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AMERICAN CITIZEN SERIES.
EDITED BY
ALBERT BUSHNELL HART, LL.D.
ACTUAL GOVERNMENT
ALBERT BUSHNELL HART.
3/
AMERICAN CITIZEN SERIES
Edited by Albert Bushnell Hart, LL.D.
Outline of Practical Sociology ; with Special Reference
to American Conditions.
By Carroll D. Wright, President of Clark College.
With Maps and Diagrams. [_New Edition preparing.']
Actual Govenmient as Applied under American
Conditions.
By Albert Bushnell Hart, LL.D., Eaton Professor of
the Science of Government in Harvard University. With
6 Colored Maps and 1 1 other Illustrations and Diagrams.
Crown 8vo.
Financial History of the United States.
By Davis R. Dewey, Ph.D., LL.D., Professor of Eco-
nomics and Statistics in the Massachusetts Institute of
Technology. With Diagrams. Crown 8vo.
Constitutional Law in the United States.
By Emlin McClain, LL.D., sometime Lecturer on Consti-
tutional Law at the State University of Iowa. Crown 8vo.
Principles of Economics; with Special Reference to
American Conditions.
By Edwin R. A. Seligman, Ph.D., LL.D., McVickar
Professor of Political Economy in Columbia University.
With 6 Colored and 22 other Diagrams. Crown Svo.
Organized Democracy; An Introduction to the Study
of American Politics.
By Frederick A. Cleveland, Ph.D., LL.D. Crown Svo.
Public Opinion and Popular Government.
By A. Lawrence Lowell. President of Harvard Uni-
versity. Crown Svo.
LONGMANS, GREEN, & CO.: NEW YORK
4
Oe.s
'SmcvicHtx CtttjfiT ^trie^.
Actual Government
AS APPLIED UNDER
AMERICAN CONDITIONS.
BY
ALBERT BUSHNELL HART, LL.D.,
^rofeSBioc of <gobcrnment in llarbarb ^Hnibcrsitp
AUTHOR OF " FORMATION OF THE UNION," " NATIONAL IDEALS,'
"foundations OF AMERICAN FOREIGN POLICY," ETC., ETC.
Fourth Edition
Revised
LONGMANS, GREEN, AND CO.
FOURTH AVENUE &» 30TH STREET, NEW YORK
LONDON, BOMBAY, CALCUTTA, AND MADRAS
I919
Copyright, 1903. ,
By Longmans, Green, and Co.
First Edition published August, igo3.
Second Edition revised, May, igo4;
reprinted, August 1Q05; September, 1006.
Third Edition revised, May, 1908;
reprinted, August, 1909; January, 1910;
January, 1911; January, 1913; June, 1914.
Fourth Edition, with bibliographies revised throughout,
November, 1918, March, 1919
Ta MARY PUTNAM HARTj
JOINT GOVERNOR.
Preface.
Where there are so many clear, well-thought, and
accurate text-books upon the government of the United
States, a new book requires an explanation, if not an
apology. The reason for this volume is the conviction
that there is room for a college and upper high-school
text-book which shall emphasize five points of view
with respect to American government.
First of all, the American governmental system should
be treated as a whole : state government and the various
phases of local government should come in, not as after-
thoughts to the national system, but as integral parts of
one American government.
The second necessity is to study the actual workings
of government : the text of constitutions and of statutes
is only the enveloping husk; the real kernel is that
personal interest and personal action which vitalizes
government. For example, the adoption of rules by
the House is only preliminary to the exercise of the
extra-constitutional authority of the speaker and the
committees. Description of realities sometimes be-
comes a criticism ; in the attempt to picture things, as
they are, it will sometimes be necessary to tell the truth
about things which we wish were otherwise.
In the third place, a thorough text-book must discuss
not only the machinery of government but the operations
of government ; legislatures do not exist simply to be
viii Preface.
investigated by students, but to express the public will
that things be done ; the functions of governments —
such as the administration of justice, taxation, expen-
diture, transportation, the maintenance of order — are
more important than the details of governmental organ-
ization. Throughout I have tried to make clear the
make-up of governments and the status of officials ;
but I have laid special stress on the purpose, extent,
division, exercise, and limitations of governing power.
In the fourth place the historical part of the book is
not separated out from the descriptive ; instead of a
preliminary sketch of colonial and Revolutionary insti-
tutions, I have preferred to begin the discussion of each
large topic with a brief account of how that particular
agency or function came to be.
Finally, there is at the service of the student of
American government a large body of cogent material,
both essential sources and carefully wrought secondary
books; but it is still undigested. I have therefore
thought it a proper part of this work to prefix a bibli-
ography of the subject, as well as to insert classified
references at the heads of the chapters.
I am under special obHgation to Mr. C. S. Hamlin,
Mr. Edward Atkinson, Mr. E. H. Goodwin, and Prof.
P. H. Hanus for suggestions on portions of the proof;
and the expert verification of Mr. David M. Matteson
has added definiteness and exactness to statements on
alrhost every page.
ALBERT BUSHNELL HART
NOTE
The present edition has afforded an opportunity to revise the
preliminary and chapter bibliographies, which have been reset
throughout.
December, 1918.
Contents.
Page
SELECT BIBLIOGRAPHY OF AMERICAN GOVERN-
MENT xxiii
Part I.
FUNDAMENTAL IDEALS.
Chapter
I. Physical Basis of Government.
1. References 3
2. The Land and its Resources 4
3. Political Subdivisions 6
4. Population and Distribution 8
5. Race Elements 9
6. American Society 11
II. The Individual and his Personal Rights.
7. References ■ . . 1*4
8. The Citizen and the Alien ........... 15
9. Acquirement and Loss of Citizenship ....... 16
10. Privileges and Obligations of Citizenship ig
11. History of Anglo-Saxon Liberty 21
12. Rights of Personal Freedom and Habeas Corpus . . 23
13. Rights of Political and Religious Opinion 27
14. The Right to Fair Judicial Proceedings ...... 29
15. Rights of Dependent People and Colonists .... 31
16. Political and Social Rights 32
III. The Frame of Government.
17. References 34
18. Sovereignty 35
19. Sovereignty of the People 36
X . Contents. Pans I., II.
Chapter
III. The Frame of Government [continued). page
20. Representative Government 38
21. English Precedents of Free Government 39
22. Colonial Precedents of Free Government 41
23. The Earliest State Constitutions 45
24. Genesis of the Federal Constitution 48
25. Unity of American Government 51
26. Separation of Powers 53
27. Division of Powers 54
28. The Written Constitution 56
29. Preparation of Constitutional Amendments .... 59
30. Ratification of Constitutional Amendments .... 61
31. Construction and Application of Constitutions ... 63
Part II.
THE WILL OF THE PEOPLE.
IV. Suffrage and Elections.
32. References 65
33. History of Anglo-Saxon Suffrage 66
34. Qualifications for Voting 67
35. Woman Suffrage 70
36. Electoral Districts and Registration 71
37. Methods of Voting and Count of Votes 73
38. Minority and Proportional Representation 76
H 39. Popular Votes on Constitutional and Legislative Ques-
tions 78
40. Exercise of the Suffrage 82
41. Reform of Electoral Methods . 84
V. The Party and the Machine.
42. References 86
43. History of American Parties • . . . 86
44. Party Organization and Party Committees 89
45. The Caucus 91
46. The Nominating Convention 93
47. National Conventions '95
48. The Machine and the Boss 98
49. Influencing Voters 104
50. Relations of National and Local Politics 106
51. Reform of Party Methods 109
Part III. States. xi
Part III.
STATE GOVERNMENTS IN ACTION.
Chapter
VI. The States and the Union. Pagb
52. References 113
53. Variety and Unity of State Organization 114
54. Admission into the Union 116
55. Privileges in the Union 118
56. Interstate Obligations 120
57. Duties in the Union, and State Sovereignty .... 122
58. Functions of State Government 124
VII. State Legislatures.
59. References ■ . 127
60. Members of the Legislature 127
61. Organization of the Legislature 129
62. Process of State Legislation 131
63. Influences on State Legislation 133
64. The Governor's Veto 136
65. Output of State Legislation 137
VIII. State Executives.
66. References 140
67. The Governor 140
68. State Executive Departments 143
69. System of State Boards 145
70. State Officials 146
71. Civil Service Reform in States 147
IX. State Courts.
72. References 151
73. State Judges » i.Si
74. State Courts 154
75. Criminal Law and Jurisprudence . 155
76. Civil Law and Jurisprudence 158
77. Judicial Control of Executive Officials 161
78. Declaring Statutes Void 163
xii Contents. Parts IV., V.
Part IV.
LOCAL GOVERNMENT IN ACTION.
Chapter
X. Rural Units of Government. Page
79. References 167
80. Creation and Functions of Rural Governments . . . 168
81. School Districts, Villages, and Boroughs 169
82. The Town System 170
83. The County System ' 174
84. Mixed County-Precinct and Township-County Systems 176
85. Improvement of Rural Government 178
XI. City Governments.
86. References 180
87. History of American City Governments 181
88. City Charters and City Functions 183
89. City Government by State Legislation 186
90. City Councils 188
91. The Mayor 192
92. City Departments 194
93. City Officials and Employees 196
94. Civil Service Reform in Cities 198
XII. Problems of City Government.
95. References 200
96. Urban Residents 201
97. Distribution of Population within Cities 203
98. Problems of Transportation 205
99. Political and Party Organization in Cities 208
100. Essential Defects of City Government 210
lOi. Possible Improvements in City Government . ... 212
Part V.
NATIONAL GOVERNMENT IN ACTION.
XIII. Internal Organization of Congress.
102. References 215
103. History of the Two National Houses 2x6
104. Choice of Senators 218
105. Apportionment and Choice of Representatives . . . 221
Part V. Localities and Nation. xiii
Chapter
XIII. Internal Organization of Congress {continued). Page
106. Meetings of Congress 226
107. Privileges and Obligations of Members 227
X08. Speaker of the House 231
109. Congressional Committees .......... 233
XIV. Congress at Work.
no. References 237
111. Open and Secret Sittings 237
112. Rules and Party Management 239
1 13. Parliamentary System and Congressional System . . 243
114. Preparation of Measures 244
1 15- Influences on Congress 245
116. Debate in Congress 248
117. Amendments of Measures, and Votes 251
118. The Presidential Veto 254
119. Output of National Legislation 256
XV. The President.
120. References 258
121. History of the Presidency 259
122. The Choice of the President 261
123. The President's Life in Washington 267
124. Functions of the President 269
125. Presidential Appointing Power 270
126. Relations with Congress 273
127. Dignity of the Presidential Office 274
XVI. National Civil Service.
128. References ^76
129. Heads of Departments 277
130. The Cabinet 279
131. Presidential Removals 282
132. Minor Appointments and Removals ....... 285
133. Reform of the Civil Service 288
134. Civil Service Commission 290
XVII. The Federal Judiciary.
135. References '. 295
136. History of the Federal Judiciary 296
137. Federal Judges 298
138. Federal Courts 301
139. Process of Impeachment 304
140. Federal Writs 306
141. Cases involving Federal Law 309
xiv Contents. pam V., VI.
Chapter
XVII. The Federal Judiciary {continued). Page
142. Cases involving Federal Parties 310
143. States as Parties in Federal Suits 312
144. Appeals 314
145. Declaring Acts Void 315
Part VI.
TERRITORIAL FUNCTIONS.
XVIII.' Land and Landholdin
146. References 320
147. Functions of Government 321
148. Private Landholding 322
149. Corporate and Railroad Landholding . 325
150. Municipal Real Estate and Eminent Domain .... 327
151. State Real Estate 329
152. National Real Estate 332
153. The National Capital 333
154. The Public Lands 335
XIX. Boundaries and Annexations.
155. References 342
156. History of the National Area 342
157. Processes of Annexation 345
158. Exterior Land and Water Boundaries 346
159. Territorial and State Boundaries 348
XX. Territories and Colonies.
r6o. References 352
161. Jurisdiction Contrasted with Ownership 353
162. District of Columbia 355
163. National Forts and Sites 357
164. Indian Reservations 358
165. Status of Indians 361
166. Organized Territories and Dependencies 364
167. Unorganized Dependencies 369
168. Protectorates 373
169. The Monroe Doctrine 376
170. Colonial Problems 378
Parts VII., VIII. Functions. xv
Part VII.
FINANCIAL FUNCTIONS.
Chapter
XXI. Taxation. Page
171. References ' 381
172. Land Taxes 383
173. Taxes on Personal Property 385
174. Specific, Corporation, and License Taxes 387
175. Assessment and Collection of Taxes 389
176. History of the Tariff 394
177. Administration of the Tariff 398
178. Excise and Internal Revenue 401
179. Amount and Incidence of Taxation » . 404
XXII. Public Finance.
180. References . . 407
181. Public Property 408
182. Public Budgets 410
183. Public Expenditures 414
184. State Debt 419
185. Municipal Debt 421
186. National Debt 423
187. Reforms in Public Finance 427
Part VIII.
EXTERNAL RELATIONS.
XXIII. Foreign Intercourse.
188. References 430
189. History of American Foreign Policy 431
I go. Diplomatic Representatives 433
191. Consuls 436
192. Treaties 439
193. The United States as a World Power 444
XXIV. Foreign Commerce.
194. References 446
195. Regulation of Shipping . 447
196. Regulation of Immigration 450
197. Movement of Foreign Commerce . 453
198. Our Commercial Neighbors . 456
xvi Contents. Parts VIII., IX.
Chapter
XXV. War Powers. Page
199. References 459
200. History of American Wars 459
201. The Army , . 462
202. The Navy .....,.". 466
203. Education of Officers 469
204. The Militia . . . 472
205. Carrying on War 474
206. Military and Naval Pensions . . . . 477
Part IX.
COMMERCIAL FUNCTIONS.
XXVI. Organization of Commerce.
207. References 481
208. The Business Man and the Firm . . . 482
209. Corporations and Trusts ........... 483
210. Banks and Banking 487
2X1. Transfer of Title to Property 489
212. Doctrine of Contracts 493
213. Weights and Measures 495
214. Coinage and Currency 496
215. Regulation of Commerce and Occupation 499
216. Regulation of Labor ^01
217. State and Municipal Industries 503
XXVII. Transportation.
218. References 505
219. State and Interstate Commerce . . 506
220. Transmission of Intelligence co8
221. History of Modes of Transportation eil
222. Highways and Streets C13
223. Navigable Rivers and Canals C17
224. Harbors and Internal Improvements 519
225. Railroads 521
226. Public Aid to Railroads 526
227. City Traction Systems 528
228. Country Electric Lines 530
229. City Ownership of Traction Lines 532
Part X. Functions. xvii
Part X.
GENERAL WELFARE.
CHAtTER
XXVIII. Education. Page
230. References ............. . . . 535
231. History of American Education . . . . .' . . . . 536
232. Private and Church Schools .......... 540
233. Public Schools c^i
234. Endowed Universities and Technical Schools . . . . 544
235 State Universities . 546
236. Religious and Moral Training of Youth 548
237. Public Libraries and Museums 549
238. Problems of Education 551
XXIX. Religion and Public Morals. , .
239. References 555
240. History of American Churches 555
241. Government and Churches 557
242. Religious Denominations 559
243. Public Morals 561
XXX. Public Order.
244. References 564
245. Crime and Punishment 565
246. Charities and Corrections 566
247. Regulation of the Liquor Traffic 569
248. Public Health 571
249. Fire Protection and Light 573
250. The Police Force 575
251. Riots and Insurrections 576
252. Suppression of Disorder 578
253. Ultimate Defence of Society 5^'
INDEX . -585
xviii Contents.
MAPS AND DIAGRAMS.
Page
Territorial Development of the United States Frontispiece
Physical Features of the Continental Mass Tc face 4
Distribution of Population in 1900 " 8
An Australian Ballot " 74
State Capitols " 130
A Legislative Bill .......' " 136
County Buildings - . . " 174
County Buildings . . " 178
City Buildings " 196
A Gerrymandered State '. " 222
State Capitols , . " 332
Rectangular Survey of Public Lands " 336
District of Columbia " 356
Indian Reservations " 360
An Assessment Blank " 390
Table of National Debt " 424
Diplomatic and Consular Ofifices " 436
SUGGESTIONS FOR STUDENTS, TEACHERS,
AND READERS.
The preface of this book sufficiently explains the writer's
point of view, and makes clear that this is not a treatise on
constitutional law either federal, state, or municipal; but an
attempt to describe the government as one might undertake
to describe a great railroad. To prepare an adequate
accovmt of the Chicago and Northwestern, for instance, one
would first briefly study the founding of the road to learn
the purposes of those who built it. He would then carefully
examine its physical plant, buildings, material; then he
would study the personnel, from president and board of
directors down to switchmen and track-layers; the system
of relations with other roads; the treasurer's office and
system of book-keeping; the tenure of the employees and
their wages. When all this was described, he would enter
on the subject which most interests the observer and the
investor, — the operation of the road; for the main ques-
tion is, "What does the road do?" Hence the study of kinds
of traffic; gross receipts, operating expenses; dividends,
bonds, stock and floating debt; methods of conducting ter-
minals, train-despatching, accidents, and repairs. For such
a study, one would seek not only published rate-sheets and
annual reports and the systematic works of experts in rail-
roading, but also the experience of travellers and shippers
and practical railroad men.
In the same way, in using this book it must constantly be
kept in mind that it is an attempt to explain both the organ-
ization and the functions of government, not simply by what
.constitutions and statutes say ought to be done, but by the
XX Suggestions for Students.
experience of what is done and also what is enjoined yet
omitted. Compared with the immense body of facts which
might be examined, the text is brief, and many important
details must remain undescribed. It is expected that
students will add to the necessarily general statements of
the text through some of the readings suggested at the chap-
ter headings. The paragraph numbers make it easy to
assign lessons or readings from day to day; and by using,
some of the commonest materials a new insight may be had
into many important fields.
A select bibliography has been placed at the beginning of
the. book, so as to furnish an opportunity for detailed and
critical study of significant governmental questions. In the
author's Manual of American History, Diplomacy, and
Government is a printed list of several hundred such brief
research subjects.
In the long run, the student must verify or dispute many
statements of this book through such knowledge of American
government as he can get direct from men engaged in govern-
ment as administrators, as employees, as politicians, or as
business and professional men, whose experience throws them
into contact with governments in action. For government
is not a matter of written documents; it is a method of action,
a means of reaching results.
SMALL REFERENCE LIBRARY
It may be convenient to make a brief list of a few of the
most helpful books on American government. The list can
be readily enlarged by using the select bibliography which
follows and the bibHographical aids there enumerated.
Beard, Charles Austin. American Government and Politics.
(New and rev. ed., N. Y., 1914.) — Especially strong on
political methods and on national government.
Suggestions for Students. xxi
Bryce, James. The American Commonwealth. (2 vols., rev.
[4th] ed., N. Y., 1910.) — The acknowledged best account of
American government as a whole.
Dewey, Davis Rich. Financial History of the United States.
{American Citizen Series. 6th ed., N. Y., 1918). — With
tables; very complete to its date.
GooDNOW, Frank Johnson. Politics and Administration; a
Study in Government. (N. Y., 1900.) — See note below.
Holcombe, Arthur Norman. State Government in the United
States. (N. Y., 1916.) — Standard book on its subject and
very suggestive on the principles of American government.
McClain, Emlin. Constitutional Law in the United States.
{American Citizen Series. 2d ed., N. Y., 1910.) • — -Excellent
brief treatise, convenient for class use.
McLaughlin and Hart. Cyclopedia of American Government.
(3 vols., N. Y., 1914.) — See note below.
MuNRO, William Bennett. The Government of American Cities.
(Rev. ed., N. Y., 1916.) — Very convenient handbook on
cities.
Ray, p. Orman. An Introduction to Political Parties and Practical
Politics. (New and rev. ed., N. Y., 1917.) — See note below.
Reed, Thomas Harrison. Forms and Functions of American
Government. (N. Y., 1918.) — Very suggestive to any student
of government.
Roosevelt, Theodore. American Ideals, and other Essays,
Social and Political. (N. Y., 1897.)
WiLLOUGHBY, Westel Woodbury, editor. The American State
Series (8 vols., N. Y., 1904-1908), as follows: Baldwin,
Simeon Eben, The American Judiciary; Fairlie, John Ar-
chibald, Local Government in Towns, Counties and Villages;
Finley, John Huston, The American Executive and Executive
Methods; Goodnow, Frank Johnson, City Government in
the United States; Macy, Jesse, Party Organization and
Machinery; Reinsch, Paul Samuel, American Legislatures and
Legislative Methods; Willoughby, Westel Woodbury, The
American Constitutional System; an Introduction to the Study
of the American State; Willoughby, William Franklin, Terri-
tories and Dependencies of the United States, their Government
and Administration.
SELECT BIBLIOGRAPHY OF AMERICAN
GOVERNMENT.
No formal bibliography of government from the point of view of
practice has been published; and the material is hard to deal with,
for most of the literature of discussion and criticism previous to
the CivU War has little application to government in action; and
many present-day books show little trace of study, or of acquaint-
ance with real conditions. This bibliography, therefore, includes
only the most serviceable books and a list of periodicals. The
rich and instructive articles in periodicals cannot be brought
within the limits of a brief list of references like the following.
Current books are reviewed or noticed in the periodicals (see
list below), especially American Academy of Political and Social
Science , A nnals; A merican Political Science Review; A merican Muni-
cipal Review; Political Science Quarterly; Nation; New Republic.
I. Bibliographies and Finding Lists.
The means of reaching desired information and discussion on
questions of government have much improved in late years,
through the lists of books printed in many text-books and special
works, and through systematic bibliographies, wholly or in part
devoted to material on government.
The principal bibliographical aids are the following:
Channing, Edward, Hart, Albert Bushnell, and Turner,
Frederick Jackson. Guide to the Study and Reading of
American History. (Rev. and augmented ed., Boston, etc.,
191 2.) — Several lists of descriptive material: especially,
bibliographical aids (§ 21); geographical material (§§ 30-35);
colonial records (§ 43); United States records (§§ 26, 44);
works of statesmen (§ 46); colonial institutions (§§ 163-165);
foundation of the Constitution (§§ 153, 158, 166, 173-175);
later political institutions (§§ 200-203, 274).
xxiv Select Bibliography.
Griffin, Grace Gardner, and others. Writings on American
History. (Washington, N. Y., and New Haven, 1904-.) —
Annual volumes; these publications cover the writings of the
years 1902, 1903, 1906-1915. Each includes divisions on
politics, government, and law.
Hart, Albert Bushnell, editor. The American Nation: a His-
tory. (28 vols., including Index vol., N. Y., 1904-1918.) —
Critical essays on authorities in each volume. Much gov-
ernmental matter included. The later volumes lead directly
to recent publications of the United States government.
Hart, Albert Bushnell. Manual of American History, Dip-
lomacy and Government; for Class Use. (2d ed., with index,
Cambridge, 191 5.) — Contains suggestions on the literature
of government (§§ 22-24); two lists of lectures with special
references (§§ 96-133) ; special bibliographies of contested
points (§§ 198-230); and about 800 topics for investigation
(§§ 283-299),
Jones, Leonard Augustus. An Index to Legal Periodical Liter-
ature. (2 vols., Boston, 1888, 1899.) — The most convenient
key to the numerous valuable articles on government in law
periodicals. It includes many articles from general period-
icals. Continued (since 1908) by the American Association
of Law Libraries under the title Index to Legal Periodicals
(Chicago, 1909-); periodically with annual cumulation.
Larned, Josephus Nelson, editor. The Literature of American
History: A Bibliographical Guide. (Boston, 1902.) — Sup-
plement for igoo and igoi. (Boston, 1902.) — A bibliography
of American history with over 4,000 titles, each annotated
by an expert.
McLaughlin, Andrew Cunningham, and Hart, Albert Bush-
nell, editors. Cyclopedia of American Government. (3 vols.,
N. Y., 1914.) — Contains bibliographies on hundreds of
topics, including recent periodicals. Classified references.
IMuNRO, William Bennett. A Bibliography of Municipal Gov-
ernment in the United States. (2d ed., Cambridge, Mass.,
1915.) — Standard bibliography in its subject. Well clas-
sified.
Poole, William Frederick, Fletcher, William Isaac, and
others. Poole's Index to Periodical Literature, 1802-1881.
Finding Lists. xxv
(3d ed., Boston, etc., 1882.) — First Supplement, 1882-1886.
(Boston, etc., 1888.) — Second Supplement, i88j-i8gi. (Bos-
ton, etc., 1893.) — Third Supplement, i8g2-i8g6. (Boston,
etc., 1897.) — Fourth Supplement, iSgy-igoi. (Boston, etc.,
1902.) — Fifth Supplement; igo2-igo6. (Boston, etc., 1908.)
Continued by Readers' Guide. — The standard guide into
general periodical literature, for its period; of great service
on questions of government. See the next two entries and
the select list of periodicals below.
Readers' Guide to Periodical Literature. (Minneapolis and N. Y.,
1900-.) — Issued monthly and cumulated into annuals and
five year volumes. Indispensable for intensive study and
topic work.
Readers^ Guide to Periodical Literature: Supplement. (N. Y.,
1913-.) — ^ Begins with 1907. Indexes periodicals not in-
cluded in main Readers' Guide, also composite books. Now
issued periodically and cumulated into annual and larger
volumes.
II. Histories of the United States Embodying Government
Very few historians have essayed the task of writing a compre-
hensive history of the United States with the colonial beginnings,
except as a text-book for schools. The text-books which pay most
attention to the organization and development of government are :
Edward Channing, Students' History (3d. rev. ed., N. Y., 1913);
Albert Bushnell Hart, Essentials in American History (latest ed.,
N. Y., 1916), and New American History (N. Y., 191 7); Andrew
Cunningham McLaughlin, History of the American Nation (new,
rewritten ed., N. Y., 1913); James Albert Woodburn and Thomas
Francis Moran, American History and Government (N. Y., 1908).
The histories described below cover in detail considerable areas
of the constitutional history of the United States; but without
very distinct treatment of the source and growth of institutions
as they now are : —
Adams, Henry. History of the United States of America during
the Administrations of Jeferson and Madison. (9 vols.,
N. Y., 1889-1891.) — One of the most illuminating works ever
written about American history and institutions.
xxvi Select Bibliography.
Bassett, John Spencer. A Short History of the United States.
(N. Y., 1913.) — Convenient and accurate single volume
history.
Beard, Charles Austin, Contemporary American History, 18/^-
iQij. (N. Y., 1914.) — One of the few volumes on the most
recent period, covering the questions of trusts and trans-
portation.
Channing, Edward. A History of the United States. (4 vols,
pub., to 1815, N. Y., 1905-.) — A great work by a renowned
scholar.
DoDD, William Edward, editor. The Riverside History of the
United States. (4 vols., Boston, etc., 1915.) — ^ Volumes by
C. L. Becker, AUen Johnson, W. E. Dodd and F. L. Paxson.
Convenient smaU volumes prepared by competent writers.
Fish, Carl Russell. The Development of American Nation-
ality. (N. Y., etc., 1913.) — To be preceded by a com-
panion volume by E. B. Greene on the earlier period.
Hart, Albert Bushnell, editor. The American Nation: a
History. (28 vols., N. Y., 1904-1918.) — Many chapters
on constitutional development and economic and social
questions. Especially useful on the governmental questions
of the last half century. Comes down to 191 7.
Hart, Albert Bushnell, editor. Epochs of American History.
(3 vols., rev. ed., N. Y., 1909-1915.) — Three volumes, by
Reuben Gold Thwaites, Albert BushneU Hart, and Woodrow
Wilson, covering American history from the discovery till
near the present day; with bibliographies and chapter bib-
liographies.
Home University Library of Modern Knowledge. (5 vols., N. Y.,
1911-1914.) — Five volumes on American history in a
series on general knowledge, written by C. M. Ajidrews,
T. C. Smith, William MacDonald, F. L. Paxson, and P. L.
Haworth. A useful cooperative work, from modern polit-
ical economic standpoint.
McMaster, John Bach. History of the People of the United
States from the Revolution to the Civil War. (8 vols., N. Y.,
1883-1913.) — -Covers the period from 1783 to 1861 and
Histories. xxvii
deals habitually with social rather than constitutional ques-
tions.
Oberholtzer, Ellis Paxson. A History of the JUnited States
since the Civil War. (N. Y., 191 7-.) — The one volume
published reaches to 1868.
Rhodes, James Ford. History of the United States from the
Compromise of 1850. (7 vols., N. Y., 1893-1906.) — A mas-
ter work. Excellent in discussions as to the nature of the
Union. Comes down to 1877, and is to be continued.
ScHOULER, James. History of the United States of America
under the Constitution. (7 vols., rev. ed., N. Y., 1895-
1913.) — Covers the field from 1780 to 1877, but takes
rather the political than the institutional standpoint.
Stanwood, Edward. A History of the Presidency. (2 vols.,
Boston, etc., 1916.) — A revision of his History of Presiden-
tial Elections. Contains a carefvd account of every presi-
dential election, with platforms, votes, etc.
III. Advanced Text-Books in Government.
Out of a large munber of text-books for the high school or early
college grade the following occupy themselves with the operation
as well as the framework of government, and include state and
city as well as national government.
Ashley, Roscoe Lewis. The American Federal State; its His-
torical Development, Government and Policies. (Rev. ed.,
N. Y., 1911.) — A comprehensive and useful book.
Beard, Charles Austin. American Government and Politics.
(New and rev. ed., N. Y., 1914.) — See above.
Bryce, James. The American Commonwealth. (Abridged ed.,
rev., N. Y., 1906.) — Prepared for class use, but still rather
full for a text-book, and inferior to the larger edition in ful-
ness of treatment and interesting Ulustration. See note on
the full work below.
FoRMAN, Samuel Eagle. Advanced Civics. (N. Y., 1905.) —
A good text-book.
Garner, James Wilford. Government in the United States,
National, State and Local. (N. Y., etc., 191 1.) — Especially
interested in the meaning and purpose of government.
xxviii Select Bibliography.
Hinsdale, Burke Aaron. The American Government, National
and State. (4th ed., Chicago, 1917.)^ — A good, safe, sane
book, with abundant reference to actual practice. Only one
brief chapter on local government.
Reed, Thomas Harrison. Forms and Functions of American
Government. (Yonkers, 1916.) — An ingenious and search-
ing book; great range of topics. Strong on action.
WiLLOUGHBY, Westel Woodbury. The American Constitutional
System; an Introduction to the Study of the American State.
{American State Series. N. Y., 1904.) ■ — Brief and sugges-
tive; especially useful to advanced students.
Wilson, Woodrow. Constitutional Government in the United
States. (N. Y., 1908.) — A summary of the author's views.
Woodburn, James Albert. The American Republic and its
Government; an Analysis of the Government of the United
States. (2d. ed., rev., N. Y., 1916.) — Many apt illustrations
of practice.
Young, James Thomas, The New American Government and its
Work. (N. Y., 1915.) '
IV. Constitutional Treatises.
All the formal treatises on the constitutional law of the United
States review the make-up of the national government and dis-
cuss its powers. A few of them discuss state and local government.
Few of the treatises written before the Civil War now have weight
of authority, except the classics like Story, which has been
published in successive critical editions. Through the foot-notes
to the treatises, both to cases and to historical works, we may
reach first-hand material of the highest value, bearing on all sides
of American government ; for they refer both to state and federal
cases. The principal modern treatises are as follows : —
Black, Henry Campbell. Handbook of American Constitu-
tional Law. (2d. ed., St. Paul, 1897.) — A thorough book,
which of course does not reach the most pressing questions
of today.
Brannon, Henry. A Treatise on the Rights and Privileges
guaranteed by the Fourteenth Amendment to the Constitution
of the United States. (Cincinnati, 1901.) — Useful on many
questions of social legislation.
Treatises. xxix
Brown, David Walter. The Commercial Power of Congress,
considered in the Light of its Origin. (N. Y., etc., igio.)
Cooke, Frederick Hale. The Commerce Clause of the Federal
Constitution. (N. Y., 1908.)
CooLEY, Thomas McIntyre. The General Principles of Con-
stitutional Law in the United States of America. (3d ed., rev.
by A. C. McLaughlin, Boston, 1898.) — A good condensed
treatise on the subject, by a great constitutional lawyer.
Freund, Ernst. The Police Power, Public Policy and Con-
stitutional Rights. (Chicago, 1904.) — Applies to funda-
mental questions of the extent of governmental powers.
GooDNOW, Frank Johnson. The Principles of the Adminis-
trative Law of the United States. (N. Y., etc., 1905.) — The
standard on a subject which is fundamental.
GoODNOW, Frank Johnson. Principles of Constitutional Gov-
ernment. (N. Y., etc., 1916.) — A study of the foundations
of government. Easy in style.
Hall, James Parker. Constitutional Law. (Chicago, 191 1.)
McClain, Emlin. Constitutional Law in the United States.
(American Citizen Series. 2d. ed., N. Y., 1910.) — A brief,
systematic work, clear, authoritative, and modern.
Miller, Samuel Freeman. Lectures on the Constitution of the
United States. (N. Y., 1891.) — By a justice of the Supreme
Court.
Story, Joseph. Commentaries on the Constitution of the United
States, with a Preliminary Review of the Constitutional History
of the Colonies and States before the Adoption of the Constitu-
tion. (Published originally in 1833. Cooley's 4th and
Bigelow's sth editions are the best. 2 vols., Boston, 1873,
1 89 1.) — StiU an excellent commentary on the Constitution;
lucid, clear, prophetic.
Tucker, John Randolph. The Constitution of the United
States: a Critical Discussion of its Genesis, Development, and
Interpretation. (2 vols., Chicago, 1899.) — By a southern
publicist; an extensive and thoughtful work.
WiLLOUGHBY, Westel Woodbury. The Constitutional Law of
the United States. (2 vols., N. Y., 1910.) — Most serviceable
elaborate work for students.
XXX Select Bibliography.
WiLLOUGHBY, Westel Woodbury. Principles of the Constitu-
tional Law of the United States. (N. Y., 1914.) — A restate-
ment of his Constitutional Law. Very useful to students.
Wyman, Bruce. The Principles of Administrative Law governing
the Relations of Public Officers. (St. Paul, 1903.) — Valu-
able aid.
V. Discussions of American Government.
A. American Discussions.
Besides the works which aim to give some complete picture of
American government or of the federal constitutional system,
many useful books take up phases of the system, or discuss the
main underlying principles, or criticize the system as a whole.
Some of these books are collections of essays. Among the most
useful may be mentioned the following: —
Beard, Charles Austin. An Economic Interpretation of the Con-
stitution of the United States. (N. Y., 1913.) — An attempt
to show a conscious purpose to make the Constitution a
defense of the propertied classes.
Cleveland, Frederick Albert. Organized Democracy; an In-
troduction to the Study of American Politics. {American
Citizen Series. N. Y., 1913.) — Searching discussion of the
basis of American government.
Cor WIN, Edward Samuel. The Doctrine of Judicial Review,
its Legal and Historical Basis, and other Essays. (Princeton,
1914.)
Croly, Herbert. Progressive Democracy. (N. Y., 1914.) — The
Promise of American Life. (N. Y., 1910.)
Eliot, Charles William. American Contributions to Civiliza-
tion, and other Essays and Addresses. (N. Y., 1897.) — The
principles and workings of American democracy. Written
in an interesting style by a man of great experience who
believes in democracy.
Fisher, Sydney George. The Evolution of the Constitution.
(Philadelphia, 1897.) — Precedents for the provisions of the
Constitution.
American Discussions. xxxi
Hart, Albert Bushnell. National Ideals historically traced.
(American Nation Series. N. Y., 1907.) — An account of
the origin and development of American government in
parallel topics.
McLaughlin, Andrew Cunningham, and Hart, Albert Bush-
nell, editors. Cyclopedia of American Government. (3 vols.,
N. Y., 1914.) — Nmnerous articles on American democracy.
Use the Index and the abundant cross references.
Macy, Jesse, and Gannaway, John Walter. Comparative Free
Government. (N. Y., 1915.) Considerable part on American
government.
Roosevelt, Theodore. Essays on Practical Politics. (N. Y.,
etc., 1888.) — American Ideals and other Essays, Social and
Political. (N. Y., 1897.) — The Strenuous Life: Essays and
Addresses. (N. Y., 1900.) — Of these three volumes, part
of the Practical Politics is reprinted in American Ideals. They
include one of the best inside surveys of state and local
poUtics available to students.
Stimson, Frederic Jesup. Popular Law-Making; a Study of
the Origin, History, and Present Tendencies of Law-Making
by Statute. (N. Y., 1910.) — A study of the appUcation of
law to social and industrial problems.
WiLLOUGHBY, Westel Woodbury, editor. The American State
Series. (8 vols., N. Y., 1904-1908.) — See above. The edi-
tor's volume. The American Constitutional System, is an ex-
cellent summary of the principles of American government.
Wilson, Woodrow. The State: Elements of Historical and
Practical Politics. (Rev. ed., Boston, 1898.) — An account
of governments in general from the earliest times. Chap-
ter xi is an excellent summarized description, in about a
hundred pages, of government in the United States, including
that in the states.
B. Foreign Discussions of American Government.
The foreign criticisms of American government during the last
half century have been in the main kindly, especially the works
of Bryce and De Tocqueville.
xxxii Select Bibliography.
Bryce, James. The American Commonwealth. (2 vols., new
[4th] ed., rev., N. Y., 1910.) — The best description of the
American system, drawn by a keen and impartial observer.
A meaty and complete book, every sentence of which has
meaning. By its exactitude of style and quality of tone the
book is well fitted to be a basis for class work. It is especially
rich on state and local government.
Dicey, Albert Venn. Introduction to the Study of the Law of
the \_Britislf\ Constitution. (8th ed., London, 1915.) — A
classic study of the origins of our government.
Gladstone, William Ewart. Kin beyond Sea. (Reprinted,
from North American Review, CXXVII, 179-212, in Gleanings
of Past Years, I, ch. viii, London, 1879.) — Contains the
famous eulogy of our Constitution.
Low, Alfred Maurice. The American People, a Study in
National Psychology. (2 vols., Boston, etc., 1909-1911.) —
The most recent foreign criticism.
MmRHEAD, James Fullarton. America, the Land of Contrasts:
a Briton's View of his American Kin. (3d ed., London,
1902.) — One of the best British views.
OsTROGORSKi, MoiseL Democracy and the Organization of Politi-
cal Parties. (Translated by Frederick Clarke. 2 vols., N. Y.,
1902.) — Written by a Russian, who made his observations
on the spot.
Tocqueville, Alexis de. Democracy in America. (2 vols.,
Paris, 1 83 5-1 840. The most available translation is by
Henry Reeve; various eds.) — ■ After the lapse of eighty years,
stUl a profound and suggestive book. The first writer to
comprehend the significance of town government.
VI. Books on Forms of Government.
A. Popular Government.
Bacon, Edwin Munroe, and Wyman, Morrill. Direct Elec-
tions and Law-Making by Popular Vote; the Initiative, the
Referendum, the Recall, Commission Government for Cities,
Preferential Voting. (Boston, etc., 191 2.)
Barnett, James Duff. The Operation of the Initiative, Referen-
dum and Recall in Oregon. (N. Y., 1915.)
Forms of Government. xxxiii
Commons, John Rogers. Proportional Representation. (2d ed.,
N. Y., etc., 1907.)
Hadley, Arthur Twining. The Education of the American
Citizen. (N. Y., 1902.) — Chiefly on the need of training
public opinion.
Kales, Albert Martin. Unpopular Government in the United
States. (Chicago, 1914.)
King, Clyde Lyndon, editor. The Initiative, Referendum and
Recall. (Philadelphia, 191 2. Am. Acad, of Pol. and Soc,
Sci. Annals, Vol. XLIII.)
LoBiNGiER, Charles Sumner; The People's Law; or, Popular
Participation in Law-Making from Ancient Folk-Moot to
Modern Referendum. (N. Y., 1909.)
Lowell, Abbott Lawrence. Public Opinion and Popular Gov-
ernment. {American Citizen Series. N. Y., 1913.)
McKinley, Albert Edward. The Suffrage Franchise in the
Thirteen English Colonies in America. (Philadelphia, 1905.)
Merriam, Charles Edward. History of American Political
Theories. (N. Y., etc., 1903.) — Primary Elections, a Study
of the History and Tendencies of Primary Election Legislation.
(Chicago, 1909.)
Oberholtzer, Ellis Paxson. The Referendum in America;
together with some Chapters on the Initiative and the Recall.
(New ed., N. Y., 1911.)
Taft, William Howard. Popular Government; its Essence, its
Permanence and its Perils. (New Haven, 1913.)
Wendell, Barrett. Liberty, Union, and Democracy: the Na-
tional Ideals of America. (N. Y., 1906.) — A brilliant
characterization of American traits.
Wilcox, Delos Franklin. Government by all the People; or,
the Initiative, the Referendum, and the Recall as Instruments
of Democracy. (N. Y., 1912.)
B. Parties and Politics.
Bishop, Joseph Bucklin. Our Political Drama; Conventions,
Campaigns, Candidates. (N. Y., 1904.)
Brooks, Robert Clarkson. Corruption in American Politics
and Life. (N. Y., 1910.)
xxxiv Select Bibliography.
Ford, Henry Jones. The Rise and Growth of American Politics:
a Sketch of Constitutional Development. (N. Y., 1898.) — A
serviceable work, chiefly on party and popular government.
GooDNOW, Frank Johnson. Politics and Administration: a
Study in Government. (N. Y., 1900.) — Divergence of the
actual from the formal system of government.
Griffith, Elmer Cummings. The Rise and Development of the
Gerrymander . (Chicago, 1907.)
Haynes, Frederick Emory. Third Party Movements since the
Civil War, with Special Reference to Iowa; a Study in Social
Politics. (Iowa City, 19 16.)
Long, John Davis. The Republican Party; its History, Prin-
ciples, and Policies. (N. Y., 1888.)
McCarthy, Charles. The Antimasonic Party; a Study of
Political Antimasonry in the United States, 18 27-1 840.
(Washington, 1903. Am. Hist. Assoc, Report for igo2,
I- 365-574-)
Macy, Jesse. Political Parties in the United States, 1846-1861.
(N. Y., 1900.)
Myers, Gustavus. A History of Tdmmany Hall. (2d ed.,
rev. and enlarged, N. Y., 191 7.)
Ray, Perley Orman. An Introduction to Political Parties and
Practical Politics. (New and rev. ed., N. Y., 1917.) — Fresh
and suggestive. Full bibliography.
Sloane, William Milligan. Party Government in the United
States of America. (N. Y., etc., 1914.)
WooDBURN, James Albert. Political Parties and Party Prob-
lems in the United States; a Sketch of American Party History
and of the Development and Operations of Party Machinery,
together with a Consideration of Certain Party Problems in their
Relations to Political Morality. (2d. ed., rev. and enlarged,
N. Y., etc., 1914.)
VII. Three G-roups oif Government.
A. State Government. '
Baldwin, Simeon Eben. Modern Political Institutions. (Bos-
ton, 1898.) — Various questions of jurisprudence and govern-
ment, with a valuable discussion of state constitutions.
Groups of Government. xxxv
CooLEY, Thomas McIntyre. A Treatise on the Constitutional
Limitations which rest upon the Legislative Power of the States
of the American Union, (yth ed., rev. by V. H. Lane, Bos-
ton, 1903.) — One of the few systematic books on state
government, by a master of the subject.
Dealey, James Quayle. Growth of American State Constitutions
from iy/6 to the End of the Year IQ14. (Boston, etc., 191 5.)
DoDD, Walter Fairleigh. The Revision and Amendment of
State Constitutions. (Baltimore, 1910.)
Fairlie, John Archibald. The Centralization of Administration
in New York State. (N. Y., 1898. Colimibia University,
Studies in History, Economics, and Public Law, Vol. IX, No. 3.)
Greene, Evarts Boutwell. The Provincial Governor in the
English Colonies of North America. (N: Y., 1898. Harvard
Historical Studies, No. 7.)
Hoar, Roger Sherman. Constitutional Conventions, their Nature,
Powers, and Limitations. (Boston, 191 7.)
HoLCOMBE, Arthur Norman. State Government in the United
States. (N. Y., 1916.) — See note above.
Jameson, John Alexander. A Treatise on Constitutional Con-
ventions, their History, Powers, and Modes of Proceeding. (4th
ed., Chicago, 1887.)
Jones, Chester Lloyd. Statute Law Making in the United
States. (Boston, 1912.)
Kettleborough, Charles, editor. The State Constitutions and
the Federal Constitution and Organic Laws of 'the Territories
and other Colonial Dependencies of the United States of Amer-
ica. (Indianapolis, 1918.)
Mathews, John Mabry. Principles of American State Adminis-
tration. (N. Y., etc., 1917.) — Learned and suggestive.
Reinsch, Paul Samuel. Colonial Government; an Introduction
to the Study of Colonial Institutions. (N. Y., etc., 1902.)
B. City Government.
Beard, Charles Austin. American City Government; a Survey
of Newer Tendencies. (N. Y., 1912.)
Bradford, Ernest Sihth. Commission Government in American
Cities. (N. Y., 1911.)
xxxvi Select Bibliography.
CooLEY, Roger William. Handbook of the Law of Municipal
Corporations. (St. Paul, 1914.) — ■ Recent and authentic.
Dillon, John Forrest. Commentaries on the Law of Municipal
Corporations. (5 vols., sth ed., Boston, 1911.) — A standard
law book on the subject, by a great corporation lawyer.
Fairlie, John Archibald. Municipal Administration. (N. Y.,
1901.)
Hatton, Augustus Raymond, editor. Digest of City Charters,
together with other Statutory and Constitutional Provisions
relating to Cities. (Chicago, 1906. Chicago Charter Con-
vention.)
Howe, Frederic Clemson. The City the Hope of Democracy.
(N. Y., 1905.)
McBain, Howard Lee. The Law and Practice of Municipal
Home Rule. (N. Y., 1916.)
McQuiLLiN, Eugene. A Treatise on the Law of Municipal
Corporations. (6 vols., Chicago, 1911-1913.)
MuNRO, William Bennett. The Government of American Cities.
(New and rev. ed., N. Y., 1916.) — Principles and Methods
of Municipal Administration. (N. Y., 191 6.)
Steffens, Lincoln. The Shame of the Cities. (N. Y., 1904.)
Wilcox, Delos Franklin. The American City: a Problem in
Democracy. {Citizen's Library. N. Y., 1904.) — Municipal
Franchises; a Description of the Terms and Conditions upon
which Private Corporations enjoy Special Privileges in the
Streets of American Cities. (2 vols., Rochester, 1910-1911.)
ZuEBLiN, Cha*rles. American Municipal Progress. (Rev. ed.,
N. Y., 1916.)
C. National Government.
Alexander, De Alva Stanwood. History and Procedure of the
House of Representatives. (Boston, etc., 1916.)
Ames, Herman Vandenburg. The Proposed Amendments to the
Constitution of the United States during the First Century of
its History. (Washington, 1897. Am. Hist. Assoc, Annual
Report for 1896, II.)
Beard, Charles Austin. The Supreme, Court and the Constitu-
tion. (N. Y., 1912.)
Groups of Government. xxxvii
BizzELL, William Bennett. Judicial Interpretation of Political
Theory; a Study in the Relation of the Courts to the American
Party System. (N. Y., etc., 1914.)
Carson, Hampton Lawrence. The Supreme Court of the United
States: its History. (2 vols., Philadelphia, 1892.)
Fairlie, John ARcmsALD. The National Administration of the
United States of America. (N. Y., 1905.)
Farrand, Max. Framing of the Constitution of the United
States. (New Haven, 19 13.)
Fish, Carl Russell. The Civil Service and the Patronage.
(N. Y., 1905. Harvard Historical Studies, No. 11.)
Follett, Mary Parker. The Speaker of the House of Representa-
tives. (N. Y., 1896.) — A book much extolled by ex-speakers
and other public men, as one of the most clear-sighted dis-
cussions of the legislative side of the federal government.
Fuller, Hubert Bruce. The Speakers of the House. (Boston,
1909.)
Haines, Charles Grove. The American Doctrine of Judicial
Supremacy. (N. Y., 1914.)
Haynes, George Henry. Election of Senators. (N. Y., 1906.)
Hill, John Philip. The Federal Executive. (Boston, etc., 1916.)
Hinsdale, Mary Louise. A History of the President's Cabinet.
(Ann Arbor, 191 1.) — Standard on its subject.
Hunt, Gaillard. The Department of State of the United States;
its History and Functions. (New Haven, 1914.)
Ingersoll, Lurton Dunham. A History of the War Depart-
ment of the United States. (Washington, 1879.)
Kerr, Clara Hannah. The Origin and Development of the
United States Senate. (Ithaca, 1895.)
Learned, Henry Barrett. The President's Cabinet; Studies
in the Origin, Formation, and Structure of an American In-
stitution. (New Haven, 191 2.)
McCall, Samuel Walker. The Business of Congress. (N. Y.,
1911.)
McCoNACHiE, Lauros G. Congressional Committees; a Study
of the Origins and Development of our National and Local
Legislative Methods. (N. Y., 1898.)
xxxviii Select Bibliography.
McLaughlin, Andrew Cunningham. The Courts, the Con-
stitution and Parties; Studies in Constitutional History and
Politics. (Chicago, 191 2.)
Mason, Edward Campbell. The Veto Power: its Origin,
Development, and Function in the Government of the United
States, I78g~i88g. (Boston, 1890.)
Salmon, Lucy Maynard. History of the Appointing Power of
the President. (N. Y., 1886. Am. Hist. Assoc, Papers,
L No. 5.)
Taft, William Howard. Our Chief Magistrate and his Powers.
(N. Y., 1916.)
WiLLOUGHBY, Westel Woodbury. The Supreme Court of the
United States; its History and Influence in our Constitutional
System. (Baltimore, 1890.)
Wilson, Woodrow. Congressional Government: a Study in Amer-
ican Politics. (Boston, etc., 1885.) — A criticism of the
American "congressional" or "committee" system, as com-
pared with the responsible cabinet system.
VIII. Functions of Government.
A. Territorial and International.
Brigham, Albert Perry. Geographic Influences in American
History. (Boston, 1903.)
Burr, Charles H. The Treaty-Making Power of the United
States and the Methods of its Enforcement as affecting the
Police Power of the States. (Philadelphia, 191 2.)
CoRWiN, Edward Samuel. National Supremacy; Treaty Power
vs. State Power. (N. Y., 1913.)
Crandall, Samuel Benjamin. Treaties, their Making and En-
forcement. (2d ed., Washington, 1916.)
DoDD, Walter Fairleigh. The Government of the District of
Columbia; a Study in Federal and Municipal Administration.
(Washington, 1909.)
Farrand, Max. The Legislation of Congress for the Government
of the Organized Territories of the United States, lySg-iSQS.
(Newark, 1896.)
Federal Aid in Domestic Disturbances. (Washington, 1903. Sen-
ate Documents, 57 Cong., 2 sess., No. 209.)
Functions of Government. xxxix
Foster, John Watson. A Century of American Diplomacy;
being a Brief Review of the Foreign Relations of the United
States, i^yd-iSyd. (Boston, etc., igoi.) — The Practice
of Diplomacy as illustrated in the Foreign Relations of the
United States. (Boston, etc., 1906.)
Hart, Albert Bushnell. The Monroe Doctrine: an Interpreta-
tion. (Boston, 1916.)
Maclay, Edgar Stanton. A History of the United States Navy
from I'jjs io 1902. (3 vols., new and enlarged ed., N. Y.,
1901.)
Moore, John Bassett. History and Digest of the International
Arbitrations to which the United States has been a Party, to-
gether with Appendices containing the Treaties relating to such
Arbitrations, and Historical and Legal Notes. (6 vols., Wash-
ington, 1898.) — The Principles of American Diplomacy.
(N. Y., 1918.)
Semple, Ellen Churchill. American History and its Geo-
graphic Conditions. (Boston, etc., 1903.)
Van Dyne, Frederick. Our Foreign Service; the A B C of
American Diplomacy. (Rochester, 1909.)
Wilson, Rufus Rockwell. Washington, the Capital City, and its
Part in the History of the Nation. (Philadelphia, etc., 1901.)
B. Financial Business and Transportation.
Bourne, Edward Gaylord. The History of the Surplus Rev-
enue of iSjy; being an Account of its Origin, its Distribution
among the States, and the Uses to which it was applied.
(N. Y., etc., 1885.)
Dewey, Davis Rich. Financial History of the United States.
{American Citizen Series. 6th ed.,N.Y.,i9i8.)
Dunn, Samuel Grace. Government Ownership of Railways.
(N. Y., 1913.)
Ford, Henry Jones. The Cost of our National Government; a
Study in Political Pathology. (N. Y., 1910.)
Hepburn, Alonzo Barton. A History of Currency in the
United States, with a Brief Description of the Currency Systems
in all Commercial Nations. (N. Y., 1915.)
xl Select Bibliography.
Johnson, Emory Richard. Ocean and Inland Water Transpor-
tation. {Appleton's Business Series. N. Y., 1906.) — The
Panama Canal and Commerce. (N. Y., etc., 1916.)
Johnson, Emory Richard, and Huebner, Grover Gerhard.
Principles of Ocean Transportation. {Appleton's Railway
Series. N. Y., etc., 1918.)
Johnson, Emory Richard, and Van Metre, Thurman Wil-
liam. Principles of Railroad Transportation. {Appleton's
Railway Series. N. Y., etc., 1916.)
JuDSON, Frederick Newton. The Law of Interstate Commerce
and its Federal Regulation. (3d ed., Chicago, 1916.) — A
standard book.
Kinley, David. The Independent Treasury of the United States
and its Relation to the Banks of the Country. (Washington,
1910.)
LuTZ, Harley Leist. The State Tax Commission; a Study of
the Development and Results of State Control over the Assess-
ment of Property for Taxation. (Cambridge, 1918. Harvard
Economic Studies, No. 17.)
Means, David MacGregor. The Methods of Taxation com-
pared with the Established Principles of Justice. (N. Y., 191 1 .)
Meyer, Balthasar Henry, editor. History of Transportation
in the United States before i860. (Washington, 191 7.)
Noyes, Alexander Dana. Forty Years of American Finance;
a Short Financial History of the Government and People of
the United States since the Civil War, iSds-igoy. (N. Y.,
etc., 1909.)
Plehn, Carl Copping. Government Finance in the United States.
{National Social Science Series. Chicago, 191 5.) — Introduc-
tion to Public Finance. (3d ed., rev. and enlarged, N. Y., 1909.)
Quick, Herbert. American Inland Waterways; their Relation
to Railway Transportation and to the National Welfare; their
Creation, Restoration and Maintenance. (N. Y., etc., 1909.)
Roper, Daniel Calhoun. The United States Post-Office, its
Past Record, Present Condition, and Potential Relation to the
New World Era. (N. Y., etc., 1917.)
Scott, William Am AS A. The Repudiation of State Debts. (N. Y.,
etc., 1893.)
Functions of Government. xli
Seligman, Edwin Robert Anderson. Essays in Taxation.
(8th ed., rev. and enlarged, N. Y., 1913.) — Principles of
Economics; with Special Reference to American Conditions.
{American Citizen Series. 6th ed., rev. and rewritten, N. Y.,
1914.)
Stanwood, Edward. American Tariff Controversies in the
Nineteenth Century. (2 vols., Boston, etc., 1903.)
Tarbell, Ida Minerva. The Tariff in our Times. (N". Y., 1911.)
Taussig, Frank William. Some Aspects of the Tariff Question.
(Cambridge, 1915. Harvard Economic Studies, No. 12.) —
The Tariff History of the United States. (6th ed., N. Y.,
etc., 1914.)
Thornton, William Wheeler. A Treatise on the Sherman
Anti-Trust Act. (Cincinnati, 1913.)
Treat, Payson Jackson. The National Land System, 1785-
1820. (N. Y., 1910.)
Van Hise, Charles Richard. The Conservation of Natural
Resources in the United States. (N. Y., 1910.)
Veblen, Thorstein B. The Theory of Business Enterprise.
(N. Y., 1904.)
White, Horace. Money and Banking, illustrated by American
History. (5th ed., Boston, etc., 1914.)
C. Social Functions.
Abbott, Edith. Women in Industry; a Study in American
Economic History. (N. Y., etc., 1910.) '
Addams, Jane. Twenty Years at Hull House, with Autobio-
graphical Notes. (N. Y., 1 9 10.)
Commons, John Rogers. Races and Immigrants in America.
(N. Y., etc., 1907.)
Commons, John Rogers, and Andrews, John Bertram. Prin-
ciples of Labor Legislation. (N. Y., etc., 1916.)
CooLiDGE, Mary Roberts. Chinese Immigration. (American
Public Problems. N. Y., 1909.)
Fairchild, Henry Pratt. Immigration, a World Movement and
its American Significance. (N. Y., 1913.)
Godfrey, Hollis. The Health of the City. (Boston, etc., 1910.)
xlii Select Bibliography.
GooDNOW, Frank Johnson. Social Reform and the Constitu-
tion. {American Social Progress Series. N. Y., 1911.)
Hanus, Paul Henry. A Modern School. (N. Y., 1904.)
Hart, Albert Bushnell. The Southern South. (N. Y., 1910.)
Hartt, Rollin Lynde. The People at Play. (Boston, etc.,
1909.)
Hecker, Eugene Arthur. A Short History of Women's Rights,
from the Days of Augustus to the Present Time; with Special
Reference to England and the United States. (2d ed., rev.,
N. Y., 1914.)
Hollister, Horace Adelbert. The Administration of Edu-
cation in a Democracy. (N. Y., 19 14.)
HoxiE, Robert Franklin. Trade Unionism in the United
States. (N. Y., 1917.)
Industrial Commission. Reports. (Washington, 1 900-1 902.)
Jenks, Jeremiah Whipple, and Lauck, William Jett. The
Immigration Problem. (N. Y., etc., 191 2.)
KoREN, John. Economic Aspects of the Liquor Problem. (Bos-
ton, etc., 1899.)
Marot, Helen. American Labor Unions, by a Member. (N. Y.,
1914.)
Martin, William Alexander. A Treatise on the Law of Labor
Unions. (Washington, 19 10.)
Mecklin, John Moffatt. Democracy and Race Friction: a
Study in Social Ethics. (N. Y., 1914.)
Monroe, Paul. A Text-Book in the History of Education.
(N. Y., etc., 1905.)
Peabody, Francis Greenwood. The Approach to the Social
Question; an Introduction to the Study of Social Ethics.
(N. Y., 1909.)
Riis, Jacob August. The Children of the Poor. (N. Y., 1892.)
— How the Other Half lives; Studies among the Tenements
of New York. (N. Y., 1890.)
Schaff, Philip. Church and State in the United States. (N. Y.,
1888. Am. Hist. Assoc, Papers, II. No. 4.)
Stephenson, Gilbert Thomas. Race Distinctions in American
Law. (N. Y., etc., 1910.)
Functions of Government. xliii
Thwing, Charles Franklin. A History of Education in the
United States since the Civil War. (Boston, etc., 1910.)
Train, Arthur. The Prisoner at the Bar; Sidelights on the
Administration of Criminal Justice. (2d ed., N. Y., 1908.)
Warner, Harry Sheldon. Social Welfare and the Liquor
Problem; Studies in the Sources of the Problem and how they
relate to its Solution. (Rev. ed., Chicago, 1913.)
Wines, Frederick Howard, and Koren, John. The Liquor Prob-
lem in its Legislative Aspects. (2d ed., Boston, etc., 1897.)
Wines, Frederick Howard. Punishment and Reformation; an
Historical Sketch of the Rise of the Penitentiary System. (2d
ed., N. Y., 1910.)
Woollen, William Watson, and Thornton, William Whee-
ler. Intoxicating Liquors; the Law relating to the Traffic in
Intoxicating Liquors and Drunkenness. (2 vols., Cincinnati,
1910.)
IX. Periodicals containing Materials on American
Government.
American Academy of Political and Social Science. Annals.
(Philadelphia, 1890-. 78 vols, to 1918.) — Especially inter-
ested in government.
American Historical Review. (N. Y., 1895-. 23 vols, to 1918.
General indexes to first 20 vols.)
American Law Review. (Boston and St. Louis, 1866-. 52 vols.
to 1918.)
American Political Science Review, • (Baltimore, 1906-. 12 vols.
to 1918.) — Very serviceable to the subject.
American Year Book; a Record of Events and Progress. (Annual
since 1910. N. Y., 1911-.)
Atlantic Monthly. (Boston, 1857-. 122 vols, to 1918.) — Very
many articles on actual government, by experienced public
men.
Forum. (N. Y., 1886-. 60 vols, to 1918.) — Many discussions
by public men.
Independent. (N. Y., 1848-. 95 vols, to 1918.) — Since 1898
issued as a magazine.
xliv Select Bibliography.
International Year Book: a Compendium of the World's Progress.
(N. Y., 1899-1903, 1908-.) — Covers the years 1898-1902,
1907-.
Nation. (N. Y., 1865-. 107 vols, to 1918.) — Invaluable for
its views and its comments on public affairs, but very pessi-
mistic.
National Municipal Review. (Baltimore, 191 2-. 7 vols, to 1918.)
New Republic — A Journal of Opinion. (N. Y., 1914-. 16 vols.
to 1918.)
North American Review. (Boston and N. Y., 1815-. 208 vols.
to 1918.) — A repository of great value.
Outlook. (N. Y., 1867-. 120 vols, to 1918.) — Until 1893,
called the Church Union and Christian Union.
Political Science Quarterly. (Boston, 1886-. 33 vols, to 1918.)
— A thorough and weU-edited American periodical.
Statesman's Year Book. (London, 1864-. 54 annual vols, to
1918.) — Statistical and descriptive.
Survey. (N. Y., 1897-. 40 vols, to 1918.) — The title varies in
the early volumes.
Unpopular Review. (N. Y., 1914-. 10 vols, to 1918.)
World's Work. (N. Y. and Garden City, 1900-. 36 vols, to
1918.)
Yale Review. (New Haven, 1892-. 26 vols, to 1918.)
X. Principal Sources in American Government.
The ultimate sources of knowledge on American government
are much harder to reach than in history. The final will of the
people is expressed in legislative action of many kinds, recorded
in many places; such as constitutions, constitutional amendments,
■ treaties, national statutes, state statutes, city ordinances. Execu-
tive action is expressed in an enormous mass of messages, vetoes,
nominations, executive decisions, votes of administrative boards,
and orders to inferior officials. The courts express their findings
in decisions, which are printed and digested; and also in decrees,
orders, reports, and the like, which may exist only in manuscript
records.
The best that can be done here is to indicate a few of the serv-
iceable collections of material. Lists of collections of sources
Sources. xlv
and specific references, both by origin and by topics, may be found
in the following works: New England History Teachers' Associa-
tion, Historical Sources in Schools (N. Y., 1902); Channing, Hart,
and Turner, Guide to the Study and Reading of American History
(Boston, 191 2); Albert Bushnell Hart, American History told by
Contemporaries (4 vols., N. Y., 1897-1901), Introduction to each
of the volumes.
A. Collections of Readings and Documents for Class Use.
The study of actual government is made easier by numerous
collections of documents and of extracts from sources and second-
ary discussions. They make possible the method of parallel
readings for large classes.
Ames, Herman Vandenburg, editor. State Documents on Federal
Relations. (6 nos., Philadelphia, 1900-1906.) — Also pub-
lished in a collected volume (1907).
Beard, Charles Austin, editor. Readings in American Govern-
ment and Politics. (N. Y., 1909.)
Beard, Charles Austin, and Shultz, Birl Earl, editors.
Doctiments on the State-Wide Initiative, Referendum and Recall.
(N. Y., 1912.)
BoGART, Ernest Ludlow, and Thompson, Charles Manfred,
editors. Readings in the Economic History of the United
States. (N. Y., etc., 1916.)
Callender, Guy Stevens, editor. Selections from the Economic
History of the United States, 1765-1860, with Introductory
Essays. (Boston, etc., 1909.)
Hart, Albert Bushnell, and Channing, Edward, editors.
American History Leaflets. (36 nos., N. Y., 1892-1910.) —
Contain many ordinances, colonial and other statutes, and
public correspondence. Purchasable separately for class
study.
Hart, Albert Bushnell, editor. American History told hy
Contemporaries. (4 vols., N. Y., 1897-1901.) — A general
topical index at the end of the fourth volume leads to many
pieces on government in action.
Hill, Mabel, editor. Liberty Documents: with Contemporary
Exposition and Critical Comments drawn from Various Sources.
xlvi Select Bibliography.
(N. Y., 1901.) — Both English and American documents on
personal liberty; convenient and serviceable.
Johnson, Allen, editor. Readings in American Constitutional
History, i^'/d-iSyd. (Boston, etc., 191 2.)
Jones, Chester Lloyd, editor. Readings on Parties and Elec-
tions in the United States. (N. Y., 1912.)
MacDonald, William, editor. 'Select Charters and other Doc-
uments illustrative of American History, idod-iy/^. (N. Y.,
1904.) — Select Documents illustrative of the History of the
United States, i'j'j6-i86i. (N. Y., 1898.) — Select Statutes
and other Documents illustrative of the History of the United
States, i86i-i8g8. (N. Y., 1903.) — Three useful collections
of foundation documents. — Documentary Source Book of
American History, 1606-igij. (New and enlarged ed.,
N.Y., 1916.) — This abridgment of the other volumes also
contains later documents.
Mead, Edwin Doak, and others, editors. Old South Leaflets.
(Boston, 1883-. 207 numbers to 1918.) — To be had sep-
arately or in volumes; many good pieces.
Orth, Samuel Peter, editor. Readings on the Relation of
Government to Property and Industry. (Boston, 1915.)
Phillips, Chester Arthur, editor. Readings in Money and
Banking. (N. Y., 1916.)
Reinsch, Paul Samuel, editor. Readings on American Federal
Government. (Boston, etc., 1909.) — Readings on American
State Government. (Boston, etc., 191 1.)
B. Constitutional Texts and Sources.
Elliot, Jonathan, editor. Debates in the several State Con-
ventions on the Adoption of the Federal Constitution, . . .
Journal of the Federal Convention. (4 vols., 2 ed., Washing-
ton, 1836.) ■ — His Debates on the Adoption of the Federal
Constitution (Madison's notes; Washington, 1845) is generally
called Vol. V of the Debates.
Farrand, Max, editor. The Records of the Federal Convention
of I'jSj. (3 vols.. New Haven, 191 1.) Definitive edition.
Kettleborough, Charles, editor. The State Constitutions and
the Federal Constitution and Organic Laws of the Territories
Sources. xlvii
and other Colonial Dependencies of the United States of America.
(Indianapolis, 1918.)
Richardson, James Daniel, editor. A Compilation of the Messages
and Papers of the Presidents, lySg-iSgy. (10 vols., Washing-
ton, 1896-1899.) — -This is the governmental edition. There
is also a private edition in 11 vols. (N. Y., 1907) which comes
down to 1905. — A collection poorly put together, but in-
dispensable for the study of American government.
Thorpe, Francis Newton, editor. The Federal and State Consti-
tutions, Colonial Charters, and other Organic Laws of the States,
Territories, and Colonies now or heretofore forming the United
States of America. (7 vols., Washington, 1909. House Docu-
ments, 59 Cong., 2 sess., No. 357.) —Poorly edited, but useful.
C. Select Constitutional Cases.
Boyd, Carl Evans, editor. Cases on American Constitutional
Law. (2d ed., Chicago, 1907.) — Practically a selection out
of Thayer's cases; a handy single volume.
Evans, Lawrence Boyd. Leading Cases on American Constitu-
tional Law. (Chicago, 191 6.)
McClain, Emlin, editor. A Selection of Cases on Constitutional
Law. (2d. ed., Boston, 1909.) — Larger than Boyd, smaller
than Thayer; weU selected.
Thayer, James Bradley, editor. Cases on Constitutional Law;
with Notes. (2 vols., Cambridge, Mass., 1895.) — The best
historical collection of constitutional cases, both national
and state; selected by a great lawyer.
Wambaugh, Eugene. A Selection of Cases on Constitutional
Law. (4 vols., Cambridge, 1914-1915.)
D. Government Publications.
A vast amount of valuable material is entombed in the printed
documents of Congress. These are made available by several
indexes, which are described in Channing, Hart, and Turner,
Guide to the Study and Reading of American History, § 26.
The most important of the aids are:
Greely, Adolphus Washington. Public Documents of the First
Fourteen Congresses. (Washington, 1900. Senate Docu-
ments, 56 Cong., I sess., No. 428.)
xlviii Select Bibliography.
United States. Catalogue of the Public Documents of Congress
and of all the Departments of the Government of the United
States from March 3, i8qj. (Washington, 1896-. 11 vols,
to 1915, covering the period 1893-1913.)
U^^:TED States. Checklist of United States Public Documents,
ijSg-igog. Vol. I. List of Congressional and Departmental
Publications. (3d ed., rev. and enlarged, Washington, 1911.)
United States. Tables of, and Annotated Index to, the Congres-
sional Series of United States Public Documents. (Washing-
ton, 1902.) — Part II of a checklist of all the government
publications up to 1893.
E. Debates of Public Deliberative Bodies.
The federal debates have for many years been published in full,
as follows: —
Annals of Congress, 1 789-1824. (42 vols., Washington, 1834-
1856.) — Register of Debates in Congress, 1824-1837. (29
vols., Washington, 1825-1837.) — The Congressional Globe:
containing Sketches of the Debates and Proceedings, 1833-1873.
(109 vols., Washington, 183 5-1 873.) — Congressional Record,
1873-. (Washington, 1873-.)
No state publishes verbatim reports of legislative debates; a
few cities publish them in official newspaper or like forms; but
they are hard to find.
i F. Statutes.
All the states publish their statutes periodically, and from time
to time print Revised Statutes, including the laws in force. An
annual summary of great service is
New York State Library. Bulletin: Legislation. (Nos. 1-39,
Albany, 1891-1910.) — The series comprises Comparative
Summary and Index of State Legislation, 1 890-1 904; Review
of Legislation, 1901-1908; Digest of Governors' Messages,
1902-1908; Index of Legislation, 1905-1908; and a few
numbers on special subjects.
City and other local governments collect and publish their ordi-
nances from time to time, in forms easy to preserve when they
first come out.
Sources. xlix
The federal government publishes its statutes in various forms,
chiefly as foUows:
Statutes at Large . . . and . . . Treaties, Conventions, Executive
Proclamations and the Concurrent Resolutions of the Two
Houses of Congress. (39 vols, to 191 7. Boston, 1846-
1873, Washington, 1875-.) — This ofi&cial collection of
federal laws contains also the treaties.
Revised Statutes . . . embracing the Statutes of the United States,
General and Permanent in their Nature, in force on the First
Day of December, one thousand eight hundred and seventy-three.
(2d. ed., Washington, 1878.) — Supplement to the Revised
Statutes of the United States, 1874-igoi. (Washington, 1891,
1901. 2 vols.)
Mallory, John Allan, compiler. United States Compiled Stat-
utes, annotated, I gi 6. (12 vols., St. Paxil, 1916-1917.) —
The latest and best compilation.
Malloy, William M., compiler. Treaties, Conventions, Inter-
national Acts, Protocols and Agreements between the United
States of America and other Powers, 1776-igoQ. (2 vols.,
Washington, 1910. Senate Documents, 61 Cong., 2 sess..
No. 357.) — Continued by Garfield Charles to 1913. (Wash-
ington, 1913. Ibid., 62 Cong., 3 sess.. No. 1063.)
Scott, George Wineield, Beaman, Middleton G., and others.
Index Analysis of the Federal Statutes. (2 vols., Washington,
1 908-1 9 1 1.) — Covers the general and permanent laws, and
revised statutes, to 1907.
G. Judicial and Administrative Decisions.
The reports of the United States Supreme Court, those of the
inferior federal courts, and those of the state supreme courts, are
published in several forms, both official and unofficial, including
condensations; and are made available through many digests.
For full titles to federal reports and reprints, and to the
digests through which state reports can be reached, see Albert
Bushnell Hart, Manual of American History, Diplomacy, and
Government, § 18.
The opinions of the Attorneys General of the United States,
and the decisions of the Interstate Commerce Commission, Court
of Claims, Commissioner of Patents, Commissioner of Pensions,
1 Select Bibliography.
and Commissioner of Public Lands, are separately published.
Full titles will be found in Albert Bushnell Hart, Manual, § 68.
The decisions may be most conveniently reached by the fol-
lowing:
Century Edition of the American Digest; a Complete Digest of all
Reported American Cases from the Earliest Times to i8g6.
(so vols., St. Paul, 1897-1904.) — Decennial Edition, 18 gy to
igo6. (25 vols., St. Paul, 1908-1912.) — Second Decennial
Edition, igo6 to igi6. (i vol. pub., St. Paul, 1917-.) — The
digest is kept to date by the Key-Number Series. (St. Paul,
1907-.)
H. "Works of Public Men.
The diaries, letters, reminiscences, and state papers of American
public men are of great service on government. For lists of the
principal pubUc men, their works, and works about them, see
Channing, Hart, and Turner, Guide, §§ 39, 46, 47, and A. B. Hart,
Manual, §§ 27, 236, 237. The diaries of John Adams, William
Maclay, and John Quincy Adams, the autobiographies of George
F. Hoar and Theodore Roosevelt, and the letters of John and
W. T. Sherman, are examples.
I. Fugitive Material.
Much of the most valuable information about actual govern-
ment comes from contact with public men, and from chance news
in the daily papers. The Washington correspondents of the great
dailies are among the best informed men on this subject. Many
newspapers also have correspondents at the state capitals during
the sessions of the legislatures. City councils and mayors are
the subject of much newspaper discussion.
Actual Government.
Part I.
Fundamental Ideals.
CHAPTER I.
PHYSICAL BASIS OF GOVERNMENT.
1. References.
Bibliography: Channing, Hart, and Turner, Guide (1912), §§ 31,
96-99, 161, 162, 165, 193, 200-203, 216, 230, 23s, 239, 245, 258, 261,
264, 274; C. D. Wright, Practical Sociology (1909), §§ 9, 17, 23; Cyclop,
of Am. Govt. (1914), I, 159, 236; II, 35, 64, 147, 687, 690; HI, 206;
A. B. Hart, Manual (1908J, §§ 97, 98; E. C. Semple, Am. History and
its Geographic Conditions (1903), ch. bibliographies. See also refer-
ences in chs. xviii, xix, xxiv below.
Boundaries: H. Gannett, Boundaries of the U. S. a>id of the Several
States (U. S. Geological Survey, Bulletins, No. 226, 1904); Cyclop, of Am.
Govt. (1914), Arts, on Boundaries, and states by name; W. F. WiUcox,
Report on Boundaries (U. S. Twelfth Census, Bulletins, No. 74, 1901).
Physical and Political Maps: The best physical maps are pub-
lished by the Geological Survey of the United States in detailed sheets
and small contour maps. A good wall map is furnished by the Super-
intendent of Documents for one dollar. A. B. Hart, Wall Maps of
Am. Hist. (19 maps, 1918); Cyclop, of Am. Govt., as above. Small
political maps are found in most of the school histories; in A. B. Hart,
Epoch Maps (rev. ed., 19 10); about 150 in The American Nation series
(28 vols. 1903-1918).
Geographical Characteristics: L. Farrand, Basis of Am. Hist.
(1904), chs. i-iv; A. P. Brigham, Geographic Influences in Am. Hist.
(1903); E. C. Semple, Am. Hist, aiui its Geographical Conditions (1903);
Cyclop, of Am: Govt. (1914), Arts, on Am. Govt, and Geography; Area
of the. U.S.; People and Social Conditions; Physics and Politics ; Physi-
ography of No. Am.; Resources of No. Am.; N. S. Shaler, Nature and
Man in America (1891); R. G. Thwaites, The Colonies (rev. ed., 1910);
Bulletins of the Thirteenth Census (1910-); geographical and descrip-
tive articles in National Geographical Magazine, and Btdletin of the
Am. Geographical Society.
The People and their Social Condition: J. Bryce, Am. Commmi-
wealth (ed. 1910), II, chs. xci-xciii, pt. vi; C. D. Wright, Practical
3
4 Fundamental Ideals. [§ 2
Sociology (1909), especially chs. ii-iv, vii, viii; E. E. Sparks, Expansion
of the Am. People (1900); A. M. Low, Am. People (1909-1911); J. F.
Muirhead, America the Land of Contrasts (1902); Cyclop, of Am. Govt.
(1914), Art. on Frontier in Am. Development; L. Farrand, Basis of
Am. Hist. (1904), chs. vi-xvii; A. B. Hart, National Ideals (1907), ch. x.
— Sources: A. B. Hart, Contemporaries (1897-1901), H, §§80-108;
in, §§ 10-36, 151-157; IV, §§ 75-83, 203-209.
Population and Immigration: F. B. Dexter, Estimates of Popula-
tion in the Am. Colonies (1887); recent censuses; R. Mayo-Smith, £wi-
gration and Immigration (1890); Cyclop, of Am. Govt. (1914), Arts, on
Census ; Foreign Elements in the U. S. ; Immigration ; Population of the
U. S.; E. R. A. Seligman, Economics (1914), §§ 21-26; E. E. Sparks,
National Development (1907), ch. ii. See also refs. to ch. xxiv below.
Race Questions: Am. Race Problems (Am. Acad. Pol. Sci., Annals,
XVIII, 7-178, 1901); J. R. Commons, Races and Immigrants (1907),
ch. iii; P. F. Hall, Immigration (2d ed., 1908), ch. xv; W. E. B. DuBois,
Souls of Black Folk (1903); E. E. Sparks, National Development (1907),
chs. xiv, xvi; A. B. Hart, National Ideals (1907), ch. iv; A. B. Hart,
Southern South (1910); G. T. Stephenson, Race Distinctions (1910);
J. M. Mecklin, Democracy and Race Friction (1914); M. R. Coolidge,
Chinese Immigration (1909); J. Bryce, Am. Commonwealth (ed. 1910),
II, chs. xciv, xcv.
2. The Land and its Resources.
The purpose of this book is to account for and to describe
the vast organism of American government. Without attempt-
ing to define " the state " in general, or to explain the theory
of the state, we shall undertake to make clear the nature of
that community to which we give the name " the United
States," including not only the national authority centred at
Washington, but also the governments of the constituent states
and their creations, the local governments. The fundamental
basis of this study will be the conception that all forms of
government, and all functions of government, within the United
States, are factors of one great political system, expressed partly
in traditional conceptions of democracy, partly in the federal
constitution, partly in the state constitutions, partly in the
charters or other acts of incorporation of localities, counties,
cities, and towns, partly in the statutes of the nation, states,
and local governments ; quite as much in the habitual practice
PHYSICAL FEATURES
CONTINENTAL MASS.
l.)t>rttuae MO' 'West from
Greenwich
§ 2] The Land and its Resources. 5
of all the various agencies of the government, as shown by
what they actually do.
To understand our country we must know its physical con-
ditions, and especially the territorial basis of national life.
Not reckoning our insular possessions and dependencies, the
United States occupies a region stretching from the Atlantic
Ocean to the Pacific, and from the 49th parallel, north latitude,
to the 25th parallel on the south. The area of this continental
block is 2,970,230 square miles; Alaska and the insular pos-
sessions bring it up to 3,690,822 square miles. This area is
divided into four north-to-south belts : first, the Atlantic slope,
from the ocean to the Appalachian range, including New
England and most of the Middle and South Atlantic states ;
second, the Mississippi Valley, extending from Western New
York to Idaho and Colorado, and practically including the
upper Great Lakes ; third, the interior basin from the crest of
the Rockies to the Sierra Nevadas ; fourth, the Pacific slope,
chiefly the states of California, Oregon, and Washington.
The Great Basin is lofty, ill watered, and mostly sterile ; the
two coast regions are well watered, well wooded, and abound
in minerals ; and the Mississippi Valley is an area of fertile
and easily accessible land, hardly equalled in the whole world.
From the Atlantic to the Rockies the United States is flanked
north, east, and south by tide water or navigable lakes ; it has
splendid harbors looking eastward ; and the mountains west-
ward present no obstacle to the building of railroads, which
connect with ports on the Pacific.
In climate and in products the United States is a strong,
rich, and abundant land. From the snow-clothed summits of
the Sierras to the sub-tropical regions of Florida and the
Mississippi delta, the country abounds in food and in materi-
als for clothing and house- building. It is also a country rich
in mineral resources. Almost unsurpassed coal fields, vast
reservoirs of oil, abundant mines of gold, silver, copper, and
lead, unrivalled deposits of iron, — all these natural riches
contribute to make the country wealthy, and at the same time
6 Fundamental Ideals. [§3
to diversify its interests. In the census of 1900, the annual
agricultural products of the whole United States were valued
at ^4,700,000,000, the manufactures at $8,400,000,000. It is
not only a rich but a busy land, full of opportunities.
These natural advantages have had a great effect upon the
development of American government. The whole land east
of the Rockies is so easily accessible, and the mountains and
rivers are so easily passed that, since the French were ex-
cluded in 1763, there has been no permanent division of the
interior into independent communities. Men have passed
back and forth, northward and southward, eastward and west-
ward ; and the only attempt that has been made to divide the
country — the rebellion of 1861 — failed because geographi-
cally and politically there was no natural division into a North
and a South. The ease of transportation has led to great
rapidity of settlement in wild territory; hence new communi-
ties have rapidly sprung up, and the continental states of the
Union have in a century increased from seventeen to forty-five.
The wealth of the country and the ease of transportation have
stimulated the growth of cities, for which a special system of
municipal governments has had to be contrived. The foreign
commerce of the United States, its favorable position between
two oceans, its internal wealth, have given to the national
government enormous revenues and great prestige. In natu-
ral resources our country is surpassed only by China ; in area
of compact territory only by Russia; in accumulated wealth
by no people. The United States occupies a great territory,
fitted by nature to be the home of a great nation.
3. Political Subdivisions.
The United States has a system of political subdivisions
more complicated and various than that of most lands ; for we
have three main units of government, — the federal, the state,
and the local, — each of which is subdivided for its own pur-
poses. The most important kind of territory is the states of
the Union, with boundaries partly derived from grants and
§3] Political Subdivisions. 7
charters made before the Revolution, and partly from acts of
Congress admitting the later states into the Union. In addi-
tion, the United States is divided into 9 judicial circuits ; the
coast of the ocean fronts and the Great Lakes is divided into
120 tariff collection districts ; the interior and the coast together
are divided into 63 internal-revenue collection districts.
The states are subdivided into counties, varying from 3 in
Delaware to 249 in Texas ; and into election districts, first for
members of Congress, then for the two houses of the state
legislature. Within the counties are, in most states, towns or
townships and cities (though a city sometimes occupies the
whole area of a county, as in the case of Philadelphia). Within
the townships are sometimes boroughs or villages, as well as
electoral subdivisions. The cities are divided into wards and
voting precincts.
All these local boundaries are invariably fixed under author-
ity of the state legislature, and are subject to constant change :
counties are frequently subdivided, electoral districts are re-
arranged, ward lines are redrawn from time to time, as cities
grow ; hence people have very little interest in, and often very
little knowledge of, their own political subdivisions. The city
boundaries constantly tend to increase by taking in surround-
ing country : thus the city of Chicago covers 190 square miles,
including large areas of open prairie tilled as farms.
The whole area of the United States not included within
state boundaries is also subdivided into a variety of territories
and districts, posts, reservations, and dependencies, which will
be duly described hereafter.
Nor is there any uniformity in these subdivisions. In
France every department is divided into cantons, and every
canton into communes ; in the United States each state sets
up its own local system. Nearly all of us live in an electoral
precinct; a judicial district; a representative, a senatorial,
and a congressional district ; a town, a township, or a city ; a
county ; and a collection district ; each of which has its special
officers and its special purpose.
8 Fundamental Ideals. [§ 4
4. Population and Distribution.
Upon the face of the land, and within the territorial sub-
divisions just described, live in 1903 about 80,000,000 people,
which is about fifteen times as many as in 1803. In 1790 our
population was 4,000,000, and it has doubled, or nearly doubled,
every twenty-five years since : thus in 1 8 1 5 the population was
about 8,000,000; in 1840, over 16,000,000; in 1865, well
over 32,000,000 ; in 1890 for the first time it showed a slower
growth, being about 62,500,000 instead of 64,000,000; in
1900 the official count was 76,303,387 (including Hawaii and
Alaska, but not the other insular possessions). This makes
the United States fourth in population of world-states, next to
China, Russia, and Great Britain ; or, leaving colonies out of
account, it is third ; and it is easily first in its power to pro-
duce intelligent and educated men and to call upon them in
time of need ; so that it is becoming the most powerful nation
in the modern world.
An examination of the map opposite, however, will show
how unequally this population is distributed. Great areas in
the West have less than two inhabitants to the square mile,
while some sections in the heart of cities are as crowded as
East London or Canton. The areas of thick population and
of the richest and most prosperous cities are on the North
Atlantic coast (from Portland, Maine, to Washington), through
Central New York and the Valley of the Ohio, in the Northern
Mississippi Valley, and about the Great Lakes.
The distribution of population is much affected by concen-
tration into cities. In 1900, 25,000,000, or nearly one third
of the population, lived in the 546 cities. To be sure, the rural
population is also increasing : the 50,000,000 rural dwellers in
1900 are as many as the whole population, urban and rural,
in 1880 ; but there are large areas, especially in New England,
where the country towns have decayed and the former homes
of prosperous families are left to go to ruin. This is a sign
not of loss, but of gain, an evidence that the people have found
DISTRIBUTION OF THE POPULATION OF THE UNITED STATES, 1900.
[Revroduced from Report of Twelfth V. S. Census.!
BOilMAY& CO., N.Y.
§ s] Race Elements. 9
better conditions in the neighboring cities or in far-off country
homes.
The largest aggregation of city population in 1900 was
Greater New York, with 3,437,202 people; then followed, in
the order of the number of people, Chicago, Philadelphia,
St. Louis, Boston, Baltimore, Cleveland, Buffalo, San Fran-
cisco, Cincinnati, Pittsburg. The city of New York has in
it about as many people as the whole country west of the
watershed of the Rocky Mountains ; and fourteen of the states
of the Union have each fewer people than live in the city of
Cleveland. The effect of city growth has been to disturb
the balance of government within states possessing great cen-
tres : in New York, Massachusetts, Maryland, Illinois^ Missouri,
Louisiana, and Ohio there is a difference of interest between
the urban and the rural parts of the state, and the country
members of the legislatures constantly attempt to govern the
cities.
An important element in the distribution of population
is the movement from state to state: 14,000,000 people, or
nearly one fifth of the nation, were hot born in the state or
territory in which they live ; probably one third of the adult
population has moved at least once from a state into another
state. Thus, in Oklahoma only 15,000 out of the 100,000 of
the whole population were born in the territory ; and even in
an old and settled region like Iowa, about a quarter of the
people have come from other states. This shifting about has
carried principles of government from one part of the country
to another ; but at the same time it has prevented the growth
of a deep-seated feeling of attachment to one particular state,
and of responsibility for its future.
5. Race Elements.
No great modern country has been so much affected by the
coming-in of foreigners as the United States. In 1900 abour
10,500,000 of its residents were born outside of the country:
^of these nearly 3,000,000 were from Germany or other Geiniaii-
lo Fundamental Ideals. [§5
speaking countries ; about 1,800,000 were Irish born; England,
Scotland, and Canada furnished a total of 1,800,000 ; Norway,
Sweden, and Denmark, about 1,000,000 ; Slavs of various origin,
about 1,200,000; France, Italy, and Mexico together, about
700,000. In forty years the number of Irish-born Americans
has been stationary, the Germans have more than doubled, and
great numbers of Latin and Slav immigrants have come in from
countries unrepresented in i860.
These race elements are erratically distributed. The Irish
and Slavs prefer the cities, the Germans and Scandinavians
the open country. Some sections of the United States have
almost no immigrants : thus, in the Southern states, leaving
out Texas and Missouri, there are only about 400,000 for-
eigners, — less than are to be found in the single city of
Chicago. These foreigners have furnished laborers and work-
men for the farm, for railroad-building, and for the factory,
and they have greatly contributed to the building up of the
great Northern cities.
In addition to the 10,500,000 immigrants, nearly 16,000,000
of our countrymen are born of a foreign-born father or mother
or both parents ; so that of the 75,000,000 Americans, 26,000,-
000 are chiefly of foreign origin, 9,000,000 are negroes, and
only about 40,000,000 are of what may be termed an Ameri-
can stock. Hardly in the history of mankind has a great
country received such an influx of mixed population from with-
out ; and the present prosperity of the republic is proof that
this foreign element upon the whole is safe, and that in the
course of time most of the descendants of foreigners will be
absorbed into the body politic.
The negro population of 9,000,000 includes nearly every
person who has any discoverable admixture of negro blood,
even to the thirty-second degree. That population has a large
birth-rate, but also a large death-rate, and hence increases at
a ratio a little less than that of the neighboring white popula-
tion. The negro population is not altogether confined to the
Southern states : there are about 400,000 in the states from
§ 6] American Society. 1 1
Maine to Pennsylvania, and 500,000 in the states fiom Ohio
to the Dakotas. In two of the states in the Union, Mississippi
and South Carolina, the negroes are in excess of the white
population ; and in Alabama, Georgia, and Florida they are
nearly equal. In general the negro population tends to con-
centrate in the counties in which there is already the largest
number of negroes, and the white population to move slowly
into other parts of the same state.
I/'
6. American Society.
The final measure of national power is not numbers, or
diversity of elements, but the character of the people. Are
the Americans a people who have that sense of common inter-
est, common standards, and common destiny which makes a
strong and enduring race?
The most obvious and the most important social principle
in America is equality of opportunity, — the right of every
man and woman to do what he is by nature best fitted to do,
and the corresponding right of every child to have such a
degree of education as will give him the opportunity to show
capacity for service to his kind. Hence, in a society which
includes race and social elements of great diversity, which
runs up the scale from poverty to unmeasured wealth, from
the ignorance of the rudest peasant to the polish of the finest
modern gentleman, there is always present the democratic
idea that wealth, education, and distinction may come to that
man who, whatever his beginnings, shows the power to make
something of himself.
In government, as in business, the beginner in America
looks all along the road to the highest place. A larger part
of the population is trained by some experience of government
than probably in any other country, except perhaps Switzer-
land. Offices small and great abound, and are commonly held
for short terms ; most adult men have personal contact with
the various forms of their government. Furthermore, politics
are much affected by the great numbers and the physical
1 2 Fundamental Ideals. [§ 6
power of the American people : it lies in the genius of the
Americans to undertake great tasks ; they like to build trans-
continental railroads and Isthmian canals ; they like to estab-
lish land offices and Philippine commissions, expecting that
they must succeed ; with confidence they organize immense
municipalities and great national services. The variety of
race elements undoubtedly leads to combinations of small
groups : in many parts of the country, politicians carefully cul-
tivate the German vote, the Irish vote, the Scandinavian vote.
To carry on a hotly contested election campaign in Wisconsin,
political speakers must be provided with no less than fifteen
languages if they are to reach all the voters ; but it seems
unlikely that these racial groups will long remain an element
in American politics.
American society is in a state of constant change. In few
communities do the children live in the house in which their
fathers were born ; people freely alter their calling, their
street, their town of residence, their state : few communities
have historical associations with the past. Hence Americans
are always ready to take up experiments in government, and
as ready to abandon a system which does not work to their
minds. To a Frenchman it would seem impossible that in
twenty years a city could have three charters; or to a
German that a state should five times completely revise its
constitution in a century. Yet within this flexible and change-
ful system of government there is a remarkable conservative
instinct, which makes great changes in American government
very slow : for instance, after the Civil War, the New England
town system was introduced into some of the Southern states ;
it simply died out for lack of soil in which to grow. Hence
also the strong hold upon Americans of unwritten practices of
government, — as, for instance, the widespread principle that
a representative must live in the district which he represents.
In general, American society with its democracy, its rapid
movement, its eagerness to improve, and yet its strong hold
upon the past, is well suited to the institutions which it has
§6] American Society. 13
worked out. We shall find that American government is
changeful and yet stable, elastic and yet firm ; and that
respect for tradition and precedent and vested rights play
almost as great a part in America as in such rigid and con-
servative governments as England.
CHAPTER II.
THE INDIVIDUAL AND HIS PERSONAL RIGHTS.
7. References.
Bibliography: Channing, Hart, and Turner, Guide (1912), §§ 163,
186, 209, 228, 234, 240, 241; Cyclop, of Am. Govt. (1914), I, 130, 273, 282,
616; II, 41, 57, 106, 347, 348, 516; A. B. Hart, Manual (1908), §§ 192, 197,
203, 206, 211; F. A. Cleveland, Organized Democracy (1913), §§ 57, 67, 70,
303; Macy and Gannaway, Comparative FreeGovt. (1915), 720-723 (cases).
Conceptions of Personal Rights: E. McClain, Constitutional
Law (1910), §§ 198-205; H. Brannon, Fourteenth Amendment (1901);
T. M. Cooley, Constitutional Limitations (7th ed., 1903), chs. ix-xiii;
M. Hill, Liberty Documents (1901), chs. i-xii; B. A. Hinsdale, Am.
Govt. (4th ed., 1917), chs. xlvii, xlviii; J. K. Hosmer, Anglo-Saxon
Freedom (1890); E. Kelly, Government or Human Evolution (1900-
1901); F. A. Cleveland, Organized Democracy (1913), chs. vii, xix; Cyclop,
of Am. Govt. (1914), Arts, on Bills of Rights; Civil Rights; Civil Rights,
Constitutional Guarantees of; Due Process of Law; Fourteenth Amend-
ment; Habeas Corpus; Liberty, Civil; Liberty, Legal Significance of;
W. W. Willoughby, Constitutional Law (1910), II, chs. xlv, xlvi; J. B.
Thayer, Cases on Constitutional Law (1895), I, 1-47; J. A. Woodburn,
Am. Republic (1916), ch. i; T. M. Cooley, Constitutional Law (1898),
ch. iv, §§ 3, 14, chs. xii-xvi.
Citizenship: E. McClain, Constitutional Law (1910), §§ 193-196;
R. L. Ashley, Am. Federal State (1911), ch. xxix; W. H. Taft, Four
Aspects of Civic Duty (1906); Cyclop, of Am. Govt. (1914), Art. on Citizen-
ship in the U. S.; W. W. Willoughby, Constitutional System. (1904),
chs. XV, xvii; F. A. Cleveland, Organized Democracy (1913), chs. viii,
ix; W. W. Willoughby, Constitutional Law (1910), I, chs. xvi-xix, xxxi;
J. Story, Commentaries (1873, 1891), §§ 1103, 1104, 1693-1695, 1805,
1806, 1928-1975; J. B. Moore, Digest (1906), III, §§ 372-486; W. L.
Scruggs, Ambiguous Citizenship {Pol. Sci. Quar., I, 199-205, 1886).
Personal Freedom: E. McClain, Constitutional Law (1910), §§ 212-
216, 218, 227-243; Cyclop, of Am. Govt. (1914), Arts, on Freedom of
Speech and of the Press; Freedom, Personal; Negro Problem; W. W.
Willoughby, Constitutional Law (1910), II, §§ 455-459; T. M. Cooley,
Constitutional Limitations (7th ed., 1903), ch. x; J. C. Hurd, Law of
Freedom and Bondage (1858-1862); R. L. Ashley, Am. Federal State
(1911), ch. xxiv; B. Wendell, Liberty, Union and Democracy (1906),
ch. ii; discussions on the Thirteenth Amendment in constitutional
treatises. — Sources: M. Hill, Liberty Documents (1901), chs. viii, xxi-
xxiii; W. MacDonald, Select Charters (1904); Select Documents (1898);
Select Statutes (1903).
14
§ s] The Citizen and the Alien. 1 5
8. The Citizen and the Alien.
In a nation, the individual is not simply a social factor ; he
is or may be a citizen, a constituent part of the state. Citizen-
ship is simply recognized local membership in a political
community, and carries with it great privileges and- large
responsibilities. Citizenship is a privilege which attaches not
only to men, but to women and children down to the very
youngest : convicts, paupers, insane persons, may be, and
usually are, citizens, and as such are entitled to the care and
protection of the state. By a statute of 1885, every woman
married to a citizen of the United States is deemed a citizen.
Citizens may or may not be voters, — only about one fifth of
them have the right of suffrage ; they may or may not be sub-
ject to military service ; but the weakest and the strongest, man,
woman, and child, are equal in their inborn or acquired right
to liberty, to justice, and to protection. For many purposes,
such as holding and transferring property, suing and being
sued, corporations are technically citizens.
To the Roman in his day, or to primitive man, such as the
American Indian, every person not in formal relations of friend-
ship was a personal and natural enemy ; but the growth of
international trade, the visits of mariners, and the residence of
merchants in foreign countries, throughout the civilized world
cause the alien foreigner to receive large privilege of move-
ment and of occupation. Any foreigner of good character,
able to care for himself, is freely admitted into the United
States, and the sea-board states have no right to prevent his
coming. In 1900 there were in the country about 2,000,000
alien adult men, and probably as many women, who had not
acquired citizenship. The United States government possesses
power to expel aliens ; but the only general statute ever passed
for that purpose, the Alien Friends Act of 1798, was never put
into execution.
The alien may sue in the state and national courts ; he is en-
titled to appeal to the government for the protection of his life
1 6 Fundamental Ideals. [§9
and property, to jury trial, and to many like privileges ; under
the Homestead Act of 1862, Congress has given millions of
acres of land to aliens ; in eleven states of the Union, an alien
may under some circumstances vote, and even hold office ; and
by practice and a succession of treaties, most of them are also
entitled to liberty of conscience and worship, and may move
about and trade at their will ; the only widespread restriction is
against alien holdings of real estate. Socially and practically,
no distinction is made between the foreigner who has never
acquired United States citizenship, the naturalized foreigner,
and the native-born citizen.
A double citizenship arises out of the federal character of the
government. In 1857, in the famous Dred Scott case, four
judges affirmed that a person of African descent could not be-
come a citizen of the United States, or a citizen of a state, in
the sense of the constitution of the United States. This doc-
trine was one of the main reasons for the passing of the Four-
teenth Amendment in 1868, which provides that "all persons
born or naturalized in the United States and subject to the
jurisdiction thereof are citizens of the United States and of
the state wherein they reside." This does not necessarily cover
persons born in the organized territories, or born of American
parents abroad, or minor children of unnaturalized foreigners.
Thus, every citizen of the United States becomes a citizen of a
state while residing in it; but the states may confer all the
privileges of state citizenship within their limits upon foreigners
who have not yet become citizens of the United States.
9. Acquirement and Loss of Citizenship.
Membership in the community is acquired either by birth,
by naturalization, or by annexation. In the practice of modern
nations, one of two rules is usually followed : by the jus san-
guinis, the children of citizens born abroad are thereby born
citizens of the home country ; by the jus soli, all persons born
within a country are citizens, no matter what the nationality of
the parents.
§9] Acquirement and Loss. 17
(i) While we adhere in general to the English doctrine of the
jus soli for the children of aUens born in the United States,
we claini for the children of Americans born abroad the jus
sanguinis. Nevertheless, the children of Americans residing
abroad are often claimed by the foreign governments because
born on their soil ; and hence such young people sometimes
come to America to spend a few years about the time of their
majority, in order to affirm their American citizenship.
(2) The doubtful cases of citizenship almost all come from
naturalization, which is the process of transferring personal alle-
giance and political membership from one nation to another.
In colonial times and under the Confederation, such transfers
from foreign countries to the colonies, or from one colony or
state to another, were frequent ; and each community decided
for itself upon the methods and limitations of admission. The
federal constitution of 1787 gave to the federal government the
sole right to fix conditions of naturalization, and successive
statutes have laid down the method and terms of citizenship.
The period of minimum residence since 1795 has been five
years (except from 1798 to 1802, when it was fourteen years).
No matter how long a man has been in the country, he must
formally file a "declaration of intention" at least two years
before naturalization ; he must then prove by two witnesses
that he has resided in the United States five years, is a man of
good moral character, not an anarchist, and is attached to the
constitution ; and he must by oath renounce his allegiance to
his former country. His naturalization includes his wife and
minor children. These formalities are easy, perhaps too easy,
of fulfilment ; although Congress defines the method, any
federal or state court may receive the proof and issue the
certificate, and little pains is taken to verify the evidence.
Naturalization is not the right of all races : no ahen Mon-
golian, especially no Chinese, can be naturalized in the United
States j and no member of our own Indian tribes can get citi-
zenship by naturalization, though he may by leaving the tribe.
The naturalized citizen, so long as he remains in America,
2
I 8 Fundamental Ideals. [§ 9
is not likely to have any relations with his former govern-
ment; but thousands return to their country of origin to visit
their friends, or on business. Until 1870 Great Britain always
claimed such persons as still her subjects ; and when in the
sixties the German system of enforced military service began,
young men who had avoided that service and returned years
afterwards with certificates of American naturalization were
seized and punished for neglect of military duty. This diffi-
culty led to a series of treaties, negotiated about 1868, under
which the German governments agreed that if a German should
be absent from his native country five years without showing
an intention to return, he should thereby lose his German
citizenship ; if he afterwards returned to Germany and re-
mained there two years, the American government agreed that
he should thereby forfeit his newly acquired American citizen-
ship. Both countries thus formally acknowledge the right of a
man to change his membership not only once but twice ; and
admit that a man may forfeit his citizenship by residence abroad
without plain intention of returning. The same principle has
been stated in treaties with many other countries.
A curious class called " heimathlosen," or " homeless ones,'*
have lost the citizenship of one country without acquiring that
of another : thus the German who has lived in the United
States five years without being naturalized loses his German
citizenship, yet does not become an American ; hence in the
United States or Germany or elsewhere in the world he is not
entitled to ask for special protection from any power.
(3) The third method by which citizenship may be acquired
is the annexation of the country in which the foreigner resides :
thus, when Louisiana and FJorida came into the Union, it was
provided by treaty that the inhabitants of the territory should
be admitted as soon as possible to all the rights and advan-
tages and immunities of citizens of the United States. Under
a similar clause, persons who were citizens of New Mexico
and CaUfornia in 1848 became citizens of the United States
through th^ transfer ; and thus the Zuni and other tribes of
§ lo] Privileges and Obligations. 19
Indians, by an exception to our usual practice, became, and
their descendants remain, full citizens of the United States.
By the treaty of 1899 for the cession of Porto Rico and the
Philippines, the question of citizenship was left for settlement
by act of Congress ; and Congress has not seen fit to incorpo-
rate the people of those dependencies into full American citi-
zenship. They have in that respect much the status of the
American Indians.
In some foreign countries there is a system called the civil
death, by which a person convicted of a serious crime loses his
citizenship and thus can no longer hold property or act as a
member of the community ; and many foreign countries banish
their own citizens. Absolute loss of citizenship as a penalty
for crime does not prevail anywhere in the United States, and
it is doubtful whether any state can legally expel one of its
citizens. The only recorded case of banishment of a citizen
by the United States was the sending of C. L. Vallandigham
across the border into the Confederacy during the Civil War;
and that was justified at the time only as a military measure. .
10. Privileges and Obligations of Citizenship.
In many respects the alien has the same duties and the
same rights as the citizen : he must obey the laws and pay
taxes ; but all his privileges he holds subject to ejection. The
citizen's rights, on the other hand, are based on long tra-
dition amounting almost to an indefeasible right, on solemn
limitations in the federal and state constitutions, and on
federal and state statutes.
(i) A great privilege is that of protection: no individual
may take the property or injure the person of a citizen without
a criminal responsibility ; both the federal government and the
states are by the federal constitution forbidden to deprive any
person of life, liberty, or property without due process of law ;
even under due process of law, governments may take prop-
erty for public purposes only on just compensation. This pro-
tection follows the citizen upon the high seas and into foreign
20 Fundamental Ideals. [§ lo
countries. An American abroad is subject to the laws of the
country to which he goes, and he may be expelled from a
foreign country exactly as the alien in the United States ; but
while he remains he has, by the ordinary principles of inter-
national law and by numerous treaties made in his behalf, the
right to move about and carry on trade ; and he is entitled to
the same treatment by foreign courts as is the foreigner in
ours. Americans have also acquired the right, in most coun-
tries throughout the world, to preach religious doctrines, and
to convert such natives as their teaching may affect.
(2) The privileges of a citizen at home in America include
a share in all that the state does for the individual. The citizen
is entitled to an education at the expense of the state ; he is
entitled to use the public roads, streets, and grounds, and to
ride for the legal fare on the street railways, railroads, and
passenger steamers ; if unable to support himself, the public
must keep him from starvation ; if he goes insane, he is en-
titled to the aid of the public asylum : the state exists for him,
and he and his fellows are the state.
The obligations of citizenship correspond with the advan-
tages, (i) First, the citizen is held responsible to national,
state, and local laws. If he commits crimes or misdemeanors,
he must submit to trial, and, if convicted, to punishment ; if
called upon, he must aid the public authorities in keeping
order. (2) Another obligation of consequence is that of
military service. Every state may require its adult able-
bodied male citizens to serve in the militia for the defence of
the state government ; and the federal government may call
upon any such person to serve in the national army for de-
fence or offence. In the Civil War, thousands of men, both
North and South, were chosen by draft to enter the armies.
(3) The Civil War distincdy brought out the obligation, if there
be any conflict of authority, to obey the national government
against a foreign nation or against a city or a state. Although
for his share in that contest no person was convicted of trea-
son, nothing can be more certain than that in future collisions
§ii] Anglo-Saxon Liberty. 21
of authority, the federal government will hold responsible with
their lives persons who may refuse to obey on the ground that
they are directed to the contrary by their state.
(4) Another obligation of many citizens, not enforceable by
law, is to take part in the government in public elections. The
right to vote is not an incident, but a privilege conferred on
some citizens or even aliens. Yet citizens who are not voters,
including many minors, can take an intelligent interest in pub-
lic affairs, and can join in protest against the appropriation of
public benefits by a few persons.
(5) Another moral obligation of citizens is to reach their
political ends through the peaceful process of choosing men to
represent them who will bring about the desired reforms. The
punishment of criminals must be intrusted to the courts ; the
redress of abuses to city councils, legislatures, and Congress.
Riots and violence and mobs in behalf of a good cause simply
encourage like irregular methods in behalf of a bad cause.
11. History of Anglo-Saxon Liberty.
Citizenship does not necessarily mean freedom : subjects of
the czar of Russia or of the sultan are citizens. Even in coun-
tries where there is popular participation in government, the
individual may be legally subject to forms of arrest, imprison-
ment, trial, and punishment which seem to us unjust. Men of
the English race have a tradition of freedom from arbitrary
acts by officers of civil and military government, such as has
never been known in the previous history of the world.
The rights of Englishmen are partly traditional : in part
they are expressed in a succession of great royal grants and
acts of Parliament. In the charter of King Henry I, in iioo,
he promised not to lay " an arbitrary mulct of money " upon
wrongdoers. King John, in the great Magna Charta of 12 15,
consents that " a freeman should not be amerced for a small
offence, but only according to the degree of the offence " ; and
that " No freeman shall be taken or imprisoned or disseised,
or outlawed, or banished, or any ways destroyed, nor will we
2 2 Fundamental Ideals. [§ n
pass upon him, nor will we send upon him, unless by the law-
ful judgment of his peers, or by the law of the land. We will
sell to no man, we will not deny to any man, either justice or
right."
These privileges were at first secured, not for Englishmen
in general, but for the great nobles who owned the land and
who alone could assist in making the laws ; but gradually
they were extended to the commonalty, and came to include
the two mighty principles that a sovereign may be forced by
the moral pressure of his people to deny himself arbitrary
power ; and that a grant made by one sovereign is binding
upon his successors. By 1500 the system of jury trials was
well established ; and during the great struggle with the
Stuart kings, from 1604 to 1688, the rights of the individual
were stated in the Petition of Right (1628) ; the Agreement
of the People (1649), and other attempted written constitu-
tions of the English Commonwealth ; in the Habeas Corpus
Act of 1679 'j ^^'^^ ^^ •^he Bill of Rights of 1689. The princi-
pal rights thus enumerated are the freedom of the individual
from arbitrary money exactions, from the quartering of soldiers,
from martial law for civilians, from compulsion to go on for-
eign military service ; especially from arrest and confinement
without a charge of crime, and from cruel and unusual methods
of trial and punishment.
Our colonial forefathers brought over most of these great
individual rights, and participated in their extension in Eng-
land after colonization began ; they had also early charters
and instructions to governors, under which they enjoyed ex-
press freedom from arbitrary executive and judicial power.
In the Declaration of Rights and Grievances in 1765, the
Stamp Act Congress declared that " his majesty's liege sub-
jects in these colonies are entitled to all the inherent rights
and privileges of his natural born subjects within the kingdom
of Great Britain."
Notwithstanding occasional unjudicial trials and cruel pun-
ishments, like those of the Quakers, the colonies enjoyed
§12] Rights of Personal Freedom 23
greater individual freedom than Englishmen at home. When
the first state constitutions were framed, from 1776 to 1780,
they formulated these accumulated rights : for instance, free-
dom from arrest except on warrant, the right to be confronted
with accusers and witnesses, the freedom of the press, and
the exercise of government for the common benefit of the
community. The Declaration of Independence in 1776 pro-
tested against the quartering of troops, the imposition of
taxes without consent of representatives, and the withdrawal
of trial by jury. The Ordinance of 1787 guaranteed to the
people of the Northwest Territory the right of habeas corpus
and of trial by jury, and restated some of the clauses of the
Magna Charta. The federal constitution includes clauses for
the maintenance of habeas corpus, for the freedom of religion
and of speech, for the right to bear arms and to petition, for
public trial by an impartial jury, and for freedom from cruel
and unusual punishments, from quartering soldiers, and from
bills of attainder and ex-post-facto laws.
These fundamental restrictions protect the citizen not only
against officers of government, but against the community itself;
and they have been enlarged by many state and national consti-
tutional amendments, and by the practice of a century. Thus,
the Thirteenth and Fourteenth Amendments absolutely forbid
human slavery, and also protect against unlawful deprivation
of life, liberty, and property through the action of any state
government. These guaranties have spread wherever there
are English colonies ; they have profoundly affected the prac-
tices of other nations of Europe and of America ; and to-day
the conception of inborn human rights, of which no individual
can be deprived, is the foundation of the whole political and
social system within the United States of America.
12. Rights of Personal Freedom and Habeas Corpus.
The first of all the rights of the individual is personal free-
dom ; yet it was for centuries studiously violated in America
by the system of slavery. From the beginning of colonial
24 Fundamental Ideals. [§ 12
history, Indians were made slaves; in 16 19 began the system
of negro slavery in Virginia ; and throughout the colonial
period, and even later, white persons were sold to masters as
" indentured servants " for terms of years or for life.
Beginning with Vermont in 1777, many of the common-
wealths prohibited slavery within their borders. Congress
prohibited slavery in the Northwest Territory in 1787, and
in other areas in 1820, 1845, and 1848. January i, 1863,
President Lincoln declared that slavery would no longer be
recognized within the lines of the Confederate army ; and in
December, 1865, the Thirteenth Amendment was added to the
constitution, by which " Neither slavery nor involuntary servi-
tude, except as a punishment for crime whereof the party shall
have been duly convicted, shall exist within the United States,
or any place subject to their jurisdiction." When the Philip-
pines were annexed in 1898, slavery existed in the Sulu Islands ;
but from the moment of cession it ceased, under this provi-
sion, to have any legal existence, and any person claiming his
freedom there is entitled to the protection of the government.
Some exceptions to this system of universal freedom exist :
children are not free, but the authority of their parents is sub-
ject to the control of laws, and children are frequently taken
by the courts away from the custody of cruel or neglectful
parents ; insane people may be restrained of their liberty for
their own protection and that of the community, and to give
them an opportunity for recovery ; paupers who require the
support of the state are commonly much restricted of their
liberty ; and convicts are in many ways slaves of the state
during their term of confinement, though they should be pro-
tected by rigorous laws prescribing humane treatment. In
some Southern communities, convicts are hired out in gangs,
generally controlled by state officials ; and there have been
cases in Mississippi in which criminals have been sold for a
term of service to farmers who were to have " full and com-
plete power to control and discipline such prisoners." In a
few states, the service of vagrants may also be sold for brief
§ 12] Rights of Personal Freedom. 25
periods to private individuals. Both practices are contrary to
the Thirteenth Amendment.
A person physically and mentally capable of taking care
of himself, and not under punishment for crime, cannot be
compelled to render any personal service or to remain in any
particular place ; nobody can legally contract to give another
person power to restrain him of his liberty.
Personal freedom includes the right to move freely from
place to place and from state to state. To this general prin-
ciple there are some important and increasing exceptions : the
states may prevent the coming in of a person who would be
dangerous to the health of the community ; and paupers are
often moved back and forth to the communities from which
they originally came, without the consent of the persons con-
cerned. Furthermore, the United States does not recognize the
right of natives of dependencies to pass to the main country.
Chinese may travel unimpeded from San Francisco to New
York, but no Chinaman may travel from the Philippine Islands
to San Francisco ; and if there should be a considerable
movement of the Porto Ricans or the Filipinos to the conti-
nent. Congress would probably prevent it by law. In many
Southern states, members of the negro race are practically not
free to move where they will : in cases where they have at-
tempted to emigrate to the West, their steamers have been
stopped and they have been compelled by shotguns to return
lest the Southern communities should be deprived of work-
men ; on the other hand, there are counties in the South in
which no negro is allowed to set his foot, on pain of being
shot without trial.
One other exception to this principle must be noted, —
namely, the right of the state to imprison people who are
charged with crime, until they can be brought to trial. To pre-
vent indefinite confinement without a test of guilt, very ancient
English statutes, which appear in some form in the laws of all
the states, provide that no person shall be arrested except on
reasonable suspicion of crime, which must be set forth iii a
26 Fundamental Ideals. [§12
regular warrant specifying the person and the crime. Until
about 1830, a person might also be arrested in any state in the
Union if he could not pay his debts ; but the system has now
nearly disappeared.
When arrested on a proper warrant, in most cases bail will
be accepted by the courts ; that is, persons supposed to be
pecuniarily responsible will agree to forfeit an agreed sum if
the prisoner shall not appear in court at the proper time. In
case of aggravated crime, or where there is manifest danger
that the presumptive criminal will run away, bail is refused,
and hence presumably innocent persons may spend months in
jail before trial. In some states important .witnesses are also
detained, for no other fault than that they know something
about the case.
Several ancient methods of testing whether a person was con-
fined under a proper charge grew up in England ; and in 1679
the English Parliament provided a better remedy in the great
Habeas Corpus Act. In effect it provided that any person who
thinks that he or another is unjustly imprisoned may represent
the facts to a court, which will then issue a writ of habeas corpus,
directing whoever may have in custody the person described in
the writ to produce such person in open court (unless charged
with treason or felony) and state the reason for his detention :
thus, the head of an insane asylum may be compelled to bring
his patient before the court and show whether he has complied
with the legal method of finding out whether the person is
insane. The court of review decides whether law can be
shown for the arrest and detention. In 1807, President
Jefferson tried to hold BoUman and Swartwout on suspicion of
complicity in the Burr rebellion ; and Chief Justice Marshall
set them free, because they had been arrested by the military
without proper warrant. Under our federal system, justices of
state courts sometimes grant the writ of habeas corpus in cases
of arrest by United States officials; and justices of United
States courts issue it for state prisoners. These cases of con-
fusion are generally settled by appeal to the Supreme Court of
the United States.
§ 13] Political and Religious Opinion. 27
Habeas corpus may be suspended in case of civil war or of
foreign war ; it was so suspended during the Civil War, and
nearly thirty thousand persons were arrested without any proper
warrant, frequently on mere suspicion. President Lincoln took
the responsibility for this suspension, which eventually ex-
tended to places very remote from the seat of war ; and Con-
gress, in 1863, passed a kind of indemnification act. It is the
opinion of most publicists now that habeas corpus cannot be
■ suspended except by act of Congress, and that most of the
arbitrary arrests from 1861 to 1865 were unnecessary and
harmful to the administration.
13. Rights of Political and Religious Opinion.
Of all the activities of mankind, the only one that is abso-
lutely beyond the control of other men is the inner belief, the
conviction that some things are and other things are not. . No
government and no church has the physical power to discover
what people are thinking about ; by force of torture men may
be compelled to reveal their secrets, but the extremest physi-
cal violence will not induce a blind man to believe that he has
sight. Nevertheless from the dawn of civilization, churches
and governments have busied themselves with impalpable
beliefs, as though they were physical acts. From the theory
that the state or the church, or both combined, have power to
punish people for beUeving in their hearts what the authorities
do not believe, our ancestors have come all the long road to
the widest freedom of thought ever known to mankind. For
it is the principle of American government, expressed both in
federal and state constitutions, that every man has the freest
liberty to believe what he considers the truth.
American liberty goes further : it includes the right to
express opinions in private conversation and in public utter-
ance, so long as one does not undermine the morality of the
community or incite other persons to violent actions ; and to
induce other people to join in the statement of a supposed
truth.
2 8 Fundamental Ideals. [§13
By centuries of conflict, our ancestors earned the right to
petition public authorities for redress of grievances, including
the assembling to discuss common grievances and to formulate
a joint statement, — that is, the right of public meeting. In
other countries, assemblages are allowed only by favor : in Ber-
lin, for instance, it is contrary to the law for several persons to
join in conversation on the streets ; and luckless Americans are
sometimes arrested for exchanging too long a good-night. In
the United States the mass-meeting is recognized as one of
the most effective ways of influencing public opinion. Ameri-
cans habitually send petitions to members of the local, state,
and federal governments, and frequently are allowed to attend
public hearings of legislative committees or of administrators,
in order to present their views.
The liberty of private utterance extends to the press, al-
though the emancipation of the newspaper was slowly accom-
plished. The Zenger case in New York in 1735 settled the
question in the colonies. We have not, as in France, a deposit
of a guaranty fund by the proprietors of the paper; here
responsibility comes only after publication. We have never
had a censorship, except during the Civil War, when attacks
oil the government were prohibited. The only federal enact-
ment on that subject, the Sedition Act of 1798, proved one of
the most short-lived of statutes. Our theory is that of Crom-
well : when a critic was arrested, the Protector set him free
with the words, " Let him take his notes. If my government
is made to stand, it has nothing to fear from paper shot."
Some newspapers take scandalous advantage of the liberality of
their government by prying into the details of private lives, by
unjustified attacks upon the motives of public servants, and
by the publication of gross and degrading criminal news ; but
one of the greatest causes of discontent is removed when people
may freely express their opinions and their dissents. It is
usually to the interest of the newspapers to expose public
wrong-doing, and therefore they are one of the most powerful
influences toward upright public service. Any man who slan-
§ 14] Right to Fair Judicial Proceedings. 29
ders another, or by false and malicious libel excites the com-
munity, may be punished through the courts.
Freedom of thought includes the inestimable right of reli-
gious opinion, one of the most significant achievements of the
American people. The right includes the right to express an
absence of religious belief so long as it is not blasphemous.
Even our Puritan ancestors hanged people for practising an
unpopular religion ; but the federal constitution obliges the
federal government not to make any religious establishment or
to fix any religious qualification. Most of the states have
asserted the same principle for themselves in their constitu-
tions. The question of the advocacy of such a religious
doctrine as polygamy is a very difficult one. In 1887- the
United States government formally dissolved the so-called
Church of Jesus Christ of Latter Day Saints, and confiscated
the church property, on the ground that polygamy was not a
religious belief.
14. The Right to Fair Judicial Proceedings.
The object of courts is to apply the laws, and to discover
the truth in contested cases. Where criminal acts are charged,
or even in civil suits, the courts must have power to compel
the attendance of suitors or their counsel and of witnesses, and
to make decisions, under which the custody of property or of
persons may be transferred. Our whole machinery of justice
is intended to give a speedy, fair, public, and unbiassed trial to
every person charged with a crime ; it is even a presumption
that a man is innocent of a crime until he is proved to be guilty.
The federal constitution protects the people against unreason-
able search and seizures, and requires specific warrants ; and
the state constitutions have similar clauses. Tools of trade are
usually exempt from legal seizure, and in certain states the
homestead cannot be levied on. The detailed provisions in
the federal constitution with regard to judicial trials apply only
to federal suits. They provide that a man can be tried only
on an indictment or a similar charge of guilt ; that he must be
30 Fundamental Ideals. [§ 14
tried by a jury in the criminal courts, and also is entitled to a
jury in civil suits at common law where the value in contr j-
versy shall exceed twenty dollars ; that no person can be com-
pelled to witness against himself, or be twice put in jeopardy
of life or limb ; that he must have speedy and public trial in
the district wherein the crime shall have been committed.
These provisions are repeated or imitated in most of the state
constitutions.
. Constitutional clauses do not protect a person against false
testimony or a violent judge or a prejudiced jury, but they
put in the hands of the innocent person proper means of
establishing his innocence. Furthermore, no person can be
punished by the United States courts for a crime defined by
ex-post-facto law, — that is, a law made after the act was
committed ; and he cannot be subjected to cruel or unusual
punishments. Torture is absolutely excluded from our juris-
prudence, either to ascertain evidence, or as punishment.
The publicity of trials, the notice usually taken by the news-
papers, and the power of the courts to set aside jury findings
which seem contrary to the evidence, make it difficult to con-
vict an innocent person, although they may also make it easy
for a guilty man to escape. The great hardship and injustice
under our present system is the long postponement of criminal
trials ; and then the tedious proceedings, often lasting for
weeks and months, wearying the jury almost past endurance,
and overloading their minds with a mass of evidence on which
they cannot discriminate.
The Fourteenth Amendment, which prohibits the taking-
away of life, liberty, or property without due process of law,
under colour of a state statute, makes it difficult for the states
to set up an arbitrary government. Of course no judicial
system covers cases of mob violence, in which evidence is dis-
carded and passion becomes judge. Private justice belonged
to a ruder age. The mark of civilization is the willingness
to leave to orderly judicial proceedings the punishment even
of the worst crimes.
§15] Dependent People. 31
15. Rights of Dependent People and Colonists.
At the time the constitution was fiamed, in most of the states
in the Union negroes, whether slaves or free, were poHtically
inferior ; they were not entitled to the usual privileges of suf-
frage or free movement or to the use of the courts. As late as
1857, Chief Justice Taney said that, when the constitution was
founded, people held that the negro " had no rights which the
white man was bound to respect." The Fourteenth Amend-
ment was inserted into the constitution, in 1868, expressly to
remove the discrimination between the races ; and the prin-
ciple was further extended by the Fifteenth Amendment, so
that the right of citizens of the United States to vote, " shall
not be denied ... on account of race, color, or previous
condition of servitude." So far as the law can put them on
an equal basis, the negroes are entitled to exactly the same
civil rights as the white man ; and they apparently have most
of their judicial rights.
Another race under a special dispensation is the Indians,
who from the foundation of the colonies have not been con-
sidered members of the political community. They are wards
of the nation, and so long as they remain with their tribes have
only such personal rights as may be conferred upon them by
treaty or by act of Congress.
Another class of dependents is the insane, paupers, and
orphans, who are wards of the state ; they are entitled to and
receive special consideration from the state, and special protec-
tion through officials.
The most serious question of dependent people has been
presented by the recent annexations of island territory to the
United States. Have the people outside the boundaries of
organized states the same rights under the federal constitution
as those within such states? When the territories were first
organized, in 1784 and 1787, it seems to have been assumed
that the residents had the rights of Americans ; as fast as new
territory was annexed, it was speedily brought, sometimes by
32 Fundamental Ideals. [§ i6
treaty, sometimes by specific act of Congress, within the
clauses of the constitution which provide for personal liberty.
The new island possessions, however, have not as yet been
distinctly placed under the genius of the constitution. In the
Philippine Islands, Congress has not thought fit to apply pre-
vious indictment or trial by jury, but has enacted the right to
be protected in life, liberty, and property except by due proc-
ess of law. Apparently, within the jurisdiction of the United
States, there may be millions of persons who are not entitled
to the constitutional provisions of personal liberty because it is
supposed that they are not qualified to enjoy them. But those
clauses are not inserted in the constitution simply for the bene-
fit of the weak and defenceless ; they are there for the defence
of society, and it is more important to the inhabitants of the
states than to the dependent peoples themselves that the people
in distant possessions should have justice and freedom.
16. Political and Social Rights.
In most states of the Union, about one fifth of the popula-
tion are voters. Inasmuch as the suffrage practically carries
with it the opportunity to be a candidate for office, the wide
extension of suffrage confers great privileges by opening up a
possibility of distinction.
The only distinct statements on social rights in the federal
constitution are the two clauses forbidding the grant of titles
of nobility by the United States or by a state. But the prin-
ciple of American law is that all people are equally entitled
to public advantages, such as parks, public libraries, public
schools, municipal gas and water privileges ; and that they are
also entitled to use private agencies established under super-
vision of the state for common use, such as railroads and other
means of transportation, hotels, and places of amusement.
Nearly excluded from social rights are the negroes in the
South : from time immemorial the members of that race, free
as well as slave, have not been allowed the equal use of public
or semi-public resorts. A statute passed by Congress in 1875,
§ i6] Political and Social Rights. 33
for the protection of negroes in such cases, was disallowed by
the Supreme Court. Negroes are admitted to few of the
hotels, North as well as South, and frequently are not allowed
on Pullman cars. Most of the Southern states provide separate
accommodations on trains for negroes and white people, pro-
vide separate schools, and forbid the negroes to use the public
libraries or to enter other than certain specified parts of
theatres. In the North there is usually no objection to any
clean and well-disposed person entering a public conveyance
or a place of amusement.
When it comes to a question of social intercourse, gentlemen
and ladies choose friends and associates for themselves : there
can be no system of legislation that compels A to invite B to
his house, or to treat him in a friendly manner. The farthest
point reached by the law is that the objection of A shall not
prevent B from use of public facilities ; and the farthest social
right that can be claimed, without bringing down the denuncia-
tion of the community, is the right of C to invite B and treat
him as a friend, whether A would invite him or not.'
CHAPTER III.
THE FRAME OF GOVERNMENT.
17. References.
Bibliography: Cyclop, of Am. Govt. (1914), I, 83, 395, 408, 419,
421, 431, 438, 444, 717; II, 738; III, 220, 223, 298, 326, 409; Chan-
ning. Hart, and Turner, Guide (1912), §§ 158, 163, 164, 166, 172-175,
178, 195, 203; F. A. Cleveland, Orgom'zerf Democracy (1913), §§ i, 15, 22,
29, 38, 45; Macy and Gannaway, Comparative Free Govt. (1915), 720
(cases); A. B. Hart, Manual (1908), §§31, 32, 97, 98, 136, 137, 142,
147, 158, 199, 203, 285, 287; E. McClain, Constitutional Law (1910), § 8.
