to the highest available degree of efficiency, and such additional faciUties as may be needed in connection with the expected increase in population; (3) such new institutions or lines of state activity as present judgment would ap- prove in case there were means sufficient for their estabHshment. The amount necessarily required each year for the purposes of the first two classes, and the order of requirement and the surplus of ex- pected income available for the third class, should be ascertained. The necessary amounts should be so distributed that no more than that reasonably required by the proper progress of the work should be charged against the income of any one year. In this way a con- spectus may be provided, say for a period of five years, showing the imperative demands upon the treasury of the state and the outlays deemed advisable. Those urging the state to undertake new enter- prises would thvis see the relative importance of the various requests, and there would be less risk of improvident or inopportune outlays. I beUeve that special appropriations for roads, river improvements, and other purposes for the benefit of particular locahties should be avoided so far as possible. All improvements of highways should be under the supervision of the Highways Commission, and any amend- ment of the law needed to give the Commission full jurisdiction should be supplied. Similarly, the law relating to river improvement should be amended, if necessary, so as to remove any question as to the power of the Water Supply Commission to provide for such improvement of waterways (outside of the canal system) and for such supply of ditches, dikes, and the hke, as may be necessary, after due ascertainment by the Commission of the extent to which the expense should be borne by the locahties benefited and the part, if any, to be charged upon the state. The practice of providing for such improvements by special acts, or by items in appropriation bills which place the entire cost upon the state without regard to the benefit derived by the cities, towns, and counties concerned, is unjustifiable, and should yield to a general method which will permit these matters to be dealt with in justice to all interests. Another source of weakness in our state finances is the absence of effective supervision over the spending authorities by the legislature. Appropriations for departments and public insti- tutions are made, in large part, on the basis of representations from the officers in charge, and they are quite properly detailed in many instances. Nevertheless, it is impossible for so large a body as the legislature, or even its overworked finance com- mittees, to trace to the very ends the many-branched stream that Taxation and Finance T^Z flows from the public treasury. There is, accordingly, no such intimate touch between the spending authorities and the legis- lature as exists in England. An attempt has been made, in Virginia, to remedy this obvious defect, for the constitution of 1902 provides that the general assembly shall at each regular session appoint a standing auditing committee consisting of two senators and three members of the lower house, charged with the duty of examining annually, or of tener, the books and accounts of the first auditor, the treasurer, the secretary, and other ofl&cers at the capitol, and reporting the results of the investigation to the governor, to be laid before the legislature. The report is also pubHshed in two newspapers of general circulation. This committee may sit during the recess of the general assembly and, besides being furnished expert service, its members are paid for their labors. Other attempts to secure correct and efficient disbursement of public funds take the form of centralization and systematic zation in commonwealth and local accounting.^ For example, in 1909, the Indiana legislature passed an important statute providing for a uniform system of public accounting and for the supervision of all accounts — central and local — by a state examiner appointed by the governor and removed by him at will. The law requires the establishment of a state-wide system of uniform accounts "for every public office and every public account of the same class, of the state, counties, townships, cities, towns, and school corporations and all state institutions. The accounts of every office must show in detail the receipt and expenditure of pubhc fimds and the receipt, use, and disposition of pubhc property. Separate accounts of every appropriation or fund of the municipahty or institution showing date and manner of payment and the name, address, and vocation of the parties to whom any moneys are paid, and the authority au- thorizing such payment are required to be kept and verified. Separate accounts for each department, undertaking, and in- stitution, and for every pubUc service industry owned by the municipahty, and detailed reports of such public service industry showing the actual condition and cost of service are required." ^ ^ For the recent Ohio law, see Readings, p. 565. ^ For a complete statement, see the survey by Mr. J. A. Lapp in the Political Science Review for May, 1909, p. 206. 714 American Government and Politics Sources of Revenues The state usually derives its revenues from four main sources: (i) public property, such as lands and canals; (2) fees charged for licenses, franchises, charters of incorporation, etc.; (3) fines and penalties imposed for violation of the criminal laws; and (4) taxation.^ I. For almost a century the chief source of state revenue was the tax imposed at a certain rate upon all property, real and personal, evaluated by local assessors. This state tax, con- sisting of a certain number of cents on each dollar of valuation, was added to the local rate, collected by the local authorities, and forwarded to the state treasury. Although several states have abandoned in part, or altogether, this general property tax, it still constitutes the main reliance of a majority of the commonwealths, more than eighty-two per cent of the state and local taxes in 1902 being drawn from this source. The method of laying and collecting the general property tax is practically the same throughout the United States. The property is valued by a local assessor of the town, township, or county, as the case may be. The assessor is furnished with printed blanks containing long lists of every conceivable kind of property — houses, lands, notes, stocks, bonds, pianos, watches, live stock, etc.; and he secures, usually by personal visits, the total value of each class of property possessed by every resident in his area. From these Usts the total value of the general property in the township or county is obtained, and the amount due the state is readily discovered by applying the rate imposed by the legislature. If the township is the unit of the assessment, there is generally a county board charged with the duty of equalizing the values of property in the different units. When it was found that the county authorities habitually undervalued property in order to reduce the burden imposed by the state, the legis- latures resorted to the expedient of creating central boards of equalization to impose uniform values for the same classes of property throughout the state, thus connecting the work of the assessors and making each county pay its proper quota into the treasury of the commonwealth. * Agger, op. cit., p. 123. 1 Taxation and Finance 7^5 As the country passed from an agricultural into a commercial and manufacturing stage, there arose serious difficulties in con- nection with this general property tax.^ When property con- sisted of tangible things, lands, houses, live stock, etc., or mortgages on real property recorded at the county seat, it was easy for the assessor to secure a fairly complete and accurate Ust of the prop- erty of each resident within his district. However, when joint stock concerns and corporations came into existence, and persons could invest their wealth in the bonds or stocks of some cor- poration organized in a distant state, or even in a foreign country, and could lock their papers in a strong box, the assessors could no longer keep track of the property within their local units. There were many other reasons, too, why the states were forced to cast about for some other sources of revenue, but they cannot be discussed here.^ The result has been a revolution in the tax system of many states, New York having gone so far as to aban- don altogether the general property tax for state purposes in favor of inheritance, corporation, excise, and other special taxes. 2. The inheritance tax,^ though long employed in Europe, has found favor in America only within recent years — practically since 1890, but it has now been adopted in some form by more than three-fourths of the states, and its principles are everywhere receiving extended development. The rates are being raised; the progressive rule increasing the rate with the amount of the inheritance is more frequently appHed; the exemptions allowed to direct heirs are being lowered; and there is a tendency to apply it equally to real and personal property.'' In 1907, the highest rate collected was fifteen per cent imposed on collateral heirs in CaHfornia, Idaho, and North CaroHna; the highest amount ex- empted for direct heirs was $20,000 in lUinois and West Virginia; and the highest amount exempted for collateral heirs was $10,000 in Connecticut, Minnesota, and Utah.^ In New York, property of less than $10,000 passing to a father, 1 See Readings, p. 597. 2 See Readings, pp. 592 ff., for extracts from state tax reports on this whole subject. ^ See Readings, p. 603. * S. Huebner, The Inheritance Tax in the American Commonwealths. Quarterly Journal of Economics, Vol. XVIII, 1904, p. 529. ^ Inheritance Tax Laws (Govt. Printing Office, 1907), p. 47. 7i6 American Government and Politics mother, husband, wife, child, brother, sister, wife or widow of a son, or the husband of a daughter, or an adopted child, is entirely exempt; and property of more than $10,000, passing to such heirs, is taxed at the rate of one per cent, while a general rate of five per cent is imposed on other inheritances over $500. The amount derived by New York from this source, in 1909, was about $6,960,000 out of a total revenue of about $30,000,000 in round numbers. Wisconsin, California, Idaho, and Massachusetts have pro- gressive taxes — that is, increasing in rate as the inheritance increases — on both direct and collateral heirs. The income from this tax is not very considerable when compared with the entire amount raised by our commonwealths, but it will no doubt be materially increased in time. 3. The income tax has been employed at different times in no less than sixteen states, and is now used in Massachusetts, Vir- ginia, North Carolina, South Carolina, Tennessee, and Okla- homa. However, it has not proved a popular tax, nor an effective source of revenue, on account of the evasions. An attempt is being made in Oklahoma to overcome this difficulty of adminis- tration by requiring all persons to certify under oaths the excess of their incomes over $3 500 — the limit of exemption; by author- izing the assessor to send to the state auditor the names of per- sons who, he believes, have not correctly certified their incomes; and by empowering the auditor to resort to drastic measures for the purpose of ascertaining the truth in the matter. 4, A most fruitful and popular source of revenue is the tax on corporations now quite generally imposed. This branch of state finance, however, presents so many puzzling problems that it can be considered here only briefly. The taxation of manufacturing corporations doing business at a particular point within the state is comparatively simple: the property of the corporation may be estimated and included in the general mass of property within the state, and perhaps a special tax varying with the capitalization may be imposed for incorporation. However, railway, tele- graph, express, street car, and other corporations of a quasi- pubHc character, operating under special franchises or privileges, often monopolistic in character, are in an entirely different class. In taxing them, the legislature is constantly harassed by per- plexing problems. A part of the total value of the property of any Taxation and Finance 717 one of these corporations is in tangible form in the state, a part in the privilege which it enjoys, and a part, perhaps, is due to operations carried on in other states or in foreign countries. Take, for example, an express company doing business in Ohio: its tangible wealth — horses, wagons, offices, etc. — is relatively slight, but the value of the privilege of doing business is enormous, because it carries goods to and from all points of the Union and the civilized world. In fixing the total value of the business of such corporations within any state, the public authorities are compelled to rely largely on statements made by corporation ofiicials, which are not always entirely satisfactory sources of information; and in laying such taxes, states must also be careful not to come into conflict with the interstate commerce clause of the federal Constitution.^ To meet these perplexing problems a variety of expedients has been devised. Some states tax all corporations on the actual value of their capital stock; others tax quasi-public corporations according to their gross receipts or their earnings. In New York, for example, every stock corporation on its formation under any law of the state must pay to the state treasurer a tax of one- twentieth of one per centum upon the amount of capital stock which it is authorized to have, and a like sum for any subsequent increase in the ampunt of stock. In addition, every corporation, joint stock company, and association must pay to the state treasurer an annual tax upon its capital stock, the value of which is based upon its earning power and* taxed pro rata. Some con- cerns, such as saving banks, are exempt from this tax; but others, notably transportation and transmission companies, must pay an additional franchise tax. 5. All of the states which permit the sale of intoxicating Hquors derive a revenue, state or local, or both, from the business. In New York, this tax on the liquor traffic amounts in some years to more than a fourth of the entire revenue of the commonwealth, but one-half of the amount collected by the state central govern- ment is returned to the communities from which it is derived. 6. A large proportion of the states, especially in the South, employ business and professional taxes for state or local purposes, or both. In some of these commonwealths only a few special trades, professions, and occupations are taxed. " At present nearly ^ See Readings, p. 348 71 8 American Government and Politics all of the commonwealths levy license taxes on dealers in liquor; peddlers, travelUng vendors, and various kinds of amusements, primarily for the purpose of regulation or suppression. . . . These taxes are more or less systematically employed for state purposes in Pennsylvania, in Delaware, and in all of the southern states, save South CaroUna, Missouri, Arkansas, and Texas, and also in New Mexico, Idaho, and Montana. In practically all of these states and in several others similar taxes are employed — and frequently much more extensively — for municipal purposes. Wilmington, North CaroHna, for example, some years ago levied license taxes upon 124 classes of business. The license tax ordi- nance now in effect in Atlanta contains 466 items, thus permitting few persons other than manual laborers to follow their callings imtaxed." ^ A fine illustration of the revenue system of a state which has advanced far along the way of separating state and local taxes and imposing special taxes is afforded by this statement of the income of the central government of New York: 1908 1909 Special tax for judges, stenog- raphers, etc $368,098 31 $330,436 87 Tax on corporations 8,937,635 24 8,671,920 20 Tax on organization of corpora- tions 207,535 49 343,938 99 Tax on transfers of decedents' estates [inheritance] . . •. . 6,605,891 46 6,962,615 23 Tax on transfers of stock . . . 3,907,373 38 5,355,546 16 Tax on trafficking in liquors . . 9,359,318 63 5,140,524 21 Tax on mortgages 1,666,527 51 1,844,821 45 Tax on racing associations . . . 247,443 31 65,166 74 Tax on land of non-resident owners 17,229 58 24,018 12 $31,317,052 91 $28,738,987 97 2 The disbursements of state governments are generally dis- tributed with more or less variation among the following objects: (i) maintenance of the government in its executive, legisla- tive, and judicial branches; (2) the state militia; (3) health and ^H. A. Millis, "Business and Professional Taxes, as Sources of Local Revenue," First National Conference on State and Local Taxation, 1908, pp. 442-451. 2 Miscellaneous receipts of $2,419,007.93 not included. m Taxation and Finance 719 sanitation; (4) highways; (5) insane asylums; (6) charities; (7) penal institutions; (8) education; (9) interest on public state debt. The following disbursements for the state of New York for the fiscal year ending September 30, 1907, will serve for the purpose of illustration: State departments, commissions, etc $2,913,344 61 Charitable institutions 2,495,042 66 Hospitals for insane 5,951,294 30 Educational purposes 6,484,825 :^^ Canals, for all purposes, including $5,369,384.45 paid from Canal debt sinking fund 8,760,034 06 Legislature 784,931 39 Legislative printing, including advertising . . . 396,534 30 Judiciary 1,240,799 54 National Guard, including arsenals and armories . 1,033,238 97 State prisons, asylums for insane criminals, and penitentiaries 980,660 50 Public buildings 405,876 04 Maintenance and repairs of county highways . . 