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Viscount James Bryce, The American Commonwealth, vol. 1 [1888]

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Viscount James Bryce, The American Commonwealth, with an Introduction by Gary L. McDowell, 2 vols (Indianapolis: Liberty Fund, 1995). http://oll.libertyfund.org/titles/809

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About this Title:

In Democracy in America (1835) the Frenchman Alexis de Tocqueville interpreted American society through the lens of democratic political theory. A half-century later the Scotsman James Bryce examined “the institutions and the people of America as they are.” Bryce presented his findings in The American Commonwealth, first published in London in three volumes in 1888. This new Liberty Fund two-volume edition is based on the updated third edition of 1941, which encompassed all the changes, corrections, and additions that Bryce entered into the previous editions. Its expanded appendix includes Bryce’s 1887 essay, “The Predictions of Hamilton and De Tocqueville,” and contemporaneous (1889) reviews of The American Commonwealth by Woodrow Wilson and Lord Acton.

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The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.

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This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.

Table of Contents:

Edition: current; Page: [i] Edition: current; Page: [ii]
lf0004-01_figure_001 r.25
James Bryce
Edition: current; Page: [iii]
James Bryce
The American Commonwealth
With an Introduction by Gary L. McDowell
volume i
Liberty Fund
Indianapolis
Edition: current; Page: [iv]

This book is published by Liberty Fund, Inc., a foundation established to encourage study of the ideal of a society of free and responsible individuals.

The cuneiform inscription that serves as our logo and as the design motif for our endpapers is the earliest-known written appearance of the word “freedom” (amagi), or “liberty.” It is taken from a clay document written about 2300 b.c. in the Sumerian city-state of Lagash.

Frontispiece: James Bryce, Regius Professor of Civil Law, Oxford University, 1870–93. From H. A. L. Fisher, James Bryce: Viscount Bryce of Dechmont, O.M., vol. 1 (London: Macmillan, 1927).

Front cover: Declaration of Independence in Congress, at the Independence Hall, Philadelphia, July 4th, 1776 (detail) by John Trumbull, 1786–1819. United States Capitol Art Collection. Photograph courtesy Architect of the Capitol.

© 1995 by Liberty Fund, Inc. All rights reserved. Printed in the United States of America.

Liberty Fund, Inc.

8335 Allison Pointe Trail, Suite 300

Indianapolis, Indiana 46250–1684

Library of Congress Cataloging-in-Publication Data

Bryce, James Bryce Viscount, 1838–1922.

The American commonwealth / James Bryce.

p. cm.

Includes bibliographical references and index.

ISBN 0–86597–116–1 (set : hardcover : alk. paper).—ISBN

0–86597–117-X (set : pbk. : alk. paper).—ISBN 0–86597–118–8 (vol.

1 : hardcover : acid-free paper).—ISBN 0–86597–119–6 (vol. 1 :

paperback : acid-free paper).—ISBN 0–86597–120-X (vol. 2 :

hardcover : acid-free paper).—ISBN 0–86597–121–8 (vol. 2 :

paperback : acid-free paper)

1. United States—Politics and government. 2. State governments—

United States. 3. United States—Social conditions. I. Title.

JK246.B9 1995

320.473—dc20 95-11187

02 01 00 99 98 C 6 5 4 3 2

01 00 99 98 95 P 5 4 3 2 1

Edition: current; Page: [v]

To my friends and colleagues

Albert Venn Dicey

Thomas Erskine Holland

Edition: current; Page: [vi] Edition: current; Page: [vii]
contents Contents fpage="vii" lpage="x"

Contents

  • VOLUME I

  • Introduction xi
  • Publisher’s Note xxxi
  • Preface to the First Edition xxxiii
  • Preface to the Edition of 1910 xxxv
  • Note to the Edition of 1914 xxxvi
  • List of Presidents xxxvii
  • Dates of Some Remarkable Events in the History of the North American Colonies and United States xxxviii
  • Area, Population, and Date of Admission of the States xxix
  • 1 Introductory 1
  • part i
  • The National Government

  • 2 The Nation and the States 13
  • 3 The Origin of the Constitution 17
  • 4 Nature of the Federal Government 28
  • 5 The President 34
  • 6 Presidential Powers and Duties 47
  • 7 Observations on the Presidency 62
  • 8 Why Great Men Are Not Chosen Presidents 69Edition: current; Page: [viii]
  • 9 The Cabinet 76
  • 10 The Senate 87
  • 11 The Senate as an Executive and Judicial Body 96
  • 12 The Senate: Its Working and Influence 101
  • 13 The House of Representatives 113
  • 14 The House at Work 129
  • 15 The Committees of Congress 140
  • 16 Congressional Legislation 150
  • 17 Congressional Finance 158
  • 18 The Relations of the Two Houses 166
  • 19 General Observations on Congress 171
  • 20 The Relations of Congress to the President 187
  • 21 The Legislature and the Executive 193
  • 22 The Federal Courts 204
  • 23 The Courts and the Constitution 215
  • 24 The Working of the Courts 232
  • 25 Comparison of the American and European Systems 246
  • 26 General Observations on the Frame of National Government 264
  • 27 The Federal System 276
  • 28 Working Relations of the National and the State Governments 287
  • 29 Criticism of the Federal System 302
  • 30 Merits of the Federal System 310
  • Supplementary Note on the Federal System 317
  • 31 Growth and Development of the Constitution 320
  • 32 The Amendment of the Constitution 324
  • 33 The Interpretation of the Constitution 332
  • 34 The Development of the Constitution by Usage 348
  • 35 The Results of Constitutional Development 356
  • part ii
  • The State Governments

  • 36 Nature of the American State 365
  • 37 State Constitutions 379
  • 38 The Development of State Constitutions 400Edition: current; Page: [ix]
  • 39 Direct Legislation by the People 412
  • 40 State Governments: The Legislature 427
  • 41 The State Executive 442
  • 42 The State Judiciary 450
  • 43 State Finance 460
  • 44 The Working of State Governments 474
  • Note on Recent Tendencies of Legislation 492
  • 45 Remedies for the Faults of State Governments 493
  • 46 State Politics 507
  • Note on Developments in State Government 518
  • 47 The Territories 519
  • 48 Local Government 529
  • 49 Observations on Local Government 549
  • 50 The Government of Cities 559
  • 51 The Working of City Governments 570
  • 52 An American View of Municipal Government in the United States 585
  • Appendix

  • On Constitutional Conventions 606
  • What the Federal Constitution Owes to the Constitutions of the Several States 609
  • Extracts from the Rules of the Senate 613
  • Private Bills 615
  • The Lobby 618
  • Constitution of the Confederate States, 1861–65 623
  • The Federal Constitution of Canada 625
  • The Dartmouth College Case 626
  • Articles of Confederation, 1781–88 628
  • Constitution of the United States 635
  • Extracts from the Constitution of the State of Oklahoma 652
  • Extracts from the Constitution of the State of California 679Edition: current; Page: [x]
  • volume ii

  • part iii The Party System
  • part iv Public Opinion
  • part v Illustrations and Reflections
  • part vi Social Institutions
  • Appendixes
  • Index
Edition: current; Page: [xi]
introduction Introduction fpage="xi" lpage="xxx"

Introduction

He knew us better than we know ourselves, and he went about and among us and gave us the boon of his illuminating wisdom derived from the lessons of the past.

Chief Justice William Howard Taft

James Bryce’s The American Commonwealth is a classic work, not only of American politics but of political science. Eschewing the theoretical depths of democracy that Alexis de Tocqueville had plumbed, and lacking the partisan purposes for which Alexander Hamilton and his colleagues had penned The Federalist, Bryce sought to capture the America of his time, to present “within reasonable compass, a full and clear view of the facts of today.” 1 As Bryce’s biographer would later put it, The American Commonwealth “was a photograph taken and exhibited by a political philosopher, not a history, not a picture of what was, not an account of how it had come to be.” 2 But, as with photographs that aspire to art, the more one studies Bryce’s snapshot of a long-vanished America, the more one sees.

Bryce’s fascination with America began in earnest on his first visit to the United States in 1870. It is worth remembering that the country he first saw was only five years past the assassination of Abraham Lincoln and but a year after the first transcontinental railway had been completed; it would be another seven years before the last of the federal troops of ReconstructionEdition: current; Page: [xii] were finally withdrawn from the South in 1877. The America of which Bryce first took note was a geographically sprawling society kept only loosely in touch by telegraph and newspapers—telephones and radios being still decades away.

When The American Commonwealth appeared in 1888, America was the youngest nation in a world still defined by ancient orders. The British Empire bustled beneath Victoria’s scepter and Russia creaked beneath the feudal splendor of Tsar Alexander III. The devastation of the Great War and the loss of innocence it would bring was more than a quarter of a century away; Lenin was but a schoolboy of eighteen, and Hitler would not be born until 1889.

The America of Bryce’s observations has long since passed; indeed, it was already gone by the time of his death in 1922. When he first published The American Commonwealth, the population of the entire country, then only thirty-eight states strong, was a mere sixty million; New York took the lead with 5,082,871, while California boasted a meager 864,694 spread across its 155,980 square miles. Nevada peaked at 62,266 isolated souls. Dakota (which would be divided the next year into North Dakota and South Dakota), Wyoming, Montana, Idaho, Washington, Utah, New Mexico, and Arizona were all still territories; and Oklahoma was Indian Territory, not to become a state until 1907.

By the end of Bryce’s life, the 1920 census had sketched a nation with a population of 105,710,620 (not including the territories of Alaska and Hawaii) divided among forty-eight states. New York’s population had nearly doubled to 10,385,000; California’s had quadrupled to 3,427,000. Even Nevada had grown to 77,000. By 1920, America was an increasingly urban nation with problems Bryce could not have envisioned when he began writing The American Commonwealth in 1884.3

Demographic changes were not all; nor were they the most important changes. Constitutionally and politically, The American Commonwealth of 1922 was much changed from that of the 1880s. Between the publication of the first edition of The American Commonwealth and Bryce’s death there had been four constitutional amendments, three serious and one frivolous. In addition to the ill-fated 18th Amendment prohibiting intoxicating liquors (repealed by the 21st Amendment in 1933), the fundamental structure of the Constitution was altered by allowing the income tax (16th AmendmentEdition: current; Page: [xiii] in 1913), by providing for the direct election of Senators (17th Amendment, also in 1913), and by giving women the right to vote (19th Amendment in 1920). The politics of the Gilded Age that Bryce first chronicled had passed into the Progressive Era, and with that passage had come a plethora of social reform legislation. The creation of the Interstate Commerce Commission in 1887 had been but a foreshadowing of the coming age of national regulation: the Sherman Anti-Trust Act (1890); the Pure Food and Drug Act (1906); and the Child Labor Act (1916), among many others, quickly followed.

The America that Bryce first saw was also a nation of buoyant optimism, a country fairly bursting with the democratic zeal and commercial impatience Tocqueville had celebrated half a century earlier. Like Tocqueville before him, but for different reasons, Bryce saw in America more than America. “The institutions of the United States,” he wrote, “are something more than an experiment, for they are believed to disclose and display the type of institutions towards which, as if by a law of fate, the rest of civilized mankind are forced to move, some with swifter, others with slower, but all with unresting feet.” The United States was a nation of “enormous and daily increasing influence.” 4 It was essential, Bryce believed, that the world be given a clear account of what made up this robust and rambunctious republic. For good or ill, America was simply the most exceptional nation in the history of the world. And James Bryce was just the man to capture that exceptionalism in all its glory.

I

James Bryce was a Scotsman of sturdy Presbyterian stock, born on May 10, 1838, in Belfast, Ireland. In 1846 the family moved from its beloved Ulster when Bryce’s father took up duties back in Scotland at the High School in Glasgow. From his earliest days, young James was consumed by his curiosity about natural history, geography, and politics. When he turned sixteen, after his high school studies in Glasgow and, for a period, back in Belfast, Bryce matriculated at Glasgow University, where he spent three years steeped in the study of the classics, logic, and mathematics. Glasgow was “deficient” when it came to offering the atmosphere of intellectual camaraderie students would enjoy in Oxford or Cambridge; yet Bryce would later recall “not a few long arguments over the freedom of the will and other metaphysical topics to which the Scottish mind was prone.” Moreover,Edition: current; Page: [xiv] there were occasions aplenty for “an incessant sharpening of wits upon one another’s whetstones.” 5 When he left Glasgow in 1857, Bryce was more than ready for the illustrious academic career that awaited him at Oxford.

When Bryce went up to Oxford to stand for a scholarship at Trinity College in May 1857, he found himself confronted by the demands of the Church of England. The young Scots Presbyterian could not bring himself to sign the Thirty-nine Articles of the Established Church, as was required of all Trinity scholars. Better to forego an Oxford education and all the advantages it would bring, Bryce believed, than to turn his back on the faith of his fathers and submit to the Anglican sacrament; to have done so would have been “dishonourable.” Bryce persevered “in the cause of liberty and dissent” with an eye toward breaking up the “obnoxious statute altogether.” When he finally succeeded in winning the scholarship without agreeing to the Thirty-nine Articles, Bryce’s stance won praise as nothing less than “the triumph of liberalism in Oxford.” Even so, Bryce was never awarded his M.A. because of his refusal; he did, however, earn his B.A. and a D.C.L.6

At Oxford, Bryce distinguished himself as an extraordinary student, sweeping up first-class degrees and an assortment of scholarly honors in his academic wake. Having taken his degree from Trinity in 1862, Bryce won a fellowship in Oriel College, a position that would allow him the flexibility of pursuing an Oxford academic career or being called to the bar in London. Soon after beginning to teach in Oxford, Bryce despaired that the place was “dolorous,” lacking any semblance of “motion and progress.” In time, Oxford would prove too stultifying a place for the young scholar, once described by his friend and colleague Albert V. Dicey as “the life of our party.” 7

London beckoned. By 1864, Bryce would insist that the capital was “the best place in the world for anyone to learn his own insignificance.” 8 With its sheer drudgery, the legal training to which he had turned in Lincoln’s Inn bored Bryce.

Streaming down Oxford Street, about 11 every morning to the Inn; then books, very dreary books it must be said, most of them interminable records of minute facts through which it is not easy to trace the course of a consistent and clarifying principle till 1:30; then lunch often in some man’s company and dropping about a little, then more books till 5:30; then dinner in the hall of Lincoln’s Inn,Edition: current; Page: [xv] disagreeable in this that one rises from table to walk two miles through narrow dirty streets homeward.9

It did not take long, however, for Bryce to look up from his legal studies and discover the great and vibrant intellectual universe that was London. His key to this world came with the publication of his first book, the revision of his essay for which he had been awarded the Arnold Prize at Oxford in 1862. When it appeared in 1864 as The Holy Roman Empire, it was quickly praised as having placed Bryce—then but twenty-six years old— “on a level with men who have given their lives to historical study.” 10 James Bryce, the public scholar, had begun his ascent.

In 1870 Bryce’s labors in Roman history, as well as the law, paid a substantial dividend. On April 11, William Gladstone wrote to him offering him the Regius Chair of Civil Law in the University of Oxford. Founded by King Henry VIII, the Regius Professorship had once been filled by the great civilian Alberic Gentile.11 Bryce would serve as Regius Professor of Civil Law until 1893, and from that illustrious post he contributed greatly to the revival of scholarly interest in Roman law and the civilian tradition in the British universities. The same year that Bryce assumed his professorship was the year that he and Dicey set off for the United States.

Bryce’s introduction to the nation he would come to know so well was enhanced through the efforts of Leslie Stephen, who kindly opened the very best doors for the two young Englishmen. Through Stephen, Bryce and Dicey met Charles Eliot, Ralph Waldo Emerson, Henry Wadsworth Longfellow, James Russell Lowell, and both the senior and the junior Oliver Wendell Holmes. The young English legal scholars were especially interested in conversations they had with the leading lights of the Harvard Law School, Christopher Columbus Langdell, James Barr Ames, and James Bradley Thayer.12 America was an intellectually vibrant place, and Bryce was smitten: “It was almost a case of love at first sight.” 13 Upon his return to England, Bryce committed his enthusiasm to print, publishing several articles on American society in English periodicals.14

Neither the practice of law nor the scholarly pursuits of Oxford wasEdition: current; Page: [xvi] sufficient to satisfy Bryce’s restless and robust nature. In 1880 he stood for Parliament and was elected as a member of the Liberal Party to represent Tower Hamlets in London’s East End. It was a poor and working-class constituency and gave Bryce the opportunity to learn a great deal about the social structures of Britain.15 But for all his gifts, he was not at the start a very distinguished legislator.

A certain lack of pliability, an insistent voice, a temperament somewhat deficient in the good-humoured composure which is one of the most valuable of Parliamentary gifts, a turn of phrase incisive rather than humorous, a prevailingly serious outlook coupled with the defect . . . of excessive indulgence in historical disquisitions and analogies, these little blemishes of manner and method concealed from his fellow Members of Parliament the remarkable qualities which belonged to him.16

Years of public service would wear away those rough edges until, in the end, Bryce was deemed “one of the best and more graceful public speakers in the country.” 17 Yet in his early political career, he was often seen, as his more radical parliamentary critic Joseph Chamberlain disparagingly dubbed him, as the “professor.”

It was during these busy years as lawyer, scholar, and Member of Parliament that Bryce began to focus in a serious way on what would become his greatest legacy. He returned to the United States for his second visit in 1881, during which he crossed the continent and swept through the South. In the decade since his first visit, James Bryce had become a man of some renown in both the scholarly and the political worlds.18 In 1883 he returned for his third tour, and it was at that point that he began assiduously to collect material for The American Commonwealth, to sort through the mass of details he assembled, and to draw conclusions worth reporting. The more he learned, the more selective he became. “When I first visited America eighteen years ago,” he warned his readers in the introduction to The American Commonwealth, “I brought home a swarm of bold generalizations. Half of them were thrown overboard after a second visit in 1881. Of the half that remained, some were dropped into the Atlantic when I returned across it after a third visit in 1883–84: and although the two later journeys gave birth to some new views, these views are fewer and moreEdition: current; Page: [xvii] discreetly cautious than their departed sisters of 1870.” That caution manifested itself in an approach that was coolly analytical. “I have striven,” Bryce insisted, “to avoid the temptations of the deductive method, and to present simply the facts of the case, arranging and connecting them as best I can, but letting them speak for themselves rather than pressing upon the reader my own conclusions.” Bryce saw himself as a chronicler, a reporter, not as a political philosopher; it would be far better if his readers created grand theories from the facts he presented than if he presented them with “theories ready made.” 19 It was precisely such “elevated thinking” and grand “speculative views of democracy” which, in Bryce’s view, had rendered Tocqueville’s Democracy in America something less than a practical treatise for men of the real world. It was for this reson that Bryce endeavored to shun the abstract in favor of the concrete.20

The differences between Democracy in America and The American Commonwealth are immediately seen. Whereas Tocqueville saw fit to spend but a single chapter on state and municipal governments, a mere 38 pages, Bryce devoted seventeen chapters, 255 densely packed pages, to the same topic. Similarly, on political parties, Tocqueville provided yet another single chapter, and this no more than 6 pages. Bryce, on the other hand, offered twenty-three chapters totalling 243 pages. And when it came to the structure and functions of the national government, Bryce produced a staggering 392 pages in thirty-four chapters; Tocqueville mustered only 75 pages in four chapters.

II

One cannot fully appreciate either Bryce’s scholarly objective or his literary achievement without first understanding his rejection of Tocqueville. The greatest weakness of Democracy in America, in Bryce’s judgment, was that it was decidedly unscientific, filled as it was with the Frenchman’s moral musings about democracy generally. Tocqueville himself had confessed asEdition: current; Page: [xviii] much: “I admit that I saw in America more than America; it was the shape of democracy itself which I sought, its inclinations, character, prejudices, and passions; I wanted to understand it so as at least to know what we have to fear or hope therefrom.” 21 Such a venture as that undertaken by Tocqueville led inevitably to “fanciful” pictures being drawn, “plausible in the abstract . . . [but] unlike the facts which contemporary America sets before us.” Bryce’s alternative was to “bid farewell to fancy” and endeavor to see things as they actually were in nineteenth-century America.22 Specificity, not generalization, was what was demanded; empiricism was the essence of Bryce’s science of politics.23

When and where Bryce first came across the works of Tocqueville is not clear. However, by the time of his third trip to the United States in 1883, he was sufficiently familiar with Democracy in America to conduct a seminar at Johns Hopkins University under the direction of Professor Herbert Baxter Adams. Adams’s graduate history seminar was a preeminent academic gathering, and among the students in Bryce’s class were John Dewey, John Franklin Jameson, and Woodrow Wilson.24 The seminar focused on Democracy in America; the concern was Tocqueville’s interpretation of America and his predictions about democratic government. Bryce pushed his students to question the assumptions that lay at the foundation of Tocqueville’s monumental and influential work.25 The fruit of the seminar was the publication in 1887 of “The Predictions of Hamilton and de Tocqueville” in the Johns Hopkins Studies in Historical and Political Science. 26

In this important study, Bryce praised Tocqueville and his work. The author was “a singularly fair and penetrating European philosopher” whose work was one of “rare literary merit.” Democracy in America, observed Bryce, is “one of the few treatises on the philosophy of politics which has risen to the rank of a classic.” The great work was nothing less than “a model of art and a storehouse of ethical maxims.” 27

Edition: current; Page: [xix]

Niceties aside, Bryce plunged his critical dagger: “The first observation [about Democracy in America ] is that not only are its descriptions of democracy as displayed in America no longer true in many points, but that in certain points they were never true. That is to say, some were true of America, but not of democracy in general, while others were true of democracy in general but not true of America.” The weaknesses of Tocqueville were three. First, he had opted for the deductive method Bryce deplored: Tocqueville’s “power of observation, quick and active as it was, did not lead but followed the march of his reasonings . . . [so that] the facts he cites are rather illustrations than the sources of his conclusions.” 28

The second defect of Tocqueville’s study is that while he wrote about America “his heart was in France, and the thought of France, never absent from him, unconsciously colored every picture that he drew.” The result of this narrow view is that he “failed to grasp the substantial identity of the American people with the English.” Bryce was blunt: “he has not grasped, as perhaps no one but an Englishman or an American can grasp, the truth that the American people is an English people, modified in some directions by the circumstances of its colonial life and its more popular government, but in essentials the same.” Coupled with his deductive bent, this focus on France led Tocqueville into simple errors: “Much that he remarks in the mental habits of the ordinary American, his latent conservatism, for instance, his indifference to amusement as compared with material comfort, his commercial eagerness and tendency to take a commercial view of all things, might have been just as well remarked of the ordinary middle-class Englishman, and has nothing to do with a Democratic government.” 29

The third problem with Tocqueville’s work is the result of the first two: “ Democracy in America is not so much a political study as a work of edification.” As such, it is simply not an accurate “picture and criticism of the government and people of the United States.” In Bryce’s steely scientific view, Democracy in America failed the test of objectivity. “Let it be remembered that in spite of its scientific form, it is really a work of art rather than a work of science, and a work suffused with strong, though carefully repressed emotion.” The most damning deficiency, Bryce argued, is that Tocqueville “soars far from the ground and is often lost in the clouds of his own sombreEdition: current; Page: [xx] meditations.” 30 As a result, his treatise offered more a colorful “landscape” than an accurate “map” of America. And whatever its great artistic and philosophic achievement, there was still the need for a map. It was precisely Bryce’s desire “to try and give [his] countrymen some juster views than they have had about the United States” that led him to craft The American Commonwealth as a grand atlas of American politics and society.31

The deficiencies Bryce found in Democracy in America spawned in him a sense of caution and modesty. Lest he fall into the same trap as Tocqueville, he was determined never to mistake “transitory for permanent causes.” While there was nothing in Tocqueville’s account that was “simply erroneous,” there was much distortion. Tocqueville tended to build too great a “superstructure of inference, speculation and prediction” on too slight a foundation: “The fact is there, but it is perhaps a smaller fact than he thinks, or a transient fact, or a fact whose importance is, or shortly will be, diminished by other facts which he has not adequately recognized.” 32 In Bryce’s estimation, the real world was far too untidy for such lofty generalizations as those Tocqueville offered. This was especially true when it came to his understanding of democracy itself.

For Bryce, the issue was simple: “Democracy really means nothing more or less than the rule of the whole people expressing their sovereign will by their votes.” 33 In his view, Tocqueville had painted with too broad a brush. Rather than speak of democracy as a form of government, he was wont to speak of democracy as a spirit of the age, something as irresistible as it was intangible. This Bryce rejected:

Democratic government seems to me, with all deference to his high authority, a cause not so potent in the moral and social sphere as he deemed it; and my object has been less to discuss its merits than to paint the institutions and the people of America as they are, tracing what is peculiar to them not merely to the sovereignty of the masses, but also to the history and traditions of the race, to its fundamental ideas, to its material environment.34

Bryce was only incidentally concerned with what Tocqueville had called the mores of the people; the Englishman cared more about institutions than ideology, more about the mechanics of politics than the manners of society.

Edition: current; Page: [xxi]

Bryce conceded that part of Tocqueville’s problem—but only a part—was the time in which he wrote. The sober republicanism of Founders such as Alexander Hamilton had given way to the democratic intoxication of the Jacksonians. “The anarchic teachings of Jefferson had borne fruit,” Bryce explained. “Administration and legislation, hitherto left to the educated classes, had been seized by the rude hands of men of low social position and scanty knowledge.” 35 Thus, what Tocqueville took to be the inherent characteristics of the democratic spirit of the modern age were, in fact, merely the manifestations of a peculiarly perverted exercise of democratic governance during a particularly vulgar and raucous period of American history. The “brutality and violence” of those days had skewed Tocqueville’s account of his grand theory of the tyranny of the majority.36

Tocqueville’s study was influential and generated in his followers the belief that “democracy is the child of ignorance, the parent of dullness and conceit. The opinion of the greatest number being the universal standard, everything is reduced to the level of vulgar minds. Originality is stunted, variety disappears, no man thinks for himself, or, if he does, fears to express what he thinks.” This unhealthy view had been spawned by Tocqueville’s exaggeration of the effect forms of government actually have on society; such an exaggeration ignored the complexity of the relationship between “the political and the intellectual life of a country.” All this Bryce denied: “It is not democracy that had paid off a gigantic debt and raised Chicago out of a swamp. Neither is it democracy that had hitherto denied the United States philosophers like Burke and poets like Wordsworth.” 37

The “narcotic power of democracy” of which Tocqueville warned was, in fact, the result not merely of the form of government in the United States, but of “a mixed and curiously intertwined variety of other causes which have moulded the American mind during the past two centuries.” Many of the attributes of the Americans “must be mainly ascribed to the vast size of the country, the vast numbers and intellectual homogeneity of its native white population, the prevalence of social equality, a busy industrialism, a restless changefulness of occupation, and the absence of a leisured class dominant in matters of taste—conditions that have little or nothing to do with political institutions.” 38

Tocqueville’s Democracy in America had to be taken with great cautionEdition: current; Page: [xxii] by those other nations who might seek prescriptions for their own political ills in its pages. By focusing on what he considered to be the general truths of democracy, Tocqueville seemed to be suggesting that his “new political science . . . for a world itself quite new” 39 was indeed a political manual for the rest of the world. By ignoring the mundane particulars of America for his more dazzling generalizations, Tocqueville had glossed over the deep and abiding significance of the differences between nations.

In Bryce’s view, “although the character of democratic government in the United States is full of instruction for Europeans, it supplies few conclusions directly bearing on the present politics of any European country, because both the strong and the weak points of the American people are not exactly repeated anywhere in the Old World.” 40 To Bryce, the most important thing about similarities was the difference they implied; history could not be as prescriptive as Tocqueville implied: “A thinker duly exercised in historical research will carry his stores of the world’s political experience about with him, not as a book of prescriptions or recipes from which he can select one to apply to a given case, but rather as a physician carries a treatise of pathology which instructs him in the general principles to be followed in observing the symptoms and investigating the causes of the maladies that come before him.” 41 It long remained an article of faith for Bryce that while “prediction in physics may be certain, in politics it can be no more than probable.” 42

III

Bryce “proposed to himself the aim of portraying the whole political system of the country, in its practice as well as its theory, of explaining not only the national government but the state governments, not only the Constitution but the party system, not only the party system but the ideas, temper, habits of the sovereign people.” 43 By striving to go behind the formal legal and institutional structures to the “ideas, temper, habits” of the people, Bryce was, of course, edging closer to Tocqueville than he was willing to acknowledge. Moreover, he was not without his own ulterior motives. As Tocqueville sought to instruct France about lessons to be gleaned fromEdition: current; Page: [xxiii] America, so did Bryce seek to teach his countrymen—and in ways not dissimilar. If Tocqueville wrote with France in mind, Bryce most assuredly wrote with England in mind. For Tocqueville, the great virtue of American federalism and the “incomplete” national government created by the Constitution of 1787 was to teach the importance of decentralized institutions in fending off the bureaucratic tyranny of centralized power, albeit democratic power. For Bryce, the lessons of American federalism were also useful; they tended to support the idea of home rule for Ireland as against the pressures of unionism in resolving the problems posed by Irish independence.44

Bryce had an overarching pedagogic political purpose that went beyond particular British policy battles of the day, however. He was concerned about the ignorance of the United States displayed by his countrymen; even in those most attentive to the great international issues of the day Bryce detected a worrying condescension born of misunderstanding. Assuming America still to be merely a rustic and vulgar outpost of uncultured country folk, Bryce’s colleagues failed to grasp the increasing industrialization and urbanization that were coming to characterize the United States. It was these factors that were rendering America of “enormous and daily increasing influence,” an influence Britain could ill afford to ignore.45 It is this concern to encourage a proper understanding of America in England, above all others, that reveals The American Commonwealth as the intellectual threshold of the “special relationship” between Britain and America that has been of such importance throughout the twentieth century.

Bryce’s study of America ultimately fell short of the scientific standard he had set for himself. He was as much a prisoner of his methodology as Tocqueville had been of his. While Bryce visited on three separate occasions between 1870 and 1883, his time in America amounted only to nine months, the same length of time Tocqueville had roamed the nation half a century earlier. As a result, Bryce was as dependent on anecdotal information about the United States as Tocqueville was; in some ways, Bryce’s dependence is even more obvious. Bryce’s network of friendships and acquaintances, though arguably larger than Tocqueville’s, was better defined, which meant that the lens through which he observed American society and politics had been ground to a certain curve. Indeed, “the America he entered did notEdition: current; Page: [xxiv] centre on the ward districts or working man’s clubs, or immigrant aid societies, but rather on civil service commissions, universities, reform clubs and the editorial offices of genteel journals.” 46 As one critic put it at the time: “Mr. Bryce sees America through the rim of a champagne glass, to the strains of soft music, and in the smiles of fair women.” 47

For all his pretensions of objectivity, Bryce was very much the prisoner of his class. His view was colored by his basic liberalism, whether of the Gladstone variety at home or the establishment liberals with whom he associated in the United States. Nearly to a man, these were East Coast activists of progressive instincts; nary a one of them was close to being a Southerner or a defender of the rights of states against the increasing presence of the national government. The liberal nationalism they displayed, their confidence in the power of government to reform the inconveniences of the human condition, fit in well with Bryce’s own prejudices about the purposes of government. The circle of American friends in whom he put so much confidence ensured that Bryce’s work, in the end, would inevitably suffer from the subjectivity he sought so strenuously to avoid.

The biases one perceives in The American Commonwealth are largely the result of Bryce’s method of actively involving these acquaintances in the creation of the book. The list of those who served him as de facto research assistants is nothing less than an intellectual and political honor roll of the age. Among those who contributed to The American Commonwealth were Thomas Cooley (on constitutional issues), Oliver Wendell Holmes (on legal education), Senator Carl Schurz (on the Senate), Theodore Roosevelt (on municipal government and civil service reform), Woodrow Wilson (on Congress), Arthur Sedgwick (on the Erie Ring), and Frank Goodnow (on municipal government and the Tweed Ring.)48 The assistance they gave Bryce was not limited to culling facts for his use or to reading and commenting on early drafts and later revisions. Goodnow, for example, actually wrote in his own name the chapter in the first edition entitled “The Tweed Ring in New York City,” as did Seth Low the chapter entitled “An American View of Municipal Government in the United States.” In part, these farmed-out chapters were given over to Goodnow and Low “to preventEdition: current; Page: [xxv] the pirating of the work by American publishers, who at that time were not constrained by copyright laws except where the author was an American citizen.” 49 But whatever the legal reasons, the contributions of Low and Goodnow are only the most visible of debts Bryce incurred in writing The American Commonwealth.

In a speech before the Pilgrims’ Society in 1907, Bryce, by then Ambassador to the United States, recollected the sources for his great book.

I am a good listener . . . and I wrote [ The American Commonwealth ] out of conversations to which I listened. I talked to everybody I could find in the United States, not only to statesmen in the halls of Congress, not only at dinner parties, but on the decks of steamers, in smoking cars, to drivers of wagons upon the Western prairies, to ward politicians and city bosses.50

The itineraries of Bryce’s first three journeys through America suggest he was not exaggerating.51 While his closest friends, and those who ultimately exerted the greatest influence on the work as a whole, may have been one or two steps removed from the political fray, Bryce was never inclined to sidestep the nitty and the gritty of American life; he rubbed shoulders with all kinds, from the gun-toting prospectors of Leadville, Colorado, and waitresses in a hotel in the White Mountains to the cigar-chomping pols he met at the New York State Democratic Party Convention, complete with Boss Tweed himself, “a fat, largish man, with an air of self-satisfied good humour and a great deal of shrewd knavery in eye and mouth.” 52 At every turn, Bryce’s methods for getting his original and impressionistic information were “unorthodox.”

He read all parts of newspapers: noting the rates of interest on mortgage loans; counting eighteen advertisements of clairvoyants and soothsayers in a San Francisco newspaper and concluding that they were a sign of a “tendency of this shrewd and educated people to relapse into the oldest and most childish forms of superstition.” He smelt dollar bills in Wisconsin and detected that they had the odor of skins and furs used by the newly arrived Swedes and Norwegians. In a town of the Far West he borrowed a locomotive engine from the stationmaster, in order to run out a few miles to see “a piece of scenery.” He heard or read all sorts of speeches—in legislatures, political party meetings, court trials, Fourth ofEdition: current; Page: [xxvi] July celebrations, and at funerals and dinners—and concludes that American oratory was as bad as that of the rest of the world, except that the toasts at public dinners seemed slightly fewer and better than in England.53

Such methods, however unorthodox in a scholarly sense, were essential if Bryce, like Tocqueville before him, were to peek behind the institutional facade of The American Commonwealth and capture the great and motive force of the American people. While Bryce relied for his facts on everything from the great works of the American political order, such as The Federalist, to more practical publications, such as the Ohio Voters’ Manual, in rounding out his picture of America he simply had to move beyond mere “books and documents.” 54 For the deeper, less tangible aspects of American life, Bryce had to “trust to a variety of flying and floating sources, to newspaper paragraphs, to the conversation of American acquaintances, to impressions formed on the spot from seeing incidents and hearing stories and anecdotes, the authority of which, though it seemed sufficient at the time, cannot always be remembered.” 55 Bryce himself estimated that “five-sixths of [ The American Commonwealth ] was derived from conversations with Americans in London and the United States and only one-sixth from books.” 56 His broad purpose was to make America come alive for his readers; words could not always be trusted: “ [T]he United States and their people . . . make on the visitor an impression so strong, so deep, so fascinating, so interwoven with a hundred threads of imagination and emotion, that he cannot hope to reproduce it in words, and to pass it on undiluted to their minds.” 57 While it might be, strictly speaking, impossible to capture such feelings, Bryce was determined to come as close as possible. Through his sprawling collection of hard facts and figures joined with colorful anecdotal recollections, he sought to convey to his readers the basic belief to which he would always cling: “America excites an admiration which must be felt upon the spot to be understood.” It was this emotion, this excitement that Bryce wanted to transport to the common rooms of Oxford, the ministerial cubicles of Whitehall, and the drawing rooms of Mayfair. The immediate success of The American Commonwealth suggests that he did just that.

Bryce’s study was greeted with high praise, both in England and theEdition: current; Page: [xxvii] United States. Woodrow Wilson in the Political Science Quarterly hailed it as “a great work . . . a noble work.” 58 Lord Acton in the English Historical Review (which Bryce had helped to found) thought that Bryce’s “three stout volumes” were indeed “a far deeper study of real life” than Tocqueville had achieved.59 It was, Acton wrote to Bryce, “resolutely actual” in its account of America.60 Gladstone viewed it as nothing less than “an event in the history of the United States.” 61

For all the praise The American Commonwealth enjoyed, there were criticisms. Both Acton and Wilson, for instance, complained that the book was oddly ahistorical. Acton voiced his regret that Bryce had chosen “to address the unhistoric mind,” while Wilson concluded that the primary weakness of the work—its failure to move beyond facts toward any “guiding principles of government” —was the result of Bryce’s “sparing use of history.” 62 Other critics were harsher. The seemingly ever-curmudgeonly Spectator scoffed that “human nature revolts at two thousand large-octavo pages about anything, even though it be the American republic.” 63 There were other problems that, once alerted to the concerns of his critics, Bryce endeavored to correct in later editions, including his treatment of blacks, the American South, immigration, and foreign policy. He also turned to new developments (in the third edition, the most complete revision), such as tendencies in current legislation and the increasing importance of universities in American life.

The greatest weakness of The American Commonwealth, however, turned out to be a feature that its author reckoned was its greatest strength. Bryce’s determination to get his facts straight and present them clearly rendered the book more time-bound than he may have imagined when he undertook the project; as a concrete account of America, it had no shelf life.64 The facts and figures which he had so carefully gathered quickly faded into inaccuracyEdition: current; Page: [xxviii] and irrelevance. It was simply impossible to keep up. Moreover, Bryce “resolutely declined” to undertake a complete revision of the work. While new editions appeared in 1889, 1893, and 1910 (and additional revisions in 1913, 1914, and 1920), The American Commonwealth was doomed to be seen primarily as a tract for its time.65 All or most of the revisions were at best marginal, seeking merely to keep the book up-to-date with statistical changes and new laws and major policies. Bryce never reconsidered the fundamental assumptions which underlay the work as a whole. The result was that the gulf widened between its facts and its teachings about democracy in America.66 This led Harold Laski to indict Bryce for his “insatiable appetite for facts and his grotesque inability to weigh them.” 67 This was the result, as Woodrow Wilson had pointed out, of Bryce having taken as his task “rather exposition than judgment.” 68 By 1920, the scholarly consensus among Bryce’s friends was that The American Commonwealth was “altogether out of focus.” Rather than revise it, it was thought best to leave it “undisturbed,” an artifact of a bygone era. All that remained of value, Charles Beard concluded, were its “philosophic views.” 69

It is when Bryce moves away from the details of government to his reflections on American society that the lasting virtues of The American Commonwealth shine most clearly, unobscured by the mists of time. Even though many of his more abstract observations are rooted in the concrete circumstances of the world around him—in such chapters as “Why the Best Men Do Not Go Into Politics,” “Corruption,” and “Laissez Faire” —Bryce cuts through the particular facts of his day to expose something more timeless about the nature of the American people. Surely there has never been a more perennial subject in American politics than the one Bryce described simply as “Why Great Men Are Not Chosen Presidents.” Beneath the structures of government, behind the mechanics of checks and balances and federalism, Bryce captured essential truths about what the American Founders frequently called the genius of the American people.

But that is not all. There is yet greater depth to Bryce’s study than simply the permanent characteristics of democracy in America. Not unlikeEdition: current; Page: [xxix] Tocqueville, Bryce also drew out the lessons of democracy for the modern age on whose threshold he stood. His reflections on such problems as “The Fatalism of the Multitude” and “The Influence of Religion” reveal his deepest teachings to be much closer to Tocqueville than he would have cared to admit. But the reason is clear: America herself refuses to be reduced to the sterile formalism of value-free discourse; scientific explanation cannot capture the political whole that lies beyond the sum of the institutional parts. If America is not an ideal democracy, it is at least one that has always aspired to idealism. From the very beginning, it has been a nation that demands moral reflection to be truly understood. Ultimately, Bryce, like Tocqueville, did indeed see more in America than America herself; he, too, saw democracy writ large, in spite of himself, he, too, understood there were surely lessons to be drawn for the benefit of the world, both in his day and in the unforeseeable future. In the end, his most abiding teachings, those still-relevant “philosophic views,” echo Tocqueville’s warnings about the problems and the prospects of the democratic age. “The more democratic republics become,” Bryce wrote, “the more the masses grow conscious of their own power, the more do they need to live, not only by patriotism, but by reverence and self-control, and the more essential to their well being are those sources whence reverence and self-control flow.” 70

IV

The American Commonwealth was not the totality of James Bryce’s life. He published ten other books and dozens of articles and reviews, and contributed numerous chapters to edited volumes on topics that ranged from the Ottoman Empire to the League of Nations. All the while he continued to travel the world and maintain a vigorous correspondence with the great and the good of his day.

Although he relinquished his chair of law at Oxford in 1893, Bryce’s political career continued unabated. In 1885 he stood again for Parliament, this time to represent South Aberdeen; he went on to represent that constituency for twenty-one uninterrupted years, standing down only when he became the British ambassador to the United States in 1906. He held that post until 1913. Upon his retirement from Washington, James Bryce became Viscount Bryce of Dechmont and entered the House of Lords, where he remained an active participant in the great debates of the day.

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Of all Lord Bryce’s public accomplishments, none was perhaps as important as his service as ambassador to the nation he so loved. During his seven diplomatic years, Bryce built upon his great reputation and his legions of friends to pull the United States and the United Kingdom ever closer together.71 He never faltered in his belief that the Americans were, at heart and in their history, Englishmen. As such, the two nations had a natural attachment that set them apart from the rest of the world. The unity of their interests went beyond the expediency of the moment; they were linked at the deepest, most moral level of politics. They shared too much in common—law, literature, and religion—to be too long separated by the wedge of disagreement. By both his pen and his politics, James Bryce shored up the foundation of the “special relationship” between Britain and America that would see them through the calamitous twentieth century as the bastions of freedom.

James Bryce died quietly and unexpectedly in his sleep on January 22, 1922, in Sidmouth, Devon, where he and Marion, his wife of thirty-three years, had gone for a holiday. He was mourned in both London and Washington as a man unsurpassed in his devotion to democracy and liberty, ever guided by “the deep moral purpose which directed every thought and action of his life.” 72 He was buried next to his parents in the Grange Cemetery in Edinburgh. On October 12, 1922, a bronze bust of James Bryce was placed in the Capitol of the United States with an inscription that no doubt would have pleased him: “James, Viscount Bryce, Friend and Ambassador to the American People and Interpreter of their Institutions.”

Institute of United States Studies
University of London
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Publisher’s Note

The first edition of James Bryce’s The American Commonwealth appeared in 1888. It was published in London by Macmillan & Co. as a three-volume set and is the only edition of the book to be released in England. A two-volume edition of the work, using smaller type, was published at the same time in New York, and all subsequent editions have been limited to two volumes.

Two chapters in this first edition were written by Americans so that Bryce could obtain an American copyright (at that time the United States had not joined the International Copyright Union). Seth Low, a leader of the municipal reform movement and later president of Columbia University and mayor of New York, wrote chapter 52, “An American View of Municipal Government in the United States”; and Professor Frank J. Goodnow of Columbia University, a prominent political scientist and author of pioneer studies in the field of public administration, wrote chapter 88, “The Tweed Ring in New York City.”

In 1889, Macmillan reprinted the first edition but omitted the Goodnow chapter on the Tweed Ring because it had become the object of a libel suit. This chapter was also suppressed in the second edition of the work, which was published in 1893 with many revisions and additions. Bryce later rewrote the Goodnow chapter, however, and changed the title to “The Tammany Ring in New York City.” It was introduced in the extensively revised third edition published in 1910. But Bryce did not significantly alter the substance of this controversial chapter. He used every name that Goodnow had used and simply moderated the tone and updated the story.

The publisher heralded the 1910 edition as a “new edition completely revised throughout with additional chapters.” The changes were not as extensive as this suggests, but Bryce had added a great deal of new material since the first edition, including supplementary materials on political parties and amendments to the Constitution, and new chapters on AmericanEdition: current; Page: [xxxii] universities and colleges, immigration, the South since the Civil War, and what was then called “the Negro problem.” Seth Low also made modest revisions of his chapter on municipal government for the third edition.

In all of its essential attributes, the third edition published in 1910 represents Bryce’s final and most mature reflections on American institutions. In 1914, Bryce brought some statistics and the appendix up to date, and he apparently made a few additional minor corrections and additions before his death in 1922; but these changes did not significantly alter the work. Macmillan continued to publish the updated third edition in New York as late as 1941. The 1941 edition of The American Commonwealth, which encompasses all of the changes, corrections, and additions to the first three editions entered by Bryce, was used in the preparation of this new Liberty Fund edition.

In this new edition of Bryce’s classic, the reader will also note that the appendix has been expanded to include an essay by Bryce entitled “The Predictions of Hamilton and De Tocqueville” (originally published in 1887 by Johns Hopkins University) and two contemporaneous book reviews of The American Commonwealth, published in 1889, by Woodrow Wilson and Lord Acton, respectively.

Although capitalization and punctuation have been modernized for the convenience of the reader, Bryce’s style, including spelling and grammar, has been preserved intact. Footnotes and bracketed material are those of Bryce, except as otherwise noted.

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Preface to the First Edition

As the introductory chapter of this work contains such explanations as seem needed of its scope and plan, the Author has little to do in this place except express his thanks to the numerous friends who have helped him with facts, opinions, and criticisms, or by the gift of books or pamphlets. Among these he is especially indebted to the Hon. Thomas M. Cooley, now Chairman of the Inter-State Commerce Commission in Washington; Mr. James B. Thayer of the Harvard Law School, Cambridge, Mass.; Hon. Seth Low, formerly Mayor of Brooklyn; Mr. Theodore Roosevelt of New York; Mr. G. Bradford of Cambridge, Mass.; and Mr. Theodore Bacon of Rochester, N.Y.; by one or other of whom the greater part of the proofs of these volumes have been read. He has also received valuable aid from Mr. Justice Holmes of the Supreme Court of Massachusetts; Mr. Theodore Dwight, late Librarian of the State Department at Washington; Mr. H. Villard of New York; Dr. Albert Shaw of Minneapolis; Mr. Jesse Macy of Grinnell, Ia.; Mr. Simeon Baldwin and Dr. George P. Fisher of Newhaven, Conn.; Mr. Henry C. Lea of Philadelphia; Col. T. W. Higginson of Cambridge, Mass.; Mr. Bernard Moses of Berkeley, Cal.; Mr. A. B. Houghton of Corning, N.Y.; Mr. John Hay of Washington; Mr. Henry Hitchcock of St. Louis, Mo.; President James B. Angell of Ann Arbor, Mich.; Hon. Andrew D. White of Syracuse, N.Y.; Mr. Frank J. Goodnow of New York; Dr. Atherton of the State College, Pennsylvania; and the U.S. Bureau of Education. No one of these gentlemen is, however, responsible for any of the facts stated or views expressed in the book.

The Author is further indebted to Mr. Low and Mr. Goodnow for two chapters which they have written, and which contain, as he believes, matter of much interest relating to municipal government and politics.

He gladly takes this opportunity of thanking for their aid and counsel four English friends: Mr. Henry Sidgwick, who has read most of the proofs withEdition: current; Page: [xxxiv] great care and made valuable suggestions upon them; the Rev. Stopford A. Brooke, whose literary criticisms have been very helpful; Mr. Albert V. Dicey, and Mr. W. Robertson Smith.

He is aware that, notwithstanding the assistance rendered by friends in America, he must have fallen into not a few errors, and without asking to be excused for these, he desires to plead in extenuation that the book has been written under the constant pressure of public duties as well as of other private work, and that the difficulty of obtaining in Europe correct information regarding the constitutions and laws of American States and the rules of party organizations is very great.

When the book was begun, it was intended to contain a study of the more salient social and intellectual phenomena of contemporary America, together with descriptions of the scenery and the aspects of nature and human nature in the West, all of whose States and Territories the Author has visited. But as the work advanced, he found that to carry out this plan it would be necessary either unduly to curtail the account of the government and politics of the United States, or else to extend the book to a still greater length than that which, much to his regret, it has now reached. He therefore reluctantly abandoned the hope of describing in these volumes the scenery and life of the West. As regards the non-political topics which were to have been dealt with, he has selected for discussion in the concluding chapters those of them which either were comparatively unfamiliar to European readers, or seemed specially calculated to throw light on the political life of the country, and to complete the picture which he has sought to draw of the American Commonwealth as a whole.

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Preface to the Edition of 1910

As the introductory chapter of this book contains such explanations as seem needed of its scope and plan, I have little to do here except advert to the alterations made in it since it was first published in 1888. Some years afterwards, in 1893–95, a revised and much enlarged edition appeared; and since that date various minor corrections and additions have from time to time been made. Now in 1910 I find that so many changes have taken place in the United States that a further complete revision has become necessary, and that some note ought to be taken of certain new phenomena in American politics and society. In this edition, accordingly, there have been introduced, sometimes in the text, sometimes in supplementary notes, concise descriptions of such phenomena.

Besides these corrections and additions, which do not affect the general plan, four new chapters have been added. One deals with the transmarine dominions of the United States acquired since 1888, a second with the hugh influx of immigrants who have been arriving from Central and Southern Europe, a third with the more recent phases of the Negro problem in the South, and a fourth with the remarkable development in late years of the American universities.

My friend, Mr. Seth Low, formerly mayor of New York, has been kind enough to rewrite the chapter on municipal government which he contributed to the first edition, and which contains matter of much interest relating to city government and city politics.

I am indebted to Professor Beard of Columbia University for information on several topics which I could not personally investigate. Besides the difficulties of selection and compression which attend any attempt to deal in two volumes with so vast a subject as that of this treatise, I have found in revising it a further difficulty in the fact that many political institutions in the United States, such as forms of city government, the party nominating machinery, and the methods of direct popular legislation, are at present inEdition: current; Page: [xxxvi] a transitory or experimental condition; the variations between one state and another growing more numerous with the emergence of new ideas and new schemes of reform. It would have been impossible to find space to describe these otherwise than in outline, even could I, under the heavy pressure of other duties, have found time to study all these things minutely. But an effort has been made to call attention to the more important among these new political arrangements, and to give in each case the most recent facts, though I am for obvious reasons precluded from adding comments on many of the facts which it is proper to state.

It was with some anxiety that I entered on this revision, fearing lest the hopeful spirit with which my observation of American institutions from 1870 to 1894 had inspired me might be damped by a close examination of their more recent phases. But all I have seen and heard during the last few years makes me more hopeful for the future of popular government. The forces working for good seem stronger today than they have been for the last three generations.

In the prefaces to the first and third editions I expressed my thanks to a large number of friends, American and English, who had helped me. Many of those to whom I was most indebted have now passed away. To those who happily remain I renew the expression of my gratitude, and am glad to thank also many others, too numerous to be all mentioned by name, in the United States, who have within the last few years helped me in a thousand ways towards acquiring a more thorough knowledge of their country.

I venture to take this opportunity of saying how deeply I appreciate the extraordinary kindness with which this attempt, made by one who was then, comparatively speaking, a stranger, to describe American institutions, has been received in the United States, and of which I have received so many proofs in travelling to and fro throughout the country.

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Note to Edition of 1914

This new edition has been carefully revised in order to introduce into the text the changes made by recent amendments to the Constitution, and otherwise to bring the book up to date.

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List of Presidents

1789–1793 GEORGE WASHINGTON
1793–1797 Re-elected
1797–1801 JOHN ADAMS
1801–1805 THOMAS JEFFERSON
1805–1809 Re-elected
1809–1813 JAMES MADISON
1813–1817 Re-elected
1817–1821 JAMES MONROE
1821–1825 Re-elected
1825–1829 JOHN QUINCY ADAMS
1829–1833 ANDREW JACKSON
1833–1837 Re-elected
1837–1841 MARTIN VAN BUREN
1841–1845 WILLIAM HENRY HARRISON (died 1841)
JOHN TYLER
1845–1849 JAMES KNOX POLK
1849–1853 ZACHARY TAYLOR (died 1850)
MILLARD FILLMORE
1853–1857 FRANKLIN PIERCE
1857–1861 JAMES BUCHANAN
1861–1865 ABRAHAM LINCOLN
1865–1869 Re-elected (died 1865)
ANDREW JOHNSON
1869–1873 ULYSSES S. GRANT
1873–1877 Re-elected
1877–1881 RUTHERFORD B. HAYES
1881–1885 JAMES ABRAM GARFIELD (died 1881)
CHESTER A. ARTHUR
1885–1889 STEPHEN GROVER CLEVELAND
1889–1893 BENJAMIN HARRISON
1893–1897 GROVER CLEVELAND
1897–1901 WILLIAM McKINLEY
1901–1905 Re-elected (died 1901)
THEODORE ROOSEVELT
1905–1909 THEODORE ROOSEVELT
1909–1913 WILLIAM HOWARD TAFT
1913- WOODROW WILSON
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Dates of Some Remarkable Events in the History of the North American Colonies and United States

1606 First charter of Virginia.
1607 First settlement in Virginia.
1620 First settlement in Massachusetts.
1664 Taking of New Amsterdam (New York).
1759 Battle of Heights of Abraham and taking of Quebec.
1775 Beginning of the Revolutionary War.
1776 Declaration of Independence.
1781 Formation of the Confederation.
1783 Independence of United States recognized.
1787 Constitutional Convention at Philadelphia.
1788 The Constitution ratified by nine states.
1789 Beginning of the federal government.
1793 Invention of the cotton gin.
1803 Purchase of Louisiana from France.
1812–14 War with England.
1812–15 Disappearance of the Federalist Party.
1819 Purchase of Florida from Spain.
1819 Steamers begin to cross the Atlantic.
1820 The Missouri Compromise.
1828–32 Formation of the Whig Party.
1830 First passenger railway opened.
1840 National nominating conventions regularly established.
1844 First electric telegraph in operation.
1845 Admission of Texas to the Union.
1846–48 Mexican War and cession of California.
1852–56 Fall of the Whig Party.
1854–56 Formation of the Republican Party.
1857 Dred Scott decision delivered.
1861–65 War of Secession.
1869 First transcontinental railway completed.
1877 Final withdrawal of Federal troops from the South.
1879 Specie payments resumed.
1898 War with Spain: annexation of Hawaii.
1899 Cession by Spain of Puerto Rico and the Philippine Islands.
1904 Acquisition of the Canal Zone at the Isthmus of Panama.
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Area, Population, and Date of Admission of the States

The thirteen original states, in the order in which they ratified the Constitution
Foreign Policy and Territorial Extension
Ratified the Constitution Area in square miles Population (1910)
Delaware 1787 2,050 202,322
Pennsylvania 1787 45,215 7,665,111
New Jersey 1787 7,815 2,537,167
Georgia 1788 59,475 2,609,121
Connecticut 1788 4,990 1,114,756
Massachusetts 1788 8,315 3,366,416
Maryland 1788 12,210 1,295,346
South Carolina 1788 30,570 1,515,400
New Hampshire 1788 9,305 430,572
Virginia 1788 42,450 2,061,612
New York 1788 49,170 9,113,614
North Carolina 1789 52,250 2,206,287
Rhode Island 1790 1,250 542,610
States subsequently admitted, in the order of their admission
Vermont 1791 9,565 355,956
Kentucky 1792 40,400 2,289,905
Tennessee 1796 42,050 2,184,789
Ohio 1802 41,060 4,767,121
Louisiana 1812 48,720 1,656,388
Indiana 1816 36,350 2,700,876
Mississippi 1817 46,810 1,797,114
Illinois 1818 56,650 5,638,591
Alabama 1819 52,250 2,138,093
Maine 1820 33,040 742,371
Missouri 1821 69,415 3,293,335
Arkansas 1836 53,850 1,574,449
Michigan 1837 58,915 2,810,173
Florida 1845 58,680 752,619
Texas 1845 265,780 3,896,514
Iowa 1846 56,025 2,224,771
Wisconsin 1848 56,040 2,333,860
California 1850 158,360 2,377,549
Minnesota 1858 83,365 2,075,708
Oregon 1859 96,030 672,765
Kansas 1861 82,080 1,690,949
W. Virginia 1863 24,780 1,221,119
Nevada 1864 110,700 81,875
Nebraska 1867 77,510 1,192,214
Colorado 1876 103,925 799,024
N. Dakota 1889 70,795 577,056
S. Dakota 1889 77,650 583,888
Montana 1889 146,080 376,053
Washington 1889 69,180 1,141,990
Wyoming 1890 97,890 145,965
Idaho 1890 84,800 325,954
Utah 1895–96 84,970 373,351
Oklahoma 1907 70,057 1,657,155
Arizona 1911 113,020 204,354
New Mexico 1911 122,580 327,301
Territories, Etc.
Area Population (1910)
1According to the census taken in 1903 under the direction of the War Department.
Hawaiian Islands 6,449 191,909
Alaska 590,884 64,356
District of Columbia 70 331,069
Philippine Islands1 127,853 7,635,426
Porto Rico 3,435 1,118,012
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chapter 1

Introductory

What do you think of our institutions?” is the question addressed to the European traveller in the United States by every chance acquaintance. The traveller finds the question natural, for if he be an observant man his own mind is full of these institutions. But he asks himself why it should be in America only that he is so interrogated. In England one does not inquire from foreigners, nor even from Americans, their views on the English laws and government; nor does the Englishman on the Continent find Frenchmen or Germans or Italians anxious to have his judgment on their politics. Presently the reason of the difference appears. The institutions of the United States are deemed by inhabitants and admitted by strangers to be a matter of more general interest than those of the not less famous nations of the Old World. They are, or are supposed to be, institutions of a new type. They form, or are supposed to form, a symmetrical whole, capable of being studied and judged all together more profitably than the less perfectly harmonized institutions of older countries. They represent an experiment in the rule of the multitude, tried on a scale unprecedentedly vast, and the results of which everyone is concerned to watch. And yet they are something more than an experiment, for they are believed to disclose and display the type of institutions towards which, as by a law of fate, the rest of civilized mankind are forced to move, some with swifter, others with slower, but all with unresting feet.

When our traveller returns home he is again interrogated by the more intelligently curious of his friends. But what now strikes him is the inaptness of their questions. Thoughtful Europeans have begun to realize, whether with satisfaction or regret, the enormous and daily increasing influence of the United States, and the splendour of the part reserved for them in the development of civilization. But such men, unless they have themselvesEdition: current; Page: [2] crossed the Atlantic, have seldom either exact or correct ideas regarding the phenomena of the New World. The social and political experiments of America constantly cited in Europe both as patterns and as warnings are hardly ever cited with due knowledge of the facts, much less with comprehension of what they teach; and where premises are misunderstood inferences must be unsound.

It is such a feeling as this, a sense of the immense curiosity of Europe regarding the social and political life of America, and of the incomparable significance of American experience, that has led and will lead so many travellers to record their impressions of the Land of the Future. Yet the very abundance of descriptions in existence seems to require the author of another to justify himself for adding it to the list.

I might plead that America changes so fast that every few years a new crop of books is needed to describe the new face which things have put on, the new problems that have appeared, the new ideas germinating among her people, the new and unexpected developments for evil as well as for good of which her established institutions have been found capable. I might observe that a new generation grows up every few years in Europe, which does not read the older books, because they are old, but may desire to read a new one. And if a further reason is asked for, let it be found in this, that during the last fifty years no author has proposed to himself the aim of portraying the whole political system of the country in its practice as well as its theory, of explaining not only the national government but the state governments, not only the Constitution but the party system, not only the party system but the ideas, temper, habits of the sovereign people. Much that is valuable has been written on particular parts or aspects of the subject, but no one seems to have tried to deal with it as a whole; not to add that some of the ablest writers have been either advocates, often professed advocates, or detractors of democracy.

To present such a general view of the United States both as a government and as a nation is the aim of the present book. But in seeking to be comprehensive it does not attempt to be exhaustive. The effort to cover the whole ground with equal minuteness, which a penetrating critic—the late Karl Hillebrand—remarked upon as a characteristic fault of English writers, is to be avoided not merely because it wearies a reader, but because it leads the writer to descant as fully upon matters he knows imperfectly as upon those which his own tastes and knowledge qualify him to deal with. I shall endeavour to omit nothing which seems necessary to make the political life and the national character and tendencies of the Americans intelligible toEdition: current; Page: [3] Europeans, and with this view shall touch upon some topics only distantly connected with government or politics. But there are also many topics, perhaps no more remote from the main subject, which I shall pass lightly over, either because they have been sufficiently handled by previous writers, or because I have no such minute acquaintance with them as would make my observations profitable. For instance, the common-school system of the United States has been so frequently and fully described in many easily accessible books that an account of it will not be expected from me. But American universities have been generally neglected by European observers, and may therefore properly claim some pages. The statistics of manufactures, agriculture, and commerce, the systems of railway finance and railway management, are full of interest, but they would need so much space to be properly set forth and commented on that it would be impossible to bring them within the present volumes, even had I the special skill and knowledge needed to distil from rows of figures the refined spirit of instruction. Moreover, although an account of these facts might be made to illustrate the features of American civilization, it is not necessary to a comprehension of American character. Observations on the state of literature and religion are necessary, and I have therefore endeavoured to convey some idea of the literary tastes and the religious habits of the people, and of the part which these play in forming and colouring the whole life of the country.

The book which it might seem natural for me to take as a model is the Democracy in America of Alexis de Tocqueville. It would indeed, apart from the danger of provoking a comparison with such an admirable master of style, have been an interesting and useful task to tread in his steps, and seek to do for the United States of 1888, with their sixty millions of people, what he did for the fifteen millions of 1832. But what I have actually tried to accomplish is something different, for I have conceived the subject upon quite other lines. To Tocqueville America was primarily a democracy, the ideal democracy, fraught with lessons for Europe, and above all for his own France. What he has given us is not so much a description of the country and people as a treatise, full of fine observation and elevated thinking, upon democracy, a treatise whose conclusions are illustrated from America, but are founded, not so much on an analysis of American phenomena, as on general views of democracy which the circumstances of France had suggested. Democratic government seems to me, with all deference to his high authority, a cause not so potent in the moral and social sphere as he deemed it; and my object has been less to discuss its merits than to paint the institutions and people of America as they are, tracing what is peculiar in them notEdition: current; Page: [4] merely to the sovereignty of the masses, but also to the history and traditions of the race, to its fundamental ideas, to its material environment. I have striven to avoid the temptations of the deductive method, and to present simply the facts of the case, arranging and connecting them as best I can, but letting them speak for themselves rather than pressing upon the reader my own conclusions. The longer anyone studies a vast subject, the more cautious in inference does he become. When I first visited America in the year 1870, I brought home a swarm of bold generalizations. Half of them were thrown overboard after a second visit in 1881. Of the half that remained, some were dropped into the Atlantic when I returned across it after a third visit in 1883–84; and although the two later journeys gave birth to some new views, these views are fewer and more discreetly cautious than their departed sisters of 1870. I can honestly say that I shall be far better pleased if readers of a philosophic turn find in the book matter on which they feel they can safely build theories for themselves, than if they take from it theories ready made.

To have dealt with the subject historically would have been profitable as well as pleasant, for the nature of institutions is best understood when their growth has been traced and illustrations adduced of their actual working. If I have made only a sparing use of this method, it has been from no want of love for it, but because a historical treatment would have seldom been compatible with my chief aim, that of presenting, within reasonable compass, a full and clear view of the facts of today. American history, of which Europeans know scarcely anything, may be wanting in colour and romance when compared with the annals of the great states of the Old World; but it is eminently rich in political instruction. I hope that my American readers, who, if I am not mistaken, know the history of their country better than the English know that of England, will not suppose that I have ignored this instruction, but will allow for the omissions rendered necessary by the magnitude of the subject which I am trying to compress into two volumes. Similar reasons compel me to deal succinctly with the legal aspects of the Constitution; but the lay reader may possibly deem this brevity a merit.

Even when limited by the exclusion of history and law, the subject remains so vast and complex as to make necessary an explanation of the conception I have formed of it, and of the plan upon which the book has been constructed.

There are three main things that one wishes to know about a national commonwealth, viz., its framework and constitutional machinery, the methods by which it is worked, the forces which move it and direct itsEdition: current; Page: [5] course. It is natural to begin with the first of these. Accordingly, I begin with the government; and as the powers of government are twofold, being vested partly in the national or federal authorities and partly in the states, I begin with the national government, whose structure presents less difficulty to European minds, because it resembles the national government in each of their own countries. Part I therefore contains an account of the several federal authorities, the president, Congress, the courts of law. It describes the relations of the national or central power to the several states. It discusses the nature of the Constitution as a fundamental supreme law, and shows how this stable and rigid instrument has been in a few points expressly, in many others tacitly and half-unconsciously modified.

Part II deals similarly with the state governments, examining the constitutions that have established them, the authorities which administer them, the practical working of their legislative bodies. And as local government is a matter of state regulation, there is also given some account of the systems of rural and city government which have been created in the various states, and which have, rural government for its merits and city government for its faults, become the theme of copious discussion among foreign students of American institutions.

(Part III) The whole machinery, both of national and of state governments, is worked by the political parties. Parties have been organized far more elaborately in the United States than anywhere else in the world, and have passed more completely under the control of a professional class. The party organizations in fact form a second body of political machinery, existing side by side with that of the legally constituted government, and scarcely less complicated. Politics, considered not as the science of government, but as the art of winning elections and securing office, has reached in the United States a development surpassing in elaborateness that of England or France as much as the methods of those countries surpass the methods of Servia or Roumania. Part III contains a sketch of this party system, and of the men who “run” it, topics which deserve and would repay a fuller examination than they have yet received even in America, or than my limits permit me to bestow.

(Part IV) The parties, however, are not the ultimate force in the conduct of affairs. Behind and above them stands the people. Public opinion, that is, the mind and conscience of the whole nation, is the opinion of persons who are included in the parties, for the parties taken together are the nation; and the parties, each claiming to be its true exponent, seek to use it for their purposes. Yet it stands above the parties, being cooler and largerEdition: current; Page: [6] minded than they are; it awes party leaders and holds in check party organizations. No one openly ventures to resist it. It determines the direction and the character of national policy. It is the product of a greater number of minds than in any other country, and it is more indisputably sovereign. It is the central point of the whole American polity. To describe it, that is, to sketch the leading political ideas, habits, and tendencies of the American people, and show how they express themselves in action, is the most difficult and also the most vital part of my task; and to this task the twelve chapters of Part IV are devoted.

(Part V) As the descriptions given and propositions advanced in treating of the party system and of public opinion are necessarily general, they seem to need illustration by instances drawn from recent American history. I collect three such instances in Part V, and place there a discussion of several political questions which lie outside party politics, together with some chapters in which the attempt is made to estimate the strength and weakness of democratic government as it exists in the United States, and to compare the phenomena which it actually shows with those which European speculation has attributed to democracy in general.

(Part VI) At this point the properly political sections of the book end. But there are certain nonpolitical institutions, certain aspects of society, certain intellectual or spiritual forces, which count for so much in the total life of the country, in the total impression which it makes and the hopes for the future which it raises, that they cannot be left unnoticed. These, or rather such of them as are of most general interest, and have been least understood in Europe, will be found briefly treated in Part VI. In the view which I take of them, they are all germane, though not all equally germane, to the main subject of the book, which is the character, temper, and tendencies of the American nation, as they are expressed primarily in political and social institutions, secondarily in literature and manners.

This plan involves some repetition. But an author who finds himself obliged to choose between repetition and obscurity ought not to doubt as to his choice. Whenever it has been necessary to trace a phenomenon to its source, or to explain a connection between several phenomena, I have not hesitated, knowing that one must not expect a reader to carry in his mind all that has been told already, to restate a material fact, or reenforce a view which gives to the facts what I conceive to be their true significance.

It may be thought that a subject of this great compass ought, if undertaken at all, to be undertaken by a native American. No native American has,Edition: current; Page: [7] however, undertaken it. Such a writer would doubtless have great advantages over a stranger. Yet there are two advantages which a stranger, or at least a stranger who is also an Englishman, with some practical knowledge of English politics and English law, may hope to secure. He is struck by certain things which a native does not think of explaining, because they are too obvious; and whose influence on politics or society, one to whom they seem part of the order of nature forgets to estimate. And the stranger finds it easier to maintain a position of detachment, detachment not only from party prejudice, but from those prepossessions in favour of persons, groups, constitutional dogmas, national pretensions, which a citizen can scarcely escape except by falling into that attitude of impartial cynicism which sours and perverts the historical mind as much as prejudice itself. He who regards a wide landscape from a distant height sees its details imperfectly, and must unfold his map in order to make out where each village lies, and how the roads run from point to point. But he catches the true perspective of things better than if he were standing among them. The great features of the landscape, the valleys, slopes, and mountains, appear in their relative proportion: he can estimate the height of the peaks and the breadth of the plains. So one who writes of a country not his own may turn his want of familiarity with details to good account if he fixes his mind strenuously on the main characteristics of the people and their institutions, while not forgetting to fill up gaps in his knowledge by frequent reference to native authorities. My own plan has been first to write down what struck me as the salient and dominant facts and then to test, by consulting American friends and by a further study of American books, the views which I had reached.

To be nonpartisan, as I trust to have been, in describing the politics of the United States, is not difficult for a European, especially if he has the good fortune to have intimate friends in both the great American parties. To feel and show no bias in those graver and more sharply accentuated issues which divide men in Europe, the issues between absolutism, oligarchy, and democracy; between strongly unified governments and the policy of decentralization, this is a harder task, yet a not less imperative duty. This much I can say, that no fact has been either stated or suppressed, and no opinion put forward, with the purpose of serving any English party doctrine or party policy, or in any way furnishing arguments for use in any English controversy. The admirers and the censors of popular government are equally likely to find in the present treatise materials suited to their wishes; and inEdition: current; Page: [8] many cases, if I may judge from what has befallen some of my predecessors, they will draw from these materials conclusions never intended by the author.

Few things are more difficult than to use aright arguments founded on the political experience of other countries. As the chief practical use of history is to deliver us from plausible historical analogies, so a comprehension of the institutions of other nations enables us to expose sometimes the ill-grounded hopes, sometimes the idle fears, which loose reports about those nations generate. Direct inferences from the success or failure of a particular constitutional arrangement or political usage in another country are rarely sound, because the conditions differ in so many respects that there can be no certainty that what flourishes or languishes under other skies and in another soil will likewise flourish or languish in our own. Many an American institution would bear a different fruit if transplanted to England, as there is hardly an English institution which has not undergone, like the plants and animals of the Old World, some change in America. The examination and appraisement of the institutions of the United States is no doubt full of instruction for Europe, full of encouragement, full of warning; but its chief value lies in what may be called the laws of political biology which it reveals, in the new illustrations and enforcements it supplies of general truths in social and political science, truths some of which were perceived long ago by Plato and Aristotle, but might have been forgotten had not America poured a stream of new light upon them. Now and then we may directly claim transatlantic experience as accrediting or discrediting some specific constitutional device or the policy of some enactment. But even in these cases he who desires to rely on the results shown in America must first satisfy himself that there is such a parity of conditions and surroundings in respect to the particular matter as justifies him in reasoning directly from ascertained results there to probable results in his own country.

It is possible that these pages, or at least those of them which describe the party system, may produce on European readers an impression which I neither intend nor desire. They may set before him a picture with fewer lights and deeper shadows than I have wished it to contain. Many years ago I travelled in Iceland with two friends. We crossed the great desert by a seldom trodden track, encountering, during two months of late autumn, rains, tempests, snowstorms, and other hardships too numerous to recount. But the scenery was so grand and solemn, the life so novel, the character of the people so attractive, the historic and poetic traditions so inspiring, that we returned full of delight with the marvellous isle. When we expressedEdition: current; Page: [9] this enchantment to our English friends, we were questioned about the conditions of travel, and forced to admit that we had been frozen and starved, that we had sought sleep in swamps or on rocks, that the Icelanders lived in huts scattered through a wilderness, with none of the luxuries and few even of the comforts of life. Our friends passed over the record of impressions to dwell on the record of physical experiences, and conceived a notion of the island totally different from that which we had meant to convey. We perceived too late how much easier it is to state tangible facts than to communicate impressions. If I may attempt to apply the analogy to the United States and their people, I will say that they make on the visitor an impression so strong, so deep, so fascinating, so inwoven with a hundred threads of imagination and emotion, that he cannot hope to reproduce it in words, and to pass it on undiluted to other minds. With the broad facts of politics it is otherwise. These a traveller can easily set forth, and is bound in honesty to set forth, knowing that in doing so he must state much that is sordid, much that will provoke unfavourable comment. The European reader grasps these tangible facts, and, judging them as though they existed under European conditions, draws from them conclusions disparaging to the country and the people. What he probably fails to do, because this is what the writer is most likely to fail in enabling him to do, is to realize the existence in the American people of a reserve of force and patriotism more than sufficient to sweep away all the evils which are now tolerated, and to make the politics of the country worthy of its material grandeur and of the private virtues of its inhabitants. America excites an admiration which must be felt upon the spot to be understood. The hopefulness of her people communicates itself to one who moves among them, and makes him perceive that the graver faults of politics may be far less dangerous there than they would be in Europe. A hundred times in writing this book have I been disheartened by the facts I was stating; a hundred times has the recollection of the abounding strength and vitality of the nation chased away these tremors.

There are other risks to which such a book as this is necessarily exposed. There is the risk of supposing that to be generally true which the writer has himself seen or been told, and the risk of assuming that what is now generally true is likely to continue so. Against the former of these dangers he who is forewarned is forearmed; as to the latter I can but say that whenever I have sought to trace a phenomenon to its causes I have also sought to inquire whether these causes are likely to be permanent, a question which it is well to ask even when no answer can be given. I have attributedEdition: current; Page: [10] less to the influence of democracy than most of my predecessors have done, believing that explanations drawn from a form of government, being easy and obvious, ought to be cautiously employed. Someone has said that the end of philosophy is to diminish the number of causes, as the aim of chemistry is to reduce that of the elemental substances. But it is an end not to be hastily pursued. A close analysis of social and political phenomena often shows us that causes are more complex than had at first appeared, and that that which had been deemed the main cause is active only because some inconspicuous, but not less important, condition is also present. The inquisition of the forces which move society is a high matter; and even where certainty is unattainable it is some service to science to have determined the facts, and correctly stated the problems, as Aristotle remarked long ago that the first step in investigation is to ask the right questions.

I have, however, dwelt long enough upon the perils of the voyage: it is now time to put to sea. We shall begin with a survey of the national government, examining its nature and describing the authorities which compose it.

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Part I: The National Government

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chapter 2

The Nation and the States

Some years ago the American Protestant Episcopal Church was occupied at its triennial convention in revising its liturgy. It was thought desirable to introduce among the short sentence prayers a prayer for the whole people; and an eminent New England divine proposed the words “O Lord, bless our nation.” Accepted one afternoon on the spur of the moment, the sentence was brought up next day for reconsideration, when so many objections were raised by the laity to the word “nation,” as importing too definite a recognition of national unity, that it was dropped, and instead there were adopted the words “O Lord, bless these United States.”

To Europeans who are struck by the patriotism and demonstrative national pride of their transatlantic visitors, this fear of admitting that the American people constitute a nation seems extraordinary. But it is only the expression on its sentimental side of the most striking and pervading characteristic of the political system of the country, the existence of a double government, a double allegiance, a double patriotism. America—I call it America (leaving out of sight South America, Canada, and Mexico), in order to avoid using at this stage the term United States—America is a commonwealth of commonwealths, a republic of republics, a state which, while one, is nevertheless composed of other states even more essential to its existence than it is to theirs.

This is a point of so much consequence, and so apt to be misapprehended by Europeans, that a few sentences may be given to it.