Constitution Making: J. A. Jameson, Constitutional Conventions
(4th ed., 1887); E. McClain, Constitutional Law (1910), §§ 9-13; A.
N. Holcombe, State Govt. (1916), ch. xii; W. W. Willoughby, Nature of
the State (1896); J. Q. Dealey, Am. State Constitutions (1915); W. Wil-
son, Constitutional Govt. (1908), chs. i, ii; F. J. Goodnow, Social Reform
and the Constitution (1911), ch. v; R. S. Hoar, Constitutional Conventions
(1917); A. L. Lowell, Public Opinion and Popular Govt. (1913), ch. ix;
A. C. McLaughlin, Courts, Constitution, and Parties (191 2), Nos. 4, 5;
C. S. Lobinger, People's Law (1909), pt. B; C. E. Merriam, Am. Politi-
cal Theories (1903), ch. iii; Cyclop, of Am. Govt. (1914), Arts, on Articles
of Confederation; Congressional Government; Constitution Making
in the U. S.; Constitutional Convention; Constitutions, Classified;
Constitutions, State, Characteristics of; Constitutions, State, Limitations
in; Political Theories (5 articles); Popular Government; Revolution,
Am., Causes; Revolution, Am., Significance; Separation of Powers;
Social Compact; Sovereignty; State, Theory; States, Classification;
W. W. Willoughby, Constitutional Law (1910), I, ch. iii; H, ch. Ixiii;
J. A. Woodburn, Am. Republic (1916), ch. ii; J. Bryce, Am. Common-
wealth (ed. 1910), I, chs. iii, xxxi, xxxii. — Sources: P. S. Reinsch,
Readings on Am. State Govt. (1911), ch. ix; A. Johnson, Readings in
Am. Constitutional Hist. (1912), pt. ii.
Federal Convention of 1787: A. C. McLaughlin, Confederation
and Constitution (1905), chs. xi-xviii; A. B. Hart, Formation of the
Union (rev. ed., 1915), ch. vi; J. H. Robinson, Original and Derived
Features (1890); C. A. Beard, Econ. Interpretation (1913); M. Farrand,
Framing of the Constitution (1913); W. M. Meigs, Growth of the Consti-
tution (1899); C. E. Stevens, Sources of the Constitution (1894); S. G.
Fisher, Evolution of the Constitution (1897); Cyclop, of Am. Govt. (1914),
Art. on Federal Convention and Adoption of the Constitution. —
Sources: A. B. Hart, Contemporaries (1897-1901), IH, §§ 54-82; M.
Hill, Liberty Documents (1901), ch. xvii; Am. Hist. Leaflets, Nos. 8,
18, 28, 30; J. Elliot, Debates on the Federal Constitution (1836-1845);
34
§ i8] Sovereignty. 35
M. Farrand, Records of the Federal Convention (191 1); A. Johnson,
Readings in Am. Constitutional Hist. (1912), ch. xii.
Amendment of Constitutions: E. McClain, Constitutional Law
(1910), §14; E. P. Oberholtzer, Referendum in America (191 1), chs.
iii-vi; J. Bryce, Am. Commonwealth (ed. 1910), I, chs. xxxii, xxxvii,
xxxviii; H. V. Ames, Proposed Amendments (Am. Hist. Assoc, Report
for 1896, II); J. W. Garner, Amendment of State Constitutions {Am.
Pol. Sci. Rev., I, 213, 1907); W. F. Dodd, Revision and Amendment of
State Constitutions (1910); Cyclop, of Am. Govt. (1914), Arts, on Con-
stitution of the U. S., Amendments to; Constitutions, State, Amend-
ment of; W. W. Willoughby, Constitutional Law (19 10), I, ch. xxxvi.
Texts of Constitutions (State): F. N. Thorpe, Federal and
State Constitutions (1909); C. Kettleborough, State Constitutions (1918).
18. Sovereignty.
The conception of personal rights which are not bestowed
by a government, but inherent in organized society, has pro-
foundly affected the American theory of the nature of govern-
ment and the proper organization of government. From the
beginning of colonization to the present time, the usual basis
of American political thought has been that government is a
necessary evil, something to be guarded, circumscribed, and
checked. Our forefathers had a wholesome terror of absolut-
ism, and strove to protect themselves against it, not only by
carefully devised systems of government, but by theories which
denied the possibility of absolutism. Yet no fact can be
plainer than that in every organized community a part of the
people exercise authority over the remaining part ; and that
there is no practical limit to the extent of such authority,
except physical force.
To this ultimate power of compelling individuals to accept
the will of others within an organized state, we give the name
" sovereignty." The sovereign power extends to all the func-
tions that can be performed by organized society, and espe-
cially to such functions as can be performed only by some
central organism. War, foreign treaties, taxation for public
purposes, criminal jurisdiction, the personal service and obe-
dience of the individual, — these things are objects of the sov-
ereign power. Sovereignty is simply the ultimate expression
36
Fundamental Ideals. [§ lo
of the public will ; and the legal sovereign is that individual
or combination of individuals, within the acknowledged forms
of the government, which formulates and applies the power of
the nation.
The notion of an absolute power over the lives and property
of individuals is repugnant to the modern exaltation of the
individual ; and in various ways throughout the world the phys-
ical possibility of absolutism is softened and put into the
background by various devices of governmental organization
and by the growth of a humane and philosophic spirit. All
human governments must be carried on by the one, the few,
or the many, — by the despot, the oligarchy, or the democ-
racy ; and in all three types there are practical limitations on
an absolute use of power. The czar of Russia emancipating
the serfs, the French Directory putting down the sections,
our forefathers dealing with the Tories, — all found that they
must work through human agencies and that they were re-
strained or weakened by public opinion.
The oligarchic government of the so-called Greek, Roman,
and Venetian republics, and of England down to 1830, were
kept within bounds partly by internal differences of opinion,
and in England mainly by the inevitable participation of
the middle class in government. Despotism is tempered not
only by assassination, but by the practical necessity of getting
things done through agents : Alexander the Great was absolute
master of the people whom he conquered, but he was not
sovereign over his own army.
19. Sovereignty of the People.
The common phrases, " the people " and " consent of the
governed," suggest the distinguishing mark of popular govern-
ment which makes the legal constitutional depository of sover-
eignty nearly correspond to the physical possessor of ultimate
power. Where nearly all adult men can vote, the majority
which decides questions has presumably the preponderant
strength necessary to carry out its will ; hence sovereignty of
§ igj Sovereignty of the People. 37
the people avoids many of the shocks and revolutions which
under other forms are necessary to enforce the truth that in
the long run a minority cannot impose its will on a majority.
Yet the government of the many must be carried out by the
few ; and for a time the majority may yield to a small num-
ber of determined men, better armed or better organized or
simply in possession.
The long and bitter experience of mankind shows the ne-
cessity of protecting the minority, or the apathetic and dis-
organized majority, by such a formal statement of principles as
may cause the powerful to hesitate before applying the ultimate
test of sovereignty, namely, the possession of superior force.
Tradition, law, and especially definite and written constitutions,
compel usurpers to confront vested rights and prejudices which
are immense social forces ; hence the modern, and especially
the American, practice of multiplying checks on the methods
and extent to which the sovereign power shall be exercised.
One such check is the doctrine of the compact, — very
familiar at the time of the Revolution, — which was in effect
that government was founded on an agreement between those
who exercised power and those on whom it was exercised, and
that to violate the tenor of the agreement would justify resist-
ance. Another form of stating the same thing is the doctrine
of indefeasible personal rights, which cannot be destroyed by
any act of sovereignty : the doctrine does not in itself save
men from arbitrary imprisonment, but it causes their oppres-
sors to be objects of suspicion and dislike. The doctrine of
constitutional limitations on government is a way of preventing
occasions for dispute ; and the doctrine of checks and bal-
ances attempts to provide an automatic machinery which shall
sound an alarm at encroachments by members of the govern-
ing class on others of the same class. Underlying all these
ideas is the fundamental doctrine of revolution, — that is, of
the moral right of the governed to take arms and try to prove
their power as a sovereign majority, if the impalpable restric-
tions on government are not observed.
38 Fundamental Ideals. [§ 20
This conception denies the sovereignty of those who exer-
cise government, and puts it back on, those who have the
right, within legal forms, to create restrictions on sovereignty.
If, therefore, we can discover who has the ultimate legal power
to make and alter constitutions, we have found the ultimate de-
pository of sovereignty. In England, such a power rests in the
peers of the realm and the constituencies of the House of Com-
mons. In France, it rests in the electors of the Chamber and
the Senate, acting in a joint convention. In the United States,
the ultimate sovereign is the body of persons who, acting
through two thirds of the members voting in the two houses
of Congress, and through majorities of members voting in the
two houses of the legislatures of three fourths of the states,
may amend the federal constitution.
20. Representative Government.
Another vital question is, Through what medium shall the
popular will be expressed ? A direct democracy in which all
the participants may meet together is the simplest, and comes
nearest the exercise of popular sovereignty. Such direct gov-
ernments are possible only in small communities. In the
canton of Appenzell, for instance, on election day ten thousand
men assemble, each girt with a sword, and vote for their offi-
cers viva voce. The New England town- meetings in colonial
times and in the country towns to-day are the best examples
of such a direct democracy.
No such government can possibly work in a large community,,
and the method of representation has been devised to permit
the expression of the popular will. Representation by voting
delegates was unknown in the ancient world. In the Middle
Ages the imperial free cities sent delegates to the Reichstag ;
but they were instructed ambassadors, saying what was put
into their mouths by their principals at home. Perhaps the
first germs of the true representative system, in which dele-
gates once chosen act upon their own judgment, are to be
found in the thirteenth century in the introduction of county
§ 2i] Representative Government. 39
and then of city members into the English Parliament. Even
then, for a long time, the intention was to represent inter-
ests— land holders, the trading classes, and so on — rather
than individuals. Only in the nineteenth century has the
principle of representation been pushed to its farthest logical
extent, — namely, that every aggregation of a thousand people
is entitled to the same representation as every other thousand
people in local, state, and national legislatures.
21. English Precedents of Free Government.
Popular government, therefore, combines several concep-
tions : ( I ) the right and dignity of the individual ; (2) a frame
of government which will allow so large a participation as to
make the legal sovereign correspond closely to the actual sover-
eign ; (3) a restricting constitution to protect the rights of the
minority ; and (4) a representative system under which the
wishes of a numerous body of persons may be practically voiced.
The free institutions of America to-day are often traced to
the free customs of the ancient Germans. Our knowledge of
the Germans comes almost entirely from a few pages in Csesar's
Gallic War, and from an incomplete manuscript of the Ger-
ma?uca of Tacitus, who says that " in important affairs all the
people were consulted, although the subjects were discussed
beforehand by the chiefs." We have no positive evidence that
German institutions were conveyed over into England by
the Saxons in the fifth century. We know very little of the
Saxon governments previous to the Norman Conquest : there
were townships with a meeting of freemen ; there were local
assemblies, the hundred-moots and the folk-moots (including
shire-moots) ; a king who was merely a leader ; later there
was a witenagemot, or national council of the great nobles and
the clergy. After the Conquest of 1066 appeared the Great
Council; but not until 1254 did representatives come from
the counties, and not till 1265 from the towns. From that
time to the present day, the English Parliament has contained
both commons and nobles, and has recognized the principle
40 Fundamental Ideals. [§ 21
of the representation of communities which cannot attend
en masse.
Up to the Stuarts, ParHament was still much under the control
of the crown : Queen Elizabeth once informed the speaker of
the Commons that " liberty of speech was not to speak everyone
what he listeth or what cometh into his brain to utter." In
the seventeenth century, just while the American colonies were
being founded, the people of England fought out once for all
the question of the divine right of kings as against the right of
the people to govern through their representatives ; and the
representative House of Commons gradually pushed to the
front as superior to the hereditary House of Lords. The Peti-
tion of Right of 1628, the various constitutions of the Com-
monwealth period, and the Bill of Rights and Act of Settlement
of 1689 and 1 701, were more than a defence of personal lib-
erty : they clearly defined the supreme power of Parliament,
extending even to the transfer of the sovereignty from James II
to William and Mary : the right of the king to interfere with
members of Parliament for words spoken or action taken in
their respective houses was successfully resisted ; the king was
compelled to give up any claim to dispense with acts of Par-
liament. When the House of Hanover began to reign, in
1 7 14, it found the real authority of the nation expressed by
a parliament in which the House of Lords was controlled by a
small number of noble Whig families, and the House of Com-
mons was made up of elected representatives, a majority of
whom owed their seats to the same influence of the nobles ;
but the principle of representative government was still main-
tained. With many inequalities of representation, Parliament
reflected the public sentiment of thinking men : what England
sincerely wanted. Parliament would do.
In the course of their struggle of five centuries, the English
people gained the following distinct principles of free govern-
ment: (i) the right of the people to be represented in Par-
liament; (2) the right of Parliament to pass acts which
after 1707 the king must sign; (3) the right of Parliament
§22] English Precedents. 41
to lay or to withhold the only taxes which might be collected
of subjects ; (4) the right to supervise the royal accounts
and to impeach royal ministers who acted contrary to the law ;
(5) the right of members of Parliament to express their minds
in Parliament without responsibility elsewhere.
English local government during the two centuries of colo-
nization in America was of three kinds: (i) the cities, in
which the right to participate in the government was always
limited, and in some cases enjoyed by very few persons ;
(2) the counties, in which there was no popular govern-
ment at all, the authority being the court of Quarter Sessions,
a body of county gentlemen who acted as local judges and also
as administrators; (3) the parishes, in none of which was
there a representative government, and in few of which was
there a general meeting of voters ; many were governed by a
small board made up of a few people of consequence in the
parish and filling its own vacancies. Yet the desires of those
t'n the community who had an interest in public affairs were
feirly met by their system of local government.
22. Colonial Precedents of Free Government.
For the American colonist, the foundations of his system of
government were the institutions of his native country. No
significant influence came upon America from any other coun-
try than England : the French, Swedish, and Dutch settlements,
which were eventually incorporated into the colonies, were too
small and had too httle self-government to affect the course of
development. Yet in a century and three quarters of coloni-
zation, many changes came about in the new governments, for
the colonists were placed in a position where they had to act
for themselves or be swept out of existence. The conditions
of life in a new country made some parts of the English system
inapplicable : for instance, since there were no large cities, there
was little city government. The colonial communities were
also large enough to assume some functions of government
which in England could only be exercised by Parliament.
42 Fundamental Ideals. [§ 22
It was not in the minds of the first settlers to found govern-
ments at all : they were organized as commercial companies,
having seats in England, with charters like those of other
commercial companies of the time ; the stockholders of the
company held annual meetings — the so-called General Courts
— at the seat of the company in England. The London
Company, which founded the colony of Virginia in 1607, was
very like the East India Company, chartered in 1600.; and
until 1 6 19 it did not recognize any right of self-government
among the colonists. Even the colony of Plymouth was
founded as a commercial fishing venture, the colonists for some
years acting as a company, with all the property in common.
Colonial conditions speedily compelled a different form of
government. In 16 19, as a later royal governor said, "Repre-
sentative government broke out in Virginia," by the calling of
a delegate assembly from the planters. In 1630 the Massa-
chusetts colony deliberately transferred its charter to America
and held company meetings there, to the surprise and wrath
of the royal government. The people of Plymouth and of
Massachusetts settled separate villages, each of which speedily
began to take action in its own local affairs upon the model of
parish meetings in England. The scattered planters of Vir-
ginia and Maryland organized county courts of Quarter Ses-
sions, such as they had known in England. Thus, within a
few years from the planting of the first colonies, they began to
set up colonial and local governments not distinctly authorized
by England.
The home authorities, however, accepted the situation by
permitting the people of Plymouth for seventy years to carry
on a government without a charter ; they recognized the acts
of the Massachusetts government; and in 1632 they admitted
the right of representation by granting the charter of Mary-
land, in which the proprietor was expressly authorized "to
retain, make and enact laws of what kind soever, ... for
and with the advice, assent and approbation of the free-men
of the whole province."
§ 2 2] Colonial Precedents. 43
The type of colonial government was the same in the three
so-called " charter " colonies ; in the three proprietary colo-
nies ; and in the seven provinces having no written constitu-
tion, but by the instructions to their governors recognized as
self-governing. It included three main factors : —
(i) The royal governors, corresponding to the sovereign
in England, with large personal dignity and considerable
powers of appointment and general administration, acting
under directions from England, and armed with an effective
veto on the action of the legislature ; Rhode Island and Con-
necticut had elective governors.
(2) The legislatures, in general composed of two houses.
The upper council, appointed by the crown (except in the
charter colonies), was at the same time an administrative body,
a high court (in several colonies, the highest court), and also
a part of the legislature, in all three respects corresponding to
the English House of Lords. The lower house, or assembly
(in Massachusetts called the General Court), was composed
of elected representatives. The legislatures passed laws, sub-
ject to the veto of the governor; but even if he approved,
the laws might still be disallowed by the home government.
Colonial legislatures had abundance of interesting business :
they made the criminal laws, and provided for property and
other legal relations.
(3) The courts, composed of judges appointed by the
crown or governors, but paid by the colonial assemblies.
From the decisions of the higher colonial courts there was
appeal to the Privy Council in England, acting as a judicial
body.
In form the governors, the legislatures, and the courts were
all subject to the English government. That control was very
imperfect ; first, because under the English theory the colonies
were governed by the crown and not by Parliament (until just
before the Revolution, Parliament never passed any statute
specifically altering a colonial government) ; in the second
place, the colonies were far away, and England was much
44 Fundamental Ideals. ' [§22
occupied in the eighty years before the Revolution with Euro-
pean and naval wars ; hence the Americans were allowed to
care for themselves in most important matters, — they laid
their own taxes, they made their own Indian wars, they legis-
lated on many questions of personal right.
The suffrage in the colonies was much restricted. In
Massachusetts and New Haven, in the earlier years, nobody
could vote but a church member, that is, a Congregationalist ;
later, in all the colonies there was a property qualification,
usually the ownership of land, sometimes the additional pay-
ment of taxes. The forty shilling freehold, or ownership of
land worth two pounds a year rental, was the usual condition
of county suffrage in England ; a similar condition applied to
the colonies where land was cheap, was easy to satisfy ; and
hence, without a change of principle, the suffrage was much
enlarged. Still, the number of voters in proportion to the
population, up to the Revolution, was not more than a third
or a fourth as many as at present ; the majority of the adult
men were not voters.
In local government, again, the colonies applied familiar in-
stitutions but expanded in unexpected directions. The parish
meeting in England was a small affair ; in the New England
colonies, where large communities settled within sound of the
same church bell, the town-meeting became an intelligent and
active little popular assembly. Down to the _^Revolution, and
even to the present day, the town-meetings of rural towns were
effective forums for the discussion of public questions ; and the
participants had a good political education, dealing with such
ordinances as the following : —
" It is voated and ordered that from and after ye first day
of aprill next Noo Geese shall be Lett goe vpon the Common
or in the highways nor in the water with in this Township of
Prouidence or with in the Jurisdiction thereof nor vpon any
other persons Land Excet those that one the Geese : on the
pennilty of the forfiture of all such Geese that are so found."
"Mr. Jonathan Spreague Junr Js Chosen deputy to serue
§ 23] Earliest State Constitutions. 45
att the next Genr. Court of Accembly to be held att Newport
Jn this Jnstant June Jn the Roome of mr. Andrew Harris."
In the Southern colonies, where there were no villages, but
the people settled on plantations most of which had a tide-
water front, such popular gatherings were impossible. The
local government was a select vestry of the parish, — a self-
perpetuating body after the English model, — and for the
counties the court of Quarter Sessions, a body of appointed
local legislators, also on the model of the English shire.
In all colonial history, the only city charters of much impor-
tance are the Dongan charter of 1684 for New York, and
Penn's charter of 1691 for Philadelphia.
The criminal law was as frankly cruel in the colonies as
elsewhere ; but the poorest individual had a good opportunity
of bringing his grievances to the attention of the men of
power ; and, upon the whole, life was freer and opportunities
were better than anywhere else in the world.
23. The Earliest State Constitutions.
The experience of the colonial government made the Revo-
lution possible, for it gave opportunity for the x'\merican people
to organize new governments which could better provide for
the needs of the people.
In 1775 the old colonial governments suddenly collapsed,
because the people drove the royal governors out : thus, the
provincial courts of New Jersey declared that their governor,
William Franklin, ought not to be obeyed, and that all pay-
ments of money should cease. In a few of the colonies, as
Massachusetts, the old assembly kept up its functions ; in
others, irregular revolutionary conventions or congresses took
3ver the direction for the time being. Until November, 1775,
all the colonies professed still to own allegiance to the crown ;
but, on November 3 and 4, Congi^ss passed a vote advising
the people of New Hampshire and South Carolina to establish
governments for themselves, and promised military force in
their defence. Thereupon began the era of written state con-
46 Fundamental Ideals. [§ 23
stitutions. The word " state " had sometimes been applied to
the colonies, and was adopted by all the new poHtical units
except the "commonwealths" of Massachusetts, Pennsylvania,
and Virginia.
For the organization of state governments the precedents
were those of the existing English and colonial governments ;
but they took care to formulate their principles of government
in written documents, very brief at first, but afterwards ex-
tended into the type of the present state constitution. First
in time was the vote of the New Hampshire Convention : " In
Congress at Exeter, January 5, 1776, voted, that this colony
take up civil government in this colony in the manner and
form following." Ten other states, from 1776 to 1780, framed
regular constitutional documents. The charters of Connecti-
cut and Rhode Island were already so liberal that with very
slight changes they answered for many years as state consti-
tutions.
The original state constitutions usually contained two parts :
(i) A statement of the rights of individuals, which practically
repeated, and often used the phrases of, the English docu-
ments of personal liberty from Magna Charta down, and of
the American Declarations of Rights of 1765 and 1774. The
bills of rights in general recorded the doctrine of the social
compact, — namely, that government rests upon the actual or
tacit consent of the governed ; they asserted the great rights
of free speech, of speedy and fair trial, of taxation only
through representation ; one clause in North Carolina even
went to the prohibition of perpetuities and monopolies. It
was not the conception of the framers of these constitutions
that the rights formulated were the only rights of men or
were created by their enactments : they held them to be in-
alienable, founded in human nature and the experience of
mankind, and inserted in the constitutions only for their better
safeguard.
(2) The second part of the early constitutions was a frame-
work of government, usually expressed in very brief phrases.
§ 23] Earliest State Constitutions. 47
With one exception, they provided a single governor, but shorn
of many of the powers enjoyed by the colonial governor ;
and judges, in some cases appointed by the governor, in some
cases elected by the legislature. This balanced government
of three departments was founded on colonial practice, still
prevails in every state, and was adopted in the later federal
system. The suffrage was continued much as before the Rev-
olution, with a property qualification and a consequent small
electorate. Three of the new constitutions, Vermont, Penn-
sylvania, and Georgia, made the experiment of a single house,
which was soon abandoned. In general, few restrictions were
put upon the legislative authority, and it was everywhere ac-
cepted as a principle that the legislatures could exercise any
powers not expressly forbidden in the text of the constitution,
or contrary to traditional right.
Of the eleven new constitutions, ten were put into force
by the congress or convention which drew them, and which
represented the sovereign authority of the people ; but those
conventions were also the legislatures of the time. Massachu-
setts worked out a different system: in 1778 the constitution
framed by the legislature was submitted to popular vote and
failed; in 1780 Massachusetts called a convention expressly to
frame a constitution, which took effect only after a popular
majority ; and most constitutions since that time have been
framed in the same manner. One defect of the early consti-
tutions was that few or none made distinct provision for later
amendment ; nevertheless each of the first series, except that
of Massachusetts, was replaced within about twenty years by
a new, complete constitution.
This era of constitution-making deserves analysis. Its sig-
nificance was : ( I ) the consciousness that the constitutions
must have a written basis and clearly restrict the governing
authorities; (2) the conception that the making of a consti-
tution was a slow affair which required special attention, and
eventually that a constitution ought to be framed by a special
convention and then ratified by popular vote ; (3) though the
48 Fundamental Ideals. [§ 24
suffrage was limited, the form of government was very demo-
cratic, for the largest governing power was the elective legis-
latures, balanced and checked by an executive and by the
courts ; (4) the constitutions included elaborate statements of
the rights of the individual, rights preceding and independent
of government; (5) the written constitution was considered
to be a law of a superior and more permanent character than
any ordinary statute.
24. Genesis of the Federal Constitution.
Federal government was nothing new in history in 1776 :•
the Greeks had many federations ; the Latin tribes had a fed-
eration ; the mediaeval, Italian, and German cities developed
federations; and in 1787 there were in existence three living,
though decaying, forms of federal government, — the Holy
Roman Empire, the Swiss union, and the United Netherlands.
From 1643 to 1684 America had the experience of the United
Colonies of New England, formed so "that as in Nation and
Religion, so in other respects we bee and continue one " ; but
that federation had for a century been almost forgotten, and
had no influence on our present federal union.
The real forerunners of the constitution of 1787 were the
various forms of colonial union from 1690 down: congresses
of governors or other representatives of the colonies were held
from time to time, usually to discuss joint Indian treaties ;
many statesmen, including King William III and William Penn,
suggested permanent forms of colonial union; in 1754 a con-
gress at Albany recommended a plan of union, drawn up by
Benjamin FrankUn, in which the votes would have been pro-
portioned to the population of the colonies; in 1765, the
Stamp Act Congress, with delegates from nine colonies, acted
as the mouthpiece of discontent against taxation, and adopted
a ringing statement of the rights of colonists.
All these meetings were occasional or undefined ; but in
September, 1774, delegates of twelve colonies met at Philadel-
phia, and speedily took the name of " Continental Congress."
§ 24] Genesis of Federal Constitution. 49
They met simply to protest, and adjourned after preparing
spirited appeals to the king and the British people, and draw-
ing up the so-called " Association," or agreement not to import
British goods.
The Second Continental Congress met May 10, 1775, after
war had actually broken out at Lexington and Concord. Like
its predecessor, it was made up of members springing from
irregular congresses and conventions, representing the revolu-
tionists in the various colonies ; and not a single member had
instructions which justified him in aiding to organize a govern-
ment. Nevertheless, in the face of the difficulties before it,
the Congress accepted the responsibility of organizing a military,
naval, financial, and diplomatic service. The powers of the
Continental Congress were, however, never defined except by
practice. It raised armies and navies, borrowed money, com-
missioned ambassadors, made treaties, issued paper notes, and
took charge of territory and Indians, simply because there
was nobody else to perform those services for all the colonies.
From the first it was expected that a written federal consti-
tution would be drawn up. The Declaration of Independence,
July 4, 1776, made the necessity for a closer form of union
greater ; and Congress from time to time discussed articles of
confederation, and finally submitted them in November, 1777.
The states were slow in ratifying, principally because the
Articles of Confederation did not give Congress control over
Western territory; but on March i, 1781, the last ratification
by a state legislature was communicated to Congress, and the
Articles of Confederation went into force, superseding the
vague and changeful authority of the Continental Congress.
The government under the Confederation was brief and un-
satisfactory. Congress ceased to sit in October, 1788, less
than eight years after the Articles went into effect. Congress
did not have powers to lay taxes directly, or to regulate com-
merce between the states or with foreign nations ; and the
feeble executive and judicial officers were all appointed by and
responsible to Congress. Nevertheless, the Confederation was
4
^o Fundamental Ideals. [§24
on the whole a successful experiment in government : it had
powers never before distinctly granted by a federal constitu-
tion ; it could assess sums of money upon the states ; over the
Western lands it assumed necessary powers not granted, and it
passed three ordinances for their sale and government ; it suc-
cessfully negotiated with Great Britain the treaty of peace of
1783, and several commercial treaties. Above all, the Con-
federation was a profound lesson to the people of the United
States of the necessity of yielding greater powers to a general
government, if the country was to take its place among nations ;
and it was a nursery for later statesmen, — Hamilton, Jeffer-
son, Madison, and Monroe were all members of Congress at
one time or another, and learned to understand its workings.
After the pressure of war was taken off in 1783, the workings
of the Confederation government showed that a stronger
national authority was necessary.
That stronger authority was furnished by the Federal Con-
vention of 1787, which was suggested as far back as 1780,
strongly advocated by Washington in public and private let-
ters, formally urged by the legislature of Massachusetts in 1785,
and definitely proposed by a preliminary convention at Annapo-
lis in 1786. The Convention was organized on a plan which
still remains the best for such a work : it was composed of
delegates appointed solely for the purpose of framing a new
constitution, and it included a body of practical men, most of
whom had seen service in both colonial and state governments.
By the use of their experience, and by the constructive genius
of men like Washington and Madison and Hamilton and Roger
Sherman and Charles C. Pinckney and James Wilson, the con-
stitution was so made as to answer to the needs and purpose
of the United States then and for the century since.
Mr. Gladstone has called the federal constitution "the
most wonderful work ever struck off at a given time by the
brain and purpose of man." Mr. Gladstone was mistaken :
the federal constitution is not a creation, but simply the re-
corded and well-arranged statement of what experience showed
§ 25] Unity. 5 1
to be the safest method of governing the American states.
The fathers of the constitution appUed the experience of Eng-
Ush government from the Conquest to the time of the Revolu-
tion, the experience of the colonies, the fresh experience of
the new states, the experience of the Confederation. The
president was a larger state governor, his veto was taken
almost verbatim from the Massachusetts constitution ; the
Supreme Court was on a larger scale the colonial and state
courts and the English Privy Council acting on appeals ; the
Senate was the old colonial council expanded ; the House of
Representatives was the colonial and state assembly over
again ; the constitution was simply the crystallization of cen-
turies of actual practical experience of free and representative
government, adapted to the needs of a federal republic of
immense area and possibihties.
25. Unity of American Government.
Since the federal constitution applies to the whole United
States, and since the general government is powerful and im-
presses the imagination, Americans have come to look upon
the federal constitution as the one national constitution, and
upon the states and their constitutions as subordinate. Such
was not the conception of the fathers of American government,
nor is it the actual system under which we now live. There
is no national union without states, and equally there are no
states without union ; there is no town, city, or county, except
as a part of a state or a territory. The correct view of Ameri-
can government is that every form of government, national,
state, or local, emanates from the same authority, — namely,
from the people of the United States. The fundamental basis
of American government is the right of a people to organize
and form governments for themselves. Organization of state
governments preceded the formal organization of a national
government; and hence the federal constitution throughout
presupposes the existence of states, but of permanent states
which shall thereafter remain in the Union. The original state
52 Fundamental Ideals. [§25
governments were framed with the expectation that there would
also be a national system, and with the intention to continue a
system of local governmental units. From the beginning, the
Americans had been accustomed to the control of England
over their governors, their legislatures, and their courts ; and
hence they saw no loss of liberty in the submission of state
governors, state legislatures, and state courts to a central
authority springing from the whole nation ; and they expected
to control their' own towns, counties, and cities.
Ill ratifying the federal constitution, every state thereby con-
sented to a modification of its own constitution : when, for in-
stance, they agreed that the United States have the sole power to
make treaties, they formally abjured authority to make treaties ;
when they adopted the federal power to lay taxes, they tacitly
agreed that state taxes should not interfere. The principle of
American government is, each for all and all for each. In this
sense, the people of Massachusetts in 1787 helped to modify the
state constitution of North Carolina, and the people of Georgia
helped to lay restrictions on the commonwealth of New York.
Whatever the historical theory as to the origin of the Union,
in practice there is only one source of authority, one form
of government, and one group of fundamental powers. The
source is the American people as a whole, who alone have the
power, through a complicated machinery, to alter the federal
constitution and thereby may alter their state constitutions, their
city charters, and their local governments ; the state govern-
ments and the local governments are not separate from each
other or antagonistic to each other, — they are each other, in
that they are bound by the same system of law and tradition.
The one form of government is the whole body of govern-
ing officials, organized into three great groups, — a national
service with its administrative center at Washington, state staffs
centered at the various state capitals, and local meetings or
bodies, each acting in and for its own place. The president
of the United States is no more independent in his authority
than the governor of a state or the mayor of a city : they are
§26] Separation of Powers. 53
all parts of one system, all subject to the restrictions of the
federal constitution, all acting under a body of tradition in
which each must respect the prerogatives of the other.
The one group of fundamental powers is all the powers
inherent in any government, less a few restrictions expressed
in the federal constitution. In practice, however, the nation,
states, and local governments are to a large degree set off from
each other through their functions.
26. Separation of Powers.
In a centralized country like France, the unity of govern-
mental power is more clearly seen because there are no states,
and the localities are directly subject to the central authority.
In the United States the exercise of power is decentralized
through two great restrictive principles which seem to be
inbred in American life — separation of powers and division
of powers.
The first of these restrictions is the separation of powers, or,
as it is often called, " checks and balances." In England,
after the Norman Conquest, royal power was mihtary, and
the king was at the same time the source of law, of adminis-
tration, and of justice. Gradually Parliament grew up to
power, till, after the last royal veto was written in 1707, it
became the sole legislative authority. By the Act of Settle-
ment of 1 701, the judges got a tenure during good behavior,
and the courts became free from royal interference. Hence
the great French publicist, Montesquieu, in his famous book
V Esprit des Lois, published in 1748, thought that he had
discovered in England a system by which the legislature made
law : the king could not make it, but could execute it ; and
the courts could neither make nor execute laws, but could
apply them to specific judicial cases ; thus each of the three
departments of government was a check upon the other. As
a matter of fact, there has never been such a subdivision in
England : when Montesquieu wrote, the king had become
inert, the judges could not hold the acts of ParHament void,
54 Fundamental Ideals. [§ 27
and Parliament was already the great motive force, as it still
remains.
The American colonies practically had this subdivision of
powers : the governor could check the assembly, and the
assembly could check the governor ; and the courts to some
degree could check them both. Our forefathers liked that
system, and they incorporated it into their state constitutions ;
but the Confederation was organized virtually on the parlia-
mentary plan, — its executive officers were appointed by Con-
•gress, were responsible to Congress, removable by Congress,
and Congress also set up and pulled down courts. This is
practically the sole experience within the United States of a
system of parhamentary responsibility, and it was completely
disrupted by the federal constitution. In 1787, separation
of powers was formally introduced into the federal system : a
Congress with large law-making powers was created ; a presi-
dent was provided, neither elected by Congress nor responsible
to it ; a system of courts was set up to apply the federal law,
and very soon to lay down the mighty principle of its right to
hold statutes invalid.
27. Division of Powers.
The second great American principle of government is the
division of powers between the nation and the commonwealths,
and within a commonwealth between the state and local au-
thorities. The fundamental principle of our federal govern-
ment is that the inherent sovereign powers in the community are
normally exercised through the state governments, and there-
fore that any residuum of power is left to the states and not
to the Union. Under our system of fixed and rigid constitu-
tions, the division of powers is expressed, first, in the federal
constitution, and then in the state constitutions ; and disputed
questions must usually be decided by the courts. Therefore,
if we wish to know what in practice are the limits between
national and state powers, and also between powers exercised
directly by the states and indirectly by the local governments
§27] Division of Powers. ^^
springing from the states, we must search the recorded judicial
decisions.
To the national government, and hence to the national offi-
cials, are committed the immense powers of war and peace,
finances for national purposes, foreign relations, control over
all territory not actually organized as states and over all com-
merce which does not begin and end within the boundaries
of a single commonwealth.
The larger body of legislation is left to the states, which
regulate most of the relations of individual to individual,
which create and regulate corporations, which have control
of property rights, land tenure, inheritances, education, and
religion, supervise by far the greater volume of all business
and commerce, administer almost the whole of criminal law,
and care for the weak and dependent. In most respects the
states come nearer to the individual than does the federal
government.
Local governments are less separated from the state govern-
ments than the states from the national government, because
their form is entirely dependent upon easily alterable state
legislation ; but the habits of the people are such that all the
states practically concede to the localities and to the cities the
immediate personal care of the population. In their hands
are the streets, water, lighting, education to a large degree,
many dependent classes, local transportation, and the main-
tenance of public order.
To sum up, questions of health, cleanliness, and morality, the
questions which most closely and most frequently touch the
individual, are given to the local governments ; business and
criminal relations to the states ; national defence and foreign
relations to the nation. The national control of foreign and
interstate commerce makes the division of commercial powers
indefinite and disputed.
56
Fundamental Ideals. [§ 28
28. The Written Constitution.
One of the strongest parts of American government is the
respect for written constitutions. The constitution of a coun-
try is really its method of working : the so-called " principles
of the British constitution" are nothing more than the gen-
erally accepted ideas as to what the government of Great
Britain ought to undertake, particularly as determined by the
historical knowledge of what it has undertaken.
We Americans use the term in a somewhat different sense.
By "constitution" we mean a specific written instrument
defining the government ; and an executive or legislative act
is unconstitutional if contrary to the terms of that instrument.
The five elements of the fundamental conception of our con-
stitution are, that it is definite, comprehensive, supreme over
all other forms of written law, fundamental, and alterable only
by a special process.
( 1 ) The first of these principles is very ancient : the Ten
Commandments, the twelve tables of Roman law, the capitu-
laries of Charlemagne, were put in writing or graven on tables
in order that men might know the law and thus obey it, and
that the law might be preserved as it was uttered.
(2) A good constitution must cover the whole field of gov-
ernment, at least in general terms. Laws which relate to prin-
ciples of great importance often get to be regarded as almost
irrepealable : thus the organization of the Roman assemblies
was crystallized by a succession of venerable statutes ; in the
Middle Ages arose the system of granting imperial and royal
charters to individuals and to cities, universities, abbeys, and
other corporations, in which charters often a detailed form of
government was laid down. These documents probably sug-
gested the similar charters of the early American colonies ;
but they were all partial, incomplete, and depended on a
higher authority than their own.
(3) During the English Commonwealth the idea was thrown
out, perhaps because of the influence of American governments,
§ 28] Written Constitution. ^y
that there ought to be a fundamental written instrument,
superior to any act of Parliament. In 1647 the army began
to draw up written schemes of government, of which the most
important was the so-called " Agreement of the People," issued
in 1649. It declared itself to be intended "for a secure and
present peace, upon grounds of common right, freedom, and
safety " ; it reformed the representation, by apportioning it ac-
cording to population ; it fixed the electorate, established a
council of state, and contained liberal provisions with regard
to religion ; it gave to the representative body " supreme trust
in order to the preservation and government of the whole " ;
. . . except that six Particulars " are, and shall be, understood
to be excepted and reserved from our Representatives."
This constitution was never put into force ; but in Decem-
ber, 1653, a so-called " Instrument of Government " was drawn
up, because, as Cromwell said, " In every government there
must be somewhat fundamental, somewhat like a Magna Charta,
which shall be standing, unalterable." This is the only writ-
ten constitution which has ever prevailed in England, and it
came to an end with the death of the Protector, in 1658.
The idea of a superior written law was clearly revived in the
Habeas Corpus Act of 1679, the Bill of Rights of 1689, and
the Act of Settlement of i 701, though in theory those acts were
all revocable. The best examples of written constitutions in
this period are the royal charters of the three New England
colonies, and the famous Fundamental Orders, drawn up by
the people of Connecticut in 1638, which is the first well-
articulated constitution ever made by representatives of a
popular community for their own government. When the
Revolution broke out, the states made documentary consti-
tutions for themselves.
The Articles of Confederation were intended to be a national
constitution, and have three of the characteristics already
mentioned : they were fixed in writing, superior to statutory
law, and required a special process for amendments.
To carry out the third criterion of a written constitution, —
58
Fundamental Ideals. [§ 28
that it shall be superior to other laws, — is a hard thing in a
federation where there are several forms of law. A prime
difificulty of the Confederation was the lack of a method by
which the supremacy of the federal constitution could be
asserted over state constitutions. The constitution of 1787
distinctly reformed that difificulty by a clause providing that
" 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 ; and the Judges in every
State shall be bound thereby, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding."
Under the federal constitution has been created a hierarchy
of laws. First and supreme is the constitution of the United
States ; second, come federal treaties and laws, consonant with
the constitution ; third in efificacy are the state constitutions,
which must conform to the federal constitution and also to
consonant laws and treaties ; fourth, comes state legislation,
which must not be in contravention with either one of the
three higher forms of law ; fifth, come the ordinances of local
and municipal governments, which must not go beyond any
of the four higher forms of law ; sixth, come the by-laws of
corporations of every kind, such as universities, commercial
companies, benevolent societies, all of which must not go con-
trary to any of the five higher forms already mentioned.
(4) A good constitution must be brief, or else it becomes
a code of laws. The original federal constitution has 4,000
words, and may easily be committed to memory by any quick
student ; the state constitutions vary in length, the first New
Hampshire constitution of 1776 having 900 words, and the
Louisiana constitution of 1898 having 40,000 words. In gen-
eral, the longer and more detailed the text of the constitution,
the more opportunity for dispute about its meaning. The
increase in length is due to the habit of looking upon a consti-
tution as superior to a law : conventions insert in a new consti-
tution anything that it is desired to put beyond the power of
§ 29] Constitutional Amendments. 59
legislation ; hence the constant tendency is to increase the
prohibitions and limitations in the written constitution, and
thus to tie the hands of pubhc officials for the time being.
29. Preparation of Constitutioual Amendments.
The fifth criterion of a written constitution is that it be sub-
ject to a special form of amendment. Though in some Euro-
pean countries constitutions are enacted like ordinary laws, a
special method is essential if the distinction between ordinary
statutes and a supreme constitution is to be observed. Effi-
cient methods of constitutional amendment must call for
special consideration, must attract public attention and invoke
public opinion ; for a poor constitution once adopted cannot
easily be changed.
The federal constitution provides two different methods for
its own amendment. The first is the calling of a convention,
similar to the Philadelphia Convention of 1787, on the appli-
cations of the legislatures of two thirds of the states ; it has
never been employed, although there was a movement for a
convention in 1788, and in 1861 there was strong pressure
for a convention to find a means of obviating the Civil War.
The ordinary method for the submission of federal amendments
is a concurrent vote of two thirds of both houses. Hence the
initiative of amendment may be taken by states through their
senators, or by any membei of either house who cares to sub-
mit a joint resolution.
In the first century of the federal government, more than
1,900 amendatory resolutions were submitted, many of them
including more than one clause. Out of all those 1,900, only
nineteen have ever received the adhesion of two thirds of both
houses, of these only fifteen have actually been added to the
constitution, and these fifteen are the result of two periods of
discussion, 1787 to 1802, and 1865 to 1869.
In the states the submission of separate amendments is much
more common, and complete revisions by conventions ap-
pointed for that purpose are also frequent. Various methods
6o Fundamental Ideals. [§ 29
of amendment are prescribed by the state constitutions. In
some states, no amendment can be considered which has not
been recommended by two successive legislatures ; another
method is to require a special majority in each house, some-
times as many as three fourths of the members ; in some states,
amendments cannot be submitted oftener than once in a fixed
number of years ; in a few cases commissions have been created
to draft a constitution and report it to the legislatures. In
Delaware, the legislature makes constitutional amendments,
but only after a previous legislature has voted them and a new
election has been held. The most common method is that
amendments shall be approved by a special majority of both
houses, and thereupon submitted to the people for their rati-
fication. No complete constitution has been drawn up by a
state legislature since 1778, with one exception, — Nebraska
in 1866.
A constitution loses coherence after it has been several times
amended, and the growth of the community sometimes requires
a new statement of principles. In some states conventions
must be called at fixed intervals, usually about once in twenty
years. Conventions have rarely any other functions than to
prepare revised constitutions, and the members are chosen by
special election. Men will attend a constitutional convention
who would not give their time for service in the legislature;
hence the personnel of the convention is usually higher, and it
is more accustomed to defer to the expert authority of jurists
and public men. A convention sometimes sits for months, and
usually submits its work as a whole, sometimes setting apart
for a special popular vote some clause upon which the whole
constitution does not depend. For instance, the New York
Convention of 1894 subjected to separate votes clauses on
apportionment and canal improvement.
From 1792 until near 1890, about a fifth of the new constitu-
tions were put in force by the fiat of the convention. Neverthe-
-^ess the attempt in 1858 to admit Kansas as a slave state, under
§ 3o] Constitutional Amendments. 6i
a constitution which had not been completely submitted to
popular vote, was thought to be a violation of the dearest rights
of the American people. However, since 1890, conventions in
Louisiana, South Carolina, and Virginia have assumed the right
to declare a new constitution in force without a popular vote,
for the simple reason that the voters under the old constitution,
if they had been consulted, would have shown a considerable
majority against the new constitution; and such action is
legal if the previous constitution does not require a popular
vote on amendments.
30. Ratification of Constitutional Amendments.
Both separate amendments and complete constitutions usu-
ally require popular ratification after they have been formu-
lated by a legislature or by a convention. Every amendment
to the federal constitution has received formal ratification by
the state legislatures in three fourths of the states : but the con-
currence of sixty-eight legislative houses in thirty-four states is
a degree of agreement almost impossible except in the face of
a manifest public danger. Out of the series of twelve amend-
ments submitted by Congress in 1789, only ten got the three-
fourths majority ; the Eleventh Amendment — on the judiciary
— passed both houses almost unanimously in 1 794, but was
nearly four years in process of ratification ; the Twelfth Amend-
ment, submitted in December, 1803, — on the election of the
president, — was ratified in nine months. In 1803, President
Jefferson urged the adoption of a constitutional amendment
covering the annexation of Louisiana ; but he could not even
get it introduced. A curious amendment, prohibiting the
granting of titles of nobility by states, passed both houses with
very little difficulty in 18 10, and got twelve of the necessary
thirteen state ratifications. In 1861 the so-called " Corwin
Amendment," intended to prevent secession by a compromise,
was passed by two thirds of both houses and received the un-
necessary signature of the president, but was ratified by only
three states, and was speedily dropped. The three great Re-
62 Fundamental Ideals. [§3°
construction amendments, the Thirteenth, Fourteenth, and
Fifteenth, were ratified from 1865 to 1870 only by great
pressure upon the states which had been in rebeUion ; for not
one of those amendments could have been adopted without the
approval of a considerable number of Southern state legislatures.
Since the Fifteenth Amendment, no proposition of amendment
has received the approval of two thirds of both houses.
In every state except Delaware, single amendments must
come before the people. One state, Rhode Island, in which
there was no provision for making amendments, was by this
inelasticity in 1842 brought to the verge of civil war, and after-
wards adopted the usual system of constitutional amendments.
The foundation idea of popular ratification is undoubtedly the
"compact theory," — that government is founded on agree-
ment of the persons governed,' the favoring opinion of the
majority being accepted as that of the whole.
Nevertheless, a very considerable number of state constitu-
tions have been put in force without any submission to the
popular vote. In the first Revolutionary series, Massachusetts
was the only state to ask for popular sanction. Down to 1897,
there had been 132 constitutions framed by conventions, of
which 88 were submitted to popular vote and i was submitted
to another convention : 43 were declared to be in force by the
convention itself; of these, 20 were first constitutions, and 23
amended constitutions.
Popular votes on constitutions or single amendments are
usually taken at the time of some regular election, and receive
less attention than the names of the candidates for office.
Amendments to the constitution thus submitted are likely to be
adopted ; but sometimes people vote down the whole work of
a laborious convention, as in 1854 in Massachusetts. A ma-
jority of the votes cast is usually sullficient to make the neces-
sary constitutional change. Once voted on, there is no further
question of the legality of the amendment, even though the
constitutional convention has gone farther than prescribed by
the statute creating it: clauses duly submitted and favorably
§ 3i] Construction and Application. 63
voted become a fundamental part of the constitution. Of
course no popular ratification can give authority to a clause in
a state constitution which is not in accordance with the federal
constitution.
31. Construction and Application of Constitutions.
The text of the federal constitution is legally supreme over
all other forms of law within the boundaries of the United
States : it goes beyond custom ; it supersedes any principle of
international law which collides with it; it overrides previous
and subsequent state constitutions and statutes ; it controls
local and municipal ordinances, and the acts of all corpora-
tions, public and private. Nevertheless, few subjects are
habitually so much discussed by the courts as the meaning of
the federal constitution, and in like manner of state constitu-
tions. A constitution, like a statute, is phrased in words drawn
up by human and often fallible men ; and there may even be
two clauses of a constitution which do not agree with each
other. The meaning of the words of a constitution, and espe-
cially of the federal constitution, becomes of great importance :
for instance, at intervals from 1787 to 1895, the courts have
without much success endeavoured to discover what our an-
cestors meant by " direct taxes."
Yet we must know what the constitution means in order to
appreciate the meaning of statutes "pursuant " to the constitu-
tion. Every person who is called upon to perform a public act
must conform to the federal constitution, but in order to do
so he must make up his mind what the constitution means :
the president, when he issues an order, thereby assumes that
he is acting within the constitution ; the members of Congress
in passing on a statute must act within the restrictions of the
federal constitution. The courts, and especially the federal
courts, are oftenest called upon to apply the constitution, be-
cause in private suits their attention is called to rivalries in
meaning between that instrument and national or state statutes.
Inasmuch as the courts deal continually with vested rights, they
64 Fundamental Ideals. [§ 31
must know the traditional use of language, and the meaning of
phrases in a legal sense. To the Supreme Court of the United
States in the last instance belongs the mighty office of expound-
ing the federal constitution, of showing the adjustment between
its parts, and of pointing out in all varieties of law any lack of
harmony with it.
The general principles of the construction of constitutions
and statutes are simple : words are used in their ordinary sense,
if it can be ascertained ; where two clauses seem to conflict,
the courts will usually so construe the words as to give effect
and vitality to the whole ; the intention of the framers may be
consulted. The courts, however, take extraordinary precau-
tions : they construe constitutions and laws only when they
are obliged to consider them in order to decide cases actually
before them ; and they apply previous principles, and work
out a theory of the constitution and laws, which may be carried
forward from year to year. To the federal and state courts,
therefore, belongs the general duty of expounding and apply-
ing the various constitutions. In the course of a century a
body of connected, and on the whole coherent, doctrine has
been laid down in court decisions with regard to the meaning
of the federal constitution. The state constitutions change
more frequently, are much more loosely drawn, and each new
one requires a new body of decisions to establish its meaning.
Part II.
The Will of the People.
CHAPTER IV.
SUFFRAGE AND ELECTIONS.
32. References.
Bibliography: Cyclop, of Am. Govt. (1914), I, 104, 563-565, 730;
II> 335) 519; III; 457) 629, 634, 697; F. W. Dallinger, Nominations for
Elective Office (1897), 221-224; Channing, Hart, and Turner, Guide
(1912), §§ 203, 272; A. N. Holcombe, State Govt. (1916), 483, 485. See
also references to ch. iii above.
Ideals of Democracy: W. W. Willoughby, Nature of the State
(1896), ch. xiv; C. E. Merriam, Am. Pol. Theories (1903); C. W. Eliot,
Am, Contributions to Civilization (1897), Nos. 1-6; Cyclop, of Am.
Govt. (1914), Art. on Democracy, Hist, of; F. A. Cleveland, Organized
Democracy (1913), pt. vi; H. Croly, Promise of Am. Life (1909), ch.
ix; B. Wendell, Liberty, Union and Democracy (1906), ch. iv; A. B.
Hart, National Ideals (1907), chs. v, vi, xix; T. Jefferson, Writings
(Washington ed.), I, i-iio; A. Lincoln, Works (various eds., extracts in
Am. Hist. Leaflets, No. 18).
The Suffrage: A. B. Hart, Southern South (1910), ch. xiii; W.
B. Munro, Govt, of Am. Cities (1916), ch. v.; P. O. Ray, Pol. Parties
(1913), ch. xii; E. A. Hecker, Women's Rights (2d. ed., 1914); Cyclop,
of Am. Govt. (1914), Arts, on Fifteenth Amendment; Negro Suffrage;
Suffrage; Women's Suffrage; E. McClain, Constitutional Law (1910),
§§ 198-200; A. E. McKinley, Suffrage in the Colonies (1905); A. N.
Holcombe, State Govt. (1916), ch. vi; J. Bryce, Am. Commonwealth
(ed. 1910), I, 419; II, 103, 718, ch. xcix; C. F. Bishop, Elections in the
American Colonies (1893), pt. i, ch. ii. — Sources: C. A. Beard, Readings
in Am. Govt. (1909), §§ 162-164.
Elections: J. Bryce, Am. Commonwealth (ed. 1910), II, chs. Ixvi,
Ixvii; J. R. Commons, Proportional Representation (2d. ed., 1907);
F. A. Cleveland, Organized Democracy (1913), chs. xvi, xix; E. C. Griffith,
Gerrymander (1907); C. E. Merriam, Primary Elections (1909); A. N.
Holcombe, State Govt. (1916), ch. viii; Cyclop, of Am. Govt. (1914),
Arts, on Ballot; Ballot, AustraUan; Election System in U. S.; Election
Systems, Comparison of; Vote; Vote, Popular; Voting, Compulsory;
C. L. Jones, Readings on Parties (191 2), ch. viii; P. O. Ray, Pol. Parties
(1913), ch. xiii; P. S. Reinsch, Readings on Am. State Govt. (1911),
5 65
66 Suffrage and Elections. [§ 33
ch. viii. — Tables of votes, in Cyclop, of Am. Govt. (1914), Art. on Presi-
dential Elections; Tribune Almanac; World Almanac; E. Stanwood,
Hist, of the Presidency (1916).
Popular Votes on Legislation: E. P. Oberholtzer, Referendum
in America (191 1), chs. vii-xix; J. Bryce, Am. Commonwealth (ed. 1910),
I, ch. xxxix; F. A. Cleveland, Organized Democracy (191 3), chs. xx-
xxv; A. L. Lowell, Public Opinion and Popular Govt. (1913), chs. viii-
XV, App. B; J. D. Barnett, Operation of the Initiative (1915).; W. B.
Munro, Initiative, Referendum, aitd Recall (191 2); W. B. Munro, Govt,
of Am. Cities (191 2), ch. xiii; H. Croly, Progressive Democracy (1914),
chs. xii, xiii; Bacon and Wyman, Direct Elections and Law Making
(1912); Cyclop, of Am. Govt. (1914), Art. on Legislation, Direct; A. N.
Holcombe, State Govt. (1916), ch. xiii; C. S. Lobinger, People's Law
(1909), chs. xxvii, xxviii; D. F. Wilcox, Govt, by all the People (1912);
C. L. King, Initiative, Referendum and Recall (Am. Acad. Pol. Sci.,
Annals, XLIII, 1912). — Sources: Beard and Shultz, Docs, on the Initi-
ative (1912); C. A. Beard, Readings in Am. Govt. (1909), ch. xxiii;
jC. L. Jones, Readings on Parties, ch. x.
33. History of Anglo-Saxon Suffrage.
■Representative government necessarily depends on a body
of persons having the right to be represented, that is, to vote
for representatives. Nobody quite knows who chose represent-
atives to the Anglo-Saxon foll<-moot ; but, after the Norman
system, first the counties, and then also the cities, had the
right to send members to the Great Council. In the English
cities, the constituents were the freemen of the city, that is,
those who had a membership in the municipal corporation
established by royal charter. In the English counties, the
suffrage went to the landholders ; and gradually was devel-
oped the theory that the necessary qualification was the
possession of a forty-shilling freehold, — that is, ownership of
land that was worth two pounds a year, which in early times
was a high property qualification ; later, ether forms of land-
holding were allowed.
The American colonists brqught over with them the idea of
a limited suffrage, and a suffrage different in conditions for
local and colonial elections. In the first half century of colo-
nization there was no property qualification, but in Massachu-
setts and New Haven none but church members could vote ;
§ 34] Suffrage. 67
then sprang up the idea that the people who had property
should be responsible for the conduct of public affairs ; and
gradually, beginning about 1681, the ownership of land, or
of considerable personal property, was made a qualification
everywhere in the colonies. An acceptance of the principles
of the Christian religion was necessary, and Quakers were for
a long time excluded. People lost the suffrage for bad charac-
ter or behavior, — for instance, " those notoriously vitious or
scandalous, as common Lyars, Drunkards, swearers or apos-
tates from the fundamentals of religion."
The federal constitution very wisely avoided the creation of
a uniform national suffrage, by requiring that voters for presi-
dential electors and representatives should be the same as
those for the most numerous branch of the state legislatures ;
hence every enlargement of state suffrage was a corresponding
extension of national suffrage in that state. Religious qualifi-
cations began to drop off soon after the Revolution ; and after
1 815 property qualifications lost ground, partly because it
began to be seen that a man who did not own property had
an interest in the welfare of the country, and partly because
throughout the Union it was common to create fictitious prop-
erty rights, so as to give a poor man the suffrage. After 1830
the coming-in of great numbers of emigrants put a premium
on the extension of the suffrage, because it was believed that
they would prefer states in which they could easily acquire a
vote ; and hence eleven states in the Union still permit a man
to vote before he is naturalized.
34. Qualifications for Voting.
The theory of representation does not require that every
member of the community shall vote, and there are several
classes of exclusions, (i) First comes real or supposed in-
capacity : children are not independent until the age of ma-
jority, of legal change to manhood and womanhood ; and no
one votes till twenty-one years old. Criminals, the insane,
persons in confinement, are necessarily cut off from the polls.
68 Suffrage and Elections. [§ 34
Paupers in institutions, and in some states those who receive
outdoor relief, are excluded from voting, on the ground that a
pauper is nearly always a person inferior in mental or moral
equipment.
(2) The second group of disqualifications is temporary:
the almost universal practice is to require a man to reside in
a state one year before he can vote, and to reside in a vot-
ing district for thirty or sixty days. In England a man may
vote in every county and city and university in which he pos-
sesses the qualifications there required ; one person has cast
thirteen legal votes in the course of a day : in the United
States it would be a criminal offence for a man to vote in two
residences at the same time. Closely akin to the residence
qualification is the requirement that foreigners shall have at
least declared their intention to become citizens.
(3) A third group of qualifications is material. Though
the holding of real estate has long since disappeared as an
absolute requisite of voting, a tax qualification still continues
in many states of the Union, although it has disappeared in
most of the Northern states. There is a small poll-tax require-
ment in Pennsylvania, and in many of the Southern states.
Most of the richest and most prosperous communities in the
United States have abandoned all forms of property or tax
qualifications.
(4) A fourth group of restrictions is moral and intellectual.
In some states those who have been convicted of crime are
nominally excluded ; but in practice it is so easy for a man to
go to another community that the restriction is of very little
account. Those who give or receive bribes are in about two
thirds of the states disqualified for a brief time, or permanently ;
but the restriction is seldom applied. Religious disqualifica-
tions appear in a few state constitutions, which provide that no
person shall vote who does not believe in a God and a future
life. No states any longer fix a criminal penalty on agnosti-
cism or atheism ; under the laws of the United States, however,
habitual polygamy, even though claimed to be a part of reli-
§ 34] Qualifications for Voting. 69
gion, excludes from the suffrage in territories, and this is also
the case in Utah and Idaho. Connecticut, Massachusetts,
Maine, Wyoming, Washington, and Delaware have each a
genuine educational clause, by which, in order to vote, a man
must be able to read at least a section of the constitution,
and to write — usually his own name : thousands of people
will not put their capacities to the test. In Mississippi,
Alabama, South Carolina, and Virginia, since 1890, a so-
called educational qualification has been inserted into new
constitutions, the usual form being that an elector shall
be able to " read or understand " the clauses of the state
constitution. The real purpose of these provisions is to dis-
franchise the negro, since the white election officer is with
great difficulty persuaded that any negro '•' understands " the
constitution. In four states there exists the "grandfather"
clause, — namely, that the educational limitation shall not
apply to descendants of a person who was a voter before
1867 or a soldier in the Civil War. This is expressly in-
tended to relieve illiterate white persons, and is of doubtful
constitutionality.
Negroes having the property or tax qualification were allowed
to vote in some of the Northern colonies, and in North Carolina
until 1835. Several of the Northern states, as Connecticut,
New Jersey, Pennsylvania, and the Northwestern states, pro-
hibited negro suffrage; as late as 1867 Ohio voted against it
by a majority of 50,000. Soon after the Civil War, the suf-
frage was conferred upon the negro in most of the new state
governments by reorganized legislatures in 1867-69; but it
wsLS plain that if the dominant element of the white race re-
covered control, the negroes would be disfranchised. Hence,
by the Fourteenth Amendment in 1868, the representation
of any state was to be diminished if it disfranchised a class
of voters. The Fifteenth Amendment, ratified in 1870, went
much farther, by providing that no citizen should be deprived
of the suffrage " on account of race, color, or previous condi-
tion of servitude." By the decisions of the Supreme Court, this
JO Suffrage and Elections. [§ 35
clause does not apply to Asiatics ; and the states may, and
three of them do, prohibit the voting of members of the Mon-
golian race.
Notwithstanding this provision, since 1874 the negro has
been deprived of the suffrage in most of the Southern states,
either by terrorizing him so that he does not offer to vote ; or
by devising a system of balloting tending to throw him out on a
technicality ; or by unabashed miscount of votes ; or by a com-
plicated system requiring tax receipts. The recent Southern
constitutions, therefore, are simply a legalization of previous in-
direct and often illegal methods for preventing the reception of
the negro's vote.
35. 'Woman SufTrage.
The non-admission of women to the suffrage was the uni-
versal practice in every country having the representative
system until about thirty years ago, when some of the Ameri-
can territories began a new system. There are now four
states, Colorado, Wyoming, Idaho, and Utah, in which women
have suffrage ; one, Washington, in which they formerly had it,
but have now lost it. In several of the other states, woman-
suffrage amendments have been submitted, but have failed of
popular approval ; Kansas alone allows complete municipal
suffrage ; Iowa and Montana allow a vote on the issue of
bonds and like financial questions ; many more allow women
to vote for school officers. Twenty-six of the forty-five states
recognize the right of women to participate to some degree
in the choice of public officers and the decision of public
questions.
The right to vote usually includes the right to be elected
to office : hence, in the full woman-suffrage states, women fre-
quently sit upon juries ; where women have school suffrage,
they may be and sometimes are elected local and state super-
intendents ; where they have municipal suffrage, as in Kansas,
wornen are sometimes elected mayors ; and in all the states
women are occasionally appointed to executive boards, partic-
ularly those relating to charities and corrections.
§36] Woman Suffrage. 71
The main argument in favor of woman suffrage is that there
is no logical reason for discrimination : if the suffrage is a duty,
women ought to perform it ; if it is a privilege, they ought to
enjoy it ; if it is a means of education, they ought to profit
by it. The experience of woman-suffrage states is, however,
that though the presence of women at the polls tends to
take away roughness and violence, the interest of women in
elections is smaller than that of the men, and after a few years
only a small proportion of them vote. This is notably the case
in school elections in states where women have school suffrage,
luuugh in Boston and Cambridge the woman vote appears to
hold the balance of power in the election of school committees.
The principal arguments against woman suffrage are, first,
that women have domestic duties which are not consonant
with public service ; and, second, that it is convenient to have
a select electorate, and that the voting of women does not
make any permanent and significant difference in the outcome
of parties, while it does create a new responsibility for women.
Although full woman suffrage is now making way in the North-
western communities, many of which have few women in
proportion, it has for many years made no gain in the older
communities. On the other hand, school, municipal, and tax
suffrage, though widely extended, have not interested women
so much as was expected.
36. Electoral Districts and Registration.
Before votes can be cast, two preliminaries are common, —
districting and registration. The administrative subdivisions
of the states and territories constitute the districts for the
choice of the more important ofiicers ; counties make dis-
tricts for the choice of county officers, cities for the election
of city officers ; but for the choice of members of Congress
and of state legislatures, the states must be subdivided by the
legislatures, and this gives rise to the practice known as the
"gerrymander." Acts of Congress of February 2, 1872, and
January 16, 1901, provide that the districts for the choice of
72 Suffrage and Elections. [§ 36
representatives shall be composed of contiguous and compact
territory as nearly equal in population as possible ; but the
rapid growth of population quickly disturbs the most careful
apportionment, and legislatures frequently subdivide in irreg-
ular fashion, so that one party shall have a small majority in
many districts, and the other party shall have a large majority
in fewer districts. By this process it is possible to give the
minority more members than the majority: thus in 1893 one
Connecticut congressional district had 122,000 inhabitants,
and the adjoining district had 249,000 ; Chicago, with about
one third of the population of Illinois, had only one fifth of
the members of Congress. This process is freely applied
also in state elections: in 1891 the Supreme Court of Wis-
consin annulled two state apportionment acts in succession
because in absolute defiance of the state constitution, and the
legislature had to be called to pass a third act. The process
of gerrymandering is a denial of the true system of popular
government.
In colonial times, all the people of a town or a county as-
sembled to cast their votes ; but at present in every state
small subdivisions are provided, for two reasons : first, in order
that voters may know each other's faces and thus detect fraud ;
and second, that there may be time enough to get in the whole
vote in one day. In New York City there are nearly 1550
such voting precincts, or about 400 voters to each precinct.
The unwritten, but nevertheless almost universal, rule is
that for any elective office a man must live in the district in
which he is chosen. In Germany or England or France any
qualified person may be elected to the national legislature from
any district, and this gives an opportunity for young men to
win their spurs by contesting close districts, and also makes it
possible to keep in public life, eminent men whose home dis-
tricts support the other party. In America every councilman
must live in his ward, every state representative in his county
or town, every congressman in his district ; and the gerry-
mander is frequently so employed as to throw the residence of
§ 37] Districts. 73
a public man into a district which is hostile to him politi-
cally. Thus in 1890 the Ohio legislature made a majority
against Mr, McKinley, and he lost his seat in the House of
Representatives.
In about two thirds of the states in the Union there is a
system of registration before elections. The advantage is that
it gives time beforehand to settle contested questions as to a
man's fitness to vote, and to identify him beforehand so as
to detect him if he represents another voter ; it also offers
means of preventing some forms of frauds in the count of votes.
There are two systems of registration. Of the first of these,
New York is a type : a man must every year present himself,
usually in person, and see that his name is recorded ; no name
can legally get on the list unless it is demanded by the voter.
The other system, employed in Massachusetts, Pennsylvania,
and many other states, puts a man who has once qualified per-
manently on the list, until some reason is given for striking him
off; this leads to dangerous frauds, because false names go on
and names of dead persons are not expunged. In some cities
scores of thousands of illegal registrations stand from year to
year, and are voted by repeaters who go from ward to ward.
Of course the annual registration practically requires a man to
appear twice, once to register and once to vote, and therefore
probably somewhat reduces the vote ; but preliminary regis-
tration is in cities the only possible safeguard against illegal
voting on a large scale.
37. Methods of Voting and Count of Votes.
The usual method of voting in England down to 1872 was
viva voce, a system which made public the voter's preferences,
and which could not be applied at all in elections for a large list
of officers. In the state of Kentucky, until the new constitution'
of 1891, some of the elections in rural communities continued'
viva voce .- in Jackson County, for instance, the election for sheriff
consisted in arranging the friends of one candidate on horseback
on one side of the road and the friends of the other candidate
74 Suffrage and Elections. [§ 37
on the other side, and the longest line got the election. At
present in every state all elections must be by ballot ; first, to
make possible a secret vote, and, secondly, to preserve the evi-
dence of the vote cast.
Originally the ballots were written ; then it was found that
the candidate had a better chance if his friends provided printed
tickets beforehand ; then, as the practice developed, tickets
were prepared for a long list of candidates, the parties fre-
quently adopting devices or colors which made their ballots
known. If a man did not wish to vote for everybody on the
ticket, he erased names, or substituted other names ; this was
called "scratching," "splitting," or "cutting."
In practice the ballots ceased to be secret, since the party
tickets were usually recognizable even when folded ; and frauds
were often practised by printing under the party heading a
ticket which contained candidates of the other party. In 1888
began a great reform, which has swept over most of the country,
— the so-called " Australian ballot system," under which all the
candidates appear upon one ballot, prepared and distributed
by the state, and the voter indicates on the ballot his choice
of candidates. Since all the ballots are alike, and since they
are prepared in a booth out of sight of other persons, secrecy
can be maintained. Furthermore, third parties and independ-
ent movements can get their candidates before the voter with-
out the former machinery of "strikers" and "heelers," who
distributed only the tickets for which they were paid. The
Australian ballot may also furnish evidence against a man who
votes fraudulently.
The various forms of Australian ballot are reducible to two :
in the first, the candidates for each office are arranged in alpha-
betical order, each accompanied by the name of the party or
organization which nominated him, and the voter must have
sufficient intelligence to follow through the ballot and pick out
his favorites ; in the other type, each party ticket is printed
in a separate column, and the voter may cast his vote for all the
candidates of his party by putting a mark opposite the party
6
hepublicas ticket.
For President,
wiLiiM Mckinley.
For Vice-President,
THEODORE EOOSEraLT.
*
DEMOCRATIC TICKET.
For Prraldent,
■fflLUAJI J, BRIAN.
For Tlce-Pn?sldent,
ADLAI E. STETENSON.
o
SOCUUbT LABOrt TICKET.
For President,
JOSEPH F. MALLONET.
For Vice-President,
VALENTINE REMMEL.
o
PROHIBmOxV TICKET.
For Presidenl,
JOIK G. WOOLLET.
For Vice-President,
HEXRT B. METCALF.
INDEPENDENT
NOMINATIONS.
o
SOCUL DEMOCRATIC TICKET.
For President,
EUGENE V. DEBS.
For Vice-President,
JOB HAERIMAN.
BLANK COLUMN.
"^sstr
CH^^'^-^V^.S^
':^'M'BZT
CHARL^S-^TSlT^HETT
-%r-P^'r^r-"^
FRANCIS B, illTCHELL
ROBERT C TITUS.
MAX FORKER.
WILUAH W SMITH.
CARL VOSS.
SAMUEL 1, UNOERHILU
ISRAEL, J. UERRITT.
CHRISTIAN BAKKE
HENRY M, RANDALL.
AJLIU5 MaLPERN.
SAXIOEL ROWLAND,
E&WIN KE-yPTON.
CHARLES VOLLUER.
ISAAC K. FUNKL
VALENTINES WORTH.
MLCHAEL J. DADV.
EDWARD KAUFMANN.
JAMES BYRNE.
BE.-*JAMIN Rn'.NOLDi
PETER E BURBOWES.
CHARLES H. BUSSELI.
HENRY GEORGE, rit
ARCfjlE JARROLD.
ROBERT T.STOKES.
ARTHUR K MAVNARO
JOHN KISSEL
WILLIAM J. SEATON.
CHARLES P. J. WALSH-
EDWARD A. SWEZEY.J^
ALFRED R. PETTITT.
_ ^"^'"'J-J}^^^ —
-
RUDOLPH CHARLES BACHEB.
PETER FlEBICEfi.
WILUAM E- BROWN.
THOMAS PEHDEHCASr.
JOHN E. WALSH.
JOHN KELLY.
■ROBERT SCOTT.
FRANZ W GASTElCEi
WILLIAM E. BILLINGS.
SAMUEL KAHN.
RICHARD COULD.
CHARLES W. UCLELLAN.
WILLIAM WOLLNIK.
■tIESMAM J. KATi
MICHAEL H. WHALEN,
EPHRAIM SIFF.
TIMOTHY.N. HOLDEN-
HENRY O. VITAUUS.
FRANK TJLFORD.
-
RICHARD FITZPATBIOC
JOHN Mcelroy,
. -GEORGE GETHIH.
HENRY O. JACKSON.
- ^BtVuR p. STURCE5- "
RICHARD. HUNTER
EMORY CUMMINGS.
JAMES W.,PURNSIDE
HEKRY HACHEMBISTER.
CHARLES KEVENEY.
JOHN McKEE.
ANTHONY J. OfeSCHGER.
JAMES YEREANCE.
JOHN J, HARRINGTON.
CHARLES C CRAyPORD,
CHARLES E.tATIMEB.
HENRY LU3L
EMANUEL W. BLOOMINGDALE
CHARLES FREDERICK HAETIIING
FREDERICK C FULLING.
JEREMIAH T BROOKS.
HERMAN aUADE
WILUAll 5HERER.
JOHN MCQUADE.
LEON R. piLoirr.
ALBERT T HULL.
HAi.'5 HEDBICK
FRANK V. MLLLARD.
JOHN BR15BEN WALKEIL
MAGNUS SVENSON.
CLARE.^CEM.LYON.
FRANK HERRMANN,
CLARENCE LEKOVt
EDWARD STOCKEfl.
GEORGE ABELSOR
JA.yES C RIDER.
WILLIAM WHHKELM.^iJ
JOHS N, COBDTS.
JOHN C HOOHNBEEt
OWEN CARHAHER.
MITCHELL DOWNING.
RICHARD KITCHELT
PETER McCARTHr:-
THOMAS H. CAMTION.
MATHEW STEEL
NATHANIEL B. POWERS.
WILLIAM UPPELT
samiTel l uunson.
WILLL<M a. KEELEK.
ALBERT W.BROWER.
LEVI DEDRICK
WILUAM NEUMANN.
WILLIAM S. C WILEV:
ROBERT WEMPLt
EDMIWD BULLENT
SPE.SCER aiLLlSCTON.
PRANI SCHMITT.
ROYAL KEVVTON.
CKABLES-OSCAR M=CREEDY.
CKRlJCfAH MAHR
WILUAM H, PLACE
CHRISTIAN WARD,
WILLIAM T OKEIL
HENRY t BARNARD-
C^RIETL^N BOSSBACR
JONATHAN E HOAa
JOHN R BULLARD.
DAVID M.ANDERSON.
LAURENCE CT.ANCT.
JAKES A. TRAINOR.
FREDERICK B. DEVENDORF.
AMENZORBUTTERnELD,
ROBERT M-cKINKON.
-
ABRAM a, WEAVER.
GEORGE E COFFIN.
WILLIAM C CRAY.
CHARLES IVILLIAMSON,
WtLLlAU G. PHELPS.
THOMAS KEEHY.
FRANK DANKKOFF.
EDWARD H- MILLER
CHARLES H, WHEELER
RANSOll B. TRUE.
GEORGE WELLS SAUSBURY.
JAMES S, WHITE.
ARTHUR HAY.
CHARLES S WILSON,
ROBERT BUSHSr.
-
JAMES W.UIL.NEL.
JOHN. H. MORRIS,
JOHN W. BAHRUS.
JACOB THIS^EN,
FRANKUH D SHERWOOD
HOSEH H BOCKWELI.
ELMER HARRISON,
CASPER C. DECKER.
GEORGE C JONES
CHARLU r. PRENTICE
JAMES J MAHONEY.
ROBERT WILL
WILUAM t BOOTH,
JOSEPH C DOU-
GEORGE EASTUAN.
JAMES E CONLEY.
CHARLCS A. RUBY.
BENJAMIN CMO.NTGOMERY.
CEOHCE L WASHBURHE
CKWSTWN KLINCK.
W1LLL.M SIMON.
CHARLES NELSON.
EDWIN PUZEY.
HERMAN REICR
CEOBCE'URBAN. JL
JOHN McCUJRE WILEY.
JA.\IESW.SliARPE
JOSEPH H. SHEARER.
JUUUS CERBEB.
HERBERT a RICH.
DANIEL P. TOOMEY. '
ROBERT JOHNSON.
JOHN NICHOLSON.
ADOLPH JABUNOWSKL
BEN,A&V^"3=^kuj.
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,
AN AUSTRALIAN BALLOT
§ 37] Methods of Voting. y^
emblem, which can be recognized by a man who cannot
read.
Another method of voting now making headway in the
country is by machines. Several mechanisms have been per-
fected, under which a man may vote by going into a booth and
pulling a lot of knobs, one for each candidate. The advantage
is the quickness of the system, for the moment the ballot is
completed it is also cast ; and the machines are also self-
counting, so that at the end of the poll the total vote for each
name on the ballot is shown on dials ; the system thus obviates
errors and possible frauds in counting complicated votes.
Voting-machines make their way slowly, partly because of their
expense ; partly because, if they get out of order, it is difficult
to keep up the election ; and partly because they make un-
necessary the force of election officers who are accustomed to
get a large day's wage.
In England and in the colonies, elections often lasted several
days or a week; and for many years after 1787 the choice of
presidential electors and representatives took place on differ-
ent days in different states. All the states have now come to
a system of one single day. Since 1845 ^^1 ^he states are by
act of Congress compelled to vote for presidential electors on
the Tuesday after the first Monday in November ; and most
of them put their state elections on that day. Since 1872
that is also the normal day for electing members of Congress.
The deposit of ballots is subject to many frauds. " Repeat-
ing " is voting more than once in the same or in different pre-
cincts. The " marrow-fat " fraud consists in a voter's putting
in more than one ballot, while the clerk puts down fictitious
names to cover the extra ballots. The " tissue ballot " system
allows a voter to put in a handful of tickets at once. Some-
times ballot-boxes have votes in them before the voting begins,
and for that reason New York formerly used glass ballot-boxes.
Previous to the Australian ballot, in some states judges were
ailowed to count the ballots from time to time during the day,
a process which easily lent itself to fraud.
jt Suffrage and Elections. [§ 38
The result of the election will still be vitiated unless an
accurate and fair count is held ; and in no part of the repre-
sentative system has there been so much corruption. Voting-
machines of course make counts by tellers unnecessary ; but
the usual system is to have the election ofificials, — usually a
supervisor and clerks, — begin counting as soon as the election
is over. The so-called " straight party tickets " are put in
bundles and counted, each candidate receiving his credit ;
there are numerous " split tickets," and every ballot has to
be carefully examined ; the numbers are then tabulated and
reported to some state authority. In a hotly-contested elec-
tion the returns are at once given to the newspapers, and
within six hours after the closing of the polls on the day of
the election the result is often known.
Sometimes elections are very close : a governor of Massa-
chusetts was once elected by a majority of one ; and in
the best systems the ballots are preserved until a recount
can. be had. One difficulty is that the Australian ballots are
numbered, so that it is possible to discover a ballot cast by a
particular person ; and recounts are sometimes demanded for
no other purpose. Many states have very careful statutes,
describing the count of votes and fixing heavy penalties for
falsifications. New York City, owing to the efforts of Henry
George, has one of the best systems of counting votes known
in the United States.
38. Minority and Proportional Representation.
To learn the will of the people is easy, if there is only one
office to fill and only two candidates for the place ; but in
many elections there are more than two candidates for each
office : a man, who prefers A and if he cannot be elected pre-
fers B, has no opportunity for making a second choice count.
In states where in all the sections one party has a preponder-
ance, a minority numbering many thousands may have few or
no members in the legislature. Thus in Vermont, where the.
Democrats are about one fifth of the voters, they sometimes
have not a single member in the legislature, -
§ 3^] Proportional Representation. 77
To meet these conditions, various schemes of minority and
proportional representation have been worked out. In the
minority system each voter has more than one vote, and may
distribute as he likes : in Illinois, for example, three members
are chosen to the legislature from each district, and every
voter has three votes ; if the minority all " plump " for one
man, he is practically certain to be elected, and the result is
that in the legislature the minority gets about one third of the
members. This method has the striking disadvantage that if
only two candidates are nominated by the majority, and one
by the minority, the three are almost certain of election, so
that it is not necessary to put forward strong candidates.
Proportional representation in its many forms aims to take
account of second choices, by taking from the candidate hav-
ing the highest number of votes all those above a majority, and
giving them to some. other person who shall be designated by
the voter. Of course until all the vote is assembled, canvassed,
and calculated, you do not know who is elected. In Switzer-
land, under the system, it has been found that by judicious
nomination the election of all but a few candidates is certain
beforehand. Underlying all these schemes is the assumption
that a man is not represented in the legislature unless he has
voted for the sitting member ; in practice, members habitually
represent and consult constituents from the minority, and one
of the greatest elements of strength in a public man is that he
has friends outside his own party. At present neither the
minority nor the proportional system seems to make headway
in the United States.
The original idea of American elections was that everybody
must get a clear majority. At present, almost everywhere in
the United States, a plurality elects, with the result that the
person designated may have not more than one third of the
total vote ; and conceivably the friends of both the other two
candidates would have united on one to defeat the successful
man. Nevertheless, in nine cases out of ten, the man who
gets the plurality would have had a majority if there had been
78 Suffrage and Elections. [§ 39
only two candidates ; and the system is instantaneous and so
convenient that it is applied even to the choice of the group
of presidential electors from a particular state. The only
important elections in which an absolute majority is still re-
quired are in a few states where the legislature chooses the
governor if no candidate has the proper majority ; and in the
choice of senator of the United States, which is held by a
legislative session, in which it is easy to get a succession of
ballots.
39. Popular Votes on Constitutional and Legislative
Questions.
The primary idea of elections in America is that they are
held to select officers of government, including all heads of
communities (except the president of the United States) and
many other executive and judicial officers, state, municipal,
and local. Especially important and prized is the popular
choice of all members of legislative bodies (except United
States senators), because they frame the laws.
As soon as communities get beyond the point of town-meeting
or county assembly, where pros and cons can be discussed, it is
impossible for a large number of people to arrange the details of
legislation, and to be sure that one clause agrees with another
or one law with another. Nevertheless, almost from the begin-
ning of our present government, popular votes have been taken
on the most important of all forms of legislation, — namely,
new constitutions and constitutional amendments, and now the
method is in various ways extending to ordinary legislation.
I. The Swiss, whose government closely resembles that of the
United States, have adopted our method of popular vote on
constitutions, and have gone far beyond us by taking the opin-
ion of the people on specific laws. In some of the cantons of
Switzerland, every statute, after going through the legislative
council, is subject to a special vote of the people by what is
called the " compulsory referendum " ; and in some cases the
law is voted upon by sections, so that a part may be passed
and the rest rejected. This system undermines the legislature,
§ 39] Popular Votes. 79
by making it simply a body which prepares the details of a
measure but can take no responsibility for its enactment.
2. A second system is the "optional referendum," which is
even more widely spread in Switzerland and has taken root in
America : a law duly passed goes into force, unless the legis-
lative body or a specified portion of it directs that it be sub-
mitted to a popular vote. This is practically a veto power,
which is not invoked on most laws, and when invoked perhaps
results in approval of the measure.
3. Popular votes are most common in local affairs, (i)
Under state statutes, on laws relating only to a particular
municipahty or locality ; such as a city charter, or a new system
of popular improvement, or waterworks, or street viaducts, or
subscriptions to railroads : thus in 1894 the question of uniting
the cities of New York and Brooklyn and the smaller surround-
ing places was submitted to a general popular vote. (2) Under
general statutes applying to groups of local governments, — as,
for instance, that no local indebtedness shall be incurred for
specified objects without the consent of the people. In states
which have the local-option system of liquor-selling, each local-
ity votes for itself, from period to period, whether it will or
will not exercise the privilege of prohibiting the sale of liquor
within its limits.
Votes may be taken, under special or general acts, on a
great variety of subjects, — as the foundation of schools, the
improvement of roads, fencing in cattle, taking oysters with
scrapes or dredges, the use of voting machines, and a hundred
other questions.
4. The Americans are less accustomed to popular votes or
state statutes of general obligation. Nevertheless, beginning
about 1842, states began to put into the constitution provisions
against the incurring of state debt except by popular vote.
From 1850 on, popular elections have been held from time
to time on the location of state capitols and other public
buildings ; and the question of the extension of the suffrage,
especially of woman suffrage, has repeatedly been subjected to
a compulsory referendum.
8o Suffrage and Elections. [§ 39
5. The Swiss have a third form also called "optional refer-
endum " by which statutes that have gone through the legisla-
tive forms may be submitted to vote on the request of a certain
number of citizens. This system has been adopted by a few
states : in South Dakota, by a constitutional amendment of
1898, one twentieth of the number of voters, at the last previ-
ous general election may demand the submission to popular
vote of any statute which has recently passed the legislature;
in Nebraska, one fifteenth of the state voters may demand a
state referendum, and one fifteenth of the local voters may
demand local referendum on local ordinances ; in Iowa and
California the referendum may also be demanded in some of
the local governments.
In Switzerland there is also a national referendum on peti-
tion of 30,000 voters, who may compel about 400,000 other
voters to come up and express their will. The tendency is
to reject the statute on referendum, but the same measure
is sometimes approved on a second popular vote. In the
United States a referendum on acts of Congress would be .
very difficult and clumsy, and would practically destroy the
influence of the Senate.
6. A sixth kind of popular vote is called the initiative, —
a system by which a given number of voters may on petition
require the legislature to pass a statute of a designated kind
and submit it to popular vote, or may actually draw up a bill in
detail (the so-called " formulative initiative ") and demand a
vote upon it. In 1891 this system was extended to the Swiss
national government ; but in the three cases in which it was
tried down to 1898, the proposed bill was rejected by the
people. So far, this system has been introduced in the United
States only in South Dakota, Utah, and Oregon ; on some
local questions in some states, a part of the voters may require
the holding of an election to decide such questions as the site
of a county seat, the fencing in of live stock, the estabhshment
of high schools. In Connecticut twenty-five legal voters may
insist on a town meeting to vote on the sale of liquor ; in
§39] Popular Votes, 8i
Utah fifty voters in a small town may demand a vote on a
free public library ; in South Dakota, Nebraska, and the city
of San Francisco a specified number of electors may propose
a measure on any subject, which must be submitted to popu-
lar vote. In states having no such system the same result
can be reached by a numerously-signed petition to the state
legislature.
What are the advantages and disadvantages of popular legis-
lation ? The advantages plainly are that the people may force
the hand of apathetic or improperly-influenced legislatures, by
upsetting legislation which does not reflect the sentiment of the
community ; the referendum and initiative are both intended to
arouse public sentiment by giving the voters questions of real
practical importance to vote upon ; again the local referendum
adapts "general legislation to the needs of the popular com-
munity. The objections are: (i) People do not take an
interest in such elections : in Switzerland 570,000 votes were
cast in 1898 on a law for the nationalization of railways ; but the
year previous, on a constitutional amendment relative to forests,
there were only 240,000 votes. In some of the cantons of Switz-
erland, where legislative questions come up very frequently,
many people get so tired of making up their minds that they
will not vote ; and when a statute was passed by Zurich fining
voters who did not appear on election day, the result was
simply the casting of thousands of blank ballots. (2) The
referendum destroys the sense of responsibility of the legisla-
tures and of governors, and hence of those who vote for legis-
lators, (3) Complicated and balanced statutes, involving
economic and social questions, are hardly to be framed or
voted upon by a simple yes or no vote.
Nevertheless, there remains the fact that a legislature which
unexpectedly develops corruption, or which is subject to irre-
sponsible chieftains, may be called to order by a popular vote ;
and that such a system relieves the serious burden upon good
citizens of watching legislation it> order to stop it before it
goes through the legislature.
6
82 Suffrage and Elections. [§4°
40. Exercise of the Suffrage.
A very important question with reference to the suffrage is
the actual degree of participation of qualified voters. In a
country like the United States, with a continual stream of
immigration, a large number of adult men cannot legally vote
because they cannot legally be enrolled till they have lived five
years in the country. In 1900, according to the census,, there
were in the states of the United States 20,800,000 men of
voting age; of these 2,150,000 were unnaturalized foreigners,
part of them in the country too short a time to be naturalized,
the rest not sufficiently interested to acquire citizenship. That
leaves 18,650,000 presumptive voters in addition to perhaps
150,000 allowed to vote in the states before being naturalized.
The total vote cast in the presidential election of that year was
13,960,000 or 74 per cent of the possible vote; the propor-
tion in 1840 was 78 per cent; in i860, 80 per cent; in 1880,
81 per cent.
What has become of the rest of the voters ? Property quali-
fications have now been abandoned, but the tax qualification
cuts off perhaps one twentieth of all the votes in the states
where it is applied. Moral and intellectual limitations dis-
qualify over 300,000 men, — namely, prisoners in cells who had
committed infamous crimes, insane people, and paupers. The
educational qualifications of Massachusetts and Connecticut
actually cut out only a few thousand, but the apparently similar
qualifications in the Southern states disfranchise several hun-
dred thousand. Change of residence shortly before an elec-
tion causes the temporary disfranchisement of perhaps one
fiftieth of the voters.
Making deductions for all these causes we account for
1,700,000 out of the 4,840,000 stay-at-homes; but a further
deduction must reasonably be made for accidental causes.
About 600,000 men are over seventy years of age, and many
of them are physically unable to get out. Most able-bodied
men average one week of sickness every year, which cuts out
§ 4o] Exercise of the Suffrage. 8 3
one fiftieth of the voters below seventy. Various causes take
perhaps one in fifty of the voters away from home on election
day. The ordinary accidents of life, sudden calls, forgetful-
ness, account for another group. Of the men who take the
trouble to register in the city of New York, about 10 per cent
do not go to the polls ; that is, about 4,000,000 of the 4,840-
000 abstentions can .be accounted for without imputing neglect.
In the South the vote is reduced by the general prevention
of the negro vote either by positive laws or by irregular prac-
tices. In Southern states with a large rural population, like
Tennessee and Arkansas, the proportion of voters is very small
because of the physical difficulty in getting to the polls. In
the closely-populated Northern states a presidential election
will bring out as many as 90 per cent of the actual voters ; and
there have been instances where a state cast more votes than
there were known voters. In a presidential election, the num-
ber of people who stay away because they are not interested to
vote is very small, smaller than in most stockholder or club
meetings : the vote upon the Massachusetts constitution of
1780 was about one twenty-fifth of the population; in the
presidential election of 1880 it was about one sixth of the
population.
In state and local elections abstention is a more serious
evil: thus in New York City in 1888 the vote was 18 per
cent of the population ; in the local election of 1890, under
12 per cent; in the election for governor in 1891, about 13
per cent. In general, local elections call out the smallest
vote ; but the intense public interest in the government of
great cities caused in 1901 a vote in New York City only
25,000 less than in 1900. In cities like Cleveland and
Chicago and Philadelphia and Detroit the vote on municipal
elections is now very heavy.
Whenever in really contested elections the abstentions are
numerous, the apparent wilful neglect of voters is often a will-
ingness to accept conditions as they are : if the vote at a
municipal election is half that at a presidential- election, it is
84 Suffrage and Elections. [§ 41
because people are willing to take their local government as it
comes ; by neglecting to vote, they practically admit that they
are reasonably satisfied. In some cases a small vote is really
intended to be a heavy and most elTective rebuke on a party
machine. Thus in 1882 the vote for governor in New York
was very small, because the voters of one party desired to
rebuke what they considered the forcing of a candidate by the
administration ; actually about 200,000 party voters refused to
come out, and thus they gave a majority of 192,000 to the
opposing candidate, who thereby won such eclat that two years
later he was nominated and elected president.
41. Reform of Electoral Methods.
From the preceding discussion it will be seen that our
electoral system is by no means perfect : we have some things
to learn from the experience of other countries, and much
from our own. First of all, we have no adequate system for
ascertaining and recording the qualifications of voters, because
of a painful lack of a proper system of registering births and
deaths. Thousands of young men vote before they are twenty-
one, because it is hard legally to establish their age ; thousands
of names of dead men are kept on voting lists because the
registry of deaths is not so accurate that it can be depended
upon for the purification of the lists. The second need is
thorough registration : Americans move freely from state to
state and from city to city, and hundreds of thousands of legal
voters are little known to their fellows. A few states absolutely
prohibit registration ; many states have not a sufficient system ;
and the practice of continuous registration is in some cases
used to cover fictitious voters. The third necessity is for a
proper method of voting, and this is the reform which has
most headway in the Union. The Australian ballot ought to be
extended to the remaining five states, for it requires intelli-
gence : the provisions of some of the state laws that an illiter-
ate voter may have his vote marked for him by a friend or
an official, is really the striking-off of a valuable educational
qualification.
§4i] Reform of Electoral Methods. 85
The English Corrupt Practices Prevention Act of 1883
strikes at one evil — the direct and indirect corruption of the
voter — by requiring every candidate for office to file a sworn
statement of the amount expended by him or in his behalf in
the election, whether he wins or loses. This plan is followed
in thirteen states.
In most states new legislation is necessary to protect the
count of votes ; the actual process should be conducted with
•more care and sobriety. Everywhere, as in the best states at
present, solicitation of votes in and about the polling-places
should be absolutely prohibited. Ballot-boxes should be so
constructed as to make' it impossible to tamper with them
before voting begins. The count of votes should everywhere
be made in the presence of a number of persons, should be
immediately announced, and should be subject to verification
and to recount. In many states more thorough legislation is
necessary to punish the offence of falsifying the vote.
The fate of republican government depends upon the ability
of the people to express their will without interference or
fraud. To stuff the registration lists with fictitious names, to
miscount the votes, to throw out legal votes on small techni-
calities, to accept ballots made up in defiance of the provisions
of the law, — these are betrayals of republican government in
the hands of its friends.
Behind all methods of voting, however, must stand an intel-
ligent public interest in elections. As will be seen in the next
chapter, one of the main reasons for apathy in elections,
especially on local questions, is the small influence of the
average voter in the nomination of candidates. Our present
remedies are outright bolting, voting for some men on the
other ticket, or simply scratching off objectionable men on
one's own ticket. The Australian ballot is a great step because
it gives opportunity for thoughtful voting ; but the thoughtful
voter must not only cast his ballot, he must make up his mind
tliat if necessary he will sacrifice time and convenience to see
that other people's ballots are properly cast and properly
counted.
CHAPTER V.
THE PARTY AND THE MACHINE.
42. References.
Bibliography: Channing, Hart, and Turner, Guide (1912), §§ 203,
249, 272; F. W. Dallinger, Nominations for Elective Office (1897), 221-
224; A. B. Hart, Manual (1908), §§ 103, 104, 206; W. B. Munro, Bibl.
of Muncipal Govt. (1915), §§ 7, 8. See also references to ch. iv. above.
Parties: J. A. Woodburn, Pol. Parties (1914); M. Ostrogorski,
Democracy and the Organization of Pol. Parties (1902); J. Macy, Party
Organization (1912); Cyclop, of Am. Govt. (1914), Arts, on Democratic
Party; Democratic- Republican Party; Federalist Party; Parties, State
and Local; Party (7 articles); Republican; Third; Whig; J. Bryce,
Am. Commonwealth (ed. 1910), H, chs. liii-lvi; H. J. Ford, Am. Politics
(1898), chs. vii, xxiii-xxv; C. MacCarthy, Anti-Masonic Party (1903);
P. O. Ray, Pol. Parties (1913), chs. i-iii, ix-xi; F. E. Haynes, Third
Party Movements (1916); J. D. Long, Republican Party (1888); A. N.
Holcombe, State Govt. (1916), ch. vii; W. M. Sloane, Party Govt. (1914);
A. L. Lowell, Public Opinion and Popular Govt. (1913), pt. ii. —
Sources: C. A. Beard, Readings in Am. Govt. (1909), chs. vi, vii; C. L.
Jones, Readings on Parties (1912), chs. i, ii, vii, ix.
Systems of Nomination: F. W. DalUnger, Nominations for Elec-
tive Office (1897); F. A. Cleveland, Organized Democracy (1913), chs.
xiv, XV, xvii, xviii; P. O. Ray, Pol. Parties (1913), chs. iv-viii; Cyclop, of
Am. Govt. (1914), Arts, on Campaigns, Pohtical; Caucus, Legislative,
for Nomination; Committees, Party; Convention, Political; Nominat-
ing Systems; Nomination of the President.
Boss-rule: F. J. Goodnow, Politics (1900), ch. viii; T. Roosevelt,
American Ideals (1897), No. 6; G. Myers, Tammany Hall (1917); R.
C. Brooks, Corruption (1910); A. M. Kales, Unpopular Govt. (1914);
Cyclop, of Am. Govt. (1914), Arts, on Boss; Corruption; Corrupt Prac-
tices; Tammany; J. Bryce, Am. Commonwealth (ed. 1910), II, chs.
Ivii, Ix-lxiv, Ixviii, Ixxiv, Ixxv, Lxxxviii, Ixxxix; P. O. Ray, Pol. Parties
(1913), ch. xvi; F. C. Howe, City the Hope of Democracy (1905), ch.
vii. — Sources: The Nation (weekly); C. A. BeaxA, Readings in Am.
Govt. (1909), ch. xxx; C. L. Jones, Readings on Parties (1912), ch. iii.
43. History of American Parties.
To carry on American government successfully requires a
continuous purpose on the part of the voters, either to change
86
§ 43] History of Parties. 87
the policy of the government, or to hold fast to what they have
acquired. The moment that two individuals habitually con-
sult together and act together on matters of government, we
have the nucleus of a political party ; and such association of
men of like minds is the necessary condition of popular gov-
ernment.
In England, distinct political parties began about the time
of the struggle between the Cavaliers and the Roundheads, in
the Stuart period. After the Revolution of 1688, the adherents
of the deposed Stuarts were called Tories, but until a few years
before the Revolution their rivals the Whigs practically con-
trolled the government. King George III in 1760 threw in
his lot with the Tories, and they were in power most of the
time till the end of the Revolutionary War.
In the colonies, parties sprang up as soon as representative
government was established ; but the main centre of political
difficulty was the governor's authority. The royal governors
were always in hot water with their people over questions of
taxation, of land system, of military defence, and so on ; and
the parties were in essence the governors' friends and the op-
position. There were no. general American parties until 1765,
when the friends and opponents of the Stamp Act became
sharply divided. At the beginning of the Revolution, in every
colony the patriot party was forcibly contested by the royalists,
commonly called Tories. In every colony the patriots got
possession of the state government, organized it, and framed a
new constitution ; and the Tories absolutely disappeared as a
political power.
The first development of national parties was the division
over the ratification of the constitution in 1787. Throughout
the country, the friends of the constitution organized as " Fed-
eralists " and stood together : the Antifederalist opponents of
the constitution kept up the fight as long as they could, but
within two years their party absolutely vanished. The gen-
eral elements of separation, however, were speedily crystallized
into two great recognized political parties, the Federalists
88 Party and Machine. [§43
and the Antifederalists. The Federalists included most of
the commercial and industrial interests, the ship-owners and
manufacturers ; and the general principle of the party was sub-
mission to intelligent leadership for the protection of property
and the maintenance of order. The Antifederalists, for a
time called Democrats, under Jefferson's guidance speedily
took the name of Republicans, and had for their basal principle
the rights of the individual and the maintenance of personal
liberty and independence.
The Federal party lost the presidency in 1801, and by
1822 died out in the states. The Republicans, now frequently
called Democratic Republicans, were in full control, took over
many of the former Federalist principles, and attracted many
old Federalists, especially John Quincy Adams. From about
1 81 6 to 1832 there were no distinct party issues ; men divided
on personal grounds, and on such issues as the anti-masoaic
agitation. This period, the earlier part of which has been
called the Era of Good Feeling, was really a period of bitter-
ness and rancor and legislative ineptitude. It was terminated
between 1829 and 1832 by Andrew Jackson, who hewed out
a new set of political principles : he extended the ideas of
Jefferson to cover opposition to a national bank, high tariff,
and national internal improvements. Gradually Jackson's
friends and supporters took the name of the Democratic
party ; Jackson's opponents concentrated and took the name
of the Whig party, and from. 1840 to 1852 those two parties
alternated in control of the presidency and of Congress.
Up to 1840, no third party had been long-lived ; but the op-
ponents of slavery founded the so-called '''Liberty" party, later
the Free Soil party, which hi. 1840 polled 7,000 votes ; in 1844,
about 60,000; in 1848, 300,000. In 1852, the Whig party
broke up on the question of slavery ; in 1856, the Anti-slavery
party all but elected its president; and in i860 that party
elected Abraham Lincoln president.
During and after the Civil War, the Republican party stood
at the same time for the vast interests of capital and. as the
§ 44] Party Organization. 89
great defender of human liberty. The Democratic party still
stood on its old ground for as little government as possible.
In 1884, a Democratic president was elected for the first time
since 1856. The various third parties which had been formed
just after the Civil War died out: the issue was distinctly
between the Republicans and the Democrats. There was
again an alternation: in 1880 a RepubHcan, Mr. Garfield;
in 1884, a Democrat, Mr. Cleveland; in 1888, a Republican,
Mr. Harrison; in 1892, a Democrat, Mr. Cleveland again;
in 1896 a Republican, Mr. McKinley ; and at this day the
two parties which have confronted each other ever since the
Civil War are still strong, vigorous, well organized, and con-
stantly opposing each other in the national, state, and local
governments.
44. Party Organization and Party Committees.
Parties do not conduct themselves, they require careful and
intelligent direction by individuals ; and those individuals, the
party managers, tend to take upon themselves all the party
functions, — designation of candidates, management of cam-
paigns, conduct of elections, statement of party principles, and
adoption of legislative policy.
Until recently a party was in the eyes of the law simply a
voluntary association of individuals, like a club or a church :
no political party is incorporated ; no party as such can make
contracts, incur debts, or enforce its rights by suit ; men join
a party by voting with it ; men retire from it by refusing to
vote with it. Nevertheless, this nominally free and open or-
ganization has become one of the most permanent, powerful,
and effective forces in the whole country.
How does a party maintain its hold upon its members ? To
a very large degree the sons of party men will vote their
fathers' ticket. Sometimes the " first voters " are an element
of uncertainty, especially when new questions come up. Par-
ties are not much strengthened by men's changing permanently
from other living organizations, although in 1862 many Demo-
90 Party and Machine. [§ 44
crats became Republicans and in 1872 and 1884 large numbers
of former Republicans became Democrats. Emigrants much
affect the complexion of parties, and there is a kind of race
choice: Irishmen prefer the Democratic party; Germans are
more likely to choose the. Republican party.
Nevertheless, there is always a class of voters who do not
count themselves as party men, and vote on one side or the
other according as the principles of each attract them ; and
in hot campaigns, Hke those of 1884 and 1896, thousands
of voters pass for the time from one column to the other.
Against such defection the party managers are always on the
watch, for a party, like an army, can accomplish its work
only by joint action of its members ; yet it is an army which
melts away without possibility of court martial, or sits in its
tents if it does not like the war. Hence successful party
managers must learn the temper of their followers, and must
placate them by promising popular measures and by nomi-
nating acceptable candidates. To the party manager, the
good man is he who always votes the straight party ticket :
it is thought contrary to party honor to strike off a single
name from the regular list of nominations ; a man who is
known even once to have voted for a candidate of the other
party, especially in a national election, is suspected, and even
though he comes back to the fold perhaps may never receive
a nomination.
In the management of parties, the main instrument is the
standing party committee. National parties have a committee
of one member from each state, the chairman of which is in a
position of enormous influence. The national committee men
are designated every year by the delegation of their states at
the national convention, but have the right to fill vacancies
and to select an executive committee which does most of the
work. The state committees have the power to fix the time
and place for the meeting of state conventions, and in many
cases prepare the work of those conventions in advance.
They even draw up and discuss platforms beforehand. Every
§ 45] l^arty (Jommittees. 9 1
city has a similar committee, positions on which are often hela
for many years.
Quiet men, little known in public life, serve on these com-
mittees, and make the prime decisions on political questions.
One of their functions is to raise and apportion funds for
campaign purposes ; they send out appeals to well-to-do mem-
bers of the party ; wherever they can, they also assess the office-
holders of the party ; but since the civil service act of 1883, this
practice is forbidden by law, so far as federal officials are con-
cerned. In many states they habitually require great corpora-
tions, especially traction companies, to pay large sums to the
party treasury, the consideration being a tacit understanding
that the party will be pleasant when the corporation wishes
favors. Some corporations subscribe to the campaign fund
of both parties, so that they may always have a friend at
court.
When the campaign is once under way, a sub-committee or
a separate campaign committee is appointed, which arranges
for political meetings, assigns speakers, and in general acts as
counsellor and protector for the local political organizations.
National committees now make much of the literary depart-
ment : in 1896 the republican committee had for weeks a large
building in Chicago, and sent out daily many tons of mail,
amounting to a total of several million pieces. Such docu-
ments may be translated and printed in a dozen different
languages.
45. The Caucus.
In small democratic communities like the New England
towns or the Southern counties, it is easy for a man who wants
to be elected to an office to make his desires known : to this
day notice is occasionally given in the public press that so and
so is a candidate for such an office. Then, in a town of ten
thousand inhabitants, all the intelligent people know all the
principal men of the place by name or on sight. When, how-
ever, we take a large community like a state or a municipality,
92 Party and Machine. [§ 45
it is likely that at a given election not one voter in twenty will
know personally more than one or two of the candidates for
whom he is voting ; and in a city ward with a population of
ten thousand, successful men of great worth may hardly be
known by name to their next-door neighbors. To make de-
mocracy work under such conditions, the voter must have some
principle of guidance in selecting his candidates ; and he de-
pends on the nomination, of a representative party candidate.
Party nominations are usually made by one of two organi-
zations, — ■ the primary convention, often called a caucus, and
the nominating delegate convention. The primary election is
intended to be a kind of town-meeting for the members of
the party within a limited territorial area ; it is supposed that
they know each other, and that they will recognize names sub-
mitted to them for local nominations. The primary also chooses
delegates to county or state conventions, and thus indirectly
to national conventions : if the friends of a statesman wish to
make him president, they must in the end secure support in
the primaries in thousands of places all over the country.
Hence it is apparent that to take part in some primary elec-
tion is the duty of every good citizen ; but in many states
membership in the caucus is given, not to all the voters of the
party, but to a select coterie who fill their own vacancies. This
was the case in New York City until a few years ago : the
other voters simply stood aside and had to accept what was
put before them.
The first difficulty in a cai^cus is to determine who shall
take part. In many cases caucuses are packed by voters of
the other party, who thus help nominate the candidates of their
rivals, and naturally are not eager that the best man shall be
nominated ; and there have been comical cases in which, in
the same city. Democrats have practically dictated Republican
nominations, and Republicans have controlled Democratic
caucuses. •
Many states, Massachusetts being the most prominent, have
enacted caucus laws, which provide that every member of a
§46] The Caucus. 93
party shall be allowed to attend his caucus ; which forbid any
one to attend who does not show that he is an adherent to the
party faith ; and which put the officers of the caucus under legal
responsibility to preside justly, to count the votes accurately,
and to give the minority a fair chance. The effect of such
laws is wider than appears upon the face, for they make the
caucus a part of the machinery of government : the state has
to take legislative notice of the fact that there are political
parties ; it assumes the responsibility of deciding who is really
a member of this or that political party, and which of two
rival organizations is " regular."
Within the caucuses there are practical difficulties, (i) They
are often noisy, disagreeable, and protracted. (2) In a very
large proportion of cases a " slate " is made up by men who
can control large bodies of votes (a " slate " is a list of persons
selected beforehand to be designated by the meeting). (3) All
public meetings must in the last resort depend upon the honesty
of the chairman, — if he says the ayes have it when the noes
really have it, the ayes win, and hence a corrupt chairman
may defeat the desires of a plain majority. (4) The caucus
appoints delegates to the county, city, district, or state conven-
tions : where the caucuses are honestly carried on, these del-
egates ought to represent the majority opinion within a party ;
but, if dishonestly managed, a small minority of the party voters
may succeed in sending to the convention enough delegates to
nominate their candidates. The public-spirited voter finds it
hard to influence caucus action.
46. The Nominating Convention.
The other machinery for selecting candidates is the nomi-
nating convention, which first appeared in 1 788 in Pennsylvania,
For many years it was an arena where the strength of rival
candidates was tested, and this is still the case in the national
convention ; but the local conventions, and even some state
conventions, are now in many cases simply a cut-and-dried
affair, to ratify a result reached beforehand by the party
94 Party and Machine. [§ 46
leaders. In the first place, a very common method is to " in-
struct " the delegates from the primaries as to the persons
they shall vote for : this means that, from the first, the conven-
tion is not a body of persons to deliberate and select the best
man, but a set of ambassadors from the localities. Usually the
conventions are large ; in Massachusetts as- many as 2,200
delegates are elected every year to each of the party state
conventions. Before assembling, the party committee pre-
pares a list of officers of the convention, including a man
designated for the permanent president ; and as soon as elected
he makes a speech setting forth the party principles.
The difficulty that most often disturbs the state convention
is the appearance of rival delegations, each claiming to be the
rightful representative of the voters of a particular district. A
committee on credentials is appointed to consider such cases,
and makes a report ; sometimes the nomination depends upon
the seating or the unseating of a particular delegation. The
natural tendency of the party leaders is to accept the delega-
tion which is "regular," which represents "the organization,"
— that is, which has the support of the men who have been
accustomed to take charge of party matters in the district from
which the delegation comes and are in relation with the state
committee. A method very frequently followed is to admit
both delegations, each casting half the vote from the district.
Sometimes local and even state conventions get into an up-
roar. In September, 1896, on the day before a Massachusetts
convention, a number of delegates and cont-esting delegates
held a meeting in the hall where the convention was to occur,
and resolved to occupy the room till the convention assembled
the next day. When the time came for the convention, there-
fore, about 500 delegates were already in their seats; the
remaining delegates were crowded outside, and the police
declined to open the doors, so that the members in the hall
proceeded to organize a convention and to nominate a candi-
date. Meanwhile the state committee had called the rest of the
convention in another hall, where they duly organized and
§ 47] Nominating Conventions. 95
made their nomination for governor. Tlie result was two cer-
tificates of nominations sent to the state government ; and an
ofificial election commission was obliged to decide which con-
vention had the regular party nomination.
The state conventions not only nominate state officers, but
also designate members of the state committee, and often dele-
gates to the national convention ; and in addition they adopt a
platform of party principles. These state platforms are usually
not much regarded except in times of political unrest, when
the attitude of a state convention may presage the attitude of
the voters of the state on questions of public policy. Wher-
ever the party convention has degenerated into a cut-and-
dried preconcert of a few party managers who make up a
ticket, such a convention is simply a mask for a personal and
despotic system of nominations, and might well be omitted
altogether.
47. National Conventions.
The enthusiast who loves a fight is still gratified by the
national party convention, which is subject to interesting
waves of excitement, and the result of which is as yet uncon-
trolled by any previous arrangement. The original method of
designating candidates for national office was by a caucus of
the party members of Congress at the seat of government.
Such caucuses designated the party candidates in 1796 and
1800 ; and down to 1820 the caucus nominations were usually
taken up by the country : the difficulty was that a district rep-
resented by Federalists had no representation in the Republi-
can caucus ; and there was a general feeling that the work of
the caucus was selfish and partisan. It broke down in 1824.
The next method of presidential nomination was by state
legislatures, of which a conspicuous example was the setting up
of Jackson by the legislature of Tennessee in 1822, and again
in 1825 after his first defeat. This system was obviously
clumsy, and did not represent the whole country. Hence it
was superseded by a national delegate convention, made pos-
sible by the improvements in transportation, by steamers, and
96 Party and Machine. [§ 47
later by railroads: 1840 is the first year in which both the
two great parties had regular conventions, nominated candi-
dates, and drew up platforms. From that time on, conven-
tions have regularly been held by the two great parties, and
frequently by third parties.
Until i860 the national conventions were held in small halls,
sometimes in small cities ; the Chicago (Republican) conven-
tion of i860 was the first to be held in a great auditorium,
intended to give ten thousand people a chance to see the per-
formance. The conventions are now always held in a large
city, and last several days. The result of the hippodrome
system is of course that members of conventions consciously
or unconsciously talk and vote with a view to the galleries,
and the galleries do all they can. to affect the minds of the
delegates. The usual membership is two for each congres-
sional district, four at large from each state, and six from each
territory, making a total of 994. It is customary to appoint a
large number of "alternates," who have the right of attending,
and for whom seats must be found ; and the press is amply
accommodated. The organization of the national convention
is like that of state conventions : the meeting is called to
order by a temporary chairman designated by the national
committee, who makes a speech ; a permanent chairman is
then elected, and a committee on credentials is appointed ;
in case of serious contests no work can be done till that
committee reports.
A large number of delegates always come from states which
cannot possiby cast any electoral votes for the candidate of
the convention and are little controlled by public opinion ;
delegates from such states sometimes run out of money if the
convention is prolonged, and their expenses are paid for them
by the friend of some candidate. With all these drawbacks,
the national conventions are a reasonable reflex of the public
sentiment of the parties. The platform is sometimes drawn
up before the nominations, especially if it is desired to lay
down a principle which shall bind some particular candidate ;
§ 47] National Conventions. 97
wherever there is a great dissension in the party, it is hkely to
be expressed in the debate on the platform.
The making of the platform requires the greatest skill if
there is a division of opinion within the party. The Demo-
cratic party has a habit of reiterating its platforms of previous
years, with additions ; other parties usually make up an entirely
new document. In 1896 the drafting of a gold plank in the
platform of the Republican convention at St. Louis was so
important that three or four men have contended for the
honor of having framed it. A frequent form of statement on
serious questions is the so-called "straddle," — that is, a
declaration which means anything to anybody. Nevertheless,
the party platform is accepted throughout the country as a
statement of the principles and intentions of the party, and
great use is made of it in the campaign.
In a large convention, only a few persons who have been
designated beforehand can be allowed to speak on any ques-
tion. At Chicago in 1896, Mr. Bryan, who had already been
selected by a large fraction of the Democratic party as their
candidate, came forward and made a speech which at once
stamped him as a leader and greatly aided him to get the
nomination.
When the organization is complete and the question of con-
testing delegations settled, and the platform is out of the way,
the next thing is the nomination of the candidates. The dif-
ferent aspirants for the suffrages of the convention are put
forward in elaborate speeches by their friends, speeches which
sometimes unexpectedly furnish a war-cry ; as in the case
where an orator declared that " we love our candidate for the
enemies he has made " ; or another who put in nomination
" gifted, gallant, glorious Blaine," " plumed knight," " our
Henry of Navarre." Ever since i860 it has been the habit of
the spectators to express their sentiment by uproarious applause,
when the name of the person brought before the convention is
first mentioned: thus, in 1884, the mention of the name of
Mr. Blaine brought out twenty minutes of continuous applause,
7
98 Party and Machine. [§ 48
wave after wave. The effect of this participation by the gal-
leries is doubtful ; it probably makes no more impression on
the nerves of the party managers than the cries of the specta-
tors on an experienced base-ball player.
After the nomination the candidate is notified by a com-
mittee, and makes a speech or writes a brief letter ; later on
there is sometimes a mass- meeting, at which he makes a
longer speech ; and he eventually writes a careful letter of ac-
ceptance, in which he states his principles and expounds the
party platform.
Although it is quite possible in state conventions to nomi-
nate men who are unknown to a large majority of the delegates,
the national conventions almost universally designate men of
reputation and character. People have such a sense of the
importance of the office of president, that, although weak men
have sometimes been nominated and even elected, no man has
ever been successful in a presidential election who has not had
a previous experience of public life and who was not well
known in some parts of the country. Even Franklin Pierce
had been in Congress and had served in the Mexican War.
48. The Machine and the Boss.
Those persons, often very few in number, who control the
regular routine of party action, take upon themselves the name
of " the organization " ; by their opponents, within or without
their party, they are habitually called " the machine." There
is nothing vicious in party organization, there is nothing strange
or immoral in intelligent acceptance of the management of a
few persons ; every one is aware that charitable and social
organizations of all kinds are set in motion by a few minds.
"The organization" must undertake the detail of the neces-
sary and perfectly legitimate work of keeping track of the
voters of the party, notifying them of caucuses and elections,
sending out campaign literature, providing halls and speakers
for campaigns. The organization becomes dangerous when it
passes beyond initiative and suggestion and routine work, and
§48] The Machine. 99
assumes the sole right to select persons for party nomination ;
or when, by preventing a fair expression of the will of the
party voters, it forces unfit candidates upon the ticket j or
when, going to the furthest extreme, it arranges with the worst
elements in the other party for a division of the public employ-
ments and public contracts for private benefit. " The politi-
cal machine," like every other machine, works good or bad
results according to the will of the operator.
Throughout the United States, in the cities, towns, villages,
and rural communities will be found conclaves of politicians
who are recognized, often for years together, as the men to be
consulted by the party chieftains ; and wherever politics are
too highly organized, especially in the cities, these subordinates
become the agents for the exercise of arbitrary party manage-
ment. The most honest and straightforward political leaders,
conducting elections with perfect fairness, must nevertheless
depend for their political success upon voters ; and unless they
carry elections, at least occasionally, their party has very little
function or significance. Hence for the support of the organi-
zation it is necessary that the voters be known and be brought
to their duty; and the subordinates, who frequently occupy
small offices, are expected to " hold the vote." In most coun-
try districts, they simply keep the men of their party up to
the mark ; but in cities of-every size, and particularly the larg-
est, such leaders gradually accumulate a following which will
vote any ticket at the orders of the chieftain. Thus is estab-
lished in American politics something very like the old feudal
system in European government : the local man, often called
a " heeler," has his body of adherents, whom he holds in ser-
vice at the call of his superior ; that superior in turn must hold
his collection of votes at the service of the chieftain ; in pri-
maries and conventions also the heeler and the district leader
often absolutely control large blocks of votes. Hence, in order
to get a nomination, the candidate must somehow secure the
support of the party chieftains.
So far the political voter may still be loyal to his great party
I oo Party and Machine. [§ 48
leaders, just as the vassal of a lord was nominally the subject
of his king ; but in very highly-organized political parties,
the stock voter will accept the orders of his suzerain to vote
against his party. This makes possible the political " deal,"
which means that the heads of rival parties agree each to sup-
port some of the candidates of the other's ticket, thus rendering
the election of the least desirable men almost a certainty. Re-
publican government disappears when the vote can be trans-
ferred as a chattel from one voting camp into another.
How does the machine keep its hold upon the voters, many
of whom are only dimly conscious of its terrible power?
Partly by punishments, especially by the marking for exclusion
from all future office and advantages of any man who shows
too much independence ; much more by positive benefits. It
must not be supposed that even in the most corrupt city gov-
ernments the majority of the voters are simply tools. They arie
kept to their party adherence by a conviction that adherence
brings them something worth having : first of all and most im-
portant, the chance of being elected or appointed to an office
carrying with it dignity, power, and salary; in the second
place, aid and protection in business, lawful or unlawful ; in
the third place, positive and unceasing relief to the wants of
poor people. Thousands are the tons of coal and the barrels
of flour furnished to the poor and suffering by political leaders,
who often feel a genuine friendship and interest in their people ;
and it is not in human nature for the recipients of such favors
to vote against their benefactor.
The inevitable tendency of a highly-organized machine is
to bring each organization into the control of a single man,
who is popularly called " the boss." Again, the principle of
the political leadership of a man of power is not harmful :
it is as old as poptilar government ; it everywhere appears
in the midst of free institutions. In one sense, Chatham
was a boss, and Gladstone and Thomas Jefferson and Andrew
Jackson and Abraham Lincoln ; that is, these were all men
who towered above their fellows^ had very positive views as
§ 48] The Boss. loi
to a political policy, and laid down principles which other.men
accepted under their guidance. They were also men who ac-
cepted the highest political responsibilities, who wrote or spoke
in defence of their principles, who led men, not because they
could combine votes, but because they had high aims.
The " boss," in the common acceptation of the term, is a
man who concerns himself little with policies, and much with
the bringing together of a majority which will enable him to
keep his friends in office. The boss is sometimes a high
officer in the government, either state or national ; quite as
often he is a private individual who makes but does not take
political office. Some bosses have been religious men,, some
have been unconvicted murderers ; that makes little difference
to their success, because the boss is powerful, not through his
private character, but through his masterly capacity of keeping
up that combination of private interests which constitutes the
machine. Bosses increase, simply because experience shows
that one leader acting through a strong organization is more
likely to win elections than a conclave or oligarchy of similar
leaders.
The boss is usually a man who has a vast number of friends,
some of them won by admiration of his qualities, some of them
attracted by all sorts of advantages thrown in their way
through the great man's influence : a struggling young lawyer
gets a case from an intimate friend of the boss and the promise
of more business ; the enterprising young business man finds
that the boss will endorse for him at the bank ; the promising
young editor gets public printing. These are not all acts of
bribery ; they may be simply methods by which the political
leader marshals his followers. If the boss had an immense
fortune which he was expending in these benevolent ways, he
would not be so much criticised : the wrong is that so far as
his acts cost money, they eventually come out of the public
treasury, directly or indirectly. Some bosses are perfectly
content to make no financial profit out of their enterprise;
others accumulate fortunes: in either case, the harm done to
I02 Party and Machine. [§48
the public is the same ; for the corrupt boss enjoys the sense
of power, not that he may increase the happiness and welfare
of his countrymen, but that he and his friends may retain
the power of spending public money in part for private ends.
The most successful bosses raise the necessary funds for theii-
operations by assessments upon large corporations ; but in the
end these corporations recoup themselves by withholding ser-
vice to which the public is entitled, or by securing privileges
which otherwise they could not have. The great objection to
the boss is that he makes out of politics, which is a means
of serving public interest, a private and almost a commercial
enterprise ; and that thereby he is demoralizing the public
service. Well-to-do people can always protect themselves
from any serious harm arising from boss government. It is
the poor people, the friendless people, who lose most and
suffer most from his sordid rule.
Where there is a boss, the feudal system in politics is com-
plete : he stands as sovereign ; the district leaders, the heelers,
and the voters all in succession owe him allegiance ; he makes
his power effective by his almost absolute control over the can-
didates to be nominated by his party. Hence the ablest and
most respectable men frequently make terms of some kind
with the boss. In the worst instances, they buy their nomina-
tions by large contributions to the " campaign fund " ; in other
calses, they accept nomination with the tacit understanding that
if elected they will deal paternally with the supporters of the
boss. Through his control of nominations to the state legisla-
ture, the boss in many ways dictates legislation : if his party
has the majority, a measure that he endorses is perforce ac-
cepted by his men in the legislature ; a measure that he opposes
is remorselessly cut out. This leads, in the blackest cases, to
an habitual dicker between the boss and corporations which
desire legislation : he agrees that in consideration of money
duly paid to him, or for advantages to his friends through the
corporation, he will deliver the legislation desired by such cor-
porations. When public franchises valued at many millions
§48] The Boss. 103
are given away by legislatures or city councils, they are given
for some kind ' of consideration, either political support or
actual money.
This is the lowest type of so-called " popular government " :
a legislature in which the majority of members owe their nomi-
nation to an organization in which one man rules ; a governor
often springing from the same source ; other officers owing
their appointment to the same influence. When such a situa-
tion prevails, it constitutes nothing in the world but a tyranny
under the forms of free government. Such tyrannies would
inevitably lead to political revolution and civil war in the
United States, as they have in all other countries and in all
ages of the world, but for two reasons. First, the boss must
after all satisfy his followers that he can win, and in order to
keep them in line he must nominate some candidates that he
does not like and accept some unpalatable policies ; like the
czar of Russia, the boss of an American city has to take some
account of public sentiment. In the second place, sooner or
later American freemen get tired of personal government, and
get up some sort of combination of the better elements in all
parties to deprive the boss of his majority ; whereupon he be-
comes helpless. In this last condition, the boss usually fights
by falsifying election returns ; and the only remedy in such a
case is for respectable members of the boss's party e?i masse
to desert him and vote for any promising candidate who can
be elected against him.
In this sketch no reflection upon the ordinary American
voter or the ordinary American public man is intended.
American popular government is in principle a government of
the majority for the benefit of the public. When hundreds
of thousands of voters obey without demur a single will, it
results in the establishment of a camorra, — a political state
within a state, a part of the citizens organized for the purpose
of securing privileges from the government from which their
fellow-citizens are excluded ; and in many cases it is simply
the rule of an organized, determined, and unscrupulous minority
over a stupid majority.
I04 Party and Machine. [§49
49. Influencing Voters.
In most elections, from year to year, the majority of the
men who go to the polls will vote the " straight ticket " of
their regular parly ; the number of voters who can in any way
be brought to change their habitual vote is rarely more than
one fifth of the whole. In the election in New York City in
1901, if one voter in thirty-six had voted the other way, there
would not have been a change in administration.
(i) The most ordinary influence on voters is simple persua-
sion. In some parts of the country, especially in the South, there
is joint discussion of public issues, listened to by both sides. In
the Northern states, political meetings are usually attended only
by members of the party that holds them, who have not come
to have their opinions changed, but to have them confirmed.
(2) The newspaper is of course of great influence over voters.
Newspapers frequently take new ground, and sometimes in a
hot campaign change over from one side to the other ; but,
again, most Americans read only the newspapers of their own
party, and hear very little of the argument of the other side.
Hence the importance of special campaign literature; for in-
stance, in 1896, the Republican National Committee deluged
the state of Iowa with specially-prepared political tracts, mailed
to individual voters whom they supposed to be making up their
minds on the question of the gold standard.
(3) Another method of influencing voters is by intimida-
tion, — sometimes nothing more than the disapproval of a man
who votes unlike his neighbors, sometimes fierce and cruel per-
sonal abuse, sometimes threat of dismissal from employment.
The Australian ballot has been favored by labor organizations
because it enables the workman to escape from this form of
oppression, since it is almost impossible to find out how a
man has voted unless he himself discloses it.
(4) Farther down still is the brutal violence at the polls, of
which there have been many examples in American history.
The usual form is for friends of one party to drive away the
§49] Influencing Voters. 105
watchers of the other party, or to threaten voters when they
oifer their ballots. With the introduction of metropolitan
police, since i860, this violence has become less common in
large cities ; and the Australian ballot laws, which in many
cases forbid the assemblage of persons about the polls, take
away the pretext of violence. However, since the Civil War
there have been some cases of voters driven en masse frohi
the polls by bodies of armed men. Such practices are the
destruction of free government ; for if A and B stand together
to drive from the polls their brethren C and D, who are
equally legal voters, the time may come when the A's will
unite to keep their brother B's from the suffrage. If poHcies
cannot be changed by orderly votes, government ceases to be
republican and becomes military; and military government
tends to despotism.
(5) Another too frequent method is the corruption of voters.
Bribery is as old as votes, — very frequent in the Greek and
Roman republics; for half a century, from 1725 to 1775, the
recognized method of getting a government majority in the
House of Commons ; frequently practised in the colonies ;
and to this day one of the most widespread and demoralizing
influences. The most subtle form of bribery is to pay a man
on election day for peddling tickets, for getting out the voters, -
or for reporting the vote. Another form is the purchase of
" political movements " : temporary third parties are set up
for the express purpose of being bought off in a block.
Another method is to hire men to stay away from the polls,
one of the most dangerous of all forms of bribery because it
cannot be detected by any ballot device.
(6) Perhaps the baldest form is to pay money outright for
votes : candidates for offices are often assessed thousands of
dollars for campaign funds ; and cases have been known where
they have gone from polling-place to polling-place, actually
giving out rolls of bills to be distributed among the voters.