292,972 16 Repairs of highways, money system 727,855 93 Construction of highways, Highway Improvement Fund 1,701,716 15 Principal and interest temporary certificates for highway improvement 557*423 34 Rivers, roads, bridges, etc. 31,567 24 Non-resident taxes, including redemption and erro- neous payments 110,539 56 Adirondack Park and Catskill Preserve purchase of land 339,117 58 Principal and interest Adirondack Park bonds . . 210,500 00 Refunds, Excise Department 411,705 66 Jamestown Ter-Centennial Commission .... 65,000 00 Hudson-Fulton Celebration 7, 500 00 State Educational Building 462,027 07 G. A. R. Encampment 3S,ooo 00 Purchase of Watkins Glen 46,512 50 Purchase of Mansion of Sir William Johnson . . 25,000 00 Claims for Park Avenue damages 63,039 66 ReUef of People of the State of CaUfornia . . . 50,000 00 Palisades Commission 51,250 62 Public administrators 1,763 59 Expense of pubHc lands 9,917 54 720 American Government and Politics Claims of counties bonded for railroad purposes . $6,755 77 Niagara Reservation . . . : 23,891 48 Quarantine 46,703 31 Agricultural societies 274,230 57 Abolition of grade crossings 50,682 88 Trust fund transactions, less amount included in payments for educational purposes ' i)93 5,989 31 Miscellaneous 27,443 66 Total $39,012,687 28 CHAPTER XXXII SOCIAL AND ECONOMIC LEGISLATION From certain quarters the demand is often made that business should be taken out of poUtics, but any person who has given serious thought to the matter knows that the character of a na- tion's poKtics depends primarily upon the character of its busi- ness.^ PoUtics has to do with the formulation of popular will into law; ^ and every important law affects business — private rights in property. It would be difficult to imagine a single great political issue which^does not in some way or another in- volve business interests^ Protective tariff, control of corpora- tions, s{iip subsidies, labor legislation, tenement-house laws, taxation v^ all these matters and a hundred more of almost equal importa^hce are in politics aijd will remain in politics as long as the interests back of them remain in the nation. Manufacturers will favor a protective tariff; the working class will insist on better wages, hours, and conditions of labor; the dwellers in tenement houses will demand more light and better sanitary arrangements; and so on throughout all the various groups into which a nation is divided. The industries of a nation and economic groups which they create determine fundamentally the nature of the government and the issues which the government must consider. This was fully recognized by the framers of the federal Constitution but has been almost completely lost sight of in the vapid political theorizing that char^-cterized the nineteenth century. '^ The most common and durable source of factions," said Madison, "has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors and those who are debtors fall under a like discrimination. A ^ See E. Jenks; Short Bistory of Politics ; and A. Menger, Nem Staatslehre ; A. Bentley, The Process of Government. ^ Goodnow, Politics and Administration. 3 A 721 722 American Government and Politics landed interest, a manufacturing interest, a mercantile interest, a moneyed interest with many lesser interests, grow up of neces- sity in civilized nations and divide them into different classes actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation and involves the spirit of party and faction in the necessary and ordinary operations of government." ^ The Doctrine of Laissez Faire — No Government Interference The United States began its career as an independent nation before the steam engine and machinery had revolutionized west- ern civilization. When the Declaration of Independence was issued, the majority of the people of the United States earned their livelihood by farming or in the few scattered industries in which the simplest of tools were used. There were no great factories filled with complicated machinery, no railways, no large cities with their countless thousands of workingmen dependent for a livelihood upon mills and mines. There were no vast accumu- lations of capital invested in gigantic enterprises, and consequently no need for government interference and regulation. > Most manufactured articles that were not imported from Europe were made by hand in small workshops where the work- man was both master and employee. Indeed, many men hoped that the United States would never become a manufacturing nation. "While we have land to labor," said Jefferson, "let us never wish to see our citizens occupied at a workshop or twirl- ing a distaff. . . . Let our workshops remain in Europe. It is better to carry provisions and materials to workmen there than to bring them to the provisions and materials and with their manners and principles. . . . The mobs of great cities add just so much to the support of pure government as sores do to the strength of the human body." ^ This primitive economic system, resting upon agriculture, handicraft industries, and small business undertakings, had its own justification in poHtical philosophy and jurisprudence. The government should interfere as little as possible with the right of the individual to buy and sell labor and commodities under * For the remainder of this profound paper, see Readings, p. 50. ' Quoted in Ford, Rise and Growth of American Politics, p. 104. J Social and Economic Legislation 723 whatever terms and conditions he could secure. Each man, ran the theory, is the best judge of what is conducive to his own happiness and will pursue his own enjoyment and self-interest; the result will be generally good. Competition will keep prices down within a reasonable distance from the cost of produc- tion, and any individual, by thrift and industry, may secure the small amount of capital necessary to start in busmess for himself. Jefferson was the leading exponent of this doctrine and looked with unconcealed disKke upon the party of strong government led by Hamilton who was willing to use the poHtical system to restore public credit and to advance the interests of manufac- turers, merchants, and shippers by protective tariffs. In po- litical theory, though by no means in political practice, the doctrine of Jefferson triumphed; and the notion of the less government the better for the people assumed the leading place in American politics. In many ways, accordingly, our state governments have fa- vored the development of the class of small property owners to whose interests the individualistic doctrine of the eighteenth century corresponds; and at the same time they have tried to restrain the growth of corporate and other forms of enterprises tending to concentrate wealth in the hands of a small minority. A few states, notably California, Florida, Montana, and Texas, have sought to maintain a class of small farmers by providing that public lands shall be sold or granted only to actual settlers. According to the constitution of California, "the holding of large tracts of land uncultivated and unimproved by individuals or corporations is against the public interest and should be dis- credited by all means not inconsistent with the rights of private property. Lands belonging to this state which are suitable for cultivation shall be granted only to actual settlers and in quan- tities not exceeding 320 acres to each settler." The amount of public land to be granted to single individuals and families is strictly limited in several other states; and the laws of all states have abolished the. ancient system of primogeniture, according to which the landed estate will pass always to the eldest male heir so that it may be prevented from being broken into small pieces. "Perpetuities and monopolies," runs the constitution of Oklahoma, "are contrary to the genius of a free government 724 American Government and Politics and shall never be allowed, nor shall the law of primogeniture or entailments ever be enforced in this state." A few states even Kmit the term of years for which agricultural land may be leased; and Oklahoma expressly forbids the creation of any corporation in the state for the purpose of buying, acquiring, or dealing in agricultural lands. While thus endeavoring to encourage widespread diffusion of farming lands, the states have at the same time lent support to the class of small traders, merchants, and manufacturers by restraining the absorbing power of great corporations and com- binations. Consequently, in most states, if not in all of them, combinations and trusts to enhance prices and restrain trade or in any way control the prices of commodities or the charges of common carriers are expressly prohibited and declared to be unlawful and against public poHcy.^ "Free and fair competition in the trades and industries," declares the constitution of New Hampshire, "is an inherent and essential right of the people and should be protected against all monopolies and conspiracies which tend to hinder or destroy it." Several other state' constitutions lay upon the legislature the imperative duty of enacting such laws as may be necessary to prevent trusts, pools, . combines, and other organizations from enhancing prices of commodities, restraining competition in the various trades and industries, and otherwise blocking "the natural process of reasonable com- petition." In their endeavor to maintain the individualist sys- tem of competition, our state legislatures have loaded our statute books with laws imposing heavy fines and penalties upon persons and associations seeking to restrain trade in any form. The Control of Corporations It must be noted, however, that there is a difference between a combination striving to monopolize any particular interest or group of interests and mere corporations which, however large they may be, do not necessarily constitute monopolies, although they may always show a tendency in that direction. Our state lawmakers have gradually come to perceive this distinction, and while attempting to restrain monopohes, have recognized the ^ Such combinations in restraint of trade were, of course, illegal at com- mon law. Social and Economic Legislation 725 function of corporations in modern economy, and have devised elaborate schemes of law to control their creation, management, and operation. 1. In the beginning of our history it was the practice of the state legislature to create each corporation by a separate law, but the abuses connected with this method were so great that, as a general rule, the legislature is now forbidden to create corporations by special act, and is authorized to pass only general laws providing equal terms for all corporations.^ According to the constitution of New York corporations may be formed under general laws and will be created by special act only for municipal purposes or in cases where, in the judgment of the legislature, the objects of the corporation cannot be attained under the general law. Delaware has sought to control the process of chartering corpora- tions by stipulating that general and special corporation laws must have the approval of two-thirds of all the members elected to each house of the legislature. Georgia has provided that all corporate powers and privileges granted to banking, insurance, railroad, canal, navigation, express, and telegraph companies shall be issued by the secretary of state in accordance with the provisions of law laid down by the legislature. In Virginia the corporation commission, appointed by the governor of the state, issues all charters and amendments of charters for domestic corporations and all Ucenses to foreign corporations authorizing them to do business in the state. Whatever may be the device adopted to control the creation of corporations the aim is always the same — to obstruct the state legislature in granting special favors to particular corporations. 2. In order to prevent corporations once chartered from claiming perpetual rights under that clause of the federal Con- stitution forbidding states to impair the obligation of contract,^ our state constitutions now make provision for the future amend- ment, repeal, or alteration of general and special laws under which corporations may be created. Some states expressly forbid the irrevocable grant of any franchise, privilege, or immunity. "No law," declares the constitution of Alabama, "making any irrevocable or exclusive grants of special privileges or immunities, shall be passed by the legislature; and every grant of a franchise, privilege, or immunity shall forever remain subject to revocation, ' See Readings, p. 86 and p. 458. * See above, p. 434. 726 American Government and Politics alteration, or amendment." Nevertheless, some provision is included in many state constitutions to the effect that the right of repealing and amending corporation charters and privileges cannot be so exercised as to impair or destroy vested rights or work injustice to the parties concerned. Subject to the Hmita- tion that vested property rights must not be impaired, the state legislature possesses the power to regulate the operations of cor- porations after they have once been created. 3. The internal management of corporations is controlled by the constitutions and laws of most states. In order to secure to stockholders their individual rights, several states — California, Illinois, Missouri, and Nebraska, for example — have declared that each stockholder shall have one vote for each share. Ac- cording to the Nebraska constitution the " legislature shall pro- vide by law that in all elections for directors or managers of in- corporated companies every stockholder shall have the right to vote in person or by proxy for the number of shares of stock owned by him for as many persons as there are directors or man- agers to be elected, or to cumulate said shares and give one can- didate as many votes as the number of directors multiplied by the number of his shares of stock shall equal, or to distribute them upon the same principle among as many candidates as he shall think fit and such directors or managers shall not be elected in any other manner." In some instances the directors of corpora- tions are made liable, jointly and severally, both to creditors and to stockholders for all moneys embezzled or misappropriated by the officers of such corporation during their term as directors or trustees. 4. To prevent stock-watering it is frequently provided by law that corporations shall not issue stock except for money, labor done, or property actually received to the amount of its par value; that stock and bonded indebtedness shall not be increased except in accordance with the general law and the consent of the ; persons holding the larger amount in value of the stock ; and that fictitious issues of stock and indebtedness shall be deemed void. In those states which have public service commissions, it is a common requirement that any corporation wishing to issue stocks and bonds must file with the commission a sworn and accurate statement showing the exact purposes for which the said stocl; and bonds are to be issued and must obtain proper authorization Social and Economic Legislation 727 5. The consolidation or combination of competing corpora- tions is either forbidden ahogether, or permitted under strict regulation. In Oklahoma, no public service corporation can consolidate its stock, property, or franchises with, or lease or purchase the works or franchises of, any corporation owning or having under its control a competing or parallel line — except by legislative enactment upon recommendation of the state cor- poration commission; and furthermore no corporation, chartered or licensed to do business in that state, may own or control in any manner whatever the stock of any competing corporation or corporations engaged in the same kind of business, except such stock as may be pledged in good faith to secure bona-fide indebt- edness. Montana expressly declares that no corporation, com- pany, person, or association of persons in the state shall directly combine or form what is known as a trust. 6. Railway corporations and common carriers are controlled by special regulations so numerous and complicated in character that only a few of the general principles may be stated here. Many states declare railways to be public highways and "free to all persons for the transportation of their persons or property thereon under the regulations prescribed by law." The more recent state constitutions expressly authorize the legislature to fix passenger and freight rates and control railways generally in such a way as to prevent unjust discriminations and maintain certain standards of service. According to the constitution of Nebraska, for example, the legislature is instructed to prevent abuses and unjust discrimination and extortion by all express, telegraph, and railroad companies in the state and enforce such laws by adequate penalties to the extent, if necessary for that purpose, of forfeiture of property and franchise. a. A few years ago a wave of railroad rate regulation swept over the country as the result of the popular cry for a reduction in the passenger charges. In several states a flat rate of from two to three cents a mile has been fixed by the legislature, and is in force.^ In 1907 IlHnois, Indiana, Minnesota, Nebraska, and Pennsylvania passed statutes fixing the maximum passenger rate of railroads at two cents a mile. During the same year Iowa and Michigan passed rate bills classifying railroads accord- ing to their earnings per mile. In Iowa the roads were divided * In New York the two-cent law was vetoed by Governor Hughes. 728 American Government and Politics into three classes, earning $4000 per mile,$35oo to $3000, and less than $3000 per mile; and the rate fixed at two cents, two and a half cents, and three cents per mile respectively. West Virginia and Missouri based the scale of rates upon the mileage of each road affected. North Carolina fixed the rate at two and a half cents. Alabama and South Dakota fixed the maximum rate at two and a half cents, but authorized the railway commission to make certain classifications of the roads.