Front Page Titles (by Subject) CHAPTER XLIII: the judiciary and civil order - Modern Democracies, vol. 2.
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
Also in the Library:
CHAPTER XLIII: the judiciary and civil order - Viscount James Bryce, Modern Democracies, vol. 2. 
Modern Democracies, (New York: Macmillan, 1921). 2 vols. Vol. 2.
Part of: Modern Democracies, 2 vols.
About Liberty Fund:
The text is in the public domain.
Fair use statement:
the judiciary and civil order
Two features in the American judicial system have a special interest for the student of institutions. One is the part, more important here than in any other country, which the Judiciary holds in the constitutional frame of government, its functions under the Constitution making it, in fact as in name, an independent branch of the government side by side with Executive and Legislature. The other is the different effects on the quality of the persons chosen to the Bench which are traceable to the different methods of choice, and to the longer or shorter tenure of office. Let us note the results of the way in which certain principles held to be democratic have been applied.
(a) The place assigned to the Judiciary by the Constitution has turned out to be greater than the founders foresaw, because no country had, in 1787, tried the experiment of setting up a Rigid Constitution to limit the powers of a legislature.
In the United States, as also every State in the Union, a supreme Instrument of Government, the Constitution, stands above ordinary laws, so that if the Legislature should pass any statute or resolution contravening the Constitution, that piece of legislation is null and void, because inconsistent with the higher law contained in the Constitution. Whether such inconsistency exists in any given case is a pure matter of law, to be determined by examining their respective terms, setting the two documents side by side so as to ascertain whether and in what respects the law of less authority passed by the Legislature transgresses the law of greater authority enacted by the people in the Constitution. It is a question of legal interpretation. The interpreting Court does not review matters of policy, i.e. the intrinsic wisdom or propriety either of the statute or of the Constitution itself, but merely decides whether the former conflicts with the latter. But as it is often hard to decide whether the general words used in a Constitution are, or are not, consistent with the terms of the statute which is alleged to transgress those general terms, there is often room for difference of opinion as to what the Constitution really means, i.e. what the people who enacted it meant by the words they have employed. This may seem to leave a discretion to the judges. It is hardly to be called a discretion, for the honest and competent judge tries only to ascertain the meaning and allows no personal bias to affect his decision, but many persons are ready to think that interpretation has been coloured by a Court's own views, and may therefore complain when it decides against what they desire. Thus the charge is made that the judges are legislating under the guise of enactment, and are, when they declare a statute invalid, overruling the will of the people as expressed by the legislature. The answer is that the will of the people is expressed in the Constitution also, and there expressed directly, not through representatives, so that the Constitution is a law of higher degree, the legislature having no more power than the Constitution allows to it. Only a Court can decide whether the two enactments in question conflict, for if that decision were left to the legislature, a Constitution would be useless, because the legislature would always decide in its own favour.1
Any one can see what importance this duty of interpretation gives to the American Courts. They become what may be called the living voice of the people, because they are in each State the guardians of that Constitution through which the people have spoken and are still speaking till such time as it pleases them to amend the fundamental instrument. The judges need to be not only able and learned, but also courageous, firm to resist any popular agitation, faithful to the constitution they are set to guard. This is true of State Judges, who have to interpret the constitutions of the several States in which they hold office. It is especially needed in the Federal Judges, who have to interpret the Federal constitution, declaring invalid any provision of a State constitution or of a State law, or of a Federal act passed by Congress, which transgresses that Constitution which is the supreme law of the land. Most of all is it needed in the Supreme Court of the United States, to which all questions affecting the Federal Constitution come ultimately either directly or by way of appeal from inferior Courts. Though that Court has been expounding and applying the Constitution for one hundred and thirty years, new questions raised by changing economic and social conditions are continually coming before it for determination. Its decisions as to what Congress may and may not do, and as to what the State legislatures may and may not do, have often an importance greater than any Act either of Congress or of a State legislature.
And now as to the judges and their tenure. The Federal judges, as already observed, are all appointed by the President with the consent of the Senate, and all hold office for life, though removable by impeachment. Those who constitute the Supreme Court, at present nine in number, always have been men of high character and distinguished ability. Those of inferior rank, Circuit and District judges, are sound lawyers, though seldom first-rate, for the salaries do not suffice to attract the most eminent men. Their integrity has been usually, though not always, above suspicion.
The State judges of every grade are elected by the citizens, except in seven States in which they are appointed by the Governor (with the approval of the Council or of the Legislature), and in four in which they are elected by the Legislature. Where the people elect, either by a State vote or in local areas by a local vote, the candidates are nominated by the political parties, like other elective officials, and usually stand on the same ticket with those officials as party candidates, though occasionally a non-party judiciary ticket is put forward by citizens dissatisfied with the party nominations. Such action, when taken, is apt to proceed from leading members of the local Bar. It seldom succeeds, and as a rule the best chance of securing good candidates is through the influence of the Bar upon those who control the party nominations.
The tenure of judicial office varies greatly. In two of the seven States where the Governor appoints, the judge sits for life, i.e. is removable only by impeachment or upon an address of both Houses of the legislature. In one of those where the legislature elects this is also the practice. In the remaining forty he is either elected or appointed for a term which varies from two years1 to twenty-one, eight or ten years being the average. Re-elections are frequent if the judge has satisfied the Bar of his competence and honour.
The salaries vary in proportion to the population and wealth of the State, $6000 (about £1200) being the average. Only in one State (New York), and only to some of its judges, is a salary so large as $17,500 (£3500) paid,2 even this sum being less than one-fifth of what some lawyers make by private practice.
No one will be surprised at what is, in most States, the combined effect on the quality of the Bench of these three factors — low salaries, short terms, and election by a popular vote controlled by party managers. The ablest lawyers seldom offer themselves: the men elected owe their election and look for their re-election to persons most of whom neither possess nor deserve the confidence of the better citizens.
We must, however, discriminate between different sets of States, for the differences are marked. Three classes may be roughly distinguished.
In some six or seven States, including those in which the Governor appoints, the judges of the highest Court, and as a rule the judges of the second rank also, are competent lawyers and upright men. Some would do credit to any court in any country.