The indiscreet written advice of a political leader in 1888, to
secure the " floaters in blocks of five," was an unblushing ad-
io6 Party and Machine. [§50
mission of the worst form of bribery, — the gathering up of
tramps and loose characters, corralled in warehouses like
cattle, let out in gangs of iive with a watcher to deposit their
votes before their money is paid. This is a shameful spectacle ;
and although in most communities only a small proportion of
the voters will sell their birthright, yet that small proportion
may be just enough to turn the scale.
It is needless to say that the bribed voter is no voter, that
he is simply a pawn in the hands of a man or the organization
that pays him. In most states there are strict laws against
either giving or receiving bribes ; but bribery is an offence
extremely difficult to prove, because neither party desires that
the transaction be made public. There have been cases in
which, on the day of an election, the party heelers on both
sides have agreed to divide their campaign funds, and let the
floaters cast their ballots uninfluenced. Such conduct is
of course held dishonorable by those sensitive people who
furnished the money.
50. Relations of National and Local Politics.
One of the reasons for the extraordinary hold of the ma-
chine and the boss is the close relation between national
and state politics. National issues are large, and attract the
attention of the whole country : the tariff, currency, foreign
relations, the army, the navy, interstate commerce, — these
are subjects in which most intelligent persons are interested ;
and the play of parties in Washington is on a grand scale.
Although during the years from 1876 to 1896 the two great
parties had no strongly contrasted policies, there was always
a sharp division on minor questions. Party organs throughout
the country naturally dwell upon these differences. Most men
attach themselves to a party, and are interested in seeing it
succeed, because such success means the advancement of a
preferred policy, or at any rate the success of friends.
In the states, however, the questions are local : whether
there shall or shall not be heavy taxes on personal property,
§ 5o] National and Local Politics. 107
whether railroads shall or shall not be allowed to consolidate,
whether prisons and asylums shall or shall not be placed
under the control of a single executive board, — these are
plainly questions not in any way dependent upon national
policy ; and hence upon the face of it there is no reason why
there should not be in every state two or more parties dividing
on strictly state issues. Such parties existed in the colonies
and in the early states. State questions arise and have to be
settled ; there must be a division of opinion, but in practice,
in every state in the Union, the parties correspond to the
national parties ; and in elections people are concerned, not
in choosing railroadites or anti-railroadites, not in choosing
men who will vote for or against the sale of liquor on Sunday,
but in choosing members of the Republican or Democratic or
Prohibition party.
The reason for this habit is plain : in order to carry national
elections, the voters must be known, recorded by party man-
agers, organized, and kept informed. Parties work in season
and out to keep the voters from scattering and subdividing
on state issues. Furthermore, those who are most successful
in state pohtics pass into the arena of national politics : for
instance, the governor aspires to become a senator of the
United States, and must prove his claims by service, not only
to the public, but to the party whose suffrages he desires.
The same principle gets into city politics, where the relation
with national affairs is even more remote. In cities the main
issues are those of public works of various kinds, — streets,
pubhc libraries, gas works, bridges, wharves, schools ; and
there can be no Republican pavements, or Democratic bridges,
or Prohibition schools. Yet in almost all cities the permanent
political combinations are based on the national political or-
ganizations : a man who wants to be mayor seldom is elected
because he favors the things that the people want, but because
he is accepted by the Republican or the Democratic organiza-
tion as a good man ; and in local elections effort is made to
choose, not so much men who will vote in accordance with
io8 Party and Machine. [§ 5°
public good, but men who will atct together for the ultimate
good of their national party ; and it is in the cities that the
machine and the boss have their largest work, precisely
because the number of voters can be handled within very
narrow territorial limits. The cities have also large numbers
of pubHc serrants whose patronage is one of the most effective
supports of the boss. It is quite conceivable that a boss might
arise in a city on local issues, if they could be kept going long
enough for him to perfect his organization ; but every power-
ful boss aspires to control his state as well as his city, and for
both he uses a perfected party organization.
The evils of this connection have perhaps been exaggerated ;
as a matter of fact, on a very large number of the measures
brought before state legislatures, the members either exercise
their discretion or vote as they are directed by their backers,
without reference to parties. The harm is not that the states
and cities try to conform their policy to that of the nation,
but that the members of the state and local governments are
nearly all nominated by party agencies ; and wherever the
power of nomination has fallen into the hands of combinations
and bosses, officials are not selected for their likelihood of
public service, and hence do not command public confidence.
In most cases, the voter must accept one or other of the
candidates placed before him by the organizations.
To meet this difficulty, various forms of non-partisan or
citizens' movements have been devised. None of them have
ever made much headway in state governments : the main
check on excess of party spirit is that people who are suffi-
ciently discontented with the conditions of the government
unite with the opposition party .in good common nominations.
This is a process which the boss is always afraid of, and which
he will often prevent by making concessions. In some cities
for many years together there have been citizens' or people's
tickets irrespective of parties, and usually successful. A
notable example is the city of Cambridge, Massachusetts, in
which for twenty-five years, from 1876 to 1900, no man was
§ 5i] Reform of Party Methods. 109
elected mayor on a party ticket. The more common method
is a form of citizens' temporary ticket, combining the dis-
satisfied elements in all parties for an exigency; such a
combination carried the city of New York in 1901.
51. Reform of Party Methods.
So far in our history, there has never been a political evil for
which alleviation and relief could not be found. The remedy
for the party which has lost its conscience and continues with-
out any purpose is to found a party upon vital issues. Thus
the Whig party disappeared from 1852 to i860, and the
Republican party took its place. The remedy for the con-
ditions of the nomination system is not so easily brought about.
The statutes so far passed for regulation of primaries by law
have always proved inadequate, partly because of the inge-
nuity of politicians to find legal ways to get round the intent
of the laws ; and, further, because in such a system some
state authority in the last resort must decide which party or
which caucus is regular and therefore legal, and thus the state
assumes the final decision in the internal affairs of a political
organization.
A remedy for over-organization is the so-called " Crawford
County," or direct nomination, plan. Some weeks before
election day, polls are open for the members of each party,
and they express their preference for candidates of their own
party. This system has been adopted in Minnesota ; attempts
have been made to introduce it into Wisconsin ; and as an
optional measure, or one appHed to special locahties, it is in
use in Pennsylvania, Ohio, Mississippi, Oregon, and other
states. Of course it requires careful legislation to prevent the
voters of the other party from coming in and directing the
nominations of their opponents ; the advantage is that it takes
nominations out of the hands of "the organization."
In this system of popular nomination the real difficulty is,
however, only shoved back ; because in the end that man is
iio Party and Machine. [§51
most likely to get a majority on a nominating ballot, who is
known to have a great many friends ; or, what comes to the
same thing, has the support of men who control large numbers
of votes. It is doubtful, therefore, whether the result will not
simply be the pre-designation of men as the favorites of the
organization. Still, the system does put an immediate and
wholesome check upon the designation of obviously unfit or
unpopular men ; and if a man is really popular in his party, but
has not the favor of the magnates, he may still secure a nom-
inating majority.
This method is intended to supplement not only the caucus
but the convention, especially the cut-and-dried convention ;
but in making up a convention ticket an effort is always made
to secure representatives from various wings and geographical
sections of the party, and from various elements of society ;
therefore it is doubtful whether a ticket indicated by the
nominating-election system would poll as many votes in a
state as one selected in the usual way; and in close states
voters will always be dissatisfied if they steadily lose elections.
Nor is this method of much avail for independent or third-
party candidates, since only regular adherents to a party can
be permitted to take part in the preliminary election of their
party. In city politics, the most effective elective reform is
brought about by citizens' organizations. Societies are often
effective in following up and exposing neglect or corruption
among public officials ; such are the Watch and Ward Societies,
the various civic leagues and municipal leagues, most of which
take no direct part in nominating candidates.
Citizens' organizations for making nominations are effective
just so far as they imitate other political parties by themselves
forming permanent organizations. In the city of Cambridge,
for instance, there has been for thirteen years an association
called Library Hall, which elects its own members. Its function
has been to consider the nominations by other people, and to
select out of all the names thus brought before it the candi-
§ 50 Reform of Party Methods. 1 1 1
dates it thinks most worthy of public support. The association
thus avoids the charge commonly made against such organiza-
tions, that it simply wants to substitute its own men for some-
body else's men. Library Hall also publishes a useful account
of the attention to public business by the members of the city
legislature, such as the number of meetings attended, and
votes upon interesting public questions ; that is, it attempts to
place at the service of the voter a careful brief account of each
candidate, of his qualifications for the work, and of his public
service if he has previously been in office.
Another method of reform is by taking advantage of public
dissatisfaction on local issues, to work out an organization
which may compete in making up a ticket. Such a movement
must have a committee and campaign fund ; it must employ
men to canvass the voters and to keep watch upon them at
the polls ; it must provide speakers and places for them to
speak. In the local campaigns in New York in 1897 and 190 1
such an organization initiated the method of speaking from
wagons, which can be drawn from place to place, requiring
no expense for halls, and bringing political discussion home
to the voter.
There is, however, but one ultimate relief from extreme
party organization, and that is for a sufficient number of party
voters to rebel when they think their organization is going
against the public interest. This involves frequently a great
sacrifice ; for a man having a genuine and rightful ambition to
serve his fellows in public life knows that, if he breaks with
"the organization," he is likely to be marked for life. Yet
there is nothing so much admired by the American people
as political courage ; if the old organization is destroyed, this
power to boycott a man disappears, and there have been plenty
of cases where by sheer force of character, by personal popu-
larity, by representing a great principle, men have compelled
unwilling organizations to accept them as candidates, and to
throw influence in favor of their election. In all cases a good
112 Party and Machine. [§ 51
citizen may recall the organization to its purpose by voting for
the opposition candidate in whom he has more confidence ; or,
if he cannot make up his mind to forsake his lifelong party,
by simply staying at home in sufficient numbers, he may
administer such a rebuke as will never be forgotten.
Part III. .
State Governments in Action.
CHAPTER VT.
THE STATES AND THE UNION.
52. References.
Bibliography: Channing, Hart, and Turner, Guide (1912), §§ 158,
159, 174, 17s, 178, 184, 195, 203, 206, 231, 241; Macy and Ganna-
way. Comparative Free Govt. (1915), 719, 720 (cases); A. N. Holcombe,
State Govt. (1916), 482, 483, 486; A. B. Hart, Manual (1908), §§ 105,
106, 149, 156, 160, 289.
Colonial Precedents: H. L. Osgood, Am. Colonies in the Seven-
teenth Century (1904-1907); J. Schouler, Constitutional Studies (1897),
pt. i; J. Story, Commentaries (1873, 1891), §§ 159-178; G. T. Curtis,
Constitutional History (1889-1896), I, chs. i-iv; L. G. Tyler, England
in America (1904), chs. v, xii, xv, xviii; F. 'A. Cleveland, Organized
Democracy (1913), chs. i-vi; C. M. Andrews, Colonial Self-government
(1904), chs. ii-xi; E. B. Greene, Provincial America (1905), chs. i-v.
— Sources: A. B. Hart, Contemporaries (1897-1901), H, §§45-74;
A. B. Hart, Source Book (1899), §§ 48-51; C. A. Beard, Readings in
Am. Govt. (1909), chs. i-v; A. Johnson, Readings in Am. Constitutional
Hist. (191 2), pt. i.
Principles of State Government: S. E. Baldwin, Modern
Political Institutions (1898), chs. iii, iv, xi; J. Bryce, American Common-
wealth (ed. 1910), I, chs. xxxvi-xlvi, App. p. 718; J. A. Woodburn,
Am. Republic (1916), ch. vii; T. M. Cooley, Constitutional Lifnitations
(7th ed., 1903); T. M. Coole}^, Constitutional Law (1898), chs. x, xi;
A. N. Holcombe, State Govt. (1916), chs. ii-v, x-iv; Cyclop, of Am. Govt.
(1914), Art. on State Governments, Characteristics of; H. Hitchcock,
American State Constitutions (1887); F. J. Goodnow, Administrative
Law (1905), 154-160.
Federal Relations: E. McClain, Constitutional Law (1910).
§§ 173-176; W. W. Willoughby, Constitutional System (1904), chs.
iv-x; B. A. Hinsdale, Am. Govt. (4th ed., 1917), chs. xl-xlii, xlix; D. F.
8 113
114 States and Union. [§ 53
Houston, Nullification in South Carolina (1896); W. Wilson, Consti-
tutional Govt. (1908), ch. vii; A. N. Holcombe, State Govt. (1916), ch. i;
J. Bryce, Am. Commonwealth (ed. 1910), I, chs. ii, xxviii, xxxvi, xliv-
xlvi; J. R. Tucker, Constitution (1899), I, chs. v, vii; II, ch. xiv; J. F.
Rhodes, United States (1892-1906), V, ch. xxx; VI, ch. xxxi; E. P.
Oberholtzer, United States (191 7-), I, chs. iii, vii; W. A. Dunning,
Reconstruction (1907), chs. i-vii, xi, xvi; Cyclop, of Am. Govt. (1914),
Arts, on Centralization, Growth of, in U. S.; Confederation, 1781-
1789; Federal State; Interstate Law and Relations;' NuUification
Controversy; Reconstruction; Secession Controversy; Sectionalism
in the U. S.; State Governments during the Revolution; State Rights;
State Sovereignty; States, Admission of; States in the Union; U. S.
as a Federal State; Virginia and Kentucky Resolutions; W. W. Wil-
loughby, Constitutional Law (1910), I, chs. iv, x-xv, xxi; II, ch. xlvii.
— Sources: C. A. Beard, Readings in Am. Govt. (1909), ch. viii; P. S.
Reinsch, Readings on Am. Federal Govt. (1909), ch. xv; A. Johnson,
Readings in Am. Constitutional Hist. (1912), pts. iv, v, ix.
53. Variety and Unity of State Organization.
Historically and practically the states are the foundation of
government within the United States. President Lincoln truly
said in 186 1 : " The states have their status in the Union, and
they have no other legal status," yet state organization pre-
ceded national organization, and to this day underlies it. If
all the states of the Union should cease to work, the national
government would not, under the constitution, control a suffi-
cient part of the domain of government to maintain itself.
The cardinal principle of the present Union is that, except in
matters distinctly regulated by the federal constitution, each
state is free to govern itself. Hence great variety in the form
and the functions of the state governments : for instance, the
Massachusetts legislature sits nearly six months out of every year,
and every one of the fifteen hundred bills introduced receives
some kind of consideration ; the California legislature loses its
salary if it sits more than sixty days; while the Alabama
legislature meets only once in four years ; judges in Montana
are elected for terms of six years ; judges in New Hampshire
are appointed for hfe ; by the laws of New Jersey a money-
lender cannot collect more than 6 per cent interest ; the laws
of Idaho allow 1 2 per cent.
§ 53l State Organization. i 1 5
Such differences are not all accidental ; some of them go
back for centuries : of the present forty-five states eighteen
formed parts of English colonies before the Revolution, and
show distinct traces of colonial tradition in their governments ;
another group of states, from Louisiana to California, bears the
impress of former Spanish and French law. Other commu-
nities, such as Arkansas and Michigan, have been founded by
those setders who first came in and brought with them famihar
law from the old states.
Local conditions also account for and require a great variety
of legislation : lumber states, like Maine or Wisconsin or Wash-
ington, have special laws governing forests ; stock-raising states,
like Colorado and Texas, legislate on wire fences and branding
cattle ; states with large areas of waterless lands, like Nebraska
and Utah, provide for irrigation ; communities like New Jersey,
with hundreds of thousands of foreign immigrants engaged in
manufactures, need different legislation from a community like
Vermont, with a rural American population.
On the other hand, throughout the Union the state govern-
ments are very much ahke, and legislation rests more on a com-
mon basis than appears on the surface. All the governments
have three departments, each intended to act independently of
the other two. In all, the legislature, of two houses, is the
repository of governing power not otherwise granted or ex-
pressly withheld ; its legislative work is supplemented by the
traditions of English common law. Most of the states elect
the chief financial and other administrative and executive offi-
cers. All have a series of courts, culminating in a single
supreme court. In every state large areas of public power
are transferred by the legislatures to cities and localities.
The legislation of the states is freely borrowed one from
another ; and the courts quote and follow decisions of their
neighbors. Nevertheless, great confusion comes from the
variety of criminal and civil legislation : for instance, marriage
and divorce laws are such that a man may have two legal wives,
J 1 6 States and Union. [§ 54
each entitled at his death to his property in the state in which
she lives ; the descent of property is also different. The ad-
vantage of the variety of state legislation is that the people of
each state establish the system and make the laws which they
think best adapted for themselves, and therefore the easiest to
execute.
In size and importance the states differ widely : the largest,
Texas, has an area of 265,780 square miles ; the smallest, Rhode
Island, only 1,250 square miles ; the most populous state. New
York, has 7,300,000 people ; the least populous, Nevada, has
42,000 inhabitants; the Massachusetts population is 350 to a
square mile ; in Wyoming it is i to a square mile. Texas is
larger than Euroipean France ; New York has more people than
Belgium and Holland together ; and several other states are
large and populous enough to be a great country in themselves.
Many of the states of the Union are made up of different and
sometimes hostile sections : Illinois is divided into a wheat belt,
a corn belt, and the city of Chicago. In such states few people
are widely known throughout the state, and it is therefore diffi-
cult for voters to judge of the quality of candidates.
54. Admission into the Union.
The forty-six states have formed their relation with the
Union by five methods : —
(i) The thirteen original states joined in the Revolutionary
War and the Declaration of Independence, and ratified the
Articles of Confederation and the Federal Constitution.
(2) Out of those thirteen states, five others have been formed
by separation : Vermont out of New York in 1791 ; Kentucky
out of Virginia in 1792 ; Tennessee out of North CaroHnaJn
1796 • Maine out of Massachusetts in 1820 ; West Virginia out
of Virginia in 1862. It was expressly provided in 1845 that
Texas might be cut up into not more than five states ; but that
commonwealth has never shown any desire to break itself up.
The only probable separation in future is that of the two
peninsulas of Michigan.
§ 54] Admission. 117
(3) The only case of incorporation of an independent nation
as a state is the admission of the independent republic of
Texas, in December, 1845.
(4) Another abnormal method was the creation of the state
of California out of a region incorporated by treaty in 1848,
which had never gone through the territorial status : the people
were determined to have a state government, and Congress was
obliged to acquiesce.
(5) , Twenty-six states in the Union have been formed out
of pre-existing organized territories by act of Congress, under
the clause of the constitution : " New states may be admitted
by the Congress into this Union ; but no new state shall be
formed or erected within the jurisdiction of any other state ;
nor any state be formed by the junction of two or more states,
or parts of states, without the consent of the legislatures of the
states concerned as well as of the Congress."
In addition, eleven states which, from 1861 to 1865, withdrew
from participation in the federal government, were conquered
and practically treated as disorganized territories ; eventually,
they all accepted the terms proposed by Congress, and in 1870
the last of them was again recognized as a full and equal mem-
ber of the Union.
The usual method of admitting a territory is first to pass an
enabling act, authorizing the people to form a constitution, to
submit it to the voters of the territory for their approval, and
then to submit it to Congress. Congress has several times
delayed the admission of a state because it disUked the proposed
constitution, particularly in the case of Missouri in 1820-21, of
Kansas in 1856-58, and of Utah in 1890-95.
The Ordinances of 1784 and 1787 both promised that
Western states should be admitted " on an equal footing with
the original states " ; and the same principle of equality has
held for later annexations : each state has the same number
of senators, the same constitutional privileges, and the same
federal obligations. Nevertheless, about twenty-five states since
ii8 States and Union. [§55
1802 have entered the Union under specific conditions : in
1802 Ohio had to make an ordinance, irrepealable without the
consent of the United States, by which the new state was not
to tax lands sold by Congress during five years after sale ; in
18 1 2 the Louisiana Act laid down the condition that the Mis-
sissippi River was always to be free of toll; in 1820 the House
of Representatives proposed to prohibit slavery in the future
state of Missouri, and although this clause was finally left out,
a clause was inserted to the effect that the state should not
interfere with the rights of citizens of other states who might
come into Missouri ; in 1864 Nevada was required to agree
that slavery should never exist in the new state. The recon-
structed states all accepted conditions with regard to negro
suffrage and public debt. Plainly, the states are not equal,
even though most of these conditions have been unimportant,
like those as to the sale of public lands ; or temporary, like
the provisions as to negro suffrage.
When a territory is admitted as a state, all its pre-existing
laws, unless inapplicable or contrary to the federal constitution,
remain in force until altered by the new state. Hence in
Louisiana the old French civil law has remained in effect even
after statehood ; and in California and Utah there is still a
body of Spanish law.
55. Privileges in the Union.
States as members of the federal Union have large privileges,
the first of which is representation in the Senate and the House ;
and they all participate in the election of president. The con-
stitution of the United States especially guarantees to each of
the states a republican form of government. This clause was
inserted partly in consequence of the Shays Rebellion in 1787,
and was intended to authorize the federal government to aid
and support a state government if attacked by insurgents.
What does " republican government " mean ? That no state
may have a formal oligarchic or monarchic system. But this
§ 55] Privileges. 119
clause does not apply to bosses who get actual control of a state
government, since their rule is not hereditary, and since they
keep up the forms of election. At least fifteen times rival state
governments have been set up in the same state ; in such cases
some department of the federal government, usually the presi-
dent, must decide which is the legal body and therefore entitled
to the guaranty. Repeatedly during the Reconstruction period,
federal troops were called out to protect or disperse one of
these rival governments. Another clause in the constitution
authorizes the president to send militia or federal troops at the
call of a state government which is in distress ; and such calls
have repeatedly been made.
The next right of a state is territorial integrity : it cannot be
divided without its own consent. It is also to be protected
from invasion by a foreign enemy ; hence it is the duty of the
United States to represent the states in boundary controversies :
thus Maine, from 1820 to 1842, insisted that the United States
should make no compromise of territory disputed with Great
Britain on its northern boundary.
The states have also some important financial privileges.
The United States has twice distributed considerable sums of
money among them: in 1837 about $27,000,000; in 1891
about ;^2o,ooo,ooo ; and in 1790 it assumed about $18,000,000
of state indebtedness. These are small sums in comparison
with the amounts given by the United States through the public
lands : from first to last the United States has transferred to
the states about 162,000,000 acres of public land for various
purposes, land which, if carefully nourished and sold at its
market value, would probably have produced $1,000,000,000.
Since 1887 the United States has also made annual appropria-
tions for the support of state experiment stations, and since
1890 for that of agricultural colleges, the whole amounting to
about $2,000,000 a year.
I20 States and Union, [§56
56. Interstate Obligations.
The first group of state duties are those which they owe to
one another as sisters and equals. The constitution specifies
that " fiill faith and credit shall be given in each state to the
public acts, records, and judicial proceedings of every other
state." This means, not that state authorities are bound to
accept the acts of a neighbor as binding across the border,
but simply that, if a decision has been made in Indiana, the'
courts of Illinois are bound to accept the fact of the decision
from an authenticated copy of the record ; but the jurisdiction
of the Indiana court may still be questioned. The purpose is
that, when a matter has been examined and the facts decided
by a competent tribunal, it shall not be necessary to retry it in
every other state.
Nevertheless, two practical difficulties constantly arise : in
the first place, the same man or estate or corporation may
have property in several states, in each of which separate suits
must be brought, perhaps on different grounds, in order to
establish the title ; in the second place, no court is bound to
execute the law of another state in the Union. The United
States courts often have jurisdiction in cases of complicated
property, especially those involving railroad and other cor-
porations doing business in several states.
Another obligation is the return of fugitives. While slavery
lasted, the principle included fugitive slaves ; and by two suc-
cessive acts, of 1793 and 1850, the United States government
prescribed a method of capture independent of the state govern-
ments. The captures were unpopular in many Northern states,
and led to forcible resistance to the authority of the United
States government, and to the so-called " Personal Liberty
Bills" (1840-1861), which impeded the operation of the na-
tional statute. On adoption of the Thirteenth Amendment,
the fugitive-slave clause of the constitution became obsolete.
Another obligation is the extradition of fugitive criminals;
§56] Interstate Obligations. 121
but here the states must act. The usual method, in case a
criminal takes refuge in another state, is to have him arrested
and held for a few days, until the governor of the state from
which he came may send a direct " requisition " to the gov-
ernor of the state in which he is found, to authorize his return ;
when such a document is granted, the police authorities allow
the man to be carried beyond the state boundary. Requisi-
tions are often refused, on the ground that the crime charged
is unknown to the statutes of the refuge state, and sometimes
because of personal hostility between governors. The system
is one necessary for the protection of the community ; but the
Supreme Court has decided that there is no way to compel a
governor to do his duty, if he is indisposed.
Another clause of the constitution provides that " the citizens
of each state shall be entitled to all privileges and immunities
of citizens in the several states." The purpose is to prevent
states from interfering with citizens of other states who want to
move about or to settle within their limits, whether by laying
special taxes on them, or by excluding them from carrying on
a lawful calling, or by withdrawing the right to use the courts
of the state. Any citizen of the United States has this right
to move about the whole Union, and t6 dwell in every state
on the same terms as its own citizens.
Another obligation (not expressed in the constitution) is
comity, — that is, the duty of the states to act toward their
sister states with courtesy, consideration, and good humor.
For instance, inveighng a person charged with crime over the
• border of a state and then arresting him, is not exactly a crime,
but it is contrary to pleasant relations between neighbors.
How far is one state obliged to take notice of the laws of
another state? This is a branch of jurisprudence known in
legal literature as "conflict of laws," or as "private interna-
tional law.'' Our courts often take note of laws or decisions in
other states or in foreign countries. For instance, suppose a
Frenchman dies in New York leaving Parisian real estate to his
122 States and Union. [§57
son in Georgia ; the Georgia courts cannot avoid taking note
of the French laws of descent, and may also apply the New
York law.
57. Duties in the Union, and State Sovereignty.
For the prosperity of the Union, the states must carefully
observe their obligations to the Union. First of all, they are
bound to keep up the forms of the United States government,
— to carry out the federal laws by erecting districts for mem-
bers of Congress and by electing senators ; and all state officers,
executive, judicial, and members of state legislatures, are con-
stitutionally bound to take oath to support the constitution of
the United States and to maintain a republican government.
The states are under obligation not to contravene the federal
constitution by clauses in their state constitutions ; yet from
1865, when the federal constitution first prohibited slavery,
till the constitutional revision of 1890, the Kentucky constitu-
tion retained a clause to the effect that " the right of the owner
of a slave to such slave, and its increase, is the same, and as
inviolable as the right of the owner of any property whatever " ;''
but it was simply a dead letter. The states are also bound not
to pass laws which in any way interfere with the prerogatives
of the federal government : they must not tax federal prop-
erty, directly or indirectly ; they may not even directly tax
federal banks or the incomes of federal officials. When this
principle is disregarded, it often leads to conflicts of author-
ity between state and federal officers, and even between state
and federal courts, as in Ohio in 1824. Usually a legal
line between the two sets of authorities is drawn by a test
case decided by the federal Supreme Court.
The states are formally bound not to enter into compacts with
one another, or with a foreign power, without the consent of
Congress, or into any treaty, alliance, or confederation. This
article is intended to prevent the formation of separate internal
leagues and agreements, and applies to such organizations as
the Confederate States of America, formed in 1861.
§57] State Sovereignty. 123
The most important duty of the state is to remain in the
Union. Long before the Civil War, the so-called " doctrine
of state rights " was worked out to its logical consequence^, —
that the sovereign rights of the state have never been surren-
dered, and may legally be protected by forcible withdrawal from
the Union. The basis of state rights and secession is the same,
— namely, the assumption that the states are and always have
been sovereign, independent, and free to dissolve a voluntary
union.
To settle a question of that nature on theoretical ground is
. difficult ; but in practice no state in the Union has ever been
sovereign, except Texas. No one of the thirteen original states
ever made a treaty for itself, or a foreign war on its own ac-
count ; throughout the Revolution all the states acknowledged
a responsibility for the common national funded debt and paper
money ; they all united in making a national army and navy,
and in appointing national officers to command; during the
weak Confederation the states admitted the sole authority of
Congress to negotiate treaties, to coin money, and to do many
other important acts. Even during the secession era of 1861-
1865, no one of the seceding states ever really acted independ-
ently : at the earliest moment they went into a confederation,
which directed their joint affairs during the war. In the opinion
of the Supreme Court of the United States in passing on the
Reconstruction acts, no one of the states was ever outside the
territory or jurisdiption of the federal government after admis-
sion within the Union. Chief Justice Chase called it " an
indestructible union, composed of indestructible states."
Practically, the result of the Civil War was to make it plain
that a large proportion of the American people disbelieved the
doctrine of state sovereignty, and that any body of states which
in the future may attempt to assert that doctrine by actual
secession will have to fight the rest of the states. Henceforth
nobody can for a moment suppose that there can be such a
thing as peaceful secession. Yet the states do retain a large
1 24 States and Union. [§ 58
number of absolute and undoubted rights. Consolidation of
the Union would be almost as great a misfortune as disunion.
58. Functions of State Government.
Although by tradition and by the Tenth Amendment to the
constitution the states possess the powers not delegated to the
federal government, the total body of such powers is in action
much restricted. The states are by the federal constitution
directly prohibited from the exercise of some specified powers ;
thus no state can coin money, or gj-ant titles of nobihty ; no
state can establish slavery, or deprive a citizen of the United
Slates of citizenship, or deny the suffrage to citizens of the
United States on account of race, color, or previous condition
of servitude.
Other powers are indirectly prohibited : for instance, no
state can exercise jurisdiction over the District of Colum-
bia, because the United States has exclusive jurisdiction
there.
There is a small field in which neither the nation nor the
state can legislate : neither power may give preference to the
ports of one state over another, or pass a bill of attainder or an
ex post facto law, or deprive a person of life, liberty, or prop-
erty without due process of law, or abridge the constitutionally-
protected privileges or immunities of citizens.
The area of excluded powers is very much enlarged by the
particular provisions of state constitutions, especially by the bills
of rights and the restrictions on legislation ; for example, many
constitutions withhold the right to grant special charters to cor-
porations, or to give public aid to railroads. The local govern-
ments are still more tied up by withdrawals of powers nominally
within their field. The result is that in America the possible
functions of government are smaller than those exercisable by
European nations, and smaller than they were a century ago.
Nevertheless, there is still an immense field for legislation :
thousands of new statutes are adopted every year, and thou-
*§ 58] Functions. 125
sands of court decisions expound constitutions, statutes, and
principles of government.
The first group of fundamental state powers is concerned
with individual rights : the states may confer privileges on
citizens and aliens, including the suffrage ; and they continually
regulate the ordinary relations of man with man, and of property
(such as the right to acquire, to sell, to transmit by gift or will or
by inheritance), as well as the relations of officials with private
individuals. Included in this power is the enormously impor-
tant right to create corporations, which have many of the privi-
leges of individuals, such as the right to hold property, to sue,
and to be sued.
The next group of powers is territorial : almost the whole
domain of private landholding. and transfer comes under the
state governments ; the state owns public streets and roads,
parks, and public buildings ; the state also enjoys and may
delegate the great right of eminent domain, — the appropriation
of private real estate for public purposes on payment of a reason-
able compensation. The state makes and alters the network of
territorial subdivisions, — counties, townships, school districts,
towns, cities, boroughs, wards, voting precincts, judicial districts,
and all the rest.
The financial powers of the state are large. The common-
wealths and their creatures, the local governments, raise in
taxes about one and one half times as much per capita as is
raised by the federal government ; and they expend all this
and more, for they are constantly incurring debt.
The commercial powers of the states are many fold greater
than those of the nation, because -they control almost all private
business not interstate, — manufactures and industries of every
kind, and transportation within the state. Since the volume
of business which begins and ends within a state is very much
greater than that which crosses even one state boundary, the
larger part of American commerce is directly subject only to
state law.
126 States and Union. [§58'
The states have the important military right to employ organ-
ized force to keep order, if necessary. The police of the cities
are really state officers ; the militia called out to execute the
laws are under state command. Public health and morals are
largely controlled by the states : epidemic diseases, dangerous
pursuits, the question of the sale of intoxicating liquors, these
are all practically out of the federal realm. Finally, to the state
falls also almost entire control over the two great agencies of
civilization, religion and education. f
CHAPTER VII.
STATE LEGISLATURES.
59. References.
Bibliography: Channing, Hart, and Turner, Guide (1912), §§ 203,
272; F. A. Cleveland, Organized Democracy (1913), §§ 273, 285,
290, 303; P. O. Ray, Pol. Parties (1913), 411, 412, 438-442, 470-475;
A. N. Holcombe, State Govt. (1916), 483, 484; A. B. Hart, Manual
(1908), §§ 105, 106, 144, 161, 207, 243, 289. See also references in ch. vi
above.
State Legislature in General: E. McClain, Constitutional Law
(1910), §§45, 46; P. S. Reinsch, Legislative M ethods (1907), chs. iv-ix;
T. Roosevelt, American Ideals (1897), No. 5; Cyclop, of Am. Govt. (1914),
Arts, on Committee Systems; Legislature and Legislative Reform;
Rules (2 articles); State Legislatures; Veto Power; A. N. Holcombe,
State Govt. (1916), ch. ix; F. A. Cleveland, Organized Democracy (1913),
§§ 274-276, 283, chs. xxvii-xxix; A. L. Lowell, Public Opinion and Popu-
lar Govt. (1913), ch. xvi; J. Schouler, Constitutional Studies (1897), pt.
iii, ch. v; J. Bryce, Am. Commonwealth (ed. 1910), I, chs. xl, xliv, xlv.
— Sources: C. A. Beard, Readings in Am. Govt. (1909), ch. xxv; P. S.
Reinsch, Readings on Am. State; Govt. (1911), ch. ii.
Legislation: E. McClain, Constitutional Law (1910), § 46; P. S.
Reinsch, Legislative Methods (1907), ch. x; J. Ordronaux, Constitutional
Legislation (1891), ch. x; J. A. Fairlie, Municipal Administration (1901),
ch. xvii; Cyclop, of Am. Govt. (1914), Arts, on Codification; Uniform
State Legislation; C. L. Jones, Statute Law Making (1912); F. J. Stim-
son, Poptdar Law Making (1910); D. B. Eaton, Govt, of Municipalities
(1899), ch. x. — ^Sources: N. Y. State Library, Summary of Legislation,
Review of Legislation (annual volumes). The address of the president
of the Am. Bar Assoc, each year usually includes a review of the
changes in statute law.
60. Members of the Legislature.
Since under the theory of American government the states
retain all the powers not granted to the federal government,
and since at the beginning the state legislature was the chief
power in the state, it is a recognized principle that the legisla-
127
128 State Legislatures. [§ 60
ture may perform any act incident to government which is
not by the federal or state constitution withheld or otherwise
assigned. Hence it is the most powerful part of every state
government.
In every state the members of the legislature are chosen by
popular suffrage. During colonial times and for many years
later, many states had special qualifications for legislators : in
two states, Maryland and Tennessee, no minister might be a
member. In most states now, no holder of an executive office,
state or national, may sit in the legislature ; in Indiana, even a
bank officer is excluded from it. Property qualifications for
office have now almost entirely disappeared ; and it is a rule
showing very few exceptions that a person eligible to vote is
also eligible to hold office.
Everywhere throughout the United States it is either a written
or an unwritten law that a member of the legislature must live
in the district from which he is elected ; and the rule is practi-
cally self-operating, for it is next to impossible to elect a man
who is not a resident among the voters who choose him. With
three exceptions, legislators are elected from districts intended
to be about equal in population : in Connecticut, each town
or city has one or two members of the lower house ; in Rhode
Island each town or city has one senator ; in New Hampshire,
every town of 600 inhabitants has a representative, and
an additional one for each increase of 1,200 inhabitants, but
towns of smaller population have representation a proportionate
part of the time. In many states, the counties are the unit for
districting for members of the legislature. The colonial idea of
representation by communities has almost disappeared ; for to
a modern mind it seems inequitable that a village of 75 voters
in Connecticut should have half as much influence in the legisla-
ture as a city of 15,000 voters.
The term of legislators varies from one to four years, the
usual term being two years ; but the continuance is very short,
especially in the lower house : people do not recognize the
§ 6i] Organization. 129
advantage to a district of being represented by a man who has
had long experience. In a recent New England legislature of
106, 100 had not sat in the previous legislature. The chance
is about even that a member, no matter how serviceable, will
not get a second term ; it is thought wonderful in Massachusetts
that a particular member should have been eight years elected
to the lower house. There is of course some advantage to the
community in a large number of ex-members of the legisla-
ture, acquainted with the methods of public business ; and the
legislatures are a kind of school for ambitious men, who hope
to pass from the lower to the upper house, and thence if possi-
ble to other state offices or to Congress.
In quality, the state legislatures fairly reflect the average man
in the community, except that the inexperience of new mem-
bers makes it easier for party leaders to manipulate their votes.
As the work of the legislatures is tedious and often long, and
the pay small, it is difficult to attract professional men who
have large incomes. Wherever there is a highly-organized
boss system, some members of the legislature come in really as
representatives of particular politicians or of business men not
known in politics : Theodore Roosevelt found in the New York
legislature in 1883 one man whose vote was ' controlled by a
criminal. The difficulty with legislators who are under obliga-
tions to party chieftains is that they must follow the will of their
leaders rather than the will of their own constituents. Never-
theless, members of legislatures are in general very sensitive to
public opinion, and most of them represent and express the
wishes of the people who send them.
61. Organization of the Legislature.
The state legislatures differ in numbers : Delaware has 1 7
senators ; Indiana has 50 ; the Delaware House has but 34
members; the New Hampshire House has 397. The average
legislature, taking both houses together, has about 100 to 150
members. In all the states and territories, legislators are paid,
130 State Legislatures. [§ 61
the largest annual amount being ^1,500 in New York, the
smallest annual salary ^150 in Maine. Many states prefer
the per diem system, ranging from eight dollars a day in
California to three dollars a day in several states ; in addition
it is common to allow mileage, commonly at a rate much
larger than actual expenses. In almost all cases, however,
the salary and fees are too small to be an object in them-
selves : most aspirants for the legislature seek it for reputation
or power or opportunity.
The official title of the legislative branch is commonly
" legislature " or " general assembly " ; in Massachusetts and
New Hampshire it is the colonial title " general court." The
upper of the two bodies is invariably called the Senate ; the
I lower house, sometimes the House of Delegates, more often
the House of Representatives. Although three of the states
of the Union — Pennsylvania, Georgia, and Vermont — at one
time had legislatures of a single house, there are now two
houses in every state. The two bodies represent different
gatherings of constituents, and often exhibit permanent differ-
ences of temperament ; and the bicameral system gives time for
a thorough discussion of measures. Although the upper house
in many foreign countries, as in England, France, and Canada,
has become weaker than the lower, in the state legislatures the
two houses have about' equal power, though the Senate, as the
smaller, is more likely to do effective work. It frequently also
has special functions, such as passing on appointments and
sitting on impeachments. .
The legislature habitually sits at the state capitol, or state
house, in which is also the governor's office, and frequently
a chamber for the state Supreme Court. Each house always
has its separate chamber for meeting ; and usually a flag ap-
pears over each wing of the building when the legislature is in
session.
The internal organization of the houses is determined by the
state constitution. The Senate has in some cases an elective
MINNESOTA
I
VJ ' r ! 5 . ^, ^^ 1, SI, a, t a i
PROVIDENCE
RHODE ISLAND
STATE CAPITOLS
§ 62] Process. i 3 i
president, but more often the lieutenant-governor of the state
sits, like the vice-president of the United States, as presiding
officer ; every lower house has its elective speaker. The habits
of Congress have so far reacted on the state legislatures as to
bring about almost the same system of internal organization, —
a speaker, a body of standing committees, and a conclave of
party leaders, acting as a steering committee. The speaker
directs who may or may not have the opportunity of addressing
the House, decides on points of order, and is a party leader,
brought into consultation on any question as to the attitude of
his party on pending measures.
Many cases of conflicting houses, or even of legislatures, have
occurred. In 1849 two so-called " houses " were organized at
the same time in the same room in Ohio, and continued their
double sessions for several weeks. In 1873 the Kellogg and
McEnery legislatures sat in two halls in New Orleans till *the
latter body was broken up by United States troops.
62. Process of State Legislation.
In two states that have annual elections, — Massachusetts
and Rhode Island, — and in four others, — New Jersey,
Georgia, New York, and South Carolina, — the legislature
meets every year ; in the other states, only once in two years ;
in Alabama, only once in four years. The governor may
summon a special session if the business is not completed,
or if new business arises. Many of the constitutions limit
the length of session to forty or sixty days ; and it is very
common to cut off the per diem at the expiration of the
specified time. The truth is that in many states people feel
uneasy while the legislature is in session.
During the session, the legislature commonly meets every
week day, though in small states it is very common to adjourn
over Saturday so that members may have two days at home ;
and very often all the members have railroad passes, so that it
is easy to come and go. As in Congress, each house has an
elaborate system of rules, commonly reenacted from session
132 State Legislatures. [§62
to session with amendments, the prime object being to enable
the presiding officer to bring questions down to definite issues,
and to enable the majority party to select the measures upon
which it wishes to allow a vote.
The rules are further intended to prevent surprise, and com-
monly include provisions that bills must be submitted in writing,
must be read and passed upon not less than three times, must
not go through those three stages without the intervention of a
day, must be reported on by an appropriate committee, and
must be duly authenticated by the signature of the presiding
officer of each house.
In most legislatures which are not absolutely under the
thumb of a boss, there is plenty of genuine debate, more than
in the national House of Representatives. Questions which
personally interest members and affect their constituents are
always coming up, and party lines are not drawn with any
strictness on general non-political questions. All the state
legislatures have the system of previous question, under which
debate may be, and frequently is, remorselessly cut down ;
without some such arrangement, the houses would never be
done with debating.
In every legislature, the rules of procedure are such that, if
they are observed, it is next to impossible to shp a bill through
without affording an opportunity of knowing its character and
giving honest opponents an opportunity of debate ; but the
rules may be so manipulated as to prevent discussion. Dead-
locks between the two houses of a state legislature are not
uncommon, and sometimes last for several weeks. A fre-
quent result of a deadlock over a bill is that it fails for lack
of agreement ; but a common way out is the appointment
of a committee of conference from the two houses, which
recommends some form of compromise.
§63] Influences. 133
63. Influences on State Legislation.
In the process of state legislation, the first question is that of
initiative. While in some foreign countries bills must be intro-
duced by the executive or by only one of the two houses, in
the United States the initiative is not only in either house, but
in any member of either house, and therefore in any constitu-
ent or body of constituents who can induce a member to submit
a bill. In fact, bills are often drawn beforehand by people who
desire legislation. The governor has everywhere the right to
recommend legislation in his annual messages, and doubtless
sometimes he or his friends actually draw up bills for considera-
tion. In all the legislatures, the final form is given to measures
by the committees.
The strongest influence, and the most effective in the long
run, is public sentiment : if a question of taxation has been
long discussed out of doors, the time comes when the legisla-
ture is forced to act upon it ; a general railroad charter bill in
which the whole community is interested will be pushed or held
back, according as the pubHc throughout the state is interested.
The public press is one of the means of expressing this interest ;
another, and perhaps a more effective, way is through private
letters and telegrams, of which hundreds sometimes pour in
on a single member.
Bills of every kind run the gauntlet of the committees, and
the greater part are remorselessly smothered in private con-
claves. To be sure, committees frequently have public hear-
ings, and in some states must hold them if desired ; but their
minds are made up in private session, and in almost every state,
unless a committee will make an affirmative report, no vote can
be reached. Hence a man interested in the passage of a
measure goes to members of the committee which has it in
charge. In some cases a delinquent committee can be awak-
ened by a demonstration Hke that of the nine car-loads of
people from Amsterdam Avenue, New York, who a few years
I 34 State Legislatures. [§ 63
ago prevented the misuse of their street by going up to Albany
to protest. In Massachusetts the committees are compelled
to make a report either for or against a bill, and either house
may, and frequently does, insert another measure for that pro-
posed by the committee.
The members of committees are appointed by the speaker or
the president of the Senate, who thereby has more power over
the course of legislation than any one else. It is hardly to be
presumed that committees made up by the speaker will report
measures of which he disapproves ; but, should they do so, the
speaker will almost invariably interpret the rules of the House so
as to prevent anything to which he is opposed from coming to a
vote. This practice tends to legislative unity ; for upon one man
is thrown the responsibility both of initiating measures through
the committees and of reviewing them thereafter. The speaker
of the House of a legislature is therefore, hke the prime minis-
ter of England, the centre of systematic legislation, working
through and in harmony with the members of the majority;
and he frequently allows measures to pass to which he is
personally opposed.
In a few states there is behind the speaker the state boss,
who controls the majority of each house, and hence the choice
of the presiding officer. Sometimes the boss is governor;
sometimes he acts in harmony with the governor ; sometimes
he acts against the governor : in any case, no legislation will go
through which he opposes ; and people who really desire to
have a thing done, or to prevent it, are forced to appeal to
him or to persons whom they suppose to have influence over
him.
Mr. Roosevelt found in the New York legislature, when an
innocent measure was proposed to which presumably no objec-
tion could be found, that certain members opposed it ; he then
set to work to find out who their influencers were, and found
that one was the creature of a federal official of the opposite
party, and another of a corporation manager. When influence
§63] Influences. 135
was brought to bear upon these owners, they gave expHcit
orders to support the bill, and their members instantly changed
front. In most states and in most years, the greater number
of members are free from such paralyzing influences ; but there
are cases in which the majority of the legislature are simply
played as counters by hidden men of power.
How far the members of state legislatures are influenced by
money is hard to know. One of the few advantages of the
boss system is that it makes bribery of a member quite inef-
fectual, since he dare not under any circumstances vote other-
wise than as the boss directs. Mr. Roosevelt thought that about
one third of the members of the legislature when he knew it
were open to some kind of money consideration ; and there
have been cases in other states where honest members have
laid on the speaker's table great rolls of bills which had been
offered them for their votes. Even when a member is open to
corrupt influence, it is more likely to take the form, not of cash,
but of a privilege, or of shares of stock, to be made more valuable
by pending legislation. Hundreds of men pass through the
legislature without meeting the slightest effort to influence their
votes corruptly, because they are perfectly well known to be
above any form of bribery.
One of the most frequent influences on legislation is the proc-
ess called " log-rolling," by which various members agree that
they will vote for the others' measure or part of a measure. For
instance, if insane asylums are to be constructed, members of
different counties will agree to vote for a bill to distribute the
new buildings among their counties, and thus a majority for
the whole bill can be obtained.
Another method of influencing legislation is to introduce so-
called " strikes," — bills not intended to be passed, but to be
bought or shaken off" in some way : rich corporations are the
unfailing objects of vexatious and unnecessary legislation, often
carried along until some inducement is made to withdraw it.
Where there is a legislative boss, he arranges those matters ; and
I 36 State Legislatures. [§ 64
frequently, for a fixed contribution to the campaign fund, agrees
that the corporations shall not be further annoyed.
64. The Governor's Veto.
In forty-three of the forty-five states the two houses do not
make up the whole of the legislative power, inasmuch as the
governor has a qualified veto. The only remaining exceptions
are Rhode Island and North Carolina, This veto power is
practically found among the functions of the governors in all
the thirteen colonies except two. The colonial veto, however,
was absolute, whereas in all the states but one the veto may be
and frequently is overridden by the later action of the two
houses. In seven states a majority of all the elected members
is required on such second vote ; in two states, a three fifths
majority, in all the other states, a larger majority, from two
thirds up.
Nevertheless, in order to be effective the governor's veto
must be definitely expressed : in all the states a bill becomes an
act if it lies in the hands of the governor without examination
for periods ranging from three to ten days. When the legis-
lature adjourns before the expiration of this time, in eight
states the governor has a period of from ten to thirty days to
examine bills and decide whether he will veto or sign them.
An interesting provision, which obtains in about twenty states,
is that the governor may select items out of an appropriation
bill for his veto, permitting the rest of the bill to go into effect.
The effect of the governor's power is not measured simply
by the number of bills vetoed: the fact that the governor is
opposed to a measure often causes it to be modified or with-
drawn ; or a conference is held with the governor by those in-
terested in the bill, and modifications are made to meet the
objections which he puts forward. Veto messages usually call
public attention to a measure ; and in many instances bills
which have gone through by large majorities are made so un-
popular that on a second vote they have not even a majority.
STATE OF WISCONSIN.
-5^
No. 98, A.
January 23, 1001. — Introduced by Mr. STEVEN'S. Read first and second times and referred
to committee on Privileges and Elections.
To abolish political caucauses and conventions and provide for political nominations by di-
rect vote.
Tiie people of the State of Wisconsin, represented in senate and assembly,
do enact as follows?
Section 1. All statutes pertaining to political caucuses and conventions for the nom-
2 ination of all officers provided for in this act are hereby repealed.
Section 2. Hereafter, all candidates to be voted for by the ptople, except those for
2 judicial, village, township or school district offices, or at special elections to fill vacan-
3 cies, shall be nominated either at a Jjrimary election, held in accordance with this act,
4 or by petition in accordance with sub-division 3 of section 30, of the statutes of 1898.
Section 3. Primary elections shall be held at the regular polling place in each elec-
2 tion precinct in this state,, on tho first Tuesday in September, 1902, and biennially
3 thereafter, for the purpose of nominating candidates to be voted for at the next general
A LEGISLATIVE BILL
^6s] Output. 137
much less the necessary two thirds or three fifths. Upon the
whole, the veto power is one of the most salutary parts of the
system of state legislation ; for it may be applied to bills which
have been smuggled through the two houses without a clear
understanding of their intention, or it may be invoked by
public opinion as the last opportunity to defeat an undesired
measure.
65. Output of State Legislation.
In most state legislatures, distinction is made between public
legislation and private bills — that is, bills which apply to only
one or to a few persons, and which therefore are based on local
or temporary considerations. Many state constitutions abso-
lutely prohibit private legislation, or even legislation intended
for a particular city : the Pennsylvania constitution, for instance,
has thirty-two sections prohibiting the passage of local and pri-
vate bills on various subjects. Some cases for relief to a single
individual occur, — as, for instance, when a public officer is
robbed of public funds ; but in general private bills do not
interest the legislature, are not examined carefully on their
merits, and are passed by a system of log-rolling.
One of the great abuses of legislation is the granting of
special charters to banks, railroads, and other corporations.
Under a more enlightened system general statutes are passed
with great detail, prescribing the form of all banking or rail-
road corporations ; and in order to get a charter these general
conditions must be fulfilled.
Taking public and private bills together, the number is
prodigious. In the year 1899, ^^^^ forty-five states appear to
have passed more than 5,000 statutes, besides many private
bills; the state of Massachusetts in the five years from 1S91 to
1895 put upon the statute-book 2,986 statutes; New York, in
the one year 1895, passed 1,045 statutes. The result is that
within a state the law is constantly changing so rapidly that
neither public officers nor lawyers can keep track of it. The
details of statutes may be shown by a few examples : one
138 State Legislatures. [§65
statute incorporates gun clubs ; another prohibits the use of
fire-crackers on the public highway ; another makes a new
charter for a great metropolis ; another empowers towns to
build bicycle paths ; another exempts family pictures from seiz-
ure for debt. Bills have repeatedly been introduced into legis-
latures for the taxing of bachelors ; and in one state druggists
are forbidden to sell any patent medicines which they have not
themselves tested.
In the Southern states especially, there is a large amount of
local legislation, — such as bills permitting Harding County to
prohibit the sale of liquor, prohibiting hunting on Sunday in
Garrett County, authorizing Scott County to tax itself for a
railroad, and so on. Everywhere there is far too much legisla-
tion as to local governments and corporations : new charters
are altered by special acts, followed by amendatory acts, suc-
ceeded by partial repeals, until the whole law is in confusion.
To obviate this difficulty, it is the habit of most states to codify
and consolidate the laws by issuing every few years a volume of
revised statutes, from which amended, repealed, obsolete, or
temporary statutes are excluded. Many other countries, espe-
cially France and those under French influence, have elaborate
civil and criminal codes, prepared, like a constitution, in a
number of sections, and attempting to cover the whole field of
human rights and responsibilities. Such codes simplify the law
by superseding all conflicting statutes ; but the new laws speedily
alter ; and under our system of judicial examination any para-
graph of the code may require judicial decision before its
meaning can be ascertained.
It is of course necessary that, as the community advances,
the laws shall keep pace with new conditions. New political
dangers arise against which there must be reform legislation,
great corporations assume new importance and must be curbed
by new laws ; but confusion comes from the rapid change in
the membership of the legislatures, and the habit of hasty legis-
lation without a working out of all the details.
§65] Output. 139
An effort has for some years been making for agreement
between the statutes of various states ; and conferences are held
from year to year, by commissioners representing the various
states, to draw up statutes on such subjects as the execution of
deeds and wills and the responsibility for commercial notes : the
legislatures are then asked to enact identical laws.
CHAPTER VIII.
STATE EXECUTIVES.
66. References.
Bibliography: Channing, Hart, and Turner, Guide (191 2), §§ 203,
272; F. A. Cleveland, Organized Democracy (1913), §§ 314, 324, 336;
A. N. Holcombe, State Govt. (1916), 484; A. B. Hart, Manual (1908),
§§ 105, 106, 208. See also references to ch. vi above.
The Governor: P. L. Kaye, Colonial Executive prior to the Resto-
ration (1900); E. B. Greene, Provincial Governor (1898); F. J. Goodnow,
Administrative Law (1905), 94-110; T. M. Cooley, Constitutional Limi-
tations (7th ed., 1903), 218-222; Cyclop, of Am. Govt. (1914), Art. on
Governor of the State; J. H. Finley, Am. Executive (1908), chs. i, ii, xi. —
Sources: P. S. Reinsch, Readings on A^n. State Govt. (1911), ch. i; lists
of governors in Tribune Almanac, World Almanac, Atn. Year Book, etc.
Executive Departments and Boards: F. J. Goodnow, Adminis-
trative Law (1905), bk. ii, ch. iv, pt. ii; J. Bryce, Am. Commonwealth (ed.
1910), I, ch. xli; J. A. Fairlie, Centralization of Administration in N. Y.
State (1898); A. N. Holcombe, State Govt. (igi6), ch. x; F. A. Cleveland,
Organized Democracy (1913), §§ 315-317, 322, 325-335, 344, 345; A. L.
Lowell, Public Opinion (1913), ch. xvii; T. Roosevelt, American Ideals
(1897), No. 8; S. E. Sparling, State Boards of Control (Am. Acad. Pol.
Sci., Annals XVH, 74-91, 1901); Cyclop, of Am. Govt. (1914), Arts, on
Boards, State Executive; Civil Service, State; Commissions in Am.
Govt.; Executive and Executive Reform; Executive Power; Recall;
Removal of Public Oiificials; State Departments, Heads of; State
Executive; B. Wyman, Administrative Law (1903). — Sources: C. A.
Beard, Readings in Am. Govt. (1909), ch. xxiv; P. S. Reinsch, Readings
on Am. State Govt. (191 1), ch. v; reports of the various executive com-
missions in the states and -cities, especially on water, parks, streets,
railroads, public lighting, prisons, asylums, and poor.
67. The Governor.
As the legislature is divided into two houses and many com-
mittees, so the state executive is broken up into several related
parts, — the governor, the heads of the great departments, and
the minor executive ofificers, — often acting independently of
each other, sometimes at cross purposes. The governor is
140
§67] The Governor. 141
everywhere elected by popular suffrage, although in some
states, especially Rhode Island, the legislature may choose if
there be no majority.
The term of the governor is in a few states one year only, in
about half the states two years, in the remaining states usually
four years ; in some states he cannot be elected to two succes-
sive terms. In practice, popular governors in states with a
short term are likely to be reelected for one or two terms ; in
Massachusetts, a one-year state, it is an unwritten law that the
governor must not serve more than three terms ; in most two-
year states a governor stands a good chance of being elected
for a second term ; in a four-year state he is not likely to be
reelected at all.
This has not always been the practice of the states : from
1799 on, four Vermont governors filled thirty-three out of forty-
four years; John Hancock was eleven times governor of Massa-
chusetts ; Jonathan Trumbull was seventeen times governor of
Connecticut ; George Chnton was for twenty-one years governor
of New York. The only case of the kind within recent years is
Robert E. Pattison, who between 1883 and 1895 served two
terms of four years each as governor of Pennsylvania, and was
a candidate again in 1902.
When the new states were formed, several of them tried the
experiment of having an executive board at the head of the
state, — thus in Pennsylvania and Massachusetts there was an
"executive council"; but by 1790 all had adopted the sys-
tem of a single head.
The dignity of the -office of governor is high. In a few states
there are governors' mansions, a convenience which ought to
exist in every state. The governor has a salary, ranging from
$1,500 a year in Vermont to $10,000 in New York, Pennsyl-
vania, and New Jersey.
The duties of the governor may be classified as political,
administrative, and social. As a political officer, he represents
the commonwealth in its relations with the federal government
142 State Executives. [§67
and with other states in the Union ; he makes representations
of the rights of his state in cases of dispute ; he has power to
summon the legislature, to advise it, and to veto bills ; he may
designate a United States senator, in case of vacancy, to serve
until the next session of the legislature ; and a frequent ambition
of a successful governor is to make his office a stepping-stone
to the Senate.
The governor has important administrative duties, most im-
portant of which are the power of appointment of minor officers
and of some department heads, and a circumscribed removal
power. As head of the state military system, he has the right
to designate a staff, who receive complimentary military tides
and who accompany him on occasions of ceremony ; he is
responsible for the execution of the laws, and may even call
upon his military force to put down mobs and insurrections and
protect the officers of the government. He supervises other
executive officers, may investigate their conduct of business and
stimulate them to the performance of their duties ; and with
few exceptions, the governor has an unhmited power of pardon
over offences committed against the state.
Among the social duties of the governor is that of attending
public meetings and celebrations, funerals of noted men, the
graduating exercises of state universities ; of opening fairs and
exhibitions ; of dedicating buildings and christening ships. Gov-
ernors are always in request as speakers on public occasions, and
frequently find this service exhausting; some excellent gover-
nors have died in office because of the fatigue of constant
public speaking.
Thirty-three of the states have lieutenant-governors, who in
most cases are presidents of the Senate, and occasionally have
other small functions. In some states, when the governor is
out of the state, the heutenant-governor fulfils his duties ; and
in two recent instances they have used this power to make
important appointments during absences of a few hours. The
lieutenant-governor becomes important in case of the death or
§68] Governor. 143
the disability of the governor, because he takes his place during
the remainder of the term.
68. State Executive Departments.
In every large community the executive business must be
divided ; and most governments have either the parliamen-
tary system of an executive committee of the legislature, or the
United States federal system of appointive heads responsible to
the chief of the state. Only one of the forty-five states of the
Union has adopted either of these two efficient systems : in
every state, some of the chief executive officers, and in most of
the states all of them, are elected, and are often chosen at differ-
ent times from the governor, to whom they are not responsible.
This is perhaps the weakest feature of our state governments,
because it makes it impossible to carry on the various depart-
ments with due relation to each other, because the governor has
little power over officials who are not doing their duty, and be-
cause both governor and department heads seek to check each
other by securing acts from the legislature.
The principal important state officials are the secretary of
state, who has charge of the records and seal of the state ; the
state treasurer, through whose hands pass the public moneys ;
the attorney-general, who gives legal advice to the governor and
other officers and is responsible for the prosecution of criminal
suits ; the comptroller or auditor, who is the bookkeeper of the
commonwealth ; the head of the public instruction of the state ;
and the adjutant-general, who has direct charge of the militia.
In a few states, as Massachusetts, the governor has also an ad-
visory council, the relic of a similar council in the colonies.
This body has the right to veto some of the governor's acts,
and thus to limit his power without adding to his efficiency.
The reason why the state administration is not better organ-
ized goes back to the colonies, which were all jealous of their
governors' appointments, and in many cases set up an elective
treasurer and sometimes other smaller officers. Hence, in the
1 44 State Executives. [§ 68
early state constitutions the power of the governor was cut
down, and other officers were chosen as a check against what,
it was feared, might become a despotism. At first the legisla-
ture appointed many of these officers, and in some states does
so still, — for instance, the superintendent of education in New
York State.
With few exceptions, the important executive officers go
through the regular process of nomination and choice by gen-
eral suffrage at a regular election ; in Pennsylvania the attorney-
general, secretary of state, superintendent of education, and
some other officers are appointed by the governor. These
officers are all paid salaries, usually too small for the responsi-
bility. The most lucrative office is that of state treasurer, for
in some states, either with or without warrant of law, he deposits
state funds in banks which will agree to pay him the interest.
In case of the failure of such banks, the treasurer is left in a
very difficult position.
In addition to the officers just mentioned, there is a host
of commissionerships and executive boards, most of them
appointed by the governor with the approval of the state
Senate. Most of these officers serve for brief periods, and are
subject to removal by the appointing power — the governor or
the legislature, as the case may be.
In practice, the relation of the governor with other executive
officers is one of friendly cooperation, if the individuals feel
kindly toward each other ; but they may represent opposite
parties and have conflicting purposes. The governor can get
the public ear through his messages ; but deadlocks are frequent
between the governor and the treasurer or the auditor or the
adjutant-general. The legislature is likely to side with one
or the other of the parties ; and it is hard to get rid of an
elected official during his term, except by the unusual process
of impeachment. Minor state officials are responsible to
their immediate chiefs, and are out of the province of the
governor.
§69] Departments and Boards. 145
69. System of State Boards.
In every state large executive powers are exercised through
boards, a form of state government that is at present much
increasing. Some of these boards are highly paid, and the
members give a large part of their time to the pubhc service ;
others are underpaid ; others act without pay. The advantage
of the board system is that there is a variety of counsel, and
an opportunity for representing various sections of the state.
One of the few places in the state government where parties
are officially recognized is in the so-called " non-partisan "
boards, — for example, a board of police, or a board of election
commissioners, which must be composed of members of more
than one political party. This system in practice works badly,
because, so far from being non-partisan, it usually makes a
board bi-partisan and introduces a permanent opposition ; or
else the members come to an understanding that the patron-
age and privileges shall be divided between their parties.
Of all executive officers, " non-partisan " boards are the least
satisfactory.
Many boards are organized for some particular state ser-
vice. There are 25 boards of railroad commissioners, more
than 30 boards of health, 20 fish commissions, about 25
bureaus of labor, besides gas commissions, police commissions
(organized in large cities under special state law), prison com-
missions, boards of education, and the like. In addition there
are many boards of local state institutions, such as trustees of
lunatic asylums, penitentiaries, and normal schools. In the
commonwealth of Massachusetts alone there are more than
three hundred persons who are members of various executive
state boards, each of which feels a considerable degree of
independence within its own limits.
The organization of boards is everywhere much the same :
a chairman, commonly designated by the appointing power,
sometimes elected by the board ; a secretary, in many instances
10
146 State Executives. [§70
the executive officer of the board, and in rural states likely to
be the only salaried member. The boards have records,
offices, clerks, and small allowances for travel and incidental
expenses ; and each has the right of investigation within its
province.
The result is the subdivision of public business into small
blocks, instead of its concentration into a few large departments,
as is the case under the national government ; and the boards act
independently of each other, and often of the governor. Even
if the governor has a removal power, it is difficult, sometimes
impossible, to fix responsibility among a board of several per-
sons. On the other hand, the commonwealth has the service
of a large number of public-spirited citizens, sometimes holding
their places for many years together.
Discontent with the board system has led to some concentra-
tion of the powers of separate small boards. Thus the care of
the insane, the prisoners, the feeble-minded and defective, in
about one third of the states in the Union is subject to the
general supervision of a single board of charities and corrections,
which examines the accounts of all the local boards, and sees
to it that the laws are observed and that humane and intelligent
treatment is secured.
70. State OfScials.
Under the general control of the governor, the heads of the
large departments, and the executive boards, are the various
classes of subordinate officers, principally employees of the
executive departments, supplemented by the much larger body
of employees in state institutions. In general these persons
are appointed by the head of their department : the attorney-
general appoints his subordinates, the state park board the
park laborers, and the state treasurer his clerks. The largest
body of state officials are the teachers in the public universi-
ties and schools. The instructors in state universities are
commonly appointed by a board of regents ; in state normal
§ 7i] Officials. 147
schools, by local boards of trustees or a state board of educa-
tion ; in the public schools, — primary, grammar, and high, —
they are almost invariably appointed by the local authorities.
It is difificult to estimate the number of employees of a state ;
but, leaving out of account municipal and local officials, it
probably averages 1,000 in a state, or nearly 50,000 in all.
Another class of state officials are the local officers, who will
be considered in connection with local government. They are
created by an emanation of state authority, and so far forth
belong to the commonwealth service. Furthermore, in a few
states the local officials, even the mayors, are appointed by the
governor ; and in some cases county officials are appointed by
the legislatures.
State officials frequently hold for a brief specified term ; in
most of the states they are subject to removal for any reason
that seems good to the appointing power. If a new governor
appoints a new set of commissioners, they will almost infallibly
displace a large number of their subordinates ; hence the
tenure of state office of any kind is usually insecure, and most
people prefer the national public service.
71. Givil Service Reform in States.
The purpose of government is presumably efficient public ser-
vice at the least cost and with the least limitation of personal
liberty to that end. The state constitutions lay down principles,
and the legislatures pass statutes ; but the er^d is not served
unless some executive power puts them into operation.
The state executive has two kinds of power, (i) The
carrying out of duties assigned by the constitution or by
statutes : if a legislature enacts that a state capitol shall be
built by a commission appointed by the governor, no capitol
will be built unless the governor appoints the commission.
The commission makes contracts, and the contractors are
compelled to carry out their agreement. (2) Administrative
duties : somebody must regulate the internal relations of officers
148 State Executives. [§ 7»
of government, and find means of securing the performance of
duty. Administrative law in most foreign systems of govern-
ment is recognized as separate from either common law or
constitutional law ; in the United States, administrative relations,
exist and are parts of the system, but are not separated from
the ordinary constitutional law. The most significant part of
administration is what we call the civil service, — namely, the
body of non-military persons who serve the various agencies of
government, national, state, and local.
In colonial times, subordinate executive offices were com-
monly held for a long time. The Revolution displaced most of
the holders of such offices, and thus suggested the system of
political removals. In Pennsylvania and New York, the system
of pohtical proscription was well developed by 1800 : when the
Livingstonians got possession of the state of New York, the
Clintonians were proscribed ; when the Clintonians came back,
the Livingstonians went out. In every state in the Union the
system speedily became rooted, so that now the choice of a
new governor may result in the dismissal of the fireman of a
court-house boiler, or of the woman who washes the steps of
the state capitol. Such frequent changes demorahze the service,
since good conduct and attention to business do not keep a
man in office ; and the bestowal of pubhc office becomes a
subject of bargain and intrigue, till political campaigns are
sometimes carried on for the main purpose of controlling the
patronage.
To meet this difficulty, two states of the Union, New York
and Massachusetts, have adopted an elaborate system of "civil
service reform," by providing that appointments to the minor
posts be made by another method than by political influence
on the heads of offices. The reform method, commonly called
the " merit system," includes two essentials : first, that unin-
telligent and uneducated, persons shall not get in at all ;
secondly, that intelHgent persons who wish to serve the state
shall have an equal chance to seek appointment. Under the
§ 7i] Civil Service Reform. 149
old-fashioned "spoils system," public office was absolutely
closed to adherents of the party out of power, and also to
thousands who voted with the party in power but had not the
personal friendship of the politicians. The only practical sub-
stitute is competitive examination.
The one state in which this reform is established by the state
constitution is New York ; in Massachusetts it depends upon a
strong series of statutes, backed up by public opinion. In both
states examinations are held for different kinds of employment,
as clerkships, inspectors, watchmen, attendants in hospitals, and
the like. The examinations deal not only with book matters,
but with practical points : for instance, a candidate for the
police must stand a test of his physical condition, and of his
quickness and capacity to deal with a new problem. The list
of persons who have successfully taken the examination is ar-
ranged in order of their marks ; and when a vacancy occurs, the
three highest names are certified to the appointing power, who
must choose one of the three. Since the likelihood of a par-
ticular favorite being one of the three is small, the appointing
power, if he knows nothing of the three candidates other than
is shown in their examinations, will usually choose the highest.
After entrance into the service, an appointee remains on proba-
tion for a brief period, before having permanent employment.
For the employment of laborers, where any intelligent, able-
bodied man will answer, there is a registration list, from which
alone appointments shall be made to the state service.
The statutes absolutely forbid anybody from demanding con-
tributions for political purposes, and also forbid an examination
into political or religious opinions. The principal exception to
the provisions of the system in both states is that of veterans of
the Civil War, who have a preference for appointment if they
pass the examinations, and, in Massachusetts, in a few cases
without examination. The merit system does not give the em-
ployee an indefinite right to his office : he is subject to removal
if he is incompetent or insubordinate.
150 State Executives. [§71
The system is not easy to administer ; loopholes are con-
stantly found in it by people who wish appointments by favor
rather than by merit. Large numbers of public servants are
not included within the laws at all ; but it has been conclu-
sively proved that appointments made by this method secure
people who are as likely to be good public servants as those
appointed simply by favor, that the pressure upon appointing
officers to make political appointments and removals is much
relieved ; and that by putting offices out of the control of a
temporary majority the opportunities of political corruption are
reduced. Neither New York nor Massachusetts shows a desire
to return to the old condition of things, and the reform is likely
to spread to other communities. Similar systems in local gov-
ernments and in the national service will be described in their
places.
CHAPTER IX.
STATE COURTS.
72. References.
Bibliography: Cyclop, of Am. Govt. (1914), I, 675; II, 262; III,
397; Channing, Hart, and Turner, Guide (1912), §§ 203, 272; F. A.
Cleveland, Organized Democracy (1913), § 346; A. N. Holcombe, State
Govt. (1916), 485; L. A. Jones, Index to Legal Periodical Literature
(1888-1899); A. B. Hart, Manual (1908), §§ 105, 106; E. McClain,
Constitutional Law (1910), § 137.
State Courts in General: E. McClain, Constitutional Law
(1910), § 139; J. Bryce, Am. Commonwealth (ed. 1910), I, ch. xlii; II,
chs. civ, cv; F. A. Cleveland, Organized Democracy (1913), ch. xxxiii;
W. L. Ransom, Majority Rule and the Judiciary (191 2); A. N. Hol-
combe, State Govt. (igi6), ch. xi; G. E. Roe, Our Judicial Oligarchy
(1912); Cyclop, of Am. Govt. (1914), Arts, on Equity; Equality before
the Law; Executive and Judiciary; Judiciary and Judicial Reform;
State Judiciary; S. E. Baldwin, Am. Judiciary (1905), chs. viii, x, xi;
J. F. Dillon, Municipal Corporations (5th ed., 1911), IV, chs. xxix-
xxxii; Am. Bar Assoc, Reports. — Sources: C. A. Beard, Readings
in Am. Govt. (1909), ch. xxvi; P. S. Reinsch, Readings on Am. State
Govt. (191 1), chs. iii, iv. The organization of state courts is set forth
in treatises on Am. law.
Decisions: J. W. Wallace, Reporters (4th ed., 1882), 561-591; Century
Edition of the American Digest (to 1896), Decennial Edition (1897-1906),
and Key-Numher Series (1907-) (99 vols., to 1917, 1897-).
73. State Judges.
In all civilized governments the courts play the important
part of applying to specific cases the principles of tradition,
written constitutions, and statutes. If, for instance, a statute
provides that a widow shall have a third part of the personal
property of her deceased husband, and the executors refuse to
transfer it to her, the widow may then bring suit against them
for her share ; and the liability to suit prevents their giving
good title to anybody else, besides which they are subject to
damages if they refuse to turn it over to the legal owner. In
declaring what are the legal rights of the parties to the suit, the
court must point out and apply the statutes, constitutions, and
traditions which govern the descent of property. The courts
151
152 State Courts. [§73
have, therefore, more opportunity than the two other depart-
ments of government to bring the law home to the case that
it fits.
The basis of the bench is the bar, — that is, the body of
practising lawyers, from whom have come most of the dis-
tinguished American statesmen, among them Hamilton, Jeffer-
son, Daniel Webster, Henry Clay, and Abraham Lincoln.
Lawyers are in the main conservative people, accustomed to
respect established precedents and to depend upon written and
printed records. Until a few years ago it was easy for a young
man to get enough law to be admitted to the bar ; at present,
many states insist upon rigorous written examinations, intended
to secure at the outset a considerable knowledge of legal
principles.
The constitutional qualifications for state judges are few.
Some states require that a judge shall be learned in the law ;
and in practice judges are always taken from the bar. In some
states judges must be of mature age, and in all states they are
likely to be at least in middle life. Judges are not allowed to
sit on any case in which they have a personal interest.
How are judges designated ? In colonial times the judges in
eleven colonies were appointed by the governor or the crown,
and in two by the legislature ; in only one of the thirteen states
were the judges elected by the people. Gradually, however,
the principle of popular election spread, until now in 32 states
judges are elected by the people, in 5 states by the legislature,
and in 8 only are they appointed by the governor. Upon the
face of it, an elective judiciary is less likely to be learned, wise,
and impartial than an appointive : the most popular man is not
always the wisest jurist; and it is human nature for a judge to
remember that his chance of reelection depends upon the kind
of decisions that he renders. In 1787 the Rhode Island legis-
lature refused to reelect the old bench of judges because it had
made an unpopular decision on paper money. In Illinois, in
''^73j ^ judge was defeated at the end of his term because of
§73] Judges. 153
his opinion upon a question of railroad rates. Since the state
Supreme Court has always more than one judge, some in-
stances have occurred of *' packing " a court in order to pro-
duce a particular decision. . Thus in 1841 Stephen A. Douglas
was put upon the Supreme Court of IlHnois, in order to make a
majority for a decision with regard to the vote of aliens.
Nevertheless, the elective judiciary works better than might
have been expected. In the first place, nominations of judges
are carefully scrutinized, and a ticket otherwise poor is some-
times strengthened by putting on respectable judicial candidates.
Secondly, in some states, especially in New York, the Bar As-
sociation pays a great deal of attention to judicial nominations,
and sometimes formulates a strong protest against persons sup-
posed to be unfit. In the third place, experience on the bench
is very apt to steady those who previously have been political
partisans.
The term of judges, whether appointive or elective, is in
most states too short. In Vermont they are chosen by the
legislature for only two years ; in Pennsylvania the term is
twenty-one years by election ; in only four states — Delaware,
Massachusetts, New Hampshire, and Rhode Island — are
judges appointed for life, or virtually for life. The compensa-
tion of judges is commonly much less than the ordinary profes-
sional income of good lawyers. In Vermont the Supreme
Court judges get salaries of $2,500 ; in New York there are
some salaries of $17,500 a year. In a few states there is a
provision for the retirement, upon a pension, of judges who have
served long and faithfully.
In some states judges can be removed by a joint protest of
the legislature, but the more common method is by impeach-
ment before the state Senate. There have been about forty
such attempts to remove, and a few judges have actually been
removed ; in other cases judges have resigned under impeach-
ment in order to avoid conviction. In New York one judge
was impeached, and another compelled to resign, for violence
154 State Courts. [§ 74
and illegal behavior on the bench ; one was a Tweed Ring man,
the other a creature of James Fisk, Jr., in his attempt to steal
the Erie Railroad. Executive officials, as well as judiciary, may
be impeached or removed ; and one Western governor has
thus been removed from office. With an elective judiciary,
however, the simplest way to get rid of a bad man is to mark
him for defeat at the next election.
74. State Courts.
State judges are organized into courts arranged in a progres-
sive series. In Massachusetts, for instance, there is a system of
police and municipal courts in large cities, with additional
justices and two special justices, each sitting in a separate
place ; in each county there is also a probate court, in charge
of wills and inheritances ; in each county there is a district
court, with a district attorney, and the judges are assigned
according to the needs of the service ; above this is a superior
court, the eighteen judges of which have a salary of $6,500
each ; above this is a supreme judicial court, with seven judges,
at a salary of $8,000 each. The chief justice in each of the
two systems has $500 extra salary. Appeals may in general be
brought from district courts to the superior court, and from the
superior court to the Supreme Court ; they may also be brought
from the probate court to the Supreme Court.
Under this system, small cases usually fall first to a lower
court ; then, if appealed, to the middle jurisdiction, whatever
it may be ; and thence to the highest state court. The result
is unification of decisions throughout the state ; and the Su-
preme Court takes pains, so far as possible, to follow its own
precedents, so that there may be a traditional unity.
The details of organization and administration, the methods
of appeal, the kinds of question which may be brought in origi-
nal suit before a lower and a higher court, the relations of the
general system of state courts to municipal courts, — all these
questions are subject to great variations from state to state.
§ 7s] Organization. 155
Everywhere the principle is the same : that questions of law
shall be transferred from court to court, up to the highest state
court ; and especially that questions of personal rights and other
constitutional privileges shall be eventually settled only by the
highest court.
In addition to the regular courts, there are in most states
justices of the peace, with jurisdiction over small offences and
suits ; these may be considered, perhaps, as a fourth system of
inferior courts. In some states there is a provision for courts
of conciliation, or for tribunals of arbitration ; but these are
rather a means for umpiring disputes than for settling them
under the principles of law. Probate courts act with little for-
mality where there is no opposition ; but in hotly-contested will
cases they may spend days in hearing testimony and arguments,
and make decisions on questions of law, subject to examination
by a higher court.
75. Criminal Law and Jurisprudence.
Perhaps the most obvious purpose of the courts is to try
criminal cases and other offences against the community. Such
cases may be suggested by the injured person or his friends,
but must be tried by a pubhc prosecutor. The usual penalty is
fine or imprisonment, or both ; and in most states the death
penalty for the most aggravated crimes.
Crimes are usually defined by statute, but the laws of the
states are very different in the minuteness and carefulness of
their distinctions ; of course the community with the highest
standards has the most statutory crimes. Where no distinct
statutes have been passed, offences in most states may be pun-
ished under the common law, — that is, the nature of the
offences and the penalty are to be ascertained from the practice
of the courts in England and America.
The municipal and police courts have to do almost solely
with petty crimes, — drunkenness, fighting, destruction of prop-
erty, and the like ; and they have a summary process with very
'56
State Courts. [§75
speedy examination of witnesses, so that a trial often occu-
pies only three or four minutes, and the penalty is at once
fixed and the punishment begins. In most of such cases the
guilt is obvious, or the prisoners are -too ignorant of the laws to
protract the matter ; yet on questions of law appeal practically
always lies from the municipal court to some higher court.
The middle courts of the regular state series commonly take
cognizance of the most serious crimes. Here, as cases may
involve life and death, trials are sometimes long and searching,
and may last two months or more. The highest courts seldom
examine into the facts in criminal cases, but pass on questions
of law which may be appealed to them.
In the system of criminal jurisprudence are deeply imbedded
the principles of indictment and trial by jury. Indictment is
the process of preliminary examination, usually by a grand jury,
of the evidence against a man charged with crime ; if the jury
sees reason to send the case to trial, it " finds a true bill," and
the prosecutor must bring the matter to trial. In justice courts
and municipal courts the jury is usually dispensed with, although
in most states it must be had if the prisoner demands it. The
more serious crimes are always tried by a " petty " jury, the
common rule being that there must be twelve jurors and a
unanimous verdict ; but several of the far Western states allow
a decision by ten, or even fewer, jurors out of the twelve. In
most states a jury trial may be waived if the prisoner so desires.
The jury system is at present the subject of much complaint :
jury duty is tedious and habitually avoided by busy men ; the
professional juryman is unsafe ; and in many kinds of cases,
especially those having to do with liquor-selling and strikes,
twelve men cannot be found who will unite in a verdict of
guilty.
In all important cases the state is represented by a prose-
cuting officer, whose duty it is (i) to secure evidence to
justify a warrant for the arrest of a suspected man ; (2) to
present evidence to a grand jury which will induce it to bring
§ 75] Criminal Law. 157
in an indictment; (3) to produce witnesses and to marshal
the evidence at the actual trial. Everywhere in America pris-
oners are allowed to employ counsel, and if they have none,
the court will make assignments in serious cases. The court
designated a well-known lawyer to appear in behalf of the
assassin of President McKinley in 1901.
The ordinary punishment for aggravated crimes in the United
States is imprisonment, for terms varying from one hour to a
life sentence. All sentences for terms of years are subject to a
deduction of about one fifth for good conduct while in prison ;
and the average of long sentences is much brought down by
the. frequent use of the pardoning power, so that prisoners
under life sentence are said actually to average about ten years
in prison.
The former cruel and brutal punishments for crimes have
officially disappeared entirely in the United States : tongue-
piercing, ear-slitting, pillorying, branding, and the hke are no
longer ordered by the courts, although in Delaware public
whipping is still a penalty. There is, however, a lamentable
practice, amounting almost to a system, of so-called " lynch
law," which means that people (in the Southern states usually,
though not invariably, negroes) shall be seized by a mob and, if
suspected of aggravated crimes — including rape, murder, arson,
and shooting with intent to kill — be put to death by shooting
or hanging, or in many instances by burning at the stake or by
other tortures. It need hardly be said that lynch law is neither
law nor justice, since it is executed in a period of great excite-
ment, without any proper process for ascertaining whether the
person charged is guilty ; and the fierce and vindictive punish-
ments not only tend to brutalize those who take part in them
and the community which allows them, but do not seem to pre-
vent the crimes.
158 State Courts. [§76
76. Civil Lavr and Jurisprudence.
Much greater in number than the criminal proceedings are
the civil suits of every kind. In general, the jurisdiction of the
courts extends to all subjects regulated by legislative enact-
ments ; but in many instances, where there is no positive
statute, the court takes the principles of common law. In all
the states but two or three there is a system called " equity,"
which is a special kind of legal process, originally intended to
furnish a speedy remedy where the common law was round-
about or inadequate. The difference between law and equity is
not so much in legal principles as in the way in which they are
enforced : courts of law enforce their judgment against the
property of the defendant; courts of equity against his person,
by commanding him to do or refrain from doing a certain thing.
The penalty of his disobedience is punishment for contempt of
court. Some states have special chancery (equity) courts ; in
others, equity proceedings are held by the regular courts
The prime principle with regard to civil jurisdiction is that
the court must have a case before it. In a few states the
legislative or executive officers have the right to ask the Supreme
Court for an opinion upon a proposed measure ; but, without
some such constitutional requirement, judges refuse to give
decisions in cases which are not argued before them so that
both sides may be represented.
The courts attempt to follow previous decisions involving the
same principles : thus the lower Kentucky courts will try to
follow the decisions of the Supreme Court of Kentucky, and
the Supreme Court of that state will usually follow its previous
decisions. When no decisions can be found exactly in point,
lawyers and courts refer to decisions of other states, or of the
United States, or of England. Hence the skilled and suc-
cessful lawyer is he who, by his knowledge of decisions already
rendered, can form a probable surmise as to the result of a given
case ; and he will dissuade clients from entering suits not likely
to be sustained.
§ 76] Civil Law. 159
The subjects upon which suits may be brought are innumerable.
Perhaps the most important branch of the law has to do with
real property, — the holding of land, and the transfer of title by
sale, inheritance, or will. Another source of litigation is the
collection of debts, either to ascertain the amount justly due or
to attach the debtor's property if he declines to pay. The great
development of corporations of every kind, especially railroads,
has led to an immense body of decisions as to what constitutes
membership in a corporation, what rights corporations have to
acquire and dispose of property, and especially how far cor-
porations are acting within or beyond the charter which gives
them existence. Another great branch of law concerns " torts,"
or injuries and damages. Perhaps the most important function
of the courts is to decide on the powers and relations of officers
of state and municipal governments.
The methods of civil court business are much hke those in
criminal law : jury trials are very common on questions of
property, and especially on questions of personal damage ; both
sides are usually represented by counsel, although any man has
the right to appear in his own behalf in a suit. Testimony is
introduced, and there is a vast accumulation of precedent and
practice upon the question of what is and what is not proper
evidence ; for example, hearsay is commonlj r»,ot legal evidence,
— that is, A may tell what he saw, but not what B told him that
B saw. Most evidence is given in open court, with opportunity
for cross-examination ; but " depositions " — that is, sworn testi-
mony taken down in writing — are admitted unde/' some cir-
cumstances. Each side has the right to secure a " subpoena "
— that is, a legal summons to appear and give testinaony —
and witnesses may be compelled to appear and testify. Wives
are not obliged, in most cases not allowed, to testify agarwst
their husbands ; and lawyers, physicians, and ministers are
usually exempt from testifying on matters intrusted to them in
professional confidence. When the testimony is all in, the
lawyer on each side argues the case ; and then, if it is a j^ry
1 60 State Courts. [§ 76
trial, the court sums up the evidence in a " charge," in which
it informs the jury what the law is and summarizes the evidence.
In some states the jury insists also on deciding for itself what
the law is.
When a suit is once decided, it is very common forthwith to
move for a second trial before the same court, on the ground of
informalities ; and in that case the whole process must be gone
through a second time, the same witnesses summoned, often at
great expense to the parties. If any considerable amount of
property is involved, or if important principles come in, it is
very common to carry the case up to the next higher court in
one of two methods. One way is by appeal, under which the
whole case is tried again, the evidence heard, and the law laid
down by the upper court, with a jury if demanded. The much
more common method is by writ of error ; that is, one of the
parties sets forth that the judge in the lower court has made
mistakes in his statement of the law, and the upper court is
therefore asked, not to go through the whole case again, but
on the basis of the errors to notify the judge of the lower court
that he must reverse his decision. In such an appeal, the
question comes first on the particular points claimed to be
erroneous ; but the upper court may, and often does, go into
the whole case.
Important suits are likely to be appealed the second time from
the middle courts to the state Supreme Court, usually on writ
of error; and the judgment of this court is final, unless cause
can be found for transferring the suit to the federal courts, where
again it may go through two stages. It is therefore perfectly
possible that a man whose property is wrongfully claimed by
another will be compelled to fight his case through six different
suits before the question can be finally adjusted. In such long
protracted litigation the richer party is most likely to keep up
the contest.
The courts are not entirely confined to the decision of con-
tested cases ; they also issue writs, which are intended to be
§77] Control of Executive. i6i
simply preliminary to a suit. Such are the writs of " habeas
corpus," which have been described above ; the decision takes
place only after the person responsible for the confinement has
had an opportunity to explain. The writ of " error " just de-
scribed is not technically a decision, but a direction to a lower
court to make a decision. The writ of " quo warranto " is a
means of compelling a corporation to show whether it is acting
within its charter. The writ of " certiorari " directs a lower
court to send up to a superior court the record of a proceeding.
The writ of " mandamus " is directed to some corporation or
public official, instructing him to perform an omitted duty.
The writ of " injunction," now perhaps the most frequently
used, is a decree rendered by a court of equity commanding
the defendant to do, or refrain from doing, a certain^ thing, —
for instance, not to put up a building which is claimed to be on
another's land, till the title can be settled. In the former case
it is called a mandatory injunction. The injunction may be
temporary or permanent. A temporary injunction is issued
in cases where the acts of the defendant are causing irreparable
damage. The usual practice is for the court to call upon the
defendant to show cause why the temporary injunction should
not issue. If he fails to do so the court will issue the tempo-
rary injunction. In the final hearing as to whether the injunc-
tion shall be made permanent, full opportunity is given to both
sides to be heard.
77. Judicial Control of Executive Officials.
In most continental governments — as, for example, France
— the principle called " separation of powers " means that legis-
lative and executive departments are separated from each other :
what the French Chamber and Senate unite in declaring a
vitatute, must be obeyed by everybody ; if the act of an execu-
tive official is contested, a court composed practically of his
official superiors declares whether he is in the right.
The American idea of " separation of powers " is absolutely
II
i62 State Courts. [§77
different. Our courts may not only decide upon their own
jurisdiction and rights, but may also act as administrative
courts, and even decide upon the vaUdity of statutes : the final
authority upon the legality of many legislative and executive acts
is not in the highest executive or legislative bodies, but in the
courts.
The state governor and other officers have not sufficient
authority to appoint and remove officials, and find it hard to
compel minor officials to do their duties. This necessary service
is performed, although imperfectly, by the state courts ; and to
this end they freely use their power of issuing writs. For in-
stance, quo warranto is invoked to compel an official to vacate
an office to a duly-designated successor ; or mandamus to
force him to pay legal salaries ; mandamus is rarely issued
against the governor, but constantly issued against local offi-
cials, mayors, city treasurers, auditors, comptrollers, and the
like ; and there has been a recent instance in New York City
where mandamus was issued to compel members of the city
council to meet and vote bonds for a legal debt. The courts
also frequently issue injunctions against officials, to prevent
their issuing documents and thus creating vested rights before
the questions at issue can be reached in regular suit which will
test the questions of law involved.
The result of the whole system is that the courts, and not the
superior state executive officials, find means to compel a pub-
lic officer to do his duty. The penalty of a neglect is contempt
of court, — that is, imprisonment at the discretion of the court
without further trial, — and the fear of this penalty is almost
always sufficient ; or criminal suit may be brought for malfeasance
in office.
Another frequent method of judicial control of the executive
is through ordinary suits brought by individuals. In France, if
a suit of this kind arises between an individual and a function-
ary, it is tried by a special administrative court, presumably in
sympathy with the official. In the United States such a case is
§ 7^] Declaring Statutes Void. 163
habitually tried as a question of private law, without any refer-
ence to the public station of one of the parties. For instance,
a tax collector levies an illegal tax on a building ; the owner
refuses to pay, whereupon the collector seizes the building and
prepares to sell it to satisfy the tax ; suit is then brought by one
side or the other for the possession of the property ; and in de-
ciding who is legally in possession, the courts must incident-
ally hold that the tax either is or is not valid. Such cases
occur by thousands every year, and enable the courts to define
very carefully the actual powers and responsibilities of public
office.
78. Declaring Statutes Void.
The English theory of government, soon transferred to the
colonies, was that a law once made controls everybody, includ-
ing the crown and the courts : the attempt of James II to set
up a dispensing power, and to relieve certain persons from acts
of Parliament, brought about the Revolution of 1688. In a few
recorded cases, English courts declined to apply an act of Par-
liament because it was contrary to natural justice ; but English
courts for at least two centuries have accepted the latest act of
Parliament as superseding all previous conflicting acts. In the
colonies, statutes were in some cases set aside by the colonial
courts because not in accordance with justice ; but it was only
when the system of written constitutions was introduced that
the necessity for decisions on the validity of statutes became
evident.
Who is to decide whether the law does or does not contravene
the constitution? If the legislature has this power it will of
course hold its own law good, and the will of the legislature
will override the restrictions of the constitution. The governor
and the other executive authorities must decide for themselves
whenever the question arises ; but such decisions are likely to
affect only those laws involving the exercise of executive power.
The state courts are obliged to set one kind of law against
another, because one sort may be invoked by one party, and
164 State Courts. [§78
the other by the other party. The issue of the power of the
courts was first distinctly raised in 1780, in the New Jersey case
of Holmes v. Walton, when it was held that an act of the legis-
lature was contrary to the constitution of the state, and hence
was no law ; the legislature speedily changed the law to agree
with this decision. When the federal constitution of 1787 was
framed, providing for direct relations with individuals and fur-
nished with a strong supreme court, a new feature was intro-
duced into this question, inasmuch as the federal constitution,
and acts and treaties made in pursuance thereof, were to be
the supreme law of the state and binding upon the state courts.
The intention of this clause was to authorize and compel a
state judge to decide whether a state act was in accordance
with the federal constitution ; and the history of the convention
shows clearly that it was intended that the federal courts should
have the power to nullify state statutes that were not in accord-
ance with the federal constitution.
I'he convention did not commit itself clearly on the question
whether national courts could also nullify national statutes ; but
in 1803, in the decision of Marbury v. Madison, it was held
that part of an act of Congress was unconstitutional, and there-
fore not binding; and in the case of Fletcher v. Feck, in 1810,
a state statute was for the first time distinctly held void by the
United States Supreme Court.
This principle was slowly adopted in the states with reference
to their own laws. In most state constitutions it does not
appear as a distinct right conferred by the constitution; it
simply is tacitly held to be necessary, because in deciding
specific cases the courts must take cognizance of the laws that
apply, and if two conflicting laws are invoked it must decide
vvhich is valid. If one law appears in a constitution amendable
only by a special process, then that law must prevail against
any subsequent contrary statute.
This power to review legislation is one of the things which
give state courts their highest dignity and importance, and
§ 78] Declaring Statutes Void. 165
make state judges the guardians of personal as well as of prop-
erty rights. Many courts exercise this great power with hesi-
tancy ; if possible, they decide the case without raising the
issue, ot they attempt to put such a construction on the statute
that it will be agreeable to the constitution. Nevertheless,
every year scores of state laws are disallowed and set aside.
Consciously or unconsciously, the power is used to prevent
uncommon or new kinds of law : for instance, the elaborate
labor legislation throughout the country has been much toned
down by court decisions disallowing or modifying provisions of
statutes. It is impossible entirely to separate personal, or even
selfish, methods from the legal duty of standing by the great
and fundamental law ; the practice of reviewing statutes, how-
ever, leads to a very strong respect for the constitution. If the
community is sufficiently interested, an unrighteous decision can
be set aside by later amendment to the constitution, which the
courts must then acknowledge and apply.
We do not always realize that courts have as much right to
declare acts of executive officials void as they have to pass on
statutes : the processes of review, mandamus, injunction, and
the like, which have been discussed already, are often simply a
declaration of the court that what the executive has tried to do
is not in accordance with the constitution. In form the decision
of a court on constitutional or other questions binds only the
parties to the immediately pending suit, but it is notice of the
law to all others : if a mayor makes a contract for a bridge in a
way forbidden by the constitution, and the courts hold that
contract void, the contractor cannot get his money ; if another
mayor attempts to make a second contract of the same kind,
the contractor from the beginning has no legal reason to expect
to get his money, and hence will probably hold off. In this
way, decisions which directly involve small amounts or slight
rights become landmarks of the constitutional power of the
state governments. If a poor woman, who is put off a street
car because the conductor will not recognize her transfer, brings
I 66 State Courts. [§ 78
suit and gets a judgment against the company, it may lead to
a reform of the whole transfer system for the benefit of thou-
sands of people.
On the whole, the system of declaring statutes and executive
acts void works well ; but it throws immense responsibility upon
the judges, who after all are human beings. The fact that they
have such vast, and in many cases such final, power is simply
another argument for securing judges by appointment, for giving
them long terms and good salaries, so that men of the highest
integrity may be attracted to and may remain upon the bench.
Part IV.
Local Government in Action.
CHAPTER X.
RURAL UNITS OF GOVERNMENT.
79. References.
Bibliography: G. E. Howard, Local Constitutional Hist. (1889), I,
475-498; Channing, Hart, and Turner, Guide (1912), §203; Cyclop, of
Am. Govt. (1914), I, 497; II, 365; III, 543; A. B. Hart, Manual
(1908), §§ 107, 108, 209, 290; J. A. Fairlie, Local Government (1906),
273-279.
General Principles of Local Government: J. A. Fairlie, Local
Govt. (1906), chs. i-iii; H. C. Lodge, Frontier Town (1906), Nos. i, 9;
E. McQuillin, Municipal Corporations (1911-1913), I, §§ 62-71; A. B.
Hart, National Ideals (1907), ch. vii; J. F. Dillon, Municipal Corpo-
rations (sth ed., 191 1); F. J. Goodnow, Administrative Law (1905),
bk. iii, ch. ii; J. K. Hosmer, Anglo-Saxon Freedom (1890), ch. xvii;
B. A. Hinsdale, Am. Govt. (4th ed., 1917), ch. Iv; T. M. Cooley, Con-
stitutional Law (1898), ch. xvii.
Town and County Governments: Monographs on local govern-
ment, in Johns Hopkins University, Studies, I, Nos. 3, 5, 12 (1883)
(111., Pa., Mich., Md., S. C), III, Nos. 2-3, 5-7 (1885) (Va., Md.),
IV, Nos. I, 2, 4 (1886) (N. Y., R. I., Pa.), VIII, No. 3 (1890) (Wis.),
XI, No. 11-12 (1893) (South and Southwest); E. Channing, Town and
County Government (Ibid., II, No. 10, 1884); F. A. Cleveland, Organized
Democracy (1913), chs. xiii, xxv; Cyclop, of Am. Govt. (1914), Arts, on
County Government; Local Government and the States; Local Self-
government; Town-County System; Town Meetings; Towns and
Townships; F. J. Goodnow, Administrative Law (1905);- bk. iii, ch.
iii; J. A. Fairlie, Local Govt. (1906), chs. iv-xvi; J. Bryce, American
Commonwealth (ed. 1910), I, chs. xlviii, xlix; A. De Tocqueville, Democ-
167
1 68 Rural Governments. [§ 80
racy in America (1835-1840), I, ch. v. — Sources: C. A. Beard, Readings
in Am. Govt. 1909), ch. xxix; annual reports of county commissioners,
supervisors, selectmen, towns, etc.; National Municipal Review (quar-
terly since 191 2).
80. Creation and Functions of Rural Governments.
Within each state the people determine how they will exercise
the functions not reserved by the federal constitution, and every-
where they choose to commit large responsibility to the local
units. Sometimes they act through the state constitutions ; but
details are to a large degree determined by the legislatures, and
therefore the powers and functions of the local governments are
constantly subject to change.
To prevent too rapid alteration, some states have a constitu-
tional provision that no special laws shall be passed for counties
or towns or cities ; but these provisions are easily avoided by
passing a law for classes of communities, — say, counties of
less than 50,000 inhabitants and more than 49,000, or cities
of over 30,000 people, there being only one such county or
city. In Ohio, in 1902, the whole machinery of city gov-
ernments was upset by a decision that such classification was
unconstitutional.
The oldest and most frequent type of local government is
the ordinary rural government, of which there are three vari-
ties : (i) small special divisions, as school and fire districts,
boroughs, and villages ; (2) towns or townships ; (3) counties.
The boundaries of such jurisdictions are in many states subject
to alteration by the legislature, without a vote of the inhabi-
tants. The type of government is partly set by constitution
or statute, and is partly so far traditional that sweeping
changes would be resisted.
The most noticeable feature of rural governments is that there
is no exact separation of powers, such as exists in state and
national governments : town-meetings are little legislatures, yet
exercise many executive functions ; county executive boards
make by-laws and lay taxes. The functions which ordinarily
§ 8i] Minor Units. 169
fall to such governments are schools, roads, bridges, the poor,
fire protection, water supply, and in some communities electric
lighting, pubhc libraries, and the hke ; and the assessment and
collection of taxes for such local purposes. They have power
also to make local ordinances for public order, — as, for in-
stance, against riding bicycles on the sidewalk. It will be
seen later that such functions are much more important in
cities, which have to provide for a complicated and numerous
population.
81. School Districts, Villages, and Boroughs.
>The smallest unit of local government is the school district,
which in many states has authority to raise money, to lay taxes
for the carrying-on of district schools, and even to issue bonds
for the building of schoolhouses. A pubhc meeting of the
voters is held ; and in New England there is a clerk, a treas-
urer, a moderator, and a board of district-school directors.
While the immediate control of the school district gives ex-
perience and confidence to the people, modern education
requires grouping into larger areas, and demands trained
teachers such as can hardly be secured by the district system.
Another very common unit is the village, which is an incor-
porated body like a city. In New York, the village government
is a body of trustees with a president, and there is a village
treasurer, a clerk, a collector, and a road commissioner. A
similar unit is the borough, found in several states ; it has
existed in New York and Pennsylvania ever since colonial
times, and therefore ranks with the town and the county as
one of the forms of traditional government. Usually the
borough has a population of two or three thousand ; but bor-
ough government is rather cumbrous : in Pennsylvania, for
instance, it includes a school board, a board of health, and a
poor board, besides burgess or mayor, treasurer, secretary,
chief of police, road commissioner, tax collector, and high
constable. The borough of Jacksonville, Pennsylvania, has
had to provide these officers out of 82 inhabitants.
1 JO Rural Governments. [§ 82
Both villages and boroughs are usually withdrawn from the
town or township in which their area is situated, and have
direct relations with the county and the state. Probably the
best form of borough government is that of a single elective
council. Whenever a village or a borough arrives at a suffi-
cient population, it is usually allowed to become a city. In
Maine and other states are various irregular local units not
having a definite organization, called plantations, districts,
and gores.
82. The Town System.
True rural government is best expressed by one of the three
most prevalent systems, — the town, the county, or a combina-
tion of town and county. Of these the town, or township, is
perhaps the most interesting.
The New England town has a great tradition behind it,
inasmuch as in Plymouth, Massachusetts, Connecticut, New
Haven, Rhode Island, and New Hampshire, towns were or-
ganized even before the colonial governments, although as
soon as the latter were founded they at once asserted their
right to prescribe duties and grant privileges to the towns.
For a long time supposed to be a creation of the colonists, it
is now established that the New England town was a reorgani-
zation of that type of English parish which had a general
parish-meeting of rate-payers. Many of the present New
England towns are simply old colonial towns continued ; many
more,' however, have been subdivided and set off at various
times by the state legislatures. In population they vary from
Cambridge, New Hampshire, with 17 people, to Warwick,
Rhode Island, with 21,000 people Some of them are remote
little agricultural communities ; others are bustling and prosper-
ous manufacturing places. Town government in New England
includes three elements, — town-meeting, board of selectmen
(pronounced selectman), and n^inor town officers.
The town-meeting comes at least once a year, and usually,
by adjournment or special meetings, much oftener. It must
§ 82] Town System. 171
be called by a warrant printed or posted beforehand, specify-
ing the business ; and no matters can legally be introduced
which do not appear on that schedule.
For the accommodation of the town-meeting there is always a
town hall, sometimes built at the cross- roads away from a village.
To direct the meeting, a moderator is chosen; in many towns
the same man serves year after year in that important office.
The next officer is the clerk, commonly reelected from year to
year. The thing most characteristic of a town-meeting is the
lively and educating debate; for attendants on town-meeting
from year to year become skilled in parliamentary law, and
effective in sharp, quick argument on their feet. Children and
others than voters are allowed to be present as spectators.
In every such assembly, four or five men ordinarily do half
the talking ; but anybody has a right to make suggestions or
propose amendments, and occasionally even a non-voter is
allowed to make a statement ; and the debate is often very
effective.
The development of manufacturing in New England has
pulled town government awry. A manufacturing section may
spring up on a water-power in one corner of the town ; and the
interests of the factory owners and operatives ^e different from
those of the farmers. Hence arise constant squabbles in town-
meetings, until the new community gets itself set off as a sepa-
rate town. The farmers naturally resent this attempt to remove
a taxable property out of their jurisdiction, and also the efforts
of summer residents to secure a town of their own ; but, under
the universal American principle that a man can have but one
vote, summer residents usually have no voice in the town-
meeting of their preferred abode, and accept the taxes imposed
by the vote of their neighbors.
In very early times it was found that business had to be done
in the intervals between town-meetings ; and hence grew up
the system of "townsmen," now usually called selectmen or
trustees, — an executive board of three to nine members, chosen
172 Rural Governments. [§82
for a year in town-meeting ; it holds frequent sessions, and has
authority to make contracts and payments under votes of the
town-meeting. For school purposes, a separate committee or
board is provided.
Most town-meetings choose a host of minor officers, some of
them holding queer titles. The town of Middlefield, with 82
voters, in 1895 elected one clerk, three selectmen, one auditor,
one treasurer, one collector, two constables, one road commis-
sioner, three school committeemen, one superintendent of
schools, three trustees of the public library, and one town
librarian, — a total of 18 town officers, leaving 64 unlucky
voters without a single office.
The town and township also exist in New York and Pennsyl-
vania, but there the main functions of government are divided
with the county. In most of the Western states there is also
some form of town or township government, but the unit of
those states is almost invariably a " public land township," —
that is, an area of six miles square, not having the historical
coherence of the old New England towns. In the South, towns
were made units in some of the reconstructed states, but all
of them have again been abandoned ; and the town-meeting
has never takeij, root, perhaps because the population is so
scattered that it is difficult for voters to get together.
One of the notable things about town government is that
the state legislatures constantly throw new duties upon town
officers : they have to assess and collect state taxes ; they
have to carry out state laws for the prevention of contagious
diseases ; they must keep records of births, deaths, and mar-
riages ; they must apply election laws ; they have a hundred
other important functions. The state follows them up with
threats and fines for neglect of duty ; in some states the state
executive may vacate town offices for neglect ; and everywhere
the state courts grant mandamus and other writs to compel
town officers to do their duty.
The principal functions of the town are performed in town-
§82] Town Meeting. 173
meeting, and may conveniently be classified as follows : — ■
(i) The election of town officers for the next year, a vote
commonly taken by ballot ; formerly representatives to the state
legislature were also chosen in town-meeting, but now it is cus-
tomary that they should be voted for at the regular state election
by ballot. (2) The control of town officers, and the discussion
of their oral or printed reports, — often the subject of animated
criticism. (3) The general legislative function is the making
of by-laws, — that is, local ordinances, such as forbidding the
destruction of town property or the running of animals at large.
(4) An especially important group of duties is the financial, —
as the making of appropriations for town purposes, especially
schools, and the laying of taxes for those purposes; this in-
cludes also the opening and maintenance of highways, a duty
poorly performed. (5) All town-meetings exercise a variety of
social functions, including many petty matters : for instance, ■
the Worcester town-meeting in 1779 voted not to read the
Psalms line by line before singing them ; and one town-meeting
voted to indemnify an unhappy person who had unwittingly
received a counterfeit bill. The question of the sale of liquor
is one of those most frequently brought up at town-meeting,
and the prosecution of liquor-sellers is often authorized.
There was a time when the town-meetings had also large
political functions : they instructed their representatives upon
matters of great consequence, and they frequently passed votes
on pending political questions, as, for example, the vote of the
Boston town-meeting in 1729 : —
"That you Continue to Pay a due Regard to His Excellency Our
Governor, and that you Endeavor that He may have an Honorable
Support, But we desire at the Same time That you use your utmost
Endeavor That the Honorable House of Representatives may not
be by any means Prevailed upon or brought into the Fixing a
Certain Sallary for any Certain time. And if your Pay Should be
diverted from you Depend on all the Justice Imaginable from this
town whom you Represent."
174 Rural Governments. [§ 83
The variety of the town functions may be illustrated by an
abstract of the warrant of the town of Brunswick, Maine, in
1899. It included election of officers and reports of former
officers ; appropriations of money for schools, highways, fire
department, and contingent expenses (lights, abatement of
taxes, Memorial Day, public library, street sprinkling) ; dis-
position of real estate ; by-laws, public buildings, sale of liquor,
numbering of dwellings, bicycle paths, electric lights, purchase
of coal, the town farm, the town cemetery, a larger drinking-
tub to the fountain, and the town hearse.
83. The County System.
The rival system of rural government is that of the county.
At the time of colonization, county assemblies had entirely
ceased in England, and the shire government was the Court of
Quarter Sessions, a board of magistrates appointed by the crown
for each county. Such a magistrate was Justice Shallow in
Merry Wives of Windsor : "Justice of peace and 'Coram.'
— Ay . . . and Custalorum." In the New World a similar
organization was founded in colonial times, including an ap-
pointive county board. Since the Revolution, elective boards
have been usual except in North Carolina, where the legislature
appoints the county officers.
The number of counties varies from 3 in Delaware, to 243
in Texas ; the most populous county is New York, with 2,050,-
000 inhabitants. The average area of a county, except in the
thinly-populated Northwestern states, is from 500 to 800 square
miles; and the average population outside of the cities is some-
where from 10,000 to 20,000. Of course a popular assembly
is impossible for such large districts. In place of it, is set
up the board of elective commissioners, the county treasurer,
school superintendent, sheriff, registrar of deeds, and many
other officers ; in the so-called " compromise " states there is
also a representative county board.
The two distinct types of county government are the New
SAN BERNARDINO
COUNTY BUILDINGS
§83] County System. ly^
England and the Southern. In New England the county is
simply a judicial and military subdivision : the court-houses, jails,
registries of deeds, and in some cases the poor-houses are county
buildings ; but the counties have very little control over roads,
and almost none over the conduct of individuals. Upon the
whole, the county gradually gains ground in New England as
an administrative unit, although it is hard to keep it from
extravagance.
In the South the county has been since colonial times almost
the sole unit of local government. In Louisiana the so-called
" parishes " are really counties. The principal ofificers are a
board of county commissioners, and financial officers — also
superintendents of roads and of education; there are various
judicial officers, including a public prosecuting attorney, who in
Virginia is popularly called "Commonwealth." In all county
systems the most important and best paid office is that of
sheriff. In large city-counties like Cincinnati, the sheriflf enjoys
fees which may amount to many thousands a year : the sheriff
of Erie County (Buffalo), New York, rose to be governor of
his state and president of the United States.
Practically all the functions of Southern local governments
are vested in some of these county officers, — the schools, the
poor, roads, bridges, assessment and collection of taxes, and
local legislation for the health and morals of the people. The
people seem to feel no need of smaller local governments, except
where there are enough to make a village or a borough ; and
even in those most of the local government is carried on by
county officers. The former parishes in Virginia and elsewhere
have ceased to be governmental units.
One advantage of the county system is that it tends to bring
about one general kind of local government, for it is un-
common for a state to have different types of government in
different counties ; and it is therefore easy to fix responsibility
and to apply the control of the state to the performance of
local duties. Throughout the South and West, there is an elab-
1 76 Rural Governments. [§ 84
orate system by which counties are allowed to choose whether
they will put into effect certain laws. Thus, counties may or
may not tax themselves for railroads or other purposes, accord-
ing as the legislature may direct ; in Kentucky some counties
pass on the sale of liquor within their limits, many of them pro-
hibiting it even in the regions of " moonshine " whiskey.
The great advantage of the town over the county is that it
has the machinery for an intelligent man-to-man discussion of
public questions, and for their settlement by the immediate vote
of an assembly. Nevertheless, in the Southern states there is
always plenty of discussion of public issues wherever people
congregate ; and public opinion is reflected through the county
commissioners.
84. Mixed County-Precinct and To'wnship-County
Systems.
Besides the town and the county government, there are two
widely-diffused mixed systems, conveniently called by Professor
Howard the "county-precinct " and '' township-county." The
first of these is but little removed from the county plan, the
precincts being only electoral units or districts for the election
of justices of the peace and constables. It generally precedes
the township-county system, and is often a stage in the develop-
ment of the latter. The so-called " townships " in California
are of this type.
Although the second system has been developed chiefly in
the Mississippi Valley, and is the result of sectional compro-
mise, the substance of the organization existed in colonial
Pennsylvania, and its early introduction in the Northwest Terri-
tory was largely due to the influence of that state. County
government began in the Northwest Territory in 1788, and in
1790 provision was made for the civil life of the "congres-
sional" townships, which in 1802 were given a more popular
organization.
The system shows several types. In the simplest, such as
§ 84] Mixed Systems. 1 77
was adopted in the Northwest Territory, and now prevails in
Pennsylvania, Ohio, Kansas, and elsewhere, there is no town-
meeting, and the towns are not represented on the board of
county commissioners ; they have, however, usually some power
of self-taxation, and a body of elected officers, including one or
more supervisors, nearly coinciding with the New England se-
lectmen, a clerk, treasurer, assessor, and constables. Wherever
New England people have settled in large numbers, as in
Michigan and Northern IHinois, town-meetings exist and go
beyond the election of officers to the management of local
affairs. The relation of these townships to the county are of
two kinds. In Minnesota they have no representation in the
county board of commissioners, the commissioners being elected
at large, as in the first type and county system, though some-
times they are designated from particular districts ; but in
Michigan, Illinois, Wisconsin, and Nebraska — the Western
states with the best local organization — the New York plan of
a county board composed of the supervisors of the component
townships is followed, a well-ordered executive legislature in
which all parts of the county have membership.
In all three of these types the towns are marked off by the
county officials, and the town governments are subordinate to
the county organization. The degree of dependence varies in
the different types and in the different states, being greatest
in the first form ; but in all of them the county is the judicial
unit, and has general supervision over the administration of the
townships ; it levies taxes ; the county school-superintendent
is one of the most important local officers.
The county or county-precinct system, being simpler, more
symmetrical, more easily managed, and therefore better adapted
to thinly settled districts, was generally established first in the
new settlements, especially wherever emigrants from the South-
ern states have been predominant ; but a demand for town
government was made by those who had emigrated from the
states where it prevailed^ In Michigan town organization pre-
178 Rural Governments. [§85
ceded county organization, but in other states, where the set-
tlers were not so homogeneous, the struggle has resulted in a
compromise by which the counties are allowed to choose be-
tween the county system and the mixed system. In 1847 such
a choice was first offered in Illinois, and now out of 102 coun-
ties about 90 have changed to the township-county system.
The county option also exists in Missouri, Nebraska, and North
Dakota. In Minnesota the option lies with the townships.
85. Improvement of Rural Government.
The foregoing sketch omits details which would show how
varied are the possible combinations of rural government, —
from Maine, in which the towns have nearly all the power, to
Texas, in which there are practically no towns at all. On the
whole, the town-meeting is losing its hold upon New England,
except in exclusively agricultural towns ; for it becomes clumsy
as soon as the number of voters gets to be more than three
or four hundred. The most remarkable New England towns
are Brookline, with a population of 20,000 and a valuation of
^91,000,000, which still retains its town-meeting undisturbed;
and New Haven, which has an ancient town and town-meeting
right in the middle of the city.
The most successful rural government is perhaps the town-
ship-county system of New York and various Northwestern
states, because it emphasizes the small subdivisions in which
people can know and meet each other, and also provides for a
representative county assembly. The main objection is that
there are two sets of officers to do one job, and that the large
board of county commissioners is unwieldy. The county-pre-
cinct system is simpler, because most of the governing is done
by a small board of county officers ; but the commissioners are
not so easily watched and checked.
The main improvement necessary in rural government is that
the authorities of both towns and counties shall become more
accustomed to appoint experts for special services. For in-
MIDDLESEX COUNTY CAMBRIDGE, MASS.
COUNTY BUILDINGS
§85] Improvement. 179
stance, road-making is an art for vvliich a man ought to be spe-
cially prepared ; and a road master or road commissioner ought
to be a permanent officer, having the details of the service in his
hands. Since roads are of consequence beyond the borders of
the town, they ought everywhere to be a county affair. A cor-
responding reform will be the provision of a proper state agency
for supervising the local governments and keeping them up to
their duties to the states. The accentuation of town govern-
ment is important because it makes people take an interest in
their own public officers. On the other hand, the townships
are units too small for some of their usual duties, particularly
the management of schools : the good county systems have
county superintendents, who visit the schools and keep them
up to the mark ; but there is only one state in the Union in
which the towns are obliged to provide expert superintendents.
Upon the whole, rural government in the United States goes
■well ; through the opportunity of choosing out of several es-
tablished systems, people get what they think is best adapted to
them. The county system breaks down wherever it is appHed
in counties having large cities ; but the rural counties upon the
whole have as good a government as the people desire. In
some states, notably Massachusetts, county commissioners are
habitually reelected, and often serve for many years ; in the
Western states it is more common to change them frequently.
In some states, the county officers have gone so far as to form
an association to push their interests ; and in some cases the
frequently-reelected commissioners have lost a sense of respon-
sibility to the people who chose them.
CHAPTER XI.
CITY GOVERNMENTS.
86. References.
Bibliography: W. B. Munro, Bihl. of Municipal Govt. (1915); C. D.
Wright, Practical Sociology (1909), §§ 9, 66, 72; C. A. Beard, Am. City
Govt. (1912), App. iii; W. B. Munro, Govt, of Am. Cities (1916), ch.
bibliographies; Cyclop, of Am. Govt. (1914), I, 249, 276, 350, 387; II,
329, 415, 477, 483, 486, 544; A. B. Hart, Manual (1908), §§ 107, 108,
211, 224; Charming, Hart, and Turner, Guide, §§ 203, 272. See also
the bibliographies in National Municipal Review and the treatises on
municipal government.
Principles of City Government: B. A. Hinsdale, Am. Govt.
(4th ed., 191 7), 405-407; J. Bryce, Am. Commonwealth (ed. 1910), I,
chs. 1-lii; II, chs. Ixxxviii, Ixxxix; A. R. Conkling, City Government
(4th ed., 1899); T. M. Cooley, Constitutional Law (3d ed., 1898), ch.
xvii; E. McQuillin, Mnnicipal'Corporations (igii-igi^); T. M. Cooley,
Constitutional Limitations (7th ed., 1903), ch. viii; J. F. Dillon, Muni-
cipal Corporations (sth ed., 191 1); D. B. Eaton, Govt, of Municipalities
(1899); J. A. Fairlie, Municipal Administration (1901); F. J. Goodnow,
Administrative Law (1905), bk. iv, ch. iv; C. A. Beard, Am. City Govt.
(1912), chs. ii-iv; Cyclop, of Am. Govt. (1914), Arts, on Charters, Muni-
cipal; Chicago; City and the State; Municipal Govt., Functions of;
Municipal Govt, in U. S., Hist. Development of; Municipal Govt, in
the U. S., Organization of; New York City; Philadelphia; R. W.
Cooley, Law of Municipal Corporations (1914); C. Zueblin, Am. Munici-
pal Progress (1916); W. B. Munro, Govt, of Am. Cities (1916), chs.
i-vii; H. L. McBain, Municipal Home Rule (1916); F. J. Goodnow,
City Govt. (1904), chs. ii-vi; F. C. Howe, City the Hope of Democracy
(1905), chs. X, xi; H. C. Black, Constitutional Law (1897), ch. xvii.
— Sources: Civil Service Record {\%%i-\?,g2); Good Govt. (i8g2-); Muni-
cipal Affairs (1897-1902); A. R. Hatton, Digest of City Charters (1906);
C. A. Beard, Readings in Am. Govt. (1909), chs. xxvii, xxviii.
City Executwe: F. J. Goodnow, City Govt. (1904), ch. viii; F. A.
Cleveland, Organized Democracy (1913), §§ 320, 321, 323, 344; W. B.
Munro, Govt, of Am. Cities (1916), chs. ix-xi; Cyclop of Am. Govt. (1914),
Arts, on Commission System of City Govt.; Mayor and Executive
Power in Am. Cities; C. W. Eliot, Am. Contributions to Civilization,
(1897), No. 7; J. A. Fairlie, Municipal Administration (1901), chs. xviii,
180
§ 87] Origin. 1 8 1
xix. — Sources: Reports and inaugural addresses of mayors; National
Municipal Review, passim.
City Councils: D. F. Wilcox, Study of City Govt. (1887), 143-179;
J. A. Fairlie, Municipal Administration (1901), ch. xvii; D. B. Eaton,
Govt, of Municipalities (1899), chs. x, xi; J. F. Dillon, Municipal Cor-
porations (5th ed., 191 1), II, chs. xiii-xvi; A. R. Conkling, City Govt. (4th
ed., 1899), ch. iii; W. B. Munro, Govt, of Am. Cities (1916), ch. viii,
Cyclop, of Am. Govt. (1914), Art. on Legislation and Legislative Prob-
lems in Cities; E. McQuillin, Municipal Corporations (1911-1913),
II, chs. xiii-xxi; F. J. Goodnow, City Govt. (1904), ch. vii. See also
general references above.
87. History of American City Governments.
Cities and their problems are as old as civilized mankind.
Ever since the dawn of history men have gathered together in
walled enclosures ; indeed, our word " town " means a settle-
ment surrounded by a palisade. At the beginning of our col-
onization there were many English cities founded on royal
charter, most of which were represented in Parliament ; and
it was supposed that cities would speedily grow up in the colo-
nies. Indeed, in the year 1641 a city charter, the first in
English America, was issued to Agamenticus, Maine ; and in
Virginia two of the rural counties to this day bear the names
Elizabeth City and Charles City ; but even the largest places
in New England all retained town government until after 1820.
There were about twenty chartered boroughs and cities in colo-
nial times, none of much importance except New York and
Philadelphia.
The development of city government in America practi-
cally began about 1820. In the statistical publications of the
United States government, a city is defined as an aggregation
of 8,000 persons hving in one territorial unit and under one
local government. When the federal constitution went into
effect in 1 789, there were only six such cities. In the eleven
decades since 1790 the total population has increased from
4,000,000 to 76,000,000, and the city population from 132,000
to 25,000,000. There are now more than 10,000 incorporated
towns and cities, of which 546 have each more than 8,000
1 82 City Governments. [§87
inhabitants. The present New York City had in 1790 less
than 50,000 people; it has increased seventy times, to about
3,500,000. In 1810 there was not a single place of 100,000
inhabitants ; now there are 38 such cities. The total city
population in 1850 was under 3,000,000 ; in 1900 it was nearly
25,000,000 ; in 1790 about one thirty-third of the people lived
in cities, now nearly one third.
We hardly realize how swift and how unique has been the
increase of American cities. Nearly every European city of
note was a large place four centuries ago ; in the United States,
of the fifteen largest cities, only seven had any population
before the Revolution, and the ten great cities of Chicago,
St. Louis, Cleveland, Buffalo, San Francisco, Cincinnati, Pitts-
burg, Detroit, Milwaukee, and Washington, taken together, had
as late as 1840 only about 150,000 people. The cities are-not
only new on their ground, but they contain people most of
whom come from outside the state, and many from outside the
United States. At this moment, of the adults in the city of
New York, 53 per cent are foreign-born.
The older places all suffered from the attempt to keep on
with forms of government long outgrown. Boston continued
a town, until in 1822 it was absolutely necessary to give it a
city charter. New York found repeated legislative enactments
necessary ; its charter has been fundamentally revised no less
than six times, and hundreds of single statutes have affected
its government.
The ancient and mediaeval idea of a city was that it ought to
be a self-governed state ; but that conception has nowhere
been realized, or indeed attempted, in America. Perhaps
Rhode Island, with its commanding city of Providence, is the
nearest approach. Most of our cities are imbedded in states
having large rural populations ; and the legislatures have drawn
up city charters, and are constantly tinkering with the city
governments.
After cities began, to spring up, it was many ye*rs before
§88] History. 183
Americans faced the new problem. During the half century
from 1789 to 1840, their attention went to the states and their
constitutions ; then pubhc interest went into the great struggle
over slavery, culminating in the Civil War ; and it was not until
about 1875 that the Americans finally woke up to the inefficiency
of their city governments. In the last twenty-five years most
of the cities have received new charters, and there is at present
a greater interest than ever before in improving city govern-
ment. People have also become more aroused in municipal
elections : the choice of mayor of New York City comes second
in popular interest only to the election of president of the
United States.
88. City Charters and City Functions.
The outward semblance of American city government is very
similar to that of the state governments. It is founded on
a written charter corresponding to the state constitution ; the
city mayor resembles the state governor ; many cities have two
legislative bodies, like the state legislature ; and there is a
system of executive boards very much like those created for
state purposes. This resemblance is no accident : city govern-
ment is purposely restricted and balanced and assimilated to
state government.
In colonial times among the twenty or more borough or city
charters, the most important were the Dongan New York
charter (1686), and Penn's Philadelphia charters (169 1, 1701).
In Philadelphia, Annapolis, and Norfolk the city government
filled its own vacancies, and thus got out of relation with public
sentiment.
Soon after the Revolution, the state governments began to
grant municipal charters, — Charleston in 1783, New Haven
and other New England places in 1784, Philadelphia in 1789
(third charter), Baltimore in 1797. Probably, first and last,
1,000 city charters have been framed. Most of them have been
drawn up especially for the city concerned, sometimes by the
1 84 City Governments. [§ 88
preexisting city government, more often by a committee of
the legislature. Public-spirited citizens sometimes draw up
a charter, and by agitation attempt to secure its passage : the
Municipal League, a national organization of those interested
in the improvement of city government, has recently drafted a
model charter, which has been substantially adopted in some
places.
City charters are frequently elaborate codes. For instance,
a charter drawn up for the city of Minneapolis in 1898, by
a special commission, contains 28 elaborate chapters and is 72
pages long. The city charter of Greater New York, 750 pages
long, was drawn up by a commission appointed in June, i8g6,
which held public hearings and employed lawyers to help com-
plete the draft; the commission reported in February, 1897,
and soon after made public the text of the draft ; there was
little opportunity for public opinion to affect the draft, and
with modifications it was enacted by the legislature as a
general statute.
Another and better system that prevails in some of the West-
ern states is to enact a general form of charter, applicable to a
town or a village of a certain size which wants to become a city ;
it goes through the necessary formalities, and begins its munici-
pal life under this general charter act. This method avoids
the pulling and tugging of local interests to get special clauses
into a city charter ; and it also obviates the hurry and imper-
fection of charters hastily drawn and enacted, perhaps with
contradictory provisions.
Charters are often, though not invariably, submitted to the
people of a city for ratification. Besides a list of city officers
and a careful enumeration of their duties, a charter or general
organizing act invariably contains a statement of the local
powers which may be exercised by the city. For instance, the
Minneapolis draft of 1898 sets forth the subdivision into wards,
the system of election and of appointment and removal of offi-
cers, the manner in which legislative ordinances may be passed,
§ 88 ] Charters and Functions. 185
and enumerates 88 specific functions which may be exercised
by the city council, ranging all the way from "licensing news-
boys, bootblacks, fortune-tellers, clairvoyants, astrologers, and
massage doctors," to incurring debts for parks; and there are
minute regulations as to making contracts and granting munici-
pal franchises. The principal city functions are the police
and fire service, water, public lighting, streets, schools, libraries
(pubUc and private), health, corrections and charities, parks,
municipal franchises, and taxation and finance for carrying on
these great purposes.
It is a fundamental principle of American law that no grant
of power to a public corporation is irrevocable. Hence no
legislature can give to any city authority which a subsequent
legislature cannot wholly take away; otherwise we should have
the mediaeval spectacle of cities within a state and yet inde-
pendent of it.
The purpose of a charter or amendatory act is to determine
how a municipality shall govern itself. Legislatures go much
farther, by ceaseless legislation directly affecting the relation of
people to their city governments, and sometimes taking the
government out of their hands. They do this in three ways:
(i) By reducing or expanding the powers of cities, often for pri-
vate or temporary ends. (2) By frequent and often causeless
change of details. If a city, for instance, has a mayor with
a term of three years, and a new charter is adopted with a term
of two years, the mayor goes out of office a year before he
expects. (3) By outrageous denial of any right of municipal
home rule, — as, for instance, by the Pennsylvania "Ripper
Bill" of 1901, under which the government of several cities,
especially Pittsburg, was taken out of the hands of the people
by endowing the governor with the right to appoint a "recorder"
with the power of the previous mayor, and the added power
of dismissing other city officials. The resiilt was the uprising
of the people of Pittsburg, in the next municipal election, against
what they thqught was an imjustifiable deprivation of rights
1 86 City Governments. [§89
and a denial of self-government enjoyed by almost all other
municipalities in Pennsylvania and elsewhere.