* b. Railroads are now quite commonly forbidden to discrimi- nate in their charges or facilities between places or persons or in the transportation of the same classes of freight; to issue free passes to state officials and members of the state legislature; ^ to grant rebates and bonuses; and to deny individuals, associa- tions, and corporations similarly situated equal rights in the trans- portation of persons or property. Most states, either by constitu- tional or statute law, provide some system of pubHcity whereby each railway company is required to maintain a pubUc office and publish from time to time statistics relative to its business, profits, dividends, transfer of stock, and the like. Railroads are compelled to maintain fences, regulate grade crossings, put in switches under certain conditions, adopt safety appliances, heat and Hght their cars, and do many other things for the safety and convenience of passengers. The list of precise regulations im- posed upon common carriers in almost any state would fill a volume of reasonable compass. c. As the controversy over general railway regulation pro- gressed, the obvious unfairness of the flat rate applying equally to all railroads became apparent. As the Wisconsin Railroad Commission in a decision said: "In order to determine whether ^ "The great tidal wave of railway passenger rate regulation began in Ohio in 1906, swept over the South and Middle West, reached its height in 1907, and since then has been slowly receding. The rising of the wave was marked by discontent with present conditions, a feeling of bitterness, and a strong agitation for reduction in rates. Its fall was marked by injunctions, counter-injimctions, threats, a struggle for state rights, special sessions, com- promises, court decisions, some bitterness toward the courts, and a realiza- tion that there had been some hasty action. The laws have not all been contested, and where they have been sometimes the state has won, some- times the railroads have won, and sometimes the struggle has resulted in a compromise." — R. A. Campbell, in the Political Science Review for August, 1907, and November, 1909. 2 ^leadings, p. 478. Social and Economic Legislation 729 or not a given rate is excessive or otherwise, it is necessary to ascertain: (a) the reasonable value of the property of the carrier as a basis for the allowance of income for investment; {b) to make the apportionment to the state of its proper proportion of the earnings and operating expenses of the company; (c) to ascer- tain what portion of the gross earnings for the state are derived from intra-state and what from interstate traffic; (d) to apportion on some equitable basis the expenses of conducting traffic and other legitimate expenses between the two classes of traffic." In order, therefore, to be more just in controlling rates and facilities furnished by common carriers, the constitutions and laws of a few states have ordered the physical valuation of railroad property. In Oklahoma the corporation commission must as- certain and keep as a matter of public record the amount of money expended in the construction and equipment per mile of every railroad and pubUc service corporation in the state, the amount of money expended to secure the right of way and, furthermore, the amount of money it would require to reconstruct the road- bed,- track, depots, and transportation facilities, and to replace all the physical properties belonging to the railroad or pubUc service corporation. The commission must also ascertain the outstanding bonds, debentures, and indebtedness and the amount thereof; when issued and the rate of interest; when due; for what purposes issued; how used; to whom,issued; to whom sold, and the price in cash, property, or labor (if any) received therefor; what became of the proceeds; by whom the indebtedness is held, and the amount purporting to be due thereon; the floating in- debtedness of the company, to whom due and the residence of the creditor; the credits due on it; the property on hand; and, finally, the judicial or other sales of the said road, its property or franchises and the amounts purporting to be paid therefor. After having thoroughly analyzed the physical structure of the system, the commission must ascertain the salaries and wages paid by the railroads and public service corporations. d. Our state lawmakers, however, are not satisfied with laying down minute regulations to be obeyed by common carriers. They find it impossible to control, by positive enactment, all of the multifarious operations of railway and other public service corporations, and they have discovered also that the same rule cannot be appUed equally to all companies in all parts of the state. 730 American Government and Politics Consequently within recent years we have seen the creation of corporation commissions variously described as public service commissions, corporation commissions, and railroad commis- sions. A public service commission usually consists of from three to five members — in the eastern states generally ap- pointed by the governor and in the West and South quite fre- quently elected by popular vote.^ The powers of the public service commissions vary from state to state, but the general character of this new method of public service control can be gathered from an examination of the recent statute of New York. By that law the state is divided into two districts, the first including what is known as Greater New York *and the second the remainder of the state, and in each district there is a commission of five members appointed by the governor with the approval of the senate and removable by the governor, "for inefficiency, neglect of duty, or misconduct in ofiice," after charges are preferred and an opportunity to be heard granted. Subject to the supervision of the commission are all common carriers; that is, all railway, street railway, express, car, sleeping car, and freight line companies and "all persons and associations of persons whether incorporated or not, operating such agencies for public use in the conveyance of persons or property." ^ All such common carriers are required to furnish safe and ade- quate services and facilities at reasonable and just charges not exceeding the limits allowed by law or the orders of the com- mission. Common carriers must keep open for public inspection their schedules showing rates and fares and charges; they must grant no rebates or unjust discrimination or unreasonable pref- erences; they must grant no free passes except to certain specified persons. They cannot assign, transfer, or lease franchises, or acquire the stocks and bonds of other common carriers, or issue stocks, bonds, or other evidences of indebtedness without the approval of the commission. The commission is especially em- powered to inquire into the general condition and management of all common carriers; to examine their books and papers; to investigate accidents; to fix rates and services; to order repairs and improvements designed to secure adequate services; to order changes in time schedules; to inspect gas and electric meters and ^ See above, p. 508. ^ It is now (1910) proposed to include a number of other corporations. Social and Economic Legislation 731 fix gas and electric rates. The provisions of the law are enforced by drastic penalties; '' every day's violation constitutes a separate and distinct offence " involving a penalty of $5000 for common carriers and $1000 for corporations other than common carriers. It is evident from this necessarily brief and fragmentary review of recent legislation controlling corporations that our states are engaging in a gigantic undertaking requiring the highest type of administrative abihty; for, controlling a vast network of rail- ways with their complex and bewildering processes is a task almost as great as their actual operation. The investigations of the commissions and their studies in railway management, their, supervision of railway accounting, and their control of schedules and charges have given to the government an insight into their business practices which could have been secured in no other way. Whether this new form of government interference in corporate enterprise be regarded as a barrier to sociaUsm or as a step in the direction of government ownership, it cannot be denied that it is requiring, and will in time develop, a high degree of administrative ability which is indispensable to any solution of the large prob- lem of the relation of government to industry.^ 7. Banking and insurance corporations, like common carriers, are also usually subjected to special state control. For example, the consoUdated banking law of New Yprk, covering almost 150 closely printed pages, contains the most elaborate details regulating the establishment of savings-banks, trust companies, loan associations, building associations, mortgage, loan, and in- vestment corporations, safety deposit companies and personal loan associations, as well as the ordinary banking corporations. This law provides for the estabhshment of a banking depart- ment under the state superintendent of banks (appointed by the governor and the senate) who is charged with the execution of the laws relative to banking corporations and associations. He is instructed to examine, either personally or through some competent examiners, every 'bank and trust concern at least twice each year and every savings-bank at least once in two years, making inquiry into the conditions and resources of the corpora- tion, its mode of conducting business, the investment of its funds, the safety of its management, and the security afforded to those ^ On this subject, see Proceedings of the American Political Science Asso- ciation (1907), pp. 287 fif. 732 American Government and Politics by whom its engagements are held. So strict are the terms of the law and so rigid is the investigation that deposits in the savings-banks of New York are as safe as money invested in government bonds. The state of Oklahoma, however, has gone even farther by passmg a law requiring the banking institutions of the state to contribute to a state fund which is used to guarantee depositors so that in case a bank fails the depositors may look to the state for repayment. New York also has a code of insurance law (more than 150 closely printed pages) which provides for the most detailed regu- lation of every form of insurance, under supervision of a state department in charge of the state superintendent of insurance appointed by the governor and the senate and charged with the function of making periodical examinations into the conduct of insurance corporations. Labor Legislation The great inventions which revolutionized industry have made inevitable not only large corporations and combinations; they have created a new class in society — the working class — de- pendent entirely upon the sale of labor power to the owners of the machinery of production — in general a tooUess, property- less, and homeless class.^ With the development of this class have come many special problems, undreamt of by the framers of the American system of government. Like all other classes in the course of human history, the working class has interests and ideals of its own, and is demanding from the state security and protection. As the doctrines of divine right formerly had no permanent validity for the rising middle class, so the doctrines of individual liberty — trial and indictment by jury and due process of law — do not have the same reality to the working-man that they have to members of the possessing group. Freedom of contract between an employer and an employee with a few days' supplies behind him obviously cannot have the same meaning that it has between persons similarly situated as far as economic goods are concerned. To discourse on the liberty afforded by jury trial to a man who has never appeared in a court but often suffers See above, p. 633, note. J Social and Economic Legislation ^^i^ from considerable periods of unemployment is to overiook the patent fact that hberty has economic as well as legal elements. Quite naturally this new industrial democracy is evolving a poHtical philosophy of its own, confused and inarticulate in divers ways, but containing many positive elements ranging from minor modifications of the labor contract to the sociahst doctrine that the passive ownership of property is merely a special privilege to be eUminated by the use of the government as the collective instrument for the administration of all important forms of con- crete capital. With the large impHcations of this new philosophy, the student of politics need not tarry unless he is of a speculative turn of mind, but its concrete manifestations in the form of labor parties and labor legislation and the precise nature and points of working-class pressure on existing governmental functions con- stitute a new and important branch of research and exposition. GeneraHzing from a survey of the labor legislation of the different states, we may say that the most important laws fall into the following groups: (i) While, in general, adult male working-men are supposed to be able to take care of themselves in the struggle for existence, our more advanced commonwealths have some legislation re- lating to this division of the working class. About one-third of the states, including CaHfornia, Indiana, Massachusetts, Minnesota, New York, and Pennsylvania, have established a compulsory eight-hour day for labor on public works. A recent amendment to the constitution of New York, for example, provides that the legislature may regulate and fix the wages or salaries, the hours of work or labor, and make provision for the protection, safety, and welfare of persons employed by the state or by any county, city, town, or civil subdivision of the state, or by any contractor or subcontractor performing work, labor, or services for the state or any city, county, town, village, or other civil division. The hours of labor in certain special employments are also regulated by law in a few states; for example, in Colorado the constitution provides for an eight-hour day in mines, smelters, underground work generally, and in certain dangerous employ- ments. During the year 1907 no less than twenty- three states passed laws regulating the hours for certain groups of adult male working-men. These acts limited the hours of labor of conductors, 734 American Government and Politics engineers, firemen, and other employees engaged in railway business. In Indiana, Iowa, Minnesota, Washington, Wisconsin, and a few other states the maximum number of hours for such employees was fixed at sixteen, and in the case of Oregon, at fourteen, per day. During the same year ten states fixed the hours of labor for telegraph and telephone operators and train despatchers, making the maximum in some instances eight hours and in others sixteen hours; and a federal statute was passed limiting the hours of labor of the railway employees to sixteen per day, so far as interstate commerce was involved, and subject to the provision that whenever the state laws establish a less number of hours as a maximum the federal law should not apply. ^ In regulating the hours of adult labor state legislatures con- stantly have to take into account the principles appHed by the federal Supreme Court in protecting private rights. For example, a law of New York fixing the hours of labor in bakeries at not more than sixty per week, or ten hours a day, was declared un- constitutional by that Court.^ (2) The women and children form a separate division of the working class and are safeguarded by special laws. About one- half of the states, including Colorado, Connecticut, Massachusetts, Nebraska, New York, Pennsylvania, and Wisconsin, have Hmited the hours of labor for women in the important branches of in- dustry. The precise number of hours vary from state to state, but at the present time the general tendency is to fix it at about sixty per week. The law of Tennessee, passed in 1907, provided for a gradual reduction of the hours for women to sixty-two per week after January i, 1908; sixty-one per week after January I, 1909; and sixty after January i, 19 10. The Massachusetts law not only .fixes a maximum number of hours per week for women employed in certain industries, but also forbids the em- ployment of women between 6 p.m. and 6 a.m. in textile manu- facturing estabUshments. With a few exceptions every state in the Union prohibits the employment of children under a certain age in factories, and furthermore hmits the hours of those children (above the age * In addition to regulating the hours of labor a number of states have provided pension funds for certain classes of public servants, such as firemen, teachers, policemen, and library employees. ' See Readings, p. 617. J Social and Economic Legislation 735 limit) actually employed. Night work for children is also for- bidden in the most progressive industrial commonwealths. Within the last decade we have made decided advances in our child-labor legislation. In the year 1907, for example, measures restricting the employment of children were passed in no less than twenty-eight states. In that year a number of southern states, including Alabama, Florida, North CaroHna, South Carolina, and Tennessee, which had been backward hitherto, passed new laws affecting the employment of children in manufacturing estabUshments. The law of New York now in force provides that no child may be permitted to work in a factory without a certificate showing that he is fourteen years old or upwards and is a pubhc school graduate or has pursued an equivalent course of study. No child ^ may be employed in New York factories before eight o'clock in the morning or after five o'clock in the afternoon or for more than eight hours in any one day or more than six days in any one week, with some exceptions. No child under sixteen years of age may work in any mine or quarry in the state, and no female may be employed in any such industries. No child under the age of sixteen may work in any mercantile establishment, business office, telegraph office, restaurant, hotel, apartment house, or in the distribution or transmission of merchandise or messages for more than fifty-four hours in any one week or more than nine hours in any one day, or before seven o'clock in the morning or after ten o'clock in the evening of any day.