The Online Library of Liberty

A project of Liberty Fund, Inc.

• Introduction
• Publisher’s Note
• Preface to the First Edition
• Preface to the Edition of 1910
• Note to Edition of 1914
• List of Presidents
• Dates of Some Remarkable Events In the History of the North American Colonies and United States
• Area, Population, and Date of Admission of the States
• Chapter 1: Introductory
• Part I: The National Government
• Chapter 2: The Nation and the States
• Chapter 3: The Origin of the Constitution
• Chapter 4: Nature of the Federal Government
• Chapter 5: The President
• Chapter 6: Presidential Powers and Duties
• Chapter 7: Observations On the Presidency
• Chapter 8: Why Great Men Are Not Chosen Presidents
• Chapter 9: The Cabinet
• Chapter 10: The Senate
• Chapter 11: The Senate As an Executive and Judicial Body
• Chapter 12: The Senate: Its Working and Influence
• Chapter 13: The House of Representatives
• Chapter 14: The House At Work
• Chapter 15: The Committees of Congress
• Chapter 16: Congressional Legislation
• Chapter 17: Congressional Finance
• Chapter 18: The Relations of the Two Houses
• Chapter 19: General Observations On Congress
• Chapter 20: The Relations of Congress to the President 1
• Chapter 21: The Legislature and the Executive
• Chapter 22: The Federal Courts
• Chapter 23: The Courts and the Constitution
• Chapter 24: The Working of the Courts
• Chapter 25: Comparison of the American and European Systems
• Chapter 26: General Observations On the Frame of National Government
• Chapter 27: The Federal System
• Chapter 28: Working Relations of the National and the State Governments
• Chapter 29: Criticism of the Federal System
• Chapter 30: Merits of the Federal System
• Chapter 31: Growth and Development of the Constitution
• Chapter 32: The Amendment of the Constitution
• Chapter 33: The Interpretation of the Constitution
• Chapter 34: The Development of the Constitution By Usage
• Chapter 35: The Results of Constitutional Development
• Part II: The State Governments
• Chapter 36: Nature of the American State
• Chapter 37: State Constitutions
• Chapter 38: The Development of State Constitutions
• Chapter 39: Direct Legislation By the People
• Chapter 40: State Governments: the Legislature
• Chapter 41: The State Executive
• Chapter 42: The State Judiciary
• Chapter 43: State Finance
• Chapter 44: The Working of State Governments
• Chapter 45: Remedies For the Faults of State Governments
• Chapter 46: State Politics
• Chapter 47: The Territories
• Chapter 48: Local Government
• Chapter 49: Observations On Local Government
• Chapter 50: The Government of Cities
• Chapter 51: The Working of City Governments
• Chapter 52: An American View of Municipal Government In the United States
• Appendix: Note to Chapter 3: On Constitutional Conventions
• Note to Chapter 4: What the Federal Constitution Owes to the Constitutions of the Several States
• Note to Chapter 10: Extracts From the Rules of the Senate
• Note (a) to Chapter 16: Private Bills
• Note (b) to Chapter 16: The Lobby
• Note (a) to Chapter 30: Constitution of the Confederate States, 1861–65
• Note (b) to Chapter 30: The Federal Constitution of Canada
• Note to Chapter 33: The Dartmouth College Case
• Articles of Confederation, 1781–88
• Constitution of the United States
• Extracts From the Constitution of the State of Oklahoma 1

Part II

The State Governments

chapter 36

Nature of the American State

From the study of the national government, we may go on to examine that of the several states which make up the Union. This is the part of the American political system which has received least attention both from foreign and from native writers. Finding in the federal president, cabinet, and Congress a government superficially resembling those of their own countries, and seeing the federal authority alone active in international relations, Europeans have forgotten and practically ignored the state governments to which their own experience supplies few parallels, and on whose workings the intelligence published on their side of the ocean seldom throws light. Even the European traveller who makes the six or seven days’ run across the American continent, from New York or Philadelphia via Chicago to San Francisco, though he passes in his journey of three thousand miles over the territories of eleven self-governing commonwealths, hardly notices the fact. He uses one coinage and one post office; he is stopped by no customhouses; he sees no officials in a state livery; he thinks no more of the difference of jurisdictions than the passenger from London to Liverpool does of the counties traversed by the line of the Northwestern Railway. So, too, our best informed English writers on the science of politics, while discussing copiously the relation of the American states to the central authority, have failed to draw on the fund of instruction which lies in the study of state governments themselves. Mill in his Representative Government scarcely refers to them. Mr. Freeman in his learned essays, Sir H. Maine in his ingenious book on popular government, pass by phenomena which would have admirably illustrated some of their reasonings.

American publicists, on the other hand, have been too much absorbed in the study of the federal system to bestow much thought on the state governments. The latter seem to them the most simple and obvious things in the world, while the former, which has been the battleground of their political parties for a century, excites the keenest interest, and is indeed regarded as a sort of mystery, on which all the resources of their metaphysical subtlety and legal knowledge may well be expended. Thus while the dogmas of state sovereignty and states’ rights, made practical by the great struggle over slavery, were discussed with extraordinary zeal and acumen by three generations of men, the character, power, and working of the states as separate self-governing bodies have received little attention or illustration. Yet they are full of interest; and he who would understand the changes that have passed on the American democracy will find far more instruction in a study of the state governments than of the federal Constitution. The materials for this study are unfortunately, at least to a European, either inaccessible or unmanageable. They consist of constitutions, statutes, the records of the debates and proceedings of constitutional conventions and legislatures, the reports of officials and commissioners, together with that continuous transcript and picture of current public opinion which the files of newspapers supply. Of these sources only one, the constitutions, is practically available to an European writer. To be able to use the rest one must go to the state and devote one’s self there to these original authorities, correcting them, where possible, by the recollections of living men. It might have been expected that in most of the states, or at least of the older states, persons would have been found to write political, and not merely antiquarian or genealogical, state histories, describing the political career of their respective communities, and discussing the questions on which political contests have turned. But this was not (except in a very few cases) attempted till near the end of the nineteenth century, so that the European enquirer found a scanty measure of the assistance which he would naturally have expected from previous labourers in this field. I call it a field: it was till lately rather a primeval forest, where the vegetation is rank, and through which even now but few trails have been cut. The new historical school which is growing up at the leading American universities, and has already investigated the colonial period with so much thoroughness, and has now begun to grapple with this task;1 in the meantime, the difficulties I have stated must be my excuse for treating this branch of my subject with a brevity out of proportion to its real interest and importance. It is better to endeavour to bring into relief a few leading features than to attempt a detailed account which would run to inordinate length.

The American state is a peculiar organism, unlike anything in modern Europe, or in the ancient world. The only parallel is to be found in the cantons of Switzerland, the Switzerland of our own day, for until 1815, if one ought not rather to say until 1848, Switzerland was not so much a nation or a state as a league of neighbour commonwealths. But Europe so persistently ignores the history of Switzerland, that most instructive patent museum of politics, apparently only because she is a small country, and because people go there to see lakes and to climb mountains, that I should perplex instead of enlightening the reader by attempting to illustrate American from Swiss phenomena.

Let me attempt to sketch the American states as separate political entities, forgetting for the moment that they are also parts of a federation.

The admission, under a statute of 1910, of two new states2 brought the number of states in the American Union up to forty-eight, varying in size from Texas, with an area of 265,780 square miles, to Rhode Island, with an area of 1,250 square miles; and in population from New York, with over 9,000,000 inhabitants, to Nevada, with 81,000. That is to say, the largest state is much larger than either France or the Germanic Empire; the most populous much more populous than Sweden, or Portugal, or Denmark, while the smallest is smaller than Warwickshire or Corsica, and the least populous less populous than the city of York, or the town of Reading in Berks. Considering not only these differences of size, but the differences in the density of population (which in Nevada is .7 and in Wyoming 1.5 to the square mile, while in Rhode Island it is 508.5 and in Massachusetts 418.8 to the square mile); in its character3 (in South Carolina the blacks are 835,843 against 679,161 whites, in Mississippi 1,009,487 against 786,111 whites); in its birthplace (in North Carolina the foreign-born persons are less than 1/400 of the population, in California, nearly one-third, in North Dakota more than one-half); in the occupations of the people, in the amount of accumulated wealth, in the proportion of educated persons to the rest of the community—it is plain that immense differences might be looked for between the aspects of politics and conduct of government in one state and in another.

Be it also remembered that the older colonies had different historical origins. Virginia and North Carolina were unlike Massachusetts and Connecticut; New York, Pennsylvania, and Maryland different from both; while in recent times the stream of European immigration has filled some states with Irishmen, others with Germans or Italians, others with Scandinavians or Poles, and has left most of the Southern states wholly untouched.

Nevertheless, the form of government is in its main outlines, and to a large extent even in its actual working, the same in all these forty-eight republics, and the differences, instructive as they are, relate to the points of secondary consequence.

The states fall naturally into five groups:

• The New England states—Massachusetts, Connecticut, Rhode Island, New Hampshire, Vermont, Maine
• The Middle states—New York, New Jersey, Pennsylvania, Delaware,4 Maryland, Ohio, Indiana5
• The Southern, or old slave states—Virginia, West Virginia (separated from Virginia during the war), North Carolina, South Carolina, Georgia, Alabama, Florida, Kentucky, Tennessee, Mississippi, Louisiana, Arkansas, Missouri, Texas, Oklahoma, New Mexico (these two last, however, formed long after the extinction of slavery)
• The Northwestern states—Michigan, Illinois, Wisconsin, Minnesota, Iowa, Nebraska, Kansas, Colorado, North Dakota, South Dakota, Wyoming, Montana, Idaho
• The Pacific states—California, Nevada, Arizona, Utah, Oregon, Washington

Each of these groups has something distinctive in the character of its inhabitants, which is reflected, though more faintly now than formerly, in the character of its government and politics.

New England is the old home of Puritanism, the traces whereof, though waning under the influence of Irish and French Canadian immigration, are not yet extinct. The Southern states will long retain the imprint of slavery, not merely in the presence of a host of Negroes, but in the backwardness of the poor white population, and in certain attributes, laudable as well as regrettable, of the upper class. The Northwest is the land of hopefulness, and consequently of bold experiments in legislation: its rural inhabitants have the honesty and somewhat limited horizon of agriculturists. The Pacific West, or rather California and Nevada, for Oregon and Washington belong in point of character quite as much to the Northwestern group, tinges the energy and sanguine good nature of the Westerners with a speculative recklessness natural to mining communities, where great fortunes have rapidly grown and vanished, and into which elements have been suddenly swept together from every part of the world, as a Rocky Mountain rainstorm fills the bottom of a valley with sand and pebbles from all the surrounding heights.

As the dissimilarity of population and of external conditions seems to make for a diversity of constitutional and political arrangements between the states, so also does the large measure of legal independence which each of them enjoys under the federal Constitution. No state can, as a commonwealth, politically deal with or act upon any other state.6 No diplomatic relations can exist nor treaties be made between states,7 no coercion can be exercised by one upon another. And although the government of the Union can act on a state, it rarely does act, and then only in certain strictly limited directions, which do not touch the inner political life of the commonwealth.

Let us pass on to consider the circumstances which work for uniformity among the states, and work more powerfully as time goes on.

He who looks at a map of the Union will be struck by the fact that so many of the boundary lines of the states are straight lines. Those lines tell the same tale as the geometrical plans of cities like St. Petersburg or Washington, where every street runs at the same angle to every other. The states are not areas set off by nature. Their boundaries are for the most part not natural boundaries fixed by mountain ranges, nor even historical boundaries due to a series of events, but boundaries, purely artificial, determined by an authority which carved the national territory into strips of convenient size, as a building company lays out its suburban lots. Of the states subsequent to the original thirteen, California is the only one with a genuine natural frontier, finding it in the chain of the Sierra Nevada on the east and the Pacific Ocean on the west. No one of these later states can be regarded as a naturally developed political organism. They are trees planted by the forester, not self-sown with the help of the seed-scattering wind. This absence of physical lines of demarcation has tended and must tend to prevent the growth of local distinctions. Nature herself seems to have designed the Mississippi basin, as she has designed the unbroken levels of Russia, to be the dwelling place of one people.

Each state makes its own constitution; that is, the people agree on their form of government for themselves, with no interference from the other states or from the Union. This form is subject to one condition only: it must be republican.8 But in each state the people who make the constitution have lately come from other states, where they have lived under and worked constitutions which are to their eyes the natural and almost necessary model for their new state to follow; and in the absence of an inventive spirit among the citizens, it was the obvious course for the newer states to copy the organizations of the older states, especially as these agreed with certain familiar features of the federal Constitution. Hence the outlines, and even the phrases of the elder constitutions reappear in those of the more recently formed states. The precedents set by Virginia, for instance, had much influence on Tennessee, Alabama, Mississippi, and Florida, when they were engaged in making or amending their constitutions during the early part of this century.

Nowhere is population in such constant movement as in America. In some states more than one-fourth of the inhabitants are foreign-born. Many of the townsfolk, not a few even of the farmers, have been till lately citizens of some other state, and will, perhaps, soon move on farther west. The Western states are like a chain of lakes through which there flows a stream which mingles the waters of the higher with those of the lower. In such a constant flux of population local peculiarities are not readily developed, or if they have grown up when the district was still isolated, they disappear as the country becomes filled. Each state takes from its neighbours and gives to its neighbours, so that the process of assimilation is always going on over the whole wide area.

Still more important is the influence of railway communication, of newspapers, of the telegraph. A Greek city like Samos or Mitylene, holding her own island, preserved a distinctive character in spite of commercial intercourse and the sway of Athens. A Swiss canton like Uri or Appenzell, entrenched behind its mountain ramparts, remains, even now under the strengthened central government of the Swiss nation, unlike its neighbours of the lower country. But an American state traversed by great trunk lines of railway, and depending on the markets of the Atlantic cities and of Europe for the sale of its grain, cattle, bacon, and minerals, is attached by a hundred always tightening ties to other states, and touched by their weal or woe as nearly as by what befalls within its own limits. The leading newspapers are read over a vast area. The inhabitants of each state know every morning the events of yesterday over the whole Union.

Finally the political parties are the same in all the states. The tenets (if any) of each party are (with some slight exceptions) the same everywhere, their methods the same, their leaders the same, although of course a prominent man enjoys especial influence in his own state. Hence, state politics are largely swayed by forces and motives external to the particular state, and common to the whole country, or to great sections of it; and the growth of local parties, the emergence of local issues and development of local political schemes, are correspondingly restrained.

These considerations explain why the states, notwithstanding the original diversities between some of them, and the wide scope for political divergence which they all enjoy under the federal Constitution, are so much less dissimilar and less peculiar than might have been expected. European statesmen have of late years been accustomed to think of federalism and local autonomy as convenient methods either for recognizing and giving free scope to the sentiment of nationality which may exist in any part of an empire, or for meeting the need for local institutions and distinct legislation which may arise from differences between such a part and the rest of the empire. It is one or other or both of these reasons that have moved statesmen in such cases as those of Finland in her relations to Russia, Hungary in her relations to the Austro-Hungarian monarchy, Iceland in her relations to Denmark, Bulgaria in her relations to the Turkish sultan, Ireland in her relations to Great Britain. But the final causes, so to speak, of the recognition of the states of the American Union as autonomous commonwealths, have been different. Their self-government is not the consequence of differences which can be made harmless to the whole body politic only by being allowed free course. It has been due primarily to the historical fact that they existed as commonwealths before the Union came into being; secondarily, to the belief that localized government is the best guarantee for civic freedom, and to a sense of the difficulty of administering a vast territory and population from one centre and by one government.

I return to indicate the points in which the legal independence and right of self-government of the several states appears. Each has its own:

• Constitution (whereof more anon)
• Executive, consisting of a governor, and various other officials
• Legislature of two houses
• System of local government in counties, cities, townships, and school districts
• System of state and local taxation
• Debts, which it may (and sometimes does) repudiate at its own pleasure
• Body of private law, including the whole law of real and personal property, of contracts, of torts, and of family relations
• System of procedure, civil and criminal
• Courts, from which no appeal lies (except in cases touching federal legislation or the federal Constitution) to any federal court
• Citizenship, which may admit persons (e.g., recent immigrants) to certain privileges of citizens at times, or on conditions, wholly different from those prescribed by other states

Three points deserve to be noted as illustrating what these attributes include.

I. A man gains active citizenship of the United States (i.e., a share in the government of the Union) only by becoming a citizen of some particular state. Being such, he is forthwith entitled to the national franchise. That is to say, voting power in the state carries voting power in federal elections, and however lax a state may be in its grant of such power, e.g., to foreigners just landed or to persons convicted of crime, these state voters will have the right of voting in congressional and presidential elections.9 The only restriction on the states in this matter is that of the Fourteenth and Fifteenth Constitutional Amendments, which have already been discussed. They were intended to secure equal treatment to the Negroes, and incidentally they declare the protection given to all citizens of the United States.10 Whether they really enlarge it, that is to say, whether it did not exist by implication before, is a legal question not needing to be discussed here.

II. The power of a state over all communities within its limits is absolute. It may grant or refuse local government as it pleases. The population of the city of Providence is nearly one-half of that of the state of Rhode Island, and that of New York City about one-half of that of the state of New York. But the state might in either case extinguish the municipality, and govern the city by a single state commissioner appointed for the purpose, or leave it without any government whatever. The city would have no right of complaint to the federal president or Congress against such a measure. Massachusetts remodelled the city government of Boston just as the British Parliament might remodel that of Birmingham and once superseded the city government of Chelsea by appointing a sort of temporary dictator to administer it for a time. Let an Englishman imagine a county council for Warwickshire suppressing the municipality of Birmingham, or a Frenchman imagine the department of the Rhône extinguishing the municipality of Lyons, with no possibility of intervention by the central authority, and he will measure the difference between the American states and the local governments of Western Europe.

III. A state commands the allegiance of its citizens, and may punish them for treason against it. The power has rarely been exercised, but its undoubted legal existence had much to do with inducing the citizens of the Southern states to follow their governments into secession in 1861. They conceived themselves to owe allegiance to the state as well as to the Union, and when it became impossible to preserve both, because the state had declared its secession from the Union, they might hold the earlier and nearer authority to be paramount. Allegiance to the state must now, since the war, be taken to be subordinate to allegiance to the Union. But allegiance to the state still exists; treason against the state is still possible. One cannot think of treason against Warwickshire or the department of the Rhône.

These are illustrations of the doctrine which Europeans often fail to grasp, that the American states were originally in a certain sense, and still for certain purposes remain, sovereign states. Each of the original thirteen became sovereign (so far as its domestic affairs were concerned, though not as respects international relations) when it revolted from the mother country in 1776. By entering the Confederation of 1781–88 it parted with one or two of the attributes of sovereignty; by accepting the federal Constitution in 1788–91 it subjected itself for certain specified purposes to a central government, but claimed to retain its sovereignty for all other purposes. That is to say, the authority of a state is an inherent, not a delegated, authority. It has all the powers which any independent government can have, except such as it can be affirmatively shown to have stripped itself of, while the federal government has only such powers as it can be affirmatively shown to have received. To use the legal expression, the presumption is always for a state, and the burden of proof lies upon anyone who denies its authority in a particular matter.11

What state sovereignty means and includes is a question which incessantly engaged the most active legal and political minds of the nation, from 1789 down to 1870. Some thought it paramount to the rights of the Union. Some considered it as held in suspense by the Constitution, but capable of reviving as soon as a state should desire to separate from the Union. Some maintained that each state had in accepting the Constitution finally renounced its sovereignty, which thereafter existed only in the sense of such an undefined domestic legislative and administrative authority as had not been conferred upon Congress. The conflict of these views, which became acute in 1830 when South Carolina claimed the right of nullification, produced secession and the war of 1861–65. Since the defeat of the Secessionists, the last of these views may be deemed to have been established, and the term “state sovereignty” is now but seldom heard. Even “states’ rights” have a different meaning from that which they had before the War of Secession.12

A European who now looks calmly back on this tremendous controversy of tongue, pen, and sword, will be apt to express his ideas of it in the following way. He will remark that much of the obscurity and perplexity arose from confounding the sovereignty of the American nation with the sovereignty of the federal government. The federal government clearly was sovereign only for certain purposes, i.e., only in so far as it had received specified powers from the Constitution. These powers did not, and in a strict legal construction do not now, abrogate the supremacy of the states. A state still possesses one important attribute of sovereignty—immunity from being sued except by another state. But the American nation which had made the Constitution, had done so in respect of its own sovereignty, and might well be deemed to retain that sovereignty as paramount to any rights of the states. The feeling of this ultimate supremacy of the nation was what swayed the minds of those who resisted secession, just as the equally well-grounded persuasion of the limited character of the central federal government satisfied the conscience of the seceding South.

The Constitution of 1789 was a compromise, and a compromise arrived at by allowing contradictory propositions to be represented as both true. It has been compared to the declarations made with so much energy and precision of language in the ancient hymn Quicunque Vult, where, however, the apparent contradiction has always been held to seem a contradiction only because the human intellect is unequal to the comprehension of such profound mysteries. To everyone who urged that there were thirteen states, and therefore thirteen governments, it was answered, and truly, that there was one government, because the people were one. To everyone who declared that there was one government, it was answered with no less truth that there were thirteen. Thus counsel was darkened by words without knowledge; the question went off into metaphysics, and found no end, in wandering mazes lost.

There was, in fact, a divergence between the technical and the practical aspects of the question. Technically, the seceding states had an arguable case; and if the point had been one to be decided on the construction of the Constitution as a court decides on the construction of a commercial contract, they were possibly entitled to judgment. Practically, the defenders of the Union stood on firmer ground, because circumstances had changed since 1789 so as to make the nation more completely one nation than it then was, and had so involved the fortunes of the majority which held to the Union with those of the minority seeking to depart that the majority might feel justified in forbidding their departure. Stripped of legal technicalities, the dispute resolved itself into the problem often proposed but capable of no general solution: When is a majority entitled to use force for the sake of retaining a minority in the same political body with itself? To this question, when it appears in a concrete shape, as to the similar question when an insurrection is justifiable, an answer can seldom be given beforehand. The result decides. When treason prospers, none dare call it treason.

The Constitution, which had rendered many services to the American people, did them an inevitable disservice when it fixed their minds on the legal aspects of the question. Law was meant to be the servant of politics, and must not be suffered to become the master. A case had arisen which its formulæ were unfit to deal with, a case which had to be settled on large moral and historical grounds. It was not merely the superior physical force of the North that prevailed; it was the moral forces which rule the world, forces which had long worked against slavery, and were ordained to save North America from the curse of hostile nations established side by side.

The word “sovereignty,” which has in many ways clouded the domain of public law and jurisprudence, confused men’s minds by making them assume that there must in every country exist, and be discoverable by legal inquiry, either one body invested legally with supreme power over all minor bodies, or several bodies which, though they had consented to form part of a larger body, were each in the last resort independent of it, and responsible to none but themselves.13 They forgot that a constitution may not have determined where legal supremacy shall dwell. Where the Constitution of the United States placed it was at any rate doubtful, so doubtful that it would have been better to drop technicalities, and recognize the broad fact that the legal claims of the states had become incompatible with the historical as well as legal claims of the nation. In the uncertainty as to where legal right resided, it would have been prudent to consider where physical force resided. The South, however, thought herself able to resist any physical force which the rest of the nation might bring against her. Thus encouraged, she took her stand on the doctrine of states’ rights; and then followed a pouring out of blood and treasure such as was never spent on determining a point of law before, not even when Edward III and his successors waged war for a hundred years to establish the claim of females to inherit the crown of France.

What, then, do the rights of a state now include? Every right or power of a government except:

• The right of secession (not abrogated in terms, but admitted since the war to be no longer claimable. It is expressly negatived in the recent constitutions of several Southern states.);
• Powers which the Constitution withholds from the states (including that of intercourse with foreign governments);
• Powers which the Constitution expressly confers on the federal government.

As respects some powers of the last class, however, the states may act concurrently with, or in default of action by, the federal government. It is only from contravention of its action that they must abstain. And where contravention is alleged to exist, whether legislative or executive, it is by a court of law, and, in case the decision is in the first instance favourable to the pretensions of the state, ultimately by a federal court, that the question falls to be decided.14

A reference to the preceding list of what each state may create in the way of distinct institutions will show that these rights practically cover nearly all the ordinary relations of citizens to one another and to their government, nearly all the questions which have been most agitated in England and France of recent years. An American may, through a long life, never be reminded of the federal government, except when he votes at presidential and congressional elections, buys a package of tobacco bearing the government stamp, lodges a complaint against the post office, and opens his trunks for a customhouse officer on the pier at New York when he returns from a tour in Europe. His direct taxes are paid to officials acting under state laws. The state, or a local authority constituted by state statutes, registers his birth, appoints his guardian, 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 licence), marries him, divorces him, entertains civil actions against him, fines him for overspeeding his automobile, declares him a bankrupt, hangs him for murder. The police 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. Looking at this immense compass of state functions, Jefferson would seem to have been not far wrong when he said that the federal government was nothing more than the American department of foreign affairs. But although the national government touches the direct interests of the citizen less than does the state government, it touches his sentiment more. Hence the strength of his attachment to the former and his interest in it must not be measured by the frequency of his dealings with it. In the partitionment of governmental functions between nation and state, the state gets the most but the nation the highest, so the balance between the two is preserved.

Thus every American citizen lives in a duality of which Europeans, always excepting the Swiss, and to some extent the Germans, have no experience. He lives under two governments and two sets of laws; he is animated by two patriotisms and owes two allegiances. That these should both be strong and rarely be in conflict is most fortunate. It is the result of skilful adjustment and long habit, of the fact that those whose votes control the two sets of governments are the same persons, but above all of that harmony of each set of institutions with the other set, a harmony due to the identity of the principles whereon both are founded, which makes each appear necessary to the stability of the other, the states to the nation as its basis, the national government to the states as their protector.

chapter 37

State Constitutions

The government of each state is determined by and set forth in its constitution, a comprehensive fundamental law, or rather group of laws included in one instrument, which has been directly enacted by the people of the state, and is capable of being repealed or altered, not by their representatives, but by themselves alone. As the Constitution of the United States stands above Congress and out of its reach, so the constitution of each state stands above the legislature of that state, cannot be varied in any particular by the state legislature, and involves the invalidity of any statute passed by the legislature which is found to be inconsistent with it.

The state constitutions are the oldest things in the political history of America, for they are the continuations and representatives of the royal colonial charters, whereby the earliest English settlements in America were created, and under which their several local governments were established, subject to the authority of the English Crown and ultimately of the British Parliament. But, like most of the institutions under which English-speaking peoples now live, they have a pedigree which goes back to a time anterior to the discovery of America itself. It begins with the English trade guild of the Middle Ages, itself the child of still more ancient corporations, dating back to the days of imperial Rome, and formed under her imperishable law. Charters were granted to merchant guilds in England as far back as the days of King Henry I. In 1463, Edward IV gave an elaborate one to the merchant adventurers trading with Flanders. In it we may already discern the arrangements which are more fully set forth in two later charters of greater historical interest, the charter of Queen Elizabeth to the East India Company in 1599, and the charter of Charles I to the “Governor and Company of the Mattachusetts Bay in Newe-England” in 1628. Both these instruments establish and incorporate trading companies, with power to implead and be impleaded, to use a common seal, to possess and acquire lands, tenements and hereditaments, with provisions for the making of ordinances for the welfare of the company. The Massachusetts Charter creates a frame of government consisting of a governor, deputy-governor, and eighteen assistants (the term still in use in many of the London city guilds), and directs them to hold four times a year a general meeting of the company, to be called the “greate and generall Court,” in which general court “the Governor or deputie Governor, and such of the assistants and Freemen of the Company as shall be present, shall have full power and authority to choose other persons to be free of the Company, and to elect and constitute such officers as they shall thinke fitt for managing the affaires of the said Governor and Company, and to make Lawes and Ordinances for the Good and Welfare of the saide Company, and for the Government and Ordering of the saide Landes and Plantasion, and the People inhabiting and to inhabite the same, soe as such Lawes and Ordinances be not contrary or repugnant to the Lawes and Statuts of this our realme of England.” In 1691, the charter of 1628 having been declared forfeited in 1684, a new one was granted by King William and Queen Mary, and this instrument, while it retains much of the language and some of the character of the trade guild charter, is really a political frame of government for a colony. The assistants receive the additional title of councillors; their number is raised to twenty-eight; they are to be chosen by the general court, and the general court itself is to consist, together with the governor and assistants, of freeholders elected by towns or places within the colony, the electors being persons with a forty shilling freehold or other property worth £40. The governor is directed to appoint judges, commissioners of oyer and terminer, etc.; the general court receives power to establish judicatories and courts of record, to pass laws (being not repugnant to the laws of England), and to provide for all necessary civil offices. An appeal from the courts shall always be to the King in his privy council. This is a true political constitution.1 Under it the colony was governed, and in the main well and wisely governed, till 1780. Much of it, not merely its terms, such as the name general court, but its solid framework, was transferred bodily to the Massachusetts Constitution of 1780, which is now in force, and which profoundly influenced the Convention that prepared the federal Constitution in 1787. Yet the charter of 1691 is nothing but an extension and development of the trading charter of 1628, in which there already appears, as there had appeared in Edward IV’s charter of 1463, and in the East India Company’s charter of 1599, the provision that the power of lawgiving, otherwise unlimited, should be restricted by the terms of the charter itself, which required that every law for the colony should be agreeable to the laws of England. We have therefore in the three charters which I have named, those of 1463, 1599, and 1628, as well as in that of 1691, the essential and capital characteristic of a rigid or supreme constitution—viz., a frame of government established by a superior authority, creating a subordinate lawmaking body, which can do everything except violate the terms and transcend the powers of the instrument to which it owes its own existence. So long as the colony remained under the British Crown, the superior authority, which could amend or remake the frame of government, was the British Crown or Parliament. When the connection with Britain was severed, that authority passed over, not to the state legislature, which remained limited, as it always had been, but to the people of the now independent commonwealth, whose will speaks through what is now the state constitution, just as the will of the Crown or of Parliament had spoken through the charters of 1628 and 1691.

I have taken the case of Massachusetts as the best example of the way in which the trading company grows into a colony, and the colony into a state. But some of the other colonies furnish illustrations scarcely less apposite. The oldest of them all, the acorn whence the oak of English dominion in America has sprung, the colony of Virginia, was, by the second charter, of 1609, established under the title of “The Treasurer and Company of Adventurers and Planters of the City of London for the first colony in Virginia.” 2

Within the period of ten years, under the last of the Tudors and the first of the Stuarts, two trading charters were issued to two companies of English adventurers. One of these charters is the root of English title to the East and the other to the West. One of these companies has grown into the Empire of India; the other into the United States of North America. If England had done nothing else in history, she might trust for her fame to the work which these charters began. And the foundations of both dominions were laid in the age which was adorned by the greatest of all her creative minds, and gave birth to the men who set on a solid basis a frame of representative government which all the free nations of the modern world have copied.

When, in 1776, the thirteen colonies threw off their allegiance to King George III, and declared themselves independent states, the colonial charter naturally became the state constitution.3 In most cases it was remodelled, with large alterations, by the revolting colony. But in three states it was maintained unchanged (except, of course, so far as Crown authority was concerned), viz., in Massachusetts till 1780, in Connecticut till 1818, and in Rhode Island till 1842.4 The other thirty-five states admitted to the Union in addition to the original thirteen, have all entered it as organized self-governing communities, with their constitutions already made by their respective peoples. Each act of Congress which admits a new state admits it as a subsisting commonwealth, sometimes empowering its people to meet and enact a constitution for themselves (subject to conditions mentioned in the act), sometimes accepting and confirming a constitution already made by the people.5 Congress may impose conditions which the state constitution must fulfil; and in admitting the eight newest states has affected to retain the power of maintaining these conditions in force. But the authority of the state constitutions does not flow from Congress, but from acceptance by the citizens of the states for which they are made. Of these instruments, therefore, no less than of the constitutions of the thirteen original states, we may say that although subsequent in date to the federal Constitution, they are, so far as each state is concerned, de jure prior to it. Their authority over their own citizens is nowise derived from it.6 Nor is this a mere piece of technical law. The antiquity of the older states as separate commonwealths, running back into the heroic ages of the first colonization of America and the days of the Revolutionary War, is a potent source of the local patriotism of their inhabitants, and gives these states a sense of historic growth and indwelling corporate life which they could not have possessed had they been the mere creatures of the federal government.

The state constitutions of America well deserve to be compared with those of the self-governing British colonies. But one remarkable difference must be noted here. The constitutions of British colonies have all proceeded from the Imperial Parliament of the United Kingdom,7 which retains its full legal power of legislating for every part of the British dominions. In many cases a colonial constitution provides that it may be itself altered by the colonial legislature, of course with the assent of the Crown; but inasmuch as in its origin it is a statutory constitution, not self-grown, but planted as a shoot by the Imperial Parliament at home, Parliament may always alter or abolish it. Congress, on the other hand, has no power to alter a state constitution. And whatever power of alteration has been granted to a British colony is exercisable by the legislature of the colony, not, as in America, by the citizens at large.

The original constitutions of the states, whether of the old thirteen or of those subsequently admitted, have been in nearly every case (except those of the twelve newest states) subsequently recast, in some instances, five, six, or even seven times, as well as amended in particular points. Thus constitutions of all dates are now in force in different states, from that of Massachusetts, enacted in 1780, but largely amended since, to that of Arizona enacted in 1912.

The constitutions of the revolutionary period were in a few instances enacted by the state legislature, acting as a body with plenary powers, but more usually by the people acting through a convention, i.e., a body specially chosen by the voters at large for the purpose, and invested with full powers, not only of drafting, but of adopting the instrument of government.8 Since 1835, when Michigan framed her constitution, the invariable practice in the Northern states has been for the convention, elected by the voters, to submit in accordance with the precedents set by Massachusetts in 1780, and by Maine in 1820, the draft constitution framed by it to the citizens of the state at large, who vote upon it yes or no. They usually vote on it as a whole, and adopt or reject it en bloc, but sometimes provision is made for voting separately on some particular point or points. In the Southern states the practice has varied. In 1890, Mississippi enacted a new constitution by a convention alone; and in Kentucky (in 1891), after the draft constitution which the convention had prepared had been submitted to and accepted by a popular vote (as provided by the statute which summoned the convention), the convention met again and made some alterations on which, strange to say, the people have not been since consulted.9 Alabama in 1901 submitted her new constitution to the people. But South Carolina in 1895 and Louisiana in 1898 allowed conventions to adopt constitutions, and Virginia in 1902 followed their example, although the statute under which the constitutional convention was acting had directed that the revised constitution should be “submitted to the qualified voters.”

The people of a state retain forever in their hands, altogether independent of the national government, the power of altering their constitution. When a new constitution is to be prepared, or the existing one amended, the initiative usually comes from the legislature, which (either by a simple majority, or by a two-thirds majority, or by a majority in two successive legislatures, as the constitution may in each instance provide) submits the matter to the voters in one of two ways. It may either propose to the people certain specific amendments,10 or it may ask the people to decide by a direct popular vote on the propriety of calling a constitutional convention to revise the whole existing constitution. In the former case the amendments suggested by the legislature are directly voted on by the citizens; in the latter the legislature, so soon as the citizens have voted for the holding of a convention, provides for the election by the people of this convention. When elected, the convention meets, sets to work, goes through the old constitution, and prepares a new one, which is then presented to the people for ratification or rejection at the polls. Only in the little state of Delaware is the function of amending the constitution still left to the legislature without the subsequent ratification of a popular vote, subject, however, to the provision that changes must be passed by two successive legislatures, by a two-thirds majority of the members elected to each house, and must have been put before the people at the election of members for the second.11 Some states provide for the submission to the people at fixed intervals, of seven, ten, sixteen, or twenty years, of the propriety of calling a convention to revise the constitution, and a few allow a prescribed percentage of the voters to propose amendments by their own initiative. Be it observed, however, that whereas the federal Constitution can be amended only by a vote of three-fourths of the states, a constitution can in nearly every state be changed by a bare majority of the citizens voting at the polls.12 Hence we may expect to find, and shall find, that these instruments are altered more frequently and materially than the federal Constitution has been. Between 1889 and 1908 only two states, Tennessee and Wyoming, abstained from altering their constitutions (Wyoming’s was enacted in 1889) and in those twenty years California altered hers forty-two times. Between 1892 and 1908 she adopted forty-seven amendments.

The tendency of late years has been to make the process of alteration quicker, for recent constitutions generally provide that one legislature, not two successive legislatures, may propose an amendment, which shall at once take effect if accepted by the people,13 and also to make it easier, for some of the Western states now allow the people to start the process.

A state constitution is not only independent of the central national government (save in certain points already specified), it is also the fundamental organic law of the state itself. The state exists as a commonwealth by virtue of its constitution, and all state authorities, legislative, executive, and judicial, are the creatures of, and subject to, the state constitution.14 Just as the president and Congress are placed beneath the federal Constitution, so the governor and houses of a state are subject to its constitution, and any act of theirs done either in contravention of its provisions, or in excess of the powers it confers on them, is absolutely void. All that has been said in preceding chapters regarding the functions of the courts of law where an act of Congress is alleged to be inconsistent with the federal Constitution, applies equally where a statute passed by a state legislature is alleged to transgress the constitution of the state, and of course such validity may be contested in any court, whether a state court or a federal court, because the question is an ordinary question of law, and is to be solved by determining whether or no a law of inferior authority is inconsistent with a law of superior authority. Whenever in any legal proceeding before any tribunal, either party relies on a state statute, and the other party alleges that this statute is ultra vires of the state legislature, and therefore void, the tribunal must determine the question just as it would determine whether a bye-law made by a municipal council or a railway company was in excess of the lawmaking power which the municipality or the company had received from the higher authority which incorporated it and gave it such legislative power as it possesses. But although federal courts are fully competent to entertain a question arising on the construction of a state constitution, their practice is to follow the precedents set by any decision of a court of the state in question, just as they would follow the decision of a French court in determining a point of law. Each state must be assumed to know its own law better than a stranger can; but also that the supreme court of a state is the authorized exponent of the mind of the people who enacted its constitution.

A state constitution is really nothing but a law made directly by the people voting at the polls upon a draft submitted to them. The people when they so vote act as a primary and constituent assembly, just as if they were all summoned to meet in one place like the folkmoots of our Teutonic forefathers. It is only their numbers that prevent them from so meeting in one place, and oblige the vote to be taken at a variety of polling places. Hence the enactment of a constitution is an exercise of direct popular sovereignty to which we find few parallels in modern Europe, though it was familiar enough to the republics of antiquity, and has lasted till now in some of the cantons of Switzerland.15

The importance of this character of a state constitution as a popularly-enacted law, overriding every minor state law, becomes all the greater when the contents of these constitutions are examined. Europeans conceive of a constitution as an instrument, usually a short instrument, which creates a frame of government, defines its departments and powers, and declares the “primordial rights” of the subject or citizen as against the rulers. An American state constitution does this, but does more; and in most cases, infinitely more. It deals with a variety of topics which in Europe would be left to the ordinary action of the legislature, or of administrative authorities; and it pursues these topics into a minute detail hardly to be looked for in a fundamental instrument. Some of these details will be mentioned presently. Meantime I will sketch in outline the frame and contents of the more recent constitutions, reserving for next chapter remarks on the differences of type between those of the older and those of the newer states.

A normal constitution consists of five parts:

• I. The definition of the boundaries of the state. (This does not occur in the case of the older states.)
• II. The so-called bill of rights—an enumeration (whereof more anon) of the citizens’ primordial rights to liberty of person and security of property. This usually stands at the beginning of the constitution, but occasionally at the end.
• III. The frame of government, i.e., the names, functions, and powers of the legislative bodies (including provisions anent the elective suffrage), the executive officers, and the courts of justice.
• IV. Miscellaneous provisions relating to administration and law, including articles treating of education, of the militia, of taxation and revenue, of the public debts, of local government, of state prisons and hospitals, of agriculture, of labour, of corporations and railroads, of impeachment, and of the method of amending the constitution, besides other matters still less political in their character. The order in which these occur differs in different instruments, and there are some in which some of the above topics are not mentioned at all. The more recent constitutions and those of the newer states are much fuller on these points.
• V. The schedule, which contains provisions relating to the method of submitting the constitution to the vote of the people, and arrangements for the transition from the previous constitution to the new one which is to be enacted by that vote. Being of a temporary nature, the schedule is not strictly a part of the constitution.

The bill of rights is historically the most interesting part of these constitutions, for it is the legitimate child and representative of Magna Charta, and of those other declarations and enactments, down to the Bill of Rights of the Act of 1 William and Mary, session 2, by which the liberties of Englishmen have been secured. Most of the thirteen colonies when they asserted their independence and framed their constitutions inserted a declaration of the fundamental rights of the people, and the example then set has been followed by the newer states, and, indeed, by the states generally in their most recent constitutions. Considering that all danger from the exercise of despotic power upon the people of the states by the executive has long since vanished, their executive authorities being the creatures of popular vote and nowadays rather too weak than too strong, it may excite surprise that these assertions of the rights and immunities of the individual citizen as against the government should continue to be repeated in the instruments of today. A reason may be found in the remarkable constitutional conservatism of the Americans, and in their fondness for the enunciation of the general maxims of political freedom. But it is also argued that these declarations of principle have a practical value, as asserting the rights of individuals and of minorities against arbitrary conduct by a majority in the legislature, which might, in the absence of such provisions, be tempted at moments of excitement to suspend the ordinary law and arm the magistrates with excessive powers. They are therefore, it is held, still safeguards against tyranny; and they serve the purpose of solemnly reminding a state legislature and its officers of those fundamental principles which they ought never to overstep.16 Although such provisions certainly do restrain a state legislature in ways which the British Parliament would find inconvenient, few complaints of practical evils thence arising are heard.

A general notion of these bills of rights may be gathered from that enacted for itself in 1907 by the new state of Oklahoma, printed in the Appendix to this volume. I may mention, in addition, a few curious provisions which occur in some of them.

All provide for full freedom of religious opinion and worship, and for the equality before the law of all religious denominations and their members; and many forbid the establishment of any particular church or sect, and declare that no public money ought to be applied in aid of any religious body or sectarian institution.17 But Delaware holds it to be “the duty of all men frequently to assemble for public worship”; and Vermont adds that “every sect or denomination of Christians ought to observe the Sabbath or Lord’s Day.” And thirteen states declare that the provisions for freedom of conscience are not to be taken to excuse acts of licentiousness, or justify practices inconsistent with the peace and safety of the state,18 Mississippi adding (1890) that they shall not be construed to exclude the Bible from use in schools, and Idaho, Montana, and Utah (states familiar with Mormonism), denouncing bigamy and polygamy as crimes to be made punishable.

Louisiana (Constitution of 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 legitimate end is to secure justice to all, preserve peace, and promote the interest and happiness of the people.”

A large majority of the states declare that “all men have a natural, inherent, and inalienable right to enjoy and defend life and liberty”; and all of these, except the melancholy Missouri, add, the “natural right to pursue happiness.”

Most declare that all men have “a natural right to acquire, possess, and protect property,” while Arkansas and Kentucky are so penetrated with the importance of this right that they declare it to be “before and higher than any constitutional sanction.”

Mississippi and Louisiana (Constitutions of 1868) provided that “the right of all citizens to travel upon public conveyances shall not be infringed upon nor in any manner abridged.” Both states have now dropped this injunction.19

Kentucky (Constitution of 1891) lays down that “absolute arbitrary power over the lives, liberty, and property of freemen exists nowhwere 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 authority, and instituted for their peace, safety, happiness, and security, and the protection of property. For the advancement of these ends they have at all times an inalienable and indefeasible right to alter, reform, or abolish their government in such manner as they may deem proper.” 20

All in one form or another secure the freedom of writing and speaking opinions; and some add that the truth of a libel may be given in evidence.21

Nearly all secure the freedom of public meeting and petition. Considering that these are the last rights likely to be infringed by a state government, it is odd to find Florida in her Constitution of 1886 providing that “the people shall have the right to assemble together to consult for the common good, to instruct their representatives, and to petition the legislature for redress of grievances,” and Kentucky in 1891 equally concerned to secure this right.

Many provide that no ex post facto law, nor law impairing the obligation of a contract, shall be passed by the state legislature; and that private property shall not be taken by the state without just compensation.

Many forbid the creation of any title of nobility.

Many declare that the right of citizens to bear arms shall never be denied, a provision which might be expected to prove inconvenient where it was desired to check the habit of carrying revolvers. Tennessee therefore (Constitution of 1870) prudently adds that “the legislature shall have power to regulate the wearing of arms, with a view to prevent crime.” So also Texas, where such a provision is certainly not superfluous. And eight others22 allow the legislature to forbid the carrying of concealed weapons.

Several forbid armed men to be brought into the state “for the suppression of domestic violence,” in order to prevent employers from resorting to this means of protecting property in case of labour disputes accompanied by violence.

Some declare that the estates of suicides shall descend in the ordinary course of law.

Most provide that conviction for treason shall not work corruption of blood nor forfeiture of estate.

Eight forbid white and coloured children to be taught in the same public schools, while Wyoming provides that no distinction shall be made in the public schools on account of sex, race, or colour.

Many declare the right of trial by jury to be inviolate, even while permitting the parties to waive it. Several states empower a jury in civil cases to render a verdict by a three-fourths or two-thirds majority, and five states permit it to consist of less than twelve.

Some forbid imprisonment for debt, except in case of fraud, and secure the acceptance of reasonable bail, except for the gravest charges.23

Several declare that “perpetuities and monopolies are contrary to the genius of a free State, and ought not to be allowed.”

Many forbid the granting of any hereditary honours, privileges, or emoluments.

North Carolina declares that “as political rights and privileges are not dependent upon or modified by property, therefore no property qualification ought to affect the right to vote or hold office”; and also, “secret political societies are dangerous to the liberties of a free people, and should not be tolerated.”

Massachusetts sets forth, as befits a Puritan state, high moral views: “A frequent recurrence to the fundamental principles of the Constitution, and a constant adherence to those of piety, justice, moderation, temperance, industry, and frugality, are absolutely necessary to preserve the advantages of liberty and to maintain a free government. The people ought consequently to have a particular attention to all those principles in the choice of their officers and representatives, and they have a right to require of their law-givers and magistrates an exact and constant observance of them.”

South Dakota and Wyoming provide that aliens shall have the same rights of property as citizens. Montana confers this benefit as respects mining property, while Washington prohibits the ownership of land by aliens, except for mining purposes. New York in her (now superseded) Constitution of 1846 declared, “All lands within the State are declared to be allodial.”

North Dakota (1889) enacts: “Every citizen shall be free to obtain employment wherever possible, and any person, corporation, or agent thereof, maliciously interfering or hindering in any way any citizen from obtaining, or enjoying employment already obtained, from any other corporation or person, shall be deemed guilty of a misdemeanor.”

Maryland (Constitution of 1867) declares that “a long continuance in the executive departments of power or trust is dangerous to liberty; a rotation, therefore, in those departments is one of the best securities of permanent freedom.” She also pronounces all gifts for any religious purpose (except of a piece of land not exceeding five acres for a place of worship, parsonage, or burying-ground) to be void unless sanctioned by the legislature.

Montana and Idaho declare the use of lands for constructing reservoirs, watercourses, or ways for the purposes of mining or irrigation, to be a public use, subject to state regulation.

Oklahoma provides that “the right of the State to engage in any occupation or business for public purposes shall be be denied or prohibited” save that its agricultural enterprises are to be only “for scientific, educational or charitable purposes.”

These instances, a few out of many, may suffice to show how remote from the common idea of a bill of rights, are some of the enactments which find a place under that heading. The constitution makers seem to have inserted here such doctrines or legal reforms as seemed to them matters of high import or of wide application, especially when they could find no suitable place for them elsewhere in the instrument.

Of the articles of each state constitution which contain the frame of state government it will be more convenient to speak in the chapters which describe the mechanism and character of the governments and administrative systems of the several states. I pass on therefore to what have been classed as the miscellaneous provisions. These are of great interest as revealing the spirit and tendencies of popular government in America, the economic and social condition of the country, the mischiefs that have arisen, the remedies applied to these mischiefs, the ideas and beliefs of the people in matters of legislation.

Among such provisions we find a great deal of matter which is in no distinctive sense constitutional law, but general law, e.g., administrative law, the law of judicial procedure, the ordinary private law of family, inheritance, contract, and so forth; matter therefore which seems out of place in a constitution because fit to be dealt with in ordinary statutes. We find minute provisions regarding the management and liabilities of banking companies, of railways, or of corporations generally; regulations as to the salaries of officials, the quorum of courts sitting in banco, the length of time for appealing, the method of changing the venue, the publication of judicial reports; detailed arrangements for school boards and school taxation (with rules regarding the separation of white and black children in schools), for a department of agriculture, a canal board, or a labour bureau; we find a prohibition of lotteries, of polygamy, of bribery, of lobbying, of the granting of liquor licenses, of usurious interest on money, an abolition of the distinction between sealed and unsealed instruments, a declaration of the extent of a mechanic’s lien for work done. We even find the method prescribed in which stationery and coals for the use of the legislature shall be contracted for, and provisions for fixing the rates which may be charged for the storage of corn in warehouses. The framers of these more recent constitutions have in fact neither wished nor cared to draw a line of distinction between what is proper for a constitution and what ought to be left to be dealt with by the state legislature. And, in the case of three-fourths at least of the states, no such distinction now, in fact, exists.

How is this confusion to be explained? Four reasons may be suggested.

The Americans, like the English, have no love for scientific arrangement. Although the constitutions have been drafted by lawyers, and sometimes by the best lawyers of each state, logical classification and discrimination have not been sought after.

The people found the enactment of a new constitution a convenient opportunity for enunciating doctrines they valued and carrying through reforms they desired. It was a simpler and quicker method than waiting for legislative action, so, when there was a popular demand for the establishment of an institution, or for some legal change, this was shovelled into the new constitution and enacted accordingly.

The peoples of the states have come to distrust their respective legislatures. Hence they desire not only to do a thing forthwith and in their own way rather than leave it to the chance of legislative action, but to narrow as far as they conveniently can (and sometimes farther) the sphere of the legislature.

There is an unmistakable wish in the minds of the people to act directly rather than through their representatives in legislation. The same conscious relish for power which leads some democracies to make their representatives mere delegates, finds a further development in passing by the representatives, and setting the people itself to make and repeal laws.

Those who have read the chapters describing the growth and expansion of the federal Constitution, will naturally ask how far the remarks there made apply to the constitutions of the several states.

These instruments have less capacity for expansion, whether by interpretation or by usage, than the Constitution of the United States: first, because they are more easily, and therefore more frequently, amended or recast; secondly, because they are far longer, and go into much more minute detail. The federal Constitution is so brief and general that custom must fill up what it has left untouched, and judicial construction evolve the application of its terms to cases they do not expressly deal with. But the later state constitutions are so full and precise that they need little in the way of expansive construction, and leave comparatively little room for the action of custom.

The rules of interpretation are in the main the same as those applied to the federal Constitution. One important difference must, however, be noted, springing from the different character of the two governments. The national government is an artificial creation, with no powers except those conferred by the instrument which created it. A state government is a natural growth, which prima facie possesses all the powers incident to any government whatever. Hence, if the question arises whether a state legislature can pass a law on a given subject, the presumption is that it can do so: and positive grounds must be adduced to prove that it cannot. It may be restrained by some inhibition either in the federal Constitution, or in the constitution of its own state. But such inhibition must be affirmatively shown to have been imposed, or, to put the same point in other words, a state constitution is held to be, not a document conferring defined and specified powers on the legislature, but one regulating and limiting that general authority which the representatives of the people enjoy ipso jure by their organization into a legislative body.

“It has never been questioned that the American legislatures have the same unlimited power in regard to legislation which resides in the British Parliament, except where they are restrained by written Constitutions. That must be conceded to be a fundamental principle in the political organization of the American States. We cannot well comprehend how, upon principle, it could be otherwise. The people must, of course, possess all legislative power originally. They have committed this in the most general and unlimited manner to the several State legislatures, saving only such restrictions as are imposed by the Constitution of the United States or of the particular State in question.” 24

“The people, in framing the Constitution, committed to the legislature the whole law-making powers of the State which they did not expressly or impliedly withhold. Plenary power in the legislature, for all purposes of civil government, is the rule. A prohibition to exercise a particular power is an exception.” 25

It must not, however, be supposed from these dicta that even if the states were independent commonwealths, the federal government having disappeared, their legislatures would enjoy anything approaching the omnipotence of the British Parliament, “whose power and jurisdiction is,” says Sir Edward Coke, “so transcendent and absolute that it cannot be confined, either for persons or causes, within any bounds.” “All mischiefs and grievances,” adds Blackstone, “operations and remedies that transcend the ordinary course of the laws are within the reach of this extraordinary tribunal.” Parliament being absolutely sovereign, can command, or extinguish and swallow up the executive and the judiciary, appropriating to itself their functions. But in America, a legislature is a legislature and nothing more. The same instrument which creates it creates also the executive governor and the judges. They hold by a title as good as its own. If the legislature should pass a law depriving the governor of an executive function conferred by the constitution, that law would be void. If the legislature attempted to interfere with the jurisdiction of the courts, their action would be even more palpably illegal and ineffectual.26

The executive and legislative departments of a state government have of course the right and duty of acting in the first instance on their view of the meaning of the constitution. But the ultimate expounder of that meaning is the judiciary; and when the courts of a state have solemnly declared the true construction of any provision of the constitution, all persons are bound to regulate their conduct accordingly. As was observed in considering the functions of the federal judiciary (Chapter 23), this authority of the American courts is not in the nature of a political or discretionary power vested in them; it is a necessary consequence of the existence of a fundamental law superior to any statute which the legislature may enact, or to any right which a governor may conceive himself to possess.27 To quote the words of an American decision:

“In exercising this high authority the judges claim no judicial supremacy; they are only the administrators of the public 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.”

It is a well-established rule that the judges will always lean in favour of the validity of a legislative act; that if there be a reasonable doubt as to the constitutionality of a statute they will solve that doubt in favour of the statute; that where the legislature has been left a discretion they will assume the discretion to have been wisely exercised; that where the construction of a statute is doubtful, they will adopt such construction as will harmonize with the constitution, and enable it to take effect. So it has been well observed that a man might with perfect consistency argue as a member of a legislature against a bill on the ground that it is unconstitutional, and after having been appointed a judge, might in his judicial capacity sustain its constitutionality. Judges must not inquire into the motives of the legislature, nor refuse to apply an act because they may suspect that it was obtained by fraud or corruption, still less because they hold it to be opposed to justice and sound policy. “A court cannot declare a statute unconstitutional and void solely on the ground of unjust and oppressive provisions, or because it is supposed to violate the natural, social, or political rights of the citizen, unless it can be shown that such injustice is prohibited, or such rights guaranteed or protected, by the Constitution.28 . . . But when a statute is adjudged to be unconstitutional, it is as if it had never been. Rights cannot be built up under it; contracts which depend upon it for their consideration are void; it constitutes a protection to no one who has acted under it; and no one can be punished for having refused obedience to it before the decision was made. And what is true of an Act void in toto, is true also as to any part of an Act which is found to be unconstitutional, and which consequently is to be regarded as having never at any time been possessed of legal force.” 29

It may be thought, and the impression will be confirmed when we consider as well the minuteness of the state constitutions as the profusion of state legislation and the inconsiderate haste with which it is passed, that as the risk of a conflict between the constitution and statutes is great, so the inconveniences of a system under which the citizens cannot tell whether their obedience is or is not due to a statute must be serious. How is a man to know whether he has really acquired a right under a statute? How is he to learn whether to conform his conduct to it or not? How is an investor to judge if he may safely lend money which a statute has empowered a community to borrow, when the statute may be itself subsequently overthrown?

To meet these difficulties some state constitutions30 provide that the judges of the supreme court of the state may be called upon by the governor or either house of the legislature to deliver their opinions upon questions of law, without waiting for these questions to arise and be determined in an ordinary lawsuit.31 This expedient seems a good one, for it procures a judicial and nonpartisan interpretation, and procures it at once before rights or interests have been created. But it is open to the objection that the opinions so pronounced by judges are given before cases have arisen which show how in fact a statute is working, and what points it may raise; and that in giving them the judges have not, as in contested lawsuits, the assistance of counsel arguing for their respective clients. And this is perhaps the reason why in most of the states where the provision exists, the judges have declared that they act under it in a purely advisory capacity, and that their deliverances are to be deemed merely expressions of opinion, not binding upon them should the point afterwards arise in a lawsuit involving the rights of parties.32

The highest court of a state may depart from a view it has previously laid down, even in a legal proceeding, regarding the construction of the constitution, that is to say, it has a legal right to do so if convinced that the former view was wrong. But it is reluctant to do so, because such a course unsettles the law and impairs the respect felt for the bench. And there is less occasion for it to do so than in the parallel case of the supreme federal court, because as the process of amending a state constitution is simpler and speedier than that of altering the federal Constitution, a remedy can be more easily applied to any mistake which the state judiciary has committed. This unwillingness to unsettle the law goes so far that state courts have sometimes refused to disturb a practice long acquiesced in by the legislature, which they have nevertheless declared they would have pronounced unconstitutional had it come before them while still new.

chapter 38

The Development of State Constitutions

It was observed in the last chapter that the state constitutions furnish invaluable materials for history. Their interest is all the greater, because the succession of constitutions and amendments to constitutions from 1776 till today enables the annals of legislation and political sentiment to be read in these documents more easily and succinctly than in any similar series of laws in any other country. They are a mine of instruction for the natural history of democratic communities. Their fulness and minuteness make them, so to speak, more pictorial than the federal Constitution. They tell us more about the actual methods and conduct of the government than it does. If we had similar materials concerning the history of as many Greek republics during the ages of Themistocles and Pericles, we could rewrite the history of Greece. Some things, however, even these elaborately minute documents do not tell us. No one could gather from then what were the modes of doing business in the state legislatures, and how great a part the system of committees plays there. No one could learn what manner of men constitute those bodies and determine their character. No one would know that the whole machinery is worked by a restlessly active party organization. Nevertheless they are so instructive as records of past movements, and as an index to the present tendencies of American democracy, that I heartily regret that the space at my disposal permits me to make only a sparing use of the materials which I gathered during many months spent in studying the one hundred and thirteen constitutions enacted between 1776 and 1887, to which many more have since been added.1

Three periods may be distinguished in the development of state governments as set forth in the constitutions, each period marked by an increase in the length and minuteness of those instruments.