89. City Government by State Legislation.
Of all forms of American fundamental law, city charters
are most subject to alteration. Though superior to all city
ordinances, and unalterable by either the government or the
people of a city, they are, in the eyes of the legislature, simply
ordinary statutes, changeable at will, and actually changed in
many different ways, (i) By making a new charter outright :
New York City has had four since 1783. (2) By general stat-
utes providing new duties/ for all local governments, — as, for in-
stance, the Massachusetts law that every community shall furnish
opportunity for a high-school education. (3) By special acts
applying to particular cities. Between 1880 and 1889 there
were 390 such indirect amendments to the charter of New York
City.
Under the best conditions, special legislation for cities com-
plicates the law till no public officer knows just where he stands.
In New York State, for instance, of 33 considerable cities, only
four have the same charter or the same system of assessing
taxes. The laws with regard to a particular city are confused,
and the body of law affecting all cities is still more confused.
A plausible remedy for these confusions is embodied in the
New York constitution of 1894, — namely, that a special act
affecting a city may be vetoed by the mayor of the city so as
to call public attention to the bill, though subject to be passed
over the veto by a simple majority of the two houses of the
legislature. In practice a Republican legislature almost always
overrides a Democratic mayor, and vice versa. Another remedy
is that the legislature shall pay closer attention to the recom-
mendations of the city governments, which constantly ask the
legislature to pass legislation in their behalf. Many statutes
are passed without the' consent, or even against the protest, of
the cities afTected. For example, the Ohio legislature in 1888
§89] State Control. 187
compelled the city of Cleveland to tax itself about $300,000
for the construction of an inartistic soldiers' monument.
The regulating power of the states is also indirectly exercised
in various ways, (i) By designation of city officials. For
many years the mayor of New York City was appointed by the
governor ; and in some states other city officials are still so
appointed, although the practice is very unusual.
(2) By assigning duties to city officials, outside their local
functions. Many municipal officials are really also state officials
exercising powers under the legislature, because the city service
is also a part of the state service. The city clerks, for in-
stance, constantly have duties of registration and record thrust
upon them by the legislatures ; city tax-collectors also collect
the state taxes, and must account for them ; city school authori-
ties are bound to observe state laws as to the course of study,
the length of the school year, the text-books to be used, and
the examination of teachers ; the local police service is fre-
quently used for the arrest of criminals against state laws.
(3) The right to impose duties implies the right of the state
to see that they are performed. Not only do the state courts,
by mandamus and other proceedings, control city officials, but
in some states, especially in New York, city officials, even
elective, may be removed by the governor if they refuse to per-
form their duties. The supervision of states over cities is as
yet imperfectly worked out in the United States. A suggestion
recently made is for a state municipal board, with the duty of
watching over the municipalities and seeing that they comply
with the laws.
(4) Another method of controlling municipalities is through-'
the creation of state instrumentalities for purely municipal
service. The most frequent function selected for this control
is the police : in Boston the police commissioners are appointed
by the governor and are responsible to him, although the city
must tax itself for the support of the police. The ostensible
purpose of such commissions is to get the police out of politics ;
i88 City Governments. [§90
sometimes, however, the system simply substitutes a different
kind of poUtics. In New York, after various fluctuations, the
police have been restored to the control of a commissioner
appointed by the mayor. Again, the control of elections is so
distinctly a state service that it is not remarkable that many
city election boards derive their authority direct from the state.
Commonly the people of the cities disHke this state supervision,
because they feel it a reflection upon their capacity for self-
government, and it is an inconvenience to subdivide local gov-
ernment among various authorities. The tendency at present
is to break up the state commissions, and to throw their func-
tions upon city officials.
(5) Some functions of cities and of rural governments are
as a whole supervised or administered for the whole state by
state boards. For instance, gas commissioners may pass upon
the quality and price of gas in every city; state boards of
health have powers of control over all the local boards ;
about thirty of the cities and towns in the neighborhood of
Boston have many common interests, and the state has created
a " metropolitan " sewer commission, water board, and park
commission. But side by side with the state system exist in
most of the cities local sewer and park systems, with separate
city boards.
90. City Councils.
Cities have no judicial system of their own ; the so-called
municipal courts and city courts are simply local branches
of the state courts. The other two departments of govern-
ment are nominally, separated from each other; in practice,
however, much of the city executive business is performed by
committees of the council, a clumsy method which prevents
rigid responsibility. The city legislative department is in
most cities much weaker than the executive, for its field of
authority is limited at best, and is constantly encroached on
by the state legislature.
§9°] Councils. 189
Colonial city governments had usually a single council, part
of the members of which were called aldermen, and performed
special functions; yet by an amendment in 1796 to the third
Philadelphia charter two separate councils were provided ; and
the bicameral system speedily spread. In the Middle states
this system is probably an imitation of federal and state
government ; in New England, when a town was changed into
a city, a board of aldermen was provided, with the previous
executive powers of the selectmen, and in course of time
became also the more important legislative body. Since
about 1870, perhaps two thirds of the considerable cities have
got back to a single legislative chamber, which is now required
in all the cities of Ohio.
The organization of local legislatures is very much like that
of the state legislature : ordinarily each house, if there be two,
elects its own president, who, like the speaker of the state
legislature, appoints committees, and often practically controls
all the proceedings. The lower house is considered a training-
school for the upper chamber, which is commonly the least
numerous body, is rated higher, and has larger functions : for
instance, it often votes on nominations made by the mayor.
The term of office is commonly one or two years, occasionally
more ;^ and more than one or two reelections are not usual.
In small places the city council may have not more than 1 2
members; in Boston there are 75 councilmen and 13 alder-
men. Small salaries are common ; and in New York the
members of the board of aldermen have salaries of ^1,000
per year. There are many petty privileges, such as theatre
tickets, carriage hire, visits to other cities, etc.
In almost every city the mayor, through the veto power, is
a part of the legislature, and often presides over one or the
other branch of the city government. As in the states, the
veto may usually be overridden by a vote of from two thirds to
four fifths : of 920 measures sent to Mayor Hewitt of New
York in 1887, he vetoed 825, of which only 48 were passed
over his veto. In general the city legislatures frame a large
190 City Governments. [§90
amount of legislation on small matters. The body of ordi-
nances is constantly swelling, and is from time to time codified
into a statute-book : the revised ordinances for the city of
Hartford for 1898 contains 21 chapters and occupies 141
pages. Besides the ordinances, the city governments fre-
quently pass resolutions on general political matters ; they
often appoint committees to investigate executive officers ;
and they are fond of sending committees about to other cities
to examine the public service there, at the expense of the
home taxpayer.
The people of the cities are commonly not much interested
in the action of their city councils. In a few cases the pro-
ceedings of the city are reported verbatim and printed, but
they do not appear in the newspapers of large circulation.
In most cities there is little left for the city legislatures to
do : in New York City, for instance, the aldermen have almost
no large power except to grant franchises. Bribery is not
unknown in city councils, and sometimes money is directly
applied on a large scale. In 1902, in St. Louis, ^160,000
was deposited in a bank, subject to the joint control of the
friends of a franchise, and of certain members of the city gov-
ernment who undertook to get it through. The ordinance
passed the council, but was vetoed by the mayor; where-
upon the engineers of the scheme demanded that the money
be surrendered to them. The original possessors resisted, and
the matter finally got into the courts.
Many men of high character serve on city councils. For
instance, in Pittsburg, and in Chicago of late, a large majority
of the council have been men of high public spirit ; but the
labor is made unduly heavy by the executive committee work,
and the opportunity for reputation is small. At present the
city councils, from having been the centre and source of city
government, have become the least important branch, and
perhaps the least esteemed. Various reasons are given for
this unhappy state of things ; perhaps the most forcible* is the
feeling of the people of a city that they must appeal for good
§9°] Councils. 191
government, not to their city representatives, but to the state
legislature.
From the beginning, the city councils exercised large ex-
ecutive functions, at first through the upper house, commonly
called aldermen, and then by standing committees on execu-
tive matters ; and to this day most of the city governments,
both in their ordinary legislation and in school matters, keep
up the system of executive committees, which have power to
settle on executive policies and to give directions to executive
officials. For instance, in many cities there is a finance com-
mittee, without whose consent practically no appropriation can
be made ; committees on parks, public buildings, schoolhouses,
text-books, frequently control park commissions or school
superintendents and principals. This confusion of execu-
tive and legislative functions, although common in state legis-
latures, is unfortunate ; for the city councils change rapidly,
and hence members of committees have often little experi-
ence in their fields. It is hard to fix responsibility on a
committee of several members ; and some one member of the
committee, often the clerk or the secretary, really settles many
matters of importance, although he is in no official relation to
the executive department. A very common method is for the
members of a committee to parcel out appointments and duties
geographically : a committee on teachers, for instance, agrees
that each member shall have the patronage in a certain ward
or district.
While city councils have been grasping executive power,
they have suffered from several encroachments upon their
nominal legislative power. The most important are those
of the school board and the board of estimate. In nearly all
cities the school board is a separate local legislature, appointed
by the mayor in a few cases, but almost invariably elected
either by wards, or on the general ticket ; it is usually too nu-
merous for very efficient action, and is possessed of almost
complete power over teachers, courses of study, and discipline.
In some cities the school board also builds the schoolhouses
192 City Governments. [§9^
and levies a separate tax ; but a more common system is that
appropriations shall pass through the hands of the regular city
government, which provides new buildings.
In many cities, the councils have no longer control over
taxes and no power to initiate expenditures ; in some cases
they may amend a budget ; in others they can only reduce
the estimates, they cannot increase them. Many of the large
cities, including New York, Buffalo, New Haven, Minneapolis,
Cleveland (till 1902), Toledo, and Albany, have a board of
'estimates, made up of executive, usually elective, officials,
especially the mayor and comptroller. This non-legislative
body actually exercises the most important of all legislative
functions, — namely, the laying and expenditure of taxes.
The present Greater New York charter has an ingenious
system in which some of the executive officers have one vote
on the board of apportionment, some have two, and some
have three, according to their importance. Upon the whole,
these special financial legislatures seem to work well, and they
are likely to remain, although they manifest distrust of the
ordinary elective council.
91. The Mayor.
As in the states, the municipal executive is divided into
three parts : a single official, commonly called the mayor ;
other executive chiefs, usually not appointed by the mayor ;
and a force of executive subordinates. In the colonial charters
no mayor was elected by popular vote : he was designated
either by the governor or by self-perpetuating councils ; and
the mayor of New York City was appointed by state author-
ity until 182 1, when provision was made for the choice of
mayor by popular vote, which is now practically the invariable
system.
Three quarters of a century ago people dreaded the estab-
lishment of a one-man power, and hence the mayor was long
inferior to the councils, (i) Until within twenty years the
§90 The Mayor. 193
mayor has almost never had the power of appointing the
principal executive officers of the city. (2) His power to ap-
point lesser officers has almost always been subject to confirma-
tion by aldermen or a council. (3) Large areas of executive
power have been by the charter withheld from the mayor
and retained by committees of the council, or given to separate
executive boards. (4) In many cities, the early mayor had
no veto power on ordinances passed by the council. Without
a thorough appointing power, without a removal power, with-
out adequate administrative powers, the mayor was sometimes
a figurehead, more often an official having responsibility for
acts which he could not control.
About 1850 began the more systematic organization of city
government, and in various charters the mayor received greater
powers, including the qualified right to remove. By some of
the most recent charters, — as, for instance, that of Boston, —
the mayor may remove appointive officers without the consent
of the council, and is thus enabled to compel obedience to his
directions on pain of dismissal. In a few states, notably New
York, the mayor may be removed by the governor. The ten-
dency of new charters is now to strengthen the power of the
mayor, by giving him the appointment of more officials (in
some cities, not subject to ratification), and by giving him
a larger removal power. Such charters were obtained in
Richmond in 1870, in New York in 1870 and 1873, ^^
Pennsylvania in 1873, ^7 '^ general municipal statute for the
organization of all cities of a certain class within the com-
monwealth. Another improvement has been to extend the
mayor's term, which is now two years in Boston, four years in
Buffalo, and three years_ in Cincinnati.
By this gradual process the mayor has been brought near to
the governor in relative power ; but, like the governor, he still
needs authority to appoint all the heads of departments, after
the example of the national government. In the model pro-
gramme of the National Municipal League of 1899, it is
proposed that the mayor shall have the sole power of
1 94 City Governments. [§ 92
appointing and removing all executive ofificers except the
comptroller. In the former Brooklyn charter, this system
was extended to broad limits. In 1891 the Cleveland public
executive service was divided into six departments, at the head
of each of which was a "director" appointed by the mayor
with the approval of the council, and removable by the mayor;
subordinate appointments were made by the heads of depart-
ments. This so-called "federal" plan has also been followed
substantially in the charter of Greater New York ; of course it
so concentrates power in the hands of the mayor as to call
public attention to his acts, and he is justly held responsible
for the acts of all his subordinates.
This system of " responsible mayoralty," especially if it
includes removal for cause which seems good to him, un-
doubtedly tends to increase interest in the election of the
mayor who exercises such large powers. It also greatly
increases the efificiency of the executive, because the mayor
can keep the various departments in line on carrying out a
policy. Furthermore, it tends to check excesses on the part
of the council, since the mayor who has the will has also the
power, not only to veto measures, but by his conspicuous
position to direct public attention against what he believes
to be unwise. The power for harm of a responsible mayor,
if public sentiment is apathetic, was strikingly shown in 1902
in the performances of the city government of Minneapolis,
where the mayor sold permits to evade the law, and had to
be driven out by prosecution in the courts.
As head of the city, the mayor has important social functions :
he welcomes distinguished visitors, represents the dignity of the
city, and often takes part in great public occasions outside of
his official duties.
92. City Departments.
The city executive service is necessarily subdivided into
many departments, most of the heads of which are elected,
and often for different terms and at different times from the
§92] Departments. 195
mayor. In the earlier years of American municipal experi-
ence, such officials were commonly chosen by the city council,
as some are still. It was thought a promising reform when,
about 1850, the large cities began to elect their own munici-
pal officers.
The subdivision is not unlike that in the states. There is
always one financial officer, and often several : thus, in the old
Brooklyn charter there were separate departments of finance,
audit, assessment, collection, arrears, and treasury. The city
treasurer is often one of the most important of these officers,
and in small cities combines most of the executive financial
functions. Commonly there is another officer, the auditor or
comptroller, who is practically the city bookkeeper ; and, as
he decides, what payments are legal, his position is one of great
importance. There is usually a city solicitor, or corporation
counsel, who acts as a kind of attorney-general for the city.
One of the most important departments is the police, usually
headed by a commissioner, sometimes by a board of commis-
sioners. Next in significance is the fire department, with a
commission or a commissioner. The department of education
is commonly quite separated from the rest of the city officers.
Public works is an important executive department, sometimes
subdivided into a building and a street department, with a
street commissioner. The department of health is usually
under the charge of a board. Street-cleaning is sometimes a
separate department from either the board of health or the
street department. In cities which have their own water or
lighting systems, a water or a gas commission is common. In
cities like New York, Philadelphia, and Baltimore, the county
officers, sheriff, prosecuting attorney, treasurer, and so on, are
in effect a part of the city system : the famous Tweed Ring of
New York, in 1872, was made up of county officials.
Except where there is a cabinet system of officers mostly
appointed by the mayor, there can be little direct relation
between departments. Sometimes the mayor calls the heads
together at a daily or a weekly meeting, so that each may
196 City Governments. [§93
know what the other is doing ; but, unless removable by the
mayor, the heads of departments are very likely to work against
him.
In general the salaries of city executive officials are un-
reasonably small, much lower than those of the servants of
great corporations who perform similar functions. The mayor
of Greater New York receives $15,000 a year; the mayor of
Boston, $10,000; the mayor of Chicago, $10,000. The cham-
berlain of New York (the city treasurer) under the old system
had $25,000 a year. In smaller cities such officers as the
street commissioner, city treasurer, and city engineer receive
from $300 to $3,000 a year, in almost all cases by an outright
salary, for fees are uncommon. Some cities of the middle class
pay more adequate salaries : the city treasurer of Indianapolis
receives $8,500, while the treasurer of Springfield, Illinois,
receives but $1,200.
93. City Officials and Employees.
Below the heads of departments comes a little army of sub-
ordinate officers of every kind, down to the gang bosses for
laborers. Where politics are highly developed, many such
offices are created to furnish support to the district leaders.
Most of the subordinates are appointed by the heads of their
offices, and hence are subject to removal whenever there is a
change, by election or by political revolution, among their
chiefs ; therefore in later and better charters the minor officers
are often appointed by the mayor. These positions are very
eagerly sought, especially when protected by the civil service
system.
In some departments, the number of people holding respon-
sible positions is considerable. In all the financial offices,
— treasurer's, tax-collector's, auditor's, comptroller's, and the
like, — there must be competent heads of bureaus, capable
of directing a body of clerks ; in the offices of public works,
there must be trained engineers and surveyors. Throughout,
there must be some clerks who know the routine, or else the
1. CAMBRIDGE, MASS.
2. PHILADELPHIA
NEW ORLEANS
CITY BUILDINGS
LOUISIANA
§93] Officials and Employees. 197
machinery of business would stop altogether ; hence there
will always be found a small number of ofificials retained from
year to year. In Cambridge, Massachusetts, the present city
treasurer, chosen by the city council, has been reelected
twenty-four times.
Below the responsible men who exercise discretion, every
large city has two large bodies of subordinates who take orders
but do not give them. First in order are the policemen, the
only city servants, except the fire department, with something
like a military organization. Since the lives and property of
the people depend upon the faithfulness of the police, in most
cities they have something approaching a permanent tenure :
in New York, for instance, they can be removed only for cause.
The firemen, also, employed in a skilled and hazardous calling,
are well paid, and in most cities have long tenure. For this
very reason there is a tendency for policemen and firemen to
organize and insist on a raising of their pay. The ordinary
pay of the New York police force is ;^ 1,400 a year, with a
retiring allowance.
Next come the laborers on street, sewer, and water con-
struction, and on the great public buildings. In most cities
they have a precarious employment, since getting city employ-
ment depends not on capacity but on a recommendation by a
politician. Even in the few cities where civil service rules
prevail, it is hard to provide a proper test for laborers. City
•work usually costs more than private contract, because it takes
more men to accomplish the same job, and they usually
receive high wages. The labor organizations in general fa-
vor some method of selection of public servants which shall
not depend upon the good will of politicians ; and experience
shows that it is possible to select unskilled workmen, not by
any formal examination, yet without the favoritism and lack
of responsibility which go with political appointment.
198 City Governments. [§94
94. Civil Service Reform in Cities.
In view of the large number of minor employees, the appli-
cation of the principles of civil service reform to cities is one of
the most promising improvements now proposed. So far, only
a small number of cities have been brought within the system.
By the constitution of 1894 of New York, civil service reform
must be applied to all the cities within the state ; by a statute
of Massachusetts (1885) it may be applied to any city which so
votes, and most of the Massachusetts cities have accepted the
act. It has also been appUed, since 1895, to such cities of
Illinois as by popular vote might desire it ; the city of Chicago
by a large popular majority at once accepted it.
The general principles of the reform are as follows : (i )
Candidates must pass examinations, " public, competitive, and
free to all citizens of the United States"; only through such
examinations can people enter the city service. (2) Ap-
pointments are made provisionally : the head of an office may
refuse to appoint at the end of a short period of probation, if
he is not satisfied. (3) Promotions are to be made from one
grade to another, on the basis of ascertained merit, seniority
in service, and examination. (4) No person may solicit
political contributions from any city officer or in any city
office.
These acts are sometimes disregarded outright by the.
appointment or promotion of persons who have not been ex-
amined ; but there are civil service commissions, whose busi-
ness and whose interest it is to uphold the law. The law is
sometimes lamed, however, by legislative or executive excep-
tions, sometimes hundreds in number ; and rebellious heads of
offices apply to the courts to delay the effect of the law, and
attack it in its details. Perhaps the most effective opposition
to the law is a constant current of contemptuous criticism in
the press, and often in public speeches. The favorite charge
is that the examinations are not practical, — a charge easily
§94] Civil Service Reform. 199
disposed of by reading the published papers set for the
different kinds of service.
The mainstay of the merit system is that in practice a better
grade of man is obtained for clerkships and similar tasks than
by political appointment. Among skilled labourers, the likeli-
hood is greater that the men appointed will actually be good
workmen ; and the city officials, who are relieved from the
pressure of appointing political friends to office, have more
time to devote to their regular duties.
This whole system of civil service reform is necessarily lim-
ited by the power to remove for the good of the service.
Wherever a responsible mayoralty has been established, he
must have the power to remove heads of departments, for
otherwise there could be no administrative unity. It is like-
wise necessary that the heads of departments shall have power
to remove their subordinates, not only for peculation or positive
disobedience, but also for inefficiency. If, however, to fill the
vacancy they must accept .the candidate shown by the civil
service examination to have the best rating, there is no longer
the temptation to remove simply because somebody else wants
the office ; and hence the merit system of appointments to a
large degree prevents removals, and thereby encourages men
in office to do their best.
CHAPTER XII.
PROBLEMS OF CITY GOVERNMENT.
95. References.
Bibliography: W. B. Munro, Bibl. of Municipal Govt. (1915),
§§42, 61, 68, 69; A. B. Hart, Manual (1908), §§ 107, 108, 211; C. D.
Wright, Practical Sociology (1909), §§ 66, 72; L. S. Rowe, Problems of
City Govt. (1908), 94, 9S; J. B. Reynolds, Civic Bibl. for Greater New
York (1911), 18-26; Harvard Univ., Dept. of Social Ethics, Guide to
Reading (19 11), 210-215; Russell Sage Foundation, Social Survey: a
Bibl. (1913); R. C. Brooks, Bibl. of Municipal Problems (1901). See
also references to chs. xi above and xxx below.
City Population: C. D. Wright, Practical Sociology (1909), chs.
viii, ix; F. C. Howe, City the Hope of Democracy (1905), chs. xix, xx;
C. A. Beard, Am. City Govt. (1912), ch. i; D. F. Wilcox, Am. City (1904),
chs. i, iv; L. S. Rowe, Problems of City Govt. (1908), chs. iv, v; A. F.
Weber, Growth of Cities (1899); F. J. Goodnow, Municipal Govt. (1909),
ch. i; J. W. Bookwalter, Rural versus Urban (1910); D. F. Wilcox,
Great Cities (1910), ch. viii; J. A. Riis, Children of the Poor (1903). —
Sources: U. S. Thirteenth Census, Population (1913-1914); U. S.
Twelfth Census, Bulletins, Nos. 62, 65, 70, 149. See also references to
chs. xxix, xxx below.
Effect of Foreigners on City Government: C. W. Eliot,
Am. Contributions to Civilization (1897), No. 7; Cyclop, of Am. Govt.
(1914), Foreign Elements in the U. S.; J. R. Commons, Races and
Immigrants (1907), ch. vii; WvS. Bennet, Immigrants and Crime (Am.
Acad. Pol. Sci., Annals, XXXIV, 11 7-1 24, 1909); F. J. Goodnow,
Municipal Govt. (1909), ch. iii; H. P. Fairchild, Immigration (1913). —
Sources: Municipal AJfairs (1897-1902); J. A. Riis, How the Other Half
Lives (1890); J. A. Riis, Making of an American (1901).
Remedies: Report of the Tilden Commission, in Municipal AJfairs,
III, 434-454 (1899); S. Low, Problems of Municipal Govt. (1887); N.
Matthews, City Govt, of Boston (1895), 174-185; J. A. Fairlie, Municipal
Administration (1901), ch. xx; National Municipal League, Municipal
Program (1900); F. C. Howe, City the Hope of Democracy (1905), ch.
viii; S. F. Wilcox, Am. City (1904), ch. xi; A. L. LoweU, Public Opinion
and Popidar Govt. (1913), ch. xviii; E. S. Bradford, Commission Govt.
200
§ 96] Urban Residents. 201
(1911); W. B. Munro, Govt, of Am. Cities (1916), chs. xii-xiv; W. B.
Munro, Municipal Adininistration (1916), chs. i, ii; H. E. Deming,
Govt, of Am. Cities (1909); E. McQuillin, Municipal Corporations (191 1-
1913), I, §§ 84-100; L. Steffens, Shame of the Cities (1904); W. Gladden,
Social Facts and Forces (1897), ch. v; C. A. Beard, Am. City Govt.
(1912), chs. viii, xi, xiv, App. ii; New York City Bureau of Municipal
Research, Six Years of Mimicipal Research (1912); H. A. Toulmin,
City Manager (1915); O. Ryan, Municipal Freedom (1915); F. C.
Howe, Modern City aiid its Problems (1915); J. Nolen, Handbook of
City Planning (1915); C. L. King, Regulation of Municipal Utilities
(1912); M. N. Baker, Municipal Engineering and Sanitation (1906);
L. Veiller, Housing Reform (1910); National Municipal Review.
96. Urban Residents.
What are the real difficulties of American cities, and how
shall they be remedied? We may learn much from our own
experience, and also from the solutions found in other coun-
tries, especially in England and the English colonies, which
have cheaper and more effective municipal governments than
ours.
The first difficulty in America is the immense city popula-
tion, and the massing of the great cities of America on the
Atlantic coast, the Great Lakes, and the Ohio and Mississippi
rivers, with potentialities on the Gulf and Pacific coasts.
Counting a city as an aggregate population of 8,000 or more,
the 6 "cities" of 1790 had 132,000 people, or about one
thirty-third of the population ; the 546 cities in 1900 had
25,000,000 population, about one third of the whole popula-
tion ; and in New Jersey three fourths of all the people live in
cities. The largest city in the United States in 1790 was
Philadelphia, with 28,500 people, and the largest city in 1900
was Greater New York, with 3,437,000. In New England
and the Middle states alone, about 14,000,000 people live in
cities, and over 9,000,000 more in the interior states, from the
Ohio to the Dakotas and Kansas; while in all the Southern
and Southwestern states there are not 4,000,000. In twenty
years Chicago has increased from 500,000 to 1,700,000.
202
City Problems.
[§96
New York .
3.437,202
Chicago ,, .
1,698,575
Philadelphia
1,293-697
St. Louis . .
575.238
Boston . .
560,892
Baltimore
508,957
Cleveland
381,768
Buffalo . .
352,387
San Francisco
342,782
Cincinnati
325,902
Pittsburg . . •
321,616
New Orleans
287,104
Detroit . .
285,704
By the census of 1900, the twenty-five largest American
cities in their order were : —
Milwaukee 285,315
Washington 278,718
Newark 246,070
Jersey City 206,433
Louisville 204,731
Minneapolis 202,718
Providence 175,597
Indianapolis 169,164
Kansas City 163,752
St. Paul 163,065
Rochester 162,608
Denver 133,859
The rapid growth of great cities, especially of Philadelphia,
Boston, and New York, has in part come about through the
incorporation of former separate municipalities : Thus Man-
hattan borough in New York, in the ten years from 1890 to
1900, increased only about 400,000; but during that period
there was added nearly 2,000,000 of population from Brooklyn
and the smaller boroughs of Richmond and Queens. This
process is now about ended : Boston is the only large city
which has adjacent to it a considerable urban region ; and at
present its neighbors show no tendency to political union.
The great centres of population in the United States are now
well established, and most of them grew out of their relation
to transportation : Boston, Providence, New York, Philadel-
phia, Baltimore, Charleston, New Orleans, Galveston, San
Francisco, are great shipping ports for distribution inland;
Chicago, Duluth and Superior, St. Paul and Minneapolis,
St. Louis, Cleveland, Buffalo, Pittsburg, Detroit, Milwaukee,
Cincinnati, are on watercourses at convenient points for ship-
ment. A few other cities, such as Columbus, Indianapolis,
and Kansas City, have been created chiefly by the concentra-
tion of railroads ; but it is altogether likely that all the great
American cities of the future are already founded.
§ 97] Distribution of Population. 203
97. Distribution of Population within Cities,
Within tlie cities the population is very unequally distrib-
uted : for instance, in the areas of Chicago, New York, and
Boston are large tracts of farming country still actually tilled,
and also some of the densest centres of population in the
world. The main problem in the distribution of people within
a city is the relation of the business area to fhe residence area.
Most cities have regions (usually on a water front) so far given
up to the business of mercantile transportation and manufac-
turing that at night they are almost deserted ; other parts of
the city are almost free from business and constitute the
homes, usually in two settlements, — a so-called "residence"
section inhabited by the well-to-do, and a poor quarter often
degenerating into slums.
Until about ten years ago the residence quarter stood near
the business section, so that business or professional men could
live not too far from their daily duties. The introduction of
the electric car has caused a great difference, because it is now
as easy and almost as quick to travel two miles as half a mile ;
hence the residence section tends to move far out, where the
circle is bigger, and the values of intermediate property have
been much diminished. The shifting of the residence quarter
leaves many vacant lots, so that the American city is much
less neatly and compactly built than the foreign city. On the
other hand, except in New York, Philadelphia, and the heart
of Boston and Baltimore, well-to-do people prefer detached
houses instead of blocks of buildings. During the last twenty-
five years the European system of flats has become frequent
in cities, large and small ; it has the advantage of ease and
simplicity of housekeeping, but deprives the occupants of
separate pieces of ground which they may use as they like.
The poor section of an American city is always squalid :
the so-called " tenement-houses," in which families occupy
suites of a few rooms, or even single rooms, always tend to
depreciate ; and both rigorous statutes and honest administra-
204 City Problems. [§ 95
tion are necessary to prevent unhealthy and immoral crowd-
ing. In some foreign cities, municipalities construct proper
buildings for the poor; Naples has spent about $20,000,000
for this purpose, and in London large sums are going into new
lodgings. The farthest point reached in America is legislation
for pulling down the worst buildings, and leaving sites vacant
for breathing-spaces. One reason for the crowding in cities is
the presence of large numbers of foreigners, accustomed at
home to live in close quarters. In many cities there are
special foreign quarters, — an Italian section, a Russian-Jewish
region, a Bohemian quarter, a Hungarian settlement. In
such streets one might imagine one's self in the heart of a
foreign city.
The numbers and the races of foreigners differ much from
city to city. Many Irish are settled in the large cities, espe-
cially on the coast ; the Germans have been distributed
through ports having direct steamer lines to Germany, partic-
ularly New York, Philadelphia, and Baltimore, and also through
most of the great interior cities ; the Scandinavians have pre-
ferred the Northwestern country and the cities within it ; the
Russian Jews have settled by preference in large Eastern cities ;
the Italians have taken up small lines of business, principally in
New York and Boston ; the French are very few outside the
large Atlantic coast cities ; the Greeks have absorbed the fruit
business in most cities.
It is a great mistake to suppose that as a rule foreign-born
citizens are less interested in good city government than
natives. Some of the worst-governed cities have the smallest
foreign elements ; and in the great communities of Chicago
and New York, where nearly three adult men out of five are
foreign, there is a keen interest in local government, and con-
ditions are improving. The great trouble that arises from
foreigners is the ease of rolling up a German or Irish or
Scandinavian vote, and the difficulty of adapting people to
new conditions of life. No wonder it takes time to arrive at
a sense of personal responsibility for good city government
§ 98] Transportation. 205
among people who are living in what is to them a foreign
country, who have torn themselves up by the roots from the
land of their fathers, and who do not see all native Americans
on the side of public righteousness.
Americans-born are also a changeful folk. Many country
homesteads have been occupied by members of the same
family for a century or two, but not one man or woman in a
hundred in the city lives in the house in which he was born.
Neighborhoods change ; one set of people moves out, another
set moves in ; and it is hard to plant the feeling of fond-
ness for one's city, of pride in its beauty and in its good
government.
Some foreign cities, particularly in England, have hundreds
of absolutely houseless people, who may be seen at night
sleeping on park benches and under dry arches of bridges ; in
American cities such persons are few, for, though tramps mov-
ing from place to place have often no lodging- place, in most
cities the destitute are received in rude lodgings at police
station-houses. In England no person can vote who has not
a fixed residence of some kind ; in the United States tramps
and outcasts, who really have no continued relation to a city,
are sometimes allowed to register from some place where they
occasionally spend the night, and to vote.
98. Problems of Transportation.
The irregular distribution of the population of our cities
makes of great importance the system of transporting urban
and suburban passengers. The most obvious method was by
vehicles running through the ordinary streets. Such omnibuses
or stage lines have nearly ceased to exist, though there is still
a line on Fifth Avenue in New York City. Next came the
horse-cars, first successfully introduced in 1845, when people
were so glad to have a convenient method of transportation
that they gave to the companies who built the lines almost
any privileges asked. As population increased, such privileges
became valuable, sometimes enormously valuable.
2o6 City Problems. [§ 98
Then in a few communities arose the system of elevated
railroads, which could handle passengers much more quickly
because they did not run into or across streets at grade. Such
systems exist in Berlin, Paris, and London ; but New York,
Chicago, and Boston are the only American cities in which
they have been constructed. The next step was the introduc-
tion of the electric cars, about 1890. The advantages of this
system are that it does not require stabling of horses, and
hence can be operated with much less real estate ; that the
power is easily distributed and can be quickly increased or
diminished ; and that larger and more commodious cars can
easily be run at higher speed than is possible with horse trac-
tion. The trolley lines have driven the horse-cars almost
entirely off the city streets. Most of the trolley lines have
an overhead wire ; in New York City, however, the roads
have been compelled to put their electric supply in an under-
ground conduit. ,
The original horse-railroads were separate short lines, but
they have been gradually gathered together in larger companies
serving particular districts. Under the trolley system there
has been still greater consolidation, till in cities like Detroit,
Richmond, and Boston the whole service is performed by a
single company. The number of passengers is prodigious :
in New York the various lines, surface and overhead, handle
865,000,000 passengers a year; in Boston the Elevated Rail-
road Company, which also owns the surface lines, handles
214,000,000.
The newest, and in many ways the most convenient, traction
system is that of underground railroads. London has had one
since about i860; Budapest and Paris have them; but the
first American city to try the system was Boston, which in
1 895-1 898 built a subway about a mile long, and is now con-
structing sub-marine tunnels, and is about to build a second
subway. New York is now constructing a splendid system of
subways aggregating twenty-one miles, to cost ^35,000,000 ;
and other cities are likely to take up the same plan, which is
§ 9S] Transportation. 207
not affected by weather, is entirely out of the way, and does
not disfigure the streets.
The handUng of city passengers causes various complications
with the city governments. In the first place, many street
railroad companies have received perpetual concessions, —
that is, rights to lay permanent rails for private gain in streets
which are the property of the city. Such concessions are now
counted so valuable that in the state of New York the consti-
tution forbids any grant lasting more than twenty-five years.
Where concessions run out and have to be renewed, the great
companies are compelled to pay for the paving of a part or the
whole of a street, or to pay a fixed license fee per car, or to
pay a certain part of the gross receipts for the year. Even
where companies have perpetual concessions, it has in several
states been found possible to tax the value of their franchises,
— that is, to compel them to make some return for their
enormous privileges.
The physical task of taking care of the throngs of people is
a serious question. In most cities there is a system of free
transfers, usually at the centre of the city, so that, starting
from one suburb, one may often travel for a single fare, five,
ten, or fifteen miles to another suburb at the extremity of the
city ; and the city governments are always pressing the railroad
companies to increase transfers. The almost universal fare
throughout the United States is five cents for each passenger,
no matter what the distance travelled. On foreign lines it is
very common to have a system of coupons, by which a man
pays in proportion to the distance, the lowest fare being about
one cent. On most European lines no passengers will be re-
ceived unless there are places for them ; in the United States,
during rush hours, cars commonly have as many people stand-
ing as sitting.
2o8 City Problems. [§99
99. Political and Party Organization in Cities.
The suffrage in American cities is obtainable by all adult
men not intellectually or morally incompetent ; only in Provi-
<lence there is a special property qualification for municipal
voting, and in some other cities the same poll-tax quahfication
as in other parts of the state. It is often urged that the cities
would be better governed if only actual owners of real estate,
or of personal property of some consequence, should be allowed
to vote. The experience under the old system, however, was
that property- owners have no more to gain from good govern-
ment than the moneyless, and are no more likely to keep up a
good and economical government. On the other hand, a
deprivation of the suffrage would create a discontented class.
It might naturally be thought that, in organizing parties in
cities, people would group themselves on local questions which
are of great moment, such as the management of schools,
franchises to traction corporations, increase of taxes or of debt ;
but, as has been shown in discussing state politics, the actual
division of parties is almost invariably on national issues. The
inevitable purpose of city political parties is not to furnish a
good local government, but to keep up political organizations
and to get out the vote for national and state elections. So
far has this gone, that in various states the main political par-
ties are recognized by law as entitled to membership on
municipal boards of police or elections.
This division of the voters of a city on questions which do
not immediately affect municipal affairs is one of the most
serious defects of American city government, (i) It prevents
people from expressing an opinion on vital issues : if they want
new waterworks, it is not Democratic or Republican water-
works, but waterworks which will squirt ; and the introduction
of party issues often prevents getting at local questions of large
importance. (2) P- qood city official cannot expect reelection
unless his party remains in power ; and even his renomination
depends, not upon the faithful performance of his duties, but
§ 99] Political Organization. 209
upon his party loyalty. (3) The system tends directly to boss
rule ; for the successful municipal chieftain is he who can get
out the most votes in a state or a national election. He there-
fore is allowed to make up a municipal ticket which will help
him hold the vote, and to that end he may control the distri-
bution of city offices. It means also that faithful party men
are likely to accept the stamp of the local convention or boss
in municipal elections, and to vote for the regular party ticket
even though it has bad men upon it.
A most serious difficulty in securing non-partisan govern-
ment is that the city officials are called upon to execute state
laws which are really political, — such as the management of
caucuses and elections, and the enforcement of liquor laws and
other measures which apply to the whole state. If there were
a proper system of state supervision and enforcement of laws,
it would not seem so important to elect city officials who are
in sympathy with the politics of those who pass the laws.
The evils of political parties in the cities are perhaps some-
what exaggerated in the public mind. In order to carry party
elections, the managers are often compelled to put up men of
character for municipal office ; and, if there be a local issue in
which the people are deeply interested, they will find a way of
expressing opinion by indirect pressure upon the city govern-
ment, or by the wholesome process of withholding their votes
and preventing a party majority. In many cities, private
organizations have proved a most effective and influential
means of directing public attention to the real municipal issues.
Watch and ward societies, good government clubs, societies
for the prevention of vice, and the like, keep watch over the
administration of the city, and secure evidence for the con-
viction of evil-doers in or out of office. Such organizations
concentrate public attention on municipal problems, and
against individual officials who have failed in their trust.
Another form of relief from over-partisanship is the estab-
lishment of local third parties called by various names, — "non-,
partisans," "reform party," "citizens' union," and so on, —
14 .
2 1 o City Problems. [§ loo
and frequently engineered by large committees of eminent citi-
zens called " committees of seventy," " committees of one hun-
dred," and the like. The ever-present difficulty with such
organizations is that they have to fight all the regular parties at
once, and that it is hard to keep them together if they lose
elections. In a city where a large majority of the voters are
Republicans, the Republican organization will be kept going
from year to year so as to hold the state vote. In a city where
a majority of the voters are willing to elect a non-partisan can-
didate, a citizens' movement may die out because there are
not enough people ready to do the hard work of organization
ana getting out the vote. Nevertheless, the tendency in great
cities at present is distinctly toward ignoring party lines on
questions of municipal administration, while adhering to them
on state and national issues.
100. Essential Defects of City Government.
All writers and observers see great defects in American city
government. Many of them arise from human nature, or from
the conditions of city existence, and cannot be removed ; a
larger group are not inherent in circumstance, and by intelli-
gence and public spirit ought to be overcome.
Among the inherent defects is the rapid change in the
make up of the cities. Where population is increasing with
leaps and bounds, no city government makes sufficient pro-
vision for the future. For instance, had the people of the
great cities fifty years ago foreseen the present use of pipes,
they would have prevented the intolerable digging up of the
streets by providing subways into which new pipes could be
introduced as needed. Hardly a city in the country makes
provision in advance for the growth of the school population,
and hence the pitiful spectacle of thousands of children in
some cities turned away on the day of the opening of school,
because there is not room for them.
The shifting of population to and fro, the rise and some-
times the decay of suburbs, necessarily cause wastefulness in
§ loo] Defects. 21 1
the expenditure of public money. The movement of people
from country to town, from town to city, from city to large
city, from large city to another large city, prevents the forma-
tion of a civic pride, which must be the basis of good govern-
ment. The large amount of city business, the great problem
of transporting literally hundreds of thousands of people to and
from their avocations, the question\of proper terminal facilities
for steam-railroads, — these are difficulties which cannot be
obviated. Furthermore, the division of powers between the
nation, state, and cities, while salutary, tends to sacrifice the
interests of the city to those of the state.
(i) Of the non-inherent difficulties, first in importance is
the confusion of the fundamental laws for the cities. Many
city charters are not well balanced or adjusted, because drafted
by men who have had small experience in city government.
Of late there is some improvement ; for, when a city needs a
charter, its existing government often insists on being heard,
and demands that its experience be used in forming the new
government. But the constant tinkering of the charters tends
to destroy their unity; and, while the charter as a whole is
often submitted to popular vote, small amendatory acts almost
never have that guaranty.
(2) The next difficulty is the constant interference of the
states in city government, not only by the altering of the char-
ters, but by new legislation throwing additional duties upon all
the cities, and by special acts expressly intended to aid or de-
press the political leaders of the city government for the time
being. Well-intentioned legislation produces confusion, and
ill-intentioned legislation sometimes paralyzes a good admin-
istration. What is needed here is a more intelligent division
of powers, committing to the city more of the city functions ;
and then the legislature ought to keep its hands off.
(3) Another difficulty is adherence to bad methods of gov-
ernment. In most cities, both the mayor and the council have
too little power ; they are both too much tied up by legislative
acts, and hence both work at a disadvantage ; there are too
212 City Problems. [§ loi
many officers, elective and appointive, and their terms are too
brief. A study of English, French, and German methods will
furnish many useful lessons as to the proper organization of
local government.
(4) Another trouble very hard to prevent is occasional cor-
ruption in the city government. This may also occur in state or
national affairs, but is perhaps more common in cities because
it is harder to fix responsibility, and because there is so much
detail in city business that it is hard to watch it. -City govern-
ments are expensive : both the annual expenditure and the
public debt are constantly on the increase, and they do not
always furnish a good article of government for the money.
101. Possible Improvements in City Government.
If the experience of eighty years of large cities has not yet
taught the Americans how to carry on their governments, it is
not likely that they will be made perfect in the next eighty
years ; but two powerful agencies are always at work for re-
form. The first is time : it is impossible that the great cities
can continue indefinitely to increase in population at the
present rate, and hence many of the evils which result from
temporary and unexpected changes will disappear as time
goes on. The cities will at last find themselves. The second
agency is better organization, which would remove many of
the internal difficulties of cities. The system of responsible
mayoralty has much to commend it, and is apparently gaining.
It tends to improve the whole administration of cities : for if
the mayor means well, he has the power to compel his subor-
dinates to support him ; and if he means ill, public attention
is centred upon him, and he is justly held personally respon-
sible for the acts of his subordinates.
On the other hand, it is unfortunate and demoralizing that
so little power should be left to the city legislatures. If the
state legislatures would put into their hands many of the sub-
jects now carried on under state law, the people of the city
would feel stronger responsibility. This is what is meant by
§ loi] Improvements. 213
the term "municipal home rule," — namely, the desirability
of having a community like a great city make its own ordi-
nances on matters which do not directly concern the people of
other cities or of rural districts. Executive officers ought to
be left freer in their executive duties ; the city legislature ought
to be less hampered in its work of legislation. Another im-
provement would be greater publicity with regard to the work-
ing of city governments : reports ought to be more numerous,
briefer, and clearer.
The ill effect of party system can in part be obviated by the
very common method of holding municipal elections on a dif-
ferent day from the state or national elections. This prevents
combinations and deals, and leaves people freer to vote accord-
ing to their ideas of what is good for the city. People vote
for the things that they think most important ; and if in the
long run they prefer party candidates, irrespective of municipal
issues, no one can protect them from the ill results.
Civil service reform in cities is a powerful corrective on the
party system, because, if rigorously applied, it takes away from
party managers the power of using patronage. If the minor
executive offices are filled by some other method than personal
influence, the holders of those offices are not compelled to
turn out and work for their party on penalty of dismissal, and
they and their friends are more likely to act according to their
conception of the welfare of the city.
In the long run, however, the only effective remedy for bad
government in the city, and the only guaranty for good govern-
ment, is a sentiment of civic pride : there can be no hope 01
good government if people do not care that their city is dirty,
unhealthy, has bad water, and is plundered by private corpora-
tions ; if the well-to-do people in a city do not care that their
poorer neighbors suffer. Good city government will take care
of itself when people cease to be proud of their city because it
is big, and begin to be proud because it is beautiful, clean,
healthful, has the best schools, the best police, the best fire
department, the most public-spirited officials, — when the
214 City Problems. [§ loi
people who have most of the other advantages of life insist
on the best government for themselves, their children, their
neighbors, their fellow-citizens, their country ; for in the long
run the well-to-do in city or in state get honest and effective
government, if it is a thing that they really want.
Part V.
National Government in Action.
CHAPTER XIII.
INTERNAL ORGANIZATION OF CONGRESS.
102. References.
Bibliography: M. P. Follett, Speaker (1896), 331-335; A. B. Hart,
Manual (1908), §§ iii, 112; Channing, Hart, and Turner, Guide (1912),
§§ 44, 47; F. A. Cleveland, Organized Democracy (1913), § 273; P. O.
Ray, Pol. Parties (1913), 142-144; Cyclop, of Am. Govt. (1914), I, 360;
II, 134; III, 292, 295, 371; list of aids to government documents, in
Introduction, above.
Congress in General: M. P. Follett, Speaker (1896); J. A. Wood-
'burn. Am. Republic (1916), chs. iv, v; P. S. Reinsch, Legislative Methods
(1907), chs. i-iii; F. A. Cleveland, Organized Democracy (1913), § 277;
W. Wilson, Constitutional Govt. (1908), chs. iv, v; P. O. Ray, Pol. Parties
(1913)', ch. vii; R. L. Ashley, Am. Federal State (1911), chs. xi-xiii;
J. A. Fairlie, National Administration (1905), ch. iii; H. J. Ford, Am.
Politics (1898), chs. xviii-xxi; J. Bryce, Am. Commonwealth (ed. 1910),
I, chs. x-xxi; Cyclop, of Am. Govt. (1914), Arts, on Apportionment;
Congress of the United States; House of Representatives; Senate of
the United States; Senators; Senators, Election of; W. W. Willoughby,
Constitutional Law (1910), I, chs. xxxvii, xxxviii; C. H. Kerr, U. S.
Senate (1895); W. Wilson, Congr. Govt. (1885); J. R. Tucker, Constitu-
tion (1899), I, 381-456; G. H. Haynes, Election of Senators (1906).
— Sources: C. A. Beard, Readings in Am. Govt. (1909), chs. xii, xiii;
C. L. Jones, Readings on Parties (191 2), chs. v, vi; P. S. Reinsch, Read-
ings on Am. Federal Govt. (1909), chs. v-vii; T. H. McKee, Manual of
Congr. Practice (1891); Official Congressional Directory (for each session
of Congress). The daily despatches of the Washington correspondents
give a good notion of what goes on. Notable autobiographical books,
e.g. T. H. Benton, Thirty Years' View (1854-1856); J. G. Blaine,
215
2i6 Organization of Congress. [§ 103
Twenty Years of Congress (1884-1886); S. S. Cox, Three Decades (1885);
J. Sherman, Recollections (1895); A. G. Riddle, Recollections (1885);
G. F. Hoar, Autobiography (1903); T. Roosevelt, Autobiography (1913).
The Speaker: M. P. Follett, Speaker (1896), chs. ii, iii, x, xi; A.
B. Hart, Practical Essays (1893), No. i; J. Bryce, Am. Commonwealth
(ed. 1910), I, 140-143; H. B. Fuller, Speakers of the House (1909);
Cyclop, of Am. Govt. (19 14), Art. on Speaker of the House.
Committee System: M. P. Follett, Speaker (1896), ch. viii; L. G.
McConachie, Congr. Committees (1898); Cyclop, of Am. Govt. (1914),
Art. on Committee System in the U. S.; J. Bryce, Am. Commonwealth
(ed. 1910), I, chs. xiv, xv. — Sources: Congr. Record (any typical day's
session will show the coifrse of business); T. H. McKee, Indexes to Re-
ports of Committees (1887) (Hst of Seiiafe and House reports). Consult
House Reports and Senate Reports for text of committee reports. Hear-
ings before committees are occasionally published, though not in any
regular series.
103. History of the T\nro National Houses.
To describe state and local governments comprehensively
is impossible, because there are so many types and varieties.
The national government, however, is not only more com-
pletely organized than that of any state or city, but is also a
unified system, well distributed in three departments. Of
these the most powerful is the legislative body.
The origin of Congress is to be traced back to the Second
Continental Congress, which in 1775 ^^^ ^^ act as legislative,
executive, and source of judiciary power, till a Confederation
could be organized. No other method but an equal repre-
sentation of the colonies was then practicable ; and under the
Articles of Confederation, in 1781, another Congress was or-
ganized in a single house,' each state having one vote. Seven
years' experience showed that such a body was unequal to
its manifold responsibilities, and the large communities were
restive at the equal vote of the small states. The Federal
Convention, therefore, in its earliest sessions adopted the
principle of a national legislature of two houses, and with
some difficulty, by the So-called "Connecticut Plan," hit upon
a method of representation which protected the small states
by giving them equality in one house, and the large states by
§ 103] Two National Houses. 217
giving them representation in proportion to numbers in the
other house. Thus, as a way out of a practical difficulty, the
nation returned to the English and colonial bicameral system.
Since the organization of the government in 1 789, all legis-
lation has come from two houses acting in concert ; but three
additional functions of government are performed by the
Senate alone : (i) it has power to confirm or reject nomina-
tions of executive officials by the president ; (2) it shares
treaty-making power with the president ; (3) it sits as a court
of impeachment. In all matters of legislation the two houses
have equal authority, for the special constitutional prerogative
of the House of Representatives to initiate revenue bills has
proved of little significance.
In the history of the United States, the Senate, as the smaller
house, with a longer term and with its special functions, has
usually been the more dignified, the stronger, and the more
determined body. During the first twenty-five years of the
repubhc, foreign relations were of prime importance, and the
•Senate's power over treaties was constantly invoked. It was
not till 181 1 that Henry Clay arose, the first speaker who un-
derstood how to make the House of Representatives powerful :
under his skilful management the House, from 1815 to 1825,
was the body which probably did most to initiate legislation and
to attract public attention. Daniel Webster, John C. Calhoun,
Langdon Cheves, James Buchanan, and many other active
young men won their spurs in the House; and in. the great
Missouri debates of 181 8 to 18 21 the House forced the fighting,
and compelled the Senate to come to the Missouri Compromise.
From about 1830 to 1861 the Senate was on the whole the
stronger body. In it the great triumvirate of statesmen, Web-
ster, Clay, and Calhoun, made their speeches and exercised
their influence ; and its power of confirmation of .political ap-
pointments was very important. The House was several times
nearly balanced politically, and lost effectiveness : for instance,
the effort of the House, in 1846-47, to force the Wilmot
Proviso on the Senate was unsuccessful. ; . ■
2 1 8 Organization of Congress. [§ 104
During the Civil War both houses got new powers; the
Senate, however, lost its prestige in the unsuccessful attempt
to impeach President Johnson in 1868. Since the Civil War
the Senate has in general been more powerful than the House,
because the latter body has grown too large for actual debate.
The Senate still keeps up its ancient tradition that every sen-
ator shall speak as long as he has anything to say upon the
question ; hence speeches in the Senate make more impres-
sion on the country at large. Since the Civil War, also, the
power of the speaker of the House has been greatly augmented,
with the result that individual representatives find fewer oppor-
tunities to distinguish themselves. Only an unusual speaker,
like Mr. Carlisle or Mr. Reed, can so concentrate the authority
of the House as to make head against the Senate.
As a whole, Congress has gained power ever since 1789,
not so much at the expense of the executive and judiciary, —
for both presidents and courts have well asserted their prerog-
atives, — but by the steady increase of federal functions, due
to the growth of the country, and especially to a vast gain in
the importance of matters subject to specific federal powers,
such as interstate and foreign commerce, coinage, banking and
currency, and dependencies.
104. Choice of Senators.
The two houses are differently constituted and have different
traditions. The Senate is really a continuation of the old
Congress of the Confederation, in which there was an equal
vote of states, with the great improvement that the two mem-
bers vote separately. As representing the states, the sen-
ators must be chosen by the states ; and the body within the
state designated by the constitution for that purpose is the
legislature.
So long as Congress took no action on the election of sena-
tors, each state for many years regulated that matter for'itself :
about half of them required a concurrent vote of both houses,
and about half required a joint convention. In pursuance of
§ io4j Choice of Senators. 219
the constitutional provision tliat the method of electing sena-
tors may be made or altered by Congress, a statute was passed,
July 25, 1866, for a uniform system. If on the second Tues-
day of the session each house shows a majority for the 'same
candidate, he is elected ; if not, on the next day the two houses
must meet at noon in joint session and cast a ballot, and con-
tinue to ballot every legislative day until some one is elected.
In most cases, after a legislature is elected, it is not positively
known who will be chosen senator, unless there is a state boss
who looks after such matters.
Since 1881 repeated efforts have been made to obtain a
a constitutional amendment providing for election of senators
by a popular vote in each state, a plan first suggested in 1787.
In a very few* cases the result has been reached indirectly.
For instance, in 1858 the Republican convention of Illinois
announced that, if a Republican majority were elected in the
next legislature, Abraham Lincoln would be chosen senator ;
and the Democrats made the same pledge inbehalf of Stephen
A. Douglas. The advantage of direct election would be that
unpleasant forms of influence, and sometimes of bribery, of
members of the legislature would disappear, and that no man
could be senator who had not personal popularity in the state.
The disadvantage would be that reelection would be much less
frequent ; and there is no guaranty that men would be chosen
of as high character as at present.
Besides the choice by the legislature, there is a provision
that, if vacancies occur during the recess of the legislature,
the governor may make temporary appointments till the next
meeting of the legislature and the election of a successor.
This power of appointment is very frequently exercised, and
often the man so designated is afterwards chosen by the legis-
lature. When the legislature has an opportunity to elect and
fails to do so, the Senate has since 1850 usually refused to
admit senators appointed by the governor. The state of
Delaware from 1901 to 1903 had no senators because there
was a deadlock in the legislature.
220 Organization of Congre§s. [§ 104
The qualifications for a senator are simple : thirty years old,
nine years a citizen, and an inhabitant of the state from which
he is chosen. Inhabiting does not always mean permanent
residence, for there have been repeated cases of Western state
senators who lived in New York or other states. Even the age
qualification was ignored when Henry Clay appeared as senator-
elect from Kentucky in 1806. State governorships are often
a stepping-stone to senatorships, and successful members of
the House of Representatives are frequently made senators.
In some states the legislatures choose men of no large public
experience, because they have great wealth and local power ;
and the Senate always contains many rich men; although, on
the other hand, it contains an equal number of men who have
no accumulation and little income except their small legislative
salaries.
By the constitution, each house is the sole judge of the
qualifications of its own members. This means that their
contests and disputed elections and charges of fraud are
settled by the houses when presumptive members appear and
demand seats. Occasionally entrance is refused because the
House or Senate dislikes the character of the claimant : thus,
in 1899 a representative-elect from Utah was refused a seat
because of polygamy.
The term of a senator is six years, but in four cases — Ben-
ton of Missouri, Morrill of Vermont, Allison of Iowa, and Jones
of Nevada — the service has been five full terms, or thirty
years. The likelihood that a senator will be reelected at least
once is about two to one, and the average service of a senator
appears to be about twelve years. Deaths, resignations for
private reasons, and resignations to receive cabinet or dip-
Icmatic appointments are not uncommon. The Senate is
divided into three classes, so that the term of one third of
the members expires each two years.
Power to control federal appointments of itself makes the
senator a more powerful man than the representative : he knows
Washington, knows the departments, knows the president.
§ 105] Choice of Representatives. 221
knows his fellow-senators and the leading representatives, and
hence is able to do more for a constituent, or a state, or the
public interest than the average representative.
105. Apportionment and Choice of Representatives.
The English and colonial idea of representation was that
places and interests were to send members : in England at the
time of the Revolution, counties and cities, whether great or
small, had representatives in Parliament. The New England
unit of representation was the town ; the Southern unit was
the county. One of the greatest changes in American ideas
of government came about when, soon after the Revolution,
representatives began to be apportioned by population. The
choice of members of the national House of Representatives
is based on this principle of districts of about equal population,
except that parts of two states cannot be combined to make a
district.
The system of apportionment has been subject to three dis-
turbing influences, (i) The three-fifths' ratio for slaves, by
which, from 1789 to 1865, in allotting members 100,000 slaves
counted as much as 60,000 freemen. Since no slave voted,
this gave the white people of the South relatively more influ-
ence than the white people of the North in constituting the
House of Representatives. On the other hand, the Southern
states had less representation in proportion to their total pop-
ulation ; and hence the Thirteenth Amendment in 1865, which
destroyed the category of slaves, thereby enlarged the relative
number of Southern representatives.
(2) The unequal growth of the population. The constitu-
tion provides, therefore, that there shall be a census every ten
years, in order that there may be a suitable reapportionment.
(3) The fact that electoral districts are not made by Con-
gress but by the state legislatures, though the constitution has
no specific clause on that point. In the early days of the re-
public, it was not uncommon to elect all the members from a
state on a " general ticket " ; but as the parties became sharply
222 Organization of Congress. [§ 105
divided, this meant that the majority in the whole state shut
the minority entirely out. The gerrymander is frequently used
by state legislatures in making congressional districts. The
subjoined illustration, showing the districts in South Carolina,
will make clear how little attention the states pay to the funda-
niental requirement that the federal districts shall be composed
of contiguous territory, and shall be as nearly as may be equal
in population. The South Carolina districts were skilfully
arranged so as to throw large blocks of the negro vote together ;
and the population of the districts in 1890 varied from 134,000
in the first to 217,000 in the seventh.
In assigning the members, there has been a constant ten-
dency to increase the size of the House ; only once, after the
census of 1840, was the number diminished. The apportion-
ments have been as follows : (1789) 65 ; (1792) 105 ; (1802)
141; (1811)181; (1822) 212; (1832) 240; (1842) 223;
(1852) 234; (1862) 241 ; (1872) 292; (1882) 325 ; (1891)
356 ; (1901) 386. One of the reasons for the increase is that
no state likes to have fewer members than it had in the previous
Congress ; another reason is that, even with the largest member-
ship, the average number of inhabitants to a member of Con-
gress has risen from 33,000 in i 793 to about 194,000 in 1903.
In reassigning members, all small states get at least one :
thus Nevada, with an eighth of the population of Vermont, has
half as many members. The next step is to fix the total num-
ber of the new House, and to subdivide it into the population
of each state ; the quotient is the number of members assigned
to each. The trouble almost always comes over the fractions :
Congress tries to give an additional member to every state that
has a fraction more than half the quotient. The ratio in 1900
was about 194,000 : a state with 875,000 inhabitants gets
five members; a state with 1,060,000 still has five members;
a state with 1,070,000 has six members. Wherever a state
legislature has neglected to redistrict in order to provide for
new members, the additional members may be chosen from
the state " at large," — that is, by vote of the whole state.
A GERRYMANDERED STATE
§105] Choice of Representatives. 223
The qualifications for members of the House are twenty-five
years of age, seven years of citizenship, and inhabitancy in
the state from which chosen. To these quaHfications, as in
the case of the Senate, the states cannot constitutionally add
anything ; but there is an unwritten law that the represen-
tative must live not only in the state, but in the district from
which he is chosen. This is not an invariable principle : in
a city like Greater New York, which sends seventeen con-
gressmen, a man living in an up-town district may represent
a down-town district; in 1890 Mr. William Everett ran for
Congress from the Lynn district of Massachusetts, although
he lived in the Quincy district.
The reason for this unwritten rule is the same as for mem-
bers of the legislature and of the city council : people think
that they will be more directly represented by a man who
lives among them. In England, France, and Germany a man
may stand for any district which chooses to elect him ; thus
young men of promise enter public life, and a man of emi-
nence who loses his own district may get an election from some
other constituency. The effect in America is to drive out of
the House a man who happens to live in a district in which
the majority are not of his party. The American system fur-
ther leads to understandings between counties in a congres-
sional district that county A shall have the member this time,
county B two years hence, county C four years hence ; and
thus reflections are less frequent.
The voters for members of Congress are the same as the
voters for members of the more numerous branch of the state
legislature ; that is, the national suffrage is not the same in all
the states. The Fourteenth Amendment provides that, for
any state which denies the suffrage to male citizens except
for crime, the basis of representation in the House of Rep-
resentatives shall be proportionally reduced. This provision
has never been applied ; it would require a special act of
Congress to carry it out, and would affect the Northern states
which have educational qualifications, as well as the numerous
224 Organization of Congress. [§105
Southern states which have recently disfranchised those who
cannot show to the satisfaction of election officers that they
can read or understand the constitution. It is well to throw
the responsibihty for regulating and protecting the suffrage
upon the states : a separate state and national suffrage would
lead to endless friction ; and if state governments undertake,
however unjustly, to deprive some of their citizens of votes, it
is in practice almost impossible for the federal government to
maintain the franchise.
For many years the elections for members of the House
were held at various dates, and sometimes lasted for several
days within one state ; but the constitution gives to Congress
distinct power to make or alter regulations as to time, place,
and manner of holding elections. Three sets of acts have been
passed, of which two are still in force, (i) In 1842 Congress
prescribed that thenceforth all members should be chosen by
districts, and not by general ticket. (2) By acts of February
28, 1 87 1, and February 2, 1872, Congress provided for elec-
tions by ballot, and for the choice of all members of the House
on the Tuesday succeeding the first Monday of November ; by
an amendment to the last statute, a few states which hold early
elections are still allowed to choose congressmen at a little
earlier time. Should the states defy the provision for choice
by district or on a fixed day, the remedy would be for the
House to refuse to seat members so chosen. (3) The third
series of acts were those of May 2u, 1870, and February 28,
1871, providing for the control of elections by federal officials
in the South and in the Northern cities, especially in New York ;
these acts were repealed in 1894, since which time the United
States has taken no responsibility for the conduct of elections.
Although the intention is that congressional districts shall
be about equal in population, there is a marvellous difference
in the votes cast in different states. A Mississippi district,
with 143,000 population, in 1890 cast 2,800 votes; an In-
diana district, with 129,000 people, cast 9,000 votes; a South
CaroHna district, with 2 1 7,000, cast 1 3,700 votes ; a Massachu^
§ I05] Choice of Representatives. 225
setts district, with almost tlie same population, cast 29,000
votes. For many years the New England states required a
majority of all the votes cast ; but Rhode Island, the last state
to stand by the system, gave it up in 1894, and the states now
all accept an election by plurality ; hence members of Congress
are frequently chosen by a third or less of the votes cast, which
may represent not more than a fourth of all the voters ; but
the alternative is a second or a third election, which tires
people out. The governor cannot appoint members to fill
vacancies in the House, but must call a special election ; the
result is that there are almost always a few vacant seats.
The members of the national House of Representatives are
in general men of intelligence and character ; most of them
are lawyers ; there are also many business men, and an occa-
sional doctor or minister. Most of the members elected have
seen service in the state governments, very often in the state
legislatures. Akhough their term is two years, the likelihood
of being reelected even for one term is distinctly less than that
of a senator. In the first place, a man cannot be reelected
without being renominated ; or, even if he desires to return,
he may have offended important constituents, or he may have
entered into an agreement that he would retire at the end of
one term, or he may fail to " keep up his fences," as the phrase
goes ; or, even if nominated, there may be a political upheaval
in his district so that he loses his seat. The average term of
service in the House is not more than four or five years ; yet
Joshua R. Giddings represented the same district from Ohio
continuously from 1839 to 1861, and Samuel J. Randall sat
for Pennsylvania from 1863 to 1890. Although some mem-
bers of the House are not scrupulous about the use of politi-
cal power, it is a body little subject to corrupt influence ;
since the Credit Mobilier investigation of 1872, which unfor-
tunately involved some innocent persons, there have been no
great scandals in the House. The members of Congress as a
body will compare favorably with any assemblage of lawyers
or doctors or ministers or college professors in the land.
15
2 26 Organization of Congress. [§ io6
106. Meetings of Congress.
Under the constitution, Congress meets annually, and may
be summoned in extra session by the president at other times.
Ever since 1789 the annual meeting has been on the first
Monday in December. In fourteen instances Congress has
been summoned by proclamation before the regular time, —
for instance, on July 4, 1861, to make preparations for the
Civil War. By special statute Congress met on March 4,
1867, the purpose being to keep a watch on President John-
son; the act resulted in special sessions in 1869 and 187 1,
but was speedily repealed when President Grant came into
office in 1869, and has never since been renewed.
A consequence of this flexible system of membership is that,
since a Congress expires on March 4 in the odd year, and the
new Congress may be called at any time thereafter, it is
necessary to elect members of the House in the November
election beforehand. If there be no called session, the mem-
bers then chosen will not assemble until December, thirteen
months later ; and hence a wave of popular feeling is often
spent long before Congress is organized. This is in sharp
distinction to the practice of most state legislatures, which
begin only a few weeks after the election of new members.
One result of the long postponement is that a new president
commonly has from March 4 to the following December
to get his administration in order before Congress comes
together.
Either house may be called separately if necessary, but in
practice only the Senate is so called, and that in the first
weeks of the presidency, to confirm the nominations of the
new cabinet. By the constitution, neither house can adjourn
for more than three days without the consent of the other ;
but the two houses usually agree beforehand on a day when
they will adjourn.
The actual length of the sessions of Congress depends on
circumstances. In every odd year Congress expires at noon
§ I07] Meetings. 227
on March 4, and hence the so-called "short" session is ordi-
narily about four months, interrupted by the holidays. The
long session might in theory last from December to the next
December ; but Congress usually adjourns in June, July, or
August. The longest session on record is that of 1890, when
there was no adjournment until October i, after 240 days of
session.
There is nothing in the constitution to show when a Con-
gress expires ; but, since the day fixed by the old Congress
for the organization of Congress was Wednesday, March 4,
that day at noon has been the dividing-line between two Con-
gresses. It is not uncommon to set back the clock, and thus
to transact business for a few minutes or hours after the real
time of adjournment. All unfinished legislative business then
perishes : bills which have passed one house and are pending
in the other cease, and must be renewed at the next session
in order to get a standing.
Congress met from 1789 to 1791 in New York; from 1791
to 1800 in Philadelphia; since 1800 the place for the meet-
ing of Congress has been the national Capitol in Washington.
The Capitol is under the control of the two houses, which
provide for its policing and subdivide its rooms at their con-
venience. The organization of the Senate is permanent ; the
House is entirely newly elected, and must be called to order
by the clerk of the preceding House, and only persons who
appear on his roll are entitled to seats. On one occasion, in
1839, when the House was very close, the clerk practically
dictated its organization by refusing to seat five persons who
had certificates from the governor of New Jersey ; and it was
several weeks before the House could be organized.
107. Privileges and Obligations of Members.
Membership in Congress carries with it, not only prestige
and opportunity, but substantial benefits and the performance
of duties. In the first place, every member of Congress draws
a salary. The House of Commons and most European parlia-
228 Organization of Congress. [§ 107
ments are unpaid ; but the constituents of some colonial assem-
blies paid their members, and from the earliest organization of
a Continental Congress the state legislatures made allowances
to their members in Congress. The constitution provides
that both senators and representatives shall be paid out of
the federal treasury. From 1789 to 1815 the compensation
was six dollars per diem; from 181 7 to 1855 it was eight
dollars. The actual number of days during two years' service
was probably never more than 300, making an average salary
of less than $1,200 per year. On March 19, 1816, an act
was passed for a salary of $1,500 per year, which was repealed
within twelve months on account of a terrible storm of popular
opposition. In 1855 a salary of $3,000 was voted, which was
raised to $5,000 in 1865. In 1873, the last day of the session,
an act was passed raising the salary to $7,500, thereby granting
a bonus of $5,000 to every senator and representative. Again
there was a perfect storm of public disapproval ; and several
members of Congress, among them James A. Garfield, refused
to touch what they considered a fraudulent income. A few
days after the begmning of the next session the law was
repealed, and the salary was restored to $5,000 a year, where
it now stands. With the present membership of Congress,
this involves the payment of over $2,500,000 a year for salary
and mileage.
Mileage, from 1789 to 18 15, was six dollars for every twenty
miles of travel; from 181 7 to 1865 it was eight dollars for
every twenty miles, or forty cents a mile; from 1865 to the
present day it has been twenty cents a mile. Mileage is
granted for one round trip in each session; but it is very
much in excess of the actual cost of travel at present, and
members of Congress who have railroad passes find it a clear
payment. It is estimated tliat the allowed mileage about pays
the fares of a congressman, his wife, and three children.
Members from very distant st:ites have sometimes drawn an
enormous mileage : there was a time when the shortest route
from Oregon was about 5,000 miles, and the fortunate member
drew $2,000 for his round trip.
§ lo;] Privileges of Members. 229
Another privilege of members of Congress is tlieir post-
office frank, which with some brief interruptions has lasted
ever since 1789. It was sometimes abused in early days,
when letters were expensive and before the express service
was developed : members of Congress are said to have sent
home their washing to distant states. At present the frank-
ing privilege to a busy member of Congress, though in-
tended to apply only to official letters, saves him about ^300
a year.
Another use of the word "privilege" covers the protection
of members of Congress from arrest, in all civil and most
criminal cases, while on their way to and from a session of
Congress, or in Washington during its continuance. Still
another privilege is the right of a member to be free from
responsibility anywhere else for words spoken in his congres-
sional house : no member can be prosecuted for slander or
libel for anything said in debate.
The first official duty is that of being present at the meetings
of one's house. The pressure upon the time is so great, and
the amount of routine business so large, that many faithful
members are not always in their seats while the sittings are in
progress. In fact, they are not always in Washington, for they
may have private business to look after at home ; though it is
expected that a member of the House will not leave the city
without notifying the speaker. As election approaches, mem-
bers are very impatient to get home and look after their
"fences," — that is, to make preparations for a renoraination.
Commonly, when a member wishes to be absent, he arranges
with some one in the opposite part for a "pair" on all party
questions ; that is, since neither votes, no majority is affected.
Pairs are regularly announced in the voting lists.
While the sitting is going on, members may be in committee
rooms, though committees are ordinarily not allowed to meet
at that time ; or they may be in a lobby talking things over
with other members or with constituents. If any member calls
the attention of either house to the fact that less than one half
230 Organization of Congress. [§107
of the total number (that is, 46 in the Senate and 194 in the
House) are present, business is stopped until a quorum can be
brought in, and pages are sent out for members. When fili-
bustering or night sessions are going on, a number less than a
quorum may send out the sergeant-at-arms to bring in mem-
bers wherever found, a procedure involving much confusion.
The rules of the House require that a member shall vote unless
formally excused ; but John Quincy Adams in 1832 set the
precedent of refusing to vote, and since that time no member
has ever been disciplined for that offence.
Another obligation is to keep order, a duty enforceable by
votes of censure and other like penalties, and by the right of
each house to expel members on a two-thirds vote. The use
of personal and abusive language, acts or threats of violence,
unseemly or treasonable expressions, may be visited with cen-
sure, but never by suspension for limited periods from the
privileges of the House. Probably either house might imprison
one of its own members, though there is no such case recorded.
Expulsions have been few: the attempt was made in 1837,
and again in 1842, to expel John Quincy Adams from the
House for speaking his mind on slavery; a senator from Indi-
ana was expelled from the Senate in 1863 for treasonable utter-
ances ; and a member from South Carolina in 1870 for selling
West Point cadetships. Expulsion, which requires a two-thirds
vote, must be distinguished from refusal to receive a member
who claims to be elected but has not yet taken his seat, which
requires only a majority.
Something might be said of the unwritten duties of members
of either house, — the duties of attending committee meetings,
and looking after the public interests by voting for good
measures and against bad ones. Some years ago, one member
of Congress, not otherwise very efficient, got a great reputa-
tion and the nickname of "the Great Objector," by protesting
against every proposal to increase appropriations. In general,
the members of the House and Senate fairly represent the
public opinion of their constituents ; and to represent one's
§ io8] Obligations of Members. 231
constituents in open and honorable measures for the public
good is one of the most important duties of the legislator.
108. Speaker of the House.
The officers of the two houses, aside from their respective
moderators, are not important. The secretary of the Senate
and clerk of the House are the recording officers, each with a
staff of subordinates. Each house has a sergeant-at-arms, a
postmaster, and a superintendent of documents. The selection
of minor officials is honeycombed with politics, and has some-
times led to queer arrangements by which one set of men do
the work and divide the salary with another set who have the
nominal appointments. The doorkeepers have some influence
because of their opportunity to bring constituents and mem-
bers together. In 1875 a doorkeeper drew down upon him-
self the laughter of the nation by writing a letter (which became
public) containing the boast : " I have more invitations to
frolics with members and senators than any man in Washington.
I am a bigur man now with the members than old Grant."
The presiding officer of the Senate is the vice-president of
the United States. Several have won a reputation for dignity
and skill in that position, especially Thomas Jefferson. In
addition, the Senate chooses a "president pro-tem," who takes
the chair when the vice-president is absent, or when, as has
five times happened, the vice-president becomes president
through the death of his predecessor. Either vice-president
or president pro-tem may vote on a tie ; but each acts only as
a moderator, and has no special power through his office.
Quite different is the status of the speaker of the House of
Representatives, who is always chosen out of the membership,
and has come to be second in political dignity only to the
president of the United States. The speaker of the House of
Commons in England has for two centuries been simply an
impartial presiding officer ; but in the colonies the speakers of
the assemblies were often heads of the opposition, and the
practice was early followed out by Congress. The second
232 Organization of Congress. [§ 108
speaker, Jonathan Trumbull, elected in 1791, was intended to
be a party man ; the first great political speaker was Henry
Clay, elected in 181 1 and five times chosen thereafter. From
that time on, whenever the speaker has been a man of strong
personal character, he has always been one of the greatest
forces in American government.
The speaker is always a party candidate, and represents his
party in the House. The election of speaker has of late years
been practically decided before Congress met; but earlier
there were several exciting struggles. In 1839, for instance,
it took more than a week to elect Speaker Hunter; in 1849,
after 59 ballots, no speaker was elected and the House agreed
to choose by plurality, whereupon Howell Cobb was elected ;
in 1855 the House was so split that it took two months to elect
a speaker, Nathaniel P. Banks finally receiving a majority ; in
1859 two months were again needed, resulting in the choice
of Pennington.
The speaker, when once chosen by a majority of the mem-
bers of the House, becomes more powerful than the majority
which chose him ; in some cases he is a political Frankenstein,
more powerful than all the rest of the members put together.
His power comes from the gradual evolution of three great
functions.
(i) The speaker has the right to appoint committees, a
power which he has held since January, 1790. As the stand-
ing committees grew up and legislation was parcelled among
them, this function became more and more important ; for no
measure can come before Congress that is not reported on by
a committee, and hence the make-up of the committee may
determine the fate of a great bill. Furthermore, members are
eager for the committee appointments, which carry responsi-
bility and opportunity ; and the man who designates them is
therefore powerful.
(2) Another of the speaker's functions results from the fact
that he has the right to recognize what member is entitled to
the floor. Since no motion can be introduced, no bill re-
§ log] Speaker of the House. 233
ported, no speech made, except by a member recognized by the
chair, the speaker may practically cut off any member's oppor-
tunity for distinction. From this point it is but a short step
for the speaker to refuse to recognize members becaus^ he does
not like them : there have been repeated cases of members
practically boxed up during a whole session, or during their
whole term, because the speaker somehow could not see them.
In fact, during the last fifty years the speaker has been in the
habit of keeping before him a memorandum of members who
have asked beforehand that they be recognized when the time
came.
(3) The speaker has even greater power over legislation, by
his right to state and to put questions and to decide points of
order ; through this power he controls the formal business of
the House, and exercises great personal influence. He expects
to know what a member is going to introduce before he will
recognize him ; and the speaker frequently refuses to recognize
one of his own party if he tries to make an important motion
which has not been agreed on by the conclave of leaders. No
prudent member of Congress thinks of getting a bill through
unless the speaker is so far satisfied that he will permit it to
come to vote ; that is, the speaker practically has a veto power
on every proposition in the House, if he chooses to exercise
it. So well is the speaker's power understood, that wise out-
siders who desire legislation not only seek to interest members
to introduce their measures and to vote for them, but also plead
with the speaker to permit them to pass. If it be asked why
the House does not sometime rise up and depose the speaker
by a majority vote, the answer is that by long experience mem-
bers have learned that they cannot get forward at all without
pulling together, and that if they put down one speaker they
must set up another who will exercise the same powers.
109. Congressional Committees.
Next to the speaker, the most powerful influence in Congress
is the committee system, which is strongly intrenched in both
2 34 Organization of Congress. [§ 109
the Senate and the House. As soon as a speaker is elected,
he sets to work to make up his list of appointments, in which
he is freely advised by members who wish to get upon par-
ticular committees. As there are 386 members of the House,
and only something like 600 committee places, the process is
not easy or swift. First of all, the committee places are roughly
divided in proportion to the two parties, all the House chair-
manships now going to the majority party ; then old members
are, so far as possible, continued on the committees on which
they have served ; then there has to be a reasonable recogni-
tion of the different sections of the Union ; then comes the
personal pressure of members who want a particular committee,
and especially a committee that has something to do. The
speaker shuts himself up in his room, but eager members and
their friends reach him ; and he sometimes flies from Washing-
ton for a few days. When the list is announced, many party
friends and still more of the minority members are sure to be
disappointed.
In the Senate the committees are appointed in a less respon-
sible fashion. Nominally the choice is by ballot ; practically
the Steering Committee of the majority decides how many
places the minority ought to have ; occasionally an opposition
senator is left as chairman of a committee. Then the Steering
Committee of the minority divides up the places of that sec-
tion according to its judgment. Meanwhile the majority
conclave has made its assignments, and the two slates are then
brought together and voted for on a nominal ballot. As two
thirds of the Senate always hold over, and as half of the other
third will probably be reelected, committee changes are few.
The Senate committee places are relatively more numerous
than the House, and the principle that distinguished men
gradually come to the headship of committees is more distinctly
established.
All the important committees have rooms for meeting in or
near the Capitol. Since many of them meet seldom, and some
not at all, the use of the room is considered the perquisite of
§ 109] Congressional Committees. 235
the chairman of the comiTiittee, who also has a committee
secretary paid by Congress. The sessions of the committees
are held under the chairmanship of the first person named in
the official hst, for congressional committees do not choose
their own chairmen.
The sessions of the committees are popularly said to be held
in secret, which is also the case with sessions of a church
-vestry or of an executive committee of a scientific association ;
in fact, ordinary committee proceedings are easy to learn by
any one who is interested. Committees meet from day to day,
and often the most laborious part of a member's service is his
committee work. Sometimes as many as a thousand bills are
referred to a single committee in a session ; and the great
committees on commerce, manufactures, public lands, post-
offices, pensions, war, navy, public buildings, Indian affairs,
rivers and harbors, and especially the House Committee on
Ways and Means, which originates financial measures, spend a
great deal of time and trouble over their bills. A somewhat
unusual practice is the holding of public sessions, at which
interested persons may appear and express their minds : for
instance, when a tariff bill is on the stocks, those interested in
a particular industry appear and submit suggestions. Occa-
sionally reports of hearings are printed and may be had by
interested people. Committees frequently carry on investiga-
tions and summon witnesses, who are heard in public. The
decisions of the committees are all made in private session,
usually without the presence of the secretary.
The purpose of the committee system is to subdivide the
great field of legislation which belongs wholly to Congress, so
that each division may receive due attention. Congress must
provide for the improvement and extension of the various
branches of the public service ; it must keep up a code of
criminal law ; it regulates foreign commerce and prepares for
war and peace ; in addition, an unreasonable amount of petty
legislation for particular individuals is thrown upon Congress.
The result is an enormous mass of work to do ; and in these
236 Organization of Congress^ [§ 109
conditions the committees are a sifting machinery, without
which both houses would be simply buried under bills. The
result, however, lacks unity : the speaker appoints the com-
mittees, but he cannot remove members because they do not
follow his advice ; the committees act independently of each
other and often oppose each other. What, for instance,
should be done with a bill providing that the express business
of the country be made a monopoly for the post-office depart-
ment? Bills might be reported on that subject by the com-
mittee on post-ofifices or the committee on commerce ; and
very likely each chairman would try to keep the other chair-
man from reporting.
The lack of harmony between committees is especially seen
in financial matters. For example, up to 1865 one committee
brought in all the bills for the expenditure of the government ;
but in 1903 there are eight committees, each of which reports
its own bills, and no one of which is responsible for all the
expenditures of the government. In the second place, since
1865 ^he committees to report bills for expenditures have not
been identical with the Ways and Means Committee, and
hence Congress is asked to spend money by those who have
no responsibility for providing new sources of revenue. Sub-,
stantially the same holds good in the Senate, although the
appropriation bills there are not so much broken up. The
existence of the committees makes impossible an orderly and
systematic national finance, a difficulty that is to some extent
met in the House by the speaker, whose power is such that
he can insist on changes in the finance bills; and in the
Senate by the steering committee, which tries to agree on a
policy with regard to revenue and expenditure.
CHAPTER XIV.
CONGRESS AT WORK.
110. References.
Bibliography: E. C. Mason, Veto Power (1890), 219-221; M. P.
Fdllett, Speaker (1896), 331-335; A. B. Hart, Manual (1908), §§ iii,
112, 214, 215; Cyclop, of Am. Govt. (1914), II, 634; III, 238, 615. See
also references to ch. xiii above.
Debates and Proceedings: J. Bryce, Am. Commomvealth (ed.
1910), I, chs. xvi-xxi, App. 687-695; M. P. Follett, Speaker (1896), chs.
iv-ix; E. C. Mason, Veto Power (1890), ch. iv; E. McClain, Constitutional
Law (1910), §§ 33-35; S. W. McCall, Business of Congress (1911);
D. A. S. Alexander, History and Procedure of House of Representatives
(1916); W. W. Willoughby, Constitutional Law (1910), I, ch. xxxix; E.
C. Mason, Congr. Demands for Information (Am. Hist. Assoc, Papers,
V, 367-375, 1891); Cyclop, of Am. Govt. (1914), Arts, on Party Organi-
zation in Legislative Bodies; Rules of Congress; W. Wilson, Congr.
Government (1885), chs. ii-iv. — Sources: J. H. McKee, Manual of
Congr. Practice (1891) (Congressional forms); A. C. Hinds, Precedents of
House of Representatives (1907-1908); Congr. Record (1873-) (debates);
J. A. Garfield, Century of Congress, in Works (1883), II, 463-489; C. A.
Beard, Readings in Am. Govt. (1909), ch. xiv.
Legislation: Cyclop, of Am. Govt. (1914), Art. on Veto Power;
E. McClain, Constitutional Law (1910), § 36. — Sources: House Journal
and Senate Journal, for formal* proceedings; text of annual statutes,
Statutes at Large; J. A. Mallory, U. S. Compiled Statutes (1916); sum-
maries of current legislation are given in A^n. Year Book; Lnternational
Year Book; and Pol. Sci. Quar. See also pp. xxx-xxxiii above.
111. Open and Secret Sittings.
The meetings of Congress have three purposes, — to record
action taken, to discuss measures, and to come to a vote.
During the session the two houses sit at such times and for
such a number of days each week as seem good to them.
237
238 Work of Congress. [§ m
The session of 1 899-1 900 lasted 185 days, of which 24 were
Sundays, 16 were days on which neither house was sitting, and
13 were days on which only one house was sitting. Ordi-
narily the houses meet at noon, and sit for four or five hours.
Congress occasionally sits on Sunday, in which case the pro-
ceedings are entered on the record as of the day previous.
Evening sessions are unfavorable either for discussion or for
intelligent voting ; and the all-night sessions sometimes held
when filibustering is going on, are scenes of confusion.
There is no constitutional provision that the houses shall
sit in public : in its first two years the Senate invariably held
private sessions, so that we should know little of the detail of
its earliest discussions but for the diary of Senator Maclay of
Pennsylvania. In i 793 the Senate opened its doors for ordi-
nary legislative business, and in 1802 permitted a stenographic
reporter ; but whenever a majority votes to " go into execu-
tive session," the spectators are ejected and the doors closed.
Senators are bound in honor not to divulge the proceedings
of this executive session, which is almost invariably devoted
to nominations for office and to treaties. All the officers are
sworn to secrecy, and even the journal of these sessions is
separately and privately kept ; nevertheless, the newspapers
almost invariably report the next morning any important
action or debate in the secret session. The executive journals
up to 1869 have been published. The House has sometimes
sat in secret, as for instance in 1807, at the time of the Burr
insurrection; and in the history of the United States there is
one secret statute, the act of 181 1 for taking possession of
West Florida.
About 1800 some enterprising newspapers began an ex-
tended report of the open debates. In 1833 ^^^ Congres-
sional Globe — a private venture — began to publish verbatim
debates, and after 1846 Congress regularly subscribed for
several thousand copies. In 1873 was established the official
Cottgressional Record, conducted by paid officers of Congress,
intended to be a verbatim report of what is actually said on
§ 112] Sittings. 239
the floor. These reports are often toned down by the ste-
nographers, and every member has a right to revise his own
speeches ; hence pungent expressions are often struck out.
In addition to this record of debates, each house is under the
constitution required to keep a journal, which is simply a dry
statement of the introduction of measures and amendments,
and of the votes upon them, published annually.
The ordinary business of both houses goes on in the midst
of spectators. The original Capitol had small rooms for both
House and Senate ; but when the great wings were constructed
in 1859, the room of each house was surrounded by sloping
galleries on four sides. The House galleries seat 2,500 people,
the Senate galleries 1,200; and when there is a lively debate
or an interesting speech, the galleries may be crowded. Priv-
ileged visitors are accommodated on the sofas behind the
desks of the members.
The English Parliament and House of Lords are fitted with
benches, accommodating not half of the members. Members
of Congress have each a desk ; but when members cannot
easily hear what is going on, they are likely to spend their
time in reading or writing letters, or in conversation with their
neighbors. In both houses, routine business frequently goes
on with not a dozen members paying attention, each party
having a watchful leader who takes care that nothing shall be
done by stealth. Under such circumstances, the give-and-take
of debate is diminished. Senators can hear each other ; but
in the House the space is so large that few voices carry across
the room.
112. Rules and Party Management.
One of the triumphs of the Anglo-Saxon race is its develoD-
ment of a system of parliamentary procedure. The French
Chambre is a noisy body, in which order is supposed to be
secured by ushers with chains of office around their necks,
but in which members are frequently interrupted by howls of
derision that drown their voices. Though disorder is not un-
240 Work of Congress. [§112
known in the English Parliament and in Congress, it is uncom-
mon, because they have regulations intended to give every
speaker a fair chance. Simple rules of order were employed
in the colonial assemblies, in the Continental Congress, and in
the Congress of the Confederation ; and with the organization
of the two houses in 1789 began a new development of par-
liamentary law. Thomas Jefferson, while vice-president from
1797 to 1 80 1, wrote his invaluable treatise, commonly called
Jefferson's Manual, which assembled and classified the prin-
ciples usually observed in England and in the colonial and
state deliberative bodies ; and to this day Jefferson^ s Manual
is the standard of parliamentary law in both houses of Con-
gress, unless modified by distinct rules.
By the federal constitution, each house has the power to
" determine the rules of its proceedings." The Senate is a
more conservative body than the House, and is continuous ;
and therefore it alters its rules less often and less radically
than the House. The purposes of the rules in both houses
are simple : to allow any member to introduce measures ; to
give the majority the power to determine what measures shall
come up for debate and vote, and in what order; to give
every member a fair chance to express his mind and to offer
amendments on pending questions ; to secure good order and
quiet. In course of time, as business has increased and as
the members of both houses have grown more numerous, and
especially as committees have increased in number, only a
part of the business which members desire to bring forward
can possibly be discussed ; hence there is a constant pressure
to get the time of the House. Individual members want to
introduce resolutions and amendments and to make speeches ;
committees want to get their measures reported to the House
so that they may be considered and passed ; party managers
want to avoid questions that may hurt their party, and to bring
to a vote questions to which the party is committed.
The rules have now grown so numerous — forty sections in
the Senate, filling thirty printed pages — that only those who
§ 112] Rules. 241
are in the habit of using them daily understand just how to
bring up or to side-track a motion. New or slow members
are therefore at a great disadvantage, and the houses often get
so tangled up by their own parliamentary law that they cannot
reach preferred measures. In 1842, for instance, a resolu-
tion to censure Joshua R. Giddings of Ohio took such a form
that the speaker ruled that Giddings could not, under the rules
of the House, speak in his own defence. The speaker or,
if the speaker be not in the chair, the speaker pro-tem, or
the chairman of the Committee of the Whole, has the power to
apply the rules ; and though any decision on parliamentary
law may be overruled by a majority vote of the House, such
action is unusual. It is possible, therefore, for the presiding
officer to apply the rules so as to cut off or to extend debate,
to prevent or to allow a vote ; and he may deliberately use
that authority for party purposes. More often, however, on
the spur of the moment he is obliged to decide complicated
questions involving the precedents of many years ; and the
fairest speaker may make mistakes.
The rules of the House expire with the House ; it is com-
mon, however, at the beginning of a new Congress to readopt
the rules of the preceding House, and afterwards to make such
amendments as may be necessary. The constitution makes a
" majority of each house " — that is, a majority of all the
members — the quorum necessary to do business. For many
years the recognized method of finding out whether a majority
were present was to call the roll ; but it had grown to be a
custom for the minority to sit silent under roll call, so that if
some of the majority were absent no quorum would appear.
On January 30, 1890, a test vote showed yeas 161, nays 2, not
voting 165 ; whereupon Speaker Reed directed the clerk to
enter as " present " (and therefore making a quorum) some
of the silent members whom he saw sitting before him. The
majority then made new rules, under which the speaker had
the definite right to count a quorum. In 1893 a new speaker.
Judge Crisp, was endowed with substantially the same powers
16
242 Work of Congress. [§112
by the former minority, and they have been continued ever
since.
Since i860 there has been a House Committee on Rules;
the speaker is chairman, two members are the principal leaders
of the majority on the floor, and the remaining two members
are the principal leaders of the minority. On routine matters
the committee sits as a whole ; on really serious questions the
three majority members constitute the committee. Since 1889
the committee has by various steps acquired the parliamentary
right to "bring in a rule " ; which means that it may at any
time, even when a member is speaking, make a report which
(after one motion to adjourn has been voted down) must
forthwith be voted upon. These so-called "rules" direct that
the House shall take a specified bill into consideration, or shall
come to a vote at a specified time; that is, these three men
practically decide what shall be the order of business ; and in
the pressure on the time of the House, the most important
propositions will probably not be brought to a vote if they
refuse to " bring in a rule."
Thus within the last fifteen years has slowly developed a
guiding principle for the debates of Congress. The speaker
and two members, one of whom is usually the chairman of the
Ways and Means Committee, assume the same kind of leader-
ship that in England is taken by the ministry. Since they can
answer only for the lower house, the complete working-out of
the system requires what is called the " Steering Committee,"
— an unofficial conclave of members of the Senate and the
House, especially the three majority members of the Com-
mittee on Rules. As guides to the majority, the Steering
Committee practically decides what measures to press to a
vote and what measures to drop ; from this it has been a
short step for it also to decide what kind of party measures
shall be introduced, and what shall be the text of those
measures. Thus, by a roundabout, inconvenient, and rather
irresponsible method, Congress has reached the same point as
Parliament, — namely, that a committee which has the con-
§ 113] Party Management. 243
fidence of,the majority of the members shall draft and present
measures for their action. The main difference is that the
Senate is as strong as the House, not an unequal partner like
the House of Lords ; and it is a work of some difficulty to
keep the majority in both houses in hne on questions of
policy.
113. Parliamentary System and Congressional System.
The English parliamentary system and the so-called " con-
gressional," or committee, system are fairly rivals in represen-
tative government. The British system has been followed
in France, Italy, Belgium, Denmark, Sweden, and to some
degree in Austro-Hungary ; parts of the congressional system
are followed in Germany and Switzerland. The main differ-
ences between the two involve the relation of the legislative
with the executive, and the preparation of legislative measures.
Many critics of American government hold our system inferior
on both counts to the English responsible ministry, which is
in effect a joint committee of the two houses, numbering about
nineteen and possessing the confidence of the House of Com-
mons. The ministry takes charge of both the executive and
the legislative business of the English nation : the different
ministers are heads of executive departments, the details of
which are carried on by permanent chiefs ; and at the same
time the ministry as a whole is a board for deciding on the
executive policy of England. The ministry as a whole also
decides what legislation shall be submitted to Parliament,
drafts bills, fixes the order in which measures shall come up,
and agrees on the attitude which the government will take on
amendments offered in Parliament. If the ministry — or any
member of it — is out-voted on any serious question, it forth-
with resigns ; hence its supporters must squarely back it up.
Under the congressional system, the executive business is
nearly all out of the hands of Congress, because conducted by
a president elected for four years, not affected by majorities
against him in Congress, and appointing directly or indirectly
244 Work of Congress. [§114
all subordinate officials. The chieftains of the majority in
Congress have no control over executive matters ; in like
manner, the president and his cabinet are not responsible
for legislation, and cannot introduce official measures. On
the other hand, the president knows that he has four years
to carry out his policy; he is therefore less subject than the
English prime minister to temporary currents of public preju-
dice, and he is not obliged to make concessions in order to
remain in office. The relation between the executive and the
legislative is much closer than appears on the surface ; for,
besides the president's official and unofficial influence over
legislation, the members of the cabinet appear before com-
mittees of the House and Senate to urge the introduction
and passage of measures which they think desirable. The
subdivision of public business among standing committees has
many serious drawbacks, but it is not a necessary part of the
congressional system.
In the long run, the congressional system works about as
well as the parliamentary, and in some respects it works
better ; for, where there are three parties under the parlia-
mentary system, it is difficult to keep up a stable administra-
tion. France during the last thirty years has had about forty
ministries. In the United States the executive goes on steadily
and undiminished, even if no party has a clear majority in
the House or the Senate.
114. Preparation of Measures.
The preparation and introduction of measures in Congress
is still very free. Any member may at any time deliver a bill
to the speaker, who refers it to the appropriate committee ;
many bills are drafted by constituents and other outsiders, who
perhaps employ a lawyer to arrange the details of their meas-
ure, and ask some member to introduce it ; reform associations
of various kinds draw up bills ; labor associations draft bills
and urge their adoption : there could not be greater freedom
in bringing measures to the attention of Congress.
§ lis] Responsibility and Initiative. 245
Many bills for the improvement of the executive or judicial
service of the government are drafted by executive or judicial of-
ficers, and introduced at their request by friendly members,
or filed with committees for their consideration. Members of
the cabinet habitually draw up bills and seek to get them
passed, — for instance, the so-called " administrative tariff
bill" of 1890 was largely the work of Daniel Manning, pre-
vious secretary of the treasury. Occasionally the president
sends a message to Congress, enclosing a bill drawn by a
cabinet officer.
, To get a bill framed and reported is another matter. The
actual form of the bill and, in all serious measures, its phrase-
ology come from the committee to which it is referred, and
are often the result of weeks and months of consideration. It
is here that an able, steady, and sagacious member often ren-
ders his best service, by standing up for right principles and
for a careful and clear statement of the proposed law. Occa-
sionally some member, usually the chairman of the committee,
finds his name permanently attached to a bill, — as the Loud
Post-Office Bill, the Dingley Tariff Bill, the Edmunds-Tucker
Anti-polygamy Bill.
In early days the House and the Senate used to instruct
committees what kind of bill to draw ; and occasionally after
discussion a bill is now recommitted with instructions. More
often, if the committee sees that the House is dissatisfied with
the form of a reported bill, it asks to have the bill recommitted,
and tries to meet the objections. The great political measures,
however, must be passed on by the steering committee before
they can really get to the discussion point ; and no one outside
of Congress knows exactly who is responsible for the form
of the bill that is at last laid before the House for serious
consideration.
115. Influences on Congress.
When a measure is once open for discussion, its fate depends
upon a great variety of influences. One of the most powerful
246 Work of Congress. [§ "S
is the president of the United States, who not only recom-
mends legislation in his encyclopedic annual message contain-
ing advice on fifty different public questions, but may also
send special messages recommending particular measures ; and
such messages usually attract public attention. For example,
in 1902 President Roosevelt specially addressed Congress to
pass a bill for reciprocal trade with Cuba.
A still more potent influence is that of the party leaders in
and out of Congress, who constantly consult with each other
and decide whether a particular measure will help or hurt the
chances for the next election. This influence is communicated
to Congress very effectively through the steering committee.
Of course if the majority in either House is determined upon
a measure, the leaders must give way or lose their influence ;
but experience shows that the road to a member's success in
getting measures through and in carrying elections, is to avail
himself of the skill of leadership ; and that little progress is
made by throwing the leaders overboard.
Behind both organized Congress and leaders is the subtle
force of public opinion. Members of Congress are diligent
readers of newspapers, and are more affected by the private
letters and telegrams of men of mark in their districts than by
almost anything else ; hence a favorite method of influencing
legislation is for individuals or organizations to send out cir-
culars urging people to write to their senator or representative
for or against some pending bill.
A very powerful influence is, the party legislative caucus,
called in one or the other house to discuss public measures.
The vote of the majority of the caucus is considered to bind ;
hence members who have made up their minds not to accept
the caucus decision usually stay away. Since the perfection of
the steering committee, the caucus has become a less frequent
and effective method of concentrating party votes.
General appropriations, like the river-and-harbor and public-
building bills, are much affected by " log rolling," — that is, a
number of members agree each to vote for the item desired
§ lis] Influences. 247
by the other. Another force is the lobby, by which is meant
those men, and sometimes women, who make it a business to
argue with congressmen and to sohcit their votes. Some of
these lobbyists are paid attorneys of corporations ; many of
them are former members of Congress, who understand the
inner workings of the body. Attorneys and counsel are often
allowed to come before committees of Congress and to make
formal arguments.
Members of Congress, like other men, are much influenced
by the desire to please their old friends and to make new ones ;
and votes are often given without much thought, because asked
for by a man of influence. In many states the senators have
such a hold on the political machine that they can prevent or
allow the renomination of members of the House ; and this
power gives large influence to the requests of such senators for
votes on behalf of favorite bills.
Legislation is affected by the president through his personal
relations with members. Every strong president is constantly
explaining what he desires, and why he desires it, to senators
and representatives ; and sometimes he intimates that he will
veto a bill if it is not modified. Some presidents threaten to
take away the patronage of members who vote against their
favorite schemes: thus, in i860 President Buchanan was
accused of promising offices to the friends of members who
would vote for the Lecompton Bill.
Direct corruption in Congress has been very rare, though
during the Civil War there were some actual cases of the pay-
ment of money for votes or privileges, and during Reconstruc-
tion three members of the House were found guilty of selling
nominations to West Point. Occasionally members accept
stocks and bonds as gifts, or take them over at low prices,
with the understanding that they will make them valuable by
voting for the pending measure. During the last thirty years,
however, few legislative bodies in the world have been freer
from charges of the transfer of votes for money or direct
valuable considerations.
248 Work of Congress. [§ 116
116. Debate in Congress.
A main reason for the existence of Congress is to provide a
forum where arguments may be confronted, and, if possible,
disproved on the spot. This great responsibility is still main-
tained by the Senate, for under the rules of that body any sena-
tor may speak on any question so long as he has anything to say.
In the House of Representatives, however, it is physically
impossible for 386 men each to express his whole mind on
every pending question; hence debate is hmited in several
different ways, (i) A man cannot be heard unless he gets the
floor, and he cannot, get the floor unless the speaker recog-
nizes him. (2) Since 1847 it has been a rule of the House that
no member shall speak more than an hour on a pending ques-
tion, except the member in charge of the bill, who may have
an additional hour at the close. (3) In the Committee of
the Whole, where debate is really most active, speeches are
limited to five minutes on each question. (4) The method of
" bringing in a rule " cuts down to very narrow limits the
time allowed for debate. (5) It is the habit of the man in
charge of a measure, after a brief discussion, to move " the
previous question," a step which cuts off debate altogether.
He is a favored member of Congress who gets three or
four chances in a session to make a speech long enough to
develop a subject, and very few men have the opportunity to
influence the House by their remarks. Hence the bad habit
of "leave to print," which means that a member prepares a
speech, about an hour long, to be printed in the Congres-
sional Record without having been delivered at all. Time
is taken from debate by the skirmishing between the chairmen
of committees to get the floor for their bills : sometimes half
an hour to an hour is spent simply in getting the House to
decide which committee it will hear first. The growth of the
steering committee tends to do_ away with this evil.
Nevertheless, upon questions in which the country is deeply
interested there is plenty of discussion : the House almost
§ ii6] Debate. 249
always thoroughly debates appropriation bills, perhaps because
each has behind it a committee which has worked hard to pre-
pare it and feels concerned to see it through.
Partly from the Anglo-Saxon tradition of fair play, partly
from the acknowledged power of the speaker and the presi-
dent of the Senate, debate is usually decorous. The speaker
enforces order by his gavel, by admonition, and if necessary by
calling the member to order. The general rule of deliberative
bodies is that a member who once gets the floor is entitled to
continue his remarks until his time has expired, without inter-
ruption ; but certain privileged committees may come in with
their reports and cut him off, and members are subject to
interruption by questions from other members. Some con-
gressmen like Mr. Blaine get a reputation for adroitly parry-
ing such attacks. At present the most effective kind of speech
in House or Senate is that of a party man who declines to go
all lengths with his party and expresses his individual convic-
tions. One feature of debate in Congress is the very free
use of extracts from books and newspapers, which are com-
monly sent up to be read by the clerk. A few years ago a
member thus offered in sections the whole of Mr. George's
book, Progress and Poverty, and got it printed in the Co?igres-
sional Record,
The sharpest and most effective debate is in the Committee
of the Whole, to settle details of a bill which is likely to pass,
the question of the formal text remaining to be settled later.
Here, under a chairman designated by the speaker, the House
proceeds by a somewhat simpler parliamentary procedure :
any member may speak five minutes on the question ; if he
has more to say, sometimes he moves to strike out the last
word of the pending question, thus making a new issue on
which he claims the right to speak five minutes; when the
discussion ends, the speaker resumes the chair and the chair-
man reports to him what the committee has been doing.
Votes in the Committee of the Whole are provisional; the
question comes up again in the House in regular session.
250 Work of Congress. ' [§ 116
The spirit of good order is apt to decline in the last hours
of the session, when bills are hanging in the fate of which
members are interested. All-night sessions are frequent, espe-
cially on the night between March 3 and March 4. Every
effort is then made to persuade the speaker to recognize par-
ticular members ; reports of conference committees come in,
interrupting all other proceedings; clerks and members fly back
and forth between the houses and to the president; debate is im-
possible; the briefest abstract of a bill is all that can be secured.
Closely connected with the freedom of debate is the ques-
tion of obstruction, — that is, attempts to defeat or delay a
bill by appeal to technicalities of parliamentary law, by points
of order, by amendments and amendments on amendments,
by demanding yeas and nays, by motions to substitute, to lay
on the table, to adjourn, and again to adjourn. Filibustering
differs from obstruction only in being more systematic and
longer continued. In the Senate it takes the form of long
speeches : for instance, on the Federal Elections Bill, between
December i, 1890, and March 4, 1891, there were in the
Senate twenty-five set speeches against the bill, occupying 266
pages of the Record, — about thrice the length of this volume, —
one of the speakers alone taking up 49 pages. The bill was
killed by the announcement of the opposing senators that
they would talk indefinitely ; and a proposed rule to permit
the Senate to cut off debate was abandoned after nearly
a month of time-consuming speeches. Still, a determined
majority in the Senate can always get a vote if it insists. A
favorite method of breaking up filibustering is to hold all-
night sessions, the majority sometimes appearing in relays ;
but the minority is likely to wear longer in such a contest,
for their object is to call the attention of the country to the
pending measure, and thus to put pressure on the majority
members, urging them to give way.
In the House, which is so much larger than the Senate, and
in which tradition plays so much smaller a part, various means
of checking filibustering have been found. The first is the
§ 117] Debate. 251
"previous question." In 181 2 the House adopted the prac-
tice of permitting anybody who could get the floor to move
" that the main question be now put." This motion is unde-
batable, and must forthwith be put by the speaker ; if carried
in the affirmative, debate at once ceases and the " immediate "
— -that is, the then pending — question must be voted on;
if amendments are pending, they may also be voted on in
their reverse order without debate. Used at first intermit-
tently, the " previous question " has long been a standing
practice of the House, and it is employed not only to cut off"
tedious debate but to prevent the minority from stating to the
world its reasons for disapproval. It is also used habitually
to bring the House to a vote after debate is finished, lest the
bill lose its place by some accident.
What will control motions made simply with a view to de-
lay ? The speaker has long been in the habit of failing to see
a man who presumably wants to filibuster ; but he cannot safely
refuse to give opportunities to the recognized leaders of the
minority. In 1890 a new rule was adopted, giving the speaker
authority in his discretion to refuse to entertain " dilatory
motions." Under parliamentary law a motion to adjourn is
always in order; but under the rule of 1890, which is still
substantially in force, the speaker may refuse to entertain a
motion to adjourn, if a similar motion has recently been made
and lost. If, however, one fifth of the members present are
determined upon it, and will call for the yeas and nays, they
may insist on their constitutional right to a roll-call every time
any proposition comes to a vote ; and thus may compel the
other four fifths to answer to their names five, ten, or twenty
dreary times.
117. Amendments of Measures, and ¥"otes.
The fundamental right of deliberative bodies is not only to
discuss, but also to alter, propositions before them ; hence
every bill brought before Congress is subject to changes which
perhaps may totally alter its character. Under the rules of
252 Work of Congress. ■ [§117
the House, no amendment can be offered that is not " ger-
mane " to the subject of the bill. This limitation is intended
to prevent the grafting of one proposition upon a very different
one ; it was introduced to prevent the system of legislative
" riders," — that is, of adding to a bill clauses which could not
pass on their merits, expecting the other house and the presi-
dent to let them go rather than to defeat the whole measure.
On great bills, like an Interstate Commerce Act or a Tariff
Act, hundreds of amendments may be filed. A bill is fre-
quently recommitted, so that the committee may incorporate
such amendments as it favors ; or, in order to meet objections,
amendments are prepared in the committee and reported by
the chairman. It is a duty of party, management to prevent a
part of the majority from joining with the minority in an im-
portant amendment ; for it is evident that such a practice
would quickly destroy party cohesion; hence members who
really desire changes in a bill try to bring them about by remon-
strating with those who have the bill in charge. The tariff bills
of late years have gone through the House in almost exactly
the form in which they were reported, parliamentary devices
being found for shutting off the amendments not accepted by
the committee in charge. A favorite method of defeating bills
is to move at the last moment to strike out the enacting clauses,
a motion which, if carried, stops debate and ends the subject.
Votes in Congress are taken in four ways : — ( i ) By the
" ayes and noes," the presiding officer deciding according to
the sound of the voices. This is convenient for ordinary
questions, where the vote is not very close. (2) If anybody
doubts the vote, there is a " division " : those in favor rise and
are counted, and then those opposed rise and are counted.
(3) In vote by "tellers" those on the affirmative and those
on the negative each file between two tellers, who count the
numbers. The advantage of this system is that it gives time
to call up members from the lobby and committee rooms.
(4) More formal is vote by "yeas and nays," in which the
clerk calls the roll and each member as his name is called an-
§ 117] Amendments. 253
swers "aye" or "no." The importance of the yeas and nays
is that they are recorded in the journals, and are always open
to the inspection of constituents.
Under the rules of the House and Senate, no bill can be
passed unless it has been read three times on different days ;
but there are two methods of expediting business, (i) The
rules may be suspended by a two-thirds vote, so that the bill
may go through its various stages in a single day. (2) Almost
anything can be done if nobody objects : a very large part of
the routine business in both houses is actually performed while
there is no quorum in the hall, and this goes on till the point
of no quorum is raised. In 1895, for instance, a bill was in-
troduced in the House of Representatives, and passed through
all its stages in a few minutes, appropriating ^50,000 for the
Venezuela Commission, no member thinking it advisable to
lodge an objection. So well understood is this practice that a
few years ago, when two members of the House agreed that
they would object to everything until certain concessions were
made to them, they actually compelled the speaker and all the
other members of Congress to placate them.
A bill which has passed one house is then " engrossed," —
that is, drawn up in fair copy with all the adopted amendments
inserted ; but in order to become law it must be absolutely
agreed to by the other house, without the difference of a word
or a comma ; and each house is free to amend the bills of the
other. How shall the two houses be brought together ? Send-
ing the bills back and forth is a tedious process, and is apt to
increase the trouble. The ordinary solution is to appoint a
committee of conference, composed of members of both houses,
who try to find a middle ground. One side gives way on some
of its amendments, the other side on some of its claims ; and
if an agreement be reached it is reported to both houses.
There is usually little debate on conference reports ; if either
house is still dissatisfied, it refuses to accede and demands a
new conference. Technically, the conference committees may
only consider the two forms of the bill as they come from the
254 Work of Congress. , [§ nS
two houses ; actually, they frequently make up a bill including
clauses which have been accepted by neither house. Thus,
the tariff act of 1883 was practically framed by the conference
committee.
When the two houses come to an understanding, an " en-
rolled" copy of the bill is prepared and signed by the speaker
of the House and the president of the Senate : and it then goes
to the president.
The system of the steering committee tends to harmonize
the two houses, by introducing bills which it is known before-
hand will be accepted in both ; but it also tends to take away
the feeling of individual responsibility, and to prevent either
house from a fair attempt to draw up a satisfactory bill by the
old-fashioned process of trying various amendments until the
bill reflects the majority opinion. On all large questions there
is time enough for debate, or would be if the houses did not
spend so much time on private bills. The main reason for a
lack of thoroughness in the House, and to a great degree in
the Senate, is that both have too much petty business in hand
to do the great business properly.
118. The Presidential Veto.
A joint vote of both houses of Congress does not make a
statute, for the president must still be consulted as part of the
legislative power. When a bill is sent to the president, he may
do one of four things : — ( i ) He may sign it, whereupon it
forthwith becomes law ; and this is what happens to most bills.
(2) He may simply leave it unsigned, and at the end of ten
days, if Congress has not meanwhile adjourned, it becomes
law and is entered in the statute-book accordingly. (3) He
may veto the bill, and send it back to the house in which it
originated, with his written reasons against it. (4) By the so-
called "pocket veto," the president refuses to sign a bill sent
within ten days before adjournment, and at the next session of
Congress sends in a statement of his reasons for refusing. A
fifth method — the approval of a bill by the president after
§ii8] Presidential Veto. 255
Congress has adjourned — was used once by President Lincoln,
and is common enough in the states ; but it is now an unwrit-
ten principle that all congressional bills still unsigned at ad-
journment are dead.
The presidential veto has been exercised nearly 450 times in
the history of the government. The only presidents who lived
through their terms without using this power were John Adams,
Jefferson, and John Quincy Adams. The first president to
make a systematic use of the veto was Jackson, who vetoed
1 2 bills. President Johnson vetoed 2 1 bills, nearly all of which
were carried over his veto by the constitutional two-thirds
majority. President Grant fearlessly used his veto 43 times.
President Cleveland in his first administration sent in 301 vetoes,
nearly all of them of pension, relief, and public-building bills,
almost none of which were passed over his veto.
The president's veto is simply suspensive : a vetoed measure
is again submitted to a vote, just as it stands, and if it then
receives a two-thirds majority in both houses it becomes a law.
Outside of Jackson's and Johnson's administrations, however,
only half a dozen measures have ever been passed over the presi-
dent's veto, so that it is almost as effective as if absolute.
Indeed, the fear of the presidential veto frequently causes bills
to be modified to meet supposed objections; on the other hand,
measures are sometimes allowed to pass both houses in the ex-
pectation that the president will have the courage to veto them.
The president's veto power is undoubtedly salutary, both
because it is an additional check on ill-considered legislation,
and because the president keeps in mind the treaty obligations
of the government: for example, in 1879, President Hayes
successfully vetoed a bill restricting Chinese immigration, and
set on foot negotiations to make such a bill possible with-
out violation of our pledges. . The president also protects his
own prerogative by his veto power: thus, in 1S76 President
Grant vetoed a bill discontinuing certain diplomatic offices,
for he argued that only the executive could designate public
ministers. The president habitually consults with members of
256 Work of Congress. ' [§119
his cabinet on bills which affect their offices : for instance, in
1882 President Arthur vetoed a river-and- harbor bill on the
advice of Robert Lincoln, secretary of war, under whom the
money was to be spent. The main defect in the federal veto
power is that the president has no power to disallow separate
items in an appropriation bill, a power possessed and exercised
by many state governors.
119. Output of National Legislation.
The number of actual statutes which went through all the
forms in the first Congress (i 789-1 791) was 115; in the
fifty-sixth Congress (1899-1901), 1,881. This large increase
is due in part to the expansion of the country in territory and
in population ; in part to the enormous material growth of the
country, bringing in new subjects for legislation, such as rail-
roads, steamships, and telegraphs ; in part to the congressional
habit of constantly making small amendments to preexisting
laws ; but above all to the great number of private and petty
bills passed by Congress. Of the 1,881 statutes put on the
statute-book from 1899 to 1901, 1,498 are classified in the
statutes as "private," 211 more are appropriation or other
bills temporary in their nature, leaving only 172 measures
which concern the permanent public service or interests.
Startling as is this legislative output, it represents only a
fraction of the measures introduced into Congress. In 1899-
1901, 6,236 Senate bills and resolutions and 14,657 House
bills and resolutions were actually presented and pigeon-holed
somewhere in the Capitol. Less than one bill in ten gets
through at all; and of the public measures, most are so
mauled in debate, and in the passage through conference,
that they are very unlike the origmal propositions. The
public statutes accumulate so fast that in 1878 Congress en-
acted the "Revised Statutes," a codification of the laws then
standing on the statute-book, leaving out temporary, expired,
and repealed laws. It is now time to incorporate with that
work the permanent laws of the last twenty-five years.
§ 119] Legislative Output. 257
The reason for the private bill is that occasional cases occur
which are not sufficiently provided for by the general laws. A
claimant for a pension, for instance, lacks some element of the
necessary legal proof, although otherwise he possesses a good
case ; this may be a reasonable subject for a private bill, yet
Congress is a very unfit body to examine such small questions.
Private bills are really introduced by members as a favor or a
justice to their constituents, and they require much personal
attention in order to prevent the professional objector or the
speaker from ruling them out. Until about 1854 Congress
was plagued by private bills for the advantage of claimants
under contracts ; in that year it created a Court of Claims,
which makes a judicial examination of such matters and
reports its findings to Congress. Some such tribunal ought to
be erected for most of the matters which now come within the
private bills.
In this review of the legislative department and its work, it
has been necessary to direct attention to practices which im-
pede good legislation. Criticism, however deserved, must not
obscure the larger truth that Congress does fairly reflect the
public opinion of the country at large, though somewhat slow
to-- respond to changes of popular desire. The chief defects of
Congress arise from the great number of members and from
the great mass of business. The committee system, with all
its drawbacks, disposes of and kills off many undesirable
measures. The gradual establishment of the power and re-
sponsibility of the speaker, and the unwritten influence of the
steering committee, make the House still a legislative body;
and the House and Senate are kept in reasonable adjustment
with each other. Congress is a more efficient body than
almost any state legislature, is less subject to personal influ- ,
ences, and is less controlled by a few political leaders acting
for personal ends. The main trouble in Congress is lack of
time, and that is due pardy to private-bill legislation, and
partly to the pressure on the time of members to obtain
office for constituents and supporters.
17
CHAPTER XV.
THE PRESIDENT.
120. References.
Bibliography: E. C. Mason, Veto Power (1890), 219-221; A. B.
Hart, Foundations of Am. Foreign Policy (1901), §§ 78, 79; A. B. Hart,
Manual (1908), §§ 109, no, 292; E. McClain, Constitutional Law
(1910), § 37; Cyclop, of Am. Govt. (1914), I, 682; HI, 5, 7, 12; Channing,
Hart, and Turner, Guide (1912), §§ 176, 203; P. O. Ray, Pol. Parties,
167-171.
Choice of the President: E. Stanwood, Hist, of the Presidency
(1916); W. W. Willoughby, Constitutional Law (1910), II, chs. Ivii, Iviii;
F. A. Cleveland, Organized Democracy (1913), §§3i8> 319; P- O- Ray,
Pol. Parties (1913), ch. viii; J. Bryce, Am. Commonwealth (ed. 1910),
I, ch. viii; Cyclop, of, Am. Govt. (1914), Art. on Presidential Elections;
E. McClain, Constitutional Law (1910), § 40. — Sources: P. S. Reinsch,
Readings on Am. Federal Govt. (1909), ch. xvi.
The Presidency in General: J. A. Woodburn, Am. Republic
(1916), ch. iii; E. McClain, Constitutional Law (1910), §§ 41, 120; R.
L. Ashley, Am. Federal State (1911), ch. xiv; J. Bryce, Am. Common-
wealth (ed. 1910), I, chs. v-viii; H. J. Ford, Am. Politics (1898), ch.
xxii; F. J. Goodnow, Administrative Law (1905), bk. ii, ch. i; J. R.
Tucker, Constitution (1899), II, ch. xii; W. Wilson, The State (rev.
ed., 1898), §§ 1323-1351; W. H. Taft, Our Chief Magistrate (1916);
Cyclop, of Am. Govt. (1914), Arts, on Executive and Congress; President
of the U. S., Authority and Influence of; President of the U. S., Con-
stitutional Powers of; W. W. Willoughby, Constitutional Law (1910),
II, ch. hx; T. M. Cooley, Constitutional Law (1898), ch. v. — Sources:
C. A. Beard, Readings in Am. Govt. (1909), ch. be; C. L. Jones, Readings
on Parties (191 2), ch. iv; P. S. Reinsch, Readings on Am. Federal Govt.
(1909), chs. i-iii.
Functions of the President: F. J. Goodnow, Administrative
Law (1905), bk. ii, ch. iii, pt. i; E. McClain, Constitutional Law (1910),
§§ 122-136; J. A. Fairlie, National Administration (1905), chs. i, ii;
■ E. C. Mason, Veto Power (1890); W. Whiting, War Powers (1871),
66-83, iS9~325; C. R. Fish, Civil Service and Patronage (1905); L. M,
Salmon, Appointing Power (Am. Hist. Assoc, Papers, I, 291, 1886);
A. Conkling, Powers of the Executive Department (1882). — Sources:
J. D. Richardson, Messages of the Presidents (1896-1899); C. A. Beard,
Readings in Am. Govt. (1909), ch. x. See also references to chs. xvi, xx,
xxiii, XXV, xxxi below.
258
§ i2i] History of the Presidency. 259
121. History of the Presidency.
That one person should stand at the head of the state is
natural in a monarchical government, and has often been the
practice of republics ; but it is not the only or the obvious
method. The Federal Convention found it a difficult matter
to provide a single-headed executive which should be free from
control by Congress. For weeks the idea of an executive
council was discussed ; then the Convention declared for an
election by Congress ; and at last it decided for a single execu-
tive, chosen by indirect popular election.
The presidency has in a century changed from what the
Convention had in mind. The growth of the republic has
thrown new responsibility upon the president; the cabinet
has grown up, and has gained strength as time went on ; and,
in passing, from individual to individual, the traditions of the
presidency have been well transmitted and often expanded.
From 1789 to 1903 there have been twenty-five presidents
of the United States, most of whom have set an impress upon
the office. Washington, from 1789 to 1797, made the first
series of appointments, established the first relations with Con-
gress, inaugurated a foreign policy, and began the use of the
veto power. Such was the popular confidence in the president
that he carried through nearly every policy which he publicly
advocated ; and, although bitterly maligned by the opposition
press, he retained the love and confidence of the country to
the end of his administration. John Adams, from 1797 to
1801, was a party president, at odds with the opposition and
engaged in quarrels with a large faction of his own party. He
added little to the president's power, except that he dismissed
a member of the cabinet outright and thus created a valuable
precedent.
Jefferson's presidency, from 1801 to 1809, had an unex-
pected effect on the development of the office. Jefferson
beheved in reducing federal powers to the lowest point pos-
sible, and he naturally favored legislative authority as opposed
26o The President. ' [§121
to one-man power. Yet no president from that day to this has
ever had such unquestioned influence over Congress : in both
foreign and domestic affairs he asserted the primacy of the
president. Madison and Monroe were both men of less
dominant temperament ; and John Quincy Adams was so
hampered by the refusal of Congress to accept any policy
which he ardently advocated, that the power of his office
declined in spite of all his efforts.
The diminishing of the prestige of the presidency was
checked by the next president, Andrew Jackson, from 1829
to 1837. Jackson broke loose, was the first president to
employ his veto power frequently and with determination, and
ended by converting a hostile majority in both houses into a
party majority in his favor.
Van Buren, Harrison, and Tyler added nothing to the power
of the president, and Tyler weakened it by dissensions with
Congress. Polk, however, from 1845 to 1849, ^^^ one of the
most forceful of all American presidents, and the first to show
the immense power which may be exercised by the president
in time of war. His successors, Taylor, Fillmore, Pierce, and
Buchanan, raised neither the prestige nor the power of the
presidency. Pierce was the weakest of all the American presi-
dents, and much under the influence of his cabinet officers ;
and Buchanan at the end of his administration became involved
in the secession controversy, in which both sides thought he
showed weakness and indecision.
The greatest of American presidents was Lincoln, who came
to the office less experienced in public affairs than any prede-
cessor. His success in trying circumstances is the proof of his
genius. He made head against Congress at a time when that
body was seizing new powers ; and above all presidents he
secured the confidence of the people. He raised the presi-
dency to its highest point of power and responsibility, and
was allowed so to raise it because people knew that he would
give up his war powers when the war ended.
Andrew Johnson inherited all the difficulties of the Civil
§ 122] History, 261
War without any of Lincoln's gifts. The House of Representa-
tives demanded his impeachment, and the Senate lacked but
one vote of the two thirds necessary to remove him from office,
and thus to make the presidency forever dependent on Con-
gress. General Grant, from 1869 to 1877, was a better presi-
dent than either his friends or his enemies realized. He was
the first president to take interest in the improvement of the
national civil service, and he used his veto oftener than any
president who had preceded him.
President Hayes, by his veto of appropriation bills bearing
riders, nearly broke up the practice of riders. President Gar-
field died in the midst of a contest for the dignity of his office.
Under President Arthur an efficient civil service act was put
into execution. President Cleveland, from 1885 to 1889, and
again from 1893 to 1897, showed a strong determination to
preserve the accumulated prerogatives of the presidency ; he
vetoed a large number of private bills, and continued President
Arthur's policy of slowly improving the civil service. President
Harrison, from 1889 to 1893, was out of touch with Congress,
and could not add to the power of his office.
President McKinley, from 1897 to 1901, was more like
Jefferson than any other president, in his quiet control over
Congress and his dealing with out-lying possessions. At the
time of his death, on September 14, he was one of the strong-
est and most powerful presidents that had ever occupied the
White House. President Roosevelt has a popular support
and confidence granted to few of his predecessors.
122. The Choice of the President.
In the Federal Convention, many suggestions were made as
to the election of the president, — that he should be chosen
by Congress, by the people at large, by the Senate, by electors.
Eventually the last of these methods, although almost unknown
in the states, was chosen, because every other method was
more inconvenient. By a direct popular election, large ma-
jorities concentrated in a few states might bring in a president
262 The President. [§ 122
who was unpopular in most of the country ; and election by
Congress would almost certainly mean such previous pledges
by the successful candidate as would leave him at the mercy
of the legislative department.
The method of choice by electors has some difficulties.
How shall electors be chosen? The constitution provides
simply " that each state shall appoint in such manner as the
legislature thereof may direct " its quota of electors. For
many years electors in some states were chosen by the legisla-
ture,— as late as 1876 by the legislature of Colorado; but
ever since 1792 it was more common to choose them by pop-
ular vote. Shall they be chosen by districts, like members of
Congress? This was the practice in Maryland for many
years, and was tried in Michigan in 1892. The method at
present, however, is that all the electors from a particular
state shall be chosen together by one plurality. Hence in
the election of 1884, by a majority of about 1,000, the thirty-
six electoral votes in New York were cast for Mr. Cleveland,
and thereby Mr. Blaine was defeated for president.
The voters in presidential elections are the same as
the voters for the more numerous branch of the state legisla-
ture. From 1870 to 1894 there was a system of protecting
the polls by federal inspectors; at present the conduct of
presidential elections is left wholly to the state authorities. In
early times the choice of electors did not necessarily come on
the same day throughout the country, but in 1845 Congress
prescribed the Tuesday after the first Monday in November.
It is a day of great excitement, and few elections call out such
a large proportion of the voters. The machinery for report-
ing the count is now so nearly perfect that within five or six
hours after the polls have closed the result of the contest is
usually known throughout the country.
Strictly speaking, there is no election in November, — only
a choice of a certain number of persons in each state who are
empowered to elect a president. The original thought was
that the electors would act irrespective of party : but in the
§ 122] Choice. 263
third election, of 1 796, it was understood beforehand that the
FederaHst electors would vote for Adams and the Republican-
Democratic electors for Jefferson ; and in the twenty-six presi-
dential elections since that time there is no case of an elector
who has cast his ballot in opposition to the expectation of
those who voted for him. The electors, therefore, are really
so many counters, — three for Delaware, thirty-nine for New
York, and so on.