^ Generally speaking, the child-labor laws tend to fix the mini- mum age Hmit at fourteen and require for each child a certain minimum of education. It has been pointed out, however, by a careful observer that the arbitrary limit of fourteen or fifteen years does not necessarily indicate the ability of a child to engage in regular employment and that a physical test in place of an age Hmit would be better calculated to safeguard the rights of children. (3) While fixing certain standards of hours and wages in specific cases, the states now attempt to improve, by legislation, the conditions under which work is carried on. Factories and * Under sixteen. ^ Discrimination is made in the regulation of child-labor between the larger cities and the smaller cities and villages. 736 American Government and Politics workshops must be ventilated; dangerous machinery must be safeguarded; penalties are placed upon employers using unsafe and improper scaffolds, ladders, and mechanical contrivances in building work; the cables and gears of elevators must be in- spected and maintained at certain standards; fire escapes must be provided for factories more than three stories in height; suitable time must be allowed for meals in factories; boilers generating steam and heat for factory purposes must be kept in good order and periodically examined; public laundry work must not be done in Hving rooms, and all laundries must be kept in clean condition and free from vermin and impurities of a contagious nature; tenement houses cannot be used in the manufacture of a large number of articles, and tenement-house manufacturing generally is closely restricted; certain standards of cleanliness must be maintained in rooms used as bakeries; mines must be ventilated, timbered, and provided with suitable outlets; proper sanitary arrangements must be provided in factories and mer- cantile estabhshments, — such is the general character of the labor law of New York, and it has been duplicated in the more advanced industrial states. Nevertheless, in matters of this kind we are behind the most advanced nations of Europe; and our laws are often not enforced. (4) At the outset of an examination of labor legislation rela- tive to compensating workmen and their families for indus- trial accidents, we are impressed with the lamentable conditions which undoubtedly prevail. The situation is thus described by a careful student of the labor problem. Professor Seager: ^ Fourth of July orators delight to point out the various fields in which we excel, but there is one field of which they say very little, and that is that we kill and injure more working-men in proportion to the number employed on our railroads, in our mines, and factories than any other country in the world. On our railroads three times as many employees are killed and five times as many are maimed each year as on the railroads of the United Kingdom, and the situation in our coal mines is almost as bad, for there each year we average a loss of three and one-third out of every thousand persons employed, whereas in England the average is two, in Germany two and one-half, while in Belgium the average is one. * In a lecture delivered in New York City, in March, 1910. I am in- debted to Professor Seager for the privilege of using this extract. Social and Economic Legislation "Jl'] The prevention of these accidents is a pressing social problem, but it is not of this that I wish to speak to-night, but of the method we have of caring for the 100,000 working-men who are maimed, the 20,000 widows and the 60,000 orphans that are left, as a result of these accidents. Our method of caring for them is neither just nor generous. We leave them to the mercy of a law that has been dis- carded as out of date in practically every other civiHzed country but ours. There are five things in our piesent law that are wrong. In the first place, it is fundamentally wrong in principle; second, it fails signally to remedy a serious social problem; third, it involves appalling waste; fourth, it embitters the relations between the employer and the employed; and fifth, the system is morally demoraUzing. Statistics show that more than one-half of the accidents that occur are due to the hazards of industry; they happen, not because the employees are careless, but because of the nature of the industry. Statistics submitted by the insurance companies show further that on the average not more than forty-five per cent of the money employers pay out in premiums is actually paid to the injured employees in the settlement of claims. About one-third of this goes to the lawyers, the result being that only about thirty per cent of what the employers' Uability costs the employer is of any benefit to the injured. These and other defects in the actual operation of a system of em- ployers' UabiHty based on negligence have led all important countries except the United States to abandon it. Since 1884, when Germany introduced her compulsory accident insurance system, twenty of the leading nations of the world have adopted the plan of putting on industry the cost of indemnifying all the victims of industrial accidents except those who owe their injuries to their own dehberate and wilful negUgence. The principal reason for imposing on the employer the cost of indemnifying the victims of all accidents is that accidents, as a rule, are not due to personal negUgence, but to the nature of the industry which the employer carries on for his own benefit. The cost of insur- ing his plant and machinery is now a regular item in the expense of production; under a system of workmen's compensation the cost of insuring employees from accidents becomes such an item. The industry is compelled to pay for men's maimed bodies and shortened lives in the same way that it pays for worn-out plants and used-up raw materials. Both are aUke costs, necessary to the prose- cution of industry for which consumers, for whose benefit industry is carried on, should be made to pay. Within recent years the injustice of throwing the burden of liability for injury and death in industries upon the defenceless 3B 738 American Government and Politics working-man and his family has been slowly recognized by state lawmakers. A few more advanced state constitutions stipulate that the right of action to recover damages for injuries resulting in death shall never be abrogated and the amount recoverable shall never be subject to any statutory limitation. Oklahoma provides that no such rights under the constitution can ever be waived by contract, expressed or impUed, and adds that the defence of contributory negligence or assumption of risk,^ which would throw the burden upon the injured working-man, shall in all cases whatsoever be a question of fact for the jury to decide. Under the common law employers were only Hable for damages when they were themselves personally responsible — that is, they were not Uable for accidents due "to unpreventable causes or to the carelessness of the employee himself or, one of his fellow-employees." This common-law doctrine of the " fellow- servant," so far as it affects the Uability of the master for injuries resulting from acts or omissions of any other servant or servants of the common master is, in Oklahoma, expressly abrogated as to every employee of every railroad company, street railroad company, interurban railroad company, and every concern en- gaged in mining. The employers' HabiUty law of New York now in force (1910)^ provides that an employee who, while exercising "due care and dihgence" is injured by reason of any defect in the condition of the ways, works, or machinery used by his employer traceable to the negUgence of the person responsible for their being in a proper state or by reason of the negligence of any person in the service of the employer charged with the superintendence of the works, has the right to compensation and remedy against the employer; and in case of death the next of kin has the right of action. The law, furthermore, provides that an employee enter- ing upon or continuing in the services of an employer shall be presumed to have assented to the "necessary risks" and no others, and the necessary risks include only those inherent in the nature of the business which remain after the employer has exercised due care in providing for the safety of his employees ^ Above, p. 560. * There is now in session in New York an Employers' Liability Commis- sion charged with investigating the question and proposing reforms to the legislature. Social and Economic Legislation 739 and has complied with the law affecting such business for the greater safety of his employees. The question whether the employee understood and assumed the risk of injury or was guilty of contributory negligence by continuing in the employment with full knowledge of the risk of injury is one of fact in New York, subject to the usual powers of the CQurt in a proper case to set aside a verdict contrary to the evidence. In short, the judge, not the jury, may say the final word, subject of course to appeal — which the poor workman cannot often afford to pros- ecute. In other words, under the law of New York, as it now stands, the great burden of responsibihty is still thrown upon the work- ing-man, and New York in common with other states of the Union is far behind Great Britain, where "employers are required to compensate, according to a fixed scale, workmen or their famihes for accidents sustained in connection with their employments and resulting in at least two weeks' disability, unless such accident is due to the serious and wilful misconduct of the workman him- self. " 1 The result of placing the responsibility for compensa- tion upon employers in the United Kingdom has been to compel them to take out policies in industrial insurance companies against such risks and to regard this insurance a part of their normal working expenses, just as fire insurance has been regarded for many years. (5) More than three-fourths of the states have established labor bureaus and factory inspection for the purpose of enforcing the provisions of the labor law with regard to hours and wages, and assisting in the maintenance of the sanitary and other standards required by legislative enactment. The law of New York may be taken as fairly typical. In that state there is a department of labor in charge of a commissioner who is appointed by the governor and senate for a term of four years; and in connection with the department of labor there is a bureau of factory inspection headed by the first deputy com- missioner of labor. There is also a bureau of labor statistics in charge of a chief statistician, subject to the direction and supervision of the commissioner of labor. The commissioner of labor and his deputies and agents may administer oaths and take affidavits in matters relating to the * Seager, Economics: Briefer CoursCt p. 345. 740 American Government and Politics enforcement of the labor law. The commissioner may appoint at least sixty deputy factory inspectors, divide the state into dis- tricts for factory inspection, and see that the factories are in- spected as often as practicable for the purpose of enforcing the terms of the law. Through the bureau of labor statistics,^ the commissioner is ordered to collect, systematize, and present in annual reports to the legislature statistical details relative to the commercial, industrial, social, and sanitary condition of working- men and to the productive industries of the state.^ (6) Several states have made provision for free public employ- ment offices, especially for the great cities, designed to help reheve the problem of unemployment. It can hardly be said that these employment offices have been very successful; and they have often been regarded with suspicion particularly by union work- men, ^because they may be used by employers in times of strikes to secure non-union workmen. (7) In order to help in preventing strikes and in mitigating the bitterness of industrial disputes, more than one-half of the states have made either constitutional or statutory provision for media- tion, arbitration, and conciliation. The Massachusetts board of arbitration and conciliation was estabUshed in 1886. During the first eleven years of its existence over three hundred indus- trial controversies were submitted to it for consideration and action and more than one-third of these controversies were settled in accordance with the recommendations of the board. The law of New York provides for a bureau of mediation and arbitration in charge of the second deputy commissioner of labor as chief arbiter, under the supervision of the commissioner of labor. The law provides that whenever a strike or lockout occurs *It appears that Massachusetts was the first state to establish a bureau of labor statistics — in 1869; from 1870 to 1879 nine new bureaus were created, from 1880 to 1890 seventeen bureaus, and from 1890 to 1899 nine bureaus. Massachusetts Labor Bulletin (1908) No. 15, p. 116. 2 It is a general practice throughout the United States to appoint labor commissioners and factory inspectors from among the workers of the po- litical party in power. An investigation made recently showed that prac- tically every labor commissioner owed his office to party services. The result of this is great uncertainty in the tenure of office, with its inevitable results. In order to exchange opinions and help establish uniformity in the : standards of labor legislation the chiefs and commissioners of labor bureaus 1 have formed a national organization and hold annual conventions. Social and Economic Legislation 741 or is seriously threatened, a representative of this bureau shall, if practicable, proceed to the locaHty promptly, and endeavor to effect an amicable settlement by the way of mediation. The state board of mediation and arbitration consists of a chief mediator as chairman and two other officers of the depart- ment of labor free at the time to act. Any grievance or dispute between an employer and his employees may be submitted to this board for determination and settlement. Such submission must be in writing and contain a detailed statement of the dispute and its causes, and also an agreement to abide by the determination of the board and to continue at business or work during the in- vestigation. Upon such submission, it is the duty of the board to hear testimony and investigate the matter in controversy and, within ten days after the completion of the hearing, render a decision, a copy of which is to be served upon each party to the controversy. In several states boards of mediation and arbitration may on their own initiative investigate the causes of industrial disputes, but in no state has arbitration been made obligatory upon em- ployers and employees. It is difficult to estimate the services which may be rendered by these boards of arbitration and concilia- tion. Such a board, says Professor Seager, "with power to in- tervene on the instant it learns of a labor dispute may at times succeed in effecting a settlement by simply bringing the parties together and suggesting possible bases of agreement, at the same time that it removes misunderstandings and assuages wounded feeUngs. Failing in this, it may, by making public the findings in the case and indicating clearly the settlement which appears to it fair, bring such pressure to bear upon the less conciliatory dis- putants that a compromise will seem better than a fight and a prolonged strike or lockout will be avoided. Thus, although without power to enforce its award, a state board of conciliation and arbitration may often prevent strikes and lockouts." ^ In spite of all that has been done by our states to improve the condition of the working class, the United States lags far behind the advanced countries of Europe, such as Germany and Great Britain. Several reasons have been assigned for this backward state of American labor legislation.^ In the first place, the Am- ^ Economics : Briefer Course, p. 318. ^ See an excellent article by B. M. Herron, "Factory Inspection in the United States," American Journal of Sociology, January, 1907. 