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1920 • 

All rights reserved 



Copyright, 1910, 1914, 

By the macmillan company. 

Set up and electrotyped. Published June, 1910. Reprinted 
October, 1910; January, August, December, 1911; July, 1912; 
February, August, 1913. 

New and revised edition, January, July, 1914; January, 
October, 1915 ; August, 1916; February, August, 1917; February, 

J. S. Gushing Co. — Berwick & Smith Co. 
Norwood, Mass., U.S.A. 


The several excellent manuals on American Government now 
available are written primarily for high schools, and there seems 
to be room for a volume, not too elementary nor yet too tech- 
nical, designed for college students and for citizens wishing 
a general survey of our political system. This volume, taken 
in conjunction with the companion work. Readings in American 
Government a?id Politics (cited in the footnotes as Readings)^ 
is intended to fill this gap. It is not a contribution to political 
literature, but is frankly based upon the best authorities of 
recent times. 

I have many personal debts to acknowledge. My colleagues. 
Professors Dunning, Goodnow, Munroe Smith, Shepherd, and 
G. W. Scott, and Mr. Sait have read portions of the manuscript 
or proof, and have given firmness to every page they have 
touched. Dr. Howard McBain has read the parts on Federal 
and State Government, and through his extensive knowledge 
of practical politics and administration I have been saved many 
slips. I am also indebted to him for innumerable corrections 
in perspective and interpretation. Professor A. R. Hatton has 
read the chapters on Municipal Government and, in addition 
to making a number of rectifications, he has shown me how 
much better they could have been done. Mr. Arthur Crosby 
Ludington has aided me materially with ballot and primary 
legislation. Mr. Alexander Holtzoff has helped me at every 
point in the making of the volume ; two chapters, on National 
Resources and the State Judicial System, were drafted by him 
under my direction ; and I owe him a debt which no mere line 
in a preface can pay. In planning and executing the work, 
I have had the constant and discriminating assistance of my 
wife. Notwithstanding all this cooperation, I must take the 

vi Preface 

burden of responsibility for errors and shortcomings. Only one 

who has gone over the same ground can appreciate how many 

there are ; but I trust they will .be viewed with charity by those 

who know how difficult a thing it is to describe a complex 

political organism which is swiftly changing under our very 


Columbia University, 
April, 1910. 


The call for a revision of this volume came unexpectedly at 
the opening of a busy academic year, and I was not able to 
undertake a leisurely re-writing of the entire work in accord- 
ance with my present ideal of a college text. I have confined 
myself largely to the task of recording the leading changes of 
the last four years ; but in doing this I have materially reduced 
the details and references to matters of a local and temporary 
interest, with which the first edition was overloaded. I have 
furthermore recast several sections in such a manner as to 
emphasize broad tendencies and general principles. The ne- 
cessity for including a mass of data on current practices, des- 
tined to become obsolete soon, is no longer imperative, because 
students now have an annual survey. The American Year Book, 
to which they can turn for the latest grist of constitutional 
amendments, statutes, and party programmes. 

I am indebted to Professor C. A. Dykstra, Dr. Louis A. 
Mayers, Professor B. F. Moore, and Professor T. R. Powell for 
pointing out errors in the first edition, and I shall be grateful to 
learn of mistakes which have escaped me in this revision. 


November, 19 13. 


In this edition I have followed the lines of the revision of 
November, 1913. I have vainly hoped for, but not yet found, 
leisure in which to recast the entire text. The continued demand 
for the book is some proof that it serves many people in its 
present general form, and therefore I venture, for a while longer, 
to let the main structure stand just as it was conceived ten years 
ago. I have, however, eliminated a large mass of details. 

In the preparation of this edition I am specially indebted to 
Professor James D. Barnett, of the University of Oregon. I 
only regret that the limitations of the revision made it impossible 
for me to incorporate every one of his wise and fruitful sugges- 
tions. I am also under heavy obligations to my friend, Mr. 
Louis B. Blachly of the Research Staff of the New York Mer- 
chants' Association. CHARLES A. BEARD. 

New York, 
May, 1920. 





I. Colonial Origins of American Institutions , 

II. Independence, Union, and Self-government . 

III. The Establishment of the Federal Constitution 

IV. The Evolution of the Federal Constitution . 
-V. The Evolution of State Constitutions . 

VI. The Evolution of Political Issues in the United States 
VII. The Development of Party Machinery . . . . 























The General Features of the Federal System of Gov- 

The Nomination and Election of the President 

The Powers of the President 

The National Administration 

The Congress of the United States 

The Powers of Congress 

Congress at Work 

The Federal Judiciary 

Foreign Affairs . 

National Defence 

Taxation and Finance 

The Regulation of Commerce . 

Natural Resources 

The Government of Territories 







Table of Contents 




XXII. The Constituiional Basis of State Government. . 428 

XXIII. Popular Control in State Governments , . . 458 

XXIV. The State Executive Department 488 

XXV. The State Legislature 516 

XXVI. The Judicial System 547 

XXVII. The Organization of Municipal Government . .578 

XXVIII. Municipal Functions 603 

XXIX. Local Rural Government 638 

XXX. State and Local Politics 656 

XXXI. Taxation and Finance 706 

XXXII. Social and Economic Legislation 721 

Constitution of the United States 753 

Guide to Current Literature on Government and Politics . 767' 

Bibliographical Note 769 

INOBX 777 





American government did not originate in any abstract 
theories about liberty and equality, but in the actual experience 
gained by generation after generation of English colonists in 
managing their own political affairs. The Revolution did not 
make a breach in the continuity of their institutional Ufe. It 
was not a social cataclysm, the overthrow of a dominant class, 
the estabUshment of a new estate in power. It was rather an 
expansion of the energy of the ruling agricultural and commercial 
classes, that burst asunder the bonds with which the compet- 
ing interests in England sought to restrain their growing enter- 
prise. American shipwrights could build vessels as fleet and 
strong as any that sailed the seas, and they were determined to 
conquer by main strength a free place in the world's market. 
American merchants were as ingenious as those who made 
England the nation of shopkeepers, and they could ill brook the 
restraints which condemned them to buy important staples in 
the marts of Great Britain. America was rich in timber, raw 
materials, and mineral resources, and American manufacturers 
chafed under laws compelling consumers to look beyond the seas 
for commodities which might well have been made in New Eng- 
land or Pennsylvania. It was discontent with economic re- 
strictions, not with their fundamental political institutions, 
which nerved the Revolutionists to the great task of driving 
out King George's governors, councillors, judges, revenue- 
ofiicers, and soldiers. The American Revolution, therefore, 

6 I 

2 American Government and Politics 

was not the destruction of an old regime, although it made the 
way for institutional results which its authors did not contem- 
plate; and it was not motived by the levelling doctrines with 
which the French middle class undermined the bulwarks of 

There had long been executive, legislative, and judicial offices 
in all of the colonies, and the Revolutionists merely took posses- 
sion of them. Unhke the French popular party, they did not 
have to exercise their political ingenuity in creating any fun- 
damentally new institutions. The Revolutionists of Rhode 
Island and Connecticut, where the governors, councillors, and 
judges were not appointed by the crown, found their ancient 
systems of government, based on seventeenth-century charters, 
so well suited to their needs and ideals that they made no alter- 
ations beyond casting off their allegiance to the King of Great 
Britain. The royal charter granted to Connecticut by Charles 
II in 1662 remained the constitution of that commonwealth 
until 1 81 8; and the charter of the neighboring state of Rhode 
Island, granted in 1663, remained in force as the fundamental 
law until 1842. The distribution of representation, the suffrage, 
the qualifications for office-holders, and the legislative, execu- 
tive, and judicial institutions of old English origin were con- 
tinued after the Revolution without many radical alterations. 

Even the federal Constitution, in spite of Mr. Gladstone's 
high praise that it was the most wonderful work struck off at 
a given time by the brain and purpose of man, was based as far 
as possible on the experience of the colonies and the states. 
The very names applied to the Senate, House of Representatives, 
and President were taken from the institutions of some of the 
states, while many clauses of the Constitution, such as those 
providing the process of impeachment, the presidential message 
and veto, the origin of money bills in the lower house, and the 
freedom of each house to determine its procedure under certain 
limitaticns, were taken almost verbatim from state constitu- 
tions.^ The powers which the Convention of 1787 vested in 

* Compare, for instance, the following chapter with the account of the in- 
stitutional reforms of the French Revolution in Robinson and Beard, Develop- 
ment of Modern Europe, Vol. I, chaps, xi and xii. 

2 For a study of the sources of the federal Constitution, see Robinson, 
Original and Derived Factors of the United States Constitution ^ and the note 

Colonial Origins of American Institutions 3 

Congress were scarcely experimental, for six years' practical 
experience with the shortcomings of the Articles of Confedera- 
tion had taught statesmen the inexorable necessity of giving 
the national government those very powers, and Hmiting the 
states in the exercise of the authority which they had previously 
enjoyed/ Nor must it be forgotten that the right later assumed 
by the Supreme Court to pass upon the constitutionality of laws 
and declare them void had already been exercised by many 
state courts.^ 

The dictum of Stubbs that the roots of the present lie deep in 
the past has now become commonplace; but it is true of Amer- 
ican institutions in a very pecuUar sense, for they are founded on 
written documents which, in spirit and form, bear the impress of 
the political and economic conditions prevailing at the time of 
their creation. Many state constitutions still reveal distinct 
traces of Revolutionary days, and the written letter of the 
federal Constitution, notwithstanding the eighteen amendments 
and the revolution wrought by the Civil War, remains unchanged 
so far as the machinery of government and the powers of its 
three departments are concerned. It is, therefore, from Amer- 
ican history alone that one can learn, for instance, why there 
are two Senators from each state, why the system of checks and 
balances, so characteristic of American institutions, was adopted, 
why the President is chosen through an elaborate electoral 
system, why interstate commerce powers are vested in the federal 
government, or why certain political practices have sprung up 
in the attempts to operate our governments, national and state.^ 

The Colonial Governor 

On the eve of the Revolution there were thirteen colonies in 
America — each with its separate institutions ^ and its peculiar 

to chap, iv of Bryce, American Commonwealth, Vol. I, taken from John- 
ston's article in the New Princeton Review, September, 1887. 

1 See an illuminating article on this point by Professor Max Farrand, in 
the American Political Science Review for November, igo8. 

2 Early cases illustrating the power of the courts to declare state laws in- 
valid on constitutional grounds are to be found in Thayer, Cases on Constitu- 
tional Law, Vol. I, pp. 48 ff. See also Professor Charles G. Haines' valuable 
work, The American Doctrine of Judicial Supremacy. 

^ Goodnow, Politics and Administration, especially chap. ii. 
* Delaware was under the proprietor of Pennsylvania. 

4 American Government and Politics 

traditions, many of which, it is instructive to remember, were 
then older than are our national traditions to-day. In form 
of government, however, especially in its higher ranges, the 
colonies presented striking similarities. Each had a governor, 
an assembly, and a judicial system, and the Common Law of 
England, as far as it was appHcable and had not been changed 
by legislation, was binding everywhere. 

In eight of the colonies, — Georgia, North Carolina, South 
Carohna, Virginia, New Jersey, New York, New Hampshire, 
and Massachusetts, ^ — the governor was appointed by the king 
and recognized as the king's personal deputy.^ He occupied a 
twofold position. On the one hand, he was the representative 
of British interests in the colony — the agent through whom 
the will of the British government was made known to the in- 
habitants, and the guardian who kept the crown informed on 
the state of the province. On the other hand, he was the highest 
executive official in the colony, charged with the conservation 
of the peace and advancement of the welfare of the colonists.^ 
As a contemporary writer put it: " the crown delegates to the 
governor for the time being all its constitutional power and 
authority, civil and mihtary — the power of legislation so far as 
the crown has such — its judicial and executive powers, its 
powers of chancery, admiralty jurisdiction, and that of supreme 
ordinary." ^ 

As the chief executive, he supervised the enforcement of the 
laws and appointed, usually in connection with the advice of his 
council, the important civil officers. He could remove councillors ^ 
and officials for cause, and direct them in administration. By 
virtue of his position as chancellor, he was head of the highest 
court in the colony, which entertained appeals from lower tri- 
bunals and exercised important original jurisdiction in many 

* For Massachusetts' peculiar position, below, p. 5. 

2 See Readings, p. 2, for a royal governor's commission. 
^ Greene, The Provincial Governor, chap, iv, p. 65. 

* Thomas Pownall, The Administration of the Colonies, pp. 85-86. 
The term "supreme ordinary" applies to the powers of the king as head 
of the Church of England. The royal governor was commissioned by 
the crown and commonly styled, "Captain-General, and Governor-in- 
Chief in and over the Province, and Chancellor, Vice-Admiral, and 
Ordinary of the same." 

* Not in Massachusetts. 

Colonial Origins of American Institutions 5 

matters. Moreover, he granted pardons and reprieves. He was 
commander-in-chief of the colonial forces, appointed the mili- 
tary officers of high rank, levied troops for defence, and enforced 
martial law in time of invasion, war, or rebelUon. As the king's 
ecclesiastical representative, he collated to churches and bene- 

In connection with the colonial legislature, the royal governor 
also enjoyed extensive powers. In all of the eight colonies men- 
tioned above, except Massachusetts, he nominated the council 
which composed the upper house of the legislature. He sum- 
moned, adjourned, and dissolved the assembly; he laid before 
it projects of law desired by the home government; and he 
vetoed laws which he thought objectionable. He was thus 
endowed by law with high authority, and often increased his 
poUtical influence through his power of appointing local sheriffs 
"who were the constituting officers at elections for the assembly. 
In short, the royal governor enjoyed such high prerogatives in 
colonial times that the first state constitution-makers, having 
learned by experience to fear executive authority, usually pro- 
vided for the supremacy of the legislature and gave their gov- 
ernors very Uttle power.^ 

The royal governor, however, was by no means an unhmited 
sovereign in his province, for he was bound by his instructions 
and by the restraints which the assembly imposed through its 
power of controlling the grants of money. Indeed, in the 
innumerable disputes which fill colonial history, the assembly 
usually triumphed over an obstinate governor because it was 
able to keep a firm 'grip on the purse-strings. Toward the 
eve of the Revolution, his appointing power was curtailed by 
the claims of the council to a share in the distribution of patron- 
age. Moreover, complaints against his actions often went to 
the Board of Trade,^ while appeals from his decisions lay to the 
king in council across the sea. 

UnHke the other colonies which had governors appointed by 
the king, Massachusetts had a charter that set forth, among 
other things, the gencjral organization and powers of the legis- 
lature. The governor could adjourn, prorogue, and dissolve 

^ See below, p. 87. 

2 Whitney, Government of the Colony of South Carolina, pp. 39-40. 

6 American Government and Politics 

the assembly, but he could not appoint the council, or uppei 
house, and he could choose the civil officers only with its con- 
sent. However, he enjoyed considerable mihtary authority ; he 
organized the mihtia, appointed the chief officers, commanded 
the armed forces, and declared martial law in case of rebeUion 
or invasion. Naturally this division of authority invited con- 
flicts, and it so happened that Massachusetts led the way in 
throwing off all royal authority. 

In Rhode Island and Connecticut the governor occupied a 
pecuhar position. In the first place, he was elected annually 
by a general assembly composed of the governor, assistants, 
and representatives chosen by the voters in each "city, town, or 
place." In the second place, the governor did not stand out as 
a distinct official; he was httle more than a figurehead, his 
functions being discharged only in cooperation with his assist- 
ants, or councillors. In each of these colonies, the governor and 
assembly were duly authorized to make all necessary laws and 
ordinances and manage corporate business with a large degree 
of freedom.^ There was accordingly no separation of legislative 
and executive powers as in the royal provinces, and the governor 
was constantly controlled in his office by the advisers who, Uke 
himself, were chosen by the general assembly. Furthermore, 
he enjoyed no veto power over legislation.^ 

The executive authority in the proprietary colonies of Mary- 
land and Pennsylvania and Delaware ^ stood on a different basis 
from that in the royal provinces or in Connecticut or Rhode 
Island. Each of the former was, as Professor Osgood points out, 
"a miniature kingdom of a semi-feudal type and the proprietor 
was a petty king." Each was a vast estate carved out of the royal 
dom^ain and granted by the crown to a proprietor who, in theory 
at least, combined the rights of government with those of land- 
lord, from which he derived large revenues. When the proprietor 
of Pennsylvania was in his province, he assumed executive au- 

^ For an extract from the Rhode Island Charter, Readings, p. 7. 

2 The governor of Rhode Island was given the veto power in 1909. 

^Delaware was united to Pennsylvania under the proprietorship of 
Penn in 1682, and until 1704 the two colonies had a single legislature. 
In the latter year, however, separate legislatures were established, although 
they continued under the same proprietor, who appointed a governor for 
Delaware to represent himself. 

Colonial Origins of American Institutions 7 

thority himself, but when he was absent he vested it in a lieuten- 
ant-governor who served in the capacity of his agent.^ The Penn- 
sylvania assembly successfully resisted the power of the governor 
to dissolve or prorogue, and thf executive council did not serve 
as an upper chamber, as was the case in the legislatures of the 
other colonies, although it did enjoy a somewhat indefinite in- 
fluence over legislation.^ In Maryland, " the proprietary held the 
title to ail the land, was captain-general and head of the Church. 
All patronage, lay and clerical, amounting to fourteen or fifteen 
thousand pounds a year — from the governor with a salary of 
fifteen hundred and fifty pounds down to the naval officers and 
sheriffs — was in his hands. He had a negative upon all laws, 
and the power of pardon. To the proprietary belonged all the 
quit-rents, the tobacco and tonnage duties, and the legal fines 
and forfeitures, although the assembly vigorously resisted this 
last source of emolument. ... To the governor, who was ap- 
pointed by the proprietary, the exercise of all these sovereign 
powers was, as a rule, entrusted. The governor represented the 
proprietary in the province, summoned, prorogued, and dis- 
solved the assembly, and assented to laws. He also claimed a 
veto on legislation, but this right was not admitted by the Bur- 
gesses. He made all appointments to ofiice, issued pardons, 
signed the warrants for execution, and exercised great political 
influence." ^ Nevertheless, under its power to control money 
grants, the popular branch of the legislature in Maryland suc- 
ceeded, toward the Revolution, in securing a tolerably effective 
control over the governor in the exercise of these large powers. ^ 

Colonial Legislatures 

In all of the colonies, except Pennsylvania, there were two 
branches of the legislature, and only in Massachusetts, Con- 
necticut, and Rhode Island, was the upper house — to use the 
term in a general sense — elective. In these three New England 
colonies, the councillors, or assistants, as they were called, were 
chosen by the general assembUes, and thus did not occupy the 

^ W. R. Shepherd, History of Proprietary Government in Pennsylvania 
(Columbia University Studies), p. 474. 
^ Ibid., p. 321. 
^ Lodge, English Colonies in America, p. 113. 

8 American Government and Politics 

same position of independence over against the representative 
branch, as did the councillors of the royal colonies. In the pro- 
vincial colonies, the upper house, or council, was chosen by the 
king acting through the royal governor, who usually determined 
the selection himself. In the proprietary colonies, the proprietor 
or his representative selected the councillors. 

In addition to the usual legislative powers, that is, the right to 
discuss and vote on laws, the council had executive and judicial 
functions. It advised the governor ; in conjunction with him it 
formed a judicial tribunal ; it frequently controlled him in mak- 
ing appointments; and it discharged many of the official duties 
now vested in higher state officers, such as the secretary and 
treasurer. In Massachusetts, the governor and council ap- 
pointed civil officers; in South Carolina the governor had to 
secure the approval of the council before taking any important 
action or making an official appointment; in Rhode Island the 
assistants shared the executive power of the governor; and in 
New Jersey it was only with the consent of the council that the 
governor appointed judges and civil, ecclesiastical, and mihtary 
officials. Where the council was elected it tended to merge with 
the legislature; in Pennsylvania, where it was the proprietor's 
advisory board, it lost almost all legislative power, and in the 
royal provinces it became an aristocratic body, sympathizing 
generally with the governor and king in the contests with the 
representative branch of the government. 

In every colony there was an assembly of representatives chosen 
by popular vote, but, contrary to common impressions, there was 
nothing Uke universal manhood suffrage.^ In New York, for 
example, voters for members of the assembly — the lower branch 
of the legislature — were required to be freeholders of lands or 
tenements to the value of forty pounds free from all encum- 
brances, except that in New York City and Albany the suffrage 
was open to all freemen — that is, all men who had been regu- 
larly admitted to civic rights.^ In Virginia the voter had to be 
a freeholder of an estate of at least fifty acres of land, if there was 
no house on it; or twenty-five acres with a house twelve feet 

^Reference: A. E. McKinley, The Suffrage Franchise in the Thirteen 
English Colonies, University of Pennsylvania Publications — the stand- 
ard authority on this problem. 

^ For a fuller explanation of this term, see McKinley, ihid., pp. 208 ff. 

Colonial Origins of American Institutions g 

square; or, if a dweller in a city or town, he had to own a lot or 
pait of a lot with a house twelve feet square. In Massachusetts 
the voter for member of the legislature, under the charter of 
1 69 1, had to be a freeholder of an estate worth at least forty 
shillings a year, or the owner of other property to the value of 
forty pounds sterUng. In Pennsylvania the vote was restricted 
to freeholders of fifty acres or more of land "well seated" and 
twelve acres cleared, and to other persons worth at least fifty 
pounds in lawful money. 

As a result of these property quaUiications, a considerable 
portion of the adult males were excluded from any share in the 
government. Exact statistics are difficult to obtain, and the 
following figures are given by Dr. McKinley merely by way 
of illustration. He estimates that in New York City the voting 
class included from one-ninth to one-fourteenth of the total popu- 
lation, and that two-fifths of these electors were not owners of 
property, but voted as freemen of the city. Taking some scat- 
tered figures for mid-century elections in Virginia, he places 
the voting population at from seven to ten per cent of the white 
inhabitants, and concludes that "the franchise was more widely 
exercised, if not more widely conferred, in Virginia than in the 
more Northern colonies." In Boston during the period from 
1745 to 1754 the number of voters averaged about three per cent 
of the population, but this was partially due to the fact that 
many duly qualified voters were ordinarily inactive, for on one 
occasion at least six and one-half per cent of the inhabitants 
took part in an election. In the rural districts of Pennsylvania 
about one out of ten of the population could vote, while in the 
city of Philadelphia the fifty-pound qualification disfranchised 
so many inhabitants that, according to the tax list, only one in 
fifty possessed the suffrage. 

In conclusion, Dr. McKinley says: "In New York City in 
the elections of 1735, 1761, and 1769, the actual voters num- 
bered about eight per cent of the population. In Pennsylvania 
the tax list figures give only the potential voters, but they show 
about eight per cent of the rural population quahfied for the 
suffrage and only two per cent in the city of Philadelphia, a 
condition quite in contrast to that of New York City. In New 
England the actual voters appear to be less proportionately than 
in the middle and southern colonies. Massachusetts, for instance, 

10 American Government and Politics 

shows only one person in fifty as taking part in elections, and 
Connecticut, in elections immediately preceding the Revo- 
lution, had about the same proportion. In Rhode Island the 
freemen or potential voters numbered only nine per cent of the 
population. These figures are entirely too few and too scattered 
in time and territory to justify any accurate generahzation from 
them. The potential voters seem to vary from one-sixth to 
one-fiftieth of the population, and the actual number of voters 
shows almost an equal variation; Massachusetts and Connec- 
ticut showing at times only two per cent of actual voters among 
the population, where perhaps sixteen per cent were qualified 
electors; and New York City and Virginia showing the far larger 
proportion of eight per cent of the population as actual voters. 
At best the colonial elections called forth both relatively and 
absolutely only a small fraction of the present percentage of 
voters. Property qualifications, 'poor means of communication, 
large election districts, and the absence of party organization 
combined to make the most sharply contested elections feeble 
in their effects upon the community as compared with the wide- 
spread suffrage of the twentieth century." ^ 

Most of the colonies also followed the example of the mother 
country in imposing special qualifications on members elected 
to the legislature. In South CaroHna, for example, a member 
had to own five hundred acres of land and ten slaves or be worth 
one thousand pounds sterling in land, houses, or other property. 
New Jersey members had to have one thousand acres freehold, 
while in Georgia delegates were required to own at least five 
hundred acres of land. In addition to property qualifications, 
religious tests were usually imposed on assemblymen. 

Following the ancient practice of England, representatives 
were distributed, in colonial times, among distinct territorial 
districts rather than among equal groups of people. In New 
England the town was the unit of representation, and only a 
slight attempt was made to adjust the representation to the 
population. For example, the charter of Rhode Island stipu- 
lated that Newport should send not more than six persons. 
Providence, Portsmouth, and Warwick four each, and other 
places, towns, and cities two each. The Massachusetts charter, 

» Op. cit., p. 487. 

Colonial Origins of American Institutions 1 1 

while providing that the original assembly should consist of two 
representatives from each town or place, at the same time au« 
thorized the assembly to alter this number at will; and, although 
the modern democratic principle of equal election districts was 
not recognized, an attempt was made to give special weight to 
larger numbers. In the middle colonies, the county was the 
unit of representation, and, according to ancient EngUsh prece- 
dent, each county elected its representatives under the super- 
vision of the sheriff as returning officer. In South CaroUna 
representatives were apportioned among parishes, but they 
varied so greatly in population that the representation was un- 
equal. In general, it may be said, therefore, that the principle 
of equal representation was not accepted, but that practical 
considerations led to a very rough attempt to give special recog- 
nition to the more populous areas. 

The colonial assembUes constantly maintained that they 
possessed entire and exclusive authority to regulate their domes- 
tic concerns.^ Especially in the matter of taxation did they 
stoutly assert their exclusive rights not only in formal declara- 
tions but also in actual resistance to the royal and proprietary 
governors. No attempts, however, were made to define and lay 
down colonial legislative powers in any complete written instru- 
ments.^ Such a procedure was almost unknown to the poUtical 
practice of England; and no concrete need for it had arisen in 
the colonies. In the charters, the legislative power conferred 
was general, not specific. For example, the Massachusetts 
charter of 1^91 provided that the assembly should have "full 
power and authority from time to time to make, ordain, and 
estabHsh all manner of wholesome and reasonable orders, laws, 
statutes, and ordinances, directions, and instructions either with 
penalties or wdthout (so that the same be not repugnant or con- 
trary to the laws of this our realm of England) as they shall 
judge to be for the good and welfare of our said province or ter- 
ritory." In addition to this general legislative power, the as- 
semblies' usually enjoyed a large control over the executive 

^ Story, Commentaries on the Constitution (5tli ed.), Vol. II, p. 119. 

2 Some of the legislatures, however, prepared statements of their 
"rights." New York, for example, did this before the close of th« 
seventeenth century. 

12 American Government and Politics 

department througli their power to withhold the salaries of tht 

Notwithstanding the large legislative power asserted and 
enjoyed by the colonial assemblies, there were certain legal 
Hmitations on their authority. In the provincial and proprie- 
tary colonies, the governor exercised the right to veto laws,' 
and in all colonies except Maryland, Rhode Island, and Connec- 
ticut laws had to be sent to England for royal approval. Fur- 
thermore a special act of Parliament provided that all laws, 
by-laws, usages, and customs in the colonies repugnant to laws 
made in England relative to colonial affairs should be null and 
void. Later, ParUament distinctly asserted that the colonies 
and plantations in America were subordinate to and dependent 
on the crown and ParUament of Great Britain, which enjoyed 
the power and authority to make laws binding the colonies and 
people of America in all cases whatsoever. A South Carolina 
court once went so far as to declare an act of the colonial legis- 
lature of 1 71 2, taking away the freehold of one man and vesting 
it in another, null and void on the ground that it was against 
common right and Magna Charta.^ At all events the colonists 
had long been acquainted with both theoretical and practical 
hmitations on their assemblies, so that, after gaining indepen- 
dence, they acquiesced, though not without contest, in the 
courts' assumption of power to declare laws null and void on 
constitutional grounds. 

The Colonial Judiciary 

The lowest colonial courts were those held by the Justices of 
the peace, who were generally appointed by the governor, although 
in some instances they were elected by local freeholders. In 
civil matters, these justices had jurisdiction over cases involving 
small amounts, under five pounds in New York and under forty 
shilUngs in Massachusetts. In criminal matters they were 
competent to try only the pettiest offences against the law. 
Though they bore the name of ancient local magistrates of Eng- 
land, they enjoyed by no means the same powers, especially in 

^ In Connecticut and Rhode Island t^e governor did not enjoy the 
veto power. 

2 Thayer, Cases on Constitutional Law, Vol. I, p. 53. 

Colonial Origins of American Institutions 13 

the matters of administration and local government. In Mas- 
sachusetts, and some other colonies, however, the old EngUsh 
practice of uniting all the justices of the county in a general 
court of quarter sessions was followed; and this court, in addi- 
tion to exercising criminal jurisdiction, supervised roads, bridges, 
inns, and other county affairs which are now usually placed under 
the direction of county cominissioners.^ 

Above the justices of the peace there were usually regular 
county courts, the judges of which were appointed by the gov- 
ernor, except in New Jersey, where they were elected. Generally 
speaking,' the county court had criminal jurisdiction over all 
except capital cases, although in Massachusetts criminal matters 
were turned over to sessions of the justices of the peace. The 
county courts also had civil jurisdiction in cases involving certain 

Each colony had a high court w^hich decided weighty matters 
and appeals from the lower courts. In the royal colonies the 
governor as chancellor and his council generally composed 
this high tribunal; but in Massachusetts it consisted of a chief 
justice and four associates appointed by the governor and coun- 
cil. In Pennsylvania the supreme court was composed of a 
chief justice and three associates, chosen by the governor. 

Beyond the highest court of the colony, there lay appeals to the 
king in council in England, and this power was frequently ex- 
ercised on the eve of the Revolution. Far from being regarded 
as an infringement on the rights of colonists, it was esteemed 
a privilege to be able to lay cases before the members of this 
tribunal, who were so far removed from local jealousies.- It 
was of course an expensive process, and only cases involving 
certain amounts could be appealed. In Pennsylvania the amount 
had to exceed fifty pounds, and in Georgia five hundred pounds, 
before the case could be carried to the king and his council. 

While there were great divergences among the colonies in the 
organization of the courts and the apportionment of business 
among them, they thus had certain features in common. The 
idea of an elective judiciary, unknown to EngUsh practice, was 
not accepted save in some minor instances. The system of 

* Readings, p. 13, on the powers of magistrates in Virginia. 

* Story, Coinmentaries (5th ed.), Vol. I, p. 127. 

t4 American Government and Politics 

appeals to the highest colonial court was universally recognized, 
and the practice of carrying important cases to a tribunal above 
all colonial courts was steadily maintained. Consequently, 
when the colonists were later called upon to organize their own 
judicial system, they had to make but sHght changes in the 
existing arrangements. 

Municipal and Local Institutions * 

Although there were in the colonies no cities of importance, 
measured by modern standards, the foundations of American 
municipal government must be sought in colonial times. It 
appears that there were about twenty municipal corporations 
during that period, each of which received its charter from the 
colonial governor — New York and Albany in 1686, Philadelphia 
in 1691, and Trenton, New Jersey, the last, in 1746. The form 
of organization in general followed old English examples; the 
governing body was a common council composed of the mayor, 
recorder, aldermen, and councillors. In most of the cities the 
councilmen and aldermen were "elected by popular vote under 
a franchise wliich everywhere included all of the well-to-do 
classes and generally a large proportion of the residents, though 
in no case was manhood suffrage established." In Philadelphia, 
AnnapoHs, and Norfolk the common council was a closed cor- 
poration; that is, the aldermen and councillors enjoyed Hfe 
terms and the power of filhng vacancies as they occurred. In 
accordance with English precedent, the mayor was not elected 
by popular vote. In a few instances he was selected by the com- 
mon council, but in the majority of cities, including New York 
and Albany, he was appointed by the provincial governor. 
Somewhat restricted powers were at first conferred upon the 
municipality by its charter, and in the later period, before the 
Revolution, it was a common practice to secure from the colonial 
assemblies special acts granting additional powers. The striking 
feature of the colonial municipal system was the fusion of execu- 
tive, legislative, and judicial functions in the hands of the same 
body; and it is interesting to note that the commission form of 
municipal government now being widely adopted throughout 
the United States is the return to the original principle in so 

* Reference: Fairlie. Municipal Administration, pp. 72 ff. 

Colonial Origins of American Institutions 15 

far as it vests administrative and legislative powers in one au- 

In the sphere of rural local government we have departed even 
less from colonial models than in other branches of administra- 
tion. The Revolution did not disturb, in any fundamental 
manner, the institutions of local government which had come 
down from early colonial times; for, as Professor FairUe says, 
*' the main features of the old systems continued in the different 
states. Towns in New England and the middle states and par- 
ishes in the southern states remained unaltered; and are in fact 
not mentioned in most of the constitutions of the revolutionary 
period." ^ In New England the unit of local administration was 
the town, which was governed by a meeting of the electors, who 
chose the town officers, levied taxes, appropriated money, passed 
by-laws, and re\'iewed the activities of the various local officers.^ 
Counties existed, of course, in New England, but only in a rudi- 
mentary form, and principally for judicial purposes. In the 
middle colonies, notably New York and Pennsylvania, there was 
a combination of town and county local government. Town 
meetings were held in New York as in New England. As early as 
1 69 1, however, a county board of supervisors, representing the 
various to^vns, was created an d began to absorb at once the most 
important local administrative functions. In Pennsylvania, 
strong county administrative organization overshadowed the 
town and furnished the model for local government in a large 
number of western states. In the South, the plantation system 
led to the formation of scattered settlements, so that local gov- 
ernment had to be based upon the county rather than the parish. 
Thus, for example, in Virginia, "the county became the unit 
of representation in the colonial assembly and the unit of military, 
judicial, highway, and fiscal administration. The officers were 
the county Heutenant, the sheriff (who acted as collector and 
treasurer) , justices of the peace, and coroners. All were appointed 

* Goodnow, Municipal Government, p. 176; Readings, p. 529. It 
should be noted that in New England the government of the urban 
centres was based upon the rural town-meeting system. 

^ Local Government, p. 33. 

' For the minutes of a Boston town meeting in 1758, see Readings, 
p. II, and compare with the documents on a modern New England town 
meeting, Readings, pp. 556 S. 

1 6 American Government and Politics 

by the governor of the colony on the recommendation of th« 
justices, and the latter thus became a self-perpetuating body 
of aristocratic planters controUing the whole county adminis- 
tration." ^ 

Social Classes in Colonial Times ^ 

In every colony there was a somewhat sharp differentiation 
of society into economic classes. In all of the colonies there was 
a distinct upper class: the clergy, professional men, merchants, 
and landed proprietors in New England; the landed proprietors 
and merchants in the middle colonies; and the great slave-hold- 
ing planters in the South. At the bottom of the social scale 
there were the slaves and poor whites in the South, the mechan- 
ics, indented servants, and a few slaves in the middle colonies 
and New England. Between these social groups was a sub- 
stantial middle class of small farmers, traders, and storekeepers. 

The situation in New York can best be described in the 
language of Mr. Theodore Roosevelt: ''The colony was in gov- 
ernment an aristocratic republic, its constitution modelled on 
that of England and similar to it; the power lay in the hands of 
certain old and wealthy famihes, Dutch and EngHsh, and there 
was a Umited freehold suffrage. The great landed famihes, the 
Livingstons, Van Rennselaers, Schuylers, Van Cortlandts, Phil- 
lipses, Morrises, with their huge manorial estates, their riches, 
their absolute social preeminence and their unquestioned pohtical 
headship, formed a proud, polished, and powerful aristocracy, 
deep rooted in the soil. . . . They owned numerous black 
slaves, and hved in state and comfort on their broad acres, 
tenant-farmed, in the great roomy manor-houses, with wain- 
scotted walls and huge fireplaces, and round about, the quaint old 
gardens, prim and formal with their box hedges and precise 
flowerbeds. . . . 

"Next in importance to the great manorial lords came the 
rich merchants of New York; many famihes Hke the Living- 
stons, the most prominent of all, had representatives in both 
classes. . . . They were shrewd, daring, and prosperous; 
they were often their own ship-masters, and during the incessant 

' Fairlie, Local Government, p. 19; for an illustrative document, see 
Readings, p. 13. 

^ Reference, Lodge: English Colonies in America. 

Colonial Origins of American Institutions 17 

wars against the French and Spaniards went into privateering 
ventures with even more zest and spirit than into peaceful trad- 
ing. Next came the smaller landed proprietors, who also pos- 
sessed considerable local influence; such was the family of the 
CHntons. The law, too, was beginning to take high rank as an 
honorable and influential profession . . . The bulk of the people 
were small farmers in the country, tradesmen and mechanics 
in the towns. » . . The farmers were thrifty, set in their ways, 
and obstinate; the townsmen thrifty also, but restless and tur- 
bulent. Both farmers and townsmen were thoroughly inde- 
pendent and self-respecting, and were gradually getting more 
and more poUtical power. . . . The habit of constantly im- 
porting indentured Irish servants, as well as German laborers, 
under contract, prevafled throughout the colonies and the num- 
ber of men thus imported was quite sufiicient to form a consider- 
able element in the population, and to add a new, although per- 
haps not very valuable, strain to our already mixed blood. In 
taking up at random the file of the New York Gazette for 1766, we 
find among the advertisements many offering rewards for run- 
away servants; such as 'three pounds for the runaway servant 
Conner O'Rourke,' 'ten pounds for the runaway Irish servant, 
PhiHp Maginnis,' 'five pounds apiece for certain runaway Ger- 
man miners, — Bruderlein, Baum, Ostmann, etc. — imported 
under contract'; aU this mixed in with advertisements of rewards 
of about the same money value for 'the mulatto man named 
Tom,' or the * negroes Nero and Pompey.' " ^ 

Political Theory ' 

There is no reason to suppose that the educated and well-to-do 
colonist? were in any way discontented with the fundamental 
institutions of government under which they Uved. At all 
events, we find no such Uterature of poUtical criticism in the 
American colonies on the eve of the Revolution as we find in 
France previous to the meeting of the Estates General. It is 
true that in Pennsylvania some of the mechanics were dis- 
contented with the way in which the propertied classes conducted 

* Theodore Roosevelt, Gouverneur Mortis (American Statesmen Series), 
pp. 14 ff. 

' Reference : Merriam, American Political Theories; Readings ^ p. 13. 

1 8 American Government and Politics 

the government of the city.^ It is true, also, that there was som« 
vague unrest among the disfranchised of New York City; but 
generally speaking there was no organized protest and no Hter- 
ature of protest. 

Even the Puritan philosophy of New England got the name 
of being democratic because the Puritans had resisted royal 
prerogative rather than because they entertained any equali- 
tarian notions of democracy. As early as 1631 the people of 
Massachusetts provided that no one should be admitted as a 
freeman unless he was a member of one of the churches, and to 
the very end a clear distinction was made between the inhab- 
itants and the freemen enjoying poUtical privileges. They 
regarded the Bible, interpreted by themselves, as the foundation 
of the state. "There is undoubtedly," said John Ehot, ''a form 
of civil government instituted by God himself in the holy Scrip- 
tures, whereby any nation may enjoy all the ends and effects 
of government in the best manner, were they but persuaded 
to make a trial of it." There was in New England, especially 
in the rural districts, a considerable democratic equality, but 
nowhere in the literature of New England do we find any 
real enthusiasm for democracy in the abstract. In fact John 
Cotton in 1644 declared that democracy was "the meanest and 
worst of all forms of government." 

In a treatise by John Wise, entitled, A Vindication of the 
Government of New England Churches^ published in 171 7, we 
find the following enumeration of the forms of government, 
with a commentary upon each of them:- "(i) a democracy, 
which is when the sovereign power is lodged in a council consist- 
ing of all the members, and where every member has the privi- 
lege of a vote. This form of government appears in the greatest 
part of the world, to have been the most ancient. For that 
reason seems to shew it to be most probable, that when men had 
thoughts of joyning in a civil body, would without question be 
inclined to administer their common affaires by their common 
judgement, and so must necessarily establish a democracy. A 
democracy is then erected, when a number of free persons, do 
assemble together, in order to enter into a covenant for uniting 

* C. H. Lincoln, The Revolutionary Movement in Pennsylvania^ 1760- 
76, University of Pennsylvania Publications. 
' Extract slightly condensed. 

Colonial Origins of American Institutions 19 

themselves in a body. And to compleat this state these con- 
ditions are necessary: i. That a certain time and place be as- 
signed for assembling. 2. That the vote of the majority must 
pass for the vote of the whole body. 3. That magistrates be 
appointed to exercise the authority of the whole for the better 
dispatch of business, of every days occurence. (2) The second 
species of regular government, is an aristocracy. (3) The third 
species of a regular government, is a monarchy. It is said of 
the British empire, that it has the main advantages of an aris- 
tocracy, and of a democracy, and yet free from the disadvantages 
and evils of either. It is such a Monarchy, as by most admirable 
temperament affords very much to the industry, liberty, and 
happiness of the subject, and reserves enough for the majesty 
and prerogative of any king, who will own his people as subjects, 
not as slaves. It is a kingdom, that of all kingdoms of the world, 
is most like to the kingdom of Jesus Christ, whose yoke is easy, 
and burden light." 

Neither did the colonists entertain modern notions of reUgious 
liberty, although by gradual process a high degree of toleration 
had been estabUshed. In New York, for example, Cathohcs 
and Jews were excluded from the suffrage by the terms of the 
law, but it is impossible to discover to what extent the law was 
actually enforced. In fact. Catholics and Jews were quite 
frequently disfranchised. In Virginia the EstabUshed Church 
sought to suppress dissent, and as late as 1774 James Madison 
wrote: "that diabolical, hell-conceived principle of persecution 
rages among some. . . . There are at this time in the adjacent 
coun-try no less than five or six well meaning men in close jail 
for publishing their religious sentiments which in the main are 
very orthodox." ^ 

Experiments in Federation 

Although it was the Revolution that welded the thirteen 
colonies into the union which finally proved permanent, there 
had been three noteworthy attempts at federation previous to 
the War of Independence. The first was the New England 

* Letters and Writings of James Madison, Vol. I, p. 12. On the whole 
question of religious liberty, see S. H. Cobb, The Rise of Religious Liberty 
in America. 

20 x^merican Government and Politics 

Confederation formed among Massachusetts Bay, Plymouth, 
Connecticut, and New Haven in 1643. The united colonies 
of New England were bound together in a "firm and perpetual 
league of friendship and amity for offence and defence, mutual 
advice and succor, upon all just occasions, both for preserving 
and propagating the truth and Hberties of the Gospel and for 
their own mutual safety and welfare." For some twenty years 
the Confederation was active, and it continued to hold meetings 
until 1685, but it left Httle permanent impress. 

The second attempt at union was at Albany in 1754, when 
on suggestion of the Lords of Trade in England an intercolonial 
conference was held for the purpose (among other things) of 
entering into "articles of Union and confederation with each 
other for mutual defence of his majesty's subjects and interests 
in North America in time of peace as well as war." Massa- 
chusetts, Connecticut, Rhode Island, Pennsylvania, New York, 
New Hampshire, and Maryland were represented, and a com- 
mittee, with FrankHn in the lead, reported plans for union. The 
colonists, however, did not adopt the scheme because they 
feared that it would give the crown too much power. The 
crown regarded the plan as too democratic, and so the project 
fell through. 

The introduction of the Stamp Tax bill into ParHament led 
several of the colonies to protest to the home government; and 
when the bill was passed in spite of their objections, the Mas- 
sachusetts legislature recommended a colonial congress and ap- 
pointed representatives. After no little dispute among the 
members of other colonial assemblies, the proposed congress 
composed of the representatives of nine colonies — all except 
Virginia New Hampshire, Georgia, and North CaroHna — 
convenea in New York in 1765. Permanent union, however, 
was not their purpose. They merely formulated an address to 
the King, a memorial to the Lords, and a petition to Commons; * 
and the repeal of the Stamp Act put a stop to the union move- 
ment for the time. It required the patriotism and pressure of 
the long war to fuse the colonies into a nation. 

^ They also drafted a list of grievances. 



The American Revolution has two aspects. On the one hand, 
it was a contest between the government of Great Britain and 
those colonists who determined, in the beginning of the con- 
trovexsy, to resist the policy of the mother country, and finally 
to throw off her rule altogether. To bring this contest to a suc- 
cessful issue, the Revolutionists formed committees, assembUes, 
and national congresses ; they raised troops, levied taxes, bor- 
rowed money, negotiated with foreign powers, and waged war 
in the field. On the other hand, when independence was de- 
clared, the Revolutionists had to provide some form of united 
government for the reaHzation of their common purposes, and 
at the same time to estabhsh permanent state governments. 
Thus cooperation among the Revolutionists of all the colonies 
and internal reconstruction within each colony proceeded simul- 
taneously, and the result at the close of the war was a collection 
of "free, sovereign, and independent states" — each with a 
constitution of its own — leagued in a "perpetual union" under 
the Articles of Confederation. 

Union under the Continental Congresses 

The Revolution was the work of definite groups of men co- 
operating for specific purposes. In the preliminary stages of 
resistance to Great Britain, the colonists relied mainly on their 
regular assemblies as organs for the expression of revolutionary 
opinion, but as the contest became more heated and acts were 
performed for which there was no legal sanction, the Revolu- 
tionists began to form independent committees to represent them. 
This was necessary for the purposes of agitation, and later for 
organized rebellion, especially in those colonies with royaJ 

22 American Government and Politics 

The germs of these revolutionary organizations which soon 
widened into state and national governments are to be found in 
the committees of correspondence — small groups of persons 
selected by the Revolutionists in parishes, towns, and counties 
for the purpose of corresponding with one another, comparing 
views, and finally cooperating in the great task of overturning 
the old government and setting up a new system. These com- 
mittees began as local organizations, but spread so rapidly and 
cooperated so effectively that they soon gathered sufficient force 
to accomplish the work of the Revolution.^ 

As early as November, 1772, a committee of correspondence 
was formed in Boston under the direction of Samuel Adams; ^ it 
held regular meetings, sent emissaries to neighboring towns to 
organize similar bodies, and carried on a campaign of popular 
education in opposition to British colonial poUcy. 

Early in the following year the Virginia House of Burgesses 
appointed a special committee which was charged "to obtair 
the most early and authentic intelUgence of all such acts and 
resolutions of the British Parliament or proceedings of adminis- 
tration as may relate to or affect the British colonies in America; 
and to keep up and maintain a coirespondence and communica- 
tion with our sister colonies respecting those important considera- 
tions; and the result of such their proceedings from time to time 
to lay before this house." This official example was speedily 
followed by other legislative assembHes, so that within about a 
year there were twelve colonial committees appointed in regular 
form. Imposing as they seemed, however, they were by no 
means as active and important as the unofficial local committees 
representing the Revolutionists directly. 

These local committees sprang up everywhere under the 
direction of the county committees, and assumed control of 
the revolutionary forces. Thus there was organized a govern- 
ment within a government, with the old territorial subdivisions 
of the colony as a basis. For example, in New Jersey each 
township had its committee which chose delegates to form the 

* Collins, Committees of Correspondence of the A merican Revolution, 
Annual Report of the American Historical Association, 1901, Vol. I, 
pp. 247 ff- . . 

* For the significant Boston resolution establishing this committee, 
te5e Readings, p. 17. 

Independence, Union, and Self-Government 23 

county committee, which in its turn selected representatives to 
compose a committee for the entire colony. These commit- 
tees were powerful organs for action ; they kept up the general 
agitation; they called periodical conventions of Revolutionists; 
and indeed assumed the reins of government. 

The skeleton or framework of the revolutionary machine was 
therefore well perfected when Samuel Adams in 1774 proposed 
in the Massachusetts legislature a resolution in favor of calling 
a congress of delegates from all the colonies to meet at Phila- 
delphia in September.^ While the messenger of the governor, 
sent to dissolve the assembly, was thundering at the door, the 
momentous resolve was passed and the call for united action 
against Great Britain was issued. The other colonies except 
Georgia responded to this appeal with alacrity by selecting, in 
some fashion or another, representatives for the general Congress. 
The method of choice varied so greatly that the Congress was in 
every way an irregular and revolutionary body. The colonies 
without the consent of the British crown can scarcely be said to 
have enjoyed the right of calHng and organizing such a congress. 
In Massachusetts, Rhode Island, and Pennsylvania, the repre- 
sentatives were chosen informally by the colonial assembly; 
in New Hampshire they were selected by a meeting of delegates 
appointed by the several to^vns. In Connecticut they were 
elected by committees of correspondence; in New York prac- 
tically by the Revolutionists of New York coimty; in New 
Jersey, Delaware, Maryland, and Virginia by conventions com- 
posed of county delegates, many of whom had been members of 
the colonial legislatures; in South CaroUna by a "general meet- 
ing of the inhabitants of the colony," and in North CaroHna by 
*'a general meeting of the- deputies of the province."^ In all 
of these irregular elections, the lead was taken by the men who 
had been most active in the organization of committees of cor- 
respondence and the agitation against Great Britain. 

The general purpose of this Congress, ostensibly at least, was 
stated in the instructions which were given to the delegation of 
each colony by the body that elected it. These instructions 

* This call is printed in the Readings, p. i8. 

2 The South Carolina Resolution appointing delegates is in the Read- 
ings, p. 19. 

24 American Government and Politics 

did not speak of union or independence; perhaps it was not 
thought wise by the leaders to announce any distinctly revo- 
lutionary purpose, even if they entertained it. The Massa- 
chusetts instructions authorized the delegates to consult upon 
the state of the colonies, and to deUberate and determine upon 
wise and proper measures to be recommended for the recovery 
and establishment of their just rights and liberties and the res- 
toration of harmony between Great Britain and the colonies. 
Indeed, most of the instructions indicated a desire to see good 
feehng restored; and those of South CaroUna only authorized 
the delegates to take ''legal" measures to obtain the repeal of 
the obnoxious laws. The tone of the colonists was determined, 
however, and North Carolina instructed her representatives to 
"take such measures as they may deem prudent to effect the 
purpose of describing American rights with certainty and guard- 
ing them from any future violation." 

As the whole procedure, strictly speaking, could not have 
been regarded as legal at all, the Hmitations imposed on the 
delegates could not have had anything more than moral force. 
The bodies that chose them were not independent and sovereign 
states with law-making powers, but groups of discontented sub- 
jects of ^reat Britain seeking a redress of grievances. In 
accordance with the letter of the instructions, the Congress con- 
tented itself with remonstrating against British pohcy, recom- 
mending the colonists to join in the non-importation of British 
goods, and adopting other measures calculated to bring the 
British government to terms. 

This boycott of British goods and the provisions for enforcing 
it had a marked effect on the course of events. It was agreed by 
the Congress that a committee should be chosen in every county, 
city, and town "by those who are quahfied to vote for represen- 
tatives in the legislature, whose business it shall be attentively 
to observe the conduct of all persons touching this association." 
These local committees were instructed to pubHsh the names of 
all citizens who violated the terms of the boycott, to the end that 
all such foes to American rights might be pubhcly known and 
universally contemned. Thus a clear-cut test of allegiance to 
the revolutionary political system was provided, and tribunals 
competent to deal with refractory citizens were authorized to 

Independence, Union, and Self-Government 2j 

apply the test.^ The Revolutionists, consciously or not, were 
burning their bridges behind them. 

The first Congress, furthermore, recommended the call of a 
second Congress for the purpose of continuing the work thus 
begun; and, acting on this suggestion, the revolutionary bodies 
in the colonies, organized in the form of the old assembHes, or 
conventions, or committees, selected the delegates to a new 
Congress. This time the instructions were a Uttle more deter- 
mined in tone, and there was less talk about reconciliation and 
legal measures. The Massachusetts and New York instructions 
spoke of the restoration of harmony, but likewise of the firm and 
secure estabHshment of American rights and privileges; New 
Hampshire gave "full and ample power in behalf of this province 
to consent and agree to all measures which shall be deemed neces- 
sary to obtain redress of American grievances"; and the Con- 
necticut instructions authorized them ''to join, consult, and 
advise with other delegates on prouer measures for advancing 
the best good of the colonies." 

When this second Congress met in Philadelphia on May lo, 
1775, the cause of Revolution had advanced beyond the stage 
of mere negotiation. Within two months, Ethan Allen's troops 
took Fort Ticonderoga "in the name of the Great Jehovah and 
the Continental Congress," the battle of Bunker Hill was fought, 
and Washington was called to the command of the American 
troops. In the midst of the crisis. Congress seized and exercised 
sovereign powers; it assumed the direction of the war; e^itered 
into diplomatic negotiations mth other countries; declared in- 
dependence,^ regulated common concerns; raised funds; and 
finally designed a firmer national union in the form of the 
Articles of Confederation. It was not an assembly of delegates 
formally chosen and instructed by legally constituted states; it 
was the central organ, not of colonies or of states, but of that 
portion of the American population that was committed to the 
cause of Revolution. 

* On the political significance of the first Continental Congress, see 
C. L. Becker, History of Political Parties in the Province of New York, 
1760-76, University of Wisconsin Publications, 1909. 

^For the Declaration of Independence, see Readings, p. 21. 

26 American Government and Politics 

Union under the Articles of Confederation 

The work of the second Congress had scarcely opened before 
the boldest of the leaders began to urge that independence was 
inevitable, and that it should be accompanied by confederation 
and negotiations with foreign powers.^ As early as July 21, 
1775, the Congress resolved itself into a committee of the whole 
to take into consideration the state of America, and Dr. Franklin 
submitted a draft of a plan for confederation. Under the stress 
of the conflict without, Congress was compelled to postpone 
the immediate discussion and completion of the union, and it 
was not until the summer of the following year, June 11, 1776, 
that a committee was appointed to prepare articles of confedera- 
tion. The report of this committee made about one month later 
was then the subject of intermittent and lengthy debates. 

The report of the committee to the effect that, in determining 
all questions, each colony should have one vote, gave rise to a 
spirited discussion. Dr. Franklin urged that if the smaller 
colonies gave equal money and men they should have equal 
votes, and advocated that votes should be in proportion to num- 
bers. FrankUn was supported by Dr. Rush, who represented 
the strong nationalist feeling, and made a national plea against 
the doctrine that the states were equal. "It will tend," he said, 
"to keep up colonial distinctions. We are now a new nation. 
Our trade, language, customs, manners don't differ more than 
they do in Great Britain. The more a man aims at serving 
America, the more he serves his colony. It will promote factions 
in Congress and in the States; it will prevent the growth of 
freedom in America; we shall be loth to admit new colonies into 
the confederation. If we vote by numbers, liberty will be always 
safe. . . , We are dependent on each other, not totally inde- 
pendent States. . . . When I entered that door, I considered 
myself a citizen of America.'' '' 

The view of Franklin and Rush was not shared by the ma- 
jority of the Congress, however. Mr. Sherman urged that they 
were representatives of states, not oi individuals, though he 
was willing to see devised a system by which the states and 

* John Adams, Works, Vol. II, pp. 503-510. 

* Ihid., pp. 496 ff. 

Independence, Union, and S elf-Government 27 

individuals should both be represented. The Congress at last 
decided that each state retained " its sovereignty, freedom, 
and independence, and every power, jurisdiction, and right " 
not expressly granted to the United States in Congress as- 
sembled, and provided that in Congress each state, regardless 
of its area, population, and. wealth, should have one vote. 

Other questions, notably taxation,^ were thoroughly con- 
sidered and the final draft approved in November, 1777. On 
the day that the agreement was reached, the Articles, accom- 
panied by a long and eloquent letter urging ratification, were 
submitted to the legislatures of the states. The framers pointed 
out the difficulty involved in the formation of a permanent union 
accommodated to the opinions and wishes of the delegates of so 
many states differing in habits, produce, commerce, and internal 
police; and recommended that the state legislatures review 
their work "under a sense of the difficulty of combining in one 
general system the various sentiments and interests of a con- 
tinent divided into so many sovereign and independent com- 
munities, under a conviction of the absolute necessity of uniting 
all our councils and all our strength to maintain and defend our 
common liberties." ^ 

Notwithstanding the discouragements of the war then in 
progress and the imperative need for a closer cooperation to 
secure the independence declared in 1776, the states were slow 
in ratifying the Articles. It is true, eleven states accepted the 
plan of union within a year, but of these New York added a 
proviso that its acceptance should not be binding until the others 
had agreed, and some proposed alterations in the draft sub- 
mitted. It was not until the opening of 1781 that Maryland, 
which had so long abstained from ratification on account of the 
western land question, finally accepted the Articles of Confed- 
eration. At noon on March i of that year the roar of cannon 
from the ships of war in the Delaware announced to the world 
that the Union ''begun by necessity" had been "indissolubly 

The government provided by the Articles of Confederation, 
as we shall see, became more famous for its weakness and short" 

> Jefferson, Works (Ford Ed.), Vol. I, pp. 38 ff. 
' Secret Journals of Congress, Vol. I, pp. 362 flf. 

28 American Government and Politics 

comings than for its positive achievements.^ The management 
of the general interests of the United States was vested under 
the Articles in a Congress composed of not less than two nor more 
than seven delegates from each state, appointed as the state 
legislatures should direct, serving subject to recall at any time, 
and meeting annually. In this Congress, each state was given 
one vote and had to assume the expense of maintaining its dele- 
gates. No president or permanent executive was provided, 
but Congress was authorized to appoint a committee to serve 
during its recesses and discharge such duties as might be in- 
trusted to it. No confederate court was erected, but Congress 
was authorized to act as a court of appeal in cases of disputes 
between states, or provide for the creation of a special committee 
to try such causes on request. With this government, Hmited 
in its taxing and commercial powers, the states attempted to 
conduct their common business for a period of eight years with 
results that made inevitable a constitutional revolution.^ 

Formation of State Governments 

During the revolutionary conflict the colonial governments, 
regularly established under the authority of the British crown, 
broke down or passed into the possession of the popular party. 
From the royal province, the governor fled before the uprising 
of the people, and with his departure the executive and judicial 
branches in their higher ranges went to pieces. The New Hamp- 
shire constitution of 1776, for example, complained of "the 
sudden and abrupt departure of his Excellency John Wentworth, 
Esq., our late governor, and several of the council, leaving us 
destitute of legislation and no executive courts being open to 
punish criminal offenders; whereby the lives and property of 
the honest people of this colony are liable to the machinations 
and evil designs of wicked men." The New Hampshire as- 
sembly or lower house thereupon called a new congress, which 
was duly elected and assumed the powers of the government 
which had been thus abandoned. In Massachusetts, the royal 
governor summarily dissolved the assembly, and finding a new 
election, in September, 1774, resulting in the return of even 

^ See Readings, pp. 25-34, for the Articles of Confederation, 
* See Readings, p. 38, and below, chap. ill. 

Independence, Union, and Self-Government 29 

more contentious representatives, he annulled the writs oi 
election; but in vain, for the men thus chosen met in spite of 
the governor's orders and assumed full authority of government 
in the commonwealth. In Connecticut and Rhode Island, where 
there were no royal governors to dissolve the assembhes, and 
in the proprietary colonies of Pennsylvania and Delaware, where 
such authority was not exercised by the governor, the assemblies, 
purged of the loyalist element, took charge of directing the work 
of the Revolution. As a Pennsylvania Revolutionist wrote in 
1 775) "we must esteem it a particular happiness that we have 
a House of Assembly which from our constitution cannot be 
dissolved and which coincides with the [continental] Congress 
in the opposition to an arbitrary court." ^ Whatever the form, 
each colony during the Revolution had a legislature, congress, 
or convention chosen in some fashion by the supporters of the 
American cause. Sometimes the assembly was elected by popu- 
lar vote, royahsts being excluded; sometimes the members were 
chosen by local meetings of Revolutionists; and sometimes 
by town authorities. These provisional assembhes seized on 
all the powers of government in their respective jurisdictions, 
made laws, levied taxes, raised troops, and directed the Revo- 

For a few months at the opening of the contest with the mother 
country, while the future was uncertain and return to the old 
allegiance was not impossible, the colonists were at a loss to 
determine on just the form of government required by the 
situation. Under these circumstances, the provincial conven- 
tion of Massachusetts, then serving as the provisional govern- 
ment of that colony, apphed to the Congress at Philadelphia in 
May, 1775, for expHcit instructions concerning the organization 
of a more regular government. To this request. Congress re- 
plied advising the convention that it was not bound by the late 
act of Parhament altering the charter of Massachusetts, and 
requesting it to ask the towns entitled to representation to 
choose their regular delegates to a new assembly which should 
act as the government until a royal governor could be secured 
who would obey the terms of the charter. The convention 
comphed with this advice, and thus instituted a government 

* Force, American Archives, Fourth Series, Vol. Ill, p. 1410, 

30 American Government and Politics 

which remained in power until 1780, when the state constitution 
was put into force. 

The action of Massachusetts was followed in the autumn of 
that year (1775) by applications from New Hampshire, Virginia, 
and South Carolina for instructions, to which the Congress replied 
advising them to " call a full and free representation of the people, 
in order to form such a form of government as, in their judgment, 
would best promote the happiness of the people and most effect- 
ually secure peace and good order in their provinces during the 
continuance of the dispute with Great Britain." 

In response to this advice, the temporary provincial conven- 
tion in New Hampshire ordered a general election of delegates 
to a new convention empowered to assume the government under 
the direction of Congress for one year, and this new convention, 
as soon as it met, drew up a form of government to '' continue 
during the present unhappy and unnatural contest with Great 
Britain." Declaring that they would rejoice in reconciliation 
with the mother country, they nevertheless committed themselves 
to the care of the Continental Congress in whose wisdom and 
prudence they confided. This brief and fragmentary instru- 
ment, drawn up by men who could not foretell the outcome of 
the conflict then raging around them, remained the constitu- 
tion of New Hampshire until after the establishment of peace, 
when it was replaced by the new and more elaborate instru- 
ment of 1784. South Carolina likewise followed the suggestion 
of Congress and drew up, in March, 1776, a constitution 
designed to serve until ''an accommodation of the unhappy 
differences between Great Britain and America" could be ob- 
tained. Neither of these instruments was submitted for popu- 
lar ratification, and neither was a state constitution, properly 
speaking, for both contemplated a possible return to the former 

At length, in May, 1776, about two months before the formal 
Declaration of Independence, Congress, aware that such a step 
was inevitable, issued a general recommendation " to the respec- 
tive assemblies and conventions of the United Colonies, where 
no government sufficient to the exigencies of their affairs has 
been hitherto established, to adopt such government as shall in 
the opinion of the representatives of the people best conduce 
to the happiness and safety of their constituents in particular 

Independence, Union, and Self-Government 3 1 

and America in general." ^ This recommendation met with 
general approval among the Revolutionists, and before the ex- 
piration of a year Virginia, New Jersey, Pennsylvania, Delaware, 
Maryland, Georgia, and New York had drafted new instruments 
of government as states, not as colonies uncertain of their des- 
tiny. Though Virginia and New Jersey completed their con- 
stitutions before the Fourth of July, they declared the dominion 
of Great Britain at an end. Virginia simply repudiated the 
authority of George III, and New Jersey expressly said in the 
written instrument that "all civil authority under him is neces- 
sarily at an end." Connecticut and Rhode Island, deeming the 
government they possessed under their ancient charters sufficient 
for their needs, drew up no new instruments, but merely renounced 
their allegiance to George III and continued their old systems 
without any structural change. South CaroUna, in view of the 
temporary character of the document drafted in 1776, drew up a 
new and more complete constitution in 1778, and Massachu- 
setts, with more deUberation, put into effect in 1780 a constitu- 
tion which in its fundamental principles remains unchanged 
to-day — the original instrument having never been reorgan- 
ized. Thus the transition from colonies to states was completed, 
but in no instance was the issue submitted to popular approval 
at the polls. 

So irregular were the methods pursued by the Revolutionists 
of the various states in drawing up their constitutions that it is 
well-nigh impossible to make any general statement true of all 
of them, except that Delaware and Massachusetts were the only 
states that had their constitutions framed by regularly organized 
conventions summoned for that special purpose and confining 
their activities to the single function of framing an instrument 
of government. In all of the other colonies, the bodies that 
drafted the constitutions were primarily engaged in the main- 
tenance of orderly government during the crisis and in meeting 
the demands which fell upon them through the exigencies of 

The procedure, however, may be illustrated by the events in 
Pennsylvania. There the " Committee of the City and Liber- 
ties of Philadelphia," a revolutionary and voluntary body, in pur- 

^ Readings, p. 35. 

32 American Government and Politics 

pursuance of the advice of Congress given in May, 1776, d>e» 
spatched to the county committees circular letters asking the 
appointment of delegates to a provincial conference. In response 
to this call, the convention, composed of ninety-seven members, 
assembled in the city of Philadelphia on June 18, and after due 
deliberation decided that a special convention should be called 
for the purpose of drafting the constitution, and that it should 
be composed of eight representatives from the city of Phila- 
delphia and each of the counties. 

In spite of their declaration that all authority came from the 
people, the preUminary conference at Philadelphia had no inten- 
tion of admitting all of the people to a vote in the election of the 
delegates to the coming constitutional convention. On the con- 
trary they expressly excluded such as were not county or provin- 
cial tax-payers, those who would not take an oath to support 
the Revolutionary cause, and those who had been pubUshed by 
the committee of public safety as enemies to the liberties of Amer- 
ica. What proportion of the adult males the voters, under 
these strict limitations, actually composed, it is impossible to 
determine, but it is safe to assume that the work of transforming 
the colony into a state was accomplished by an energetic minor- 
ity. Moreover, the constitution which the new convention com- 
pleted in September, 1776, was not submitted to the people for 
popular ratification. 

A somewhat similar process was followed in Maryland,^ where 
the provisional revolutionary congress, on receipt of the instruc- 
tions of Congress, resolved that "A new convention be elected 
for the express purpose of forming a new government by the au- 
thority of the people only and enacting and ordering all things for 
the preservation, safety, and general welfare of this colony.'* 
The call for the election of the new convention, in addition to 
excluding the "enemies of the Hberties of America," placed 
restrictions on the suffrage as follows: "All freemen above 
twenty-one years of age, being freeholders of not less than fifty 
acres of land or having visible property in this colony to the 
value of £40 sterUng at least, and no others be admitted to vote 
for representatives to serve in the said convention for the said 
counties and districts, and the town of Baltimore aforesaid; 

* See Readings f p. 36. 

Independence, Union, and Self-Government 33 

and that all freemen above twenty-one years of age, owning a 
whole lot of land in the said city of Annapolis, or having a visible 
estate of £20 sterhng at the least within this province or having 
served five years to any trade within the said city and being a 
housekeeper, and no others be admitted to vote for representa- 
tives to serve in the said convention for the said city." The 
constitution drafted by the convention elected by these voters 
was not submitted for ratification on its completion in Novem- 
ber, 1776. 

Thus America came out of the Revolution a union of thirteen 
states, loosely bound together under the Articles of Confedera- 
tion. Each'state, except Rhode Island and Connecticut which 
continued their colonial charters, had a new written constitu- 
tion based for practical purposes upon the precedents which had 
been estabHshed during colonial times. Seven years of war 
and the overthrow of British dominion had left the social order 
essentially imchanged. 



Quite naturally the men who led in stirring up the revolt 
against Great Britain and in keeping the fighting temper of the 
Revolutionists at the proper heat were the boldest and most 
radical thinkers — men like Samuel Adams, Thomas Paine, 
Patrick Henry, and Thomas Jefferson. They were not, generally 
speaking, men of large property interests or of much practical 
business experience. In a time of disorder, they could consist- 
ently lay more stress upon personal liberty than upon social 
control; and they pushed to the extreme limits those doctrines 
of individual rights which had been evolved in England during 
the struggles of the small landed proprietors and commercial 
classes against royal prerogative, and which corresponded to the 
economic conditions prevailing in America at the close of the 
eighteenth century. They associated strong government with 
monarchy, and came to beheve that the best political system was 
one which governed least. A majority of the radicals viewed all 
government, especially if highly centralized, as a species of evil, 
'tolerable only because necessary and always to be kept down 
to an irreducible minimum by a jealous vigilance. Jefferson 
put the doctrine in concrete form when he declared that he pre- 
ferred newspapers without government to government without 
newspapers. The Declaration of Independence, the first state 
constitutions, and the Articles of Confederation bore the impress 
of this philosophy. In their anxiety to defend the individual 
against government interference and to preserve to the states 
a large sphere of local autonomy, these Revolutionists had set 
up a system too weak to achieve even the primary objects of 
government; namely, national defence, the protection of property, 
and the advancement of commerce. They were not unaware 
of the character of their handiwork, but many believed with 
Jefferson that "man was a rational animal endowed by nature 
with rights and with an innate sense of justice and that he could 


The Establishment of the Federal Constitution . 35 

be restrained from wrong and protected in right by moderate 
powers confided to persons of his own choice." ^ Occasional 
riots and disorders, they held, were preferable to too much 

The new American political system based on these doctrines 
had scarcely gone into effect before it began to incur opposition 
from many sources. The close of the Revolutionary struggle 
removed the prime cause for radical agitation and brought a new 
group of thinkers into prominence. When independence had 
been gained, the practical work to be done was the maintenance 
of social order, the payment of the pubUc debt, the provision 
of a sound financial system, and the estabUshment of conditions 
favorable to the development of the economic resources of the 
new country. The men who were principally concerned in this 
work of peaceful enterprise were not the philosophers, but men 
of business and property and the holders of public securities — 
"a strong and intelligent class possessed of unity and informed 
by a conscious solidarity of interests." - For the most part they 
had had no quarrel with the system of class rule and the strong 
centralization of government which existed in England. It 
was on the question of policy, not of governmental structure, that 
they had broken with the British authorities. By no means all 
of them, in fact, had even resisted the policy of /the mother 
country, for within the ranks of the conservatives were large 
numbers of Loyalists who had remained in America, and, as was 
to have been expected, cherished a bitter feeling against the 
Revolutionists, especially the radical section which had been 
boldest in denouncing the English system root and branch. 
In other words, after the heat and excitement of the War of 
Independence were over and the new government, state and 
national, was tested by the ordinary experiences of traders, 
financiers, and manufacturers, it was found inadequate, and 
these groups accordingly grew more and more determined to 
reconstruct the poUtical system in such a fashion as to make it 
subserve their permanent interests. 

^ Readings, p. 93. ' Wilson, Division and Reunion, p. 12. 

36. American Government and Politics 

Reasons for the Failure of the Articles of Confederation ^ 

To understand the seriousness of the situation for this influ- 
ential portion of the population, it is necessary to examine some- 
what closely the precise ways in which the confederate system 
failed to afford adequate guarantees to property and commerce. 

I. The most obvious defect of the government under the 
Articles was its inability to pay even the interest on the public 
debt, most of which had been incurred in support of the war. 
IrTspite of the most heroic efforts, the arrears on that portion of 
the debt held by American citizens increased within five years 
(1784-89) from $3,109,000 to $11,493,858, and at the same 
time the arrears on the foreign debt multiplied about twenty-five 
fold. In short, a large group of public creditors were faihng to 
receive the interest due them on government securities. It 
would have been exercising almost superhuman faculties for them 
to have quietly acquiesced in the indefinite continuance of such 
a government and such a policy. 

Indeed, the system of raising money provided by the Articles 
of Confederation was so constructed as to give them no hope 
that, during its continuance, the long-delayed payments could 
ever be effected. The confederate Congress had no immediate 
taxing power: all charges ol war^and all other expenses were to 
He defrayed out of a common treasury supplied through levies 
made by the legislatures of the several states in proportion to the 
value of the land within each state. Limited to one form of 
taxation ^ — direct taxation by quotas at that — and dependent 
upon the will of the state legislatures for all payments, the con- 
federate Congress really could do nothing^^ut recommend con- 
tributions, and was in fact compelled to beg from door to door 
only to meet continued rebuffs, and to sink deeper and deeper 
in debt from year to year. 

Not only was the Congress thus limited in its resources to 
quotas imposed on fhe states; the very principle of apportion- 
ment according to the value of lands, buildings, and improve- 

1 For Madison's concise summary, see Readings, p. 38. 

2 Congress determined the amount to be raised, and each levy was to be 
supplied by the several states in proportion to the value of their lands and 
improvements. For the movement for the Constitution, see Beard, An 
Economic Interpretation of the Cotistitution of the United States. 

The Establishment of the Federal Constitution 2t7 

ments was itself unjust as measured by the prevailing doctrines 
of taxation. ''The wealth of nations," it was urged in The 
Federalist, "depends upon an infinite variety of causes. . . . 
There can be no common measure of national wealth, and, of 
course, no general or stationary rule by which the ability of a 
state to pay taxes can be determined. The attempt, therefore, 
to regulate the contributions of the members of the confederacy 
by any such rule cannot fail to be productive of glaring inequality 
and extreme oppression. This inequality would of itself be 
sufficient in America to work the eventual destruction of the 
Union, if any mode of enforcing compliance with its requisitions 
could be devised." ^ 

This objection that the system of taxation was unjust only 
added a welcome sanction to the natural disUke of states to pay 
direct contributions in a lump sum to a distant central govern- 
ment — a dislike which Bismarck discovered long afterward in 
his experience with the matricular contributions in the German 
Empire. Consequently the states of the Union vied with each 
other in delaying the payments of their quotas into the common 
treasury. As the modern holder of personal property pleads 
the evasions of others as a justification for not paying taxes on 
the full valuation of his own property, so each backward state 
pleaded the delays of other states, and hesitated to pay even 
when it could, on the ground that it might contribute more than 
its share. During a period of about four years, from November 
II, 1781, to January i, 1786, Congress laid on the states more 
than $10,000,000 in requisitions, and received in payment less 
than one-fourth of the amount demanded. During the fourteen 
months preceding the formation of the new federal Constitution 
less than half a million was paid into the confederate treasury 
— not enough to pay the interest on the foreign debt alone. 
Had it not been for the loans which the bankers of Holland were 
wiUing to make to the struggHng republic, the confederacy would 
surely have been confronted by bankruptcy and total ruin before 
rehef came. 

2. The dissatisfaction of the financial interests was more 
than equalled by the dissatisfaction of tradeTs and manufacturers, 
both in America and Europe, with the unbusiness-like character 

» The Federalist, No. XXI. 

38 American Government and Politics 

of the confederate Congress. It is true that the Congress could 
regulate foreign commerce by making treaties with foreign powers 
and that the states were forbidden to lay any imposts or duties 
which might interfere with certain of these agreements, but in 
\ practice the confederate government was unable to enforce 
\ treaty stipulations on the unwilUng states that insisted on regu- 
lating commerce in their own way. The states bid against one 
another for trade; they laid duties on goods passing through their 
limits, thus stirring up strife among themselves; and, what was 
no less disastrous, they lost the advantages which a reasonable 
degree of cooperation would have gained.^ 

The disordered state of American commerce under the Articles 
of Confederation can best be described in the feUcitous language 
of John Fiske: "The different states, with their different tariff 
and tonnage acts, began to make commercial war upon one 
another. No sooner had the other three New England states 
virtually closed their ports to British shipping than Connecticut 
threw hers wide open, an act which she followed up by laying 
duties upon imports from Massachusetts. Pennsylvania dis- 
criminated against Delaware, and New Jersey, pillaged at once 
by both her greater neighj^ors, was compared to a cask tapped at 
both ends. The conduct of New York became especially selfish 
and blameworthy. ... Of all the thirteen states, none behaved 
worse except Rhode Island. 

"A single instance, which occurred early in 1787, may serve 
as an illustration. The city of New York had long been supplied 
with firewood from Connecticut, and with butter and cheese, 
chickens and garden vegetables, from the thrifty farms of New 
Jersey. This trade, it was observed, carried thousands of dollars 
out of the city and into the pockets of detested Yankees and 
despised Jerseymen. It was ruinous to domestic industry, 
said the men of New York. . . . Acts were accordingly passed, 

»"No nation acquainted with the nature of our political system," 
declared Hamilton in No. XXII of The Federalist, "would be unwise 
enough to enter into stipulations with the United States, conceding on 
their part privileges of importance, while they were apprised that en- 
gagements on the part of the union might at any moment be violated by 
its members; and while they found from experience that they might enjoy 
every advantage they desired in our markets without granting us any in 
return, but such as momentary convenience might suggest." 

The Establishment of the Federal Constitution 39 

obliging every Yankee sloop which came down through Hell 
Gate, and every Jersey market boat which was rowed across 
from Paulus Hook to Cortlandt Street, to pay entrance fees and 
obtain clearances at the custom-house, just as was done by ships 
from London or Hamburg ; and not a cartload of Connecticut 
firewood could be delivered at the back door of a country house 
in Beekman Street until it should have paid a heavy duty. . . . 
The New Jersey legislature made up its mind to retahate. The 
city of New York had lately bought a small patch of ground on 
Sandy Hook, and had built a Hghthouse there. . . . New 
Jersey gave vent to her indignation by laying a tax of $1800 a 
year on it. Connecticut was equally prompt. At a great meet- 
ing of business men, held at New London, it was unanimously 
agreed to suspend all commercial intercourse with New York. 
Every merchant signed an agreement, under peiialty of $250 
for the first offence, not to send any goods whatever into the 
hated state for a period of twelve months." ^ 

3. The moneta^ systemjinder the Articles of Confederation, 
was even in worse confusion, if possible, tFan commerce. During 
the~^voIul:ion, Congress had created an enormous amount of 
paper money which so speedily declined in value that in 1780 
one paper dollar was worth less than two cents in specie. It 
too'k'eleven doliai-sl5f this'mohey to buy a pound of brown sugar 
in Virginia; seventy-five dollars for a yard of linen; and one 
hundred dollars for a pound of tea. Jefferson records that he 
paid his physician $3000 for two calls in 1781, and gave $355.50 
for three quarts of brandy. After the Revolution, the great 
majority of states continued to issue paper money without any 
currency basis. In Rhode Island a most extraordinary conflict 
occurred over the control of the monetary system. The farmers, 
being in a majority, secured the passage of a law authorizing the 
issuance of money to themselves on the basis of mortgages against 
their farms. The merchants refused to accept this paper, and 
it promptly decHned to about one-sixth of its nominal value. 
Heavy penalties then were placed upon those who would not 
accept it, but without avail. Merchants closed their shops 
rather than yield, and farmers refused to bring produce to town 
in the hope of starving the merchants out. In nearly every 

^ J. Fiske, The Critical Period of American History, pp. 144-147. 

40 American Government and Politics 

state determined efforts were made to force creditors to accept 
depreciated paper in payment of lawful debts. It is small won- 
der, therefore, that the framers of the federal Constitution in- 
serted clauses in that instrument forbidding states to emit bills 
of credit, make anything but gold and silver coin a legal tender 
in payment of debts, or pass any law impairing the obligation of 
contracts. It is small wonder also that merchants and creditors 
everywhere welcomed this measure of relief when the new Con- 
stitution was laid before them for ratification. 

4. Shays' rebellion in Massachusetts showed that grave dangers 
to pubHc order might arise in any state and that the duly con- 
stituted authorities might be overthrown by violence if no 
assistance could be secured from neighboring states or the fed- 
eral authority. The heavy public debt in Massachusetts had 
necessitated heavy taxes, and the attempt of creditors to recover 
debts due them added to popular discontent. "A levelHng, 
licentious spirit," says Mr. Curtis, "a restless desire for change, 
and a disposition to throw down the barriers of private rights, at 
length broke forth in conventions, which first voted themselves 
to be the people and then declared their proceedings to be con- 
stitutional. At these assemblies the doctrine was publicly 
broached that property ought to be common, because all had 
aided in saving it from confiscation by the power of England. 
Taxes were voted to be unnecessary burdens, the courts of jus- 
tice to be intolerable grievances, and the legal profession a nui- 
sance. A revision of the [state] constitution was demanded, in 
order to abolish the Senate, reform the representation of the 
people, and make all the civil officers eligible by the people. . . . 
Had the government of the state been in the hands of a person 
less firm and less careless of popularity than Bowdoin it would 
have been given up to anarchy and civil confusion." ^ 

5. The impotence which characterized the confederate gov- 
ernment in enforcing measures of taxation and commercial 
treaties against recalcitrant states extended throughout the whole 
domain of its nominal authority. It was dependent almost 
wholly upon the states for the enforcement of its laws, and yet it 
had no express power to exact obedience from them or to punish 
them by pecuniary penalties or suspension of privileges. Who- 

* Constitutional History of the United States, Vol. I, p. 181. 

The Establishment of the Federal Constitution 4I 

ever argued that such a right was necessarily inherent in every 
government was met by the contention that the Articles them- 
selves provided "that each state retained every power, juris- 
dictionj_and right notexpresslyHelegated to the United States in 
"Congress assembled^" Indeed, as Madison afterwards pointed 
out in the convention at Philadelphia, "the use of force against 
a state would look more Hke a declaration of war than an infhc- 
tion of punishment and would probably be considered by the 
party attacked as a dissolution of all previous compacts by which 
it might be bound." ^ Thus was afforded "the extraordinary 
spectacle of a government destitute even of a shadow of a con- 
stitutional power to enforce the execution of its own laws." ^ 

6. This reduction of the confederate government's power to 
a shadow was the logical result of what Hamilton regarded as the 
great and radical vice of the Articles of Confederation; namely, 
the principle of legislation for states in their collective or corpo- 
rate capacity as distinguished from the individuals of which they 
were composed.^ Subject to the rule of apportionment. Con- 
gress could demand an unlimited supply of money and men from 
the states, but in both these important matters, upon which, in 
final analysis, the foundations of all government rest. Congress^ 
could bring no pressure to bear upon any individual. It was 
pra:cticalty--restTicted^t6~Tfansactions with states — corporate 
entities — represented by transient and often hostile legislatures, 
so that the complete enforcement of any measure of taxation 
required the concurrence of thirteen different bodies — a con- 
juncture which was well-nigh impossible to secure in practice. 
For the purpose of safeguarding and advancing the interests of 
a nation with such vast natural resources at its command, a 
more inadequate instrument could scarcely be imagined; and the 
gravity of the situation was all the more serious because the 
Articles required the consent of every state to the slightest amend- 
ment. It was not merely the Confederation that failed — the 
entire system, state and national, did not correspond to the real 
and permanent interests of that portion of the population who 
by reason of their property and intelligence possessed both the 
will and the capacity for concerted action on a scale large enough 

> Elliot's Debates, Vol. V, p. 140. ^ j^j^^ Federalist, No. XXI. 
3/^^j(/., No. XV. 

42 American Government and Politics 

to overthrow the confederate government and set up an adequate 
system of union in its stead. 

The Movement for Constitutional Revision 

The Congress of the Confederation was not long in discovering 
the true character of the futile authority which the Articles had 
conferred upon it. The necessity for new sources of revenue 
became apparent even while the struggle for independence was 
yet undecided, and, in 1781, Congress carried a resolution to the 
effect that it should be authorized to lay a duty of five per cent 
on certain goods. This moderate proposition was defeated 
because Rhode Island rejected it on the grounds that "she 
regarded it the most precious jewel of sovereignty that no state 
shall be called upon to open its purse but by the authority of 
the state and by her own officers." Two years later Congress 
prepared another amendment to the Articles providing for cer- 
tain import duties, the receipts from which, collected by state 
officers, were to be applied to the payment of the public debt; 
but three years after the introduction of the measure, four states, 
including New York, still held out against its ratification, and 
the project was allowed to drop. At last, in 1786, Congress in 
a resolution declared that the requisitions for the last eight years 
had been so irregular in their operation, so uncertain in their 
collection, and so evidently unproductive, that a reliance on them 
in the future would be no less dishonorable to the understandings 
of those who entertained it than it would be dangerous to the wel- 
fare and peace of the Union. Congress, thereupon, solemnly 
added that it had become its duty "to declare most explicitly 
that the crisis had arrived when the people of the United States, 
by whose will and for whose benefit the federal government 
was instituted, must decide whether they will support their 
rank as a nation by maintaining the public faith at home and 
abroad, or whether for the want of a timely exertion in establish- 
ing a general revenue and thereby giving strength to the Con- 
federacy, they will hazard not only the existence of the Union 
but of those great and invaluable privileges for which they have 
so arduously and so honorably contended." 

In fact, the Articles of Confederation had hardly gone into 
effect before the leading citizens also began to feel that the powers 

The Establishment of the Federal Constitution 43 

of Congress were wholly inadequate. In 1780, even before 
their adoption, Alexander Hamilton proposed a general con- 
vention to frame a new constitution, and from that time forward 
he labored with remarkable zeal and wisdom to extend and popu- 
larize the idea of a strong national government. Two years 
later, the assembly of the state of New York recommended a 
convention to revise the Articles and increase the power of 
Congress. In 1783, Washington, in a circular letter to the gov- 
ernors,^ urged that it was indispensable to the happiness of the 
individual states that there should be lodged somewhere a su- 
preme power to regulate and govern the general concerns of the 
confederation. Shortly afterward (1785), Governor Bowdoin, 
of Massachusetts, suggested to his state legislature the advis- 
ability of calling a national assembly to settle upon and define 
the powers of Congress; and the legislature resolved that the 
government under the Articles of Confederation was inefficient 
and should be reformed; but the resolution was never laid before 

In the same year, however, that the Massachusetts resolution 
was passed, commissioners, selected by Maryland and Virginia 
for the purpose of reaching an agreement respecting the naviga- 
tion of the Potomac, recommended the appointment of a new 
commission with power to arrange a tariff schedule, subject to 
the consent of Congress, to be enforced by both states. There- 
upon, Virginia in\'ited all the other states to send delegates to 
a convention at Annapolis to consider the question of duties on 
imports and commerce in general. When this convention as- 
sembled in 1786, delegates from only five states were present, 
and they were disheartened at the limitations on their powers 
and the lack of interest the other states had shown in the project. 
With remarkable foresight, however, Alexander Hamilton seized 
the occasion to secure the adoption of a recommendation advising 
the states to choose representatives for another convention to 
meet in Philadelphia the following year "to consider the Articles 
of Confederation and to propose such changes therein as might 
render them adequate to the exigencies of the imion." This 
recommendation was cautiously worded, for Hamilton did not 

^ This letter is printed along with other important materials bearing 
on the movement for the Constitution in Professor Lawrence Evans' 
Writings of Washington (1908). 

44 American Government and Politics 

want to raise any unnecessary alarm. Accordingly no general 
reconstruction of the political system was suggested; the Articles 
of Confederation were merely to be "revised"; and the amend- 
ments were to be approved by the state legislatures as provided 
by that instrument. 

The proposal of the Annapolis convention was transmitted to 
the state legislatures and laid before Congress. Congress there- 
upon resolved in February, 1787, that a convention should be 
held for the sole and express purpose of revising the Articles of 
Confederation and reporting to itself and the legislatures of the 
several states such alterations and provisions as would when 
agreed to by Congress and confirmed by the states render the 
federal constitution adequate to the exigencies of government 
and the preservation of the Union.^ 

In pursuance of this call, delegates to the new convention were 
chosen by the legislatures of the states or by the governors in 
conformity to authority conferred by the legislative assemblies.^ 
The delegates were given instructions of a general nature by 
their respective states, none of which, apparently, contemplated 
any very far-reaching changes. In fact, almost all of them 
expressly limited their representatives to a mere revision of the 
Articles of Confederation.^ For example, Connecticut authorized 
her delegates to represent and confer for the purpose mentioned 
in the resolution of Congress and to discuss such measures " agree- 
ably to the general principles of repubUcan government" as they 
should think proper to render the Union adequate. Delaware, 
however, went so far as to provide that none of the proposed alter- 
ations should extend to the fifth part of the Articles of Confed- 
eration guaranteeing that each state should be entitled to one 

The National Constitutional Convention of I'/Sy 

It was a truly remarkable assembly of men that gathered 
in Philadelphia in May, 1787, to undertake the work of recon- 
structing the American system of government. It is not merely 

* For this call, see Readings, p. 43. 

2 Rhode Island alone was unrepresented. In all, sixty-two delegates 
were appointed by the states ; fifty-five of these attended sometime dur* 
ing the sessions; but only thirty-nine signed the finished document. 

3 For example, see the New York instructions, Readings, p. 44. 

The Establishment of the Federal Constitution 45 

patriotic pride that compels one to assert that never in the history 
of assemblies has there been a convention of men richer in politi- 
cal experience and in practical knowledge, or endowed with a 
profounder insight into the springs of human action and the 
intimate essence of government. It is indeed an astounding 
fact that at one time so many men skilled in statecraft could be 
found on the very frontiers of civiUzation among a population 
numbering about four million whites. It is no less a cause for 
admiration that their instrument of government should have 
survived the trials and crises of a century that saw the wreck of 
more than a score of paper constitutions. On the memorable 
roll of that convention were Elbridge Gerry, Rufus King, Roger 
Sherman, Alexander Hamilton, Oliver Ellsworth, Benjamin 
Franklin, Robert Morris, Gouverneur Morris, William Paterson, 
James Wilson, George Washington, Edmund Randolph, James 
Madison, John Rutledge, and the two Pinckneys — to mention 
only a few whose names have passed indehbly into the records of 
American history. 

All the members had had a practical training in politics. 
Washington, as commander-in-chief of the revolutionary forces, 
had learned well the lessons and problems of war, and mastered 
successfully the no less difficult problems of administration. 
The two Morrises had distinguished themselves in grappHng 
with financial questions as trying and perplexing as any which 
statesmen had ever been compelled to face. Seven of the delegates 
had gained poUtical wisdom as governors of their native states; 
and no less than twenty-eight had served in Congress either 
during the Revolution or under the Articles of Confederation. 
There were men trained in the law, versed in finance, skilled in 
administration, and learned in the poHtical philosophy of their 
own and all earher times. Moreover, they were men destined 
to continue pubhc service under the government which they 
had met to construct — Presidents, Vice-Presidents, heads of 
departments, justices of the Supreme Court, were in that imposing 
body. They were equal to the great task of constructing a 
national system strong enough to defend the country on land and 
sea, pay every dollar of the lawful debt, and afford sufficient 
guarantees to the rights of private property. 

The criticism has been advanced that this assembly of great 
men was more interested in strong government than in democ- 

46 American Government and Politics 

racy. It must be remembered, however, that they were con- 
vened not to write a Declaration of Independence, but to frame a 
government which would meet the practical issues that had arisen 
under the Articles of Confederation. The objections they enter- 
tained to direct popular government, and they were undoubtedly 
many, were based upon their experience with popular assemblies 
during the immediately preceding years. With many of the 
plain lessons of history before them, they naturally feared that 
the rights and privileges of the minority would be insecure if the 
principle of majority rule was definitely adopted and provisions 
made for its exercise. Furthermore, it will be remembered that 
up to that time the right of all men, as men, to share in the gov- 
ernment had never been recognized in practice. Ever)rwhere in 
Europe the government was in the hands of a ruHng monarch or 
at best a ruling class; ever3rwhere the mass of the people had 
been regarded principally as an arms-bearing and tax-paying 
multitude, uneducated, and with little hope or capacity for ad- 
vancement. Two years were to elapse after the meeting of the 
grave assembly at Philadelphia before the transformation of the 
Estates General into the National Convention in France opened 
the floodgates of revolutionary ideas on human rights before 
whose rising tide old landmarks of government are still being 
submerged. It is small wonder, therefore, that under the cir- 
cumstances many of the members of that august body held 
popular government in slight esteem and took the people into 
slight consideration — enough ''to inspire them with the neces- 
sary confidence," as Mr. Gerry frankly put it.^ 

Indeed, every page of the laconic record of the proceedings of 
the convention preserved to posterity by Mr. Madison shows 
conclusively that the members of that assembly were not seek- 
ing to reahze any fine notions about democracy and equality, 
but were striving with all the resources of political wisdom at 
their command to set up a system of government that would be 
stable and efficient, safeguarded on one hand against the possi- 
bihties of despotism and on the other against the onslaught of 
majorities. In the mind of Mr. Gerry, the evils they had ex- 
perienced flowed "from the excess of democracy," and he con- 
fessed that while he was still repubUcan, he "had been taught 
by experience the danger of the levelling spirit." ^ Mr. Ran- 
^ Elliot's Debates, Vol. V, p. 160. 2 /^^ Vol. V, p. 136. 

The Establishment of the Federal Constitution 47 

dolph, in offering to the consideration of the convention his plan 
of government, observed "that the general object was to provide 
a cure for the evils under which the United States labored; that, 
in tracing these evils to their origin, every man had found it in 
the turbulence and folUes of democracy; that some check there- 
fore was to be sought for against this tendency of our govern- 
ments; and that a good Senate seemed most likely to answer 
the purpose." ^ Mr. Hamilton, in advocating a life term for 
Senators, urged that " all communities divide themselves into the 
few and the many. The first are rich and well born and the other 
the mass of the people who seldom judge or determine right." ^ 

Gouverneur Morris wanted to check the "precipitancy, change- 
ableness, and excess" of the representatives of the people by the 
abiUty and virtue of men "of great and estabHshed property — 
aristocracy; men who from pride will support consistency and 
permanency. . . . Such an aristocratic body will keiep down 
the turbulence of democracy." While these extreme doctrines 
were somewhat counterbalanced by the democratic principles of 
Mr. Wilson, who urged that " the government ought to possess, 
not only first, the force, but second the mind or sense of the people 
at large," Madison doubtless summed up in a brief sentence the 
general opinion of the convention when he said that to secure 
private rights against majority factions, and at the same time to 
preserve the spirit and form of popular government, was the 
great object to which their inquiries had been directed.^ 

They were anxious above everything else to safeguard the 
rights of private property against any leveUing tendencies on 
the part of the propertyless masses. Gouverneur Morris, in 
speaking on the problem of apportioning representatives, cor- 
rectly stated the sound historical fact when he declared: "Life 
and liberty were generally said to be of more value than property. 
An accurate view of the matter would, nevertheless, prove that 
property was the main object of society. ... If property, then, 
was the main object of government, certainly it ought to be one 
measure of the influence due to those who were to be affected by 
the government." * Mr. King also agreed that "property was 
the primary object of society; " ^ and Mr. Madison warned the 

^ Elliot's Debates, Vol. V, p. 138. ^ Readings, p. 47. 

^ The Federalist, No. X ; Readings, p. 50. 

* Elliot's Debates, Vol. V, p. 279. » Ihid., Vol. V, p. 280. 

48 American Government and Politics 

convention that in framing a system which they wished to last 
for ages they must not lose sight of the changes which the ages 
would produce in the forms and distribution of property. In 
advocating a long term in order to give independence and firm- 
ness to the Senate, he described these impending changes: "An 
increase of population will of necessity increase the proportion 
of those who will labor under all the hardships of life and secretly 
sigh for a more equal distribution of its blessings. These may 
in time outnumber those who are placed above the feeUngs of 
indigence. According to the equal laws of suffrage, the power 
will sUde into the hands of the former. No agrarian attempts 
have yet been made in this country, but symptoms of a levelling 
spirit, as we have understood, have sufficiently appeared, in a 
certain quarter, to give notice of the future danger." ^ And 
again, in support of the argument for a property qualification on 
voters, Madison urged: ''In future times, a great majority of the 
people will not only be without landed, but any other sort of 
property. These will either combine, under the influence of their 
common situation, — in which case the rights of property and 
the pubhc hberty will not be secure in their hands, — or, what 
is more probable, they will become the tools of opulence and am- 
bition; in which case there will be equal danger on another side." * 
Various projects for setting up class rule by the estabhshment of 
property qualifications for voters and officers were advanced in 
the convention, but they were defeated. On account of the 
diversity of opinion that prevailed, agreement was impossible, 
and it was thought best to trust this matter to the discretion and 
wisdom of the states. 

Nevertheless, by the system of checks and balances placed in 
the government, the convention safeguarded the interests of 
property against attacks by majorities. The House of Repre- 
sentatives, Mr. Hamilton pointed out, "was so formed as to 
render it particularly the guardian of the poorer orders of citi- 
zens," ^ while the Senate was to preserve the rights of property 
and the interests of the minority against the demands of the 
majority.* In the tenth number of The Federalist, Mr. Madison 
argued in a philosophic vein in support of the proposition that 

' Elliot's Debates, Vol. V, p. 243. ^ jj^^ ^oX. V, p. 387. 

3 Ihid., Vol. V, p. 244. ^ Ibid., Vol. V, p. 203. 

The Establishment of the Federal Constitution 49 

it was necessary to base the political system on the actual 
conditions of "natural inequality." Uniformity of interests 
throughout the state, he contended, was impossible on account of 
the diversity in the faculties of men, from which the rights of 
property originated; the protection of these faculties was the 
first object of government; from the protection of different and 
unequal faculties of acquiring property the possession of differ- 
ent degrees and kinds of property immediately resulted; from 
the influence of these on the sentiments and views of the respective 
proprietors ensued a division of society into different interests 
and parties ; the unequal distribution of wealth inevitably led to 
a clash of interests in which the majority was Hable to carry out 
its policies at the expense of the minority; hence, he added, in 
concluding this splendid piece of logic, "the majority, having 
such coexistent passion or interest, must be rendered by their 
number and local situation unable to concert and carry into 
effect schemes of oppression" ; and in his opinion it was the great 
merit of the newly framed Constitution that it secured the rights 
of the minority against "the superior force of an interested and 
overbearing majority." ^ 

Drafting a National Constitution 

The convention had not proceeded very far in the considera- 
tion of the problems before it when the question was raised as to 
whether the delegates were bound by their instructions to the 
mere amendment of the Articles of Confederation or were free 
to make a revolution in the political system. Mr. Paterson 
argued that the delegates were bound by their instructions : "If 
the Confederacy is radically wrong, let us return to our slates 
and obtain larger powers, not assume them ourselves. . . . Our 
object is not such a government as may be best in itself, but such 
a one as our constituents have authorized us to prepare and as 
they will approve." ^ Mr. Randolph, however, declared that he 
"was not scrupulous on the point of power. When the salvation 
of the repubhc was at stake, it would be treason to our trust not 
to propose what we found necessary." ^ With this view, Mr. 
Hamilton agreed: "We owed it to our country to do on this 

* Readings, p. 50. ^ Elliot's Debates, Vol. V, p. 194. 

3 Ihid., Vol. V, p. 197. 

50 American Government and Politics 

emergency whatever we should deem essential to its happiness. 
The states sent us here to provide for the exigencies of the Union. 
To rely on and propose any plan not adequate to these exigencies 
merely because it was not clearly within our powers would be 
to sacrifice the means to the end." ^ 

Fortunately for the cause of national union, these delegates 
threw off the restrictions placed upon them by their instructions, 
and frankly disregarded the fact that they had assembled merely 
to amend the Articles of Confederation, not to make a new instru- 
ment of government. They refused to be bound either by the 
letter or spirit of the Articles or their orders, for they even pro- 
vided that the new government should go into effect when rati- 
fied by nine states, whereas under the Articles unanimous approval 
was required for any amendment. In order that their purposes 
should not be discovered and thwarted by pubhc criticism, the 
convention sat behind closed doors; their proceedings were kept 
secret; and members were even forbidden to correspond with 
outsiders on the topics under discussion. Not until the draft 
was finished did the people know what the convention had done, 
and even then they did not know the secret forces which had 
caused the introduction of certain clauses, or the full intention 
of the framers as to the ways in which the new government was 
designed to work. 