The indirect system is intended to avoid a danger. Each
state has as many electors as it has senators and representa-
tives, and hence no president can be chosen who has not
friends and supporters in about half the states in the Union :
there cannot be such a thing as a New England president, or
a Middle-state president, or a Southern president, or a West-
ern president. Furthermore, the system avoids a great temp-
tation to electoral frauds in the strong party states. In the
election of 1900, Pennsylvania had 252,000 majority for
McKinley, and Texas 121,000 majority for Bryan. Those re-
turns might have been raised to almost any figure, if more
votes could have designated more electors ; but no manipula-
tion could carry more than 32 electors for Pennsylvania, and
1 5 electors for Texas.
(i) These so-called " electoral colleges," chosen in Novem-
ber, meet, one in each state, on the second Monday in January,
cast their ballots, and despatch certified copies of the returns
to Washington ; on the second Wednesday in February Con-
gress meets to count the votes. The constitution provides
only that the "votes shall then be counted." In 1877, when
the electoral result was very close, the question whether the
vote was to be counted by the Senate officers, or by joint
agreement of the two houses, was all- important. Four states
each sent in two rival returns. The majority of the House
was Democratic and favored one set of returns, and the ma-
jority of the Senate was Republican and favored the other ;
whereupon the controversy became so bitter that a special act
of Congress was passed creating an electoral commission (un-
264 The President. [§ 122
known to the constitution) of five senators, five members of
the Houge, and five justices of the Supreme Court. In this
commission of fifteen, by a vote of 8 to 7, the RepubUcan
return from each of the four states was received ; and Mr.
Hayes was declared elected by 185 to 184 electoral votes.
In 1887, to prevent such controversy, Congress passed an act
for the count of the electoral votes, of which the principle is
that, if there is only one return from a state, it is to be received
unless the two houses unite in throwing it out ; if there are
two sets of returns, that one is to be received which has the
certificate of a state tribunal appointed to canvass the vote, —
that is, it is left to state authority to decide whether the
electoral votes are cast by the electors who have been duly
chosen.
(2) If there is no majority of all the electoral votes, the
president is elected by another method : the constitution pro-
vides that the House of Representatives shall elect one from
the three highest on the list, the majority of members from
each state taken together casting one vote. Only twice has
this method been used, and both times it has led to serious
trouble. In the election of 1800, the Republican-Democrats
intended that Jefferson should lead, and that Burr with the
next highest vote should become vice-president ; each, how-
ever, had 73 votes, and there was no constitutional election.
With difficulty Jefferson was at last elected by the House in
1801. Under the twelfth constitutional amendment (which
was at once introduced, and in 1 804 became part of the con-
stitution) , the president and vice-president are now voted for
separately, and such a deadlock cannot be repeated. The
other House election was in 1824, when out of the three candi-
dates — Jackson, Adams, and Crawford — John Quincy Adams
was chosen by the House, voting by states.
(3) A third naethod of becoming president is through the
death or inability of the president, when constitutionally the
vicfe-president assumes the office. Five times has this unhappy
contingency come to pass. By the death of Harrison, April 4,
§ 122] Choice. 265
1 84 1, John Tyler became president; by the death of Taylor,
July 9, 1850, Millard Fillmore became president; by the
assassination and death of Lincoln, April 15, 1865, of Garfield,
September 19, 1881, and of McKinley, September 14, 1901,
Andrew Johnson, Chester A. Arthur, and Theodore Roosevelt
respectively became presidents. Under constitutional author-
ity to provide for the succession in case of the death or in-
ability of both president and vice-president, in 1792 Congress
enacted that the president pro-tem of the Senate should be
next in succession, and after him the speaker of the House, a
new election to follow within two months. January 19, 1886,
Congress passed a much better law, which provides that the
succession after the vice-president shall be secretary of state,
secretary of the treasury, secretary of war, attorney-general,
postmaster-general, secretary of the navy, and secretary of the
interior. This makes in all nine persons, and it is hardly con-
ceivable that every one of these nine should die or become
disabled at the same time. There is no provision in this
statute for a new election, and hence a president who thus gets
into oiifice serves out the remainder of the term.
The term of the president begins at noon on the fourth of
March, and runs for four years. Washington was reelected,
and might have had a third term ; and every president there-
after until 1 84 1 was a candidate for reelection : John Adams,
John Quincy Adams, and Van Buren were defeated ; Jefferson,
Madison, Monroe, and Jackson were elected. From 1841 to
1 86 1 no president was renominated.
From 1861 to 1901 there were four cases of double terms,
— Lincoln, Grant, Cleveland, and McKinley. Lincoln died
at the beginning of his second term ; Cleveland was re-
nominated and defe-ated in 1888, again nominated and
elected in 1892; Harrison was renominated in 1892, but
lost the election. In general, a president of great force of
character desires a renomination and is likely to get jt. Jef-
ferson, like Washington, retired at the end of a second term,
and thereby set a precedent which has ever since been fol-
266 The President. [§ 122
lowed. An effort was made to renominate Grant for a third
term in 1880, four years after the end of his second term, but
it failed ; and the country is now absolutely set against third
presidential terms under any circumstances.
The president and vice-president are the only officers of the
United States who must be native-born citizens; they must
also be thirty-five years of age, and must have resided four-
teen years in the country. The unwritten qualifications are
not so precise. With very few exceptions, the presidents have
been men of long public service and high national reputation :
John Adams and Jefferson had been vice-presidents ; Jefferson,
Madison, Monroe, and John Quincy Adams had all been
secretaries of state ; Jackson, William H. Harrison, and Grant
got their reputation chiefly through their military service ; Van
Buren and Buchanan had served as senators and as secretaries
of state ; Polk had been speaker of the House and governor
of Tennessee ; Presidents Hayes and Cleveland got their rep-
utations principally as governors of close states ; Garfield and
McKinley had had long and honorable experience in the
House of Representatives, in which Pierce also had seen ser-
vice ; Lincoln had served a term in the House, but had made
no reputation there, and owed his nomination to his joint de-
bates with Stephen A. Douglas. Of the vice-presidents who
have succeeded to the presidency, Tyler had been senator
from Virginia, Johnson military governor of Tennessee, Fill-
more had been in Congress, and Arthur had had experience
in minor executive federal offices only. President Roosevelt
had been civil service commissioner, assistant secretary of the
navy, and governor of New York.
In general, the road to the presidency is through long
public service, both because that inspires public confidence
and because it makes a candidate widely acquainted. Most
presidents are good public speakers ; no man has ever been
elected against whom there was any suspicion of integrity ;
and with few exceptions the presidents have shown themselves
rhen of high public spirit.
§ 123] Life in Washington. 267
123. The President's Life in Washington.
After the November election, it is customary for the suc-
cessful candidate to remain quietly at home ; he confers
with members of his party, makes up his cabinet list, and
decides on appointments. In February he commonly goes to
Washington; Lincoln on his way thither, in 1861, made a
series of public speeches intended to reassure the country.
The few days or weeks before inauguration are occupied
chiefly with office-seekers and the preparation of the in-
augural address. On March 4 the outgoing president escorts
his successor to the Capitol, where the new president takes
oath to the constitution and makes his address. He then
calls a special session of the Senate, and begins his ad-
ministration.
In Washington the president lives in the White House, a
stately building beautifully situated on a rise which sweeps
down to the Potomac flats, with superb drawing-rooms used
for the entertainment of visitors. Every president from John
Adams has made it his residence in Washington. In 1902 a
separate building was constructed for the executive offices, and
the White House was restored and made a convenient family
and official residence.
The etiquette of the presidential office is simple : it is not
expected that other people will sit while the president is stand-
ing, or talk when he has something to say ; but that is about
all. Nearly all presidents are free of access : any well-con-
ducted and clean person who can show the doorkeepers that
he has some actual business with the president may enter ; and
if he has introductions from some responsible person, or can
make his business clear enough to a secretary, the president
will receive him. Large numbers of people, including whole
visiting societies or their delegations, go to pay their respects
at the White House. Members of the cabinet have the entree
of the president's office at all times, and many senators and
members of the House have an equally undisturbed privilege
268 The President. [§ 123
of access for themselves and their constituents and. friends.
Indeed, presidents sometimes find it hard to get their meals
because of the 'pressure of callers.
The first two presidents set up a formal system of receptions
and levees ; but Jefferson inaugurated what he called " repub-
lican simplicity," which reached such a point that he received
the minister of Great Britain, when he came to make an offi-
cial visit, by opening the door himself, wearing brown stock-
ings not entirely clean, and slippers down at the heel. Since
his time most presidents have kept up a dignified social life.
Family and personal friends who visit Washington are often
invited informally to the family meals ; and there are numer-
ous state dinners at which the guests are foreign diplomats,
members of the Senate and the House, and civil, military, and
judicial officers. Presidents rarely make visits or calls in
Washington ; but an invitation to the White House always
supersedes any other engagement.
Most presidents go away from Washington for a part of the
summer ; and since the time of Washington they have been
in the habit of making long journeys to distant parts of the
Union, often speaking freely to great numbers of people on
the way. President Jackson came to New England in 1833,
and was received with enthusiasm. The long trips give one
of the best opportunities for people to get acquainted with the
president. From time to time he holds a public levee at the
White House, to which respectable people are freely admitted ;
and it is an absurd and fatiguing custom that he must shake
hands with each of these visitors.
From 1789 to 1800 the president made a formal speech at
the opening of Congress ; but now he never officially com-
municates with Congress in any other way than by a written
message. The correspondents of the great newspapers come
daily to the White House, and a secretary gives them any
information which the president desires to have circulated ;
and in addition they put into their despatches what they
learn from senators, cabinet officers, and other public men.
§ i24J Functions. 269
It is the policy of most presidents to keep the public in-
formed ; in fact, most acts of the president, outside of diplo-
macy, are necessarily known to so many executive officials
that they could not be kept secret if it were so desired.
With his cabinet a wise president is in constant communi-
cation, for they are the feelers through which he realizes pub-
he opinion ; he also confers with the public men in his own
party, and often with the opposition : from day to day he is
holding council with dozens of people in and out of public
life. He is the recipient of correspondence, often reaching a
thousand letters a day, from people known and unknown to him.
Countless gifts pour into the White House from all over the
country, most of which have to be declined. The president
has a force of stenographers and clerks, and an official private
secretary, whose office is practically that of personal and con-
fidential adviser.
124. Functions of the President.
The duties and privileges of the president are stated in
general terms in the constitution. He receives a compensa-
tion fixed by Congress : the first salary act of 1 790 made the
salary of the president $25,000 a year, a sum far larger than
any annual amount then paid by individuals or corporations ;
in 187 1 the salary was raised to $50,000 a year, which is
barely adequate for the dignified maintenance of the office.
In addition. Congress appropriates for the care and repair
of the executive mansion, — for lights, stable, hot-house, fuel,
and steward's salary. If the president wishes to make a trip
by sea, a government vessel is placed at his disposal ; but the
supplies and servants, both for the White House and for such
excursions, are paid for out of the president's income.
The powers of the president will appear in detail in the
discussion of the functions of government. They may be
briefly summarized as follows : — As commander-in-chief of
the army and navy, he has large authority in time of peace,
for he appoints, commissions, and assigns officers; and in
270 The President. [§ 125
time of war he is the mihtary chief. By his general appoint-
ing power he designates foreign ministers and consuls, judges
of the Supreme Court, and all other important officers. This
power, combined with the power of removal, which does not
require consent of the Senate, centralizes and unifies the whole
hierarchy of executive officers. The president's power over
ordinary legislation has already been discussed ; in addition
he directs foreign relations, and submits treaties for ratifica-
tion. In judicial matters the president has the power to par-
don any offences, except in cases of impeachment. One of
the most important functions of the president is to " take care
that the laws be faithfully executed." Under this power he
has general oversight over the whole executive service;
through the attorney-general's office he also keeps watch of
the courts ; and in case the execution of the laws is obstructed
by mobs, riots, or insurrections, he may use the militia or
regular military and naval forces to maintain the supremacy of
the law. He may also call the attention of Congress to laws
which are inadequate for their purposes.
125. Presidential Appointing Power.
Manifestly, the president must exercise many of his functions
through other executive officers of the government, and the
selection of them is one of his most important functions. In
1787 the states committed such appointments chiefly to' the
legislatures ; it is therefore remarkable that in the Federal
Convention the power of appointment was given to the presi-
dent, with the confirmation of the Senate.
In order to make a valid appointment, there must first of all
be an office to fill ; and the existence, title, and salary of the
office are settled by Congress, — the term also, except in the case
of judges and military and naval officers. The single excep-
tion is that the president may appoint commissioners to get
information for him, especially on diplomatic subjects ; but in
such cases no salary can be paid without the authority of
Congress.
§ 125] Appointing Power. 271
The next step is for the president to designate some person
to fill the office, which he does ordinarily by a special message
to the Senate, giving the name of the man and of the state
from which he comes, and the cause of the vacancy. The
appointment is usually referred to a committee, which is often
slow in acting, but in due time reports either for or against
confirmation. The matter is then brought before the Senate
in secret session, and a vote is taken, often after discussion ; if
a majority of the members voting are in favor, the appoint-
ment is then completed. The president, however, has still to
issue the commission, and if he refuses to do so it is practically
an annulment of the appointment.
The Senate has repeatedly attempted to get from the presi-
dent written information before confirming nominations, and
several presidents — among them Jackson and Cleveland —
have roundly refused to submit papers for that purpose. In
practice, many nominations fail of confirmation : in Jackson's
administration one nomination had no votes in favor, and 46
votes against it ; Tyler sent in the nomination of Caleb Cush-
ing as secretary of the treasury three times in two days, and
confirmation was refused each time.
The practice called "senatorial courtesy" greatly affects con-
firmation. It has two meanings: (i) that a senator or an
ex- senator will be confirmed without question; (2) that im-
portant appointments to federal office within a state will not be
confirmed against the objection of the senators from that state,
if of the same political party as the president. This often means
that the president must nominate a man designated before-
hand by a senator, or declared by him to be acceptable.
To the process of confirmation there are two exceptions,
(i) If the Senate is not in session, the president has the con-
stitutional power to make temporary appointments, to cease at
the end of the next session of the Senate if not confirmed by
that body. It is of course possible, but unusual, for the presi-
dent to reappoint the same man the moment the Senate ad-
journs. (2) Congress hag constitutional power to authorize the
272 The President. [§ 125
president to make certain appointments without confirma-
tion by the Senate, — for instance, that of the Ubrarian of
Congress.
Many influences are brought to bear upon the president,
(i) He uses his own personal knowledge of men, so far as it
goes. Washington, for instance, knew all the military, and
most of the civil, officers of the Revolution, and was therefore
able to make intelligent appointments. (2) Even Washington,
however, was from the first obliged to depend, for his knowl-
edge of the character and capacity of candidates, upon the in-
formation of other people, especially upon that of members of
the House and Senate who were at the seat of government and
at the same time in touch with their constituents. (3) Sen-
ators and representatives of the same party as the president
become the natural distributors of the patronage ; and, so long
as the president insists that the persons so suggested shall be
men of character and fitness, this method does not work ill.
(4) If the members of Congress from a state or a district are
among the political opponents of the president, somebody else
— a former member of Congress, or a leading politician — is
recognized as the person whose recommendation receives most
attention. (5) The president is subject to strong pressure
from candidates and the friends of candidates, who write let-
ters and send delegations. He receives the papers and takes
them into consideration.
Since Congress is a body containing many distinguished men,
it is natural that members should often be selected for execu-
tive offices. There is a constitutional provision that no senator
or representative shall, during the time for which he is elected,
be appointed to any office which has been created, or the
emoluments increased, during such time ; and that no person
holding office under the United States shall be a member of
either house. This provision absolutely prevents anything like
the parliamentary system, under which the great executive
officers are also habitually members of one or the other house.
Whenever a member of Congress is appointed to office, his
§ 126] Relations with Congress. 273
acceptance is considered a resignation of his place in Congress.
In about thirty cases, senators have resigned to accept cabinet
offices.
A similar, though unwritten, limitation is that no person hold-
ing any significant state office shall also hold a federal office.
This again is different from the principle of the European fed-
erations: the parliamentary ministers of the German states are
often also members of the Bundesrath, the German body which
corresponds to our senate.
126. Relations with Congress.
The right of the president to initiate legislation is one of
great importance, because his annual and other important
messages are printed throughout the country and concentrate
public opinion upon the measures which he advocates. An
example is President Cleveland's tariff message of 1887, which
made the tariff an issue in the presidential election of i888j.
The veto power gives to the president, upon its face, as much
influence over legislation as one sixth of the members of each
house have ; and practically it gives him more than a sixth,
because the veto attracts public attention.
The president has many indirect means of affecting legisla-
tion and legislators. ( i ) He is frequently a recognized party
leader. Thomas Jefferson, Andrew Jackson, Grover Cleveland,
and William McKinley are examples of presidents of this type.
(2) Almost every president has powerful personal friends in
both House and Senate, who are ready to defend his sugges-
tions and to introduce bills and amendments which meet his
views. (3) The patronage of the president gives him a great
hold upon both houses ; for, if he refuses to accept the names
submitted to him by members of Congress, the latter lose repu-
tation and political power in their own districts. Sometimes
the patronage has been used to secure desirable measures.
Thus, in December, 1864, President Lincoln made overtures
to some of the members of Congress, and secured the necessary
two-thirds vote for the pending Thirteenth Amendment.
iS
274 The President. [§ 127
In general, the president is more powerful in Congress than
any other individual ; but when a majority in one or both
houses is opposed to him, his most unselfish measures are likely
to be resisted for political reasons. President Madison found
Congress intractable in 1 809 ; John Quincy Adams's adminis-
tration was almost paralyzed by determined opposition ; from
1 83 1 to 1835 Jackson was engaged in an almost continuous
struggle with Congress ; and Tyler came to an open breach
with his Whig associates in Congress. Very frequently the
party which elects the president loses control of the House in
the middle of his term. Nevertheless, the president is so inde-
pendent of Congress that in the long run he is likely to pre-
vail in any controversy; Johnson was the only president to
confront a working two-thirds majority in both houses which
could override the president's vote and make him subject to
whatever that two-thirds majority held to be constitutional.
The truth is that the president is a personality and Congress
is an organism, and popular interest and enthusiasm are much
more likely to go to the personality.
127. Dignity of the Presidential OfBce.
The American presidency is praiseworthy for its simplicity.
The president has no high-sounding title: it was indeed
proposed to give Washington the title " His Highness, the
President of the United States and Protector of their Liber-
ties," and to put his head upon the coins ; but the official title
from that day to this has been simply " Mr. President." The
president receives ambassadors, but he rarely converses with
them upon diplomatic questions. He appoints thousands of
officers, civil and military, and yet never wears a uniform even
as the head of the army.
Nevertheless, the position of the president is one of great
dignity and honor. Few public men have been free from the
pleasing thought that the presidency might come to them.
General William T. Sherman declared that he would not accept
the office if elected, for a man who had commanded a hun-
§ 127] Dignity. 275
dred thousand men in the field had no need of the presidency ;
but Henry Clay, Daniel Webster, Stephen A. Douglas, James
G. Blaine, Thomas B. Reed, and many other great men have
gone to their graves in disappointment at missing the great
reward. The president is the head of the nation: to him
are addressed invitations from foreign governments to partici-
pate in international congresses and in national festivities ;
to him come official visitors from abroad, such as Prince Henry
of Prussia, and a delegation of French notabilities in 1902;
wherever he goes he is received with respect and honor, irre-
spective of party. The dignity adheres to a president after his
retirement from office: General Grant, for instance, in 1877
made a journey round the world, and was everywhere received
with a distinction usually reserved for titled sovereigns.
Other republics have presidents, notably Switzerland and
France : the Swiss president, however, is only chairman of an
executive board ; the French president is only a figurehead,
having little actual authority. The president of the United
States is the responsible head and director of three great
national services : he appoints, instructs, and may recall all our
foreign representatives ; he appoints, commands, and may
dismiss all military and naval officers ; he appoints and directly
or indirectly controls all the civil officers of the government,
down to the postmen and the clerks in custom-houses. No
president has power to carry the country far beyond its own
purposes, either for good or ill ; but every president has power
swiftly and efficiently to apply a freshly-formed public opinion,
and he is much less affected by local currents of influence than
is Congress. For instance, in the long discussion over coinage
and currency, from 1878 to 1898, the presidents frequently
vetoed acts of Congress ; and finally the majority proved to be
on their side. The president is not only the official head of
the government, and the most distinguished personage ; he is
on the whole the most powerful single factor in American
government.
CHAPTER XVI.
NATIONAL CIVIL SERVICE.
128. References.
Bibliography: A. B. Hart, Manual (1908), §§ 109, no, 212, 213,
292; Cyclop, of Am. Govt. (1914), I, i9) 202, 285, 687; II, 198, 273, 506,
654, 763; III, 180, 374, 381, 564; Channing, Hart, and Turner, Guide
(1912), §§ 176, 186, 196, 203, 204, 241, 254, 25s; F. A. Cleveland, Orgow-
ized Democracy (1913), §336; P. O. Ray, Pol. Parties (1913), 295-297,
327-332; C. R. Fish, Civil Service and Patronage (1905), App. D.
The Cabinet: R. L. Ashley, Am. Federal State (1911), ch. xv; J.
A. Fairlie, National Administration (1911), chs. iv-xvii; J. H. Finley,
Am. Executive (1908), ch. xiii; M. L. Hinsdale, President's Cabinet (1911);
H. B. Learned, President's Cabinet (1912); R. B. Mosher, Executive
Register (1903); Cyclop, of Am. Govt. (1914), Arts, on Agriculture,
Department of ; Attorney General of the U. S.; Cabinet of the President;
Commerce, Department of; Executive Departments; Interior, Depart-
ment of; Justice, Department of; Labor, Department of; Navy, De-
partment of; Post Office Department; State, Department of; Treasury
Department; War, Department of; J. Bryce, Am. Commonwealth (ed.
1910), I, ch. ix; J. P. Hill, Federal Executive (1916). — Sources: P. S.
Reinsch, Readings of Am. Govt. (1909), ch. ix; Senate Reports, 47 Cong.,
2 sess. (1881), No. 837; annual reports of members of the Cabinet;
J. A. Garfield, Cqbinet Officers in Congress, in Works (1883), I, 61-72.
The Civil Service: C. R. Fish, Civil Service and Patronage (1905),
chs. i-viii; Cyclop, of Am. Govt. (1914), Arts, on Appointments to Office;
Civil Service Commission, Federal; Civil Service Examinations; Civil
Service, Federal; Civil Service, Relation of, to Parties; Patronage;
Removal of Public Officials; Spoils Systems; L. M. Salmon, Appointing
Power (1886); C. R. Fish, in Am. Hist. Assoc, Report for 1899, I, 67-86;
W. W. Willoughby, Constitutional Law (igio), II. ch. Ix. — Sources:
Annual reports of the heads of departments; report of the Senate Com-
mittee of 1888 on the executive departments {Senate Reports, 50 Cong.,
I sess., No. 507); Report of the Joint ("Dockery") Committee of 1893
{House Reports, 53 Cong., i sess., Nos. 49, 88); President's Commission
on Economy and Efficiency, Reports {House Documents, 62 Cong., 2
sess., Nos. 458, 670, 732, 854; 3 sess., Nos. mo, 1252, 1912-1913);
276
§ 129] Heads of Departments. 277
J. D. Richardson, Messages of the Presidents (1896-1899); U. S. Civil
Service Commission, Annual Report (1884-); C. A. Beard, Readings
in Am. Govt. (1909), ch. xi; P. S. Reinsch, Readings on Am. Federal
Govt. (1909), ch. xiii.
Civil Service Reform: T. Roosevelt, American Ideals (1897),
No. 7; F. A. Cleveland, Organized Democracy (1913), §§ 337-343; P.
O. Ray, Pol. Parties (1913), chs. xiv, xv; T. Roosevelt, Strenuous Life
(1900), 41-112, 125-152; C. R. Fish, Civil Service and Patronage (1905),
chs. X, xi; F. J. Goodnow, Administrative Law (1905), bk. iv, chs. iii,
iv; E. E. Sparks, National Development (1907), chs. x, xii; J. Bryce,
Am. Commonwealth (ed. 1910), II, ch. Ixv; G. W. Curtis, Orations and
Addresses (1894), II, 477-508; D. B. Eaton, Govt, of Municipalities
(1899), chs. vii, viii. — Sources: Am. Pol. Sci. Review; Good Govern-
ment (monthly periodical); National Civil Service Reform League,
Proceedings; United States Civil Service Commission, Annual Report
(1884-); A. B. Hart, Contemporaries (1897-1901), III, § 158; IV,
§§ 197, 199, 202.
129. Heads of Departments.
The president not only acts by his own words and deeds ;
he is also the head of the largest body of persons employed
under one general direction within the United States. The
total number of members of the House and Senate, with all
the officials of both houses, is only 1,600 ; the United States
judges, clerks, marshals, deputies, and other judicial officers
are only about 2,250. There are, however, 236,000 federal
executive officials and employees, divided like an army into
various grades of officers and privates.
Highest of all are the nine heads of departments, commonly
called members of the cabinet. The constitution simply au-
thorizes the president to " require the opinion in writing of
the principal officers in each of the executive departments,"
and authorizes Congress to vest the appointment of inferior
officers " in the heads of departments." It was understood
that there were to be such offices as had been constituted by
the old Congress in 1780 and 1781 ; but all the details were
left for later legislation. Accordingly, in the course of a cen-
tury nine cabinet offices have been created and their duties
defined.
278 National Civil Service. [§ 129
In the early statutes for organizing these offices, the prece-
dents of the Confederation were first followed by establishing
Departments of Foreign Affairs, Treasury, and War. In the
act of 1 789 for creating a judiciary, there was also a clause
providing an attorney-general ; but not till 1870 was the formal
Department of Justice organized, of which he is the head.
The Navy Department was subdivided from the War Depart-
nient in 1798, at the beginning of a naval war with France.
There was a postmaster-general under the Confederation, and
also under the federal government from 1 790 ; but it was not
till Jackson's administration that the president recognized him
as equal to the secretaries. In 1849 various functions were
withdrawn from the other departments to create a Depart-
ment of the Interior. In 1889 the previous Bureau of Agri-
culture was raised to a department with a secretary. In
1903 a ninth subdivision, a Department of Commerce, was
organized by act of Congress. All the heads of departments
are appointed by the president, subject to confirmation by
the Senate. For many years the salaries of the officers were
meagre ; each member of the cabinet now receives ^8,000
a year.
Most of the great functions of government are assigned to
one or the other of these departments, (i) The secretary of
state is in charge of foreign representatives and negotiations,
and holds interviews and correspondence with resident min-
isters from foreign countries. (2) The secretary of the
treasury has the most laborious and the most responsible
office : he is in charge of the public accounts, and of the
collection, safe-keeping, and payment of the public money.
(3) The secretary of war is, under the president, the head of
the army and of the various clerical offices connected with
the army; James Monroe in the War of 1812, and Edwin M.
Stanton in the Civil War, acquired great reputation by their
performance of these duties. (4) The attorney-general is
the legal adviser of the president and heads of departments,
and is also the prosecuting officer for the federal government,
§ i3o] The Cabinet. 279
and represents its interests as counsel. (5) The secretary of
the navy has charge of the construction of ships and mainte-
nance of the force, and gives orders to the officers. (6) The
postmaster-general manages an important public service, and
has by far the greatest patronage, since he appoints and
commissions about 90,000 postmasters and postal clerks.
(7) The secretary of the interior has charge of public lands,
pensions, Indian affairs, patents, and other important sub-
jects. (8) The secretary of agriculture supervises a variety of
special services, such as the Bureau of Animal Industry, the
Forestry Division, the Weather Bureau, and the experiment
stations which are scattered through the states. (9) The sec-
retary of commerce has charge of statistics and of corporation
accounts.
A few other functions are given to bureaus or commissions
which are not subordinate to any of the nine great depart-
ments. The Government Printing-Office is carried on by a
public printer appointed directly by the president. In Wash-
ington and elsewhere the government maintains numerous sci-
entific bureaus, especially the National Museum, the Bureau of
Ethnology, and the Smithsonian Institution. Among the in-
dependent services are three offices which are almost the only
examples of administration carried on by a national executive
board : the Fish Commission, the Interstate Commerce Com-
mission, and the Civil Service Commission. The Interstate
Commerce Commission, created in 1887, is really an adminis-
trative court to decide questions of transportation. The Civil
Service Commission, created in 1883, watches over the se-
lection of about 120,000 subordinate employees, distributed
among the various departments.
130. The Cabinet.
Inasmuch as the president exercises such large executive
powers, it is remarkable that he was not surrounded by a
council which should have some power to check him. In
the Federal Convention various plans were made for a council
28 o National Civil Service. [§ 13°
of state, or privy council; but all these provisions were
dropped, perhaps because the Senate has a constitutional
check upon treaties and appointments.
The nine heads of departments by their association in
the cabinet act as one federal instrumentality and supply the
place of a constitutional council. The name "cabinet," as
employed in England and on the continent, means the parlia-
mentary ministry. The American cabinet is wholly different: —
(i) The members are appointed by the president and con-
firmed by the Senate, and are not really responsible to either
house of Congress. (2) They are appointed singly; and
if one is compelled by public sentiment to resign, the others
remain. (3) The cabinet has no official relation to the prep-
aration or passing of measures in Congress.
The American cabinet is simply composed of those heads
of great executive offices whom the president chooses to invite
to meet him from time to time in council. He may summon
six and leave out the other three ; or he may, like Jefferson, for
many months hold no cabinet meetings at all. By tradition
and practice, however, any man invited to accept a cabinet
position understands that the president will make him one of
a body of habitual advisers, and will usually consult him before
taking any important step with relation to his department.
Yet the president is not bound to ask or to take the advice
of the cabinet on any public measure. For instance, in
September, 1862, President Lincoln called his cabinet to-
gether and invited them to listen to the draft of his proposed
proclamation of emancipation, clearly stating that he did not
ask their approval, since he had made up his mind to issue
it. It is believed that Franklin Pierce used to poll his cabinet
and govern himself by the majority vote ; but no other presi-
dent has ever admitted that the majority, or the whole, of his
cabinet could control his action.
In choosing his cabinet, the president looks first of all for
strong men who fairly represent his party. Personal friendship
often goes a long way in such selections : for instance, Jackson
§13°] The Cabinet. 281
appointed John H. Eaton, a man of little public experience, to
be secretary of war. The president tries to represent the vari-
ous geographical sections, and hence it is uncommon to select
two cabinet members from the same state. He tries to recog-
nize different wings of his party : thus, Lincoln appointed four
old Democrats and three old Whigs to his cabinet in 1861 ; he
said that there was a perfect balance, because he was the fourth
old Whig.
In the act creating the secretary of state in 1789, by the
tie vote of Vice-President Adams, a^ clause was introduced
recognizing the right of the president to remove heads of
departments without consulting the Senate. Except in two in-
stances, the possession of the power has prevented the neces-
sity for using it : John Adams removed Timothy Pickering,
secretary of state, in 1800; and Jackson removed William J.
Duane, secretary of the treasury, in 1833. Johnson suspended
Edwin M. Stanton, and tried to remove him, in 1867; and
William W. Belknap resigned in 1875 to avoid impeachment.
In many cases, however, members of the cabinet have resigned
because they could no longer agree with the president : thus,
Lewis Cass withdrew in i860 because he thought President
Buchanan was not sufficiently active against secession.
If a president is reelected, he commonly carries over the
whole or a part of his previous cabinet, and sometimes a man
has been retained even beyond eight years : William Wirt was
attorney-general continuously from 181 7 to 1829, and Albert
Gallatin was secretary of the treasury for thirteen years, from
1801 to 1814. Nevertheless, cabinet changes are frequent:
the only president who lived through his term without a change
in his cabinet was Franklin Pierce. Frequently, in case of a
vacancy, a man is moved from one place to another : thus,
Richard Olney was made attorney-general in 1893 and sec-
retary of state in 1895. The most remarkable case of resig-
nation was that of five of the six members of the cabinet in
September, 1 841, as a protest against President John Tyler.
Inasmuch as the president selects his own secretaries and
A'
282 National Civil Service. [§ 131
has the power to dismiss them for reasons that seem good to
him, he can secure harmony and cooperation. When, in 1833,
Secretary Duane refused to remove the government deposits on
the president's direction, Jackson forthwith removed him and
appointed Taney, who took the required step. When, in 1886,
it was found that Secretary Manning of the treasury was giving
orders to capture Canadian seaUng vessels on the high seas,
and that Secretary of State Bayard was protesting against the
capture of American fishermen, the president interposed and
decided upon a single policy.
The president is dependent upon the secretaries for advice,
for intimation as to the public feeling of the country, and for
the actual performance of their duties in cheerful cooperation
with himself. The cabinet is a kind of executive exchange,
in which the members learn to know what is going on in the
government ; and the president's attitude is constantly affected
by the opinion of his advisers, although he is under no consti-
tutional obligation to take it. A new president, whether he
comes in by election or by succession from the vice-presidency,
is justified in changing his cabinet, and invariably does make
changes sooner or later.
131. Presidential Removals.
The power of the president to remove at his discretion
applies to all officers whom he appoints, except to United
States judges, -and to military and naval officers, who ordina-
rily have a right to a court martial. Constitutionally, the presi-
dent appoints judges, foreign ministers and consuls, and all
others except inferior officers; Congress decides where the
line is drawn between higher and inferior. In 1896 there
were 4,815 presidential executive officers confirmable by the
Senate, all of whom were removable by the president at his
discretion.
The debate on the power of removal in 1789 turned on the
question whether the removal of officers is an incident of their
appointment (in which case removal must be approved by the
§ 131] Presidential Removals. 283
Senate), or is a part of the president's general duty faithfully
to execute the laws of the United States. The experience of
the states, and especially of the cities, shows that it is contrary
to the public interest to allow a state Senate or a board of
aldermen to block removal, and that Congress decided wisely
in accepting the second doctrine.
This important decision once made was adhered to for
nearly eighty years. In 1867 the two-thirds majority of Con-
gress passed over the president's veto a tenure-of-office bill,
under which the consent of the Senate was practically required
for the removal of cabinet ministers and other presidential
appointees. President Johnson attempted to test the consti-
tutionality of this statute by suspending Secretary Stanton.
In i86g, when President Grant came in, the most important
part of the act was repealed, and in 1885 the rest of it; so
that the country has returned to the earlier practice.
At the beginning of the federal government it was not usual
to define the terms of officials, except that marshals and district-
attorneys were appointed for four years only. In 1820 Sec-
retary Crawford of the treasury secured the passage of an act
under which the terms of certain officials who handled public
money were to be four years ; and this principle has since been
extended to most of the important federal officials, including
the chiefs of many bureaus, the governors and judges of terri-
tories, Indian agents, collectors and surveyors of the customs,
pension agents, and especially postmasters having salaries of
$1,000 or upwards.
The result is that the commissions of nearly all the impor-
tant officers of government expire at some time within the four
years' term of any president, without raising the issue of re-
moval. Although the cabinet officers and some other im-
portant officials are appointed without limit of term, they .are
precisely the officers who are necessarily changed when a new
president comes in : hence, four years is considered the nor-
mal term for federal office ; one reappointment is unusual, a
second reappointment very rare. In this respect our. system
284
National Civil Service.
[§ 131
is entirely different from that of most other civilized countries,
in which such appointments are commonly made for good
behavior.
Yet the power to remove is absolutely necessary for efficient
government. The national government is responsible for de-
fence, for international relations, postal intercourse, and many
other functions in which unity and persistency of policy are
necessary. Unfortunately, this salutary power, used during
forty years for the benefit of good administration, soon after
1829 became one means of demoralizing the public service
and discouraging capable defence. The following table (pre-
pared by Professor C. R. Fish) well illustrates this subject.
The figures are for civil officers only, military and naval re-
movals having been left out of account.
t
S
a
0.
w
(2)
ui
0 £ S
■oSS
«j.2 0
ni 4) tX
(3)
5
'S
1
0
■«
(4)
§
c
lU .
il
c 0.
c «
(5)
S
u
la
c «
■3 >-
0. «
(6)
g
3
-0
c
.2 m
B «
(7)
g
'5
0.
a.
ct
.M
'5 .
•V <n
3 E
(8)
0.
S
3
&"«
°i
H 2
(9)
0 j2
ss
So
3_
c a
^^
^ 4)
-2-1
Ph ft
Washington . .
John Adams . .
Jefferson . . .
Madison . . .
Monroe . . .
J. Q. Adams . .
Jackson . . .
Van Buren . .
Harrison and Tyler
Polk
Taylor ....
Fillmore . . .
Pierce ....
Buchanan . . .
Lincoln ....
13
14
48
4
17
5
164
26
375
225
44
45
676
197
862
455
4
5
II
20
10
2
26
17
15
3
17
5
75
14
25
200
2
8
2
4
58
30
60
108
43
38
203
46
142
2
I
I
9
6
5
6
8
2
12
I
II
25
5
I
3
I
10
42
2
2
4
8
3
2
2
■7
40
17
21
109
27
27
12
252
80
458
342
540
88
823
458
1457
903
433
824
610
924
929
1520
2669
Johnson . . .
71
Total . . .
3169
445
762
89
20
1089
40
5614
§ 132] Appointments and Removals. 285
It will be seen that the largest number of removals in pro-
portion to presidential offices was during Lincoln's administra-
tion, .a time of confusion and national danger; but almost
every president, by removal or by expiration of commission,
changes at least seven tenths of the presidential officers, even
though the preceding president was of the same party. Such
a state of things cannot be reached by act "of Congress, for
the president is not subject to legislative control in the exer-
cise of either his appointing or his removing power. Con-
gress cannot in any way designate the person who is to fill an
office : in 1884, when a bill was passed authorizing the presi-
dent to appoint Fitz-John Porter colonel in the regular army,
the president vetoed it on the ground that Congress was not
competent to confer such authority. In 1864, however, Con-
gress established a class of consular clerks, with the provision
that, if the president removed them, he must state the reasons
for removal ; and no president apparently has protested. On
the other hand, presidents have repeatedly refused to submit
papers to the Senate bearing upon the removal of officers.
Many other countries have half-way disciplinary measures
for delinquent officials, such as loss of pay for a few weeks or
months, or transfer to an unattractive part of the country.
Such partial measures are almost unknown in the United States
service : most of our officials do their duty, obey orders, treat
the public civilly, and feel a pride in their performance of
duty ; where they are remiss, the only way of securing good
service is to use the power of removal in obstinate cases.
132. Minor Appointments and Removals.
Under the constitution. Congress may by law vest the ap-
pointment of such inferior officers as it thinks proper " in the
president alone, in the courts of law, or in the heads of de-
partments." (i) Thirty-six officers, including the librarian of
Congress and the public printer, are appointed and removed
by the president alone. (2) The courts are authorized to
appoint their own clerks and reporters, and some clerical
286 National Civil Service. [§ 132
officers. (3) The remainder of the vast number of minor
officials of every grade are nominally appointed by the heads
of- departments. In practice, a great variety of influences
work upon those who have the power of appointment. The
president frequently puts pressure upon his secretaries to
designate persons in whom he has confidence. The influ-
ence of senators 'and representatives over minor appointments
within their districts is even stronger than over presidential
appointments. For instance, the postmaster-general appoints
and commissions all the 72,000 fourth-class postmasters hav-
ing salaries of less than ^1,000 each : one of the assistant
postmaster-generals is detailed to make the appointments,
subject of course to the overruling of the postmaster-general ;
and most of the places are filled on recommendation of meng-
bers of Congress or other political leaders.
The federal civil service is carefully organized in- subdi-
visions. Nearly every department has several assistants to
the secretary, — there are three assistant secretaries of state,
and four assistant postmasters-general ; every department has
from five to twenty bureaus, at the head of each of which is a
chief clerk or other executive officer. Most of these officers,
except where the appointments are subject to confirmation,
are now included in the classified competitive service, and
protected by an executive ifule against arbitrary removal.
A great number of the clerks are nominated by the heads
of their offices : for instance, the collectors of customs and
of internal revenue appoint deputies, the commissioners of
internal revenue appoint agents, the superintendent of the
mint appoints all the officers employed in that office, regis-
trars of the land office appoint clerks, and so on. All these
appointments are, however, subject to revision by the heads
of the departments.
The general principle is that the power which appoints may
also remove ; hence the heads of departments have nearly
unlimited power over the minor officials, and for many years
the result was a changeful public service. Down to 1829 it
§ 132] Appointments and Removals. 287
was tacitly understood that subordinate officers of all kinds
held during good behavior ; but the political removal of the
heads of offices in Jefferson's administration was undoubtedly
followed by removal of minor employees. It was not till the
introduction of the so-called ," spoils system " into the national
government in Jackson's administration that the principle was
adopted of systematically displacing federal employees of all
kinds because they did not agree in politics with the presi-
dent for the time being. Jackson has been much maligned :
there was nothing like a clean sweep of the presidential offices
during his administration; but the political removals resulted,
no doubt, in the disorganization of many public offices and
in the ejection of many faithful subordinates. From Jackson's
administration to Arthur's, the whole civil service has been
demoralized every four years by wholesale political removals ;
and even more recently a postmaster-general boasted that he
was cutting off the heads of a hundred fourth-class postmasters
every day.
The underlying reasons for political removals are two,
( I ) The president and his cabinet desire to oblige their per-
sonal and political friends by giving them offices ; and the only
way to find plenty of places is to remove people without regard
to their abilities or services. An interesting example is the
appointment, by President Pierce in 1853, of his classmate
Nathaniel Hawthorne to be consul at the lucrative post of
Liverpool. (2) The holders of many federal offices have been
expected to do party work, — to organize the primaries, to
get out the vote, to make up slates for nominations ; and that
work can be performed only by political friends. An example
is Buchanan's appointment of Joseph B. Baker to be collector
of the port of Philadelphia.
If the object of the federal government is to give first one
political party and then the other an opportunity to dissemi-
nate its principles, to instruct voters, and to organize forces
for the next election, then the system of political proscription
is reasonable. If the office of government is to carry on its
288 National Civil Service. [§ 133
functions as effectively and economically as possible, then it
is both wasteful and wrong to dismiss experienced employees
simply to make room for inexperienced persons. Further-
more, if appointments and removals depend on political favor,
the usual incitement to good service is taken away : the poor-
est official may be kept in if he does good party service ; the
most faithful official may be dismissed without a day's notice.
Another result of the spoils system is an ignoble personal
scramble both for appointments and for retention in office.
In scores of instances the head of a department, on coming
into office, has dismissed an incompetent or a disobedient clerk
only to find within a few hours that the offender had behind
Aim as " influence " a powerful senator or representative or
local party leader, who insisted on his being restored.
Under such conditions of uncertainty, it is remarkable that
the federal service has been so honest and efficient. The
worst case of defalcation in the history of the government was
that of Samuel Swartwout, collector of New York from 1829
to 1838, whose accounts proved to be short by more than
$1,000,000. Since that time the government bookkeeping
has improved, better checks have been devised, and during
the last thirty-five years the loss to the government from the
dishonesty of its servants has been very small. On the other
hand, the loss to the public from rapid changes, especially
among clerical offices, is difficult to estimate : it means a
poorer service than it is reasonable to expect, for more money
than ought to be paid.
133. Reform of the Civil Service.
The evils of appointment to minor office for political reasons,
and of removals for the same reasons, very early became
evident. Even in Jackson's administration there were inves-
tigations and reports of committees on these abuses ; and
President William H. Harrison, when he came into office in
1 84 1, seemed disposed to forbid removals for political reasons.
But the attention of the country was speedily diverted by the
§ 133] Civil Service Reform. 289
terrible struggle over slavery, and then by the Civil War ; and
previous to 1883 Congress passed only four statutes on this
subject : —
(i) The Four- Year-Term Act of April 14, 1820 (applying
to collectors of public money), was really intended to enable
Secretary Crawford to build up a political machine.
(2) An act of March 22, 1853, provided for the classifica-
tion of most of the clerks in Washington : no clerk was to be
appointed except on an examination conducted by the head
of the office. Inasmuch as the chief upon whom the pressure
to appoint was put was also the examiner, it is not to be won-
dered that the act was a farce. Some of the questions asked
of candidates under those examinations were : " Where would
you go to draw your salary?" "How many are four times
four?" "What have you had for breakfast?" "Who rec-
ommended you for your appointment? "
(3) An act of 1864 provided for the appointment of thir-
teen consular clerks, by examination in the State Department.
(4) By act of March 3, 187 1, a great reform was initiated :
the president was authorized to prescribe regulations for the
admission of persons into the civil service, and to ascertain
the fitness of each candidate. The responsibility of organiz-
ing a new method of appointment was thus thrown upon
President Grant, who was heartily interested in the reform.
He appointed a good commission, with George William Curtis
at the head; but in 1873 Congress refused to make further
appropriations, and for the time the reform failed.
General Grant's commission drew up rules which included
the great principle of competitive, instead of pass, examina-
tions ; and a few local collectors and other officials kept up
such examinations in their districts. During the next ten
years, the federal office-holders were repeatedly assessed a
percentage of their salary for the campaign fund of the party
in power, thus emphasizing the fact that federal officials, paid
out of the federal treasury, were expected to be party agents.
In 1 88 1 President Garfield was assassinated by a disappointed
19
290 National Civil Service. [§ 134
office-seeker, and in 1883 was secured the first effective civil-
service law. Under it, during the past twenty years, nearly
all the minor officials of the government except fourth-class
postmasters have been placed under a system of appointments
which ensures fitness, and which practically guarantees them
against removal for political reasons.
134. Civil Service Commission.
The act of January 16, 1883, is the basis of the present
federal civil service, , It does not include elaborate details
either on appointments or on removals, but authorizes the
president to promulgate rules at his discretion. It lays down
several definite principles, which, to use the convenient and
applicable term of Mr. Roosevelt, create a "merit system " as
opposed to the old " spoils system."
(i) The act provides for the classification of clerks and
other officers into four groups, according to their compensa-
tion ; and hence all the persons subject to competitive exami-
nation are said to be in the "classified service." (2) It
creates a commission of three (not more than two to be of
the same political party), to be appointed by the president and
Senate, and removable by the president. (3) Examinations
are to be open and competitive, and practical in their character,
a period of probation to precede final appointment. (4) Ap-
pointments are to be apportioned among the several states
and territories on the basis of population, — a clause difficult
to apply. (5) Political assessments by any federal officials,
or in any premises occupied by federal offices, are forbidden ;
and no person can be removed for refusing to contribute to a
political fund. (6) No senator or member of the House is
allowed to make any recommendation for the offices included
in this system. (7) Persons honorably discharged from the
military or naval service by reason of disability resulting from
wounds or sickness incurred in the line of duty are to have a
preference, a provision which practically submits them to a
pass examination only. (8) The law is not to apply to any
person nominated for confirmation by the Senate.
§ 134] Civil Service Commission. 291
President Arthur at once proceeded in good faith to put this
law into execution. He appointed a commission, upon which
six years later came Theodore Roosevelt of New York, the
most efficient of all those who have ever been connected with
the commission. President Cleveland, President Harrison,
and President Roosevelt each in succession made large exten-
sions of the system. Beginning with some of the clerks in
Washington and in large post-offices and custom-houses, the
system has gradually been extended to cover almost all the
clerks in Washington, in the smaller post-offices, custom-houses,
and revenue offices throughout the country, in the railway-
mail service, the letter-carrier service, and the Indian service.
The present exceptions to the classified service (including
certain officers within that service which it has been found
impracticable to classify as competitive), number about
80,000 persons, as follows: (i) the presidential offices;
(2) certain confidential or responsible offices, — as private
secretary, cashier, and so on, — for which the head of the
office has a right to choose his own man ; (3) the fourth-
class postmasters.
The Civil Service Commission has instituted a system of
promotions from the lower to the higher grades, and usually a
man enters the service through the lower grade and works up ;
hence government employees are anxious to make good records
for efficiency in their offices. This system does not always
secure the rise of the best men, and has been freely criticized.
The Civil Service Act says nothing about removals, except
that no one shall be removed for refusing to subscribe to a
political fund, and protection is established through an execu-
tive rule only ; nevertheless, in practice the merit system is
almost a complete bar against political removals. The head
of an office does not like to part with efficient subordinates,
for he wants to have his work done. Even under the spoils
system a large proportion of the removals were made against
the real wish and interest of the chiefs, in order to create
vacancies to be filled by political appointees, presumably less
292 National Civil Service. [§ 134
helpful ; and old and superannuated public servants were likely
to suffer. Under the classified service the man with a political
backing cannot get an appointment unless he stands high on
the list ; hence removals are infrequent, and are usually in-
tended for the good of the service. Indeed, one of the minor
defects of the merit system is that, since there is no retiring
allowance for civil offices, kind-hearted heads of departments
hesitate to remove faithful employees who have grown old and
can no longer perform their duties.
The Civil Service Commission holds its examinations
throughout the country. Papers, copies of which are always
kept for later reference, are made up by official examiners,
with special attention to the particular service to which appoint-
ments are to be made : a copyist, for instance, must write
neatly and spell correctly • a letter-carrier must have a good
memory and a good physique ; a book-keeper must be accu-
rate in figures. A favorite falsehood about the examinations
is that people are appointed because of their knowledge of
totally unnecessary details, such as the distance from the earth
to the moon. Such questions are not to be found in the
papers of the National Commission, except in examinations for
special positions ; a government astronomer, for instance,
might advantageously know the distance from the earth to the
moon.
- The practical difficulties in the way of the proper enforce-
ment of the Civil Service Act are many : —
(i) An undisguised hostility is felt by many members of
Congress, who feel deprived of a source of political strength
because they can no longer make effective recommendations
for office ; though many members feel it a great relief not to
be called upon to make decisions between rival candidates.
(2) There is a terrible pressure for the comparatively few
offices left out of the classified service. For instance, when
a census bureau was created in 1899, Congress so arranged
it that nearly all the clerkships were filled on the personal
recommendation of members.
§ 134] Civil Service Commission. 293
(3) A few heads of offices seek to evade or to defy the
statute. When a vacancy occurs, the head appHes to the Civil
Service Commission, which certifies the three highest names
on the hst of persons examined for that kind of position ; if
the chief does not know any of them, he commonly picks out
the highest on the list. An ingenious official in Chicago asked
for a certification, appointed a man, forthwith removed him,
asked for another certification, appointed the next man and
removed him, and kept it up till he reached a man well down
the list whom he had set out to favor. Other heads of offices
sometimes appoint men without the least reference to the
Civil Service Commission ; in such cases the Commission is
apt to lay the circumstances before the disbursing officers of the
treasury, who frequently refuse to honor warrants for salaries
for such persons, on the ground that they are not legally in the
service. In spite of the absolute prohibition of the statute,
political assessments are sometimes made even by heads of
offices and by senators and representatives.
(4) The complexity of the service causes trouble. The
number and variety of offices is such that it is difficult to meet
all cases ; amendments to rules are frequently submitted to the
president and by him put in force, and thus the rules become
complicated. The question of confidential offices also makes
trouble and confusion : some heads of offices strive to include
persons whose service is only clerical ; others detail a man
appointed as a laborer or a messenger (and hence outside the
civil service rules) to perform duties which ought to come
under the classified service. The appointment of laborers in
the government establishments has been greatly improved by
the adoption of registration rules. This system was introduced
in the navy by Secretary Tracy, adopted by the Civil Service
Commission, and applied to the departments in Washington
and also to arsenals and other army services.
The 72,000 fourth-class postmasters are for obvious reasons
still left outside the classified service : their duties are simple,
and easily learned by any intelligent person ; nearly all such
294 National Civil Service. [§ 134
postmasters have other business ; and, since the government
cannot afford to hire separate buildings, and the fourth-class
post-offices are therefore nearly all in private houses or places
of business, a competitive examination would not result in the
selection of the person who owned the most convenient place
for a post-office. In a few cases members of Congress have
permitted an unofficial choice by. voters of their party, and have
recommended the appointment of the man who had the most
suffrages; but nearly all the fourth-class postmasters are
selected by personal favor or for political reasons.
The ideal method of appointing public officers is that used
by railroads or express companies : to select young men who
seem promising, give them opportunity, and promote the best
of them till they reach positions of responsibility. If the
president and heads of departments were left to themselves,
this is the kind of national service they would work out ; but
the experience of the half century from 1830 to 1880 shows
that no such system is possible under federal government.
Neither the president nor the heads of departments are allowed
free hand, or could under the conditions be allowed it ; for
they must appoint thousands of people whom they cannot
personally know. Some impartial method must be found for
designating officers, at least for first appointments. The com-
petitive examination almost entirely takes out the element of
political influence, and insures at least that the appointee shall
be intelligent : it makes impossible such choices as sometimes
happened under the old regime, where men who actually could
neither read nor write were sometimes appointed as letter-
carriers. A candidate once appointed, the merit system further
allows discretion in promotions, and leaves the head of the
office free to remove for cause. Though not a perfect system,
it has given an efficient administrative body, with a strong
feeling of responsibility and esprit de corps.
CHAPTER XVII.
THE FEDERAL JUDICIARY.
135. References.
Bibliography: A. B. Hait, Manual (1908), §§ 8, 104, 113, 114,
161, 216, 217; E. McClain, Constitutional Law (1910), §§ 137, 141, 144,
15s, 159, 167; Cyclop, of Am. Govt. (1914), I, Sio, 512, 516; II, 151,
260, 318; Channing, Hart, and Turner, Guide (1912), §§ 176, 195, 203,
228; Macy and Gannaway, Comparative Free Govt. (1915), 721 (cases).
Judiciary: S. E. Baldwin, Am. Judiciary (1905), chs. i-vii, ix;
H. L. Carson, Stipreme Court (1892); J. Bryce, Am. Commonwealth
(ed. 1910), I, chs. xxii-xxiv; W. W. Willoughby, Supreme Court (1890);
F. J. Goodnow, Administrative Law (1905), 378-440; J. A. Woodburn,
Am. Republic (1916), ch. vi; E. McClain, Constitutional Law (1910),
§ 138; W. H. Taft, Popular Govt. (1913), Nos. 7-9; W. Wilson, Con-
stitutional Govt. (1908), ch. vi; R. L. Ashley, Am. Federal State (1911),
ch. xvi; B. A. Hinsdale, Am. Govt. (4th ed., 1917), chs. xxxiv-xxxix;
Cyclop, of Am. Govt. (1914), Arts, on Courts, Federal, Jurisdiction of;
Courts, Federal, System of; Impeachment; Judiciary and Congress;
Judiciary and Judicial Reform; Law, Constitutional, American; W.
W. Willoughby, Constitutional Law (1910), II, chs. 1-lvi; T. M. Cooley,
Constitutional Law (1898), ch. vi. — Sources: C. A. Beard, Readings in
Am. Govt. (1909), ch. xv; P. S. Reinsch, Readings on Am. Federal Govt.
(1909), ch. xiv.
Declaring Acts Void: J. B. Thayer, John Marshall (1901), 61-
78, 95-101, 104-110; J. B. Thayer, Cases on Constitutional Law (1895),
I, 9-47, 146-154; E. McClain, Constitutional Law (1910), §§ 142-171;
B. Coxe, Judicial Power and Unconstitutional Legislation (1893); Cyclop,
of Am. Govt. (1914), Art. on Courts and Unconstitutional Legislation;
W. B. Bizzell, Judicial Interpretation of Political Theory (1914); C. G.
Haines, Am. Doctrine of Judicial Supremacy (1914); A. C. McLaughlin,
Courts, Constitution and Parties (191 2), No. i; C. A. Beard, Supreme
Court and the Constitution (19 12); E. S. Corwin, Doctrine of Judicial
Review (1914); H. A. Davis, Judicial Veto (1914); W. W. Willoughby,
Constittitional Law (1910), I, chs. i, ii; W. W. Willoughby, Supreme
295
296 Federal Courts. [§ 136
Court (1890), chs. V. vi; H. L. Carson, Supreme Court (1892), I, 203-
206; 11, 366-378; J. C. B. Davis, in 131 U. S. Reports (1888), App.
ccxxxv-cclvii; J. Bryce, Am. Commonwealth (ed. 1910), I, ch. xxxiii;
K. C. Babcock, Rise of Am. Nationality (1906), ch. xviii; A. B. Hart,
Salmon P. Chase (1899), chs. xiii, xv.
136. History of the Federal Judiciary.
The American judicial system is founded directly on the
English courts, established by the crown to exercise the royal
judicial power. The colonial judges were also usually ap-
pointed by the crown, or by the royal representative, the
governor ; but from the decisions of the colonial courts there
was an appeal to the " king in council," that is, to a judicial
body in England. Neither English nor colonial courts had
authority to hold void an act of Parliament or of the colonial
assembly : they took the law as it was made for them by the
legislatures.
The new states during and after the Revolution created
courts much on the colonial model ; and the Congress of
the Confederation created three kinds of national courts, all of
which were subject to the authority of Congress, (i) Special
commissioners were appointed to settle disputes between states
which could not be impartially tried by the courts of either
state. One of these commissions decided in 1782 that the
Wyoming Valley belonged to Pennsylvania and not to Connect-
icut. (2) The "Prize Committee " of Congress was created
to decide questions of naval captures. (3) To the so-called
" Old Court of Appeals in Prize Cases," with the consent of
some of the states, appeals were brought from the state courts.
It eventually decided over sixty cases.
The establishment of the judiciary in the federal constitution
is one of the most striking features of that great work. For
the first time in the history of the world the three depart-
ments of government were thoroughly and cobrdinately organ-
ized ; for the first time in the experience of federal government
a system of courts was provided, not only for federal cases, but
with the right to hear appeals from state courts ; for the first
§ 136] History. 297
time courts were authorized to disallow state laws, and eventu-
ally to assert a similar power over national legislation.
Although the jurisdiction of the federal courts was carefully
defined by the Constitution, their organization was left to the
discretion of Congress; the only insistence was that there
should be one supreme court, and that the judges should hold
office during good behavior. In 1789 Congress' proceeded to
organize both supreme and inferior courts, and to arrange them
in a progressive system on the model of the then existing state
courts ; and President Washington made the first set of judi-
cial appointments.
The United States Supreme Court has such close and com-
plete power of reviewing cases decided in the inferior courts
that it has included most of the famous American decisions
and many renowned judges, and the chief justice has been a
great figure in the development of American law. The first
three chief justices — Jay, Rutledge, and Ellsworth — had brief
service, few cases, and little opportunity for legal distinction ;
then followed in succession two men whose service covered
sixty-four consecutive years, and who set a strong individual
stamp upon American jurisprudence.
John Marshall (1801-1835) was by far the most remarkable
personality in the whole history of the national judiciary. An
ardent federal politician, diplomat, and member of the cabinet
before his appointment, he became, next after Madison, the
man who did most to put into definite form the principles of
the federal constitution. During his thirty-four years of ser-
vice, Marshall himself drew a large number of opinions, espe-
cially in constitutional cases. By his extraordinary power of
lucid statement of legal principles, and by an equal power of
discerning what the American people desired their government
to express, he made himself the most famous of all American
jurists ; and he had the triumph of bringing to his. point of
view a succession of associate justices, who were introduced
into the Supreme Court in the hope of curbing him.
Uiider Marshall's successor, Taney (i 835-1 864), the per-
298 Federal Courts. [§ 137
sonnel and the standpoint of the court were completely
changed. Taney had a strong legal mind, but accepted the
Jeffersonian principle that the federal government ought to
govern as little as possible ; and under his guidance the United
States courts somewhat receded in power. The Civil War was
so abnormal that the courts were bewildered, and made almost
no decisions in restriction of the mighty national powers that
suddenly sprang up. In 1864 Salmon P. Chase, recently
secretary of the treasury, was made chief justice in a court
for a third time rejuvenated by new appointments ; and under
him began a series of constitutional decisions, chiefly arising
out of the Civil War and Reconstruction, which showed a
renewed sense , of power. Chase was succeeded by Waite
( 1 874-1 888), a man of much less individuality. Since 1888
Fuller has been chief justice.
137. Federal Judges.
The number of United States judges in 1901 was as follows :
Supreme Court justices, 9 ; circuit judges, 27 ; district judges,
70 ; judges of the United States Court of Claims, 5 ; judges of
the United States Court of Private Land Claims, 5. The
influence of strong personality has been shown on the national
bench not only by chief justices, but by such associate jus-
tices as James Wilson, Story, Woodbury, McLean, Miller, and
Gray, and by many circuit and district judges. Courts are
not free from human interests and passions : by the great
dignity of their office, by the conservative tradition of the
legal profession, by the effective though indirect way in which
they decide public questions, judges are less subject to gusts
of popular feeling than are other officials ; but this advantage
is gained only by extreme care in selecting them.
Every judge of the United States must be appointed by the
president, subject to the confirmation of the Senate. This
method was not common in 1787, for most of the state judges
were chosen by the legislatures. Once inserted in the consti-
§ 137] Judges. 299
tution, it has never been altered, although most states have
adopted the system of elected judges. The constitutional
term is for good behavior; and the emolument of. a judge
cannot be diminished during his continuance in office. As
young men are frequently appointed, the result is often a long
term of service : six of the Supreme Court justices — Marshall,
Washington, Johnson, Story, Wayne, and Field — each sat on
the bench more than thirty years ; William Cranch was a cir-
cuit judge for fifty years, and James S. Morsell for forty-seven
years.
Although there is no constitutional requirement to that effect,
none but lawyers are ever appointed to the United States
bench ; yet it is remarkable that not one of the chief justices
of the Supreme Court of the United States since 1801 had
ever been a judge before his great appointment, and that
three — Marshall, Taney, and Chase — were or had been
cabinet officers, as were several of the associate justices.
Occasionally, though rarely, supreme judges are appointed
out of the circuit and district courts ; Justices Brown and
Brewer were both promoted in this manner. A good state
judge is sometimes transferred, as was Justice Grier of Penn-
sylvania ill 1844, and Justice Holmes of Massachusetts in
1902. Some senators have been made judges, as Justice
Woodbury of New Hampshire in 1845, ^"^ Justice White of
Louisiana in 1894. President Grant in 1871 was very unjustly
accused of making appointments to the Supreme Court with a
view to securing a decision favorable to the legal tenders.
In character and efficiency the United States judges are re-
nowned, though the salaries have been very slowly raised, and
for men of such importance are still unreasonably small. Jus-
tices of the Supreme Court are paid ^12,500 a year; circuit
judges, $7,000 ; district judges, $6,000. By statute, judges
are prohibited from acting as counsel or attorneys, and from
engaging in the practice of the law. This does not interfere
with their acting as trustees of property, but absolutely prevents
^■.heir earning fees as lawyers.
300 Federal Courts. [§ 137
There are five ways in which judges may leave the bench : —
(i) By death. Since 1801 every chief justice has died in
office except the present incumbent, and many of the lower
judges have held throughout their lives.
(2) By resignation and withdrawal from the bench. This
was not uncommon in the early days of the federal republic,
but during the last fifty years has been rare. Justice Curtis
resigned in 1857 because he thought he had been ill-treated by
Chief Justice Taney. It is rare for a judge to seek other
office; yet Circuit Judge Gresham resigned in 1893 to be-
come secretary of state, and Justice David Davis resigned
in 1877 to become a senator.
(3) By resignation on a retiring allowance. Since April 10,
1869, by act of Congress, any judge who has held his commis-
sion ten years and has attained the age of seventy years may
resign, and may continue to draw full salary during the re-
mainder of his life. Judges frequently remain on the bench
after seventy, preferring to be active ; and occasionally men
who have not served ten years, or have not reached their
seventieth year, are retired by special act of Congress.
(4) By discontinuing the office. The only instance of this
method was in 1802, when Congress, under the leadership of
Jefferson, repealed an act passed by the Federalists a year
previous, creating circuit judges ; the judges who had been
appointed a few months before thereby lost their offices,
although they insisted that the act was a diminution of their
salary, contrary to the constitution. This method cannot be
applied to the Supreme Court, as that body was created by
the constitution.
(5) By impeachment. In the whole history of the United
States there have been but two removals by this constitutional
method, — Judge Pickering in 1803 for violence on the
bench, and Judge Humphreys in 1862 for adhering to the
Confederacy.
The dignity of the office is such that the ablest men accept
appointments to the United States bench. The salary is un-
§138] Supreme Court. 301
failing, and the retiring allowance insures a support during life.
Out of the 400 or more persons who have held United States
judgeships, not more than two or three have ever been accused
of corrupt practices, and few of other unjudicial behavior.
Justice Samuel Chase of the Supreme Court was impeached
in 1803-05, but the charges against him were harshness and
political rancor rather than judicial unfairness ; and no con-
viction could be obtained. Throughout the United States,
the judges stand high for probity and for impartial service to
the republic.
138. Federal Courts.
The regular federal courts are divided into four grades.
At the apex of the whole system stands the Supreme Court of
the United States, which has elicited the warmest praise from
nearly all critics of American government, both American and
foreign. The constitution requires " a supreme court " ; but
Congress determines the number of judges, their salary, and to
some degree their jurisdiction. The original court in 1790 had
6 judges; in 1808, 7; in 1837, 9; in 1863, 10; in order to
prevent Andrew Johnson from making appointments the court
was reduced to 8, but was increased in 1870 to 9, where it has
since stood.
The Supreme Court sits in Washington, at present in the
small and rather incommodious chamber at the Capitol which
for many years was occupied by the Senate. It is ordinarily
in session from October till May. It appoints its own mar-
shal, as well as its clerk and reporter. Until recently it was
not the custom to affix to decisions the exact dates when they
were rendered ; hence a case which appears in the books as
decided in the "October term, 1885," may actually have
been decided in the course of that term sometime in 1886.
The method of the court is to hear arguments and receive
printed briefs ; the judges then compare views, and the chief
justice designates some justice to prepare a written opinion.
That opinion is later submitted and discussed. If any mem-
302 Federal Courts. [§ 138
bers of the court are unable to coincide, they have a right to
prepare dissenting opinions : sometimes there will be one
" opinion of the court " and a single dissenting opinion signed
by one, two, three, or four justices ; sometimes each dissentient
prepares his own opinion ; sometimes, as in the Dred Scott
decision of 1857 and the Insular cases of 1901, almost every
justice states his opinion separately, perhaps expressing differ-
ent reasons for coming to the same conclusion.
All these opinions are printed and published in official
volumes, which are universally considered to be the most au-
thentic statements of the principles of the federal constitution,
because they include historical as well as legal arguments, and
because they state not only conclusions but the lines of argu-
ment which led the judges to those conclusions. The publi-
cation of the reports is furthermore a check upon all national
and state courts, since it compels them to take notice of pre-
vious decisions on the same issues ; hence it is an aid to sta-
bility in the constitutional law of the country. The annual
number of decisions made and reported by the Supreme
Court is about 350.
As in the case of state courts, these decisions directly affect
only the parties to the pending suits. If the court decide,
for instance, that a patent belongs to one claimant, the other
party will make himself liable for contempt of court if he
ignores the decision. Other people, not parties to the suit,
may ignore the patent without that penalty ; but they know
beforehand that any suits brought against them on that issue
will result in their defeat.
The inferior courts of the United States are now arranged in
three groups, ascending to the Supreme Court but not corre-
sponding with the subdivisions of the judges : thus, a district
judge may hold circuit court ; a circuit judge may hold dis-
trict court ; a district judge may be transferred into another
district. The underlying idea is that the business shall be
sifted by proceeding from one court to another ; and the system
of exchanging judges makes it possible to use a judge in a
§ 138] Inferior Courts. ^07
district where there is a congestion of cases. If a judge is per-
sonally interested in the case that comes before him, he with-
draws. Many original cases involving issues of fact are tried
by jury.
The lowest regular United States courts are the district
courts (at least one in each state), before which most federal
suits are brought. Next in the series are the circuit courts.
The original plan was that the Supreme Court justices should,
besides their general business, each act as a. judge in a circuit
court, sitting along with a district judge. From the first,, the
Supreme Court justices complained of the hardship of this
double function, and in 1801 a distinct class of circuit judges
was created to relieve them of that part of their work ; but the
act was repealed a year later. The Supreme justices con-
tinued on circuit until 1869, when the country was divided
into nine circuits, and nine circuit judges were again appointed.
Since that law, the Supreme Court justices occasionally appear
and formally open a session ; but the business is practically done
by the special circuit judge or a district judge, or by the circuit
and district judges sitting together. The circuit courts have
original jurisdiction in many cases ; but their business is largely
the hearing of cases removed from state courts in suits where
there is concurrent jurisdiction.
In 1 89 1 it was found that the Supreme Court was about four
years behind its docket, and hence midway between the circuit
courts and the Supreme Court, by act of March 3, 1891, were
created nine " Circuit Courts of Appeals," and additional cir-
cuit judges were provided for ; so that at present seven of the
nine circuits have each three circuit judges, and the other two
have each two judges. To constitute a court, two judges must
sit. On many cases the Circuit Court of Appeals has a final
decision, not subject to appeal to the Supreme Court ; but all
district and circuit court decisions involving the federal con-
stitution, laws, or treaties, or the constitutionality of state acts,
may be reviewed by the Supreme Court,
In addition, the United States has created several special
304 Federal Courts. [§ 139
courts, of which the most important is the Court of Claims in
Washington, composed of five justices with a salary of ^4,500
each. It has power to try cases of claims against the United
States; if it finds money due, it certifies the amount to Con-
gress, which appropriates for the purpose ; it has no power
to enforce a judgment against the United States. By an act
of March 3, 1891, a Court of Private Land Claims was created,
with five justices, their jurisdiction extending only to claims
arising from or under the treaties of territorial cession by
Mexico in 1S48 and 1853.
Entirely outside of the judicial system are several national
tribunals for federal matters. Such are the courts created by
Congress in the District of Columbia, in the territories, among
the Indians, and in the dependencies, under the special powers
of the United States over the seat of government and the
" territory or other property " of the United States. Such are
the military and naval courts martial provided under the gen-
eral authority of the United States to raise and govern armies
and to make war. Such are the administrative tribunals
attached to several of the executive departments : the com-
missioners of public lands and of patents render elaborate
decisions, which are printed in regular series of Reports of
Cases ; the Treasury Department makes rulings on contested
questions within its field of administration. So far as such
decisions involve questions of property and of individual rights,
they are appealable to the regular judicial courts.
139. Process of Impeachment.
A special method of ascertaining the guilt or the innocence
of public officers charged with a crime is impeachment. This
process has two roots : one in the original idea that Parlia-
ment was a " high court," a tradition still preserved in the
English practice of making the House of Lords the final
court of appeal in certain cases ; the other in the desire of
the House of Commons to control the executive business in
England, which they could do only by exercising authority
§ 139] Impeachment. ' 305
over the king's civil officers. The process of impeachment
was hence devised in order to remove from office ministers
obnoxious to Parliament, and it was applied several times
under the Stuarts ; the latest English case was that of Lord
Melville in 1806.
In the colonies there was no process of impeachment, be-
cause the chief executive officers were never subject to the
authority of the assembly ; but the process was revived in
the new state constitutions, and is tolerably frequent against
state officers of every kind.
The process was distinctly set forth in the federal constitu-
tion. The House technically "impeaches," — that is, by a
majority vote it presents articles of accusation ; the Senate
then " tries impeachments." The president, vice-president,
and all civil officers of the United States are subject to im-
peachment, and the process has been directly invoked in
the following cases: — (i) In 1798 William Blount, senator
from Tennessee, was impeached, but escaped on the ground
that a senator was not a civil officer. (2) In 1803 District
Judge Pickering was impeached and convicted. (3) In 1805
Supreme Justice Chase was impeached, but no two-thirds
majority could be obtained against him. (4) In 1830 Dis-
trict Judge Peck of Missouri was impeached for arbitrary
punishment of an attorney, but was acquitted. (5) In 1S62
District Judge Humphreys of Tennessee was impeached for
accepting the office of Confederate judge, and was unani-
mously convicted. (6) In 1868 President Johnson was im-
peached for violating the Tenure-of-Ofiice Act and on other
charges; the test vote was 35 for conviction and 19 for ac-
quittal, and the prosecution failed for lack of one vote.
(7) In 1876 William Worth Belknap, secretary of war, was
impeached for bribery; but the impeachment failed for lack
of one vote.
Thus, impeachment has been attempted by the United
States only seven times : four times against judges, two of
whom were removed ; once against a senator, once against
20
306 Federal Courts. [§ 140
a cabinet officer, and once against a president of the United
States. Undoubtedly the knowledge that there is such a pos-
sibility as impeachment has been a deterrent in the minds of
other public servants. The failure to convict President John-
son was a pubUc advantage, for his real offence was that he
was opposed to Congress ; and he had but a few months more
in office. Had a precedent been established that a president
could be removed because two thirds of the senators did not
like his policy, the independence of the executive must have
been destroyed.
One of the difficulties in applying impeachment is that it
can be invoked only in case of " treason, bribery, or other
high crimes and misdemeanors," and hence will not lie except
for offences which could be punished in the ordinary courts.
Indeed, under the constitution the penalty of impeachment
can be only removal from office and disqualification from
further public service, and the party is thereafter liable to
punishment according to the ordinary law. For the object of
impeachment is not to punish for wrong-doing, but to put the
individual out of the opportunity for further wrong-doing.
140. Federal "Writs.
Like the state courts, the federal judiciary deals almost
exclusively with specific cases. The justices of the Supreme
Court refused to give opinions on the constitutionality of
pending measures when President Washington requested them.
The nearest approach to advice by the courts is the procedure
of the Court of Claims under the so-called '' Bowman Act " of
March 3, 1883, by which the head of any executive depart-
ment, or either house of Congress, or any committee, may
submit or refer any claim or matter for the judgment of the
court, such judgment to be sent to the party requesting the
opinion for his guidance. Under special statutes, federal
judges sometimes make appointments, as of the bankruptcy
commissioners in 1867, and of supervisors of federal elections
from 1873 to 1894.
§ i4o] Federal Writs. 307
The normal function of federal courts s to make judicial
decisions in cases actually brought before them on conten-
tions which involve the actual legal rights of at least two
genuine parties. Nevertheless, like the state courts, they
issue a variety of writs preliminary to suits, often on the rep-
resentation of one party only. Among minor federal writs
authorized by the judiciary acts are the following: (i) scire
facias, used to enforce or vacate a judgment, recognizance, or
patent; (2) quo warranto, commonly directed to a person
holding office in violation of the federal constitution or laws,
or to a corporation, directing it to show cause why its charter
should not be forfeited ; (3) ne exeat, granted in equity cases
to prevent the defendant from leaving the United States; (4)
certiorari, issued to call up for review in a superior court the
record of a proceeding in an inferior court ; (5) supersedeas,
used to stay proceedings which ought otherwise to be carried
forward. Execution is the order or warrant given to an officer
to carry into effect the judgment of the court.
The three most important federal writs are habeas corpus
mandamus, and injunction. The general principle of habeas
corpus has been discussed above. It is frequently invoked
before federal courts in order to test the legality of an arrest
under state authority. In the case of the Haymarket murder-
ers in Chicago in 1886, it was prayed for before the Supreme
Court of the United States on the ground that there were
informalities in the trial contrary to the personal rights guar-
anteed by the constitution : the court declined to interfere.
The writ of inandamus may be directed to individuals or
corporations to compel them to perform neglected duties,
and is often granted by the Supreme Court against lower
courts which have declined to take jurisdiction ; but a more
common use is against federal officials of every kind. Man-
damus has frequently been sought against cabinet officers : in
Kendalls. United States (1838), mandamus was issued against
Postmaster-General Kendall to compel the payment of certain
money.
3o8
Federal Courts. [§ 140
The writ oi injunction takes many forms, (i) It may be a
temporary restraining order, to prevent one of the parties to
a suit from disposing of property, or otherwise altering the
existing status, pending a hearing on the merits. (2) It may
be a permanent injunction forbidding a person to perform
an act which would create consequences that could not be
remedied by a later suit. For instance, injunction may be
sought to prevent a board of directors from issuing new stock
to the prejudice of former stockholders, because such stock
once issued and sold to innocent purchasers could not be
recalled.
(3) Of late years injunction has been pushed much farther.
The United States courts have repeatedly issued " blanket in-
junctions," forbidding all persons from interference with par-
ticular federal functions. The most interesting case is that of
Debs in 1894. The district court in Chicago issued an in-
junction forbidding all persons to obstruct the circulation of
mails or the movement of interstate commerce. Debs was
the leader of a strike in Qhicago which was preventing the
railroads from running, and for alleged refusal to observe this
injunction he was arrested, fined, and imprisoned. The point
made by Debs's counsel was that, if his client had done any-
thing unlawful, he was entitled to a jury trial ; that the court
was not competent to add another penalty not defined by
statute ; and that injunctions did not lie against acts which
were punishable under ordinary criminal law. The Supreme
Court, on appeal, in 1895 affirmed the right of the lower
court to grant the injunction.
The Debs case also illustrates another very important power
of the court, — namely, to punish for contempt of court. This
is an indefinite phrase which covers disrespect by counsel
or witnesses, threats or actual personal violence against the
judge, or neglect or refusal to take notice of writs issued by
the courts ; and sometimes it applies to public or newspaper
statements that the judge is prejudiced. A judge has the
right to direct the marshal and his deputies to arrest any such
§ i4i] Federal Law. 309
offending person and bring him before the court ; an apology
or a promise of obedience may be accepted, or the court may
punish by fine or imprisonment. So far as the personal pro-
tection of the judge goes, committal for contempt is absolutely
necessary ; but the arrest and imprisonment of persons who
are charged with offences which might be punished in the
ordinary method is contrary to the ordinary principles of free
government.
141. Cases involving Federal Law.
The national courts are not created solely to apply national
legislation, but to apply all the various kinds of legislation
to national issues. A federal statute, a treaty, an executive
order, a state constitution or statute, a municipal ordinance,
a vote of the directors of a railroad, may all be parts of the
legal conditions which a federal court must take into account.
In like manner, state courts are constantly called upon to take
cognizance of and to apply the federal constitution, statutes,
and treaties. The fundamental principle is that the national
courts shall, primarily or by appeal, have the right to decide
all cases involving the exercise of federal authority or of rights
and privileges created under the federal constitution. Such
cases may arise either from the nature of the law applied or
from the character of the parties to the suit. Let us first con-
sider the various kinds of law referable to federal courts.
(i) We have seen that on questions not distinctly covered
by the statutes the state courts refer to the "common law," —
that is, to precedents of English traditional law as set forth
in English, colonial, and state decisions. The United States
courts make use oi procedure under the forms of common law,
even without a statute ; but they refuse to take cognizance of
criminal offences or to afBx penalties, unless there be a dis-
tinct federal statute on the subject, and such statutes must
relate only to crimes committed against the United States.
In trials for violation of state laws, no questions are appealable
3 1 o Federal Courts. [§ 142
to the federal courts except those arising out of the federal
constitution or laws.
(2) Exclusive federal jurisdiction extends to "all cases of
admiralty and maritime jurisdiction." This means cases aris-
ing on the high seas and also on internal lakes and rivers, in-
asmuch as such cases may occur outside any state, and always
concern general trade and traffic. A kindred special clause
authorizes Congress to make rules concerning " captures on
land and water," which is really a part of the war power.
(3) An important field of federal jurisdiction is that of
international law. Cases affecting ambassadors, other public
ministers, and consuls are especially mentioned ; but many other
cases arise under treaties or under international relations.
(4) To the United States courts go " all cases in law and
equity arising under the constitution, the laws of the United
States, and treaties made, or which shall be made, under their
authority." This is the broadest field, for it enables the
United States courts to compel the same construction of the
federal constitution in all parts of the Union, and reserves to
federal authority the right of maintaining federal laws. This
power is absolutely opposed to the doctrine of state rights,
which asserts the power to withdraw a state from the opera-
tion of federal laws.
142. Cases involving Federal Parties.
The other reason for special federal jurisdiction is the char-
acter of the parties.
(i) Foreign diplomatic agents as parties may sue or be
sued only in the federal Supreme Court.
(2) Reserved for federal decision are "controversies be-
tween a state or the citizens thereof and a foreign state, citizens,
or subjects." The purpose is to give to the United States,
which controls foreign relations, sole authority over foreign
questions ; but suits by foreign governments are extremely
rare. The emperor of the French in 1870 entered suit in an
admiralty case in California.
(3) Federal in their nature are "controversies to which
§143] Federal Parties. 311
the United States shall be a party." Since all federal criminal
suits are brought in the name of the United States as plaintiff,
this clause alone would give exclusive jurisdiction in federal
criminal law ; but the United States may also sue individuals
for debt, for the non-fulfilment of a contract, or for wrongful
possession of property. The principle is not apphed against
the United States : as a government exercising sovereign
powers, suit will not lie against it without its consent. Such
consent is sometimes given by acts of Congress ; and the
Court of Claims regularly entertains suits on private claims.
In proceeding under the writ of error, the names of the par-
ties are frequently reversed, so that United States v. Jones in
the circuit court appears as Jones v. United States in the
Supreme Court; but such cases are held to be a continuation
of the original suit, and not a case brought against the United
States.
(4) The next great category is that of suits " between
citizens of different states, and between citizens of the same
state claiming land under grants of different states." This
clause gives rise to abundant litigation, for under it a claim
which has arisen solely under state law may be sued in a
federal court. Thus, a citizen of New York may enter suit
to collect a debt against a Massachusetts citizen either in a
Massachusetts court or in a federal court. One object of the
clause is impartiality, which might not be secured in a state
court toward a citizen of another state.
(5) Damage suits against federal officials for illegal be-
havior in office naturally go to federal courts. In France and
Germany, an officer of the government who wrongfully per-
forms an act under color of official authority can be sued only
in an administrative court, practically composed of members
of the executive. In England and the United States the con-
trary principle prevails : an official or an ex-ofificial has no
protection from his relation to national, state, or municipal
government, other than that he may be aided by public
attorneys. Nowhere in the federal system, either in the con-
stitution or in practice, is there any limitation on suits by
3 1 2 Federal Courts. [§ 143
private individuals against public functionaries in the ordinary
courts.
143. States as Parties in Federal Suits.
The judicial power extends also " to controversies between
two or more states ; between a state and citizens of another
state ; and between a state . . . and foreign states, citizens,
or subjects." The provision that states should be amenable
to the jurisdiction of a court was not wholly new in American
government ; for before the Revolution disputes between
colonies, especially on questions of boundary^ had been sub-
ject to decision by the Privy Council in England ; and under
the Articles of Confederation there was a clumsy system for
settling disputes between states by a commission appointed
by Congress. It was, however, almost without precedent in
the history of federal government that a judicial court should
be established before which states should be obliged to appear
as defendants. So far as states were plaintiffs, either against
citizens of other states or against foreign states or citizens, the
constitution thus provided a convenient meeting-ground ; but
in suits of state against state, and especially of citizens of an-
other state or of a foreign state against a state, submission to
the judgment of the Supreme Court was practically a denial
of state sovereignty.
An issue on this question was speedily raised. In 1793 suit
was brought by one Chisholm against the state of Georgia for
payment of a debt. Although the government of Georgia ab-
solutely refused to appear or plead or recognize the jurisdic-
tion of the court, judgment was given by default. At once
the Eleventh Amendment to the constitution was introduced,
passed the Senate by 23 to 2, the House by 81 to 9, and
four years later was added to the constitution. It provides
that "the judicial power of the United States shall not be
construed to extend to any suit in law or equity commenced
or prosecuted against one of the United States by citizens of
another state or by citizens or subjects of any foreign state."
§ 143] States as Parties. 3 1 3
This principle was still further extended from 1882 to 1887
by decisions of the Supreme Court in the Virginia coupon
cases, the point of which was that the state of Virginia had
made the interest coupons on certain bonds receivable for
taxes, but afterwards refused to receive them. A suit against
the state treasurer to compel the reception was held to be
practically a suit against the state, and therefore contrary to
the Eleventh Amendment (/« re Ayres, 1887). This goes very
far toward establishing the principle that there is no judicial
machinery in the federal government through which states can
be compelled to pay money on private suits. In 1S89 the
Supreme Court decided that a state could not, without its
consent, be sued in a United States court by its own citizens.
Nevertheless, some of the most interesting cases ever brought
before the Supreme Court have indirectly affirmed the right
of the United States courts to decide controversies bctwee-u
states and individuals. One of the earliest was the case of
United States v. Judge Peters (1809), in which the Pennsyl-
vania state authorities, by armed militiamen, protected certain
persons against a marshal who attempted to arrest them
under the authority of the United States courts ; the state
eventually gave way and allowed the federal courts to have
their will. In the suit oi Martin w. Hunter'' s Lessee (181 6),
the Supreme Court compelled the Court of Appeals of Vir-
ginia to follow the mandate of a writ of error. In Cohens v.
Virginia (182 1), the Supreme Court laid down the great doc-
trine that, although the Cohens were citizens of Virginia, an
appeal could be obtained through writ of error in a criminal
suit prosecuted against them by Virginia. The court held
(i) that, since the case involved a privilege under federal law
denied by the state court, it was a federal case, even though
a state was a party; and (2) that, since the original suit was
not commenced or prosecuted against Virginia but begun by
the state, and since suit was afterwards continued by the writ
of error, the Eleventh Amendment did not apply.
From that time there have been few attempts to deny the
314 Federal Courts. [§144
authority of federal courts in such appeal cases, and numbers
of suits arise against private parties which involve as collateral
questions the powers of state governments ; so that states are
both directly and indirectly brought before the tribunal at
Washington. In 1833, by the Nullification Ordinance and
subsequent legislation, the state of South Carolina forbade
appeals in revenue cases ; but the so-called "Force Act" of
Congress reiterated the authority of the United States. After
the Civil War an attempt was made by New York holders
of Louisiana bonds to transfer their holdings to the state of
New York, which then entered suit for collection ; but the
Supreme Court refused to consider the case on the ground
that it was not a bona fide transfer. A very curious attempt
by a state to sue an individual was the case of Mississippi v.
Johnson (1866), which was an application to the Supreme
Court for an injunction to prevent President Johnson from
carrying out the reconstruction statutes in Mississippi. The
court without dissent refused to entertain a suit in matters
" executive and political."
At present the position of the Supreme Court is that it will
not take action to compel a state formally to appear against
its will, except on the suit of another state ; that it will not en-
tertain suits against state officials, to compel them to perform
duties against the will and direction of their state government ;
but that in controversies begun by a state against an individual,
it will take jurisdiction on writ of error, and may decide against
the state. In cases between individuals also, the Supreme
Court freely discusses the statutes of the states, and often lays
down limitations on their powers.
144. Appeals.
The Supreme Court has original jurisdiction in cases involv-
ing foreign representatives or states as parties ; other distinctly
federal cases must be brought in the inferior national courts.
In addition, the Supreme Court " has appellate jurisdiction
both as to law and fact, with such exceptions and under such
§ i4S] Appeals. 3 1 5
regulations as Congress shall make." Furthermore, "this
Constitution and the laws and treaties made in pursuance
thereof shall be the supreme law of the land, and the judges
in every state shall be bound thereby, anything in the con-
stitution or the laws of any state to the contrary notwith-
standing."
To carry out the latter provision. Congress has passed a
series of statutes regulating appeals from inferior national
courts. In 1789 it provided a method, never since altered,
for appeal from state courts : in every case in which a state
court questions the validity of a federal statute, or in which
privileges claimed under the constitution are denied by the
state court, there are three methods by which the suit may
be transferred to a federal court : —
(i) Removal. In most cases involving federal law, there
is concurrent jurisdiction, — that is, the case may be brought
in either state or national courts ; if entered in a state court
and still pending, it may be " removed " to one of the lower
federal courts, and the state court is thereupon bound to desist
from further proceedings.
(2) Appeal. This term strictly means a re-trial of both
law and fact. Cases may be carried by this process from
lower to higher federal courts, but not from state to federal
courts.
(3) Writ of error. This is a revision, by the higher court,
of points of law decided by the lower court : a copy of the
record must be sent up, setting forth the rulings of the lower
court ; if the higher court sees cause, it issues a writ of error,
directing the lower court to alter its decision. Most of the
Supreme Court cases of the United States are now brought up
by this process from the United States courts or from state
courts, and such a proceeding is popularly called an "appeal."
145. Declaring Acts Void.
The federal courts have an immense power over the state
governments, through their right to declare state statutes void.
3i6 Federal Courts. [§145
Although in 1787 scarcely any state was yet committed to the
doctrine that its own courts could hold its own statutes uncon-
stitutional, the federal constitution most distinctly and inten-
tionally gave to the federal courts the power of disallowing
state statutes because not in accordance with the federal con-
stitution, or with laws or treaties made in pursuance thereof
by the United States,
The history of the Federal Convention shows that the
original plan was to give Congress a right to set aside state
legislation, just as it may now reject territorial laws ; that after
long debate the plan was voted down, and that on the same
day was introduced a project which gave to the federal judi-
ciary power to interpret the constitution as the supreme law
of the land. The constitution therefore restored the familiar
system of disallowing colonial laws, even though approved by
the colonial governor; but with the important difference that,
while the crown might disallow colonial statutes for any reason
that seemed good to it, the Supreme Court could set aside
state statutes only in case they were contrary to federal law.
The principle involved is not the right to call up a state
statute and annul it, but simply that a state statute contrary to
the federal constitution or statutes cannot possibly come into
being ; that from the moment of its passage it has no life or
force ; and that therefore the court may leave it out of account
in making up its mind.
The first distinct application of this great power was in the
case of United States w. Judge Peters (1809), in which an act
of the state of Pennsylvania, intended to prevent a decision by
the court, was declared to be of no effect. Since that time
there have been scores of such disallowances, including parts
of state constitutions. For instance, in Cummings v. Missouri
(1866) certain sections of the constitution of 1865 of Missouri,
disfranchising and otherwise, disqualifying persons who had
aided the Confederate States, were disallowed because ex post
facto and of the nature of bills of attainder.
Through sbch federal decisions the boundary-line between
§ 145] Declaring Acts Void. 3 1 7
state and federal powers has been drawn ; for the Supreme?
Court constantly applies the limitations of the constitutioiv
upon states, and defines the border ground of legislation.
For instance, in Gibbons v. Ogden (1824) the Supreme Court
disallowed a New York statute giving a monopoly of steam
navigation on the Hudson, on the ground that the Hudson
was usable for foreign commerce. In 1891 the same court
disallowed a Virginia statute requiring inspection of dressed
meats, for the reason that it was a restriction of interstate
commerce. Tax acts of the state have also been frequently
set aside, the most notable case being McCulloch v. Mary-
land (18 19), when a tax on the United States Bank was
held invalid because the bank was an agency of the federal
government.
Another long series of federal decisions on state acts is
based on the clause that no state shall pass any law impairing
the obligation of contracts, — a clause presumably introduced
in order to prevent the enactment of such statutes as the stay
and tender laws of states after the Revolution, by which the
collection of private debts was delayed or prevented. In the
hands of the Supreme Court the clause was speedily applied
to legislative grants and charters. In the Yazoo land case of
Fletcher v. Peck (18 10), it was held that a grant of land once
made by a Georgia legislature could not be revoked by a sub-
sequent legislature, because it was a contract with the grantee.
In the Darttnouth College Case (181 9), the principle was
widened by holding that a charter given to a college corpora-
tion for the public purpose of educating young men was like-
wise an irrevocable contract. During the last half century the
Supreme Court has somewhat withdrawn from this extreme
ground, by developing the doctrine of poHce power ; but the
general principle holds that, if a state legislature or a city
council under state authority grants a charter or a franchise
without a limit of time or the reserved right to alter, it is a
perpetual grant. Under this principle states and cities have
forever parted with privileges worth millions of dollars.
318 Federal Courts. [§ 145
Disallowance of federal statutes by the federal courts is not
distinctly set forth in the constitution, and it was many years
before it became clear that such a power was necessary for
the maintenance of a federal government. It is a power
unknown to the English courts, and is prohibited by the fed-
eral constitution of Switzerland. In Hayburn's Case (1792)
and United States \. Yale Todd (1794), the justices indicated
their unwillingness to accept non-judicial duties, though pre-
scribed by acts of Congress ; but Marbury v. Madison (1803)
was the first case in which a federal statute was declared out-
right unconstitutional, and that decision was really political
and based on narrow technicalities, and the court ended by
denying its own jurisdiction. The control of the executive
and legislative departments had passed from the Federalist
to the Republican party ; but the Supreme Court was still
Federalist, and the decision was intended to be a defiance of
Jefferson.
It was fifty years before the Supreme Court again declared
an act void, this time in the case of United States v. Ferreira
(1851) ; but that case, like Marbury v. Madison, was a question
of the organization of the judiciary. The Dred Scott Case in
1857, seventy years after the framing of the constitution, de-
clared that the Missouri Compromise of 1820 was not author-
ized by the constitution ; and this is really the first instance
of setting aside a broad statute based on the general powers
of Congress. Even this statute had been repealed by Con-
gress three years before the decision ; and five years later
Congress abolished slavery in the territories, in flat defiance
of the Supreme Court.
It is therefore accurate to say that not till the Civil War
was over did the Supreme Court begin systematically to dis-
allow acts of Congress not relating to the judiciary. Once
started, it went very far. The most remarkable of the new
cases was the disallowance of the legal-tender act, in Hepburn
V. Griswold (1870), by four judges to three; the very next
year that case was reversed by five judges to four. Among
§145] Declaring Acts Void. 319
about fifteen other instances within the last thirty years, the
most notable are the Civil-Rights Cases (1883— 1884), in
which acts for the benefit of negro citizens were disallowed ;
the Trade-Mark Cases (1879), ^^ which the power of the
United States to register trade marks on general commerce
was denied ; and the Income-Tax Case (1895), in which, by a
majority of one, a tax on incomes was held to be unconstitu-
tional, because it was a direct tax which must be apportioned
by population. In 1901, when great pressure was put upon
the court to disallow statutes on the taxation of dependencies,
the acts of Congress were upheld by five judges to four.
While the Supreme Court freely and frequently throws out
local and state statutes, it hesitates to invalidate national
statutes, and has done so in few cases except in the settle-
ment of the confusion arising out of the Civil War. The
Supreme Court acts on the presumption that Congress is
within its powers, unless a case too strong for it to ignore
is made out.
Part VI.
Territorial Functions.
CHAPTER XVIII.
LAND AND LAND-HOLDING.
146. References.
Bibliography: A. B. Hart, Manual (1908), §§ 115, 116, 294; W.
B. Munro, Bibl. of Municipal Govt. (1915), §§ 25-28, 30; Cyclop, of Am.
Govt. (1914), I, 401, 666; H, 244; HI, 92, 97, 107, 116, 154; Channing,
Hart, and Turner, Gtdde (1912), §§ 168, 177, 194, 200, 208, 248, 273;
Municipal Afairs, V, 212-216 (1901). See also references in chs. i
above, xix below.
Private Land-holding: Legal treatises on real property, espe-
cially, E. P. Hopkins, Real Property (1896); C. G. Tiedeman, Am. Law
of Real Property (3d ed., 1906); T. M. Cooley, Constitutional Limita-
tions (7th ed., 1903), ch. xv; U. S. Thirteenth Census (1910), Reports,
V (farms).
National Public Lands: Cyclop, of Am. Govt. (1914), Arts, on
Conservation; Educational Land .Grants; Eminent Domain; Irri-
gation and Irrigated Lands; Land Grants; Land Office of the U. S.;
Public Buildings, Federal, State, and Municipal; Public Lands and Pub-
lic Land Policy; Public Lands, Preemption of; Public Lands, Reserva-
tion of; Public Lands, State; Public Property; Public Works, National,
State, and Municipal; Real Estate, Public Ownership of; P. J. Treat,
National Land System (1910); C. R. Van Hise, Conservation (1910);
F. A. Ogg, National Progress (1918), ch. vi; A. C. Ford, Colonial Prece-
dents (1910); B. A. Hinsdale, Old Northwest (1899), ch. xiv; C. E. Hay,
U. S. Military Reservations, National Cemeteries and Military Parks (1904).
— Sources: Commissioner of Public Lands, Annual Reports: Bureau
of Forestry, Reports and Bulletins; C. A. -Beard, Readings in Am. Govt.
(1909), ch. xx; special periodicals, including National Geographical
Magazine.
Parks and Forest Reserves: P. S. Reinsch, Readings on Am.
Federal Govt. (1909), ch. xii; Cyclop, of Am. Govt. (1914), Art. on Parks
and Boulevards; Niagara Reservation Commission, Annual Reports
(1884-); New York Forest Commission, Annual Reports, especially
1890 (Adirondack forest). See also reports of state and city park com-
320
§ 147] Functions of Government. 321
missioners; reports of superintendents of national parks, in the Annual
Report of the Secretary of the Interior; American Forestry Association,
Bulletins.
Seat or Government: W. F. Willoughby, Territories and De-
pendencies (1905), ch. x; J. B. Varnum, Seat of Govt. (2d ed., 1854);
C. Meriwether, Washington City Government {Pol. Sci. Quar., XII, 407-
419, 1897); W. B. Bryan, National Capital (1914-1916); W. F. Dodd,
Govt, of the D. C. (1909); M. Tremain, Slavery in the D. C. (1892); R. R.
Wilson, Washington, the Capital City (1901). — Sources: Commissioners
of the District of Columbia, Annual Reports.
147. Functions of Government.
In a previous part of this work, attention has been called to
the forms of American government and to the officers who
carry it on ; the remainder will be devoted to a study of the
functions of government. Although in theory the sovereign
power can always do anything within the reach of human
forces, in practice it undertakes only such tasks as cannot be
done by any other agency, or as are manifestly better carried
on by public than by private instrumentality. War, foreign
relations, the punishment of evil-doers, cannot be turned over
to individuals or corporations ; education, protection from
fire, water supply, are better, easier, and more economical as
public services.
The boundary-line between the things which government
does, the things which it permits individuals to do under
specific governmental supervision, and the things which the
individual may do subject only to general restrictions, cannot
be drawn a priori : the socialist will have government under-
take every service that can be performed on a large scale ;
Thomas Jefferson wanted the least possible intervention of
government. In this w6rk we shall seek to discuss only
what American governments actually undertake, and shall
classify public services, for convenience, under five main heads,
— territorial functions, financial functions, external functions,
internal commercial functions, and general welfare. Under
each of these heads will be discussed the division of functions
between nation, states, and local governments,
21
^22 Landholding. L§ 148
148. Private Landholding.
The first element of national, as of individual, life is a spot
of ground on which to stand ; and the first question is, Who
owns the land? (i) In some countries it is held by the
community in general. For instance, much of the Russian
farm land is the common property of the villages ; for a few
years the Pilgrim settlers of Plymouth held lands in common,
but arable " commons " are now almost unknown in the
United States. (2) In the colonial period Americans had a
little experience of another form of ownership, — the feudal.
Under the theory of feudal tenure, the whole land of the
kingdom was the property of the crown, who could grant it to
such of his subjects as he chose, on condition that they render
him military or other service. The feudal tenure was dying
out in England just at the time of colonization, and, though
established in Canada and attempted in Carolina, the colonists
looked upon it with disfavor. (3) Landholding subject to a
quit-rent, or annual payment to state or proprietor, was tried
in the colonial period ; but it led to revolt and was eventually
abandoned. (4) The normal condition of landholding in
America has always been considered to be private ownership
by individuals (or corporations), subject almost wholly to
state law.
The landowner is bound not to allow disorderly or poison-
ous or noisy business on his land, to the disregard of the rights
of other persons. Ownership of land includes the right to
put structures upon it and to dig beneath it, and to use any-
thing found below the surface. The United States might well
have followed the German practice, by which minerals below
the surface are not the property of the landowner but of the
state. In America the owner of the soil owns the coal, iron,
lead, gold, silver, or oil that may be extracted from any point
per];^ndicularly beneath his surface holding.
One element of the value of land is the ease and quickness
with which it can be bought and sold. Ih England the trans-
§ 148] Private Land. 323
fer of land involves such expense that it is hard to buy small
tracts advantageously. The American colonists and their de-
scendants have devised and carried out a system of land
transfer under which all sales, transfers, and mortgages of
lands which are recorded — for very moderate fees — have
legal force. Thus, if a man gives a deed of. sale, and then
a second deed, he may afterwards be punished for fraud ;
but the second deed will hold if it is presented for record at
the public office before the first one. The first thing that a
careful buyer of property does is to have an " abstract of
title " made, — that is, a careful search through the records
to see whether the person selling the land is legally pos-
sessed. In six states, by the so7called Torrens system, the
state (in Massachusetts, the counties) will, if desired, make a
search into a title, and give a certificate which is an absolute
guaranty of title and possession.
Public taxes are a first lien on real estate. If taxes are
long unpaid, the property is advertised for sale, and anybody
who will pay more than the taxes due gets what is called a
"tax-title," which means that, unless within a fixed time the
original owner appears, claims his land, and pays up the back
taxes, the purchaser will presumably own the land. If land is
abandoned and thrown up by its holders, it almost always be-
comes public property through the non-payment of taxes : the
New York state forest in the Adirondacks is in part thus
obtained by the state.
The ease of tracing titles makes it safe to lend on landed
security. A mortgage practically transfers an interest in the
land to another party, and no subsequent sale can shake off
the mortgagor's hold. If the money lent is not repaid, there
is a legal method called " foreclosure," by which the land is
offered for sale at public auction, and the holder of the
mortgage is paid out of the proceeds, or perhaps takes the
land itself. Thousands of millions of dollars are now lent by
the great savings banks and insurance companies in mortgages
on improved property.
324 Landholding. [§ 148
Private holdings in the United States are very numerous.
In 1890, 1,700,000 famiUes owned real estate on which there
were mortgages amounting to over ^2,000,000,000 ; while
about 4,400,000 owned real estate unincumbered, and more
than 6,600,000 families rented real estate : that is, 12,700,000
families owned- or occupied distinct areas of ground in the
country and cities. Outside of the cities there were 5,000,000
families owning real estate, the property of 1,300,000 of these
families being incumbered to the amount of ^1,447,000,000.
While a mortgage may be incurred simply to pay up accumu-
lated debt, in more cases it is given as a part of the purchase
money, and shows thrift ; and in many other cases it registers
simply a divided title, for the mortgage is profitable both to
the borrower and to the lender, provided due effort is made to
pay it off.
Notwithstanding the millions of tenants in America, es-
pecially in the cities, we have not developed the foreign sys-
tem of large estates divided among tenant farmers. In the
United States, 1,600,000 families were returned as occupying
tenant farms in 1890; but tenant farms are commonly owned
by one family and rented to another. Valuable timber or
coal or mineral lands are frequently bought up in great tracts
by a few people, — as the Mesaba iron-ore tracts in Minnesota.
Twenty years ago a Mr. Delamater in Minnesota had one farm
of about 50,000 acres of land; it was .so big that he started
ploughing teams in the morning to draw one straight furrow
across the prairie till noon, and then they turned and
ploughed another homeward. A few wealthy gentlemen have
assembled large estates in the country, as for instance the
Vanderbilt property, " Biltmore," of 100,000 acres, near Ashe-
ville. North Carolina ; but few individuals hold large quanti-
ties of farming land for investment.
The selling value of land varies all the way from one or two
cents an acre for desert land, to $200 a square foot, or at the
rate of about $8,000,000 an acre, for good corners in the heart
of business districts in New York and Chicago. In other
§ 149] Corporate Land. 325
countries, especially in England and Germany, where real
estate is dear and transfer difificult, the possession of land
carries with it social prestige. This is not the case in the
United States ; yet well-to-do people enjoy living a consid-
erable part of the year outside the cities, and hence many
families own two houses, occupying each a part of the year,
149. Corporate and Railroad Landholding.
To the individual the owning of real estate is not an essen-
tial : nineteen twentieths of the famiUes in New York do not
own a square inch of ground. It is otherwise with certain
corporations, which absolutely must have land. The railroads
are among the greatest landowners in the country. First, they
must own their roadbeds, which in the open country are com-
monly from four to six rods wide (66 to loo feet), and
form continuous strips from end to end of the routes, except
when crossing highways. Secondly, they must have ground
for stations and sidetracks, and in great cities must often
have enormously expensive terminals. For instance, about
1880 the Pennsylvania Railroad bought up and destroyed a
strip of houses a block wide and a mile long for an elevated
structure in Philadelphia ; to avoid such immense charges, the
same railroad now proposes to construct tunnels under the
Hudson River and the streets of New York, which will aggre-
gate in cost $30,000,000. In the whole country there are
260,000 miles of railway, owning in the average at least twelve
acres to the mile, or about 3,000,000 acres in all, equivalent
to the whole area of the state of Connecticut. The trolley
railroads commonly use the streets, although some of them
have acquired strips of land for their roads.
Other great owners of real estate are the manufacturing
establishments of every kind, some of which have plants cover-
ing several acres : for instance, the Baldwin Locomotive Works
in Philadelphia occupy four solid city blocks for workshops.
Mining and other corporations have control of enormous
areas of land : for instance, the great railroads serving the
326 Landholding. [§ 149
anthracite coal regions in Pennsylvania all own and operate
coal mines of their own.
In the far West ranching companies have acquired immense
and compact areas of government land for cattle ranges. In
Texas, where the land was never owned by the United States
government, there are some great estates ; and in California,
on land grants made before annexation, there is a stock ranch
of 48,000 acres, a wheat ranch of 150,000 acres, and a vine-
yard of more than 14,000 acres, each of which is managed as
a whole and is not subdivided into tenant farms. Large tracts
of land have also been occupied by irrigation companies,
which get possession of practically valueless land, and then
draw water from the streams to make it fruitful. Logging
companies buy up immense areas of land for timber : the
valuable pine region in Michigan is now almost entirely
deprived of white pine, and much of it is reverting to the
state on tax title.
An increasing and perplexing form of corporate real estate
is the mortmain — "dead-hand" — possessions of religious
and humanitarian bodies, as churches, hospitals, asylums, con-
vents, schools. These are in many states free of tax, cannot
legally be given away, and are rarely sold.
Many of the states prohibit the holding of land by aliens,
with the express purpose of preventing the building up of
large estates managed by people who have no other interest
in the country. With our system of land transfer, these laws
can be made effective against an individual but not against
a corporation, which may own real estate or mortgages, or
may be owned by another corporation which has such mort-
gages ; so that in practice there seems no remedy against the
holding of land by people who do not live on it.
Up to the present time the soundness of country life and of
local institutions has depended upon the large number of in-
dependent farmers living on the ground and looking after their
own interests. Tenant farmers are likely to be shifting, and
corporations are commonly little interested in the education
§ 150] Eminent Domain. 327
of children, the proper development of roads, and the saving
of forests. Most of the great ranches, and of the lumber
and mineral tracts in the country, have been gradually brought
together by purchase from previous small holders ; in many
cases the big company has deliberately driven out the small
holder by fencing in his only road, by stampeding his stock,
or by buying him out. Throughout the country the tendency
at present seems to be to increase the large landholdings and
to diminish the smaller ones ; so that there is less opportunity
for a young man to start out and earn a farm by his hard
labor upon it year after year than there was a quarter of a
century ago,
150. Municipal Real Estate and Eminent Domain.
When a man dies without will and without heirs, his prop-
erty goes, by what is called " escheat," to the crown in
England and to the state in this country. A kindred right
of the state is to take possession of real estate for public pur-
poses, — streets, waterworks, reservoirs, public parks, and sites
for public buildings. This power of " eminent domain "
necessarily includes the right of a state, if the owner will not
accept a price which the government thinks suitable, to submit
to a suit from the owner, and let the court award a suitable
price. The right of eminent domain belongs to the states,
and also to the federal government for federal purposes ; the
states also permit the local governments to exercise the state
authority for their needs.
The great privileges of eminent domain may also be con-
ferred by the state or the federal government upon corpora-
tions created for public purposes, which need real estate in
order to carry out those purposes. Railroads habitually use
it for securing a right of way and ground for stations. The
majority of owners make private terms with the railroad com-
pany, which insists on its legal privilege only where its offer is
refused.
The greatest real-estate owners in the country, next to the
328 Landholding. [§ 150
United States government, are the five hundred and odd
cities, (i) They own the streets, or rather control the land
so long as used for streets. In many states, streets and roads
which cease to be public highways revert to the heirs of the
original grantors. (2) Many cities own waterworks with large
reservoirs, which perhaps lie outside the corporate limits of
the city. (3) The cities own the parks, which are every
year becoming more and more important. New York about
i860 created its beautiful Central Park, an example which
was very slowly followed by other great cities. Until after
the Civil War not a single great city on sea, lake, or river
had appropriated any considerable part of the water front for
a park ; now there are such beautiful water parks as Lincoln
and Jackson Parks in Chicago, Riverside Drive in New York,
the Nantasket and Crescent Beach reservations for Boston,
Gordon Park in Cleveland, the Battery in Charleston, and
Belle Isle in the Detroit River.
The trotting horse, the bicycle, and the automobile com-
bine to demand good roadways in cities ; and hence have
grown up systems of beautiful boulevards, broad, winding, and
well-surfaced, reaching from park to park and often from city
to city. Many cities, particularly New York and Boston,
have cleared breathing-spaces in the heart of the slums, and
have constructed pleasure piers and bathing beaches for
public use. Outside the cities, village improvement societies
have in many places kept the streets clean, planted shade
trees, and laid out grass plots. People have at last come to
understand that open-air spaces in the cities mean not only
greater happiness to those who have the least opportunity for
enjoyment, but also the lowering of the death rate and even
of the criminal rate.
In a few American cities the community owns some or all
of the docks, especially in New York, where this public prop-
erty produces a large income. Had a little more pains been
taken as the cities grew up, the water fronts, so valuable alike
for recreation and for commerce, might have been preserved
§ isO Municipal. 329
in nearly their whole extent under the ownership, and to the
profit, of the municipalities.
Every city owns many public buildings, — a city hall,
schoolhoases (often to the value of many millions of dollars),
engine-houses, police stations, workhouses, an almshouse,
stables, paving yards, ash dumps, large institutions for the
care of the defective and delinquent, and so on. Some
American cities have municipal hospitals, and most of them
public library buildings. Such holdings of real estate, pro-
vided by the sacrifices of past generations, are transferred to
us as a trust.
151. State Real Estate.
The states are also large holders of real property for their
own purposes. Many of them, between 1830 and 1870,
constructed lines of canal or railroad, a few of which are still
state property ; and strips of real estate in a few states have
recently been taken for commercial or irrigating canals.
A few states own considerable forests, especially New York,
which has appropriated to this purpose tracts in the Adiron-
dacks forfeited for non-payment of taxes, and has bought
adjacent land outright or got it in exchange for tax lands.
These forests are administered by state officials, who purpose
planting the vacant spaces with trees, and managing them for
the public profit by cutting a small part each year, as is done
in the great forests of Europe. The forest reservations of
the state of New York amount to about 800,000 acres, or
1,200 square miles. Several states have forest commissions.
States occasionally buy for public reservations historic sites,
like tlie Rufus Putnam house at Rutland, Massachusetts, or
Fort Washington on the island of New York, or Valley Forge
in Pennsylvania. The state of New York has even been allowed
to purchase the beautiful palisades on the New Jersey side of
the Hudson. Several mountains in New England, especially
Mount Wachusett and Mount Greylock, have been purchased
for state reservations, and the system is likely to spread
330 Landholding. [§ 151
through all the states which have natural beauties. In Mas-
sachusetts a state park board has taken large areas of wood-
land and roadway in the neighborhood of Boston, and has
assessed the cost on the cities which get an advantage. The
most notable state park is at Niagara Falls, purchased at
great expense by New York, and now maintained as one of
the most superb places of resort in the world. The head
waters of the Mississippi have been included by the state of
Minnesota in Itasca Park. In California the Yosemite Val-
ley and the Mariposa Big Trees are state reservations. The
whole of the St. Lawrence River and islands within the bound-
aries of New York may become a park under the control of
the state.
State reservations are simply a setting aside for public use
of mountains, valleys, and other places of beauty which would
either be fenced in by greedy private owners, or would be
ruined by the cutting or defacing of the trees. At present a
very little money will go a long way toward securing such points
of beauty, especially tracts of woodland lying near great cities.
The Middlesex Fells reservation, in sight of Boston, is a region
about five miles long and three miles wide, with beautiful
lakes and forests, and was bought for a few hundred thousand
dollars because it had never been settled.
As to forests, the argument is not only one of beauty but
of profit. In the New England and Great Lake states, forests
and mountains are a source of revenue because they attract
thousands of summer residents. Moreover, the ruthless de-
struction of forests is thought to affect the flow of streams.
The preservation of lumber supplies and of fuel is a duty
which the present generation owes to the next one. A forest
properly cared for may have about one fiftieth of its surface
cut every year without injuring it, and that is the system used
in the great European forests ; indeed, in Germany the owner
of a private forest is not allowed to cut a tree without the
sanction of the state inspector.
The states are all holders of real estate for public buildings.
§151] State. 331
Every state has a capitol, most of them small editions of the
Capitol at Washington, Notable among buildings of a more
distinctive type are the beautiful Connecticut state house at
Hartford, the new Rhode Island state house at Providence,
the state capitol at Albany (which cost ;^i 8,000,000), the new
capitol of Minnesota at St. Paul, and the large building at
Austin, Texas. A few of the states, among them New York,
Virginia, North Carolina, and Kansas, have what every state
ought to possess, — a governor's residence near the capitol.
An instinctive dread of the over-influence of large cities has
resulted in placing nearly every state capitol away from the
state metropolis : the capitol of New York was in 1797 moved
to Albany, the capitol of Pennsylvania to Harrisburg in 181 2 ;
of the thirty-eight cities in the Union having a population of
over 100,000, Boston, Providence, Indianapolis, St. Paul, and
Columbus are the only capitals. In many of the states the
capital has been fixed as near the geographic centre as
possible, upon the theory that it is convenient to the peo-
ple, although of course the Hues of railway communication
always lead most directly to the largest cities. One of the
states in the Union, Connecticut, for many years had two
capitals, Hartford and New Haven, but it has finally settled
upon Hartford ; and in the small state of Rhode Island there
are no less than four so-called "state houses," although Provi-
dence has now become the only capital.
The struggle over the seat of government goes down into
the counties, especially in new Western communities ; for
the county town is certain to have public buildings and is
likely to attract population. Hence fierce contests at elections
held to decide on the county seat : in one case in Kansas
the residents of the defeated town forthwith put their houses
on wheels and hauled them across the prairie to the success-
ful site.
It is very common to distribute the state buildings. The
governor and the legislature must be at the seat of govern-
ment because they act together; but the penitentiary, state
332 Landholding. [§ 152
lunatic asylums, state normal schools, state university (which
ought always to be either in the largest city or the capital
city), are scattered throughout the state, upon the ground
that it is not fair to give one place the benefit of these con-
veniences. Gifts of sites for such buildings are often made
by local governments or individuals. Millions of dollars have
been spent on land and buildings for state institutions of every
kind : for instance, the state of Missouri has 4 insane asylums,
I state prison, 4 normal schools, i university, 3 institutions for
the deaf, blind, and feeble-minded, 2 state reform schools, and
tnany other buildings.
152. National Real Estate.
The greatest landowner in the whole country is the United
States of America, through the general government at Wash-
ington ; for it has title to about one third of the whole area
of the United States in North America, chiefly in the form of
unsold public lands. The United States is also the largest
owner of improved real estate, having about 2,000 separate
pieces of property.
Outside the district of Columbia, the United States has
1 74 military posts, most of them only a few hundred acres in
extent; such are the Jefferson Barracks near St. Louis, Fort
Snelling near St. Paul, and Governor's Island in New York
Harbor. There are 1 6 arsenals, armories, and ordnance depots,
the principal one at Rock Island. There are 9 navy yards at
various points on the coast, — as League Island on the Dela-
ware below Philadelphia, and Mare Island in the harbor of
San Francisco. There are 1,250 lighthouses strung along the
coast of the ocean and lakes, and along some of the rivers.
There are about 400 public buildings used for post-offices,
custom-houses, and for the federal courts. Federal property
is always solidly built and kept in good repair.
Much of the United States was originally wooded, and in
the Rocky Mountains and the Sierra Nevadas there are still
immense areas of uncut timber; recently also large areas of
CALIFORNIA
STATE CAPITOLS
§ IS3] National.
333
public land have been set aside for national forest reserves,
now amounting to more than 70,000 square miles of territory,
an area greater than all the New England states together.
Among the most famous of these reserves are the Arkansas
Hot Springs in the Ozark Mountains ; the Yellowstone Park,
with superb spouting geysers and beautiful canons ; the upper
Yosemite reservation ; the General Grant and Sequoia national
parks of Big Trees in California ; all of which are kept up as
national parks, policed under national authority.
Most of these parks He within the boundaries of states, but
have never been turned over to their control. There is no
difficulty in maintaining these reservations so long as the log-
cutters find plenty of private land ; but as soon as lumber
grows scarcer and dearer, great pressure is put on Congress to
authorize the cutting of timber on government reservations.
153. The National Capital.
In the history of the world, the seat of government has
usually been the metropolis of the country : Paris, London,
Berlin, Vienna, are the largest cities in France, England,
Germany, and Austro-Hungary. The colonial governments
were also situated in the principal colonial towns : nobody
dreamed of disputing the right of Charleston, Williamsburg,
Philadelphia, New York, or Boston. The Continental Con-
gress sat in Philadelphia, then the leading city of the English
colonies ; but since on two occasions it was assailed by muti-
nous troops, and the state authorities did not give it proper
protection, Congress was convinced that the seat of govern-
ment ought to be removed from the centres of population.
The federal constitution gave Congress authority to select a
site for the national capital (not to be more than ten miles
square), and to exercise exclusive jurisdiction over such dis-
trict. The capital would still have been fixed in or near
Philadelphia had not the two Pennsylvania senators quarrelled ;
and in 1 790, by a compromise, the Northern members con-
sented that the capital be fixed on the Potomac, provided the
334 Landholding. [§ ^53
state debts be assumed by the federal government. To
President Washington Congress assigned the duty of selecting
the precise site, and he chose a tract on both sides of the
Potomac, including the village of Georgetown. A French en-
gineer, Major L'Enfant, laid out the city ; and, remembering
the barricades of Paris in the French Rebellion, he not only
divided it into squares like Philadelphia, but added great
sweeping diagonal avenues, through which he supposed artillery
might sometime be played. Washington is the most beautiful
city in America, a favorite place of residence for people who
can live where they like. It is the best-paved city in the
Union, has the most beautiful public squares, and one of the
most convenient systems of traction cars.
Except the churches and hotels and some private residences,
almost all the notable buildings in Washington belong to the
United States government. At one end of Pennsylvania Ave-
nue is the superb Capitol building, the central part designed
by the great architect Charles Bulfinch in 1818, and greatly
enlarged about 1859; the central dome was an afterthought,
but it is one of the most superb soaring structures ever raised
by the hand of man. Near the Capitol is the Library of Con-
gress, really a national library, erected at a cost of ^7,000,000,
and one of the world's beautiful palaces. One and a half
miles from the Capitol northwestward is the White House, the
ofificial residence of the president.
The most majestic ornament of the city of Washington is
the Washington Monument, an obelisk-like shaft of white
stone, 555 feet high, and beautiful beyond description. Scat-
tered through the city are numerous public buildings : the
enormous Pension Ofifice ; the big and unsuitable Treasury
Department ; the great building of the State, War, and Navy
Departments ; the new city Post-Office building ; the Patent
Office ; the National Museum ; and the Smithsonian Institu-
tion. A plan is now on foot for laying out a superb esplanade
from the Capitol to the Washington Monument, to be embel-
lished with new public buildings arranged with reference to
§ 154] National Capital. 33^
each other ; and in a few years Washington will become the
most beautiful official city in the world. The United States
has already expended more than ^100,000,000 on public
buildings within the District, of which nearly $40,000,000
went into the Capitol. Although Washington is so near the
coast that it was taken in 18 14, and was in some danger of
capture from the sea in 1862, there is not the slightest likeli-
hood of the removal of the capital westward.
154. The Public Lands.
Ever since the American Revolution the disposition of the
public lands has been a serious political question. All of the
present area of the United States, except the Columbia valley
and the Pacific islands, has at some time been held by some
European monarchy, and in most cases has been treated as
royal private property for the time being. The English crown
quickly transferred its right by wholesale grants to colonizing
companies and royal favorites: for example, in 1632 the
Baltimore family was made sole proprietor of Maryland, and
the land was by it sold or given to private holders. At the
time of the Revolution, most of the land east of the AUe-
ghanies had passed out of the hands of the crown : a part of
it was held by separate colonies ; a part was private property ;
a part was subject to small annual quit-rents.
When at the end of the Revolution the western boundary
was fixed at the Mississippi River, seven of the states to the
eastward laid claim to strips of territory in this previously
ungranted region ; and a twenty-year dispute ended with the
cession of a large part of its claims by every one of the seven
claimant states. Before a single one of these cessions had
been made. Congress, by a resolution of October 10, 1780,
laid down the public-land policy of the following century, —
that the lands " shall be disposed of for the common benefit
of the United States." This vote was a pledge that the lands
should not be held as a continuous public domain, and that the
proceeds of sales should be used to extinguish the public debt.
336 Landholding. [§ 154
This pledge has been kept so far as possible, not only for
the lands east of the Mississippi River, but for the successive
additions of public territory. New areas of land, except what
had already been granted to individuals, were added by acces-
sions of territory, — Louisiana in 1803, Oregon from 1805 to
1846, West Florida in 1810-14, East Florida in 1819, New
Mexico and California in 1846-48, the Gadsden Purchase in
1853, Alaska in 1867. Texas, when annexed in 1845, kept
all its public lands; in the annexations of Hawaii (1898) and
the Philippines and other Pacific isles (1898), most of the
land is private property.
Of the 3,500,000 square miles comprised within the con-
tinental United States, 2,825,000 square miles have at one
time or another been the property of the United States, and
1,675,000 square miles are still undisposed of. This enor-
mous area, nearly one half of the Union, lies almost entirely
in the Western states and Alaska, and is made up of desert,
mountain, and arid regions ; very little land available for
ordinary farming is still owned by the United States outside of
Alaska.
Under Jefferson's influence. Congress in 1785 adopted the
, intelligent and useful method of rectangular surveys, the prin-
ciple of which is to lay out east and west lines a mile apart,
and to cross them by north and south lines a mile apart ; the
square mile, or 640 acres, is called a section, and is divided
into quarter sections of 160 acres. 6 miles in each direction
include a congressional township of 36 square miles. Such
townships are numbered as shown in the illustrative diagram ;
and in selling land the government deeds give title to, say,
"the north-east quarter, section 22, township 5 south and
range 13 east of the first principal meridian." All the
surveys are recorded in official land offices ; and claims for
the grant or purchase of lands must be entered on those
records until entirely out of the hands of the government,
when, like any other private holdings, they must be registered
in the local county record offices.
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RECTANGULAR SURVEY OF PUBLIC LANDS.
§ 154] Public Lands. 337
The three main objections to the rectangular system are
as follows : — (i) The roads are laid out along the section
lines, and hence commonly do not follow the valleys and
streams, but go up hill and down dale. (2) The boundaries
do not refer to natural objects, and the stakes are very easily
displaced, a circumstance which leads to expensive litigation.
(3). The government has never made a sufficient distinction
between ordinary farming lands and timber, mineral, and
grazing lands. Forested, stone, and coal lands are now listed
to be sold for special high prices ; and mining claims are en-
tered and recorded as a separate system.
The rest of the former public land, about 1,170,000 square
miles, or 748,000,000 acres, has been disposed of by the
United States by one or the other of four methods, — sale,
grants to individuals, grants to states for state purposes, and
grants for internal improvements.
(i) About one fourth of the land of the United States has
been disposed of by direct sales. From 1785 to 1800 large
quantities were sold to colonizing companies who came to the
seat of government. Since the small purchaser found it
almost impossible to get what he wanted, in 1800 a new
system was adopted of selling lands on credit through land
offices out on the frontier. This led to the buying of more
land than people could pay for, and about 20,000,000 acres
were taken back by the government. In 1820, therefore, a
third system was adopted, — that of selling land for cash in
any quantity to any comer, at a minimum price of ^1.25 per
acre. This led in the two years, 1835-36, to the sale of
36,000,000 acres, chiefly to speculators, who disorganized the
finances of the country and brought on a financial panic.
From 1 84 1 to 1891 most land sales were made under the pre-
emption system, by which any head of a family might take
up one tract of farm land of 160 acres by living on it for six
months and paying ^200. The available lands were so
diminished that this privilege was withdrawn in 1891. The
receipts for the sale of public land now foot up to about
338 Landholding. [§ 154
;^3,ooo,ooo a year, chiefly from lumber and mineral land,
desert land, or coal land.
Public lands valuable for timber or building stone, not
being mineral in character nor fit for agriculture, may, if
uninhabited and unimproved, be bought at $2.50 per acre in
lots of not more than 160 acres by any one person or asso-
ciation. The land must be for the exclusive use or benefit
of the purchaser and not for speculation. All public lands
valuable for minerals, coal, salt, or petroleum are reserved
for sale. Any citizen, or alien who has declared his inten-
tion of becoming a citizen, may prospect for minerals on the
public domain and locate not more than 1,500 feet along a
vein of ore and from 25 to 300 feet on either side of it on
the surface. The end lines of his claim must be parallel ; but
he has the right to follow the dip of the ledge to any depth
between these lines, although this may take him beyond the
vertical plane of his side line. To retain his claim the locater
must spend at least ;?ioo worth of labor upon it each year:
if he fails to do so the property may be relocated by others.
When he has spent ^500 worth of labor, he can obtain a patent
from the government, if there is no adverse claim, by paying
$5 per acre for the land located, and can purchase at the
same price a mill site of not more than 5 acres. The patent
gives him ownership and freedom from relocation. The
process of entering and patenting a placer, saline, or petro-
leum claim is the same as for a quartz claim, but no location
by any association shall exceed 160 acres nor more than 20
acres for each individual claimant. The patents for these
lands cost $2.50 per acre. Coal lands are sold to the extent
of 160 acres to any individual and not more than 320 acres
to an association, but if not less than 4 persons have expended
$5,000 in improving the land they may enter 640 acres. If
the land is more than 15 miles from a completed railroad the
price is $10 per acre, otherwise it is $20 per acre.
(2) Immediately after the Revolution began the practice of
giving away lands to individuals. The Revolutionary troops
§ 154] Public Lands. 339
received about 10,000,000 acres; the soldiers of the Mexican
War about 60,000,000 acres. After the Civil War there was
no special military grant, because in 1862, by the Homestead
Act, Congress had established the principle of giving away a
quarter section of land to any head of a family, native or im-
migrant, after he had lived five years upon it and had paid a
fee of about $40. About 200,000,000 acres have thus been
given away, for the distinct purpose of stimulating the growth
of Western states. In addition, by the Tree Claim Act, from
1873 to 1 89 1 Congress gave 160, 80, or 40, acres of land to
anybody who would agree to keep a certain number of trees
growing on it for five years ; this system led to frauds, and
after 9,000,000 acres of tree claims had been allowed, it was
given up. The homestead system has of late been much
abused by cattle companies, who advertise for people to
homestead in order to sell out to them.