In most of the other States (a majority of the total number) the justices of the highest Court are tolerably competent, even if inferior in learning and acumen to the ablest of the counsel who practise before them. Almost all are above suspicion of pecuniary corruption, though some are liable to be swayed by personal or political influences, for the judge cannot forget his re-election, and is tempted to be complaisant to those who can affect it. In these States the justices of the lower courts are of only mediocre capacity, but hardly ever venal.
Of the few remaining States it is hard to speak positively. A general description must needs be vague, because the only persons who have full opportunity for gauging the talents and honesty of the judges are the old practitioners in their courts who see them frequently and get to “know their ins and outs.” These practitioners are not always unbiassed, nor always willing to tell what they know. All that can safely be said is that in a certain small number of States the Bench as a whole is not trusted. In every court, be it of higher or lower rank, there are some good men, probably more good than bad. But no plaintiff or defendant knows what to expect. If he goes before one of the upright judges his case may be tried as fairly as it would be in Massachusetts or in Middlesex. On the other hand, fate may send him to a court where the rill of legal knowledge runs very thin, or to one where the stream of justice is polluted at its source. The use of the mandatory or prohibitory power of Court to issue injunctions, and of the power to commit for some alleged contempt of Court, is a fertile source of mischief. Injunctions obtained from a pliable judge are sometimes moves in a stock-gambling or in a political game, especially if the lawsuit has a party colour.
Taking the States as a whole, one may say that in most of them the Bench does not enjoy that respect which ought to be felt for the ministers of justice, and that in some few States enough is known to justify distrust. In these the judges of lower rank are not necessarily less scrupulous than are those of the highest Courts, but their scanty equipment of legal knowledge means that justice is not only uncertain, but also slow and costly, because the weaker the judge the greater the likelihood of delay and appeals, since American practitioners can always find some technical ground for a postponement or for trying to upset a decision.
All these things considered, it is surprising not that the defects described exist, but that they and the results they produce are not even worse. Worse they would be but for the sort of censorship which the Bar exercises, making all but the blackest sheep amenable to the public opinion of their State or neighbourhood.
How do these defects tell upon the daily administration of justice between man and man? As respects civil cases, seeing that the great majority of cases in contract or tort, or affecting property, come into State Courts, one hears fewer complaints than might have been expected. Evils of long standing are taken for granted: people have in many parts of the Union ceased to expect strong men except in the Federal Courts and those of a few States. Law is a costly luxury, but it is costly in all countries. In America its march is slow, but in many States the rules of procedure are antiquated and absurdly technical, and most of the codes of procedure adopted in some States have been ill-drawn and cumbrous. The intelligence of juries, the learning and ability of the Bar (legal education is probably nowhere so thorough as in the United States) help the weak judge over many a stile; while favouritism and corruption, at all times hard to prove, attract little notice unless the case affects some public interest. Nevertheless, even if things are less bad than the causes at work might have made them, clear it is that the incompetence of judges does in many States involve immense waste to litigants through appeals and other delays, and through the uncertainty into which the law is brought by decisions in inferior courts likely to be reversed on appeal.
Though the administration of civil justice leaves much to be desired, that of criminal justice is far worse. There are few States, perhaps only two or three outside New England — New Jersey is one — where it is either prompt or efficient. All through the rest of the country, South and West, trials are of inordinate length, and when the verdict has been given, months or years may elapse before the sentence can be carried into effect. Many offenders escape whom everybody knows to be guilty, and the deterrent effect of punishment is correspondingly reduced. From among the high authorities who have described and deplored this state of things it is sufficient to quote ex-President William H. Taft, who with exceptional experience, and a judgment universally respected, has pointed to “the lax enforcement of the criminal law” as one of the greatest evils from which the people of the United States suffer.1
Many causes have combined to produce this inefficiency. One is the extreme length of trials, especially trials for murder. First of all, there is the difficulty of getting a jury. In some States the jury lists are not fairly made up; but even where they are, the exercise of the right of challenging, on the ground that the person summoned is prejudiced or has already formed an opinion, is carried to extreme lengths. Sometimes hundreds of persons are rejected by one side or the other. There was a State prosecution in California a few years ago in which more than two months were spent in challenges before a jury was at last impanelled. Then there are the numerous intricacies of procedure and the highly technical rules of evidence. Every possible point is taken and argued on behalf of the prisoner if he has the means of retaining a skilful counsel. Objections taken to the judge's rulings on points of evidence, or to the terms of his charge, are reserved for subsequent argument before the full Court; and it is often a year or more before the Court deals with them. Distrust of authority and “faith in the people” have led nearly all States to limit strictly the functions of the judge. He may declare the law and sum up the evidence, but is not permitted to advise the jury as to the conclusions they ought to draw from the evidence, and he has generally less power than an English judge enjoys of allowing amendments where a purely technical mistake, not prejudicing the prisoner, has been committed.
Juries themselves are not always above suspicion. There are in many cities lawyers who have a reputation as “jury fixers"; and where unanimity is required by the law of the State, the process of fixing may be none too difficult.
If a verdict of guilty has been delivered, and if, months or possibly even years afterwards, all the legal points taken for the defence have been overruled by the Court, the prisoner has still good chances of escape. There is in the United States an almost morbid sympathy for some classes of criminals, a sentiment frequently affecting juries, which goes on increasing when a long period has elapsed since the crime was committed.1 A conviction for murder, especially if there was any emotional motive present, is usually followed by a torrent of appeals for clemency in the press, while the Governor is besieged with letters and petitions demanding a reprieve or commutation of the sentence. Hardly a voice is raised on behalf of the enforcement of the law. Sometimes the matter gets into politics, and a Governor's sense of duty may be weakened by those who urge that his leniency will win popular favour.