742 American Government and Politics erican individualist doctrine that any man can rise out of the working class has blinded the American' people to the fact that, however great may be the opportunities for individuals to rise, the working class must yet remain, and that upon its standards of Hfe, its intelligence, and physical vitality the very fate of the nation depends. In the second place, while the United States has been transformed into an industrial nation, the notion of the older agricultural hfe that anybody has a right to work as long as he pleases, under any conditions he is willing to accept, has pervaded our legislatures. In the third place, the distribution of powers in our federal system is such that practically all regulation of industry and labor is vested in the state governments, and each state government, in endeavoring to improve the conditions of labor within its borders, must take into account the fact that too strict rules will only result in driving industries out into the more backward states where they are not hampered by such regulations in behalf of the employees. Finally, in the United States, there is no such opposition between the representatives of organized capital and the representatives of agricultural interests as existed in England and led the latter to champion with great zeal labor legislation which did not in any way affect them adversely. Inasmuch as the working class in the United States has not, up to this point, seen fit to elect its own special representatives in any large numbers to state legislatures, it has had to depend upon the sympathies or fears of the politicians, and the special laws which it has won have been largely concessions to the labor vote. Public Health Standards Government interference with private persons in the mainten- ance of general standards of public health and safety is a matter of comparatively recent development. It was not until well on toward the middle of the nineteenth century that the health laws of the various states went much farther than to regulate in a very ineffective manner the methods of controlling smallpox and other contagious diseases. ' The cholera epidemic of 1848 and 1849 marked the awakening of pubHc interest in the whole question of sanitation and its relation to general welfare. In the latter year Massachusetts appointed a commission to investigate the sanitary Social and Economic Legislation 743 conditions of the entire state and the report of that commission with recommendations for public health boards Ues at the basis of the sanitary regulation not only of Massachusetts but of many other important states in the Union. One after another the states began to create boards of health; and by the close of the century forty- two states and territories had such boards.^ The pubHc health law of a fairly advanced commonwealth will provide for a state department of health with large powers and for county, city, town, and village boards of public health. In New York there is a department of public health headed by a commissioner, appointed by the governor and senate. He is charged with taking cognizance of the interests of health and life of the people of the state and all matters appertaining thereto; he makes inquiries into the causes of diseases; investigates the sources of mortaUty; studies the problem of the effect of locali- ties, employments, and other conditions upon the health of the persons affected; he obtains and preserves information useful in the discharge of his duties or which may contribute to the pro- motion of health and security of life; he may compel the attend- ance of witnesses and force them to testify in matters before him; he may reverse the regulations and ordinances of local boards of health under certain circumstances. The commissioner of health has the power to examine into nuisances and questions affecting the security of Ufe and health in any locality. On order of the governor of the state, he must make examinations, and when the governor, on the report of the commissioner, discovers a pubHc nuisance he may order it to be abated, or removed. The health law of New York further provides for local boards of health and for health officers in the several cities, villages, and towns of the state and vests in them a large and arbitrary power over life and property whenever the maintenance of public health is at stake. A complete pubhc health code will also forbid the manufacture and sale of adulterated foods and drugs. Under any advanced law food is regarded as adulterated if any substance has been mixed with it so as to reduce, lower or injuriously affect its quality or strength; or if any inferior or cheaper substance or substances * Reference: S. W. Abbott, The Past and Present Conditions of Public Hygiene and Medicine in the United States, pp. 9 flf. 744 American Government and Politics have been substituted wholly or in part for the article; or if any valuable constituent of the article has been wholly or partly abstracted; or if the article be an imitation or sold under the name of some other substances; or if it contains wholly or in part diseased or decomposed animal or vegetable substances, whether manufactured or not, or, in the case of milk foods, is a product of diseased animals. Most health laws further provide for main- taining certain standards in drugs and for a certain degree of purity in Uquors and confectionery. The department of health frequently takes cognizance of the interests of public health as affected by the sale or use of food and drugs and adulterations thereof and makes all necessary in- quiries and investigations relating thereto. The health law of New Yo k also regulates and provides for the inspection of all the potable waters in the state so as to prevent contamination from sewage and other sources; it creates a quar- antine and a health officer at the port of New York; it regulates the practice of medicine, dentistry, veterinary medicine, and surgery ; it provides for the registration and regulation of phar- macies and drug stores; the supervision of the practice of chirop- ody, undertaking and embalming, and optometry; the vaccina- tion of school children; and the visitation of institutions for orphans, destitute, or vagrant children or juvenile delinquents. I Closely connected with the health law of the state are the provisions controUing the construction and maintenance of tenements. A well-developed tenement-house law will require certain precautions against fire through regulations relative to the construction of halls, stairways, and fire-escapes; it will define the percentage of a lot which may be occupied by buildings and define the minimum of fight and ventilation. The law of New York, for example, prescribes the minimum of window area for each room in new tenement-houses and also the minimum size of rooms; regulates minutely the sanitary accommodations to be provided for tenements; endeavors to maintain certain stand- ards of cleanfiness by penafizing landlords who neglect their property. The right to commence new buildings and to alter the structure of old buildings in the large cities is always subjected to some control by the tenement-house or health department. Social and Economic Legislation 745 Public Charities All the states in the Union make more or less provision for central and local institutions for the public care of the insane, deaf and dumb, blind, and other defectives who are without pri- vate means. The constitution of Oklahoma provides that educa- tional, reformatory, and penal institutions and those for the benefit of the insane, blind, deaf and mute, and such other insti- tutions as the pubHc good may require, shall be established and supported by the state in such manner as the legislature may prescribe; and it furthermore requires the several counties of the state to make provisions under general state laws, "for those inhabitants who by reason of age, infirmity, or misfortune may have claims upon the sympathies and aid of the county." The state of New York also ifiaintains special institutions for feeble- minded children, feeble-minded women, idiots, epileptics, in- ebriate women, crippled and deformed children, persons afflicted with incipient pulmonary tuberculosis, decrepit and mentally enfeebled persons, juvenile delinquents, imfortimate women, unprotected girls, and Indians.^ Within recent years there has been a tendency toward the reorganization and consolidation of state charitable institutions and the introduction of more scientific and humane treatment of the unfortunate. Every advanced commonwealth now has a state board of charities. In New York this board consists of twelve members appointed by the governor and the senate — one from each judicial district and three from the city of New York. This board of charities is required to visit, inspect, and maintain a' general supervision over all institutions, state and municipal, which are of a charitable, correctional, or reformatory character; it is furthermore required to aid in securing a just, humane, and eco- nomic administration of the institutions subject to its control, to advise the officers, to aid in securing the provision of suitable ac- commodations for inmates, to control the organization and incor- poration of new charitable and reformatory institutions — in short, to assist in maintaining high standards of efficient and humane service in the charities of the state. ^ The care of the poor, that is, persons unable to maintain themselves, is generally vested under state laws in county or town authorities. The local body usually provides poorliouses and institutions of various kinds under the care of the superintendent or overseer of the poor. 746 American Government and Politics Education Education in the United States is regarded as a purely state and local function. Although Congress has aided the develop- ment of education, especially in the western states, by the reserva- tion of school lands and by grants from the sale of public lands, every attempt to set up anything like a national control over education has been steadily resisted. Even the project of es- tablishing a national university, which has been before Congress since the early years of the repubUc, is probably no nearer reah- zation than it was fifty years ago. It is true there is a bureau of education in the Department of the Interior, but the commis- sioner in charge of that bureau has no administrative control over the educational systems of the several states. His functions are limited principally to a study of educational problems and the publication of useful educational data. In this respect, therefore, the United States differs from most countries of Europe where the educational systems are largely dominated by the central governments. It is largely due to this state auton- omy that the educational systems of the several commonwealths, while founded upon certain American ideals, possess a high degree of effective adaptability to local needs. The principle that " knowledge and learning generally diffused throughout the community are essential to the preservation of a free government and of the rights and liberties of the people," is embodied in many of our state constitutions; but several of them go farther and provide in more or less detail for the establishment of state educational systems. The constitution of New York, for instance, requires the legislature to provide "for the main- tenance and support of a system of free common schools, wherein all children of this state may be educated," — a provision to be found in some form in the constitutions drafted since the middle of the nineteenth century. Some other states go even farther. For example, the fundamental law of Oklahoma orders the legis- lature to provide for the compulsory attendance at some public or other school, unless other means of education is afforded, of all the children in the state between eight and sixteen years of age, who are sound in mind and body; and fixes the minimum educa- tion for such children at three months in each year. Under the Social and Economic Legislation 747 constitution of Nebraska, the legislature must arrange for free instruction, in the common schools, of all persons between the ages of five and twenty-one years. The constitutions of several western states also provide for a state university, and in a number of cases, institutions of higher learning have been established by the legislatures under general constitutional provisions — such as that found in Indiana, making it the duty of the legislature "to encourage by all suitable means, moral, intellectual, scientific, and agricultural improvement." Some constitutions, however, go into more detail with regard to education. Wyoming, for example, makes provision for a com- plete and uniform system of public instruction, "embracing free elementary schools of every needed kind and grade, a university with such technical and professional departments as the pubhc good may require and the means of the state allow, and such other institutions as may be necessary." A number of state constitutions set aside special funds for educational purposes. For instance, Nebraska declares to be perpetual funds for common school purposes the amount granted by Congress on the sales of lands in the state, all moneys arising from the sale or lease of sections sixteen and thirty-six in each township of the state (or lands selected in lieu thereof), the pro- ceeds of lands and property accruing to the state through escheat and forfeiture, fines, penalties, and Hcense moneys arising under the general laws of the states and certain other specified revenues. Generally speaking, the constitution of a commonwealth will also stipulate that neither the state nor any subdivision thereof may allow the use of its property, credit, or public money, directly or indirectly, in aiding and maintaining, other than for examina- tion and inspection, any school or institution of learning wholly or in part under the control or direction of any religious denomi- nation or in which any denominational tenet or doctrine is taught. The supervision of the educational interests of each state is usually invested in a commissioner or superintendent of educa- tion, sometimes acting in conjunction with a board and some- times alone. Generally speaking, the state superintendent or commissioner of education is rather narrowly controlled by state laws and has very little power to prescribe the subjects taught in the schools or methods of teaching. It is usually the duty of the 748 American Government and Politics state superintendent to visit the various parts of the state; to cooperate with county superintendents and other local educa- tional authorities in developing uniformly higher standards; to collect statistics and other data; to devise plans for the improve- ment of the educational system; and to make reports to the governor and legislature upon which new legislation may be based. Quite commonly, state normal schools and institutions for the training of teachers are placed under the supervision of the state superintendent, but the state universities stand on a more independent basis. The powers of central boards of education vary greatly from state to state. In some instances they are merely charged with the guardianship of the school funds and school lands; in others, their functions are merely to advise the state superintendent or commissioner on educational policies; in others, they are given a large authority over the whole system of the state, including the power to make rules and regulations affecting the curriculum, books, methods of instruction, examinations and appointment of teachers. The education department of New York may be taken as only fairly typical. It consists of a board of regents (who con- stitute the governing body of that famous institution "the University of the State of New York ") and a commissioner of education. The board of regents, which, in a way, takes the place of the board of education in other states, consists of twelve members elected by the legislature, and it has the power to grant charters to educational institutions, govern the issuance of de- grees, investigate all institutions of learning, establish teaching courses, supervise entrance requirements to professions, direct the educational policies (including those relating to secondary and elementary schools), confer honorary degrees and suitable certificates, diplomas, and degrees on persons who meet satis- factory examination requirements, direct state Hbraries, museums, and similar institutions; and, in the language of the educational law, " cooperate with other agencies in bringing within the reach of the people at large increased educational opportunities and facilities, by stimulating interest, recommending methods, designating suitable teachers and lecturers, lending necessary books and apparatus, conducting examinations and granting credentials, and otherwise aiding such work." The board of Social and Economic Legislation 749 regents by establishing a state system of examinations has done a great deal to standardize and raise the level of educational work throughout the commonwealth. The commissioner of education, who is the chief executive officer of the state educational department, is appointed by the board of regents. He supervises generally the enforcement of the education law and the poHcies adopted by the board of regents. He enjoys high judicial powers because he has the final and conclusive right of determining appeals carried to him from the action of local school officers and boards ; he supervises and directs the school commissioners in all parts of the state; he has special control over state normal schools and training schools for teachers. In short, he is the general advisory and supervisory officer of the state system of education. For the most part the central administration of each state limits its activities to general matters, but the legislature of the common- wealth enacts the laws upon which the whole public system must rest; and, under the terms of the constitution, provides the way in which funds for educational purposes may be raised and apportioned among the various locaUties. The state also looks after the establishment and maintenance of state universities and normal schools. In the East, where there are a number of colleges and universities older than the Republic itself, the state makes little or no provision for higher education except for the training of teachers. In some instances, however, private institutions, such as Cornell, Yale, and Harvard, are recognized by the state and aided, at least in the development of certain departments. In the East, therefore, college and university work is generally regarded as a pecuKar field for private institu- tions, and it is held that the people should not be taxed to furnish higher education to the relatively few who can take advantage of it. On the other hand, in the West the state university is looked upon as the crowning institution of a great democratic educational system, and the western states are steadily working toward a system of free education beginning in the kindergarten and running through the graded and high schools and the colleges to the universities. 