When within a large political community smaller communities are found existing, the relation of the smaller to the larger usually appears in one or other of the two following forms. One form is that of a league, in which a number of political bodies, be they monarchies or republics, are bound together so as to constitute for certain purposes, and especially for theEdition: current; Page: [14] purpose of common defence, a single body. The members of such a composite body or league are not individual men but communities. It exists only as an aggregate of communities, and will therefore vanish so soon as the communities which compose it separate themselves from one another. Moreover it deals with and acts upon these communities only. With the individual citizen it has nothing to do, no right of taxing him, or judging him, or making laws for him, for in all these matters it is to his own community that the allegiance of the citizen is due. A familiar instance of this form is to be found in the Germanic Confederation as it existed from 1815 till 1866. The Hanseatic League in mediæval Germany, the Swiss Confederation down till the present century, are other examples.

In the second form, the smaller communities are mere subdivisions of that greater one which we call the nation. They have been created, or at any rate they exist, for administrative purposes only. Such powers as they possess are powers delegated by the nation, and can be overridden by its will. The nation acts directly by its own officers, not merely on the communities, but upon every single citizen; and the nation, because it is independent of these communities, would continue to exist were they all to disappear. Examples of such minor communities may be found in the departments of modern France and the counties of modern England. Some of the English counties were at one time, like Kent or Dorset, independent kingdoms or tribal districts; some, like Bedfordshire, were artificial divisions from the first. All are now merely local administrative areas, the powers of whose local authorities have been delegated from the national government of England. The national government does not stand by virtue of them, does not need them. They might all be abolished or turned into wholly different communities without seriously affecting its structure.

The American federal republic corresponds to neither of these two forms, but may be said to stand between them. Its central or national government is not a mere league, for it does not wholly depend on the component communities which we call the states. It is itself a commonwealth as well as a union of commonwealths, because it claims directly the obedience of every citizen, and acts immediately upon him through its courts and executive officers. Still less are the minor communities, the states, mere subdivisions of the Union, mere creatures of the national government, like the counties of England or the departments of France. They have over their citizens an authority which is their own, and not delegated by the central government. They have not been called into being by that government. They—that is, the older ones among them—existed before it. They could exist without it.

The central or national government and the state governments may beEdition: current; Page: [15] compared to a large building and a set of smaller buildings standing on the same ground, yet distinct from each other. It is a combination sometimes seen where a great church has been erected over more ancient homes of worship. First the soil is covered by a number of small shrines and chapels, built at different times and in different styles of architecture, each complete in itself. Then over them and including them all in its spacious fabric there is reared a new pile with its own loftier roof, its own walls, which may perhaps rest on and incorporate the walls of the older shrines, its own internal plan.1 The identity of the earlier buildings has however not been obliterated; and if the later and larger structure were to disappear, a little repair would enable them to keep out wind and weather, and be again what they once were, distinct and separate edifices. So the American states are now all inside the Union, and have all become subordinate to it. Yet the Union is more than an aggregate of states, and the states are more than parts of the Union. It might be destroyed, and they, adding a few further attributes of power to those they now possess, might survive as independent self-governing communities.

This is the cause of that immense complexity which startles and at first bewilders the student of American institutions, a complexity which makes American history and current American politics so difficult to the European who finds in them phenomena to which his own experience supplies no parallel. There are two loyalties, two patriotisms; and the lesser patriotism, as the incident in the Episcopal convention shows, is jealous of the greater. There are two governments, covering the same ground, commanding, with equally direct authority, the obedience of the same citizen.

The casual reader of American political intelligence in European newspapers is not struck by this phenomenon, because state politics and state affairs generally are seldom noticed in Europe. Even the traveller who visits America does not realize its importance, because the things that meet his eye are superficially similar all over the continent, and that which Europeans call the machinery of government is in America conspicuous chiefly by its absence. But a due comprehension of this double organization is the first and indispensable step to the comprehension of American institutions: as the elaborate devices whereby the two systems of government are kept from clashing are the most curious subject of study which those institutions present.

How did so complex a system arise, and what influences have mouldedEdition: current; Page: [16] it into its present form? This is a question which cannot be answered without a few words of historical retrospect. I am anxious not to stray far into history, because the task of describing American institutions as they now exist is more than sufficiently heavy for one writer and one book. But a brief and plain outline of the events which gave birth to the federal system in America, and which have nurtured national feeling without extinguishing state feeling, seems the most natural introduction to an account of the present Constitution, and may dispense with the need for subsequent explanations and digressions.

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chapter 3

The Origin of the Constitution

When in the reign of George III troubles arose between England and her North American colonists, there existed along the eastern coast of the Atlantic thirteen little communities, the largest of which (Virginia) had not much more than half a million of free people, and the total population of which did not reach three millions. All owed allegiance to the British Crown; all, except Connecticut and Rhode Island, received their governors from the Crown;1 in all, causes were carried by appeal from the colonial courts to the English Privy Council. Acts of the British Parliament ran there, as they now run in the British colonies, whenever expressed to have that effect, and could overrule such laws as the colonies might make. But practically each colony was a self-governing commonwealth, left to manage its own affairs with scarcely any interference from home. Each had its legislature, its own statutes adding to or modifying the English common law, its local corporate life and traditions, with no small local pride in its own history and institutions, superadded to the pride of forming part of the English race and the great free British realm. Between the various colonies there was no other political connection than that which arose from their all belonging to this race and realm, so that the inhabitants of each enjoyed in every one of the others the rights and privileges of British subjects.

When the oppressive measures of the home government roused the colonies, they naturally sought to organize their resistance in common.2 Singly they would have been an easy prey, for it was long doubtful whetherEdition: current; Page: [18] even in combination they could make head against regular armies. A congress of delegates from nine colonies held at New York in 1765 was followed by another at Philadelphia in 1774, at which twelve were represented, which called itself Continental (for the name American had not yet become established),3 and spoke in the name of “the good people of these colonies,” the first assertion of a sort of national unity among the English of America. The second congress, and the third which met in 1775 and in which thereafter all the colonies were represented, was a merely revolutionary body, called into existence by the war with the mother country. But in 1776 it declared the independence of the colonies, and in 1777 it gave itself a new legal character by framing the “Articles of Confederation and Perpetual Union,” 4 whereby the thirteen states (as they then called themselves) entered into a “firm league of friendship” with each other, offensive and defensive, while declaring that “each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right which is not by this Confederation expressly delegated to the United States in Congress assembled.”

This Confederation, which was not ratified by all the states till 1781, was rather a league than a national government, for it possessed no central authority except an assembly in which every state, the largest and the smallest alike, had one vote, and this assembly had no jurisdiction over the individual citizens. There was no federal executive, no federal judiciary, no means of raising money except by the contributions of the states, contributions which they were slow to render, no power of compelling the obedience to Congress either of states or of individuals. The plan corresponded to the wishes of the colonists, who did not yet deem themselves a nation, and who in their struggle against the power of the British Crown were resolved to set over themselves no other power, not even one of their own choosing. But it worked badly even while the struggle lasted, and after the immediate danger from England had been removed by the peace of 1783, it worked still worse, and was in fact, as Washington said, no better than anarchy. The states were indifferent to Congress and their common concerns, so indifferent that it was found difficult to procure a quorum of states for weeksEdition: current; Page: [19] or even months after the day fixed for meeting. Congress was impotent, and commanded respect as little as obedience. Much distress prevailed in the trading states, and the crude attempts which some legislatures made to remedy the depression by emitting inconvertible paper, by constituting other articles than the precious metals legal tender, and by impeding the recovery of debts, aggravated the evil, and in several instances led to seditious outbreaks.5 The fortunes of the country seemed at a lower ebb than even during the war with England.

Sad experience of their internal difficulties, and of the contempt with which foreign governments treated them, at last produced a feeling that some firmer and closer union was needed. A convention of delegates from five states met at Annapolis in Maryland in 1786 to discuss methods of enabling Congress to regulate commerce, which suffered grievously from the varying and often burdensome regulations imposed by the several states. It drew up a report which condemned the existing state of things, declared that reforms were necessary, and suggested a further general convention in the following year to consider the condition of the Union and the needed amendments in its Constitution. Congress, to which the report had been presented, approved it, and recommended the states to send delegates to a convention, which should “revise the Articles of Confederation, and report to Congress and the several legislatures such alterations and provisions therein as shall, when agreed to in Congress and confirmed by the States, render the Federal Constitution adequate to the exigencies of government and the preservation of the Union.”

The Convention thus summoned met at Philadelphia on the 14th May 1787, became competent to proceed to business on May 25th, when seven states were represented, and chose George Washington to preside. Delegates attended from every state but Rhode Island, and among these delegates was to be found nearly all the best intellect and the ripest political experience the United States then contained. The instructions they had received limited their authority to the revision of the Articles of Confederation and the proposing to Congress and the state legislatures such improvements as wereEdition: current; Page: [20] required therein.6 But with admirable boldness, boldness doubly admirable in Englishmen and lawyers, the majority ultimately resolved to disregard these restrictions, and to prepare a wholly new Constitution, to be considered and ratified neither by Congress nor by the state legislatures, but by the peoples of the several states.

This famous assembly, which consisted of fifty-five delegates, thirty-nine of whom signed the Constitution which it drafted, sat nearly five months, and expended upon its work an amount of labour and thought commensurate with the magnitude of the task and the splendour of the result. The debates were secret, and fortunately so, for criticism from without might have imperilled a work which seemed repeatedly on the point of breaking down, so great were the difficulties encountered from the divergent sentiments and interests of different parts of the country, as well as of the larger and smaller states.7 The records of the Convention were left in the hands of Washington, who in 1796 deposited them in the State Department. In 1819 they were published by J. Q. Adams. In 1840 there appeared the very full and valuable notes of the discussions kept by James Madison (afterwards twice president), who had been one of the most useful members of the body. From these records and notes8 the history of the Convention has been written.

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It is hard today, even for Americans, to realize how enormous those difficulties were. The Convention had not only to create de novo, on the most slender basis of preexisting national institutions, a national government for a widely scattered people, but they had in doing so to respect the fears and jealousies and apparently irreconcilable interests of thirteen separate commonwealths, to all of whose governments it was necessary to leave a sphere of action wide enough to satisfy a deep-rooted local sentiment, yet not so wide as to imperil national unity.9 Well might Hamilton say: “The establishment of a Constitution, in time of profound peace, by the voluntary consent of a whole people, is a prodigy to the completion of which I look forward with trembling anxiety.” 10 And well he might quote the words of David Hume (Essays, “The Rise of Arts and Sciences”): “To balance a large State or society, whether monarchical or republican, on general laws, is a work of so great difficulty that no human genius, however comprehensive, is able by the mere dint of reason and reflection to effect it. The judgments of many must unite in the work; experience must guide their labour; time must bring it to perfection; and the feeling of inconveniences must correct the mistakes which they inevitably fall into in their first trials and experiments.”

It was even a disputable point whether the colonists were already a nation or only the raw material out of which a nation might be formed.11 There were elements of unity, there were also elements of diversity. All spoke the same language. All, except a few descendants of Dutchmen and Swedes in New York and Delaware, some Germans in Pennsylvania, some children of French Huguenots in New England and the Middle states, belonged toEdition: current; Page: [22] the same race.12 All, except some Roman Catholics in Maryland, professed the Protestant religion. All were governed by the same English common law, and prized it not only as the bulwark which had sheltered their forefathers from the oppression of the Stuart kings, but as the basis of their more recent claims of right against the encroachments of George III and his colonial officers. In ideas and habits of life there was less similarity, but all were republicans, managing their affairs by elective legislatures, attached to local self-government, and animated by a common pride in their successful resistance to England, which they then hated with a true family hatred, a hatred to which her contemptuous treatment of them added a sting.

On the other hand their geographical position made communication very difficult. The sea was stormy in winter; the roads were bad; it took as long to travel by land from Charleston to Boston as to cross the ocean to Europe, nor was the journey less dangerous. The wealth of some states consisted in slaves, of others in shipping; while in others there was a population of small farmers, characteristically attached to old habits. Manufactures had hardly begun to exist. The sentiment of local independence showed itself in intense suspicion of any external authority; and most parts of the country were so thinly peopled that the inhabitants had lived practically without any government, and thought that in creating one they would be forging fetters for themselves. But while these diversities and jealousies made union difficult, two dangers were absent which have beset the framers of constitutions for other nations. There were no reactionary conspirators to be feared, for everyone prized liberty and equality. There were no questions between classes, no animosities against rank and wealth, for rank and wealth did not exist.

It was inevitable under such circumstances that the Constitution, while aiming at the establishment of a durable central power, should pay great regard to the existing centrifugal forces. It was and remains what its authors styled it, eminently an instrument of compromises; it is perhaps the most successful instance in history of what a judicious spirit of compromise may effect.13 Yet out of the points which it was for this reason obliged to leaveEdition: current; Page: [23] unsettled there arose fierce controversies, which after two generations, when accumulated irritation and incurable misunderstanding had been added to the force of material interests, burst into flame in the War of Secession.

The draft Constitution was submitted, as its last article provided, to conventions of the several states (i.e., bodies specially chosen by the people14 for the purpose) for ratification. It was to come into effect as soon as nine states had ratified, the effect of which would have been, in case the remaining states, or any of them, had rejected it, to leave such states standing alone in the world, since the old Confederation was of course superseded and annihilated. Fortunately all the states did eventually ratify the new Constitution, but two of the most important, Virginia and New York,15 did not do so till the middle of 1788, after nine others had already accepted it; and two, North Carolina and Rhode Island, at first refused, and only consented to enter the new Union more than a year later, when the government it had created had already come into operation.

There was a struggle everywhere over the adoption of the Constitution, a struggle which gave birth to the two great parties that for many years divided the American people. The chief source of hostility was the belief that a strong central government endangered both the rights of the states and the liberties of the individual citizen. Freedom, it was declared, would perish, freedom rescued from George III would perish at the hands of her own children.16 Consolidation (for the word centralization had not yet been invented) would extinguish the state governments and the local institutions they protected. The feeling was very bitter, and in some states, notably in Massachusetts and New York, the majorities were dangerously narrow. Had the decision been left to what is now called “the voice of the people,” that is, to the mass of the citizens all over the country, voting at the polls, the voice of the people would probably have pronounced against the Constitution, and this would have been still more likely if the question had been votedEdition: current; Page: [24] on everywhere upon the same day, seeing that several doubtful states were influenced by the approval which other states had already given. But the modern “plebiscital” method of taking the popular judgment had not been invented. The question was referred to conventions in the several states. The conventions were composed of able men, who listened to thoughtful arguments, and were themselves influenced by the authority of their leaders. The counsels of the wise prevailed over the prepossessions of the multitude. Yet these counsels would hardly have prevailed but for a cause which is apt to be now overlooked. This was the dread of foreign powers.17 The United States had at that time two European monarchies, Spain and England, as its neighbours on the American continent. France had lately held territories to the north of them in Canada, and to the south of them in Louisiana.18 She had been their ally against England, she became in a few years again the owner of territories west of the Mississippi. The fear of foreign interference, the sense of weakness, both at sea and on land, against the military monarchies of Europe, was constantly before the mind of American statesmen, and made them anxious to secure at all hazards a national government capable of raising an army and navy, and of speaking with authority on behalf of the new republic. It is remarkable that the danger of European aggression or complications was far more felt in the United States from 1783 down till about 1820, than it has been during the last half century when steam has brought Europe five times nearer than it then was.

Several of the conventions which ratified the Constitution accompanied their acceptance with an earnest recommendation of various amendments to it, amendments designed to meet the fears of those who thought that it encroached too far upon the liberties of the people. Some of these were adopted, immediately after the original instrument had come into force, by the method it prescribes, viz., a two-thirds majority in Congress and a majority in three-fourths of the states. They are the amendments of 1791, ten in number, and they constitute what the Americans, following a venerable English precedent, call a Bill or Declaration of Rights.

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The Constitution of 178919 deserves the veneration with which the Americans have been accustomed to regard it. It is true that many criticisms have been passed upon its arrangement, upon its omissions, upon the artificial character of some of the institutions it creates. Recognizing slavery as an institution existing in some states, and not expressly negativing the right of a state to withdraw from the Union, it has been charged with having contained the germ of civil war, though that germ took seventy years to come to maturity. And whatever success it has attained must be in large measure ascribed to the political genius, ripened by long experience, of the Anglo-American race, by whom it has been worked, and who might have managed to work even a worse drawn instrument. Yet, after all deductions, it ranks above every other written constitution for the intrinsic excellence of its scheme, its adaptation to the circumstances of the people, the simplicity, brevity, and precision of its language, its judicious mixture of definiteness in principle with elasticity in details.20 One is therefore induced to ask, before proceeding to examine it, to what causes, over and above the capacity of its authors, and the patient toil they bestowed upon it, these merits are due, or in other words, what were the materials at the command of the Philadelphia Convention for the achievement of so great an enterprise as the creation of a nation by means of an instrument of government. The American Constitution is no exception to the rule that everything which has power to win the obedience and respect of men must have its roots deep in the past, and that the more slowly every institution has grown, so much the more enduring is it likely to prove. There is little in that Constitution that is absolutely new. There is much that is as old as Magna Charta.

The men of the Convention had the experience of the English Constitution. That Constitution, very different then from what it is now, was even then not quite what they thought it. Their view was tinged not only by recollections of the influence exercised by King George III, an influence due to transitoryEdition: current; Page: [26] causes, but which made them overrate its monarchical element,21 but also by the presentation of it which they found in the work of Mr. Justice Blackstone. He, as was natural in a lawyer and a man of letters, described rather its theory than its practice, and its theory was many years behind its practice. The powers and functions of the cabinet, the overmastering force of the House of Commons, the intimate connection between legislation and administration, these which are to us now the main characteristics of the English Constitution were still far from fully developed. But in other points of fundamental importance they appreciated and turned to excellent account its spirit and methods.

They had for their oracle of political philosophy the treatise of Montesquieu on the spirit of laws, which, published anonymously at Geneva forty years before, had won its way to an immense authority on both sides of the ocean. Montesquieu, contrasting the private as well as public liberties of Englishmen with the despotism of continental Europe, had taken the Constitution of England as his model system, and had ascribed its merits to the division of legislative, executive, and judicial functions which he discovered in it, and to the system of checks and balances whereby its equilibrium seemed to be preserved. No general principle of politics laid such hold on the constitution-makers and statesmen of America as the dogma that the separation of these three functions is essential to freedom. It had already been made the groundwork of several state constitutions. It is always reappearing in their writings; it was never absent from their thoughts. Of the supposed influence of other continental authors, such as Rousseau, or even of English thinkers such as Burke, there are few direct traces in the federal Constitution or in the classical contemporaneous commentary on and defence of it22 which we owe to the genius of Hamilton and his hardly less famous coadjutors, Madison and Jay. But we need only turn to the Declaration of Independence and the original constitutions of the states, particularly the Massachusetts Constitution of 1780, to perceive that abstract theories regarding human rights had laid firm hold on the national mind. Such theories naturally expanded with the practice of republican government, and have at various times been extremely potent factors in American history. But the influenceEdition: current; Page: [27] of France and her philosophers belongs chiefly to the years succeeding 1789, when Jefferson, who was fortunately absent in Paris during the Constitutional Convention, headed the democratic propaganda.

Further, they had the experience of their colonial and state governments, and especially, for this was freshest and most in point, the experience of the working of the state constitutions, framed at or since the date when the colonies threw off their English allegiance. Many of the Philadelphia delegates had joined in preparing these instruments: all had been able to watch and test their operation. They compared notes as to the merits, tested by practice, of the devices which their states had respectively adopted. They had the inestimable advantage of knowing written or rigid constitutions in the concrete; that is to say, of comprehending how a system of government actually moves and plays under the control of a mass of statutory provisions defining and limiting the powers of its several organs. The so-called Constitution of England consists largely of customs, precedents, traditions, understandings, often vague and always flexible. It was quite a different thing, and for the purpose of making a constitution for the American nation an even more important thing, to have lived under and learnt to work systems determined by the hard and fast lines of a single document having the full force of law, for this experience taught them how much might safely be included in such a document and how far room must be left under it for unpredictable emergencies and unavoidable development.

Lastly, they had in the principle of the English common law that an act done by any official person or lawmaking body beyond his or its legal competence is simply void, a key to the difficulties which the establishment of a variety of authorities not subordinate to one another, but each supreme in its own defined sphere, necessarily involved. The application of this principle made it possible not only to create a national government which should leave free scope for the working of the state governments, but also so to divide the powers of the national government among various persons and bodies as that none should absorb or overbear the others. By what machinery these objects were attained will appear when we come to consider the effect of a written or rigid constitution embodying a fundamental law, and the functions of the judiciary in expounding and applying such a law.23

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chapter 4

Nature of the Federal Government

The acceptance of the Constitution of 1789 made the American people a nation. It turned what had been a league of states into a federal state, by giving it a national government with a direct authority over all citizens. But as this national government was not to supersede the governments of the states, the problem which the Constitution-makers had to solve was twofold. They had to create a central government. They had also to determine the relations of this central government to the states as well as to the individual citizen. An exposition of the Constitution and criticism of its working must therefore deal with it in these two aspects, as a system of national government built up of executive powers and legislative bodies, like the monarchy of England or the republic of France, and as a federal system linking together and regulating the relations of a number of commonwealths which are for certain purposes, but for certain purposes only, subordinated to it. It will conduce to clearness if these two aspects are kept distinct; and the most convenient course will be to begin with the former, and first to describe the American system as a national system, leaving its federal character for the moment on one side.

It must, however, be remembered that the Constitution does not profess to be a complete scheme of government, creating organs for the discharge of all the functions and duties which a civilized community undertakes. It presupposes the state governments. It assumes their existence, their wide and constant activity. It is a scheme designed to provide for the discharge of such and so many functions of government as the states did not, and indeed could not, or at any rate could not adequately, possess and discharge. It is therefore, so to speak, the complement and crown of the state constitutions, which must be read along with it and into it in order to makeEdition: current; Page: [29] it cover the whole field of civil government, as do the constitutions of such countries as France, Belgium, Italy.

The administrative, legislative, and judicial functions for which the federal Constitution provides are those relating to matters which must be deemed common to the whole nation, either because all the parts of the nation are alike interested in them, or because it is only by the nation as a whole that they can be satisfactorily undertaken. The chief of these common or national matters are:1

  • War and peace: treaties and foreign relations generally
  • Army and navy
  • Federal courts of justice
  • Commerce, foreign and between the several states
  • Currency
  • Copyright and patents
  • The post office and post roads
  • Taxation for the foregoing purposes, and for the general support of the government
  • The protection of citizens against unjust or discriminating legislation by any state2

This list includes the subjects upon which the national legislature has the right to legislate, the national executive to enforce the federal laws and generally to act in defence of national interests, the national judiciary to adjudicate. All other legislation and administration is left to the several states, without power of interference by the federal legislature or federal executive.

Such then being the sphere of the national government, let us see in what manner it is constituted, of what departments it consists.

The framers of this government set before themselves four objects as essential to its excellence, viz.:

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  • Its vigour and efficiency
  • The independence of each of its departments (as being essential to the permanency of its form)
  • Its dependence on the people
  • The security under it of the freedom of the individual

The first of these objects they sought by creating a strong executive, the second by separating the legislative, executive, and judicial powers from one another, and by the contrivance of various checks and balances, the third by making all authorities elective and elections frequent, the fourth both by the checks and balances aforesaid, so arranged as to restrain any one department from tyranny, and by placing certain rights of the citizen under the protection of the written Constitution.

They had neither the rashness nor the capacity necessary for constructing a constitution a priori. There is wonderfully little genuine inventiveness in the world, and perhaps least of all has been shown in the sphere of political institutions. These men, practical politicians who knew how infinitely difficult a business government is, desired no bold experiments. They preferred, so far as circumstances permitted, to walk in the old paths, to follow methods which experience had tested.3 Accordingly they started from the system on which their own colonial governments, and afterwards their state governments, had been conducted. This system bore a general resemblance to the British Constitution; and in so far it may with truth be said that the British Constitution became a model for the new national government. They held England to be the freest and best-governed country in the world, but were resolved to avoid the weak points which had enabled King George III to play the tyrant, and which rendered English liberty, as they thought, far inferior to that which the constitutions of their own states secured. With this venerable mother, and these children, better in their judgment than the mother, before their eyes, they created an executive magistrate, the president, on the model of the state governor, and of the British Crown. They created a legislature of two houses, Congress, on the model of the two houses of their state legislatures, and of the British Parliament. And following the precedent of the British judges, irremovableEdition: current; Page: [31] except by the Crown and Parliament combined, they created a judiciary appointed for life, and irremovable save by impeachment.4

In these great matters, however, as well as in many lesser matters, they copied not so much the Constitution of England as the constitutions of their several states, in which, as was natural, many features of the English Constitution had been embodied. It has been truly said that nearly every provision of the federal Constitution that has worked well is one borrowed from or suggested by some state constitution; nearly every provision that has worked badly is one which the Convention, for want of a precedent, was obliged to devise for itself. To insist on this is not to detract from the glory of that illustrious body, for if we are to credit them with less inventiveness than has sometimes been claimed for them, we must also credit them with a double portion of the wisdom which prefers experience to a priori theory, and the sagacity which selects the best materials from a mass placed before it, aptly combining them to form a new structure.5

Of minor divergences between their work and the British Constitution I shall speak subsequently. But one profound difference must be noted here. The British Parliament had always been, was then, and remains now, a sovereign and constituent assembly. It can make and unmake any and every law, change the form of government or the succession to the Crown, interfere with the course of justice, extinguish the most sacred private rights of the citizen. Between it and the people at large there is no legal distinction, because the whole plenitude of the people’s rights and powers resides in it, just as if the whole nation were present within the chamber where it sits. In point of legal theory it is the nation, being the historical successor of the Folk Moot of our Teutonic forefathers. Both practically and legally, it is today the only and the sufficient depository of the authority of the nation; and is therefore, within the sphere of law, irresponsible and omnipotent.

In the American system there exists no such body. Not merely Congress alone, but also Congress and the president conjoined, are subject to the Constitution, and cannot move a step outside the circle which the Constitution has drawn around them. If they do, they transgress the law and exceed their powers. Such acts as they may do in excess of their powers are void, andEdition: current; Page: [32] may be, indeed ought to be, treated as void by the meanest citizen. The only power which is ultimately sovereign, as the British Parliament is always and directly sovereign, is the people of the states, acting in the manner prescribed by the Constitution, and capable in that manner of passing any law whatever in the form of a constitutional amendment.

This fundamental divergence from the British system is commonly said to have been forced upon the men of 1787 by the necessity, in order to safeguard the rights of the several states, of limiting the competence of the national government.6 But even supposing there had been no states to be protected, the jealousy which the American people felt of those whom they chose to govern them, their fear lest one power in the government should absorb the rest, their anxiety to secure the primordial rights of the citizens from attack, either by magistrate or by legislature, would doubtless have led, as happened with the earlier constitutions of revolutionary France, to the creation of a supreme constitution or fundamental instrument of government, placed above and controlling the national legislature itself. They had already such fundamental instrument in the charters of the colonies, which had passed into the constitutions of the several states; and they would certainly have followed, in creating their national constitution, a precedent which they deemed so precious.

The subjection of all the ordinary authorities and organs of government to a supreme instrument expressing the will of the sovereign people, and capable of being altered by them only, has been usually deemed the most remarkable novelty of the American system. But it is merely an application to the wider sphere of the nation, of a plan approved by the experience of the several states. And the plan had, in these states, been the outcome rather of a slow course of historical development than of conscious determination taken at any one point of their progress from petty settlements to powerful republics. Nevertheless, it may well be that the minds of the leaders who guided this development were to some extent influenced and inspired by recollections of the English Commonwealth of the seventeenth century, which had seen the establishment, though for a brief space only, of a genuine supreme or rigid constitution, in the form of the famous Instrument of Government of 1653, and some of whose sages had listened to the discourses in which James Harrington, one of the most prescient minds ofEdition: current; Page: [33] that great age, showed the necessity for such a constitution, and laid down its principles, suggesting that, in order to give it the higher authority, it should be subscribed by the people themselves.

We may now proceed to consider the several departments of the national government. It will be simplest to treat of each separately, and then to examine the relations of each to the others, reserving for subsequent chapters an account of the relations of the national government as a whole to the several states.

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chapter 5

The President

Everyone who undertakes to describe the American system of government is obliged to follow the American division of it into the three departments—executive, legislative, judicial. I begin with the executive, as the simplest of the three.

The president is the creation of the Constitution of 1789. Under the Confederation there was only a presiding officer of Congress, but no head of the nation.

Why was it thought necessary to have a president at all? The fear of monarchy, of a strong government, of a centralized government, prevailed widely in 1787. George III was an object of bitter hatred: he remained a bogey to succeeding generations of American children. The Convention found it extremely hard to devise a satisfactory method of choosing the president, nor has the method they adopted proved satisfactory. That a single head is not necessary to a republic might have been suggested to the Americans by those ancient examples to which they loved to recur. The experience of modern Switzerland has made it still more obvious to us now. Yet it was settled very early in the debates of 1787 that the central executive authority must be vested in one person; and the opponents of the draft Constitution, while quarrelling with his powers, did not accuse his existence.

The explanation is to be found not so much in the wish to reproduce the British Constitution as in the familiarity of the Americans, as citizens of the several states, with the office of state governor (in some states then called president) and in their disgust with the feebleness which Congress had shown under the Confederation in its conduct of the war, and, after peace was concluded, of the general business of the country. Opinion called for a man, because an assembly had been found to lack promptitude and vigour. And it may be conjectured that the alarms felt as to the danger from oneEdition: current; Page: [35] man’s predominance were largely allayed by the presence of George Washington. Even while the debates were proceeding, everyone must have thought of him as the proper person to preside over the Union as he was then presiding over the Convention. The creation of the office would seem justified by the existence of a person exactly fitted to fill it, one whose established influence and ripe judgment would repair the faults then supposed to be characteristic of democracy, its impulsiveness, its want of respect for authority, its incapacity for pursuing a consistent line of action.

Hamilton felt so strongly the need for having a vigorous executive who could maintain a continuous policy, as to propose that the head of the state should be appointed for good behaviour, i.e., for life, subject to removal by impeachment. The proposal was disapproved, though it received the support of persons so democratically minded as Madison and Edmund Randolph; but nearly all sensible men, including many who thought better of democracy than Hamilton himself did, admitted that the risks of foreign war, risks infinitely more serious in the infancy of the Republic than they have subsequently proved, required the concentration of executive powers into a single hand. And the fact that in every one of their commonwealths there existed an officer in whom the state constitution vested executive authority, balancing him against the state legislature, made the establishment of a federal chief magistrate seem the obvious course.

Assuming that there was to be such a magistrate, the statesmen of the Convention, like the solid practical men they were, did not try to construct him out of their own brains, but looked to some existing models. They therefore made an enlarged copy of the state governor, or to put the same thing differently, a reduced and improved copy of the English king. He is George III shorn of a part of his prerogative by the intervention of the Senate in treaties and appointments, of another part by the restriction of his action to federal affairs, while his dignity as well as his influence are diminished by his holding office for four years instead of for life.1 His salary is too small to permit him either to maintain a court or to corrupt the legislature; nor can he seduce the virtue of the citizens by the gift of titles of nobility, for such titles are altogether forbidden. Subject to theseEdition: current; Page: [36] precautions, he was meant by the Constitution-framers to resemble the state governor and the British king, not only in being the head of the executive, but in standing apart from and above political parties. He was to represent the nation as a whole, as the governor represented the state commonwealth. The independence of his position, with nothing either to gain or to fear from Congress, would, it was hoped, leave him free to think only of the welfare of the people.

This idea appears in the method provided for the election of a president. To have left the choice of the chief magistrate to a direct popular vote over the whole country would have raised a dangerous excitement, and would have given too much encouragement to candidates of merely popular gifts. To have entrusted it to Congress would have not only subjected the executive to the legislature in violation of the principle which requires these departments to be kept distinct, but have tended to make him the creature of one particular faction instead of the choice of the nation. Hence the device of a double election was adopted, perhaps with a faint reminiscence of the methods by which the doge was then still chosen at Venice and the emperor in Germany. The Constitution directs each state to choose a number of presidential electors equal to the number of its representatives in both houses of Congress. Some weeks later, these electors meet in each state on a day fixed by law, and give their votes in writing for the president and vice-president.2 The votes are transmitted, sealed up, to the capital and there opened by the president of the Senate in the presence of both houses and counted. To preserve the electors from the influence of faction, it is provided that they shall not be members of Congress, nor holders of any federal office. This plan was expected to secure the choice by the best citizens of each state, in a tranquil and deliberate way, of the man whom they in their unfettered discretion should deem fittest to be chief magistrate of the Union. Being themselves chosen electors on account of their personal merits, they would be better qualified than the masses to select an able and honourable man for president. Moreover, as the votes are counted promiscuously, and not by states, each elector’s voice would have its weight. He might be in a minority in his own state, but his vote would nevertheless tell because it would be added to those given by electors in other states for the same candidate.

No part of their scheme seems to have been regarded by the Constitution-makersEdition: current; Page: [37] of 1787 with more complacency than this,3 although no part had caused them so much perplexity. No part has so utterly belied their expectations. The presidential electors have become a mere cog-wheel in the machine; a mere contrivance for giving effect to the decision of the people. Their personal qualifications are a matter of indifference. They have no discretion, but are chosen under a pledge—a pledge of honour merely, but a pledge which has never (since 1796) been violated—to vote for a particular candidate. In choosing them the people virtually choose the president, and thus the very thing which the men of 1787 sought to prevent has happened—the president is chosen by a popular vote. Let us see how this has come to pass.

In the first two presidential elections (in 1789 and 1792) the independence of the electors did not come into question, because everybody was for Washington, and parties had not yet been fully developed. Yet in the election of 1792 it was generally understood that electors of one way of thinking were to vote for Clinton as their second candidate (i.e, for vice-president) and those of the other side for John Adams. In the third election (1796) no pledges were exacted from electors, but the election contest in which they were chosen was conducted on party lines, and although, when the voting by the electors arrived, some few votes were scattered among other persons, there were practically only two presidential candidates before the country, John Adams and Thomas Jefferson, for the former of whom the electors of the Federalist party, for the latter those of the Republican (Democratic)4 party were expected to vote. The fourth election was a regular party struggle, carried on in obedience to party arrangements. Both Federalists and Republicans put the names of their candidates for president and vice-president before the country, and round these names the battle raged. The notion of leaving any freedom or discretion to the electors had vanished, for it was felt that an issue so great must and could be decided by the nation alone. From that day till now there has never been any question of reviving the true and original intent of the plan of double election. Even in 1876 the suggestion that the disputed election might be settled by leaving the electors free to choose, found no favor. Hence nothing has ever turned on theEdition: current; Page: [38] personality of the electors. They are now so little significant that to enable the voter to know for which set of electors his party desires him to vote, it is often thought well to put the name of the presidential candidate whose interest they represent at the top of the voting ticket on which their own names are printed. Nor need this extinction of the discretion of the electors be regretted, becase what has happened in somewhat similar cases makes it certain that the electors would have so completely fallen under the control of the party organizations as to vote simply at the bidding of the party managers. Popular election is therefore, whatever may be its defects, a healthier method, for it enables the people to reject candidates whom the low morality of party managers would approve.

The completeness and permanence of this change has been assured by the method which now prevails of choosing the electors. The Constitution leaves the method to each state, and in the earlier days many states entrusted the choice to their legislatures. But as democratic principles became developed, the practice of choosing the electors by direct popular vote, originally adopted by Virginia, Pennsylvania, and Maryland, spread by degrees through the other states, till by 1832 South Carolina was the only state which retained the method of appointment by the legislature. She dropped it in 1868, and popular election now rules everywhere, though any state may go back to the old plan if it pleases.5 In some states the electors were for a time chosen by districts, like members of the House of Representatives. But the plan of choice by a single popular vote over the whole of the state found increasing favour, seeing that it was in the interest of the party for the time being dominant in the state. In 1828 Maryland was the only state which clung to district voting. She, too, adopted the “general ticket” system in 1832, since which year it was universal until 1891, when Michigan reverted to the district system, the party then dominant in her legislature conceiving that they would thereby secure some districts, and therefore some electors of their own colour, although they could not carry the state as a whole.6 (This in fact happened in 1892). Thus the issue comes directly before the people. The parties nominate their respective candidates, as hereafter described (Chapters 69 and 70), a tremendous “campaign” of stump speaking, newspaper writing, street parades, and torchlight processions sets in and rages for about four months: the polling for electors takes placeEdition: current; Page: [39] early in November, on the same day over the whole Union, and when the result is known the contest is over, because the subsequent meeting and voting of the electors in their several states is mere matter of form.

So far the method of choice by electors may seem to be merely a roundabout way of getting the judgment of the people. It is more than this. It has several singular consequences, unforeseen by the framers of the Constitution. It has made the election virtually an election by states, for the system of choosing electors by “general ticket” over the whole state causes the whole weight of a state to be thrown into the scale of one candidate, that candidate whose list of electors is carried in the given state.7 In the election of 1884, New York State had thirty-six electoral votes. Each party ran its list or “ticket” of thirty-six presidential electors for the state, who were bound to vote for the party’s candidate, Mr. Blaine or Mr. Cleveland. The Democratic list (i.e., that which included the thirty-six Cleveland electors) was carried by a majority of 1,100 out of a total poll exceeding 1,100,000. Thus, all the thirty-six electoral votes of New York were secured for Mr. Cleveland, and these thirty-six determined the issue of the struggle over the whole Union, in which nearly 10,000,000 popular votes were cast. The hundreds of thousands of votes given in New York for the Blaine or Republican list did not go to swell the support which Mr. Blaine obtained in other states, but were utterly lost. Hence in a presidential election, the struggle concentrates itself in the doubtful states, where the great parties are pretty equally divided, and is languid in states where a distinct majority either way may be anticipated, because, since it makes no difference whether a minority be large or small, it is not worth while to struggle hard to increase a minority which cannot be turned into a majority. And hence also a man may be, and has been,8 elected president by a minority of popular votes.

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When such has been the fate of the plan of 1787, it need hardly be said that the ideal president, the great and good man above and outside party, whom the judicious and impartial electors were to choose, has not been secured. The ideal was realized once and once only in the person of George Washington. His successor in the chair (John Adams) was a leader of one of the two great parties then formed, the other of which has, with some changes, lasted down to our own time. Jefferson, who came next, was the chief of that other party, and his election marked its triumph. Nearly every subsequent president has been elected as a party leader by a party vote, and has felt bound to carry out the policy of the men who put him in power.9 Thus instead of getting an Olympian president raised above faction, America has, despite herself, reproduced the English system of executive government by a party majority, reproduced it in a more extreme form, because in England the titular head of the state, in whose name administrative acts are done, stands in isolated dignity outside party politics. The disadvantages of the American plan are patent; but in practice they are less serious than might be expected, for the responsibility of a great office and the feeling that he represents the whole nation have tended to sober and control the president. Except as regards patronage, he has seldom acted as a mere tool of faction, or sought to abuse his administrative powers to the injury of his political adversaries.

The Constitution prescribes no limit for the reeligibility of the president. He may go on being chosen for one four year period after another for the term of his natural life. But tradition has supplied the place of law. Elected in 1789, Washington submitted to be reelected in 1792. But when he had served his second term he absolutely refused to serve a third, urging the risk to republican institutions of suffering the same man to continue constantly in office. Jefferson, Madison, Monroe, and Jackson obeyed the precedent, and did not seek, nor their friends for them, reelection after two terms. After them no president was reelected, except Lincoln, down to General Grant. Grant was president from 1869 to 1873, and again from 1873 to 1877, then came Mr. Hayes; and in 1880 an attempt was made to break the unwritten rule in Grant’s favour. Each party, as will be more fully explainedEdition: current; Page: [41] hereafter, nominates its candidates in a gigantic party assembly called the national convention. In the Republican party convention of 1880 a powerful group for the delegates put forward Grant for nomination as the party candidate, alleging his special services as a ground for giving him the honour of a third term. Had there not been among the Republicans themselves a section personally hostile to Grant, or rather to those who surrounded him, the attempt might have succeeded, though it would probably have involved defeat at the polls. But this hostile section found the prepossession of the people against a third term so strong that, by appealing to the established tradition, they defeated Grant in the convention, and nominated Mr. Garfield, who was victorious at the ensuing election. This precedent was at that time taken as practically decisive for the future, because General Grant, though his administration had been marked by grave faults, was an exceptionally popular figure. A principle affirmed against him seemed not likely to be departed from in favour of any aspirant for many elections to come. And in 1912 a large body of seceders from the National Republican Convention held a convention of their own which nominated Mr. Roosevelt who had served two terms all but a few months.

The Constitution (amend. XII, which in this point repeats the original art. XI, § 1) requires for the choice of a president “a majority of the whole number of electors appointed.” If no such majority is obtained by any candidate, i.e, if the votes of the electors are so scattered among different candidates, that out of the total number (which in 1912 was 529, and will increase as new members are added to the Senate and the House) no one receives an absolute majority (i.e, at least 265 votes), the choice goes over to the House of Representatives, who are empowered to choose a president from among the three candidates who have received the largest number of electoral votes. In the House the vote is taken by states, a majority of all the states (i.e, at present of twenty-five states out of forty-eight) being necessary for a choice. As all the members of the House from a state have but one collective vote, it follows that if they are equally divided among themselves, the vote of that state is lost. Supposing this to be the case in half the total number of states, or supposing the states so to scatter their votes that no candidate receives an absolute majority, then no president is chosen, and the vice-president (supposing one to have been chosen) becomes president.

Only twice has the election gone to the House. In 1800, when the rule still prevailed that the candidate with the largest number of votes became president, and the candidate who came second vice-president, Jefferson andEdition: current; Page: [42] Aaron Burr received the same number. The Jeffersonian electors meant to make him president, but as they had also all voted for Burr, there was a tie. After a long struggle the House chose Jefferson. Feeling ran high, and had Jefferson been kept out by the votes of the Federalist party, who hated him more than Burr, his partisans might possibly have taken up arms.10 In 1824 Andrew Jackson had 99 electoral votes, and his three competitors (J. Q. Adams, Crawford, and Clay) 162 votes between them. The House chose J. Q. Adams by a vote of thirteen states against seven for Jackson and four for Crawford.11 In this mode of choice, the popular will may be still less recognized than it is by the method of voting through presidential electors, for if the twenty-five smaller states were through their representatives in the House to vote for candidate A, and the twenty-three larger states for candidate B, A would be seated, though the population of the former set of states is, of course, very much below that of the latter.

The Constitution seems, though its language is not explicit, to have intended to leave the counting of the votes to the president of the Senate (the vice-president of the United States); and in early days this officer superintended the count, and decided questions as to the admissibility of doubtful votes. However, Congress has in virtue of its right to be present at the counting assumed the further right of determining all questions which arise regarding the validity of electoral votes, and has, it need hardly be said, determined them on each occasion from party motives. This would be all very well were a decision by Congress always certain of attainment. But it often happens that one party has a majority in the Senate, another party in the House, and then, as the two houses vote separately and each differently from the other, a deadlock results. I must pass by the minute and often tedious controversies which have arisen on these matters. But one case deserves special mention, for it illustrates an ingrained and formidable weakness of the present electoral system.

In 1876, Mr. Hayes was the Republican candidate for the presidency, Mr. Tilden the Democratic. The former carried his list of electors in seventeen states, whose aggregate electors numbered 163, and the latter carried his list also in 17 states, whose aggregate electors numbered 184. (As the total number of electors was then 369, 184 was within one of beingEdition: current; Page: [43] a half of that number.) Four states remained out of the total thirty-eight, and in each of these four two sets of persons had been chosen by popular vote, each set claiming, on grounds too complicated to be here explained, to be the duly chosen electors from those states respectively.12 The electoral votes of these four states amounted to twenty-two, so that if in any one of them the Democratic set of electors had been found to have been duly chosen, the Democrats would have secured a majority of electoral votes, whereas even if in all of them Republican electors had been chosen, the Republican electors would have had a majority of one only. In such circumstances the only course for the Republican leaders, as good party men, was to claim all these doubtful states. This they promptly did—party loyalty is the last virtue that deserts politicians—and the Democrats did the like.

Meanwhile the electors met and voted in their respective states. In the four disputed states the two sets of electors met, voted, and sent up to Washington, from each of these four, double returns of the electoral votes. The result of the election evidently depended on the question which set of returns should be admitted as being the true and legal returns from the four states respectively. The excitement over the whole Union was intense, and the prospect of a peaceful settlement remote, for the Constitution appeared to provide no means of determining the legal questions involved. Congress, as remarked above, had in some previous instances assumed jurisdiction, but seeing that the Republicans had a majority in the Senate, and the Democrats in the House of Representatives, it was clear that the majority in one House would vote for admitting the Republican returns, the majority in the other for admitting the Democratic. Negotiations between the leaders at last arranged a method of escape. A statute was passed creating an electoral commission of five senators, five members of the House of Representatives, and five justices of the Supreme Court, who were to determine all questions as to the admissibility of electoral votes from states sending up double returns.13 Everything now turned on the composition of the electoral commission, a body such as had never before been created.Edition: current; Page: [44] The Senate appointed three Republicans and two Democrats. The House of Representatives appointed three Democrats and two Republicans. So far there was an exact balance. The statute had indicated four of the justices who were to sit, two Republicans and two Democrats, and had left these four to choose a fifth. This fifth was the odd man whose casting vote would turn the scale. The four justices chose a Republican justice, and this choice practically settled the result, for every vote given by the members of the commission was a strict party vote.14 They were nearly all lawyers, and had all taken an oath of impartiality. The legal questions were so difficult, and for the most part so novel, that it was possible for a sound lawyer and honest man to take in each case either the view for which the Republicans or that for which the Democrats contended. Still it is interesting to observe that the legal judgment of every commissioner happened to coincide with his party proclivities.15 All the points in dispute were settled by a vote of eight to seven in favour of the returns transmitted by the Republican electors in the four disputed states, and Mr. Hayes was accordingly declared duly elected by a majority of 185 electoral votes against 184. The decision may have been right as matter of law—it is still debated by lawyers—and there had been so much force and fraud on both sides in Florida, Louisiana, and South Carolina, that no one can say on which side substantial justice lay. Mr. Tilden deserves the credit of having induced his friends both to agree to a compromise slightly to his own disadvantage, and to accept peaceably, though with long and loud complaints, a result which baffled their hopes. I tell the story here because it points to a grave danger in the presidential system. The stake played for is so high that the temptation to fraud is immense; and as the ballots given for the electors by the people are received and counted by state authorities under state laws, an unscrupulous state faction has opportunities for fraud at its command. In 1887 Congress, having had the subject pressed on its attention by successive presidents, took steps to provide against a recurrence of the danger described. It passed a statute enacting that tribunals appointed in and by each state shall determine what electoral votes from the state are legal votes; and that if the state has appointed no such tribunal, the two houses of Congress shall determine which votes (in case of double returns) are legal. If the houses differ theEdition: current; Page: [45] vote of the state is lost. It is, of course, possible under this plan that the state tribunal may decide unfairly; but the main thing is to secure some decision. Unfairness is better than uncertainty.

A president is removable during his term of office only by means of impeachment, a procedure familiar on both sides of the Atlantic in 1787, when the famous trial of Warren Hastings was still lingering on at Westminster. Impeachment, which had played no small part in the development of English liberties, was deemed by the Americans of those days a valuable element in their new Constitution, for it enabled Congress to depose, and the fear of it might be expected to restrain, a treasonably ambitious president. In obedience to state precedents,16 it is by the House of Representatives that the president is impeached, and by the Senate, sitting as a law court, with the chief justice of the Supreme Court, the highest legal official of the country, as presiding officer, that he is tried. A two-thirds vote is necessary to conviction, the effect of which is simply to remove him from and disqualify him for office, leaving him “liable to indictment, trial, judgment, and punishment, according to law” (Constitution, art. I, § 3, art. II, § 4). The impeachable offences are “treason, bribery, or other high crimes and misdemeanours,” an expression which some have held to cover only indictable offences, while others extend it to include acts done in violation of official duty and against the interests of the nation, such acts, in fact, as were often grounds for the English impeachments of the seventeenth century. As yet, Andrew Johnson is the only president who has been impeached. His headstrong conduct made his removal desirable, but as it was doubtful whether any single offence justified a conviction, several senators politically opposed to him voted for acquittal.17 A two-thirds majority not having been secured upon any one article (the numbers being thirty-five for conviction, nineteen for acquittal) he was declared acquitted, a result now generally approved.

In case of the removal of a president by his impeachment, or of his death, resignation, or inability to discharge his duties, the vice-president steps into his place. The vice-president is chosen at the same time, by the same electors, and in the same manner as the president. His only functions are toEdition: current; Page: [46] preside in the Senate and to succeed the president. Failing both president and vice-president it was formerly provided by statute, not by the Constitution, that the presiding officer for the time being of the Senate should succeed to the presidency, and, failing him, the Speaker of the House of Representatives. To this plan there was the obvious objection that it might throw power into the hands of the party opposed to that to which the lately deceased president belonged; and it has therefore been now (by an act of 1886) enacted that on the death of a president (including a vice-president who has succeeded to the presidency) the secretary of state shall succeed, and after him other officers of the administration, in the order of their rank. Five presidents (Harrison, Taylor, Lincoln, Garfield, McKinley) have died in office, the three latter killed by assassins, and been succeeded by vice-presidents, and in the first and third of these instances the succeeding vice-president has reversed the policy of his predecessor, and become involved in a quarrel with the party which elected him, such as has never yet broken out between a man elected to be president and his party. In practice very little pains are bestowed on the election of a vice-president. The convention which selects the party candidates usually gives the nomination to this post to a man in the second rank, sometimes as a consolation to a disappointed candidate for the presidential nomination, sometimes to a friend of such a disappointed candidate in order to “placate” his faction, sometimes to a person from whom large contributions to the campaign fund may be expected, sometimes as a compliment to an elderly leader who is personally popular, sometimes perhaps even to a man whom it is sought to shelve for the time being. If the party carries its candidate for president, it also as a matter of course carries its candidate for vice-president, and thus if the president happens to die, a man who may, like Tyler or Johnson, be of no great personal account, steps into the chief magistracy of the nation.

Edition: current; Page: [47]
the national government Presidential Powers and Duties fpage="47" lpage="61"
chapter 6

Presidential Powers and Duties

The powers and duties of the president as head of the federal executive are the following:

  • Command of federal army and navy and of militia of several states when called into service of the United States
    • Power to make treaties, but with advice and consent of the Senate, i.e., consent of two-thirds of senators present;
    • to appoint ambassadors and consuls, judges of Supreme Court, and all other higher federal officers, but with advice and consent of Senate;
    • to grant reprieves and pardons for offences against the United States, except in cases of impeachment;
    • to convene both houses on extraordinary occasions;
    • to disagree with (i.e., to send back for reconsideration) any bill or resolution passed by Congress, but subject to the power of Congress to finally pass the same, after reconsideration, by a two-thirds majority in each house
    • Duty to inform Congress of the state of the Union, and to recommend measures to Congress;
    • to commission all the officers of the United States;
    • to receive foreign ambassadors;
    • to “take care that the laws be faithfully executed”

These functions group themselves into four classes:

  • Those which relate to foreign affairs
  • Those which relate to domestic administration
  • Those which concern legislation
  • The power of appointment
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The conduct of foreign policy would have been a function of the utmost importance had not America, happy America, stood apart1 down till 1898 in a world of her own, unassailable by European powers, easily superior to the other republics of her continent, but with no present motive for aggression upon them. The president, however, has rarely been allowed a free hand in foreign policy. He cannot declare war, for that belongs to Congress, though to be sure he may, as President Polk did in 1845–46, bring affairs to a point at which it is hard for Congress to refrain from the declaration. Treaties require the approval of two-thirds of the Senate; and in order to secure this, it is usually necessary for the executive to be in constant communication with the Foreign Affairs Committee of that body. The House of Representatives has no legal right to interfere, but it often passes resolutions enjoining or disapproving a particular line of policy; and sometimes invites the Senate to coincide in these expressions of opinion, which then become weightier. The president is nowise bound by such resolutions, and has more than once declared that he does not regard them. But as some treaties, especially commercial treaties, cannot be carried out except by the aid of statutes, and as no war can be entered on without votes of money, the House of Representatives can sometimes indirectly make good its claim to influence. Many delicate questions, some of them not yet decided, have arisen upon these points, which the Constitution has, perhaps unavoidably, left in half light. In all free countries it is most difficult to define the respective spheres of the legislature and executive in foreign affairs, for while publicity and parliamentary control are needed to protect the people, promptitude and secrecy are the conditions of diplomatic success. Practically, however, and for the purposes of ordinary business, the president is independent of the House, while the Senate, though it can prevent his settling anything, cannot keep him from unsetling everything. He, or possibly his secretary of state, if the president should not have leisure to give close or continuous attention to foreign policy, retains an unfettered initiative, by means of which he may embroil the country abroad or excite passion at home.

The direct domestic authority of the president is in time of peace very small, because by far the larger part of law and administration belongs to the state governments, and because federal administration is regulated by statutes which leave little discretion to the executive. In war time, however, and especially in a civil war, it expands with portentous speed. Both as commander in chief of the army and navy, and as charged with the “faithfulEdition: current; Page: [49] execution of the laws,” the president is likely to be led to assume all the powers which the emergency requires. How much he can legally do without the aid of statutes is disputed, for the acts of President Lincoln during the earlier part of the War of Secession, including his proclamation suspending the writ of habeas corpus, were subsequently legalized by Congress; but it is at least clear that Congress can make him, as it did make Lincoln, almost a dictator. And how much the war power may include appears in this, that by virtue of it and without any previous legislative sanction President Lincoln issued his emancipation proclamations of 1862 and 1863, declaring all slaves in the insurgent states to be thenceforth free, although these states were deemed to be in point of law still members of the Union.2

It devolves on the executive as well as on Congress to give effect to the provisions of the Constitution whereby a republican form of government is guaranteed to every state; and a state may, on the application of its legislature, or executive (when the legislature cannot be convened), obtain protection against domestic violence. Where, as in Louisiana in 1873, there are two governments disputing by force the control of a state, or where an insurrection breaks out, as in Rhode Island in 1840–42, or where riots stop the movement of mail trains on a railroad, as happened in Illinois in 1894, this power becomes an important one, for it involves the employment of troops, and may enable the president (since it is usually on him that the duty falls) to establish the government he prefers to recognize.3 Fortunately the case has been one of rare occurrence.

The president has the right of speaking to the nation by addresses or proclamations, a right not expressly conferred by the Constitution, butEdition: current; Page: [50] inherent in his position. Occasions requiring its exercise are uncommon. On entering office, it is usual for the new magistrate to issue an inaugural address, stating his views on current public questions. Washington also put forth a farewell address, but Jackson’s imitation of that famous document was condemned as a piece of vainglory. It is thought bad taste for the president to go round on a political stumping tour, and Andrew Johnson injured himself by the practice. But he retains the right of making political speeches with all the other rights of the ordinary citizen, including that of voting at federal as well as state elections in his own state. He is constantly invited to speak on nonpartisan occasions, and he is free to confer with and advise the leaders of his own party.

The position of the president as respects legislation is a peculiar one. The king of England is a member of the English legislature, because Parliament is in theory his Great Council which he summons and in which he presides, hearing the complaints of the people, and devising legislative remedies.4 It is as a member of the legislature that he assents to the bills it presents to him, and the term “veto power,” since it seems to suggest an authority standing outside to approve or reject, does not happily describe his right of dealing with a measure which has been passed by the council over which he is deemed to preside, though he now no longer appears in it except at the beginning and ending of a session. The American president is not a member of either house of Congress. He is a separate authority whom the people, for the sake of protecting themselves against abuses of legislative power, have associated with the legislature for the special purpose of arresting its action by his disapproval.5 So again the king of England can initiate legislation. According to the older Constitution, statutes purported to be made, and were till the middle of the fifteenth century actually made, by him, but “with the advice and consent of the Lords Spiritual and Temporal and of the Commons.” 6 According to the modern practice, nearly allEdition: current; Page: [51] important measures are brought into Parliament by his ministers, and nominally under his instructions. The American president cannot introduce bills, either directly or through his ministers, for they do not sit in Congress.7 All that the Constitution permits him to do in this direction is to inform Congress of the state of the nation, and to recommend the measures which his experience in administration shows to be necessary. This latter function is discharged by the messages which the president addresses to Congress. The most important is that sent by the hands of his private secretary at the beginning of each session.

George Washington used to deliver his addresses orally, like an English king, and drove in a coach and six to open Congress with something of an English king’s state. But Jefferson, when his turn came in 1801, whether from republican simplicity, as he said himself, or because he was a poor speaker, as his critics said, began the practice of sending communications in writing; and this has been followed ever since. The message usually—for besides the long one at the opening of a congressional session, others are sent as occasion requires—discusses the leading questions of the moment, indicates mischiefs needing a remedy, and suggests the requisite legislation. There are however persons in Congress who view with jealousy the action of the executive, though justified by precedent, when a bill drafted by a member of the administration is laid before either house, and as no minister sits there to explain and defend bills and there may be no majority to pass them, the message may be a shot in the air without practical result. It is rather a manifesto, or declaration of opinion and policy, than a step towards legislation. Congress need not take action; members go their own ways and bring in their own bills.

Far more effective is the president’s part in the last stage of legislation, for here he finds means provided for carrying out his will. When a bill is presented to him, he may sign it, and his signature makes it law. If,Edition: current; Page: [52] however, he disapproves of it, he returns it within ten days to the house in which it originated, with a statement of his grounds of disapproval. If both houses take up the bill again and pass it by a two-thirds majority in each house, it becomes law forthwith without requiring the president’s signature.8 If it fails to obtain this majority it drops.

Considering that the arbitrary use, by George III and his colonial governors, of the power of refusing bills passed by a colonial legislature had been a chief cause of the Revolution of 1776, it is to the credit of the Americans that they inserted this apparently undemocratic provision (which, however, existed in the Constitution of Massachusetts of 1780) in the Constitution of 1789.9 It has worked wonderfully well. Most presidents have employed it sparingly, and only where they felt either that there was a case for delay, or that the country would support them against the majority in Congress. Perverse or headstrong presidents have been generally defeated by the use of the two-thirds vote to pass the bill over their objections. Washington “returned” or vetoed two bills only; his successors down till 1830, seven. Jackson made a bolder use of his power—a use which his opponents denounced as opposed to the spirit of the Constitution; yet until the accession of President Cleveland in 1885 the total number vetoed was only 132 (including the so-called pocket vetoes) in ninety-six years.10 From 1892 to the end of Mr. Roosevelt’s second administration in 1909 there were 108 vetoes, making in all 541. In his first term Mr. Cleveland vetoed 301, the great majority being bills for granting pensions to persons who served in the Northern armies during the War of Secession. Though many of these bills had been passed with little or no opposition, two only were repassed over his veto. The only president who acted recklessly was AndrewEdition: current; Page: [53] Johnson. In the course of his three years’ struggle with Congress, he returned the chief bills passed for carrying out their Reconstruction policy, but as the majority opposed to him was large in both houses, these bills were promptly passed over his veto.

So far from exciting the displeasure of the people by resisting the will of their representatives, a president generally gains popularity by the bold use of his veto power. It conveys the impression of firmness; it shows that he has a view and does not fear to give effect to it. The nation, which has often good grounds for distrusting Congress, a body liable to be moved by sinister private influences, or to defer to the clamour of some noisy section outside, looks to the man of its choice to keep Congress in order, and has approved the extension which practice has given to the power. The president’s “qualified negative” was proposed by the Convention of 1787 for the sake of protecting the Constitution, and in particular, the executive, from congressional encroachments. It has now come to be used on grounds of general expediency, to defeat any measure which the executive deems pernicious either in principle or in its probable results.

The reasons why the veto provisions of the Constitution have succeeded appear to be two. One is that the president, being an elective and not a hereditary magistrate, is responsible to the people, and has the weight of the people behind him. The people regard him as an indispensable check, not only upon the haste and heedlessness of their representatives, the faults which the framers of the Constitution chiefly feared, but upon their tendency, a tendency whose mischievous force experience has revealed, to yield either to pressure from any section of their constituents, or to temptations of a private nature. The other reason is that a veto need never take effect unless there is a substantial minority exceeding one-third in one or other house of Congress, which agrees with the president. Such a minority shares his responsibility and encourages him to resist the threats of a majority, while if he has no substantial support in public opinion, his opposition is easily overborne. Hence this arrangement is preferable to a plan, such as that of the French Constitution of 179111 (under which the king’s veto could be overriden by passing a bill in three successive years), for enabling the executive simply to delay the passing of a measure which may be urgent, or which a vast majority of the legislature may desire. In its practical working the presidential veto power furnishes an interesting illustration ofEdition: current; Page: [54] the tendency of unwritten or flexible constitutions to depart from, of written or rigid constitutions to cleave to, the letter of the law. The strict legal theory of the rights of the head of the state is in this point exactly the same in England and in America. But whereas it is now the undoubted duty of an English king to assent to every bill passed by both houses of Parliament, however strongly he may personally disapprove its provisions,12 it is the no less undoubted duty of an American president to exercise his independent judgment on every bill, not sheltering himself under the representatives of the people, or foregoing his own opinion at their bidding.13

As the president is charged with the whole federal administration, and responsible for its due conduct, he must of course be allowed to choose his executive subordinates. But as he may abuse this tremendous power the Constitution associates the Senate with him, requiring the “advice and consent” of that body to the appointments he makes.14 This confirming power has become a political factor of the highest moment. The framers of the Constitution probably meant nothing more than that the Senate should check the president by rejecting nominees who were personally unfit for the post to which he proposed to appoint them. The Senate has always, except in its struggle with President Johnson, left the president free toEdition: current; Page: [55] choose his cabinet ministers. But it early assumed the right of rejecting a nominee to any other office on any ground which it pleased, as for instance, if it disapproved his political affiliations, or wished to spite the president. Presently the senators from the state wherein a federal office to which the president had made a nomination lay, being the persons chiefly interested in the appointment, and most entitled to be listened to by the rest of the Senate when considering it, claimed to have a paramount voice in deciding whether the nomination should be confirmed. Their colleagues approving, they then proceeded to put pressure on the president. They insisted that before making a nomination to an office in any state he should consult the senators from that state who belonged to his own party, and be guided by their wishes. Such an arrangement benefited all senators alike, because each obtained the right of practically dictating the appointments to those federal offices which he most cared for, viz., those within the limits of his own state; and each was therefore willing to support his colleagues in securing the same right for themselves as regarded their states respectively. Of course when a senator belonged to the party opposed to the president, he had no claim to interfere, because places are as a matter of course given to party adherents only. When both senators belonged to the president’s party they agreed among themselves as to the person whom they should require the president to nominate. By this system, which obtained the name of the “courtesy of the Senate”, the president was practically enslaved as regards appointments, because his refusal to be guided by the senator or senators within whose state the office lay exposed him to have his nomination rejected. The senators, on the other hand, obtained a mass of patronage by means of which they could reward their partisans, control the federal civil servants of their state, and build up a faction devoted to their interests.15 Successive presidents chafed under the yoke, and sometimes carried their nominees either by making a bargain or by fighting hard with the senators who sought to dictate to them. But it was generally more prudent to yield, for an offended senator could avenge a defeat by playing the president a shrewd trick in some other matter; and as the business of confirmation is transacted in secret session, intriguers have little fear of the public before their eyes. The senators might, moreover, argue that they knew best what would strengthen the party in their state, and that the men of their choiceEdition: current; Page: [56] were just as likely to be good as those whom some private friend suggested to the president. Thus the system throve and still thrives, though it received a blow from the conflict in 1881 between President Garfield and one of the New York senators, Mr. Roscoe Conkling. This gentleman, finding that Mr. Garfield would not nominate to a federal office in that state the person he proposed, resigned his seat in the Senate, inducing his co-senator Mr. Platt to do the same. Both then offered themselves for reelection by the state legislature of New York, expecting to obtain from it an approval of their action, and thereby to cow the president. The state legislature, however, in which a faction hostile to the two senators had become powerful, rejectd Mr. Conkling and Mr. Platt in favour of other candidates. So the victory remained with Mr. Garfield, while the nation, which had watched the contest eagerly, rubbed its hands in glee at the unexpected denouement.

It need hardly be added that the “courtesy of the Senate” would never have attained its present strength but for the growth, in and since the time of President Jackson, of the so-called Spoils System, whereby holders of federal offices have been turned out at the accession of a new president to make way for the aspirants whose services, past or future, he is expected to requite or secure by the gift of places.16

The right of the president to remove from office has given rise to long controversies on which I can only touch. In the Constitution there is not a word about removals; and very soon after it had come into force the question arose whether, as regards those offices for which the confirmation of the Senate is required, the president could remove without its consent. Hamilton had argued in the Federalist (though there is reason to believe that he afterwards changed his opinion) that the president could not so remove, because it was not to be supposed that the Constitution meant to give him so immense and dangerous a reach of power. Madison argued soon after the adoption of the Constitution that it did permit him so to remove, because the head of the executive must have subordinates whom he can trust, and may discover in those whom he has appointed defects fatal to their usefulness. This was also the view of John Marshall. When the question came to be settled in the Senate during the presidency of Washington, Congress, influenced perhaps by respect for his perfect uprightness, took the Madisonian view and recognized the power of removal as vested in the president alone. So matters stood till a conflict arose in 1866 between President Johnson and the Republican majority in both houses of Congress. In 1867, CongressEdition: current; Page: [57] fearing that the president would dismiss a great number of officials who sided with it against him, passed an act, known as the Tenure of Office Act, which made the consent of the Senate necessary to the removal of officeholders, even of the president’s (so-called) cabinet ministers, permitting him only to suspend them from office during the time when Congress was not sitting. The constitutionality of this act has been much doubted, and its policy is now generally condemned. It was a blow struck in the heat of passion. When President Grant became president in 1869, the act was greatly modified, and in 1887 it was repealed.

How dangerous it is to leave all offices tenable at the mere pleasure of a partisan executive using them for party purposes, has been shown by the fruits of the Spoils System. On the other hand a president ought to be free to choose his chief advisers and ministers, and even in the lower ranks of the civil service it is hard to secure efficiency if a specific cause, such as could be proved to a jury, must be assigned for dismissal.

The Constitution permits Congress to vest in the courts of law or in “the heads of departments” the right of appointing to “inferior offices.” This provision has been used to remove many posts from the nomination of the president, and by the Civil Service Reform Act of 1883 competitive examinations were instituted for about thirty-four thousand. Of the now enormous number of posts—there were, in 1909, 367,794 officers and employees of the executive civil service—nearly two-thirds were in that year subject to such examinations. A greater number, however, including many postmasterships and many places under the Treasury, remain in the gift of the president;17 while even as regards those which lie with his ministers, he may be invoked if disputes arise between the minister and politicians pressing the claims of their respective friends. The business of nominating is in ordinary times so engrossing as to leave the chief magistrate of the nation little time for his other functions.

Artemus Ward’s description of Abraham Lincoln swept along from room to room in the White House by a rising tide of office-seekers is hardly an exaggeration. From the 4th of March, when Mr. Garfield came into power, till he was shot in the July following, he was engaged almost incessantly in questions of patronage.18 Yet the president’s individual judgment has littleEdition: current; Page: [58] scope. He must reckon with the Senate; he must requite the supporters of the men to whom he owes his election: he must so distribute places all over the country as to keep the local wire-pullers in good humour, and generally strengthen the party by “doing something” for those who have worked or will work for it. Although the minor posts are practically left to the nomination of the senators or congressmen from the state or district, conflicting claims give infinite trouble, and the more lucrative offices are numerous enough to make the task of selection laborious as well as thankless and disagreeable. In every country statesmen find the dispensing of patronage the most disagreeable part of their work; and the more conscientious they are, the more does it worry them. No one has more to gain from a thorough scheme of civil service reform than the president. The present system throws work on him unworthy of a fine intellect, and for which a man of fine intellect may be ill qualified. On the other hand the president’s patronage is, in the hands of a skilful intriguer, an engine of far-spreading potency. By it he can oblige a vast number of persons, can bind their interests to his own, can fill important places with the men of his choice. Such authority as he has over the party in Congress, and therefore over the course of legislation, such influence as he exerts on his party in the several states, and therefore over the selection of candidates for Congress, is due to his patronage. Unhappily, the more his patronage is used for these purposes, the more it is apt to be diverted from the aim of providing the country with the best officials.

In quiet times the direct legal power of the president is not great, but his influence may be great if he combines tact with courage. He is hampered at every turn by the necessity of humouring his party. The trivial and mechanical parts of his work leave him too little leisure for framing large schemes of policy, while in carrying them out he needs the cooperation of Congress, which may be jealous, or indifferent, or hostile. His power to affect legislation largely depends on his personal capacity for leadership, and of course also on the strength of his party in Congress. In troublous times it is otherwise, for immense responsibility is then thrown on one who is both the commander in chief and the head of the civil executive. Abraham Lincoln wielded more authority than any single Englishman has done since Oliver Cromwell. It is true that the ordinary law was for some purposes practically suspended during the War of Secession. But it might again have to be similarly suspended, and the suspension makes the president a sort of dictator.

Setting aside these exceptional moments, the dignity and power of theEdition: current; Page: [59] presidential office, as distinguished from the personal influence which a particularly able or energetic president may exert, did not greatly grow between the time of Andrew Jackson, the last president who, not so much through his office as by his personal ascendency and the vehemence of his character, led and guided his party from the chair, and the death of President McKinley in 1901. Here, too, one sees how a rigid or supreme Constitution serves to keep things as they were. But for its iron hand, the office would surely, in a country where great events have been crowded on one another and opinion changes rapidly under the teaching of events, have either risen or fallen, have gained strength or lost it.

In no European country is there any personage to whom the president can be said to correspond. If we look at parliamentary countries like England, Italy, Belgium, he resembles neither the sovereign nor the prime minister, for the former is not a party chief at all, and the latter is palpably and confessedly nothing else. The president enjoys more authority, if less dignity, than a European king. He has powers for the moment narrower than a European prime minister, but these powers are more secure, for they do not depend on the pleasure of a parliamentary majority, but run on to the end of his term. One naturally compares him with the French president, but the latter has a prime minister and cabinet, dependent on the chamber, at once to relieve and to eclipse him: in America the president’s cabinet is a part of himself and has nothing to do with Congress. The president of the Swiss Confederation is merely the chairman for a year of the Administrative Federal Council (Bundesrath), and can hardly be called the executive chief of the nation.

The difficulty in forming a just estimate of the president’s power arises from the fact that it differs so much under ordinary and under extraordinary circumstances. This is a result which republics might seem specially concerned to prevent, and yet it is specially frequent under republics, as witness the cases of Rome and of the Italian cities in the Middle Ages. In ordinary times the president may be compared to the senior or managing clerk in a large business establishment, whose chief function is to select his subordinates, the policy of the concern being in the hands of the board of directors. But when foreign affairs become critical, or when disorders within the Union require his intervention—when, for instance, it rests with him to put down an insurrection or to decide which of two rival state governments he will recognize and support by arms—everything may depend on his judgment, his courage, and his hearty loyalty to the principles of the Constitution.

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It used to be thought that hereditary monarchs were strong because they reigned by a right of their own, not derived from the people. A president is strong for the exactly opposite reason, because his rights come straight from the people. We shall have frequent occasion to observe that nowhere is the rule of public opinion so complete as in America, or so direct; that is to say, so independent of the ordinary machinery of government. Now the president is deemed to represent the people no less than do the members of the legislature. Public opinion governs by and through him no less than them, and makes him powerful even against a popularly elected Congress. This is a fact to be remembered by those Europeans who seek in the strengthening of the hereditary principle a cure for the faults of government by assemblies. And it also suggests the risk that attaches to power vested in the hands of a leader directly chosen by the people. A high authority observes:19

“Our holiday orators delight with patriotic fervour to draw distinctions between our own and other countries, and to declare that here the law is master and the highest officer but the servant of the law, while even in free England the monarch is irresponsible and enjoys the most complete personal immunity. But such comparisons are misleading, and may prove mischievous. In how many directions is not the executive authority in America practically superior to what it is in England! And can we say that the President is really in any substantial sense any more the servant of the law than is the Queen? Perhaps if we were candid we should confess that the danger that the executive may be tempted to a disregard of the law may justly be believed greater in America than in countries where the chief magistrate comes to his office without the selection of the people; and where consequently their vigilance is quickened by a natural distrust.”

Although few presidents have shown any disposition to strain their authority, it has often been the fashion in America to be jealous of the president’s action, and to warn citizens against what is called “the one man power.” General Ulysses S. Grant was hardly the man to make himself a tyrant, yet the hostility to a third term of office which moved many people who had not been alienated by the faults of his administration, rested notEdition: current; Page: [61] merely on reverence for the example set by Washington, but also on the fear that a president repeatedly chosen would become dangerous to republican institutions. This particular alarm seems to a European groundless. I do not deny that a really great man might exert ampler authority from the presidential chair than its recent occupants have done. The same observation applies to the popedom and even to the English throne. The president has a position of immense dignity, an unrivalled platform from which to impress his ideas (if he has any) upon the people. But it is hard to imagine a president overthrowing the existing Constitution. He has no standing army, and he cannot create one. Congress can checkmate him by stopping supplies. There is no aristocracy to rally round him. Every state furnishes an independent centre of resistance. If he were to attempt a coup d’etat, it could only be by appealing to the people against Congress, and Congress could hardly, considering that it is reelected every two years, attempt to oppose the people. One must suppose a condition bordering on civil war, and the president putting the resources of the executive at the service of one of the intending belligerents, already strong and organized, in order to conceive a case in which he will be formidable to freedom. If there be any danger, it would seem to lie in another direction. The larger a community becomes the less does it seem to respect an assembly, the more is it attracted by an individual man. A bold president who knew himself to be supported by a majority in the country, might be tempted to override the law, and deprive the minority of the protection which the law affords it. He might be a tyrant, not against the masses, but with the masses. But nothing in the present state of American politics gives weight to such apprehensions.

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the national government Observations on the Presidency fpage="62" lpage="68"
chapter 7

Observations on the Presidency

Although the president has been, not that independent good citizen whom the framers of the Constitution contemplated, but, at least since 1829, a party man, seldom much above the average in character or abilities, the office has attained the main objects for which it was created. Such mistakes as have been made in foreign policy, or in the conduct of the administrative departments, have been rarely owing to the constitution of the office or to the errors of its holder. This is more than one who should review the history of Europe during the last hundred years could say of any European monarchy. Nevertheless, the faults chargeable on hereditary kingship, faults more serious than Englishmen, who have watched with admiration the wisdom of the Crown ever since the accession of Queen Victoria in 1837, usually realize, must not make us overlook certain defects incidental to the American presidency, perhaps to any plan of vesting the headship of the state in a person elected for a limited period.

In a country where there is no hereditary throne nor hereditary aristocracy, an office raised far above all other offices offers too great a stimulus to ambition. This glittering prize, always dangling before the eyes of prominent statesmen, has a power stronger than any dignity under a European crown to lure them (as it lured Clay and Webster) from the path of straightforward consistency. One who aims at the presidency—and all prominent politicians do aim at it—has the strongest possible motives to avoid making enemies. Now a great statesman ought to be prepared to make enemies. It is one thing to try to be popular—an unpopular man will be uninfluential—it is another to seek popularity by pleasing every section of your party. This is the temptation of presidential aspirants.

A second defect is that the presidential election, occurring once in four years, throws the country for several months into a state of turmoil, forEdition: current; Page: [63] which there may be no occasion. Perhaps there are no serious party issues to be decided, perhaps the best thing would be that the existing administration should pursue the even tenor of its way. The Constitution, however, requires an election to be held, so the whole costly and complicated machinery of agitation is put in motion; and if issues do not exist, they have to be created.1 Professional politicians who have a personal interest in the result, because it involves the gain or loss of office to themselves, conduct what is called a “campaign,” and the country is forced into a factitious excitement from midsummer, when each party selects the candidate whom it will nominate, to the first week of November, when the contest is decided. There is some political education in the process, but it is bought dearly, not to add that business, and especially finance, is disturbed, and much money spent unproductively.