A large majority of the convention had determined to estab- 
hsh a strong national government to take the place of the con- 
federate system, and to do this it was absolutely necessary to 
throw aside the fundamental features of the Articles of Con- 
federation, which, according to their instructions, they were 
assembled to amend. On May 30, 1787, five days after the 
opening of the convention, a resolution was adopted in the Com- 
mittee of the Whole, "that a national government ought to be 
estabhshed consisting of a supreme legislative, executive, and 
judiciary." ^ The distinction between a "federal and a national 
supreme government," was clearly explained by Gouverneur 
Morris. "The former," he said, was "a mere compact resting 
on the good faith of the parties," while the latter had "a com- 
plete and compulsive operation"; and he concluded by adding 
that "in all communities there must be one supreme power and 

» Elliot's Debates, Vol. V, p. 199. 2 Ibid., Vol. V, p. 134. 

The Establishment of the Federal Constitution 51 

one only." ^ Mr. Madison, in discussing the problem of repre- 
sentation, observed that ''whatever reason might have existed 
for the equaUty of suffrage when the Union was a federal one 
among sovereign states, it must cease when a national govern- 
ment should be put in their place." ^ Mr. Read of Delaware 
even went so far as to say that the national government must 
soon of necessity swallow up all the state governments; ^ and 
Mr. Wilson of Pennsylvania declared that he could not even admit 
the doctrine that when the colonies became independent of Great 
Britain they were independent of each other, and contended that 
the colonies were not declared to be free and independent states 
individually, but only unitedly.^ Mr. Hamilton went even fur- 
ther than the other members of the convention in his stanch 
adherence to the idea of a supreme national government; he 
advocated the appointment of state executives by the general 
government and wanted to give Congress the power to legislate 
on every matter whatsoever.^ 

That it was the desire of a majority of the convention to estal>_ 
Ksh a supreme national government is evidenced in nearly every 
page'cfThe debates." 'ThaFsuch was their intention was explicitly 
"HecTaTed by Luther Martin, of Maryland, in a letter to the legis- 
lature of his state justifying his conduct in withdrawing from 
the convention. He contended that the plan of government, 
as devised by the convention, was "a national not a federal gov- 
ernment," and one "calculated and designed not to protect and 
preserve but to aboUsh and annihilate the state governments." 
In criticising the advocates of a strong national government, he 
continued: " So far were the friends of the system from pretending 
that they meant it or considered it a federal system, that, at the 
question being proposed, ' that a union of the states merely federal 
ought to be the sole object of the exercise of the powers vested in 
the convention,' it was negatived by a majority of the members; 
and it was afterwards resolved, ' thc^t a national gojv^ermnent ought 
to be formed.' Afterwards, the word ' national ' was struck out by 
tliem because they thought the word might tend to alarm; and 
although now they who advocate this system pretend to call 
themselves federalists, in convention the distinction was quite the 

' EUiot's Debates, Vol. V, p. 133. ^ r^^^^ y^i y^ p^ 1^5. 

3 Ibid., Vol. V, p. 163. * Ibid., Vol. V, p. 213. 

5 Ibid., Vol. V, p. 205. 

52 American Government and Politics 

reverse; those who opposed the system were there considered 
and styled the federal party, those who advocated it, the anti- 
federal.'' ' 

In devising this national system it was necessary to make 
rQajr^xom,projnises.^ In the first place, the small states demanded 
equal representation and the large states representation accord- 
ing7lo population ; a compromise gave the small states equality 
in the Senate and the large states proportional representation in 
the lower House. In the next place, the slave states wished to 
have slaves counted in the apportionment of representation — ■ 
a demand which was stoutly opposed by the non-slave states; 
and a compromise was reached by the provision that in appor- 
tioning representation and direct taxes only three-fifths of the 
total nuinber *ot slaves should be counted. In the third place, 
the Nortli, having larger commercial interests than the South, 
wished to give Congress the power to regulate commerce, but the 
South, being solicitous of the slave trade, feared its prohibition 
in case imqualified power was vested in Congress; and the 
result was a compromise authorizing Congress to regulate com- 
merce, but forbidding it to prohibit the importation of slaves 
before the year 1808. 

In addition to these great compromises which had to be made 
on account of the diversity among the states in area, popula- 
tion, and wealth, there was a still greater compromise — the 
most fundamental one of all — the compromise between that 
party in the nation which wanted a government strong enough 
to pay the national debt, regulate commerce, protect creditors, 
and sustain property rights in general, and that other party which 
was especially concerned about a democratic and confederate 
form of government. The result here was a compromise which, 
Madison contended, secured the spirit and form of popular gov- 
ernment while preventing direct and simple majority rule.^ 

This compromise, in conjunction with the compromises men- 
tioned above, resulted in the establishment of what is known 
as the check and balance system. In this system, the President 
is elected for aTdur-year term by an indirect process ; the Sena- 
tors are elected for a six-year term (one-third going out every 

* Elliot's Debates, Vol. I, p. 362. 

' For a contemporary view, Readings, p. 45. ' See Readings, p. 52. 

The Establishment of the Federal Constitution 53 

two years) by another process — b y: the stat e^ legislatures; the ^ 
members of the House of Representatives are elected by another 
process — p opular vote — for a term of two years; and over 
against these three institutions is set a Supreme Court composed 
of judges appointed by another process — t he Presiden t and ! 
Senate — for life terms, and enjoying the power to declare null ; 
and void the unconstitutional acts of the other departments. j 
It is highly improbable, therefore, that any political party at a 
single national election may secure an unqualified control over 
all of these departments of government and rush through any ex- 
tremely radical measure. This system is eloquently described in a 
Uttle anecdote related of Jefferson and Washington. The former 
on one occasion was advancing many objections to a bicameral 
legislature, when Washington replied, "You yourself have proved 
the excellence of two houses this very moment." Astonished 
at this Jefferson inquired, "I? How is that. General?" " You 
have," explained Washington, "turned your hot tea from the 
cup into the saucer to get cool. It is the same thing we desire 
£)f the two houses." 

Fundamental Features of the New System 

I . The Articles of Conf ederatioirprovided no separate executive 
departoent charged Y^h th^^^ 

This grave defect was carefully considered by the convention, 
and warmly discussed by the advocates of the new system. 
All were agreed that a strong executive power was indispensable, 
but they were uncertain as to whether such an important au- 
thority should be vested in a single person or in a directorate. 
They also had no little difficulty in deciding on the method by 
which the chief magistrate was to be elected. 

On the point of a single executive armed with large powers, 
Hamilton argued with great cogency: "Energy in the executive 
is a leading character in the definition of good government. 
It is essential to the protection of the community against foreign 
attacks. It is not less essential to the steady administration of 
the laws, to the protection of property against those irregular 
and high-handed combinations which sometimes interrupt the 
ordinary course of justice, to the security of liberty against the 
enterprises and assaults of ambition, of faction, and of anarchy. 

54 American Government and Politics 

Every man, the least conversant with Roman story, knows how 
often that republic was obliged to take refuge in the absolute 
power of a single man, under the formidable title of dictator, 
as well against the intrigues of ambitious individuals who aspired 
to the tyranny, and the seditions of whole classes of the community 
whose conduct threatened the existence of all government, as 
against the invasions of external enemies who menaced the 
conquest and destruction of Rome." ^ 

Such weighty considerations prevailed in the convention, and 
an executive department with a single head endowed with regal 
powers was created. To meet the objection of those who were 
afraid of intrusting too much political control to the mass of the 
people, it was decidedjthat the President should be chosen in- 
directly by electors~appointed'as the legislatures of" the several 
states might determine. 

2. No less grave defects were inherent in the le gislature created 
by the Articles of Confederation. Three, in particular, engaged 
the attention of the convention: the equality of the several 
states, large and small, in voting power; the instabiUty of a single 
chamber; and the absence of direct representation of the people 
m the Congress — the delegates being appointed by their respec- 
tive state legislatures and thus dependent upon the states as 
corporate entities rather than upon the people thereof. The 

I convention accordingly decided upon a bicameral legislature : a 
Senate affording equal representation to all states and a House 
composed of representatives apportioned among the states on a 
basis of population. Moreover, the significant fact must not be 
overlooked, that it was provided that the members of the new 
Congress were to be paid from the national treasury and thus 
relieved from all dependence upon state revenues. "If the 
states were to pay the members of the national legislature," 
said Randolph in the convention, "a dependence would be 
created that would vitiate the,whole system. . . . The national 
treasury, therefore, Is the proper fund for supporting them." ^ 

3. The crowning defect of the Articles, according to Hamilton, 
was the want of a central judiciary. The old Congress had no 
authority to organize courts of general jurisdiction, although 
it could act as a tribunal of "last resort on appeal in all 

1 The Federalist, No. LXX. ^ Elliot's Debates, Vol. V, p. 226. 

The Establishment of the Federal Constitution 55 

disputes and differences arising between two or more states con- 
cerning boundary, jurisdiction, or any other cause whatever." * 
It therefore had no way of enforcing federal laws by judicial 
process,- and as Hamilton said: "Laws are a dead letter without 
courts to expound and define their true meaning and operation. 
The treaties of the United States, to have any force at all, must 
be considered as a part of the law of the land. Their true import 
as far as respects individuals, must Hke all other laws be ascer- 
tained by judicial determinations. To produce uniformity in 
these determinations they ought to be submitted in the last re- 
sort to one supreme tribunal." ^ Moreover, Hamilton, fearing 
the aggression of the legislature, beheved that the court should 
have the power of declaring laws unconstitutional. Accordingly 
a Supreme Court, and inferior courts to be erected by Congress, 
were given jurisdiction over all cases arising under the Constitu- 
tion, federal laws, and treaties — a jurisdiction by later congres- 
sional enactment and judical decision interpreted to include the 
power of declaring state and federal laws unconstitutional. 

4. The financial and commercial objections to the Articles of 
Confederation were met by two important provisions. The 
necessity of depending upon the state legislatures for federal 
funds was entirely eliminated by the clause authorizing Congress 
to raise revenues by taxes, duties, and excises bearing imme- 
diately upon the people as individuals. The continuation of the 
commercial warfare among the states was prevented by the 
clause empowering Congress to regulate commerce among the sev- 
eral states and with foreign nations, as well as with the Indians. 
The national government was also authorized to establish uni- 
form bankruptcy laws and thus exercise at will an effective 
check upon the shrewdly devised state legislation through which 
debtors sought to escape from some of their obHgations.^ 

No less important for financial and commercial purposes were 
the restrictions laid upon the powers of the states. They were 
forbidden to emit Lills of credit, make anything but gold and 
silver coin tender in payment of debts, pass ex post facto laws, lay 
duties on imports or exports (except with the consent of Congress 
for specific purposes), lay tonnage duties, or pass any law impair- 
ing the obligation of contract. 

* See Readings, p. 30. ^ Except in maritime and admiralty matters 

' The Federalist, No. XXII. * See Readings, pp. 236 ff. 

56 American Government and Politics 

5. Special effectiveness was given to the new powers conferred 
upon the national government by authorizing it to deal with 
individuals instead of thirteen distinct and separate states. 
Hence it was no longer possible for states to violate and disregard 
treaties made by the federal government, or to look upon federal 
laws as mere recommendations to be obeyed if desirable or neg- 
lected altogether. 

6. Of particular significance was the clause providing for future 
amendments. The Articles of Confederation^had stipulated 
tHat no alteration should be made without the approval of Con- 
gress and ratification by the legislature of every state. The new 
Constitution bound every state to an amendment, in case it was 
approved by two-thirds of both houses of Congress and ratified 
by three-fourthsof~the states. Even this system, as events have 
proved, has required such extraordinary majorities as to make 
amendments by regular process well-nigh impossible. Radical 
as this departure may have seemed to the ardent champion of 
states' rights, it was not radical enough for Patrick Henry, for he 
declared in the Virginia convention called to ratify the Consti- 
tution that "Four of the smallest states, that do not collectively 
contain one-tenth part of the population of the United States, 
may obstruct the most salutary and necessary amendments. 
... A bare majority in these four small states may hinder the 
adoption of amendments; so that we may fairly say and justly 
conclude that one-twentieth part of the American people may 
prevent the removal of the most grievous inconveniences and 
oppression by refusing to accede to amendments. ... Is this 
an easy mode of securing the pubhc liberty? It is, sir, a most 
fearful situation when the most contemptible minority can pre- 
vent the alteration of the most oppressive government; for it 
may, in many respects, prove to be such." ^ 

The Ratification of the Constitution 

It IS evident from an examination of these departures from 
the Articles of Confederation that a revolution in our political 
system was contemplated by the framers of the Constitution. 
They were doubtless unaware of all the national impHcations 

* Elliot's Debates, Vol. Ill, pp. 48-50. 

The Establishment of the Federal Constitution 57 

contained in thf^ instrument which they drafted, but they knew 
very well that the state legislatures, which had been so negligent 
in paying their quotas under the Articles and which had been 
so jealous of their rights, would probably stick at ratifying such 
a national instrument of government. Accordingly they cast 
aside that clause in the Articles requiring amendments to be 
ratified by the legislatures of all the states ; and advised that the 
new Constitution should be ratified by conventions^in the„several 
stSeFcompbsed oTdHegafes"c^ They further- 

rnore'decIaTed — arid this is a fundamental matter — that when 
the conventions of nine states had ratified the Constitution the 
new govemriieht should go into effect so far as those states were 
"concerned. The chief reason for resorting to ratifications by 
conventions is laid down by Hamilton in the twenty-second 
number of The Federalist: "It has not a little contributed to the 
infirmities of the existing federal system that it never had a rati- 
fication by the people. Resting on no better foundation than the 
consent of the several legislatures, it has been exposed to fre- 
quent and intricate questions concerning the validity of its 
powers; and has in some instances given birth to the enormous 
doctrine of a right of legislative repeal. Owing its ratification 
to the law of a state, it has been contended that the same author- 
ity might repeal the law by which it was ratified. However 
gross a heresy it may be to maintain that a party to a compact 
has a right to revoke that compact, the doctrine itself has respect- 
able advocates. The possibiUty of a question of this nature 
proves the necessity of laying the foundations of our national 
government deeper than in the mere sanction of delegated author- 
ity. The fabric of American empire ought to rest on the solid 
basis of the consent of the people. The streams of national power 
ought to flow immediately from that pure original fountain of 
all legitimate authority." 

Of course, the convention did not resort to the revolutionary 
policy of transmitting the Constitution directly to the conven- 
tions of the several states. It merely laid the finished instru- 
ment before the confederate Congress with the suggestion that 
it should be submitted to "a convention of delegates chosen in 
each state by the people thereof, under the recommendation of 
its legislature, for their assent and ratification; and each con- 
vention assenting thereto and ratifying the sam^ should give 

58 American Government and Politics 

notice thereof to the United States in Congress assembled."* 
The convention went on to suggest that when nine states had 
ratified the Constitution, the confederate Congress should ex- 
tinguish itself by making provision for the elections necessary 
to put the new government into effect. -^ "What they [the con-, 
vention] actually did, stripped of all fiction and verbiage," says 
Professor Burgess, ''was to assume constituent powers, ordain a 
Constitution of government and of liberty, and demand the 
plebiscite thereon, over the heads of all existing legally organized 
powers. Had Julius or Napoleon committed these acts, they 
would have been pronounced coups d'etat. Looked at from the 
side of the people exercising the plebiscite, we term the move- 
ment revolution. The convention clothed its acts and assump- 
tions in more moderate language than I have used, and professed 
to follow a more legal course than I have indicated. The exact 
form of procedure was as follows. They placed in the body of 
the proposed Constitution itself a provision declaring that rati- 
fications by conventions of the people in nine states (com- 
monwealths) should be sufficient for the establishment of the 
Constitution between the states (commonwealths) so ratifying 
the same. They then sent the instrument entire to the Con- 
f'^^derate Congress, with the direction, couched in terms of advice, 
that the Congress should pass it along, untouched, to the legis- 
latures of the commonwealths, and that these should pass it 
along, also untouched, to conventions of the people in each 
commonwealth, and that when nine conventions should have 
approved, Congress should take steps to put the new government 
into operation and abdicate. Of course the mass of the people 
were not at all able to analyze the real character of this proced- 
ure. It is probable that many of the members of the conven- 
tion itself did not fully comprehend just what they were doing. 
Not many of them had had sufficient education as publicists to 
be able to generalize the scientific import of their acts." ^ 

After the new Corstitution was published and transmitted to 
the states, there began a determined fight over its ratification. 
A veritable flood of pamphlet literature descended upon the coun- 

^ For document illustrating process of ratification, Readings, p. 54. 

2 Readings, p. 53. 

^ Burgess, Political Science and Constitutional Law, Vol. I, p. jq.c 

The Establishment of the Federal Constitution 59 

try, and a collection of these pamphlets by Hamilton, Madison, 
and Jay, brought together under the title of The Federalist — 
though clearly a piece of campaign literature — has remained a 
permanent part of the contemporary sources on the Constitution 
and has been regarded by many lawyers as a commentary second 
in value only to the decisions of the Supreme Court. Within 
a year the champions of the new government found themselves 
victorious, for on June 21, 1788, the ninth state. New Hampshire, 
ratified the Constitution, and accordingly the new government 
might go into effect as between the agreeing states. Within a 
few weeks, the nationahst party in Virginia and New York 
succeeded in winning these two states, and in spite of the fact 
that North Carolina and Rhode Island had not yet ratified the 
Constitution, Congress determined to put the instrument into 
effect in accordance with the recommendations of the convention. 
Elections for the new government were held; the date March 4, 
1789, was fixed for the formal establishment of the new system; 
Congress secured a quorum on- April 6; and on April 30, Wash- 
ington was inaugurated at the Federal Hall in Wall Street, New 



If we use the term "Constitution" in the narrow sense as 
including only the provisions of the written instrument itself, 
the history of its development would be brief; but such a re- 
striction of the term would be sheer formahsm, and a history 
based upon such an interpretation would be utterly misleading. 
For constitutional law, as Professor Dicey points out, includes 
all the fundamental rules which directly or indirectly affect the 
distribution and exercise of sovereign power; it includes among 
other things the laws which define the suffrage, regulate the 
prerogatives of the chief magistrate, prescribe the form of the 
legislature, and determine the structure and functions of the 
hierarchy of officials. A comparison, therefore, of the existing 
body of law and custom relative to such matters with that ob- 
taining in the United States on the morning when Washington 
took the oath of office in Wall Street reveals most astonishing 
changes. Only eighteen new clauses, it is true, have been added 
by way of amendment to the written document, but Congress 
has filled up the bare outline by elaborate statutes; party opera- 
tions have altered fundamentally the spirit and working of much 
of the machinery; official practice has set up new standards from 
time to time; and the Supreme Court, by generous canons of 
interpretation, has expanded, in ways undreamed of by the 
Fathers, the letter of the law. In fact, the customs of our Con- 
stitution form as large an element as they do in the English con- 
stitution. A correct appreciation of the evolutionary character 
of the federal system is, therefore, necessary for a true under- 
standing of the genius of the American political institutions. 

The Federal Amending Process 

The most obvious changes in our Constitution are, of course, 
those that have been effected by the amendments, all of which 
are to be understood in connection with the historical circum- 


The Evolution of the Federal Constitution 6i 

stances that called them into existence. The system of amend- 
ment provided by the framers of the Constitution, while very 
simple in its nature, requires such extraordinary majorities 
both for initiation and ratification that, in practice, with the 
exception of the first eleven articles, no change has been made 
save under circumstances of a serious character. 

There are, in reality, four possible ways of amending the Con- 
stitution, although in practice only one has been used. A 
proposition to amend may originate in Congress, on the approval 
of two-thirds of both houses, and may be ratified by the concur- 
rence of the legislatures, or of conventions, as Congress may 
determine, in three-fourths of the states. On the other hand. 
Congress, on the application of the legislatures of two- thirds of 
the states, must call a national convention for the purpose of 
drafting amendments which may be ratified by conventions, or 
by legislatures in three-fourths of the states. The composition 
of the national and state conventions, the procedure to be fol- 
lowed by the state legislatures in passing upon amendments, 
and numerous other questions are left unsettled by the brief 
article in the Constitution,^ but it is to be presumed that Congress 
may make such reasonable elaborations as it may see fit. 

On the occasions in wkich the federal Constitution has been 
amended, Congress has been very brief in its provisions.^ A 
proposition for an amendment is submitted by a resolution in the 
following form: ''Resolved by the Senate and the House of 
Representatives of the United States of America in Congress 
assembled, two-thirds of both houses concurring. That the follow- 
ing article be proposed to the legislatures of the several states as 
an amendment to the Constitution of the United States which 
when ratified by three-fourths of the said legislatures shall be 
valid as part of the said Constitution." The states are then left 
to their own devices in approving or rejecting the proposal, 
Congress merely directing that "Whenever ofiicial notice is 
received at the Department of State that any amendment 
proposed to the Constitution of the United States has been 
adopted, according to the provisions of the Constitution, the 
Secretary of State shall forthwith cause the amendment to be 
published in the newspapers a^uthorized to promulgate laws, 

* Burgess, Political Science and Constitutional Law, Vol. I, p. 146. 
^ See Readings, pp. 56 ff. 

62 American Government and Politics 

with his certificate specifying the states by which the same may 
have been adopted, and that the same has become valid, to all 
intents and purposes, as a part of the Constitution of the United 

The requirement of the approval of an exceptionally large 
number of states and the principle of allowing states equal weight, 
regardless of their population or wealth, has been the subject 
of much adverse criticism, from the protest of Patrick Henry, 
which we have noted, down to the objections of the most re- 
cent commentators. Professor Burgess makes an exceptionally 
powerful argument against the federal amending system: "When 
I reflect that, while our natural conditions and relations have 
been requiring a gradual strengthening and extension of the 
powers of the central government, not a single step has been 
taken in this direction through the process of amendment pre- 
scribed in that article, except as the result of civil war, I am bound 
to conclude that the organization of the sovereign power within 
the Constitution has failed to accomplish the purpose for which 
it was constructed. . . . When a state must have recourse to 
war to solve the internal questions of its own politics, this is 
indisputable evidence that the law of its organization within the 
constitution is imperfect; and when a state cannot so modify and 
amend its constitution from time to time as to express itself 
truthfully therein, but must writhe under the bonds of its con- 
stitution from time to time until it perishes or breaks them 
asunder, this is again indisputable evidence that the law of its 
organization within the constitution is imperfect and false. . . . 
When in a democratic political society, the well-matured, long, 
and deliberately formed will of the undoubted majority can be 
persistently and successfully thwarted, in the amendment of its 
organic law, by the will of the minority, there is just as much 
danger to the state from revolution and violence as there is from 
the caprice of the majority where the sovereignty of the bare 
majority is acknowledged." ^ 

The extraordinary majorities required for the initiation and 
ratification of amendments, for a long time, seemed to make it 
impossible to amend the Constitution under ordinary circum- 
stances. It was constantly pointed out that only the war power 

* Political Science and Constitutional Law, Vol. I, pp. 150 ff. 

The Evolution of the Federal Constitution 6^ 

in the hands of the federal government secured the passage of the 
great clauses relating to slavery and civil rights. An observant 
scholar, Professor J. Allen Smith, estimated that, on the basis of 
the census (1900), one forty-fourth of the population distributed 
so as to constitute a majority in the twelve smallest states could 
prevent the ratification of a proposed amendment, even after 
it had got the requisite two-thirds vote in both Houses of Con- 
gress.^ This anomalous situation led to a demand for a change 
in the amendment process itself ; and in 191 2 Senator La Follette 
introduced an amendment to the amendment clause permitting 
future amendments by a majority of both houses of Congress on 
approval of a majority of the voting population in a majority of 
the states. The comparative ease with which the Sixteenth, 
Seventeenth, and Eighteenth amendments were passed by Con- 
gress and ratified by the states appeared to refute the notion 
that the Constitution was too rigid for a progressive democracy. 

The Adoption of Amendments I-XVIII to the Constitution 

The first ten articles of amendment to the Constitution were 
adopted so closely after the ratification of the original instrument 
that they may be deemed almost a part of it. During the struggles 
which occurred in many states over the acceptance of the new 
plan of government, it was manifest that a great deal of the op- 
position to it was based on the absence of any provisions expressly 
safeguarding individual rights against the action of the federal 
government. Jefferson, who was in Paris at the time the con- 
vention finished its work, wrote to a friend in Virginia that he 
wished four states would withhold ratification until a declaration 
of rights could be annexed, stipulating "freedom of religion, 
freedom of the press, freedom of commerce against monopolies, 
trial by jurj" in all cases, no suspensions of habeas corpus, no 
standing armies." ^ Most of the state constitutions had pro- 
vided such limitations on their governments, and there was evi- 
dently a desire on the part of many, who otherwise approved the 
Constitution, to see the ancient doctrines on private rights 
embodied in it. Seven of the ratifying state conventions even 

^ The Spirit of American Goverrment, 1907, pp. 46 ff. 
^ Quoted in Curtis, Constitufional History of the United States (1889), 
Vol. I, p. 669, note. 

64 American Government and Politics 

put their wishes in the concrete form of a total of one hundred 
and twenty-four articles of amendment to be added to the 

In The Federalist, Hamilton argued ably that such provisions 
were superfluous and even dangerous, because they contained 
various exceptions to power not actually granted, and would 
thus afford a colorable pretext to claim more than was granted. 
"For," he contended, "why declare that things shall not be done 
which there is no power to do? Why, for instance, should it be 
said, that the liberty of the press shall not be restrained, when no 
power is given by which restrictions may be imposed? I will 
not contend that such a provision would confer a regulating 
power; but it is evident that it would furnish, to men disposed 
to usurp, a plausible pretence for claiming that power. They 
might urge with a semblance of reason that the Constitution 
ought not to be charged with the absurdity of providing against 
the abuse of dn authority which was not given, and that the 
provision against restraining the liberty of the press Afforded a 
clear implication that a right to prescribe proper regulations con- 
cerning it was intended to be vested in the national government." ^ 

This very plausible argument was met with great cogency 
by Madison, introducing the proposed amendments in Congress 
in June, 1789; and the history of the Alien and Sedition laws 
later bore out the contentions he advanced. He admitted that 
the new government was limited to certain particular objects, 
but pointed out that even within the most narrowly circumscribed 
limits the government would have a discretionary power liable 
to abuse, and furthermore that this abuse was all the more prob- 
able in view of the express provision that Congress could make 
all laws necessary and proper for carrying into execution the 
powers expressly vested in the government of the United States. 
In support of this, Madison cited a single instance: "The General 
Government has a right to pass all laws which shall be necessary 
to collect its revenue, the means of enforcing the collection are 
within the direction of the legislature; may not general warrants 
[of arrest] be considered necessary for the purpose, as well as for 
some purposes which it was supposed, at the framing of their 

^ Ames, Proposed Amendments to the Constitution of the United States, 
pp. 183 S. 

2 The Federalist, No. LXXXIV. 

The Evolution of the Federal Constitution 65 

constitutions, the state governments had in view? If there was 
any reason for restraining the state governments from exercising 
this power, there is like reason for restraining the federal govern- 
ment." ^ He then went on to state that it was his conviction 
that such a measure would rally large numbers to the cause of 
FederaHsm, and that, on principles of amity and moderation, 
the great rights of mankind secured under the Constitution ought 
to be expressly declared. After a delay of two months, the 
House passed seventeen amendments, which were reduced to 
twelve in the Senate, slightly modified at a joint conference com- 
mittee, and submitted to the states, by two-thirds vote on Septem- 
ber 25, 1789, with an accompanying resolution to the effect 
that it had been done to extend the ground of pubUc confidence 
in the government and best insure the beneficent ends of its insti- 
tution. Two of the amendments dealing with apportionment 
and payment of members of Congress failed to receive the ap- 
proval of the requisite number of states, but the other ten were 
ratified by eleven commonwealths, Virginia being the last to 
add her sanction, December 15, 1791. 

The Eleventh Amendment, providing that the judicial power 
of the United States shall not extend to any suit in law or equity, 
commenced or prosecuted against one of the United States by 
^tizens of another state or by citizens or subjects of any foreign 
state,' was the direct outgrowth of a judicial decision rendered 
by the Supreme Court in the case of Chisholm v. Georgia in 1793. 
That case involved the question as to whether a state could be 
3ued by a private citizen; and the champions of states' rights 
stoutly held that the Supreme Court could not try an action by 
a citizen against a "sovereign state." The Court, however, held 
that it possessed such jurisdiction, directed the service of papers 
on the governor and attorney-general of Georgia, and ordered 
that, unless the state appeared in due form, judgment should be 
entered by default. 

This decision instantly aroused the indignation of the advo- 
cates of states' rights. The decision of the Court was reached on 
February 18, 1793; and two days later Senator Sedgwick, of 
Massachusetts, introduced into Congress the proposed amend- 
ment. The Massachusetts legislature soon afterward declared 
the power exercised by the Supreme Court "dangerous to the 
* Annals of Congress, Vol I, pp. 440 flf. 

06 American Government and Politics 

peace, safety, and independence of the several states and repugn 
nant to the first principles of a Federal government"; and the 
Georgia house of representatives passed an act providing that 
any official who attempted the enforcement of the decision should 
be declared guilty of felony and suffer death without benefit of 
clergy by being hanged.^ The proposed amendment, which was 
sent to the states by Congress in 1794, received the requisite 
approval of three-fourths of the states, and went into force in 

Little more than two years had elapsed after the ratification 
of the Eleventh Amendment before a more serious crisis, in the 
presidential election of 1800, demonstrated the imperative neces- 
sity of reconstructing the section of the Constitution dealing with 
the balloting of the electors for President. The original system, 
which was prepared without taking into account the rise of parties 
and their effect on the framework of the government, provided 
that the presidential electors chosen in each state should cast 
their ballots for two persons, without designating which was to 
be President or Vice-President; and then added: "The person 
having the greatest number of votes shall be President, if such 
number be a majority of the whole number of electors appointed: 
and if there be more than one who have such majority, and have 
an equal number of votes, then the House of Representatives 
shall immediately choose by ballot one of them for President; 
and if no person have a majority, then, from the five highest on 
the fist, the said House shall in like manner choose the President," 
the representation from each state having one vote. 

In the election of 1800, Jefferson and Burr received seventy- 
three votes each, and the latter, willing to defeat what he knew 
to be the real wishes of his party, sought to secure his election to 
the presidency by gaining enough votes from the Federalists in 
the House of Representatives where the election had been thrown 
under the constitutional provision. Fortunately his design was 
frustrated; but the outcome of the contest, and the low intrigue 
which accompanied it, revealed the necessity of requiring the 
electors to designate the persons for whom they cast their ballots 
as President and Vice-President respectively. 

^ Professor H. V. Ames, in his valuable' collection, State Documents on Federal 
Relations, pp. 7 ff., gives this act and citations of authorities. 

The Evolution of the Federal Constitution 67 

Accordingly an amendment to effect this reasonable change 
was introduced into the House of Representatives in February, 
1802.^ The arguments advanced in favor of it were simple and 
direct: the suffrages given for the election of the agents of gov- 
ernment ought to be an expression of pubUc will; any provision 
liable to lead to the appointment of a person not originally in- 
tended by a majority of the electors defeats the first principles 
of the American system; and finally, what more serious calamity 
could be imagined than a continued division of the House of 
Representatives — in case the choice should fall there — which 
might result in indefinite delay of a presidential election — by 
no means an impossible contingency.- The arguments against 
the proposal were singularly weak: it was urged in favor of the 
smaller states that they would have a better chance of securing 
one or the other of the oflSces if the existing system was retained, 
because it threw contested elections into the House of Repre- 
sentatives where all states had an equal vote; and finally it 
would destroy the original design of having two of the ablest char- 
acters chosen without discrimination for the high office.^ Never- 
theless, the proposal, which received the requisite majority in 
Congress and then went to the states in December, 1803, was 
promptly ratified and declared in force on September 25, 1804, 
as the Twelfth Amendment. 

An eventful half century now passed before any further changes 
were made in the law of the Constitution. Vast territories 
stretching to the Pacific were acquired; nearly a score of states 
were added to the Union; the development of industries and the 
extension of railways began to work a marvellous transforma- 
tion in the economic system of the country; state constitutions 
were remodelled over and over, showing at each successive decade 
an advance in democratic ideas of government; practices of 
every kind stretched beyond recognition many of the original 
terms of the written instrument; and yet no changes could be 
made in the formal rules of the document itself until, in the hot 
struggles of the Civil War, the whole poHtical system was thrown 
into the melting pot. 

In March, 1862, less than a year after the opening of the 

^ Such an amendment had really been proposed earlier. 
^Annals of Congress, 8th Cong., ist Sess., pp. 490 ff. 
^Ibid., 8th Cong., ist Sess., pp. 691 fE. 

68 American Government and Politics 

conflict between the states, Congress abolished slavery in the 
territories, the following month slaves were emancipated in the 
District of Columbia, and in September, 1862, shortly after the 
check administered to Lee at the battle of Antietam, Lincoln 
issued his proclamation announcing that the slaves in those 
states which had not returned to their allegiance by January i, 
1863, would be treated as free. 

However, the Proclamation of Emancipation, which duly went 
into effect, might not of its own force have prevented the res- 
toration of slavery by the Confederate States if they were brought 
back into the Union; and accordingly, in December, 1863, simul- 
taneous resolutions were introduced into the House and Senate, 
providing for an amendment forever prohibiting slavery. In a 
speech delivered in the Senate in support of the amendment, 
Mr. Trumbull put the situation concisely: *'In my judgment, 
the only effectual way of ridding the country of slavery, and so 
that it cannot be resuscitated, is by an amendment of the Consti- 
tution forever prohibiting it within the jurisdiction of the United 
States. This amendment adopted, not only does slavery cease, 
but it can never be reestablished by state authority or in any 
other way than by amending the Constitution. Whereas, if 
slavery should now be abolished by act of Congress or procla- 
mation of the President, assuming that either had the power to 
do it, there is nothing in the Constitution to prevent any state 
from reestablishing it. ... It is very generally conceded, I 
beheve, by men of all political parties, that slavery is gone, that 
the value of slavery is destroyed by the rebellion. What objec- 
tion then can there be on the part of any one in the present state 
of pubhc feeling in the country, to giving the people an oppor- 
tunity to pass on the question? " ^ 

It was apparent, however, to every one that pressure would 
have to be exercised on the conquered southern states in order 
to secure the requisite three-fourths for the adopt^n of the amend- 
ment. This was a ground for the objections urged by Mr. 
Pendleton in the House of Representatives against the passage 
of the resolution. ''It is impossible," he declared, "that the 
amendment proposed should be ratified without a fraudulent 
use — I select the term advisedly — without a fraudulent use 

* Congressional Globe, 38th Cong., ist Sess., p. 1313. 

The Evolution of the Federal Constitution 6g 

of the power to admit new states or a fraudulent use of the mili- 
tary power of the federal government in the seceded states. 
There are thirty-five states. Twenty-seven are necessary to 
ratify this amendment. There are nineteen free states. Sup- 
pose you get them all, where do you get the others? . . . Will 
the gentlemen call on the southern states to furnish the requisite 
number? If these states are to vote in their present condition, 
it would be a broad farce, if it were not a wicked fraud." ^ Curi- 
ously enough, it was even urged against the measure that " neither 
three-fourths of the states, nor all the states save one, can abolish 
slavery in that dissenting state, because it lies within the domain 
reserved entirely to each state for itself and upon it the other 
states cannot enter." 

So great was the opposition to the resolution that it failed at 
first to secure the requisite two-thirds in the House of Representa- 
tives; but Lincoln in his message of December 6, 1864, after his 
reelection, warned Congress that it was only a question of time 
until slavery would have to go. Speaking of the election, he 
said, "It is the voice of the people now for the first time heard 
upon the question. In a great national crisis Hke ours, unanim- 
ity of action among those seeking a common end is very desir- 
able. Yet no approach to such unanimity is attainable unless 
some deference is paid to the will of the majority simply because 
it is the will of the majority."^ This appeal was successful, and 
after a long and exciting debate the amendment was passed at 
the opening of 1865. It was then sent out to the states and 
ratified by twenty-seven of them, among which were Nevada, 
which had been admitted for the purpose, and several southern 
states, acting under the pressure of the federal military author- 
ity. The Thirteenth Amendment, thus carried through, was 
declared in force by the Secretary of State on December 18, 1865. 

The radical Republicans, headed by the indomitable Thaddeus 
Stevens, were not content with abolishing slavery; they were 
determined also to give' to the newly emancipated negroes all 
the civil rights which the whites enjoyed, to impose disabilities 
on certain secessionists, and to secure the validity of the federal 

^ Congressional Globe, p. 2903; see below, chap, x, for Dana's account of the 
method employed by Lincoln in securing the adoption of the Thirteenth 

^ Richardson, Messages and Papers of the President, Vol. VI, p. 252. 

yo American Government and Politics 

war debt. By the Civil Rights Act of April, 1866, they sought 
to remove all the incidents of slavery and secure for negroes 
equality before the law ; but realizing that a mere act could be 
repealed at any time by a subsequent Congress, they decided to 
place the principles of civil liberty high above the reach of party 
factions by securely establishing them in the Constitution itself. 
Accordingly, in June, 1866, Congress passed the Fourteenth 
Amendment, designed among other things to assure citizenship, 
civil rights, and the suffrage to the freedmen. By refusing to re- 
admit certain southern states until they had accepted this radical 
alteration in our political system, the requisite number of ratifi- 
cations was at length secured ; and the Fourteenth Amendment 
was promulgated by the Secretary of State in July, 1868.^ 

The indirect method (provided by the Fourteenth Amend- 
ment) of securing the vote to the negroes through the threat to 
reduce the representation of any state excluding them from the 
suffrage, it was feared, would not be effective enough in practice ; 
and the Repubhcans accordingly decided to complete the work 
of reconstruction by expressly forbidding any commonwealth to 
deprive any citizen of the right to vote on account of race, color, 
or previous condition of servitude. Some of the northern states 
still denied the franchise to negroes, and this was a standing 
reproach to the reformers, who insisted on granting this right in 
the South in opposition to the known wishes of the whites. It, 
therefore, seemed expedient to some, -and to others abstractly 
just, to prevent political discrimination against the negro 
throughout the entire Union ; and to achieve this end, the Fif- 
teenth Amendment was passed by Congress in February, 
1869, and declared ratified on March 30, 1870. Thus was 
ended the formal revolution wrought in our political system by 
the Civil War. 

Forty-three years then elapsed before another amendment was 
added to the Constitution, in spite of the fact that a large crop 
of proposed changes was produced in every Congress during the 
intervening period. It was not until July, 1909, that a two- 
thirds majority could be secured in both houses to any change 
in the fundamental law. At that time, a resolution was duly 
passed providing that Congress " shall have power to lay and 
collect taxes on incomes, from whatever source derived, without 

^ See Readings, p. 393, for the Amendment. See also Appendix. 

The Evolution of the Federal Constitution 71 

apportionment among the several states and without regard to 
any census or enumeration." This amendment was designed to 
get around the decision of the Supreme Court in 1895 when it 
declared the income tax law of the previous year unconstitu- 
tional.^ The Sixteenth Amendment was duly ratified, and was 
proclaimed in force on February 25, 19 13. 

The Seventeenth Amendment, providing that United States 
Senators shall be elected by "the people" of the several states, 
thaTis, by electors having the qualifications of voters for the 
most numerous branch of the state legislature, was adopted "By 
■Congress in May, 191 2, and speedily ratified.^ This proposal 
had been brought up in Congress many times, and it had been 
passed more than once by the requisite majority in the House 
of Representatives; but the Senate had defeated it on every 
occasion until June, 191 1, when it passed a resolution providing 
for popular election. A deadlock between the two houses then 
followed, and it was not until a year later (191 2) that the two 
bodies were able to agree. The amendment was declared in 
force on May 31, 1913. 

The Eighteenth Amendment, proclaimed on January 29, 1919, 
provided that one year after ratification the manufacture, sale, 
and transportation within, the importation into and the exporta- 
tion from the United States, of intoxicating liquors for beverage 
purposes should be prohibited. The amendment applies to all 
territories subject to the United States. 

On June 4, 1919, Congress submitted to the states an amend- 
ment providing that no citizen of the United States shall be 
denied the right to vote "on account of sex." This act on the 
part of Congress closed, in Washington, the long agitation 
for woman suffrage which began before the Civil War. By 
April, 1920, thirty-five states, out of the necessary thirty-six, 
had ratified the proposed amendment. 

The last three amendments illustrate in a peculiar way the 
relation of our state and federal systems. All of the proposi- 
tions were before Congress for a long time and repeatedly re- 
jected. Advocates, however, kept at work in the states, bring- 
ing about popular election of Senators, prohibition, and woman 
suffrage, state by state, until they made all three issues in- 
escapable at Washington. Then Congress acted. 

^ See below, p. 360. ^ See below, p. 243. 

72 American Government and Politics 

Statutory Elaboration of the Constitution 

It would be a mistake, of course, to confuse the formal amend- 
ments, which we have just considered, with statutes, especially 
in the matter of the sanction which each of the two forms of law 
has behind it. The former are placed beyond the reach of the 
legislature by an extraordinary process of enactment, and can be 
abrogated only by a similar process. A statute, on the other 
hand, is made by Congress, and may be altered or repealed at 
anytime by the same body without further authority. Never- 
theless, when viewed from the standpoint of content, there is no 
real intrinsic difference between many statutes and the provi- 
sions of the Constitution itself; and, if we regard as constitu- 
tional all that body of law relative to the fundamental organiza- 
tion of the three branches of the federal government, — legis- 
lative, executive, and judicial, — then by far the greater portion 
of our constitutional law is to be found in the statutes. At 
all events, whoever would trace, even in grand outHnes, the 
evolution of our constitutional system must take them into 

Such, for instance, are the laws organizing all the executive 
departments which have grown out of the authority conferred 
by the barest mention in the Constitution of the fact| that some 
appointments maybe made by the "heads of departments," 
and that the President "may require the opinion, in writing, of 
the principal officer in each of the executive departments, upon 
any subject relating to the duties of their respective offices." 
To take another example, the Twelfth Amendment is scarcely 
more important than the statute of 1887, which elaborates it in 
great detail by providing the modes of counting the electoral 
votes and determining controversies. Indeed, Senator Garland, 
at the time, declared such a statute amendatory in its nature 
and beyond the power of Congress. Whether the statute in 
^[uestion is one which the f ramers of the Constitution would have 
deemed within the letter of the written document it is obviously 
impossible to determine; it may quite properly be regarded 
as an amendment which the general acceptance of the nation 
allows to stand in force as a mere statute. Such reasoning is not 
without justification, and finely illustrates the shadowy char- 
acter of the distinctions between constitutional and statute law. 

The Evolution of the Federal Constitution 73 

Again, the federal statute of 1866 ^ regulating the election of 
Senators by the state legislatures and controlling their internal 
procedure in this matter may be regarded as constitutional in 
character in so far as it was linked organically with the provisions 
of the Constitution. A striking and curious illustration of the 
way in which the federal system has been in part altered by 
state action is the practice, adopted in some commonwealths, of 
requiring the legislature to choose for the United States Senate 
the nominee indicated by popular vote — a practice undoubtedly 
contrary to the letter of the Constitution and to the intention 
of the framers. 

The Custom of the Constitution 

It is the fashion for Enghsh pubUcists to congratulate their 
American colleagues on the simplicity of the task of commenting 
on a written constitution as compared with the complicated task 
of unravelUng from fluctuating party customs the mysteries of 
the EngUsh poHtical system. ''Whatever may be the advan- 
tages of a so-called 'unwritten' constitution," declares Professor 
Dicey, "its existence imposes special difficulties on teachers 
bound to expound its provisions. Any one will see that this is 
so who compares for a moment the position of writers such as 
Kent and Story, who commented on the Constitution of Amer- 
ica, with the situation of any person who undertakes to comment 
on the constitutional law of England. When these distinguished 
jurists deUvered, in the form of lectures, commentaries upon the 
Constitution of the United States, they knew precisely what was 
the proper subject of their teaching and what was the proper 
mode of dealing with it. The theme of their teaching was a 
definite assignable part of the law of their country; it was re- 
corded in a given document to which all the world had access, 
namely, 'the Constitution of the United States established and 
ordained by the People of the United States.' " ^ 

Now, as a matter of simple fact, any one who relied upon the 
commentaries of these distinguished jurists for a knowledge 
of the actual government of the United States would not pene- 
trate beycnd the outer boundaries of the subject. For example, 
Kent dismisses the topic of the Speaker of the House of Repre- 
sentatives with this sentence: "The House of Representatives 

* See Readings, p. 21. ' The Law and Custom of the Constitution, chap. L 

74 American Government and Politics 

choose their own Speaker," This statement throws as much 
light on our federal government as the observation that the 
prime minister for the time being is the First Lord of the Treasury 
throws on the British cabinet system. Surely no commentator 
on the British constitution would leave out of account the entire 
cabinet system and its vital relation to party practices. 

Indeed, the most complete revolution in our political system 
has not been brought about by amendments or by statutes, 
but by the customs of political parties in operating the ma- 
chinery of the government.^ So radical is 'this transformation 
in the letter and spirit of the system of 1789, and so completely 
does it extend to the utmost extremities of that system, that 
it seems necessary to devote special chapters to an examination 
of its diverse aspects.^ A few examples, however, will be given 
here to illustrate concretely the ways in which party practices 
transform the written law. 

1. The Constitution tells us that the President is elected by 
electors chosen as the legislatures of the states shall see fit. In 
practice a few candidates are selected at national party con- 
ventions, — institutions wholly unknown to federal law; the 
electors are figureheads selected by the parties and bound 
to obey party commands; and the voters merely have the right 
to choose between the candidates nominated. 

2. The Constitution informs us that the Senators are elected 
by the "people" of the states ; but to understand how Senators 
are really chosen it is necessary to examine the direct nomination 
laws and party practices in the several states. 

3. The Constitution states that the Speaker is chosen by the 
House of Representatives. In fact, he is selected by a caucus 
of the majority members of the House. 

4. In the view of the Constitution the Speaker is the impartial 
presiding officer of the House. In fact, he is one of the leaders 
of the majority party in that body. 

5. The Constitution informs us that revenue bills must 
originate in the lower House. In plain fact, revenue bills origi- 
nate in the Senate quite as much as in the House, although the 
latter body nominally exercises its prerogative.^ 

1 On this important subject, see Goodnow, Politics and Administration. 

2 Chaps, vi, vii, and xxx, and Readings, chaps, vi, vii, and xxx. 
' See below, chap, xviii. 

The Evolution of the Federal Constitution 75 

6. The Constitution says very little about legislative pro- 
cedure, but the whole spirit and operation of Congress depend 
upon the rules, organization of committees, and agreements 
among the leaders of the majority party. 

Closely related to the alterations introduced into the original 
system by party methods are the changes wrought in the 
presidential office by the exigencies of party leadership. This 
aspect of our constitutional evolution is regarded by some as 
an apparently fortuitous contingency dependent upon the 
personality of the President and the circumstances under which 
he carries on his administration, but by others it is considered 
as a permanent and salutary outcome of our political develop- 
ment. It would be interesting to know, at all events, the feelings 
that would be entertained by a member of the federal convention 
of 1787 if he could compare the deliberate and austere adminis- 
tration of Washington with that of Mr. Roosevelt, who was pre- 
eminently a party leader. Through his personal representative 
he participated in the gubernatorial campaign in New York 
in 1906; he aided Congressman Burton in his contest with Mr. 
Johnson for the mayoralty of Cleveland; and finally he was 
chiefly instrumental in selecting his own successor. Mr. Taft 
likewise declared his belief in the duty of the President to act as 
party leader and assume party responsibilities. Mr. Wilson's 
control over the legislative policies of the Democratic Congress 
for six years amounted to almost a dictatorship. It requires no 
far stretch of the imagination to believe that the original framers 
would regard the recent developments as entirely beyond their 
intentions. This is not meant to imply any criticism of such 
presidential policies, but it shows how the American people 
are actually not very much hampered in practice by constitu- 
tional theories. 

Judicial Expansion of the Constitution 

While there is a large and eminently respectable school of 
thinkers who maintain that the courts do not make law, it 
nevertheless remains a fact that the Supreme Court of the United 
States has on several occasions expanded the written instrument 
under the guise of an interpretation. Indisputable evidence 
of this fact is offered by the reversals of opinion showing that 

76 American Government and Politics 

either in one case or the other the Court had read into the docu* 
ment ideas which it did not contain. Furthermore, the numerous 
dissenting opinions, often by the considerable minority of four 
to five, lend the weight of eminent authority to the contention 
raised in many quarters that certain decisions are not mere 
applications of the letter and spirit of the Constitution to specific 
circumstances, but positive additions to the venerable fabric 
which the convention constructed. This, of course, is con- 
troversial ground, but a few illustrations will make clear what 
is meant by those who maintain, without any intention of adverse 
criticism, that the Supreme Court makes constitutional law 
from time to time to meet the demands of new circumstances, 
or to express the opinion of the Court as to what ought to be 
the law.^ 

A notable instance is the case of Chisholm v. Georgia, men- 
tioned above, in which the Court took jurisdiction over a suit 
against a state by a citizen. That it was not the intention of 
the states at the time of the ratification to confer such juris- 
diction is evidenced by the general protest which went up against 
it and the facility with which an amendment was provided. 
Furthermore, Hamilton in The Federalist had expressed his 
behef that no such power was given by the Constitution, and the 
general principles of law up to that time seem to have been 
contrary to the ruHng of the Court; but the Court, desiring to 
make the Constitution a broadly national instrument, assumed 
jurisdiction over the suit against Georgia. A more notable 
case was that of Marbury v. Madison, in which the Court decided 
for the first time that it had power to declare invahd statutes 
of Congress which it deemed contrary to the Constitution. 
Whether the majority in the convention intended to bestow 
such high prerogative on the federal tribunal is a matter of con- 
troversy. Certain it is that some of the members, notably 
Hamilton, ascribed such a power to the Court; but no express 
warrant was conveyed by the document itself, and there is some 
reason for holding that such might not have been the general 
intention of those who ratified the instrument. Later the Court 
extended the clause forbidding any state to pass a law impairing 
the obHgation of contract to cover even agreements made by 

^ Readings, p. 62. 

The Evolution of the Federal Constitution 77 

the states themselves in the form of charters and concessions, 
a ruling which, however expedient from the standpoint of the 
protection of private rights, certainly widened the meaning of 
the term "contract," as generally understood at the time.^ To 
cite a more recent example: until the acquisition of our insular 
dependencies, an achievement as far beyond the range of the 
''/ision of the convention of 1787 as any imaginable, the Court 
had uniformly ruled that the provisions safeguarding individual 
liberty, laid down in the first ten amendments, restricted the 
federal authorities everywhere, in the government of territories 
as well as in the districts organized into states; but when it 
became apparent that such practices of Anglo-Saxon peoples 
as indictment and trial by jury were not appUcable to peoples 
in other stages of culture and with diverse historical antecedents, 
the Court, by^ a process more subtle than logical, found a way 
of freeing the administration of the island dependencies from 
some limitations that had hitherto apphed in the government of 

The pages that follow describing the organization and opera- 
tion of our system of government, federal and state, are in a large 
part but a commentary on the ways in which the Constitution — 
'Hhe solemn determination of the people enacting a fundamental 
law" — has been transformed in the hands of those who from 
generation to generation have exercised pohtical power. Over 
and over the plain record of political practices and official opera- 
tions will bear eloquent testimony to the truth of the measured 
summary by Judge Cooley so often quoted: "We may think 
that we have the Constitution all before us; but for practical 
purposes the Constitution is that which the government in its 
several departments and the people in the performance of their 
duties as citizens, recognize and respect as such; and nothing 
else is. . . . Cervantes says: 'Every one is the son of his own 
works.' This is more emphatically true of an instrument of 
government than it can possibly be of a natural person. What 
it takes to itself, though at first unwarrantable, helps to make 
it over into a new instrument of government, and it represents 
at last the acts done under it." 

^ See below, chap. xxii. ^ Readings, p. 375. 



The facility with which our poHtical system may be divided 
into the state and federal branches naturally leads to the separa- 
tion of them for the purpose of convenient treatment; but the 
student should never lose sight of the fact that, after all, our 
political system is a unit because the operations of both branches 
interlock at many points, and the developments of each affect 
the letter and spirit of the other. The framers of the federal 
Constitution, for example, did not contemplate the adoption of 
general manhood suffrage or the direct election of the President, 
and yet state action and party practice have accomplished this. 
It surely was not the intention of the states which ratified the 
Constitution that the outcome was to be the reduction of each 
commonwealth to the position of little more than a local govern- 
ment through the increase of federal power; and yet such has 
been the case. It was not dreamed that national politics would 
overshadow state politics; but the growth of huge national 
party organizations in connection with the operations of the 
federal government has made the state a tight-working cog in 
a national mechanism. A complete survey of American con- 
stitutional evolution must, therefore, take into account the 
tendencies in the evolution of state institutions. 

An " examination of the principal features of the early state 
constitutions reveals certain striking characteristics.^ They 
show, in the first place, an unUmited faith in the legislature, 
because they contain practically no limitations on the powers 
and procedure of that body. At the same time, they reveal 
a distrust of the executive by providing in many instances that 
the governor shall be elected by the legislature, and under all 
circumstances restricted to the exercise of a very Umited authority. 

^ The constitutions of the American states are to be found in Thorpe, 
The Federal and Slate Conslilulions , published by the federal government 
in ipog. 


The Evolution of State Constitutions 79 

Following colonial precedents, they impose property qualifica- 
tions, and in many cases religious tests as well, upon voters and 
office-holders. They, furthermore, provide that the state ex- 
ecutive officers, and especially the judges, shall be appointed, not 
elected in the modern fashion. Finally, the eighteenth-century 
constitutions are brief and simple in contrast to the bulky and 
complex documents of our time. The fundamental law of 
New Jersey adopted in 1776 fills only about five printed pages. 
The constitution of New York, drafted in 1777, including a re- 
print of the Declaration of Independence, covers less than sixteen 
printed pages, while the last constitution of New York, drafted 
in 1894, spreads over forty- three pages. The Virginia con- 
stitution of 1776, leaving out of account some passages from the 
Declaration of Independence, fills only about five and a half 
printed pages; the last Virginia constitution (1902) is ten times 
as large. The constitution-makers of Louisiana in 1898 required 
forty-five thousand words to write the fundamental law of that 
commonwealth; and the constitution of Oklahoma, admitted to 
the Union in 1907, would fill about one hundred and fifty printed 
pages of the style of this volume. 

The Rise of Political Democracy 

At the outset of an inquiry into the first state constitutions, 
one is struck by the fact that the Fathers, notwithstanding the 
theoretical assertion of equality in the Declaration of Inde- 
pendence, did not believe that the right to vote and hold office 
should be freely given to all men regardless of the amount of 
property they held or the religious opinions they entertained.^ 
In nearly every state, the suffrage was limited, by the constitu- 
tion or laws, to property-owners, generally freeholders or tax- 
payers, and in some of them religious tests were imposed in 
addition. In New York the constitution of 1777, adopted "in 
the name and by the authority of the good people" of the state, 
provided that "every male inhabitant of full age, who shall 
have personally resided within one of the counties of this state 
for six months immediately preceding the day of election, shall 
at such election be entitled to vote for representatives of the 
said county in assembly; if, during the time aforesaid, he shali 

^ Readings, p. 72. 

8o American Government and Politics 

have been a freeholder, possessing a freehold of the value oi 
twenty pounds within the said county or have rented a tenement 
therein of the yearly value of forty shillings, and been rated 
and actually paid taxes to this state." ^ No one could vote for 
state senator or governor in New York who did not possess 
a freehold of the value of £ioo, over and above all debts charged 
thereon. "The qualifications of electors," runs the South 
Carolina constitution of 1778, "shall be that every free white 
man, and no other person, who acknowledges the being of God 
and believes in a future state of rewards and punishments, and 
who has attained to the age of one and twenty years and has 
been a resident and inhabitant in this state for the space of one 
whole year . . . and hath a freehold of at least fifty acres of 
land or a town lot, ... or hath paid a tax the preceding year 
or was taxable the present year ... in a sum equal to the tax 
on fifty acres of land to the support of this government shall 
be deemed a person qualified to vote for, and shall be capable of 
electing, a representative or representatives to serve as a member 
or members in the senate and house of representatives." - 

Fearing that the interests of wealthier classes could not be 
sufficiently safeguarded by the restrictions placed on voters, 
the original constitution-makers imposed still higher qualifi- 
cations on representatives and senators. According to the 
terms of the New Hampshire constitution of 1784, every repre- 
sentative had to be a Protestant possessed of a freehold worth 
at least £100; the same religious test was placed on a senator, 
and the value of his freehold was fixed at £200. Only Protestants 

^All "freemen" of New York City and Albany could vote. See above, 
p 8. 

^ Property qualifications on voters for members of the lower house of the 
state legislature under the early state constitutions: New Hampshire (1784), 
taxpayer; Massachusetts (1780), freehold yielding £3 per annum or person- 
alty worth £60; New York as in text above; New Jersey (1776), estate 
worth ;^5o; Pennsylvania (1776), taxpayer; Maryland (1776), freehold of 50 
acres or property worth ;^3o; Virginia (1776), continued the colonial suflfrage; 
North Carolina (1776), fifty acres freehold to vote for senators, and taxpayer 
to vote for members of the lower house; South Carolina (1778), fifty acres 
freehold, town lot, or payment of taxes; Georgia (1798), taxpayer. Dr. Thorpe 
estimates that there were about one hundred and fifty thousand voters in a 
population of five millions, whereas under the suffrage prevailing to-day there 
would have been not less than seven hundred thousand or more than one 
miUion voters. ConstitiUional History of the American People, Vol, I, p. 97. 

The Evolution of State Constitutions 8i 

worth £500 in real and personal property could be assemblymen 
in New Jersey under the fundamental law of 1776, and whoever 
aspired to the place of senator had to have £500 more. In 
Delaware (1776), representatives had to be freeholders believing 
in the Trinity and the inspiration of the Scriptures. All except 
Protestants possessing two hundred and fifty acres of land or 
£250 in personal property were excluded from the Georgia 
legislature under the constitution of 1777; and in Pennsylvania 
only taxpayers acknowledging the being of God and beUeving in 
a future state of rewards and punishments could enter the 

As the dignity and responsibiUty of office in the early state 
governments increased, the property qualifications generally 
mounted upwards. The office of governor in Massachusetts 
and North Carolina was reserved to the possessors of freeholds 
worth £1000. ''No person," says the Maryland Constitution 
of 1776, "unless above twenty-five years of age, a resident of 
this state above five years next preceding the election, and having 
in the state real and personal property above the value of £5000, 
current money (£1000 whereof, at least, to be freehold estate), 
shall be eligible as governor." The law-makers of South Carolina, 
in 1778, swept away the comparatively slight qualifications im- 
posed on the governor two years before, and declared that the 
governor, lieutenant-governor, and members of the privy council 
must have "a settled plantation or freehold in their and each 
of their own right of the value of at least ten thousand pounds 
currency, clear of debt." In Massachusetts and Maryland, the 
highest executive office was closed to all except Christians, and 
in New Hampshire, New Jersey, North Carolina, and South 
Carolina to all except Protestants.^ 

^ Property qualifications of governors under the early state constitutions: 
New Hampshire (1784), £500, one-half freehold; Massachusetts (1780), 
j^iooo freehold; New York (1777), freehold; Maryland (1776), £sooo, at 
least £1000 of which is freehold; North Carolina (1776), £1000 freehold; 
South Carolina (1778), £10,000 freehold; Georgia (1789), Soo acres freehold, 
or £1000 other property. Property qualifications of members of state sen- 
ates under the early constitutions: New Hampshire (1784), £200 freehold; 
Massachusetts, ;^3oo freehold or ;^6oo personalty; New York (1777), free- 
holder; New Jersey (1776), ;£iooo; Delaware (1792), 200 acres freehold or 
£1000 real and personal property; Maryland, £1000 real and personal^ prop- 
erty; Virginia (1776), freeholder; North Carolina (1776), 300 acres in fee; 

82 American Government and Politics 

From the opening of the nineteenth century to the Civil War, 
there was throughout almost all the states a tendency toward 
the abohtion of these property qualifications and religious tests 
for voters and office-holders, although free negroes were not 
generally regarded as coming within the new democratic dis- 
pensation. This movement toward a direct male suffrage was 
the result of three main factors: (i) the growth of the mercantile 
classes, who were excluded in large numbers wherever the free- 
hold quahfication was imposed; ^ (2) the migration into the West, 
where, owing to the fact that every one was fairly well off so far 
as the rough necessities of Ufe were concerned, radical notions 
about the equality of all white men, at least, were ardently 
championed; and (3) the rise of the large urban populations where 
the agitation of democratic enthusiasts met a quick response. 
i;: If we take up the state constitutions at present in force, we 
find that, with a very few exceptions, all the property quah- 
fications and religious tests have disappeared, and that the only 
persons now generally excluded are women, lunatics, paupers, 
offenders against election laws, and persons convicted of serious 
crimes.^ Pennsylvania requires her voters to be contributors 
in some amount to state or county taxes; Louisiana and South 
Carolina permit persons owning $300 worth of property to vote, 
but provide alternatives to this qualification. Voters at elections 

South Carolina (1778), £2000 freehold; Georgia (1789), 250 acres freehold or 
property worth ;^25o. The following were the qualifications of members of the 
lower branch of the state legislature as prescribed by the early constitutions: 
New Hampshire (1784), two years' residence, estate of £100, one-half freehold 
in town of residence, and adherence to Protestant religion; Vermont (1786), 
two years' residence, belief in one God and the inspiration of the Scriptures, 
Protestant religion; Massachusetts (1780), one year's residence, freehold of 
;^ioo or other estate of ;^2oo. Christian religion; New Jersey, one year's resi- 
dence, ;;^5oo real and personal estate, Protestant religion; Pennsylvania 
(1776), two years' residence, taxpayer, Protestant; Delaware (1776), freeholder 
and believer in the Trinity and inspiration of the Scriptures; Maryland 
(1776), one year's residence, £500 real and personal property, Christian re- 
ligion; Virginia (1776), freeholders; North Carolina (1776), one year's 
residence, 100 acres for life or in fee, Protestant; South Carolina (1790), 
three years' residence, free white, owning freehold of 500 acres and ten negroes 
or real estate of £150 value clear of debt; Georgia (1777), one year's resi- 
dence, owner of 250 acres of land or ;i^25o in property, Protestant. (Based 
on Thorpe's valuable tables. Constitutional History of the American People^ 
Vol. I, pp. 68 ff.) 

* Readings, p. 78. 2 gee below, chap. xxii. 

The Evo/ution of State Constitutions 8j 

for city councillors in Rhode Island are required to be taxpayers 
on property worth $134; and in a few states the suffrage, in 
local matters, especially involving expenses for improvements, 
is restricted to property-owners. 

Property quaHfications for office-holders have also practically 
disappeared; but some remnants of religious ' restrictions are to 
be found in the constitutions of at least eight states — Arkansas, 
Mississippi, Maryland, North Carolina, South CaroUna, Texas, 
Pennsylvania, and Tennessee — all of which require belief 
in God as a quaUfication for office. The two states named 
last, Pennsylvania and Tennessee, require belief not only in God, 
but also in a future state of rewards and punishments. Never- 
theless, broadly speaking, we may say that a century's poHtical 
development has opened the electorate and public offices to all 
adult white males (and in fifteen states to women), regardless of 
their wealth or religious views. Its widening effect is revealed 
in the fact that, whereas about four per cent of the population 
possessed the right to vote just after the revolutionary period, 
about twenty per cent are now given the ballot. 

The story of the process by which this more democratic politi- 
cal system has been secured is a long and complicated one, 
and it cannot be told here.^ It has not been the result of any 
spontaneous and general action, but rather of many halting 
measures, tentative experiments, and minor modifications. Con- 
trary to popular impressions, Americans were not all convinced 
by the early arguments in favor of universal manhood suffrage; 
even Lincoln, in 1836, would go no further than to admit "all 
whites to the right of suffrage who pay taxes or bear burdens 
(by no means excluding females)." The only measures relating 
to suffrage which are applicable to the whole country are the 
Fourteenth and Fifteenth amendments to the federal Constitu- 

* " Eleven of the thirteen original states have abolished the tax and prop- 
erty tests, as follows: New Hampshire, the tax test in 1792; Georgia, the 
property test in 1789; Maryland, the property test in 1801 and 1809* 
Massachusetts, the property test in 1821; New York, the property test in 
1821 and the tax test in 1826; Delaware, the property test in 1831; Nev 
Jersey, the property test in 1844; Connecticut, the property test in 1845; 
South Carolina, the property test in 1865; North Carolina, the property test 
in 1854 and 1868; Virginia, the property test in 1850 and the tax test estab- 
lished in 1864, in 1882." Lalor, Cyclopedia of Political Science, Vol. IIL 
pp. 825-826. Details cannot be given here. Consult Thorpe, op. cit. 

^4 American Government and Politics 

tion. The latter amendment forbids states to deprive citizens 
of the vote on account of race, color, or previous condition of 
servitude. The former stipulates that whenever a state, for gene- 
ral purposes, denies the suffrage ^ to adult male citizens, its rep- 
resentation in the House of Representatives shall be reduced 
proportionately; but as this provision remains unenforced, its 
practical effect has not been to secure the results contemplated.^ 
In the original states, the property and religious qualifications 
have been removed by many separate measures. The process 
may be illustrated by some passages in the constitutional history 
of New York. The first constitution of that state, as we have 
seen, provided a property qualification for all voters (excepting 
the freemen of New York City and Albany), and for the governor 
and members of the legislature. The constitution of 182 1 still 
required the senators and governor to be freeholders, but widened 
the suffrage by the following provision: "Every male citizen 
of the age of twenty-one years, who shall have been an inhabi- 
tant of this state one year preceding any election, and for the 
last six months a resident of the town or county where he may 
offer to vote; and shall have, within the year next preceding the 
election, paid a tax to the state or county, assessed upon his real 
or personal property; or shall by law be exempted from taxation; 
or being armed and equipped according to law, shall have per- 
formed within that year military duty in the militia of this 
state; or who shall be exempted from performing militia duty in 
consequence of being a fireman in an} city, town, or village in 
this state; and also, every male citizen of the age of twenty-one 
years, who shall have been, for three years next preceding such 
election, an inhabitant of this state; and for the last year a 
resident in the town or county where he may offer his vote; and 
shall have been, within the last year, assessed to labor upon the 
pTiblic highways, and shall have performed the labor, or paid an 
equivalent therefor, according to law, shall be entitled to vote 
in the town or ward where he actually resides, and not else- 
where, for all officers that now are, or hereafter may be, elec- 
tive by the people; but no man of color, unless he shall have 
been for three years a citizen of this state, and for one year 

* Except for participation in rebellion or other crime. 
' See below, chap. xxii. 

The Evolution of State Constitutions 83 

next preceding any election, shall be seized and possessed of a 
freehold estate of the value of two hundred and fifty dollars, 
over and above all debts and mcumbrances charged thereon, and 
shall have been actually rated, and paid a tax thereon, shall be 
entitled to vote at any such election. And no person of color 
shall be subject to direct taxation unless he shall be seized and 
possessed of such real estate as aforesaid." 

Finally in an amendment adopted in 1826 popular suffrage 
was estabUshed by the provision that "every male citizen of the 
age of twenty-one years, who shall have been an inhabitant of 
this state one year, next preceding any election, and for the last 
six months a resident of the county where he may offer his vote, 
shall be entitled to vote ... for all officers that now are or 
hereafter may be elective by the people." The special property 
qualifications imposed on "persons of color " by the constitution 
of 182 1 were continued and were retained until after the Civil 
War.^ By an amendment in 1845 it was added that "no prop- 
erty qualification shall be required to render a person eligible 
to, or capable of holding any public office or public trust in this 

Even many of the western states began their history with a 
restricted suffrage. Ohio came into the Union in 1802, with a 
constitution limiting the suffrage to "all white males above the 
age of twenty-one years, having resided in the state one year 
next preceding the election, and who have paid or are charged 
with, a state or county tax." Senators and representatives 
hkewise had to be state or county taxpayers. It was expressly 
declared, however, that "no rehgious test shall be required as a 
qualification to any office of trust or profit." These property 
qualifications were abolished by the new constitution of 185 1; 
but negro suffrage was not granted until after the adoption of 
the Fourteenth Amendment. Ilhnois, admitted in 181 8, imposed 
no rehgious tests, and admitted free white males to the ballot, 
but required her representatives and senators to be taxpayers, 
a restriction which w^as swept away in 1870.^ Michigan came 
into the Union in 1835, without any religious or property quaUfi- 
cations for electors or officers. This example was soon followed by 

* Removed by an amendment ratified in 1874. 

2 Indiana, admitted in 1816, had similar qualifications. 

86 American Government and Politics 

the other states ; and, by the end of the first half of the nine- 
teenth century, the United States was practically committed to 
the great experiment of white male suffrage. 

The Civil War then raised the question of negro suffrage. 
At the beginning of the Republic the number of free negroes 
was so small that the problem did not attract serious attention, 
and some of the northern states did not exclude them from the 
suffrage. Soon, however, there appeared a decided feeling 
against granting them the ballot. Some of the states withdrew 
the privilege they had bestowed ; and the newer western com- 
monwealths quite uniformly decided in favor of restricting the 
franchise to white men. 

Then came the great conflict, at the close of which the tri- 
umphant Republicans by military force compelled the accept- 
ance of the Fourteenth and Fifteenth amendments, designed to 
sweep away all property qualifications and race distinctions.^ 
As soon as the hold of the northern mihtary authorities was 
loosened, the southern whites determined to deprive the negroes 
of the rights which had been newly forced upon them ; and by a 
number of ingenious devices, hardly escaping the letter, and 
certainly not the spirit, of the federal Constitution, they suc- 
ceeded in disfranchising perhaps nine-tenths, or more, of the 
colored voters. Among these devices are provisions requiring 
electors to read and write, imposing property qualifications, and 
admitting those who voted, or whose fathers or grandfathers 
were entitled to vote, in 1867.2 

Agitation for woman suffrage began in the United States 
long before the Civil War. In 1867 the territory of Wyoming 
gave the ballot to women about the time an amendment to 
the federal Constitution establishing woman suffrage was intro- 
duced in Congress. After fifty years of agitation Congress, 
on June 4, 191 9, submitted to the states for ratification a 
resolution that the vote should not be denied to any citizen on 
account of sex. 

Decline in RepresetUative Assemblies 

With the growth of confidence in the capacity of the broad 
mass of the people to govern themselves through the exercise 

1 See below, chap, xxii ; and Readings, pp. 393, 394. 
* Readings, p, 401. 

The Evolution of State Constitutions 87 

of the franchise, there came a remarkable decline of confidence 
in representative assemblies. This decline is written large in 
every state constitution framed since the first quarter of the 
nineteenth century. The reckless and corrupt manner in which 
legislatures bartered away charters, franchises, and special 
privileges to private corporations led our constitution-makers 
to provide long and detailed Usts of matters on which the legis- 
latures are absolutely forbidden to act.^ To secure pubHcity 
and prevent sinister influences from working by secret methods, 
the newer constitutions contain provisions controlling legislative 
procedure.^ Extravagance and recklessness in laying taxes and 
making appropriations have brought about a series of provisions 
placing Umits upon the borrowing power of our state legislatures .'' 
Constant interference with the local affairs of cities has 
been met by numerous devices designed to safeguard mimicipal 
autonomy.'* In every state, except one, each legislative act must 
now be approved by the governor, and if it is vetoed it must be 
repassed, generally by an extraordinary majority, before it can 
become a law. Finally, the crowning act of distrust in the 
integrity and responsibility of the legislature has been manifested 
by the estabhshment, in many states, of the initiative and refer- 
endum, which gives to the voters the right to make laws without 
even the intervention of the legislature.^ 

With this growing distrust in representative assembHes has 
come a remarkable increase in the confidence displayed in execu- 
tive authority. As a result of the bitter conflicts between 
colonial legislatures and royal governors, the early constitution- 
makers had come to distrust the executive and to fear its 
transformation into a monarchy through usurpations. So great 
was their apprehension at the outset, that they empowered the 
legislature even to choose the governor in aU of the colonies 
except New York and Massachusetts, where he was elected 
by popular vote. His term of office was usually fixed at 
one year; in most cases he was even deprived of the veto 
power; and in the exercise of such authority as' was given him 
he was often controlled by a council. In Pennsylvania, for 
example, the governor bore the more democratic title of president; 
he was elected by a joint ballot of the general assembly and the 

^ See below, chap, xxv, and Readings, pp. 84, 458. ^ Readings, p. 457. 
''/i/ji.jpp. 459ff. */&«/., p. 512. ^ /6/J, pp. 413 ff. 

88 American Government and Politics 

council for a term of one year; he enjoyed no authority in sum- 
moning or dissolving the legislature; he was not granted the 
veto power; and he was controlled to a considerable extent by 
an elective council. In New York, where the governor was 
elected by the freeholders for a term of three years, his veto 
power was shared by a council of revision composed of the chan- 
cellor and judges of the supreme court; and his appointing power 
was held in check by a special council of senators chosen by the 

This executive system was not long in operation before the 
distrust in the integrity and capacity of the legislature, noted 
above, led to a call for the increase of the governor's power. 
Pennsylvania, revising in 1790 the constitution framed in the 
year of Independence, vested the election of the governor in the 
citizens of the commonwealth, lengthened his term from one to 
three years, and gave him the veto power. New York, in 
182 1, aboUshed the councils of revision and appointment, that 
shared the governor's ^^eto and appointing power. Virginia, 
in the revision of 1830, retained the method of electing the gov- 
ernor by the legislature, but at that time increased his term to 
three years. The new western states, Kentucky in 1792, Ohio 
in 1802, Indiana in 1816, Michigan in 1835, provided for popular 
election — examples which were followed by the neighboring 
commonwealths as they were gradually admitted to the Union. 
In 1788 only two states. New York and Massachusetts, gave the 
governor the veto power, and the former with limitations on its 
exercise ; but in 1920 only one state, North Carolina, withheld 
it. More than twenty states have extended the term of office 
to four years; even Massachusetts and Rhode Island at last 
surrendered the early plan of annual elections. Moreover, the 
governor has now won a recognized place as political leader and 
assumes a large share of responsibility for the legislative as well 
as the executive poHcy of the state government. 

The State Judiciary 

Many radical changes have been made in the judicial system 
of our commonwealths.^ The first state constitutions contained 
very few provisions with regard to the judiciary; they left the 

* See below, chap. xxvi. 

The Evolution of State Constitutions 89 

question of the organization of the courts and distribution of 
jurisdiction principally to the legislature. In the beginning of 
our history, the judges of the higher courts were universally 
appointed, and held their offices during good behavior. Most 
of our constitutions, however, no'w provide that judges shall be 
elected by popular vote, usually for short terms. Only a few 
states have retained the ancient system. 

In s6me of the newer states, we find radical departures from 
the traditional Anglo-Saxon legal doctrines.^ For example, in 
Oklahoma, prosecution by grand jury has been partially set 
aside in favor of prosecution by information; in county courts 
and courts not of record the petty jury is to consist, not of twelve, 
but of six men; and in civil cases and criminal cases involving 
crimes less than felony, unanimous verdict is not required, but 
three-fourths of the whole number of jurors may render a verdict. 
The ancient rule of law that a person is not required to give 
evidence tending to incriminate himself when testifying against 
any other person or corporation is abrogated in Oklahoma; and 
every person accused of violating or disobeying an injunction 
out of the presence or hearing of the court is entitled to trial by 
jury — the right of a hearing being guaranteed in all cases before 
the imposition of any penalty or punishment for contempt. In 
order to expedite judicial business, a few states have resorted to 
the drastic device of refusing to pay the supreme court justices 
until they have finally decided the cases before them; and 
Oklahoma provides that they must render an opinion in every 
case within six months after it has been submitted. 

The Multiplication of Elective Offices 

We began our political history with a small number of elective 
offices — a short ballot. Under the first constitution of New 
York (1777), the governor, the lieutenant-governor, and the 
members of the legislature were the only state officers elected by 
popular vote; all others were selected by the council of appoint- 
ment, consisting of the governor and four senators chosen by the 
assembly. Even sheriffs, county judges, and other county 
officers were appointed in the same manner. The first constitu- 
tion of Virginia vested the choice of the members of the legisla- 

^ Readings, pp. 87 ff. 


American Government and Politics 

ture in the voters; the governor and other state offisers were 
elected by joint ballot of the legislature; the justices of the peace 
were appointed by the governor; the sheriffs and coroners were 
appointed by the respective courts. Under the Massachusetts 
constitution, at first the governor, the lieutenant-governor, and 
the members of the legislature were elected by popular vote; 
the leading state officers were chosen by the legislature, and the 
minor state ofiicers and some local officers were appointed by the 
governor. This general plan was adopted in the western states 
also. The Ohio constitution of 1802 provided that only the 
governor and the legislature should be elected by the people, and 
that the other state officers should be chosen by joint ballot of 
both houses. 

As indicated above, our institutions underwent a democratic 
revolution, or what purported to be a democratic revolution, 
during the first half of the nineteenth century. Property and 
religious tests were swept away; the suffrage was extended to 
nearly all white males; and a multitude of appointive offices were 
made elective. The whole process is illustrated in the constitu- 
tional evolution of New York. The constitutional revision of 
1 82 1, wliich aimed to abolish the council of appointment rather 
than to democratize the entire system, left the leading state 
officers, except the governor and the lieutenant-governor, appoin- 
tive, and gave the appointing power to the legislature.^ The 
great revolution came in 1846, when the governor, lieutenant- 
governor, secretary of state, comptroller, treasurer, attorney- 
general, state engineer and surveyor, canal commissioner, inspec- 
tor of state prisons, the judges of the court of appeals and the 
justices of the supreme court, were made elective. A similar 
revolution occurred in all except a few states. New Jersey, for 
instance, escaped the tidal wave; the constitutional revision of 
1844 left the judges and nearly all the state officers appointive. 

It is commonly supposed that this great democratic upheaval 
was due to the leaven of French political philosophy working 
through Jeffersonian democracy. It is true that the notion of 
elective government was prominent in the philosophy of many 
French publicists; it was inherent in Rousseau's popular sover- 
eignty, and found its way with a vengeance into the revolution- 

^ Except as to the judges. 

The Evolution of State Constitutions 91 

ary constitution of 1791, until the poor clodhopper's head, as 
Napoleon put it, was addled with elections. It is likewise true 
that Jefferson included elective government among the cardinal 
principles of his system. "We believed," he said, "that man 
was a rational animal, endowed by nature with rights and with 
an innate sense of justice; and that he could be restrained from 
wrong and protected in right by moderate powers confided to 
persons of his own choice and held to their duties by dependence 
on his own will." ^ It is also true that the doctrine of an elective 
administration was propagated with great zeal by democratic 
enthusiasts during the sixty years that followed the establishment 
of our independence — - propagated with such zeal that the peo- 
ple were converted and the notion was hardened into a political 

Nevertheless there were potent forces besides "political prin- 
ciples" which precipitated this revolution. It requires no very 
deep research to discover that the appointive system worked 
badly in a large number of cases. A study of the debates of 
the state conventions which overthrew the older system yields 
abundant evidence in addition to that afforded by the con- 
troversial literature of the time. The early constitution-makers 
did not adopt a system that would fix responsibility. They 
were too much afraid of the governor, not merely on account 
of their republican ideas, but on account of their practical ex- 
perience with the colonial governor, to intrust him with a con- 
siderable appointing power. In New York (i 777) , his appointive 
authority, as we have seen, was shared by a council of appoint- 
ment, constructed by the following process. Once a year the 
assembly selected a senator from each of the four great districts 
into which the state was divided, and the four senators with the 
governor constituted the council; the governor was the presiding 
officer and had a casting vote only. In actual practice each 
member of the council claimed a nominating power equal to that 
of the governor, and until its abolition in 182 1 this body was the 
centre of notorious partisan intrigues over patronage. 

In denouncing the system in his message of 1820, Governor 
De Witt Clinton said: "The offices in the gift of this council 
are remunerated by salaries or fees to the amoimt of a million 

^Readings, p. 93. 

92 American Government and Politics 

dollars annually. Combinations will be formed to obtain con« 
trol of this enormous patronage. And they will attempt to 
influence, in the first place, the elections of the people, by dictat- 
ing under the forms and discipHne of party; secondly, the selec- 
tion of the appointing power; and thirdly, the operations of that 
institution. . . . With this principle of irritation i:i our con- 
stitution, the hydra of faction will be in constant operation, 
endeavoring to make its way to power sometimes by open denun- 
ciation, at others by secret intrigue, and always by artful ap- 
proaches. The responsibility of public officers is essential to the 
due performance of their trust,'and is demanded by the properties 
of delegated power and the best interests of the community. 
The council as constituted is almost destitute of this essential 
attribute. The political tranquillity of the state demands a 
different arrangement of the appointing power.*" In short, 
it is difl&cult to imagine a system better calculated to introduce 
obscurity into the administration of a state.^ 

In the other commonwealths the appointing power was vested 
in the legislature or in the governor and senate, or distributed 
in such a way as to confuse responsibilities, entangle the legis- 
lature in administrative functions, and prevent the leading state 
offices from falUng wholly under the control of any person or 
body of persons. The natural consequence seems to have been, 
in nearly every case, that the appointing power passed from the 
public authorities in which it was vested by law into the hands of 
organizations unknown to the law and only slightly or not at all 
subject to the pressure of public opinion. Appointment by the 
legislature on a large scale was a new experiment in American 
politics, for the power had not been generally exercised by 
colonial legislatures; ^ and it required very little experience to 
demonstrate that appointment by a numerous assembly was 
about the most successful way of destroying responsibility that 
could have been devised. 

The recognition of this fact is apparent in the debates of the 
mid-century conventions that overthrew the appointive system. 
The experiment, tried under the New York constitution of 182 1, 

* Cited in Lincoln, The Constitutional History of New York, Vol. Ill, p. 615. 
2 See Gitterman, "The Council of Appointment in New York," in the 
Political Science Quarterly, Vol. VII, pp. 80 ff. 
^ Except in New England. 

The Evolution of State Constitutions 9J 

of allowing the legislature to select some officers and the governor 
and senate to select others did not work much better than the 
old council of appointment; for an extra-legal machine known as 
the "Albany regency" sprang up and controlled all appointments 
by secret operations in the legislature. Appointment to office 
by the legislative department, said Mr. Williams in the Ohio 
convention of 1850, "has tended to embitter party spirit and 
convert the general assembly into a mere political arena, and to 
some extent corrupt the pure fountain of legislation. ... It 
is very certain that the principle which gives directly to the 
sovereign people the sole power of appointments to office is gain- 
ing ground." ^ 

This view is confirmed by Rufus King in his work on Ohio. 
The legislature, he writes, "overloaded with the appointing power 
which had been taken away from the executive, became so much 
depraved in the traffic of offices, that in an assembly where there 
was a tie vote between the Democrats and Whigs, two Free 
Soilers held the balance of power and were permitted to choose 
a United States Senator in consideration of giving their votes 
for every other appointment to the party which aided them in 
this supreme exploit of jobbery." ^ The transformation of the 
legislature into a chamber of intrigue for office-hunters also 
occurred in IlUnois.^ In short, it seems to have happened in 
every state that tried the system. 

This unhappy experience with a variety of appointing schemes, 
and certain prevalent theories of democracy brought our state 
constitution-makers gradually to the acceptance of the plan of 
popular election as the remedy for the evils which had sprung 
up and also as the goal of our political development. One after 
the other the old offices were made elective, and, as newer state 
offices of importance were created, the principle was appHed as a 
matter of course. When it was suggested in a convention or 
legislature that the governor might appoint a state auditor or 
engineer or veterinarian, some advocate of fundamental democ- 
racy was sure to plead in tremulous tones the rights of the people. 
"I believe the voters of this commonwealth are competent to 

^ Debates and Proceedings of the Convention for the Revision of the ConstitU' 
Hon of the State of Ohio (1850-51), Vol. I, p. 87. 
^King, Ohio, p. 291. 
^ Davidson and Stuve, History of Illinois, pp. 297 Q, 

94 American Government and Politics 

elect their treasurer," exclaimed Mr. Hanks in the Kentucky 
convention of 1890, when it was proposed to give the g^ernor 
the power to appoint the officer ; "I know full well that they are 
able to elect a governor. ... I love our form of government 
. . . but while I love it, I loathe in the deepest recesses 'of my 
heart any effort whatever that will go in the direction of taking 
from the people of Kentucky the right to choose their own 
officers." 1 

An attempt to centralize responsibility in the office of gover- 
nor was made by the Constitutional Convention of New York 
in 191 5. Nearly all the branches of administration were to be 
combined in a few departments each headed by an officer ap- 
pointed by the governor. The proposal was defeated by the 
voters at the polls. Massachusetts, however, took a long step 
in the direction of enlarged executive authority in constitutional 
amendments ratified in 191 8. 

In close connection with the doctrine that all public officers 
should be elected is the notion of ''rotation in office," ^ which 
assumed such a large place in the political philosophy of Jack- 
sonian democracy that it may best be described in Jackson's own 
words : ''There are, perhaps, few men who can for any length of 
time enjoy office and power without being more or less under 
the influence of feelings unfavorable to the faithful discharge of 
their public duties. . . . Corruption in some and in others a 
perversion of correct feelings and principles divert government 
from its legitimate ends and make it an engine for the support 
of the few at the expense of the many. The duties of all pubUc 
oflScers are, or at least admit of being made, so plain and simple 
that men of intelhgence may readily quahfy themselves for their 
performance ; and I can not but believe that more is lost by the 
long continuance of men in office than is generally to be gained 
from their experience." ^ 

Miscellaneous Matters * 

In addition to these significant changes in the structure of 
American commonwealth government, as it was conceived in 

^ Debates in the Kentucky Constitutional Convention, 1890, Vol. I, pp. 1419 ff, 
^Readings, p. 81. 

^ Richardson, Messages and Papers of the Presidents, Vol. II, pp. 442-462 
* See below, especially, chaps xxii-xxv; and Readings, pp. 87 ff. 

The Evolution of State Constitutions 95 

early times, we find, in our newer constitutions, a large number 
of sections relating to matters which were either neglected in the 
eighteenth century or intrusted to the discretion of the legislature, 
or which have arisen during the nineteenth century. Indeed 
our state constitutions mainly reflect the principal legal adjust- 
ments which have accompanied the material development of our 
country and are, in fact, well-nigh meaningless to any one not 
acquainted with the course of our economic evolution during the 
nineteenth century. Our recent constitutions make elaborate 
provisions for the control of railway and other corporations; 
they contain sections in behalf of labor; they provide in more or 
less detail for popular education; they take into account the 
special legal problems created by the rise of the great cities. 
Several of them make special recognition of the changed position 
of women in modern society by abrogating the old English legal 
doctrines in accordance with which her personaUty was merged 
in that of her husband while her property passed into his pos- 
session or control. Several of our state constitutions expressly 
provide that women may acquire and possess property of all 
kinds separate and apart from their husbands; and specifically 
abolish all distinctions between men and women with regard to 
the right to acquire, enjoy, and dispose of property and make 
contracts in reference thereto. Some of the newer constitutions 
also contain special provisions in behalf of women employed 
in industries.^ 

^ Dr. W. F. Dodd sums up in a scholarly review the recent tendencies in 
state constitutional developments as follows: " (i) The disappearance of the 
distinction in form of enactment between statutes and constitutional amend- 
ments in the states which have adopted the initiative and referendum. (2) 
The increase of popular control over state legislation through the spread of 
the initiative and referendum, and through the enactment of statutory matter 
by constitutional amendment. (3) The increase of popular control in towns 
and cities through the granting to cities of power to frame their own charters, 
and through restrictions placed upon state legislatures as to local and special 
legislation; and through the introduction of the local initiative, referendum, 
and recall. (4) The slight increase in the power of the governor over the 
state administration, and the great increase of the governor's power over 
legislation. (5) The continued diminution of the power of state legislatures, 
through the adoption of methods of popular legislation, through express pro- 
hibitions upon legislatures with reference to special and local legislation, and 
through the increased power granted to the governor over legislation. (6) 
The efforts to subject public service corporations to more adequate control." 
Proceedings of the American Political Science Association, 1908, pp. 149-164. 

96 American Government and Politics 

Development in the Process of Constitutional Amendment'^ 

When the sovereignty of the British crown and parUament 
was thrown off, the Revolutionists naturally declared that the 
popular will was the basis of all government. The right of the 
people to alter or aboUsh, and to institute new forms of govern- 
ment on such principles and with such powers as might to them 
seem most Hkely to effect their safety and happiness was laid 
down in the Declaration of Independence. Notwithstanding 
this, it was a long time before the state constitution-makers 
came to see that, according to this great democratic theory, every 
fundamental law ought to provide for a simple mode of amend- 
ment through which, from time to time, the electorate might 
alter or reconstruct the system of government. A number of 
the first state constitutions made no provisions whatever for 
amendment, and nearly all of them were put into operation with- 
out being submitted to popular ratification. This was due to 
the confusion of the Revolutionary days during which the con- 
stitutions were drafted, to a failure to distinguish between con- 
stitutions and statutes, and to the generally prevaiUng notion 
that a convention composed of delegates chosen by the electorate 
had the sovereign power to frame new governments. And, as a 
matter of practice, amendments were made from time to time, 
and new constitutions were drafted, by conventions summoned 
on the mere call of the legislatures without any higher sanction. 
This seems to have been recognized as a regular method; for, 
with the exception of the Vermont constitution of 1793, none of 
the constitutions framed before the opening of the nineteenth 
century provided that amendments, whether made by the legis- 
lature or a special convention, should be submitted to popular 

It was therefore only by a gradual process that our constitu- 
tion-makers arrived at anything like the complete and elaborate 
system of amendment to be found in the most carefully pre- 
pared fundamental laws of our day, such, for example, as that of 
New York. This process, according to Professor Garner, has 
four stages. In the closing decades of the eighteenth century 
it was the common practice to make no provision at all for amend- 

* See article on Amendment Systems by Professor J. W. Gamer, American 
Political Science Review, February, 1907. 

The Evolution of State Constitutions 97 

ments; (i) during the first half of the ninetenth century the 
method of amendment by convention was fairiy well developed; 
(2) immediately preceding and following the Civil War the more 
simple method of alteration through a legislative enactment 
ratified by the voters was widely adopted; (3) during the three 
or four decades immediately following the Civil War the system 
of double amendment through periodic conventions and legisla- 
tive enactments popularly ratified was worked out; and (4) 
within the last decade has come the still more complete and 
democratic system of amendment through the popular initiative 
and referendum. 

The effect of this simplification in the amending process is 
apparent at a glance. Any one who examines the recent history 
of state constitutions will be struck by the frequency with which 
they are being revised and amended. The southern states have 
made the most frequent constitutional changes, but this has 
been largely due to circumstances connected with the Civil War. 
Alabama has had five constitutions, Georgia six, Louisiana seven, 
Maryland four. South Carolina six, and Virginia six. 

Within twenty years no less than seven states — New York 
(1894), South Carolina (1895), Delaware (1897), Louisiana (1898), 
Alabama (1901), Virginia (1902), and Michigan (1908) — drafted 
new constitutions.^ Furthermore, owing to the great detail in 
which our constitutions are now being elaborated, frequent 
amendments, usually of minor importance, are required. New 
York, between 1894 and 19 14, adopted more than twenty-five 
amendments ; and there is scarcely an election at which some 
alteration in the constitution is not submitted to the voters for 

In 191 2, Ohio held a fourth constitutional convention which 
submitted to the voters forty-one amendments "radically alter- 
ing the existing instrument and practically estabHshing a new 
constitution." Thirty-three of the propositions were approved 
and eight rejected. In 191 5, the state of New York drafted 
a new instrument making more drastic changes in the structure 
of state government than had ever been proposed in any state, 
including a highly centralized administrative system and an 
executive budget. It was rejected at the polls by an overwhelm- 

1 See American Year Book for an annual review of amendments to state 

98 American Government and Politics 

ing vote. The Arkansas convention, assembled in December, 
191 7, submitted to the voters (191 8) a new instrument, only to 
have it defeated at the polls. In June, 191 7, Massachusetts 
witnessed the meeting of the fourth convention in the history 
of the state. In the autumn of that year a few amendments 
were ready for the voters and after prolonged sessions the con- 
vention submitted, in 1919, another Hst of amendments. The 
new provisions approved by the electorate brought about some 
rather radical changes in the Constitution of 1780, but an at- 
tempt was made to preserve, as far as possible, the language of 
that venerable instrument. Among the more important changes 
were : (i) prohibition of public aid to sectarian schools, (2) the 
initiative and referendum, (3) extension of the term of governor, 

(4) consolidation of the state ofl&ces, boards, and commissions, 

(5) and an executive budget system. In 191 7 the Indiana legis- 
lature called a convention to revise the constitution, but the 
measure was set aside by the supreme court of the state on the 
ground that it had not been submitted to a vote of the people. 
In 1920 constitutional conventions assembled in Illinois and 
Nebraska, and proposals for a thoroughgoing reconstruction 
of the machinery of state government were taken under con- 

A survey of our state history during the last quarter of a 
century undoubtedly reveals that our commonwealth constitu- 
tions are becoming more and more cumbersome and complex; 
and affords but little consolation to those who beUeve, with 
President Woodrow Wilson, that ''the prompter we grow in 
applying with unhesitating courage of conviction all thoroughly 
tested or well-considered expedients necessary to make self- 
government among us a straightforward thing of simple method, 
single, unstinted power, and clear responsibility, the nearer we 
approach to the sound sense and practical genius of the great 
and honorable statesmen of 1787." 



The Place of Parties in the Process of Government} 

A CITIZEN might know all the written provisions of the federal 

and state constitutions, and the names of all the legislators and 
public officers, their terms, qualifications, emoluments, and 
statutory duties; he might be famiUar with the decisions of the 
Supreme Court on every important point of constitutional law 
and with the organization of every department of the federal 
and state governments — in short, he might be intimately ac- 
quainted with law and juristic theory — and yet not understand 
the government as a going concern; because the government 
is not a group of rules but a group of persons engaged in various 
pubHc occupations, one portion devoting its attention principally 
to making laws and another to carrying them into execution. 
Blackstone, therefore, had a very precise notion of the true nature 
of a government when he treated it as an aggregate of persons 
having rights and duties. However much we may talk of a 
"government of laws and not of men," it remains a fact that every 
act of the government is an act of a certain person or of certain 
groups of persons; and in official, as in private life, men do not 
always observe formal rules. They make agreements among 
themselves, they have many temporary and permanent under- 
standings, and they hold innumerable conferences of every sort 
which are unknown to law but wliich are nevertheless indispen- 
sable in carrying on the operations of government. It is apparent, 
therefore, that government is not a mechanical thing, but when 
properly understood is simply an association of men engaged in 
doing certain things which we separate from the ordinary occu* 
pations of life and call "poUtical." 

* On this important tc^ic, see Bentley, The Process of Government. 

100 American Government and Politics 

The particular individuals who shall be selected to constitute 
the governing group; the organization of the various subdivisions 
of the government; and the character of the laws the group in 
power shall make and enforce are matters which very deeply 
concern social welfare and impinge upon many private interests. 
Inevitably those who possess the power of determining these 
matters, which affect some favorably and others unfavorably, 
become divided into groups. Thus poUtical parties originate; 
and inasmuch as the necessity of choosing officers and deciding 
upon pohcies of government are constantly recurring, each polit- 
ical party tends to become a permanent organization, with offi- 
cers and privates standing beside and minghng with the group 
engaged in the governing process. It sometimes happens that 
the leader of a party in a city is more powerful than the mayor; ^ 
that the chairman of a state committee controls the governor; 
and that the chairman of the national committee may dictate 
terms to the President of the United States.^ Furthermore, it 
often happens that the officials of the government are at the 
same time officials in some party organization; and, generally 
speaking, the party leaders are men who hold, or have held, or 
hope to hold political positions. 

The relations between the group of men actually engaged in 
governing and the group of men constituting the party in power 
are so intimate and so subtle that no one can draw the line sep- 
arating them, and say, ''Here the government begins and the 
party ends." Even the chief executive of the United States is 
coming to be regarded as the greatest leader of his party,^ and 
on this account recent Presidents have felt justified in taking 
a prominent place in party councils, and bringing their personal 
influence to bear in the formulation of party policies. Moreover, 
each party in Congress has its congressional committee charged 
with the function of propagating the principles of the party, 
advancing its interests at each congressional election, and secur- 
ing the control of the federal legislature. 

It is not only in elections that there is an intimate relation 
between government and party. Under ordinary circumstances, 
the President, in performing his constitutional duties, is bound 

* See Readings, p. 125. ^ Ibid., p. 169. 

* For Mr. Taft's view, see below, chap, x; Readings, p. 265. 

Political Issues in the United States loi 

to consult the interests of his party, by taking the advice and 
counsel of its leaders; and this influence of party runs through- 
out the entire government. Theoretically, the President nomi- 
nates officials with the advice and consent of the Senate; but in 
actual practice the President does not have a free hand in mak- 
ing nominations. Quite to the contrary; the nominations for 
most of the ofl&ces are made in close consultation with the 
members of the President's party in the Senate or in the House 
of Representatives. Theoretically, the President should formally 
consult with the Senate on the making of treaties; practically 
many an important treaty is settled at a dinner-table, where 
the influential party members in the Senate are present. Theo- 
retically, laws are made by the Senate and House of Represen- 
tatives; practically they are made by the party in power under 
the direction of the party leaders, and in the actual process of 
law-making there are innumerable joint and separate party 

To many persons this intimate relation between government 
and party seems undesirable, and no doubt many evils arise 
from the fact. Nevertheless, inasmuch as a government is not a 
mechanical thing to be operated with scientific precision, but a 
human institution, with a poHcy to execute and duties to perform, 
parties are inevitable — as ine\dtable as the separate groups and 
interests from which spring different opinions on the functions 
and policies of the government. 

