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Full text of "The American conception of liberty and government"

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599 



BROWN UNIVERSITY 



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*Ke Colver Lectures 

1 gi6 

The American Conception of Liberty 

and 
[The American Conception of Government 

By 

Frank Johnson Goodnow, LL,D. 

President of Johns Hopkins University 



Providence 
Printed for the University 



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Digitized by tine Internet Arcinive 

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The American Conception 

of 

Liberty and Government 



By 

Frank Johnson Goodnow, LL.D. 
President of Johns Hopkins University 






Providence 

Standard Printing Company 

1916 



^r- 



Copyright, 1 91 6, by Brown University 
All rights reserved 



THE AMERICAN CONCEPTION 

OF 

LIBERTY AND GOVERNMENT 



34317G 



CONTENTS 



PAGE 

The American Conception of Liberty . . .7 
The American Conception of Government . . 33 



THE AMERICAN 



CONCEPTION OF LIBERTY 



THE AMERICAN 
CONCEPTION OF LIBERTY 



THE end of the eighteenth century was marked by 
the formulation and general acceptance by think- 
ing men in Europe of a political philosophy which laid 
great emphasis on individual private rights. Man was 
by this philosophy conceived of as endowed at the time 
of his birth with certain inalienable rights. Thus, 
Rousseau in his "Social Contract" treated man as pri- 
'^marily an individual and only secondarily as a member 
of human society. Society itself was regarded as based 
upon a contract made between the individuals by 
whose union it was formed. At the time of making this 
contract these individuals were deemed to have re- 
served certain rights spoken of as '^natural" rights. 
These rights could neither be taken away nor be limited 
without the consent of the individual affected. 

Such a theory, of course, had no historical justifica- 
tion. There was no record of the making of any such 
contract as was postulated. It was impossible to assert, 
as a matter of fact even, that man existed first as an 
individual and that later he became, as the result of 
any act of volition on his part, a member of human 
society. But at a time when truth was sought usually 
through speculation rather than observation, the ab- 
sence of proof of the facts which lay at the basis of the 
theory did not seriously trouble those by whom it was 
formulated or accepted. 

While there was no justification in fact for this social 
contract theory and this doctrine of natural rights, 
their acceptance by thinking men did nevertheless have 

[9] 



an important' in^uence upon the development of 
thought and in that way upon the actual conditions of 
human life. For these theories were not only a philo- 
sophical explanation of the organization of society; 
they were at the same time the result of the then exist- 
ing social conditions, and like most such theories were 
also an attempt to justify a course of conduct which 
was believed to be expedient. 

At the end of the eighteenth century a great change 
was beginning in Western Europe. The enlargement of 
the field of commercial transactions, due to the dis- 
covery and colonization of America and to the contact 
of Europe with Asia, particularly with India, had 
opened new spheres of activity to those minded for 
adventure. The invention of the steam engine and its 
application to manufacturing were rapidly changing 
industrial conditions. The factory system was in pro- 
cess of establishment and had already begun to displace 
domestic industry. 

The new possibilities of reward for individual en- 
deavor made men impatient of the restrictions on 
private initiative incident to an industrial and com- 
mercial system which was fast passing away. They 
therefore welcomed with eagerness a political philos- 
ophy which, owing to the emphasis it placed upon 
private rights, would if acted upon have the effect of 
freeing them from what they regarded as hampering 
limitations on individual initiative. 

This political philosophy was incorporated into the 
celebrated Declaration of the Rights of Man and of 
the Citizen promulgated in France on the eve of the 
Revolution. A perusal of this remarkable document 
reveals the fact, however, that the reformers of France 
had not altogether emancipated themselves from the 

[10] 



influences of their historical development. For almost 
every clause of the Declaration refers to rights under 
the law rather than to rights which were natural to 
and inherent in man. 

The subsequent development in Europe of this pri- 
vate rights philosophy is along the lines thus marked 
out by the Declaration. The rights which men have 
been recognized as possessing have not been considered 
to be inherent rights, attaching to man at the time of 
his birth, so much as rights which find their origin in 
the law as adopted by that organ of government re- 
garded as representative of the society of which the 
individual man is a member. 

In a word, man is regarded now throughout Europe, 
contrary to the view expressed by Rousseau, as pri- 
marily a member of society and secondarily as an 
individual. The rights which he possesses are, it is 
believed, conferred upon him, not by his Creator, but 
rather by the society to which he belongs. What they 
are is to be determined by the legislative authority 
in view of the needs of that society. Social expediency, 
rather than natural right, is thus to determine the 
sphere of individual freedom of action. 

The development of this private rights philosophy 
has been, however, somewhat different in the United 
States. The philosophy of Rousseau was accepted in 
this country probably with even greater enthusiasm 
than was the case in Europe. The social and economic 
conditions^ of the Western World were, in the first 
place, more favorable than in Europe for its accept- 
ance. There was at the time no well-developed social 
organization in this country. America was the land of 
the pioneer, who had to rely for most of his success 
upon his strong right arm. Such communities as did 



exist were loosely organized and separated one from 
another. Roads worthy of the name hardly existed 
and communication was possible only by rivers which 
were imperfectly navigable or over a sea which, when 
account is taken of the vessels then in use, was tem- 
pestuous in character. 

Furthermore, the religious and moral influences in 
this country, which owed much to the Protestant 
Reformation, all favored the development of an ex- 
treme individualism. They emphasized personal re- 
sponsibility and the salvation of the individual soul. 
It was the fate of the individual rather than that of 
the social group which appealed to the preacher or 
aroused the anxiety of the theologian. It was individ- 
ual rather than social morality which was emphasized 
by the ethical teacher and received attention in moral 
codes. Everything, in a word, favored the acceptance 
of the theory of individual natural rights. 

The result was the adoption in this country of a 
doctrine of unadulterated individualism. Every one 
had rights. Social duties were hardly recognized, or if 
recognized little emphasis was laid upon them. It was 
apparently thought that every one was able and willing 
to protect his rights, and that as a result of the struggle 
between men for their rights and of the compromise 
of what appeared to be conflicting rights would arise 
an effective social organization. 

The rights with which it was believed that man was 
endowed by his Creator were, as was the case in France, 
set forth in bills of rights which formed an important 
part of American constitutions. The form in which 
they were stated in American bills of rights was sub- 
ject to fewer qualifications than was the case in France. 
Their origin was found in nature rather than in the 

[12] 



law. The development of these rights, further, has 
been quite different from the European development 
which has been noted. American courts, early in the 
history of the country, claimed and secured the general 
recognition of a power to declare unconstitutional and 
therefore void acts of legislation which, in their opinion, 
were not in conformity with these bills of rights. In 
their determination of these questions, American courts 
appear to have been largely influenced by the private 
rights conception of the prevalent political philosophy. 
The result has been that the private individual rights 
of American citizens have come to be formulated and 
defined, not by representative legislative bodies, as is 
now the rule in Europe, but by courts which have in 
the past been much under the influence of the political 
philosophy of the eighteenth century. 

In thus adopting the Continental political philosophy 
of the eighteenth century, American judges modified 
greatly the conception of individu al liberty which was 
the basis of English political practice. The most im- 
portant modifications were two in number : — 

In the first place, the rights of men, of which their 
liberty consisted, were, as natural rights, regarded in 
a measure — and in no small measure — as independent 
of the law. This modification of the original English 
idea was an almost necessary result of the fact that 
these rights were set forth in written constitutions, 
which were placed under the protection of courts. 
The written constitution was considered to be the act 
of the sovereign people. It therefore was superior to 
any mere laws which might be passed by the repre- 
sentatives of the people in the lawmaking bodies. 
These bodies being simply delegates of the people were 
not authorized to do anything not within the powers 

[13] 



granted to them. If a written constitution provided 
that a man had a certain right, it was evident that the 
legislature could not take it away from him. When the 
courts assumed in the United States the power to 
declare unconstitutional acts of the legislature, they 
did so because their duty was to apply the law as they 
found it. They might not, therefore, apply as law an 
act of the legislature which in their opinion was in 
conflict with the Constitution, since, being in conflict 
with the Constitution, the highest law of all, such an 
act could not be law. 

In this way natural rights came to have an existence 
apart from the law, or, at any rate, apart from the law 
as it had up to that time been understood. 

The importance which was attributed by the Amer- 
icans of those days to this idea of natural rather than 
legal rights will be appreciated when we recall that 
the Constitution of the United States, which in its 
original form contained few if any provisions relative 
to these natural rights, was ultimately adopted only 
on condition that they should be enumerated in a bill 
of rights to be appended to the Constitution. This 
was subsequently done in Amendments I to IX. The 
Ninth Amendment to the United States Constitution in 
particular is a characteristic expression of the feeling of 
the time that these natural rights existed independently 
of all law. It reads: *'The enumeration in the Consti- 
tution of certain rights shall not be construed to deny 
or disparage others retained by the people.*' 

In the second place, our American courts emphasized 
substantive rights rather than the right to particular 
methods of procedure. Most of the historic rights of 
Englishmen had been rights to particular methods of 
action. Thus, the right to a special kind of trial for 

[14] 



crime — that is, the right to trial by jury — was regarded 
as one of the most sacred rights of an Englishman. 