The sentimental weakness which is indulgent to crime because it pities the individual offender while forgetting the general interests of society is common in democratic peoples, and perhaps even commoner in America than in Italy or France. It now and then appears in Australia, When to all these causes we add the intellectual mediocrity of so many among the State judges, the frequent failures of criminal justice become intelligible; and one wonders not at the practical impunity accorded in many States to violent crime, but at the indifference of the public to so grave an evil. Recently the Bar Association of New York has bestirred itself to secure reforms; but there are States where the conditions are far worse than in New York, and where the frequency of homicide and the feebleness of the law in coping with it rouse little comment. This is especially the case in the Southern States where the habits of violence formed in the days of slavery have not died out, and where racial feeling is so strong that it is just as difficult in many districts to secure the punishment of a white who has injured or even killed a negro as it has been to obtain justice in a Turkish court for a Christian against a Muslim. The practice of lynching is the natural concomitant of a tardy or imperfect enforcement of the law. Though not rare in some parts of the West, and sometimes applied to white offenders, it is specially frequent in the Southern States, but not confined to them. In 1910, at the little town of Coatesville in Pennsylvania, a negro criminal lying in the town hospital awaiting trial was seized by a mob, dragged out of the town, and roasted alive, no one interfering. Several persons were indicted, but all escaped punishment. This is one of the many cases in which there was no excuse for a violent interference with the regular process of law, for the victim would undoubtedly have been found guilty and executed for murder.
It is not solely from the incompetence of State judges and the defects of criminal procedure that public order and the respect for law have been suffering. In some States the executive officials fail to arrest or bring to trial breakers of the peace. In some few, bands of ruffians have been allowed for months or years to perpetrate outrages on persons whose conduct displeased them; and this, in the case of the White Caps in Indiana and the Night Eiders in Kentucky, with practical impunity, the legislatures having provided no rural police. Train robberies by brigands resembling the dacoits of India have not quite ceased in parts of the West, though they no longer receive that indulgent admiration of their boldness which made Robin Hood a hero in mediaeval England. On the Pacific coast the Federal Government has found it hard to induce the State authorities to secure to immigrants from Eastern Asia the rights which they enjoy by treaty or by a sort of common law of nations. It is urged by way of extenuation, both for the prevalence of lynching and for other failures to enforce the law, that habits of disorder — being a legacy from the days when a wild country was being settled by bold and forceful frontiersmen, and men had to protect themselves by a rude justice — disappear slowly, that the regard for human life is still imperfect, that the custom of carrying pistols is widespread, and that the cost of policing thinly peopled regions is disproportionate to the frequency of the offences committed. Whatever weight may be allowed to these palliations, it remains true that in many parts of the United States facts do not warrant the claim that democratic government creates a law-abiding spirit among the citizens.
Why is there not a stronger sense of the harm done to the community by failures of justice and the consequent disregard of human life? Why does not a public opinion which is in most respects so humane and enlightened as is that of the American people, put forth its strength to stamp out the practice? As respects the defects of criminal procedure in general, it must be remembered, that an evil which has become familiar ceases to be shocking. The standard custom has set comes to be accepted: it is only the stranger who is amazed. Those good citizens in the States referred to who are shocked and desire a reform find it hard to know how or where to begin. The lower sort of lawyers, numerous in the legislatures, dislike reforms which would reduce their facilities for protracting legal proceedings to their own profit, and are apt to resist improvements in procedure. The ordinary legislator has not the knowledge to enable him to prepare or put through bills for the purpose. No body in a State is responsible for pushing reforms forward, for the Governor is not represented in the Legislature and the members are often jealous of his intervention. These explanations, the best that are supplied to the enquirer, leave him still surprised at the tolerance extended to the enemies of public peace and order.1
Some one may ask, “Since the inferiority of the State judges is a palpable and evident source of weakness, and one which could be removed by improving their position, why is that not done? Why not give better salaries with longer terms and drop popular election? Cheap justice may be dear in the long run.”
The answer to this question casts still further light on certain features of democratic government.
When the thirteen original States separated from England all of them left the appointment of judges in the hands of the State Governor, except two, where the legislature, and one, Georgia, where the people chose them. The system of appointments worked well: the judges were upright and respected, and it might have been expected that when new States made constitutions for themselves they would have followed the lead given by their predecessors. But between 1830 and 1850 a wave of democratic sentiment swept over the nation. The people, more than ever possessed or obsessed by the doctrine of popular sovereignty, came to think that they must be not only the ultimate source but the direct wielders of power. The subjection of all authority to theirs was to be expressed in the popular choice of every official for a term of office so short that he must never forget his masters, and with a salary too small to permit him to fancy himself better than his neighbours. The view has persisted, and still governs men's minds in most States. It is not argued that the plan secures good judges. Obedience to a so-called principle disregards or ignores that aspect of the matter. Being in Kentucky in 1890, attending a State Convention called to draft a new Constitution, I enquired whether no one would propose to restore the old method of appointment by the Governor, and was told that no such proposal would be listened to. It would be undemocratic. In California in 1909 when, after hearing severe comments upon most of the judges, I asked whether the citizens could not be induced to secure better men by larger salaries and longer terms, the answer was that the only change the citizens would make would be to shorten terms and reduce salaries still further in order to prevent the judges from feeling class sympathy with the rich and the business corporations. Whether appointment by the Executive would work as well in Western and Southern States, or for the matter of that in New York and Pennsylvania as it works in Massachusetts and New Jersey it would be hard to say, for in the last-named States a tradition exists which the Governor is obliged to live up to; whereas in States where the elective system has set a lower standard a Governor might prostitute his patronage. But it is an indefensible system.
The Civil Service
Something must be said, before we pass away from the working of Government, about the Cabinet and the permanent Civil Service, for both differ widely from the institutions which bear those names in Europe.
The Cabinet is not a ruling group, as in France, Britain, Italy, Spain, Canada, Australia. It consists (1920) of ten heads of administrative departments, who act under the directions of the President in their several branches of work, and whom it is his habit, though not his legal duty, to consult. He appoints them, subject to the approval of the Senate, which is scarcely ever refused, and dismisses them at pleasure. They are responsible only to him, not to Congress. As they cannot sit in it, and are not obliged to address the people, they need not possess oratorical gifts, so it might be supposed that they would be selected as experts specially competent for the business of their respective departments.