Moreover, three features in the structure of our federal system 
make party government and strong party organization indis- 
pensable if the will of the voters is to be realized.^ In the first 
place, the legislative powers are divided between the federal 
Congress and the state legislatures, so that if a party has a 
policy that requires federal and state legislation it must be in 
power in both governments. For example, if a party wants an 
interstate commerce law, it must go to Washington; if it wants a 
supplementary law regulating commerce within the state in a 
manner consistent with the federal law, it must go to the state 
legislatures. If a party, therefore, has a systematic and rational 
poHcy with regard to the important questions of our day relative 
to railway, insurance, and trust regulation, it must embrace 

* This is the thesis of Professor Goodnow's Politics and Administration, 

102 American Government and Politics 

within its plans federal and state laws; and in order to realize 
completely its policy, it should be strong enough to control state 
and national legislatures. 

In the second place, the theory of the separation of executive 
and legislative powers serves to strengthen the political party; 
for popular government, as is now generally recognized, requires 
the coordination of the executive and the legislature/ To take 
a homely example from daily Hfe: no business man who has made 
up his mind that a certain thing should be done would think for 
a moment of choosing to do his will an agent who was bitterly 
opposed to the plan; and yet this is exactly what may happen 
and does often happen in American government. It frequently 
occurs that the legislature of a state is Republican and the gov- 
ernor Democratic; that is, men are chosen to make laws which 
are to be enforced by an executive whose party may be in violent 
opposition to those very laws. In order, therefore, for popular 
government actually to exist, it is necessary that those who have 
decided upon a certain public policy should control not only the 
makers of law, but also the principal officials charged with its 
execution. In England, this fact is frankly recognized in the 
unwritten constitution; for the executive branch, that is, the 
Cabinet composed of the heads of departments, is selected from 
the party which has a majority in the House of Commons. The 
makers of the law and those charged with its execution are one. 
In the United States, however, this coordination of the legisla- 
ture and the executive must be secured outside of the written 
law; and it is the party system which makes it possible. It is 
through the party that there are nominated for the legislature 
and executive positions, candidates who are in a fair degree of 
harmony with one another, and who, if elected, can work con- 
sistently together to carry out the will of the voters expressed at 
the ballot-box. 

In the third place, the American system of electing so many 
pubKc officers both facihtates and renders necessary strong party 
organization. In almost every election there are so many dif- 
ferent officials to be selected, that even the most intelligent citizen 
cannot be expected to make a wise choice. Accordingly, he is 
compelled to depend more or less upon the judgment of his party; 

* Goodnow, ibid., p. 24.. 

Political Issues in the United States 103 

and in actual practice he often follows the advice of President 
Harrison: "Let us all consider the history and declarations of the 
great parties, and thoughtfully conclude which is more likely to 
promote the general interests of our people." Having selected 
his party, the citizen then relies largely upon the integrity and 
the wisdom of its leaders in the selection of nominees for various 

Therefore, the close relations existing between the government 
and the majority party; the functions of the party as an instru- 
ment for expressing and enforcing pubUc will; the influence of 
the party on the theory and practice of our government; and 
finally the position of the party as the organizing and directing 
force in American political life — these factors make the study 
of party poUtics, in its origin and development, quite as impor- 
tant as the study of the framework of the government. 

Origin of Parties in the United States 

On no matter were the framers of the federal Constitu- 
tion in more complete harmony than on the undesirability 
of party politics. It must be remembered that they worked 
at a time when the modern democratic idea of an unlimited 
and responsible government was not recognized. The govern- 
ment of England, which was their principal model, had not 
reached its present form, in which the king reigns but does 
not rule, while the majority in the House of Commons controls 
all the executive officers through whom the actual administration 
is carried on. England's government in the eighteenth century 
had passed out of the absolute stage in which the king made laws, 
appointed ministers, declared war, and conducted foreign affairs 
at his own pleasure; but it had not passed into that modern stage 
in which the will of the electors, expressed through the party, 
dominates the whole machinery of government.^ When our 
forefathers were busy framing the federal Constitution, the 
English government was at a halfway point between these two 
stages. Party government was not then frankly recognized; 
it was not finally settled that the king must select his ministers 
from the party in power; and the democratic doctrine that the 

^ On this point, see below, chaps, xxiii and xxx. 

^ See J. Allen Smith's suggestive work, The Spirit oj American Government. 

104 American Government and Politics 

will of the electors must control the legislature and the executive 
was not yet accepted. Nevertheless, the possibility of demo- 
cratic government was known and feared, and in framing our 
federal Constitution, the members of the Convention, as we have 
seen, had constantly in mind plans to break the force of majority 
rule. ii 

The Fathers not only sought to check the growth of party 
control by structural devices in the government. After the 
new system had gone into effect, they found themselves in the 
possession of the offices, and they naturally deprecated oppo- 
sition, which they attributed to "the factional spirit of party." 
Washington, in his farewell address, strongly admonished his 
countrymen against cherishing this partisan feeling. "There 
is an opinion," he said, "that parties in free countries are useful 
checks upon the administration of the government, and serve 
to keep alive the spirit of liberty. This, within certain Hmits, 
is probably true, and in governments of a monarchical class pa- 
triotism may look with indulgence, if not with favor, on the spirit 
of party. But in those of a popular character, in governments 
purely elective, it is a spirit not to be encouraged." 

At its very inauguration, the new federal government passed 
largely into the hands of that powerful and conservative group 
of men who had been most instrumental in framing or ratifying 
the Constitution. Washington, the president of the Philadelphia 
convention, became the first President of the United States; 
Ellsworth, W. S. Johnson, Langdon, Paterson, Robert Morris, 
Bassett, and Read were among the Senators in the new Congress; 
Madison, Oilman, Roger Sherman, Carroll, and Elbridge Gerry 
were in the House of Representatives. Hamilton, who had 
perhaps done more than any other man to bring about the 
establishment of the new system, was given the important post of 
Secretary of the Treasury; Randolph from Virginia was made 
Attorney-General; John Jay of New York, John Rutledge of 
South Carohna, William Gushing of Massachusetts, Robert H. 
Harrison of Maryland, James Wilson of Pennsylvania, and John 
Blair of Virginia, constituted the first Supreme Court. 

The new government was not in operation very long before 
its policies began to arouse antagonism. Under the direction 
of Hamilton, the administration took firm and decided measures 
toward estabhshing the credit of the United States on a sound 

Political Issues in the United States 105 

basis. They made provision for the payment of every penny of 
the national debt and the accrued interest at full value, and, in 
spite of great opposition, they assumed the Revolutionary obli- 
gations incurred by the states. To carry out this policy, they 
established a United States Bank, notwithstanding the constitu- 
tional objections urged against it by Jefferson and his friends.^ 
It was Hamilton's avowed policy to gain for the new government 
the support of the capitaUsts by linking their interests with its 

While providing revenues they frankly used the taxing power, 
at the very beginning, to protect American manufacturers against 
European competition. When the customs duties failed to bring 
in sufficient returns, it became necessary to impose some other 
form of taxes. By the act of 1791 Congress laid certain duties 
upon spirits, which stirred the distillers to rebellion; in 1794 a 
tax was laid on carriages, auction sales, and certain manufac- 
tures; and in 1798 a direct tax was laid on dwelling-houses and 
lots and on slaves between the ages of twelve and twenty. More- 
over, the expenditures of the new government rose rapidly, with 
some fluctuations, from $3,097,000 in 1791 to $7,309,000 in 1795 
and to $9,295,000 in 1799.^ 

These measures speedily aroused large and important classes 
to opposition. Agriculturists and persons with no commercial 
or financial interests and no government bonds were greatly 
excited over what appeared to them to be the transference of the 
government into the hands of powerful commercial and financial 
groups. They wanted the federal government to be as inexpen- 
sive as possible, and, therefore, they wished to restrain its opera- 
tion within the narrowest Hmits under a strict interpretation of 
the Constitution. They wanted to buy their manufactured 
commodities as cheaply as possible from the more advanced 
European states where they could find also a profitable market 
for their own raw products. Finally, the direct taxes and the 
excise on whiskey were sharply resented by the taxpayers, and, 
as every one knows, the liquor duty brought about a brief armed 
opposition known as the "Whiskey Rebellion." Thus the policy 
of the new administration called forth a sharp antagonism based 
on economic interests. 

' See Readings, pp. 62 and 237. 

2 Dewey, Financial History of the United States, p. iii. 

io6 American Government and Politics 

The foreign policy of the new government added to the irri- 
tation started by the domestic poHcy. In the very spring in 
which Washington was inaugurated with such an acclaim in WaK 
Street, the Estates General met at Versailles and began the first 
scene in the great drama of the French Revolution; in 1791 a 
new constitution was put into effect and the power of the king 
was practically destroyed; the next year the first French republic 
was estabUshed; and in 1793 Louis XVI was executed, and war 
was declared on England. These events were watched with 
deep interest by American citizens. In the beginning, the 
effort of the French people to estabhsh constitutional government 
was almost universally approved in the United States; but as 
the disorders of the revolution followed in rapid succession, con- 
servative Americans began to draw back in horror. 

The more radical elements of the population, however, fresh 
from their own triumph over George III, recalled with satis- 
faction the execution of Charles I by their own ancestors, and 
took advantage of the occasion to rejoice in the death of another 
ruler — the French monarch. The cHmax came in 1793, when 
France called on the United States to fulfil the terms of the 
treaty of 1778, in return for the assistance which had been given 
to the Revolutionists in their struggle with England. The 
radicals wanted to aid France, either openly or secretly, in her 
war on England, but Washington and his conservative sup- 
porters refused to be drawn into the European controversy. 
Thus the Americans were divided into contending groups. 
Burke's Reflections on the French Revolution and Paine's memo- 
rable reply. The Rights of Man, were read and debated with 
extraordinary interest and zeal. 

Thus a long chain of circumstances led to the formation of 
two parties: the Federalists, and the opposition known in 
the beginning as the Anti-FederaHsts, but later as the Repubh- 
cans or Democrats, the two terms being used synonymously 
and sometimes joined together. The Federalists were deeply 
angered by this antagonism to what they regarded as their pa- 
triotic efforts in behalf of the nation. Chief Justice Ellsworth, 
in a charge to a grand jury in Massachusetts, denounced "the 
French system mongers from the quintumvirate at Paris to the 
Vice-President [Jefferson], and the minority in Congress as the 
apostles of atheism, anarchy, bloodshed, and plunder." Kamil- 

Political Issues in the United States loj 

ton, Jay, and John Adams, realizing the seriousness of the oppo- 
sition, began to organize their followers for political warfare; 
and in the second presidential election a real campaign was 
waged. It is true, Washington was unanimously reelected, 
although not without criticism; but Adams, the Federahst can- 
didate for Vice-President, secured only 77 of the 132 electoral 
votes, the other 55 going to the Anti-Federahst candidates. In 
the third presidential election the party alignment was complete. 
Jefferson, the leader of the Anti-FederaUsts, was roundly de- 
nounced as an atheist and leveller, while Adams, the Federalist 
candidate, was characterized by his opponents as "the mon- 
archist." ^ So sharply drawn was the contest that Adams was 
chosen by the narrow plurality of only three electoral votes. 

During Adams' administration a series of events thoroughly 
discredited the Federalist party. Adams was for a time popular, 
principally on account of his early attitude toward France for 
the mistreatment of our representatives, but that popularity 
was short-lived. The Repubhcan newspapers heaped the most 
indiscriminate abuse upon the head of the President and the 
Federahsts generally, and as a result Congress pushed through 
the Alien and Sedition Acts — the first authorizing the President 
to expel certain aUens who might be deemed dangerous to the 
safety and peace of the country, and the second making the 
pubUcation of libels on Congress or the President a crime. 

Under the Sedition Act many of the Anti-FederaUsts were 
sharply punished for what would seem to us trivial criticisms 
of the administration. For example, Callender, a friend of 
Jefferson, was convicted for saying, among other things, "Mr. 
Adams has only completed the scene of ignominy which Mr. 
Washington began." The Sedition Act, especially, seemed to be 
in flat contradiction to those amendments to the federal Consti- 
tution securing freedom of press and speech against federal in- 
terference, and undoubtedly it was unconstitutional. These 
laws called forth the famous Kentucky and Virginia Resolutions, 
and convinced even those moderately inclined tow^ards democ- 
racy that Federalism meant an unwarranted extension of the 
powers of the federal government and perhaps the estabUsh- 

* For Jefferson's view of the difference between the Federalists and Anti" 
Federalists, see Readings, p. 92. 

lo8 American Government and Politics 

ment of party tyranny. At all events, these laws marked the 
death knell of the Federalist party. 

It is true that Adams, the Federalist candidate for the presi- 
dency in the election of 1800, made a respectable showing — poll- 
ing 65 electoral votes against the 73 received by Jefferson; but 
in the next election the Federalists were complete^ humiliated, 
their candidate, Pinckney, receiving only 14 out of the 176 
electoral votes. Even Massachusetts and New Hampshire, 
the strongholds of Federahsm, went heavily for Jefferson. The 
FederaUsts, however, made a feint at resistance until 181 6, in 
which year their candidate, Rufus King, received 34 out of 217 
electoral votes; but after that presidential election they disap- 
peared altogether as a national party. 

It would be a mistake to suppose, nevertheless, that the 
triumph of the Jeffersonians meant an entire repudiation of the 
principles of the FederaUsts. Indeed, quite the contrary hap- 
pened. In the purchase of the Louisiana territory the Anti- 
Federalists stre,tched the Constitution to such an extent that 
Hamilton's Bank Act seemed insignificant. Furthermore, 
in 1816, the second United States Bank was established, and 
when it came to the settlement of the revenue system after the 
war of 181 2, the leaders of the Democratic-RepubHcan party 
finally adopted a sweeping protective tariff on the broadest 
possible nationalist basis. Thus it may be said that, while the 
Anti-Federalists ruined the opposing party, they were compelled 
to adopt its more fundamental principles.^ 

The Rise of Western Democracy 

During the period from 1816 to 1828 American politics took 
on an aspect of personal and factional dispute. Federalist 
organizations had disappeared, and the Republican party seemed 
to embrace in its ranks the entire electorate. Political feeling, 
however, ran high, but the leaders were unable to group the 
electors into two great contending parties. They searched about 
for principles upon which to reorganize the political fragments, 
but they were unable to agree upon any set of doctrines that 
would produce the desired effect.^ 

Meanwhile there were going on certain fundamental economic 

Burgess, The Middle Period, pp. i ff. ^ Shepard, Van Buren, p. 92. 

Political Issues in the United States log 

changes, the significance of which was not appreciated by con- 
temporary observers, but which were destined to give an entirely 
new direction to American political life. These great changes 
were connected with the conquest and settlement of the Great 
Northwest, and the transformation of slavery from a domestic 
to a capitahstic institution by the extension of cotton culture 
into the Southwest. The balance of power was being shifted 
from the seaboard states to the West, and within the eastern 
states industries were rising which were destined to overthrow 
the landed aristocracy. Kentucky was admitted to the Union 
in 1792, Tennessee in 1796, Ohio in 1802, Louisiana in 181 2, 
Indiana in 1816, IlUnois in 1818, Mississippi in 181 7, Alabama 
in 1819 and Missouri in 182 1. 

In these western states there existed a type of economic 
society such as had never before appeared in the history of the 
world and never can exist again, at least on a large scale. They 
were settled by hardy and restless pioneers who crossed the 
mountains, cut down the forests, built their log cabins, and 
founded homes. In the possession of this world's goods they 
were, for the most part, substantially equal; it was easy to ac- 
quire land, and any thrifty and industrious pioneer with his family 
could readily secure the comforts of a rude but healthful and 
independent life. In the log cabins of these pioneers were 
developed political ideas fundamentally different from those 
entertained by the rich merchants of the East or the aristocratic 
landholders in their manors along the Hudson. 

Here in the West there existed a substantial economic equality, 
and it seemed at last that the levelling theories of Jefferson were 
being realized on a large scale. Owing to the simple life which 
they Uved, government was to them a simple thing; any one 
could hold the office of sheriff, county clerk, road supervisor, 
state auditor, or governor. As the duties of the offices were 
sHght and easily understood, and the emoluments connected 
with them attractive, especially to men who earned their bread 
with the axe and plough, the western settlers seized with eager- 
ness upon the doctrine of short terms and rotation in office.^ 

These western communities, moreover, needed capital to 
develop their latent resources, to complete highways and con- 
See above, p. 94. 

no American Government and Politics 

struct canals, and to rear industries; and for this capital they 
were compelled to look principally to the accumulations of the 
East. This necessity made them dependent largely upon east- 
ern financiers, and they determined if possible to rid themselves 
of this dependence by the establishment of state banks, issuing 
paper money in large quantities with but slight basis for redemp- 
tion. It is easy to ridicule western theories as to fiat money, 
but when one appreciates the grinding necessities of the frontier 
life he can understand, even if he does not approve, its financial 

The industrial revolution in England and the invention of the 
cotton gin created an enormous demand for raw cotton, which 
brought about a revolution in the agricultural system of the 
South. In the place of the old plantations, where masters and 
slaves dwelled side by side from generation to generation, thus 
mitigating the bondage of slavery by a somewhat patriarchal 
relation, there came a new type of plantation, on which slaves 
bred in the older states, or snatched away from Africa, in spite 
of the law, were herded together and worked with less regard 
for human considerations than in older states. With the demand 
for cotton came the demand for more territory. The bonds of 
the old South were burst asunder, and an irresistible pressure 
for the extension of the soil available for cotton culture set in, 
and swept everything before it. ' The slave population increased 
rapidly; the lust for money seized the dominant class as it seized 
the mill-owners in England. Thus slavery, once condemned or 
merely condoned, became intrenched, and it thereupon inevi- 
tably drew to its defence the best intellectual strength of the 

East, as well as West and South, a revolution was going on. 
The industries of New England and the middle states, which had 
been begun in colonial times and had been fostered under the 
protective tariff after Independence and especially after the War 
of 1 812, began to take on a new Ufe. Mechanics from England 
came in large numbers, bringing with them the designs of ma- 
chines which had so recently wrought the revolution in English 
industry. In 1807, Fulton inaugurated steam navigation on 
the Hudson; and far and wide hamlets were transformed into 
manufacturing centres through the magic of steam. The tide 
of immigration from Europe steadily increased, and most immi- 

Political Issues in the United States ill 

grants found their homes in the growing cities of the East. In 
the twenty years from 1800 to 1820 the population of Boston 
almost doubled, while that of New York rose from 60,000 in 1800 
to 123,700 in 1820. Owing to the property quaUfications placed 
on the suffrage by the constitutions of the eastern states, most 
of these immigrants and the native workers in the factories were 
excluded from the right to vote; but before the first quarter of 
the nineteenth century had elapsed, the restrictions on the suf- 
frage began to be relaxed. 

Here were the changed social conditions which made the United 
States of 1825 as different from the United States of Washing- 
ton's day as the England of Cobden and Bright was different 
from the England of Bohngbroke and Walpole. The landed, 
financial, and industrial interests of New England and the middle 
states had now aligned against them the diverse interests of the 
laboring classes, the frontiersmen of the West, and the slave- 
owning cotton producers. In 1828, there was found a standard- 
bearer who, curiously enough, seemed to represent all of these 
diverse elements as against the older ruling aristocracy of the 
East. This standard-bearer was Andrew Jackson, a resident of 
Tennessee, a bold frontiersman, immensely popular on account 
of his triumph over the English at New Orleans and his unquali- 
fied championship of what he called ''the rights of the people." 
Triumphantly elected, and feeling behind him the irresistible 
pressure of popular support, he began an executive poUcy which 
seemed for a time to transfer the seat of government from the 
capitol to the White House. He adopted the most novel notions 
on the rights of the President under the Constitution; ^ he ousted 
the old office-holding aristocracy without regard to appearances 
and circumstances, and placed his friends and supporters in office; 
he destroyed the United States Bank, the stronghold of power- 
ful financial interests, in spite of the opposition raised up against 
him in Congress; and when nulUfication appeared in South 
Carolina he issued a ringing proclamation which showed that he 
was a stanch defender of nationalism as against states' rights. 

For a time it looked as if Jackson was destined to sweep every- 
thing before him, and his second election seemed to confirm him 
in his opinion that he was opposed only by maUgnant minority 

^ See Readings, p. 190. 

112 American Government and Politics 

factions. Nevertheless, the elements of opposition to Jackson's 
policy steadily gained in strength. The members of the old 
ruling aristocracy dreaded the dominance of a man whom they 
regarded as an ignorant and violent military chieftain backed 
by the vehement passions of the populace. The banking and 
financial interests of the East had every reason to fear that a 
calamity would inevitably follow the destruction of the United 
States Bank and the flooding of the country with paper money 
through the state banks; many southern Democrats, who sym- 
pathized with the nullification policy of South Carolina, turned 
against Jackson for his determined stand against the action of 
that state. Furthermore, there was a well-organized group of 
eastern manufacturers who wanted to extend the system of pro- 
tective tariff beyond the point Jackson was wilUng to go. Nat- 
urally Jackson raised up against himself many disappointed 
office-seekers, as well as the old office-holders whom he turned out. 
There was also in the West a growing number who wanted to 
secure larger federal grants for internal improvements than 
he was willing to concede.^ 

These elements of opposition were brought together in the 
National RepubUcan or Whig party, which numbered among 
its famous leaders J. Q. Adams, Webster, and Clay. It would 
l>e wrong, however, to attribute the rise of this new party wholly 
to Jackson's personal policy. Even before his advent to power, 
the poUtical factions into which the nation seemed divided were 
beginning to segregate into two fairly distinct groups — one 
under the leadership of Adams and Clay and the other composed 
of the Jackson-Calhoun-Crawford groups.^ The first of these 
two aggregations was inchned toward a broadly nationaUst pol- 
icy with regard to internal improvements and the protective 
tariff, and the second took the more particularist or states' rights 
view which would restrict the activities of the federal govern- 
ment to the narrowest limits. 

Jackson's high-handed policy in destroying the Bank, and his 
fondness for "strong executive government," simply helped to 
consolidate more effectively certain of the nationalist elements 
into the National Republican party, which soon received the 

* For Horace Greeley's description of the Whig party, see Readings, p. 94, 
' Burgess, Middle Period, p. 146. 

Political Issues in the United States 113 

name "Whig" — a title, taken from English poUtics, which sig- 
nified "opposition to high executive prerogative and approval 
of congressional control over the President." As the contest 
with Jackson widened, the term Whig gradually supplanted the 
official title National Republican. 

This party lasted nominally from 1828 to 1852. It put for- 
ward Clay as its candidate in 1832, only to meet certain defeat; 
and it enjoyed only two brief triumphs. In 1840 it elected 
William Henry Harrison, a popular hero, without having made 
any declaration of principles at all; and after the second defeat 
of its candidate. Clay, in 1844, it again had recourse, at the 
succeeding election, to a miUtary hero, General Taylor, and was 
victorious. The Whigs, finding it impossible to agree among 
themselves on the impending question of slavery, tried to evade 
the real issue by nominating, in 1852, another military man, 
General Scott; but his overwhelming defeat was an evidence 
that the doom of the party had come. 

The Rise and Growth of the Republican Party 

Great events were forcing a new alignment of parties. Though 
the abolitionists were few in number, they carried on such a 
vigorous agitation that the slavery question was forced to the 
front, in spite of the best efforts of the politicians to obscure it. 
The abolitionists, however, did not constitute a political party 
of any weight. The opponents of slavery organized a conven- 
tion at Buffalo in 1843, ^^d nominated James G. Birney as can- 
didate for President on "the principles of 1776," but Birney 
polled only about 62,000 out of some 2,600,000 votes in the elec- 
tion of the following year. Four years later another anti- 
slavery convention, held at Buffalo, nominated Van Buren on a 
platform of opposition to slavery in the territories; but this 
party, known as the "Free Soil" party, only polled about 290,000 
votes. In the campaign of 1852, the Free Soil party declared: 
"No more slave states, no slave territory, no nationalized sla- 
very, and no national legislation for the extradition of slaves"; 
but its candidate. Hale of New Hampshire, received only 156,000 

Events, as well as agitation, however, were making slavery 
the issue. The war with Mexico had added to the territory of 

114 American Government and Politics 

the United States a large domain comprising California, Utahi 
Nevada, Arizona, and portions of Colorado and New Mexico; 
and the organization of this territory became at once the burning 
issue. A heated debate in Congress culminated in the compro- 
mise of 1850: Utah and New Mexico were organized as terri- 
tories with or without slavery as their future constitutions might 
prescribe, and the slave trade in the District of Columbia was 
aboUshed, the South receiving its full value in an act for the more 
efficient rendition of fugitive slaves. The enforcement of this 
last provision by federal officers in northern states brought sla- 
very home to the people of northern cities and hamlets, and made 
it odious to thousands who had formerly been indifferent to it. 
The climax came, however, with the Kansas-Nebraska act 
(1854) expressly repealing that provision of the Missouri Com- 
promise which excluded slavery from the northern portion of the 
Louisiana purchase, and reopening a sore controversy which 
opponents of slavery in the territories had thought forever closed. 
On the very morning after the House of Representatives took 
up the Kansas-Nebraska bill, several members of that body held 
a meeting on the call of Israel Washburn, and agreed that the 
advance of the slave power could be checked only by the for- 
mation of a new party, to be known as the Repubhcan party. 
This, however, cannot be called the origin of that party, for 
before the repeal of the Missouri Compromise a meeting had 
been held at Ripon, Wisconsin, and a resolution had been adopted 
to the effect that a new organization, to be called Repubhcan, 
should be formed on the question of slavery extension, if the bill 
passed. Indeed, all throughout the North and East there were 
signs of the dissolution of the old parties and a general reorgani- 
zation. Many newspapers, with the New York Tribune under 
Horace Greeley in the lead, were advocating a new party align- 
ment, and in the spring and summer of 1854 meetings were held 
in Illinois, Maine, Vermont, Michigan, Iowa, Ohio, Indiana, 
Massachusetts, and New York at which the Kansas-Nebraska 
bill was roundly denounced. At length, on July 6, 1854, a state 
convention was held at Jackson, Michigan, and a full state ticket 
of Repubhcan candidates was nominated. The congressional 
elections of 1854 revealed the strength of this movement,^ for 

1 J. F. Rhodes, History of the United States, Vol. II, pp. 58-67. 

Political Issues in the United States 115 

in the new Congress there were 117 Representatives and 11 
Senators in the Anti-Nebraska party. 

This new RepubUcan party held its first national convention 
at Philadelphia in June, 1856, on a call issued by a preUminary 
meeting assembled at Pittsburg in the preceding February. At 
this convention Delaware, Maryland, Virginia, and Kentucky 
were represented, as well as all the northern states and some terri- 
tories. Fremont was nominated as the candidate on a platform 
which declared that it was the right and duty of Congress to 
prohibit in the territories those "relics of barbarism, polygamy 
and slavery." In the campaign which followed, Fremont polled 
1,341,264 votes against 1,838,169 polled by Buchanan, and 
received in all 114 electoral votes as against 182 for his two 
opponents, Buchanan and Fillmore. 

By this time the Democratic party had taken a pretty clear 
stand on the question of slavery.^ It asserted that Congress had 
no control over the domestic institutions of the several states, 
and deprecated the agitation of the abolitionists; it announced 
its adherence to the compromise measure of 1850, and declared 
that it would resist all attempts at renewing the agitation of the 
slavery question in Congress or out of it. In the final contest of 
i860, however, the Democrats split into two factions, one headed 
by Stephen A. Douglas, who hoped to solve the slavery 
question by allowing the people of each territory, on their ad- 
mission to the Union as a state, to decide for themselves; and 
the other by John C. Breckinridge, who stood on a platform ad- 
vocating the extreme southern view that Congress had no power 
to prevent slavery in the territories.^ 

During the four years which followed its first national conven- 
tion, the Republican party steadily gained in strength. It found 
its most effective support among the northern farmers, who be- 
lieved that slavery should be excluded from the great western 
territories, in order that homesteads might be erected there by 
free men; and, indeed, it has been called " The Homestead Party '' 

* For the Democratic platform of 1852, see Readings, p. 95. 

^ After the split of the Democratic party in i860, a small group taking the 
name of the Constitutional Union party held a convention in Baltimore and 
nominated John Bell, of Tennessee, on a platform that begged the whole 
slavery question. Bell received 39 electoral votes. 

Ii6 American Government and Politics 

by an eminent publicist.^ To the homestead element were added 
the manufacturing interests of the East, which were clamoring for 
more protection against European competition.^ The alliance of 
these two great forces made a formidable party — not an aboli- 
tionist party, but a homestead and protective tariff party, stand- 
ing for the exclusion of slavery from the territories. This party 
held its second convention at Chicago in i860, and nominated 
Abraham Lincoln of Illinois and Hannibal Hamlin of Maine. 
Owing to the dissensions in the ranks of the Democrats, it was 
able to carry the election by a popular vote of 1,866,452 against 
a total vote of 2,815,617 for the three opponents. Mr. Lincoln 
received 180 electoral votes, Breckinridge 72, Douglas 12, and 
Bell 39. 

As the southern leaders had warned the North, the election of 
Mr. Lincoln precipitated the long-impending crisis. When the 
Civil War broke out many northern Democrats came to the 
support of the administration, but throughout the armed conflict 
a large number of them adopted an attitude of hostiHty toward 
the policy of the Republican administration and openly sympa- 
thized with the Confederate states. 

The Republicans were therefore compelled to rally to their 
support everyone who believed in a strong union policy, regardless 
of his previous political affiliations, and thus they found within 
their ranks disgruntled Whigs, Free Sellers, and unionist Demo- 
crats whose sole bond of connection was the common opposition to 
Secession. Under these circumstances, the Republican party 
was at the beginning a somewhat heterogeneous group. In 1864 
it made its appeal to all who believed in " the unconditional main- 
tenance of the Union^ the supremacy of the Constitution, and 
the complete suppression of the existing rebelhon with the cause 
thereof by vigorous war and all apt and efficient means." During 
that campaign, it assumed the name of "Unionist," and notwith- 
standing its appeal to many different elements, Lincoln only 
polled some 400,000 votes more than the Democratic candidate 
McClellan, not counting the soldiers' votes, which were of course 
largely for the Unionist candidate.^ Even in the campaign of 

^ See article by Professor J. R. Commons, Political Science Quarterly 
September, 1909, on Horace Greeley and the Republican party. 

^ For the Republican platform of i860, see Readings, p. 97. 

^ The actual figures are: Lincoln 2,213,655, McClellan 1,802,237, without 
the soldiers' vote. 

Political Issues in the United States 1 17 

1868, the party used the title "Union-Republican," and it was 
not until the next presidential election, in 1872, that the original 
title, "Republican," was definitely assumed.^ 

The Republican party emerged from the period of Reconstruc- 
tion, during which the southern states were restored to their 
former position in the Union, as a reorganized party fortified by 
the devotion of an intense patriotism,^ and by the economic sup- 
port of the manufacturing interests which had flourished under 
the war tariffs and of the .capitalists anxious to swing forward 
with the development of railways and new enterprises.^ In 
possession of all of the important offices, controlling the federal 
legislature, executive, and judiciary, with the Democratic party 
prostrate and identified with treason, the Republicans had a con- 
trol over the destinies of the country only equalled by that of the 
Democratic party during the period preceding the Civil War. 

Wherever there is such tremendous power, vigilant self-seekers 
of every kind are sure to congregate, and during the years which 
followed the war, the ranks of the Republican party were per- 
meated with mercenaries of every type — the spoilsmen hunt- 
ing offices, railway promoters seeking land grants and financial 
aid from the government, manufacturers demanding more dis- 
crimination in the tariff legislation, and the great army of hangers- 
on who attached themselves to these leaders. The integrity of 
the party was further injured by the "carpet-baggers" in the 
South, who, in the name of the federal government and the Re- 
publican party, plundered the southern states and heaped upon 
them an enormous burden of debt. 

Thus, those who plundered under the guise of patriotism helped 
to discredit sadly the great party which made the proud boast 
that it had preserved the Union and abolished slavery. Under 
these circumstances the Democratic party began to be rehabili- 
tated. It had had a long and triumphant history prior to the 

^ The reconstruction of the Republican party during the Civil War is the 
subject of a very convincing paper read by Professor Dunning before the 
American Historical Association in 1909, as yet unpublished. I am indebted 
to Professor Dunning for the privilege of reading it in manuscript. 

^ See the patriotic appeal in the Republican platform of 1876, Readings, 

p. lOI. 

^ For a first-hand study of the economic aspects of the period, see Dunning, 
Reconstruction, Political and Economic (American Nation Series). 

Ii8 American Government and Politics 

Civil War; it had great traditions, and numbered on its roll some 
of the most distinguished men in the American history; and, 
furthermore, it must be remembered that in the election of i860, 
when it went down in defeat, it had the support, if we combine 
both factions, of an overwhelming majority of the people of the 
United States. It is not surprising, therefore, that this party 
began to close up its shattered ranks in opposition to Republican 
rule. In the South the whites began to recover their old pre- 
dominance; in the North and West the farmers began to protest 
against the high protective tariffs; here and there throughout 
the Union discontent with the railway and corporation policy of 
the Republican party began to appear; and the spoils system 
stirred to action a small but vigorous minority of ''civil service 

As a result, the Democratic party, in 1884, was able to bring 
together an effective opposition and Mr. Cleveland was narrowly 
elected, principally by the support of the "mugwumps," who 
bolted the Repubhcans after the nomination of Mr. Blaine at the 
Chicago convention. This Democratic triumph was short-lived, 
however, for four years later, when Mr. Cleveland forced the 
tariff issue by his celebrated message of 1887, the Republicans 
were able to elect Benjamin Harrison by a slight majority. Tak- 
ing advantage of their victory, the Repubhcans forced through 
the McKinley tariff bill, which was regarded by many members 
of the party as entirely too drastic, and in the succeeding election 
of 1892 Mr. Cleveland was again able to lead his party to victory. 

The Economic Revolution since the Civil War 

At this time, however, American politics may be said to have 
entered upon a new phase. Since the Civil War there has been 
an economic transformation more revolutionary in character than 
that which formed the basis of the political upheaval of Andrew 
Jackson's time. Small business concerns have grown to gigantic 
corporations capitahzed at untold millions and controlling na- 
tion-wide industries. There have been built up colossal fortunes 
from which the total national debt of Washington's day could be 
paid many times over. The western lands, once the hope of the 
poor man of the East, have been practically all taken up. The 

^ For the spirit of the Democratic opposition, see Readings, p. 103. 

Political Issues in the United States 119 

vast timber and mineral resources of the nation have passed 
largely into private hands. Cities have grown by leaps and 
bounds, and millions of poor are crowded in our industrial centres. 
The village workshop, the old-fashioned woollen mill by the 
brookside, the handloom, the short railway Hne, the small in- 
dividualist factory, have been conquered by mighty captains of 
industry, whose bold enterprises and remarkable genius for world- 
wide organizations are the wonder of our age. With this indus- 
trial revolution has come a working-class. It may be demon- 
strable that there are many gradations of fortune in modern life 
and that members of the working-class are constantly passing to 
other ranks, but this should not be allowed to obscure the fact 
that a permanent working-class, dependent almost entirely upon 
the sale of labor power, is the inevitable concomitant of the in- 
dustrial revolution. In connection with our commercial enter- 
prises the insular dependencies have been acquired, and tho fed- 
eral government drawn into the mesh of world politics. Surely 
the United States of our time is further away from Lincoln's day 
than his America was from the America of Washington. 

The Minor Parties 

The new conditions of American life have created new groups 
of interests, and have, therefore, forced steadily to the front new 
types of political doctrines. These groups of doctrines, so far as 
they propose radical changes, usually find their first exponents in 
minor parties; and as the respective issues come within the range 
of practical politics, they are presented to the country in the na- 
tional campaigns of the two great parties. Accordingly it seems 
w^orth while to review briefly the minor parties since the Civil 
War, for, in spite of their apparent insignificance, they are by no 
means negligible factors in the American governing process. 
These parties fall readily into three groups: the temperance, the 
labor, and the agrarian parties. 

I. About the middle of the nineteenth century there arose a 
temperance movement which carried several states for absolute 
prohibition. A reaction, however, speedily set in, and the tem- 
perance question was overshadowed by the great slavery issue. 
It was not until after the Civil War that the Prohibitionists en- 
tered national politics. They held their first national conven- 

120 American Government and Politics 

tion at Columbus, Ohio, on February 22, 1872, and nominated 
Mr. Black of Pennsylvania as their presidential candidate. In 
their platform they declared that the prohibition of the liquor 
traffic was the leading issue, but they also proposed certain cur- 
rency reforms and the regulation of transportation and monop- 
olies.^ Indeed, from the very inception of the party, the Pro- 
hibitionists have been unable to ignore the other questions of the 
day; and from time to time they have declared in favor of various 
economic reforms as well as the prohibition of the liquor traffic. 
Nevertheless, they have been unable to muster any considerable 
strength, for they polled only about 254,000 votes in 1908. 

2. Almost immediately after the Civil War labor entered 
American politics as a separate and independent element. In 
1872 a party known as the "Labor Reformers" held a national 
convention in Columbus, Ohio, which was attended by represen- 
tatives from seventeen different states. The party at that con- 
vention declared in favor of restricting the sale of public lands to 
bona fide homeseekers, Chinese exclusion, an eight-hour day in 
government employments, civil service reform, one term for each 
President, regulation of railway and telegraph rates, and the 
subjection of the military to civil authority.^ For a time, the 
labor element seems to have been absorbed into the agrarian 
groups described below; but in 1888 a ''Union Labor" party 
met in national convention at Cincinnati, and drafted a plat- 
form embodying the principal doctrines of the Labor Reformers 
and demanding, in addition, popular election of United States 

The labor forces appeared in an avowed socialist organization 
in the campaign of 1892, when the "Socialist Labor" party held 
its first convention in New York. This party has made its appeal 
almost exclusively to the working-class. It declared in its plat- 
form of 1908 that "man cannot exercise his right of life, liberty, 
and the pursuit of happiness without the ownership of the land 
and the tools with which to work. Deprived of these, his life, 
liberty, and fate fall into the hands of the class that owns these 
essentials for work and production." The radical appeal of 

^ Their candidate in that year polled 5608 votes. 

^ The candidate of the Labor Reformers in that year polled about 29,000 
out of over 6,000,000 votes. 

' The candidate of the Union Labor Party in 1888 polled 146,935 votes. 

Political Issues in the United States 121 

the Socialist Laborites to the working-class to unite against the 
property-owning class has met, however, with no considerable 
response; its candidate in 1896 polled only 36,373 votes, and 
in 1908 the number fell to about 15,000. 

The extreme views of the Socialist Labor party led to the 
organization of another radical group taking the name of ''So- 
ciaHst" party, which held its first convention in 1900, and at the 
1908 presidential election polled 448,453 votes — more than the 
combined vote of the other minor parties. Four years later its 
vote rose to almost a million, only to fall materially in the elec- 
tion of 1916. This party also makes its appeal especially to 
the working-class, but it does not demand the complete abolition 
of all private property in the means of production. From time 
to time it has declared in favor of graduated inheritance and 
income taxes ; universal suffrage ; the initiative and referendum ; 
proportional representation and the right of recall; popular 
election of judges ; employment of unemployed working men on 
large government undertakings; collective ownership of all in- 
dustries in which competition has ceased to exist ; extension of 
the public domain to include mineral resources, forests, and 
water power ; compulsory government insurance for the working- 
class ; and an extended labor code designed to raise the standard 
of life for the working people in every branch of industry. The 
opposition of the party to the war against Germany led to the 
withdrawal of many prominent leaders, and the conservatism of 
the party on other matters brought about a secession of radicals 
and communists in 1919. 

3. There has been in American politics since the period of 
the Revolution a distinctly agrarian element, but it did not appear 
as a separate political party until after the Civil War. With the 
rapid decline in the prices of agricultural products which accom- 
panied the general collapse of the inflated war prices, the farmers 
began to grow dissatisfied with their lot, and at length they 
came to believe that the railways, the corporations, and the 
financial policy of the federal government were principally re- 
sponsible for the evils under which they labored. Working 
through the legislatures, especially in Illinois, Iowa, Wisconsin, 
and other western states, they attempted to secure relief by 
passing a number of laws regulating railway rates and ware- 

122 American Government and Politics 

The discontented farmers entered politics in 1876 as the Inde- 
pendent National or "Greenback"^ party, and waged warfare 
especially on the RepubHcans, charging them with being re- 
sponsible for the dechne in prices because they had placed the 
monetary system on a gold basis and contracted the currency. In 
spite of the small vote polled by their candidate, Peter Cooper, of 
New York, the Greenbackers put forward a candidate in the 
next campaign, and even made a third attempt in 1884. In view 
of later developments, their platform of 1880 is interesting, for it 
included, among other things, free coinage of silver, advanced 
labor legislation, the establishment of a national bureau of labor, 
Chinese exclusion, a graduated income tax, and the regulation of 
interstate commerce. 

Although it gained in votes at first, — from 81,737 in 1876 
to 308,578 in 1880, — the Greenback party went to pieces com- 
pletely after the campaign of 1884. Within a short time, 
however, the discontented agrarians formed a new association, 
known as the Farmers' Alliance, which, although it did not offi- 
cially enter politics, was the precursor of the Populist party. 
This party drew together, in 1892, both agrarian and labor ele- 
ments in a national convention, which met at Omaha and put 
forth a radical program, demanding government ownership of 
railways, telegraph and telephones, a graduated income tax, 
postal savings banks, and the free coinage of silver and gold at 
the legal ratio of 16 to i. 

On this radical platform the Populists went into the cam- 
paign of 1892, with James B. Weaver as presidential candidate, 
and polled more than a million votes, principally in the western 
and southern states, carrying Colorado, Idaho, Kansas, Nevada, 
and securing one electoral vote in North Dakota and another in 
Oregon. This unprecedented achievement by a minority party 
was partially due to fusion with the Democrats in some of the 
states, but beyond question the Populists had attained a numer- 
ical strength which made them a force to be reckoned with in 
American politics.^ 

^ So-called on account of its advocacy of paper money. 

2 The Populist party, after its capture of the Democratic party in 1896, 
continued to maintain a separate organization, but it has steadily declined, 
its candidate in 1908 polling only about 30,000 votes. 

Political Issues in the United States 123 

The New Era in American Politics 

This became apparent in the great free silver contest of 1896, 
when the Democratic party was captured by the Populist wing, 
and waged a campaign on a platform based largely upon Populist 
principles. In that year the sectional issues growing out of the 
Civil War and Reconstruction were thrust into the background 
by newer questions connected with finance, trusts, and labor 
organizations, that had been brought forward by the industrial 
revolution. The free coinage of silver, which Mr. Bryan made 
the leading issue, appealed particularly to the farmers with 
heavily mortgaged property and to debtors generally; but 
back of that issue was a deep-seated antagonism of small prop- 
erty owners, merchants, petty manufacturers, and a large 
portion of organized labor to the great financiers and the cor- 
poration interests.^ Mr. Bryan marshalled in his ranks radicals 
of every school who were opposed to what they called govern- 
ment by a ''plutocracy." 

This shifting of political interest to the newer issues of capital, 
labor, and monopolies worked more or less disorganization in 
both of the old parties. Each of them developed a conservative 
and a radical wing. For a time, the Spanish War turned popular 
interest into a new field, but the diversion was only temporary, 
and within a short time the discontent of the West, which made 
itself felt particularly in the Democratic party in 1896, began to 
make inroads upon the apparent solidarity of Republican ranks. 
The accession of Mr. Roosevelt to the presidency on the death 
of Mr. McKinley in 190 1 hastened the division in that party, for 
he aroused the distrust of the conservative groups and appealed 
to the sentiments that had fostered populism. In his messages 
and speeches he brought railway, trust, labor, and other social 
questions prominently into politics. He advocated income and 
inheritance taxes partly with a view to helping equalize fortunes ; 
he recommended a stricter federal control of corporations ; he 
attacked "malefactors of great wealth" with a vehemence never 
before exhibited by a President ; and he advocated a few meas- 
ures for the benefit of the working classes. He found a very 
large group of supporters in his own party and they insisted on 

1 Readings, p. 105. 

124 American Government and Politics 

his becoming a candidate for renomination in 191 2 after it was 
apparent that Mr. Taft's sympathies were with the conservative 
elements. Failing to secure his nomination at the Republican 
convention in Chicago, Mr. Roosevelt's supporters ''bolted," 
and formed a new party which took the name of Progressive. 

In the campaign of 191 2 the new social and economic questions 
growing out of the industrial revolution received a more extended 
consideration than ever before in the history of our parties. 
The important question of the trusts and monopolies received 
careful attention. The Repubhcans advocated a clearer defi- 
nition of those acts of corporations which unduly restrained 
trade, opposed the restriction of business opportunities by com- 
binations and monopolies, and favored a more definite statement 
of the rights of larger business undertakings so that ''business 
success honorably achieved may not be converted into a crime." 
The Democrats demanded a more vigorous prosecution of the 
trusts with a view to breaking them up into smaller units in order 
to make competition easier for business men of a minor order. 
The Progressive party took the position that the great corpora- 
tion was "an essential part of modern business," and to some 
extent both "inevitable and necessary"; and advocated the 
regulation of such great concerns by a national industrial com- 
mission. The Socialist party agreed with the Progressives in 
the belief that trusts were the inevitable outcome of industrial 
evolution, but they contended that regulation was futile and that 
public ownership could alone relieve the country from the domi- 
nation of these gigantic accumulations of capital. 

The most extensive programmes of labor reforms were, of 
course, put forward by the Progressive and Socialist parties, which 
favored such schemes as minimum or living wages, prohibition 
of child labor, special laws safeguarding the health and safety 
of laborers, and workmen's compensation. The former party 
looked upon these as reforms designed to save the present 
system, and the latter as mere concessions to be secured as pre- 
liminaries to the conquest of the government by the working 
class. The Republicans promised "in all possible ways to satisfy 
the just demand of the people for the study and solution of the 
complex and constantly changing problems of social welfare." 
The Democrats promised to exempt trade-unions from the pro- 
visions of the law which made them Hable to penalties as com- 

Political Issues in the United States 125 

binations in restraint of trade, agreed to afford jury trial in 
injunction cases, and pledged the party to the establishment of 
a Department of Labor. 

The campaign of 1916, carried on while the World War in 
Europe was raging, naturally took on the color of the times. 
The social question, which had emerged rather sharply four years 
before fell somewhat into the background. The protection of 
American rights, national preparedness, the disturbances in 
Mexico, the national marine, occupied the centre of interest. 
The Progressives held their convention in Chicago at the same 
time as the Republican convention and nominated Mr. Roosevelt, 
only to have him decline. The Republicans selected as their 
standard-bearer. Justice Charles E. Hughes, former governor of 
New York, and after the refusal of Mr. Roosevelt to accept the 
nomination, the Progressive national committee endorsed the 
Republican candidate. The Republicans favored maintaining 
"a. straight and honest neutrality between the belligerents in 
Europe" and the protection of American rights. They roundly 
condemned the Democratic administration for its Mexican, Eu- 
ropean, Philippine, and legislative poHcies. The Democrats 
re-nominated President Wilson and based their appeal mainly 
on the record of achievement. They commended the "splendid 
diplomatic victories of our great President, who has preserved 
the vital interests of our government and its citizens and kept 
us out of war." The question of woman suffrage was warmly 
debated at both the RepubHcan and Democratic conventions, 
and both refused to endorse the federal suffrage amendment. 
The Progressives declared that "a nation to survive must stand 
for the principles of social justice. We have no right to expect 
continued loyalty from an oppressed class." The SociaHsts 
condemned the war in Europe as "one of the natural fruits of 
the capitalist system of production." Mr. Wilson's victory at 
the polls reckoned in terms of popular vote was decided.^ 

1 Stanwood, History of the Presidency, iSgy-igid. See Readings, p. 107. 



The process by which poHtical parties have built" up their 
organizations from the primary to the national committee and 
extended their sway throughout the United States and its depen- 
dencies forms one of the most interesting studies in all the history 
of political institutions. Originating in a variety of voluntary 
practices, party machinery became more definite and more com- 
plete from generation to generation, until at length it became a 
veritable government without and within the legal government 
— with its own army of officials, its congresses or conventions, 
its rules and customs, and its methods for maintaining discipline 
in the ranks. Its enormous power was early recognized; but 
for a long time it was regarded as a purely private association 
in spite of its eminently public character; and accordingly it 
escaped all governmental control. It was not until the abuses 
of the parties became so notorious as to threaten the integrity 
of the commonwealth, that the policy of regulating them by 
statute was adopted. This policy, once accepted, has been 
steadily advanced, however, until in many states the political 
party has been frankly recognized by law and openly made a 
piece of the regular mechanism of government.^ 

Party machinery is not a fortuitous development, but is 
the direct result of the requirements of practical politics. The 
necessity of nominating candidates for offices leads inevitably 
to the development of caucuses and conventions. In the con- 
duct of campaigns, leadership and discipline are indispensable, 
and hence we have concentration of power in the hands of party 
directors, and the organization of an army of party workers. 
When a party is in power, it fills offices, makes and enforces laws, 
grants franchises, and in a multitude of ways regulates private 
interests; and out of these functions come emoluments, cam- 

^ See Readings, p. 131. 

The Development of Party Machinery 127 

paign funds, and enormous power over the lives of men. It is 
small wonder, therefore, where there are so many offices to be 
filled and so many advantages to be derived that our political 
parties have reached a high degree of organization and control. 

Early Nominating Methods 

The beginnings of this great system may be traced back into 
the colonial period, for it appears that even the Boston town 
meeting, so celebrated for its democratic character, had fallen into 
the hands of the caucus long before the Declaration of Indepen- 
dence.^ After the organization of the independent governments, 
there was naturally an increase in the number of elective offices,^ 
and, while in many instances candidates were brought before 
the pubhc through personal negotiations or by the advocacy of 
a few friends, it was not long before more or less regular assem- 
blies for the purpose of making nominations appeared everywhere 
throughout the states. For local and county nominations a 
general mass meeting composed of interested parties seems to 
have been the early method employed, but the controversies 
which arose in these assemblies led to a demand for regularity 
in composition, so that nominating conventions of official 
delegates soon began to appear alongside the mass meetings. 
For example, candidates for Congress and the state legislature 
in the county of Philadelphia were nominated in 1794 "at a 
large and respectable meeting of the freemen," but five years later, 
in 1799, we hear of a county convention in that city made up 
of three delegates from each ward. By the close of the eighteenth 
century, county conventions, composed of delegates represent- 
ing lower units of government, seem to have been fairly well 
developed in Pennsylvania.^ About the same time congressional 
and county conventions seem to have been regularly established 
in Massachusetts and in all other states where party contests 
had reached any degree of sharpness. 

The state convention as a regular institution was a develop- 
ment of a later period. It is true that we hear of a state con- 

* For John Adams' interesting account of the Boston caucus, see Readings^ 
p. 12, note I. 

^ See above, p. 89. 

^ DalUnger, Nominations for Elective Offices in the United States, pp. 21-23. 

128 American Government and Politics 

vention in Pennsylvania as early as 1788, but it seems to have 
disappeared before a device known as the legislative caucus. 
Owing to the difficulties of communication and the small number 
of elective state offices, the expedient of nominating state tickets 
by the convention method did not appear attractive to the 
politicians. For a time, therefore, nominations were made in a 
variety of fashions. For example. Judge Yates was nominated 
by the Federalists as a candidate for governor of New York, in 
1789, by "a party meeting" held in New York City, at which 
Alexander Hamilton and several other persons were appointed 
a committee of correspondence to promote the election of their 
nominee. In 1792, George Clinton was nominated governor of 
that state at a Republican meeting held in New York City, said 
to have been composed of "gentlemen from various parts of the 

The Legislative Caucus 

It was not long, however, before the power of making state 
nominations was assumed by the members of each party in the 
state legislature, who organized themselves into an assembly 
known as the legislative caucus.^ It was the practice for this 
caucus to meet officially, usually in the capitol building, select 
the candidates, and issue a signed proclamation or appeal for 
support. In conducting the campaign, the legislative caucus 
organized correspondence committees throughout the state. 
Although this newer device was more representative than the 
older irregular mass meetings which it supplanted, it was, of 
course, not so completely representative as the later state con- 
vention. For instance, if a county had no Federalist member in 
the state legislature, it would have no weight in the selection of 
the state candidates, although it might contain a number of 
Federalist voters. The injustice of this arrangement was recog- 
nized in New York as early as 181 7, when the Democratic legis- 
lative caucus was reenforced by representatives of the Demo- 
cratic voters from those counties which had Federalist members 
in the state assembly.^ 

In 1800 the legislative caucus was transferred to Congress as 
a mode of making nominations for President and Vice-President. 

^ For a description of a legislative caucus, see Readings, p. 112. 
^Ihid., p. 112. 

The Development of Party Machinery 129 

It appears that early in the year 1800 a few Federalist members of 
Congress met in the Senate chamber for the purpose of coming tc 
some decision with regard to the pending presidential election. 
Owing to the secrecy which shrouded this meeting, there is con- 
siderable uncertainty as to its real purpose. It is contended by 
some that Mr. Hamilton desired to use it to thwart Mr. Adams; 
and by others, that it was convened with a view to lending sup- 
port to the candidacy of Mr. Adams. At all events it was roundly 
denounced by the Republicans as an attempt to coerce the voters; 
but it proved such an admirable device that the Republicans held 
one of their own for the purpose of selecting a nominee for Vice- 
President, the candidacy of Jefferson for the presidency being con- 
ceded. From this time forward the congressional caucus was 
regularly used in making presidential nominations until it was 
overthrown by the adoption of the convention system. 

It was soon recognized that the method of nomination by the 
congressional caucus had made a revolution in the system set 
up by the framers of the federal Constitution, according to which 
the presidential electors were supposed to be free to vote as they 
pleased. Clearly the real power of selecting the President had 
passed from the hands of the electors to an extra-legal body. 
"The members of the two Houses of Congress," said Mr. Gaston, 
in a speech delivered in the House of Representatives in 18 14, 
"meet in caucus or a convention and there ballot for a President 
or Vice-President of the United States. The result of their 
election is published through the Union in ^he name of a recom- 
mendation. This modest recommendation then comes before 
the members of the respective state legislatures. Where the 
appointment ultimately rests with them, no trouble whatever is 
given to the people. . . . Where in form, however, the choice of 
electors remains with the people, the patriotic members of the 
state legislatures, vieing with their patriotic predecessors, back 
this draft on popular creduUty with the weight of their endorse- 
ment. Not content with this they . . . make out a ticket of 
electors and thus designate the individuals who in their behalf 
are to honor this demand of their suffrages. This whole proceed- 
ing appears to be monstrous; it must be corrected or the char- 
acter of this government is fundamentally changed. Already, 
in fact, the chief magistrate of the United States owes his office 
principally to aristocratic intrigue, cabal, and management." 

130 American Government and Politics 

It was not, however, by constitutional amendment, as man^i 
members of Congress proposed, that the caucus method of mak- 
ing nominations was to be destroyed; it met its doom at the 
hands of the national convention organized by a popular uprising 
against the domination of the political leaders in Congress. 

The Rise of the Nominating Convention 

This uprising came with the democratic movement that carried 
Jackson into the presidential office.^ The last congressional 
caucus was held in 1824, when a few friends of William H. Craw- 
ford gathered in the chamber of the House of Representatives 
and selected him as their candidate for the presidency.^ The 
subsequent election showed that Jackson was by far the most 
popular candidate, although his support in Congress was almost 
negligible. Jackson's friends^ therefore, turned fiercely upon 
the caucus. The legislature of Jackson's state, Tennessee, had 
already sharply denounced it.^ and several other states followed 
this example. In the presidential election of 1828, no attempt 
was made to hold a congressional caucus. Jackson was nomi-* 
nated by "spontaneous" legislative caucuses and conventions 
held by liis followers in the various states, and thus, to use a 
phrase then current, "King Caucus met his death." 

About the same time, the legislative caucus was being aban- 
doned as a machine for nominating state candidates. It appears 
that the state convention was revived in Pennsylvania as early 
as 181 2, but it was 'not until 1823 that the last vestige of the 
older caucus system was swept away by the definite establish- 
ment of the convention composed of delegates supposed to have 
been regularly chosen.^ In Rhode Island the mixed legislative 
caucus disappeared by 1825, and regular conventions, composed 
of delegates from all the towns in the state, were fully established 
in popular favor.^ In New York, the nomination of Mr. Craw- 
ford for President by the congressional caucus at Washington 

^ See above, p. 108. 

^ For the minutes of this caucus, see Readings, p. 1 14. 
5 See Readings, p. 117, for this denunciation. 

^ J. S. Wahon, "Nominating Conventions in Pennsylvania," American 
Historical Review, Vol. IT, pp. 262-278. 

•* Proceedings of the Rhode Island Historical Society, Vol. I, pp. 2.58-260. 

The Development of Party Machinery 131 

resulted in the call of a Jackson conference which resolved that 
a state convention, composed of the same number of delegates 
as the lower house of the state legislature, should be chosen by 
the voters opposed to Mr. Crawford and in favor of "restoring to 
the people" the choice of presidential electors. This convention 
assembled at Utica in August, 1824, and thus began the regular 
convention system in the state of New York. In general, the 
legislative caucus had been most violently opposed by the dis- 
gruntled poUticians, who had failed to carry their plans in it, and 
they eagerly welcomed the convention system as a method of 
ousting the older machine. 

The state convention, composed of delegates selected by party 
voters, afforded a splendid model for a national convention; and 
in 183 1 this piece of state political machinery was brought into 
use for national purposes. About this time, there had sprung up 
a violent opposition to secret societies, especially to the Masonic 
fraternity, on account of the mysterious disappearance of a man 
who had proposed to reveal Masonic secrets. It was contended 
that Free-Masonry was a pohtical danger; and at a preliminary 
assembly of Anti-Masonic delegates at Philadelphia in 1830, a 
call was issued to all opponents of secret societies to send delegates 
to a convention for the purpose of selecting candidates for Presi- 
dent and Vice-President. The follo\ving year the first national 
convention, composed of 114 Anti-Masonic delegates, assembled 
at Baltimore, and nominated a ticket which was sadly defeated 
in the ensuing election. Although the Anti-Masonic party 
speedily disappeared, it initiated a revolution in our national 
political machinery. 

The example thus set by the Anti-Masons was followed in 
December of the same year by the assemblage of a convention, 
representing the National Republican or Whig party, at the 
city of Baltimore. There were present 156 delegates, represent- 
ing eighteen states and the District of Columbia. Clay was 
nominated as the candidate of the party for President; a dele- 
gation was sent to Washington to notify him, and received his 
acceptance; and an appeal to the voters, called "the first plat- 
form ever adopted by a national convention," was drawn up. 
Furthermore, a campaign committee, composed of one member 
from each state selected by the delegations at the convention, 
was instituted. Although the nomination of Andrew Jackson 

132 American Government and Politics 

by the Democrats to succeed himself was a foregone conclusion, 
a Democratic national convention was called for the purpose of 
putting forward Jackson's friend, Van Buren, for the office 
of Vice-President. It seems that Mr. Lewis, an astute wire- 
puller, conceived this device as a means of excluding rivals 
from the field; and it appears that Amos Kendall, a member of 
Jackson's kitchen cabinet, persuaded a Democratic member of 
the New Hampshire legislature to use his local legislative caucus 
in calling a national convention.^ This assembly met at Balti- 
more in the spring of 1832, and, as Jackson had shrewdly planned, 
nominated Van Buren for the office of Vice-President. 

As the scheme worked so excellently in this instance, Jackson 
determined to use it to secure the presidency for Van Buren in 
1837. Accordingly he wrote to a friend suggesting a national 
party assembly "fresh from the people" for the purpose of 
nominating candidates. The convention met in Baltimore in 
the spring of 1835, and, according to the well-laid plan, nominated 
Van Buren. Preparatory to the election of 1840, the Whigs and 
the Democrats held general party assemblies to choose their 
candidates; and since that time all parties have uniformly 
employed the national convention in selecting nominees for 
President and Vice-President. 

It was many years, however, before each party was so com- 
pletely organized down to the election district or precinct as to 
secure regularity in the choice of delegates. In the earlier 
period it seems that delegates to the national convention were 
sometimes chosen by state conventions, sometimes by legislative 
caucuses, and sometimes by local meetings. Even as late as 
1864 some of the delegates to the Repubhcan (or Union) national 
convention were selected by legislative caucuses. Owing to 
this irregularity in choice, there were always many contesting 
delegates, and, as there was no possibiUty of applying definite 
rules, it seems that the majority of the convention usually decided 
contests by admitting their own supporters. Occasionally, how- 
ever, it was found expedient to placate both factions, and conse- 
quently the two contending delegations would be admitted, each 
member being given one-half a vote. 

Once estabUshed, the national convention and its accompany- 

* For the opening address at this convention, see Readings, p. 119. 

The Development of Party Machinery 133 

ing political devices began to force, steadily and persistently, 
the completion of the party system down to the lowest unit of 
local government in every state and territory. The Republican 
call for the national convention after the year 1884 provided that 
the delegates at large should be chosen by state conventions, and 
that the other delegates should be selected by congressional 
conventions. The necessity of deciding between contesting 
delegations forced the national committee and the convention to 
look into the rules and regulations governing the selection of 
delegates, and as a result, from year to year, the rules of state 
party organizations controlling primaries and local party con- 
ferences became more and more precise. Although the call of 
the Democratic national convention left the selection of all 
delegates to the determination of the convention in each state, 
the result was the same. 

The national party organization was further developed and 
centralized shortly after the close of the Civil War by the estab- 
Ushment of a congressional campaign committee at Washington 
for the purpose of directing congressional elections. The com- 
mittee of each party was composed, either principally or entirely, 
of members of Congress selected by their party colleagues for 
their astuteness in conducting campaigns. This committee has 
always worked in more or less close relations with the national 
committee and has been able to penetrate into the local poHtics 
of many districts more deeply than the larger committee has been 
able to do. 

The Forces Working for Strong Party Organization 

The pressure for organization and discipline brought to bear 
upon the states and other subdivisions by the national machine 
was increased very powerfully by local circumstances. The 
keen competition of parties for the offices and their spoils neces- 
sitated closer cooperation, more discipline in the ranks, and 
more efficient leadership. Thus it came about that in a number 
of western and southern states the convention system and its 
accompanying organization had to be adopted, although they 
were odieus to the more independent politicians. As Mr. Lin- 
coln pointed out in Illinois, in defence of the adoption of the 
convention by the Whigs, it was madness for any political party 

134 American Government and Politics 

constantly to suffer defeat on account of dissensions in its own 
ranks which might be avoided by a general agreement in a party 
convention.^ The necessity for state and local party organiza- 
tion was further emphasized by the transformation of the older 
appointive offices into elective offices, and by that rapid increase 
in the number of government ofiicials which inevitably accom- 
panied the social and economic development of the common- 

As the large number of elective ofiices made it impossible for 
the mass of the people to join in maldng nominations and running 
the political machinery, party business fell more and more into 
the hands of the politicians who were experts in the mysteries 
and the manipulations of primaries and elections. Wherever 
important elective offices were created, machinery for making 
party nominations inevitably followed, with its long train of 
primaries, caucuses, and conventions. Each new elective 
office only added to the weight, complexity, and strength of 
the party machine. 

Party organizations gathered great power also from the devel- 
opment of railways and industries within the states. With this 
economic advance charters, franchises, and special legislation 
were in great demand, and the political party that controlled a 
state legislature had within its gift privileges of almost priceless 
value. The agents of corporations learned that they could best 
secure their coveted advantages by making terms with the 
leaders of the political organizations, who would in turn manipu- 
late the primaries and conventions in such a way as to secure 
control of the necessary instruments of government. 

Party organization in the S»uth was greatly strengthened after 
the Civil W^ar by the strenuous efforts of the whites to oust the 
Republican "carpet-baggers," retire the negroes from the polls, 
and secure their ancient dominion. Any respectable white man 
who refused to cooperate with the Democratic party in its deter- 
mination to reconquer the position that had been lost by the war 
was regarded as a traitor to his community. Thus the South 
became "soUd," and the government in each commonwealth 
was identified with the organization of the Democratic party.^ 

* For this important document, see Readings, p. 123. 
' See Readings, p. 402. 

The Development of Party Machinery 135 

The way to ofifices, honors, and emoluments was only open to 
champions of the ruling white organization, and the freedom 
of debate and discussion, which was so characteristic of the 
South before the Civil War, was supplanted by party discipUne 
that kept the ranks in order against "negro domination." 

The rise of cities added a new element of strength and com- 
plexity to party machinery. As the great cities of Boston, New 
York, Cincinnati, Philadelphia, Chicago, and St. Louis forged to 
the front they offered unparalleled opportunities for the organi- 
zation and discipUne of party w^orkers. The election of the 
municipal officers led to the establishment of municipal pri- 
maries, caucuses, conventions, and committees — wheels within 
wheels, the mysteries of which could only be understood by ex- 
pert politicians who kept constant watch on their operation. It 
was not only the spoils of the offices — their fees, salaries, and 
other emoluments — that attracted the politicians and led them 
to organize their armies of workers. Franchises for street rail- 
way lines, water works, gas and electric light plants, telephones 
and telegraphs, elevated railways, and subways had to be granted; 
and whoever possessed the political power in the municipahty 
could form a connection with the private interests seeldng privi- 
leges, which would yield revenues undreamed of by kings of old. 
With the concentration of population the number of saloons 
increased; the liquor interests began to fight for licenses and for 
immunities from the enforcement of the dosing laws; and the 
saloons in every ward and precinct naturally became poUtical 
centres in close connection with the powers higher up that were 
manipulating the whole political machine.^ 

The Rise and Development of Tammany Hall 

The evolution in municipal political machinery is illustrated 
in a striking manner by the rise and development of Tammany 
Hall in New York City. This organization was established some- 
time before 1789, for the purpose of connecting "in indissoluble 
bonds of friendship, brethren of common attachment to the 
pohtical rights of human nature and the liberties of the country." 

' See Readings, p. 505, for the interesting testimony of a New York police- 
captain as to the connection established between the saloons and the domi- 
nant political organization. 

136 American Government and Politics 

It seems that William Mooney , an Irishman of humble extraction, 
anxious to "diffuse the Hght of Uberty," was chiefly instrumental 
in the organization of this society.^ As its purposes were patriotic 
and benevolent, it took the name of an Indian chief of WilUam 
Penn's time, Tammany, celebrated for his wisdom, peace, diplo- 
macy, and exemplary life. Tammany had been canonized as a 
saint by the Revolutionary army in place of St. George, the 
slayer of the dragon and the patron protector of the British 
army. In honor of this noble red man, a number of Tammany 
societies had been established at various points throughout the 
East. The New York organization, therefore, got its name from 
older societies, and, as if to give more weight to its American 
character, it took the name of Columbus also and called itself 
"the Tammany Society or the Columbian Order." 

The early purposes of the Tammany Society were social and 
patriotic rather than poUtical, and it seems strange to say that 
some of the first leaders were decidedly anti-Catholic. As a 
secret society its membership was limited; candidates were 
initiated according to prescribed rites; and officers bearing In- 
dian titles were elected. The Society, however, in its membership 
and spirit was in decided contrast to the more aristocratic 
classes of New York City. When it was incorporated in 1805, 
iti avowed object was to afford "rehef to the indigent and dis- 
tressed of the said association, to widows and orphans, and 
others who may be found proper objects of free charity." 

The Tammany Society seems to have entered poHtics in support 
of Jefferson during the hot campaign of 1800, and from that 
time forward it began to exercise more and more control ovei: 
elections in the city. The extension of the suffrage by the state 
constitutional convention of 1821 strengthened its hold upon the 
working-class electors of the city; and its influence was further 
advanced on the adoption of universal manhood (white) suffrage 
by the constitutional amendment of 1826.^ A few years later 
the great famines in Ireland began to drive thousands of Irish 
peasants to America. They were received with open arms by 

1 The traditional date, 1789, for the estabhshment of Tammany Hall 
seems to be wrong, and even Mooney's part in it is uncertain. See Dr. 
E. P. Kilroe, St. Tammany atid the Origin of the Tammany Society (New 
York, 1913)- 

2 See above, p. 85. 

The Development of Party Machinery 137 

the Tammany Society, and through that organization many rose 
to positions of wealth and influence. 

As the population of the city and the membership in the 
Society increased, a Democratic-Repubhcan poUtical organization 
was slowly evolved which was nominally distinct from the Colum- 
bian Order. This pohtical organization, in the •beginning, took 
the form of a "general meeting" composed of members of the 
Society and its poUtical supporters. At length, about 1822, the 
general meeting was supplanted by a general committee com- 
posed of delegates elected at ward primaries; and in due time 
complete control over the Society and the Democratic-Repubhcan 
organization, formed in connection with it, passed into the 
hands of a sub-committee of the general committee.^ For 
practical purposes, moreover, the leading members of the general 
committee and the sub-committee were at the same time officers 
and leading members in the Tammany Society. 

With the victory of the Jeffersonian party in the presidential 
election, the spoils of federal offices in New York City began to 
fall to the leaders in the Tammany organization. In 1839 the 
organization elected its first mayor of New York, and thus the 
spoils of local offices were added to the rich gains made in federal 
elections. The Society was further strengthened by the mul- 
tiplication of municipal offices, and the astounding rise in local 
expenditures. Here were unlimited opportunities for an astute 
leader bent upon the manipulation of poUtics for his own personal 

This leader appeared in 1863 in the person of Wilham Marcy 
Tweed^ who, in that year, became chairman of the general com- 
mittee of Tammany Hall and the Grand Sachem of the Tammany 
Society. Tweed was born in 1823; he was educated at a pubhc 
school, and entered politics in his ward as a fireman in a volun- 
teer company about 1850. He was shortly elected to the county 
board of supervisors, which had large powers distinct from those 
of the city authorities, in levying local taxes and spending money 
for county buildings and improvements. He served on this 
board for a period of thirteen years, being four times elected 
its president; and he used the financial power which it gave him 

^ See below, chap. xxx. 

^ There were, however, leaders of some renown before Tweed's day. 

138 American Government and Politics 

to extend his authority over the other branches of the city admin- 
istration. From this point of vantage he began an organization 
within the Tammany Society for the purpose of controUing the 
city administration. In 1869, the Tweed group had possession 
of the mayor's office, the common council, the district attorney's 
office, the county and city treasury, the street department, the 
comptroller's office, the municipal judgeships, the speakership 
of the assembly at Albany, the state legislature, and even the 
executive department of the state.^ 

The pernicious operations of this group when in control of the 
metropolis and the commonwealth cannot even be catalogued 
here. Between i860 and 1871 the debt of the city was multi- 
plied nearly fivefold; a county courthouse which was to cost 
$250,000 really cost more than $8,000,000, the taxpayers being 
charged $470 apiece for chairs and $400,000 apiece for safes; 
and under the specious title of " general purposes " enormous sums 
of money were paid out fraudulently by the comptroller. In 
short, no bounds seem to have been set to the ambitions of Tweed 
and his fellow- workers; but they overreached themselves in 
187 1, when their operations were exposed by the New York 
Times. A committee of indignant citizens was formed to break 
up the ring, and prosecute the criminals. Tweed was arrested 
on the charge of having stolen $6,000,000; he was convicted, 
fined, and sentenced to twelve years in prison in 1873; released 
on an order of the court of appeals, he was rearrested and con- 
fined in Ludlow Street jail, from which he escaped in 1875, only 
to be arrested in Spain and brought back to prison, where he died 
shortly afterward. The other leading members of the ring were 
likewise made to feel the penalties of the law. 

The exposure of this group of astute and unscrupulous political 
operators showed to the American people for the first time the 
precise ways in which powerful political machines might be built 
up out of the spoils of municipal offices and municipal privileges. 
New York City has not been the only sufferer from exploiting 
pohtical organizations; Philadelphia, Chicago, Cincinnati, St. 
Louis, San Francisco, and, in fact, every other American munici- 
pality of any size, has had an experience not differing fundamen- 

^ For Croker's own description of his Tammany organization, see Readings^ 
P- 567- 

The Development of Party Machinery 139 

tally in kind, however much in degree, from that which New York 
encountered at the hands of Mr. Tweed and his followers. 

The Abuses of Political Organizations 

With the development of powerful national, state,* and munic- 
ipal poUtical machinery there came innumerable specific abuses. 
In order to secure pliant tools as delegates to conventions and 
members of committees, the political directors frequently de- 
vised practices which excluded the honest voters from participa- 
tion in the party primaries. They instituted the '' snap primary," 
that is, one held Avithout proper notice, or unexpectedly, or at 
some unusual date. They packed primaries with their hench- 
men, who would drive out or overwhelm any dangerous oppo- 
nents.- They padded the rolls of party members with the names 
of dead men, or men who had long ago left the community. They 
stuffed the ballot boxes and they prepared the slates which were 
forced through the nominating conventions in the face of oppo- 
sition. They entered into alliance with railway and other cor- 
porations from whom they received campaign contributions or 
levied tribute in other forms.^ It was thus that Jay Gould was 
able to declare, mth a note of triumph: "I wanted the legisla- 
tures of four states, and to obtain control of them, I made the 
legislatures with my own money; I found this plan a cheaper 
one." Municipal councils and state legislatures all too frequently 
granted franchises, special laws, and innumerable privileges with- 
out regard to public welfare or the future of the country, gener- 
ally under the dominance of political leaders who had sold out 
to the privilege-seekers. 

More open, though by no means as dangerous, was the con- 
tinual extension of the spoils system under which public offices 
were distributed for party services, and efficiency in administra- 
tion sacrificed to strengthen pohtical machines. In cities, states, 
and at Washington the spoils system took possession of poUtics. 

^ For Mr. Wanamaker's description of the Pennsylvania machine, see 
Readings^ p. 128. 

^ For an example, see Readings, p. 585. 

^ For the practices of the Sugar Trust, see Readings, p. 572; see also Ostro- 
gorski. Democracy arid the Organization of Political Parties, Vol. II, pp. 149- 
204; for the way the politicians sometimes laid tribute on raihvay corpora- 
tions, see Readings, p. 478. 

140 American Government and Politics 

Even a man of the courage and integrity of Lincoln was unable 
to resist the demands of the spoilsmen. A member of Congress 
who had secured a local postmastership for a henchman de- 
manded his removal on personal grounds; " and I must turn him 
out," said Mr. Lincoln; "I do not want to but I must, — there 
is no help for it." When a friend asked Lincoln whether he or 
the congressman was President of the United States, Lincoln 
quickly replied that the congressman was f*resident. 

Standing on this firm economic foundation, — the spoils of 
office and special privileges, — the organizations of the two great 
parties seemed in a fair way to escape from popular control alto- 
gether. Men of great abiUty, who sought to work independently, 
were promptly shown that all avenues of advancement would be 
closed unless they consented to at least some of the leading 
schemes of the directors. "The party," says Ostrogorski,^ 
" became a sort of church which admitted no dissent and piti- 
lessly excommunicated any one who deviated a hair's-breadth 
from the established dogma or ritual, were it even from a feeling 
of deep piety, from a yearning for a more perfect realization of 
the ideal of holiness set before the believer." This spirit of party 
loyalty was reflected in an editorial of the Richmond Whig in 
1843, on the "no-party man." "We heartily join," said the 
editorial, "in desiring the extermination of this pestiferous and 
demoralizing brood, and will do whatever we can to effect it. 
. . . Let the Whigs and Democrats everywhere resolve that the 
gentry who are too pure to associate with either of them or to 
belong to either party, shall not use them to their own individual 
aggrandizement. Let them act upon the principle that the 
Whig or Democrat who has sense enough to form an opinion, 
and honesty enough to avow it, is to be preferred to the imbecile 
or the purist, or the mercenary, who cannot come to a decision, 
or is ashamed of his principles, or from sordid considerations is 
afraid to declare them." The party aHgnment, sharp enough 
before the Civil War, became even sharper for a long time after 
that great crisis, so that political independence or sympathy with 
any "third party" principles came to be regarded as a species 
of treason and intellectual dishonesty. 

Each of the two great party organizations rested upon the 

> Vol. II, p. 92. 

The Development of Party Machinery 141 

supposedly popular basis of the party primaries, in which, theo- 
retically, every party member could share in the choice of can- 
didates and the determination of party poUcies. It was on the 
primaries, therefore, that the standing army of party workers, 
supported by the. spoils of politics, concentrated their attacks; 
they were always busy; they knew when the term of every 
officer expired and new nominations must be made; they knew 
the dates and places of primary meetings, and, as eternal vigi- 
lance was the price of victory, they took possession of the field, 
leaving the ordinary citizen engaged in the pursuit of a liveli- 
hood in other than political methods to grumble at being dispos- 
sessed of his political power. 

Attempts to Subject Parties to Legal Control 

Amid the momentous changes which followed the Civil War, 
— the rapid growth of industries, the swift development of the 
Great West, — the citizens were so much engrossed in private 
affairs that they let the politicians have full and undisputed 
sway for almost a generation. Slowly, however, there came an 
awakening to the fact that, important and necessary as party 
organization was in a democracy, it might be perverted from its 
true function of representing and carrying into effect popular 
will. Thereupon public-spirited men began a struggle for legis- 
lation which would substitute regular, compulsory, and public 
practices for the voluntary customs which the parties had devel- 
oped under the direction of leaders. 

The first attack was made upon the ballot and elections. Up 
until about 1880 the printing and distribution of ballots was left 
entirely in the hands of the various political organizations, and, 
generally speaking, there was no secrecy at all about elections, 
for each party furnished its members with ballots of a certain 
color, and it was easy to see how every one voted. The cost of 
printing ballots deterred poor men from entering politics, and 
made it well-nigh impossible for a third party, with no spoils, to 
gain a foothold. In the early eighties, a cry went up from the 
reformers for the introduction of the AustraHan ballot system, 
according to which public authorities were to furnish the ballots 
for all parties and provide complete secrecy for the voters. The 
most extravagant claims wxre advanced for this new reform: "It 

142 American Government and Politics 

would not only put an end to bribery and intimidation of the 
electors and to frauds in the taking of the vote, but it would un- 
dermine the very foundations of the Machine: it would deprive 
it of a pretext for interfering with elections, for employing 'workers,' 
for levying assessments, and would strip its candidates of their 
privileged character; the assent of the Machine would no longer 
be required for getting on the printed list; the state, which would 
henceforth make up this ballot, would enter every candidate on it 
whether recommended by a party organization or not, would 
submit them all without distinction to the electors; a poor man 
would therefore have the same facilities as a rich man, and an 
independent the same chances as a party hack of entering pubUc 
life. The promoters of the reform succeeded in creating a genu- 
ine current of opinion in its favor; sermons were preached in the 
churches for the AustraUan ballot, numerous petitions were ad- 
dressed to the legislatures, and eventually the reformers ended by 
intimidating the politicians intrenched in those assemblies." ^ 
State after state adopted the Australian system, and assumed 
the responsibility of printing and distributing the ballots and 
safeguarding the secrecy of elections until by the end of the first 
decade of the twentieth century all but two states had adopted 
it in some form.^ It has failed to realize the high hopes of its 
promoters, but it has been of such undoubted service in puri- 
fying elections that no one would think of returning to the old 

The failure of tliis serious attempt to abolish party machines 
by merely regulating elections while leaving the preliminary 
nominating work to the untrammelled control of party organi- 
zations, soon raised a demand that the state should go behind 
the elections and supervise the primaries of parties, their com- 
mittees, conventions, and campaign funds. 

Even before the adoption of the Australian ballot, California 
seems to have opened this new phase in the evolution of party 
government by passing, in 1866, a tentative measure providing 
for regularity and publicity in the conduct of primaries and 
caucuses, but at the same time allowing party committees to 
decide whether the rules laid down in the statute should become 
binding on them. Five years later, Ohio enacted a law contain- 

* Ostrogorski, Vol. II, p. 500. ^ See below, chap. xxx. 

The Development of Party Machinery 143 

ing similar optional regulations; and in a short time other states 
followed with uncertain and halting steps the examples thus af- 
forded. The notion of compulsory regulation of party concerns 
was vigorously combated, because it was urged that whenever 
the members of a party believed abuses existed the voluntary 
adoption of the statutory regulations would immediately follow. 
Logic, however, was defied by events, or rather by pressures which 
were not apparent to the logicians. Permissive statutes failed 
completely to accomplish the purpose for w^hich they were at first 
deemed sufiicient. After a lapse of a few years, during which the 
results of the AustraUan ballot were awaited, there began to come 
from our state legislatures a series of compulsory statutes, at- 
tacking first the minor features of party organization and opera- 
tions, and then extending in every direction, until the laws of the 
last decade have made the party system an integral part of the 
legal framework of government. "The method of naming candi- 
dates for elective pubUc offices by poUtical parties and voluntary 
political organizations," runs the Oregon primary law of 1905, 
" is the best plan yet found for placing before the people the names 
of quahfied and w^orthy citizens from whom the electors may 
choose the officers of our government. The government of our 
state by its electors and the government of a political party by 
its members are rightfully based on the same general principles." ^ 
A careful, but probably not exhaustive, review of the state 
legislation of the six years 1901-1906, reveals more than sixty- 
two statutes, many of them broad and comprehensive, regulat- 
ing political parties in their varied operations.^ The years 

^ For this interesting preamble, see Readings, p. 132. 

^ In 1 90 1 statutes relating to primaries were enacted in Nebraska, Cali- 
fornia, Connecticut, Florida, Georgia, Illinois, Indiana, Massachusetts, Min- 
nesota, Missouri, Montana, New Hampshire, New York, North Dakota, 
Oregon, and Tennessee; in 1902, in Mar}4and, Massachusetts, Minnesota, 
Mississippi, and New York; in 1903, in California, Florida, Idaho, Maine, 
Massachusetts, Nebraska, New Hampshire, New Jerse}^, and Rhode Island; 
in 1904- in Alabama, Louisiana, Massachusetts, New Jersey, Ohio, Oregon, 
and Wisconsin; in 1905, in Arizona, Connecticut, Florida, Illinois, Indiana, 
Maine, Massachusetts, Nebraska, New Hampshire, North Dakota, South 
Carolina, South Dakota, Tennessee, Wisconsin, Michigan, Montana, and 
Oklahoma; in 1906, in Illinois, Maryland, Pennsylvania, Texas, Louisiana, 
Michigan, and Wisconsin. For a review of primary legislation see current 
issues of the PoHtical Science Review and also the American Year Book. 

144 American Government and Politics 

1907-08 showed no relaxation of legislative activity in this 
direction, for they gave us the most revolutionary direct primary 
laws yet devised: those of Wisconsin, New Jersey, Iowa, Illinois, 
Missouri, Nebraska, Washington, and Kansas, leaving out of 
account less striking measures. Oklahoma came into the Union 
in 1907 with a startUng constitution requiring, among other things, 
that the legislature shall enact laws for a mandatory primary 
system which shall provide for the nomination of all candidates 
in all elections for state, district, county, and municipal offices, 
including that of United States Senator. In New York, Gov- 
ernor Hughes urged drastic reform in the primaries and party 
machinery at the legislative sessions of 1908, 1909, and 1910; and 
Maine, Massachusetts, and New Jersey adopted state-wide pri- 
mary laws in 191 1 ; New York followed in 1913 and in subse- 
quent years there was a steady extension of the principle of direct 
nominations. In the presidential campaign of 191 2 a prefer- 
ential primary was used in the nomination of candidates in several 
states. It was confidently predicted that the national nomi- 
nating convention would be superseded by the primary, but the 
prophecy was not fulfilled. In 191 6 the presidential primary 
received httle attention, while the convention enjoyed its old 
prestige. In 1920 the primary was again extensively used. 

The primary laws fix the dates and places of party primaries, 
provide official ballots furnished by the government to all parties 
without charge, regulate the composition and powers of party 
committees, abolish conventions altogether or control their com- 
position and procedure, institute, in many instances, direct 
nominations by party vote for nominations by conventions, 
forbid contributions by corporations, compel party committees 
to account for the receipt and disbursement of funds, Hmit the 
amount which the respective candidates may spend, and other- 
wise control the machinery and practices of all parties.^ 

1 This whole subject is treated in great detail below, chap. xxx. 




The Doctrine of Limited Government 

It is a common error to regard the federal Constitution as an 
instrument relating solely to the government that has its sea_t at 
Washington. In reality, it provides a general political system 
by distributing the pubUc functions between the state and na- 
tional governments and by laying down certain fundamental 
limitations on the powers which each may exercise. In other 
words, while creating a national executive, legislature, and judi- 
ciary, and marking out their spheres of power, the Constitution, 
expressly and by implication, also limits the domain within which 
the government of each state must operate. It does more: it 
creates a system of private rights secure against all government 
interference; it provides for each person "a sphere of anarchy" ^ 
— of no government — so to speak, within which he may act 
without any intervention on the part of public officials. In some 
matters the individual is protected from the federal government, 
in others from the state government, and in still others he is 
entirely free from both governments. These limitations are not 
mere political theories or vague declarations of rights; they are 
fairly precise rules of law expounded and applied by the courts, 
enforced by proper executive authorities, and respected by the 

^ See Burgess, Political Science and Constitutional Law, Vol. T, pp. 174 ff. 

^ For the constitutional limitations on the federal government, see Read' 
ings, pp. 134 ff., and on the state governments, ibid., pp. 391 ff. By a comparv 
son the limitations common to both may be ascertained. 
I- 145 

I46 American Government and Politics 

This system of private rights or individual liberty, however, 
cannot be understood by learning the clauses of the Constitution 
which contain prohibitions on the state and federal governments. 
It is really a difficult and technical branch of law, to be mastered 
only by a painstaking examination of a long hne of judicial de- 
cisions interpreting those clauses. Failure to recognize this fact 
constantly leads to many incorrect assertions about 'Hhe rights 
of American citizens." For example, the poUce of a city forbid a 
Socialist parade or break up a street corner meeting; immediately 
there appear in the newspapers letters from indignant citizens 
denouncing the pohce for preventing the exercise of the " rights of 
free speech guaranteed by the Constitution of the United States." 
An examination of the clause, however, to which they refer shows 
that it is Congress that can make no law abridging the freedom of 
speech, the states being left to their own devices in dealing with 
such matters. It is not only ill-informed citizens that make this 
error. Such a serious and responsible body as the Republican 
national convention in i860 asserted in its platform, ''That the 
maintenance of the principles promulgated in the Declaration 
of Independence and embodied in the federal Constitution, — 
*that all men are created equal; that they are endowed by their 
Creator with certain inalienable rights; that among these are life, 
liberty, and the pursuit of happiness; that to secure these rights, 
governments are instituted among men, deriving their just powers 
from the consent of the governed,' — is essential to the preserva- 
tion of our republican institutions." Of course any student of 
history and law knows that the Constitution does not embody 
any such principles, and that the federal government is controlled 
only by the definite rules of law imposed by the written instru- 
ment itself. 

The fundamental character of these rules may be best illus- 
trated by a comparison with the English system. Any law 
passed by ParHament, — that is, by King, Lords, and Commons, 
— must be enforced; it cannot be called into question by any 
court; the only remedy for the citizen is at the ballot-box when 
members of the House of Commons are elected. If the British 
Parliament, therefore, should pass a law confiscating the land 
now owned by private persons, there would be no relief for the 
victims, unless the same Parliament or a succeeding one could be 
induced to repeal the law in question. If the Congress of the 

The Federal System of Government 147 

United States, however, should pass such a measure, it would be 
the duty of the courts on the presentation of the proper case to 
protect the land-owner in his property rights by declaring the law 
null and void, — in conflict with that section of the Fifth Amend- 
ment which provides that no person shall be deprived of life, 
liberty, or property without due process of law; and that private 
property shall not be taken for pubHc use without just compen- 
sation.^ Likewise if the legislature of a state should pass such a 
measure it would be the duty of the courts to protect the citizen 
under the Fourteenth Amendment forbidding any state to de- 
prive a person of life, liberty, or property without due process 
of law — compensation being, under judicial interpretation, an 
indispensable feature of "due process."^ 

In considering the limitations on the federal government, we 
must remember at the outset that Congress differs fundamentally 
from a state legislature. The former has only those powers which 
are expressly conferred by the clauses of the written instrument ; 
thelatter enjoys all powers of government, except those denied 
^ it by the federal Constitution and the state constitution under 
which it operates. The limited character of congressional 
authority is evident in the Constitution itself; and it is expressly 
enunciated in the Tenth Amendment, declaring that," The powers 
notdelegated to the United States by the Constitution, nor pro- 
hibited by it to the states, are reserved to the states respectively, 
or to the people." Nevertheless, Congress, acting under the 
clause authorizing it to make all laws necessary and proper for 
carrying into execution the powers expressly conferred, has been 
by no means as limited as the literal interpretation of this doc- 
trine would seem to imply.^ 

Private Rights under the Federal Constitution * 

The constitutional limitations on the federal government fall 
into two groups: ^ (a) Those designed to protect personal liberty 

^ Of course private property cannot be taken for private use at all. 

^ It should be noted, however, that the state retains its " police power " 
in spite of the constitutional limitations — that is, its power to make laws in 
the interest of health, public safety, morals, etc. See Readings, p. 394 and 
below, chap. xxii. ^ Readings, pp. 66 ff. and 237 ff.; see above, p. 72. 

'* Reference: Burgess, Political Science and Constitutional Laiv, Vol. I, 
pp. 184 £F. 

^ The limitations on state Kovernment are discussed below in chaD. xxit. 

148 American Government and Politics 

against arbitrary interference on the part of the government, and 
(6) those designed to protect private property against confis- 
cation and irregular action on the part of federal authorities. 

I. The Umitations on behalf of personal rights, which, under 
the Constitution run against the federal government, may be 
I divided into five classes. In the first place, Congress cannot make 
I any law respecting the estabUshment of a reUgion, nor can it in- 
I terfere with the freedom of religious worship. This does not 
mean, however, that any person has a right to conmiit an act, 
under the guise of a religious ceremony, which transgresses the 
ordinary law of the land. This point was discussed by the Su- 
preme Court in a case involving the right of Congress to prohibit 
polygamy in the territory of Utah and punish offenders who 
violated the law.^ Under this statute a Mr. Reynolds, who was 
indicted for the crime of polygamy, set up by way of defence the 
contention that under a religious sanction and according to a 
religious ceremony, he had married two wives. The Court held, 
however, that rehgion has to do only with the relations of man to 
*'an extra-mundane being," and that no citizen can claim a right, 
in the name of religious freedom, to violate a criminal statute. 
\ In the second place, Congress has no power to abridge freedom 
I of speech or of the press.^ It was the purpose of this clause to 
IpreverTf Congress from establishing a press censorship or enact- 
ing any law prohibiting political criticism. In spite of this express 
provision, Congress passed in 1798 a Sedition Act providing heavy 
penalties for resisting the lawful acts of the federal officials and 
for pubUshing anything bringing or tending to bring the federal 
government or any of its officers into disrepute. Under this act 
many American citizens were fined and imprisoned for what 
would be regarded to-day as harmless criticism of public author- 
ities. After the declaration of war on Germany in 191 7 Con- 
gress passed an Espionage Act imposing penalties for those who 
attempted to cause disloyalty in the armed forces, obstructed 
enlisting, or violently attacked the government of the United 
States. The Sedition Act of May 16, 1918, was even more 
drastic and sweeping in its terms. The constitutionality of 
this legislation was challenged, but the Supreme Court sus- 
tained it. 

1 Reynolds v. United States, 98 U. S. R., 145. 

2 In the territories and the District of Columbia, of course. Congress, hav- 
ing general legislative power, can establish the law of libel and slander. 

The Federal System of Government 149 

» In the third place, the Constitution guarantees to the people 
ihe right to assemble peaceably and petition the government for 
redress of grievances. This right is upheld against state govern- 
iients as well as the federal government; but, of course, it does 
not secure to the petitioners the privilege of having their petition 
acted upon by the federal authorities.^ 

In the fourth place, the power of the federal government to 
punish persons is hedged about in many ways. Congress has no 
power to define treason; it is defined in the Constitution: "Trea- 
son against the United States shall consist only in levying war 
against them or in adhering to their enemies, giving them aid 
and comfort." Congress cannot, therefore, vindictively declare 
any act treason which does not meet its approval. 

Furthermore, the trial of persons accused of this high crime is 
carefully safeguarded. No person can be convicted of treason 
unless on the testimony of two witnesses to the overt act or on 
confession in open court. In the case of the United States v. 
The Insurgents,^ the Court, interpreting a federal statute, 
ordered that the names of the jurors and a list of witnesses 
should be furnished the accused; and that a reasonable time be 
allowed for the defence to prepare its case after receiving this in- 
formation. The Court, furthermore, declared that until the overt 
act of treason had been proved by testimony of two witnesses, 
no evidence relating to the charges could be introduced. 

While Congress has the power to provide the penalties for 
treason, the Constitution expressly stipulates that no attainder 
of treason shall work corruption of blood or forfeiture except dur- 
ing the life of the person attainted. In old EngUsh practice, 
corruption of blood meant the destruction of all inheritable 
quaUties, so that any attainted person could not inherit lands or 
other hereditaments from his ancestors nor retain those which he 
already possessed or transmit them to his heirs.^ The consti- 
tutional provision mentioned above was designed to prevent this 
punishment of the relatives of traitors; and accordingly no pun- 
ishment or proceedings may be construed to work a forfeiture of 
the real estate of a traitor longer than his natural life.* 

* Burgess, Middle Period, pp. 253-296. ' 2 Dallas, 335. 
^ Story, Commentaries on the Constitution (5th ed.), sec. 1299. 

* Bigelow V. Forrest, 9 Wallace, 339. 

150 American Government and Politics 

In the fifth place, proceedings against persons charged with 
crime under the federal law are controlled by several explicit 
provisions. Congress cannot act as a court by passing a bill of 
attainder condemning any person to death or to imprisonment 
or imposing any penalty whatsoever. Congress can pass no ex 
post facto law; that is, no law making an act a crime which was 
not a crime when committed, or adding new penalties after a 
commission of an act, or modifying the procedure in any such way 
as to make it substantially easier to convict.^ Federal authori- 
ties have no power of arresting wholesale on general warrant; 
all warrants of arrest must be issued only upon probable causes 
supported by oath or affirmation and particularly describing the 
place to be searched and the persons and things to be seized. 
Indictment by grand jury and trial by jury are secured to all 
persons coming within the jurisdiction of the federal authorities, 
except in the insular possessions.^ The writ of habeas corpus can- 
not be suspended unless in case of rebellion or invasion, when it 
may be required by public safety; that is, under all ordinary 
circumstances any person held by federal authorities has the right 
to have a speedy preliminary hearing before a proper judicial 
tribunal.^ Excessive bail cannot be demanded by federal authori- 
ties; in other words, except in capital cases, federal courts must 
release prisoners on bail, and must not fix the amount at such an 
unreasonable sum as practically to deny the right. Finally, in 
general, the federal government must allow due process of law 
in all of its criminal proceedings: the trial must be open and 
speedy and in the state and district where the crime was com- 
mitted; the defendant must be informed of the nature and cause 
of the charge against him; the witnesses against him must be 
brought face to face with him; he may force, by compulsory pro- 
cess, the attendance of witnesses in his favor; he cannot be com- 
pelled to testify againr^t himself in any criminal case; and he has 
a right to have the assistance of counsel in his own behalf.* 

' Of course, Congress is not so limited in making laws applicable to act3 
which may be committed in the future. 

^ See below, chap. xxi. ^ Below, chap. xv. 

* It must be noted that these privileges in criminal matters are not ex- 
tended to cases arising in the land and naval forces or in the militia when in 
active service in tune of war or public danger. See below, chao. xvii. 

The Federal System of Government 151 

II. The limitations on the federal government ^ in behalf of 
property rights are relatively few in number, but they are funda- 
mental in character. The power to define property is under our 
system left to the state governments, subject to the one great re- 
striction that slavery and involuntary servitude, that i's, property 
in man, shall not exist. Congress has no power to define property 
except in the territories not organized into states.^ Moreover, 
the Constitution provides some explicit limitations on the power 
of the federal government to attack the property of private per- 
sons: Congress cannot impose duties on articles exported from 
any state; all direct taxes must be apportioned according to the 
population so that a majority of the people cannot shift the bur- 
den of direct taxation to the minority.^ Duties, imposts, and 
excises must be uniform, that is, must fall upon the same article 
with the same weight everywhere throughout the United States. 
In order to protect the taxpayer, it was provided in the Consti-| 
tution that revenue bills must originate in the House of Represen-; 
tatives, which is composed of members chosen directly by the 
. voters; but this provision is a dead letter in practice. The Con-] 
stitution also stipulates that no money shall be drawn from the 
treasury except under appropriations made by law; consequently 
the executive authority cannot on its own motion withdraw 
money from the pubHc treasury. 

It is not only by way of taxation that the federal government 
may approach private property. It enjoys the power of eminent 
domain; in other words, it may take private property for public 
use; but it must make just compensation to the owner. In de- 
termining what is just compensation, federal authorities must 
take into account the use for which the property in question is 
suitable and pay due regard to the existing business or wants of 
the community and such as may be reasonably expected in the 
immediate future. The proceedings in ascertaining the value of 
property taken for public use may be prosecuted before com- 
missioners or- special boards or the courts, with or without the 

^ For federal limitations on state governments in behalf of property, see 
below, chap. xxii. 

^ Congress may define property, however, in inventions and publications 
under its right to grant to authors and inventors special privileges with re- 
gard to their respective writings and discoveries. 

^ Excepting income taxes. Above, p. 71. 

152 American Government and Politics 

intervention of a jury as Congress may determine. All that is 
required is that the examination into the value of the property 
shall be conducted in some fair and just manner affording to the 
owner of the property in question an opportunity to present evi- 
dence as to its value and to be heard on that matter.* 

The Separation of Powers 

Second in importance to the doctrine that our government is 
limited by certain fundamental principles of law is the theory 
that the power conferred on the federal government must be dis- 
tributed among three distinct departments : legislative, executive, 
and judicial. This is a doctrine which publicists delight to ex- 
pound with great show of historical learning; it is a legal prin- 
ciple interpreted by the courts and applied to concrete cases like 
any other rule of the Constituti(!m; - it is a political slogan reiter- 
ated in Congress with great vehemence, especially in times when 
the President, expressing more accurately the living forces of the 
nation than do the Senators and Representatives, overshadows, 
in influence, the legislative branch of the government. 

According to the traditional account, this doctrine came into 
our law and practice from Montesquieu, whose treatise on the 
Spirit of the Laws was a veritable political text-book for our 
eighteenth-century statesmen, and it was derived by that dis- 
tinguished French author from his study of the English consti- 
tution. In point of fact, however, the doctrine, as far as Mon- 
tesquieu was concerned, was a notion which he acquired during a 
conflict between the judiciary and king in France in which he 
participated, and afterwards read into his study of the institu- 
tions of- England.^ As a principle of law and government, it is a 
part of that system of checks and balances and subdivisions of 
power by which statesmen have sought to prevent the develop- 
ment of that type of democracy that functions through simple 
legislative majorities.'* It is explained with great insight by 

^ Boom Co. V. Patterson, 98 U. S. R., 403; United States v, Jones, 109 
U. S. R., S13. 