The first period covers about thirty years from 1776 downwards, and includes the earlier constitutions of the original thirteen states, as well as of Kentucky, Vermont, Tennessee, and Ohio.

Most of these constitutions were framed under the impressions of the Revolutionary War. They manifest a dread of executive power and of military power, together with a disposition to leave everything to the legislature, as being the authority directly springing from the people. The election of a state governor is in most states vested in the legislature. He is nominally assisted, but in reality checked, by a council not of his own choosing. He has not (except in Massachusetts) a veto on the acts of the legislature.2 He has not, like the royal governors of colonial days, the right of adjourning or dissolving it. The idea of giving power to the people directly has scarcely appeared, because the legislature is conceived as the natural and necessary organ of popular government, much as the House of Commons is in England. And hence many of these early constitutions consist of little beyond an elaborate bill of rights and a comparatively simple outline of a frame of government, establishing a representative legislature,3 with a few executive officers and courts of justice carefully separated therefrom.

The second period covers the first half of the present century down to the time when the intensity of the party struggles over slavery (1850–60) interrupted to some extent the natural processes of state development. It is a period of the democratization of all institutions, a democratization due not only to causes native to American soil, such as the rise in the West of new agricultural communities where all the settlers were practically equal, the supremacy in politics of the generation who had, as boys during the Revolutionary War, been permeated by the phrases of 1776, but also to the influence of French republican ideas, an influence which began to decline after 1805 and ended with 1851, since which time French examples and ideas have counted for little or nothing. Such provisions for the maintenance of religious institutions by the state as had continued to exist are now swept away. The principle becomes established (in the North and West) that constitutions must be directly enacted by popular vote. The choice of a governor is taken from the legislature to be given to the people. Property qualifications are abolished,4 and a suffrage practically universal, except that it often excludes free persons of colour, is introduced. Even the judges are not spared. Many constitutions shorten their term of office, and direct them to be chosen by popular vote. The state has emerged from the English conception of a community acting through a ruling legislature, for the legislature begins to be regarded as being only a body of agents exercising delegated and restricted powers, and obliged to recur to the sovereign people (by asking for a constitutional amendment) when it seeks to extend these powers in any particular direction. The increasing length of the constitutions during this half century shows how the range of the popular vote has extended, for these documents now contain a mass of ordinary law on matters which in the early days would have been left to the legislatures.

In the third period, which begins from about the time of the Civil War, a slight reaction may be discerned, not against popular sovereignty, which is stronger than ever, but in the tendency to strengthen the executive and judicial departments as against the legislative. The governor had begun to receive in the second period, and has now in every state but one, a veto on the acts of the legislature. His tenure of office has been generally lengthened; the restrictions on his reeligibility generally removed. In many states the judges have been granted larger salaries, and their terms of office lengthened. Some constitutions have even transferred judicial appointments from the vote of the people to the executive. But the most notable change of all has been the narrowing of the competence of the legislature, and the fettering its action by complicated restrictions. It may seem that to take powers away from the legislature is to give them to the people, and therefore another step towards pure democracy. But in America this is not so, because a legislature is apt to yield to any popular clamour, however transient, while direct legislation by the people involves delay. Such provisions may therefore prove to be conservative in their results, if not in their intention.

This process of development, which first exalted and then depressed the legislature, which extended the direct interference of the people, which changed the constitution itself from a short into a long, a simple into a highly complex document, has of course not yet ended. Forces are already at work which will make the constitutions of forty years hence different from those of today. To conjecture the nature of these forces we must examine a little further the existing constitutions of the states, especially the later among them; and more particularly that remarkable group enacted in 1889 by the six commonwealths which were admitted to the Union in 1889 and 1890, as well as the constitution which Oklahoma gave herself in 1907. We must also distinguish between different types of constitution corresponding to the different parts of the Union in which the states that have framed them are situate.

Three types were formerly distinguishable, the old colonial type, best seen in New England and the older Middle states, the Southern or slave state type (in which the influence of the first Constitution of Virginia was noticeable), and the new or Western type. At present these distinctions are less marked. All the Southern states have given themselves new constitutions since the war; and the differences between these and the new constitutions of the Northwestern and Pacific states are not salient. This is because the economic and social changes produced by the War of Secession and abolition of slavery broke to pieces the old social conditions, and made these Southern states virtually new communities like those of the West. There is still, however, a strong contrast between the New England states, to which for this purpose we may add New Jersey, whose present constitutions all date from the period between 1780 and 1844, and the Southern and Western states, nearly all of whose constitutions are subsequent to that year. In these older states the power of the executive is generally greater. The judges are frequently named by the governor, and not elected by the people. The electoral districts are not always equal. The constitutions are not so minute, and therefore the need of recurring to the people to change them arises less frequently.

Taking the newer, and especially the Western and Southern constitutions, and remembering that each is the work of an absolutely independent body, which (subject to the federal Constitution) can organize its government and shape its law in any way it pleases, so as to suit its peculiar conditions and reflect the character of its population, one is surprised to find how similar these newer instruments are. There is endless variety in details, but a singular agreement in essentials. The influences at work, the tendencies which the constitutions framed since 1865 reveal, are evidently the same over the whole Union. What are the chief of those tendencies? One is for the constitutions to grow longer. This is an absolutely universal rule. Virginia, for instance, put her first constitution, that of 1776, into four closely printed quarto pages, that is, into about three thousand two hundred words. In 1830, she needed seven pages; in 1870, twenty-two pages, or seventeen thousand words; her latest (1902) has thirty-five thousand words. Texas has doubled the length of her constitution from sixteen quarto pages in 1845 to thirty-four in 1876. Pennsylvania was content in 1776 with a document of eight pages, which for those times was a long one; she now requires twenty-three. The Constitution of Illinois filled ten pages in 1818; in 1870 it had swollen to twenty-five. These are fair examples, but the extremes are marked by the Constitution of New Hampshire of 1776, which was of about six hundred words (not reckoning the preamble), and the Constitution of Missouri of 1875 and of South Dakota of 1889, which have each more than twenty-six thousand words. Even these were surpassed by Oklahoma, whose Constitution of 1907 exceeded thirty-three thousand words, and by Louisiana, whose Constitution of 1898 has forty-five thousand. The new constitutions are longer, not only because new topics are taken up and dealt with, but because the old topics are handled in far greater detail. Such matters as education, ordinary private law, railroads, state and municipal indebtedness, were either untouched or lightly touched in the earlier instruments. The provisions regarding the judiciary and the legislature, particularly those restricting the power of the latter, have grown far more minute of late years, as abuses of power became more frequent, and the respect for legislative authority less. As the powers of a state legislature are prima facie unlimited, these bodies can be restrained only by enumerating the matters withdrawn from their competence, and the list grows always ampler. The time might almost seem to have come for prescribing that, like Congress, they should be entitled to legislate on certain enumerated subjects only, and be always required to establish affirmatively their competence to deal with any given topic.

I have already referred to the progress which the newer constitutions show towards more democratic arrangements. The suffrage is now in almost every state enjoyed by all adult males, and in ten by adult females also. Citizenship is quickly and easily accorded to immigrants. And, most significant of all, the superior judges, who were formerly named by the governor, or chosen by the legislature, and who held office during good behaviour, are now in most states elected by the people for fixed terms of years. I do not ignore the strongly marked democratic character of even the first set of constitutions, formed at and just after the Revolution; but that character manifested itself chiefly in negative provisions, i.e., in forbidding exercises of power by the executive, in securing full civil equality and the primordial rights of the citizen. The new democratic spirit is positive as well as negative. It refers everything to the direct arbitrament of the people. It calls their will into constant activity, sometimes by the enactment of laws on various subjects in the constitution, sometimes by prescribing to the legislature the purposes which legislation is to aim at. Even the tendency to support the executive against the legislature is evidence not so much of respect for authority as of the confidence of the people that the executive will be the servant of popular opinion, prepared at its bidding to restrain that other servant—the legislature—who is less trusted, because harder to fix with responsibility for misdoing. On the whole, therefore, there can be no doubt that the democratic spirit is now more energetic and pervasive than it was in the first generation. It is a different kind of spirit. It is more practical, more disposed to extend the sphere of governmental interference, less content to rely on general principles. One discovers in the wording of the most recent constitutions a decline of that touching faith in the efficacy of broad declarations of abstract human rights which marked the disciples of Jeffrson. But if we compare the present with the second or Jacksonian age, it may be said that there has been in progress for some years past a certain reaction, not against democracy but towards a better scheme of democracy, a reaction as yet more discernible in feeling than in tangible results, fainter than the levelling movement of 1820–50, and not likely to restore the state of things that existed before that movement, yet noticeable as showing that the people do learn by experience, and are not indisposed to reverse their action and get clear of the results of past mistakes. The common saying that on the road to democracy there are vestigia nulla retrorsum is not universally true in America.

That there are strong conservative tendencies in the United States is a doctrine whose truth will be illustrated later on. Meantime it is worth while to ask how far the history of state constitutions confirms the current notion that democracies are fond of change. The answer is instructive, because it shows how flimsy are the generalizations which men often indulge in when discussing forms of government, as if all communities with similar forms of government behaved in the same way. All the states of the Union are democracies, and democracies of nearly the same type. Yet while some change their constitutions frequently, others scarcely change theirs at all. Let me recall the reader’s mind to the distinction already drawn between the older or New England type and the newer type, which we find in the Southern as well as the Western states. It is among the latter that changes are frequent. Louisiana, for instance, whose state life began in 1812, has had seven complete new constitutions, without counting the so-called Secession Constitution of 1861. Virginia, Georgia, and South Carolina (original states) have had six each. Kansas, which began in 1855, has had four. Among the Northern states, Pennsylvania (an original state) has had four; Illinois, dating from 1818, three; New York, five; Delaware, four; whereas Connecticut and Rhode Island (both original states), and Maine (dating from 1820), have had only one each, Vermont and New Hampshire, three each. Massachusetts still lives under her Constitution of 1780, which has indeed been amended at various dates, yet not to such an extent as to efface its original features. Of the causes of these differences I will now touch on two only. One is the attachment which in an old and historic, a civilized and well-educated community, binds the people to their accustomed usages and forms of government. It is the newer states, without a past to revere, with a population undisciplined or fluctuating, that are prone to change. In well-settled commonwealths the longer a constiution has stood untouched, the longer it is likely to stand, because the force of habit is on its side, because an intelligent people learns to value the stability of its institutions, and to love that which it is proud of having long ago created.

The other cause is the difference between the swiftness with which economic and social changes move in different parts of the country. They are the most constant sources of political change, and find their natural expression in alterations of the constitution. Such changes have been least swift and least sudden in the New England and Middle states, though in some of the latter the growth of great cities, such as New York and Philadelphia, has induced them, and induced therewith a tendency to amend the constitutions so as to meet new conditions and check new evils. They have been most marked in regions where population and wealth have grown with unexampled speed, and in those where the extinction of slavery has changed the industrial basis of society. Here lies the explanation of the otherwise singular fact that several of the original states, such as Virginia and Georgia, have run through many constitutions. These whilom slave states have not only changed greatly but changed suddenly. Society was dislocated by the Civil War, and has had to make more than one effort to set itself right.

The total number of distinct constitutions adopted in 1776 or enacted in the several states from that year down till 1909—the states being then 13 and in the latter 46 in number—is 127; and to these constitutions a vast number of amendments have been at different times adopted.5 The period since 1860 shows a somewhat greater frequency of change than the eighty-four years preceding; but that may be accounted for by the effects of the war on the Southern states. The average duration of a constitution has been estimated at thirty years, and there are now seven which have lasted more than sixty years. Both whole constitutions and particular amendments are frequently rejected by the people when submitted to them at the polls. This befel six draft constitutions and more than twenty-eight amendments between 1877 and 1887.

Putting all these facts together, and bearing in mind to how large an extent the constitutions now, whether wisely or foolishly, embody ordinary private and administrative law and therefore invite amendment, the American democracy seems less inclined to changefulness and inconstancy than either abstract considerations or the descriptions of previous writers, such as Tocqueville, would have led us to expect. The respect for these fundamental instruments would no doubt be greater if the changes in them were even fewer, and the changes would be fewer if the respect were greater; but I see little reason to think that the evil is increasing.

A few more observations on what the constitutions disclose are needed before I conclude this necessarily brief sketch of the most instructive sources for the history of popular government which the nineteenth century produced—documents whose clauses, while they attempt to solve the latest problems of democratic commonwealths, often recall the earliest efforts of our English forefathers to restrain the excesses of mediæval tyranny.

The constitutions witness to a singular distrust by the people of its own agents and officers, not only of the legislatures but also of local authorities, as well rural as urban, whose powers of borrowing or undertaking public works are strictly limited. Even the judges are in some states restrained in their authority to commit for contempt of court, and three recent constitutions contain severe provisions against abuse of his veto and appointing power by the governor, and against bribery offered to or by him.6

They witness also to a jealousy of the federal government. By most constitutions a federal official is made incapable, not only of state office, but of being a member of a state legislature. These prohibitions are almost the only references to the national government to be found in the state constitutions, which so far as their terms go might belong to independent communities. They usually talk of corporations belonging to other states as “foreign,” and sometimes try to impose special burdens on them.

They show a wholesome anxiety to protect and safeguard private property in every way. The people’s consciousness of sovereignty has not used the opportunity which the enactment of a constitution gives to override private rights; there is rather a desire to secure such rights from any encroachment by the legislature: witness the frequent provisions against the taking of property without due compensation, and against the passing of private or personal statutes which could unfairly affect individuals. The only exceptions to this rule are to be found in the case of anything approaching a monopoly, and in the case of wealthy corporations. But the “monopolist” is regarded as the enemy of the ordinary citizen, whom he oppresses; and the corporation—it is usually corporations that are monopolists—is deemed not a private person at all, but a sort of irresponsible tyrant whose resources enable him to overreach the law. Corporations are singled out for special taxation and are evidently the objects of growing suspicion and hostility, for the newer constitutions multiply provisions for holding them in check and keeping them under close supervision. Michigan and Mississippi limit their duration. Oklahoma denies them the rights of ordinary citizens before the courts; some states forbid trustees to invest in corporate securities. Labour laws are enacted to apply to them only. A remarkable instance of this dread of monopolies is to be found in the Constitution of Illinois of 1870, with its provisions anent grain elevators, warehouses, and railroads.7 The newer constitutions of other Western states, such as California and Texas, are not less instructive in this respect. Nor is it surprising that efforts should be made in some of the more recent instruments to strike at the combinations called “trusts.”

The extension of the sphere of state interference, with the corresponding departure from the doctrine of laissez faire is a question so large and so interesting as to require a chapter to itself in my second volume. Here it may suffice to remark, that some departments of governmental action, which on the continent of Europe have long been handled by the state, are in America still left to private enterprise. For instance, the states neither own nor manage railways, or telegraphs, or mines, or forests, and they sell their public lands instead of working them. There is, nevertheless, visible in recent constitutions a strong tendency to extend the scope of public administrative activity. Most of the newer instruments establish not only railroad commissions, intended to control the roads in the interest of the public, but also bureaux of agriculture, labour offices, mining commissioners, land registration offices, dairy commissioners, insurance commissioners, and agricultural or mining colleges. And a reference to the statutes passed within the last few years in the Western states will show that more is being done in this direction by the legislatures, as exponents of popular sentiment, than could be gathered from the older among the Western constitutions.

A spirit of humanity and tenderness for suffering, very characteristic of the American people, appears in the directions which many constitutions contain for the establishment of charitable and reformatory institutions, and for legislation to protect children.8 Sometimes the legislature is enjoined to provide that the prisons are made comfortable; or directions are given that homes or farms be provided as asylums for the aged and unfortunate.9 On the other hand, this tenderness is qualified by the judicious severity which in most states debars persons convicted of crime from the electoral franchise. Lotteries are stringently prohibited by some of the recent constitutions.

In the older Northern constitutions, and in nearly all the more recent constitutions of all the states, ample provision is made for the creation and maintenance of schools. Even universities are the object of popular zeal, though a zeal not always according to knowledge. Most Western constitutions direct their establishment and support from public funds or land grants.10 Some of the later constitutions contain significant provisions intended to propitiate labour. Thus Wyoming, California, Utah, and Idaho declare that eight hours shall be a lawful day’s work on all state and municipal works, Wyoming adding “in all mines.” Many prohibit the letting out of convict labour; and several prohibit contracts by which employers may attempt to escape from liability for accidents to their workpeople. Mississippi abolishes (1890), so far as concerns railroads, the established legal doctrine of an employer’s nonliability for accidents caused to a workman by the fault of a fellow workman.

Although a constitution is the fundamental and supreme law of the state, one must not conclude that its provisions are any better observed and enforced than those of an ordinary statute. When an offence is thought worthy of being specially mentioned in a constitution, this happens because it is specially frequent, and because it is feared that the legislature may shrink from applying due severity to repress it, or the public prosecuting authorities may wink at it.11 Certain it is that in many instances the penalties threatened by constitutions fail to attain their object. For instance, the constitutions of most of the Southern states have for many years past declared duellists, and even persons who abet a duel by carrying a challenge, incapable of office, or of sitting in the legislature. This may have checked the formal duel by challenge, which is now rarely heard of, but the practice of private warfare does not seem to have declined in Mississippi, Texas, or Arkansas, where these provisions exist. Virginia had such a provision in her Constitution of 1830. She repeated it in her Constitution of 1850, adding, however, that the disqualification should not attach to those who had offended previously—i.e., in violation of the Constitution of 1830.12 Shooting at sight, not uncommon in some parts, is neither morally nor socially an improvement on duelling, though apparently exempt from these constitutional penalties.

New York has been so much exercised on the subject of bribery and corruption, as to declare (amendments of 1874), not only that every member of the legislature and every officer shall take an oath that he has given nothing as a consideration for any vote received for him, and that the legislature shall pass laws excluding from the suffrage all persons convicted of bribery or of any infamous crime but also that the giving or offering to or receiving by an officer of any bribe shall be a felony. These provisions are further strengthened in her Constituion of 1894. The recent constitutions of North Dakota, Montana, and Wyoming declare logrolling to be bribery. South Dakota requires her legislators and officers to swear that they have not received and will not receive a free pass over a railroad for any vote or influence they may give, while Kentucky deprives of office (ipso facto) any legislative public officer or judge who accepts such a favour. And lobbying, which is openly practised in every building where a legislature meets, is declared by California to be a felony, and by Georgia to be a crime.

chapter 39

Direct Legislation by the People

The difficulties and defects inherent in the method of legislating by a constitution are obvious enough. Inasmuch as the people cannot be expected to distinguish carefully between what is and what is not proper for a fundamental instrument, there arises an inconvenient as well as unscientific mixture and confusion of private law and administrative regulation with the frame of government and the general doctrines of public law. This mixture, and the practice of placing in the constitution directions to the legislature to legislate in a certain sense, or for certain purposes, embarrass a legislature in its working by raising at every turn questions of its competence to legislate, and of the agreement between its acts and the directions contained in the constitution. And as the legislature is seldom either careful or well-advised, there follows in due course an abundant crop of questions as to the constitutionality of statutes, alleged by those whom they affect prejudicially in any particular instance to be either in substance inconsistent with the constitution, or such as the legislature was expressly forbidden by it to pass. These inconveniences are no doubt slighter in America than they would be in Europe, because the lawyers and the judges have had so much experience in dealing with questions of constitutional conflict and ultra vires legislation that they now handle them with amazing dexterity. Still, they are serious, and such as a well-ordered government ought to avoid. The habit of putting into the constitution matters proper for an ordinary statute has the further disadvantage that it heightens the difficulty of correcting a mistake or supplying an omission. The process of amending a constitution even in one specific point is a slow one, to which neither the legislature, as the proposing authority, nor the people, as the sanctioning authority, willingly resort. Hence blemishes remain and are tolerated, which a country possessing, like England, a sovereign legislature would correct in the next session of Parlament without trouble or delay.

It is sometimes difficult to induce the people to take a proper interest in the amendment of the constitution. In those states where a majority of all the qualified voters, and not merely of those voting, is required to affirm an amendment, it often happens that the requisite majority cannot be obtained owing to the small number who vote.1 This has its good side, for it is a check on hasty or frequent change. But it adds greatly to the difficulty of working a rigid or supreme constitution, that you may find an admitted, even if not very grave evil, to be practically irremovable, because the mass of the people cannot be induced to care enough about the matter to come to the polls, and there deliver their judgment upon it.

These defects are so obvious that we are entitled to expect to find correspondingly strong grounds for the maintenance, and indeed the steady extension of the plan of legislating by and through a constitution. What are these grounds? Why does American practice tend more and more to remove legislation from the legislature and entrust it to the people?

One could quite well imagine the several state governments working without fundamental instruments to control them. In a federal government which rests on, or at least which began from, a compact between a number of originally separate communities, the advantages of having the relations of these communities to one another and to the central authority defined by an instrument placed beyond the reach of the ordinary legislature, and not susceptible of easy change, are clear and strong. Such an instrument is the guarantee for the rights of each member placed above the impulses of a chance majority. The case is quite different when we come to a single homogeneous community. Each American state might now, if it so pleased, conduct its own business, and govern its citizens as a commonwealth “at common law,” with a sovereign legislature, whose statutes formed the highest expression of popular will. Nor need it do so upon the cabinet system of the British colonies. It might retain the separation from the legislature of the executive governor, elected by the people, and exercising his veto on their behalf, and yet dispense altogether with a rigid fundamental constitution, being content to vest in its representatives and governor the plenitude of its own powers. This, however, no American state does, or has ever done, or is likely to do. And the question why it does not suggests a point of interest for Europeans as well as for Americans.

In the republics of the ancient world, where representative assemblies were unknown, legislative power rested with the citizens meeting in what we should now call primary assemblies, such as the Ecclesia of Syracuse or the Comitia of Rome. The same plan prevailed in the early Teutonic tribes, where the assembly of the freemen exercised all such powers as did not belong to the king. The laws of the kings of the Angles and Saxons, the capitularies of Charlemagne, were promulgated in assemblies of the nation, and may be said, though emanating from the prince, to have been enacted by the people. During the Middle Ages, these ancient assemblies died out, and the right of making laws passed either to the sovereign or to a representative assembly surrounding the sovereign, such as the English Parliament, the older scheme surviving only in such primitive communities as some of the Swiss cantons. The first reappearance in modern Europe of the scheme of direct legislation by the people is, so far as I know, the provision of the French Constitution framed by the National Convention in 1793, which directs that any law proposed by the legislative body shall be published and sent to all the communes of the Republic, whose primary assemblies shall be convoked to vote upon it, in case objections to it have been raised by one-tenth of these primary assemblies in a majority of the departments. In recent times the plan has become familiar by its introduction, not only into most of the cantons of Switzerland, but into the Swiss Federal Republic, which constantly applies it, under the name of referendum, by submitting to the vote of the people laws passed by the federal legislature.2

In Britain the influence of the same idea may be discovered in two phenomena of recent years. One is the proposal frequently made to refer to the direct vote of the inhabitants of a town or other local area the enactment of some ordinance affecting that district: as, for instance, one determining whether a rate shall be levied for a free library, or whether licences shall be granted for the sale, within the district, of intoxicating liquors. This method of deciding an issue, commonly known as local option, is a species of referendum. It differs from the Swiss form, not merely in being locally restricted, but rather in the fact that it is put to the people, not for the sake of confirming an act of the legislature, but of deciding whether a particular act shall be operative in a given area. But the principle is the same; it is a transference of legislative authority from a representative body, whether the parliament of the nation or the municipal council of the town (as the case may be), to the voters at the polls.

The other English illustration may seem far fetched, but on examination will be seen to involve the same idea. It is now beginning to be maintained as a constitutional doctrine, that when any large measure of change is carried through the House of Commons, the House of Lords has a right to reject it for the purpose of compelling a dissolution of Parliament, that is, an appeal to the voters. The doctrine is as warmly denied as it is asserted; but the material point is that many educated men contend that the House of Commons is not morally, though of course it is legally, entitled to pass a bill seriously changing the Constitution, which was not submitted to the electors at the preceding general election. A general election, although in form a choice of particular persons as members, has now practically become an expression of popular opinion on the two or three leading measures then propounded and discussed by the party leaders, as well as a vote of confidence or no confidence in the ministry of the day. It is in substance a vote upon those measures; although, of course, a vote only on their general principles, and not, like the Swiss referendum, upon the statute which the legislature has passed. Even therefore in a country which clings to and founds itself upon the absolute supremacy of its representative chamber, the notion of a direct appeal to the people has made progress.3

In the United States, which I need hardly say has in this matter been nowise affected by France or Switzerland or England, but has developed on its own lines, the conception that the people (i.e., the citizens at large) are and ought of right to be the supreme legislators, has taken the form of legislation by enacting or amending a constitution. Instead of, like the Swiss, submitting ordinary laws to the voters after they have passed the legislature, the Americans take subjects which belong to ordinary legislation out of the category of statutes, place them in the constitution, and then handle them as parts of this fundamental instrument. They are not called laws; but laws they are to all intents and purposes, differing from statutes only in being enacted by an authority which is not a constant but an occasional body, called into action only when a convention or a legislature lays propositions before it.

I have already explained the historical origin of this system, how it sprang from the fact that the constitutions of the colonies having been given to them by an external authority superior to the colonial legislature, the people of each state, seeing that they could no longer obtain changes in their constitution from Britain, assumed to themselves the right and duty of remodelling it; putting the collective citizendom of the state into the place of the British Crown as sovereign. The business of creating or remodelling an independent commonwealth was to their thinking too great a matter to be left to the ordinary organs of state life. This feeling, which had begun to grow from 1776 onwards, was much strengthened by the manner in which the federal Constitution was enacted in 1788 by state conventions. It seemed to have thus received a specially solemn ratification; and even the federal legislature, which henceforth was the centre of national politics, was placed far beneath the document which expressed the will of the people as a whole.

As the Republic went on working out both in theory and in practice those conceptions of democracy and popular sovereignty which had been only vaguely apprehended when enunciated at the Revolution, the faith of the average man in himself became stronger, his love of equality greater, his desire, not only to rule, but to rule directly in his own proper person, more constant. These sentiments would have told still further upon state governments had they not found large scope in local government. However, even in state affairs they made it (in the Northern states) an article of faith that no constitution could be enacted save by the direct vote of the citizens; and they inclined the citizens to seize such chances as occurred of making laws for themselves in their own way. Concurrently with the growth of these tendencies there had been a decline in the quality of the state legislatures, and of the legislation which they turned out. They were regarded with less respect; they inspired less confidence. Hence the people had the further excuse for superseding the legislature, that they might reasonably fear it would neglect or spoil the work they desired to see done.

Instead of being stimulated by this distrust to mend their ways and recover their former powers, the state legislatures fell in with the tendency, and promoted their own supersession. The chief interest of their members, as will be explained later, is in the passing of special or local acts, not of general public legislation. They are extremely timid, easily swayed by any active section of opinion, and afraid to stir when placed between the opposite fires of two such sections, as for instance, between the Prohibitionists and the liquor sellers. Hence they welcomed the direct intervention of the people as relieving them of embarrassing problems. They began to refer to the decision of a popular vote matters clearly within their own proper competence, such as the question of liquor traffic, or the creation of a system of gratuitous schools. This happened as far back as 1850–60. Presently they began to wash their hands by the same device of the troublesome and jealousy-provoking question where the capital of the state, or its leading public institutions, should be “located.” 4 In New York, the legislature having been long distracted and perplexed by the question whether articles made by convicts in the state prisons should be allowed to be sold, and so to compete with articles made by private manufacturers, recently resolved to invite the opinion of the multitude, and accordingly passed an act under which the question was voted on over the whole state. They could not (except of course by proposing a constitutional amendment) enable the people to legislate on the point; for it has been often held by American courts that the legislature, having received a delegated power of lawmaking, cannot delegate that power to any other person or body.5 But they could ask the people to advise them how they should legislate; and having obtained its view in this manner, could pass a statute in conformity with its wishes.

The methods by which legislative power is directly vested in the American voters are four. The first is the enactment or amendment by them of a constitution. Here the likeness to the Swiss referendum is close, because the particular provision to be enacted is first drafted and passed by the convention or legislature (as the case may be) and then submitted to the people. How wide the scope of this method is will be realized by one who has followed the account already given of the number and variety of the topics dealt with by state constitutions.

It is not uncommon for proposals submitted by the legislature in the form of constitutional amendments to be rejected by the people. Thus in Indiana, Nebraska, (twice in) Ohio, and Oregon, the legislature submitted amendments extending the suffrage to women, and the people in all four states refused the extension. So West Virginia by her Constitution of 1872, and South Dakota by hers of 1889, submitted proposals for proportional representation, which failed of acceptance.6

The second method is the submission to popular vote, pursuant to the provisions of the constitution, of a proposal or proposals therein specified. If such a proposal has been first passed by the legislature, we have here also a case resembling the Swiss referendum. If, however, the legislature have not given their decision on the proposal, but the popular vote at the polls takes place in obedience to a direction in that behalf contained in the constitution, this is not strictly a referendum, but a case of legislation by the people alone, as if the voters of the state were all gathered in one assembly. Examples of this method, in both its forms, abound in the more recent constitutions. So far back as 1848 we find Wisconsin referring it to the voters to decide whether or no banks shall be chartered.7 Minnesota declares that a certain class of railway laws shall not take effect unless submitted to and ratified by a majority of the electors. And she provides, by a later amendment to her constitution, that “the moneys belonging to the internal improvement land fund shall never be appropriated for any purpose till the enactment for that purpose shall have been approved by a majority of the electors of the State, voting at the annual general election following the passage of the Act.” 8 In this last instance the referendum goes the length of constituting the voters the ultimate financial authority for the state, withdrawing from the legislature what might seem the oldest and most essential of its functions. So in not a few states no debts beyond a certain specified amount may be contracted except in pursuance of a vote of the people, and in others the rate of taxation is limited by fixing it at a certain ratio to the total valuation of the state, subject to a power to increase the same by popular vote. And in California no law changing the seat of the state government is valid unless approved by the people.

The third and fourth methods are more recent than either of the preceding and mark a further long step in the extension of direct popular action. One is the true Swiss referendum, i.e., the submission to the people for their approval or rejection of ordinary laws passed by the state legislature; the other the Swiss initiative, i.e., a power for a certain proportion of voters to propose either ordinary laws or amendments to the state constitution. The state which has gone farthest in this path is Oklahoma, admitted to the Union in 1907. In her constitution (§ 52), “the people reserve to themselves the power to propose laws and amendments to the Constitution and to enact or reject the same at the polls independent of the Legislature, and also reserve power at their own option to approve or reject at the polls any act of the legislature (§ 53). The first power reserved by the people is the Initiative, and eight per centum of the legal voters shall have the right to propose any legislative measure and fifteen per centum of the legal voters shall have the right to propose amendments to the Constitution by petition. . . . The second power is the Referendum, and it may be ordered (except as to laws necessary for the immediate preservation of the public peace, health, or safety) either by petitions signed by five per centum of the legal voters or by the Legislature as other bills are enacted.” The veto power of the governor is not to extend to measures voted on by the people. The referendum may be demanded against items or parts of a bill. Montana, Oregon, Nevada, South Dakota, and Utah have also referendum provisions generally similar.

In Oregon, the state which has made most use of these new methods, since the initiative and referendum were introduced in 1904, the people had down to the end of 1912 voted upon 76 initiative proposals, of which 33 were carried and 43 rejected; also upon 11 referendum proposals submitted either on demand of 5 per cent of the voters or referred to the voters by the legislature. Of these, 5 were carried and 6 rejected.9 In Oregon the governor has no veto on popular votes. Arguments prepared for and against proposals so submitted may be prepared and printed by the proposers and opponents, the cost of posting a copy to every voter being paid by the state.

The same principle of popular vote has been widely applied to local as well as to state government. Oklahoma applies it to every county and district, and to every municipality. Many recent constitutions provide that the approval of the people at the polls shall be needed in order to validate a decision of the city, or county, or school district, or township authority regarding borrowing, or taxing, or lending public funds to some enterprise it may be desired to assist. Licensing questions are usually left to popular determination alone, with no interference by the local representative authority: while as respects municipal government, California took the novel course of allowing cities of more than ten thousand inhabitants to make their own charters, by a drafting board of fifteen freeholders and a ratifying vote of the people, the state legislature having only a veto on the charter en bloc.10 Other states have followed.

The application of the same principle to smaller areas has the advantage of defeating many jobs which local councils might desire to put through, but may impose on the average voter a heavier burden than his knowledge and capacity fit him to bear. For instance at a municipal election in the city of Portland, Oregon, in June 1909, the elector had to decide not only between twenty-five candidates for six offices, but also to vote on thirty-five distinct and separate legislative propositions, some of them relating to matters of small administrative detail.11

Thus the ancient scheme of vesting ordinary legislative power, as well as constitution-making power, in the whole body of citizens has been now (1913) adopted by seventeen states and seems likely to in other states also, for it finds favour as a legitimate development of the principle of popular sovereignty. It is advocated with special zeal by many of the leaders of the Labour party or those who promote such legislation as that party desires.

What are the practical advantages of this plan of direct legislation by the people in its various forms? Its demerits are obvious. Besides those I have already stated, it might be expected to lower the authority and sense of responsibility in the legislature; and it refers matters needing much elucidation by debate to the determination of those who cannot, on account of their numbers, meet together for discussion, and many of whom may have never thought about the matter. These considerations will to most Europeans appear decisive against it. The proper course, they will say, is to improve the legislatures. The less you trust them, the worse they will be. They may be ignorant; yet not so ignorant as the masses.

But the improvement of the legislatures is just what the Americans despair of, or, as they would prefer to say, have not time to attend to. Hence they fall back on the direct popular vote as the best course available under the circumstances of the case, and in such a world as the present. Though some claim that it has an educative effect on the people, this is not the argument chiefly employed to advocate it. The ground taken is rather this, that the mass of the people are equal in intelligence and character to the average state legislator, and are exposed to fewer temptations. The legislator can be “got at,” the people cannot. The personal interest of the individual legislator in passing a measure for chartering banks or spending the internal improvement fund may be greater than his interest as one of the community in preventing bad laws. It will be otherwise with the bulk of the citizens. The legislator may be subjected by the advocates of women’s suffrage or liquor prohibition to a pressure irresistible by ordinary mortals; but the citizens are too numerous to be all wheedled or threatened. Hence they can and do reject proposals which the legislature has assented to. Nor should it be forgotten that in a country where law depends for its force on the consent of the governed, it is eminently desirable that law should not outrun popular sentiment, but have the whole weight of the people’s deliverance behind it.12

A brilliant, though severe, critic of Canadian institutions deplores the want of some similar arrangement in the several provinces of the dominion. Having remarked that the veto of the lieutenant-governor on the acts of a provincial legislature is in practice a nullity, and that the central government never vetoes such acts except where they are held to exceed the constitutional competence of the legislature, he urges that what is needed to cure the faults of provincial legislation is to borrow the American plan of submitting constitutional amendments (and, it may now be added, laws also) to popular vote. “The people cannot be lobbied, wheedled, or bull-dozed; the people is not in fear of its re-election if it throws out something supported by the Irish, the Prohibitionist, the Catholic, or the Methodist vote.” 13

If the practice of recasting or amending state constitutions were to grow common, and if the initiative and referendum were to grow common, one of the advantages of direct legislation by the people would disappear, for the sense of permanence would be gone, and the same mutability which is now possible in ordinary statutes would become possible in the provisions of the fundamental law, the habit of passing ordinary laws under momentary impulse might prove mischievous. But this fault of small democracies,14 especially when ruled by primary assemblies, is unlikely to recur in large democracies, such as most states have now become, nor does it seem to be on the increase among them. Reference to the people, therefore, acts as a conservative force; that is to say, there may be occasions when a measure which a legislature would pass, either at the bidding of a heated party majority or to gain the support of a group of persons holding the balance of voting power, or under the covert influence of those who seek some private advantage, will be rejected by the whole body of the citizens because their minds are cooler or their view of the general interest less biased by special predilections or interests.

In England, and indeed in most European countries, representative government has been hitherto an institution with markedly conservative elements, because the legislating representatives have generally belonged to the wealthy or well-born and educated classes, who, having something to lose by change, are disinclined to it, who have been looked up to by the masses, and who have been imperfectly responsive to popular impulses. American legislatures have none of these features. The men are not superior to the multitude, partly because the multitude is tolerably educated and tolerably well off. The multitude does not defer to them. They are horribly afraid of it, and indeed of any noisy section in it. They live in the breath of its favour; they hasten to fulfil its behests almost before they are uttered. Accordingly an impulse or passion dominant among the citizens may tell at once on the legislature, and find expression in a law, the only checks being, not the caution of that body and its willingness to debate at length, but the power of some powerful group to stop a measure it dislikes, or possibly, the wisdom of a strong governor who may veto a bill which he thinks the people ought to have more time to consider. It may also happen that the legislature proves incapable of embodying in a practical form the wishes manifested by the people. Hence in the American states representative government has by no means that conservative quality which Europeans ascribe to it, whereas the direct vote of the people is the vote of men who are generally better instructed than the European masses, more experienced in politics, more sensible of their interest in the stability of the country. In its effect upon the state legislature, the referendum may therefore, in some states at least, be rather a bit and bridle than a spur. But in the new communities of the West it is more likely to be used as a means of effecting changes which they do not expect to get so speedily from the legislature in the drastic form and with the promptitde which they desire.

This method of legislation by means of a constitution or amendments thereto, arising from sentiments and under conditions in many respects similar to those which have produced the referendum in Switzerland, is an interesting illustration of the tendency of institutions, like streams, to wear their channels deeper. A historical accident, so to speak, suggested to the Americans the subjection of their legislatures to a fundamental law; and after a while the invention came to be used for other purposes far more extensively than its creators foresaw. It became, moreover, serviceable in a way which those who first used it did not contemplate, though they are well pleased with the result. It acts as a restraint not only on the vices and follies of legislators, but on the people themselves. Having solemnly bound themselves by their constitution to certain rules and principles, the people come to respect those principles. They have parted with powers which they might be tempted in a moment of excitement, or under the pressure of suffering, to abuse through their too pliant representatives; and although they can resume these powers by enacting a new constitution or amending the old one, the process of resumption requires time, and involves steps which secure care and deliberation, while allowing passion to cool, and the prospect of a natural relief from economic evils to appear. Thus the completeness and consistency with which the principle of the direct sovereignty of the whole people is carried out in America has checked revolutionary tendencies, by pointing out a peaceful and legal method for the effecting of political or economical changes. So much may be said as to the states that have remained content with the process of legislation by amendments in constitutions. But now some of the more experimentally minded states have gone further. They have simplified the process of direct popular legislation by getting rid of the machinery of a convention and of legislatively drafted amendments, and they empower the people to vote directly on whatever proposal a percentage of the citizens may propose or whatever law an even smaller percentage may require to have submitted for the expression of the people’s will. The initiative and referendum are natural developments of the process which began with the introduction into constitutions of what were really ordinary laws, and no one can tell how far the new movement may spread.

State constitutions, considered as laws drafted by a convention and enacted by the people at large, are better both in form and substance than laws made by the legislature, because they are the work of abler, or at any rate of honester, men, acting under a special commission which imposes special responsibilities on them. The appointment of a constitutional convention excites general interest in a state. Its functions are weighty, far transcending those of the regular legislature. Hence some of the best men in the state desire a seat in it, and, in particular, eminent lawyers become candidates, knowing how much it will affect the law they practise. It is therefore a body superior in composition to either the Senate or the House of a state. Its proceedings are followed with closer attention; and it is exempt from the temptations with which the power of disposing of public funds or public utilities bestrews the path of ordinary legislators; its debates are more instructive; its conclusions are more carefully weighed, because they cannot be readily reversed.15 Or if the work of altering the constitution is carried out by a series of amendments, these are likely to be more fully considered by the legislature than ordinary statutes would be, and to be framed with more regard to clearness and precision.

In the interval between the settlement by the convention of its draft constitution, or by the legislature of its draft amendments, and the putting of the matter to the vote of the people, there is copious discussion in the press and at public meetings, so that the citizens often go well prepared to the polls. An all-pervading press does the work which speeches did in the ancient republics, and the fact that constitutions and amendments so submitted are frequently rejected, shows that the people, whether they act wisely or not, do not at any rate surrender themselves blindly to the judgment of a convention, or obediently adopt the proposals of a legislature.

These merits are indeed not always claimable for conventions, or, in particular, for the more recent constitutions they have framed, much less for individual amendments. The Constitution of California of 1879 (whereof more in a later chapter) is an instance to the contrary; nor have the subsequent conventions even of such old states as Louisiana and Kentucky shown all the judgment that the problems before them required. But a general survey of this branch of our inquiry leads to the conclusion that the peoples of the several states, in the exercise of this their highest function, have not, on the whole, shown much of that haste, that recklessness, that love of change for the sake of change, with which European theorists, both ancient and modern, have been wont to credit democracy; and that the method of direct legislation by the citizens, liable as it doubtless is to abuse, causes, in the present condition of the states, fewer evils than it prevents.

It would doubtless be better, if good legislatures were attainable, to leave the enactment of what are really mere statutes to the legislature, instead of putting them in a constitution; and the initiative is a supersession of the legislature which tends even more to reduce its authority. But if good legislatures are unattainable, if it is impossible to raise the Senate and the House of each state above that low level at which (as we shall presently see) they now stand, then the system of direct popular action may be justified at least in some communities as a salutary effort of the forces which make for good government, opening for themselves a new channel.

In making the referendum and initiative parts of the regular machinery of government instead of applying the popular vote only to the amendment of constitutions, Oregon, Oklahoma, and the other Western states above referred to, have taken what may prove to be a momentous new departure, for the will of the sovereign people can through these methods express itself far more promptly and easily than heretofore. Some American publicists argue that to empower the people of a state to set aside their legislature when they are so disposed is virtually to abandon that “republican form of government” which was in 1787 supposed to be identical with a representative form. This contention ceases to be plausible when it is remembered that the oldest republics in the world, and many of the most famous, were ruled by primary, not by representative, assemblies. A more serious question has been raised by those who doubt the wisdom of arrangements that leave so much to the vote of a multitude which may act hastily, excited by the prospect of some benefit to be obtained, some grievance to be removed, through a sweeping and perhaps insufficiently debated change in the law.

The risk of careless and even reckless measures is undeniable. But they may, in some states, be just as likely to proceed from a legislature as from the people voting at the polls, for the average of knowledge and judgment is not substantially lower among the voters than among those who compose the legislatures; and the safeguards provided by the rules restraining legislative action cannot always be relied upon.

We must wait and watch for some time before venturing to pronounce a judgment upon the working of these new expedients; nor does the experience of Switzerland furnish much guidance, so dissimilar are the social conditions and the political habits of the two nations.16

chapter 40

State Governments: The Legislature

The similarity of the frame of government in the forty-eight republics which make up the United States, a similarity which appears the more remarkable when we remember that each of the republics is independent and self-determined as respects its frame of government, is due to the common source whence the governments flow. They are all copies, some immediate, some mediate, of ancient English institutions, viz., chartered self-governing corporations, which, under the influence of English habits, and with the precedent of the English parliamentary system before their eyes, developed into governments resembling that of England in the eighteenth century. Thirteen colonies had up to 1776 been regulated by a charter from the British Crown, which, according to the best and oldest of all English traditions, allowed each the practical management of its own affairs. The charter contained a sort of skeleton constitution, which usage had clothed with nerves, muscles, and sinews, till it became a complete and symmetrical working system of free government. There was in each a governor, in two colonies chosen by the people,1 in the rest nominated by the Crown; there was a legislature; there were executive officers acting under the governor’s commission and judges nominated by him; there were local self-governing communities. In none, however, did there exist what we call cabinet government, i.e., the rule of the legislature through a committee of its own members, coupled with the irresponsibility of the permanent nominal head of the executive. This separation of the executive from the legislature, which naturally arose from the fact that the governor was an officer directly responsible to another power than the colonial legislature, viz., the British Crown, his own master to whom he stood or fell,2 distinguishes the old colonial governments of North America from those of the British colonies of the present day, in all of which cabinet government prevails.3 The latter are copies of the present Constitution of England; the fomer resembled it as it existed in the first half of the eighteenth century before cabinet government had been fully developed.

When the thirteen colonies became sovereign states at the Revolution, they preserved this frame of government, substituting a governor chosen by the state for one appointed by the Crown. As the new states admitted to the Union after 1789 successively formed their constitutions prior to their admission to the Union, each adopted the same scheme, its people imitating, as was natural, the older commonwealths whence they came, and whose working they understood and admired.4 They were the more inclined to do so because they found in the older constitutions that sharp separation of the executive, legislative, and judicial powers which the political philosophy of those days taught them to regard as essential to a free government, and they all take this separation as their point of departure.

I have observed in an earlier chapter that the influence on the framers of the federal Constitution of the examples of free government which they found in their several states, had been profound. We may sketch out a sort of genealogy of governments as follows:

• First. The English incorporated company, a self-governing body, with its governor, deputy-governor, and assistants chosen by the freemen of the company, and meeting in what is called the general court or assembly.
• Next. The colonial government, which out of this company evolves a governor or executive head and a legislature, consisting of representatives chosen by the citizens and meeting in one or two chambers.
• Thirdly. The state government, which is nothing but the colonial government developed and somewhat democratized, with a governor chosen originally by the legislature, now always by the people at large, and now in all cases with a legislature of two chambers. From the original thirteen states this form has spread over the Union and prevails in every state.
• Lastly. The federal government, modelled after the state governments, with its president chosen, through electors, by the people, its two-chambered legislature, its judges named by the president.5

Out of such small beginnings have great things grown.

It would be endless to describe the minor differences in the systems of the several states. I will sketch the outlines only, which, as already observed, are in the main the same everywhere.

Every state has:

• An executive elective head, the governor
• A number of other administrative officers
• A legislature of two houses
• A system of courts of justice
• Various subordinate local self-governing communities, counties, cities, townships, villages, school districts

The governor and the other chief officials are not now chosen by the legislature, as was the case under most of the older state constitutions, but by the people. They are as far as possible disjoined from the legislature. Neither the governor nor any other state official can sit in a state legislature.6 He cannot lead it. It cannot, except of course by passing statutes, restrain him. There can therefore be no question of any government by ministers who link the executive to the legislature according to the system of the free countries of modern Europe and of the British colonies.

Of these several powers it is best to begin by describing the legislature, because it is by far the strongest and most prominent.

An American state legislature always consists of two houses, the smaller called the Senate, the larger usually called the House of Representatives, though in six states it is entitled “the Assembly,” and in three “the House of Delegates.” The origin of this very interesting feature is to be sought rather in history than in theory. It is due partly to the fact that in some colonies there had existed a small governor’s council in addition to the popular representative body, partly to a natural disposition to imitate the mother country with its Lords and Commons, a disposition which manifested itself both in colonial days and when the revolting states were giving themselves new constitutions, for up to 1776 some of the colonies had gone on with a legislature of one house only. Now, however, the need for two chambers has become an axiom of political science, being based on the belief that the innate tendency of an assembly to become hasty, tyrannical, and corrupt, needs to be checked by the coexistence of another house of equal authority. The Americans restrain their legislatures by dividing them, just as the Romans restrained their executive by substituting two consuls for one king. The only states that ever tried to do with a single house were Pennsylvania, Georgia, and Vermont, all of whom gave it up: the first after four years’ experience, the second after twelve years, the last after fifty years.7 It is with these trifling exceptions the quod semper, quod ubique, quod ab omnibus of American constitutional doctrine.8

Both houses are chosen by popular vote, generally9 in equal electoral districts, and by the same voters, although in a few states there are minor variations as to modes of choice.10 Illinois by her Constitution of 1870 created a system of proportional representation by means of the cumulative vote; i.e., the elector may cast as many votes for any one candidate as there are representatives to be elected in the district, or may distribute his votes among the candidates. The plan was suggested to the people of Illinois, by the fact that the northern counties (called Canaan) had usually had a Republican, the southern (called Egypt) a Democratic, majority, so that there were special reasons for breaking the party solidity of each section. So far as I have been able to gather, experience has not commended the scheme, and it has not improved the quality of the legislature.

The following differences between the rules governing the two houses are general:

• 1. The senatorial electoral districts are always larger, usually twice or thrice as large as the house districts, and the number of senators is, of course, in the same proportion smaller than that of representatives.
• 2. A senator is usually chosen for a longer term than a representative. In twenty-nine states he sits for four years, in one (New Jersey) for three, in thirteen for two, in two (Massachusetts and Rhode Island) for one year only; the usual term of a representative being two years.
• 3. In most cases the Senate, instead of being elected all at once like the House, is only partially renewed, half its members going out when their two or four years have been completed, and a new half coming in. This gives it a sense of continuity which the House wants.
• 4. In some states the age at which a man is eligible for the Senate is fixed higher than that for the House of Representatives.11 Other restrictions on eligibility, such as the exclusion of clergymen (which still exists in a few states, and is of old standing), that of salaried public officials (which exists everywhere), that of United States officials and members of Congress, and that of persons not resident in the electoral district (frequent by law and practically universal by custom), apply to both houses. In some states this last restriction goes so far that a member who ceases to reside in the district for which he was elected loses his seat ipso facto.

I have dwelt in an earlier chapter (Chapter 14) on the strength of this local feeling as regards congressional elections, and on the results, to a European eye mostly unfortunate, which it produces. It is certainly no weaker in state elections. Nobody dreams of offering himself as a candidate for a place in which he does not reside, even in new states, where it might be thought that there had not been time for local feeling to spring up. Hence the educated and leisured residents of the greater cities have no chance of entering the state legislature except for the city district wherein they dwell; and as these city districts are those most likely to be in the hands of some noxious and selfish ring of professional politicians, the prospect for such an aspirant is a dark one. Nothing more contributes to make reform difficult than the inveterate habit of choosing residents only as members. Suppose an able and public-spirited man desiring to enter the Assembly or the Senate of his state and shame the offenders who are degrading or plundering it. He may be wholly unable to find a seat, because in his place of residence the party opposed to his own may hold a permanent majority, and he will not be even considered elsewhere. Suppose a group of earnest men who, knowing how little one man can effect, desire to enter the legislature at the same time and work together. Such a group can hardly arise except in or near a great city. It cannot effect an entrance, because the city has at best very few seats to be seized, and the city men cannot offer themselves in any other part of the state. That the restriction often rests on custom, not on law, makes the case more serious. A law can be repealed, but custom has to be unlearned; the one may be done in a moment of happy impulse, the other needs the teaching of long experience applied to receptive minds.

The fact is, that the Americans have ignored in all their legislative as in many of their administrative arrangements, the differences of capacity between man and man. They underrate the difficulties of government and overrate the capacities of the man of common sense. Great are the blessings of equality; but what follies are committed in its name!

The unfortunate results of this local sentiment have been aggravated by the tendency to narrow the election areas, allotting one senator or representative to each district. Under the older Constitution of Connecticut, for instance, the twelve senators were elected out of the whole state by a popular vote. Now the thirty-five senators are chosen by districts, and the Senate is today an inferior body, because then the best men of the whole state might be chosen, now it is possible only to get the leading men of the districts. In Massachusetts, under the Constitution of 1780, the senators were chosen by districts, but a district might return as many as six senators: the assemblymen were chosen by towns,12 each corporate town having at least one representative, and more in proportion to its population, the proportion being at the rate of one additional member for every 275 ratable polls. In 1836 the scale of population to representatives was raised, and a plan prescribed (too complicated to be here set forth) under which towns below the population entitling them to one representative, should have a representative during a certain number of years out of every ten years, the census being taken decennially. Thus a small town might send a member to the Assembly for five years out of every ten, choosing alternate years, or the first five, or the last five, as it pleased. Now, however (Amendments of 1857), the state has been divided into 40 senatorial districts, each of which returns one senator only, and into 175 assembly districts, returning one, two, or, in a few cases, three representatives each. The composition of the legislature has declined ever since this change was made. The area of choice being smaller, inferior men are chosen; and in the case of the assembly districts which return one member, but are composed of several small towns, the practice has grown up of giving each town its turn, so that not even the leading man of the district, but the leading man of the particular small community whose turn has come round, is chosen to sit in the Assembly.

Universal manhood suffrage, subject to certain disqualifications in respect of crime (including bribery and polygamy) and the receipt of poor-law relief, which prevail in many states—in nine states no pauper can vote—is the rule in nearly all the states. Ten states (Wyoming, Utah, Idaho, Colorado, Washington, Kansas, Arizona, California, Oregon, and Illinois) give the suffrage to women. A property qualification was formerly required in many, and lasted till 1888 in Rhode Island, where the possession of real estate valued at $134, or the payment of a tax of at least $1 was required from all citizens not natives of the United States.13 Ten other states require the voter to have paid some state or county tax (some call it a poll tax); but if he does not pay it, his party usually pay it for him, so the restriction is of little practical importance. Massachusetts also requires that he shall be able to read the state constitution in English, and to write his name (Amendment of 1857); Connecticut, that he shall be able to read any section of the constitution or of the statutes, and shall sustain a good moral character (Amendents of 1855 and 1845). This educational test is of no great consequence, partly, no doubt, because illiteracy is not high in either state; and the ballot laws have reduced the need for it. In Massachusetts it is now enforced, but for a while the party managers on both sides agreed not to trouble voters about it. Mississippi prescribes that the person applying to be registered “shall be able to read any section of the Constitution or be able to understand the same when read to him, or give a reasonable interpretation thereof” (Constitution of 1890).14 Certain terms of residence within the United States, in the particular state, and in the voting districts, are also required. These vary greatly from state to state, but are usually short.

The suffrage is generally the same for other purposes as for that of elections to the legislature, and is in most states confined to male inhabitants. In many states women are permitted to vote at school district elections and on matters affecting libraries; and some confer a direct popular vote or referendum on women taxpayers where a question is submitted to the people. Nowhere is any disability imposed upon married women as such; nor has it been attempted, in the various constitutional amendments framed to give political suffrage to women, accepted in some states, and rejected by the people in others, to draw such a distinction, which would indeed be abhorrent to the genius of American law.

It is important to remember that, by the Constitution of the United States, the right of suffrage in federal or national elections (i.e., for presidential electors and members of Congress) is in each state that which the state confers on those who vote at the election of its more numerous house. That the differences which might exist between one state and another in the width of the federal franchise thus granted, are at present (except in the South) insignificant is due, chiefly to the prevalence of democratic theories of equality over the whole Union, partly perhaps also to the provision of the Fourteenth Amendment to the federal Constitution, which provides that the representation of a state in the federal House of Representatives, and therewith also its weight in a presidential election, may be reduced in proportion to the number of adult male citizens disqualified in that state. As a state desires to have its full weight in national politics, it has a strong motive for the widest possible enlargement of its federal franchise, and this implies a corresponding width in its domestic franchise.

The number of members of the legislature varies greatly from state to state. Delaware, with seventeen senators, has the smallest Senate, Minnesota, with sixty-three, the largest. Delaware has also the smallest House of Representatives, consisting of thirty-five members; while New Hampshire, a very small state, has the largest with 389. The New York houses number 51 and 150 respectively, those of Pennsylvania 50 and 201, those of Massachusetts 40 and 240. In the Western and Southern states the number of representatives rarely exceeds 120.15

As there is a reason for everything in the world, if one could but find it out, so for this difference between the old New England states and those newer states which in many other points have followed their precedents. In the New England states local feeling was and is intensely strong, and every little town wanted to have its member. In the West and South, local divisions have had less natural life; in fact, they are artificial divisions rather than genuine communities that arose spontaneously. Hence the same reason did not exist in the West and South for having a large assembly; while the distrust of representatives, the desire to have as few of them as possible and pay them as little as possible, have been specially strong motives in the West and South, as also in New York and Pennsylvania, and have caused a restriction of numbers.