The English insistence on particular methods of pro- 
cedure was due to the belief that these methods had 
shown themselves, as the result of a long experience, 
to be valuable aids in securing the end desired. This 
end was freedom from arbitrary autocratic action on 
the part of those to whom political power had been 
entrusted. It was the rule of law — that is, the rule of 
a principle of general application as opposed to the 
rule of a person arbitrary and capricious — which the 
Englishman sought. It was to secure his rights through 
this rule of law that he originated the form of govern- 
ment which has been called * 'constitutional.** The 
Englishman, as a matter of fact, never claimed that he 
had any natural rights; that is, rights to which he was 
entitled by reason of the fact that he is a man, a 
human being. He was perfectly satisfied if it was 
recognized in his political and legal system that no 
attempt might be made, except in the manner by law 
provided, to take away what he might think were his 
rights. This claim being admitted, he felt that in some 
way or other he would be able to have the law so form- 
ulated that he could secure the recognition of all 
substantive rights which he ought at any particular 
time to possess. To secure the recognition in the law 
of these substantive rights he insisted upon the grant 
to more and more of the people of the land of the 
power to control legislation.* For through the control 
of legislation was obtained the power to determine 
what are his rights. 

The rights of Englishmen were, therefore, so far as 
they were defined at all, to be found in acts of legisla- 
tion and in judicial decisions. One of the earliest and 

[15] 



most important of these acts of legislation is what is 
known as the Great Charter, which was originally 
forced from a reluctant king in 1215. The most notable 
clauses of the Great Charter deal not so much with 
what have been called "substantive" as with procedural 
rights. Thus, in section 12 the Crown enacts that "no 
scutage or aid [i. e., no tax] shall be imposed in our 
kingdom unless by the General Council of our king- 
dom.'' Section 14 provides how the General Council 
shall be composed and called together. Section 39, 
probably the most important section of all, provides 
that "no freeman shall be taken or imprisoned or dis- 
seized or outlawed or banished or anyways destroyed, 
nor will we pass upon him nor will we send upon him, 
unless by the lawful judgment of his peers, or by the 
law of the land." 

It will be noticed that this famous provision of the 
Great Charter accords hardly any recognition to a 
substantive right. It is not said that a freeman has 
any right not to be "taken or imprisoned or disseized 
or outlawed or banished." Indeed it is clearly implied 
that such a right does not exist. What the section does 
say is that these things shall not be done to the freeman 
except in a specified way, which is, according to law. 
It is the rule of law which the Great Charter emphasizes. 
It was to the rule of law then that the Englishmen of 
the beginning of the thirteenth century were striving 
to attain. 

The power of the American courts to determine in 
the concrete and in detail, — which after all is the only 
thing that amounts to much in this life,-^the content 
of private rights was very large because of the fact 
that these rights were often stated in very general 
terms in the Constitution. The most marked instance 

[16] 



of such vagueness is perhaps to be found in the almost 
universal provision that no one shall be deprived of 
life, liberty or property without due process of law. 
The Constitution does not define property nor liberty 
nor due process of law. All of these matters have had 
to be "pricked out," as Mr. Justice Holmes of the 
United States Supreme Court has said in decisions 
which are almost too numerous to be counted. 
' The following are some of the conclusions character- 
istic of American ideas of private rights which the courts 
have reached : 

The clause providing that private property shall not 
be taken for public use without just compensation has 
been interpreted as prohibiting inferentially the taking 
of property for private use. The interpretation is 
really due to the recognition in the individual of a 
natural inherent substantive right of property which 
may be taken from him by the government only in the 
case mentioned in the Constitution, viz., by taking 
property for public use. It is therefore altogether prob- 
able that the American courts would have held uncon- 
stitutional an act of the legislature similar to the recent 
act of the British Parliament apportioning the property 
which had been held to belong to what was known as 
the ''Scotch Wee Kirk'* between that church and the 
'Tree Kirk." 

Again the clause providing that no person shall "be 
deprived of life, liberty or property without due process 
of law" has been held by some of the State courts, 
under the influence of the idea of inherent absolute 
individual substantive rights to prevent the legislature 
from passing an act which changes the basis of the 
liability of employer to employed. The old basis of 
the liability was negligence. The act declared uncon- 

[17] 



stitutional provided in the case of accident a liability 
on the part of the employer regardless of the question 
whether he was negligent or not. Other acts of legis- 
lation have been declared unconstitutional as violating 
this due process clause, because they imposed upon an 
employer the duty to pay employees in money, or at 
stated periods, or because they forbade an employer 
to work his men more than a certain number of hours 
a week or a day. These acts were held unconstitutional 
as depriving either the employer or the employed of 
his property or his liberty. 

Such decisions have been reached as a result of the 
fact that the American courts have emphasized the 
idea of a substantive right and have lost sight of the 
fact that the right granted in the Constitution if defined 
in the light of its history was a right not under all 
conceivable circumstances to liberty or property, but 
merely a right not to be deprived of liberty or property 
except in a certain way, that is, by due process of law. 
The fact that in all these cases an act of the legislature, 
that is, a law in the historic English sense, provided 
that liberty or property should be taken away was not 
regarded by the courts as due process of law. In fact 
the courts of the United States have really taken the 
position that there is no due process of law by which 
the individual may be deprived of some of these abso- 
lute substantive inherent natural rights. 

Furthermore and partly as a consequence of the 
acceptance of the conception of private rights as in- 
herent and not based upon law the content and char- 
acter of private rights specifically provided for by 
legislation have been fixed, not so much as the result 
of an inquiry into their social expediency but rather 
because it has been believed that the individual has 

[18] 



rights with which he has been endowed by his Creator, 
rights which it would be improper to take away or to 
limit even in the interest of society. ^^ 

Take for example the qualifications required for 
entrance into the legal profession. What they shall 
be is, in large if not in controlling degree, determined 
in view of the assumed existence in every respectable 
and reasonably intelligent individual of a right to 
practise law. Such considerations as the evil influence 
upon the community of a superabundance of lawyers 
are given very little weight. Although it might easily 
be shown that the overcrowding of the legal profession 
almost inevitably leads to an increase of litigation which 
has evil effects upon the community, that fact is not 
permitted to have much influence on the determination 
of the qualifications of lawyers since an encroachment 
might as a consequence be made upon the inborn and 
inherent right of every man to become a lawyer. 

This general attitude towards private rights is, it 
seems to me, at the present time in process of modifi- 
cation. Whatever may have been formerly the ad- 
vantages attaching to a private rights political philo- 
sophy — and that they were many I should be the last 
person to deny — this question of private rights has 
been reexamined with the idea of ascertaining whether, 
under the conditions of modern life, our traditional 
political philosophy should be retained. 

The political philosophy of the eighteenth century 
was formulated before the announcement and accept- 
ance of the theory of evolutionary development. 
The natural rights doctrine presupposed almost that 
society was static or stationary rather than dynamic or 
progressive in character. It was generally believed 
at the end of the eighteenth century that there was 

[19] 



a social state which under all conditions and at all 
times would be absolutely ideal. The rights which 
man had were believed to come from his Creator. 
These rights consequently were the same then as they 
once had been and would always remain the same. 
Natural rights were in theory thus permanent and 
immutable. Natural rights being conceived of as 
eternal and immutable, the theory of natural rights did 
not permit of their amendment in view of a change 
in conditions. 

The actual rights which at the close of the eighteenth 
century were recognized were, however, as a matter of 
fact influenced in lar^e measure by the social and 
economic conditions of the time when the recognition 
was made. Those conditions have certainly been sub- 
jected to great modifications. The pioneer can no 
longer rely upon himself alone. Indeed with the in- 
crease of population and the conquest of the wilderness 
the pioneer has almost disappeared. The improvement 
in the means of communication, which has been one of 
the most marked changes that have occurred, has 
placed in close contact and relationship once separated 
and unrelated communities. The canal and the rail- 
way, the steamship and the locomotive, the telegraph 
and the telephone, we might add the motor car and 
the aeroplane, have all contributed to the formation of 
a social organization such as our forefathers never saw 
in their wildest dreams. The accumulation of capital, 
the concentration of industry with the accompanying 
increase in the size of the industrial unit and the loss of 
personal relations between employer and employed, 
have all brought about a constitution of society very 
different from that which was to be found a century 
and a quarter ago. Changed conditions, it has been 

[20] 



thought, must bring in their train different conceptions 
of private rights if society is to be advantageously 
carried on. In other words, while insistence on indi- 
vidual rights may have been of great advantage at 
a time when the social organization was not highly 
developed, it may become a menace when social rather 
than individual efficiency is the necessary prerequisite 
of progress. For social efficiency probably owes 
more to the common realization of social duties than 
to the general insistence on privileges based on indi- 
vidual private rights. As our conditions have changed, 
as the importance of the social group has been rea- 
lized, as it has been perceived that social efficiency 
must be secured if we are to attain and retain our 
place in the field of national competition which is 
practically cote rmin ous with the world, the attitude of 
our courts on the one hand towards private rights and 
on the other hand towards social duties has gradually 
been changing. The general theory remains the same. 
^an is still said to be possessed of inherent natural 
rights of which he may not be deprived without his 
consent. The courts still now and then hold uncon- 
stitutional acts of legislature which appear to encroach 
upon those rights. At the same time the sphere of 
governmental action is continually widening and the 
actual content of individual private rights is being in- 
creasingly narrowed. 