^ See Readings, p. 138, for an important judicial decision on this point. 

' Hatschek, Englisches Staatsrecht, p. 24. 

* The place of the theory of separation of powers in the evolution of govern- 
ment is thus described by Treitschke in comparing Si^yes and Rotteckj 

The Federal System of Government 153 

Madison/ and thus eloquently defended by Webster: "The spirit 
of liberty ... is jealous of encroachments, jealous of power, jeal- 
ous of man. It demands checks; it seeks for guards; it insists on 
securities; it intrenches itself behind strong defences, and forti- 
fies itself with all possible care against the assaults of ambition and 

The doctrine is not expressly stated in a separate article in the 
federal Constitution, as in several state constitutions, but is thus 
embodied in the opening sentences of the three articles relating 
to the^ legislative, executive, and judicial power: "All legislative 
powers herein granted shall be vested in a Congress of the United 
States. . . . The executive power shall be vested in a President 
of the United States. . . . The judicial power . . . shall be 
vested in one Supreme Court and such inferior courts as Con- 
gress may from time to time ordain and establish." Thus, says 
Kent, the Constitution has effected the separation of powers 
" with great feUcity of execution, and in a way well calculated to 
preserve the equal balance of the government." 

A close examination of the Constitution, however, shows that 
the men who framed it were unable to maintain the purity of the 
principle when they came to prescribing the mode of exercising 
the powers of government in detail. Indeed, it was thoroughly 
understood by the framers that a complete separation of powers 
Was impossible, save in the realm of pure theory. 

The appointing power of the President is shared by the Senate; 
so is his treaty-making power. 0^ving to the amount and variety 
of executive business, the President must function through de- 
partmental offices, and these are created and to some extent con- 
trolled by Congress. On the other hand, the President shares 
in legislation through his veto power and his right to send as 
many messages as he chooses. Even the Supreme Court which 
is created by the Constitution lies at the mercy of Congress, for 
Congress may prescribe the number of the judges and fix their 
salaries subject to certain restrictions. It might, for instance, 

" Er setzt ihn Rotteck an die Seite: dieser habe die Lehre des Contrat Social 
durch einige Begriffe des monarchischen Staatsrechts verdiinnt, Sieyes das 
Feuer der Rousseauschen Volkssouveranitat mit dem Wasser der Montes- 
quieuschen Gewaltenteilung verschmolzen " Zweig, Die Lehre vom Pouvoif 
Constitiiant, p. ii6. 
^ Readings, p. 50. 

154 American Government and Politics 

fail to create the requisite lower and intermediate courts, reduce 
the number of judges, and through the confirming power of the 
Senate secure pUant judges; and thus overthrow the prestige 
of the judiciary or make it subservient to the legislative 

Furthermore, poHtical practice has shown that the influence of 
a department of the government depends not so much upon the 
legal authority which it enjoys as upon the great interests which 
function through it.^ For example, during the period of Recon- 
struction, Congress dominated the executive, overrode his exer- 
cise of the veto power, and through the Tenure of Office Act and 
other measures gathered into its hands almost the whole domain of 
federal authority.^ Recently the executive has come to the front 
as the more popular and influential branch of the federal govern- 
ment, although not without protests from Congress. 

As a legal doctrine appHed by the courts, the theory of the 
division of powers takes a more precise form. It was early ap- 
pUed in Hayburn's case relative to an act of Congress authorizing 
judges of the circuit courts to receive and hear certain claims to 
pensions, subject to the supervisory powers of the Secretary of 
War. The judges agreed that the power which Congress sought 
to confer was not judicial in its nature, and they therefore re- 
fused to serve in the capacity required by the law.^ The judges 
lor the district of North Carolina stated that the courts were n()t 
warranted in exercising "any power not in its nature judicial, or 
if judicial, not provided for upon the terms the Constitution re- 
quires." It must be said, however, that the occasions on which 
one branch of the federal government has by a law or order 
trespassed upon the domain of another branch have been few 
indeed, and the Supreme Court of the United States has been 
loath to hold acts of Congress invalid on the general theory of 
the separation of powers."^ 

The soundness of the theory of the separation of powers as a 
practical working scheme of government has been rather severely 
criticised recently by two eminent publicists. Professor Ford and 

* Readings, p. 265, for Senator Beveridge's view of executive influence. 
' Haines, Conflict over the Judicial Powers, pp. 165 ff. 
' Supreme Court decisions : 2 Dallas, 410. 

<See article by Professor T. R. Powell, Political Science Quarterly 
Vol. XXVII, pp. 215 ff. 

The Federal System of Government 155 

Professor Goodnow.^ They hold that the functions of govern- 
ment are only twofold, the formulation and execution of public 
will, — that is legislative and executive, — the judiciary being 
merely a branch of the law-enforcing power. In their view the 
separation of powers only creates friction in the government, 
divides responsibility, necessitates iron-bound party machinery 
outside the government to overcome the unwieldiness of the sys- 
tem, and altogether works for confusion and obscurity instead 
of simplicity and efficiency. They cite the EngHsh system, in 
which the legislative and executive powers are fused under the 
direction of the Cabinet, and the judiciary cannot pass on the 
constitutionality of laws. 

IrTresponse to this criticism. Professor Burgess contends: "I 
think that we are upon the right Hne, and that those nations 
which have developed parliamentary government are beginning 
to feel, as suffrage has become more extended, the necessity of 
greater executive independence. Parliamentary government, 
i.e., government in which the other departments are subject to 
legislative control, becomes intensely radical under universal 
suffrage, and will remain so until the character of the masses be- 
comes so perfect as to make the form of government very nearly 
a matter of indifference. There is no doubt that we sometimes 
feel embarrassment from a conflict of opinion between the inde- 
pendent executive and the legislature, but this embarrassment 
must generally result in the adoption of the more conservative 
course, which is far less dangerous than the course of radical ex- 
perimentation. . . . The feature par excellence of the American 
governmental system ig- the tonstitutional, independent, unpo- 
litical judiciary and the supremacy of the judiciary over the other 
departments in all cases where private rights are concerned." - 
This undoubtedly represents the prevaihng view of American 
pubUcists and statesmen, and is at all events the fundamental 
doctrine of our law. 

* Ford, Rise and Growth of American Politics; Goodnow, Politics and Ad' 

^ Political Science Quarterly, Vol. X, p. 420. 

156 American Government and Politics 

The Supremacy of Federal Law 

"This Constitution and the laws of the United States which 
shall be made in pursuance thereof, and all treaties made or which 
shall be made under the authority of the United States shall be 
the supreme law of the land." So runs the federal Constitution, 
— apparently as clear as a statement of law can be, — but it 
leaves unsettled the question as to the power that shall decide 
what laws of the United States are duly made in pursuance of the 
provisions of the Constitution and what state laws are in confhct 
with the superior law. This question involves the very nature 
of the federal Union, and for more than half a century the famous 
controversy over states' rights raged around it. Happily, how- 
ever, it is now definitely settled, and its leading features are of 
historical interest only.^ Federal law is supreme ; and, in the last 
! instance, the Supreme Court of the United States is the final in- 
I terpreter of that law. The decisions of this Court are binding 
/ on Congress, the states, and private persons. 

The application of this principle may be illustrated by two 
cases. Congress provided by law that when any civil suit or 
criminal prosecution was begun against a federal revenue officer 
in any court of a state,^ the case could be immediately removed 
into the federal courts. A federal revenue officer, in the discharge 
of his duty, killed a man in Tennessee, and his case, against the 
protest of the state, was removed to a federal court in due form. 
In discussing the constitutionality of this law, Mr. Justice Strong 
said of the federal government: — 

"It can act only through its officers and agents, and they must 
act within the states. If, when thus acting, and within the scope 
of their authority, these officers can be arrested and brought to 
trial in a state court for an alleged offence against the law of the 
state, yet warranted by the federal authority they possess, and 
if the general government is powerless to interfere at once for 
their protection, — if their protection must be left to the action 
of the state courts, — the operations of the general government 
may at any time be arrested at the will of one of its members. 
The legislature of a state may be unfriendly. It may affix pen- 

* Readings, p. 140. ' On account of an official act, of course. 

The Federal System of Government 157 

allies to acts done under the immediate direction of the national 
government and in obedience to its laws. It may deny the au- 
thority conferred by those laws. The state court may administer 
not only the laws of the state, but equally federal law, in such a 
manner as to paralyze the operations of the government. . . . 
We do not think such an element of weakness is to be found in the 
Constitution. ... No state government can exclude it from 
the exercise of any authority conferred upon it by the Constitu- 
tion, obstruct its authorized officers against its will, or withhold 
from it, for a moment, the cognizance of any subject which that 
instrument has committed to it." ^ 

Another phase of federal supremacy is illustrated by the case 
involving the constitutionality of a law passed in New York fixing 
the hours for workmen in bakeries. The owner of a bakery con- 
tended that this law violated the principles of the federal Con- 
stitution, and on appeal to the Supreme Court his contention was 
upheld. Thus the state law was set aside by the superior force 
of the federal Constitution.^ 

Interstate Relations 

The Constitution secures to the citizens of each state the privi- 
leges and immunities of the citizens in the several states, and 
the federal judiciary defines and enforces them by proper pro- 
cesses. This means that there are certain great legal rights^ 
necessary to free migration throughout the American empire, 
to the successful conduct of business and industry, and to the 
enjoyment of property, which no state may take away from 
a citizen of another commonwealth coming within its borders. 
It means also that no state may confer civil rights on its own citi- 
zens and at the same time withhold those rights from citizens 
of other states.^ It does not mean, however, that A. of Illinois, 
on moving into Indiana, may claim all privileges which he 

^ Tennessee v. Davis, loo U. S. R., 257. 

"^Readings, p. 617; Willoughby, The American Constitutional System, 
chaps, v-x. 

^ Readings, p. 146, for judicial interpretation of the rights; see also the lucid 
discussion of the question in Willoughby, American Constitutional System, 
pp. 278 ff. 

■* Civil rights — rights of person and property — should always be distin- 
guished from political rights — the right to vote, hold office, etc. 

158 American Government and Politics 

enjoyed in the former state; he is, on the contrary, entitled only 
to the rights enjoyed by citizens of the latter state. For example, 

A. enjoys in Illinois the right to sell cigarettes subject to certain 
restrictions; in Indiana the sale of cigarettes is forbidden by law; 
consequently A. cannot claim there the privilege which he had 
in the former state. 

A concrete illustration is afforded by the case of Ward?;. 
Maryland.^ By a law passed in 1868 the Maryland legislature 
provided that persons not permanent residents in the state must 
take out licenses before offering for sale, within certain districts, 
goods not manufactured within that commonwealth. Ward, the 
plaintiff in the case, was a resident of New Jersey, and, with- 
out procuring a license, he sold within the prohibited district 
goods not manufactured in Maryland. He was accordingly 
arrested for violating the law, but set up the contention that the 
law of Maryland was in contravention of the federal Constitution. 
When the case came before the Supreme Court of the United 
States, it was held that the statute in question was "repugnant" 
to the second section of the fourth article of the Constitution, 
which provides that the citizens of each state shall be entitled 
to all privileges and immunities of citizens in the several states." ^ 

To faciUtate intercourse among the several states, especially 
in the transaction of legal business, the Constitution provides 
that full faith and credit shall be given in each state to the public 
acts, records, and judicial proceedings of every other state. 
Congress has provided by law the form in which such acts and 
proceedings shall be authenticated, and has ordered that, when 
so authenticated, "such faith and credit shall be given them 
in-every court within the United States as they have by law and 
usage in the courts of the state from which they are taken." 
This provision works out in the following way. A. brings suit 
against B. in a court in Ohio, of which state they are both resi- 
dents; and, after trial, the Ohio court decides that B. owes A. 
$1000 and gives judgment accordingly. B. thereupon moves 
into New York, taking his property along, before it can be at- 
tached for the debt. When A. in quest of his money goes after 

B. into New York, it is not necessary that the case should be 

' Ward V. Maryland, 12 Wallace, 418. 

^ Willoughby, op. cit., pp. 2S0-281; Readings, p. 146. 

The Federal System of Government 159 

tried again in order to get the proper process to recover his 
money. All he has to do is to show in the New York court of 
proper jurisdiction the authenticated judgment of the Ohio 
court. B. may contend that the records are not authentic, or 
the court that rendered the first judgment did not have juris- 
diction, but he cannot secure a reopening of the case on its merits.^ 

The extradition of criminals, long an international practice 
based on treaty stipulations between independent countries, was 
carried over into the federal Constitution by the provision that 
any person charged with crime, fleeing from justice and found in 
another state, shall be delivered up on demand of the executive 
authority of the state from which he fled to be removed for trial 
in the state having jurisdiction of the crime. Congress has 
amplified the constitutional provision by an act declaring that 
on the demand from the proper authority, '4t shall be the duty 
of the executive authority of the state" to cause the fugitive to 
be seized and handed over to the agent of the state making the 
requisition. The words "it shall be the duty" were interpreted 
by Chief Justice Taney as merely declaratory of a moral duty, 
not as mandatory and compulsory. "The act," continued the 
Justice, "does not provide any means to compel the execution 
of this duty, nor inflict any punishment for neglect or refusal 
on the part of the executive of the state; nor is there any clause 
or provision in the Constitution which arms the government of 
the United States with this power." The governor of a state is 
therefore under a moral obligation to surrender criminals, but he 
may use his discretion in the matter.^ 

The exact process followed in the rendition of criminals is 
prescribed in an Act of Congress. In addition most states have 
statutes providing that an accused person can be arrested upon 
information of the charge being received, and held until the 
official demand is made. Let us suppose that A. commits 
murder in Ohio and escapes into Indiana. As soon as his where- 
abouts are discovered, the authorities of the place where the 
offence was committed will request his arrest, and he will be taken 
into custody by the police or the sheriff of the locaHty where he 
is found. A regular charge wiU then be lodged against him in 

^ Willoughby, op. cit., pp. 273 ff. 

^ See Readings, p. 148, £or a practical example. 

i6o American Government and Politics 

Ohio, if this has not been already done, either by an indictment 
by grand jury or an affidavit made before a magistrate. There- 
upon the governor of Ohio will issue to the governor of Indiana a 
formal demand for the surrender of A., appending to it a certified 
copy of the indictment or affidavit. If the governor of Indiana 
finds that the papers are regular and that A. is a fugitive from 
Ohio and was in that state at the time that the alleged murder 
was committed, he will issue an order for his surrender to the 
agent appointed for that purpose by the governor of Ohio. A. 
will then be taken to Ohio and tried for the murder.^ 

Citizenship and the Suffrage 

In international law, the term "citizenship" means member- 
ship in a nation, but at the time of the formation of our federal 
Constitution it had received no very definite connotation either 
in law or popular practice.^ The Constitution, therefore, 
speaks of "citizens of the United States" and "citizens of the 
states"; but a strict usage of the term would require us to speak 
of citizens of the United States and residents or inhabitants of the 
states, although this usage might popularly be regarded as a 
species of pedantry. The state, however, has no power to con- 
fer or withhold citizenship, although it may, as will be seen 
later, confer many civil and political rights on foreigners. The 
exclusive right to admit aliens to citizenship is given to the 
federal government by the clause authorizing Congress to make 
uniform rules of naturalization. 

Citizenship in the United States may be acquired by birth or 
by naturalization. All persons born in the United States and not 
subject to any foreign power, excluding Indians not taxed, are 
ipso facto citizens of the United States. This is called citizen- 
ship by reason of birth in a particular place, i.e., jure soli. To 
secure civic rights to children born to citizens of the United 
States residing abroad. Congress has provided by law that all 
children born out of the Hmits and jurisdiction of the United 
States, whose lathers are at the time of their birth citizens thereof, 
shall be deemed citizens of the United States. The rights of 

* Reference: J. B. Moore, Extradition and Interstate Rendition. 
' Thayer, Cases on Constitutional Law, Vol. I, p. 459, note. 

The Federal System of Government i6i 

citizensliip, however, do not descend to children whose fathers 
never resided in the United States.^ 

Foreigners may be admitted to citizenship by naturaUzation, 
either collectively or individually. Collective naturaUzation 
may occur when a foreign territory and its inhabitants are trans- 
ferred to the United States. The manner of this naturalization 
is generally stipulated in the terms of the treaty of transfer. 
For example, the treaty with France ceding the Louisiana terri- 
tory provided that the inhabitants of the territory should be 
incorporated into the Union of the United States and admitted 
as soon as possible, according to the principles of the federal 
Constitution, to the enjoyment of all the rights, advantages, and 
immunities of citizens of the United States.^ 

The process of naturalizing individuals is subject, in all of its 
details, to the laws of Congress, and it is committed to the charge 
of certain specified courts." Naturalization can be effected only 
in a circuit or district court of the United States, or a district or 
supreme court of a territory, or a court of record of a state hav- 
ing law or equity jurisdiction in cases in which the amount in 
controversy is unhmited, and having a seal and a clerk.* Only 
white persons and persons of African descent may be natu- 
rahzed; the Chinese are excluded expressly by law, and this ex- 
clusion has been extended to the Japanese. An alien woman 
who marries an American citizen by that act becomes an Ameri- 
can citizen. An American woman who marries an alien loses 
her citizenship. 

The process of naturaUzation faUs into three stages : (i) At 
least two years prior to his admission, the alien (who must be 
at least eighteen years of age) makes a declaration on oath before 
the clerk of a court stating his intention to become a citizen 
and renouncing his allegiance to any foreign power. (2) Not 
less than two years nor more than seven years after this declara- 
tion (and after five years' residence in the United States), the 
alien must file in his own handwriting his petition for citizen- 
ship, stating that he is not opposed to organized govern- 
ment, is not a polygamist, intends to become a citizen, and 

^ Readings, p. 150. 

2 See Moore, Digest of International Law, Vol. Ill, p. 276. 

3 Under the general supervision of the Bureau of Naturalization in the 
Department of Labor at Washington. 


1 62 American Government and Politics 

renounces his allegiance to his former country.. This petition 
must be verified by the affidavits of two citizens certifying to the 
residence and good moral character of the apphcant.^ (3) After 
ninety days have elapsed from the date of filing the petition, 
the appUcation is heard by the court. The appUcant renews 
his adherence to the declarations made in the petition, and is 
then examined by the court. This examination may be formal 
or thorough and searching, according to the standards of the 
judge conducting the final hearing. Examining judges are re- 
quired to satisfy themselves that all the provisions of the law have 
been compUed with, that the appHcant has behaved as a man of 
good moral character, is attached to the principles of the Con- 
stitution of the United States, and well disposed to the good order 
and happiness of the same. When the court is duly satisfied 
the certificate of naturalization is issued. A large power of dis- 
crimination is thus conferred upon the court, and there are some 
instances of its being abused by judges personally opposed to the 
political principles expressed by the alien applicants. 

The original constitution contained no positive provisions 
relating to the right to vote, but left the question to the states for 
solution by stipulating that voters for members of the House of 
Representatives' should have the qualifications requisite for 
electors of the most numerous branch of the state legislature, 
and at the same time permitting the state legislatures to decide 
how presidential electors should be chosen.^ Accordingly there 
does not exist in the United States, as in Germany, a national 
suffrage distinct from the suffrage of the respective states. Thus 
matters stood until the close of the Civil War, when the Repub- 
lican party sought to secure its supremacy and enable the newly 
emancipated negro to protect himself against his former master 
by forcing the adoption of the Fourteenth and Fifteenth amend- 

The effect of these provisions, however, was not to create one 
uniform suffrage throughout the Union, but to leave the regula- 
tion of the matter to the states, subject to the provision that 

* An applicant must reside at least a year in the state or territory in which 
he makes application. If he landed after June 29, 1906, he must present a 
certificate from the Department of Labor showing date of arrival, and the 
declaration of intention must be filed with the petition. 

' Senators of the United States were to be chosen by the state legislatures 

The Federal System of Government 163 

'when the right to vote at any election for the choice of electors 
for President and Vice-President of the United States, Represen- 
tatives in Congress, the executive and judicial officers of a state 
or the members of the legislature thereof, is denied to any of 
the male inhabitants of such states, being twenty-one years of 
age, and citizens of the United States, or in any way abridged, 
except for participation in rebelUon, or other crime, the basis of 
representation therein shall be reduced in the proportion which 
the number of such male citizens shall bear to the whole number 
of male citizens twenty-one years of age in such states"; and to 
the further provision that the right of citizens to vote shall not be 
denied or abridged by the United States or by any state on 
account of race, color, or pre\dous condition of servitude. 

Notwithstanding these provisions, a uniform manhood suffrage 
was not estabUshed throughout the United States. In hfteen 
states, women are admitted to full suffrage ; in others tax, edu- 
cational, property, and other qualifications are imposed ; and in 
a few states we have the peculiar anomaly of foreigners, who 
have announced their intention of becoming citizens, being 
permitted to vote for state and even national officers.^ 

The various restrictions operate in such a manner as to 
exclude thousands of adult male citizens, and they are by no 
means confined to the South. Massachusetts with an educa- 
tional test, or Pennsylvania with a tax qualification, is legally 
quite as liable to a reduction of representation as any southern 
state with a property qualification in its constitution. Never- 
theless, no serious attempt has yet been made to secure an en- 
forcement of the Fourteenth Amendment. 

The negative character of the former suffrage amendments to 
the federal Constitution was adopted by Congress in 191 9 when 
it passed the Nineteenth Amendment providing that no citizen 
shall be denied the right to vote on account of sex. W^en this 
amendment is ratified, it will not in itseK establish national 
woman suffrage, but will forbid the states to withhold the vote 
from women. 

1 See Readings, p. 143, and below, chap. xxii. 

164. American Government and Politics 

The Supremacy of the Judiciary ^ 

The crowning feature of the federal system is the supremacy 
of the judiciary over all other branches of government in matters 
relating to the rights of persons and property. In no European 
nation, federal or centralized in form of government, is the high 
authority of declaring null and void the acts of other departments 
conferred upon a judicial tribunal. This judicial supremacy, 
says Professor Burgess, is "the most momentous product of mod- 
ern pohtical science. Upon it far more than upon anything 
else depends the permanent existence of republican government; 
for elective government must be party government — majority 
government; and unless the domain of individual Uberty is pro- 
tected by an independent, unpolitical department, such govern- 
ment degenerates into party absolutism and then into Caesar- 
ism." 2 

It is the Supreme Court, therefore, that stands as the great 
defender of private property against the attempts of popular 
legislatures to enroach upon its fundamental privileges. This 
fact has been so clearly and cogently demonstrated by President 
Hadley that his statements deserve quotation at length. The 
theoretical position of property-holders, he says, — " the sum of 
the conditions which affect their standing for the long future and 
not for the immediate present — is far stronger in the United 
States [than in other countries]. The general status of the 
property-owner under the law cannot be changed by the action 
of the legislature, or the executive, or the people of a state voting 
at the polls, or all three put together. It cannot be changed 
without either a consensus of opinion among the judges, which 
should lead them to retrace their old views, or an amendment of 
the Constitution of the United States by the slow and cumber- 
some machinery provided for that purpose, or, last, — and I hope 
most improbable, — a revolution. 

" When it is said, as it commonly is, that the fundamental 
division of powers in the modern State is into legislative, execu- 
tive, and judicial, the student of American institutions may fairly 
note an exception. The fundamental division of powers in the 

* See below, chap. xv. 

* Political Science Quarterly, Vol. X, p. 422. 

The Federal System of Government 165 

Constitution of the United States is between voters on the one 
hand and property-owners on the other. The forces of democ- 
racy on one side, divided between the executive and the legisla- 
ture, are set over against the forces of property on the other side, 
with the judiciary as arbiter between them; the Constitution 
itself not only forbidding the legislature and executive to trench 
upon the rights of property, but compelHng the judiciary to 
define and uphold those rights in a manner provided by the Con- 
stitution itself. 

" This theory of American poUtics has not often been stated. 
But it has been universally acted upon. One reason why it has 
not been more frequently stated is that it has been acted upon 
so universally that no American of earUer generations ever 
thought it necessary to state it. It has had the most funda- 
mental and far-reaching effects upon the policy of the country. 
To mention but one thing among many, it has allowed the experi- 
ment of universal suffrage to be tried under conditions essen- 
tially different from those which led to its ruin in Athens or in 
Rome. The voter was omnipotent — within a hmited area. 
He could make what laws he pleased, as long as those laws did 
not trench upon property right. He could elect what officers 
he pleased, as long as those officers did not try to do certain 
duties confided by the Constitution to the property-holders." ^ 

* The Independent, April 16, 1908. 



The framers of the federal Constitution intended to remove 
the office of chief magistrate of the RepubUc as far as possible 
from the passions and interests of the masses, and accordingly 
they provided for his election by a small body of electors chosen 
as the legislatures of the several states might determine. The 
original design has been upset, however, by the rise of pohtical 
parties. It is, therefore, necessary to preface a discussion of 
the legal provisions regarding the election of the President 
by a consideration of the extra-legal organization which 
selects the candidate for whom the electors of each party are 
morally bound to vote. 

Preliminaries to the National Convention 

The national convention assembles on a call issued by the 
national committee. A meeting of this committee is held usually 
five or six months before the time for making presidential nomi- 
nations. At this preliminary meeting, summoned by the call 
of the chairman, the place at which the coming convention is to 
be held is selected after the representatives of various cities have 
presented their claims, and the date for the opening of the great 
party assembly is fixed. When the national committee has 
thus decided upon the place and date of the convention, it issues 
a call to the party members and supporters inviting them to 
choose delegates and alternates, so that the party conference 
may be a representative body. 

On the eve of the convention, the national committee assem- 
bles to complete preparations. At this session, the programme 
of proceedings is determined upon and the temporary roll of 
delegates is made up from the returns from the proper ofl[icers in 
the states and districts. 

/ The national convention is composed of delegates from the 
/states and territories. In the Democratic convention each state 
( i66 

The Nomination and Election of the President 167 

is allowed two delegates for each of its Senators and Representa- 
tives in the Congress of the United States. For example, New 
York has two Senators and forty-three Representatives — forty- 
five in all — and it is entitled to ninety members in the Demo- 
cratic convention. The four delegates corresponding to the 
representation of the state in the United States Senate are known 
as delegates-at-large, and the others are called district delegates. 

It should be noted that this rule takes no account of the 
strength of the party in the various sections of the country. 
It was formerly applied by the Republican party with the result 
that a southern state having only a handful of Republican voters 
would have the same strength in the party convention as a solid 
Republican state of the same population in the North. The use 
of the federal offices in the South by RepubUcan Presidents to 
control party conventions led to a reform in 1914. The Re- 
publican convention now consists of four delegates-at-large from 
each state and from each congressional district at least one dele- 
gate with one additional delegate if the district polls 7500 Re- 
pubhcan votes or more. 

In prescribing the methods of electing delegates, the calls of 
tlie Democratic and Republican parties differ fundamentally. 
The former regards the state as the unit of representation, but 
will in the future require the choice of the delegates at primaries. 
The Republican party, on the other hand, definitely stipulates 
that the delegates-at-large shall be chosen at the state conven- 
tion and the other delegates at congressional district conven- 
tions. Special provisions are made for the territories, and for the 
states that prescribe nomination by direct primaries. 

In addition to the extensive choice of delegates to the con- 
ventions by direct primaries, a new feature was introduced 
into the campaign of 191 2 in a few states, including Massachu- 
setts, New Jersey, Illinois, Nebraska, Oregon, and Wisconsin. 
In those states the voters of each party were allowed to express 
at the primaries a preference as to the several aspirants for the 
presidential nomination, and the delegates (chosen by direct 
vote) were instructed to record at their respective conventions 
the preferences of their constituents. 

The purpose of the national convention is threefold. It 
formulates the principles of the party into a platform on which 
the appeal is made to the voters during the ensuing campaign. 

1 68 American Government and Politics 

It nominates candidates for the presidency and the vice-presi- 
dency, and appoints committees to notify both nominees. 
Finally it organizes a new national committee charged with 
carrying on the campaign and acting for the party for four years 
— until the next national convention is held. 

The National Convention at Work 

The convention usually assembles in some enormous building 
where the thousand delegates, and perhaps eight or ten thousand 
spectators, are seated. Each delegation is arranged around the 
banner of its state, and has a chairman to direct its part in the 
convention. Some of the more important delegations are 
accompanied by brass bands, and often carry curious symbols 
and transparencies. In the audience are usually gathered the 
most active pohticians who are not serving as delegates, enthu- 
siastic partisans from all over the country, and interested visitors 
attracted by the spectacular affair. It is indeed a cool-headed 
pohtician who is not swept off his feet by the excitement of the 
hour. Bands play popular airs; party heroes are greeted with 
prolonged cheering as they appear on the scene; wire-pullers 
rush here and there among the delegations making and extract- 
ing promises; all are apparently intoxicated with enthusiasm 
and boisterous party zeal. 

The convention is called to order by the chairman of the 
national committee,^ and before any business is transacted, prayer 
is usually offered. Clerg^^men from different congregations are 
chosen for the several sessions, so as to avoid offending religious 
susceptibiHties. The first business is the reading of the call for 
the national convention by the secretary of the committee, and 
the chairman then puts in nomination the temporary officers, 
who have been selected by the committee before the meeting. 
Usually these nominations are accepted without question, for the 
business of the temporary organization is largely formal. The 
temporary chairman, it is true, makes an address appropriate 
to the occasion, which is often regarded as the "keynote" to 
the proceedings, but he is not called upon to make any important 
decisions from the chair which may affect either the platform of 

* The order of business, of course, varies from time to time in details, 
but this general description is substantially true of all conventions. 

The Nomination and Election of the President i6g 

the party or its nominations. When the temporary officers are 
duly installed and the speech of the chairman is delivered, the 
rules of the previous convention are adopted until the perma- 
nent organization is effected. The first day's session is then 
concluded by calling the roll of the states and territories, each 
one of which appoints one member for each of four great commit- 
tees of the convention: the committee on credentials, the com- 
mittee on permanent organization, the committee on rules and 
order of business, and the committee on resolutions or platform. 

After the second session of the convention is called to order 
by the temporary chairman, the reports of the various commit- 
tees are heard, not necessarily in any fixed order. The committee 
on credentials is charged with the important work of deciding 
questions of contested seats. All notices of contests between 
delegations are filed in advance with the national committee 
which makes up the temporary roll. These documents relative 
to the several disputes are passed on to the credentials committee, 
which holds meetings and prepares reports for the convention. 
Sometimes these contests are very exciting; for the policy of 
the party on national issues and the fate of candidates may be 
decided by the admission or rejection of certain delegations. 
Generally speaking, however, the report of the majority of the 
committee on credentials is accepted by the convention.^ 

The next important report is that of the committee on perma- 
nent organization, which names the permanent chairman, the 
secretary, and other officers of the convention. This report is 
also generally approved without debate, although, of course, 
the convention may, if it sees fit, refuse to accept the nom- 
inees of the committee. The permanent chairman is duly 
installed, makes a long speech, and is presented with a gavel. 
The rules, under which he controls the assembly, are reported 
by the committee on rules, and are, in principle, those of the 
House of Representatives with some modifications. The chair- 
man is constantly called upon to decide points of order of a highly 
technical nature; he must prevent the convention, which some- 
times bursts out into storms of applause lasting more than an 
hour, from degenerating entirely into an uncontrolled mob; 

' It sometimes happens that, to avoid open rupture, both delegations frona 
a stute are admitted — each member having one-half of a vote. 

t*jo American Government and Politics 

he is often compelled to choose from among five or ten speakers 
trying to get the floor at the same time; and it is, therefore, im- 
portant that he should be master of the rules of procedure, and 
capable of prompt and firm decision. 

On the second or third day, the convention is ready for the 
leport of the committee on resolutions, which is charged with 
drafting the platform. This committee begins its sessions im- 
mediately after its appointment, and usually agrees on a unani- 
mous report, but sometimes there is a minority report. The 
platform is not often a statement of the particular things which 
the party proposes to do if it gets into power; it is rather a col- 
lection of nice generalities which will serve to create good feeling 
and unite all sections around the party standard. It usually 
contains, among other things, references to the great history of 
the party, interspersed with the names of party leaders, and 
denunciations of the policies and tactics of the opposite party. 
Frequently a platform will refer to matters that do not concern 
American politics primarily, such as the persecution of the Jews 
in Russia or the struggle of Ireland for home rule. Such resolu- 
tions do not imply that the government can or will do anytliing 
positive on such matters, but they serve to appeal to the imagi- 
nation and sympathies of certain classes of voters. The report 
of the committee on resolutions seldom meets opposition in the 
convention, for care is taken by the committee to placate all 
elements. It is only when there is some very contentious matter, 
such as the free silver issue in 1896, that there is likely to be a 
divided report from the committee or any debate on the floor. 

After the adoption of the platform, the new national committee 
is chosen.^ 

About the third or fourth day, the chairman announces that 
the next order of business is the caUing of the roll of the states for 
the presentation of names of the candidates for President of the 
United States, and the roll is called in alphabetical order begin- 
ning with Alabama. If a state has no candidate to present, it 
may defer to another further down on the list. When Ala- 
bama is called upon in the Republican convention, the chair- 
man of the delegation will say something to this effect: "The 
State of Alabama requests the privilege and distinguished honor 

1 See below, p. 173. 

The Nomination and Election of the President 171 

of yielding its place upon the roll to the State of New York." 
A representative of the state which is thus named thereupon 
places a candidate in nomination, in a speech full of high- 
sounding phrases and lofty sentiments.^ The first speech may 
be followed by speeches seconding tJ:ie nomination, from the 
representatives of various delegations scattered over the House, 
if the chairman sees fit to recognize them. The nominations 
may be closed without calling the full roll of the states, or the 
calling of the roll may be resumed and each state heard from, 
as it is reached in regular order. 

When the nominations are made, the vote is taken by calling 
the roll of the delegations, and the chairman of each announces 
the vote of his group. According to the theory of the Republican 
party, each member of a delegation may cast his vote as he 
pleases, although as a matter of fact the delegations are often 
instructed by the conventions of the states from which they come. 
The Democratic party, however, does not recognize the right of 
the individual to vote as he pleases in the convention. It not 
only permits the state convention to instruct its delegates, but 
also authorizes the majority in each delegation to determine 
how the entire vote shall be cast — and cast that vote as a unit.^ 
For example, the state of New York has ninety representatives 
in the national convention, and if forty-six of the delegates 
agree on the same candidate, the vote of the entire number is 
cast for him, when the unit rule is applied. 

This practice, which is called the application of the "unit 
rule," is justified by Democratic leaders on the ground that the 
state, not the congressional district, is the unit of representation ; 
and that greater weight is given to the delegation of a state, in 
negotiating with the other delegations, by reason of the fact that 
it can cast the entire number of votes. That is, on account of 
his ability to deliver the entire vote of the New York delegation, 
the leader of that state, for example, is able to demand more con- 
sideration in the distribution of poUtical favors than if he could 
only deliver a portion of the vote. The unit rule, therefore, 
gives more power to the organization of the state than the system 
of allowing divided delegations. It should be noted, however. 

^ See Readings y p. 164, for an extract from a nominating speech. 
2 The preference primary changes this rule. Above, p. 167. 

172 American Government and Politics 

that the unit rule is not applied to all state delegations in the 
Democratic convention. It is left to the states concerned to 
adopt or reject the principles as they see fit ; but if the state does 
not act in the matter, the delegates may vote as they please. 

When the roll of all the states and territories has been called, 
and the vote of each one has been registered by the tally clerks, 
the total result is announced. If any nominee in the Republican 
convention receives a majority of all the votes cast, he is there- 
upon declared the candidate of the party for the presidency of 
the United States. In the Democratic convention, however, it 
is an inflexible rule that the successful nominee must receive a 
majority of two-thirds. This practice has long been associated 
with the unit rule and in a way offsets the effects of that rule. 
If no nominee receives the requisite majority on the first ballot, 
the process is repeated until some one secures the proper num- 
ber of votes. It is the practice of both parties, immediately 
after the nomination of the presidential candidate, to nominate 
the candidate for Vice-President in the same manner. 

When the convention has chosen its candidates, a separate 
committee is appointed to convey to each of them a formal noti- 
fication. Shortly afterward the notification committee waits 
upon the candidate, and through an official spokesman announces 
the will of the party. The candidate thereupon replies in a 
lengthy address, and sometimes follows this by a special letter 
of acceptance. The acceptance speech is often an important 
campaign document for the reason that the candidate may 
interpret the platform of his party in his own way, going even so 
far as to modify the spirit, if not the letter, of that pronuncia- 
mento. For example, Mr. Taft in his acceptance speech of 1908 
elaborated at length the Chicago platform and committed himself 
personally to many doctrines which had not been specifically 
endorsed at the convention which nominated him. 

The National Committee 

The great work of directing the campaign is intrusted to the 
national committee,^ composed, in the RepubHcan and Demo- 
cratic parties, of one member from each state and territory 

* In practice, the burden falls upon the ofl&cers and an executive committee 
of the national committee. 

The Nomination and Election of the President 173 

chosen by the respective delegations to the national convention, 
and holding office for four years, that is, from one national con- 
vention to the next. The selection of this committee, as we have 
seen, is a part of the regular convention proceedings. Usually 
on the second or third day, after the adoption of the platform 
and before the nomination of the candidates, the permanent 
chairman of the national convention announces that the next 
order of business is the calhng of the roll of the states and terri- 
tories for the presentation of names of persons chosen to serve 
on the national committee. In common practice the secretary 
of the convention has in advance a full report of the names of 
the members chosen from each state and territory, and this 
report being read to the convention is accepted as it stands, 
tmless objections are made from the floor. The national con- 
';ention, as such, therefore, does not exercise any control over the 
choice of members of the national committee. In 191 2, the 
Democratic convention ordered the election of the future com- 
mitteeman in each state at party primaries. 

The principal officers of the national committee are the chair- 
man, secretary, and treasurer. The chairman, who is by far the 
most important poUtical leader in the national organization, is 
the choice of the candidate for President. The wishes of the 
committee and other leaders of the party, are, of course, taken 
into consideration. This power of selecting the chairman is very 
important to the presidential nominee, because the immediate 
task of that officer is to conduct the presidential campaign, and 
it is essential that he and the candidate work together in complete 
harmony. The chairman is not necessarily a member of the 
original committee, for it may so happen that no prominent 
and energetic organizer has been chosen by the state and terri- 
torial delegations. The secretary and treasurer are sometimes 
appointed by the chairman, and sometimes by the committee. 
The treasurer is often not a rnember of the committee; owing to 
his important position as collector of campaign funds, he is se- 
lected for his financial ability and influence from among the most 
available members of the party. Of course, it is impossible here 
to lay down any absolute rules in regard to the way in which 
officials of the committee are chosen, for the choice is not deter- 
mined under any written or unwritten law, but is left for adjust- 
ment according to circumstances. 

174 American Government and Politics 

The National Campaign 

Immediately after the adjournment of the convention, the 
newly elected committee meets and proceeds with the prepara- 
tions for the campaign. The leadership in this great national 
contest is taken of course by the chairman/ who disburses enor- 
mous sums of money collected by the treasurer, directs the huge 
army of speakers, organizers, and publicity agents scattered over 
the Union, and as the day of election approaches surveys the 
whole field with the eye of an experienced general, discovering 
weak places in his battle array, hurrying up reenforcements to 
the doubtful states, and, perhaps, pouring an immense sum of 
money into districts where large numbers of wavering voters may 
be brought into line. The outcome of the campaign, therefore, 
depends in a great measure upon the generalship of the chairman 
of the national committee. 

Quite as important as the general who leads the army in the 
field, is the organizer of the department v/hich furnishes the sinews 
of war. Consequently, in a political campaign, the treasurer of 
the national committee takes a prominent place by the side of 
the chairman. It is his business to discover innumerable ways 
of raising the miUion dollars or more required to wage the great 
political contest.^ In this work he is, of course, greatly assisted 
by the issues of the campaign; for, when large business interests 
are liable to be affected by the outcome of the election, he can 
appeal with special force to those whose fortunes are linked to 
the fate of his party. It is, therefore, apparent why the treasurer 
of the national committee should be a financier of pecuhar genius, 
and a man influential in wealthy circles; and for this reason an 
eminent business man is usually chosen to fill this high post. 

The campaign of 1888 affords a remarkable example of the 
intimate relation between the finances of a party and the in- 
terests affected by the outcome of the election. Moreover, a very 
frank statement made by the treasurer for that year, Mr. Wana- 
maker", gives us an insight into his reasons for undertaking the 
management of Republican finances, and the methods which he 

* Readings^ p. 169. 

' According to official statements, the Republican national committee 
raised $1^35,368.27 in 1908 and the Democratic committee $620,150. 

The Nomination and Election of the President 175 

employed.^ Mr. Wanamaker, accorcjing to his own account, 
had had large experience in raising money for the Young Men's 
Christian Association and other similar organizations; and ac- 
cordingly he knew how to bring arguments to bear upon large- 
minded men. The strong pronunciamento in favor of free trade, 
made by Mr. Cleveland in a message to Congress, had frightened 
business men engaged in industries fostered by the protective 
tariff, and of this situation Mr. Wanamaker was quick to take 
advantage. He said it was his custom to address business men 
as follows: "How much would you pay for insurance upon your 
business? If you w^re confronted Vvith from one year to three 
years of general depression by a change in our revenue and pro- 
tective measures affecting our manufactures, wages, and good 
times, what would you pay to be insured for a better year? " The 
argument was pecuUarly effective, for money was raised in such 
large amounts that the Democrats were completely outwitted; 
and when election was over, the national committee, according 
to Mr. Wanamaker's statement, was ready to make him almost 
any offer. He chose the office of Postmaster- General, and en- 
tered the Cabinet of the President whom he had done so much to 

A second instance of powerful support given by financial in- 
terests to a poUtical party is afforded by the campaign of 1896, 
when the question of free silver was the leading issue. Bankers, 
men of finance, creditors, and business men generally, believed 
that the adoption of free coinage of silver at the ratio of 16 to i 
would be absolutely disastrous to them. Accordingly, they 
ralUed to the support of the Republican party. On March 23, 
1896, before the conventions of the two parties met, the American 
Bankers' Association sent out a letter to the bankers of the United 
States, declaring unequivocally in favor of the maintenance of the 
existing gold standard, and recommending to all customers of 
banks the exercise of all their influence, as citizens in the various 
states, to secure the selection of delegates to the political conven- 
tions of both parties, who would stand squarely in favor of the 
gold standard. 

After the conventions were held, and the two great parties were 
divided on the money question, a committee was appointed to 

» The Forum, Vol. XIV, pp. 29 ff. 

176 American Government and Politics 

solicit furxds in aid of the campaign for the Republicans. In a 
circular letter sent out in September, this committee stated that 
the banks in New York and some other places had been contrib- 
uting on a basis of one-fourth of one per cent of their capital and 
surplus; and urged other banks to follow this example, on the 
ground that it was proper and legitimate for the banks to make 
political contributions in a campaign so vital to all financial 

The actual methods employed by the parties in influencing 
voters vary of course from time to time; new expedients for 
attracting the attention of the people are constantly being de- 
vised. Nevertheless, we can draw from a study of the methods 
of recent campaigns certain general practices which the parties 
adopt to accomplish their ends. 

The first important step in the campaign is the location of the 
party headquarters from which the contest is to be directed. 
The strategic value of putting the centre of the campaign near or 
in the doubtful states was recognized by the Republicans in 1896, 
when they selected Chicago as the point from which the militant 
forces in the field were controlled. It is not always the rule, 
however, to maintain one centre, for in the campaign of 1900 
the RepubUcans divided their national headquarters into two 
branches — one at New York and one at Chicago. 

Since the chief work of the national committee in carrying on 
the campaign is to influence the minds of the voters, its attention 
is given in a very systematic way to the preparation of the cam- 
paign Uterature. As soon as the issues of the campaign are 
pretty well settled, each party publishes a campaign text-book, 
which usually contains the platform, notification and acceptance 
speeches, biographical sketches of the candidates, statistics on 
business, tariff, trusts, money, and other economic issues, ad- 
dresses by prominent leaders, papers in defence or criticism of 
the administration, and the most cogent arguments which the 
party can advance in support of its position. The campaign 
text-books are sent out in large quantities, not to the pubhc 
generally, but especially to the newspapers, speakers, and others 

* The evidence for these statements is in the Congressional Record, Vol. XL, 
part vi, pp. 5366 ff. In 1907 Congress passed an act forbidding corporations 
to make contributions to campaign funds in federal elections. 

The Nomination and Election of the President 177 

in a position to influence voters by argument. In addition to 
the regular campaign text-book there is usually a text-book issued 
by the congressional committee ^ which contains additional in- 
formation on the "records" of the parties and their policies. 

These central pieces of campaign literature are supplemented 
by innumerable pamphlets, leaflets, posters, cartoons, and con- 
gressional speeches, printed in every language that is represented 
by any considerable number of voters. A regular bureau of print- 
ing and publication under the supervision of an expert directs 
this enormous "literary" output, which is distributed broadcast, 
very often through the state central committees. It was esti- 
mated that the Republican committee in 1896 sent out about 
20,000 express packages, 5000 freight packages, and probably 
half a million packages by mail.^ 

A far more effective way of reaching the public at large is 
through the newspaper. Thousands of the uninteresting docu- 
ments sent out, by the national committee are doubtless thrown 
away unopened or unread, and there must be an enormous waste 
of this branch of the campaign work. The newspapers, however, 
which have regular readers, reach the public more directly; and 
accordingly the national committee does all that it can through 
the established newspapers, from the great city daily with its' 
huge editions, down to the rural weekly with a circulation of 
five hundred printed on a hand-press. It was estimated that the 
Republican national committee, in 1896, reached five million 
families every week with newspapers containing RepubHcan ar- 

In addition to the printed arguments addressed to the people, 
there are oral arguments made by campaign speakers. The 
national committee generally has a bureau of public speakers 
which prepares a list of available orators by testing applicants 
and drafting volunteers, and directs the speakers in the field by 
placing them in positions where their special talents may be most 
effective. These orators are of every rank, from the man with the 
strong voice who can harangue a crowd on the street corner, 
to the finished speaker whose very name will draw thousands. 

^ See above, p. 133. 

^ Review of Reviews, Vol. XIV, pp. 533 ff. 

^ For this topic and an excellent account of the campaign of 1896, see Read> 
ings, pp. 171 ff. 


178 American Government and Politics 

Hundreds of these speakers are directed from headquarters, and 
thousands of local volunteers are enlisted by state and county 
committees, sometimes in consultation with the authorities higher 
up. Itineraries are laid out, halls and bands engaged, parades 
organized, and every step taken to make the oratorical effort 
of the greatest possible eft'ect. According to one estimate, for 
several weeks before the election of 1900, seven thousand Re- 
publican speeches were made every week day and night. 

Sometimes the presidential candidates themselves enter the 
/ lists. Mr. Bryan, for example, in 1896, toured the United States 
in a private car, delivering no less than four hundred reported 
speeches in twenty-nine different states, thus making undoubt- 
edly the greatest oratorical record of any candidate up to that 
campaign. Sometimes the candidate does not travel about, but 
contents himself with remaining at home and addressing crowds 
that are brought from far and near on railway excursions. In 
this way, Mr. McKinley did effective work at his home in Can- 
ton, Ohio, in 1896. In 1908 Mr. Taft is reported to have jour- 
neyed 18,500 miles and to have made 436 campaign speeches 
in thirty different states; and Mr. Bryan at least equalled his 
first record. In 191 2 Mr. Roosevelt and Mr. Wilson made long 
speaking tours and in 1916 Mr. Hughes made a transcontinental 
campaign journey which was supplemented by an extensive tour 
on the Pacific Coast. 

A very practical and indispensable part of the national com- 
mittee's work is the polling of doubtful states. Early in the 
campaign a political census is taken of those states in which the 
vote has been known to vacillate from campaign to campaign, 
and great pains are taken to make this census complete and ac- 
curate by sparing no cost in selecting and paying reliable and 
efficient canvassers. Thus the party has a fairly accurate knowl- 
edge of the number of votes upon which it can rely, and also a 
fairly accurate list of the number of doubtful persons whose votes 
may be influenced by various means. With the results of this 
great political census of the uncertain states in its hands, the na- 
tional committee is very much in the position of a military staff, 
on the field of battle, which is acquainted with the numerical 
strength of the opposing army, the weak points in its equipment 
and defence, and the necessary lines of advance for winning vic- 
tory. The effective means for influencing the several categories 

The Nomination and Election of the President 1 7g 

of doubtful persons are immediately despatched to the scene oi 
action. Two weeks before election day in 1896, the RepubUcans, 
fearing the loss of Iowa, made a canvass of every doubtful voter 
in that state, by sending a zealous and tactful RepubUcan to each 
one. This detailed and effective canvass is reported to have 
cost over $200,000.^ 

It is indeed a marvellous contest that closes on the day when 
the ballots of millions of voters are cast for the presidential elec- 
tors in the several states.^ 

Casting and Counting the Electoral Votes 

The political activities described above — important as they are 
in the selection of the President and Vice-President — are wholly 
unknown to the Constitution. That document, in fact, contains 
but very few clauses with regard to the actual choice of the Presi- 
dent and Vice-President.^ In the first place it contemplates i;v 
system of indirect election: each state shall appoint, in such 
manner as the legislature thereof may direct, a number of 
electors equal to the number of Senators and Representatives to 
which the commonwealth is entitled in Congress. To remove 
the electors from any direct contact with the federal government, 
it was added that no Senator or Representative or a person hold- 
ing any office of trust under the United States should be appointed 
an elector. 

It is to be noted that the electors of each state are to be chosen 
as the legislature thereof may determine. In the course of our 
history no less than three distinct methods have been de\dsed. 
(i) In the beginning, it was often the practice for the state legis- 
latures to choose the electors; but mthin a quarter of a century 
the majority of thetn had abandoned this ^practice in favor of 
popular election. (2) Where this more democratic system was 
adopted it was often the custom at first to have two electors 
chosen by the voters of the state at large and the remaining 
electors chosen by congressional districts — thus each voter would 
have the right to vote for three electors, two at large and one from 

> World's Work, Vol. I, p. 77. 

^ The Tuesday following the first Monday in November was fixed by 
Congress in 1845. 
' Readings, p. 154. 


American Government and Politics 

his own district.^ (3) It was at length discovered that a staters in- 
fluence in national politics was greatly increased if all of its elec- 
tors could be carried by one party or the other, and consequently 
the system of election by district has been abandoned, in favor of 
election by general ticket throughout the state at large.^ 

It is necessary, accordingly, for each party in each state to 
prepare a list of candidates equal to the total number of electors 
to which that particular commonwealth is entitled. In practice, 
the presidential electors are generally chosen by the state con- 
vention of the party, and very often the office of elector is re- 
garded as a titular honor to be given to distinguished citizens or 
to partisans wilHng to make liberal contributions to campaign 

On election day, therefore, the voter ^ does not vote directly 
for President and Vice-President, alt hough for_ _ his inform a.ti on 
the names of the candidates of all parties appear on the ballot. 
Orrthe contrary, if he votes a straight ticket, he simply^otesfsr 
the entire list of electors put forward by his party. There is no 
point at all in splitting the vote for presidential electors, unless 
there is a fusion, such as existed for example in some of the western 
states between the Democrats and Populists whereby each of the 
two groups was to have a certain share of the electors according 
to a predetermined arrangement. What happens, therefore, on 
a general presidential election day is the choice in each state of a 
certain number of presidential electors — 531 in all. Normally 
the party which secures a plurality of votes in any state is 
entitled to all of the electoral votes of that state for President 
and Vice-President, no matter how large the minority.* No 
elector would dare to break faith with the party wliich placed 
him in nomination, and vote for the candidates of the opposite 
party. Cohseqtiehtly, the deUberative, judicial, non-partisan 

* "In 1824, twenty-four states took part in the election. In six, the electors 
were chosen by the legislatures and in eighteen by popular vote, and of 
these in thirteen by general ticket and by districts in five. . . . South 
Carolina continued the practice of legislative appointment until i860.'* 
Finley and Sanderson, The American Executive, p. 332. 

^In 1892 Michigan temporarily reverted to the district system. Se9 
Readings, p. 157. 

' On the suffrage, see below, chap. xxii. 

* There have been a few instances of split electoral tickets — California 
and Kentucky in 1896 and JNIaryland in 1908, for example. 

The Nomination and Election of the President l8l 

system designed by the framers of the Constitution has been 
overthrown by party practice. 

It is sometimes held that through this party practice we ,have 
secured popular election of President and Vice-President, but if we 
mean by popular election, choice by majority or plurality vote 
throughout the United States, it has not been attained as yet. 
Indeed, several of our Presidents have been elected by a minority 
of the popular vote. Mr. Lincoln, for example, was chosen Presi- 
dent in i860 by a vote of 1,866,452 against a total of 2,815,617 
polled by all of his opponents — the large opposition vote being 
so divided and distributed as to elect less than a majority of the 
total number of electors. And two Presidents, Hayes and Har- 
rison, did not even receive a plurality. 

This possible contingency of election by a minority of the popu- 
lar vote cast is due to the fact that when a party carries a state, 
no matter by how slight a margin, it secures all of the presiden- 
tial electors to which that commonwealth is entitled. A party, 
therefore, that wins, although by narrow margins, in a sufficient 
number of states to obtain a majority of the electors may in fact 
poll a smaller number of votes than the opposing party which may 
have carried its states by enormous majorities. 

The practice of giving the entire electoral vote of a state to the 
party that has won at the polls, even by the slightest majority, has 
another significant effect. It concentrates the campaign prin- 
cipally in the states that are counted as "close" and are Hable to 
swing to either party in the election. The importance of carry- 
ing these pivotal states leads campaign managers to employ in 
each of them every art of winning votes known to practical poli- 
tics. For example, the narrow margin of 1,149 votes in New 
York, in 1884, gave that state to Mr. Cleveland instead of Mr. 
Blaine, and changed the result of the presidential election. 
The Republican national chairman in the campaign of 1888, 
remembering the lesson of the preceding election, threw a force 
of detectives in New York City to check false registration and 
illegal voting, with results which more than exceeded his expec- 
tations. This concentration of the campaign in the pivotal 
states has many bad features, especially the lavish use of money 
for questionable purposes. It is a notorious fact that in the 
states in which the rivalry between the parties is keenest, there 
is the largest amount of bribery. On the other hand, the system 

1 82 American Government and Politics 

works for " cleaner " politics in states where one party is certain 
to win, since no advantage can come from piling up votes. 

The methods by which the electors so chosen in each state shall 
meet and cast their votes are prescribed in the Constitution and 
in federal and state statutes. It is provided by federal law that 
the electors of each commonwealth shall convene on the second 
Monday of January, immediately following their appointment 
at such place as the legislature of the state may direct — in prac- 
tice, the state capital. When they have assembled, the electors 
vote by ballot for President and Vice-President, "one of whom 
at least must not be an inhabitant of the same state with them- 
selves" — that is, for the two candidates, nominated by their 
party; and they thereupon make distinct lists of the number of 
votes so cast, and sign, certify, seal, and transmit the Usts to 
the president of the Senate of the United States. With the Hsts 
of their votes for President and Vice-President, the electors must 
transmit their certificates of election as evidence of their power 
to act — evidence of crucial importance in case of contested 
lelections. When they have cast their votes and transmitted 
\their documents according to law, the electors have performed 
their whole duty. They are not paid by the federal government, 
but are regarded as state officers, and must look to the state 
legislature for remuneration for their services.^ 

The counting of the total electoral vote polled throughout the 
United States^ begins in the Hall of the House of Representatives 
on the second Wednesday in February, following the meeting 
of the electors in their respective states. It is conducted in the 
presence of the Senate and the House of Representatives with 

^ Readings, p. i6o. 

^ The constitutional clauses relative to counting the electoral vote do not 
provide for cases of disputed returns from the several states, and in 1876 a 
grave crisis arose on account of frauds and irregularities in several of the 
commonwealths. The Senate was Republican and supported the Republican 
candidate, Mr. Hayes; and the House was Democratic and favored the Demo- 
cratic candidate, Mr. Tilden. A deadlock occurred and Congress found a 
way out by creating an electoral commission of five Senators, five Representa- 
tives, and five Supreme Court Justices. On all important matters the eight 
Republicans on the commission voted together, and declared Mr. Hayes 
elected. See P. L. Haworth, The Disputed Election. In 1887 Congress, by 
an act, provided for settling such disputes. For the details, see the act in Stan- 
wood, Presidential Elections, p. 453. 

The Nomination and Election of the President 183 

the president of the Senate in the chair. Two tellers are ap- 
pointed by the Senate and two by the House of Represen- 
tatives. The certificates and documents are opened by the 
president of the Senate, taking the states in alphabetical order 
beginning with Alabama, and thereupon handed to the tellers 
who read the same and list the votes. The candidates having, 
the greatest number of votes for President and Vice-President 1 
respectively, if such number be a majority of the whole number \\ 
of electors appointed, are declared duly elected. Except in case 1 
of a contested election, this count is, of course, merely an im- 
pressive formality, for the result is ordinarily known three 
months before. 

In^case no candidate for President receives a majority of all 
the electoral votes cast, the House of Representatives thereupon 
chooses the President by ballot from the three candidates who 
Have received the highest number of votes. It should be noted, 
however, that, in selecting the President, each state represented 
in the House is entitled to only one vote; a quorum consists of 
the members from two-thirds of the states; and a miajority of 
all the states is necessary to choice. Accordingly, the vote of 
each state for the presidential candidate must be determined by 
the majority of the Representatives of the commonwealth in the 
House. In case of the failure of the House to choose a President ^ 
(whenever the election devolves upon that body) before the fourth 
of March following, it becomes the duty of the Vice-President 
to act as President. 

There have been only two instances of presidential elections ' 
by the House of Representatives — Jefferson in 1801 and J. Q. 
Adams in 1825. This is due, of course, to the fact that we 
have two great political parties somewhat equally balanced. If 
the voters were broken into several parties the election would 
almost invariably devolve upon the House. 

Whenever no candidate for Vice-President receives a majority 
of all the electoral votes, the election is thrown into the Senate, 
and the Senators voting as individuals must choose the Vice- 
President from the two candidates having the highest number 
of votes. Two-thirds of the whole number of the Senators con- 
stitute a quorum for this purpose, and a majority of the whole 
number is necessary to a choice. 

The qualifications for President are stated in the Constitution, 


184 American Government and Politics 

He must be a natural-born citizen, at least thirty-five years old, 
and must have been fourteen years a resident within the United 
States. The same quaUfications apply to the Vice-President. 
The term is fixed at four years, and so far as the Constitution is 
concerned, the President or Vice-President may be reelected 

To these constitutional requirements, a third has been added 
by political practice: no person is eligible to the office of Presi- 
dent for more than two terms, at least, in succession. This 
" third term doctrine," as it is called, is supposed to rest upon the 
example set by Washington in declining reelection at the expira- 
tion of eight years' service. Tradition has it that Washington 
acted on principle, but this seems to have slight historical foun- 
dation.^ He did not share Jefferson's decided ideas on rotation 
in office, and there is apparently no reason for believing that 
he objected to a President's serving three terms or more. In 
fact, his farewell address is filled with reasonable excuses why he 
in particular ought not to be charged with lack of patriotism or 
neglect of duty in refusing to serve for another term. Jefferson 
originally believed that the President should have been given a 
seven years' term, and then made ineligible for reelection.^ 
Later, however, he came to the conclusion that service for eight 
years with the possibility of removal at the end of four years was 
nearer the ideal arrangement. He, accordingly, followed the 
example set by Washington, and thus the third term doctrine 
early received such high sanction that it became a political dogma 
almost as inviolable as an express provision of the Constitution. 

The question was raised anew in 191 2 in the case of Mr. 
Roosevelt, but his supporters urged that his candidacy was 
only for a second "elective term." The Democratic platform 
pledged the party and the candidate to a single term and 
promised a constitutional amendment to that effect. 

^ In case of the death or resignation of the President, the Vice-President 
succeeds. By statute Congress provided, in 1886, that in case of the death or 
resignation of both the President and Vice-President the following officers 
shall serve, in the order mentioned : Secretary of State, of the Treasury, of 
War, the Attorney- General, the Postmaster-General, the Secretary of the 
Navy, and of the Interior. 

2 R. S. Rantoul, in The Essex Institute Historical Collections, Vol. 
XXXVII, p. 321 (1901). 

* Readings, p. 70. * 

The Nomination and Election of the President 185 

The Inauguration 

It was formerly the practice for Congress, after having made 
the official count, to select a committee for the purpose of notify- 
ing the new President of his election, but this was not uniformly 
followed, and has now been abandoned altogether. Curiously 
enough no official notice whatever is given to the President-elect. 
He is supposed to be sufficiently aware of the fact himself, and 
on the fourth of March he appears to take the oath of office. He 
usually arrives in Washington a few days before, and calls upon 
the retiring President, to pay his respects. On the day of inaugu- 
ration, the President-elect, in charge of a committee on cere- 
monies, is conducted to the White House, whence, accompanied 
by the President, he is driven to the Capitol. Unless the weather 
prevents, the oath of office, administered by the Chief Justice 
of the United States, is taken in the open air upon the platform 
built for the special purpose at the east front of the Capitol.^ 
Following the example set by Washington, it is the practice of 
the President to deliver an inaugural address setting forth his 
policy. After the administration of the oath of office, the new 
President is driven back to the White House, where, from a re- 
viewing-stand, he surveys a long procession, which is usually 
hours in filing past. 

As soon as the new President has been installed, he is confronted 
with the problem of selecting his Cabinet and of filling a large 
number of minor places which are either vacant or whose occu- 
pants are ousted for one reason or another.^ It is quite common 
for the President to select for the post of Secretar ^f St ate the 
member of his party who is generally deemed to be next to him- 
self in the esteem of the country. For example, Mr. Lincoln 
called to the State Department Mr. Seward, who had been his 
chief rival for nomination at the convention of i860 in Chicago. 
Sometimes the new President rewards with Cabinet positions 
the men who have been especially prominent in securing his 
election. For example, Mr. Harrison appointed Mr. John 
Wanamaker, who had been treasurer of the Republican campaign 

^ If the weather prevents the open-air ceremony, the oath is taken in the 
Senate chamber. 

^ Of course, many appointments are decided upon long before inauguration. 

1 86 American Government and Politics 

committee, to the office oLPostmaster-General ; and Mr. Taf t re- 
warded with the same office Mr. Hitchcock, who was chairman of 
the national committee during his campaign. Mr. Wilson in 19 13 
selected as Secretary of State Mr. Bryan who had been three 
times the Democratic candidate for President and next to the 
President was the most influential leader in the party. Though 
as a rule the President confines his appointments to members of 
his own party, he sometimes chooses members of the opposition 
who have been lukewarm in their political activity. Further- 
more, in making appointments to Cabinet positions, the President 
usually attempts to have the different parts of the country 
fairly well represented. In all cases, he is supposed to select 
men with whom he can work harmoniously and who are willing 
to carry out the main lines of his pohcy. While the Cabinet 
officer's nomination must be confirmed by the Senate, as a mat- 
ter of practice, the Senate always accepts the President's selec- 
tion, so that in a very peculiar sense the Cabinet may be regarded 
as his personal retinue on whom he can depend for cooperation 
and advice in making his administration successful.^ 

1 For interesting observations on the Presidency and the character of 
Presidents, see Bryce, American Commonwealth, Vol. I, pp. 69-84. 



The functions of the President are prescribed by the Consti- 
tution, but his real achievements are not set by the letter of the 
law. They are determined rather by his personaUty, the weight 
of his influence, his capacity for managing men, and the strength 
and effectiveness of the party forces behind him. As chief 
executive, he operates through a vast and comphcated official 
hierarchy centering at Washington and ramifying throughout 
the great American empire and even into foreign countries 
through the diplomatic and consular services. As pohtical 
leader he may use his exalted position to appeal to the nation — 
to sectional, class, or group interests; he may use his veto 
power against laws passed by Congress, he may agitate by means 
of his messages, and he may bring pressure to bear in Congress 
and wdthin his party through the discriminating use of the federal 
patronage. Thus it happens that we do not have the whole 
office of President before us when we are in the presence of the 
Constitution and statutes of the United States. 

The President as Director of the Administration 

The President is the head of the national administration. It 
is his duty to see that the Constitution, laws, and treaties of the 
United States, and judicial decisions rendered by the federal 
courts are duly enforced everywhere throughout the United 
States. In the fulfilment of this duty, he may direct the heads of 
departments and their subordinates in the discharge of the 
functions vested in them by the acts of Congress. The exact 
degree, however, to which he may control an administrative 
officer is frequently a subject of pohtical controversy, and cannot 
be set down with precision; it depends more upon the personaHty 
of the President than upon any theories of constitutional law.^ 

^ The President's power of direction is a product of historical development. 
It does not necessarily inhere in the Constitution. This power, according to 
Professor Goodnow, is "hardly recognized in the Constitution. The onl^^ 


1 88 American Government and Politics 

Some of the departments, however, are made more directly 
subject to the President's control than others. For example, 
the Secretary of State, in the conduct of foreign affairs,^ is com- 
pletely subject to the President's orders; and the Attorney- 
General must give an opinion or institute proceedings when 
required. On the other hand, when the Treasury was organized 
in 1789, it was definitely understood that Congress had a special 
control'over the administration of that Department.^ 

The Supreme Court has held that the President is bound to 
see that an administrative officer faithfully discharges the duties 
assigned by law, but is not authorized to direct the officer as to 
the ways in which they shall be discharged.^ Nevertheless, the 
President has the power to remove the head of a department who 
refuses to obey his orders, and it is, therefore, rather difficult 
to see why, in actual practice, he cannot determine, within the 
lines of the statutes, the general poHcy to be followed by that 
officer. When President Jackson wanted the government funds 
withdrawn from the United States Bank, he removed two Secre- 
taries of the Treasury, and finally appointed a third who was 
known to be subservient to his will. He had his way in the end. 

The President also possesses a large ordinance power — that 
is, authority to supplement statutes by rules and regulations 

provisions from which it may be derived are those which impose upon him 
the duty to see that the laws be faithfully executed, and permit him to * require 
the opinion in writing of the principal officer in each of the executive depart- 
ments upon any subject relating to the duties of their respective offices, 
but perusal of the early acts of Congress organizing the administrative sys- 
tem of the United States will show that the first Congress did not have the 
idea that the President had any power of direction over matters not political 
in character, . . . The act organizing the Treasury Department contains 
no reference to any presid-^ntial power of direction. It simply says that the 
Secretary of the Treasury shall generally perform all such services relative to 
the finances as he shall be directed to perform, and the context shows that 
reference is made to the direction of Congress, not to that of the President. . . . 
The result of our national administrative development has been thus a great 
enlargement of the American conception of the executive power." Princi- 
ples of the Administrative Law of the United States, pp. 77 ff. For another 
view of the President's administrative power, see Readings, p. 177. 

* Readings, p. 200. 

^ See below, p. 210. 

^ This was an early case; Kendall v. United States, 12 Peters, 524 (1838) 
It is doubtful whether this view would be taken to-day. 

The Powers of the President 189 

covering matters of detail sometimes of very great importance. 
Among other things, he makes rules for the army and navy, the 
patent office, the customs, internal revenue, consular and civil 
services. Sometimes he issues these rules in accordance with 
provisions of the statutes and sometimes under his general execu- 
tive power. Many of the army regulations he promulgates as 
commander-in-chief. When he makes rules for the civil service, 
he acts under specific provisions of the civil service law. Thus 
under his power to remove, to see to the faithful execution of the 
laws, and to issue ordinances, the President enjoys an adminis- 
trative authority of no mean dimensions.^ 

As chief executive the President may instruct the Attorney- 
General to institute proceedings against any one suspected of 
violating federal law, and in case of open resistance he may 
employ the armed force of the United States. Laxness or 
severity in law enforcement is, therefore, largely within his 

The Power of Appointment and Removal 

In connection with his administrative functions, the Presi- 
dent may nominate a large number of federal officers. This 
is important from the point of view of politics, as well as 

When considered in relation to the manner of their selection, 
the civil authorities of the United States — other than the 
President, Vice-President, presidential electors. Senators and 
Representatives — fall into two groups: (i) those officers whose 
appointment is vested by the Constitution or by act of XDon- 
gress in the President and Senate; and (2) those "inferior" 
officers, established by law, whose appointment is vested by 
Congress in the President, the courts of law, or the heads of 

The first group embraces most of the important subordinate 
officers of the federal government, — the heads of departments, 
most of the bureau chiefs, judges of the inferior federal courts, 
many commissioners, such as the civil service and interstate 
commerce commissioners, revenue officers, and postmasters in 

* Fairlie, National Administration, pp. i6 ff. 

^ Each house of Congress, of course, controls the'^appointment of its own 
ofl&cers — except the presiding officer of the Senate. 

i^o American Government and Politics 

large cities and towns. Taken together, they constitute an 
official army, whose salaries aggregate many million dollars 
a year. In filling these positions, the President and Senate are 
not hampered by any rules regarding qualifications; and as 
most of these officers hold for a term of four years, either 
under the Tenure of Office Act of 1820^ or by other acts or 
practice, their appointment gives to each incumbent of the 
presidential office the disposal of an enormous amount of 

The right of Congress to determine what is an *' inferior '^ 
office has never been questioned, but no very consistent rule 
has been adopted in this matter. A few bureau chiefs of great 
importance — principally in the Department of Agriculture — 
are ''inferior" officers in the view of the law because their 
appointment is vested in the President or in the head of the 
department. On the other hand many bureau chiefs are 
appointed by the President and Senate. The Librarian of 
Congress is appointed by the President alone; and the great 
army of clerks and minor officers are chosen by heads of 

The offices to be filled by the President and Senate may be 
divided into groups according to the degree of freedom which 
the President enjoys in making his own selections.^ 

I. Members of the Cabinet, that is, heads of departments, are 
usually the President's personal selection, although in this matter 
he is often controlled by preelection promises or by obligations 
incurred in engaging the active support of certain prominent men 
in his party. At all events, the Senate, even when it is in the 
hands of an opposition party, does not seek to control the ap- 
pointments to these offices; it usually ratifies the President's 
nominations promptly and without objections. The choice of 

* Congress, by this act passed in 1820, fixed the term of a large number of 
federal officers at four years subject to the President's removal power. The 
officer holding one of these positions is not guaranteed a four-year term, but 
may be removed by the President at will. Finley and Sanderson, The Amer- 
ican Executive^ p. 258. Federal judges, of course, hold office during good 

2 It should be noted that, under the Constitution, the President may fill 
vacancies occurring during a recess of the Senate by granting commissions 
which expire at the end of the next session of that body. See Ford, Ris^j 
and Growth of American Politics, p. 290. 

The Powers of the President 191 

diplomatic representatives is also left largely to the President's 
discretion, as far as the Senate is concerned ; although he often 
has many party obligations to consider in this connection. 
Military and naval appointments, especially in times of crisis, 
are principally subject to presidential control, but political in- 
fluences are by no means wanting here. It is not often that 
the Senate rejects nominations to the Supreme Court. 

2. A second group of offices, filled by the President and Senate, 
is largely subject to the control of the Senators, as a result of 
the practice known as "senatorial courtesy."^ Under its power 
to advise and consent, the Senate does not officially attempt 
to suggest nominations to the President, but by a custom which 
has grown up, it will only ratify appointments that are approved 
by the Senators (of the President's party) from the state in which 
the offices in question are located. If, however, they are located 
in a state not represented by a Senator of the same party, the 
President is freer to act.^ Thus it happens that appointments 
to federal offices within a state represented by members of the 
President's party are generally made by the Senators, or by 
the senior Senator, if he is the stronger of the two. This is not 
always the case, however. For example, President Garfield 
refused to place before the Senate certain candidates for federal 
offices in New York suggested by Senators Piatt and Conkling 
of that state. The Senators, feeling that their rights had been 
infringed by this executive action, thereupon tendered their 
resignations, but on asking for vindication by the New York 
legislature failed to be reelected. Here again, it is not a matter 
of formal rule, but of time 5nd circumstance — of the character 
of the President, Senators, and appointees in question.^ 

3. A third group of offices filled on presidential nomination is 
composed of minor positions within congressional districts, such 
as collectors of internal revenue and their assistants. It has be- 
come a settled custom to allow the Representative, if he is of the 
President's party, to name the appointees of his district ; but if 

^ Readings, p. 212. These officers include revenue collectors, postmasters 
in large cities, customs officers, judges of inferior courts, district attorneys, 

2 If there is no Senator or Representative from a state, belonging to his 
party, the President consults party leaders in the state in question. 

3 On this see Reinsch, American Legislatures, pp. 87 ff. 

192 American Government and Politics 

he is not of the President's party the patronage goes to the Sen- 
ator or Senators, as in the case of offices within the second group. 
Mr. Bristow, while the Fourth Assistant Postmaster-General, 
testified that when there was a vacancy in a post-office, the ad- 
ministration in power would send a request, upon a printed blank, 
to the member representing the district, if he was in political 
sympathy with the President's party, asking for the recommen- 
dation of some one to fill the place.^ The advice of the member 
is not binding, however, if the character or fitness of his nomi- 
nee is not satisfactory to the government. This patronage is of 
considerable political importance, and in most states it is used 
in connection with the local party organization.- Thus local 

* H. R. Reports, 58th Cong., 2d Sess., No. 2372, p. 7. Speaking of this 
necessity of the President's reliance on the recommendations of members 
of Congress, President Taft said : "A member of a community remote from 
the capital . . . wonders that a President, with high ideals and professions 
of a desire to keep the government pure and have efficient public servants, 
can appoint to an important local office a man of mediocre talent and of no 
particular prominence or standing or character in the community. Of 
course the President cannot make himself aware of just what standing the 
official appointed has. He cannot visit the district; he cannot determine 
by personal examination the fitness of the appointee. He must depend upon 
the recommendations of others; and in matters of recommendations, as 
indeed of obtaining office, it is leg muscle and lack of modesty which win, 
rather than fitness and character. The President has assistance in making 
his selection, furnished by the Congressmen and Senators from the locaUty 
in which the office is to be filled; and he is naturally quite dependent on such 
advice and recommendation. He is made more dependent on this because 
the Senate, by the Constitution, shares with him the appointing power; . . . 
practically because of the knowledge of the. Senators of the locality, the ap- 
pointing power is in effect in their hands subject only to a veto by the Presi- 
dent." Four Aspects of Civic Duty, p. 98. 

^ The way in which this system may work out is finely illustrated by this 
despatch from Washington, printed in the New York Evening Post, of Decem- 
ber 18, 1909: "Senator Albert J. Beveridge of Indiana is one of the busiest 
men in Congress this winter. In the last Congressional election all but two 
of the thirteen Congressional districts in Indiana went Democratic, and a 
Democrat was elected Senator, so that Mr. Beveridge has control of the 
patronage of eleven Congressional districts, as well as of the general pat- 
ronage of the entire State. All told, the Senator expects to dispose of about 
200 jobs this winter, ranging in hnpDrtance from postmaster to two col- 
lectors of internal revenue. ' 

" Realizing his responsibility, the Senator held conferences in many parts of 
the state before coming to Washington, with a view of ascertaining the wishes 
of the people most affected. It has been generally supposed that the Senator 

The Powers of the President 193 

influences make their way upward into the federal administration 
and give a certain amount of autonomy in a highly centralized 
system. This task of selecting appointees is usually a very vexa- 
tious one for the member, for he finds it difficult to please all of 
his constituents, and sometimes makes more enemies than friends 
by his appointments. 

The power of removal, so indispensable for the conduct of 
an efiicient administration, has been one of the controverted 
points of our constitutional law, but it seems now to have been 
settled with a fair degree of definiteness. The Constitution 
makes no provision for removal except by way of impeachment, 
but this is too cumbersome a process to be used often, especially 
for minor places. It was, therefore, early agreed that the right of 
removal was constitutionally inherent in the right to appoint,^ 
and that the President, without consulting the Senate, could 
remove the officers whom he nominated. This principle was ac- 
cepted until 1867, when Congress, then engaged in a bitter contro- 
versy with President Johnson, passed the Tenure of Ofiice Act pro- 
viding that the President must secure the consent of the Senate in 
making removals. This law, however, was later modified, and in 
1887 repealed altogether, so that the former principle seems to be 
restored, namely, that the President can remove all officers whom 
he appoints or nominates in the executive branch of the govern- 
ment. The President can even remove before the expiration of 
the term for which an officer is appointed, and is not required to 
assign any causes at all for his action.^ 

would build up a political machine of his own in making these appointments, 
but the fact is he is retaining many of the old appointees of the Fairbanks 
organization in office. His friends are beginning to wonder whether Bever- 
idge is playing into the hands of his enemies in his own party, or has won 
over the old machine to himself." 

^ So at least many publicists put it, but in strict accord with this principle 
the Senate should share in removal inasmuch as it shares in the right to 
appoint. The principle is vague but the practice is certain: the President 
may remove his appointees. 

^ Readings, p. 197. The federal judges, of course, hold office during good 
behavior and can be removed only by imf)eachment. 

194 American Government and Politics 

The War Powers of the President 

The President is commander-in-chief of the army and navy and 
of the state militia when called into the service of the United 
States. He holds this power in time of peace as well as in time 
of war. The equipment of the army and navy and the right to 
declare war, however, belong to Congress, and it is not possible 
to say just how far into the actual direction of the forces Congress 
may go under its constitutional authority. Some publicists 
have even contended that Congress can provide that a particular 
officer shall be assigned by the commander-in-chief to a particular 
division, or that in case a regiment or company has been de- 
spatched to a certain point by presidential order, Congress can 
countermand the order.^ If this is true, it is difficult to see 
why Congress might not in a slow and cumbersome way practi- 
cally direct the conduct of a campaign. However, it is contended, 
on the other side, with more reason, that the power of Congress 
ends with providing and maintaining the army and navy and de- 
claring war; and that the entire command of the military and 
naval forces is vested in the President, whose guidance, under the 
Constitution, is the law of nations and the rules of civilized war- 

The President appoints all military and naval officers by and 
with the advice and consent of the Senate, — except militia 
officers who are appointed by the respective states, — and in 
time of war he may remove them at will. In time of peace, 
however, they are removed by court martial. 

The President is not limited in the conduct of war to the 
direction of the armed forces; he may do whatever a com- 
mander-in-chief is warranted in doing under the laws of war 
to weaken and overcome the enemy. It was under this 
general authority, inherent in his office, that President Lin- 
coln, during the Civil War, suspended the writ of habeas 
corpus in states that were not within the theatre of the armed 
conffict.^ It was under this authority that he emancipated 

^Reinsch, Readings, p. 22. 

'^See below, chap, xvii; and Readings, pp. 184 and 308 ff. 
^ The courts have held that Congress has the power to suspend the writ 
of habeas corpus, but Congress has conferred it on the President. 

The Powers of the President 195 

the slaves in the sections at war with the Union ; arrested those 
charged with giving aid and comfort to the Confederacy; es- 
tablished a blockade of southern ports; and, in short, brought 
the whole weight of the North, material and moral, to bear in 
the contest. Greater military power than was exercised by 
President Lincoln in the conduct of that war it would be difficult 
to imagine.^ During the war against the Central Empires 
(191 7-18) the President's ordinary powers as commander-in- 
chief were immensely increased by acts of Congress conferring 
upon him almost unlimited authority over the economic and 
man power of the nation (see below Chapter XVII) . The Over- 
man Act of May 20, 19 18, gave him the right to coordinate and 
consolidate the agencies of national administration. Without ex- 
press warrant from Congress he sent American troops to Russia. 

Under his war power, the President may govern conquered ter- 
ritory, appoint officers there, make laws and ordinances, lay and 
collect taxes of all kinds, and, in short, exercise practically every 
sovereign right, until Congress has acted. One limitation has 
been laid on this power by the Court ; it was held that, after the 
ratification of the treaty with Spain, duties could not be laid by 
executive order on goods passing from the Philippines and Porto 
Rico to the United States or vice versa. 

The President may use armed forces in carrying into execu- 
tion the federal law against resistance that cannot be overcome 
by ordinary civil process. The United States, under the Consti- 
tution, guarantees to each commonwealth a republican form of 
government, and protects it against invasion, and, on application 
of the legislature or of the executive (if the legislature is not con- 
vened), against domestic violence. By act of Congress, the 
President is authorized to call forth the militia when aid is asked 
in due form by the authorities of a state struggUng against an in- 
surrection. It is by statutory law also that the President is 
empowered to use the militia or the army and navy whenever, by 
reason of obstructions, assemblages, or rebellion, it becomes im- 
practicable, in his judgment, to enforce federal law within any 
state or territory by the ordinary course of judicial procedure. 
It was under this authority, and his general obUgation to see to 
the faithful execution of the law, that President Cleveland used 
federal troops during the Chicago strike in 1894.2 

* Readings, p. 69 ; see below, chap. xvii. 2 Readings, p. 317. 

196 American Government and Politics 

The President and Foreign Affairs 

The President is the official spokesman of the nation in the 
conduct of all foreign affairs,^ and he is primarily responsible for 
our foreign policy and its results. It is true, however, that he is 
controlled in some matters by the Senate and in others by Con- 
gress. The Senate must confirm his nominations to diplomatic 
and consular positions, and must approve his treaties, and Con- 
gress alone can create diplomatic and consular positions and pro- 
vide the salaries attached to them. Congress must also, in many 
cases, make provision for the execution of treaties, but it has no 
right to estabUsh and conduct relations with any foreign power 
independently of the President. 

Under the Constitution, the President appoints ambassadors, 
other public ministers, and consuls, subject to the confirmation 
of the Senate; he makes treaties with the consent of two- thirds 
of the Senators present; and he receives ambassadors and public 
ministers from foreign countries;^ but his authority is not Hm- 
ited to the formal letter of the law. He may do many things that 
vitally affect the foreign relations of the country. He may 
dismiss an ambassador or public minister of a foreign power 
for pohtical as well as personal reasons, and, if on the former 
ground, he might embroil the country in war. His power to re- 
ceive any foreign representative authorizes him to recognize 
the independence of a new state, perhaps in rebellion against 
its former legitimate sovereign,^ and thus he might incur the 
risk of war. He may order a fleet or a ship to a foreign port 
under circumstances that may provoke serious difficulty; the 
ill-fated battleship Maine was sent to the harbor of Havana by 
President McKinley at a time when it was regarded by many 
Spaniards, though not officially, as an unfriendly act. The result 
all the world knows. As commander-in-chief of the army he 
might move troops to such a position on the borders of a neigh- 
boring state as to bring about an armed conffict. A notable in- 
stance of such an action occurred in the case of the opening of the 

^ Readings, p. 183. 
' See below, chap. xvi. 

' For example, Mr. Roosevelt's recogmtion of the republic of Panama in 
revolt against Colombia. 

The Powers of the President 197 

Mexican War, when President Polk ordered our troops into the 
disputed territory, and, on their being attacked by the Mexicans, 
declared that war existed by act of Mexico. Again, in his message 
to Congress the President may outline a foreign policy so hostile 
to another nation as to precipitate diplomatic difficulties, if not 
more serious results. This occurred in the case of the Venezuelan 
controversy, when President Cleveland recommended to Congress 
demands which Great Britain could hardly regard as anything 
but unfriendly. President Wilson, in his negotiations with Ger- 
many after the sinking of the Liisitania in 191 5, followed a policy 
destined to make war on the German Imperial Government, 
the one recourse open to the Congress of the United States. 
It was his definition of American rights that made war the only 
alternative to a surrender of national prestige. 

The President may even go so far as to make "executive agree- 
ments" with foreign powers without the consent of the Senate. 
The Constitution requires that only " treaties" shall be confirmed 
by the Senate, and long practice has shown conclusively that this 
term does not cover every sort of an international arrangement 
which may be made.^ Every adjustment of a minor matter with 
a foreign country is an agreement. 

The line between a treaty and an executive agreement is diffi- 
cult to draw; but the character of the power which the President 
can wield under his right of making such agreements is well 
illustrated by Mr. Roosevelt's action with regard to Santo Do- 
mingo. In January, 1905, he drafted a treaty with the govern- 
ment of the republic to the effect that the United States would 
maintain the integrity of that country, supervise the administra- 
tion of its finances, make provisions for the settlement of foreign 
claims, and generally assist in keeping order there. The Senate, 
however, refused to ratify this treaty; and the President there- 
upon secured from the Dominican government the appointment of 
American citizens to supervise the finances; made provision for 
the deposit of a certain portion of the republic's revenues for the 
benefit of foreign creditors; and sent American battleships to the 
ports of that country. In short, he carried out the main terms of 
the agreement without senatorial approval, and his poHcy was 

^ J. B. Moore, " Treaties and Executive Agreements," Political Science 
Quarterly, Vol. XX, pp. 385 ff.; also International Law Digest, Vol. V, p. 21a 

1 98 American Government and Politics 

severely criticised by the opposition in the Senate. "The treaty 
has been practically carried into effect without consulting the 
Senate," contended Senator Rayner. "The appointment of an 
American agent as an official of Santo Domingo to collect its 
customs was simply a cover and an evasion. Under the principles 
of international law and the comity of nations, this government 
is morally bound for the proper custody of this fund, and would 
be liable in case of its waste or loss. . . . Now when you add to 
this the fact that our warships are in the harbors of the island os- 
tensibly for the purpose of protecting American interests, but in 
reaUty protecting the officials of the island against any menace 
from without and revolution from within, you have the establish- 
ment of a sovereignty or a protectorate without a word from 
Congress or the Senate sanctioning the same." ^ It is evident 
that the President, under his unquestioned authority to make 
executive agreements, might go to great lengths and make ar- 
rangements with a foreign power far more serious in character 
than is often stipulated by formal treaty. Nevertheless, in this 
matter as in many other matters of government, time and cir- 
cumstance must determine. 

The President, in addition to his administrative duties, enjoys 
the power to grant reprieves and pardons (except in cases of im- 
peachment) for offences against the United States. No limits 
are imposed on his exercise of this power, and therefore it may 
be used as he sees fit. He may remit a fine, commute a death 
sentence to a term of imprisonment, or free the offender alto- 
gether; but when forfeiture of office is one of the penalties 
imposed, he cannot restore the offender to his former position. 
Though the usual process is to pardon after conviction, a 
pardon may be granted before or during trial. 

In the exercise of his power of pardon, the President relies, of 
course, largely upon the opinions of others. The appHcation for 
executive clemency with all the papers attached is sent to the 
Attorney- General, in whose department there is a pardon-clerk 
in charge of the preUminary stages. Usually the judge and dis- 
trict attorney under whose supervision the case was first tried 
are asked to make any statement they may choose about the 
merits of the case. The Attorney- General endorses on the appU- 

^ Reinsch, Readings, pp. 79 ff., for a full discussion of this important point 

The Powers of the President 199 

cation his opinion as to what course of action should be pursued, 
and the papers are then sent to the President for final determina- 
tion. "If the trial seems to have been fairly conducted," said 
President Harrison, "and no new exculpatory evidence is pro- 
duced, and the sentence does not seem to have been unduly se^ 
vere, the President refuses to interfere. He cannot weigh the 
evidence as well as the judge and jury. They saw and heard the 
witnesses, and he has only a writing before him. It often happens 
that the wife or mother of the condemned man comes in person 
to plead for mercy, and there is no more trying ordeal than to hear 
her tearful and sobbing utterances and to feel that pubUc duty 
requires that she be denied her prayer." ^ 

The President and Legislation'^ 

The President's position as chief executive officer is so exalted 
and the powers of that place are so extensive, that his functions 
as a legislator, both constitutional and customary, are often lost 
sight of by commentators. He is required by the Constitution 
to give to Congress from time to time inforrdation of the state 
of the Union and to recommend such measures as he may judge 
necessary and expedient. In the exercise of this function, he 
may recommend laws and even draw bills, which Congress will- 
ingly accepts, or which it accepts reluctantly under the feeling 
that the President has the support of his party throughout 
the country, or which it modifies or rejects altogether if it 

The message is the one great pubhc document of the United 
States which is widely read and discussed. Congressional de- 
bates receive scant notice, but the President's message is printed 
almost in extenso in nearly every metropolitan daily, and is the 
subject of general editorial comment throughout the length and 
breadth of the land. It is supposed, though often erroneously, 
to embody in a very direct sense the policy of the presidential 
party; it stirs the country; it often affects congressional elec- 
tions; and if its recommendations correspond with real and 
positive interests of sufficient strength, they sooner or later find 
their way into law. 

* Harrison, This Country of Ours, pp. 146 ff. 
' Readings, pp. 194 and 265. 

200 American Government and Politics 

There ought to be no cavil about the President's frequent and 
considerable use of the power to give information to Congress. 
"From the nature and duties of the executive department," 
says Story, "he must possess more extensive sources of infor- 
mation as well in regard to domestic as to foreign affairs than can 
belong to Congress. The true workings of the laws, the defects 
in the nature or arrangements of the general systems of trade, 
finance, and justice; and the military, naval, and civil estab- 
lishments of the Union are more readily seen, and more constantly 
under the review of the executive, than they can possibly be of 
any other department. There is great wisdom, therefore, in 
not merely allowing, but in requiring the President to lay before 
Congress all facts and information which may assist their de- 
Uberations; and in enabling him at once to point out the evil 
and suggest the remedy. He is thus justly made responsible, 
not merely for a due administration of the existing systems, but 
for due diligence and examination into the means of improving 

Of course, it may be questioned whether, in these days of swift 
communication of thought and argus-eyed journalists, there is 
very much in the President's message, that is new to Congress; 
and moreover, a great deal of the work of fitting legislation to 
conditions is done either by special or regular committees sup- 
posed to be more or less expert in the branches of legislation 
intrusted to their charge. Nevertheless, there can be no doubt 
about the advisability of a close association between those who 
make and those who enforce the laws. Especially is this true 
since the President is the only officer of the national govern- 
ment who represents the national party as a whole, and it is to 
him that the country looks for results in administration — 
results which can only be brought about by his cooperation 
with his party in Congress. 

The presidential message, at the opening of Congress, was 
delivered in person to the Senate and House in joint assembly 
by Washington and Adams; but this was abandoned by Jeffer- 
son.2 From that time forward it was the practice to commu- 
nicate by means of written messages until President Wilson in 
1 9 13 revived the old custom of delivery in person. 

^ Commentaries (5th ed.), Vol. II, p. 382. 
^ Readings, p. 192. 

The Powers of the President 201 

The Presidential message is very often not the work of the 
President alone, and there are notable instances of its being 
principally the work of some one else. In every case, especially 
of the message prepared for the opening session of Congress, the 
information contained in the document is largely furnished by 
the various departments. The President treats the material 
sent to him by the respective officers as he sees fit, sometimes 
taking out paragraphs, sometimes condensing, sometimes using 
it merely as the basis for his own conclusions. Some of President 
Roosevelt's special messages were founded on the reports of 
commissions, and were accompanied by handsome illustrations ; 
others were his own work, prepared primarily to promulgate his 
own views on some topic which he wished to make of public 
interest. President Wilson employed the message to communi- 
cate his policies not only to the country but to the whole world, 
including the European nations in arms against the United States. 

The treatment which the President's recommendations receive, 
of course, varies according to circumstances. They may be 
accepted, because Congress feels that they are sound in principle 
or because there is an effective demand for them in the country ; 
or they may be accepted because the President by his party 
leadership, or personal favors, or use of patronage can bring the 
requisite pressure to bear on Congress to secure their passage. 

The power of vetoing measures of Congress, like that of send- 
ing messages, possesses a legal and a practical aspect. Every 
bill or joint resolution must be presented to the President; if 
he signs, it becomes a law ; if he disapproves, he must return it 
to the house in which it originated, with a statement of his objec- 
tions; and the house must, thereupon, reconsider it. A two- 
thirds vote of both houses is sufficient to carry the measure over 
the executive veto. The same procedure is applied to orders, 
resolutions, and votes to which a concurrence of both houses is 
necessary, excepting questions of adjournment. If the President 
fails to return a measure within ten days (Sundays excepted) 
after it is presented to him, it becomes a law without his signa- 
ture, unless Congress prevents its return by adjourning, in which 

^ In practice "concurrent resolutions" are not submitted to the President. 
See below, p. 290. In practice also amendments to the federal Constitution 
are not submitted to the President. Burgess, Political Science and Constitu- 
tional Law, Vol. I, p. 148. 

202 American Government and Politics 

case it does not become a law if the President vetoes it, or fails 
to sign it. When Congress adjourns leaving many bills to be 
signed, the President may suppress quietly the bills to which he 
entertains objections; and this is known as the "pocket veto." ^ 

The President does not veto single items in appropriation 
bills, and Congress has attached other measures — disapproved 
by the President — to appropriation laws, and thus forced his 
signature. This practice of attaching "riders" is somewhat 
discredited, and is seldom employed. 

The veto power, in Hamilton's view, was conferred on the 
President because of the propensity of the legislative department 
to intrude upon the rights and absorb the powers of the other 
departments, and also because of the necessity of furnishing the 
executive with a means of defending his constitutional preroga- 
tives. But he added, "The power in question has a further 
use. It not only serves as a shield to the executive, but it fur- 
nishes an additional security against the enaction of improper 
laws. It establishes a salutary check upon the legislative body, 
calculated to guard the community against the effects of faction, 
precipitancy, or of any impulse unfriendly to the public good, 
which may happen to influence a majority of that body. . . . 
They will consider every institution calculated to restrain the 
excess of law-making, and to keep things in the same state in 
which they may happen to be at any given period, as much more 
likely to do good than harm ; because it is favorable to a greater 
stabiHty in the system of legislation." The veto may be used by 
the President as the representative of the whole country against 
measures enacted at the behest of group or sectional interests. 2 

On the question of exercising the veto, different views have 
prevailed. Jefferson contended: "Unless the President's mind, 
on a view of everything which is urged for and against the bill, 
is tolerably clear that it is unauthorized by the Constitution — 
if the pro and con hang so even as to balance his judgment — a 
just respect for the wisdom of the legislature would naturally 
decide the balance in favor of their opinion." ^ General Taylor 
heW that the veto power should never be exercised "except in 

^ Readings, p. 187. 

2 The Federalist, No. LXXIII. 

' Quoted in Lincoln, Works, Vol. II, p. 61. 

* Ibid., Yolll, p. 61, 

The Powers of the President 203 

cases of clear violation of the Constitution, or manifest haste 
and want of consideration by Congress." President Jackson, 
however, whose relations to Congress were quite different from 
those of either Jefferson or Taylor, had his own opinion of what 
the Constitution was, and alleged unconstitutionaUty as one 
of the grounds for vetoing the Bank Bill, although such an insti- 
tution had been declared constitutional by the Supreme Court.^ 
In vetoing a bill, President Grant assigned as his reason the fact 
that it was "a departure from true principles of finance, national 
interest, national obHgations to creditors, congressional promises, 
party pledges (of both political parties), and personal views and 
promises made by me in every annual message sent to Congress 
and in each inaugural address." Mr. Cleveland expressed his 
opinion that the veto power was given to the President for the 
purpose of invoking the exercise of executive judgment and in- 
viting independent executive action. 

Certainly the President is expected to safeguard the Constitu- 
tion by vetoing unconstitutional acts of Congress. This is 
especially true because many laws can only be brought before 
the Courts in a collateral way, if at all. 

The development of the exercise of the veto power is thus 
summed up by Finley and Sanderson:^ "From the organization 
of the government under the Constitution to the end of President 
Cleveland's second term, the number of bills vetoed was about 
five hundred. Authorities differ shghtly. The figures, includ- 
ing pocket vetoes upon which messages were written and bills 
informally or irregularly presented, seem to be four hundred and 
ninety-seven, of which the number regularly vetoed appears to 
be four hundred and eighty. Two hundred and sixty-five of 
these were private pension bills, of which five were vetoed by 
President Grant and the remainder by President Cleveland. Of 
private bills, other than pension bills, seventy were vetoed; of 
local or special bills, eighty-seven. The remainder, seventy-five 
in number, including bills for the admission of states into the 
Union, are classified as general bills. Of these seventy-five, 
President Washington vetoed two, Madison three, Jackson six, 
Tyler five, Polk one, Pierce three, Buchanan three, Lincoln two, 

* Readings, p. 187. 

2 Finley and Sanderson, The American Executive, p. 211. 

204 American Government and Politics 

Johnson eighteen, Grant nine, Hayes ten, Arthur three, Clevo 
land eight, Benjamin Harrison two." John Adams, Jefferson, 
John Quincy Adams, W. H. Harrison, Taylor, Fillmore, and 
Garfield did not use the veto power. Mr. McKinley vetoed at 
least fourteen measures and Mr. Roosevelt at least forty-two. 

The procedure of the President in dealing with bills has been 
described by Mr. Harrison.^ On its passage through Congress, 
a bill is signed by the President of the Senate and Speaker of 
the House; it is then taken to the Executive Mansion and usually 
referred to the head of the executive department to which its 
subject matter relates; in case a question of constitutionality 
arises, the Attorney- General is consulted. The bill then goes to 
the President with the departmental report upon it, and if he 
approves he signs the bill, dates it, and sends it to the Department 
of State for filing and pubHcation. If he disapproves the bill, 
and Congress is still in session, he returns it to the house in which 
it originated, with his objections, and perhaps with recommenda- 
tions for amendment. 

The veto power, taken in connection with the message and the 
appointing power, is an effective poUtical instrument in the hands 
of the President. By using a threat of the veto, he may secure 
the passage of bills which he personally favors; and at all times, 
in considering important measures. Congress must keep in view 
the possible action of the President, especially where it is a party 
question and the correct attitude before the country is indispen- 
sable. Mr. Roosevelt even went so far as to warn Congress 
publicly that he would not sign certain measures then before 
that body — and raised a storm of protest from those who said 
that he should not veto a bill until it was laid before him. 

The President'' s Privileges and Rights 

In addition to his powers and duties, the President enjoys 
certain privileges and rights. No tribunal in the land has any 
jurisdiction over him for any offence. He cannot bfi_.arrest€d — 
forany crime, no matter how serious — even murder.'-^ He may 
be impeached, but until judgment has been pronounced against 
him, he cannot be in any way restrained of his Uberty. 

* This Country of Ours, p. 128. 

^ Burgess, Political Science and Constitutional Law^ Vol. II, p. 246. 

The Powers of the President 20^ 

The President is entitled by right to payment for his services, 
for the Constitution provides that he shall receive at stated times 
a compensation which may not be increased or diminished during 
the term for which he is elected. He is forbidden, however, to 
receive any other emolument from the United States or from any 
state. The salary of the President was fixed at $25,000 in the 
beginning; it was increased to $50,000 in 1871; and to $75,000 
in 1909. In addition to his personal salary the President is 
furnished an Executive Mansion, executive offices, and certain 
other allowances. 