This, however, is not so, any more than it is in England and France. Political, i.e. electioneering, considerations prevail, and men are appointed chiefly for the sake of pleasing particular sections of the country or of recognizing services rendered in the last preceding campaign.1 Thus it may happen that the members of a newly formed Cabinet are most of them personally unknown, not only to the nation at large but to one another, some of them perhaps to the President himself. Though not necessarily men of outstanding ability, they have that American adaptiveness which enables them to get along almost as well as the average European Cabinet minister, and they are free from the parliamentary duties which distract him from his office work. As they may not have figured in politics before, so probably they drop out of politics when their four years' term ends, resuming their former profession or business.2
The Federal Civil Service comprises three classes of persons, (1) an enormous number of minor officials, such as custom-house officers and postmasters all over the country, (2) a considerable number of employees in the departments at Washington, including a large staff of scientific experts, and (3) diplomatic envoys and consuls. All these classes formerly held their posts at the pleasure of the President for the time being and vacated office when his term expired, unless he, having been re-elected, prolonged their service. The posts were party patronage, “Spoils of Office,” which went to the victors in a presidential campaign. This system produced not only an inefficient civil service, but many other incidental results strange in a popular government. These may be summarized as follows:
The Party Machine filled the offices with men who were often incompetent and always untrained. These men were changed whenever the Administration changed. Their allegiance was due primarily to the Organization, not to the nation. They were bound to contribute to its funds. Their first duty was to work for the party, and this duty they were compelled, on pain of dismissal, to discharge, so their efforts went to maintain the system by which the Machine paid its way and riveted its yoke upon the Government in Nation, State, and City. Public office was turned into a means of gain, not only to the Organization funds, but to its individual members through their opportunities of using their power for selfish ends. What went on in the National Government went on in the State Governments and in the city governments also, the same principles being applied everywhere by the same professional politicians, who indeed often reaped in the cities their largest harvests.
Through the operation of these causes, the Civil Service of the United States long remained not only inferior to that of the chief European countries, but far less efficient than the administration of great industrial and commercial undertakings, such as railways or department stores, in America itself. Specially trained men were not looked for, because they were not desired: the salaries offered would not have secured them, and the places were wanted for partisans. Of experience there was little, because when a man had come to know his work he was likely to be dismissed to make room for some adherent of the opposite party. Neither was there a prospect of promotion as a reward for zealous service, since the service most required by the political heads of department was that rendered not to the public but to the Democrats or the Republicans, as the case might be. Yet the system was maintained, not so much because Congress was parsimonious, but rather because Congressmen, valuing patronage as a means of strengthening their hold on their constituencies, refused to part with it. At last, however, the pressure of a more enlightened public opinion, roused by a small but earnest group of reformers, compelled Congress to yield, the fact that the then dominant party feared to lose an approaching election contributing to make the majority in both Houses willing to save some at least of its partisan officials from the impending displacement. So in 1883 Congress, with a few growls, passed an Act empowering the President to place certain classes of offices under Civil Service rules which created examinations and gave permanence of tenure. This power, sparingly used at first, has been so far exerted that more than a half of the total number in classes I. and II. aforesaid are now “taken out of politics.” This number includes most of the higher posts in the Washington departments, but the Assistant Secretaryships and some others of importance are still changed with the Administration as are also the foreign missions, and some of the consulates. The quality of the employees has improved as more and more have come in under the new system and been allowed to remain at the work they have learned. They are no longer compelled to toil for the party between elections as well as at elections; though some, especially among those who were appointed on the old system or still belong to the category of removables, may continue the practice. So, too, the custom by which the Organizations levied assessments, proportioned to the salaries, on the office-holders whose appointment party influence had secured, is now forbidden by law.
I have described what was one of the weakest points in the American government in order to show not merely how the interests of the people may be disregarded in a democracy, but also how in America the forces that make for righteousness can at last prevail. From the small beginnings of 1883 things have gone on improving, the professional politicians still snarling, but the reforms more and more carrying public opinion with them. The economic development of the nation, the swift diffusion and improvement of University instruction, the discoveries in physical science, the extension of State action into new fields, and a growing sense of the value of scientific methods in every kind of work, have combined to make the need for a competent Civil Service recognized.1 While in the older departments the quality of the persons employed is rising as the old spoilsmen are superannuated or die out, fresh lines of work have been created in which men of special competence are sought for. Some of the new scientific departments in Washington, such as that of the Geological Survey, and that which has charge of the national collections, are now staffed by a large number of accomplished men equal in their respective lines of study to any whom the Old World possesses. As a home of science, Washington is no whit behind London and Paris.
A similar change has come over the public service of the more advanced States. The State Civil Service is comparatively small, and less organized than that of the National Government, partly because there has not been a Cabinet, the (few) chief State officials being elected along with the Governor, and not subject to his direction. As the functions of State Governments expand under the pressure for social reforms and for a development of the agricultural, pastoral, and mineral resources of each State by the provision of more elaborate technical instruction, new offices are created, and a new class of trained officials grows up. In 1920 ten States had good Civil Service laws, and there is an appreciation of the resulting benefits. In some States, as notably in Wisconsin, the State University has discharged with eminent success the functions of a State Bureau for education in many branches of applied science.1 The leading State Universities of the West are a promising offspring of popular government, repaying its parental care by diffusing a wiser judgment and a more enlightened zeal for progress than is to be found elsewhere in the mass of citizens.
Local Government Rural and Municipal
From the States I turn to the working of Local Government in cities and in rural areas. To what has been already said2 regarding the latter only this remark need be added that the party system has been mischievous in some parts of the country, where local Rings put their adherents into local offices and perpetrate local jobs. In the rural areas one hears that officials, unwilling to offend persons of influence, are sometimes lax in enforcing the laws, and that defalcations are frequent; but as the revenues of townships and counties are mostly small, as their appropriation to public objects is prescribed by law, as the public works to be locally provided for are not costly, and the conduct of business tolerably well watched by the inhabitants who know the officials and usually get to hear of malpractices, the Rings and Bosses do no great mischief.1 The large sphere of independence allotted to local authorities has, at least in the Northern and Western States, been so useful in maintaining a sense of civic duty and a capacity for discharging it, that the advantages thus secured compensate for the harm which the party system has done by bringing national issues into the sphere of local administration.