Again, these regularly recurring elections produce a discontinuity of policy. Even when the new president belongs to the same party as his predecessor, he usually nominates a new cabinet, having to reward his especial supporters. Many of the inferior offices are changed; men who have learned their work make way for others who have everything to learn. If the new president belongs to the opposite party, the change of officials is far more sweeping, and involves larger changes of policy. The evil would be more serious were it not that in foreign policy, where the need for continuity is greatest, the United States have little to do, and that the cooperation of the Senate in this department qualifies the divergence of the ideas of one president from those of another.

Fourthly. The fact that he has been deemed reeligible once, but (practically) only once (at least in continuation of his existing term2), has operated unfavourably on the president. He is tempted to play for a renomination by pandering to sections of his own party, or using his patronage to conciliate influential politicians. On the other hand, if he is in his second term of office, he has no longer much motive to regard the interests of the nation at large, because he sees that his own political death is near. It may be answered that these two evils will correct one another, that the president will in his first term be anxious to win the respect of the nation, in hisEdition: current; Page: [64] second he will have no motive for yielding to the pressure of party wire-pullers; while in reply to the suggestion that if he were held ineligible for the next term, but eligible for any future term, both sets of evils might be avoided, and both sets of benefits secured, it can be argued that such a provision would make that breach in policy which may now happen only once in eight years, necessarily happen once in four years. It would, for instance, have prevented the reelection of Abraham Lincoln in 1864.

The founders of the Southern Confederacy of 1861–65 were so much impressed by the objections to the present system that they provided that their president should hold office for six years, but not be reeligible. It has recently been suggested that the Constitution might be amended in this sense.

Fifthly. An outgoing president is a weak president. During the four months of his stay in office after his successor has been chosen, he declines, except in cases of extreme necessity, to take any new departure, to embark on any executive policy which cannot be completed before he quits office. This is, of course, even more decidedly the case if his successor belongs to the opposite party.3

Lastly. The result of an election may be doubtful, not from equality of votes, for this is provided against, but from a dispute as to the validity of votes given in or reported from the states. The difficulty which arose in 1876 cannot, owing to the legislation of 1887, recur in quite the same form. But cases may arise in which the returns from a state of its electoral votes will, because notoriously obtained by fraud or force, fail to be recognized as valid by the party whose candidate they prejudice. Few presidential elections have passed without charges of this kind, and these charges are not always unfounded. Should manifest unfairness coincide with popular excitement over a really important issue, the self-control of the people, which in 1877, when no such issue was involved, held in check the party passions of their leaders, might prove unequal to the strain of such a crisis.

Further observations on the president, as a part of the machinery ofEdition: current; Page: [65] government, will be better reserved for the discussion of the relations of the executive and legislative departments. I will therefore only observe here that, even when we allow for the defects last enumerated, the presidential office, if not one of the conspicuous successes of the American Constitution, is nowise to be deemed a failure. The problem of constructing a stable executive in a democratic country is so immensely difficult that anything short of a failure deserves to be called a success. Now the president has, for more than a century, carried on the internal administrative business of the nation with due efficiency. As he has the ear of the country, he can force upon its attention questions which Congress may be neglecting, and if he be a man of constructive ideas and definite aims, he may guide and inspire its political thought. Once or twice, as when Jefferson purchased Louisiana, and Lincoln emancipated the slaves in the revolted states, he has courageously ventured on stretches of authority, held at the time to be doubtfully constitutional, yet necessary, and approved by the judgment of posterity. He has kept the machinery working quietly and steadily when Congress has been distracted by party strife, or paralyzed by the dissensions of the two houses, or enfeebled by the want of first-rate leaders. The executive has been able, at moments of peril, to rise into a dictatorship, as during the War of Secession, and when peace returned, to sink back into its proper constitutional position. It has shown no tendency so far to rise above and override other authorities as to pave the way for a monarchy.

Europeans are struck by the faults of a plan which plunges the nation into a whirlpool of excitement once every four years, and commits the headship of the state to a party leader chosen for a short period.4 But there is another aspect in which the presidential election may be regarded, and one whose importance is better appreciated in America than in Europe. The election is a solemn periodical appeal to the nation to review its condition, the way in which its business has been carried on, the conduct of the two great parties. It stirs and rouses the nation as nothing else does, forces everyone not merely to think about public affairs but to decide how he judges the parties. It is a direct expression of the will of twelve millions of voters, a force before which everything must bow. It refreshes the sense of national duty; and at great crises it intensifies national patriotism. A presidential election is sometimes, as in 1800, and as again most notably in 1860 and 1864, aEdition: current; Page: [66] turning-point in history. In form it is nothing more than the choice of an administrator who cannot influence policy otherwise than by refusing his assent to bills. In reality it is the deliverance of the mind of the people upon all such questions as they feel able to decide. A curious parallel may in this respect be drawn between it and a general election of the House of Commons in England. A general election is in form a choice of representatives, with reference primarily to their views upon various current questions. In substance it may be a national vote, committing executive power to some one prominent statesman. Thus the elections of 1868, 1874, 1880, were practically votes of the nation to place Mr. Gladstone or Mr. Disraeli at the head of the government. So conversely in America, a presidential election, which purports to be merely the selection of a man, is often in reality a decision upon issues of policy, a condemnation of the course taken by one party, a mandate to the other to follow some different course.

The choice of party leaders as presidents has in America caused far less mischief than might have been expected. Nevertheless, those who have studied the scheme of constitutional monarchy as it works in England, or Belgium, or Italy, or the reproductions of that scheme in British colonies, where the Crown-appointed governor stands outside the strife of factions as a permanent official, will, when they compare the institutions of these countries with the American presidency, be impressed by the merits of a plan which does not unite all the dignity of office with all the power of office, and which, by placing the titular chief of the executive above and apart from party, makes the execution of the law appear to proceed from a nonpartisan source, and tells the civil and military services that they are the servants rather of the nation than of any section of the nation, suggesting to them that their labours ought to be rendered with equal heartiness to whatever party may hold the reins of government. Party government may be necessary. So far as we can see, it is necessary. But it is an unfortunate necessity; and whatever tends to diminish its mischievous influence upon the machinery of administration, and to prevent it from obtruding itself upon foreign states; whatever holds up a high ideal of devotion to the nation as a majestic whole, living on from century to century while parties form and dissolve and form again, strengthens and ennobles the commonwealth and all its citizens.

Such an observation of course applies only to monarchy as a political institution. Socially regarded, the American presidency deserves nothing but admiration. The president is simply the first citizen of a free nation, depending for his dignity on no title, no official dress, no insignia ofEdition: current; Page: [67] state. It was originally proposed, doubtless in recollection of the English Commonwealth of the seventeenth century, to give him the style of “Highness,” and “Protector of the Liberties of the United States.” Others suggested “Excellency”;5 and Washington is said to have had leanings to the Dutch style of “High Mightiness.” The head of the ruling president does not appear on coins, nor even on postage stamps.6 His residence at Washington, formerly called officially “the Executive Mansion,” but now “the White House,” a handsome building with two low wings and a portico supported by Corinthian pillars, said to have been modelled upon the Duke of Leinster’s house at Carton in Kildare, stands in a shrubbery, and has the air of a large suburban villa rather than of a palace. The rooms, though spacious, are not spacious enough for the crowds that attend the public receptions. The president’s salary, which is only $75,000 (£15,000) a year, does not permit display, nor indeed is display expected from him.

Washington, which even so lately as the days of the war, was a wilderness of mud and Negroes, with a few big houses scattered here and there, has now become one of the handsomest capitals in the world, and cultivates the graces and pleasures of life with eminent success. Besides its political society and its diplomatic society, it has grown to be a winter resort for men of wealth and leisure from all over the continent. It is a place where a court might be created, did anyone wish to create it. No president has made the attempt; and as the earlier career of the chief magistrate and his wife has seldom qualified them to lead the world of fashion, none is likely to make it. However, the action of the wife of President Hayes, an estimable lady, whose ardent advocacy of temperance caused the formation of many total abstinence societies, called by her name, showed that there may be fields in which a president’s consort can turn her exalted position to good account, while of course such gifts or charms as she possesses will tend to increase his popularity.

To a European observer, weary of the slavish obsequiousness and lip-deep adulation with which the members of reigning families are treated on the eastern side of the Atlantic, fawned on in public and carped at in private, the social relations of an American president to his people are eminentlyEdition: current; Page: [68] refreshing. There is a great respect for the office, and a corresponding respect for the man as the holder of the office, if he has done nothing to degrade it. There is no servility, no fictitious self-abasement on the part of the citizens, but a simple and hearty deference to one who represents the majesty of the nation, the sort of respect which the proudest Roman paid to the consulship, even if the particular consul was, like Cicero, a “new man.” The curiosity of the visitors who throng the White House on reception days is sometimes too familiar; but this fault tends to disappear, and presidents have now more reason to complain of the persecutions they endure from an incessantly observant journalism. After oscillating between the ceremonious state of George Washington, who drove to open Congress in his coach and six, with outriders and footmen in livery, and the ostentatious plainness of Citizen Jefferson, who would ride up alone and hitch his horse to the post at the gate,7 the president has settled down into an attitude between that of the mayor of a great English town on a public occasion, and that of a European cabinet minister on a political tour. He is followed about and feted, and in every way treated as the first man in the company; but the spirit of equality which rules the country has sunk too deep into every American nature for him to expect to be addressed with bated breath and whispering reverence. He has no military guard, no chamberlains or grooms-in-waiting; his everyday life is simple; his wife enjoys precedence over all other ladies, but is visited and received just like other ladies; he is surrounded by no such pomp and enforces no such etiquette as that which belongs to the governors even of second-class English colonies, not to speak of the viceroys of India and Ireland.

It begins to be remarked in Europe that monarchy, which used to be deemed politically dangerous but socially useful, has now, since its claws have been cut, become politically valuable, but of more doubtful social utility. In the United States the most suspicious democrat—and there are democrats who complain that the office of president is too monarchical—cannot accuse the chief magistracy of having tended to form a court, much less to create those evils which thrive in the atmosphere of European courts. No president dare violate social decorum as European sovereigns have so often done. If he did, he would be the first to suffer.

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chapter 8

Why Great Men Are Not Chosen Presidents

Europeans often ask, and Americans do not always explain, how it happens that this great office, the greatest in the world, unless we except the papacy, to which anyone can rise by his own merits, is not more frequently filled by great and striking men. In America, which is beyond all other countries the country of a “career open to talents,” a country, moreover, in which political life is unusually keen and political ambition widely diffused, it might be expected that the highest place would always be won by a man of brilliant gifts. But from the time when the heroes of the Revolution died out with Jefferson and Adams and Madison, no person except General Grant, had, down till the end of last century, reached the chair whose name would have been remembered had he not been president, and no president except Abraham Lincoln had displayed rare or striking qualities in the chair. Who now knows or cares to know anything about the personality of James K. Polk or Franklin Pierce? The only thing remarkable about them is that being so commonplace they should have climbed so high.

Several reasons may be suggested for the fact, which Americans are themselves the first to admit.

One is that the proportion of first-rate ability drawn into politics is smaller in America than in most European countries. This is a phenomenon whose causes must be elucidated later: in the meantime it is enough to say that in France, where the half-revolutionary conditions that lasted for some time after 1870, made public life exciting and accessible; in Germany, where an admirably organized civil service cultivates and develops statecraft with unusual success; in England, where many persons of wealth and leisure seek to enter the political arena, while burning questions touch the interestsEdition: current; Page: [70] of all classes and make men eager observers of the combatants, the total quantity of talent devoted to parliamentary or administrative work has been larger, relatively to the population, than in America, where much of the best ability, both for thought and for action, for planning and for executing, rushes into a field which is comparatively narrow in Europe, the business of developing the material resources of the country.

Another is that the methods and habits of Congress, and indeed of political life generally, seem to give fewer opportunities for personal distinction, fewer modes in which a man may commend himself to his countrymen by eminent capacity in thought, in speech, or in administration, than is the case in the free countries of Europe. This is a point to be explained in later chapters. I merely note here in passing what will there be dwelt on.

A third reason is that eminent men make more enemies, and give those enemies more assailable points, than obscure men do. They are therefore in so far less desirable candidates. It is true that the eminent man has also made more friends, that his name is more widely known, and may be greeted with louder cheers. Other things being equal, the famous man is preferable. But other things never are equal. The famous man has probably attacked some leaders in his own party, has supplanted others, has expressed his dislike to the crotchet of some active section, has perhaps committed errors which are capable of being magnified into offences. No man stands long before the public and bears a part in great affairs without giving openings to censorious criticism. Fiercer far than the light which beats upon a throne is the light which beats upon a presidential candidate, searching out all the recesses of his past life. Hence, when the choice lies between a brilliant man and a safe man, the safe man is preferred. Party feeling, strong enough to carry in on its back a man without conspicuous positive merits, is not always strong enough to procure forgiveness for a man with positive faults.

A European finds that this phenomenon needs in its turn to be explained, for in the free countries of Europe brilliancy, be it eloquence in speech, or some striking achievement in war or administration, or the power through whatever means of somehow impressing the popular imagination, is what makes a leader triumphant. Why should it be otherwise in America? Because in America party loyalty and party organization have been hitherto so perfect that anyone put forward by the party will get the full party vote if his character is good and his “record,” as they call it, unstained. The safe candidate may not draw in quite so many votes from the moderate men of the other side as the brilliant one would, but he will not lose nearly so manyEdition: current; Page: [71] from his own ranks. Even those who admit his mediocrity will vote straight when the moment for voting comes. Besides, the ordinary American voter does not object to mediocrity. He has a lower conception of the qualities requisite to make a statesman than those who direct public opinion in Europe have. He likes his candidate to be sensible, vigorous, and, above all, what he calls “magnetic,” and does not value, because he sees no need for, originality or profundity, a fine culture or a wide knowledge. Candidates are selected to be run for nomination by knots of persons who, however expert as party tacticians, are usually commonplace men; and the choice between those selected for nomination is made by a very large body, an assembly of nearly a thousand delegates from the local party organizations over the country, who are certainly no better than ordinary citizens. How this process works will be seen more fully when I come to speak of those nominating conventions which are so notable a feature in American politics.

It must also be remembered that the merits of a president are one thing and those of a candidate another thing. An eminent American is reported to have said to friends who wished to put him forward, “Gentlemen, let there be no mistake. I should make a good president, but a very bad candidate.” Now to a party it is more important that its nominee should be a good candidate than that he should turn out a good president. A nearer danger is a greater danger. As Saladin says in The Talisman, “A wild cat in a chamber is more dangerous than a lion in a distant desert.” It will be a misfortune to the party, as well as to the country, if the candidate elected should prove a bad president. But it is a greater misfortune to the party that it should be beaten in the impending election, for the evil of losing national patronage will have come four years sooner. “B” (so reason the leaders), “who is one of our possible candidates, may be an abler man than A, who is the other. But we have a better chance of winning with A than with B, while X, the candidate of our opponents, is anyhow no better than A. We must therefore run A.” This reasoning is all the more forcible because the previous career of the possible candidates has generally made it easier to say who will succeed as a candidate than who will succeed as a president; and because the wire-pullers with whom the choice rests are better judges of the former question than of the latter.

After all, too, a president need not be a man of brilliant intellectual gifts. His main duties are to be prompt and firm in securing the due execution of the laws and maintaining the public peace, careful and upright in the choice of the executive officials of the country. Eloquence, whose value is apt to be overrated in all free countries, imagination, profundity of thought orEdition: current; Page: [72] extent of knowledge, are all in so far a gain to him that they make him “a bigger man,” and help him to gain a greater influence over the nation, an influence which, if he be a true patriot, he may use for its good. But they are not necessary for the due discharge in ordinary times of the duties of his post. Four-fifths of his work is the same in kind as that which devolves on the chairman of a commercial company or the manager of a railway, the work of choosing good subordinates, seeing that they attend to their business, and taking a sound practical view of such administrative questions as require his decision. Firmness, common sense, and most of all, honesty, an honesty above all suspicion of personal interest, are the qualities which the country chiefly needs in its chief magistrate.

So far we have been considering personal merits. But in the selection of a candidate many considerations have to be regarded besides personal merits, whether of a candidate, or of a possible president. The chief of these considerations is the amount of support which can be secured from different states or from different “sections” of the Union, a term by which the Americans denote groups of states with a broad community of interest. State feeling and sectional feeling are powerful factors in a presidential election. The Middle West and Northwest, including the states from Ohio to Montana, is now the most populous section of the Union, and therefore counts for most in an election. It naturally conceives that its interests will be best protected by one who knows them from birth and residence. Hence prima facie a man from that section makes the best candidate. A large state casts a heavier vote in the election; and every state is of course more likely to be carried by one of its own children than by a stranger, because his fellow citizens, while they feel honoured by the choice, gain also a substantial advantage, having a better prospect of such favours as the administration can bestow. Hence, cœteris paribus, a man from a large state is preferable as a candidate. The problem is further complicated by the fact that some states are already safe for one or other party, while others are doubtful. The Northwestern and New England states have usually tended to go Republican; while nearly all of the Southern states have, since 1877, been pretty certain to go Democratic. Cœteris paribus, a candidate from a doubtful state, such as New York or Indiana have usually been, is to be preferred.

Other minor disqualifying circumstances require less explanation. A Roman Catholic, or an avowed disbeliever in Christianity, would be an undesirable candidate. For many years after the Civil War, anyone who had fought, especially if he fought with distinction, in the Northern army, enjoyed great advantages, for the soldiers of that army rallied to his name.Edition: current; Page: [73] The two elections of General Grant, who knew nothing of politics, and the fact that his influence survived the faults of his long administration, are evidence of the weight of this consideration.

Long ago on a railway journey in the Far West I fell in with two newspapermen from the state of Indiana, who were taking their holiday. The conversation turned on the next presidential election. They spoke hopefully of the chances for nomination by their party of an Indiana man, a comparatively obscure person, whose name I had never heard. I expressed some surprise that he should be thought of. They observed that he had done well in state politics, that there was nothing against him, that Indiana would work for him. “But,” I rejoined, “ought you not to have a man of more commanding character? There is Senator A. Everybody tells me that he is the shrewdest and most experienced man in your party, and that he has a perfectly clean record. Why not run him?” “Why, yes,” they answered, “that is all true. But you see he comes from a small state, and we have got that state already. Besides, he wasn’t in the war. Our man was. Indiana’s vote is worth having, and if our man is run, we can carry Indiana.”

“Surely the race is not to the swift, nor the battle to the strong, neither yet bread to the wise, nor yet riches to men of understanding, nor yet favour to men of skill, but time and chance happeneth to them all.”

These secondary considerations do not always prevail. Intellectual ability and strength of character must influence the choice of a candidate. When a man has once impressed himself on the nation by force, courage, and rectitude, the influence of those qualities may be decisive. They naturally count for more when times are critical. Reformers declare that their weight will go on increasing as the disgust of good citizens with the methods of professional politicians increases. But for many generations past it is not the greatest men in the Roman Church that have been chosen popes, nor the most brilliant men in the Anglican Church that have been appointed archbishops of Canterbury.

Although several presidents have survived their departure from office by many years, only two, John Quincy Adams and recently Mr. Roosevelt, have played a part in politics after quitting the White House.1 It may be that the ex-president has not been a great leader before his accession to office; it may be that he does not care to exert himself after he has held and dropped the great prize, and found (as most have found) how little of aEdition: current; Page: [74] prize it is. Something, however, must also be ascribed to other features of the political system of the country. It is often hard to find a vacancy in the representation of a given state through which to reenter Congress; it is disagreeable to recur to the arts by which seats are secured. Past greatness is rather an encumbrance than a help to resuming a political career. Exalted power, on which the unsleeping eye of hostile critics was fixed, has probably disclosed all a president’s weaknesses, and has either forced him to make enemies by disobliging adherents, or exposed him to censure for subservience to party interests. He is regarded as having had his day; he belongs already to the past, and unless, like Grant, he is endeared to the people by the memory of some splendid service, or is available to his party as a possible candidate for a further term of office, he may sink into the crowd or avoid neglect by retirement. Possibly he may deserve to be forgotten; but more frequently he is a man of sufficient ability and character to make the experience he has gained valuable to the country, could it be retained in a place where he might turn it to account. They managed things better at Rome, gathering into their Senate all the fame and experience, all the wisdom and skill, of those who had ruled and fought as consuls and prætors at home and abroad.

We may now answer the question from which we started. Great men have not often been chosen presidents, first because great men are rare in politics; secondly, because the method of choice does not bring them to the top; thirdly, because they are not, in quiet times, absolutely needed. Let us close by observing that the presidents, regarded historically, fall into three periods, the second inferior to the first, the third rather better than the second.

Down till the election of Andrew Jackson in 1828, all the presidents had been statesmen in the European sense of the word, men of education, of administrative experience, of a certain largeness of view and dignity of character. All except the first two had served in the great office of secretary of state; all were known to the nation from the part they had played. In the second period, from Jackson till the outbreak of the Civil War in 1861, the presidents were either mere politicians, such as Van Buren, Polk, or Buchanan, or else successful soldiers,2 such as Harrison or Taylor, whom their party found useful as figureheads. They were intellectual pygmies beside the real leaders of that generation—Clay, Calhoun, and Webster. AEdition: current; Page: [75] new series begins with Lincoln in 1861. He and General Grant, his successor, who cover sixteen years between them, belong to the history of the world. The other less distinguished presidents of this period contrast favourably with the Polks and Pierces of the days before the war, if they are not, like the early presidents, the first men of the country. If we compare the twenty presidents who were elected to office between 1789 and 1900 with the twenty English prime ministers of the same period, there are but six of the latter, and at least eight of the former whom history calls personally insignificant, while only Washington, Jefferson, Lincoln, and Grant can claim to belong to a front rank represented in the English list by seven or possibly eight names.3 It would seem that the natural selection of the English parliamentary system, even as modified by the aristocratic habits of that country, had more tendency to bring the highest gifts to the highest place than the more artificial selection of America.

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chapter 9

The Cabinet

There is in the government of the United States no such thing as a cabinet in the English sense of the term. But I use the term, not only because it is current in America to describe the chief ministers of the president, but also because it calls attention to the remarkable difference which exists between the great officers of state in America and the similar officers in the free countries of Europe.

Almost the only reference in the Constitution to the ministers of the president is that contained in the power given him to “require the opinion in writing of the principal officer in each of the executive departments upon any subject relating to the duties of their respective offices.” All these departments have been created by acts of Congress. Washington began in 1789 with four only, at the head of whom were the following four officials:

  • secretary of state
  • secretary of the treasury
  • secretary of war
  • attorney general

In 1798 there was added a secretary of the navy, in 1829 a postmaster general,1 in 1849 a secretary of the interior, in 1888 a secretary of agriculture, in 1903 a secretary of commerce and labour, and in 1913 a secretary of labour.

These ten now make up what is called the cabinet.2 Each receives a salaryEdition: current; Page: [77] of $12000 (£2400). All are appointed by the president, subject to the consent of the Senate (which is practically never refused), and may be removed by the president alone. Nothing marks them off from any other officials who might be placed in charge of a department, except that they are summoned by the president to his private council.

None of them can vote in Congress, art. XI, § 6 of the Constitution providing that “no person holding any office under the United States shall be a member of either House during his continuance in office.”

This restriction was intended to prevent the president not merely from winning over individual members of Congress by the allurements of office, but also from making his ministers agents in corrupting or unduly influencing the representatives of the people, as George III and his ministers corrupted the English Parliament. There is a passage in the Federalist (Letter 40) which speaks of “Great Britain, where so great a proportion of the members are elected by so small a proportion of the people, where the electors are so corrupted by the representatives, and the representatives so corrupted by the Crown.” The Fathers of the Constitution were so resolved to avert this latter form of corruption that they included in the Constitution the provision just mentioned. Its wisdom has sometimes been questioned. But it deserves to be noticed that the Constitution contains nothing to prevent ministers from being present in either house of Congress and addressing it,3 as the ministers of the king of Italy or of the French president may do in either chamber of Italy or France.4 It is absolutely silent on the subject of communications between officials (other than the president) and the representatives of the people.

The president has the amplest range of choice for his ministers. He usually forms an entirely new cabinet when he enters office, even if he belongs to the same party as his predecessor. He can and sometimes does take menEdition: current; Page: [78] who not only have never sat in Congress, but have not figured in politics at all, who may never have sat in a state legislature nor held the humblest office.5 Generally, of course, the persons chosen have already made for themselves a position of at least local importance. Often they are those to whom the new president owes his election, or to whose influence with the party he looks for support in his policy. Sometimes they have been his most prominent competitors for the party nominations. Thus Mr. Lincoln in 1860 appointed Mr. Seward and Mr. Chase to be his secretary of state and secretary of the treasury respectively, they being the two men who had come next after him in the selection by the Republican party of a presidential candidate.

The most dignified place in the cabinet is that of the secretary of state. It is the great prize often bestowed on the man to whom the president is chiefly indebted for his election, or at any rate on one of the leaders of the party. In early days, it was regarded as the stepping-stone to the presidency. Jefferson, Madison, Monroe, J. Q. Adams, and Van Buren, had all served as secretaries to preceding presidents. The conduct of foreign affairs is the chief duty of the State Department: its head has therefore a larger stage to play on than any other minister, and more chances of fame. His personal importance is all the greater because the president is usually so much absorbed by questions of patronage as to be forced to leave the secretary to his own devices. Hence the foreign policy of the administration is practically that of the secretary, except so far as the latter is controlled by the Senate. The State Department has also the charge of the great seal of the United States, keeps the archives, publishes the statutes, and of course instructs and controls the diplomatic and consular services. It is often said of the president that he is ruled, or as the Americans express it, “run,” by his secretary; but this happens only when the secretary is the stronger man, and in the same way it has been said of presidents before now that they were, like sultans, ruled by their wives, or by their boon companions.

The secretary of the treasury is minister of finance. His function was of the utmost importance at the beginning of the government, when a national system of finance had to be built up and the federal government rescued from its grave embarrassments. Hamilton, who then held the office, effected both; and the work of Gallatin, who served under Jefferson, was scarcelyEdition: current; Page: [79] less important. During the War of Secession, it became again powerful, owing to the enormous loans contracted and the quantities of paper money issued, and it remains so now, because it has the management (so far as Congress permits) of the currency and the national debt. The secretary has, however, by no means the same range of action as a finance minister in European countries, for as he is excluded from Congress, although he regularly reports to it, he has nothing directly to do with the imposition of taxes, and very little with the appropriation of revenue to the various burdens of the state.6

The secretary of the interior is far from being the omnipresent power which a minister of the interior is in France or Italy, or even a home secretary in England, since nearly all the functions which these officials discharge belong in America to the state governments or to the organs of local government. He is chiefly occupied in the management of the public lands, still of immense value, despite the lavish grants made to railway companies, and with the conduct of Indian affairs, a troublesome and unsatisfactory department, which was long a reproach to the United States, and may from time to time become so, till the Indians themselves disappear or have been civilized. Patents and pensions, the latter a source of great expense and abuse, also belong to his province, as do the meteorological office, the geological survey, and the reclamation office.

The duties of the secretaries of war, of the navy, of agriculture, of commerce, of labour, and of the postmaster general may be gathered from their names. But the attorney general is sufficiently different from his English prototype to need a word of explanation. He is not only public prosecutor and standing counsel for the United States, but also to some extent what is called on the European continent a minister of justice. He has a general oversight—it can hardly be described as a control—of the federal judicial departments, and especially of the prosecuting officers called district attorneys, and executive court officers, called United States marshals. He is the legal adviser of the president in those delicate questions, necessarily frequent under the Constitution of the United States, which arise as to the limits of the executive power and the relations of federal to state authority, and generally in all legal matters. His opinions are frequently published officially, as a justification of the president’s conduct, and an indication ofEdition: current; Page: [80] the view which the executive takes of its legal position and duties in a pending matter.7 Some of them have indeed a quasi-judicial authority, for when a department requests his opinion on a question of law, as for instance, regarding the interpretation of a statute, that opinion is deemed authoritative for the officials, although, of course, a judgment of a federal court would upset it. His power to institute or abstain from instituting prosecutions under federal acts is also a function of much moment. The attorney general is always a lawyer of eminence, though not necessarily in the front rank of the profession, for political considerations have much to do with determining the president’s choice.8

The creation of the departments of commerce and of labour was an evidence of that extension of the functions of government into new fields which is no less remarkable in the United States than it is in Europe. Among the duties of the former are the supervision of corporations (other than railroads) doing interstate business, lighthouses, the coast and geodetic survey, merchant shipping, the census, and trade statistics. The latter has within its sphere the administration of the immigration laws.

It will be observed that from this list of ministerial offices several are wanting which exist in Europe. Thus there is no minister of education, because that department of business belongs to the several states;9 no minister of public worship, because the United States government has nothing to do with any particular form of religion; no minister of public works, because grants made for this purpose come direct from Congress without the intervention of the executive, and are applied as Congress directs.10 Neither was there, till the Philippine Isles and Puerto Rico were acquired, any colonial office. Since that date (1899) a Bureau of Insular Affairs has been established and placed under the War Department, to take charge of these dependencies. Much of the work which in Europe would devolve on members of the administration falls in America to committees of Congress,Edition: current; Page: [81] especially to committees of the House of Representatives. This happens particularly as regards taxation, public works, and the management of the Territories, for each of which matters there exists a committee in both houses. Some controversy has arisen in Washington regarding the respective precedence of cabinet ministers and of senators. The point is naturally of more importance as regards the wives of the claimants than as regards the claimants themselves.

The respective positions of the president and his ministers are, as has been already explained, the reverse of those which exist in the constitutional monarchies of Europe. There the sovereign is irresponsible and the minister responsible for the acts which he does in the sovereign’s name. In America the president is responsible because the minister is nothing more than his servant, bound to obey him, and independent of Congress. The minister’s acts are therefore legally the acts of the president. Nevertheless the minister is also responsible and liable to impeachment for offences committed in the discharge of his duties. The question whether he is, as in England, impeachable for giving bad advice to the head of the state has never arisen, but upon the general theory of the Constitution it would rather seem that he is not, unless of course his bad counsel should amount to a conspiracy with the president to commit an impeachable offence. In France the responsibility of the president’s ministers does not in theory exclude the responsibility of the president himself, although practically it makes a great difference, because he, like the English Crown, acts through ministers supported by a majority in the Chamber.

So much for the ministers taken separately. It remains to consider how an American administration works as a whole, this being in Europe the most peculiar and significant feature of the parliamentary or so-called “cabinet” system.

In America the administration does not work as a whole. It is not a whole. It is a group of persons, each individually dependent on and answerable to the president, but with no joint policy, no collective responsibility.11

When the Constitution was established, and George Washington chosen first president under it, it was intended that the president should be outside and above party, and the method of choosing him by electors was contrivedEdition: current; Page: [82] with this very view. Washington belonged to no party, nor indeed, though diverging tendencies were already manifest, had parties yet begun to exist. There was therefore no reason why he should not select his ministers from all sections of opinion. As he was responsible to the nation and not to a majority in Congress, he was not bound to choose persons who agreed with the majority in Congress. As he, and not the ministry, was responsible for executive acts done, he had to consider, not the opinions or affiliations of his servants, but their capacity and integrity only. Washington chose as secretary of state Thomas Jefferson, already famous as the chief draftsman of the Declaration of Independence, and as attorney general another Virginian, Edmund Randolph, both men of extreme democratic leanings, disposed to restrict the action of the federal government within narrow limits. For secretary of the treasury he selected Alexander Hamilton of New York, and for secretary of war Henry Knox of Massachusetts. Hamilton was by far the ablest man among those who soon came to form the Federalist party, the party which called for a strong executive, and desired to subordinate the states to the central authority. He soon became recognized as its leader. Knox was of the same way of thinking. Dissensions presently arose between Jefferson and Hamilton, ending in open hostility, but Washington retained them both as ministers till Jefferson retired in 1794 and Hamilton in 1795. The second president, John Adams, kept on the ministers of his predecessor, being in accord with their opinions, for they and he belonged to the now full-grown Federalist party. But before he quitted office he had quarrelled with most of them, having taken important steps without their knowledge and against their wishes. Jefferson, the third president, was a thorough-going party leader, who naturally chose his ministers from his own political adherents. As all subsequent presidents have been seated by one or other party, all have felt bound to appoint a party cabinet though not necessarily one of strong party men. Their party expects it; and they prefer to be advised by people of their own way of thinking.

So far, an American cabinet resembles a British one. It is composed of members of one party, if not of prominent party leaders. But now mark the differences. The parliamentary system of England and of those countries which like Belgium, Italy, and the self-governing British colonies, have more or less modelled themselves upon England, rests on four principles.

The head of the executive is irresponsible. Responsibility attaches to the cabinet, i.e., to the body of ministers who advise him, so that if he errs, it is through their fault; they suffer and he escapes. The ministers cannot allege, as a defence for any act of theirs, the command of the Crown. IfEdition: current; Page: [83] the Crown gives them an order of which they disapprove, they ought to resign.

The ministers sit in the legislature, practically forming in England, as has been observed by Bagehot, the most acute of English constitutional writers, a committee of the legislature, chosen by the majority for the time being.

The ministers are accountable to the legislature, and must resign office12 as soon as they lose its confidence.

The ministers are jointly as well as severally liable for their acts: i.e., the blame of an act done by any of them falls on the whole cabinet, unless one of them chooses to take it entirely on himself and retire from office. Their responsibility is collective.

None of these principles holds true in America. The president is personally responsible for his acts, not indeed to Congress, but to the people, by whom he is chosen. No means exist of enforcing this responsibility, except by impeachment, but as his power lasts for four years only, and is much restricted, this is no serious evil. He cannot avoid responsibility by alleging the advice of his ministers, for he is not bound to follow it, and they are bound to obey him or retire. The ministers do not sit in Congress. They are not accountable to it, but to the president, their master. It may request their attendance before a committee, as it may require the attendance of any other witness, but they have no opportunity of expounding and justifying to Congress as a whole their own, or rather their master’s, policy. Hence an adverse vote of Congress does not affect their or his position. If they propose to take a step which requires money, and Congress refuses the requisite appropriation, the step cannot be taken. But a dozen votes of censure will neither compel them to resign nor oblige the president to pause in any line of conduct which is within his constitutional rights. This, however strange it may seem to a European, is a necessary consequence of the fact that the president, and by consequence his cabinet, do not derive their authority from Congress. Suppose (as befell in 1878–79) a Republican president, with a Democratic majority in both houses of Congress. The president, unless of course he is convinced that the nation has changed its mind since it elected him, is morally bound to follow out the policy which he professed as a candidate, and which the majority of the nation must be held in electing him to have approved. That policy is, however, opposed to the views of the present majority of Congress. They are right to check him as far as theyEdition: current; Page: [84] can. He is right to follow out his own views and principles in spite of them so far as the Constitution and the funds at his disposal permit. A deadlock may follow. But deadlocks may happen under any system, except that of an omnipotent sovereign, be he a man or an assembly, the risk of deadlocks being indeed the price which a nation pays for the safeguard of constitutional checks.

In this state of things one cannot properly talk of the cabinet apart from the president. An American administration resembles not so much the cabinets of England and France as the group of ministers who surround the czar or the sultan, or who executed the bidding of a Roman emperor like Constantine or Justinian. Such ministers are severally responsible to their master, and are severally called in to counsel him, but they have not necessarily any relations with one another, nor any duty of collective action. So while the president commits each department to the minister whom the law provides, and may if he chooses leave it altogether to that minister, the executive acts done are his own acts, by which the country will judge him; and still more is his policy as a whole his own policy, and not the policy of his ministers taken together.13 The ministers meet in council (often twice every week while Congress is sitting), but may not have much to settle when they meet, since they have no parliamentary tactics to contrive, few bills to prepare, few problems of foreign policy to discuss. They are not a government, as Europeans understand the term; they are a group of heads of departments, whom the chief, though he usually consults them separately, often finds it useful to bring together in one room for a talk about politics, including appointments, or to settle some administrative question which lies on the borderland between the provinces of two ministers. A significant illustration of the contrast between the English and American systems may be found in the fact that whereas an English monarch has never (since Queen Anne’s time) sat in his own cabinet, because if he did he would be deemed accountable for its decisions, an American president always does, because he is accountable, and really needs advice to help him, not to shield him.14

The so-called cabinet is unknown to the statutes as well as to the Constitution of the United States. So is the English cabinet unknown to theEdition: current; Page: [85] law of England. But then the English cabinet is a part, is, in fact, a committee, though no doubt an informal committee, of a body as old as Parliament itself, the Privy Council, or Curia Regis. Of the ancient institutions of England which reappear in the Constitution of the United States, the Privy Council is not one.15 It may have seemed to the Convention of 1787 to be already obsolete. Even in England it was then already a belated survival from an earlier order of things, and now it lives on only in its committees, three of which, the Board of Trade, the Board of Education, and the Agricultural Department, serve as branches of the administration, one, the Judicial Committee, is a law court, and one, the Cabinet, is the virtual executive of the nation.16 The framers of the American Constitution saw its unsuitability to their conditions. It was nominated, while with them a council must have been elective. Its only effect would have been to control the president, but for domestic administration control is scarcely needed, because the president has only to execute the laws, while in foreign affairs and appointments the Senate controls him already. A third body, over and above the two houses of Congress, was in fact superfluous. The Senate may appear in some points to resemble the English Privy Council of the seventeenth century, because it advises the executive in certain matters; but there is all the difference in the world between being advised by those whom you have yourself chosen and those whom election by others forces upon you. So it happens that the relations of the Senate and the president are seldom cordial, much less confidential, even when he and the majority of the Senate belong to the same party, because the Senate and the president are rival powers jealous of one another.

Note on Army and Navy

The army and navy of the United States have greatly increased in recent years.

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Number of officers and men in the army was in 1889 26,235
In 1912 it was Officers 4,947
Men 87,279
The cost of the army was in 1889 $42,381,671
In 1913 the army appropriations reached $103,747,441
In the navy the number of officers and men was:
In 1889 9,831
In 1913 57,178

In 1889 there were six fighting ships in the navy.

In 1912 there were 208 fighting ships classified as follows:

Battleships (Besides nine old battleships) 29
Cruisers, First class 15
Second class 3
Third class 14
Gunboats 21
Monitors 10
Destroyers 49
Torpedo boats 32
Submarines 35

In 1889 the cost of the navy was $25,767,348.19; in 1913, it was $123,220,707

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chapter 10

The Senate

The national legislature of the United States, called Congress, consists of two bodies, sufficiently dissimilar in composition, powers, and character to require a separate description.

The Senate consists of two persons from each state, who must be inhabitants of that state, and at least thirty years of age. They were until 1913 elected by the legislature of their state for six years, but are now under the Seventeenth Amendment to the Constitution elected by the registered voters of the state. They are reeligible. One-third retire every two years, so that the whole body is renewed in a period of six years, the old members being thus at any given moment twice as numerous as the new members elected within the last two years. As there are now forty-eight states, the number of senators, originally twenty-six, is now ninety-six. This great and unforeseen augmentation must be borne in mind when considering the purposes for which the Senate was created, for some of which a small body is fitter than a large one. As there remain no Territories which can be formed into states,1 the number of senators will not (unless, indeed, existing states are divided) rise beyond ninety-six. This is of course much below the present nominal strength of the English House of Lords2 (above six hundred), and below that of the French Senate (three hundred), and the Prussian Herrenhaus. No senator can hold any office under the United States. The vice-president of the Union is ex officio president of the Senate, but has no vote, except a casting vote when the numbers are equally divided. Failing him (if, for instance, he dies, or falls sick, or succeeds to the presidency), the SenateEdition: current; Page: [88] chooses one of its number to be president pro tempore. His authority in questions of order is very limited, the decision of such questions being held to belong to the Senate itself.3

The functions of the Senate fall into three classes—legislative, executive, and judicial.4 Its legislative function is to pass, along with the House of Representatives, bills which become acts of Congress on the assent of the president, or even without his consent if passed a second time by a two-thirds majority of each house, after he has returned them for reconsideration. Its executive functions are: (a) To approve or disapprove the president’s nominations of federal officers, including judges, ministers of state, and ambassadors; (b) to approve, by a majority of two-thirds of those present, of treaties made by the president—i.e., if less than two-thirds approve, the treaty falls to the ground. Its judicial function is to sit as a court for the trial of impeachments preferred by the House of Representatives.

The most conspicuous, and what was at one time deemed the most important feature of the Senate, is that it represents the several states of the Union as separate commonwealths, and is thus an essential part of the federal scheme. Every state, be it as great as New York or as small as Delaware, sends two senators, no more and no less.5 This arrangement was long resisted by the delegates of the larger states in the Convention of 1787, and ultimately adopted because nothing less would reassure the smaller states, who feared to be overborne by the larger. It is now the provision of the Constitution most difficult to change, for “no State can be deprived of its equal suffrage in the Senate without its consent,” a consent most unlikely to be given. There has never, in point of fact, been any division of interestsEdition: current; Page: [89] or consequent contest between the great states and the small ones.6 But the provision for the equal representation of all states had the important result of making the slaveholding party, during the thirty years which preceded the Civil War, eager to extend the area of slavery in order that by creating new slave states they might maintain at least an equality in the Senate, and thereby prevent any legislation hostile to slavery.

The plan of giving representatives to the states as commonwealths has had several useful results. It has provided a basis for the Senate unlike that on which the other house of Congress is chosen. Every nation which has formed a legislature with two houses has experienced the difficulty of devising methods of choice sufficiently different to give a distinct character to each house. Italy has a Senate composed of persons nominated by the Crown. The Prussian House of Lords is partly nominated, partly hereditary, partly elective. The Spanish senators are partly hereditary, partly official, partly elective. In the Germanic Empire, the Federal Council consists of delegates of the several kingdoms and principalities. France appoints her senators by indirect election. In England the nonspiritual members of the House of Lords now sit by hereditary right; and those who propose to reconstruct that ancient body are at their wits’ end to discover some plan by which it may be strengthened, and made practically useful, without such a direct election as that by which members are chosen to the House of Commons.7 The American plan, which is older than any of those in use on the European continent, is also better, because it is not only simple, but natural, i.e., grounded on and consonant with the political conditions of America. It produces a body which is both strong in itself and different in its collective character from the more popular House.

Till 1913, it also constituted, as Hamilton anticipated, a link between the state governments and the national government. It is a part of the latter, but its members derive their title to sit in it from their choice by state legislatures. In one respect this connection is no unmixed benefit, for it has helped to make the national parties powerful, and their strife intense, in these last-named bodies. Every vote in the Senate was so important to the great partiesEdition: current; Page: [90] that they are forced to struggle for ascendency in each of the state legislatures by whom the senators were elected. The method of choice in these bodies was formerly left to be fixed by the laws of each state, but as this gave rise to much uncertainty and intrigue, a federal statute was passed in 1866 providing that each house of a state legislature shall first vote separately for the election of a federal senator, and that if the choice of both houses shall not fall on the same person, both houses in joint meeting shall proceed to a joint vote, a majority of all the members elected to both houses being present and voting. Even under this arrangement, a senatorial election often leads to long and bitter struggles; the minority endeavouring to prevent a choice, and so keep the seat vacant. Moreover such struggles gave occasion for efforts to influence the doubtful members of a legislature out of which charges of improper methods often arose.

The method of choosing the Senate by indirect election used to excite the admiration of foreign critics, who have found in it a sole and sufficient cause of the excellence of the Senate as a legislative and executive authority. I shall presently inquire whether the critics were right. Be that as it may, the method was before the close of last century becoming increasingly unpopular. Choice by a legislature had come to mean choice by a party majority in a legislative caucus, and the determination of that caucus had often been prearranged by a small group of party managers; or if that did not happen secretly, it had been settled in a party convention which directed the members of the party in the legislature how to cast their votes. There was anyhow little room left for free selection by the legislature. The people, or rather those wire-pullers who manage the people and act in their name, had usually settled the matter beforehand. So hard is it to make any scheme of indirect election work according to its original design; so hard is it to keep even a written and rigid constitution from bending and warping under the actual forces of politics.

Cases moreover occurred in which a rich man practically bought his election. One such led, in 1912, to the expulsion of a newly elected senator for bribery.

While public sentiment was growing more and more hostile to the method of election by state legislatures, and resolutions calling for a change were being passed by these legislatures themselves at the bidding of that sentiment, a plan was discovered by which what amounted to a direct popular election was secured in an indirect way. In 1904 Oregon provided, by a law passed by the people under the initiative method of legislation contained in the constitution of that state, that the political parties might in the party primariesEdition: current; Page: [91] nominate persons for election as United States senators, and that the people might at the ensuing election of the state legislature select by their votes one of these nominees as their choice for senator. Along with this it was also enacted that a candidate for the state legislature might on his nomination either: (1) declare that he would, if elected, vote for that person as United States senator who had received the largest popular vote and thus become “the people’s choice”; or, (2) declare that he would consider the popular vote as merely “a recommendation.” Or he might make no declaration at all. In 1908 a majority of the members elected to the legislature, having made the former declaration, felt bound to carry it out, and the person who had received the highest popular vote was accordingly elected by that majority, although he was a Democrat and they were Republicans. Thus the people got their way and the federal Constitution was not formally transgressed. In 1909 Nebraska adopted a similar law.

The flank of the Constitution having been thus, so to speak, turned, the battle was virtually over, and the Senate, hitherto hostile to popular election, presently gave way. An amendment transferring the election to the peoples of the states was passed in Congress and accepted by the legislatures of all the states in 1913.8

How the new plan will work remains to be seen. It has some obvious merits, and it need not tend to make the Senate a less independent body, for it has in recent years been quite as prone to “play to the gallery” as the House or any other directly elected chamber. But it may add immensely to the expense falling on candidates, as well as to the labour thrown on them in stumping the state; and if it causes senators to be less frequently reelected at the end of their term, it will reduce the element of long political experience heretofore present in it more largely than in the House.

As to the element of expense involved in direct elections, it may be said that the sum which can be spent by candidates for the Senate is fixed by the law of 1911 at $10,000 and that this amount cannot be exceeded under the new arrangement. The obvious reply to this is that under the old system many senators paid nothing at all for their campaign expenses and that the law just referred to does not limit the amount which may be spent by the friends of a candidate in his campaign. It is money from outside sources that is to be feared more than heavy expenditures by the candidates themselves. On the other hand, it is notorious that large sums of moneyEdition: current; Page: [92] were often paid by candidates seeking their election from state legislatures; and many champions of the new order say that it is better for the money to be spent in a statewide campaign of publicity than in the secret confines of the legislative caucus.

Members of the Senate vote as individuals, that is to say, the vote a senator gives is his own and not that of his state. It was otherwise in the Congress of the old Confederation before 1789; it is otherwise in the present Federal Council of the German Empire, in which each state votes as a whole, though the number of her votes is proportioned to her population. Accordingly, in the American Senate, the two senators from a state may belong to opposite parties; and this often happens in the case of senators from states in which the two great parties are pretty equally balanced, and the majority oscillates between them.9 As the state legislatures sit for short terms (the larger of the two houses usually for two years only), a senator has during the greater part of his six years’ term to look for reelection not to the present but to a future state legislature,10 and this circumstance tends to give him somewhat more independence.

The length of the senatorial term was one of the provisions of the Constitution which were most warmly attacked and defended in 1788. A six years’ tenure, it was urged, would turn the senators into dangerous aristocrats, forgetful of the legislature which had appointed them; and some went so far as to demand that the legislature of a state should have the right to recall its senators.11 Experience has shown that the term is by no means too long; and its length is one among the causes which have made it easier for senators than for members of the House to procure reelection, a result which, though it offends the doctrinaires of democracy, worked well for the country. Senators from the smaller states were more frequently reelected than those from the larger, because in the small states the competition of ambitious men is less keen, politics less changeful, the people perhaps more steadily attached to a man whom they have once honoured with theirEdition: current; Page: [93] confidence. The senator from such a state generally found it more easy to maintain his influence over his own legislature; not to add that if the state should be amenable to the power of wealth, his wealth will tell for more than it could in a large state. Yet no small state was ever more controlled by one man than the great state of Pennsylvania by its “bosses” ever since the Civil War years. The average age of the Senate is less than might be expected. Three-fourths of its members are under sixty. The importance of the state he represents makes no great difference to the influence which a senator enjoys; this depends on his talents, experience, and character; and as the small state senators have often the advantage of long service and a safe seat, they are often among the most influential.

The Senate resembles the upper houses of Europe, and differs from those of the British colonies, and of most of the states of the Union, in being a permanent chamber. It is an undying body, with an existence continuous since its first creation; and though it changes, it does not change all at once, as do assemblies created by a singular popular election, but undergoes an unceasing process of gradual renewal, like a lake into which streams bring fresh water to replace that which the issuing river carries out. As Harrington said of the Venetian Senate, “being always changing, it is forever the same.” This provision was designed to give the Senate that permanency of composition which might qualify it to conduct or control the foreign policy of the nation. An incidental and more valuable result has been the creation of a set of traditions and a corporate spirit which have tended to form habits of dignity and self-respect. The new senators, being only one-third, or less, are readily assimilated; and though the balance of power shifts from one party to another according to the predominance of one or other party, it shifts more slowly than in bodies directly chosen all at once, and a policy is therefore less apt to be suddenly reversed.

The legislative powers of the Senate being, except in one point, the same as those of the House of Representatives, will be described later. That one point is a restriction as regards money bills. On the ground that it is only by the direct representatives of the people that taxes ought to be levied, and in obvious imitation of the venerable English doctrine, which had already found a place in several state constitutions, the Constitution (art. I, §7) provides that “All bills for raising revenue shall originate in the House of Representatives, but the Senate may propose or concur with amendments, as on other bills.” In practice, while the House strictly guards its right of origination, the Senate largely exerts its power of amendment, and wrangles with the House over taxes, and still more keenly over appropriations. AlmostEdition: current; Page: [94] every session ends with a dispute, a conference, a compromise. Among the rules (a few extracts from which, touching some noteworthy points, will be found in the Appendix) there is none providing for a closure of debate (although an attempt to introduce such a rule was made by Henry Clay, and renewed in 1890), nor any limiting the length either of a debate or of a speech. The Senate is proud of having conducted its business without the aid of such regulations, and this has been due, not merely to the small size of the assembly, but to the sense of its dignity which has usually pervaded its members, and to the power which the opinion of the whole body has exercised on each. Where every man knows his colleagues intimately, each, if he has a character to lose, stands in awe of the others, and has so strong a sense of his own interest in maintaining the moral authority of the chamber, that he is slow to resort to extreme methods which might lower it in public estimation. Till recently, systematic obstruction, or, as it is called in America, “filibustering,” familiar to the House, was almost unknown in the calmer air of the Senate. When it was applied some years ago by the Democratic senatrs to stop a bill to which they strongly objected, their conduct was not disapproved by the country, because the whole party, a minority very little smaller than the Republican majority, supported it, and people believed that nothing but some strong reason would have induced the whole party so to act. Accordingly the majority yielded.

The absence of a closure rule is a fact of great political moment. In 1890 it prevented the passage of a bill, already accepted by the House, for placing federal elections under the control of federal authorities, a measure which would have powerfully affected the Southern states, and might possibly have raised civil commotions.

Divisions are taken, not by separating the senators into lobbies and counting them, as in the British Parliament, but by calling the names of senators alphabetically. The Constitution provides that one-fifth of those present may demand that the yeas and nays be entered in the journal. Every senator answers to his name with aye or no. He may, however, ask the leave of the Senate to abstain from voting; and if he is paired, he states, when his name is called, that he has paired with such and such another senator, and is thereupon excused.

When the Senate goes into executive session, the galleries are cleared and the doors closed; and the obligation of secrecy is supposed to be enforced by the penalty of expulsion to which a senator, disclosing confidential proceedings, makes himself liable. Practically, however, newspaperEdition: current; Page: [95] men find little difficulty in ascertaining what passes in secret session.12 The threatened punishment has never been inflicted, and occasions often arise when senators feel it to be desirable that the public should know what their colleagues have been doing. There have been movements within the Senate against maintaining secrecy, particularly with regard to the confirming of nominations to office; and there is also a belief in the country that publicity would make for purity. But while some of the black sheep of the Senate love darkness because their works are evil, other members of undoubted respectability defend the present system because they think it supports the power and dignity of their body.

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chapter 11

The Senate as an Executive and Judicial Body

The Senate is not only a legislative but also an executive chamber; in fact in its early days the executive functions seem to have been thought the more important; and Hamilton went so far as to speak of the national executive authority as divided between two branches, the president and the Senate. These executive functions are two, the power of approving treaties, and that of confirming nominations to office submitted by the president.

To what has already been said regarding the functions of the president and Senate as regards treaties (see above, Chapter 6) I need only add that the Senate through its right of confirming or rejecting engagements with foreign powers, secures a general control over foreign policy; though it must be remembered that many of the most important acts done in this sphere (as for instance the movement of troops or ships) are purely executive acts, not falling under this control. It is in the discretion of the president whether he will communicate current negotiations to it and take its advice upon them, or will say nothing till he lays a completed treaty before it. One or other course is from time to time followed, according to the nature of the case, or the degree of friendliness existing between the president and the majority of the Senate. But in general, the president’s best policy is to keep the leaders of the senatorial majority, and in particular the Committee on Foreign Relations, informed of the progress of any pending negotiation. He thus feels the pulse of the Senate, which, like other assemblies, has a collective self-esteem leading it to strive for all the information and power it can secure, and while keeping it in good humour, can foresee what kind of arrangement it may be induced to sanction. Much depends upon the confidence which the Senate feels in the judgment of the secretary of stateEdition: current; Page: [97] and on the tact which he shows in his dealings with senators. The right of going into secret session enables the whole Senate to consider despatches communicated by the president; and though treaties are sometimes considered in open session, important matters having first been submitted to the Foreign Relations Committee, can thus be discussed without the disadvantage of publicity. Of course no momentous secret can be long kept,1 even by the committee, according to the proverb in the Elder Edda— “Tell one man thy secret, but not two; if three know, the world knows.”

This control of foreign policy by the Senate goes far to meet the difficulties which popular governments find in dealing with foreign powers. If each step to be taken must be previously submitted to the ruling assembly, the nation is forced to show its whole hand, and precious opportunities of winning an ally or striking a bargain may be lost. If on the other hand the executive is permitted to conduct negotiations in secret, there is always the risk, either that the governing assembly may disavow what has been done, a risk which makes foreign states legitimately suspicious and unwilling to negotiate, or that the nation may have to ratify, because it feels bound in honour by the act of its executive agents, arrangements which its judgment condemns. Participation by the Senate in negotiations diminishes these difficulties, because it apprises the executive of what the judgment of the ratifying body is likely to be, and it commits that body by advance. The necessity of ratification by the Senate in order to give effect to a treaty, enables the country to retire from a doubtful bargain, though in a way which other powers find disagreeable, as England did when the Senate rejected the Reverdy-Johnson Treaty of 1869. European statesmen may ask what becomes under such a system of the boldness and promptitude so often needed to effect a successful coup in foreign policy, or how a consistent attitude can be maintained if there is in the chairman of the Foreign Relations Committee a sort of second foreign secretary. The answer is that America is not Europe. The problems which the State Department of the United States has to deal with have been far fewer and usually far simpler than those of the Old World. The Republic, though her power has now crossed the Pacific, keeps consistently to her own side of the Atlantic; and it is a merit of the system of senatorial control that it has tended, by discouraging the executive from schemes which may prove resultless, to diminish the taste for foreign enterprises, and to save the country from being entangled with alliances, protectorates, responsibilities of all sorts beyond its own frontiers. It is theEdition: current; Page: [98] easier for the Americans to practise this reserve because they need no alliances, standing unassailable in their own hemisphere. The circumstances of England, with her powerful European neighbours, her Indian Empire, and her colonies scattered over the world, are widely different. Yet different as the circumstances of England are, the day may come when in England the question of limiting the at present wide discretion of the executive in foreign affairs will have to be dealt with.2 The example of the American Senate may then be cited, but there is of course this important difference between the two countries, that in England Parliament can dismiss ministers who have concluded a treaty which it disapproves, whereas in the United States a president, not being similarly removable by Congress, would be exempt from any control were the Senate not associated with him in the making of a treaty.

The Senate may and occasionally does amend a treaty, and return it amended to the president. There is nothing to prevent it from proposing a draft treaty to him, or asking him to prepare one, but this is not the practice. For ratification a vote of two-thirds of the senators present is required. This gives great power to a vexatious minority, and increases the danger, evidenced by several incidents in the history of the Union, that the Senate or a faction in it may deal with foreign policy in a narrow, sectional, electioneering spirit. When the interest of any group of states is, or is supposed to be, against the making of a given treaty, that treaty may be defeated by the senators from those states. They tell the other senators of their own party that the prospects of the party in the district of the country whence they come will be improved if the treaty is rejected and a bold aggressive line is taken in further negotiations. Some of these senators, who care more for the party than for justice or the common interests of the country, rally to the cry, and all the more gladly if their party is opposed to the president in power, because in defeating the treaty they humiliate his administration. Thus the treaty may be rejected, and the settlement of the question at issue indefinitely postponed. It may be thought that a party acting in this vexatious way will suffer in public esteem. This happens in extreme cases; but the public are usually so indifferent to foreign affairs, and so little skilled in judging of them, that offences of the kind describedEdition: current; Page: [99] may be committed with practical impunity. It is harder to fix responsibility on a body of senators than on the executive; and whereas the executive has usually an interest in settling diplomatic troubles, whose continuance it finds annoying, the Senate has no such interest, but is willing to keep them open so long as some political advantage can be sucked out of them. The habit of using foreign policy for electioneering purposes is not confined to America. It has been seen in England, and in France, and even in monarchical Germany. But in America the treaty-confirming power of the Senate opens a particularly easy and tempting door to such practices.

The other executive function of the Senate, that of confirming nominations submitted by the president, has been discussed in the chapter on the powers of that officer. It is there explained how senators have used their right of confirmation to secure for themselves a huge mass of federal patronage, and how by means of this right, a majority hostile to the president can thwart and annoy him. Sometimes he ought to be thwarted; yet the protection which the Senate provides against abuses of his nominating power is far from complete.

Does the control of the Senate operate to prevent abuses of patronage by the president? To some extent it does, yet less completely than could be wished. When the majority belongs to the same party as the president, appointments are usually arranged, or to use a familiar expression, “squared,” between them, with a view primarily to party interests. When the majority is opposed to the president, they are tempted to agree to his worst appointments, because such appointments discredit him and his party with the country, and become a theme of hostile comment in the next electioneering campaign. As the initiative is his, it may be the nominating president, and not the confirming Senate, whom public opinion will condemn. These things being so, it may be doubted whether this executive function of the Senate is now a valuable part of the Constitution. It was designed to prevent the president from making himself a tyrant by filling the great offices with his accomplices or tools. That danger has passed away, if it ever existed; and Congress has other means of muzzling an ambitious chief magistrate. The more fully responsibility for appointments can be concentrated upon him, and the fewer the secret influences to which he is exposed, the better will his appointments be. On the other hand, it must be admitted that the participation of the Senate causes in practice less friction and delay than might have been expected from a dual control. The appointments to the cabinet offices are confirmed as a matter of course. Those of diplomatic officers are seldom rejected. “Little tiffs” are frequent when the senatorialEdition: current; Page: [100] majority is in opposition to the executive, but the machinery, if it does not work smoothly, works well enough to carry on the ordinary business of the country, though a European observer, surprised that a democratic country allows such important business to be transacted with closed doors, is inclined to agree with the view lately advanced in the Senate that nominations ought to be discussed publicly rather than in secret executive session.

The judicial function of the Senate is to sit as a high court for the trial of persons impeached by the House of Representatives. The senators “are on oath or affirmation,” and a vote of two-thirds of those present is needed for a conviction. Of the process, as affecting the president, I have spoken in Chapter 5. It is applicable to other officials. Besides President Johnson, eight persons in all have been impeached, viz.:

  • Six federal judges, of whom three were acquitted, and three convicted, one for violence and drunkenness, another for having joined the Secessionists of 1861, a third (a judge of the Commerce Court) for conduct in pending suits which tended to his own profit. Impeachment is the only means by which a federal judge can be got rid of.
  • One senator, who was acquitted for want of jurisdiction, the Senate deciding that a senatorship is not a “civil office” within the meaning of art. III, § 4 of the Constitution.
  • One minister, a secretary of war, who resigned before the impeachment was actually preferred, and escaped on the ground that being a private person he was not impeachable.

Rarely as this method of proceeding has been employed, it could not be dispensed with; and it is better that the Senate should try cases in which a political element is usually present, than that the impartiality of the Supreme Court should be exposed to the criticism it would have to bear, did such political questions come before it. Most senators are or have been lawyers of eminence, so that so far as legal knowledge goes they are competent members of a court.

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chapter 12

The Senate: Its Working and Influence

Most Americans consider the Senate one of the successes of their Constitution, a worthy monument of the wisdom and foresight of its founders. Foreign observers have repeated this praise, and have perhaps, in their less perfect knowledge, sounded it even more loudly.

The aims with which the Senate was created, the purposes it was to fulfil, are set forth, under the form of answers to objections, in five letters (61–65), all by Alexander Hamilton, in the Federalist. 1 These aims were the five following:

  • To conciliate the spirit of independence in the several states, by giving each, however small, equal representation with every other, however large, in one branch of the national government;
  • To create a council qualified, by its moderate size and the experience of its members, to advise and check the president in the exercise of his powers of appointing to office and concluding treaties;
  • To restrain the impetuosity and fickleness of the popular House, and so guard against the effects of gusts of passion or sudden changes of opinion in the people;
  • To provide a body of men whose greater experience, longer term of membership, and comparative independence of popular election, would make them an element of stability in the government of the nation, enabling it to maintain its character in the eyes of foreign states, and to preserve a continuity of policy at home and abroad;Edition: current; Page: [102]
  • To establish a court proper for the trial of impeachments, a remedy deemed necessary to prevent abuse of power by the executive.

All of these five objects have been more or less perfectly attained; and the Senate has acquired a position in the government which Hamilton scarcely ventured to hope for. In 1788 he wrote: “Against the force of the immediate representatives of the people, nothing will be able to maintain even the constitutional authority of the Senate, but such a display of enlightened policy, and attachment to the public good, as will divide with the House of Representatives the affections and support of the entire body of the people themselves.”

It may be doubted whether the Senate has excelled the House in attachment to the public good; but it has certainly shown greater capacity for managing the public business, and has won the respect, if not the affections, of the people, by its sustained intellectual power.

The Federalist did not think it necessary to state, nor have Americans generally realized, that this masterpiece of the Constitution-makers was in fact a happy accident. No one in the Convention of 1787 set out with the idea of such a Senate as ultimately emerged from their deliberations. It grew up under the hands of the Convention, as the result of the necessity for reconciling the conflicting demands of the large and the small states. The concession of equal representation in the Senate induced the small states to accept the principle of representation according to population in the House of Representatives; and a series of compromises between the advocates of popular power, as embodied in the House, and those of monarchical power, as embodied in the president, led to the allotment of attributes and functions which have made the Senate what it is. When the work which they had almost unconsciously perfected was finished, the leaders of the Convention perceived its excellence, and defended it by arguments in which we feel the note of sincere conviction. Yet the conception they formed of it differed from the reality which has been evolved. Although they had created it as a branch of the legislature, they thought of it as being first and foremost a body with executive functions. And this, at first, it was. The traditions of the old Congress of the Confederation, in which the delegates of the states voted by states, the still earlier traditions of the executive councils, which advised the governors of the colonies while still subject to the British Crown, clung about the Senate and affected the minds of the senators. It was a small body, originally of twenty-six, even in 1810 of thirty-four members only, a body not ill fitted for executive work. Its members, regardingEdition: current; Page: [103] themselves as a sort of congress of ambassadors from their respective states, were accustomed to refer for advice and instructions each to his state legislature. So late as 1828, a Senator after arguing strongly against a measure declared that he would nevertheless vote for it, because he believed his state to be in its favour.2 For the first five years of its existence, the Senate sat with closed doors, occupying itself chiefly with the confidential business of appointments and treaties, and conferring in private with the ministers of the president. Not till 1816 did it create, in imitation of the House, those standing committees which the experience of the House had shown to be, in bodies where the executive ministers do not sit, the necessary organs for dealing with legislative business. Its present character as a legislative body, not less active and powerful than the other branch of Congress, is the result of a long process of evolution, a process possible (as will be more fully explained hereafter) even under the rigid Constitution of the United States, because the language of the sections which define the competence of the Senate is wide and general. But in gaining legislative authority, it has not lost its executive functions, although those which relate to treaties are largely exercised on the advice of the standing Committee on Foreign Relations. And as respects these executive functions it stands alone in the world. No European state, no British colony, entrusts to an elective assembly that direct participation in executive business which the Senate enjoys.

What is meant by saying that the Senate has proved a success?

It has succeeded by effecting that chief object of the Fathers of the Constitution, the creation of a centre of gravity in the government, an authority able to correct and check on the one hand the “democratic recklessness” of the House, on the other the “monarchical ambition” of the president. Placed between the two, it is necessarily the rival and generally the opponent of both. The House can accomplish nothing without its concurrence. The president can be checkmated by its resistance. These are, so to speak, negative or prohibitive successes. It has achieved less in the way of positive work, whether of initiating good legislation or of improving the measures which the House sends it. But the whole scheme of the American Constitution tends to put stability above activity, to sacrifice the productive energies of the bodies it creates to their power of resistingEdition: current; Page: [104] changes in the general fabric of the government. The Senate has succeeded in making itself eminent and powerful. It has drawn the best talent of the nation, so far as that talent flows to politics, into its body, has established an intellectual supremacy, has furnished a vantage ground from which men of ability may speak with authority to their fellow citizens.

To what causes are these successes to be ascribed? Hamilton assumed that the Senate would be weaker than the House of Representatives, because it would not so directly spring from, speak for, be looked to by, the people. This was a natural view, especially as the analogy between the position of the Senate towards the House of Representatives in America, and that of the House of Lords towards the House of Commons in Great Britain, an analogy constantly present to the men of 1787, seemed to suggest that the larger and more popular chamber must dwarf and overpower the smaller one. But the Senate has proved no less strong, and morally more influential, than its sister House of Congress. The analogy was unsound, because the British House of Lords is hereditary and the Senate representative. In these days no hereditary assembly, be its members ever so able, ever so wealthy, ever so socially powerful, can speak with the authority which belongs to those who speak for the people. Mirabeau’s famous words in the Salle des Menus at Versailles, “We are here by the will of the people, and nothing but bayonets shall send us hence,” express the whole current of modern feeling. Now the Senate, albeit not chosen by direct popular election, does represent the people; and what it may lose through not standing in immediate contact with the masses, it gains in representing such ancient and powerful commonwealths as the states. A senator from New York or Pennsylvania speaks for, and is responsible to, millions of men. No wonder he has an authority beyond that of the long-descended nobles of Prussia, or the peers of Britain whose possessions stretch over whole counties.

This is the first reason for the strength of the Senate, as compared with the upper chambers of other countries. It is built on a solid foundation of ultimate choice by the people and consequent responsibility to them. A second cause is to be found in its small size. A small body educates its members better than a large one, because each member has more to do, sooner masters the business not only of his committee but of the whole body, feels a livelier sense of the significance of his own action in bringing about collective action. There is less disposition to abuse the freedom of debate. Party spirit may be as intense as in great assemblies, yet it is mitigated by the disposition to keep on friendly terms with those whom, however much you may dislike them, you have constantly to meet, and byEdition: current; Page: [105] the feeling of a common interest in sustaining the authority of the body. A senator soon gets to know each of his colleagues—they were originally only twenty-five—and what each of them thinks of him; he becomes sensitive to their opinion; he is less inclined to pose before them, however he may pose before the public. Thus the Senate formed, in its childhood, better habits in discussing and transacting its business than would have been formed by a large assembly; and these habits its maturer age retains. Its comparative permanence has also worked for good. Six years, which seem a short term in Europe, are in America a long term when compared with the two years for which the House of Representatives and the assemblies of nearly all the states are elected, long also when compared with the swiftness of change in American politics. A senator has the opportunity of thoroughly learning his duties, and of proving that he has learnt them. He becomes slightly more independent of his constituency, which in America, where politicians catch at every passing breeze of opinion, is a clear gain. Nevertheless he must be frequently at work in his state, and struggle to maintain his influence among local politicians there.

The smallness and the permanence of the Senate have however another important influence on its character. They contribute to one main cause of its success, the superior intellectual quality of its members. Every European who has described it, has dwelt upon the capacity of those who compose it, and most have followed Tocqueville in attributing this capacity to the method of double election. In supposing that the choice of senators by the state legislature had proved a better means than direct choice by the people of discovering and selecting the fittest men they missed the real cause. I have already remarked that since the Civil War the legislatures did little more than register and formally complete a choice already made by the party managers, and perhaps ratified in the party convention. But apart from this recent development, and reviewing the whole hundred years’ history of the Senate, the true explanation of its capacity is to be found in the superior attraction which it has for the ablest and most ambitious men. A senator has more power than a member of the House, more dignity, a longer term of service, a more independent position. Hence every federal politician aims at a senatorship, and looks on the place of representative as a stepping-stone to what is in this sense an upper house, that it is the house to which representatives seek to mount. It is no more surprising that the average capacity of the Senate should surpass that of the House, than that the average cabinet minister of Europe should be abler than the average member of the legislature.

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What is more, the Senate so trains its members as to improve their political efficiency. Several years of service in a small body, with important and delicate executive work, are worth twice as many years of jostling in the crowd of representatives at the other end of the Capitol. If the Senate does not find the man who enters it already superior to the average of federal politicians, it makes him superior. But natural selection, as has been said, usually seats upon its benches the best ability of the country that has flowed into political life, and would do so no less were the election in form a direct one by the people at the polls.

Most of the leading men of the last century have sat in the Senate, and in it were delivered most of the famous speeches which illumine, though too rarely, the wearisome debates over states’ rights and slavery from 1825 till 1860. One of these debates, that in the beginning of 1830, which called forth Daniel Webster’s majestic defence of the Constitution, was long called par excellence “the great debate in the Senate.” 3

Of the ninety-two senators who sat in the Sixty-first Congress (1909–11) thirty-six had sat in the other house of Congress, and thirty-nine had served in state legislatures.4 In the Sixty-second Congress (1911–13) out of ninety-six senators, twenty-eight had sat in the House of Representatives, and thirty-nine in state legislatures. Many had been judges or state governors; many had sat in state conventions. Nearly all had held some public function. A man must have had considerable experience of affairs, and of human nature in its less engaging aspects, before he enters this august conclave. But experience is not all gain. Practice makes perfect in evildoing no less than in well-doing. The habits of local politics and of work in the House of Representatives by which the senators have been trained, while they develop shrewdness and quickness in all characters, tell injuriously on characters of the meaner sort, leaving men’s views narrow, and giving them a taste as well as a talent for intrigue.

The chamber in which the Senate meets is rectangular, but the part occupied by the seats is semicircular in form, the vice-president of the United States, who acts as presiding officer, having his chair on a marble dais, slightly raised, in the centre of the chord, with the senators all turnedEdition: current; Page: [107] towards him as they sit in curving rows, each in an armchair, with a desk in front of it. The floor is about as large as the whole superficial area of the British House of Commons, but as there are great galleries on all four sides, running back over the lobbies, the upper part of the chamber and its total air space much exceeds that of the English house. One of these galleries is appropriated to the president of the United States; the others to ladies, diplomatic representatives, the press, and the public. Behind the senatorial chairs and desks there is an open space into which strangers can be brought by the senators, who sit and talk on the sofas there placed. Members of foreign legislatures are allowed access to this outer “floor of the Senate.” There is, especially when the galleries are empty, a slight echo in the room, which obliges most speakers to strain their voices. Two or three pictures on the walls somewhat relieve the cold tone of the chamber, with its marble platform and sides unpierced by windows, for the light enters through glass compartments in the ceiling.

A senator always addresses the chair “Mr. President,” and refers to other senators by their states, “The senator from Ohio,” “The senator from Tennessee.” When two senators rise at the same moment, the chair calls on one, indicating him by his state, “The senator from Minnesota has the floor.” 5 Senators of the Democratic party sit, and apparently always have sat, on the right of the chair, Republican senators on the left; but, as already explained, the parties do not face one another. The impression which the place makes on a visitor is one of businesslike gravity, a gravity which though plain is dignified. It has the air not so much of a popular assembly as of a diplomatic congress. The English House of Lords, with its fretted roof and windows rich with the figures of departed kings, its majestic throne, its Lord Chancellor in his wig on the woolsack, its benches of lawn-sleeved bishops, its bar where the Commons throng at a great debate, is not only more gorgeous and picturesque in externals, but appeals far more powerfully to the historical imagination, for it seems to carry the Middle Ages down into the modern world. The Senate is modern, severe, and practical. So, too, few debates in the Senate rise to the level of the better debates in the English chamber. But the Senate seldom wears that air of listless vacuityEdition: current; Page: [108] and superannuated indolence which the House of Lords presents on all but a few nights of every session. The faces are keen and forcible, as of men who have learned to know the world, and have much to do in it; the place seems consecrated to great affairs.

As might be expected from the small number of the audience, as well as from its character, discussions in the Senate are apt to be sensible and practical. Speeches are shorter and less fervid than those made in the House of Representatives, for the larger an assembly the more prone is it to declamation. The least useful debates are those on show days, when a series of set discourses are delivered on some prominent question. Each senator brings down and fires off in the air a carefully prepared oration which may have little bearing on what has gone before. In fact the speeches are made not to convince the assembly—no one dreams of that—but to keep a man’s opinions before the public and sustain his fame. The question at issue has usually been already settled, either in a committee or in a “caucus” of the party which commands the majority, so that these long and sonorous harangues are mere rhetorical thunder addressed to the nation outside.

The Senate now contains many men of great wealth. Some, an increasing number, are senators because they are rich; a few are rich because they are senators; while in the remaining cases the same talents which have won success in law or commerce have brought their possessor to the top in politics also. The commercial element is stronger now than formerly; but the majority are or have been lawyers. Some senators used to practice before the Supreme Court, but that is now rare. Complaints are occasionally levelled against the aristocratic tendencies which wealth is supposed to have bred, and sarcastic references are made to the sumptuous residences which senators have built on the new avenues of Washington. While admitting that there is more sympathy for the capitalist class among these rich men than there would be in a Senate of poor men, I must add that the Senate is far from being a class body like the upper houses of England or Prussia or Spain or Denmark. It is substantially representative, by its composition as well as by legal delegation, of all parts of American society; it is far too dependent, and far too sensible that it is dependent, upon public opinion, to undertake the championship of the rich, although doubtless more in sympathy with them than is the House. The senators, however, indulge some social pretensions. They are the nearest approach to an official aristocracy that has yet been seen in America. They and their wives are allowed precedence at private entertainments, as well as on public occasions, over members of the House, and of course over private citizens. JeffersonEdition: current; Page: [109] might turn in his grave if he knew of such an attempt to introduce European distinctions of rank into his democracy; yet as the office is temporary, and the rank vanishes with the office, these pretensions are harmless; it is only the universal social equality of the country that makes them noteworthy. Apart from such petty advantages, the position of a senator, who can count on reelection, is the most desirable in the political world of America. It gives as much power and influence as a man need desire. It secures for him the ear of the public. It is more permanent than the presidency or a cabinet office, requires less labour, involves less vexation, though still great vexation, by importunate office-seekers.