750 American Government and Politics The central government of the state also controls by special and general acts the incorporation of colleges, seminaries, and institutions of higher education. It is from the state that in- stitutions of learning secure the power to grant degrees/ The actual administration of education, however, is, for the 1 Total expenses for education in typical states in 1902: Alabama (typical of the South): State $1,310,122 Counties 1,108,256 Cities with a population of over 25,000 in 1900 100,748 8,000 to 25,000 in 1900 35>^90 Other minor civil divisions 70,300 Total ■ $2,624,616 Illinois: State $1,869,984 Counties 251,858 Cities with a population of over 25,000 7,606,605 8,000 to 25,000 1,480,995 Other minor civil divisions 6,750,000 Total $17,959,442 Massachusetts: State $1,037,170 Counties 149,879 Cities with a population of over 25,000 8,327,964 8,000 to 25,000 2,457,908 Other minor civil divisions 1,750,000 Total $13,722,921 Nevada (smallest expenditure) : State $171,946 Counties 4,211 Other minor civil divisions 200,000 Total $376,157 New York (largest expenditure) : State. ^ $ 5,435,787 Counties 22,329 Cities with a population of over 25,000 24,076,015 8,000 to 25,000 1,914,262 Other minor civil divisions 9,000,000 Total $40,448,393 Wealth, Debt, and Taxation (Special Reports of the Census Office, 1907), pp. 982-989. Social and Economic Legislation 751 most part, regarded as a local matter and is vested in county, city, township, and other local authorities. Outside of New England we usually, find a county superintendent or a county board of education, or both, standing in somewhat the same relation to the county schools in which the state superintendent or board does to the whole system of the commonwealth.^ Provision is generally made by law for the division of the county into school districts, but usually township lines are not crossed in the formation of these districts. In fact, the township is often the lowest administrative division of the state educational system and the administration of educational matters in the township or town is left to the t ustee or to some special authorities locally elected.^ Sometimes, however, there is a board of trustees, and sometimes a single ofiicer, in every school district. The administration of education in cities is, as we have seen, vested in a board, sometimes appointed, but quite generally elected by the voters.^ Large experiments have also been made in extending the ad- vantages of education beyond the schools and universities to the broad masses of the people by the estabHshment of public libraries, travelling Ubraries, and extension systems. More than two-thirds of the states, including New York, Michigan, Wisconsin, Indiana, and Minnesota, have endeavored to cariy education beyond the limits of the schoolroom through travelling libraries. Indiana, for example, has provided for the establish- ment of such Hbraries, and the authorities in charge have pre- pared small boxes containing books on special subjects and also books of a general character. These Hbraries are circulated throughout the state through local associations at a nominal cost, and in 1907 the pubhc Hbrary commission of that state reported that there were then in circulation nearly two hundred travelling Hbraries containing about six thousand books and that there were some three hundred local Hbrary associations scattered throughout the state. ^ In New England the local school system is generally in the hands of school committees or supervisors elected in the several towns. 2 Townships are frequently divided into school districts with a special au- thority in each. ^ Above, p. 624. 752 American Government and Politics Legislation Relative to Morals In the United States, notwithstanding our strong individual- ism, the state interferes with what is commonly regarded as individual liberty perhaps as much as any country in the world. It is a common practice to prohibit all labor on Sunday except works of necessity and charity and also to forbid all public sports, exercises, and shows, and all noises disturbing the public peace on Sunday. Gambling, pool selling, lotteries, and betting on races are generally forbidden. A number of states have attempted to limit the manufacture and sale of cigarettes — for example, Indiana has made it unlawful. The manufacture and sale of intoxicating liquors are placed under strict supervision and in a number of cases entirely prohibited. About half a century ago, a wave of temperance swept over the northern states, and Maine, New Hampshire, Vermont, Connecticut, New York, Delaware, Michigan, Indiana, Iowa, and Rhode Island adopted prohibition by legislative act. * When the wave subsided, prohibition was given up in a major- ity of these states in favor of the system of high license. The opening of the twentieth century, however, saw a great revival of temperance enthusiasm, especially in the West and South; and during the last decade Georgia, Alabama, Oklahoma, Mississippi, Tennessee, North Carolina, and North Dakota have adopted state-wide prohibition.^ During the same period a large number of states, including Indiana, Illinois, Minnesota, and Washington, have passed strict local option laws allowing certain local divisions ^ to abolish the sale of liquor by popular vote or by a petition. Similar laws have long been in force pretty generally through- out the Union, and through the persistent efforts of the tem- perance forces, state after state has been'going "dry" by the gradual process afforded by local option. In 1909 it was esti- mated that two-thirds of the territory and almost one-half of the people of the ' United States were under prohibition laws. About two- thirds of the people of Indiana in 1909 resided in ^ In a few instances the prohibition law was wholly invalidated by the court. 2 Maine (1854) and Kansas (1880) were already "dry. " ' Sometimes counties, but more often townships, villages, and cities. I Social and Economic Legislation 753 prohibition territory ; and in Vermont at least 216 towns out of 240 were ''dry." We are in fact in the midst of a nation-wide temperance movement, the outcome of which it is difficult to predict ; but impartial investigators believe that it has more vitality than the movement of fifty years ago because it is being adopted in small communities by popular vote whereas earlier the attempt was made to impose state-wide prohibition by legislative enactment. 3c BIBLIOGRAPHICAL NOTE General Works on American Government E. Baldwin, The American Judiciary. A general survey of the subject intended for the beginning student and layman in law. James Bryce, The American Commonwealth. 2 vols. 1908. Covers the entire field of American government, including party operations. J. W. Bl^gess, Political Science and Comparative Constitutional Law. 2 vols. 1890. Deals with American constitutional law by the comparative method. J. R. Commons, Proportional Representation. 1907. A study of the evils of gerrymandering and district tickets ; proposals for reform. M. CooLEY, A Treatise on Constitutional Limitations. 1890. Discusses the various limitations imposed upon legislative power. A. C. CooLiDGE, The United States as a World Power. 1908. The relations of the United States to the important nations of the world. P. Cotton, The Constitutional Decisions of John Marshall. 2 vols. 1905. Contains the decisions of Marshall dealing with constitutional questions, with a brief introductory note to each case. The Federalist. To be secured in many editions. A collection of papers on the federal Constitution, by Hamilton, Madison, and Jay, which should be in every student's library. FiNLEY AND SANbsRSON, The American Executive and Executive Methods. A study of the offices of President and Governor. F. J. Good NOW, The Principles of the Administrative Law of the United States. 1905. The organization of the executive in national, state, and local government, and judicial control over it. Benjamin Harrison, This Country of Ours. 1901. Gives a very intimate and interesting description of the hfe and work of the President. A. B. Hart, Practical Essays on American Government. 1894. The prin- cipal topics dealt with are : the Speaker, the election of a President, civil service reform, river and harbor bills, and the pubUc land policy. F. C. Howe, Privilege and Democracy in America. Devotes special attention to the land question and the single tax. A. Jameson, A Treatise on Constitutional Conventions. 1887. A full treatment of state and federal constitutional conventions, from a legal standpoint. W. Jenks, Principles of Politics. A study of some fundamental matters of government, such as the suffrage, from the viewpoint of the citizen. [. H. Latane, America as a World Power. Recent history of the United States. (In Hart's American Nation Series.) Emil McClain, Constitutional Law in the United States. 1907. _ Deals with . the powers of the different branches of government and individual rights. P. McGehee, Due Process of Law. 1906. The term "due process" ex- plained in the light of judicial decisions. S. Reinsch, Readings on American Federal Government. 1909. A collec- tion of source extracts illustrating the workings of the federal government. 755 756 Bibliographical Note P. S. Reinsch, World Politics. An"analysis of the forces underlying world relations to-day. Albert Shaw, Political Problems of American Development. 1907. Takes up such questions as immigration, national domain, party politics, rail- ways and trusts, tariff, im)ney, and foreign policy. J. Allen Smith, The Spirit of American Government. 1907. A suggestive study of the fundamental principles of American government. F. J. Stimson, Federal and State Constitutions. A comparative study of American constitutional principles. Joseph Story, Commentaries on the Constitution of the United States. 2 vols. Many editions. Valuable for federal constitutional law; slight refer- ence to actual practice. F. N. Thorpe, The Federal and State Constitutions. 1909. Contains all the charters and constitutions of each state ; arranged chronologically by states. C. G. Tiedeman, The Unwritten Constitution of the United States. 1890. A discussion of the historical development of our constitutional system, particularly those points not described in the written document. W. W. WiLLOUGHBY, The American Constitutional System. 1904. A valu- able survey of the general principles of American constitutional law. Professor Willoughby has a larger work in preparation. WooDROW Wilson, Constitutional Government in the United States. 1908. Devoted largely to a consideration of the salient features of the national government. James A. Woodburn, The American Republic and its Government. 1903. Principally a description of the national government. Works on the Federal Government H. V. Ames, State Documents on Federal Relations. 1906. A collection of j documents illustrating conflicts between the federal and state govern- 1 ments. J D. R. Dewey, Financial History of the United States. 1903. A clear andf valuable general survey. J. Hampton Dougherty. The Electoral System of the United States. 1906. A history of the electoral college and a study of its defects, with suggested remedies. ! J. A. Fairlie, The National Administration of the United States of America.! 1905. A detailed description of the executive department. Max Farrand, The Legislation of Congress for the Government of the Organized^ Territories of the United States, 1 789-1 895. 1896. C. R. Fish. The Civil Service and the Patronage. 1905. A history of tha patronage system and civil service reform. M. P. Follett, The Speaker of the House of Representatives. 1904, A his-' tory of the speakership and a full description of the elements of the Speaker's power. C. H. Forbes-Lindsay, The Philippines under Spanish and American Rules. 1906. John W. Foster. The Practice of Diplomacy. The forms, methods, and functions of diplomatic and consular representation. H. B. Fuller, Speakers of the House. 1909. A general historical sketch of the development of the office of Speaker of the House of Representatives. W. H. Glasson, History of Military Pension Legislation in the United States. 1900. (Columbia Studies.) Bibliographical Note 757 E. C. Griffith, The Rise and Development of the Gerrymander. 1907. A brief history of the gerrymander to about 1850. L. H. Haney, a Congressional History of Railways. 1910. University ot Wisconsin Studies. G. H. Haynes, The Election of Senators. 1906. A study of the present system and of the arguments for and against popular election. J. W. Jenks, The Trust Problem. A study of the economic forces making for industrial combinations. Clara H. Kerr, United States Senate. 1895. Deals principally with the procedure in the Senate in the exercise of its various functions. L. G. McCoNACHiE, Congressional Committees. 1898. A detailed study of the procedure and work of committees in Congress and their influence on legislation. E. C. Mason, The Veto Power. 1891. A historical discussion of the presi- dential vetoes ; description of the procedure ; and the political signifi- cance of the power. B. H. Meyer, Railway Legislation in the United States. 1903. Contains a good account of the early state raihroad commissions, and the leading decisions of the Interstate Commerce Commission. John Bassett Moore, A Digest of International Law. 8 vols. 1906. A monumental collection and digest of materials on every phase of international law. E. P. Prentice, The Federal Power over Carriers and Corporations. 1907. A historical development of the power of Congress over interstate com- merce. J. D. Richardson, A Compilation of the Messages and Papers of the Presi- dents, 1 789-1897. 10 vols. Contains inaugural addresses, annual and special messages, proclamations, and executive orders of the Presidents. L. S. Rowe, The United States and Porto Rico. 1904. D. Y. Thomas, A History of Military Government in Newly Acquired Terri- tory of the United States. (Columbia Studies.) F. Van Dyne, A Treatise on the Law of Naturalization in the United States. Citizenship of the United States. W. F. WiLLOUGHBY, Territories atid Dependencies of the United States. 1905. An excellent brief survey. W. W. WiLLOUGHBY, The Supreme Court of the United States. 1890. A his- tory of the Supreme Court and its relations to the other departments of the government. Woodrow Wilson, Congressional Government. A suggestive study of Con- gress at work. State, Municipal, and Local Govern^nt S. W. Abbott, The Past and Present Condition of Public Hygiene and State Medicine in the United States. 1900. E. E. Agger, The Budget in the American Commonwealths. 1907. (Colum- bia Studies.) W. F. Clark, Elementary Law. 1909. A very useful book for beginning students of law. F. A. Cleveland, Chapters on Municipal Administration and Accounting. 1909. Studies in technical problems of municipal government. J. Q. Dealey, Our State Constitutions. 1907. A brief but valuable survey of the principal features of state constitutions. Horace E. Deming, The Government of American Cities. 1909. Points out 7^8 Bibliographical Note that the defects of our city governments are largely due to their complex- ity and to legislative interference. E. G. Dexter, A History of Education in the United States. 1904. J.' A. Fairlie, Municipal Administration. 1901. A study of municipal functions and the organization of the administration of American and European cities. . . ah- c J. A. Fairlie, Essays on Municipal Admimstration. A collection of papers on special topics relative to American and foreign city government. J. A. Fairlie, Local Government in Counties, Towns, and Villages. 1906. A full description of the organization of local government and its rela- tion to the state government. First National Conference on State and Local Taxation. 1907. Valuable papers on many problems of taxation. F. J. GooDNOW, City Government in the United States. 1904. Deals with the relation between the city and the state, the organization of city govern- ment, and municipal functions. F. J. GooDNOW, Municipal Government. 1909. A comparative study of American and European methods. A. R. Hatton, Digest of City Charters. 1906. Prepared vmder the direction of the Chicago Charter Convention. Contains the frame of govern- ment of the principal cities of the United States, and a few Canadian and European cities, arranged according to topics. F. C. Howe, The City the Hope of Democracy. Municipal ownership and the land problem. Inheritance Tax Laws. Government Printing Office, 1907. Digest of the principal features of the laws of Great Britain, France, and Germany, together with an outline of inheritance taxation in the United States and a collection of judicial decisions relating thereto. IviNS and Mason, The Control of Public Utilities. 1908. Though in form an annotation of the public service commissions law of New York, this is a thorough investigation of the general topic. Municipal aiid Private Operation of Public Utilities. 1907. Report of the Commission on Public Ownership and Operation of the National Civic Federation. An extensive study of the advantages and disadvantages of municipal ownership. E. G. Murphy, Problems of the Present South. An important study of the question of the suffrage in the South. E. P. Oberholtzer, The Referendum in America. 