About the middle of the nineteenth century the 
courts of the country invented what is spoken of as 
the'^police power, which may be said for all practical 
purposes to be unaffected by the private rights theory. 
The government may exercise this police power unre- 
stricted by the constitutional limitations to be found 
in bills of rights. Where the courts obtained either 

[21] 



the conception or the name of what they call the 
''police power'* it is difficult to say. Indeed it is 
unnecessary on this occasion to enter upon an inquiry 
into this subject. It will not be improper, however, 
to call your attention to the fact that originally ''Police" 
as one of the terms of political science meant govern- 
ment. Political science was indeed the science of police. 
As, however, the separate branches of government were 
differentiated such as finance, jurisprudence, diplomacy 
and military affairs, each of which received separate 
scientific treatment, the word " police " came to be used 
to indicate what was left of government after these 
particular branches had been subtracted therefrom. 
Later, as the result of a similar process of exclusion, 
the word "police" came to mean that part of the ad- 
ministration of the strictly domestic or internal affairs 
of a country which has to do with the attempts made 
to prevent the happening of evil and to secure through 
limitations on freedom of individual action good social 
conditions. The police power is thus the power which 
is exercised in the interest of the public safety and 
convenience. 

Two circumstances have contributed to the develop- 
ment and exercise of this new power, which, as has 
been said, is not subject to the constitutional limita- 
tions of bills of rights. 

The first is to be found in the change in the economic 
conditions of American life to which reference has 
already been made. The substitution in industry of 
mechanical for muscular power with the incidental re- 
placement of hand by machine labor, the consequent 
development of the factory system with the greater 
dangers to human life and the increasing prevalence 
and severity of occupational diseases, have made it 

[22] 



seem necessary for the salvation of the race that man 
be protected against himself even at the expense of his 
personal liberty. The greater concentration of popula- 
tion in urban communities with the consequent in- 
creased danger to the safety and health of the resident 
inhabitants has made it necessary to subject the 
rights of property and of freedom of action to many 
limitations which under other conditions would not 
have seemed to be desirable. 

The second circumstance which has resulted in the 
extension of this police power is to be found in the dis- 
coveries of preventive medicine. While the change in 
economic conditions which has been noted has seemed 
to make necessary the intervention of the government 
in the interest of the protection of human life, our 
increased knowledge of public hygiene has made intelli- 
gent action possible where before it was hardly to be 
expected. The discovery of the causes of contagion 
and infection, the successful results of vaccination and 
inoculation have all made it desirable to take measures 
of a protective and preventive character which may be 
expected to be followed by great benefit to the public 
health. 

The result has been then in recent years a great ex- 
tension of the police power with the object of securing 
better conditions of living and the incidental increase 
in the efficiency of the social group. This extension of 
the police power has commonly been regarded as 
constitutional notwithstanding the existence in the bills 
of rights of the same provisions which were adopted 
years ago in order to secure to the individual his proper 
sphere of liberty'. It has nevertheless had as an effect 
great curtailment of the sphere of individual freedom 

[23] 



of action and a rather drastic regulation of the conduct 
of Hfe. 

The extent to which this curtailment of individual 
freedom has gone will be understood when we recall 
some of the most notable decisions upon the consti- 
tutionality of action which has been taken. It has 
thus been held to be quite proper from a constitutional 
point of view to provide for compulsory vaccination 
not only against smallpox but also against bubonic 
plague; to provide for isolating even infant children 
with a contagious disease in a contagious diseases 
hospital; to compel the individual owner of property 
to expend considerable sums of money in installing 
new sanitary arrangements in a house which at the 
time it was built and even at the time of the passage 
of the law providing for the installation of such appli- 
ances complied in all respects with the law; without 
compensation to destroy or prohibit the sale of unsani- 
tary or adulterated food products or animals having 
contagious diseases. 

i These cases, which by no means exhaust the list, 
thus recognize as constitutional, action which very 
seriously infringes upon what at one time was un- 
questionably regarded as a right of liberty or property. 
Nevertheless we have recognized the propriety of these 
decisions and have submitted to them, I will not say 
cheerfully, but at any rate without any serious active 
opposition. It seems therefore that we may properly 
conclude that the demands of social efficiency in the 
inew conditions in which we live have had the effect of 
'modifying very considerably the original American 
conception of liberty. 

Drastic laws have been passed also which curtail the 
freedom of the individual in the interest of preventing 

[24] 



the development and spread of practices which are 
regarded as vicious. Most of such legislation has been 
held to be within the constitutional power of either 
the Congress of the United States or of the State legis- 
latures. Thus State laws prohibiting the manufacture/ 
or sale of intoxicating liquors, cigarettes and harmful 
drugs and forbidding the carrying on of lotteries, have 
been upheld, although their indirect effect may have 
been to destroy the value of large amounts of property. 
The action of the National Government in denying the 
right to use the mails, to those engaging in vicious 
practices and in taking from certain prohibited articles, 
such as lottery tickets, the character of objects in which 
interstate commerce may be carried on also has been 
upheld. Indeed it may be said that once the proper 
authority in our system of government has determined 
that a given practice is vicious all the force of the ^ 
government may notwithstanding bills of rights be 
used for its suppression. 

It is, however, very doubtful whether our funda- 
mental ideas have been subject to great modification 
in many directions in which the public health and 
safety or morals have not been directly involved. We* 
have been willing to hold those rights which we are 
inclined still to regard as natural and inherent subject 
to the limitations made necessary by considerations of 
public morality and safety and to a certain extent of 
public convenience which often is closely connected 
with the public safety. But we have not as yet been 
convinced of the desirability of the curtailment of our 
sphere of individual freedom of action in the interest 
of anything so general as social efficiency. We still 
cling to the idea that our rights are more or less natural 
rights and have not been granted to us by the social 

[25] 



group to which we belong. Our legislation, which re- 
flects our political philosophy, does not require of us 
much that elsewhere is regarded as absolutely necessary 
to the development of the highest degree of social 
efficiency. We still cHng to our old individualistic 
philosophy and if by any chance we compare unfavor- 
ably to ourselves the efficiency of some other nation 
with a more highly developed social organization we 
comfort ourselves with the reflection that individualism 
pays in the long run, whatever may be the temporary 
triumphs of more highly socialized political systems. 

Our consoling reflections may be true. I am not 
going to attempt to deny that they are. I must confess, 
however, to some doubts on the subject. Certain 
characteristics of American life can hardly fail to ob- 
trude themselves upon our notice... The lawlessness 
which by many foreign observers is attributed to us as 
a people, and the ineffectiveness of our attempts at 
social cooperation which make many of our municipal 
governments and most of our state governments failures 
as compared with the achievements of more than one 
European people are due in large measure to our belief 
that a private rights philosophy is applicable to the 
conditions of our present life. The effect which such 
a philosophy has had upon our governmental organ- 
ization I shall not dwell on here as I intend to speak 
of that at another time. I do, however, wish briefly 
to call attention to the relation which exists, as it seems 
to me, between our traditional political philosophy and 
the lawlessness to which I have alluded. 

The emphasis which we have laid on private rights 
has contributed in two ways to make us, comparatively 
speaking, a lawless people. In the first place the ex- 
ercise of the power which the courts have to define and 

[26] 



fix the content of private rights through the declaration 
that acts passed by legislatures are unconstitutional 
has caused us as a people to lose respect for the action 
of our legislative bodies and has encouraged those of 
us who have believed that that action has encroached 
on what we have considered to be our rights to resist 
its enforcement through appeals to the courts. Hardly 
a legislative act has been passed within the last twenty 
years by either the United States Congress or by a 
State legislature imposing a new form of taxation or 
a new regulation of the freedom of individual action, 
whose constitutionality has not been attacked in the 
courts. In probably most cases of importance the liti- 
gation has been carried to the Supreme Court of the 
United States with the result that those affected by 
such legislation have for two or three years not known 
whether it was constitutional or not. The uncertainty 
as to what was the law, and the feeling that there was 
a good chance that almost any act of the legislature 
might be declared unconstitutional, have done much 
in my opinion to cause the unthinking among our 
people to regard all law with disrespect. 