The working of City government needs a fuller study, for the United States is the country in which municipal affairs have furnished the most striking illustrations of dangers incident to democracy. Those who have in our time sought to disparage it always base their charges on the record of city scandals during the last eighty years.
Americans themselves, however proud of the successes of their system as a whole, admit that here is to be found its one conspicuous failure. If Europeans knew what were and are the conditions under which the government of the cities has to be conducted, they would throw less of the blame on democratic principles, though they might well condemn the form in which those principles have been heedlessly applied. What were these conditions? They were unique in the world. In Europe the great cities have grown comparatively slowly — Berlin is the only exception — and their civic organizations, economic and social, have grown up with them, expanding as they expanded. In all but the largest there have been families in whom the mass of the people recognized a sort of leadership; neighbourhoods have had neighbourly feelings; local divisions, such as parishes and wards, have meant something; nearly all the inhabitants have belonged to the same race and spoken the same language.
American cities have grown with unprecedented rapidity.1 Men of the last generation who remembered New York as less than a mile in length and a half a mile in width, lived to see it fill the whole of an island fourteen miles long and spread out still further over an adjacent island and on the mainland. Chicago began as a tiny frontier port on Lake Michigan, and had after eighty years a population of two millions. This growth was due not only to industrial development and the building of railroads, but also to the flood of immigrants which began to pour in from about 1840 till 1910, most of whom could not speak English, very few of whom knew anything of the country or its institutions, and practically all of whom had no experience of the exercise of civic rights and no conception of civic duties. They formed a heterogeneous mass, at first chiefly of Irishmen and Germans, to whom were presently added Italians, Poles, Czechs, Slovaks, Croats, Serbs, Slovenes, Magyars, Russians, Greeks, Finns, Armenians, Syrians, and vast swarms of Russian and Polish Jews.2 This crowd knew as little of the men into the midst of whom they came as they did of the city government. But they found themselves, within a few weeks or months, turned into citizens and entitled to vote at elections — City, State, and Federal. Each political party wanted voters, and bestirred itself to rope in the newcomers and enrol them as adherents. With no social ties in their new home, living in quarters removed from the better-housed native inhabitants, having no notions about voting or for whom they ought to vote, they were an easy and indeed a willing prey, pleased to find themselves of some consequence in their humble surroundings, glad to make acquaintance with the lower sort of professional politicians in the liquor saloons, and knowing no other public opinion than that which pervaded those resorts.3
While the volume of ignorant voters was thus swelling, the cities grew faster than ever in wealth, and new work was being thrust upon their governments as docks had to be improved, public buildings erected, street railways constructed, drainage, paving, and other city needs cared for on a large scale. Taxation rose almost as fast as did wealth, lucrative contracts were being placed, immense sums disbursed. All this had to be done under the pressure which the quick growth of population and expansion of trade involved. The richer people could not spare time from money-making to attend to these things. Rarely did one of them think of standing for any city office, or entering a City Council, so the management of affairs was left to a set of persons with whom educated men had no social relations and whose action they were too busy to watch. Such men, moreover, or at least the public spirited among them, were in the years from 1835 to 1865 so keenly interested in the great national issues that city politics were neglected, or regarded only in so far as the victory of one or other political party affected its prospects in congressional or presidential elections. Good citizens, themselves upright and disinterested, turned a blind eye to the offences of those who professed to be working for the party whose success seemed supremely important. Not only were city elections fought on national lines, but party spirit gripped city politics in another way also. The Organization which controlled a city because it could deliver a heavy vote in State elections influenced the State Legislature, and probably the State Governor also, and this meant that the heads of the organization could procure from the State legislature the kind of municipal legislation which they desired in order to fasten their yoke more tightly on the city and carry through whatever schemes promised benefit to themselves. This habit of interference with the structure and working of city governments, instead of leaving them to take their regular course under the general statutes, entangled the city in a web of secret and sordid intrigues.
These then were the conditions:
A swiftly growing population of ignorant citizens, paying no city taxes, having no interest in good administration, tools in the hands of party leaders.
A rapid increase in the wealth of individuals, as also in the revenues of the city and in its expenditure on a multiplicity of public services.
A neglect of city affairs by the well-to-do and educated citizens, except in so far as the success of their party in the city promised to strengthen it in the nation.
An inveterate habit of voting the national party ticket, irrespective of the particular State or City issues involved, and practically irrespective of the personal merits of candidates.
The party managers whose methods have been described in a preceding chapter were not slow to profit by such a situation. Every city had a government framed not with a view to efficiency and economy but on political lines similar to those of the State Governments. The differences between one “City Charter” (as the frame of government is called) and another were numerous, but the general character of these instruments was the same, and so were the economic and social phenomena which the cities presented. There was a Legislature, sometimes of one, sometimes of two Councils, composed of persons most of whom belonged to the half-educated class and were unknown to the respectable citizens. There was a mayor and a number of other officials, each directly elected by the people for short terms; and there were judges elected also for short terms with a wide civil as well as criminal jurisdiction.1
The process by which a little group of selfish professional politicians gained in each city, first the control of the party organization and then through it the control of the city, can seldom be traced, for the Ringsters conspired in secret, and the public records give only the outer aspect of their actions. Usually a few of the wiliest and most plausible who became prominent in the primaries were elected to the managing committees. There, getting to know one another, and having a common aim, they found it profitable to work together, filled the committees with dependants on whose obedience they could rely, and so grew to be a small irresponsible junta, who kept power because they proved themselves fit to use it. Sometimes they formed a sort of ruling Ring, always small. But in this Ring there was generally some one conspicuous either by his craft or by the popular talents which disposed the rank and file to follow him. If he had the gifts of leadership, boldness, self-confidence and the capacity for quick decision, he became the Boss. Democracies talk of Equality, but Efficiency is after all the first requisite in all governments, be they governments of a nation or of a faction; so in the midst of equality oligarchies and autocracies rise by a law of nature. Where the control of one strong, swift will makes for success, that will brings its possessor to the top. Thus the party organization, based on democratic principles, and respecting those principles in its rules, fell under what may be called an autocratic oligarchy with the Boss for its head, while the rest of the Ring formed his Cabinet council. So highly do American business men value efficiency, that they are more disposed to vest wide powers in a single hand than are the English, witness the concentration of the management of railroads in a President instead of a Board of Directors, and the far larger authority given to the President of a University than that allowed to the head either of any British university or of a college at Oxford or Cambridge. Thus, despite the sacred principle of equality, Bossdom prevailed in the party organizations; and in New York, for instance, the dynasty of Bosses who during eighty years have reigned purely by the gifts of political leadership may be compared with that line of monarchs, neither hereditary nor elective, but most of them rising by their military talents, which ruled the Roman Empire from Nero down to Constantine.