1900. A history of popu- lar legislation in the United States, in both state and local matters. F. Parsons, ^Ae City for the People. A study of municipal utilities from the standpoint of municipal ownership, J. B. Phillips, Recent State Constitution Making. The University of Colo- rado Studies. 1904. Principally an analysis of constitutional changes from 1895 to 1903. J-. B. Phillips, Educational Qualifications of Voters. University of Colorado Studies. 1906. A summary of educational qualifications for voters in the various states at that date. Proceedings of the National Conference for Good City Government. Published, annually, beginning in 1894. Invaluable for municipal development in the United States. Proceedings of the National Civil Service League. Published annually. P. S. Reinsch, American Legislatures and Legislative Methods. 1907. The greater part of the book is devoted to a description of the organization Bibliographical Note 759 and workings of state legislatures. There are, however, valuable chap- ters on Congress. E. C. RoBBiNS, Selected Articles on the Commission Plan of Municipal Gov- ernment. Minneapolis, 1909. A collection of papers on commission government. C. M. Robinson, Improvement of Towns and Cities. 1901. Suggestions on practical ways of making public improvements. L. S. RowE, Problems of City Government. 1908. Principally a discussion of municipal functions. H. R. Seager, a Program of Social Reform. 1910. A study of modem labor problems, employers' liability, workmen's compensation, unemploy- ment, and old age pensions. Lincoln Steffens, The Shame of the Cities. 1904. An expose of political corruption in some of our principal cities. Told with great detail. Lincoln Steffens, The Struggle for Self-government. 1906. An expose of political corruption in some of the state governments. L. Veiller, Housing Reform. 1910. A study of practical methods. D. F. Wilcox, The American City: A Problem in Democracy. 1904. A dis- cussion of some of the newer activities undertaken by the cities. Charles Zueblin, American Municipal Progress. 1902. A description of what our city governments are doing in the way of parks, libraries, schools, recreation, etc. Political Parties and Party Organization J. B. Bishop, Our Political Drama: Conventions, Campaigns, Candidates. 1904. Lively descriptions of national conventions and campaigns, with illustrations and reproductions of cartoons. F. W. Dallinger, Nominations for Elective Office in the United States. 1897. After a brief survey of the historical development of nominating systems, gives a detailed description of current methods. Henry J. Ford, The Rise and Growth of American Politics. 1898. A sug- gestive work on the origin of parties in the United States, and their place in our system of government. F. J. GooDNOW, Politics and Administration. 1900. Deals with the influence of party politics on the conduct of the government. Jesse Macy, Party Organization and Machinery (The American State Series). 1904. A description of national and state party committees. C. E. Merriam, Primary Elections. 1908. Historical survey and sum- mary df principles. E. C. Meyer, Nominating Systems: Direct Primaries versus Conventions in the United States. 1902. Gives an account of the caucus and convention system, and the movement for the direct primary. M. Ostrogorski, Democracy and the Organization of Political Parties. 1902. 2 vols. The second volume is devoted to the history of party organiza- tion in the United States and a description of existing party machinery and methods. E. Stanwood, History of the Presidency. 1898. An account of each presi- dential campaign. J. A. WooDBURN, Political Parties and Party Problems in the United States. Contains a full description of party machinery and the conduct of campaigns. INDEX Note. — For additional references to states and cities, consult the several func- tions of government, for example, finance, judiciary, etc. Acceptance sp)eech, p. 172. Accessory to crime, p. 570. Administration, national, pp. 215 ff. ; state, pp. 492 fif. ; municipal, pp. 593 fif. ; centralization of, p. 654. Advisory initiative, p. 464. Agriculture, department of, pp. 222, 408. Alabama, constitutions of, p. 97 ; popu- lar election of Senators, p. 242 ; suf- frage, pp. 454 f. ; amendment process, p. 458 f. ; salary and term of governor, p. 491 ; pay and term of legislators, p. 527 ; ballot, p. 681 ; primary law, p. 694. Alaska, p. 425. Alien act, p. 107. Aliens, admitted to suffrage, p. 454. Ambassadors, appointment of, pp. 196, 317 flf. ; functions of, p. 319 ; immuni- ties of, p. 319. Amendment clause, of federal Constitu- tion, pp. 56, 60 ff. Amendment, Thirteenth, pp. 68 ff. ; Fourteenth, pp. 69 ff., 436 ff. ; pro- posed Sixteenth, p. 71. Amendment process in state constitu- tions, evolution of, pp. 96 ff. ; charac- ter of, pp. 458 ff. Amendments, to federal Constitution, adoption of, pp. 63 ff., 201 note. American republics, bureau of, p. 222. Annapolis, convention of (1786), p. 43. Anti-federaUsts, pp. 106 ff. Anti-lobby legislation, pp. 543 f. Anti-masons, p. 131. Anti-trust Act (1890), p. 383. Appeals, in colonial courts, p. 13 ; in civil cases, p. 566 ; in criminal cases, P- 576. Appointment, to office, pp. 89 ff . ; federal, p. 216; state, pp. 494, 508, sii ; city, p. 5Q_2. Apportionment, for state legislatures, p. 520. Appropriations, federal, pp. 365 ff. ; state, pp. 508 ff. Arbitration, international, pp. 339 ff. ; labor and capital, p. 741. Arizona, p. 420. Arkansas, popular election of Senators, p. 242 ; suffrage, p. 455 ; amendment process, p. 458 ; salary and term of governor, p. 491 ; pay and term of legislators, p. 527 ; ballot law, p. 680; primary law, p. 694. Army, United States, pp. 342 ff. Arrest, warrant for, p. 571. Articles of Confederation, failure of, pp. 28, 36 ff. Assessments, state and local, p. 714. Assessor, county, p. 647. Attainder, bill of, p. 434. Attorney-general, federal, pp. 189, 198, 204, 210, 219, 221, 300; state, pp. 483, 501. Attorney, prosecuting, pp. 549, 572, 643. Auditor, state, pp. 483, 500 ; county, p. 647. Australian ballot, pp. 675 ff. Ballot, popular control through, pp. 469 ff. ; Australian, p. 675 ; Massachu- setts, p. 677 ; party column, p. 678. Banks, national, p. 377. Banking associations, p. 376. Banking (state), supervision of, p. 731. Bankruptcy, p. 259. Baths, municipal, p. 630. Bicameral legislature, pp. 53 ff., 505, 519. Bill of attainder, p. 434. Bill of credit, pp. 40, 375. Bill of rights, federal, p. 147 ff. ; state, p. 447- Bills, introduction of, into Congress, p. 271 ; drafting of, p. 497; in state legislature, pp. 537, 542, 545. Board of estimate and apportionment in Nfc../ York City, p. 595. 761 762 Index Board system in cities, pp. 593 ff- Boards, county, p. 640. Boston, council, p. s^S .* mayor, p. 59 budget, pp. 592, 604 ; civil service, p 602 ; (iarter revision of 1909, p. 602 street paving, p. 616 ; education ex penditure, p. 624; libraries, p. 626 parks, p. 627 ; percentage owning homes, p. 633; "191S movement," p. 634 note. Bribery in elections, p. 671. Budget, city, preparation of, pp. 604 ff . ; state, pp. 708 ff. Business taxes, p. 717. Cabinet, appointment of, pp. 185, 190; character of, pp. 219 ff. ; proposed state, pp. 504 f. Calendar Wednesday, p. 290. California, popular election of Senators, p. 242 ; prosecution by information in, p. 439 ; constitution of, p. 446 ; residence qualification for voters, p. 454 ; educational test for voters, p. 455 ; amending process, p. 459 ; term and salary of governor, p. 491 ; new state ofBces in, p. 508 ; pay and terms of legislators, p. 527 ; legislative refer- ence, p. 545 ; code in, p. 556 ; con- stitutional provisions for cities, p. 583 ; initiative and referendum for cities, p. 597 ; commission government in, p. 599; ballot in, p. 681 ; primary law, 694 ; land law, p. 723. Campaign, national, pp. 174 ff. ; contri- butions by corporations, p. 176 note; character of contributions, p. 669 ; expenses regulated, p. 701. Candidates, presidential, tours by, p. 178; assessment of, p. 668. See Convention and Primary. Capital punishment, pp. 575 f. Caucus, legislative, p. 128 ; congressional nominating, p. 1 29 ; congressional, p. 268 ; in state legislature, p. 533. Centralization, federal, p. 386. Chairman. See Committee, national ; state, p. 657. Chancellor, p. 4. Chancery courts, p. 548. Charities, public, p. 745. Charter-making for cities, pp. 581 ff. Chicago, elections in, p. 471 ; percentage of foreign-born inhabitants, p. 578; charter revision, p. 584; council, p. 585 ; mayor, p. 591 ; civil service, p. 597; children's courts, p. 612 ; hous- ing, p. 615; street railway mileage, p. 619; transportation, p. 619; edu- cation expenditures, p. 624 ; public lecture system, p. 626 ; libraries, p. 627 ; parks and playgrounds, pp. 628 ff. ; percentage owning homes, p. 633 ; voters' league, p. 704. Child labor, p. 734. Chinese exclusion, pp. 120, 122, 387. Chisholm v. Georgia, pp. 65, 76. Circuit court. See Judiciary, federal. Citizens, rights of, in war time, p. 352. Citizens Union of New York, pp. 546, 704. Citizenship, p. 160. City government, elective offices in, p. 481 ; difficulties of, p. 578 ; and the state legislature, p. 579 ; home rule, p. 579 ; special legislation for, pp. 580 ff. ; classification of cities, p. 582 ; charter- making and amendment, pp. 682 ff. ; council, pp. 584 ff. ; taxation, p. 589 ; franchises, p. 590 ; mayor, pp. 591 ff. ; finances, pp. 591 f., 603 ff. ; adminis- tration, p. 593 ; departments of, p. 595 ; civil service, p. 596 ; suffrage, p. 597 ; initiative and referendum, p. 597 ; re- call, p. 597 ; party nominations, p. 598 ; commission government, pp. 598 ff. ; budget, pp. 604 ff. ; police, pp. 607 ff. ; courts, pp. 6r iff. ; health, tenement, and fire departments, pp. 614 ff. ; streets, pp. 616 ff. ; transportation, p. 619 ; waterworks, p. 620 ; education in, p. 624 ; libraries, p. 627 ; parks, pp. 627 ff. ; baths, p. 630; death-rate, p. 631 ; land problem, p. 631 ; home-owning, p. 633 ; municipal ownership, pp. 634 ff. Civil service, federal, reform of, pp. 120, 222 ff. ; act, p. 223 ; commission, pp. 222 ff. ; examinations, pp. 225 ff. ; classified, p. 224 ; extension of, p. 224 ; exceptions in, p. 226 ; appointment to, p. 226 ; removal from, p. 227 ; politics in, p. 228; pensions, p. 230. Civil service, state, pp. 51 1 ff. ; municipal, p. 596. Claims, federal court of, p. 300 note. Classes, colonial, p. 16. See Labor. Clerk, county, pp. 549, 648. Cleveland, council, p. 585 ; mayor, p. 591 ; garbage disposal, p. 618; trans- portation, p. 619 ; playgi^Sunds and parks, p. 628; franchises, p. 635. Index 7^3 Coal supply, pp. 40Q f. Codification of the law, pp. 555 IT. Coins, p. 376. Colorado, sufifrage, pp. 453 f. ; amend- ment process, p. 458 ; salary and term of governor, p. 4Q1 ; pay and term of legislators, p. 527 ; initiative and referendum for cities, p. 507 ; commis- sion government in, p. 599 ; ballot law, p. 681 ; state support of campaigns, P- 703. Commander-in-chief, power of President as, pp. 194 ff. Commerce, under Articles of Confedera- ^ tion, pp. 37 ff. ; interstate and foreign, PP- 55. 258, 379 ; state interference, p. 432 ; state regulation, pp. 724 ff. Commerce and labor, department of, pp. 222, 392. [ Commission government, municipal, pp. 484, 598 ff. ( oinmissions, state, pp. 501 ff. ; criticism of, p. 502 ; prop>osals for reform, p. 504 ; public service, pp. 508, 730 f. Committee (party), national, pp. 166, 172; state, pp. 657, 690 ff. ; county, p. 691. Committee of the whole (Congress), p. 274 and note. C(»mmittees, correspondence, pp. 22 ff. Conmiittees in Congress, pp. 274, 276 ff., 20 1 ff. ; in state legislatures, pp. 534 ff. Common law, p. 553. Comptroller, state, p. 500. Concurrent resolutions, pp. 201 note 2, 2QO note. Confederation, Articles of, pp. 26 ff. Confederation, New England, p. 20. ( onference committee, p. 291. Congress, first Continental, pp. 23 ff. ; -^(•cond Continental, pp. 25 ff. Congress, United States, salary of members, p. 244 ; freedom of arrest, p. 245 ; freedom of speech, p. 245 ; internal organization, p. 246 ; quorum, p. 246 ; sessions, p. 248 ; powers, pp. 253 ff. ; debate in, p. 254; party organization in, pp. 267 ff. ; business in, p. 269; rules, pp. 272 ff. ; Speaker of House, pp. 27? ff. ; committees of, pp. 276 ff. ; relation to President, pp. -'05 ff. Coimecticut, colonial government in, pp. 3-20 passim; part in the Revolu- tion, pp. 22-33 passim; suffrage and qualifications for office in, pp. 80 ff. ; salary and term of governor, p. 491 ; representation in, p. 521 ; pay and term of legislators, p. .xa^-' ballot law, p. 68 1. ^--- Conservation commission, p. 406. Conservation of natural resources, pp. 405 ff. Constitution, federal, demand' for, pp. 42 ff. ; call of convention to frame, p. 44 ; the framing of, pp. 44 ff., 49 iT. ; compromises of, p. 52 ; contrasted with Articles of Confederation, pp. 53 ff. ; ratification, pp. 5O ff. ; develop- ment of, pp. Oo ff . ; amendments to, pp. 63 ff. ; principles of, pp. 145 ff. See Amendments. Constitutions, state, formation of, pp. 28 ff. ; size of, p. 79 ; tendencies in development of, pp. 78 ff. ; principles of, pp. 445 ff. Consuls, appointment of, p. 196 ; func- tions of, pp. 322 ff. Contract, obligation of, pp. 40, 76, 434 ff. Contract labor, exclusion of, p. 387. Contracts, law of, p. 560. Contributory negligence, pp. 560, 738. Convention of 1787, pp. 43 ff. Conventions (party), early, p. 127; rise of national, p. 130 ff. ; working of national, pp. 166 ff. ; state, pp. 128, 489, 659, 699. Conventions, state constitutional, pp. 4s8f. Copyrights, pp. 259 f. Coroner, p. 646. Corporations, federal regulation, pp. 380 ff. ; state regulation, pp. 440, 451, 724 ff. ; law of, p. 563 ; contributions to parties, p. 702 ; taxation of, p. 716. Corrupt practices acts, p. 701. Council, city, pp. 584 ff. ; form of, p. 585 : size of, p. 585 ; elections for, p. 586 ; decline in, p. 587 ; powers of, pp. 588 ff. ; and administration, p. 590; relation to mayor, p. 591. Council, colonial, pp. 7 f. ; governor's, p. 88. County, government, pp. 639 ff. ; court, pp. 13, 548, 642 ; elections in, p. 484 ; party organization, p. 661. Courts. See Judiciary. Crimes, power of federal government over, p. 262. 764 Index Criminal law, pp. 568 fif. ; procedure, pp. ISO, S7I ff- Cuba, relation to United States, p. 427- Cumulative voting in Illinois, p. 523. Customs court, p. 300 note i. Debate, limits on in House of Representa- tives, p. 274 ; in the Senate, p. 275 ; in state legislature, p. 538. Debt, national, p. 373 note ; state, p. 707. Debt limit, state, p. 450. Delaware, colonial government in, pp. 3-20 passim; formation of state gov- ernment, p. 31 ; suffrage and qualifi- cations for office, pp. 80 ff . ; salary and term of governor, p. 491 ; pay and term of legislators, p. 527 ; ballot law, p. 681. Democracy, jk colonial limes, pp. 16 ff. ; in the national «;onyention of 1787, pp. 46 ff. ; rise of ^political, pp. 79 ff. ; rise of western, pp. 108 ff. Democratic party, pp. i Index 767 McKinley bill, p. 391. Mail matter, definition of, p. 395. Maine, judges, p. 452 ; suffrage, p. 45s ; initiative and referendum, p. 463 ; salary and term of governor, p. 491 ; pay and term of legislators, p. 527 ; ballot law, p. 681 ; prohibition in, P- 752. Majority, rule, p. 46 ; right of, limited, p. 449- Mandamus, p. 303. Manslaughter, p. 569. Manufactures, bureau of, p. 393. Marbury v. Madison, pp. 76, 308. Marque and reprisal, p. 257. Maryland, colonial government in, pp. 3-20 passim ; formation of state consti- tution, p. 32 ; suffrage and qualifica- tions for office, pp 8off. ; constitutions of, p. 98 ; popular election of Senators, p. 242 ; term and salary of governor, p. 491 ; pay and term of legislators, p. 527 ; ballot in, p. 680 ; primary law, p. 694. Marriage, law of, p. 561. Marshals, federal, p. 300. Martial law, pp. 345, 495. Massachusetts, colonial government in, pp. 3-20 passim; part in the Revolu- tion, pp. 22-23 passim; formation of state constitution, p. 29 ; Shay's rebelUon, p. 40 ; suffrage and quaUfi- cations for office, pp. 80 ff. ; governor of, p. 87 ; elective offices in, p. 90 ; constitution of, p. 97 note i ; elective offices in, p. 90 ; judiciary, p. 452 note ; educational test, p. 455 note ; amend- ing process, pp. 458 f ; pubhc opinion bill, p. 466 ; salary and term of governor, p. 491 ; civil service law, p. 512 ; legislative apportionment, p. 520 ; pay and term of legislators ; p. 527 ; sessions of legislature, p. 528; com- mittee system in legislature, p. 535 ; judges, p. 452 ; suffrage, p. 597 ; commission government in, p. 599 note ; ballot, .pp. 677 ff. ; state committee, p. 691 ; primary law, debt, p. 707 ; income tax, p. 716 ; labor legislation, PP- 733 f • ; arbitration board, p. 740 ; public health commission, p. 742. Mayor, pp. 591 ff. ; relation to council, p. 591 ; veto, p. 591 ; powers of, pp. 483, 592 ; growth of power, p. 593- Message, governor's, p. 496 ; President's, pp. 197, 199. Michigan, suffrage in, pp. 85, 453, 454 ; popular election of Senators, p. 242 ; amending process, p. 458 f . ; salary and term of governor, p. 491 ; gerry- mander in, p. 523 ; pay and terms of legislators, p. 527 ; cities law, p. 583 ; local government, p. 641 ; ballot law, p. 681 ; primary law, p. 694 ; railroad rate law, p. 727. Military officers, appointment of, p. 194. MiUtia, pp. 19s, 343, 495- Mineral lands, p. 404 ; resources, p. 409. Ministers, pp. 317 ff. Minnesota, admission of, p. 445 ; suffrage in, p. 453 ; amending process, pp. 459 f.; term and salary of governor, p. 491 ; pay and terms of legislators, p. 527 ; initiative and referendum for cities, p. 597 ; ballot in, p. 680 ; primary law, p. 694 ; constitutional provision for cities, p. 583 ; railway rates, p. 727 ; eight-hour day, p. 733. Mints, federal, p. 376. Mississippi, popular election of Senators, p. 242 ; suffrage, pp. 454 ff. ; amend- ment process, p. 458 ; salary and term of governor, p. 491 ; pay and term of legislators, pp. 527 f . ; ballot law, p. 680 ; primary law, p. 694. Missouri, popular election of Senators, p. 242 ; amendment process, p. 458 ; initiative and referendum, p. 463 ; salary and term of governor, p. 491 ; pay and term of legislators, p. 527 ; legislative control of cities, p. 599 ; ballot law, p. 679 ; primary law, p. 694. Money. See Finance, federal. MonopoUes, forbidden, pp. 448, 723. Monroe doctrine, pp. ^2>3 ff- Montana, suffrage, p. 453 ; initiative and referendum, p. 463 ; salary and term of governor, p. 491 ; state ad- ministration, p. 507 ; pay and term of legislators, p. 527 ; initiative and refer- endum for cities, p. 597 ; ballot law, p. 681. Morning hour, p. 286. Municipal. See City. Municipal ownership, pp. 634 ff. National resources, pp. 401 ff. NationaHsm, p. 26. Naturalization, p. 161. 