European writers on America used to be too much inclined to idealize the Senate. Admiring its structure and function, they have assumed that the actors must be worthy of their parts. They were encouraged in this tendency by the language of many Americans. As the Romans were never tired of repeating that the ambassador of Pyrrhus had called the Roman senate an assembly of kings, so Americans of refinement, who are ashamed of the turbulent House of Representatives, were at one time wont to talk of the Senate as an Olympian dwelling place of statesmen and sages. That it never was; and still less would anybody now so describe it. It is a company of shrewd and vigorous men who have fought their way to the front by the ordinary methods of American politics, and on many of whom the battle has left its stains. There are abundant opportunities for intrigue in the Senate, because its most important business is done in the secrecy of committee rooms or of executive session; and many senators are intriguers. There are opportunities for misusing senatorial powers. Scandals have sometimes arisen from the practice of employing as counsel before the Supreme Court, senators whose influence has contributed to the appointment or confirmation of the judges.6 There are opportunities for corruption and blackmailing, of which unscrupulous men are well known to take advantage. Such men are fortunately few; but considering how demoralized are the legislatures of a few states, their presence must be looked for; and the rest of the Senate, however it may blush for them, is obliged to work with them and to treat them as equals. The contagion of political vice is nowhere so swiftly potent as in legislative bodies, because you cannot taboo a man who has got a vote. You may loathe him personally, but he is the people’s choice. He has a right to share in the government of the country; you are grateful to himEdition: current; Page: [110] when he saves you on a critical division; you discover that “he is not such a bad fellow when one knows him”; people remark that he gives good dinners, or has an agreeable wife; and so it goes on till falsehood and knavery are covered under the cloak of party loyalty.

As respects ability, the Senate cannot be profitably compared with the English House of Lords, because that assembly consists of some thirty eminent and as many ordinary men attending regularly, with a multitude of undistinguished persons who rarely appear, and take no real share in the deliberations. Setting the Senate beside the House of Commons, the average natural capacity of its ninety-six members is not above that of the ninety-six best men in the English house. There is more variety of talent in the latter, and a greater breadth of culture. On the other hand, the Senate excels in legal knowledge as well as in practical shrewdness. The House of Commons contains more men who could give a good address on a literary or historical subject; the Senate together with a very few eminent lawyers, has more who could either deliver a rousing popular harangue or manage the business of a great trading company, these being the forms of capacity commonest among congressional politicians. An acute American observer said (writing in 1885) and the description is still true:

“The Senate is just what the mode of its election and the conditions of public life in this country make it. Its members are chosen from the ranks of active politicians, in accordance with a law of natural selection to which the State legislatures are commonly obedient; and it is probable that it contains, consequently, the best men that our system calls into politics. If these best men are not good, it is because our system of government fails to attract better men by its prizes, not because the country affords or could afford no finer material. The Senate is in fact, of course, nothing more than a part, though a considerable part, of the public service; and if the general conditions of that service be such as to starve statesmen and foster demagogues, the Senate itself will be full of the latter kind, simply because there are no others available.”7

This judgment is severe, but not unjust. Whether the senators of today are inferior in ability and integrity to those of seventy, forty, twenty years ago, is not easy to determine. But it must be admitted, however regretfully, that they are less independent, less respected by the people, less influential with the people, than were their predecessors; and their wealth, which has made them fear the reproach of wanting popular sympathies, may count for something in this decline.

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The place which the Senate holds in the constitutional system of America cannot be fully appreciated till the remaining parts of the system have been described. This much, however, may be claimed for it, that it has been and is still, though perhaps less than formerly, a steadying and moderating power. One cannot say, in the language of European politics, that it has represented aristocratic principles, or antipopular principles, or even conservative principles. Each of the great historic parties has in turn commanded a majority in it, and the difference between their strength has seldom been marked for any great while. On none of the great issues that have divided the nation has the Senate been, for any long period, decidedly opposed to the other house of Congress. It showed no more capacity than the House for grappling with the problems of slavery extension. It was scarcely less ready than the House to strain the Constitution by supporting Lincoln in the exercise of the so-called war powers, or subsequently by cutting down presidential authority in the struggle between Congress and Andrew Johnson, though it refused to convict him when impeached by the House. All the fluctuations of public opinion tell upon it, nor does it venture, any more than the House, to confront a popular impulse, because it is, equally with the House, subject to the control of the great parties, which seek to use while they obey the dominant sentiment of the hour.

But the fluctuations of opinion tell on it less energetically than on the House of Representatives. They reach it more slowly and gradually, owing to the system which renews it by one-third every second year, so that it sometimes happens that before the tide has risen to the top of the flood in the Senate it has already begun to ebb in the country. The Senate has been a stouter bulwark against agitation, not merely because a majority of the senators have always four years of membership before them, within which period public feeling may change, but also because the senators have been individually stronger men than the representatives. They are less democratic, not in opinion, but in temper, because they are more self-confident, because they have more to lose, because experience has taught them how fleeting a thing popular sentiment is, and how useful a thing continuity in policy is. The Senate has therefore usually kept its head better than the House of Representatives. It has expressed more adequately the judgment, as contrasted with the emotion, of the nation; and at least since 1896 it has been the body to which property and the financial powers chiefly look for support. In this sense it does constitute a “check and balance” in the federal government. Of the three great functions which the Fathers of the Constitution meant it to perform, the first, that of securing the rights of the smaller states, is noEdition: current; Page: [112] longer important; while the second, that of advising or controlling the executive in appointments as well as in treaties, has given rise to evils possibly commensurate with its benefits. But the third duty is still well discharged, for “the propensity of a single and numerous assembly to yield to the impulse of sudden and violent passions” is frequently, though not invariably, restrained.

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chapter 13

The House of Representatives

The House of Representatives, usually called for shortness, the House, represents the nation on the basis of population, as the Senate represents the states.

But even in the composition of the House the states play an important part. The Constitution provides1 that “representatives and direct taxes shall be apportioned among the several states according to their respective numbers,” and under this provision Congress allots so many members of the House to each state in proportion to its population at the last preceding decennial census, leaving the state to determine the districts within its own area for and by which the members shall be chosen. These districts are now equal or nearly equal in size; but in laying them out there is ample scope for the process called “gerrymandering,” 2 which the dominant party in a state rarely fails to apply for its own advantage. Where a state legislatureEdition: current; Page: [114] has failed to redistribute the state into congressional districts, after the state has received an increase of representatives, the additional member or members are elected by the voters of the whole state on a general ticket, and are called “representatives at large.” Recently one state (Maine) elected all its representatives on this plan, while another (Kansas) elected three by districts and four by general ticket. Each district, of course, lies wholly within the limits of one state. When a seat becomes vacant the governor of the state issues a writ for a new election, and when a member desires to resign his seat he does so by letter to the governor.

The original House which met in 1789 contained only 65 members, the idea being that there should be one member for every 30,000 persons. As population grew and new states were added, the number of members was increased. Originally Congress fixed the ratio of members to population, and the House accordingly grew; but latterly, fearing a too rapid increase, it has fixed the number of members with no regard for any precise ratio of members to population. Under a statute of 1891, the number was fixed at 356, being, according to the census of 1890, one member to about 174,000 souls. In 1909, the number had reached 391. In 1911, under the census of 1910, it was increased to 435. Five states, Delaware, Nevada, Wyoming, Arizona, New Mexico, have one representative each; five have two each; while New York has 43, and Pennsylvania 36. Besides these full members there are also Territorial delegates, one from each of the Territories, regions enjoying a species of self-government, but not yet formed into states.3 These delegates sit and speak, but have no right to vote, being unrecognized by the Constitution. They are, in fact, merely persons whom the House, under a statute, admits to its floor and permits to address it.

The quorum of the House, as of the Senate, is a majority of the whole number. Till the Fifty-first Congress the custom had been to treat as absent all members who did not answer to their names on a roll call, but in 1890, one party persistently refusing to answer in order to prevent the transaction of business, Speaker Reed asserted the right of counting for the purposes of a quorum all he saw present. A rule was then passed directing him so to count. This was dropped in the next Congress but in 1894 restored, substituting two tellers for the Speaker.

The electoral franchise on which the House is elected is for each state the same as that by which the members of the more numerous branch of the state legislature are chosen. Originally franchises varied much in differentEdition: current; Page: [115] states; and this was a principal reason why the Convention of 1787 left the matter to the states to settle: now what is practically manhood (which in five states includes womanhood) suffrage prevails in the Northern and Western states. A state, however, has a right of limiting the suffrage as it pleases, and many states do exclude persons convicted of crime, paupers, illiterates, etc. By the Fifteenth Amendment to the Constitution (passed in 1870) “the right of citizens of the United States to vote shall not be denied or abridged by any State on account of race, colour, or previous condition of servitude,” while by the Fourteenth Amendment (passed in 1868) “the basis of representation in any State is reduced in respect of any male citizens excluded from the suffrage, save for participation in rebellion or other crimes.” This was designed to give the former slave states a motive for keeping their suffrage wide, but the fact remains that the franchise by which the federal legislature is chosen may differ, and does in some points actually differ in different parts of the Union.4

Members are elected for two years, and the election always takes place in the even years, 1912, 1914, and so forth. Thus the election of every second Congress coincides with that of a president; and admirers of the Constitution find in this arrangement another of their favourite “checks,” because while it gives the incoming president a Congress presumably, though by no means necessarily, of the same political complexion as his own, it enables the people within two years to express their approval or disapproval of his conduct by sending up another House of Representatives which may support or oppose the policy he has followed. The House does not in the regular course of things meet until a year has elapsed from the time when it has been elected, though the president may convoke it sooner, i.e, a House elected in November 1914 will not meet till December 1915, unless the president summons it in “extraordinary session” some time after March 4, 1915, when the previous House expires. This summons has been issued fifteen times since 1789. It so often brought ill luck to the summoning president that a sort of superstition against it grew.5 The question is often mooted whether a new Congress ought not by law to meet within six monthsEdition: current; Page: [116] after its election, for there are inconveniences in keeping an elected House unorganized and Speakerless for a twelvemonth. But the country is not so fond of Congress as to desire more of it. It is a singular result of the present arrangement that the old House continues to sit for nearly four months after the members of the new House have been elected, and that a measure may still be passed in the expiring Congress, against which the country has virtually pronounced at the general elections already held for its successor. In the Fifty-first Congress the House voted more than five-hundred millions of dollars in its appropriation bills after a new Congress had been elected, and when therefore it had in strictness no longer any constituents.

The expense of an election varies greatly from district to district. Sometimes, especially in great cities where illegitimate expenditure is more frequent and less detectible than in rural districts, it rises to a sum of $10,000 or more; sometimes it is trifling.6 No estimate of the average can be formed, because no returns of congressional election expenses are required by law; but as a rule a seat costs less than one for a county division does in England.7 A candidate, unless very wealthy, is not expected to pay the whole expense out of his own pocket, but is aided often by the local contributions of his friends, sometimes by a subvention from the election funds of the party in the state. All the official expenses, such as for clerks, polling booths, etc., are paid by the public. Although bribery is not rare, comparatively few elections are impeached, for the difficulty of proof is increased by the circumstance that the House, which is the investigating and deciding authority, does not meet till a year after the election. As a member is elected for two years only, and the investigation would probably drag on during the whole of the first session, it is scarcely worth while to dispute the return for the sake of turning him out for the second session.8 In many states, drinking places are closed on the election day.

Among the members of the House there are few young men, and stillEdition: current; Page: [117] fewer old men. The immense majority are between forty and sixty. Lawyers abound, including in that term both those who in Great Britain are called barristers or advocates, and those who are called attorneys, there being in America no distinction between these two branches of the profession. An analysis of the House in the Fiftieth Congress showed that 203 members, or nearly two-thirds of the whole number, had been trained or had practiced as lawyers, and in subsequent Congresses the proportions have varied but little. In the Sixty-first the proportion of lawyers was slightly larger, especially among Southern members. Of course many of these had practically dropped law as a business and given themselves wholly to politics. Next in number come the men engaged in manufactures or commerce, in agriculture, or banking, or journalism, but no one of these occupations counted one-third so many members.9 Ministers of religion are very rare; there were, however, two in the Fifty-second Congress. No military or naval officer, and no person in the civil service of the United States, can sit. Scarcely any of the great railway men go into Congress, a fact of much significance when one considers that they are really the most powerful people in the country; and of the numerous lawyer members very few are leaders of the bar in their respective states. The reason is the same in both cases. Residence in Washington makes practice at the bar of a great city difficult or impossible, and men in lucrative practice would not generally sacrifice their profession in order to sit in the House, while railway managers or financiers are too much engrossed by their business to be able to undertake the duties of a member. The absence of railway men by no means implies the absence of railway influence, for it is as easy for a company to influence legislation from without Congress as from within.

Most members, including nearly all Western men, have received their early education in the common schools, but rather more than one-half of the whole number have also graduated in a university or college. This does not necessarily mean what it would mean in Europe, for some of the smaller colleges are no better than English grammar schools and not as good as German gymnasia. It is noticeable that in the accounts of their career which members prepare for the pages of the Congressional Directory, they usually dwell upon the fact of their graduation, or state that they have “received anEdition: current; Page: [118] academic education.” 10 Less than half have served in the legislature of their own state. In the Sixty-second Congress (1911–13) 128 out of 394 had sat in a state legislature. Not many are wealthy, and few are very poor, while hardly any were at the time of their election working men. Of course no one could be a working man while he sits, for he would have no time to spare for his trade, and the salary would more than meet his wants. Nothing prevents an artisan from being returned to Congress, but there seems little disposition among the working classes to send one of themselves;11 and the nomination system interposes obstacles to their standing as candidates of either of the great parties, though they sometimes stand as Labour men or Socialists.

A member of the House enjoys the title of Honourable, which is given to him not merely within the House (as in England), but in the world at large, as for instance in the addresses of his letters. As he shares it with members of state senates, all the higher officials, both federal and state, and judges, the distinction is not deemed a high one.

The House has no share in the executive functions of the Senate, nothing to do with confirming appointments or approving treaties. On the other hand, it has the exclusive right of initiating revenue bills and of impeaching officials, features borrowed, through the state constitutions, from the English House of Commons, and of choosing a president in case there should be no absolute majority of presidential electors for any one candidate. This very important power it exercised in 1801 and 1825.12

Setting extraordinary sessions aside, every Congress has two sessions, distinguished as the first or long and the second or short. The long session begins in the fall of the year after the election of a Congress, and continues, with a recess at Christmas, till the July or August following. The short session begins in the December after the July adjournment, and lasts till the 4th of March following. The whole working life of a House is thus from ten to twelve months. Bills do not, as in the English Parliament, expire at the end of each session; they run on from the long session to the short one. All however that have not been passed when the fatal 4th March arrives perish forthwith, for the session being fixed by statute cannot be extendedEdition: current; Page: [119] at pleasure.13 There is consequently a terrible scramble to get business pushed through in the last week or two of a Congress. Sometimes the clock of the House is put back in order to enable the Speaker who faces it to allow business to be taken after the true noon has been passed on the last day. I have seen this done openly amid the merriment of the House and the galleries.

The House usually meets at noon, and sits till four or six o’clock, though towards the close of a session these hours are lengthened. Occasionally when obstruction occurs, or when at the very end of a session messages are going backwards and forwards between the House, the Senate, and the president, it sits all night long.

The usages and rules of procedure of the House, which differ in many respects from those of the Senate, are too numerous to be described here. I will advert only to a few points of special interest, choosing those which illustrate American political ideas or bring out the points of likeness and unlikeness between Congress and the English Parliament.

An oath or affirmation of fidelity to the Constitution of the United States is (as prescribed by the Constitution) taken by all members;14 also by the clerk, the sergeant-at-arms, the doorkeeper, and the postmaster.

The sergeant-at-arms is the treasurer of the House, and pays to each member his salary and mileage. He has the custody of the mace, and the duty of keeping order, which in extreme cases he performs by carrying the mace into a throng of disorderly members. This symbol of authority, which (as in the House of Commons) is moved from its place when the House goes into committee, consists of the Roman fasces, in ebony, bound with silver bands in the middle and at the ends, each rod ending in a spear head, at the other end a globe of silver, and on the globe a silver eagle ready for flight. English precedent suggests the mace, but as it could not be surmounted by a crown, Rome has prescribed its design.

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The proceedings each day begin with prayers, which are conducted by a chaplain who is appointed by the House, not (as in England) by the Speaker, and who may, of course, be selected from any religious denomination. Lots are drawn for seats at the beginning of the session, each member selecting the place he pleases according as his turn arrives. Although the Democrats are mostly to the Speaker’s right hand, members cannot, owing to the arrangement of the chairs, sit in masses palpably divided according to party, a circumstance which deprives invective of much of its dramatic effect. One cannot, as in England, point the finger of scorn at “hon. gentlemen opposite.” Every member is required to remain uncovered in the House.

A member addresses the Speaker and the Speaker only, and refers to another member not by name but as the “gentleman from Pennsylvania,” or as the case may be, without any particular indication of the district which the person referred to represents. As there are thirty-six gentlemen from Pennsylvania, and the descriptives used in the English House of Commons (learned, gallant, right honourable) are not in use, facilities for distinguishing the member intended are not perfect. A member usually speaks from his seat, but many speak from the clerk’s desk or from a spot close to the Speaker’s chair. A rule (often disregarded) forbids anyone to pass between the Speaker and the member speaking, a curious bit of adherence to English usage.

Divisions were originally (rule of 17th April 1789) taken by going to the right and left of the chair, according to the old practice of the English House of Commons.15 This having been found inconvenient, a resolution of 9th June 1789 established the present practice, whereby members rise in their seats and are counted in the first instance by the Speaker, but if he is in doubt, or if a count be required by one-fifth of those present (which cannot be less than one-tenth of the whole House), then by two tellers named by the Speaker, between whom, as they stand in the middle gangway, members pass. When a call of yeas and nays is so demanded, the clerk calls the full roll of the House and each member answers aye or no to his name or says “ no vote. ” When the whole roll has been called, it is called over a second time to let those vote who have not voted in the first call. Members may now change their votes. Those who have entered the House after their namesEdition: current; Page: [121] were passed on the second call cannot vote, but often take the opportunity of rising to say that they would, if then present in the House, have voted for (or against) the motion. All this is set forth in the Congressional Record, which also contains a list of the members not voting and of the pairs.

A process which consumes so much time, for it may take more than an hour to call through the names, is an obvious and effective engine of obstruction. It is frequently so used, for it can be demanded not only on questions of substance, but on motions to adjourn. This is a rule which the House cannot alter, for it rests on an express provision of the Constitution, art. I, § 5.

No one may speak more than once to the same question, unless he be the mover of the motion pending, in which case he is permitted to reply after every member choosing to speak has spoken. This rule is however frequently broken.

Speeches are limited to one hour, subject to a power to extend this time by unanimous consent, and may, in Committee of the Whole House, be limited to five minutes. So far as I could learn, this hour rule works very well, and does not tend to bring speeches up to that length as a regular thing. A member is at liberty to give part of his time to other members, and this is in practice constantly done. The member speaking will say: “I yield the floor to the gentleman from Ohio for five minutes,” and so on. Thus a member who has once secured the floor has a large control of the debate.

The great remedy against prolix or obstructive debate is the so-called previous question, which is moved in the form, “Shall the main question be now put?” and when ordered closes forthwith all debate, and brings the House to a direct vote on that main question.16 On the motion for the putting of the main question no debate is allowed; but it does not destroy the right of the member “reporting the measure under consideration” from a committee, to wind up the discussion by his reply. This closure of the debate may be moved by any member without the need of leave from the Speaker, and requires only a bare majority of those present. When directed by the House to be applied in committee, for it cannot be moved after the House has gone into committee, it has the effect of securing five minutes to the mover of any amendment, and five minutes to the member who first “obtains the floor” (gets the chance of speaking) in opposition to it, permitting no oneEdition: current; Page: [122] else to speak. A member in proposing a resolution or motion usually asks at the same time for the previous question upon it, so as to prevent it from being talked out.

Closure by previous question, first established in 1811, is in almost daily use, and is considered so essential to the progress of business that I never found any member or official who thought it could be dispensed with. Even the senators, who object to its introduction into their own much smaller chamber, agree that it must exist in a large body like the House. That it is not much abused is attributed to the fear of displeasing the people, and to the sentiment within the House itself in favour of full and fair discussion, which sometimes induces the majority to refuse the previous question when demanded by one of their own party, or on behalf of a motion which they are as a whole supporting. “No one,” I was assured, “who is bona fide discussing a subject in a sensible way would be stopped by the application of the previous question. On the other hand we should never get appropriation bills through without it.”

Notwithstanding this powerful engine for expediting business, obstruction, or, as it is called in America, filibustering, is by no means unknown. It is usually practised by making repeated motions for the adjournment of a debate, or for “taking a recess” (suspending the sitting), or for calling the yeas and nays. Between one such motion and another some business must intervene, but as the making of a speech is “business,” there is no difficulty in complying with this requirement. No speaking is permitted on these obstructive motions, yet by them time may be wasted for many continuous hours, and if the obstructing minority is a strong one, it generally succeeds, if not in defeating a measure, yet in extorting a compromise. It must be remembered that owing to the provision of the Constitution above mentioned, the House is in this matter not sovereign even over its own procedure. That rules are not adopted, as they might be, which would do more than the present system does to extinguish filibustering, is due partly to this provision, partly to the notion that it is prudent to leave some means open by which a minority can make itself disagreeable, and to the belief that adequate checks exist on any gross abuse of such means.17 These checks are two. One is the fact that filibustering will soon fail unless conducted by nearly the whole of the party which happens to be in a minority, and that so large a section of the House will not be at the trouble of joining in it unless upon some reallyEdition: current; Page: [123] serious question. Some few years ago, seventeen or eighteen members tried to obstruct systematically a measure they objected to, but their number proved insufficient, and the attempt failed. But at an earlier date, during the Reconstruction troubles which followed the war, the opposition of the solid Democratic party, then in a minority, succeeded in defeating a bill for placing five of the Southern states under military government. The other check is found in the fear of popular disapproval. If the nation sees public business stopped and necessary legislation delayed by factious obstruction, it will visit its displeasure both upon the filibustering leaders individually, and on the whole of the party compromised. However hot party spirit may be, there is always a margin of moderate men in both parties whom the unjustifiable use of legally permissible modes of opposition will alienate. Since such men can make themselves felt at the polls when the next election arrives, respect for their opinion cools the passion of congressional politicians. Thus the general feeling is that as the power of filibustering is in extreme cases a safeguard against abuses of the system of closure by “previous question,” so the good sense of the community is in its turn a safeguard against abuses of the opportunities which the rules still leave open. One ex-Speaker, who had had large experience in leading both a majority and a minority of the House, observed to me that he thought the rules, taken all in all, as near perfection as any rules could be. This savours of official optimism. We all know the attachment which those who have grown old in working a system show to its faults as well as to its merits. Still, true is it that congressmen generally complain less of the procedure under which they live, and which seems to an English observer tyrannical, than do members of the English House of Commons of the less rigid methods of their own ancient and famous body. I know no better instance of the self-control and good humour of Americans than the way in which the minority in the House generally submit to the despotism of the majority, consoling themselves with the reflection that it is all according to the rules of the game, and that their turn will come in due course. To use the power of closing debate as stringently at Westminster as it is used at Washington would revolutionize the life of the House of Commons.18 But the House of Representatives is an assembly of a very different nature. Like the House of Commons it is a legislating, if hardly to be deemed a governing, body. But it is not a debating body. It rules through and by its committees, in which discussion isEdition: current; Page: [124] unchecked by any closing power; and the whole House does little more than register by its votes the conclusions which the committees submit. One subject alone, the subject of revenue, that is to say, taxation and appropriation, receives genuine discussion by the House at large. And although the power of limiting debate is often applied to expedite such business, it is seldom applied till opportunity has been given for the expression of all relevant views.

The rules regarding the procedure in Committee of the Whole House are in the main similar to those of the British House of Commons; but the chairman of such a committee is not (as usually in England) a permanent chairman of Ways and Means, but a person nominated by the Speaker on each occasion. A rule, not duly observed, forbids any member to speak twice to any question, until every member desiring to speak shall have spoken.19

The House has a power of going into secret session whenever confidential communications are received from the president, or a member informs it that he has communications of a secret nature to make. But this power, though employed in early days, is now in disuse. Every word spoken is reported by official stenographers and published in the Congressional Record, and the huge galleries are never cleared.

The number of bills brought into the House every year is very large, and has steadily increased. In the Thirty-seventh Congress (1861–63) the total number of bills introduced was 1,026, viz., 613 House bills, and 433 Senate bills. In the Fifty-first Congress (1889–91) the number had risen further, to 19,646 (including joint resolutions), of which 14,328 were introduced in the House, 5,318 in the Senate.20 In the Sixty-second there had been a further rise, for the bills and joint resolutions introduced in the House reached about 29,000, and those in the Senate approached 9,000. In the British House of Commons the number of public bills introduced was, in the session of 1892, 335 (20 of which had come from the Lords), besides 80 provisional order bills. In 1908 the total number of bills of all kinds introduced was 482, of which 297 were public bills, 56 provisional order bills, and 127 private bills. America is, of course, a far larger country, and more than twice as populous, but the legislative competence of Congress is incomparably smaller than that of the British Parliament, seeing that the chief part of the field both of public bill and private bill legislation belongsEdition: current; Page: [125] in America to the several states. By far the larger number of bills in Congress are what would be called in England “private” or “local and personal” bills, i.e., they establish no general rule of law but are directed to particular cases. Such are the numerous bills for satisfying persons with claims against the federal government, and for giving or restoring pensions to individuals alleged to have served in the Northern armies during the War of Secession. It is only to a very small extent that bills can attempt to deal with ordinary private law, since most of that topic belongs to state legislation. The proportion of bills that pass to bills that fail is a very small one, not one-thirtieth.21 As in England so even more in America, bills are lost less by direct rejection than by failing to reach their third reading, a mode of exinction which the good nature of the House, or the unwillingness of its members to administer snubs to one another, would prefer to direct rejection, even were not the want of time a sufficient excuse to the committees for failing to report them. One is told in Washington that few bills are brought in with a view to being passed. They are presented in order to gratify some particular persons or places, and it is well understood in the House that they must not be taken seriously. Sometimes a less pardonable motive exists. The great commercial corporations, and especially the railroad companies, are often through their land grants and otherwise brought into relations with the federal government. Bills are presented in Congress which purport to withdraw some of the privileges of these companies, or to establish or favour rival enterprises, but whose real object is to levy blackmail on these wealthy bodies, since it is often cheaper for a company to buy off its enemy than to defeat him either by the illegitimate influence of the lobby, or by the strength of its case in open combat. Several great corporations have thus to maintain a permanent staff at Washington for the sake of resisting legislative attacks upon them, some merely extortionate, some intended to win local popularity.

The title and attributions of the Speaker of the House are taken from his famous English original. But the character of the office has greatly altered from that original. The note of the Speaker of the British House of Commons is his impartiality. He has indeed been chosen by a party, because a majority means in England a party. But on his way from his place on the benches toEdition: current; Page: [126] the chair he is expected to shake off and leave behind all party ties and sympathies. Once invested with the wig and gown of office he has no longer any political opinions, and must administer exactly the same treatment to his political friends and to those who have been hitherto his opponents, to the oldest or most powerful minister and to the youngest or least popular member. His duties are limited to the enforcement of the rules and generally to the maintenance of order and decorum in debate, including the selection, when several members rise at the same moment, of the one who is to carry on the discussion. These are duties of great importance, and his position one of great dignity, but neither the duties nor the position imply political power. It makes little difference to any English party in Parliament whether the occupant of the chair has come from their own or from the hostile ranks. The Speaker can lower or raise the tone and efficiency of the House as a whole by the way he presides over it; but a custom as strong as law forbids him to render help to his own side even by private advice. Whatever information as to parliamentary law he may feel free to give must be equally at the disposal of every member.

In America the Speaker has immense political power, and is permitted, nay expected, to use it in the interests of his party. At one time he ruled and led almost as Rouher led and ruled the French Chamber under Louis Napoleon. In calling upon members to speak he prefers those of his own side. He decides in their favour such points of order as are not distinctly covered by the rules. His authority over the arrangement of business is so large that he can frequently advance or postpone particular bills or motions in a way which determines their fate. One much respected Speaker once went the length of intimating that he would not allow a certain bill, to which he strongly objected, to be so much as presented to the House; and this he could do by refusing to recognize the member desiring to present it. Although the Speaker seldom delivers a speech in the House, he may and does advise the other leaders of his party privately; and when they “go into caucus” (i.e., hold a party meeting to determine their action on some pending question) he is present and gives counsel. He is usually the most eminent member of the party who has a seat in the House, and is really, so far as the confidential direction of its policy goes, almost its leader. His most important privilege is, however, the nomination of the numerous standing committees already referred to. In the first Congress (April 1789) the House tried the plan of appointing its committees by ballot; but this worked so ill that in January 1790 the following rule was passed: “All committees shall be appointed by the Speaker unless otherwise specially directed by theEdition: current; Page: [127] House.” This rule has been readopted by each successive Congress since then.22 Not only does he, at the beginning of each Congress, select all the members of each of these committees, he even chooses the chairman of each, and thereby vests the direction of its business in hands approved by himself.23 The chairman is of course always selected from the party which commands the House, and the committe is so composed as to give that party a majority. Since legislation, and so much of the control of current administration as the House has been able to bring within its grasp, belong to these committees, their composition practically determines the action of the House on all questions of moment, and as the chairmanships of the more important committees are the posts of most influence, the disposal of them is a tremendous piece of patronage by which a Speaker can attract support to himself and his own section of the party, reward his friends, give politicians the opportunity of rising to distinction or practically extinguish their congressional career. The Speaker is, of course, far from free in disposing of these places. He has been obliged to secure his own election to the chair by promises to leading members and their friends; and while redeeming such promises, he must also regard the wishes of important groups of men or types of opinion, must compliment particular states by giving a place on good committees to their prominent representatives, must avoid nominations which could alarm particular interests. These conditions surround the exercise of his power with trouble and anxiety. Yet after all it is power, power which in the hands of a capable and ambitious man was from 1890 to 1910 so far-reaching that it was then no exaggeration to call him the second political figure in the United States, with an influence upon the fortunes of men and the course of domestic events superior, in ordinary times and in capable hands, to the president’s, although shorter in its duration and less patent to the world.24 His authority has now been reduced, but it is still great, and may regain its former extension.

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The choice of a Speaker is therefore a political event of much significance; and the whole policy of a Congress sometimes turns upon whether the man selected represents one or another of two divergent tendencies in the majority. The distribution of members among the committees, which used to be left to him, but is now in the hands of a committee of the majority, is a critical point in the history of a Congress, and one which is watched with keen interest. As the chairmanships of the chief committees are posts of great significance forming a sort of second set of ministerial office, and as they may be compared to the cabinet offices of Europe, so the Speaker is himself a great party leader as well as the president of a deliberative assembly.

Although expected to serve his party in all possible directions, he must not resort to all possible means. Both in the conduct of debate and in the formation of committees a certain measure of fairness to opponents is required from him. He must not palpably wrest the rules of the House to their disadvantage, though he may decide all doubtful points against them. He must give them a reasonable share of “the floor” (i.e., of debate). He must concede to them proper representation on committees.

The dignity of the Speaker’s office is high. He receives $12,000 a year. In rank he stands next after the vice-president and on a level with the justices of the Supreme Court. Washington society was once agitated by a claim of his wife to take precedence over the wives of these judges, a claim so ominous in a democratic country that efforts were made to have it adjusted without a formal decision.

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the national government The House at Work fpage="129" lpage="139"
chapter 14

The House at Work

An Englishman expects to find his House of Commons reproduced in the House of Representatives. He has the more reason for this notion because he knows that the latter was modelled on the former, has borrowed many of its rules and technical expressions, and regards the procedure of the English chamber as a storehouse of precedents for its own guidance.1 The notion is delusive. Resemblances of course there are. But an English parliamentarian who observes the American House at work is more impressed by the points of contrast than by those of similarity. The life and spirit of the two bodies are wholly different.

The room in which the House meets is in the south wing of the Capitol, the Senate and the Supreme Court being lodged in the north wing. It is more than thrice as large as the English House of Commons, with a floor about equal in area to that of Westminster Hall, 139 feet long by 93 feet wide and 36 feet high. Light is admitted through the ceiling. There are on all sides deep galleries running backwards over the lobbies, and capable of holding two thousand five hundred persons. The proportions are so good that it is not till you observe how small a man looks at the farther end, and how faint ordinary voices sound, that you realize its vast size. The seats are arranged in curved concentric rows looking towards the Speaker, whoseEdition: current; Page: [130] handsome marble chair is placed on a raised marble platform projecting slightly forward into the room, the clerks and the mace below in front of him, in front of the clerks the official stenographers, to the right the seat of the sergeant-at-arms. Each member has a revolving armchair, and had till 1913 a roomy desk in front of it, where he wrote and kept his papers. Behind these chairs runs a railing, and behind the railing is an open space into which some classes of strangers may be brought, where sofas stand against the wall, and where smoking is occasionally practiced, even by strangers, though the rules forbid it.

When you enter, your first impression is of noise and turmoil, a noise like that of short sharp waves in a Highland loch, fretting under a squall against a rocky shore. The scratching of pens, the clapping of hands to call the pages, keen little boys who race along the gangways, the pattering of many feet, the hum of talking on the floor and in the galleries, make up a din over which the Speaker with the sharp taps of his hammer, or the orators straining shrill throats, find it hard to make themselves audible. Nor is it only the noise that gives the impression of disorder. Often three or four members are on their feet at once, each shouting to catch the Speaker’s attention. Others, tired of sitting still, rise to stretch themselves, while the Western visitor, long, lank, and imperturbable, leans his arms on the railing, chewing his cigar, and surveys the scene with little reverence. Less favourable conditions for oratory cannot be imagined, and one is not surprised to be told that debate was more animated and practical in the much smaller room which the House formerly occupied.

Not only is the present room so big that only a powerful and well-trained voice can fill it, but the desks and chairs make a speaker feel as if he were addressing furniture rather than men, while of the members few seem to listen to the speeches. It is true that they sit in the House instead of running out into the lobbies as people do in the British House of Commons, but they are more occupied in talking or writing, or reading newspapers, than in attending to the debate. To attend is not easy, for only a shrill voice can overcome the murmurous roar; and one sometimes finds the newspapers in describing an unusually effective speech, observe that “Mr. So-and-So’s speech drew listeners about him from all parts of the House.” They could not hear him where they sat, so they left their places to crowd in the gangways near him. “Speaking in the House,” said an American writer, “is like trying to address the people in the Broadway omnibuses from the kerbstone in front of the Astor House. . . . Men of fine intellect and ofEdition: current; Page: [131] good ordinary elocution have exclaimed in despair that in the House of Representatives the mere physical effort to be heard uses up all the powers, so that intellectual action becomes impossible. The natural refuge is in written speeches or in habitual silence, which one dreads more and more to break.”

It is hard to talk calm good sense at the top of your voice, hard to unfold a complicated measure. A speaker’s vocal organs react upon his manner, and his manner on the substance of his speech. It is also hard to thunder at an unscrupulous majority or a factious minority when they do not sit opposite to you, but beside you, and perhaps too much occupied with their papers to turn round and listen to you. The Americans think this an advantage, because it prevents scenes of disorder. They may be right; but what order gains oratory loses. The desks encouraged inattention by enabling men to write their letters; but though nearly everybody agreed that they would be better away, it was not till 1913 that they were removed. At the same time benches were substituted for the comfortable swinging chairs which invited members to loll at ease or doze comfortably during dull debates. The members are thus brought closer together, but the size of the hall was not reduced. So too the huge galleries add to the area the voice has to fill; but the public like them, and might resent a removal to a smaller room. It is surprising to see how well filled the galleries sometimes remain through a succession of dull speeches. The smoking shocks an Englishman, but not more than the English practice of wearing hats in both houses of Parliament shocks an American. Interruptions, and interjected remarks, are not more frequent—when I have been present they seemed to be much less frequent—than in the House of Commons. Applause is given more charily, as is usually the case in America. Instead of “Hear, hear,” there is a clapping of hands and hitting of desks. Applause is sometimes given from the galleries; and occasionally at the end of a session both the members below and the strangers in the galleries above have been known to join in singing some popular ditty. I have heard a whistling solo extremely well given.

There is little good speaking. I do not mean merely that fine oratory, oratory which presents valuable thoughts in eloquent words, is rare, for it is rare in all assemblies. But in the House of Representatives a set speech upon any subject of importance tends to become not an exposition or an argument but a piece of elaborate and high-flown declamation. Its author is often wise enough to send direct to the reporters what he has written out, having read aloud a small part of it in the House. When it has been printedEdition: current; Page: [132] in extenso in the Congressional Record (leave to get this done being readily obtained) he has copies struck off and distributes them among his constituents. Thus everybody is pleased and time is saved.2

That there is not much good business debating, by which I mean a succession of comparatively short speeches addressed to a practical question, and hammering it out by the collision of mind with mind, arises not from any want of ability among the members, but from the unfavourable conditions under which the House acts. Most of the practical work is done in the standing committees, while much of the House’s time is consumed in pointless discussions, where member after member delivers himself upon large questions, not likely to be brought to a definite issue. Many of the speeches thus called forth have a value as repertories of facts, but the debate as a whole is unprofitable and languid. On the other hand the five-minute debates which take place, when the House imposes that limit of time, in Committee of the Whole on the consideration of a bill reported from a standing committee, are often lively, pointed, and effective. The topics which excite most interest and are best discussed are those of taxation and the appropriation of money, more particularly to public works, the improvement of rivers and harbours, erection of federal buildings, and so forth. This kind of business is indeed to most of its members the chief interest of Congress, the business which evokes the finest skill of a tactician and offers the severest temptations to a frail conscience. As a theatre or school either of political eloquence or political wisdom, the House has been inferior not only to the Senate but to most European assemblies. Nor does it enjoy much consideration at home. Its debates are very shortly reported in the Washington papers as well as in those in Philadelphia and New York. They are not widely read except in very exciting times, and do little to instruct or influence public opinion.

This is of course only one part of a legislature’s functions. An assembly may despatch its business successfully and yet shine with few lights of genius. But the legislation on public matters which the House turns out is scanty in quantity and generally mediocre in quality. What is more, the House tends to avoid all really grave and pressing questions, skirmishing round them, but seldom meeting them in the face or reaching a decision which marks an advance. If one makes this observation to an American, he replies that at this moment there are few such questions lying within theEdition: current; Page: [133] competence of Congress, and that in his country representatives must not attempt to move faster than their constituents. This latter remark is eminently true; it expresses a feeling which has gone so far that Congress conceives its duty to be to follow and not to seek to lead public opinion. The harm actually suffered so far is not grave. But the European observer cannot escape the impression that Congress might fail to grapple with a serious public danger, and is at present hardly equal to the duty of guiding and instructing the political intelligence of the nation.

In all assemblies one must expect abundance of unreality and pretence, many speeches obviously addressed to the gallery, many bills meant to be circulated but not to be seriously proceeded with. However, the House seems to indulge itself more freely in this direction than any other chamber of equal rank. Its galleries are large, holding two thousand five hundred persons. But it talks and votes, I will not say to the galleries, for the galleries cannot hear it, but as if every section of American opinion was present in the room. It adopts unanimously resolutions which perhaps no single member in his heart approves of, but which no one cares to object to, because it seems not worth while to do so. This habit sometimes exposes it to a snub, such as that administered by Bismarck in the matter of the resolution of condolence with the German Parliament on the death of Lasker, a resolution harmless indeed, but so superfluous as to be almost obtrusive. A practice unknown to Europeans is of course misunderstood by them, and sometimes provokes resentment. Bills are frequently brought into the House proposing to effect impossible objects by absurd means, which astonish a visitor, and may even cause disquiet in other countries, while few people in America notice them, and no one thinks it worth while to expose their emptiness. American statesmen keep their pockets full of the loose cash of empty compliments and pompous phrases, and become so accustomed to scatter it among the crowd that they are surprised when a complimentary resolution or electioneering bill, intended to humour some section of opinion at home, is taken seriously abroad. The House is particularly apt to err in this way, because having no responsibility in foreign policy, and little sense of its own dignity, it applies to international affairs the habits of election meetings.

Watching the House at work, and talking to the members in the lobbies, an Englishman naturally asks himself how the intellectual quality of the body compares with that of the House of Commons. His American friends have prepared him to expect a marked inferiority. They are fond of running down congressmen. The cultivated New Englanders and New Yorkers doEdition: current; Page: [134] this out of intellectual fastidiousness, and in order to support the role which they unconsciously fall into when talking to Europeans. The rougher Western men do it because they would not have congressmen either seem or be better in any way than themselves, since that would be opposed to republican equality. A stranger who has taken literally all he hears is therefore surprised to find so much character, shrewdness, and keen though limited intelligence among the representatives. Their average business capacity did not seem to me below that of members of the House of Commons. True it is that great lights, such as usually adorn the British Chamber, are absent; true also that there are fewer men who have received a high education which has developed their tastes and enlarged their horizons. The want of such men seriously depresses the average. It is raised, however, by the almost total absence of two classes hitherto well represented in the British Parliament, the rich, dull parvenu, who has bought himself into public life, and the perhaps equally unlettered young sporting or fashionable man who, neither knowing nor caring anything about politics, has come in for a county or (before 1885) a small borough, on the strength of his family estates. Few congressmen sink to so low an intellectual level as these two sets of persons, for congressmen have almost certainly made their way by energy and smartness, picking up a knowledge of men and things “all the time.” In respect of width of view, of capacity for penetrating thought on political problems, representatives are scarcely above the class from which they came, that of second-rate lawyers or farmers, less often merchants or petty manufacturers. They do not pretend to be statesmen in the European sense of the word, for their careers, which have made them smart and active, have given them little opportunity for acquiring such capacities. As regards manners they are not polished, because they have not lived among polished people; yet neither are they rude, for to get on in American politics one must be civil and pleasant. The standard of parliamentary language, and of courtesy generally, has been steadily rising during the last few decades; and scenes of violence and confusion such as occasionally convulse the French Chamber, and were common in Washington before the War of Secession, are now rare.

On the whole, the most striking difference between the House of Representatives and European popular assemblies is its greater homogeneity. The type is marked; the individuals vary little from the type. In Europe all sorts of persons are sucked into the vortex of the legislature—nobles and landowners, lawyers, physicians, businessmen, artisans, journalists, men of learning, men of science. In America five representatives out of six are politicians pure and simple, members of a class as well defined as anyoneEdition: current; Page: [135] of the above-mentioned European classes. The American people, though it is composed of immigrants from every country and occupies a whole continent, tends to become more uniform than most of the great European peoples; and this characteristic is palpable in its legislature.

Uneasy lies the head of an ambitious congressman,3 for the chances are almost even that he will lose his seat at the next election. It was observed in 1788 that half of the members of each successive state legislature were new members, and this average was long maintained in the federal legislature, rather less than half keeping their seats from one Congress to the next. In recent years reelection has grown more frequent, and in the Sixty-first Congress (1909–11), only 74 members out of 391 had not served before. Sixteen members had served during nine or more previous terms, i.e., for eighteen years or more. In England the proportion of members reelected from Parliament to Parliament has been higher. Anyone can see how much influence this constant change in the composition of the American House must have upon its legislative efficiency.

I have kept to the last the feature of the House which an Englishman finds the strangest.

It has parties, but they are headless. There is neither government nor opposition. There can hardly be said to be leaders, and till 1900 there were no whips.4 No person holding any federal office or receiving any federal salary can be a member of it. That the majority may be and often is opposed to the president and his cabinet, does not strike Americans as odd, because they proceed on the theory that the legislative ought to be distinct from the executive authority. Since no minister sits, there is no official representative of the administration. Neither is there any permanent unofficial representative. And as there are no members whose opinions expressed in debate are followed, so there are none whose duty it is to be always on the spot to look after members to vote, secure a quorum, and tell their friends which way the bulk of the party is going.

So far as the majority has a chief, that chief is the Speaker, often chosen by them as their ablest and most influential man; but as the Speaker seldom joins in debate (though he may do so by leaving the chair, having put someone else in it), the chairman of the most important committee, that ofEdition: current; Page: [136] Ways and Means, enjoys a sort of eminence, and comes nearer than anyone else to the position of leader of the House.5 But his authority does not always enable him to secure cooperation for debate among the best speakers of his party, putting up now one now another, after the fashion of an English prime minister, and thereby guiding the general course of the discussion.

The minority need not formally choose a chief, nor is there usually anyone among them whose career marks him out as practically the first man, but there is generally someone who is regarded as leading, and the person whom they have put forward as their party candidate for the Speakership, giving him what is called “the complimentary nomination,” has a sort of vague claim to be so regarded. This honour carries little real authority. On one occasion the Speaker of the last preceding Congress, who had received such a complimentary nomination from his party against the candidate whom the majority elected, found immediately afterwards that so far from treating him as leader, they left him, on some motion which he made, in a ridiculously small minority. Of course when an exciting question comes up, some man of marked capacity and special knowledge will often become virtually leader, in either party, for the purposes of the debates upon it. But he will not necessarily command the votes of his own side.

How then does the House work?

If it were a chamber, like those of France or Germany, divided into four or five sections of opinion, none of which commands a steady majority, it would not work at all. But parties are few in the United States, and their cohesion tight. There are usually two only, so nearly equal in strength that the majority cannot afford to dissolve into groups like those of France. Hence upon all large national issues, whereon the general sentiment of the party has been declared, both the majority and the minority know how to vote, and vote solid, though upon minor issues much latitude is allowed.

If the House were, like the English House of Commons, to some extent an executive as well as a legislative body—one by whose cooperation and support the daily business of government had to be carried on—it could not work without leaders and whips. This it is not. It neither creates, nor controls, nor destroys, the administration, which depends on the president, himself the offspring of a direct popular mandate.

“Still,” it may be replied, “the House has important functions to discharge. Legislation comes from it. Supply depends on it. It settles the tariff, and votes money for the civil and military services, besides passing measuresEdition: current; Page: [137] to cure the defects which experience must disclose in the working of every government, every system of jurisprudence. How can it satisfy these calls upon it without leaders and organization?”

To a European eye, it does not seem to satisfy them. It votes the necessary supplies, but not wisely, giving sometimes too much, sometimes too little money, and taking no adequate securities for the due application of the sums voted. For many years it fumbled over both the tariff problem and the currency problem. It produces few useful laws, and leaves on one side many grave practical questions. An Englishman is disposed to ascribe these failures to the fact that as there are no leaders, there is no one responsible for the neglect of business, the miscarriage of bills, the unwise appropriation of public funds. “In England,” he says, “the ministry of the day bears the blame of whatever goes wrong in the House of Commons. Having a majority, it ought to be able to do what it desires. If it pleads that its measures have been obstructed, and that it cannot under the faulty procedure of the House of Commons accomplish what it seeks, it is met, and crushed, by the retort that in such case it ought to have the procedure changed. What else is its majority good for but to secure the efficiency of Parliament? In America there is no person against whom similar charges can be brought. Although conspicuous folly or perversity on the part of the majority tends to discredit them collectively with the public, and may damage them at the next presidential or congressional election, still, responsibility, to be effective, ought to be fixed on a few conspicuous leaders. Is not the want of such men, men to whom the country can look, and whom the ordinary members will follow, the cause of some of the faults which are charged on Congress, of its hesitations, its inconsistencies and changes, its ignoble surrenders to some petty clique, its deficient sense of dignity, its shrinking from troublesome questions, its proclivity to jobs?”

Two American statesmen to whom such a criticism was submitted, replied as follows: “It is not for want of leaders that Congress has forborne to settle the questions mentioned, but because the division of opinion in the country regarding them has been faithfully reflected in Congress. The majority has not been strong enough to get its way; and this has happened, not only because abundant opportunities for resistance arise from the methods of doing business, but still more because no distinct impulse or mandate towards any particular settlement of these questions has been received from the country. It is not for Congress to go faster than the people. When the country knows and speaks its mind, Congress will not fail to act.” The significance of this reply lies in its pointing to a fundamental differenceEdition: current; Page: [138] between the conception of the respective positions and duties of a representative body and of the nation at large entertained by Americans, and the conception which has hitherto prevailed in Europe. Europeans have thought of a legislature as belonging to the governing class. In America there is no such class. Europeans think that the legislature ought to consist of the best men in the country, Americans that it should be a fair average sample of the country. Europeans think that it ought to lead the nation, Americans that it ought to follow the nation.

Without some sort of organization, an assembly of three hundred and thirty men would be a mob, so necessity has provided in the system of committees a substitute for the European party organization. This system of committees will be explained in the next chapter; for the present it is enough to observe that when a matter which has been (as all bills are) referred to a committee, comes up in the House to be dealt with there, the chairman of the particular committee is treated as a leader pro hac vice, and members who knew nothing of the matter are apt to be guided by his speech or his advice given privately. If his advice is not available, or is suspected because he belongs to the opposite party, they seek direction from the member in charge of the bill, if he belongs to their own party, or from some other member of the committee, or from some friend whom they trust. When a debate arises unexpectedly on a question of importance, members are often puzzled how to vote. The division being taken, they get someone to move a call of yeas and nays, and while this slow process goes on, they scurry about asking advice as to their action, and give their votes on the second calling over if not ready on first. If the issue is one of serious consequence to the party, a recess is demanded by the majority, say for two hours. The House then adjourns, each party “goes into caucus” (the Speaker possibly announcing the fact), and debates the matter with closed doors. Then the House resumes, and each party votes solid according to the determination arrived at in caucus. In spite of these expedients, surprises and scratch votes are not uncommon.

I have spoken of the din of the House of Representatives, of its air of restlessness and confusion, contrasting with the staid gravity of the Senate, of the absence of dignity both in its proceedings and in the bearing and aspect of individual members. All these things notwithstanding, there is something impressive about it, something not unworthy of the continent for which it legislates.

This huge gray hall, filled with perpetual clamour, this multitude of keen and eager faces, this ceaseless coming and going of many feet, this irreverentEdition: current; Page: [139] public, watching from the galleries and forcing its way on to the floor, all speak to the beholder’s mind of the mighty democracy, destined in another century to form one half of civilized mankind, whose affairs are here debated. If the men are not great, the interests and the issues are vast and fateful. Here, as so often in America, one thinks rather of the future than of the present. Of what tremendous struggles may not this hall become the theatre in ages yet far distant, when the parliaments of Europe have shrunk to insignificance?

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chapter 15

The Committees of Congress

The most abiding difficulty of free government is to get large assemblies to work promptly and smoothly either for legislative or executive purposes. We perceive this difficulty in primary assemblies of thousands of citizens, like those of ancient Athens or Syracuse; we see it again in the smaller representative assemblies of modern countries. Three methods of overcoming it have been tried. One is to leave very few and comparatively simple questions to the assembly, reserving all others for a smaller and more permanent body, or for executive officers. This was the plan of the Romans, where the comitia (primary assemblies) were convoked only to elect magistrates and pass laws, which were short, clear, and submitted en bloc, without possibility of amendment, for a simple yes or no. Another method is to organize the assemblies into well-defined parties, each recognizing and guided by one or more leaders, so that on most occasions and for most purposes the rank and file of members exert no volition of their own, but move like battalions at the word of command. This has been the English system since about the time of Queen Anne. It was originally worked by means of extensive corruption; and not till this phase was passing away did it become an object of admiration to the world. Latterly it has been reproduced in the parliaments of most modern European states and of the British colonies. The third method, which admits of being more or less combined with the second, is to divide the assembly into a number of smaller bodies to which legislative and administrative questions may be referred, either for final determination or to be examined and reported on to the whole body. This is the system of committees, applied to some small extent in England, to a larger extent in France under the name of bureaux and commissions, and most of all in the United States. Some account of itsEdition: current; Page: [141] rules and working there is essential to a comprehension of the character of Congress and of the relations of the legislative to the executive branch of the federal government.

When Congress first met in 1789, both houses found themselves, as the state legislatures had theretofore been and still are, without official members and without leaders.1 The Senate occupied itself chiefly with executive business, and appointed no standing committees until 1816. The House however had bills to discuss, plans of taxation to frame, difficult questions of expenditure, and particularly of the national debt, to consider. For want of persons whose official duty required them, like English ministers, to run the machine by drafting schemes and bringing the raw material of its work into shape, it was forced to appoint committees. At first there were few; even in 1802 we find only five. As the numbers of the House increased and more business flowed in, additional committees were appointed; and as the House became more and more occupied by large political questions, minor matters were more and more left to be settled by these select bodies. Like all legislatures, the House constantly sought to extend its vision and its grasp, and the easiest way to do this was to provide itself with new eyes and new hands in the shape of further committees. The members were not, like their contemporaries in the English House of Commons, well-to-do men, mostly idle; they were workers and desired to be occupied. It was impossible for them all to speak in the House; but all could talk in a committee. Every permanent body cannot help evolving some kind of organization. Here the choice was between creating one ruling committee which should control all business, like an English ministry, and distributing business among a number of committees, each of which should undertake a special class of subjects. The latter alternative was recommended, not only by its promising a useful division of labour, but by its recognition of republican equality. It therefore prevailed, and the present elaborate system grew slowly to maturity.

To avoid the tedious repetition of details, I have taken the House of Representatives and its committees for description, because the system is more fully developed there than in the Senate. But a very few words on the Senate may serve to prevent misconceptions.

There were in the Sixty-first Congress (1909) seventy-two Senate committees,Edition: current; Page: [142] appointed for two years, being the period of a Congress.2 They and their chairmen are chosen not by the presiding officer but by the Senate itself, voting by ballot. Practically they are selected by a caucus of the majority and minority meeting in secret conclave, and then carried wholesale by vote in the Senate. Each consists of from three to seventeen members, few having less than five or more than fourteen, and all senators sit on more than one committee, some upon four or more. The chairman is appointed by the Senate and not by the committees themselves. There are also select committees appointed for a special purpose and lasting for one session only. (Senate committees sometimes sit during the recess.) Every bill introduced goes after its first and second reading (which are granted as of course) to a standing committee, which examines and amends it, and reports it back to the Senate.

There were in the Sixty-second Congress fifty-four standing committees of the House, i.e., committees appointed under standing regulations, and therefore regularly formed at the beginning of every Congress. Each committee consists of from three to twenty-one members, seven and nineteen being the commonest numbers. Every member of the House is placed on some one committee, not many on more than one. Besides these, select committees, seldom exceeding ten, on particular subjects of current interest are appointed from time to time. A complete list of the committees will be found at the end of this chapter. The most important standing committees are the following: Ways and means; appropriations; elections; banking and currency; accounts; rivers and harbours; judiciary (including changes in private law as well as in courts of justice); railways and canals; foreign affairs; naval affairs; military affairs; insular affairs; public lands; agriculture; claims; and the several committees on the expenditures of the various departments of the administration (war, navy, etc.)

The members of every standing committee are nominated at the beginning of each Congress, and sit through its two sessions. They are selected nominally by the House but practically by the Committee on Ways and Means, whose selections the House approves. The majority members of that committee are chosen by the caucus of the majority party in the House, the House as a whole approving the choice made by the caucus. The member first named is its chairman.

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To some one of these standing committees each and every bill is referred. Its second as well as its first reading is granted as of course, and without debate, since there would be no time to discuss the immense number of bills presented. When read a second time it is referred under the general rules to a committee; but doubts often arise as to which is the appropriate committee, because a bill may deal with a subject common to two or more jurisdictions, or include topics some of which belong to one jurisdiction, others to another. The disputes which may in such cases arise between several committees lead to keen debates and divisions, because the fate of the measure may depend on which of two possible paths it is made to take, since the one may bring it before a tribunal of friends, the other before a tribunal of enemies. Such disputes are determined by the vote of the House itself.

Not having been discussed, much less affirmed in principle, by the House, a bill comes before its committee with no presumption in its favour, but rather as a shivering ghost stands before Minos in the nether world. It is one of many, and for the most a sad fate is reserved. The committee may take evidence regarding it, may hear its friends and its opponents. They usually do hear the member who has introduced it, since it seldom happens that he has himself a seat on the committee. Members who are interested approach the committee and state their case there, not in the House, because they know that the House will have neither time nor inclination to listen. The committee can amend the bill as they please, and although they cannot formally extinguish it, they can practically do so by reporting adversely, or by delaying to report it till late in the session, or by not reporting it at all.

In one or other of these ways nineteen-twentieths of the bills introduced meet their death, a death which the majority doubtless deserve, and the prospect of which tends to make members reckless as regards both the form and the substance of their proposals. A motion may be made in the House that the committee do report forthwith, and the House can of course restore the bill, when reported, to its original form. But these expedients rarely succeed, for few are the measures which excite sufficient interest to induce an impatient and overburdened assembly to take additional work upon its own shoulders or to overrule the decision of a committee.

The deliberations of committees are usually secret. Evidence is frequently taken with open doors, but the newspapers do not report it, unless the matter excite public interest; and even the decisions arrived at are often noticed in the briefest way. It is out of order to canvass the proceedings of a committee in the House until they have been formally reported to it; and the reportEdition: current; Page: [144] submitted does not usually state how the members have voted, or contain more than a very curt outline of what has passed. No member speaking in the House is entitled to reveal anything further.

A committee have technically no right to initiate a bill but as they can either transform one referred to them, or, if none has been referred which touches the subject they seek to deal with, can procure one to be brought in and referred to them, their command of their own province is unbounded. Hence the character of all the measures that may be passed or even considered by the House upon a particular branch of legislation depends on the composition of the committee concerned with that branch. Some committees, such as those on naval and military affairs, and those on the expenditure of the several departments, deal with administration rather than legislation. They may summon the officials of the departments before them, and interrogate them as to their methods and conduct. Authority they have none, for officials are responsible only to their chief, the president, who may refuse to allow the official to appear; but the power of questioning is sufficient to check if not to guide the action of a department, since imperative statutes may follow, and the department, sometimes desiring legislation and always desiring money, has strong motives for keeping on good terms with those who control legislation and the purse. It is through these committees chiefly that the executive and legislative branches of government touch one another. Yet the contact, although the most important thing in a government, is the thing which the nation least notices, and has the scantiest means of watching.

The scrutiny to which the administrative committees subject the departments is so close and constant as to occupy much of the time of the officials and seriously interfere with their duties. Not only are they often summoned to give evidence; they are required to furnish minute reports on matters which a member of Congress could ascertain for himself. Nevertheless the House committees are not certain to detect abuses or peculation, for special committees of the Senate have repeatedly unearthed dark doings which had passed unsuspected the ordeal of a House investigation. After a bill has been debated and amended by the committee it is reported back to the House, and is taken up when that committee is called in its order. One hour is allowed to the member whom his fellow committeemen have appointed to report. He seldom uses the whole of this hour, but allots part of it to other members, opponents as well as friends, and usually concludes by moving the previous question. This precludes subsequent amendments and leaves only an hour before the vote is taken. As on an average eachEdition: current; Page: [145] committee (excluding the two or three great ones) has only two hours out of the whole ten months of Congress allotted to it to present and have discussed all its bills, it is plain that few measures can be considered, and each but shortly, in the House. The best chance of pressing one through is under the rule which permits the suspension of standing orders by a two-thirds majority during the last six days of the session.

What are the results of this system?

It destroys the unity of the House as a legislative body. Since the practical work of shaping legislation is done in the committees, the interest of members centres there, and they care less about the proceedings of the whole body. It is as a committeeman that a member does his real work. In fact the House has become not so much a legislative assembly as a huge panel from which committees are selected.

It prevents the capacity of the best members from being brought to bear upon any one piece of legislation, however important. The men of most ability and experience are chosen to be chairmen of the committees, or to sit on the two or three greatest. For other committees there remains only the rank and file of the House, a rank and file nearly half of which is new at the beginning of each Congress. Hence every committee (except the aforesaid two or three) is composed of ordinary persons, and it is impossible, save by creating a special select committee, to get together what would be called in England “a strong committee,” i.e., one where half or more of the members are exceptionally capable. The defect is not supplied by discussion in the House, for there is no time for such discussion.

It cramps debate. Every foreign observer has remarked how little real debate, in the European sense, takes place in the House of Representatives. The very habit of debate, the expectation of debate, the idea that debate is needed, have vanished, except as regards questions of revenue and expenditure, because the centre of gravity has shifted from the House to the committees.

It lessens the cohesion and harmony of legislation. Each committee goes on its own way with its own bills just as though it were legislating for one planet and the other committees for others. Hence a want of policy and method in Congressional action. The advance is haphazard; the parts have little relation to one another or to the whole.

It gives facilities for the exercise of underhand and even corrupt influence. In a small committee the voice of each member is well worth securing, and may be secured with little danger of a public scandal. The press cannot, even when the doors of committee rooms stand open, report the proceedingsEdition: current; Page: [146] of sixty bodies; the eye of the nation cannot follow and mark what goes on within them; while the subsequent proceedings in the House are too hurried to permit a ripping up there of suspicious bargains struck in the purlieus of the Capitol, and fulfilled by votes given in a committee. I do not think that corruption, in its grosser forms, is rife at Washington. It appears chiefly in the milder form of reciprocal jobbing or (as it is called) “logrolling.” But the arrangements of the committee system have produced and sustain the class of professional “lobbyists,” persons who make it their business to “see” members and procure, by persuasion, importunity, or the use of inducements, the passing of bills, public as well as private, which involve gain to their promoters.

It reduces responsibility. In England, if a bad act is passed or a good bill rejected, the blame falls primarily upon the ministry in power whose command of the majority would have enabled them to defeat it, next upon the party which supported the ministry, then upon the individual members who are officially recorded to have “backed” it and voted for it in the House. The fact that a select committee recommended it—and comparatively few bills pass through a select committee—would not be held to excuse the default of the ministry and the majority. But in the United States the ministry cannot be blamed, for the cabinet officers do not sit in Congress; the House cannot be blamed because it has only followed the decision of its committee; the committee may be an obscure body, whose members are too insignificant to be worth blaming. The chairman is possibly a man of note, but the people have no leisure to watch sixty chairmen: they know Congress and Congress only; they cannot follow the acts of those to whom Congress chooses to delegate its functions. No discredit attaches to the dominant party, because they could not control the acts of the eleven men in the committee room. Thus public displeasure rarely finds a victim, and everybody concerned is relieved from the wholesome dread of damaging himself and his party by negligence, perversity, or dishonesty. Only when a scandal has arisen so serious as to demand investigation is the responsibility of the member to his constituents and the country brought duly home.

It lowers the interests of the nation in the proceedings of Congress.3Edition: current; Page: [147] Except in exciting times, when large questions have to be settled, the bulk of real business is done not in the great hall of the House but in this labyrinth of committee rooms and the lobbies that surround them. What takes place in view of the audience is little more than a sanction, formal indeed but hurried and often heedless, of decisions procured behind the scenes, whose mode and motives remain undisclosed. Hence people cease to watch Congress with that sharp eye which every principal ought to keep fixed on his agent. Acts pass unnoticed whose results are in a few months discovered to be so grave that the newspapers ask how it happened that they were allowed to pass.

The country of course suffers from the want of the light and leading on public affairs which debates in Congress ought to supply. But this is more fairly chargeable to defects of the House which the committees are designed to mitigate than to the committees themselves. The time which the committee work leaves for the sittings of the House is long enough to permit due discussion did better arrangements exist for conducting it.

It throws power into the hands of the chairmen of committees, especially, of course, of those which deal with finance and with great material interests. They become practically a second set of ministers, before whom the departments tremble, and who, though they can neither appoint nor dismiss a postmaster or a tide-waiter, can by legislation determine the policy of the branch of administration which they oversee. This power is not necessarily accompanied by responsibility, because it is largely exercised in secret.

It enables the House to deal with a far greater number of measures and subjects than could otherwise be overtaken; and has the advantage of enabling evidence to be taken by those whose duty it is to reshape or amend a bill. It replaces the system of interrogating ministers in the House which prevails in most European chambers; and enables the working of the administrative departments to be minutely scrutinized.

It sets the members of the House to work for which their previous training has fitted them much better than for either legislating or debating “in the grand style.” They are shrewd, keen men of business, apt for talk in committee, less apt for wide views of policy and elevated discourse in an assembly. The committees are therefore good working bodies, but bodies which confirm congressmen in the intellectual habits they bring with them instead of raising them to the higher platform of national questions and interests.

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Summing up, we may say that under this system the House despatches a vast amount of work and does the negative part of it, the killing off of worthless bills, in a thorough way. Were the committees abolished and no other organization substituted, the work could not be done. But much of it, including most of the private bills, ought not to come before Congress at all; and the more important part of what remains, viz., public legislation, is dealt with by methods securing neither the pressing forward of the measures most needed, nor the due debate of those that are pressed forward.

Why, if these mischiefs exist, is the system of committee legislation maintained?

It is maintained because none better has been, or, as most people think, can be devised. “We have,” say the Americans, “four hundred members in the House, most of them eager to speak, nearly all of them giving constant attendance. The bills brought in are so numerous that in our two sessions, one of seven or eight months, the other of three months, not one-twentieth could be fairly discussed on second reading or in Committee of the Whole. If even this twentieth were discussed, no time would remain for supervision of the departments of state. That supervision itself must, since it involves the taking of evidence, be conducted by committees. In England one large and strong committee, viz., the ministry of the day, undertakes all the more important business, and watches even the bills of private members. Your House of Commons could not work for a single sitting without such a committee, as is proved by the fact that when you are left for a little without a ministry, the House adjourns. We cannot have such a committee, because no officeholder sits in Congress. Neither can we organize the House under leaders, because prominent men have among us little authority, since they are unconnected with the executive, and derive from the people no title to leadership.4 Neither can we create a ruling committee of the majority, because this would be disliked as an undemocratic institution. Hence our only course is to divide the unwieldy multitude into small bodies capable of dealing with particular subjects. Each of them is no doubt powerful in its own sphere, but that sphere is so small that no grave harm can result.Edition: current; Page: [149] The acts passed may not be the best possible; the legislation of the year may resemble a patchwork quilt, where each piece is different in colour and texture from the rest. But as we do not need much legislation, and as nearly the whole field of ordinary private law lies outside the province of Congress, the mischief is slighter than you Europeans expect. If we made legislation easier, we might have too much of it; and in trying to give it the more definite character you suggest, we might make it too bold and sweeping. Be our present system bad or good, it is the only system possible under our Constitution, and the fact that it was not directly created by that instrument, but has been evolved by the experience of four or five generations, shows how strong must be the tendencies whose natural working has produced it.”

Note to Chapter 15: LIST OF STANDING COMMITTEES of the House in the Sixty-first Congress, Second Session. (Corrected to April, 1910.)

On Ways and Means; Appropriations; Judiciary; Banking and Currency; Coinage, Weights and Measures; Interstate and Foreign Commerce; Rivers and Harbours; Merchant Marine and Fisheries; Agriculture; Elections (three Committees); Foreign Affairs; Military Affairs; Naval Affairs; Post Office and Post Roads; Public Lands; Indian Affairs; Territories; Railways and Canals; Manufactures; Mines and Mining; Public Buildings and Grounds; Pacific Railroads; Levees and Improvements of the Mississippi River; Education; Labour; Militia; Patents; Invalid Pensions; Pensions; Claims; War Claims; Private Land Claims; District of Columbia; Revision of the Laws; nine committees on expenditures—in the State Department, Treasury Department, War Department, Navy Department, Post Office Department, Interior Department, Department of Justice, Agriculture, Department of Commerce and Labour, and Public Buildings; Rules; Accounts; Mileage; Library; Printing; Enrolled Bills; Select Committees—Reform in the Civil Service; Election of President and Vice-President; Census; Ventilation and Acoustics; Alcoholic Liquor Traffic; Irrigation of Arid Lands; Immigration and Naturalization; Industrial Arts and Expositions; Disposition of Useless Papers in the Executive Departments (joint).

The committees in the Sixty-second Congress differed very little from this list.

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chapter 16

Congressional Legislation

Legislation is more specifically and exclusively the business of Congress than it is the business of governing parliaments such as those of England, France, and Italy. We must therefore, in order to judge of the excellence of Congress as a working machine, examine the quality of the legislation which it turns out.

Acts of Congress are of two kinds, public and private. Passing by private acts for the present, though they occupy a large part of Congressional time,1 let us consider public acts. These are of two kinds, those which deal with the law or its administration, and those which deal with finance, that is to say, provide for the raising and application of revenue. I devote this chapter to the former class, and the next to the latter.

There are many points of view from which one may regard the work of legislation. I suggest a few only, in respect of which the excellence of the work may be tested; and propose to ask: What security do the legislative methods and habits of Congress offer for the attainment of the following desirable objects? viz.:

  • 1. The excellence of the substance of a bill, i.e., its tendency to improve the law and promote the public welfare
  • 2. The excellence of the form of a bill, i.e., its arrangement and the scientific precision of its language
  • 3. The harmony and consistency of an act with the other acts of the same session
  • 4. The due examination and sifting in debate of a bill
  • 5. The publicity of a bill, i.e., the bringing it to the knowledge of theEdition: current; Page: [151] country at large, so that public opinion may be fully expressed regarding it
  • 6. The honesty and courage of the legislative assembly in rejecting a bill, however likely to be popular, which their judgment disapproves
  • 7. The responsibility of some person or body of persons for the enactment of a measure, i.e., the fixing on the right shoulders of the praise for passing a good, the blame for passing a bad, act

The criticisms that may be passed on American practice under the preceding heads will be made clearer by a comparison of English practice. Let us therefore first see how English bills and acts stand the tests we are to apply to the work of Congress.

In England public bills fall into two classes: those brought in by the ministry of the day as responsible advisers of the sovereign, and those brought in by private members. In point of law and in point of form there is no difference between these classes. Practically there is all the difference in the world, because a government bill has behind it the responsibility of the ministry, and presumably the weight of the majority which keeps the ministry in office. The ministry dispose of a half or more of the working time of the House, and have therefore much greater facilities for pushing forward their bills. Nearly all the most important bills, which involve large political issues, are government bills, so that the hostile critic of a private member’s bill will sometimes argue that the House ought not to permit the member to proceed with it, because it is too large for any unofficial hands. This premised, we may proceed to the seven points above mentioned.

1. In England, as the more important bills are government bills, their policy is sure to have been carefully weighed. The ministry have every motive for care, because the fortunes of a first-class bill are their own fortunes. If it is rejected, they fall. A specially difficult bill is usually framed by a committee of the cabinet, and then debated by the cabinet as a whole before it appears in Parliament. Minor bills are settled in the departments by the parliamentary head with his staff of permanent officials.

2. In England, government bills are prepared by the official government draftsmen, two eminent lawyers with several assistants, who constitute an office for this purpose. Private members who are lawyers often draft their own bills; those who are not generally employ a barrister. The drafting of government bills has much improved of late years, and the faults of form observable in British acts are chiefly due to amendments made in Committee of the Whole House.

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3. The harmony of one government bill with others of the same session is secured by the care of the official draftsmen, as well as by the fact that all emanate from one and the same ministry. No such safeguards exist in the case of private members’ bills, but it is of course the duty of the ministry to watch these legislative essays, and get Parliament to strike out of any one of them whatever is inconsistent with another measure passed or intended to be passed in the same session.

4. Difficult and complicated bills which raise no political controversy are sometimes referred to a select committee, which goes through them and reports them as amended to the House. They are afterwards considered, and often fully debated, first in Committee of the Whole, and then by the House on the stage of report from Committee of the Whole to the House. Such bills are now often referred to what are called grand committees, i.e., committees of at least fifty appointed in each session for the consideration of particular kinds of business, discussion in which replaces the discussion in Committee of the Whole. Many bills, however, never go before select or grand committees. While measures which excite political feeling or touch any powerful interest (such as that of landowners or railroads or liquor dealers) are exhaustively debated, others may slip through unobserved. The enormous pressure of work and the prolixity with which some kinds of business are discussed, involve the hurrying other business through with scant consideration.

5. Except in the case of discussions at unseasonable hours, the proceedings of Parliament are so far reported in the leading newspapers and commented on by them that bills, even those of private members, generally become known to those whom they may concern. There is usually a debate on the second reading, and this debate attracts notice.

6. A government bill is, by the law of its being, exposed to the hostile criticism of the opposition, who have an interest in discrediting the ministry by disparaging their work. As respects private members’ bills, it is the undoubted duty of some minister to watch them, and to procure their amendment or rejection if he finds them faulty. This duty is discharged less faithfully than might be wished, but perhaps as well as can be expected from weak human nature, often tempted to conciliate a supporter or an “interest” by allowing a measure to go through which ought to have been stopped.

7. Responsibility for everything done in the House rests upon the ministry of the day, because they are the leaders of the majority. If they allow a private member to pass a bad bill, if they stop him when trying to pass aEdition: current; Page: [153] good bill, they are in theory no less culpable than if they pass a bad bill of their own. Accordingly, when the second reading of a measure of any consequence is moved, it is the duty of some member of the ministry to rise, with as little delay as possible, and state whether the ministry support it, or oppose it, or stand neutral. Standing neutral is, so far as responsibility to the country goes, practically the same thing as supporting. The opposition, as an organized body, are not expected to express their opinion on any bills except those of high political import. Needless to say, private members are also held strictly responsible for the votes they give, these votes being all recorded and published next morning. Of course both parties claim praise or receive blame from the country in respect of their attitude towards bills of moment, and when a session has produced few or feeble acts the opposition charge the ministry with sloth or incompetence.

The rules and usages I have described constitute valuable aids to legislation, and the quality of English and Scottish legislation, take it all and all, is good; that is to say, the statutes are such as public opinion (whether rightly or wrongly) demands, and are well drawn for the purposes they aim at.

Let us now apply the same tests to the legislation of Congress. What follows refers primarily to the House, but is largely true of the Senate, because in the Senate also the committees play an important part.

In neither house of Congress are there any government bills. All measures are brought in by private members because all members are private. The nearest approach to the government bill of England is one brought in by a leading member of the majority in pursuance of a resolution taken in the congressional caucus of that majority. This seldom happens. One must therefore compare the ordinary congressional bill with the English private member’s bill rather than with a government measure, and expect to find it marked by the faults that mark the former class. The second difference is that whereas in England the criticism and amendment of a bill takes place in Committee of the Whole, and of other public bills in one of the large standing committees introduced since 1883, in the House of Representatives it takes place in a small committee of twenty members or less, often of seven. In the Senate also the committees do most of the work, but the Committee of the Whole occasionally debates a bill pretty fully.

Premising these dissimilarities, I go to the seven points before mentioned.

1. The excellence of the substance of a bill introduced in Congress depends entirely on the wisdom and care of its introducer. He may, if self-distrustful, take counsel with his political allies respecting it. But there is no security for its representing any opinion or knowledge but his own. ItEdition: current; Page: [154] may affect the management of an executive department, but the introducing member does not command departmental information, and will, if the bill passes, have nothing to do with the carrying out of its provisions. On the other hand, the officials of the government cannot submit bills; and if they find a congressman willing to bring them in, must leave the advocacy and conduct of the measure largely in his hands.

2. The drafting of a measure depends on the pains taken and skill exerted by its author. Senate bills are usually well drafted because many senators are experienced lawyers; House bills are often crude and obscure. There does not exist either among the executive departments or in connection with Congress, any legal office charged with the duty of preparing bills, or of seeing that the form in which they pass is technically satisfactory.

3. The only security for the consistency of the various measures of the same session is to be found in the fact that those which affect the same matter ought to be referred to the same committee. However, it often happens that there are two or more committees whose spheres of jurisdiction overlap, so that of two bills handling cognate matters, one may go to Committee A and the other to Committee B. Should different views of policy prevail in these two bodies, they may report to the House bills containing mutually repugnant provisions. There is nothing except unusual vigilance on the part of some member interested, to prevent both bills from passing. That mischief from this cause is not serious arises from the fact that out of the multitude of bills introduced, few are reported and still fewer become law.