The Relations of the Executive and Legislative Departments 

There is a tradit ion in American political theory to the effect 
that the executive and legislative departments ought to be kept 
entirely separate. An examination of Numbers 47 and 48 of the 
Federaltsl shows however that the framers of the Constitution 
were aware of very decided limitations on the theory. Madison, 
the author of these numbers, called attention to the fact that 
among the first state constitutions "there is not a single instance 
in which the several departments of power have been kept abso- 
lutely separate and distinct." He went on to say that "unless 
these departments be so far connected and blended as to give to 
each a constitutional control over the others, the degree of sepa- 
ration which the maxim requires, as essential to a free govern- 
ment, can never in practice be duly maintained." The leader- 
ship which Washington and Hamilton took in drafting and sup- 
porting important measures of law passed by the early Con- 
gresses under the Constitution proved that they did not think 
the executive a mere agent to carry into effect the decisions of 
Congress after they had been independently reached. 

As a matter of practice from that time to this, it has been 
found impossible, even highly undesirable, to keep the depart- 
ments separate. Such separation breaks the natural tie that 
should exist between the body that expresses popular will and 
the authority charged with carrying that will into execution. It 
would strip the President of the rightful power which he enjoys 
as a leader in formulating public policies. Accordingly there 
has been e stablished a fairly cl ose conne ction between, the execu- 
tive and lefpslative departmen ts. This has been accomphshed 
in many ways. 

2oO American Government and Politics 

I. In the first place, the party tie, of necessity, binds the 
President and the members of his party in Congress. Although 
they may from time to time engage in controversies more spec- 
tacular than edifying, yet on fundamental matters of policy, 
the President and Congress must come into a sort of working 
agreement. Furthermore, the President is regarded as the 
leader of his party, and it is to him, rather than to Congress, 
that his party looks for the enforcement of any specific promises 
laid down in the platform or made officially during the presiden- 
tial campaign. Congress cannot, therefore, ignore the leadership 
of the President, and, however much it may oppose his policy, 
it must give heed to those measures in which he has unquestioned 
national party support. 

Within recent years, we have come to recognize more frankly 
than ever this position- of the President as party leader. Mr. 
Roosevelt was largely responsible for the policies which the 
RepubUcan party has made national issues. In his speeches 
made at different points throughout the country, and in his presi- 
dential messages, he advocated doctrines and measures which 
Congr£ss was compelled, even against its will, to accept because 
it realized that he had behind him powerful national interests 
which could not be disregarded.^ As party leader he issued, in 
1906, a general letter endorsing the Republican members of 
Congress and calling upon the country to support them in the 
coming election; two years later he singled out individual mem- 
bers of Congress and gave them special letters of commendation.^ 

Mr. Taft likewise frankly assumed the position of party 
leadership. He was largely instrumental in the adjustment of 
differences between the Senate and the House of Representatives 
over the tariff bill of 1909. While it may not be said that his 
conclusions on every matter were accepted, there can be no 
doubt that his frequent meetings with the members of the joint 
conference committee charged with the settlement of those 
differences were of the greatest significance in securing harmony 
and "a reasonable compUance with the party pledges for tariff 
revision" that were laid down in the platform on which he made 
his presidential campaign. 

^ Readings, p. 265. 

2 New York Times, May 28, 1908, 

The Powers of the President 207 

Mr. Taft expressly declared that he beheved it to be the duty 
of the President to assume the position of leadership in his 
party. "Under our system of politics," he says, "the President 
is the head of the party which elected him, and cannot escape 
responsibility either for his own executive work or for the legis- 
lative" poITcy of his party in both houses. He is, under the 
Constitution, himself a part of the legislature in so far as he is 
called upon to approve or disapprove acts of Congress. A 
President who took no interest in legislation, who sought to 
exercise no influence to formulate measures, who altogether 
ignored his responsibility as the head of the party for carrjdng 
out ante-election promises in the matter of new laws, would not 
be doing what is expected of him by the people. In the discharge 
of all his duties, executive or otherwise, he is bound to a certain 
extent to consult the wishes and even the prejudices of the mem- 
bers of his party in both houses, in order that there shall be 
secured a unity of action by which necessary progress may be 
made and needed measures adopted." ^ 

The climax of executive leadership during recent years was 
reached during the six years of Mr. Wilson's administration 
( 1 913- 1 9) in which his party had a majority in both houses of 
Congress, He exerted a powerful influence in the drafting and 
passage of every great measure of law. He went personally 
to the Capitol to consult with Senators and Representatives. 
He was in fact, if not in theory, the national law-maker. 

2. The. party tie.is_by no means the only bond of union be- 
tween the executive and legislative departments. By vesting 
t"Ke"appointing power to a large number of important offices in 
the hands of the President and Senate, the Constitution draws 
the two departments together. The extent to which the Presi- 
dent may use his power over appointments to influence his party 
friends in Congress, or the extent to which the Senate may employ 
its confirming power to bend the President to its will, depends 
upon circumstances; but it is perfectly clear that either may 
take advantage of the opportunity offered by this constitutional 
connection. An excellent illustration of the way in which the 
President may influence legislation is afforded by Mr. Dana's 
account of President Lincoln's manoeuvres to secure the adop- 

Four Aspects of Civic Duty, p. 100. 

2o8 American Government and Politics 

lion of the Thirteenth Amendment. It is so eloquent that it 
deserves quotation in full. 

Lincoln was a supreme politician. He understood politics because 
he understood human nature. I had an illustration of this in the 
spring of 1864. The administration had decided that the Consti- 
tution of the United States should be amended so that slavery should 
be prohibited. This was not only a change in our national policy, 
but it was also a most important miUtary measure. It was intended 
not merely as a means of abolishing slavery forever, but as a means 
of affecting the judgment and the feelings and the anticipations of 
those in rebellion. It was believed that such an amendment to the 
Constitution would be equivalent to new armies in the field, that it 
would be worth at least a million men, that it would be an intellectual 
army that would tend to paralyze the enemy and break the con- 
tinuity of his ideas. 

In order thus to amend the Constitution, it was necessary first to 
have the proposed amendment approved by three-fourths of the states. 
When that question came to be considered, the issue was seen to be 
so close that one state more was necessary. The state of Nevada 
was organized and admitted into the Union to answer that purpose. 
I have sometimes heard people complain of Nevada as superfluous 
and petty, not big enough to be a state; but when I hear that com- 
plaint, I always hear Abraham Lincoln saying, "It is easier to admit 
Nevada than to raise another million of soldiers." 

In March, 1864, the question of allowing Nevada to form a state 
government finally came up in the House of Representatives. There 
was strong opposition to it. For a long time beforehand the question 
had been canvassed anxiously. At last, late one' afternoon, the Presi- 
dent came into my ofiice, in the third story of the War Department. . . . 

"Dana," he said, "I am very anxious about this vote. It has 
got to be taken next week. The time is very short. It is going to 
be a great deal closer than I wish it was." 

"There are plenty of Democrats who will vote for it," I replied. 
"There is' James E. English, of Connecticut; I think he is sure, isn't 

"Oh, yes; he is sure on the merits of the question." 

"Then," said I, "there's 'Sunset' Cox, of Ohio. How is he?" 

"He is sure and fearless. But there are some others that I am not 
clear about. There are three that you can deal with better than 
anybody else, perhaps, as you know them all. I wish you would send 
for them." 

He told me who they were; it is not necessary to repeat the names 
here. One man was from New Jersey and two from New York. 

The Powers of the President 209 

"What will they be likely to want?" I asked. 

"I don't know," said the President; "I don't know. It makes no 
difiference, though, what they want. Here is the alternative: that 
we carry this vote, or be compelled to raise another million, and I 
don't know how many more, men, and fight no one knows how long. 
It is a question of three votes or new armies." 

"Well, sir," said I, "what shall I say to these gentlemen?" 

"I don't know," said he; "but whatever promise you make to 
them I will perform." 

I sent for the men and saw them one by one. I found that they 
were afraid of their party. They said that some fellows in the party 
would be down on them. Two of them wanted internal revenue 
collector's appointments. "You shall have it," I said. Another one 
wanted a very important appointment about the custom house of 
New York. I knew the man well whom he wanted to have appointed. 
He was a Republican, though the congressman was a Democrat. I 
had served with him in the Republican county committee of New York. 
The office was worth perhaps $20,000 a year. When the congressman 
stated the case, I asked him, "Do you want that?" 

"Yes," said he. 

"Well," I answered, "you shall have it." 

"I understand, of course," said he, "that you are not saying this 
on your own authority?" 

"Oh, no," said I ; " I am saying it on the authority of the President." 

Well, these men voted that Nevada be allowed to frame a state 
government, and thus they helped secure the vote which was required. 
The next October the President signed the proclamation admitting 
the state. In the February following, Nevada was one of the states 
which ratified the Thirteenth Amendment by which slavery was 
abolished by constitutional prohibition in all of the United States.^ 

3. The imperative necessity under which Congress is placed 
of securing information from executive departments with regard 
to legislative matters, and the desire of executive officers to 
secure new laws and amendments to old laws, constitute another 
important bond of union between the executive and the legisla- 
ture. Congress is constantly making demands upon the execu- 
tive for papers, documents, and special information of one kind 
or another, and in so far as the President regards these demands 
as reasonable and compatible with public interest he complies 
with them. As a matter of right, Congress may call upon the 

* C. A. Dana, Recollections of the Civil War, pp. 174-177, 

210 American Government and Politics 

executive for information, but it has no power, under the Con- 
stitution, to compel him to furnish papers and documents. 

In practice, the anxiety of the administration to secure favor- 
able consideration of its own measures in Congress leads it to 
comply quite readily with requests for information. This is 
as it should be, for frequently those who have charge of the ex- 
ecution of the laws know more about the actual conditions to 
which the laws must apply and the actual effect of the laws than 
do the legislators themselves.^ Furthermore, it is wise that those 
who are called upon to execute the laws should know the spirit 
and intention of those who have passed them. 

4. Quite an intimate relation is established between Congress 
and the executive through the practice of the former in inviting 
the assistance of departmental chiefs in drafting bills. Very 
frequently the Attorney- General, who is supposed to be merely the 
legal adviser of the President, is asked to give his opinion before 
a committee or to advise members of Congress on some partic- 
ular matters up for legislative action.^ It is also sometimes the 
practice for heads of departments to draft complete measures, 
transmit them to Congress either through a friend in that body, 
or even directly, and secure their reference to proper committees 
and ultimately their passage.^ It is a matter of common know- 
ledge also that the President from time to time invites to the 
White House members of Congress who may be of influence in 
securing the enactment of laws favored by the administration. 
On the other hand. Congress has in a number of instances even 
assumed the right to advise the President, by a statute or by a 
resolution, to adopt some particular executive policy. 

5. Another important line of connection is estabhshed be- 
tween the executive and legislature through appropriations. The 
Treasury Department is by law placed in a special relation to 
Congress; for Congress has the power to call directly upon that 
department for financial information without going through the 
form of making a request to the President. The Treasury 
Department collects the estimates of the amount of money 

^ It should be remembered that many members of Congress have seen 
long committee service and know more about administration than a nGvi 
President or executive officer. 

* This is informally, of course. 

^ Readings, pp. 196 and 267. 

The Powers of the President 211 

required by the various executive branches and compiles these 
estimates in a book which is printed and submitted to Congress 
at the beginning of each regular session. The first Secretary 
of the Treasury, Hamilton, claimed the right to report whenever 
he pleased on financial matters, although in practice his famous 
reports and recommendations were submitted to Congress only 
upon request. It is true, his demand for admission to the House 
of Representatives for the purpose of defending his pohcies was 
denied; but throughout his term he maintained very close rela- 
tions with his supporters in Congress and directed legislative 
tactics especially with regard to the funding of the national debt 
and the assumption of state debts. In a letter to Jay he wrote: 
" 'Tis not the load of proper ofiicial business that alone engrosses 
me, though this would be enough to occupy any man. 'Tis 
in the extra attention that I am obUged to pay to the course of 
legislative manoeuvres that alone adds to my burden and 
perplexity. " ^ 

This relation between the executive department and Congress 
in the matter of finance has been made even more intimate by 
the law of 1909, authorizing the President to review the 
estimated expenditures and revenues and make specific recom- 
mendations to Congress as to the best methods to be employed 
in securing a satisfactory balance in the budget. This law shifts 
to the President a large burden of responsibihty which has 
hitherto rested on Congress and undoubtedly will give an addi- 
tional weight to executive influence in legislative matters. 

Proposals to Establish Formal Connections between the Executive 
and Legislative Departments 

Several times in our history it has been suggested that the 
heads of departments should be given places in the legislature 
for the purpose of explaining and defending there, not only 
measures recommended by the administration, but also the 
various policies pursued in the execution of the law. It is true, 
the Constitution would prevent heads of departments, as civil 
officers, from being at the same time members of either house, 
but the houses, either separately or jointly, may admit persons 
who are not members and authorize them to speak on any matter. 

^ Hamilton, Works, Vol. X, p. 29. 

212 American Government and Politics 

Indeed, the act of 1789 organizing the Treasury Department, 
provided " that the Secretary of the Treasury shall, from time 
to time, digest and prepare plans for the improvement and man- 
agement of the revenue and for the support of pubUc credit 
. . . shall make reports and give information to either branch of 
the legislature, in person or in writing as may be required, respect- 
ing all matters referred to him by the Senate or House of Repre- 
sentatives or which shall appertain to his office." 

There are a number of examples in our early history of execu- 
tive officers appearing in the Senate for the purpose of making 
explanations and reading messages and papers. President 
Washington always read his opening messages before the two 
houses; and appeared before the Senate to consult with that 
body about the terms of treaties in process of negotiation. On 
July 22, 1789, Mr. Jefferson, then Secretary of Foreign Affairs, 
visited the Senate, in accordance with instructions, and explained 
the nature of certain executive business before that body. Ex- 
amples of this kind might be easily multiplied, but it is a matter 
of estabUshed history that in the days of the men who framed 
the federal Constitution it was a common practice to maintain 
close pubhc personal relations between Congress and the Cabinet 

In 1 88 1, a Senate committee, appointed for the purpose of 
investigating the question of the relation of the executive to the 
legislature, reported in favor of giving heads of departments the 
right to appear in Congress.^ This committee urged that such a 
practice was no violation of the principle of separation of powers; 
that complete isolation of the two departments would produce 
either conffict or paralysis. Though the two departments of 
government have a separate existence, runs the report, "they 
were intended to cooperate with each other as the different 
members of the human body must cooperate with each other in 
order to form the figure and perform the duties of a perfect 
man." The introduction of heads of departments upon the 
floor of Congress, the committee urged, would make the infor- 
mation given to Congress more pertinent and conclusive, and 
would put the members of the legislature on the alert to see that 
executive influence was only in proportion to the value of the 

^ Senate Report, No. 837, 46th Cong., 3d Sess. (1881). 

The Powers of the President 213 

information, and thus would enable the public to determine 
whether that influence was exerted by partisanship or by argu- 

In answer to those who urged that it would institute an 
unconstitutional relation between the executive and Congress, 
the committee reported: *' No one who has occupied a seat on 
the floor of either house, no one of those who year after year so 
industriously and faithfully and correctly report the proceedings 
of the houses, no frequenter of the lobby or the gallery, can have 
failed to discern the influence exerted upon legislation by the 
visits of the heads of departments to the floors of Congress and 
the visits of the members of Congress to the offices in the depart- 
ments. It is not necessary to say that the influence is dishonest 
or corrupt, but that it is iUegitimate; it is exercised in secret by 
means that are not public — by means which an honest pubHc 
opinion cannot accurately discover and over which it can there- 
fore exercise no just control." ^ In response to the contention 
that the imposition of these quasi-legislative responsibiUties upon 
heads of departments would make it impossible for them to per- 
form their regular administrative duties, the committee recom- 
mended that under-secretaries should be appointed to whom 
should be confided the routine business requiring only order and 
accuracy, so that the chief officers could confine their attention 
to those larger duties involving important policies. The idea 
of executive participation in Congressional debates was revived 
again in 19 13 by a special message from President Taft, but no 
action was taken to carry it into effect. 

The case against an approach to parliamentary govern- 

^ By the following order issued November 26, 1909, President Taft pro- 
posed to cut off the subterranean connection between the subordinates in the 
executive departments and Congress : — 

"It is hereby ordered that no bureau, office, or division chief, or subor- 
dinate in any department of the Government, and no officer of the Army and 
Navy or Marine Corps stationed in Washington, shall apply to either House 
of Congress, or to any committee of either House of Congress, or to any Mem- 
ber of Congress for legislation or for appropriations or for congressional action 
of any kind, except with the consent and knowledge of the head of the depart- 
ment ; nor shall any such person respond to any request for information from 
either House of Congress or any committee of either House, or any Member 
of Congress, except through, or as authorized by, the head of his depart- 

214 American Government and Politics 

ment has been stated by President Lowell as follows.^ If the 
Cabinet officers sat in Congress, the power of the President would 
be reduced and the chief control of the administration would pass 
to the legislature. If the President were of an opposite party 
from that in power in Congress, his administrative authority 
would be reduced to almost nothing, for, in those countries 
where parUamentary government has been introduced, the 
titular executive officer, whether he be the King of England or 
the President of France, loses his political power. Furthermore, 
deadlocks between the Senate and the House over any minis- 
terial poHcy would inevitably lead to the supremacy of one 
branch of the legislature and the decline of the other. If our 
development should follow the Une indicated in other countries 
having parUamentary government, the House of Representatives 
would become supreme, the Senate would sink into a mere oppo- 
sition of the House Hke the House of Lords in England, and the 
President would become merely a nominal head. Furthermore, 
such a fusion of executive and legislative departments would 
.strengthen the federal government at the expense of the states, 
and would destroy the power of the courts to declare statutes 
invalid. In other words, it is contended, anything like parlia- 
mentary government would make a revolution in the whole 
framework of our federal system, and dislocate the distribution 
of powers among the three departments. 

This argument, of course, does not apply to the proposal of 
Mie Senate committee to allow cabinet officers to discuss and 
defend administrative policies in either house of Congress. 
Doubtless such moderate change, however, would be regarded 
'IS a 3tep in the direction of a political revolution, and we shall 
probably continue to maintain, by subterranean and extra-legal 
methods, the connections between the executive and legislature 
which are maintained openly and in the full light of pubhc 
scrutiny in England and in France.^ 

1 Essays on Government, pp. 25-45, 

2 For observations on the vice-presidency, see Proceedings of the Ameri- 
can Political Science Association, Vol, IX, pp, 162-77, and the Century 
Magazine, Vol, LXXIX, pp, 208-14. 



The innumerable duties to be fulfilled in the execution of 
federal law under presidential supervision are distributed among 
ten great departments and certain commissions established by- 
Congress. Curiously enough, the Constitution makes no direct 
provision for these branches of the federal administration ; but 
it evidently assumes their existence, for it authorizes the Presi- 
dent to require in writing the opinion of the heads of the execu- 
tive departments, and also gives Congress power to vest in them 
the appointment of inferior officers. If is on this constitutional 
basis, therefore, that Congress assumes the power to create de- 
partments by law, regulate the duties of their respective heads 
down to the minutest details, and prescribe their internal organ- 
ization and the powers and duties of the chiefs of even the minor 
subdivisions. Only under the stress of the World War did Con- 
gress in 19 1 7 pass the Overman Act authorizing the President 
temporarily to create, abohsh, and transfer offices, bureaus, and 
other agencies of the government. 

The Heads of Departments 

The head of a federal department occupies a position radically 
different from that of a cabinet officer in any other countr y. He 
is appointed by the President,^ and may be removed by _blm or 
I Gylmpeachm ent . His duties, however, are prescribed minutely, 
not in presidential orders, save in certain instances, but in 
statutes enacted by Congress. He is responsible to the Presi- 
dent for the faithful execution of the law; but the President 
cannot alter or diminish any of the duties laid down by Congress, 
and cannot prevent Congress from imposing or taking away 
duties or from prescribing such minute details as amount to a 

* With the Senate's approval. Above, p. 189. 

21 6 American Government and Politics 

practical direction of the officer. "The President," says Mr. 
John Sherman, "is intrusted by the Constitution and laws with 
important powers, and so by law are the heads of departments. 
The President has no more right to control or exercise the powers 
conferred by law upon them than they have to control him in the 
discharge of his duties. It is especially the custom of Congress 
to intrust to the Secretary of the Treasury specific powers over 
the currency, the public debt, and the collection of the revenue. 
If he violates or neglects his duty, he is subject to removal by 
the President or impeachment, . . . but the President cannot 
exercise or control the discretion reposed by law in the Secretary 
of the Treasury, or in any head or subordinate of a department 
of the government." ^ The President, as we have seen, has the 
power of removal, however, and may exercise it for the purpose 
of directing his subordinates. In actual practice, therefore, 
there are many variations from Mr. Sherman's apparently 
convincing legal argument, especially when a strong-willed 
President has a firm poUcy of liis own which he is determined 
to carry out.^ Indeed, the logical application of his doctrine 
would amount to a complete decentralization of the admin- 
istrative organization and a destruction of the President's re- 

While it is impossible to give here a full .account of the duties 
of each secretary, it seems desirable to consider some matters 
which are common to them all. 

1. In the first place, a large appointing power to minor offices 
is conferred by law upon the departmental head, but this is now 
exercised under civil service rules which restrict his choice, in all 
except the important subordinate positions, to the candidates who 
have qualified by examination.^ The power of removal gener- 
ally accompanies the power of appointment, although there are 
some important exceptions by law and by executive order. 

2. In the second place, the head of a department enjoys a 
certain range of freedom in issuing departmental orders, for, by 
act of Congress, he may "prescribe regulations, not inconsistent 
with law, for the government of his department, the conduct of 
its officers and clerks, the distribution and performance of its 

* J. Sherman, Recollections, Vol. I, p. 449; Readings, p. 200. 

* See above, p. 188. ^ Below, p. 224. 

The National Administration 217 

business, and the custody, use, and preservation of the records, 
papers, and property appertaining to it." 

3. Every departmental chief maintains a more or less definite 
rela^tioor taJCongress. He must prepare annually a report of his 
department,^ but this is largely a formal compilation, for the mat- 
ters of policy or detail covered in it have little or no influence in 
directing legislation. Though Cabinet officers cannot be members 
of Congress, there is, as we have seen, nothing in the Constitution 
excluding them from the right to sit and speak there. Custom 
has decreed, however, that they must bring their influence to bear 
in circuitous ways. They often appear before Senate or House 
committees to explain measures or to answer inquiries as to some 
legislation relating to their respective departments.^ There are 
many instances of heads of departments transmitting to Congress, 
on their own motion, completed drafts of bills which they would 
like to see enacted into law.^ They sometimes establish friendly 
relations with the chairmen of prominent committees, and thus 
obtain a hearing for their policies which would otherwise be denied 
to them. 

4. The head of every department is subjected to constant 
interruptions from outside parties such as can come to the chief 
of no great business organization. "Washington wishes to see 
evidence of democracy about the departments," says a former 
Secretary of the Treasury, Mr. Vanderlip. ''Neither Senator 
nor Congressman is satisfied to cool his heels in an ante-room for 
any length of time, nor are political leaders who come to the capi- 
tol on a mission likely to be pleased if the Secretary's engage- 
ments are such that an appointment cannot be made with- 
out notice or delay. . . . The Secretary of this great de- 
partment must give heed to innumerable trifles such as would 
never reach the head of even a comparatively small business 
organization. Requests come from people of importance, and 
they must be taken up with the care which the position of 
such persons demands rather than with any thought of their 
importance in relation to the administration of departmental 

^ The Report of the Secretary of State is transmitted to Congress with the 
President's annual message. 

2 Reinsch, Readings, p. 37 1 . ^ Readings, p. 267. * Reinsch, Readings, p. 366. 

21 8 American Government and Politics 

5. With the multipHcation of the official duties connected with 
immigration, commerce, transmission of mails, and taxation, it 
has been found necessary to give to the heads of certain depart- 
ments the high authority of deciding finally upon cases appealed 
from lower administrative officials.^ For example, the immi- 
gration law provides "that in every case where an alien is ex- 
cluded from admission into the United States under any law or 
treaty now existing or hereafter made, the decision of the appro- 
priate immigration officers, if adverse to the admission of such 
ahen, shall be final, unless reversed on appeal to the Secretary 
of Labor"; and in such cases the decision of the Secretary is 
conclusive unless it can be made apparent that he has exceeded 
his jurisdiction or violated the law. Customs officers also are 
given large powers in appraising the value of imported goods, and 
the Court has declined to review the appraisements made by the 
proper authorities, declaring that the interposition of the courts 
in the appraisement of importations would involve the collection 
of the revenue in inextricable confusion and embarrassment. 
The Postmaster-General may issue fraud orders denying the use 
of the mails to persons and concerns who in his opinion are en- 
gaged in fraudulent transactions; ^ and those affected have no 
right to appeal to the courts for a review of the facts .on which 
he bases his decisions.^ In sustaining this conclusion, the Court 
said : " If the ordinary daily transactions of the departments which 
involve an interference with private rights were required to be 
submitted to the courts before action was finally taken, the re- 
sult would entail practically a suspension of some of the most 
important functions of government. ... It would practically 
arrest the executive arm of the government, if the heads of de- 
partments were required to obtain the sanction of the courts upon 
the multifarious questions arising in their departments, before 
action were taken in any matter which might involve the tem- 
porary disposition of private property. Each executive depart- 
ment has certain pubUc functions and duties, the performance of 
which is absolutely necessary to the existence of the government, 
and it may temporarily at least operate with seeming harshness 

^ Readings, p. 202. 

^ See below, chap, xx; Readings, p. 204. 

•'' They may appeal on questions involving construction of the law ; School 
of Magnetic Healing v. McNuIty, 187 U. S. R., 94. 

The National Administration 219 

upon individuals. But it is wisely indicated that the rights of the 
public must, in those particulars, override the rights of individ- 
uals, provided there be reserved to them an ultimate recourse 
to the judiciary." ^ 

The Cabinet 

The heads of the various departments compose the President's 
C abineff but this is a matfef of custom, not of law2_fo£the Cabinet, 
as a collective body, has no legal existence or powers. Congress, 
in creating the first departments in 1789, did not recognize, in any 
way, the possibility of a Cabinet council composed of the heads. 
Indeed, the act estabhshing the Treasury Department was de- 
signed, as we have seen, to bring the Secretary under congres- 
sional control in many ways. The Senate, being a small body, 
was then regarded as the real executive council on account of its 
powers of ratifying treaties and confirming appointments. 

Whatever may have been the view of Congress, however, 
Washington regarded the four chief executive ofiicials, including 
the Attorney- General, who was not made head of a department 
imtil 1870, as his confidential advisers, though the term Cabinet 
was not immediately applied to them. He also exercised his 
constitutional right of requiring opinions from the heads of de- 
partments, and took them into his confidence in all important 
matters very soon after the first appointments were made. We 
have direct evidence of Cabinet meetings as early as 1791, when 
Washington, having departed on a tour to the South, wrote to 
the three Secretaries: 'T have expressed my wish, if any serious 
or important cases . . . should arise . . . that the Secretaries 
for the Departments of State, Treasury, and War may hold con- 
sultations thereon, to determine whether they are of such a nature 
as to demand my personal attendance." During his first ad- 
ministration, Washington, by a gradual process, welded the de- 
partmental heads into an executive council, and by 1793 we find 
the term Cabinet or Cabinet Coxmcil applied to this group of 
presidential advisers.^ 

The Cabinet does not meet regularly at stated times but only 

* On this point, see Readings, p. 202 ff., and an article by Thomas Reed 
Powell on "The Conclusiveness of Administrative Determinations in the Fed- 
eral Government," American Political Science Review for August, 1907. 

2 See Yale Review, Vol. XV, pp. 160 S. 

220 American Government and Politics 

on the call of the President as pubhc business requires consider- 
ation.i The meetings are usually secret, and no record is kept 
of the transactions. As the special business of each department 
is discussed separately with the President by each officer, only 
matters of weight relative to the general policy of the admin- 
istration are brought up for consideration at Cabinet meetings.^ 
Any important piece of legislation desired by the President or 
by a Cabinet officer and about to be submitted to Congress, 
will very probably be discussed in detail, especially if it concerns 
party principles. Votes are seldom taken on propositions, and 
they are of no significance beyond securing a mere expression of 
opinion. This is illustrated by an incident related of President 
Lincoln, who closed an important discussion in the Cabinet in 
which he found every member against him, with the announce- 
ment: "Seven nays, one aye, the ayes have it." Nevertheless, 
Cabinet meetings are of service to the administration, especially in 
maintaining harmonious cooperation among the departments and 
in formulating the executive poHcy. When, in 1919, President 
Wilson became seriously ill, it was reported that many questions 
were decided at cabinet meetings which he was unable to attend. 
Later, however, he repudiated the legality of the meetings. 

The Cabinet is the President's council in a very peculiar sense, 
for, having no legal existence or warrant, it is not subjected as such 
to congressional control. In the first administration of President 
Jackson, the Senate requested the transmission of a paper sup- 
posed to have been read by him to the heads of the executive 
departments, and he replied in no uncertain language: *'The 
executive is a coordinate and independent branch of the govern- 
ment equally with the Senate, and I have yet to learn under what 
constitutional authority that branch of the legislature has a 
right to require of me an account of any communication, either 
verbally or in writing, made to the heads of departments acting 
as Cabinet council. As well might I be required to detail 
to the Senate the free and private conversations I have held 
with those officers on any subject relating to their duties and 
my own." ^ 

1 Under President Taft one day in each week was set aside as "Cabinet 

2 Harrison, This Country of Ours, pp. 105 ff. 
2 Richardson, Messages, Vol. Ill, p. 36. 

The National Administration 221 

The Departments of National Administration ^ 

Some indication of the complexity and extent of the adminis- 
trative activities of the federal government is afforded by the 
following table giving the several departments and their chief 
officers and subdivisions. 

Department of State. — The Secretary, under secretary and 
three assistant secretaries; chief clerk; soUcitor; seven bureaus: 
diplomatic, consular, indexes and archives, accounts, rolls and library, 
appointments, and correspondence ; and seven divisions : far-eastern 
affairs, near-eastern affairs, western European affairs, Latin-Ameri- 
can affairs, Mexican affairs, passport control, and foreign intelligence. 

Department or the Treasury. — The Secretary and six assis- 
tant secretaries; chief clerk; supervising architect; comptroller 
of the treasury ; auditors for the Treasury, War, Interior, Navy, State 
(and other departments) and Post-Office Depa,rtments ; treasurer 
of the United States, register of the treasury; comptroller of the 
currency; director of the mint; commissioner of internal revenue; 
public health service ; revenue cutter service ; bureau of printing 
and engraving; life-saving service; federal farm loan board; 
war risk insurance ; general supply committee in charge of federal 

Department of War. — Secretary of War and two assistant secre- 
taries ; chief clerk ; general staff ; adjutant-general ; inspector-general ; 
surgeon-general ; chief of engineers ; chief of ordnance ; judge-advo- 
cate-general ; chief signal officer ; chief of the bureau of insular affairs ; 
board of engineers for rivers and harbors ; militia bureau ; motor 
transport corps ; air service ; coast artillery ; ordnance and fortifica- 
tion ; chemical warfare service ; tank corps. 

Department of Justice. — Attorney- General ; assistants ; solici- 
tor-general ; solicitors for the Departments of State, Treasury, Com- 
merce, Interior, Labor, and Post-Office, and solicitor of internal revenue ; 
chief clerk; division of accounts; attorney in charge of pardons; 
appointment and disbursing clerks ; superintendent of prisons ; chief 
of division of investigations. 

Post-Office Department. — Postmaster-General and four as- 
sistant postmasters-general; chief clerk; assistant attorney-gen- 
eral; purchasing agent; chief inspector; director of postal savings 

Department of the Navy. — Secretary and assistant secretary ; 
chief clerk; eight bureaus: navigation, yards and docks, ordnance, 
construction and repair, steam engineering, medicine and surgery, 

^ The salary of the secretaries is $12,000 each. 

222 American Government and Politics 

supplies and accounts; judge-advocate-general; general board; ma- 
rine corps. 

Department of the Interior. — Secretary of the Interior and 
two assistant secretaries ; chief clerk ; commissioner of patents ; pen- 
sions ; land ofifice ; Indian affairs ; education ; geological survey ; and 
reclamation service ; bureau of mines. 

Department of Agriculture. — Secretary of Agriculture and 
assistant secretary ; chief clerk ; solicitor, farm management, animal 
industry, weather, chemistry, accounts and disbursements, entomology, 
soils, biological survey, plant industry ; office of experiment stations ; 
forest service ; public roads ; division of publications ; bureau of mar- 
kets; state relations service. 

Department of Comlierce. — Secretary of Commerce ; assistant 
secretary ; chief clerk and disbursing clerk ; divisions of appointments, 
publications, and supplies ; bureaus of foreign and domestic commerce, 
census, fisheries, navigation, and standards ; coast and geodetic sur- 
vey; lighthouse bureau; steamboat inspection service. 

Department of Labor. — Bureaus : immigration, naturalization, 
labor statistics, and children. 

In addition to these ten departments there are the following boards 
and commissions and agencies which deserve special mention: the 
interstate commerce commission, the civil service commission, the 
federal reserve board, the federal trade commission, the federal farm 
loan board, the United States employees compensation commission, 
the United States shipping board, the United States tariff commission, 
the United States bureau of efficiency, the United States railroad ad- 
ministration, the federal board for vocational education, United States 
board of mediation and conciliation, the Pan-American Union, and 
the Smithsonian Institution. 

The Civil Service ^ 

A vast army of civil employees in the executive service of the 
United States centred at Washington and scattered throughout 
the whole American empire is organized into a complicated hie- 
rarchy headed by the ten departmental officers who constitute 
the President's Cabinet.^ The head of each department, as noted 
above, usually has a number of assistants. There are, for 

* Every library should have copies of the annual report of the Civil 
Service Commission, which may be secured free of charge by addressing 
the Commission at Washington, D. C. 

2 For the ''Spoils System," sec above, pp. 139-140. 

The National Administration 223 

example, four assistant postmasters-general and three assistant 
secretaries of state. The administrative work of each depart- 
ment is distributed among a number of bureaus and divisions, 
each with a chief officer, generally speaking, responsible to some 
higher authority.^ In each of the divisions or bureaus there are 
a number of clerks, technical experts, and employees serving in a 
variety of capacities. The total number of persons employed in 
the Interior Department, for instance, according to the secretary's 
report for 1908, was 18,770, of whom 4396 were in Washington. 
The officers and employees in the whole executive civil service on 
June 30, 1 9 16, numbered approximately 416,000. Considering 
this vast army with regard to methods of appointment, we find 
that it falls into two groups : 296,000 admitted on examination, 
or under the competitive or merit system, and approximately 
120,000 appointed without examination. 

As we have seen above,^ even the offices now filled by examina- 
tion were formerly subject to the spoils system — that is, they 
were given principally to party workers without special considera- 
tion for their fitness and without any test of abiHties. After 
some tentative experiments at reforming this spoils system,^ Con- 
gress at length passed, in 1883, the Civil Service Act,^ which is 
still the fundamental law governing the federal service. This 
Act provides for a Civil Service Commission composed of three 
persons, no more than two of whom shall be adherents of the 
same party, appointed by the President and Senate, and charged 
with the duty of aiding the President, as he may request, in pre- 
paring suitable rules for competitive examinations designed to 

^ The relation of bureau chiefs to heads of departments is no more scien- 
tifically worked out than the relation of heads of departments to the President. 
See above, p. 188. 

2 Page 139. 

3 x^mong these tentative measures were (i) the law of March 22, 1853, 
providing for the classification of certain clerks in Washington and requiring 
heads of offices to examine clerks before appointment — a law which proved 
to be little more than a farce; (2) the law of 1864, providing examination for 
thirteen consular clerks in the Department of State, and (3) the law of March 
3, 187 1, authorizing the President to prescribe regulations for admission into 
the civil service and to provide methods for ascertaining the fitness of candi- 
dates — a law which promised well under the administration of the great 
champion of civil service reform, George William Curtis, but fell to the 
ground in 1873, when Congress refused to make the necessary appropriations 
for its execution. * Readings, p. 208. 

224 American Government and Politics 

test the fitness of applicants for offices in the pubhc servicCj 
already classified or to be classified by executive order under the 
Act, or by further legislation of Congress. The Commission 
aids the President generally in the execution of the Act. 

The Act itself ordered the Secretary of the Treasury and the 
Postmaster-General to make classifications of certain employees 
within their respective jurisdictions, and at the same time pro- 
vided that the heads of certain departments and ofiices should, 
at the direction of the President, revise any existing classification 
or arrangement of their employees and include in one or more of 
such classes subordinate officers not hitherto classified. In other 
words, the Act itself brought a few offices under the "merit sys- 
tem," and left the extension of the principle largely to the dis- 
cretion of the President and future acts of Congress. 

When the law went into force it apphed to only about 14,000 
places which were then included in the classified service. The 
number has been steadily increased, principally by executive 
orders, until to-day far more than half of all of the offices in the 
executive civil service are filled by the process of examination 
and promotion under the civil service rules. During his ad- 
ministration. President Roosevelt issued a large number of orders 
extending the merit system. For example, in 1901-02, he ex- 
tended the application of the rules to the rural free delivery 
service; in 1902, at the suggestion of the President, the employees 
in the census office were classified by act of Congress; in 1904 
the positions in the forestry service were made competitive; and 
in 1905 the special agents of the immigration bureau on duty in 
foreign countries were included within the classified service.^ 
This list of Mr. Roosevelt's extensions is by no means complete 
— it merely illustrates the way in which the President may 
steadily widen the range of the " merit system " by applying it 
to one group of government employees after another. When Mr. 
Roosevelt entered upon his administration there were about 
100,000 officials in the classified service, and before the close of 
his second administration the number had increased to nearly 

The Civil Service Commission, under the direction of the Presi- 

* Reinsch, Readings, p. 698. 

^ There was, it must be remembered, a large increase in the number of 
government employees during this period. 

The National Administration 225 

dent, prepares the large variety of examinations required to test 
the fitness of candidates for the multitude of different offices. 
There is a chief examiner at Washington, and there are several 
hundred local boards of examiners scattered among the states 
and territories for the purpose of supervising local civil service 
Examinations.^ The Act orders that boards of examiners shall 
be erected at such points as to make it reasonably convenient 
and inexpensive for applicants to attend examinations. 

The Act requires that such examinations shall be practical in 
their character, and, so far as may be, relate to those matters which 
will fairly test the relative capacity and fitness of persons exam- 
ined to discharge the duties of that branch of the government 
service to which they seek to be admitted. In preparing the 
examination papers it is the practice of the Commission to ask 
the cooperation of the various departments; if a technical posi- 
tion is to be filled, the department concerned usually notifies the 
Commission, and very probably prepares the technical questions 
to test the fitness of candidates for the place. 

The preparation of the examination papers for a large number 
of positions is relatively a simple matter, for about sixty-six per 
cent of federal offices covered by the merit system are clerical in 
character. Only about eleven per cent are reckoned as pro- 
fessional, technical, scientific, mechanical, and executive. About 
as many of the clerical positions are in the postal service as 
in all the other branches of the federal administration com- 
bined. These various positions are classified into groups ar- 
ranged according to the minimum and maximum salaries paid 
in each; and for examining purposes they are separated into six 
divisions: clerical, technical, executive, mechanical, sub-clerical, 
and miscellaneous. In 1919 Congress instituted measures de- 
signed to bring about a complete reclassification of salaries and 
grades on the basis of the duties performed by the employees. 2 

Any citizen of the United States may apply for an examination 
admitting him to the federal service.^ For a long time, owing to 

1 These local boards are composed of federal officers detailed for this 
occasional work. ' ^ See below, p. 228. 

^ Full information may be secured by directing a request to the Civil Serv- 
ice Commission, Washington, D. C. Citizens are excluded on the following 
grounds : mental or physical incapacity, excessive use of intoxicants, service 
in the army or navy, dismissal from public service for delinquency during 
the preceding year, and criminal or disgraceful conduct. 

226 Amsrican Government and Politics 

the lax methods prevaihng, ahens were often admitted to govern- 
ment employment, but within recent years the requirement of citi- 
zenship has been quite rigidly enforced. AppUcants for examina- 
tion are not even charged a fee, in spite of the fact that the Civil 
Service Commission has several times recommended the estab- 
lishment of a nominal charge for the purpose of excluding the 
many thousands of ill-prepared persons who take the examina- 
tions in a gambling spirit — nothing to lose and possibly some- 
thing to gain. 

Through these examinations the Civil Service Commission must 
keep its registers of eligibles full, so that it can supply men of the 
most diverse training and experience when called upon by the 
several departments. On the same day, there may be demands 
for clerks, stenographers, expert chemists, patent examiners, 
draftsmen, interpreters, and postal clerks; and the Commission 
must be ready at once with a list of persons duly quaUfied for 
such positions. 

When called upon, the Commission selects from the proper 
register and transmits to the department concerned the names of 
three candidates at the head of the Ust, who are (if possible) resi- 
dents of the state wherein the appointment falls.^ From this list 
of three any one may be selected by the appointing officer, and 
the other names are returned to the Commission to be replaced 
upon the register. If the appointing officer refuses to accept any 
one of the three, he must give satisfactory reasons for his action. 
Every successful candidate is put on probation for a period of 
six months; then if his record is good his appointment is made 

It should be noted, however, that there are certain exceptions 
to the operation of the rules in the matter of making appoint- 
ments, (i) Preference is given to persons honorably discharged 
from the military or naval service; and, unless by direction of the 
Senate, no person who has been nominated for confirmation by 
the Senate shall be required to be classified or to pass an examina- 
tion. (2) Appointments to the public service in the depart- 

^ It will be noted that " inferior " officers, under the Constitution, may 
only be appointed by the President alone, the heads of departments, or the 
courts, as Congress may determine. As a matter of fact the vast majority 
of inferior officers are appointed by heads of departments under Civil Service 

The National Administration 227 

ments at Washington shall be apportioned among the several 
states and territories and the District of Columbia upon the basis 
of population — a principle which it is impossible to carry out in 
practice.^ (3) In general, private secretaries to the heads of de- 
partments, assistants, bureau chiefs, and attorneys and persons 
called upon to fill emergency employments are exempt from ex- 

The process of removal from the federal service after appoint- 
ment is a relatively simple matter. The rules require that no 
person shall be removed from a competitive position, "except 
for such causes as will promote the eflSciency of the service." 
When the President or head of an executive department ^ is con- 
vinced that any employee in the classified service is incapable or 
inefficient, he may remove such employee after notice and hear- 
ing have been accorded the employee in question. Whenever a 
subordinate officer recommends to the head of an executive de- 
partment the removal or reduction in grade of some employee, 
the head of the department must give notice to the employee 
and give him a chance to be heard. The Civil Service Com- 
mission^ contends that the complaint frequently heard to the 
efi"ect that unfit men are protected against removal by the rules 
is untrue. "On the contrary," says the Commission, " the power 
of removal for unfitness is w^th the head of the office. The 
appointing ofiicer being responsible for the efficient performance 
of the work of his office, it rests with him to determine whether 
such cause exists as to require the removal of an employee in 
order to promote the efficiency or discipline of his office." 

The courts do not interfere in cases of removal, on the ground 
that the right of appointing involves the right of removal and 

* A clause was attached to the census bill of 1909 designed to eliminate 
many frauds connected with residence claims. 

^ The exemptions include a long list of officers filling five printed pages of 
the Civil Service Report: two private secretaries to the head of each executive 
department and one to each assistant head, one private secretary to each of 
the heads of bureaus filled by the President and Senate, all persons appointed 
by the President without confirmation of the Senate, attorneys and persons 
receiving not more than $300 in compensation, appraisers at the ports of 
Boston, New York, and Philadelphia, all persons in the army transport service, 
and so forth. 

^ With regard to his own subordinates, of course. 

* Twenty-Jourth Annual Report (1908), p. 87. 

IzS American Government and Politics 

that the Civil Service Act limits the power of removal in onh' 
one instance — refusal to contribute money or service to a politi- 
cal party. In practice, however, whenever a large number of 
employees of the same political faith are removed from office, it is 
presumed that the removal was for political reasons, and the offi- 
cer making the removals is required to show that just cause ex- 
isted for each removal; but the courts will not intervene. 

Promotions as well as appointments in the federal service are 
based upon the merit system. Competitive examinations are 
established to test the fitness of candidates for advancement and 
a hst of eligibles is kept. Candidates for promotion may use, in 
support of their claims, recommendations from their chiefs. 

Notwithstanding all the efforts made to put the civil service 
upon the "merit" basis, many abuses grew up in practice in 
spite of the spirit of the law. It was found by a casual 
examination : (i) that employees doing the same work and 
of substantially the same experience and time of service were 
paid radically different salaries; (2) that employees doing 
work calling for different qualities and experience were paid 
the same salary; (3) that discriminations were often made 
against women in the government service; (4) that the same 
title was frequently fixed to positions utterly unlike as to the 
work required of the incumbents ; and (5) that wage and salary 
schedules, in addition to being inconsistent and inequitable in 
themselves, were far below the same schedules outside of tlie gov- 
ernment service. The discovery of such conditions led to the ap- 
pointment, in 1919, of a joint commission on salaries and grades 
to review the situation in several important departments and 
make constructive recommendations to Congress. 

Partisanship and Political Activities 

In making promotions, removals, and reductions in rank it is 
very difficult to exclude partisan politics from consideration, but 
attempts have been made by act of Congress and presidential 
orders to protect employees in the classified service from undue 
poUtical influence, and also to withdraw them from too great 
activity in partisan politics. The original Civil Service Act 
provides that no person in the pubfic service is for that reason 
under any obligations to contribute to any political fund or to 
render any political service, and that he shall not be removed or 

The National Administration 229 

otherwise prejudiced for refusing to do so. Furthermore, no 
person in the public service has a right to use his authority to co- 
erce the political action of any person. No recommendation by a 
Senator or a member of the House of Representatives, except as 
to the character or residence of an applicant, can be lawfully re- 
ceived or considered by any person concerned in making exam- 
inations or appointments under the Civil Service Act. Members 
of Congress and executive, judicial, military, and naval officers 
are forbidden to be involved in soHciting or receiving political as- 
sistance or contributions from any officer employed by the United 
States or from any person receiving compensation from the 
United States.^ The practice of soliciting campaign contribu- 
tions in the buildings occupied by branches of the federal govern- 
ment is likewise forbidden by law. 

Other forms of political activities, however, were left by the 
Act to the control of the heads of departments, and from time to 
time executive and departmental orders were issued for the pur- 
pose of eliminating abuses arising from the active participation of 
inferior office-holders in party affairs. At length, in 1907, politi- 
cal activity in the broadest sense was placed under the super- 
vision of the Civil Service Commission by an amendment to the 
rules, adopted by the President, providing that "all persons who 
by the provisions of these rules are in the competitive classified 
service, while retaining the right to vote as they please and to 
express privately their opinions on all political subjects, shall take 
no active part in political management or in political campaigns.'* 
This rule has been construed by the Commission to forbid the use 
of official positions for the benefit of any political party; and 
since its adoption it has been interpreted to prohibit the following 
types of political activity: "Service on poHtical committees, 
service as delegates to county, state, or district conventions of a 
political party, although it was understood that they were not 
*to take or use' any political activity in going to these conven- 
tions or otherwise violate the civil service rules'; continued 
political activity and leadership; the publication of a newspaper 
in the interest of a political party; membership in a club taking 
an active part in political campaigns and management; the cir- 
culation of petitions having a political object; service as a com- 

* There is, no doubt, more or less violation in practice. 

230 American Government and Politics 

missioner of elections in a community where it was notorious 
that a commissioner of elections must be an active politician." ^ 

The principle of permanent tenure involved in the merit 
system of appointment raises the question as to what shall be 
done with government employees who have passed the age of 
efficient service. It is only possible to keep the civil service up 
to a high standard by constantly recruiting it from able young 
men in the prim.e of life. This throws upon the officer responsible 
for administration the unwelcome duty of reducing the pay and the 
rank of the older men or discharging them altogether. If these 
older men are kept in service, it is frankly out of a generous ap- 
preciation of their condition. They are not only inefiicient them- 
selves, but by holding high places which they have won by meri- 
torious services they block the way for the promotion of capable 
and energetic younger men. "No man," said the quartermaster- 
general recently, "with the slightest appreciation of the loyalty 
of these old, tried, and faithful employees will urge that they 
should be discharged, and a reduction in salary is so dishearten- 
ing to them as to render nugatory their services after such action. 
No matter how kindly the necessity is explained to them, reduc- 
tion is a severe blow. ... If they are retained in the grades at- 
tained by merit in the period when they could and did do all or 
more than their duty, the effect on the younger clerks who then 
do the work is depressing in the extreme. Some provision for 
retiring the old clerks ought to be made. More good effects on 
administration would probably come through provision for retire- 
ment than any other one action that could now be taken, and its 
effect would doubtless prove as beneficial as did the estabHshment 
of the merit system." ^ 

President Taft took this view of the situation in his message 
of December 7, 1909, in which he declared that, in spite of the 
opposition to the establishment of civil pensions, which had 
naturally grown out of the heavy burden of military pensions, he 
was strongly convinced that no other practical solution of the 
difficulties presented by superannuation in the civil service could 
be found, than that of a system of civil pensions, 

* Report of the Civil Service Commission (igo8), p. lOt 

* Annual Report (1905), p. 65. 



The Congress of the United States is composed of two houses; 
jsi Senate representing the commonwealths in their corporate ca- 
pacities, and a House of Representatives apportioned among the 
/ states according to their respective populations. Two leading 
motives were responsible for the adoption of this bicameral 
system. In the first place, it was necessary to secure the support 
of the smaller states for the new Constitution by granting them 
equaUty of power in one branch of the federal government. In 
the second place, the Fathers believed that some check was nec- 
essary upon the impulses and passions of the more popular body. 
Then, of course, they had before them the examples of the 
English Parliament and their colonial assemblies. 

The House of Representatives 

The number of members in the House of Representatives is 
fixed by Congress, subject to the limitation that it shall never ex- 
ceed one for every 30,000 of the population. The first House 
consisted of sixty-five members, and, with one exception (the 
reapportionment of 1842) the number has been regularly in- 
creased until it has now reached 435. At each recurrence of the 
decennial apportionment there is a strong pressure on Congress 
to add more members to the already unwieldy assembly. This 
is due to the fact that those states whose populations have in- 
creased only slightly, or not at all, are unwilling to have their 
representation reduced in order that the rapidly growing states 
may receive the proportion due them under the numerical rule. 
It must be noted also that with the growth of population the 
number of inhabitants in each congressional district has in- 
creased enormously, from about 33,000 in 1793 to about 200,000 
at the apportionment of 19 11. This makes a constituency of 
great size when compared with the parliamentary district in 
England or in France. 

232 American Government and Politics 

A member of the House of Representatives must be a citizer 
of the United States of at least seven years' standing; he must be 
not less than twenty-five years old and an inhabitant of the state 
in which he is chosen. He cannot be at the same time a military 
or civil officer of the United States; and nearly all of the states 
have, by law or constitutional provision, forbidden their officers 
to hold positions of trust under the federal government. Some 
states have gone further and provided that each member must be 
a resident of the district which he represents; but this restriction 
is regarded by most lawyers as unconstitutional, because it adds 
a qualification to those imposed by the federal Constitution.^ 

As a matter of fact, however, it is practically an unwritten law 
that the member must be a resident of his district, although there 
are a few exceptions, as for example in New York, where down- 
town constituencies are often represented by men residing in up- 
town districts. Mr. Bryce has summarized the reasons for the 
adoption of this general custom as follows: State pride, of course, 
will prevent a district from going outside of the commonwealth 
for its Representative; the member of the House is relatively 
well paid, and the party in the district does not want to waste 
the post on strangers, but prefers to reserve it to strengthen the 
local organization; owing to the vast amount of party work re- 
quired by our compUcated system, it is necessary to -have as many 
offices as possible to reward the workers; the Representative in 
Congress is expected to know and primarily represent local needs 
and to secure harbor and river appropriations, po^t-office build- 
ings, special protection for industries and other favors for his 
constituents, for Americans regard the Representative as a 
spokesman of local interests rather than as a statesman, "formu- 
lating reason and justice into law." It is, therefore, highly im- 
probable that any change will be made in this unwritten law, at 
least in the near future, notwithstanding the fact that it often 
excludes able men from Congress because talent is not distributed 
by nature according to congressional districts. 

While it seems clear that states cannot add qualifications to 
those imposed by the federal Constitution on members of Con- 
gress, it is conceded in practice that either house, in the exercise 
of its constitutional powers to be judge of the elections, returns^ 

* But it is difficult to see how it could be set aside by legal process. 

The Congress of the United States 233 

and qualifications of its members, may exclude persons on othei 
grounds than those laid down in the Constitution.^ For example, 
in 1900, the House excluded Mr. Brigham H. Roberts of Utah on 
the ground that he was a polygamist. The committee reporting 
in favor of this action contended: ''Must it be said that the 
constitutional provision, phrased as it is, really means that every 
person who is twenty-five years of age and who has been for seven 
years a citizen of the United States and was when elected an in- 
habitant of that state in which he was chosen, is ehgible to be a 
member of the House of Representatives and must be admitted 
thereto even though he be insane or disloyal or a leper or a crimi- 
nal? Is it conceivable that the Constitution meant that crime 
could not disqualify? The whole spirit of the government re- 
volts against such a conclusion." 

The minority of the committee reported, however, against this 
view, declaring: " The adding by this House alone of a disqualifica- 
tion not established by law would not only be a violation of both 
the Constitution and the law, but it would be a most dan- 
gerous precedent which could hardly fail to 'return to plague 
the inventor. ' . . . What warrant have you, when the barriers 
of the Constitution are once broken down, that there may not 
come after us a House, with other standards of morality and 
propriety, which will create other qualifications with no rightful 
foundations? . . . Jt will no longer be a government of laws 
but of men. To thus depart from the Constitution and substitute 
force for law is to embark upon a trackless sea without chart or 
compass." ^ This view was also held by those who claimed that 
the proper way of getting rid of Mr. Roberts was to admit him to 
membership and then expel him under the right to eject by two- 
thirds vote; but the party of exclusion triumphed. 

The Constitution provides that no person holding any ofiice 
under the United States shall be a member of either house during 
his continuance in office. Under this provision several army 
officers have been excluded from the House of Representatives. 
For example, in 1803, Mr. John P. Van Ness, a Representative 
from New York, was appointed major of the mihtia under the 
authority of the United States in the District of Columbia, and 

^ It has been done, however, in only a few cases. 

^ Hinds, Precedents of the House of Representatives, Vol. I, pp. 5275. 

234 American Government and Politics 

the committee on elections in the House declared by unanimous 
vote that by his acceptance he had forfeited his seat. The practice 
of Presidents in frequently appointing members of the Senate and 
House as commissioners to negotiate treaties and make investi- 
gations has raised the question as to whether members of Congress 
can legally accept such positions. The judicial committee of the 
Senate in reviewing this matter came to the conclusion that "a 
member of a commission created by law to investigate and report 
but having no legislative, judicial, or executive powers, was not 
an officer within the meaning of the constitutional inhibition." ^ 
I Members of the House of Representatives are apportioned 
among the several states ^ according to their respective numbers, 
Icounting the whole number of persons in each state, exclusive of 
/Indians not taxed — subject, however, to the hmitation that each 
' state must have at least one Representative. Until 1842, Con- 
gress left the states to their own devices in election methods, but 
in that year the Apportionment Act provided, ''that in every 
case where a state is entitled to more than one Representative, 
the number to which each state shall be entitled under this 
apportionment shall be elected by districts composed of con- 
tiguous territory, equal in number to the number of Representa- 
tives to which said state may be entitled, no one district electing 
more than one Representative." It is now the rule of Con- 
gress to require that congressional districts shall be composed 
of "contiguous and compact territory containing as nearly as 
practicable an equal number of inhabitants," each district 
electing only one Representative, except in the case that, if the 
state legislature fails to carry out this exact provision, cer- 
tain or all of the members may be elected at large on a general 

Notwithstanding the intention of Congress to provide for sub- 
stantially equal congressional districts, our state legislatures have 
succeeded in creating, principally for partisan purposes, the gross- 

* Hinds, Precedents, Vol. I, p. 604. 

2 Alaska, Hawaii, and Porto Rico have one delegate each in the House 
of Representatives, and the Philippine Islands have two delegates. These 
delegates have seats in the House, and may speak there, but they have no 

' See Readings, p. 218. Congress has, in a few instances, specially au- 
thorized election on a general ticket. 

The Congress of the United States 235 

est inequalities. On comparing the total number of votes cast in 
congressional districts, we find the greatest discrepancies. For 
example, in 1906 a Mississippi district with a population of 
232,174 cast 1540 votes, while a New York district with a popu- 
lation of 215,305 cast 29,119 votes. In New York in 1906 there 
were 58,190 voters in the twenty-third congressional district, and 
only 13,862 voters in the ninth congressional district. These 
differences, of course, are not due entirely to the gerrymander, 
for representation is not based on the number of voters, but on 
the population. 

Even in the matter of population, however, there are great dis- 
crepancies. The fifteenth congressional district (Republican) 
in New York (1905) had 165,701 inhabitants, while the eighteenth 
(Democratic) had 450,000 inhabitants. These discrepancies 
are partially due to the necessity of recognizing units of local 
government such as counties, townships, and city blocks, in laying 
out the districts, but they are more especially due to the desire 
of the majority party in each state legislature to secure as many 
of its members as possible in Congress. 

This misuse of the power of creating congressional districts, 
known as "gerrymandering," ^ has been devised as a means by 
which a dominant party can make its own vote go as far as possible 
in congressional elections and cause its opponent's vote to count 
for as httle as possible. This is done by massing the voters of 
the opposing party in a small number of districts, giving them over- 
whelming majorities there, while allomng the dominant party to 
carry the other districts by very small minorities. Gerryman- 
dering is responsible for some curious political geography. There 
is, for example, the famous ''shoestring district" in one of the 
southern states where gerrymandering has been used to counter- 
act the effect of the negro vote. There was at one time in 
lUinois the " saddle bag " district comprising " two groups of coun- 

^ The term "gerrymander" originated in Massachusetts. It appears that 
Elbridge Gerry, a distinguished Democratic poHtician of his day, was in- 
strumental in redistricting his state in such a way that one of the districts 
had the shape of a lizard. When an artist saw the map of the new district, he 
declared, "Why, this district looks hke a salamander," and gave it a few 
finishing touches with his pencil. The editor, in whose office the map was 
hanging, replied, "Say rather a gerrymander," and thus an ancient party 
practice was given a new name. See Readings, p. 219. 


American Government and Politics 

ties at different sides of the state so connected as to crowd as 
many Democratic counties as possible into one district and thus 
secure Republican seats in nearby districts by eliminating the 
vote of hostile localities."^ The Democrats in Indiana by a 
shrewdly arranged gerrymander were enabled to elect, in 1892, 
eleven congressmen with a total vote of 259,190, leaving only two 
congressmen to the Republicans, who cast a vote of 253,668, thus 
requiring 126,834 Republican votes, as against 23,565 Demo- 
cratic votes, to elect one congressman.^ 

The district system under the gerrymander has frequently 
resulted in the grossest misrepresentation of party strength in the 



An illuslration of ''compact and contiguous territory.* 

*Reinsch, American Legislatures, p. 202. 

' Commons, Proportional Representation, 2d ed., p. 61. 

The Congress of the TJnited States 237 

House of Representatives. For example, in 1 894, the Republicans, 
with a vote of 5,461,202, elected 245 Representatives; the Demo- 
crats, with 4,295,748 votes, elected 104 Representatives, and the 
PopuHsts, with 1,323,644 votes, elected 7 Representatives, while 
the Prohibitionists, with 182,679 votes, elected none. In this 
election the RepubHcans, with 48.4 per cent of the total vote, 
elected 68.8 per cent of the members, while the Democrats, with 
38.1 per cent of the vote, elected 29.2 per cent of the members, 
and the Populists, with 11.7 per cent of the vote, secured only 
2 per cent of the members. Taking the vote as a whole on 
a strict basis of equality of representation, the RepubUcan 
majority of 134 should have been a minority of 7 as against all 
other parties.^ 

The term of the member of the House is two years — a short 
period which has received so much criticism recently that it is 
difficult for us to understand the necessity that led the authors 
of The Federalist to apologize for the action of the Philadelphia 
convention in not providing for annual elections. The system 
of biennial elections, coupled with the practice of not assembling 
a Congress until more than a year after its election, has had a 
most unfortunate effect upon the character of that body. Ordi- 
narily, when members take their seats,^ their term of office is 
practically half expired; and within a year, if they expect to con- 
tinue in Congress, they must enter into a campaign for renomina- 
tion and election. This may have a double effect. It diverts the 
attention and energy of the member from his ofiicial duties, and, 
if he is defeated, it leaves him disgruntled and more subject to 
pernicious influences. It is a well-known fact also that no mem- 
ber of Congress can exert a considerable influence during one 
term of service, since it requires a great deal of practical experience 
to discover the mysteries of congressional procedure and get a 
hearing from the leaders in the House. ^ On the other hand 
there is no provision for a dissolution of the House or recall of 
members, and long terms might result in Congress frequently 
misrepresenting the country. 

The time, place, and manner of holding elections for Represent- 

^ Commons, Proportional Representation, p. 58. It must be noted, how- 
ever, that the basis of representation is not the vote, but population. 
^ Unless there is an earUer special session. 
^Readings, p. 254. 

238 American Government and Politics 

atives may be prescribed by the state legislature subject to the pro 
vision that Congress may at any time by law make or alter such 
regulations. For almost a hundred years congressional elections 
were held at different times and according to the different methods 
prevailing in the various states — the old system of viva voce 
voting being retained for a long time in some commonwealths. 
At length, Congress, by laws passed in 187 1 and 1872, provided 
that congressional elections should be by ballot and that they 
should occur throughout the Union at the same time, that is, on 
the Tuesday following the first Monday in November. An 
exception to the uniformity rule allows a few states to hold 
their elections somewhat earher, according to their former 

Party machinery has been developed in every state for nominat- 
ing candidates to the House of Representatives. Where the 
older methods have not been overthrown by primary legislation, 
candidates are nominated by district conventions of delegates 
representing units of local government within the congressional 
districts, such as counties in the regions more thinly populated, 
and assembly districts, townships, or wards in the more thickly 
settled areas. In a large number of states, however, including 
Wisconsin, Nebraska, Oregon, Kansas, and Oklahoma,^ the con- 
vention system has been abolished altogether, and an official di- 
rect primary election is provided for each party. Any member of 
any party who wishes to be a candidate for Congress must have 
his name put on the party primary ballot by petition, and at the 
primary election the party voters are given the opportunity to 
select from among the several candidates on this ballot.^ Repre- 
sentatives-at-large are nominated by state conventions or by 
state primaries. 

The House of Representatives and the Senate are the judges 
of the election, returns,'and qualifications of their own members, 
and therefore contested elections are not determined by a judicial 
tribunal as in England. The House has three committees on 

' On the qualifications for voters for Representatives, see above, p. 162, 
and below, chap, xxii, and Readings, p. 399. They are merely the qualifica- 
tions requisite for electors of the most numerous branch of the state legisla- 
ture. 2 ggg below, chap. xxx. 

^ When a vacancy occurs in the House of Representatives by the death or 
resignation of a member, or in some other way, a special election is held. 

The Congress of the United States 239 

elections,* whose duty it is to investigate election contests. The 
law requires any person intending to contest an election to 
serve notice on the member whose seat he claims, and to specify 
the grounds upon which he expects to rely. The member whose 
seat is contested must answer. Copies of the papers are trans- 
mitted to the House, and the clerk makes up the records of the 
case, which he reports to the House. These are referred by the 
Speaker to one of the three committees on elections; testimony 
is taken; the contestants are given an opportunity to be heard, 
and to be represented by counsel ; and on the basis of the evidence 
and pleadings, the committee presents to the House a report, 
which is usually accepted.^ Inasmuch as each committee on 
elections is composed of a majority of member^ from the domi- 
nant party, a contested election, where the case is not too glaring, 
is quite likely to be decided in the interests of that party. 

The Senate 

The Constitution prescribes that there shall be two Senators 
from each state, and in the Amendment clause it provides that 
no state, without its consent, shall be deprived of equal represen- 
tation in the Senate. This rule of absolute equahty grew out 
of the fear of Maryland, Connecticut, and Delaware that the 
great commonwealths of New York, Pennsylvania, and Virginia 
would override them in federal matters; and out of apprehension 
entertained by the agricultural and slave-owning states that the 
numerical strength of the manufacturing and commercial states 
would lead to discriminating legislation. The result of this 
equahty of representation in the Senate is a most glaring violation 
of the democratic principle of distributing representation with 
some regard to population. Thus it comes about that nine 
eastern states, Maine, New Hampshire, Vermont, Massachusetts, 
Rhode Island, Connecticut, New York, New Jersey, and Penn- 
sylvania, with a population of over 21,000,000 (1900), have only 
eighteen Senators; while nine western states, Montana, Wyoming, 
Colorado, Utah, Idaho, Washington, Nevada, Oregon, and 
California, with a total population of less than 4,000,000, have 
the same number. New York, with over 7,000,000 inhabitants, 

*The Senate has one committee on elections. 

' The committee practically has the power of a court of law. 

240 American Government and Politics 

has two, while the nine western states, with a httle over half the 
inhabitants, have nine times the representation. Indeed, it is 
possible to select fifteen of the smaller states, with about 5,000,000 
inhabitants, possessing fifteen times the weight of the state of 
New York in the Senate. "The senatorial representatives of 
those 5,000,000 would lack only a single vote of the number 
necessary to defeat some great treaty which the Senators of 
the other 70,000,000 might support. States having less than 
one-sixth of the population choose a majority of the entire Senate, 
while more than five-sixths of the people of the country are 
represented by a minority of that body. The state of Nevada 
under the last census had less than 43,000 people. If New York 
were permitted to have the same proportional representation in 
the Senate, it would have some 350 Senators."^ In practice, 
however, we do not find an alignment of the Senators of the 
small states against those of the large states. 

The qualifications of the Senator are fixed by the Constitution. 
He must be not less than thirty years old, an inhabitant of the 
state for which he is elected, and a United States citizen of nine 
years' standing. The same question has arisen here as in the 
case of the House of Representatives,^ whether the Senate, under 
its power to judge of the qualifications of its members, can add 
any to those fixed in the Constitution. The correct answer to 
this question seems to have been made by Mr. Hopkins, in 
a speech of January 11, 1907, on the proposition to exclude 
Mr. Reed Smoot of Utah, on the ground that he was a polyg- 
amist. Mr. Hopkins says that neither the Senate, Congress, 
nor a state can add to the qualifications prescribed by the 
Constitution; that the power given to the Senate is not to create 
Senators, but to judge whether they have the qualifications pre- 
scribed by the Constitution; that the Senate has no constitu- 
tional authority to inquire into the antecedents and early* career 
and character of a Senator who applies for admission with the 
proper credentials of his state; that no Senator has ever been 
denied a seat in the Senate of the United States because of any 
lapse of career prior to his election by the state; and that the 
Senate should content itself with the exercise of its power to 

' Reinscli, Readings, p. 139. 

- Above, p. 233. It will be noted that the Senate did not adopt the prac- 
tice of the House, which was regarded as unconstitutional in many qua rters. 

The Congress of the United States 241 

expel a member for disorderly behavior whenever his conduct 
is such as to lower the standard of that body or bring it into 

Previous to 19 13, Senators were elected by the state legis- 
latures, and, until 1866, Congress left the several common- 
wealths to their own devices as to procedure ; but in that year, 
Congress, under its power to determine the time and manner of 
electing Senators, prescribed a uniform method to be followed 
by all legislatures. It provided that the legislature, immediately 
preceding the expiration of the senatorial term, should proceed 
to elect the member on the second Tuesday after its meeting.^ 
Each house first took a viva voce vote separately and if any 
person received a majority of the whole number of votes cast in 
each house, he was declared elected ; in case no person received a 
majority at the separate balloting, or in case either house had 
failed to act as required by law, the two houses then met in 
joint assembly and elected by viva voce vote and majority count. 
Failing an election on the first day, the joint assembly then met 
every succeeding day at noon and cast one ballot until a Senator 
was elected.^ 

Notwithstanding this formal provision of law, United States 
Senators were really selected by party caucus — where the 
system of direct nominations had not been adopted. That is, 
whenever there was a vacancy in the Senate, or the term of the 
Senator was about to expire, it was the practice of the members 
of the party having a majority in the legislature which was to 
elect to meet in caucus and agree in advance upon the candidate, 
whose nomination was then merely ratified by the formal vote 
in the legislature. 

"Deadlocks" were of frequent occurrence, however, in our 
state legislatures. One of the most famous occurred in the 
Pennsylvania legislature in 1899, when, on January 17, it began 
balloting for the purpose of selecting a successor to Senator 
Quay, cast daily ballots until April 19, and then adjourned the 
following day without having effected an election. A still 
longer and more notorious contest was waged in Delaware by 

* Readings y p, 221. , 

2 The same method of election was followed in the case of a vacancy caused 
by death or resignation. The certificate of election had to be sent by the 
governor of the state to the President of the United States Senate. 


242 American Government and Politics 

Mr. J. E. Addicks, whose fight in the legislature lasted, with 
intermissions, from 1895 to 1903. 

The disgraceful conflicts in state legislatures when deadlocks 
occurred, the extensive use of money in elections by rich men, 
who, all too frequently, bought their way into the Senate, and 
the growing belief, whether justified or not, that the Senate 
represented the "plutocracy" of the country, contributed to 
accelerate a movement for direct election of Senators by popular 
vote. This proposal had been made in Congress as early as 
1826 ; it was favored by President Johnson, and it was steadily 
pressed forward in the House of Representatives during the last 
quarter of the nineteenth century. In 1893, it received the 
requisite majority of two-thirds in the lower chamber, but it 
met death in the upper house. 

Three more times the House passed the resolution, but the 
Senate remained obdurate. Eloquent speeches were made 
against it by leading men like Senator Hoar, of Massachusetts. 
Mr. Hoar declared that popular election would transfer the seats 
of power to "the great cities and the masses of the population," 
and that it would "result in the overthrow of the whole scheme 
of the Senate and in the end the whole scheme of the national 
Constitution as designed by the framers." He scorned the idea 
that the Senate had been a citadel of privilege and asserted that 
on the contrary it had been the real guardian of liberty while 
resisting the popular passions of the House. 

The refusal of the Senate to accede to the proposal only 
increased the popular belief in the desirability of the change. 
The Populist platform of 1892 declared in favor of it; the 
Democratic party added its approval in its official programme of 
1900 and in succeeding platforms ; and in 1908 Mr. Taft, in his 
acceptance speech, stated that he was personally in favor of it, 
although the principle was not in the platform of his party. The 
legislatures of more than two-thirds of the states passed resolutions 
in support of popular election and many joined in asking Congress 
to call a convention to submit the amendment to the states. 

Many states refused to wait on the tardy action of the amend- 
ing process of the federal Constitution, and proceeded to ac- 
complish the desired result by applying the direct primary ^ to 

^ The history of the movement for popular election of Senators up to 1905 
is concisely summarized by Professor G. H. Haynes in the Political Science 

The Congress of the United States 243 

the nomination of candidates for the Senate and in one way or 
another inducing the state legislatures to accept the popular 
choice. By 191 2 United States Senators were nominated by 
primaries ^ in the following states : Alabama, Arkansas, Cali- 
fornia, Florida, Georgia, Idaho, Iowa, Kansas, Kentucky, 
Louisiana, Maryland, Massachusetts, Michigan, Mississippi, 
Missouri, Nebraska, Nevada, New Jersey, North Dakota, Ohio, 
Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, 
Texas, Virginia, Washington, and Wisconsin. The laws for 
accomplishing this radical reform (which was incidentally 
contrary to the letter and spirit of the federal Constitution) 
varied widely in the different states ; but under all of them the 
legislature was supposed to ratify the will of the voters expressed 
at the- polls. 

The popular election of Senators under the several state laws 
soon began to make a change in the attitude of the Senate itself 
toward the proposed reform, and at length in 191 1 a resolution 
in favor of the reform passed that body. Some differences arose 
with the House of Representatives over the extent of the control 
to be exercised by the federal government over senatorial elec- 
tions on account of the objection of southern members to federal 
interference and it was not until 191 2 that the contest was ended 
by the final passage of the resolution by Congress. The vote 
in the lower house, taken in April, was 296 in favor and 16 
against ; the Senate shortly afterward passed the resolution by 
a safe margin. The resolution was speedily ratified by the req- 
uisite number of state legislatures, and was declared in force, 
on May 31, 1913. 

j The amendment provides that the two Senators from each 
ktate shall be "-elected by the people thereof for six years. . . . 
frhe electors in each state shall have the qualifications requisite 
for electors of the most numerous branch of the state legis- 
lature. When vacancies happen in the representation of any 
state in the Senate, the executive authority of the state shall 
issue writs of election to fill such vacancies : Provided that the 
legislature of any state may empower the executive thereof to 
make temporary appointments until the people fill the vacancies 
by election as the legislature may direct." 

Quarterly for December, 1905 ; see also his volume on the subject; for both 
sides o» -he question, see Readings, p. 226. ^ See below, chap. xxx. 

244 American Government and Politics 

Under this amendment it was necessary for the states to make 
provision for the nomination of candidates. Those common- 
wealths having direct primary laws applicable to Senators simply 
continued them in force. The remaining states retained the 
convention system. If any state fails to make the requisite 
provision for the popular election of Senators, Congress may act 
under Article I, section 4, of the Constitution. 

The term of the Senator is fixed at six years, and in practice 
Senators are far more frequently reelected than members of the 
House of Representatives. At least five Senators, Benton of Mis- 
souri, Morrill of Vermont, Allison of Iowa, Jones of Nevada, and 
John Sherman of Ohio, served tliirty years or more. The ten- 
dency toward reelection seems to be more marked in the smaller 
states, perhaps because competition is not so keen, and it is easier 
for a Senator to maintain his influence over the legislature. 

The terms of all the Senators do not expire at any one time, for 
the Senate is a continuous body, one-third of the members going 
out every two years, and, except in extraordinary cases arising 
from deadlocks, resignation, or death, it seldom happens that a 
state legislature is called upon to elect two Senators at the same 
time. At the first session of the Senate in 1789, that body di- 
vided its membership by lot into three classes, the seats of the 
first class being vacated at the expiration of the second year, of 
the second class at the expiration of the fourth year, and of the 
third class at the expiration of the sixth year, thus making way 
for a renewal of only one-third of the Senate biennially. 

Members of the Congress of the United States are entitled 
to certain privileges by virtue of their position. First among 
these may be reckoned compensation. The Constitution pro- 
vides that Senators and Representatives shall receive a com- 
pensation for their services, to be ascertained bylaw and paid out 
of the treasury of the United States. Up until 1855, it was the 
custom to pay members a certain per diem allowance; ^ in that 
year a salary of $3000 per annum was voted; this amount was 
raised to $5000 in 1865; and increased in 1873 to $7500 — an 
increase which met such a public protest that it was repealed at 
the next session. In 1907, however, the salary of Senators and 
Representatives was again fixed at $7500 per annum, to which 
^ A salary was voted in 1816, but the law was speedily repealed. 

The Congress of the United States 245 

is added an allowance for clerk hire, stationery, and travelling 

The second privilege enjoyed by members of Congress is free- 
dom from arrest during their attendance on the sessions of their 
respective houses, and in going to and returning from the same, 
in all cases except treason, felony, and breach of the peace. This 
privilege, as Story points out, exempts Representatives and 
Senators from all processes, the disobedience of which is pun- 
ishable by imprisonment. That is, a congressman, during the 
period mentioned above, cannot be compelled to testify in a 
court, serve on a jury, or respond to an action brought against 
him. The term "breach of the peace," however, extends to 
"all indictable offences, as well those which are in fact attended 
with force and violence as those which are only destructive to 
the peace of the government"; and, therefore, the member of 
Congress really enjoys no exemption from the ordinary processes 
of the criminal law. In going to and coming from Congress the 
member is allowed reasonable delays and reasonable deviations 
from the nearest course. 

The third privilege enjoyed by members of Congress is free- 
dom of speech during debate. The Constitution expressly pro- 
vides that for any speech or debate no member of either house 
shall be questioned in any other place. This famous right, sup- 
posed by some persons to have been designed to guarantee full 
and free discussions of public matters in debate, is really derived 
from the practices of the English ParHament, where it was origi- 
nated to protect the members against arbitrary arrest for criti- 
cism of the king. According to Professor Ford, it was placed in 
the American Constitution to protect members against respon- 
sibiUty to their constituents.^ The effect of this privilege is to 
free the members from the liability to prosecution for libel or 
slander for anything said in Congress, or in committees, in official 

^ In 1907 Congress enacted a law forbidding corporations to make con- 
tributions to campaign funds in federal elections. In 191 o and 191 1 Congress 
enacted laws requiring candidates for federal offices to make public their 
receipts and expenditures both before and after primaries and elections. 
A candidate for the House of Representatives may expend $5000 and a 
candidate for the Senate may spend $10,000. Apparently their friends may 
spend an unlimited amount. The American Year Book (191 1), p. 189. 

"^ Rise and Growth of American Politics, p. 63. 

246 American Government and Politics 

publications, or in the legitimate discharge of their legislative 
duties. Members of Congress also constantly act upon the 
supposition that the privilege includes the right to circulate 
their speeches, not only among their own constituents, but any- 
where throughout the United States. 

The internal organization of each house of Congress is limited 
by certain provisions of the Constitution.^ The Vice-President 
of the United States is made the presiding officer of the Senate; ^ 
neither house can expel a member for a breach of its rules except 
on a two- thirds vote, a quorum being present; each house must 
keep a journal of its proceedings and publish the same from 
time to time, except such parts as it may deem necessary to keep 
secret; if one-fifth of the members present in either house demand 
a record of the yeas and nays upon the journal with regard to any 
question, that record must be taken by roll-call. Subject to 
these limitations, each house has the right to elect its own 
officers, compel the attendance of members, and prescribe rules 
of procedure and discipline. 

The power of Congress, in the course of its proceedings, to 
interfere with private citizens — a power which has, in times past, 
caused many serious constitutional conflicts in England — is 
clearly Umited by our Constitution: neither house has any 
general power to punish outsiders for contempt, for such a power 
is judicial in its nature.^ Whenever the examination of private 
citizens, however, is necessary to the performance of regular 
legislative duties, it would appear that Congress may require the 
attendance of witnesses, and compel them to give testimony.* 
Each house may also punish its own members for disorderly be- 
havior, and, with the concurrence of two- thirds, expel a member; 
but it has been held by the Court that the power of Congress to 
punish its members or private citizens is confined to the session 
in which the condemnation occurs, and cannot extend beyond 
imprisonment during the remainder of that session. 

The quorum necessary to do business in each house ^ is fixed 

^ Burgess, Political Science and Constitutional Law, Vol. II, p. 56. 
^ He has no vote save in case of a tie. 
' Readings, p. 138. 

* Reinsch, American Legislatures, p. 176. 

^ When the House is once organized, the quorum consists of a majority of 
those members, chosen, sworn, and living, whose membership has not been 

The Congress of the United States 247 

by the Constitution at a majority of all the members, but a smaller 
number may adjourn from day to day, and are authorized to 
compel the attendance of absent members. This question of 
the quorum is no formal matter. It is necessary to fix the number 
at a majority of the members in order to prevent "snap" legisla- 
tion by minorities, but the rule is often attended with serious in- 

For a long time it was a common practice for the minority 
party in the House of Representatives, whenever it desired to delay 
business, to refuse to answer the roll-call, and thus frequently 
compel an adjournment, on the ground that there was no quo- 
rum present, until a quorum could be mustered. To stop this 
"filibustering," as these dilatory tactics were called. Speaker 
Reed, in January, 1890, held that members present in the House 
and declining to answer should be counted present in determin- 
ing the question of a quorum. Shortly afterward the House 
embodied this principle in a rule authorizing the clerk, on de- 
mand of a member or at the suggestion of the Speaker, to count 
as present those physically present but refusing to answer the 
roll-call. The present method of marshalHng a quorum and 
dealing with delinquent members is illustrated by this brief ex- 
tract from the Congressional Record: — 

Mr. Williams: Mr. Speaker, I make the point of order that there 
is no quorum present. . . . 

The Speaker : The Sergeant-at-Arms will close the doors and bring 
in the absentees, the clerk will call the roll, and those in favor of the 
passage of the bill will, as their names are called, answer 'aye,' and 
those opposed will answer 'no,' and those present and not voting will 
answer 'present.' . . . 

Assistant Sergeant-at-Arms Pierce: Mr. Speaker, in accord- 
ance with the rules of the House and the warrant of the Speaker, I 
present at the bar of the House, under arrest, Mr. Buckman and Mr. 

The Speaker (pro tempore) : The gentlemen will be noted as pres- 
ent and discharged from arrest. 

. . . Does the gentleman from Minnesota desire to vote? 

Mr. Buckman: I vote 'aye.' ^ 

vacated by resignation or by the action of th*e house. Hinds, Precedents ^ 

Vol. IV, p. 62. When a point of order is made with regard to the quorum it 

must be that no quorimi is present, not that no quorum has voted. Ihid., p. 79. 

^ Congressional Record, Vol. XL, part 8, p. 7585 (59th Cong., ist Sess.). 

248 American Government and Politics 

The Constitution requires an annual session of Congress, and 
provides that it shall begin on the first Monday in December, 
unless Congress, by law, shall appoint a different day. Each 
Congress, therefore, has normally two sessions. The first, 
known as the long session, begins in December of each odd 
year, 1923, 1925, 1927, etc., and extends theoretically until 
the following December, though as a matter of practice it is 
usually adjourned sometime in the spring or summer — in 1890 
the long session was not adjourned until the first of the following 
October. The second session of each Congress begins in Decem- 
ber of each even year, 1922, 1924, 1926, etc., and extends until 
the following March 4. Every Congress, therefore, expires 
at noon on March 4 of each odd year, thus giving the Presi- 
dent at the very opening of his administration a new Congress. 
By postponing the session until autumn the President has time 
to prepare for his legislative duties. 

It will be noted that, according to this arrangement, a member 
of the House of Representatives does not take his seat until more 
than a year after his election ; that is, he is elected in November 
of the even year, and, unless a special session is called, does not 
begin his legislative work until one year from the December 
immediately following. Thus it happens that an expiring House 
lasts for about four months after the election of the members of 
the new House, and an important measure may be passed by a 
party which the country has voted down at the preceding elec- 
tion. Congress may, accordingly, enact laws opposed to the 
latest expression of popular will. "Under the present law," 
said Mr. Shafroth, formerly a member of Congress, "a Repre- 
sentative in Congress who has been turned down by the people 
legislates for that people in the second regular session. A man 
who' has been defeated for reelection is not in a fit frame of mind 
to legislate for the people. There is a sting in defeat that tends 
to engender the feeling of resentment, which often finds expression 
in the vote of such members against wholesome legislation. 
That same feeUng often produces such a want of interest in pro- 
ceedings as to cause the members to be absent nearly all the 
second session. . . . It is then that some are open to propositions 
which they would never think of entertaining if they were to go 
before the people for reelection. It is then that the attorney- 
ship of some corporation is often tendered, and a vote is after- 

The Congress of the United States 249 

ward found in the Record in favor of legislation of a general or 
special character favoring corporations." 

Special sessions of Congress may be called by the President 
under his power to convene either house or both of them on 
extraordinary occasions. Unlike the governors of many states, 
however, he cannot limit the special session to the consideration 
of any particular matters. Special sessions have been held many 
times, the most noteworthy occasion being the call of July 4, 1861, 
to prepare for the Civil War. The special session called by 
President Wilson in the spring of 19 19 lasted until the opening 
of the regular session in December. The Senate is often called at 
the beginning of a new administration to confirm appointments. 

No provision is made in the Constitution whereby members 
of Congress can be instructed by their constituents, and it is held 
by many American publicists that a representative, though chosen 
by a district, is in reality a member of a national legislature 
bound to act on broadly national grounds. In practice, however, 
this theory is not always observed, for Senators and Representa- 
tives are often instructed by the legislatures of their states in 
solemn resolutions.^ There is, of course, no penalty for violating 
these instructions, because the state legislature cannot compel 
the resignation of a member of Congress. Nevertheless every 
congressman is extremely sensitive to the wishes of the leaders 
of his party in his community. 

The difference in the organization of the two houses makes it 
necessary to say a few words by way of comparison. ^ The Senate 
is, of course, the smaller body, being composed of ninety-six 
members, as against 435 members in the House of Representa- 
tives. The Senate, generally speaking, is also composed of older 
men and men of wider political experience. The Senators as a 
rule have been in some branch of state government or in the 
House of Representatives. As the term of service is longer 
and the chances for reelection greater, the Senate usually con- 
tains a relatively larger number of political experts, acquainted 
not only with the problems of law-making, but also with the 
inner workings of the federal government. The influence of the 
Senators is also augmented by their position as party leaders 

^ Readings, p. 233. 

' For the original purpose of the Senate, see Readings, p. 222. 


250 American Government and Politics 

within their respective states. They have, as we have seen, a 
large power in appointing to federal office; and sometimes they 
are able to construct political machines of extraordinary strength.^ 
They usually have great weight in selecting delegates to national 
party conventions, and in fact they are largely responsible for 
the predominance of the federal office-holding element in those 
assemblies. This command over party resources within their 
states enables the Senators to bring more or less pressure on the 
Tnembers of their party in the House of Representatives. When 
the state organization, in close touch with its Senator or Senators, 
adopts a poUcy, it is usually wise for the member of the House 
of Representatives, if he expects further party favors, to fall in 
Une with the policy.^ 

This connection between the Senate and political leadership 
has resulted in bringing into that body a large number of men 
whose principal claim to the office is the power to manipulate 
the state political machinery. "The dominating influence of the 
Senate in this matter was never more clearly shown than in 
the Republican convention of 1900. Both the temporary and 
the permanent chairmen were Senators; the four nomination 
speeches were made by Senators; and there were seven Senators 
on the most important committee, that on Resolutions, which 
drafted the national platform. The National Committee ap- 
pointed by the convention contained five Senators, among them 
Hanna (as chairman) and Quay. The advisory council appointed 
by the National Committee had three senatorial members, 
among them Piatt and Depew; while Hanna, Quay, and Scott 
were members of the Executive Committee. So well organized 
was the senatorial group at this time, that the selection of the 
presidential candidate was largely determined by their discre- 
tion, both in 1896 and in 1900." ^ 

The political power of the Senate is greatly augmented by its 
control over treaties and appointments.^ 

The Senate also derives no little influence through the connec- 
tion of some of its members with those powerful economic inter- 
ests which have operated largely through the extra-legal poht- 

* Readings, p. 128. 

^ See Article by H. L. Nelson, "The Overshadowing Senate," Century, 

Vol. LXV, p. 513- 

' See Reinsch, American Legislatures, p. 121. ^ See above, pp. 191, 196. 

The Congress of the United States 251 

ical organizations of the state.^ "It is natural," says Professor 
Reinsch, ''that the Senators should look upon political matters 
from the vantage ground of their special experience and of the 
interests with which they have been connected. There need 
be in this no suspicion of direct corruption ; there may, in fact, 
often exist a conviction of absolute impartiality. Yet their 
attitude of mind and of temper is nevertheless characterized by 
that conservatism — often exaggerated — of the man to whom 
is intrusted the management of great economic interests. . . . 
There are Senators whose controlling purpose seems to be to 
protect and advance the interests of particular combinations of 
capital without any regard to the broader principles of states- 
manship or even to their plain duty as representatives of the 
commonwealth." ^ On the other hand, President Woodrow 
Wilson beheves that the Senate ''represents the country, as 
distinct from the accumulated populations of the country, much 
more fully and much more truly than the House of Representa- 
tives does." ^ 

How far the above conclusions concerning the character of 
the Senate, written during the period of election by state legis- 
latures, now hold good is a matter of opinion. Signs are not 
wanting, however, that popular election of Senators has worked 
a marked change in that house. Candidates for the Senate under 
a system of direct election must perforce make a popular cam- 
paign, and the type of man who is most efficient in formulating 
programmes that will arouse public sentiment will undoubtedly 
win in a majority of cases over the more reserved and less re- 
sourceful leader. The quiet and thoughtful man of larger in- 
tellectual powers is likely to be overborne by the whirlwind 
campaigner or astute manipulator of federal patronage. 

Whatever may be the conclusion on this point, there can be no 
doubt that the Senate is assuming an ever larger share in shaping 
federal legislation. The almost unlimited debate in the Senate 
enables each member to hold up legislation, and especially ap- 
propriation bills, in favor of any particular interest which he may 
represent. Though the Constitution provides that revenue bills 
shall originate in the House of Representatives, as a matter of 

1 See Goodnow, Politics and Administration, pp. 251 fif. 

^American Legislatures, p. 124, 

5 Constitutional Government in the United States, p. 116. 

252 American Government and Politics 

fact the Senate, as we shall see, has an equal, and in many in- 
stances a far greater power. As a matter of practice, also, the 
Senate' Ttsually increases the House appropriations, thus violat- 
ing the ancient principle that burdens should be laid by those 
who are nearest to the tax-payers. The technical skill of the 
Senators, their long experience, and their superior legal talents 
frequently enable them to overshadow the House as a law- 
making body. Furthermore, owing to their relatively small 
number, they are able to give to measures more careful consid- 
eration ; and for this reason some of the best of our legislation, 
at least on the technical side, comes from the Senate rather than 
from the House. 



The Congress of the United States is limited to the exercise 
of the powers enumerated in the Constitution and the use of the 
means necessary and proper to carry them into execution. In 
this regard, it stands in shcxp contrast to the Enghsh Parliament 
— King, Lords, and Comn^ons. The power and jurisdiction of 
that great assembly, as Blacks tone tersely puts it, "is so tran- 
scendent and absolute that it cannot be confined, either for causes 
or persons, within any bounds. ... It hath sovereign and 
uncontrolled authority in making, confirming, enlarging, restrain- 
ing, abrogating, repealing, reviving, and expounding laws con- 
cerning matters of all possible denominations, ecclesiastical, or 
temporal, civil, military, maritime, or criminal. ... It can 
regulate or new model the succession to the crown, as was done 
in the reign of Henry VIII and William III. It can alter the 
estabhshed religion of the land, as was done in a variety of 
instances in the reigns of Henry VIII and his three children. It 
can change and create afresh even the constitution of the king- 
dom and of ParHaments themselves, as was done by the act of 
Union and the several statutes for triennial and septennial elec- 
tions. It can in short do everything that is not naturally impos- 
sible, and therefore some have not scrupled to call its power, by 
a figure rather too bold, the omnipotence of ParHament. True it 
is, that what Parliament doth, no authority upon earth can undo." 

Compared with this omnipotence, the powers conferred upon 
Congress by the Constitution seem few indeed; and, as a matter 
of fact, most of the great questions which have agitated Great 
Britain during the last century — the extension of the suffrage, 
the regulation of factories and labor, the provision of popular 
education, the estabUshment of old-age pensions — do not come 
within the range of federal authority at all, but are consigned 
to state legislatures and constitutional conventions. Neverthe- 
less, Congress enjoys no slight power, and the swiftly multiply- 
ing interstate relations, over which it has a wide authority, ' 


254 American Government and Politics 

are rapidly extending its control to social and economic matters 
of the most fundamental character. 

This restriction of legislative power by written law has a pro- 
found influence on the debates and deUberations of Congress, 
because every important controverted measure before that body 
is sure to be declared unconstitutional by some one. A measure 
may be wise, expedient, and even necessary, but if it is clearly 
outside the powers of the legislature, it is useless to discuss it. 
If, however, there is any doubt as to the constitutionaHty of a 
measure, it is sure to be the subject of searching inquiry and 
exposition on the part of the skilled lawyers in Congress. Some 
of the greatest legislative discussions in our national history, 
including the celebrated Webster-Hayne debate on Footers 
Resolution, have been over questions of constitutionality. It 
often happens that the original proposal itself is lost sight of in 
the tortuous windings of historico-legal speculations, as was 
indeed the case in the controversy just mentioned. The ten- 
dency to lengthy constitutional disquisition is especially marked 
in the Senate, where debate is less restricted, and there are more 
lawyers of distinction than in the House. These discussions are 
often of a high order and of undoubted value iti expounding 
the terms of the Constitution, but they are also quite as often 
mere displays of black-letter lore or personal vanity. More 
than once the country has been impatient at these diffuse lucu- 
brations, rightly suspecting that many opposing members had 
first come to their conclusions on the merits of the bill under 
consideration, and then sought constitutional objections to it. 
More than once, also, these debates have only added confusion 
to what seemed perfectly clear and simple. "If we must wait 
until the great constitutional lawyers agree upon any subject," 
exclaimed Mr. Bourke Cockran in the House, "it is plain that 
we would never take a step in any direction. We would stand 
paralyzed at the threshold of every legislative enterprise, amazed 
and bewildered — puzzled to distinguish amid the din of their 
vociferation how much of it is advice to us and how much of it 
is denunciation of each other. I defy any man to define Congress 
itself according to the constitutional lawyers, after he has read 
three of their speeches." ^ 

^ Reinsch, Readings, p. 256. 

The Powers of Congress 255 

r Broadly speaking, there are three views of the Constitution 
/ which may be taken by any member of Congress in deciding 
upon a controverted constitutional question. The first of 
these is known as "strict construction," — a view which would 
restrict the powers of Congress to the bare letter of the written 
instrument, and confine the means of carrying its powers into 
execution to those absolutely and imperatively necessary. This 
theory of interpretation was appKed by Jefferson in his opinion 
on the constitutionahty of a federal bank,^ and was later used 
with great acumen by his party as the moral justification for 
their opposition to the FederaUsts.^ During the long contro- 
versy over slavery, it was the chief reliance of southern statesmen 
in resisting the northern pressure on Congress to use its powers 
as fully as possible in restricting the spread of slavery to the 
territories. With the disappearance of the old party antagonisms 
since the Civil War, there have not been many occasions to call 
the strict construction view into party services. The Democratic 
party, it is true, occasionally appears to oppose the encroach- 
ments of federal authority, but its concrete legislative proposals 
can hardly be regarded as consonant with a narrow conception 
of the Constitution. 

The second view of the powers of Congress, originally assumed 
by the Federalist party and taken on various occasions by all 
\ parties, as their interests have required, is that of "Uberal con- 
struction." The adherents to this doctrine deny that there is 
any warrant in the Constitution for taking the narrow view, and 
] they lay great stress on that clause of the Constitution which 
I authorizes Congress to make all laws necessary and proper for 
I carrying into execution the powers expressly enumerated. They 
I accordingly take a generous view of the enumerated powers, and 
\ then interpret the words "necessary and proper" to mean 
\" highly useful and expedient."^ Under this construction, a 
national bank was created, American industries have been pro- 
tected, national highways built, paper money issued, and irriga- 
tion, reclamation, and other large schemes of public improvement 
undertaken.* Only under this conception of the Constitution has 
the federal government been made in any way adequate to the 
exigencies of a national system of economy. 
^ Readings, p. 237. 2 /j^,^ p. g^^ 

^ Ibid., p. 240. * Ibid., pp. 66 and 241. 

256 American Government and Politics 

The third view of the proper attitude to be taken by Congress 
in considering the constitutionaUty of any legislative proposition, 
and one which has been quite generally taken, consciously or un- 
consciously, by the liberal constructionists, was thus stated by 
Mr. Bourke Cockran, during a debate in the House: "It seems 
to me that the duty of Congress is to examine closely the con- 
dition of the country and keep itself constantly informed of every- 
thing affecting the common welfare. Wherever a wrong is found to 
exist with which the nation can deal more effectively than a state, 
it is the business of Congress to suggest a remedy. . . . Our first 
step must be in the direction of legislation. The only way we can 
ascertain definitely whether a law which we believe will prove effec- 
tive is constitutional or unconstitutional is not by abandoning 
ourselves to a maelstrom of speculations about what the Court 
may hold or has held on subjects more or less kindred, but to 
legislate, and thus take the judgment of the Court on that specific 
proposal. We can tell whether it is constitutional or unconstitu- 
tional when the Court pronounces upon it and not before. Even 
if the .Court declares it unconstitutional, its decision will not re- 
duce us to helplessness. When it drives us from establishing a 
remedy by legislation, it will, by that very act, direct us to propose 
a remedy by constitutional amendment. Having framed a suit- 
able amendment and proposed it to the legislatures of the states, 
our duty will have been accompHshed. The final step toward full 
redress will then be with the bodies most directly representative 
of the people affected by the wrong." * 

Although the important functions of Congress will be treated 
more in detail in the chapters which follow, it seems desirable to 
give here, even at the risk of some repetition, a general survey of 
all the powers vested in our national legislature. Such a presenta- 
tion does more than satisfy the theoretical requirements of an 
academic presentation of the subject. A general view of all the 
powers of Congress is simply indispensable to an understanding 
of current politics, for questions > of constitutionality underlie all 
of our political controversies over the powers of the federal and 
state governments, over centralization and state rights, over 
national and local reforms. Such a survey is rendered especially 
necessary by the altogether too widespread confusion which 
^ Reinsch, Readings, p. 256. 

The Powers of Congress 257 

exists among citizens as to the nature of the federal system. 
Every student of American government should have definitely 
and clearly fixed in mind the various powers conferred upou 
Congress — not as mere rules of law, but as great principles of 
political practice controlling the national legislature in its mani- 
fold relations to the life of the people in every territory and 
commonwealth of the American empire. 

I. In relation. to, revenue and expenditures, Congress has the 
power to lay and collect taxes, duties, imposts, and excises, and to 
appropriate rribhey," in order to pay the debts and provide for 
the common defence and general welfare of the United States.* 
This power is not unlimited. Indirect taxes, duties, imposts, 
and excises must be uniform throughout the United States 
—that is, must be imposed at the same rate on the same 
article wherever found.^ Poll taxes, taxes on real and personal 
property, and other direct taxes,^ except income taxes from 
all sources, must be apportioned among the states according to 
population. Congress cannot tax exports from a state, and 
under an interpretation by the Supreme Court cannot tax 
the "necessary instrumentalities" of a state government, such 
as the salaries of state and local officers, and state and municipal 
bonds. Appropriations for the army cannot be made for a period 
of more than two years, but otherwise the power of Congress to 
spend money is only controlled by its discretion.* 

II. In respect to national defence,^ the powers of Congress 
are practically unlimited, except by the provision that the Presi- 
dent shall be commander-in-chief and that military appropriations 
shall not be made for a greater period than two years. Congress 
can raise and support armies, create and maintain a navy,- and 
provide for the organization and use of the state militia. Con- 
gress also declares war, grants letters of marque and reprisal® 

* See below, chap, xviii. 