(3) Of the original thirteen states, all except Rhode
Island, New Jersey, Delaware, Maryland, and South Carolina
had large tracts of wild land at the organization of the federal
government ; and they sold those lands for their own pur-
poses. As new states were admitted, each, beginning with
Ohio in 1802, received from the government a gift of public
land within its borders. For school lands was reserved one
section in each township (a thirty-sixth of the public do-
main) ; and, in states admitted since 1850, two sections in
each township; the total is 70,000,000 acres. In 1862,
land warrants for 10,000,000 acres, which might be located
anywhere, were given to the states to found agricultural col-
leges. The six new states admitted into the Union since
1890 got 28,000,000 acres for various purposes, and lands are
still being transferred to the states from year to year.
(4) By grants for internal improvements, first to the states
and later to railroad corporations, over 140,000,000 acres have
been given away. Many of the canals in states west of Penn-
sylvania had government land grants, followed in 1850 by the
first railroad land grant to the Illinois Central. Most of the
340 Landholding. [§ 154
great trunk lines radiating west from Chicago reserved such
grants. In 1862 began the great land grants to the four main
lines of Pacific railroads, — the Union and Central Pacific,
the Northern Pacific, the Southern Pacific, and the Atlantic
and Pacific. Great quantities came back to the government,
because the projected roads were not built within the stipulated
time ; but the net gifts are over 100,000,000 acres.
By this consistent policy of the federal government to divest
itself of its public lands as soon as possible, the principle of
private ownership of land has been formally fixed ; even the
lands given to the states and to railroads have in most cases
been speedily sold to individuals or corporations. Within the
limits of the present city of Chicago there were originally 9
square miles of land reserved for school purposes, which, had
it been retained and rented, would have splendidly supported
the whole system of schools without a dollar of taxes. Large
amounts of land are still held by the great railroads, although
it is their policy to sell them, so as to build up traffic over
their lines.
The operations of the Land Office in the fiscal year ending
June 30, 1 90 1, show the following data : —
Area disposed of, 15,600,000 acres; of which 1,300,000
acres were cash sales; 14,200,000 acres, miscellaneous entries
and selections; and 100,000 acres, Indian lands. The cash
receipts were ^5,000,000, of which ^3,600,000 was for land,
$1,300,000 for fees and commissions. The expenses were
$800,000.
The money return to the United States is less than might
be expected ; it foots up to $345,000,000 ; but the government
has paid for various land cessions over $50,000,000, and for
surveying and administering probably $200,000,000 more. It
is unfortunate that the great value of the forests was not
earlier realized, so that the white pines of Michigan, Wisconsin,
and Minnesota, and the splendid red-woods of the Pacific
coast, many of them over 250 feet high, might have been
saved for commercial foresting. Mineral lands, especially gold
§ 154] Public Lands. 341
and silver, are not subject to entry under the ordinary system
if their valuable contents are known; but many thousands of
acres have been sold before their quality could be ascertained.
A still more serious misfortune is that the government did not
earlier realize that grazing lands cannot all be sold in tracts of
160 acres, since they are worthless without water: the people
who take up the sections along the rivers really control the
country back, and keep without rent millions of acres of
public land, because nobody else can profitably use it. The
government did not begin early enough to recognize that some
lands could be made valuable by irrigation.
The process of distributing the available land is now almost
completed : little desirable farming land remains in the hands
of the government ; and the most valuable remaining timbered
areas have now been alienated, or are held back as national for-
ests. The United States retains desert, rock, and mountains ;
but, except for its parks and reservations, within a few years
the government will not own, outside of Alaska, any land that
individuals will want to live on or to exploit.
CHAPTER XIX.
BOUNDARIES AND ANNEXATIONS.
155. References.
Bibliography: A. B. Hart, Manual (1908), §§ 65, 66, 115, 116, 167,
171; Cyclop, of Am. Govt. (1914), I, 47, i59, 166; II, 378; Channing,
Hart, and Turner, Guide (1912), §§ 30-35, 97, 157, 160, 167, 187, 196,
217-219, 224, 244, 263, 265, 267. See also references in ch. xviii above.
Boundaries: J. B. Moore, Digest (1906), I, §§ 125-162; H. Gannett,
Boundaries of the U. S. and of the Several States (3d. ed., U. S. Geological
Survey, Bulletins, No. 226, 1904); Cyclop, of Am. Govt. (1914), Arts,
on Boundaries of the U. S., Exterior; Boundaries of the U. S., Interior;
states by name; U. S. Twelfth Census, Bulletins, No. 74 (with map);
maps in American Nation, passim; A. B. Hart, Epoch Maps (rev. ed.,
1910); A. B. Hart, Wall Maps on Am. Hist. (1918).
Annexations: Cyclop, of Am. Govt. (1914), Arts, on Alaska,
Annexation of; Alaska, Boundary Controversy; Annexations to the
U. S.; California and New Mexico, Annexation of; Louisiana Annex-
ation; Philippine Annexation; W. W. Willoughby, Constitutional Law
(1910), I, chs. xxii, xxiii, xxviii; B. A. Hinsdale, Old Northwest (1899),
ch. x; T. Roosevelt, Winning of the West (1889-1896), II, ch. xiii;
IV, ch. vi; A. B. Hart, Contemporaries (1897-1901), III, §§ 111-115,
143, 149; IV, §§ II, 14, 46, 174, 185; Louisiana and West Fla., in H.
Adams, U. S. (1889-1891), II, chs. ii-v; V, 305-315; VI, 236, 237;
E. Channing, Jeffersonian System (1906), chs. iv-vi; West Fla. and East
Fla., in J. B. McMaster, U.S. (1883-1913), III, 31-34, 370-37S, 536-
540; IV, 476-483; H. B. Fuller, Purchase of Florida (1906); Oregon, in
H. H. Bancroft, Northwest Coast (1884), II, chs. xv-xvii; Texas in J.
H. Smith, Annexation of Texas (191 1); California, New Mexico, and
Gadsden Pui'chase, in J. F. Rhodes, U. S. (1892-1906), I, 87, 92, 93;
II, 7; G. P. Garrison, Westward Extension (1906), chs. viii, x, xv; Alaska,
in F. Bancroft, William H. Seward (1900), II, ch, xlii; E. P. Oberholtzer,
U. S. (1917-), I, 537-556; Hawaii, Samoa, and the Philippines, in J. H.
Latane, America as a World Power (1907), chs. iv, viii; J. M. Callahan,
Am. Relations in the Pacific (1901), chs. viii-x. For Porto Rico and the
Philippines, see references in ch. xx below.
156. History of the National Area.
The extension of the governmental area is a territorial
function which falls exclusively upon the federal government.
From the beginning the United States has been an expan-
342
§ 156] National Area. 343
sionist nation, and its area has been increased from 828,000
square miles in 1789 to 3,692,000 square miles in 1902. The
area of the Union on July 4, 1776, was that of the thirteen
colonies which were united in the Revolutionary War; but
their boundaries were not quite the same as of those states
at the present day ; part of the present state of Georgia was
then in South Carolina, and Western New York had not yet
come into the jurisdiction of New York ; Maine was a part
of Massachusetts, West Virginia a part of Virginia ; the peo-
ple of Vermont were about to throw off their allegiance to New
York; and in what are now East Kentucky and Tennessee
there were settlements springing from Virginia and North
Carolina.
In the course of the Revolutionary War, the Six Nations in
Western New York were crushed by continental troops, and
George Rogers Clark conquered most of the country between
the Ohio River and Lake Michigan. When the treaty of peace
came to be made in 1782, the boundary agreed to by the
English commissioners included not only the thirteen states,
but Vermont, the whole of the Northwest Territory as far as
the head of Lake Superior, and also the territory south of the
Ohio River as far as the 31st parallel. Thus, partly as a re-
sult of hard fighting and partly by skilful diplomacy, the
United States more than doubled its area by the war.
The next great territorial accession was Louisiana, which
in 1803 was bought for about $15,000,000 and included the
whole western valley of the Mississippi and its tributaries, to
their remotest heads in the Rocky Mountains. The bounda-
ries of Louisiana on the south were ill-defined and hard to
establish ; eventually under the cession we yielded all claims
to Texas beyond the River Sabine.
The next annexation was that of Oregon. The relations of
the United States with that region began with the discovery
of the mouth of a river, in 1792, by Captain Gray in the
ship Columbia, and he named the river after his ship; but
the act which many years later was seen to have settled the
344 Boundaries and Annexations. [§ 156
question was the overland expedition of Lewis and Clark,
sent out by Jefferson, which reached the Columbia in 1805.
Our claim to Oregon was for a time contested by Spain,
Russia, and England; and was not settled till 1846, when
the present northwestern boundary of the United States was
agreed on.
The next annexation was really that of West Florida, which
from 1810 to 1814 was occupied in successive sections by
United States troops under the belief that it was a part of
Louisiana. Recent investigations have shown that the French
did not intend to include it in the cession. Next came the
annexation of East Florida, by the treaty of 1819 with Spain;
the United States paid $5,000,000, and thus acquired the
whole coast line from Maine to the Sabine River.
Next came the annexation of Texas in 1845. We now
know that a part of the present state of Texas was claimed
by France, and that we were really entitled to take possession
of it instead of West Florida; but in 181 9 it was agreed that
Texas, then a part of Mexico, should remain Spanish. Three
years later the revolt of Mexico included Texas; in 1835
Texas revolted and set up a separate government ; and in
1845 the republic of Texas was incorporated into the United
States.
The next year war broke out with Mexico. In 1848 that
country ceded California, and what was then called New
Mexico, including, the present state of Utah. The south-
western boundary was found difficult to run, and in 1853 the
so-called "Gadsden Purchase " gave an additional strip in what
is now Arizona. In 1867, after the Civil War, the United
States obtained from Russia what was then called Russian
America, and is now known as Alaska.
In 1867 to 187 1 treaties were negotiated for the cession of
the Danish West Indies and San Domingo, but the Senate
refused to approve them. Then for nearly thirty years there
was a halt in annexation; but in 1898 the Hawaiian Islands
were annexed, and in the same year Porto Rico, the Philippine
§ 157] Processes of Annexation. 345
Islands, and Guam were ceded by Spain as the result of the
Spanish War. In 1899 the United States acquired sole title
to the island of Tutuila. Three little Pacific islands — Mid-
way, Baker, and Wake Islands — have also been officially
claimed by the United States since 1898; in addition, a few
guano islands off South America and in the Gulf of Mexico,
are temporarily a part of the United States territory.
157. Processes of Annexation.
This territory has been annexed by five methods.
(i) The original territory of the thirteen revolting states
became theirs by the force of their own good right arms in
the Revolutionary War : it was not a conquest, but a main-
tenance of a previous occupation.
(2) One large area and three small islands have come
to the United States through the right of prime discovery
of territory not previously held by civilized nations. The
Columbia River was discovered in 1792 ; the first settlement,
the trading post of Astoria, was established on the south side
of the river in 181 1 ; the first permanent settlers went there
about 1832. The island of Tutuila belongs to us as one of
three nations which were the first to exercise sovereignty over
the Samoan group ; Baker, Wake, and Midway are ours be-
cause visited by American vessels and claimed by us before
any other civilized power.
(3) Several annexations have been brought about by peace-
ful treaties of purchase: Louisiana in 1803, East Florida in
1819, the Gadsden Purchase in 1853, and Alaska in 1867.
In three of these cases the government which owned territory
was glad to transfer it ; in the other case, East Florida, Spain
thought it better to part with it peacefully than to lose it by
conquest.
(4) Three annexations have been made by military con-
quest: West Florida in 1810 to 1814; New Mexico and
California in 1848; Porto Rico and the Phihppines, with
the island of Guam in 1898. In all three of these conquests
34^ Boundaries and Annexations. [§ 158
the government of the United States felt qualms, and in each
case paid a douceur to the other party : by the treaty of 18 19,
;^5, 000,000 was paid nominally for East Florida, but from the
Spanish point of view also for West Florida; $15,000,000 was
paid to Mexico in 1848, and ^20,000,000 to Spain with refer-
ence to the Philippines in 1898.
(5) In two instances territory has been annexed by the
voluntary incorporation of independent states: Texas in 1845
and the Hawaiian Islands in 1898 were each annexed by a
joint resolution, which is really nothing but a statute requiring
a majority in both houses and the approval of the president.
Texas was admitted as a state from the moment of annexa-
tion ; the Hawaiian Islands were later created a territory.
158. Exterior Land and Water Boundaries.
The process of territorial growth has involved the United
States in many serious boundary controversies. The original
treaty of 1782 designated, on the northeast, a line from the
sea round to the head waters of the Connecticut ; but the ne-
gotiators had before them an erroneous map, and the bound-
ary could never be located on the face of the country. Not
until after long controversy was an agreement made, in 1842,
to divide the disputed territory, and a sum of money was
paid to the state of Maine for the extinction of part of its
claims. Of late the claim has been put forth that there is no
constitutional authority for ceding any part of the United
States to any other power. Besides this precedent, and the
transfer of an island in the Niagara River, the United States
doubtless possesses under the treaty power the usual sovereign
right of ceding territory.
The boundary through the St. Lawrence and its upper
tributaries required many tedious surveys : in the rivers, the
deepest channel was commonly the dividing line ; in the
Great Lakes, the line lies on the bottom of each lake about
midway of its breadth.
The western line of 1782 was also impossible to locate, for
§ 158] Exterior Boundaries. 347
it was to run west from the Lake of the Woods to the head of
the Mississippi, no part of which reaches as far north as the
Lake of the Woods. This difficulty was adjusted in 1818 by
a treaty with Great Britain, making the 49th parallel the divi-
sion line as far as the Stony Mountains.
The Oregon boundary was a subject of controversy froni
1792 to 1872, the term Oregon originally applying to the
whole country between the Rocky Mountains and the Pacific,
from California to Russian America. In 18 19 Spain gave up
any claim north of the 4 2d parallel; in 1824-5 Russia gave
up any claim south of 54° 40' ; this left Great Britain and the
United States face to face, and in 1846 they agreed to con-
tinue the 49th parallel to the Pacific as a dividing line. A
new controversy arose as to the water boundary out through
the Straits of St. Juan de Fuca, and was settled by the arbitra-
tion of the Emperor of Germany, in 187 1, in favor of the
American contention.
The southern boundary was for many years subject to dis-
pute. The Hne of the 31st parallel set forth in the treaty of
1782, though made without the consent of Spain, was in 1795
acknowledged by that power. Then from 1803 to 181 9
raged the controversy over West Florida and Texas; in 181 9
we gave up any contention west of the Sabine River and
south of the Red River. Exactly what was the southwestern
boundary of Texas when annexed in 1845 ^^^ never been as-
certained : Texas claimed the Rio Grande " from its mouth to
its source " ; but this included New Mexico with the ancient
Santa F^, which had never been a part of Texas. By the
treaty of 1848 the Rio Grande was made the Mexican bound-
ary up to a certain point, and thence an irregular line to the
Pacific. The line was disputed and set aside by the Gadsden
treaty of 1853. At present all the boundaries from Passama-
quoddy Bay to Puget Sound, and from the Rio Grande River
to the Pacific, have been sur\'eyed and marked by stone monu-
ments. Part of the boundary between Alaska and British
Columbia is still in dispute.
34^ Boundaries and Annexations. [§ 159
The eastern and western boundaries of the United States
are the sea line. That does not mean the water's edge either
at high or at low tide, but a line three miles out from the
shore at low tide ; furthermore, waters like Long Island Sound,
Delaware and Chesapeake Bays, and the estuary of the James
River are within the boundary of the United States, though
their mouths are more than six miles wide. The sea bound-
ary is therefore a line following the sinuosities of the seacoast
three miles out, but crossing from cape to cape where there is
a great land-locked water.
159. Territorial and State Boundaries.
The internal boundaries between the states and territories
have been created by one or the other of three agencies —
royal grants, state agreements, and acts of Congress.
(i) The boundaries of thirteen of the present states, from
Maine to Georgia, are referable to grants made by the King
of England in his capacity as feudal owner of the soil of all
his kingdom — a right which could be practically exercised
in the new world, with its wealth of soil unoccupied by
Europeans. The royal grants were so vague and conflicting
that many controversies arose in colonial times ; some of
which were settled out of hand by royal orders, some by
intercolonial agreements, and some by decisions of the Privy
Council in formal suits on appeal. The kings did not know
the geography of the country, and gave impossible boundaries,
as that to Virginia in 1609 "up into the Land throughout
from Sea to Sea, West and Northwest." Successive strips of
territory were granted on different terms of gift, sale, or trans-
fer to a proprietor or company ; and the only way to straighten
them out was by consolidation : thus, Massachusetts absorbed
Maine, Plymouth, and (at one time) New Hampshire. Differ-
ent colonies contended for the same territory ; as New York,
New Hampshire, and Massachusetts for Vermont. Massachu-
setts, Connecticut, Virginia, and Carolina had grants to the
Pacific Ocean, cutting across French and Spanish territory.
§ 159] Internal Boundaries. 349
Pennsylvania and Maryland overlapped. Dutch, Swedish, and
French occupation complicated the boundaries. Half a dozen
distinct little colonies were absorbed ; as Maine, Plymouth,
New Haven, and West Jersey. Other colonies budded, as
Delaware from Pennsylvania, and South Carolina from Caro-
lina. At the time of the Revolution, however, the lateral
boundaries, running inward from the ocean, were fixed almost
as at present.
(2) By intercolonial or interstate agreement other impor-
tant lines were adjusted before 1787. The dividing Hne
between Virginia and North Carolina was run almost to the
Mississippi River in 1779; Mason and Dixon's line between
Pennsylvania and Maryland was run in 1763-67. In 1782
by a congressional committee of arbitration the Wyoming
Valley was assigned to Pennsylvania and not to Connecticut.
South Carolina made a small cession to Georgia in 1787. New
York and Massachusetts came to an understanding in 1786
by which Western New York was given up by Massachusetts ;
New York also practically agreed to the independence of Ver-
mont, which was not formally acknowledged until the state was
admitted to the Union in 1791. Texas came into the Union
on its own statement of its boundaries ; a statement denied by
Mexico, and one of the causes of the Mexican War. There
have been a few transfers of small areas from one state to
another, particularly of " Boston Corner," a region separated
by rugged mountains from the rest of Massachusetts, which
therefore became a resort for desperadoes until it was trans-
ferred to the neighboring state of New York in 1853. There
is only one case of the subdivision of a state without its con-
sent: West Virginia was set off from Virginia in 1862, and
even here there was a nominal consent given by a legislature
representing a fraction of the Old Dominion.
(3) The boundaries of thirty states have been defined by
the acts of Congress admitting them to the Union. As parts
of the adjustment of the state land claims from 1778 to 1802,
I Kentucky and Tennessee were admitted into the Union in
350 Boundaries and Annexations. [§ 159
1792 and 1796. In 1802 began the process of subdivid-
ing the Western country into new states. When Ohio was
admitted as a state in 1802, it was given an area of nearly
50,000 miles, that is, about the size of Pennsylvania; and
this was the model for all the states east of the Mississippi
River, no one of which has an area of more than 70,000
square miles. Texas, with 266,000 square miles, came in as
a single state, and so remains. California under exceptional
circumstances got an area of 160,000 square miles. The
states west of the Missouri River, all admitted since i860,
were cut on a larger scale, — Colorado, Nevada, and Montana
each having over 100,000 square miles. The reason is that
so much of the area of those states is taken up by mountains
that they never can have the concentration of population of
the eastern communities. Nevada was admitted prematurely ;
it never had more than 62,000 inhabitants and has since
declined to 42,000, who send two senators and a represent-
ative — it is the " pocket borough " of the Union.
A state boundary once adjusted by act of Congress is not
often altered, although there have been a few cases : the
boundary of California has been a Httle changed from the
watershed of the Sierra Nevadas to a geometrical straight
line ; the northwest corner of Missouri was added seventeen
years after the state was admitted. The boundaries of the
territories have been changed from time to time, the principle
being to create a large territory and then to subdivide it as
population increased or as states were set off. Thus the
Northwest Territory of 1800 was much smaller than the North-
west Territory of 1787 ; and Nebraska Territory for a few years
took in everything north of Kansas, west of the Missouri, and
east of the Rocky Mountains.
The boundaries of our island possessions are simple, —
the three-mile line out to sea round the islands ; after the
Philippines were ceded it was found that two of the small
islands lay outside the boundary of the treaty, and they were
added by a subsequent purchase. With the exception of a
§ 159] Internal Boundaries. 351
few agreements between states for exchange of territory or
the running of disputed lines, Congress has defined the bounda-
ries of all existing political subdivisions west of the Alleghany
Mountains. Occasionally mistakes have been made in sur-
veys : for instance, when Michigan was ready to come in as a
state in 1836, it was found to include a strip of territory till
then held by Ohio ; and the dispute nearly caused a civil war.
Congress adjusted the matter by giving to Michigan the
so-called " northern peninsula."
CHAPTER XX.
TERRITORIES AND COLONIES.
160. References.
Bibliography: A. P. C. Grifi&n, List of Books on Colonization (2d
ed., 1900); Cyclop, of Am. Govt. (1914), I, 584, 603; II, 165, 168, 172,
187; III, 522, 525; Channing, Hart, and Turner, Guide (1912), §§ 167,
180, 187, 197, 203, 208, 221, 222, 225, 266; B. A. Hinsdale, Old North-
west (1888), 429-432; A. B. Hart, Manual (1908), §§ 29, 30, 43, 44, 85,
86, 115, 116, 153, 154, 163, 168, 173, 178, 218, 219, 294; E. McClain,
Constitutional Law (1910), § 184.
Territories in General: J. A. Woodburn, Am. Republic (1916),
ch. viii; W. F. Willoughby, Territories and Dependencies (1905), ch. i;
A. B. Hart, National Ideals (1907), ch. ii; J. B. Moore, Digest (1906),
I, §§ 100-124; B. A. Hinsdale, Am. Govt. (4th ed., 1917), §§ 409-412,
ch. xh; A. B. Hart, Foundations of Am. Foreign Policy (1901), chs.
V, vi; F. H. Giddings, Democracy and Empire (1900), chs. i, xvi, xvili.
Government of Territories: E. McClain, Constitutional Law
(1910), §§ 185, 186; W. W. Willoughby, Constitutional Law (1910), I,
chs. xxiv-xxvii; W. F. Willoughby, Territories and Dependencies (1905),
chs. ii, iii; Cyclop, of Am. Govt. (1914), Arts, on Alaska; District of
Columbia; Hawaii; Territories of U. S., Organized; Territory, Ac-
quired, Status of; Territory, Constitutional Questions of; J. Bryce,
Am. Commonwealth (ed. 1910), I, ch. xlvii; T. Roosevelt, Winning of the
West (1889-1896), III, ch. vi; M. Farrand, Legislation for Organized
Territories (1896). — Sources: A. B. Hart, Contemporaries (1897-1901),
III, §§ 46, 114, 135, 136; IV, §§ 17, 34, 42, 43, 186; Am. Hist. Leaflets,
Nos. 2, 17, 22, 32; M. Hill, Liberty Documents (1901), ch. xvi; C. A.
Beard, Readings in Am. Govt. (1909), ch. xxi.
Dependencies: A. Shaw, Political Problems (1907), ch. ix; W. W.
Willoughby, Constitutional System (1904), ch. xvii; Cyclop, of Am. Govt.
(1914), Arts, on Canal Zone; Dependencies of the U. S.; Indian Govt.,
Stages of Growth; Indian Policy of the U. S.; Indian Reservations;
§ i6i] Jurisdiction and Ownership. 353
Indian Treaties; Indians, Constitutional and Legal Status of; Insular
Cases; Philippine Islands; Protectorates, American; W. F. Johnson,
Century of Expansioti (1903), chs. vii-ix; J. H. Latane, America as a
World Power (1907), ch. viii; F. A. Ogg, National Progress (1918),
chs. xiii, xiv; Am. Colonial Policy and Administration (Am. Acad. Pol.
Sci., Annals, XXX, 1-134, 1907); P. S. Reinsch, Colonial Govt. (1902),
part vii; D. S. Jordan, hnperial Democracy (1899), Nos. 3, 4; J. Bryce,
Am. Commonwealth (ed. 1910), II, ch. xcvii; W. W. WUloughby, Con-
stitutional Law (1910), I, chs. xxix, xxx; C. F. Randolph, Law and
Policy of Annexation (1901); C. C. Langdell and S. E. Baldwin, in Har-
vard Law Rev., XII, 365-416 (1899); Foreign Policy of the United States
(Am. Acad. Pol. Sci., Supplement, 1889). — Sources: A. B. Hart,
Contemporaries (1897-1901), III, §§ 113, 114; IV, §§ 186-191; M.
Hill, Liberty Documents (1901), ch. xxiv; A. H. Howe, Insular Cases
{House Documents, 56 Cong., 2 sess.. No. 509, 1901); the Insular Cases,
in 182 and 183 U. S. Reports.
161. Jurisdiction Contrasted with Ownership.
Ownership of land by individuals, corporations, municipali-
ties, states, or the federal government implies the right to use
it for crops, for taking minerals, for the site of buildings, in
short for any purpose which does not interfere with the rights
of other people. The main peculiarities of the ownership of
land by governments are (i) that the holding rarely returns
to private ownership, and (2) that government property pays
no taxes. The municipalities pay none, because they are
parts of the states ; the states, because it would simply be
appropriating money in order to pay it back into the treasury ;
the national g9vernment does not tax state or municipal prop-
erty, and the states do not tax national property, because the
right to tax involves the right to tax heavily if taxation be
allowed at all, and either power might thus extinguish the
authority of the other. In other incidents, public and private
ownership are much the same : the states and the nation may
buy and sell their real property, and may take and give title ;
both the private and the public owner may warn off un-
authorized people from entering their land, and may sue the
trespasser who commits damage. The private owner of land is
in all cases subject to the higher authority of the government.
23
354 Territories and Colonies. [§ i6i
Private or corporate land, mines, or quarries may be com-
pelled to receive government inspectors; the owner and his
servants and tenants are always subject to the authority of
governments to make, to execute, and judicially to apply laws
over all property and persons within their boundaries. To
this authority is usually applied the term " jurisdiction." For
instance, the United States owns millions of acres of land in
the far Northwestern states, but the states have prime jurisdic-
tion over crimes committed upon those lands, over contracts
made within them and relating to them, and over the personal
relations of people living on them ; on the other hand, in the
territories of Oklahoma, New Mexico, and Arizona, hundreds
of thousands of acres are owned by private individuals, but
the authority to make laws for the * transfer of property, for
• roads, and the like is not primarily in the representatives of
those people, but in Congress.
There is a saying that " an Englishman's house is his castle,"
which means no more than that in England no person has a
right to enter on the land of another in order to serve summons
in civil cases. That principle does not prevail in the United
States : no man may lawfully refuse to admit officers of the
law, armed with a legal warrant, in search of persons charged
with crimes or of evidence of the violation of law, or under
due legal authority seeking to serve writs, subpoenas, and
notices of suits. In practice, city policemen habitually enter,
without warrants, all kinds of places where they suspect wrong-
doing : for example, in New York City in 1902 gambling
houses were repeatedly raided by the police.
The federal system involves a double jurisdiction, and some-
times a triple jurisdiction. For instance, federal laws against
robbing the mail extend all over the Union, in all states and
territories ; but separate state and territorial laws against rob-
bing banks also apply. A United States statute on interstate
commerce, a state law regulating insurance on freight in
transit, and a municipal ordinance against the whistling of
locomotives within city Hmits, may all apply to the same train
§ i62] District of Columbia. 355
on the same piece of track. The line between national juris-
diction and state jurisdiction does not coincide with the
state and territorial boundaries, and is hard to define exactly.
On some subjects there is concurrent jurisdiction : for in-
stance, the United States lays a liquor license on the sale of
liquors in every state, and some states lay another tax upon
the sale of the same liquor. To distinguish between the two
ranges of jurisdiction is the task finally of the United States
Supreme Court. There are, however, several kinds of terri-
torial area in which the jurisdiction rests solely in the federal
government, or in such temporary local governments as it may
create.
162. District of Columbia.
First of these special jurisdictions in public attention is the
District of Columbia, which has been described in a preceding
section as the seat of national government and the centre of
national administration. In 1 790, by their acceptation of the
act of Congress on the seat of government, the states of Mary-
land and Virginia duly ceded all claim to jurisdiction over the
District. Meanwhile for ten years the temporary seat of
government was Philadelphia; but early in 1800 Congress,
the President, and the Supreme Court took up their abode in
the new city of Washington. Difficulties arose from the fact
that the District had been partly Maryland territory and
partly Virginia territory; and in 1846, at the request of
Virginia, the southern part was receded, so that the present
District of Columbia is an area containing about 70 square
miles, wholly on the north side of the Potomac River. Its
population is 279,000; the assessed valuation of private prop-
erty about $198,000,000, and that of public property about
$234,000,000.
Under the constitutional power to legislate for the District
of Columbia " in all cases whatsoever," Congress in 1800 en-
acted that the then existing Maryland laws should apply to the
part of the District north of the Potomac, and the Virginia laws
35^
Territories and Colonies. [§ 162
to the part south of the Potomac. For local purposes, the
federal government has at different times set up three forms of
government within the District: (i) in 1802 the city govern-
ments of Washington, Georgetown, and Alexandria, each with
a mayor and two councils; (2) in 187 1 a territorial govern-
ment, with a governor and an elective house of delegates ;
(3) this government got heavily into debt, and in 1878 the
District vi^as turned over to three commissioners appointed
by the president, with power to make local ordinances. The
people have now no direct voice whatever in their local gov-
ernment : the only legislative body is the two houses of Con-
gress. In addition Congress has provided a special system of
courts for the District, with a supreme court, which is of
special importance because it often has occasion to try cases
which involve the powers of federal officials acting within the
District. Since a large part of the real estate in the District
is owned and occupied by the government, the United States
pays one half the cost of keeping up the District government,
and the rest is assessed upon the private tax-payers. The
committees on the District of Columbia in the Senate and
House, especially in the Senate, have large influence over this
government, which costs about ;^ 7,000,000 a year.
Congress has, first and last, passed many special statutes for
the District of Columbia, and most general laws (for instance,
on bankruptcy, copyright, patents, the income tax) have been
considered to apply to the District as well as to the states.
In the Insular decisions of 1901, the Supreme Court seems
to express a doubt whether a general law applies unless the
District is particularly stated to be included.
The most serious question of government that ever arose
in the District of Columbia was slavery. From about 1820
petitions for the abolition of slavery were introduced at fre-
quent intervals; in 1850 an act was passed regulating the
slave trade in the District; and in 1862 another statute set
the slaves free, with a compensation of about ;^ 1,000,000 to
the owners.
§ 163] Forts and Sites. 357
163. National Forts and Sites.
The same clause of the constitution which provides for the
District of Columbia also authorizes " like authority over all
Places purchased by the Consent of the Legislature of the
State in which the same shall be, for the Erection of Forts,
Magazines, Arsenals, Dock-yards, and other needful Build-
ings." Under this provision, the United States has acquired
many sites for lighthouses, military posts, navy yards, arsenals,
post-offices, custom-houses, and many other public buildings.
A formal cession of jurisdiction is obtained from the state
legislature. Such cessions are usually very readily granted,
sometimes outright, more commonly with a reservation that
the land shall be used only for public purposes, and shall
revert to the state jurisdiction if the United States ceases to
own it or to use it for the purpose for which it is ceded ; and
with other reservations as to jurisdiction.
In 1860—61 was raised the important question whether a
state could reoccupy such grants without the consent of the
United States. All the government reservations within the
limits of the eleven seceding states, except three forts, —
Pickens, Key West, and the Dry Tortugas, — were seized by
the states in 1861 ; and the war technically began with the
forcible capture of Fort Sumter by the state of South Carolina.
Since the Civil War nb attempt has been made to repeat such
acts, and the principle is commonly accepted that by state
cession such little tracts cease to be parts of the states, are
not really within their boundaries, and are not subject to
state taxation or to state laws unless there is a reservation to
that effect. Crimes committed in them may be examined
and punished by United States courts, although in such cases
the courts follow the procedure of the local courts.
The question of criminal jurisdiction over territory thus
ceded to the United States is somewhat perplexmg, because
most of such cessions include the restrictions that the state
shall have concurrent jurisdiction, and that state processes run ;
358 Territories and Colonies. [§ 164
and Congress has enacted that even without such a reserva-
tion state processes may be served. This means that a person
charged with committing a crime within a state, who takes
refuge in federal jurisdiction, may be followed and arrested by
state authorities ; and that suits against residents of such
territory may be entered in state courts.
Certain cases from their nature go to the federal courts,
whether they occur within or without the special federal juris-
diction ; such are maritime cases, seizures under United States
laws, and offences against federal laws, — as, for instance,
discriminating in interstate commerce or robbing the mails.
Since 1841 Congress has by law prohibited the acquirement
or the occupation of any land over which the jurisdiction of the
states has not been extinguished. Where that precaution has
not been previously taken, crimes committed in public build-
ings may still be tried by the state courts ; otherwise, Con-
gress has power to provide for exclusive jurisdiction in such
places, without reference to state laws or to state courts ; but
in practice it allows concurrent jurisdiction for crimes not
directed against federal authority.
The ordinary citizen is not aware of these distinctions : if
he is robbed in a custom-house and the thief is caught, he
appears as a witness without concerning himself whether it is
a federal or a state court, and. without noticing that in some
cases the federal courts apply the law ^f the state. The real
significance of the whole system is thtt it makes the federal
government, in all its special jurisdictions, independent of the
efficiency of state governments.
164. Indian Reservations.
The next form of special jurisdiction is Indian reservations.
Originally the only owners of the soil were the Indian tribes :
the English settlers from the first admitted that they could
obtain a right to the lands only by the consent of the Indians.
As settlements increased, especially after the Revolution, the
new ground was taken that the Indians had only a right of
§ 164] Indian Reservations. 359
" occupancy " ; and since the federal constitution went into
force in 1789, nobody but the United States has had any
right to deal with them. The Indian tribes cannot transfer
lands either to individuals or to the state governments ; yet
the only constitutional authority for national care of the In-
dians is the clause that Congress shall have authority to regu-
late commerce " with the Indian tribes." The real basis of
the whole Indian system is the precedent of government con-
trol in colonial and Revolutionary times.
Another principle on which the United States insists is that
Indian lands do not belong to individual Indians, but to the
tribes as a whole ; hence the ordinary method of securing In-
dian lands has been by agreement between a tribe and the
federal government. Such agreements were for a century
called " treaties," and had to be duly ratified by the Senate.
Since 187 1, however, no "treaties" have been negotiated ; in-
stead, " contracts " or agreements have been made by the
president alone, or by authority of Congress.
The basis of our Indian policy is to be found in the two
principles that the land is tribal, and that it may be trans-
ferred only to the federal government. Before the Revolu-
tion, the white people possessed nearly all the belt of land
between the Atlantic coast and the Appalachian range. After
the Revolution, for half a century a system prevailed of draw-
ing boundary-lines nearly north and south between the whites
and Indians, the whites not to pass to the west, the Indians
not to pass to the east. About 1830, the white settlements
had so increased that they penetrated far into the Indian
country ; and President Jackson adopted the new policy of
confining the Indians within reservations surrounded by ring
boundaries, outside of which white people might settle, but
within which they could come only as visitors. He also
moved the tribes from Georgia and Alabama beyond the
Mississippi River, where their descendants now live in the
Indian Territory; and many of the tribes from the North-
western states were moved into similar reservations.
360
Territories and Colonies. [§ 164
So long as reservations were within a territory, it was simply
a matter of convenience : one part was governed by a terri-
torial legislature, another part, — the Indian reservation, —
solely by Congress. When states containing Indian reserva-
tions were admitted, those reservations remained political
islands, not included within the jurisdiction of the states : for
instance, the Ponca reservation in Nebraska, the Rosebud
Sioux reservation in North Dakota, and the Modoc reserva-
tion in Oregon are not legal parts of those states. The exist-
ence of such reservations in Georgia late in the twenties led
to a violent protest from that state, and finally to the forcible
incorporation of parts of the former reservations within the
state's county system.
At present the federal government maintains 140 such res-
ervations scattered throughout the West with a total area of
about 76,000,000 acres, or 119,000 square miles, and an
Indian population of 130,000. In the Indian Territory so
called, there are governments with legislatures for separate
tribes ; but it has no delegate in Congress, and is simply a
local form of government permitted by Congress. In other
reservations the only organized government is the tribal : the
chiefs may punish petty crimes and decide local matters ; but
the real government is the Indian agent, .who is practically
governor, judge, and marshal, often inflicting mild punish-
ments. For many years there were no courts to try offences
committed by Indians against Indians, or by Indians against
whites; but in 1885 the jurisdiction of the federal courts
sitting in some Western districts was extended over the neigh-
boring Indian reservations.
The reservation system is now breaking down. The reserva-
tions from time to time diminish in size, because they contain
good land much coveted by white settlers, and capable of
maintaining from five to a hundred times as many whites as
Indians. Some reservations have boundaries established by
treaty, and can be diminished only by consent of the tribe,
which has usually been obtained by paying a sum of money
ui a3" Greemvicll
IXDIAN RESERVATIONS.
IFrmn the Map cornpiled by the Commissioner of Indian Affairs, t908j
BORMAY II CO.. N.y
§165] Status of Indians. 361
for the cession, sometimes millions of dollars. Other res-
ervations are established simply by an order of the president,
and may be modified by him without ceremony. In general,
the Western people do not like to have reservations in
their neighborhood, and constant pressure is put on the
government to diminish or abolish them. About 1880 efforts
were made to move the Ponca tribes from their reserva-
tions in Nebraska into other states, but they pined for the
homes of their birth, and went back to the lands from which
they had been taken ; and Congress finally restored their res-
ervation.
165. Status of Indians.
Under act of Congress, the control of the Indians is vested
in a commissioner of Indian affairs, appointed by the president
and subordinate to the secretary of the interior. The execu-
tive officers of the Indian Bureau are the Indian agents, who
until 1849 were also military officers; since that time they
have usually been civilians. Each agent has a force of clerks,
and often there is an agency doctor and farmer provided by
the government; there are also schools at the agency and
scattered through the reservation. The sale of liquor on res-
ervations, or to the reservation Indians, is prohibited ; but it
is practically impossible to prevent such sale in the neighbor-
hood of reservations, as it is to enforce the regulation that
white people shall not go on the reservation and take up lands
there. President Grant instituted a body of officials called
the Board of Indian Commissioners, which goes about among
the reservations and examines and reports, but has no power of
control. The Indians can also make representations through
their agents, and sometimes send delegates to Washington to
urge their interests.
By act of Congress of February 8, 1887, an Indian who has
formally left his tribe and settled down like other people be-
comes thereby a citizen of the state and of the United States,
entided to the same rights and privileges as other men ; but
362
Territories and Colonies. [§ 165
the Indians who remam with the tribes on the reservations
are not subject to state laws, and have not the privileges of
citizens.
From the beginning of the Revolution to the present day,
the federal government has hoped and attempted to bring
the Indians up to such a scale of civilization that they might
be relieved of this anomalous status. During the last twenty
years, it has made special efforts to get the Indians to divide
up the reservations into farms held in severalty, — that is,
each family to have a title to a particular tract, with the pro-
vision that they shall not transfer it within twenty-five years.
About 108,000 Indians have thus come out of the reservation
status; but about 130,000 remain on the reservations, practi-
cally as wards of the nation, as persons not sufficiently mature
to protect their own rights. Their property, often very large,
is held and administered for them ; in most of the agencies
they receive rations, practically distributed by the government ;
and they have government schools. For these purposes,
Congress appropriates about ^7,000,000 annually.
An exceptional status is found in the Indian Territory, in-
habited by the so-called " five civilized tribes," the Chero-
kees, Creeks, Choctaws, Chickasaws, and Seminoles, 85,000 in
number. Many of them are well-to-do, have good houses,
and maintain tolerable schools. They are very strenuous
against holding land in severalty, because their tribal lands
amount to about 20,000,000 acres, or about 250 acres for
every man, woman, and child. Much is tilled as farm land ;
other large areas are valuable for grazing ; and considerable
tracts are underlaid by coal and other minerals. Notwith-
standing the principle that the white people are not to live on
Indian reservations, about 200,000 whites live in the Territory ;
although they cannot legally acquire title to a single acre of
land, considerable towns have grown up in the heart of the
Indian country by so-called "leases," frequently not author-
ized by the government. In addition, there are large trust
funds, the proceeds of previous land sales, held in Washington
§i6s] Status of Indians. 363
for the benefit of the Indians. This state of things cannot
last much longer : it is probable that these Indians will soon
be compelled to accept small areas of land in severalty, and
that the rest of their land will be distributed among the white
people. The property of these Indian tribes is so large that
white people who have married Indians have sometimes sought
to get themselves enrolled as members of the tribe and sharers
in the common benefits.
It will thus be seen that there are three very distinct classes
of Indians: (i) Those who have left their tribes and settled
down. These include some of the remnants of the colonial
coast tribes; as the Marshpee Indians on Cape Cod, the Gay
Head Indians on Martha's Vineyard, remnants of the Iroquois
in New York, and a few Seminoles in Florida ; but the mass
of citizen-Indians are those who recently settled in severalty,
almost all of them on farms. (2) The tribal Indians on the
reservations, which were not large enough to support the In-
dians by hunting, and are diminishing in area. Unless these
Indians can make a living by farming, which is not com-
mon, they must be fed by the government or they will starve.
(3) The civilized tribes in the Indian Territory, and also the
Navajos, Maquis, Zunis, and other Indians in New Mexico and
Arizona, who are intelligent and capable of taking care of
themselves, and who have valuable tribal lands and other
property. Some of them by the treaty of 1848 with Mexico
are citizens.
The purpose of the government is to bring all the Indians
to a self-supporting citizenship basis, but it is plain that the
weaker ones will have to be supported by the government for
a long time to come. What the Indians need is first of all a
code of Indian laws administered by special courts. Then,
too, many of the Indians who cannot become successful farm-
ers can be useful as cowboys and ranchmen, and the govern-
ment ought to encourage their raising stock. Twenty years
ago, some progress was made in enrolling the Indians as
soldiers ; but the system broke down, not because they were
3^4
Territories and Colonies.
[§ 1 66
not brave, efficient, and disciplined, but because they would
not consent to remain indefinitely away from their families.
The following table does not include Alaska : —
Tribal
Indians.
Other (taxed)
Indians.
Congressional
Appropriation.
i860
1870
1880
1890
1900
295,400
287,981
240,136
189,447
129,982
44,021
25.731
66,407
58,806
107,706
$1,683,419
4,927,980
4,713.179
5.455.413
7,108,406
166. Organized Territories and Dependencies.
The next form of exclusive jurisdiction is the so-called " ter-
ritories." The only clause of the constitution on the subject
is that Congress shall have power to " make all needful Rules
and Regulations respecting the Territory or other Property
belonging to the United States." Upon its face, this would
seem to refer to ownership rather than to jurisdiction ; but in
1789 Congress had already passed two ordinances for the
government of the Western country, and presumably was ex-
pected to administer the inchoate states. The promise of
statehood expressed in the votes of Congress in 1780, 1784,
and 1787 does not reappear in the constitution.
The first national legislation for the territories was the
Ordinance of April 23, 1784, which promised that Congress
would establish temporary governments, and later state gov-
ernments, provided the communities should be republican and
should remain subject to the Articles of Confederation. The
Northwest Ordinance of 1787 was still more detailed. It pro-
vided for two successive forms of territorial government : —
(i) A governor and three judges were to be the legislature.
(2) When there were 5,000 free men in the territory, they
were authorized to set up a legislature, the upper house to be
appointed by Congress, the lower house to be elective. This
§ 1 66] Territories. 365
form of government also contained the famous " Compact,"
which set forth that in the Northwestern Territory there should
be freedom of religious worship and sentiment, habeas corpus,
trial by jury, fair judicial process, and good faith toward the
Indians ; schools and means of education should thereafter
be encouraged ; and slavery should not be further introduced.
This Northwest Ordinance was practically the foundation
of the later territorial governments ; it was confirmed by the
new Congress in 1789, and substantially reenacted for the
territory south of the Ohio River in 1790. Most of the terri-
tories have gone through two stages of government, — first by
an appointive council, and later by an elective body ; in all
cases statutes passed by the territorial legislature have been
subject to the governor's veto, absolute or suspensive ; and
Congress always could, and sometimes did, annul territorial
laws.
The only regions within the continental block of the United
States which have never been territories of the United States
are the thirteen original states, including Vermont, Kentucky,
and West Virginia; and Texas and California, which were
admitted without any preliminary territorial government. At
present there are but three communities having governments of
the ordinary territorial type : New Mexico, Arizona, and the
Hawaiian Islands.
The governors of the territories, appointed for terms of four
years, have frequently been sent out from the Eastern states ;
of late years it has become more common to appoint residents
of the territories. There is also in each territory a secretary,
a treasurer, an auditor, and often a superintendent of public
instruction, all appointed by the president and confirmed by
the Senate. In addition there is a body of territorial judges,
appointed by the president for four years ; strictly speaking,
these are not "judges of the United States," but are appointed
as a part of the general system for the care of territorial
governments, and may be removed by the president for rea-
sons which seem good to him.
366 Territories and Colonies. [§ 166
The territorial legislature makes laws for the territory, and
also creates local and municipal governments with power to
make local ordinances. Every territory sends an elected
delegate to Congress, who has the salary and most privi-
leges of members, except the right to vote. The interest of
the people of the territories in their government is smaller
than that of the people of the states, because they have less
control ; but the territorial system is an excellent preparation
for future statehood. The expenses of the territorial govern-
ments, about ^200,000 a year, are borne by Congress.
The territorial legislatures have power to establish corpora-
tions for public purposes, but there are many limitations on
that authority. They may authorize the laying of taxes for
local purposes, but cannot assess general territorial taxes.
Territorial or local debts may be incurred, and taxes for paying
such debts may be laid, only by the permission of Congress.
National control over the territories is exercised partly by
provisions in the statutes creating the territories, or by new
legislation ; partly by appeals from territorial courts to federal
courts ; and partly by the power of the president to remove
territorial officers. The most striking instance of the disal-
lowance of a territorial statute by Congress is the annulment,
in 1887, of the laws of Utah relating to polygamy, and the
dissolution of the corporation of the Church of Jesus Christ
of Latter Day Saints, which had an old territorial charter;
and the farthest point of control by Congress was reached
when, by the same act. Congress provided for the confiscation
of the property of the Church and its application to public
education in the territory of Utah.
Territorial governments may be terminated in one of two
ways : either by withdrawing the government altogether, as
in Missouri Territory from 1820 to 1854 ; or by admitting the
territory as a state, in which case the old territorial laws con-
tinue in force until altered by the new state government.
In the early Western territories, the organizing force was
men of Anglo-Saxon stock, emigrants from the Eastern com-
§ i66] Dependencies. 367
munities. A new problem was presented in 1803, when
Louisiana became a territory, with a French and Catholic
population, a different system of laws, and a total lack of ex-
perience of representative government ; the new community
protested so strongly against the appointive legislature created
in 1804 that in 1805 it received a representative legislature.
The Floridas had a small population when annexed, and within
a few years Anglo-Saxons arrived in^ sufficient numbers to take
possession of the government. Texas had been organized by
settlers from the United States long before it was annexed.
California had less than 300 Americans when it was annexed
in 1848, but the discovery of gold speedily brought an Ameri-
can and European population, which organized a state govern-
ment ; it never was a territory. New Mexico and Arizona to
this day have many Mexicans ; in these communities it has
been found hard to organize a government on the American
pattern.
The conditions were different in the three annexations of
1898, — the Hawaiian Islands, Porto Rico, and the Philip-
pine Islands. The Hawaiian Islands contain about 35,000
natives, 26,000 Chinese, 61,000 Japanese, 13,000 Europeans,
and about 20,000 Americans and their descendants. The ter-
ritorial government established by Congress in 1899 was of
the usual type, with an elective legislature and ah appointive
governor of American descent resident on the islands ; but it
has been found hard to make the system work with a mixed
population. Porto Rico, the whole population of which is a
civilized people, received in 1900 a special and unusual terri-
torial government, in which the upper house of the legislature
contains a majority of appointive members ; the governor is
appointed by the president, and sent out from Washington.
The government of the Philippine Islands presents more
difficulties, because they contain a large civilized population,
and also a large element of natives of various degrees of
savagery ; and because, from the occupation of Manila in
1898 down to 1902, an insurrection was continuously going on.
368 Territories and Colonies. [§ 166
For the government of the Philippines, Congress on March 2,
1 90 1, adopted the unusual, though not unexampled, method
of authorizing the president to establish such a form of govern-
ment as he saw fit; but on July i, 1902, a thorough detailed
territorial government was established, headed by an executive
commission. There is provision for future representation of
the people, and they already take part in the local govern-
ments so far as they show capacity.
At present there are three very distinct types of legally-
organized territorial governments: — (i) That enjoyed by
nearly all the territories from 1787 down, with a representa-
tive territorial assembly and with considerable powers to make
laws. There are now four such territories, — New Mexico,
Arizona, Oklahoma, and Hawaii. (2) The form applied to
the Northwest Territory, in which one branch of the legisla-
ture is appointive, thus giving the president indirect power to
prevent legislation which he thinks unwise. Porto Rico is at
present the only example. (3) Areas in which the people
have no part in choosing their legislatures, and therefore no
self-government in general matters, although local self-govern-
ments may be set up. This is the type of Alaska and the
Philippines. All these types of government are created by
act of Congress, may be altered by act of Congress, and have
no other authority than such as Congress chooses to confer
upon them.
In any other country such governments would be called
" colonial." Indeed, the present government of Oklahoma
strikingly resembles the government of New York before the
Revolution : an appointive governor ; judges appointed directly
or indirectly by the crown ; an elective assembly subject to
the governor's veto ; acts passed and approved by the gov-
ernor, subject to reversal by the home government ; appeals
allowed from the decisions of the judges to a court of the
general government. In truth,, the territories are and ever
have been colonies, the main difference from the English
colonies being the expectation that the territories would
§ 167] Unorganized Dependencies. 369
eventually become states ; but Montana was nearly ninety
years in the territorial condition before it was admitted into
the Union, and New Mexico with a considerable population
has remained a territory from 1850 to 1903.
167. Unorganized Dependencies.
The next group of regions subject to the exclusive jurisdic-
tion of the United States is territory which has become a part
of the Union but has received no organized government, and
the people of which have not a completely-defined body
of rights. To make this subject plain, the various steps in
acquiring authority over new territory must be noticed.
(i) During a military campaign outside our boundaries,
the commanding general exercises governmental authority
over all the territory within his lines, as a part of his power to
make war. For instance, in the Mexican War, General Scott
laid and collected customs duties and internal taxes in Mexico ;
and in 1899 General Wood laid taxes in Cuba. Such acts
hold good till the region thus occupied becomes vested in the
United States by a treaty of peace.
(2) After cession by a treaty, before Congress has taken
any action, to some degree the acts of the previous military
government are continued in force provisionally ; but no tax
can be laid except by Congress. When in 1899 the president
authorized a special tariff for Porto Rico, the Supreme Court
decided that nobody but Congress could levy or authorize
the levying of taxes in such annexed territory.
(3) Congress may pass temporary acts for the government
of territories and may define their powers. The precedents
cited above show that Congress has often enacted such laws,
— as, for instance, the act of March 3, 1901, authorizing the
president to estabUsh a civil government in the Philippines.
(4) Do the previous general statutes of the United States
apply to the new regions as soon as they are annexed? Since,
under the theory of the American government, no community
except a state has a right to create a government for itself,
34
370 Territories and Colonies. [§ 167
what is the situation of the annexed people ? After the ratifi-
cation of the treaty of 1803, and before Congress had passed
any statute, — that is, for about a year, — Louisiana remained
in an unorganized condition. On October 31, 1803, Congress
authorized the president to take possession of the territory,
and to administer it until Congress should act ; on March 26,
1804, the first form of government for Louisiana was created,
with an appointive council; and on March 2, 1805, the
normal territorial representative government was established.
So in 1 82 1 Congress authorized the president to take posses-
sion of Florida ; he deputed Andrew Jackson as governor,
and endowed him with all the authority previously exercised
by the Spanish captain general, till a regular territorial govern-
ment was organized. From 1846 to 1848 Oregon remained
without a territorial government. California was acquired in
1846, and during the war was administered by a military gov-
ernor; in 1848 it became a part of the Union, but no terri-
torial government was ever organized, and two years later it
was admitted as a state. Alaska was annexed in 1867, and
was made a customs district in 1868; in 1884 Congress
authorized a governor and a district court, and enacted that the
laws of the state of Oregon should be the laws of the district
of Alaska so far as applicable; in 1899-1900, better regula-
tions for government were adopted and also civil and criminal
codes; but it never has had a regular organized territorial
government. The basis of these precedents, which do not
always agree with each other, must be found in one or another
of two colonial theories.
(i) The first theory is that, the moment a treaty is ratified,
the people of the territory are thereby completely incorporated
into the United States, so that every law passed in general
terms applies to them : they come within the customs bound-
aries and are subject to the same rate of import duties as
residents of the states, and are entitled to unrestricted trade
between the different parts of the United States ; above all,
the people of such regions become subject to all the privileges
§ 167] Unorganized Dependencies. 371
of freedom embodied in the constitution, sucli as trial by
jury, habeas corpus, indictment by grand jury, counsel in
criminal cases, and the right to keep and bear arms.
This theory of incorporation is subject to two practical
difficulties, not felt when Louisiana or Oregon or even Alaska
was annexed, because these territories were all in North
America, and because at the time of annexation the number
of people concerned was small, (a) The principle would
require the collection of import duties on the same scale
in Porto Rico and the Philippines as in New York or Cali-
fornia, a system which might not be to the interest of either
the continental or the insular United States, (fi) The Amer-
ican and English system of judicial rights is not in accordance
with Spanish law, nor is it adapted to people of imperfect
civilization, or to a community in which there are people of
very different grades of civilization.
(2) A rival theory is that, when territory is annexed, it
ceases to be foreign territory but does not become complete
domestic territory, — that, until Congress acts, it is in a mid-
way status ; hence that, although duties cannot be collected
under the regular legal tariff" on foreign imports from Porto
Rico into New York (because Porto Rico is not foreign),
yet Congress may specifically extend the regular tariff to
the annexed territory, or may provide a special rate of
duty on importations from the dependency into the states
(as from Porto Rico into New York), or may provide a
special tariff on imports into the dependency from a foreign
territory.
This theory was upheld and the discretionary power of
Congress over the tariff in the dependencies was approved
by a majority of the Supreme Court in its famous decision in
the Insular cases in 1901. The judges said that it was in the
power of Congress to decide when territory was completely
incorporated ; and that, when new territory came into the
Union, Congress might make for it a set of laws (including
tax laws) different from the laws applying to that part of the
3/2 Territories and Colonies. [§ 167
Union organized as states. The court did not distinctly pass
on the question whether the people of the dependencies have
all the personal rights guaranteed by the constitution, content-
ing itself with holding that such clauses of the constitution as
are " applicable " apply to the dependencies.
In accordance with these decisions, the president by proc-
lamation, on July 25, 1902 (the conditions imposed by the
act of Congress of April 12, 1900, having been fulfilled),
formally brought the island of Porto Rico within the customs
boundary, and then gave it entire freedom of trade to and
from the states; but Congress, on March 8, 1902, made a
special scale of duties on importations from the Philippines
into the continental United States and vice versa, and a special
tariff on importations into the Philippines from foreign coun-
tries. On the question of personal rights, it enacted on July i,
1902, that the constitution, excepting the clauses for a jury
trial and the right to keep and bear arms, should apply to the
Filipinos.
The reasoning of the Supreme Court would seem to make a
fundamental difference between the people and governments
of that part of the Union organized as states and the people
and governments of other parts of the federal union. It
places the present dependencies upon the following prin-
ciples: — (i) When territory has been admitted as a state,
its people have all the guaranties expressed in the constitution,
and are subject to all the general acts of Congress. (2) For
regions outside the states, Congress has the right to create such
forms of government as it sees fit ; but in practice it creates
representative government, except where it believes true rep-
resentation cannot be obtained ; and all such governments
are subject to alteration or control by Congress. (3) Congress
may adopt a special tax system for such regions. (4) Con-
gress decides when new territories shall be incorporated into
the Union, and may by statute declare that the people of a
particular territory, or of the territories altogether, are entitled
to certain specific constitutional rights. When an act of this
§ i68] Dependencies. 373
kind is once passed, it would seem that it is not in the power
of Congress to repeal it.
In avoiding one series of difficulties, the courts have created
another : up to 1901 it had been supposed that the general laws
of Congress applied also to the District of Columbia and the terri-
tories ; but if Congress may make a special tariff for Porto Rico,
why may it not make one for New Mexico or for the District ?
Although in principle there seems to be no difference be-
tween the power of Congress over the so-called " organized
territories " and the unorganized dependencies, yet in practice
it has set up for the " territories " a government with a rep-
resentative assembly and a degree of personal rights not less
than that in the states ; and for the " dependencies " a govern-
ment with appointive assemblies, or parts of assemblies, in
which the people have not yet received all the personal rights
guaranteed by the constitution. The status of our dependen-
cies therefore seems to be almost exactly that of the American
colonies just before the Revolution, when Parliament undertook
to annul charters and to prevent the elective assemblies from
meeting. Through its system of territories, and of special
dependencies separated from the continent of North America
by seas or broad oceans, the United States has taken a posi-
tion in the world like that of other colonizing powers, such as
England, France, Germany, and Portugal. The ground for
the difference in government between the self-governing terri-
tories and the dependencies is substantially the belief of the
American people that the latter are not yet fitted to be trusted
with their own government ; but in both Porto Rico and the
Philippines it is hoped to create local governments, under
the supervision of the territorial officers, which shall permit the
participation of the people and lead to more complete local
self-government.
168. Protectorates.
Like other colonizing nations, the United States has some
protectorates, — that is, countries not in any sense within our
374 Territories and Colonies. [§ i68
boundaries, yet so far under our influence that they are not
completely independent, (i) The first of these is Liberia,
founded on the coast of Africa by the American Colonization
Society in 1820, under the virtual protection of the United
States. The United States sends a minister to Liberia ; and
it has always been understood that no other power would be
permitted to annex or seriously to molest it.
(2) Something very like a protectorate was exercised over
the Hawaiian Islands, into which American emigrants went
about 1820. Everybody understood for years that the United
States would not permit any other power to annex or to ad-
minister Hawaii, and at various times, as for instance in 1852
and in 1893, attempts were made to annex it to the United
States.
(3) From 1836 to 1845, by its very intimate relations with
Texas, the United States practically exercised a protectorate
over that nominally independent republic.
(4) From about 1882 to 1899 the United States was one of
three powers to exercise a protectorate over the nominally in-
dependent government of the Samoan Islands, since divided
among the three powers, Great Britain, Germany, and the
United States.
(5) A curious kind of protectorate was exercised over Cuba
from 1823 to 1898: the United States many times asserted
the principle that no foreign power should be allowed to take
Cuba from Spain, and even went so far as to promise Spain the
protection of our fleet if needed.
(6) A distinct Cuban protectorate was established in 1898,
when the United States sent an army to Cuba and compelled
Spain to accept a treaty, ratified in February, 1899, by which
Spain withdrew from Cuba but did not transfer it to the United
States. For more than three years longer the United States
remained in Cuba and kept up a military government. On
April 18, 1898, just previous to the declaration of war, both
houses of Congress united in a resolution that the people of
Cuba *'are and of right ought to be free and independent,"
§ 1 68] Protectorates. 375
and that the United States would leave the government and
control of the island to its people. Hence the president aided
the Cubans in framing a new constitution ; but Congress laid
down as a condition of our approval that in their new consti-
tution the Cubans insert a promise not to enter into foreign
relations without the consent of the American government, and
to assign to the United States naval stations on the coast of
Cuba. The relations between the two countries are such that
the United States is bound to intervene to prevent any foreign
aggressions, and is practically so far responsible for the con-
tinuance of good order in Cuba that it must intervene in case
civil war should again break out in the island.
(7) An opportunity to exercise a somewhat similar protec-
tion in China arose in 1900, when there was a joint expedi-
tion of the Western powers up to Pekin to rescue the diplomats
and missionaries who were there besieged. The United States
distinctly set itself against a suggestion that the different pow-
ers should each take a piece of the Chinese territory, and
was the main instrument in securing a settlement by which, on
receipt of a money indemnity for their losses and expenses,
the Western powers should withdraw their troops.
(8) In practice the United States exercises something like
a protectorate over Mexico, not formally through the govern-
ment, but by the influence of American capital there, which
practically requires a guaranty from the Mexican government
that good order shall be maintained and that property shall be
respected. Should civil war break out in Mexico, it is prob-
able that the United States would make a vigorous protest in
defence of the property of its citizens.
(9) Two treaties have recognized the special protection of
the United States over isthmus transit. The treaty of 1846
with the United States of Colombia agreed to guarantee to
that country the possession of the Isthmus of Panama, and
to maintain order on any land or water communication across
the Isthmus; under this partial protectorate, troops have
been repeatedly landed to protect the terminals and the line
376 Territories and Colonies. [§ 169
of the Panama railroad. The Clayton-Bulwer treaty of 1850
asserted a joint guaranty of any isthmus canal by Great
Britain and the United States ; but it was formally rescinded,
with the consent of Great Britain, in 1902. Negotiations
thereupon began with the United States of Colombia as pro-
prietor of the Isthmus of Panama, and with Nicaragua as
proprietor of the Nicaragua Canal route, for possession of a
strip ten miles wide extending from ocean to ocean, with the
right to police and protect it. Such a relation would make of
either canal route a protectorate, if not a dependency ; and
in keeping order over the canal the United States would be
nearly certain to feel a responsibihty for keeping order also in
the adjacent country. The territory between the canal and
the present southern boundary of the United States would
also come into a similar relation with the United States ; for
no other country could possibly be allowed to take it or
seriously to affect its destiny.
169. The Monroe Doctrine.
A further form of territorial influence outside the acknowl-
edged boundaries of the United States is the principle of
special and paramount interest in American questions, to some
phases of which the term " Monroe Doctrine" is now applied.
The original Monroe Doctrine, drafted by John Quincy
Adams and inserted in the president's message of 1823, was a
protest against two things : the attempt of Russia to occupy
the Northwest coast, on the assumption that it was possessed
by no other civilized power ; and the attempt of France, in
behalf of a European coalition, to interfere in Central and
South America with the purpose of compeUing the Spanish
colonies to return to their allegiance to Spain. The first
point of the Monroe Doctrine was that the whole continent
of North America was already either occupied or claimed
by other powers, and hence was not subject to further new
colonization. This declaration against European intervention
in America caused the plan to be dropped, and the only case
§ 169] Monroe Doctrine. 377
of such intervention since that time was that of the French in
Mexico in 1860-67.
The Monroe declaration asserted a special interest of the
United States in neighboring American countries ; and hence,
when other kinds of questions arose with regard to our
American neighbors, it was thought useful to give the name
Monroe Doctrine to protests really based on new reasons.
Thus in December, 1845, President Polk said that the Monroe
Doctrine included the principle of a balance of power in
America; and in 1848 he declared that the Monroe Doctrine
forbade any part of North America voluntarily to transfer itself
to a European power.
The real principles of the Monroe Doctrine were put to the
test in 1 86 1, when a French army, taking advantage of the
complications of the Civil War, invaded Mexico and set up a
monarchical government supported by French bayonets, for
the express purpose of impairing the influence of the United
States in America. Secretary Seward nowhere distinctly re-
ferred to the Monroe Doctrine as his authority, but steadily
protested with increasing force, till in 1867 Napoleon III
took the warning and evacuated Mexico. President Johnson
repeatedly referred to the Monroe Doctrine, and in 1868 in-
sisted that we must annex some of the West India Islands in
order to maintain it; and President Grant took the same
ground with reference to the annexation of San Domingo.
About 1880 arose to magnitude a new American question,
political and territorial, — namely, the question of an inter-
oceanic canal across the American isthmus. Secretary Evarts
in 1880, Secretary Blaine in 1881, Secretary Frelinghuysen
in 1882, all insisted that the Monroe Doctrine gave the United
States sole right to control such a canal, because the participa-
tion of European powers in such control would be an applica-
tion of the European political system to America. This rather
far-fetched doctrine did not prevent the actual beginning of
a canal across the Isthmus of Panama by a French engineer ;
but the failure of the company in 1889, before the canal was
378 Territories and Colonies. [§ 17°
half finished, again brought up the question of the special
interest of the country in that canal, and in 1902 the United
States asserted undisputed authority to build, maintain, and
police such a waterway.
In 1895 Secretary Olney and President Cleveland declared
that the Monroe Doctrine extended to a boundary controversy
between England and Venezuela, and urged that the Doc-
trine contemplated the extinction of all European colonies in
America. This was not Monroe's meaning ; and England in
correspondence insisted that through her colonies Great Britain
was also an important American power. The English posses-
sions, however, are for the most part so distant from Central
America, from the canal, and from South America that the
United States must always be the main political force in that
part of America.
In 1901-02 President Roosevelt and Secretary Hay came
to an understanding with the German government that the
Germans would attempt to make no national settlements in
South America; and it is plain that there will be no further
attempt to annex any part of Central or South z\merica to
any European power. To that extent the United States pro-
tects the country south of it, without, however, taking any
responsibility for good or bad government in the neighboring
American countries. In 1903 the United States made no pro-
test against an armed demonstration and blockade by Ger-
many, Italy, and England against Venezuela, in order to
secure the adjustment of claims for injuries to the person and
property of their citizens.
170. Colonial Problems.
The great extension of the territory of the United States
since 1898 brings the country into new relations with the
world, and a few of the main difficulties of the position may
here be stated.
(i) By our possession of distant colonies having language,
religion, customs, and problems unfamiliar to Americans, we
§ i7°] Colonial Problems. . 379
have taken up the position of a colonizing nation. Until 1898
we could point out the faults of the English in South Africa,
of the French in Cochin China, of the Germans in East Africa,
of the Spanish in Cuba ; but Americans now understand that,
in dealing by military power with an alien and distrustful
people at a great distance, insurrection, brigandage, and
cruelty of both races will break out in spite of efforts to pre-
vent them.
(2) The annexation of an island in the West Indies, and
of a group in the South Pacific, is evidence of an intention
to take part in the development of the world's commerce
both West and East. The main advantage of the Philippines
is to give the Americans a point of vantage for the enormous
trade which is expected to open up in Eastern Asia.
(3) The possession of colonies brings about many unfore-
seen complications in the government of the home country :
we have one set of political principles for the people living
in the states, another for the people living in organized terri-
tories, and another for the people living in dependencies.
This is hard to reconcile with the belief of our forefathers
that the great principles of the Declaration of Independence
applied to all free people in all times,
(4) The administration of so many different kinds of terri-
tory is difficult, because it must include questions of taxation
and of the regulation of trade. Goods may be sent from New
York to any other state in the Union, and also to Porto Rico
and Hawaii, without paying duties ; but goods sent from Cali-
fornia or Hawaii to the Philippines pay special duties on arrival
in those countries ; in like manner, imports from the Philip-
pines into the United States, if the growth and product of the
islands, pay three fourths the regular tariff duties. This neces-
sary distinction produces friction and heart-burnings ; it also
involves the passing of laws to protect American industries
against other American industries, — that is, against the labor
and manufactures of our own dependencies. On the other
side, it involves taxing those dependencies for the benefit of
38o
Territories and Colonies. [§ 170
trade with the home country, yet such discriminations are
exactly what our ancestors protested against in the Revolu-
tionary War.
(5) Another colonial problem is that of providing a proper
civil service for those remote regions. The United States has
exercised great care and discretion in the appointment of
governors, both for the Philippines and for Porto Rico, and
has provided an admirable subordinate service. Unless such a
service is kept tip, misgovernment and misery must inevitably
follow.
Part VII.
Financial Functions.
CHAPTER XXI.
TAXATION.
171. References.
Bibliography: D. R. Dewey, Financial Hist, of the U. S. (1915),
Introduction and ch. headings; W. B. Munro, Bibl. of Municipal Govt.
(1915), §§ 71-73; Macy and Gannaway, Comparative Free Govt., 721, 722
(cases); Cyclop, of Am. Govt. (1914), I, 86, 89, 476; II, 48; III, 214,
471, 476, 481, 493, 495, 505, 507; A. B. Hart, Manual (1908), §§ 117,
118, 220, 221; E. McClain, Constitutional Law (1910), § 68.
Finances in General: H. C. Adams, Science of Finance (1899);
J. Bryce, Am. Commonwealth (ed. 1910), I, chs. xvii, xliii; D. R. Dewey,
Financial Hist. (1915); A. D. Noyes, Forty Years of Am. Finance (1909);
E. McCIain, Coiistitutional Law (1910), §§ 69-79; R- L. Ashley, Am.
Federal State (1911), ch. xxv; C. A. Beard, Am. City Govt. (1912), ch. v;
C. C. Plehn, Govt. Finance (1915); J. R. Tucker, Constitution (1899),
I, 456-518; W. W. Willoughby, Constitutional Law (1910), I, ch. xli;
II, ch. xlix; T. M. Cooley, Constitutional Law (3d ed., 1898), ch. iv,
§ i; C. A. Beard, Readings in Am. Govt. (1909), chs. xviii, xxxi; J. M.
Mathews, Principles of Am. State Administration, chs. x, :i; W. M.
Daniels, Elements of Public Finance (1899); W. B. Munro, Municipal
Administration (1916), ch. x; C. P. Huse, Financial History of Boston
(1916); statistics, in Tribune Almanac, World Almanac, American Year
Book, Statistical Abstract. — Periodicals: The Nation; Bradstreet's; The
Economist; Qtiar. Journal of Economics; Pol. Sci. Quar.; Annals of the
Am. Academy of Political and Social Science; Journal of Political Econ-
omy; Yale Review; National Municipal League, annual Proceedings;
Commercial and Financial Chronicle.
Forms of Taxation: E. R. A. Sehgman, Essays in Taxation (1913),
chs. i, viii, xi; E. R. A. Seligman, Economics (6th ed., 1914), § "5; Indus-
381
382
Taxation. [§171
trial Commission, Reports (1900-1902), XI; XIX, 1014-1070; J. F.
Dillon, Municipal Corporations (sth ed., 191 1), IV, chs. xxvii, xxviii;
T. M. Cooley, Law of Taxation (3d ed., 1903); T. M. Cooley, Con-
stitutional Limitations (7th ed., 1903), ch. xiv; J. Bryce, Am. Com-
monwealth (ed. 1910), I, ch. xliii; C. W. Eliot, Am. Contributions to
Civilization (1897), Nos. 13, 14; H. George, Progress and Poverty
(1879)," bk. viii, chs. iii, iv; R. T. Ely, Taxation in Am. States and Cities
(1888); D.M. Means, Methods of Taxation {igii); C. C. Vlehn, Public
Finance (3d ed., 1909), pt. ii; Cyclop, of Am. Govt. (1914), Arts, on Corpo-
rations, Taxes on; Franchise Tax; Revenue, Internal; Revenue, Public,
Collection of; Tax Commissioner and Commissions; Tax, Income; Tax,
Inheritance; Tax, Land and Real Estate; Tax, Property, General;
Tax, Property, Personal; Tax, Single; Taxation, Constitutional Basis;
Taxation, Exemptions from; Taxation, Limitations on; Taxation,
Mortgage; Taxation of Exports; Taxation of Railroads; Taxation of
Raw Materials; Taxation, Principles of; Taxation, Subjects of; Taxes,
Direct; J. A. Hill, Civil War Income Tax {Quar. Journal of Economics,
VIII, 416-452, 491-498, 1894); C. J. Bullock, Direct Taxes under the
Constitution {Pol. Sci. Quar., XV, 217-239, 452-481, 1900); F. L.
Olmsted, Tobacco Tax {Quar. Journal of Economics, V, 193-219, 262,
1891); H. C. Bannard, Oleomargarine Law {Pol. Sci. Quar., II, 545-
557, 1887); F. W. Taussig, War Tax Act of igi^ {Quar. Journal of
Economics, XXXII, i, 1917); C. J. Bullock, Massachusetts Income Tax
{Ibid., XXXII, 525, 1918); D. A. WeUs, Theory and Practice of Taxa-
tion (1900), chs. i, xii; International Tax Assoc, Third International
Conference on State and Local Taxation (1910); J. H. 'HoMa.ndex , Studies
in State Taxation (1900); C. J. Bullock, Introduction to the Study of
Economics (1900), 514-551; J. A. Fairlie, Taxation and Revenue System
of Illinois (1910), chs. i, viii, x; F. C. Howe, Taxation under the Inter-
nal Revenue System (1896); A. N. Young, Single Tax Movement (1916);
J. A. Hill, Income Tax of 191 3 {Quar. Journal of Economics, XXVIII,
46, 19 1 3).
Assessment and Collection of Taxes: T. M. Cooley, Con-
stitutional Limitations (7th ed., 1903), ch. xiv; T. M. Cooley, Law of
Taxation (3d ed., 1903), ch. xii; N. Matthews, Double Taxation {Quar.
Journal of Economics, IV, 339-345, 1890); H. L. Lutz, State Tax
Commission (1918); Cyclop, of Am. Govt. (1914), Arts, on Assessed
Valuations, Comparative; Assessment of Taxes, National, State, and
Municipal; T. N. Carver, Ohio Inquisitor Tax Law (Am. Econ. Assoc,
Economic Studies, III, No. 3, 1898); J. A. Fairlie, Taxation and Revenue
System of Illinois (1910), chs. ii-vii, ix; C. H. Hamilton, Law of Taxa-
tion by Special Assessments (1907).
Customs Duties and Protection: W. Hill, Colonial Tarifs
{Quar. Journal of Economics, VII, 78-100, 1892); M. E. Kelley, Tariff
Acts under the Confederation {Qiiar. Journal of Economics, II, 473-481,
§ 172] Land Taxes. 383
1888); W. Hill, First Stages of the Tariff Policy (Am. Econ. Assoc,
Publications, VIII, No. 6, 1893); A. Shaw, Political Problems (1907),
ch. ix; O. L. Elliott, Tariff Controversy (1892); D. R. Dewey, Financial
Hist. (1915), chs. viii, xi, xix, xx, xxi; A. B. Hart (ed.), American Nation
(1904-1918), chapters in the successive volumes on the tariffs of 1789,
1816, 1824, 1828, 1832, 1833, 1846, 1857, 1861, 1883, 1890, 1894, 1897,
1909, 1913, see index vol.; E. Stanwood, Tariff Controversies (1903);
F. W. Taussig, Tariff History (6th ed., 1914); S. B. Harding, Minimum
Principle (Am. Acad. Pol. Sci., Annals, VI, 100-116, 1895); F. W.
Taussig, Some Aspects of the Tariff Question (1915); I. M. Tarbell,
Tariff in our Times (191 1); Cyclop, of Am. Govt. (1914), Arts, on Free
Trade and Protection; Tariff Administration; Tariff Commissions;
Tariff Legislation, Framing of; Tariff Policy of the U. S.; Tariff Rates;
Tariff Reform; Tariff Statistics; T. B. Reed, Tariff and Business
(North Am. Rev., CLVIII, 110-116, 1894); P. Ashley, Modern Tariff
History (1910), pt. ii; Laughlin and Willis, Reciprocity (1903). —
Sources: F. W. Taussig, State Papers and Speeches on the Tariff
(1892); A. B. Hart, Contemporaries (1897-1901),' III, §§78, 130; IV,
§§ 164, 166; Bogart and Thompson, Readings in Economic Hist. (1916),
chs. X, xxi; G. S. Callender, Economic Hist, of U. S. (1909), ch. x;
Secretary of the Treasury, Annual Report; Commissioner of Customs,
Annual Report.
172. Land Ta:ses.
Next in importance to territorial functions are the financial :
without the expenditure of money no power requiring private
lands, buildings, materials, stores, or land and naval forces, can
be carried out. For all these outgoes, governments rely on
four sources, — taxes, loans, fees, income from public prop-
erty. The federal, state, and local governments have very
little productive property, and the American theory of public
debt is that it is something to be paid and extinguished;
hence the usual reliance for the support of government is
taxation.
Taxation rests in the inherent principle that governments
have a legal right, in return for the protection and good order
which they afford, to take such part of the annual product of
the country, by imposing taxes payable in money, as may be
necessary for governmental purposes. So long as people all
384
Taxation. [§172
have about the same kind of property, — are all farmers, all
artisans, or all sailors — it is not difficult to find a basis of
taxation which will bear about equally on all the members in
the community. In a complicated society like that of the
United States, with many kinds of people and property, taxes
are numerous and often inequitably distributed.
The most obvious subject of taxation is land, or rather real
estate, which is land and the permanent structures resting
upon it ; in cities the buildings may be worth as much as the
site, while the farm land far exceeds farm buildings in value.
Throughout the United States, this is the main source of state
and municipal revenue ; but there are many kinds of land,
from barren mountains to corner lots in Wall Street, and the
land tax is full of inequalities and variations. Fortunately,
the problem is simplified by the fact that the federal govern-
ment has rarely exercised its constitutional authority to tax
land. Direct taxes were assessed upon land in 1798, 18 14,
and 1 86 1, but under the constitution they had to be distrib-
uted in proportion to population. Hence, for forty years
there has been no federal land tax : it has been left to the
states and municipalities, to which the land tax furnishes from
three fourths to nine tenths of all their income.
Land is visible property, and hence cannot escape the
assessors ; land is valuable property, almost always finding a
purchaser at some figure ; the value of land can be estimated
from the occasional sales of neighboring property- land is the
absolute condition of all human existence, since every family
must have ground under its feet : the weight of a land tax
is therefore more widely distributed than any other form of
taxation ; and it is almqst sure of collection, because unpaid
taxes are a first lien on the land. One of the changes most
ardently demanded by some tax reformers is to throw the
whole taxation upon land, partly because of the ease of assess-
ment and collection, partly because it is hoped in this way to
gain for the public some of the advantages of the rapid increase
of real-estate values in crowded communities.
§ 173J On Personal Property. 385
173. Taxes on Personal Property.
In addition to land taxes, every state and city levies a vari-
2ty of other taxes, the most common of which is the poll-tax,
ranging from 30 cents in some states up to $3 in others.
This is assessed on adult men ; unless they are holders of other
property, it is difficult to collect, even when payment is made
a prerequisite to voting.
Personal-property taxes are assessed on visible personal
effects, such as furniture, clothing, watches and jewelry, on
machinery, animals, stocks of goods, ships, and other property
not attached to land ; and also upon money in hand and upon
paper evidences of property. Since thousands of millions of
dollars in the United States are held in the form of paper
obligations — public securities, mortgages, corporation stocks
and bonds, — most of the states attempt to tax such posses-
sions as part of the wealth of the holders. Unfortunately, in
most cases they are only evidences of visible property, which
is taxed where it lies : a land mortgage is practically a tem-
porary part-ownership in a piece of real estate ; and railroad
bonds simply represent the roadbed, stations, and rolling stock
of the railroad, all of which are already subject to taxation.
Such property is easy to conceal, and therefore hard to assess
equitably, especially when the holders of securities feel that
they are taxed double.
Another personal tax is on incomes ; but few states make
much use of their power to lay income taxes, although these
exist in Massachusetts, Pennsylvania, Virginia, and North
Carolina. The federal government has twice laid an income
tax over the whole country : by acts of July 2, 1862, and June
30, 1863, 3 per cent was payable on all incomes exceeding
^600 a year and less than $10,000, 5 per cent on incomes of
$10,000 and over, and 10 per cent on incomes above $10,000.
It was always an unpopular tax: first, because it could be
fairly assessed only by detailed and unwelcome inquiries into
the business affairs of wealthy men ; secondly, because various
25
386 Taxation. [§ 173
deductions were allowed, — for instance, all state and local
taxes; in the third place, because evasion was easy and hence
the tax very unequal. In 1866 this tax produced $61,000,-
000; in 1867, ;^5 7,000,000. .The total proceeds were in ten
years about $347,000,000, but this sum was paid chiefly
by people in a few wealthy states. In 1872 the tax was
repealed.
In 1894 the so-called "Wilson-Gorman Tariff Bill " some-
what reduced the tariff. To offset the loss of revenue, a
second income tax was enacted, levying 2 per cent on the
surplus of incomes above $4,000 ; receipts from interest on
United States bonds and the salaries of United States officials
were exempted. The act specifically included the net profits
or incomes of most corporations, other than charitable and
religious societies, savings banks, and insurance companies.
Before this tax was fairly under way its constitutionality was
attacked, although the similar income tax of 1S62 had been
held valid by the Supreme Court. That court, in a decision
of April 8, 1895 {^Pollock y. Farmers^ Loan and Trust Com-
pany'), held unconstitutional that part of the act which taxed
incomes from state, county, and municipal bonds, and incomes
derived from real estate. The decision was based on the
ground that a tax on the income from. state bonds was equiva-
lent to a tax on the state ; it was influenced by the fact that
state taxes on incomes from United States bonds had repeat-
edly been held unconstitutional. A tax on rent was held to
be equivalent to a tax on land, and hence to be a direct
tax.
The decision practically destroyed the unity and fairness of
the act; and on May 20, 1895, on a rehearing, the court
went still farther, and declared that a tax on income of any
kind was a direct tax, which under the constitution must be
assessed in proportion to the population of the state. Four
judges dissented, but the act was invalidated ; hence, in case
of future need, the United States will be unable to make use
of a form of taxation very common in other countries, very
§ 174] License Taxes. 387
elastic, very productive, and successfully tested during the
Civil War.
Another form of property tax is the so-called " succession
duty," a tax on legacies. It avoids most of the objections to
an income tax ; for the value is easily ascertained, since prop-
erty which passes by inheritance or by will is ordinarily trans-
ferred through a probate court and is commonly inventoried
and appraised ; hence no new or unusual inquiry into the
amount of the property is necessary. The tax is also sub-
tracted before the property comes into the hands of a new
owner, who thus feels the sacrifice less. Succession taxes have
been laid in nearly twenty states, usually with exemptions for
property transferred to blood relatives, for small estates, and
for charitable bequests. Perhaps the heaviest tax is that of
Missouri, varying from 5 per cent to 7|- per cent, with very
few exemptions.
By act of June 13, 1898, a similar tax was levied by the
United States, running as high as 15 per cent. It was soon
held by the Supreme Court not to be a direct tax, and proved
productive, especially as there was no exemption of charitable
bequests. In states which already had collateral inherit-
ance taxes, the double duty, federal and state, was in some
cases one fifth of the whole property transferred. In 1902
the federal tax was repealed, leaving the state taxes as
they were ; and duties collected on charitable, religious, and
educational bequests were refunded.
174. Specific, Corporation, and License Taxes.
Among the forms of state and municipal taxation is the cor-
poration tax. This is sometimes laid on railroads and other
corporations owning large amounts of real estate which is
otherwise not sufficiently assessed ; but it is not suitable for
corporations like banks and insurance companies, which have
little real estate but do a profitable business. A favorite de-
vice is to lay a lower tax on corporations chartered by a state
than on " foreign corporations," a legal term which includes
388
Taxation. [§ 174
all corporations chartered by other states but doing business
in the state concerned. This tax is ordinarily easy to collect ;
for the names and holdings of the stockholders are bound to
appear on the corporation books, and the tax may be paid in
a lump and withheld out of dividends to the stockholders.
Another form of taxation, best represented by the New York
Corporation Tax of 1899, aims to tax the money value of
franchises which have been given to corporations by states or
municipalities. In many cases, traction companies have issued
millions of bonds representing the earning value of their lines,
— that is, they capitalize the free use of the streets. The
theory of the New York law is that the fact of the company's
receiving this valuable advantage without cost is no reason why
it should also enjoy the privileges of freedom from taxes such
as are laid on other kinds of value.
Under the constitution, Congress has power to lay " direct
taxes," provided they are proportioned among the states ac-
cording to population. Five such taxes have actually been
laid, — one in 1798, three during the war of 1812, and one
in 1861 ; the first four acts made the assessment on slaves
and land, the act of 1861 on land alone. In 1861 eleven
states seceded from the Union and paid no part of the tax ;
hence on March 2, 1891, Congress by statute refunded the
$20,000,000 which had been paid by the remaining states. It
seems unlikely that Congress will again resort to a system of
taxation which bears hardest on the poorer states.
Since 1789 the United States has levied a duty on the ton-
nage of ships, which are also subject to tax by the states as
property. This duty ranges now from 3 to 6 cents per ton
for each entry into port, up to 15 or 30 cents per ton per
annum; it produces only about $500,000 a year. A similar
tax of 50 cents per ton for " light money " goes to the sup-
port of lighthouses.
A very common form of state and national taxation is for
licenses to carry on specified occupations. In some states,
hawkers, newsboys, and street musicians must be licensed;
§ 175] Direct and Corporation. 389
but the fee is small, and is intended only to keep the license-
holder in bounds. Licenses are also required by auctioneers,
insurance agents, brokers, commission merchants, inn-keepers,
telephone companies, and many other occupations ; in Missouri,
department stores are heavily taxed for licenses. The most
common subject of a license tax is the manufacture and sale
of liquors.
175. Assessment and Collection of Taxes. .
It is easier to classify taxes than to collect them : one of the
most serious problems of government is to find out what tax-
able property exists, to state its value, and then to collect the
tax that has been assessed ; and neither state nor nation is
absolutely free as to either the object or the rate of taxation.
The federal tax power is under serious limitations. The
purpose of taxation is defined by a clause in the federal con-
stitution that taxes may be laid " to pay the debts and to provide
for the common defence and general welfare." Congress can-
not tax state property, or (under the Pollock decision of 1895)
tax incomes from state securities ; it cannot tax the property
of local governments of any kind, because that is really state
property ; it can lay "■ no tax or duty ... on articles exported
from any state " ; and " all duties, imposts and excises shall
be uniform throughout the United States." These export and
uniformity clauses gave rise to the difficult questions as to the
taxation of dependencies decided in the Insular cases of 1901 :
the Supreme Court practically held that these two limitations
did not apply except to regions organized as states in the Union.
Many state constitutions prescribe that taxes shall be laid
only for public purposes, or that the annual state or municipal
tax rate shall not exceed a certain proportion of the whole
private property : in Texas, for example, only one half of one
per cent can be levied for state purposes. By the federal
constitution, the states are forbidden to lay either import or
export duties ; this means that they cannot lay any kind of
discriminating taxes on imported goods as such.
390 Taxation. [§ 175
Whenever, as frequently happens, the state and nation tax
the same thing, the United States always comes in first, if there
be any dispute. Under Supreme Court decisions, the states
cannot tax any national property or national securities, or the
income from national securities or national banks, though they
may tax bank property on the same footing as other property ;
and they cannot lay any tax on commerce from one state to
another, because Congress alone has power to " regulate com-
merce . . . among the several states."
One result of the various limitations on taxation is that it is
practically impossible either for states or for the nation to levy
any duties on the movement of persons and commodities from
one state to another; hence nowhere in the world, except
perhaps in the Russian empire, is there so large an area in
which there is absolutely free trade unfettered by protective
or revenue duties.
The problem of discovering taxable property is often per-
plexing. Real estate can hardly fail to be listed in any hon-
est system of assessment. Occasionally backwoods farms,
islands, or pockets of the mountains may escape notice ; but
in the cities, where the valuable real estate for the most part
lies, there are elaborate maps in which the parcels appear. It
is' possible to assess property to the wrong person, but the
remedy is easy : he may simply decline to pay the tax.
The discovery of personal property is usually attempted by
sending an elaborate list like that in the illustration, in which
the owners of property of many different kinds are required
under oath to set forth what they own. Furniture, books, per-
sonal effects, stocks of goods, carriages and other vehicles,
and draft animals, are not very difficult to find if assessors take
sufficient pains. To discover the amount and whereabouts of
evidences of property, — as notes of hand, mortgages, stocks
and bonds, especially shares in corporations, — is extremely
difficult, without such inquisitorial methods as are practically
out of the question in a democracy. In practice it is found
hard to get these descriptive lists back from tax-payers, and
Auditor's Form No. I.
SEE ASSESSORS' NOTICE ON THE BACK OF THIS SHEET.
Before commencing to Till out this Schedule, read carefully the INSTROCTIONS TO PERSON LISTIHO, ana the EXTRACTS
from the REVENUE LAW printed on the reverse of this Sheet.
,i Schedule of the nuTnbers, amounts, quantity and quality of all Personal Property in theposussion or under ihe
control of belonging to _ _,_
on the first day of April, 1002y as listed by of the Town of.
in the County of Cook, and State of lUinoiB.
Toun School District-- T.-
- Ji Village (or City) of-
^Q Be Filled b) Penon or Persons Requifed lo List Personal Property.
E
^
z
4
5 j 6
^J 1 S 1 3
Full Value
(asdei«rn)lncd
briseeseor).
W.
Full Fair 1 Qunlity and Quantity. DescrlpiioD, Memo-
Cash Value randa as to Quality, Face Value, Etc.
1
ITEMS OF PROPERTY.,
taxed by
1
I
3
4
6
6
8
9
10
H
12
13
14
16
16
1
3
4
6
9
10
11
\n
14
,15
lie
17
18
19
20
21
Horees of all ages, . . . . -
Cattle of aU ages,
Malesand ABsesof allages, . . • .
Sheep of all ages, - - - - -
Bogs of all ages, .....
Steam Engines including Boaers, -
Fire or Eniglar-Proof Safes, . . . -
Billiard, Pigeon-hole, Bagatelle, or other aimilar Tables
Carriages and 'Wagous of whatsoever kind,
Watches and Clocks,
EeiTing or Knitting Machinet, . . - -
Piano Fortes, .-.-..
Melodeons and Organs, . <> ■ • ■
Franchises, .--.-.
AnnnitieB and BojaltieB, . - . .
Patent Bights, ....
Steamboats. Sailing Vesselfl, Wliarf Eoata, Barges or
other Water Craft, . . - . -
Merchandise on hand, ....
Material and Manufactured Articles on hand.
Manufacturers' Tools, Implements and MacMnery
(other than Engines and Boilers, 'nhich are
listed as such), - • - ...
AgricTiltural Tools, Implements and Machinery,
Gold and Silver Plate and Plated Ware, -
■ ■■■
" ~
,
1
Yearly Groaa Income, $ _
"
17
18
19
20
71
1
Eting It. U limit u p« Spieiil Slittmit
22
23
24
24
25
26
Moneys of Bank, Banker, Broker or Stock Jobber,
Credits of Bank, Banker, Broker or fitock Jobber,
Moneys of other than Bank, Banker, Broker or Stock
Jobber, .... . .
Credits of other than Bank, Banker, Broker or Stock
Jobber,
Bonds and Stocks, .....
Shares of Capital Stock of Companies and Associa-
tions not Incorporated by the Laws of this State,
Pawnbrokers' Property, ....
Property of Companies and Corporationa other than
hereinbefore enumerated,
Bridge Property, - . . . .
Property of Saloons and Eating Houses, •
Household or OfBce Furniture and Property, -
luTestments in Eeal Estate and Improvements thereon
(see Sec. lOJ,
Grain on hand
Shares of Stock of State and National Banks
All other Personal Property required to be listed
Totals,
:z:::z
""
Face Value being $ - _.,..
Face Valne being $
Being Amount aa per Affidavit
26
27
28
29
30
31
52
33
34
36
35
2S
29
30
31
32
33
34
35
36
37
38
-
—
I do solemnly swear that the foregoing is a fall, complete and correct Schedule of all the personal property subject to taxation in the c
town, city, village aad sehool district above mentioned, owned by me, or controlled by jne as agent for.
en the first d»y of April, A. D. 1902. and which I am by law required to list; that the numbers, quantity, quality and amount of each item nc
listed are correctly stated; that the values of the several items of property, as by me stated (in culumu ^'o. 2), :.ro tbe fuU fair cash v:dues of the samr
OB I verily believe; that I have stated the full amount of my moneys and of my credits (less deductious aiiiLiorized bylaw), and that I have correotJ.v
Plated the full fair cash values, and the face values, of all bonds, etocta and shares of capital stock in cotnpaiiies or aaaoclations not incorporated! by
the laws of this State, by me owned or coutrolled.
(See Sec. 20, Act Approved Feb. 25, 1896.)
Subscribed and e
AN ASSESSMENT BLANK
§ 175] Assessment. 391
in such cases assessors commonly estimate the amount of per-
sonal property. In some states there is a penalty for failure
to make return ; sometimes assessors are authorized to guess
at the amount of property, and then to double their guess for
the schedule. In either case the tax-payer feels no responsi-
bility until the assessment reaches what he thinks an unreason-
able point, when he usually enters protest ; hence it is not
uncommon to keep raising the assessment of a man until he
" squeals."
The next great difficulty is properly to assess the value of
property when discovered. Real estate is subject to great
fluctuations both down and up : prosperous farms in New
England have been abandoned ; city property in Chicago
may go up from $ioo to ^1,000,000 an acre, but it is also
subject to depreciation by movements of trade and fashion.
Who shall estimate the changes of value ? The usual officials
are the assessors of the towns or counties or cities. In
most parts of the United States the assessorships are elec-
tive offices, with tenures of one year, or at best three years, so
that inexperienced men get in ; and the most skilful assessors
will make mistakes. In some large cities, notably Chicago,
the variations in real estate are often corruptly affected : some-
times a wealthy holder of real estate pays an agent a fixed
sum per year to keep his assessment down. Everywhere the
small man, the owner of a little home, the farmer with a defi-
nite number of acres, is likely to be relatively more heavily
taxed than the wealthy man.
Real estate is taxed where it lies ; but it is becoming more
common for wealthy holders of stocks and bonds to diminish
their taxes by acquiring residence where taxes are low, in
country houses or estates. In Massachusetts, taxes are assessed
on the first day of May, hence many people go away for the
summer on the 30th of April. Another method of dodging
personal taxes is by making temporary investments in govern-
ment bonds, and then selling them out after the assessment
has been made; or by putting property into the hands of
392 Taxation. [§ 17s
trustees resident in other states under a low rate of taxation j
or, more frequently, by simply ignoring the whole subject.
The usual principle of assessment is that property shall be
estimated at what it would bring in cash on a forced sale, which
is commonly from one third to three fourths of the selling
value which the owner would put upon it ; but in many places
the assessed value is very near the purchase price of new
property. Inasmuch as maiiy investors are glad to get 3 per
cent net on investments, a tax of 2 per cent or 2^ per cent
or 3 per cent on actual values must in the long run ruin the
owners, and thus destroy taxable values and deprive the com-
munity of one of the main incentives to saving.
Ohio in 1885 enacted a system of tax inquisition which
authorized two brothers to discover, in any way that they
could, property which had escaped a sufficient assessment, they
to have one quarter of all that they brought into the state
treasury. This extraordinary system resulted in the discovery
of some hundreds of thousands of dollars' worth of taxes that
had been overlooked ; but it was widely believed that many
delinquents came to terms by paying the inquisitors lump
sums which did not get into the treasury.
Small amounts of personal property are usually not taxable,
and certain property owners are legally exempt from all taxes.
In most states the real estate belonging to religious, educa-
tional, and charitable institutions is free of tax ; and in some
states invested funds belonging to such corporations are ex-
empt. This is not a universal principle : in California all the
colleges except the State University and Stanford University
are or may be taxed ; in New Hampshire church buildings
worth more than 1 10,000 are taxed. In some university
cities, such as Ithaca, New Haven, and Cambridge, the amount
of real estate thus exempt is considerable, and there is jealousy
of the institutions of learning because they have the free bene-
fit of streets and of police and fire protection. In Maine, the
state appropriates certain sums to the towns in which colleges
are situated, in recognition of this supposed loss. In Mas-
§ i7s] Collection. 393
sachusetts, the 194 towns which have no colleges show little
disposition to tax themselves more highly in order to relieve
the 6 unfortmiate places which have colleges in their midst.
The work of assessors is entered upon a book commonly
known as the "tax-duplicate," which should show not only the
taxed property but also the exempted property. The rate of
taxation is found by dividing the amount necessary to raise by
the total of assessable property. There may be two, or even
three or four, kinds of taxes in the duplicate. The state tax is
commonly not more than ^ per cent to ^ per cent on the
assessed valuation ; the town or city tax in some communities
is as much as 2^ per cent on the valuation ; in addition, there
may be county taxes, school taxes, and special assessments
for sewers, waterworks, and other improvements.
A peculiar form of tax is the so-called " betterment tax."
If a new street is laid out, for instance, the real estate in the
neighborhood may have assessed upon it a part of the cost in
proportion to the supposed benefit. These sums are not
strictly taxes, but for convenience are assessed and paid with
the real taxes.
The ordinary method is to have all these taxes combined in
one annual bill, which is payable in either one or two instal-
ments. This combined system sometimes makes very high
rates of taxes: in Cleveland, for instance, in 1901, the tax
rate was 3 per cent; in Boston a total of 1.6 per cent was
thought extravagant ; and in some New England country
towns the rate was as low as | per cent, or ^5 on the
thousand.
When tax bills are rendered, the next difficulty is to collect
them. If proper care is taken, land taxes will be collected,
through the wholesome system which makes taxes a first lien
upon real estate, supplemented in most states by charges for
interest after fixed days. Personal property, however, may
change hands or be taken out of the state before any tax is
collected ; and, unless the tax-payer is also a real-estate
owner, he may move away and cannot be found. Delinquent
394 Taxation. [§ 176
taxes, therefore, accumulate wherever much reliance is placed
upon personal taxes; and in some places officials let them
run because they get special fees for the collection of de-
linquencies.
License taxes are paid at the time the licenses are taken
out, and those who neglect this form of tax are subject to
arrest for attempting to carry on a trade without the requisite
permission. Federal tonnage taxes are laid on vessels in
harbor, which cannot legally leave port till the taxes are
paid. The direct tax on the states proved very slow of
collection, and arrears kept dropping in for years after the
tax had ceased.
The most serious defects in the American tax system are as
follows: — (i) The reliance on personal taxes, which never
can be properly and impartially assessed. In repeated in-
stances, a personal estate assessed at $1,000,000 or $2,000,000
has proved on the death of the holder to be subject to a suc-
cession tax on $20,000,000 or $30,000,000. (2) The in-
equality of assessment, which results partly from lack of a
proper system of state assessors not subject to local influence,
and partly from the inherent difficulty of knowing the real
value of changeable property. (3) The multiplicity of state
and local taxes, with the result that some callings and indi-
viduals carry disproportionate loads of tax. The fair and
thorough collection of taxes is always easier in the so-called
" indirect " taxes on consumption.
176. History of the Tariff.
Two forms of indirect tax, import duties and internal
revenue, are the main sources of federal income. The import
duties have been the more productive, and are also impor-
tant because they involve protection to domestic industries.
Within the colonies, small duties on imports were laid by the
British government, and somewhat larger duties were laid by
the colonies themselves. Immediately after the Revolution
the states began to lay import duties each for itself; and two
§ 176] History of the Tariff. 395
constitutional amendments to the Articles of Confederation,
intended to give Congress also power to lay liglit duties for
national purposes, failed of ratification. Between 1783 and
1788 three states, Massachusetts, New York, and Pennsylva-
nia, framed general tariffs intended to discriminate against the
products not only of foreign countries but of other states.
The result was confusion and interstate jealousy.
The Federal Convention in 1787 completely withdrew from
the states all control over import duties, except over inspection
duties levied with the consent of Congress. From the begin-
ning it was expected that this exclusive power of taxation
would furnish the United States with the greater part of its
revenue, and that expectation has been justified. In the first
full year, 1792, the customs produced $3,500,000; in 1808,
;^ 1 6,000,000 ; in 1 8 16, just after the War of 181 2, $36,000,000,
a figure which was not reached again till 1850; in 1866 the
war tariff produced $179,000,000; in 1902 the customs paid
$254,000,000, the highest amount in the whole history of the
country in any one year.
Customs tariffs are made by acts of Congress, although
they may be modified by treaties duly ratified by a two-thirds
vote of the Senate. Scores of acts have been passed on the
assessment and collection of tariff duties and the organization
of the customs service ; but the so-called " tariff acts " have
been those which involved a complete revision of the previous
classification and rates. The first of these statutes was the
act of 1789, which was intended to be protective, although
the highest rate of duty was not above 15 per cent. In 1816
a distinctly protective tariff was set up, intended to sustain the
young manufactures, especially of cotton and wool. In 1824
the duties were somewhat increased. In 1828, under the so-
called " tariff of abominations " the duties were raised to a
hitherto unexampled height, reaching in some cases 45 per
cent. In 1832 duties were somewhat reduced, but the tariff
system was continued. This led to the Nullification contro-
versy with South Carolina, and in 1833 the Compromise
39^ Taxation. [§176
Tariff provided for the gradual reduction of duties to a 20 per
cent basis. In 1842 the tariff was increased for revenue pur-
poses. In 1846 the lowest scale of duties was adopted that
had been known since 1816, and these duties were a little
lowered under a revision of 1857. Then set in a current of
protection, resulting in the tariff of 1861, repeatedly modi-
fied by later war duties; gradually after 1866 many parts of
the war tariff were struck off. In 1883 there was a general
revision of the^ tariff, which was intended to lower the duties,
but really raised them. In 1890 the McKinley Tariff raised
duties to the highest figure experienced up to that time. In
1894 the Wilson- Gorman Tariff, while still highly protective,
considerably reduced duties. In 1897 the Dingley Tariff again
increased duties, in many cases above the McKinley rate.
It is difficult to know precisely what the protective effect of
Ek tariff may be, because all the recent tariffs include many
compound duties, — that is, duties made up in part of a
specified rate (so much a pound or a yard), and in part of an
ad valorem rate (so much on each dollar's worth of goods) .
For instance, the Dingley tariff on velvets is 1 1.50 per pound,
plus 1 5 per cent ad valorem ; on clothing, 44 cents per
pound, plus 60 per cent ad valorem; on hats, from $2 to
$.^ per dozen, according to quality, plus 20 per cent ad
valorem. Leaving out of account the free list, and compar-
ing the receipts from duties with the total value of dutiable
imports, the average rate of duty in 1841 was about 23 per
cent; in 1847, 22^ per cent; in i86o, 19 per cent; in 1868,
50 per cent; in 1882, 44 per cent; in 1891, 47 per cent; in
1 90 1, 50 per cent. These average figures are much under
some rates of duty : on carpets the present duties are about
80 percent; on blankets, about 100 percent; on potatoes,
about 70 per cent. Many duties are so high as to prevent
importation altogether, so that there are no figures from which
to calculate the effect.
No act is more difficult to draw up than a tariff, because
of the great number of interests affected. Until about 1846
§ 176] History of the Tariff. 397
the tariffs were usually made by special committees ; there-
after by standing committees, in which the minorities were
represented. The tariff of 1883 was framed by a special
commission, but was very much altered as it went through the
process of enactment. Since that time the tariffs have been
made by the majority members of the Ways and Means
Committee without consultation with the minority members,
and usually take the name of the chairmen of that committee,
as the McKinley Tariff, the Wilson Tariff. Sometimes, while
the Ways and Means Committee is at work, the Senate man-
agers also prepare a bill, to be substituted when the House
bill appears. The committees of both houses commonly
hold public hearings, and also confer with representatives
of the interests affected; and in some cases manufacturers
prepare parts of the text of the bill, which are afterwards
incorporated. Consumers and importers are usually not en-
couraged to appear before, committees.
On the three last general tariffs of 1890, 1894, and 1897,
there was little genuine debate in the House. Hundreds of
amendments were filed, but no vote could be reached upon
them, because a tariff is a delicate adjustment between con-
flicting interests, and to strike out a duty here and add
another there may raise up unexpected elements of opposition.
The Senate cuts and slashes the House tariff bill, usually in the
direction of increase of duties. The differences between the
two houses are then submitted to a conference committee,
and that body of six men practically frames the final tariff,
often inserting items which have been approved by neither
house. The work of the conference committee is then accepted
by both houses, and thus a new tariff comes into being.
No tariff is long satisfactory, even to its friends : changes in
the methods of doing business alter the effect of the act ;
and the tariff cannot make everybody prosperous. »For in-
stance, the discovery of a new process for making steel in
the sixties revolutionized the making of rails and structural
iron, so that the old tariff did not correspond to the situation.
398
Taxation.
[§177
There is no magical power in a tariff to compel buyers to pur-
chase, and the high rate of duty which cuts off the importation
of a foreign article may raise the price to such a point that
consumers find a substitute : thus, the very high rate on
woollen cloths since 1890 has led to a much wider use of
cheap woollens with admixture of cotton and shoddy. Hence,
as soon as a tariff is fairly passed, appeals are made to modify
it, not only from those who wish to reduce the rates, but from
the protected manufacturers who find themselves disappointed.
Since 1883, Congress has been chary of tariff bills dealing
with partial fields, because to alter one part of the tariff may
bring on a general tariff discussion.
The following table shows the value of some of the principal
articles imported during the fiscal year ending June 30, 1901,
the duty on them, and the percentage of duty, arranged in
order of magnitude of the duty collected :
Article.
Value.
Amount
of duty.
Per cent
of duty.
Sugar and molasses
Cotton manufactures
Wool and manufactures of . . .
Tobacco and manufactures of . .
Silk manufactures
Fibres and manufactures of . .
Liquors .........
Iron and steel and manufactures of
Leathers and manufactures of . .
Hides of cattle
Jewelry and precious stones . .
8587,004,000
39,774,000
30,727,000
15,056,000
26,836,000
34.637)000
13,028,000
18,319,000
11,682,000
14,872,000
16,490,000
663,022,000
21,827,000
21,575,000
16,656,000
14,246,000
12,908,000
9,121 ,000
6,988,000
4,104,000
2,231,000
2,143,000
177. Administration of the Tariff.
In practice, the workings of a tariff depend very much on
its administrative features, which come too little into public
attention. At the head of the system is the secretary of the
treasury, who, more than any other member of the cabinet, is
subject to definite and specific acts of Congress. One of the
assistant secretaries is in general charge of the customs depart-
ment. The whole country is divided into about 120 collec-
tion districts, in each of which there is a collector; some of
§177] Administration of the Tariff. 399
them have surveyors, and 6 have each a third official, known
as the "naval officer," although he is simply the head of the
accounting department. Subordinate to the collector are the
surveyor, the appraisers, and a staff of clerks, examiners, in-
spectors, watchmen, storekeepers, and the like.
The 120 districts differ much in the importance of their
business. The port of New York receives about two thirds
of all the imports, and the ports of Boston, New York, Phila-
delphia, Baltimore, New Orleans, and San Francisco do about
nine tenths of all the business. The port of Annapolis, Mary-
land, in 1 89 1 collected ^43.50, at an expense of about $1,000 ;
the port of Burlington, New Jersey, collected $1.25, at a cost
of about $200 ; the port of Cherry Stone, Virginia, collected
nothing at all, at a cost of over $2,000. Such small districts
ought to be consolidated with the neighboring districts ; but it
is difficult to bring about the discontinuance of a United States
office. In the large ports the collectors are paid by salary,
the highest being $12,000 to the collector of New York ; in
the small districts, they have fees and small salaries.
Two systems of levying duties have prevailed from the
beginning of the government, — the specific (so much a
pound, yard, or dozen), and the ad valorem (so much on
each dollar's worth of goods). The advantage of the specific
system is that it is simple and easily administered : you have
but to weigh and count and your task is done. On the other
hand, the specific duty always rises as goods become cheaper :
a duty of $6 per ton on steel rails would be about 15 per cent
when rails were $40 a ton, but it would be 30 per cent when
they fell to $20 a ton.
The ad valorem duty, while more stable, is a constant in-
citement to fraud : if the dutiable value can be understated,
the duty is lowered by that much. Even where there is no
fraud, it is customary for heavy importers to have houses on
both sides of the Atlantic : Jonas Brothers in Nuremberg ship
toys to Jonas Brothers in New York, and make the invoices on
which values are calculated, without including the profit.
400 Taxation. [§ 177
To counteract this tendency Congress has made many stat-
utes, the most effective of which was passed October i, 1890,
separately from, though during the same session as, the Mc-
Kinley Tariff, and amended in 1897 ; it is known as the
Administrative Tariff Bill. This act provides that goods must
be billed at the " customary market rates " in the place where
they are produced or ordinarily sold abroad, and that the
invoices must be certified by an American consul. Such cer-
tification, long a part of the system, is almost always a matter
of form, and does not protect the government. Every vessel
arriving in an American port must have a " manifest," showing
every article of the cargo ; and the importer must send to the
government duplicates of the invoices for his goods. It then
falls to the appraiser's office in each port to examine the
goods, to see that they correspond with the invoices in quan-
tity and quality, and that they are stated at their true values.
The appraiser's work is the most delicate in the whole sys-
tem. By the act of 1890 was created a body of general
appraisers, drawing salaries of ^7,000 a year. A board made
up of three of these appraisers has a final decision on the
value of imported goods : from them no appeal can be taken,
either to the secretary of the treasury or to the courts. Next
comes the question in what category of the tariff act the goods
shall be placed. Notwithstanding the hundreds of items in
tariff acts, articles are frequently imported which are not dis-
tinctly mentioned in them. What is a flying machine, for
instance ? Is it personal baggage, or a carriage or a tool of
trade ? or is it a manufacture of steel, or a manufacture com-
posed partly of steel and partly of silk? Such questions are
decided by a board of three of the appraisers, but with an
appeal to the courts. Importers frequently pay duties under
protest, and bring suit against the government for refunds,
on the ground of wrong classification ; they have sometimes
recovered millions of dollars by such suits.
Passengers arriving at a port are entitled to carry their
personal possessions through the custom-house by a much
§ 1 78] Appraisal. 401
shorter and more expeditious process. Before landing, the
passenger makes a declaration of the dutiable goods in his
possession; on reaching the docks his trunks are examined,
and he pays duty on what he^ has declared ; if other dutiable
goods are found, they may be seized if there seems to have
been an attempt to smuggle them, or he simply pays the duty.
There are many annoyances incident to this examination, and
many charges that inspectors accept bribes for passing bag-
gage. For many years passengers were allowed to bring with
them wearing-apparel " appropriate for the purposes of their
journey and present comfort and convenience " ; by the
Dingley Act of 1897 the value of such clothing is limited to
$100 in case of returning residents of the United States.
There is no reason why passengers should have any greater
immunity than other importers ; and the Treasury has by
recent orders attempted to put an end to evasions and fraud,
by holding that the ^100 worth of free goods may include
small purchases other than clothing ; those orders, however,
have been held invalid by a recent decision of the Board of
General Appraisers.
178. Excise and Internal Revenue.
In most governments of the world, malt and spirituous
liquors and tobacco are among the important objects of taxa-
tion, because they are abundant, widely diffused, easy to reach,
and are either counted among luxuries or discouraged as harm-
■ ful. Imported wines and liquors of high cost are also subject
to tax as luxuries used chiefly by the rich, and are productive
of large revenue ; hence most tariffs, among them that of the
United States, have high duties on the importation of alcoholic
beverages and tobacco.
The actual cost of crude spirits, especially with modern
scientific apparatus, is not more than 25 cents a gallon ; peach
brandy, apple-jack, and rough corn whiskey may easily be
manufactured by farmers and others with inexpensive appa-
ratus, and were so manufactured in considerable quantities in
26
402 Taxation. [§ 178
colonial times. What more apt and convenient source of
taxation than on the manufacture and sale of such liquors,
and of the milder malt liquors and wines? During the Con-
federation, several states, especially Pennsylvania, laid such
a tax.
By the constitution. Congress had specific power to lay
" excises," and it was part of the financial scheme of Alexan-
der Hamilton to frame a whiskey tax for federal purposes.
By act of March 3, 1791, the first federal excise was laid, in
the form of a tax of from 9 to 30 cents a gallon on the manu-
facture of distilled liquors, or a yearly tax of 60 cents per
gallon capacity on small country stills. This tax was very
unpopular, and required disagreeable methods of collection ;
and it cost about one fifth of its gross amount to collect it.
In 1794 popular opposition in Western Pennsylvania led to
the so-called "Whiskey RebeUion."
The tax was never so productive as had been hoped,
although in 1800 it brought in ^1,000,000. Jefferson's first
Congress repealed it in 1802. In 1813 it was revived, to-
gether with a license tax on retail dealers ; and it produced
$15,000,000 during the four years that it was levied. In
1862 it was a third time introduced, and has ever since been
a part of the revenue system.
The excise has not been repealed, both because it is pro-
ductive and because it is evident that repeal would so cheapen
liquor as greatly to increase its use. Since 1890 it has almost
equalled the receipts from customs ; and during the three
fiscal years of the Spanish War tax, 1 899-1 901, it averaged
about $300,000,000, or $70,000,000 a year more than the
customs ; of this amount $108,000,000 came from spirits,
$58,000,000 from tobacco, $73,000,000 from fermented liquors.
In 1 86 1 it cost about 24 cents a gallon to make untaxed
whiskey; in 1865 the tax was $2 a gallon, producing about
$16,000,000; in 1868 the duty was lowered to 50 cents a
gallon, and in two years the proceeds rose to $55,000,000.
The reason was that the high duty gave an impetus to illicit
§ 178] Excise and Internal Revenue. 403
and fraudulent distillation : even under the present low duty
there are numberless stills in the mountain regions of the
South, where " moonshine whiskey " is made. At present
the rate of tax on beer is $1.00 per barrel; on spirits, ^i.io
per gallon ; on prepared tobacco, 6 cents per pound ; and on
cigars and cigarettes, 54 cents to ^3.00 per thousand.
Classed in the government reports with internal revenue
are various other forms of taxes. In 1794 Congress laid a
carriage tax of from $2 to $15 ; and in the case of Hylton v.
United States the Supreme Court held that the tax was con-
stitutional, because an indirect tax. In the same year taxes
were laid on the manufacture of sugar, snuff, and on retail
sales of spirituous liquor. In 1798 began stamp taxes on legal
instruments. All these taxes were repealed in 1802, but
nearly all of them were again imposed in 18x3, ceased in
181 7, and were laid for the third time in 1862. By a series
of acts during the Civil War, Congress tried to reach every
kind of manufacture and of trade : licenses were required for
all sorts of pursuits ; a stamp tax was laid on almost every
written evidence of commercial transaction; and these taxes
were especially productive in the two or three years after the
war closed. Gradually most of such taxes were removed:
the two-cent duty on bank checks was repealed in 1883, but
four years later a new form of tax was laid on the production
of oleomargarine. In 1898, when the Spanish War broke out,
many of these taxes were again imposed, including the tax on
bank checks; but in 1901-1902 all the stamp duties and
other war taxes were withdrawn.
Since the Civil War, the normal national revenue in the
United States has been made up of about one half customs
receipts and one half internal taxes on alcoholic beverages
and tobacco. In time of war or other financial stress, the
government resorts to a great variety of manufacturing, license,
and stamp taxes ; but people do not like them because they
are an inconvenience as well as a money sacrifice, and Con-
gress hastens to withdraw them as soon as possible.
404 Taxation. [§ 179
An additional tax is placed upon the liquor business by
United States licenses, which are required from both wholesale
and retail dealers, and range from $200 to ^20 a year. Even
where states prohibit the sale of liquor altogether, dealers take
out United States licenses. In most states there are likewise
state or local taxes on all dealers, such annual taxes varying
from a few dollars up to $2,500 in New York City. Some-
times these taxes are assigned to the city government, and
form a considerable item in the year's receipts ; but no Amer-
ican state has gone to the length of the Swiss constitution,
which provides for a liquor tax, a part of the proceeds of
which shall be spent in combating the evils of intemperance.
179. Amount and Incidence of Taxation.
Although the kinds of taxation and the methods of their
distribution much affect the welfare and productiveness of
the country, and although plenty of people find it hard to
raise the money to pay taxes, yet the United States is by far
the lightest-taxed of all great countries. One reason is that
almost the whole burden of taxation is indirect : the happy
possessor of a new suit of clothes, the laborer puffing at his
pipe, is paying a part of the tax in the higher price on his
purchase. Yet the total burden of national expenditures in
1901 was only $6.56 per head of the population, while the
burden in France was $17 per head; in England, $19.18; in
Germany, $12.
This comparison is misleading, because in those three coun-
tries a large part of the local expenditures are borne out of
the national treasury. For an accurate idea of the burden of
taxation in the United States, we must add the taxes laid
by states, counties, cities, boroughs, towns, school districts,
sewer districts, and other subdivisions. This difficult task,
involving the assembling of the reports of forty-five states,
four territories, 1,000 organized cities and villages, perhaps
2,800 counties, and several thousand towns, is being done for
a supplementary volume of the last census.
§ 179] Amount and Incidence. 405
The state tax is almost everywhere the lightest item, often
not more than a dollar or two per head of the population.
In 1 90 1 the New York State tax was about 94 cents per
head : the South Carolina tax about 70 cents. Local taxes
vary enormously : Boston, with 600,000 people, pays about
^20,000,000 of annual tax, an average of about ^35 per head ;
Greater New York, with about 3,500,000, pays ;^ 100,000,000,
or I30 per head ; in some of the Southern and Southwestern
states, the local tax is not more than half a dollar a head
annually. Mr. Edward Atkinson estimates that the average
state and local tax is about equal to the national tax, making
a total average tax of about ^14 per head of the population.
Comparing this with the taxes of England, Germany, and
France, it will be seen that our total governmental burden
does not equal the average of national taxation alone in these
European states. At the same time the United States is a
very prosperous nation, with an annuaf product twice as great
per capita as in Germany, and the tax does not take up more
than one fourth of the annual national savings ; while in some
parts of Italy the tax-gatherer gets in cash more than a fourth
of the gross money income, to say nothing of savings. This
comparative lightness of taxation is one of the reasons for the
great commercial activity in America.
The question just who pays the taxes in the long run is puz-
zling to skilled economists. Plainly, the owner of rented land
and buildings expects his rent to cover both interest and taxes ;
so that the occupant who owns no landed property cannot
help paying a tax on land. The importer of merchandise and
the brewer of beer redistribute the taxes which they pay, by
adding to their selling price. The holder of a mortgage
covenants with the mortgagee to pay the tax, or else he adds
enough to the rate of interest to make himself good. In
the long run, taxes are widely distributed, but are apt to fall
with most severity upon the poorer part of the population :
(i) because, if they have taxable property, they cannot hi^le
their little house, work-animals, or savings-bank deposits;
4o6 Taxation. [§ 179
(2) because they pay most of the tax unconsciously through
increased prices; (3) because there are so many more of
them that their gross burden is vastly greater than that of
well-to-do people. The inequality of taxation is enhanced
by the greater ease with which the rich man may change his
residence or form of investment, to avoid heavy taxation. A
large part of the national taxes fall on the middle classes in
America, — on professional men and women, teachers, and
the higher artisans. A family with an income of $2,000 a
year, paying taxes on a house assessed at $5,000, pays from
$50 to $150 a year outright on real estate, and anywhere from
$100 to $300 by the indirect effect of local and national taxes.
Taxation is the price which civihzed communities pay for
the opportunity of remaining civilized. If the whole twelve
or fifteen hundred millions of dollars raised annually in taxes in
the United States were every year thrown into the sea, the
country could well bear the loss, if it still had peace and good
order : a year of civil war would cost more than ten years
of peace taxation. A large part of the money from taxes
goes into direct protection of society, — into police, firemen,
militia, the army and navy ; a part into indirect protection,
such as education and the improvement of the community.
A part goes into permanent buildings and improvements ; a
large part goes into salaries of people who keep the accounts ;
and a considerable fraction, probably from one third to one
fourth of the whole amount, goes without any return, because
spent injudiciously or extravagantly, — a waste which is so
much subtracted from the productive powers of the nation.
Nevertheless, as yet only a small fraction of the total earnings,
or even of the total savings, of the people is absorbed in
government expenditures which confer no benefit on the
community.
CHAPTER XXII.
PUBLIC FINANCE.
180. References.
Bibliography: D. R. Dewey, Financial Hist, of the U. S. (1915),
Suggestions, and §§ 26, 33, 53, 126, 141, 202, 215; Macy and Gannaway,
Comparative Free Govt. (1915), 722 (cases); A. B. Hart, Manual (1908),
§§ 117, 118, 148, 220, 221; Cyclop, of Am. Govt. (1914), I, 63, 485, 551,
693; II, s, 8, 10; III, 90; W. B. Munro, Bibl. of Municipal Govt. (1915),
§§ 70, 74-76; E. McClain, Constitutional Law (1910), § 80; Channing,
Hart, and Turner, Guide (1912), §§ 177, 182, 194, 206-208, 213, 220,
237, 243, 252, 254, 262, 271. See also references in ch. xxi above.
Financial Administration: E. McClain, Constitutional Law (1910),
§§ 81, 82; A. B. Hart, National Ideals (1907), ch. xv; F. J. Goodnow,
Administrative Law (1905), 449-457; J. A. Fairlie, Municipal Adminis-
tration (1901), chs. xiii, XV, xvi; J. H. Hollander, Studies in State Tax-
ation (1900); D. Kinley, Independent Treasury (1910); E. G. Bourne,
Surplus Revenue (1885); Cyclop, of Am. Govt. (1914), Arts, on Appro-
priations, American System of; Budgets, Federal; Budgets, State and
Local; Cost of Governments in the U. S.; Expenditures, Federal;
Expenditures, State and Local; Fees and the Fee System; Finance,
Local Systems of; Finance, State Systems of; Financial Pohcy of the
U. S.; Financial Powers, Constitutional Basis of; Financial Statistics;
Public Accounts; W. B. Munro, Municipal Administration (1916),
ch. x; H. J. Ford, Cost of our National Govt. (1910); C. C. Plehn, Public
Finance (3d ed., 1909), pt. i; J. B. PhilUps, Methods of Keeping the Public
Money (1900); H. C. Adams, Am. War Financiering {Pol. Sci. Quar.,
I, 349-385, 1886); W. G. Sumner, Financier and Finances of the Revo-
lution (1891); H. C. Lodge, Alexander Hamilton (1900), chs. v, vi;
J. A. Stevens, Albert Gallatin (1900), ch. vi; W. G. Sumner, Andrew
Jackson (1900), chs. viii, x, xi; A. B. Hart, Salmon P. Chase (1900),
chs. ix, xi, xv; J. Sherman, Recollections (1895), chs. xxiv-xxvii, xxx. —
Sources: P. S. Reinsch, Readings on Anr. Federal Govt. (1909), ch. viii.
Public Debts: A. D. Noyes, Forty Years of Am. Finance (1909);
J. W. Kearny, Sketch of American Finances (1887); W. F, DeKnight,
History of the Currency and Loans (2d ed., 1900); C. C. Plehn, Public
Finance (3d ed., 1909), pt. iii; Cyclop, of Am. Govt. (1914), Arts, on
Debt, Public, Administration of; Debt, Public, Interest on; Debt,
Public, Principles of; Debt, Pubhc, Redemption of; Debt, Public,
407
4o8 'Public Finance [§ i8i
Repudiation of; W. A. Scott, Repudiation of State Debts (1893); J. A.
Fairlie, Municipal Administration (1901), ch. xiv; U. S. Census Bureau,
Report on Wealth, Debt, and Taxation, igij (1915)-
181. Public Property.
Although the governments in the United States are the
heaviest real-estate owners, their holdings are with few excep-
tions unproductive, and of course pay no taxes. The public
lands are held only until somebody comes along who wants to
buy them ; national, state, municipal, and local parks yield no
revenue, and are a constant source of expense. Almost the
only revenue-producing public properties are the docks in a
few cities, and the water-works, gas-works, and electric sys-
tems of cities which own their own plants. State and national
forests properly managed may also eventually become a source
of moderate revenue. South Carolina has a state monopoly
of the liquor business.
Like a corporation, a prudent government must keep a
working balance of money in hand. The United States has
repeatedly seen that balance grow against its will, and various
means have been adopted for getting it out of the vaults and
into circulation. From 1791 to 1836 (with the exception of
the years 1811— 1816), the national balances were deposited
chiefly in the Bank of the United States; from 1833 to 1841,
in selected state banks; from 1841 to 1862, in the vaults of
the government. Since 1862 some parts of the balance have
been kept in national banks, the greater portion in the custody
of the treasury. The highest annual accumulation of surplus
was $146,000,000 in 1882. Although political favor always
plays some part in the selection of banks of deposit, it does
not appear that any officer of the United States has ever prof-
ited by placing public deposits.
State, county, and municipal balances are, however, fre-
quently deposited in banks, on an agreement that the treasurer
or other custodian shall receive interest for his private profit ;
and heavy losses have many times occurred because the treas-
§ i8t] Public Property. 409
urer chose the bank that would promise large interest in-
stead of large safety. If any advantage is to be got out of
public deposits, it ought to go to the public ; state and county
treasurers ought to have salaries adequate for their duties, so
that there should be no excuse for this dangerous practice.
Cases have been known where the school-teachers of a state
went unpaid for months, in order that the state treasurer might
draw interest on money that really belonged to them.
The general government and the state governments always
own considerable amounts of military and other materials and
supplies ; and the federal government owns the ships of war,
often costing millions of dollars each. Some cities own float-
ing fire-engines, and transfer and ferry boats. The furniture
of schoolhouses and other public buildings, and the fittings of
state institutions, are either state or municipal property. The
federal government has a searching system of record of its
property, and loses comparatively little. States and munici-
palities are more careless, especially in the sale of disused
materials, and sometimes are subjected to gross frauds. An
instance during the Spanish War was the sale, by some state
officials, of military clothing belonging to the state for $40,000,
and its repurchase on state account for over $100,000. The
various governments frequently own working animals, from the
army mule to the powerful fire-engine horse.
A few cities have attempted to acquire the street-car lines
within their borders ; and, although none have yet succeeded,
the cities of Boston and New York have constructed costly
subways, which remain the property of the city and are leased
to operating companies. For nearly forty years the United
States owned mortgages in certain Pacific railroads ; and many
states in early days either built or took stock in canals and
railroads, and a few relics of such ownership still exist. The
United States is about to begin the construction of a canal
across the American isthmus, which will remain national prop-
erty. It has been too common for local governments of every
kind — cities, towns, and counties — to give or lend money
41 o Public Finance. [§182
to railroads which were to run through their boundaries ; hence
many of the state constitutions absolutely prohibit the use of
public credit in any form for such enterprises. In 1873 Cin-
cinnati got round a prohibition of this kind by building the
Cincinnati Southern Railway, in which the municipality is the
sole owner, at a prime cost of about $19,000,000.