4. The function of a committee of either house of Congress extends not merely to the sifting and amending of the bills referred to it, but to practically redrawing them, if the committee desires any legislation, or rejecting them by omitting to report them till near the end of the session if it thinks no legislation needed. Every committee is in fact a small bureau of legislation for the matters lying within its jurisdiction. It has for this purpose the advantage of time, of the right to take evidence, and of the fact that some of its members have been selected from their knowledge of or interest in the topics it has to deal with. On the other hand, it suffers from the nonpublication of its debates, and from the tendency of all small and secret bodies to intrigues and compromises, compromises in which general principles of policy are sacrificed to personal feeling or selfish interest. Bills which go in black or white come out gray. They may lose all their distinctive colour; or they may be turned into a medley of scarcely consistent provisions.Edition: current; Page: [155] The member who has introduced a bill may not have a seat on the committee, and may therefore be unable to protect his offspring. Other members of the House, masters of the subject but not members of the committee, can only be heard as witnesses. Although therefore there are full opportunities for the discussion of the bill by the committee, it often emerges in an unsatisfactory form, or is quietly suppressed, because there is no impetus of the general opinion of the House or the public to push it through. When the bill comes back to the House the chairman or other reporting member of the committee generally moves the previous question, after which no amendment can be offered. Debate ceases and the bill is promptly passed or lost. In the Senate there is a better chance of discussion, for the Senate, having more time and fewer speakers, can review to some real purpose the findings of its committees.

5. As there is no debate on the introduction or on the second reading of a bill, the public is not necessarily apprised of the measures which are before Congress. An important measure is of course watched by the newspapers and so becomes known; minor measures go unnoticed.

6. The general good nature of Americans, and the tendency of members of their legislatures to oblige one another by doing reciprocal good turns, dispose people to let any bill go through which does not injure the interest of a party or of a person. Such good nature counts for less in a committee, because a committee has its own views and gives effect to them. But in the House there are few views, though much impatience. The House has no time to weigh the merits of a bill reported back to it. Members have never heard it debated. They know no more of what passed in the committee than the report tells them. If the measure is palpably opposed to their party tenets, the majority will reject it; if no party question arises they usually adopt the view of the committee.

7. What has been said already will have shown that except as regards bills of great importance, or directly involving party issues, there can be little effective responsibility for legislation. The member who brings in a bill is not responsible, because the committee generally alters his bill. The committee is little observed and the details of what passed within the four walls of its room are not published. The great parties in the House are but faintly responsible, because their leaders are not bound to express an opinion, and a vote taken on a nonpartisan bill is seldom a strict party vote. Individual members are no doubt responsible, and a member who votes against a popular measure, one for instance favoured by the working men, will sufferEdition: current; Page: [156] for it.2 But the responsibility of individuals, most of them insignificant, half of them destined to vanish, like snowflakes in a river, at the next election, gives little security to the people.

The best defence that can be advanced for this system is that it has been naturally evolved as a means of avoiding worse mischiefs. It is really a plan for legislating by a number of commissions. Each commission, receiving suggestions in the shape of bills, taking evidence upon them, and sifting them in debate, frames its measures and lays them before the House in a shape which seems designed to make amendment in details needless, while leaving the general policy to be accepted or rejected by a simple vote of the whole body. In this last respect the plan may be compared with that of the Romans during the Republic, whose general assembly of the people approved or disapproved of a bill as a whole, without power of amendment, a plan which had the advantage of making laws clear and simple. At Rome, however, bills could be proposed only by a magistrate upon his official responsibility; they were therefore comparatively few and sure to be carefully drawn. The members of American legislative commissions have no special training, no official experience, little praise or blame to look for, and no means of securing that the overburdened House will ever come to a vote on their proposals. There is no more agreement between the views of one commission and another than what may result from the fact that the majority in both belongs to the same party.

Add to the conditions above described the fact that the House in its few months of life has not time to deal with one-twentieth of the many thousand bills which are thrown upon it, that it therefore drops the enormous majority unconsidered, though some of the best may be in this majority, and passes many of those which it does pass by a suspension of the rules which leaves everything to a single vote,3 and the marvel comes to be, not that legislation is faulty, but that an intensely practical people tolerates such defective machinery. Some reasons may be suggested tending to explain this phenomenon.

Legislation is a difficult business in all free countries, and perhaps more difficult the more free the country is, because the discordant voices are moreEdition: current; Page: [157] numerous and less under control. America has sometimes sacrificed practical convenience to her dislike to authority.

The Americans surpass all other nations in their power of making the best of bad conditions, getting the largest results out of scanty materials or rough methods. Many things in that country work better than they ought to work, so to speak, or could work in any other country, because the people are shrewdly alert in minimizing such mischiefs as arise from their own haste or heedlessness, and have a great capacity for self-help.

Aware that they possess this gift, the Americans have been content to leave their political machinery unreformed. Persons who propose comprehensive reforms are suspected as theorists and faddists. The national inventiveness, active in the spheres of mechanics and moneymaking, spends little of its force on the details of governmental methods, and the interest in material development tends to diminish the interest felt in politics. Nevertheless a certain change of attitude is evidenced by the much greater attention now given in the universities to the teaching of the principles and practice of government and administration.

The want of legislation on topics where legislation is needed breeds fewer evils than would follow in countries like England or France where Parliament is the only lawmaking body. The powers of Congress are limited to comparatively few subjects: its failures are supposed seldom to touch the general well-being of the people, or the healthy administration of the ordinary law.

The faults of bills passed by the House are often cured by the Senate, where discussion, if not conducted with a purer public spirit, is at least more leisurely and thorough. The committee system produces in that body also some of the same flabbiness and colourlessness in bills passed. But the blunders, whether in substance or of form, of the one chamber are frequently corrected by the other, and many bad bills fail owing to a division of opinion between the houses.

The Speaker had and the managing committee now has, through their control of business in the House, what practically amounts to a veto upon bills; and not a few thus perish.

The president’s veto kills off some vicious measures. He does not trouble himself about defects of form; but where a bill seems to him opposed to sound policy, it is his constitutional duty to disapprove it, and to throw on Congress the responsibility of passing it “over his veto” by a two-thirds vote. A good president accepts this responsibility.

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chapter 17

Congressional Finance

Finance is a sufficiently distinct and important department of legislation to need a chapter to itself; nor does any legislature devote so large a proportion of its time than does Congress to the consideration of financial bills. These are of two kinds: those which raise revenue by taxation, and those which direct the application of the public funds to the various expenses of the government. At present Congress raises all the revenue it requires by indirect taxation,1 and chiefly by duties of customs and excise; so taxing bills are practically tariff bills, the excise duties being comparatively little varied from year to year.

The method of passing both kinds of bills is unlike that of most European countries. In England, with which, of course, America can be most easily compared, although both the levying and the spending of money are absolutely under the control of the House of Commons, the House of Commons originates no proposal for either. It never either grants money or orders the raising of money except at the request of the Crown. Once a year the Chancellor of the Exchequer lays before it, together with a full statement of the revenue and expenditure of the past twelve months, estimates of the expenditure for the coming twelve months, and suggestions for the means of meeting that expenditure by taxation or by borrowing. He embodies these suggestions in resolutions on which, when the House has accepted them, bills are grounded imposing certain taxes or authorizing the raising of a loan. The House may of course amend the bills in details, but no private member ever proposes a taxing bill, for it is no concern of anyone’s except theEdition: current; Page: [159] ministry to fill the public treasury.2 The estimates prepared by the several administrative departments (Army, Navy, Office of Works, Foreign Office, etc.), and revised by the Treasury, specify the items of proposed expenditure with much particularity, and fill three or more bulky volumes, which are delivered to every member of the House. These estimates are debated in Committee of the Whole House, explanations being required from the ministers who represent the Treasury and the several departments and are passed in a long succession of separate votes. Members may propose to reduce any particular grants, but not to increase them; no money is ever voted for the public service except that which the Crown has asked for through its ministers. The Crown must never ask for more than it actually needs, and hence the ministerial proposals for taxation are carefully calculated to raise just so much money as will easily cover the estimated expenses for the coming year. It is reckoned almost as great a fault in the finance minister if he has needlessly overtaxed the people, as if he has so undertaxed them as to be left with a deficit. If at the end of a year a substantial surplus appears, the taxation for next year is reduced in proportion, supposing that the expenditure remains the same. Every credit granted by Parliament expires of itself at the end of the financial year.

In the United States the secretary of the treasury sends annually to Congress a report containing a statement of the national income and expenditure and of the condition of the public debt, together with remarks on the system of taxation and suggestions for its improvement. He also sends what is called his annual letter, enclosing the estimates, framed by the various departments, of the sums needed for the public services of the United States during the coming year.3 So far the secretary is like a European finance minister, except that he communicates with the chamber on paper instead of making his statement and proposals orally. But here the resemblance stops. Everything that remains in the way of financial legislation is done by Congress and its committees, the president having no further hand in theEdition: current; Page: [160] matter,4 although he may send messages pressing Congress to vote for money for some purpose which he deems important.

The business of raising money belongs to one committee only, the standing Committee on Ways and Means, consisting of nineteen members. Its chairman is always a leading man in the party which commands a majority in the House. This committee prepares and reports to the House the bills needed for imposing or continuing the various customs duties, excise duties, etc. The report of the secretary has been referred by the House to this committee, but the latter does not necessarily base its bills upon or in any way regard that report. Neither does it in preparing them start from an estimate of the sums needed to support the public service. It does not, because it cannot; for it does not know what grants for the public service will be proposed by the spending committees, since the estimates submitted in the secretary’s letter furnish no trustworthy basis for a guess. It does not, for the further reason that the primary object of customs duties has for many years past been not the raising of revenue, but the protection of American industries by subjecting foreign products to a very high tariff. This tariff (further raised in 1890 and 1897, altered in 1909, and reduced in 1913) brought in an income far exceeding the current needs of the government. Two-thirds of the war debt having been paid off, the fixed charges shrank to one-third of what they were when the war ended, yet this tariff remains with few modifications, surpluses constantly accumulating in the national treasury, until in 1890 a pension act was passed which increased expenditures so largely as almost to absorb even the growing surplus. The Committee on Ways and Means has therefore no motive for adapting taxation to expenditure. The former seemed likely to be always in excess while the protective tariff stood, and the protective tariff stood for commercial or political reasons unconnected with national finance.5 Of recent finance it would be difficult to speak without entering on controversial ground.

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When the revenue bills come to be debated in Committee of the Whole House similar causes prevent them from being scrutinized from the purely financial point of view. Debate turns on those items of the tariff which involve gain or loss to influential groups. Little inquiry is made as to the amount needed and the adaptation of the bills to produce that amount and no more. It is the same with ways and means bills in the Senate. Communications need not pass between the committees of either house and the Treasury. The person most responsible, the person who most nearly corresponds to an English Chancellor of the Exchequer, or a French Minister of Finance, is the chairman of the House Committee on Ways and Means. But he stands in no official relation to the Treasury, and is not required to exchange a word or a letter with its staff. Neither, of course, can he count on a majority in the House. Though he is a leading man he is not a leader, i.e., he has no claim on the votes of his own party, many of whom may disapprove of and cause the defeat of his proposals. This befell in 1886, when the chairman of this committee, an able man, and perhaps, after the Speaker, the most considerable person in the Democratic majority, was beaten in his attempted reform of the tariff.

The business of spending money used to belong to the Committee on Appropriations, but in 1883 a new committee, that on Rivers and Harbours, received a large field of expenditure; and in 1886 sundry other supply bills were referred to sundry standing committees. The Committee on Appropriations starts from, but does not adopt, the estimates sent in by the secretary of the treasury, for the appropriation bills it prepares usually make large and often reckless reductions in these estimates. The Rivers and Harbours Committee proposes grants of money for what are called “internal improvements,” nominally in aid of navigation, but practically in order to turn a stream of public money into the state or states where each “improvement” is to be executed. More money is wasted in this way than what the parsimony of the Appropriations Committee can save. Each of the other standing committees, including the Committee on Pensions, a source of infinite waste,6 proposes grants of money, not knowing nor heeding what is being proposed by other committees, and guided by the executive no further thanEdition: current; Page: [162] the members choose. All the expenditures recommended must be met by appropriation bills, but into their propriety the Appropriations Committee cannot inquire.

Every revenue bill must, of course, come before the House; and the House, whatever else it may neglect, never neglects the discussion of taxation and money grants. These are discussed as fully as the pressure of work permits, and are often added to by the insertion of fresh items, which members interested in getting money voted for a particular purpose or locality suggest. These bills then go to the Senate, which forthwith refers them to its committees. The Senate Committee on Finance deals with revenue-raising bills; the Committee on Appropriations with supply bills. Both sets then come before the whole Senate. Although it cannot initiate appropriation bills, the Senate has long ago made good its claim to amend appropriations bills, and does so freely, adding items and often raising the total of the grants. When the bills go back to the House, the House usually rejects the amendments; the Senate adheres to them, and a conference committee is appointed, consisting of three senators and three members of the House, by which a compromise is settled, hastily and in secret, and accepted, generally in the last days of the session, by a hard-pressed but reluctant House. Even as enlarged by this committee, the supply voted is usually found inadequate, so a deficiency bill is introduced in the following session, including a second series of grants to the departments.

The European reader will ask how all this is or can be done by Congress without frequent communication from or to the executive government. There are such communications, for the ministers, anxious to secure appropriations adequate for their respective departments, talk to the chairmen and appear before the committees to give evidence as to departmental needs. But Congress does not look to them for guidance as in the early days it looked to Hamilton and Gallatin. If the House cuts down their estimates they turn to the Senate and beg it to restore the omitted items; if the Senate fail them, the only resource left is a deficiency bill in the next session. If one department is so starved as to be unable to do its work, while another obtains lavish grants which invite jobbery or waste, it is the committees, not the executive, whom the people ought to blame. If, by a system of logrolling, vast sums are wasted upon useless public works, no minister has any opportunity to interfere, any right to protest. A minister cannot, as in England, bring Congress to reason by a threat of resignation, for it would make no difference to Congress if the whole cabinet were to resign, unless of course theEdition: current; Page: [163] congressmen most conspicuously concerned should be so palpably in fault that the people could be roused to vigorous disapproval.

What has been here stated may be summarized as follows:

There is practically no connection between the policy of revenue raising and the policy of revenue spending, for these are left to different committees whose views may be opposed, and the majority in the House has no recognized leaders to remark the discrepancies or make one or other view prevail. In the Forty-ninth Congress a strong free trader was chairman of the tax-proposing Committee on Ways and Means, while a strong protectionist was chairman of the spending Committee on Appropriations.

There is no relation between the amount proposed to be spent in any one year, and the amount proposed to be raised. But for the fact that the high tariff produces a large annual surplus, a financial breakdown would speedily ensue.

The knowledge and experience of the permanent officials either as regards the productivity of taxes, and the incidental benefits or losses attending their collection, or as regards the nature of various kinds of expenditure and their comparative utility, can be turned to account only by interrogating these officials before the committees. Their views are not stated in the House by a parliamentary chief, nor tested in debate by arguments addressed to him which he must there and then answer.

Little check exists on the tendency of members to deplete the public treasury by securing grants for their friends or constituents, or by putting through financial jobs for which they are to receive some private consideration. If either the majority of the Committee on Appropriations or the House itself suspects a job, the grant proposed may be rejected. But it is the duty of no one in particular to scent out a job, and to defeat it by public exposure.

The nation is sometimes puzzled by a financial policy varying from year to year, and controlled by no responsible leaders, and it feels less interest than it ought in congressional discussions, nor has it confidence in Congress.7

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The result on the national finance is unfortunate. A thoughtful American publicist remarks, “So long as the debit side of the national account is managed by one set of men, and the credit side by another set, both sets working separately and in secret without public responsibility, and without intervention on the part of the executive official who is nominally responsible; so long as these sets, being composed largely of new men every two years, give no attention to business except when Congress is in session, and thus spend in preparing plans the whole time which ought to be spent in public discussion of plans already matured, so that an immense budget is rushed through without discussion in a week or ten days—just so long the finances will go from bad to worse, no matter by what name you call the party in power. No other nation on earth attempts such a thing, or could attempt it without soon coming to grief, our salvation thus far consisting in an enormous income.”

It may be replied to this criticism that the enormous income, added to the fact that the tariff is imposed for protection rather than for revenue, is not only the salvation of the United States government under the present system, but also the cause of that system. Were the tariff framed with a view to revenue only, no higher taxes would be imposed than the public service required, and a better method of balancing the public accounts would follow. America is the only country in the world whose difficulty is not to raise money but to spend it.8 But it is equally true that Congress is contracting lax habits, and ought to change them.

How comes it, if all this be true, that the finances of America have been so flourishing, and in particular that the Civil War debt was paid off with such regularity and speed that the total public debt of $3,000,000,000Edition: current; Page: [165] (£600,000,000) in 1865 had sunk in 1890 to $1,000,000,000 (£200,000,000)? Does not so brilliant a result speak of a continuously wise and skilful management of the national revenue?

The swift reduction of the debt seems to be due to the following causes:

To the prosperity of the country which, with one interval of trade depression, has for twenty-five years been developing its amazing natural resources so fast as to produce an amount of wealth which is not only greater, but more widely diffused through the population, than in any other part of the world.9

To the spending habits of the people, who allow themselves luxuries such as the masses enjoy in no other country, and therefore pay more than any other people in the way of indirect taxation. The fact that federal revenue is raised by duties of customs and excise makes the people far less sensible of the pressure of taxation than they would be did they pay directly.

To the absence, down till 1899, of the military and naval charges which press so heavily on European states.

To the maintenance of an exceedingly high tariff at the instance of interested persons who have obtained the public ear and can influence Congress. It was the acceptance of the policy of protection, rather than any deliberate conviction that the debt ought to be paid off, that caused the continuance of a tariff whose huge and constant surpluses have enabled the debt to be reduced.

Europeans, admiring and envying the rapidity with which the Civil War debt was reduced were in those years disposed to credit the Americans with brilliant financial skill. That, however, which was really admirable in the conduct of the American people was not their judgment in selecting particular methods for raising money, but their readiness to submit during and immediately after the war to unprecedentedly heavy taxation. The interests (real or supposed) of the manufacturing classes have caused the maintenance of the tariff then imposed; nature, by giving the people a spending power which rendered the tariff marvellously productive, did the rest.

Under the system of congressional finance here described America wastes millions annually. But her wealth is so great, her revenue so elastic, that she is not sensible of the loss. She has the glorious privilege of youth, the privilege of committing errors without suffering from their consequences.

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chapter 18

The Relations of the Two Houses

The creation by the Constitution of 1789 of two chambers in the United States, in place of the one chamber which existed under the Confederation has been usually ascribed by Europeans to mere imitation of England; and one learned writer goes so far as to suggest that if England had possessed three chambers, like the States General of France, or four, like the Diet of Sweden, a crop of three-chambered or four-chambered legislatures would, in obedience to the example of happy and successful England, have sprung up over the world. There were, however, better reasons than deference to English precedents to justify the division of Congress into two houses and no more; and so many indubitable instances of such a deference may be quoted that there is no need to hunt for others. Not to dwell upon the fact that there were two chambers in all but two1 of the thirteen original states, the Convention of 1787 had two solid motives for fixing on this number, a motive of principle and theory, a motive of immediate expediency.

The chief advantage of dividing a legislature into two branches is that the one may check the haste and correct the mistakes of the other. This advantage is purchased at the price of some delay, and of the weakness which results from a splitting up of authority. If a legislature be constituted of three or more branches, the advantage is scarcely increased, the delay and weakness are immensely aggravated. Two chambers can be made to work together in a way almost impossible to more than two. As the proverb says, “Two’s company, three’s none.” If there be three chambers, two are sure to intrigue and likely to combine against the third. The difficulties of carrying a measure without sacrificing its unity of principle, of fixing responsibility, of securingEdition: current; Page: [167] the watchful attention of the public, serious with two chambers, become enormous with three or more.

To these considerations there was added the practical ground that the division of Congress into two houses supplied a means of settling the dispute which raged between the small and the large states. The latter contended for a representation of the states in Congress proportioned to their respective populations, the former for their equal representation as sovereign commonwealths. Both were satisfied by the plan which created two chambers in one of which the former principle, in the other of which the latter principle was recognized. The country remained a federation in respect of the Senate, it became a nation in respect of the House: there was no occasion for a third chamber.

The respective characters of the two bodies are wholly unlike those of the so-called upper and lower chambers of Europe. In Europe there is always a difference of political complexion generally resting on a difference in personal composition. There the upper chamber represents the aristocracy of the country, or the men of wealth, or the high officials, or the influence of the Crown and court; while the lower chamber represents the multitude. Between the Senate and the House there is no such difference. Both equally represent the people, the whole people, and nothing but the people. The individual members come from the same classes of the community; though in the Senate, as it has more rich men (in proportion to numbers) than has the House, the influence of capital has latterly been more marked. Both have been formed by the same social influences; and the social pretensions of a senator expire with his term of office. Both are possessed by the same ideas, governed by the same sentiments, equally conscious of their dependence on public opinion. The one has never been, like the English House of Commons, a popular pet, the other never, like the English House of Lords, a popular bugbear.

What is perhaps stranger, the two branches of Congress have not exhibited that contrast of feeling and policy which might be expected from the different methods by which they are chosen. In the House the large states are predominant: ten out of forty-eight (less than one-fourth) return an absolute majority of the 443 representatives. In the Senate these same ten states have only twenty members out of ninety-six, less than a fourth of the whole. In other words, these ten states are more than sixteen times as powerful in the House as they are in the Senate. But as the House has never been the organ of the large states, nor prone to act in their interest, so neither has the Senate been the stronghold of the small states, for American politics haveEdition: current; Page: [168] never turned upon an antagonism between these two sets of commonwealths. Questions relating to states’ rights and the greater or less extension of the powers of the national government have played a leading part in the history of the Union. But although small states might be supposed to be specially zealous for states’ rights, the tendency to uphold them has been no stronger in the Senate than in the House. In one phase of the slavery struggle the Senate happened to be under the control of the slaveholders while the House was not; and then of course the Senate championed the sovereignty of the states. But this attitude was purely accidental, and disappeared with its transitory cause.

The real differences between the two bodies have been indicated in speaking of the Senate, and the consequent greater facilities for debate, to the somewhat superior capacity of its members, to the habits which its executive functions form in individual senators, and have formed in the whole body.

In Europe, where the question as to the utility of second chambers is actively canvassed, two objections are made to them, one that they deplete the first or popular chamber of able men, the other that they induce deadlocks and consequent stoppage of the wheels of government. On both arguments light may be expected from American experience.

Although the Senate does draw off from the House many of its ablest men, it is not clear, paradoxical as the observation may appear, that the House would be much the better for retaining those men. The faults of the House are mainly due, not to want of talent among individuals, but to its defective methods, and especially to the absence of leadership. These are faults which the addition of twenty or thirty able men would not cure. Some of the committees would be stronger, and so far the work would be better done. But the House as a whole would not (assuming its rules and usages to remain what they are now) be distinctly a greater power in the country. On the other hand, the merits of the Senate are largely due to the fact that it trains to higher efficiency the ability which it has drawn from the House, and gives that ability a sphere in which it can develop with better results. Were the Senate and the House thrown into one, the country might suffer more by losing the Senate than it would gain by improving the House, for the united body would have the qualities of the House and not those of the Senate.

Collisions between the two houses are frequent. Each is jealous and combative. Each is prone to alter the bills that come from the other; and the Senate in particular knocks about remorselessly those favourite childrenEdition: current; Page: [169] of the House, the appropriation bills. The fact that one house has passed a bill goes but a little way in inducing the other to pass it; the Senate would reject twenty House bills as readily as one. Deadlocks, however, disagreements over serious issues which stop the machinery of administration, are not common. They rarely cause excitement or alarm outside Washington, because the country, remembering previous instances, feels sure they will be adjusted, and knows that either house would yield were it unmistakably condemned by public opinion. The executive government goes on undisturbed, and the worst that can happen is the loss of a bill which may be passed some months later. Even as between the two bodies there is no great bitterness in these conflicts, because the causes of quarrel do not lie deep. Sometimes it is self-esteem that is involved, the sensitive self-esteem of an assembly. Sometimes one or other house is playing for a party advantage. That intensity which in the similar contests of Europe arises from class feeling is absent, because there is no class distinction between the two American chambers. Thus the country seems to be watching a fencing match rather than a combat à outrance.

I dwell upon this substantial identity of character in the Senate and the House because it explains the fact, surprising to a European, that two perfectly coordinate authorities, neither of which has any more right than its rival to claim to speak for the whole nation, manage to get along together. Their quarrels are professional and personal rather than conflicts of adverse principles. The two bodies are not hostile elements in the nation, striving for supremacy, but servants of the same master, whose word of rebuke will quiet them.

It must, however, be also remembered that in such countries as England, France, and Italy, the popular chamber stands in very close relation with the executive government, which it has virtually installed and which it supports. A conflict between the two chambers in such countries is therefore a conflict to which the executive is a party, involving issues which may be of the extremest urgency; and this naturally intensifies the struggle. For the House of Lords in England or the Senate in Italy to resist a demand for legislation made by the ministry, who are responsible for the defence and peace of the country, and backed by the representative House, is a more serious matter than almost any collision between the Senate and the House can be in America.2

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The United States is the only great country in the world (for the Australian Commonwealth is scarcely an exception) in which the two houses are really equal and coordinate. Such a system could hardly work, and therefore could not last, if the executive were the creature of either or of both, nor unless both were in touch with the sovereign people, although that touch is, owing to the system of nominations (see Part III post), not so close as it appears to be.

When each chamber persists in its own view, the regular proceeding is to appoint a committee of conference, consisting of three members of the Senate and three of the House, sometimes however of a larger number. These six meet in secret, and generally settle matters by a compromise, which enables each side to retire with honour. When appropriations are involved, a sum intermediate between the smaller one which the House proposes to grant and the larger one desired by the Senate is adopted. If no compromise can be arranged, and if the action of the president, who may conceivably give his moral support (backed by the possibility of a veto) to one or another chamber, does not intervene, the conflict continues till one side yields or it ends by an adjournment, which of course involves the failure of the measure disagreed upon. The House at one time tried to coerce the Senate into submission by adding “riders,” as they are called, to appropriation bills, i.e., annexing or “tacking” (to use the English expression) pieces of general legislation to bills granting sums of money. This puts the Senate in the dilemma of either accepting the unwelcome rider, or rejecting the whole bill, and thereby withholding from the executive the funds it needs. This happened in 1855 and 1856. However, the Senate stood firm, and the House gave way. The device had previously been attempted (in 1849) by the Senate in tacking a proslavery provision to an appropriation bill which it was returning to the House, and it was revived by both houses against President Andrew Johnson in 1867.

In a contest the Senate usually, though not invariably, gets the better of the House. It is smaller, and can therefore more easily keep its majority together; its members are more experienced; and it has the great advantage of being permanent, whereas the House is a transient body. The Senate can hold out, because if it does not get its way at once against the House, it may do so when a new House comes up to Washington. The House cannot afford to wait, because the hour of its own dissolution is at hand. Besides, while the House does not know the Senate from inside, the Senate, many of whose members have sat in the House, knows all the “ins and outs” of its rival, can gauge its strength and play upon its weakness.

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the national government General Observations on Congress fpage="171" lpage="186"
chapter 19

General Observations on Congress

After this inquiry into the composition and working of each branch of Congress, it remains for me to make some observations which apply to both houses, and which may tend to indicate the features that distinguish them from the representative assemblies of the Old World. The English reader must bear in mind three points which, in following the details of the last few chapters, he may have forgotten. The first is that Congress is not, like the parliaments of England, France, and Italy, a sovereign assembly, but is subject to the Constitution, which only the people can change. The second is, that it neither appoints nor dismisses the executive government, which springs directly from popular election. The third is, that its sphere of legislative action is limited by the existence of nearly fifty governments in the several states, whose authority is just as well based as its own, and cannot be curtailed by it.

I. The choice of members of Congress is locally limited by law and by custom. Under the Constitution every representative and every senator must when elected be an inhabitant of the state whence he is elected. Moreover, state law has in many and custom practically in all states, established that a representative must be resident in the congressional district which elects him.1 The only exceptions to this practice occur in large cities where occasionally a man is chosen who lives in a different district of the city from that which returns him; but such exceptions are extremely rare.2 ThisEdition: current; Page: [172] restriction, inconvenient as it is both to candidates, whose field of choice in seeking a constituency it narrows, and to constituencies, whom it debars from choosing persons, however eminent, who do not reside in their midst, seems to Americans so obviously reasonable that few persons, even in the best educated classes, will admit its policy to be disputable. In what are we to seek the causes of this opinion?

Firstly. In the existence of states, originally separate political communities, still for many purposes independent, and accustomed to consider the inhabitant of another state as almost a foreigner. A New Yorker, Pennsylvanians would say, owes allegiance to New York; he cannot feel and think as a citizen of Pennsylvania, and cannot therefore properly represent Pennsylvanian interests. This sentiment has spread by a sort of sympathy, this reasoning has been applied by a sort of analogy, to the counties, the cities, the electoral districts of the state itself. State feeling has fostered local feeling; the locality deems no man a fit representative who has not by residence in its limits, and by making it his political home, the place where he exercises his civic rights, become soaked with its own local sentiment.

Secondly. Much of the interest felt in the proceedings of Congress relates to the raising and spending of money. Changes in the tariff may affect the industries of a locality; or a locality may petition for an appropriation of public funds to some local public work, the making of a harbour, or the improvement of the navigation of a river. In both cases it is thought that no one but an inhabitant can duly comprehend the needs or zealously advocate the demands of a neighbourhood.

Thirdly. Inasmuch as no high qualities of statesmanship are expected from a congressman, a district would think it a slur to be told that it ought to look beyond its own borders for a representative; and as the post is a paid one, the people feel that a good thing ought to be kept for one of themselves rather than thrown away on a stranger. It is by local political work, organizing, canvassing, and haranguing, that a party is kept going: and this work must be rewarded.

A perusal of the chapter of the Federalist, which argues that one representative for thirty thousand inhabitants will sufficiently satisfy republican needs, suggests another reflection. The writer refers to some who held a numerous representation to be a democratic institution, because it enabled every small district to make its voice heard in the national Congress. SuchEdition: current; Page: [173] representation then existed in the state legislatures. Evidently the habits of the people were formed by these state legislatures, in which it was a matter of course that the people of each township or city sent one of themselves to the assembly of the state. When they came to return members to Congress, they followed the same practice. A stranger had no means of making himself known to them and would not think of offering himself. That the habits of England are different may be due, so far as the eighteenth century is concerned, to the practice of borough-mongering, under which candidates unconnected with the place were sent down by some influential person, or bought the seat from the corrupt corporation or the limited body of freemen. Thus the notion that a stranger might do well enough for a borough grew up, while in counties it remained, till 1885, a maxim that a candidate ought to own land in the county—the old law required a freehold qualification somewhere3 —or ought to live in, or ought at the very least (as I once heard a candidate, whose house lay just outside the county for which he was standing, allege on his own behalf) to look into the county from his window while shaving in the morning.4 The English practice might thus seem to be an exception due to special causes, and the American practice that which is natural to a free country, where local self-government is fully developed and rooted in the habits of the people. It is from their local government thatEdition: current; Page: [174] the political ideas of the American people have been formed; and they have applied to their state assemblies and their national assembly the customs which grew up in the smaller area.5

These are the best explanations I can give of a phenomenon which strikes Europeans all the more because it exists among a population more unsettled and migratory than any in the Old World. But they leave me still surprised at this strength of local feeling, a feeling not less marked in the new regions of the Far West than in the venerable commonwealths of Massachusetts and Virginia. Fierce as is the light of criticism which beats upon every part of that system, this point remains uncensured, because assumed to be part of the order of nature.

So far as the restriction to residents in a state is concerned it is intelligible. The senator was originally a sort of ambassador from his state. He is chosen by the legislature or collective authority of his state. He cannot well be a citizen of one state and represent another. Even a representative in the House from one state who lived in another might be perplexed by a divided allegiance, though there are groups of states, such as those of the Northwest, whose great industrial interests are substantially the same. But what reason can there be for preventing a man resident in one part of a state from representing another part, a Philadelphian, for instance, from being returned for Pittsburgh, or a Bostonian for Pittsfield in the west of Massachusetts? In Europe it is not found that a member is less active or successful in urging the local interests of his constituency because he does not live there. He is often more successful, because more personally influential or persuasive than any resident whom the constituency could supply; and in case of a conflict of interests he always feels his efforts to be owing first to his constituents, and not to the place in which he happens to reside.

The mischief is twofold. Inferior men are returned, because there are many parts of the country which do not grow statesmen, where nobody, or at any rate nobody desiring to enter Congress, is to be found above a moderate level of political capacity. And men of marked ability and zeal are prevented from forcing their way in. Such men are produced chiefly inEdition: current; Page: [175] the great cities of the older states. There is not room enough there for nearly all of them, but no other doors to Congress are open. Boston, Chicago, New York, Philadelphia, could furnish six or eight times as many good members as there are seats in these cities. As such men cannot enter from their place of residence, they do not enter at all, and the nation is deprived of the benefit of their services. Careers are moreover interrupted. A promising politician may lose his seat in his own district through some fluctuation of opinion, or perhaps because he has offended the local wire-pullers by too much independence. Since he cannot find a seat elsewhere he is stranded; his political life is closed, while other young men inclined to independence take warning from his fate. Changes in the state laws would not remove the evil, for the habit of choosing none but local men is rooted so deeply that it might probably long survive the abolition of a restrictive law, and it is just as strong in states where no such law exists.6

II. Every senator and representative receives a salary at present fixed at $7,500 per annum, besides an allowance (called mileage) of 20 cents (10d.) per mile for travelling expenses for one journey to and from Washington, $1,500 for clerk hire, and a sum for stationery. The salary is looked upon as a matter of course. It was not introduced for the sake of enabling working men to be returned as members, but on the general theory that all public work ought to be paid for.7 The reasons for it are stronger than in England or France, because the distance to Washington from most parts of the United States is so great, and the attendance required there so continuous, that a man cannot attend to his profession or business while sitting in Congress. If he loses his livelihood in serving the community, the community ought to compensate him, not to add that the class of persons whose private means put them above the need of a lucrative calling, or of compensation for interrupting it, is comparatively small even now, and hardly existed when the Constitution was framed. Cynics defend the payment of congressmen on another ground, viz., that “they would steal worse if they didn’t get it,” and would make politics, as Napoleon made war, support itself. Be the thing bad or good, it is at any rate necessary, so that no one talks of abolishing it. For that reason its existence furnishes no argument for its introduction into a small country with a large leisured and wealthy class. InEdition: current; Page: [176] fact, the conditions of European countries are so different from those of America that one must not cite American experience either for or against the remuneration of legislative work. I do not believe that the practice works ill by preventing good men from entering politics, for they feel no more delicacy in accepting their $7,500 than an English duke does in drawing his salary as a secretary of state. It may strengthen the tendency of members to regard themselves as mere delegates, but that tendency has other and deeper roots. It contributes to keep up a class of professional politicians, for the salary, though small in comparison with the incomes earned by successful merchants or lawyers, is a prize to men of the class whence professional politicians mostly come. But those European writers who describe it as the formative cause of that class are mistaken. That class would have existed had members not been paid, would continue to exist if payment were withdrawn. On the other hand, the benefit which Europeans look for from the payment of legislators, viz., the introduction of a large number of representative working men, has hitherto been little desired and even less secured. Few such persons appear as candidates in America; and until recently the working class did not deem itself, nor think of acting as, a distinct body with special interest.8

III. A congressman’s tenure of his place, though tending to grow longer, is still usually short. Senators are sometimes returned for two, four, or (in a few of the older states) even for five successive terms by the legislatures of their states, although it may befall even the best of them to be thrown out by a change in the balance of parties, or by the intrigues of an opponent. But a member of the House can seldom feel safe in the saddle. If he is so eminent as to be necessary to his party, or if he maintains intimate relations with the leading local wire-pullers of his district, he may in the Eastern and Middle, and still more in the Southern states, hold his ground for four or five Congresses, i.e., for eight or ten years. Few do more than this. In the West a member is fortunate if he does even this. Out there a seat is regarded as a good thing which ought to go round. It has a salary. It sends a man, free of expense, for two winters and springs to Washington and lets him and his wife and daughters see something of the fine world there. Local leaders cast sheep’s eyes at the seat, and make more or less open bargains between themselves as to the order in which they shall enjoy it. So far from its being a reason for reelecting a man that he has been a member already, it was, and is still in parts of the West, a reason for passing him by, andEdition: current; Page: [177] giving somebody else a turn. Rotation in office, dear to the Democrats of Jefferson’s school a century ago, still charms the less educated, who see in it a recognition of equality, and have no sense of the value of special knowledge or training. They like it for the same reason that the democrats of Athens liked the choice of magistrates by lot. It is a recognition and application of equality. An ambitious congressman is therefore forced to think day and night of his renomination, and to secure it not only by procuring, if he can, grants from the federal treasury for local purposes, and places for the relatives and friends of the local wire-pullers who control the nominating conventions, but also by sedulously “nursing” the constituency during the vacations. No habit could more effectually discourage noble ambition or check the growth of a class of accomplished statesmen. There are few walks of life in which experience counts for more than it does in parliamentary politics. It is an education in itself, an education in which the quick-witted Western American would make rapid progress were he suffered to remain long enough at Washington. At present he is not suffered, for nearly one-half of each successive House has usually consisted of new men, while the old members are too much harassed by the trouble of procuring their reelection to have time or motive for the serious study of political problems. This is what comes of the notion that politics is neither a science, nor an art, nor even an occupation, like farming or storekeeping, in which one learns by experience, but a thing that comes by nature, and for which one man of common sense is as fit as another.9

IV. The last-mentioned evil is aggravated by the short duration of a Congress. Short as it seems, the two years’ term was warmly opposed, when the Constitution was framed, as being too long.10 The constitutions of the several states, framed when they shook off the supremacy of the British Crown, all fixed one year, except the ultrademocratic Connecticut and Rhode Island, where under the colonial charters a legislature met every six months, and South Carolina, which had fixed two years. So essential to republicanism was this principle deemed, that the maxim “where annual elections end tyranny begins” had passed into a proverb; and the authors of the Federalist were obliged to argue that the limited authority of Congress, watched by the executive on one side, and the state legislatures on the other, would prevent so long a period as two years from proving dangerous toEdition: current; Page: [178] liberty, while it was needed in order to enable the members to master the laws and understand the conditions of different parts of the Union. At present the two years’ term is justified on the ground that it furnishes a proper check on the president by interposing an election in the middle of his term. One is also told that these frequent elections are necessary to keep up popular interest in current politics, nor do some fail to hint that the temptations to jobbing would overcome the virtue of members who had a longer term before them. Where American opinion is unanimous, it would be presumptuous for a stranger to dissent. Yet the remark may be permitted that the dangers originally feared have proved chimerical. There is no country whose representatives are more dependent on popular opinion, more ready to trim their sails to the least breath of it. The public acts, the votes, and speeches of a member from Oregon or Texas can be more closely watched by his constituents than those of a Virginian member could be watched in 1789.11 And as the frequency of elections involves inexperienced members, the efficiency of Congress suffers.

V. The numbers of the two American houses seem small to a European when compared on the one hand with the population of the country, on the other with the practice of European states. The Senate has 96 members against the British House of Lords with over 600, and the French Senate with 300. The House has 443 against the British House of Commons with 670, and the French and Italian chambers with 584 and 508 respectively.

The Americans, however, doubt whether both their houses have not already become too large. They began with 26 in the Senate, 65 in the House, numbers then censured as too small, but which worked well, and gave less encouragement to idle talk and vain display than the crowded halls of today. The inclination of wise men is to try to diminish further increase when the number of 400 has been reached, for they perceive that the House already suffers from disorganization, and fear that a much larger one would prove unmanageable.12

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VI. American congressmen are more assiduous in their attendance than the members of most European legislatures. The great majority not only remain steadily at Washington through the session, but are usually to be found in the Capitol, often in their chamber itself, while a sitting lasts. There is therefore comparatively little trouble in making the quorum of one-half,13 except when the minority endeavours to prevent its being made, whereas in England the House of Lords, whose quorum is three, has seldom thirty peers present, and the House of Commons often finds a difficulty, especially during the dinner hour, in securing its modest quorum of forty.14 This requirement of a high quorum, which is prescribed in the Constitution, has doubtless helped to secure a good attendance. Other causes are the distance from Washington of the residences of most members, so that it is not worth while to take the journey home for a short sojourn, and the fact that very few attempt to carry on any regular business or profession while the session lasts. Those who are lawyers, or merchants, or manufacturers, leave their work to partners; but many are politicians and nothing else. In Washington, a city without commerce or manufactures, political or semi-political intrigue is the only gainful occupation possible; for the Supreme Court practice is conducted almost entirely by lawyers coming from a distance. The more democratic a county is, so much the more regular is the attendance, so much closer the attention to the requests of constituents which a member is expected to render.15 Apart from that painful duty of findingEdition: current; Page: [180] places for constituents which consumes so much of a congressman’s time, his duties are not heavier than those of a member of the English Parliament who desires to keep abreast of current questions. The sittings are neither so long nor so late as those of the House of Commons; the questions that come up not so multifarious, the blue books to be read less numerous, the correspondence (except about places) not more trublesome. The position of senator is more onerous than that of a member of the House, not only because his whole state, and not merely a district, has a direct claim upon him, but also because, as one of a small body, he incurs a larger individual responsibility, and sits upon two or more committees instead of on one only.

VII. The want of opportunities for distinction in Congress is one of the causes which make a political career unattractive to most Americans.16 It takes a new member at least a session to learn the procedure of the House. Full dress debates are rare, newspaper reports of speeches delivered are curt and little read. The most serious work is done in committees; it is not known to the world, and much of it results in nothing, because many bills which a committee has considered are perhaps never even voted on by the House. A place on a good House committee is to be obtained by favour, and a high-spirited man might find it hard to secure it. Ability, tact, and industry make their way in the long run in Congress, as they do everywhere else. But in Congress there is, for most men, no long run. Only very strong local influence, or some remarkable party service rendered, will enable a member to keep his seat through two or three successive Congresses. Nowhere therefore does the zeal of a young politician sooner wax cold than in the House of Representatives. Unfruitful toil, the toil of turning a crank which does nothing but register its own turnings, or of writing contributions which an editor steadily rejects, is of all things the most disheartening. It is more disheartening than the nonrequital of merit; for that at least spares the self-respect of the sufferer. Now toil for the public is usually unfruitful in the House of Representatives, indeed in all houses. But toil for the pecuniary interests of one’s constituents and friends is fruitful, for it obliges people, it wins the reputation of energy and smartness, it has the promise not only of a renomination, but of that possible seat in the Senate which is the highest ambition of the congressman. Power, fame, perhaps even riches, sit upon that pinnacle. But the thin spun life is usually slit before the fair guerdon has been found. Few young men of high gifts and fine tastes look forwardEdition: current; Page: [181] to entering public life, for the probable disappointments and vexations of a life in Congress so far outweigh its attractions that nothing but exceptional ambition or a strong sense of public duty suffices to draw such men into it. Law, education, literature, the higher walks of commerce, finance, or railway work, offer a better prospect of enjoyment or distinction.

Inside Washington, the representative is dwarfed by the senator and the federal judges. Outside Washington he enjoys no great social consideration,17 especially in the Northern states, for in the South his position retains some of its old credit. His opinion is not quoted with respect. He seems to move about under a prima facie suspicion of being a jobber, and to feel that the burden of proof lies on him to show that the current jests on this topic do not apply to him. Rich men therefore do not seek, as in England, to enter the legislature in order that they may enter society. They will get no entree which they could not have secured otherwise. Nor is there any opportunity for the exercise of those social influences which tell upon members, and still more upon members’ wives and daughters, in European legislatures. It may of course be worth while to “capture” a particular senator, and for that purpose to begin by capturing his wife. But the salon plays no sensible part in American public life.

The country does not go to Congress to look for its presidential candidates as England looks to Parliament for its prime ministers. The opportunities by which a man can win distinction there are few. He does not make himself familiar to the eye and ear of the world. Congress, in short, is not a focus of political life as are the legislatures of France, Italy, and England. Though it has become more powerful against the several states than it was formerly, though it has extended its arms in every direction, and sometimes encroached upon the executive, it has not become more interesting to the people, nor strengthened its hold on their respect and affection.

VIII. Neither in the Senate nor in the House are there any recognized leaders. There is no ministry, no ex-ministry leading an opposition, no chieftains at the head of definite groups who follow their lead, as the Irish Nationalist members in the British Parliament follow Mr. Parnell, and a large section of the Left in the French and German chambers followed M. Clemenceau and Dr. Windthorst. So too, there did not exist, until 1900, aEdition: current; Page: [182] regularly working agency for securing either that members shall be apprised of the divisions to be expected, or that they should vote in those divisions in a particular way.

To anyone familiar with the methods of the English Parliament this seems incomprehensible. How, he asks, can business go on at all, how can each party make itself felt as a party with neither leader nor whips?

I have mentioned the whips. Let me say a word on this vital, yet even in England little appreciated, part of the machinery of constitutional government. Each party in the House of Commons has, besides its leaders, a member of the House nominated by the chief leader as his aide-de-camp, and called the whipper-in, or, for shortness, the whip. The whip’s duties are (1) to inform every member belonging to the party when an important division may be expected, and if he sees the member in or about the House, to keep him there until the division is called; (2) to direct the members of his own party how to vote; (3) to obtain pairs for them if they cannot be present to vote; (4) to “tell,” i.e., count the members in every party division; (5) to “keep touch” of opinion within the party, and convey to the leader a faithful impression of that opinion, from which the latter can judge how far he may count on the support of his whole party in any course he proposes to take. A member in doubt how he shall vote on a question with regard to which he has no opinion of his own, goes to the whip for counsel. A member who without grave cause stays away unpaired from an important division to which the whip has duly summoned him is guilty of a misdemeanour only less flagrant than that of voting against his party. A ministerial whip is further bound to “keep a house,” i.e., to secure that when government business is being considered there shall always be a quorum of members present, and of course also to keep a majority, i.e., to have within reach a number of supporters sufficient to give the ministry a majority on any ministerial division.18 Without the constant presence and activity of the ministerial whip the wheels of government could not go on for a day, because the ministry would be exposed to the risk of casual defeats which would destroy their credit and might involve their resignation. Similarly the opposition, and any third or fourth party, find it necessary to have theirEdition: current; Page: [183] whip, because it is only thus that they can act as a party, guide their supporters, and bring their full strength to bear on a division. Hence when a new party is formed, its first act, that by which it realizes and proclaims its existence, is to name whips, to whom its adherents may go for counsel, and who may in turn receive their suggestions as to the proper strategy for the party to adopt.19 So essential are these officers to the discipline of English parliamentary armies that an English politician’s first question when he sees Congress is, “Where are the whips?” his next, “How in the world do you get on without them?”

The answer to this question is threefold. Whips are not so necessary at Washington as at Westminster. A sort of substitute for them has been devised. Congress does to some extent suffer from the inadequacy of the substituted device.20

A division in Congress has not the importance it has in the House of Commons. There it may throw out the ministry. In Congress it never does more than affirm or negative some particular bill or resolution. Even a division in the Senate which involves the rejection of a treaty or of an appointment to some great office, does not disturb the tenure of the executive. Hence it is not essential to the majority that its full strength should be always at hand, nor has a minority party any great prize set before it as the result of a successful vote.

Questions, however, arise in which some large party interest is involved. There may be a bill by which the party means to carry out its main views of policy or perhaps to curry favour with the people, or a resolution whereby it hopes to damage a hostile executive. In such cases it is important to bring up every vote. Accordingly at the beginning of every Congress a caucus committee is elected by the majority, and it becomes the duty of the chairman and secretary of this committee (to whom, in the case of a party bill supported by the majority, there is added the chairman of the committee to which that bill has been referred, necessarily a member of the majority) toEdition: current; Page: [184] act as whips, i.e., to give notice of important divisions by sending out a “call” to members of the party, and to take all requisite steps to have a quorum and a majority present to push through the bill or resolution to which the party stands committed. Mutatis mutandis (for of course it is seldom an object with the minority to secure a quorum), the minority take the same course to bring up their men on important divisions. In cases of gravity or doubt, where it is thought prudent to consult or to restimulate the party, the caucus committee convokes a caucus, i.e., a meeting of the whole party, at which the attitude to be assumed by the party is debated with closed doors, and a vote taken as to the course to be adopted.21 By this vote every member of the party is deemed bound, just as he would be in England by the request of the leader conveyed through the whip. Disobedience cannot be punished in Congress itself, except of course by social penalties; but it endangers the seat of the too independent member, for the party managers at Washington will communicate with the party managers in his district, and the latter will probably refuse to renominate him at the next election. The most important caucus of a Congress is that held at the opening to select the party candidate for the speakership, selection by the majority being of course equivalent to election. As the views and tendencies of the Speaker determine the composition of the committees, and thereby the course of legislation, his selection is a matter of supreme importance, and is preceded by weeks of intrigue and canvassing.

This process of “going into caucus” is the regular American substitute for recognized leadership, and has the advantage of seeming more consistent with democratic equality, because every member of the party has in theory equal weight in the party meeting. It is used whenever a line of policy has to be settled, or the whole party to be rallied for a particular party division. But of course it cannot be employed every day or for every bill. Hence when no party meeting has issued its orders, a member is free to vote as he pleases, or rather as he thinks his constituents please. If he knows nothing of the matter, he may take a friend’s advice, or vote as he hears some prominent man on his own side vote. Anyhow, his vote is doubtful, unpredictable; and consequently divisions on minor questions are uncertain. This is a further reason, added to the power of the standing committees,Edition: current; Page: [185] why there is a want of consistent policy in the action of Congress. As its leading men have comparatively little authority, and there are no means whereby a leader could keep his party together on ordinary questions, so no definite ideas run through its conduct and express themselves in its votes. It moves in zigzags.

The freedom thus enjoyed by members on minor questions has the interesting result of preventing dissensions and splits in the parties. There are substances which cohere best when their contact is loose. Fresh fallen snow keeps a smooth surface even on a steep slope, but when by melting and regelation it has become ice, cracks and rifts begin to appear. A loose hung carriage will hold together over a road whose roughness would strain and break a more solid one. Hence serious differences of opinion may exist in a congressional party without breaking its party unity, for nothing more is needed than that a solid front should be presented on the occasions, few in each session, when a momentous division arrives. The appearance of agreement is all the more readily preserved because there is little serious debating, so that the advocates of one view seldom provoke the other section of their party to rise and contradict them; while a member who dissents from the bulk of his party on an important issue is slow to vote against it, because he has little chance of defining and defending his position by an explanatory speech.

The congressional caucus has in troublous times to be supplemented by something like obedience to regular leaders. Mr. Thaddeus Stevens, for instance, led with recognized authority the majority of the House in its struggle with President Andrew Johnson. The Senate is rather more jealous of the equality of all its members. No senator can be said to have any authority beyond that of exceptional talent and experience; and of course a senatorial caucus, since it rarely consists of more than forty persons, is a better working body than a House caucus, which may exceed two hundred.22

The European reader may be perplexed by the apparent contradictions in what has been said regarding the party organization of Congress. “Is the American House after all,” he will ask, “more or less a party body than the British House of Commons? Is the spirit of party more or less strong in Congress than in the American people generally?”

For the purpose of serious party issues the House of Representatives isEdition: current; Page: [186] nearly as much a party body as the House of Commons. A member voting against his party on such an issue is more certain to forfeit his party reputation and his seat than is an English member. But for the purpose of ordinary questions, of issues not involving party fortunes, a representative is less bound by party ties than an English member, because he has neither leaders to guide him by their speeches nor whips by their private instructions.23 The apparent gain is that a wider field is left for independent judgment on nonpartisan questions. The real loss is that legislation becomes weak and inconsistent. This conclusion is not encouraging to those who expect us to get rid of party in our legislatures. A deliberative assembly is, after all, only a crowd of men; and the more intelligent a crowd is, so much the more numerous are its volitions; so much greater the difficulty of agreement. Like other crowds, a legislature must be led and ruled. Its merit lies not in the independence of its members, but in the reflex action of its opinion upon the leaders, in its willingness to defer to them in minor matters, reserving disobedience for the issues in which some great principle overrides both the obligation of deference to established authority and the respect due to special knowledge.

The above remarks answer the second question also. The spirit of party may seem to be weaker in Congress than in the people at large. But this is only because the questions which the people decide at the polls are always questions of choice between candidates for office. These are definite questions, questions eminently of a party character, because candidates represent in the America of today not principles but parties. When a vote upon persons occurs in Congress, Congress gives a strict party vote. Were the people to vote at the polls on matters not explicitly comprised within a party platform (as they do now in states which have adopted the initiative and referendum), there would be much greater uncertainty than Congress displays. The habit of joint action which makes the life of a party is equally intense in every part of the American system. But in England the existence of a ministry and opposition in Parliament sweeps within the circle of party action many topics which in America are left outside, and therefore Congress seems, but is not, less permeated than Parliament by party spirit.

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the national government The Relations of Congress to the President fpage="187" lpage="192"
chapter 20

The Relations of Congress to the President1

So far as they are legislative bodies, the House and the Senate have similar powers and stand in the same relation to the executive.2 We may therefore discuss them together, or rather the reader may assume that whatever is said of the House as a legislature is also true of the Senate.3

Although the Constitution forbids any federal official to be chosen a member of either the House or the Senate, there is nothing in it to prevent officials from speaking there; as indeed there is nothing to prevent either house from assigning places and the right to speak to anyone whom it chooses. In the early days Washington came down and delivered his opening speech. Occasionally he remained in the Senate during a debate, and even expressed his opinion there. When Hamilton, the first secretary of the treasury, prepared his famous report on the national finances, he asked the House whether they would hear him speak it, or would receive it in writing. They chose the latter course, and the precedent then set has been followed by subsequent ministers,4 while that set in 1801 by President Jefferson when he transmitted his message in writing instead of delivering a speech, hasEdition: current; Page: [188] been similarly respected by all his successors. Thus neither house now hears a member of the executive; and when a minister appears before a committee, he appears primarily as a witness to answer questions, rather than to state and argue his own case. There is therefore little direct intercourse between Congress and the administration, and no sense of interdependence and community of action such as exists in other parliamentary countries.5 Be it remembered also that a minister may never have sat in Congress, and may therefore be ignorant of its temper and habits. Six members of Mr. Cleveland’s cabinet, in 1888, and seven of Mr. Taft’s in 1909, had never had a seat in either house. The president himself, although he has been voted into office by his party, is not necessarily its leader, nor even one among its most prominent leaders. Hence he does not sway the councils and guide the policy of those members of Congress who belong to his own side. No duty lies on Congress to take up a subject to which he has called attention as needing legislation; and, in fact, the suggestions which he makes, year after year, are usually neglected, even when his party has a majority in both houses, or when the subject lies outside party lines. Members have sometimes complained of his submitting draft bills, although there are plenty of precedents for his doing so.

The president and his cabinet have no recognized spokesman in either house. A particular senator or representative may be in confidential communication with them, and be the instrument through whom they seek to act; but he would probably disavow rather than claim the position of an exponent of ministerial wishes. The president can of course influence members of Congress through patronage. He may give places to them or their friends; he may approve or veto bills in which they are interested; his ministers may allot lucrative contracts to their nominees. This power is considerable, but covert, for the knowledge that it was being used might damage the member in public estimation and expose the executive to imputations. The consequence of cutting off open relations has been to encourage secretEdition: current; Page: [189] influence, which may of course be used for legitimate purposes, but which, being exerted in darkness, is seldom above suspicion. When the president or a minister is attacked in Congress, it is not the duty of anyone there to justify his conduct. The accused official may send a written defence or may induce a member to state his case; but this method lacks the advantages of the European parliamentary system, under which the person assailed repels in debate the various charges, showing himself not afraid to answer fresh questions and grapple with new points. Thus by its exclusion from Congress the executive is deprived of the power of leading and guiding the legislature and of justifying in debate its administrative acts.

Next as to the power of Congress over the executive. Either house of Congress, or both houses jointly, can pass resolutions calling on the president or his ministers to take certain steps, or censuring steps they have already taken. The president need not obey such resolutions, need not even notice them. They do not shorten his term or limit his discretion.6 If the resolution be one censuring the act of a minister, the president does not escape responsibility by throwing over the minister, because the law makes him, and not his servant or adviser, responsible.

Either house of Congress can direct a committee to summon and examine a minister, who, though he may legally refuse to attend, very rarely refuses. The committee, when it has got him, can do nothing more than question him. He may evade their questions, may put them off the scent by dexterous concealments. He may with impunity tell them that he means to take his own course. To his own master, the president, he standeth or falleth.

Congress may refuse to the president the legislation he requests, and thus, by mortifying and embarrassing him, may seek to compel his compliance with its wishes. It is only a timid president, or a president greatly bent on accomplishing some end for which legislation is needed, who will be moved by such tactics.

Congress can pass bills requiring the president or any minister to do or abstain from doing certain acts of a kind hitherto left to his free will and judgment, may, in fact, endeavour to tie down the officials by prescribing certain conduct for them in great detail. The president will presumably veto such bills, as contrary to sound administrative policy. If, however, he signs them, or if Congress passes them over his veto, the further question mayEdition: current; Page: [190] arise whether they are within the constitutional powers of Congress, or are invalid as unduly trenching on the discretion which the Constitution leaves to the executive chief magistrate. If he (or a minister), alleging them to be unconstitutional, disobeys them, the only means of deciding whether he is right is by getting the point before the Supreme Court as an issue of law in some legal proceeding. This cannot always be done. If it is done, and the court decide against the president, then if he still refuses to obey, nothing remains but to impeach him.

Impeachment, of which an account has already been given, is the heaviest piece of artillery in the congressional arsenal, but because it is so heavy it is unfit for ordinary use. It is like a hundred-ton gun which needs complex machinery to bring it into position, an enormous charge of powder to fire it, and a large mark to aim at. Or to vary the simile, impeachment is what physicians call a heroic medicine, an extreme remedy, proper to be applied against an official guilty of political crimes, but ill adapted for the punishment of small transgressions. Although the one president (Andrew Johnson) against whom it has been used had for two years constantly, and with great intemperance of language, so defied and resisted Congress that the whole machinery of government had been severely strained, yet the Senate did not convict him, because no single offence had been clearly made out. Thus impeachment does not tend to secure, and indeed was never meant to secure, the cooperation of the executive with Congress.

It accordingly appears that Congress cannot compel the dismissal of any official. It may investigate his conduct by a committee and so try to drive him to resign. It may request the president to dismiss him, but if his master stands by him and he sticks to his place, nothing more can be done. He may of course be impeached, but one does not impeach for mere incompetence or laxity, as one does not use steam hammers to crack nuts. Thus we arrive at the result that while Congress may examine the servants of the public to any extent, may censure them, may lay down rules for their guidance, it cannot get rid of them. It is as if the directors of a company were forced to go on employing a manager whom they had ceased to trust, because it was not they but the stockholders who had appointed him.

There remains the power which in free countries has been long regarded as the citadel of parliamentary supremacy, the power of the purse. The Constitution keeps the president far from this citadel, granting to Congress the sole right of raising money and appropriating it to the service of the state. Its management of national finance is significantly illustrative of the plan which separates the legislative from the executive. In this supremely important matter, the administration, instead of proposing and supervising,Edition: current; Page: [191] instead of securing that each department gets the money that it needs, that no money goes where it is not needed, that revenue is procured in the least troublesome and expensive way, that an exact yearly balance is struck, that the policy of expenditure is self-consistent and reasonably permanent from year to year, is by its exclusion from Congress deprived of influence on the one hand, of responsibility on the other. The office of Finance Minister is put into commission, and divided between the chairmen of several unconnected committees of both houses. A mass of business which specially needs the knowledge, skill, and economical conscience of a responsible ministry, is left to committees which are powerful but not responsible, and to houses whose nominal responsibility is in practice sadly weakened by their want of appropriate methods and organization.

How far, then, does the power of the purse enable Congress to control the president? Much less than in European countries. Congress may check any particular scheme which the president favours by refusing supplies for it. If he were to engage in military operations—he cannot under the Constitution “declare war” for that belongs to Congress—the House might paralyse him by declining to vote the requisite army appropriations. If he were to repeat the splendid audacity of Jefferson by purchasing a new territory, they could withhold the purchase money. But if, keeping within the limits of his constitutional functions, he takes a different course from that they recommend, if for instance he should refuse, at their repeated requests, to demand the liberation of American citizens pining in foreign dungeons, or to suppress disorders in a state whose government had requested federal intervention, they would have to look on. To withhold the ordinary supplies, and thereby stop the machine of government, would injure the country and themselves far more than the president. They would, to use a common expression, be cutting off their nose to spite their face. They could not lawfully refuse to vote his salary, for that is guaranteed to him by the Constitution. They could not, except by a successful impeachment, turn him out of the White House or deprive him of his title to the obedience of all federal officials.

Accordingly, when Congress has endeavoured to coerce the president by the use of its money powers, the case being one in which it could not attack him by ordinary legislation (either because such legislation would be unconstitutional, or for want of a two-thirds majority), it has proceeded not by refusing appropriations altogether, as the British House of Commons would do in like circumstances, but by attaching what is called a “rider” to an appropriation bill. Many years ago the House formed, and soon began to indulge freely in, the habit of inserting in bills appropriating money toEdition: current; Page: [192] the purposes of the public service, provisions relating to quite different matters, which there was not time to push through in the ordinary way. In 1867 Congress used this device against President Johnson, with whom it was then at open war, by attaching to an army appropriation bill a clause which virtually deprived the president of the command of the army, entrusting its management to the general highest in command (General Grant). The president yielded, knowing that if he refused the bill would be carried over his veto by a two-thirds vote; and a usage already mischievous was confirmed. In 1879, the majority in Congress attempted to overcome, by the same weapon, the resistance of President Hayes to certain measures affecting the South which they desired to pass. They tacked these measures to three appropriation bills, army, legislative, and judiciary. The minority in both houses fought hard against the riders, but were beaten. The president vetoed all three bills, and Congress was obliged to pass them without the riders. Next session the struggle recommenced in the same form, and the president, by rejecting the money bills again compelled Congress to drop the tacked provisions. This victory, which was of course due to the fact that the dominant party in Congress could not command a two-thirds majority, was deemed to have settled the question as between the executive and the legislature, and may have permanently discouraged the latter from recurring to the same tactics.

President Hayes in his veto messages argued strongly against the whole practice of tacking other matters to money bills; and a rule of the House (not always strictly observed) now declares that an appropriation bill shall not carry any new legislation. It has certainly caused great abuses, and is forbidden by the constitutions of many states. A president once urged upon Congress the desirability of so amending the federal Constitution as to enable him, as a state governor is by some recent state constitutions allowed to do, to veto single items in an appropriation bill without rejecting the whole bill. Such an amendment is generally desired by enlightened men, because it would enable the executive to do its duty by the country in defeating many petty jobs which are now smuggled into these bills, without losing the supplies necessary for the public service which the bills provide. The change seems a small one, but its adoption would cure one of the defects due to the absence of ministers from Congress, and save the nation millions of dollars a year, by diminishing wasteful expenditure on local purposes. But the process of amending the Constitution is so troublesome that even a change which involves no party issues may remain unadopted long after the best opinion has become unanimous in its favour.

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the national government The Legislature and the Executive fpage="193" lpage="203"
chapter 21

The Legislature and the Executive

The fundamental characteristic of the American national government is its separation of the legislative, executive, and judicial departments. This separation is the merit which the Philadelphia Convention chiefly sought to attain, and which the Americans have been wont to regard as most completely secured by their Constitution. In Europe, as well as in America, men are accustomed to talk of legislation and administration as distinct. But a consideration of their nature will show that it is not easy to separate these two departments in theory by analysis, and still less easy to keep them apart in practice. We may begin by examining their relations in the internal affairs of a nation, reserving foreign policy for a later part of the discussion.

People commonly think of the legislature as the body which lays down general rules of law, which prescribes, for instance, that at a man’s death his children shall succeed equally to his property, or that a convicted thief shall be punished with imprisonment, or that a manufacturer may register his trade mark. They think of the executive as the person or persons who do certain acts under those rules, who lock up convicts, register trade marks, carry letters, raise and pay a police and an army. In finance the legislature imposes a tax, the executive gathers it, and places it in the treasury or in a bank, subject to legislative orders; the legislature votes money by a statute, appropriating it to a specific purpose; the executive draws it from the treasury or bank, and applies it to that purpose, perhaps in paying the army, perhaps in building a bridge.

The executive is, in civilized countries, itself the creature of the law, deriving therefrom its existence as well as its authority. Sometimes, as in France, it is so palpably and formally. The president of the Republic has been called into existence by the Constitution. Sometimes, as in England, it is so substantially, though not formally. The English Crown dates from aEdition: current; Page: [194] remote antiquity, when custom and belief had scarcely crystallized into law; and though Parliament has repeatedly determined its devolution upon particular persons or families—it is now held under the Act of Settlement—no statute has ever affected to confer upon it its rights to the obedience of the people. But practically it holds its powers at the pleasure of Parliament, which has in some cases expressly limited them, and in others given them a tacit recognition. We may accordingly say of England and of all constitutional monarchies as well as of republics that the executive in all its acts must obey the law, that is to say, if the law prescribes a particular course of action, the executive must take that course; if the law forbids a particular course, the executive must avoid it.

It is therefore clear that the extent of the power of the executive magistrate depends upon the particularity with which the law is drawn, that is, upon the amount of discretion which the law leaves to him. If the law is general in its terms, the executive has a wide discretion. If, for instance, the law prescribes simply that a duty of ten per cent ad valorem be levied on all manufactured goods imported, it rests with the executive to determine by whom and where that duty shall be collected, and on what principles it shall be calculated. If the law merely creates a post office, the executive may fix the rate of payment for letters and parcels, and the conditions on which they will be received and delivered. In these cases the executive has a large field within which to exert its free will and choice of means. Power means nothing more than the extent to which a man can make his individual will prevail against the wills of other men, so as to control them. Hence, when the law gives to a magistrate a wide discretion, he is powerful, because the law clothes his will with all the power of the state. On the other hand, if the law goes into very minute details, directing this to be done and that not to be done, it narrows the discretion of the executive magistrate. His personal will and choice are gone. He can no longer be thought of as a coordinate power in the state. He becomes a mere servant, a hand to carry out the bidding of the legislative brain, or, we may even say, a tool in the legislative hand.

As the legislature has been the body through which the people have chiefly asserted their authority, we find that lawmaking assemblies, whether primary or representative, have always sought to extend their province and to subject the executive to themselves. They have done this in several ways. In the democracies of ancient Greece the assembly of all citizens not only passed statutes of general application, but made peace or declared war; ordered an expedition to start for Sphacteria, and put Cleon at the head ofEdition: current; Page: [195] it; commanded the execution of prisoners or reprieved them; conducted, in fact, most of the public business of the city by a series of direct decrees, all of which were laws, i.e., declarations of its sovereign will. It was virtually the government. The chief executive officers of Athens, called the generals, had little authority except over the military operations in the field. Even the Roman Constitution, a far more highly developed and scientific, though also a complicated and cumbrous system, while it wisely left great discretion to the chief magistrates (requiring them, however, to consult the Senate), yet permitted the passing pro re nata of important laws, which were really executive acts, such as the law by which Pompey received an extraordinary command against Mithridates. The Romans did not draw, any more than the Greek republics, a distinction between general and special legislation.1

This method, in which the people directly govern as a legislature, reducing the executive magistrates to mere instruments, is inapplicable in a large country, because the mass of citizens cannot come together as an assembly. It is highly inconvenient where the legislature, though a representative body, is very numerous. England, accordingly, and the nations which have imitated England,2 have taken a different method. The people (that is, the qualified voters) have allowed an executive to subsist with apparently wide powers, but they virtually choose this executive, and keep it in so close and constant a dependence upon their pleasure, that it dare not act against what it believes their will to be. The struggle for popular liberties in England took at first the form of a struggle for the supremacy of law; that is to say, it was a struggle to restrain the prerogative of the king by compelling his ministers to respect the ancient customs of the land and the statutes passed in Parliament. As the customs were always maintained, and the range of the statutes constantly widened, the executive was by degrees hemmed in within narrow limits, its discretionary power restricted, and that characteristicEdition: current; Page: [196] principle of the Constitution, which has been well called “the reign of law,” was established. It was settled that the law, i.e., the ancient customs and the statutes, should always prevail against the discretion of the Crown and its ministers, and that acts done by the servants of the Crown should be justiciable, exactly like the acts of private persons. This once achieved, the executive fairly bridled, and the ministry made to hold office at the pleasure of the House of Commons, Parliament had no longer its former motive for seeking to restrict the discretion of the ministers of the Crown by minutely particular legislation, for ministers had become so accustomed to subjection that their discretion might be trusted. Parliament has, in fact, of late years begun to sail on the other tack, and allows ministers to do many things by regulations, schemes, orders in council, and so forth, which would previously have been done by statute, generally, however, reserving to itself a right of disapproval.

It may be asked how it comes, if this be so, that people nevertheless talk of the executive in England as being a separate and considerable authority. The answer is twofold. The English Crown has never been, so to speak, thrown into the melting pot and recast, but has continued, in external form and seeming, an independent and highly dignified part of the constitutional system.3 Parliament has never asserted a direct control over certain parts of the royal prerogative, such as the bestowal of honours, the creation of peerages, the making of appointments to office. No one at this moment can say exactly what the royal prerogative does or does not include. And secondly, the actual executive, i.e., the ministry of the day, retains some advantages which are practically, though not legally, immense. It has an initiative in all legislation, a sole initiative in financial legislation. It is aEdition: current; Page: [197] small and well organized body placed in the midst of a much larger and less organized body (i.e., the two houses), on which therefore it can powerfully act. All patronage, ecclesiastical as well as civil, lies in its gift, and though it must not use this function so as to disgust the Commons, it has great latitude in the disposal of favours. While Parliament is sitting it disposes of a large part, sometimes of the whole, of the time of the House of Commons, and can therefore advance the measures it prefers, while retarding or evading motions it dislikes. During nearly half the year Parliament is not sitting, and the necessities of a great state placed in a restless world oblige a ministry to take momentous resolutions upon its own responsibility. Finally, it includes a few men who have obtained a hold on the imagination and confidence of the people, which emboldens them to resist or even to lecture Parliament, and often to prevail, not only against its first impulses, but possibly against its deliberate wishes. And an English ministry is strong not only because it so frankly acknowledges its dependence on the Commons as not to rouse the antagonism of that body, to which, be it remembered, most ministers belong, but also because it has another power outside to which it can, in extreme cases, appeal. It may dissolve Parliament, and ask the people to judge between its views and those of the majority of the House of Commons. Sometimes such an appeal succeeds. The power of making it is at all times a resource.

This delicate equipoise of the ministry, the House of Commons, and the nation acting at a general election, is the secret of the smooth working of the British Constitution. It reappears in two remarkable constitutions, which deserve fuller study than they have yet received from American or English publicists, those of Prussia and the new German Empire. There, however, the ministry is relatively stronger than in England, because the Crown retains not only a wider stretch of legal authority, but a greater moral influence over the people, who have had a shorter practice than the English in working free institutions, and who never forget that they are soldiers, and the king-emperor head of the army. A Prussian minister is so likely to have the nation on his side when he makes an appeal to it in the name of the king, and feels so confident that even if he defies the chambers without dissolving, the nation will not be greatly stirred, that he has sometimes refused to obey the legislature. This is one of those exceptions which illustrate the rule. The legislature is prevented from gaining ground on the executive, not so much by the constitution as by the occasional refusal of the executive to obey the constitution, a refusal made in reliance on the ascendency of the Crown.

So far we have been considering domestic policy. The case of foreignEdition: current; Page: [198] affairs differs chiefly in this, that they cannot be provided for beforehand by laws general in application, but minutely particular in wording. A governing assembly may take foreign affairs into its own hand. In the republics of antiquity the assembly did so, and was its own foreign office. The Athenian assembly received ambassadors, declared war, concluded treaties. It got on well enough while it had to deal with other republics like itself, but suffered when the contest came to be with an astute diplomatist like Philip of Macedon. The Roman Senate conducted the foreign policy of Rome, often with the skill to be expected from men of immense experience and ability, yet sometimes with a vacillation which a monarch would have been less likely to show. But the foreign relations of modern states are so numerous and complex, and so much entangled with commercial questions, that it has become necessary to create a staff of trained officials to deal with them. No large popular assembly could have either the time or the knowledge requisite for managing the ordinary business, much less could it conduct a delicate negotiation whose success would depend on promptitude and secrecy. Hence even democratic countries like France and England are forced to leave foreign affairs to a far greater degree than home affairs to the discretion of the ministry of the day. France reserves to the chambers the power of declaring war or concluding a treaty. England has so far adhered to the old traditions as to leave both to the Crown, though the first, and in most cases the second, must be exerted with the virtual approval of Parliament. The executive is as distinctly responsible to the legislature, as clearly bound to obey the directions of the legislature, as in matters of domestic concern. But the impossibility which the legislature in countries like France and England finds in either assuming executive functions in international intercourse, or laying down any rules by law for the guidance of the executive, necessarily gives the executive a wide discretion and a correspondingly large measure of influence and authority. The only way of restricting this authority would be to create a small foreign affairs committee of the legislature and to empower it to sit when the latter was not sitting. And this extreme course neither France nor England has yet taken, because the dependence of the ministry on the majority of the legislature has hitherto seemed to secure the conformity of the Foreign Office to the ideas and sentiments of that majority.

Before applying these observations to the United States, let us summarize the conclusions we have reached.

We have found that wherever the will of the people prevails, the legislature, since it either is or represents the people, can make itself omnipotent, unlessEdition: current; Page: [199] checked by the action of the people themselves. It can do this in two ways. It may, like the republics of antiquity, issue decrees for particular cases as they arise, giving constant commands to all its agents, who thus become mere servants with no discretion left them. Or it may frame its laws with such particularity as to provide by anticipation for the greatest possible number of imaginable cases, in this way also so binding down its officials as to leave them no volition, no real authority.

We have also observed that every legislature tends so to enlarge its powers as to encroach on the executive; and that it has great advantages for so doing, because a succeeding legislature rarely consents to strike off any fetter its predecessor has imposed.

Thus the legitimate issue of the process would be the extinction or absorption of the executive as a power in the state. It would become a mere set of employees, obeying the legislature as the clerks in a bank obey the directors. If this does not happen, the cause is generally to be sought in some one or more of the following circumstances:

  • The legislature may allow the executive the power of appealing to the nation against itself (England).4
  • The people may from ancient reverence or the habit of military submission be so much disposed to support the executive as to embolden the latter to defy the legislature (Prussia).
  • The importance of foreign policy and the difficulty of taking it out of the hands of the executive may be so great that the executive will draw therefrom an influence reacting in favour of its general weight and dignity (Prussia, England, and, to some extent, France).

Let us now see how the founders of the American Constitution settled the relations of the departments. They were terribly afraid of a strong executive, and desired to reserve the final and decisive voice to the legislature, as representing the people. They could not adopt the Greek method of an assembly both executive and legislative, for Congress was to be a body with limited powers; continuous sittings would be inconvenient, and the division into two equally powerful houses would evidently unfit it to govern with vigour and promptitude. Neither did they adopt the English method of a legislature governing through an executive dependent upon it. It was urged in the Philadelphia Convention of 1787 that the executive ought to be appointed by and made accountable to the legislature, as being the supremeEdition: current; Page: [200] power in the national government. This was overruled, because the majority of the Convention were fearful of “democratic haste and instability,” fearful that the legislature would, in any event, become too powerful, and therefore anxious to build up some counter authority to check and balance it. By making the president independent, and keeping him and his ministers apart from the legislature, the Convention thought they were strengthening him, as well as protecting it from attempts on his part to corrupt it.5 They were also weakening him. He lost the initiative in legislation which the English executive enjoys. He had not the English king’s power of dissolving the legislature and throwing himself upon the country. Thus the executive magistrate seemed left at the mercy of the legislature. It could weave so close a network of statutes round him, like the net of iron links which Hephæstus throws over the lovers in the Odyssey, that his discretion, his individual volition, seemed to disappear, and he ceased to be a branch of the government, being nothing more than a servant working under the eye and at the nod of his master. This would have been an absorption of the executive into the legislature more complete than that which England now presents, for the English prime minister is at any rate a leader, perhaps as necessary to his parliamentary majority as it is to him, whereas the president would have become a sort of superior police commissioner, irremovable during four years, but debarred from acting either on Congress or on the people.