^ Readings, p. 323. 

3 /6w/., pp. 327, 328. 

^ The account given here is based largely on Burgess, Political Science and 
Constitutional Law, Vol. II, chap. vii. 

^ Below, chap. xvii. ! 

^ "Privateering" (among the powers concerned) was abolished by the 
Declaration of Paris in 1856. While the United States did not sign that 
Declaration, it no longer grants letters of marque and reprisal, 

258 American Government and Politics 

authorizing officers or orivate parties to capture property and 
persons subject to a foreign power; and makes rules concerning 
captures on land and sea. 

The question of adequate military defence was raised and care- 
fully discussed at the time of the adoption of the federal Consti- 
tution. Numbers 2-5 of the Federalist are devoted to the " dan- 
gers from foreign force and influence." The Constitution was 
drafted with such dangers in view. Accordingly Congress can 
call every able-bodied man into the national service. This 
power was demonstrated by the passage of the draft acts of 1917 
and 191 8. When the constitutional question was raised in the 
Supreme Court, the answer was clear : such measures are within 
the scope of the authority conferred upon Congress (245 U. S. 
366). There also is no limit to the amount of money which 
can be appropriated for military purposes. Moreover, the states 
are subject to the federal government, for they can keep no stand- 
ing army or ships of war in time of peace without the consent 
of Congress. In answer to the charge that such an unlimited 
power might lead to despotism, the defenders of the Consti- 
tution urged: "With what color of propriety could the force 
necessary for defence be limited by those who cannot limit the 
force of offence? If a federal constitution could chain the am- 
bition, or set bounds to the exertions of all other nations, then, 
indeed, it might prudently chain the discretion of its own govern- 
ment and set bounds to the exertions for its own safety." ^ 

III. In respect to commerce and business,^ Congress may 
regulate commerce with foreign countries, among the several 
states, and with the Indian tribes; make uniform laws on the 
subject of bankruptcy throughout the United States; fix the 
standards of weights and measures; protect authors and invent- 
ors by a system of patents and copyrights; and estabhsh post- 
offices and post-roads. Commerce not only includes the trans- 
portation of commodities; it embraces traffic and intercourse 
in all of its important branches, such as the transportation 
of passengers, the transmission of telegraph messages, and 
the carrying of oil through pipe lines.^ It i^ sometimes 
stated that the power of regulating interstate and foreign 

^ The Federalist, No. XLI. 2 See below, chap. xix. 

3 Readings, p. 343. 

The Powers of Congress 259 

commerce is vested exclusively in Congress, but the difficulty of 
determining when a stale law constitutes such a regulation is so 
great that the mere statement does not carry any very concise 
information.^ The power of Congress over bankruptcy is not 
exclusive; the states may legislate on the subject. The federal 
law, however, takes precedence in case of a conflict with the pro- 
visions of a commonwealth law, and Congress by an act of 
1898 has covered the entire domain of bankruptcy. 

With regard to weights and measures Congress could, if it saw 
fit, establish a uniform metric system throughout the United 
States, but it has only gone so far as to make the use of this system 
lawful, not obhgatory.^ Meanwhile the regulations of the various 
states prevail, although the federal government aids in securing 
scientific exactness by maintaining in the Department of Com- 
merce an important bureau of standards, the functions of which 
are the custody of the standards, the comparison of the standards 
used in scientific investigations, engineering, manufacturing, com- 
merce, and educational institutions, with the standards adopted 
or recognized by the government; the testing and calibration of 
standard measuring apparatus; the solution of problems arising 
in connection with standards; the determination of physical 
constants, and the properties of materials which are of particular 
importance in science and manufacture. To facilitate the spread 
of uniform systems throughout the United States, the bureau 
is authorized to assist not only the federal government, but also 
state and municipal governments-, educational institutions, and 
private concerns engaged in manufacturing or other pursuits 
requiring the use of standards. The latter are charged a fee 
for services rendered. 

The protection of authors and inventors by a system of copy- 
rights and patents is intrusted to Congress; but it is contended 
by some publicists that this power is concurrent and may be ex- 
ercised by any state so long as its laws do not contravene the ex- 
press provision of the federal law. This point, however, has not 
been authoritatively adjudicated.^ 

For administrative purposes Congress has created a bureau of 

* Readings, p. 348. 

^ Electric mfeasures have been made uniform, however. 
' The power of Congress over trade-marks extends only so far as thej 
are involved in interstate and foreign commerce. 

26o American Government and Politics 

patents in the Department of the Interior, headed by a com- 
missioner, who administers the patent laws, issues patents for new 
inventions and improvements, and registers trade-marks, prints, 
labels, and the like.^ The working staff of the patent office is 
divided into a number of separate groups, each one of which has 
charge of some particular device or invention. Every application 
is recorded and referred to the appropriate group, which makes 
a search to see whether the claim is for a new invention and 
does not interfere with a prior patent. Nearly every inventor 
employs an attorney, although he is not required to do so, 
to assist him in prosecuting his claim. If an application is 
rejected, the applicant may appeal to the commissioner of 
patents and from his decision he may prosecute an appeal 
to the courts. If a patent is granted, it runs for a period of 
seventeen years, and extensions are sometimes made. Patents 
are promptly reissued, however, to remedy defects in the original 
specifications. The number of patents granted in 1800 was 41. 
The number of letters patent for the year ending June, 1918, 
was 39,941, exclusive of trade-marks, labels, etc. ; in that year 
the number of applications for patents for - inventions was 

The copyright law has been steadily extended to new devices, 
until it now covers not only books, but also works of art, 
maps, charts, musical compositions, and the like.^ For more 
than a century Congress extended copyright protection only to 
citizens and residents of the United States, and during that time 
American publishers, with a few honorable exceptions, regularly 
''pirated" the works of foreign authors, that is, pubHshed them in 
the United States without paying any royalty or other compen- 
sation. Under the act of March 3, 189 1, it was at last provided 
that the citizens of any foreign state which gives to citizens of 
the United States the benefit of copyright on practically the 

^ The first patent law was passed in 1790; in 1836 the office of commis- 
sioner of patents was created ; and in 1849 the patent bureau was transferred 
to the Departments of the Interior. 

2 Reference : Report of the Commissioner of Patents, an annual publica- 

' The term of a copyright is twenty-eight years with a possible renewal 
for twenty-eight years. Rights are secured not only to authors and inven- 
tors, but also to their heirs and assigns. Law of March 4, 1909. 

The Powers of Congress 261 

same basis as their own citizens, may be given the privileges of our 
copyright laws. As a result, citizens of the United States may 
claim the protection of foreign countries coming under the terms 
of the act, and citizens of foreign countries in turn may obtain the 
protection of our laws. The administration of the copyright law 
is in the hands of the registrar of copyrights, who works under 
the direction of the hbrarian of Congress.^ Every applicant re- 
ceives his copyright, for no attempt is made by the division of 
copyrights to examine into questions of infringement as in the 
case of patents. 

While the power to estabhsh post-offices and post-roads is 
separately conferred upon Congress, it may be regarded, for prac- 
tical purposes, in connection with the power to regulate commerce. 
The estabUshment of post-offices and post-roads is exclusively a 
federal matter, and it must be noted that the power of the federal 
government covers the whole domain of mail transportation, 
within each state as well as among the states.^ 

IV. The direct power of Congress, as a body, over foreign 
relations is slight, because the President and Senate have the 
treaty-making power, and the President is our official spokesman 
in the conduct of all business with foreign countries. Congress, 
hovfever;rTTiay, as we have seen, regulate foreign commerce, in- 
cluding the important branch of immigration; create consular 
and diplomatic posts abroad and provide the emoluments there- 
unto attached; define and punish piracies and felonies committed 
on the high seas and offences against the law of nations. Con- 
gress may also establish a uniform rule by which the subjects of 
foreign powers may become citizens of the United States. While 
this power of prescribing the conditions for naturalization is 
regarded as being vested exclusively in Congress, it must be re- 
membered that the states may, and many of them do, confer on 
aliens the right to vote.^ 

V. The regulation of the monetary system is vested exclusively'^ 
in the federal legislature.* Congress has power to coin money, 
regulate its value, and the value of foreign coin. ^States are for- 

^ Reference: Report of Copyright Legislation by the Registrar of Copy- 
rights (1904) — a government publication. 
2 See below, p. 394. 
^ See Readings, p. 144. 
* See below, p. 374. 

202 American Government and Politics 

bidden to coin money, emit bills of credit, or make anything but 
the gold and silver coin of the United States a tender in the pay- 
ment of debts. There is nothing in the Constitution expressly 
authorizing Congress to create paper money, but it has exercised 
this power and has been sustained by a decision of the Supreme 

! VI. The power of Congress to define crimes and provide pun- 
jishments for them is narrowly limited. The high crime of trea- 
1 son, as indicated above,^ is expressly defined in the Constitution: 
\it consists only in levying war against the United States, adhering 
to its enemies, or giving them aid and comfort. Congress can- 
not therefore make any offence which it chooses treason. 
Congress may provide for punishing counterfeiters and persons 
committing crimes on the high seas or offences against the laws of 
nations.^ " These are the only crimes committed within the com- 
monwealths, " says Professor Burgess," concerning which Congress 
has the power to legislate;" but it should not be forgotten that 
in the exercise of its express powers. Congress may define certain 
crimes against federal laws and provide penalties. For example, 
it has provided punishment for theft and other offences connected 
with the transportation of mail matter. If Congress did not have 
this power of penalizing offenders against federal law, the 
authority of the United States government would be nullified.^ 
Hence we may say that Congress may define crimes against fed- 
eral laws duly passed under the terms of the Constitution, al- 
though it has no power of defining crime in general. This power 
is left to the states ; it is for them to determine what particular 
classes of actions shall be deemed crimes, and as a result we have 
the greatest divergences, — certain actions being crimes in one 
state and innocent in others. In this respect the American fed- 
eral system differs fundamentally from the German system, for 
the German national legislature has the power to regulate the 
whole domain of civil and criminal law and judicial organization 
and procedure. 

^ See Readings, p. 241. 

2 Above, p. 149. 

^ Congress may of course define crimes in the territories and districts 
directly under the government of the United States. 

'' Readings, p. 244, The distinction should be noted, however, between a 
code of criminal law and ordinary laws with penal sanctions attached. 

The Powers of Congress 263 

\ VII. The government of the territories and districts belong- 
mg to the United States is vested in the federal authorities. 
Congress has the power to dispose of and make all needful rules 
and regulations respecting the territory or other property belong- 
jing to the United States, to exercise exclusive legislation in all 
cases whatsoever over the District of Columbia, and over all 
places purchased by the federal government (with the consent of 
the state legislatures concerned) for the erection of forts, maga- 
zines, arsenals, dockyards, and other needful buildings. In the 
exercise of this authority over territories and districts. Congress 
combines the power of the federal government with that of a 
state government, subject to the fimdamental Hmitations in the 
Constitution which forbid it to do some things that states are not 
forbidden to do — for example, establish a press censorship or 
official religion.^ The right to admit new states and supervise the 
organization of territories into states is also vested in Congress; 
and the process to be followed in the admission or organization 
of a new state is left to the determination of that body.^ 
\ VIII. Notwithstanding the theory of the separation of 
1 powers. Congress may to some extent control the various execu- 
tive departments by statutes regulating even the minutest duties 
pf the Cabinet officers. As we have seen, the Constitution merely 
(hints at the existence of the executive departments; but the 
power to determine the number of such departments and to pro- 
vide for the internal organization of each is, nevertheless, exer- 
cised by Congress. How far it may use this authority to control 
the President's high personal advisers is a matter of dispute that 
cannot be settled by any abstract definitions;^ but it may 
exercise a substantial dominion over executive departments under 
its power to fix salaries and define duties. 

IX. Congress may also exercise in practice a large power over 
the federal judiciary, notwithstanding the theoretical indepen- 
dence of that branch of the government; because it may determine 
the number of Supreme Court judges, fix their salaries, subject to 
certain limits, and define their appellate jurisdiction. The cre- 
ation of inferior federal courts is subject to its powder; and it may 
define the jurisdiction and procedure of these courts and provide 
the methods by which cases may be drawn from the state courts 

^ See below, p. 418. ^ Below, chap. xxii. ^ See above, p. 215. 

264 American Government and Politics 

into the federal courts. A notable example of the exercise of the 
power of Congress over our federal judicial system is afforded 
by the Judiciary Act of 1789, providing, among other things, the 
way in which state statutes could be brought into the federal 
courts, and their vahdity tested.^ 

Another important power vested in Congress is that of provid- 
ing the precise manner in which the acts, records, and judicial 
proceedings of each state shall be given full faith and credit in 
every other state.^ 

X. In addition to controlling, to a limited extent, the federal 
judicial system. Congress itself enjoys the power of removing 
the civil officers of the United States by the process of impeach- 
ment,^ but in practice this power is of slight importance. In try- 
ing cases of impeachment, the Senate acts as the high court."* 
When the President of the United States is being tried, the Chief 
Justice of the Supreme Court presides. It requires a two-thirds 
vote of the members present to convict. 

The power of preferring and prosecuting charges against of- 
fenders is vested in the House of Representatives. In practice, 
whenever the House decides to bring any federal officer before the 
bar of the Senate, it adopts, by resolution, articles of impeach- 
ment charging the particular offender with certain high crimes 
and misdemeanors and enumerating with more or less detail his 
particular offences. It thereupon chooses leaders to direct the 
prosecution before the Senate, and the case is then conducted 
very much in the form of a trial in an ordinary court. The prose- 
cution states its case; witnesses for and against the accused are 
heard; and attorneys on both sides make their arguments. 
When the case is fully presented the Senators vote, and if two- 
thirds of the members present concur in holding the accused 
guilty, he stands convicted; but in case of failure to secure the 
requisite two- thirds, he is acquitted. 

The penalty which the Senate can impose upon any person 

* On the power of Congress over the judiciary, see below, p. 294. 
^ See abpve, p. 158. 

^On this subject see the careful survey, "The Law of Impeachment in 
the United States," by Professor D. Y. Thomas, Political Science Review 
for May, 1908, pp. 378 ff. 

* Technically, /however, it only sits as the Senate. In 1868 it ceased to call 
itself " a high court of impeachment." 

The Powers of Congress 265 

convicted in case of impeachment is strictly limited to the re- 
moval of the offender from oflSce and the imposition of a disquali- 
fication to hold and enjoy any office of honor, trust, or profit 
under the United States. Any person convicted, however, is 
still liable, after his removal from office, to indictment, trial, 
judgment, and punishment for his offence according to law. It 
is not obligatory upon the Senate to disqualify the convicted 
person from entering the federal service in the future, but in any 
case he must be immediately removed from office. 

The jurisdiction of the Senate as a court of impeachment ex- 
tends only over the President, Vice-President, and the civil offi- 
cers of the United States, and over the offences of treason, bribery, 
or other high crimes and misdemeanors. Treason is, of course, de- 
fined in the Constitution; and the meaning of the term " bribery" 
is clear to all. The phrase "other high crimes and misdemean- 
ors," however, is somewhat vague, and Congress might give a 
loose interpretation to it, even going so far as to treat the neglect 
of official duty as a ground for impeachment. Nevertheless, a 
conservative interpretation has generally been placed upon this 
phrase, so as to hmit the offences, which render an officer Hable 
to impeachment, to crimes and misdemeanors as understood in 
the ordinary law of the land.^ 

^ The Senate has sat as a Court of Impeachment in the cases of the fol- 
lowing accused ofl&cials, with the result stated and for the periods named: 

William Blount, a Senator of the United States from Tennessee; 
charges dismissed for want of jurisdiction, he having previously resigned; 
Monday, December 17, 1798, to Monday, January 14, 1799. 

John Pickering, judge of the United States district court for the 
district of New Hampshire; removed from office; Thursday, March 3, 1803, 
to Monday, March 12, 1804. 

Samuel Chase, Associate Justice of the Supreme Court of the United 
States; acquitted; Friday, November 30, 1804, to March i, 1805. 

James H. Peck, judge of the United States district court for the dis- 
trict of Missouri; acquitted; Monday, April 26, 1830, to Monday, January 
3i» 1831. 

West H. Humphreys, judge of the United States district court for 
the middle, eastern, and western districts of Tennessee; removed from office; 
Wednesday, May 7, 1862, to Thursday, June 26, 1862. 

Andrew Johnson, President of the United States; acquitted; 
Tuesday, February 25, 1868, to Tuesday, May 26, 1868. 

William W. Belknap, Secretary of War; acquitted; Friday, March 
3, 1876, to Tuesday, August i, 1876. 

Charles Swayne, judge of the United States district court for the 

266 American Government and Politics 

Federal military officers are exempt from this jurisdiction, 
being subject to courts-martial. Members of Congress are also 
exempt, for they are not technically "civil officers," and further- 
more they are under the control of their respective houses — each 
house having the power to determine its rules and proceedings, 
punish its members for disorderly behavior, and, with the con- 
currence of two- thirds, expel a member. 

XI. In carrying into execution the powers vested by the Con- 
stitution in the government of the United States or in any depart- 
ment or office thereof. Congress may make all laws, which shall 
be deemed "necessary and proper." The courts have, in gen- 
eral, given a liberal interpretation to this phrase. The Supreme 
Court has repeatedly declared that Congress possesses the right to 
use any means which it deems conducive to the exercise of any ex- 
press power. Said the Court in the case of Juilliard v. Greenman : * 
"The words 'necessary and proper' are not limited to such meas- 
ures as are absolutely and indispensably necessary, without which 
the powers granted must fail of execution; but they include all 
the proper means which are conducive or adapted to the end to be 
accomplished and which, in the judgment of Congress, will most 
advantageously effect it." 

northern district of Florida; acquitted; Wednesday, December 14, 1904, 
to Monday, February 27, 1905. 

Robert W. Archbald, associate judge. United States Commerce Court, 
removed from office, Saturday, July 13, 191 2, to Monday, January 13, 1913. 
Congressional Directory (19 13), p. 160. 

^ no U. S. R., 421 ; Readings, p. 245. 



To the average observer, Congress is a vast and complicated 
legislative organ, with rules, committees, and methods, beyond 
the ken of ordinary mortals; but a somewhat careful examina- 
tion of the procedure of that body from day to day reveals cer- 
tain principles and practices which, when properly grasped, make 
the working scheme of the organization fairly clear — at least 
clear enough for the citizen who does not intend to become a 
legislator but merely wishes to watch the operations of the na- 
tional lawmakers with a reasonable degree of understanding. 

Party Organization and Leadership in Congress 

I. The first fact to be grasped is that the working methods of 
Congress are largely determined by the existence of two poHtical 
parties — one, a majority in control of one or both houses and 
regarding itself as responsible for the principal legislative poli- 
cies; the other, a minority, in opposition, bound under ordinary 
circumstances to criticise and often vote against the measures in- 
troduced and advanced by the majority. In England, the poUt- 
ical Darty organization is carried frankly into the House of Com- 
mons, where the majority and minority sit facing each other, and 
where the government is avowedly that of the predominant 
party — a government of men, not even theoretically of con- 
stitutional law. In the United States, the party rules none the 
less, but its organization and operations are, as we have seen,^ un- 
known to the formal law of the federal Constitution. It is true 
that the votes on measures in Congress are by no means always 
cast according to party divisions, but it is Hkewise true that the 
principal legislative work of a session is the work of the majority 
party, formulated by its leaders, and carried through under their 

This is not all. Each party in the Senate and the House ia, 

^ Above, chap. vi. 

2 For the part of the President as political leader, see above, chap. ix. 


268 American Government and Politics 

organized into a congressional caucus,^ in which is frequentl]^ 
determined the Hne of party action with regard to important leg- 
islative questions. It is in a party caucus before the opening of 
each Congress, that the majority in the House chooses the Speaker 
and the minority decides upon its leader whom it formally pre- 
sents as a candidate for Speaker, knowing full well that he cannot 
by any chance be elected. It is in the caucus that the majority 
decides whether it will adopt the rules of the preceding Congress 
or modify them; and it is seldom that the decision of the caucus 
is overthrown. The caucus is definitely organized under rules by 
which party members are expected to abide, although there are 
often a few "insurgents'' who insist on acting independently. 

The exact weight of the caucus in determining party policy is 
difficult to ascertain. At times in our history, undoubtedly, the 
caucus has settled fundamental matters of pubhc interest before 
they were introduced into Congress, but there was reason for 
believing that, during the first decade of the twentieth century, 
its influence was declining on account of the rise to power in each 
house of a few men whose long service, shrewdness in legislative 
management, and effective leadership, had placed them in con- 
trol of the speakership and the great committees. 

How this was working out in the Senate is indicated by this 
passage from a speech made in that body in 1908, by Senator La 
FoUette. "I attended a caucus at the beginning of this Congress. 
I happened to look at my watch when we went into that caucus. 
We were in session three minutes and a half. Do you know 
what happened ? Well, I will tell you. A motion was made that 
somebody preside. Then a motion was made that whoever pre- 
sided should appoint a committee on committees ; and a motion 
was then made that we adjourn. Nobody said anything but the 
Senator who made the motion. Then and there the fate of all 
the legislation of this session was decided. . . . Mr. President, 
if 3^ou will scan the committees of this Senate, you will find that a 
little handful of men are in domination and control of the great 
legislative committees of this body, and that they are a very 
limited number." ^ 

^ Readings, p. 247. The caucus is held behind closed doors, but its de- 
liberations are seldom withheld from the public. Sometunes wide publicity 
is given to the action of the caucus. 

2 Reinsch, Readings, pp. 168-169. 

Congress at Work 269 

In the House, the directing power seems to be unquestionably 
concentrating in the speaker, the majority members of the com- 
mittee on rules, and the chairmen of the important committees.^ 
The positive leadership of these men seems to be definitely recog- 
nized. They, and such party members as are of unquestioned 
weight in the House, are gradually working toward something 
like an inner council of government, in which they formulate 
the policies and bring the other party members into Hne by the 
many methods known to politics.^ 

Indeed, a few years ago a writer went so far as to say that the 
party caucus was merely held for the information of the leaders 
and was " intended rather to furnish a vent for excited feeling and 
to measure and sum up the relative strength of different opinions, 
than to frame a policy upon which the party will unite." But 
attempts were made, on the return of the Democrats in 191 1, 
to give the caucus some real vitality. Undoubtedly it is more 
powerful now than twenty years ago. 

The Mass of Business before Congress 

II. The second important fact to grasp is that each session of 
Congress is confronted by an enormous amount of business — 
from five to twenty times as much as can be considered ade- 
quately. Any member may introduce as many bills as he pleases 
by handing them to the clerk if they are of a private nature, or 
to the Speaker if they are of a public character. He does not 
have to secure any permission in advance or assume any re- 
sponsibiUty for them, even though they may involve heavy 
charges upon the public treasury. 

This looks like a fair and simple practice, but in fact it is 
largely responsible for the extravagance and confusion that exist 
in the federal government and for the iron-bound methods that 
are followed in the procedure of the House. Inasmuch as each 
member has a large number of special appropriations for his own 
particular district, he is always willing to be generous with the 
claims of other members in return for a favorable consideration 
of his own. This practice of cooperating in securing appropria- 
tions is known as "log-rolling" — a term derived from pioneer 

^ It is difficult to say what has been the precise effect of the action of the 
House in making the committees elective. Below, p. 283. 
2 See Lowell, Government of Englatid, Vol. I, pp. 448 ff. 

270 American Government and Politics 

times when frontiersmen helped one another in rolling logs, mak- 
ing clearings, and building cabins. It is owing to this system 
that national interests are largely subordinated to particular and 
local interests. 

The way in which this pressure for appropriations operates can 
best be illustrated by the following Hst of bills relative to a single 
locaUty, introduced by one member some years ago : — 

By Mr. Cla^k of Florida: A bill (H. R. 12293) to establish a 
fish hatchery and biological station in the Second Congressional 
District of Florida — to the Committee on the Merchant Marine and 

Also, a bill (H. R. 12294) to estabUsh a fish-hatching and fish- 
cultural station on the St. John's River, in the State of Florida — ' 
to the Committee on the Merchant Marine and Fisheries. 

Also, a bill (H. R. 12295) to provide for the erection of a sub- 
treasury building and the establishment of a subtreasury at Jackson- 
ville, in the State of Florida — to the Committee on Public Buildings 
and Grounds. 

Also, a bill (H. R. 12296) to provide for the erection of a public 
building at the city of Palatka, in the State of Florida — to the Com- 
mittee on Public Buildings and Grounds. 

Also, a bill (H. R. 12297) to require the Secretary of Agriculture 
to make monthly reports as to the sea-island cotton, pineapple, and 
orange crops — to the Committee on Agriculture. 

Also, a bill (H. R. 12298) to extend the provisions of the existing 
bounty-land laws to the officers and enlisted men and the officers 
and men of the boat companies of the Florida Seminole Indian wars 
— to the Committee on the Public Lands. 

Also, a bill (H. R. 12299) to extend to the veterans of the several 
Seminole Indian wars and to the widows of the veterans of the several 
Seminole Indian wars the benefits of the act of Congress of February 
6, 1907 — to the Committee on Pensions. 

Also, a bill (H. R. 12300) granting pensions to the soldiers of the 
different Seminole Indian wars and their widows — to the Committee 
on Pensions. 

Also, a bill (H. R. 12301) to provide for and levy an import duty 
on Egyptian and other long-staple cotton imported into the United 
States from foreign countries — to the Committee on Ways and Means. 

Also, a bill (H. R. 12303) for the reHef of the State of Florida — 
to the Committee on War Claims,^ 

This is no exceptional list, and is not printed here for the pur- 

* Congressional Record for December 6, 1909. 

Congress at Work 271 

pose of criticising Mr. Clark, but only to indicate the nature of 
the system which has introduced into the House of Repre- 
sentatives a large group of astute wire-pullers whose tenure of 
position and standing with their constituents depend, not upon 
their high abilities for deaUng with really great issues, but upon 
the success with which they may secure appropriations for selfish 
local interests — to use the congressional phrase, ''get pork out 
of the pubUc pork-barrel." ^ 

It is idle, however, to criticise members of Congress, for they 
are not individually at fault. Any one of them who refused to 
join in this general scramble for the division of spoils would find 
himseK speedily retired by the organized element among his 
constituents, and perhaps by the vote of his constituents, for 
they are generally prone to measure the achievements of their 
Representative by the amount of ''pork" w^hich he secures for 
the district. There is no use, let it be repeated, in criticising 
members of Congress. The system, as Professor Henry Jones 
Ford points out, is at fault.^ As long as any member of Congress 
may introduce measures carrying a charge upon the public 
treasury and as many other bills and resolutions as he pleases, 
just so long will the log-rolling process continue, and the House 
of Representatives be so overwhelmed with business as prac- 
tically to destroy its functions as a deliberative assetnbly. 

The following measures were introduced into the House during 
the Fifty-ninth Congress: 26,154 bills, 257 joint resolutions, 62 
concurrent resolutions, 898 simple resolutions, and 8174 reports. 
During this Congress, 692 public bills and 6940 private bills, 
principally pension measures, were passed. The power to select 
from this enormous mass before the House must be vested in the 
hands of some person or group of persons, for the selection cannot 
be made openly on the floor by any automatic process which 
brings every measure to the consideration of that body. These 
persons invested with the power of selection in the House must 
of necessity be leaders among the majority party, for that party 
assumes responsibility before the country for the results of a leg- 
islative session. In the House these leaders are the Speaker, 

1 In the days of slavery it was the practice to open up on certain days a 
barrel of pork and give each slave his portion. This appears to be the origin 
of the term. C. C. Maxey, National Municipal Review, December, 1919, 
p. 693. ^ TJic Cost of Governmetii. 


American Government and Politics 

the committee on rules, and the chairmen of the principal com* 
mittees to which bills are referred; and the rules provide ways by 
which they can make selections of business for consideration and 
limit the amount of time which may be consumed in debate on 
each measure. 

The Rules of the House of Representatives 

III. The rules, therefore, must enable the presiding officer of 
the House to prevent the consideration of any motion introduced 
merely for the purpose of delaying business. They must hmit, 
or make provision for Hmiting, the amount of time which may be 
consumed in debating any particular matter. They must pro- 
vide some way in which the party leaders can force the considera- 
tion of certain measures whenever they see fit. These principles 
have slowly been evolved in the development of the House of 
Representatives, and are now written in the rules of that body. 

I. In the first place, the Speaker of the House may refuse to put 
motions which he regards as dilatory; tliat is, designed merely 
to delay business. 

The immediate cause for the adoption of this principle was the 
practice of filibustering ^ by the minority or by small groups. In the 
Fiftieth Congress, on one occasion, the " House remained in contin- 
uous session eight days and nights, during which time there were 
over one hundred roll-calls on the iterated and reiterated motions 
to adjourn and to take a recess, and their amendments. On this 
occasion the reading clerks became so exhausted that they could 
no longer act, and certain members, possessed of large voices and 
strenuous lungs, took their places. If this was not child's play, 
it would be difiicult to define it. Then, again, when a measure to 
which the minority objected was likely to pass, the yeas and nays 
would be ordered." ^ 

In the succeeding Congress, of which Mr. Thomas B. Reed was 

* In ordinary use, the word " filibuster " means to act as a freebooter or 
buccaneer, but in parliamentary practice it means " to obstruct legislation 
by imdue use of the technicaUties of parliamentary law or privileges, as when 
a minority, in order to prevent the passage of some measure obnoxious to 
them, endeavor to tire out their opponents by useless motions, speeches, 
and objections." Frequently, the purpose of a filibuster is to call the atten- 
tion of the country in an emphatic way to the policy of the majority. 

' Reinsch, Readings, p. 238. 

Congress at Work 273 

Speaker, the Republicans had only a narrow majority, and it soon 
became clear that the opposing party, by putting dilatory motions 
and refusing to answer to the roll-call on a quorum, could prevent 
the majority from doing any business at all. It was under these 
circumstances that Speaker Reed, in January, 1890, refused to put 
motions which he regarded as purely dilatory, and was sustained 
by the House. 

Mr. Reed defended his ruling as follows: — 

The object of a parliamentary body is action, and not stoppage 
of action. Hence if any member or set of members undertakes to 
oppose the orderly progress of business even by the use of the ordinarily 
recognized parliamentary motions, it is the right of the majority to 
refuse to have those motions entertained and to cause the pubHc 
business to proceed. Primarily, the organ of the House is the man 
elected to the speakership; it is his duty in a clear case, recognizing 
the situation, to endeavor to carry out the wishes and desires of the 
majority of the body which it represents. Whenever it becomes 
apparent that the ordinary and proper parHamentary motions are 
being used solely for the purposes of delay and obstruction; . , . 
when a gentleman steps down to the front amid the applause of his 
associates on the floor and announces that it is his intention to make 
opposition in every direction, it then becomes apparent to the House 
and the community what the purpose is. It is then the duty of the 
occupant of the Speaker's chair to take, under parliamentary law, 
the proper course with regard to such matters. 

This principle was shortly afterward (1890) embodied in the 
rules, and the Speaker now has regular sanction for refusing to en- 
tertain purely dilatory motions. However, the constitutional 
right of a member to demand the yeas and nays cannot be denied 
even if the purpose is dilatory.^ 

2. In the second place the Speaker may count as present 
those members who are physically present but refuse to answer to 
their names on a roll-call for the purpose of compelling an ad- 
journment in the absence of a quorum. This principle was es- 
tablished by Speaker Reed about the same time as the ruHng on 
dilatory motions, and also embodied in the revision of the rules of 
that year.^ 

^ On this important subject, see Hinds, Precedents of the House oj Repre^ 
\entatives, Vol. V, pp. 3,53 ff. 
2 See above, p. 247. 


274 American Government and Politics 

3. In the third place, the rules provide a method for auto- 
matically shortening debate by prescribing that the time occupied 
by any member in discussing a legislative proposition shall not ex- 
ceed one hour. This Umit was imposed in 1841, and at the time 
Senator Benton declared that it was " the largest limitation upon 
the freedom of debate which any deliberative assembly ever im- 
posed upon itself, and presents an eminent instance of permanent 
injury done to free institutions in order to get rid of a temporary 
annoyance." It is difficult to see, however, in what way the House 
could meet the enormous pressure upon it, if any member from 
among the 435 could talk as long as he pleased on any measure. 

A member may, if he chooses, yield a portion of his time to some 
other member or members wishing to speak on a measure, but he 
may occupy no more than one hour, except by obtaining unani- 
mous consent. Neither may he speak twice upon the same 
measure unless he introduced it, or is the member reporting it 
from committee. When going into the committee of the whole,^ 
the House fixes the time of debate, which cannot be extended by 
the committee; and in many other ways freedom of debate is 
arbitrarily limited. 

4. In the fourth place, in order to enable party leaders to force 
the consideration of certain measures whenever they see fit, the 
following committees may report on the subjects enumerated 
practically at any time in the course of the procedure of the 
House, no matter what may be under discussion : the committee 
on rules may report on rules, joint rules, and order of business; ^ 
the committee on elections, on the right of a member to 
his seat; the committee on ways and means, on bills raising rev- 
enue; the committees having jurisdiction of appropriations, on the 
general appropriations bills; the committee on rivers and har- 
bors, bills for the improvement of rivers and harbors; the com- 
mittee on the public lands, bills for the forfeiture of land grants to 
railroad and other corporations, bills preventing speculation in 

* The committee of the whole fonns a convenient body for discussion 
and provisional voting on measures. In it, 100 constitute a quorum and the 
Speaker's chair is taken by some other member. Measures approved in it are 
reported to the House for formal adoption. 

^ It is always in order to call up for consideration a report of the committee 
on rules. The position of this important conmaittee is considered below' 
(p. 283) in connection with the Speaker. 

Congress at Work 275 

public lands, and bills for the reservation of the public lands for 
the benefit of actual and bona-fide settlers; the committee on 
territories, bills for the admission of new states ; the committee on 
enrolled bills, enrolled bills ; the committee on invalid pensions, 
general pension bills. 

The Senate also has its code of rules, but it has not adopted 
any of the drastic methods obtaining in the House.^ When the 
Senate rules were revised in 1806, the right to move the previous 
question, and thus close debate summarily, was omitted, and all 
attempts to restore control failed until 1917. At the session 
convened in March of that year, the Senate found all business 
blocked by an apparently endless debate. In the discussion of 
a proposed treaty with Colombia, more than 1400 nominations 
to positions in the federal service were held up awaiting confirma- 
tion. By a certain irony of fate the Democrats who had always 
been the most ardent champions of free debate were forced to 
insist upon some method of cutting it off. Acting on the recom- 
mendation of a committee composed of an equal number of mem- 
bers from both parties, the Senate adopted a new rule providing 
that : (i) on petition of sixteen senators a motion tojcutoffdis^ 
cussion on any bill can be served on the House and (2) if 
adopted two days later by a two-thirds vote it will bring the 
debate to an end, after each member has enjoyed the right to 
speak for not more than one hour on the pending measure. 
After such a closure is adopted amendments to the bill under 
consideration can be made only by unanimous consent. 

The new rule, however, is not often brought into play, but 
it is always ready for use. Debate is still more prolix in the 
Senate than in the House, the Senators preferring to rely upon 
a sense of propriety, rather than upon an absolute rule, to bring 
discussion within the bounds of reason. Knowledge that there 
is a closure rule acts as a check upon filibustering tactics. The 
provision requiring a two-thirds vote to apply it ordinarily pre- 
vents any drastic and unfair use of the instrument. The long 
debate on the treaty of peace in 1919 is proof that the new rule 
does not seriously hamper the right of members to a free and full 
expression of their opinions. 

In neither House has there developed a single committee or 
authority, similar to the British cabinet, with full power and 

* See Wilson, Constitutional Government in the United States, chap. v. 

276 American Government and Politics 

responsibility for the conduct of public business. Every im- 
portant piece of legislation is handled by the chairman in charge. 
He conducts the negotiations within his party and outside. 
Everybody interested joins in the enterprise. If serious troubles 
arise, a caucus may be called, but ordinarily the affair will be 
managed by the art of negotiation. Power, system, and re- 
sponsibility are no part of the congressional plan. 

The Committees of Congress 

IV. As a part of the system by which the two houses endeavor 
to deal with the enormous mass of business coming before them, 
there has been evolved an extensive scheme of standing commit- 
tees.^ The student of our national government should therefore 
bear in mind the fact that the legislative work of each house is 
done largely by committees and that every committee of each 
house is controlled by a majority of members representing the 
dominant party. 

From the beginning of our history there has been an almost 
steady increase in the number of committees, and at the present 
time there are about seventy in the Senate and sixty in the 
House. With the increase of business, it becomes necessary 
from time to time to relieve old committees by assigning a part 
of their work to new committees. Each committee has a well- 
furnished office and many ''perquisites" which are not to be 
despised by members of Congress. Finally, the natural pride 
of each member leads him to want some important committee 
assignments, and to satisfy the demand for assignments, new 
places must be created. 

The committees vary greatly in importance. In the lower 
house, the leading committees are on ways and means, appro- 
priations, rules, banking and currency, interstate and foreign 
commerce, rivers and harbors, military affairs, naval affairs, 
post-office and post roads, public lands, labor, and pensions. In 
the Senate, the committees on appropriations, finance, com- 
merce, foreign relations, judiciary, military affairs, naval affairs, 
interstate commerce, and pensions take high rank. 

Formerly all standing committees of the House of Repre- 

* Select committees are appointed from time to time to deal with specific 
matters. When a select committee reports, it is dissolved unless given 
further power. Only a few of the regular committees have any importance. 

Congress at Work 277 

sen tatives were appointed by the Speaker, but this system was 
changed in 1910-1911 in favor of an election by the House itself. 
The difference in practice made by this change in the rules is 
more apparent than real. Since the beginning of the party 
system in the United States, the selection of the members of 
committees has been in the hands of the caucus of each party, 
under the leadership, and perhaps dominance, of a few men 
experienced in the arts of management. To borrow a term 
from economics, we may say that the committee assignments 
in the House and in the Senate are determined by a ''higgling in 
the market " and that the various posts fall to members roughly 
according to seniority, their abilities, their power as leaders, 
their skill in management. This "higgling" begins long before 
a new Congress meets ; most of the important assignments are 
determined probably before the party caucuses assemble, and 
the caucuses only ratify the work of the pre-caucuses while the 
houses ratify the work of the caucuses. The minority party 
chooses representatives on each committee, somewhat in the 
same manner, but they seldom count for much in the determina- 
tion of policies. 

Formerly it was the custom of party leaders in both houses 
to assign all of the important chairmanships to members who 
had seen long service, and it was only natural that the direction 
of affairs should fall to the most experienced. However, with 
the Democratic victories in 1910 and 1912, a great outcry was 
made by the incoming new members against allowing the old 
Democratic Senators and Representatives to monopolize the 
committee assignments on principles of seniority. 

It is in the committee room usually behind closed doors and 
secure from public scrutiny that the real legislative work is done.^ 
Every bill, important or unimportant, is sent to the committee 
having jurisdiction over the subject-matter to which it relates.^ 

* Only bills which are reported favorably from committees have much 
chance of being acted upon, and when a bill is once favorably reported by a 
committee, its chances of passage are very high. For example, in the Fifty- 
eighth Congress, 19,209 bills were introduced in the House; the committees 
reported 4904; and 4041 were passed. Hinds, Precedents, Vol. V, p. 286. 

2 Bills of a ?:ivate nature are referred by the clerk of the House to the 
committees indicated by the introducers. Public bills are referred by the 
Speaker, but his reference may be changed by the House. 

278 American Government and Politics 

The recommendations contained in the President's message are 
Ukewise so distributed. Quite frequently the committees origi- 
nate the bills — especially appropriation bills — relating to the 
matters placed under their jurisdiction. 

Thousands of bills which go to committees are not considered 
at all, but a measure which a committee reports receives an 
analysis and criticism more or less severe, according to the char- 
acter of the bill. On a measure of vital importance, papers and 
documents relating to the subject may be secured from the head 
of the executive department to whose duties it relates; or the 
officer himself may be requested to appear personally and 
answer a multitude of questions propounded by the committee 
members. Friends and opponents of the measures pending in 
committees are frequently admitted to state the reasons for their 
positions; hearings may even be held in various points through- 
out the country, and witnesses may be required to attend the 
committee meetings and give evidence very much in the same 
manner as in a courtroom. 

In almost every case the measures in charge of a particular 
committee are considered or formulated by a sub-committee (in 
which the minority receives scant recognition), and the whole 
committee generally accepts its report. On purely party ques- 
tions, such as the tariff, the majority members of the committee 
draft the bill, and, when the measure is complete, they may in- 
vite the minority members in to vote on it as a matter of form. 
With regard to any measure referred to it, a committee may rec- 
ommend its adoption, amend it, report adversely, delay the 
report indefinitely, or ignore it altogether. In the House it 
rarely happens that a member is able to secure the consideration 
of a bill which the committee in charge opposes; but in the Sen- 
ate a greater freedom is enjoyed in this respect. 

Owing to the pressure of business in the House, it is impossible 
to consider each bill on its merits and arrive at a vote after search- 
ing debate and mature deliberation ; and it has often happened 
that very important measures have been forced through as they 
have come from committee without any serious debate or a single 
amendment.^ This, of course, places an enormous power in the 

1 Many speeches which appear in the Congressional Record are not de- 
livered in the House at all, but are prepared by members for the benefit of 
their constituents. 

Congress at Work 279 

hands of committees and changes the House from a deliberative 
into a ratifying assembly. There has been a great deal of criti- 
cism of the committee system, but no acceptable substitute has as 
yet been suggested. iVs early as 1880, the Independent National, 
or Greenback, party demanded absolute democratic rules for the 
government of Congress, placing all representatives of the people 
upon an equal footing, and taking away from committees "a 
veto power greater than that of the President." Complaints are 
constantly being made in the House itself, especially by members 
of the minority. " You send important questions to a committee," 
said Mr. Sherley, in the House in 1905; "you put into the hands 
of a few men the power to bring in bills, and then they are brought 
in with an ironclad rule, and rammed down the throats of mem- 
bers; and then those measures are sent out as being the deliberate 
judgment of the Congress of the United States when no deliberate 
judgment has been expressed by any man." ^ 

This division of each house of Congress into a large number 
of separate committees, no doubt, does lead to many deplorable 
results. These committees work with Httle or no reference to 
one another, each preparing its own bills with slight regard to 
the measures in the other committees. The committee on ways 
and means has no official commimication with the committees in 
charge of appropriations, for example. That is, the committee 
on raising revenues has no way of balancing its accounts over 
against the estimated expenditures as they are shaped by the 
several committees on appropriation measures. The result of 
this practice is not only unfortunate as far as revenues and ex- 
penditures are concerned; it often leads to ill-adjusted and con- 
flicting legislation even on matters of fundamental importance — ■ 
matters which in England would receive the careful attention of 
the Cabinet, composed of the leaders of the majority party. 

There are serious constitutional difficulties in the way of our 
creating such a system of Cabinet responsibiUty for legislation, 
but possibly, while retaining the committee system now in force, 
we may secure more responsibility by frankly recognizing the 
power in the hands of 'the chairmen of important committees, 
and by holding them definitely accountable as party leaders. 
There is however no device, except public opinion, for enforcing 
the responsibiUty so recognized. 

1 Congressio7ial Record, Vol. XL, part i, p. 455 ; 59th Cong., ist Sess. 

28o American Government and Politics 

Leadership in the House of Representatives 

V. In this tendency to develop some sort of responsibility for 
legislative policies at Washington, the power of the Speaker of 
the House of Representatives assumes an important place. 

In every large body with a great amount of business to transact 
there must be some directing authority to see that the necessary 
measures are disposed of promptly, and to prevent procedure 
from falling into chaos. In England, this leadership is avowedly 
vested in the Prime Minister, who is the acknowledged head of 
the majority party in the House of Commons, and is chiefly 
responsible for the successful realization of the party policy in 
Parliament. The Speaker of the House of Commons under these 
circumstances does not feel any responsibility in this matter, and 
accordingly maintains an attitude of impartiality in his rulings 
and decisions — at least in theory. In the beginning of our fed- 
eral government, the Speaker was regarded as a mere moderator, 
but as the House grew in size and the business to be transacted 
increased enormously, it became impossible for him to sit pas- 
sively and see the measures of his party delayed or defeated by 
the dilatory tactics of the minority. 

Hence it came about that the Speakership of the House under 
the direction of powerful men like Thomas B. Reed and Joseph 
Cannon tended to develop into an office akin to that of the prime 
minister. During the closing years of the nineteenth century 
and the opening years of the twentieth century the Speaker 
became a sort of a premier in a small unofficial cabinet composed 
of his two party colleagues on the rules committee (the minority 
party's two members counting for nothing) and the chairman 
of the more powerful committees of the House. ^'The Speaker's 
control over legislation is now, under the rules and practices of 
the House, almost absolute,^' said an editorial writer in 1897. 
''The people know this now. The time has passed when the 
Speaker could exercise his vast power unsuspected. Nor can 
he shirk his responsibility. No bill can pass the House without 
his passive approval, and that in effect is the same thing as 
active advocacy." 

The Speaker, according to constitutional law, is chosen by the 
House of Representatives, but in fact he is elected at a caucus 
pf the majority party, and the House merely ratifies the selection. 

•Congress at Work 281 

The office always falls to some member of long service who has 
had not only an opportunity to master the intricate details of 
parliamentary procedure, but also has learned the fine art of 
political manipulation — of securing support, skilfully distribut- 
ing favors, and thwarting opposition. He is a man who has 
shown capacity for "getting things done" on the floor of the 
House and in the committee room. He does not rise to the 
position through his power as an orator or his ability to command 
the approval of the country in the same way that an English 
member of Parliament rises to the position of Prime Minister. 
Nevertheless, he is in a very real sense a party leader. 

The elements of control in the hands of the Speaker are 
undoubtedly powerful, although the right to appoint commit- 
tees has been taken from him. He may refuse to put dilatory 
motions ; he may recognize whomsoever he pleases on the floor 
of the House ; and he decides questions of parliamentary pro- 
cedure, subject to appeals from his decisions.^ 

Inasmuch as the ordinary member of the House ^ can bring his 
own measures up for discussion only with the ''unanimous con- 
sent of the House," the Speaker enjoys a considerable power in 
this connection. As a member himself, he has a right to 
"object," and thus prevent the Representative asking the atten- 
*tion of the House from getting a hearing on his particular 
schemes. For a long time it was customary for the Speaker, 
when he did not want any matter brought up under the rule of 
"unanimous consent," to notify some supporter on the floor to 
object, but Speaker Cannon, to use his own words, "thought the 
better way and the more manly and fairer way was. to exercise 
his right as a member, to object to a request for unanimous 
consent." ^ Under Mr. Cannon's regime, any member, there- 
fore, who wished to call up a measure in the House was forced to 
visit the Speaker in advance and secure his approval, and in 
giving his consent the Speaker was not unmindful of the service 
he had secured or might secure from the man soliciting his favor. 
Every member has several schemes of his own relating to his 
district and demanded by his constituents.'^ He must get a 

1 Readings (ist ed.), p. 260. 

2 The most important committee chairmen, of course, occupy a privileged 
position. See above, p. 274. 

3 Reinsch, Readings, p. 234. ■« See above, p. 270. 

282 American Government and« Politics 

hearing, or be a nonentity in the House; his political career 
depends upon it. There is no use trying to explain to his fellow- 
citizens the rules of the House which prevented his being heard. 
Speaker Cannon, therefore, held the key to the situation. 

The way in which this practice sometimes worked hardships 
for individual members is illustrated in this account by Mr. 
Cooper, a member from Wisconsin : — 

We all know that we cannot get a bill passed — every man on 
the floor does, Republican or Democrat — by unanimous consent 
unless the Member presenting it first goes to the private chamber of 
the Speaker and asks to be recognized. The Speaker does not have 
to give his reasons for any objections he may have. He does not rise 
upon the floor, but in his private chamber he objects. ( I wish to say 
that the present Speaker of the House has always treated me with 
the utmost courtesy and kindness. A former Speaker of this House 
compelled me to go to his room at one time. I went there to present 
a bill which provided simply for the changing of the material which 
was to go into a public building and which had been recommended 
to him in a letter from the office of the Supervising Architect. ... I 
went to the Speaker's chamber. I had refused on a former occasion 
to do his bidding. When I went to his room he said, " I will see about 
that ; come in again." I went in again. He did not ask me to sit 
down. He said, " I do not think I can do that ; I do not want to do 
that ; I cannot allow that to come up." Not only that, but he com- 
pelled me to stand there, and when a perfect stranger came in, he sat 
him down in his seat and turned his back on me. A very important 
rule had previously come before the House of Representatives. That 
same Speaker had stopped me at the entrance there and put his hand 
upon my breast and said, " Mr. Cooper, you will oblige me very much 
by not opposing this rule." That rule related to the Pacific Railroad 
funding bill. I did oppose it. I was the only Republican of the minority 
of the committee that reported against the bill ; the rub was modified, 
and for the first time in thirty years the Pacific Railroad people lost 
their bill. That same Speaker refused practically to recognize me for 
four or five years for any purpose, and never when he could help it.^ 

Nevertheless, many bad measures were checked by this exer- 
cise of power. Members of the House do not have the time to 
consider the measures on which their unanimous consent is asked, 
and, besides, they have plans of their own, so that they cannot use 
discretion in objecting. The main burden of responsibility was 

^ Reinsch, Readings, p. 228 

Congress at Work 283 

thus placed upon the Speaker, and consequently he openly 
assumed it. 

Until March 19, 1910, a considerable portion of the Speaker's 
power came from his connection with the committee on rules — 
a committee consisting of himself, and two majority and two 
minority members named by himself. 

This important committee on rules may at any time recom- 
mend the adoption of any methods of procedure in connection 
with a particular bill which will secure its speedy passage. A 
report of this committee is highly privileged ; it may be brought 
in at any time ; only a motion to adjourn may be entertained 
during its consideration ; and the Speaker will not allow any 
dilatory motions until it is fully disposed of. " The essence of the 
power of the committee on rules," says Professor Reinsch, "lies 
in the* fact that it has the right to report at any time a resolution 
that a bill or other measure be made a special order for a certain 
day. As nearly all the important measures before the House of 
Representatives are dealt with under special orders, the com- 
mittee on rules has, therefore, in its hands practically the com- 
plete control of the course of business in the House. It deter- 
mines what measures shall be discussed, how much time is to 
be given to them, and in what order they are to be brought 
up." 1 It may, for example, recommend to the House a reso- 
lution which will have the effect of stopping debate on a particu- 
lar measure, and force its adoption or rejection in the form in 
which it came before the House.^ The resolutions introduced 
by this committee, however, are subject to the approval of the 
House, so that whenever one of its drastic recommendations is 
adopted, it is only because it has correctly measured the temper 
of the majority — disciplined under party leadership. 

The way in which the committee formerly operated may be 
illustrated by the following extract from the Congressional 
Record (1908) : — 

Mr. Dalzell. Mr. Speaker, I submit the following privileged 
report from the Committee on Rules. 

^ Reinsch, American Legislatures and Legislative Methods, pp. 45 ff. Pro- 
fessor Reinsch's statement, however, should be modified somewhat, for 
many more important measures than his words imply are taken up without 
special orders from the rules committee. 

2 For a "special order" from the rules committee, see below, p. 284. 

284 American Government and Politics 

The Speaker. The gentleman from Pennsylvania submits a 
report from the Committee on Rules, which the Clerk will report. 
The Clerk read as follows : — 

Resolved, That immediately upon the adoption of this rule and at any time 
thereafter during the remainder of this session, it shall be in order to take 
from the Speaker's table any general appropriation bill returned with Senate 
amendments, and such amendments having been read, the question shall be 
at once taken, without debate or intervening motion, of the following 
question: "Will the House disagree to said amendments en bloc and ask a 
conference with theSenate ? " And if this motion shall be decided in the af- 
firmative, the Speaker shall at once appoint the conferees, without the inter- 
vention of any motion. If the House shall decide said motion in the negative 
the efifect of said vote shall be to agree to the said amendments. And further, 
for the remainder of this session the motion to take a recess shall be a privi- 
leged motion, taking precedence of the motion to adjourn, and shall be de- 
cided without debate or amendment. And further, during the remainder of 
this session, it shall be in order to close debate by motion in the House before 
going into Committee of the Whole, which motion shall not be subject to 
either amendment or debate. (Applause on the Repubhcan side.) 

Mr. Sulzer. Mr. Speaker, would it not be well to add to that 
"That hereafter the Democrats shall have nothing more to say"? 

Mr. Dalzell. Mr. Speaker, the purpose of this rule, like the 
purpose of the rule that was introduced yesterday, is to expedite the 
public business. 

Mr. Williams. Mr. Speaker — 

The Speaker. Does the gentleman from Pennsylvania yield to 
the gentleman from Mississippi ? 

Mr. Dalzell. Yes. 

Mr. Williams. I wish to ask the gentleman a question. I wish 
to ask, before we proceed, whether the minority members of the Com- 
mittee on Rules will be accorded the usual twenty minutes ? 

Mr. Dalzell. They will not. 

Mr. Williams. They will not ! I just wanted the House and 
the country to know that fact before we start this debate.^ 

Through the aid of this machinery, a perfect system of control 
over all bilsiness of the House was built up by Republican leaders 
during the long tenure of that party from 1897 to 1911. The 
Speaker, Mr. Cannon,^ appointed all of the committees and 
named the chairman of each; in conjunction with the rules 
committee and the chairmen of a few powerful committees he 

1 Reinsch, Readings, pp. 273 f. 2 From 1903 to 191 1. 

Congress at Work 285 

completely dominated the procedure of the House. The system 
enabled the Speaker and his few experienced colleagues to bring 
the new member of Congress into line with "the old guard" 
by closing to him all avenues to power and preferment unless 
he capitulated or kept silence. It permitted the Speaker and 
his immediate supporters, even though constituting a minority 
of the entire House, to check any spirit of independence and 
criticism shown by their party associates. The system virtually 
established minority rule in the House, because the men who 
would have been independent if they could, taken in conjunc- 
tion with the members of the opposition party, frequently con- 
stituted a majority of the whole number of Representatives. 

Against this system the Democrats protested as a matter 
of course, for it destroyed their influence in the House ; but their 
objections would have had little avail, if there had not been 
discontent among the newer Republican members, and par- 
ticularly among the more radical Representatives from the West, 
who disliked the policy of the leaders of Congress on the tariff 
in 1909 and could not get the hearing for their own plans which 
they thought they deserved. Moreover, Mr. Cannon was often 
needlessly harsh in his rulings and made many personal enemies. 
At length in March, 1910, the Democrats, aided by these "in- 
surgent" Republicans, were able to carry a resolution to the 
effect that the rules committee should consist of ten members 
instead of five, that the said committee should be elected by the 
House instead cf appointed by the Speaker, and that the 
Speaker himself should no longer be a member of the committee. 
When the Democrats, victorious in the election of 1910, took 
possession of the House in 191 1, they provided that all committees 
should be elected by the House. When Mr. Wilson became 
President in 19 13 the leadership in formulating legislative policies 
passed from the Capitol to the White House. 

The change in the machinery for selecting committees was 
no doubt more nominal than real, because the selection was still 
made in caucuses as before.^ The prestige of the Speaker was, 
however, somewhat reduced, and more power was thus trans- 
ferred to other party leaders, particularly the chairman of the 
ways and means committee. More weight was also given, per- 
haps, to the opinions of the rank and file expressed in the caucus. 

1 Above, p. 277. 

286 American Government and Politics 

Leadership there still is in the House, and leadership there 
must be in order to give direction to affairs and to dispose of 
the immense mass of business constantly pressing upon that 
body. But we may say that, for the present, the leadership 
is vested in the chairman of the ways and means committee 
aided by the Speaker and the chairmen of certain of the other 
more important committees. And we may say also that we 
now have from the representatives of the minority party the 
same complaints against "tyranny" and "dictation" which 
were heard in the older days when Speaker Cannon and his few 
colleagues directed the course of procedure. 

The Transaction of Legislative Business in the House 

VI. With this preliminary survey of some of the institutions 
and practices of Congress, we are better able to understand the 
procedure of this body from day to day. The principles govern- 
ing this procedure are to be sought in Jefferson's Manual of Par- 
liamentary Practice J the standing rules of each house, and the vast 
number of precedents established during the history of Congress. 
Whoever finds sheer enjoyment in unravelling complicated prob- 
lems of procedure has an unlimited field for self-indulgence in the 
eight bulky volumes of a thousand pages each, compiled by Mr. 
A. C. Hinds, Clerk of the Speaker's Table, bearing the title of 
Parliamentary Precedents of the House of Representatives} 
Fortunately, however, the principles, or rather lack of principles, 
governing the conduct of business in either house may be under- 
stood by the mastery of a few fundamental practices.^ 

At the opening of a new Congress the House of Representa- 
tives is called to order by the clerk of the last House, who calls 
the roll, and, finding a quorum present, announces that they are 
ready for nominations for Speaker. The majority and minority 
put forward their candidates, and after the former's nominee is 
duly ratified, he takes the oath of office administered by the 
member longest in continuous service of the House. The roll 
is called by the clerk, and the Representatives go forward to be 
sworn in. The other officers are chosen, and the President of the 

' Copies of the rules of both houses may be secured by writing to a Sen- 
ator or Representative. 

2 On Senate procedure, see above, p. 275. 

Congress at Work 287 

United States and the Senate are informed that the House is 
ready for business. The question of the adoption of the rules 
of the preceding Congress is then threshed out, and usually 
carried in the face of the traditional protests of the minority. 
In due time the names of the committeemen selected by the 
caucuses of the parties are read, and approved by the House. 

The Senate differs from the House in being a continuous body. 
At each new Congress only one-third of the members are 
renewed. The presiding officer, the Vice-President, as required 
by the Constitution, takes the chair. In case of his absence, 
his duties are performed by a president pro tefnpore. The newly 
elected Senators are called in alphabetical order by the secretary 
of the Senate, and each Senator in turn is escorted to the pre- 
siding officer's desk, usually by the colleague from his state, and 
there takes the oath of office. The President and House are 
duly notified, and then the Senate is also ready for work. 
. Bills are introduced in the House in several ways. Any 
member may introduce any measure he likes by drafting it and 
depositing it on the clerk's table, or he may introduce a petition 
for a bill which will be referred to an appropriate committee for 
drafting. All really important bills, however, such as tariff 
bills, currency measures, and the like are drafted by the majority 
members of the committee in charge of the subject-matter. 
Sometimes, the committee of the House cooperates with the com- 
mittee of the Senate having charge of similar business, in pre- 
paring a bill. If the matter is very important and the President 
of the United States is interested, he may join with some of the 
committee members in preparing the bill ; and prominent party 
leaders not in office may be consulted. A caucus of party 
members may be held on the bill even before it is introduced. 

On their introduction, all public bills are referred by the 
Speaker to the appropriate committee which may hold hearings 
and give the matter any amount of attention it sees fit. The 
committee may report the bill to the House favorably 
unamended, or it may amend it and report it in such form, or it 
may report unfavorably, or it may neglect it altogether.^ 

The important committees,^ which may report at any time, 
report from the floor, and other committees report by laying 
their reports on the clerk's table. 

* Above, p. 278 2 Above, p. 276. 

288 American Government and Politics 

Unless it is a highly privileged matter, a bill, when reported, 
is placed on a calendar for debate according to the rules. 

All public bills raising revenue or authorizing the appropria- 
tion of money or property are considered in the committee of the 
whole House. In this form, one hundred constitute a quorum 
and the Speaker resigns the chair to some other member. The 
stages in this committee are "general debate, reading for amend- 
ment under the five-minute rule; order to lay aside with a 
favorable recommendation, or to rise and report ; reporting of 
to the House." 

Bills not required to be considered in the committee of the 
whole House are read a second time when they are reached on the 
calendar and are then open to discussion and amendment in 
the House. 

The third reading usually takes place by title and the question 
is put by the Speaker as a matter of course. 

The Constitutional Rights of the Minority in the House 

After this survey of the methods by which the majority in the 
House of Representatives may control the introduction of bills, 
reports of committees, and the discussion and passage of meas- 
ures, it might be presumed that the minority party is without 
power to influence in any effective manner the course of legis- 
lative procedure. This view, however, is not strictly correct. 
By exercising certain constitutional privileges, the minority may 
block proceedings and go a long way toward forcing the majority 
to adopt certain policies. The Constitution provides that on the 
request of one-fifth of the members present, the roll of the House 
must be called on any question, and the yeas and nays of the 
members entered upon the journal. The Constitution further- 
more provides that no business shall be done unless a quorum is 
present, and the minority, in the House or Senate, may therefore 
frequently raise the question of the presence of a quorum. 
Finally, as we have seen, a great deal of the legislative business is 
done under the rule of unanimous consent, which, of course, may 
be steadily refused by the minority members. 

More than once the leader of the minority party has thrown 
down the gage to the majority leaders and frankly informed them 
that unless certain policies were adopted the minority would 

Congress at Work 289 

exercise all of its privileges under the rules for the purpose of 
obstructing business. A notable example of a minority threat 
occurred in March, 1908, when Mr. John Sharp Williams, the 
Democratic leader, announced that his group would refuse unani- 
mous consent to all legislation and would call for the yeas and 
nays upon every affirmative proposition until the majority would 
agree to report on certain bills — measures providing for em- 
ployers' liabihty, publicity of campaign contributions, free wood 
pulp and free print paper, and regulating the granting of injunc- 

The Final Stages of a Measure 

When a bill has passed either house, it is transmitted to the 
other body for consideration. For example, when the Senate 
has passed a bill, it thereupon despatches it to the House by the 
secretary, who, on his announcement by the doorkeeper and 
recognition by the Speaker, addresses that assembly in the 
following language : ''I am directed by the Senate to inform the 
House that it has passed the Senate bill No. 125 [giving the title], 
and that a concurrence of the House therein is respectfully 
requested." If the House passes the bill thus brought in, the 
Senate is notified ; the measure is then signed by the President of 
the Senate and the Speaker of the House, and is sent to the Presi- 
dent of the United States for his signature. If he approves the 
bill, he notifies the House in which it originated of his action, 
and sends it to the Secretary of State for official publication. 
If he vetoes the measure, he returns the bill to the house in which 
it originated, with a statement of the reasons for his action, unless 
that body has adjourned. If a bill originates in the House, it 
is sent to the Senate and goes through a similar process.^ 

* Reinsch, Readings, p. 272. 

^ Although the provisions of the Constitution are explicit to the effect that 
every order, resolution, or vote to which the concurrence of the Senate and 
House of Representativ^es may be necessary (except on a question of adjourn- 
ment) shall be presented to the President, Congress has devised a measure 
known as the "concurrent resolution," which, although it clearly has the 
effect of law, is not submitted to the President for approval. The form of 
this resolution is as follows : Resolved, by the House of Representatives (the 
Senate concurring) that, etc. ; or, Resolved, by the Senate (the House of 
Representatives concurring) that, etc. From the beginning of the govern- 
ment it has been the uniform practice of Congress not to present concurrent 
resolutions to the President and to avoid incorporating in such resolutions 
any matter in the nature of legislation. The concurrent resolution is fre- 

290 American Government and Politics 

Whenever a bill originating in one house is amended in the 
other, it must be returned to the first for reconsideration, and for 
actoption or rejection as amended. If, at last, the houses are 
unable to agree upon a measure, — a regular occurrence in the 
case of important bills, — it is the practice for the presiding officer 
of each body to appoint representatives to a conference committee 
as it called, authorized to discuss the differences, to come to 
some agreement upon the disputed points, and report back to 
the respective houses their agreement, or their inability to come 
to terms. As a general principle the conference committee, in 
coming to an agreement, should introduce no new matter into the 
measure which it has under consideration — that is, no provision 
that has not been already adopted by either the Senate or the 
House. It is, of course, not easy to determine whether new 
matter has been introduced into a long and complicated measure. 
Certainly the conferees are not limited in their action to the 
adoption of the provisions as actually passed by one house or 
the other. They may, and often do, draft a compromise propo- 
sition, perhaps midway between the extremes demanded by the 
two houses, and in drafting this compromise proposition they 
may, of course, change the language of the bill. When a con- 
ference committee report is submitted, each house adopts it, or 
rejects it as a whole ; it does not amend. 

Securing Information for Legislative Action 

In the exercise of its legislative functions, Congress frequently 
makes use of some special committee of investigation. For 
example, it instituted by an act of June 18, 1898, an industrial 
commission consisting of five members of the House of Repre- 
sentatives, five Senators, and nine persons appointed by the 
President — the last to be paid salaries. This commission was 
instructed to investigate questions appertaining to immigration, 
labor, agriculture, and business, and report to Congress and sug- 
gest desirable legislation upon these subjects. This commission 
made a long and exhaustive investigation and reported to Con- 
gress a voluminous mass of testimony and many proposals for 

quently used in ordering the publication of documents, in paying therefor, 
and in incurring and paying other expenses, the moneys for which have been 
appropriated and set apart by law for the use of the two houses. 

Congress at Work 291 

legislative action. More recently, in February, 1907, Congress 
created a joint commission on immigration, consisting of three 
Senators, three members of the House of Representatives, and 
three persons (appointed by the President) — charged with the 
duty of making a full investigation into the subject of immigra- 
tion. A large sum of money was placed at the disposal of this 
commission. In 1913 Congress established an Industrial Re- 
lations Commission, which conducted an elaborate inquiry into 
labor and agricultural problems and startled the whole country 
by the radical character of its findings. 

Sometimes, in conducting investigations. Congress, by a joint 
resolution, authorizes executive officers of the government to 
conduct inquiries and report on specific matters subject to legis- 
lation. For example, on February 12, 1906, by joint resolution, 
Congress instructed the Interstate Commerce Commission to 
make examinations into the subject of railroad discriminations 
and monopolies, and to report on the same from time to time. 
Furthermore, Congress has required certain federal courts to 
compel witnesses to testify before the Interstate Commerce 
Commission, and the Supreme Court has held this law consti- 
tutional. The Court declared that it was clearly competent for 
Congress to invest the Commission with an authority to require 
the attendance and testimony of witnesses and the production 
of books, papers, and documents relating to any matter legally 
committed to that body for investigation. In considering, 
however, the question as to whether the Commission itself could 
be authorized to compel obedience to its orders by a judgment of 
fine or imprisonment, the Court said : ''Except in the particular 
instances enumerated in the Constitution . . . the power to 
impose fine or punishment in order to compel the performance 
of a legal duty imposed by the United States, can only be exer- 
cised under the law of the land by a competent judicial tribunal 
having jurisdiction in the premises." ^ 

Whatever may be the theory as to the power of Congress to 
investigate the working of executive departments,^ there is as a 
matter of fact a long line of precedents showing that both houses 
from time to time assume the right of investigating the conduct 
of executive business. For example, in 181 8, the House of 
Representatives appointed a committee to inquire whether any 

1 Hinds, Precedents, Vol. IV, pp. 114 ff. ^ ggg above, p. 209. 

292 American Government and Politics 

clerks or other officers in any of the departments or in any office 
at the seat of the general government had conducted themselves 
improperly in their official duties, and authorized the committee 
to send for persons and papers. When it was contended that 
this resolution assumed a power over executive departments that 
belonged to the President alone, and would thus impair executive 
responsibility, it was answered that the House was like a grand 
jury to the nation and that it was its duty to inquire into the 
conduct of public officers. A year later the House asserted that, 
having the constitutional right to concur in the appropriation of 
public moneys, it also had the right to examine into the applica- 
tion of appropriations for the purpose of discovering whether 
they had gone into the proper channels. From that day to this, 
it has been a frequent practice for both houses to make investiga- 
tions into the various branches of the pubHc service. 

Notwithstanding these and other precedents, it is still an 
open question how far Congress or either house may go in 
compelling the executive branches of the government to yield 
any information demanded. For example, in 1909, the Sen- 
ate, by a resolution, directed the Attorney-General to inform 
that body whether he had instituted proceedings against the 
United States Steel Trust for absorbing the Tennessee Coal 
and Iron Company in violation of the Sherman anti-trust law, 
and if not, why not ; and whether he had rendered an opinion 
as to the legality of the said absorption. President Roosevelt 
directed the Attorney- General not to respond to the demand 
for the reasons for his non-action in the case. The President 
further declared that "heads of departments are subject to the 
Constitution and laws passed by the Congress in pursuance of 
the Constitution, and to the direction of the President of the 
United States and to no other direction whatever." 

The chief sources of information for legislative action are, 
of course, the hearings and investigations conducted by the 
standing committees of Congress to which the bills introduced 
into Congress are referred for study and action. Each of the 
important standing committees has a commodious and well- 
equipped room in one of the magnificent office buildings 
constructed for the Senate and House. Every leading com- 
mittee has a library of materials bearing on the subjects 

Congress at Work 293 

referred to it and also has at its command the extensive re- 
sources of the Congressional Library. Committees may also 
call upon the Legislative Drafting Service, of which there are 
two branches, one for the Senate and another for the House. 
The Library of Congress maintains a division of Legislative 
Reference charged with the duty of furnishing information on 
questions pending before the houses. 

In conducting investigations, the committee may hold its 
sessions in secret and admit only those persons invited or re- 
quired to attend; or the committee may hold open sessions 
and admit the general public to hear the presentation of argu- 
ments and evidence. Always before the enactment of a new 
tariff, the ways and means committee holds open sessions and 
allots time generously to private parties and representatives of 
manufacturing interests who may have something to say on 
the desirability of changing the tariff schedules. How far 
these inquiries actually throw light on the problems before 
Congress depends largely upon the skill with which the hear- 
ings are conducted and the actual interest of the committee 
members in obtaining results. 

Finally, the student may naturally inquire whether debates 
in Congress do not afford information on legislative questions. 
In the Senate, it frequently happens that speeches, particu- 
larly on constitutional law, really illuminate problems before 
that body ; but it cannot be said that the House derives much 
information from the desultory and partisan speeches delivered 
■ there. Mr. Bryce attributes this absence of informing debates 
to the committee system itself. 

In fact, the average member of the House is absorbed in his 
own affairs and the work of the committees to which he is as- 
signed. He is, therefore, not strongly inclined, as a rule, to 
question the wisdom of the results reported by other commit- 
tees. He assumes that the members of the other committees 
know more about their business than he does, and furthermore 
he does not like to stir up trouble for himself by criticisms of 
their work.^ 

^ For observations on the character of congressional legislation and com- 
parisons with the British system, see Bryce, American Commonwealth, 
Vol. I, pp. 167-75; 278-97. 



The Constitution of the United States makes only sKght 
reference to the structure of the federal courts.^ It merely 
provides that the judicial power of the United States shall be 
vested in one Supreme Court and in such inferior courts as Con- 
gress may from time to time ordain and estabUsh. It is thus 
within the power of Congress to determine the number of Judges 
in the Supreme Court and to create any additional tribunals 
which may be deemed necessary for the transaction of federal 
business. It is true, the Constitution seeks to secure a certain 
degree of independence for the judiciary, by prescribing that the 
Judges of both the Supreme and inferior courts shall hold office 
during good behavior and receive for their services a compensa- 
tion not to be diminished during their continuance in office; 
but in reaUty the federal courts are largely creations of the 

While Congress may not remove the judges of an inferior 
court, except by the process of impeachment, it may get rid of 
them by aboHshing the court altogether. This was actually 
done in 1802, during Jefferson's administration, when the Re- 
pubUcan Congress repealed the law of the preceding year creating 
sixteen circuit judgeships which President Adams had filled with 
Federalists on the last night of his term, and again in 1913 when 
Congress aboHshed the Commerce Court created in 1909. 
Of course, Congress cannot abohsh the Supreme Court, remove 
any of its Judges except by impeachment, or reduce their salaries 
during their respective terms of service, but it may ^ by poHtical 
methods "pack" the Supreme Court very much as the House of 
Lords of England can be packed if it should refuse to adopt a 
measure passed by the Commons. It may, if it chooses, re- 

* Readings, p. 273. 

'Burgess, Political Science and Constitutional Law, Vol. II, p. 321. 

* In collusion with the appointing power — the President and Senate. 


The Federal Judiciary 295 

duce the number of Judges by providing that, oh the death or 
resignation or removal of any Judge, the particular judgeship 
shall be abolished.^ Again, it may increase the number of Judges 
in order to secure the appointment of men known to entertain cer- 
tain views as to the constitutionaUty of any particular measures. 
Congress may furthermore influence, in a way, the judicial de- 
partment by refusing to provide the requisite number of inferior 
courts or adequate processes. However, the judiciary^ save in 
two or three instances, has not been controlled by any of these 
methods, and it therefore enjoys, for practical purposes, a high 
degree of independence from legislative interference. 

The framers of the Constitution evidently contemplated an 
independent judicial system and, while the constitutional pro- 
vision with regard to the judiciary is not self-executive, an im- 
perative mandate is certainly laid upon Congress to organize 
the Supreme Court and to create inferior courts. As Senator 
\ Spooner has put it, it would be revolutionary for Congress to 
omit the organization of the Supreme Court and the estabUsh- 
ment of inferior courts.^ Indeed, Senator Stone has gone so 
far as to say that the inferior courts are established as a pubUc 
necessity and in pursuance of a pubUc policy outlined in the 
Constitution, and cannot be arbitrarily aboUshed. "Congress 
has power to create," he declared, *'but has no power to destroy. 
Congress cannot destroy the judiciary any more than the judi- 
ciary can destroy Congress If to-day Congress should 

pass an act abolishing all the circuit and district courts of the 
United States without substituting other tribunals in their stead, 
can there be any doubt that the Supreme Court would declare 
the act to be unconstitutional and void ? " ^ It is difficult to 
see, however, what the Court could accomplish by declaring 
such a law void. 

The Federal Courts 

All federal Judges are nominated by the President and ap- 
pointed by and with the advice and consent of the Senate. 
With regard to the inferior courts, this mode of appointment is 

^ This was actually done in 1866 to prevent President Johnson from filling 

"^Congressional Record, Vol. XL, part 5, pp. 4115-4117. 
^Ihid., Vol. XL, part 5, p. 4772. 

296 American Government and Politics 

a matter of practice rather than of constitutional law. The 
Constitution provides that the President and Senate are to 
appoint the Judges of the Supreme Court; but authorizes Con- 
gress to vest the appointment of such ''inferior officers" as it 
thinks proper in the President alone, in the courts of law, or in 
the heads of departments. By uniform practice, however, it 
is settled that the judges of the inferior federal courts are not 
*' inferior officers" whose appointment may be taken from the 
President and Senate and vested in some other authority. The 
Judges of the Supreme and inferior courts hold office during 
good behavior, and therefore cannot be removed except by im- 

Under these constitutional provisions Congress has created the 
following scheme of courts: — 

I. At the head of the system stands the Supreme Court com- 
posed of nine Judges.^ This Court holds its sessions usually 
from October until May in the chamber of the Capitol formerly 
occupied by the United States Senate. The most important 
business that comes before it involves questions of constitutional 
law brought up from lower federal courts or from state courts on • 
appeal or by writ of error. ^ 

The cases are presented to the Judges in the arguments of 
attorneys or in printed briefs or by both methods. A case as 
presented contains a statement of the facts involved in the con- 
troversy and the arguments of the attorneys on the law and 
facts. When a case is submitted, it is the duty of each Justice 
to examine the facts and the arguments and to apply the law. 
After each Judge has looked at the case independently, a con- 
ference is held at which the various points are discussed at length 
and a decision reached. Thereupon, the Chief Justice requests 
one of his colleagues ^ to prepare what is called ''the opinion of 
the court, " which contains the conclusions reached by the majority 

* A Chief Justice and eight Associate Justices. Six Judges must be present 
at each trial and a majority is necessary for a decision. The salary of the 
Chief Justice is $15,000 and of the Associate Justice $14,500- 

2 It is not very often that the Supreme Court is called upon to try an 
original case affecting ambassadors, public ministers, and consuls, but there 
have been several cases of disputes between states over boundaries and other 
matters which have been brought before that tribunal as a court of first 

^ Of course he may write the " opinion " himself. 

The Federal Judiciary 297 

and the final order in the disposition of the case. This "opinion " 
is subjected to the scrutiny of the Judges and after a careful 
revision, which then represents the solemn and final conclusion 
of the Court, it is printed and placed on record. Any Judge, 
who agrees with the judgment of the majority, but bases his 
conclusion on other arguments than those put forward in the 
opinion, may prepare what is called a "concurring opinion," 
in which he sets forth his own reasons for reaching the same 
end. In some instances, therefore, a majority of the Court may 
agree that a particular case shall be decided in favor of the 
plaintiff (or defendant), but each Justice may assign different 
reasons for his own action. 

It is also the practice, in all important cases, for the minority 
of the Judges who disagree with the conclusion reached by the 
majority to prepare a "dissenting opinion," setting forth their 
reasons for believing that the case should have been decided 
otherwise. Sometimes each of the dissenting Judges prepares 
his own opinion ; sometimes one of them writes an opinion which 
is concurred in by his dissenting colleagues. As a matter of 
fact, many crucial cases involving constitutional law have been 
decided by a narrow majority — within recent years, five to 
four. The opinions thus rendered are officially pubHshed as the 
United States Reports, and at the present time the opinions for a 
single term of the Court extend to three or four volumes. They 
form the great authoritative source of information on the histor- 
ical development and present status of constitutional law. 

2. Immediately under the Supreme Court is a Circuit Court 
of Appeals in each of the nine great circuits into which the United 
States is divided.^ The act of 1891, which estabHshed this Court 
for the purpose of relieving the Supreme Court somewhat from 
the pressure of business, did not create a new set of judges for 

* The first circuit embraces Maine, Massachusetts, New Hampshire, and 
Rliode Island; the second, Connecticut, New York, and Vermont; the third, 
Delaware, New Jersey, and Pennsylvania; the fourth, Maryland, North 
Carolina, South Carolina, Virginia, and West Virginia; the fifth, Alabama, 
Florida, Georgia, Louisiana, Mississippi, and Texas; the sixth, Kentucky, 
Michigan, Ohio, and Tennessee; the seventh, Illinois, Indiana, and Wiscon- 
sin; the eighth, Arkansas, Colorado, Oklahoma, Iowa, Kansas, Minnesota, 
Missouri, Nebraska, New Mexico, North Dakota, South Dakota, Utah, and 
Wyoming,; the ninth, Alaska, Arizona, California, Idaho, Montana, Nevada, 
Or^on, Washington, and Hawaii. 

298 American Government and Politics 

each Court of Appeals, but employed judges from the lowei 
federal courts to do the appeal work.^ However, by the great 
reorganizing statute of March 3, 191 1, provision was made for 
separate judges for the Circuit Courts of Appeals, known still 
as Circuit Judges. In those circuits which have a large amount 
of business there are four judges, in the smaller circuits two 
judges, and in the remainder three judges, appointed by the 
President and Senate. Each of the Justices of the Supreme 
Court is allotted to one of the nine circuits. 

The Circuit Court of Appeals has the right to review, by appeal 
or on writ of error, decisions in the lower District Courts, and its 
decision is final in a large number of cases, such as controversies 
between aliens and citizens, suits between citizens of different 
states, and cases arising under patent, revenue, and criminal 
laws. However, the Circuit Court of Appeals may ask the 
Supreme Court for instructions on any point of law ; and the 
Supreme Court may call the case up and decide it, or may 
inquire by writ of certiorari into final causes pending in the Cir- 
cuit Court of Appeals. Appealed cases from the lower federal 
courts within a circuit go to the Circuit Court of Appeals, unless 
they involve the jurisdiction of the lower court, final sentences 
and decrees in prize cases, or the Constitution, or the constitu- 
tionality of laws, or treaties of the United States, or the constitu- 
tionality of an act of any state — in which instances appeals 
may be taken directly -from the lower courts to the Supreme 
Court of the United States. This reserves, therefore, to the 
Supreme Court the decision of cases involving constitutionahty, 
and gives to the Circuit Court of Appeals the final decision in 
nearly all other cases involving merely the application of ordi- 
nary law. As a matter of fact, however, it is relatively easy to 
raise the question of constitutionality, so that this new Court 
has not been able to render the expected services in relieving the 
great tribunal at Washington. 

3. The lowest federal Court is the District Court. Formerly 

1 The law still provides, "In case the full court [of appeals] at any time 
shall not be made up by the attendance of the Chief Justice or Associate 
Justice of the Supreme Court of the United States and circuit judges, one or 
more district judges shall be competent to sit in the court ... as shall be 
designated by the court." At least one term must be held annually at a 
place designated by law, and other terms are held at times and places des- 
ignated by the order of the court. 

The Federal Judiciary 299 

there was a Circuit Court between the Circuit Court bf Appeals 
and the District Court, but that court was abolished by the law 
of March 3, 191 1, and its business transferred to District Courts. 
The whole country is laid out into some eighty or ninety districts 
and in each of these there are appointed by the President and 
Senate one, two, three, or four district judges, according to the 
amount of business to be transacted. Each of the more sparsely 
populated states constitutes a single district; other states are 
divided into two or more districts ; and the great state of New 
York is divided into four districts. 

Each large district is usually divided into "divisions" and the 
law provides the dates and places for holding terms of the Dis- 
trict Court within each division. By turning to the law, any- 
one can find in what district he resides and the date and place for 
the term of court in his district or division, as the case may be. 
For example, the law of 191 1 runs, "the state of New Hampshire 
shall constitute one judicial district to be known as the district 
of New Hampshire. The terms of the District Court shall be 
held at Portsmouth on the third Tuesdays in March and Septem- 
ber ; at Concord on the third Tuesdays in June and December ; 
and at Littleton on the last Tuesday in August." 

The matters which may be brought to trial in a federal 
District Court are so various in character and so numerous that 
they need to be studied only by the practising lawyer whose 
business it is to discover the proper forum in which his cUents' 
business may be taken.^ The jurisdiction of the District Court 
embraces (among other things) all crimes and offences cognizable 

* In addition to this r^ular hierarchy of courts, Congress has created from 
time to time special courts. There is a Court of Claims composed of a chief 
justice and four associate judges whose duty it is to hear claims against the 
federal government. If it decides that a certain amount of money is due 
from the United States to any party, it cannot order payment, but must de- 
pend upon appropriations made by Congress. This Court partially relieves 
Congress of the great political pressure brought on behalf of private claims. 
Congress has also created a judicial system for the District of Columbia 
comprising a court of appeals, a supreme court, and minor courts of the 
justices of the peace, a police court, and a juvenile court. The Payne-Aldrich 
tariff law of igog created a Customs Court, consisting of a presiding judge 
and four associates, to which court appeals may be taken from the decisions 
of the Board of General Appraisers on questions of jurisdiction and law. 
In igio a Commerce Court was created to hear cases arising under the inter- 
state commerce law, but it was aboHshed in 1913. 


American Government and Politics 

under the 'authority of the United States, cases arising under the 
internal revenue, postal, and copyright laws, proceedings in 
bankrupcty, all suits and proceedings arising under any law 
regulating the immigration of aliens or under the contract labor 
laws, and also all suits and proceedings arising under any law to 
protect trade and commerce against restraints and monopolies. 

In close relation to the judiciary are the Department of Justice 
and the great army of United States attorneys and marshals 
in the judicial districts in the states and territories. ^ The 
head of the Department of Justice is the Attorney- General of 
the United States, who is the chief law officer of the federal 
government. "He represents the United States in matters in- 
volving legal questions ; he gives his advice and opinion when 
they are required by the President or by the heads of the other 
executive departments on questions of law arising in the ad- 
ministration of their respective departments ; he appears in the 
Supreme Court of the United States in cases of especial gravity 
and importance; he exercises a general superintendence and 
direction over the United States attorneys and marshals in all 
the judicial districts in the states and territories ; and he pro- 
vides special counsel for the United States whenever required 
by any department of the government." The enforcement of 
important federal laws, therefore, depends largely upon the 
activity of the Attorney- General, or rather upon the pressure 
brought to bear upon him by the President. 

A very good example of the way in which the President 
may control the Attorney- General is afforded by the Tennessee 
Coal and Iron affair in 1909, when President Roosevelt per- 
mitted the absorption of that concern by the United States 
Steel Corporation in alleged violation of the Sherman anti-trust 
law. When the Senate demanded why prosecution was not 
instituted, the President replied that the Attorney- General 
was subject, under the laws, to the direction of himself and 
no one else. 

In each of the judicial districts there is a United States district 
attorney 2 who represents the government in the prosecution and 
defence of causes arising within his district. There is also in 
each district a marshal^ whose duty it is to enforce the orders of 

1 See above, p. 297. 2 With one or more assistants. 

2 Assisted by a number of deputies. 

The Federal Judiciary 30I 

the federal courts, to arrest offenders against federal law, and 
to otherwise assist in the execution of that law. Both of these 
officers are appointed by the President and Senate. 

The Federal Jitdicial Power 

The jurisdiction of the federal courts is defined in the Con- 
stitution. It embraces, on the one hand, cases affecting certain 
persons or parties and, on the other hand, cases relative to certain 

1. In the first place, the jurisdiction of the federal courts covers 
cases affecting ambassadors, other pubUc ministers and consuls; 
controversies to which the United States is a party; controversies 
between two or more states, between a state and citizens of 
another state, between citizens of different states,^ and between 
a state or the citizens thereof and foreign states, citizens or 
subjects — with the provision that the judicial power shall not 
extend to any suit in law or equity commenced or prosecuted 
against one of the United States by American citizens or by 
citizens of foreign states. When any of these parties are in- 
volved in controversies, the case may come under federal judicial 
power, regardless of the nature of the matter in controversy. 
So much for the jurisdiction of the federal courts over parties. 

2. In the next place, the federal judicial power extends to 
certain matters, regardless of the character of the parties involved 
in the controversy; that is, to all cases in law and equity arising 
under the Constitution, the statutes, and the treaties of the United 
States and to all admiralty and maritime cases. 

A case, according to Story,^ arises "when some subject touch- 
ing the Constitution, laws, or treaties of the United States is 
submitted to the courts by a party who asserts his rights in the 
form prescribed by law," In other words, a case in law or equity 
comes within the federal judicial power whenever a correct de- 
cision of the controversy involves in any way the interpretation 
of the Constitution or federal laws or treaties.^ 

* Also between citizens of the same state claiming lands under grants of 
different states. For the purposes of suing in federal courts corporations are 
regarded as " citizens," but for other purposes they are regarded as " persons." 

^ Commentaries, Vol. II, section 1646. 

3 Of cours3 it is often the duty of state courts to apply federal law, but 
provision is made for appeal from their decisions. See below, p. 308. 

302 American Government and Politics 

With the exception of two classes of cases, the Constitution 
does not say which of the federal courts shall have jurisdiction 
over any particular matter, but leaves the distribution of the 
judicial powers to Congress. The two exceptions are cases 
affecting ambassadors, other pubUc ministers, and consuls and 
cases in which a state may be a party. Over such cases the Su- 
preme Court, under the Constitution, has original, but not ex- 
clusive, jurisdiction; that is to say, whenever any such case 
arises, it may be taken into the Supreme Court in the very begin- 
ning, without having been previously tried in any lower court. 
Since, however, the Constitution does not confer exclusive juris- 
diction in such matters, it is left for Congress to decide whether 
any other federal court or courts may also try these cases and 
imder what Umitations. Over all other cases faUing within the 
scope of the federal judicial power, the Supreme Court has only 
appellate jurisdiction as to law and fact, subject to such excep- 
tions and under such regulations as Congress may make. 

The Great Writs 

In the exercise of their judicial functions the federal courts 
have the power of issuing certain writs which affect very funda- 
mentally the rights of citizens. 

I. The first and most famous of these writs is that of habeas 
corpus. This writ is designed to secure to any imprisoned person 
the right to have an immediate preliminary hearing for the pur- 
pose of discovering the reason for his detention. For example, 
a United States marshal in the execution of the revenue laws 
kills a citizen of a state and is arrested and imprisoned by the 
state authorities. His attorney appHes to some near-by federal 
court for a writ of habeas corpus, which writ will require the 
state officer having charge of the prisoner to produce him in 
the federal court where the reasons for his arrest and detention 
are to be examined. 

The Supreme Court and Circuit and District courts of the 
United States have the power of issuing writ's of habeas corpus, 
and the several justices and judges of these courts within their 
respective jurisdictions have the power of granting the writ for 
making inquiries into the cause of arrest. This does not mean, 
however, that a federal judge may issue the writ indiscriminately. 

The Federal Judiciary 303 

It can only be issued when a prisoner is in jail under federal 
custody or authority; or for some act done or omitted in pur- 
suance of alaw of the United States or the order, process, or decree 
of some federal court or judge; or is in prison in violation of the 
Constitution or some law or treaty of the United States; or is 
a citizen of a foreign country claiming to be imprisoned for 
some act committed with the sanction of his government.^ In 
other words, a federal judge cannot issue a writ of habeas corpus 
in behalf of some person who merely claims that he is detained in 
\dolation of the law of a commonwealth. He must be a prisoner 
held either under federal authority, or by state authority in 
violation of some law of the United States. 

The apphcation for a writ of habeas corpus is made to the 
proper court by a complaint in writing, signed by the prisoner, 
setting forth the facts concerning his detention and the reasons 
for his imprisonment, if they are known to him, and stating in 
whose custody he is held. It is the duty of the judge upon 
apphcation to grant the writ, unless it is evident from the appli- 
cation itself that the prisoner is not entitled to it under the law. 
Within a certain time the person to whom the writ is directed 
must make due return, bringing the prisoner before the judge 
and certifying as to the cause of his detention. The court or 
judge, thereupon, must proceed in a summary way to examine 
the facts, hear the testimony and arguments, and either release 
the prisoner (if he is detained in violation of the law), or remand 
him for trial if there is no warrant, under the law, for interfering. 

2. The second writ is the writ of mandamus which is used 
against public officials, private persons, and corporations for 
the purpose of forcing them to perform soms duty required of 
them by law." The mandamus is prooerly used against executive 
officers to compel them to perform some ministerial duty.^ 
Where the duty is purely discretionary and its performance 

^ Taylor, Jurisdiction and Procedure of the United States Supreme Court, 
P- 503. 

^ It was early settled by judicial decision that no federal court (except the 
Supreme Court of the District of Columbia) could issue the writ of man- 
damus except in aid of the exercise of jurisdiction acquired in some other way. 

^ An excellent example of the use of mandamus is afforded by the case of 
Postmaster-General Kendall, who was ordered by the Supreme Court to obey 
the provisions of an act of Congress directing him to pay certain sums duo 
to mail-carriers under government contract (1837). 

304 American Government and Politics 

depends upon the pleasure of the ofl&cial or upon his own inter- 
pretation of the law, the court will not intervene. In general, 
any one seeking the writ of mandamus to compel a federal, 
officer to perform an act must show that he has no other ade- 
quate legal remedy and that he has a clear legal right to have 
the action in question performed by the officer. ''It is ele- 
mentary law that mandamus will only issue to enforce a min- 
isterial duty as contradistinguished from a duty that is merely 
discretionary. This doctrine was clearly and fully set forth by 
Chief Justice Marshall in Marbury v. Madison and has since been 
many times reasserted by this Court." ^ The writ of mandamus 
is also often used to compel an inferior court to pass upon some 
matter within its jurisdiction which it has refused to hear or 
act upon.^ 

3. The third great writ is the writ (or bill) of injunction. 
This writ may be used for many purposes. Sometimes it takes 
the form of a mandatory writ ordering some person or corpora- 
tion to maintain a status quo by performing certain acts. Thus, 
for example, the employees of a railway may be forbidden to 
refuse to handle the cars of some company which they wish to 
boycott; in other words, may be ordered to continue to perform 
their regular and customary duties while remaining in the ser- 
vice of their employer.^ Sometimes the injunction takes the 
form of a temporary restraining order forbidding a party to alter 
the existing condition of things in question until the merits 
of the case may be decided. Sometimes the writ is in the form 
of a permanent injunction ordering a party not to perform some 
act the results of which cannot be remedied by any proceeding 
in law. 

The question of injunctions has been brought into national 
pontics by the frequency with which federal courts have issued 
them in labor disputes. Inasmuch as corporations are often 
"citizens" of some other state than that in which their striking 
laborers reside, it is easy for them to seek rehef at the hands of the 
federal courts on the ground of diversity of citizenship.'' In- 
junctions are also occasionally granted by the federal courts in 

^ The United States, etc., v. Lament, 155 U. S. R., 308. 
^Taylor, Jurisdiction and Procedure, pp. 512 ff. 
3 Judson, The Law of Interstate Commerce (1905), p. 127, note 3. 
* See above, p. 301 and note i. 

The Federal Judiciary 305 

cases involving interference with interstate commerce — a 
matter coming under federal authority. For example, during 
the famous Chicago strike in 1894, the federal district court in 
that city issued a general injunction to all persons concerned, 
ordering them not to interfere with the transmission of the mails 
or with interstate commerce in any form. Mr. Debs, who was 
directing the strike which was tying up interstate commerce, 
was arrested, fined, and imprisoned for refusing to obey this in- 
junction. Debs thereupon, through his counsel, claimed the 
right to jury trial, asserting that the court could not impose a 
penalty which was not provided by statute. On appeal, the 
Supreme Court affirmed the right of the lower court to grant an 
order enjoining any person from interfering with interstate 
commerce over natural or artificial highways, and held that im- 
prisonment for contempt of court did not violate the principle of 
due process of law. 

Accordingly, this power of the federal courts to issue injunc- 
tions was brought into poUtics by working-men who claimed 
that those courts, in many instances, issued writs hastily, arbi- 
trarily, and with prejudice to their legal rights. In 1908 the 
question was taken up by both of the great political parties. The 
Democratic party said in its platform: ''We believe that the 
parties to all judicial proceedings should be treated with rigid 
impartiality and that injunctions should not be issued in any 
cases in which injunctions would not issue if no industrial dispute 
were involved "; and furthermore reiterated the pledges of 
1896 and 1904 — trial by jury in all cases of persons arrested 
for indirect contempt ; that is, contempt committed outside the 
presence of the court. On account of the stand taken by the 
Democratic party, Mr. Gompers, President of the American 
Federation of Labor, came out openly in support of Mr. Bryan 
and attempted to secure for him the labor vote throughout the 
United States. 

The issue was also taken up by the RepubHcans. In their 
platform they declared, " that the rules of procedure in the federal 
courts with respect to the issuance of the writ of injunction 
should be more accurately defined by statute and that no injunc- 
tion or temporary restraining order should be issued without 
notice, except where irreparable injury would result from delay, 
in which case a speedy hearing thereafter should be granted." 

3o6 American Government and Politics 

In his acceptance speech, Mr. Taft said that threatened unlawful 
injuries to business could only be satisfactorily met by an injunc- 
tion to prevent them, because a suit for damages offered no 
adequate remedy. He furthermore urged that the interjection 
of a jury trial between the orders of a court and their enforce- 
ment would fundamentally weaken the power of the court. 
"Under such a provision," he contended, "a recalcitrant witness 
who refuses to obey a subpoena, may insist on a jury trial before 
the court can determine that he received the subpoena. The 
citizen summoned as a juror and refusing to obey the writ when 
brought into court must be tried by another jury to determine 
whether he got the summons; such a provision applies not only to 
injunctions, but to every order which the court issues against 
persons. A suit may be tried in the court of first instance and 
carried to the Court of Appeals and thence to the Supreme Court, 
a judgment and decree entered, and an order issued, and then, if 
the decree involves the defendant's doing anything or not doing 
anything and he disobeys it, the plaintiff, who has pursued his 
remedies in lawful courts for years, must, to secure his rights, 
undergo the uncertainties and the delays of a jury trial before he 
can enjoy that which is his right by the decision of the highest 
court of the land." 

Mr. Taft, however, expressed his concurrence in the declara- 
tion of the RepubUcan platform to the effect that the "rule of 
procedure in the federal courts with respect to the issuance of 
the writ of injunction should be more accurately defined by 
statute." In his message of December 7, 1909, to Congress, he 
made specific recommendations as to such legislation. 

Finally, in 19 14, after Congress had passed into the hands of 
the Democrats, it enacted the Clayton anti- trust law which, 
among other things, exempted labor from the provisions for- 
bidding combinations in restraint of trade and limited materially 
the use of the injunction in labor disputes. It legalized specifi- 
cally peaceful picketing and labor assemblies. It stipulated 
that no injunction should be issued to prohibit persons from 
stopping work either singly or in concert and provided trial by 
jury in cases of contempt committed outside of the court. During 
the World War, however. Congress passed the Lever law penal- 
izing certain acts limiting production, and under this law the 
district judge at Indianapolis issued an injunction (1919) order- 

The Federal Judiciary 307 

ing striking miners to resume work. The question of the in- 
junction thereupon became a labor issue again. 

The Power of Passing upon the Constitutionality of Statutes 

The jurisdiction of the federal courts extends not only to cases 
in law and equity in the strict sense of the word ; it extends to 
cases involving the constitutionahty of state and federal laws. 
It is nowhere expressly provided in the Constitution that the 
federal courts shall have the power to declare a statute of Con- 
gress or of a state legislature invaUd on the ground that it con- 
flicts with the Constitution. Indeed, it is contended by some 
writers that it was not the purpose of the framers to confer such 
a power, especially over federal statutes, upon the courts of the 
United States. For example, the Honorable Walter Clark 
recently declared that the federal judiciary has clearly usurped 
authority in this regard.^ Long ago, Mr. Jefferson held that it 
was the design of the framers to establish three coordinate and 
independent departments of government, and that to give the 
judiciary the power of passing upon the acts of the other depart- 
ments would be to make that branch of the government supreme 
over the other two branches.^ 

It is, of course, not'possible to determine what was the inten- 
tion of every member of the convention at Philadelphia which 
framed the federal Constitution; and there is reason to believe 
that some of them, at least, did not desire to make entirely clear 
the precise nature of the authority which they had conferred 
upon the federal judiciary. Spealdng of the language of the 
federal Constitution, Gouverneur Morris, who was one of the 
leaders in the convention, wrote: "Having rejected redundant 
and equivocal terms, I believed it as clear as our language would 
permit; excepting, nevertheless, a part of what relates to the 
judiciary. On that subject conflicting opinions had been main- 
tained wdth so much professional astuteness that it became neces- 
sary to select phrases which expressing my own notions would 
not alarm others nor shock their self-love." ^ 

On the other hand, however, some of the members of the con- 
vention, even before the adoption of the Constitution, expressed 

* See the Independent, Sept. 26, :t907. 
"^ See Readings y p. 281. 

* Sparks, Life of Morris, Vol. Ill, p. 323. 