The party organizations laid hold of the city governments. They managed the Primaries and Conventions, nominated the party candidates, looked after the elections, resorting, when necessary, to personation, repeating, and other frauds, and adding to these, if their party controlled the officials in charge of the elections, intimidation at the polls, ballot stuffing and false counting. Most of their candidates were so obscure as to be unknown to the majority of the voters, who were thus obliged to vote the party ticket. Thus a Ring might by the use of those ignorant masses who constituted its voting stock, fill the offices with its creatures, the chief among whom found many ways of making illicit gains out of contracts or the sale of franchises (such as the laying of street railways) or by levying blackmail on firms who desired permission to transgress the law. Sometimes these practices went long unchecked, for the system grew up silently, unnoticed by good citizens who were thinking of the Slavery question or the Tariff. It was hard to fix responsibility upon offenders. Who could say which of the members of the Councils were the most guilty parties, who could examine records and documents in the custody of dishonest officials, who could hope much from legal proceedings likely to come before a judge who owed his election to the party dominating the city? While ward politicians made their petty gains in the lower strata of city life, and the ward leader directed his voting regiment like a colonel, members of the Ring installed themselves in offices where money could be scooped in by large operations; and the chiefs of the party in the State, seldom soiling their own fingers, winked at the methods of the professionals and profited by the voting power placed at their disposal.
These things, which need description because they have been used to discredit democracy, went on in practically all the great and most of the smaller cities, being generally worse in proportion to the population and the wealth of each. I take New York as a sample, because the largest, and because the facts of its case, though they have drawn the attention of the world, are little understood outside America.
In New York there was founded in 1789 a social and charitable club which after 1805 described itself as the Tammany Society, the name being taken from an Indian Sachem called Tammanend. It soon acquired a political character, and in 1822, having then thrown out tentacles all over the city, put its government on a representative basis, the General Committee being composed of delegates elected at meetings of the enrolled (Democratic) party voters. Its members were at first native Americans, many of them men of good social standing; but after 1850 the rank and file came more and more to consist of immigrants from Europe, while leadership passed to adventurers of a low type, native and foreign. Since then Tammany Hall has included a great mass of the new citizens — Irishmen, Germans, Jews, Italians, and Slavs. It came to be practically supreme in the Democratic party in the city, as well as the mainstay of that party in New York State, being therewith also a power in the National Democratic Convention, since the vote of New York State often turns the scale in presidential elections. In 1863 a man named William Marcy Tweed, who had failed in business as a chairmaker, a jovial, boisterous, swaggering fellow of vulgar tastes and scanty education, became Chairman of the General Committee, and therewith virtual ruler of the city, for (manhood suffrage having been introduced in 1842) the Tammany vote was omnipotent. He and his three leading associates who formed a ruling group called the Eing “had at their disposal,” wrote Mr. S. J. Tilden a few years later, “the whole local Government machinery, with its expenditure and patronage and its employment of at least 12,000 persons, besides its possession of the police, its influence on the Judiciary, its control of inspectors and canvassers of the elections.” This last-mentioned power was used to manipulate the taking and counting of votes on a gigantic scale, while three unscrupulous lawyers, creatures or confederates of the Ring, were placed on the City Bench to facilitate its operations. The press was largely muzzled by lavish payments made to it for advertisements, and some of the minor journals were subsidized. Confident in their strength, the “Boss of the Hall” and his three associates began to rob right and left. In thirty-two months they raised the city debt by $81,000,000 (£16,200,000), more than twice the figure at which the debt had stood before. This was done chiefly by means of payments for public works which were divided among the confederated Ringsters, with practically nothing to show for the expenditure.
A trifling quarrel between some of the accomplices led to the discovery of these frauds, and an uprising of the “better element” among the citizens of both parties (1871) drove the thieves out of power and sent to prison two of them, as well as two of the three corrupt judges. But what happened thereafter? Within six years Tammany Hall was again in power under another Boss. Its voters did not care how much the city was robbed, for few of them paid taxes, and many regretted Tweed as a good fellow. The “better element,” having once asserted itself, relapsed into apathy, and was again immersed in business excitements and social enjoyments. Tammany, however, was thereafter less audacious, and has had to fight hard for its power.
The history of New York since 1876 has been a chequered one. When the good citizens have exerted themselves and effected a fusion of the reformers with the Machine of the Republican party they have been able to defeat Tammany.1 When the Republicans ran a party candidate of their own, Tammany triumphed. Now and then, however, it put forward respectable candidates for the mayoralty. The new Frame of Government introduced in 1902 cut at the roots of some mischiefs. Election frauds are now almost gone, nor can the treasury be robbed with impunity, but some branches of administration, including the police department, remain unsatisfactory.