In all states the members of both houses receive salaries, which in some cases are fixed at an annual sum of from $150 (Maine) to $1,500 (New York), the average being $500. More frequently, however, it is calculated at so much for every day during which the session lasts, varying from $1 (in Rhode Island) to $8 (in California and Nevada) per day ($5 seems to be the average), besides a small allowance, called mileage, for travelling expenses. These sums, although unremunerative to a man who leaves a prosperous profession or business to attend in the state capital, are an object of such desire to many of the representatives of the people, that the latter have thought it prudent to restrict the length of the legislative sessions, which now generally stand limited to a fixed number of days, varying from 40 days in Georgia, Nebraska, and Oregon, to 150 days in Pennsylvania. The states which pay by the day are also those which limit the session. Some states secure themselves against prolonged sessions by providing that the daily pay shall diminish, or shall absolutely cease and determine, at the expiry of a certain number of days, hoping thereby to expedite business and check inordinate zeal for legislation.16

It was formerly usual for the legislature to meet annually, but the experience of bad legislation and over legislation has led to fewer as well as shorter sittings; and sessions are now biennial in all states except two (Alabama and Mississippi)17 where they are quadrennial, and in the six following: Massachusetts, Rhode Island, New York, New Jersey, South Carolina, Georgia, all of them old states. In these the sessions are annual, save in that odd little nook Rhode Island, which still convokes her legislature every May at Newport, and afterwards holds an adjourned session at Providence, the other chief city of the commonwealth. There is, however, in nearly all states a power reserved to the governor to summon the houses in extraordinary session should a pressing occasion arise, but the provisions for daily pay do not usually apply to these extra sessions.18

Bills may originate in either house, save that in most states money bills must originate in the House of Representatives, a rule for which, in the present condition of things, when both houses are equally directly representative of the people and chosen by the same electors, no sufficient ground appears. It is a curious instance of the wish which animated the framers of the first constitutions of the original thirteen states to reproduce the details of the English Constitution that had been deemed bulwarks of liberty. The newer states borrowed it from their elder sisters, and the existence of a similar provision in the federal Constitution has no doubt helped to perpetuate it in all the states. But there is a reason for it in Congress, the federal Senate not being directly representative of equal numbers of citizens, which is not found in the state legislatures; it is in these last a mere survival of no present functional value. Money bills may, however, be amended or rejected by the state Senates like any other bills, just as the federal Senate amends money bills brought up from the House.

In one point a state Senate enjoys a special power, obviously modelled on that of the English House of Lords and the federal Senate. It sits as a court under oath for the trial of state officials impeached by the House.19 Like the federal Senate, it has in many states the power of confirming or rejecting appointments to office made by the governor. When it considers these it is said to “go into executive session.” The power is an important one in those states which allow the governor to nominate the higher judges. In other respects the powers and procedure of the two houses of a state legislature are identical;20 except that, whereas the lieutenant-governor of a state is generally ex officio president of the Senate, with a casting vote therein, the House always chooses its own Speaker. The legal quorum is usually fixed, by the constitution, at a majority of the whole number of members elected,21 though a smaller number may adjourn and compel the attendance of absent members. Both houses do most of their work by committees, much after the fashion of Congress,22 and the committees are in both usually chosen by the Speaker (in the Senate by the president of that body), though it is often provided that the House (or Senate) may on motion vary their composition.23 Both houses sit with open doors, but in most states the constitution empowers them to exclude strangers when the business requires secrecy.

The state governor has of course no right to dissolve the legislature, nor even to adjourn it unless the houses, while agreeing to adjourn, disagree as to the date. Such control as the legislature can exercise over the state officers by way of inquiry into their conduct is generally exercised by committees, and it is in committees that the form of bills is usually settled and their fate decided, just as in the federal Congress. The proceedings are rarely reported. Sometimes when a committee takes evidence on an important question reporters are present, and the proceedings more resemble a public meeting than a legislative session. In some states when a bill is referred to a committee any citizen of the state may appear and give evidence for or against it, so that ample security is taken for the ascertainment of public sentiment and for enabling all private interests affected to state their case. This liberty is largely used in Massachusetts, and with excellent results. It need scarcely be added that neither house separately, nor both houses acting together, can control an executive officer otherwise than either by passing a statute prescribing a certain course of action for him, which if it be in excess of their powers will be held unconstitutional and void, or by withholding the appropriations necessary to enable him to carry out the course of action he proposes to adopt. The latter method, where applicable, is the more effective, because it can be used by a bare majority of either house, whereas a bill passed by both houses may be vetoed by the governor, a point so important as to need a few words.

One state only, North Carolina, still vests legislative authority in the legislature alone. All the rest now require a bill to be submitted to the governor, and permit him to return it to the legislature with his objections. If he so returns it, it can only be again passed “over the veto” by something more than a bare majority. To so pass a bill over the veto there is required:

• In one state (Connecticut) a majority in each house
• In eight states a majority in each house of all the members elected to that house
• In three states a majority of three-fifths in each house of all the members elected
• In eight states a majority of two-thirds in each house of all the members present
• In twenty-seven states a majority of two-thirds of all the members elected
• In one state (Massachusetts) two-thirds of the elected members of the house in which the bill originated, and two-thirds of the members present in the other house
• In one state (Virginia) two-thirds of the members present and a majority of those elected in each house

Here, therefore, as in the federal Constitution, we find a useful safeguard against the unwisdom or misconduct of a legislature, and a method provided for escaping, in extreme cases, from those deadlocks which the system of checks and balances tends to occasion.

I have adverted in a preceding chapter to the restrictions imposed on the legislatures of the states by their respective constitutions. These restrictions, which are numerous, elaborate, and instructive, take two forms.

I. Exclusions of a subject from legislative competence, i.e., prohibitions to the legislature to pass any law on certain enumerated subjects. The most important classes of prohibited statutes are:

• Statutes inconsistent with democratic principles, as, for example, granting titles of nobility, favouring one religious denomination, creating a property qualification for suffrage or office.
• Statutes against public policy, e.g., tolerating lotteries, impairing the obligation of contracts, incorporating or permitting the incorporation of banks, or the holding by a state of bank stock.24
• Statutes special or local in their application, a very large and increasing category, the fulness and minuteness of which in many constitutions show that the mischiefs arising from improvident or corrupt special legislation must have become alarming. The lists of prohibited subjects in the Constitutions of Missouri of 1875, Montana and North Dakota of 1889, Mississippi of 1890, and Oklahoma, 1907, are the most complete I have found.25 Oklahoma enumerates twenty-eight topics, special legislation on which is forbidden.
• Statutes increasing the state debt beyond a certain limited amount, or permitting a local authority to increase its debt beyond a prescribed amount, the amount being usually fixed in proportion to the valuation of taxable property within the area administered by the local authority.26

II. Restrictions on the procedure of the legislature, i.e., directions as to the particular forms to be observed and times to be allowed in passing bills, sometimes all bills, sometimes bills of a certain specified nature. Among these restrictions will be found provisions:

• As to the majorities necessary to pass certain bills, especially appropriation bills. Sometimes a majority of the whole number of members elected to each house is required, or a majority exceeding a bare majority of those present.
• As to the method of taking the votes, e.g., by calling over the roll and recording the vote of each member.
• As to allowing certain intervals to elapse between each reading of a measure, and for preventing the hurried passage of bills, especially appropriation bills, at the end of the session.
• As to reading of bills publicly and at full length.
• As to sending all bills to a committee, and prescribing the mode of its action.
• Against secret sessions (Idaho).
• As to preventing an act from taking effect until a certain time, e.g., ninety days after the adjournment of the session.
• Against changing the purpose of a bill during its passage.
• As to including in a bill only one subject, and expressing that subject in the title of the bill.
• Against reenacting, or amending, or incorporating, any former act by reference to its title merely, without setting out its contents.27

The last two classes of provisions might be found wholesome in England, where much of the difficulty complained of by the judges in construing the law arises from the modern habit of incorporating parts of former statutes, and dealing with them by reference.28

Where statutes have been passed by a legislature upon a prohibited subject, or where the prescribed forms have been transgressed or omitted, the statute will be held void so far as inconsistent with the constitution.

Even these multiform restrictions on the state legislatures have not been found sufficient. Bitted and bridled as they are by the constitutions, they contrive, as will appear in a later chapter, to do plenty of mischief in the direction of private or special legislation.

Although state legislatures have of course no concern whatever with foreign affairs, this is not deemed a reason for abstaining from passing resolutions on that subject. The passion for resolutions is strong everywhere in America, and an expression of sympathy with an oppressed foreign nationality, or of displeasure at any unfriendly behaviour of a foreign power, is not only an obvious way of relieving the feelings of the legislators, but often an electioneering device, which appeals to some section of the state voters. Accordingly such resolutions are common, and, though of course quite irregular, quite innocuous.

Debates in these bodies are seldom well reported, and sometimes not reported at all. One result is that the conduct of members escapes the scrutiny of their constituents; a better one that speeches are generally short and practical, the motive for rhetorical displays being absent. If a man does not make a reputation for oratory, he may for quick good sense and business habits. However, so much of the real work is done in committees that talent for intrigue or “management” usually counts for more than debating power.

chapter 41

The State Executive

The executive department in a state consists of a governor (in all the states), a lieutenant-governor (in thirty-five), and of various minor officials. The governor, who, under the earlier constitutions of most of the original thirteen states, was chosen by the legislature, is now always elected by the people, and by the same suffrage, practically universal, as the legislature. He is elected directly, not, as under the federal Constitution, by a college of electors. His term of office is, in twenty-three states, four years; in one state (New Jersey), three years; in twenty-two states, two years; and in two states (Massachusetts and Rhode Island), one year. His salary varies from $12,000 in New York and Pennsylvania to $2,500 in Vermont and one other state. Some states limit his reeligibility; but in those which do not there seems to exist no tradition forbidding a third term of office similar to that which has prevailed in the federal government.

The earlier constitutions of the original states (except South Carolina) associated with the governor an executive council1 (called in Delaware the Privy Council), but these councils have long since disappeared, except in Massachusetts, Maine, and North Carolina, and the governor remains in solitary glory the official head and representative of the majesty of the state. His powers in the latter decades of the last century had come to be more specious than solid, but in the present century they have begun to revive. One, that of veto, is recognized as of great practical value. He is charged with the duty of seeing that the laws of the state are faithfully administered by all officials and the judgments of the courts carried out. He has, in nearly all states, the power of reprieving the pardoning offenders, but in some this does not extend to treason or to conviction on impeachment (in Vermont he cannot pardon for murder), and in some, other authorities are associated with him in the exercise of this prerogative. Some recent constitutions impose restrictions which witness to a distrust of his action; nor can it be denied that the power has sometimes been used to release offenders (e.g., against the election laws) who deserved no sympathy. The governor is also commander in chief of the armed forces of the state, can embody the militia, repel invasion, suppress insurrection. The militia are now important chiefly as the force which may be used to suppress riots, latterly not unfrequent in connection with labour disputes. Massachusetts has also created a small state police force (called the District Police), placing it at the disposal of the governor for the maintenance of order, wherever disturbed, and for the enforcement of various administrative regulations. Pennsylvania, having frequently suffered from strikes accompanied by violence in the mining regions, has also a state police. Michigan has (and Massachusetts and Rhode Island formerly had) a state police for the enforcement of their anti-liquor legislation, and New York State has one for supervising elections in New York City. Delaware has two state detectives.

He appoints some few officials, but seldom to high posts, and in many states his nominations require the approval of the state Senate. Patronage, in which the president of the United States finds one of his most desired and most disagreeable functions, is in the case of a state governor of slight value, because the state offices are not numerous, and the more important and lucrative ones are filled by the direct election of the people. Nevertheless there has lately appeared a tendency to commit to him, as a person who can be held responsible, the selection of capable men for some of the posts recently created. He has the right of requiring information from the other executive officials, and is usually bound to communicate to the legislature his views regarding the condition of the commonwealth. He may also recommend measures, but is not expected to frame and present bills, though he may practically do this by having a measure introduced which embodies his recommendations. In a few states he is directed to present estimates. He has in all the states but one (North Carolina) a veto upon bills passed by the legislature.2 This veto may be overridden in a manner already indicated (see last preceding chapter), but generally kills the measure, because if the bill is a bad one, it calls the attention of the people to the fact and frightens the legislature, whereas if the bill be an unobjectionable one, the governor’s motive for vetoing it is probably a party motive, and the requisite overriding majority can seldom be secured in favour of a bill which either party dislikes. The use of his veto is, in ordinary times, a governor’s most serious duty, and chiefly by his discharge of it is he judged.

Although much less sought after and prized than in “the days of the Fathers,” when a state governor sometimes refused to yield precedence to the president of the United States, the governorship is still, particularly in New England, and the greater states, a post of some dignity, and affords an opportunity for the display of character and talents. It was in his governorship of New York that Mr. Cleveland, for instance, commended himself to his party, and rose to be president of the United States. Similarly Mr. Hayes was put forward for the presidency in 1876 because he had been a good governor of Ohio. During the Civil War, when each governor was responsible for enrolling, equipping, officering, and sending forward troops from his state,3 and when it rested with him to repress any attempts at disorder, much depended on his energy, popularity, and loyalty. In some states men still talk of the “war governors” of those days as heroes to whom the North owed deep gratitude. And since the Pennsylvanian riots of 1877 and those which have subsequently occurred in Cincinnati and Chicago have shown that tumults may suddenly grow to serious proportions, it has in many states become important to have a man of prompt decision and fearlessness in the office which issues orders to the state militia.4

The decline already noted in the respect and confidence felt for and in the legislatures has latterly, in some states, tended to attach more influence to the office of governor, and has opened to a strong and upright man, the opportunity of making it a post of effective leadership. The people are coming to look upon the head of their commonwealth as the person responsible for giving them a firm and honest administration. When they are convinced of his rectitude, they regard him as the representative of their own best will and purpose, and have in some instances shown that they are prepared to support him against the legislature, and to require the latter to take the path he has pointed out.

The elective lieutenant-governor who, in most states, steps into the governor’s place if it becomes vacant, is usually also ex officio president of the Senate,5 as the vice-president of the United States is of the federal Senate. Otherwise he is an insignificant personage, though sometimes a member of some of the executive boards.6

The names and duties of the other officers vary from state to state. The most frequent are a secretary of state (in all states), a treasurer (in all), an attorney general, a comptroller, an auditor, a superintendent of public instruction. Now and then we find a state engineer, a surveyor, a superintendent of prisons. Some states have also various boards of commissioners, e.g., for railroads, for canals, for prisons, for the land office, for agriculture, for immigration, and (in a few states) for what are called “public utilities.” Many of these officials are (in nearly all states) elected by the people at the general state election. Sometimes, however, they, or some of them, are either chosen by the legislature, or appointed by the governor, whose nomination usually requires the confirmation of the Senate. Their salaries, which of course vary with the importance of the office and the parsimony of the state, seldom exceed $5,000 per annum and are usually smaller. So, too, the length of the term of office varies. It is often the same as that of the governor, and never exceeds four years, except that in New Jersey, a conservative state, the secretary and attorney general hold for five years; and in Tennessee the attorney general, who, oddly enough, is appointed by the supreme court of the state, holds for eight.

It has already been observed that the state officials are in no sense a ministry or cabinet to the governor. Holding independently of him, and responsible neither to him nor to the legislature, but to the people, they do not take generally his orders, and need not regard his advice.7 Each has his own department to administer, and as there is little or nothing political in the work, a general agreement in policy, such as must exist between the federal president and his ministers, is not required. Policy rests with the legislature, whose statutes, prescribing minutely the action to be taken by the officials, leave little room for executive discretion. Europeans may realize the nature of the system by imagining a municipal government in which the mayor, town clerk, health officer, and city architect are all chosen directly by the people, instead of by the common council, and in which every one of these officials is for most purposes, independent not only of the mayor, but also of the common council, except in so far as the latter has the right of granting money, and as it can act by general ordinances—that is to say, act as a legislative and not as an administrative body.8

To give a clearer idea of the staff of a state government I will take the great state of Ohio, and give the functions of the officials by whom it is administered.

The executive officials of Ohio were in 1909:

• A Governor, elected by the people for two years. His chief duties are to execute the laws, convene the legislature on extraordinary occasions, command the state forces, appoint staff officers and aides-de-camp, grant pardons and reprieves, issue commissions to state and county officers, make a variety of appointments, serve on certain boards, and remove, with the assent of the Senate, any official appointed by him and it. He is paid $10,000 a year.
• A Lieutenant-Governor, elected for two years, salary $1,500 a year, with the duty of succeeding to the governor (in case of death or disability), and of presiding in the Senate.
• A Secretary of State, elected for two years (along with the governor), salary $6,500 a year. His duties are to take charge of laws and documents of the state, gather and report statistics, distribute instructions to certain officers, and act as secretary to certain boards, to serve on the state printing and state library boards, to make an abstract of the votes for candidates at presidential and state elections.
• A State Auditor, elected for four years, salary $6,500. Duties—to keep accounts of all moneys in the state treasury, and of all appropriations and warrants, to give warrants for all payments from or into the treasury, to conduct financial communications with county authorities, and direct the attorney general to prosecute revenue claims, to serve on various financial boards, and manage various kinds of financial business.
• A State Treasurer, elected for two years, salary $6,500. Duties—to keep account of all drafts, paying the money into the treasury, and of auditor’s warrants for drafts from it, and generally to assist and check the auditor in the supervision and disbursement of state revenues, publishing monthly statements of balances.
• A State Attorney General, elected for two years, salary $6,500 a year. Duties—to appear for the state in civil and criminal cases, advise legally the governor and other state officers and the Assembly, proceed against offenders, enforce performance of charitable trusts, submit statistics of crime, sit upon various boards.
• A State Commissioner of Common Schools, elected for three years, salary $4,000 a year. Duties—to visit and advise teachers’ institutes, boards of education, and teachers, deliver lectures on educational topics, see that educational funds are legally distributed, prepare and submit annual reports on conditions of schools, appoint state board of examiners of teachers.
• Three Members of Board of Public Works, elected for four years, salary $2,900 a year. Duties—to manage and repair the public works (including canals) of the state, appoint and supervise minor officials, let contracts, present annual detailed report to the governor.
• A State Dairy and Food Commissioner, elected for two years, salary $4,000, and travelling expenses.

Besides these, the people of the state elect the judges and the clerk of the supreme court. Other officials are either elected by the people in districts, counties, or cities, or appointed by the governor or legislature.

Of the subordinate civil service of a state there is little to be said. Though it is not large, for the sphere of administrative action which remains to the state between the federal government on the one side, and the county, city, and township governments on the other, is not wide, it increases daily, owing to the eagerness of the people (especially in the West) to have state aid rendered to farmers, to miners, to stockkeepers, and generally in the material development of the country. Much is now done in the way of collecting statistics and issuing reports. These administrative bureaux are not always well manned, for state legislatures are not duly alive to the necessity of securing high competence, and some of them do little, by salaries or otherwise, to induce able men to enter their service: while the so-called “Spoils System,” which has been hitherto applied to state no less than to federal offices, too often makes places the reward for electioneering and wire-pulling. Efforts are moreover being made, and have in some states already been successful (e.g., New York), to introduce reforms similar to those begun in the federal administration, whereby certain walks of the civil service shall be kept out of politics, at least so far as to secure competent men against dismissal on party grounds. Such reforms would in no case apply to the higher officials chosen by the people, for they are always elected for short terms and on party lines. In New York, however, recent legislation has created efficient administrative boards with suitable authority, such as the Public Service Commission, which has jurisdiction over railroads and over corporations providing gas, electric light and power, telegraph and telephone service.

Every state provides for the impeachment of executive officers for grave offences.9 The state House of Representatives is the impeaching body, except in Nebraska, where the impeachment is made by joint resolution of both houses; and in all but Nebraska the state Senate sits as the tribunal, a two-thirds majority being generally required for a conviction. Impeachments are rare in practice.

There has also been in many states a power of removing officials, sometimes by the vote of the legislature, sometimes by the governor on the address of both houses, or by the governor either alone, or with the concurrence of the Senate. Such removals must of course be made in respect of some offence, or for some other sufficient cause, not from caprice or party motives; and when the case does not seem to justify immediate removal, the governor is frequently empowered to suspend the officer, pending an investigation of his conduct.

A more promptly effective method of dealing with officials to whom objection is taken has been recently introduced in some states. This is the recall. A prescribed number of voting citizens may demand that a vote shall be taken on the question whether a certain official shall or shall not continue in office for the rest of his term. If such a popular vote when taken shows a majority against the official, he is thereby dismissed.

Up to the end of 1913 seven states had adopted this plan. They were Oregon, California, Arizona, Colorado, Nevada, Idaho, Washington.

chapter 42

The State Judiciary

The judiciary in every state includes three sets of courts: A supreme court or court of appeal; superior courts of record; local courts; but the particular names and relations of these several tribunals and the arrangements for criminal business vary greatly from state to state. We hear of courts of common pleas, probate courts,1 surrogate courts, prerogative courts, courts of oyer and terminer, orphans’ courts, court of general sessions of the peace and gaol delivery, quarter sessions, hustings’ courts, county courts, etc., etc. All sorts of old English institutions have been transferred bodily, and sometimes look as odd in the midst of their new surroundings as the quaint gables of a seventeenth-century house among the terraces of a growing London suburb. As respects the distinction which Englishmen used to deem fundamental, that of courts of common law and courts of equity, there has been great diversity of practice. Most of the original thirteen colonies once possessed separate courts of chancery, and these were maintained for many years after the separation from England, and were imitated in a few of the earlier among the new states, such as Michigan, Arkansas, Missouri. In some of the old states, however, the hostility to equity jurisdiction, which marked the popular party in England in the seventeenth century, had transmitted itself to America. Chancery courts were regarded with suspicion, because thought to be less bound by fixed rules, and therefore more liable to be abused by an ambitious or capricious judiciary.2 Massachusetts, for instance, would permit no such court, though she was eventually obliged to invest her ordinary judges with equitable powers, and to engraft a system of equity on her common law, while still keeping the two systems distinct. Pennsylvania held out still longer, but she also now administers equity, as indeed every civilized state must do in substance, dispensing it, however, through the same judges as those who apply the common law, and having more or less worked it into the texture of the older system. Special chancery courts were abolished in New York, where they had flourished and enriched American jurisprudence by many admirable judgments, by the democratizing Constitution of 1846; and they now exist only in a few of the states, chiefly older Eastern or Southern states,3 which, in judicial matters, have shown themselves more conservative than their sisters in the West. In seven states (Connecticut, New York, North Carolina, Georgia, Ohio, California, Idaho) there has been a complete fusion of law and equity, although there are several others which have provided that the legislature shall abolish the distinction between the two kinds of procedure. Many, especially of the newer states, provide for the establishment of tribunals of arbitration and conciliation.

The jurisdiction of the state courts, both civil and criminal, is absolutely unlimited, i.e., there is no appeal from them to the federal courts, except in certain cases specified by the federal Constitution, being cases in which some point of federal law arises. Certain classes of cases are, of course, reserved for the federal courts and in some the state courts enjoy a concurrent jurisdiction.4 All crimes, except such as are punishable under some federal statute, are justiciable by a state court; and it is worth remembering that in all, or nearly all, states there exist much wider facilities for setting aside the verdict of a jury finding a prisoner guilty, by raising all sorts of points of law, than are permitted by the law and practice of any European country. Such facilities have been and are abused, to the great detriment of the community.

One or two other points relating to law and justice in the states require notice. Each state recognizes the judgments of the courts of a sister state, gives credit to its public acts and records, and delivers up to its justice any fugitive from its jurisdiction, permitting him, moreover, to be (if necessary) tried for some other offence than that in respect of which his extradition was obtained. Of course the courts of one state are not bound either by law or usage to follow the reported decisions of those of another state. They use such decisions merely for their own enlightenment, and as some evidence of the common law, just as they use the English law reports. Most of the states have within the last half century made sweeping changes, not only in their judicial system, but in the form of their law. They have revised and codified their statutes, a carefully corrected edition whereof is issued every few years. They have in many instances adopted codes of procedure, and in some cases have even enacted codes embodying the substance of the common law, and fusing it with the statutes. Such codes, however, have been condemned by the judgment of the abler and more learned part of the profession, as rendering the law more uncertain and less scientific.5 But with the masses of the people the proposal is popular, for it holds out a prospect, unfortunately belied by the result in states which, like California, have tried the experiment, of a system whose simplicity will enable the layman to understand the law, and render justice cheaper and more speedy. A really good code might have these happy effects. But it may be doubted whether the codifying states have taken the steps requisite to secure the goodness of the codes they enact. And there is a grave objection to the codification of state law which does not exist in a country like England or France. So long as the law of a state remains common law, i.e., rests upon custom and decisions given by the judges, the law of each state tends to keep in tolerable harmony with that of other states, because each set of judges is enlightened by and disposed to be influenced by the decisions of the federal courts and of judges in other states. But when the whole law of a state has been enacted in the form of a code all existing divergences between one state and another are sharpened and perpetuated, while new divergences may probably be created. Hence codification increases the variations of the law between different states, and these variations tend to impede business and disturb the ordinary relations of life.

Important as are the functions of the American judiciary, the powers of a judge are limited by the state constitutions in a manner surprising to Europeans. He is not generally allowed to charge the jury on questions of fact,6 but only to state the law. He is sometimes required to put his charge in writing. His power of committing for contempt of court is often restricted. Express rules forbid him to sit in causes wherein he can have any family or pecuniary interest. In one constitution his punctual attendance is enforced by the provision that if he does not arrive in court within half an hour of the time fixed for the sitting, the attorneys of the parties may agree on some person to act as judge, and proceed forthwith to the trial of the cause. And in California he is not allowed to draw his salary till he has made an affidavit that no cause that has been submitted for decision for ninety days remains undecided in his court.7

I come now to three points, which are not only important in themselves, but instructive as illustrating the currents of opinion which have influenced the peoples of the states. These are:

• The method of appointing the judges
• Their tenure of office
• Their salaries

The remarkable changes that have been made in the two former matters, and the strange practice which now prevails in the latter, are full of significance for the student of modern democracy, full of warning for Europe and the British colonies.

In colonial days the superior judges were appointed by the governors, except in Rhode Island and Connecticut, where the legislature elected them. When, in and after 1776, the states formed their first constitutions, four states,8 besides the two just named, vested the appointment in the legislature, five9 gave it to the governor with the consent of the council; Delaware gave it to the legislature and president (= governor) in joint ballot, while Georgia alone entrusted the election to the people.

In the period between 1812 and 1860, when the tide of democracy was running strong, the function of appointing was in several of the older states taken from the governor or the legislature to be given to the people voting at the polls; and this became the practice among the new states as they were successively admitted to the Union. Mississippi, in 1832, made all her judges elected by the people. The decisive nature of the change was marked by the great state of New York, which, in her highly democratic constitution of 1846, transferred all judicial appointments to the citizens at the polls.

At present we find that:

• In four states10 the judges are elected by the legislature;
• In seven states11 they are appointed by the governor, subject however to confirmation either by the council, or by the legislature, or by one house thereof;
• In all the other states, the judges are elected by the people. These include nearly all the Western and Southwestern states, besides New York, Pennsylvania, and Ohio.

It will be observed that of the eleven states which do not appoint the judge by popular election all (except Maine and Mississippi) belong to the original thirteen colonies. It is these older commonwealths that have clung to the less democratic methods of choosing judicial officers; while the new democracies of the West, together with the most populous states of the East, New York and Pennsylvania, states thoroughly democratized by their great cities, have thrown this grave and delicate function into the rude hands of the masses, that is to say, of the wire-pullers.

Originally, the superior judges were, in most states, like those of England since the Revolution of 1688, appointed for life, and held office during good behaviour, i.e., were removable only when condemned on an impeachment, or when an address requesting their removal had been presented by both houses of the legislature.12 A judge may now be removed upon such an address in nearly all states, a majority of two-thirds in each house being usually required. This salutary provision of the British Constitution against capricious removals has been faithfully adhered to. But the wave of democracy has in nearly all states swept away the old system of life tenure. Only three now retain it.13 In the rest a judge is elected or appointed for a term, varying from two years in Vermont to twenty-one years in Pennsylvania. Eight to ten years is the average term prescribed; but a judge is always reeligible, and likely to be reelected if he be not too old, if he has given satisfaction to the bar, and if he has not offended the party which placed him on the bench.

The salaries paid to state judges of the higher courts range from $10,500 (chief justice) in Pennsylvania, and $14,200 (chief justice) in New York (in one district $17,500), to $2,500 in Vermont. $5,000 to $6,000 (+ $500 to the chief judge) is the average, a sum which, especially in the greater states, fails to attract the best legal talent. To the rule that justices of the inferior courts receive salaries proportionately lower, there are exceptions in large cities, where judges of lower tribunals, being more “in politics” can sometimes secure salaries quite out of proportion to their status.14 In general the new Western states are the worst paymasters, their population of farmers not perceiving the importance of securing high ability on the bench, and deeming $4,000 a larger sum than a quiet-living man can need. The lowness of the scale on which the salaries of federal judges are fixed confirms this tendency.

Any one of the three phenomena I have described—popular elections, short terms, and small salaries—would be sufficient to lower the character of the judiciary. Popular elections throw the choice into the hands of political parties, that is to say, of knots of wire-pullers inclined to use every office as a means of rewarding political services, and garrisoning with grateful partisans posts which may conceivably become of political importance. In some few states, judges have from time to time become accomplices in election frauds, tools in the hands of unscrupulous bosses. Injunctions granted by them were moves in the party game. Now, short terms, though they afford useful opportunities of getting rid of a man who has proved a failure, yet has done no act justifying an address for his removal, sap the conscience of the judge, for they oblige him to remember and keep on good terms with those who have made him what he is, and in whose hands his fortunes lie. They induce timidity, they discourage independence. And small salaries prevent able men from offering themselves for places whose income is perhaps only one-tenth of what a leading barrister can make by private practice. Putting the three sources of mischief together, no one will be surprised to hear that in many of the American states the state judges are men of moderate abilities and scanty learning, inferior, and sometimes vastly inferior, to the best of the advocates who practise before them. It is less easy to express a general opinion as to their character, and particularly as to what is called, even in America where fur capes are not worn, the “purity of the judicial ermine.” Pecuniary corruption seems, so far as a stranger can ascertain, to be rare, in most states very rare, but there are other ways in which sinister influences can play on a judge’s mind, and impair that confidence in his impartiality which is almost as necessary as impartiality itself. And apart from all questions of dishonesty or unfairness, it is an evil that the bench should not be intellectually and socially at least on a level with the bar.

The mischief is serious. But it is in most states smaller than a European observer is prepared to expect. In most of the states where the elective system prevails the bench is respectable; and in some it is occasionally adorned by men of the highest eminence. Michigan, for instance, has during many years had a strong and respected judiciary. One of its more recent judges sat for thirty-two years, having been reelected six times in succession. Seldom are the results so lamentable as might have been predicted. New York City, under the dominion of the Tweed Ring, has afforded the only instance of flagrant judicial scandals; and even in those loathsome days, the Court of Appeals at Albany, the highest tribunal of the state, retained the respect of good citizens. Although judges are sometimes weak and sometimes subject to political influence, although juries are not always above suspicion, still justice in ordinary civil causes between man and man is fairly administered over the whole Union, and the frequent failures to convict criminals, or punish them when convicted, evils on which some eminent statesmen and lawyers have recently dwelt, are attributable not so much either to weakness or to partiality on a judge’s part as to the tenderness of juries and the inordinate delays and complexity of criminal procedure.

Why then have sources of evil so grave failed to produce correspondingly grave results? Three reasons may be suggested.

One is the coexistence in every state of the federal tribunals, presided over by judges who are usually capable and always upright. Their presence helps to keep the state judges, however personally inferior, from losing the sense of responsibility and dignity which befits the judicial office, and makes even party wire-pullers ashamed of nominating as candidates men either tainted or notoriously incapable.

Another is the influence of a public opinion which not only recognizes the interest the community has in an honest administration of the law, but recoils from turpitude in a highly placed official. The people act as a check upon the party conventions that choose candidates, by making them feel that they damage themselves and their cause if they run a man of doubtful character, and the judge himself is made to dread public opinion in the criticisms of a very unreticent press. Democratic theory, which has done a mischief in introducing the elective system, partly cures it by subjecting the bench to a light of publicity which makes honesty the safest policy. Whatever passes in court is, or may be, reported. The judge must give his reasons for every judgment he delivers.

Lastly, there is the influence of the bar, a potent influence even in the present day, when its role is less brilliant than in former generations. The local party leaders who select the candidates and “run” the conventions are in some states mostly lawyers themselves, or at least in close relations with some leading lawyers of the state or district. Now lawyers have not only a professional dislike to the entrusting of law to incapable hands, the kind of dislike which a skilled bricklayer has to seeing walls badly laid, but they have a personal interest in getting fairly competent men before whom to plead. It is no pleasure to them to have a judge so ignorant or so weak that a good argument is thrown away upon him, or that you can feel no confidence that the opinion given to a client, or a point of law which you think clear, will be verified by the decision of the court. Hence the bar often contrives to make a party nomination for judicial office fall, not indeed on a leading counsel, because a leading counsel will not accept a place with $4,000 a year, when he can make $20,000 to $30,000 by private practice, but on as competent a member of the party as can be got to take the post. Having constantly inquired, in every state I visited wherein the system of popular elections to judgeships prevails, how it happened that the judges were not worse, I was usually told that the bar had interposed to prevent such and such a bad nomination, or had agreed to recommend such and such a person as a candidate, and that the party had yielded to the wishes of the bar. Occasionally, when the wire-pullers are on their good behaviour, or the bar is exceptionally public-spirited, a person will be brought forward who has no claims except those of character and learning. But it is perhaps more common for the lawyers to put pressure on one or other party in nominating its party candidates to select capable ones. Thus when a few years ago the Republicans of New York State were running bad candidates, some leading Republican lawyers peruaded the Democrats to nominate better men, and thereupon issued an appeal in favour of these latter, who were accordingly carried at the ensuing election.

These causes, and especially the last, go far to nullify the malign effects of popular election and short terms. But they cannot equally nullify the effect of small salaries. Accordingly, while corruption and partiality are uncommon, inferiority to the practising counsel is a conspicuous and frequent fault.

One is obliged to speak generally, because there are differences between the various states too numerous to be particularized. In some, especially in the Northwest, the tone of the party managers and of the bar is respectable, and the sense of common interest makes everybody wish to have as good men as the salaries will secure. In others there are traditions which even unscrupulous wire-pullers fear to violate. Pennsylvania, for instance, though her legislature and her city governments have been impure, still generally elects judges of sufficient learning. The scandals of Barnard and Cardozo15 were due to the fact that the vast and ignorant population of New York was dominated by a gang of professional politicians who neither feared the good citizens nor regarded the bar.

As there are institutions which do not work as well as they theoretically ought, so there are happily others which work better. The sale of offices under the old monarchy of France, the sale of commissions in the English army till 1871, the bribery of electors which in England was once so rife, the sale of advowsons and next presentations to livings which still exists in the Anglican church establishment, were or are all of them indefensible in theory, all mischievous in practice. But none of them did so much harm as a philosophical observer would have predicted, because other causes were mitigating their evils.

As respects recent years, some changes have been for the better, some for the worse. Two states which had vested the appointment of judges in the legislature, like Connecticut, or in the people, like Mississippi, have by constitutional amendments or new constitutions, given it to the governor with the consent of the legislature or of one house thereof.16 Others have raised the salaries, or lengthened the terms of the judges, or, like New York, have introduced both these reforms. But all the states admitted within that period have vested the choice of judges in the people. Even Kentucky in 1891 could not be induced, in spite of the decline of her bench from its ancient fame, to restore the system of appointment by the executive which had prevailed till 1850, while Georgia and Florida took appointments from legislature or governor to entrust them to popular vote. And Oklahoma, the state whose Constitution of 1907 is a fair indication of Western tendencies, made the judicial term of her highest court only six years. In this point, at least, the tide of democracy which went on rising for so many years, seems, if it has not risen further, yet not to have receded.

A significant evidence of the want of confidence in the state judiciary is afforded by the recent introduction into the Constitutions of Oregon, California, Arizona, Colorado, and Nevada of a provision for applying to the bench the system of recall mentioned in the last preceding chapter. The tendency of such a plan to reduce such independence as judges still retain is evident; and the only serious argument for it is to be found in the fact that in some states there are some few judges fit for nothing but to be recalled. One state, Colorado, also permits the people by a vote to reverse a particular decision, given by a state court, of which they disapprove.

When in a Western state where he finds that some of the judges command little respect, because known to be amenable to influences from powerful politicians, the traveller enquires why the people do not try to secure the independence of the bench by vesting appointments in the governor, or at least by choosing the judges for longer terms and paying them larger salaries, he is told that the masses consider the judges already too likely to be influenced by the corporations, already too liable to show insufficient sympathy for the people. That is no hopeful outlook, for it shows how deep the causes lie which have reduced the efficiency and the dignity of the judiciary. Nevertheless, even in such a state it may be hoped that the conditions which have worked so much evil will ultimately pass away. The American people, though sometimes overbold in their experiments, have a fund of good sense which makes them watchful of results, and will in time lead them to find the remedies which the case requires. It is to be regretted that the particualr remedy which some Western states are now applying does not seem to strike at the root of the disease.

chapter 43

State Finance

The financial systems in force in the several states furnish one of the widest and most instructive fields of study that the whole range of American institutions presents to a practical statesman, as well as to a student of comparative politics. It is much to be wished that some person equipped with the necessary special knowledge could survey them with a philosophic eye, and present the results of his survey in a concise form. From such an attempt I am interdicted not only by the want of that special knowledge, but by the compass of the subject, and the difficulty of obtaining in Europe adequate materials. These materials must be sought not so much in the constitutions of the states as in their statutes, and in the reports presented by the various financial officials, and by the special commissions occasionally appointed to investigate the subject or some branch of it. All I can here attempt is to touch on a few of the more salient features of the topic, and to cull from the constitutions some illustrations of the dangers feared and the remedies desired by the people of the states. What I have to say falls under the heads following:

• Purposes for which state revenue is required
• Forms of taxation
• Exemptions from taxation
• Methods of collecting taxes
• Limitations imposed on the power of taxing
• State indebtedness
• Restrictions imposed on the borrowing power

I. The budget of a state is seldom large, in proportion to the wealth of its inhabitants, because the chief burden of administration is borne not by the state, but by its subdivisions, the counties, and still more the cities and townships. The chief expenses which a state undertakes in its corporate capacity are (1) the salaries of its officials, executive and judicial, and the incidental expenses of judicial proceedings, such as payments to jurors and witnesses; (2) the state volunteer militia; (3) charitable and other public institutions, such as state lunatic asylums, state universities, agricultural colleges, etc.;1 (4) grants to schools;2 (5) state prisons, comparatively few, since the prison is usually supported by the county; (6) state buildings and public works, including, in a few cases, canals; (7) payment of interest on state debts. Of the whole revenue collected in each state under state taxing laws, a comparatively small part is taken by the state itself and applied to state purposes.3 In 1882 only seven states raised for state purposes a revenue exceeding $2,000,000. In 1905–06 the gross revenue of New York State was $39,000,000 (pop. in 1905, 8,000,000); that of Massachusetts, $10,700,000. These are small sums when compared either with the population and wealth of these states, or with the revenue raised in them by local authorities for local purposes. They are also small in comparison with what is raised by indirect taxation for national purposes.

II. The national government raises its revenue by indirect taxation, and by duties of customs and excise,4 though it has the power of imposing direct taxes, and used that power freely during the Civil War. In 1894 it imposed an income tax, exempting, however, smaller incomes, but the Supreme Court, by a majority, held this to be unconstitutional.5 State revenue, on the other hand, arises almost wholly from direct taxation, since the federal Constitution forbids the levying of import or export duties by a state, except with the consent of Congress, and directs the produce of any such duties as Congress may permit to be paid into the federal treasury. The chief tax is in every state a property tax, based on a valuation of property, and generally of all property, real and personal, within the taxing jurisdiction.

The valuation is made by officials called appraisers or assessors, appointed by the local communities, though under general state laws.6 It is their duty to put a value on all taxable property; that is, speaking generally, on all property of whatever nature which they can discover or trace within the area of their authority. As the contribution, to the revenues of the state or county, leviable within that area, is proportioned to the amount and value of taxable property situate within it, the local assessors have, equally with the property owners, an obvious motive for valuing on a low scale, for by doing so they relieve their community of part of its burden. The state accordingly strives in diverse ways to check and correct them, sometimes by creating what is called a board of equalization, which compares and revises the valuations made by the various local officers, with the aim of having taxable property in each locality equally and fairly valued, and made thereby to bear its due share of public burdens. Similarly a county has often an equalization board to supervise and adjust the valuations of the towns and cities within its limits. However, the existence of such boards does not overcome the difficulty of securing a really equal valuation, and the honest county or town which puts its property at a fair value suffers by paying more than its share. Valuations are generally made at a figure much below the true worth of property. In Connecticut, for instance, the law directs the market price to be the basis, but real estate is valued only at from one-third to two-thirds thereof.7 Indeed one hears everywhere in America complaints of inequalities arising from the varying scales on which valuers proceed.8

A comparison of the tax lists with the probate records convinced the commissioners that, whereas in 1884 more than a third of the whole personal property assessed in the state of Connecticut escaped taxes, the proportion not reached by taxation was in 1886 much greater; and induced them to recommend that “all the items of intangible property ought to be struck out of the tax list.” The probate inventories of the estates of deceased persons, and the last returns made to the tax assessors by those persons, “show, to speak of it mildly, few points of contact.” Connecticut is a commonwealth in most respects above the average. In every part of the country one hears exactly the same.11 The tax returns sent in are rarely truthful; and not only does a very large percentage of property escape its lawful burdens, but “the demoralization of the public conscience by the frequent administration of oaths, so often taken only to be disregarded, is an evil of the greatest magnitude. Almost any change would seem to be an improvement.” 12

There is probably not a state in the Union of which the same thing might not be said. In Ohio, for instance, the governor remarks in a special message of April 1887:

In New York there was a shrinkage in the valuation of personalty from 1871 to 1884 of $107,184,371, and in 1888 personalty paid only 10 per cent, realty 90 per cent, of the state taxation. In 1908 realty was valued at $8,553,298,187 and personalty at $620,268,058. Personalty paid only 6 3/4 per cent of the state taxation, realty 93 1/2 per cent. In California personal property was assessed at $220,000,000 in 1872, and at $251,000,000 in 1902, while in the same thirty years real estate rose from $417,000,000 to $974,000,000.

I have dwelt upon these facts, not only because they illustrate the difficulties inherent in a property tax, difficulties of course greater where such independent taxing authorities as the several states are close together, but also because they help to explain the occasional bitterness of feeling among the American farmers as well as the masses against capitalists, much of whose accumulated wealth escapes taxation, while the farmer who owns his land, as well as the working man who puts his savings into the house he lives in, is assessed and taxed upon this visible property. We may, in fact, say of most states, that under the present system of taxation the larger is the city the smaller is the proportion of personalty reached by taxation (since concealment is easier in large communities), and the richer a man is the smaller in proportion to his property is the contribution he pays to the state.13 Add to this that the rich man bears less, in proportion to his income, of the burden of indirect taxation, since the protective tariff raises the price not merely of luxuries but of all commodities, except some kinds of food.14

Besides the property tax, which is the main source of revenue, the states often levy taxes on particular trades or occupations,15 sometimes in the form of a licence tax, taxes on franchises enjoyed by a corporation, taxes on railroad stock, or (in a few states) taxes on collateral inheritances. Comparatively little resort has hitherto been had to the so-called “death-duties,” i.e., probate, legacy, and succession duties, nor is much use made of an income tax. Nine states, however, authorize it, and two (South Carolina and Oklahoma) allow it to be graduated. New York taxes stock exchange transactions. As regards poll taxes there is much variety of practice. A few state constitutions (e.g., Ohio) forbid such an impost, as “grievous and oppressive”; others direct it to be imposed, or allow the legislature to impose it, while about one-half do not mention it. Where it exists, there is sometimes a direction that it shall be applied to schools or some other specified useful purpose, such as poor relief, so as to give the poor, who perhaps pay no other direct tax, a sense of their duty to contribute to public objects, and especially to those in whose benefits they directly share. The amount of a poll tax is always small, $1 to $3—North Dakota allows $4. Sometimes (as in Tennessee) the payment of it is made a prerequisite to the exercise of the electoral franchise. It is scarcely ever imposed on women or minors.

In some states “foreign” corporations, i.e., those chartered by or domiciled in another state, are taxed more heavily than domestic corporations. The laws of the states differ widely in their provisions regarding the incorporation of companies.

Instances are beginning to appear of a progressive inheritance duty. Two states, Minnesota and Oklahoma, authorize it; and Oregon enacted (in 1909) such an impost which reaches 6 per cent for estates exceeding $50,000. California in her famous Constitution of 1879 attempted to tax the same property twice over.

There is always a desire to hit incorporated companies, especially banks and railroads.16 The newer constitutions often direct the legislature to see that such undertakings are duly taxed, sometimes forbidding it ever to deprive itself of the power of taxing any corporation, doubtless from the fear that these powerful bodies may purchase from a pliant legislature exemption from civic burdens. The methods, however, of taxing corporations vary greatly from state to state, and are at present in a chaotic condition.

III. In most states, certain descriptions of property are exempted from taxation, as for instance, the buildings or other property of the state, or of any local community, burying grounds, schools and universities, educational, charitable, scientific, literary, or agricultural institutions or societies, public libraries, churches and other buildings or property used for religious purposes, cemeteries, household furniture, farming implements, deposits in savings banks. Often too it is provided that the owner of personal property below a certain figure shall not pay taxes on it, and occasionally ministers of religion are allowed a certain sum (as for instance in New York, $1,500) free from taxation.

No state can tax any bonds, debt certificates, or other securities issued by, or under the authority of, the federal government, including the circulating notes commonly called “greenbacks.” This has been held to be the law on the construction of the federal Constitution, and has been so declared in a statute of Congress. Many intricate questions have arisen on this doctrine; which, moreover, introduces an element of difficulty into state taxation, because persons desiring to escape taxation are apt to turn their property into these exempted forms just before they make their tax returns.

IV. Some of the state taxes, such, for instance, as licence taxes, or a tax on corporations, are directly levied by and paid to the state officials. But others, and particularly the property tax, which forms so large a source of revenue, are collected by the local authorities. The state having determined what income it needs, apportions this sum among the counties, or in New England, sometimes directly among the towns, in proportion to their paying capacity, that is, to the value of the property situate within them.17 So similarly the counties apportion not only what they have to pay to the state, but also the sum they have to raise for county purposes, among the cities and townships within their area, in proportion to the value of their taxable property. Thus, when the township or city authorities assess and collect taxes from the individual citizen, they collect at one and the same time three distinct sets of taxes, the state tax, the county tax, and the city or township tax. Retaining the latter for local purposes,18 they hand on the two former to the county authorities, who in turn retain the county tax, handing on to the state what it requires. Thus trouble and expense are saved in the process of collecting, and the citizen sees in one tax paper all he has to pay.

V. Some states, taught by their sad experience of reckless legislatures, limit by their constitutions the amount of taxation which may be raised for state purposes in any one year. Thus Texas in 1876 forbade the state property tax to exceed one-half per cent on the valuation (exclusive of the sum needed to pay interest on the state debt), and has since reduced the percentage to .35. North Dakota (1889) fixed .4, Montana .3, as the percentage. A similar provision exists in Missouri, and in some other Southern or Western states. We shall see presently that this method of restriction has been more extensively applied to cities and other subordinate communities. Sometimes we find directions that no greater revenue shall be raised than the current needs of the state require, a rule which Congress would have done well to observe, seeing that a surplus revenue invites reckless expenditure and gives opportunity for legislative jobbery.19

It may be thought that the self-interest of the people is sufficient to secure economy and limit taxation. But, apart from the danger of a corrupt legislature, if is often remarked that as in many states a large proportion of the voters do not pay state taxes, the power of imposing burdens lies largely in the hands of persons who have no direct interest, and suppose themselves to have no interest at all, in keeping down taxes which they do not pay. So far, however, as state finance is concerned, this has been no serious source of mischief, and more must be attributed to the absence of efficient control over expenditure,20 and to the fact that (as in Congress) the committee which reports on appropriations of the revenue is distinct from that which deals with the raising of revenue by taxation.

Another illustration of the tendency to restrict the improvidence of representatives is furnished by the prohibitions in many constitutions to pass bills appropriating moneys to any private individual or corporation, or to authorize the payment of claims against the state arising under any contract not strictly and legally binding, or to release the claims which the state may have against railroads or other corporations. One feels, in reading these multiform provisions, as if the legislature was a rabbit seeking to issue from its burrow to ravage the crops wherever it could, and the people of the state were obliged to close every exit, because they could not otherwise restrain its inveterate propensity to mischief.

VI. Nothing in the financial system of the states better deserves attention than the history of the state debts, their portentous growth, and the efforts made, when the people had taken fright, to reduce their amount, and to set limits to them in the future.

In the first decades of the nineteenth century when those rich and ample Western lands which now form the states of Ohio, Indiana, Illinois, Michigan, and Missouri were being opened up and settled, and again, some time later, when the railway system was in the first freshness of its marvellous extension, and was filling up the lands along the Mississippi at an increasingly rapid rate, everyone was full of hope; and states, counties, and cities, not less than individual men, threw themselves eagerly into the work of developing the resources which lay around them. The states, as well as these minor communities, set to work to make roads and canals and railways; they promoted or took stock in trading companies, they started or subsidized banks, they embarked in, or pledged their credit for, a hundred enterprises which they were ill-fitted to conduct or supervise. Some undertakings failed lamentably, while in others the profits were grasped by private speculators, and the burden left with the public body. State indebtedness, which in 1825 (when there were twenty-four states) stood at an aggregate over the whole Union of $12,790,728 (£2,500,000), had in 1842 reached $203,777,916,21 in 1870 $352,866,898.

A part of the increase in the years between 1842 and 1870 was due to loans contracted for the raising and equipping of troops by many Northern states to serve in the Civil War, the intention being to obtain ultimate reimbursement from the national treasury. There was also a good deal, in the way of executed works, to show for the money borrowed and expended, and the states (in 1870 thirty-seven in number) had grown vastly in taxable property. Nevertheless the huge and increasing total startled the people, and, as everybody knows, some states repudiated their debts. The diminution in the total indebtedness of 1880, which stood at $290,326,643, and was the indebtedness of thirty-eight states and three Territories, is partly due to this repudiation. In 1890 the total (then of forty-four states and two Territories) stood at $223,107,883, and in 1902 it was (for the then forty-five states, omitting minor civil divisions) $235,000,000. Even after the growth of state debts had been checked (in the way to be presently mentioned), minor communities, towns, counties, but above all, cities trod in the same path, the old temptations recurring, and the risks seeming smaller because a municipality had a more direct and close interest than a state in seeing that its money or credit was well applied. Municipal indebtedness has advanced, especially in the larger cities, at a dangerously swift rate. Of the state and county debt much the largest part had been incurred for, or in connection with, so-called “internal improvements”; but of the city debt, though a part was due to the bounties given to volunteers in the Civil War, much must be set down to extremely lax and wasteful administration, and much more to mere stealing, practised by methods to be hereafter explained, but facilitated by the habit of subsidizing, or taking shares in, corporate enterprises which had excited the hopes of the citizens.

VII. The disease spread till it terrified the patient, and a remedy was found in the insertion in the constitutions of provisions limiting the borrowing powers of state legislatures. Fortunately the evil had been perceived in time to enable the newest states to profit by the experience of their predecessors. For the last half century, whenever a state has enacted a constitution, it has inserted sections restricting the borrowing powers of states and local bodies, and often also providing for the discharge of existing liabilities. Not only the passing of bills for raising a state loan has been surrounded with special safeguards, such as the requirement of a two-thirds majority in each house of the legislature; not only have there been prohibitions ever to borrow money for, or even to undertake, internal improvements (a fertile source of jobbery and waste, as the experience of Congress shows); and not only also almost invariably a provision that whenever a debt is contracted the same act shall create a sinking fund for paying it off within a few years, but in most constitutions the total amount of the debt was limited, and limited to a sum beautifully small in proportion to the population and resources of the state.22 Thus Wisconsin fixes its maximum at $200,000 (£40,000); Minnesota and Iowa at $250,000, Ohio at $750,000; Wyoming at one and Idaho at one and one-half per cent of the assessed value of taxable property; Nebraska and Montana at $10,000; prudent Oregon at $50,000; and the great and wealthy state of Pennsylvania, with a population now exceeding 5,300,000 (Constitution of 1873, art. IX, § 4), at $1,000,000.23

In four-fifths of the states, including all those with recent constitutions, the legislature is forbidden to “give or lend the credit of the State in aid of any person, association, or corporation, whether municipal or other, or to pledge the credit of the State in any manner whatsoever for the payment of the liabilities present or prospective of any individual association, municipal, or other corporation,” 24 as also to take stock in a corporation, or otherwise embark in any gainful enterprise. Many constitutions also forbid the assumption by the state of the debts of any individual or municipal corporation.

The care of the people for their financial freedom and safety extends even to local bodies. Many of the recent constitutions limit, or direct the legislature to limit, the borrowing powers of counties, cities, or towns, sometimes even of incorporated school districts, to a sum not exceeding a certain percentage on the assessed value of the taxable property within the area in question. This percentage is usually 5 per cent; sometimes, however, 7 per cent; or even (New York, Amendment of 1884) 10 per cent. Sometimes also the amount of the tax leviable by a local authority in any year is restricted to a definite sum—for instance, to one-half per cent on the valuation.25 And in nearly all the states, cities, counties, or other local incorporated authorities are forbidden to pledge their credit for, or undertake the liabilities of, or take stock in, or otherwise give aid to, any undertaking or company. Sometimes this prohibition is absolute; sometimes it is made subject to certain conditions, and may be avoided by their observance. For instance, there are states in which the people of a city can, by special vote, carried by a two-thirds majority, or a three-fifths majority, or (in Colorado) by a bare majority of the taxpayers, authorize the contracting of a debt which the municipality could not incur by its ordinary organs of government. Sometimes there is a direction that any municipality creating a debt must at the same time provide for its extinction by a sinking fund. Sometimes the restrictions imposed apply only to a particular class of undertakings—e.g., banks or railroads. The differences between state and state are endless; but everywhere the tendency is to make the protection against local indebtedness and municipal extravagance more and more strict; nor will anyone who knows these local authorities, and the temptations, both good and bad, to which they are exposed, complain of the strictness.26

Cases, of course, occur in which a restriction on the taxing power or borrowing power of a municipality is found inconvenient, because a costly public improvement is rendered more costly if it has to be done piecemeal. The corporation of Brooklyn was thus prevented from making all at once a great street which would have been a boon to the city, and more money had to be spent in buying up the land for it bit by bit. But the evils which have followed in America from the immixture both of states and of cities in enterprises of a public nature, and the abuses incident to an unlimited power of undertaking improvements, have been so great as to make people willing to bear with the occasional inconveniences which are inseparable from restriction.

The provisions above described have had the effect of steadily reducing the amount of state and county debts, although the wealth of the country makes rapid strides. This reduction was between 1870 and 1880, about 25 per cent in the case of state debts, and in that of county, town, and school district debts about 8 per cent. In the decade ending with 1890 the reduction in state debts was $67,218,760 (nearly half of this, however, due to scaling down of debts of Southern states); but county debts rose from $124,105,027 to $145,048,045, and the school district debts from $17,580,682 to $36,701,948. In cities there was within the decade 1870–80, not only no reduction, but an increase of over 100 per cent, possibly as much as 130 per cent. In 1890 the total debt, less sinking fund, of municipalities exceeding 4,000 inhabitants was returned at $646,507,644 against $623,784,262 in 1880, but owing to the growth of population the amount per capita which was $45.06 in 1880, had fallen in 1890 to $31.69. In 1902, while the total state debt was, as above mentioned, $235,000,000, that of counties and minor civil divisions was $1,630,000,000.

This striking difference between the cities and the states may be explained in several ways. One is that cities cannot repudiate, while sovereign states can and do.28 Another may be found in the later introduction into state constitutions of restrictions on the borrowing powers of municipalities. But the chief cause is to be found in the conditions of the government of great cities, where the wealth of the community is largest, and is also most at the disposal of a multitude of ignorant voters. Several of the greatest cities lie in states which did not till recently, or have not even now, imposed adequate restrictions on the borrowing power of city councils. Now city councils, as we shall see presently, are not only incapable administrators, but are prone to such public improvements as present opportunities for speculation, for jobbery, and possibly even for wholesale embezzlement.

chapter 44

The Working of State Governments

The difficulty I have already remarked of explaining to Europeans the nature of an American state, viz., that there is in Europe nothing similar to it, recurs when we come to inquire how the organs of government which have been described play into one another in practice. To say that a state is something lower than the nation but greater than a municipality, is to say what is obvious, but not instructive; for the peculiarity of the state is that it combines some of the features which are to Europeans characteristic of a nation and a nation only, with others that belong to a municipality.

The state seems great or small according to the point of view from which one regards it. It is vast if one regards the sphere of its action and the completeness of its control in that sphere, which includes the maintenance of law and order, nearly the whole field of civil and criminal jurisprudence, the supervision of all local governments, an unlimited power of taxation. But if we ask, Who are the persons that manage this great machine of government; how much interest do the citizens take in it; how much reverence do they feel for it? the ample proportions we had admired begin to dwindle, for the persons turn out to be insignificant, and the interest of the people to have steadily declined. The powers of state authorities are powers like those of a European parliament; but they are wielded by men most of whom are less distinguished and less respected by their fellows than are those who fill the city councils of Manchester or Cologne. Several states exceed in area and population some ancient European monarchies. But their annals may not have been illumined by a single striking event or brilliant personality.