182. Public Budgets.
Three systems of public finance have prevailed in the history
of the world : —
(i) The Asiatic system, reaching from Babylonia down to
modern Turkey : the government takes everything that it can
lay its hands upon without crippling the country and leaving
it unable to furnish taxes the next year ; and the money is
then all spent by somebody.
(2) A method that is best exemplified by the English
system : the chancellor of the exchequer calculates beforehand
the necessary expenditures of the government, which are
usually so steady that he can come very close to the actual sums ;
he then calculates the revenue, and if it comes to less or more
than the probable outgo, he adds to or diminishes a small elastic
tax on incomes. This is the method universally adopted by cor-
porations and private institutions which serve public purposes,
and is substantially followed by American states and cities.
(3) A method that proceeds from the other end on : it
provides revenues without any special reference to the needs
of the country, and then considers ways of spending money to
balance those revenues. This system, almost unexampled in
history, is followed by the federal government of the United
States, and is one of the weakest parts of all American gov-
ernment. It has arisen because the tariffs are framed with a
view, not so much to stimulate imports and thus increase the
revenues, as to reduce the import of dutiable goods for pro-
tection to American industries. Every tariff from 1789 down
has expected that many importations would continue, even
under high rates of duty. The wealthy man who wants
§ i82] Public Budgets. 411
champagne or a modern picture or a London hat will have it
no matter what the duty is ; and on more common articles
the duty must leave some opportunity for importation, because
a large customs revenue is essential to the government ; but
nobody can ever predict beforehand just what the result of a
new tariff will be, and customs receipts are subject to great
variations according to the prosperity of the country.
A panic invariably cuts down customs receipts : for example,
in 1836 customs brought in $23,000,000; in 1837, ;^i 1,000,-
000; in 1872, $216,000,000; in 1874, $163,000,000. The
excise duties are much steadier, but still they vary unaccount-
ably from year to year : they brought in $167,000,000 in 1893,
and $147,000,000 in 1894. Furthermore, neither the cus-
toms revenue nor the internal revenue is elastic, for neither
can be altered without long-continued and violent political
debates. Hence our national revenue is fluctuating, and bears
but little direct relation to the needs of the government.
Four times in its history has the United States accumulated
a surplus out of taxes — in 1 801-1808 to the amount of
$43,000,000; in 1816-1819, about $34,000,000; in 1822-
1836, about $139,000,000 ; in 1866-1893, about $1,881,000,-
000. In every case except the year 1836 the balance went
to reduce the public debt, or to provide a reserve to protect
circulating forms of that debt. During all these periods of
debt reduction, the government was hampered by the neces-
sity of buying back its own bonds at a premium.
The outgo of the government is affected whenever more
money accumulates than is needed. The country in general
does not like to see balances accumulate in the treasury; it
therefore permitted the payment of $20,000,000 of direct tax
.back to the states in 1891, favored the dependent and private
pension bills in 1890, and in 1886 came near adopting a
scheme for spending $77,000,000 on education in the states.
In England the whole outgo of the government is combined
in one statement, for which the chancellor of the exchequer
and the whole ministry are responsible. In the United States
412 Public Finance. [§182
the secretary of the treasury makes estimates, but the actual
expenditures are authorized by bills introduced by half a dozen
different committees. Of late years the Speaker of the House
has become an untitled chancellor of the exchequer, and in-
sists that the total expenditures shall bear some relation to the
money likely to be in hand. Leaving out of account special
war expenditures, the national expenses were in the decade
from 1880 to 1890 about ^250,000,000 a year, and in the
next decade about $350,000,000 a year.
The whole budget system is much disturbed by the practice of
borrowing for current expenses. In 1890 the national revenue
was $105,000,000 more than the ordinary expenses; in 1894
it was $70,000,000 less than the ordinary expenses ; and in the
six years 1894-1899 the government ran behind about $280,-
000,000. As Congress was unwilling to lay new taxes, there
was no resource but to borrow money, although it is humiliating
for a wealthy people not to pay its bills from year to year.
The expenditures of the states are usually very definite, and
do not vary seriously from one year to another. Interest and
sinking-fund, support of public institutions and of the state
civil service, additions to public buildings, state expenditure
for education, — these are the chief outgoes. Heavy expendi-
tures, such as the construction of a new state capitol, are
ordinarily provided for by an issue of state debt. On the
other hand, the occasional income of a state from fees, interest,
licenses, and the like is easy to estimate ; corporation taxes
and other large fixed taxes are tolerably steady ; and the com-
mon method is to add all these items of revenue, and then
to lay a special state tax on land sufficient to meet the balance.
For instance, in 1895 the state of Massachusetts had a corpora-
tion tax of $3,600,000, bank taxes of $2,000,000, a collateral
legacy of $420,000, liquor licenses of about $700,000 ; various
smaller items brought the amount up to $8,500,000, and the
state then laid a land tax of $1,500,000.
The state debts are almost always incurred for large and
permanent improvements. The municipalities have a way of
§182] Public Budgets. 413
borrowing for the construction of new buildings ; this increases
the interest charge, and eventually the city has to pay the
principal out of taxes, as it might have done at first. It is
therefore almost impossible to say off-hand whether a city is or
is not raising every year money enough for its normal expen-
ditures. Another difficulty, found only in state and local
governments, is that the constitution frequently prescribes a
maximum rate of taxation, but allows change of assessments ;
hence, if a city must have more money, it is likely to screw
up the valuation and thereby increase the taxes, though the
apparent rate may be diminished. Greater New York in 1903
raised the valuation from ^6,595,000,000 to ^9,176,000,000.
BUDGET OF THE TREASURER OF PENNSYLVANIA FOR THE
FISCAL YEAR 1901-1902.
Revenue. Expenditures.
Land $5,000 Legislative department . . . $19,250
Tax on stock 5,991,000 Executive departments . . . 500,200
Tax on receipts, incomes, and Executive boards 235,850
premiums 1,839,000 Judiciary 742,900
'Tax on loans 1,350,000 Public printing ...... 300,000
Tax on personal property . . 700,000 Grounds and buildings . . . 69,700
Tax on collateral inheritances . 1,150,000 New capitol 1,650,000
Tax on writs, deeds, etc. . . 150,000 State library 23,675
Licenses 2,336,800 Stationery and supplies . . . 175,000
Fees and commissions . . . 201,000 Commissions 104,800
Bonus on charters .... 700,000 Insane 1,059,542
Interest and bond payment . 356,750 Penitentiaries and reformatories 383,286
Miscellaneoiis ...... 38,675 Charitable and other institu-
Total ....... 514,818,225 t'°"^ 1,739,988
Education 6,311,479
Militia 387,500
Purchase of forest reservation 150,000
Bridges 200,000
Interest and sinking fund . . 251,208
Miscellaneous 57,600
Total $14,361,978
Most of the municipaUties follow the same business princi-
ples. In their case, the occasional items are smaller; the
greater part of the expenditures must be met by taxes ; and
the rate of taxation is fixed every year, and easily compared
with the rates of previous years. The tax-payer ordinarily
pays little attention to the amount of the stale tax, but is much
alive to any sudden increase in his local tax.
414 Public Finance. [§ 183
BUDGET OF THE AUDITOR OF SAN FRANCISCO FOR THE
FISCAL YEAR igoi-1902.
Revenue. Expenditures.
Fees and commissions . . . $172,500 Legislative department . . . $271,800
Fines 33)Soo Executive department .... 269,820
Licenses 470,000 Legal department 326,840
State school money 675,000 Public works 924,594
Collateral inheritances . . . 20,000 Police 817,278
Rent 58,750 Public health 280,680
Building permits . . . . ; 25,000 Electricity 91,988
Miscellaneous 20,35° Light for city purposes . . . 255,000
Tax on real estate 3,117,600 Fire 777,000
Tax on personal property . . 1,328,200 Water for city purposes . . . 100,000
Total $5,920,900 Elections 85,000
Civil service 8,100
Schools 1,200,000
Public library 62,000
Parks 285,000
Interest and sinking fund . . . 25,000
Total $5,780,100
183. Public Expenditures.
The expenditures of the various governments are regulated
by a few practical principles. The first is summed up in the
term " control of the purse," which means that the appropria-
tion of money for public purposes rightly belongs to the legis-
lative department. This principle was developed in colonial
times, and was one of the chief means by which the assemblies
made head against the governors. The legislatures not only
claimed the sole power of taxation within their colonies, but
also the right to direct the purposes for which money should
be spent, and to follow and control that expenditure in the
hands of the colonial executive.
The federal constitution distinctly states that no money shall
be drawn from the treasury, except in consequence of appro-
priations made by law. During the early years of the federal
republic such appropriations were frequently made in lump
sums, to be expended at the discretion of the heads of depart-
ments. Gradually Congress came to itemize more and more
minutely ; and at present the annual appropriation bills fix the
number of clerks in each bureau and their salaries, and go into
§ 183] Public Expenditures. 415
such details as the following : " Improving Newtown Creek,
^10,000; of which ^2,500 is to be expended on west branch,
^2,500 on main branch, and balance on lower end." These
appropriation bills, however, are not made up irrespectively
of the executive. Every head of a department submits an
elaborate estimate, based on statements made by various subor-
dinates, of the sum necessary for each of the many branches of
the service. There used to be a crabbed member of a com-
mittee of Congress who invariably cut down a particular esti-
mate by one half, and who learned after he had left Congress
that the estimate submitted to him was always just twice what
was desired.
About one third of the expenditures of the federal govern-
ment are "permanent" or "permanent specific" — that is,
voted for a specific purpose without any limitation of time;
the amount may be a definite one or such as may be found
necessary for the object for which it is appropriated ; and it is
payable out of any moneys in the treasury, unless otherwise
ordered by an act of Congress. The ordinary annual appropri-
ations are made for a specific purpose for liabilities incurred
in the fiscal year for which they are appropriated.
The expenditures of the United States are provided for by
thirteen annual appropriation bills, — agriculture, army, con-
sular and diplomatic, deficiency, District of Columbia, forti-
fications, Indians, legislative, executive, and judicial, military
academy, navy, pensions, post office, and sundry civil. The
" legislative, executive, and judicial " bill provides for the gen-
eral civil service, and for the support of Congress and the
judiciary; it has crept up slowly from $500,000 in 1793 to
$122,000,000 in 1 90 1. War expenses are continuous, but of
course much greater when fighting is going on : about $1,000,-
000 a year at first, they were $20,000,000 in 1814, $35,000,-
000 in 1847, and $1,030,000,000 in 1865 ; in the year 1899
they were $229,000,000. Naval expenses were about $1,000.-
000 a year early in the nineteenth century; $122,000,000 in
1865, and $15,000,000 in 1888; in 1901, a year of peace,
41 6 Public Finance. [§183
they were ^60,000,000. The Indians receive about ^7,000,-
000 a year. Pensions cost ^1,000,000 a year just before
the Civil War, ^27,000,000 in 1878, and in 1893 reached the
high-water mark of $158,000,000, which is about double the
total expense of the government in any year before the Civil
War. Interest on the public debt cost from $1,000,000 to
$3,000,000 a year in the decade before the Civil War, rose
to $144,000,000 in 1867, and by reduction of the principal
and refunding at low rates of interest has come down to
$<2 9,000,000.
The control of the expenditures of the government is exer-
cised through the Treasury Department, since warrants drawn
for expenses in other departments come there for payment.
The principal accounting officers are a comptroller, and six
auditors, one for each of the principal departments. Since no
account can be paid without their approval, they exercise the
final right of deciding whether a given expenditure is covered
by act of Congress, and whether money has been appropriated
by Congress in a constitutional manner. In 1895 Comptroller
Bowler refused to authorize payment of a bounty on beet sugar
under an act of 1890, on the ground that it was unconstitu-
tional to pay bounties to producers ; whereupon suit was
brought before the Supreme Court, which issued a mandamus
compelling the payment of the money. The registrar of the
treasury is a sort of book-keeper ; the treasurer is the custo-
dian of the public funds.
The methods of government" bookkeeping are complicated,
and it is difficult for federal officials to get a settlement of
their accounts. If a linchpin is stolen out of a government
wagon, a new one cannot be had unless some one will take
oath that the old one was used up in the government service.
In 1886 the government books showed nominal balances
against John Adams for $13,000; against General Lafayette,
$5,000; against Washington Irving, minister to Spain in 1847,
three cents ; against William D. Howells, consul at Venice in
1873, $24.75 '} agaiiist John Howard Payne (the author of
§ 183] Public Expenditures. 417
"Home Sweet Home "), consul at Tunis in 1853, ^205.92.
Probably every one of these claims was offset by payments for
the government, and in many cases the government really
owed the alleged debtor. Accounts with the states have often
stood unsettled for many years : certain payments made by
Massachusetts during the War of 18 12 remained unpaid till
1 86 1. With this strict and remorseless bookkeeping it is
often necessary to pass special relief bills in cases of hardship.
The expenditures of the states are made in the same manner
as those of the Union : money must be appropriated by the
legislatures, and annual accounts of receipts and expenditures
are published. The states, however, have many institutions
(such as prisons and workhouses) which produce something,
and which are sometimes allowed to retain the money and allow
it in their accounts. A better system, which is gaining ground,
is to have all receipts paid into the state treasury and to make
appropriations large enough to cover the actual expenses. The
same difficulty occurs with fees, which are common in national,
municipal, and state service, and sometimes make large in-
comes : the clerkship of the supreme court of a state, for
instance, may be one of the best-paid offices in the state.
The national government tends more and more to require that
fees be turned into the treasury, and that an adequate salary
be voted ; and there is room for reform in that direction in
the states.
The purposes of state expenditures are legion. The heavi-
est is the payment of legislative, executive, and judicial salaries.
Next comes the maintenance of state institutions, — prisons,
insane hospitals, reform schools, normal schools, — and often
a large part in the support of country schools. Another large
item is the construction of ways of transportation : the state of
New York has spent ^95,000,000 on canals; Massachusetts is
now spending out of the state treasury about halt a million
a year on roads. The sums subscribed by states to canals and
railroads are usually supphed by loans; but the interest be-
comes an annual charge, and eventually the bonds have to be
27
41 8 Public Finance. [§183
paid. State bookkeeping is in most states less punctilious
than at Washington, though there is commonly a state audi-
tor, who supervises payments. In general the state legisla-
tures do not go far into the details of appropriation bills :
very frequently they appropriate lump sums, to be expended
at the discretion of the trustees of institutions or of executive
boards, who keep and file careful accounts.
Expenditures of cities are in the main like those of states.
First come the salaries of city officers of every kind, including
the support of expensive police and fire departments. Cities
have also the costly responsibility of keeping up the streets,
an expense much increased by the careless American habit of
freely granting permits to tear up pavements in order to lay
pipes. Schools are a heavy item in city budgets. Parks and
other pleasure grounds absorb a great deal of money. Most of
the cities are in debt ; and the interest, with the sinking-fund to
extinguish the principal, is a heavy charge. Public water and
gas works and electric-light plants, even though productive,
require large expenditures for extensions and interest. City
bookkeeping is one of the matters that most need attention,
and efforts are now making to induce states to agree on a
common system of municipal accounting, which will make it
possible to compare the different kinds of expenditure from
year to year, and also to compare the expenses of one city
with those of another.
Counties and towns are less subject to extravagant expendi-
ture than larger units of population, for they are more carefully
watched ; but the erection of county buildings often costs
much more than that of private buildings of the same size and
character. One of the chief items for local expense through-
out the country is schoolhouses : even very small communities
often take pride in spending money for handsome school
buildings.
Throughout the Union the main difficulty with expendi-
tures is a lack of one head in each community who shall be
responsible for the outgoes of government. Money is appro-
§ i84] State Debt. 419
priated by Congress, the legislatures, and city councils, each
under the influence of various committees ; and there is not
a sufficient check on extravagance. In this respect, however,
the states, and still more the cities, are managed better than
the national government.
184. State Debt.
The third great department of public finance is public debt,
which is too often treated as though it were a calamity. The
foundation of modern national debts was an arrangement, in
1694, between the English government and a new corporation
called the Bank of England, by which, in return for large privi-
leges, the bank advanced to the government ;j^i, 200,000.
The colonies often borrowed money of their own citizens in
order to fit out military expeditions. The states did the same
in the Revolution, and in 1789 over $18,000,000 of state
debt was outstanding. This sum was assumed by the United
States, and for about thirty years thereafter the states had
little or no debt. Then came the great era of canal-building,
which involved all the states froni New York to Virginia,
and westward to Illinois. A little later, in the thirties and
forties, came the building of railroads with state aid, caus-
ing an immediate use for millions of dollars ; and at the same
time a new supply of loans became available, because foreign
capitalists were willing to advance large sums on the credit
of the states.
Matters went on flourishingly until the great panic of 1S37,
which instantly cut down the state revenues and for the time
stopped the development of the West. Many of the states de-
faulted on their bonds, among them Pennsylvania, a fact which
led Sidney Smith, a holder of some of the bonds, to say that
he never saw a Pennsylvanian without a desire to strip him of
his coat and boots. Pennsylvania eventually paid up, but
other states repudiated principal and interest. The whole
transaction was much confused because in some cases the
state issued bonds through railroad and banking corporations,
420 Public Finance. [§ 184
which returned only a part of the proceeds : about ^14,000,-
000, which had been lent the states in good faith, was an ab-
solute loss to the capitalists.
A second period of repudiation came during and after the
Civil War. By the Fourteenth Amendment it was expressly
declared that no state should pay any debt incurred in aid of
rebellion against the United States ; hence all loans of the
eleven seceded states incurred during the war became void.
The ante-bellum debts were still valid, and the reconstructed
governments of the Southern states at once proceeded to
make new debts. In South Carolina the accounts were so
loose that nobody ever knew whether the issue of bonds was
^25,000,000 or ^35,000,000 ; but $6,000,000 are known to
have been put on the market without any authority of law.
The debt of the state, which in 1861 was $4,000,000, in 187 1
was stated at $29,000,000, of which about $18,000,000 was
soon after repudiated. The state of Virginia was divided
during the Civil War, and therefore the reconstructed state
refused to hold itself responsible for more than one half the
outstanding debt ; and of the remainder a considerable part
was scaled. The Southern states, together with two Northern
states, between 1865 and 1885 repudiated about $160,000,000,
much of which had been contracted by state governments
which did not really represent the tax-payers.
The amount of outstanding state debts was made the sub-
ject of inquiry by the census of 1890. Most public debts are
slowly reduced by sinking-funds, accumulated to extinguish
the debts when they mature. Deductuig the sinking-funds,
the state debts in 1890 were $229,000,000, a decrease of
$68,000,000 from 1880; they amounted to less than $4 per
capita throughout the United States. As might be expected,
the richest states had very little outstanding debt : in Rhode
Island the debt was about 70 cents per capita ; in New York
about 40 cents ; in Virginia, before the final settlement of the
debt, about 20 cents. A large number of the states have only
nominal debts for temporary purposes, and more than half of
them are practically free from indebtedness.
§ i85] Municipal Debt. 421
The states, even those which once repudiated, are now able
to borrow on very low terms. From 1830 to 1850 the states
were the principal heavy borrowers ; now they compete with
municipalities and corporations. A few state constitutions seek
to limit state debts by provisions that they shall not exceed
fixed amounts, ranging from ^50,000 in Michigan to $1,000,-
000 in Pennsylvania ; and that the creation of new debts must
be ratified by popular vote. Apparently the present outstand-
ing state dobts are likely almost to disappear in the course of
the next two or three decades.
185. Municipal Debt.
One reason why state debts diminish is that municipal and
local debts constantly increase. All American cities are mak-
ing large provisions for future generations : streets and bridges,
sewers and waterworks, schoolhouses and other public build-
ings, are intended to serve many generations. Since the con-
struction of an immense water system like the New York
City Croton Dam and Aqueduct costs as much as a whole
year's taxes, it is reasonable that such improvements should be
distributed among several generations of tax-payers. City
governments frequently shrink from facing improvements
which must be made year by year : hardly an American
city undertakes to build out of taxes enough schoolhouses
to seat the increasing numbers of children. Street paving
is frequently covered by loans, although the pavement wears
out and has to be renewed before the bonds are due. With
few exceptions, however, the municipal debt represents perma-
nent and valuable property necessary for the common weal.
The total county debt in 1890 — principally for buildings —
was $145,000,000 ; and, although this is only $2.30 per capita
for the whole country, in many states it is a very heavy item :
Montana, for instance, had in 1890 $2,000,000 of county
debts, or $12 per capita. The county debts from 1880 to 1890
increased by $20,000,000 ; but, as the creation of new counties
slackens and the necessary buildings are constructed, it is
42 2 Public Finance. [§ 185
probable that the debts will diminish, especially since the
counties in many states are now prohibited from incurring
debt in aid of railroads.
The school-district debt hardly exists in the Southern states,
because there is no such administrative unit ; and the Southern
county debts undoubtedly include items which in other states
go to the school-district account. The total school-district
debt in 1890 was $37,000,000, more than twice as much as in
1880; $25,000,000 of this sum was outstanding in the North-
central states, from Ohio to Minnesota and Kansas. The per
capita school-district debt throughout the United States is 60
cents, but in North Dakota it is $5. This form of debt ought
also to diminish when the country regions are properly sup-
plied with schoolhouses. Like the county debt, it represents
necessary and actual expenditures.
By far the largest item of debt created under state authority
is that of the local governments. In 1890 it was $725,000,000,
an increase of $40,000,000 over 1880, and averaging $11.50
per capita throughout the United States, The heavy munici-
pal debts come where there are most cities ; hence it is
not remarkable that $450,000,000 of this debt should be
owed in the states from Maine to Virginia, and $184,000,000
more in the states from Ohio to Kansas. New York, with
its great metropolis and other populous cities, leads off with
$187,000,000 of municipal debt, which is $30 per head of
the population. The Massachusetts localities come next with
$70,000,000, which is about $34 per head. In 1901 the
city of Greater New York had rolled up its debt to $364,-
000,000, which is considerably more than $100 per capita.
Chicago owed only $26,000,000, or about $12 per capita;
Boston owed $46,000,000, or about $80 per capita ; San
Francisco had practically no debt. It is certain that the
census figures of 1900, when made up, will show a large
increase of municipal debt; so that the total will certainly
be over $1,000,000,000, or an average of about $13 per
capita, and will probably be greater than the national debt.
§ x86] National Debt. 423
It is difficult to see how municipal debt can be diminished,
for American cities are waking up to see what may be done
to make life in cities attractive and healthful. New York
is now borrowing ^35,000,000 to construct a subway, and
;^30,ooo,ooo for new bridges and tunnels to Brooklyn and
the neighboring shore. Many cities are spending large sums in
acquiring park lands and boulevards. The pinch is not in the
borrowing, for the credit of the great American cities is almost
as good as that of the federal government, but in the interest
charge, which in New York City is upwards of ^10,000,000 a
year. There is a limit beyond which increased taxation
tends to diminish the revenue, by discouraging the people
from coming into a place. On the other hand, expenditures
for parks, breathing-places, boulevards, new streets, bridges,
tunnels, subways, schoolhouses, public docks, and other mu-
nicipal purposes, which could only be provided for by loans,
increase the productive power of a community and thereby
raise its ability to bear taxes.
186. National Debt.
Until about 1900 the heaviest block of public debt in the
United States was that of the federal government. It goes
back to a resolution of the Continental Congress of October
3, 1776, providing for a public loan. During the Revolution
about ^12,000,000 were lent on what we should call bonds;
about ^6,500,000 were lent by the foreign governments of
France and Spain; and about $17,000,000 simply accrued, for
when the United States had nothing else it paid in interest-
bearing certificates of indebtedness. During the Confedera-
tion the credit of the government was such that it could
borrow nowhere, except $3,600,000 from Dutch bankers ; and
interest accrued, so that in 1789 about $40,000,000 prin-
cipal and $13,000,000 interest were outstanding, and evi-
dences of that debt could be freely bought for specie at from
^5 per cent to 25 per cent of their face. Over $18,000,000
424 Public Finance. [§ 186
of state debt was assumed in 1790; so that, when the ac-
counts were all made up, the United States in 1793 owed
$80,000,000.
The debt somewhat increased under the Federalists and
by the purchase of Louisiana, so that in 1804 it stood at
$86,000,000 ; but Jefferson and Gallatin set themselves stead-
ily to reduce it, and by 181 2 brought it down to $45,000,000,
The War of 181 2 raised it to $127,000,000; and then it
slowly decreased, till in 1836 it was practically extinguished,
and the government had a surplus of $36,000,000, $27,000,000
of which it gave to the states. The panic of 1837 so reduced
the revenues that an interest-bearing public debt for running
expenses at once sprang up, and in i860 it was $65,000,000 ;
then came the enormous drafts of the Civil War, which raised it
in 1865 to $2,381,000,000, besides many non-interest-bearing
obligations.
Under the influence of high taxes and national prosperity,
the government then entered systematically upon the almost
unexampled task of paying off its debt. There was a strong
feeling in the United States that a national debt was a na-
tional burden, which must be thrown off as quickly as pos-
sible; though the outstanding debt in 1865 was really much
larger than it appeared, for it had been contracted in green-
backs, but was payable and was paid, principal and interest,
in gold. In twenty years, to 1885, the principal was reduced
from $2,381,000,000 to $1,196,000,000. Then came further
reductions, till on December 31, 1891, the funded debt stood
at $590,000,000. During the decade from 1890 to 1900,
however, the debt was again somewhat increased, partly
because of the lean years, from 1894 to 1899, and partly
because of the expenses of the Spanish War; so that in
December, 1901, it stood at $945,000,000,
In addition to this interest-bearing debt, the United States
has a peculiar kind of obligation impossible either to states
or to localities. In 1862 Congress authorized the issue of
legal-tender paper currency, and eventually about $450,000,000
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§ i86] National Debt. 425
was issued. This has been reduced to ^347,000,000, and
with outstanding fractional currency and some other items
makes the non-interest-bearing debt of the United States
about ^389,000,000. From the aggregate of funded debt and
non-interest-bearing debt, which is now about $1,300,000,000,
is to be subtracted the cash in the treasury (except several
hundred milhon dollars held there for the specific redemption
of various forms of treasury notes and certificates). That
cash balance is always kept at something over $100,000,000,
and sometimes reaches $200,000,000 or $250,000,000. Mak-
ing these deductions, the actual indebtedness of the United
States on December 31, 1902, was $947,000,000. At present
there is an annual surplus applicable to the reduction of the
debt, and there has repeatedly been a strong movement to
retire the greenbacks. One serious difficulty is that the cur-
rency system of the national banks is based on government
bonds, and if the debt is paid all the national banknotes will
have to be called in. The sentiment of the country, how-
ever, is strongly against a continuous national debt ; and ten
years of prosperity should be sufficient to bring us again to
the happy condition of 1836.
The rate of interest paid by the United States has varied
with the conditions of the money market and the necessities
of the government. The loans of the Continental Congress
usually carried 6 per cent ; under the funding system of
Hamilton, bonds were issued at 6 per cent and 3 per cent.
During the War of 1812 the government refused to offer more
than 6 per cent, but was obliged to sell its bonds far below
par, so that the $80,000,000 incurred probably did not net
more than $74,000,000 in specie values. This meant that the
government paid from 8 per cent to 10 per cent for its money,
and then had to pay a bonus of $6,000,000 when the trans-
action was completed. During the Civil War much the same
process was adopted : no bonds drew more than 6 per cent,
but there were times when $1,000 in gold would buy $2,500
worth of bonds paying 6 per cent interest in coin ; that is, the
426 Public Finance. [§ 186
lender got 15 per cent on his money, and eventually received
back two and a half times his investment. The reason was
simply the doubt whether the United States would be able to
redeem its promises. A large share of the borrowings during
the war were for very short terms; it was not till 1869 that
the great part of the debt was funded in 5 per cent and 6
per cent bonds. By this time the credit of the government
had so improved that it began to issue bonds at reduced in-
terest: by 1880 no interest was offered higher than 4I per
cent; in 1891 a lot of 4| per cents fell in and were continued
at 2 per cent. At present the United States can borrow any
amount at 2| per cent, and even at 2 per cent, for it has the
best credit in the world.
This low rate of interest is obtained because the govern-
ment scrupulously redeemed its promises on the Civil War
loans, and because government bonds are absolutely free from
any tax by state or local governments; so that a 2^ per
cent United States security may perhaps net as much as a
4 per cent railroad bond. By the reduction of the debt and
the improvement of the public credit, the interest charge, from
one of the heaviest items of national expenditure, has become
one of the lightest. In 1867 the interest was ^144,000,000;
in 1902 it was only ^29,000,000.
The public debt has been expressed in many different forms,
of which the most important are the following : —
(i) The bonded debt, expressed in a formal engraved bond.
In order to attract investors, there is usually a provision that
bonds cannot be called in before stated periods, which may
be five, ten, or twenty years. When the government has a
surplus available for debt redemption, and no bonds are yet
due, it buys them in the open market, often at considerable
premiums, and thus disposes of the surplus and at the same
time cuts off interest. United States bonds are a favorite in-
vestment, because secure, and because they are the legal basis
of the national bank notes. Coupon bonds are furnished with
engraved coupons for each interest payment, which may be
s 187] Reforms. 427
deposited like checks in any bank. Holders of registered
bonds receive their interest by government check.
(2) The treasury note. This is an interest-bearing prom-
ise to pay, usually running one, two, or three years. Such
notes have been issued in every time of financial stress, — as,
for instance, during the War of 181 2, in the financial depres-
sion of 1837 to 1842, and during the Civil War, when hun-
dreds of millions of such notes were issued bearing 7.3 per
cent interest. Since the Civil War no resort has been had to
this form of borrowing.
(3) Circulating paper money. Although suggestions were
often made that this resource be used, it was not actually
employed until 1861, and in 1862 began the first legal- tender
notes.
187. Reforms in Public Finance.
From the two chapters on financial functions, we may see
in what direction improvements ought to proceed. The prac-
tical division of taxation, by which the federal government
depends almost entirely on indirect taxes, — imposts or con-
sumption duties, — leaves to the state and local governments
almost the whole field of land, property, franchise, license, suc-
cession, and miscellaneous taxes. The advocates of a single
tax, to be laid on real estate, make a strong case, because all
occupations and franchises must have the use of land and can
be reached in that way ; but no state has so far shown a dis-
position to give up personal taxes, and many states find direct
corporation taxes easy to levy and very productive. It is
desirable that vexatious taxes producing small amounts and
expensive in application, such as state income taxes, should
be abandoned.
A great reform may be made in the methods of assessment,
by creating more permanent and responsible and better-paid
boards of tax assessors : over-estimates lead to vigorous objec-
tions, and often to resort to the courts, but an error or fraud
or any under-assessment of real estate is likely to pass unques-
428 Public Finance. [§ 187
tioned. The ordinary personal-property tax is unfair, because
it is evaded in whole or in part by fully three fourths of the
tax-payers, and the other fourth have to bear an unreasonable
share of the burden.
The national taxes are productive, and are easily and cheaply
collected. The chief practical difficulty in administering them
is that the tariff is laid for two purposes, which really conflict
with each other : so far as it brings in revenue, it is not pro-
tective ; so far as it is completely protective, it shuts off reve-
nue. In the effort to distribute protection, the tariff is assessed
on more than i,ooo different articles, and cannot fairly be laid
and collected because no appraiser is wise enough to find the
value of so many articles.
At present all forms of government in the United States are
acquiring property : parks, forests, and reservations increase ;
public buildings of every kind are multiplied ; the trend seems
distinctly to be toward a municipal ownership of waterworks
and of gas and electric Hght plants; and in 1902 the people
of Chicago voted by a great majority that it was expedient for
that city to acquire the car lines. This throws an additional
responsibility upon the governments, and emphasizes the neces-
sity of experts to manage public property.
With the exception of the national government, every Ameri-
can government has some kind of budget ; but in no state, and
in few cities, is there any one official who keeps a firm hand
on the relations between income and outgo. The mayor, and
to some degree the finance committees of city councils, con-
sider the city finances together ; and in a few cities, notably
New York, the budget of expenditures and taxation is made
up by a small board of apportionment or estimate, and is not
voted on by the city council. What we need is a stronger
sense of the importance of concentrating financial responsibility
and supervision in a few hands.
In the United States, public expenditures usually go directly
to public purposes. In state governments, and still more in
city governments, there are some sinecures, and many cases
§ 187] Reforms. 429
where two or three men are paid to do the work of one. In
other words, though the items of state and city expenditures
are almost ahvays for the public good, it takes more money to
accomplish the purpose than in private corporations. States
and cities skimp the salaries of the most important public
officers, so that it is a sacrifice for the best men to accept
public service : policemen, clerks, firemen, and laborers are
often much over-paid in comparison with the servants of
railroad and manufacturing companies. The public suffers
great loss also from not working out in advance careful
schemes of public improvement, so as to do first what is most
needed, and to avoid doing things several times over. The
sums spent in digging up Fifth Avenue in New York City and
then filling it in again would long ago have built a tunnel from
end to end, sufficient to hold sewer, gas, water, and electric
mains, and everything else that needs to go below the surface.
Public debts are in general a great public advantage : but
over-borrowing brings about ruin, as has been shown in the
two epochs of repudiation by the states, and in the bankruptcy
of small cities ; and Americans are too apt to borrow money
for temporary needs, instead of facing the taxation which must
eventually pay for all public expenditures.
One danger arising from foreign public debts does not apply
to the United States : the $6,000,000,000 of French debt, with
an interest charge of about $200,000,000 a year, is really a
payment by one part of the French population to another part ;
sometime the burden of interest will become such that there
will be a revolution, and a scaling, or repudiation, of the debt.
In the United States, where the total burden is not a fifth as
great per capita, and where the country is extremely rich and
productive, this danger can hardly come about, especially since
the bonded debts of railroads alone far surpass the total public
debt within our borders.
Part VIII.
External Relations.
CHAPTER XXIII.
FOREIGN INTERCOURSE.
188. References.
Bibliography: A. B. Hart, Foundations of Am. Foreign Policy
(igoi), ch. viii; A. B. Hart, Monroe Doctrine (1916), pt. vi; Cyclop, of
Am. Govt. (1914), I, 66, 218, 450, 591, 595; II, 38, 468; III, 569, 571,
701; A. B. Hart, Manual (1908), §§ 73-86, 121, 122, 226, 297; E.
McClain, Constitutional Law (1910), §182; Macy and Gannaway,
Comparative Free Govt. (1915), 724 (cases); Channing, Hart, and Turner,
Guide (1912), §§ 155, 157, 171, 181, 183, 187, 198, 212, 224, 238, 244, 257,
263, 267, 268; J. B. Moore, International Arbitrations (1898), I, Ixxxiii-
xcviii; bibliographies and footnotes in the treatises on international law.
Diplomacy: J. B. Moore, Am. Diplomacy (1918); E. McClain,
Constitutional Law (igio), §§ 133, 134; J. W. Foster, Practice of Diplo-
macy (1906), chs. i-xi; J. H. Latane, America as a World Power (1907),
ch. vi; J. W. Foster, Century of Am. Diplomacy (1901); Cyclop, of Am.
Govt. (1914), Arts, on Arbitration and Peace; Claims, International;
Consular Service of the U. S.; Diplomacy and Diplomatic Usage; Diplo-
matic Service of the U. S.; Foreign Policy of the U. S.; International
Law, Influence of the U. S. on; Monroe Doctrine; World Power, United
States as a; F. Van Dyne, Our Foreign Service (1909); G. Hunt, Depart-
ment of State (1914); J. Bryce, Am.. Commonwealth (ed. 1910), II, chs.
xcvi, cxvi; A. B. Hart, Fomidations of Am. Foreign Policy (1901); A.
'B.'Rs.xt, Monroe Doctrine (1916). — Sources: Memoirs and correspond-
ence of diplomats; J. B. Moore, International Arbitrations (1898);
J. B. Moore, Digest of International Law (1906); Am. State Papers,
Foreign (period 1 789-1828); Foreign Relations (annual volumes since
1861); J. D. Richardson, Messages of the Presidents (1896-1899); A.
B. Hart, Contemporaries (1897-1901), II, §§ igg, 216, 217; III, §§ 48-
53, 92-99, 128, 142-150; IV, §§ 14, 98-100, 173-179, 192-196; C. A.
Beard, Readings in Am. Govt. (1909), ch. xvi; P. S. Reinsch, Readings on
Am. Federal Govt. (1909), chs. iv, xii.
I. Treaties: On the principles of negotiation, see the treatises on
international law, especially E. Hall, International Law (7th ed., 1917),
ch. x; J. W. Foster, Practice of Diplo^nacy (1906), chs. xii-xv; J. B.
Moore, Digest of International Law (1906), V, §§ 734-896; C. Calvo,
430
§189] Foreign Policy. 431
Droit International (4th ed., 1887-1896), III, 373-404. — On the rati-
fication of treaties by the Senate, see ch. xiii; C. H. Burr, Treaty-Making
Power (1912); E. S. Corvvin, National Supremacy (1913); Cyclop, of
Am. Govt. (1914), Arts, on Treaties as the Law of the Land; Treaties
of the U. S.; Treaties in International Law; S. B. Crandall, Treaties
(2d ed., 1916); W. W. Willoughby, Constitutional Law (1910), I, chs.
xxxii-xxxv. — Text of treaties: W. M. Malloy and G. Charles, Treaties
and Conventions ly/d-igi^ (1910-1913); Statutes at Large.
189. History of American Foreign Policy.
No function of American government is so centralized as the
foreign relations. The constitution not only gives to the presi-
dent and Senate sole power to make treaties : it also bestows
on Congress exclusive povver to regulate commerce with
foreign nations, to punish offences against the law of nations,
to declare war, to raise, support, and govern armies and
navies ; it provides that no state shall enter into any treaty,
alliance, or confederation, or lay any duties on imports ; or tax
exports if Congress objects, or without the consent of Congress
keep troops or ships of war in time of peace, or enter into any
.igreement or compact with a foreign power; or engage, in war
unless invaded ; while to the federal courts it gives jurisdiction
in almost all cases involving foreign relations.
This exclusive power dates back to colonial times : the
English colonies had no authority to enter into relations with
foreign countries ; they were bound by treaties made between
England and foreign powers, and were drawn into wars not of
their own choosing. From 1775 to 1789 the states had some
control over foreign relations, and could legislate on foreign
commerce ; but they were represented in foreign courts only
through ministers appointed by Congress, and no state made
any arrangement or treaty with a foreign power on its own
account.
The foreign powers of the new federal government were
almost immediately invoked by the breaking out of the
French Revolution, followed in 1792 by war in Europe, which
continued with but one year of peace till 1 8 15. In a proclama-
432 . Foreign Intercourse. [§ 189
tion of April, 1 793, President Wasliington laid the first stone
in our national policy by his neutrality proclamation. The
aggressions of both England and France made the carrying
out of this policy a difficult task: in 1794 we were on the
verge of war with England; in 1798 we engaged in naval
war with France. Nevertheless, these troubles were healed,
and until 181 2 we were at. peace, except with the Barbary
Powers. The splendid naval victories of the War of 1812
gave us a favorable peace, and so much prestige in diplomatic
affairs that from that day to this few powers have wilfully
antagonized the United States.
A period of great territorial expansion now set in : Louisiana,
Oregon, West Florida, and East Florida were annexed from
1803 to 1819. Meantime a new group of international
neighbors grew up in the Latin- American states ; and in
1823, in their behalf, Monroe reiterated the principle that the
United States would not intervene in foreign difficulties, but
he coupled with it the declaration that foreign powers must
not interfere in quarrels not their own in America.
Until the annexation of Texas, New Mexico, and California,
in 1845 to 1848, the country was chiefly engaged in develop-
ing the West. California, however, brought up the question
of isthmus transit and a canal, a matter Avhich continued a
storm centre of diplomacy for half a century. The Civil War
brought two great international difficulties, — the fitting out of
Confederate cruisers in British ports, and the attempt of France
to conquer Mexico. As soon as the war was over, the United
States took up these problems and settled them both to its
satisfaction. The question of Cuba and the control of the
West Indies then became important, and from 1868 to 1897
busied our diplomats. That question led to the Spanish War
of 1898, as a result of which Cuba became a dependency of
the United States, and the Spanish possessions of Porto Rico
and the Philippine Islands were annexed to this country.
Although since the Revolution the United States has engaged
in five foreign wars, — the French in 1798, the Barbary in
§190] Diplomatic Representatives. 433
1803-1804, the English in 1812-1815, the Mexican in 1846-
1848, and the Spanish in 1898, — its purpose has been
essentially pacific in all except the Mexican War. The main
principle of American diplomacy is to keep out of complica-
tions in Europe, and at the same time to prevent violent and
destructive changes anywhere in America.
190. Diplomatic Representatives.
Foreign relations do not adjust themselves, nor are they
adjusted simply by principles of mutual interest. The relations
between nations are regulated first of all by international
law, — that is, by centuries of precedents and agreements, —
and are recorded by treaties ; and both international law and
treaties must be applied by individuals organized in a regular
foreign service.
The official head of the diplomatic service is the president ;
and most men in that office keep close relations with the
Department of State. Under the constitution, the president
formally receives foreign ambassadors ; but it is very unuslial
for him personally to discuss diplomatic matters with a foreign
minister, or to write personal letters to a foreign government.
Many of the presidents before 1861 were experienced in
the diplomatic service : John Adams, Jefferson, Monroe, John
Quincy Adams, Van Buren, and Buchanan had all ^ been
accredited ministers abroad, and each took special interest
in foreign affairs while president.
Next in power comes the secretary of state, who in other
countries would be called minister of foreign affairs. It is his
duty to draw up instructions for ambassadors, to keep in
correspondence with them, to discuss matters with foreign
representatives, and personally to conduct negotiations and
frame treaties in Washington. Few officers of government
have such an opportunity to set their mark on their country's
history and to affect their country's destiny. The secretary-
ship of state has been held by some of the most eminent
Americans, among them Jefferson, Madison, Monroe, John
28
434 Foreign Intercourse. [§ 190
Quincy Adams, Henry Clay, Martin Van Buren, Daniel
Webster, Johin C. Calhoun, William L. Marcy, Lewis Cass,
Edward Everett, James Buchanan, William H. Seward,
Hamilton Fish, James G. Blaine, John Sherman, and John
Hay.
The president appoints the members of the diplomatic
service (subject to confirmation by the Senate), and may
remove them. Washington, for instance, recalled Monroe
from France in disgrace in 1796; Jackson recalled General
Harrison from Colombia in 1829; Mr. Motley was removed
from the Austrian mission by President Johnson in 1867, and
from the mission to England by President Grant in 1870.
Foreign representatives are accredited directly to the presi-
dent, and he may refuse to hold diplomatic relations with
men who are offensive to him : President Madison declined
to allow further correspondence with James Jackson, the Eng-
lish minister, in 1809; and General Grant in 1871 demanded
the withdrawal of Catacazy, the Russian minister.
It is a disputed question whether the president may appoint
foreign representatives without previous provision for their
salaries by act of Congress. Of course no legation can be
permanently maintained if Congress refuses to vote money for
the necessary salaries, though President Grant in 1876 pro-
tested against a bill for discontinuing a legation :' but presi-
dents often appoint commissioners for special exigencies. For
instance, in 1887 Mr. Cleveland appointed a commission to
negotiate a fishery treaty with Great Britain, and in 1893 des-
ignated Mr. Blount as special commissioner to investigate the
state of things in the Hawaiian Islands.
No qualifications for ministers are prescribed by the consti-
tution or by law ; but most appointees have already seen
public service of some kind in Congress, in the state govern-
ments, or in the federal civil service. It is unusual to appoint
actual officers in the army or navy, even as special commis-
sioners. Since it costs a great deal of money to keep up
a legation, wealthy gentlemen of public spirit are often
§ 19°] Diplomatic Representatives. 435
appointed, and prove excellent ministers. As a minister is
expected to establish friendly relations with the people to
whom he is sent, it is very desirable that he should speak the
language of their country ; but there are many instances in
which American ministers cannot even use French, which is
the usual intermediate language in diplomatic circles. Amer-
ican ministers are of course subject to the same rules of
acceptance by foreign countries as are applied in Washington :
in 1885 the Austrian government refused to receive Mr. Keiley
as minister, one ground being that his wife was a Jewess ; and
there was nothing for it but to appoint some one else.
The diplomatic representatives of the United States are
divided into four categories : ambassadors ; envoys extraordi-
nary and ministers plenipotentiary ; ministers resident ; and
charg(^s d'affaires, who are diplomatic subordinates, for the
time being put in charge of the business of the legation.
Special commissioners, a fifth kind of representatives, are
often appointed to sit on arbitrations, or to adjust claims and
boundaries. The dignity of ambassador was not created until
1893, and is enjoyed only by the representatives sent to and
from Great Britain, France, Germany, Russia, Italy, Austria,
and Mexico. Every legation has one or more secretaries, who
often remain for many years at their posts in order to keep up
the traditions of the legation. Sometimes the United States
sends special ambassadors, as on the occasion of the corona-
tion of Edward VII in 1902.
The term of a foreign representative is not fixed by law,
but there are always numerous changes when a new president
comes in ; so that eight years is about the limit of an ap-
pointment. Mr. Marsh, however, was minister to Italy from
1 86 1 to 1882, serving under six presidents. Secretaries of
legation sometimes are promoted to small diplomatic posts ;
but the diplomatic service has offered no career in which a
man could expect to rise to an important life position. Under
Presidents McKinley and Roosevelt there have been frequent
cases of transfers of successful ministers from one post to a
436 Foreign Intercourse. [§191
larger one : thus, Mr. Hardy has been minister to Persia,
Greece, Switzerland, and Spain.
Ministers have a special right to protection by the author-
ities of the countries to which they are accredited : no min-
ister, and no employee or servant of a minister, may be
arrested on civil suit ; no police may enter the premises of
a minister ; and in disturbed countries, like those of South
America and the Orient, ministers may give protection to
refugees in time of revolution.
The highest salaries paid to diplomatic representatives are
$17,500 to each of five of the ambassadors; the lowest are
$1,200 for a third secretary of legation. These salaries are low
in comparison with those paid by foreign powers for similar
services : the British minister at Paris has a salary of $40,000
a year, with a splendid house and many small expenses borne
by his government. Indeed, no American can accept a
mission to a first class power unless he has private means in
addition to the salary.
Notwithstanding the somewhat haphazard way in which
ministers are appointed, and their frequent lack of the qualifi-
cations expected in the foreign diplomatic service (such as
previous public service, social distinction; and knowledge of
the languages), the United States has seldom failed to obtain
what it desired because our minister was not up to his work.
In these days of ocean telegraphs, the minister constantly
refers home for instructions, and takes no important steps
without the direction of the secretary of state ; and our very
simplicity, directness, and lack of form often make it easier
to get at the kernel of the matter in controversy.
191. Consuls.
Apart from the diplomatic representatives are the com-
mercial representatives, the consuls. Since 1778 the United
States has appointed and received consuls, who are accredited
to particular places, especially the seaports, and are expected
to represent the trade interests of their country. The grades
-M
20'
"diplomatic and consular offices
OF THE
UNITED STATES
IN
EUROPE
EXPLANATION
Ijcpatton £3
Consulate General .-♦•
Consalate •
§ i9i] Consuls. 43/7
of the service are as follows : consul-general, consul, vice-
consul, consular agent. The consul-general acts as consul in
the capital of the country to which he is accredited, and also
supervises the other consuls in that country ; the vice-consul
is simply a substitute for a consul for the time being ; the
consular agent is a kind of deputy for a consul. The consuls
are appointed by the president and confirmed by the Senate,
and receive salaries ranging from ^1,000 to ^4,000; those of
the consuls-general run up to ^7,500. Official fees are not
added to the salary ; but unofficial fees, such as the acknowl-
edgment of papers, are retained by the consuls, and sometimes
amount to several hundred dollars a year.
Most of the consuls are men who have no other business.
The United States appoints few merchant consuls ; but it is
common to have a vice-consul or a consular agent who is a
citizen of the foreign country. Such persons, or paid clerks,
are likely to transact most of the consular business.
Although in 1856 the consular service was divided into
classes, and in 1864 thirteen consular clerks were created as
a means of entrance to the service, those clerks are not pro-
moted ; but transfers from smaller to larger regular consulates,
once rare, have now become frequent.
Foreign consulates are much prized, although the pay is
small ; for Americans like to visit and live in foreign coun-
tries. Hence a powerful political pressure is brought to bear
on the president and secretary of state ; and most consuls are
appointed, not because they are acquainted with business in
general or with the trade of the places to which they are
going, but because they have been useful in the campaign or
the party. Under each administration there is a new crop
of expectants, who can be provided for only by removing
the previous occupants ; therefore the consular service has
been one of the branches most systematically disturbed for
political reasons.
Since 1895 various attempts have been made to reform
the consular service by admitting men to the lower grades
438 Foreign Intercourse. [§191
on examination, and then promoting and transferring them
according to the needs of the service ; and eventually this
policy must prevail, for the development of American com-
merce abroad is much impeded by a service which contains
many good and conscientious men, but which neither pro-
motes nor keeps in office those who have proved their
competence.
The 300 consuls and 30 consuls-general are all subject to
the general rule of international law that no functions can be
exercised until the " exequatur " is received, — that is, the
official recognition of the government to which they are
accredited ; and both in the United States and in foreign
countries the exequatur is sometimes revoked, and the con-
sul is thus cut off from all official action. A famous instance
was the withdrawal of the exequatur of the French consul at
Boston in 1793. Consuls are not entitled to the immunities
of diplomatic representatives ; they may be sued for ordinary
debts, although by treaty many countries agree that they shall
not be subject to civil arrest or to the seizure of archives.
The official functions of consuls are as follows : — (i) They
have commercial duties, pertaining to the movement of trade
between the two countries : for instance, they certify invoices
of merchandise exported to the United States, and look after
American sailors who are ill or stranded in foreign ports.
Consuls also act as notaries for the registration of various legal
papers ; and they make periodical reports on the trade of the
country in which they live, with especial reference to com-
merce with the United States. These reports may be on any
subject which seems significant, and considerable extracts from
them are published in the official serial known as Consular
Reports. A consul at Three Rivers, Canada, who in 1891
introduced into his report some criticisms of the people of
the place, saw his opinions printed in full, with the result that
he was shortly transferred from his post.
(2) Consuls have several judicial functions: they investi-
gate difficulties or crimes that have occurred in American
§ 192] Treaties. 439
ships on the high seas ; and they may hold a kind of court to
examine charges of cruelty. In many partly-civilized coun-
tries, especially in Asia and the Turkish dominions, where
Americans have no confidence in the local courts, consuls act
as judges in cases involving two Americans or an American
and a native. Such courts may actually condemn citizens of
the United States to death for crimes committed in foreign
countri^, if the minister approves of the conviction. Similar
powers are exercised in such countries by consuls of other
foreign countries ; but they have more distinctly defined juris-
dictions, with opportunities for appeal to their home courts.
(3) Consuls have a variety of social functions not set forth
in their instructions : they are expected to invite distinguished
visiting Americans to dinner ; to lend money to the American
whose draft has not come ; to recommend lodgings, and to
quarrel with the proprietors if the tenants are dissatisfied. A
former consul at Geneva declares that he was called upon to
tell where real American chewing tobacco could be obtained,
to forbid the French government to examine a lady's trunk at
the frontier, and to decide how "bombshell" should be pro-
nounced. The wise travelling American earns the gratitude
of his consul and his minister by calling upon them only when
he is in a difficulty from which an experienced official can
and should help him out.
192. Treaties.
The treaty, or solemn agreement, between two countries
is as old as history : a treaty between Corcyra and Athens
brought on the Peloponnesian War. In colonial times, all
treaties made by England were for the colonies as well as for
the home country ; thus, by successive agreements with France,
the boundary of the English possessions in America was ex-
tended. During the Revolution the treaty-making power for
the new states was by common consent vested in Congress,
which commissioned ministers to most of the European courts,
and in 1778 secured an inestimable treaty with France, under
440 Foreign Intercourse [§ 192
which French ships and soldiers came over and made possible
the military success of the Revolution. The treaty of peace
of 1782 was the first of many agreements with England.
The treaty-making power of the Confederation was incom-
plete because it did not extend to commercial questions ; but
by the constitution of 1787 the power was made unmistakable,
for the states were deprived of all control over commerce, and
power was given to the president and Senate "fo make
treaties," a clause which is interpreted to mean treaties on
any subject within the field of the federal government. Since
that time about 300 treaties have been made and ratified,
besides those that have failed. Among the most important
agreements are the treaties of peace with France (1800),
Great Britain (1814), Mexico (1848), and Spain (1898) ;
the commercial treaties with England (1794, 1815, and 1854),
China (1844), and Japan (1854) ; the boundary treaties with
England (1818, 1842, and 1846) ; the canal treaties with
Colombia (New Granada) (1846) and England (1850 and
1902) ; the German treaty on citizenship (1868) ; the Treaty
of Washington settling the Alabama difficulty (187 1). The
United States has assented to various general treaties, such as
postal conventions; and also to the agreement of 1885 on
the Congo Free State.
When a treaty is negotiated abroad, a special commission
composed of several persons is often appointed. For in-
stance, Pinckney, Gerry, and Marshall were sent to France in
1797; the treaty of peace of 18 14 was negotiated by five
commissioners — Clay, Gallatin, John Quincy Adams, Bayard,
and Russell; and that of 1898 at Paris by five commissioners
— Day, Davis, Frye, Gray, and Reid — of whom three were
members of the Senate.
Most negotiations, however, are carried on by our Ameri-
can minister at the foreign court, under instructions from
Washington ; or in this country by the secretary of state with
the foreign minister. Of this latter kind are the treaties of
1842, 1846, 187 1, and 1902, with Great Britain. In 1891,
§ 192] Treaties. 441
when a conference was being held with representatives of
Great Britain and Canada, Colonel Foster as a special com-
missioner made some statements which he said were author-
ized by the president ; Secretary Blaine thereupon withdrew
from the room, on the ground that as secretary of state the
president's wishes should be made known only through him.
In drawing up important treaties, it is common to write out a
sort of journal of the conferences, known as a " protocol,"
in which appears a joint statement of what is proposed and
answered, with copies of papers which are handed in.
No negotiations can be carried on except through persons
officially accredited for that purpose by the president. In
1806 Dr. Logan attempted to get from the French govern-
ment information which had been refused to our minister ; the
result was a statute making it a criminal offence for a private
individual to assume any diplomatic functions with a foreign
power.
Few treaties are ever negotiated without knowing before-
hand the mind of the president on the general issues ; never-
theless, if the negotiators come to an agreement and sign a
treaty, it is not binding on the president, who may at his
discretion stop it there, without referring it to the Senate.
Thus, Jefferson held back the treaty with England in 1806;
and President Cleveland in 1893 withdrew a treaty for the
annexation of Hawaii, which was pending in the Senate when
he came into office.
The constitution provides that treaties shall be made " with
the advice and consent of the Senate . . . provided two-thirds
of the Senators present concur." The word " advice " sug-
gests that the president may consult the Senate in advance ;
and President Washington, in 1789, came personally upon the
floor of the Senate and asked the advice of the Senate then
and there. Somewhat fearful of the majestic presence of the
great man, the Senate referred the matter to a committee ; and
that was practically the end of any attempt by the president to
hold official personal council with the Senate. Still, every
442 Foreign Intercourse. [§ 192
prudent president discusses the chances of a treaty with his
leading senatorial friends ; and presidents occasionally sound
the Senate by messages. Polk, in 1846, formally called upon
the Senate to inform him whether it would ratify a compro-
mise boundary in Oregon, and received the desired assurance.
If the president approves the treaty submitted to him, he
then sends it to the Senate for ratification; there it is referred
to the Committee on Foreign Relations, the chairman of which
is really a sort of congressional secretary of state. If, as often
happens, the committee is not interested in the treaty, it may
remain for months unregarded, although the Senate has power
to call it up at any time. The necessary two-thirds vote of
the Senate has almost always been obtained for treaties of
peace and for the adjustment of dangerous diplomatic contro-
versies; indeed, the necessity of a two-thirds vote is so patent
that a president seldom comes to an agreement with a foreign
country without a reasonable assurance beforehand that the
treaty will be ratified. In 1795 Washington, by his utmost
personal influence, got a 24 to 12 vote for the Jay Treaty; in
1869 the Johnson-Clarendon Convention for the settlement of
the Alabama question had only one vote in its favor. An
interesting case is the treaty of 1844, for the annexation of
Texas : it was held for six weeks by the Committee on Foreign
Relations in order to affect a nominating convention, and then
was voted down.
The Senate does not always accept the alternative of approv-
ing or rejecting a treaty : it often makes amendments, a step
which of course involves a new discussion with the foreign
country. If the amended treaty is accepted by the foreign
power, it is not necessary to submit it a second time to ratifi-
cation ; if it is not accepted, the treaty fails. Such was the
case with the Hay-Pauncefote Treaty of 1900, which was so
amended by the Senate as completely to alter its tenor.
A treaty ratified by the Senate is still not valid till ratified
by the other power : Thus, the Florida Treaty was hanging
uncertainly from 1819 to 1821. When ratifications are once
§ 192] Treaties. 443
exchanged, the president may still withhold the ofificial procla-
mation ; but the treaty is complete so far as the foreign
country is concerned : a failure to carry it out would be good
ground for diplomatic complaint, and might be a ground for
war. Here arises the very important question of the relation
of the House of Representatives to the treaty-making power.
In 1 796 a bill was introduced to appropriate money to carry
out the Jay Treaty ; the House called on President Washing-
ton to send explanatory papers, and he declined to do so, on
the ground that he was under no obligation to explain his
diplomacy to the House, since the treaty was already the law
of the land. After a long debate, the House by the. narrow
vote of 5 J to 48 made the necessary appropriation. The
same question has been raised many times since. Sometimes
a treaty contains a stipulation that it shall not go into effect
until Congress has passed the necessary laws, and such a
treaty with Mexico in 1883 failed because the House would
not take action.
Of late years the House has been inclined to claim that no
treaty which alters the duties on imports is valid without its
assent, a difficulty which was avoided by the act of 1890,
authorizing the president to make reciprocity treaties on cer-
tain conditions. But the president and Senate, under the
constitution and the practice of a century, need no permission
to make commercial treaties which alter the tariff, and they are
subject to no special limitations : that power has been exer-
cised at least fifty times.
A treaty supersedes a law ; but ^ law of later date equally
supersedes a treaty, as was shown in 1798, when Congress by
statute declared all the French treaties invalid and extinct.
It would be presumed that a general tariff law was not intended
to supersede special treaty rights secured by foreign nations
through concessions on their part ; but it is perfectly com-
petent for the president and a majority of both houses to
destroy the effect of a treaty by hasty legislation. They did
so in 1 88 2, by passing an act to prohibit Chinese immigration,
444 Foreign Intercourse. [§ 193
in the face of a treaty allowing it. The only recourse of an
offended foreign country in such a case is to protest that a
contract with it has not been observed.
193. The United States as a "World Power.
A discussion of our diplomatic machinery throws little light
upon the question of the real place of the United States in
international affairs. The original United States was a very
feeble power, even in the conditions of the eighteenth cen-
tury ; it was not even the strongest power in America when
it was created ; and to this day, England has greater territory
on the North American continent, besides many West India
Islands.
A wonderful growth in population and resources speedily
gave the United States the first place. By the annexations of
Louisiana, West Florida, and East Florida, it made itself supe-
rior to Spain ; after the Napoleonic wars France ceased to
exercise much influence in America ; and the British posses-
sions have never had such population or wealth as to vie with
the United States. Since 1815, therefore, the United States
has been undisputedly the leading power in America, and none
of the fragments of the former Spanish empire have ever shown
the capacity to come abreast of this country.
The introduction of steam navigation across the ocean in
the thirties brought us in time and cost of travel and transpor-
tation much nearer to Europe; and from about 18 15 to i860
we were negotiating commercial treaties with European powers
and with other American countries. In the forties and fifties
it looked as if the United States and Great Britain would ami-
cably combine to control the Americas : the Clayton-Bulwer
Treaty of 1850 was a recognition of England's equal interest
in an isthmus canal; the Reciprocity Treaty of 1854 greatly
stimulated commerce with Canada.
Meanwhile the United States was reaching out into the
Pacific. About 1820, missionaries went to the Sandwich
Islands; in 1844 we made the first commercial treaty with
§ 193] A World Power.
445
China; the annexation of CaHfornia immediately followed,
giving us a more advantageous Pacific front than that of
Oregon ; and in 1854 we broke in the crust of Japan, and be-
gan trade with that country. In 1861 the United States was
reaching east and west for trade and intercourse, and was
recognized as the power upon the whole most concerned in
Central and South American affairs.
The Civil War brought about difficulties and quarrels with
both England and France ; and it took ten years to settle
the two questions of the Alabama claims and Mexico. The
isthmus problem now returned ; and it became evident that
the American people had an ever stronger sense of their para-
mount interest on the continent. In the war of 1898, for the
first time the United States decisively entered the Caribbean
Sea by assuming the protectorate of CuTde and by annexing
Porto Rico, thus acquiring points of military vantage in the
Gulf of Mexico.
The United States in 1903 is by far the most powerful of
American nations : it is firmly seated in the Caribbean Sea,
is about to set foot on the isthmus, and has a vantage ground
on the Asiatic coast ; and it is accustomed to take part in
international discussions. With great physical capacities, with
a restless, energetic people who love to travel and to come into
new experiences, the United States, by its annexation of the
Philippine Islands in 1898, became an Asiatic power. Two
years later, in the Boxer insurrection in China, it joined the
other powers in recovering the ambassadors at Pekin, and
came forward again and again as the advocate of moderation
and of justice ; and its influence was successful. Our rela-
tions with Europe are those of peaceful trade ; but in any
great crisis which may come to mankind in the future the
United States must inevitably take a part as a world power,
and that part is likely to be in favor of peace.
CHAPTER XXIV.
FOREIGN COMMERCE.
194. References.
Bibliography: A. B. Hart, Manual (1908), §§ iig, 120, 221, 225;
Cyclop, of Am. Govt. (1914), I, 265, 344; II, 147; III, 441; Channing,
Hart, and Turner, Guide (1912), §§ 171, 181, 189, 190, 194, 200, 201,
253, 257, 258, 263, 268; E. R. A. Seligman, Economics (6th ed., 1914),
§ 210. See also references in chs. xii above, xxvi below.
Imports and Expoj^ts: R. L. Ashley, Am. Federal State (1911),
ch. xxvii; E. R. A. Seligman, Economics (6th ed., 1914), §§ 211-216.
— Statistics : Monthly Summary of Commerce and Finance; Foreign
Commerce atid Navigation; Statistical Abstract.
Immigration: J. R. Commons, Races and Immigrants (1907); P.
F. Hall, Immigration (2d ed., 1908); A. Shaw, Political Problems (1907),
ch. iii; H. P. Fairchild, Immigration (1913); Jencks and Lauck, Immi-
gration Problems (191 2); M. R. Coolidge, Chinese Immigration (1909);
J. H. Latane, America as a World Power (1907), ch. xvii; Industrial
Commission, Report (1900-1902), XV; XIX, §§ 957-1030; A. B.
Hart, National Ideals (1907), ch. iii; Cyclop, of Am. Govt. (1914), Arts,
on Chinese Immigration and Exclusion; Immigration; J. A. Riis, How
the Other Half Lives (1890); R. Mayo-Smith, Emigration and Immigra-
tion (1890). — Sources: Immigration Restriction League, Publications,
etc.; Commissioner of Immigration, Annual Report. See also references
to ch. i above.
Regulation of Commerce: The constitutional power is discussed
in the constitutional treatises, especially. Prentice and Egan, Commerce
Clause (1898); Cyclop, of Am. Govt. (1914), Commercial Policy and
Relations of the U. S.; Interstate Commerce and Cases; Interstate
Commerce Commission; Interstate Commerce Decisions; Interstate
Commerce Legislation; Interstate Law and Relations; Subsidies to
Shipping; E. McClain, Constitutional Law (1910), §§ 83-93; Interstate
Commerce Commission, Reports (1887-); J. Story, Commentaries
(1873, 1891), §§ 1061-1076; W. W. Willoughby, Constitutional Law
(1910), II, chs. xlii, xliii; T. M. Cooley, Constitutional Limitations
(7th ed., 1903), 851-859; H. C. Black, Constitutional Law (2d ed.,
1897), 186-197, 368-371; J. R. Tucker, Constitution (1899), §§250-
267,
446
§ 195] Regulation of Shipping. 447
195. Regulation of Shipping.
From the earliest days of the colonies, America has had a
large trade with other countries, and this trade was never so
flourishing and abundant as now. The federal constitution
wisely placed the whole control of foreign commerce in the
hands of Congress ; and this power extends to the means of
transport, to the movement of persons, and to the commodi-
ties carried, and is enlarged by federal jurisdiction over admi-
ralty cases, and by the exclusion of the states from tonnage,
and import duties, or export duties, other than for inspection.
Except across the Mexican and Canadian borders, all our
commerce must be carried on by vessels ; and in four ways
Congress has protected American shipping, (i) It has laid
discriminating tonnage duties. The tax was at one time eight
times as much on foreign vessels as on home vessels ; it is now
on the two classes 3 and 6 cents a ton, not to exceed a total
of 15 or 30 cents a year. (2) An act of 1793 prohibits for-
eign vessels from engaging in coasting trade ; and a Supreme
Court decision of 1901 held that trade with the dependencies
was also coasting trade. (3) Duties on materials for ship-
building are remitted, if the ships are to be used in foreign, or
in Atlantic and Pacific, trade. (4) The duties on imports are
somewhat increased if carried in vessels of a nation with which
the United States has no agreement against discriminating
duties.
In order to get the advantage of these and other privileges,
a vessel must be built within the United States and must be-
long wholly to a citizen or citizens of the United States, and
the officers must not be subjects of any foreign states. A for-
eign vessel wrecked on the American coast may receive an
American register, if the repairs amount to three fourths of
the value; and in 1892 Congress passed a special law author-
izing the registry of two large foreign-built steamers, the New
York and the Paris, for the American Line. These restric-
tions are sometimes evaded: occasionally a New England
448 Foreign Commerce. [§ 195
fishing vessel puts to sea with an American captain and a
Canadian cook, but when off soundings the cook commands
the vessel and the nominal captain cooks the meals.
The actual tonnage of American vessels is enormous, for it
includes the Great Lakes and coastwise trade as well as the
transoceanic. In 1789 there were 201,000 tons; in 1809,
1,350,000 tons, or about seven times as much; in 1839, over
2,000,000 tons; in 1861, 5,500,000 tons, which was the high-
water mark for 40 years; but in 1902 there were 5,800,000
tons. Yet the proportion of tonnage engaged in foreign trade,
which till 1809 was two thirds of the whole, has steadily
diminished, and in 1902 was only 900,000 tons out of 5,800,-
000 tons. At one time the United States carried over eight
tenths of all our foreign imports and exports ; it now carries
less than one tenth.
The reasons for these changes are many, (i) Until about
1870 the model craft of the world was the wooden sailing ship,
which could be produced more cheaply from the great Ameri-
can forests situated near tide-water than anywhere else in the
world : when iron ships began to come in, they could be built
more cheaply in England, where ore and coal lay near the
seaboard. (2) In both coastwise and foreign trade, steam
tonnage is now greater than sail tonnage ; and until within a
few years the English have been the most successful designers
and builders of marine engines and boilers, and have de-
veloped the triple and quadruple expansion engines, with
great saving of fuel. (3) The tariff upon ship-building ma-
terials has made it difficult to build American ships for sale
abroad, or to compete with foreign steamers in foreign trade.
(4) American ships carry larger crews and pay rather higher
wages. In 1902, however, there was a consolidation of Amer-
ican ship-building concerns, with the likelihood that they will
begin to build ships on a large scale in competition with the
world.
The government aids shipping by enacting rules of the road
at sea, in accordance with codes drawn up by international
§ i9S] Regulation of Shipping. 449
conferences. The pilots are licensed and pilotage controlled
by the states, except that pilots on coastwise steam vessels are
commissioned by the United States, and such vessels are not
liable tb state pilot charges. The United States builds and
maintains a magnificent system of lighthouses, buoys, and
light-ships; it has surveyed the whole coast of the conti-
nental area, and publishes seamen's charts ; it has an elab-
orate life-saving service, which patrols the coast, warns vessels
off dangerous shores, and, in case of wreck, by life-boats and
life-lines attempts to save the passengers and the cargo.
To prevent smuggling, an elaborate system of federal legisla-
tion provides for the formal entry and clearance of vessels ;
and all American vessels must be registered, and must carry
special forms of enrolment for coasting' and fishing purposes.
The government also requires vessels to carry regular ship's
papers, setting forth registry, port of departure, port of des-
tination, owners, officers, and so on. Another series of stat-
utes looks after the seamen, prescribing how they shall be
shipped, how their wages shall be paid, and what their food
and treatment shall be.
The most hotly-contested question with regard to American
shipping is that of subsidies. Besides certain bounties granted
to fishermen for the purpose of keeping up a nursery of Amer-
ican seamen for time of war, there have been three epochs
of steamship subsidies, (i) From 1847 to about 1858 the
Collins Line of American-built wooden steamers received for
a time $858,000 a year for bi-monthly service to Liverpool,
and the Bremen Line got $200,000 a year for monthly service.
(2) From 1866 to 1876 the Pacific Mail Steamship Company
received $500,000 a year for trips to China and Japan.
(3) An act of 1891 was intended to build up a fast line to
compete with the British White Star and Cunard Lines, and
also to stimulate trade with South America. Subsidy-earners
were divided into four classes, earning from 66 cents to $4 per
mile of outward voyage ; and under this contract an average
of $700,000 a year has been paid since the inauguration of the
29
45 o Foreign Comiiicrce. [§ 196
system. By the introduction of bills into Congress in 1901,
an attempt was made to provide a general system of subsidy
which would absorb about ^9,000,000 a year for an indefinite
period.
The arguments for a subsidy are : — ( i ) That it is not
creditable to the United States to permit other people to carry
its commerce. This argument of course applies equally to
the other end of the line, and would at most call for an equal
division of the traffic. (2) That a subsidy will act as a pro-
tective duty to both ship-building and ship-owning. It is,
however, difficult to see that profitable lines now owned by
Americans would make the country any richer by taking
American registers. The great shipping combination of 1902,
under the direction of Mr. J. P. Morgan, expected the
business of ocean transportation to be profitable without a
subsidy.
196. Regulation of ImmigrHtion.
The statutes on shipping contain elaborate provisions for
passengers, and especially for steerage passengers, who once
were shamefully crowded and ill treated. Since 1855 every
passenger vessel, foreign or American, must assign sufficient
cubic space for each person, and must allow suitable provi-
sions. There is also a special system of inspection of steam
vessels in order to prevent loss of life from defective con-
struction or from explosions ; and there are laws requiring
life-preservers, boats, and other protections for passengers.
These regulations apply to vessels leaving the United States as
well as to those arriving, but there is a special system of law
applied to immigrants.
In 182 1 Congress required every vessel entering port to
report the number of alien passengers, and after 1856 to make
a separate return of those who intended to make their homes
here ; otherwise, with the exception of the Alien Acts of 1798
for the expulsion of foreigners, no law limiting immigration
was passed until 1862. The temporary foreign visitors are
§ 19^] Regulation of Immigration. 451
now about 20,000 every year. Of permanent immigrants there
were about 8,000 in 1820, 84,000 in 1840, and 428,000 in the
great year of 1854. During the Civil War, immigration fell
off; but in 1866 it began on a large scale, and in the record
year 1882 789,000 foreign immigrants were registered as enter-
ing the country. In 1898 this number fell to 229,000, but in
1902 it was 649,000. In the decade from 1892 to 1902 about
3,800,000 foreigners settled in this country.
Relatively to population, the present number of immigrants
is about a half what it was sixty years ago ; and the railroads
make it easier to distribute 600,000 in 1902 than 100,000 in
1842. The serious matter is that there are now fewer immi-
grants from England, Scotland, English Canada, Germany,
Holland, and the Scandinavian countries, — that is, from the
people most like the native Americans and hence easiest to
amalgamate, — while there is a great increase in those from
Italy, the Russian empire, and Austro- Hungary, the people
most remote from our way of thinking. The English immi-
grants were 82,000 in 1882, and 14,000 in 1902 ; the Germans
were 207,000 in 1854, and only 28,000 in 1902 ; the Scandi-
navians were 105,000 in 1882, and 54,000 in 1902; the
Italians were 3,000 in 1876, and 178,000 in 1902.
The change of quality in the immigrants, and a prejudice
against the coming in of workmen to compete with those
already on the ground, have led to various attempts to restrict
immigration, (i) In 1862 Congress dealt with coolie immi-
gration, especially the Chinese. (2) In 1882 was passed an
immigration act prohibiting the coming in of idiots, lunatics,
convicts, and persons likely to become charges on the public.
(3) In 1885 came the Alien Contract Labor Act, which made
it unlawful for persons to enter the United States if under con-
tract to perform labor here when they arrived ; exceptions
were actors, artists, lecturers, singers, domestic servants, and
workmen skilled in new industries. This act has been difficult
to execute, because a contract laborer does not wear a badge
to distinguish him ; and attempts have been made to shut out
452 Foreign Commerce. [§ 196
clergymen and professional musicians on the ground that they
were contract laborers. (4) In 1882, in defiance of the
existing treaty, Congress passed an act prohibiting Chinese
laborers of any kind from coming in. (5) In 189 1 an immi-
gration act was passed prohibiting polygamists and diseased
persons from landing ; and an official, " the superintendent of
immigration," was put in charge of the service. (6) Many
people having taken alarm at the continued immigration of
foreigners, in 1897 a law for the exclusion of adults who could
not read and write, at least in their own language, passed both
houses of Congress, and was vetoed by President Cleveland.
(7) In 1882 there was imposed a tax on immigrants of
50 cents per head, which was raised to $1 in 1894 and to $2"
in 1903. (8) In 1903 the immigration of anarchists was
prohibited.
The apparent effect of these various laws is not great : in
1902 the exclusions were : convicts, 9 ; insane, 27 ; idiots, 7 ;
paupers, 3,944; contract laborers, 275; diseased, 709; other
causes, 3 ; total, 4,974. The real effect is much greater : first,
because unfit persons hesitate to incur the long voyage with a
prospect of exclusion ; and, secondly, because the steamships
must carry excluded persons back at the expense of the
owners, and hence they are active to keep out people who are
likely to be thrown back on their hands. In practice, the
test that a man shall be able to take care of himself is that
he shall have fifteen dollars in his pocket ; and friends in the
steerage often combine to form a pool, so that nobody shall
be devoid of this necessary sum.
Really effective has been the prohibition on Chinese immi-
gration. Beginning about 1855, 3,000 or 4,000 Chinese came
in every year until 1868, when large numbers were imported
to work on the Central Pacific Railroad ; then the numbers
began to increase, and in 1882 the immigration was 40,000.
Congress then interposed, with the result thai in 1885 only
22 Chinese were recorded as entering the country, and from
1880 to 1900 the total number of Chinese here decreased by
16,000.
§197] Movement of Foreign Commerce. 453
The reason for the exclusion of the Chinese was partly the
prejudice of European laborers on the Pacific coast, who
disliked the competition ; partly the demand of nearly the
whole community on the Pacific slope ; and partly the con-
viction of Congress that a large immigration would ultimately
lower the scale of living and unfavorably afiect the lowest
stratum of the white population. The Chinese already in the
country form useful household servants and laborers and
laundrymen ; but all experience goes to show that, although a
very habile people, they have so different a mode of thought
and so different a social organization that they never could
become a permanent part of an American community. The
legislation of Congress has saved the Pacific Coast from a
social difficulty akin to the negro question in the Southern
States.
197. Movement of Foreign Commerce.
One of the principal reasons for establishing the American
colonies was to furnish an outlet for European trade. As the
colonies had very few manufactures, they always depended on
Europe and especially on England for fine clothing, for manu-
factures of metals, and for many other commodities. Their
only means of paying for these importations was by exporta-
tions of domestic produce, especially timber, fish, grain,
tobacco, and pig-iron. A lively, though usually a forbidden,
trade to the Spanish and French West Indies brought hard
specie, which helped to adjust balances with England.
After the Revolution the United States became a heavy
exporter of food products, and during the Napoleonic wars a
large commerce was built up, in which the imports usually far
exceeded the exports. For instance, in 18 10 we imported
^61,000,000 and exported ^42,000,000; the difference prob-
ably represented the earnings of the American shipping trade.
Then came a period of heavy loans from abroad, which really
came in the form of excess of imports over exports. In the
forties and fifties, considerable trade balances were for the
454 Foreign Commerce. [§ 197
first time established in our favor, which meant that the old
debts, public and private, were being paid. Up to 1850 the
combined exports and imports were not over $300,000,000 in
any one year; but they began to run up, and in i860 were
1700,000,000.
The development of the internal railway system now made
it possible to bring forward immense quantities of breadstuffs
and other commodities from the interior; and a new and
enormous export business was built up in kerosene. Hence,
from 1876 to 1902 there has been only four years when the
trade balance was not in favor of the United States. In
1882 the combined export and import trade reached 1 1,500,-
000,000; and in 1902 it was $2,300,000,000, of which
$1,400,000,000 were exports and $900,000,000 were imports.
From the beginning. Great Britain has always been our best
customer, taking $549,000,000 in 1902; Germany is now
second in importance, taking $173,000,000; next come the
British provinces, with $11 1,000,000, and France with $72,000,-
000. We imported in 1902 $166,000,000 from Great Britain,
$102,000,000 from Germany, and $83,000,000 from France.
The exports to Central and South American countries, all
told, are less than $100,000,000, and the imports about
$170,000,000. The export trade to the various parts of
Canada is worth more than to all the rest of America, exclud-
ing the West Indies.
The most important exports are (i) raw cotton, of which
we sent out $291,000,000 worth in 1902 ; (2) breadstuffs,
principally corn, wheat, and wheat flour, to a value of $213,-
000,000 ; (3) provisions of various kinds, to a value of $200,-
000,000, or, if live cattle be added, about $230,000,000 ;
(4) manufactures of iron and steel, $99,000,000; (5) oil,
about $72,000,000. Of late years there has been a great
increase in the export of general American manufactures,
amounting, besides the articles already mentioned, to about
$200,000,000. Of the imports the largest items are cloth-
ing and materials for clothing, about $100,000,000 ; coffee,
§197] Movement of Foreign Commerce. 455
$71,000,000; chemicals, $58,000,000; hides, $58,000,000;
sugar, $55,000,000.
How is the surplus of exports over imports to be paid ? In
part by the expenses of the 120,000 annual American travel-
lers abroad, probably amounting to $100,000,000 a year; a
part of the surplus goes into ocean freights ; and foreign
investments in American railroads and other securities have
been transferred westward to help the balance. Yet enormous
sums remain to our credit abroad, which are practically a
capital controlled by American owners: for instance, in 1902
an American obtained large concessions for building new trac-
tion lines in London, the money for which was the proceeds
of exports.
A new movement of commerce seems likely to spring up
with the Pacific. In 1902 our exports and imports with China
were $25,000,000 -f $21,000,000 ; with Japan, $21,000,000 -f-
$38,000,000 ; with British Australasia, $28,000,000 -f $5,000,-
000. The trade to the Philippine Islands was about $5,000,-
000 + $7,000,000. In all, the Pacific region and Asia received
about $98,000,000 from us, and sent about $144,000,000 to ,
us. If China can develop her internal resources and build
railroads, this trade may be many times multiplied ; and it is
with ultimate reference to the Asiatic trade that the United
States took over the Philippines. Trade with our American
neighbors might also be increased : Central and South America
have a total trade of nearly $1,000,000,000, of which at
present we do not get one fourth.
It will be noted that the extension of American commerce
depends upon the tariff policy of the country. If a high tariff
is necessary in order to maintain domestic manufactures, that
result can be gained only by diminishing foreign trade, for
true protection prevents the importation of foreign goods ;
and since in the long run our exports must be paid for by
imports from abroad, whatever diminishes imports must in the
end cut down our market. A high tariff also provokes re-
prisals from other nations, which take steps to check impor-
456 Foreign Commerce. [§ 198
tations from America, either by laying high duties or by
passing vexatious inspection laws.
198. Our Commercial Neighbors.
The problem of foreign commerce depends upon many
factors, of which a chief one is the method of transporta-
tion. A century ago the approved type of merchant vessel
was a heavily-rigged sail craft, of from 200 to 600 tons,
owned by a private firm, or frequently by the country mer-
chants and farmers who built her ; and she went wherever
she could find a cargo. As there was no telegraph, and
mails were slow, the captain or the supercargo had large
discretion in buying and selling. Later on, regular packet
lines were established despatching ships at stated intervals;
and in the great days of the American clipper ships, in the
fifties, those regular lines reached to Australia, China, and
California, as well as to England and the continent of Europe.
Sailing voyages are recorded of fourteen days from land to
land across the North Atlantic.
These sailing ships have been partly superseded by steam
vessels : the Cunard Line in 1840 set up a regular bi-monthly
service from Boston to Liverpool, and lines were slowly estab-
lished from Baltimore, Philadelphia, and New York. Soon
appeared steamers, now generally called " tramps," which,
like the sailing ships, carried cargoes wherever they could find
them. In the course of the years since the Civil War, the
regular steamship lines have enormously expanded, till some
of them despatch three or four steamers a week. The owners
of the Pennsylvania Railroad and the Standard Oil Company
have established three lines of steamers, — the American Line,
the Red Star Line, and the Atlantic Transport Company, —
which of course are more likely to get full cargoes than if they
were not directly connected with exporting and transportation
companies. In 1902 a consolidation of seven or eight of the
largest ocean lines was brought about, with the expectation
that economy of service could be gained by common and
§ igS] Our Commercial Neighbors. 457
intelligent ownership. The tramp steamer, which represents
the old type of progressive and independent business, is now
actually derided and treated as a poacher in the domain
of foreign commerce ; but as long as the high seas remain
free the tramps will always exist to keep up competition in
transportation.
The development of steamships much affects our commer-
cial relations, because the improved and fast vessels bring the
countries of the earth much nearer to us in time and expense
of transit, especially in the great current of commerce from
the eastern coast of the United States to the western coast of
Europe. With the large steamers of to-day, however, foreign
trade is concentrated in the few harbors which can admit
deep-draft vessels ; hence Portland, Boston, Philadelphia,
New York, Baltimore, Newport News, Charleston, New Or-
leans, and Galveston get almost the whole of the transatlantic
trade. Conditions are similar on the other side of the water :
Liverpool, Southampton, London, Havre, Antwerp, Rotter-
dam, Bremen, and Hamburg receive most of the American
trade, except the rapidly-growing commerce into the Mediter-
ranean. The countries bordering on those ports must be our
best customers, and with them we should cultivate friendly
commercial relations.
In America our nearest commercial neighbors are the West
Indies. Porto Rico is ours, and Cuba is a protectorate of the
United States ; the Island of Hayti is politically so disturbed
that its trade is now of little account ; Jamaica is the only
other considerable West India island, and the United States
Senate declines to ratify a reciprocity treaty in behalf of that
island. Mexico is reached from the United States by land as
well as by sea : the railroads of that country have been con-
structed by American capital, and it is practically a com-
mercial dependency of the Union ; as Mexico develops, the
United States is likely to get more and more of its trade.
The Central American states are capable of a valuable coffee
and sugar and fruit trade, but are subject to revolutions and
458 Foreign Commerce. [§ 198
earthquakes, and have no sufficient railroads. The South
American countries are very distant : Rio de Janeiro is nearly
twice as far from New York as is Liverpool; and, until the
Panama Canal is constructed, the west coast of South America
is almost as far away as New Zealand. The United States has
shown no strong desire to encourage trade with any of those
countries by reciprocal reciprocity agreements.
Upon the northern border of the United States lies the
Dominion of Canada, which has water connections from the
maritime provinces to the coast of New England and New
York, and a common boundary about 3,500 miles long.
Trade with Canada has always been heavy, and from 1854
to 1866 was regulated by a special reciprocity treaty, under
which it greatly increased; but since 1866 the trade has
been subject to the same restrictions as that of other coun-
tries. The Canadian Pacific railroad system crosses the state
of Maine, and an American system crosses Ontario from
Buffalo to Detroit. There is a very free movement of popu-
lation across the border from French Canada into New Eng-
land, and from the Northwestern states into the Canadian
Northwest. The very nearness of Canada, however, has always
brought about boundary trouble and commercial jealousies,
and the two countries are not very neighborly.
CHAPTER XXY.
WAR POWERS.
199. References.
Bibliography: A. B. Hart, Manual (1908), §§ 121, 122, 227, 298;
E. McClain, Constitutional Law (1910), § 108; Channing, Hart, and
Turner, Guide (1912), §§ 36, 183, 191, 219, 233, 239, 265, 268.
Army and Navy: A. B. Hart, National Ideals (1907), ch. xviii;
Cyclop, of Am. Govt. (1914), Arts, on Army Regulations; Army, Stand-
ing; Militarism; Military and Naval Expenditures; Military Reser-
vations; Military Service, Compulsory; Militia; Pensions, Military
and Naval; L. D. Ingersoll, War Department (1879); W. W. Willoughby,
Constitutional Law (1910), II, chs. Lxi, Ixii; E. S. Maclay, U. S. Navy
(ed. 1901); E. C. Mason, Veto Power (1890), §§ 71-81. — Sources: C.
A. Beard, Readings in Ant. Govt. (1909), ch. xvii; P. S. Reinsch, Read-
ings 071 Am. Federal Govt. (1909), ch. xi; Memoirs of Winfield Scott
(1864); U. S. Grant (1885); W. T. Sherman (2d ed., 1885); P. H.
Sheridan (1888); J. E. Johnston (1874); J. M. Schofield (1897); James
Longstreet (1896); G. G. Meade (1913); biographies of military and
naval commanders; Annual Reports of the Secretary of War, Secretary
of the Navy, Secretary of the Interior, and their subordinates; pension
veto messages in J. D. Richardson, Messages of the Presidents (1896-
1899), especially in 1885-1889, 1893-1897. — Periodicals: Army and
Navy Journal; United Service.
Making War: W. Whiting, War Powers (1871); W. A. Dunning,
Essays on the Civil War and Reconstruction (1898), 1-62; Cyclop, of Am.
Govt. (1914), Arts, on War, Carrying on; War Power, Constitutional;
War Powers of the President; W. W. Willoughby, Constitutional Law,
(1910), II, §§ 401-404; J. B. Moore, Digest of International Law (1906),
VII, §§ 1100-1221; The American Nation (1904-1918), chapters in the
successive volumes on the American wars; treatises on the Constitution
and on international and military law; military and naval histories;
reports of the War and Navy Departments; general histories on the
wars of the United States; military maps may be found through A, B.
Hart, Manual, § 26, and Channing, Hart, and Turner, Guide (1912),
§ 33. See A. B. Hart, Wall Maps of U. S. History (1918).
200. History of American Wars.
The most serious and disturbing relation between nations is
war. To the national government are committed the great
powers of raising armies and navies, declaring war, and adjust-
ing the results by treaties of peace. The states are absolutely
459
460 War Powers. [§ 200
prohibited from keeping troops or ships of war in time of
peace, or from engaging in war unless actually invaded, — a
case which has occurred only once, in 181 4.
As soon as the colonies were founded, fierce conflicts began
with the Indian tribes, and from 1620 to 1763 the colonies
were engaged in all the contests of England with France,
Spain, and Holland. The American nation was born in the
midst of war, which the feeble organization of the Continental
Congress managed to conduct to a successful end; and in
that war, for the first and last time in our history, we had a
military ally. The wars of the United States since the Revo-
lution have been of four kinds : Indian, external expeditionary,
foreign, and civil.
(i) About 1775 began the series of Indian wars, which
were characterized by the usual Indian tactics of ambush,
surprise, and torture of prisoners. Sullivan forever destroyed
the power of the Iroquois in Central New York in the cam-
paign of 1779. From 1790 to 1795 the Indians fought
fiercely in the Northwest, and in 1791 St. Clair's army was
all but annihilated. In 18x1 came the most dangerous Indian
war in our history, — Tecumseh's league on the northwestern
frontier, — in which the battle of Tippecanoe was won by
General Harrison. General Jackson was engaged from 18 15
to 18 1 8 in wars with the Creeks of the Southwest. In 1832
came the brief Black Hawk War in the Northwest ; and in
1835 began the long and costly Seminole War, in which
about 100 Indian warriors defied the whole United States.
The great movement across the plains, beginning in 1849
and culminating in the completion of the Pacific Railroad in
1869, brought the people of the United States into hostile re-
lations with tribes theretofore little known. In 1862 came the
Sioux outbreak in Minnesota, which for a short time threatened
to sweep the whole frontier. There was repeated fighting on
the Upper Missouri River; and then came, in 1873, the won-
derful campaign of the Modoc Indians, who for a long time
held their own against forces twenty times their number.
§ 2ooj American Wars. 46 1
The last Indian tribes to make a determined resistance were
the Apaches in New Mexico and Arizona, and they were
finally subdued in 1886. From 1899 to 1902 a very similar
epoch of war with dependent races went on in the PhiUppine
Islands.
Altogether the Indian wars, many of which might have been
avoided by greater tact and a more rigid sense of justice, have
cost probably ^200,000,000 and 10,000 lives of white troops ;
but it is difficult to see how a fierce and warlike race, prime
owners of the soil, could ever have been brought within the
peaceful control of the government without a good deal of
hard fighting. The Indians are now so broken up into small
masses, and so surrounded with white population, that further
wars are impossible.
(2) The United States has first and last engaged in about
fifty armed military expeditions outside its own boundary.
West Florida, East Florida, Texas, and California, all saw
hostile American troops before they were annexed. Naval
expeditions have been repeatedly sent to the Pacific islands, to
Central and South America, and to Eastern Asia, usually as
substitutes for regular military operations, in order to obtain
settlement of controversies.
(3) Of foreign wars, the United States has had six: the
War of the Revolution with England, resulting in inde-
pendence; the two naval wars, — with France from 1798 to
1800, and with the Barbary Powers from 1802 to 1805 ; the
War of 181 2 with England, the most humiliating episode in
our national history; the aggressive Mexican War of 1846,
the purpose and result of which was the annexation of Cali-
fornia ; the war with Spain, lasting from April to August,
1898, which brought about the cession of Porto Rico and the
Philippines and the independence of Cuba.
(4) Most terrible of all our wars was the Civil War, which
lasted from 1861 to 1865, and, at an expense of $7,000,000,000
of property and about 700,000 lives, established forever the
principle that the United States is one nation.
462 War Powers. [§ 201
201. The Army.
Of the two branches of the service, the army has always
been the more important, because more numerous than the
navy, because the only force available for fighting the Indians,
and because in the four protracted wars — Revolution, War of
18 1 2, Mexican War, and Civil War — the decisive actions
were on land. At the head of both army and navy is the
president, who is titular commander-in-chief, though no presi-
dent has ever actually taken the field at the head of an army.
He exercises his power by designating officers to particular
commands, and by giving them instructions. Under the
president, the civil head of the administration is the secretary
of war. Contrary to continental practice, our minister of war
is almost never an army officer ; and in several cases, as in
1 8 14 and i860, he has been obliged to resign from want of
practical experience in- the profession.
The body of officers in the army are appointed by the
president and confirmed by the Senate. The military school
at West Point has sometimes been insufficient to supply the
need, and lieutenants and even higher officers have been ap-
pointed directly out of civil life ; in many cases men are pro-
moted to commissions from the ranks. In time of war large
numbers of officers have to be commissioned, and appoint-
ments are then made out of the officers of militia regiments,
or directly out of civil life.
During peace it is the tradition that officers shall be pro-
moted as vacancies occur, so that any lieutenant who lives
long enough and does not get court-martialled may become
a colonel, or, if selected by the president, a brigadier-general or
a major-general. Indeed, army officers have a fixity of tenure
not given to other executive servants : by an act of 1866 it is
provided that no army or navy officer shall be removed in
time of peace except by court martial. Nevertheless, if the
president appoints and the Senate confirms another man to fill
the same position, the previous incumbent is thereby removed ;
§ 2oij The iliiny. 463
and in time of war the president may summarily remove,
subject to later investigation. In peace, resignations are
accepted unless made to avoid court martial. During war,
resignations are frequently denied ; but at the beginning of
the Civil War about one half of all the military and naval
officers resigned their commissions because southerners.
Inasmuch as vacancies by death and resignation are few,
an officer may not get above a captaincy till he comes to be
fifty years old. In the army, by acts of 1861 and 1862 and
subsequent amendments, the president must retire from active
service any officer who is sixty-four years old, and may retire
an officer who has served forty-five years or is sixty-two years
old ; and any officer may demand retirement when he has
been forty years in the service, or has become disabled, and
may request retirement after thirty years of service.
In the navy compulsory retirement comes, except for the
admiral, when an officer is sixty-two or has served forty-five
years, and retirement may be requested after forty years of
service. Further, the law of March 3, 1899, provides that if
the v'acancies in any year are below a certain number in each
grade, the president selects from those officers of the rank of
captain and below who desire retirement, or orders the invol-
untary retirement of such officers of the rank from captain
to lieutenant as are pronounced by a board of rear-admirals to
be most unfit for active service. This measure is intended to
provide for the proper promotion of the best officers, by weed-
ing out the least efficient. Officers thus retired receive the
rank of the next higher grade. Retired officers, during the
remainder of their lives, receive three fourths of the pay of their
rank at retirement. In many cases the disability is not such as
to prevent service in other capacities, so that retired army and
navy officers are often active business and professional men.
The grades of officers are general and lieutenant-general
(titles which have been given as honorary distinctions to men
of the highest service, such as Winfield Scott and U. S.
Grant), major-general, brigadief-general, colonel, lieutenant-
464 War Powers. [§ 201
colonel, major, captain, first lieutenant, second lieutenant.
The pay runs from ^13,500 a year for a general, down to
^1,400 for a second lieutenant of infantry. Quarters are fur-
nished for officers and their families, and there are some other
privileges which reduce personal expenses.
The army of the United States numbered but a few hundred
men in 1789, and has remained small except during actual
war. In 1898 it was only 26,000 men and 2,175 officers, a
number barely sufficient for garrison duty and for keeping
order. After the Spanish War, by an act of February 2, 1901,
the army was fixed at 3,820 officers and not to exceed
100,000 men. In 1903 there were 65,000' enlisted men.
There are now i lieutenant-general, 7 major-generals, 24 briga-
dier-generals, and 102 colonels, besides about 100 officers
retired with the rank and retiring allowance of a lieutenant-
general, major-general, or brigadier-general.
The army is recruited out of men between the ages of
eighteen and thirty-five, who satisfy a severe physical exami-
nation and are more than 5 feet 4 inches high. The material
coming forward is on the whole good ; and foreign officers
who have observed American troops in the field usually praise
their intelligence and courage, and approve the discipline.
Life upon small frontier posts is very trying to both officers
and men, and in time of peace desertions are alarmingly
numerous. The pay of private soldiers is ^13 a month, rising
to ^16, in addition to barracks and food. The actual cost of
maintaining a full regiment of 1,000 men for a year, including
pay of officers and men and the expense of administration,
is about ^1,000,000, which is five times the cost of a Ger-
man regiment of the same size.
The ordinary peace duty of the army is to garrison the mili-
tary posts and fortifications, nearly all of them on the seacoast;
to protect government officers and property in Washington
and elsewhere ; and, above all, to act as a reserve force in case
of riots and insurrections which the state authorities cannot
manage. The army and n^vy are governed by elaborate
§ 2oi] The Army. 465
codes called Articles of War, and " Regulations " which deal
with organization and discipline, prescribe rules for behavior
in the field, contain humane provisions for the benefit of non-
combatants, and provide for courts martial (the death penalty
to be applied only with the specific approval of the president).
One of the problems in both military and naval service is
the distinction between the staff and the line. Modern
armies and navies, especially the German, have a special
branch of the service called the " general staff," which has
centralized control over all the administrative services, such
as commissariat, transportation, ordnance, clothing, medicine
and hospital, and intelligence. In Berlin, young ofificers are
selected by fierce competition, and then are specially trained
for this important service. The German general staff also
works out, in advance, plans for every conceivable campaign :
-for any contingency, the necessary orders for concentration
of troops on the frontiers are already written, and on forty-
eight hours' notice large bodies of organized troops would be
on their way to meet the danger.
The administrative system of the United States army has
been inferior in two respects, (i) The different branches
were placed under bureaus independent of each other : for
instance, the commissary-general had to provide supplies, but
could not compel the head of the transportation department
to carry them. (2) The "staff officers " are not trained es-
pecially for their posts, but are detailed out of the "line," —
that is, out of the ordinary service, — and usually serve but a
few years in their administrative posts. Every war in which
the United States has been engaged, and especially the
Spanish War, has shown the folly of this system : line and
staff officers are jealous of each other; staff appointments
are coveted, and political pressure is often used to secure
them ; and neither the secretary of war nor the head of the
fighting forces has sufficient control over the administrative
part of the army.
30
466 War Powers. [§ 202
By an act of February 14, 1903, a general staff was at last
created. The staff of forty-five officers, detailed from the
army at large, is to prepare plans of defence and mobiliza-
tion, investigate and report on the efficiency of the army,
coordinate the action of the different departments, render
professional aid to the superior officers, and perform such
other military duties as the president may require. The chief
of staff has supervision over both the line and staff, and has
in general, with an enlargement of powers, the duties of the
commanding general.
A part of the American military and naval staff is an intel-
ligence department, of which the public naturally knows little.
As an incident of such a collection of information, it is the
habit of the government to send officers as military attaches
to our foreign legations, that they may pick up new ideas.
Unfortunately, American officers are often detailed who can-
not speak the language of the country to which they are sent,
and hence are not in a position to improve their opportuni-
ties. When war breaks out anywhere in the world, it is also
common to send some distinguished American officer to ob-
serve it on the ground : in 18 71 General Sheridan went to
France, and in 1878 General Hazen to the Russo-Turkish
War.
202. The Navy.
The navy is in many respects a very different service from
the army, principally because the tactical unit of the navy is a
ship, which must be kept up, coaled, drilled, and exercised in
time of peace exactly on the same footing as in time of war.
A second difference is that the conditions of naval warfare
in the last forty years have radically changed, and the navy
has responded to the new necessities.
During the Revolution, Congress succeeded in fitting out
several small squadrons, but there was no permanent organ-
ized navy ; most of the fighting at sea was done by priva-
teers, which were ordinary merchant vessels transformed into
cruisers. After the Revolution was over, the United States at
§ 202] The Navy. 467
one time had not a single armed ship on the ocean. Con-
struction began in 1794, and in the war with France in 1798-
1800 there were a few ship duels. The new vessels were very
serviceable in the war with the Barbary pirates (1802—1805),
and during the War of 18 12 the Constitution, the Constella-
tion, the United States, the Essex, the Enterprise, and the
little Wasp showed that they could successfully fight British
vessels of their class; but until after the War of 18 12 the
United States never possessed a single one of the great three-
decker ships of the line, which were the standard battleships
of that time.
The American navy remained small, and when the Civil
War broke out we had not half a dozen first-class steam
cruisers ; and one of the best of these, the Merrimac, was
transformed into the Confederate ironclad, the Virginia, which
began to destroy our wooden fleet, and was successfully resisted
in 1862 by the little iron Monitor. This duel led to a new
era in naval architecture : we built a fleet of river gunboats
and sea-going ironclads. After the war, the United States
navy was again allowed to become antiquated. About 1883
began the construction of vessels of a modern type ; and the
United States has now, either completed or under construc-
tion, a fleet of powerful ships, surpassed in number, guns,
and men only by those of Great Britain, France, Russia,
and Germany.
The general organization of the navy is similar to that of
the army : the officers are appointed, commissioned, and
retired in the same way, though the number is smaller.
There are now i admiral and 24 rear-admirals, besides 58
rear-admirals on the retired list, and 5 officers retired as com-
modores ; then come captains, commanders, lieutenant-com-
manders, lieutenants, Heutenants (junior grade), and ensigns;
besides officers of the medical, pay, and engineer corps, and
various officers of construction and instruction employed on
shore duty. The pay of officers ranges from $13,500 for
admirals down to 1^1,400 for ensigns ; the pay of seamen
468 War Powers. [§ 202
varies according to age and experience, from ^35 per month
for firemen of the first class, to $g for apprentices of the third
class. About 70 per cent of the enUsted force in the navy
are native-born, and about 90 per cent citizens of the United
States. At present the authorized strength of the navy is
about 29,000 men and 1,676 officers.
The largest and most powerful vessels of the navy are of
the Maryland and Pennsylvania type, each to carry 777 men
and 45 officers ; and of the Oregon and Kearsarge type, with
armor up to 18 inches thick. Such a vessel ready to receive
its men costs from $5,000,000 to $6,000,000. The vessels in
commission December i, 1901, were about 100, of which 20
or more were powerful battleships.
Administratively the navy is better organized than the army.
During the Spanish War, the secretary of the navy designated
the so-called " Board of Strategy," which was a council of
naval officers of distinction acting as a general staff for the
discussion of naval movements. Its place is now taken by a
permanent " General Board."
Both army and navy make special details of officers, not
only for staff service, but for a variety of inspection services
away from commands. The navy details are mostly for shore
service. Many army and navy officers, at sea or detailed,
carry on professional study, invent weapons and fortifications,
and advance military science.
In recent years a peculiar difficulty has arisen in the navy
because a steam-fighting vessel, besides its engines, contains
delicate machinery of every kind, — ammunition hoists, tor-
pedo tubes, special engines for opening and closing shutters,
for rotating turrets, and for handhng coal. The care of such
a complex vessel requires highly-skilled direction, for which
the naval academy at Annapolis has for some years prepared
engineers. These graduates knew little of ordinary sea duty ;
on the other hand, the navigating officers, responsible for
fighting a ship in action, might be wholly unable to judge
whether the engines were in suitable condition for battle. By
§ 203] Education of Officers. 469
an act of March 3, 1899, Congress provided that all naval
ofificers should have training both in seamanship and in en-
gineering, so that they might be able to supervise both of
these important parts of modern naval warfare.
The functions of the navy are simple : about half the vessels
in commission are sent to foreign waters for the protection of
American interests, and render important service by explora-
tions of various kinds ; and, in case of need, marines and
" jackies " are landed in distant countries hke China or Cen-
tral America. Naval officers have more contact with the rest
of the world than military officers : they constantly see new
types of vessels and guns, and bring home new ideas ; three
years is considered by the practice of the department long
enough for sea duty, and then other officers are sent out ; the
home squadrons move about from port to port, exercising the
men, and making people acquainted with the service.
203. Education of Officers.
To provide the necessary body of educated officers, the
federal government has founded several institutions. In 1802
a military school was established at West Point, and has
become one of the most eff'ective places of its kind in the
world. It has grown in numbers as the country has ad-
vanced, has a large plant of buildings and necessary grounds,
and has turned out several thousand excellent officers. The
effectiveness of the school is shown by the fact that, in all
the wars from 181 2 down, the graduates of West Point have
come to the front : all the greatest commanders in the Civil
War — Grant, Sherman, Thomas, Sheridan, Lee, A. S. John-
ston, Joseph E. Johnston, and Stonewall Jackson — were West
Pointers. Many graduates eventually get into civil life, and
are much esteemed as civil engineers, administrators, and men
of affairs.
The cadets of West Point are appointed by the president,
but under the law must be nominated by members of the
House and Senate; there is one for each congressional dis-
470 War Powers. [§ 203
trict and territory, besides two for each state, and thirty at
large appointed by the president. Appointment means merely
that a boy will be entered if he passes the somewhat severe
entrance examinations. In 1902 482 cadets were authorized,
and the school had about 425 present, but in 1903 the au-
thorized number was increased for ten years to 511.
Once admitted, cadets become officers of the United States
army, and receive $540 a year as pay. They are organized as
a military body, with cadet officers appointed for merit by the
superintendent of the institution ; they have rigorous drill and
thorough military discipline, besides annual camp experience
for about three months. The teaching force is about seventy
strong, partly of detailed officers and partly of permanent
professors ; and the curriculum is narrow, but thorough. The
constant effort of the instructors is to- train the men to obey
orders, and at the same time to bear responsibility and to
speak the truth. About half of the students admitted cannot
stand the pace, and drop out before the end of the four years'
course ; those who persevere and graduate are all immediately
commissioned as second lieutenants.
The need of a similar school for the navy was long felt, and
in 1845 George Bancroft, then secretary of the navy, designated
certain officers to give naval instruction at Annapolis ; and
thus without a law began the Naval Academy. It has since
been organized by statute on about the same basis as West
Point. Nominations are made by members of Congress, until
19 13 two for each senator, representative, and delegate, and
two from the District of Columbia, while the president has five
appointments at large each year. The course is six years, two
of them at sea, and now includes training in engineering.
Corresponding to the West Point camp is the annual cruise of
the cadets. All the naval officers are graduates of the Naval
Academy, except the few who have come in through the volun-
teer navy, and a very few who have been promoted from the
" warrant offxcers." The constant shifting about from one ship
to another gives the naval officers personal acquaintance with
§203] Education of Officers. 471
each other, so that there is a much stronger tradition of com-
mon education and of esprit de corps than in the army.
An attempt at a kind of military education has been made
by the state agricultural colleges, which are required to keep
up military drill ; but in most cases it is a perfunctory matter,
affording no real military training. Private military schools
throughout the United States accustom boys to military
routine ; and graduates of those schools are likely to get
commissions in the volunteer army in case of war. The
government also maintains post-schools for the education of
privates, especially those who cannot read or write.
The highest institution of military training in the country is
the Naval War College at Newport, founded by Admiral Luce
in 1885. This institution, at the head of which is always a
highly-experienced and competent naval officer, gathers every
year about twenty-five of the best officers in the navy and
marine corps for the practical study of naval problems ; they
work out plans of campaign, and by the use of the " krieg-
spiel" — a practical means of actually going through the
details of a campaign on a small scale — they get a valuable
training in the most difficult part of their profession, the dis-
position of ships and troops in warfare. A similar Army War
College was established in Washington in 1902.
Next to a better organization of the staff, the greatest need
of both army and navy is practical training in the handling of
large bodies of troops. The technical unit of the army is the
regiment of 1,000 men; but within the hmits of the United
States there is not a single post where a whole regiment is
stationed. Gray-headed brigadier-generals have sometimes
never seen a whole regiment together under their own com-
mand ; and the Spanish War showed that men in command of
brigades or divisions did not know how to handle 5,000 or
10,000 troops, even in practice. What we need is to assemble
every year 20,000, 30,000, or 40,000 troops on the plan of the
foreign manoeuvres, to make long marches, and to go through
sham battles ; and, since our future wars are likely to include
472 War Powers. [§ 204
operations beyond seas, the navy should be called on to con-
vey animals, guns, wagons, tents, and other materials from one
part of the coast to another. In this way, both branches of
the service would get accustomed to the difficult operations
of ferrying an army and landing in force.
204. The Militia.
The whole tradition of the United States is against a large
standing army, because in the experience of mankind such
armies have proved the bulwark of despotism : as late as 185 1
Louis Napoleon made himself the emperor of the French by
winning over the army. Hence the colonies had no permanent
force of troops, but depended upon the able-bodied men of
the community. In the Revolutionary War was made the
first attempt to create a national army; but the states dis-
liked it, and most of the forces throughout that war were
regiments enlisted and officered by the states. This system
was continued by the federal constitution, which authorizes
states to train militia according to the discipline prescribed
by Congress, and to appoint officers.
Technically, the militia, or citizen army, is made up of all
the able-bodied men of the state, every one of whom is liable
to military duty. A century ago, " training-day " brought out
most of the men of the community ; they had a little mihtary
drill and a great deal of hard liquor. In the course of years
the states have all given up any attempt to organize the whole
body of available men, but keep up a few regiments, especially
in the large cities. The organization is in many ways like that
of a club : men join and resign much at their pleasure ; the
minor officers are elected by the men, the higher officers are
appointed by the governor or by' a board of officers. In a few
states, as Massachusetts and New York, there are regiments
enough to make a brigade, and annual encampments are held,
in which the men live in tents and have company and regi-
mental drills and brigade evolutions.
The main immediate service of the militia is, however, to act
§ 204] The Militia. 473
as a state police force on call of the governor in case of riot or
insurrection. The nominal militia force is sufficiently large, —
11,000,000 men liable for military service in the states ; about
200,000 enrolled in organizations ; general officers to the num-
ber of 1,000 ; but the powerful state of New York has actually
only 14,000 militiamen, Illinois has 7,000, and Massachusetts
something over 5,000. There are also naval militias in nineteen
seacoast or lake states, with about 5,000 men and officers. At-
tempts have been made to give them militia experience on board
regular cruisers ; but so far they have had little training.
It is in war that the militia ought to be most useful, but in
all our wars the defects of the system have been painfully
manifest. The states have frequently shown themselves ineffi-
cient in recruiting and organizing troops ; the officers are com-
missioned by the governors, in many cases because elected by
the men of the companies ; and when brought into the federal
service the whole material has had to be worked over, so as
to get rid of incompetents. The arms and equipment of the
militia when they enter the service are scanty and imperfect.
Then, too, the states will not keep their regiments full during
war, because they prefer to organize new regiments with new
sets of officers. In the Civil War, hundreds of regiments in
1864 were reduced to 200 or 300 men each, with an unreason-
able number of officers; General Sherman, in 1862, com-
plained, " More than one half the paper army is not in the
enemy's country." With such forces, it was difficult to enforce
the plainest principles of discipline.
In the War of 1898 the same difficulties were encountered :
the regiments from some states came fully armed, equipped,
and drilled, ready for immediate service, while others were raw
levies unaccustomed to discipline and very impatient of it;
months had to be spent in instruction camp ; and the men
were not used to caring for themselves on the march, as regu-
lars can do. A better system would be for the general govern-
ment, in time of war, to organize a service of auxiliary regulars,
enlisted for the war, officered so far as possible. by men of mill-
474 War Powers. [§ 205
tary experience, appointed by federal authority entirely, and
numbered as United States regiments. The " Dick Law "
of Jan. 21, 1903, provides for more efficient organization and
inspection of the militia.
205. Carrying on "War.
The existence of war is commonly set forth by act of Con-
gress. In 1846 President Polk asserted that " war existed by
the act of Mexico " ; but Congress nevertheless made a formal
declaration of war, as it did in all the other foreign wars except
that of 1798. The importance of the question is simply that,
after a declaration of war, every subject of the foreign country
becomes an enemy. In 1861 Congress took the ground that
there was no war, but simply military force used to execute the
laws of the Union ; but by proclamations of blockade in April,
1 86 1, the president practically recognized the e}fistence of war,
in which each of the parties had the usual belligerent rights.
In its various wars the United States has had about the fol-
lowing number of enlistments: Revolution, 230,000; War of
z8i2, 145,000; Mexican War, 44,000; Civil War (Northern
side), nearly 3,000,000 enlistments involving more than 2,000,-
000 individuals; Civil War (Southern side), 2,000,000 enlist-
ments involving 1,000,000 individuals; Spanish War, 300,000.
In time of war, troops are raised in three different ways.
(t) By enrolment of regular United States troops. Until 1898
Congress was at all times very reluctant to increase the federal
army; but in 1899 it authorized 100,000 soldiers and 25,000
sailors, in 1901 it established a permanent peace footing of not
more than 100,000 soldiers, and in 1903 increased the navy
to about 29,000 men.
(2) By calling on the states to furnish troops, under the
clause authorizing the president to call out the militia " to sup-
press insurrections, repel invasions, and execute the laws of
the Union." In 181 2 several New England states refused to
permit their militia to obey the call, on the ground that there
was no invasion; and the administration was unable to help
§ 205] Carrying on War. 4^5
itself. The federal government appoints the general officers ;
but a considerable number of the state generals always receive
federal commissions, and in all our six wars many civilians
have received commissions as generals.
Militia and civilian officers do not always work well. When
Washington came to Cambridge in 1775 he wrote thence to a
friend that he had " made a pretty good slam " among the
militia generals he found there; but in the War of 181 2 the
two most distinguished soldiers were Jacob Brown of New York
and Andrew Jackson of Tennessee, neither of whom had expert
military training. In the Mexican War, however, there were
plenty of trained officers, and some civilian commanders, among
them Franklin Pierce of New Hampshire, later president of the
United States.
In the Civil War scores of civilians were made generals,
passing over experienced soldiers who had captains' or majors'
commissions in the regular army ; and with few exceptions the
civilian generals proved incompetent to handle large armies.
The conspicuous example to the contrary was General Nelson
A. Miles, who worked up to a high position in the army. The
intrusting of large commands to men of no previous military
experience caused the loss of scores of thousands of lives and
of hundreds of millions of treasure, and prolonged the war for
many months.
(3) The third method of raising troops is by conscription
or draft. Every man is bound to render military service
when the country needs him, and it is legal to select by lot
such part as may be needed. In 1863 a call was made for
troops, apportioned among the states according to their popu-
lation ; in case a state failed to enlist its quota, a public draw-
ing was held. Many states make up their quota by money
bounties and other inducements ; in others the drafts were
held, and the result in New York City was the worst riot ever
known in the history of the United States. Of the 200,000
men drafted at that time, large numbers proved to be physically
incapable of service ; others paid money compensations ; and
476
War Powers. [§ 205
others hired substitutes. In one lot of 15,000 men drafted,
onl)/ 1,300 were actually enlisted.
War at its worst is the most awful of calamities. Till within
about two centuries, invading armies habitually pillaged every-
thing that they could lay their hands on, burned the cities,
violated the women, tortured prisoners, murdered men, women,
and children indiscriminately, and sometimes swept off the
whole population into slavery. The growth of a spirit of
humanity has brought about an agreement among civilized
nations that the purpose of war is simply to destroy the
enemy's military power ; hence the wounded, the prisoners,
and the non-combatants must be treated with humanity, and
private property may be seized only if it can be made available
for immediate military operations.
This milder spirit is reflected in our Articles of War : pil-
lage, rape, torture, the wanton burning of houses and cities, the
use of poisoned bullets, are all forbidden. Nevertheless, what
is allowed is severe enough : an invading army may sweep the
country bare of every house or tree that might shelter an
enemy or give him sustenance ; it may bombard an inhabited
city ; it may, if necessary, sweep up and concentrate the in-
habitants of a district in order to prevent their giving aid and
comfort to the enemy. During the Civil War the lower
Shenandoah Valley was raided from end to end ; standing
crops and every mill in the valley were destroyed to prevent
their making flour for the enemy. Above all, the commander
of the army may declare martial law, which annuls the pre-
viously-existing government and makes his will the sole au-
thority ; he may then arrest any person within his Hnes and
condemn him to death by court martial.
In the whole history of the world, no great war was ever
carried on with such consideration for non-combatants as the
Civil War. Rape was almost unknown ; torture of prisoners
was exceedingly rare, and probably never occurred under the
authority of any general officer ; there was a good deal of
looting on both sides, but no scenes of rapine and despair
§ 2o6] Pensions. 477
such as have usually occurred at the taking of a city. In the
Indian wars and in the PhiUppine War, both carried on at great
distances with crafty and savage enemies, there were occasional
acts of cruelty to prisoners and non-combatants, none of which
were authorized or approved by the head of the army.
Congress may make rules for captures by land and sea.
This involves the right to seize the merchant vessels of an
enemy on the high seas (about 25 captures of that kind were
made in the Spanish War) ; it also involves the right to search
neutral vessels, in order to discover whether they are carry-
ing contraband of war or are otherwise aiding the enemy.
During the Civil War 1,504 vessels were captured or destroyed
while trying to enter or leave blockaded ports.
The present necessities of the American army and navy are
two. (i) An organization and administrative system which
shall be as efficient as the German or the Russian. This re-
quires a trained general staff, with authority over all the
special branches of military administration. (2) A recogni-
tion of the fact that the militia is costly and vexatious, and
weakens the national power of offence and defence. We
need really efficient and trained state troops for state pur-
poses ; we need more generous authority to enroll federal regi-
ments ; we need the selection of none but trained soldiers for
responsible command of armies ; we need field manoeuvres by
land and by sea ; we need inflexible maintenance of a humane
treatment of non-combatants, without forgetting that the object
of war is to put an end to hostilities.
206. Military and Naval Pensions.
The cost of the army and navy of the United States has
become startling: in 1801 it was ^4,000,000; in 1814, a war
year, ^28, 000,000 ; in 1865, ^1,220,000,000; in 1901, a year
of international peace, it was more than ^200,000,000, or
about two fifths of the whole national expenditure. To this
sum should fairly be added the payments for military pensions,
which down to 1861 were not more than a few milHons a year.
478 War Powers. [§ 206
but which since 1892 have never fallen below ^130,000,000
a year. The Continental Congress promised that officers and
men should be rewarded for their service, and the officers
were voted a cash bonus amounting to full pay for five years ;
the common soldiers of that war and of the succeeding In-
dian wars, the War of 181 2, and the Mexican War were all
rewarded with grants of land.
Besides these grants for service, old soldiers who were
actually disabled and unable to support themselves have from
the beginning received small money pensions during the re-
mainder of their lives. Of course the Revolutionary soldiers
are all long since dead, and in 1901 there was only one sur-
vivor of the War of 1812 ; but four widows of Revolutionary
soldiers still draw pensions.
When tke Civil War broke out, a specific promise was made
by Congress that men disabled by disease or wounds should
be supported, and the localities in many cases pledged them-
selves that the families of men who fell should be cared for.
These promises were fulfilled: an act of 1862 granted pen-
sions of from $S to ^30 per month to men disabled in the
service, and to their widows after their death. The rates of
pensions were a little increased from time to time, and special
allowances were granted to men who had severe disabilities.
In 1879 ^" act was passed authorizing any person entitled to a
pension to claim arrears from the date of his discharge ; this
offered a premium of about ^1,000 for new claimants, and the
payments immediately jumped up from $27,000,000 in 1878
to $57,000,000 in 1880.
So far pensions had been granted only to soldiers disabled
in the service and their relatives. In 1886 a bill passed both
houses, but was vetoed by President Cleveland, granting
pensions of $6 to $12 per month to all persons who had
served in the army for ninety days and were unable for any
reason to earn a support by manual labor. This was the first
time that the principle was acknowledged by Congress that
every person who had served in the Civil War was entitled to
§ 2o6] Pensions. 479
aid from the government if he needed it. Widows of old
soldiers are entitled to pensions, no matter what the cause of
death, provided they are without means of support other than
their daily toil, and (since 1900) have an annual income less
than ^250. This bill became an act in 1890, cost ^500,000,000
w^ithin ten years, and more than 550,000 persons are now
drawing pensions under it. In 1901 there were on the rolls
736,000 disabled persons, and 234,000 widows of soldiers.
About 7,000 special pension acts have been passed since
1867, each of them granting a pension to some individual
who could not bring the necessary proof before the Pension
Bureau. Some of these cases were meritorious, the evidence
having been destroyed ; others were undeserving, — as, for
instance, a bill granting a pension to the widow of a former
soldier who was accidentally shot by a neighbor in the effort
to shoot an owl ; and cases have occurred of the grant of
arrears of pension to the amount of ^4,000 to the " widow "
of a soldier who had married again after her husband's death.
By acts passed from forty to sixty years after the end of the
War of 1 8 1 2 ahd of the Mexican War, all survivors of those
wars were granted pensions ; and it is probable that a few years
hence efforts will be made to do the same thing with the sur-
vivors of the Civil War, eight tenths of whom appear to be
already on the roll.
The difficulties with the whole pension system are (i) That
enormous sums are involved: since 1866 ;?2, 700,000,000
has been paid in military pensions, a sum nearly equal to
the original cost of the war. (2) Pensions are freely granted
to men who served but a few weeks, who never saw a battle,
and who never suffered from wounds or disease. (3) Those
who lived through the Civil War are aware that the soldiers
were not the only persons who made sacrifices for the sal-
vation of the government. The hardships and suffering
were shared by the whole nation : wives, sisters, children,
sweethearts, suffered privations and anxieties ; one brother
often supported the family so that another brother could go
tp the war.
480 War Powers. [§ 206
It is right that the old soldier should be preserved from
want, and that the wife of his youth should be cared for if
he is taken away ; it is not right that men able to care for
themselves should be receiving the bounty of government.
Some of the pension cases border on the ludicrous : as, for
instance, that of a man who was receiving ^100 a month for
total disability, and also a salary of ^5,000 a year as senator
of the United States ; and of a man who received a pension for
total deafness, and was employed in one of the departments
in Washington to attend the telephone.
In addition to money pensions, the old soldiers have many
privileges. Many of them received heavy cash bounties when
they went into the service ; the United States has provided
a number of Soldiers' Homes throughout the country, to
which any man who has served is admitted if. he so desires ;
some of the states and localities regularly appropriate money
for the support of soldiers and their families ; and soldiers
have a preference over other persons in appointments to the
civil service.
Part IX.
Commercial Functions.
CHAPTER XXVI.
ORGANIZATION OF COMMERCE.
207. References.
Bibliography: D. R. Dewey, Financial Hist. (1915), pp. ix-xxix;
C. D. Wright, Practical Sociology (1909), §§ 123, 134, 144, 150; W. B.
Munro, Bibl. of Municipal Govt. (1915), §§ 36-38; Macy and Gannaway,
Comparative Free Govt. (1915), 723 (cases); E. R. A. Seligman, Economics
(6th ed., 1914), ch. references in pts. iii, iv; A. B. Hart, Manual (1908),
§§ 33j 34) iiQ) 120, 144, 161, 296; Channing, Hart, and Turner, Guide
(1912), §§ 171, 182, 189, 190, 194, 201, 216, 220, 253, 256, 269.
Commerce in General: Cyclop, of Am. Govt. (1914), Art. on
Economic Hist, of the U. S.; T. M. Cooley, Constitutional Law (3d ed.,
1898), ch. iv, §§ 2, 4-10; The American Nation (1904-1918), chapters in
the successive vokmies on commercial problems; Industrial Commission,
Reports (1900-1902), XIX, 485-694; Bogart and Thompson, Readings
in Econ. Hist. (1916), chs. xii, xix.
Commercial Organization: E. McClain, Constitulional Law (1910),
§§95-98; F. J. Goodnow, Social Reform and the Constitution (1911),
chs. ii, iii, vi; S. P. Orth, Readings on Relation of Govt, to Property and
Industry (1915); D. W. Brown, Commercial Power of Congress (1910);
W. W. Thornton, Sherman Anti-Trust Act (1913); Industrial Com-
mission, Reports (1900-1902), I; XIX, §§ 595-720; E. Freund, Police
Power (1904), chs. xv, xvi; D. R. Dewey, National Problems (1907),
ch. xii; T. B. Veblen, Business Enterprise (1904); Cyclop, of Am. Govt.
(1914), Arts, on Building Laws; Business, Government Restriction of;
Commerce, Governmental Control of; Contract, Impairment of; Cor-
poration Charters; Crises, Economic; Franchises, Corporations, Legal
Aspects of; Mines and Mining; Patent Ofhce; Patents, Origin;
Public Service Commissions; Pubhc Service Corporations; Trusts;
W. M. Collier, Trusts (1900); E. R. A. Seligman, Economics (6th ed.,
1914), §§ 232-241; W. W. Willoughby, Constitutional Law (1910), II,
ch. xlviii.
Banks and Banking: D. R. Dewey, Financial Hist. (1915), §§ 43,
58, 67-72, 86-89, I03) 138-140, 163-165, 174, 178, 204, 210, 213; Comp-
troller of the Currency, Annual Report; C. A. Phillips, Readings in
Money and Banking (1916); H. G. Moulton, Principles of Money and
31 481
482 Organization and Commerce [§208
Banking (1916), pt. ii; Cyclop, of Am. Govt. (1914), Arts, on Bank,
Central; Banking (2 articles); Banks (2 articles); E. R. A. Seligman,
Economics (1914), §§ 198-200. — Sources: Bogart and Thompson,
Readings in Economic Hist. (1916), chs. xv, xx.
Coinage and Cxjreenc\: H. White, Money and Banking (1908);
D. K. Watson, Am. Coinage (1899); D. R. Dewey, Financial Hist.
(1902), §§ 44, 90, 153-161, 185-194, 198; H. G. Moulton, Money and
Banking (1916), pt. i, chs. iv-viii; A. B. Hepburn, Hist, of Currency
(1915); G. S. Callender, Economic Hist. (1909), ch. xi; Cyclop, of Am.
Govt. (1914), Arts, on Coinage; Legal Tender Controversy; Paper
Money; Silver Coinage; E. R. A. Seligman, Economics (1914)) §§ 186-
196, 204-209; E. E. Sparks, National Development (1907), ch. ix; D. R.
Dewey, National Problems (1907); chs. v, xiv, xvi, xx; F. A. Ogg,
National Progress (1918), ch. ii.
Labor: C. D. Wright, Practical Sociology (1910), pt. v; Commons
and Andrews, Labor Legislation (1916); H. Marot, Am. Labor Unions
(1914); W. A. Martin, Law of Labor Unions (1910); E. Abbott, Women
in Industry (1910); Cyclop, of Am. Govt. (1914), Arts, on Arbitration
of Labor Disputes; Child Labor; Convict Trade; Labor, (11 articles);
Strikes; R. F. Hoxie, Trade Unionism; Industrial Commission, Reports
(1900-1902), passim; E. Freund, Police Power (1904), chs. xiii, xiv;
E. E. Sparks, National Development (1907), ch. v; D. R. Dewey,
National Problems (1907), ch. iii; F. A. Ogg, National Progress (1918),
ch. v; E. R. A. Seligman, Economics ,(1914); §§172-184, 243-246. —
Sources: Bogart and Thompson, Readings in Economic Hist. (1916),
chs. xvi, xxii. See also references to chs. i, ii above.
208. The Business Man and the Firm.
Large as is the movement of foreign commerce, it is only a
fraction of the business which begins and ends within the
United States. The actual production in one year in the
United States is now about ^18,000,000,000; and parts of
this enormous output are moved several times, before reaching
the consumer. The annual savings of the American people,
after paying more than ^1,000,000,000 for the expenses of
their governments, is perhaps $1,000,000,000, ov $12 per head
of the population. Of the body of elaborate law and practice
on the rights and responsibilities of traders, only the relations of
the various kinds of government to the organization of business
can be touched upon here.