I would not, however, have you think that I am of 
the opinion that it would be desirable, with the tradi- 
tions which we have and with our lack of reverence for 
constituted authority, which is due in large measure 
to our individualistic philosophy, to take from the 
courts the power which they now have to declare acts 
of legislation unconstitutional. Such action would, I 
believe, be highly undesirable. We have lived too long 
under our present conditions to permit us with safety 
to transform those conditions hastily. What I am 
essaying to do here is merely to point out what appear 
to be some of the results of the political philosophy 

[27] 



which we as a people have held in the past and which 
even now we would abandon with great reluctance. 
; This emphasis continually laid by all classes of per- 
sons on what they have regarded as their natural rights 
and their consequent failure to recognize that they have 
social duties as well as individual rights have tended 
further to bring about class conflicts. These conflicts 
have become very bitter largely because those who 
have participated in them have often been able to look 
at the issue presented only from the point of view of 
their own rights. The employer acting on the theory 
that he has the right to do what he will with his own 
has failed to see that he is a member of society with 
duties to society. On the other hand the laboring man 
seeing only what he regards as the rights of labor for- 
gets in his turn that it is only as all members of society 
work together for the common good, that that society 
can become efficient with the result that its economic 
product may increase to the common benefit of all. 

Of recent years, however, a change is noticeable in 
our attitude towards these matters. Just as our courts 
have through their decisions with regard to the police 
power brought about a very different conception as to 
the actual content of particular private rights, so our 
legislation has lately been actuated by ideas very dif- 
ferent from those which appealed to our forefathers or 
^ven to our fathers. 

The first change in ideas which is noticeable was 
/ made in the class of activities which are often spoken 
of generically as "public utilities." On the theory that 
the public interest was peculiarly concerned in those 
cases because the enterprises in question were based 
on public privileges, the conception of regulation in 
the public interest came finally to be held. Not only 

[28] 



IS no constitutional question any more raised as to the 
power of the competent organ of our government to 
take the necessary regulatory measures but public 
opinion justifies regulation of so drastic a character 
that it would hardly have been deemed possible even 
a quarter of a century ago. At the present time public 
utility enterprises are helpless in the face of government 
action from the point of view of constitutional pro- 
tection as well as from that of public opinion. 

The regulation which in the case of public utilities 
was justified on the theory that the enterprise was 
based upon a privilege has since been extended to 
enterprises which in no sense owe their existence to 
the possession of such privileges. The justification for 
the regulation is found in the mere fact that the public 
interest is involved. Instances of such action are to be 
found in the anti-trust legislation which has become 
so common and in the well-nigh universal legislation 
passed to improve labor conditions. Workingmen's 
compensation acts, employer's liability and minimum 
wage laws, compulsory conciliation acts, increase of 
school opportunities for both the young and the old, 
paid for out of the proceeds of taxation, all testify to 
the fact that the private rights philosophy of a century 
ago no longer makes the appeal that it once did. 

We no longer believe as we once believed that a good 
social organization can be secured merely through 
stressing our rights. The emphasis is being laid more 
and more on social iduties. The efficiency of the social 
group is taking on in our eyes a greater importance 
than it once had. We are not, it is true, taking the 
view that the individual man lives for the state of 
which he is a member and that state efficiency is in 
some mysterious way an admirable end in and of itself. 

[29] 



But we have come to the conclusion that man under 
modern conditions is primarily a member of society 
and that only as he recognizes his duties as a member 
of society can he secure the greatest opportunities as 
an individual. While we do not regard society as an 
end in itself we do consider it as one of the most im- 
portant means through which man may come into his 
own. 

"* You are probably asking yourselves: What is the 
purpose of saying these things in this place? What 
connection have they with a great educational institu- 
tion? My answer to these questions is this. Those 
who are in charge of such an institution are under a 
very solemn obligation. They are in some measure at 
any rate responsible for the beliefs of the coming gen- 
eration of thinkers and of moulders of public opinion. 
We teachers perhaps take ourselves too seriously at 
times. That I am willing to admit. We may not have 
nearly the influence which we think we have. Changes 
in economic conditions for which we are in no way 
responsible bring in their train regardless of what we 
teach changes in beliefs and opinions. But if we are 
unable to exercise great influence in the institution of 
positive changes, we can by acquainting ourselves with 
the changes in conditions and by endeavoring to ac- 
commodate our teaching to those changes, certainly 
refrain from impeding progress. This may be an over- 
modest estimate of the function of a teacher. At the 
same time it is an ideal the realization of which is not 
to be despised. For many universities have in the past 
been the homes of conservatism. New ideas have 
often knocked for a long time on the gates of learning 
before they have been permitted to enter. Even after 
they have passed the portal they are sometimes the 

[30] 



object of a suspicion which it has taken years to allay. 
So I repeat we teachers are in a measure responsible 
for the thoughts of the coming generation. This being 
the case, if under the conditions of modern life it is 
the social group rather than the individual which is 
increasing in importance, if it is true that greater 
emphasis should be laid on social duties and less on 
individual rights, it is the duty of the University to 
call the attention of the student to this fact and it is 
the duty of the student when he goes out into the 
world to do what in him lies to bring this truth home 
to his fellows. 



[31] 



THE AMERICAN 



CONCEPTION OF GOVERNMENT 



THE AMERICAN 
CONCEPTION OF GOVERNMENT 



THE last time I had the honor of speaking to you, 
I called your attention to the fact that the Ameri- 
can conception of liberty had been profoundly in- 
fluenced by the Natural Rights Philosophy, which was 
so generally accepted at the end of the eighteenth 
century. Now, as liberty is the converse of govern- 
ment, this natural rights philosophy in so far as it 
fixed a sphere of liberty at the same time defined the 
limits of government. In so far as it provided for a 
realm of individual freedom of action it determined 
the content of government activity, and thus laid the 
basis for a theory with regard to public functions. 
The limitations which it imposed upon government 
resulted in the adoption of a policy of non-intervention 
usually spoken of as laissei-fairej which for a long time 
was controlling. 

This natural rights philosophy, however, exercised 
a much greater influence. It not only furnished us 
a theory of governmental activity. It also contributed 
greatly to our ideas of governmental organization. For 
a governmental organization is almost always formed 
with the idea of providing a means for the discharge of 
those functions and of entering upon those activities 
which the prevailing thought of the time deems it 
desirable to perform and to undertake. 

The point in which the political philosophy of the 
eighteenth century influenced our governmental or- 
ganization to which I wish first to call your attention 
is the matter of sovereignty. I shall not attempt to 

[35] 



define or even to describe sovereignty, except to say 
that what I mean by it in this connection is the power 
in ultimate and final instance to determine how the 
government shall be organized and what it shall do. 
That power in the United States has been from the 
latter days of the eighteenth century vested in the 
people. The people to whom this power has been 
entrusted have not, it is true, been constituted in the 
same way during all of our history. Until recently, 
only those of the male sex have theoretically possessed 
it. For a considerable time in our history only persons 
of the male sex who owned a certain amount of property 
were regarded as constituting the soverign people. In 
many parts of the country it is even now only the 
members of the white race who from the point of view 
of actual fact possess this power. But, however the 
constituent elements of the sovereign people have 
varied, the fact still remains that this power has not 
since the end of the eighteenth century been regarded 
as residing anywhere but in the people. 

Now, this conception of popular sovereignty was 
one of the necessary prerequisites of the Social Con- 
ftract Natural Rights Theory. The fact that individuals 
I had natural rights of which they might not be deprived 
! established the people as sovereign, and made it pos- 
sible for the contract to be made upon which all 
government was supposed to be based. Such a con- 
tract had, as was said in the former lecture, no histor- 
ical basis. But the social contract theory had just as 
much justification as the theory of the divine right of 
kings to oppose which it was propounded. And as 
the theory of the divine right of kings had as its con- 
sequence the doctrine of monarchical sovereignty, so 
the social contract theory had for its foundation the 

[36] 



idea of popular sovereignty. The fact that neither 
theory is true does not permit us to deny that under 
the influence of the one the final\power was as a matter 
of fact in a monarch, and that u^der the influence of 
the other that power is in the peopl^^Vt • " ' 

The acceptance of the theory that this power is 
vested in the people has had a tremendous influence 
upon our governmental organization. The people who 
are sovereign cannot in the nature of things, where they 
are scattered over a wide area, act at frequent intervals. 
Now and then they can come together and express 
their will. This they can do through the adoption of 
a written constitution, which is drawn up and sub- 
mitted to them by representatives of their choice. It 
may, therefore, be said that a written constitution, or 
a body of universally accepted usage in accordance 
with which important questions are submitted to the 
people, is a necessary consequence of the acceptance 
of the theory of popular sovereignty. 