A further difficulty in describing how a state government works arises from the endless differences of detail between the several states. The organic frame of government is similar in all; but its functional activities vary according to the temper and habits, the ideas, education, and traditions of the inhabitants of the state. A European naturally says, “Select a typical state, and describe that to us.” But there is no such thing as a typical state. Massachusetts or Connecticut is a fair sample of New England, Minnesota or Iowa of the Northwest; Georgia or Alabama shows the evils, accompanied no doubt by great recuperative power, that still vex the South; New York and Illinois the contrast between the tendencies of an ignorant city mob and the steady-going farmers of the rural counties. But to take any one of these states as a type, asking the reader to assume what is said of it to apply equally to the other forty-seven commonwealths, would land us in inextricable confusions. I must therefore be content to speak quite generally, emphasizing those points in which the colour and tendencies of state governments are much the same over the whole Union, and begging the European reader to remember that illustrations drawn, as they must be drawn, from some particular state, will not necessarily be true of every other state government, because its life may go on under different conditions.

The state governments, as has been observed already, bear a family likeness to the national or federal government, a likeness due not only to the fact that the latter was largely modelled after the systems of the old thirteen states, but also to the influence which the federal Constitution has exerted ever since 1789 on those who have been drafting or amending state constitutions. Thus the federal Constitution has been both child and parent. Where the state constitutions differ from the federal, they invariably differ in being more democratic. It still expresses the doctrines of 1787. They express the views of later days, when democratic ideas have been more rampant, and men less cautious than the sages of the Philadelphia Convention have given legal form to popular beliefs. This difference, which appears not only in the mode of appointing judges, but in the shorter terms which the states allow to their officials and senators, comes out most clearly in the relations established between the legislative and the executive powers. The national executive, though disjoined from the legislature in a way strange to Europeans, is nevertheless all of a piece. The president is supreme; his ministers are his subordinates, chosen by him from among his political associates. They act under his orders; he is responsible for their conduct. But in the states there is nothing even distantly resembling a cabinet. The chief executive officials are directly elected by the people. They hold by a title independent of the state governor. They are not, except so far as some special statute may provide, subject to his directions, and he is not responsible for their conduct, since he cannot control it. As the governor need not belong to the party for the time being dominant in the legislature, so the other state officials need not be of the same party as the governor.1 They may even have been elected at a different time, or for a longer period.

A European, who studies the mechanism of state government—very few Europeans so far having studied it—is at first puzzled by a system which contradicts his preconceived notions. “How,” he asks, “can such machinery work? One can understand the scheme under which a legislature rules through officers whom it has, whether legally or practically, chosen and keeps in power. One can even understand a scheme in which the executive, while independent of the legislature, consists of persons acting in unison, under a head directly responsible to the people. But will not a scheme, in which the executive officers are all independent of one another, yet not subject to the legislature, want every condition needed for harmonious and efficient action? They obey nobody. They are responsible to nobody, except a people which only exists in concrete activity for one election day every two years, when it is dropping papers into the ballot box. Such a system seems the negation of a system, and more akin to chaos.”

In his attempts to penetrate this mystery, our European receives little help from his usually helpful American friends, simply because they do not understand his difficulty. Light dawns on him when he perceives that the executive business of a state is such as not to need any policy, in the European sense, and therefore no harmony of view or purpose among those who manage it. Everything in the nature of state policy belongs to the legislature, and to the legislature alone.

Compare the federal president with the state governor. The former has foreign policy to deal with, the latter has none. The former has a vast patronage, the latter has scarcely any. The former has the command of the army and navy, the latter has only that of the militia, insignificant in ordinary times. The former has a post office, but there is no state postal service. Little remains to the governor except his veto, which is not so much an executive as a legislative function; the duty of maintaining order, which becomes important only when insurrection or riot breaks out; and the almost mechanical duty of representing the state for various matters of routine, such as demanding from other states the extradition of offenders, issuing writs for the election of congressmen or of the state legislature, receiving the reports of the various state officials. These officials, even the highest of them who correspond to the cabinet ministers in the national government, are either mere clerks, performing work, such as that of receiving and paying out state moneys, strictly defined by statute, and usually checked by other officials, or else are in the nature of commissioners of inquiry, who may inspect and report, but can take no independent action of importance. Policy does not lie within their province; even in executive details their discretion is confined within narrow limits. They have, no doubt, from the governor downwards, opportunities for jobbing and malversation; but even the less scrupulous are restrained from using these opportunities by the fear of some investigating committee of the legislature, with possible impeachment or criminal prosecution as a consequence of its report. Holding for terms which seldom exceed two or three years, they feel the insecurity of their position; but the desire to earn reelection by the able and conscientious discharge of their functions, is a less effective motive than it would be if the practice of reelecting competent men were more frequent. Unfortunately here, as in Congress, the tradition of many states is, that when a man has enjoyed an office, however well he may have served the public, someone else ought to have the next turn.

The reason, therefore, why the system I have sketched rubs along in the several states is, that the executive has little to do, and comparatively small sums to handle. The further reason why it has so little to do is twofold. Local government is so fully developed that many functions, which in Europe would devolve on a central authority, are in all American states left to the county, or the city, or the township, or the school district. These minor divisions narrow the province of the state, just as the state narrows the province of the central government. And the other reason is, that legislation has in the several states pushed itself to the farthest limits, and so encroached on subjects which European legislatures would leave to the executive, that executive discretion is extinct, and the officers are the mere hands of the legislative brain, which directs them by statutes drawn with extreme minuteness, carefully specifies the purposes to which each money grant is to be applied, and supervises them by inquisitorial committees.

It is a natural consequence of these arrangements that state office carries little either of dignity or of power. A place is valued chiefly for its salary, or for such opportunities of obliging friends or securing commissions on contracts as it may present, though in the greatest states the post of attorney general or comptroller is often sought by able men. A state governor, however, has never been a nonentity and (as already observed) his post seems latterly to have been gaining importance. In more than one state a sort of perfume from the old days lingers round the office, as in Massachusetts, where the traditions of last century were renewed by the eminent man who occupied the chair of the commonwealth during the War of Secession and did much to stimulate and direct the patriotism of its citizens. Though no one would nowadays, like Mr. Jay in 1795, exchange the chief justiceship of the United States for the governorship of his state, a cabinet minister has been known to quit his place in order to obtain the governorship of a great state like New York. In all states, the governor, as the highest official and the depositary of state authority, may at any moment become the pivot on whose action public order turns. In the Pennsylvania riots of 1877 it was the accidental absence of the governor on a tour in the West which enabled the forces of sedition to gather strength. During the more recent disturbances which large strikes, especially among railway employees, have caused in the West, the prompt action of a governor has preserved or restored tranquillity in more than one state; while the indecision of the governor of an adjoining one has emboldened strikers to stop traffic, or to molest workmen who had been hired to replace them. So in a commercial crisis, like that which swept over the Union in 1837, when the citizens are panic-stricken and the legislature hesitates, much may depend on the initiative of the governor, to whom the eyes of the people naturally turn. His right of suggesting legislative remedies, usually neglected, then becomes significant, and may abridge or increase the difficulties of the community.

It is not, however, as an executive magistrate that a state governor usually makes or mars a reputation, but in his quasi-legislative capacity of agreeing to or vetoing bills passed by the legislature. The merit of a governor is usually tested by the number and the boldness of his vetoes; and a European enjoys, as I did in the state of New York in 1870, the odd spectacle of a governor appealing to the people for reelection on the ground that he had defeated in many and important instances the will of their representatives solemnly expressed in the votes of both houses. That such appeals should be made, and often made successfully, is due not only to the distrust which the people entertain of their legislatures, but also, to their honour be it said, to the respect of the people for courage. They like above all things a strong man; just as English constituencies prefer a candidate who refuses to swallow pledges or be dictated to by cliques.

This view of the governor as a check on the legislature explains why the Americans think it rather a gain than an injury to the state that he should belong to the party which is for the time being in a minority in the legislature. How the phenomenon occurs may be seen by noting the different methods of choice employed. The governor is chosen by a mass vote of all citizens over the state. The representatives are chosen by the same voters, but in districts. Thus one party may have a majority on a gross poll of the whole state, but may find itself in a minority in the larger number of electoral districts. In New York State at one time the mass vote shows a Democratic majority, because the Democrats are overwhelmingly strong in New York City, and some other great centres of population. But in the rural districts and most of the smaller towns the Republican party commands a majority sufficient to enable them to carry most districts. Hence, while the governor is usually a Democrat, the legislature is usually Republican. Little trouble need be feared from the opposition of the two powers, because such issues as divide the parties have scarce any bearing on state affairs. Some good may be hoped, because a governor of the other party is more likely to check or show up the misdeeds of a hostile Senate or Assembly than one who, belonging to the group of men which guides the legislature, has a motive for working with them, and might expect to share any gains they can amass.2

Thus we are led back to the legislature, which is normally the strongest force in the states, though sometimes a strong governor can by his influence with the people bend it to his will. Let us see how it gets on without that guidance which an executive ministry supplies to the chambers of every free European country.

As the frame of a state government generally resembles the national government, so a state legislature resembles Congress. In most states, it exaggerates the characteristic defects of Congress. It has fewer able and high-minded men among its members. It has less of recognized leadership. It is surrounded by temptations relatively greater. It is guarded by a less watchful and less interested public opinion. But before we inquire what sort of men fill the legislative halls, let us ask what kinds of business draw them there.

The matter of state legislation may be classified under three heads:

• I. Ordinary private law, i.e., contracts, torts, inheritance, family relations, offences, civil and criminal procedure;
• II. Administrative law, including the regulation of municipal and rural local government, public works, education, the liquor traffic, vaccination, adulteration, charitable and penal establishments, the inspection of mines or manufactories, together with the general law of corporations, of railroads, and of labour, together also with taxation, both state and local, and the management of the public debt;
• III. Measures of a local and special nature, such as are called in England “private bills,” i.e., bills for chartering and incorporating gas, water, canal, tramway, telephone or railway companies, or for conferring franchises in the nature of monopolies or privileges upon such bodies, or for altering their constitutions, for incorporating cities and minor communities and regulating their affairs.

Comparing these three classes of business, between the first and second of which it is no doubt hard to draw a sharp line, we shall find that bills of the second class are more numerous than those of the first, bills of the third more numerous than those of the other two put together. Ordinary private law, the law which guides or secures us in the everyday relations of life, and upon which nine-tenths of the suits between man and man are founded, is not greatly changed from year to year in the American states. Many Western, and a few Eastern states have made bold experiments in the field of divorce, others have added new crimes to the statute book and amended their legal procedure. But commercial law, as well as the law of property and civil rights in general, remains tolerably stable. People are satisfied with things as they are, and the influence of the legal profession is exerted against tinkering. In matters of the second class, which I have called administrative, because they generally involve the action of the state or of some of the communities which exist within it, there is more legislative activity. Every session sees experiments tried in this field, generally with the result of enlarging the province of government, both by interfering with the individual citizen and by attempting to do things for him which apparently he either does not do or does not do well for himself.3 But the general or “public” legislation is dwarfed by the “private bill” legislation which forms the third of our classes. The bills that are merely local or special outnumber general bills everywhere, and outnumber them enormously in those states which do not require corporations to be formed under general laws.4 Such special bills are condemned by thoughtful Americans, not only as confusing the general law, but because they furnish, unless closely watched, opportunities for perpetrating jobs, and for inflicting injustice on individuals or localities in the interest of some knot of speculators. They are one of the scandals of the country. But there is a further objection to their abundance in the state legislatures. They are a perennial fountain of corruption. Promoted for pecuniary ends by some incorporated company or group of men proposing to form a company, their passage is secured by intrigue, and by the free expenditure of money which finds its way in large sums to the few influential men who control a state Senate or Assembly, and in smaller sums to those among the rank and file of members who are accessible to these solid arguments, and careless of any others. It is the possibility of making profit in this way out of a seat in the legislature which draws to it not a few men in those states which, like New York, Pennsylvania, or Illinois, offer a promising field for large pecuniary enterprises. Where the carcase is there will the vultures be gathered together. The money power, which is most formidable in the shape of large corporations, chiefly attacks the legislatures of these great states. It is, however, felt in nearly all states.5 And even where, as is the case in most states, only a small minority of members are open to bribes, the opportunity which these numerous local and special bills offer to a man of making himself important, of obliging his friends, of securing something for his locality, and thereby confirming his local influence, is sufficient to make a seat in the legislature desired chiefly in respect of such bills, and to obscure, in the eyes of most members, the higher functions of general legislation which these assemblies possess. One may apply to these commonwealths, though in a new sense, the famous dictum, corruptissima republica plurimae leges.

One form of this special legislation is peculiarly attractive and pernicious. It is the power of dealing by statute with the municipal constitution and actual management of cities. Cities grow so fast that all undertakings connected with them are particularly tempting to speculators. City revenues are so large as to offer rich plunder to those who can seize the control of them. The vote which a city casts is so heavy as to throw great power into the hands of those who control it, and enable them to drive a good bargain with the wire-pullers of a legislative chamber. Hence the control exercised by the state legislature over city government is a most important branch of legislative business, a means of power to scheming politicians, of enrichment to greedy ones, and if not of praise to evil-doers, yet certainly of terror to them that do well.6

We are now in a position, having seen what the main business of a state legislature is, to inquire what is likely to be the quality of the persons who compose it. The conditions that determine their quality may be said to be the following:

• I. The system of selection by party conventions. As this will be described in subsequent chapters (Part III), I will here say no more than that it prevents the entrance of good men and favours that of bad ones.
• II. The habit of choosing none but a resident in any electoral district to represent that district, a habit which narrows the field of choice, and not only excludes competent men from other parts of the state, but deters able men generally from entering state politics, since he who loses his seat for his own district cannot find his way back to the legislature as member for any other.
• III. The fact that the capital of a state, i.e., the meeting place of the legislature and residence of the chief officials, is usually a small town, at a distance from the most populous city or cities of the state, and therefore a place neither attractive socially nor convenient for businessmen or lawyers, and which, it may be remarked in passing, is more shielded from a vigilant public opinion than is a great city, with its keen and curious press. Pennsylvanians who might be willing to serve in a legislature meeting at Philadelphia are less inclined to attend one at Harrisburg. An eminent citizen of Connecticut observed to me that, whereas everybody in that little state could reach Hartford in a few hours from its farthest corner, a member attending the legislature of Illinois or Wisconsin might often have to quit his home and live during the session at Springfield or Madison, because these capitals are remote from the outer parts of those large commonwealths. He thought this a factor in the comparative excellence of the Connecticut legislature.
• IV. The nature of the business that comes before a state legislature. As already explained, by far the largest part of this business excites little popular interest and involves no large political issues.7 Unimportant it is not. Nothing could well be more important than to repress special legislation, and deliver cities from the fangs of the spoiler. But its importance is not readily apprehended by ordinary people, the mischiefs that have to be checked being spread out over a multitude of bills, most of them individually insignificant, however ruinous in their cumulated potency. Hence, though a public-spirited or ambitious youth may enter a state legislature in order to become known there and work his way upward, a leading politician seldom troubles himself to seek a seat, while the men who combine high character with talent and energy are too much occupied in practising their profession or pushing their business to undertake the dreary task of wrangling over gas and railroad bills in committees, or exerting themselves to win some advantage for the locality that returns them.

I have not mentioned among these depressing conditions the payment of salaries to members, because it makes little difference. It is no doubt an attraction to some of the poorer men, to penurious farmers, or half-starved lawyers. But in attracting them it does not serve to keep out any better men. Probably the sense of public duty would be keener if legislative work was not paid at all. But, looking at the question practically, I doubt whether the discontinuance of salaries would improve the quality of American legislators. The drawbacks to the position which repel the best men, the advantages which attract inferior men, would remain the same as now; and there is nothing absurd in the view that the places of those who might cease to come if they did not get their five dollars a day would be taken by men who would manage to make as large an income in a less respectable way.

After this, it need scarcely be said that the state legislatures are not high-toned bodies. The best seem to be those of some of the New England states, particularly Massachusetts, where the venerable traditions surrounding an ancient commonwealth do something to sustain the dignity of the body and induce good men to enter it. This legislature, called the General Court, is, according to the best authorities, substantially pure, and does its work passably well. Its composition is, however, said to be inferior to that of the General Courts of eighty years ago. Connecticut has a fair Senate, and a tolerable House of Representatives. It is also reported to be reasonably honest, though not free from demagogism. Vermont is pure; New Hampshire, a state where bossism throve and constituencies used to be reproached with bribery, is more open to censure.8 Next come some of the Northwestern states, where the population, consisting almost entirely of farmers, who own as well as work their land, sends up members who fairly represent its average intelligence, and are little below the level of its average virtue. There are no traditions in such states, and there are already corporations rich enough to corrupt members and be themselves blackmailed. Hence one is prepared to find among the legislators professional politicians of the worst class. But the percentage of such men is small in states like Michigan, Iowa, Minnesota, Wisconsin, Oregon, probably not more than from 5 to 15 per cent, the other members being often ignorant and narrow, but honest and well-intentioned. In Ohio and Indiana the proportion of black sheep may be a little higher, and in some Western states, such as Missouri and Montana, there have now and then been grave scandals.

It is hard to present a general view of the Southern states, both because there are great differences among them, and because they are still in a state of transition, generally, it would seem, transition towards a better state of things. Roughly speaking, their legislatures stand below those of the Northwest, though in most a few men of exceptional ability and standing may be found. Kentucky and Georgia are among the better states, Mississippi and Arkansas are reported as among the less pure. Louisiana, infected by New Orleans, has been deemed the worst.

The lowest place belongs to the states which, posessing the largest cities, have received the largest influx of European immigrants, and have fallen most completely under the control of unscrupulous party managers. New York, Philadelphia, Baltimore, Chicago, Cincinnati, San Francisco, have done their best to poison the legislatures of the states in which they respectively lie by filling these bodies with members of a low type, as well as by being themselves the centres of enormous accumulations of capital. They have brought the strongest corrupting force into contact with the weakest and most corruptible material: and there has followed in Pennsylvania and New York such a Witches’ Sabbath of jobbing, bribing, thieving, and prostitution of legislative power to private interest as the world has seldom seen. Of course even in these states the majority of the members are not bad men, for the majority come from the rural districts or smaller towns, where honesty and order reign as they do generally in Northern and Western America outside a few large cities. Many of them are farmers or small lawyers, who go up meaning to do right, but fall into the hands of schemers who abuse their inexperience and practise on their ignorance. One of the ablest and most vivacious of the younger generation of American politicians9 says:

The same writer goes on to say that after sitting in three New York legislatures he came to think that about one-third of the members were open to corrupt influences, but that although the characters of those men were known to their colleagues and to the “lobby,” it was rarely possible to convict them. Many of this worst third had not gone into the legislature meaning to make gain out of the position, but had been corrupted by it. They found that no distinction was to be won there by legitimate methods, and when temptation came in their way they fell, having feeble consciences and no statesmanlike knowledge. Or they were anxious above all things to pass some local measure on which their constituents were set, and they found they could not win the support of other members except by becoming accomplices in the jobs or “steals” which these members were “putting through.” Or they gained their seat by the help of some influential man or powerful company, and found themselves obliged to vote according to the commands of their “owner.” 11

The corrupt member has several methods of making gains. One, the most obvious, is to exact money or money’s worth for his vote. A second is to secure by it the support of a group of his colleagues in some other measure in which he is personally interested, as for instance a measure which will add to the value of land near a particular city. This is “logrolling,” and is the most difficult method to deal with, because its milder forms are scarcely distinguishable from that legitimate give and take which must go on in all legislative bodies. It is, however, deemed so mischievous, that several constitutions have expressly enacted that it shall be held to constitute the offence of solicitation or bribery, and be punishable accordingly.12 A third is blackmailing. A member brings in a bill either specially directed against some particular great corporation, probably a railway, or proposing so to alter the general law as in fact to injure such a corporation, or a group of corporations. He intimates privately that he is willing to “see” the directors or the law-agents of the corporation, and is in many cases bought off by them, keeping his bill in the paper till the last moment so as to prevent some other member from repeating the trick. Even in the Northwestern states there is usually a group of such “scallawag” members, who, finding the $300 they receive insufficient, increase their legislative income by levying this form of taxation upon the companies of the state. Nor is the device (technically called a “strike”) quite unknown in New England, where a ten hours’ labour bill, for instance, has frequently been brought in to frighten the large corporations and other capitalists into inducing its author to drop it, the inducements being such as capitalists can best apply. Every considerable railway keeps an agent or agents continually on the spot while a state legislature is in session, watching the bills brought in and the committees that deal with them. Such an agent sometimes relies on the friends of the railway to defeat these bills, and uses the usual expedients for creating friends. But it is often cheaper and easier to square the assailant.13 Of course the committees are the focus of intrigue, and the chairmanship of a committee the position which affords the greatest facilities for an unscrupulous man. Round the committees there buzzes that swarm of professional agents which Americans call “the lobby,” soliciting the members, threatening them with trouble in their constituencies, plying them with all sorts of inducements, treating them to dinners, drinks, and cigars.14

In these demoralized states the state Senate is apt to be a worse body than the House, whereas in the better states the Senate is usually the superior body.15 The reason is twofold. As the Senate is smaller—in New York it consists of 51 members against 150 in the Assembly—the vote of each member is of more consequence, and fetches, when venal, a higher price. Other things being equal, a stronger temptation is more likely to overcome virtue, and other things practically are equal, because it is just as hard to fix responsibility on a senator as on an assemblyman, and the post is no more dignified. And the second reason is that the most adroit and practised intriguers work their way up into the Senate, where their power (which includes the confirmation of appointments) is greater and their vote more valuable. There is a survival of the fittest, but as fitness includes the absence of scruples, this comes in practice to mean the natural selection of the worst.

I escape from this Stygian pool to make some observations which seem applicable to state legislatures generally, and not merely to the most degraded.

The spirit of localism, surprisingly strong everywhere in America, completely rules them. A member is not a member for his state, chosen by a district but bound to think first of the general welfare of the commonwealth. He is a member for Brownsville, or Pompey, or the Seventh District, and so forth, as the case may be. His first and main duty is to get the most he can for his constituency out of the state treasury, or by means of state legislation. No appeal to the general interest would have weight with him against the interests of that spot. What is more, he is deemed by his colleagues of the same party to be the sole exponent of the wishes of the spot, and solely entitled to handle its affairs. If he approves a bill which affects the place and nothing but the place, that is conclusive. Nobody else has any business to interfere. This rule is the more readily accepted, because its application all round serves the private interest of every member alike, while members of more enlarged views, who ought to champion the interests of the state and sound general principles of legislation, are rare. When such is the accepted doctrine as well as invariable practice, logrolling becomes natural and almost legitimate. Each member being the judge of the measure which touches his own constituency, every other member supports that member in passing the measure, expecting in return the like support in a like cause. He who in the public interest opposes the bad bill of another, is certain to find that other opposing, and probably with success, his own bill, however good.

The defects noted (Chapters 14–17) as arising in Congress from the want of recognised leadership and of persons officially bound to represent and protect the interests of the people at large reappear in the state legislatures, on a smaller scale, no doubt, but in an aggravated form, because the level of ability is lower and the control of public opinion less. There is no one to withstand the petty localism already referred to; no one charged with the duty of resisting proposals which some noisy section may demand, but whose ultimate mischief, or pernicious effect as precedents, thoughtful men perceive. There are members for districts, but no members for the people of the state. Thus many needless bills and many bad bills are passed. And when some difficult question arises, it may happen that no member is found able to grapple with it. Sometimes the governor comes to the rescue by appointing a commission of eminent men to devise and suggest to the legislature a measure to deal with the question. Sometimes the constitution contains a provision that the judges shall report upon all defects in the judicial system in order that the needed reform may be thereupon carried.16 Such are the roundabout ways in which efforts are made to supply the want of capacity in the legislators, and the absence of a proper system of cooperation between the executive and legislative departments.

A remarkable and important new departure was made in New York State in 1909 by the creation of a body called the Public Utilities Commission charged with the duty of dealing with the agencies of transportation and other public services. Its action is expected to remedy the evils which have arisen not only from the frequent exercise of improper influences by public service corporations, but also from the fragmentary and unsystematic way in which legislatures have treated these matters.

There is in state legislators, particularly in the West, a restlessness which, coupled with their limited range of knowledge and undue appreciation of material interests, makes them rather dangerous. Meeting for only a few weeks in the year, or perhaps in two years, they are alarmingly active during those weeks, and run measures through whose results are not apprehended till months afterwards. It is for this reason, no less than from the fear of jobbery, that the meeting of the legislature is looked forward to with anxiety by the “good citizens” in these communities, and its departure hailed as a deliverance. I once asked the governor of a far Western commonwealth how he got on with his legislature. “I won’t say they are bad men,” he answered, “but the pleasantest sight of the year to me is when at the end of the session I see their coat tails go round the street corner.”

Both this restlessness and the general character of state legislation are illustrated by the enormous numbers of bills introduced in each session. Comparatively few pass, because the time is too short, or opposing influences can be brought to bear on the committees; yet those that do pass reach a high total.

The annual output of all the legislatures has been estimated at 15,000 statutes.17 From 1899 to 1904, the number passed was 45,552. In 1909 there were passed in Maryland 741 acts, in California 729, in Pennsylvania 650, in New York 596, and in North Carolina 1,319. The large majority of these were local or special, intended to further the interests of particular persons or places.18 In 1901 eight fairly typical states passed 7,032 statutes, of which 5,876 were local or special. Acts of incorporation, grants of inheritance, changes of names and releases from indebtedness, thus consume a large proportion of the time of the legislature at a great public expense, and often to the serious detriment of public interests, because it is through these bills that jobs are perpetrated. The expense to which the states are put by their legislatures, with results rather injurious than beneficial, is very great. Some years ago it was estimated that the cost of laws in the states varied from an average of about $1,000 per diem for every legislative session to over $4,000 per diem, making an aggregate, in the whole number of states, which could not be less than $10,000,000, not as an exceptional outlay, but as the price paid for current legislation.

Nothing is more remarkable about these state legislators than their timidity. No one seems to think of having an opinion of his own. In matters which touch the interests of his constituents, a member is, of course, their humble servant. In burning party questions—they are few, and mostly personal—he goes with his party. In questions of general public policy he looks to see how the cat jumps; and is ready to vote for anything which the people, or any active section of the people, cry out for, though of course he may be secretly unfriendly, and may therefore slyly try to spoil a measure. This want of independence has some good results. It enables a small minority of zealous men, backed by a few newspapers, to carry schemes of reform which the majority regard with indifference or hostility. Thus in bodies so depraved as the legislatures of New York and Pennsylvania, bills have lately been passed greatly improving the charters of cities, creating a secret ballot, and even bettering the civil service and establishing an improved system of appointments to office. A few energetic reformers went to Albany and Harrisburg to strengthen the hands of the little knot of members who battle for good government there, and partly frightened, partly coaxed a majority of the Senate and House into adopting proposals opposed to the interests of professional politicians. About 1880, two or three high-minded and sagacious ladies obtained by their presence at Albany the introduction of valuable reforms into the charitable institutions of New York City. The ignorance and heedlessness of the “professionals,” who do not always see the results of legislative changes, and do not look forward beyond the next few months, help to make such triumphs possible; and thus, as the Bible tells us that the wrath of man shall praise God, the faults of politicians are turned to work for righteousness.

In the recent legislation of many states, especially Western states, there is a singular mixture of philanthropy and humanitarianism with the folly and jobbery I have described, like threads of gold and silver woven across a warp of dirty sacking. Every year sees bills passed to restrict the sale of liquor, to prevent the sale of indecent or otherwise demoralizing literature, to protect women and children, to stamp out lotteries and gambling houses, to improve the care of the blind, the insane, and the poor, which testify to a warm and increasing interest in all good works. These measures are to be explained, not merely by that power which an active and compact minority enjoys of getting its own way against a crowd of men bent each on his own private gain, and therefore not working together for other purposes, but also by the real sympathy which many of the legislators, especially in the rural districts, feel for morality and for suffering. Even the corrupt politicians of Albany were moved by the appeals of the philanthropic ladies to whom I have referred; much more then would it be an error to think of the average legislator as a bad man, merely because he will join in a job, or try to blackmail a railroad. The moral standard of Western America is not quite the same as that of England, just as the standard of England differs from that of Germany or France. It is both higher and lower. Some sins excite more anger or disgust than they do in England; some are more lightly forgiven, or more quickly forgotten. Laxity in the discharge of a political trust belongs to the latter category. The newspapers accuse everybody; the ordinary citizen can seldom tell who is innocent and who is guilty. He makes a sort of compromise in his own mind by thinking nobody quite black, but everybody gray. And he goes on to think that what everybody does cannot be very sinful.

Note to the Edition of 1910

Reviewing the facts dealt with in this chapter, I find them to be still, broadly speaking, the same as they were in 1892; the factors working for good and for evil having not greatly changed. However, the tendency of recent years seems to be in most states towards better legislation, and especially towards a more active and vigilant control of legislative bodies by the public opinion. The legislature of New York, for instance, is probably no purer than formerly, and may do as many jobs at the instance of private interests as formerly, but its public acts are better, and it sometimes drops a job in deference to the opinion of good citizens. Moreover the legislature is now in some states curbed by the referendum. In some of the Western and Southern states plenty of crude measures and a few wild measures are still passed, and in most states private interests still have too much power in securing the legislation they want. But there has been enough progress to make the outlook hopeful. What seems now most needed is the separation of private (i.e., local and personal) bills from general public legislation, and the provision of some mode for dealing with them on general principles and, if possible, by quasi-judicial methods. The New York Public Utilities Commission is an experiment in this direction from which much may be hoped. But anyone who knows how useful the quasi-judicial methods applied in England to private legislation have proved cannot but wish that they were better known in the American states.

Note to the Edition of 1914

Upon the subject mentioned in the last preceding sentence I may refer to an address delivered by me to the New York State Bar Association published in a volume entitled Addresses, University and Historical, in 1913. The upward tendency referred to in the preceding note seems to be maintained.

chapter 45

Remedies for the Faults of State Governments

The defects in state governments, which our examination of their working has disclosed, are not those we should have expected. It might have been predicted, and it was at one time believed, that these authorities, consumed by jealousy and stimulated by ambition, would have been engaged in constant efforts to extend the sphere of their action and encroach on the national government. This does not happen, and seems most unlikely to happen. The people of each state are now not more attached to the government of their own commonwealth than to the federal government of the nation, whose growth has made even the greatest state seem insignificant beside it.

A study of the frame of state government, in which the executive department is absolutely severed from the legislative, might have suggested that the former would become too independent, misusing its powers for personal or party purposes, while public business would suffer from the want of concert between the two great authorities, that which makes and that which carries out the law.

This also has proved in practice to be no serious evil. The legislature might indeed conceivably work better if the governor, or some of his chief officials, could sit in it and exercise an influence on its deliberations. Such an approach to the European cabinet system has, however, never been thought of for American states; and the example of the provincial legislatures of Canada, in each of which there is a responsible ministry sitting in the legislature, does not seem to recommend it for imitation. Those who founded the state governments did not desire to place any executive leaders in a representative assembly. Probably they were rather inclined to fear that the governor, not being accountable to the legislature, would retain too great an independence. The recent creation of various administrative officers or boards has gone some way to meet the difficulties which the incompetence of the legislatures causes, for these officers or boards frequently prepare bills which some member of the legislature introduces, and which are put through without opposition, perhaps even without notice, except from a handful of members. On the whole, the executive arrangements of the state work well, though they might, in the opinion of some judicious publicists, be improved by vesting the appointment of the chief officials in the governor, instead of leaving it to direct popular election. This would tend to give more unity of purpose and action to the administration. The collisions which occur in practice between the governor and the legislature relate chiefly to appointments, that is to say, to personal matters, not involving issues of state policy.

The real blemishes in the system of state government are all found in the composition or conduct of the legislatures. They are the following:

• Inferiority in point of knowledge, of skill, and sometimes of conscience, of the bulk of the men who fill these bodies
• Improvidence in matters of finance
• Heedlessness in passing administrative bills
• Want of proper methods for dealing with local and special bills
• Failure of public opinion adequately to control legislation, and particularly local and special bills.

The practical result of these blemishes has been to create a large mass of state and local indebtedness which ought never to have been incurred, to allow foolish experiments in lawmaking to be tried, and to sanction a vast mass of private enterprises, in which public rights and public interests become the sport of speculators, or a source of gain to monopolists, with the incidental consequence of demoralizing the legislators themselves and creating an often unjust prejudice against all corporate undertakings.

What are the checks or remedies which have been provided to limit or suppress these evils? Anyone who has followed the account given of the men who compose the legislatures and the methods they follow will have felt that these checks must be considerable, else the results would have been worse than those we see. All remedies are directed against the legislative power, and may be arranged under four heads.

First, there is the division of the legislature into two houses. A job may have been smuggled through one house, but the money needed to push it through the other may be wanting. Some wild scheme, professing to benefit the farmers, or the cattlemen, or the railroad employees, may, during its passage through the Assembly, rouse enough attention from sensible people to enable them to stop it in the Senate. The mere tendency of two chambers to disagree with one another is deemed a benefit by those who hold, as the Americans do, that every new measure is prima facie likely to do more harm than good. Most bills are bad—ergo, kill as many as you can. Each house, moreover, has, even in such demoralized state legislatures as those of New York or Pennsylvania, a satisfaction, if not an interest, in unveiling the tricks of the other.

Secondly, there is the veto of the governor. How much the Americans value this appears from the fact that, whereas in 1789 there was only one state, Massachusetts, which vested this power in the chief magistrate, all of the now existing states except one give it to him. Some constitutions (including all the new ones) contain the salutary provision that the governor may reject one or more items of an appropriation bill (sometimes even of any bill) while approving the bill as a whole; and this has been found to strengthen his hands immensely in checking the waste of public money on bad enterprises. This veto power, the great standby of the people of the states, illustrates admirably the merits of concentrated responsibility. The citizens, in choosing the governor to represent the collective authority of the whole state, lay on him the duty of examining every bill on its merits. He cannot shelter himself behind the will of the representatives of the people, because he is appointed to watch and check those representatives as a policeman watches a suspect. He is bound to reject the bill, not only if it seems to him to infringe the constitution of the state, but also if he thinks it in any wise injurious to the public, on pain of being himself suspected of carelessness, or of complicity in some corrupt design. The legislature may, of course, pass the bill over his veto by a two-thirds vote; but although there may exist a two-thirds majority in favour of the measure, they may fear, after the veto has turned the lamp of public opinion upon it, to take so strong a step. There are, of course, great differences between one governor and another, as well as between one state and another, as regards the honesty with which the power is exercised, for it may be, and sometimes is, used by a “Ring” governor to defeat measures of reform. But it is a real and effective power everywhere; and in the greatest states, where the importance of the office often secures the election of an able and courageous man, it has done inestimable services.1

Thirdly, there are limitations imposed on the competence of the legislature. I have already mentioned some of these limitations, the most numerous, and at present the most important of which relate to special and local (or what would be called in England “private”) bills. These bills, while they destroy the harmony and simplicity of the law, and consume the time of the legislature, are also so fertile a source of jobbery2 that to expunge them or restrict them to cases where a special statute was really needed, would be a great benefit. The constitutional prohibitions described effect this to some extent. Illinois, for instance, has by such prohibitions reduced her sessional statutes to about three hundred pages, and Iowa averages only two hundred to two hundred and fifty pages, whereas the Wisconsin statutes of 1885 reached two thousand pages, there being in that state far less effective restrictions. But the powers of evil do not yield without a battle. All sorts of evasions are tried, and some succeed. Suppose, for instance, that there is a prohibition in the Constitution of New York to pass any but general laws relating to the government of cities. An act is passed which is expressed to apply to cities with a population exceeding one hundred thousand but less than two hundred thousand. There happens to be then only one such city in the state, viz., Buffalo, but as there might be more, the law was deemed general, and escaped the prohibition. So the Constitution of Ohio expressly provides that the legislature “shall pass no special act conferring corporate powers.” But in 1890 nearly fifty such acts were passed, the provision being evaded by the use of general enacting words which can in fact apply only to one place. One act, for instance, authorized villages with a population of not less than 1,903 nor more than 1,912 to issue bonds for natural gas developments; another empowered any city having a population of 15,435, by the census of 1890, to levy a library tax.3

Provisions against special legislation are evaded in another way, viz., by passing acts which, because they purport to amend general acts, are themselves deemed general. Here is a recent instance. The Constitution of New York prohibits the legislature from passing any private or local act incorporating villages, or providing for building bridges. A general act was passed in 1885 for the incorporation of villages, with general provisions as to bridges. Next year the following act was passed, which I give verbatim. It amends the act of 1885, by taking out of it all the counties in the state except Westchester, and then excludes application of the act to two towns in Westchester. It is thus doubly a “private or local act,” but the prohibition of the constitution was got round.4

CHAP. 556.

AN ACT to amend chapter two hundred and ninety-one of the laws of eighteen hundred and seventy, entitled “An Act for the Incorporation of Villages.”

Where evasions of this kind become frequent the confusion of the statute book is worse than ever, because you cannot tell without examination whether an act is general or special.

The reader will have noticed in the heading of the act just quoted the words “three-fifths being present.” This is one of the numerous safeguards imposed on the procedure of the state legislatures. Others have been specified in Chapter 40. Their abundance in the newest constitutions shows how these efforts to deal with the symptoms have failed to eradicate the endless evasions they seek to anticipate.5

The inventive genius of American legislators finds or makes many holes in the net which the people have tried to throw over them by the constitution. Yet, though there be none of the restrictions and regulations mentioned which is not sometimes violated or evaded, they have, on the whole, worked well. The enemy is held at bay, and a great deal of bad legislation is prevented. Some bills have to be dropped, because too plainly repugnant to the constitution to be worth carrying farther. The more ignorant members do not always apprehend where the difficulty lies. They can barely read the constitution, and the nature of its legal operation is as far beyond them as the cause of thunder is beyond cats. A friend of mine who sat for some years in the New York Assembly was once importuned by an Irish member to support that particular member’s little bill. He answered that he could not, because the bill was against the constitution. “Och, Mr. Robert,” was the reply, “shure the Constitootion should niver be allowed to come between friends.”

Some bills again the governor can scarcely help vetoing, because they violate a constitutional restriction; while of those that pass him unscathed, a fair number fall victims to the courts of law. It may be added that the enforcement of the limitations imposed by a state constitution necessarily rests with the judges, since it is they who pronounce, if and when the point is brought up in a suit between parties, whether or no a statute has transgressed the bounds which the fundamental instrument sets, or whether a constitutional amendment has been duly carried.6

Someone may remark that there are two material differences between the position of these state judges and that of the federal judges. The latter are not appointed by a state, and are therefore in a more independent position when any question of conflict between state laws or constitutions and the federal Constitution or statutes comes before them. Moreover they hold office for life, whereas the state judge usually holds for a term of years, and has his reelection to think of. Can the state judge then be expected to show himself equally bold in declaring a state statute to be unconstitutional? Will he not offend the legislature, and the party managers who control it, by flying in their faces?

The answer is that although the judge may displease the legislature if he decides against the validity of an unconstitutional statute, he may displease the people if he decides for it; and it is safer to please the people than the legislature. The people at large may know little about the matter, but the legal profession know, and are sure to express their opinion. The profession look to the courts to save them and their clients from the heedlessness or improbity of the legislature, and will condemn a judge who fails in this duty. Accordingly, the judges seldom fail. They knock about state statutes most unceremoniously, and they seldom suffer for doing so. In one case only is their position a dangerous one. When the people, possessed by some strong desire or sentiment, have either by the provisions of a new constitution, or by the force of clamour, driven the legislature to enact some measure meant to cure a pressing ill, they may turn angrily upon the judge who holds that measure to have been unconstitutional. This has several times happened, and is always liable to happen where elective judges hold office for short terms, with the unfortunate result of weakening the fortitude of the judges. In 1786 the Supreme Court of Rhode Island decided that an act passed by the legislature was invalid, because contravening the provisions of the colonial charter (which was then still the constitution of the state), securing to every accused person the benefit of trial by jury.7

The legislature were furious, and summoned the judges to appear before them and explain the grounds of their decision. The attempt to dismiss them failed, but the judges were not reelected by the legislature when their term of office expired at the end of the year. In Ohio, the legislature passed in 1805 an act which Judge Pease, in a case arising under it, held to be repugnant to the Constitution of Ohio, as well as to the federal Constitution, and accordingly declined to enforce. In 1808, he and another judge of the supreme court of the state who had concurred with him, were impeached by the House before the Senate of Ohio, but were acquitted. In 1823, the Supreme Court of Kentucky held invalid a debtors’ relief act passed by the legislature on the ground that it violated the obligation of contracts clause of the federal Constitution by making paper issued by a state bank legal tender. The judges were impeached, but a two-thirds majority for conviction could not be obtained, so the angry legislature extinguished the court itself and created a new court of appeals, to which the governor appointed new men as judges. The old court, however, held its ground, insisting that the new court was unconstitutional, and after a passionate struggle, a new legislature repealed in 1825 the act creating the new court. So justice and reason prevailed. In 1871, the legislature of Illinois passed a law, intending to carry out a provision of the Constitution of 1870, which was held unconstitutional by Judge Lawrence, greatly to the disappointment of the farmers, who had expected valuable results from it. He was not impeached, but when shortly afterwards he sought reelection, he was defeated solely on the ground of this decision.8 These instances show that the courts have had to fight for their freedom in the discharge of the duty which the constitutions throw on them. But the paucity of such conflicts shows that this freedom is now generally recognized, and may be deemed, at least for the present, to be placed above the storm of popular passion.9

It will be seen from what has been said that the judges are an essential part of the machinery of state government. But they are so simply as judges, and not as invested with political powers or duties. They have not received, any more than the federal judges, a special commission to restrain the legislature or pronounce on the validity of its acts. There is not a word in the state constitutions, any more than in the federal Constitution, conferring any such right upon the courts, or indeed conferring any other right than all courts of law must necessarily enjoy. When they declare a statute unconstitutional they do so merely in their ordinary function of expounding the law of the state, its fundamental law as well as its laws of inferior authority, just as an English judge might hold an order made by the king in council to be invalid, because in excess of the powers granted by the act of Parliament under which it was made. It would be as clearly the duty of an English county court judge so to hold as of the highest court of appeal. So it is the duty of the humblest American state judge to decide on the constitutionality of a statute.

So far we have been considering restrictions imposed on the competence of the legislature, or on the methods of its procedure. We now come to the fourth and last of the checks which the prudence of American states imposes. It is a very simple, not to say naive, one. It consists in limiting the time during which the legislature may sit. Formerly these bodies sat, like the English Parliament, so long as they had business to do. The business seldom took long. When it was done, the farmers and lawyers naturally wished to go home, and home they went. But when the class of professional politicians grew up, these wholesome tendencies lost their power over a section of the members. Politics was their business, and they had none other to call them back to the domestic hearth.10 They had even a motive for prolonging the session, because they prolonged their legislative salary, which was usually paid by the day. Thus it became the interest of the taxpayer to shorten the session; and he had already a still stronger interest in cutting short the jobs and improvident bestowal of moneys and franchises in which he found his representatives employed. Accordingly most states have fixed a number of days beyond which the legislature may not sit. Many of these fix it absolutely; but a few prefer the method of cutting off the pay of their legislators after the prescribed number of days has expired, so that if they do continue to devote themselves still longer to the work of lawmaking, their virtue shall be its own reward.11 Experience has, however, disclosed a danger in these absolutely limited sessions. It is that of haste and recklessness in rushing bills through without due discussion. Sometimes it happens that a bill introduced in response to a vehement popular demand is carried with a rush (so to speak), because the time for considering it cannot be extended, whereas longer consideration would have disclosed its dangers. An ill-framed railway bill was thus defeated in the Iowa legislature because full discussion (there being no time limit) brought out its weak points. Hence some states have largely extended their sessions. Thus California in 1907 abolished the provision which limited payment to a regular session of sixty days, substituting a general limit of $1,000 to each member whatever the length of the session; and Colorado in 1885 extended the maximum of her session from forty to ninety days, also raising legislative pay from $4 to $7 per diem.

The Americans seem to reason thus: “Since a legislature is very far gone from righteousness, and of its own nature inclined to do evil, the less chance it has of doing evil the better. If it meets, it will pass bad laws. Let us therefore prevent it from meeting.”

They are no doubt right as practical men. They are consistent, as sons of the Puritans, in their application of the doctrine of original sin. But this is a rather pitiful result for self-governing democracy to have arrived at.

“Is there not,” someone may ask, “a simpler remedy? Why all these efforts to deal with the symptoms of the malady, instead of striking at the root of the malady itself? Why not reform the legislatures by inducing good men to enter them, and keeping a more constantly vigilant public opinion fixed upon them?”

The answer to this very pertinent question will be found in the chapters of Part III which follow. I will only so far anticipate what is there stated as to observe that the better citizens have found it so difficult and troublesome to reform the legislatures that they have concluded to be content with curing such and so many symptoms as they can find medicines for, and waiting to see in what new direction the virus will work. “After all,” they say, “the disease, though it is painful and vexing, does not endanger the life of the patient, does not even diminish his strength. The worst that the legislatures can do is to waste some money, and try some foolish experiments from which the good sense of the people will presently withdraw. Everyone has his crosses to bear, and ours are comparatively light.” All which is true enough, but ignores two important features in the situation, one, that the constitutional organs of government become constantly more discredited, the other that the tremendous influence exerted by wealth and the misuse of public rights permitted to capitalists, and especially to companies, have created among the masses of the people ideas which may break out in demands for legislation of a new and dangerous kind.

The survey of the state governments which we have now completed suggests several reflections.

One of these is that the political importance of the states is no longer what it was in the early days of the Republic. Although the states have grown enormously in wealth and population, they have declined relatively to the central government. The excellence of state laws and the merits of a state administration make a great difference to the inhabitants, but the more thorough consolidation of the country and the fact that some of the most important questions, such as those relating to trusts and to railroads, are questions in which the hand of the national government is felt, dispose people to look rather to the latter. The matters which the state deals with, largely as they influence the welfare of the citizen, do not touch his imagination like those which Congress handles, because the latter determine the relations of the Republic to the rest of the world, and affect all the area that lies between the two oceans. The state set out as an isolated and self-sufficing commonwealth. It is now merely a part of a far grander whole, which seems to be slowly absorbing its functions and stunting its growth, as the great tree stunts the shrubs over which its spreading boughs have begun to cast their shade.

I do not mean to say that the people have ceased to care for their states; far from it. They are proud of their states, even where there may be little to be proud of. That passionate love of competition which possesses English-speaking men, makes them eager that their state should surpass the neighbouring states in the number of the clocks it makes, the hogs it kills, the pumpkins it rears, that their particular star should shine at least as brightly as the other forty-seven in the national flag. But if these commonwealths meant to their citizens what they did in the days of the Revolution, if they commanded an equal measure of their loyalty, and influenced as largely their individual welfare, the state legislatures would not be left to professionals or third-rate men. The truth is that the state has shrivelled up. It retains its old legal powers over the citizens, its old legal rights as against the central government. It still displays its peculiar patriotism at every public celebration, and recalls its historic heroes. In Virginia and Massachusetts, for instance, in Vermont and Kentucky, and again in such a great Western state as California, there is plenty of state pride. But it does not interest its citizens as it once did. Men do not now say, like Ames in 1782, that their state is their country.14 And as the central government overshadows it in one direction, so the great cities have encroached upon it in another. The population of a single city is sometimes a fourth or a fifth part of the whole population of the state; and city questions interest this population more than state questions do; city officials have begun to rival or even to dwarf state officials.

Observe, however, that while the growth of the Union has relatively dwarfed the state, the absolute increase of the state in population has changed the character of the state itself. In 1790 seven of the thirteen original states had each of them less than 300,000, only one more than 500,000 inhabitants. Now thirty-one have more than 1,000,000 each, twenty have more than 2,000,000, and ten of these have more than 2,500,000. Hence, in spite of railroads and telegraphs, the individual citizens know less of one another, have less personal acquaintance with their leading men, and less personal interest in the affairs of the community than in the old days when the state was no more populous than an English county like Bedford or Somerset. Thus the special advantages of local government have to a large extent vanished from the American states of today. They are local bodies in the sense of having no great imperial interests to fire men’s minds. They are not local in the sense of giving their members a familiar knowledge and a lively interest in the management of their affairs. Hamilton may have been right in thinking that the large states ought to be subdivided.15 At any rate it is to this want of direct local interest on the part of the people, that some of the faults of their legislatures may be ascribed.

The chief lesson which a study of the more vicious among the state legislatures teaches, is that power does not necessarily bring responsibility in its train. I should be ashamed to write down so bald a platitude, were it not that it is one of those platitudes which are constantly forgotten or ignored. People who know well enough that, in private life, wealth or rank or any other kind of power is as likely to mar a man as to make him, to lower as to raise his sense of duty, have nevertheless contracted the habit of talking as if human nature changed when it entered public life, as if the mere possession of public functions, whether of voting or of legislating, tended of itself to secure their proper exercise. We know that power does not purify men in despotic governments, but we talk as if it did so in free governments. Everyone would of course admit, if the point were put flatly to him, that power alone is not enough, but that there must be added to power, in the case of the voter, a direct interest in the choice of good men; in the case of the legislator, responsibility to the voters; in the case of both, a measure of enlightenment and honour. What the legislatures of the worst states show is not merely the need for the existence of a sound public opinion, for such a public opinion exists, but the need for methods by which it can be brought into efficient action upon representatives, who, if they are left to themselves, and are not individually persons with a sense of honour and a character to lose, will be at least as bad in public life as they could be in private. The greatness of the scale on which they act, and of the material interests they control, will do little to inspire them. New York and Pennsylvania are by far the largest and wealthiest states in the Union. Their legislatures are confessedly among the worst.

chapter 46

State Politics

In the last preceding chapters I have attempted to describe first the structure of the machinery of state governments, and then this machinery in motion as well as at rest, that is to say, the actual working of the various departments in their relations to one another. We may now ask, What is the motive power which sets and keeps these wheels and pistons going? Where is the steam that drives the machine?

The steam is supplied by the political parties. In speaking of the parties I must, to some slight extent, anticipate what will be more fully explained in Part III; but it seems worth while to incur this inconvenience for the sake of bringing together all that refers specifically to the states, and of completing the picture of their political life.1

The states evidently present some singular conditions for the development of a party system. They are self-governing communities with large legislative and administrative powers, existing inside a much greater community of which they are for many purposes independent. They must have parties, and this community, the federal Union, has also parties. What is the relation of the one set of parties to the other?

There are three kinds of relations possible, viz.:

• Each state might have a party of its own, entirely unconnected with the national parties, but created by state issues, i.e., advocating or opposing measures which fall within the exclusive competence of the state.
• Each state might have parties which, while based upon state issues, were influenced by the national parties, and in some sort of affiliation with the latter.
• The parties in each state might be merely local subdivisions of the national parties, the national issues and organizations swallowing up, or rather pushing aside, the state issues and the organizations formed to deal with them.

The nature of the state governments would lead us to expect to find the first of these relations existing. The sphere of the state is different, some few topics of concurrent jurisdiction excepted, from that of the national government. What the state can deal with, the national government cannot touch. What the national government can deal with lies beyond the province of the state.2 The state governor and legislature are elected without relation to the president and Congress, and when elected have nothing to do with those authorities. Hence a question fit to be debated and voted upon in Congress can seldom be a question fit to be also debated and voted upon in a state legislature, and the party formed for advocating its passage through Congress will have no scope for similar action within a state, while on the other hand a state party, seeking to carry some state law, will have no motive for approaching Congress, which can neither help it nor hurt it. The great questions which have divided the Union since its foundation, and on which national parties have been based, have been questions of foreign policy, of the creation of a national bank, of a protective tariff, of the extension of slavery, of the reconstruction of the South after the war. With none of these had a state legislature any title to deal; all lay within the federal sphere. So the questions of currency and tariff reform, which towards the close of the nineteenth century came to be among the most important questions before the country, were outside the province of the state governments. We might therefore expect that the state parties would be as distinct from the national parties as are the state governments from the federal.

The contrary has happened. The national parties have engulfed the state parties. The latter have disappeared absolutely as independent bodies, and survive merely as branches of the national parties, working each in its own state for the tenets and purposes which a national party professes and seeks to attain. So much is this the case that one may say that a state party has rarely (save to some extent in the South) any marked local colour, that it is seldom, and then but slightly, the result of a compromise between state issues and national issues, such as I have indicated in suggesting the second form of possible relation. The national issues have thrown matters of state competence entirely into the shade, and have done so almost from the foundation of the Republic. The local parties which existed in 1789 in most or all of the states were soon absorbed into the Federalists and Democratic Republicans who sprang into life after the adoption of the federal Constitution.

The results of this phenomenon have been so important that we may stop to examine its causes.

Within four years from their origin, the strife of the two great national parties became intense over the whole Union. From 1793 till 1815 grave issues of foreign policy, complicated with issues of domestic policy, stirred men to fierce passion and strenuous effort. State business, being more commonplace, exciting less feeling, awakening no interest outside state boundaries, fell into the background. The leaders who won fame and followers were national leaders; and a leader came to care for his influence within his state chiefly as a means of gaining strength in the wider national field. Even so restlessly active and versatile a people as the Americans cannot feel warmly about two sets of diverse interests at the same time, cannot create and work simultaneously two distinct and unconnected party organizations. The state, therefore, had, to use the transatlantic phrase, “to take the back seat.” Before 1815 the process was complete; the dividing lines between parties in every state were those drawn by national questions. And from 1827 down to the end of the century the renewed keenness of party warfare kept these parties constantly on the stretch, and forced them to use all the support they could win in a state for the purposes of the national struggle.

There was one way in which predominance in a state could be so directly used. The federal senators are chosen by the state legislatures. The party therefore which gains a majority in the state legislature gains two seats in the smaller and more powerful branch of Congress. As parties in Congress are generally pretty equally balanced, this advantage is well worth fighting for and is a constant spur to the efforts of national politicians to carry the state elections in a particular state. Besides, in America, above all countries, nothing succeeds like success; and in each state the party which carries the state elections is held likely to carry the elections for the national House of Representatives, and for the president also.

Moreover, there are the offices. The federal offices in each state are very numerous. They are in the gift of whichever national party happens to be in power, i.e., counts among its members the president for the time being. He bestows them upon those who in each state have worked hardest for the national party there. Thus the influence of Washington and its presiding deities is everywhere felt, and even the party which is in a minority in a particular state, and therefore loses its share of the state offices, may be cheered and fed by morsels of patronage from the national table. The national parties are in fact all-pervasive, and leave little room for the growth of any other groupings or organizations. A purely state party, indifferent to national issues, would, if it were started now, have no support from outside, would have few posts to bestow, because the state offices are neither numerous nor well paid, could have no pledge of permanence such as the vast mechanism of the national parties provides, would offer little prospect of aiding its leaders to win wealth or fame in the wider theatre of Congress.

Accordingly the national parties have complete possession of the field. In every state from Maine to Texas all state elections for the governorship and other offices are fought on their lines; all state legislatures are divided into members belonging to one or other of them. Every trial of strength in a state election is assumed to presage a similar result in a national election. Every state office is deemed as fitting a reward for services to the national party as for services in state contests. In fact the whole machinery is worked exactly as if the state were merely a subdivision of the Union for electoral purposes. Yet nearly all the questions which come before state legislatures have nothing whatever to do with the tenets of the national parties, while votes of state legislatures, except in respect of the choice of senators, can neither advance nor retard the progress of any cause which lies within the competence of Congress.

How has this system affected the working of the state governments, and especially of their legislatures?

It has prevented the growth within a state of state parties addressing themselves to the questions which belong to its legislature, and really affect its welfare.

The natural source of a party is a common belief, a common aim and purpose. For this men league themselves together, and agree to act in concert. A state party ought therefore to be formed out of persons who desire the state to do something, or not to do it; to pass such and such a law, to grant money to such and such an object. It is, however, formed with reference to no such aim or purpose, but to matters which the state cannot influence. Hence a singular unreality in the state parties. In the legislatures as well as through the electoral districts they cohere very closely. But this cohesion is of no service or significance for nine-tenths of the questions that come before the legislature for its decision, seeing that such questions are not touched by the platform of either party. Party, therefore, does not fulfil its legitimate ends. It does not produce the cooperation of leaders in preparing, of followers in supporting, a measure or line of policy. It does not secure the keen criticism by either side of the measures or policy advocated by the other. It is an artificial aggregation of persons linked together for purposes unconnected with the work they have to do.

This state of things may seem to possess the advantage of permitting questions to be considered on their merits, apart from that spirit of faction which in England, for instance, disposes the men on one side to reject a proposal of the other side on the score, not of its demerits, but of the quarter it proceeds from. Such an advantage would certainly exist if members were elected to the state legislatures irrespective of party, if the practice was to look out for good men who would manage state business prudently and pass useful laws. This, however, is not the practice. The strength of the national parties prevents it. Every member is elected as a party man; and the experiment of legislatures working without parties has as little chance of being tried in the several states as in Congress itself. There is yet another benefit which the plan seems to promise. The state legislatures may seem a narrow sphere for an enterprising genius, and their work uninteresting to a superior mind. But if they lead into the larger field of national politics, if distinction in them opens the door to a fame and power extending over the country, able men will seek to enter and to shine in the legislatures of the states. This is the same argument as is used by those who defend the practice, now general in England, of fighting municipal and other local elections on party lines. Better men, it is said, are glad to enter the town councils than could otherwise be induced to do so, because in doing so they serve the party, and establish a claim on it; they commend themselves to their fellow citizens as fit candidates for Parliament. The possible loss of not getting a good set of town councillors irrespective of party lines is thought to be more than compensated by the certain gain of men whose ambition would overlook a town council, were it not thus made a stage in their political career. This case is the more like that of America because these English municipal bodies have rarely anything to do with the issues which divide the two great English parties. Men are elected to them as Tories or Liberals whose Toryism or Liberalism is utterly indifferent so far as the business of the council goes.