What has been said of New York may, as respects the essential features of municipal misrule, be said of every great city, though of course with endless local variations. San Francisco, with its mixed and changeful population, has been conspicuous for violent oscillations. At the end of last century it was ruled by a formidable Boss, a blind man, but of remarkable gifts for organization, who had at his command the votes and the partisan work of the employees of the Fire Department. After his fall — he fled when indicted for peculation — the city fell for a time under the dominion of a Ring chiefly composed of labour leaders. Some of these leaders were convicted of corruption, and a period of better government followed. Space fails me to speak of Pittsburg and Chicago, St. Louis and New Orleans and Cincinnati. The phenomena are everywhere substantially the same, as are their causes: the Rings are similar: the reformers fight and win and flag and fail and prepare to fight again. The combatants come and go, but the combat is always the same. As used to be said of revolutions in France, “plus cela change, plus c'est la même chose.” The case of Philadelphia was peculiarly instructive, for comparatively few of its inhabitants are foreign, and the poorer classes are better off than in most cities, the number who own their houses being so large that it is called “The City of Homes.” In it maladministration and corruption have been flagrant: and though the “good citizens” have frequently risen against and overthrown their oppressors, every success has been followed by a collapse, and a new Ring has climbed into power. A great victory was won in 1912, yet in a few years its results seemed likely to be lost. Misgovernment has, however, been not quite so bad since 1881 as it was before the defeat then inflicted on the Gas Ring, and in 1920 the sky had once more brightened under a new charter and a capable Mayor.1
Be it noted that in the cities generally there has been nothing to choose between the political parties, neither of whom has been better or worse than the other. The Tammany Ring is Democratic. The Philadelphia Ring has always been Republican, and has held its power mainly because the wealthy manufacturers have so valued the maintenance of the protective tariff as to be ready to support in their city the party which contributed to make Pennsylvania a safe Republican State. The moral which the student of democracy may ponder is well conveyed in words which the most eminent Philadelphian of our time (Mr. Henry C. Lea, the distinguished historian) wrote to me in 1888. They are still applicable:
“In existing social conditions it would be difficult to conceive of a large community of which it would appear more safe to predicate judicious self-government than ours. Nowhere is there to be found a more general diffusion of property or a higher average standard of comfort and intelligence, nowhere so large a proportion of landowners bearing the burden of direct taxation and personally interested in the wise and honest expenditure of the public revenue. In these respects it is almost an ideal community in which to work out practical results from democratic theories. The failure is not attributable to manhood suffrage, for in my reform labours I have found that the most dangerous enemies of reform have not been the ignorant and poor, but men of wealth, of high social position and character, who had nothing personally to gain from political corruption, but showed themselves as unfitted to exercise the suffrage as the lowest proletariat, by allowing their partisanship to enlist them in the support of candidates notoriously bad who happened by control of party machinery to obtain the ‘regular’ nominations.
“The spirit of party blinds many, while still more are governed by the mental inertia which renders independent thought the most laborious of tasks, and the selfish indolence which shrinks from interrupting the daily routine of avocations. In a constituency so enormous the most prolonged and strenuous effort is required to oppose the ponderous and complicated machinery of party organization, which is always in the hands of professional politicians who obtain control over it by a process of natural selection, and are thus perfectly fitted for the work. Recalcitrants are raw militia who take the field with overwhelming odds against them both in numbers and discipline. Even though they may gain an occasional victory their enthusiasm exhausts itself, while the ‘regular’ is always on duty and knows, with Philip the Second, that time and he can overcome any other two.”
Among the consequences of municipal misgovernment two stand out conspicuous. The progressive and philanthropic spirit, now active in America, has been demanding an extension of the functions of city authorities. Better provision is needed for the health of the masses, for their comfort, for their delectation by music and by art exhibitions, for a still further extension of public parks and all sorts of city amenities. The so-called “public utilities,” such as street railroads, gas, and electric lighting, might be taken out of the hands of grasping private companies, who are in league with the Rings, and be run more cheaply or made to yield a revenue for city purposes. But there is an obvious objection. Can the Machine politicans who control the cities be trusted with functions they are sure to abuse? Must not municipal reform precede attempts at municipal socialism?
The other palpable consequence of the recurring palpable scandals in city government has been to lower the standard of political morality. Sins frequent and patent which go unpunished cease to excite reprobation. The “Doodling alderman,” and the aspiring young lawyer who, coming from a pious home, succumbs to temptation and becomes a “grafter,” are familiar figures on the American stage and arouse more amusement than blame. Since nobody expects virtue in a city politician, nobody is disappointed when he fails to show it, and many live down to the level expected from them.
The warning which the phenomena of American cities teach is essentially the same everywhere. The so-called “good citizens” are scarcely less responsible than the bad citizens for the maladministration and corruption of which they complain. A democratic frame of government assumes, and must assume, that at least a majority of the ruling people will know and discharge their duty. The richer and larger a community the more will birds of prey flock to it. But though vigilance is all the more needed, experience shows that the larger the community, the more apt is the citizen to neglect his duties, because there are so many others equally bound to discharge them. The habit of letting base politicians make their gains out of the cities was formed before people realized how great those gains might become. With indolence there went a good-natured tolerance, commoner in America than in Europe, which perpetuates the evils it endures. Thus was city democracy turned into a sordid city oligarchy.
Another reflection is suggested by the history of these cities. Without asking what Democracy meant to those who founded it in Athens, to Pericles who guided or to Aristotle who described it there, or to Rousseau whose theories gave it a new birth in the modern world, let us consider what a City meant to the inhabitants of an Italian or German town in the Middle Ages, or to those of an English borough in the seventeenth, or those of an American borough in the first half-century of the United States. It meant a community organized for common aims by men who had a long experience of rights they claimed and duties they were expected to discharge, a community held together not only by traditions but also by a sort of social cement, one in which, even after the trade guilds had become obsolete, men had a personal knowledge of one another, where the humbler classes respected the prominent figures to whom leadership belonged, sometimes by wealth, sometimes by intelligence and superior talents and education, or by the eminence which office, worthily discharged, secures. In such a community men had grounds for trusting one another. Workmen knew their employers, and employers felt some responsibility for their workmen. The churches put the rich and the poor in some sort of touch with one another, and helped to create a sense of human fellowship. Those were real Communities, because men had something tangible in common. When citizens had to choose a man for an office, they had grounds for preferring A to B or C. Merit (or the semblance of it) told: there was a record behind the candidate from which the likelihood of performance could be conjectured.