In this country the written constitution has every- 
where become the accepted method for the expression 
of the popular will. The constitutional conventions 
which are almost every year meeting in one or more of 
our States, the submission of the constitutions drafted 
by those conventions, and of amendments to those 
constitutions, upon which the people are being con- 
tinually called to vote, are all due to our acceptance of 
this theory of popular sovereignty. In a word, all the 
organization and paraphernalia of constitution-making 
and amendment we have to provide, because of our 
acceptance of the proposition that the people are 
sovereign. 

There would appear to be no sign that the theory of 
popular sovereignty is losing its hold upon the American 



[37] 



people. Indeed, there are indications that its hold is 
increasing rather than diminishing. The direct action 
of the people upon the government is continuously 
becoming of greater importance. Amendments to writ- 
ten constitutions are becoming more and more frequent. 

We may say, then, with safety that the theory of 
popular sovereignty which was one of the incidents of 
the Social Contract Natural Rights theory has from 
the beginning of our history as an independent people 
had a controlling influence on our governmental or- 
ganization. At the present time it has probably a 
greater influence than it ever had. Greater and greater 
numbers of persons are regarded as constituting the 
sovereign people. More and more frequently as time 
goes on is that sovereign being called upon to express 
its will. The only instances in which any signs of 
reaction are to be noticed are where questions of color 
have been raised. For good or for evil the country is 
and shows every sign of remaining a 'Vhite man*s 
country.*' 

This increase in the influence of the doctrine of 
popular sovereignty has gone on notwithstanding or 
perhaps because of the change in economic conditions 
to which your attention has been called . 

Those classes of the people who have deemed them- 
selves to be most unfavorably affected by economic 
change have apparently regarded representative gov- 
ernment with increasing distrust and have, therefore, 
demanded with increasing insistence that the people 
should act directly in the determination of questions 
of policy through the adoption of constitutional amend- 
ments. This direct popular action finally has been 
possible because of improvement in the means of 
communication and because of the spread of popular 

[38] 



education which has facilitated intelHgent popular 
action. 

I have already called your attention to the fact that 
the historic English method of securing what English- 
men thought were their rights was the admission of 
more and more of the people to participation in the 
control of government. This was a practical measure 
which Englishmen had endeavored to apply to their 
political institutions before the propounding of any 
theory of popular sovereignty. As a result of it, 
England in the eighteenth century became a self-gov- 
erning community in a sense quite different from other 
European countries. 

English traditions of self-government were a part 
of the heritage which America received from the mother 
country. The conditions in America, therefore, fa- 
vored the adoption of the general theory of popular 
sovereignty when it was propounded at the end of the 
eighteenth century. The Americans were, however, a 
practical people. While they apparently accepted the 
theory of popular sovereignty with enthusiasm, they did 
not at first permit it to influence seriously the details 
of their governmental organization. They preferred 
to follow the precedents of the past with which they 
were acquainted to establishing a new political system 
organized in accordance with the dictates of a newly 
propounded political theory. 

• All that the acceptance of the new theory of popular j 
sovereignty accomplished was the provision of a founda- 1 
tion of theory on which the general governmental! 
organization might rest.f~So far as concerns the details 
of that organization, the governments of the former 
North American colonies were taken as a model. These, 
it is well to remember, had been in their turn modelled 

[39] W 



u 



pretty closely on the governmental organization of 
Great Britain. 

The new state governments which were established 
at about the time of the declaration of independence of 
this country made provision, therefore, for a Governor 
or President, who occupied a position similar to that 
occupied by the Governor of colonial days, with the 
exception that he owed his selection not to the Crown, 
but to the people; second, for a bicameral legislature 
almost identical, so far as concerns its organization 
and powers, with its colonial predecessors; and third, 
for a judicial department also organized upon the lines 
of the former colonial judiciary. 

There was one point, however, in which the influence 
of theory is evident. Certain developments in the 
constitutional history of England just before the colo- 
nization of this country had brought about definite 
concrete results relative to the position and powers 
of the various governmental authorities. Thus, Par- 
liament had secured through the adoption of various 
devices a position which was in large measure inde- 
pendent of the Crown. The Act of Settlement passed 
in 1701 had assured to the judiciary a similar position. 

Further, the practice of the English government was 
such that the concurrence of at least two governmental 
authorities which were comparatively speaking inde- 
pendent of each other was necessary for almost every 
governmental act of importance. Thus, no law could 
be passed except as the result of the concurrent action 
of the two houses of which Parliament consisted. 
Parliament itself passed laws but did not enforce them. 
The enforcement of laws was entrusted to officers of 
the Crown, who because of their local position were in 
large measure independent of royal control. The officers 

[40] 



of the Crown who enforced the law finally could not 
interpret it in case there was doubt as to its meaning. 
The final interpretation of the law was entrusted to 
the courts. 

Our forefathers, basing themselves upon these cus- 
toms and usages, elaborated two theories of govern- 
ment which they attempted consciously to apply to 
the new political organizations they were establishing. 
These were the theories of the separation of powers 
and of checks and balances. We find the early state 
constitutions all actually based upon these theories and 
more than one expressly stating that such was the fact. 

The reason why these theories were so acceptable in 
those days is the same which we found responsible for 
popular sovereignty. It was the fear that government 
might in some way deprive men of the natural rights 
with which it was believed they were endowed. Liberty 
at that time was regarded as supremely desirable. The 
one thing to be guarded against was tyranny. It was 
the fear of the tyranny of society exercised through 
the imposition of restrictions on individual initiative 
which led to the promulgation of the economic doc- 
trine of non-interference to which I have called your 
attention. It was the fear of political tyranny through 
which liberty might be lost which led to the adoption 
of the theories of checks and balances and of the sep- 
aration of powers. As some of the State constitutions 
expressly stated, these principles were adopted in order 
that the government to be established might be a 
government of laws and not of men. What was sought 
was thus the rule of law which had been almost from 
time immemorial the aim of the English in their polit- 
ical institutions. 

[41] 



The workings of the leaven of popular sovereignty 
•.. upon the details of our governmental organization soon, 
however, became evident. The first sign was the ex- 
tension of the suffrage. Originally, only those who had 
a certain amount of property were permitted to vote. 
Soon after the opening of the nineteenth century, how- 
ever, the qualifications for voting were so changed as 
to permit every adult male of sound mind to cast a 
vote. Recent action has in more than one instance 
extended the suffrage to women also. 

The next change that was made was made in the 
political organization of the separate States. Change 
in the formal organization of the National Government 
was difficult if not impossible because of the procedure 
necessary for the amendment of the United States 
Constitution. This document was the consequence of 
a temporary conservative reaction which followed upon 
the extreme radicalism incident to the struggle for 
national independence. Those who were successful in 
securing its adoption were not inclined to trust to the 
wisdom or discretion of the people. They, therefore, 
both provided a governmental organization which was 
not immediately responsive to popular opinion and 
devised a method of constitutional amendment which 
was so difficult of application that change except in 
details, the desirability of which was amost universally 
recognized, was practically impossible. The result was 
in the case of the National Government that the move- 
ment in favor of popular political control was without 
effect except in one respect, which, however, was an 
important one. This was the method of electing the 
President. The device of a presidential electoral col- 
lege had been adopted in order among other things to 
make impossible the popular election of a President. 

[42] 



The people of the country were able, however, through 
extra-constitutional methods to obtain what was prac- 
tically a popular presidential election. The organiza- 
tion of national political parties and presidential 
nominating conventions reduced the electoral college 
to a position of unimportance and enabled the people! 
of the country to choose the President notwithstanding 
the provisions of the United States Constitution. 

The State constitutions, however, were not so diffi- 
cult of amendment, and did not, therefore, oppose an 
insurmountable barrier to political change. In the first 
quarter of the nineteenth century the change began. 
So far as concerns the central governments of the States 
the changes adopted resulted in giving to the voters of 
the State the right to elect most important State 
officers. 

The local governments throughout the States also 
were affected by the same influences. In the county 
governments, for example, it is frequently the case 
that the various county officers, such as district at- 
torney, members of the school board, county treasurer, 
registrar of deeds, and so on, are elected by the voters 
of the county. Usually the officers elected both for 
the State at large and for the local districts are elected 
for short terms in order to subject them more com- 
pletely to popular control. 

This movement in favor of the popular election of 
officers reached its apogee about the middle of the 
nineteenth century, when it affected seriously the or- 
ganization of the cities. In some of the city charters 
which were adopted about 1850, we find provision made 
for the election by the city voters of almost all import- 
ant city officers. 