3o8 American Government and Politics 

their belief that the federal judiciary would have the power to 
pass upon the constitutionaUty of laws. This side of the case was 
very plainly put by Hamilton in The Federalist: ''The interpre- 
tation of the laws is the proper and pecuUar province of the 
courts. A constitution is, in fact, and must be, regarded by the 
judges as a fundamental law. It must, therefore, belong to 
them to ascertain its meaning, as well as the meaning of any par- 
ticular act proceeding from the legislative body. If there 
should happen to be an irreconcilable variance between the two, 
that which has the superior obligation and vaUdity ought, of 
course, to be preferred; in other words, the Constitution ought 
to be preferred to the statute, the intention of the people to the 
intention of their agents."^ 

At all events, whatever may have been the intention of the 
framers, Chief Justice Marshall, in the famous case of Marbury 
V. Madison, demonstrated with logic that has never been an- 
swered that the Court under the Constitution possesses the 
power of declaring statutes void when they conflict with funda- 
mental law.2 

Congress has provided by law the precise way in which the 
constitutionality of the statutes and acts of states may be tested 
in the Supreme Court of the United States., A case may be taken 
to that Court from the highest court of a state having jurisdiction 
over the cause, whenever the latter denies the validity of a federal 
treaty or statute or of an authority exercised under the United 
States. A case may be taken to the Supreme Court from 
any such state court whenever, during the trial, any statute of, 
or authority exercised under, the state in question is claimed to 
be repugnant to the Constitution, treaties, or laws of the United 
States, and is nevertheless upheld by the state court. When- 
ever a state law is declared by the state court to violate the fed- 
eral Constitution, appeal also maybe taken to the Supreme Court. 

To make the process of testing the constitutionality of a state 
statute clear, let us examine a concrete case. The legislature of 
New York passed a law providing that no employees should 
be required or permitted to work in bakeries more than sixty 

1 See Beard, The Supreme Court and the Constitution. For colonial prece- 
dents, see the full and critical review by C. G. Haines, The American 
Doctrine of Judicial Supremacy, chaps, iv and v. 

2 For this important opinion, rendered in 1803, see Readings, p. 274. 

The Federal Judiciary 309 

hours a week, or ten hours a day. Mr. Lockner, an employ- 
ing baker of New York, claimed that this statute infringed the 
rights which he enjoyed as a citizen under the Constitution of 
the United States, and resisted its enforcement. The case was 
carried to the highest court in the state of New York, which 
upheld the statute. The decision having been against the right 
which he claimed under the federal Constitution, Lockner there- 
upon carried his case to the Supreme Court of the United States, 
which decided in his favor, declaring the law of New York null 
and void as being in conflict with certain provisions of the federal 

It must be noted that the federal court will take no notice of 
the constitutionaUty of a statute except when the latter is brought 
to its attention in the form of a case involving the rights of parties 
to a suit. 

In deciding against the validity of a statute, the Supreme 
Court does not officially annul that statute, in the way in which a 
governor or President might veto it ; it merely refuses to enforce 
the statute in the particular case before it. Thereupon, the 
executive department of the federal government, or of the state 
government, as the case may be, simply drops the enforcement 
of the law. 

In no instance will the federal judiciary consider the constitu- 
tionality of any law in the abstract or render any opinion either 
to Congress or to the President on the validity of a proposed 
statute. This practice of the court was adopted early. In 1793, 
Washington sought the advice of the Supreme Court by proposing 
to that body twenty-nine different questions, which the Court 
respectfully dechned to answer on the ground that it could give 
opinions only in regular cases properly brought before it in the 
course of ordinary judicial proceedings.^ Federal practice in 
this regard, therefore, differs from that in some of the states. 

1 See Readings, p. 617. 

2 The Supreme Court has not declared very many acts of Congress invalid. 
From its foundation to 1903 it had pronounced void only twenty-one acts of 
Congress. In considering the constitutionality of federal statutes the Court 
has laid down the rule that it will not declare a law void except when there 
is no doubt in the mind of the Court as to its unconstitutionality. For a 
valuable treatment of the whole subject of judicial control over statutes, 
see B. F. Moore, The Supreme Court and Unconstihitional Legislation 
(Columbia University Studies). 

310 American Government and Politics 

The power of the Court to pass upon the acts of state govern- 
ments was early resisted by Jefferson and the stanch defenders of 
states' rights. They admitted the supremacy of the federal gov- 
ernment within its sphere, but they contended that to give the 
federal judiciary the right to determine the validity of state laws 
would enable the federal government to define its own sphere of 
power and thus reduce the states to mere administrative subdivi- 
sions.^ However, the leaders of the states' rights party did not 
offer any adequate plan for settling amicably disputes between the 
federal and state governments over their respective limits of 
power and for obviating the endless complications that would 
arise from conflicting decisions in the state courts if there were 
no final tribunal of appeal to give uniformity to them. The 
logic by which the federal judiciary secures its authority to pass 
upon the validity of state acts is as inexorable as the logic of 
Marshall's opinion in Marbury v. Madison.^ 

Political Controversies over Jiidicial Authority ^ 

This power of the federal judiciary to pass upon the validity 
of state and federal laws inevitably involves federal courts, espe- 
cially the Supreme Court, in pohtical matters. Almost every 
important statute is a political act by a pohtical body, usually 
by a majority composed of the members of one political party; 
and the power to declare such an act null and void is a pohtical 
power, although under our system it is exercised in the form of a 
judicial decision.^ In determining the validity of statutes, espe- 
cially federal statutes, the Supreme Court, on several momentous 
occasions, has been drawn into partisan controversies. 

The most famous of all these controversies occurred in connec- 
tion with the celebrated case of Dred Scott (1857), in which 
Chief Justice Taney, of southern origin, sought to accomplish 
the impossible feat of settling the slavery issue by obiter dicta. 
The central principle of Taney's opinion was that Congress had 
no power to prevent slavery in the territories of the United States 

^ See the Kentucky and Virginia Resolutions, McDonald, Select Docu- 
ments of United States History, 1776-1861, pp. 149 ff. 

^See Readings, pp. 140, 278. 

^ See Professor Haines's temperate review of this contentious topic, The 
Conjlict over ilie Judicial Powers (Columbia University Studies). 

* See Readings, pp. 283, 288; for Mr. Roosevelt's view, Readings, p. 286. 

The Federal Judiciary 311 

— the very question upon which the new Republican party was 
then staking its hopes and gaining its strength. 

The response which this momentous decision met was wide- 
spread and decided. The southern states accepted Chief Justice 
Taney's opinion as final. At the Democratic convention in 
Charleston, South Carolina, in April, i860, it was proposed 
that the party should "abide by the decisions of the Supreme 
Court of the United States on the questions of constitutional 

In the North, however, it met with a storm of protest. The 
legislatures of Connecticut, Maine, Ohio, New Hampshire, 
Vermont, and Massachusetts passed resolutions condemning 
the decision. 

Whereas [run the Maine resolutions], such extra-judicial opinion 
subordinates the poKtical power and interests of the American people 
to the cupidity and ambition of a few thousand slaveholders, who are 
thereby enabled to carry the odious institution of slavery wherever the 
national power extends, and predooms all territory which the United 
States may hereafter acquire by purchase or otherwise to a law of slav- 
ery as irrepealable as the organic constitution of the country; and 

Whereas, such extra-judicial opinion of a geographical majority of 
the Supreme Court is conclusive proof of the determination of the 
slaveholding states to subvert all the principles upon which the Ameri- 
can union was formed, and degrade it into an engine for the extension 
and perpetuation of the barbarous and detestable system of chattel 
slavery: Therefore — 

Resolved, that the extra-judicial opinion of the Supreme Court in 
the case of Dred Scott is not binding in law or conscience upon the gov- 
ernment or citizens of the United States and that it is of an import 
so alarming and dangerous as to demand the instant and emphatic 
reprobation of the country. 

Resolved, that the Supreme Court of the United States should, by 
peaceful and constitutional measures, be so reconstituted as to relieve 
it from the domination of a sectional faction. . . .^ 

Lincoln, who afterward sacrificed slavery and waged war to 
save the Constitution, viewed this epoch-opening decision with 
more calm, but he refused to accept it as the final word on slavery 
in the territories. Two or three months after it was rendered, 
he declared hi^ belief in, and respect for, the judicial department 

^ Senate Mis. Doc, No. 14, 35th Cong., ist Sess., 1857-58. 

312 American Government and Politics 

of the government, whose decisions should control the general 
policy of the country until reversed by some lawful process. 
"We think the Dred Scott decision is erroneous," he said to his 
neighbors at Springfield. "We know the court that made it has 
often overruled its own decisions, and we shall do what we can to 
have it overrule this. We offer no resistance to it." ^ But in the 
heat of the fray he grew less temperate in his views. A year 
later, in a speech at Edwardsville, he exclaimed: "FamiHarize 
yourselves with the chains of bondage and you prepare your own 
limbs to wear them. Accustomed to trample on the rights of 
others, you have lost the genius of your own independence and 
become the fit subjects of the first cunning tyrant who rises among 
you. And let me tell you, that all these things are prepared 
for you by the teachings of history, if the elections shall promise 
that the next Dred Scott decision and all future decisions will be 
quietly acquiesced in by the people." ^ 

Undoubtedly Lincoln accepted without reserve the declaration of 
the Repubhcan platform on wliich he was elected in i860: "That 
the new dogma that the Constitution, of its own force, carries 
slavery into any or all of the Territories of the United States, is a 
dangerous political heresy, at variance with the explicit provisions 
of that instrument itself, with contemporaneous exposition, and 
\vith legislative and judicial precedent; is revolutionary in its 
tendency and subversive of the peace and harmony of the 

In his first inaugural address, he gave a temperate and reasoned 
view of the place of the Supreme Court in our system : 

"I do not forget the position, assumed by some, that constitutional 
questions are to be decided by the Supreme Court; nor do I deny that 
such decisions must be binding, in any case, upon the parties to a suit, 
as to the object of that suit, while they are also entitled to a very high 
respect and consideration in all parallel cases by all other departments 
of the government. And while it is obviously possible that such de- 
cision may be erroneous in any given case, still the evil effect following 
it, being limited to that particular case, with the chance that it may be 
overruled and never become a precedent for other cases, can better be 
borne than could the evils of a different practice. At the same 
time the candid citizen must confess that if the policy of the govern- 

^ Nicolay and Hay, Complete Works, Vol. 11, p. 321. 
Ubid., Vol. XI, p. no. 

The Federal Judiciary 313 

ment upon vital questions affecting the whole people is to be irrevo- 
cably fixed by decisions of the Supreme Court the instant they are made, 
in ordinary litigation between parties in personal actions, the people 
have ceased to be their own rulers, having to that extent practically 
resigned their government into the hands of that eminent tribunal. 
Nor is there in this view any assault upon the court or the judges. It 
is a duty from which they may not shrink to decide cases properly 
brought before them and it is no fault of theirs if others seek to turn 
their decisions to political purposes." ^ 

It was the Democratic party that was to raise the next serious 
controversy, forty years after the Dred Scott decision. In 1895, 
the Supreme Court, by a narrow vote of five to four, declared 
unconstitutional the federal income-tax law passed by a Demo- 
cratic Congress the preceding year; and when the Democratic 
national convention assembled in 1896, there was a great deal 
of feeling among the radical elements against what they deemed 
the unwarranted act of the Court in reversing a previous opinion 
upholding a federal income-tax law.^ This feeling was intensified 
by controversies over the use of injunctions in labor disputes.^ 
Leaders in the Democratic party, like Governor Altgeld of Illi- 
nois, had protested vehemently against the income-tax decision, 
and they carried their protests to the convention. 

Accordingly Senator James K. Jones, as chairman of the com- 
mittee on resolutions, brought in a platform containing two sharp 
attacks on the federal judiciary: "Until the money question is 
settled, we are opposed to any agitation for further changes in our 
tariff laws, except such as are necessary to meet the deficit in reve- 
nue caused by the adverse decision of the Supreme Court on the 
income-tax. But for this decision by the Supreme Court, there 
would be no deficit in the revenue under the law passed by a 
Democratic Congress in strict pursuance of the uniform decisions 
of that court for nearly 100 years, that Court having in that 
decision sustained constitutional objections to its enactment 
which had pre\dously been overruled by the ablest Judges who 
have ever sat on that Bench. We declare that it is the duty of 
Congress to use all the constitutional power which remains after 

^ Works, Vol. VI, p. 179-180. 

' For an insight into the political feeling involved in this controversy, see 
Mr. Choate's celebrated argument in the Income-Tax Case, Readings, p. 283. 
^ See above, p. 305. 

314 American Government and Politics 

that decision, or which may come from its reversal by the Court 
as it may hereafter be constituted, so that the burdens of taxation 
may be equally and impartially laid, to the end that wealth may 
bear its due proportion of the expenses of the government." 
The platform furthermore declared, with special reference to 
the recent Chicago strike: "We denounce arbitrary inter- 
ference by federal authorities in local affairs as a violation of the 
Constitution of the United States and a crime against free institu- 
tions, and we especially object to government by injunction as a 
new and highly dangerous form of oppression by which federal 
Judges, in contempt of the laws of the states and rights of citizens, 
become at once legislators, judges, and executioners." 

In vain did Senator Hill of New York protest against these 
clauses, denouncing them as fooUsh, ridiculous, unnecessary, 
revolutionary, and unprecedented in the history of the party. 
Mr. Bryan, in his crown of thorns and cross of gold appeal, replied 
to Mr. Hill with vehement directness : *' They criticise us for our 
criticism of the Supreme Court of the United States. My friends, 
we have made no criticism. We have simply called attention to 
what you know. If you want criticism, read the dissenting opin- 
ions of the court. That will give you criticisms. They say we 
passed an unconstitutional law. I deny it. The income-tax 
was not unconstitutional when it was passed. It was not un- 
constitutional when it went before the Supreme Court for the first 
time. It did not become unconstitutional until one judge changed 
his mind ; and we cannot be expected to know when a judge will 
change his mind." ^ 

Some obvious lessons seem to come from a dispassionate review 
of the judicial conflicts which have occurred in our history. Criti- 
cism of the federal judiciary is not foreign to political contests ; no 
party, when it finds its fundamental interests adversely affected 
by judicial decisions, seems to hesitate to express derogatory 
opinions; the wisest of our statesmen have agreed on the im- 
possibility of keeping out of politics decisions of the Supreme 
Court which are political in their nature; finally, in spite of 
the attacks of its critics and the fears of its friends, the Supreme 
Court yet abides with us as the very strong tower defending the 
American political system.^ 

' Official Proceedings of the Democratic National Convention, 1896, pp. 190 ff. 
■'- See Readings, p. 288, and above, p. 164. 



The General Direction of Foreign A fairs 

The Constitution of the United States contains no express 
provision for a Department of Foreign Affairs, and says very little 
about the method by which our foreign relations are to be man- 
aged. However, it imphedly makes the President the official 
spokesman of the nation in such matters by giving him the power 
to appoint our representatives abroad and to negotiate treaties 
with the approval of the Senate.^ 

Not only is the President the official representative in communi- 
cating the will of the United States to other countries ; he is the 
sole official agent through whom the ministers of other countries 
can communicate with the United States. This has been the rule 
since the foundation of our government. Mr. Lee, as Attorney- 
General, pronounced the opinion, in 1797, that foreign ministers 
had no authority to communicate their sentiments to the Ameri- 
can people by pubUcations in the newspapers, for that would be 
considered contempt of this government. 

While the President of the United States is our official spokes- 
man in dealing wdth other nations, the actual conduct of foreign 
affairs is vested in the Secretary of State. The Department of 
State, of which the Secretary is the head, was organized in 1789 
by Congress.- The act provided that the Secretary of State 
should perform such duties as the President should intrust to him, 
relative to correspondences, commissions, and instructions to the 
public ministers and consuls sent out from the United States, and 
also pertaining to negotiations with the public ministers from 
foreign states or princes.^ In short, the Secretary is to conduct 
all matters respecting foreign affairs which the President may 

^Readings, p. 183. 

^ It was first called the Department of Foreign Affairs, but the name was 
shortly changed. 
^Readings, p. 291. 

3i6 American Government and Politics 

assign to his Department, and furthermore, he must manage the 
business as the President may direct/ 

The Department of State is thus the legal organ of communica- 
tion between the President and foreign countries, and is so recog- 
nized by foreign powers, for it is to the Secretary of State that 
they address their communications to our government. When 
the French minister, in 1793, directed a letter to the President of 
the United States, the Secretary replied that it was not proper 
for diplomatic representatives residing here to institute corre- 
spondence with the chief executive.^ Of course, in actual practice 
this strict official routine is not always observed; many questions 
of foreign policy are undoubtedly considered by the President in 
his informal relations with the ministers of other countries. In 
final analysis, the practice depends on the nature of the business 
and the personality of the President. 

It is through the Secretary of State, also, that the President 
transmits letters and papers to foreign governments, and the 
latter must recognize as official only those communications which 
come through this agency. No officer of the United States, civil 
or mihtary, should address a foreign government, except through 
the Department of State, or our diplomatic representatives abroad. 
Even when the President writes to a foreign ruler an autograph 
letter of condolence on the death of a relative, it is countersigned 
and transmitted by the Secretary of State. ^ 

The important business of the Department has the personal 
attention of the Secretary. International disputes, questions of 
general policy, or any matters of great weight, are considered by 
him, and he keeps in close touch with the President, discussing 
with him, and sometimes with the entire Cabinet, matters of spe- 
cial significance. 

* Readings, p. 200. 

2 The communications thus made to the Department of State are trans- 
mitted to the President whenever they are deemed of sufficient importance, 
or there are special reasons for such an action. 

^The President himself may draft a despatch to a foreign country, with 
or without the advice of his Cabinet, but the despatch is signed by the 
Secretary, so that all communications appear to be through him officially. 
Congratulatory letters which the President signs are sometimes even drafted 
by a clerk in the Department of State. 

Foreign Affairs 317 

Official Representatives of the United States in Foreign Countries 

The representatives of the United States charged with conduct- 
ing our relations with other countries fall into two general groups : 
diplomatic and consular. 

I. The first of these groups is divided into four classes: (i) am- 
bassadors extraordinary and plenipotentiary; (2) envoys extraor- 
dinary and ministers plenipotentiary and special commissioners; 
(3) ministers resident; and (4) charges d/af aires. 

This classification originated in the ceremonials of European 
courts which gave precedence in processions and social affairs to 
diplomatic representatives according to their rank. In the inter- 
national congresses of the seventeenth and eighteenth centuries, 
there was constant wrangling over the positions to be assigned to 
representatives of various countries; and it was finally decided 
by the practice of the nineteenth century that nations were equal 
when their representatives were assembled in general congress 
for negotiations; but in each country the old custom of assigning 
to diplomatic agents social and official positions in accordance 
with their rank was continued. 

For over a century the United States did not send ambassadors 
extraordinary and plenipotentiary, but was represented abroad 
only by agents falling within the second, third, and fourth classes. 
It thus came about sometimes that a minister of the United States 
was compelled, on public occasions, at receptions, and in inter- 
views with foreign officers, to step aside in favor of the representa- 
tive of some small nation, who happened to bear the title of am- 
bassador. Though all European courts did not follow this 
rigid system, American ministers were often mortified by treat- 
ment which was deemed humiliating to the spokesmen of so great 
a nation. Accordingly, in 1893, Congress pro\'ided that our rep- 
resentative to any foreign country should have the same rank 
as the representative of that country to the United States.^ There- 
fore, whenever a nation sends an ambassador to us, we return the 
honor. This means, of course, that more money must be spent in 
maintaining the higher rank, but Congress has not made a propor- 
tionate increase in salaries." 

^ Sometimes, however, we take the initiative in raising the rank by mak 
ing overtures to other countries, as in the case of Turkey. 
^ On this point, Readings ^ p. 295. 

31 8 American Government and Politics 

All diplomatic representatives of the United States are nomi- 
nated by the President and appointed by and with the advice 
and consent of the Senate. In spite of the special knowledge and 
experience which -are required of those who enter the diplomatic 
service, our representatives have been too often selected without 
regard to their qualifications. Diplomatic appointments are 
made too frequently as rewards for political service. As Secre- 
tary Hay once remarked, "A quiet legation is a stuffed mattress 
which the political acrobat wants always to see ready under him, 
in case of a slip." The term of office is uncertain and Uable to 
be brief, for, whenever a change of party occurs at Washington, 
there is a general change in our representation abroad. There 
is no arrangement for prolonged tenure of office, beginning with 
the lower grades of the diplomatic service and ending with a posi- 
tion at the foremost court of Europe.^ 

In nominating ministers, the President should always ascertain 
in advance whether any particular appointee is personally ac- 
ceptable to the government to which it is proposed to send him.^ 
After his appointment, a minister is given a formal letter of cre- 
dence, and on his arrival at his foreign post he must at once enter 
into communication with the representative of that government in 
charge of foreign affairs. It is customary for the minister's prede- 
cessor to remain until his arrival and arrange for his induction 
into office. It is also customary for the minister to be received 
in audience by the head of the government to which he is ac- 
credited ; and the ceremonials at that audience are conducted in 
accordance with the custom of the country in which it is held. 

The necessity of mastering the somewhat intricate ceremonies 
of foreign courts has been at times a source of trepidation to 
American representatives. Mr. John W. Foster relates an amus- 
ing incident of his reception at the court of Russia in the great hall 

^ President Roosevelt, however, in 1905, issued an order that the impor- 
tant office of secretary to embassies or legations should be filled by transfer 
or promotion from some branch of our foreign service, or by the appointment 
of persons whose qualifications had been determined by an examination. 
Moreover, within recent years, there has been a tendency toward the elimi- 
nation of the grosser forms of politics from diplomatic appointments. This 
service was still further advanced by an executive order of November 26, 
1909, making the examinations more difficult. 

2 For the illustrative case of Mr. Keiley, see Foster, Practice of Diplomacy^ 
p. 40. 

Foreign Affairs 319 

of the Anitchkoff Palace. He was required after the interview 
to retire backward, down the long hall, with his face fixed upon 
the Grand Ducal party and to make his farewell bow on reaching 
the door. He states that he succeeded in getting to the entrance 
without knocking over any furniture, but that his hand fell 
unfortunately upon one of the two knobs which did not open the 
door but merely turned round and round, much to his vexation and 
embarrassment. In the midst of his perplexity, the Tsaravitch, 
seeing his predicament, cried out in excellent EngHsh: "Mr, 
Foster, take the other knob!" He at once heeded this advice 
and bowed himself out of the imperial presence.^ 

A diplomatic mission abroad may be closed by one of two 
methods. A minister may exercise his constitutional right of 
resigning at pleasure, or he may be recalled by the President, 
perhaps at the request of the foreign government. In an extreme 
case, he might be summarily dismissed by the government to 
which he is accredited. 

A diplomatic representative enjoys abroad, under the riiles of 
international law, several special privileges and immunities.^ 
Any injury or affront to him is an offence against the country 
which he represents and the principle of international comity. 
The house in which he resides is under the particular protection of 
the law ; it may not be entered or disturbed by any one against his 
will. A minister is entitled to special protection while travelHng 
on land or sea. He and his official family, including even his 
domestic servants, are exempt from arrest, — in short, from all 
criminal and civil processes at all times. 

The functions of our diplomatic agents may be given in the 
language of a report made by the Department of State some 
years ago.^ According to this report the duties of ministers are 
not confined to the transmission of instructions from their govern- 
ment. Official communications, indeed, constitute a relatively 
unimportant part of the minister's business. He should cultivate 
friendly personal relations with the officers of the government to 
which he is accredited, so that on proper occasions he may have 
easy access to them and, having thus gained their confidence in 
advance, may converse freely with them; it is, therefore, neces- 

* Foster, The Practice of Diplomacy, p. 60. 

^ Moore, International Law Digest, Vol. IV, p. 622. 

i Executive Documents, No. 146, p. 17; 48tb Cong., jst Sess. 

320 American Government and Politics 

sary for the ambassador to adapt himself to the mode of life 
of the official class of the country in which he is stationed. To do 
this, he must study the sensibilities, prejudices, form of govern- 
ment, and spirit of pubhc life there. When issues arise between 
his country and the foreign government, he must endeavor to 
adjust matters as informally and genially as possible, without 
resorting to any official representations or discussions. Many 
examples might be cited of American citizens being spared serious 
inconvenience, imprisonment, or loss of property by the informal 
and confidential interposition of our ministers with official friends 
in foreign governments, whereas formal complaints made openly 
by the citizens might easily have led to tedious discussions 
and endless delays, to say nothing of the liabihty of arousing un- 
friendly feeling by public controversies. Thus, the real successes 
of diplomacy are usually not heralded far and wide, and are un- 
known save to the few immediately involved in them. As the 
report concludes, a diplomat does his duty by discharging in- 
numerable daily obligations that attract no attention; and he 
may be regarded as successful just in proportion to the constant 
tranquillity which he is able to maintain in the relations of his 
government with the foreign country. 

The Honorable Andrew D. White in his Autobiography ^ gives 
an interesting account of his life as representative at Berhn and 
incidentally affords insight into the character of the duties which 
fall upon a minister abroad. Almost every conceivable case in- 
volving the relation of Americans to the German government seems 
to have come within the range of Mr. White's experience. Hardly 
a day passed without the necessity of engaging in some kind of a 
skirmish with the German minister of foreign affairs over the 
rights of the German- Americans in the Fatherland. One Ameri- 
can, moved by patriotic impulses, denounced, in a crowded railway 
carriage, Germany, the German people, and the German Imperial 
Government; and, after passing the night in the guard-house, 
sought reUef at the hands of our minister. Another American, 
who thought that he ought to get married in Berhn as easily as in 
New York City, appealed to him for aid in getting through the 
comphcations of the German law of matrimony. Then there 
were vexatious questions with regard to the tariff. The commer- 

1 Vol. I, pp. 534-547- 

Foreign Affairs 321 

cial interests in Germany, anxious to protect themselves against 
competition, had secured very naturally some rather severe 
discriminations against American products, and the American 
manufacturers affected by these discriminations laid upon the 
ambassador the heavy duty of conducting negotiations with the 
German foreign office and members of the imperial cabinet, with a 
view to securing modifications in the German tariff. Americans 
in distress, real or imaginary, were always appeaUng to him. 
American statesmen, out of natural curiosity and with a view to 
the social advantages to be derived for themselves and their 
families, were constantly seeking introductions to high officials. 
Scholars desiring access to documents and special information of 
many kinds expected the minister to pronounce the "open 
sesame"; and American manufacturers and mei chants looked 
to him to discover for them easy methods of approach to German 
commercial men. The minister's duties went even farther. 
Any American who wanted his genealogy looked up in Germany 
felt free to call upon him for assistance; and that large class of 
persons who were constantly expecting to inherit fortunes abroad 
likewise rehed upon their minister to keep track of their interests. 

Long practice ^ seems to have estabHshed certain rules for the 
general guidance of diplomatists.^ A pubHc minister ought not 
to act as the agent for the collection of private claims; and he 
is under no obUgation to prosecute investigations for private 
persons. It is also the duty of diplomatic representatives of the 
United States scrupulously to abstain from interfering in the 
poUtical controversies of the countries to which they are ac- 
credited. It is not deemed advisable for ambassadors to make 
pubHc addresses, except on festal occasions, and even then they 
should be extremely cautious in referring to politics in any form. 
This principle was asserted by the House of Representatives, 
in 1896, in a resolution censuring Mr. Bayard, then ambassador 
to Great Britain, for a speech made in Edinburgh in which he crit- 
icised the protective tariff in the United States rather severely. 

In addition to the regular diplomatic agents, the United States 
has often employed special missions for the purpose of conducting 
negotiations with foreign countries.^ Such missions are commonly 

^ See the Rules of the Department of State. 

' Moore, International Laiv Digest, Vol . IV, pp. 565 ff. 

' Foster, The Practice of Diplomacy, chap. x. 

322 American Government and Politics 

used to manage peace negotiations — the most recent example 
being the commission, headed by President Wilson, that went 
to Paris in 19 18 to conclude with Germany and Austria the de- 
tails of the treaty which closed the Great War. Another note- 
worthy mission was that intrusted by President Fillmore to 
Commodore Perry, in 1852, authorizing him, as a special pleni- 
potentiary, to open relations with the Emperor of Japan. The 
results of this mission are too well known to need recounting here.^ 

II. The United States is also represented abroad by consuls,^ 
who are primarily our commercial agents and perform a large 
number of routine duties. Consuls of all grades,^ like ambassa- 
dors, are appointed by the President with the approval of the 

Our consuls are divided into three groups: (i) consuls-general- 
at-large — travelling representatives who inspect the consulates 
of the United States throughout the world; (2) consuls-general, 
who supervise the entire consular systems of particular countries;* 
and (3) consuls, ^ stationed at innumerable points in every civilized 
country of the globe. To these three groups may be added 
vice-consuls and consular agents who act as representatives within 
any particular consular district under the direction of the regular 

Inasmuch as the consular service is of special importance to the 
commercial and industrial interests of the country, there has been 
growing up within recent years a demand for higher standards 

^ Every American diplomatic representative abroad has a staff of assist- 
ants, varying in number according to the quantity of business of the country 
to which he is accredited. The first secretary of an embassy or legation 
should be a man of long diplomatic experience, well acquainted with the 
officials and the customs of the country in which he resides. Owing to his 
special qualifications, he assumes, as charge d'affaires ad interim, all of the 
duties of a minister in case of the absence of that official. He enjoys also 
the privileges and immunities of a diplomatic representative in international 
law. There is a tendency to attach more importance to the office of secretary 
to legations, and to make that branch of the pubUc service more attractive. 
There are usually two or three additional secretaries and a number of clerks 
and interpreters. 

^ Moore, International Law Digest, Vol. V, chap, xvi, 

^ Except vice-consuls and consular agents whose appointments are not rati- 
fied by the Senate, United States v. Eaton, 169 U, S. R., 331. 

* In some countries more than one consul-general is appointed. 

* Consuls in exterritorial countries have a peculiar position. Below, p, 325. 

Foreign Affairs 323 

of efficiency in that branch of public service. As long as the 
consular offices were regarded as the legitimate spoils of the politi- 
cian, little attention was paid to real qualifications, and the service 
was constantly disturbed by rapid changes in the personnel. 
It is clear that long experience is a most important qualification 
for a consul. He should be a thorough master of the language 
of the country in which he is stationed, and a careful student of 
the markets, the conditions of the export and import trade, and 
the opportunities for commerce in that country. Finally, inas- 
much as his varied and complicated duties must be conducted 
under an elaborate code of laws, he needs some legal training. 
It is evident, therefore, that service to a political organization in 
some inland town or congressional district does not qualify a 
man to act as the consular representative of the United States. 

On his appointment as Secretary of State, Mr. Root took im- 
mediate steps toward the reorganization of the American consular 
system,^ and, largely on his initiative, Congress passed, in 1906, 
a law entitled "An Act to provide for the Reorganization of the 
Consular Service of the United States." This law classified and 
graded the consuls in such a way as to enable the President to 
extend the merit system to that branch of the public service. 
Under this Act, the President adopted a method by which impor- 
tant vacancies are to be filled either by promotions of men whose 
abihty has been tested in the service, or by the appointment of 
candidates who have passed oral and written examinations show- 
ing their fitness for the work.- 

The specific powers and duties of consular officers ^ are found in 
the "Consular Regulations of the United States." First and 
foremost, the consular officer is a commercial representative. He 
must certify the invoices of goods intended for exportation to the 
United States; and to do this correctly he must have a wide knowl- 
edge of the character atid value of the goods produced for export 
within his particular district. He must, furthermore, be a master 
of every detail of our tariff system in order that he may cooperate 
with our customs officials at home in securing a correct valuation 

^Reinsch, Readings, p. 658. 
"^Ihid., pp. 671 and 674. 

3 Foster, The Practice of Diplomacy , pp. 222 ff.; Moore, International Laie 
Digest, Vol. V, pp. 93 flf. 

324 American Government and Politics 

of all goods and in preventing smuggling and violations of the 
customs law. 

An equally important commercial responsibility placed upon 
the consul is that of aiding in the extension and increase of Ameri- 
can trade abroad. It is his duty "to make a deep and special 
study of the industrial and mercantile conditions existing in his 
district. He must know what the country needs or would take 
in raw materials, in commodities, and in manufactured articles. 
He should learn how these needs are being supplied with particu- 
lar attention to those of them which the American producer — 
farmer, miner, manufacturer, or merchant — might supply. 
He should investigate and report as to whether the American 
import could not, by a change in form or by variation in manufac- 
ture, by a different method in packing, by a more convenient 
accommodation in payment, or in any other way be brought into 
greater demand, and American trade be thus increased. . . . 
Also in some countries government contracts are an important 
item in the competition for import orders. Therefore, it may 
be wise for us, as some European governments* have done, to 
appoint commercial attaches to some of our legations and em- 
bassies." ^ 

In connection with our shipping and seamen the consul has 
many duties. When an American vessel touches at a foreign 
port, the master must deposit his register with the consul of the 
United States, and before clearing he must secure the return of his 
papers. The consul has some jurisdiction over disputes between 
the masters, officers, and men of American vessels ; he may 
discharge seamen from their contracts ; it is his duty to hear the 
complaints of American seamen in foreign ports and also to give 
relief to the seamen of an American vessel when in distress. The 
consul is expected to make innumerable reports to the State 
Department in Washington, which are edited and transmitted to 
the Department of Commerce for publication. 

The functions of the consul are not yet exhausted. He is called 
upon to intervene with local authorities in behalf of his country- 
men whenever they get into trouble in his district. He adminis- 
ters oaths, takes depositions, authenticates public documents, 
acknowledges deeds and other instruments, acts as a witness to 

* Reinsch, Readings, p. 652. 

Foreign Affairs 325 

marriages which occur in the consulate, administers, under certain 
circumstances, the estates of citizens of the United States dying 
abroad. Consuls whose salaries are below $1000 a year may under- 
take the transaction of private business not conflicting with other 
consular duties, though in such cases they act as private persons 
and not as oflScial representatives. In some states, notably 
China, Siam, Persia, Korea, and Turkey, our consuls exercise, to 
a greater or less extent, jurisdiction over American citizens 
within their respective districts.^ 

* The Treaty-making Power 

The Constitution of the United States provides that the 
President, by and with the advice and consent of the Senate, 
two-thirds of the Senators present concurring, may make 
treaties; and that treaties so made under the authority of the 
United States shall stand with the Constitution and the acts of 
Congress as the supreme law of the land. No express limita- 
tions whatever are placed on this treaty-making power; and 
the question has been raised whether the federal government 
may make treaties with foreign countries relating to other 
than purely federal matters. 

Jefferson laid down four rules with regard to the treaty-making 
power. He said: (i) it must concern foreign nations; (2) it was 
intended to comprehend only those subjects which are usually 
regulated by treaty and cannot be otherwise regulated; (3) the 
rights reserved to the states must be excluded from the scope 
of the treaty-making power, for the President and Senate ought 
not to be allowed to do, by way of treaty, what the whole federal 
government was forbidden to do in any way; and finally (4) the 
President and Senate should not negotiate treaties on subjects of 
legislation in which participation is given by the Constitution to 
the House of Representatives. The application of the principles 
laid down by Jefferson would, of course, greatly restrict the 

1 This custom of giving consuls jurisdiction over American citizens origi- 
nated in the great differences which existed between the law and procedure 
of many non-European countries and those of the United States — differ- 
ences which made the citizens of the United States unwilling to submit to the 
jurisdiction of native tribunals. Such jurisdiction was once possessed by 
our consuls in Japan, but the law of that country took on more and more the 
form of the Western law, and our consular jurisdiction was abolished in 1899. 

326 American Government and Politics 

treaty-making power of the federal government. Nevertheless 
it wa? once said by the Supreme Court that whenever an act of 
Congress would be unconstitutional as invading the reserved 
rights of the states, a treaty to the same effect would be uncon- 

However, in practice these Hmitations are not recognized. 
Indeed, the courts have held vahd a number of treaties relative 
to matters which are ordinarily regulated by state governments. 
For example, some years ago a Russian died in Cambridge, 
Massachusetts, leaving personal property, and according to the 
law of that commonwealth the local officer undertook the settle- 
ment of the estate of the deceased. The Russian consul for the 
district, however, showed that, by a treaty between hi§ country 
and the United States, he had the right to administer the estates 
of his deceased countrymen there, and his claim was upheld.^ 

It is also maintained on good authority that the federal govern- 
ment can intervene in the administration of the criminal law of a 
state, where the treaty rights of foreigners residing in the United 
States are involved. President Harrison in a message in 1891 
said: ''It would, I believe, be entirely competent for Congress 
to make offences against the treaty rights of foreigners domiciled 
in the United States cognizable in the federal courts. This has 
not, however, been done, and the federal officers and courts have 
no power in such cases to intervene, either for the protection of a 
foreign citizen or for the punishment of his slayers." ^ Congress, 
notwithstanding the suggestion, has not yet seen fit to confer 
such jurisdiction on the courts. 

This right of the federal government to make treaties pertain- 
ing to matters which are clearly within the sphere of state legis- 
lation raises many very practical questions, and will require far 
more serious consideration as our relations with other peoples 
increase. An excellent example of the importance of this prob- 
lem is afforded by the long dispute over the exclusion of 
Japanese children from the regular public schools of San Fran- 
cisco, which, it was claimed by Japan, was a violation of treaty 
rights. Now, there is no doubt that the federal government or- 
dinarily has no power whatever to interfere with the public 

^ Prevost V. Greneaux, 19 Howard, 7. 

2 Moore, International Law Digest, Vol. V, p. 125. 

3 Messages and Papers of the Presidents, Vol. IX, p. 183. 

'Foreign Affairs 327 

schools of a state, for a state may abolish schools if it pleases, 
or prescribe such conditions as it sees fit. It was strongly urged 
by Democratic members of Congress that if the President and 
Senate could make treaties disposing of matters so distinctly 
reserved to the states, the treaty-making power was above and 
beyond the Constitution, and the rights of the states were placed 
at the disposal of the executive of the nation and the senatorial 
council. It is clearly evident that the issue raised in that con- 
troversy was of no mere temporary significance. 

Furthermore, in actual practice, matters are regulated by 
treaty which may at the same time be the subjects of legislation 
by Congress. For example, Congress has power to regulate com- 
merce with foreign nations, but the President and Senate, by vir- 
tue of their treaty-making power, may make stipulations with 
foreign countries regulating such commerce.^ 

The Negotiations of Treaties 

In the negotiation of treaties, the President may resort to 
many devices. He may go abroad and take part in negotiations 
himseh as did President Wilson when, in 191 8-19, he partici- 
pated in the formulation of the treaty that concluded the World 
War. He may commit the undertaking to the Secretary of State ; 
he may employ an ambassador, a minister, a charge d'af aires, 
or, if he likes, he may select some private person who, in his 
opinion, is peculiarly fitted for the work by his skill, or acquaint- 
ance with the language and customs of the country with which 
the negotiations are carried on. 

The extent to which the Senate under its right to advise and 
consent may participate in the actual negotiation of treaties is 
by no means settled. On the one hand, it has been maintained 
that it is the constitutional right of the President to negotiate 
treaties without any interference from the Senate, and that he 
need only submit the final document to that body for action.^ 
On the other hand, it is claimed by eminent authorities that the 
Senate may share in treaty-making at any stage, and may even 
advise the President to negotiate a particular treaty. 

Certainly the framers of the Constitution beheved that the 

^ Below, p. 392. 2 On this matter, see Readings, p. 297. 

328 American Government and Politics 

President should consult the Senate in the negotiation of treaties; 
and President Washington stated to a committee of that body- 
that in all such affairs even oral communications were necessary. 
He argued that in negotiations there are many matters that re- 
quire not only consideration, but sometimes an extended dis- 
cussion which would make written communications tedious and 
unsatisfactory. Accordingly, he visited the Senate in 1789 to 
lay before it papers relating to the negotiation of a treaty with an 
Indian tribe. He made a brief statement and then put several 
questions to the Senate, asking its advice in the form of affirma- 
tion or negation. The Senate postponed action on these ques- 
tions, but finally prepared answers to them. 

Although Washington later ceased to make personal visits to 
the Senate, he constantly consulted with that body on the nego- 
tiation of treaties, by means of written communications. For 
example, in 1790, he sent to the Senate three questions relative 
to the negotiation and terms of a certain treaty. However, he 
did not always follow this practice,^ and his successors have seen 
fit to do so only under exceptional circumstances. 

For instance, President Polk, in 1846, laid before the Senate a 
draft of a treaty presented to the Secretary of State by the Brit- 
ish envoy proposing an adjustment of the Oregon question; and 
asked the advice of the Senators as to what action, in their 
judgment, was proper to take in reference to the treaty. There 
were, of course, peculiar political reasons ^ which actuated the 
President on this occasion, but he justified his conduct by a 
reference to the practice of President Washington. This example 
was Hkewise followed occasionally by President Lincoln and 
President Grant; and in 1884 President Arthur submitted to the 
Senate a proposal from the King of the Hawaiian Islands, relat- 
ing to a reciprocity treaty, before taking the first steps in its 

In more recent times it has been the custom of the Secretary of 
State to consult influential Senators ^ with reference not only to 
treaties already negotiated, but also as to the advisability of 
opening conferences with the representatives of foreign powers 

^ For example, note the history of the Jay treaty with Great Britain. 
^ Reeves, Diplomacy of Tyler and Polk, p. 263. 

3 Especially with the members of the important Senate committee on 
foreign relations. 

Foreign Affairs 329 

on particular matters. Mr. Hay ^ frequently asked the Senators 
what they thought of various propositions, whether the subject- 
matter was a proper one for negotiation, and whether other pro- 
visions should be incorporated. Senator Bacon, in 1906, stated 
that it was his belief that Secretary Hay conferred with many 
Senators either in writing, or in person, as to the general arbitra- 
tion treaty while it was in process of negotiation. Mr. Bacon 
further said: "I recollect distinctly the Alaskan treaty. Time 
after time and time after time Mr. Hay, then Secretary of State, 
conferred vnih Senators, and, I presume, with all the Senators, 
as to the propriety of endeavoring to make that treaty and as to 
the various provisions which should be incorporated in it, recog- 
nizing the deUcacy of the situation; and the provisions of that 
treaty were well understood by members of the Senate and ap- 
proved by members of the Senate before it was ever formulated 
and submitted to Sir Michael Herbert." ^ 

Not only has the Senate thus asserted the right to participate in 
the negotiation of treaties; it sometimes seeks to initiate, by way 
of resolution, negotiations with foreign countries. Furthermore, 
a claim to the right of sharing in the initiation is sometimes made 
by the House of Representatives. For example, the Senate and 
the House once adopted a resolution requesting the President to 
open negotiations with other powers, with a view to making ar- 
bitration treaties providing for the peaceful settlement of inter- 
national disputes. The President later complied with this sug- 
gestion. Congress even went so far, in 1902, as to pass an act 
advising the President as to the terms which should be incorpo- 
rated in a treaty.^ 

When the terms of a treaty are all adjusted with the foreign 
power, the final draft is laid before the Senate, and it may be 

* Secretary of State from 1898 to 1905. 

^Congressional Record, Vol. XL, Part 3, pp. 21 29-2130. 

' Even the House of Representatives alone has gone so far as to attempt 
to participate indirectly in the negotiations of treaties. It can with perfect 
propriety request the President to submit to it papers relating to the work 
of the executive department; and in 1796 it asked the President, by resolu- 
tion, to lay before it a copy of the instructions to the minister of the United 
States who negotiated the treaty with Great Britain, together with other 
documents relating to the treaty, excepting such papers as the President 
might deem improper to disclose. Washington responded that the House 
bad no share in the treaty-making power and declined to transmit the papers. 


American Government and Politics 

approved, amended, or rejected. Like nominations to federal 
offices, treaties are acted upon in an "executive session," which is 
supposed to be secret. In practice, however, its transactions are 
invariably reported in more or less accurate detail in the press, 
and indeed sessions for the general discussion of treaties may be 
open. A treaty rejected by the Senate may be returned by 
the President to that body for reconsideration. 

When the Senate approves a treaty, it is sent to the President, 
who ordinarily completes the process by the formal exchange of 
ratifications with the representative of the foreign country. If 
he sees fit, he may refuse to take this final step, and thus prevent 
a duly signed and approved treaty from going into effect. This 
power of holding up a treaty is based on the ground that, through 
the agents of the federal government abroad, the President has 
access to sources of information closed to the Senate, and may 
discover at a late hour satisfactory reasons for not exchanging 
the ratifications. If the Senate amends a treaty, the President, 
of course, must secure the acceptance of the changes by the for- 
eign power concerned. When the treaty is at last completed, it is 
made a part of the law of the land by an official proclamation. 
It is enforced by the appropriate authorities and applied by 
the courts in concrete cases in the same way as any other law. 

World Politics 

It is an American tradition that the United States enjoys a 
splendid isolation from the rest of the powers of the world — 
especially of Europe. Accordingly, the entrance of the United 
States into "world politics" since the Spanish War is quite com- 
monly regarded as a violation of our historic policy. This tra- 
dition of isolation runs back to the beginning of our history 
as an independent nation. It was voiced by Washington in his 
Farewell Address, in which he advised his countrymen to extend 
their commercial relations, but warned them to have as little 
political connection with Europe as possible. "Europe," he 
said, "has a set of primary interests which to us have none, or a 
very remote relation. Hence she must be engaged in frequent 
controversies, the causes of which are essentially foreign to our 
concerns. Hence it would be unwise in us to implicate ourselves 
by artificial ties in the ordinary vicissitudes of her politics, or the 
ordinary combinations and collisions of her friendships or en- 

Foreign Affairs 331 

mities. ... It is our true policy to steer clear of perrtianent 
alliances with any portion of the foreign world." 

The very commercial interests, however, which Washington 
urged his countrymen to develop in the world's markets have 
been, from the beginning, drawing us more and more into 
the current of world poHtics; and at no time has the United 
States refused to defend American commercial enterprise in any 
part of the globe. When the Pasha of TripoU, discontented 
with the tribute paid him, chopped down the American flag, 
President Jefferson immediately ordered a fleet to the Medi- 
terranean. Commodore Preble, who was sent over in 1803, 
bombarded the city of TripoH and forced the Pasha to come to 
terms. Again, in 181 2, the Dey of Algiers grew restive on hearing 
of the war between the United States and Great Britain, com- 
plained of the small amount of tribute w^hich he received, and 
expelled the American consul-general and American citizens 
from his territory. At the close of the war, Congress passed an 
act for the protection of American commerce against Algerian 
cruisers; Bainb ridge and Decatur, with two squadrons, were 
speedily despatched to the Mediterranean, and in a short time 
the Dey of Algiers came to terms, agreeing not to levy any more 
tribute on the United States. Thus by our vigorous action we 
helped to rid the Mediterranean of the Barbary freebooters. 

Again, in 1843, immediately after Great Britain had battered 
down the Chinese wall of exclusion, the federal government sent 
Caleb Gushing to China to obtain for the United States those 
commercial privileges which had been so recently extended to 
the British. It was due to the initiative of the United States 
that Japan was opened to Western trade. In 1853 Commodore 
Matthew C. Perry, in command of a squadron of four vessels, and 
bearing a special mission from the United States, demanded as 
a right, not as a favor, "those acts of courtesy which are due 
from one civihzed nation to another"; and by a firm policy 
brought the Japanese imperial government to terms in the treaty 
of March 31, 1854. 

Many examples might be given illustrating the forceful manner 
in which the government has protected American commercial 
interests in the four corners of the world; but it is sufficient to 
say that we have been a world power, as far as has been neces- 
sary, from the beginning of our history. In a word, the protection 

332 American Government and Politics 

of our government has steadily advanced with the extension of 
our material interests, and the foreign policy of the last ten years 
is no breach in our historical development. 

In a way, of course, this is not a violation of the principles 
laid down by Washington in his Farewell Address, for it was 
against entangling alliances — not commercial relations — that 
he warned us. The protection of those very commercial inter- 
ests, however, has drawn us into intimate connections with other 
foreign powers, and may at any time lead to the necessity of 
cooperating with them in military expeditions. Por example, 
American troops were found alongside those of Russia, Germany, 
Japan, Britain, and the other powers in the recapture of Peking 
and the reestabhshment of foreign rights in Chinese territory 
after the disorders of 1900. A near approach to a formal alliance 
in the protection of American interests was made in November, 
1908, when Ambassador Takahira of Japan, and Secretary Root 
for the United States, by an exchange of formal notes, announced 
their agreement on the following principles : the two countries 
are to develop their commerce on the Pacific Ocean freely and 
peacefully ; they have no aggressive intentions, but wish to main- 
tain the status quo in that region and the open door in China ; they 
are firmly resolved to respect each other's territories ; they are 
determined to preserve the independence and integrity of China 
and the principle of equal opportunity for all countries to carry 
on trade and commerce there ; and, in case of any event disturb- 
ing the above principles, the two governments will confer on the 
most useful measures to be taken. 

The menace to American interests threatened by the terrible 
military power of the German Imperial Government and the 
depredations committed by the German submarines inevitably 
drew the United States into the sphere of the great European 
conflict that opened in 19 14. Isolation, never complete, now 
became more impossible than ever. 

The United States, furthermore, participates from time to time 
in the assemblies and councils of foreign nations. American 
representatives were sent to Berlin, in 1884, where a European 
Congress was held for the purpose of adjusting territorial ques- 
tions in Africa and deciding the fate of the Congo Free State. 
Again, in 1906, American representatives were sent to the con- 
ference at Algeciras in Spain, where certain conflicts among 

Foreign Affairs ;^;^^ 

European powers over their respective interests in Morocco were 
adjusted. The United States also took a very prominent part in 
the Hague conferences of 1899 and 1907 ; President Wilson was 
the first statesman of high authority to propose a League of 
Nations to prevent wars. It was mainly as a result of his labors 
that the League of Nations Covenant was included in the treaty 
of Paris in 1919. It is apparent that the ''splendid isolation" 
of the United States has never been possible in practice. More- 
over, no political doctrines with regard to our independence from 
the rest of the world are strong enough to overcome forces which 
are linking our destinies to those of the world at large. 

The Monroe Doctrine 

No description of the foreign policy of the United States is 
complete which does not take into account the Monroe Doctrine 
as applied to the Latin-American countries in their several rela- 
tions with the European powers. It would be misleading, however, 
to attempt a definition of the Monroe Doctrine in the abstract; 
for it was enunciated under pecuHar historical circumstances 
and has taken various forms from time to time. 

It originated during the first quarter of the nineteenth century, 
partially as the result of the fear of European despotism enter- 
tained in the United States, but more especially as the result of an 
attempt to secure for American traders and merchants a large 
share of the economic advantages to be derived from the inde- 
pendence of the former Spanish colonies. Spain had system- 
atically endeavored to monopolize the trade of her American 
possessions; and thus the United States and England — the two 
great trading nations especially anxious to develop their interests 
in Latin- America — were legally excluded from a rich field of 
enterprise.^ When Napoleon placed his brother Joseph upon 
the throne of Spain, in 1808, the Spanish-American colonies re- 
sisted the rule of the new monarch and began to taste the sweets 
of commercial freedom before their long struggle for indepen- 
dence was brought to a successful conclusion. American and 
English merchants were quick to seize the opportunity of open- 
ing up profitable trade relations with these new states which, after 

^ Smuggling had been going on, however, for more than two centuries in 
spite of Spain's protests. 

334 American Government and Politics 

three centuries of subjection to Spanish monopoly, were only too 
eager to seize the occasion to buy freely in the cheapest market 
and sell in the dearest. 

Spain, however, was loath to surrender these colonies and 
the lucrative business with them; but when, in 1820, she 
was preparing an expedition to suppress the war for indepen- 
dence in America, a serious revolution broke out within her 
own borders and quickly spread over into Italy. It looked for 
a time as if the whole settlement, which had been reached by the 
powers at Vienna in 181 5 after the downfall of Napoleon, would 
be undone by revolutionary violence. Anticipating such a 
danger, Austria, Prussia, England, and Russia had formed an 
aUiance in 181 5 for the express purpose of maintaining the re- 
stored Bourbon king in France and preventing a renewed disturb- 
ance of the peace of Europe, In order to effect their ends, these 
powers agreed to hold periodical meetings for the purpose of 
reviewing their interests and taking such measures as should be 
deemed necessary for the preservation of pubHc order. 

Shortly before this agreement was reached, the monarchs of 
Austria, Prussia, and Russia, on the suggestion of the Tsar 
Alexander I, had formed a sort of a pious alliance, according to 
which the three rulers were to \'iew one another as brothers and 
"delegates of Providence to govern three branches of the same 
family," and to base their poHcies "upon the sublime truths 
which are taught by the eternal religion of God our Saviour." ^ 
This agreement was known as "The Holy AlUance" — a term 
which was afterwards quite indiscriminately applied to the com- 
bined powers of Europe in their efforts to maintain the settlement 
of Vienna. 

As soon as the revolution of 1820 broke out in Spain, Metter- 
nich, the astute Austrian diplomat, invited Russia, Prussia, 
France, and England to unite in suppressing the development of 
"revolt and crime." In 1822, the representatives of these powers 
met at Verona to discuss their common interests and decide 
what should be done with Spain. At this Congress all of the 
powers, except England, were anxious to devise a plan by which 

* For this remarkable document, see Robinson and Beard, Readings in 
Modern European History, Vol. I, p. 384.: and for a more extended account of 
the European situation, see Robinson and Beard, Development of Modern 
Europe, Vol. I, p. 357. 

Foreign Affairs 335 

they might aid Spain in reconquering her rebellious colonies, 
although as a matter of fact they were really in no position 
to afford the necessary miHtary support. England, however, 
refused to cooperate, partially because of the more liberal spirit 
prevaiUng among her people, but more especially because her 
economic interests were certainly on the side of the revolutionary 
Spanish colonists with whom she had developed a lucrative trade. 

The United States occupied about the same economic position; 
and, in view of what seemed a serious intervention in American 
affairs by the great despotic European powers. President Monroe, 
in his message to Congress of December, 1823, called attention to 
the impending dangers, and added: " We owe it therefore to candor 
and to the amicable relations existing between the United States 
and these powers to declare that we should consider any attempt 
on their part to extend their system to any portion of this hemi- 
sphere as dangerous to our peace and safety. With the existing 
colonies or dependencies of any European power we have not 
interfered and shall not interfere. But with the governments who 
have declared their independence and maintained it, and whose 
independence we have on great consideration and on just prin- 
ciples acknowledged, we could not view any interposition for the 
purpose of oppressing them or controlUng in any other manner 
their destiny by any European power in any other light than a 
manifestation of an unfriendly disposition toward the United 
States." In the same message in which this doctrine was an- 
nounced there was another significant declaration, called forth by 
a decree of 182 1 issued by the Tsar of Russia, claiming the north- 
west shore of North America down to the 51st parallel. With 
regard to this claim President Monroe declared, '' that the Ameri- 
can continents, by the free and independent condition which they 
have assumed and maintain, are henceforth not to be considered 
as subjects for future colonization by any European powers." 

In the course of time the principles announced in this famous 
message came to mean, practically, that the United States, while 
respecting the existing rights of European nations in this hemi- 
sphere, would oppose any intervention interfering ^\ith the free- 
dom of self-government in any territory whose inhabitants had 
cast off European rule. When a dispute arose between Great 
Britain and Venezuela over the boundaries of their respective 
territories, Mr. Olney, then Secretary of State under Mr. Cleve- 

336 American Government and Politics 

land, declared (in 1895) that, while the United States did not 
intend to help relieve any Latin- American state from its obliga- 
tions under international law, and did not intend to prevent any 
European government, directly interested, from enforcing such 
obligations or inflicting punishment for a breach of them, it 
would not permit any European country or combination of 
countries to "forcibly deprive an American state of the right and 
power of self-government and of shaping for itself its own poUtical 
fortunes and destinies." The strong stand taken by President 
Cleveland in this interpretation of the Monroe Doctrine kindled 
the war spirit; but fortunately the dispute was peaceably settled 
by arbitration. Again, in 1901, when Germany was about to 
bring force to bear upon Venezuela for the satisfaction of claims, 
President Roosevelt declared: ."the Monroe Doctrine is a dec- 
laration that there must be no territorial aggrandizement by any 
non-American power at the expense of any American power on 
American soil. . . . We do not guarantee any state against 
punishment, if it misconducts itself, provided that punishment 
does not take the form of the aquisition of territory by any non- 
American power." 

Alongside this interpretation of the Monroe Doctrine as "the 
principle of the limitation of European power and influence in 
the western hemisphere" ^ has come a correlative doctrine that 
the United States must accept, to some degree, responsibility for 
the conduct of the Latin-American countries which are to be 
defended against European aggrandizement. This correlative 
principle President Roosevelt announced in 1904: " If a nation 
shows that it knows how to act with decency in industrial and 
poUtical matters, if it keeps order and pays its obligations, then 
it need fear no interference from the United States. Brutal 
wrong-doing or impotence which results in the general loosening 
of the ties of civilized society may finally require intervention 
by some civilized nation, and in the western hemisphere the 
United States cannot ignore its duty." ^ This same view was 
taken by President Taft in his message of 1909: "With the 
changed circumstances of the United States and the repubUcs to 
the south of us, most of which have great natural resources, 

'J. B. Moore, American Diplomacy, p. 162. 

^ Moore, op. cit., p. 165. See above, p. 197, for the Santo Domingo aflfail 
illustrating this point. 

Foreign Affairs 337 

stable government, and progressive ideals, the apprehension which 
gave rise to the Monroe Doctrine may be said to have nearly- 
disappeared, and neither the doctrine as it exists nor any other 
doctrine of American pohcy should be permitted to operate for 
the perpetuation of irresponsible government, the escape of just 
obUgations or the insidious allegation of dominating ambitions 
on the part of the United States." 

International Law and Peace^ 

In common with the other civiHzed nations the United States 
recognizes international law as a part of its law. International 
law is a vast complex of rules and regulations governing the rela- 
tions of nations in time of peace and in time of war — rules which 
are to be found in treaties and agreements, the statutes of various 
countries, the doctrines laid down by high judicial tribunals, in the 
principles enunciated by authoritative writers, and finally in the 
recognized practices of nations. 

It is a mistake to regard international law as merely a body of 
amiable theories that may be broken at will by any nation. It 
is true that there is no world executive authority or judicial 
tribunal to enforce the practices of international law by punishing 
offending nations; and this has led many legists to deny even the 
name of "law" to the rules governing the intercourse of nations, 
on the ground that they have no sanction beyond the mere volun- 
tary approval of individual nations. This view overlooks the 
fact that there are other sanctions than those of mere material 
force and that the very interests and necessities of each nation 
compel it to observe certain well-defined rules in the conduct of 
its business with other countries. The domestic law of every 
nation is constantly being violated, notwithstanding the sanction 
of force upon which it rests. For instance, American citizens 
often violate with impunity the customs laws in spite of the pen- 
alties which may be imposed for the offence; but the United States 
would not think of seizing arbitrarily a British merchant vessel 

^It is too early to estimate the effect of the World War (1914-18) and 
the League of Nations upon international law. Efforts to place inter- 
national intercourse upon a legal foundation certainly have not in any 
way diminished; but many of the old rules of war and peace are certainly 

^^^ American Government and Politics 

in the harbor of New York and thus run the risk not only of 
serious commercial loss, but also of a costly war. 

It is impossible, of course, in a treatise of this character to go 
into the content of international law at any length, but some 
notion of the principles which it embodies seems necessary to 
give definiteness and reahty to the statement that international 
law is not a collection of theories and moral principles, but a 
substantial body of rules and regulations appUcable to the con- 
duct of intercourse between states. In international law we 
find laid down the principles defining what may be regarded as 
an independent state (which is the "person" or "subject" of 
international law); the fundamental rights and duties of states; 
the methods by which new states come into existence and are 
recognized; the character of the property of a state; methods of 
acquiring property; the territorial waters of a state; the privi- 
leges and immunities of diplomatic agents; the jurisdiction of a 
state over aliens within its borders; piracy; grounds and condi- 
tions upon which one state may interfere in the affairs of other 
states; principles of expatriation and naturalization; the mak- 
ing and abrogating of treaties; arbitration, mediation, and acts 
mitigating the rigors of war. These matters are treated under 
that branch of international law known as the law of peace. 

Even the practices of war are regulated by well-accepted 
rules. The law of war, for example, governs such topics as the 
declaration of war, non-combatants, privateering, the prisoners 
of war and their treatment, the instruments of war and bom- 
bardment of towns, and the use of explosives; the effect of war 
upon the property of belligerent states, their subjects and the 
subjects of neutral states; the effect of miUtary occupation upon 
property on land; the rights and duties of neutrals; contraband 
of war; blockade; right of search; and prize courts. 

On all of these topics of international law definite information 
is to be secured from decisions of courts, treaties, statutes, 
official documents, and authoritative writers; and while a 
variety of opinions may be entertained by the legists of different 
nations, it must be remembered that lawyers and courts are by 
no means always agreed as to what the domestic law is on any 
particular point.^ 

^ The student will do well to refer at this point to the monumental collec- 
tion of material on international law prepared by Professor J. B. Moore, 

Foreign Affairs 339 

Strictly speaking, international law is not a body of world- 
law, but a body of rules wliich is recognized by each ci\"ilized 
power as a part of its domestic law. ''International law," 
said Mr. Justice Gray of the Supreme Court of the United States, 
in an opinion,^ "is part of our law,^ and must be ascertained and 
administered by the courts of justice of appropriate jurisdiction 
as often as questions of right depending upon it are duly pre- 
sented for their determination. For this purpose, where there 
is no treaty and no controlling executive or legislative act or 
judicial decision, resort must be had to the customs and usages 
of civilized nations; and as an e\idence of these to the works of 
jurists and commentators who by years of labor, research, and 
experience have made themselves peculiarly well acquainted 
with the subjects of which they treat. Such works are resorted 
to by judicial tribunals, not for the speculations of their authors 
concerning what the law ought to be, but for trustworthy evidence 
of what the law really is." 

An international tribunal independent of the governments of 
particular states, enforcing principles of international law, and 
adjudicating disputes between different nations, was long a 
dream of those working for the establishment of world peace. 
Moreover, on many important occasions during the nine- 
teenth century, the United States resorted to the practice of 
arbitration for the purpose of adjusting controversies with foreign 
countries. The first treaty signed with Great Britain in 1794 
after the conclusion of peace provided for three tribunals or 
commissions to arbitrate certain questions which threatened to 
bring on a new conflict between the two countries; and many 
irritating controversies over the boundaries between the United 
States and Canada and the fishing rights of the respective coun- 
tries have been adjusted by way of arbitration. The success 
which accompanied the settlement of controversies with 
Canada was decidedly encouraging to the friends of arbitration. 

International Law Digest (8 vols., Government Printing Office). Even 
though making no attempt to go into the technicalities of these subjects, the 
teacher should impress upon the student the notion that international law 
is not merely a body of theories elaborated by the enthusiasts for interna- 
tional peace. 

1 175 U. S. R., 677. 

2 The Constitution recognizes the law of nations by authorizing Congress 
to define offences against it. 

J40 American Government and Politics 

The most famous case of arbitration in American history was 
that of "the Alabama Claims," which grew out of depredations 
committed upon American merchant vessels during the Civil 
War by ships which Great Britain allowed to be constructed 
in British ports which were used as a base of operations for the 
Confederate government. After a good deal of angry dispute, 
the two countries agreed by a treaty of 187 1 to submit the whole 
matter to a tribunal composed of one citizen of the United States, 
one British subject, and three other members, named by the King 
of Italy, the President of Switzerland, and the Emperor of Brazil, 
respectively. This tribunal met in Geneva, and after prolonged 
sessions it came to the conclusion that with regard to certain 
vessels the British government had violated or neglected its duties 
as a neutral power; and an award of damages aggregating 
$15,500,000 was rendered in favor of the United States, and 
paid, in spite of the protest of the British member of the tribunal, 
and some feeling of resentment in Great Britain.* 

The United States, therefore, had had a long experience in the 
peaceful adjustment of controversies, when it was invited, in 
1898, in common with the other powers of the world, by the Tsar 
Nicholas II, of Russia, to participate in a conference at the 
Hague for the purpose of discussing the subject of reducing 
excessive armaments. The first Hague conference, which met 
in 1899, was unable to come to an agreement on the main ques- 
tion, and merely recommended the nations to examine the possi- 
bility of limiting armed forces by land and sea. The powers 
however, agreed to recognize the right of any nation, without 
prejudice, to offer its services to countries at war with one an- 
other, as an aid in friendly mediation. The first conference, fur- 
thermore, recommended parties unable to come to an agreement 
by negotiation to submit matters not involving national 
honor or vital interests to an investigation by an impartial com- 

^ In addition to resorting to arbitration in a large number of cases, the 
government of the United States has been instrumental in preventing war, 
and in restoring peace, by offering to countries on the eve of war or aheady 
at war its services in settling the dispute or in terminating the armed con- 
flict. For example, in 187 1, it tendered its good offices in a war between 
Spain and certain South American repubhcs, and secured an agreement to 
an armistice which eventually resulted in a treaty of peace. In 1905 Presi- 
dent Roosevelt was instrumental in bringing the Russo-Japanese war to a 

Foreign Affairs 341 

mission of inquiry, to be instituted by an arrangement between 
the parties to the controversy. Finally, the conference agreed 
upon the establishment of a permanent court of arbitration to 
consist of not more than four persons from each country, se- 
lected by the respective nations from among their citizens, "of 
recognized competence in international law, enjoying the highest 
moral reputation." Whenever two powers are in a controversy, 
they may submit the issue to a tribunal selected from this long 
list of eminent jurists. 

The results of the first Hague conference led President Roose- 
velt, in 1904, to propose a second meeting of the powers ; but he 
yielded the honor of issuing the call to Nicholas II. The con- 
ference (1907) could not agree upon any plan for reducing mili- 
tary and naval expenditures or establishing general compulsory 
arbitration. It devoted itself largely to the regulation of the 
actual conduct of war, the treatment of prisoners, the bombard- 
ment of towns, the rights of neutrals, etc. 

Among the objects of the United States in entering the war 
against Germany, President Wilson placed the establishment of 
"a secure and lasting peace." The means designed to accom- 
plish this result he declared to be "a. League of Nations formed 
under covenants that will be efficacious." In the treaty signed 
at Versailles on June 28, 1919, there was included as Part I "the 
Covenant of the League of Nations." This section provided that 
the League should consist of : (i) the powers arrayed against 
Germany, (2) the powers that had been neutral, if they saw 
fit to join, (3) and any other fully self-governing state, 
dominion, or colony on approval of a two- thirds vote in the 

The organs of government set up by the covenant were : (i) a 
council consisting of the representatives of the principal Allied 
and Associated Powers, together with four other members se- 
lected by the Assembly, and (2) the Assembly to consist of 
representatives of all the nations that are actually members of 
the League. The seat of government was fixed at Geneva. 
Any war or threat of war was declared to be a concern of the 
whole League and provisions were made for submitting disputes 
to the League for settlement. The United States Senate 
rejected the treaty and attempts made to reach a compromise 
were without avail. 



Land Forces. Historically speaking, the United States has 
reUed upon four main forces for mihtary purposes : 

1. The army of the United States, commonly known as the 
regular or standing army, organized under acts of Congress, 
composed of a small body of men, numbering less than 100,000 
in 1914. This branch of service is recruited by volunteers for a 
term of years. The maximum number of men and officers, the 
term of service, the ranks and grades, the strength of the regi- 
ments and other divisions are determined by law. For the pur- 
poses of defence, the army is distributed among several depart- 
ments and divisions into which the territory of the United States 
is divided. On April i, 191 7, the total number of men in the 
army of the United States was 190,000. 

2. Special volunteers, men who enter the military service of 
the United States for specified terms and services. For example, 
on April 15, 1861, Lincoln called upon the governors of the states 
for seventy-five thousand volunteers from the ranks of the militia 
to serve for three months in enforcing federal law against com- 
binations too powerful to be overcome by judicial process or the 
powers vested in federal marshals. 

3. The militia or national guard, consisting in each state of 
a small number of men who volunteer and give a small amount 
of time to training and preparation. This third branch of de- 
fence is established under acts of Congress under the provisions 
of the Constitution, which authorize it to organize, arm, and 
discipline the miHtia, govern such parts of it as may be employed 
in the federal service, and call it into the service to execute the 
laws of the union, suppress insurrections, and repel invasions. 
Under this power Congress passed in 1903 and 1908 two acts 
designed to bring all able-bodied men into the service of their 
country and to make the organized militia of the several states 


National Defence 343 

and territories and the District of Columbia more immediately 
serviceable in time of need. Under these laws all able-bodied 
male citizens of the country between the ages of eighteen and 
forty -five were declared to be members of the militia and divided 
into two classes : (i) the organized militia, known as the national 
guard, and (2) the reserve militia composed of those who had 
not actually entered the militia service as volunteers. Additional 
provisions were embodied in the National Defence Act of 1916. 

The miUtia force is always at the disposal of the federal govern- 
ment in case of invasion, war with a foreign nation, or rebelHon 
against the authority of the United States. Whenever the Presi- 
dent is unable, with the regular force at his command, to execute 
the laws of the Union, he may call out such number of the militia 
of any state or territory or the District of Columbia as he may 
deem necessary to meet the situation. He does this under au- 
thority of an act of Congress. 

4. Drafted men. For example, on March 3, 1863, Congress 
enacted the Civil War draft la.w enrolling in the national forces 
all able-bodied male citizens, and persons of foreign birth who 
had declared their intention of becoming citizens, between the 
ages of twenty and forty-five, from among whom were selected 
by lot certain quotas for military service. Persons who found 
a substitute or paid $300 into the War Office were exempted 
from liability. In the war on the Central Empires (1917-18) 
the principle of the selective draft was again applied in a new 

The Navy. Under the Constitution Congress has full power 
to provide and maintain a navy. Previous to the War with 
Spain in 1898, the navy did not enlist as much pubHc interest 
as the army. During the War of 181 2 American sailors gave a 
good account of themselves in many famous sea fights, but the 
Mexican and Civil wars were mainly land wars, although it 
must not be forgotten that it was the blockade of southern ports 
as well as the battles of the Grand Army of the Republic that 
at last brought defeat to the Southern Confederacy. Inasmuch 
as nearly all of our territory was compact and on the North 
American continent, it was thought that good coast defences and 
a few battleships would suffice. The acquisition of the Philip- 
pines and Porto Rico, however, changed all that and made it 
clear that in case of a war with a European or Asiatic power it 

344 American Government and Politics 

would be necessary to have a large navy to defend distant pos- 
sessions. After the Spanish War American naval appropria- 
tions began to increase rapidly. By 191 2 the United States 
stood next to Great Britain in the amount spent for defence upon 
the seas. The destruction of Germany's navy in the Great War 
left the United States the second great naval power of the world. 

The Great War and the Revolution in National Defense 

The titanic conflict which broke out in Europe in 1914 gave 
an entirely new aspect to war and national defence. In previous 
wars, the armies in the field and the number of civilians employed 
in making munitions and supplies for them included only a part 
— usually a small part — of the total populations concerned. 
In the World War whole nations were involved. It was esti- 
mated that from three to twenty adults were required to keep a 
single man on the firing line. If we take the most conservative 
figure and recall that the grand total of men in the United States 
army (including the marines) at the time of greatest strength, 
November 11, 191 8, the day of the armistice, was 3,703,273, we 
see what a modern war involves in terms of civilian strength to 
support it. Modern war means practically the whole nation in 
arms or at work in support of the armed forces on land and sea. 
As President Wilson said : " In the sense in which we have been 
wont to think of armies there are no armies in this struggle. 
There are entire nations armed. ... It is not an army that 
we must shape and train for war; it is a nation." American 
national defence can best be understood therefore in terms of the 
principal pieces of legislation enacted and the measures taken 
to win the war against Germany. They were as follows : 

I. The Selective Draft Laws. By an act approved on May 8, 
191 7, it was provided that the great national army should be 
impartially chosen from among males between the ages of 2 1 and 
31 inclusive. The President was authorized to apply as neces- 
sary the terms of the selective draft, based on the liability of all 
male citizens and male persons (not alien enemies) , who had de- 
clared their intention to become citizens, between the ages indi- 
cated. Quotas for the several states were to be determined ac- 
cording to population. Federal and state officers, ministers, 
and a few others were exempted. All persons liable to service 

National Defence 345 

were registered and from them were selected as needed the men 
for the army. In August, 1918, Congress by law extended the 
term of years to include men between 18 and 45. The new regis- 
tration was made on September 12, 1918, and similar principles 
of selection were applied. 

2. The Insurance Act. By a law enacted October 6, 191 7, 
Congress made large appropriations for : (i) military and naval 
allowances to be paid under appropriate regulations to the fam- 
ilies of soldiers and sailors and those relying in whole or in part 
upon their earnings, (2) compensation for enhsted men or their 
families in case of death or disability, and (3) a relatively inex- 
pensive system of insurance for the benefit of soldiers and sailors, 
such insurance payments to be in addition, of course, to the 
regular allowances made by the government. 

3. Liberty Loan Laws. During the course of the war the 
government floated four great national loans. The first loan 
under the law of April 24, 191 7, had 4,500,000 subscribers and 
the fourth loan in October, 19 18, over 20,000,000 subscribers. 
The popularity of the loans was enhanced by the issuance of 
bonds of denominations as small as $50. In order that smaller 
amounts might be subscribed War Savings Stamps were devised. 

4. Measures of Taxation. After the declaration of war, the 
cry was raised that ''wealth as well as men should be conscripted," 
and in some quarters it was urged that the entire cost of war 
should be laid upon large fortunes and incomes. Congress 
adopted a middle course and provided enormous revenues from : 
(i) progressive income taxes, (2) progressive inheritance taxes, 
and (3) excess profits taxes upon all incorporations and partner- 
ships. *' This," says Professor Seligman, '' is the high-water mark 
thus far reached in the history of taxation. Never before in the 
annals of civilization has an attempt been made to take as much 
as two thirds of a man's income by taxation." 

5. National Food and Fuel Control Law, August 10, 191 7. 
Among other things this law forbade : (i) wilful destroying of 
the necessaries of life for the purpose of enhancing prices; 
(2) restricting supplies or knowingly committing waste; (3) at- 
tempting to monopolize supplies or to limit the facilities for pro- 
ducing or transporting supplies ; (4) limiting the manufacture of 
necessities in order to exact excessive prices. The President was 
authorized: (i) to requisition food and other supplies for the 

34^ American Government and Politics 

support of the army and navy; (2) to prescribe regulations 
governing marketing ; (3) to fix the price of wheat ; (4) to take 
over and operate if necessary, factories, mines, packing houses, 
and other plants ; (5) to fix the prices of suppHes requisitioned 
for military purposes ; and (6) to control the prices of supplies 
of coal and cok6. In order to make possible further control the 
President was empowered to license the importation, manufac- 
ture, storage, mining, or distribution of any necessaries with a 
view to -bringing all such operations under federal scrutiny. 

6. The Railways and Means of Communication. By a proc- 
lamation of December 28, 191 7, the President placed the rail- 
ways under government control and operation, and the Secretary 
of the Treasury was made director-general. In March, 191 8, 
Congress passed the railroad control bill, providing the terms 
and conditions under which the government was to operate the 
railroads for the period of the war and not to exceed twenty-one 
months after the proclamation of peace. In the summer of the 
same year, the express, telephone, and telegraph systems were 
taken over by the government. Coastwise and high-seas ship- 
ping was likewise placed entirely at the disposition of the govern- 
ment, and an Emergency Fleet Corporation was created to 
mobilize the resources of the country to build ships. 

7. The Espionage and Sedition Acts. An espionage law, 
approved June 15, 191 7, provided heavy penalties for : (i) those 
who attempted to communicate to any foreign nation any in- 
formation to the injury of the United States ; (2) those who wil- 
fully made or conveyed false statements with the intent to inter- 
fere with the operations of American forces or promote the suc- 
cess of the enemies of the United States ; (3) those who wilfully 
attempted to cause disloyalty, insubordination, mutiny, or 
refusal of duty among the military and naval forces of the United 
States. The Sedition Act, as an amendment to the Espionage 
Act approved May 16, 1918, imposed a heavy fine or imprison- 
ment upon persons "who use abusive language about the Gov- 
ernment or institutions of the country, who advocate or incite 
any curtailment in the production of war materials, and who 
by word or act favor the cause of an enemy country." The 
Postmaster-General was empowered to close the mails to any 
one who in his belief was using the postal service in violation 
of the Sedition Act. The Sabotage Act of April 20, 19 18, laid 

National Defence 347 

penalties upon those who wilfully destroyed war materials or 
interfered with the production of war materials. 

In pursuance to legislation which we have just reviewed the 
following important agencies were created to carry on the ad- 
ministration of the functions necessary to keep the country on 
a war footing and to support adequately our land and naval forces. 

The War Industries Board. — This board was created in July, 191 7. 
It was really a planning and controlling board for industries, empowered 
to bring all of them under government control, to speed up the produc- 
tion of necessary materials, to distribute the demands for supplies from 
all the war divisions to the industries best fitted to meet them expedi- 
tiously, and to coordinate the work of all to prevent dupHcation, waste 
and delay. It was the great centralizing and cooperating agency 
standing between the government and industries, controlling the latter 
and organizing them to serve the military needs of the former. 

The Priorities Board or Division, in the War Industries Board, charged 
with the duty of guiding industries and governmental agencies in "the 
production, supply, and distribution of raw materials, finished products, 
electrical energy, fuel, and transportation," and of laying down rules 
for giving priority or preference to those materials and activities neces- 
sary to meet the war needs of the government in the order of their 

United States Railway Administration, under the direction of the 
Secretary of the Treasury. Supplemented by an Advisory Board. In 
charge of the administration of the railways taken over by the federal 

The Emergency Fleet Corporation. — Created for the purpose of 
drawing together and securing the cooperation of all the shipbuilding 
interests in the country and creating new shipbuilding forces with a 
view to the immediate enlargement of the fighting forces on the sea 
and merchant marine of the United States. The ravages of the sab- 
marine and the necessity for an immense tonnage to transport soldiers 
and then supply them with materials led the government to develop 
this special agency, which was in effect an extension of the National 
Shipping Board established before the entrance of the United States 
into the war. 

The Food Administration, created to enforce the provisions of the 
law of August 10, 191 7, and additional rules laid down from time to 
time in furtherance of the principles therein contained. Federal food 
administrators were also established in every state. 

The Fuel Administration, created to enforce the fuel provisions of 
the law of August 10, 191 7, and rules and regulations relative to the 

34^ American Government and Politics 

mining, distribution, and price of coal, for war, industrial, and ordi- 
nary purposes. 

The Aircraft Board, independent organization, supervised (in accord- 
ance with requirements of the respective departments) the purchase, 
production, and manufacture of aircraft and aircraft materials. 

National Advisory Committee for Aeronautics, created under act of 
Congress of March 3, 191 5, to direct experimentation and research 
into the problems of flight and their solution. 

The War Labor Board was created in April, 191 8, for the purpose of 
adjusting, by mediation and conciliation, disputes arising between em- 
ployers and employees in war industries. "In case of an industrial 
dispute, a local committee or board is first appointed to arbitrate it ; 
failing settlement by the local board, parties to the controversy are 
summoned before the National Board itself ; if the Board members are 
then unable to agree upon a decision, an umpire is appointed, either 
unanimously by the Board, or, if the members disagree, then by lot 
from a list of ten persons nominated for the purpose by the President 
of the United States. Beyond the decision of this umpire no compul- 
sion is incorporated in the original statement of the Board's powers. 
The President has, however, commandeered factories of recalcitrant 
employers, and threatened with exclusion from industry and with- 
drawal of immunity from the draft striking employees who refuse to 
return to work after the governmental award. The power of the Presi- 
dent and the pressure of public opinion in favor of uninterrupted pro- 
duction make this national experiment in arbitration practically com- 

"The Board bases its decisions on the following principles : Workers 
and employers have the right to organize and to bargain collectively 
through chosen representatives. Employers are not to discharge 
workers for membership in trade unions. Workers may not use coer- 
cive measures of any kind to induce persons to join their organization. 
Where the unio{i shop now exists it shall continue to do so, and in es- 
tablishments where unionists and non-unionists work together and the 
employer meets only with employees or representatives engaged in his 
own establishment, the continuance of such conditions shall not be 
deemed a grievance. This declaration, however, is not intended in 
any manner to deny the right or discourage the attempt to form labor 
unions. Safeguards to health shall not be relaxed. Equal pay is 
allowed for equal work. The basic eight-hour day is recognized 
as applying in all cases in which the existing law requires it. The 
right of all workers, including common laborers, to a Hving wage 
is declared."^ 

^ The Nation, October 26, 19 18. 

National Defence 349 

War Labor Policies Board, in the Department of Labor, dealt with 
principles involved in the determination of wages, hours, conditions 
of labor, government labor policies, and the distribution of labor. 

United States Employment Service, in the Department of Labor, 
managed employment oflfices throughout the country and aided in the 
distribution of labor, especially to war industries. 

Bureau of Housing, in the Department of Labor, in charge of pro- 
viding suitable housing conditions in war industries and shipbuilding 

The War Trade Board, charged with the functions : (i) of conserving 
for the United States and the AUies the commodities necessary to their 
economic life and the prosecution of the war, through the control of 
trade with neutrals as well as the Allied powers and (2) of controlling 
American merchants in their transactions with foreigners by the publi- 
cation of the names of enemy corporations or those allied to enemy in- 
terests. For example, an agreement was concluded with Switzerland 
allotting her a certain amount of grain in return for assurances relative 
to certain trading with the enemy of the part of Swiss citizens. 

Board for Vocational Education, created by act approved June 27, 
1918, and authorized to plan and execute plans for the training and 
education of disabled soldiers and sailors so as to fit them for remu- 
nerative and congenial employment in civilian life. '' Every effort will 
be made to assist the disabled man toward that occupation in which 
he is most interested and for which, because of his aptitude and ex- 
perience on the one hand and his handicap on the other hand, he is best 
suited." Funds were provided to support the student in training, to 
assist him in securing desirable employment, and to safeguard his in- 
terests after he secured regular employment. 

Bureau of War Risk Insurance, in the Treasury Department, with 
branches throughout the country, charged with the function of execut- 
ing the provisions of the law (see above, p. 345) relative to allotments 
to the families of soldiers and sailors and to war risk insurance. 

The Council of National Defence, created under act of Congress, ap- 
proved August 29, 1916, and composed of the six cabinet officers : the 
Secretaries of War, Navy, Interior, Agriculture, Commerce, and Labor. 
Its functions were to investigate and to advise Congress and the Presi- 
dent as to the best ways in which to mobilize the industrial, transpor- 
tation, and agricultural interests of the country for immediate con- 
centration and use in national defence. It embraced innumerable com- 
mittees and subcommittees, which acted in an advisory and consulting 
relation to the war agencies of the government. It endeavored to assist 
state committees in the prosecution of their work. Much of the 
planning work of the Council was taken over by the executive boards 
herein described. 

350 American Government and Politics 

The Censorship Board, created under the Trading with the Enemy 
Act, designed to control mail, telegrams, messages, and other com- 
munications to neutral countries, which might be intended for enemy- 

The Committee on Public Information, created to serve as a channel 
of communication between the government and the people relative 
to war aims, activities, and accomplishments, and to disseminate in 
neutral and AUied countries information about the ideals and war aims 
of the United States. 

American National Red Cross, under the presidency of the Presi- 
dent of the United States, a relief organization with government 
sanction assisting the army and the navy in caring for the wounded 
and suffering. 

Alien Property Custodian, empowered to take possession of, manage, 
and sell the property of enemy aliens and to act as custodian for the 
funds accumulated. 

War Finance Corporation, created by act of Congress signed by the 
President on April 5, 19 18, and supplied with an immense capital for 
the purpose of aiding banks that made advances to essential war in- 
dustries, helping savings banks which might be in distress through the 
competition of federal bonds or otherwise, and loaning money to war 

Capital Issues Committee, connected with the War Finance Corpora- 
tion, charged with the duty of supervising the issues of bonds by states, 
cities, counties, and private corporations with a view to keeping their 
expenditures down to the minimum, thus securing to the federal gov- 
ernment money and materials and labor which otherwise might go to 
local improvements or business extensions not necessary to winning 
the war. 

State War Legislation'^ 

While the Congress of the United States was providing the 
national legislation in support of the war, the legislatures of the 
several states were likewise very active in the passage of laws 
designed to place the country in a condition of preparedness. 
The volume of legislation covered a wide range of subjects. 

State Councils of Dejeme. — A number of states passed laws creating 
state councils of defence, consisting of from 7 to 50 members, appointed 
by the governor, and representing the manufacturing interests, labor, 
agriculture, stock raising, the Red Cross and relief societies, the physi- 
cians, bankers, railroads, engineers, the women and the citizens gen- 

^ J. A. Lapp, American Political Science Review, February, 19 18. 

National Defence 351 

erally. The board of public works in West Virginia acts as the state 
council of defence. Appropriations ranging from $50,000 to $750,000 
were made to carry on the work. In Indiana a state council of defence 
was created by executive action after the adjournment of the legisla- 
ture of 1917. 

Military Census. — Half a dozen states, including Iowa and New 
York, provided for the taking of a military census to ascertain the re- 
sources of the state in men and materials. 

Militia Laws. — The federalization of the national guard left the 
states without adequate military protection, and home guards were 
therefore created, consisting of able-bodied male persons not subject 
to conscription, whose term of service was for the duration of the war. 
For the purpose of guaranteeing state-wide security within its borders, 
New York also created a state pohce force. The City of New York 
was authorized to employ emergency police and temporary firemen. In 
Connecticut the governor was authorized to appoint a military emer- 
gency board of three members to perfect and maintain a body of armed 
troops as a constabulary guard, to be recruited from the unorganized 
miUtia of the state; and any town at any annual or special town 
meeting could appropriate money for the maintenance of military or- 
ganizations. Many other states took similar precautionary measures. 

Registration of Aliens. — A few states, including Connecticut, Flor- 
ida, and Maine, enacted laws providing for the registration of aliens 
within a fixed period, usually twenty-four hours after the promulga- 
tion of the governor's proclamation, or within twenty-four hours after 
the alien entered the state. Hotels, boarding houses, and lodging 
houses were required to supply information as to the residence of 
aliens therein. 

Military Instruction in Schools. — Louisiana passed a law requiring 
the teaching of military science to all boys above the eighth grade. 
Maryland and New Jersey appointed commissions to investigate its 
practicability and methods. New York created a military training 
commission, consisting of the major-general commanding the national 
guard, one person appointed by the regents of the state university, and 
one person appointed by the governor. 

Desecration of the Flag. — Several states enacted new or amended 
old laws prohibiting the desecration, mutilation, or misuse of the na- 
tional flag. Several 'states require the flag to be displayed on all 
schoolhouses while school is in session. 

Food Conservation. — The subject of food production, distribution, 
and conservation received marked attention and various expedients 
were adopted to achieve the desired end. For example. New York 
created two commissions to deal with the question of food produc- 
tion, food distribution, and food conservation, and the authority of 

352 American Government and Politics 

these commissions was extended to comprehend fuel and other neces- 
saries of life. Virginia estabhshed a division of markets in the depart- 
ment of agricuhure and immigration ; West Virginia created a bureau 
of markets and enacted a law prohibiting speculation for the purpose 
of cornering the market and controlling the price of foodstuffs, fuel, 
and other necessities of hfe ; Washington created the ofhce of director 
of farm markets and provided for the production and marketing of 
farm products ; Wyoming provided for the exemption of food from 
taxation to the value of $ioo. 

Definition of Crimes. — The existence of a state of war led to the 
definition of new offences against the public peace and the dignity of 
the state and the redefinition of older offences to secure the loyalty of 
citizens and provide for the protection of property and human life. 
Iowa declared the exciting of sedition or insurrection by writing, speak- 
ing, or other means a felony and advocating the subversion or destruc- 
tion of the federal or state government by force, and being a member 
of or attending a meeting or council of any treasonable organization, 
society, or order, a misdemeanor. The destruction of armories, gas, 
electric, telegraph, or telephone plants, sources of food or water supply, 
dams, reservoirs, canals, trenches, machinery, bridges, docks, quays, 
fortifications, warehouses, railroads, or other works necessary to the 
successful prosecution of the war were constituted crimes in Illinois, 
Maine, Maryland, Rhode Island, and Vermonf. 

Aid to Dependents. — Prior to the passage of the military insurance 
act the question of the necessary financial assistance to indigent de- 
pendents of enlisted or drafted men was of first-rate importance, and 
several states enacted laws which afforded partial and temporary re- 
lief. In New York, for instance, any county, city, town, or village was 
authorized to provide financial aid for the dependents of enlisted men, 
and an agency known as the New York patriotic fund was permitted 
to incorporate to furnish aid to the dependents of recruits. 

Schools. — In New York children were released from school attend- 
ance without loss of credit or standing if they were engaged in farm 
work. In Arizona the state board of education was authorized to close 
all educational institutions during the continuance of the war if such 
action was deemed essential. In Connecticut high school pupils over 
fourteen years of age who volunteered and were accepted for farm work 
were permitted to reenter school without loss of standing if they main- 
tained the prescribed food standards. 

Moratorium and Stay Laws. — A few states provided moratorium 
and stay laws whereby suits begun against enlisted men during the 
war were to be suspended until six months after the war was con- 
cluded, and by virtue of which debts due could not be collected during 
the continuance of the war. The amount of property owned by en- 

National Defence 353 

listed persons and exempted from attachment was increased. Laws of 
this kind were enacted by Maine, Maryland, and Oregon. 

Labor Laws. — Vermont authorized the commissioner of industries, 
with the approval of the governor, to suspend the operation of the laws 
relating to the hours of employment of women and children, during the 
continuance of the war. 

Involuntary Labor. — Maryland and West Virginia provided that the 
governor might order all able-bodied male persons between the ages of 
sixteen and sixty, not otherwise regularly employed, to be put to work 
on government contracts. 

Discrimination against Soldiers. — Laws designed to prohibit dis- 
crimination against soldiers and sailors in theatres, skating rinks, pub- 
lic conveyances, inns, hotels, and other public places were enacted by 
Maine and Texas. 

It is clear from even this incomplete review of America's 
legislative preparation for war, that no power over the lives or 
property of citizens deemed necessary for the successful prosecu- 
tion of the armed conflict was withheld from the duly constituted 
public authorities. The farmer's wheat, the housewife's sugar, 
coal at the mines, labor in the factories, ships at the wharves 
and on the high seas, trade with friendly countries, the vast 
national railway system, the banks and stores, private riches, 
lands and houses — all were mobilized and laid under what- 
ever obligations the requirements of waging war made impera- 
tive. Never before were labor and capital, land and natural 
resources so completely subjected to governmental authority in 
a common enterprise. 

Military and Naval Administration 

On the side of the civil administration, the army and navy- 
are under the control of the Department of War and the Depart- 
ment of the Navy, subject always, of course, to the President 
of the United States, who in time of peace as well as war is the 
commander-in-chief of our armed forces. The heads of these 
departments are usually civilians without practical military or 
naval experience. 

The Secretary of War, appointed by the President and Senate, 
directs the military establishments of the United States; he 
has charge of the fortifications, river and harbor improvements, 
and bridges ; he supervises the administration of the Philippine 


American Government and Politics 

Islands, the Panama Canal, and the government of the Canal 
Zone. All matters relating to national defence, sea-coast forti- 
fications, the improvement in the navigable waters of the United 
States, military education at West Point, and military education 
of the army, are under his control. He must subject to examina- 
tion all estimates of appropriations for the expenses of his depart- 
ment and the entire miUtary estabUshment, including the pur- 
chase of mihtary supplies. He must also scrutinize all expen- 
ditures for the support, transportation, and maintenance of the 
army, and, in addition, all other expenditures which may be 
placed in his charge. 

As a connecting link between the civil administration and the 
army in the field. Congress created, by an act approved February 
14, 1903, a General Staff, to be composed of officers detailed from 
the army at large under the rules prescribed by the President. 
This staff includes not only general officers (major-general as 
chief) but also colonels, majors, and captains, thus giving the 
directing staff points of contact with the rank and file of the 
army. To keep this body in constant touch with the practical 
problems of warfare, it is provided that officers detailed to the 
General Staff may serve in that capacity for only four years at 
most ; and on returning to the army they must remain there at 
least two years before they can be detailed again, except in time 
of emergency. The head of the staff is the Chief of the Staff, who 
acts under the direction of the President and the Secretary of War. 

It is the duty of the General Staff to prepare plans for national 
defence and for the mobilization of the national forces in time 
of war ; to investigate and report upon all questions relating to 
the efficiency of the army and its state of preparation ; to render 
professional aid to the Secretary of War and to the general 
officers and their superior commanders ; and perform such other 
military duties, not otherwise assigned by law, as the President 
may from time to time prescribe. The office of the Chief of 
Staff constitutes, for administrative purposes, a supervising mih- 
tary bureau in the War Department. 

The Navy Department, created in 1798, is in charge of the 
Secretary of the Navy, appointed by the President and Senate. 
He is authorized to perform such duties as the President may 
assign him, and to superintend the construction, manning, 
armament, equipment, and employment of vessels of war. He 

National Defence 355 

is immediately aided by an assistant secretary, and by a chief 
clerk who has charge of the records and correspondence, and per- 
forms other routine duties. 

To assist in securing and preparing competent officers for the 
army and navy, the United States maintains two institutions 
of higher learning: the MiUtary Academy at West Point and 
the Naval Academy at Annapolis. The course of instruction at 
both institutions is principally mathematical and professional, 
but it embraces also a large range of additional subjects. The 
full quota of cadets at West Point is maintained by assigning 
two cadets to each United States Senator and two to each con- 
gressional district and territory, and a number designated by the 
President (two by the Vice-President) including men from the 
regular army and the militia. As vacancies occur, appointments 
are made, on the nomination of the Senators, Representatives, 
Delegates, and the President respectively; but these nominees 
must pass regular examinations testing their preparation for 
the course of instruction. Midshipmen for the Naval Academy 
are secured by assigning five to each Senator, Representative, 
and Delegate in Congress, two to the District of Columbia, and 
fifteen to the President. Graduates from these institutions are 
given special advantages on entering into active service. 

Army and navy officers are appointed by the President and 
Senate — subject to the constitutional limitation reserving the 
appointment of miHtia officers to the states. In time of war 
it has been impossible to secure enough army officers from West 
Point and the government has been compelled to call men from 
civil life or from the ranks to fill high places. It has been pro- 
vided by law that in time of peace army and navy officers may 
be removed only by court-martial ; but in time of war the Presi- 
dent may remove summarily. 

The actual direction of war is obviously difficult to describe. 
The power of direction is, of course, vested in the President ; but 
the extent to which he may use it to control not only the general 
but the minute movements of the army and navy depends upon 
many things : the character of the theatre of war, the facihty of 
communication, the confidence of the President in his own mili- 
tary abiUty, and the regard which he has for the abihties of the 
officers immediately under his command. He could, of course, 
take the field himself if he saw fit. 

356 American Government and Politics 

During the Spanish-American War, President McKinley, the 
Secretary of War, and the Secretary of the Navy sat together in 
what is known as the War Room at the White House, which was 
connected with the scenes of action by the most modern means of 
communication; and from time to time they sent out general 
instructions, and detailed orders to commanding officers. 

We may say, therefore, that the President and his immediate 
advisers in Washington sketch the general plans of campaign; 
supervise their execution ; make changes and issue new directions 
from time to time, always cooperating with the officers at the 
front, trusting more or less to their use of discretion amid the exi- 
gencies of battle. 

The Pension System 

No country in the world has been more liberal in the provision 
of pensions for soldiers and sailors and those dependent upon 
them than the United States. A pension system was established 
as early as 1776. Following every war there is a new pension law 
or rather a series of pension laws, making provisions for those who 
have served their country ; and payments for previous services 
are constantly being made more liberal. In 1905, the roll of 
pensioners reached 1,004,196, the largest in the history of our 
country; in 1919 the number stood at 624,000. The total 
amount actually disbursed in pensions for 1919 was $222,000,000 
in round numbers. By acts of October 6, 191 7, and June 10, 
19 1 8, special provisions were made for the soldiers and sailors of 
the World War. 

It is not only the soldiers who have seen actual service that 
are pensioned. Many widows, children under the age of sixteen 
years, and helpless minors are provided for, and state and na- 
tional homes are established for the disabled and indigent. It 
was not until November 11, 1906, that the last surviving widow 
pensioner of the Revolutionary War died and two daughters of 
soldiers in that war were still on the roll in 1908. The last pen- 
sioned soldier of the War of 181 2 died in 1905, but the roll of 
that war contained in 1908 over 400 widows. On June 30, 1919, 
there were 271,000 survivors of the Civil War on the pension roll. 

The administration of the pensions is in charge of a commis- 
sioner in the Department of the Interior. 

National Defence 357 

The Cost of War 

During the fiscal year 1908, the United States spent for army, 
navy, and fortifications no less than $204,122,855.57, or 36.5 per 
cent of the total revenue, exclusive of postal receipts (because 
the revenues and expenditures in that department constitute 
a balanced account). During the same year also we speiit 
$180,678,204, or about 31 per cent of our total revenue for pen- 
sions, interest on war debt, and other charges incurred by past 
wars. In the daily statement issued by the Treasur}^ Depart- 
ment on April 30, 1909, we find an expenditure of 41 per cent 
of all the revenues of the fiscal year up to that day for the army, 
navy, and fortifications — that is, in preparation for war — 
and 31 per cent of all the revenue on account of past wars, mak- 
ing a total expenditure of 72 per cent of all the federal re\^enues 
thus collected, either on account of past wars or in preparation 
for war. 

There was at the same time a strong tendency to increase mili- 
tary expenditures. Under the second administration of Presi- 
dent Roosevelt, the per capita appropriation for the army was 
$3.66, — more than two and a half times the amount appropri- 
ated under Mr. Cleveland's administration. Under Mr. Roose- 
velt, the naval appropriations, measured in relation to the popu- 
lation, were three times as great as under Mr. Cleveland ; and 
at the same time there was an increase of 50 per cent in the 
expenditure for fortifications. 

The increase in appropriations for military purposes was es- 
pecially rapid after the Spanish War. The average annual 
army appropriations for the eight years just preceding that war 
amounted to $24,000,000; for each of the eight years ending 
in the fiscal year of 19 10, the average amount totals $83,000,000. 
During this same period the annual average appropriations for 
the navy rose from $27,500,000 to more than $102,400,000. 

The climax was, of course, reached during the War against 
Germany. The net cost of that conflict to the United States is 
placed at $2- 625,252,843, exclusive of over $9,000,000,000 ad- 
vanced in tb^'^.orm of loans to the Allied forces. The per capita 
interest on tne national debt in 19 18 exceeded the per capita 
army appropriations ten years before. 