Whether or no this reasoning be sound as regards England, I doubt if the American legislatures gain in efficiency by having only party men in them, and whether the elections would be any worse cared for if party was a secondary idea in the voters’ minds. Already these elections are entirely in the hands of party managers, to whom intellect and knowledge do not commend an aspirant, any more than does character. Experience in a state legislature certainly gives a politician good chances of seeing behind the scenes, and makes him familiar with the methods employed by professionals. But it affords few opportunities for distinction in the higher walks of public life, and it is as likely to lower as to raise his aptitude for them. However, a good many men find their way into Congress through the state legislatures—though it is no longer the rule that persons chosen federal senators by those bodies must have served in them—and perhaps the average capacity of members is kept up by the presence of persons who seek to use the state legislature as a stepping-stone to something further. The question is purely speculative. Party has dominated and will dominate all state elections. Under existing conditions the thing cannot be otherwise.

It is, however, obviously impossible to treat as party matters many of the questions that come before the legislatures. Local and personal bills, which, it will be remembered, occupy by far the larger part of the time and labours of these bodies, do not fall within party lines at all. The only difference the party system makes to them is that a party leader who takes up such a bill has exceptional facilities for putting it through, and that a district which returns a member belonging to the majority has some advantage when trying to secure a benefit for itself. It is the same with appropriations of state funds to any local purpose. Members use their party influence and party affiliations; but the advocacy of such schemes and opposition to them have comparatively little to do with party divisions, and it constantly happens that men of both parties are found combining to carry some project by which they or their constituents will gain. Of course the less reputable a member is, the more apt will he be to enter into “rings” which have nothing to do with politics in their proper sense, the more ready to scheme with any trickster, to whichever party he adheres. Of measures belonging to what may be called genuine legislation, i.e., measures for improving the general law and administration of the state, some are so remote from any party issue, and so unlikely to enure to the credit of either party, that they are considered on their merits. A bill, for instance, for improving the state lunatic asylums, or forbidding lotteries, or restricting the freedom of divorce, would have nothing either to hope or to fear from party action. It would be introduced by some member who desired reform for its own sake, and would be passed if this member, having convinced the more enlightened among his colleagues that it would do good, or his colleagues generally that the people wished it, could overcome the difficulties which the pressure of a crowd of competing bills is sure to place in its way. Other public measures, however, may excite popular feeling, may be demanded by one class or section of opinion and resisted by another. Bills dealing with the sale of intoxicants, or regulating the hours of labour, or attacking railway companies, or prohibiting the sale of oleomargarine as butter, are matters of such keen interest to some one section of the population, that a party will gain support from many citizens by espousing them, and may possibly estrange others. Hence, though such bills have rarely any connection with the tenets of either party, it is worth the while of a party to win votes by throwing its weight for or against them, according as it judges that there is more to gain by taking the one course or the other. In the case of oleomargarine, for instance, there was clearly more to be gained by supporting than by opposing, because the farmers, especially in the agricultural Northwest, constitute a much stronger vote than any persons who could suffer by restricting the sale of the substance. We should accordingly expect to find, and observers did in fact find, both parties competing for the honour of passing such a bill. There was a race between a number of members, anxious to gain credit for themselves and their friends. Intoxicants open up a more difficult problem. Strong as the Prohibitionists and local option men are in all the Northern and Western, and, recently, in the Southern states also, the Germans, not to speak of the Irish and the liquor dealers, are in many states also so strong, and so fond of their beer, that it is a hazardous thing for a party to hoist the anti-liquor flag. Accordingly both parties are apt to fence with this question. Speaking broadly, therefore, these questions of general state legislation are not party questions, though liable at any moment to become so, if one or other party takes them up.

Is there then no such thing as a real state party, agitating or working solely within state limits, and inscribing on its banner a principle or project which state legislation can advance?

Such a party does sometimes arise. In California, for instance, there has long been a strong feeling against the Chinese, and a desire to exclude them. Both Republicans and Democrats were affected by the feeling, and fell in with it. But there sprang up a little later a third party, which claimed to be specially “anti-Mongolian,” while also attacking capitalists and railways; and it lasted for some time, confusing the politics of the state. Questions affecting the canals of the state became at one time a powerful factor in the parties of New York. In Virginia the question of repudiating the state debt gave birth some time after the Civil War to a party which called itself the “Readjusters,” and by the help of Negro votes carried the state at several elections. In some of the Northwestern states the farmers associated themselves in societies called “Granges,” purporting to be formed for the promotion of agriculture, and created a Granger party, which secured drastic legislation against the railroad companies and other so-called monopolists. The same forces acting over a still wider area produced more recently the so-called Farmers’ Alliance, which figured so prominently in the congressional elections of 1890, and under the name of the People’s Party, in those of 1892. And in most states there now exists an active Prohibitionist party, which agitates for the strengthening and better enforcement of laws restricting or forbidding the sale of intoxicants. It deems itself also a national party, since it has an organization which covers a great part of the Union. But its operations are far more active in the states, because the liquor traffic belongs to state legislation, although the victories recently won for the anti-liquor cause have not usually been won by its own direct party action, but by the acceptance of the doctrine by one other of the regular parties.3 Since, however, it can rarely secure many members in a state legislature, it acts chiefly by influencing the existing parties, and frightening them into pretending to meet its wishes.

All these groups or factions were or are associated on the basis of some doctrine or practical proposal which they put forward. But it sometimes also happens that, without any such basis, a party is formed in a state inside one of the regular national parties; or, in other words, that the national party in the state splits up into two factions, probably more embittered against each other than against the other regular party. Such state factions, for they hardly deserve to be called parties, generally arise from, or soon become coloured by, the rivalries of leaders, each of whom draws a certain number of politicians with him. New York is the state that has seen most of them; and in it they have tended of late years to grow more distinctly personal. The Hunkers and Barnburners who divided the Democratic party many years ago, and subsequently passed into the “Hards” and the “Softs,” began in genuine differences of opinion about canal management and other state questions.4 The “Stalwart” and “Half-breed” sections of the Republican party in the same state, whose bitter feuds amused the country a few years ago, were mere factions, each attached to a leader, or group of leaders, but without distinctive principles. Still more purely personal were the factions of “Regular” and “Union” Republicans in Delaware, due to the efforts of a single politician to secure a seat in the United States Senate.

It will be seen from this fact, as well as from others given in the preceding chapter, that the dignity and magnitude of state politics have declined. They have become more pacific in methods, but less serious and more personal in their aims. In old days the state had real political struggles, in which men sometimes took up arms. There was a rebellion in Massachusetts in 1786–87, which it needed some smart fighting to put down, and another in Rhode Island in 1842, due to the discontent of the masses with the then existing constitution.5 The battles of later generations have been fought at the polling booths, though sometimes won in the rooms where the votes are counted by partisan officials. That heads are counted instead of being broken is no doubt an improvement. But these struggles do not always stir the blood of the people as those of the old time did: they seem to evoke less patriotic interest in the state, less public spirit for securing her good government.

This change does not necessarily indicate a feebler sense of political duty. It is due to that shrivelling up of the state to which I referred in the last chapter. A century ago the state was a commonwealth comparable to an Italian republic like Bologna or Siena, or one of the German free imperial cities of the Middle Ages, to Lübeck, for instance, or to Nürnberg, which, though it formed part of the Empire, had a genuine and vigorous political life of its own, in which the faiths, hopes, passions of the citizens were involved. Nowadays the facilities of communication, the movements of trade, the unprecedented diffusion of literature, and, perhaps not least, the dominance of the great national parties, whose full tide swells all the creeks and inlets of a state no less than the mid channel of national politics at Washington, have drawn the minds of the masses as well as of the more enlightened citizens away from the state legislatures, whose functions have come to seem trivial and their strifes petty.6

In saying this I do not mean to withdraw or modify what was said, in an earlier chapter, of the greatness of an American state, and the attachment of its inhabitants to it. Those propositions are, I believe, true of a state as compared to any local division of any European country, the cantons of Switzerland excepted. I am here speaking of a state as compared with the nation, and of men’s feelings towards their state today as compared with the feelings of a century ago. I am, moreover, speaking not so much of sentimental loyalty to the state, considered as a whole, for this is still strong, but of the practical interest taken in its government. Even in Great Britain many a man is proud of his city, of Edinburgh say, or of Manchester, who takes only the slenderest interest in the management of its current business.

There is indeed some resemblance between the attitude of the inhabitants of a great English town towards their municipal government and that of the people of a state to their state government. The proceedings of English town councils are little followed or regarded either by the wealthier or the poorer residents. The humble voter does not know or care who is mayor. The head of a great mercantile house never thinks of offering himself for such a post. In London the Metropolitan Board of Works raised and spent a vast revenue; but its discussions were seldom commented on in the newspapers and very few persons of good social standing were to be found among it members. Even the London County Council attracts less attention than the magnitude of its operations deserves. Allowing for the contrast between the English bodies, with their strictly limited powers, and the immense competence of an American state legislature, this English phenomenon is sufficiently like those of America to be worth taking as an illustration.

We may accordingly say that the average American voter, belonging to the labouring or farming or shopkeeping class, troubles himself little about the conduct of state business. He votes the party ticket at elections as a good party man, and is pleased when his party wins. When a question comes up which interests him, like that of canal management, or the regulation of railway rates, or a limitation of the hours of labour, he is eager to use his vote, and watches what passes in the legislature. He is sometimes excited over a contest for the governorship, and if the candidate of the other party is a stronger and more honest man, may possibly desert his party on that one issue. But in ordinary times he follows the proceedings of the legislature so little that an American humourist, describing the initial stages of dotage, observes that the poor old man took to filing the reports of the debates in his state legislature. The politics which the voter reads by preference are national politics; and especially whatever touches the next presidential election. In state contests that which chiefly fixes his attention is the influence of a state victory on an approaching national contest.

The more educated and thoughtful citizen, especially in great states, like New York and Pennsylvania, is apt to be disgusted by the sordidness of many state politicians and the pettiness of most. He regards Albany and Harrisburg much as he regards a wasps’ nest in one of the trees of his suburban garden. The insects eat his fruit, and may sting his children; but it is too much trouble to set up a ladder and try to reach them. Some public-spirited young men have, however, occasionally thrown themselves into the muddy whirlpool of the New York legislature, chiefly for the sake of carrying acts for the better government of cities. When the tenacity of such men proves equal to their courage, they gain in time the active support of those who have hitherto stood aloof, regarding state politics as a squabble over offices and jobs. With the help of the press they were able to carry measures such as an improved Ballot Act, or Civil Service Act, or an act for checking expenditure at elections, reforms not only valuable in their own state but setting an example which other states are apt to follow. But the prevalence of the rule that a man can be elected only in the district where he lives, renders it difficult permanently to maintain a reforming party in a legislature, so those who, instead of shrugging their shoulders, put them to the wheel, generally prefer to carry their energies into the field of national politics, thinking that larger and swifter results are to be obtained there, because victories achieved in and through the national government have an immediate moral influence upon the country at large.

A European observer, sympathetic with the aims of the reformers, is inclined to think that the battle for honest government ought to be fought everywhere, in state legislatures and city councils as well as in the national elections and in the press, and is at first surprised that so much effort should be needed to secure what all good citizens, to whichever party they belong, might be expected to work for. But he would be indeed a self-confident European who should fancy he had discovered anything which had not already occurred to his shrewd American friends; and the longer such an observer studies the problem, the better does he learn to appreciate the difficulties which the system of party organization, which I must presently proceed to describe, throws in the way of all reforming efforts.

Note to the Edition of 1910

RECENT TENDENCIES IN STATE POLITICS

Upon a review of the last twenty years, I am led to believe that state legislatures, which had in most parts of the country lost some of the respect formerly entertained for them, have not declined any further in intellectual quality, and are on the whole less open to moral censure than they were in 1888. In some states, especially in the West, they are believed to have improved. Nevertheless the disposition of the people to distrust them continues. This appears not only in the restriction of their powers and the shortening of their sessions but also in two other noteworthy forms.

One is the tendency to turn from the legislature to the governor and encourage him to take the initiative and assert himself as a motive power leading the legislature and appealing directly to the people for their support. The difficulty of fixing responsibility upon large representative bodies seems both in states and in cities to be inducing the people to invest the executive head of the state or city with a discretion wider than would have formerly been allowed to him or than is allowed to executive officials in Great Britain. This is now visible not so much in the widening of his legal functions (although his power of appointing to posts has been in some states extended), as in the kind of authority which the governor is able, when personally capable, firm and upright, to exert.

The other form is the introduction of those highly democratic institutions, the referendum and the initiative. These, though as yet established in only a few of the Western states, give evidence of the desire which is spreading in the West for the people to take power out of the hands of the legislature and wield it themselves. The source of this desire probably lies not so much in the eagerness of the masses to carry further the principle of popular sovereignty, as in a certain impatience with the representative assemblies, which are supposed to be too largely the creatures of the party organizations and to be liable to yield to the influences which powerful financial interests can bring to bear. Such impatience is not always justified, for the masses sometimes expect from legislation benefits which no legislation can give and blame their representatives when the fault lies not in the latter but in the nature of things. But the people will in trying to do themselves the work they desire to have done doubtless come to learn in time how much harder that work is than they had believed, and how much more skill it needs than either they or their legislators have yet acquired.

chapter 47

The Territories

The national government has ever since its establishment possessed a vast area of land outside the limits of the several states, the larger part of which long remained wild, inhabited only by Indian tribes. When, with the westward advance of the whites, any particular region became sufficiently settled to require a regular government and be capable of some form of self-government, its boundaries were set, and it was erected into what is called a Territory. Most of the states admitted subsequently to the original thirteen were for a time Territories, and became states when they reached a certain population. The process went on till all the continental area of the United States was thus, after passing through the Territorial stage, distributed into states, and there now remains in that area only one region still called a Territory. This is Alaska. Outside the continent there is another Territory, viz., the Hawaiian Islands, of which I shall speak in a later chapter. Besides these two regions there is one part of the country which is not a state and has no self-governing institutions. The District of Columbia is a piece of land set apart to contain the city of Washington, which is the seat of the federal government. It is governed by three commissioners appointed by the president, and has no local legislature nor municipal government, the only legislative authority being Congress, in which it is not represented. Being well administered, it is held up by unfriendly critics of democracy as a model of the happy results of an enlightened despotism.

Alaska (area 590,884 square miles, population in 1910, 64,356, of whom half were Indians1 ) was under the direct authority of officers appointed by the president and of laws passed by Congress, until 1912, when Congress provided for a local legislature. Its population has grown with the discovery of valuable minerals, but it is hardly likely for a long time to come to receive complete self-governing institutions.

Although the Territorial form of government has now ceased on the North American continent, it seems to deserve some description, not only because it still exists in Hawaii, and may possibly be applied elsewhere in the dominions of the United States, but also because it was so long in force over a vast area that some knowledge of it is needed to understand the phases through which the country passed.

Until 1889, the Organized Territories, eight in number, formed a broad belt extending from Canada on the north to Mexico on the south, and separating the states of the Mississippi Valley from those of the Pacific slope. In that year Congress passed acts under which three of them, Dakota (which divided itself into North Dakota and South Dakota), Montana, and Washington became entitled to be admitted as states; while in 1890 two others (Idaho and Wyoming) were similarly permitted to become states. Then the Territory of Utah was admitted and became a state (1894). Finally in 1910 an act was passed providing for the admission of Arizona and New Mexico so soon as they should give themselves proper constitutions. The Territory of Oklahoma and the region called Indian Territory, united to form the state of Oklahoma, were admitted in 1907. The Territorial form of government had some interesting features, for it differed from that which exists in the several states, and was in some points more akin to that of the self-governing colonies of Great Britain. This form was in each Territory created by federal statutes, beginning with the great Ordinance for the Government of the Territory of the United States northwest of the River Ohio, passed by the Congress of the Confederation in 1787. Since that year different statutes, not always similar in their provisions, were enacted for creating particular Territories, under the general power conferred upon Congress by the federal Constitution (art. IV, § 3).

The fundamental law of every Territory, as of every state, is the federal Constitution; but whereas every state has also its own popularly enacted state constitution, the Territories are not regulated by any similar instruments, which for them are replaced by the federal statutes establishing their government and prescribing its form.

In a Territory, as in every state, the executive, legislative, and judicial departments were kept distinct. At first local legislative power was vested in the governor and the judges; it was afterwards conferred on an elective legislature. In the later form, the executive consisted of a governor appointed for four years by the president of the United States, with the consent of the Senate, and removable by the president, together with a secretary, treasurer, auditor, and usually also a superintendent of public instruction and a librarian. The governor commanded the militia, and had a veto upon the acts of the legislature, which, however, was (in most Territories) capable of being overriden by a two-thirds majority in each house. He was responsible to the federal government, and reported yearly to the president on the condition of the Territory, often making his report a sort of prospectus in which the advantages which his dominions offered to intending immigrants were fondly set forth. He also sent a message to the legislature at the beginning of each session. Important as was the post of governor, it was often bestowed as a mere piece of party patronage, with no great regard to the fitness of the appointee.

The Territorial legislature was composed of two houses, a council of twelve persons, and a house of representatives of twenty-four persons, elected by districts. The session was limited (by federal statutes) to sixty days, and the salary of a member fixed at $4 per day. The houses worked much like those in the states, doing the bulk of their business by standing committees, and frequently suspending their rules to run measures through with little or no debate. The electoral franchise was left to be fixed by Territorial statute, but federal statutes prescribed that every member should be resident in the district he represented. The sphere of legislation allowed to the legislature was wide, indeed practically as wide as that enjoyed by the legislature of a state, but subject to certain federal restrictions.2 It was subject also to the still more important right of Congress to annul or modify by its own statutes any Territorial act. In some Territories every act was directed to be submitted to Congress for its approval, and, if disapproved, to be of no effect; in others submission was not required. But in all Congress could exercise without stint its power to override the statutes passed by a Territorial legislature, as the British Parliament may override those of a self-governing colony. This power was not largely or often exercised. The most remarkable instance was furnished by Utah, where congressional legislation has had a hard fight in breaking down polygamy, finding it necessary even to impose a test oath upon voters.

The judiciary consisted of three or more judges of a supreme court, appointed for four years by the president, with the consent of the Senate, together with a U.S. district attorney and a U.S. marshal. The law administered was partly federal, all federal statutes being construed to take effect, where properly applicable, in the Territories, partly local, created in each Territory by its own statutes; and appeals, where the sum in dispute was above a certain value, went to the Supreme Federal Court. Although these courts were created by Congress in pursuance of its general sovereignty—they did not fall within the provisions of the Constitution for a federal judiciary—the Territorial legislature regulated their practice and procedure. The expenses of Territorial governments are borne by the federal treasury.

The Territories sent neither senators nor representatives to Congress, nor did they take part in presidential elections. The House of Representatives, under a statute, admitted a delegate from each of them to sit and speak, but of course not to vote, because the right of voting in Congress depends on the federal Constitution. The position of a citizen in a Territory therefore was, and is, a peculiar one.3 What may be called his private or passive citizenship is complete: he has all the immunities and benefits which any other American citizen enjoys. But the public or active side is wanting, so far as the national government is concerned, although complete for local purposes.4 He is in the position of an Australian subject of the British Crown, who has full British citizenship as respects private civil rights, and a share in the government of his own colony, but does not participate in the government of the British Empire at large, although personally eligible for any political office in the United Kingdom or any other part of the empire. It may seem inconsistent with principle that citizens should be taxed by a government in whose legislature they were not represented; but the practical objections to giving the full rights of states to these comparatively rude communities outweight any such theoretical difficulties. It must moreover be remembered that a Territory, which may be called an inchoate or rudimentary state, looks forward to becoming a complete state. When its population reached that of an average congressional district, its claim to be admitted as a state was strong, and in the absence of specific objections was granted. Congress, however, having absolute discretion in the matter, often used its discretion under the influence of partisan motives. Nevada was admitted to be a state when its population was only about 20,000, mainly for the sake of getting its vote for the Thirteenth Constitutional Amendment. After it rose to 62,266 it declined in 1890 to 45,000 but by 1910 had risen again to 81,875. Utah was long refused admission, because deemed, on account of the strength and peculiar institutions of the Mormon Church, not fit for that emancipation from the tutelage of Congress which its erection into a state would confer. When Congress resolved to turn a Territory into a state, it either (as happened in the cases of Idaho and Wyoming) passed an act accepting and ratifying a constitution already made for themselves by the people, and forthwith admitting the community as a state, or else passed what is called an Enabling Act, under which the inhabitants elected a constitutional convention, empowered to frame a draft constitution. When this constitution had been submitted to and accepted by the voters of the Territory, the act of Congress took effect; the Territory was transformed into a state, and proceeded to send its senators and representatives to Congress in the usual way. The enabling act might prescribe conditions to be fulfilled by the state constitution, but did not usually attempt to narrow the right to be enjoyed by the citizens of the newly-formed state of subsequently modifying that instrument in any way not inconsistent with the provisions of the federal Constitution. However, in the case of the Dakotas, Montana, Washington, Idaho, and Wyoming, the enabling act required the conventions to make “by ordinance irrevocable without the consent of the United States and the people of the said States” certain provisions, including one for perfect religious toleration and another for the maintenance of public schools free from sectarian control. This the six states did accordingly. But whether this requirement of the consent of Congress would be held binding if the people of the state should hereafter repeal the ordinance, quaere.

The arrangements above described worked well. Self-government was practically enjoyed by the Territories, despite the supreme authority of Congress, just as it is enjoyed by Canada, Australia, New Zealand, and South Africa despite the legal right of the British Parliament to legislate for every part of the king’s dominions. The want of a voice in Congress and presidential elections, and the fact that the governor was set over them by an external power, were not felt to be practical grievances, partly of course because these young communities were too small and too much absorbed in the work of developing the country to be keenly interested in national politics. Their local political life resembled that of the newer Western states. Both Democrats and Republicans had their regular party organizations, but the business of a Territorial legislature gave little opportunity for any real political controversies, though abundant opportunities for local jobbing.

Before we pass away from the Territories, it may be proper to say a few words regarding the character and probable future of those which have passed into states since 1889.

The largest, the most populous, and in every way the most advanced was Dakota (now the two states of North Dakota and South Dakota) which lies west of Minnesota, and south of the Canadian province of Manitoba. Its area is 147,700 square miles, greater than that of Prussia, and much greater than that of the United Kingdom (120,500 square miles). Its eastern and southern parts are becoming filled, though less rapidly now than was the case some years back, by an intelligent farming population, largely Scandinavian in blood. Possessing a vast area of undulating prairie land, well fitted for wheat crops, and at least the eastern part of which receives enough rain to make tillage easy without irrigation, the two Dakotas may be ultimately destined to stand among the wealthiest and most powerful commonwealths in the Union.

Montana has an enormus area (145,310 square miles), but much of it consists of bare mountains or thin and scarcely profitable forest. There are, however, so many rich valleys and such an abundance of ranching land, together with some fine woodland, not to speak of the valuable mines, that the still scanty population will soon be large in some districts. In others, however, it must long remain sparse. But here, as in the western parts of Dakota, the introduction of irrigation, and of the dry farming methods, promises to increase largely the area of cultivable soil.

Washington, situated on the shores of the Pacific between Oregon and British Columbia, had a stronger claim than Montana, and was fully fit for the rank of a self-governing state. That part of it which lies west of the Cascade Range has a moist and equable climate, resembling the climate of western England, though somewhat less variable. Many of the familiar genera and even species of British plants reappear on its hillsides. The forests are by far the finest which the United States possess, and will, though they are being sadly squandered, remain a source of wealth for a century or more to come. I have travelled through many miles of woodland where nearly every tree was over 250 feet high. The eastern half of the state, lying on the inland side of the mountains, is very much drier, and with greater extremes of heat and cold; but it is in parts extremely fertile. Washington, which had in 1870 a population of only 23,955, had, in 1890, 349,390 inhabitants, and in 1910, 1,141,990.

The states of Wyoming and Idaho, which lie to the south and southwest of Montana and are traversed by a number of lofty ranges belonging to the Rocky Mountain system, have comparatively little argicultural land, and even their wide pastoral tracts suffer somewhat from the dryness of the climate. There are, however, rich mineral deposits, especially in Idaho; there are in some places extensive forests, though of trees inferior in size to those of the Pacific coast. The population of these states will therefore continue to increase rapidly, especially when the fertile lands of Dakota have been filled up. But that population seemed likely to remain for some time to come less dense, and less stable in its character, than the Dakotan; so it was doubted whether their admission, which was mainly due to party political motives, was a prudent act at a time when Wyoming had only 60,589 inhabitants (census of 1890) and Idaho only 84,229.

Utah was, before the arrival of the Mormons in 1848, a desert, and indeed an arid desert, whose lower grounds were convered with that growth of alkaline plants which the Americans call sagebrush.5 The patient labour of the Saints, directed, at least during the pontificate of Brigham Young, by an able and vigilant autocracy, has transformed the tracts lying along the banks of streams into fertile grain, vegetable, and fruit farms. The water which descends from the mountains is turned over the level ground; the alkaline substances are soon washed out of the soil, and nothing more than irrigation is needed to produce excellent crops. After this process had advanced some way the discovery of rich silver mines drew in a swarm of Gentile colonists, and the non-Mormon population of some districts is now considerable. As Utah had, in 1890, 207,000 inhabitants, it would long before 1894 have been admitted as a state but for the desire of Congress to retain complete legislative control, and thereby to stamp out polygamy. That object seemed, however, at last likely to be attained, as at the latest Territorial election before 1894 the Gentiles proved to be in a majority. Although much of its surface is likely to remain barren and uninhabited, enough is fit for tillage and for dairy farming to give it a prospect of supporting a large settled population, and of late years many tracts have been rendered productive by irrigation.

Oklahoma (Indian: “beautiful lands”) was the name of the Territory which a statute of 1890 created out of the central and almost unoccupied parts of the Indian Territory, which lay west of Arkansas and south of Kansas. The rest of that Indian Territory was united with it to form the new state of Oklahoma admitted in 1907. It is a rolling prairie country, diversified by ranges of picturesque hills, the eastern and central parts of it fit for agriculture without irrigation, and producing cotton and tobacco as well as wheat and maize. The soil, though sandy in parts, is generally fertile. Besides coal, zinc, and other minerals, there are oil-bearing tracts of great value. The population, which in 1890 was 61,834, and had in 1910 reached 1,657,155,6 consists of recent immigrants, the northern counties having been occupied by men from Kansas, the southern by Texans and Arkansans, both of whom flooded it in a sudden wave, seeking to seize the land when it was thrown open to settlement. There are about 68,433 Indians, nearly all settled as landholding citizens, and each has a land allotment from the United States varying from forty acres to several thousand, according to value. The five civilized Indian nations (Cherokees, Creeks, Seminoles, Choctaws, and Chickasaws) have retained a certain measure of local organization and self-government, but they are also qualified voters. Most of them speak English, and most have settled down to agriculture or other industrial pursuits. All the Cherokees can read and write. There are also other Indian tribes, of whom the most numerous are the Osages. Of the 111,969 persons of colour some are descended from Negroes who before the Civil War were slaves of the Indians.

New Mexico, with an area larger than the United Kingdom (population in 1910, 327,301), is still largely peopled by Indo-Spanish Mexicans, who speak Spanish, and was, until 1910, deemed to be scarcely qualified for the self-government which organization as a state implies.7 Over a large part of the country water is still too scarce and the soil too hilly to make tillage possible. The same remark applies to Arizona, in the southern part of which the sides of the splendid mountain groups are barren, and the plains support only a scanty vegetation. There are however fine forests in the more northerly tracts, and in some places irrigation enables the soil to be cultivated. Both Territories are rich in minerals, but a mining population is not only apt to be disorderly, but is fluctuating, moving from camp to camp as richer deposits are discovered or old veins worked out. Ranching and mining are pursuits which do not draw in many permanent settlers. Still the time must come when the increase of population in the region immediately to the east of the Rocky Mountains will turn a fuller stream of immigration into these less promising regions, and bring under irrigation culture large tracts which are now not worth working. No one can yet say when that time will arrive. Many, including not a few of the more sober minded residents, thought that it was for the benefit of these two Territories themselves that they should remain content with that limited and qualified form of self-government which they had been enjoying. Congress has, however, thought otherwise; and now that statehood has been conferred upon them there remain no more Territories of the organized type on the American continent.

Europeans may ask why the theory of American democracy, which deems all citizens entitled to a voice in the national government, was not allowed to prevail at least so far as to give the inhabitants of the Territories the right of suffrage in congressional and presidential elections.

The question is a fair one. Were it possible under the federal Constitution to admit Territorial residents to active federal citizenship—i.e., to federal suffrage—admitted they would be. But the Union is a union of states. It knows no representatives in Congress, no electors for the presidency, except those chosen in states by state voters. The only means of granting federal suffrage to citizens in a Territory would be to turn the Territory into a state. To do this is to confer a power of self-government, guaranteed by the federal Constitution, for which the Territory may be still unfit, and therewith entitle this possibly small and rude community to send two senators to the federal Senate who have there as much weight as the two senators from New York with its nine millions of people. And a practical illustration of the evils to be feared has been afforded by the case of Nevada, a state whose inhabitants number only about 81,000, and which is really a group of mining camps, some of them already abandoned. Its population is obviously unworthy of the privilege of sending two men to the Senate, and did in fact allow itself to sink forthwith, for political purposes, into a sort of rotten borough which could be controlled or purchased by the leaders of a Silver Ring. It would evidently have been better to allow Nevada to remain in the condition of a Territory till a large settled and orderly community had occupied her surface, which is at present a parched and dismal desert, where the streams that descend from the eastern slope of the Sierra Nevada soon lose themselves in lakes or marshes.

On a review of the whole matter it may safely be said that the American scheme of Territorial government, though it suffered from the occasional incompetence of the governor, and is inconsistent with democratic theory, worked well in practice, and gave little ground for discontent to the inhabitants of the Territories themselves.

chapter 48

Local Government

This is the place for an account of local government in the United States, because it is a matter regulated not by federal law but by the several states and Territories, each of which establishes such local authorities, rural and urban, as the people of the state or Territory desire, and invests them with the requisite powers. But this very fact indicates the immensity of the subject. Each state has its own system of local areas and authorities, created and worked under its own laws; and though these systems agree in many points, they differ in so many others, that a whole volume would be needed to give even a summary view of their peculiarities. All I can here attempt is to distinguish the leading types of local government to be found in the United States, to describe the prominent features of each type, and to explain the influence which the large scope and popular character of local administration exercise upon the general life and well-being of the American people.

Three types of rural local government are discernible in America. The first is characterized by its unit, the town or township, and exists in the six New England states. The second is characterized by a much larger unit, the county, and prevails in the Southern states. The third combines some features of the first with some of the second, and may be called the mixed system. It is found, under a considerable variety of forms, in the middle and Northwestern states. The differences of these three types are interesting, not only because of the practical instruction they afford, but also because they spring from original differences in the character of the colonists who settled along the American coast, and in the conditions under which the communities there founded were developed.

The first New England settlers were Puritans in religion, and sometimes inclined to republicanism in politics. They were largely townsfolk, accustomed to municipal life and to vestry meetings. They planted their tiny communities along the seashore and the banks of rivers, enclosing them with stockades for protection against the warlike Indians. Each was obliged to be self-sufficing, because divided by rocks and woods from the others. Each had its common pasture on which the inhabitants turned out their cattle, and which officers were elected to manage. Each was a religious as well as a civil body politic, gathered round the church as its centre; and the equality which prevailed in the congregation prevailed also in civil affairs, the whole community meeting under a president or moderator to discuss affairs of common interest. Each such settlement was called a town, or township, and was in fact a miniature commonwealth, exercising a practical sovereignty over the property and persons of its members—for there was as yet no state, and the distant home government scarcely cared to interfere—but exercising it on thoroughly democratic principles. Its centre was a group of dwellings, often surrounded by a fence or wall, but it included a rural area of several square miles, over which farmhouses and clusters of houses began to spring up when the Indians retired. The name “town” covered the whole of this area, which was never too large for all the inhabitants to come together to a central place of meeting. This town organization remained strong and close, the colonists being men of narrow means, and held together in each settlement by the needs of defence. And though presently the towns became aggregated into counties, and the legislature and governor, first of the whole colony, and, after 1776, of the state, began to exert their superior authority, the towns (which, be it remembered, remained rural communities, making up the whole area of the state) held their ground, and are to this day the true units of politial life in New England, the solid foundation of that well-compacted structure of self-government which European philosophers have admired and the new states of the West have sought to reproduce. Till 18211 the towns were the only political corporate bodies in Massachusetts, and till 1857 they formed, as they still form in Connecticut, the basis of representation in her Assembly, each town, however small, returning at least one member. Not a little of that robust, if somewhat narrow, localism which characterizes the representative system of America is due to this originally distinct and self-sufficing corporate life of the seventeenth-century towns. Nor is it without interest to observe that although they owed much to the conditions which surrounded the early colonists, forcing them to develop a civic patriotism resembling that of the republics of ancient Greece and Italy, they owed something also to those Teutonic traditions of semi-independent local communities, owning common property, and governing themselves by a primary assembly of all free inhabitants, which the English had brought with them from the Elbe and the Weser, and which, though already decaying, had been perpetuated in the practice of many parts of England, down till the days of the Stuart kings.

Very different were the circumstances of the Southern colonies. The men who went to Virginia and the Carolinas were not Puritans, nor did they mostly go in families and groups of families from the same neighbourhood. Many were casual adventurers, often belonging to the upper class, Episcopalians in religion, and with no such experience of, or attachment to, local self-government as the men of Massachusetts or Connecticut. They settled in a region where the Indian tribes were comparatively peaceable, and where therefore there was little need of concentration for the purposes of defence. The climate along the coast was somewhat too hot for European labour, so slaves were imported to cultivate the land. Population was thinly scattered; estates were large; the soil was fertile and soon enriched its owners. Thus a semi-feudal society grew up, in which authority naturally fell to the landowners, each of whom was the centre of a group of free dependants as well as the master of an increasing crowd of slaves. There were, therefore, comparatively few urban communities, and the life of the colony took a rural type. The houses of the planters lay miles apart from one another; and when local divisions had to be created, these were made large enough to include a considerable area of territory and number of landowning gentlemen. They were therefore rural divisions, counties framed on the model of English counties. Smaller circumscriptions there were, such as hundreds and parishes, but the hundred died out,2 the parish ultimately became a purely ecclesiastical division, and the parish vestry was restricted to ecclesiastical functions, while the county remained the practically important unit of local administration, the unit to which the various functions of government were aggregated, and which, itself controlling minor authorities, was controlled by the state government alone. The affairs of the county were usually managed by a board of elective commissioners, and not, like those of the New England towns, by a primary assembly; and in an aristocratic society the leading planters had of course a predominating influence. Hence this form of local government was not only less democratic, but less stimulating and educative than that which prevailed in the New England states. Nor was the Virginian county, though so much larger than the New England town, ever as important an organism over against the state. It may almost be said, that while a New England state is a combination of towns, a Southern state is from the first an administrative as well as political whole, whose subdivisions, the counties, had never any truly independent life, but were and are mere subdivisions for the convenient dispatch of judicial and financial business.

In the Middle states of the Union, Pennsylvania, New Jersey, and New York, settled or conquered by Englishmen sometime later than New England, the town and town meeting did not as a rule exist, and the county was the original basis of organization. But as there grew up no planting aristocracy like that of Virginia or the Carolinas, the course of events took in the Middle states a different direction. As trade and manufactures grew, population became denser than in the South. New England influenced them, and influenced still more the newer commonwealths which arose in the Northwest, such as Ohio and Michigan, into which the surplus population of the East poured. And the result of this influence is seen in the growth through the Middle and Western states of a mixed system, which presents a sort of compromise between the county system of the South and the town system of the Northeast. There are great differences between the arrangements in one or other of these Middle and Western states. But it may be said, speaking generally, that in them the county is relatively less important than in the Southern states, the township less important than in New England. The county is perhaps to be regarded, at least in New York, Pennsylvania, and Ohio, as the true unit, and the townships (for so they are usually called) as its subdivisions. But the townships are vigorous organisms, which largely restrict the functions of the county authority, and give to local government, especially in the Northwest, a character generally similar to that which it wears in New England.

So much for the history of the subject; a history far more interesting in its details than will be supposed from the rough sketch to which limits of space restrict me. Let us now look at the actual constitution and working of the organs of local government in the three several regions mentioned, beginning with New England and the town system.3 I will first set forth the dry but necessary outline, reserving comments for the following chapter.

The town is in rural districts the smallest local circumscription. English readers must be reminded that it is a rural, not an urban community, and that the largest group of houses it contains may be only what would be called in England a hamlet or small village. Its area seldom exceeds five square miles; its population is usually small, averaging less than 3,000, but occasionally ranges up to 13,000 and sometimes falls below 200.4 It is governed by an assembly of all qualified voters resident within its limits, which meets at least once a year, in the spring (a reminiscence of the Easter vestry of England), and from time to time as summoned. There are usually three or four meetings each year. Notice is required to be given at least ten days previously, not only of the hour and place of meeting, but of the business to be brought forward. This assembly has, like the Roman Comitia and the Landesgemeinde in three of the older Swiss Cantons, the power both of electing officials and of legislating. It chooses the selectmen, school committee, and executive officers for the coming year; it enacts bye-laws and ordinances for the regulation of all local affairs; it receives the reports of the selectmen and the several committees, passes their accounts, hears what sums they propose to raise for the expenses of next year, and votes the necessary taxation accordingly, appropriating to the various local purposes—schools, aid to the poor, the repair of highways, and so forth—the sums directed to be levied. Its powers cover the management of the town lands and other property, and all local matters whatsoever, including police and sanitation. Every resident has the right to make, and to support by speech, any proposal. The meeting, which is presided over by a chairman called the moderator—a name recalling the ecclesiastical assemblies of the English Commonwealth5 —is held in the town hall, if the town possesses one, or in the principal church or schoolhouse, but sometimes in the open air. The attendance is usually good; the debates sensible and practical. Much of course depends on the character and size of the population. Where it is of native American stock, and the number of voting citizens is not too great for thorough and calm discussion, no better school of politics can be imagined, nor any method of managing local affairs more certain to prevent jobbery and waste, to stimulate vigilance and breed contentment.6 When, however, the town meeting has grown to exceed seven or eight hundred persons, where the element of farmers has been replaced by that of factory operatives, and still more when any considerable section are strangers, such as the Irish or French Canadians who have latterly poured into New England, the institution no longer works well, because the multitude is too large for debate, factions are likely to spring up, and the new immigrants, untrained in self-government, become the prey of wire-pullers or petty demagogues. The social conditions of today in New England are less favorable than those which gave birth to it; and there are now in the populous manufacturing states of Massachusetts, Rhode Island, and Connecticut comparatively few purely rural towns, such as those which suggested the famous eulogium of Jefferson, who eighty years ago desired to see the system transplanted to his own Virginia:

“Those wards called townships in New England are the vital principle of their governments, and have proved themselves the wisest invention ever devised by the wit of man for the perfect exercise of self-government, and for its preservation. . . . As Cato then concluded every speech with the words ‘ Carthago delenda est,’ so do I every opinion with the injunction ‘Divide the counties into wards.’ ”

The executive of a town consists of the selectmen, from three to nine in number, usually either three, five, or seven. They are elected annually, and manage all the ordinary business, of course under the directions given them by the last preceding meeting. There is also a town clerk, who keeps the records, and minutes the proceedings of the meeting, and is generally also registrar of births and deaths; a treasurer; assessors, who make a valuation of property within the town for the purposes of taxation; the collector, who gathers the taxes, and diverse minor officers, such as hogreeves7 (now usually called field drivers), cemetery trustees, library trustees, and so forth, according to local needs. There is always a school committee, with sometimes subcommittees for minor school districts if the town be a large one. Some of these officers and committees are paid (the selectmen usually), some unpaid, though allowed to charge their expenses actually incurred in town work; and there has generally been no difficulty in getting respectable and competent men to undertake the duties. Town elections are not professedly political, i.e., they are not usually fought on party lines, though occasionally party spirit affects them, and a man prominent in his party is more likely to obtain support.8

Next above the town stands the county. Its area and population vary a good deal. Massachusetts with an area of 8,040 square miles has fourteen counties; Rhode Island with 1,053 square miles has five; the more thinly peopled Maine, with 29,985 square miles, has sixteen, giving an average of about 1,100 square miles to each county on these three states, though in Rhode Island the average is only 211 square miles. The populations of the counties run from 3,000 upwards; the average population being, where there are no large cities, from 30,000 to 50,000.9 The county was originally an aggregation of towns for judicial purposes, and is still in the main a judicial district in and for which civil and criminal courts are held, some by county judges, some by state judges, and in and for which certain judicial officers are elected by the people at the polls, who also choose a sheriff and a clerk. Police belong to the towns and cities, not to the county within which they lie. The chief administrative officers are the county commissioners, of whom there are three in Massachusetts (elected for three years, one in each year), and county treasurer.10 They are salaried officers, and have the management of county buildings, such as courthouses and prisons, with power to lay out new highways from town to town, to grant licences, estimate the amount of taxation needed to defray county charges,11 and apportion the county tax among the towns and cities by whom it is to be levied. But except in this last-mentioned respect the county authority has no power over the towns, and it will be perceived that while the county commissioners are controlled by the legislature, being limited by statute to certain well-defined administrative functions, there exists nothing in the nature of a county board or other assembly with legislative functions. The functions of the county are in fact of small consequence: it is a judicial district and a highway district and little more.

This New England system resembles that of Old England as the latter stood during the centuries that elapsed between the practical disappearance of the old county court or shire moot and the creation by comparatively recent statutes of such intermediate bodies and authorities as poor-law unions, highway districts and boards, local sanitary authorities. If we compare the New England scheme with that of the England of today, we are struck not only by the greater simplicity of the former, but also by the fact that it is the smaller organisms, the towns, that are most powerful and most highly vitalized. Nearly everything belongs to them, only those duties devolving on the counties which a small organism obviously cannot undertake. The system of self-governing towns no doubt works under the supervision of a body, the state legislature, which can give far closer attention to local affairs than the English Parliament can give to English local business. But in point of fact the state legislature interferes but little (less, I think, than the Local Government Board interferes in England) with the conduct of rural local business, though often required to deal with the applications which towns make to be divided or have their boundaries altered, and which are frequently resisted by a part of the inhabitants.

The town meeting system has, in the opinion of American publicists, begun to decline in New England. Many of the rural areas have become too populous for it, and the new immigrants that have flocked in—French-speaking Canadians, Irish, and people from Central or Southern Europe—are less fit to work such a system than were the pure English stock of a century ago.

The system which prevails in the Southern states need not long detain us, for it is less instructive and has proved less successful. Here the unit is the county, except in Louisiana, where the equivalent division is called a parish. The county was originally a judicial division, established for the purposes of local courts, and a financial one, for the collection of state taxes. It has now, however, generally received some other functions, such as the superintendence of public schools, the care of the poor, and the management of roads. In the South counties are larger than in New England, but not more populous, for the country is thinly peopled.12 The county officers, whose titles and powers vary somewhat in different states, are usually the board or court of county commissioners, an assessor (who prepares the valuation), a collector (who gathers the taxes13 ), a treasurer, a superintendent of education, an overseer of roads—all of course salaried, and now, as a rule, elected by the people, mostly for one or two years.14 These county officers have, besides the functions indicated by their names, the charge of the police and the poor, and of the construction of public works, such as bridges and prisons. The county judges and the sheriff, and frequently the coroner, are also chosen by the people. The sheriff is everywhere in America neither an ornamental person, as he has become in England, nor a judge, with certain executive functions, as in Scotland, but the chief executive officer of the judicial machinery of the county.

In these Southern states there exist various local divisions smaller than the counties.15 Their names and their attributions vary from state to state, but they have no legislative authority like that of the town meeting of New England, and their officers have very limited powers, being for most purposes controlled by the county authorities. The most important local body is the school committee for each school district. In several states, such as Virginia and North Carolina, we now find townships, and the present tendency seems in these states to be towards the development of something resembling the New England town. It is a tendency which grows with the growth of population, with the progress of manufactures and of the middle and industrious working class occupied therein, and especially with the increased desire for education. The school, someone truly says, is becoming the nucleus of local self-government in the South now, as the church was in New England two centuries ago.16 Nowhere, however, has there appeared either a primary assembly; while the representative local assembly is still in its infancy. Local authorities in the South, and in the states which, like Nevada and Oregon, may be said to have adopted the county system, are generally executive officers and nothing more.

The third type is less easy to characterize than either of the two preceding, and the forms under which it appears in the Middle and Northwestern states are even more various than those referable to the second type. Two features mark it. One is the importance and power of the county, which in the history of most of these states appears before any smaller division; the other is the activity of the township,17 which has more independence and a larger range of competence than under the system of the South. Now of these two features the former is the more conspicuous in one group of states—Pennsylvania, New Jersey, New York, Ohio, Indiana, Iowa; the latter in another group—Michigan, Illinois, Wisconsin, Minnesota, the two Dakotas, the reason being that the New Englanders, who were often the largest and always the most intelligent and energetic element among the settlers in the more northern of these two state groups, carried with them their attachment to the town system and their sense of its value, and succeeded, though sometimes not without a struggle, in establishing it in the six great and prosperous commonwealths which form that group. On the other hand, while Pennsylvania, New Jersey, and New York had not (from the causes already stated) started with the town system, they never adopted it completely; while in Ohio and Indiana the influx of settlers from the slave states, as well as from New York and Pennsylvania, gave to the county an early preponderance, which it has since retained. The conflict of the New England element with the Southern element is best seen in Illinois, the northern half of which state was settled by men of New England blood, the southern half by pioneers from Kentucky and Tennessee. The latter, coming first, established the county system, but the New Englanders fought against it, and in the constitutional convention of 1848 carried a provision, embodied in the constitution of that year, and repeated in the present constitution of 1870, whereby any county may adopt a system of townshp organization “whenever the majority of the legal voters of the county voting at any general election shall so determine.” 18 Under this power four-fifths of the 102 counties have now adopted the township system.19

Illinois furnishes so good a sample of that system in its newer form that I cannot do better than extract, from a clear and trustworthy writer, the following account of the whole scheme of local self-government in that state, which is fairly typical of the Northwest:

A similar picture of the town meeting in Michigan is given by another recent authority:

The conspicuous feature of this system is the reappearance of the New England town meeting, though in a somewhat less primitive and at the same time less perfect form, because the township of the West is a more artificial organism than the rural town of Massachusetts or Rhode Island, where, until after the middle of the nineteenth century, nearly everybody was of English blood, everybody knew everybody else, everybody was educated, not only in book learning, but in the traditions of self-government. However, such as it is, the Illinois and Michigan system had spread and seems likely to spread further. It exists in Wisconsin and Minnesota. Recent legislation permits its adoption in California, Nebraska, and in the two Dakotas, though in the western parts of these two last-named states few townships have been as yet established.25

A high authority writes to me:

“Attendance and interest in the town-meetings of the Northwest are much below those in the New England towns.26 The importance of township government in these States is also diminished by the separate organization of villages and small cities and by the greater development of county functions.”

In the proportion to the extent in which a state has adopted the township system the county has tended to decline in importance. It is nevertheless of more consequence in the West than in New England. It has frequently an educational official who inspects the schools, and it raises a tax for aiding schools in the poorer townships. It has duties, which are naturally more important in a new than in an old state, of laying out main roads and erecting bridges and other public works. And sometimes it has the oversight of township expenditure.27 The board of county commissioners consists in Michigan and Illinois of the supervisors of all the townships within the county; in Wisconsin and Minnesota the commissioners are directly chosen at a county election.

In Michigan, in most counties in Illinois, and in Wisconsin, county administration and finances are in charge of a board of supervisors elected by townships and cities, as in New York. In some Illinois counties and in Minnesota, the Dakotas, and Nebraska, there are small county boards of three to seven members, usually elected by districts. The larger boards of supervisors are more representative, but seem to be less efficient administrative authorities; and in a number of the larger counties of Michigan some of the powers of these boards have been transferred to small boards of auditors. As a rule, these county boards have no important legislative power; but in Michigan, by an act of 1909, the boards of supervisors were given a general grant of local legislative power, to meet the conditions brought about by the restriction on special acts by the legislature in the new constitution of that state.

Other elective county officers in these states are the prosecuting attorney, sheriff, coroner, county clerk, county treasurer, auditor or assessor, and surveyor.

The political importance of the county is indicated by the position occupied by the county committee in the party organizations, and by the centring of campaign activity within the district.

I pass to the mixed or compromise system as it appears in the other group of states, of which Pennsylvania, Ohio, Indiana, and Iowa may be taken as samples. In these states we find no town meeting. Their township may have greater or less power, but its members do not come together in a primary assembly; it elects its local officers, and acts only through and by them. In Ohio there are three township trustees with the entire charge of local affairs, a clerk, and a treasurer. In Pennsylvania the township is governed by two or three supervisors, elected for three years, one each year, together with an assessor (for valuation purposes), a town Clerk, three auditors, six school directors, elected for three years, two each year; and (where the poor are a township charge) two overseers of the poor. The supervisors may lay a rate on the township not exceeding one per cent on the valuation of the property within its limits for the repair of roads, highways, and bridges, and the overseers of the poor may, with the consent of two justices,28 levy a similar tax for the poor. But as the poor are usually a county charge, and as any ratepayer may work out his road tax in labour, township rates amount to very little. “In Iowa,” says Mr. Macy,

In most of these states the county overshadows the township. Taking Pennsylvania as an example, we find each county governed by a board of three commissioners, elected for three years, upon a minority vote system, the elector being allowed to vote for two candidates only. Besides these there are officers, also chosen by popular vote for three years, viz., a sheriff, coroner, prothonotary, registrar of wills, recorder of deeds, treasurer, surveyor, three auditors, clerk of the court, district attorney. Some of these officers are paid by fees, except in counties whose population exceeds 50,000, where salaries are usually provided. A county with at least 40,000 inhabitants is a judicial district, and elects its judge for a term of two years. No new county is to contain less than 400 square miles of 20,000 inhabitants.30 The county, besides its judicial business and the management of the prisons incident thereto, besides its duties as respects highways and bridges, has educational and usually also poor-law functions; and it levies its county tax and the state taxes through a collector for each township whom it and not the township appoints. It audits the accounts of townships, and has other rights of control over these minor communities exceeding those allowed by Michigan or Illinois. I must not omit to remark that where any local area is not governed by a primary assembly of all its citizens, as in those states where there is no town meeting, and in all states in respect to counties, a method is frequently provided for taking the judgment of the citizens of the local area, be it township or county, by popular vote at the polls upon a specific question, usually the borrowing of money or the levying of a rate beyond the regular amount. This is an extension to local divisions of the so-called “plebiscitary” or referendum method, whose application to state legislation has been discussed in a preceding chapter. It seems to work well, for by providing an exceptional method of meeting exceptional cases, it enables the ordinary powers of executive officials, whether in township or county, to be kept within narrow limits.

Want of space has compelled me to omit from this sketch many details which might interest European students of local government, not can I attempt to indicate the relations of the rural areas, townships, and counties, to the incorporated villages and cities which lie within their compass further than by observing that cities, even the smaller ones, are usually separated from the townships, that is to say, the township government is superseded by the city government, while cities of all grades remain members of the counties, bear their share in county taxation, and join in county elections. Often, however, the constitution of a state contains special provisions to meet the case of a city so large as practically to overshadow or absorb the county, as Chicago does the county of Cook, and Cincinnati the county of Hamilton, and sometimes the city is made a county by itself.

chapter 49

Observations on Local Government

It may serve to clear up a necessarily intricate description if I add here a few general remarks applicable to all, or nearly all, of the various systems of local government that prevail in the several states of the Union.

I. Following American authorities, I have treated the New England type of system as a distinct one, and referred the Northwestern states to the mixed type. But the European reader may perhaps figure the three systems most vividly to his mind if he will divide the Union into three zones—Northern, Middle, and Southern. In the Northern, which, beginning at the Bay of Fundy, stretches west to Puget Sound, he will find a primary assembly, the town or township meeting, in preponderant activity as the unit of local government. In the Middle zone, stretching from New York to California, inclusive, along the fortieth parallel of latitude, he will find the township dividing with the county the interests and energy of the people. In some states of this zone the county is the more important organism and dwarfs the township; in some the township seems to be gaining on the county; but all are alike in this, that you cannot lose sight for a moment of either the smaller or the larger area, and that both areas are governed by elected executive officers. The third zone includes all the Southern states, in which the county is the predominant organism, though here and there school districts and even townships are growing in significance.

II. Both county and township are, like nearly everything else in America, English institutions which have suffered a sea change. “The Southern county is an attenuated English shire with the towns left out.” 1 The Northern township is an English seventeenth-century parish, in which age the English parish was still in full working order as a civil no less than an ecclesiastical organization, holding common property, and often coextensive with a town. The town meeting is partly perhaps the manor court, partly the English vestry; the selectmen correspond in a way to the churchwardens, or select vestrymen, called back by the conditions of colonial life into an activity fuller than they exerted in England even in the seventeenth century, and far fuller than they retained in the nineteenth.2 In England local self-government, except as regards the poor law, tended to decay in the smaller (i.e., parish or township) areas; the greater part of such administration as these latter needed, fell either to the justices in petty sessions or to officials appointed by the county or by the central government, until the legislation of the present century began to create new districts, especially poor law and sanitary districts, for local administration.3 In the wider English area, the county, true self-government died out with the ancient shire moot, and fell into the hands of persons (the justices assembled in Quarter Sessions) nominated by the Crown, on the recommendation of the lord-lieutenant. It was only in 1888 that a system of elective county councils was created by statute, only in 1894 that primary parish meetings were created in the less populous local areas, parish councils in those somewhat larger. In the American colonies the governor filled the place which the Crown held in England; but even in colonial days there was a tendency to substitute popular election for gubernatorial nomination; and county government, obeying the universal impulse, is now everywhere democratic in form; though in the South, while slavery and the plantation system lasted, it was practically aristocratic in its spirit and working.

III. In England the control of the central government—that is, of Parliament—is now maintained not only by statutes defining the duties and limiting the powers of the various local bodies, but also by the powers vested in sundry departments of the executive, the Local Government Board, Home Office, and Treasury, of disallowing certain acts of these bodies, and especially of supervising their expenditure and checking their borrowing. In American states the executive departments have no similar functions. The local authorities are restrained partly by the state legislature, whose statutes of course bind them, but still more effectively, because legislatures are not always to be trusted, by the state constitutions. These instruments usually—the more recent ones I think invariably—contain provisions limiting the amount which a county, township, village, school district, or other local area may borrow, and often also the amount of tax it may levy, by reference to the valuation of the property contained within its limits. They have been found valuable in checking the growth of local indebtedness, which had become, even in rural districts, a serious danger.4 The total local debt was in 1902:

This sum bears a comparatively small proportion to the total debt of the several states and of the cities, which was then:

County and school district debts declined 8 per cent between 1870 and 1880, whereas city indebtedness was then rapidly increasing. Since 1880 all three have risen, though slowly, except the school district debt, which grew fast. The aggregate debt of counties and minor civil divisions (including cities) was in 1902 $1,630,069,610, being $20.74 per capita, a large rise from 1890, when it was $14.79 per capita.

IV. County and township or school district taxes are direct taxes, there being no octroi in America, and are collected along with state taxes in the smallest tax-gathering area, i.e., the township, where townships exist.5 Local rates are not, however, as in England, levied on immovable property only, but also on personal property, or rather so much of it as the assessors can reach. Lands and houses are often assessed far below their true value, because the township assessors have an interest in diminishing the share of the county tax which will fall upon their township similar to the interest of the county assessors in diminishing the share of the state tax to be borne by their county.6 Real property is taxed in the place where it is situate; personalty only in the place where the owner resides.7 But the suffrage, in local as well as in state and national elections, is irrespective of property. It goes with residence, and no citizen can vote in more than one place. A man may have a dozen houses or farms in as many cities, counties, or townships; he will vote, even for local purposes, only in the spot where he is held to reside.