[43] 



In very recent years the attempt has been made in 
a few States and cities to make the popular control 
permanent instead of periodic, as had been the case. 
The desired result has been sought by the adoption of 
what has been termed the '^recall." In accordance 
with this scheme for permanent popular control over 
officers the voters are permitted at any time to recall 
an officer and replace him by one more acceptable to 
them. The recall has been combined with a fixed 
term, — usually a short one — at the end of which a new 
election must be had. Up to the present time, the 
power to recall has for the most part been confined to 
local officers. 

The movement for the popular election of local 
officers has been accompanied by the provision either 
in the State constitution or laws that certain questions 
of policy also shall be decided by a popular vote. The 
questions usually thus submitted to the people have 
had to do with the sale of liquor, the incurring of debt, 
and the grant of franchises. In its original form, this 
popular determination of questions of policy is found 
in the New England town meeting where every im- 
portant question of local policy has from almost the 
beginning of our history been decided at a public meet- 
ing of the voters of the town after a full and free dis- 
cussion. In its latest form it is known as the referendum 
and initiative and has been adopted both in the case of 
city charters and of matters of State concern. Its use 
is much less frequent in the case of State than in that 
of local matters. It is, however, to be remembered 
that the growing size and comprehensiveness of State 
constitutions and their more frequent amendment calls 
for greater and greater participation upon the part of 

[44] 



the people in the determination of matters of State 
policy. 

The increase in the number of voters as well as the 
wider participation of the voters in the operations of 
government due to the greater number of elective 
officers and to the adoption of the initiative, referendum 
and recall have made necessary a very elaborate or- 
ganization for the registration of the voters and the 
receipt and counting of the vote. Probably in no other 
country in the world is there such an elaborate election 
law as is to be found in most American States. The 
elaborate, comprehensive and technical character of 
this law has been greatly increased during the past 
twenty-five years, because it has been extended as well 
to the operations necessary for the nomination of party 
candidates. The party primaries of the present day 
have as a result of the desire of the people to control 
them as well as public elections become a part of the 
political organization made necessary by the accept- 
ance of the doctrines of the sovereignty of the people 
and of popular participation in the operations of gov- 
ernment. 

Our governmental organization developed at a time 
when expert service could not be obtained, when the 
expert as we now understand him did not exist. The 
days which saw the establishment of our political 
system were days of great economic simplicity. There 
was little division of labor, and almost no special- 
ization. The things that were done were done for the 
most part according to rule-of-thumb methods. Men 
were able and were accustomed to turn as necessity 
required from one occupation to another, and to per- 
form with reasonable success the tasks demanded by 
the primitive conditions of the time. There were 

[45] 



hardly any learned professions apart from the clergy, 
from whom in some of the religious denominations, a 
modicum of education was required. On the one hand 
the lawyer, and on the other, the physician was ex- 
pected to fit himself for his future work in much the 
same way in which one who expected to become a 
skilled workman acquired the knowledge of the trade 
he was to follow. That is, he entered the office of a 
practitioner, and both by practical work and by study 
under the guidance of his patron did what was necessary 
to prepare himself for the not very serious tests to 
which he must submit before he could enter upon the 
practice of his so-called learned profession. Apart from 
the lawyer and the physician, it may be said that there 
were no occupations for which even a moderate the- 
oretical training was required. 

Under these conditions it is no wonder that the need 
of expert service in the government was not felt. The 
operations of government were very simple both be- 
cause of the primitive social and economic conditions, 
and because public opinion did not approve of an 
extensive sphere of governmental activity. When we 
take into account on the one hand the environment in 
which men lived in this country prior to the middle of 
the nineteenth century, and on the other hand the 
prevailing political philosophy with its emphasis on 
individual liberty, and popular sovereignty, and its 
abhorrence of a permanent governing class, we can 
well understand the development of the idea which 
was so commonly held that rotation in office wis a 
cardinal doctrine of American government. Freqdent 
change in offiicals, for the most part elected by the 
people, subjected the government to a periodic pop- 
ular control, and prevented the development of a 

[46] 



permanent governing class which might act tyranni- 
cally. Apparently, little thought was given to the 
question whether the government was efficient. What 
was desired was not so much efficiency as liberty. 

The governmental system based on such principles 
was necessarily not efficient. Its inefficiency was 
probably, however, not so great or at any rate the 
results of its inefficiency were not so noticeable as one 
might at first suppose. The times were times of great 
simplicity, the sphere of government was very narrow, 
great reliance being placed on individual initiative, and 
the expert had not as yet developed partly at any rate 
because he was not believed to be needed. 

As, however, the conditions of American life became 
more complex, as greater demand was made for social 
cooperation, as our educational system began to be 
changed in such a way as to give more attention to the 
application of scientific methods to the conduct of the 
ordinary affairs of life, the American conception of 
government began to change. 

The complexity of American life was increased largely 
because of the development of transportation facilities 
due to the building of railways, the digging of canals, 
and the improvement of water ways. This progress in 
the means of communication had for its immediate 
effect the building up of cities. Industrial life also 
began at about the same time to replace, or at any 
rate to rival, the agricultural life which had been the 
distinctive characteristic of this country. 

The larger undertakings which were consequent upon 
the greater development of commerce and industry, and 
the growth of an urban population with an incidental 
extension of governmental activity, called for a higher 
degree of social cooperation than was required for 

[47] 



agricultural life in rural districts, and demanded a 
greater amount of expert service. 

Our system of education was for a long time not de- 
vised for the purpose of producing the expert. It had 
not outgrown the influences of scholasticism and the 
Renaissance. Professor Tyler, of Amherst, tells us for 
example what was the college course of about 1830. 
He says : 

''Greek, latin and mathematics six times a week, 
with a little natural philosophy at the end, and perhaps 
a little rhetoric and logic in the middle was the cur- 
riculum for the first three years, and mental and moral 
philosophy with a sprinkHng of theology and political 
economy was the course for the fourth year." 

One of the first, if not the first, of the attempts made 
in this country to modify our educational system in 
such a way as to provide systematic training for more 
of the pursuits of life was made by Thomas Jefferson 
when he founded the University of Virginia. Jefferson *s 
plans were not immediately successful. The conserva- 
tive educational tradition was too strong for him, as it 
is for most educational reformers. The intellectual 
aristocrats of the day who regarded learning as not for 
the masses were able to hold their own, and Jefferson 
died a disappointed man, certainly so far as concerns 
his plans for educational reform. 

President Wayland of this University made probably 
the next serious attack on the existing educational 
system. This he did in his remarkable report of 1850. 
He said, referring to the needs of the country at the 
time: "Lands were to be surveyed, roads to be con- 
structed, ships to be built and navigated, soils of every 
kind and under every variety of climate were to be 
cultivated, manufactories were to be established, which 

[48] 



must soon come into competition with those of more 
advanced nations, and in a word all the means which 
science has provided to aid the progress of civilization 
must be employed, if this youthful republic would 
place itself abreast of the empires of Europe. What,*' 
he asked, "could Virgil and Horace and Homer and 
Demosthenes, with a little mathematics and natural 
philosophy do toward developing the untold resources 
of this continent?" 

The middle of the nineteenth century indeed was, 
apparently a period of ferment in the higher educational 
world. In 1856 thus the first Agricultural College in 
the country, and if I am not mistaken, in the world, 
was established by the gentlemen farmers of southern 
Maryland. The act of the State legislature incorporat- 
ing the Maryland Agricultural College declared that 
the institution should, "in addition to the usual course 
of scholastic training, particularly indoctrinate the 
youth of Maryland, theoretically and practically, in 
those arts and sciences which with good manners and 
morals shall enable them to subdue the earth.'* 

In 1862 the United States Congress provided for the 
endowment in each State of "one college where the 
leading object shall be, without excluding other sci- 
entific and classical studies, and including military 
tactics, to teach such branches of learning as are re- 
lated to agriculture and the mechanic arts — in order to 
promote the liberal and practical education of the in- 
dustrial classes in the several pursuits and professions 
of life." 

One of the principal characteristics of President Way- 
land's plan was, to use his own words, that "every 
student might study what he chose, all that he chose, 
and nothing but what he chose," a principle that the 

[49] 



average undergraduate of the present day would prob- 
ably accept without serious objection. In other words, 
Dr. Wayland advocated among other things, what has 
since come to be known as the elective system. This 
system with modifications has been introduced almost 
everywhere and has had great influence in opening the 
door to something in the nature of a training for the 
expert. 

One of the results of this movement is that both in 
and out of the universities there are at the present time 
schools which endeavor to fit men for occupations, en- 
trance to which was at one time secured merely as the 
result of practical experience. Schools of Law, Medi- 
cine, Engineering, Dentistry, Pharmacy, Education, 
Agriculture, Architecture, Journahsm, Business Ad- 
ministration and Domestic Science, not to mention 
others, are rapidly transforming what were once re- 
garded as trades into learned professions; i. e., profes- 
sions entrance to which follows a systematic education. 

