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

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.

[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.