Although the Convention may not have realized how helpless such a so-called executive must be, they felt the danger of encroachments by an ambitious legislature, and resolved to strengthen him against it. This was done by giving the president a veto which it requires a two-thirds vote of Congress to override. In doing this they went back on their previous action. They had separated the president and his ministers from Congress. They now bestowed on him legislative functions, though in a different form. He became a distinct branch of the legislature, but for negative purposes only. He could not propose, but he could refuse. Thus the executive was strengthened, not as an executive, but by being connected with the legislature; and the legislature, already weakened by being divided into two coequal houses, was further weakened by finding itself liable to be arrested in any new departure on which two-thirds of both houses were not agreed.

When the two houses are of one mind, and the party hostile to theEdition: current; Page: [201] president has a two-thirds majority in both, the executive is almost powerless. It may be right that he should be powerless, because such majorities in both houses presumably indicate a vast preponderance of popular opinion against him. The fact to be emphasized is, that in this case all “balance of powers” is gone. The legislature has swallowed up the executive, in virtue of the principle from which this discussion started, viz., that the executive is in free states only an agent who may be so limited by express and minute commands as to have no volition left him.

The strength of Congress consists in the right to pass statutes; the strength of the president in his right to veto them. But foreign affairs, as we have seen, cannot be brought within the scope of statutes. How then was the American legislature to deal with them? There were two courses open. One was to leave foreign affairs to the executive, as in England, giving Congress the same indirect control as the English Parliament enjoys over the Crown and ministry. This course could not be taken, because the president is independent of Congress and irremovable during his term. The other course would have been for Congress, like a Greek assembly, to be its own foreign office, or to create a foreign affairs committee of its members to handle these matters. As the objections to this course, which would have excluded the chief magistrate from functions naturally incidental to his position as official representative of the nation, were overwhelmingly strong, a compromise was made. The initiative in foreign policy and the conduct of negotiations were left to him, but the right of declaring war was reserved to Congress, and that of making treaties to one, the smaller and more experienced, branch of the legislature. A measure of authority was thus suffered to fall back to the executive which would have served to raise materially his position had foreign questions played as large a part in American politics as they have in French or English. They have, however, been comparatively unimportant, especially from 1815 till 1898, a time of external peace, except for the Mexican War of 1846.

It may be said that there was yet another source whence the executive might draw strength to support itself against the legislature, viz., those functions which the Constitution, deeming them necessarily incident to an executive, has reserved to the president and excluded from the competence of Congress. But examination shows that there is scarcely one of these which the long arm of legislation cannot reach. The president is commander in chief of the army, but the numbers and organization of the army are fixed by statute. The president makes appointments, but the Senate has the right of rejecting them, and Congress may pass acts specifying the qualifications of appointees, and reducing the salary of any official except the presidentEdition: current; Page: [202] himself and the judges. The real strength of the executive therefore, the rampart from behind which it can resist the aggressions of the legislature, is in ordinary times the veto power.6 In other words, it survives as an executive in virtue not of any properly executive function, but of the share in legislative functions which it has received; it holds its ground by force, not of its separation from the legislature, but of its participation in a right properly belonging to the legislature.7

An authority which depends on a veto capable of being overruled by a two-thirds majority may seem frail. But the experience of a century has shown that, owing to the almost equal strength of the two great parties, the houses often differ, and there is rarely a two-thirds majority of the same colour in both. Hence the executive has enjoyed some independence. He is strong for defence, if not for attack. Congress can, except within that narrow sphere which the Constitution has absolutely reserved to him, baffle the president, can interrogate, check, and worry his ministers. But it can neither drive him the way it wishes him to go, nor dismiss them for disobedience or incompetence.

An individual man has some great advantages in combating an assembly. His counsels are less distracted. His secrets are better kept. He may sow discord among his antagonists. He can strike a more sudden blow. Julius Cæsar was more than a match for the Senate, Cromwell for the Long Parliament, even Louis Napoleon for the French Assembly of 1851. Hence, when the president happens to be a strong man, resolute, prudent, and popular, he may well hope to prevail against a body whom he may divide by the dexterous use of patronage, may weary out by inflexible patience, may overawe by winning the admiration of the masses, always disposed to rally round a striking personality. But in a struggle extending over a long course of years an assembly has advantages over a succession of officers, especially of elected officers. The Roman Senate encroached on the consuls,Edition: current; Page: [203] though it was neither a legislature nor representative; the Carthaginian councils encroached on the suffetes; the Venetian councils encroached on the doge. Men come and go, but an assembly goes on forever; it is immortal, because while the members change, the policy, the passion for extending its authority, the tenacity in clinging to what has once been gained, remain persistent. A weak magistrate comes after a strong magistrate, and yields what his predecessor had fought for; but an assembly holds all it has ever won.8 Its pressure is steady and continuous; it is always, by a sort of natural process, expanding its own powers and devising new methods for fettering its rival. Thus Congress, though it is no more respected or loved by the people now than it was in its earlier days, and has developed no higher capacity for promoting the best interests of the state, has succeeded in occupying most of the ground which the Constitution left debatable between the president and itself;9 and would, did it possess a better internal organization, be more plainly than it now is the supreme power in the government.

In their effort to establish a balance of power, the framers of the Constitution so far succeeded that neither power has subjected the other. But they underrated the inconveniences which arise from the disjunction of the two chief organs of government. They relieved the administration from a duty which European ministers find exhausting and hard to reconcile with the conduct of administration—the duty of giving attendance in the legislature and taking the lead in its debates. They secured continuity of executive policy for four years at least, instead of leaving government at the mercy of fluctuating majorities in an excitable assembly. But they so narrowed the sphere of the executive as to prevent it from leading the country, or even its own party in the country, except indeed in a national crisis, or when the president happens to be exceptionally popular. They sought to make members of Congress independent, but in doing so they deprived them of some of the means which European legislators enjoy of learning how to administer, of learning even how to legislate in administrative topics. They condemned them to be architects without science, critics without experience, censors without responsibility.

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the national government The Federal Courts fpage="204" lpage="214"
chapter 22

The Federal Courts

When in 1788 the loosely confederated states of North America united themselves into a nation, national tribunals were felt to be a necessary part of the national government. Under the Confederation there had existed no means of enforcing the treaties made or orders issued by the Congress, because the courts of the several states owed no duty to that feeble body, and had little will to aid it. Now that a federal legislature had been established, whose laws were to bind directly the individual citizen, a federal judicature was evidently needed to interpret and apply these laws, and to compel obedience to them. The alternative would have been to entrust the enforcement of the laws to state courts. But state courts were not fitted to deal with matters of a quasi-international character, such as admiralty jurisdiction and rights arising under treaties. They supplied no means for deciding questions between different states. They could not be trusted to do complete justice between their own citizens and those of another state. Being under the control of their own state governments, they might be forced to disregard any federal law which the state disapproved; or even if they admitted its authority, might fail in the zeal or the power to give due effect to it. And being authorities coordinate with and independent of one another, with no common court of appeal placed over them to correct their errors or harmonize their views, they would be likely to interpret the federal Constitution and statutes in different senses, and make the law uncertain by the variety of their decisions. These reasons pointed imperatively to the establishment of a new tribunal or set of tribunals, altogether detached from the states, as part of the machinery of the new government. Side by side of the thirteen different sets of state courts, whose jurisdiction under state laws and between their own citizens was left untouched, there arose a new and complex system of federal courts. The Constitution drew the outlines of theEdition: current; Page: [205] system. Congress perfected it by statutes; and as the details rest upon these statutes, Congress retains the power of altering them. Few American institutions are better worth studying than this intricate judicial machinery; few deserve more admiration for the smoothness of their working; few have more contributed to the peace and well-being of the country.

The federal courts fall into three classes:

  • The Supreme Court, which sits at Washington
  • The Circuit Courts of Appeals
  • The Circuit Courts
  • The District Courts

The Supreme Court is directly created by art. III, § 1 of the Constitution, but with no provision as to the number of its judges. Originally there were six; at present there are nine, a chief justice, with a salary of $13,000 and eight associate justices (salary $12,500). The justices are nominated by the president and confirmed by the Senate. They hold office during good behaviour, i.e., they are removable only by impeachment; and have thus a tenure even more secure than that of English judges, for the latter may be removed by the Crown on an address from both houses of Parliament.1 Moreover, the English statutes secure the permanence only of the judges of the Supreme Court of judicature, not also of judges of county or other local courts, while the provisions of the American Constitution are held to apply to the inferior as well as the superior federal judges.2 The Fathers of the Constitution were extremely anxious to secure the independence of their judiciary, regarding it as a bulwark both for the people and for the states against aggressions of either Congress or the president.3 They affirmed the life tenure by an unanimous vote in the Convention of 1787, because they deemed the risk of the continuance in office of an incompetent judge a less evil than the subserviency of all judges to the legislature, which might flow from a tenure dependent on legislative will. The result has justified their expectations. The judges, although neither they nor anyone can whollyEdition: current; Page: [206] escape the influence of party bias, have shown themselves independent of Congress and of party authority, yet the security of their position has rarely tempted them to breaches of judicial duty. Impeachment has been six times resorted to, once only against a justice of the Supreme Court, and then unsuccessfully.4 Attempts have been made, beginning from Jefferson, who argued that judges should hold office for terms of four or six years only, to alter the tenure of the federal judges, as that of the state judges has been altered in most state; but Congress has always rejected the proposal.

The Supreme Court sits at Washington from October till July in every year. The presence of six judges is required to pronounce a decision, a rule which, by preventing the division of the court into two or more branches, retards the despatch of business, though it has the advantage of securing a thorough consideration of every case. The sittings are held in the Capitol, in the chamber formerly occupied by the Senate, and the justices wear black gowns, being not merely the only public officers, but the only nonecclesiastical persons of any kind whatever within the bounds of the United States who till recently used any official dress.5 Every case is discussed by the whole body twice over, once to ascertain the opinion of the majority, which is then directed to be set forth in a written judgment; then again when that written judgment, which one of the judges has prepared, is submitted for criticism and adoption as the judgment of the court.

The Circuit Courts of Appeal have been created by Congress under a power in the Constitution to establish “inferior courts.” There are at present nine judicial circuits, in which courts are held regularly. Each of these has two, three, or four Circuit judges (salary $7,000), and to each there is also allotted one of the justices of the Supreme Court. The Circuit Court of Appeal may be held either by a Circuit judge alone, or by the Supreme Court Circuit justice alone, or by both together, or by either sitting along with the District judge (hereafter mentioned) of the district wherein the particular Circuit Court is held, or by the District judge alone. To the Circuit Courts of Appeals are brought cases from District Courts, a further appeal lying, in some classes of cases, to the Supreme Court, to which moreover, in certain cases, a direct appeal from the District Courts may still be brought. There was formerly a Circuit Court, but that court was abolished in 1912 and its jurisdiction transferred to the District Courts.

The District Courts are the fourth and lowest class of federal tribunals.Edition: current; Page: [207] They were in 1910 eighty-eight in number, and their judges receive salaries of $6,000 per annum. The Constitution does not expressly state whether they and the Circuit judges are to be appointed by the president and Senate like the members of the Supreme Court; but it has always been assumed that such was its intention, and the appointments are so made accordingly.

For the purpose of dealing with the claims of private persons against the federal government there has been established in Washington a special tribunal called the Court of Claims, with a chief justice (salary $6,500) and four other justices (salary $6,500), from which an appeal lies direct to the Supreme Court.

A Court of Customs Appeals was created under the Tariff Act of 1909 to decide questions relating to customs duties. It consists of a presiding judge and four associates (salary $10,000).

The jurisdiction of the federal courts extends to the following classes of cases, on each of which I say no more than what seems absolutely necessary to explain their nature.6 All other cases have been left to the state courts, from which there does not lie (save as hereinafter specified) any appeal to the federal courts.

1. “Cases in law and equity arising under the constitution, the laws of the United States and treaties made under their authority.”

In order to enforce the supremacy of the national Constitution and laws over all state laws, it was necessary to place the former under the guardianship of the national judiciary. This provision accordingly brings before a federal court every cause in which either party to a suit relies upon any federal enactment (including the Constitution and a treaty as well as a federal statute). It entitles a plaintiff who bases his case on a federal statute to bring his action in a federal court; it entitles a defendent who rests his defence on a federal enactment to have the action, if originally brought in a state court, removed to a federal court.7 But, of course, if the action has originally been brought in a state court, there is no reason for removing it unless the Edition: current; Page: [208]authority of the federal enactment can be supposed to be questioned. Accordingly, the rule laid down by the Judiciary Act (1789) provides “for the removal to the Supreme Court of the United States of the final judgment or decree in any suit, rendered in the highest court of law or equity of a State in which a decision could be had, in which is drawn in question the validity of a treaty or statute of, or authority exercised under, the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under, any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favour of their validity; or where any title, right, privilege, or immunity is claimed under the Constitution, or any treaty or statute of a commission held or authority exercised under the United States, and the decision is against the title, right, privilege, or immunity specially set up or claimed by either party under such Constitution, treaty, statute, commission, or authority. But to authorize the removal under that act, it must appear by the record, either expressly or by clear and necessary intendment, that some one of the enumerate questions did arise in the State court, and was there passed upon. It is not sufficient that it might have arisen or been applicable. And if the decision of the State court is in favour of the right, title, privilege, or exemption so claimed, the Judiciary Act does not authorize such removal, neither does it where the validity of the State law is drawn in question, and the decision of the State court is against its validity.” 8

The rule seems intricate, but the motive for it and the working of it are plain. Where in any legal proceeding a federal enactment has to be construed or applied by a state court, if the latter supports the federal enactment, i.e., considers it to govern the case, and applies it accordingly, the supremacy of federal law is thereby recognized and admitted. There is therefore no reason for removing the case to a federal tribunal. Such a tribunal could do no more to vindicate federal authority than the state court has already done. But if the decision of the state court has been against the applicability of the federal law, it is only fair that the party who suffers by the decision should be entitled to federal determination of the point, and he has accordingly an absolute right to carry it before the Supreme Court.9

The principle of this rule is applied even to executive acts of the federalEdition: current; Page: [209] authorities. If, for instance, a person has been arrested by a federal officer, a state court has no jurisdiction to release him on a writ of habeas corpus, or otherwise to inquire into the lawfulness of his detention by federal authority, because, as was said by Chief Justice Taney, “The powers of the general government and of the State, although both exist and are exercised within the same territorial limits, are yet separate and distinct sovereignties, acting separately and independently of each other, within their respective spheres. And the sphere of action appropriated to the United States is as far beyond the reach of the judicial process issued by a State court as if the line of division was traced by landmarks and monuments visible to the eye.” 10

2. “Cases affecting ambassadors, other public ministers, and consuls.”

As these persons have an international character, it would be improper to allow them to be dealt with by a state court which has nothing to do with the national government, and for whose learning and respectability there may exist no such securities as those that surround the federal courts.

3. “Cases of admiralty and maritime jurisdiction.”

These are deemed to include not only prize cases but all maritime contracts, and all transactions relating to navigation, as well on the navigable lakes and rivers of the United States as on the high seas.

4. “Controversies to which the United States shall be a party.”

This provision is obviously needed to protect the United States from being obliged to sue or be sued in a state court, to whose decision the national government could not be expected to submit. When a pecuniary claim is sought to be established against the federal government, the proper tribunal is the Court of Claims.

5. “Controversies between two or more States, between a State and citizens of another State, between citizens of different States, between citizens of the same State claiming lands under grants of different States, and between a State, or the citizens thereof, and foreign states, citizens, or subjects.”

In all these cases a state court is likely to be, or at any rate to seem, a partial tribunal, and it is therefore desirable to vest the jurisdiction in judges equally unconnected with the plaintiff and the defendant. By securingEdition: current; Page: [210] recourse to an unbiased and competent tribunal, the citizens of every state obtain better commercial facilities than they could otherwise count upon, for their credit will stand higher with persons belonging to other states if the latter know that their legal rights are under the protection, not of local and possibly prejudiced judges, but of magistrates named by the national government, and unamenable to local influences.11

One important part of the jurisdiction here conveyed has been subsequently withdrawn from the federal judicature. When the Constitution was submitted to the people, a principal objection urged against it was that it exposed a state, although a sovereign commonwealth, to be sued by the individual citizens of some other state. That one state should sue another was perhaps necessary, for what other way could be discovered of terminating disputes? But the power as well as the dignity of a state would be gone if it could be dragged into court by a private plaintiff. Hamilton (writing in the Federalist) met the objection by arguing that the jurisdiction-giving clause of the Constitution ought not to be so construed, but must be read as being subject to the general doctrine that a sovereign body cannot be sued by an individual without its own consent, a doctrine not to be excluded by mere implication but only by express words.12 However, in 1793 the Supreme Court, in the famous case of Chisholm v. The State of Georgia,13 construed the Constitution in the very sense which Hamilton had denied, holding that an action did lie against Georgia at the suit of a private plaintiff; and when Georgia protested and refused to appear, the Court proceeded (in 1794) to give judgment against her by default in case she should not appear and plead before a day fixed. Her cries of rage filled the Union, and brought other states to her help. An amendment (the eleventh) to the Constitution was passed through Congress and duly accepted by the requisite majority of the states, which declares that “the judicial power of the United States shall not be construed to extend to any suit commenced or prosecuted against one of the United States by citizens of another State or by citizens or subjects of any foreign states.” 14 Under the protection of this amendment, not a few states have with impunity repudiated their debts.

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The jurisdiction of the Supreme Court is original in cases affecting ambassadors, and wherever a state is a party; in other cases it is appellate; that is, cases may be brought to it from the inferior federal courts and (under the circumstances before mentioned) from state courts. The jurisdiction is in some matters exclusive, in others concurrent with that of the state courts. Upon these subjects there have arisen many difficult and intricate questions, which I must pass by, because they would be unintelligible without long explanations.15 One point, however, may be noted. The state courts cannot be invested by Congress with any jurisdiction, for Congress has no authority over them, and is not permitted by the Constitution to delegate any judicial powers to them. Hence the jurisdiction of a state court, wherever it is concurrent with that of federal judges, is a jurisdiction which the court possesses of its own right, independent of the Constitution. And in some instances where congressional statutes have purported to impose duties on state courts, the latter have refused to accept and discharge them.

The criminal jurisdiction of the federal courts, which extends to all offences against federal law, is purely statutory. “The United States as such can have no common law. It derives its powers from the grant of the people made by the Constitution, and they are all to be found in the written law, and not elsewhere.” 16

The procedure of the federal courts is prescribed by Congress, subject to some few rules contained in the Constitution, such as those which preserve the right of trial by jury in criminal cases17 and suits at common law.18 As “cases in law and equity” are mentioned, it is held that Congress could not accomplish such a fusion of law and equity as has been effected in several states of the Union, and was recently effected in England in 1873, but must maintain these methods of procedure as distinct, though administered by the same judges.

The law applied in the federal courts is of course first and foremost that enacted by the federal legislature, which, when it is applicable, prevails against any state law. But very often, as for instance in suits betweenEdition: current; Page: [112] citizens of different states, federal law does not, or does only in a secondary way, come in question. In such instances the first thing is to determine what law it is that ought to govern the case, each state having a law of its own; and when this has been ascertained, it is applied to the facts, just as an English court would apply French or Scotch law in pronouncing on the validity of a marriage contracted in France or Scotland. In administering the law of any state (including its constitution, its statutes, and its common law, which in Louisiana is the civil law in its French form) the federal courts ought to follow the decisions of the state courts, treating those decisions as the highest authority on the law of the particular state. This doctrine is so fully applied that the Supreme Court has even overruled its own previous determinations on a point of state law in order to bring itself into agreement with the view of the highest court of the particular state. Needless to say, the state courts follow the decisions of the federal courts upon questions of federal law.19

For the execution of its powers each federal court has attached to it an officer called the United States marshal, corresponding to the sheriff in the state governments, whose duty it is to carry out its writs, judgments, and orders by arresting prisoners, levying execution, putting persons in possession, and so forth. He is entitled, if resisted, to call on all good citizens for help; if they will not or cannot render it, he must refer to Washington and obtain the aid of federal troops. There exists also in every judiciary district a federal public prosecutor, called the United States district attorney, who institutes proceedings against persons transgressing federal laws or evading the discharge of obligations to the federal treasury. Both sets of officials are under the direction of the attorney general, as head of the Department of Justice. They constitute a network of federal authorities covering the whole territory of the Union, and independent of the officers of the state courts and of the public prosecutors who represent the state governments. Where a state maintains a gaol for the reception of federal prisoners, the U.S. marshal delivers his prisoners to the state gaoler; where this provision is wanting, he must himself arrange for their custody.

The European reader may ask how it is possible to work a system soEdition: current; Page: [213] extremely complex, under which every yard of ground in the Union is covered by two jurisdictions, with two sets of judges and two sets of officers, responsible to different superiors, their spheres of action divided only by an ideal line, and their action liable in practice to clash. The answer is that the system does work, and now, after an experience of four generations, works smoothly. It is more costly than the simpler systems of France, Prussia, or England, though, owing to the small salaries paid, the expense falls rather on litigants than on the public treasury. But it leads to few conflicts or heartburnings, because the key to all difficulties is found in the principle that wherever federal law is applicable federal law must prevail, and that every suitor who contends that federal law is applicable is entitled to have the point determined by a federal court. The acumen of the lawyers and judges, the wealth of accumulated precedents, make the solution of these questions of applicability and jurisdiction easier than a European practitioner can realize: while the law-respecting habits of the people and their sense that the supremacy of federal law and jurisdiction works to the common benefit of the whole people, secure general obedience to federal judgments. The enforcement of the law, especially the criminal law, in some parts of America leaves much to be desired; but the difficulties which arise are now due not to conflicts between state and federal pretensions but to other tendencies equally hostile to both authorities.

A word in conclusion as to the separation of the judicial from the other two departments, a point on which the framers of the Constitution laid great stress. The functions of the legislature are more easily distinguished from those of the judiciary than from those of the executive. The legislature makes the law, the judiciary applies it to particular cases by investigating the facts and, when these have been ascertained, by declaring what rule of law governs them. Nevertheless, there are certain points in which the functions of the two departments touch, certain ground debatable between the judiciary on the one hand and the legislature on the other. In most countries the courts have grown out of the legislature; or rather, the sovereign body, which, like Parliament, was originally both a law court and a legislature, has delivered over the bulk of its judicial duties to other persons, while retaining some few to be still exercised by itself.

America has in general followed the principles and practice of England. Like England, she creates no separate administrative tribunals such as exist in the states of the European continent, but allows officials to be sued in or indicted before the ordinary courts. Like England, she has given the judges (i.e., the federal judges) a position secured against the caprice of theEdition: current; Page: [214] legislature or executive. Like England, she recognizes judicial decisions as law until some statute has set them aside. In one respect she has improved on England—viz., in forbidding the legislature to exercise the powers of a criminal court, by passing acts of attainder or of pains and penalties, measures still legal, though virtually obsolete, in England.20 In others, she diverges from England. England has practically ceased to use one branch of her Parliament as a court for the trial of impeachments. America still occasionally throws upon one house of Congress this function; which though it is ill suited to an ordinary court of justice, is scarcely better discharged by a political assembly. England has remitted to the courts of law the trial of disputed parliamentary elections; America still reserves these for Congress, and allows them to be disposed of by partisan votes, often with little regard to the merits. Special and local bills which vest in private hands certain rights of the state, such as public franchises, or the power of taking private property against the owner’s will, are, though in form exercises of legislative power, really fitter to be examined and settled by judicial methods than by the loose opinion, the private motives, the lobbying, which determine legislative decisions where the control of public opinion is insufficiently provided for. England accordingly, though she refers such bills to committees of Parliament, directs these committees to apply a quasi-judicial procedure, and to decide according to the evidence tendered. America takes no such securities, but handles these bills like any others. Here therefore we see three pieces of ground debatable between the legislature and the judiciary. All of them originally belonged to the legislature. All in America still belong to it. England, however, has abandoned the first, has delivered over the second to the judges, and treats the third as matter to be dealt with by judicial rather than legislative methods. Such points of difference are worth noting, because the impression has prevailed in Europe that America is the country in which the province of the judiciary has been most widely extended.

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chapter 23

The Courts and the Constitution

No feature in the government of the United States has awakened so much curiosity in the European mind, caused so much discussion, received so much admiration, and been more frequently misunderstood, than the duties assigned to the Supreme Court and the functions which it discharges in guarding the ark of the Constitution. Yet there is really no mystery about the matter. It is not a novel device. It is not a complicated device. It is the simplest thing in the world if approached from the right side.

In England and many other modern states there is no difference in authority between one statute and another. All are made by the legislature; all can be changed by the legislature. What are called in England constitutional statutes, such as Magna Charta, the Bill of Rights, the Act of Settlement, the Acts of Union with Scotland and Ireland, are merely ordinary laws, which could be repealed by Parliament at any moment in exactly the same way as it can repeal a highway act or lower the duty on tobacco.1 The habit has grown up of talking of the British Constitution as if it were a fixed and definite thing. But there is in England no such thing as a constitution apart from the rest of the law: there is merely a mass of law, consisting partly of statutes and partly of decided cases and accepted usages, in conformity with which the government of the country is carried on from day to day, but which is being constantly modified by fresh statutes and cases. The same thing existed in ancient Rome, and everywhere in Europe a century ago. It is, so to speak, the “natural,” and used to be the normal, condition of things in all countries, free or despotic.

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The condition of America is wholly different. There the name Constitution designates a particular instrument adopted in 1788, amended in some points since, which is the foundation of the national government. This Constitution was ratified and made binding, not by Congress, but by the people acting through conventions assembled in the thirteen states which then composed the Confederation. It created a legislature of two houses; but that legislature, which we call Congress, has no power to alter it in the smallest particular. That which the people have enacted, the people only can alter or repeal.

Here therefore we observe two capital differences between England and the United States. The former has left the outlines as well as the details of her system of government to be gathered from a multitude of statutes and cases. The latter has drawn them out in one comprehensive fundamental enactment. The former has placed these so-called constitutional laws at the mercy of her legislature, which can abolish when it pleases any institution of the country, the Crown, the House of Lords, the Established Church, the House of Commons, Parliament itself.2 The latter has placed her Constitution altogether out of the reach of Congress, providing a method of amendment whose difficulty is shown by the fact that it has been very sparingly used.

In England Parliament is omnipotent. In America Congress is doubly restricted. It can make laws only for certain purposes specified in the Constitution, and in legislating for these purposes it must not transgress any provision of the Constitution itself. The stream cannot rise above its source.

Suppose, however, that Congress does so transgress, or does overpass the specified purposes. It may do so intentionally; it is likely to do so inadvertently. What happens? If the Constitution is to be respected, there must be some means of securing it against Congress. If a usurpation of power is attempted, how is it to be checked? If a mistake is committed, who sets it right?

The point may be elucidated by referring it to a wider category, familiar to lawyers and easily comprehensible by laymen, that of acts done by an agent for a principal. If a landowner directs his bailiff to collect rents for him, or to pay debts due to tradesmen, the bailiff has evidently no authorityEdition: current; Page: [217] to bind his employer by any act beyond the instructions given him, as, for instance, by contracting to buy a field. If a manufacturer directs his foreman to make rules for the hours of work and meals in the factory, and the foreman makes rules not only for those purposes, but also prescribing what clothes the workmen shall wear and what church they shall attend, the latter rules have not the force of the employer’s will behind them, and the workmen are not to be blamed for neglecting them.

The same principle applies to public agents. In every country it happens that acts are directed to be done and rules to be made by bodies which are in the position of agents, i.e., which have received from some superior authority a limited power of acting and of rulemaking, a power to be used only for certain purposes or under certain conditions. Where this power is duly exercised, the act or rule of the subordinate body has all the force of an act done or rule made by the superior authority, and is deemed to be made by it. And if the latter be a lawmaking body, the rule of the subordinate body is therefore also a law. But if the subordinate body attempts to transcend the power committed to it, and makes rules for other purposes or under other conditions than those specified by the superior authority, these rules are not law, but are null and void. Their validity depends on their being within the scope of the lawmaking power conferred by the superior authority, and as they have passed outside that scope they are invalid. They do not justify any act done under them forbidden by the ordinary law. They ought not to be obeyed or in any way regarded by the citizens, because they are not law.

The same principle applies to acts done by an executive officer beyond the scope of his legal authority. In free countries an individual citizen is justified in disobeying the orders of a magistrate if he correctly thinks these orders to be in excess of the magistrate’s legal power, because in that case they are not really the orders of a magistrate, but of a private person affecting to act as a magistrate. In England, for instance, if a secretary of state, or a police constable, does any act which the citizen affected by it rightly deems unwarranted, the citizen may resist, by force if necessary, relying on the ordinary courts of the land to sustain him. This is a consequence of the English doctrine that all executive power is strictly limited by the law, and is indeed a cornerstone of English liberty.3 It is applied even as against the dominant branch of the legislature. If the House of Commons should act inEdition: current; Page: [218] excess of the power which the law and custom of Parliament has secured to it, a private individual may resist the officers of the House and the courts will protect him by directing him to be acquitted if he is prosecuted, or, if he is plaintiff in a civil action, by giving judgment in his favour.

An obvious instance of the way in which rules or laws made by subordinate bodies are treated is afforded by the bye-laws made by an English railway company or municipal corporation under powers conferred by an act of Parliament. So long as these bye-laws are within the scope of the authority which the act of Parliament has given, they are good, i.e., they are laws, just as much as if enacted in the act. If they go beyond it, they are bad, that is to say, they bind nobody and cannot be enforced. If a railway company which has received power to make bye-laws imposing fines up to the amount of forty shillings, makes a bye-law punishing any person who enters or quits a train in motion with a fine of fifty shillings or a week’s imprisonment, that bye-law is invalid, that is to say, it is not law at all, and no magistrate can either imprison or impose a fine of fifty shillings on a person accused of contravening it. If a municipal corporation has been by statute empowered to enter into contracts for the letting of lands vested in it, and directed to make bye-laws, for the purpose of letting, which must provide, among other things, for the advertising of all lands intended to be let, and if it makes a bye-law in which no provision is made for advertising, and under that bye-law contracts for the letting of a piece of land, the letting made in pursuance of this bye-law is void, and conveys no title to the purchaser. All this is obvious to a lay as well as to a legal mind; and it is no less obvious that the question of the validity of the bye-law, and of what has been done under it, is one to be decided not by the municipal corporation or company, but by the courts of justice of the land.

Now, in the United States the position of Congress may for this purpose be compared to that of an English municipal corporation or railway company. The supreme lawmaking power is the people, that is, the qualified voters, acting in a prescribed way. The people have by their supreme law, the Constitution, given to Congress a delegated and limited power of legislation. Every statute passed under that power conformably to the Constitution has all the authority of the Constitution behind it. Any statute passed which goes beyond that power is invalid, and incapable of enforcement. It is in fact not a statute at all, because Congress in passing it was not really a lawmaking body, but a mere group of private persons.

Says Chief Justice Marshall, “The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, theEdition: current; Page: [219] Constitution is written. To what purpose are powers limited and to what purpose is that limitation committed to writing, if those limits may at any time be passed by those intended to be restrained? The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like any other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law. If the latter part be true, then written constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.” There is of course this enormous difference between Congress and any subordinate lawmaking authority in England, that Congress is supreme within its proper sphere, the people having no higher permanent organ to override or repeal such statutes as Congress may pass within that sphere; whereas in England there exists in Parliament a constantly present supervising authority, which may at any moment cancel or modify what any subordinate body may have enacted, whether within or without the scope of its delegated powers. This is a momentous distinction. But it does not affect the special point which I desire to illustrate, viz., that a statute passed by Congress beyond the scope of its powers is of no more effect than a bye-law made ultra vires by an English municipality. There is no mystery so far; there is merely an application of the ordinary principles of the law of agency. But the question remains, How and by whom, in case of dispute, is the validity or invalidity of a statute to be determined?

Such determination is to be effected by setting the statute side by side with the Constitution, and considering whether there is any discrepancy between them. Is the purpose of the statute one of the purposes mentioned or implied in the Constitution? Does it in pursuing that purpose contain anything which violates any clause of the Constitution? Sometimes this is a simple question, which an intelligent layman may answer. More frequently it is a difficult one, which needs not only the subtlety of the trained lawyer, but a knowledge of former cases which have thrown light on the same or a similar point. In any event it is an important question, whose solution ought to proceed from a weighty authority. It is a question of interpretation, that is, of determining the true meaning both of the superior law and of the inferior law, so as to discover whether they are inconsistent.

Now the interpretation of laws belongs to courts of justice. A law implies a tribunal, not only in order to direct its enforcement against individuals, but to adjust it to the facts, i.e., to determine its precise meaning and apply that meaning to the circumstances of the particular case. The legislature,Edition: current; Page: [220] which can only speak generally, makes every law in reliance on this power of interpretation. It is therefore obvious that the question, whether a congressional statute offends against the Constitution, must be determined by the courts, not merely because it is a question of legal construction, but because there is nobody else to determine it. Congress cannot do so, because Congress is a party interested. If such a body as Congress were permitted to decide whether the acts it had passed were constitutional, it would of course decide in its own favour, and to allow it to decide would be to put the Constitution at its mercy. The president cannot, because he is not a lawyer, and he also may be personally interested. There remain only the courts, and these must be the national or federal courts, because no other courts can be relied on in such cases. So far again there is no mystery about the matter.

Now, however, we arrive at a feature which complicates the facts, although it introduces no new principle. The United States is a federation of commonwealths, each of which has its own constitution and laws. The federal Constitution not only gives certain powers to Congress, as the national legislature, but recognizes certain powers in the states, in virtue whereof their respective peoples have enacted fundamental state laws (the state constitutions) and have enabled their respective legislatures to pass state statutes. However, as the nation takes precedence of the states, the federal Constitution, which is the supreme law of the land everywhere, and the statutes duly made by Congress under it, are preferred to all state constitutions and statutes; and if any conflict arise between them, the latter must give way. The same phenomenon therefore occurs as in the case of an inconsistency between the Constitution and a congressional statute. Where it is shown that a state constitution or statute infringes either the federal Constitution or a federal (i.e., congressional) statute, the state constitution or statute must be held and declared invalid. And this declaration must, of course, proceed from the courts, nor solely from the federal courts; because when a state court decides against its own statutes or constitution in favour of a federal law, its decision is final.

It will be observed that in all this there is no conflict between the law courts and any legislative body. The conflict is between different kinds of laws. The duty of the judges is as strictly confined to the interpretation of the laws cited to them as it is in England or France; and the only difference is that in America there are laws of four different degrees of authority, whereas in England all laws (excluding mere bye-laws, Privy Council ordinances, etc.) are equal because all proceed from Parliament. These four kinds of American laws are:

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  • I. The Federal Constitution
  • II. Federal statutes
  • III. State constitutions
  • IV. State statutes4

The American law court therefore does not itself enter on any conflict with the legislature. It merely secures to each kind of law its due authority. It does not even preside over a conflict and decide it, for the relative strength of each kind of law has been settled already. All the court does is to point out that a conflict exists between two laws of different degrees of authority. Then the question is at an end, for the weaker law is extinct, or, to put the point more exactly, a flaw has been indicated which makes the world see that if the view of the court be correct, the law is in fact null. The court decides nothing but the case before it; and anyone may, if he thinks the court wrong, bring up a fresh case raising again the question whether the law is valid.5

This is the abstract statement of the matter; but there is also an historical one. Many of the American colonies received charters from the British Crown, which created or recognized colonial assemblies, and endowed these with certain powers of making laws for the colony. Such powers were of course limited, partly by the charter, partly by usage, and were subject to the superior authority of the Crown or of the British Parliament. Questions sometimes arose in colonial days whether the statutes made by these assemblies were in excess of the powers conferred by the charter; and if the statutes were found to be in excess, they were held invalid by the courts, that is to say, in the first instance, by the colonial courts, or, if the matter was carried to England, by the Privy Council.6

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When the thirteen American colonies asserted their independence in 1776, they replaced these old charters by new constitutions,7 and by these constitutions entrusted their respective legislative assemblies with certain specified and limited legislative powers. The same question was then liable to recur with regard to a statute passed by one of these assemblies. If such a statute was in excess of the power which the state constitution conferred on the state legislature, or in any way transgressed the provisions of that constitution, it was invalid, and acts done under it were void. The question, like any other question of law, came for decision before the courts of the state. Thus, in 1786, the supreme court of Rhode Island held that a statute of the legislature which purported to make a penalty collectible on summary conviction, without trial by jury, gave the court no jurisdiction, i.e., was invalid, the colonial charter, which was then still in force as the constitution of the state, having secured the right of trial by jury in all cases.8 When the Constitution of the United States came into operation in 1789, and was declared to be paramount to all state constitutions and state statutes, no new principle was introduced; there was merely a new application, as between the nation and the states, of the old doctrine that a subordinate and limited legislature cannot pass beyond the limits fixed for it. It was clear, on general principles, that a state law incompatible with a federal law must give way; the only question was: What courts are to pronounce upon the question whether such incompatibility exists? Who is to decide whether or not the authority given to Congress has been exceeded, and whether or not the state law contravenes the federal Constitution or a federal statute?

In 1787 the only then-existing courts were the state courts. If a case coming before them raised the point whether a state constitution or statute was inconsistent with the federal Constitution or a statute of Congress, it was their duty to decide it, like any other point of law. But their decision could not safely be accepted as final, because, being themselves the offspring of, and amenable to, the state governments, they would naturally tend to uphold state laws against the federal Constitution or statutes. Hence it became necessary to set up courts created by the central federal authority and coextensive with it—that is to say, those federal courts which haveEdition: current; Page: [223] been already described. The matter seems complicated, because we have to consider not only the superiority of the federal Constitution to the federal legislature, but also the superiority of both the federal Constitution and federal statutes to all state laws. But the principle is the same and equally simple in both sets of cases. Both are merely instances of the doctrine, that a lawmaking body must not exceed its powers, and that when it has attempted to exceed its powers, its so-called statutes are not laws at all, and cannot be enforced.

In America the supreme lawmaking power resides in the people. Whatever they enact is universally binding. All other lawmaking bodies are subordinate, and the enactments of such bodies must conform to the supreme law, else they will perish at its touch, as a fishing smack goes down before an ocean steamer. And these subordinate enactments, if at variance with the supreme law, are invalid from the first, although their invalidity may remain for years unnoticed or unproved. It can be proved only by the decision of a court in a case which raises the point for determination. The phenomenon cannot arise in a country whose legislature is omnipotent, but naturally9 arises wherever we find a legislature limited by a superior authority, such as a constitution which the legislature cannot alter.

In England the judges interpret acts of Parliament exactly as American judges interpret statutes coming before them. If they find an act conflicting with a decided case, they prefer the act to the case, as being of higher authority. As between two apparently conflicting acts, they prefer the later, because it is the last expression of the mind of Parliament. If they misinterpret the mind of Parliament, i.e., if they construe an act in a sense which Parliament may not have intended, their decision is nevertheless valid, and will be followed by other courts of the same rank until Parliament speaks its mind again by another act. The only difference between their position and that of their American brethren is that they have never to distinguish between the authority of one enactment and of another, otherwise than by looking to the date, and that they therefore need never to inquire whether an act of Parliament was invalid when first passed. Invalid it could not have been, because Parliament is omnipotent, and Parliament is omnipotentEdition: current; Page: [224] because Parliament is deemed to be the people. Parliament is not a body with delegated or limited authority. The whole fulness of popular power dwells in it. The whole nation is supposed to be present within its walls.10 Its will is law; or, as Dante says in a famous line, “its will is power.”

There is a story told of an intelligent Englishman who, having heard that the Supreme Federal Court was created to protect the Constitution, and had authority given it to annul bad laws, spent two days in hunting up and down the federal Constitution for the provisions he had been told to admire. No wonder he did not find them, for there is not a word in the Constitution on the subject. The powers of the federal courts are the same as those of all other courts in civilized countries, or rather they differ from those of other courts by defect and not by excess, being limited to certain classes of cases. The so-called “power of annulling an unconstitutional statute” is a duty rather than a power, and a duty incumbent on the humblest state court when a case raising the point comes before it no less than on the Supreme Federal Court at Washington. When therefore people talk, as they sometimes do, even in the United States, of the Supreme Court as “the guardian of the Constitution,” they mean nothing more than that it is the final court of appeal, before which suits involving constitutional questions may be brought up by the parties for decision. In so far the phrase is legitimate. But the functions of the Supreme Court are the same in kind as those of all other courts, state as well as federal. Its duty and theirs is simply to declare and apply the law; and where any court, be it a state court of first instance, or the federal court of last instance, finds a law of lower authority clashing with a law of higher authority, it must reject the former, as being really no law, and enforce the latter.

It is therefore no mere technicality to point out that the American judges do not, as Europeans are apt to say, “control the legislature,” but simply interpret the law. The word “control” is misleading, because it implies that the person or body of whom it is used possesses and exerts discretionary personal will. Now the American judges have no discretionary will in the matter any more than has an English court when it interprets an act ofyEdition: current; Page: [225] Parliament. The will that prevails is the will of the people, expressed in the Constitution which they have enacted. All that the judges have to do is to discover from the enactments before them what the will of the people is, and apply that will to the facts of a given case. The more general or ambiguous the language which the people have used, so much the more difficult is the task of interpretation, so much greater the need for ability and integrity in the judges. But the task is always the same in its nature. The judges have no concern with the motives or the results of an enactment, otherwise than as these may throw light on the sense in which the enacting authority intended it. It would be a breach of duty for them to express, I might almost say a breach of duty to entertain, an opinion on its policy except so far as its policy explains its meaning. They may think a statute excellent in purpose and working, but if they cannot find in the Constitution a power for Congress to pass it, they must brush it aside as invalid. They may deem another statute pernicious, but if it is within the powers of Congress, they must enforce it. To construe the law, that is, to elucidate the will of the people as supreme lawgiver, is the beginning and end of their duty. And if it be suggested that they may overstep their duty, and may, seeking to make themselves not the exponents but the masters of the Constitution, twist and pervert it to suit their own political views, the answer is that such an exercise of judicial will would rouse the distrust and displeasure of the nation, and might, if persisted in, provoke resistance to the law as laid down by the court, possibly an onslaught upon the court itself.

To insist upon the fact that the judiciary of the United States are not masters of the Constitution but merely its interpreters is not to minimize the importance of their functions, but to indicate their true nature. The importance of those functions can hardly be exaggerated. It arises from two facts. One is that as the Constitution cannot easily be changed, a bad decision on its meaning, i.e., a decision which the general opinion of the profession condemns, may go uncorrected. In England, if a court has construed a statute in a way unintended or unexpected, Parliament can set things right next session by amending the statute, and so prevent future decisions to the same effect. But American history shows only one instance in which an unwelcome decision on the meaning of the Constitution has been thus dealt with, viz., the decision, that a state could be sued by a private citizen,11Edition: current; Page: [226] which led to the Eleventh Amendment, whereby it was declared that the Constitution should not cover a case which the court had held it did cover.

The other fact which makes the function of an American judge so momentous is the brevity, the laudable brevity, of the Constitution. The words of that instrument are general, laying down a few large principles. The cases which will arise as to the construction of these general words cannot be foreseen till they arise. When they do arise the generality of the words leaves open to the interpreting judges a far wider field than is afforded by ordinary statutes which, since they treat of one particular subject, contain enactments comparatively minute and precise. Hence, although the duty of a court is only to interpret, the considerations affecting interpretation are more numerous than in the case of ordinary statutes, more delicate, larger in their reach and scope. They sometimes need the exercise not merely of legal acumen and judicial fairness, but of a comprehension of the nature and methods of government which one does not demand from the European judge who walks in the narrow path traced for him by ordinary statutes. It is therefore hardly an exaggeration to say that the American Constitution as it now stands, with the mass of fringing decisions which explain it, is a far more complete and finished instrument than it was when it came fire-new from the hands of the Convention. It is not merely their work but the work of the judges, and most of all of one man, the great Chief Justice Marshall.

The march of democracy in England has disposed some English political writers of the very school which in the last generation pointed to America as a terrible example, now to discover that her republic possesses elements of stability wanting in the monarchy of the mother country. They lament that England should have no supreme court. Some have even suggested that England should create one. They do not seem to perceive that the dangers they discern arise not from the want of a court but from the omnipotence of the British Parliament. They ask for a court to guard the British Constitution, forgetting that Britain has no constitution, in the American sense, and never had one, except for a short space under Oliver Cromwell. The strongest court that might be set up in England could effect nothing so long as Parliament retains its power to change every part of the law, including all the rules and doctrines that are called constitutional. If Parliament were to lose that power there would be no need to create a supreme court, because the existing judges of the land would necessarily discharge the very functions which American judges now discharge. If Parliament were to be split up into four parliaments for England, Scotland, Ireland, and Wales, and a new federal assembly were to be established withEdition: current; Page: [227] limited legislative powers, powers defined by an instrument which neither the federal assembly nor any of the four parliaments could alter, questions would forthwith arise as to the compatibility both of acts passed by the assembly with the provisions of the instrument, and of acts passed by any of the four parliaments with those passed by the assembly. These questions would come before the courts and be determined by them like any other question of law. The same thing would happen if Britain were to enter into a federal pact with her colonies, creating an imperial council, and giving it powers which, though restricted by the pact to certain purposes, transcended those of the British Parliament. The interpretation of the pact would belong to the courts, and both Parliament and the supposed council would be bound by that interpretation.12 If a new supreme court were created by Britain, it would be created not because there do not already exist courts capable of entertaining all the questions that could arise, but because the parties to the new constitution enacted for the United Kingdom, or the British Empire (as the case might be), might insist that a tribunal composed of persons chosen by some federal authority would be more certainly impartial. The preliminary therefore to any such “judicial safeguard” as has been suggested is the extinction of the present British Parliament and the erection of a wholly different body or bodies in its room.

These observations may suffice to show that there is nothing strange or mysterious about the relation of the federal courts to the Constitution. The plan which the Convention of 1787 adopted is simple, useful, and conformable to general legal principles. It is, in the original sense of the word, an elegant plan. But it is not novel, as was indeed observed by Hamilton in the Federalist. It was at work in the states before the Convention of 1787 met. It was at work in the thirteen colonies before they revolted from England. It is an application of old and familiar legal doctrines. Such novelty as there is belongs to the scheme of a supreme or rigid constitution, reserving the ultimate power to the people, and limiting in the same measure the power of the legislature.13

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It is nevertheless true that there is no part of the American system which reflects more credit on its authors or has worked better in practice. It has had the advantage of relegating questions not only intricate and delicate, but peculiarly liable to excite political passions, to the cool, dry atmosphere of judicial determination. The relations of the central federal power to the states, and the amount of authority which Congress and the president are respectively entitled to exercise, have been the most permanently grave questions in American history, with which nearly every other political problem has become entangled. If they had been left to be settled by Congress, itself an interested party, or by any dealings between Congress and the state legislatures, the dangers of a conflict would have been extreme, and instead of one civil war there might have been several. But the universal respect felt for the Constitution, a respect which grows the longer it stands, has disposed men to defer to any decision which seems honestly and logically to unfold the meaning of its terms. In obeying such a decision they are obeying, not the judges, but the people who enacted the Constitution. To have foreseen that the power of interpreting the federal Constitution and statutes, and of determining whether or not state constitutions and statutes transgress federal provisions, would be sufficient to prevent struggles between the national government and the state governments, required great insight and great faith in the soundness and power of a principle. While the Constitution was being framed the suggestion was made, and for a time seemed likely to be adopted, that a veto on the acts of state legislatures should be conferred upon the federal Congress. Discussion revealed the objections to such a plan. Its introduction would have offended the sentiment of the states, always jealous of their autonomy; its exercise would have provoked collisions with them. The disallowance of a state statute, even if it did really offend against the federal Constitution, would have seemed a political move, to be resented by a political countermove. And the veto would often have been pronounced before it could have been ascertained exactly how the state statute would work, sometimes, perhaps, pronounced in cases where the statute was neither pernicious in itself nor opposed to the federal Constitution. But by the action of the courts the self-love of the state is not wounded, and the decision declaring one of their laws invalidEdition: current; Page: [229] is nothing but a tribute to the higher authority of that supreme enactment to which they were themselves parties, and which they may themselves desire to see enforced against another state on some not remote occasion. However, the idea of a veto by Congress was most effectively demolished in the Convention by Roger Sherman, who acutely remarked that a veto would seem to recognize as valid the state statute objected to, whereas if inconsistent with the Constitution it was really invalid already and needed no veto.

By leaving constitutional questions to be settled by the courts of law another advantage was incidentally secured. The court does not go to meet the question; it waits for the question to come to it. When the court acts it acts at the instance of a party. Sometimes the plaintiff or the defendant may be the national government or a state government, but far more frequently both are private persons, seeking to enforce or defend their private rights. For instance, in the famous case14 which established the doctrine that a statute passed by a state repealing a grant of land to an individual made on certain terms by a previous statute is a law “impairing the obligation of a contract,” and therefore invalid, under art. I, § 10 of the federal Constitution; the question came before the court on an action by one Fletcher against one Peck on a covenant contained in a deed made by the latter; and to do justice between plaintiff and defendant it was necessary to examine the validity of a statute passed by the legislature of Georgia. This method has the merit of not hurrying a question on, but leaving it to arise of itself. Full legal argument on both sides is secured by the private interests which the parties have in setting forth their contentions; and the decision when pronounced, since it appears to be, as in fact it is, primarily a decision upon private rights, obtains that respect and moral support which a private plaintiff or defendant establishing his legal right is entitled to from law-abiding citizens. A state might be provoked to resistance if it saw, as soon as it had passed a statute, the federal government inviting the Supreme Court to declare that statute invalid. But when the federal authority stands silent, and a year after in an ordinary action between Smith and Jones the court decides in favour of Jones, who argued that the statute on which the plaintiff relied was invalid because it transgressed some provision of the Constitution, everybody feels that Jones was justified in so arguing, and that since judgment was given in his favour he must be allowed to retain the money which the court has found to be his, and the statute which violated his private right must fall to the ground.

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This feature has particularly excited the admiration of Continental critics. To an Englishman it seems perfectly natural, because it is exactly in this way that much of English constitutional law has been built up. The English courts had indeed no rigid documentary constitution by which to test the ordinances or the executive acts of the Crown, and their decisions on constitutional points have often been pronounced in proceedings to which the Crown or its ministers were parties. But they have repeatedly established principles of the greatest moment by judgments delivered in cases where a private interest was involved, grounding themselves either on a statute which they interpreted or on some earlier decision.15 Lord Mansfield’s famous declaration that slavery was legally impossible in England was pronounced in such a private case. Stockdale v. Hansard, in which the law regarding the publishing of debates in Parliament was settled, was an action by a private person against printers. The American method of settling constitutional questions, like all other legal questions, in actions between private parties, is therefore no new device, but a part of that priceless heritage of the English common law which the colonists carried with them across the sea, and which they have preserved and developed in a manner worthy of its own free spirit and lofty traditions.

Those err who suppose that the functions above described as pertaining to the American courts are peculiar to and essential to a federal government. These functions are not peculiar to a federation, because the distinction of fundamental laws and inferior laws may exist equally well in a unified government, did exist in each of the thirteen colonies up till 1776, did exist in each of the thirteen states from 1776 till 1789, does exist in every one of the forty-eight states now. Nor are they essential, because a federation may be imagined in which the central or national legislature should be theoretically sovereign in the same sense and to the same full extent as is the British Parliament.16 The component parts of any confederacy will no doubt be generally disposed to place their respective states’ rights under the protection of a compact unchangeable by the national legislature. But they need not do so, for they may rely on the command which as electors they have over that legislature, and may prefer the greater energy which aEdition: current; Page: [231] sovereign legislature promises to the greater security for states’ rights which a limited legislature implies. In the particular case of America it is abundantly clear that if there had been in 1787 no states jealous of their powers, but an united nation creating for itself an improved frame of government, the organs of that government would have been limited by a fundamental law just as they have in fact been, because the nation, fearing and distrusting the agents it was creating, was resolved to fetter them by reserving to itself the ultimate and overriding sovereignty.

The case of Switzerland shows that the American plan is not the only one possible to a federation. The Swiss Federal Court, while instituted in imitation of the American, is not the only authority competent to determine whether a cantonal law is void because inconsistent with the federal Constitution, for in some cases recourse must be had not to the Court but to the Federal Council, which is a sort of executive cabinet of the Confederation. And the Federal Court is bound to enforce every law passed by the federal legislature, even if it appear to conflict with the Constitution. In other words, the Swiss Constitution has reserved some points of cantonal law for an authority not judicial but political, and has made the federal legislature the sole judge of its own powers, the authorized interpreter of the Constitution, and an interpreter not likely to proceed on purely legal grounds.17 To an English or American lawyer the Swiss copy seems neither so consistent with sound theory nor so safe in practice as the American original. But the statesmen of Switzerland felt that a method fit for America might be ill-fitted for their own country, where the latitude given to the executive is greater; and the Swiss habit of constantly recurring to popular vote makes it less necessary to restrain the legislature by a permanently enacted instrument. The political traditions of the European continent differ widely from those of England and America; and the federal judicature is not the only Anglo-American institution which might fail to thrive anywhere but in its native soil.

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chapter 24

The Working of the Courts

Those readers who have followed thus far the account given of the federal courts have probably asked themselves how judicial authorities can sustain the functions which America requires them to discharge. It is plain that judges, when sucked into the vortex of politics, must lose dignity, impartiality, and influence. But how can judges keep out of politics, when political issues raising party passions come before them? Must not constitutional questions, questions as to the rights under the Constitution of the federal government against the states, and of the branches of the federal government against one another, frequently involve momentous political issues? In the troublous times during which the outlines of the English Constitution were settled, controversy often raged round the courts, because the decision of contested points lay in their hands. When Charles I could not induce Parliament to admit the right of levying contributions which he claimed, and Parliament relied on the power of the purse as its defence against Charles I, the question whether ship money could lawfully be levied was vital to both parties, and the judges held the balance of power in their hands. At that moment the law could not be changed, because the houses and the king stood opposed: hence everything turned on the interpretation of the existing law. In America the Constitution is at all times very hard to change; much more then must political issues turn on its interpretation. And if this be so, must not the interpreting court be led to assume a control over the executive and legislative branches of the government, since it has the power of declaring their acts illegal?

There is ground for these criticisms. The evil they point to has occurred and may recur. But it occurs very rarely, and may be averted by the same prudence which the courts have hitherto generally shown. The causes which have enabled the federal courts to avoid it, and to maintain their dignity and influence almost unshaken, are the following:

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I. The Supreme Court—I speak of the Supreme Court because its conduct has governed that of inferior federal courts—has always declared that it is not concerned with purely political questions. Whenever it finds any discretion given to the president, any executive duty imposed on him, it considers the manner in which he exercises his discretion and discharges the duty to be beyond its province. Whenever the Constitution has conferred upon Congress a power of legislating, the court declines to inquire whether the use of the power was in the case of a particular statute passed by Congress either necessary or desirable, or whether it was exerted in a prudent manner, for it holds all such matters to be within the exclusive province of Congress.

“In measures exclusively of a political, legislative, or executive character, it is plain that as the supreme authority as to these questions belongs to the legislative and executive departments, they cannot be re-examined elsewhere. Thus Congress, having the power to declare war, to levy taxes, to appropriate money, to regulate intercourse and commerce with foreign nations, their mode of executing these powers can never become the subject of re-examination in any other tribunal. So the power to make treaties being confided to the President and Senate, when a treaty is properly ratified, it becomes the law of the land, and no other tribunal can gainsay its stipulations. Yet cases may readily be imagined in which a tax may be laid, or a treaty made upon motives and grounds wholly beside the intention of the Constitution. The remedy, however, in such cases is solely by an appeal to the people at the elections, or by the salutary power of amendment provided by the Constitution itself.” 1

Adherence to this principle has enabled the court to avoid an immixture in political strife which must have destroyed its credit, has deterred it from entering the political arena, where it would have been weak, and enabled it to act without fear in the sphere of pure law, where it is strong. Occasionally, however, as I shall explain presently, the court has come into collision with the executive. Occasionally it has been required to give decisions which have worked with tremendous force on politics. The most famous of these was the Dred Scott case,2 in which the Supreme Court, on an action by a Negro for assault and battery against the person claiming to be his master, declared that a slave taken temporarily to a free state and to a territory in which Congress had forbidden slavery, and afterwards returning into a slave Edition: current; Page: [234]state and resuming residence there, was not a citizen capable of suing in the federal courts if by the law of the slave state he was still a slave. This was the point which actually called for decision; but the majority of the court, for there was a dissentient minority, went further, and delivered a variety of dicta on various other points touching the legal status of Negroes and the constitutional view of slavery. This judgment, since the language used in it seemed to cut off the hope of a settlement by the authority of Congress of the then (1857) pending disputes over slavery and its extension, did much to precipitate the Civil War.

Some questions, and among them many which involve political issues, can never come before the federal courts, because they are not such as are raisable in an action between parties. Of those which might be raised, some never happen to arise, while others do not present themselves in an action till some time after the statute has been passed or act done on which the court is called to pronounce. By that time it may happen that the warmth of feeling which expressed itself during debate in Congress or in the country has passed away, while the judgment of the nation at large has been practically pronounced upon the issue.

II. Looking upon itself as a pure organ of the law, commissioned to do justice between man and man, but to do nothing more, the Supreme Court has steadily refused to decide abstract questions, or to give opinions in advance by way of advice to the executive. When, in 1793, President Washington requested its opinion on the construction of the treaty of 1788 with France, the judges declined to comply.

This restriction of the Court’s duty to the determination of concrete cases arising in suits has excited so much admiration from Tocqueville and other writers, that the corresponding disadvantages must be stated. They are these:

To settle at once and forever a disputed point of constitutional law would often be a gain both to private citizens and to the organs of the government. Under the present system there is no certainty when, if ever, such a point will be settled. Nobody may care to incur the trouble and expense of taking it before the court. A suit which raises it may be compromised or dropped.

When such a question, after perhaps the lapse of years, comes before the Supreme Court and is determined, the determination may be different from what the legal profession has expected, may alter that which has been believed to be the law, may shake or overthrow private interests based upon views now declared to be erroneous.3 These are, no doubt, drawbacksEdition: current; Page: [235] incident to every system in which the decisions of courts play a great part. There are many points in the law of England which are uncertain even now, because they have never come before a court of high authority, or, having been decided in different ways by coordinate courts, have not been carried to the final court of appeal. But in England the inconvenience, should it be great, can be removed by an act of Parliament; and it can hardly be so great as it may be in America, where, since the doubtful point may be the true construction of the fundamental law of the Union, the president and Congress may be left in uncertainty as to how they shall shape their course. With the best wish in the world to act conformably to the Constitution, these authorities have no means of ascertaining before they act what, in the view of its authorized interpreters, the true meaning of the Constitution is. Moved by this consideration, seven states of the Union have by their constitutions empowered the governor or legislature to require the written opinions of the judges of the highest state court on points submitted to them.4 But the president of the United States can only consult his attorney general,5 and the houses of Congress have no legal adviser, though to be sure they are apt to receive a profusion of advice from their own legal members.6

III. Other causes which have sustained the authority of the court by saving it from immersion in the turbid pool of politics, are the strength of professional feeling among American lawyers, the relation of the bench to the bar, the power of the legal profession in the country. The keen interest which the profession takes in the law secures an unusually large number of acute and competent critics of the interpretation put upon the law by the judges. Such men form a tribunal to whose opinion the judges are sensitive, and all the more sensitive because the judges, like those of England, but unlike those of continental Europe, have been themselves practising counsel.Edition: current; Page: [236] The better lawyers of the United States do not sink their professional sentiment and opinion in their party sympathies. They know good law even when it goes against themselves, and privately condemn as bad law a decision none the less because it benefits their party or their client. The federal judge who has recently quitted the ranks of the bar remains in sympathy with it, respects its views, desires its approbation. Both his inbred professional habits, and his respect for those traditions which the bar prizes, restrain him from prostituting his office to party objects. Though he has usually been a politician, and owes his promotion to his party, his political trappings drop off him when he mounts the supreme bench. He has now nothing to fear from party displeasure, because he is irremovable (except by impeachment), nothing to hope from party favour, because he is at the top of the tree and can climb no higher. Virtue has all the external conditions in her favour. It is true that virtue is compatible with a certain bias of the mind, and compatible also with the desire to extend the power and jurisdiction of the court. But even allowing that this motive may occasionally sway the judicial mind, the circumstances which surround the action of a tribunal debarred from initiative, capable of dealing only with concrete cases that come before it at irregular itervals, unable to appropriate any of the sweets of power other than power itself, make a course of systematic usurpation more difficult and less seductive than it would be to a legislative assembly or an executive council. As the respect of the bench for the bar tends to keep the judges in the straight path, so the respect and regard of the bar for the bench, a regard grounded on the sense of professional brotherhood, ensure the moral influence of the court in the country. The bar has usually been very powerful in America, not only as being the only class of educated men who are at once men of affairs and skilled speakers, but also because there has been no nobility or territorial aristocracy to overshadow it.7 Politics have been largely in its hands, and must remain so as long as political questions continue to be involved with the interpretation of constitutions. For the first sixty or seventy years of the Republic the leading statesmen were lawyers, and the lawyers as a whole moulded and led the public opinion of the country. Now to the better class of American lawyers law was a sacred science, and the highest court which dispensed it a sort of Mecca, towards which the faces of the faithful turned. Hence every constitutional case before the Supreme Court was closely watched, the reasonings of the Court studied, and its decisions appreciated as law apartEdition: current; Page: [237] from their bearing on political doctrines. I have heard elderly men describe the interest with which, in their youth, a famous advocate who had gone to Washington to argue a case before the Supreme Court was welcomed by the bar of his own city on his return, how the rising men crowded round him to hear what he had to tell of the combat in that arena where the best intellects of the nation strove, how the respect which he never failed to express for the ability and impartiality of the Court communicated itself to them, how admiration bred acquiescence, and the whole profession accepted expositions of the law unexpected by many, perhaps unwelcome to most. When it was felt that the judges had honestly sought to expound the Constitution, and when the cogency of their reasoning was admitted, resentment, if any there had been, passed away, and the support which the bar gave to the Court ensured the obedience of the people.

That this factor in the maintenance of judicial influence proved so potent was largely due to the personal eminence of the judges. One must not call that a result of fortune which was the result of the wisdom of successive presidents in choosing capable men to sit on the supreme federal bench. Yet one man was so singularly fitted for the office of chief justice, and rendered such incomparable services in it, that the Americans have been wont to regard him as a special gift of favouring Providence. This was John Marshall, who presided over the Supreme Court from 1801 till his death in 1835 at the age of seventy-seven, and whose fame overtops that of all other American judges more than Papinian overtops the jurists of Rome or Lord Mansfield the jurists of England. No other man did half so much either to develop the Constitution by expounding it, or to secure for the judiciary its rightful place in the government as the living voice of the Constitution. No one vindicated more strenuously the duty of the Court to establish the authority of the fundamental law of the land, no one abstained more scrupulously from trespassing on the field of executive administration or political controversy. The admiration and respect which he and his colleagues won for the Court remain its bulwark. The traditions which were formed under him and them have continued in general to guide the action and elevate the sentiments of their successors.

Nevertheless, the Court has not always had smooth seas to navigate. It has more than once been shaken by blasts of unpopularity. It has not infrequently found itself in conflict with other authorities.

The first attacks arose out of its decision that it had jurisdiction to entertain suits by private persons against a state.8 This point was set at rest by theEdition: current; Page: [238] Eleventh Amendment; but the states then first learnt to fear the Supreme Court as an antagonist. In 1801, in an application requiring the secretary of state to deliver a commission, it declared itself to have the power to compel an executive officer to fulfill a ministerial duty affecting the rights of individuals.9 President Jefferson protested angrily against this claim, but it has been repeatedly reasserted, and is now undoubted law. It was in this same case that the Court first explicitly asserted its duty to treat as invalid an act of Congress inconsistent with the Constitution. In 1805 its independence was threatened by the impeachment of Justice Chase, the aim of the Republican (Democratic) party then dominant in Congress being to set a precedent for ejecting, by means of impeachment, judges (and especially Chief Justice Marshall), whose attitude on constitutional questions they condemned. The acquittal of Chase dispelled this danger; nor could John Randolph, who then led the House, secure the acceptance of an amendment to the Constitution which he thereupon proposed for enabling the president to remove federal judges on an address of both houses of Congress. In 1806 the Court for the first time pronounced a state statute void; in 1816 and 1821 it rendered decisions establishing its authority as a supreme court of appeal from state courts on “federal questions,” and unfolding the full meaning of the doctrine that the Constitution and acts of Congress duly made in pursuance of the Constitution are the fundamental and supreme law of the land. This was a doctrine which had not been adequately apprehended even by lawyers, and its development, legitimate as we now deem it, roused opposition. The Democratic party which came into power under President Jackson in 1829, were specially hostile to a construction of the Constitution which seemed to trench upon states’ rights,10 and when in 1832 the Supreme Court ordered the state of Georgia to release persons imprisoned under a Georgian statute which the court declared to be invalid,11 Jackson, whose duty it was to enforce the decision by the executive arm, remarked, “John Marshall has pronounced his judgment: let him enforce it if he can.” TheEdition: current; Page: [239] successful resistance of Georgia in the Cherokee dispute12 gave a temporary, though only a temporary, blow to the authority of the Court, and marked the beginning of a new period in its history, during which, in the hands of judges mostly appointed by the Democratic party, it made no further advance in power.

In 1857 the Dred Scott judgment, pronounced by a majority of the judges, excited the strongest outbreak of displeasure yet witnessed. The Republican party, then rising into strength, denounced this decision in the resolutions of the convention which nominated Abraham Lincoln in 1860, and its doctrine as to citizenship was expressly negatived in the fourteenth constitutional amendment adopted after the War of Secession.

It was feared that the political leanings of the judges who formed the court at the outbreak of the war would induce them to throw legal difficulties in the prosecution of the measures needed for reestablishing the authority of the Union. These fears proved ungrounded, although some contests arose as to the right of officers in the Federal army to disregard writs of habeas corpus issued by the Court.13 In 1868, having then become Republican in its sympathies by the appointment of new members as the older judges disappeared, it tended to sustain the congressional plan of reconstruction which President Johnson was endeavouring to defeat, and in subsequent cases it has given effect to most, though not to all, of the statutes passed by Congress under the three amendments which abolished slavery and secured the rights of the Negroes. In 1866 it refused to entertain proceedings instituted for the purpose of forbidding the president to execute the Reconstruction Acts.

Two of its later acts are thought by some to have affected public confidence. One of these was the reversal, first in 1871, and again, upon broader but not inconsistent grounds, in 1884, of the decision, given in 1870, which declared invalid the act of Congress making government paper a legal tender for debts. The original decision of 1870 was rendered by a majority of five to three. The Court was afterwards changed by the creation of an additional judgeship,14 and by the appointment of a new member toEdition: current; Page: [240] fill a vacancy which occurred after the settlement, though before the delivery of the first decision. Then the question was brought up again in a new case between different parties, and decided in the opposite sense (i.e., in favour of the power of Congress to pass legal tender acts) by a majority of five to four. Finally, in 1884, another suit having brought up a point practically the same though under a later statute passed by Congress, the court determined with only one dissentient voice that the power existed.15 This last decision excited some criticism, especially among the more conservative lawyers, because it seemed to remove restrictions hitherto supposed to exist on the authority of Congress, recognizing the right to establish a forced paper currency as an attribute of the sovereignty of the national government. But be the decision right or wrong, the reversal by the highest court in the land of its own previous decision may have tended to unsettle men’s reliance on the stability of the law; while the manner of the earlier reversal, following as it did on the creation of a new judgeship and the appointment of two new justices, both known to be in favour of the view which the majority of the court had just disapproved, though apparently not appointed for that reason, disclosed a weak point in the constitution of the tribunal which may some day prove fatal to its usefulness.

The other misfortune was the interposition of the court in the presidential electoral dispute of 1877.16 The five justices of the Supreme Court who were included in the electoral commission then appointed voted on party lines no less steadily than did the senators and representatives who sat on it. A function scarcely judicial, and certainly not contemplated by the Constitution, was then for the first time thrown upon the judiciary, and in discharging it the judiciary acted exactly like nonjudicial persons.

Notwithstanding this occurrence, which after all was quite exceptional, the credit and dignity of the Supreme Court stand very high. No one of its members has ever been suspected of corruption, and comparatively few have allowed their political sympathies to disturb their official judgment. Though for many years before 1909 every president has appointed only men of his own party, and frequently leading politicians of his own party,17 eachEdition: current; Page: [241] new-made judge has left partisanship behind him, while no doubt usually retaining that bias or tendency of his mind which party training produces. When a large majority of judges belong to one party, the other party regret the fact, and welcome the prospect of putting in some of their own men as vacancies occur; yet the desire for an equal representation of both parties is based, not on a fear that suitors will suffer from the influence of party spirit, but on the feeling that when any new constitutional question arises it is right that the tendencies which have characterized the view of the Constitution taken by the Democrats on the one hand and the Republicans on the other, should each be duly represented.

Apart from these constitutional questions, the value of the federal courts to the country at large has been inestimable. They have done much to meet the evils which an elective and ill-paid state judiciary inflicts on some of the newer and a few even of the older states. The federal Circuit and District judges, small as are their salaries, are in most states individually superior men to the state judges, because the greater security of tenure induces abler men to accept the post. They exercise a wider power of changing the jury than most states allow to their judges. Being irremovable, they feel themselves independent of parties and politicians, whom the elected state judge, holding for a limited term, may be tempted to conciliate with a view to reelection. Plaintiffs, therefore, when they have a choice of suing in a state court or a federal court, frequently prefer the latter; and the litigant who belongs to a foreign country, or to a different state from that in which his opponent resides, may think his prospects of an unbiased decision better before it than before a state tribunal. Nor is it without interest to add that criminal justice is more strictly administered in the federal courts.

Federal judgeships of the second and third rank (Circuit and District) have been hitherto given to the members of the president’s party, and by an equally well-established usage, to persons resident in the state or states where the Circuit or District Court is held. In 1891, however, a Republican president appointed two Democrats to be judges of the new Circuit Court of Appeals, and placed several Democrats on the (temporary) Private Land Claims Court. Cases of corruption are practically unknown, and partisanship, or subservience to powerful local interests, though sometimes charged, is infrequent. The chief defects have been the inadequacy of the salaries, and the insufficiency of the staff in the more populous commercial states to grapple with the vast and increasing business which flows in upon them. So too, in the Supreme Court, arrears have so accumulated that it is now more than three years from the time when a cause is entered till the day when itEdition: current; Page: [242] comes on for hearing. Some have proposed to meet this evil by limiting the right of appeal to cases involving a considerable sum of money; others would divide the Supreme Court into two divisional courts for the hearing of ordinary suits, reserving for the full court points affecting the construction of the Constitution.

One question remains to be put and answered.

The Supreme Court is the living voice of the Constitution,18 that is, of the will of the people expressed in the fundamental law they have enacted. It is, therefore, as someone has said, the conscience of the people, who have resolved to restrain themselves from hasty or unjust action by placing their representatives under the restriction of a permanent law. It is the guarantee of the minority, who, when threatened by the impatient vehemence of a majority, can appeal to this permanent law, finding the interpreter and enforcer thereof in a court set high above the assaults of faction.

To discharge these momentous functions, the Court must be stable even as the Constitution is stable. Its spirit and tone must be that of the people at their best moments. It must resist transitory impulses, and resist them the more firmly the more vehement they are. Entrenched behind impregnable ramparts, it must be able to defy at once the open attacks of the other departments of the government, and the more dangerous, because impalpable, seductions of popular sentiment.

Does it possess, has it displayed, this strength and stability?

It has not always followed its own former decisions. This is natural in a court whose errors cannot be cured by the intervention of the legislature. The English final Court of Appeal always follows its previous decisions, though high authorities have declared that cases may be imagined in which it would refuse to do so. And that court (the House of Lords) can afford so to adhere, because, when an old decision begins to be condemned, Parliament can forthwith alter the law. But as nothing less than a constitutional amendment can alter the law contained in the federal Constitution, the Supreme Court must choose between the evil of unsettling the law by reversing, and the evil of perpetuating bad law by following, a former decision. It may reasonably, in extreme cases, deem the latter evil the greater.

The Supreme Court feels the touch of public opinion. Opinion is strongerEdition: current; Page: [243] in America than anywhere else in the world, and judges are only men. To yield a little may be prudent, for the tree that cannot bend to the blast may be broken. There is, moreover, this ground at least for presuming public opinion to be right, that through it the progressive judgment of the world is expressed. Of course, whenever the law is clear, because the words of the Constitution are plain or the cases interpreting them decisive on the point raised, the court must look solely to those words and cases, and cannot permit any other consideration to affect its mind. But when the terms of the Constitution admit of more than one construction, and when previous decisions have left the true construction so far open that the point in question may be deemed new, is a court to be blamed if it prefers the construction which the bulk of the people deem suited to the needs of the time? A court is sometimes so swayed consciously, more often unconsciously, because the pervasive sympathy of numbers is irresistible even by elderly lawyers. A remarkable example is furnished by the decisions (in 1876) of the Supreme Court in the so-called Granger cases, suits involving the power of a state to subject railways and other corporations or persons exercising what are called “public trades” to restrictive legislation without making pecuniary compensation.19 These decisions evidently represent a different view of the sacredness of private rights and of the powers of a legislature from that entertained by Chief Justice Marshall and his contemporaries. They reveal that current of opinion which now runs strongly in America against what are called monopolies and the powers of incorporated companies.

The Supreme Court has changed its colour, i.e., its temper and tendencies, from time to time, according to the political proclivities of the men who composed it. It changes very slowly, because the vacancies in a small body happen rarely, and its composition therefore often represents the predominance of a past and not of the presently ruling party. From 1789 down till the death of Chief Justice Marshall in 1835 its tendency was to the extension of the powers of the federal government and therewith of its own jurisdiction, because the ruling spirits in it were men who belonged to the old Federalist party, though that party fell in 1800, and disappearedEdition: current; Page: [244] in 1814. From 1835 till the War of Secession its sympathies were with the doctrines of the Democratic party. Without actually abandoning the positions of the previous period, the Court, during these years when Chief Justice Taney presided over it, leant against any further extension of federal power or of its own jurisdiction. During and after the war, when the ascendency of the Republican party had begun to change the composition of the Court, a third period opened. Centralizing ideas were again powerful: the vast war powers asserted by Congress were in most instances supported by judicial decision; the rights of states while maintained (as in the Granger cases) as against private persons or bodies, were for a time regarded with less favour whenever they seemed to conflict with those of the federal government. In none of these three periods can the judges be charged with any prostitution of their functions to party purposes. Their action flowed naturally from the habits of thought they had formed before their accession to the bench, and from the sympathy they could not but feel with the doctrines on whose behalf they had contended. Even on the proverbially upright and impartial bench of England the same tendencies may be discerned. There are constitutional questions, and questions touching what may be called the policy of the law, which would be decided differenty by one English judge or by another, not from any conscious wish to favour a party or a class, but because the views which a man holds as a citizen cannot fail to colour his judgment even on legal points.