We have thus begun in the United States the educa- 
tion of the expert in the conduct of the ordinary affairs 
of life, matters some of which were at one time not 
regarded as worthy of the attention of the so-called 
scholar. If your great President Wayland were alive 
now, he could congratulate himself that his dream has 
all but been realized in modern American education. 
I say "all but" advisedly. For we have by no means 
as yet done what needs to be done in order that we may 
have expert service along all the lines in which the 
expert is needed. Nor have we made the progress 
which has been made in some other countries, of which 
Germany is an example. The tremendous industrial, 
commercial, political and social progress which Ger- 
many has made within the experience of living men has 

[50] 



been in no small measure due to her ability to educate 
and employ experts in the various lines in which her 
progress has been so marked. But we in America have 
already taken long steps on the path marked out by 
your great president, and there is every indication that 
our progress will be more rapid in the future than it 
has been in the past. 

The increasing complexity of our American life, the 
higher degree of social cooperation made necessary by 
the larger enterprises which had to be undertaken, the 
extension of the activities of government and the edu- 
cation of the expert have all of course reacted on each 
other. But whatever may have been their mutual 
reactions they have all at the same time contributed 
to the modification of the original American conception 
of government. Whereas, at one time American gov- 
ernment was organized primarily, if not exclusively, 
for the purpose of securing liberty, it is now organized 
secondarily at any rate in order to Secure social effi- 
ciency. 

It would, of course, be impossible in the time at our 
disposal to attempt any detailed history of the changes 
in the organization of American government which have 
been made within the last three quarters of a century, 
with the purpose of securing greater efficiency. I may 
perhaps be permitted, however, to call attention to 
two or three of the most important. 

The first of these changes is to be found in our 
municipal organization. The effect upon the American 
system of city government of the adoption and appli- 
cation of the principle of popular sovereignty was the 
disintegration of the originally rather compact munici- 
pal organization which we inherited from England. 
This system centered all powers, roughly speaking, in 

[51] 



a council elected by a rather narrow body of municipal 
voters. The widening of the suffrage to which your 
attention has been directed was accompanied by a 
modification of the city organization in such a way as 
to subject almost every important part of it to direct 
popular control to be exercised at the city elections. 
Probably the highest point in this movement was 
reached about 1850. If you take the charter of the 
City of New York adopted in 1849 you will find that 
in addition to the members of the council, the Mayor, 
almost all the heads of the city departments, and the 
members of the city judiciary, were elected by the 
people. Even now, although the force of the popular 
movement is well nigh spent, you still find in most 
city charters which are not of recent date a number of 
officers besides the Mayor, who owe their offices to 
popular election. 

Since the middle of the nineteenth century, however, 
the tendency has been away from the unconcentrated 
organization which has been noted and is at the present 
time towards a system which lays much greater em- 
phasis on the necessity of securing administrative 
efficiency. For a time resort was had to a system of 
boards the terms of whose members did not all expire 
at the same time. The purpose of the arrangement 
was to secure greater permanence of tenure and greater 
continuity of policy, both of which were believed to 
secure efficiency, although it was evident that such a 
system diminished popular control. Indeed, popular 
control was so difficult of exercise that later the board 
system was abandoned and resort was had to what has 
come to be known as the ''Mayor system" which, as 
its name would indicate, centered the control and 
responsibility for the city government in a Mayor 

[52] 



who was almost the sole administrative officer elected 
by the people. 

Most American charters prior to 1900 showed traces 
of the influences of all these different systems. In 
almost every city there was some executive officer be- 
sides the Mayor who was elected by the people, there 
were usually a board or two like the School or Health 
Board, organized on the regular board plan, while the 
Mayor almost everywhere was gaining in power. The 
Council on the other hand almost everywhere was 
losing in importance and had almost touched the van- 
ishing point in those cities which had adopted a budget 
system in accordance with which the estimates for city 
appropriations proposed by the executive officers could 
not be increased by the Council. 

In 1900 the next important step in the direction of 
securing greater municipal efficiency was taken. This 
was the date of the adoption of the Commission sys- 
tem by the City of Galveston. The great Galveston 
flood of 1900 turned out to be a blessing to American 
municipal government, although this blessing must 
have appeared to the citizens of Galveston to have 
come to them under an almost impenetrable disguise. 
Galveston was as a result of former misgovernment 
and of the flood in a condition of such dire distress 
that she had to become efficient if she were to continue 
to exist. She, therefore, adopted this Commission 
system as it has come to be called. The characteristics 
of this system were the limitation of popular participa- 
tion in the government and the concentration of all 
powers legislative as well as executive in a commission 
of five men, only three of whom were elected, the rest 
being appointed by the Governor of the State. Later all 
five were made elective, and the elective form has be- 

[53] 



come the prevailing form, and is probably the most 
widely diffused well defined type of city government 
which we now have in the United States. 

The most recent move in the direction of municipal 
efficiency is to be found in the provision of what is 
known as the "city business manager." Quite a num- 
ber of cities have already made provision for such an 
officer. The fundamental aim of this form of city 
government is municipal efficiency. The favor which 
it has secured emphasizes the point which I have en- 
deavored to make, viz. : That the present trend of city 
organization is in the direction of efficiency, and that 
as a result popular participation in municipal govern- 
ment is diminishing rather than increasing. The only 
point in which the old idea of popular sovereignty 
would seem to be holding its own is the determination 
of municipal policy. The initiative and referendum 
which are often associated with the Commission form 
of city government give to the people powers to deter- 
mine directly the sphere of municipal activity which 
they have not possessed until comparatively recently. 

The second example of the modification of the orig- 
inal American conception of government through the 
emphasis of the idea of efficiency is to be found in the 
organization of a civil service with a reasonably per- 
manent tenure, the members of which are selected 
because of merit and fitness. 

We are apt to associate this movement with what is 
usually spoken of as Civil Service Reform. As a mat- 
ter of fact, however, there were long before the Civil 
Service Reform movement was inaugurated evidences 
of this desire to secure efficiency through the establish- 
ment of a professional civil service which might offer 
a career to those who entered it. Probably the first 

[54] 



branch of the public service which was affected by it 
was the educational service. From quite an early time 
in our history, the attempt has been made to secure 
competent teachers in the public schools by means of 
some method of examination, the passing of which was 
rewarded by a certificate. It was only natural that 
the movement for efficiency should begin in connection 
with the schools. For the schools have been the one 
part of our administrative system which we have al- 
most from the beginning attempted to protect against 
the influences of partisan politics, the form which an 
unlimited popular control seems usually to assume. 
With this idea in mind, we have often given to our 
school administration a particular organization inde- 
pendent of our regular governmental authorities in the 
hope that we might protect our schools from the evils 
which are incident to our partisan political system. 

The movement for securing more efficient teaching in 
our public schools was accompanied by the assumption 
on the part of the State and in a number of instances of 
the cities as well of some measure of responsibility for 
the education of teachers. This was done through the 
establishment of the Normal Schools and Colleges and 
Training Schools for Teachers, which have become at 
the present time almost everywhere a part of our pub- 
lic educational system. 

Again the purely administrative side of our school 
system has been in almost all States completely re- 
organized under central authorities like Boards and 
Superintendents of Education, whose duty it is to 
supervise the actions of the local school authorities 
with the object of securing greater efficiency. 

Some time after the attempt was thus made to 
obtain more efficient teachers in the public schools, 

[55] 



a similar movement began in the case of the police 
administration in most of our larger cities. The great 
growth of our urban population and the phenomenal 
development of particular cities made necessary a com- 
plete reorganization of the existing system for the 
preservation of the peace. Naturally, the movement 
took shape first in the largest cities like New York and 
Philadelphia. By the middle of the nineteenth century, 
it had resulted in the establishment, after the English 
model, which was adopted for London only in 1829, 
of a professional uniformed reasonably permanent po- 
lice force organized in quasi-military fashion. That 
the change has resulted in greatly increased efficiency 
can not be doubted. That American police forces 
leave much to be desired is also true. The proper 
organization and management of city police forces in 
the United States are as yet unsolved problems. At 
the same time it is certain that the primary end of the 
various police reforms which are proposed is greater 
efficiency in the discharge of police duties, that is the 
prevention of crime and the enforcement of the law. 

Other branches of city administration, such as the 
fire department and the public health service, as they 
developed were subjected to the same influences quite 
a while before the general movement for Civil Service 
Reform was inaugurated. 

It is customary to assign 1870, the date of President 
Grant's message to Congress, as the year in which Civil 
Service Reform began in this country. A study of the 
history of Congressional legislation upon the general 
subject of administrative efficiency will show, however, 
that Congress had for some time been aware of the 
inefficiency of the service, and had made several at- 
tempts to remedy it. The most notable was an Act 

[56] 



passed about 1855, which provided examinations for ^ 
entrance into the service at Washington. Furthermore, 
both the miHtary services and one or two of the civil 
services of the Federal Government, like the Coast 
Survey and the Marine Hospital Service, have from 
almost the beginning of their history been organized 
in such a way as to secure, comparatively speaking, a 
high degree of efficiency. 