The great bulk of local expenditure is borne by local taxes. But in some states a portion of the county taxes is allotted to the aid of school districts, so as to make the wealthier districts relieve the burden of the poorer, and often a similar subvention is made from state revenues. The public schools, which are everywhere and in all grades gratuitous, absorb a very large part of the whole revenue locally raised,8 and in addition to what taxation provides they receive a large revenue from the lands which, under federal or state legislation, have been set apart for educational purposes.9 On the whole, the burden of taxation in rural districts is not heavy, nor is the expenditure often wasteful, because the inhabitants, especially under the town-meeting system, look closely after it.10

V. It is noteworthy that the Americans, who are supposed to be especially fond of representative assemblies, have made very little use of representation in their local government. The township is usually governed either by a primary assembly of all citizens or else, as in such states as Ohio and Iowa, by a very small board, not exceeding three, with, in both sets of cases, several purely executive officers.11 In the county there is seldom or never a county board possessing legislative functions (though New York has begun to tend that way), usually only three commissioners or supervisors with some few executive or judicial officers. Local legislation (except in so far as it appears in the bye-laws of the town meeting or selectmen) is discouraged. The people seem jealous of their county officials, electing them for short terms, and restricting each to a special range of duties. This is perhaps only another way of saying that the county, even in the South, has continued to be an artificial entity, and has drawn to itself no great part of the interest and affections of the citizens. Over five-sixths of the Union each county presents a square figure on the map, with nothing distinctive about it, nothing “natural” about it, in the sense in which such English counties as Kent or Cornwall are natural entities. It is too large for the personal interest of the citizens: that goes to the township. It is too small to have traditions which command the respect or touch the affections of its inhabitants: these belong to the state.12

VI. The chief functions local government has to discharge in the United States may be summarized in a few paragraphs:

The administration of justice was one of the first needs which caused the formation of the county, and matters connected with it still form a large part of county business. The voters elect a judge or judges, and the local prosecuting officer, called the district attorney, and the chief executive officer, the sheriff.14 Prisons are a matter of county concern. Police is always locally regulated, but in the Northern states more usually by the township than by the county. However, this branch of government, so momentous in continental Europe, is in America comparatively unimportant outside the cities. The rural districts get on nearly everywhere with no guardians of the peace, beyond the township constable;15 nor does the state government, except, of course, through statutes, exercise any control over local police administration.16 In the rural parts of the Eastern and Middle states property is as safe as anywhere in the world. In such parts of the West as are disturbed by dacoits, or by solitary highwaymen, travellers defend themselves, and, if the sheriff is distant or slack, lynch law may usefully be invoked. The care of the poor is thrown almost everywhere upon local and not upon state authorities,17 and defrayed out of local funds, sometimes by the county, sometimes by the township. The poor laws of the several states differ in so many particulars that it is impossible to give even an outline of them here. Little outdoor relief is given, though in most states the relieving authority may, at his or their discretion, bestow it; and pauperism is not, and has never been, a serious malady, except in some few of the greater cities, where it is vigorously combated by volunteer organizations largely composed of ladies. The total number of persons returned as alms-house-paupers in the whole Union was, in 1880, 73,045, and in 1910, 84,419. There are no trustworthy statistics regarding the number of persons receiving outdoor relief over the country as a whole, but it is extremely small, being 1.014 per thousand to the estimated population.

Sanitation, which has become so important a department of English local administration, plays a small part in the rural districts of America, because their population is so much more thinly spread over the surface that the need for drainage and the removal of nuisances is less pressing; moreover, as the humbler classes are better off, unhealthy dwellings are far less common. Public health officers and sanitary inspectors would, over the larger part of the county, have little occupation.18

To education, I can refer only in passing, because the differences between the arrangements of the several states are too numerous to be described here. It has hitherto been not only a more distinctively local matter, but one relatively far more important than in England, France, or Italy. And there is usually a special administrative body, often a special administrative area, created for its purposes—the school committee and the school district.19 The vast sum expended on public instruction has been already mentioned. Though primarily dealt with by the smallest local circumscription, there is a growing tendency for both the county and the state to interest themselves in the work of instruction by way of inspection, and to some extent of pecuniary subventions. Not only does the county often appoint a county superintendent, but there are in some states county high schools and (in most) county boards of education, besides a State Board of Commissioners.20 I need hardly add that the schools of all grades are more numerous and efficient in the Northern and Western than in the Southern states, which are still comparatively poor, where the population is seldom dense, and where it is deemed needful to separate white and coloured children. In old colonial days, when the English Commissioners for Foreign Plantations asked for information on the subject of education from the governors of Virginia and Connecticut, the former replied, “I thank God there are no free schools or printing presses, and I hope we shall not have any these hundred years”;21 and the latter, “One-fourth of the annual revenue of the colony is laid out in maintaining free schools for the education of our children.” The disparity was prolonged and intensified in the South by the existence of slavery. Now that slavery has gone, the South makes rapid advances; but the proportion of illiteracy, especially of course among the Negroes, is still high.22

It will be observed that of the general functions of local government above described, three, viz., police, sanitation, and poor relief, are simpler and less costly than in England, and indeed in most parts of western and central Europe. It has therefore proved easier to vest the management of all in the same local authority, and to get on with a smaller number of special executive officers. Education is indeed almost the only matter which has been deemed to demand a special body to handle it. Nevertheless, even in America the increasing complexity of civilization, and the growing tendency to invoke governmental aid for the satisfaction of wants which were not previously felt, or if felt, were met by voluntary action, tend to enlarge the sphere and multiply the functions of local government.

VII. How far has the spirit of political party permeated rural local government? I have myself asked this question a hundred times in travelling through America, yet I find it hard to give any general answer, because there are great diversities in this regard not only between different states, but between different parts of the same state, diversities due sometimes to the character of the population, sometimes to the varying intensity of party feeling, sometimes to the greater or less degree in which the areas of local government coincide with the election districts in which state senators or representatives are chosen. On the whole it would seem that county officials are apt to be chosen on political lines, not so much because any political questions come before them, or because they can exert much influence on state or federal elections, as because these paid offices afford a means of rewarding political services and securing political adhesions. Each of the great parties usually holds its county convention and runs its “county ticket,” with the unfortunate result of intruding national politics into matters with which they have nothing to do, and of making it more difficult for good citizens outside the class of professional politicians to find their way into county administration. However, the party candidates are seldom bad men, and the ordinary voter is less apt to vote blindly for the party nominee than he would be in federal or state elections. In the township and rural school district party spirit is much less active. The offices are often unpaid, and the personal merits of the candidates are better known to the voters than are those of the politicians who seek for county office.23 Rings and bosses (of whom more anon) are not unknown even in rural New England. School committee elections are often influenced by party affiliations. But on the whole, the township and its government keep themselves pretty generally out of the political whirlpool. Their posts are filled by honest and reasonably competent men.

VIII. The apparent complexity of the system of local government sketched in the last preceding chapter is due entirely to the variations between the several states. In each state it is, as compared with that of rural England, eminently simple. There are few local divisions, few authorities; the divisions and authorities rarely overlap. No third local area and local authority intermediate between township and county, and similar to the English Rural District with its Council has been found necessary. Especially simple is the method of levying taxes. In most states a citizen pays at the same time, to the same officer, upon the same paper of demand, all his local taxes, and not only these, but also his state tax; in fact, all the direct taxes which he is required to pay. The state is spared the expense of maintaining a separate collecting staff, for it leans upon and uses the local officials who do the purely local work. The taxpayer has not the worry of repeated calls upon his cheque book.24 Nor is this simplicity and activity of local administration due to its undertaking fewer duties, as compared with the state, than is the case in Europe. On the contrary, the sphere of local government is in America unusually wide,25 and widest in what may be called the most characteristically American and democratic regions, New England and the Northwest. Americans often reply to the criticisms which Europeans pass on the faults of their state legislatures and the shortcomings of Congress by pointing to the healthy efficiency of their rural administration, which enables them to bear with composure the defects of the higher organs of government, defects which would be less tolerable in a centralized country, where the national government deals directly with local affairs, or where local authorities await an initiative from above.

Of the three or four types or systems of local government which I have described, that of the town or township with its popular primary assembly has been the best. It is the cheapest and the most efficient; it is the most educative to the citizens who bear a part in it. The town meeting has been not only the source but the school of democracy.26 The action of so small a unit needs, however, to be supplemented, perhaps also in some points supervised, by that of the county, and in this respect the mixed system of the Middle states is deemed to have borne its part in the creation of a more perfect type. For some time past an assimilative process has been going on over the United States tending to the evolution of such a type.27 In adopting the township system of New England, the Northwestern states have borrowed some of the attributes of the Middle states’ county system. The Middle states have developed the township into a higher vitality than it formerly possessed there. Some of the Southern states are introducing the township, and others are likely to follow as they advance in population and education. It is possible that by the middle or end of the twentieth century there will prevail one system, uniform in its outlines, over the whole country, with the township for its basis, and the county as the organ called to deal with those matters which, while they are too large for township management, it seems inexpedient to remit to the unhealthy atmosphere of a state capital.

chapter 50

The Government of Cities

The growth of great cities has been among the most significant and least fortunate changes in the character of the population of the United States during the century that has passed since 1787. The census of 1790 showed only five cities with more than 8,000, and only one with more than 33,000 inhabitants. In 1880 there were 286 exceeding 8,000, forty-five exceeding 40,000, nineteen exceeding 100,000; while the census of 1910 showed 774 exceeding 8,000, 228 exceeding 25,000, 50 exceeding 100,000. The ratio of persons living in cities exceeding 8,000 inhabitants to the total population was, in 1790, 3.35 per cent, in 1840, 8.52, in 1880, 22.57, in 1890, 29.12, in 1910, 38.74 per cent. And this change has gone on with accelerated speed notwithstanding the enormous extension of settlement over the vast regions of the West. Needless to say that a still larger and increasing proportion of the wealth of the country is gathered into the larger cities. Their government is therefore a matter of high concern to America, and one which cannot be omitted from a discussion of transatlantic politics. Such a discussion is, however, exposed to two difficulties. One is that the actual working of municipal government in the United States is so inextricably involved with the party system that it is hard to understand or judge it without a comprehension of that system, an account of which I am, nevertheless, forced to reserve for subsequent chapters. The other is that the laws which regulate municipal government are even more diverse from one another than those whence I have drawn the account already given of state governments and rural local government. For not only has each state its own system of laws for the government of cities, but within a state there is, as regards the cities, little uniformity in municipal arrangements. Larger cities are often governed differently from the smaller ones; and one large city is differently organized from another. So far as the legal arrangements go, no general description, such as might be give of English municipal governments under the Municipal Corporation Acts, is possible in America. I am therefore obliged to confine myself to a few features common to most city governments, occasionally taking illustrations from the constitution or history of some one or other of the leading municipalities.

The history of American cities, though striking and instructive, has been short. Of the ten greatest cities of today only three—Baltimore, New York, and Philadelphia—were municipal corporations in 1820.1 Every city has received its form of government from the state in which it stands, and this form has been repeatedly modified. Formerly each city obtained a special charter; now in nearly all states there are general laws under which a population of a certain size and density may be incorporated. Yet, as observed above, special legislation for particular cities, especially the greater ones, continues to be very frequent.

Although American city governments have a general resemblance to those English municipalities which were their first model,2 their present structure shows them to have been much influenced by that of the state governments. We find in most of the larger cities:3

• A mayor, head of the executive, and elected directly by the voters within the city
• Certain executive officers or boards, some directly elected by the city voters, others nominated by the mayor or chosen by the city legislature
• A legislature, consisting usually of two, but sometimes of one chamber, directly elected by the city voters
• Judges, usually elected by the city voters, but sometimes appointed by the state, or (as to some judges) by the mayor

What is this but the frame of a state government applied to the smaller area of a city? The mayor corresponds to the governor, the officers or boards to the various state officials and boards (described in Chapter 41) elected, in most cases, by the people; the aldermen and common council (as they are generally called) to the state Senate and Assembly; the city elective judiciary to the state elective judiciary.4

A few words on each of these municipal authorities. The mayor is by far the most conspicuous figure in city governments, much more important than the mayor of an English or Irish borough, or the provost of a Scotch one. He holds office, sometimes for one year, but now more frequently for two, three, or four years. The general tendency is toward a four-year term, as in New York, Baltimore, Chicago, Philadelphia, Boston, and St. Louis. In some cities he is not reeligible. He is directly elected by the people of the whole city, and is usually not a member of the city legislature.5 He has, almost everywhere, a veto on all ordinances passed by that legislature, which, however, can be overriden by a two-thirds majority. In many cities he appoints some among the heads of departments and administrative boards, though usually the approval of the legislature or of one branch of it6 is required. Quite recently some city charters have gone so far as to make him generally responsible for all the departments (subject to the control of supply by the legislative body), and therewith, liable to impeachment for misfeasance.7 He receives a considerable salary, varying with the size of the city, and in New York City reaching $15,000. It rests with him, as the chief executive officer, to provide for the public peace, to quell riots, and, if necessary, to call out the militia. He often exerts, in practice, some discretion as to the enforcement of the law; he may, for instance, put in force Sunday Closing Acts or regulations, or omit to do so.

The practical work of administration is carried on by a number of departments, sometimes under one head, sometimes constituted as boards or commissions. The most important of these are directly elected by the people, for a term of one, two, or four years. Some, however, are chosen by the city legislature, some by the mayor with the approval of the legislature or its upper chamber. In most cities the chief executive officers have been disconnected from one another, owing no common allegiance, except that which their financial dependence on the city legislature involves, and communicating less with the city legislature as a whole than with its committees, each charged with some one branch of administration, and each apt to job it.

Education has been generally treated as a distinct matter, with which neither the mayor nor the legislature has been suffered to meddle. It is committed to a Board of Education, whose members are separately elected by the people, or, as in Brooklyn, appointed by the mayor, levy (though they do not themselves collect) a separate tax, and have an executive staff of their own at their disposal.8

The city legislature usually consists in small cities of one chamber, in large ones of two, the upper of which generally bears the name of the board of aldermen, the lower that of the common council.9 All are elected by the citizens, generally in wards, but the upper house occasionally by districts or on what is called a “general ticket,” i.e., a vote over the whole city.10 Usually the common council is elected for one year, or at most for two years, the upper chamber frequently for a longer period.11 Both are usually unpaid in the smaller cities, sometimes paid in the larger. All city legislation, that is to say, ordinances, bye-laws, and votes of money from the city treasury, are passed by the council or councils, subject in many cases to the mayor’s veto. Except in a few cities governed by very recent charters, the councils have some control over at least the minor officials. Such control is exercised by committees, a method borrowed from the state and national legislatures, and suggested by the same reasons of convenience which have established it there, but proved by experience to have the evils of secrecy and irresponsibility as well as that of disconnecting the departments from one another.

The city judges are only in so far a part of the municipal government that in most of the larger cities they are elected by the citizens, like the other chief officers. There are usually several superior judges, chosen for terms of five years and upwards, and a larger number of “police judges” or “city magistrates,” 12 generally for shorter terms. Occasionally, however, the state has prudently reserved to itself the appointment of judges. Thus in New Haven, Connecticut (population in 1910, 133,605):

It need hardly be said that all the above officers, from the mayor and judges downwards, are, like state officers, elected by manhood suffrage. Their election is usually made to coincide with that of state officers, perhaps also of federal congressmen. This saves expense and trouble. But as it not only bewilders the voter in his choice of men by distracting his attention between a large number of candidates and places, but also confirms the tendency, already strong, to vote for city officers on party lines, there has of late years been a movement in some few spots to have the municipal elections fixed for a different date from that of state or federal elections, so that the undistracted and nonpartisan thought of the citizens may be given to the former.14

At present the disposition to run and vote for candidates according to party is practically universal, although the duty of party loyalty is deemed less binding than in state or federal elections. When both the great parties put forward questionable men, a nonpartisan list, or so-called “citizens’ ticket,” may be run by a combination of respectable men of both parties. Sometimes this attempt succeeds. However, though the tenets of Republicans and Democrats have absolutely nothing to do with the conduct of city affairs, though the sole object of the election, say of a city comptroller or auditor, may be to find an honest man of good business habits, four-fifths of the electors in nearly all cities give little thought to the personal qualifications of the candidates, and vote the “straight ticket.”

Early in the present century a new form of municipal government began to spread through the country. The city of Galveston in Texas had been struck by a tidal wave, which did frightful damage, and the people in order to deal with the emergency appointed three commissioners to handle city business ad interim. The plan succeeded so well that it was permanently adopted, and the Galveston charter of 1901 provides a body of five commissioners, elected by the voters at large for two years, one being mayor, president of the board, and each of the others having a special department of city business allotted to him. The commission as a whole passes ordinances, votes the annual budget, gives out contracts, and makes the principal appointments, upon the nomination of the commissioner in whose department the appointment lies. Under this form of government marked improvements have been effected in every branch of municipal work, and the whole floating debt has been paid off. The city owns its waterworks, sewer plant, and electric light plant. The large city of Des Moines in Iowa subsequently, under a general state law permitting cities to frame for themselves their schemes of government, enacted generally a similar plan in which the four commissioners who serve with the mayor have (1) accounts and finance, (2) public safety, (3) streets and public improvements, (4) parks and public property, as their several provinces. One-fourth of the voters can demand a recall vote, and all grants of franchises, as well as ordinances not of an urgent character, have to be submitted to a referendum vote. The example of these two cities has been so largely followed that in 1913 there were 371 cities, including some in the Eastern states, in which the plan was in operation, while several states have passed statutes permitting their cities to adopt it. So far, it seems to be working well, though the elections “at large” in which party has been to a considerable extent eliminated, sometimes give odd results.15

The functions of city governments may be distributed into three groups: (a) those which are delegated by the state out of its general coercive and administrative powers, including the police power, the granting of licences, the execution of laws relating to adulteration and explosives; (b) those which though done under general laws are properly matters of local charge and subject to local regulation, such as education and the care of the poor; and (c) those which are not so much of a political as of a purely business order, such as the paving and cleansing of streets, the maintenance of proper drains, the provision of water and light. In respect of the first, and to some extent of the second of these groups, the city may be properly deemed a political entity; in respect of the third it is rather to be compared to a business corporation or company, in which the taxpayers and shareholders, doing, through the agency of the city officers, things which each might do for himself, though with more cost and trouble. All three sets of functions are dealt with by American legislation in the same way, and are alike given to officials and (where the commission plan has not been adopted) a legislature elected by persons of whom a large part pay no direct taxes. Education, however, is usually detached from the general city government and entrusted to a separate authority,16 while in some cities the control of the police has been withheld or withdrawn from that government, and entrusted to the hands of a separate board.17 The most remarkable instance is that of Boston in which city a Massachusetts statute of 1885 entrusts the police department and the power to license, regulate, and restrain the sale of intoxicating liquors, to a special board of three persons, to be appointed for five years by the state governor and council. Both political parties are directed by the statute to be represented on the board. (This is a frequent provision in recent charters.) The city pays on the board’s requisition all the expenses of the police department. In New York the police commissioners were for a time appointed by the mayor, but in order to “take the department out of politics” an unwritten understanding was established that he, though himself always a partisan, should appoint two Democratic and two Republican commissioners.18 The post of policeman has been “spoils” of the humbler order, but spoils sometimes equally divided between the parties.

Taxes in cities, as in rural districts, are levied upon personal as well as real property; and the city tax is collected along with the county tax and state tax by the same collectors. There are, of course, endless varieties in the practice of different states and cities as to methods of assessment and to the minor imposts subsidiary to the property tax. Both real and personal property are usually assessed far below their true value, the latter because owners are reticent, the former because the city assessors are anxious to take as little as possible of the state and county burden on the shoulders of their own community, though in this patriotic effort they are checked by the county and state boards of equalization. Taxes are usually so much higher in the larger cities than in the country districts or smaller municipalities, that there is a strong tendency for rich men to migrate from the city to its suburbs in order to escape the city collector. Perhaps the city overtakes them, extending its limits and incorporating its suburbs; perhaps they fly farther afield by the railway and make the prosperity of country towns twenty or thirty miles away. The unfortunate consequence follows, not only that the taxes are heavier for those who remain in the city, but that the philanthropic and political work of the city loses the participation of those who ought to have shared in it. For a man votes in one place only, the place where he resides and pays taxes on his personalty; and where he has no vote, his is neither eligible for local office nor deemed entitled to take a part in local political agitation.

Among the great cities, one of those which have recently given themselves a new frame of government is Boston (population in 1910, 670,585). The main features of that scheme, which came into force in 1909, are as follows:

The government of the city is now in the hands of a mayor elected by the voters for a term of four years, and a single council of nine members similarly elected for a three-year term. Three councillors retire annually.

The Mayor. Nominations to the office of mayor may be made only by petitions signed by at least 5,000 qualified voters of the city, these signatures to be obtained upon official forms and verified by affidavit. No voter may sign more than one petition. The petitions must be filed with the election commissioners (who are appointed by the mayor) at least twenty-five days prior to the date of the municipal election. The signatures are then scrutinized by these election commissioners and not less than sixteen days before the date of the election the commissioners announce the names of those candidates whom they have found to have been validly nominated. Such names are then placed upon an official ballet, without party designation, and in an order of names determined by lot. The municipal election takes place on the Tuesday after the second Monday in January, and the city’s fiscal year begins on the first Monday in February.

Although the mayor is elected for a four-year term, provision is made for his recall (i.e., dismissal) at the end of two years. The regular state election is used to provide the machinery for this recall; but in order to be effective the recall must secure, at this election, a majority of the total enrolled votes, not merely a majority of the polled votes. This means in practice that about two-thirds of the polled votes are necessary in order to recall a mayor, and it ought to be emphasized that this recall may be put into operation only at one stage in the mayor’s term, namely, at the point where half his term has been served. The salary of the mayor is $10,000 per annum.

The mayor appoints all heads of city departments whose appointments are not otherwise provided for; and appointments made by the mayor are not subject to confirmation by the municipal council. But appointments made by him are not valid unless a certificate is obtained from the state Civil Service Commission “that the appointee is in its opinion qualified by education, training, and experience for the said office.” Any official appointed by the mayor may be removed by him at any time, but he must state “in detail the specific reasons for such removal.”

All recommendations for the expenditure of money must originate with the mayor, and while the council may omit or reduce any item of expenditure he recommends, it is not empowered to insert or increase any such item. Any resolution or vote of the council may be vetoed by the mayor and such veto is final.

The Council. The city council consists of nine members elected not by wards but from the city at large. Candidates are placed in nomination only by petitions signed by at least 5,000 registered voters, the regulations relating to the filing and verification of these petitions being in all respects similar to those prescribed in connection with nominations for the mayoralty. The names of candidates for election to the council are placed upon an official ballot in an order determined by lot and without any party designation. There is no provision for the recall of councillors before their three-year terms have expired; but three of the nine councillors go out of office each year. Councillors are paid $1,500 per annum.

The powers of the council include the making of city ordinances, the approving of appropriations including the annual budget, the authorization of loans, and the sanctioning of certain contracts extending over more than one year. All these powers are exercised, however, subject to the mayor’s veto power. Authority to grant privileges in the streets, and franchises, permits, and locations, is vested in a board of three street commissioners appointed by the mayor, but the city council, with the mayor’s approval, may fix the general terms upon which such privileges may be granted.

An interesting feature of Boston government is the Finance Commission, a body of five members appointed by the governor of the state. These commissioners are appointed for a five-year term, and one member retires annually. The chairman of the commission, designated by the governor, is paid $5,000 per annum; the other members are paid $3,000 each. The Finance Commission is given no mandatory or executive powers in any branch of city government; but it is empowered to investigate “any and all matters relating to appropriations, loans, expenditures, accounts, and methods of administration,” reporting the results of its investigations to the mayor, the city council, the governor, and the state legislature. The commission is authorized to employ experts to assist in its investigations, and in this connection may spend not more than $25,000 per year. It has power to compel the attendance of witnesses and the production of papers.

Administrative Departments. The administration of Boston is immediately conducted by some thirty different departments. Most of these have a single commissioner in charge; but some have boards of three men. Most of the heads of departments are paid; a few of the boards are unpaid. None are elected by popular vote, and none are appointed by the council. Nearly all are appointed by the mayor, the only important exceptions being the police commissioner, and the board of excise commissioners who are appointed by the governor, and the Trustees of the Franklin Fund who are appointed by the supreme court of the state. All judges, including municipal justices, are in Massachusetts appointed by the state governor with the confirmation of his council.

Metropolitan Commissions. Boston is the centre of a metropolitan district comprising over thirty municipalities with a total population of about a million and a quarter. In order that certain services throughout this area should be somewhat coordinated, a number of metropolitan commissions have been established, the members of these commissions being appointed by the governor of the state. The Metropolitan Water and Sewerage Board has charge of the main water supply and trunk sewers throughout the greater part of the metropolitan district; and the Metropolitan Parks Commission has created and maintains an extensive system of parks and boulevards. For carrying through various undertakings which concern two or more municipalities (including Boston) various ad hoc commissions have been established, such as the Charles River Basin Commission (composed of three members appointed by the governor); and the Boston Transit Commission (composed of five members appointed, three by the governor and two by the mayor of Boston).

School Administration. Quite distinct from the regular city administration is the Boston School Committee, composed of five members elected for three years with provision for one or two members retiring each year. These are elected by popular vote from the city at large, the rules relating to their nomination and election being in all respects similar to those applying in the case of municipal councillors.

As respect school administration, a branch of city work whose importance is more and more recognized, and which suffers, perhaps more than any other, from the application of machine and spoils methods, reference may be made to a change recently introduced into the government of the great city of St. Louis. Under a state statute of 1897 the board of education consists of twelve members chosen by the voters at large for six years, four members retiring every second year. Every member swears that he will consider merit and fitness only in making appointments. The functions of the board, which is by common consent divided equally between the two parties, are chiefly those of supervision, executive work being left to the superintendent of schools and other officials. By this method education is said to have been “taken out of politics,” and the efficiency of the schools has been raised.

St. Louis (population in 1910, 687,029), though it has latterly had upright mayors, and often a fair upper house of its city legislature, has suffered from deficient purity in its lower house; and in 1910 tried to use the power entrusted to it of giving itself a new charter. The draft was rejected by the people.

chapter 51

The Working of City Governments

Two tests of practical efficiency may be applied to the government of a city: What does it provide for the people, and what does it cost the people? Space fails me to apply in detail the former of these tests, by showing what each city does or omits to do for its inhabitants; so I must be content with observing that in the United States generally constant complaints are directed against the bad paving and cleansing of the streets, the nonenforcement of the laws forbidding gambling and illicit drinking, and in some places against the sanitary arrangements and management of public buildings and parks. It would appear that in the greatest cities there is far more dissatisfaction than exists with the municipal administration in such cities as Glasgow, Manchester, Dublin, Hamburg, Lyons.

The following indictment of the government of Philadelphia is somewhat exceptional in its severity, and however well founded as to that city, must not be taken to be typical. A memorial presented to the Pennsylvania legislature some time ago by a number of the leading citizens of the Quaker City contained these words:

In most of the points comprised in the above statement, Philadelphia was probably—and though she has been several times reformed since then, is still—among the least fortunate of American cities. He, however, who should interrogate one of the “good citizens” of Pittsburgh, Cincinnati, New Orleans, New York, Chicago, San Francisco, would have heard then, and would hear now, similar complaints, some relating more to the external condition of the city, some to its police administration, but all showing that the objects for which municipal government exists have been very imperfectly attained.

The other test, that of expense, is easily applied. Both the debt and the taxation of American cities have risen with unprecedented rapidity, and now stand at an alarming figure.

A table of the increase of population, valuation, taxation, and debt, in fifteen of the largest cities of the United States, from 1880 to 1905, shows the following result:

Looking at some individual cases, we find that the debt rose as follows:

Much of this debt is doubtless represented by permanent improvements, yet for another large, and in some cities far larger, part there is nothing to show; it is due to simple waste or to malversation on the part of the municipal authorities.

As respects current expenditure, New York in 1884 spent on current city purposes, exclusive of payments on account of interest on debt, sinking fund, and maintenance of judiciary, the sum of $20,232,786—equal to $16.76 for each inhabitant (census of 1880). In Boston, in the same year, the city expenditure was $9,909,019—equal to $27.30 for each inhabitant (census of 1880). In 1908 the total ordinary expenditure of New York was $156,545,148 (being $32.30 for each inhabitant); that of Boston, $17,464,573 (being $28.75 for each inhabitant).4

There is no denying that the government of cities is the one conspicuous failure of the United States. The deficiencies of the national government tell but little for evil on the welfare of the people. The faults of the state governments are insignificant compared with the extravagance, corruption, and mismanagement which mark the administrations of most of the great cities. For these evils are not confined to one or two cities. The commonest mistake of Europeans who talk about America is to assume that the political vices of New York are found everywhere. The next most common is to suppose that they are found nowhere else. In New York they have revealed themselves on the largest scale. They are “gross as a mountain, open, palpable.” But there is not a city with a population exceeding 200,000 where the poison germs have not sprung into a vigorous life; and in some of the smaller ones, down to 50,000, it needs no microscope to note the results of their growth. Even in cities of the third rank similar phenomena may occasionally be discerned, though there, as someone has said, the jet black of New York or San Francisco dies away into a harmless gray.

For evils which appear wherever a large population is densely aggregated, there must be some general and widespread causes. What are these causes? Adequately to explain them would be to anticipate the account of the party system to be given in the second volume of this work, for it is that party system which has, not perhaps created, but certainly enormously aggravated them, and impressed on them their specific type.5 I must therefore restrict myself for the present to a brief enumeration of the chief sources of the malady, and the chief remedies that have been suggested for or applied to it. No political subject has been so copiously discussed of late years in America by able and experienced publicists, nor can I do better than present the salient facts in the words which some of these men, speaking in a responsible position, have employed.

The New York commissioners of 1876 appointed “to devise a plan for the government of cities in the State of New York,” sum up the mischief as follows:6

• 1. The accumulation of permanent municipal debt: In New York it was, in 1840, $10,000,000; in 1850, $12,000,000; in 1860, $18,000,000; in 1870, $73,000,000; in 1876, $113,000,000.7
• 2. The excessive increase of the annual expenditure for ordinary purposes: In 1816 the amount raised by taxation was less than ½ per cent on the taxable property; in 1850, 1.13 per cent; in 1860, 1.69 per cent; in 1870, 2.17 per cent; in 1876, 2.67 per cent. . . . The increase in the annual expenditure since 1850, as compared with the increase of population, is more than 400 per cent, and as compared with the increase of taxable property, more than 200 per cent.

They suggest the following as the causes:

• 1.Incompetent and unfaithful governing boards and officers.

  A large number of important offices have come to be filled by men possessing little, if any, fitness for the important duties they are called upon to discharge. . . . These unworthy holders of public trusts gain their places by their own exertions. The voluntary suffrage of their fellow-citizens would never have lifted them into office. Animated by the expectation of unlawful emoluments, they expend large sums to secure their places, and make promises beforehand to supporters and retainers to furnish patronage or place. The corrupt promises must be redeemed. Anticipated gains must be realized. Hence old and educated subordinates must be dismissed and new places created to satisfy the crowd of friends and retainers. Profitable contracts must be awarded, and needless public works undertaken. The amounts required to satisfy these illegitimate objects enter into the estimates on which taxation is eventually based, in fact, they constitute in many instances a superior lien upon the moneys appropriated for government, and not until they are in some manner satisfied do the real wants of the public receive attention. It is speedily found that these unlawful demands, together with the necessities of the public, call for a sum which, if taken at once by taxation, would produce dissatisfaction and alarm in the community, and bring public indignation upon the authors of such burdens. For the purpose of averting such consequences divers pretences are put forward suggesting the propriety of raising means for alleged exceptional purposes by loans of money, and in the end the taxes are reduced to a figure not calculated to arouse the public to action, and any failure thus to raise a sufficient sum is supplied by an issue of bonds. . . . Yet this picture fails altogether to convey an adequate notion of the elaborate systems of depredation which, under the name of city governments, have from time to time afflicted our principal cities; and it is moreover a just indication of tendencies in operation in all our cities, and which are certain, unless arrested, to gather increased force. It would clearly be within bounds to say that more than one-half of all the present city debts are the direct results of the species of intentional and corrupt misrule above described.

• 2.The introduction of state and national politics into municipal affairs.

  The formation of general political parties upon differences as to general principles or methods of State policy is useful, or at all events inevitable. But it is rare indeed that any such questions, or indeed any upon which good men ought to differ, arise in connection with the conduct of municipal affairs. Good men cannot and do not differ as to whether municipal debt ought to be restricted, extravagance checked, and municipal affairs lodged in the hands of competent and faithful officers. There is no more reason why the control of the public works of a great city should be lodged in the hands of a Democrat or a Republican than there is why an adherent of one or the other of the great parties should be made the superintendent of a business corporation. Good citizens interested in honest municipal government can secure that object only by acting together. Political divisions separate them at the start, and render it impossible to secure the object desired equally by both. . . . This obstacle to the union of good citizens paralyses all ordinary efforts for good municipal government. . . . The great prizes in the shape of place and power which are offered on the broad fields of national and State politics offer the strongest incentives to ambition. Personal advancement is in these fields naturally associated with the achievement of great public objects, and neither end can be secured except through the success of a political party to which they are attached. The strife thus engendered develops into a general battle in which each side feels that it cannot allow any odds to the other. If one seeks to turn to its advantage the patronage of municipal office, the other must carry the contest into the same sphere. It is certain that the temptation will be withstood by neither. It then becomes the direct interest of the foremost men of the nation to constantly keep their forces in hostile array, and these must be led by, among other ways, the patronage to be secured by the control of local affairs. . . . Next to this small number of leading men there is a large class who, though not dishonest or devoid of public spirit, are led by habit and temperament to take a wholly partisan view of city affairs. Their enjoyment of party struggles, their devotion to those who share with them the triumphs and defeats of the political game, are so intense that they gradually lose sight of the object for which parties exist or ought to exist, and considerable proportions of them in their devotion to politics suffer themselves to be driven from the walks of regular industry, and at last become dependent for their livelihood on the patronage in the hands of their chiefs. Mingled with them is nearly as large a number to whom politics is simply a mode of making a livelihood or a fortune, and who take part in political contests without enthusiasm, and often without the pretence of an interest in the public welfare, and devote themselves openly to the organization of the vicious elements of society in combinations strong enough to hold the balance in a closely-contested election, overcome the political leaders, and secure a fair share of the municipal patronage, or else extort immunity from the officers of the law. . . . The rest of the community, embracing the large majority of the more thrifty classes, averse to engaging in what they deem the ‘low business’ of politics, or hopeless of accomplishing any substantial good in the face of such powerful opposing interests, for the most part content themselves with acting in accordance with their respective parties. . . . It is through the agency of the great political parties, organized and operating as above described, that our municipal officers are and have long been selected. It can scarcely be matter of wonder then that the present condition of municipal affairs should present an aspect so desperate.

• 3.The assumption by the state legislature of the direct control of local affairs.

  This legislative intervention has necessarily involved a disregard of one of the most fundamental principles of republican government (the self-government of municipalities). . . . The representatives elected to the central (State) legislature have not the requisite time to direct the local affairs of the municipalities. . . . They have not the requisite knowledge of details. . . . When a local bill is under consideration in the legislature, its care and explanation are left exclusively to the representatives of the locality to which it is applicable; and sometimes by express, more often by a tacit understanding, local bills are ‘log-rolled’ through the houses. Thus legislative duty is delegated to the local representatives, who, acting frequently in combination with the sinister elements of their constituency, shift the responsibility for wrongdoing from themselves to the legislature. But what is even more important, the general representatives have not that sense of personal interest and personal responsibility to their constituents which are indispensable to the intelligent administration of local affairs. And yet the judgment of the local governing bodies in various parts of the State, and the wishes of their constituents, are liable to be overruled by the votes of legislators living at a distance of a hundred miles. . . . To appreciate the extent of the mischief done by the occupation of the central legislative body with the consideration of a multitude of special measures relating to local affairs, some good, probably the larger part bad, one has only to take up the session laws of any year at random and notice the subjects to which they relate. Of the 808 acts passed in 1870, for instance, 212 are acts relating to cities and villages, 94 of which relate to cities, and 36 to the city of New York alone. A still larger number have reference to the city of Brooklyn. These 212 acts occupy more than three-fourths of the 2000 pages of the laws of that year. . . . The multiplicity of laws relating to the same subjects thus brought into existence is itself an evil of great magnitude. What the law is concerning some of the most important interests of our principal cities can be ascertained only by the exercise of the patient research of professional lawyers. In many instances even professional skill is baffled. Says Chief-Justice Church: ‘It is scarcely safe for any one to speak confidently on the exact condition of the law in respect to public improvements in the cities of New York and Brooklyn. The enactments referring thereto have been modified, superseded, and repealed so often and to such an extent that it is difficult to ascertain just what statutes are in force at any particular time.

  “The uncertainties arising from such multiplied and conflicting legislation lead to incessant litigation with its expensive burdens, public and private.” . . . But this is not all nor the worst. It may be true that the first attempts to secure legislative intervention in the local affairs of our principal cities were made by good citizens in the supposed interest of reform and good government, and to counteract the schemes of corrupt officials. The notion that legislative control was the proper remedy was a serious mistake. The corrupt cliques and rings thus sought to be baffled were quick to perceive that in the business of procuring special laws concerning local affairs they could easily outmatch the fitful and clumsy labours of disinterested citizens. The transfer of the control of the municipal resources from the localities to the (State) capitol had no other effect than to cause a like transfer of the methods and arts of corruption, and to make the fortunes of our principal cities the traffic of the lobbies. Municipal corruption, previously confined within territorial limits, thenceforth escaped all bounds and spread to every quarter of the State. Cities were compelled by legislation to buy lands for parks and places because the owners wished to sell them; compelled to grade, pave, and sewer streets without inhabitants, and for no other purpose than to award corrupt contracts for the work. Cities were compelled to purchase, at the public expense, and at extravagant prices, the property necessary for streets and avenues, useless for any other purpose than to make a market for the adjoining property thus improved. Laws were enacted abolishing one office and creating another with the same duties in order to transfer official emoluments from one man to another, and laws to change the functions of officers with a view only to a new distribution of patronage, and to lengthen the terms of offices for no other pupose than to retain in place officers who could not otherwise be elected or appointed.

This last-mentioned cause of evil is no doubt a departure from the principle of local popular control and responsibility on which state governments and rural local governments have been based. It is a dereliction which has brought its punishment with it. But the resulting mischiefs have been immensely aggravated by the vices of the legislatures in a few of the states, such as New York and Pennsylvania. As regards the two former causes, they are largely due to what is called the Spoils System, whereby office becomes the reward of party service, and the whole machinery of party government made to serve, as its main object, the getting and keeping of places. Now the Spoils System, with the party machinery which it keeps oiled and greased and always working at high pressure, is far more potent and pernicious in great cities than in country districts. For in great cities we find an ignorant multitude, largely composed of recent immigrants, untrained in self-government; we find a great proportion of the voters paying no direct taxes, and therefore feeling no interest in moderate taxation and economical administration; we find able citizens absorbed in their private businesses, cultivated citizens unusually sensitive to the vulgarities of practical politics, and both sets therefore specially unwilling to sacrifice their time and tastes and comfort in the struggle with sordid wire-pullers and noisy demagogues. In great cities the forces that attack and pervert democratic government are exceptionally numerous, the defensive forces that protect it exceptionally ill-placed for resistance. Satan has turned his heaviest batteries on the weakest part of the ramparts.

Besides these three causes on which the commissioners dwell, and the effects of which are felt in the great cities of other states as well as of New York, there are what may be called mechanical defects in the structure of municipal governments, whose nature may be gathered from the account given in the last chapter. There is a want of methods for fixing public responsibility on the governing persons and bodies. When the mayor jobs his patronage he can indeed no longer, under the new charters, such as that of New York, throw part of the blame on the aldermen or other confirming council, alleging that he would have selected better men could he have hoped that the aldermen would approve his selection. But if he has failed to keep the departments up to their work, he may argue that the city legislature hampered him and would not pass the requisite ordinances. Each house of a two-chambered legislature can excuse itself by pointing to the action of the other, or of its own committees, and among the numerous members of the chambers—or even of one chamber if there be but one—responsibility is so divided as to cease to come forcibly home to anyone. The various boards and officials have generally had little intercommunication;8 and the fact that some were directly elected by the people made these feel themselves independent both of the mayor and the city legislature. The mere multiplication of elective posts distracts the attention of the people, and deprives the voting at the polls of its efficiency as a means of reproof or commendation.9

To trace municipal misgovernment to its sources was comparatively easy. To show how these sources might be dried up was more difficult, though as to some obvious remedies all reformers were agreed. What seemed all but impracticable was to induce the men who had produced these evils, who used them and profited by them, who were so accustomed to them that even the honester sort did not feel their turpitude, to consent to the measures needed for extinguishing their own abused power and illicit gains. It was from the gangs of city politicians and their allies in the state legislatures that reforms had to be sought, and the enactment of their own abolition obtained. In vain would the net be spread in the sight of such birds.

The remedies proposed by the New York commission need not be enumerated, for the birds saw the net and refused to allow the amendments required to be submitted, so nothing was done at the time. Yet the reformers ultimately prevailed, for nearly all of their suggestions have by degrees been in substance adopted. The city was enlarged in 1902 by the inclusion of the great city of Brooklyn and the districts called Queen’s and the Bronx, and Staten Island, so Greater New York now consists of the five boroughs of Manhattan (the island on which New York City proper stands), Brooklyn, Queen’s, Richmond, and Bronx. Each of these boroughts has its own president and local administrative authorities, all being under the general authority of the mayor of the Greater City. Legislative power is divided between the aldermen and the Board of Estimate and Apportionment which consists of the mayor, the comptroller, the president of the board of aldermen, and the presidents of the five boroughs. It is the chief financial authority. The state constitution has been so amended as to limit the legislature’s power of passing special acts relating to cities. State and city elections have been separated. The city’s borrowing powers have been restricted and the functions of the mayor in appointing and removing officials extended. Thus though the new charter is far from perfect, it is admittedly much better than that of 1876.10

The most novel of the proposals made by the commissioners of 1876 and the one which excited most hostile criticism, that of creating a council elected by voters having a tax-paying (or rent-paying) qualification, has never been tried in any great city. It is deemed undemocratic; practical men say there is no use submitting it to a popular vote.11 Nevertheless, there are still some who advocate it, appealing to the example of Australia, where it is said to have worked well.

Among the other reforms in city government which I find canvassed in America are the following:

(a) Civil service reform, i.e., the establishment of examinations as a test for admission to posts under the city, and the bestowal of these posts for a fixed term of years, or generally during good behaviour, instead of leaving the civil servant at the mercy of a partisan chief, who may displace him to make room for a party adherent or personal friend.

(b) The lengthening of the terms of service of the mayor and the heads of departments, so as to give them a more assured position and diminish the frequency of elections.—This has been done to some extent in recent charters.

(c) The vesting of almost autocratic executive power in the mayor and restriction of the city legislature to purely legislative work and the voting of supplies.—This also now finds place in some charters, notably in the new one of New York, and has worked, on the whole, well. It is, of course, a remedy of the “cure or kill” order. If the people are thoroughly roused to choose an able and honest man, the more power he has the better; it is safer in his hands than in those of city councils. If the voters are apathetic and let a bad man slip in, all may be lost till the next election. I do not say “all is lost,” for there have been remarkable instances of men who have been sobered and elevated by power and responsibility. The Greek proverb “office will show the man” was generally taken in an unfavourable sense. The proverb of the steadier headed Germans, “office gives understanding” (Amt gibt Verstand), represents a more hopeful view of human nature, and one not seldom justified in American experience.

(d) The election of a city legislature, or one branch of it, or of a school committee, on a general ticket instead of by wards.—When aldermen or councilmen are chosen by the voters of a small local area, it is assumed, in the United States, that they must be residents within it; thus the field of choice among good citizens generally is limited. It follows also that their first duty is deemed to be to get the most they can for their own ward; they care little for the general interests of the city, and carry on a game of barter in contracts and public improvements with the representatives of other wards. Hence the general ticket system is preferable.

(e) The limitation of taxing powers and borrowing powers by reference to the assessed value of the taxable property within the city.—Restrictions of this nature have been largely applied to cities as well as to counties and other local authorities. The results have been usually good, yet not uniformly so, for evasions may be practised. The New York commission say: “The apparent prohibition, both as to taxation and the percentage of debt, could be readily evaded by raising the assessment. Such restrictions do not attempt to prevent the wastefulness or embezzlement of the public funds otherwise than by limiting the amount of the funds subject to depredation. The effect of such measures would simply be to leave the public necessities without adequate provision.” 12 And Messrs. Allinson and Penrose observe:

Nevertheless, such restrictions are now often found embodied in State constitutions, and have, so far as I could ascertain, generally diminished the evil they are aimed at.

(f) The introduction of methods for referring questions to the direct vote of the citizens in the three forms of initiative, where a prescribed percentage of the voters submit an ordinance for enactment by the citizens, referendum, where the city council is required, on the petition of a prescribed percentage of voters, to refer to the citizens at the polls an ordinance it has passed, and recall, whereby a prescribed percentage can demand the election of a successor to the holder of any elective office whom they seek to remove. —The holder is permitted to be a candidate at such election, and if he obtains the largest number of votes is therewith reelected. By these methods it is hoped to prevent the jobbing of contracts by city legislatures and to secure the good conduct of officials. They are drastic remedies, and their working is being watched with lively interest.13

(g) The supersession of the usual frame of government by a mayor and council by the creation of a small Board of Commissioners elected by ‘a general ticket’ vote over the whole city.—This so-called Galveston or Des Moines Plan has been already mentioned (supra, page 564). It is now (1910) spreading fast over the Union in various forms. It is expected, in its most advanced form, to reduce the power of the machine by nominations through open primaries (see note to Chapter 60 post) and by making the election on ‘general ticket’ instead of by wards, to secure due responsibility by concentrating power in very few hands, to keep officials up to the mark by the threat of a recall vote, to prevent jobs and corruption by letting the people as a whole vote upon the grant of franchises and to secure effective popular control by a referendum on city ordinances. It is the most sweeping of all the schemes of reform hitherto propounded or applied, but has not been long enough in operation for its possible defects to have yet fully revealed themselves.

I must not attempt to discuss the interesting question of the results of entrusting to city governments the supply of water, gas, and electricity, perhaps also street railways, because American cities are accumulating such a mass of experience on the subject that it could not be dealt with save at considerable length, while the wise still differ as to the general conclusions to be formed.14 The objections to placing this function in the hands of such men as rule most municipalities are obvious. One group of these objections will be found illustrated in a later chapter, describing the Gas Ring in Philadelphia. There are, however, some reformers sanguine enough to believe that when city councils obtain functions whose exercise has a strong and obvious interest for the citizens, the latter are roused to a more active and watchful control, and may be counted on to eject corrupt politicians from power. Nor must we forget that the plan of leaving the function to private corporate companies is open to evils scarcely less patent than those which flow from dishonest public management, because these companies when they prosper and grow large bring their wealth to bear upon the municipal authorities, and have even been known to scatter bribes widely among the voters for the sake of retaining or extending their monopoly. Each plan has its dangers. It is not the least among the many mischiefs entailed by the pollution of city governments that citizens who resent the high prices charged and poor supply given by private companies often prefer to bear these hardships and to wink at the impure methods which some companies employ rather than face the risk of throwing to the rings that control the larger municipalities the additional mass of patronage and additional material for jobbery which the business of water and gas supply carries with it.

The question of city government is that which chiefly occupies practical publicists in America, because they have long deemed it the weakest point of the country. That adaptability of the institutions to the people and their conditions, which judicious strangers have been wont to admire in the United States, and that consequent satisfaction of the people with their institutions, which contrasts so agreeably with the discontent of European nations, is wholly absent as regards municipal administration. Wherever there is a large city there are loud complaints, and Americans who deem themselves in other respects a model for the Old World are in this respect anxious to study Old World models, those particularly which the cities of Great Britain present. The best proof of dissatisfaction is to be found in the frequent changes of system and method. What Dante said of his own city may be said of the cities of America: they are like the sick man who finds no rest upon his bed, but seeks to ease his pain by turning from side to side. Every now and then the patient finds some relief in a drastic remedy, such as the enactment of a new charter and the expulsion at an election of a gang of knaves. Presently, however, the weak points of the charter are discovered, the state legislature again begins to interfere by special acts, or a “public service corporation” begins to seduce the virtue of officials; civic zeal grows cold and allows bad men to creep back into the chief posts; Federal issues are allowed to supersede at municipal elections that which ought to be always deemed the real issue, the character and capacity of the candidates for office. All this is discouraging. Yet no one who studies the municipal history of the last decades will doubt that things are better than they were twenty-five years ago. The newer frames of government are an improvement upon the older. Rogues are less audacious. Good citizens are more active. Party spirit is still permitted to dominate and pervert municipal politics, yet the mischief it does is more clearly discerned and the number of those who resist it daily increases. In the increase of that number and the growth of a stronger sense of civic duty rather than in any changes of mechanism, lies the ultimate hope for the reform of city governments.

chapter 52

An American View of Municipal Government in the United States

By the Hon. Seth Low, formerly mayor of New York City

In England there are said to be three kinds of cities: cities by prescription, like London and Exeter, which have been cities from time immemorial; cities that are such because they have been the seat of a bishop; and cities organized under the modern Municipal Corporations Act. In the United States, twenty municipal corporations received charters as cities during the Colonial period. These charters, in order to be valid, had to be confirmed after the Revolution by the legislature of the state in which the city was located. In other words, a city in the United States is the creature of the legislature of the state in which it is. The legislature’s power over the city’s form of government is substantially absolute, except as the legislative power may be limited by the state constitution. As there are forty-eight states in the Union, and as there were, according to the census of 1910, seven hundred and seventy-four cities in the United States with a population of eight thousand or more, it will be readily understood why there is no uniform type of city charter even for the more modern cities. The city of Washington, in the District of Columbia, which belongs to the nation, is subject to the direct legislation of Congress. In this respect it is unique. Its inhabitants enjoy no vote even as to local affairs. It is administered by a Commission of Three, appointed by the president of the United States, subject to confirmation by the Senate, and is probably the only city in the United States without a mayor.

Any European student of politics who wishes to understand the problem of government in the United States, whether of city government or any other form of it, must first of all transfer himself, if he can, to a point of view precisely the opposite of that which is natural to him. This is scarcely, if at all, less true of the English than of the Continental student. In England as upon the Continent, from time immemorial, government has descended from the top down. Until recently, society in Europe has accepted the idea, almost without protest, that there must be governing classes, and that the great majority of men must be governed. The French Revolution doubtless modified this idea everywhere, and especially in France, but even in France public sentiment on this point is a resultant of a conflict of views. In the United States, however, that idea does not obtain at all, and, what is of no less importance, it never has obtained. No distinction is recognized between governing and governed classes, and the problem of government is, in effect, an effort on the part of society as a whole to learn and apply to itself the art of government. Bearing this in mind, it becomes apparent that the immense tide of immigration into the United States is a continually disturbing factor. The immigrants come from many countries, a very large proportion of them being of the classes which, in their old homes, from time out of mind, have been governed. Arriving in America, they shortly become citizens in a society which undertakes to govern itself. However well disposed they may be as a rule, they have not had experience in self-government, nor do they always share the ideas which have expressed themselves in the Constitution of the United States. This foreign element settles largely in the cities of the country. It is estimated that the population of New York City contains approximately eighty per cent of people who either are foreign-born, or are the children of foreign-born parents. Consequently, in a city like New York, the prolem of learning the art of government is handed over to a population that begins, in point of experience, very low down. In many of the cities of the United States, indeed in almost all of them, the population not only is thus largely untrained in the art of self-government, but it is not even homogeneous. So that an American city is confronted not only with the necessity of instructing large and rapidly growing bodies of people in the art of government, but it is compelled at the same time to assimilate strangely different component parts into an American community. It will be apparent to the student that either one of these functions by itself would be difficult enough. When both are found side by side the problem is increasingly difficult as to each. Together they represent a problem such as confronts no city in the United Kingdom, or in Europe.

The American city has had problems to deal with also of a material character, quite different from those which have confronted the cities of the Old World. With the exception of Boston, Philadelphia, Baltimore, New Orleans, and New York, there is no American city of great consequence whose roots go back into the distant past even of America. American cities as a rule have grown with a rapidity to which the Old World presents few parallels. London, in the extent of its growth, but not in the proportions of it; Berlin since 1870, and Rome in the last few years, are perhaps the only places in Europe which have been compelled to deal with this element of rapid growth in anything like a corresponding degree. All of these cities, London, Berlin, and Rome, are the seats of the national government, and receive from that source more or less help and guidance in their development. In all of them an immense nucleus of wealth existed before this great and rapid growth began. The problem in America has been to make a great city in a few years out of nothing. There has been no nucleus of wealth upon which to found the structure which every succeeding year has enlarged. Recourse has been had of necessity, under these conditions, to the freest use of the public credit.

The city of Chicago, for example, with its population of two millions of people, was a small frontier trading post eighty years ago. Within that period everything has been created out of the fields. The houses in which the people live, the waterworks, the paved streets, the sewers, everything which makes up the permanent plant of a city, all have been produced while the city has been growing from year to year at a fabulous rate. Besides these things are to be reckoned the public schools, the public parks, and many municipal monuments of every kind. American cities as a rule have a more abundant supply of water than European cities, and they are usually more enterprising in furnishing themselves with things which in Europe may be called the luxuries of city life, but which, in America, are so common as to be regarded as necessities. Especially is this true of every convenience involving the use of electricity. There are more than half as many telephones, for example, in the city of New York alone, as there are in the whole of the United Kingdom.

The necessity of doing so much so quickly, has worked to the disadvantage of the American city in two ways. First, it has compelled very lavish expenditure under great pressure for quick results. This is precisely the condition under which the best trained businessmen make their greatest mistakes, and are in danger of running into extravagance and wastefulness. Few candid Americans will deny that American cities have suffered much, not alone from extravagance and wastefulness, but also from dishonesty; but in estimating the extent of the reproach, it is proper to take into consideration these general conditions under which the cities have been compelled to work. The second disadvantage under which American cities have laboured arising from this state of things has been a very general inability to provide adequately for current needs, while discounting the future so freely in order to provide their permanent plant. When the great American cities have paid for the permanent plant which they have been accumulating during the last half century, so that the duty which lies before them is chiefly that of caring adequately for the current life of their population, a vast improvement in all these particulars may reasonably be expected. The standard of city paving and of street cleaning in American cities, as a whole, is much higher now than it was when the first edition of this book appeared in 1888. In other words, time is a necessary element in making a great city, as it is in every other great and enduring work. American cities are judged by their size, rather than by the time which has entered into their growth. It cannot be denied that larger results could have been produced with the money expended, if it had always been used with complete honesty and good judgment. But to make an intelligent criticism upon the American city, in its failures upon the material side, these elements of difficulty must be taken into consideration.

Looked at in this light, the marvel would seem to be, not so much that the American cities are justly criticisable for many defects, but rather that results so great have been achieved in so short a time. New York City, for example, is just finishing the last of three suspension bridges, every one of which, in size and capacity, exceeds all other suspension bridges in the world. The city has also built a fourth bridge of the cantilever type, which, in capacity, much exceeds the great Forth Bridge, though the span is less long. New York has also developed in its corporate capacity, in cooperation with and under the direction of organizations of private citizens, a natural history museum that is second to no other, an art museum that is fairly counted among the greatest of art museums, a botanical garden that is rapidly forging towards the first rank, a zoological garden that in size and equipment excels any other, and an aquarium that is also worthy of leading rank. Each of these institutions is free. They are visited annually by millions of people; are all related to the public school system of the city, and stand as high for scientific usefulness as for public service. The city of Boston is steadily carrying towards completion one of the most remarkable systems of municipal parks and boulevards to be found in any country; and that is a poor American city, indeed, that does not tax itself freely to provide pleasure grounds for its people. Probably Berlin alone, among the great cities of Europe, is as well lighted as New York; and some of the cities of the Middle and Far West are proportionately better lighted than New York. The city of St. Louis, a city of 687,000 people, conducted successfully, a few years ago, a World’s Fair on a scale as great as has ever been attempted. These are but illustrations of what American cities have accomplished in many important fields.

One particular in which the American city may be thought to have come short of what might have been expected, may be described in general terms as a lack of foresight. It would have been comparatively easy to have preserved in all of them small open parks, and generally to have made them more beautiful, if there had been a greater appreciation of the need for these things and of their future growth. The Western cities probably have erred in this regard less than those upon the Atlantic coast. But while it is greatly to be regretted that this large foresight has not been displayed, it is, after all, only repeating in America what has taken place in Europe. The improvement of cities seems everywhere to be made by tearing down and replacing at great cost, rather than by a far-sighted provision for the demands and opportunities of the future. This unfortunate result in America has flowed, in part from the frequent tendency of population to grow in precisely the direction which was not anticipated. An interesting illustration of this last factor is to be found in the city of Washington. The Capitol was made to face towards the east, under the impression that population would settle in that direction. As matter of fact, the city has grown towards the west, so that the Capitol stands with its back to the city and faces a district that is scarcely built upon at all.

All the troubles which have marked the development of cities in the United States, however, are not due to these causes. Cities in the United States, as forms of government, are of comparatively recent origin. The city of Boston, for example, in the state of Massachusetts, although the settlement was founded more than two hundred and fifty years ago, received its charter as a city so recently as 1822. The city of Brooklyn received its charter from the state of New York in 1835. In other words, the transition from village and town government into government by cities, has simply followed the transition of small places into large communities. This suggests another distinction between the cities of the United States and those of Great Britain. The great cities of England and of Europe, with few exceptions, have their roots in the distant past. Many of their privileges and chartered rights were wrested from the Crown in feudal times. Some of these privileges have been retained, and contribute still to the income, the pride, and the influence of the municipality. The charter of an American city represents no element of prestige or inspiration. It is only the legal instrument which gives the community authority to act as a corporation, and which defines the duties of its officers. The motive for passing from town government to city government, in general, has been the same everywhere—to acquire a certain readiness of action, and to make more available the credit of the community in order to provide adequately for its own growth. The town meeting, in which every citizen takes part, serves its purpose admirably in communities up to a certain size, or for the conducting of public work on not too large a scale. But the necessity for the easy use of the public credit in providing for the needs of growth has compelled rapidly growing communities, in all the states, to seek the powers of a corporation as administered through a city government.