The Power of Congress to Tax * 

Under the Constitution Congress has a general power to lay and 
collect taxes, duties, imposts, and excises. Subject to certain rules 
which we shall consider later, there is no limit on the amount of 
taxes Congress may lay. The Chief Justice of the Supreme Court, 
in speaking of a tax which was so excessive as to impair the value 
of the franchises of state banks, said that it was not within the prov- 
ince of the judiciary to prescribe to the legislative department of 
the government hmitations upon the exercise of its acknowledged 
powers.^ If the power to tax is exercised oppressively, he declared, 
the remedy for the wrong rests with the people who choose the 

1. Some of the restrictions on the exercise of this taxing power 
are expressly laid down in the Constitution. It is provided in 
that instrument that all duties, imposts, and excises shall be uni- 
form throughout the United States; and under an interpretation 
of the Supreme Court, a uniform tax is one which falls with the 
same weight upon the same object wherever found within the 
United States. For example, Congress once laid a duty of 
fifty cents on every passenger coming from foreign countries 
into the United States, and this tax was held to be uniform, 
although it was levied principally at a few ports. Again, an 
inheritance tax is uniform ^ when it is imposed equally upon all 
inheritances of the same amount and character, though it may so 
happen that the taxable inheritances may occur in only a few 
states of the Union during the existence of the law. 

2. The second express limitation on the taxing power of Con- 
gress is that direct taxes (except income taxes) shall be appor- 
tioned among the states according to their respective numbers.^ 


1 For the social implications of this power, see Readings, pp. 283 and 331. 

2 Veazie Bank v. Fenno, 8 Wallace, 533. 

3 Readings, p. 323. * For an example, Readings, p. 327. 


Taxation and Finance 359 

3. The Constitution also provides that Congress shall not lay 
a duty or tax on articles exported from any state, and that, in the 
regulation of commerce and revenue, no preference shall be given 
to the ports of one state over those of another. To prevent dis- 
crimination between states, it is further stipulated that vessels 
bound to or from one state shall not be obliged to enter, clear, or 
pay duties in the ports of another. 

4. In addition to the express Hmitations * laid down in the Con- 
stitution, there is an important impHed restriction on the taxing 
power. Congress cannot tax the instrumentalities or the property 
of any state.^ This doctrine has been appHed in a number of 
cases. For example, during the Civil War, Congress levied a 
tax on the gains, profits, and income of every person residing in the 
United States ; a judge in Massachusetts refused to pay the tax 
upon his income which was derived from the commonwealth, and 
the Supreme Court of the United States upheld him in his refusal, 
declaring that the federal government was thus taxing an instru- 
mentaUty of a state. 

Broadly speaking, there are two forms of taxes in the United 
States, direct and indirect; and it is always necessary to decide 
into which of these two categories any tax about to be laid by 
Congress falls, and, therefore, whether the rule of apportionment 
according to population or the rule of uniformity shall apply. 

I. During the early years of the federal government it was 
generally understood that there were two kinds of direct taxes — 
a capitation or poll-tax and a tax on land.^ It was held by the 
Supreme Court in 1895 that taxes upon income from real and 
personal property were likewise direct, and therefore constitu- 

^ The taxing power of the federal government must be exercised according 
to due process of law. See above, p. 151. 

^ See McCuUoch v. Maryland, 4 Wheaton, 316. 

3 In practice the federal government has imposed, as avowedly direct, 
taxes on real estate and slaves. For example, in 1 798, a direct tax was im- 
posed on real estate, and a capitation tax was laid on slaves; and in a few 
other instances this precedent was followed. In 1861, under the necessity 
of raising funds to carry on the Civil War, the federal government voted a tax 
of twenty million dollars to fall on lands and improvements, and divided this 
amount among the states in proportion to their respective populations as 
shown by the census. Some of the states assumed the entire quota allotted 
to them, and after the war the amounts collected were refunded to the states 

360 American Government and Politics 

tional only when apportioned among ihe states according to their 
populations.^ On account of the difficulties of assessing direct 
taxes and apportioning them among the states, and the resulting 
injustice, the constitutional Hmitation is almost a prohibition. 
However, in 1913, after a long agitation over the matter, a con- 
stitutional amendment was adopted authorizing Congress to lay 
taxes upon private incomes from all sources without reference 
to any census or enumeration. 

II. Indirect taxes, which are subject only to the rule of uni- 
formity, may be taken to include excise taxes upon commodities, 
such as whiskey and tobacco; customs duties imposed upon goods 
coming into the United States from other countries; taxes upon 
inheritances;^ license taxes on occupations; duties on the sale 
of commodities, such, for example, as the stamp tax laid on proprie- 
tary articles during the Spanish War; '^ stamp taxes such as those 
on checks, mortgages, and other papers; and, apparently, taxes 
on incomes not derived from real or personal property. 

Revenues and Revenue Bills 

Except in case of war or shortage of revenue it was for a long 
time the practice of the federal government to rely upon indirect 
taxation as its prime source of revenue. It was the intention of 
the Falthers that indirect taxes should be the chief resort of the 
central government. In common with all statesmen they recog- 
nized the natural dislike of the people for any form of tax which 
must be paid directly out of their own pockets in lump sums to 
the government. Not only is a direct tax difficult to collect on 

1 During the Civil War a federal tax was laid upon incomes, gain, and 
profits by the year, and in Springer v. United States (102 U, S. R., 586) the 
Supreme Court held that this was an indirect tax, and therefore did not have 
to be apportioned according to population. The Court said in this case : 
" Our conclusions are that direct taxes within the meaning of the Constitu- 
tion are only capitation taxes as expressed in that instrument and taxes on 
real estate; and that the tax, of which the plaintiff in error complains, is 
within the category of an excise or duty." Upon reexamination of the ques- 
tion in connection with the income tax law of 1894, the Court maintained 
that a tax upon incomes from land is as much a direct tax as if levied upon the 
land itself at so much an acre, or according to its valuation. Readings, p. 328. 
In 1909, Congress passed and referred to the state legislatures an amendment 
to the federal Constitution authorizing Congress to impose an income-tax 
without apportionment. Ratified and proclaimed, 1913. See above, p. 371. 

2 Readings, p. 323. ^ See above, p. 352. 

Taxation and Finance 361 

account of this natural opposition to it ; it is expensive to ad- 
minister, owing to the necessity of repeated valuations of the 
property on which it falls and to the numerous operations re- 
quired in laying and collecting it. 

An indirect tax, on the other hand, has the advantage of great 
simplicity. It falls in small amounts upon each article of con- 
sumption, and it is easy to lay because it is imposed upon the 
same articles wherever they are found. 

Accordingly, until 191 7 the government derived its revenues 
from two prime sources, duties on imports coming from foreign 
countries, and internal revenue or excise taxes laid on spirits 
and tobacco. A slight departure from almost complete reliance 
on customs and excises was made in 1909 when a tax was laid 
on the incomes of corporations, and a still greater departure was 
made in 19 13 when a Democratic Congress laid a tax of one per 
cent upon private incomes with certain exemptions. In 191 7 
it was decided to meet a large part of the cost of the war on 
Germany by a heavy tax on incomes, steadily rising with the 
size of the incomes, a progressive inheritance tax, and a heavy 
and graduated excess profits tax laid upon business and in- 
dustrial concerns. 

The Constitution definitely provides that all bills for raising 
revenue shall originate in the House of Representatives, but au- 
thorizes the Senate to propose or concur in amendments as in the 
case of other bills. It was the purpose of the framers of the Con- 
stitution to vest the power of imposing taxes in the hands of that 
branch of the national legislature w^hich was nearer the people 
on whom the burden must fall. " The House of Representatives," 
says The Federalist, "holds the purse, — that powerful instru- 
ment by which we behold in the history of the British Constitu- 
tion an infant and humble representation of the people gradually 
enlarging the sphere of its activity and importance and finally 
reducing as far as it seems to have wished all the overgrown 
prerogatives of the other branches of the government. This 
power over the purse may, in fact, be regarded as the most com- 
plete and effectual weapon with which any Constitution can arm 
the immediate representatives of the people, for obtaining a 
redress of every grievance and for carrying into effect every just 
and salutary measure." 

In spite of this confident prediction, however, the influence of 

3^2 American Government and Politics 

the Senate in shaping revenue legislation has been steadily on the 
increase, until it now frankly assumes, under its power to make 
amendments, what is for practical purposes the right of initiating 
revenue measures. For example, in 1871, the House passed an 
act repeaHng the existing duties on tea and coffee — a brief 
measure only a few hues long; and the Senate substituted for 
this proposal of a slight change, "an act to decrease existing 
taxes, " designed to bring about a general revision of the laws 
imposing duties and internal taxes — in all a measure of some 
twenty printed pages. The House protested against this action 
on the part of the Senate, declaring it to be in conflict with the 
true intention and purpose of the clause of the Constitution 
which requires revenue bills to originate in the lower branch of the 
legislature. During the debate on the subject in the House, 
Mr. Garfield said: "It is clear to my mind that the Senate's 
power to amend is Hmited to the subject-matter of the bill. That 
limit is natural, is definite, and can be clearly shown. If there 
had been no precedent in the case, I should say that a House bill 
relating solely to revenue on salt could not be amended by adding 
to it clauses raising revenue on textile fabrics, but that all the 
amendments of the Senate should relate to the duty on salt. 
To admit that the Senate can take a House bill consisting of two 
lines, relating specifically and solely to a single article, and can 
graft upon that bill in the name of an amendment a whole system 
of tariff and internal taxation, is to say that they may exploit all 
the meaning out of the clause of the Constitution which we are 
considering, and may rob the House of the last vestige of its 
rights under that clause." In spite of the protest on the part of 
the House, the Senate was able to force the adoption of a consider- 
able portion of its plan of revision. 

Again in 1894, the Wilson tariff bill as it came from the House 
of Representatives was sadly mutilated in the Senate. In fact, 
"its revenue reform principles were hardly recognizable"; but in 
the conference committee the House of Representatives was 
forced to yield on almost all the points. Again, in 1909, when the 
Payne tariff bill came from the House of Representatives, it was 
referred to the finance committee of the Senate, of which Mr. 
Aldrich was chairman, and when reported back from that com- 
mittee it was in many important respects a new bill.^ As it 

* In fact the Senate Committee had virtually prepared its own bill before 
the House bill was referred to it. 

Taxation and Finance 363 

finally passed the Senate it contained a number of radical depar- 
tures from the provisions of the House bill and in spite of the inter- 
vention of President Taft many of them were adopted during the 
sessions of the conference committee. It is generally believed 
that the Senate exerted far less influence in the drafting of the 
tariff measure of 19 13 than it had exerted in forming previous 
revenue measures. 

The actual work of preparing revenue bills in the House is 
assigned to the committee on ways and means. Tariff measures 
are drawn up by the members of the committee representing the 
party which has a majority in the House. When it becomes 
apparent that the temper of the country is demanding a re- 
vision of the tariff, the House of Representatives generally 
authorizes the committee to gather information preparatory 
to the adoption of the new schedules. For example, in the 
spring of 1908, the committee on ways and means was author- 
ized, on the motion of its chairman, Mr. Payne, to sit during 
the recess of Congress and hold hearings to collect information 
upon which to base a revision of the tariff; and at the same time 
the Senate adopted a resolution authorizing its finance com- 
mittee to secure expert assistance in making tariff investiga- 
tions both before and after the introduction of the tariff bill in 
the House of Representatives. 

It is a common practice for the committee to hold many sessions 
which are attended by the representatives of the various industries 
of the nation as well as by consumers and other persons interested 
in the tariff, who advance their respective claims for protection 
or for reduction.^ When the majority members of the committee 
have taken all the evidence that they desire and thoroughly 
considered the issues involved, they draw up a complete bill 
which is sometimes discussed in the full committee. Inasmuch as 
a tariff bill is always a political measure, the minority members on 
the committee are generally not consulted at all, and may in fact 
know nothing about the exact provisions of the bill until it is 
reported to the House. The minority, of course, may present 

^ See Readings, p. 333, for the interesting extract from Mr. Dingley's 
Memoirs, describing the preparations of the Dingley bill. The hearings 
are always one-sided. It is the " interests " who prosecute their case with 
great zeal. Few consumers have the personal interest or knowledge tu 
make their appearance before the committee effective. 

364 American Government and Politics 

a report of their own by way of protest, but it seldom amounts 
to anything. 

When a revenue bill is reported to the House by the chairman 
of the committee on ways and means, it is debated in the com- 
mittee of the whole on the state of the Union. The discussion at 
first is quite general, so that practically every member who has 
anything to say about the proposed measure is given an opportun- 
ity. The general debate is then followed by a debate on details 
under the five-minute rule. From time to time as the discussion 
proceeds, the committee on ways and means will report changes, 
the chairman of that committee as an astute party leader being 
quick to perceive the points on which it is expedient and necessary 
to yield. The bill as modified under the pressure of debate is 
generally passed by the House under "the previous question." 

When the measure reaches the Senate, it is promptly referred 
to the committee on finance which has, as a matter of fact, been 
busy on its own bill and has watched with close scrutiny the 
progress of the discussion in the House. After making amend- 
ments or substituting practically a new bill, the committee makes 
its report to the Senate. The debate in that body, as we have 
seen, is unHmited; and the tariff measure usually receives far 
more penetrating criticism there than in the House. 

After its passage, the bill purporting to be the original measure 
with Senate amendments is returned to the House, which promptly 
votes not to concur in the Senate amendments and asks for a 
conference. The Speaker, thereupon, appoints the chairman of 
the committee on ways and means and some other members to 
represent the House, and the presiding officer of the Senate selects 
the chairman of the committee on finance and certain other 
members to represent that body. The conference committee 
immediately begins a series of sessions which always end in a 
compromise, the Senate receding from some of its amendments 
and the House yielding on others. Sometimes the conference 
committee takes into its confidence the President, whose views 
as party leader with regard to the tariff cannot be neglected. 
As is well known, President Wilson exerted a considerable influence 
in the conference committee discussions in 1913 which led to an 
adjustment of the differences between the two houses. Through- 
out these various operations on the bill, it must be remembered, 
many provisions are framed with a certain knowledge that a 

Taxation and Finance 365 

compromise will ultimately result. A compromise, therefore, 
is frequently no compromise. When the conference committee 
has come to an agreement, its report is immediately submitted 
to the House, where it is passed without amiendment and then 
sent to the Senate, where it is likewise speedily accepted. There- 
upon the bill goes to the President for his signature. 

This method of drafting revenue measures is attended by some 
serious drawbacks. In the first place, no man or group of men 
can assume full responsibihty for it. The President, who may 
have been elected on a platform favoring the reduction of the 
tariff, can do nothing more than exert such influence as his posi- 
tion and party leadership may give him_ His veto of a tariff bill 
would be an extremely drastic measure of control, resulting in 
great confusion to the business interests awaiting a settlement. 
In the House, the chairman of the committee on ways and means 
might be held at least partially responsible, were it not for the 
fact that the Senate has such an unlimited amending power. 

In actual practice the most important points of contention are 
settled in the conference committee, so it may be said that the final 
word on tariff pohcy and revenue measures is said by a committee 
unknown to the Constitution. This is especially true because 
both houses are in practice constrained to accept the measure as 
reported from this committee, fearing to reopen a long and tedious 
debate and thus delay the conclusion of the matter indefinitely. 
The complete bill is, therefore, not a measure which has received 
in every point careful consideration by a responsible legislature; 
it is a series of compromises rushed through in its final form 
without deliberation. The great defects of this system are two: 
absence of precise responsibihty and a tendency to cause the pro- 
longation of an outworn tariff pohcy on account of serious 
obstacles in the way of a speedy and effective revision. 

Appropriation Bills 

The preparation of appropriation bills, unHke the preparation 
of revenue bills, is not concentrated in the hands of any single 
committee in the House of Representatives, but is intrusted to 
a number of committees. In the beginning of our history, 
when expenditures were relatively small, they were practically all 
prepared by the com.mittee on ways and means, thus affording 

^66 American Government and Politics 

some coordination between the taxing and spending branches of 
the government. This coordination was made even closer by 
the requirement of the act of 1789 creating the Treasury De- 
partment, which provided that the Secretary should prepare and 
report estimates of the public revenues and the public expendi- 
tures. Indeed the first Secretary, Alexander Hamilton, pro- 
posed to present his reports to Congress in person and to defend 
and explain them on the floor of the House. 

In the course of time the responsibility for appropriations, at 
first concentrated in the hands of the Secretary and one com- 
mittee of the House, was dissipated. In 1865, the scrutiny of 
appropriations was taken from the ways and means committee 
and vested in a committee on appropriations. In 1885 a further 
disintegration occurred when appropriations were distributed 
among a number of committees in the House. As a result, 
in time, there came to be in the House nine committees reporting 
at least fourteen separate appropriation bills and five committees 
reporting measures carrying a charge on the treasury. In the 
Senate at least fifteen committees had charge of appropriations. 
In the course of this evolution, the Secretary of the Treasury 
ceased to act as a minister of finance giving counsel and advice 
to Congress on the desirability of particular revenue or appro- 
priation measures. In this regard, his duties became perfunc- 
tory. He merely collected from department heads the estimates 
of expenditures for the coming year, compiled them into the 
Book of Estimates, and transmitted the whole to Congress. As 
some one remarked, he merely acted as a messenger to carry to 
Congress the requests of spending officers for appropriations to 
meet their needs for the coming years. 

Under this time-honored system, neither house of Congress 
ever had before it, while passing any one among fourteen appro- 
priation bills, a complete programme of revenues and probable 
expenditures in totals. One appropriation bill would be reported 
out of committee, debated, perhaps amended, sent to the other 
house, debated and amended, adjusted in a conference com- 
mittee representing the two houses, and finally sent to the Presi- 
dent for his signature. The other bills followed at irregular in- 
tervals and not until the very end did any one have any accurate 
idea of how much money was being voted away. Instead of 
having a balance sheet before them all the time and considering 

Taxation and Finance 367 

the entire revenue and expenditure programme as one programme 
(just as any well-managed business concern or household would 
do), Congress did its work in a piecemeal fashion. The result 
was for many years either a deficit or a huge surplus in the 
treasury, according to chance. It was not until after 19 14, when 
mounting expenditures made the problem of adequate revenues 
a pressing one, that Congress took under consideration a reform 
in its methods. Drastic reform is doubtless many years ofif, 
even now. 

Appropriation bills, when passed by the House, are trans- 
mitted to the Senate, and with some exceptions are referred to 
the committee on appropriations in that body. High officials 
and other persons, who were unsuccessful in obtaining increased 
or new appropriations in the House, immediately begin to besiege 
the Senate committees. Appropriation bills are debated in the 
Senate with more freedom than obtains in the House, and this 
freedom enables any Senator who desires a particular appropria- 
tion for his state to threaten to ''talk some other bill to death" 
unless his terms are conceded. It is also a general practice 
for the Senate to increase very materially the appropriations 
adopted by the House. For example, it added to the House bills 
for the year 1907-08 sums amounting to more than $70,000,000. 

As in the case of tariff bills, differences between the Senate and 
the House are adjusted by a conference committee representing 
the two bodies. The result is always a compromise which is 
accepted, as a rule, without reopening the discussion. We find 
here the same lack of responsibility and coordination which 
occurs in the case of revenue measures, and a total failure 
of anything hke a proper adjustment pf revenues and ex- 

In Great Britain, the budget, embracing the estimated expendi- 
tures and the revenue measures to meet them, is prepared under 
the direction of a responsible minister, the Chancellor of the 
Exchequer, and when it is adopted it is a finished project which 
has received the final scrutiny of both houses. Of course, the 
minister may be wrong as to the estimates or the revenues which 
may accrue from his proposed measures ; but at all events there 
is an actual attempt to balance the outgo and the income. In 
the United States, however, several groups of men have charge of 
spending money, while the chief revenue measure, the tariff act, 

368 American Government and Politics 

is designed by other groups for the protection of industries rather 
than for meeting the expenses of the government. 

The Movement for Budget Reform 

As the expenditures of the national government mounted, this 
method of making appropriations became the subject of severe 
criticism. It was urged that as revenues and appropriations 
were separated, the government never had a balance sheet show- 
ing income and outgo, but always worked in the dark. It was 
pointed out that no one in Washington was responsible for view- 
ing expenditures as a whole and cutting them to meet receipts in 
such a way as to make a consistent, reasoned programme of public 
work. Neither the President nor the Secretary of the Treasury 
could be held accountable for formulating a scheme of expendi- 
tures for the great departments of government. In Congress, 
irresponsibility was even more marked. Department heads and 
others seeking appropriations constantly besieged the doors of the 
committees. Every government interest was represented in the 
pressure on the committees for larger appropriations. A new 
bureau or agency was created and it immediately began to lobby 
for increased funds. Army and navy officers, loyal to their 
branch of the service, always presented insistent claims for addi- 
tional money. Then there was the interminable list of appro- 
priations forced upon Congress through log-rolling — appropria- 
tions for post offices, river and harbor improvements, naval 
stations, docks, and other local pubhc works.^ 

More than once members protested against these methods. 
''This practice," exclaimed Mr. Cannon in the House in 1902, 
"of going from committee to committee that, under the rules 
of the House, has jurisdiction, and then before the matter has 
been investigated, by the aid of a willing Senate, failing in one 
place, rushing to another that has not jurisdiction, and stick- 
ing in amendments here, there, and yonder, ought to be done 
away with. Appropriation for the next year, appropriation for 
this year, legislation here, legislation there. If action is con- 
tinued along these lines, it will demoralize the matter of appro- 
priation and bring scandal and criticism — deserved criticism — 
from the people of the country." 

1 See C. C. Maxey's article "A Little History of Voxk" National Munic- 
ipal Review, December, 19 19. 

Taxation and Finance 369 

Criticism of appropriation methods and especially the absence 
of responsibility for preparing the financial programme led in 1909 
to the enactment of a measure designed to draw the President 
into the process. Under this act the Secretary of the Treasury 
was required to collect from all of the executive departments es- 
timates of the expenditures necessary for the ensuing fiscal year 
and then to calculate the probable revenues for the same period. 
The act then provided that the President might, in case a prob- 
able deficit was shown by the treasury estimates, recommend 
ways and means for meeting the situation. This measure from 
which much was hoped at the time proved quite ineffective. 
Although President Wilson in his message of December 7, 191 5, 
did act under its provisions, it has been for the most part 
utterly ignored. 

Impatient at the fiscal methods employed by the federal gov- 
ernment, President Taft requested Congress to grant an appro- 
priation to conduct a general inquiry into the methods of trans- 
acting public business with a view to attaining greater efficiency 
and economy. By an act approved June 25, 19 10, Congress 
granted the request and the "President's Commission on Econ- 
omy and Efficiency" was created under the direction of Dr. 
Frederick A. Cleveland. This commission continued its work 
for three years and among its many important reports was a 
document entitled ''The Need for a National Budget" (62d 
Cong., 2d sess.. House document. No. 854). With the work 
of this Commission there began the agitation for the establish- 
ment of a national budget system for making appropriations, 
which led to the introduction of budget measures in both houses 
of Congress. 

The term '' budget system," though loosely used in common 
practice, is gradually coming to include a number of elements : 

1. Responsibility for preparation of the budget, including 
estimates of revenues and expenditures for the coming year. 

2. The form and content of the document or series of docu- 
ments known collectively as ''the budget." 

3. Legislative action in the consideration and adoption of the 
budget, or strictly speaking the measures of law authorizing 
appropriations and providing revenues. 

4. Measures and instrumentalities for carrying the appropri- 
ation and revenue laws into execution. 

370 American Government and Politics 

With reference to the first subject, all proposed budget legis- 
lation in Congress agreed in making the President responsible 
for presenting a budget to Congress. It is now generally con- 
ceded that the executive branch of the government should be 
made responsible for laying before the legislature a complete 
programme for revenues and expenditures. 

As to the content of the budget, there is general agreement that 
it should include at least two important parts: 

Part I. The revenue and expenditure programme, and infor- 
mation designed to elucidate it, embracing among other things : 

1. A summary statement showing the total receipts and ex- 
penditures of the previous two years and the estimated receipts 
and expenditures for the coming year. 

2. Details of the summary statement, including departmental 
requests for funds (and supporting data from department chiefs) 
with the allowances made by the executive set forth in parallel 
columns, presenting to Congress and to the public the work 
requirements as viewed by operating officials. This analysis 
should be linked line by line with the summary statement fur- 
nishing the supporting data for proposed changes. 

3. An analysis of all increases over and decreases from the 
previous year, indicating the purposes for which they are made, 
such an analysis to present the public policy and work pro- 
gramme involved in each material increase or reduction. 

4. Any collateral information necessary to explain the exact 
financial condition of the government, such as fund balance 
statement, surplus statement, a debt statement, an operating 
statement, and departmental reports of accomplishments. 

Part II. Measures of law providing revenues and appropri- 
ating money for the purposes decided upon by the legislature. 
Revenue laws call for no discussion here, but attention should be 
drawn to the fact that they involve fundamental questions of 
public policy. As to the appropriation measures, it is generally 
agreed that appropriations in large amounts, "lump sums," are 
highly undesirable and that they should all be itemized to a cer- 
tain degree for the purpose of securing control over the spending 
officer at whose disposal the funds are placed. It need hardly 
be pointed out that it is through the form of the appropriations 
that the legislature may control in minute detail the expendi- 
tures and work of the department head or bureau chief. 

Taxation and Finaiije 371 

The problem of legislative procedure in dealing with the bud- 
get has received less attention from the hands of advocates of 
financial reform than its importance deserves. Experience has 
shown that the executive may present a well-planned programme 
of expenditures to the legislature, only to have it mutilated be- 
yond recognition. All that he can do to preserve his programme 
is to send messages to the legislature and conduct secret negotia- 
tions with legislative committees in charge of expenditures. 
To meet this objection it has been proposed that : (i) the budget 
when submitted to the legislature should not be referred to a 
committee or committees, but should be considered first in com- 
mittee of the whole, and that (2) the executive or his cabinet 
members should be present in person to explain and defend the 
budget proposals which they have formulated. The second of 
these projects was embodied in the New York state constitution 
of 19 1 5 which was rejected by the voters, and it has been re- 
peatedly advocated in the Congress of the United States.^ 

In 191 8 a series of bills was introduced in the Senate of the 
United States by the Hon. Medill McCormick proposing the 
following reforms : 

1. Giving the President through the Treasury Department 
the power of revising the estimates of expenditures and holding 
him responsible to Congress for the sums expended. 

2. AboHtion of the ways and means and the appropriation 
committees, taking power to report expenditure measures from 
all other committees, and the creation of one grand budget com- 
mittee with power to add to the President's estimates only by a 
two-thirds vote. 

3. Creation of a single auditor-general appointed by and 
responsible to the House of Representatives, 

4. Abolition of the nine committees on expenditures in the 
several departments and the creation of a single committee of 
departmental accounts to cooperate with the auditor in the 
supervision of all expenditures. 

5. Remove from the Treasury Department all services not re- 
lated to the receipts and expenditures of the federal government. 

In the autumn of 1919, the House of Representatives passed 
by an overwhelming majority a measure introduced by Mr. 

* See Municipal Research, Numbers 61, 62, 63, 80, published by the New 
York Bureau of Municipal Research. 


American Government and Politics 

Good, of Iowa, providing for a consolidated budget to be pre- 
sented by the President to Congress. The measure called for 
the creation of a budget bureau directly under the personal su- 
pervision of the President, with the thought that he should be 
held immediately responsible for the formulation of the expendi- 
ture and revenue policies of the government. At the same time 
a resolution was introduced in the House of Representatives 
centralizing control over all appropriation measures in the hands 
of a single committee. 

The Good bill was challenged in the Senate, particularly by 
Senator McCormick, who contended that owing to the nature of 
the work, the Secretary of the Treasury should be made the 
responsible budget officer of the government. To those who 
were anxious to place the responsibility squarely upon the Presi- 
dent, he replied that as the President appointed and could re- 
move the Secretary of the Treasury he was in effect responsible 
for the acts of his agents. The budget would therefore be a presi- 
dential budget no matter who was immediately charged with 
the duty of assembling and reviewing the estimates prepared 
by the department heads. In reply to this contention it was 
urged in defence of the Good bill that the Secretary of the Treas- 
ury, being merely a peer among peers in the cabinet, could not in 
fact exercise any very drastic powers in the way of reductions in 
requests for funds. Inasmuch as all political parties are pledged 
to some kind of a budget system, it is highly probable that its 
establishment cannot long be delayed, but at the opening of 1920 
there were not many signs of a thoroughgoing reform effective 
enough to sweep away the evils of the log-rolling and the ''pork 
barrel." ' 

The Collection of Revenues 

The collection of the revenue is intrusted to two branches of 
the Treasury Department — one having charge of the customs 
duties and the other the internal revenue. For the collection of 

1 American literature on the budget has grown rapidly during recent 
years. Willoughby and Lindsay, Financial Administration of Great Britain; 
R. Stourm, The Budget (translation of a famous French work) ; W. F. 
Willoughby, Problem of the National Budget; Collins, National Budget 
System. There is an amusing and informing paper by Dr. C. C. Maxey 
entitled "A Little History of Pork" in the National Municipal Review^ 
December, 1919, which describes clearly and accurately the historical deveJ- 
opment of "log-rolUng" and the "pork barrel." 

Taxation and Finance 373 

import duties the country is divided into customs districts, each 
having a port of entry and a set of officials, including the collector,' 
appraisers, special agents, inspectors, etc. The internal revenue 
and the revenue from the income taxes are under direct charge 
of the commissioner of internal revenue, appointed by the Presi- 
dent and Senate. For purposes of administration the country is 
divided into a large number of districts, each of which is in charge 
of a collector appointed by the President and the Senate. The 
collector has under him a corps of officers and agents, some en- 
gaged in the routine work and others acting as detectives to 
prevent frauds. 

The revenues of the United States in taxes, fees, postal charges, 
etc., are stored in Washington and in nine subtreasuries lo- 
cated at Baltimore, Boston, Chicago, Cincinnati, New Orleans, 
New York, Philadelphia, St. Louis, and San Francisco. 

"An act of Congress approved on March 3, 1917, directed 
the bureau of eflBiciency to investigate the work performed by 
the subtreasuries to determine what part of their work can be 
performed by the federal reserve banks or other government 
offices. The report submitted on January 28, 1918, recom- 
mended the immediate suspension of the subtreasuries in 
Baltimore, Philadelphia, and Cincinnati, the immediate release 
of the assistant treasurers in the six remaining subtreasuries, 
and the consolidation of the entire subtreasury system with 
the federal reserve banks within six months after the end of 
the war." ^ Action on this recommendation was delayed, 
although it was generally admitted that the subtreasury 
system, created in other days, was no longer necessary to the 
efficient administration of federal finances. At the beginning 
of 1920 the end of the system, or at least a radical curtailment 
of it, seemed to be in sight. It was openly said that nothing 
but inertia and patronage continued the existence of the sub- 
treasuries and that their abolition was only a question of time. 

The Secretary of the Treasury is, furthermore, authorized to 
put portions of the public funds into federal reserve banks, appor- 
tioning the funds among the regional banks largely at his 
own discretion. 

This power in the hands of the Secretary of the Treasury is 
an enormous one, for it allows him to give or withhold the aid of 
^ The American Year Book, 1918, p. 386. 

374 American Government and Politics 

the government in time of stringency. It was the regular policy of 
Secretary Shaw to come to the aid of the money market whenever 
a crisis was threatened, by distributing government funds among 
the banks whose surplus reserves had run low. In February of 
1906, $10,000,000 was transferred to national bank depositories 
of seven principal cities. This action faihng to bring relief, 
the Secretary offered to make additional deposits, on the basis of 
satisfactory security, equivalent to the amount of gold which the 
specified banks had engaged for importation, and as a result 
brought about $50,000,000 of foreign gold into the United States. 
Thus a large amount of government money was placed in circu- 
lation through the banks, foreign gold was secured, and the money 
stringency relaxed. In the panic of 1907, Secretary Cortelyou 
likewise came to the aid of the money market with federal funds. 
The advantage of this poHcy not only to the banks but to the 
borrowers of money is evident even to the superficial observer; 
but the intimate connection which it estabhshes between the 
government and private interests is obviously full of grave 

The Monetary System 

Under the Constitution, Congress has power to coin money 
and regulate its value and also to borrow money. It will be 
noted that Congress is not expressly authorized to issue paper 
money in any form. The Articles of Confederation gave the 
confederate congress the power to borrow money and emit bills on 
the credit of the United States; and in a draft of a constitution 
submitted to the convention of 1787 by Mr. Pinckney, it was 
proposed to continue this provision. However, on the motion of 
Gouverneur Morris, the phrase "emit bills on the credit of the 
United States" was struck out, after a considerable debate, in 
which the opinion was expressed that it would have a most salu- 
tary influence on the credit of the United States to remove even 
the possibiUty of paper money. Nevertheless, it is not absolutely 
certain that it was the intention of the f ramers of the Constitution 
to prevent the issue of paper money in any form, for Mr. Madison 
beHeved that the omission of the phrase relative to bills of credit 
did not deprive the government of the use of public notes "so far 
as they could be safe and proper." 

At all events, Congress, under the special financial stress of the 

Taxation and Finance 375 

Civil War, did authorize the issue of paper and declared it to be 
lawful money and legal tender for the payment of all debts, public 
and private, except duties on imports, demands against the United 
States, and interest payable in coin. The constitutionality of 
this law was speedily tested, and the Supreme Court of the 
United States held that an act making mere paper promises to 
pay legal tender in the discharge of debts previously contracted 
was not a means appropriate and necessary and really calculated 
to carry into effect any express power vested in Congress, and 
was inconsistent with the spirit of the Constitution and pro- 
hibited by that instrument.^ After a reorganization of the 
Supreme Court, the case was again submitted to that tribunal, 
and it was then held that the legal tender acts were constitutional 
as to contracts made before and after their passage by Congress — 
a strong argument, being based on the necessities of war time. 
Even this argument was cast aside later, when, in 1878, Congress 
passed an act that the Treasury should not retire or cancel legal 
tender notes on their redemption, but reissue them and keep 
them in circulation; and the measure was upheld by the Court.- 
As a result, it may be said that Congress may create legal tender 
notes whenever it may be deemed necessary. 

The power over the monetary system is virtually exclusive in 
Congress, for according to the express provision of the Constitu- 
tion no state can coin money, make anything but gold and silver 
coin of the United States a tender in the payment of debts, or 
emit bills of credit. A bill of credit has been defined by the Su- 
preme Court as a paper medium issued by a state on its own 
authority, designed to circulate between individuals and between 
the government and individuals for the ordinary purposes of 
society.^ This limitation, however, was later interpreted in 
such a way as to authorize the issue of paper money through a 
public corporation in which the state was the sole or principal 
stockholder, for the Court maintained that to constitute a bill 
of credit within the meaning of the federal Constitution it must 
be issued by the state, "on the credit of the state," and designed 
to circulate as money. 

Under this states' rights interpretation, the provision of the 

^ Hepburn v. Griswold, 8 Wallace, 603. 
^ JuilHard v. Greenman, no U. S. R., 421. 
3 Craig el al v. Missouri, 4 Peters, 410. 

376 American Government and Politics 

federal Constitution forbidding states to emit bills of credit was 
substantially annulled, and an enormous amount of state bank 
paper, often without a sound currency basis, was put into circu- 
lation, with what results every student of "the middle period" 
of our history is well acquainted. 

At length, in 1866, Congress determined to centralize the mone- 
tary control, and it accordingly passed an act imposing a tax of 
ten per cent annually on all state bank issues. The tax was up- 
held by the Supreme Court of the United States in the case of 
Veazie Bank v. Fenno, and thus the states were forced out of the 
paper money business.^ 

The money of the United States now falls into two groups: 
paper and coin. The former embraces United States notes or, 
as they are more popularly known. Civil War "greenbacks," 
which are in circulation under the redemption act which went 
into effect in 1879, placing them on a gold basis; treasury notes 
issued under the act of 1890 for the purchase of silver (now re- 
pealed); gold certificates issued whenever the reserve in the 
Treasury is above $100,000,000; silver certificates issued for 
the purchase of silver under the Bland- Allison bill of 1878 (now 
repealed) ; and Federal Reserve notes. The monetary system 
was put on a gold basis by act of Congress in 1900. 

The preparation of the paper money of the United States is 
in charge of the bureau of engraving and printing in the Depart- 
ment of the Treasury. The coins are made at three United 
States mints — Philadelphia, San Francisco, and New Orleans. 
In addition to the mints, federal assay offices are maintained at 
New York, St. Louis, Denver, Seattle, and a few other points 
where private persons may deposit gold and silver bullion and 
have its value determined by experts. 

From the early days of American history, the problem of cur- 
rency and banking has been almost continually before the coun- 
try and some of the greatest political battles, as for example in 
1832 and 1896, have been over this issue. One of the significant 
questions has been "How is it possible to adjust the amount of 
money in circulation to the demand for it in business and indus- 

^ It is impossible to give here even the most meagre outline of the long 
and complicated history of the American monetary system. For this, see 
the admirable work by Professor Dewey, Financial History of the United 

Taxation. and Finance 377 

try?'* Some contend that the work of issuing currency should 
be left entirely to the federal government, while others hold that 
it can be better done by private banking corporations in close 
touch with business requirements. Another question has been 
"How is it possible to prevent the bank deposits of the country 
from drifting to the great cities, particularly New York, and 
coming under the control of a few great banking concerns?" 

A serious attempt to solve some of the vexatious currency 
questions was made in the Federal Reserve Act of December, 
1913. The leading features of this measure were as follows: 

1. Provision for Federal Control. A Federal Reserve Board, 
Composed of the Secretary of the Treasury and the Comptroller 
of the Currency and five persons appointed by the President and 
Senate, was created to exercise general supervision over the entire 
banking system. The country was laid out into twelve great 
districts and in each is designated a Federal Reserve Bank, con- 
trolled by six directors chosen by the "member banks" and three 
appointed by the Federal Reserve Board. National banks were 
required, and certain state banks permitted, to join in the organ- 
ization and they are known as member banks sharing in the con- 
trol as above noted. 

2. The Issuance of Notes. The Federal Reserve Board is em- 
powered to issue Federal Reserve notes to the Reserve Banks to 
be put into general circulation. The money thus issued is based 
on certain securities held by the Reserve and member banks and 
is the lawful money of the United States. By this measure an 
attempt was made : (i) to secure federal control, (2) to give local 
banks a share in the management of the system, (3) to distribute 
"the money power" over a wide area, and (4) to provide for the 
expansion and contraction of the currency to meet business 

The general supervision of taxation and finance in all its 
branches is vested in the Secretary of the Treasury Department, 
who must scrutinize the annual collection and disbursement of 
hundreds of millions of dollars and account accurately for every 
penny of it — a huge bookkeeping undertaking. He must also 
master the theoretical and practical questions of finance, in 
order to make recommendations to Congress and to meet the 
demands of that body for expert advice; and he must secure 
a fair and impartial administration of the customs duties which 

378 American Government and Politics 

are irritating to importers at best and doubly irritating when 
administered in an irregular and arbitrary fashion. 

In addition to the functions connected with the collection and 
disbursements of public funds, the Treasury Department con- 
tains three very important agencies: (i) the farm loan board 
which administers the system estabhshed for making loans to 
farmers ; (2) the bureau of war risk insurance which administers 
allowances and allotments to soldiers and sailors and their de- 
pendents ; (3) the public health service which during the World 
War assumed responsibilities of a high order in helping to safe- 
guard the health of enlisted men, and also aided states and local- 
ities in improving the health standards. Through this branch of 
the administration the federal government is rendering invalu- 
able assistance to local agencies. 



The Power of Congress Judicially Interpreted 

Congress has power to regulate commerce with foreign 
nations, among the several states, and with the Indian tribes; 
and it may make all laws necessary and proper to carry this power 
into effect/ The term '' interstate commerce" has been inter- 
preted by a long Une of judicial decisions to include the carriage 
of passengers, the transportation of commodities, and the trans- 
mission of ideas, orders, and information by telephone or tele- 
graph from a point in one state to a point in another.^ In a word, 
it covers traffic and intercourse in its broadest sense regardless 
of the changes which time and mechanical ingenuity have wrought. 
It does not, however, include life, fire, and marine insurance or or- 
dinary contractual relations, even though the latter are incident 
to the conduct of interstate business. 

Notwithstanding the seeming clearness of this definition of the 
power of Congress over interstate commerce, it is very difficult to 
draw thie Une betweexi acts affecting commerce wholly within a 
state and acts affecting commerce between states.^ In general 
we may say, however, that the Supreme Court has upheld state 
legislation primarily designed for legitimate local purposes, al- 
though it may impinge at points on interstate traffic. 

Federal Control of Interstate Commerce 

The statutes now in force regulating interstate commerce may 
be classified into three groups: (i) those controlHng railways and 
common carriers; (2) those designed to prevent trusts and 

* This power is subject to the limitation that Congress cannot lay duties 
on exports from any state, give preference to the ports of one commonwealth 
over those of another, or compel vessels bound from one state to another to 
enter, clear, or pay duties in any state. 

^ For the constitutional provisions and an important illustrative case, see 
Readings, p. 343. 

^ For an illustrative case, see Readings^ p. 348. See below, chap. xxii. 


380 American Government and Politics 

combinations in restraint of trade; and (3) those aimed at miscel 
laneous objects, such as the pure food law and the law imposing 
HabiHty on railway corporations for injuries to their employees. 

In the beginning of the railway era in the United States, Con- 
gress made no attempt to devise a large and far-sighted plan of 
pubHc control, but negUgently devoted its attention to granting 
generous favors to railway corporations. As a result all early 
railway legislation deals with grants of pubUc lands, concessions 
of "rights of way," the remission of duties on railway materials 
imported from abroad, and kindred measures favoring a rapid 
development of the railway system. 

There was practically no agitation for regulation in the interest 
of the public until the close of the Civil War. In 1868, the 
House committee on roads and canals reported that Congress 
had power to regulate interstate railways, secure the safety of 
travellers, and prescribe uniform and equitable rates and adequate 
connections; but the House failed to act. Again, in 1872, on a 
recommendation embodied in the President's message, a Senate 
committee devised a comprehensive plan for regulating railways, 
but there was no practical outcome. In and out of Congress, 
however, railway regulation had become the subject of earnest 
discussion. The connection of many Congressmen with great 
railway interests was notorious, and it was believed, with good 
reason, that railway corporations were bu^dng support in the 
national legislature. 

At length, in 1885, when it was apparent that the demand for 
reform could be no longer disregarded, the Senate appointed a 
committee which conducted a long investigation into the opera- 
tion of railways throughout the United States and made a pres- 
entation of such notorious abuses that Congress was compelled 
to act.^ The result was the law of 1887, creating an Interstate 
Commerce Commission and providing certain regulations for 
common carriers. 

This original act, the amendatory and supplementary acts, 
the decisions of the courts, and the orders and decisions of the 
Commission now constitute a formidable body of federal law, and 
it is impossible to give here more than a brief statement of the 
general principles.^ 

^ For an extract from this Report, see Readings, p. 352. 
' Consult Judson, The Law of Interstate Commerce. 

The Regulation of Commerce 381 

The administration of the law is placed in the hands of an 
Interstate Commerce Commission which is entirely separate 
from the Department of Commerce. This commission consists 
of eleven members appointed by the President and Senate and 
paid a salary of $12,000 each. 

The Act to Regulate Commerce, as the law is called, applies to 
corporations and persons carrying oil or other commodities, 
except water and gas, by means of pipe lines, or transporting 
passengers or property by railway or by rail and water from 
one state or territory into another state or territory, or from one 
place in any territory to another place within the same territory, 
or from any place in the United States to a foreign country.^ 

A large number of restraints are laid upon the carriers and cor- 
porations to whom the Act applies. All charges for services in 
connection with transportation of passengers or property must 
be just and reasonable; no common carrier can grant free passes 
or free transportation except to certain specified persons and in- 
stitutions; and railroad companies are forbidden to transport 
commodities in which they have a direct property interest, ex- 
cept timber and its products. Common carriers must construct 
switches and make connections with lateral and branch lines of 
railways. They cannot grant rebates, drawbacks, and special 
rates, thus discriminating and making lower charges to some 
persons than to others for similar services; they cannot give any 
undue or unreasonable preference or advantage to any particular 
person, company, corporation or locality; and they are forbidden 
to make arrangements for pooling freights of different and com- 
peting railways, or for dividing among themselves the net proceeds 
of the earnings of such roads. They must print and keep open 
for public inspection schedules showing rates, fares, and charges 
for transportation, and no change can be made in the rates, fares, 
and charges so published except after thirty days' notice to the 
Interstate Commerce Commission. Finally they must also ren- 
der full and complete annual reports to the Commission in the 
manner prescribed by that body; and there is now established 

* The Act does not apply to the transportation of passengers or property 
or to receiving, deliver}'-, storage or handling of property wholly within one 
state. The Elk ins law of February 19, 1903, prohibits rebating and allows 
proceedings in the courts by injunction to restrain common carriers from 
departing from the published rates. 

382 American Government and Politics 

one uniform system of railway accounting throughout the United 

Certain specific powers and duties are vested in the Interstate 
Commerce Commission by law. The Commission is required to 
investigate the manner in which business is conducted by those 
carriers to whom the law appUes; and on the request of the 
Commission any district attorney of the United States must prose- 
cute, in the proper court, offenders against the law. The Com- 
mission is empowered to summon witnesses and compel the pro- 
duction of books, papers, and other documents relating to any 
matter under investigation. Any person, corporation, body 
politic, or municipal organization complaining of anything done 
or omitted to be done by any common carrier, contrary to the 
provision of the law, may apply to the Commission by a petition 
stating the facts, and the Commission must thereupon make an 
investigation into the alleged violations. The Commission is 
empowered, after full hearing upon such a complaint or upon 
complaint of any common carrier, to determine and prescribe 
just and reasonable maximum rates and charges, as well as just and 
reasonable regulations and practices. The Commission may fur- 
thermore award damages to persons injured by a violation of the 
law on the part of any common carrier. 

After a long agitation of the subject Congress enacted a law 
(approved March 1,1913) providing for the "physical valuation " 
of the property of the railways coming under the provisions of 
the interstate commerce act. 

The railway question entered a new phase during the admin- 
istrations of President Wilson. In December, 191 7, the rail- 
ways were taken under governmental control by presidential 
proclamation, and by an act (March, 191 8) Congress provided 
the terms of government operation. ^ 

Early in 1920, the railways were returned to their owners by 
an act of Congress embracing the following outstanding features : 
(i) provisions for federal loans to railways, (2) the creation of 
a labor board consisting of nine members — three from the rail- 
ways, three from the employees, and three from the public — 
empowered to deal with labor disputes ; (3) the enlargement of 
the Interstate Commerce Commission to eleven members : and 
(4) a practical guarantee to the companies of a return of 51 
per cent on their properties for two years. 

The Regulation of Commerce 383 

In the meanwhile the government is also endeavoring to control 
the great trusts and corporations engaged in interstate business. 
The way in which one industry after another has been absorbed 
by corporations, national and even international in the extent of 
their operations, is a matter of recent and familiar history. 
All great staple industries are now consolidated; and everywhere 
competition is being stifled by the combination of competing con- 
cerns. Moreover the control over the bank deposits throughout 
the whole United States is tending Ukewise to centraHze in the 
hands of large financial institutions which work in conjunction 
with the business organizations. 

In the very beginning of this revolution there were a few states- 
men who saw that the arm of the government must be used in 
some way to check and control the men in whose hands this enor- 
mous power over capital, commerce, and industry was concen- 
trating; but it can hardly be said that there has been any general 
agreement either as to the temporary or final nature of that con- 
trol. A protest against the inaction of the federal government 
in the face of this great economic centralization was made by the 
radical minor parties shortly after the Civil War; and they grew 
more insistent as time advanced. At length, in 1890, Congress 
passed a law designed 'Ho protect trade and commerce against 
unlawful restraint and monopoHes," — the famous Sherman 
Anti-trust Act.^ By this law, it w^as provided that every con- 
tract, combination, in the form of a trust or otherwise, or conspir- 
acy in restraint of trade or commerce among the several states 
and territories and with foreign nations was illegal; and appropri^ 
ate penalties were prescribed for violations. Under the interpre- 
tation of the Supreme Court, the law was at first held to forbid all 
combinations among common carriers in restraint of trade, 
whether reasonable or unreasonable; but in the Standard Oil 
and Tobacco Trust cases in 191 1 the Court laid down the rule 
that only those combinations which "unduly" restrained trade 
violated the law. 

It must be noted, however, that under the law, corporations or 
trusts, as such, cannot be regulated ; they must be engaged in 
interstate or foreign commerce in order to come within the terms 
of the act. In the Sugar Trust case,'^ for example, the Court held 

1 This Act is in the Readings, p, 358. 

2 United States v. E. C. Knight Co., 156 U. S. R., i. 

384 American Government and Politics 

that the Anti-trust law did not control a great sugar company 
which had secured practically a monopoly of the manufacture of 
sugar in the United States by purchasing the stock of the 
various refining companies. The ground of the opinion was that 
the monopolies forbidden by the law were those actually involving 
interstate or foreign commerce, not those simply controlUng the 
manufacture of commodities, even though such commodities after- 
ward entered interstate and foreign traffic. 

Where, however, a number of companies, engaged in the manu- 
facture of some article, form an organization, divide the territory 
of the United States among themselves for the sale of that article, 
and suppress competition, the Act appUes. The Court has also 
held on the same ground that, when the direct, immediate, and 
intended effect of a contract or combination among dealers in a 
commodity is the enhancement of prices and suppression of com- 
petition, it is a restraint in that commodity.^ 

The Sherman Act likewise applied to trade unions whose 
operations affect interstate commerce, as well as to other com- 
binations. For example, in the case of Loewe v. Lawlor the 
Court held that when a labor organization, by the use of labels 
and notices in labor papers and other means, boycotts a manu- 
facturing concern doing a large interstate business, the said or- 
ganization becomes a combination in restraint of trade and 
is liable to the penalties of the Anti-trust Act.^ In spite of 
the formidable appearance of the Sherman law, its effect in 
checking the formation of trusts and combinations was very 

During the opening years of the twentieth century there came 
a clearer understanding of the nature of our economic develop- 
ment, and the undiscriminating criticism of all corporations was 
replaced by saner views based upon the recognition of the fact 
that the era of small competing business concerns is at an end. 
Nevertheless, there still is a large variety of opinions as to the 
fundamental nature and tendency of our economic development. 
Only relatively few men in public life to-day assume the attitude 
of the past generation that trusts and corporations, as such, 
should be broken up. A large number of publicists would dis- 
criminate between what they are pleased to call "good" and 

^ Addyston Pipe and Steel Co. v. United States, 175 U. S. R., 211. 
2208U. S. R., 274. 

The Regulation of Commerce 385 

''bad" trusts, placing in the former category those business con- 
cerns which do not attempt complete monopolies and unreason- 
able enhancement of prices and in the latter category those 
corporations which are constantly violating the law and endeav- 
oring to create monopolies. Finally there are the sociahsts, 
who contend that monopoly is the inevitable result of competi- 
tion, that competition is a crude and wasteful method of doing 
business, and that the ultimate outcome will be the assumption 
of the ownership of the great monopolies by the government. 
At all events there is, at the present time, a decided movement 
away from the old bUnd hostiUty to corporations, in the direction 
of some form of government regulation. In this movement, 
Mr. Roosevelt took a prominent part. When governor of 
New York, he said in a message to the legislature : " Much of the 
legislation, not only proposed but enacted against trusts, is not 
one whit more intelligent than the mediaeval Bull against a comet, 
and has not been one particle more effective." As President, 
he said in his annual message to Congress in 1905 : " It is generally 
useless to try to stop all restraint on competition, whether this 
restraint be reasonable or unreasonable ; and when it is not useless, 
it is generally hurtful." In his Report of 1908, the commissioner 
of corporations declared: "There is an irresistible movement 
toward concentration in business. We must definitely recognize 
this as an inevitable economic law. We must also recognize the 
fact that industrial concentration is already largely accomplished 
in spite of general statutor\^ prohibition. Recognizing these 
facts, the aim of new legislation should be to regulate rather than 
to prohibit combination. . . . Our present law forbidding all 
combination, therefore, needs adaptation to the actual facts." ^ 

During President Wilson's administrations there were enacted 
a number of important laws dealing with trusts, commerce, and 
labor : 

I. Clayton Anti-trust Law of 1914. This measure was de- 
signed in part to make the provisions of the Sherman law more 
drastic and sharper. It also attempted to tear corporations 
apart by forbidding interlocking directorates, devices by which 
the same persons acting as directors of several concerns can 
really consolidate their policies without actually uniting the 

^ Report of the Department of Commerce- and Lobar (1908), p. 306. 

386 American Government and Politics 

2. Exemption of trade unions from the provision of the anti- 
trust law. This was accompHshed by the above act. 

3. The federal trade commission (1914). By law Congress 
swept away the old bureau of corporations and created a com- 
mission of five members with full power to investigate the books, 
papers, and operations of all corporations engaged in interstate 
business. The act declared "unfair methods of competition" 
to be unlawful and authorized the commission to prevent cor- 
porations from using such methods. 

4. The Webb law (April 10, 1918) authorized the formation 
of combinations for foreign trade purposes. It provides that 
the anti-trust legislation shall not be construed as "declaring 
illegal an association entered into for the sole purpose of engag- 
ing in the export trade ... or an agreement made or act 
done in the course of export trade by such an association, 
provided such association, agreement, or act is not in re- 
straint of the export trade of any competitor of such associa- 

5. The Shipping Act (19 16). This measure created the 
United States shipping board "for the purpose of encouraging 
and developing a merchant marine and a naval auxiliary and for 
the regulation of shipping." 

6. The Adamson law (19 16) fixing an eight hour day for train- 
men on railways in interstate commerce. 

7. The child labor law of 1916. This measure excluded from 
interstate commerce" goods made by children under the age limit 
fixed by the law. This measure came before the Supreme Court 
of the United States in the case of Hammer v. Dagenhart, 247 
U. S. 251, in 19 18 and was declared unconstitutional by vote of 
five to four judges. The court held that the child labor law was 
not really a regulation of interstate commerce but a regulation 
of the conditions of manufacturing within the states. It was 
also contended by the court that the law usurped powers reserved 
to the states by the Tenth Amendment to the Constitution and 
would deprive citizens of their property without due process of 
law as provided in the Fifth Amendment. An attempt was 
then made to prevent child labor by federal act (Revenue Act of 
19 18) through the exercise of the taxing power — heavily taxing 
the profits of companies using child labor — thus indirectly 
accomplishing the same result. 

The Regulation of Commerce 38J 

Foreign Commerce — Immigration 

Under the general power to regulate commerce, Congress en- 
joys full authority over the admission of immigrants to the 
United States. For a long time, the principal object of our im- 
migration laws was to encourage the coming of foreigners to our 
country; but witliin recent years several attempts have been 
made, not so much to check immigration, as to eliminate the 
more undesirable elements, such as those afflicted with dangerous 
contagious diseases, criminals, paupers, and other persons likely 
to become public charges. 

The immigration law of the United States now makes pro- 
vision for the exclusion of three types of aliens: (i) the generally 
undesirable; (2) contract laborers; and (3) the Chinese and other 

The first group embraces idiots, feeble-minded persons, epilep- 
tics, paupers, persons Ukely to become pubUc charges, professional 
beggars, persons affected with tuberculosis or loathsome or dan- 
gerous contagious diseases, criminals, polygamists, anarchists, and 
prostitutes. It especially provided, however, that foreigners, who 
have been convicted of purely poHtical offences not involving moral 
turpitude, will not be excluded if they are otherwise admissible. 

The law also excludes contract laborers, that is, persons who 
have been induced to migrate to this country by offers or promises 
of employment or in consequence of an agreement to perform 
labor of any kind, skilled or unskilled.^ The law provides, 
however, that skilled laborers may be imported, if unemployed 
laborers of hke kind cannot be found in the country. 

The third group of ahens to whom admission is denied are 
excluded under a series of treaties and agreements with China 
and Japan and laws of Congress enacted especially on demand of 
the working classes and the inhabitants of the states on the Pacific 
Coast. ^ According to the terms of these laws, rules, and treaties, 
all Chinese are excluded, except teachers, students, travellers 

' It is a misdemeanor for any person or concern to assist or encourage the 
migration of such laborers into the United States. Actors, singers, and 
professional classes are not included in this group. 

^ There is no special law or treaty excluding Koreans or Japanese laborers 
from the United States; but the Japanese government, by arrangement 
with the federal authorities, is supposed to control the emigration of its 

j88 American Government and Politics 

for curiosity or pleasure, merchants and their lawful wives and 
minor children, officials of the Chinese government and their 
servants, and certain other classes. To prevent violations of the 
law, provision is made for authorizing and registering the ad- 
mission of Chinese who fall within these groups. The administra- 
tion of the law, including the right to admit and exclude in 
accordance with the regulations, is vested in the immigration 
authorities, with an appeal to the commissioner-general of im- 
migration at Washington; and the decision of these administra- 
tive officers with regard to the facts in any case is not subject to 
judicial review.* 

The cost of administering the immigration laws is partially 
met by a small tax levied on every alien entering the United 
States.^ Every immigrant is required to state whether married 
or single, whether able to read or write, whether in possession of 
$50, or if less, how much, whether intending to join a relative 
or friend, and if so, when and where, and to give his nationality, 
race, caUing, or occupation, last residence, and final destination, — 
in addition to answering a number of other questions. Thus, 
a complete record of each immigrant is secured, in order that the 
government may keep a close scrutiny over the persons whom it 
admits. The government has furthermore instituted a searching 
medical examination. Each immigrant is examined by an in- 
spector for mental diseases, then by an inspector for internal dis- 
eases, and finally by an inspector of diseases of the eye. 

After running the gauntlet of the medical inspectors, the immi- 
grant is then closely questioned by a general inspector with regard 

laborers to the United States by refusing to issue passports to them. Under 
an act of Congress, approved February 20, 1907, whenever the President is 
satisfied that passports, issued by any foreign government to its citizens 
authorizing them to go to other countries than the United States, are really 
being used for the purpose of enabling the holders to enter the continental 
territory of the United States to the detriment of labor conditions therein, 
it is his duty to refuse admission to the citizens of the country issuing such 
passports. By virtue of the authority of this act, President Roosevelt, in 
March, 1907, issued an order that Japanese or Korean laborers, skilled and 
unskilled, who have received passports to Mexico, Canada, or Hawaii and 
attempt to enter the United States, should be excluded from our continental 

^ See Readings, p. 202. 

' Of course persons in transit through the United States and diplomatic 
officers are not taxed. 

The Regulation of Commerce 389 

to his desirability as an inhabitant of the United States. "The 
modus operandi at all government stations," says the former New 
York commissioner, Mr. Wach thorn, "is to place every individual 
applicant for admission to these shores on the defensive and to 
make it incumbent upon him ... to show why he should be 
admitted; but to do it in a humane spirit and treat each appUcant 
with becoming consideration, without for a moment losing sight 
of the object that Congress had in view in limiting admission to 
these shores to those who are sound in body and mind and who are 
without question Hkely to find support without depending in 
whole or in part on pubhc or private charity." 

Aliens whom the examining inspector is doubtful about ad- 
mitting are held for examination before a board of special inquiry 
at each port charged with hearing and deciding such cases. An 
appeal from an adverse decision of the board may be carried ' 
through the commissioner of the port and the commissioner- 
general of immigration to the Secretary of Labor. Excluded 
aliens must be returned to their homes by the steamship com- 
panies which brought them. 

The general supervision of the whole system of immigration is 
vested in the commissioner-general of immigration in the Depart- 
ment of Labor. He may establish rules, prescribe forms of 
reports, entries, and other papers, and he may issue orders and 
instructions not inconsistent -with the law, which he may deem 
useful in carrying out the provisions of the immigration act 
and in protecting aliens from fraud and loss. It is his duty, 
from time to time, to detail officers from the immigration service 
to make investigations of the number of aliens detained in penal, 
reformatory, and charitable institutions throughout the United 
States and to look after the deportation of aliens who have be- 
come public charges. At each port of entry, there is a commis- 
sioner of immigration who has under him a staff of inspectors and 
other officials. 

The power of the Immigration Commissioner to deport aliens ' 
is broad and sweeping in its scope. In 191 8, Congress added 
to his authority by providing for the expulsion of alien revolu- 
tionists, anarchists, advocates of sabotage, violence, and assas- 
sination, and those aliens who aided and abetted them. His 
decision on the facts in any case is final (unless reversed of course 
by his chief, the Secretary of Labor), and the burden of proof 

390 American Government and Politics 

is upon the alien arrested and held for deportation to show that 
he is not in the United States in violation of the law. The 
courts will not go behind the findings of the immigration authori- 
ties as to the facts constituting the charge against the alien. 

The fear of a flood of immigrants from Europe on the close 
of the Great War led Congress, powerfully influenced by the 
American Federation of Labor, to enact in 191 7, over the veto 
of the President, an immigration bill providing a ''literacy test" 
for immigrants. The law excludes all aliens over sixteen years 
of age, physically capable of reading, who cannot read the Eng- 
lish language or some other language or dialect, including Hebrew 
or Yiddish. There were a few saving clauses with exemptions, 
but the bar was on the whole very rigid. This measure strictly 
applied will exclude from the country a large volume of unskilled 
workmen and reduce the competition with American labor. 

Foreign Commerce — Tariff 

The history of tariff legislation runs back to the revenue act 
passed by the first federal Congress of 1789, for that law, in im- 
posing duties on foreign goods coming into the United States, 
contained some protective features. Washington in his message 
of January, 1 790, recommended the promotion of such industries 
as would make the United States ''independent of others for 
essential, particularly for military supplies," and Hamilton in his 
famous Report of the following year declared that the real inter- 
ests of the country, in his opinion, would be advanced rather than 
injured by "the due encouragement of manufactures." This 
notion steadily gained ground, especially because the country 
was practically dependent upon England for manufactured goods. 

The War of 18 12 gave a great impetus to this demand for an 
increased protection of American industries in order to give them 
a start against European competition and to make the nation 
economically independent. During the war, American manu- 
facturers, freed for a time from EngUsh competition, leaped 
forward with remarkable strides, and when peace was restored 
they asked for continued protection, especially for the estabhsh- 
ments which they had set up. The tariff bill of 18 16 was placed 
upon a broad nationahst basis. Mr. Calhoun declared that en- 
couragement to American manufacture was "a sound national, 
^ Report of the Secretary of Commerce mid Labor (1908), p. 10. 

The Regulation of Commerce 391 

truly American policy." Mr. Clay urged: "The object of pro- 
tecting manufactures was that we might eventually get articles 
of necessity made as cheap at home as they could be imported, 
and thereby produce an independence of foreign countries." 

For a time, this protectionist poHcy was regarded as a tempo- 
rary makeshift to give our "infant industries" a start with a view 
to enabling them ultimately to meet European competition in 
a fair open contest. However, this idea was slowly abandoned 
in the North as the protected interests came to be a powerful 
factor in determining revenue policies; but in the South the 
tariff continued to be stoutly resisted until long after the Civil 
War on the ground that it merely enriched the northern manu- 
facturing states at the expense of the states which produced 
cotton and raw materials — that is, made the latter pay high 
duties on manufactured goods purchased in exchange for the raw 
materials sold in foreign markets. 

The RepubUcan party in the campaign of i860 declared unequiv- 
ocally for the protection of American industries,^ and after the 
outbreak of Civil War the government was forced to fix high tariff 
duties in order to raise revenues — and thus a combination of 
circumstances led to the adoption of the highest tariff rates which 
had yet been made. This policy was continued, however, with 
some sHght modifications ^ after the war, and in 1890 a still higher 
rate was provided by the McKinley bill, — a rate which proved 
to be so high that it produced a reaction throughout the country 
that resulted in a restoration of the Democratic party to power. 
The Democrats at once set to work on a new tariff bill, but they 
were unable to agree on any very drastic reductions, except in the 
duties on wool, so that their tariff measure of 1894 (the Wilson 
bill) cannot be regarded as a serious departure from the protec- 
tionist policy. Moreover, it failed to produce revenues as expected, 
and when the Republicans were returned in 1897, they revised the 
tariff again by the Dingley bill, which was in many respects an 
advance in rates over the McKinley measure. This law remained 
in force until 1909, when the Republicans at a special session made 
another general revision without adopting any striking reductions.^ 

* Readings, p. 99. 

^ Note especially the revisions of 1870, 1872, and 1883. 
■■' For the general character of a tariff bill, see Readings, p. 337. The tariff 
act of 1909 provided that an additional duty of 25 per cent ad valorem might 

392 American Government and Politics 

During the passage of this bill it became evident that there was 
no very distinct line of division between the Republicans and the 
Democrats on the tariff , for the latter on particular matters affect- 
ing their several localities were as strongly protectionist as the 
former. Indeed, the cleavage was within the Republican party, 
for a number of Republicans, especially from the Middle West, 
refused to vote for the bill in its final form. 

Discontent with the tariff of 1909 was immediate and wide- 
spread, and at the election of the following year the Democrats 
captured the House of Representatives largely on a tariff reform 
programme. The election of 191 2 gave the Democrats the presi- 
dency as well as both houses of Congress and at an extra session 
in 19 1 3 they enacted a tariff law which made substantial reduc- 
tions and greatly increased the free list. 

In connection with federal control over commerce, it should be 
noted that foreign commerce may also be regulated by the Presi- 
dent and the Senate under their treaty-making power. They 
might, for instance, arrange with a foreign country a treaty waiv- 
ing some of the provision of the tariff act, or adding to the terms 
of the immigration law. There is no doubt that a treaty, duly 
ratified, is as much a part of the law of the land as is a statute, 
and, as the later expression of the lawgiver always replaces any 
preceding law that is inconsistent or repugnant, there is no doubt 
that a treaty affecting foreign commerce would supersede any 
preceding act of a Congress, in so far as there might be a conflict. 

Departments of Commerce and Labor 

Notwithstanding the amount and variety of federal legislation 
relative to commercial and industrial matters, it was not until 
1903 that a separate Department of Commerce and Labor was 
created by the consolidation and reorganization of several 
bureaus and offices, including the bureau of labor. Organized 
labor was, however, not contented with this recognition and 

be imposed upon certain imports at the discretion of the President, thus 
putting it in his power to meet discriminations on the part of foreign coun- 
tries. To assist the President in securing information with regard to this 
and other matters intrusted to his care, a board of three members was 
instituted. In 1916 Congress created a tariff commission of six members 
charged with the duty of making investigations and reports on the cost of 
production and recommendations for the revision of tariff schedules. 

The Regulation of Commerce 393 

in 19 13 secured the establishment of a Labor Depart- 

The Department of Commerce embraces a number of impor- 
tant bureaus. The bureau of the census has charge of the decen- 
nial census and owing to the extensive operations now included 
in that huge undertaking has a large permanent force engaged 
on statistical and related problems. The bureau of standards 
has the custody of the standards of measurement used in science 
and industry and is charged with the duty of constant study 
in that field. The bureau of foreign and domestic commerce 
collects statistics on foreign trade and studies the best methods 
to promote the foreign commerce of the 'United States; it 
collects and translates the tariff laws of other countries, pub- 
lishes the reports of American consuls on commercial and other 
matters, and issues periodical reports on trade. It is further- 
more "charged with the duty of making investigations into 
the various elements of cost of production at home and abroad 
in respect to articles subject to duty, comparative wages and 
cost of hving, degree of control by business combinations and 
effect on prices, when required to do so by the President or either 
house of Congress." ^ 

To the newly created Department of Labor, the bureaus of 
immigration, naturalization, and labor statistics, and also the 
children's bureau, were transferred. The duties of this Depart- 
ment comprise among other things "the gathering and publica- 
tion of information regarding labor interests and labor contro- 
versies in this and other countries; the supervision of the 
administration of the act of Congress providing for the payment 
of compensation to artisans or laborers of the United States 
injured in the course of their employment; the supervision of 
the immigration of aliens, and the enforcement of the laws 
relating thereto and to the exclusion of Chinese ; the direction 
of the administration of the naturalization laws ; the direction 
of the work of investigating all matters pertaining to the welfare 
of chilaren." The Secretary of Labor may act as mediator in 
industrial disputes or appoint commissioners of concihation 
"whenever in his judgment the interests of industrial peace 
require it to be done." 

^ The Department of Commerce includes also the bureaus of lighthouses, 
fisheries, and navigation, the coast and geodetic survey, and the steamboat 
inspection service. 

394 American Government and Politics 

The National Postal Service^ 

Post-offices and post-roads and the transmission of mail may 
be properly considered in relation to the power of the federal gov- 
ernment to control interstate commerce, although a special war- 
rant for this branch of administration is contained in a separate 
clause of the Constitution. Under the Articles of Confederation, 
Congress merely had the power to estabUsh and regulate the pos- 
tal business from one state to another; but in order to facilitate 
the increase of intercourse throughout the nation, the power of 
managing not only the interstate mails, but the transmission of 
all mail matter whatsoever, was vested in Congress. 

Those who hold to a strict interpretation of the Constitution 
contend that the power to establish post-offices and post-roads 
means only the right to direct where post-offices shall be main- 
tained and on what roads mails shall be carried; but in practice, 
it has been shown that the power includes the right to construct 
buildings; and Story declares that there is no reason why Con- 
gress could not build and operate roads for the purpose of trans- 
mitting mails. *'If it be the right and duty of Congress," he 
asks, "to provide adequate means for the transportation of the 
mails wherever the public good requires it, what limit is there to 
these means other than that they are appropriate to the end ?"" 
Professor Burgess, on the other hand, holds that it is not settled 
■aw that the government may build, buy, and own railroads, or 
make the telegraph business a governmental monopoly. 

The transmission of mail matter is exclusively vested in the 
federal government — that is, Congress can prohibit its carriage 
by private companies. The question as to what can be properly 

1 Congress had full power to regulate commerce with the Indians, but 
until 1 87 1 it was the policy to deal with them as tribes by means of treaties. 
Since that year federal relations with the Indians have been conducted by 
the President and Congress through agreements and contracts. Those 
Indians who have left their tribes and settled down like white inhabitants 
are recognized as citizens, but those who remain with their people are not 
citizens. The total Indian population according to the census of 1900 was 
266,760, a decrease of over 6000 since 1890. The figures of 1908, however, 
show an increase to 300,412. Most of these Indians reside in reservations, 
of which there are about 140. Supervision of the Indians is vested in 
the bureau of Indian affairs in the Department of the Interior. 

2 Commentaries, Vol. II, sec. 1141, 

The Regulation of Commerce 395 

regarded as mail matter has been answered by the Supreme 
Court to the effect that it is Hmited to letters, papers, and other 
things which were commonly reckoned as mail at the time when 
the Constitution was framed.^ Under this power to regulate 
the transmission of mail matter. Congress may exclude from the 
mails obscene, lewd, and lascivious literature or matter relating 
to lotteries,- but it cannot prohibit the carriage, by private com- 
panies, of any matter which it may so exclude.^ 

Under this general power to estabHsh post-offices and post- 
roads, the federal government has built up a vast and complicated 
system. We began in 1789 with 75 post-offices, or one for every 
50,000 persons in round numbers, and at the close of the nine- 
teenth century there were more than 70,000 post-offices,^ or one 
for about every 1000 inhabitants. The postal charges in 1792 
ranged from six cents for a single sheet transmitted thirty miles 
to twenty-five cents for the same carried more than 450 miles. 
To-day an ordinary letter may be sent from Maine to Manila or 
from San Francisco to London or Berhn for two cents.^ In the 
first year of its existence under the Constitution, the Post-Office 
Department received $37,000 and expended $32,000; in a little 
more than one hundred years the postal receipts and expendi- 
tures amounted to more than $200,000,000. Not being a profit- 
making but a public service agency its expenses often exceed 
its income. 

The post-office not only carries letters, papers, post-cards, and 
parcels limited in size ; it transmits money also. The registry 
service was established by Congress in 1855 ; and it is now pos- 
sible for any one, by the payment of ten cents in addition to the 
regular postage, to secure the registration of a letter at every 
point in its journey, a return receipt from the person to whom it 
is sent, and an insurance up to the value of $50 — a system prac- 
tically guaranteeing the proper delivery. In 1864, Congress es- 
tablished post-office money orders, by which payment to the ad- 
dressee at the other end of the line is absolutely guaranteed and 
practically every possibility of loss obviated. 

1 Ex parte Jackson, 96 U. S. R., 727. ^ /„ ^q Rapier, 143 U. S. R., no. 
3 Except, of course, so far as interstate commerce is concerned ; but here a 
question as to freedom of the press might arise. 

^ Post-offices are graded into classes on a basis of receipts. 
^The one-cent post-card was introduced in 1872. 

396 American Government and Politics 

In order to encourage the establishment of newspapers 
and their circulation among the people, Congress from the 
foundation of the government made especially low rates for the 
transmission of printed matter. For a long time a bulk rate 
of one cent a pound was charged for periodicals entered at the 
post-office as second-class matter, a rate which, it was claimed, 
was far below the actual cost of the service rendered and re- 
sponsible for the large deficits which frequently occurred in 
postal finances. An agitation therefore arose in favor of an 
increase in the postal rates on newspapers and periodicals, but 
naturally it was vigorously opposed by publishers. It was 
alleged that the cost of transportation was excessively high 
on account of the unbusinesslike contracts which the govern- 
ment made with the railways. 

The contest over increased rates for newspapers and periodi- 
cals culminated in 191 7 in an amendment to the War Revenue 
Act raising the second-class mail charges. This law contained 
three significant provisions : (i) it increases the rates on second- 
class publications by a gradual process until by 192 1 they are 
to range from two to ten cents per pound; (2) it bases the 
carriage of second-class mail on the zone system prevailing in 
the parcels post division, varying the rate according to the 
zone; (3) it lays a special postage rate on periodicals on the 
basis of the advertising carried when the advertisements exceed 
five per cent of the paper. Special rates are fixed for religious 
and educational publications not conducted for profit. 

This measure while under consideration in Congress was 
sharply attacked on behalf of newspapers and periodicals. It 
was urged that it was a violation of the ancient American tradi- 
tion of a free press as the bulwark of our liberties, and main- 
tained that an increase would not be necessary if the post-office 
were efficiently conducted. Perhaps the most powerful argu- 
ment was to the effect that the zone system would curtail the 
national circulation of national magazines and thus tend to the 
cultivation of localism and provincialism. All of the criticism 
was frankly faced by Mr. Kitchin, chairman of the ways and 
means committee in charge of the bill He characterized the 
plea that cheap newspapers and magazines spread education 
as ''hypocritical," adding: ''If it is to educate the people, why 
is it that they charge from five to eight times as much to send a 

The Regulation of Commerce 397 

little Webster spelling book or a dictionary or a grammar or 
geography to the little school children throughout the United 
States? Is that not for the spread of intelligence?" 

The development of free delivery has been one of the most 
remarkable features in the evolution of our postal system. In 
1863 it was established in all cities having at least 50,000 inhabit- 
ants, and it is now extended to cities having 10,000 inhabit- 
ants and in some cases even a much smaller population. In 
1885 a system was introduced by which immediate "special" 
delivery on receipt at the post-office of the addressee can be 
secured by the payment of ten cents, in addition to the postage. 

A third branch of postal delivery has now been instituted for 
country districts. This "rural free delivery service" began 
experimentally in 1897 with an appropriation of $40,000 and the 
establishment of forty-four routes. The expenditure for the 
fiscal year, ending June 30, 1897, was only $14,840, but within 
ten years the amount was more than $34,000,000, and there 
were in operation in that year 39,516 routes, distributing nearly 
two billion pieces of mail to more than 18,000,000 people residing 
in rural districts. 

The incidental effects of this rural service have been of great 
importance, for, in addition to relieving the tedium and isolation 
of country life, it is a powerful factor in the improvement of public 
roads. The Post-Office Department is steadily insisting that the 
routes covered by rural delivery shall be maintained in good con- 
dition throughout all the seasons of the year, and in response to 
this pressure, state legislatures are increasing their appropria- 
tions for the building and improvement of highways. 

Although Congress had early provided for the sending of books 
and small parcels of merchandise by mail, the restrictions were 
so narrow and the rates so high as to lead to a demand for the 
establishment of a special system, a "parcels post." This 
reform was long resisted by the express companies and by country 
merchants who feared that such a system of cheap transporta- 
tion would enable the great department stores in the cities to 
undersell them. It was not until August, 191 2, that Congress 
was induced to establish a domestic parcels post system. The 
law, which went into effect in January, 1 913, fixed the weight and 
size of articles which might be carried, named the classes of goods 

1 Reinsch, Readings, p. 385. 

398 American Government and Politics 

which could be accepted at the post-ofl&ces under the law, and 
provided for laying the country out into zones and the establish- 
ment of specified rates according to distance and weight. 
Although the system thus set up was cumbersome and in many 
ways narrower in its range than the parcels post of other coun- 
tries, it was regarded as a considerable achievement and the 
beginning of an extensive public transportation system. 

Another function generally performed by the post-office in 
foreign countries is that of acting as a savings bank receiving 
deposits of money up to a certain amount and paying interest 
thereon. In order to encourage thrift and secure absolute 
safety for the savings of the small depositors, it was proposed 
several years ago to establish such a postal institution in the 
United States. The system was recommended by the Post- 
master-General in his Report of 1908, in which he called attention 
to the fact that more than $3,600,000,000 was deposited in 
private savings banks throughout the United States. He urged 
that inasmuch as there were at least thirty-two states inade- 
quately supplied with such concerns, not less than half a billion 
dollars was kept in hiding — a sum which could be brought into 
circulation through the agency of postal savings banks. As an 
evidence of the demand for this new institution, he cited the fact 
that American citizens during the previous year bought no less 
than $8,000,000 worth of postal orders payable to themselves, in 
order to secure safety for their money. Inasmuch as both parties 
had favored postal savings banks in their platforms of 1908, 
Congress took the matter up and by an act of June 25, 1910, the 
establishment of the system was authorized. Tentative experi- 
ments w^re made at a few post-offices, beginning in January, 
191 1, and the number of depositories was rapidly increased. 
The depositor in the postal savings bank is paid a low rate of 
interest (2 per cent), but he may exchange his deposits for 
gold bonds bearing 2^ per cent interest. A part of the 
money so deposited is kept by the government in reserve and the 
balance is deposited with state or national banks which furnish 
certain securities and pay a rate of 2\ per cent interest. 
The issue of interest-bearing bonds to depositors, it should be 
pointed out, is not obligatory, but depends upon certain condi- 
tions in the Treasury administration.^ 

1 American Year Book, 1910, p. 32? 

The Regulation of Commerce 399 

The Post-Office Department 

The Post-Office Department is a vast business concern charged 
with the supervision of an army of employees, some stationed in 
Washington and others scattered throughout the United States 
— in the thousands of post-offices and on the railway trains and 
other vehicles for mail transmission. The direction of affairs 
is vested in the Postmaster- General, who appoints depart- 
mental employees under the civil service rules,^ manages postal 
finances, and hears appeals from subordinates. The Postmaster- 
General has four assistants, each of whom is responsible for one of 
the great branches of the postal service. The first has charge of 
appointments of postmasters, the establishment and discontinu- 
ance of offices, the adjustment of salaries and allowances for rent, 
clerk hire, and other expenses, and the city delivery service. 
The second assistant looks after all matters pertaining to the 
transportation of mails ; appointments to the railway mail serv- 
ice; authorization of transportation by railways and other 
carriers ; the making of contracts for carriage ; the inspection of 
the carrying service ; and the equipment of the service with the 
devices necessary for the conduct of its business. The third 
assistant is the finance officer of the Department, and he is in 
charge of the accounts, the issue of stamps and money orders, the 
registry system, and classification of mail matter. The fourth 
assistant superintends the divisions of rural delivery, supplies, 
dead letters, and topography. The administration of the post- 
office is greatly hampered by the fact that Congress controls 
rates and locates buildings, under the pressure of ''politics," 
often with slight regard for economy or efficiency. 

The postal authorities possess the power to exclude from the 
mails the letters and papers of persons and corporations practis- 
ing fraud and deception, and also the power to prohibit the use of 
the mails for matter tending to encourage crime and immorality. 
When any person attempts, by fraudulent methods, to procure 
money or property through the mails, the postal authorities 
simply withdraw the privileges of the mails absolutely. This is 

iBy an executive order, March 31, 19 17, all future vacancies in first-, 
second-, and third-class post-offices are to iDe filled by persons who pass 
civil service examinations. 

400 American Government and Politics 

ione by instructing the postmaster at the place where the fraud 
is practised to stamp on all letters addressed to the person in 
question the word "fraudulent"; and return them to the writers 
if there is a return card, or to the Dead Letter Office. The Post- 
Office Department employs inspectors to conduct investigations 
into the misuse of the mails, and make reports to the Postmaster- 
General. These reports are the principal evidence upon which 
"fraud orders" are based. In practice the postal authorities 
serve notice on persons charged with abusing mail privileges, and 
inform them of the nature of the accusation. If an accused 
wishes to make defence, he must go to Washington and present 
his case. It has been uniformly held by the courts that the de- 
cision of the Postmaster- General on questions of fact in fraud 
order cases is not subject to judicial review.^ The Court, how- 
ever, will review the question as to whether a particular scheme 
is fraudulent. 

The exercise of this large power has been entirely reprobated by 
many champions of individual liberty, who hold that it is not the 
business of the government to act as the paternal guardian of the 
citizens, protecting them from their own folly against the machina- 
tions of patent medicine fakirs and "get-rich" swindlers; or in 
guiding them as to the proper literature for the .good of their 
morals. On the other hand, it is asked, with a good deal of 
plausibility, whether the government should permit the use of 
the mails by fraudulent concerns, and thus become a party to the 
deception of innocent persons.^ 

Under the provisions of the Espionage and Sedition acts the 
postal authorities were empowered to close the mails to news- 
papers suspected of "seditious" tendencies and the mail of any 
person whom the postal agents "distrusted" was opened and 
read. A strict censorship of the mails was created under a 
censorship board. 

1 Readings, p. 204. 

2 For example, a few years ago a company in New York began to advertise 
fountain pens at $2.50 apiece, and promised at the same time to employ every 
purchaser of a pen at $8 a week in letter- writing. "It was an endless chain 
scheme, growing constantly wider. All revenues were derived from the sale 
of the pens. This inverted financial pyramid was not' thought stable by the 
post-office people, and the concern was put out of business by a fraud order 
in October, 1902, after having secured 19,000 patrons." Reinsch, Readings, 
p. 392. 



The Federal Land Policy 

The United States at the close of the War for Independence 
possessed an enormous domain of unsettled lands beyond the 
AUeghanies, and from time to time new areas have been added by 
purchase and conquest.^ It is estimated that the United States 
has possessed at one time or another a public domain of no less 
than 2,825,000 square miles — an area more than ten times the 
size of the German empire and more than twenty times the size 
of Great Britain and Ireland. In other words, over two-thirds 
of the total continental area of the United States, including 
Alaska, has been at some time during our history public property. 
In i860 we had a public domain of 1,055,911,288 acres, and in 
spite of the enormous grants which have been made to railway 
companies, corporations, and private persons, the United States 
possessed in 1909 a national estate of 731,354,081 acres.^ 

The history of the disposal of our great domain forms one of 
the most striking and important chapters in the history of the 
United States — a chapter which is unhappily marred by a 
record of wasteful methods, lack of foresight, political corruption, 
and fraudulent transactions. This chapter also contains a 
record of the peaceful conquest and settlement of the Great West 

^ In addition to the lands already granted to private persons, there were 
large public domains in most of the territorial additions to the United States. 
Inasmuch as Texas had organized an independent government and had won 
recognition as an independent commonwealth before admission to the Union, 
it had already made provision for the public lands and was allowed to re- 
tain them. The acquisition of Hawaii, Porto Rico, and the Philippine 
Islands in 1898 brought very little additional public land to the federal gov- 
ernment, as most of it had already been granted away to private persons. 

^ Insular possessions are not included in this estimate; but Alaska is. Report 
of the Secretary of the Interior, 1909, p. 7. Of course Alaska has been added 
since i860. 

2D 401 

402 American Government and Politics 

by tens of thousands of hardy pioneers who built their prosperous 
homes upon the broad acres sold to them at a low price by the 
federal government. 

In the beginning of our history, Congress made no attempt to 
dispose of the western lands in small lots to actual homestead- 
seekers. On the contrary, the government decided to sell the 
land as expeditiously as possible "for the common benefit of the 
United States" — that is, to extinguish the pubUc debt; and 
accordingly large quantities were sold on contract, principally 
to speculative land companies, which in turn subdivided and sold 
in small lots. At length, in 1800, the government began a new 
policy of offering for sale on credit portions of the public domain 
in lots small enough to encourage entry and settlement by home- 
seekers; and in 1820 a system of cash sales was adopted, and pur- 
chasers were allowed to buy plots of any size. 

The Republican party, in its platform of i860, protested against 
a land policy '' which regards the settlers as paupers or suppliants 
for pubhc bounty " ; and demanded the passage of a complete and 
satisfactory homestead measure. In 1862, Congress compHed 
with this demand by passing the Homestead Act, which reserved 
the arable land for settlers and provided that any head of a family 
might secure a quarter of a section of land, that is, 160 acres, by 
residing on it for a period of five years. ^ 

In spite of these attempts to reserve the pubHc lands for bona- 
fide home-seekers, enormous areas have been secured by land 
companies, either by the purchase of the small grants made to 
private parties or by fraud. "Our public lands, whose highest 
use is to supply homes for our people," said President Roosevelt, 
''have been and still are being taken in great quantities by large 
private owners to whom home-making is at the very best but a 
secondary motive, subordinate to the desire for profit. To allow 
the public lands to be worked by the tenants of rich men for the 
profit of the landlords, instead of by freeholders for the Hvelihood 
of their wives and children, is little less than a, crime against our 
people and our institutions. The great central fact of the public 
land situation ... is that the amount of pubhc land patented 

* This act, however, was only supplementary to the preemption system 
(1841 to 1891) according to which the head of a family might enter a 
quarter of a section by paying $200 and living upon it for a period of six 
months. Under the act of 1862 each homestead-seeker had to pay a fee of $40 

National Resources 403 

by the government to individuals is increasing out of all propor- 
tion to the nuinber of new homes." * 

The pubHc lands which have not been granted to land com- 
panies and to private persons have been disposed of in several 
ways.^ In the first place, whenever a new state has been admitted 
to the Union it has received from the federal government a large 
portion of public domain within its area. Previous to 1850, it 
was the practice of the federal government to give to each state 
one thirty-sixth of the pubhc lands within its borders for school 
purposes; and since 1850 the amount has been doubled.^ In 
1862 Congress granted to each state an amount of land according 
to its representation in Congress, to be devoted to the support of 
an agricultural college. In addition to these grants for edu- 
cational purposes, Congress has given to the various states from 
time to time large areas to be used in the making of internal im- 

Finally there are the concessions wliich have been made to 
railway corporations. It is estimated that under the various 
railway acts no less than 155,504,992 acres have been given to 
railways, and that more than one-half of this amount has been 
actually taken up by them. Most of this land, however, has 
found its way into the hands of homestead-seekers, for it has been 
the practice of the railways to sell their lands in small amounts 
at reasonable prices in order to encourage actual settlement. It 
has been profitable for them to develop population and industries 
along their lines; and they have accordingly used their grants for 
the rapid upbuilding of the West.^ 

While the government makes some distinction between ordi- 
nary arable lands and the lands which are valuable for timber, 
stone, and minerals, its poUcy from the very beginning has sac- 
rificed the pubUc domain very largely to prospectors and specu- 
lators. Congress has provided that the timber lands open for 

' The Annals of the American Academy of Political and Social Science, 
Vol. XXXI, pp. 8-9. 

^ Large grants were made to the soldiers of the Revolutionary and 
Mexican wars. 

2 The six states admitted in 1890-91 were given considerably more than 
one-eighteenth of the public lands within their borders. 

•* Reference: J. B. Sanborn. Congressional Grants of Latid in Aid of Rail- 
ways, University of Wisconsin Publications (Economics), ^''ol. II, No 3. 

404 American Government and Politics 

entry must be sold only in small lots to single persons or com- 
panies for their respective benefit, but as a matter of fact the 
entries made by private persons rapidly pass into the hands of 
large timber companies. A bare list of the timber and land 
frauds which have been unearthed by the government would fill 
a volume of no mean proportions. Mineral lands have been like- 
wise disposed of ostensibly to private individuals in small lots, but 
in actual practice to large corporations. 

The reckless and notorious waste of our rich mineral resources 
was long a standing disgrace to the federal government. 
President Cleveland in his message of 1886 declared that "the 
object of the laws was perverted under the system of cash sales 
from a distribution of lands among the people to an accumulation 
of land capital by wealthy and speculative persons." Twenty 
years later, President Roosevelt, in his message of February 3, 
1907, called attention to the waste of our mineral resources, and 
recommended legislation providing for the separation of the title 
to the surface of the land from the title to the underlying mineral 
fuels, in order that the latter may be kept for pubHc benefit, 
even if the former is sold. In his report for the year 1908, the 
Secretary of the Interior said: ''It is most earnestly to be hoped 
that Congress at this session will consider favorably the pending 
measure which has for its purpose the segregating of the coal 
from the surface and the sale or lease of the coal in such quanti- 
ties as will permit its development in accordance with the needs 
of the country, and in a great measure prevent private interests 
from either monopolizing or holding for speculative purposes the 
great fuel deposits remaining in the public domain. The pending 
bill provides for alternate methods of sale and lease, so that the 
system best adapted to any section of the country may be used." ' 

The administration of the public lands is in charge of the com- 
missioner of the general land ofiice (Interior Department) who 
supervises their survey and sale. For the purpose of adminis- 
tration the states and territories having considerable pubHc 
domain are laid out into districts, in each of which there is a local 
land office in charge of registers and receivers, who dispose of 
public lands under the laws and receive the funds accruing from 
these sales. Under an appropriation of Congress which went 
into effect on May 27, 1908, the force of special agents in charge 
1 Now enacted into law. Below, p. 410. 

National Resources 405 

of the public lands was greatly increased for the purpose of more 
carefully policing the public domain and seeing that fraudulent 
land transactions were prevented.^ 

The Conservation Movement 

Under the historic land poHcy sketched above, Uttle or no 
thought was taken of the ultimate result, as the nation's heri- 
tage in lands, forests, and minerals was being bartered away to a 
considerable extent to shrewd and enterprising fortune hunters — 
to say nothing of the enormous areas that have been actually 
stolen. It is true that the policy of rapid alienation has been 
the chief, and to a large extent necessary, factor in the rapid 
development of the West, but nevertheless the Hon. Theodore 
Burton spoke correctly when he said in a letter to President 
Roosevelt in 1907: — 

Hitherto our national policy has been one of almost unrestricted 
disposal of natural resources, and this in more lavish measure than in 
any other nation in the world's history; and this policy of the federal 
government has been shared by the constituent states. Three con- 
sequences have ensued: First, unprecedented consumption of natural 
resources; second, exhaustion of these resources to the extent that a 
large part of our available public lands have passed into great estates 
or corporate interests, our forests are so far depleted as to multiply the 
cost of forest products, and our supplies of coal and iron are so far re- 
duced as to enhance prices; and third, unequalled opportunity for 
private monopoly, to the extent that both federal and state sover- 
eignties have been compelled to enact laws for the protection of the 

We have in fact arrived at a point where the exhaustion of 
some of our important natural resources is approaching, if the old 
wasteful methods of exploiting them are allowed to continue; 
and the realization of this fact has made the conservation and 
right use of our natural opportunities one of the most vital ques- 

^ During the fiscal year ending June 30, 1908, a little more than 19,000,000 
acres of public lands were entered; the total cash receipts from the disposal 
of lands during that year were about $12,500,000, which netted the treas- 
ury a balance of a little more than $10,000,000; during that year also many 
additional forests were created, making a total forest area of 167,976,886 

^Proceedings oj a Conference of Governors, p. viii (Official Report) . 

4o6 American Government and Politics 

tions to be solved by the present generation. Indeed, as Presi^ 
dent Roosevelt put it, "the conservation of our natural resources 
and their proper use constitute the fundamental problem which 
underlies almost every other problem of our national life." 

This issue was first seriously brought to the attention of the 
general pubHc by President Roosevelt in his numerous addresses; 
and a practical step toward the solution of the problem was taken 
by him in the appointment, in 1907, of the Inland Waterways 
Commission to investigate and recommend a full and compre- 
hensive plan for the development and utiHzation of the water 
resources of the country. He took the second important step in 
calHng a Conference of Governors at the White House on May 
13-15, 1908. At that meeting of state executives, facts regard- 
ing our natural resources were presented by experts; methods 
of educating public opinion were considered; and many plans by 
which conservation could be best accomplished were suggested. 
All during Mr. Roosevelt's administrations the subject was 
widely agitated, the President and the Forester, Mr. Gifford 
Pinchot, taking the lead. 

In Mr. Taft's administration this agitation bore fruit in 
several important acts of Congress. Among them were: 
(i) the act of June 22, 19 10, permitting agricultural entries on 
coal lands and the separation of the surface from the coal be- 
neath ; (2) the act of June 25, 19 10, authorizing the President to 
reserve water power sites on the national domains ; (3) the act of 
February 24, 191 1, authorizing the Secretary of the Interior to 
lease water power sites on reclamation projects; and (4) the 
act of March i, 191 1, providing for cooperation between the 
federal and state governments in forest fire prevention. In 
Mr. Wilson's administrations, the legislation dealing with 
national resources pertained to the improvement of administra- 
tion rather than to any radical extension of principles. Perhaps 
the most noteworthy act was the law of October 20, 1914, author- 
izing the Secretary of the interior to lease coal lands in Alaska 
under certain restrictions. Large appropriations were made 
for the purchase of forest lands to be added to the national 
domain. On February 25, 1920, an important act for leasing 
coal, oil, phosphate and gas lands in the public domain was 
pa'ssed — a vital and fundamental measure of conservation 
based on modern ideas. 

National Resources 407 

The Soil 

The fundamental resource of the country is the soil. It was 
said by James J. Hill, in an address before the first Conference of 
Governors, that ''nearly 36 per cent of our people are engaged 
directly in agriculture. But all the rest depend on it. In the 
last analysis, commerce, manufactures, our home market, every 
form of activity, run back to the bounty of the earth by which 
every worker, skilled and unskilled, must be fed, and by which 
his wages are ultimately paid." ^ 

While we had at our disposal vast areas of virgin soil, we took it 
for granted that agriculture could take care of itself and that 
manufacturing alone needed our best energies and skill. During 
the pioneer days, the frontiersmen cleared away forests for farms, 
and after getting what they could out of the land, abandoned it, 
moved forward, and repeated the process. That the apphcation 
of science to the abandoned areas would have renewed the bounty 
of the soil did not occur to the pioneers, and it was only natural 
that the refinements of agriculture should have been neglected 
amid the rough struggles of the frontier. 

As the tide of land-hunting pioneers swept westward it left 
behind it neglected and abandoned farms. All throughout New 
England and the eastern states there are deserted farm-houses 
falling into ruin, and vast areas once under cultivation are 
being overgrown with scrub. The rough-and-ready single-crop- 
ping system, the careless provisions for fertihzation, the malad- 
justment in connecting the country with town markets, and the 
enormous charges for freight and express (due in many instances 
to watered stocks and monopoHes) are conspiring to turn 
whole states into wildernesses. Society and science must co- 
operate with private initiative in restoring these regions to 
fertility and productiveness. 

It is not only the methods of tilling which are causing this 
dechne in fertiUty. The soil is also being depleted by natural 
causes, the principal one of which is erosion, or the sweeping away 
of the fertile surface into streams by means of torrential rains 
and floods. It is estimated that 1,000,000,000 or more tons 
of richest soil matter are annually carried into the sea by our 

^Proceedings of a Conference of Governors, 1908, p. 72. 

4o8 American Government and Politics 

rivers.^ Millions of acres, particularly in the South, have been 
rendered bare and useless for agriculture largely by this process. 
One of the principal means of stopping this wastage is the con- 
servation of forests which help to regulate the flow of water.^ 

The federal and state governments at present do little directly 
to aid in preserving and improving the fertility of the soil; but 
the experiments in advanced methods of cultivation carried on 
by the Department of Agriculture,^ the Experiment Stations, and 
state agricultural colleges, are doing much to show the farmers 
how to make the best use of their land and at the same time to 
conserve it for the use of posterity. Science will become the ser- 
vant of agriculture as well as of industry. 

While lending this aid to improving the methods of agriculture, 
the federal government is widening the public domain by re- 
claiming arid and semi-arid lands through gigantic irrigation 
undertakings. The Newlands Act of June 17, 1902,* authorized 
the Secretary of the Interior to undertake the work of reclama- 
tion on a large scale. The fund for the work consists of the pro- 
ceeds from the sale of the public lands in certain states. The 
lands made available by irrigation are sold, in small tracts, to 
actual settlers, who pay the price in annual instalments, thus 
restoring to the reclamation fund the money that is laid out. 
It was estimated that the value of the crops in the irrigated 
districts in 1918 was about $100,000,000.^ 

The work is done by the Reclamation Service, which is in the 
Department of the Interior, Reservoirs, drains, canals, etc., 
are constructed by the government,^ and from them the settlers 
can draw water by means of ditches to irrigate their farms. 
A large number of projects have been undertaken, all of them 
requiring engineering skill of a high order. One of the most in- 
teresting of these is the Shoshone project in Wyoming, which re- 
quired the erection of a dam over 300 feet high.'' The first 

1 Proceedings of a Conference of Governors, 1908, p. 78. 

2 Readings, p. 365. 

3 For the work of this important Department see Reinsch, Readings, 
pp. 401 ff. 

^ For speeches in Congress on this act, see Readings, pp. 66, 371. 
^ Report of the Secretary of the Interior, 1919, p. 98. 
® Largely by contract. 

^ The Annals of the American Academy of Political and Social Science, 
Vol XXXI, pp. 203-218. 

National Resources 409 

seventeen years of the reclamation work resulted in making 
about 1,600,000 acres fit for settlement, out of which 1,120,000 
acres were actually irrigated.^ 

Some of the states are also carrying on similar work. For 
example, Idaho has undertaken stupendous projects. It has 
constructed one of the largest irrigation canals in the world and 
rendered arable more than 200,000 acres of barren waste. It 
has entered into contracts for the construction of large storage 
reservoirs to control flood waters. 

Mineral Resources 

Among the most valuable of the natural resources and the 
most necessary in the present stage of civilization are the 
minerals. Coal and iron form the foundation of our industrial 
prosperity. In one respect, the minerals differ greatly in char- 
acter from all other natural resources ; they cannot be improved 
or renewed. This makes a proper use of them all the more 

For a long time it was the policy of the federal government in 
disposing of agricultural lands to convey rights to any mineral 
deposits that might be found beneath with the right to use the 
surface of the land. On June 22, 19 10, a new policy was inau- 
gurated of separating surface claims from the mineral deposits. 
An act of that date permitted agricultural entries