But President Grant's message in 1870 had the effect 
of causing the idea of appointment for merit to be 
applied very much more generally throughout the 
Federal Government. Indeed, with the exception of 
a period of nine years, from 1874, when Congress re- 
fused to make an appropriation for the Civil Service 
Commission, to 1883, when the present law was passed, 
the progress of the movement has been very rapid. 
The merit system has not only been adopted in prac- 
tically all branches of the Federal administrative ser- 
vice. It has also spread to a number of the States, 
and been incoi;porated into the charters of a much 
greater number of cities. 

In both the Federal Government, and particularly 
in the State governments, there is still great room for 
progress. The idea of permanent professional service 
has not as yet been applied to many of the higher 
positions, even in the Federal Government, while in 
many of the States the lower positions are still the 
spoils of partisan politics. Until a change is made in 
these respects it is almost useless to expect that men of 
ability and ambition will seek to make of the Civil 
Service a career. While the Federal Government has 
established educational institutions for the training of 
those who enter its military services, neither it nor 
any State government has done anything of moment 

[57] 



for the education of its civil servants apart from the 
teachers in the pubHc schools. The success which the 
government academies at West Point and Annapolis 
have had in improving the character of the officers in 
our army and navy would seem to present a strong 
argument either for the establishment of similar gov- 
ernment institutions for the Civil Service or for the 
grant of encouragement to the privately or State man- 
aged educational institutions to develop courses or de- 
partments for the training of aspirants for civil offices. 

At the same time, while recognizing to the full our 
failure to secure that measure of efficiency in our gov- 
ernment service which must be secured if as a nation we 
are to take the place in the world which it would almost 
seem from recent events is to be thrust upon us, it can 
not be denied that we are endeavoring, and it would 
seem with no small measure of success, to make ad- 
ministrative efficiency an important aim of our gov- 
ernmental organization. 

The only other matter to which the time at our dis- 
posal permits me to direct your attention has to do 
particularly with the administration of our public 
finances. For various reasons, our general govern- 
mental system was soon after its establishment organ- 
ized on the theory that the initiation and determination 
of questions of policy were to be made by the legislative 
authority, and that the executive was to be confined to 
the execution of policies adopted as a result of legis- 
lative action. The only influence which by American 
Constitutions was accorded to the executive over the 
determination of questions of policy was to be exerted 
through the exercise of a limited veto power, and 
through the sending of messages to the legislatures 

[58] 



which they might or might not as they saw fit, seriously 
consider. 

From the point of view of efficiency, this was an un- 
fortunate arrangement. A great many questions of 
policy, particularly those which have to do with gov- 
ernmental activities, cannot be intelligently initiated 
by those who have had no administrative experience. 
Questions of merely legislative policy, further, are 
usually at the same time party issues with regard to 
which the Executive, as a party leader, should exercise 
a large if not controlling influence. These considera- 
tions have led naturally to a change in the actual posi- 
tion occupied on the one hand by the legislature and 
on the other hand by the Executive, the original theory 
of our government to the contrary notwithstanding. 
Gradually, the Executive has been exercising a greater 
and greater influence over the determination of legis- 
lative policy. He cannot as yet in all cases force the 
adoption of his positive views, but practically no policy 
of which he seriously disapproves has any serious chance 
of adoption. The result of this development has been 
greater legislative efficiency, a clarifying of political 
issues and in general a greater effectiveness in gov- 
ernmental action. 

In one respect, however, progress has been impossible. 
This is in our financial administration. Inadequate 
provision has been as yet made for placing before the 
legislature a complete picture of the financial condi- 
tions of the government. When it has been called 
upon to make appropriations for the purposes of gov- 
ernment, it has not always been known either how much 
money it would be called upon to spend, or how much 
money was at its disposal. In the National Govern- 
ment, these conditions have not ordinarily had serious 

[59] 



results inasmuch as the revenues have been based upon 
a social rather than a fiscal policy, and have often been 
more than amply sufficient for the needs of the gov- 
ernment. Extravagance was of course the result, but 
the expenditures were not so great as ordinarily to pro- 
duce a deficit. In very recent years in the case of the 
National Government, and for quite a time in the case 
of a number of the State governments, and of most of 
the city governments, expenditures have under this 
method been increasing out of all proportion to the 
ordinary increase in the revenue. Deficits have not 
infrequently resulted which have been provided for 
by borrowing money. In many instances the methods 
of American public finance have had for their result 
the payment of the current expenses of government 
by mortgaging the future, certainly an inefficient 
method of treatment. 

The first serious attempt to change these conditions 
was made in the cities where the change was most 
needed. The remedy provided was the introduction 
of what has been called the budget system. The 
characteristics of this system were : 

1st. The presentation before the beginning of each 
fiscal period of a complete plan of all proposed financial 
operations of that year, including estimates of expendi- 
tures and revenue ; 

2d. The revision by a body representing the city as 
a whole of the estimates of expenditure made by those 
in charge of particular governmental activities; 

3d. The submission of the estimates so revised to 
the legislative body of the city, which, after the English 
plan, was sometimes permitted only to reduce or strike 
out, but not to increase items of proposed appropria- 
tions. 

' [60] 



This plan has worked so successfully in the case of 
cities, if not in actually reducing expenditures, certainly 
in preventing their inordinate increase and in eliminat- 
ing deficits in operation that a very marked movement 
is already under way to introduce it into both the 
Federal and State governments. Already a number 
of States have by law provided for a budget subject to 
revision either by the Governor, or by a board of esti- 
mates prior to submission to the legislature. But none 
of the plans which have been adopted has as yet taken 
from the legislature the power to increase items of 
appropriation. The Governor has, however, by many 
State constitutions the power to veto items in appro- 
priation bills and has thus quite an effective control of 
the situation if he is inclined to exercise it. 

I have not attempted to make an exhaustive enum- 
eration of the various attempts which have been made 
in the last half century of the life of this country to 
make our governmental organization more effective. 
I have, I hope, however, adduced enough examples to 
show that social efficiency is at the present time one 
of the principal aims of the American people. The 
burst of enthusiasm for popular participation in the 
work of government which was so characteristic of the 
first half century of our national life has almost spent 
Itself, except in those parts of the country whose 
economic life has been least subjected to modern in- 
fluences. In some of these districts the idea still lingers 
and is a force to be reckoned with. Not more than 
three or four years ago, the Governor of one of the 
Rocky Mountain States vetoed a bill which attempted 
to change the method of filling the office of State Vet- 
erinarian from popular election to executive appoint- 
ment. He gave as the reason for his action his belief 

[61] 



that executive appointment savored too much of 
monarchical government to be suited to the demo- 
cratic State over whose destinies he presided. 

Generally speaking, however, the power of the people 
to elect directly public officers is diminishing. The 
change is not, however, as has been pointed out, due 
to any decrease in the belief in the general theory of 
popular sovereignty. The people through the refer- 
endum and initiative are exercising greater power than 
ever over the determination of questions of policy. 
They have, however, in the interest of efficient gov- 
ernment, been willing to surrender powers of choosing 
public officers which they at one time regarded with 
great jealousy. 

When we come then to consider our national political 
philosophy from the point of view of the organization 
of our government, we reach the same conclusion which 
a review of the history of our conceptions of liberty 
forced upon us. We saw as a result of that review that 
while we had not abandoned the general theory of 
natural rights, we had subjected it to so many limita- 
tions that our concrete and detailed conceptions of 
liberty had been greatly modified where changes in 
social conditions made such modifications necessary or 
even expedient. When we trace the concrete applica- 
tions of the doctrine of popular sovereignty which lies 
at the foundation of the theory of natural rights, we 
find that although we have retained the doctrine in a 
general way we have in the details of our governmenta 1 
organizations modified very greatly our ideas as to its 
necessary or even desirable implications. 

The American conception of government like the 
American conception of liberty has had to submit to 
modifications in the interest of social efficiency. Social 

[62] 



efficiency is a much more important factor than it once 
was in the determination both of our sphere of hberty 
and of our form of government. The individuaFs duty 
to society rather than the rights which he possesses is 
being emphasized in courts of justice, halls of legisla- 
tion, the pulpit, and by the press. That the change in 
our point of view is a salutary one hardly admits of 
doubt. For it is only as individuals limit their con- 
ceptions of their rights by considerations of social 
justice and expediency, only as they come to recognize 
the existence and the imperative character of their 
social duties, that we can hope for the development of 
that social efficiency which is necessary both for indi- 
vidual happiness and the public welfare. 



[63] 



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