768 Index Naval academy, p. 349. Navy, pp. 346 S. ; department of, 348. Nebraska, popular election of Senators, p. 242 ; suffrage, pp. 453, 455 J resi- dence requirement for voters, p. 454 ; amendment process, pp. 458 f. ; local initiative and referendum, p. 465 ; salary and term of governor, p. 491 ; impeachment process, p. 509 ; removal process, p. 510; pay and terms of legislators, p. 527 ; legislative reference, p. 545 ; initiative and referendum for cities, p. 597; ballot law, p. 581; primary law, p. 694 ; state debt, 707 ; railroad rate law, p. 727 ; control of corporations, p. 726 ; labor law, p. 734 ; education, p. 747. Negro suffrage, pp. 84 ff., 426, 455. Nevada, popular election of Senators, p. 242 ; term and salary of governor, p. 491 ; pay and term of legislators, p. 527 ; ballot law, p. 680. New Hampshire, colonial government, pp. 3-20 passim; formation of state government, pp. 28, 30; suffrage, pp. 80 ff. ; salary and term of governor, p. 491 ; pay and term of legislators, p. 527 ; ballot law, p. 681. New Jersey, colonial government in, pp: 3-20 passim; part in the Revolu- tion, pp. 23-33 passim; formation of state government, p. 31 ; suffrage and qualifications for office, pp. 80 ff. ; amending process, p. 458 f. ; term and salary of governor, p. 491 ; pay and term of legislators, p. 527 ; ballot law, p. 679 ; primary law, p. 694. Newlands act, p. 408. New Mexico, p. 420. New Orleans, council, p. 585 ; education expenditure, p. 624 ; percentage own- ing homes, p. 633. New York City, pp. 578-637 passim. New York (state), colonial government in, pp. 3-20 passim; part in Revolu- tion, pp. 22-33 passim; formation of state government, p. 31 ; suffrage and qualifications for office, pp. 80 ff. ; governor in, p. 88 ; elective offices in, pp. 89 ff. ; suffrage, p. 453 ; amend- ment system, p. 459 ; salary and term of governor, p. 491 ; power of governor, pp. 495 ff. ; special session, p. 497 ; state administration, p. 501 ; civil service, pp. 511 ff. ; legislature of, pp. 518-545 passim; anti-lobby law, p. 543 ; party organization, pp. 657 ff. ; ballot, p. 681 ; primary law, pp. 686 ff. ; taxation in, pp. 715 ff. ; control of corporations, pp. 725 ff. ; labor legis- lation, pp. 733 ff. ; public health, p. 743 ; education, p. 748. Nominations, early methods, pp. 126 ff. ; direct, pp. 658 ff. See respective offices. President, Senator, etc. Non-partisanship, pp. 703 ff. North Carolina, colonial government in, pp. 3-20 passim; suffrage and qualifi- cations for office, pp. 80 ff. ; salary and term of governor, p. 491 ; pay and term of legislators, p. 527 ; ballot law, p. 681. North Dakota, popular election of Sena- tors, p. 242 ; suffrage, p. 453 ; salary and term of governor, p. 491 ; pay and term of legislators, p. 527 ; initiative and referendum for cities, p. 597 ; commission government, p. 599 ; bal- lot law, p. 681 ; primary law, p. 694. Notification speech, p. 172. Officers, army and navy, appointment of, p. 350 ; elective, pp. 89, 470 ; federal, pp. 189 ff. ; state, pp. 499 ff. Ohio, suffrage in, p. 85 ; elective offices in, p. 93 ; popular election of Senators, p. 242 ; admission of, p. 444 ; residence qualification for voters, p. 454 ; amend- ment process, pp. 458 ff. ; salary and term of governor, p. 491 ; character of legislature, p. 526 ; pay and term of legislators, p. 527 ; ballot in, p. 681 ; primary law, p. 694 ; accounting law, PP- 655, 713 ; debt limit, p. 707 ; uni- formity in taxation, p. 707. Oklahoma, popular election of Senators, p. 242 ; bill of rights, pp. 484 ff. ; suf- frage, p. 453 ; initiative and referen- dum, pp. 460 ff. ; term and salary of governor, p. 491 ; pay and term of legis- lators, p. 527 ; constitutional provision for cities, p. 583 ; initiative and referen- dum for cities, p. 597 ; commission gov- ernment in, p. 599 ; ballot in, p. 680 ; primary law, p. 694 ; law relative to corporations and labor, pp. 727 ff. Order of business in House of Representa- tives, pp. 284 ff. Oregon, popular election of Senators, p. 243 ; suffrage, pp. 453, 455 ; initiative Index 769 and referendum, pp. 460 ff . ; salary and term of governor, p. 491 ; state admin- istration, p. 504 ; removal and recall, pp. 510 f. ; pay and terms of legislators, p. 527 ; legislative reference, p. 545 ; limitations in behalf of cities, p. 583 ; initiative and referendum for cities, p. 597 ; ballot law, p. 680 ; primary law, pp. 686, 694, 697. Overcrowding, in cities, p. 631. Panama, pp. 425 f. Parcels post,, p. 397. <- Pardon, President's power of, p. 198 ; governor's, p. 498. Parks, municipal, pp. 627 flf. Parliamentary government, pp. 211 flf. Parties, political, relation to government, PP- 73. 99 ff-, 206 ; origin of, pp. 103 ff. ; national organization, 'pp. 166 ff. ; state organization, pp. 657 ff. ; abuses and perversions, pp. 133, 139, 146, 477, 668 ; regulation of, pp. 672 ff. See President, Congress, etc. Patents, pp. 259 f. Patronage, federal, pp. 190 ff. ; p. 207. Pennsylvania, colonial government in, pp. 3-20 passim; part in the Revolu- tion, pp. 23-33 passim; formation of state government, pp. 31, 32 ; suffrage and qualifications for office, pp. 80 ff. ; governor in, p. 87 ; suffrage, p. 455 ; amendment process, pp. 458 f. ; salary and term of governor, p. 491 ; board of pardons, p, 498 ; pay and terms of legislators, p. 527 ; special and local legislation, p. 581 ; ballot, p. 681 ; primary law, p. 695 ; uniformity in taxation, p. 707. Pensions, military, p. 354. Petition, nomination by, p. 598 ; right of, p. 149. Philadelphia, position, under state con- stitution, p. 581 ; council, p. 585 ; mayor's veto power, p. 591 ; civil ser- vice, p. 597 ; children's courts, p. 612 ; education, pp. 624 ff, ; percentage owning homes, p. 633 ; gas works scandal, p. 636. Philippine Islands, pp. 423 ff. Platform, national, preparation of, p. 170; state, pp. 690, 700. Piatt amendment, p. 427. Political theory, p. 17. Politics. See Party. 3D Pohtics, world, pp. 330 ff. Police, state, p. 607 and note i ; power, pp. 432, 440 ; city, pp. 607 ff. ; corruption, p. 671. Popular election of Senators, pp. 242 ff. Populists, p. 122. Portland, Oregon, referendum in, pp. 473 f-_ Porto Rico, government of, pp. 422 f. Postage rates, pp. 395 f. Postal savings banks, pp. 123, 398. Postmaster-General, p. 399. Post-office service, pp. 394 ff. ; receipts and expenditures, p. 395 ; department, pp. 218, 222, 399. Powers, separation of, pp. 152 ff. President, origin of office, p. 53 ; nomi- nation and election of, pp. 170 ff. ; powers of, pp. 187 ff. ; director of the administration, p. 187 ; powers of appointment and removal, p. 189 ; war powers, pp. 194, 344 ; and foreign affairs, p. 196 ; and Congress, pp. 194, 208, 212; message, p. 199; veto, p. 201 ; salary, p. 205 ; as party leader, p. 206 ; pardon, p. 198 ; foreign affairs, p. 315- Presidency, succession to, p. 184 note. Press, freedom of, p. 148. Primary legislation, pp. 143 ff., 685 ff. ; for cities, pp. 598, 601 ; complexity of, p. 472 ; direct, arguments on, pp. 693 ff. See Nominations. Primogeniture, p. 723. Private rights, under federal Constitution, pp. 146 ff. Privileges and immunities of citizens, pp. 157 f-. 436 ff. Probate courts, p. 548. Procedure, civil, pp. 563 ff. ; criminal, P- 571- Procedure, in Congress, pp. 267 ff. ; in state legislatures, pp. 536 ff. Prohibition laws, pp. 433, 752. Prohibitionists, pp. 119 ff. Property, the basis of government, pp. 46 ff. ; private, p. 151 ; protection of, p. 164 ; law of, pp. 557 ff. Proprietary colonies, p. 6. Prosecution of criminals, p. 644. Puritans, p. 18. Qualifications, on suffrage, pp. 79 ff., 453 ff. ; for officers, pp. 81 ft". Quorum in Congress, pp. 273, 275. 770 Index Railroads, federal regulation of, pp. 380 ff. ; state regulation, pp. 407, 44°. 727 S. Rebates, p. 381. Recall, general, p. 511 J in cities, pp. 597, 601. Reclamation work, p. 408. Reconstruction in the South, p. 117. Recorder, county, p. 648. Recreation, in cities, p. 628. Reference bureaus, p. 544. Referendum. See Initiative. Registration of voters, p. 673. Registry mail service, p. 395. Religion, freedom of, p. 148. Removal, power of, in colonial times, p. 4 ; President's j)ower, p. 193 ; in state governments, pp. 508 ff. Rendition, interstate, p. 159. Representatives, House of, gerrymander, p. 236; term of members, p. 237; elections to, p. 238 ; contested elections, p. 238 ; quorum in, 247 ; at work, pp. 267 ff. See Congress. Republicans (Jeffersonian), p. 106. Republican party, origin of, pp. 114 ff. ,' first national convention, p. 115; first national campaign, p. 115; first state ticket, p. 114 ; campaign of i860, p. 116; reconstruction of, pp. 116 f . ; platform of 1908, p. 123 ; tariff, p. 391. Residence requirement for voting, p. 454. Responsibility, official, pp. 90 ff. Revenue. See Finance. Revision of laws, p. 545. Revolution, the American, pp. 21 ff. Rhode Island, colonial government in, pp. 3-20 passim; veto power in, p. 6 note ; part in Revolution, pp. 23-33 passim; formation of state govern- ment, p. 31 ; salary and term of gov- ernor, p. 491 ; pay and term of legis- lators, p. 527 ; ballot in, p. 681. "Riders," to bills, p. 202. River and harbor improvements, pp. 415 f. Robbery, p. 569. Rules of House of Representatives, pp. 272 ff. ; Senate, 275 ; committee on, pp. 283-287. Rural free delivery, p. 397. St. Louis, charter, p. 583 ; council, p. 585; children's court, p. 612; edu- cation expenditure, p. 624. Salary. See the several oflBces. Saloon in politics, p. 671. Samoa, p. 426 note 2. San Francisco, charter, p. 583 ; counal p. 58s ; mayor, p. 591 ; civil service, p. 597 ; budget, p. 604 ; percentage owning homes, p. 633. Santo Domingo affair, p. 197. Second-class mail, p. 396. Secretaries, federal, pp. 215 ff. ; salaries of, p. 221 note; commonwealth, p. 499. See the several federal functions, Comnfttce, Post-office, War, Foreign affaiP6»»^etc. Sedition Act, p. 107. Selectmen, town, p. 650. Senate, United States, patronage, pp. 189 ff. ; representation in, pp. 239 f . ; quali- fications of Senators, p. 240 ; election of Senators, pp. 120, 125, 241 ff. ; dead- locks, p. 241 ; term, p. 244 ; compared with House pp. 249 ff. ; and appropria- tions, pp. 251, 362. Senate, state, p. 519. Senatorial courtesy, p. 191. Separation of powers, criticism of, p. 155 ; defence of, p. 155. Sessions, special, of Congress, p. 249 ; state legislature, p. 528. Sheriff, p. 645. Sherman anti-trust act, p. 384. Silver certificates, p. 376. Silver, free coinage of, p. 122 ; purchase of, p. 376. Single tax, p. 632. Slavery, abolition of, pp. 67 ff. Socialism, p. 733. SociaUst labor party, p. 1 20. Socialist party, p. 121. Soil, conservation of, pp. 407 ff. South Carohna, colonial government in, pp. 3-20 passim; formation of state government, p. 30 ; suffrage and quahfications for office, pp. 80 ff. ; popular election of Senators, p. 242 ; salary and term of governor, p. 491 ; pay and term of legislators, p. 527 ; ballot law, p. 679 ; primary law, p. 694. South Dakota, popular election of Sena- tors, p. 694 ; suffrage in, p. 453 ; initia- tive and referendum, pp. 463, 469 ; salary and term of governor, p. 491 ; term and pay of legislators, p. 527 ; initiative and referendum for cities, p. 597 ; commission government, p. 599 ; ballot law, p. 681 ; primary law, p. 694. Index IT^ Speaker, of House of Representatives, pp. 73 f., 269, 280 flf. ; in state legisla- ture, p. 533- Special legislation for cities, pp. 581 ff. Special sessions, of Congress, p. 249 ; of state legislature, p. 496. Speech, freedom of, p. 148. Spoils system, pp. 139 f., 668. Standards, bureau of, p. 259. State, federal department of, pp. 221, 31S ff- States, origins of, pp. 2 flf. ; establishment of, pp. 28 ff. See Constitution, State. Streets, municipal, pp. 616 ff. Strict construction, p. 255. Suffrage, colonial, pp. 8 ff . ; negro, pp. 70, 426 ; early laws on, p. 79 ; federal limitations, p. 163 ; present conditions of, p. 453 ; woman's, pp. 453 f., 464. Supreme Court. See Judiciary. Tammany Hall, origin and development of, pp. 135 ff. ; organization, pp. 661 ff. Tariff, protective, pp. 116, 117, 118, 123 ; bills, pp. 361, 390. Taxation. See Finance. Temperance legislation, p. 752. Tenement-house inspection, p. 615 ; law, p. 744. Tennessee, popular election of Senators, p. 242 ; suffrage, p. 455 ; amendment process, p. 458 ; term and salary of governor, p. 491 ; term and pay ofc legislators, p. 527 ; initiative and refer- endum for cities, p. 597 ; commission government in, p. 599; ballot law, p. 680 ; primary law, p. 694. Tenufe of Office Act (1820), p. 154; (1867), p. 193. Territories, government of, pp. 263, 417 ff. ; powers of Congress in, pp. 418 f. ; federal policy in, pp. 419 f . Texas, popular election of Senators, p. 242 ; admission to the Union, p. 443 ; amendment process, p. 458 ; term and salary of governor, p. 491 ; pay and term of legislators, p. 527 ; initiative and referendum for cities, 597 ; com- mission government in p. 599 ; ballot in, p. 681 ; primary law, p. 694 note. Third term doctrine, p. 184. Thirteenth Amendment, p. 208. Timber lands, pp. 403 f. Tonnage tax, p. 430. Torts, p. 558. Town government, pp. 649 ff. Town meeting, pp. 650 ff. Township government, pp. 649 ff. Treason, p. 149. Treasurer, state, pp. 483, 493, 500 ; county, p. 646. Treasury, federal department of, pp. 188, 210, 221, 373, 377 f. Treaties, power over, pp. 196 ff., 325 ff. ; negotiation of, pp. 327 ff. Trustee, township, p. 652. Trusts, federal regulation of, pp. 383 ff. ; state regulation of, pp. 724 ff. Tutuila, p. 425. Two-thirds rule, p. 172. Unanimous consent, in the House of Representatives, p. 281 ; calendar of, p. 290. Union, Albany plan of, p. 20. Unit rule, p. 171. Utah, suffrage, p. 453 ; amendment process, pp. 458 f . ; initiative and refer- endum, p. 463 ; salary and term of gov- ernor, p. 491 ; pay and term of legis- lators, p. 527 ; ballot law, pp. 678, 681. Vermont, bill of rights, p. 450 ; amend- ment process, p. 458 ; term and salary of governor, p. 491 ; gerrymander in, p. 521 ; character of legislature, p. 525 ; pay and term of legislators, p. 527 ; judiciary, p. 551 ; ballot law, p. 681. Veto, colonial, pp. 5 ; President's, pp. 201 ff. ; governor's, pp. 87, 498 ; mayor's, p. 591. Vice-President, nomination of, pp. 172, 180; salary of, p. 205. Village government, p. 653. Virginia, colonial government in, pp. 3—20 passim ; part in the Revolution, pp. 22-33 passim; formation of state government, p. 31 ; suffrage and quaUfications for office, pp. 80 ff. ; early election of governor, p. 88 ; constitutions of, p. 98 ; suffrage in, p. 457 ; amending process, pp. 458 ff. ; salary and term of governor, p. 491 ; pay and term of legislators, p. 527 ; local government, p. 653 ; ballot law, p. 680 ; primary law, p. 694 ; auditing committee, p. 713. Volunteers, army, p. 344. Vote, percentage, exercising right to, pp.467, 476; party, p. 487. 11^ Index Voters' League, Chicago, p. 704. War, powers of President and Congress, pp. 194 ff., 257 ; department, pp. 221, 347 ff. ; cost of, p. 355- War college, p. 350 note i. Ward politics, pp. 663 ff. Warfare, conduct of, p. 350. Washington (state), popular election of Senators, p. 242 ; suffrage, p. 453 ; amendment process, p. 459 ; term and salary of governor, p. 491 ; term and jjay of legislators, p. 527 ; initiative and referendum for cities, p. 597 ; ballot law, p. 681 ; primary law, p. 694. Water power, conservation and use of, pp. 413 f. Waterways, pp. 415 f. ; commission, p. 406. Waterworks, municipal, p. 620. Ways and means committee, in Congress, P- 363. Weights and measures, pp. 258, 259. West Point, p. 349. West Virgina, amendment process, pp. 458 f. ; term and salary of governor, p. 491 ; term and pay of legislators, p. i?7; uniformity in taxation, p. 708; ballot law, p. 682. Whigs, pp. 121, 131, 132. Wilson bill, p. 391. Wisconsin, popular election of Senators^* p. 242 ; forestry service, p. 413 ; suf- frage, pp. 453, 455; amendment process, pp. 458 f . ; salary and term of governor, p. 491 ; pay and term of legislators, p. 527 ; legislative output, p. 541 ; legislative reference work, p. 544 ; state revisor, p. 545 ; anti-lobby law, p. 544 ; commission government, p. 599 ; ballot law, p. 681 ; primary law, pp. 688 ff. ; state committee, p. 690 ; state platforms, p. 690 ; county com- mittee, p. 692 ; valuation of railways, p. 729- Woman suffrage, pp. 453 ff., 464 ; legal rights, p^89 ; labor of, regulated, P- 734- Working-class. See Labor. Wyoming, suffrage, pp. 453, 455 ; amend- ment process, pp. 458 f. ; salary and term of governor, p. 491 ; pay and term of legislators, p. 527 ; ballot law, p. 682. f^f J0U n ter RETURN TO the circulation desk of any University of California Library or to the NORTHERN REGIONAL LIBRARY FACILITY BIdg. 400, Richmond Field Station University of California Richmond, CA 94804-4698 ALL BOOKS MAY BE RECALLED AFTER 7 DAYS • 2-month loans may be renewed by calling (510)642-6753 • 1 -year loans may be recharged by bringing books to NRLF • Renewals and recharges may be made 4 days prior to due date DUE AS STAMPED BELOW MAR 8 2006 DD20 12M 1-05