It will be perceived that the great growth of cities in the United States has thus resulted in the rapid transformation of a rural population into a population largely dwelling in cities; and this rapidly transformed urban population has been called upon, without any qualifying experience, to solve the difficult problem of city government. For many years, Americans applied to cities the theories which they had successfully embodied in the government of their states. It is only as some of these theories have broken down, when applied to cities, that Americans have begun to realize that they have on their hands a problem, new for them, which must be solved, so to speak, by rules of its own. Superficial observers may think that they have said all that needs to be said, when they have asked, “How can anyone expect to get good city government with manhood suffrage?” Manhood suffrage is an element in the problem, certainly; and the problem must be solved with manhood suffrage as a factor. But manhood suffrage, even in cities, is by no means a source of difficulty only. Every European city, comparable in size to any one of a half dozen American cities, swarms with soldiers. Outside of London this is less true of England than of the Continent. The population of American cities is much more heterogeneous than the population of these European cities; yet the American cities are free from soldiers, and although they have a smaller police force than corresponding European cities, public order is just as well preserved. The fact is that in American cities the people keep themselves in order, because they feel that the city is theirs. Manhood suffrage in American cities, as everywhere else in the United States, wakes the people up and develops a population of great average capacity.

Why is it, then, that Americans are less proud of their institutions, as illustrated in city government, than anywhere else?

In other words, why is it that American cities, despite their good points, have so much difficulty in securing a city government that needs no apology? Some of the reasons, at least, may be indicated. Growing, as they have done, out of villages and towns, and compelled to go to the legislature of the state for their charters, American cities have seldom received in the first instance such adequate grants of power over their local affairs as to enable them to grow without constant resort to the legislature for additional powers. The states, also, have used the city for many purposes as the agent of the state. Out of these two circumstances has grown the habit, in almost every state, of interfering through the legislature with the details of city expenditure and city administration. The story of municipal reform in the United States is everywhere a story of the effort, by constitutional amendment, to limit the power of the state legislature to interfere with the details of city government.

The Constitution of the United States gives to the president great administrative power, including great power of appointment. The constitutions of the states, on the other hand—certainly of all the original states—looked to division of power as a source of safety; so that, instead of electing a governor with power to appoint the administrative officers of the state, as the president does for the United States, the principal administrative officers of the state, as well as the governor, are all elected by the people. Unhappily, this latter policy was almost uniformly followed in the organization of cities. Elective officers were made numerous, and the terms of office short. As a result, efficiency was impossible, and anything like effective responsibility to the voters could not be secured. It is taken, and will still take, a long time for Americans to realize that responsibility to the people is best maintained when elective officers are few in number, but have ample authority; and that efficiency is greatest when elected officials have adequate power to do right, even if they sometimes do wrong. The progress making in the direction of reducing the number of elected city officials is well illustrated by Boston’s new charter, granted in 1909. This charter reduces the number of elected officials, in Boston, from ninety-seven to ten.

City inefficiency was greatly increased, also, by the demoralizing maxim, which came into the political life of the country in 1834, “To the Victors belong the Spoils.” Under the influence of that battle cry, which was adopted by all political parties, even the subordinate civil service of the cities became as unstable as the sea.

In the matter of preventing interference by the state in the local affairs of the city, one state after another has passed constitutional amendments aimed at that evil. In the state of New York, no law affecting a city can be passed until it has first been submitted to the local authorities: in the larger cities to the mayor, and in the smaller cities to the mayor and common council. Public hearings are given in every city before action can be taken by the local authorities, and the bill is then returned, with or without the approval of the city, to the branch of the legislature in which the bill originated. The legislature has the authority to repass the bill, notwithstanding the protest of the city. The bill, if accepted by the city, or if passed by the legislature a second time, then goes to the governor for approval or disapproval, as in the case of any other state law. If a bill is passed for the first time by the legislature, so near the end of its session that the time given to the city for its consideration does not admit of its repassage by the legislature in the event of its nonacceptance by the city, then the nonacceptance by the city is fatal to the bill. In other words, by reason of this amendment to the constitution of the state of New York, adopted in 1894, no action can be taken by the legislature of the state without notice to the city. In almost every case the attitude of the city is final. It is only in matters of the first consequence that the judgment of the city is ever overruled by the legislature.

When this chapter was revised in 1906, the states of Missouri, California, Washington, Minnesota, and Colorado had adopted constitutions granting to the cities of those states, with various restrictions, the authority to make their own charters, which, when made, are not easily amendable by the legislature. City-made charters in California must be confirmed by the legislature; but the legislature, thus far, has always confirmed the city’s action. Since 1906, the states of Oregon, Oklahoma, and Michigan have followed in the same path. In other words, the movement to prevent the interference by legislatures in the local affairs of cities throughout the states of the Union has already acquired great momentum, and it is not likely to be many years before this obstacle to good city administration has been overcome throughout the Union.

In the matter of securing more efficient administration of cities, it is evident that permanency of tenure of the subordinate administrative officials is a great factor in the situation. The definite adoption of the policy of civil service reform by the United States, in 1883, has been followed very generally by the states of the Union in relation to the civil service not only of the states, but also of the cities of the states. In the state of New York this policy has been embodied in the constitution of the state, and applies not only to the state administration, but to the administration of all the cities and local subdivisions of the state. Much remains to be done to bring about an ideal condition throughout the Union, but the right path has been entered upon, and it is likely to be followed to the end.

Responsibility to the people for administration in cities has been sought by two main methods. In the cities of New York and Philadelphia, and now in Boston, by its new charter, the mayor of the city is given the absolute power of appointment and removal of the heads of the administrative departments. The recent charter of the city of Boston provides a new limitation upon the power of appointment, from which, theoretically, much is to be hoped. It will be interesting to observe how it works in practice. The charter requires that the mayor, in filling responsible offices, shall appoint “recognized experts in such work as may devolve upon the incumbents of said offices, or persons specially fitted by education, training, and experience to perform the same.” These officers are to be “appointed without regard to party affiliation or residence at the time of appointment”; and the mayor’s appointment does not become operative, unless at least a majority of the state Civil Service Commission certify, within thirty days, that a careful inquiry into the qualifications of the appointee satisfies them that the appointee “is qualified by education, training, and experience” for the office to which he has been appointed. It will be observed that this provision gives to the state a certain administrative control over the appointments of the mayor of Boston; but administrative control by the state is far less objectionable than legislative control; for administrative control by the state is likely to be used, as it is in England, to help and not to embarrass the city. It is, evidently, clearly within the right of the state to insist, as a matter of uniform policy, that all appointments to office, within the state, shall involve the element of fitness as determined by a standard fixed by the state itself. It is a commentary on city administration, as it has been illustrated in Boston, that the state of Massachusetts should find it necessary to pass upon the special fitness for the work to be done, of an appointed city official. But no one familiar with the government of large cities throughout the United States imagines for a moment that Boston has been a sinner in this particular above all other cities. The special importance of this charter provision lies, on the contrary, in the fact that it is an intelligent effort to find a remedy for a widespread evil. The working of this clause, therefore, will be of immense interest, not only to the city of Boston but to all the cities of the Union.

The conclusions of the Boston Finance Commission, which was appointed originally by the mayor, and subsequently given special authority by the state of Massachusetts, and which proposed the new charter, are of interest as indicating the trend of modern American opinion. The Commission says:

The permanent Finance Commission referred to is a body of five, to be appointed by the governor of the state, with power “to investigate, publish, and advise.” This, also, is a new departure in American practice, and one that is likely to be widely followed, if it works well.

The other direction in which greater efficiency in city administration has been sought, is that which is known as the “Commission” or “Galveston” plan. In 1900 the city of Galveston, in Texas, was visited by a great tidal wave. The damage done to the city was so great as almost to threaten it with obliteration. In the presence of this emergency, the people of Galveston besought the legislature to amend the city charter, so as to give the city power to deal with the situation. The governing body of the city was reduced to a board of five members, presided over by an official known as mayor-president. This board has full legislative and administrative power for the city. It creates the city departments to be administered, and, by a majority vote, divides the administration of the departments among the members of the board, including the mayor. The mayor, in general, has no greater authority than any of his associates, although he is, in a sense, the general manager. The men first chosen in Galveston to administer this new system were thoroughly competent and upright men. They not only redeemed Galveston from its disaster, but set the city upon a plane which it had never reached before. The result has been that this system of city government has been widely adopted not only in Texas, but in other states of the Union. Massachusetts and Idaho, by special charter, have granted this form of government to certain of their cities, and the states of Iowa, Kansas, North Dakota, South Dakota, and Mississippi have passed laws enabling their cities, if they choose, to have charters embodying the general features of this plan. In cities of a moderate size the plan has worked sufficiently well, where it has been tried, to encourage its adoption by a continually increasing number of cities. The Report of the Secretary of the National Municipal League, made at the annual meeting of the League in 1909, calls attention to the fact that, within the previous two years, 138 cities in the Union have been seriously considering the question of charter making and charter revision. This statement shows how keenly alive the people of the United States are to the importance of having for cities charters which give promise of efficiency. But the fact is noteworthy that the largest cities have chosen to seek administrative responsibility by centring the power to appoint and remove administrative officials in the hands of the mayor, while it is only the cities of moderate size, say, of 100,000 or fewer, inhabitants, that have chosen the Galveston type. Galveston itself has about 37,000 inhabitants. The power of political machinery increases with the size of the population. The largest cities have chosen to concentrate power in the hands of the mayor, because, in such cities, the leader of the dominant political party, usually called a “boss,” becomes so strong as often to dominate even the mayor of the city, who may belong to his party. The “boss,” as such, exerts power without responsibility; and the only way to dislodge him from control of the city, through the machinery of an election, is to give to the mayor, by law, the power which the “boss” exercises without legal authority, so that by dislodging a mayor who is subservient to a “boss,” the people can take the city government, on its administrative side, out of the hands of the “boss.” This system was first tried in the city of Brooklyn, New York, which was then an independent city, in 1882. Brooklyn is now a borough of the city of New York, and the Brooklyn system, in this respect, has been accepted by the larger city. It has been substantially adopted by Philadelphia; and, again, by the city of Boston, in the newest charter granted to any of the large cities of the country.

This discussion raises the question, how it is, that, in the United States, anyone not legally related to the government of a city can acquire such power as is exercised in all the large American cities by the so-called “boss” of the dominant party. The answer to this question is partly historical and partly philosophical. It is historical in the sense that the American people are strong partisans, and vote with their party, ordinarily, on local issues, no less than on national issues. In the state of New York, as early as 1815, when the local officials, including the mayor of New York, were appointed by a state Board of Appointment, so important a man as DeWitt Clinton, a man who had been senator of the United States, and who, later, as governor of the state of New York, constructed the Erie Canal, was removed from the office of mayor of New York by a state Board of Appointment that differed from him on national politics, in the execution of a party programme. This illustrates the pregnant fact that, even at that early day, when neither manhood suffrage nor immigration entered into the problem at all, the habit existed, in New York State at any rate, on the part of those controlling the national parties, of using the cities as pawns in the game of national politics. It is important to notice that this habit was not created by the extension of the suffrage, nor by the growth of immigration. On the contrary, the curious and interesting fact is that the habit has survived the extension of the suffrage. The same attitude of mind on the part of the national political parties towards the cities continues largely unchecked to the present day. It is the strong partisanship of the American people which has made this possible; and it is only within the last thirty years, since the consciousness of the city problem, as a problem by itself, has been pressed home on the American mind and conscience, that any pause has been given to this sort of thing. Now, the demand for home rule by the cities is so intelligent and so insistent that the political parties find it good judgment, very often, to recognize this sentiment. The habit persists, nevertheless, with the great majority of Americans, of voting with their national party, even in local elections. This is the historical condition which creates the “boss.”

The philosophical explanation of the “boss” is to be found in the fact, that, where the voting population is large, it requires efficient organization to get out the vote. In the city of New York, for example, more than 600,000 people voted in the election of 1909. Simply to send one letter to all of the voters would cost more than $12,000. To acquaint the voters with the issues of the campaign, to interest them to go to the polls, and to see that their vote is cast, involves organization of a high order, and this is costly; and, in order to be efficient, the organization must also be manned by men thoroughly competent. This means that the organization needed for the service of a party not infrequently becomes so strong as to dominate the party; so that the organization, instead of being the servant of the party, becomes its master. The organization itself, to be most efficient, must be under permanent and capable control. The result is, first, the development of the professional politican who lives by politics; and, second, in cities, the leadership of this band by some one man who often becomes in the end its autocratic ruler.

This tendency is felt everywhere throughout the United States, and for the same reasons. It is probably true, that, in every state organization, the political machinery is subject to the same tendencies as have revealed themselves in cities. But the political “boss” of the city is more frequently an arbitrary potentate than the political “boss” of a state; because, in a state, the population is not so much concentrated, and there is a wider range of interests to be considered. Proportionately, moreover, the city budget is much greater than the state budget. The budget of the city of New York, for example, in 1908, was $143,000,000. The budget of the state of New York in the same year was $34,000,000. In addition to the budget, the city of New York issued, for municipal purposes, in the year 1908, $82,000,000 of bonds; the state of New York $15,000,000 of bonds. It is apparent, therefore, that the pecuniary motive for desiring to control city expenditure, which appeals to the professional politician, operates more strongly in cities than in the states. All of these considerations tend to make the political organization of the dominant party, in a city, more and more of a machine; so that the problem in cities, where the political majority is one-sided, is how to get good government despite the machine of the dominant party, rather than how to get it through that party. The same tendencies, of course, work in the minority party as well as in the majority party; but the habit of Americans of voting on local questions on the lines of national party makes the majority party, for the most part, the one to be dreaded. The danger from the minority party machine, in a city, comes when its leaders make terms with the leaders of the majority party for mutual advantage. The idea of “a community of interest” is not confined to the railroads of the United States, but finds its place in politics as well, and especially in municipal politics, for the reasons that have been given.

Of course this difficulty has been recognized ever since Americans began to have experience with large cities; and the effort has been constant to minimize it. There has grown up in the cities of the country a very considerable body of voters who will not vote any longer on local issues simply on national lines. They vote gladly with their national party, if they think that their national party is right on the local question at issue; but this body of independents does not hesitate to vote against the nominee of their party if they think the other party better deserves their support. This spirit of local independence in voting is the spirit which ultimately will secure good government for the American cities. The changes of charter which have been advocated have their principal value in the encouragement which they give to this spirit of independent voting, by making success at an election more fruitful of good results. It is evidently idle to set up machinery that is well calculated to give home rule, if the people of the city itself are determined to follow the old habit of permitting the city to be used as a pawn in the game of national politics. Deep-seated as this habit is in the American people, it has yielded and will yield to an effective opportunity, once gained, by the people of a city to control their own local affairs.

In the last ten years, in many of the smaller cities of the country, the effort has been made to weaken the power of the municipal machine by the system of direct primaries, and to increase the power of the people of the city over their own affairs by the adoption of “the initiative,” “the referendum,” and “the recall.” The system of “direct primaries,” so called, has been applied in a number of states, not only in cities, but as of universal application to all nominations made in the state. Ordinarily, in American communities, nominations are made by party conventions, and the delegates who form these conventions are chosen from political divisions of various kinds. It is believed by many Americans that political leaders get their abnormal power by the control of this party machinery, as a result of which they can generally control party nominations. The direct primary plan is an effort to compel such leaders to get the popular endorsement of the voters of their party before nominations can be known as party nominations. Under the direct primary system the people of the same party vote at the primaries directly for the persons to be chosen as the candidates of the party, the primary thus becoming a sort of preliminary election. It is too soon to say positively whether this system, in its general application, will lead to a betterment of conditions at large; but there is some reason to hope that it may do so in small districts. The difficulty is that the system of direct nominations itself involves a great deal of machinery; and it is not at all clear that the professional political element will not learn how to dominate this machinery as well as that which now exists. Possibly, in cities, nomination by petition may take the place of both the convention and the direct primary systems. It is indicative of popular opinion, at the moment, that the question was submitted to the people of Boston in November 1909, whether nominations for mayor and other local officers should be made by the convention system or by petition. By a majority of 3,000, out of a vote of 74,000, the people of Boston voted in favour of nomination of local officers by petition, without the use of any party machinery whatever. It will be exceedingly interesting to observe the outcome of this experiment in a city like Boston; for it is not only one of the larger cities of the country, but it is also an old city. If the plan succeeds in Boston, it is likely to be adopted widely in other cities. If it should not work well there, it is likely to put a check to further developments in this direction on the part of the large cities of the country. The writer is inclined to think, that, in order to work well, the plan of nominating in cities by petition must be supplemented by two other provisions: first, a majority vote must be required for election; and, second, in the event of a second ballot being necessary, the candidates to be voted for the second time should be the two who receive the highest and the next to the highest number of votes at the first voting. When an election is possible by a plurality vote, it is too easy for the machine to divide its enemies to their destruction.

In the smaller cities there appears to be no reason why the direct primary system should not work well. The difficulties of the system appear when the vote to be got out becomes so large that extensive machinery is required to get the vote out for the primary election, precisely as such machinery is required to get the vote out for the official election. On the other hand, it is certainly true, that, owing to the habit of the American people of voting with their national party, the nomination by the dominant party in probably nine-tenths of the constituencies of the United States, whether you speak of a state, or of a city, or of a district within any state or city, is equivalent to an election. There appears to be every reason, therefore, why the people should be permitted to make their wishes effectually known at the time when the nomination is made. The practical question is, whether the method of direct nomination will do this any more effectively than the method of nomination by convention. It will not be surprising if the line comes to be drawn, between the two methods, somewhat by the size of the vote to be cast.

In some cities of California, the largest of which to adopt the plan is Los Angeles, with a population of over 300,000, the system of “recall” has been adopted; which signifies, ordinarily, that upon the filing of a petition, asking for the recall of any official before the expiration of his term, a special election shall be held to determine whether or not the official shall be permitted to serve out his term. At such special election the official concerned may be a candidate for reelection or not, at his pleasure. The most important instance in which a recall has been resorted to was in the city of Los Angeles, where a mayor whose administration was unsatisfactory, was subjected to the “recall.” The mayor declined to appeal to the verdict of the people; and accordingly another man was elected to serve out the remainder of his term. A modification of this system is embodied in the new charter of Boston. The mayor is elected for four years; but at the regular stated election during his second year, the question is submitted to the voters of the city, “Shall there be an election for mayor at the next municipal election?” If a majority of the voters vote in the affirmative, a new election ensues. On the other hand, a mayor has the right, if he wishes, to withdraw from the office, at his own pleasure, at the end of the second year. All of these movements are interesting, because they show how steadily the people of the cities of the United States are striving, first, to acquire the necessary power for complete local self-government; and, next, to make that local government completely responsive to the popular will.

The “initiative” and the “referendum,” in their relation to the cities of the United States, are not different in substance from the “initiative” and the “referendum” as practised in Switzerland. It has been claimed that, in the matter of franchises, for example, the “referendum” would be a great protection against the abuse of power to grant franchises. In many places it doubtless is; but there is at least one case upon record, according to Judge Lindsey, of Denver, Colorado, in which the submission of a franchise to the vote of the people of Denver resulted in debauching the electorate of a whole city on a scale never known before. Private persons who were interested in securing the franchise were entirely ready to pay money to get it, even in such a way as that. On the other hand, Kansas City, through the “referendum,” has recently defeated a franchise which was recommended by its Common Council.

This leads to the consideration of the control of franchises in the public interest, and of their relation to city governments. Only so recently as when this chapter was revised, in 1906, the tendency to adopt both municipal ownership and operation of franchises, as a cure for the unregulated granting of franchises to private corporations, seemed likely to be very widely adopted. The tendency towards municipal ownership has happily strengthened in the interval; but the indications today are that the tendency towards municipal operation of franchises is less strong now than then. This is largely due to the effect of the Report upon Municipal Ownership and Operation, prepared in 1907, under the auspices of the National Civic Federation. The commission which prepared this report was thoroughly representative, not only of those who believed in municipal ownership and operation, but also of those who were opposed to this plan. It was equally representative, both of capitalists and of organized labour. The tendency of organized labour to favour municipal operation as well as municipal ownership, has been greatly weakened by that report. Many of the leaders of organized labour in the United States feel that they can obtain better terms from private corporations operating such franchises than they can from the government. The American does not enjoy government service, per se, as much as he enjoys the independence of a private occupation; and organized labour recognizes that the conditions affecting governmental action are less friendly to its ambitions than those which apply to private corporations. The salaries of government employees, for example, are fixed by law, and only so much money is available for the payment of salaries. Many of the leaders of organized labour feel that, in the long run, labour can get a larger share of the earnings, under private control, than under governmental control. This is one of the reasons affecting the change in public sentiment; but, whether this explanation of the fact be complete or not, the change in sentiment is very real. In the meanwhile, in the state of New York, a method has been instituted for controlling the operations of public service corporations which thus far has worked exceedingly well. Two public service commissioners have been created by the legislature, with large powers, one for New York City, and one for the rest of the state. Such corporations are brought under official supervision in ways that protect the public interests very much more completely than the public interests were ever protected before in the state of New York. This development, also, has weakened the tendency towards municipal operation of public franchises, because it decreases the abuses under which the public used to suffer through private administration of public franchises. The feeling is becoming very general throughout the cities of the United States that local franchises should not be given in perpetuity; and that the public, as well as the grantees, should profit from the grant. By constitutional restrictions upon the right to grant franchises, by such methods as have been described as prevailing in the state of New York, and by the referendum, the cities of the country are endeavouring to secure a larger share of the benefit than formerly accrued to the community from the operation of franchises in rapidly growing centres. It is not too much to say that the old era in this respect is at an end. Some improper grants may yet be made here and there; but the conviction is widespread that franchises are a public asset, and the public is determined to secure its share of the profits accruing from their use.

In the last revision of this chapter, it was said that the only organic problem in connection with the charters of cities which apparently remains as far from solution as ever, is that which concerns the legislative branch of the city government. That statement is not quite so true today as it was then. The difficulty never has been in devising a local legislature that theoretically would be satisfactory. The difficulty always has been to secure the election of suitable persons to the city legislature. The cities which have chosen the Galveston or commission plan of goverment claim to have made great advances in this particular by reducing the number of persons to be elected to a small body elected from the city at large, and by giving to them executive as well as legislative powers, such as are enjoyed by a board of directors in a business corporation. This, it is claimed, has enabled them to secure a better type of men in the city government. As was pointed out in this chapter, when last revised, the only large city in the United States which has importantly improved the character of its aldermen as a whole is the city of Chicago. This fact remains true to the present time. Mr. Horace E. Deming, in his valuable book on “The Government of American Cities,” published in 1909, to which the writer is indebted for many of the details which have enabled him to bring his information down to date, makes the interesting suggestion, that the reason why Chicago has succeeded in doing this, when no other large city in the country has done it, is because, in the case of Chicago, the people had to do it, in order to get anything done at all. Mr. Deming points out that a constitutional amendment had deprived the legislature of Illinois of all power of legislating for the city of Chicago. The people of Chicago, therefore, realized, that, in order to get things done in the city of Chicago, they must get them done by their local legislature. Mr. Deming’s claim is, that, when the people of the city of Chicago found that they had no other alternative, they devoted themselves intelligently and successfully to the problem of improving the personnel of their local legislature. He claims that the same result would follow in any American city under corresponding conditions. There is much to be said for this point of view.

The movement in favour of requiring uniform accounting from cities, alluded to in the last edition, continues to make progress. Three years ago, Ohio was the only state which had adopted this requirement. Since then, the states of Massachusetts, New York, Indiana, West Virginia, Colorado, and Wyoming have moved in this direction, wholly or in part, and at least three other states have it under consideration.

This outline sufficiently emphasizes present marked tendencies in municipal government, which show their effect in legislation. It may truthfully be said that the general standard of local administration is higher today, in most cities, than it was twenty years ago. This is undoubtedly so in the city of New York; and, so far as the observation of one man can go, it is generally true elsewhere. But there has been, within the last twenty years, a change in the form which municipal corruption has taken that amounts almost to a revolution. In the earlier days, officials who were dishonest stole openly from the public treasury; but, beginning with the overthrow of Tweed in the city of New York in 1871, that was seen to be a method so hazardous as to have fewer and fewer followers. The more modern method was never more succinctly stated than by a leader of Tammany Hall in the heyday of his power in the city of New York, when he publicly avowed before a legislative committee, that “he was in politics for his own pocket all the time.” By this he meant that, indirectly, he made his political power a source of personal advantage to himself all the time. Those who wanted franchises, for example, must make their peace with “the boss” before they could have them. Those who wanted contracts must do the same thing. Those who wanted appointments or nominations must do likewise. The system of “graft,” as it is now popularly called, has permeated the whole political organism. Only recently, a book has been written about another prominent member of Tammany Hall, in which that member argues openly, that there is such a thing as “honest graft”; that is to say, that it is entirely legitimate for men, having political power, to use it for their personal advantage, provided they do it in such a way as not to expose themselves to the criminal law. This seems to have been the idea of not a few men until recently connected with the large life insurance companies of the United States; and it is hard to say whether it has spread from such bodies as Tammany Hall into private business, or the reverse. The writer inclines to the former view; for it is manifestly impossible for a city to sustain, year after year, an organization like Tammany Hall, which avows such principles, without degrading the moral sense of the citizens in all walks of life. In both cases, it is caused in part, without doubt, by the unexampled prosperity through which the country has been passing during the last few years. No demoralizing influence which unchecked prosperity can exert was lacking in the United States from 1898 until 1907. The encouraging fact is, that when this sort of dishonesty is compelled to face the light of day, whether in public or in private life, it is openly and unhesitatingly condemned by the public conscience. Tammany Hall has been defeated twice, not to say three times, within the last fifteen years; a fate that befell it substantially only once in the previous sixty years.

In a country so large as the United States, it is impossible to generalize as to all the cities in the country; and yet it is doubtless true, that, in the city of New York, tendencies that exist everywhere are to be found in their most extreme development. It may happily be said today, as was said when this chapter was first written, that those who are students of the problems of city government in the United States are by no means discouraged. They find, indeed, in the interval under review, much more ground for encouragement than for loss of courage. It is true today, as it was true then, that the cities of the United States are the least successful parts of American administration; but it is still truer today than it was twenty years ago, that, under conditions of unexampled difficulty, such as are outlined in this chapter, they have not only made important progress, but they have also shown a capacity constantly to improve.

The shortcomings of the American city have been admitted, and the effort has been made to show the peculiar difficulties with which such a city has to deal. It is much to be able to say that, despite all of these difficulties, the average American city is not going from bad to worse. Life and property are more secure in almost all of them than they used to be. Certainly there has been no decrease of security such as might reasonably have been expected to result from increased size, and from an increasing diversity of population. Forty years ago it was impossible to have a fair election in New York or Brooklyn. Today, under the present system of registry laws, every election is held with substantial fairness, though the most recent election has shown the necessity for a change in the form of the ballot. The health of our cities does not deteriorate, but on the average improves. So that in large and fundamental matters, the progress, if slow, is steady in the direction of better things. It is not strange that a people at first almost wholly rural, conducting an experiment in city government for which there is absolutely no precedent, under conditions of exceptional difficulty, should have to stumble towards correct and successful methods through experiences that are both costly and distressing. There is no other road towards improvement in the coming time. But it is probable that in another decade Americans will look back on some of the scandals of the present epoch in city government, with as much surprise as they now regard the effort to control fires by the volunteer fire department, which was insisted upon, even in the city of New York, until within fifty years. As American cities grow in stability and provide themselves with the necessary working plant, they approximate more and more in physical conditions to those which prevail in most European cities.

It may justly be said, therefore, that the American city, if open to serious blame, is also deserving of much praise. Everyone understands that universal suffrage has its drawbacks, and in cities these defects become especially evident. It would be uncandid to deny that many of the problems of American cities spring from this factor, especially because the voting population is continually swollen by foreign immigrants whom time alone can educate into an intelligent harmony with the American system. In this Americanizing of the large immigration into the United States, the American cities, through their public-school systems, are doing their full share and are doing it rapidly and well. Zangwill likens the United States to a melting pot. But because there is scum upon the surface of a boiling liquid, it does not follow that the material, nor the process to which it is subjected, is itself bad. Universal suffrage, as it exists in the United States, is not only a great element of safety in the present day and generation, but is perhaps the mightiest educational force to which the masses of men ever have been exposed. In a country where wealth has no hereditary sense of obligation to its neighbours, it is hard to conceive what would be the condition of society if universal suffrage did not compel everyone having property to consider, to some extent at least, the well-being of the whole community.

It is probable that no other system of government would have been able to cope any more successfully, on the whole, with the actual conditions that American cities have been compelled to face. It may be claimed for American institutions even in cities, that they lend themselves with wonderfully little friction to growth and development and to the peaceful assimilation of new and strange populations. Whatever defects have marked the progress of such cities, no one acquainted with their history will deny that since their problem assumed its present aspect, progress has been made, and substantial progress, from decade to decade. The problem will never be anything but a most difficult one, but with all its difficulties there is every reason to be hopeful.

[1] Since this book was first published (in 1888) much excellent work has been done on state history all over the country, and state constitutions have received much study.

[2] Arizona and New Mexico.

[3] Census of 1900.

[4] Delaware and Maryland were slave states, but did not secede, and are in some respects to be classed rather with the Middle than with the Southern group, as indeed are West Virginia, Missouri, and Oklahoma (this last really Western in character), perhaps even Tennessee and Kentucky.

[5] Ohio has become, and Indiana is becoming, rather Middle than Western, and the former at least cannot now be classed among Western states.

[6] Except with consent of Congress.

[7] Ibid.

[8] The case of Kansas immediately before the War of Secession, and the cases of the rebel states, which were not readmitted after the war till they had accepted the constitutional amendments forbidding slavery and protecting the freedmen, are quite exceptional cases.

As to any special conditions imposed by Congress, see Chapter 37 post.

[9] Congress has power to pass a uniform rule of naturalization (Constitution, art. I, § 8).

Under the present naturalization laws a foreigner must have resided in the United States for five years, and for one year in the state or Territory where he seeks admission to United States citizenship, and must declare two years before he is admitted that he renounces allegiance to any foreign prince or state. Before being admitted he must have taken an oath of renunciation. Naturalization makes him a citizen not only of the United States, but of the state or Territory where he is admitted, but does not necessarily confer the electoral franchise, for that depends on state laws.

In more than a third of the states the electoral franchise is now enjoyed by persons not naturalized as United States citizens.

[10] “The line of distinction between the privileges and immunities of citizens of the United States, and those of citizens of the several States, must be traced along the boundary of their respective spheres of action, and the two classes must be as different in their nature as are the functions of their respective governments. A citizen of the United States as such has a right to participate in foreign and inter-state commerce, to have the benefit of the postal laws, to make use in common with others of the navigable waters of the United States, and to pass from State to State, and into foreign countries, because over all these subjects the jurisdiction of the United States extends, and they are covered by its laws. The privileges suggest the immunities. Wherever it is the duty of the United States to give protection to a citizen against any harm, inconvenience, or deprivation, the citizen is entitled to an immunity which pertains to Federal citizenship. One very plain immunity is exemption from any tax, burden, or imposition under State laws as a condition to the enjoyment of any right or privilege under the laws of the United States. . . . Whatever one may claim as of right under the Constitution and laws of the United States by virtue of his citizenship, is a privilege of a citizen of the United States. Whatever the Constitution and laws of the United States entitle him to exemption from, he may claim an exemption in respect to. And such a right or privilege is abridged whenever the State law interferes with any legitimate operation of Federal authority which concerns his interest, whether it be an authority actively exerted, or resting only in the express or implied command or assurance of the Federal Constitution or law. But the United States can neither grant nor secure to its citizens rights or privileges which are not expressly or by reasonable implication placed under its jurisdiction, and all not so placed are left to the exclusive protection of the States.” —Cooley, Principles, pp. 245–47.

[11] As the colonies had associated themselves into a league, at the very time at which they revolted from the British Crown, and as their foreign relations were always managed by the authority and organs of this league, no one of them ever acted in international affairs as a free and independent sovereign state. Abraham Lincoln was in this sense justified in saying that the Union was older than the states, and had created them as states. But what are we to say of North Carolina and Rhode Island, after the acceptance of the Constitution of 1787–89 by the other eleven states? They were out of the old Confederation, for it had expired. They were not in the new Union, for they refused during many months to enter it. What else can they have been during those months except sovereign commonwealths?

[12] States’ rights was a watchword in the South for many years. In 1851 there was a student at Harvard College from South Carolina who bore the name of States Rights Gist, baptized, so to speak, into Calhounism. He rose to be a brigadier general in the Confederate army, and fell in the Civil War.

[13] A further confusion arises from the fact that men are apt in talking of sovereignty to mix up (as the Benthamite school did unfortunately) legal supremacy with practical predominance, sovereignty de jure with sovereignty de facto. They ought to go together, and law seeks to make them go together. But it may happen that the person or body in whom law vests supreme authority is unable to enforce that authority: so the legal sovereign and the actual sovereign—that is to say, the force which will prevail in physical conflict—are different. There is always a strongest force; but the force recognized by law may not be really the strongest; and of several forces it may be impossible to tell, till they have come into actual physical conflict, which is the strongest. This subject has been discussed in an essay on sovereignty in the author’s Studies in History and Jurisprudence.

[14] See Chapter 22 ante.

[1] The oldest truly political constitution in America is the instrument called the Fundamental Orders of Connecticut, framed by the inhabitants of Windsor, Hartford, and Wethersfield in 1638, memorable year, when the ecclesiastical revolt of Scotland saved the liberties of England. The government of Connecticut was afterwards regularized by Charles II’s charter of 1662 to “the Governor and Company of the English colony of Connecticut.” The agreement drawn up in the cabin of the Mayflower may perhaps claim to have in it the germs of a government.

I am here tracing only the formal and legal growth of state constitutions. Their democratic spirit and contents are largely due to the ideas with which the theology of the Reformers, and especially of Calvin, had filled the minds of the Puritan emigrants; and the ecclesiastical arrangements the latter set up powerfully influenced those of the nascent political communities.

[2] The phrase first colony distinguishes what afterwards became the state of Virginia from the more northerly parts of Virginia, afterwards called New England. The second colony was to be Plymouth, one of the two settlements which became Massachusetts.

[3] Even in declaring herself independent, New Jersey clung to the hope that the mother country would return to wiser counsels, and avert the departure of her children. She added at the end of her constitution of July 2, 1776, the following proviso: “Provided always, and it is the true intent and meaning of this Congress, that if a reconciliation between Great Britain and these colonies should take place, and the latter be taken again under the protection and government of the Crown of Britain, this charter shall be null and void, otherwise remain firm and inviolable.” The truth is that the colonists, till alienated by the behaviour of England, had far more kindly feelings towards her than she had towards them. To them she was the old home, to her they were simply customers. Some interesting illustrations of the views then entertained as to the use of colonies may be found in the famous discussion in the fourth book of Adam Smith’s Wealth of Nations, which appeared in 1776.

[4] Rhode Island simply passed a statute by her legislature in May 1776, substituting allegiance to the colony for allegiance to the King. Connecticut passed the following statute: “Be it enacted by the Governor and Council and House of Representatives, in general court assembled, that the ancient form of civil government contained in the charter from Charles II, King of England, and adopted by the people of this State, shall be and remain the civil Constitution of this State, under the sole authority of the people thereof, independent of any king or prince whatever; and that this republic is, and shall for ever be and remain, a free, sovereign, and independent State, by the name of the State of Connecticut.” (Three paragraphs follow containing a short “Bill of Rights,” and securing to the inhabitants of any other of the United States the same law and justice as natives of the state enjoyed.) This is all that Connecticut thought necessary. She had possessed, as did Rhode Island also, the right of appointing her own governor, and therefore did not need to substitute any new authority for a royal governor.

[5] In the Act of 1889 for the admission of North Dakota, South Dakota, Montana, and Washington, and in the Act of 1894 for the admission of Utah, and that of 1906 for the admission of Oklahoma, the former course, in the admission of Idaho and Wyoming in 1890, and of New Mexico and Arizona in 1910, the latter course, was followed.

[6] In practice Congress can influence the character of a state constitution, because a state whose constitution contains provisions which Congress disapproves may be refused admission. But since the extinction of slavery and completion of the process of reconstruction, occasions for the serious exercise of such a power rarely arise. It was used to compel the seceding states to modify their constitutions so as to get rid of all taint of slavery before their senators and representatives were readmitted to Congress after the war. Of course Congress is not bound to admit a community desiring to be recognized as a state. Utah was kept knocking at the door of the Union for many years, because the nation wished to retain for the purpose of preventing polygamy that full control which can be exercised over a Territory but not over a state. Her admission was accompanied by a prohibition of polygamy. Sometimes a dominant party postpones the admission of a state likely to strengthen by its vote the opposite party; and sometimes, as happened in the cases of Wyoming, Montana, Idaho, and New Mexico, communities whose fitness for statehood was doubtful were admitted for partisan reasons.

[7] However, though the constitutions of the Canadian and Australian Dominions and of United South Africa were enacted by British statutes of 1867, 1900, and 1909 respectively, all three had been drafted by the colonists.

[8] In Rhode Island and Connecticut the legislature continued the colonial constitution. In South Carolina a body calling itself the “Provincial Congress” claimed to be the “General Assembly,” or legislature of the colony, and as such enacted the constitution. In the other revolting colonies, except Massachusetts, conventions or congresses enacted the constitution not submitting it to the voters for ratification. In Massachusetts the convention submitted its draft to the voters in 1780, and the voters adopted it, a previous draft tendered by the legislature in 1778 having been rejected.

[9] Proceedings were taken before the Court of Appeals of Kentucky to determine the validity of these alterations, and the court by a majority upheld them, on the ground, it would seem, that the legislature and executive had treated them as operative. Sed quœre.

[10] In New Hampshire the legislature has no power to propose amendments, so the local authorities take the sense of the people every seven years as to the need for a revising convention. In some states the legislature can do so only after stated intervals, e.g., of five years.

[11] Constitution of 1897, which however also provides that the legislature may, by a like majority, submit to popular vote the question of summoning a convention to revise the constitution.

[12] Sometimes, however, an absolute majority of all the qualified voters is required. In Rhode Island (where the voting is in town and ward meetings) a three-fifths majority is needed, and in South Carolina the ratification of the next elected legislature by a two-thirds majority in each house is necessary. In Delaware the proposal to call a convention must be approved by a majority of all the voters, in Kentucky by at least one-fourth of the total number who voted at the last preceding general election. Delaware having during several years failed in the attempt to amend her constitution (of 1831) by the legislature, fell back, in 1887, on the proposal to hold a constitutional convention, and at last gave herself a new constitution in 1897.

[13] In the more recent constitutions more than a bare majority of members of each of the two houses of the legislature must agree to propose an amendment, the amendment being in every case ultimately submitted to the people.

[14] Some details as to the provisions of state constitutions may be found in Mr. F. J. Stimson’s American Statute Law, and in the same author’s Federal and State Constitutions of the United States (1908). The subject of state constitutions has also been very well treated by Professor J. Q. Dealey in his book Our State Constitutions. The great authority was the collection of the state constitutions, embracing (together with the colonial charters) all that have been duly enacted since 1776, in the two thick quarto volumes entitled Federal and State Constitutions, published under the authority of Congress by Ben. Perley Poore, Washington, 1878. In 1909 a new collection was under the authority of Congress published in seven volumes entitled The Federal and State Constitutions, Colonial Charters and other Organic Laws of the States, Territories, and Colonies now or heretofore forming the United States of America, edited by Francis Newton Thorpe, Ph.D. LL.D. It is much to be wished that an annual, or a biennial or even quinquennial supplement to this new collection should be officially published, containing all the new consitutions and constitutional amendments. At present it is very difficult, even for residents in the United States, to ascertain exactly how the constitution of each state stands at a given moment; and I have not found it possible to keep abreast of the changes made since the aforesaid new collection went to press.

[15] Nowadays, however, the Landesgemeinden (which survive only in Uri, Unterwalden, Glarus, and Appenzell, having been recently discontinued in Schwyz and Zug) do not act as constituent or constitution-enacting bodies, though they still directly legislate.

[16] Mr. F. J. Stimson (Federal and State Constitutions, p. 68) well observes that whereas the extreme democrats of the Revolutionary age desired to limit as much as possible the powers of the federal government, deeming it dangerous to liberty, they were glad to entrust very wide powers to the state legislatures which to them represented popular power. The propertied and educated classes on the other hand feared the state legislatures and sought to have restrictions placed upon them. The precedent of the Declaration of Independence, whose influence was great, helped them to secure the insertion of such restrictions in Bills of Rights. Of late years quite new reasons (to be presently referred to) have arisen for limiting legislative powers.

[17] Not till 1889, however, did New Hampshire strike out of her Constitution of 1792 a provision enabling the legislature to authorize towns to provide for the support of “public Protestant teachers of piety, religion, and morality.”

[18] In Arkansas, Maryland, Mississippi, North Carolina, South Carolina, and Texas, a man is declared ineligible for office if he denies the existence of God; in Pennsylvania and Tennessee he is ineligible if he does not believe in God, and in the existence of future rewards and punishments. In Arkansas and Maryland such a person is also incompetent as a witness or juror.

[19] These provisions were inserted shortly after the Civil War in order to protect the Negroes.

[20] Until 1891, Kentucky added, “The right of property is before and higher than any constitutional sanction; and the right of the owner of a slave to such slave and its increase is the same and as inviolable as the right of the owner of any property whatever,” although this doctrine had been annulled, in effect, by the Thirteenth Amendment to the federal Constitution.

[21] A curious survival may be noted in the provisions enabling the jury to determine law as well as fact in libel cases; e.g., Mississippi (1890) and Kentucky (1891) in criminal, Wyoming (1889) also in civil cases.

[22] North Carolina, Mississippi, Missouri, Louisiana, Colorado, Kentucky, Oklahoma, and Montana, states in which daily experience shows that the measures taken have not hitherto proved successful.

[23] Mississippi (Constitution of 1890) allows courts of justice to exclude, in some classes of prosecutions, persons not necessary for the conduct of the trial. Wyoming (1889) provides that no person detained as a witness be confined in any room where criminals are imprisoned, Oklahoma that if a verdict is rendered by less than the whole number of jurors, it shall be in writing and signed by each juror concurring therein.

[24] Redfield, C. J., in 27 Vermont Reports, p. 142, quoted by Cooley, Constit. Limit., p. 108.

[25] Denio, C. J., in 15 N.Y. Reports, p. 543, quoted ibid. p. 107.

[26] It has, for instance, been held that a state legislature cannot empower election boards to decide whether a person has by duelling forfeited his right to vote or hold office, this inquiry being judicial and proper only for the regular tribunals of the state.—Cooley, Constit. Limit., p. 112. Acts passed by legislatures affecting some judicial decision already given, have repeatedly been held void by the courts.

[27] In Switzerland, however, the cantonal courts have not, except perhaps in Uri, the right to declare invalid a law made by a cantonal legislature, the legislature being apparently deemed the judge of its own powers. A cantonal law may, however, be quashed, in some cases, by the Federal Council, or pronounced invalid by the Federal Court. See an interesting discussion of the question in Dubs, Das öffentliche Recht der Schweizerischen Eidgenossenschaft, Part I, p. 113.

[28] This was not always admitted; just as in England it was at one time held that natural justice and equity were above acts of Parliament. So in the case of Gardner v. The Village of Newburg (Johnson’s Chancery Reports, N.Y. 162), the New York legislature had authorized the village to supply itself with water from a stream, but had made no provision for indemnifying the owners of lands through which the stream flowed for the injury they must suffer from the diversion of the water. The Constitution of New York at that time contained no provision prohibiting the taking of private property for public use without compensation; notwithstanding this, Chancellor Kent restrained the village from proceeding upon the broad general principle which he found in Magna Charta, in a statutory Bill of Rights, which of course could not control the legislature, and in Grotius Puffendorf and Bynkershoek. (I owe that reference to the kindness of Mr. Theodore Bacon.)

As the doctrine stated in the text has been doubted by some critics, I may refer for further confirmation of it to Dash v. Van Kleech, 7 Johns, 477 (words of Chancellor Kent), and People v. Gillson, 109 N.Y. 398. See further on this subject the late Professor Thayer’s Cases in Constitutional Law, p. 48.

[29] Cooley, Constit. Limit., pp. 200, 227.

[30] Massachusetts, Maine, New Hampshire, Rhode Island, Colorado, Florida, and South Dakota. In Vermont a similar power is given by statute. In South Dakota the governor may require it “upon important questions of law involving the exercise of his executive powers and upon solemn occasions.” In Florida it is only the governor to whom the power has been given, and whereas under the Constitution of 1868 he could obtain the opinion of the justices “upon any point of law,” he can by the Constitution of 1886 require it only “upon any question affecting his executive powers and duties.” A similar provision was inserted in the Constitution of Missouri of 1865, but omitted in the revised (and now operative) Constitution of 1875, apparently because the judges had so often refused to give their advice when asked for it by a house of the legislature, that there seemed little use in retaining the enactment. In the other states the judges have apparently always consented to answer, save on one or two occasions in Massachusetts. See on the whole subject an interesting pamphlet by the late Professor J. B. Thayer, of the Harvard Law School.

[31] The judges of the supreme court of Massachusetts suggest in their very learned and instructive opinion, delivered to the legislature, December 31, 1878, that this provision, which appears first in the Massachusetts Constitution of 1780, and was doubtless borrowed thence by the other States, “evidently had in view the usage of the English Constitution, by which the King as well as the House of Lords, whether acting in their judicial or in their legislative capacity, had the right to demand the opinion of the twelve judges of England.” This is still sometimes done by the House of Lords; but the opinions of the judges so given are not necessarily followed by that House, and though always reported are not deemed to be binding pronouncements of law similar to the decisions of a court.

[32] Mr. Thayer shows, by an examination of the reported instances, that in Massachusetts, New Hampshire, and Rhode Island, as also in Missouri from 1865 to 1875, the courts held that their opinions rendered under these provisions of the state constitutions were not to be deemed judicial determinations, equal in authority to decisions given in actual litigation, but were rather prima facie impressions, which the judges ought not to hold themselves bound by, when subsequently required to determine the same point in an action or other legal proceeding. It is otherwise in Maine and Colorado.

[1] I venture again to commend the study of these constitutions to the philosophic inquirer into what may be called the science of comparative politics. Both among the pre-Revolutionary charters and the state constitutions he will find matter full of instruction. Among the former I may refer especially to the Frame of Government of Pennsylvania, 1682 and 1683, and to the Fundamental Constitutions of Carolina of 1669. These last were framed by John Locke, and revised by the first Lord Shaftesbury. They were found unsuitable, were only partially put in force, and were abrogated by the proprietors in 1693, but they are scarcely less interesting to the student of history on that account.

[2] In New York a veto on acts of the legislature was by the first constitution vested in the governor and judges of the highest state court, acting together.

[3] The wide powers of these early legislatures are witnessed to by the fear which prudent statesmen entertained of their action. Madison said, in the Philadelphia Convention of 1787, “Experience proves a tendency in our governments to throw all power into the legislative vortex. The executives of the States are little more than ciphers; the legislatures are omnipotent.”

[4] Though Massachusetts forgot till 1892 to abolish the property qualification for her governorship.

[5] Owing to the absence of any general official record, it is hard to ascertain the exact number, but in the ten years between 1894 and 1904 it would appear that 381 were voted on, of which 217 were adopted and 164 rejected (Dealey, Our State Constitutions, p. 13). Between 1892 and 1909 California adopted 47 amendments, Georgia and Minnesota 11 each, Florida, Oregon, and North Dakota 10 each, and some states none at all.

[6] Constitutions of North Dakota, South Dakota, and Wyoming, all of 1889.

[7] See the remarkable group of cases beginning with Munn v. Illinois (commonly called the Granger Cases) in 94 U.S. Reports, p. 113.

[8] So Kentucky (Constitution of 1891, § 243) and North Dakota (Constitution of 1889, § 209) prohibit the labour of children under twelve. Wyoming forbids the employment of girls or women in mines.

[9] So Mississippi (Constitution of 1890, § 262).

[10] Mississippi seems to seek the political education of the legislator by requiring him to swear to read the constitution or have it read to him.

[11] This is said to have happened in some states as respects lotteries.

[12] “The General Assembly may provide that no person shall be capable of holding or being elected to any post of profit, trust, or emolument, civil or military, legislative, executive, or judicial, under the government of this commonwealth who shall hereafter fight a duel, or send or accept a challenge to fight a duel, the probable issue of which may be the death of the challenger or challenged, or who shall be second to either party, or shall in any manner aid or assist in such duel, or shall be knowingly the bearer of such challenge or acceptance; but no person shall be so disqualified by reason of his having heretofore fought such duel or sent or accepted such challenge, or been second in such duel, or bearer of such challenge or acceptance” (Constitution of 1830, art. III, § 12, repeated in Constitution of 1850, art. IV, § 17). In her Constitution of 1870 Virginia is not content with suggesting to the legislature to disqualify duellists, but does this directly by art. III, § 3. Many constitutions now declare duellists disqualified for office, and others add a disqualification for the franchise. Nearly all are Southern and West states. Kentucky (Constitution of 1891) requires all officers, members of the General Assembly, and persons being admitted to the bar to take an oath that they have not fought a duel since the adoption of the constitution, nor aided any person in so offending.

[1] This has happened more than once of late years in Kentucky and Delaware.

[2] The Swiss Federal Constitution provides that any federal law and federal resolution of general application and not of an urgent character, must on the demand of eight cantons or of thirty thousand voters be submitted to popular vote for acceptance or rejection. This vote is frequently in the negative. See Swiss Federal Constitution, art. 89; and the remarks of ex-President Numa Droz in his Instruction civique, § 172. In nine cantons the submission of laws to popular vote was in 1907 compulsory and in eight facultatif. A referendum exists in every canton except Fribourg, Valais, and the four which retain a Langesgemeinde. See S. Deploige, Le Referendum en Suisse, Brussels, 1892. In 1891 the Federal Constitution was amended by introducing the provision called the initiative, which enables fifty thousand voters to demand the submission of a proposition to popular vote.

[3] Much importance has come to be attached in England to casual parliamentary elections occurring when any important measure is before Parliament, because such an election is taken to indicate the attitude of the people generally towards the measure, and by consequence the judgment they would pronounce were a general election held. There have been instances in which a measure or part of a measure pending in Parliament has been dropped, because the result of the “bye-election” was taken to indicate that it displeased the people.

There are now those in England who advocate the introduction of a referendum as a method to be applied to certain classes of acts.

[4] This is now the general rule in new constitutions. Washington provides that though a bare majority may settle where the seat of state government shall be, a majority of two-thirds shall be required to change it.

[5] According to the maxim Delegata potestas non delegatur, a maxim which would not apply in England, because there Parliament has an original and not a delegated authority.

Judge Cooley says: “One of the settled maxims of constitutional law is that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority. Where the sovereign power of the State has located the authority, there it must remain; and by the constitutional authority alone the laws must be made until the Constitution itself is changed. The power to whose judgment, wisdom, and patriotism this high prerogative has been entrusted cannot relieve itself of the responsibility by choosing other agencies upon which the power shall be devolved” (Constit. Limit., p. 141). He quotes from Locke (Civil Government, § 142) the remark that “The legislature neither must nor can transfer the power of making laws to anybody else, or place it anywhere but where the people have.” This is one of Locke’s “bounds set to the legislative power of every commonwealth in every form of government”; but it has not precluded the British Parliament from delegating large, and in many cases truly legislative, powers to particular persons or authorities, such as the Crown in Council, or the Council of Judges.

There has been much difference of opinion among American courts as to the extent to which a legislature may refer the operation of a general law to popular vote in a locality, but “the clear weight of authority is in support of legislation of the nature commonly known as local option laws.” —Cooley, ut supra, p. 152; and see the cases collected in his notes.

[6] Amendments to the constitution are now frequently made by the initiative in states which have adopted that institution.

[7] Constitution of 1848, art. XI, § 5.—This provision stood till 1902, when it was repealed by an amendment which gave the legislature power to regulate by general laws the creation and rules of banks. See also the constitutions of Iowa, Michigan, Illinois, Kansas, Ohio, and Missouri.

[8] Amendments of 1871 and 1874 to the Constitution of 1857.

[9] I take these figures from the very instructive book of President Lowell, Pubic Opinion and Popular Government.

[10] Amendment of 1887 to the Constitution of California. Washington (Constitution of 1889, art. XI, § 12), in adopting a similar provision, restricts it to cities with a population of twenty thousand or over, but drops the requirement of approval by the state legislature. See, for specimens of popular vote provisions for local areas, Constitution of Oklahoma, § 415, post.

[11] I quote this from an interesting pamphlet by Professor Beard, entitled The Ballot’s Burden.

[12] In the case of local option there is the further argument that to commit the question of licences to a local representative is virtually to make the election of that authority turn upon this single question, and that there is an advantage in making a restricton on the freedom of the individual issue directly from the vote of the people, who may feel themselves doubly bound to enforce what they have directly enacted.

[13] Mr. Goldwin Smith.

[14] So frequent a charge against the Greek republics and the Italian republics of the Middle Ages, as Dante says, apostrophizing Florence:

“Ch’ a mezzo Novembre, Non giunge quel che tu d’Ottobre fili.”

[15] Where it is desired not to complicate the acceptance or rejection of a draft constitution with the enactment of some particular provision, that provision is separately submitted to the people; if they approve it, it is inserted in the constitution.

[16] For a thoughtful judgment upon the new system see President Lowell’s admirable book already referred to. Up to November 1913, initiative and referendum statewide in their operation had been adopted by South Dakota (which led the way in 1898), Utah, Oregon, Nevada, Montana, Oklahoma, Maine, Missouri, Arkansas, Colorado, Arizona, California, Nebraska, Washington, Idaho, Ohio, and Michigan.

So far as could be ascertained in 1913, the initiative, referendum, and recall exist in respect of municipal government either generally, or for such cities as may adopt them by popular vote, in all states except Virginia, New York, New Hampshire, Vermont, Delaware, and Indiana.

[1] However, in Rhode Island the governor was chosen, not as now by the people at large, but by the company assembled in general court, a body which passed into the legislature of the colony. See Charter of Rhode Island, 1663. In Connecticut the general court chose if the people failed to elect, or a sudden vacancy occurred.

[2] Even in Connecticut and Rhode Island the governor, though chosen by the colony, was in a sense responsible to the Crown. It was through him as executive head that the home government dealt with the colony.

[3] Of course in the British self-governing colonies the governor is still responsible to the Crown, but this responsibility is confined within narrow limits by the responsibility of his ministers to the colonial legislature and by the wide powers of that legislature.

[4] Massachusetts tried for several years the scheme of a small council as the executive power representing the former Crown governor, but in 1780 she came back to the plan of a single governor, while retaining, as she still retains, a council surrounding him.

[5] One might add another generation at the beginning of this genealogy by deriving the English corporate company from the Roman collegia, and a generation at the end by observing how much the constitution of modern Switzerland owes to that of the United States.

[6] In Rhode Island, however, the lieutenant-governor is a member of the Senate, the governor presiding, but with only a casting vote. When the governor is absent, the lieutenant-governor presides, and has a casting vote besides his own vote as senator. In some states the lieutenant-governor presides over the Senate.

[7] Upon this subject of the division of the legislature, see Kent’s Commentaries, vol. i, 208–10; and Story’s Commentaries on the American Constitution, § § 548–70. It deserves to be remarked that the Pennsylvanian Constitution of 1786, the Georgian Constitution of 1777, and the Vermont Constitutions of 1786 and 1793, all of which constituted one house of legislature only, provided for a second body called the Executive Council, which in Georgia had the duty of examining bills sent to it by the House of Assembly, and of remonstrating against any provisions they disapproved, and in Vermont was empowered to submit to the Assembly amendments to bills sent up to them by the latter, and in case the Assembly did not accept such amendments, to suspend the passing of the bill till the next session of the legislature. In 1789, Georgia abolished her Council, and divided her legislature into two houses; Pennsylvania did the same in 1790; Vermont in 1836. Both Pennsylvania and Vermont had also a body called the Council of Censors, who may be compared with the Nomothetæ of Athens, elected every seven years, and charged with the duty of examining the laws of the State and their execution, and of suggesting amendments. This body was abolished in Pennsylvania in 1790, but lasted on in Vermont till 1870. All these experiments well deserve the study of constitutional historians.

[8] It ought to be noted as an illustration of the divergences between countries both highly democratic that in the Swiss cantons the legislatures consist of one chamber only. In most of these cantons there is, to be sure, a referendum and generally a small executive council. Another remarkable divergence is that whereas in America, and especially in the West, the tendency is towards “rotation” in office, in Switzerland an official and a member of a legislature is usually continued in his post from one term to another, in fact is seldom displaced except for some positive fault. At one time officials were steadily reelected in Connecticut.

[9] In Connecticut, by a provision of a constitutional amendment adopted in 1874, every town which then contained, or should thereafter contain, a population of 5,000, returns two members to the Assembly, and every other town retains the representation it had in that year. The Senate, however, is elected on a population basis. A great many small places have each two members. The state is virtually governed by the representatives of “rotten boroughs,” and as they form the majority, they have hitherto refused to submit to the people a constitutional amendment for a redistribution of seats in the Assembly, on the basis of equal population. Some troubles that occurred in the state were partly due to this excessive difficulty in reforming an antiquated constitution. In some states there has been audacious gerrymandering. The supreme court of Wisconsin once declared inconsistent with the constitution a redistricting of the state which had neglected county boundaries and created very unqual districts.