The Fathers of the Constitution studied nothing more than to secure the complete independence of the judiciary. The president was not permitted to remove the judges, nor Congress to diminish their salaries. One thing only was either forgotten or deemed undesirable, because highly inconvenient, to determine, the number of judges in the Supreme Court. Here was a weak point, a joint in the Court’s armour through which a weapon might some day penetrate. Congress having in 1801, pursuant to a power contained in the Constitution, established sixteen Circuit Courts, President Adams, immediately before he quit office, appointed members of his own party to the justiceships thus created. When President Jefferson came in, he refused to admit the validity of the appointments; and the newly elected Congress, which was in sympathy with him, abolished the Circuit Courts themselves, since it could find no other means of ousting the new justices. This method of attack, whose constitutionality has been much doubted, cannot be used against the Supreme Court, because that tribunal is directly created by the Constitution. But as the Constitution does not prescribe the number of justices, a statute may increase or diminish the number as Congress thinksEdition: current; Page: [245] fit. In 1866, when Congress was in fierce antagonism to President Johnson, and desired to prevent him from appointing any judges, it reduced the number, which was then ten, by a statute providing that no vacancy should be filled up till the number was reduced to seven. In 1869, when Johnson had been succeeded by Grant, the number was raised to nine, and presently the altered court allowed the question of the validity of the Legal Tender Act, just before determined, to be reopened. This method is plainly susceptible of further and possibly dangerous application. Suppose a Congress and president bent on doing something which the Supreme Court deems contrary to the Constitution. They pass a statute. A case arises under it. The Court on the hearing of the case unanimously declares the statue to be null, as being beyond the powers of Congress. Congress forthwith passes and the president signs another statute more than doubling the number of the justices. The president appoints to the new justiceships men who are pledged to hold the former statute constitutional. The Senate confirms his appointments. Another case raising the validity of the disputed statute is brought up to the court. The new justices outvote the old ones; the statute is held valid; the security provided for the protection of the Constitution is gone like a morning mist.

What prevents such assaults on the fundamental law—assaults which, however immoral in substance, would be perfectly legal in form? Not the mechanism of government, for all its checks have been evaded. Not the conscience of the legislature and the president, for heated combatants seldom shrink from justifying the means by the end. Nothing but the fear of the people, whose broad good sense and attachment to the great principles of the Constitution may generally be relied on to condemn such a perversion of its forms. Yet if excitement has risen high over the country, a majority of the people may acquiesce; and then it matters little whether what is really a revolution be accomplished by openly violating or by merely distorting the forms of law. To the people we come sooner or later: it is upon their wisdom and self-restraint that the stability of the most cunningly devised scheme of government will in the last resort depend.

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the national government Comparison of the American and European Systems fpage="246" lpage="263"
chapter 25

Comparison of the American and European Systems

The relations to one another of the different branches of the government in the United States are so remarkable and so full of instruction for other countries, that it seems desirable, even at the risk of a little repetition, to show by a comparison with the cabinet or parliamentary system of European countries how this complex American machinery actually works.

The English system on which have been modelled, of course with many variations, the systems of France, Belgium, Holland, Italy, Germany, Hungary (where, however, the English scheme has been compounded with an ancient and very interesting native-born constitution), Sweden, Norway, Denmark, Spain, and Portugal, as well as the constitutions of the great self-governing English colonies in North America, the Cape, and Australasia—this English system places at the head of the state a person in whose name all executive acts are done, and who is (except in France) irresponsible and irremovable.1 His acts are done by the advice and on the responsibility of ministers chosen nominally by him, but really by the representatives of the people, usually, but not necessarily, from among the members of the legislature. The representatives are, therefore, through the agents whom they select, the true government of the country. When the representative assembly ceases to trust these agents, the latter (unless they dissolve the legislature) resign, and a new set are appointed. Thus the executive as well as the legislative power really belongs to the majority of the representative chamber, though in appointing agents, an expedient which its size makes needful, it is forced to leave in the hands of these agents a measure ofEdition: current; Page: [247] discretion sufficient to make them appear distinct from it, and sometimes to tempt them to acts which their masters disapprove. As the legislature is thus in a sense executive, so the executive government, the council of ministers or cabinet, is in so far legislative that the initiation of measures rests very largely with them, and the carrying of measures through the chamber demands their advocacy and counter pressure upon the majority of the representatives. They are not merely executive agents but also legislative leaders. One may say, indeed, that the legislative and executive functions are interwoven as closely under this system as under absolute monarchies, such as Imperial Rome or modern Russia; and the fact that taxation, while effected by means of legislation, is the indispensable engine of administration, shows how inseparable are these two apparently distinct powers.

Under this system the sovereignty of the legislature may be more or less complete. It is most complete in France; least complete in Germany and Prussia, where the power of the emperor and king has remained great. But in all these countries not only are the legislature and executive in close touch with one another, but they settle their disputes without reference to the judiciary. The courts of law cannot be invoked by the executive against the legislature, because questions involving the validity of a legislative act do not come before it, since the legislature is either completely sovereign, as in England, or the judge of its own competence, as in Belgium. The judiciary, in other words, does not enter into the consideration of the political part of the machinery of government.

This system of so-called cabinet government seems to Europeans now, who observe it at work over a large part of the world, an obvious and simple system. We are apt to forget that it was never seen anywhere till the English developed it by slow degrees, and that it is a very delicate system, depending on habits, traditions, and understandings which are not easily set forth in words, much less transplanted to a new soil.

We are also prone to forget how very recent it is. People commonly date it from the reign of King William III; but it worked very irregularly till the Hanoverian kings came to the throne, and even then it at first worked by means of a monstrous system of bribery and placemongering. In the days of George III the personal power of the Crown for a while revived and corruption declined.2 The executive head of the state was, during the latterEdition: current; Page: [248] decades of the century, a factor apart from his ministers. They were not then, as now, a mere committee of Parliament dependent upon Parliament, but rather a compromise between the king’s will and the will of the parliamentary majority. They deemed and declared themselves to owe a duty to the king conflicting with, sometimes overriding, their duty to Parliament. Those phrases of abasement before the Crown which when now employed by prime ministers amuse us by their remoteness from the realities of the case, then expressed realities. In 1787, when the Constitutional Convention met at Philadelphia, the cabinet system of government was in England still immature. It was so immature that its true nature had not been perceived.3 And although we now can see that the tendency was really towards the depression of the Crown and the exaltation of Parliament, men might well, when they compared the influence of George III with that exercised by George I,4 argue in the terms of Dunning’s famous resolution, that “the power of the Crown has increased, is increasing, and ought to be diminished.” 5

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The greatest problem that free peoples have to solve is how to enable the citizens at large to conduct or control the executive business of the state. England was in 1787 the only nation (the cantons of Switzerland were so small as scarcely to be thought of) that had solved this problem, first, by the development of a representative system, secondly, by giving to her representatives a large authority over the executive. The Constitutional Convention, therefore, turned its eyes to her when it sought to constitute a free government for the new nation which the “more perfect union” of the states was calling into conscious being.

Very few of the members of the Convention had been in England so as to know her Constitution, such as it then was, at first hand. Yet there were three sources whence light fell upon it, and for that light they were grateful. One was their experience in dealing with the mother country since the quarrel began. They saw in Britain an executive largely influenced by the personal volitions of the king, and in its conduct of colonial and foreign affairs largely detached from and independent of Parliament, since it was able to take tyrannical steps without the previous knowledge or consent of Parliament, and able afterwards to defend those steps by alleging a necessity whereof Parliament, wanting confidential information, could imperfectly judge. It was in these colonial and foreign affairs that the power of the Crown chiefly lay (as, indeed, to this day the authority of Parliament over the executive is smaller here than in any other department, because secrecy and promptitude are more essential), so they could not be expected to know for how much less the king counted in domestic affairs. Moreover, there was believed to be often a secret junto which really controlled the ministry, because acting in concert with the Crown; and the Crown had powerful engines at its disposal, bribes and honours, pensions and places, engines irresistible by the average virtue of representatives whose words and votes were not reported, and nearly half of whom were the nominees of some magnate.6

The second source was the legal presentation of the English Constitution in scientific textbooks, and particularly in Blackstone, whose famous Commentaries, first published in 1765 (their substance having been delivered as professional lectures at Oxford in 1758 and several succeeding years),Edition: current; Page: [250] had quickly become the standard authority on the subject. Now Blackstone, as is natural in a lawyer who looks rather to the strict letter of the law than to the practice which had grown up modifying it, describes the royal prerogative in terms more appropriate to the days of the Stuarts than to those in which he wrote, and dwells on the independence of the executive, while also declaring the withholding from it of legislative power to be essential to freedom.7

The third source was the view of the English Constitution given by the political philosophers of the eighteenth century, among whom, since he was by far the most important, we need look at Montesquieu alone.

When the famous treatise on The Spirit of Laws appeared in 1748, a treatise belonging to the small class of books which permanently turn the course of human thought, and which, unlike St. Augustine’s City of God, turned it immediately instead of having to wait for centuries till the hour of its power arrived, it dwelt upon the separation of the executive, legislative, and judicial powers in the British Constitution as the most remarkable feature of that system. Accustomed to see the two former powers, and to some extent the third also, exercised by or under the direct control of the French monarch, Montesquieu attributed English freedom to their separation.8 The king of Great Britain then possessed a larger prerogative than he has now, and as even then it seemed on paper much larger than it really was, it was natural that a foreign observer should underrate the executive character of the British Parliament and overrate the personal authority of the monarch. Now Montesquieu’s treatise was taken by the thinkers of the next generation as a sort of Bible of political philosophy. Hamilton and Madison, the twoEdition: current; Page: [251] earliest exponents of the American Constitution they had done so much to create, cite it in the Federalist much as the schoolmen cite Aristotle, that is, as an authority to which everybody will bow; and Madison in particular constantly refers to this separation of the legislative, executive, and judicial powers as the distinguishing note of a free government.

These views of the British Constitution tallied with and were strengthened by the ideas and habits formed in the Americans by their experience of representative government in the colonies, ideas and habits which were after all the dominant factor in the construction of their political system. In these colonies the executive power had been vested either in a governor sent from England by the Crown, or in certain Proprietors, to whom the English Crown had granted hereditary rights in a province. Each representative assembly, while it made laws and voted money for the purposes of its respective commonwealth, did not control the governor, because his commission issued from the British Crown, and he was responsible thereto. A governor had no parliamentary cabinet, but only officials responsible to himself and the Crown. His veto on acts of the colonial legislature was frequently used; and that body, with no means of controlling his conduct other than the refusal to vote money, was a legislature and nothing more. Thus the Americans found and admired in their colonial (or state) systems, a separation of the legislative from the executive branch, more complete than in England; and being already proud of their freedom, they attributed its amplitude chiefly to this cause.

From their colonial and state experience, coupled with these notions of the British Constitution, the men of 1787 drew three conclusions: First, that the vesting of the executive and the legislative powers in different hands was the normal and natural feature of a free government; secondly, that the power of the executive was dangerous to liberty, and must be kept within well-defined boundaries; thirdly, that in order to check the head of the state it was necessary not only to define his powers, and appoint him for a limited period, but also to destroy his opportunities of influencing the legislature. Conceiving that ministers, as named by and acting under the orders of the president, would be his instruments rather than faithful representatives of the people, they resolved to prevent them from holding this double character, and therefore forbade “any person holding office under the United States” to be a member of either house.9 They deemed that in this way they hadEdition: current; Page: [252] rendered their legislature pure, independent, vigilant, the servant of the people, the foe of arbitrary power. Omnipotent, however, the framers of the Constitution did not mean to make it. They were sensible of the opposite dangers which might flow from a feeble and dependent executive. The proposal made in the first draft of the Constitution that Congress should elect the president, was abandoned, lest he should be merely its creature and unable to check it. To strengthen his position, and prevent intrigues among members of Congress for this supreme office, it was settled that the people should themselves, through certain electors appointed for the purpose, choose the president. By giving him the better status of a popular, though indirect, mandate, he became independent of Congress, and was encouraged to use his veto, which a mere nominee of Congress might have hesitated to do. Thus it was believed in 1787 that a due balance had been arrived at, the independence of Congress being secured on the one side and the independence of the presiden on the other. Each power holding the other in check, the people, jealous of their hardly won liberties, would be courted by each, and safe from the encroachments of either.

There was of course the risk that controversies as to their respective rights and powers would arise between these two departments. But the creation of a court entitled to place an authoritative interpretation upon the Constitution in which the supreme will of the people was expressed, provided a remedy available in many, if not in all, of such cases, and a security for the faithful observance of the Constitution which England did not, and under her system of an omnipotent Parliament could not, possess.

“They builded better than they knew.” They divided the legislature from the executive so completely as to make each not only independent, but weak even in its own proper sphere. The president was debarred from carrying Congress along with him, as a popular prime minister may carry Parliament in England, to effect some sweeping change. He is fettered in foreign policy, and in appointments, by the concurrent rights of the Senate. He is forbidden to appeal at a crisis from Congress to the country. Nevertheless his office retains a measure of solid independence in the fact that the nation regards him as a direct representative and embodiment of its majesty, while the circumstance that he holds office for four years only makes it possible for him to do acts of power during those four years which would excite alarm from a permanent sovereign. Entrenched behind the ramparts of a rigidEdition: current; Page: [253] Constitution, he has retained rights of which his prototype the English king has been gradually stripped. Congress on the other hand was weakened, as compared with the British Parliament in which one house has become dominant, by its division into two coequal houses, whose disagreement paralyzes legislative action. And it lost that direct control over the executive which the presence of ministers in the legislature, and their dependence upon a majority of the popular House, give to the Parliaments of Britain and her colonies. It has diverged widely from the English original which it seemed likely, with only a slight difference, to reproduce.

The British House of Commons has grown to the stature of a supreme executive as well as legislative council, acting not only by its properly legislative power, but through its right to displace ministers by a resolution of want of confidence, and to compel the sovereign to employ such servants as it approves. Congress remains a pure legislature, unable to displace a minister, unable to choose the agents by whom its laws are to be carried out, and having hitherto failed to develop that internal organization which a large assembly needs in order to frame and successfully pursue definite schemes of policy. Nevertheless, so far-reaching is the power of legislation, Congress has encroached, and may encroach still farther, upon the sphere of the executive. It encroaches not merely with a conscious purpose, but because the law of its being has forced it to create in its committees bodies whose expansion necessarily presses on the executive. It encroaches because it is restless, unwearied, always drawn by the progress of events into new fields of labour.

These observations may suffice to show why the Fathers of the Constitution did not adopt the English parliamentary or cabinet system. They could not adopt it because they did not know of its existence. They did not know of it because it was still immature, because Englishmen themselves had not understood it, because the recognized authorities did not mention it. There is not a word in Blackstone, much less in Montesquieu, as to the duty of ministers to resign at the bidding of the House of Commons, nor anything to indicate that the whole life of the House of Commons was destined to centre in the leadership of ministers. Whether the Fathers would have imitated the cabinet system had it been proposed to them as a model may be doubted. They would probably have thought that the creation of a frame of government so unified, so strong, so capable of swiftly and irresistibly accomplishing the purposes of a transitory majority as we now perceive it to be, might prove dangerous to those liberties of the several states, as well as of individual citizens, which filled the whole background of theirEdition: current; Page: [254] landscape. But as the idea never presented itself, we cannot say that it was rejected, nor cite the course they took as an expression of their judgment against the system under which England and her colonies have so far prospered.

That system could not be deemed to have reached its maturity till the power of the people at large had been established by the Reform Act of 1832. For its essence resides in the delicate equipoise it creates between the three powers, the ministry, the House of Commons, and the people. The House is strong, because it can call the ministry to account for every act, and can, by refusing supplies, compel their resignation. The ministry are not defenceless, because they can dissolve Parliament, and ask the people to judge between it and them. Parliament, when it displaces a ministry, does not strike at executive authority; it merely changes its agents. The ministry, when they dissolve Parliament, do not attack Parliament as an institution; they recognize the supremacy of the body in asking the country to change the individuals who compose it. Both the House of Commons and the ministry act and move in the full view of the people, who sit as arbiters, prepared to judge in any controversy that may arise. The House is in touch with the people, because every member must watch the lights and shadows of sentiment which play over his own constituency. The ministry are in touch with the people, because they are not only themselves representatives, but are heads of a great party, sensitive to its feelings, forced to weigh the effect of every act they do upon the confidence which their party places in them. The only conjuncture which this system of “checks and balances” does not provide for is that of a ministry supported by a parliamentary majority pursuing a policy which was not presented to the people at the last general election, and of which the bulk of the people in fact disapprove.10 This is a real danger, yet one which can seldom last long enough to work grave mischief, for the organs of public opinion are now so potent, and the opportunities for its expression so numerous, that the anger of a popular majority, perhaps even of a very strong minority, is likely to alarm both the ministry and the House, and to arrest them in their course.11

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The drawback to this system of exquisite equipoise is the liability of its equilibrium to be frequently disturbed, each disturbance involving either a change of government, with immense temporary inconvenience to the departments, or a general election, with immense expenditure of money and trouble in the country. It is a system whose successful working presupposes the existence of two great parties and no more, parties each strong enough to restrain the violence of the other, yet one of them steadily preponderant in any given House of Commons. Where a third, perhaps a fourth, party appears, the conditions are changed. The scales of Parliament oscillate as the weight of this detached group is thrown on one side or the other; dissolutions become more frequent, and even dissolutions may fail to restore stability. The recent history of the Third French Republic has shown the difficulties of working a chamber composed of groups; and the same source of difficulty has more recently appeared in England.12

It is worth while to compare the form which a constitutional struggle takes under the cabinet system and under that of America.

In England, if the executive ministry displeases the House of Commons, the House passes an adverse vote. The ministry have their choice to resign or to dissolve Parliament. If they resign, a new ministry is appointed from the party which has proved itself strongest in the House of Commons; and cooperation being restored between the legislature and the executive, public business proceeds. If, on the other hand, the ministry dissolve Parliament, a new Parliament is sent up which, if favourable to the existing cabinet, keeps them in office, if unfavourable, dismisses them forthwith.13 Accord is in either case restored. Should the difference arise between the House of Lords and a ministry supported by the House of Commons, and the former persist in rejecting a bill which the Commons send up, a dissolution is the constitutional remedy; and if the newly elected House of Commons reasserts the view of its predecessor, the Lords, according to the now recognized constitutional practice, yield at once. Should they, however, still stand out, there remains the extreme expedient, threatened in 1832, but never yet resorted to, of a creation by the sovereign (i.e., the ministry) of new peers sufficient to turn the balance of votes in the Upper House. Practically theEdition: current; Page: [256] ultimate decision always rests with the people, that is to say, with the party which for the moment commands a majority of electoral votes. This method of cutting knots applies to all differences that can arise between executive and legislature. It is a swift and effective method; in this swiftness and effectiveness lie its dangers as well as its merits.

In America a dispute between the president and Congress may arise over an executive act or over a bill. If over an executive act, an appointment or a treaty, one branch of Congress, the Senate, can check the president, that is, can prevent him from doing what he wishes, but cannot make him do what they wish. If over a bill which the president has returned to Congress unsigned, the two houses can, by a two-thirds majority, pass it over his veto, and so end the quarrel; though the carrying out of the bill in its details must be left to him and his ministers, whose dislike of it may render them unwilling and therefore unsuitable agents. Should there not be a two-thirds majority, the bill drops; and however important the question may be, however essential to the country some prompt dealing with it, either in the sense desired by the majority of Congress or in that preferred by the president, nothing can be done till the current term of Congress expires. The matter is then remitted to the people. If the president has still two more years in office, the people may signify their approval of his policy by electing a House in political agreement with him, or disapprove it by reelecting a hostile House. If the election of a new president coincides with that of the new House, the people have a second means provided of expressing their judgment. They may choose not only a House of the same or an opposite complexion to the last, but a president of the same or an opposite complexion. Anyhow they can now establish accord between one house of Congress and the executive.14 The Senate, however, may still remain opposed to the president, and may not be brought into harmony with him until a sufficient time has elapsed for the majority in it to be changed by the choice of new senators by the state legislatures. This is a slower method than that of Britain. It may fail in a crisis needing immediate action; but it escapes the danger of a hurried and perhaps irrevocable decision.

Englishmen deem it a merit in their system that the practical executiveEdition: current; Page: [257] of the country is directly responsible to the House of Commons. In the United States, however, not only in the national government, but in every one of the states, the opposite doctrine prevails—that the executive should be wholly independent of the legislative branch. Americans understand that this scheme involves a loss of power and efficiency, but they believe that it makes greatly for safety in a popular government. They expect the executive and the legislature to work together as well as they can, and public opinion does usually compel a degree of cooperation and efficiency which perhaps could not be expected theoretically. It is an interesting commentary on the tendencies of democratic government, that in America reliance is coming to be placed more and more, in the nation, in the state, and in the city, upon the veto of the executive as a protection to the community against the legislative branch. Weak executives frequently do harm, but a strong executive has rarely abused popular confidence. On the other hand, instances where the executive, by the use of his veto power, has arrested mischiefs due to the action of the legislature are by no means rare. This circumstance leads some Americans to believe that the day is not far distant when in England some sort of veto power, or other constitutional safeguard, must be interposed to protect the people against a hasty decision of their representatives.

While some bid England borrow from her daughter, other Americans (including two presidents), conceiving that the separation of the legislature from the executive has been carried too far in the United States, have suggested that the ministers of the president might be permitted to appear in both houses of Congress to answer questions, perhaps even to join in debate. It may be urged in support of this proposal that there is too much particularism in Congress and too strong a tendency to allow private moneyed “interests” to prevail against those general interests of the country as a whole which a British ministry is held bound to protect, and can by its command of the majority secure. But it might lead to changes more extensive than its advocates seem to contemplate. The more the president’s ministers come into contact with Congress, the more difficult will it be to maintain the independence of Congress which he and they now possess. When, before the separation of Norway from Sweden, the Norwegian Stor Thing forced the king to consent to his ministers appearing in that legislature, the king, perceiving the import of the concession, resolved to choose in future ministers in accord with the party holding a majority in the Stor Thing. It is hard to say, when one begins to make alterations in an old house, how far one will be led on in rebuilding, and I doubt whether this change in theEdition: current; Page: [258] present American system, possibly in itself desirable, might not be found to involve a reconstruction large enough to put a new face upon several parts of that system.

In the history of the United States there have been four serious conflicts between the legislature and the executive. The first was that between President Jackson and Congress. It ended in Jackson’s favour, for he got his way; but he prevailed because during the time when both houses were against him, his opponents had not a two-thirds majority. In the latter part of the struggle the (reelected) House was with him; and before he had quitted office his friends obtained a majority in the always-changing Senate. But his success was not so much the success of the executive office as of a particular president popular with the masses. The second contest, which was between President Tyler and both houses of Congress, was a drawn battle, because the majority in the houses fell short of two-thirds. In the third, between President Johnson and Congress, Congress prevailed; the enemies of the president having, owing to the disfranchisement of most Southern states, an overpowering majority in both houses, and by that majority carrying over his veto a series of acts so peremptory that even his reluctance to obey them could not destroy, though it sometimes marred, their efficiency. In the fourth case, referred to in a previous chapter, the victory remained with the president, because the congressional majority against him was slender. But a presidential victory is usually a negative victory. It consists not in his getting what he wants, but in his preventing Congress from getting what it wants.15 The practical result of the American arrangements thus comes to be that when one party possesses a large majority in Congress it can overpower the president, taking from him all but a few strictly reserved functions, such as those of pardoning, of making promotions in the army and navy, and of negotiating (not of concluding treaties, for these require the assent of the Senate) with foreign states. Where parties are pretty equally divided, i.e., when the majority is one way in the Senate, the other way in the House, or when there is only a small majority against the president in both houses, the president is in so far free that new fetters cannot be laid upon him; but he must move under those which previous legislation has imposed, and can take no step for which new legislation is needed.

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It is another and a remarkable consequence of the absence of cabinet government in America, that government does not mean the same thing there that it does in Europe. In France, Italy, and England the term means, that one set of men, united, or professing to be united, by holding one set of opinions, have obtained control of the whole machinery of government, and are working it in conformity with those opinions. Their majority in the country is represented by a majority in the legislature, and to this majority the ministry of necessity belongs. The ministry is the supreme committee of the party, and controls all the foreign as well as domestic affairs of the nation, because the majority is deemed to be the nation. It is otherwise in America. Men do, no doubt, talk of one party as being “in power,” meaning thereby the party to which the then president belongs. But they do so because that party enjoys the spoils of office, in which to so many politicians the value of power consists. They do so also because in the early days the party which prevailed in the legislative usually prevailed also in the executive department, and because the presidential election was, and still is, the main struggle which proclaimed the predominance of one or other party.16

But the Americans, when they speak of the administration party as the party in power, have, in borrowing an English phrase, applied it to utterly different facts. Their “party in power” need have no “power” beyond that of securing places for its adherents. It may be in a minority in one house of Congress, in which event it accomplishes nothing, but can at most merely arrest adverse legislation, or in a small minority in both houses of Congress, in which event it must submit to see many things done which it dislikes. And if its enemies control the Senate, even its executive arm is paralyzed. Though party feeling has generally been stronger in America than in England, and even now covers a larger proportion of the voters, and enforces a stricter discipline, party government is distinctly weaker.

Those who lament the violence of European factions may fancy America an Elysium where legislation is just and reasonable, because free from bias, where pure and enlarged views of national interest override the selfish designs of politicians. It would be nearer the truth to say that the absence of party control operates chiefly to make laws less consistent, and to prevent extended schemes of policy from being framed, because the chance ofEdition: current; Page: [260] giving continuous effect to them is small. The natural history of the party system, and of the methods whereby it is worked, belongs to a later part of this book. The system is complete, the methods are elaborate, but the Constitution opposes obstacles unknown in France or England to the complete control by a party of the whole government of the country.

We are now in a position to sum up the practical results of the system which purports to separate Congress from the executive, instead of uniting them as they are united under a cabinet government. I say “purports to separate,” because the separation, significant as it is, is less complete than current language imports, or than the Fathers of the Constitution would seem to have intended. The necessary coherence of the two powers baffled them. These results are five:

  • The president and his ministers have no initiative in Congress, little influence over Congress, except what they can exert upon individual members through the bestowal of patronage, or upon their party in Congress by threatening it with popular displeasure.
  • Congress has, together with unlimited powers of inquiry, imperfect powers of control over the administrative departments.
  • The nation does not always know how or where to fix responsibility for misfeasance or neglect. The person and bodies concerned in making and executing the laws are so related to one another that each can generally shift the burden of blame on someone else, and no one acts under the full sense of direct accountability.
  • There is a loss of force by friction, i.e., part of the energy, force, and time of the men and bodies that make up the government is dissipated in struggles with one another. This belongs to all free governments, because all free governments rely upon checks. But the more checks, the more friction.
  • There is a risk that executive vigour and promptitude may be found wanting at critical moments.

We may include these defects in one general expression. There is in the American government, considered as a whole, a want of unity. Its branches are unconnected; their efforts are not directed to one aim, do not produce one harmonious result. The sailors, the helmsman, the engineer, do not seem to have one purpose or obey one will, so that instead of making steady way the vessel may pursue a devious or zigzag course, and sometimes merely turn round and round in the water. The more closely anyone watches from year to year the history of free governments, and himself swims in the deep-eddying time current, the more does he feel that current’s force, soEdition: current; Page: [261] that human foresight and purpose seem to count for little, and ministers and parliaments to be swept along they know not whither by some overmastering fate or overruling providence. But this feeling is stronger in America than in Europe, because in America such powers as exist act with little concert and resign themselves to a conscious impotence. Clouds arise, blot out the sun overhead, and burst in a tempest; the tempest passes, and leaves the blue above bright as before, but at the same moment other clouds are already beginning to peer over the horizon. Parties are formed and dissolved, compromises are settled and assailed and violated, wars break out and are fought through and forgotten, new problems begin to show themselves, and the civil powers, presidents, and cabinets, and state governments, and houses of Congress, seem to have as little to do with all these changes, as little ability to foresee or avert or resist them, as the farmer, who sees approaching the tornado which will uproot his crop, has power to stay its devastating course.

A president can do little, for he does not lead either Congress or the nation. Congress cannot guide or stimulate the president, nor replace him by a man fitter for the emergency. The cabinet neither receive a policy from Congress nor give one to it. Each power in the state goes its own way, or wastes precious moments in discussing which way it shall go, and that which comes to pass seems to be a result not of the action of the legal organs of the state, but of some larger force which at one time uses their discord as its means, at another neglects them altogether. This at least is the impression which the history of the greatest problem and greatest struggle that America has seen, the struggle of the slaveholders against the Free Soil and Union party, culminating in the war of the rebellion, makes upon one who looking back on its events sees them all as parts of one drama. Inevitable the struggle may have been; and in its later stages passion had grown so hot, and the claims of the slaveholders so extravagant, that possibly under no scheme of government—so some high American authorities hold—could a peaceful solution have been looked for. Yet it must be remembered that the carefully devised machinery of the Constitution did little to solve that problem or avert that struggle, while the system of divided and balanced and limited powers, giving every advantage to those who stood by the existing law, and placing the rights of the states behind the bulwarks of an almost unalterable instrument, may have tended to aggravate the spirit of uncompromising resistance. The nation asserted itself at last, but not till the resources which the Constitution provided for the attainment of a peaceful solution had irretrievably failed.

Not wholly dissimilar was the course of events in the first years of theEdition: current; Page: [262] French Revolution. The Constitution framed by the National Assembly in 1791 so limited the functions and authority of each power in the state that no one person, no one body, was capable of leading either the nation or the legislature, or of framing and maintaining a constructive policy. Things were left to take their own course. The boat drifted to the rapids, and the rapids hurried her over the precipice.17

This want of unity is painfully felt in a crisis. When a sudden crisis comes upon a free state, the executive needs two things, a large command of money and powers in excess of those allowed at ordinary times. Under the European system the duty of meeting such a crisis is felt to devolve as much on the representative chamber as on the ministers who are its agents. The chamber is therefore at once appealed to for supplies, and for such legislation as the occasion demands. When these have been given, the ministry moves on with the weight of the people behind it; and as it is accustomed to work at all times with the chamber, and the chamber with it, the piston plays smoothly and quickly in the cylinder. In America the president has at ordinary times little to do with Congress, while Congress is unaccustomed to deal with executive questions. Its machinery, and especially the absence of ministerial leaders and consequent want of organization, unfit it for promptly confronting practical troubles. It is apt to be sparing of supplies, and of that confidence which doubles the value of supplies. Jealousies of the executive, which are proper in quiet times and natural towards those with whom Congress has little direct intercourse, may now be perilous, yet how is Congress to trust persons not members of its own body nor directly amenable to its control? When dangers thicken the only device may be the Roman one of a temporary dictatorship. Something like this happened in the War of Seccession, for the powers then conferred upon President Lincoln, or exercised without congressional censure by him, were almost as much in excess of those enjoyed under the ordinary law as the authority of a Roman dictator exceeded that of a Roman consul.18 Fortunately the habits of legality, which lie deep in the American as they did in the Roman people, reasserted themselves after the war was over, as they were wont to do at Rome in her earlier and better days. When the squall had passed the ship righted, and she has pursued her subsequent course on as even a keel as before.

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The defects of the tools are the glory of the workman. The more completely self-acting is the machine, the smaller is the intelligence needed to work it; the more liable it is to derangement, so much greater must be the skill and care applied by one who tends it. The English Constitution, which we admire as a masterpiece of delicate equipoises and complicated mechanism, would anywhere but in England be full of difficulties and dangers. It stands and prospers in virtue of the traditions that still live among English statesmen and the reverence that has ruled English citizens. It works by a body of understandings which no writer can formulate, and of habits which centuries have been needed to instil. So the American people have a practical aptitude for politics, a clearness of vision and capacity for self-control never equalled by any other nation. In 1861 they brushed aside their darling legalities, allowed the executive to exert novel powers, passed lightly laws whose constitutionality remains doubtful, raised an enormous army, and contracted a prodigious debt. Romans could not have been more energetic in their sense of civic duty, nor more trustful to their magistrates. When the emergency had passed away the torrent which had overspread the plain fell back at once into its safe and well-worn channel. The reign of legality returned; and only four years after the power of the executive had reached its highest point in the hands of President Lincoln, it was reduced to its lowest point in those of President Johnson. Such a people can work any Constitution. The danger for them is that this reliance on their skill and their star may make them heedless of the faults of their political machinery, slow to devise improvements which are best applied in quiet times.

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the national government General Observations on the Frame of National Government fpage="264" lpage="275"
chapter 26

General Observations on the Frame of National Government

The account which has been so far given of the working of the American government has been necessarily an account rather of its mechanism than of its spirit. Its practical character, its temper and colour, so to speak, largely depend on the party system by which it is worked, and on what may be called the political habits of the people. These will be described in later chapters. Here, however, before quitting the study of the constitutional organs of government, it is well to sum up the criticisms we have been led to make, and to add a few remarks, for which no fitting place could be found in preceeding chapters, on the general features of the national government.

I. No part of the Constitution cost its framers so much time and trouble as the method of choosing the president. They saw the evils of a popular vote. They saw also the objections to placing in the hands of Congress the election of a person whose chief duty it was to hold Congress in check. The plan of having him selected by judicious persons, specially chosen by the people for that purpose, seemed to meet both difficulties, and was therefore recommended with confidence. The presidential electors have, however, turned out mere ciphers, and the president is practically chosen by the people at large. The only importance which the elaborate machinery provided in the Constitution retains, is that it prevents a simple popular vote in which the majority of the nation should prevail, and makes the issue of the election turn on the voting in certain “pivotal” states.

II. The choice of the president, by what is now practically a simultaneous popular vote, not only involves once in every four years a tremendous expenditure of energy, time, and money, but induces a sort of crisis which, if it happens to coincide with any passion powerfully agitating the people, may be dangerous to the commonwealth.

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III. There is a risk that the result of a presidential election may be doubtful or disputed on the ground of error, fraud, or violence. When such a case arises, the difficulty of finding an authority competent to deal with it, and likely to be trusted, is extreme. Moreover, the question may not be settled until the preexisting executive has, by effluxion of time, ceased to have a right to the obedience of the citizens. The experience of the election of 1876 illustrates these dangers. Such a risk of interregna is incidental to all systems, monarchic or republican, which make the executive head elective, as witness the Romano-Germanic Empire of the Middle Ages, and the papacy. But it is more serious where he is elected by the people than where, as in France or Switzerland, he is chosen by the chambers.1

IV. The change of the higher executive officers, and of many of the lower executive officers also, which usually takes place once in four years, gives a jerk to the machinery, and causes a discontinuity of policy, unless, of course, the president has served only one term, and is reelected. Moreover, there is generally a loss either of responsibility or of efficiency in the executive chief magistrate during the last part of his term. An outgoing president may possibly be a reckless president, because he has little to lose by misconduct, little to hope from good conduct. He may therefore abuse his patronage, or gratify his whims with impunity. But more often he is a weak president.2 He has little influence with Congress, because his patronage will soon come to an end, little hold on the people, who are already speculating on the policy of his successor. His secretary of state may be unable to treat boldly with foreign powers, who perceive that he has a diminished influence in the Senate, and know that the next secretary may have different views.

The question whether the United States, which no doubt needed a president in 1789 to typify the then created political unity of the nation, might not now dispense with one, has never been raised in America, where the people, though dissatisfied with the method of choice, value the office because it is independent of Congress and directly responsible to the people. Americans condemn any plan under which, as once befell in France, theEdition: current; Page: [266] legislature can drive a president from power and itself proceed to choose a new one.3

V. The vice-president’s office is ill-conceived. His only ordinary function is to act as chairman of the Senate, but as he does not appoint the committees of that house, and has not even a vote (except a casting vote) in it, this function is of little moment. If, however, the president dies, or becomes incapable of acting, or is removed from office, the vice-president succeeds to the presidency. What is the result? The place being in itself unimportant, the choice of a candidate for it excites little interest, and is chiefly used by the party managers as a means of conciliating a section of their party. It becomes what is called “a complimentary nomination.” The man elected vice-president is therefore rarely if ever, when selected, a man in the front rank. But when the president dies during his term of office, which has happened to five out of the twenty presidents, this possibly second-class man steps into a great place for which he was never intended. Sometimes, as in the case of Mr. Arthur, he fills the place respectably. Sometimes, as in that of Andrew Johnson, he throws the country into confusion.

He is aut nullus aut Cæsar.

VI. The defects in the structure and working of Congress, and in its relations to the executive, have been so fully dwelt on already that it is enough to refer summarily to them. They are:

  • The discontinuity of congressional policy
  • The want of adequate control over officials
  • The want of opportunities for the executive to influence the legislature
  • The want of any authority charged to secure the passing of such legislation as the country needs
  • The frequency of disputes between three coordinate powers, the president, the Senate, and the House

The maintenance of a continuous policy is a difficulty in all popular governments. In the United States it is specially so, because:

  • The executive head and his ministers are necessarily (unless when a president is reelected) changed once every four years
  • One house of Congress is changed every two years
  • Neither house recognizes permanent leaders
  • No accord need exist between Congress and the executive
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There may not be such a thing as a party in power, in the European sense, because the party to which the executive belongs may be in a minority in one or both houses of Congress, in which case it cannot do anything which requires fresh legislation; may be in a minority in the Senate, in which case it can take no administrative act of importance.

There is little true leadership in political action, because the most prominent man has no recognized party authority. Congress was not elected to support him. He cannot threaten disobedient followers with a dissolution of Parliament like an English prime minister. He has not even the French president’s right of dissolving the House with the consent of the Senate.

There is often no general and continuous cabinet policy, because the cabinet has no authority over Congress, may perhaps have no influence with it.

There is no general or continuous legislative policy, because the legislature, having no recognized leaders, and no one guiding committee, acts through a large number of committees, independent of one another, and seldom able to bring their measures to maturity. What continuity exists is due to the general acceptance of a few broad maxims, such as that of nonintervention in the affairs of the Old World, and to the fact that a large nation does not frequently or lightly change its views upon leading principles. In minor matters of legislation there is little settled policy, for the houses trifle with questions, take them up in one session and drop them the next, seem insensible to the duty of completing work once begun, and are too apt to yield to the pressure which small sections, or even influential individuals in their constituencies, exert upon them to arrest some measure the public interest demands. Neither is there any security that Congress will attend to such defects in the administrative system of the country as may need a statute to correct them. In Europe the daily experience of the administrative departments discloses faults or omissions in the law which involve needless trouble to officials, needless cost to the treasury, needless injustice to classes of the people. Sometimes for their own sakes, sometimes from that desire to see things well done which is the life-breath of a good public servant, the permanent officials call the attention of their parliamentary chief, the minister, to the defective state of the law, and submit to him the draft of a bill to amend it. He brings in this bill, and if it involves no matter of political controversy (which it rarely does), he gets it passed. As an American minister has no means (except by the favour of a committee) of getting anything he proposes attended to by Congress, it is a mere chance if such amending statutes as these are introduced or pass into law. And it sometimesEdition: current; Page: [268] happens that when he sees the need for an improvement he cannot carry it, becaus selfish interests oppose it, and he has not that command of a majority by means of which a European minister is able to effect reforms.

These defects are all reducible to two. There is an excessive friction in the American system, a waste of force in the strife of various bodies and persons created to check and balance one another. There is a want of executive unity, and therefore a possible want of executive vigour. Power is so much subdivided that it is hard at a given moment to concentrate it for prompt and effective action. In fact, this happens only when a distinct majority of the people are so clearly of one mind that the several coordinate organs of government obey this majority, uniting their efforts to serve its will.

VII. The relations of the people to the legislature are in every free country so much the most refined and delicate, as well as so much the most important part of the whole scheme and doctrine of government, that we must not expect to find perfection anywhere. But comparing America with Great Britain since 1832, the working of the representative system in America seems somewhat inferior.

There are four essentials to the excellence of a representative system:

  • That the representatives shall be chosen from among the best men of the country, and, if possible, from its natural leaders;
  • That they shall be strictly and palpably responsible to their constituents for their speeches and votes;
  • That they shall have courage enough to resist a momentary impulse of their constituents which they think mischievous, i.e., shall be representatives rather than mere delegates;
  • That they individually, and the chamber they form, shall have a reflex action on the people, i.e., that while they derive authority from the people, they shall also give the people the benefit of the experience they acquire in the chamber, as well as of the superior knowledge and capacity they may be presumed to possess.

Americans declare, and no doubt correctly, that of these four requisites, the first, third, and fourth are not attained in their country. Congressmen are not chosen from among the best citizens. They mostly deem themselves mere delegates. They do not pretend to lead the people, being indeed seldom specially qualified to do so.

That the second requisite, responsibility, is not fully realized seems surprising in a democratic country, and indeed almost inconsistent with that conception of the representative as a delegate, which is supposed, perhaps erroneously, to be characteristic of democracies. Still the fact is there. OneEdition: current; Page: [269] cause, already explained, is to be found in the committee system. Another is the want of organized leadership in Congress. In Europe, a member’s responsibility usually takes the form of his being bound to support the leader of his party on all important divisions. In America, this obligation attaches only when the party has “gone into caucus,” and there resolved upon its course. Not having the right to direct, the leader cannot be held responsible for the action of the rank and file. As a third cause we may note the fact that owing to the restricted competence of Congress many of the questions which chiefly interest the voter do not come before Congress at all, so that its proceedings are not followed with that close and keen attention which the debates and divisions of European chambers excite, and some may think that a fourth cause is found in the method by which candidates for membership of Congress are selected. That method is described in later chapters (see Chapters 59–66 post). Its effect has been to make congressmen (including senators) be, and feel themselves to be, the nominees of the party organizations rather than of the citizens, and thus it has interposed what may for some purposes be called a sort of nonconducting medium between the people and their representatives.

In general the reciprocal action and reaction between the electors and Congress, what is commonly called the “touch” of the people with their agents, is not sufficiently close, quick, and delicate. Representatives ought to give light and leading to the people, just as the people give stimulus and momentum to their representatives. This incidental merit of the parliamentary system is among its greatest merits. But in America the action of the voter fails to tell upon Congress. He votes for a candidate of his own party, but he does not convey to that candidate an impulse towards the carrying of particular measures, because the candidate when in Congress will be practically unable to promote those measures, unless he happens to be placed on the committee to which they are referred. Hence the citizen, when he casts his ballot, can seldom feel that he is advancing any measure or policy, except the vague and general policy indicated in his party platform. He is voting for a party, but he does not know what the party will do, and for a man, but a man whom chance may deprive of the opportunity of advocating the measures he cares most for.

Conversely, Congress does not guide and illuminate its constituents. It is amorphous, and has little initiative. It does not focus the light of the nation, does not warm its imagination, does not dramatize principles in the deeds and characters of men.4 This happens because, in ordinary times, it lacksEdition: current; Page: [270] great leaders, and the most obvious cause why it lacks them, is its disconnection from the executive. As it is often devoid of such men, so neither does the country habitually come to it to look for them. In the old days, neither Hamilton, nor Jefferson, nor John Adams, in our own time, neither Stanton, nor Grant, nor Tilden, nor Cleveland, ever sat in Congress. Lincoln sat for two years only, and owed little of his subsequent eminence to his career there.

VIII. The independence of the judiciary, due to its holding for life, has been a conspicuous merit of the federal system, as compared with the popular election and short terms of judges in most of the states. Yet even the federal judiciary is not secure from the attacks of the two other powers, if combined. For the legislature may by statute increase the number of federal justices, increase it to any extent, since the Constitution leaves the number undetermined and the president may appoint persons whom he knows to be actuated by a particular political bias, perhaps even prepared to decide specific questions in a particular sense. Thus he and Congress together may obtain such a judicial determination of any constitutional question as they join in desiring, even although that question has been heretofore differently decided by the Supreme Court. The only safeguard is in the disapproval of the people.

It is worth remarking that the points in which the American frame of national government has proved least successful are those which are most distinctly artificial, i.e., those which are not the natural outgrowth of old institutions and well-formed habits, but devices consciously introduced to attain specific ends.5 The election of the president and vice-president by electors appointed ad hoc is such a device. The functions of the judiciary do not belong to this category; they are the natural outgrowth of commonEdition: current; Page: [271] law doctrines and of the previous history of the colonies and states; all that is novel in them, for it can hardly be called artificial, is the creation of courts coextensive with the sphere of the national government.

All the main features of American government may be deduced from two principles. One is the sovereignty of the people, which expresses itself in the fact that the supreme law—the Constitution—is the direct utterance of their will, that they alone can amend it, that it prevails against every other law, that whatever powers it does not delegate are deemed to be reserved to it, that every power in the state draws its authority, whether directly, like the House of Representatives, or in the second degree, like the president and the Senate, or in the third degree, like the federal judiciary, from the people, and is legally responsible to the people, and not to any one of the other powers.

The second principle, itself a consequence of this first one, is the distrust of the various organs and agents of government. The states are carefully safeguarded against aggression by the central government. So are the individual citizens. Each organ of government, the executive, the legislature, the judiciary, is made a jealous observer and restrainer of the others. Since the people, being too numerous, cannot directly manage their affairs, but must commit them to agents, they have resolved to prevent abuses by trusting each agent as little as possible, and subjecting him to the oversight of other agents, who will harass and check him if he attempts to overstep his instructions.

Someone has said that the American government and Constitution are based on the theology of Calvin and the philosophy of Hobbes. This at least is true, that there is a hearty Puritanism in the view of human nature which pervades the instrument of 1787. It is the work of men who believed in original sin, and were resolved to leave open for transgressors no door which they could possibly shut.6 Compare this spirit with the enthusiastic optimism of the Frenchmen of 1789. It is not merely a difference of race temperaments; it is a difference of fundamental ideas.

With the spirit of Puritanism there is blent a double portion of the spirit of legalism. Not only is there no reliance on ethical forces to help the government to work; there is an elaborate machinery of law to preserve the equilibrium of each of its organs. The aim of the Constitution seems to be not so much to attain great common ends by securing a good government as to avert the evils which will flow, not merely from a bad government,Edition: current; Page: [272] but from any government strong enough to threaten the preexisting communities or the individual citizen.

The spirit of 1776, as it speaks to us from the Declaration of Independence and the glowing periods of Patrick Henry, was largely a revolutionary spirit, revolutionary in its faith in abstract principles, revolutionary also in its determination to carry through a tremendous political change in respect of grievances which the calm judgment of history does not deem intolerable, and which might probably have been redressed by less trenchant methods. But the spirit of 1787 was an English spirit, and therefore a conservative spirit, tinged, no doubt, by the hatred to tyranny developed in the revolutionary struggle, tinged also by the nascent dislike to inequality, but in the main an English spirit, which desired to walk in the old paths of precedent, which thought of government as a means of maintaining order and securing to everyone his rights, rather than as a great ideal power, capable of guiding and developing a nation’s life. And thus, though the Constitution of 1789 represented a great advance on the still oligarchic system of contemporary England, it was yet, if we regard simply its legal provisions, the least democratic of democracies. Had the points which it left undetermined, as for instance the qualifications of congressional electors, been dealt with in an aristocratic spirit, had the legislation of Congress and of the several states taken an aristocratic turn, it might have grown into an aristocratic system. The democratic character which it now possesses is largely the result of subsequent events, which have changed the conditions under which it had to work, and have delivered its development into the hands of that passion for equality which has become a powerful factor in the modern world everywhere.

He who should desire to draw an indictment against the American scheme of government might make it a long one, and might for every count in it cite high American authority and adduce evidence from American history. Yet a European reader would greatly err were he to conclude that this scheme of government is a failure, or is, indeed, for the purposes of the country, inferior to the political system of any of the great nations of the Old World.

All governments are faulty; and an equally minute analysis of the constitutions of England, or France, or Germany would disclose mischiefs as serious, relatively to the problems with which those states have to deal, as those we have noted in the American system. To anyone familiar with the practical working of free governments it is a standing wonder that they work at all. The first impulse of mankind is to follow and obey; servitude rather than freedom is their natural state. With freedom, when it emergesEdition: current; Page: [273] among the more progressive races, there come dissension and faction; and it takes many centuries to form those habits of compromise, that love of order, and that respect for public opinion which make democracy tolerable. What keeps a free government going is the good sense and patriotism of the people, or of the guiding class, embodied in usages and traditions which it is hard to describe, but which find, in moments of difficulty, remedies for the inevitable faults of the system. Now, this good sense and that power of subordinating sectional to national interests which we call patriotism, exist in higher measure in America than in any of the great states of Europe. And the United States, more than any other country, are governed by public opinion, that is to say, by the general sentiment of the mass of the nation, which all the organs of the national government and of the state governments look to and obey.7

A philosopher from Jupiter or Saturn who should examine the Constitution of England or that of America would probably pronounce that such a body of complicated devices, full of opportunities for conflict and deadlock, could not work at all. Many of those who examined the American Constitution when it was launched did point to a multitude of difficulties, and confidently predicted its failure. Still more confidently did the European enemies of free government declare in the crisis of the War of Secession that “the republican bubble had burst.” Some of these censures were well grounded, though there were also defects which had escaped criticism, and were first disclosed by experience. But the Constitution has lived on in spite of all defects, and seems stronger now than at any previous epoch.

Every constitution, like every man, has “the defects of its good qualities.” If a nation desires perfect stability it must put up with a certain slowness and cumbrousness; it must face the possibility of a want of action where action is called for. If, on the other hand, it seeks to obtain executive speed and vigour by a complete concentration of power, it must run the risk that power will be abused and irrevocable steps too hastily taken. “The liberty-loving people of every country,” says Judge Cooley,8 “take courage from American freedom, and find augury of better days for themselves from American prosperity. But America is not so much an example in her liberty as in the covenanted and enduring securities which are intended to prevent liberty degenerating into licence, and to establish a feeling of trust and repose under a beneficent government, whose excellence, so obvious in its freedom, is still more conspicuous in its careful provision for permanenceEdition: current; Page: [274] and stability.” Those faults on which I have laid stress, the waste of power by friction, the want of unity and vigour in the conduct of affairs by executive and legislature, are the price which the Americans pay for the autonomy of their states, and for the permanence of the equilibrium among the various branches of their government. They pay this price willingly, because these defects are far less dangerous to the body politic than they would be in a European country. Take for instance the shortcomings of Congress as a legislative authority. Every European country is surrounded by difficulties which legislation must deal with, and that promptly. But in America, where those relics of mediæval privilege and injustice that still cumber most parts of the Old World either never existed, or were long ago abolished, where all the conditions of material prosperity exist in ample measure, and the development of material resources occupies men’s minds, where nearly all social reforms lie within the sphere of state action, in America there is less need and less desire than in Europe for a perennial stream of federal legislation. People have been contented if things go on fairly well as they are. Political philosophers, or philanthropists, perceive not a few improvements which federal statutes might effect, but the mass of the nation has not greatly complained, and the wise see Congress so often on the point of committing mischievous errors that they do not deplore the barrenness of session after session.

Every European state has to fear not only the rivalry but the aggression of its neighbours. Even Britain, so long safe in her insular home, has lost some of her security by the growth of steam navies, and has in her Indian and colonial possessions given pledges to Fortune all over the globe. She, like the powers of the European continent, must maintain her system of government in full efficiency for war as well as for peace, and cannot afford to let her armaments decline, her finances become disordered, the vigour of her executive authority be impaired, sources of internal discord continue to prey upon her vitals. But America lives in a world of her own, ipsa suis pollens opibus, nihil indiga nostri. Safe from attack, safe even from menace, she hears from afar the warring cries of European races and faiths, as the gods of Epicurus listened to the murmurs of the unhappy earth spread out beneath their golden dwellings,

  • “Sejuncta a rebus nostris semotaque longe.”

Had Canada or Mexico grown to be a great power, had France not sold Louisiana, or had England, rooted on the American continent, become a military despotism, the United States could not indulge the easy optimism which makes them tolerate the faults of their government. As it is, thatEdition: current; Page: [275] which might prove to a European state a mortal disease is here nothing worse than a teasing ailment. Since the War of Secession ended, no serious danger has arisen either from within or from without to alarm transatlantic statesmen. Social convulsions from within, warlike assaults from without, seem now as unlikely to try the fabric of the American Constitution, as an earthquake to rend the walls of the Capitol. This is why the Americans submit, not merely patiently but hopefully, to the defects of their government. The vessel may not be any better built, or found, or rigged than are those which carry the fortunes of the great nations of Europe. She is certainly not better navigated. But for the present at least—it may not always be so—she sails upon a summer sea.

It must never be forgotten that the main object which the framers of the Constitution set before themselves has been achieved. When Siéyès was asked what he had done during the Reign of Terror, he answered, “I lived.” The Constitution as a whole has stood and stands unshaken. The scales of power have continued to hang fairly even. The president has not corrupted and enslaved Congress; Congress has not paralyzed and cowed the president. The legislative may have sometimes appeared to be gaining on the executive department; but there are also times when the people support the president against the legislature, and when the legislature is obliged to recognize the fact. Were George Washington to return to earth, he might be as great and useful a president as he was more than a century ago. Neither the legislature nor the executive has for a moment threatened the liberties of the people. The states have not broken up the Union, and the Union has not absorbed the states. No wonder that the Americans are proud of an instrument under which this great result has been attained, which has passed unscathed through the furnace of civil war, which has been found capable of embracing a body of commonwealths more than three times as numerous, and with thirty-fold the population of the original states, which has cultivated the political intelligence of the masses to a point reached in no other country, which has fostered and been found compatible with a larger measure of local self-government than has existed elsewhere. Nor is it the least of its merits to have made itself beloved. Objections may be taken to particular features, and these objections point, as most American thinkers are agreed, to practicable improvements which would preserve the excellences and remove some of the inconveniences. But reverence for the Constitution has become so potent a conservative influence, that no proposal of fundamental change seems likely to be entertained. And this reverence is itself one of the most wholesome and hopeful elements in the character of the American people.

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chapter 27

The Federal System

Having examined the several branches of the national government and the manner in which they work together, we may now proceed to examine the American commonwealth as a federation of states. The present chapter is intended to state concisely the main features which distinguish the federal system, and from which it derives its peculiar character. Three other chapters will describe its practical working, and summarize the criticisms that may be passed upon it.

The contests in the Convention of 1787 over the framing of the Constitution, and in the country over its adoption, turned upon two points: the extent to which the several states should be recognized as independent and separate factors in the construction of the national government, and the quantity and nature of the powers which should be withdrawn from the states to be vested in that government. It has been well remarked that “the first of these, the definition of the structural powers, gave more trouble at the time than the second, because the line of partition between the powers of the States and the Federal government had been already fixed by the whole experience of the country.” But since 1791 there has been practically no dispute as to the former point, and little as to the propriety of the provisions which define the latter. On the interpretation of these provisions there has, of course, been endless debate, some deeming the Constitution to have taken more from the states, some less; while still warmer controversies have raged as to the matters which the instrument does not expressly deal with, and particularly whether the states retain their sovereignty, and with it the right of nullifying or refusing to be bound by certain acts of the national government, and in the last resort of withdrawing from the Union. As these latter questions (nullification and secession) have now been settled by the Civil War, we may say that in the America of today there exists a general agreement:

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  • That every state on entering the Union finally renounced its sovereignty, and is now forever subject to the federal authority as defined by the Constitution;
  • That the functions of the states as factors of the national government are satisfactory, i.e., sufficiently secure its strength and the dignity of these communities;
  • That the delimitation of powers between the national government and the states, contained in the Constitution, is convenient, and needs no fundamental alteration.1

The ground which we have to tread during the remainder of this chapter is therefore no longer controversial ground, but that of well-established law and practice.

I. The distribution of powers between the national and the state governments is effected in two ways: positively, by conferring certain powers on the national government; negatively, by imposing certain restrictions on the states. It would have been superfluous to confer any powers on the states, because they retain all powers not actually taken from them. A lawyer may think that it was equally unnecessary and, so to speak, inartistic, to lay any prohibitions on the national government, because it could ex hypothesi exercise no powers not expressly granted. However, the anxiety of the states to fetter the master they were giving themselves caused the introduction of provisions qualifying the grant of express powers, and interdicting the national government from various kinds of action on which it might otherwise have been tempted to enter.2 The matter is further complicated by the fact that the grant of power to the national government is not in all cases an exclusive grant; i.e., there are matters which both, or either, the states and the national government may deal with. “The mere grant of a power to Congress does not of itself, in most cases, imply a prohibition upon the States to exercise the like power. . . . It is not the mere existence of theEdition: current; Page: [278] National power but its exercise which is incompatible with the exercise of the same power by the States.” 3 Thus we may distinguish the following classes of governmental powers:

  • Powers vested in the national government alone
  • Powers vested in the states alone
  • Powers exercisable by either the national government or the states
  • Powers forbidden to the national government
  • Powers forbidden to the state governments

It might be thought that the two latter classes are superfluous, because whatever is forbidden to the national government is permitted to the states, and conversely, whatever is forbidden to the states is permitted to the national government. But this is not so. For instance, Congress can grant no title of nobility (art. I, § 9). But neither can a state do so (art. I, § 10). The national government cannot take private property for public use without just compensation (amendment V). Apparently neither can any state do so (amendment XIV, as interpreted in several cases). So no state can pass any law impairing the obligation of a contract (art. I, § 10). But the national government, although not subject to a similar direct prohibition, has received no general power to legislate as regards ordinary contracts, and might therefore in some cases find itself equally unable to pass a law which a state legislature, though for a different reason, could not pass.4 So no state can pass any ex post facto law. Neither can Congress.

What the Constitution has done is not to cut in half the totality of governmental functions and powers, giving part to the national government and leaving all the rest to the states, but to divide up this totality of authority into a number of parts which do not exhaust the whole, but leave a residuum of powers neither granted to the Union nor continued to the states but reserved to the people, who, however, can put them in force only by the difficult process of amending the Constitution. In other words, there are things in America which there exists no organized and permanent authority capable of legally doing, not a state, because it is expressly forbidden, not the national government, because it either has not received the competence or has been expressly forbidden. Suppose, for instance, that there should arise a wish to pass for California such a measure as the Irish Land ActEdition: current; Page: [279] passed by the British Parliament in 1881. Neither the state legislature of California, nor the people of California assembled in a constitutional convention, could pass such a measure, because it would violate the obligation of contracts, and thereby transgress art. I, § 10 of the federal Constitution. Whether the federal Congress could pass such a measure is at least extremely doubtful, because the Constitution, though it has imposed no prohibition such as that which restricts a state, does not seem to have conferred on Congress the right of legislating on such a matter at all.5 If, therefore, an absolute and overwhelming necessity for the enactment of such a measure should arise, the safer if not the only course would be to amend the federal Constitution, either by striking out the prohibition on the states or by conferring the requisite power on Congress, a process which would probably occupy more than a year, and which requires the concurrence of two-thirds of both houses of Congress and of three-fourths of the states.

II. The powers vested in the national government alone are such as relate to the conduct of the foreign relations of the country and to such common national purposes as the army and navy, internal commerce, currency, weights and measures, and the post office, with provisions for the management of the machinery, legislative, executive, and judicial, charged with these purposes.6

The powers which remain vested in the states alone are all the other ordinary powers of internal government, such as legislation on private law, civil and criminal, the maintenance of law and order, the creation of local institutions, the provision for education and the relief of the poor, together with taxation for the above purposes.

III. The powers which are exercisable concurrently by the national government and by the states are:

  • Powers of legislation on some specified subjects, such as bankruptcy and certain commercial matters (e.g., pilot laws and harbour regulations), but so that state legislation shall take effect only in the absence of federal legislation;
  • Powers of taxation, direct or indirect, but so that neither Congress nor a state shall tax exports from any state, and so that neither any stateEdition: current; Page: [280] shall, except with the consent of Congress, tax any corporation or other agency created for federal purposes or any act done under federal authority, nor the national government tax any state or its agencies or property;7
  • Judicial powers in certain classes of cases where Congress might have legislated, but has not, or where a party to a suit has a choice to proceed either in a federal or a state court;
  • Powers of determining matters relating to the election of representatives and senators (but if Congress determines, the state law gives way).

IV. The prohibitions imposed on the national government are set forth in art. I, § 9, and in the first ten amendments. The most important are:

  • Writ of habeas corpus may not be suspended, nor bill of attainder or ex post facto law passed.8
  • No commercial preference shall be given to one state over another.
  • No title of nobility shall be granted.
  • No law shall be passed establishing or prohibiting any religion, or abridging the freedom of speech or of the press, or of public meeting, or of bearing arms.
  • No religious test shall be required as a qualification for any office under the United States.
  • No person shall be tried for a capital or otherwise infamous crime unless on the presentment of a grand jury, or be subjected to a second capital trial for the same offence, or be compelled to be a witness against himself, or be tried otherwise than by a jury of his state and district.
  • No common law action shall be decided except by a jury where the value in dispute exceeds $20, and no fact determined by a jury shall be re-examined otherwise than by the rules of the common law.9

V. The prohibitions imposed on the states are contained in Art. I, § 10, and in the three latest amendments. They are intended to secure the national government against attempts by the states to trespass on its domain, and to protect individuals against oppressive legislation.

No state shall—Make any treaty or alliance; coin money; make anythingEdition: current; Page: [281] but gold and silver coin a legal tender; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts; grant any titles of nobility.

No state shall without the consent of Congress—Lay duties on exports or imports (the produce of such, if laid, going to the national treasury); keep troops or ships of war in peace time; enter into an agreement with another state or with any foreign power; engage in war, unless actually invaded or in imminent danger.

Every state must—Give credit to the records and judicial proceedings of every other state; extend the privileges and immunities of citizens to the citizens of other states; deliver up fugitives from justice to the state entitled to claim them.

No state shall have any but a republican form of government.

No state shall maintain slavery; abridge the privileges of any citizen of the United States, or deny to him the right of voting, in respect of race, colour, or previous servitude; deprive any person of life, liberty, or property without due process of law; deny to any person the equal protection of the laws.

Note that this list contains no prohibition to a state to do any of the following things: Establish a particular form of religion; endow a particular form of religion, or educational or charitable establishments connected therewith; abolish trial by jury in criminal or civil cases; suppress the freedom of speaking, writing, and meeting (provided that this be done equally as between different classes of citizens, and provided also that it be not done to such an extent as to amount to a deprivation of liberty without due process of law); limit the electoral franchise to any extent; extend the electoral franchise to women, minors, aliens.

These omissions are significant. They show that the framers of the Constitution had no wish to produce uniformity among the states in government or institutions, and little care to protect the citizens against abuses of state power.10 They were content to trust for this to provisions of the state constitutions. Their chief aim was to secure the national government against encroachments on the part of the states, and to prevent causes of quarrel both between the central and state authorities and between the several states. The result has, on the whole, justified their action. So far from abusing their power of making themselves unlike one another, the statesEdition: current; Page: [282] have tended to be too uniform, and have made fewer experimental changes in their institutions.

VI. The powers vested in each state are all of them original and inherent powers, which belonged to the state before it entered the Union. Hence they are prima facie unlimited, and if a question arises as to any particular power, it is presumed to be enjoyed by the state, unless it can be shown to have been taken away by the federal Constitution; or, in other words, a state is not deemed to be subject to any restriction which the Constitution has not distinctly imposed.

The powers granted to the national government are delegated powers, enumerated in and defined by the instrument which has created the Union. Hence the rule that when a question arises whether the national government possesses a particular power, proof must be given that the power was positively granted. If not granted, it is not possessed, because the Union is an artificial creation, whose government can have nothing but what the people have by the Constitution conferred. The presumption is therefore against the national government in such a case, just as it is for the state in a like case.11

VII. The authority of the national government over the citizens of every state is direct and immediate, not exerted through the state organization, and not requiring the cooperation of the state government. For most purposes the national government ignores the states; and it treats the citizens of different states as being simply its own citizens, equally bound by its laws. The federal courts, revenue officers, and post office draw no help from any state officials, but depend directly on Washington. Hence, too, of course, there is no local self-government in federal matters. No federal official is elected by the people of any local area. Local government is purely a state affair.

On the other hand, the state in no wise depends on the national government for its organization or its effective working. It is the creation of its own inhabitants. They have given it its constitution. They administer its government. It goes on its own way, touching the national government at but few points. That the two should touch at the fewest possible points was the intent of those who framed the federal Constitution, for they saw thatEdition: current; Page: [283] the less contact, the less danger of collision. Their aim was to keep the two mechanisms as distinct and independent of each other as was compatible with the still higher need of subordinating, for national purposes, the state to the central government.

VIII. It is a further consequence of this principle that the national government has but little to do with the states as states. Its relations are with their citizens, who are also its citizens, rather than with them as ruling commonwealths. In the following points, however, the Constitution does require certain services of the states:

  • It requires each state government to direct the choice of, and accredit to the seat of the national government, two senators and so many representatives as the state is entitled to send.
  • It requires similarly that presidential electors be chosen, meet, and vote in the states, and that their votes be transmitted to the national capital.
  • It requires each state to organize and arm its militia, which, when duly summoned for active service, are placed under the command of the president.
  • It requires each state to maintain a republican form of government. (Conversely, a state may require the national government to protect it against invasion or domestic violence.)

Note in particular that the national government does not, as in some other federations:

  • Call upon the states, as commonwealths, to contribute funds to its support;
  • Issue (save in so far as may be needed in order to secure a republican form of government) administrative orders to the states, directing their authorities to carry out its laws or commands;
  • Require the states to submit their laws to it, and veto such as it disapproves.

The first two things it is not necessary for the national government to do, because it levies its taxes directly by its own collectors, and enforces its laws, commands, and judicial decrees by the hands of its own servants. The last can be dispensed with because the state laws are ipso jure invalid, if they conflict with the Constitution or any treaty or law duly made under it (art. VI, § 2), while if they do not so conflict they are valid, any act of the national government notwithstanding.

Neither does the national government allow its structure to be dependent on the action of the states. “To make it impossible for a State or group of States to jeopardize by inaction or hostile action the existence of the centralEdition: current; Page: [284] government,” was a prime object with the men of 1787, and has greatly contributed to the solidity of the fabric they reared. The de facto secession of eleven states in 1860–61 interfered with the regular legal conduct neither of the presidential election of 1864 nor of the congressional elections from 1861 to 1865. Those states were not represented in Congress; but Congress itself went on diminished in numbers yet with its full legal powers, as the British Parliament would go on though all the peers and representatives from Scotland might be absent.

IX. A state is, within its proper sphere, just as legally supreme, just as well entitled to give effect to its own will, as is the national government within its sphere; and for the same reason. All authority flows from the people. The people have given part of their supreme authority to the national, part to the state governments. Both hold by a like title, and therefore the national government, although superior wherever there is a concurrence of powers, has no more right to trespass upon the domain of a state than a state has upon the domain of federal action. That the course which a state is following is pernicious, that its motives are bad and its sentiments disloyal to the Union, makes no difference until or unless it infringes on the sphere of federal authority. It may be thought that however distinctly this may have been laid down as a matter of theory, in practice the state will not obtain the same justice as the national government, because the court which decides points of law in dispute between the two is in the last resort a federal court, and therefore biased in favour of the federal government. In fact, however, little or no unfairness has arisen from this cause.12 The Supreme Court may, as happened for twenty years before the War of Secession, be chiefly composed of states’ rights men. In any case the court cannot stray far from the path which previous decisions have marked out.

X. There are several remarkable omissions in the Constitution of the American federation.

One is that there is no grant of power to the national government to coerce a recalcitrant or rebellious state. Another is that nothing is said as to the right of secession. Anyone can understand why this right should not have been granted. But neither is it mentioned to be negatived.

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There is no abstract or theoretic declaration regarding the nature of the federation and its government, nothing as to the ultimate supremacy of the central authority outside the particular sphere allotted to it, nothing as to the so-called sovereign rights of the states. As if with a prescience of the dangers to follow, the wise men of 1787 resolved to give no opening for abstract inquiry and metaphysical dialectic.13 But in vain. The human mind is not to be so restrained. If the New Testament had consisted of no other writings than the Gospel of St. Matthew and the Epistle of St. James, there would have been scarcely the less a crop of speculative theology. The dryly legal and practical character of the Constitution did not prevent the growth of a mass of subtle and, so to speak, scholastic metaphysics regarding the nature of the government it created. The inextricable knots which American lawyers and publicists went on tying, down till 1861, were cut by the sword of the North in the Civil War, and need concern us no longer. It is now admitted that the Union is not a mere compact between commonwealths, dissoluble at pleasure, but an instrument of perpetual efficacy,14 emanatingEdition: current; Page: [286] from the whole people, and alterable by them only in the manner which its own terms prescribe. It is “an indestructible Union of indestructible States.”

It follows from the recognition of the indestructibility of the Union that there must somewhere exist a force capable of preserving it. The national government is now admitted to be such a force. It can exercise all powers essential to preserve and protect its own existence and that of the states, and the constitutional relation of the states to itself, and to one another.

“May it not,” someone will ask, “abuse these powers, abuse them so as to extinguish the states themselves, and turn the federation into a unified government. What is there but the federal judiciary to prevent this catastrophe? And the federal judiciary has only moral and not also physical force at its command.”

No doubt it may, but not until public opinion supports it in so doing—that is to say, not until the mass of the nation which now maintains, because it values, the federal system, is possessed by a desire to overthrow that system. Such a desire may express itself in proper legal form by carrying amendments to the Constitution which will entirely change the nature of the government. Or if the minority be numerous enough to prevent the passing of such amendments, and if the desire of the majority be sufficiently vehement, the majority which sways the national government may disregard legal sanctions and effect its object by a revolution. In either event—and both are improbable—the change which will have passed upon the sentiments of the American people will be a sign that federalism has done its work, and that the time has arrived for new forms of political life.

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chapter 28

Working Relations of the National and the State Governments

The characteristic feature and special interest of the American Union is that it shows us two governments covering the same ground yet distinct and separate in their action. It is like a great factory wherein two sets of machinery are at work, their revolving wheels apparently intermixed, their bands crossing one another, yet each set doing its own work without touching or hampering the other. To keep the national government and the state governments each in the allotted sphere, preventing collision and friction between them, was the primary aim of those who formed the Constitution, a task the more needful and the more delicate because the states had been until then almost independent and therefore jealous of their privileges, and because, if friction should arise, the national government could not remove it by correcting defects in the machinery. For the national government, being itself the creature of the Constitution, was not permitted to amend the Constitution, but could only refer it back for amendment to the people of the states or to their legislatures. Hence the men of 1787, feeling the cardinal importance of anticipating and avoiding occasions of collision, sought to accomplish their object by the concurrent application of two devices. One was to restrict the functions of the national government to the irreducible minimum of functions absolutely needed for the national welfare, so that everything else should be left to the states. The other was to give that government, so far as those functions extended, a direct and immediate relation to the citizens, so that it should act on them not through the states but of its own authority and by its own officers. These are fundamental principles whose soundness experience has approved, and which will deserve to be considered by those who in time to come may have in other countries to frame federal or quasi-federal constitutions. They wereEdition: current; Page: [288] studied, and to a large extent, though in no slavish spirit, adopted by the founders of the present constitution of the Swiss Confederation, a constitution whose success bears further witness to the soundness of the American doctrines.

The working relations of the national government to the states may be considered under two heads, viz., its relations to the states as corporate bodies, and its relations to the citizens of the states as individuals, they being also citizens of the Union.

The national government touches the states as corporate commonwealths in three points. One is their function in helping to form the national government; another is the control exercised over them by the federal Constitution through the federal courts; the third is the control exercised over them by the federal legislature and executive in the discharge of the governing functions which these latter authorities possess.

I. The states serve to form the national government by choosing presidential electors, by choosing senators, and by fixing the franchise which qualifies citizens to vote for members of the House of Representatives.1 No difficulty has ever arisen (except during the Civil War) from any unwillingness of the states to discharge these duties, for each state is eager to exercise as much influence as it can on the national executive and Congress. But note how much latitude has been left to the states. A state may appoint its presidential electors in any way it pleases. All states now do appoint them by popular vote. But during the first thirty years of the Union many states left the choice of electors to their respective legislatures. So a state may, by its power of prescribing the franchise for its state elections, prescribe whatever franchise it pleases for the election of its members of the federal House of Representatives, and may thus admit persons who would in other states be excluded from the suffrage, or exclude persons who would in other states be admitted. For instance, at least nine states now allow aliens (i.e., foreigners not yet naturalized) to vote; and nine2 states admit women to vote at all state elections, thereby admitting them to vote also at congressional and presidential elections.3 The only restriction imposed on state discretion in this respect is that of the Fifteenth Amendment, which forbids any personEdition: current; Page: [289] to be deprived of suffrage, on “account of race, colour, or previous condition of servitude.” 4

II. The federal Constitution deprives the states of certain powers they would otherwise enjoy. Some of these, such as that of making treaties, are obviously unpermissible, and such as the state need not regret.5 Others, however, seriously restrain their daily action. They are liable to be sued in the federal courts by another state or by a foreign power.6 They cannot, except with the consent of Congress, tax exports or imports, or in any case pass a law impairing the obligation of a contract. They must surrender fugitives from the justice of any other state. Whether they have transgressed any of these restrictions is a question for the courts of law, and, if not in the first instance, yet always in the last resort a question for the federal Supreme Court. If it is decided that they have transgressed, their act, be it legislative or executive, is null and void.7

The president as national executive, and Congress as national legislature, have also received from the Constitution the right of interfering in certain specified matters with the governments of the states. Congress of course does this by way of legislation, and when an act of Congress, made within the powers conferred by the Constitution, conflicts with a state statute, the former prevails against the latter. It prevails by making the latter null and void, so that if a state statute has been duly passed upon a matter not forbidden to a state by the Constitution, and subsequently Congress passes an act on the same matter, being one whereon Congress has received theEdition: current; Page: [290] right to legislate, the state statute, which was previously valid, now becomes invalid to the extent to which it conflicts with the act of Congress. For instance, Congress has power to establish a uniform law of bankruptcy over the whole Union. Formerly, in the exercise of this power, it passed bankruptcy laws. When these were repealed, the subject was left to the state laws;8 and still later, in 1898, Congress again legislated on the subject, depriving these state laws of their force.9 If the law passed by Congress were again repealed, they would again spring into life. The field of this so-called concurrent legislation is large, for Congress has not yet exercised all the powers vested in it of superseding state action.

It was remarked in the last chapter that in determining the powers of Congress on the one hand and of a state government on the other, opposite methods have to be followed. The presumption is always in favour of the state; and in order to show that it cannot legislate on a subject, there must be pointed out within the four corners of the Constitution some express prohibition of the right which it prima facie possesses or some implied prohibition arising from the fact that legislation by it would conflict with legitimate federal authority.10 On the other hand, the presumption is always against Congress, and to show that it can legislate, some positive grant of power to Congress in the Constitution must be pointed out.11 When the grant is shown, then the act of Congress has, so long as it remains on the statute book, all the force of the Constitution itself. In some instances the grant of power to Congress to legislate is auxiliary to a prohibition imposed on the states. This is notably the case as regards the amendments to the Constitution, passed for the protection of the lately liberated Negroes. They interdict the states from either recognizing slavery, or discriminating in any way against any class of citizens; they go even beyond citizens in their care, and declare that “no State shall deny to any person within its jurisdiction the equal protection of the laws.” Now, by each of these amendments, Congress is also empowered, which practically means enjoined, to “enforce by appropriate legislation” the prohibitions laid upon the states. Congress has done so, but some of its efforts have been held to go beyond theEdition: current; Page: [291] directions of the amendments, and to be therefore void.12 The grant of power has not covered them.

Where the president interferes with a state, he does so either under his duty to give effect to the legislation of Congress, or under the discretionary executive functions which the Constitution has entrusted to him. So if any state were to depart from a republican form of government, it would be his duty to bring the fact to the notice of Congress in order that the guarantee of that form contained in the Constitution might be made effective. If an insurrection broke out against the authority of the Union, he would (as in 1861) send federal troops to suppress it. If there should be rival state governments, each claiming to be legitimate, the president might, especially if Congress were not sitting, recognize and support the one which he deemed regular and constitutional.13

Are these, it may be asked, the only cases in which federal authority can interfere within the limits of a state to maintain order? Are law and order, i.e., the punishment of crimes and the enforcement of civil rights, left entirely to state authorities? The answer is:

  • Offences against federal statutes are justiciable in federal courts, and punishable under federal authority. There is no federal common law of crimes;
  • Resistance offered to the enforcement of a federal statute may be suppressed by federal authority;
  • Attacks on the property of the federal government may be repelled, and disturbances thence arising may be quelled by federal authority;
  • The judgments pronounced in civil causes by federal courts are executed by the officers of these courts;
  • All other offences and disorders whatsoever are left to be dealt with by the duly constituted authorities of the state, who are, however, entitled in one case to summon the power of the Union to their aid.