But what is a modern American city? A huge space of ground covered with houses, two or three square miles appropriated by the richer sort, fifteen or twenty, stretching out into suburbs, filled with the dwellings of the poorer. More than half of these lower strata had lately come from their far-off Old World homes, leaving their former social ties behind them, and having not yet formed new ties in the strange land whose language many among them could not speak, and of whose institutions they knew nothing. They were not members of a Community, but an aggregation of human atoms, like grains of desert sand which the wind sweeps hither and thither. They got work, but they knew nothing of the man they worked for: probably he was the manager of a great corporate company. They began to read the newspapers, but the only part of the news that they could follow was the record of crimes and accidents with which the meaner newspapers are filled. Naturalization made American citizens of them, and they were pleased, for it seemed to improve their position. But when election day came, and their fellow-workmen who had lived longer in the city told them they could vote, they did not know for what to vote, or indeed what voting means, any more than they had done in Lithuania.
Not long, however, are they left thus unguided. The ward politician appears, tells the newly fledged citizen to join his party, enrols him, takes him to the poll, gives him a ticket, shows him how to mark his ballot-paper. He casts his vote accordingly, and it counts for as much as does that of the best instructed among his fellow-voters. Having no other advice, no interest in good government, or in anything except protection from the consequences of any breach of law he might, perhaps unwittingly, commit, knowing nothing of the candidates whose names are on the ticket, he takes such advice as is proffered, that of the Party. He is now part of the “voting stock” by means of which Tammany or some other such organization fills the city offices, counting this stock by many thousands. The facts being what they are, and human nature being what it is in the wily party manager and in the passive voter, could any other result have been expected than that which the American cities present? Democracy cannot be fairly judged under such conditions. Yet the voters were the People. Statesmen continued to flatter them, and to repeat that the People can do no wrong. Carlyle would have observed that Nature takes her revenge on those who live by shams.
What lessons are to be drawn from these scandals — the thefts from the city treasury, the jobbing of contracts, the sale of public franchises, the malign influence of those whom President Roosevelt used to call “malefactors of great wealth,” the granting of immunity, for payment, to lawbreakers, the complicity of the police with one of the most odious classes of criminals, and all the evils of fraud or violence that were needed to perpetuate the rule of Rings and Bosses?
They teach nothing that was not known before, though never before on so grand a scale.
A mass of ignorant voters, untrained in self-government. becomes the natural prey of unscrupulous leaders.
A government controlled by those who have no interest in economy will not be economical. It was said by them of old time, “No taxation without representation.” Here was representation without taxation.
Where men practically irresponsible dominate those nominally responsible, responsibility disappears.
The members of a self-governing community need to have some social bonds of union, and if the men whom talent and character mark out for leadership stand aloof, their places will be filled by the less worthy.
See as to the Swiss view of this subject Vol. I. Chap. XXVIII.
In England a judge of the High Court receives £5000, nearly $25,000.
Popular Government, its Essence, its Permanence, and its Perils, 1913.
Says Mr. Taft (p. 225 of book above referred to): “The lax administration of the criminal law is due in a marked degree to the prevalence of maudlin sentiment among the people and the alluring limelight in which the criminal walks if only he can give a little sensational colouring to his mean or sordid offence.”
The growing demand for judicial reforms in the States recently led to the formation of a body called the American Judicature Society, supported by many leading judges, lawyers, and professors of law. It advocates a simplification of legal procedure, longer tenure and better salaries for judges, and some method of selection more satisfactory than popular election has proved to be. Progress has been made in improving the municipal court systems, and it is believed that public opinion on the subject is being by degrees educated.
The Attorney-General is of course always, and the Secretary of State is frequently, a lawyer. Now and then a President may select a personal friend for the sake of having his constant counsel.
The total volume of ability to be found in a Cabinet varies markedly according to the capacity a President shows for selecting able men. When a Cabinet is poor in talent, not only does administration suffer but fewer men of force and talent have the chance of becoming known to the nation, and the choice which a party has to make of a person to be put forward as its candidate for the Presidency is accordingly more restricted. In the early days this was less seen. Jefferson and John Adams had sat in Washington's Cabinets, Madison had been Jefferson's Secretary of State, and Monroe Madison's, and J. Q. Adams Monroe's, and Van Buren Jackson's.
In 1914 there were more than 482,000 employees under the National Government, of whom 292,000 were in the Classified Civil Service, under the control of the Civil Service Commission. An interesting address to the National Service Reform Association, delivered in 1919 by Mr. Richard H. Dana, estimates the annual gain in efficiency as amounting to $30,000,000 per annum.
See as to Wisconsin the book of Mr. Charles M'Carthy entitled, The Wisconsin Idea.
See Chapter XXXV.
County offices seem in many States to be too numerous and their functions not well defined. See as to the defects of County government especially in Middle Western States an interesting address by Mr. Walker D. Hines to the Chamber of Commerce at Topeka, delivered March 30, 1917.
The nearest parallels to this growth may be found in Buenos Aires and in some of the cities of Siberia, such as Novo Nikolaievsk.
The vast majority of Swedes and Norwegians did not remain in the cities, but went to take up farms, chiefly in the north-west.
This describes conditions as they were before the Prohibition Amendment to the Constitution had been passed.
A high authority, Dr. F. J. Goodnow, President of Johns Hopkins University, says: “By not providing for either property or educational qualification, and by requiring merely a short term of residence, the United States city election laws thus generally bring it about that the number of voters at city elections is from eight to fifty per cent greater than elsewhere. Finally, the fact that these laws do not accord the vote to non-resident tax-payers prevents the exercise of a possible conservative influence on city elections.
Why, it may well be asked, did not the Republican party organization always work with the Reformers against Tammany? Because the Republican Bosses wished to keep their own Machine in good working order by running only their own candidates, because many of their wealthier supporters were too indifferent to turn out to vote, perhaps also because some of their party managers had a secret professional sympathy with the Democratic Ringster opponents. Pure government is distasteful to Machine men in both parties alike, and party antagonisms do not prevent private co-operation, according to the dictum, “There's no politics in politics.”
The charter of 1919 is described as a considerable improvement on any preceding scheme of city government, and likely to deliver Philadelphia from the control of contractors. In a short sketch of its provisions Mr. Penrose, U.S. Senator from Pennsylvania, and long a prominent leader in his party, remarks, “Municipal government increases in efficiency in the exact ratio in which it is divorced from partisan politics; party efficiency and capacity for public services increases in the ratio in which it disentangles itself from municipal politics.”