[10] For instance, in Rhode Island every town or city, be it great or small, returns one senator; and thus it at one time befell that a population of 253,000 in 13 cities and towns had 13 senators, while 23 towns with 20,000 people sent 23 senators. In the House of 77 members each city or town had at least one member, and the city of Providence, with a population nearly half that of the state, only 12. An amendment to increase the House to 100 members and to give Providence 25 was carried in 1909. In Illinois, every district returns one senator and three representatives.

[11] In some states a senator must have attained thirty years of age, in some a representative must have attained twenty-five.

[12] A town or township means in New England, and indeed generally in the United States, a small rural district, as opposed to a city. It is a community which has not received representative municipal government.—See Chapter 48 post.

[13] Rhode Island, however, retains a qualification for the purposes of voting for members of city councils. A good many constitutions forbid the imposition of any property qualification.

[14] The “reasonable interpretation” of this remarkable provision seems to be that it is intended to furnish a peaceful method of excluding more or less illiterate Negroes and including illiterate whites, a result which has been in fact attained, and which, though it may appear at variance with the spirit of the Fifteenth Amendment to the federal Constitution, is under the circumstances of Mississippi possibly not the worst solution of a difficult problem. As to the provisions of recent Southern constitutions affecting the voting of Negroes, see Chapters 93 and 94 post.

The Constitution of Colorado, 1876, allowed the legislature to prescribe an educational qualification for electors, but no such law to take effect prior to 1890. Florida by its Constitution of 1868 directed its legislature to prescribe such qualifications, which, however, were not to apply till after 1880, nor to any person who might then be already a voter. (In the Constitution of 1886 I find no such provision.)

[15] North Dakota, however, provides that its Senate may have as many as 50, its House as many as 140, members.

There are about seven thousand state legislators in all in the United States.

[16] These limitations on payment are sometimes, where statutory, repealed for the occasion. In the Swiss Federal Assembly a member receives pay (16s. per diem) only for those days on which he answers to his name on the roll call.

[17] Mississippi provides for a short special session for financial bills halfway through the term.

[18] Some of the biennially-meeting legislatures are apt to hold adjourned sessions in the off years.

[19] In New York impeachments are tried by the Senate and the judges of the Court of Appeal sitting together; in Nebraska by the judges of the supreme court.

[20] Here and there one finds slight differences, as, for instance, in Vermont the power decennially to propose amendments to the constitution belongs to the Senate, though the concurrence of the House is needed. However, I do not attempt in this summary to give every detail of every constitution, but only a fair general account of what commonly prevails, and is of most interest to the student of comparative politics.

[21] Four constitutions fix the quorum at two-thirds, and two specify a number.

[22] See, as to the committees of Congress, Chapter 15 ante. Many constitutions provide that no bill shall pass unless it has been previously referred to and considered by a committee.

[23] In Massachusetts there were in 1912 five standing committees of the Senate, seven of the House, and thirty joint standing committees of both houses. In North Dakota there were in 1891 thirty-three standing committees of the Senate, thirty-nine of the House, and six joint standing committees of House and Senate. In New York there were in 1913 twenty-five standing committees of the Senate, thirty-one of the Assembly.

[24] See, for instance, Constitution of Texas of 1876.

[25] Similar lists occur in the constitutions of all the Western and Southern states as well as of some Eastern states (e.g., Pennsylvania and New York). Among them the prohibitions to grant divorces and to authorize the adoption or legitimation of children are frequent.

[26] See also Chapter 43 on state finance. The local authorities had been usually forbidden by statute to borrow or tax beyond a certain amount, but as they had formed the habit of obtaining dispensations from the state legislatures, the check mentioned in the text has been imposed on the latter.

[27] Idaho, Indiana, and Oregon direct every act to be plainly worded, avoiding as far as possible technical terms, and Louisiana (Constitution of 1879, § 31) says: “The General Assembly shall never adopt any system or code of laws by general reference to such system or code of laws, but in all cases shall recite at length the several provisions of the laws it may enact.”

[28] Not to add that the inclusion in one statute of wholly different matters may operate harshly on persons who have failed to note the minor contents of a bill whose principal purpose does not affect them. The commoners of the New Forest in Hampshire were once surprised to awake one morning and find that the Crown had smuggled through Parliament, in an act relating to foreshores in Scotland, a clause seriously prejudicial to their interests.

[1] Another illustration of the tendency to reproduce England. Vermont was still under the influence of colonial precedents when it framed its Constitutions of 1786 and 1793. Maine was influenced by Massachusetts. None of the newer Western states has even tried the experiment of such a council.

New York had originally two councils, a “Council of Appointment,” consisting of the governor and a senator from each of the (originally four) districts, and a “Council of Revision,” consisting of the governor, the chancellor, and the judges of the supreme court, and possessing a veto on statutes. The governor has now, since the extinction of these two councils, obtained some of the patronage which belonged to the former as well as the veto which belonged to the latter.

[2] It deserves to be remarked that neither the Constitution of the Swiss Confederation nor any cantonal constitution vests a veto in any officer. Switzerland seems in this respect more democratic than the American states, while in the amount of authority which the Swiss allow to the executive government over the citizen (as witness the case of the Salvation Army troubles in Canton Bern) they are less democratic.

[3] Commissions to officers up to the rank of colonel inclusive were usually issued by the governor of the state. The regiment, in fact, was a state product, though the regular federal army is of course raised and managed by the federal government directly.

[4] This is the place for noticing a remarkable novelty in the relations of the states and their respective executive heads to the nation and its head. In 1908 the president of the United States invited the governors of all the states to meet him and some persons of exceptional knowledge and experience in a conference at Washington for the purpose of considering a matter of high public consequence, namely the best method of conserving and turning to full account the natural resources of the country, such as forests, mines, and water power. The object was to enlist the interest of the states in the adoption of a national policy upon this great national matter, and if possible to induce them to legislate each for itself in accordance with some general principles which might also be recognized and carried out by the national government in its own sphere. The conference met in the winter of 1908 and again early in 1909. Not only did its deliberations command much attention from the people, but the scheme of bringing the states through their governors into council with the national administration in a way not provided for by, but in nowise inconsistent with the federal Constitution, appeared to set a precedent capable of being used thereafter, as a means of arousing public opinion and concentrating it upon some common aim, which it might be found difficult to attain through the action of Congress. In 1910 arrangements were made for holding conferences of governors at stated times in the future.

[5] In Rhode Island the governor presides over the Senate, an interesting survival of European arrangements.

[6] Where there is no lieutenant-governor, the president of the state Senate or the secretary of state usually succeeds if the governor dies or becomes incapable of discharging his functions.

[7] Florida, by her Constitution of 1868, art. VI, 17, and art. VIII, created a “cabinet of administrative officers,” consisting of eight officials, appointed by the governor, with the consent of the Senate, who are to hold office for the same time as the governor, and “assist the governor in the performance of his duties.” However, in her Constitution of 1886 she simply provides that “the governor shall be assisted by administrative officers,” viz., secretary of state, attorney general, comptroller, treasurer, superintendent of public instruction, and commissioner of agriculture, all elected by the people at the same time with the governor and for the same term. The council of North Carolina (Constitution of 1868) consists of five officials, who are to “advise the governor in the execution of his duty,” but they are elected directly by the people. Their position may be compared with that of the Council of India under recent English statutes towards the secretary of state for India. Massachusetts has always had an “executive council” consisting of eight persons chosen annually by the people in districts. They “advise the governor in the executive part of the government” and have the right of rejecting nominations to office made by him. Here too we find a survival, which might seem to do more harm than good, because it lessens the governor’s responsibility. However, a respected and successful recent governor told me that he found his council helpful, as its members frequently took up and dealt with particular questions on which he consulted them. They became to him almost a sort of cabinet of administrative heads.

[8] In the Swiss Confederation the Federal Council of Seven consists of persons belonging to different parties, who sometimes speak against one another in the chambers (where they have the right of speech), but this is not found to interfere with their harmonious working as an administrative body.

[9] Oregon was long an exception, but now she too permits impeachment and used it in 1909 against two officials, one of whom resigned rather than face the trial, while the other escaped because the majority for conviction fell short of two-thirds.

[1] Admiralty business is within the exclusive jurisdiction of the federal courts.

[2] Note that the grossest abuses of judicial power by American judges, such as the Erie Railroad injunctions of Judge Barnard of New York in 1869, were perpetrated in the exercise of equitable jurisdiction. Equity in granting discretion opens a door to indiscretion, or to something worse.

[3] Delaware, New Jersey, Vermont, Tennessee, Michigan, Alabama, Mississippi.

[4] See Chapter 22 ante.

[5] This is perhaps less true of Louisiana, where the civil law of Rome, which may be said to have been the common law of the state, offered a better basis for a code than the English common law does. The Louisiana code is based on the Code Napoleon.

[6] A frequent form is that in the Constitution of Tennessee of 1870 (art. VI, § 9)— “Judges shall not charge juries with respect to matters of fact, but may state the testimony and declare the law.” Washington forbids even comments on the facts. Some constitutions are silent on the point.

[7] The Californian judges are said to have contrived to evade this. Idaho has a similar provision, but gives the judge only thirty days. Montana provides that any judicial officer who absents himself more than sixty consecutive days from the state shall be deemed to have forfeited his office.

[8] Virginia, New Jersey, North Carolina, and South Carolina.

[9] Massachusetts, New Hampshire, Pennsylvania, Maryland, New York.

[10] Rhode Island, Vermont, Virginia, South Carolina.

[11] Massachusetts, Connecticut, New Hampshire, Delaware, Maine, Mississippi, New Jersey. In Maine and Connecticut probate judges are popularly elected. In Florida, though the three justices of the supreme court are now (Constitution of 1886) elected by the people, the seven circuit judges are appointed by the governor.

[12] The power of impeachment remains but is not often used.

[13] Massachusetts, Rhode Island, New Hampshire, all of them among the original thirteen. In Rhode Island the judges are in theory dismissible by the legislature.

[14] E.g., the city magistrates of New York City and the circuit judges of Wayne County, Michigan, in which Detroit stands.

[15] The notorious Tweed Ring judges of 1869–71.

[16] In Connecticut the change was made at the instance of the Bar Association of the state, which had seen with regret that the dominant party in the state legislature was placing inferior men on the bench.

[1] The constitutions of Louisiana and Georgia allow state revenue to be applied to the supplying of wooden legs and arms to ex-Confederate soldiers; Mississippi directs pensions to be provided for them or their widows.

[2] All states have set apart for the support of schools, agricultural and mechanical colleges, and other educational or benevolent institutions, often including universities, a considerable fund derived from the sale of Western lands granted for the purpose by the federal government at various times, beginning from 1785, and derived in some cases also from lands appropriated originally by the state itself to these objects. Down to 1911, 96,428,833 acres had been granted by the United States government for educational purpose.

[3] In the state of Connecticut (population in 1910, about 1,114,756) the total revenue raised by taxation in 1908 was $15,324,873.25 which was collected by and for the following authorities and purposes:

[4] Stamp duties were also resorted to during the Civil War and the war with Spain, but at present none are levied by the national government.

[5] In 1913 an amendment to the Constitution (the sixteenth), authorizing Congress to levy an income tax, was passed, and a statute imposing an income tax was enacted.

[6] The account in the text does not, of course, claim to be true in all particulars for every state, but only to represent the general usage.

[7] The special commission on taxation in Connecticut, in their recent singularly clear and interesting report of 1887, observe: “One great defect in the practical execution of our tax laws consists in inequalities of assessment and valuation. This shows itself especially as between the different towns. . . . It is notorious that in few, if any, towns do the assessors value real estate at what they think it is fairly worth. On the contrary, they generally first make this appraisal of its actual value, and then put it in the list at a certain proportion of such appraisal, varying from 33 1/3 to 75 per cent. Similar reductions are made in valuing personal property, though with less uniformity, and so perhaps with more injustice” (p. 8). “Household furniture above $500 in value constitutes an item of only $9,500 in one of our cities, while a neighbouring town of not more than half the population returns $12,900” (p. 16).

[8] In California much agitation arose in 1909 over the question whether the valuations made in and around Los Angeles in the southern part of the state had been unduly low as compared with those in the more northerly parts.

[11] The West Virginian tax commission, in 1884, says, “At present all taxes from invisible property come from a few conspicuously conscientious citizens, from widows, executors, and from guardians of the insane and infants; in fact, it is a comparatively rare thing to find a shrewd trader who gives in any considerable amount of notes, stocks, or money. The truth is, things have come to such a condition in West Virginia that, as regards paying taxes on this kind of property, it is almost as voluntary and is considered pretty much in the same light as donations to the neighbourhood church or Sunday school.” Reports of commissioners in several other states are to the same effect. See, especially, the Report of the Tax Commission of Baltimore, 1886; and the supplementary report of one member of the Maryland Tax Commission, Mr. Richard T. Ely, in which much instructive evidence as to the failure in various states of the efforts made to tax intangible property has been collected and set forth (Baltimore, 1888). A Boston commission reported, in 1891, in favour of taxing real estate only; arguing that under the laws of Massachusetts taxing personalty, much property was really twice taxed. Similarly a New York commission in 1906.

[12] Judge Foster, in the case of Kirtland v. Hotchkiss, 42 Conn. Rep., p. 449. So Mr. David A. Wells, in his report as Special Tax Commissioner to the New York legislature, says: “Oaths as a matter of restraint or as a guarantee of truth in respect to official statements have in great measure ceased to be effectual; or in other words, perjury, direct or constructive, has become so common as to almost cease to occasion notice. This is the all but unanimous testimony of officials who have of late had extensive experience in the administration of both the national and State revenue laws.”

Professor E. R. A. Seligman, in a valuable article in the Political Science Quarterly for March 1890, sums up the case against a property tax as follows:

“The property tax of today, because of its attempt to tax intangible as well as tangible things, sins against the cardinal rules of uniformity, of equality, and of universality of taxation. It puts a premium on dishonesty and debauches the public conscience. It reduces deception to a system and makes a science of knavery. It presses hardest on those least able to pay. It imposes double taxation on one man and grants entire immunity to the next.”

[13] In Iowa the state auditor reported that “the class of property that escapes taxation most is that which pays the largest dividend’   ” and in Kentucky that “the property of the small owner is as a rule valued by a far higher standard than that of his wealthy neighbour.”

[14] An experienced Massachusetts publicist writes to me apropos of the passage in the text: “If one State compels a man to make a full declaration of his personal property for taxation and another does not there will be a tendency for capital to flow from the former to the latter. In Vermont, for instance, a law has been passed requiring every person under penalty to make sworn returns of his moveable property, and the result is that capital seems to be leaving the State.

“In New York the law taxes personal property, but if a person makes no return the assessors are instructed to ‘doom’ him according to the best of their knowledge and belief; and the amount becomes a matter of ‘trade.’ Returns are practically made only by trustees and corporations, not by capitalists. It is a case of bad law tempered by violation.

“In Massachusetts the practice in each town depends mainly upon the assessors. In Boston the chief office having resolved to let no one escape, has for twenty years gone on increasing the assessment each year till the victim makes a return. At first, men had some scruple about leaving the city before 1st May (the date of residence when taxes are assessed), but these were soon overcome, and now nearly all the capitalists have country places where they retire at a still inclement season, and are received with open arms by the local assessors, who accept just what they choose to pay, while their political influence, their taxes, and their public donations are lost to the city. Occasionally the assessors in a country town take it into their heads to apply the screw after the fashion of the city authority, and then there is a fine turmoil. As the rich men generally live in one quarter of the (country) town, the next step is to apply to the legislature to get the town divided, and the vicinity of Boston is thus being gradually cut up into small pieces.”

[15] North Carolina empowers its legislature to tax all trades, professions, and franchises. Arkansas in 1868 (art. X, § 17) directed its general assembly to “tax all privileges, pursuits, and occupations that are of no real use to society,” adding that all others shall be exempt. But having apparently found it hard to determine which occupations are useless, she dropped the direction in her Constitution of 1874, and now merely empowers the taxation of “hawkers, pedlers, ferries, exhibitions, and privileges.”

The persons or things on whom licence taxes or occupation taxes may be imposed are the following, some being mentioned in one state constitution, some in another: Pedlers, hawkers, auctioneers, brokers, pawnbrokers, merchants, commission merchants, “persons selling by sample,” showmen, jugglers, innkeepers, toll bridges, ferries, telegraphs, express agents (i.e., parcels’ delivery), grocery keepers, liquor dealers, insurance, vendors of patents, persons or corporations using franchises or privileges, banks, railroads, destructive domestic animals, dealers in “options” or “futures.”

[16] As to banks, which were an object of as much popular dislike in the middle of last century, as railroads subsequently became, see Ohio Constitution of 1851, art. XII, § 3.

[17] As ascertained by the assessors and board of equalization.

[18] Sometimes, however, the town or township in its corporate capacity pays the state its share of the state tax, instead of collecting it specifically from individual citizens.

[19] Sir T. More in his Utopia mentions with approval a law of the Macarians forbidding the king to have ever more than £1,000 in the public treasury.

[20] Virginia in her Constitution of 1902 creates a standing Committee of Audit composed of five members of the Assembly, who have the duty of inspecting all the financial officers of the state and are to report to the governor.

[21] In 1838 it was estimated that of the total debt of the states, then calculated at $170,800,000, $60,200,000 had been incurred for canals, $42,800,000 for railroads, and $52,600,000 for banking.

[22] Debts incurred for the purpose of suppressing insurrection or repelling invasion are excepted from these limitations.

[23] New York (Constitution of 1846, art. VII, § § 10–12) also names a million of dollars as the maximum, but permits laws to be passed raising loans for “some single work or object,” provided that a tax is at the same time enacted sufficient to pay off this debt in eighteen years; and that any such law has been directly submitted to the people and approved by them at an election. Similar provisions permitting increase by special popular vote are frequent in recent constitutions.

[24] Constitution of Missouri of 1875 (art. IV, § 45), a constitution whose provisions on financial matters and restrictions on the legislature are copious and instructive. Similar words occur in nearly all Western and Southern, as well as in some of the more recent Eastern, constitutions.

[25] See the elaborate provisions of the Constitution of Missouri of 1875 (art. X, § 11), and the Constitution of Montana, 1889 (art. XII, § 9).

[26] A specimen of the provisions restricting borrowing powers will be found in the extracts from the Constitution of Oklahoma in the Appendix.

[27] Cooley, Constit. Limit., p. 266.

[28] In some parts of New England the city, town, or other municipal debt is also the personal debt of every inhabitant, and is therefore an excellent security.

[1] Thus Massachusetts sometimes elects a Democratic governor, but her other state officials usually come from the Republican party, and she has for a very long time returned a Republican majority to the legislature. So in 1908, Ohio elected a Democratic governor while remaining otherwise Republican.

[2] Sometimes, however, inconvenience arises from the hostility of the state Senate and the governor. On one occasion the Senate of New York persistently refused to confirm the nominations made to certain offices by the governor, with the effect of securing the retention in office long beyond their legal term of several officials, these old officials holding on and drawing their salaries because no new men had been duly appointed to fill their places. The Senate was thought to have behaved ill; but the governor was not trusted and exerted nor deserved to exert any moral authority.

[3] See Chapter 98 on laissez faire, in Vol. II.

Many of these measures have been prepared by associations outside the legislature, who embody their wishes in a bill, give it to a member or members, and get it passed, perhaps with scarcely any debate. Thus not only the labour organizations, such as the Knights of Labour, and the Grangers (farmers’ clubs), but the Women’s Christian Temperance Union, the medical profession, the dentists, the dairymen, get their favourite schemes enacted.

[4] In 1901, of 1,132 acts passed by the legislature of Alabama, only 90 were general laws.

The restrictions imposed on special legislation by the more recent constitutions of Southern and Western states seem to have done some good. Mr. Dealey (Our State Constitutions) observes: “In all the States, in the years 1904 and 1905, 18,937 laws were passed, 8,362 of which were general. In the same years the (six) New England states whose legislatures are almost unrestricted, passed 3,877, of which 1,162 were general. Six states whose legislatures are fully restricted passed 1,558 laws, of which 1,127 were general. Thus in New England special legislation was 70 per cent of the whole, and in the six restricted States only 28 per cent of the whole.”

[5] Efforts have of late years been made to remedy these evils. In the state of New York, for instance, the number of special bills has been reduced by compelling the application of general laws, and useful provisions introduced for bringing all bills to the notice of all members in final form before they come on for final passage (Amendment of 1894 to state constitution). Proposals for appropriations of money are now required to be filed a good while beforehand with the state comptroller and these, tabulated and commented on, are laid before the governor and the legislature.

[6] This is one reason why in some states the reformers have obtained permission for cities to make their own charters.

[7] Recently steps have been taken in some few states to improve the quality of legislation by providing legal aid for members in the drafting of bills and supplying them with information. Wisconsin in its state library department has set an excellent example in the West, and while the New York State library does admirable work in collecting data for legislation, lawyers are retained to do drafting for any member desiring it, and the skilled administrative departments give advice and criticism to those who need it, they are of course at the service of the governor. Commissions are pretty frequently appointed to investigate and report upon questions of special difficulty.

[8] A lively picture of boss methods as formerly practised in this state may be found in a story called “Coniston,” by Mr. Winston Churchill.

[9] Mr. Theodore Roosevelt of New York, from whose instructive article in the Century Magazine for April 1885. [This passage was written in 1888.]

[10] Anyone with experience of legislative bodies will agree with the view that ignorance and stupidity cause more trouble than bad intentions, seeing that they are the materials on which men of bad intentions play.

[11] “There came before a committee (of the New York House) of which I happened to be a member, a perfectly proper bill in the interest of a certain corporation; the majority of the committee, six in number, were thoroughly bad men, who opposed with the hope of being paid to cease their opposition. When I consented to take charge of the bill, I stipulated that not a penny should be paid to ensure its passage. It therefore became necessary to see what pressure could be brought to bear on the recalcitrant members; and accordingly we had to find out who were the authors and sponsors of their political being. Three proved to be under the control of local statesmen of the same party as themselves, and of equally bad moral character; one was ruled by a politician of unsavoury reputation from a different city; the fifth, a Democrat, was owned by a Republican (!) Federal official, and the sixth by the president of a horsecar [street tramway] company. A couple of letters from these two magnates forced the last-mentioned members to change front on the bill with surprising alacrity.” —Mr. Theodore Roosevelt, ut supra.

The New York legislature was thought to have begun to improve in the first years of the century, but this pleasing impression received a shock in 1910.

[12] E.g., North Dakota, Montana, Idaho, and Wyoming.

[13] The president of a Western railroad, an upright as well as able man, told me that he was obliged to keep constant guard at the capital of the state in which the line lay, while the legislature was sitting, and to use every means to defeat bills aimed at the railway, because otherwise the shareholders would have been ruined. He deplored the necessity. It was a state of comparatively good tone, but there was such a prejudice against railroads among the farming population, that mischievous bills had a chance of success, and therefore desperate remedies were needed.

[14] “One senator, who was generally known as ‘the wicked Gibbs,’ spent two years at Albany, in which he pursued his ‘business’ so shamelessly that his constituents refused to send him there again; but he coolly came out a year later and begged for a return to the Assembly on the ground that he was financially embarrassed, and wished to go to the Assembly in order to retrieve his fortunes on the salary of an Assemblyman, which is $1500!” —Mr. J. B. Bishop of New York, in a paper entitled Money in City Elections, p. 6.

[15] Some of my informants would not admit this; and some fixed the percentage of corrupt men, even at Albany, much lower than Mr. Roosevelt does. Writers of the pessimistic school make it even higher. I give here and elsewhere what seem to me to be on the whole the best supported views, though, as Herodotus says of the rise of Cyrus, “knowing three other paths of story also.”

[16] In a Western state it recently happened that the most experienced judge had agreed upon certain much needed reforms in judicial procedure and caused a bill to be introduced into the legislature embodying them. There were, however, many lawyers of the meaner sort in that legislature who objected to these reforms because they would have lessened opportunities of gain; and by the efforts of these petty practitioners the bill was defeated. There was no one in the chamber able with official authority to insist that in the interests of the people at large the bill ought to pass.

[17] By Professor Gilmore of the University of Wisconsin.

[18] Even among the acts which appear in the statute books of the states under the heading of general laws, there are many of a local or special character. Some states (e.g., Wyoming) now forbid the passing of any private act.

As remarked in an earlier chapter, the total number of bills of all kinds introduced in 1908 into the British Parliament, which is the sole legislative authority for a population of forty-three millions, was 482, of which 241 passed.

[1] Although the existence of this ultimate remedy tends to make good members relax their opposition to bad bills, because they know that the veto will kill them, this is a less evil than the disuse of the veto would be.

[2] “In twelve States the legislature is forbidden to create any corporation whatever, municipalities included, except by general law, and in thirteen others to create by special Act any except municipal corporations, or those to which no other law is applicable. In some States corporations can be created by special Act only for municipal, charitable, or reformatory purposes. Such provisions are not intended to discourage the formation of private corporations. On the contrary, in all these States general laws exist under which they can be formed with great facility. Indeed the defects in some of these statutes, and their failure to provide safeguards against some at least of the very evils which they were intended to meet, might well suggest to legislators the question whether in avoiding the Scylla of special legislation they have not been drawn into the Charybdis of franchises indiscriminately bestowed. Perhaps the time will come when recommendations such as those urged by the New York railroad commission will be acted on, and the promoters of a new railroad will be obliged to furnish some better reason for its existence, and for their exercising the sovereign power of eminent domain, than the chance of forcing a company already established to buy them out—or, failing that, the alternative of being sold out under foreclosure, pending a receivership.” —Hitchcock, State Constitutions, p. 36. Prohibitions have become more stringent since the above was written.

“A great field for favouritism and jobbery exists, when special Acts of incorporation are required for each case in which special favours and special privileges may be given away by a legislation that may be corruptly influenced, without imposing any reciprocal obligation on the corporation. Fully two-thirds of the lobbyism, jobbery, and log-rolling, the fraud and trickery that are common to our State legislatures, is due to this power of creating private corporations.” —Ford, Citizens’ Manual vol. ii, p. 68.

[3] Mr. Hitchcock (from whose address I take the Ohio instance) adds that the Supreme Court of Ohio has held such evasions unconstitutional, but that they continue notwithstanding, the legislature, and the villages or cities, taking their chance.

[4] The Constitution of North Dakota (§ 70) expressly prohibits this evasion.

[5] For instance, it is sometimes provided that no bill shall be introduced within a certain period after the beginning or before the end of the session, so as to prevent bills from being smuggled through in the last days. This provision is evaded “by introducing a new bill after the time has expired when it may constitutionally be done, as an amendment to some pending bill, the whole of which, except the enacting clause, is struck out to make way for it. Thus, the member who thinks he may have occasion for the introduction of a new bill after the constitutional period has expired, takes care to introduce sham bills in due season, which he can use as stocks to graft upon, and which he uses irrespective of their character or contents. The sham bill is perhaps a bill to incorporate the city of Siam. One of the member’s constituents applies to him for legislative permission to construct a dam across the Wild Cat River. Forthwith, by amendment, the bill, entitled a bill to incorporate the city of Siam, has all after the enacting clause stricken out, and it is made to provide, as its sole object, that John Doe may construct a dam across the Wild Cat. With this title, and in this form it is passed; but the house then considerately amends the title to correspond with the purpose of the bill, and the law is passed, and the Constitution at the same time saved!” —Cooley, Constit. Limit., p. 169 note.

[6] A remarkable instance of the technical literalism with which the courts sometimes enforce constitutional restrictions is afforded by the fate of a recent liquor prohibition amendment to the Constitution of Iowa. This amendment had been passed by both houses of the state legislature in two successive legislatures, had been submitted to the people and enacted by a large majority, had been proclaimed by the governor and gone into force. It was subsequently discovered that one house of the first legislature had, through the carelessness of a clerk, neglected to “spread the Amendment, in full on its journal,” as prescribed by the constitution. The point being brought before the Supreme Court of Iowa, it was held that the amendment, owing to this informality, had not been duly passed, and was wholly void.

An illustration of the range which the action of courts may take in enforcing constitutional safeguards was well given by the Supreme Court of Wisconsin, when it held invalid a [gerrymandering] redistricting of the state (for elections to the state legislature), as being inconsistent with the provision of the constitution that districts should be reasonably equal.

[7] See p. 222 ante. The act was one for forcing state paper money into circulation by imposing a penalty, recoverable on summary conviction without a jury, on whoever should refuse to receive on the same terms as specie the bills of a state-chartered bank. No question of the United States Constitution could arise, because it did not yet exist. To these Rhode Island judges belongs the credit not only of having resisted a reckless multitude, but of having set one of the first examples in American history of the exercise of a salutary function. Their decision was that they had no jurisdiction.

[8] I quote from Mr. Hadley’s book on railroad transportation (through Dr. Hitchcock’s essay already referred to) the following account of the circumstances: “The Constitutional Convention of Illinois in 1870 made an important declaration concerning State control of railway rates, on the basis of which a law was passed in 1871 establishing a system of maxima. This law was pronounced unconstitutional by Judge Lawrence. The result was that he immediately afterwards failed of re-election, solely on this ground. The defeat of Judge Lawrence showed the true significance of the farmers movement [the so-called Granger movement]. They were concerned in securing what they felt to be their rights, and were unwilling that any constitutional barrier should be made to defeat the popular will. They had reached the point where they regarded many of the forms of law as mere technicalities. They were dangerously near the point where revolutions begin. But they did not pass the point. The law of 1873 avoided the issue raised by Judge Lawrence against that of 1871. Instead of directly fixing maxima, it provided that rates must be reasonable, and then provided for a commission to fix reasonable rates.” The courage of Judge Lawrence was therefore not thrown away; it cost him his place, but it served the people and vindicated the law.

In 1890, the executive committee of the Minnesota Farmers’ Alliance in passing resolutions demanding the abolition of the federal Supreme Court, which had recently held that the state legislature had no power to fix railroad freight rates, relieved their feelings by saying. “We call attention to the fact that the citizens of England, from whom we have largely derived our form of government, would not permit for one instant a bench of judges to nullify an Act of Parliament. There the people are properly omnipotent. . . . In our anxiety to protect the rights of property we have created a machine that threatens to destroy the rights of man.”

[9] There have of course been other instances in which judges have been impeached or removed; but I am here dealing only with those in which the ground of complaint was the declaring a legislative act to be invalid.

[10] The English Parliament found the tendency of members to slip away so strong that in the sixteenth century it enacted “that no knight of the shire or burgess do depart before the end of Parliament,” and inflicted on the member leaving without the permission of Mr. Speaker, the penalty of losing “all those sums of money which he should or ought to have had for his wages.”

[11] Thus the Constitution of Oregon, for instance, gives its members for forty days only. Texas is a little more liberal, for her constitution was content to reduce the pay after sixty days from $5 to $3 (now $2) per day, at which reduced rate members might apparently go on as long as they please. Nearly all the states which fix a limit of time are Southern or Western. The forty days’ session of Georgia may be extended by a two-thirds vote of an absolute majority of each house.

[14] So even in 1811 Josiah Quincy said in Congress: “Sir, I confess it, the first public love of my heart is the Commonwealth of Massachusetts. There is my fireside: there are the tombs of my ancestors.”

[15] It is however, also argued that there are some large states in which the mischievous action of the multitude of a great city is held in check by the steadier rural voters. If such states had been subdivided, the subdivision which happened to contain the great city would lie at the mercy of this multitude. The question has not taken practical shape, for no state has asked to be divided, though there was once a movement to divide Kansas into two states by a N. and S. line, and some Southern Californians have talked of seceding.

Texas is the only state which possesses (under the statute admitting her) a right to divide herself into several states without obtaining permission from Congress. She is big enough for four or five.

Hamilton’s reason seems to have been a fear that the states would be too strong for the national government.

[1] Many readers may find it better to skip this chapter until they have read those which follow (Chapters 53–56) upon the history, tenets, and present condition of the great national parties.

[2] Some topics, such as legislation relating to railways and to corporations generally, lie partly in one sphere, partly in the other, and much inconvenience has thence resulted. See Chapter 29 supra.

[3] Congress has of course power to impose, and has imposed, an excise upon liquor, but this is far from meeting the demands of the temperance party.

[4] The names of these factions, the changes they pass through, and the way in which they immediately get involved with the ambitions and antipathies of particular leaders, recall the factions in the Italian cities of the thirteenth and fourteenth centuries, such as the White and Black Guelfs of Florence in the time of Dante.

[5] In these miniature civil wars there was a tendency for the city folk to be on one side and the agriculturists on the other, a phenomenon which was observed long ago in Greece, where the aristocratic party lived in the city and the poor in the fields. In the sixth century B.C. the oligarchic poet Theognis mourned over the degradation of political life which had followed the intrusion of the country churls. The hostility of the urban and rural population sometimes recurs in Switzerland. The country people of the canton of Basel fought a bloody battle some years ago with the people of the city, and the little commonwealth had to be subdivided into two, Basel City and Basel Country.

[6] Similar feelings made the three last surviving Hanseatic free cities willingly resign their independence to become members of the new German Empire, because the sentiment of pan-Germanic patriotism had so overborne the old fondness for local independence, that no regret was felt in resigning part of the latter in order to secure a share in the fuller national life of the great German state.

[1] The total number of Indians in the United States (excluding Alaska) was returned in 1890 at 248,253, and in 1912 at 327,348.

[2] Revised Statutes of U.S. of 1878, § 1854: “The legislative power of every Territory shall extend to all rightful subjects of legislation not inconsistent with the Constitution and laws of the United States. But no law shall be passed interfering with the primary disposal of the soil; no tax shall be imposed on the property of the United States, nor shall the lands or other property of non-residents be taxed higher than the lands or other property of residents.”

§ 1889: “The legislative assemblies of the several Territories shall not grant private charters or especial privileges, but they may, by general incorporation acts, permit persons to associate themselves together” for various industrial and benevolent purposes specified. Other restrictions have been imposed by subsequent statutes.

[3] This applies to persons resident in Alaska and Hawaii.

[4] The Romans drew a somewhat similar distinction between the private rights of citizenship and the public rights, which included the suffrage and eligibility to office, but with them the distinction attached to the person; in the United States and the British Empire it is an affair of residence, and affects the suffrage only, not competence to fill an office. In the British general election of 1892 a distinguished Canadian statesman and a Parsi gentleman from Bombay were elected to the House of Commons, the former by an Irish and the latter by a London constituency, and other Canadians have sat in subsequent Parliaments.

[5] The so-called sagebrush plants are not species of what in England is called sage (Salvia) but mostly belong to the order Compositae, which is unusually strong in America. Something like a third of the total phaenogamous genera of the United States have been estimated to belong to it.

[6] A part of this large increase is of course due to the union of Oklahoma and Indian Territories in 1907.

[7] There were, in 1900, 13,000 and in 1910, 20,000 Indians, some of them settled and comparatively civilized. Of these, many inhabit the so-called “pueblos,” villages built on or excavated in rocks. They have preserved more traces of the primitive American culture than any other Indians in the United States.

[1] Boston continued to be a town governed by a primary assembly of all citizens till 1822; and even then the town meeting was not quite abolished, for a provision was introduced, intended to satisfy conservative democratic feeling, into the city charter granted by statute in that year, empowering the mayor and aldermen to call general meetings of the citizens qualified to vote in city affairs “to consult upon the common good, to give instructions to their representatives, and to take all lawful means to obtain a redress of any grievances.” Such primary assemblies are, however, never now convoked.

[2] In Maryland hundreds, which still exist in Delaware, were for a long time the chief administrative divisions. We hear there also of “baronies” and “town lands,” as in Ireland; and Maryland is usually called a “province,” while the other settlements are colonies. Among its judicial establishments there were courts of pypowdry (piè poudré) and “hustings.”

The hundred is a division of small consequence in southern England, but in Lancashire it has some important duties. It repairs the bridges; it is liable for damage done in a riot; and it had its high constable.

[3] The word Town, which I write with a capital when using it in the American sense, is the Icelandic tún, Anglo-Saxon tûn, German Zaun, and seems originally to have meant a hedge, then a hedged or fenced plot or enclosure. In Scotland (where it is pronounced “toon”) it still denotes the farmhouse and buildings; in Iceland the manured grass plot, enclosed within a low green bank or raised dyke, which surrounds the baer or farmhouse. In parts of eastern England the chief cluster of houses in a parish is still often called “the town.” In the North of England, where the parishes are more frequently larger than they are in the South, the civil divisions of a parish are called townships.

[4] I find in Massachusetts (census of 1910) one town (New Ashford) with only 92 inhabitants, and one (Brookline, a suburb of Boston) with 27,792, while Revere has 18,219. But both in this and other New England states most towns have a population of from 1,200 to 2,500.

[5] The presiding officer in the synods and assemblies of the Scottish Presbyterian Churches is still called the moderator. This is also the president’s title in the synods of the American Presbyterian churches, and in the councils of the Congregationalist and associations of the Baptist churches.

[6] See an interesting account of the town meeting sixty years ago in Mr. J. K. Hosmer’s Life of Samuel Adams, chap. xxiii. An instructive description of a typical New England town may be found in a pamphlet entitled The Town of Groton, by Dr. S. Green, late mayor of Boston.

[7] Mr. R. W. Emerson served in this capacity in his town, fulfilling the duty understood to devolve on every citizen of accepting an office to which the town appoints him.

[8] When a town reaches a certain population it is usually transformed by law into a city; but occasionally, while the city is created as a municipal corporation within the limits of a town, the town continues to exist as a distinct organization. A remarkable instance is furnished by the Town and City of New Haven, in Connecticut. New Haven was incorporated as a city in 1784. But it continued to be and is still a town also. Three-fourths of the area of the town and seventeen-eighteenths of its population are within the limits of the city. But the two governments remain completely distinct. The city has its mayor, aldermen, and common council, and its large executive staff. The town meeting elects its selectmen and other officers, 152 in all, receives their reports, orders and appropriates taxes, and so forth. Practically, however, it is so much dwarfed by the city as to attract little attention. Says Mr. Levermore: “This most venerable institution appears to-day in the guise of a gathering of a few citizens, who do the work of as many thousands. The few individuals who are or have been officially interested in the government of the town, meet together, talk over matters in a friendly way, decide what the rate of taxation for the coming year shall be, and adjourn. If others are present, it is generally as spectators rather than as participants. Even if Demos should be present in greater force, he would almost inevitably obey the voice of some well informed and influential member of the town government of his own party. But citizens of all parties and of all shades of respectability ignore the town meeting and school meeting alike. Not one-seventieth part of the citizens of the town has attended an annual town meeting; they hardly know when it is held. The newspapers give its transactions a scant notice, which some of their subscribers probably read. The actual governing force of the town is therefore an oligarchy in the bosom of a slumbering democracy. But the town is well governed. Its government carries too little spoil to attract those unreliable politicians who infest the city council. If the ruling junto should venture on too lavish a use of the town’s money, an irresistible check would appear at once. Any twenty citizens could force the selectmen to summon the town together, and the apparent oligarchy would doubtless go down before the awakened people.” — “The Town and City Government of New Haven,” in Johns Hopkins University Studies, Fourth Series.

The student of Roman history will find in this quaint survival of an ancient assembly some resemblance to the comitia curiata of Rome under the later Republic.

[9] The average population of a Massachusetts county is 240,450, the two smallest counties having only 4,504 and 2,962 respectively, the largest 669,915.

[10] In Connecticut the commissioners are appointed by the state legislature and have no taxing power. In Rhode Island there are none but judicial officers for the counties. In Vermont I find besides judges, a state attorney, high bailiff, and county clerk. In Massachusetts all judges are appointed by the governor.

[11] The chief items of county expenditure are those for judicial purposes, including the maintenance of buildings, and for roads and bridges. But in some states roads, except the few state roads, are maintained by the town.

[12] Georgia, with 59,475 square miles, has 137 counties; Alabama, with 52,250 square miles, has 66. Speaking generally, the newer states have the larger counties, just as in England the smallest parishes are in the first settled parts of England, or rather in those parts where population was comparatively dense at the time when parishes sprang up.

[13] Sometimes, as in Louisiana, the sheriff is also tax collector.

[14] In some states some of these officials are nominated by the governor. In Florida the governor appoints even the board of five county commissioners. The other county officers, viz., clerk of circuit court, sheriff, constables, assessor of taxes, tax collector, treasurer, superintendent of public instruction, and surveyor, are elected by the people for two or four years.

[15] In South Carolina the parish was originally a pretty strong local unit, but it withered away as the county grew under the influence of the plantation system. The word “parish” is in America now practically equivalent to “congregation,” and does not denote a local area.

[16] Virginia has moved in this direction. See Mr. Gerge E. Howard’s treatise, Local Constitutional History of the United States, and Mr. Fairlie’s recent book on Local Government in Counties, Towns, and Villages.

[17] “Township” is the term most frequently used outside New England, “town” in New England.

[18] See Constitution of 1870, art. x, § 5, where a provision is added that any county desiring to forsake township organization may do so by a vote of the electors in the county, in which case it comes under the county system prescribed in the following sections of that article.

[19] Illinois has 102 counties, with an average population, in 1910, of 55,000; Iowa 99 counties, with an average population in 1910 of 22,675. The average population of the 40 counties of England (excluding Wales) was (in 1901) 548,000.

[20] There are English analogies to all these powers, but in England some of them are or were exercised in the manor court and not in the vestry.

[21] The sheriff is the executive officer of the higher courts, with responsibility for the peace of the county. In case of riot he may call out the county militia.

[22] Ordinary police work, other than judicial, is not a county matter, but left to the township with its constables.

[23] “Local Government in Illinois,” by Albert Shaw, LL.D., in Johns Hopkins University Studies, Baltimore, 1883.

[24]Local Government in Michigan, by E. W. Bemis, in Johns Hopkins University Studies, Baltimore, 1883.

[25] In Switzerland the rural Gemeinde or Commune is the basis of the whole republican system of the canton. It has charge of the police, the poor, and schools, and owns land. It has a primary assembly, meeting several times a year, which discusses communal business and elects an administrative council. It resembles in these respects an American town or township, but is subject for some purposes to the jurisdiction of an official called the Statthalter, appointed by the canton for a district comprising a number of communes.

[26] “In townships of 500 to 600 voters an attendance of 10 to 20 is often reported, while in many cases the business is transacted by members of the township board. Under these conditions there can be little of the active popular debate, which makes the New England meeting an interesting object of study.” Fairlie, Local Government in Counties, Towns, and Villages, p. 170.

[27] Mr. Bemis says: “Inasmuch as many of the thousand or more townships of a State lack the political education and conservatism necessary for perfect self-control, since also many through lack of means cannot raise sufficient money for roads, bridges, schools, and the poor, a higher authority is needed, with the power of equalizing the valuation of several contiguous towns, of taxing the whole number for the benefit of the poorer, and of exercising a general oversight over township expenses. . . . All educators earnestly advocate county and State control of schools, that there may be uniformity of methods, and that the country districts, the nurseries of our great men in the past, may not degenerate. But two influences oppose: the fear of centralization on the part of the small towns which need it most, and the dislike of the rich cities to tax themselves for the country districts.” — Local Government in Michigan, ut supra, p. 18.

[28] Justices are elected by the people for five years, and commissioned by the governor of the state.

[29]Our Government Text-Book for Iowa Schools, pp. 21–23.

[30] See Constitution of Pennsylvania of 1873, arts. XIV, XIII, and V.

The average population of a county in Pennsylvania was, in 1910, 114,405. There are sixty-seven.

[1] Professor Macy, Our Government, an admirable elementary sketch, for school use, of the structure and functions of the federal and states governments.

[2] Few things in English history are better worth studying, or have exercised a more pervading influence on the progress of events, than the practical disappearance from rural England of that commune or Gemeinde which has remained so potent a factor in the economic and social as well as the political life of France and Italy, of Germany (including Austrian Germany) and of Switzerland. If Englishmen were half as active in the study of their own local institutions as Americans have begun to be in that of theirs, we should have had a copious literature upon this interesting subject.

In England the primary meeting died out in the form of the parish vestry, but in 1894 a system of parish meetings and councils was created by statute and the primary meeting thereby restored in a new form to meet the now more democratic conditions of the country. See Chapter 39 ante.

[3] However, the parish constables and way-wardens in some places continue to be elected by popular vote; and the manor courts and courts leet (still surviving in places) were semi-popular institutions.

In counties the coroner continued to be elected by the freeholders, but in 1888 the appointment was transferred by statute to the newly created county councils.

[4] See also Chapter 43 on state finance. These provisions are of course applied to cities also, which need them even more. They vary very much in their details, and in some cases a special popular vote is allowed to extend the limit.

In New York State, for instance, no county or city can incur a debt bringing its total indebtedness up to more than 10 per cent of the assessed valuation of its real estate, and its taxation, beyond what is required to pay interest on the debt, shall not exceed 2 per cent of the assessed valuation of its real and personal estate.

[5] Sometimes, however, they are paid at the county seat.

[6] As to this and the Boards of Equalization see Chapter 43 ante.

[7] Of course what is really the same property may be taxed in more than one place, e.g., a mining company may be taxed as a company in Montana, and the shares held by individual proprietors be possibly also taxed in the several states in which these shareholders reside.

[8] The total expenditure on public schools in the United States is stated by the U.S. Commissioner of Education in his annual report for 1910 as being, in 1909, $401,397,747.

[9] Students of economic science will hear without surprise that in some of the states which have the largest permanent school fund the effect on the efficiency of the schools, and on the interest of the people in them, has been pernicious. In education, as well as in eleemosynary and ecclesiastical matters, endowments would seem to be a very doubtful benefit.

[10] Expenditure has, however, greatly risen. In the Massachusetts town of Quincy, for instance, the average annual levy of taxation between 1792 and 1800 was $1,000, about $1 to each inhabitant taxpayer; it was in 1892, $12.57. In 1792 the education of each child in the public school cost $3 per annum: in 1892 it cost $16 (The Centennial Milestone, by Charles F. Adams).

[11] In a few Western states the town board has (like the New England selectmen) a limited taxing power, as well as administrative duties.

[12] In Virginia there used to be a county feeling resembling that of England, but this vanished in the social revolution that has transformed the South.

[13] In some parts of New England and New York, and conspicuously in New Jersey, there has been of late years a great improvement in the roads, and several states have constructed state roads equal to those of France.

[14] The American sheriff remains something like what the English sheriff was before his wings were clipped by legislation early in the nineteenth century. Even then he mostly acted by deputy. The justices and the county police have since that legislation largely superseded his action.

[15] Or, in states where there are no townships, some corresponding officer.

[16] As to recent experiments, see p. 443 ante, state police.

[17] In some states there are poor-law superintendents, and usually state institutions for particular classes of paupers, e.g., pauper lunatics.

[18] Sanitation, however, has received much attention in the cities, and the death rate has in many been greatly reduced.

[19] Though the school district frequently coincides with the township, it has generally (outside of New England) distinct administrative officers, and when it coincides it is often subdivided into lesser districts.

[20] In some states provision is made for the combination of several school districts to maintain a superior school at a central spot.

[21] Governor Sir William Berkeley, however, was among the Virginians who in 1660 subscribed for the erection in Virginia of a “a colledge of students of the liberal arts and sciences.” As to elementary instruction he said that Virginia pursued “the same course that is taken in England out of towns, every man according to his ability instructing his children. We have forty-eight parishes, and our ministry are well paid, and, by consent, should be better if they would pray oftener and preach less.” — The College of William and Mary, by Dr. H. B. Adams.

[22] The percentage of illiterate persons at least 10 years of age to the whole population of continental United States was, in 1900, 10.7, and in 1910, 7.7 (of white population, 5.0 of Negroes, 30.4); it was highest in Louisiana, 29.0, and South Carolina, 25.7; lowest in Iowa, 1.7; and Nebraska and Oregon, each 1.9.

It has recently been proposed in Congress to reduce the surplus in the U.S. treasury by distributing sums among the states in aid of education, in proportion to the need which exists for schools, i.e., to their illiteracy. The objections on the score of economic policy, as well as of constitutional law, are so obvious as to have stimulated a warm resistance to the bill.

[23] Sometimes the party “ticket” leaves a blank space for the voter to insert the name of the candidates for whom he votes for township offices.

[24] City taxes, however, and the local school tax, are sometimes paid separately. Some states give the option of paying half-yearly or quarterly; and many allow discount upon payment in advance.

[25] The functions are not perhaps so numerous as in England, but this is because fewer functions are needed. The practical competence of local authorities for undertaking any new functions that may become needed, and which the state may entrust to them, is deemed sufficient.

[26] In Rhode Island it was the towns that made the state.

[27] This tendency is visible not least as regards the systems of educational administration. The National Teachers’ Association of the United States not long since prepared an elaborate report on the various existing systems, and the more progressive states are on the alert to profit by one another’s experience.

[1] The term “city” denotes in America what is called in England a municipal borough, and has nothing to do with either size or antiquity. The constitution or frame of government of a city is called its charter and is given by a state statute, general or special, or else is enacted by the city itself under powers given to it by the state.

[2] American municipalities have, of course, never been, since the Revolution, close corporations like most English boroughs before the Act of 1835.

[3] This statement would have been universally true before the recent adoption in a constantly increasing number of cities of the plan of government by a small board of commissioners.

[4] American municipal governments are of course subject to three general rules: that they have no powers other than those conferred on them by the state, that they cannot delegate their powers, and that their legislation and action generally is subject to the Constitution of the United States as well as to the constitution and statutes of the state to which they belong.

[5] In Chicago and San Francisco the mayor sits in the legislature.

[6] In New York and Boston the mayor appoints and removes heads of departments, and the tendency is generally toward an increase of his powers.

[7] Much complexity has arisen from the practice of giving special charters to particular cities, or passing special bills relating to them, and there is now a tendency to empower cities to make their own charters.

[8] There are some points of resemblance in this system to the government of English cities, and especially of London. The English common councils elect certain officials and manage their business by committees. In the ancient City of London the sheriffs and chamberlain are elected by the liverymen. Note, however, that in no English borough or city do we find a two-chambered legislature, nor (except as last aforesaid in London) officials elected by popular vote, nor a veto on legislation vested in the mayor. London (outside the ancient city which retains a separate government) is now governed by an elected assembly called the county council, and by the elected councils of the boroughs into which it is divided.

[9] Some large cities, however (e.g., Greater New York, Chicago with its thirty-six aldermen, San Francisco with its twelve supervisors), have only one chamber.

[10] In some few cities, among which is Chicago and (as respects police magistrates and school directors) Philadelphia, the plan of minority representation has been to some extent adopted by allowing the voter to cast his vote for two candidates only when there are three places to be filled. It was tried in New York, but the State Court of Appeals held it unconstitutional. So far as I can ascertain, this method has in Philadelphia proved rather favourable than otherwise to the “machine politicians,” who can rely on their masses of drilled voters, obedient to orders.

[11] Sometimes the councilman is required by statute to be a resident in the ward he represents.

[12] Sometimes the police justices are nominated by the mayor.

[13] “During the session of the legislature in March 1885 this argument was put forward in answer to a Democratic plea for representation upon the city court bench. ‘The Democrats possess all the other offices in New Haven. It’s only fair that the Republicans should have the city court.’ Each party accepted the statement as a conclusive reason for political action. It would be gratifying to find the subject discussed upon a higher plane, and the incumbents of the offices who had done well continued from term to term without regard to party affiliations. But in the present condition of political morals, the existing arrangements are probably the most practicable that could be made. It goes without saying that country districts are, as a rule, more deserving of political power than are cities. If the city judges were locally elected upon the general party ticket, the successful candidates would often be under obligations to elements in the community which are the chief source and nurse of the criminal class—an unseemly position for a judge.” —Mr. Charles H. Levermore in his interesting sketch of the Town and City Government of New Haven, p. 77.

[14] On the other hand, there are cities which hope to draw out a larger vote, and therefore obtain a better choice, by putting their municipal elections at the same time as the state elections.

[15] There are many varieties of the plan, the number of commissioners being sometimes larger than four. In some cities one commissioner is elected annually, so that the whole board never goes out of office together.

[16] Though sometimes, as in Baltimore, the city legislature appoints a Board of Education. Unhappily, in some cities education is “within politics,” and, as may be supposed, with results unfavourable to the independence and even to the quality of the teachers.

[17] So in Baltimore and St. Louis.

[18] Now under the new charter of Greater New York there is one commissioner appointed by the mayor.

[1]Municipal Development of Philadelphia, by Messrs. Allinson and Penrose, p. 275.

[4] These totals of 1908 (census report of 1905 brought up to 1908 from city records) include all the ordinary expenditures, but not sums paid for investment securities or redemption of municipal debt.

[5] See Part III and especially Chapters 62 and 63. See also the chapters in Vol. II on the Tammany Ring in New York City, and the Gas Ring in Philadelphia. The full account given in those chapters of the phenomena of municipal misgovernment in the two largest cities in the United States seems to dispense me from the duty of here describing those phenomena in general.

[6] The commission, of which Mr. W. M. Evarts (now senator from New York) was chairman, included some of the ablest men in the state, and its report, presented 6th March 1877, may be said to have become classical. Much of it is as applicable now to great cities as it was in 1876; and I quote it not only in respect of its historical value, but also because no abler presentment of the facts has since appeared.

[7] The New York commissioners say: “The magnitude and rapid increase of this debt are not less remarkable than the poverty of the results exhibited as the return for so prodigious an expenditure. It was abundantly sufficient for the construction of all the public works of a great metropolis for a century to come, and to have adorned it besides with the splendours of architecture and art. Instead of this, the wharves and piers are for the most part temporary and perishable structures; the streets are poorly paved; the sewers in great measure imperfect, insufficient, and in bad order; the public buildings shabby and inadequate; and there is little which the citizen can regard with satisfaction, save the aqueduct and its appurtenances and the public park. Even these should not be said to be the product of the public debt; for the expense occasioned by them is, or should have been, for the most part already extinguished. In truth, the larger part of the city debt represents a vast aggregate of moneys wasted, embezzled, or misapplied.”

[8] In Philadelphia someone has observed that there were four distinct and independent authorities with power to tear up the streets, and that there was no authority upon whom the duty was specifically laid to put them in repair again.

[9] Mr. Seth Low has well remarked in an address on municipal government: “Greatly to multiply important elective officers is not to increase popular control, but to lessen it. The expression of the popular will at the ballot-box is like a great blow struck by an engine of enormous force. It can deliver a blow competent to overthrow any officer, however powerful. But, as in mechanics, great power has to be subdivided in order to do fine work, so in giving expression to the popular will the necessity of choosing amid a multitude of unimportant officers involves inevitably a loss of power to the people.”

[10] The Municipal Reform Movement continues active in certain directions. Important economics have been effected in New York, and an organization called the Bureau of Municipal Research works energetically for reducing the cost and increasing the efficiency of city administration.

See further as to New York municipal government the observations of Mr. Seth Low, ex-mayor of Greater New York, in Chapter 52.

[11] Though, as the commission pointed out (Report, p. 33), the principle that no one should vote upon any proposition to raise a tax or appropriate its proceeds unless himself liable to be assessed for such tax, was one generally applied in the village charters of the state of New York, and even in the charters of some of the smaller cities. The report repels the charge that this proposal is inconsistent with the general recognition of the value of universal suffrage by saying, “No surer method could be devised to bring the principle of universal suffrage into discredit and prepare the way for its overthrow than to pervert it to a use for which it was never intended, and subject it to a service which it is incapable of performing. . . . To expect frugality and economy in financial concerns from its operation in great cities, where perhaps half of the inhabitants feel no interest in these objects, is to subject the principle to a strain which it cannot bear. All the friends of the system should unite in rescuing it from such perils.” —Page 40.

[12] Another disadvantage is that such restriction may sometimes compel a public improvement to be executed piecemeal which could be executed more cheaply if done all at once. See Chapter 43.

[13] For a good example of these provisions see the charter of the city of Los Angeles, as revised and amended up to 1909.

In 1909 a demand for a recall vote for the office of mayor was submitted in Los Angeles, whereupon the existing incumbent of that office disappeared and a successor was elected.

A warm advocate of the recall, who has had wide experience of municipal misrule, has stated the case for that remedy as follows:

“From twenty-five to forty per cent of the income of most of our large cities is dissipated by extravagance, mismanagement and corruption, and (what is worse) the moral tone of the citizenship lowered thereby.

“This condition results from the rule of political machines.

“These machines are created and maintained by public utility corporations, liquor interests, gamblers and other disreputable elements of society aided by some eminently respectable business men who receive special privileges through reason of the existence of corrupt government, and by a large number of honest voters who, unfortunately, are narrow partisans always voting the straight ticket. All these, however, constitute a minority of the entire electorate, but owing to a complicated system of nominations, perfect organization, and enormous corruption funds supplied principally by public utility corporations, the machine is kept in power despite the fact that the majority of the electorate is honest and desires good government.

“Various panaceæ —increased power of mayors, civil service reform, election of councilmen at large, etc.—are of little avail, for with the Machine in full control these measures give it increased power. Even the election of good men to office (when through herculean efforts this is spasmodically achieved) frequently fails to produce any marked effect, because these men often cease to be good.

“This condition then confronts us: a minority controlling corruptly, while a majority of the electorate is honest. The remedy is plain and very simple. If it is desired to have a true representative and an efficient and honest government, give to the honest majority of the electorate the power to initiate legislation which their legislative bodies may refuse: this is the Initiative. Give to the honest majority the power to veto the undesired acts of their legislators; this is the Referendum, and give to the same honest majority the power to discharge from office at any time any inefficient or incompetent officer: this is the Recall.”

[14] Of about 160 cities with a population exceeding 20,000, water supply is in 59 left to private corporations, and in 101 belongs to the municipality.

See upon this subject the Report (1907) of the Civic Federation Committees on municipal ownership.