This case is that of the breaking out in a state of serious disturbances. The president is bound on the application of the state legislature or executiveEdition: current; Page: [292] to quell such disturbances by the armed forces of the Union, or by directing the militia of another state to enter. Thus in 1794 Washington suppressed the so-called Whisky Insurrection in Pennsylvania by the militia of Pennsylvania, New Jersey, Virginia, and Maryland.14 President Grant was obliged to use military force during the troubles which disturbed several of the Southern states after the Civil War; as was President Hayes, during the tumults in Pennsylvania caused by the great railway strikes of 1877. There have, however, been cases, such as the Dorr rebellion in Rhode Island in 1842,15 in which a state has itself suppressed an insurrection against its legitimate government. It is the duty of a state to do so if it can, and to seek federal aid only in extreme cases, when resistance is formidable. The most remarkable recent instance of federal interposition occurred in 1894 when, during a railway strike in Illinois, mobs had stopped the passage of trains carrying the U.S. mails. President Cleveland, on the ground that federal property must be protected and the constitutional duty of carrying the mails discharged, sent federal troops to Chicago, though not asked to do so by the governor of Illinois, and secured the passage of the mail trains. His action was generally approved both by the legal profession and by the nation.

So far we have been considering the relations of the national government to the states as political communities. Let us now see what are its relations to the individual citizens of these states. They are citizens of the Union as well as of the states, and owe allegiance to both powers. Each power has a right to command their obedience. To which then, in case of conflict, is obedience due?

The right of the state to obedience is wider in the area of matters which it covers. Prima facie, every state law, every order of a competent state authority, binds the citizen, whereas the national government has but a limited power: it can legislate or command only for certain purposes or on certain subjects. But within the limits of its power, its authority is higher than that of the state, and must be obeyed even at the risk of disobeying the state. An instance in which a state official suffered for obeying his state where its directions clashed with a provision of the federal Constitution may set the point in a clear light. A statute of California had committed to theEdition: current; Page: [293] city and county authority of San Francisco the power of making regulations for the management of gaols. This authority had in 1876 passed an ordinance directing that every male imprisoned in the county gaol should “immediately on his arrival have his hair clipped to a uniform length of one inch from the scalp.” The sheriff having, under this ordinance, cut off the queue of a Chinese prisoner, Ho Ah Kow, was sued for damages by the prisoner, and the court, holding that the ordinance had been passed with a special view to the injury of the Chinese, who consider the preservation of their queue a matter of honour, and that it operated unequally and oppressively upon them, in contravention of the Fourteenth Amendment to the Constitution of the United States, declared the ordinance invalid, and gave judgment against the sheriff.16 Similar subsequent attempts against the Chinese, made under cover of the Constitution of California of 1879 and divers statutes passed thereunder, have been defeated by the courts.

The safe rule for the private citizen may be thus expressed: “Ascertain whether the federal law is constitutional (i.e., such as Congress has power to pass). If it is, conform your conduct to it at all hazards. If it is not, disregard it, and obey the law of your state.” This may seem hard on the private citizen. How shall he settle for himself such a delicate point of law as whether Congress had power to pass a particular statute, seeing that the question may be doubtful and not have come before the courts? But in practice little inconvenience arises, for Congress and the state legislatures have learnt to keep within their respective spheres, and the questions that arise between them are seldom such as need disturb an ordinary man.

The same remarks apply to conflicts between the commands of executive officers of the national government on the one hand, and those of state officials on the other. If the national officer is acting within his constitutional powers, he is entitled to be obeyed in preference to a state official, and conversely, if the state official is within his powers, and the national officer acting in excess of those which the federal Constitution confers, the state official is to be obeyed.

The limits of judicial power are more difficult of definition. Every citizen can sue and be sued or indicted both in the courts of his state and in the federal courts, but in some classes of cases the former, in others the latter, is the proper tribunal, while in many it is left to the choice of the parties before which tribunal they will proceed. Sometimes a plaintiff who has brought his action in a state court finds when the case has gone a certainEdition: current; Page: [294] length that a point of federal law turns up which entitles either himself or the defendant to transfer it to a federal court, or to appeal to such a court should the decision have gone against the applicability of the federal law. Suits are thus constantly transferred from state courts to federal courts, but you can never reverse the process and carry a suit from a federal court to a state court. Within its proper sphere of pure state law—and of course the great bulk of the cases turn on pure state law—there is no appeal from a state court to a federal court; and though the point of law on which the case turns may be one which has arisen and been decided in the Supreme Court of the Union, a state judge, in a state case, is not bound to regard that decision. It has only a moral weight, such as might be given to the decision of an English court, and where the question is one of state law, whether common law or statute law, in which state courts have decided one way and a federal court the other way, the state judge ought to follow his own courts. So far does this go, that a federal court in administering state law, ought to reverse its own previous decision rather than depart from the view which the highest state court has taken.17 All this seems extremely complex. I can only say that it is less troublesome in practice than could have been expected, because American lawyers are accustomed to the intricacies of their system.

When a plaintiff has the choice of proceeding in a state court or in a federal court, he is sometimes, especially if he has a strong case, inclined to select the latter, because the federal judges are more independent than those of most of the states, and less likely to be influenced by any bias. So, too, if he thinks that local prejudice may tell against him, he will prefer a federal court, because the jurors are summoned from a wider area, and because the judges are accustomed to exert a larger authority in guiding and controlling the jury. But it is usually more convenient to sue in a state court, seeing that there is such a court in every county, whereas federal courts are comparatively few; in many states there is but one.18

The federal authority, be it executive or judicial, acts upon the citizens of a state directly by means of its own officers, who are quite distinct from and independent of the state officials. Federal indirect taxes, for instance,Edition: current; Page: [295] are levied all along the coast and over the country by federal customhouse collectors and excisemen, acting under the orders of the Treasury Department at Washington. The judgments of federal courts are carried out by United States marshals, likewise dispersed over the country and supplied with a staff of assistants. This is a provision of the utmost importance, for it enables the central national government to keep its finger upon the people everywhere, and make its laws and the commands of its duly constituted authorities respected whether the state within whose territory it acts be heartily loyal or not, and whether the law which is being enforced be popular or obnoxious. The machinery of the national government ramifies over the whole Union as the nerves do over the human body, placing every point in direct connection with the central executive. The same is, of course, true of the army; but the army is so small and stationed in but few spots, mostly in the Far West where Indian raids used to be feared, and where there are federal reservations to protect, it scarcely comes into a view of the ordinary working of the system.

What happens if the authority of the national government is opposed, if, for instance, an execution levied in pursuance of a judgment of a federal court is resisted, or federal excisemen are impeded in the seizure of an illicit distillery?

Should the United States marshal or other federal officers be unable to overcome the physical force opposed to him, he may summon all good citizens to assist him, just as the sheriff may summon the posse comitatus. If this appeal proves insufficient, he must call upon the president, who may either order national troops to his aid or may require the militia of the state in which resistance is offered to overcome that resistance. Inferior federal officers are not entitled to make requisitions for state force. The common law principle that all citizens are bound to assist the ministers of the law holds in America as in England, but it is as true in the one country as in the other, that what is everybody’s business is nobody’s business. Practically, the federal authorities are not resisted in the more orderly states and more civilized districts. In such regions, however, as the mountains of Tennessee, Eastern Kentucky, and North Carolina the inland revenue officials find it very hard to enforce the excise laws, because the country is wild, concealment is easy among the woods and rocks, and the population sides with the smugglers. And in some of the Western states an injunction granted by a court, whether a federal or a state court, is occasionally disregarded.19Edition: current; Page: [296] Things were, of course, much worse before the War of Secession had established the authority of the central government on an immovable basis. Federal law did not prove an unquestioned protection either to persons who became in some districts unpopular from preaching abolitionism, or to those Southern slave-catchers, who endeavoured, under the Fugitive Slave laws, to recapture in the Northern states slaves who had escaped from their masters.20 Passion ran high, and great as is the respect for law, passion in America, as everywhere else in the world, will have its way.

If the duly constituted authorities of a state resist the laws and orders of the national government, a more difficult question arises. This has several times happened.

In November 1798 the legislature of Kentucky adopted resolutions declaring that the Constitution was not a submission of the states to a general government, but a compact whereby they formed such a government for special purposes and delegated to it certain definite powers; that when the general government assumed undelegated powers, its acts were unauthoritative and void; and that it had not been made the exclusive or final judge of the extent of the powers delegated to it. Five weeks later the Virginia legislature passed similar but more guarded resolutions, omitting, inter alia, the last of the above-mentioned deliverances of Kentucky. Both states went on to declare that the Sedition and Alien Acts recently passed by Congress were unconstitutional, and asked the other states to join in this pronouncement and to cooperate in securing the repeal of the statutes.21 Seven states answered, all in an adverse sense.

In 1808 the legislatures of some of the New England states passed resolutions condemning the embargo which the national government had laid upon shipping by an act of that year. The state judges, emboldened by these resolutions, took an attitude consistently hostile to the embargo,Edition: current; Page: [297] holding it to be unconstitutional; popular resistance broke out in some of the coast towns; and the federal courts in New England seldom succeeded in finding juries which would convict even for the most flagrant violation of its provisions. At the outbreak of the war of 1812 the governors of Massachusetts and Connecticut refused to allow the state militia to leave their state in pursuance to a requisition made by the president under the authority of an act of Congress, alleging the requisition to be unconstitutional; and in October 1814 the legislatures of these two states and of Rhode Island, states in which the New England feeling against the war had risen high, sent delegates to a convention at Hartford, which, after three weeks of secret session, issued a report declaring that “it is as much the duty of the State authorities to watch over the rights reserved as of the United States to exercise the powers delegated,” laying down doctrines substantially similar to those of the Kentucky resolutions, and advising certain amendments to the federal Constitution, with a menace as to further action in case these should be rejected. Massachusetts and Connecticut adopted the report; but before their commissioners reached Washington, peace with Great Britain had been concluded. In 1828–30 Georgia refused to obey an act of Congress regarding the Cherokee Indians, and to respect the treaties which the United States had made with that tribe and the Creeks. The Georgian legislature passed and enforced acts in contempt of federal authority, and disregarded the orders of the Supreme Court, President Jackson, who had an old frontiersman’s hatred to the Indians, declining to interfere.

Finally, in 1832, South Carolina, first in a state convention and then by her legislature, amplified while professing to repeat the claim of the Kentucky resolutions of 1798, declared the tariff imposed by Congress to be null and void as regarded herself, and proceeded to prepare for secession and war. In none of these cases was the dispute fought out either in the courts or in the field;22 and the questions as to the right of a state to resist federal authority, and as to the means whereby she could be coerced, were left over for future settlement. Settled they finally were by the Civil War of 1861–65, since which time the following doctrines may be deemed established:

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  • No state has a right to declare an act of the federal government invalid.23
  • No state has a right to secede from the Union.
  • The only authority competent to decide finally on the constitutionality of an act of Congress or of the national executive is the federal judiciary.24
  • Any act of a state legislature or state executive conflicting with the Constitution, or with an act of the national government done under the Constitution, is really an act not of the state government, which cannot legally act against the Constitution, but of persons falsely assuming to act as such government, and is therefore ipso jure void.25 Those who disobey federal authority on the ground of the commands of a state authority are therefore insurgents against the Union who must be coerced by its power. The coercion of such insurgents is directed not against the state but against them as individual though combined wrongdoers. A state cannot secede and cannot rebel. Similarly, it cannot be coerced.

This view of the matter, which seems on the whole to be that taken by the Supreme Court in the cases that arose after the Civil War, disposes, as has been well observed by Judge Hare,26 of the difficulty which President Buchanan felt (see his message of December 3, 1860) as to the coercion of a state by the Union. He argued that because the Constitution did not provide for such coercion, a proposal in the Convention of 1787 to authorize it having been ultimately dropped, it was legally impossible. The best answer to this contention is that such a provision would have been superfluous, because a state cannot legally act against the Constitution. All that is needed is the power, unquestionably contained in the Constitution (art. III, § 3), to subdue and punish individuals guilty of treason against the Union.27

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Except in the cases hereinbefore specified, the national government has no right whatever of interfering either with a state as a commonwealth or with the individual citizens thereof, and may be lawfully resisted should it attempt to do so.

“What then?” the European reader may ask. “Is the national government without the power and the duty of correcting the social and political evils which it may find to exist in a particular state, and which a vast majority of the nation may condemn? Suppose widespread brigandage to exist in one of the states, endangering life and property. Suppose contracts to be habitually broken, and no redress to be obtainable in the state courts. Suppose the police to be in league with the assassins. Suppose the most mischievous laws to be enacted, laws, for instance, which recognize polygamy, leave homicide unpunished, drive away capital by imposing upon it an intolerable load of taxation. Is the nation obliged to stand by with folded arms while it sees a meritorious minority oppressed, the prosperity of the state ruined, a pernicious example set to other states? Is it to be debarred from using its supreme authority to rectify these mischiefs?”

The answer is, yes. Unless the legislation or administration of such a state transgresses some provision of the federal Constitution (such as that forbidding ex post facto laws, or laws impairing the obligation of a contract), the national government not only ought not to interfere but cannot interfere. The state must go its own way, with whatever injury to private rights and common interests its folly or perversity may cause.

Such a case is not imaginary. In the slave states before the war, although the Negroes were not, as a rule, harshly treated, many shocking laws were passed, and society was going from bad to worse. Even now it sometimes happens that in one or two Western states the roads and even the railways are infested by robbers, there are parts of the country where justice is uncertain and may be unattainable when popular sentiment does not support the law, so that homicide often goes unpunished by the courts, though sometimes punished by Judge Lynch. There are districts where armed bands occasionally appear, perpetrating nocturnal outrages which no state police has been provided to check. So, too, in a few of these states statutes opposed to sound principles of legislation have been passed, and have brought manifold evils in their train. But the federal government looks on unperturbed, with no remorse for neglected duty.

The obvious explanation of this phenomenon is that the large measure of independence left to the states under the federal system makes it necessary to tolerate their misdoings in some directions. As a distinguished authority28Edition: current; Page: [300] observes to me, “The Federal Constitution provided for the protection of contracts, and against those oppressions most likely to result from popular passion and demoralization; and if it had been proposed to go further and give to the Federal authority a power to intervene in still more extreme cases, the answer would probably have been that such cases were far less likely to arise than was the Federal power to intervene improperly under the pressure of party passion or policy, if its intervention were permitted. To have authorized such intervention would have been to run counter to the whole spirit of the Constitution, which kept steadily in view as the wisest policy local government for local affairs, general government for general affairs only. Evils would unquestionably arise. But the Philadelphia Convention believed that they would be kept at a minimum and most quickly cured by strict adherence to this policy. The scope for Federal interference was considerably enlarged after the Civil War, but the general division of authority between the States and the nation was not disturbed.”

So far from lamenting as a fault, though an unavoidable fault, of their federal system, the state independence I have described, the Americans are inclined to praise it as a merit. They argue, not merely that the best way on the whole is to leave a state to itself, but that this is the only way in which a permanent cure of its diseases will be effected. They are consistent not only in their federal principles but in their democratic principles. “As laissez aller,” they say, “is the necessary course in a federal government, so it is the right course in all free governments. Law will never be strong or respected unless it has the sentiment of the people behind it. If the people of a state make bad laws, they will suffer for it. They will be the first to suffer. Let them suffer. Suffering, and nothing else, will implant that sense of responsibility which is the first step to reform. Therefore let them stew in their own juice: let them make their bed and lie upon it. If they drive capital away, there will be less work for the artisans; if they do not enforce contracts, trade will decline, and the evil will work out its remedy sooner or later. Perhaps it will be later rather than sooner; if so, the experience will be all the more conclusive. Is it said that the minority of wise and peaceable citizens may suffer? Let them exert themselves to bring their fellows round to a better mind. Reason and experience will be on their side. We cannot be democrats by halves; and where self-government is given, the majority of the community must rule. Its rule will in the end be better than that of any external power.” No doctrine more completely pervades the American people, the instructed as well as the uninstructed. Philosophers will tell you that it is the method by which Nature governs, in whoseEdition: current; Page: [301] economy error is followed by pain and suffering, whose laws carry their own sanction with them. Divines will tell you that it is the method by which God governs: God is a righteous Judge and God is provoked every day, yet He makes His sun to rise on the evil and the good, and sends His rain upon the just and the unjust. He does not directly intervene to punish faults, but leaves sin to bring its own appointed penalty. Statesmen will point to the troubles which followed the attempt to govern the reconquered seceding states, first, by military force and then by keeping a great part of their population disfranchised, and will declare that such evils as still exist in the South are far less grave than those which the denial of ordinary self-government involved. “So,” they pursue, “Texas and California will in time unlearn their bad habits and come out right if we leave them alone: Federal interference, even had we the machinery needed for prosecuting it, would check the natural process by which the better elements in these raw communities are purging away the maladies of youth, and reaching the settled health of manhood.”

A European may say that there is a dangerous side to this application of democratic faith in local majorities and in laissez aller. Doubtless there is; yet those who have learnt to know the Americans will answer that no nation so well understands its own business.

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chapter 29

Criticism of the Federal System

All Americans have long been agreed that the only possible form of government for their country is a federal one. All have perceived that a centralized system would be inexpedient, if not unworkable, over so large an area, and have still more strongly felt that to cut up the continent into absolutely independent states would not only involve risks of war but injure commerce and retard in a thousand ways the material development of every part of the country. But regarding the nature of the federal tie that ought to exist there have been keen and frequent controversies, dormant at present, but which might break out afresh should there arise a new question of social or economic change capable of bringing the powers of Congress into collision with the wishes of any state or group of states. The general suitability to the country of a federal system is therefore accepted, and need not be discussed. I pass to consider the strong and weak points of that which exists.

The faults generally charged on federations as compared with unified governments are the following:

  • I.Weakness in the conduct of foreign affairs
  • II.Weakness in home government, that is to say, deficient authority over the component states and the individual citizens
  • III.Liability to dissolution by the secession or rebellion of states
  • IV.Liability to division into groups and factions by the formation of separate combinations of the component states
  • V.Absence of the power of legislating on certain subjects wherein legislation uniform over the whole Union is needed
  • VI.Want of uniformity among the states in legislation and administration
  • VII.Trouble, expense, and delay due to the complexity of a double system of legislation and administration
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The first four of these are all due to the same cause, viz., the existence within one government, which ought to be able to speak and act in the name and with the united strength of the nation, of distinct centres of force, organized political bodies into which part of the nation’s strength has flowed, and whose resistance to the will of the majority of the whole nation is likely to be more effective than could be the resistance of individuals, because such bodies have each of them a government, a revenue, a militia, a local patriotism to unite them, whereas individual recalcitrants, however numerous, would be unorganized, and less likely to find a legal standing ground for opposition. The gravity of the first two of the four alleged faults has been exaggerated by most writers, who have assumed, on insufficient grounds, that federal governments are necessarily weak. Let us, however, see how far America has experienced such troubles from these features of a federal system.

I. In its early years, the Union was not successful in the management of its foreign relations. Few popular governments are, because a successful foreign policy needs in a world such as ours conditions which popular governments seldom enjoy. In the days of Adams, Jefferson, and Madison, the Union put up with a great deal of ill-treatment from France as well as from England. It drifted rather than steered into the war of 1812. The conduct of that war was hampered by the opposition of the New England states. The Mexican war of 1846 was due to the slaveholders; but the combination among the Southern leaders which entrapped the nation into that conflict might have been equally successful in a unified country; the blame need not be laid at the door of federalism. The principle of abstention from Old World complications has been so heartily and consistently adhered to that the capacities of the federal system for the conduct of foreign affairs have been seldom seriously tried, so far as concerned European powers; and the likelihood of any danger from abroad is so slender that it may be practically ignored. But when a question of external policy arises which interests only one part of the Union (such, for instance, as the immigration of Asiatic labourers), the existence of states feeling themselves specially affected may have a strong and probably an unfortunate influence. Only in this way can the American government be deemed likely to suffer in its foreign relations from its federal character.

II. For the purposes of domestic government the federal authority is now, in ordinary times, sufficiently strong. However, as was remarked in the last chapter, there have been occasions when the resistance of even a single state disclosed its weakness. Had a man less vigorous than Jackson occupiedEdition: current; Page: [304] the presidential chair in 1832, South Carolina would probably have prevailed against the Union. In the Kansas troubles of 1855–56 the national executive played a sorry part; and even in the resolute hands of President Grant it was hampered in the reestablishment of order in the reconquered Southern states by the rights which the federal Constitution secured to those states. The only general conclusion on this point which can be drawn from history is that while the central government is likely to find less and less difficulty in enforcing its will against a state or disobedient subjects, because the prestige of its success in the Civil War has strengthened it, and the facilities of communication make the raising and moving of troops more easy, nevertheless recalcitrant states, or groups of states, still enjoy certain advantages for resistance, advantages due partly to their legal position, partly to their local sentiment, which rebels might not have in unified countries like England, France, or Italy.

III. Everybody knows that it was the federal system and the doctrine of state sovereignty grounded thereon, and not excluded, though not recognized, by the Constitution, which led to the secession of 1861, and which gave European powers a plausible ground for recognizing the insurgent minority as belligerents. Nothing seems now less probable than another secession, not merely because the supposed legal basis for it has been abandoned, and because the advantages of continued union are more obvious than ever before, but because the precedent of the victory won by the North will discourage like attempts in the future.1 This is so strongly felt that it has not even been thought worth while to add to the Constitution an amendment negativing the right to secede. The doctrine of the legal indestructibility of the Union is now well established. To establish it, however, cost thousands of millions of dollars and the lives of a million of men.

IV. The combination of states into groups was a familiar feature of politics before the war. South Carolina and the Gulf states constituted one such, and the most energetic, group; the New England states frequently acted as another, especially during the war of 1812. At present, though there are several sets of states whose common interests lead their representatives in Congress to act together, it is no longer the fashion for states to combine in an official way through their state organizations, and their doing so would excite reprehension. It is easier, safer, and more effective to act through the great national parties. Any considerable state interest (such as that of theEdition: current; Page: [305] silver miners or cattlemen, or protectionist manufacturers) can generally compel a party to conciliate it by threatening to forsake the party if neglected. Political action runs less in state channels than it did formerly, and the only really threatening form which the combined action of states could take, that of using for a common disloyal purpose state revenues and the machinery of state governments, has become, since the failure of secession, most improbable.

It has been a singular piece of good fortune that lines of religious difference have never happened to coincide with state lines; nor has any particular creed ever dominated any group of states. The religious forces which in some countries and times have given rise to grave civil discord, have in America never weakened the federal fabric.

V. Towards the close of the nineteenth century two significant phenomena began to be seen. One was the increasing power of incorporated companies and combinations of capitalists. It began to be felt that there ought to be a power of regulating corporations, and that such regulation cannot be effective unless it proceeds from federal authority and applies all over the Union. At present the power of Congress is deemed to be limited to the operations of interstate commerce, so that the rest of the work done by corporations, with the law governing their creation and management, belongs to the several states. The other phenomenon was the growing demand for various social reforms, some of which (such as the regulation of child labour) are deemed to be neglected by the more backward states, while others cannot be fully carried out except by laws of general application. The difficulty of meeting this demand under existing conditions has led to many complaints, and while some call for the amendment of the Constitution, others have gone so far as to suggest that the courts ought now to construe the Constitution as conferring powers it has not hitherto been deemed to include.

VI. The want of uniformity in private law and methods of administration is an evil which different minds will judge by different standards. Some may think it a positive benefit to secure a variety which is interesting in itself and makes possible the trying of experiments from which the whole country may profit. Is variety within a country more a gain or a loss? Diversity in coinage, in weights and measures, in the rules regarding bills and cheques and banking and commerce generally, is obviously inconvenient. Diversity in dress, in food, in the habits and usages of society, is almost as obviously a thing to rejoice over, because it diminishes the terrible monotony of life. Diversity in religious opinion and worship excited horror in the Middle Ages, but now passes unnoticed, except where governments areEdition: current; Page: [306] intolerant. In the United States the possible diversity of laws is immense. Subject to a few prohibitions contained in the Constitution, each state can play whatever tricks it pleases with the law of family relations, of inheritance, of contracts, of torts, of crimes. But the actual diversity is not great, for all the states, save Louisiana, have taken the English common and statute law of 1776 as their point of departure, and have adhered to its main principles. A more complete uniformity as regards marriage and divorce is desirable, for it is particularly awkward not to know whether you are married or not, nor whether you have been or can be divorced or not; and several states have tried bold experiments in divorce laws.2 But, on the whole, far less inconvenience than could have been expected seems to be caused by the varying laws of different states, partly because commercial law is the department in which the diversity is smallest, partly because American practitioners and judges have become expert in applying the rules for determining which law, where those of different states are in question, ought to be deemed to govern a given case.3 However, some states have taken steps to reduce this diversity by apointing commissions, instructed to meet and confer as to the best means of securing uniform state legislation on some important subjects, and progress in this direction has been made.

VII. He who is conducted over an ironclad warship, and sees the infinite intricacy of the machinery and mechanical appliances which it contains and by which its engines, its guns, its turrets, its torpedoes, its apparatus for anchoring and making sail, are worked, is apt to think that it must break down in the rough practice of war. He is told, however, that the more is done by machinery, the more safely and easily does everything go on, because the machinery can be relied on to work accurately, and the performance by it of the heavier work leaves the crew free to attend to theEdition: current; Page: [307] general management of the vessel and her armament. So in studying the elaborate devices with which the federal system of the United States has been equipped, one fancies that with so many authorities and bodies whose functions are intricately interlaced, and some of which may collide with others, there must be a great risk of breakdowns and deadlocks, not to speak of an expense much exceeding that which is incident to a simple centralized government. In America, however, smoothness of working is secured by elaboration of device; and complex as the mechanism of the government may appear, the citizens have grown so familiar with it that its play is smooth and easy, attended with less trouble, and certainly with less suspicion on the part of the people, than would belong to a scheme which vested all powers in one administration and one legislature. The expense is admitted, but is considered no grave defect when compared with the waste which arises from untrustworthy officials and legislators whose depredations would, it is thought, be greater were their sphere of action wider, and the checks upon them fewer. He who examines a system of government from without is generally disposed to overrate the difficulties in working which its complexity causes. Few things, for instance, are harder than to explain to a person who has not been a student in one of the two ancient English universities the nature of their highly complex constitution and the relation of the colleges to the university. If he does apprehend it he pronounces it too intricate for the purposes it has to serve. To those who have grown up under it, nothing is simpler and more obvious.

There is a blemish characteristic of the American federation which Americans seldom notice because it seems to them unavoidable. This is the practice in selecting candidates for federal office of regarding not so much the merits of the candidate as the effect which his nomination will have upon the vote of the state to which he belongs. Second-rate men are run for first-rate posts, not because the party which runs them overrates their capacity, but because it expects to carry their state either by their local influence or through the pleasure which the state feels in the prospect of seeing one of its own citizens in high office. This of course works in favour of the politicians who come from a large state. No doubt the leading men of a large state are prima facie more likely to be men of high ability than those of a small state, because the field of choice is wider and the competition keener. One is reminded of the story of the leading citizen in the isle of Seriphus who observed to Themistocles, “You would not have been famous had you been born in Seriphus,” to which Themistocles replied, “Neither would you had you been born in Athens.” The two great states of VirginiaEdition: current; Page: [308] and Massachusetts reared one half of the men who won distinction in the first fifty years of the history of the Republic. Nevertheless it often happens that a small state produces a first-rate man, whom the country ought to have in its highest places, but who is passed over because the federal system gives great weight to the voice of a state, and because state sentiment is so strong that the voters of a state which has a large and perhaps a doubtful vote to cast in national elections, prefer an inferior man in whom they are directly interested to a superior one who is a stranger. It is also unfortunate that the president’s liberty of choice in forming his cabinet should be restricted by the doctrine that he must not have in it, if possible, two persons from the same state.

I have left to the last the gravest reproach which Europeans have been wont to bring against federalism in America. They attributed to it the origin, or at least the virulence, of the great struggle over slavery which tried the Constitution so severely. That struggle created parties which, though they had adherents everywhere, no doubt tended more and more to become identified with states, controlling the state organizations and bending the state governments to their service. It gave tremendous importance to legal questions arising out of the differences between the law of the slave states and the free states, questions which the Constitution had either evaded or not foreseen. It shook the credit of the Supreme Court by making the judicial decision of those questions appear due to partiality to the slave states. It disposed the extreme men on both sides to hate the federal Union which bound them in the same body with their antagonists. It laid hold of the doctrine of states’ rights and state sovereignty as entitling a commonwealth which deemed itself aggrieved to shake off allegiance to the national government. Thus at last it brought about secession and the great civil war. Even when the war was over, the dregs of the poison continued to haunt and vex the system, and bred fresh disorders in it. The constitutional duty of reestablishing the state governments of the conquered states on the one hand, and on the other hand the practical danger of doing so while their people remained disaffected, produced the military governments, the “carpet bag” governments, the Ku Klux Klan outrages, the gift of suffrage to a Negro population unfit for such a privilege, yet apparently capable of being protected in no other way. All these mischiefs, it has often been argued, are the results of the federal structure of the government, which carried in its bosom the seeds of its own destruction, seeds sure to ripen so soon as there arose a question that stirred men deeply.

It may be answered not merely that the national government has survivedEdition: current; Page: [309] this struggle and emerged from it stronger than before, but also that federalism did not produce the struggle, but only gave to it the particular form of a series of legal controversies over the federal pact followed by a war of states against the Union. Where such vast economic interests were involved, and such hot passions roused, there must anyhow have been a conflict, and it may well be that a conflict raging within the vitals of a centralized government would have proved no less terrible and would have left as many noxious sequelae behind.

In blaming either the conduct of a person or the plan and scheme of a government for evils which have actually followed, one is apt to overlook those other evils, perhaps as great, which might have flowed from different conduct or some other plan. All that can fairly be concluded from the history of the American Union is that federalism is obliged by the law of its nature to leave in the hands of states powers whose exercise may give to political controversy a peculiarly dangerous form, may impede the assertion of national authority, may even, when long-continued exasperation has suspended or destroyed the feeling of a common patriotism, threaten national unity itself. Against this danger is to be set the fact that the looser structure of a federal government and the scope it gives for diversities of legislation in different parts of a country may avert sources of discord, or prevent local discord from growing into a contest of national magnitude.

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chapter 30

Merits of the Federal System

I do not propose to discuss in this chapter the advantages of federalism in general, for to do this we should have to wander off to other times and countries, to talk of Achaia and the Hanseatic League and the Swiss Confederation. I shall comment on those merits only which the experience of the American Union illustrates.

There are two distinct lines of argument by which their federal system was recommended to the framers of the Constitution, and upon which it is still held forth for imitation to other countries. These lines have been so generally confounded that it is well to present them in a precise form.

The first set of arguments point to federalism proper, and are the following:

1. That federalism furnishes the means of uniting commonwealths into one nation under one national government without extinguishing their separate administrations, legislatures, and local patriotisms. As the Americans of 1787 would probably have preferred complete state independence to the fusion of their states into a unified government, federalism was the only resource. So when the new Germanic Empire, which is really a federation, was established in 1871, Bavaria and Würtemberg could not have been brought under a national government save by a federal scheme. Similar suggestions, as everyone knows, have been made for resettling the relations of Ireland to Great Britain, and of the self-governing British colonies to the United Kingdom. There are causes and conditions which dispose nations living under loosely compacted governments, to form a closer union in a federal form. There are other causes and conditions which dispose the subjects of one government, or sections of these subjects, to desire to make their governmental union less close by substituting a federal for a unitary system. In both sets of cases, the centripetal or centrifugal forces spring from the local position, the history, the sentiments, the economic needs ofEdition: current; Page: [311] those among whom the problem arises; and that which is good for one people or political body is not necessarily good for another. Federalism is an equally legitimate resource where it is adopted for the sake of tightening or for the sake of loosening a preexisting bond.1

2. That federalism supplies the best means of developing a new and vast country. It permits an expansion whose extent, and whose rate and manner of progress, cannot be foreseen to proceed with more variety of methods, more adaptation of laws and administration to the circumstances of each part of the territory, and altogether in a more truly natural and spontaneous way, than can be expected under a centralized government, which is disposed to apply its settled system through all its dominions. Thus the special needs of a new region are met by the inhabitants in the way they find best: its laws can be adapted to the economic conditions which from time to time present themselves; its special evils are cured by special remedies, perhaps more drastic than an old country demands, perhaps more lax than an old country would tolerate; while at the same time the spirit of self-reliance among those who build up these new communities is stimulated and respected.

3. That federalism prevents the rise of a despotic central government, absorbing other powers, and menacing the private liberties of the citizen. This may now seem to have been an idle fear, so far as America was concerned. It was, however, a very real fear among the ancestors of the present Americans, and nearly led to the rejection even of so undespotic an instrument as the federal Constitution of 1789. Congress (or the president, as the case may be) is still sometimes described as a tyrant by the party which does not control it, simply because it is a central government; and the states are represented as bulwarks against its encroachments.

The second set of arguments relate to and recommend not so much federalism as local self-government. I state them briefly because they are familiar.

4. Self-government stimulates the interest of people in the affairs of their neighbourhood, sustains local political life, educates the citizen in his daily round of civic duty, teaches him that perpetual vigilance and the sacrifice of his own time and labour are the price that must be paid for individual liberty and collective prosperity.

5. Self-government secures the good administration of local affairs byEdition: current; Page: [312] giving the inhabitants of each locality due means of overseeing the conduct of their business.

That these two sets of grounds are distinct appears from the fact that the sort of local interest which local self-government evokes is quite a different thing from the interest men feel in the affairs of a large body like an American state. So, too, the control over its own affairs of a township, or even a small county, where everybody can know what is going on, is quite different from the control exercisable over the affairs of a commonwealth with a million of people. Local self-government may exist in a unified country like England, and may be wanting in a federal country like Germany. And in America itself, while some states, like those of New England, possessed an admirably complete system of local government, others, such as Virginia, the old champion of state sovereignty, were imperfectly provided with it. Nevertheless, through both sets of arguments there runs the general principle, applicable in every part and branch of government, that, where other things are equal, the more power is given to the units which compose the nation, be they large or small, and the less to the nation as a whole and to its central authority, so much the fuller will be the liberties and so much greater the energy of the individuals who compose the people. This principle, though it had not been then formulated in the way men formulate it now, was heartily embraced by the Americans. Perhaps it was because they agreed in taking it as an axiom that they seldom referred to it in the subsequent controversies regarding state rights. These controversies proceeded on the basis of the Constitution as a law rather than on considerations of general political theory. A European reader of the history of the first seventy years of the United States is surprised how little is said, through the interminable discussions regarding the relation of the federal government to the states, on the respective advantages of centralization or localization of powers as a matter of historical experience and general expediency.

Three further benefits to be expected from a federal system may be mentioned, benefits which seem to have been unnoticed or little regarded by those who established it in America.

6. Federalism enables a people to try experiments in legislation and administration which could not be safely tried in a large centralized country. A comparatively small commonwealth like an American state easily makes and unmakes its laws; mistakes are not serious, for they are soon corrected; other states profit by the experience of a law or a method which has worked well or ill in the state that has tried it.

7. Federalism, if it diminishes the collective force of a nation, diminishesEdition: current; Page: [313] also the risks to which its size and the diversities of its parts expose it. A nation so divided is like a ship built with watertight compartments. When a leak is sprung in one compartment, the cargo stowed there may be damaged, but the other compartments remain dry and keep the ship afloat. So if social discord or an economic crisis has produced disorders or foolish legislation in one member of the federal body, the mischief may stop at the state frontier instead of spreading through and tainting the nation at large.

8. Federalism, by creating many local legislatures with wide powers, relieves the national legislature of a part of that large mass of functions which might otherwise prove too heavy for it. Thus business is more promptly despatched, and the great central council of the nation has time to deliberate on those questions which most nearly touch the whole country.

All of these arguments recommending federalism have proved valid in American experience.

To create a nation while preserving the states was the main reason for the grant of powers which the national government received; an all-sufficient reason, and one which holds good today. The several states have changed greatly since 1789, but they are still commonwealths whose wide authority and jurisdiction practical men are agreed in desiring to maintain.

Not much was said in the Convention of 1787 regarding the best methods of extending government over the unsettled territories lying beyond the Allegheny mountains.2 It was, however, assumed that they would develop as the older colonies had developed, and in point of fact each district, when it became sufficiently populous, was formed into a self-governing state, the less populous divisions still remaining in the status of semi-self-governing Territories. Although many blunders have been committed in the process of development, especially in the reckless contraction of debt and the wasteful disposal of the public lands, greater evils might have resulted had the creation of local institutions and the control of new communities been left to the central government.3 Congress would have been not less improvidentEdition: current; Page: [314] than the state governments, for it would have been even less closely watched. The opportunities for jobbery would have been irresistible, the growth of order and civilization probably slower. It deserves to be noticed that, in granting self-government to all those of her colonies whose population is of English race, England has practically adopted the same plan as the United States have done with their Western territory. The results have been generally satisfactory, although England, like America, has found that her colonists are disposed to treat the aboriginal inhabitants, whose lands they covet and whose persons they hate, with a harshness and injustice which the mother country would gladly check.

The arguments which set forth the advantages of local self-government were far more applicable to the states of 1787 than to those of 1907. Virginia, then the largest state, had only half a million free inhabitants, less than the present population of Baltimore. Massachusetts had 450,000, Pennsylvania 400,000, New York 300,000; while Georgia, Rhode Island, and Delaware had (even counting slaves) less than 200,000 between them.4 These were communities to which the expression “local self-government” might be applied, for, although the population was scattered, the numbers were small enough for the citizens to have a personal knowledge of their leading men, and a personal interest (especially as a large proportion were landowners) in the economy and prudence with which common affairs were managed. Now, however, when of the nearly fifty states twenty-nine have more than a million inhabitants, and six have more than three millions, the newer states, being, moreover, larger in area than most of the older ones, the stake of each citizen is relatively smaller, and generally too small to sustain his activity in politics, and the party chiefs of the state are known to him only by the newspapers or by their occasional visits on a stumping tour.5

All that can be claimed for the federal system under this head of the argument is that it provides the machinery for a better control of the taxes raised and expended in a given region of the country, and a better oversightEdition: current; Page: [315] of the public works undertaken there than would be possible were everything left to the central government.6 As regards the educative effect of numerous and frequent elections, a European observer is apt to think that elections in America are too many and come too frequently. Overtaxing the attention of the citizen and frittering away his interest, they leave him at the mercy of knots of selfish adventurers.

The utility of the state system in localizing disorders or discontents, and the opportunities it affords for trying easily and safely experiments which ought to be tried in legislation and administration, constitute benefits to be set off against the risk, referred to in the last preceding chapters, that evils may continue in a district, may work injustice to a minority and invite imitation by other states, which the wholesome stringency of the central government might have suppressed.

A more unqualified approval may be given to the division of legislative powers. The existence of the state legislatures relieves Congress of a burden too heavy for its shoulders; for although it has far less foreign policy to discuss than the parliaments of England, France, or Italy, and although the separation of the executive from the legislative department gives it less responsibility for the ordinary conduct of the administration than devolves on those chambers, it could not possibly, were its competence as large as theirs, deal with the multiform and increasing demands of the different parts of the Union. There is great diversity in the material conditions of different parts of the country, and at present the people, particularly in the West, are eager to have their difficulties handled, their economic and social needs satisfied, by the state and the law. It would be extremely difficult for any central legislature to pass measures suited to these dissimilar and varying conditions. How little Congress could satisfy them appears by the very imperfect success with which it cultivates the field of legislation to which it is now limited.

These merits of the federal system of government which I have enumerated are the counterpart and consequences of that limitation of the central authority whose dangers were indicated in the last chapter. They are, if one may reverse the French phrase, the qualities of federalism’s defects. The problem which all federalized nations have to solve is how to secure an efficient central government and preserve national unity, while allowing free scope for the diversities, and free play to the authorities, of the members of theEdition: current; Page: [316] federation. It is, to adopt that favourite astronomical metaphor which no American panegyrist of the Constitution omits, to keep the centrifugal and centripetal forces in equilibrium, so that neither the planet states shall fly off into space, nor the sun of the central government draw them into its consuming fires. The characteristic merit of the American Constitution lies in the method by which it has solved this problem. It has given the national government a direct authority over all citizens, irrespective of the state governments, and has therefore been able safely to leave wide powers in the hands of those governments. And by placing the Constitution above both the national and the state governments, it has referred the arbitrament of disputes between them to an independent body, charged with the interpretation of the Constitution, a body which is to be deemed not so much a third authority in the government as the living voice of the Constitution, the unfolder of the mind of the people whose will stands expressed in that supreme instrument.

The application of these two principles, unknown to or at any rate little used by, any previous federation,7 has contributed more than anything else to the stability of the American system, and to the reverence which its citizens feel for it, a reverence which is the best security for its permanence. Yet even these devices would not have succeeded but for the presence of a mass of moral and material influences stronger than any political devices, which have maintained the equilibrium of centrifugal and centripetal forces. On the one hand there has been the love of local independence and self-government; on the other, the sense of community in blood, in language, in habits and ideas, a common pride in the national history and the national flag.

Quid leges sine moribus? The student of institutions, as well as the lawyer, is apt to overrate the effect of mechanical contrivances in politics. I admit that in America they have had one excellent result; they have formed a legal habit in the mind of the nation. But the true value of a political contrivance resides not in its ingenuity but in its adaptation to the temper and circumstances of the people for whom it is designed, in its power of using, fostering, and giving a legal form to those forces of sentiment and interest which it finds in being. So it has been with the American system. Just as the passions which the question of slavery evoked strained the federal fabric, disclosing unforeseen weaknesses, so the love of the Union, theEdition: current; Page: [317] sense of the material and social benefits involved in its preservation, appeared in unexpected strength, and manned with zealous defenders the ramparts of the sovereign Constitution. It is this need of determining the suitability of the machinery for the workmen and its probable influence upon them, as well as the capacity of the workmen for using and their willingness to use the machinery, which makes it so difficult to predict the operation of a political contrivance, or, when it has succeeded in one country, to advise its imitation in another. The growing strength of the national government in the United States is largely due to sentimental forces that were weak a century ago, and to a development of internal communications which was then undreamt of. And the devices which we admire in the Constitution might prove unworkable among a people less patriotic and self-reliant, less law-loving and law-abiding, than are the English of America.

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Supplementary Note to Edition of 1910

Though I have made such corrections in the foregoing chapters as are needed to bring the statements made in them up to the present time, it is proper to note here in a concise way certain general tendencies which have affected, and may hereafter more largely affect, the working of the federal system.

The growth of population, the extension of communications and their larger use both for commerce and for the goings to and fro of the inhabitants, as well as the emergence of new ideas and new needs, have brought about many changes. Three deserve to be singled out as of special importance. (1) The importance of the things which the national government does, has tended to increase as compared with the things which the states do. (2) Uniformity of regulation over the country has become more needful. (3) In the matters which are regulated partly by the national government and partly by the states, the inconvenience arising from a division and intermingling of powers has become more evident and more serious.

(1) The army and navy are larger and more costly than they were; and excite more attention. Questions of tariff more and more affect industry and trade. There is more interest, though perhaps not yet as much as there ought to be, in the conservation of natural resources, including the development of internal waterways, and the control and distribution of water power.

(2) The evils arising from the backwardness of some states, and the boldness or levity of some others, in legislating upon such subjects as child labour, sanitation, divorce, the prevention of accidents in mining and other industries, seem more evident, not because things are any worse than they were, for they are in most respects better, but because the spirit of reform and the humanitarian sympathy which seeks to amend the ills of life have become more active. For instance it isEdition: current; Page: [318] now held regrettable that temptations should be offered to capitalists to establish factories in states where the law gives deficient protection to children or makes the requirements of health and safety less stringent. In those fields of action wherein neither Congress nor the states enjoy complete authority, the want of a power to deal with the whole of a subject makes legislation halting and imperfect.

(3) The regulation of railroads, as respects both their methods of operation and their rates, by one law and one administrative authority seems needed not only in the interest of traders and passengers but in that of the employees, and indeed of the railroad owners themselves, who are harassed by the varying (and sometimes vexatious) legislation of different states superadded to the legislation of Congress controlling interstate commerce. Whether all railroads should be subjected to federal legislation, or whether such legislation should be extended only to cover the whole working of railroads doing extrastate business or operating in more than one state, is a further question as to which opinion is divided. There has grown up strong demand for the suppression of all monopolies by general measures. There is a desire to see more control and a uniform control exerted by national law over large industrial and trading corporations. All these convergent wishes and demands represent a tendency which has not as yet found in federal law and federal administration a concrete expression proportionate to its strength. The mind of the nation is now awake to these needs and desires, but it is reluctant to depart from the existing boundaries of federal action and state action. Thus it continues to wrestle with the problem, the difficulties of which lie not merely in the solution to be attained but in the manner of attaining the solution, because there are objections to both the courses which might have to be taken, the course of amending the Constitution and the course of encouraging the federal courts to effect by interpretation alterations so large as are desired. No one desire to weaken confidence in the fundamental instrument.

Whatever changes may come, and whether they come sooner or later, it is clear that the nation feels itself more than ever before to be one for all commercial and social purposes, every part of it more interlaced with and dependent on all the other parts than at any previous epoch of its history. This feeling, due to influences which have been steadily gaining ground, cannot but have its effect upon political institutions. It does not necessarily portend any menace to the states. Everyone feels that they are necessary and must be maintained. But it presages some further extensions of federal authority.

One new fact which was expected to exalt the majesty and strengthen the power of the national government has so far made little if any difference—I mean the acquisition of transmarine possessions and particularly of the Philippine Islands, which are immediately dependent upon that government, and bring it into relation with new foreign problems. These conquests are too relatively small and too distant to occupy the thoughts of the people. The lustre of the national government has not been visibly enhanced by its control of the new possessions, and still less has its character as a constitutional government suffered from the fact that it exercises a largerEdition: current; Page: [319] sway than is permitted to it at home. It is not through the so-called “imperial position” which the government of the United States now holds, nor through the place it has assumed as a world power, but rather through the internal causes above referred to, that the forces which make for the unification of the country seem to be working. Yet in one respect the war with Spain did contribute to the strengthening of a sentiment of unity, for it obliterated the relics of sectional antagonism which had lingered on from the days of the Civil War. Soldiers from the North and soldiers from the South fought side by side in Cuba under one flag.

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the national government Growth and Development of the Constitution fpage="320" lpage="323"
chapter 31

Growth and Development of the Constitution

There is another point of view from which we have still to consider the Constitution. It is not only a fundamental law, but an unchangeable law, unchangeable, that is to say, by the national legislature, and changeable even by the people only through a slow and difficult process. How can a country whose very name suggests to us movement and progress be governed by a system and under an instrument which remains the same from year to year and from century to century?

By the “constitution” of a state or a nation we mean those of its rules or laws which determine the form of its government, and the respective rights and duties of the government towards the citizens and of the citizens towards the government. These rules, or the most important among them, may be contained in one document, such as the Swiss or Belgian Constitution, or may be scattered through a multitude of statutes and reports of judicial decisions, as is the case with regard to what men call the English Constitution. This is a distinction of practical consequence. But a still more important difference exists in the fact that in some countries the rules or laws which make up the constitution can be made and changed by the ordinary legislature just like any other laws, while in other countries such rules are placed above and out of the reach of the legislature, having been enacted and being changeable only by some superior authority. In countries of the former class the so-called constitution is nothing more than the aggregate of those laws—including of course customs and judicial decisions—which have a political character; and this description is too vague to be scientifically useful, for no three jurists would agree as to which laws ought to be deemed political. In such countries there is nothing either in the form of what are commonly called constitutional laws, or in the source from which they emanate, or in the degree of their authority, to mark them off from other laws. The Constitution of England is constantly changing, for as the legislature, in theEdition: current; Page: [321] ordinary exercise of its powers, frequently passes enactments which affect the methods of government and the political rights of the citizens, there is no certainty that what is called the Constitution will stand the same at the end of a given session of Parliament as it stood at the beginning.1 A constitution of this kind, capable at any moment of being bent or turned, expanded or contracted, may properly be called a flexible constitution.

In countries of the other class the laws and rules which prescribe the nature, powers, and functions of the government are contained in a document or documents emanating from an authority superior to that of the legislature. This authority may be a monarch who has octroyé a charter alterable by himself only. Or it may be the whole people voting at the polls; or it may be a special assembly, or combination of assemblies, appointed ad hoc. In any case we find in such countries a law or group of laws distinguished from other laws not merely by the character of their contents, but by the source whence they spring and by the force they exert, a force which overrides and breaks all enactments passed by the ordinary legislature. Where the constitution consists of such a law or laws, I propose to call it a rigid constitution, i.e., one which cannot be bent or twisted by the action of the legislature, but stands stiff and solid, opposing a stubborn resistance to the attacks of any majority who may desire to trangress or evade its provisions. As the English Constitution is the best modern instance of the flexible type, so is the American of the rigid type.

It will at once be asked, How can any constitution be truly rigid? Growth and decay are the necessary conditions of the life of institutions as well as of individual organisms. One constitution may be altered less frequently orEdition: current; Page: [322] easily than another, but an absolutely unchangeable constitution is an impossibility.2

The question is pertinent; the suggestion is true. No constitution can be made to stand unsusceptible of change, because if it were, it would cease to be suitable to the conditions amid which it has to work, that is, to the actual forces which sway politics. And being unsuitable, it would be weak, not rooted in the nature of the state and in the respect of the citizens for whom it exists; and being weak, it would presently be overthrown. If therefore we find a rigid constitution tenacious of life, if we find it enjoying, as Virgil says of the gods, a fresh and green old age, we may be sure that it has not stood wholly changeless, but has been so modified as to have adapted itself to the always altering circumstances that have grown up round it. Most of all must this be true of a new country where men and circumstances change faster than in Europe, and where, owing to the equality of conditions, the leaven of new ideas works more thoroughly upon the whole lump.

We must therefore be prepared to expect that the American Constitution will, when its present condition is compared with its fire-new condition in 1789, prove to have felt the hand of time and change.

Historical inquiry verifies this expectation. The Constitution of the United States, rigid though it be, has changed, has developed. It has developed in three ways to which I devote the three following chapters.

It has been changed by amendment. Certain provisions have been struck out of the original document of 1787–88; certain other, and more numerous, provisions have been added. This method needs little explanation, because it is open and direct. It resembles the method in which laws are changed in England, the difference being that whereas in England statutes are changed by the legislature alone, here in the United States the fundamental law is changed in a more complex fashion by the joint action of Congress and the states.

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It has been developed by interpretation, that is, by the unfolding of the meaning implicitly contained in its necessarily brief terms; or by the extension of its provisions to cases which they do not directly contemplate, but which their general spirit may be deemed to cover.

It has been developed by usage, that is, by the establishment of rules not inconsistent with its express provisions, but giving them a character, effect, and direction which they would not have if they stood alone, and by which their working is materially modified. These rules are sometimes embodied in statutes passed by Congress and repealable by Congress. Sometimes they remain in the stage of a mere convention or understanding which has no legal authority, but which everybody knows and accepts. Whatever their form, they must not conflict with the letter of the Constitution, for if they do conflict with it, they will be deemed invalid whenever a question involving them comes before a court of law.

It may be observed that of these three modes of change, the first is the most obvious, direct, and effective, but also the most difficult to apply, because it needs an agreement of many independent bodies which is rarely attainable. The second mode is less potent in its working, because an interpretation put on a provision may be recalled or modified by the same authority, viz., the courts of law (and especially the Supreme Federal Court), which has delivered it. But while a particular interpretation stands, it is as strong as the Constitution itself, being indeed incorporated therewith, and therefore stronger than anything which does not issue from the same ultimate source of power, the will of the people. The weakest, though the easiest and most frequent method, is the third. For, legislation and custom are altogether subordinate to the Constitution, and can take effect only where the letter of the Constitution is silent, and where no authorized interpretation has extended the letter to an unspecified case. But they work readily, quickly, freely; and the developments to be ascribed to them are therefore as much larger in quantity than those due to the two other methods as they are inferior in weight and permanence.

We shall perceive after examining these three sources of change not only that the Constitution as it now stands owes much to them, but that they are likely to modify it still further as time goes on. We shall find that, rigid as it is, it suffers constant qualification and deflection, and that while its words continue in the main the same, it has come to mean something different to the men of 1910 from what it meant to those of 1810, when it had been at work for more than twenty years, or even to those of 1860, when the fires of protracted controversy might be thought to have thrown a glare of light into every corner of its darkest chambers.

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the national government The Amendment of the Constitution fpage="324" lpage="331"
chapter 32

The Amendment of the Constitution

The men who sat in the Convention of 1787 were not sanguine enough, like some of the legislating sages of antiquity, or like such imperial codifiers as the emperor Justinian, to suppose that their work could stand unaltered for all time to come. They provided (art. V) that “Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or on the application of the legislatures of two-thirds of the several States, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes as part of this Constitution when ratified by the legislatures of three-fourths of the several States, or by conventions in three-fourths thereof, as the one or the other mode may be prescribed by Congress.”

There are therefore two methods of framing and proposing amendments.

(A) Congress may itself, by a two-thirds vote in each house, prepare and propose amendments.

(B) The legislatures of two-thirds of the states may require Congress to summon a Constitutional Convention. Congress shall thereupon do so, having no option to refuse; and the convention when called shall draft and submit amendments. No provision is made as to the election and composition of the convention, matters which would therefore appear to be left to the discretion of Congress.

There are also two methods of enacting amendments framed and proposed in either of the foregoing ways. It is left to Congress to prescribe one or other method as Congress may think fit.

(X) The legislatures of three-fourths of the states may ratify any amendments submitted to them.

(Y) Conventions may be called in the several states, and three-fourths of these conventions may ratify.1

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On all the occasions on which the amending power has been exercised, method A has been employed for proposing and method X for ratifying, i.e., no drafting conventions of the whole Union or ratifying conventions in the several states have ever been summoned. The preference of the action of Congress and the state legislatures may be ascribed to the fact that it has never been desired to remodel the whole Constitution, but only to make changes or additions on special points. Moreover, the procedure by national and state conventions might be slower, and would involve controversy over the method of electing those bodies. The consent of the president is not required to a constitutional amendment.2 A two-thirds majority in Congress can override his veto of a bill, and at least that majority is needed to bring a constitutional amendment before the people.

There is only one provision of the Constitution which cannot be changed by this process. It is that which secures to each and every state equal representation in one branch of the legislature. “No State without its consent shall be deprived of its equal suffrage in the Senate” (art. V). It will be observed that this provision does not require unanimity on the part of the states to a change diminishing or extinguishing state representation in the Senate, but merely gives any particular state proposed to be affected an absolute veto on the proposal. If a state were to consent to surrender its rights, and three-fourths of the whole number to concur, the resistance of the remaining fourth would not prevent the amendment from taking effect.

Following President Lincoln, the Americans speak of the Union as indestructible; and the expression, “An indestructible Union of indestructible States,” has been used by the Supreme Court in a famous case.3 But looking at the Constitution simply as a legal document, one finds nothing in it to prevent the adoption of an amendment providing a method for dissolving the existing federal tie, whereupon such method would be applied so as to form new unions, or permit each state to become an absolutely sovereign and independent commonwealth. The power of the people of the United States appears competent to effect this, should it ever be desired, in a perfectly legal way, just as the British Parliament is legally competent to redivide Great Britain into the sixteen or eighteen independent kingdoms which existed within the island in the eighth century.

The amendments made by the above process (A + X) to the Constitution have been in all seventeen in number. These have been made on fiveEdition: current; Page: [326] occasions, and fall into five groups, two of which consist of one amendment each. The first group, including ten amendments made immediately after the adoption of the Constitution, ought to be regarded as a supplement or postscript to it, rather than as changing it. They constitute what the Americans, following the English precedent, call a Bill of Rights, securing the individual citizen and the states against the encroachments of federal power.4 The second and third groups, if a single amendment can be properly called a group (viz., amendments XI and XII), are corrections of minor defects which had disclosed themselves in the working of the Constitution.5 The fourth group marked a political crisis and registered a political victory. It comprises three amendments (XIII, XIV, XV) which forbid slavery, define citizenship, secure the suffrage of citizens against attempts by states to discriminate to the injury of particular classes, and extend federal protection to those citizens who may suffer from the operation of certain kinds of unjust state laws. These three amendments are the outcome of the War of Secession, and were needed in order to confirm and secure for the future its results. The requisite majority of states was obtained under conditions altogether abnormal, some of the lately conquered states ratifying while actually controlled by the Northern armies, others as the price which they were obliged to pay for the readmission to Congress of their senators and representatives.6 The details belong to history. All we need here noteEdition: current; Page: [327] is that these deep-reaching, but under the circumstances perhaps unavoidable, changes were carried through not by the free will of the peoples of three-fourths of the states, but under the pressure of a majority which had triumphed in a great war, and used its command of the national government and military strength of the Union to effect purposs deemed indispensable to the reconstruction of the federal system.7

The two amendments of 1913 may be called a fifth group, for though they relate to quite different matters, both are the products of what may be described as the “radical tendencies” which had grown powerful in the early years of the present century. One of these amendments extended and defined the power of Congress to impose an income tax. The other took the election of senators away from the state legislatures to vest it in the peoples of the states, a concession to the principle of direct popular sovereignty as well as an expression of distrust in legislative bodies. The former of these two met with considerable opposition in the older states of the East, where capitalistic influences have power; the latter was readily accepted in every state.

Many amendments to the Constitution have been at various times suggested to Congress by presidents, or brought forward in Congress by members, but very few of these have ever obtained the requisite two-thirds vote of both houses. In 1789, however, and again in 1807, amendments were passed by Congress and submitted to the states for which the requisite majority of three-fourths of the states was not obtained; and in February and March 1861 an amendment forbidding the Constitution to be ever so amended as to authorize Congress to interfere with the “domestic institutions,” including slavery, of any state, was passed in both houses, but never submitted to the states, because war broke out immediately afterwards. It would doubtless, had peace been preserved, have failed to obtain the acceptance of three-fourths of the states, and its effect could only have been to require those who might thereafter propose to amend the Constitution so as to deal with slavery, to propose also the repeal of this particular amendment itself.8

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The moral of these facts is not far to seek. Although it has long been the habit of the Americans to talk of their Constitution with almost superstitious reverence, there have often been times when leading statesmen, perhaps even political parties, would have materially altered it if they could have done so. There have, moreover, been some alterations suggested in it, which the impartial good sense of the wise would have approved, but which have never been submitted to the states, because it was known they could not be carried by the requisite majority.9 If, therefore, comparatively little use has been made of the provisions for amendment, this has been due, not solely to the excellence of the original instrument, but also the difficulties which surround the process of change. Alterations, though seldom large alterations, have been needed, to cure admitted faults or to supply dangerous omissions, but the process has been so difficult that it has been successfully applied only in three kinds of cases: (a) matters of minor consequence involving no party interests (amendments XI, XII, and XVI), b in the course of a revolutionary movement which had dislocated the Union itself (amendments XIII, XIV, XV), and c matters in which there existed a general sentiment common to both parties desiring alteration (amendments I to X and amendment XVII).

The passing of the two amendments of 1913 may suggest that the Constitution is more likely to undergo change in the near future than hadEdition: current; Page: [329] seemed probable twenty years ago. Still it is worth while to enquire why the regular procedure for amendment had therefore proved in practice so hard to apply.

Partly, of course, owing to the inherent disputatiousness and perversity (what the Americans call “cussedness”) of bodies of men. It is difficult to get two-thirds of two assemblies (the houses of Congress) and three-fourths of forty-eight commonwealths, each of which acts by two assemblies, for the state legislatures are all double-chambered, to agree to the same practical proposition. Except under the pressure of urgent troubles, such as were those which procured the acceptance of the Constitution itself in 1788, few persons or bodies will consent to forego objections of detail, perhaps in themselves reasonable, for the mere sake of agreeing to what others have accepted. They want to have what seems to themselves the very best, instead of a second best suggested by someone else. Now, bodies enjoying so much legal independence as do the legislatures of the states, far from being disposed to defer to Congress or to one another, are more jealous, more suspicious, more vain and opinionated, than so many individuals. Rarely will anything but an active party spirit, seeking either a common party object or individual gain to flow from party success, make them work together.

If an amendment comes to the legislatures recommended by the general voice of their party, they will be quick to adopt it. But in that case it will encounter the hostility of the opposite party, and parties are in many states pretty evenly balanced. It is seldom that a two-thirds majority in either house of Congress can be secured on a party issue; and of course such majorities in both houses, and a three-fourths majority of state legislatures on a party issue, are still less probable. Now, in a country pervaded by the spirit of party, most questions either are at starting, or soon become, controversial.10 A change in the Constitution, however useful its ultimate consequences, is likely to be for the moment deemed more advantageous to one party than to the other, and this is enough to make the other party oppose it. Indeed, the mere fact that a proposal comes from one side, rouses the suspicion of the other. There is always that dilemma of which England has so often felt the evil consequences. If a measure of reform is immediately pressing, it becomes matter of party contention, it excites temper and passion. If it is not pressing, neither party, having other and nearer aims,Edition: current; Page: [330] cares to take it up and push it through. In America, a party amendment to the Constitution can very seldom be carried. Most nonparty amendments fall into the category of those things which, because they are everybody’s business, are the business of nobody.

It is evident when one considers the nature of a rigid or supreme constitution, that some method of altering it so as to make it conform to altered facts and ideas is indispensable. A European critic may remark that the American method has failed to answer the expectations formed of it. The belief, he will say, of its authors was that while nothing less than a pretty general agreement would justify alteration, that agreement would exist when obvious omissions preventing its smooth working were discovered. But this has not come to pass. There have been long and fierce controversies over the construction of several points in the Constitution, over the right of Congress to spend money on internal improvements, to charter a national bank, to impose a protective tariff, above all, over the treatment of slavery in the Territories. But the method of amendment was not applied to any of these questions, because no general agreement could be reached upon them, or indeed upon any but secondary matters. So the struggle over the interpretation of a document which it was found impossible to amend, passed from the law courts to the battlefield. Americans reply to such criticisms by observing that the power of amending the Constitution is one which cannot prudently be employed to conclude current political controversies, that if it were so used no constitution could be either rigid or reasonably permanent, that some latitude of construction is desirable, and that in the above-mentioned cases amendments excluding absolutely one or other of the constructions contended for would either have tied down the legislature too tightly or have hastened a probably inevitable conflict. And they now (1914) add that the ease and speed with which the Seventeenth Amendment was passed that when there exists a widespread popular wish for any particular change, it can be promptly gratified.

Ought the process of change to be made easier, say by requiring only a bare majority in Congress, and a two-thirds majority of states? American statesmen think not. A swift and easy method would not only weaken the sense of security which the rigid Constitution now gives, but would increase the troubles of current politics by stimulating a majority in Congress to frequently submit amendments to the states. The habit of mending would turn into the habit of tinkering. There would be too little distinction between changes in the ordinary statute law, which require the agreement of majorities in the two houses and the president, and changes in the more solemnlyEdition: current; Page: [331] enacted fundamental law. And the rights of the states, upon which congressional legislation cannot now directly encroach, would be endangered. The French scheme, under which an absolute majority of the two chambers, sitting together, can amend the constitution; or even the Swiss scheme, under which a bare majority of the voting citizens, coupled with a majority of the cantons, can ratify constitutional changes drafted by the chambers, in pursuance of a previous popular vote for the revision of the constitution,11 is considered by the Americans dangerously lax. The idea reigns that solidity and security are the most vital attributes of a fundamental law.

From this there has followed another interesting result. Since modifications or developments are often needed, and since they can rarely be made by amendment, some other way of making them must be found. The ingenuity of lawyers has discovered one method in interpretation, while the dexterity of politicians has invented a variety of devices whereby legislation may extend, or usage may modify, the express provisions of the apparently immovable and inflexible instrument.

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the national government The Interpretation of the Constitution fpage="332" lpage="347"
chapter 33

The Interpretation of the Constitution

The Constitution of England is contained in hundreds of volumes of statutes and reported cases; the Constitution of the United States (including the amendments) may be read through aloud in twenty-three minutes. It is about half as long as St. Paul’s first Epistle to the Corinthians, and only one-fortieth part as long as the Irish Land Act of 1881. History knows few instruments which in so few words lay down equally momentous rules on a vast range of matters of the highest importance and complexity. The Convention of 1787 were well advised in making their draft short, because it was essential that the people should comprehend it, because fresh differences of view would have emerged the further they had gone into details, and because the more one specifies, the more one has to specify and to attempt the impossible task of providing beforehand for all contingencies. These sages were therefore content to lay down a few general rules and principles, leaving some details to be filled in by congressional legislation, and foreseeing that for others it would be necessary to trust to interpretation.

It is plain that the shorter a law is, the more general must its language be, and the greater therefore the need for interpretation. So too the greater the range of a law, and the more numerous and serious the cases which it governs, the more frequently will its meaning be canvassed. There have been statutes dealing with private law, such as the Lex Aquilia at Rome and the Statute of Frauds in England, on which many volumes of commentaries have been written, and thousands of juristic and judicial constructions placed. Much more then must we expect to find great public and constitutional enactments subjected to the closest scrutiny in order to discover every shade of meaning which their words can be made to bear. Probably no writing except the New Testament, the Koran, the Pentateuch, and the Digest ofEdition: current; Page: [333] the emperor Justinian has employed so much ingenuity and labour as the American Constitution, in sifting, weighing, comparing, illustrating, twisting, and torturing its text. It resembles theological writings in this, that both, while taken to be immutable guides, have to be adapted to a constantly changing world, the one to political conditions which vary from year to year and never return to their former state, the other to new phases of thought and emotion, new beliefs in the realms of physical and ethical philosophy. There must, therefore, be a development in constitutional formulas, just as there is in theological. It will come, it cannot be averted, for it comes in virtue of a law of nature: all that men can do is to shut their eyes to it, and conceal the reality of change under the continued use of time-honoured phrases, trying to persuade themselves that these phrases mean the same thing to their minds today as they meant generations or centuries ago. As a great living theologian says, “In a higher world it is otherwise; but here below to live is to change, and to be perfect is to have changed often.” 1

The Constitution of the United States is so concise and so general in its terms, that even had America been as slowly moving a country as China, many questions must have risen on the interpretation of the fundamental law which would have modified its aspect. But America has been the most swiftly expanding of all countries. Hence the questions that have presented themselves have often related to matters which the framers of the Constitution could not have contemplated. Wiser than Justinian before them or Napoleon after them, they foresaw that their work would need to be elucidated by judicial commentary. But they were far from conjecturing the enormous strain to which some of their expressions would be subjected in the effort to apply them to new facts.

I must not venture on any general account of the interpretation of the Constitution, nor attempt to set forth the rules of construction laid down by judges and commentators, for this is a vast matter and a matter for law books. All that this chapter has to do is to indicate, very generally, in what way and with what results the Constitution has been expanded, developed, modified, by interpretation; and with that view there are three points that chiefly need discussion: (1) the authorities entitled to interpret the Constitution, (2) the main principles followed in determining whether or not the Constitution has granted certain powers, (3) the checks on possible abuses of the interpreting power.

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I. To whom does it belong to interpret the Constitution? Any question arising in a legal proceeding as to the meaning and application of this fundamental law will evidently be settled by the courts of law. Every court is equally bound to pronounce and competent to pronounce on such questions, a state court no less than a federal court;2 but as all the more important questions are carried by appeal to the Supreme Federal Court, it is practically that court whose opinion determines them.

Where the federal courts have declared the meaning of a law, everyone ought to accept and guide himself by their deliverance. But there are always questions of construction which have not been settled by the courts, some because they have not happened to arise in a lawsuit, others because they are such as cannot arise in a lawsuit. As regards such points, every authority, federal or state, as well as every citizen, must be guided by the best view he or they can form of the true intent and meaning of the Constitution, taking, of course, the risk that this view may turn out to be wrong.

There are also points of construction on which every court, following a well-established practice, will refuse to decide, because they are deemed to be of “a purely political nature,” a vague description, but one which could be made more specific only by an enumeration of the cases which have settled the practice. These points are accordingly left to the discretion of the executive and legislative powers, each of which forms its view as to the matters falling within its sphere, and in acting in that view is entitled to the obedience of the citizens and of the states also.

It is therefore an error to suppose that the judiciary is the only interpreter of the Constitution, for a large field is left open to the other authorities of the government, whose views need not coincide, so that a dispute between those authorities, although turning on the meaning of the Constitution, may be incapable of being settled by any legal proceeding. This causes no great confusion, because the decision, whether of the political or the judicial authority, is conclusive so far as regards the particular controversy or matter passed upon.

The above is the doctrine now generally accepted in America. But at one time the presidents claimed the much wider right of being, except in questions of pure private law, generally and prima facie entitled to interpret the Constitution for themselves, and to act on their own interpretation, even when it ran counter to that delivered by the Supreme Court. Thus Jefferson denounced the doctrine laid down in the famous judgment of Chief JusticeEdition: current; Page: [335] Marshall in the case of Marbury v. Madison;3 thus Jackson insisted that the Supreme Court was mistaken in holding that Congress had power to charter the United States Bank, and that he, knowing better than the court did what the Constitution meant to permit, was entitled to attack the bank as an illegal institution, and to veto a bill proposing to recharter it.4 Majorities in Congress have more than once claimed for themselves the same independence. But of late years both the executive and the legislature have practically receded from the position which the language formerly used seemed to assert; while, on the other hand, the judiciary, by their tendency during the whole course of their history to support every exercise of power which they did not deem plainly unconstitutional, have left a wide field to those authorities. If the latter have not used this freedom to stretch the Constitution even more than they have done, it is not solely the courts of law, but also public opinion and their own professional associations (most presidents, ministers, and congressional leaders having been lawyers) that have checked them.

II. The Constitution has been expanded by construction in two ways. Powers have been exercised, sometimes by the president, more often by the legislature in passing statutes, and the question has arisen whether the powers so exercised were rightfully exercised, i.e., were really contained in the Constitution. When the question was resolved in the affirmative by the court, the power has been henceforth recognized as a part of the Constitution, although, of course, liable to be subsequently denied by a reversal of the decision which established it. This is one way. The other is where some piece of state legislation alleged to contravene the Constitution has been judicially decided to contravene it, and to be therefore invalid. The decision, in narrowing the limits of state authority, tends to widen the prohibitive authority of the Constitution, and confirms it in a range and scope of action which was previously doubtful.

Questions of the above kinds sometimes arise as questions of interpretationEdition: current; Page: [336] in the strict sense of the term, i.e., as questions of the meaning of a term or phrase which is so far ambiguous that it might be taken either to cover or not to cover a case apparently contemplated by the people when they enacted the Constitution. Sometimes they are rather questions to which we may apply the name of construction, i.e., the case that has arisen is one apparently not contemplated by the enacters of the Constitution, or one which, though possibly contemplated, has for brevity’s sake been omitted; but the Constitution has nevertheless to be applied to its solution. In the former case the enacting power has said something which bears, or is supposed to bear, on the matter, and the point to be determined is, What do the words mean? In the latter it has not directly referred to the matter, and the question is, Can anything be gathered from its language which covers the point that has arisen, which establishes a principle large enough to reach and include an unmentioned case, indicating what the enacting authority would have said had the matter been present to its mind, or had it thought fit to enter on an enumeration of specific instances?5 As the Constitution is not only a well-drafted instrument with few ambiguities but also a short instrument which speaks in very general terms, mere interpretation has been far less difficult than construction.6 It is through the latter chiefly that the Constitution has been, and still continues to be, developed and expanded. The nature of these expansions will appear from the nature of the federal government. It is a government of delegated and specifiedEdition: current; Page: [337] powers. The people have entrusted to it, not the plenitude of their own authority but certain enumerated functions, and its lawful action is limited to these functions. Hence, when the federal executive does an act, or the federal legislature passes a law, the question arises, Is the power to do this act or pass this law one of the powes which the people have by the Constitution delegated to their agents? The power may never have been exerted before. It may not be found expressed, in so many words, in the Constitution. Nevertheless it may, upon the true construction of that instrument, taking one clause with another, be held to be therein contained.

Now the doctrines laid down by Chief Justice Marshall, and on which the courts have constantly since proceeded, may be summed up in two propositions.

1. Every power alleged to be vested in the national government, or any organ thereof, must be affirmatively shown to have been granted. There is no presumption in favour of the existence of a power; on the contrary, the burden of proof lies on those who assert its existence, to point out something in the Constitution which, either expressly or by necessary implication, confers it. Just as an agent, claiming to act on behalf of his principal, must make out by positive evidence that his principal gave him the authority he relies on; so Congress, or those who rely on one of its statutes, are bound to show that the people have authorized the legislature to pass the statute. The search for the power will be conducted in a spirit of strict exactitude, and if there be found in the Constitution nothing which directly or impliedly conveys it, then whatever the executive or legislature of the national government, or both of them together, may have done in the persuasion of its existence, must be deemed null and void, like the act of any other unauthorized agent.7

2. When once the grant of a power by the people to the national government has been established, that power will be construed broadly. The strictness applied in determining its existence gives place to liberality in supporting its application. The people—so Marshall and his successors have argued—when they confer a power, must be deemed to confer a wide discretion as to the means whereby it is to be used in their service. For theirEdition: current; Page: [338] main object is that it should be used vigorously and wisely, which it cannot be if the choice of methods is narrowly restricted; and while the people may well be chary in delegating powers to their agents, they must be presumed, when they do grant these powers, to grant them with confidence in the agents’ judgment, allowing all that freedom in using one means or another to attain the desired end which is needed to ensure success.8 This, which would in any case be the common-sense view, is fortified by the language of the Constitution, which authorizes Congress “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or office thereof.” The sovereignty of the national government, therefore, “though limited to specified objects, is plenary as to those objects” 9 and supreme in its sphere. Congress, which cannot go one step beyond the circle of action which the Constitution has traced for it, may within that circle choose any means which it deems apt for executing its powers, and is in its choice of means subject to no review by the courts in their function of interpreters, because the people have made their representatives the sole and absolute judges of the mode in which the granted powers shall be employed. This doctrine of implied powers, and the interpretation of the words “necessary and proper,” were for many years a theme of bitter and incessant controversy among American lawyers and publicists.10 The history of the United States is in a large measure a historyEdition: current; Page: [339] of the arguments which sought to enlarge or restrict its import. One school of statesmen urged that a lax construction would practically leave the states at the mercy of the national government, and remove those checks on the latter which the Constitution was designed to create; while the very fact that some powers were specifically granted must be taken to import that those not specified were withheld, according to the old maxim expressio unius exclusio alterius, which Lord Bacon concisely explains by saying, “as exception strengthens the force of a law in cases not excepted, so enumeration weakens it in cases not enumerated.” It was replied by the opposite school that to limit the powers of the government to those expressly set forth in the Constitution would render that instrument unfit to serve the purposes of a growing and changing nation, and would, by leaving men no legal means of attaining necessary but originally uncontemplated aims, provoke revolution and work the destruction of the Constitution itself.11

This latter contention derived much support from the fact that there were certain powers that had not been mentioned in the Constitution, but which were so obviously incident to a national government that they must be deemed to be raised by implication.12 For instance, the only offences which Congress is expressly empowered to punish are treason, the counterfeiting of the coin or securities of the government, and piracies and other offences against the law of nations. But it was very early held that the power to declare other acts to be offences against the United States, and punish them as such, existed as a necessary appendage to various general powers. So the power to regulate commerce covered the power to punish offences obstructing commerce; the power to manage the post office included the right to fix penalties on the theft of letters; and, in fact, a whole mass of criminal law grew up as a sanction to the civil laws which Congress had been directed to pass.

The three lines along which this development of the implied powers of the government has chiefly progressed, have been those marked out by the three express powers of taxing and borrowing money, of regulatingEdition: current; Page: [340]