In colonial times, most business was done by merchants
trading on their own credit : John Hancock and Robert Morris
are examples of wealthy merchant princes, who bought and
§ 209] Partnerships. 483
sold, imported and exported, owned vessels, and did a for-
warding and banking business for themselves and their friends.
In 1900 about 1,100,000 persons were doing business as mer-
chants and manufacturers, each for himself, each liable in his
whole property for any debt.
A common variation from this type is the partnership, the
conditions and relations of which are adjusted by state laws,
and the general principle of which is that every active partner
has a right to make contracts in the name of the concern
and to sign for the firm, and is liable for the whole amount of
the firm's debts. Partnerships have the individual's privilege
of holding private the details of their business, although for
their own protection and as a basis for collecting debts they
keep books of account. Partnerships are easily perpetuated
from generation to generation : the firm of Brown and Ives of
Providence, for instance, has continued in profitable business
for more than a century.
The system is favorable to many kinds of business which
require special functions : one partner may be the financier,
another the manager of the factory ; another may superintend
the extraction of raw material. All active and energetic firms
are able to borrow money from banks created to provide such
credit facilities. Thus, business houses control capital not
their own ; and the success of a business means not only an
income and a gain for the partners, but an avenue for the
investment of others' capital. The great disadvantage of a
partnership is that every partner has the power to ruin both
himself and the other members of the firm by injudicious
agreements.
209. Corporations and Trusts.
Notwithstanding that the colonies were founded on charters
granted to trading companies, commercial corporations were
little known in America till after the Revolution. In 1781
was chartered the first bank, — the North America, in Phila-
delphia,— and about the same time began turnpike, canal,
484 Organization of Commerce. [§ 209
insurance, and manufacturing companies. From that time
the organization of business by corporations has gone forward
with leaps and bounds.
Nothing is said in the federal constitution about charter-
ing corporations, and a clause granting such a right to Con-
gress was voted down by the Convention. Nevertheless, the
Northwest Ordinance of 1787 was a charter for a public cor-
poration; in 1 79 1 the federal government chartered the
Bank of the United States ; and as soon as it had a seat
of government it began to charter companies in the District
of Columbia. By the practice of a century, backed up by
numerous decisions of the Supreme Court, Congress has a
right to charter corporations for any national purposes, with
power to carry on operations throughout the Union. Most of
the charters, however, are granted by the states. A special
statute used to be necessary in each case ; but at present
many states have general laws of incorporation, under which,
after fulfilling certain formalities, any body of persons has a
right to be incorporated.
(i) The fundamental principle of incorporation is that the
organization thus created is in most respects like an individ-
ual : it may hold property, receive bequests, especially for
educational and charitable purposes ; it may sue and be sued ;
it may contract debts and become security for other people's
debts. (2) A second characteristic is the limited liability of
the stockholder : in case of failure of the corporation, he loses
only the amount which he has paid for stock, and a limited
amount beyond ; for instance, the holder of ten ^loo shares
may lose his ^1,000 and be liable for another ^i,ooo. This
makes stock investments attractive to wealthy men, who would
not risk their whole fortunes on the success of each of a dozen
different partnerships, but who could not be held responsible .
for the failure of any of a dozen companies in which they
were interested. (3) The corporation has the further advan-
tage that its stock can be subdivided into small shares, thus
furnishing investment for the poor man ; and, since the shares
§ 209] Corporations and Trusts. 485
are readily transferable from hand to hand, stock is a much
easier investment to manage and to dispose of than a partner-
ship interest.
Corporations, like individuals, have distinct obligations
under national and state statutes, (i) In some states con-
siderable fees are payable on the creation of a corporation ; in
others there is a special corporation tax. (2) An important
restriction is that corporations may be compelled to publish
accounts for the protection of stockholders and for the infor-
mation of investors : the United States Interstate Commerce
Commission requires the submission, on uniform blanks, of
accounts relating to interstate commerce. By an Act of
February 14, 1903, the United States may call for the accounts
of any corporation engaged in interstate business. (3) In
many states corporations, such as gas and water companies,
railroads, traction lines, and other public-service corporations,
are subject to the inspection, and even to the control, of
administrative commissions. (4) Still another hold of the
state is through the power of the courts to take away the
charter of a corporation if it can be shown to have violated
the conditions upon which it was created.
The economic development since the Civil War has called
into being literally thousands of corporations, and about 1870
began a process of amalgamation of those in the same line of
business. Charters were often granted, especially to railroads,
permitting one corporation to absorb another. This process
led to many complications, because the ordinary rule is that
a majority of shares decides questions in corporation meetings :
for instance, in a corporation having 100,000 shares, the holder
of 51,000 shares may transfer or impair the property against
the will of the holders of the other 49,000.
To facilitate the combination of corporations, the method
of trusts was invented, by which certain persons were desig-
nated as trustees to hold the stock of several corporations and
to vote it all for one purpose. This was practical amalga-
mation without the actual process. At first these trusts were
486 Organization of Commerce. [§ 209
merely private associations of individuals, who were not liable
in their own property for the debts of the trust or of any of
its corporations, and who therefore were enjoying the privi-
leges of incorporation without its limitations and safeguards.
At present nearly all such organizations have taken out sepa-
rate corporate charters : corporation A may own all or a
majority of the stock of corporation B, which may own the
whole stock of corporations C and D, which may be made up
of amalgamations of corporations E, F, G, and H. Such trusts
are exceedingly hard to follow and control, especially as cor-
poration A may be chartered by New York, corporations B
and C by New Jersey and West Virginia, and the other cor-
porations by still other, states or by foreign countries. Of late
years the name " trusts " has also been applied to powerful
corporations which comply with the regular corporation laws
but are formed to control the whole of some great line of
business. Such are the Meat Trust, the Federal Steel Com-
pany, the Standard Oil Company, and the Cotton-seed Oil
Trust.
The latest form of aggregation of capital is the syndicate, or
combination. It has become a business, almost a profession,
to promote a consolidation of large enterprises. For instance,
all the sugar refineries of the country are owned by one body
of capitalists, who run those that are most profitably situated.
The great banking houses, especially in New York, are the
agencies for great aggregations of capital, and their members
are large owners, The United States Steel Company was
capitalized at $1,100,000,000, and was financiered by the
house of J. P. Morgan & Co. Through these agencies, under-
standings have been reached between the heavy capitalists,
especially the owners of railroads : for instance, the great east
and west trunk lines are in the hands of people who undertake
to keep rates up to a paying figure, and who avoid competi-
tion with each other.
§ 2io] Banks and Banking. 4^7
210. Banks and Banking.
Among the earliest joint-stock limited liability corporations
are the banks, which in many ways are still the most effective
agencies of modern business, and in their important functions
are closely regulated by either federal or state law.
(i) They receive deposits in any amount, and thus bring
into use the small savings and balances which would otherwise
be hidden away. (2) They make loans, partly out of their
capital, partly out of their deposits, partly out of their note
issues.
(3) Through the system of payment by checks, the banks
make it possible to carry on an enormous business with a small
amount of currency. In all the cities there are clearing-houses,
in which checks are exchanged and differences between the
daily debt and credit adjusted. In the New York clearing-
house, the annual clearings for 1902 were ^75,000,000,000,
of which less than 5 per cent had to be handled in cash.
(4) The banks through their own checks make easy the
transfer of money throughout the country at small expense.
(5) Many banks issue demand notes in small denomina-
tions : the so-called " colonial banks " were really loans of
public money expressed in paper notes. The first actual
banks of issue were founded during the Confederation ; event-
ually the states authorized some thousands of banking institu-
tions, the security of which depended on the care with which
the charters were drawn up, — that is, on the temper of the
state legislatures. During the period from 18 10 to i860
hundreds of "wildcat" banks freely issued notes: in 1861 it
was estimated that there were about 5,000 kinds of bank
notes afloat, many of them counterfeit or raised, others
authentic, but without value because the bank had no prop-
erty. The confusion was vexatious, and would now be intoler-
able : every time a payment was made the questions arose,
" Are those bills genuine? are they on sound banks? are they
redeemed in specie at the Eastern centres? "
488 Organization of Commerce. [§210
In I 791 the federal government chartered the first of three
successive systems of national banks. The question of con-
stitutionality was at once raised, and Hamilton argued that
Congress had a right to charter a bank ; not through any
power to charter corporations in general, but because, in
carrying out the powers committed to it, Congress had the
implied power of using any suitable instrumentality not dis-
tinctly prohibited by the constitution. What he really had in
mind was that the United States Bank would be a means of
convincing the country that the federal government ought to
continue. During its lifetime of twenty years the bank was
prosperous and helpful.
Allowed to expire in 18 ri, the United States Bank was re-
vived in 181 6, with what was then the enormous capital of
$35,000,000. In 1829 it incurred the hostility of President
Jackson, who saw with clearness that it could not permanently
keep out of politics ; he refused to sign a recharter bill, and
the bank expired in 1836. Once more the state banks had
a clear field. About half the states created good sound sys-
tems of banking ; others set up official state banks, such as
those of Kentucky, Ohio, and Indiana, some of which were
successful ; and others failed and brought ruin with their
failure. In 18 14, 1837, 1857, and 186 1 all the state banks
suspended specie payments.
During the Civil War, Mr. Chase, secretary of the treasury,
devised a system of national banks, which was authorized in
1862. In 1865 Congress laid a tax of lo per cent per annum
on all state bank notes ; and thus the banks of issue were
compelled to take government charters or to give up their
circulation. Of course private firms and state corporations
may, and many do, receive deposits, lend money, and make
exchanges ; but no bank notes can profitably be issued ex-
cept by the United States national banks.
These national banks have increased enormously in num-
ber and power. In 1902 there were over 4,300 of them,
with a total capital and surplus of over $970,000,000, and
§2ii] Transfer of Title. 489
a note circulation of ^360,000,000. As government insti-
tutions, the banks are subject to the supervision of bank
examiners appointed by the federal government ; and their
notes are absolutely protected by deposits of United States
bonds kept in the federal treasury. The banks are practi-
cally associated in districts ; the small country banks keep
deposits in the larger cities, while the city banks keep de-
posits in New York. In practice this is something very
like the English, French, and German systems of parent
banks with branches.
Two other sorts of banks must be mentioned. One is the
savings bank, which receives deposits on interest, and safely
invests in real estate and other long-time securities because in
case of pressure it is allowed to require notice before paying
out deposits. In 1901 the savings banks of New York State
alone had over 2,000,000 depositors, and ^1,000,000,000 on
deposit ; and in the whole country there were about 6,500,000
depositors with deposits of ^2,600,000,000.
The other kind of bank is the trust company, which has
developed within the last twenty years. Such companies
undertake the administration of large transactions, such as the
refunding of a corporate loan or the amalgamation of corpora-
tions ; they act as trustees and investors for estates ; and most
of them receive deposits, subject to check, although none of
them have any privileges of note issue.
211. Transfer of Title to Property.
One important element of modern commerce is celerity and
security (chiefly under state law) in giving legal control of
property that has been sold, and in creating titles which may
easily pass from hand to hand. For instance, the ownership
of a railroad is represented by shares, which are transferable
upon the books of the company ; and, if it is a sound, divi-
dend-paying company, the owners can find ready purchasers,
or can borrow on the security of their shares.
Title to the great staples of commerce is transferred in a
49° Organization of Commerce. [§ 211
similar way. The farmer expects to get cash for his cotton or
corn or wheat when he deUvers it to the elevator; but the
elevator company may ship the wheat on its way to Europe,
and issue an inspection certificate, upon which money may be
instantly raised, up to the full market value in Europe less the
freight : the certificate is the title ; and, though the grain may
be in an inaccessible car somewhere on a side-track, the
ownership is transferred whenever the certificate changes
hands.
One means of simplifying transfers, both of stocks and
bonds and of staple articles, is by the exchanges which exist in
all the large cities. In New York City, for instance, there h
a stock exchange, in which for a few hours every business day
transactions are made by " brokers," who take orders to do
business for other people upon commission. There is also a
separate cotton exchange, a copper exchange, a petroleum
exchange, and a produce exchange, in which wheat, corn,
oats, rye, and other such staples are bought and sold. The
actual thing transferred is either a certificate to visible property
or an agreement to transfer property.
All these exchanges give opportunity for buying and selling
for future delivery : a manufacturer often has to contract
beforehand for a supply of his raw material ; and exporters
buy in advance, so as to fill their steamers. In practice most
future sales are speculations, not based 'upon anything tangible.
A agrees to deliver to B a million bushels of wheat on January
I, at a price which A thinks is higher than wheat will bring on
that date ; he and his friends then as " bears " try to' force
down the price by offering low prices for small lots, and by
trying to persuade people that the crop will be heavy ; B and
his friends as " bulls " try to push the price up, so as to make
a profit on the purchase when delivered. All the staples, and
many stocks and bonds, are subject to these speculative opera-
tions, which are very close to gambling and in Germany are
strictly limited by law and heavily taxed. In most cases,
when the transaction comes to be settled, no property is
§2ii] Transfer of Title. 491
delivered at all : the party that gets the worst of it simply
pays the difference between the agreed price and the then
market price.
To go into these speculations, it is only necessary to deposit
a margin, — that is, money enough to cover the probable
fluctuation of prices. With ^1,000 a man may purchase the
right to buy and sell ^20,000 worth of stock. If the move-
ment goes against him to the extent of 5 per cent, or " five
points," his broker will "sell him out," unless more margin is
deposited ; if the object of speculation rises sharply, the
speculator may sell out and get the profit, not on his ^1,000,
but on the nominal $20,000. This is gambling for high
stakes ; and the " lamb," or outsider, is almost certain to lose
in the long run, because he pays the broker's commission,
which is a steady drain, and because the great manipulators of
stocks and products have better opportunities than any one
outside of knowing whether prices are likely to fall or to rise,
and they do not intend to lose their money to the greenhorn.
These speculative transactions seldom much affect the actual
cash value of property, although railroad or corporation stock
is sometimes deliberately depressed in price by unfavorable
reports from large owners, who wish to frighten holders out of
their stock so that they themselves may pick it up at a sacri-
fice; or a great staple or stock is " cornered " by people who
agree to purchase at a moderate figure, and then lock up the
available supply and make delivery impossible.
In investments, a distinction is always made between stocks
and bonds, and also between various kinds of stocks and bonds.
Usually a corporation has a simple capital stock ; but it is not
uncommon for it to have also a preferred stock, which gets
the first profits. The best bonded security is usually a first
mortgage bond on the real estate of a corporation, especially
of a railroad, which must pay interest on the mortgage or lose
control of its right of way. A second mortgage is often put
on, and such a "junior security" usually draws a higher rate of
interest, because not so well protected.
492 Organization of Commerce. [§211
A special form of property is placed under the exclusive
jurisdiction of Congress, by the clause of the constitution
giving to Congress authority " to promote the progress of
science and useful arts by securing for limited times to authors
and inventors the exclusive rights to their respective writings
and discoveries," Early statutes embody three principles
which are the basis of the present great patent system :
(i) the fee is small (now ^35) ; (2) all patents are re-
corded in the books of the Patent Office for comparison and
for transfer of title; (3) all patents cease after a brief term
of years (now 14). The patent gives the exclusive right- to
manufacture, use, or sell the invention described ; and the
result is that, in the modern intense industrial competition,
thousands of patents are obtained in order that they may not
be used : for instance, when Hiram Maxim invented his maga-
zine gun, he took out about 200 patents on every conceivable
variation, so that nobody else could come in with something
near his machine. The telegraph companies and like cor-
porations habitually buy up all the promising patents offered
to them, using those which seem likely to save them money,
and pigeon-holing the rest.
The number of patents granted since the records began in
1837 is over 700,000, of which 28,000 were in the year 1900.
In the same year, however, 21,000 patents expired. Thomas
A. Edison stands on the books of the Patent Office as the
inventor of 742 allowed patents, and many other inventors
have received more than 106 patents each. Two of the
earliest important patents were to Eli Whitney for his cotton-
gin in 1793, and Robert Fulton for his steamboat in 1809.
The inventive genius of America has been stimulated by some
cases of enormous profits : thus, the principal sewing-machine
patents brought in over ^60,000,000 profits to the holders.
The technical skill necessary to distinguish between a new and
a previously-patented idea is such that patent litigation is
frequent and is hotly contested.
The exclusive right to a copyright on an intellectual product
§ 212] Doctrine of Contracts. 493
is subject to the same principles as a patent, — a small fee
(50 cents), record on the government books; and a term of
years (now 28, with the privilege of renewal for 14 more).
Copyrights include books, maps, dramatic or musical composi-
tions, drawings or other works of art, engravings, photographs,
and so on. These privileges were for many years confined to
citizens of the United States; but in 1891 an act was passed
allowing foreigners to secure copyrights on literary productions
published from type set within the United States.
For several years Congress also gave exclusive privileges of
trade- marks, with the purpose of preventing the imitation of
standard brands of goods; but a test case was made up in
1 88 1, and it was held that trade-marks for commerce within
a state were nowhere authorized by the constitution. Con-
gress subsequently passed an act providing for the registry of
trade-marks, to be used in commerce with foreign nations, or
with the Indian tribes ; and about 1,600 such trade-marks are
recorded every year.
212. Doctrine of Contracts.
All modern business rests upon the principle that sane
people who make agreements with each other, not influenced
by fraud, must keep those promises even to their own hurt,
and are liable in civil suit for the fulfilment of the agreement,
or for damages. This great doctrine of contract, firmly
imbedded in the common law, is absolutely essential to civili-
zation and to the maintenance of private property. Govern-
ments should recognize this fact, both by keeping their own
promises and by holding private contracts to fulfilment.
Neither of these two principles was very carefully observed
in colonial times. The colonies issued quantities of paper
notes, a part of which they never paid ; and they thus made it
possible for the debtor who had borrowed money or bought
goods on a specie basis to settle in a depreciated currency.
These evils were greatly aggravated in the Revolution. The
federal government issued ^240,000,000 of paper money, the
494 Organization of Commerce, [§ 212
great part of which was never redeemed. The states also
issued Revolutionary paper notes, which were all substantially
repudiated ; and in the Confederation epoch about half of
them raised new crops of the same kind. They also passed a
series of statutes known as the " stay and tender laws," under
which creditors were compelled either to postpone suits for the
collection of debts, or to accept cattle, produce, or even land
at an appraised value. This affected creditors from other
stat-S, and was the cause of loss and confusion. Hence, by
the federal constitution Congress was given power to regulate
commerce between the several states ; and the states were
forbidden to emit bills of credit, to make anything but gold
and silver coin a tender in payment of debts, or to pass any
law impairing the obligation of contracts.
In practice, the restriction on the states was speedily en-
larged to cover cases which probably were not in the minds of
the framers of the constitution. In the case of the Yazoo
lands (^Fletcher v. Peck, 1810), the Supreme Court held that
a Georgia statute annulling a grant of lands was void because
the grant was a contract creating vested rights, which the state
was obliged to recognize. In 1819 this doctrine was widely
extended by the decision in Dartmouth College v. Woodward.
The king in 1769 had granted a charter to Dartmouth Col-
lege, and in 18 16 the legislature of New Hampshire passed
an act to alter the charter ; the Supreme Court held that a
charter to a private institution, once granted, was a contract
irrevocable without the consent of the corporation thus created.
In the same year, in the case of Sturgis v. Crowninshield, it
was held that a state bankruptcy act applying to debts incurred
before the date of the act was also an impairment of contract.
After about 1830 the Supreme Court took milder ground as to
contracts ; and most of the states have settled the question
of charters by inserting clauses in their constitutions, or in
the text of the charters, to the effect that charters are alterable
or repealable at the discretion of the legislatures. The Four-
teenth Amendment in 1868 added another restriction, — ■
§ 213] Weights and Measures. 4^5
namely, that no state should " deprive any person of life,
liberty, or property, without due process of law," a clause
which reinforces the earlier inhibition on impairment of
contracts.
No clause in the federal constitution prohibits Congress from
impairing the obligation of contracts if such an impairment
comes as an incident of specific powers. Under this construc-
tion, in 1 86 2 Congress made United States treasury notes
legal tenders, and eventually issued ^450,000,000 of such notes,
an issue which the Supreme Court in 1884 held to be con-
stitutional even in time of peace. The Irish land legislation
during the last twenty-five years in the British Parliament hds
practically been a steady impairment of the rights of contract
between landlord and tenant. Such legislation could hardly
be secured in any state in the Union.
The one direction in which the nation and the state steadily
interfere with contracts is in declaring that certain kinds shall
not be made at all. In Rhode Island, for a time, a traction
company could not make or enforce a contract with men to
work more than ten hours a day ; and in no state can a man
legally contract to perform a criminal act, or to serve another as
a bondman. At present, legislation is moving rapidly toward
a regulation of the relations between employer and laborer, by
forbidding men to make agreements as to hours or dangerous
employments which are thought to be prejudicial to the inter-
ests of the whole working class.
How a contract may be made, what is legal evidence of it,
how far specific performance may be compelled, how damages
for breach of contract are to be assessed, — these are legal
questions of great intricacy, the subject of very numerous
laws, national and state, and of thousands of court decisions.
213. Weights and Measures.
In most cases, contracts are expressed in quantities, — so
many dollars for so many acres of land, tons of iron, barrels of
molasses, or yards of cloth. One of the great services of the
49^ Organization of Commerce. [§ 214
French Revolution was to simplify the whole system of weights
and measures, by the introduction of the metric system. The
unit of length, supposed to be one four-millionth of the cir-
cumference of the earth, is the metre ; and area, mass, and
weight are directly related to it ; hence every child who can
cipher knows all his tables of measure automatically. This
great reform has extended everywhere throughout the Western
world, except to England and the United States, which still
adhere to the clumsy and antiquated measures of a century
ago : we have two kinds of pound, pound troy and pound
avoirdupois ; two tons, the long ton of 2,240 pounds and the
short ton of 2,000 pounds; our square measure of land
involves clumsy fractions ; only our coinage is decimal, to the
great convenience of the country. The constitution gave to
Congress exclusive control over weights and measures, and it
simply legalized the old-fashioned English standards.
The local governments usually regulate scales and measures;
and often have inspectors who search for false or inaccurate
weights and measures. In 1821 John Quincy Adams was
very anxious co unify the standards, and two years later Con-
gress ordered a set of standard weights to be sent to each state.
In 1866 Congress authorized the use of the metric system ;
and it is freely employed by scientific men for their work,
because it is used by scientific men abroad. It would be a
public convenience to pass a national statute for the gradual
substitution of this system, by setting a date after which the
courts shall not recognize contracts expressed in the old
standards.
214. Coinage and Currency.
Since most contracts, and all obligations of the tax-payer
and of the local, state, and national governments are expressed
in money, it becomes very important to know what is the
authority of government over coinage and currency. The
only legal English coinage at the time of colonization was
specie, and the unit was the pound sterling, divided into
§ 214] Coinage and Currency. 497
twenty shillings, and each shilling into twelve pence. The
colonies had a large trade with the Spanish colonies, from
which foreign silver and gold coins flowed in, especially the
piece of eight or dollar ; but in many places there was so
little money that people dealt with each other by barter.
Paper notes, first issued by Massachusetts in 1690, were so
frequent in the colonies that in 175 1 the British govern-
ment prohibited further issue, yet could not stamp them
out.
During the Revolution, specie nearly disappeared ; but
favorable trade conditions after the war brought in a jumble
of foreign coins, good, bad, and indifferent. The Confedera-
tion had power to establish a national coinage, and agreed on
a decimal system founded on the dollar ; but it had no specie
with which to strike coins other than a few tons of cents.
By the constitution, Congress received power to " coin money,
regulate the value thereof, and of foreign coin," and the states
were expressly forbidden to " coin money " or " emit bills of
credit."
It seems to have been supposed that under this clause the
states were prohibited from striking money, and both states
and nation from issuing paper money as legal tender ; so that
the only legal currency would be federal coins, or foreign coins
allowed to circulate at valuations fixed by Congress. In 1792
was passed the first coinage act, providing for the striking of
both gold and silver coins at a ratio of 15 to i : eagles, half
eagles, and quarter eagles were of gold ; dollars, half dollars,
quarter dollars, dimes, and half dimes, of silver ; cents and
half cents, of copper. At that time, however, there was no
considerable supply of either metal produced in the United
States, and the notes of the state banks and the United States
Bank were the common currency, although not legal tender.
In 1834 the ratio between gold and silver was changed to 16
to I. The discovery of gold in California in 1848 greatly in-
creased the gold coinage ; but when specie payments were sus
pended in 1861 gold and silver at once went out of circulation
49^ Organization of Commerce. [§ 214
To fill the gap, and to provide an easy means of borrowing
money, the government issued treasury notes, not legal tender,
as it had done repeatedly in times of financial stress. In 1862
legal tender notes were authorized ; and, as the treasury was
hard beset during the whole war, more and more notes were
issued, up to about $450,000,000, with a corresponding depre-
ciation as measured in specie. The lowest point reached was
in 1864, when greenbacks for a few weeks were worth about
40 per cent of their face. It was not until 1879 that the gov-
ernment could accumulate 1 100,000,000 of gold as a reserve
for $350,000,000 of greenbacks then outstanding, and resume
specie payments.
Meantime a new currency question arose. Silver had in
1873 gone almost out of use, and Congress, practically with-
out opposition, voted to discontinue the coinage of the stand-
ard silver dollar. About this time new silver mines were
opened up, and Germany gave up its silver coinage and threw
its surplus stock on the market ; so that the market price of
silver in the English market fell rapidly, as measured in gold
coin. The result was that the mine owners felt that a use of
silver which had gone on for nearly a hundred years had been
unreasonably withdrawn ; and a considerable part of the peo-
ple, especially in the West, felt that the conditions of com-
merce and the influence of the government were such as to
compel those who were in debt to pay in gold, which many
eminent authorities believed was constantly rising in propor-
tion to the staple products of the country.
In 1878, therefore, Congress enacted that the secretary of
the treasury every month buy silver bullion to the amount
of not less than $2,000,000 measured in gold, and coin it into
silver dollars. In twelve years 368,000,000 silver dollars were
coined ; but the price of silver began to drop : it was impossi-
ble to keep this enormous weight of silver in circulation, and
the government adopted the policy of issuing certificates in
dollars and multiples of dollars, each representing actual
coins lying in the vaults of the treasury.
§215] Commerce' and Occupation. 499
In 1890 the so-called "Sherman Act" was passed, by
which the secretary of the treasury was compelled to buy
4,500,000 ounces of silver each month, and to use it as a
basis for legal tender notes payable in coin. This act lasted
only three years: in 1893 a dangerous financial panic came
on, and silver coinage was wholly suspended by Congress.
The gold reserve to support the greenbacks, which had for
fourteen years never fallen below ^100,000,000, was in dan-
ger of disappearing; the revenue of the country fell off;
and over ^260,000,000 of government bonds were issued to
meet the deficiency. In 1896, and again in 1900, the ques-
tion of the restoration of silver to coinage on the old basis
was the burning issue in the presidential campaign. Good
crops, however, favorable trade balances, and an enormous
and unexpected production of gold brought matters to a
point where, on March 14, 1900, Congress authorized the
secretary of the treasury to redeem greenbacks, silver treasury
notes, and silver notes of 1890 in gold coin, and to sell bonds
to keep up a sufficient reserve.
This action quieted the financial interests, which feared that
the United States was to be thrown upon a standard different
from that of foreign countries and subject to violent fluctua-
tion. Losing the support of federal purchases, the weight of
silver in a dollar fell from a gold value of 80 cents in 1890
to 38 cents in 1902. The history of the state bank notes,
of the United States legal tender, and of the silver coinage,
shows how dangerous to steady commerce is any change in
the standard value, especially changes which are brought about
for political and party reasons.
215. Regulation of Commerce and Occupation.
In supervision of ordinary trade and business, the United
States participates indirectly through its tax system and its
regulation of commerce. Congress requires in its laws, for
instance, that liquor-dealers post up their licenses in public
500 Organization of Commerce. [§ 215
view ; that paper stamps be afifixed to cigar boxes ; that railroads
make proper returns to the Interstate Commerce Commission.
The states directly and indirectly legislate on the conditions
of business : for instance, the state tax laws frequently involve
investigations into the receipts and profits of individuals and
corporations. The states pass statutes specifically prohibiting
or limiting occupations : for example, life-insurance concerns
must keep deposits in the state treasuries to protect policy-
holders, and are subject to official investigation of reserves,
forms of investment, surrender values, and surplus. The bank-
ing business is very strictly regulated : savings banks, for
instance, are forbidden to invest except in securities of per-
manent value, such as real-estate mortgages, state and munici-
pal bonds, and the stock of other banks. Manufactories are
regulated by enactments a.gainst undue noise or a smoke
nuisance ; by laws requiring powder-mills and other similar
dangerous manufactories to establish themselves at a distance
from other concerns ; and by the inspection of food products.
Hunting is regulated by the establishing of close seasons for
fish and game. Agriculture is regulated by provisions as to
the mortgage of standing crops ; the farmers are also aided by
Congress by the distribution of seeds, by the collection and
publication of crop statistics, by the maintenance of the agri-
cultural experiment station, by bounties for the manufacture
of sugar, for a time offered under an act of 1890. Mining is
regulated chiefly by the states : an example is the law forbid'
ding the use of naked lights in gaseous coal mines.
Certain pursuits are forbidden by state laws. The lottery
business is prohibited in every state ; but there is a vast
amount of "playing policy" (a form of public gambling which
consists in betting that certain numbers will be drawn) through
concerns absolutely prohibited by law, which select their num-
bers after the bets are in, which with honest management have
odds of about five to one in their favor, and which cannot be
depended upon to pay the winnings. Gambling houses are
absolutely forbidden by law in every state, but they go on
§ 2i6] Regulation of Labor. 501
openly or secretly in every large city. In most states the pos-
session of lottery tickets, policy slips, or gambling implements,
or the being present at a gambling place, is a punishable offence.
Many states also regulate professions, — as by prohibiting
persons from the practice of medicine unless they have passed
the examination of a state board, and lawyers from represent-
ing clients before a court unless they have been duly admitted
to the bar. In some states, druggists and drug clerks have to
be licensed ; in others, plumbers and miners have to be ex-
amined and licensed. Exclusion of unqualified persons from
such occupations is not considered a violation of the rights of
the individual, but a protection of the rights of the community
at large.
216. Regulation of Labor.
The relation between the employer and the employee is one
of the most frequent objects of legislation • and laws, usually
in behalf of the laborer, appear on the statute-books of all
states. The most common statute is for the protection of the
life and limb of the laborer, by requiring the employer to
use safety appliances and fire-escapes. In many states, the
employer is held liable for damage to life or limb caused by
the neglect of such precautions ; and this is the only eiifective
means of securing obedience to the laws.
Another form of labor legislation is directed against the em-
ployment of women and children. In 1890, of the children
from ten to fourteen years of age, 600,000, or about one twelfth,
were at work. In the Southern states, particularly in Alabama,
child labor of the most wearisome kind is legal, and children as
young as six years old are sometimes sent into the cotton-mills.
In most of the Northern states, no child can be sent to work
at all unless he has had several years of schooling.
The hours of labor are the subject of many statutes. In
1892 Congress enacted that eight hours should constitute a
day's labor in the government service. In the states a ten-
hour law is not uncommon ; in several of them eight hours
constitute a day's labor unless otherwise agreed ; in some there
502 Organization of Commerce. [§216
is a ten-hour law for children. The labor unions have for
years set themselves toward the goal of a universal compul-
sory eight- hour law ; but such a requirement must necessarily
except domestic servants and farm hands. Many of the states
have established public holidays, on which factories and all
places of business are closed.
Another regulation of labor is the very common prohibition
of the sale, in open market, of goods produced by convicts.
This legislation tends to condemn to complete or partial
idleness prisoners who are able and anxious to work hard
enough for their own maintenance. Other legislation has in
several states established arbitration boards for the settlement
of disputes between employers and employees ; in a few cases
such a board has a right to investigate and report without the
consent of both parties.
By. indirection the states have also taken ground on strikes.
Under the English common law, a combination of laborers to
raise wages was in itself unlawful; hence neither strikes nor
trade unions could legally exist. Everywhere in the United
States, laborers may associate peacefully for their common
interests, and may cease work when they feel so disposed,
either singly or in groups. Technically, a contract to work for
a week or a month is as binding on the laborer as on the
employer ; but, in case of breach of contract, the remedy for
either is to demand, not specific performance, but damages.
Thus, if the mill shuts down in the middle of the week, the
man who has a contract for a week's work may sue for the
remaining wages ; but the workman cannot compel the em-
ployer to start up his mill, nor can the employer compel the
workman to do his work, for that would be practical slavery.
Since the employer usually has something from which a judg-
ment may be collected, and the laborer has little property,
the likelihood of getting a collectible judgment is much greater
for the workman than for the master.
The tendency of the American court is to tone down labor
laws by holding the broader ones unconstitutional ; and, upon
§ 217] Public Industries. 503
the whole, the machinery of government and the make-up of
society are more favorable to employer than to employee.
On the other hand, the tendency is very strong toward per-
manent acts restricting the hours of labor, protecting against
accident, and reUeving childhood from the terrible burden of
stunting and stupefying labor. The doctrine that a man once
employed has a property right in his place, such that, if he
joins a strike and ceases work, he has the quasi-legal right to
prevent another man from taking his place is not yet sup-
ported by any statute or official decision.
217. State and Municipal Industries.
The usual attitude of the government toward industries is to
protect the individual in his chosen pursuit unless it is destruc-
tive of the morals of the community : government assures to
the laborer that he shall not be molested in earning his wages ;
to the property owner that he shall have peaceable possession
of his property ; to the business man and the farmer that the
sale and distribution of their products shall be undisturbed.
The modern tendency is to go farther still : first and last,
the national, state, and municipal governments exercise a con-
siderable number of industries on public account.
The national government is the largest publisher in the
world, expending every year over ^4,000,000 for printing and
issuing documents and books. It is a manufacturer, as in the
government arsenals and navy-yards, where ships and materials
of war are made. The post-office is so nearly self-supporting
that it may fairly be considered a vast business for forwarding
intelligence ; and it is much better conducted than the private
express companies. It is not impossible that the federal gov-
ernment will also become the proprietor of telegraphs and
telephones, and even of the railroads of the country. The
United States manufactures at its own expense bank bills for
all the national banks. During the Spanish War it organized
transport steamers, which were virtually a large freight and
passenger line.
504 Organization of Commerce. [§217
Some of the states are engaging in public forests as a state
industry. Most of them keep up some kind of manufacturing
in their prisons and workhouses ; when prohibited by law from
making standard goods, they often make furniture and other
supplies for state institutions. The Southern states go into
the business of leasing out convicts to private firms, to be used
in railroad construction and like hard labor.
In the municipalities we find the greatest number of public
industries. No American city goes to the extent of the
French, with public pawnshops and public restaurants, or
imitates the English system of public tenement-houses ; but a
large number of American cities engage in the business of
supplying water and gas or electricity to private consumers,
and there is now a manifest tendency toward the business of
public street-cars. Wherever the town system prevails, there
is a town hall, which is often let for private entertainments.
The city of New York manages a large system of public
docks for profit, and the city of Boston has a public printing
establishment.
An interesting case of state industry is the public monopoly
of the liquor business in South Carolina. A system of " dis-
pensaries " or public salesrooms is provided in which pure
liquor is sold only in certain quantities and not to be con-
sumed on the premises, the profits to go into the state treasury.
The stock is purchased on state account. A somewhat similar
system is that of state agents in prohibition states, who are
designated to sell liquor for medicinal purposes.
Most of the national, state, and municipal industries are
extravagantly managed, perhaps because they aim, not to make
money, but to furnish a convenience to the communities. The
right to expend public money somehow unbalances some
honest men, and leads them to a reckless and imprudent
course which they would not adopt in their private business.
Nevertheless, some of the most important municipal works,
notably the Boston subway and the New York tunnels, have
been managed prudently and to the public advantage.
CHAPTER XXVII.
TRANSPORTATION.
218. References.
W. B. Munro, Bibl. of Municipal Govt. (1915), §§ 29, 31, 32, 35;
A. B. Hart, Manual (1908), §§ 39, 40, 119, 120, 143, 161, 224; Channing,
Hart, and Turner, Guide (1912), §§ 194, 199, 201, 208, 220, 246, 250, 253,
254, 256, 259, 260, 269, 273.
Internal Transportation in General: Cyclop, of Am. Govt.
(1914), Arts, on Express Service, Regulation of; Interstate Commerce
and Cases; Interstate Commerce Commission; Interstate Commerce
Decisions; Interstate Commerce Legislation; Postal System of the
U. S.; Roads; Street Pavements; Streets; Telegraphs; Regulation of;
Telephones, Regulation of; Transportation, Economic Principles of;
Transportation, Regulation of; E. R. A. Seligman, Economics (6th
ed., 1914), §§ 218-224; E. E. Sparks, National Development (1907),
ch. iv; D. R. Devi^ey, National Problems (1907), ch. vi; A. B. Hart,
National Ideals (1907), ch. xvi; F. A. Ogg, National Progress (1918),
ch. iii; Industrial Commission, Reports (1900-1902), IV; IX; XIX, pp.
259-481; F. H. Cooke, Commerce Clause (1908); F. H. Judson, Law
of Interstate Commerce (3d ed., 1916); C. A. Beard, Readings in Am.
Govt. (1909), ch. xix; W. B. Munro, Municipal Administration (1916),
ch. iii; B. H. Meyer, Transportation in U. S. before i860 (1917); G. S.
Callender, Economic Hist. (1909), ch. viii; D. C. Roper, U. S. Post
Office (191 7). .See also references to ch. xxiv above.
Railroads: H. S. Haines, Restrictive Railway Legislation (1905);
J. Bryce, Am. Commonioealth (ed. 1910), II, ch. cvi; Industrial Com-
mission, Reports (1900-1902), IV, 1-32; Johnson and Van Metre,
Principles of Railroad Transportation (1916), chs. xxvii-xxxii; S. O.
Dunn, Govt. Ownership of Railways (1913); Cyclop, of Am. Govt. (1914),
Arts, on Railroad Capitahzation; Railroad Commissions, State; Rail-
road EstabUshment and Management; Railroads, Physical Valuation
of; Railroads, Public Aid to; Railroads, Public Ownership of; H. V.
Poor, Poor's Manual of the Railroads (annual volume, 1868-);
Interstate Commerce Commission, Annual Report.
Waterways: W. F. Johnson, Four Centuries of the Panama Canal
(1906); C. N. Morris, Internal Improvements in Ohio (1889); H. S.
Tanner, Memoir on Internal Improvement (2d ed., 1830); Commissioner
of Navigation, Atmual Report; Chief of Engineers, Annual Report;
H. Quick, Am. Inland Waterways (1909); Johnson and Huebner,
Principles of Ocean Transportation (1918), pt. iv; E. R. Johnson, Ocean
and Inland Water Transportation (1906), bk. ii; E. R. Johnson, Panama
Canal (1916); Cyclop, of Am. Govt. (1914), Arts, on Canals and other
Artificial Waterways; Panama Canal; Waterways, Artificial; Waterways,
Natural, Regulation of; J. D. Warner, Ship Subsidy Trust (1901).
505
5o6 Transportation. [§ 219
Traction System: J. A. Fairlie, Municipal Administration (1901),
ch. xii; Cyclop, of Am. Govt. (1914), Arts, on Railroads, Electric; Rail-
roads, Street; Transit in Cities, Problems of; Electric Railway Trans-
portation (Am. Acad. Pol. Sci., Annals, XXXVII, No. i, 1911); D. F.
Wilcox, Municipal Franchises (1910-1911), II, pt. iii; C. Zueblin,
Am. Municipal Progress (1916), ch. ii; C. W. Baker, Monopolies and the
People (3d ed., 1899), pt. i, ch. v; pt. ii, ch. iv; pt. iii, ch. ii; Am. Acad.
Pol. Sci., Corporations and Public Welfare (1900), 63-76.
219. State and Interstate Commerce.
With regard to private business, the American principle is,
not to foster it, but to protect it against fraud and violence by
statutes general in their terms. An opposite principle applies
to transportation of freight and passengers, which so affects
the conditions of all business and all private travel that it is
carefully regulated by both state and national governments.
The power of regulation is divided : movements of persons
and commodities wholly within the boundaries of a state are
normally subject only to the control of that state ; movement
from state to state, or from the United States to foreign coun-
tries, is subject to the federal government. Wagon transit,
trolley lines, local railroads, the distribution of sommodities
into suburbs, are subject to state and local regulations. The
movement of persons is ordinarily not restrained, except in
the case of paupers and of people suffering from contagious
diseases. In practice, fugitives flying to escape a pestilence
have often been turned back by armed mobs.
The United States has also, through its tax system, some
control over commerce wholly within a state : shipments of
liquor, for instance, are all subject to the investigation of the
internal-revenue officers. Congress may authorize the bridg-
ing of a navigable river, though both banks are within the
same state ; the federal courts, through their admiralty ju-
risdiction, may regulate navigation within a state ; and the
United States may follow and deport an emigrant who has
unlawfully come into the country. The system of through
railroad transit is such that acts of the United States for
§ 2 19] State and Interstate. 507
regulating interstate commerce often virtually affect commerce
within a state.
The border line between state and interstate commerce is
always difficult to draw. Navigation from one port in a state
to another port in the same state is local ; yet in the great
case of Gibbons v. Ogden (1824) the Supreme Court held
that no state can grant exclusive rights of navigation in waters
wholly within its limits, if they so connect with other waters
as to be a part of an avenue of interstate and foreign com-
merce. The states have repeatedly attempted to limit railroad
transit by taxation : in 1872 a Pennsylvania act imposing a
tax on freights from Pennsylvania to other states was held
invalid. Taxes on commercial travellers have been laid, but
have always been invalidated on the ground that the states
cannot indirectly tax or regulate even the soliciting of business
from state to state. Attempts at state regulation by inspec-
tion acts on meats and other products brought into the state
have been prevented by repeated decisions of the Supreme
Court.
An occasion of serious controversy is the carrying of liquor
into states which prohibit its manufacture and sale. In the
test case of Leisy v. Hardi7i (1890, commonly called "the
original package decision "), the Supreme Court held that no
state could prevent the sale and delivery of liquors in the
original packages in which they had been shipped from an-
other state. To meet this difficulty, Congress on August 8,
1890, passed the Original Package Act, which provided that
liquors imported into any state were subject to the operation
and effect of the laws of that state.
During a century. Congress made few specific regulations of
commerce except those concerning navigation, especially by
steam vessels ; but in 1887 the Interstate Commerce Act, in
addition to the creation of a commission for the regulation of
railroads, elaborately legislated against unreasonable charges,
discriminations, or preferences, against pooling and excessive
short-haul rates. This statute has repeatedly been amended
5o8 Transportation. [§220
and strengthened. In March, 1S93, Congress passed an act
that, after January i, 1898 (later extended to January i,
1900), no car used in interstate traffic should be moved
unless equipped with automatic car-couplers, which could be
uncoupled without the men going between the cars. The
result was that the number of coupling accidents diminished
from over 8,000 in 1890 to about 5,500 in 1901, with a much
larger train movement.
220. Transmission of Intelligence.
Control of the means of conveying intelligence has from,
remotest times been considered a proper function of govern-
ment. A post-office system, was introduced into the colonies,
and Benjamin Franklin was the first postmaster-general.
Under the Confederation this became a national institution,
and by the federal constitution Congress was granted the ex-
tensive power to '' establish post offices and post roads." For
half a century the post-roads were bad ; much of the mail was
carried by horsemen, and the postage was high.
In the thirties and forties came about a great reform, based
upon the discovery that low postage brought a greater return
to the government. Postage was reduced in the United States
in 1863 to three cents, and in 1883 to two cents, with the
expected enormous increase of correspondence. International
postage has also been reduced, till among the Western na-
tions and many other parts of the world, united in a postal
system, it is but five cents a half-ounce on sealed letters.
In the United States the post-office is a strict government
monopoly :• no private individual may step in and take the
cream of the business by establishing a private post between
or within large cities. The head of the postal service is the
postmaster-general, who has under him four assistant post-
master-generals, an army of clerks in Washington, 9,700 rail-
way mail clerks throughout the Union, 76,000 postmasters
and 21,000 clerks, 18,000 letter-carriers, and 12,000 rural
mail-carriers, besides other helpers. More people are con-
§ 2 2o] Transmission of Intelligence. 509
nected with the United States post-office than with the United
States army and navy. The mail is carried by all sorts of
public conveyances, — steamers, railroads, stages, trolley lines,
buggies, horsemen, and men on foot. The railway mail ser-
vice is the principal item of expense ; for the mails are sorted
while the trains are in motion so as to hasten the delivery.
The main principles of postal business are : (i) The equal
right of all persons to use the mail, subject to the very impor-
tant restriction that immoral, abusive, and obscene matter is
excluded from it. In 1872, lottery, gift, and other fraudulent
enterprises were forbidden the use of the mail ; and letters
addressed to banks and express companies, but presumably
intended for lottery companies, are also undeliverable. Many
thousands of letters are seized annually under this law.
(2) The second principle is that of the secrecy of the mails :
it is a criminal offence for a postmaster or any other individ-
ual to open a letter addressed to another person, unless it is
seized by regular process of law.
(3) The next principle is that the postage shall be low :
sealed letters are sent from end to end of the country for two
cents, postal cards for one cent ; and this includes delivery by
carrier in all towns of 10,000 population and upwards, and in
many rural districts by a new system of rural carriers. The
postage on the circulation of newspapers is very low, — one
cent a pound on their weight ; this so-called " second-class
matter " has been twisted to include advertising and occasional
publications having no subscription lists and hence no real
right to be classed as newspapers.
The government carries single newspapers, books, photo-
graphs, and other matter at rates decidedly higher than are
asked for the same service in most foreign countries. Owing
to the great loss on second-class mail matter (the government
pays on it about $29,000,000 a year, and receives about $4,000,-
000), and to the great amount of business performed for the
federal government, the post-office receipts are always less
than the expenditures. The number of post-offices in 1902
5IO Transportation. [§220
« .
was 76,000, the revenue ^122,000,000, the expenditures
^125,000,000; and 8,000,000,000 pieces of mail matter were
forwarded.
The post-ofifice performs several special services : for a fee
of eight cents it registers a letter and insures it to the value
of $25 ; for ten cents it sends a letter by special messenger to
any point within a mile of the receiving post-ofifice ; for small
fees of from i per cent to J per cent it furnishes money orders.
As yet the government has not assumed the monopoly of
carrying small packages, which is a serviceable function of
several foreign post-ofifices.
In nearly all European countries the telegraph is also a
government monopoly, partly because the diffusion of public
intelligence is a public service, and partly because it can be
much more cheaply carried on in connection with the post-
ofifices. The United States was the home of the invention of
the telegraph, — the first message ever sent over a wire was
received in Washington in 1844 ; but the business was organ-
ized at haphazard by local companies, which were gradually
concentrated until the sixties, when most of them were united
in the Western Union Telegraph Company, which now has
offices in every considerable place in the Union. Competing
companies" have repeatedly been formed, but the Postal Tele-
graph Company is the only one that has not been absorbed.
The Western Union Company in 1902 had 196,000 miles of
lines, and reported 69,000,000 messages, receipts of ^28, 000,-
000, and a profit of ^7,000,000. The rates are rather higher
for the same service than in foreign countries : in England a
twenty-word message costs a shilling, while a ten-word message
from New York to Chicago costs forty cents. It has often
been suggested by postal authorities that the government
ought to absorb the telegraph lines and work them in con-
nection with the post-ofifice ; but as yet no progress has been
made in that direction.
A newer means of transmitting intelligence is the telephone,
which was invented as a practical talking-machine about 1876,
§ 22i] History. 511
and has now extended over the Union, The business is in
many places controlled by one company, the American Bell
Telephone Company, which has about 2,000,000 instruments
in operation. The company has no legal monopoly ; but it
controls valuable patents, and it is difficult for competitors
to work in, since everybody wants to be connected with the
exchange used by everybody else. This service might well
be made a government monopoly, to be worked in connec-
tion with the post-office and telegraph. Since the operation
of each exchange is local, the telephone service is subject to
state restrictions, with the result that the same kind of service
that in one state costs ^12 a year, two miles across the line in
another state may cost ^30.
221. History of Modes of Transportation.
Local, state, and national governments have always con-
cerned themselves with the avenues of communication. The
earliest regular ways found in America were the buffalo paths,
which intersected all the country inhabited by those animals.
Almost of equal antiquity were the Indian trails, footpaths
worn by immemorial use along the divides and across the
carries or portages, from the head of one stream to that of
another, — as at Fort Wayne (Indiana), Portage (Wisconsin),
and Portage (Ohio). With the white man came the pack-
horse, and the early frontier paths were used only by foot-trav-
ellers and beasts of burden.
The construction of wagon roads began in colonial times,
but was a task of centuries : for primeval trees had to be cut,
and ways made round or over the stumps ; swamps were
avoided by detours, or crossed by " corduroy roads " (trunks
of trees laid side by side) ; bridges were few, and the fords on
many streams were impassable when the waters were up. In
New England the earliest roads ran along the hilltops, because
it was easier to clear farms up there, and few bridges were
needed. Down to 17S9 there was probably not a road in the
United States that was good after heavy rains.
512 Transportation. [§221
Soon after the Revolution began the era of pikes, — that is.
roads covered with broken stones, which under pressure con-
solidate into a waterproof surface. Many streams were spanned
by permanent stone bridges, and Americans developed a
special art of building wooden bridges of considerable span.
Many highways were raised, drained, and graded. From 1 790
to about 1840 hundreds of miles of such roads were con-
structed by private turnpike companies, which received the
right to collect toll. The era of steam navigation on lake and
river began in 1807 with the success of Fulton's craft, and is
still a favorite means of freight carriage on river, lake, and
sea. Canal construction is as old as Assyria ; but the Dutch
canals, with locks to raise boats from one level to another,
came into England only about 1760. A few short lines were
constructed in America between 1780 and 1800; but Madi-
son's veto of the Bonus Bill in 181 7 for the time prevented
the federal government from aiding in this construction. The
task was too great for private capital, and the state of New
York at once began to construct the Erie Canal, and finished
it from tide-water to Lake Erie in 1S25. The example was
followed by most of the states west and south of New York.
About 1830 a new mode of transportation was introduced,
the railroad. The first line of parallel rails used for transporta-
tion in the United States was from a quarry near Philadelphia
three quarters of a mile to tide-water, in 18 10. The first
line to use steam locomotives successfully was the Baltimore
and Ohio, of which a short section was constructed in 1830,
Within ten years railroads began to take away the passenger
travel of the slower canals; by 1853 there were connecting
railroads extending all the way from New York to Chicago ; by
i860 one railroad line, the Hannibal and St. Joseph, crossed
from the Mississippi to the Missouri River; by 1869 there was
through rail connection from ocean to ocean. Half a dozen
states built or subsidized railroads ; but from the first most
of them were constructed by private capital, under special
legislative charters.
§ 222] Highways and Streets. 5 1 3
At first the railroads were built in short lengths, with a
change at the end of each little link ; and were of various
gauges, from 4 feet up to 6 feet, a system which required fre-
quent transshipment of car-loads. During and after the Civil
War rose a race of railroad kings, of whom the best known
was Cornelius Vanderbilt ; he consolidated the various local
roads between New York and Buffalo, making a great trunk
line. Then, from 1875 to 1890 came a period of alteration
of gauges ; till now all the main roads of the country are of
the same gauge, — namely, 4 feet 8 inches, — and cars once
started may be sent thousands of miles without reloading.
The railroads speedily began to parallel the canals, with
which they competed ; even for heavy freight, because they
were not interrupted by ice or washouts ; and, except the Erie
Canal, that from the Hudson to Lake Charaplain, and some
coal-carrying canals in Ohio and Pennsylvania, the inland
canals have all been abandoned. Steam navigation on the
rivers has also been paralleled, and almost destroyed, by rail-
road competition ; just as the railroads were becoming the
one great means of transportation, arose the system of elec-
tric lines, built for the most part on roads and streets, grad-
ually extending into systems many miles in length, busily
competing for the passenger traffic everywhere, and in a few
places also for the freight business.
222. Highways and Streets.
Power over the means of commerce is divided in the same
way as over the objects of commerce : the United States may
either restrict or further commerce between the states or with
foreign nations ; hence it may establish regulations for, or it
may aid, highways, canals, railroads, and navigable streams and
channels available for interstate and foreign commerce. In
practice the United States has made few restrictions on means
of transportation, and has aided few ; the states and their
creations, the local governments, have built, or aided, or
authorized, or control, most of the means of land transport.
33
514 Transportation. [§222
Some of the states nominally subdivide the highways into
state roads, county roads, and town roads ; but, though roads
when first built may be aided by state or county taxation, the
maintenance usually falls to the local governments, and this is
one of the many reasons why the United States has the poorest
highways among all civilized nations. Germany, Austria, Russia,
Italy, Switzerland, and England build magnificent roads, always
kept in order, hence capable of accommodating loads from two
to four times greater, with the same number of animals, than
is possible on most American highways.
The principles of proper road-building as seen in foreign
usage are as follows : — ( i ) The road is only wide enough for
two vehicles to pass comfortably, besides a footpath and the
necessary ditches ; and the land is cultivated on both sides up
to the edge of the ditch. (2) Many roads are shaded, often
by two rows of fruit trees. (3) Foreign roads are well surfaced
and are kept in repair ; in thinly-populated mountain districts
are good stone roads, always shedding the water to the side,
never gullying or rutting, and hence always passable at good
speed and with heavy loads. The money that is spent on the
highways in most of our hill towns is multiplied by trying to
keep up steep roads, which inevitably wash out, and by putting
soft material into the middle of the road, where it is certain to
make mud. In a soft prairie state hke Illinois, continued
heavy rains make the ordinary highways literally impassable
for wagons. (4) Foreign roads are crooked : by skilful en-
gineering the road accommodates itself to the He of the
ground, habitually going round the hill instead of over it, and
is as carefully engineered as a railroad. The up-hill and
down-dale roads of New England and New York and Penn-
sylvania would be thought preposterously wasteful in Central
Europe, because of the strain on horses and vehicles caused
by going over the bail of the kettle set up perpendicularly
instead of going round it as it lies flat. (5) Foreign roads
are surveyed, built, and maintained by expert roadmasters,
paid out of the public taxes ; whereas in many parts of the
§222] Highways and Streets. 515
United States the person responsible for tlie roads is ignorant
of the true principles of road-making, and farmers are allowed
to practise the wasteful and unprofitable system of working
out their taxes on the road.
Since about 1890 efforts have been made to improve Ameri-
can roads. The state of Massachusetts has appropriated
^4,500,000 in nine years; and the money has been spent in
building short sections well graded and well surfaced, as an
example to the towns, which have shown entire willingness
that state money be spent within their limits, and decided
unwilUngness to add to it out of their own taxes. Other
states, as New Jersey, have appropriated generously to a
township or a county which would spend an equivalent
amount : but as yet the conception has not found lodgment
in the popular mind that properly-built roads add to the value
of all the lands along their line, by making it cheaper and
easier to get crops to market ; and that to be good, a road
must be kept in constant repair.
The United States has built one considerable wagon road, —
the National Road, begun in 1S07 at Cumberland, Maryland,
and in the course of about forty years continued westward to
Vandalia, not far from St. Louis. This road was well engi-
neered and surfaced, and became a great highway for the
settlement of the Western country. It has long since been
turned over by the general government to the states through
which it runs, and parts of the mountain sections are no
longer in use.
In towns, and especially in cities, it is absolutely necessary
to build some sort of permanent street which shall not be a
quagmire whenever it rains hard. There are many forms of
street pavement, of which the poorest is the cobble-stone ; a
better type is the ordinary rough-squared paving-stone ; and
the best are the smooth, even, and permanent pavements of
Belgian block stone, wood, brick, or asphalt. In general,
American cities are ill paved, no matter how expensive the
pavements : either there is no suitable foundation, so that the
5 1 6 Transportation. [§ 222
surface knocks into holes ; or the pavement is torn up from
end to end in order to lay pipes, and is never properly
restored.
A good pavement will cost more per square yard than
Turkey carpeting, and may not last more than ten or fifteen
years. In some cities all pavements are constructed by the
municipalities, and lience people are eager to get their streets
paved. In most Western cities, pavements are a charge on
the abutting property, and the owners fight them off as long as
they can. In Philadelphia, twenty-five years ago, there was a
street on which every abutter was allowed to lay the kind of
pavement that he liked best. Sidewalks are usually at the
charge of the abutter ; some cities, like Boston and Phila-
delphia, have great stretches of brick sidewalk ; in the West,
stone flagging is more common. In villages and in some
cities, plank sidewalks are common, and are convenient so
long as they last. Footpaths carefully made along country
roads are very uncommon ; and still more so are " cut-offs,"
hke the ancient English footpaths, which are public rights of
way across fields and from village to village.
When the country was poorer, from the Revolution to about
1850, toll bridges were common; but the tendency is now to
make all bridges a part of the free highway. Private turnpikes
are now little known in the Northern states, though they are still
common in the South ; they are constructed on public roads
by toll companies who have the right to put up gates and ex-
clude all those who cannot pay a rather high toll. It is a
wasteful system, for the community in the end must pay the
cost of building and maintaining the road, and also of keeping
up the company and paying its dividends. It is a public
saving in the long run to remove every private monopoly of
the highways.
The United States makes one restriction with regard to
bridges, — namely, that no navigable stream shall be crossed
except by a bridge which shall be approved by the secretary
of war. The plan of the proposed great bridge across the
§ 223] Rivers and Canals. 5 1 7
Hudson River at New York City, authorized in 1894, was
abandoned because the secretary would not allow a pier in the
river.
223. Navigable Rivers and Canals.
America has magnificent natural waterways. As the Atlantic
front is a drowned coast, which has subsided since the river
channels were cut, the sea creates such estuaries as those of
the Kennebec, Merrimac, Charles, Connecticut, Hudson, Del-
aware, Susquehanna, and James, penetrating far up into the
country. On the north is the chain of Great Lakes, which is
really a broad, expanded river system, with the head waters at
Chicago and Duluth, and with the mouth at Buffalo. The
tributaries of the Mississippi descend with scarce a rapid from
points a few miles below their sources in New York, Minne-
sota, Montana, and Colorado to the Gulf of Mexico, a turbid
system of liquid roads converging on New Orleans.
The network of interior rivers, as well as the lakes, are
subject to federal control, as parts of a system of interstate
navigation. On both lake and river the " rules of the road "
are enforced so as to prevent collisions, and steamboats are
inspected annually by federal authorities.
The federal government has also spent immense sums in
improving the internal river and lake navigation. The prin-
cipal works are as follows : —
(i) Canals around the few points interrupted by rapids or
shoals, especially at Moline (Illinois) and Louisville. Large
sums have also been spent in improving the channels of the
Detroit and St. Mary Rivers, and especially on the duphcate
canals around the falls of Sault Ste. Marie. The lake com-
merce is enormous : the tonnage passing through the Sault
canals on the American side alone in 1902 was 32,000,000,
and the tonnage through the Detroit River was greater than
that through the Suez Canal. Though most of the Western
rivers tributary to the Ohio and Mississippi are deserted by
commerce, large sums are still spent in improving them.
5i8 Transportation. [§223
The Muscle Shoals Canal on the Tennessee has cost $3,500,-
000, to accommodate annual commerce worth about $300,000.
On the Missouri River above Kansas City there are no regular
steamers plying; yet $5,000,000 has been spent on the river
since 1890.
(2) Attempts to confine the rivers and prevent changes of
channel by a system of levees, or artificial dikes, particularly
in the Lower Mississippi Valley.
(3) Very expensive works on both the Mississippi and the
Missouri, to secure deep water by confining the channel
between walls. It is not yet certain that the expensive re-
vetments of the Mississippi will stand a phenomenal flood.
Since the Civil War the United States has expended about
$125,000,000 on the Mississippi and its tributaries, now all
paralleled by railroads.
(4) The jetty system at the mouth of the Mississippi and
other gulf ports, which, by the construction of narrow, straight
outlets confined between sea-walls, forces the rivers to dig out
the bars themselves and make deep-water channels out to sea.
Nearly all the interior canals in the country have been
constructed by the states, or by companies chartered and
favored by the states. Of these the most costly and the
most satisfactory is the Erie Canal, ;^6^ miles long, with a
summit level of 570 feet above the sea. The original cost
was $9,000,000, to which down to 1895 had been added
$56,000,000 for enlargement; the receipts for tolls down to
1883, when it was made free, were about $135,000,000;
repairs had cost about $42,000,000 ; since 1895 the state has
paid for additional enlargement $9,000,000. New York also
owns the Oswego Canal to Lake Ontario, and the Champlain
Canal to Lake Champlain, connecting thence to Canada.
The total amount spent by New York for canal construction,
without counting repairs, has been $94,000,000.
Pennsylvania tried to equal the success of New York, but
nature was not propitious. Canals were constructed up the
Juniata, up the west branch of the Susquehanna, and from
§2 24] Internal Improvements. 519
Pittsburg eastward to the foot of the mountains and northward
to Lake Erie, at a cost of $42,000,000; but, at the highest
success, boats built in sections were floated to the neighborhood
of Altoona, hoisted over the ridge by inclined railroads, and
let down to meet the Western canal. This whole system is
now abandoned, as is the Maryland canal parallel with the Poto-
mac to Cumberland and intended to cross the mountains, and
the Virginia canal up the valley of the James. Ohio has spent
$15,000,000 for canals, Illinois $7,000,000, Indiana $9,000,000 ;
but the only link now in actual operation in those states is
from Cleveland on Lake Erie to Portsmouth on the Ohio.
The capital spent in canals outside New York, aggregating
nearly $80,000,000, is not a total loss, for it cheapened trans-
portation for many years, and for some time remained a
wholesome check on railroad rates ; but many of the canals
were expensive to build, very expensive to maintain, and never
could command enough traffic to justify them.
A few profitable lines of canal exist across New Jersey and
in the coal regions ; but in the last thirty years no important
line of state canal has been constructed except the Calumet
Canal, which is virtually an outfall sewerage system for Chicago.
New York is now considering putting another hundred millions
into the Erie Canal ; otherwise, if any further canal systems
are constructed they must be built by the federal government.
224. Harbors and Internal Improvements.
Federal works for waterways and water entrances of every
kind are called "internal improvements," and are covered
by "river and harbor bills," passed commonly once in two
years. Expenditures for these purposes did not begin till
nearly twenty years after the adoption of the constitution, and
from 1806 till 1822 were confined to the Cumberland Road.
In 1808 Secretary Gallatin reported a comprehensive scheme
for roads or canals from Maine to Louisiana, and from Wash-
ington to Detroit ; and in 1816 a strong movement was made
for national aid.
520 Transportation. [§ 224
The system was attacked on constitutional grounds, first by
Madison in his veto of 1817, then by Monroe in his veto
of May, 1822, later by Jackson in several vetoes. Though
these three presidents failed to find in the constitution
any authority for such improvements, friends of the vetoed
measures discovered abundant implied powers in the authority
of Congress to regulate commerce, to establish post-offices
and post-roads, and to make war, since good roads and canals
would facilitate all those powers. The constitutional objec-
tion was repeated by Polk, Pierce, and Buchanan in lively
vetoes ; but since the Civil War it has practically disappeared
from view. In making up the river and harbor bills, the
combination between the Eastern coast interests and the
Western river interests causes these bills to appeal to both
sections ; and the Lake and Pacific coast members join in.
The appropriations for this purpose from 1822 to 1902
amount to about $400,000,000,
Harbor improvements are of two kinds: (i) Breakwaters
and piers, as protections to shipping. The Delaware break-
water in Lower Delaware Bay, and Holmes Hole off the
island of Martha's Vineyard, sometimes protect hundreds of
sail. The lake harbors on Michigan, Erie, Ontario, and Supe-
rior, especially Chicago, Cleveland, Buffalo, and Milwaukee,
have huge breakwaters. (2) The deepening of harbors, prin-
cipally by dredging, so as to keep passages open across the
bars which form where the river currents, carrying detritus,
strike the colder and heavier tide-water ; and the removing
of obstructions in the bottom of channels. From 1867 to
1899 the government spent over ^4,000,000 in undermining
a reef in Hell Gate, just above New York City ; and most
of the Southern harbors require very expensive works to reach
deep water, as at Charleston, Savannah, New Orleans, Aransas
Pass, and Galveston.
The expenditure of the federal government for these objects
is intrusted to the secretary of war, and is supervised by gov-
ernment engineers, who are military officers. Without a pre-
§225] Internal Improvements. 521
liminary survey and report on the cost of a new improvement,
it is difficult, though not impossible, to get an appropri-
ation. These estimates are gathered together and submitted
to the River and Harbor Committee of the House, which
then prepares a bill. The appropriations are very detailed,
but are subject to the general restriction that they must be
spent by the secretary of war, who may not pay out all the
money appropriated if he cannot find the place to spend it
wisely.
The great defect of the river and harbor legislation is that
small and inconsequent items are often inserted, that it is im-
possible to get Congress to appropriate once for all for a great
improvement ; hence work is delayed and interrupted by
waiting for the necessary continuing appropriations, and ex-
pensive works may be destroyed because money enough has
not been authorized to bring them to a condition where they
are safe. Government work is invariably expensive, even when
contracts are made with private parties. The expenditures
on the larger harbors and the greater rivers have stimulated
commerce ; but there are some cases of very extravagant use
of the pubHc money. For example, the canal constructed be-
tween the Fox and Wisconsin Rivers, intended to connect Lake
Michigan with the Upper Mississippi, which has cost the gov-
ernment $3,000,000, is practically of no service to navigation,
and is chiefly useful for furnishing a gratis water-power to
private mills.
225. Railroads.
Since a railroad must have a right of way, requiring the use
of the state's privilege of eminent domain, the construction of
railroads rests almost wholly on state authority. The early lines
were short, and many of the states undertook to build for them-
selves. For instance, in 1837 Michigan authorized a loan of
$5,000,000 for internal improvements, purchased a previous
private charter of the Detroit and St. Joseph Railroad, and
built a heavy wooden framework all the way as a basis for
522 Transportation. [§225
strap iron rails. In 1841 the line kept four locomotives busy,
but in 1846 it was sold to a private company. Ohio, Georgia,
North Carolina, and other states built pieces of state road at
different times ; and Massachusetts aided in the construction
of three roads to the Hudson River, — the Boston and Albany,
the New York and New England, and the Hoosac Tunnel
Line. Of all these state systems, a few score miles owned
by the states of Georgia and North Carolina, but now leased
to private companies, are the only relics.
There were various reasons for the substitution of the private
system, (i) State railroads had to stop at the state boundary;
whereas private roads, with charters in both states, easily ran
from one to the other. (2) The Western states were poor and
heavily in debt, and were glad to realize on their property.
(3) State railroad management was subject to powerful local
influences. (4) No state railroad in the whole country ever
paid a steady interest on the cost of its construction.
The system of private railroad charters also had its defects.
(i) Most early communities were eager to get railroads, and
were over-generous with charters. Some states, indeed, regu-
larly inserted provisions retaining to the states the right to buy
in the railroads at any future time, and others made restric-
tions as to the rates of fare ; but few states, if any, required
the publication of accounts in ways which would protect in-
vestments, or from the beginning adequately taxed either the
road-beds or other property of the railroads. (2) Many of
the early private companies failed : the original stock of the
Erie Railroad, for instance, was all wiped out of existence
twice before it became a paying property.
Nevertheless, with interruptions during the various com-
mercial panics, the construction of railways has steadily gone
forward. In 1831 there were 140 miles; in 1841, 3,400 miles;
in 1851, 10,000 miles; in 1861, 30,000 miles; in 1871, 50,-
000 miles; in 1881, 100,000 miles; in 1891, 164,000 miles;
in 1 901, about 200,000 miles. This does not include second
tracks and sidings, which make about 70,000 miles more.
§ 225] Railroads. 523
The capitalization of the roads was nearly $13,000,000,000 in
1901 ; they carried 600,000,000 passengers, and over 1,000,-
000,000 tons of freight; and they earned $1,600,000,000, of
which over $500,000,000 was net. About 1,000,000 persons
are employed in the railroad service.
The enormous traffic of railroads makes them the most im-
portant private interest in the United States : they affect every
community, and nearly every individual. That the railroad
business is conducted so smoothly and easily, that only about
one passenger in a million is killed or injured, that freight
reaches its destination in most cases, that the employees are
kept busy and paid, is a tribute to the great organizing power
of the American.
Railroads come under the general legal principle of the
"common carrier," — that is, they are compelled by law to
carry every decent person who desires passage and can pay
the fare, to receive everybody's shipment of freight, and to
charge all persons the same rate for the same service. Pas-
senger rates are stable and little subject to manipulation, except
that too many people who can best afford to pay their fares get
free transportation. Through fares are very low, — about two,
two and a half, or three cents a mile for long distances ; local
fares run up from two to ten cents a mile according to local-
ity, and are higher than in most European countries.
Railroad management is, however, subject to many irregu-
larities which do not always appear on the surface. It is easy,
for instance, to discriminate between shippers by giving special
rates on heavy shipments ; and especially by charging the
same nominal rate to all comers, but allowing rebates to the
favored. Since the greater part of railroad business passes
over the lines of at least two companies, much of the business
is done by fast freight and parlor-car companies, which can
be so managed as to take the profit away from the ordinary
stockholder of the railroad. Then, in the consolidation of
railroads, minority stockholders, or the owners of small lines,
are often badly treated.
524 Transportation. [§225
To face these difficulties there are only two agencies, the
states and Congress. Since nearly all the charters spring
from the states, the states may prescribe regulations for the
speed of trains, the character of the accommodations, the pro-
tection of grade crossings, the management of stations, and like
matters ; and they may regulate rates on business which begins
and ends within a state. About half the states in the Union
have railroad commissions, some of them empowered to issue
positive directions to the railroad companies, others having
only the right of investigation and public report. In the
seventies, the so-called " Granger movement " was a pressure
on the state legislatures to reduce railway rates. Later the
Supreme Court held, in the case of Sf. Louis, etc. v. R. R.
Co. (1895), that any state regulation must be "reasonable,"
and that the courts must judge whether a given rate is " rea-
sonable " in the legal sense. No state law can control the
interstate commerce of persons or goods : if the states attempt
to tax railroads or steamship companies on interstate business,
or to regulate such traffic by inspection laws, the Supreme
Court disallows the statutes. 1
By 1880 the railway business got into confusion, through the
reckless competition of parallel lines. The trunk lines from
Boston, New York, and Philadelphia to the Western cities
tried to protect themselves by "pools," — -"that is, agreements
under which each of the trunk lines was to have a certain share
of the through tonnage and receipts. At the same time, in
order to secure through business, and especially export busi-
ness, the railroads got into the habit of making lower rates
from the great distributing centres of the interior to the sea-
board, and vice versa, than on shorter distances on the same
lines. For instance, the rate from Chicago to Harrisburg was
regularly higher than the rate from Chicago to New York, to
the great distress of the people of the smaller cities.
The question grew so serious that in 1887 Congress passed
the drastic Interstate Commerce Act, which introduced many
reforms, (i) The rates of transportation for both passengers
§225] Railroads. 525
and freight must be posted publicly in large type, and may
not be raised or lowered without notice. (2) Railroads are
compelled to furnish abstracts of their accounts in a pre-
scribed form. (3) Discriminations and secret advantages are
absolutely prohibited. (4) Both pools and short-haul discrim-
inations are positively forbidden. (5) To carry out these
provisions a commission of five members was organized, each
to have a six-year term, with power to investigate and hear
complaints, and to direct railroad or steamship companies to
remedy them.
The commission set to work, but in its existence of fifteen
years it has not accomplished what was hoped from it. It is,
both administrative and judicial. Petitions to it take the
form of suits against railroad companies, with counsel and
judicial procedure ; this makes it an anomalous court, and it
has not sufficient power to execute its own decisions. It is
difficult to get evidence of special rates, because neither the
persons who profit by them nor the railroad will compIa.in ;
and, if summoned by the commission, they sometimes refuse
to testify, on the ground that such testimony may criminate
them. The commission has obtained fair returns of the rail-
road accounts, which it publishes in annual reports ; it has
done much also to bring to public attention cases of railway
discrimination ; it has published its decisions in a series of
regular judicial reports, and has thus established a body of
railway law : but it has never succeeded in breaking up dis-
criminating rates to large shippers, or secret concessions to
friends of railroad officials.
The struggle for business between the trunk-line roads has
been reduced by the steady progress of railway consolidation.
The New York Central Road bought up the West Shore and
Nickel Plate Lines from New York to Chicago in order to
stop competition ; the Pennsylvania Railroad got control of
its rival, the Baltimore and Ohio; and about the year 1900,
owners of the consolidated systems came to a friendly under-
standing, which practically means that these four trunk lines
526 Transportation. [§226
are conducted as one system, that they can dictate to the
weaker roads, such as the Erie and the Grand Trunk, and
that business can be divided by a quiet understanding, with-
out violating the pooling clause of the Interstate Commerce
Act. The roads from Chicago to the Mississippi have come
under a similar understanding: in 1901 an attempt was
made to consolidate the Northern Pacific with the Great
Northern ; it was resisted in the courts, but the two systems
are operated under one management. The Southern rail-
roads have also been combined into a few large systems ;
and the general policy of all the railroads in the country
is probably dictated by less than twenty persons, who act
through a friendly understanding. Some observers feel con-
fident that this is simply a stage on the way to a national
ownership of the railroads.
226. Public Aid to Railroads.
Besides the construction of a few state railroads in 1830—
1850, the national, state, and local governments have fre-
quently given aid to new roads without controlling them,
(i) The right of way of many of the railroads through
public lands has been given by the United States ; through
state lands, by states ; and through streets, by cities. The
New York Central Road runs the whole length of Syracuse
on grade in the middle of the highway, by permission of
the city government. (2) The states have frequently sub-
scribed for stock in railroads: Virginia between 1837 and
1857 made more than twenty such investments. (3) The
states have frequently given or lent money to railroads : in
i860 six railroads together owed the state of Alabama
nearly $1,000,000; and the state of Massachusetts in 1867—
69 lent $3,600,000 to the Boston, Hartford, and Erie Rail-
road. (4) Local governments have frequently been author-
ized to subscribe for stock, or to make cash bonuses to
railroads ; and many counties, towns, and cities have run
heavily into debt in order to bring new railroads. The city
§ 226] Public Aid to Railroads. 527
of Baltimore has always been a heavy stockholder in the
Baltimore and Ohio Railroad; and the city of Cincinnati
now owns the Cincinnati Southern Railroad, which cost over
$20,000,000. (5) Railroads have practically had public aid
by an almost universal system of low taxes.
The United States began its relation with railroad con-
struction by inaugurating a system of land grants in 1850.
The Illinois Central and other roads radiating west and
northwest from Chicago, .though chartered by the states,
received heavy national grants of land. When in 1862 the
Pacific railroads became necessary, most of the line was
through territories ; and therefore the federal government
itself enacted the charters, and bestowed on the companies
land grants aggregating about 100,000,000 acres. The usual
method of land grants was to give to the railroads the
alternate sections in a strip of land sometimes twenty miles
wide, and to sell the remaining sections at double price.
The money value of these gifts is hard to estimate, but it
was probably not less than $200,000,000. The United
States also advanced money to the Pacific railroads under
the act of 1864, by issuing bonds (at $16,000 to $48,000
a mile for completed roads) to four companies, — the Union
Pacific, Kansas Pacific (including the Central Branch), Sioux
City and Pacific, and Central Pacific (including the West-
ern Pacific). Of the $64,000,000 issued, $55,000,000 went
to the two roads for the line from Omaha to San Francisco.
As the interest was paid on these bonds it was charged
against the railroads, with the result that, when the loan
matured about 1899, the debt was $136,000,000. As the
government stood ready to take over the roads if the debt
was not paid, the owners of the Union and Central Pacific
Roads found the money to pay the principal and interest paid
by the United States. The Kansas Pacific and Sioux City
settled for about the principal. The government received
$126,000,000, so that it was out of pocket only about $10,-
000,000 and the interest on its interest payments.
528 Transportation. [§ 227
227. City Traction Systems.
In cities the carrying of passengers has long been an
important business. The earliest form of public travel was by
stages or omnibuses, which ran on the regular streets and were
subject to all the inconveniences of small capacity and bad
roads. The Fifth Avenue stages in New York City are one of
the few remnants of this system. About 1845 began the first
city railroads, very small and crude affairs, with strap rails
bolted to wooden stringers. Such lines appeared in all the
considerable cities before the Civil War, and down to about
1890 the horse-cars continued to be the only practical system.
The horse-railroad system had about reached its limit : it
occupied in the streets the length of both horses and cars,
was much interrupted by storms, and could be carried over
steep grades only by putting on extra horses. Various forms
of motor had been tried, — steam, compressed air, cable,
and electric storage battery, — but none of them fulfiUed'the
conditions.
The question was" solved by the perfection of a method for
taking power from a continuous wire ; and the effect was to
revolutionize the whole business. Heavier and larger cars
were at once introduced, some of them seating seventy-five
persons, a half more than the ordinary railroad passenger car.
It is easy to increase the number of cars in rush hours ; the
space necessary for horses is saved ; speed is readily raised to
any point consistent with the safety of ordinary travel, and
often much above it. Almost everywhere the trolleys are fed
by wires strung overhead, and fatal accidents are too frequent.
In New York City most of the trolley wires are all placed in
slots below the streets.
The convenience of travel increased so much that the num-
ber of passengers rose unexpectedly : the consolidated Bos-
ton lines in 1880 carried 59,000,000 passengers; in igoOj
201,000,000. The heavy cars required the complete rebuilding
of the road-beds and the introduction of heavy rails, which.
§ 227] City Traction. 529
however, are in most places so carefully laid as not to damage
wagon wheels. A service supplied with power from central
depots and involving large capital tends toward consolidation ;
and in nearly every city in the Union there is now only one
large traction company, or perhaps two.
The question of rapid transit in New York City is of special
difficulty, because the city is situated on a long and narrow
island, with a great rush of travel, — down town in the morn-
ing and up town at the end of the day. The first solution was
there found in elevated roads, of which there are four, stretch-
ing the whole length of the island from north to south, besides
five in Brooklyn. These elevated roads, built from 1873 to
.1890, under acts of the legislature, received the valuable privi-
lege of building their lines in the public streets. Even the
legislature, however, could not deprive the abutting property-
owners of their rights, and they brought suit against the com-
panies for damages. The companies fought off and delayed
the suits, until it became evident that along most of the lines
property was worth more after the building of the roads than
before ; hence the actual damages paid were small. The ele-
vated roads of New York now carry about 235,000,000 people
annually, and have proved very profitable investments to their
owners.
The example of New York has been followed by only two
other cities : Chicago and Boston both have elevated struc-
tures, built by private companies. In Boston the elevated and
surface roads are managed together, by a system of free trans-
fers from one to the other.
i . The traction companies in American cities are wealthy and
powerful. The Philadelphia Traction Company has about 450
miles of track within the Umits of Philadelphia, employs 7,400
tnen, and expends large sums in construction and mainten-
ance. As the cities have grown and passengers have increased,
the surface railroads have striven manfully against the three
obvious methods of giving advantages to the public. ( i ) They
have not reduced the fare, which throughout the Union is
34 ^
53° I'ransportation. [§ 228
normally five cents, though in many foreign cities short-dis-
tance passengers pay as low a fare as one cent. (2) They
have not increased the accommodation so as to give everybody
a seat. In Paris nobody is admitted to the interior of a car
unless there is a seat for him. (3) They have not paid suffi-
cient sums for their privileges. The profit of a traction com-
pany really results from its right to build in the public highway :
the New York elevated roads, for instance, have issued about
$10,000,000 in bonds, based upon the value of their fran-
chises, that is, of their privileges.
For locations, for extension of lines, for increase of tracks,
and so on, the traction companies are dependent upon the city
governments for the time being ; and there have been some
startling cases of the buying of franchises from city councils.
Where money is not used, there is a regular system of securing
the support of state and city legislators by giving them the
privilege of designating men for employment by the traction
companies ; in some cities nearly every man on or about the
street cars owes his place to the influence of a politician.
This means an increased expense in running the road, and of
course a company does not submit to such influence unless it
sees something to gain through the favor of those who have
votes.
228. Country Electric Lines.
Since about. 1888 has developed a new system of country
transportation, the electric trolley car, which runs in all
weathers, can carry as many people as ten stages', reaches a
speed of twenty miles an hour or more, and receives its
power from a central station, which is kept up at a moderate
expense. The limit of the old horse-cars radiating from cities
was about an hour's travel, six miles : many electric lines
habitually bring people into the cities from ten, fifteen, or
twenty miles away ; and such lines are agents in redistributing
city populations and making suburban life easy.
This is only part of their service : throughout the United
States, trolley lines are being pushed out into the open country.
§ 228] Country Electric Lines. 531
twenty, thirty, or forty miles ; adjacent cities are connected ;
country towns are strung like pearls in a necklace ; and remote
villages are brought into touch with the rest of the world.
The country trolley lines have usually been local enterprises at
first ; but, as they have proved profitable, syndicates of heavy
capitalists have been formed to buy up the short lines, extend
them into long stretches, and combine them into systems.
The trolley lines in a radius of about fifty miles from Cleveland
have nearly all been brought into one ownership.
The prime advantage of the trolley lines is their cheapness
of construction ; for most of them are built on the highways
widened for the purpose if necessary ; and where they strike
off on their own rights of way, it is over cheap land easy to
acquire. The trolleys need ho station buildings, and concen-
trate their car houses and power houses in narrow spaces. As
they run on the surface, they need neither bridges over the
highways nor gates or watchmen; and the switching is done
by the men on the car. The unit of service, the ordinary
trolley car, is light in comparison with the locomotive and one
car, which is the minimum of railroad service. Trolley lines
create their own business : wherever they extend, people move
in, houses are built, and the habit of travel is easily formed.
Many of the lines are by their charters confined to conveying
passengers ; but in some parts of the country they carry bag-
gage, express, mail, and light freight. Here is the opportunity
for developing the system : wherever they extend they ought
to supersede long wagon hauls, and to develop an express sys-
tem for small manufactures and for the products of the farm
and market garden.
The short trolley lines radiating from cities get a large
amount of local travel which would otherwise go to the rail-
roads, and for distances of twenty-five to fifty miles they are
beginning to take away rail passengers. Should the consoli-
dation continue so that long-route cars can be run, they will
compete on distances of from a hundred to two hundred
miles, thus cutting off a profitable part of the railroad busi-
532 Transportation. [§ 229
ness. Some railroads are so far aware of this competition that
they have bought up the trolley lines, not to close them, but
to carry them on in harmony with the regular railroad ser-
vice, which must always hold its own for through travel and
for heavy freight.
As yet the relation of the states to electric lines is little
developed. A large part of the trolley mileage is on the sur-
face of public streets and roads ; and, as these lines spring
out of the previous local lines they usually need the consent of
the local authorities for their location, and are subject also to
local regulations as to fares, rate of speed, fenders, protection
to passengers, and so on. Eventually the states will be
obliged to enact systems of laws for the control of trolley
systems, as they have done for railroads.
229. City Ownership of Traction Lines.
As a remedy for the present difficulties in transportation
within the cities, municipal ownership has of late years often
been suggested. In the earlier stages of transportation there
seemed no necessity for such a measure : passengers were
transported by anybody who could furnish the capital ; if
street A were occupied by one company, a competing com-
pany could have street B. The gradual consolidation of the
companies, and the occupation of every important thorough-
fare by rails, have long since put an end to the possibility of
competition. The street railroads have the use of definite
strips of the public streets, and are bound to furnish transpor-
tation at the regular rate for all the people who want to be
carried. Unless the state and city governments are vigilant,
there will in time be no sufficient inducement to the owners
of the systems to accommodate the public or to take their
fair share of public burdens.
So little was impending monopoly foreseen that there was at
first little pressure for perpetual franchises : by the original
charters, the car companies received franchises running from
twenty- five to fifty years. Since the introduction of the elec-
§229] City Ownership. 533
trie cars, some of the cities — for example, Philadelphia and
Pittsburg — have given perpetual franchises for all the avail-
able routes within their limits, without exacting a dollar in
payment. In Philadelphia immensely valuable franchises
were given away, although a responsible man offered to pay
^2,500,000 in cash for those privileges.
The great political power of the traction companies, the
importance of the service which they render, and the diffi-
culty of getting adequate payment for the use of the public
streets suggest public ownership as a remedy. That system
has been tried in only one American city : the legislature of
Michigan in 1899 passed an act authorizing the city of Detroit
to own and operate the street railroads, the traction company
to be indemnified for its property ; this act was, however, held
unconstitutional by the Michigan Supreme Court in July, 1899.
The system of municipal ownership prevails in Toronto and
in some other Canadian towns ; and many of the provincial
cities of Great Britain, as Huddersfield, Lee, Glasgow, Shef-
field, and Liverpool, have municipal tramways.
Two American cities have provided at public expense for
underground subways, which are to accommodate a part of
the traction lines. The Boston subway, about three quarters
of a mile long, was constructed in 1 896-1 898, at a cost of
about ^4,000,000, by a commission authorized by the state,
and with a previous understanding that it should be leased to
the West End Street Railway Company for a period of
twenty years, at a rate which would pay interest on the cost
and eventually extinguish the principal. It is now operated
in connection with both the surface and the elevated lines
through the heart of Boston.
. In 1900 the city of New York undertook a similar but vastly
greater task, — the construction of an underground system,
much of it hewn through solid rock, 25 miles from Brooklyn
to the Bronx, passing under the East River and across Man-
hattan. This great public work is to cost $38,000,000 ; it is
to be leased for fifty years on terms similar to those of the
534 Transportation. [§ 229
Boston system, and is to be operated in cooperation with
the elevated roads.
If it is suitable that cities should own street railway systems
underground, it is difficult to see why they may not own them
on the surface or in the air. Hence, to many cities the idea
has come that the way out of the trouble is for them to buy
up the existing roads and build the new ones. The objections
are obvious. Can city governments, which carry on their
regular functions at large expense and with confusion and
corruption, — can they add so important a service as the
street railways? Would a political motorman or division
superintendent give better service than the employee of a
company whose interest it is to save wherever possible?
Could city governments resist the pressure to build non-paying
lines in thinly-settled districts, or to reduce fares below the
actual operating expenses? Can city officials be trusted with
business functions, with the management of great industries?
The answer to these questions is briefly that, so far as , the
personnel is concerned, it is now about as political as it would
be under a city system. In some parts of the country mu-
nicipal gas and water are thought to go beyond the province
of municipal government ; yet other cities successfully main-
tain them. The experience of the English and Scotch cities
in municipal tramways is on too small a scale to serve as a
basis for argument as to municipal ownership in America.
The main arguments for public ownership are that the
street railway is a part of the public street and of the system
of pubhc movement ; that it is impossible for one set of
authorities to control the edges of the street and another to
control the middle ; that public ownership is the only means
by which the advantage of increased travel and mechanical
improvements can be secured to the public. In 1902, on a
special vote taken in the city of Chicago to ascertain the
opinion of the people of that city on the acquirement of the
whole system of surface traction by the city, the vote was
about four to one in favor of it.
Part X.
General Welfare.
CHAPTER XXVIII.
EDUCATION.
230. References.
Bibliography: U. S. Bureau of Education, List of Publications,
1867-igio {Bulletin, 1910, No. 3); Bihl. of Edncation (annual and
monthly summaries in Educational Review, 1900-1908, and Bureau of
Education, Bulletin, 1908-). Brookings and Ringwalt, Briefs for
Debate (1896), Nos. 53, 68; Channing, Hart, and Turner, Guide (1912),
§§ 149, 165, 200, 274; W. B. Munro, Bibl. of Municipal Govt. (1915),
§ 56; A. B. Hart, Manual (1908), §§ 97, 98.
History of Education: P. Monroe, Hist, of Education (1905);
E. G. Dexter, Hist, of Education in U.S. (1904); C. F. Thwing, Edu-
cation in U.S. since Civil War (19 10); R. G. Boone, Education in the
U. S. (1889); H. B. Adams (ed.). Contributions to Am. Educational
Hist. (1887-1903, 35 Nos., U. S. Bureau of Education, Circulars of
Information).
Education in General: C. W. Eliot, Am. Contributions to Civili-
zation (1897), Nos. 2, 8, 9; A. T. Hadley, Education of the Am. Citizen
(1901); J. W. Jenks, Citizenship and the Schools (1906); Cyclop, of
Am. Govt. (1914), Arts, on Coeducation and Coordinate Education;
Education, Agricultural; Education as a Function of Govt.; Education,
Board of; Education, Bureau of; Education, Compulsory; Education,
Industrial; Education, Military and Naval; Education, Recent Tenden-
cies in; Education, Technical; Educational Administration; Educa-
tional Land Grants; Educational Statistics; School District; School
Finance; School Funds, State; Schools, Industrial; Schools, Public,
Normal; Schools, Public, Professional; Schools, Public, System and
Problems of; Schools, Trade; State Universities; H. A. Hollister,
Administration of Education (1914); J. F. Brown, Am. High School
(1909); P. H. Hanus, Modern School (1904); W. B. Munro, Municipal
Administration (1916), ch. ix; C. D. Wright, Practical Sociology (1909),
ch. xi. — Sources: P. S. Reinsch, Readings on Am. State Govt. (1911),
ch. vi.
Current Discussion: U. S. Commissioner of Education, Annual
Report (1868-) annual reports of state superintendents, city
superintendents, and secretaries of state boards of education, city
school boards, and school committees; National Educational Assoc,
535
53^ Education. [§231
Proceedings (1858-); Committee of Ten, Report on Secondary
School Studies (1893); Committee of Twelve, Report on Rural Schools
(1897); Committee of Fiiteen, Report 071 Elementary Education {iSgs);
Report of Committee on College Eivtrance Requirements (1899); School
Review (1893-); Educational Review (1891-); Committee of Five,
Study of Hist, in Secondary Schools (191 1); New England Assoc, of
Colleges and Preparatory Schools, annual Addresses and Proceedings.
231. History of American Education.
The federal constitution has often been misconstrued as
giving Congress authority to do anything which is for " the
general welfare." The clause referred to gives Congress
power to " lay and collect taxes, duties, imposts, and excises,
to pay the debts and provide for the common defence and
general welfare." The power to lay taxes for the general wel-
fare does not give power to do other things for the general
welfare ; and the clause is not an enlargement, but a limita-
tion, even of the taxing powers. On the states and local
governments falls the responsibility for the general welfare.
No part of the functions of government is more important
than to further the intellectual and moral uplifting of the
people ; and, with the exception perhaps of the Dutch, the
New England colonists were the first to realize that children
are educated, not for themselves or their parents, but that
they may serve the state. Some of the English schools in the
sixteenth century were supported in part by parish or town
taxation. Formal public education in the colonies began in
1636, when the government of Massachusetts contributed to
the founding of Harvard College, which is still a respectable
institution. In 1647 the General Court of that colony passed
an act requiring a town of fifty families to maintain a school,
and a town of one hundred families to maintain a grammar
(that is, a Latin) school. A similar act was passed by Con-
necticut before 1650. In most communities these schools
were not free, inasmuch as those who could afford it paid
fees ; nor were they public, inasmuch as they were not open
to girls.
§ 23i] History. 537
The pre-Revolutionary colleges were Harvard (1636),
William and Mary (1693), Yale (1701), Princeton (1746),
Kings, now Columbia (1754), University of Pennsylvania
(1759, reorganized 1779), Brown (1764), Rutgers (1766),
and Dartmouth (1769), all of which were helped from the
colonial treasuries. Just before the Revolution there was a
movement for the establishment of endowed secondary
schools : among them Phillips Andover, Phillips Exeter, and
other -New England academies; preceded by the William
Penn Charter School which was founded in 1689. Neverthe-
less, down to the Revolution both schools and colleges were
ill-housed and poorly equipped, with narrow curricula taught
perfunctorily. The lower schools went little beyond reading,
writing, and ciphering ; in the secondary schools appeared
some classics ; in the colleges the studies were chiefly Greek,
Latin, and mathematics, with a little book science and in some
cases Hebrew. Previous to the Revolution, no such thing as
a technical or professional school of any kind existed in the
United States.
After the constitution of 1787 new colleges were founded,
among them several state institutions supported almost wholly
by taxation, especially the universities of North Carolina and
Virginia. Professional schools began to spring up, beginning
with the medical schools of the University of Pennsylvania
and Harvard, soon after followed by law schools and distinct
theological schools. Academies arose in many parts of the
country, and proved effective centres of education. In the
first third of the nineteenth century appeared church schools
and colleges. Yet nearly all the education of that time
depended upon the personal character of the presidents or
principals, and of the college and school teachers; methods
were still dry and lifeless ; text- books were poor ; and there
was little in the way of libraries and apparatus.
Meanwhile the common schools lagged behind. In 1838
Horace Mann, first secretary of the Massachusetts State Board
of Education, pointed out the three fundamental defects of
53^ Education. [§231
the corrtmon schools in the country, and to a large degree in
the towns : poor teachers, poor buildings, and poor methods.
Other New England states \yoke up to their imperfections ;
and New York and Pennsylvania, in which up to this time
there had been no general systems of common-school educa-
tion, now began to found public schools. Ohio and the states
farther west used immense government grants of land for school
purposes ; but in all parts of the country the rural school
developed very slowly down to the Civil War.
In most of the large Northern cities, public high schools
began to spring up about 1850, carrying education above the
grammar schools, and furnishing for the cities what the acade-
mies furnished for many country towns. Still all was chaotic ;
in many states the country schools were held but a few months
in the year ; and even in the cities there was little school
organization.
After the Civil War came a tiew era in education. The city
schools were organized into systems, with regular courses of
study leading from the first year in the primary to the last
year in the high school, — a period of eleven or twelve years
of continuous schooling. Buildings were constructed with due
reference to light, heat, and ventilation. The high schools
began to increase in number and in size. The state univer-
sities already established began to grow, and in 1862 the states
received special land grants from Congress for agricultural
colleges ; in some instances these funds were applied to the
preexisting state universities. The colleges throughout the
country began to come into closer relations with academies
and high schools, which became " feeders " to the higher
institutions. Many of the older colleges became universities,
by adding professional and technical schools. The churches,
especially those made up of immigrants from other coun-
tries, established not only the old type of colleges and
boarding-schools, but also large day-schools in the cities.
In 1865 Vassar College was opened, the first of several
institutions to give a thorough college education to women
§ 23 1] History. 539
only. Co-education, which had long been usual in country
schools and in some academies, and which was adopted as the
fundamental principle in Oberlin College in 1841, was now
acknowledged in nearly all the state universities. Normal
schools for the training of teachers, strongly advocated by
Horace Mann, spread through the country. Public techni-
cal schools — the first one established in Pennsylvania in
1854 — increased; and most of the great universities now
include scientific schools. Professional schools in law, medi-
cine, and theology have increased in number, in length of
course, and in thoroughness; and in 1874 Johns Hopkins Uni-
versity inaugurated the first distinct graduate school for the
training of experts and of college and secondary teachers.
At present the provision for education in the United States
is as follows : — ( i ) Individuals and corporations carry on
schools and colleges at their own expense, from the fees of
pupils, or by endowments, with little control from any public
authority.
(2) The federal government has a " Bureau of Education,"
with a commissioner whose public function it is to collect and
disseminate information ; he issues a bulky and important
annual report, and monographs ; he is also one of the principal
educational leaders of the country, a frequent speaker at educa-
tional meetings. The government maintains a system of city
schools in Washington, many schools for the Indians, and the
admirable military and naval academies ; and it keeps up a
naval observatory, a geological survey, the Smithsonian Institu-
tion, and other scientific establishments which are really educa-
tional. Many suggestions have been made that it ought to
found a national university at Washington, a plan which would
be carried out but for the existence of more than twenty large
and well-managed endowed or state institutions.
(3) Most of the states maintain some forms of university or
agricultural college, or both; and systems of normal schools.
In addition, the state governments exercise some supervision
over local schools, particularly in the country ; and in some
540 Education. - [§ 232
cases, through invested funds or by direct appropriation, they
add to the school revenues.
(4) The locahties are responsible for instruction in common-
school grades and high schools. They tax themselves to main-
tain such facilities, and elect boards of education, which in turn
choose superintendents and other school officers. The most
serious defect of our educational system is that most states do
not sufficiently insist that the localities shall provide schools of
a high character, with properly-trained teachers.
232. Private and Church Schools.
Few American communities have reached the German system
of requiring that all children attend school ; and, of those that
do have this requirement, Masssachusetts is almost the only state
which really makes the provision effective by providing a system
of truant officers to follow up delinquents. Not one has adopted
the French principle that no child can attend a school, or take
lessons of a private tutor, unless the school or tutor has received
the license of the state to teach. It would be a reasonable use
of the state power which licenses druggists, and in some states
plumbers, if the teachers in all American schools, private as
well as public, were compelled to satisfy public examiners that
they were educated persons.
' A large part of our education is carried on by private institu-
tions. In many small communities there are small " select
schools " for children of neighboring families able to pay fees.
Other schools are carried on as commercial enterprises : such
are the business colleges, common throughout the Union ;
boarding-schools, often of a military type ; private normal
schools ; the college preparatory schools in cities ; and even a
few colleges are run for profit.
Next come a variety of endowed private schools, some of
them intended especially for the sons of wealthy men who can
afford considerable fees, others more democratic. Some such
institutions draw boys or girls from all over the Union, and are
therefore really national schools. Many of the endowed acade-
§ 233] Private Schools. 541
mies are denominational, in the sense that the religious services
are those of some particular church, as the Episcopal, or the
Baptist, or the Congregational. Another type of school is es-
tablished by a church solely for its own members, and with the
distinct purpose of perpetuating the religions beliefs of that
church. Such are the Catholic parochial schools, established
wherever they can be afforded ; and the similar schools of the
German Lutherans in the Western and Northwestern states.
All faithful and devout parents are expected by the ecclesias-
tical authorities to send their children to these schools.
In the year 1889 the legislature of Wisconsin took notice of
the fact that many such schools in that state were conducted in
other languages than English ; accordingly the Bennett Law was
passed, requiring all schools, public and private, to give their
instruction in English. The result was a political upheaval, and
the next legislature hastily repealed the Bennett Law. The
principle, however, was sound : for it is contrary to the interests
of the community to educate children without a fundamental
training in the language of this country ; or to foster the con-
tinuance of islands of foreign-speaking population, since they
tend to become separate communities, hard to reach on public
questions.
233. Public Schools.
While for about seventy years it has been a fixed principle
that the state is bound to furnish an education for every child
who desires to avail himself of public instruction, only in the
last forty years has this principle extended to secondary educa-
tion in all the larger places ; and only in the last few years have
public high schools developed with great rapidity in the South-
ern states, which have hitherto been unprovided.
In few states is there a systematic public control even of the
pubHc .school. The widespread principle is that each com-
munity must keep up schools of a certain class, — the so-called
" common " schools in country districts, primary and grammar
schools in towns, high schools in cities ; but each town and city
^42 Education. [§ 233
has large freedom of instruction, and selects its own teachers.
A few states go much farther : Massachusetts, for instance, pro-
vides by law that every town must maintain a high school, or
pay the tuition of its children in the high school of a neighbor-
ing town ; that every high school shall include a specified list
of subjects in its curriculum ; and that the town must raise suffi-
cient money to provide adequate instruction in all those
subjects.
Nearly every state exercises more or less supervision through
a state superintendent of education, whose powers are usually
those of investigation and admonition ; and through county
superintendents with similar powers. In Massachusetts, every
town must be in the district of a paid superintendent. In New
York the state control is more centralized and effective than
anywhere else. The Board of Regents of the State University
is really a central educational board, presenting subjects for the
common and high schools, and holding its own examinations of
pupils.
Most states require all teachers in public schools to hold cer-
tificates gained in examinations, usually conducted by state or
county superintendents ; but tlie examinations commonly test
a low standard of learning. Some states have a text-book
system, by which books are selected for a series of years by a
board ; and in California text-books are prepared by state
authority.
The smallest unit of school administration is the school dis-
trict, which in many states has its own board, raises its own
taxes, and appoints its own teachers. A boasted advantage of
the district school is that the younger children listen to the reci-
tations of the older, and hence everybody knows something
about everybody else's lesson. In fact, however, the district
school is wasteful and inefficient : it is scrappy, for sometimes
forty different classes have to recite within five hours ; the
teachers are not trained in all their subjects or for all the ages
which they teach ; and often they are themselves scantily edu-
cated. In some parts of the country, neighboring districts com-
§ 2;^^^ Public Schools. 543
bine to build a graded school, and at the public expense carry
the distant children to and from school. This system saves
much expense of care and maintenance, and makes possible,
for a somewhat higher rate of taxation, a classification of the
children which is otherwise possible only in towns.
The graded schools of the small towns are well housed, but
do not insist upon properly-trained teachers, and hence do less
than they might with the money that they spend. In the elabo-
rate school systems of cities with populations of from 50,000
to 200,000, we look for the best results of the American public-
school system. Such cities usually have vigorous superintend-
ents, backed up by lively public interest ; and the number of
children is great enough to allow complete grading. Many
cities have public kindergartens, which take children of four to
five years of age in hand and teach them simple beginnings.
The next division is usually the primary, extending over three
to six years, followed by about four years of the grammar
school ; these two systems taken together are often called simply
"the grades." Children are moved up from grade to grade
commonly in the middle, as well as the end, of the school year ;
but in some American schools it is not very hard for quick chil-
dren to skip a grade and so get out of the iron machinery of
promotion. In most school systems, the normal age for ending
.the grammar school is fourteen to fifteen.
In order to utilize the plant, and to provide for those who
cannot be accommodated in regular school sessions, night
schools and night high schools have grown up ; and vacation
schools are now frequent.
At every age after about six years, the school children fall off
in numbers : in a city where 10,000 children enter the school
every year for the first time, about 6,600 go up to the gram-
mar schools; of these about 1,775 go to the high schools; and
not more than 350, or one in twenty-eight, graduate from the
high schools.
The high school is in many ways the most important part of
the system : it completes the public-school training ; it offers
544 Education. [§ 234
an opportunity for the willing and the gifted to go farther ; it
has laboratories and other opportunities of training outside of
books ; it presents a variety of courses, either by permitting
pupils to make some selection out of many subjects, or (of late
years) by providing a system of parallel schools, as a classical
high school, an English higli school, a manual-training high
school, and perhaps a distinct commercial high school. In
range of studies, intelligence of method, and thoroughness of
work, good high schools now go farther than good colleges went
fifty years ago : except for the close personal associations of
college life, high-school graduates of to-day are getting a better
and more serviceable education than was furnished for any of
their grandfathers.
234. Endowed Universities and Technical Schools.
English university education, since its foundation nearly a
thousand years ago, has been the function of private chartered
institutions such as Oxford and Cambridge. In America the
state governments incorporate colleges, give them authority to
confer degrees, aid them with tax exemptions and often with
money gifts, and support many of them. By tradition, the
organization of a university includes a college, or academic,
department leading up to the degree of A.B. Upon or along-
side the college department have grown up professional schools,
offering the M.D. in medicine, LL.B. in law, B.D. in theology,
and Ph.D. for graduate work, together with a B.S. in an under-
graduate technical or scientific school ; in some cases there
are also special schools of dentistry, finance, forestry, music,
art, agriculture, veterinary medicine, and other subjects. The
professional schools often exist separately, but the strongest
ones are now parts of some university. Many whimsical
degrees are conferred by poor colleges, as M.W., " Maid of
Wax Works," and B.S.D., "Bachelor of Scientific Didactics."
The administrative organization of such institutions shows
many types. Under most of them college presidents hold life
positions of dignity, are much in the public eye, and become
§ 234] Technical Schools. 54^
great forces in public and social life, (i) The most common
form is board government, in which trustees are the motive
force, the president serving as an executive to carry out the
directions of the board. (2) In faculty government, — the
German method, — the actual teachers make appointments to
vacancies ; it is infrequent in America except in medical
schools. (3) A third type, now steadily gaining ground,
is presidential government, in which the president initiates
educational changes and makes appointments (usually with
the confirmation of some board), and exercises strong in-
fluence over the financial management. This responsibility
tends to keep the various parts of a university in harmonious
relation, and makes possible a systematic plan of education.
Technical education has been of much later . growth than
collegiate : only one of the large technical schools, the Rens-
sellaer Polytechnic of Troy, was founded earlier than 1839.
Although intended to prepare engineers, chemists, geologists,
and other masters of applied science, some of these schools
have liberal courses, including modern languages, history, and
economics, and furnish good all-round training.
The " Report of the Commissioner of Education " for 1899-
1900 enumerates about 460 private universities, colleges, and
technical schools, with an enrolment of 47,000 men and 30,000
women, a total of 77,000, — besides about 40,000 in pubhc
institutions. The number of degrees conferred in course was
16,000 j of honorary degrees, 700. These institutions, how-
ever, are of every variety of size and resources: 22 so-called
"colleges" reported less than ten students each, and about
270 of them had less than a hundred each ; the largest institu-
tion had more students than the hundred smallest taken to-
gether. The Mountain Home College, for instance, had a
faculty of one man and two women, while the Columbia
teaching force was 350 men and no women; New Windsor,
Maryland, had a total income of $1,800, the University of
Chicago $1,600,000; the hbrary of Kansas City University
had 500 volumes and was worth $500, the library of Harvard
35
546 Education. [§ 235
University had 550,000 volumes and 430,000 pamphlets ; the
productive funds of Greenville and Tusculum College were
$2,205, *^f Leland Stanford Junior University, over $18,000,000.
In every state except California, institutions of learning have
partial or complete exemption from taxation, on the well-
grounded theory that they are performing a public service and
are often relieving the state of part of the expense of public
education. In Maine the state pays to the localities a sum
intended to reimburse them for the responsibility of protecting
college property.
A special form of endowment is the creation of large funds,
the income to be used, not for buildings, but for keeping up
schools in poor communities or among depressed races. George
Peabody, a London banker, born in Danvers, Massachusetts,
gave $3,500,000 as a fund for the education of negroes, and
the income has been spent chiefly in keeping up schools in the
South. The Slater fund of $1,000,000 has been used for the
same purpose. Some of the missionary societies maintain
schools and even colleges, especially among the negroes, poor
whites, and western frontiersmen. In 1901 Andrew Carnegie
created a fund of $10,000,000, to be used by a board of
trustees in furthering scientific investigation and research.
Some of the great scientific and historical societies offer prizes
for discoveries, or for good books, in their fields ; these funds,
properly managed, are flexible, and accomplish results not
easily reached by fixed institutions.
235. State Universities.
During the last quarter century, only two very large and
wealthy universities have been founded by private benefactors,
— the University of Chicago and Leland Stanford Junior
University ; while a dozen important centres of national edu-
cation have grown up under the care of the states. In the
Western and Northwestern states, the principle of public edu-
cation has advanced to the point that every young man and
§ 23s] State Universities. 547
woman who can pay the necessary expense of living shall be
furnished with university instruction free of tuition.
The finances of state universities depend upon state grants,
with some fees, for these institutions have little income from
tuitions or endowments. The earliest state universities, in
North Carolina and Virginia, have always depended upon
state taxation. In some of the states the agricultural land
grants of 1862 were turned over to private institutions : thus
Cornell got the New York grant. In other instances separate
agricultural colleges were established, as in North Carolina and
the state of Washington. In other states the proceeds of the
land grants were applied to the existing state universities : thus
the large and prosperous universities of Ohio, Indiana, Illinois,
Michigan, Wisconsin, Minnesota, Iowa, Missouri, Nebraska,
and California got the means to expand and to build up profes-
sional schools. Hardly any private institutions have such in-
comes : in 1900 the University of Michigan received ^300,000
from the state ; the University of Nebraska, $192,000 ; Ohio State
University, $167,000; the University of Wisconsin, $268,000.
A few states have set apart permanent tax funds for the sup-
port of the universities.
The state universities all have certain general characteristics.
They demand little or no tuition from the residents of the
states ; yet many of them have so many outside attendants that
comfortable sums are added to the incomes. Every one of the
great state universities, in both undergraduate departments and
professional schools, is open to women in the same manner
and on the same terms as to men. The state universities pay
great attention to the local industries : in the grazing states
there are dairy schools ; in the mineral states, mining schools ;
and in many states a large part of the high-school teachers are
graduates of the state universities. In some states, notably
Michigan, Wisconsin, Minnesota, Nebraska, and California, the
universities are in organic relation with the lower and higher
public schools, and have few or no rivals within the state limits.
548 Education. [§ 236
With the state universities should be classed the separate
state agricultural colleges and experiment stations. The United
States government appropriates $25,000 a year for each agri-
cultural college, and $15,000 for each experiment station (the
purpose of which is to study plants, seeds, and methods of
tillage suitable for the local conditions), — a total federal ex-
penditure of $1,875,000. The agricultural colleges are, how-
ever, not successful in attracting men who expect to be farmers ;
in most states they tend to become technical schools furnishing
a general scientific education.
Public education is one of the largest expense bills of Ameri-
can governments. The United States expends for this purpose
about $3,000,000 annually ; the states about $44,000,000 ;
the localities about $184,000,000. This total of $231,000,000
is about $15 per capita for the enrolled school children, or
$3.50 per capita of the population.
236. Religious and Moral Training of Youth.
One of the functions of the Christian church has always been
the education of the young, and in most European countries
rehgious instruction is a part of the public-school curriculum.
In Germany, for instance, the Catholic priest, the Protestant
pastor, and the Jewish rabbi come in turn into the school
buildings to instruct the children of their parishioners. Many
of the private schools and colleges in the United States give
special instruction in Bible study and morals.
When, about 1840, the states for the first time faced the
problem of a thorough public-school system, religious instruc-
tion was not included, because there were too many denomi-
nations in the community, and because it was thought contrary
to the principle of religious freedom for the state to inculcate
any religious doctrine. The Catholic church has always been
especially strong against the teaching of any form of Protestant
faith in the public schools ; and the Protestant denominations
have been equally firm against permitting the Catholic clergy to
§ 237] Public Libraries. 549
have any ofificial connection with the schools. The place has
been to a large degree filled by the Sunday School, in which
there were 11,000,000 scholars in 1901. Here each denomi-
nation is free to teach the children who come to it voluntarily ;
and in these schools children learn both the text and the moral
lessons of Scripture.
It is, nevertheless, very common throughout the United
States to begin the day's school exercises with the reading of a
few verses from the Bible and a few words of prayer. This
practice has given rise to many violent discussions. The Cath-
olic clergy usually take the ground that the reading of the
Protestant version of the Scriptures without comment is practi-
cally the teaching of Protestantism ; and in some cities the
school boards have forbidden this use of the Bible. The pro-
hibition does not make the schools more acceptable to either
the Catholics or the Lutherans.
The withdrawal of hundreds of thousands of children into
parochial schools is unfortunate because the pubhc school is
the greatest democratic influence in our country. It planes
down those differences of race and language which tend to
divide Americans ; for children are susceptible to ridicule and
try to learn the language and acquire the habits of native chil-
dren. It also makes the different social strata acquainted with
each other's needs and powers.
237. Public Libraries and Museums.
Public education does not stop with schools and colleges ;
one of the most encouraging things in America is the devel-
opment of libraries. Nearly every European government has
established a great national library, such as the British Museum.
For the new Library of Congress, the United States has pro-
vided a superb building in Washington, and spends about
$600,000 a year for increase, cataloguing, maintenance, and ad-
ministration. Most of the states have libraries in their capitol
buildings for the use of legislators and other public servants ;
and a few of them are serviceable to schools.
550 Education. [§ 237
The last forty years have seen a great development of civic
Hbraries, not only in the large cities, but in the smaller towns
and even in villages and country places. In many instances
the buildings have been the gifts of public-spirited individuals ;
but the books are usually bought, and the libraries adminis-
tered, from public taxation. The commissioner of education
enumerates 5,400 public, society, and school libraries, of which
4,000 have more than 1,000 volumes each. In the state of
Massachusetts every city, and every country town except
seven, has a free library. The city of Boston has spent about
^2,500,000 on library buildings, and the city of New York is
about to spend ^5,000,000 for a similar purpose. Cincinnati,
Providence, Buffalo, Chicago, Minneapolis, and many other
places have well-appointed buildings and increasing libraries.
The annual drawings of books in the San Francisco Public
Library are over 700,000.
The effect of the free libraries is not only to keep up reading
habits, but also to furnish a means of extending the work of
high schools. Many libraries publish annotated bibliographies
and finding-lists, intended to make easy the discovery of really
good books. In the large cities, branch libraries are estab-
lished ; and in' some of the states, particularly Wisconsin and
New York, public travelling libraries are sent from one country
town to another, furnishing a practical means of education.
The main difficulty with the library system is that too much
money commonly goes into buildings, while the book-buying
funds are almost always too small. A necessary part of library
expense is cataloguing ; and the Library of Congress now offers
to send printed transcripts of its own library cards wherever
desired, in order to save this duplication of energy.
Several of the large cities possess museums of art, most of
them founded by private gifts and carried on for the public
benefit by private trustees. In a few cases, however, — as the
Field Columbian Museum in Chicago, — the city is the owner
and maintains the plant ; and this system is likely to extend.
§238] Problems of Education. 551
The United States keeps up several museums in Washington.
Several cities, notably New York and Chicago, keep collections
of wild animals for the instruction and entertainment of the
people. In France and Germany, municipalities build and
subsidize theatres as a part of public instruction. No Ameri-
can city has ever undertaken this task, but free band-concerts
are common.
Free lecture courses have been established with great success
in New York City, and have proved a means of educating
those adults and children who have not the opportunity to
go to school. Night schools taught as a part of the public
schools have also helped to educate a busy class. Training
in decorative art is likely to be taken up as a branch of
commercial education.
238. Problems of Education.
American education is still in a formative stage, and the
public has happily become aware that our schools are not per-
fect, (i) The main defect is a clumsy system of school
administration, based on the mistaken idea that any intelligent
person can decide intricate questions of education. In many
small communities the schools progress because the intelligent
men and women of the place put their minds upon the subject ;
but as cities grow larger it becomes more and more difficult to
carry on the schools simply by the force of public interest.
The school boards are almost everywhere too large, too change-
able, and too much addicted to the pernicious method of
executive sub-committees. The building and the care of
schoolhouses are often put into the hands of still another city
authority, so that janitors of schoolhouses sometimes snap their
fingers at teachers, superintendents, and school boards.
(2) School boards go too far into technical details. The
particulars of school organization have to be worked out by
actual teachers and educational administrators, just as the
minutiae of railroad freight service must be settled by actual
552 Education. [§ 238
railroad men. From personal experience on a city school board,
the writer concludes that such a board ought to confine itself
to general questions, such as the introduction of new branches
of study, the creation of new types of schools, the enlarge-
ment of public kindergartens and manual-training schools, the
establishment of methods for ascertaining the fitness of teachers.
To experts should be committed such details as the arrange-
ment of courses, studies, the building of schoolhouses, school
furniture, text-books, and all the other paraphernalia of schools.
(3) The next necessity of the schools is trained teachers,
especially in the country schools. The American district-school
system has given opportunity for earning money to thousands
of worthy young men and women who were on their way to
other pursuits ; but this changing and rather haphazard teach-
ing has often been at the expense of the pupils. In every state
it ought to be a principle that no person shall be appointed to
a high-school position who has not a college education, or the
equivalent ; and that no person shall be appointed to the
grades who has not had a normal training, or the equivalent.
With this presumption of fitness, teachers ought to be ap-
pointed by superintendents or supervisors (the Cleveland system
of appointment without confirmation by the board works well)
for a time on probation ; and then, if their work is satisfactory,
they ought to have appointments during good behavior ; there
should then be an opportunity of promotion to the higher
grades for superior work, and a slow annual increase of salary
up to a maximum. Thus protected from removal for political
reasons, and conscious of an adequate training, the good teacher
has every incentive to do his best. As in other branches of the
civil service, however, a fixed tenure of office often leads to
indifierence ; and the best teacher will grow old : hence there
ought to be a system of retiring allowances, so that a faithful
teacher who has passed the point of efficiency may neither be
turned out to starve nor retained when a fresher and more
vigorous teacher might come in.
§238] Problems of Education. 553
In the American schools a large proportion of the teachers
are women, whereas in Germany and England the greater num-
ber are men. In many ways women make the better teachers,
because they are patient, conscientious, and have a high feeling
of responsibility. In many cities women are appointed to the
headships of schools on the same salaries as those allowed to
men for similar services. Women, however, are seldom made
principals of high schools, and are heads of only four of the
thirteen large separate women's colleges.
(4) The relation between the various strata of schools has
now become very important. The grades commonly lead
straight up to the high schools ; but outside the few states
which have an articulated system, — such as Wisconsin and
California, — there is a break between the secondary schools
and the colleges. The large colleges are each fed by more
than a hundred schools, and the same school is sometimes
preparing young people for a dozen different colleges. Two
different attempts are now making to get rid of this diffi-
culty. The first is by the widely-used certificate system, under
which the college examines the method of instruction in the
school ; and, if satisfied, admits graduates to the college on pro-
bation without examination. The other method is to bring the
colleges to agree on a common basis of entrance requirements,
so that the examination papers of a group of colleges shall all
be the same and shall be administered by a common board.
(5) Another necessity of education is a common under-
standing among teachers of every grade and specialty. This
important purpose is reached by associations of teachers
grouped geographically, or grouped by interest in a common
subject. Most influential is the National Educational Associa-
tion, which has about 10,000 members, and meets in an annual
convention lasting several days. From this Association have
proceeded several important investigations into the conditions
and needs of American education : it forms a kind of clearing-
house for the educators of the country.
554 Education. [§ 238
Upon the whole, the tendency of American schools of every
grade is toward constant improvement, especially in the selec-
tion and training of teachers. In few cities now can teachers
find employment who have not had either normal courses or
experience in other schools ; and in general they are a con-
scientious, hard-working, and underpaid body of public
servants.
CHAPTER XXIX.
RELIGION AND PUBLIC MORALS.
239. References.
Bibliography: Cyclop, of Am. Govt. (1914), I, 269; Channing,
Hart, and Turner, Guide (1912), §§ 149, 165, 200, 274; W. B. Munro,
BiU. of Municipal Govt. (1915), §§ zz, 34. 39-48, 53; A. B. Hart, Manual
(1908), §§ 97, 98; E. McClain, Constitutional Law (1910), § 206.
Religious Liberty: C. W. Eliot, Am. Contributions to Civilization
(1897), Nos. I, 2, 15; J. Bryce, Am. Commonwealth (ed. 1910), II, chs.
ex, cxi; E. McClain, Constitutional Law (1910), §§ 207-210; E. Freund,
Police Power (1904), ch. xxii; P. Schaff, Church and State (Am. Hist.
Assoc, Papers, II, 391-543, 1888); T. M. Cooley, Cotistitutional Limi-
tations (7th ed., 1903), ch. xiii; Cyclop, of Am. Govt. (1914), Art. on
Church and State in the U. S.
Religious Organization: A. B. Hart, National Ideals (1907),
ch. xi. The pubUcations of the various religious bodies; statistics
in the year-books of the denominations, and also in Bureau of the Cen-
sus, Special Report on Religious Bodies, 1906 (1910); histories of the
various denominations.
Morals and Progress: W. H. Wilson, Church of the Open Country
(1911); K. L. Butterfield, Chapters in Rural Progress (1908); Country
Life Commission, Report (1909); J. A. Riis, Battle with the Slums
(1902); Jane Addams, Twenty Years at Hull House (1910); J. G. Brooks,
Social Unrest (1903); F. G. Peabody, Approach to the Social Qtiestion
(1909); S. Nearing, Woman and Progress (19 12); R. L. Hartt, People
at Play (1909); Cyclop, of Am. Govt. (1914), Art. on Public Morals,
Care for; The Survey (1897-); Russell Sage Foundation, various
reports, surveys, and formal papers.
240. History of American Churches.
At the time of colonization, the three religious forces in Eng-
land were the Anglican Episcopal church, the Roman Catholic
church, and various bodies of separatists and non-conformists.
555
556 Religion and Public Morals. [§ 240
All these elements were represented in the colonies : Virginia
and the Carolinas established the Church of England ; in Mary,
land, Catholics were tolerated from the first ; the settlers at
Plymouth were outright separatists ; and the Massachusetts
people, at first Puritans in the Church of England, speedily
set up separatist churches, called Congregational. Another
separatist element was the Presbyterian (substantially the same
as the Dutch Calvinist), early introduced into the Middle and
Southern colonies. In New Jersey, Pennsylvania, and many
other colonies settled the Quakers, radical separatists ; and in
Rhode Island, the then very unpopular Anabaptists, commonly
known as Baptists. In Pennsylvania and elsewhere settled
German Protestants, especially Moravians ; and there were a
few Jewish synagogues in the colonies. In the eighteenth cen-
tury the Methodist church arose as another separatist body,
and under the preaching of Whitefield and Wesley it gained
ground in America.
Of these churches, the Episcopal was supported by public
taxation in Virginia and elsewhere, as was the Congregational
in Massachusetts and Connecticut. At the time of the Revolu-
tion the Southern church establishments were broken up by
state constitutions, and fifty years later they ceased in the New
England states. In 1789 the first Catholic bishop was desig-
nated, and in 1784 the first Episcopal bishop. About 1788 the
Methodists and Baptists formed national organizations ; and
in 1789 the Presbyterians organized a national " General
Assembly."
From these parent denominations have sprung many lateral
churches. Two were split from top to bottom : the Methodist
church divided on slavery in 1844, and has never reunited ;
the Presbyterian church separated into Old School and New
School in 1837 on doctrinal grounds, and both Old School and
New School split when secession came about in 186 1, making
for a time four national Presbyterian churches, which have
since reunited. On the other hand, many new elements
§241] Government and Churches. 557
have appeared, such as the Greek CathoUcs and the Christian
Scientists.
The result is that the census of 1890 enumerates seventy-five
denominations, grouped, in general, in many cases national, or-
ganizations. At present the tendency is for the great churches
to keep up friendly relations with each other, while holding to
their separate organizations. Each denomination tries to main
tain schools, colleges, newspapers, and pubhshing houses of its
own, and also to sustain separate home and foreign missions.
The only important church in America which is an organized
part of a mundane religious organization is the Catholic, the
higher clergy of which are appointed from Rome and participate
in the ecumenical council.
241. Government and Churches.
In the eyes of the federal government and of nearly all the
state, territorial, and local governments, the churches are simply
voluntary associations, on the same footing as social clubs. By
the First Amendment to the constitution, the United States is
prohibited from making any " law respecting an establishment
of religion or prohibiting the free exercise thereof;" which
means that the federal government cannot appropriate money
for the support of any church, or compel any person to worship
in any form. A later movement to secure a constitutional
amendment recognizing the existence of God has died out,
perhaps because people think that God is not dependent upon
a constitutional amendment for His existence.
The state governments are under no restriction against the
support of religion ; in fact, the constitutions of New Hampshire
and Massachusetts for many years expressly required the legis-
latures to pass laws compelling the towns to maintain Protestant
teachers of piety, religion, and morality ; and the legislature of
Georgia down to 183 1 made repeated grants of land to Baptist,
Methodist, and Presbyterian churches. Most state constitutions,
however, especially of the later period, absolutely prohibit the
S5^ Religion and Public Morals. [§241
support of state churches. Several states refuse to accept the
testimony of atheists, and some of them have made a belief in
God a nominal condition for the suffrage or for holding public
office.
The local governments are under the restrictions of the state
constitutions ; but in some cities large appropriations are made
to denominational charitable institutions, particularly to those of
the Catholic church, on the theory that the money thus given
saves the necessity of a like expenditure by public officials.
A widely-prevaihng method of assistance to religious bodies
is to relieve them from taxation upon their property. In many
states this is a constitutional reUef, and extends to all the
property of ecclesiastical corporations, including convents,
schools, and asylums, as vi^ell as to church buildings. For in-
stance, Trinity Church, Episcopal, in New York City, is the
owner of real estate worth millions of dollars, the rentals of which
are applied to charitable purposes free of tax. In a few states
— New Hampshire, for example — church property above a
certain value is taxable, so as to discourage the accumulation of
large holdings of real estate in dead-hand. The far-reaching
effect of tax exemption is seen when we consider that in 1890
the Methodist-Episcopal church alone had $114,000,000 worth
of real estate, the Episcopal church ^83,000,000, and the
religious bodies of the United States taken together about
1^700,000,000.
Wherever the United States has acquired territory, it has
allowed the preexisting churches to retain their property, but no
longer to receive support out of the treasury. The question was
not serious in Louisiana or Florida ; but it has been perplexing
in the Philippines, where religious worship has for centuries
been sustained by taxation, especially since the title to many of
the churches is vested in friars unpopular with the people. In
the territory of Utah, from 1850 to 1887, trouble arose be-
cause the local territorial government created a religious corpo-
ration which held for one of its religious tenets the practice of
§ 242] Religious Denominations. 559
polygamy. In 1887 Congress passed a statute dissolving the
Church of Jesus Christ of Latter Day Saints, distributing its
property for public education, and making the practice of
polygamy a crime ; and, when the state of Utah was admitted
in 1896, it was obliged to insert in its constitution an express
prohibition of polygamy.
Cases often arise in which the national or state courts must
take cognizance of religious doctrine. If a dispute comes up
within a religious body, and two parties claim each to be the
orthodox and legal church, the courts decide, not which party
has the proper religious belief, but which under the rules of its
own church is entitled to control the property. The split in the
Congregational churches of New England about 18 10 caused
many such suits between Unitarian and Orthodox congregations.
242. Religious Denominations.
An interesting field of inquiry is the relative strength of the
various denominations ; but a comparison is hard to make,
because the same terms do not mean the same thing every-
where. Thus, among the Catholics all persons, young and old,
above about fourteen years of age are counted church mem-
bers ; in the Methodist church some children are admitted to
membership ; the Unitarian church practically admits only
adults. According to the latest available statistics, those of
1902, the Catholic church has about 9,100,000 members, most
of whom are Irish, German, French, or Slav by birth or extrac-
tion. The seventeen kinds of Methodists include about 6,000,-
000 communicants. There are about 5,000,000 Baptists,
distributed in thirteen sects, including the Regular, " Six-
Principle," Seventh-Day, Freewill, Original Freewill, General,
Separated, United Church of Christ, Primitive, and "Old
Two-Seed-in-the-Spirit-Predestinarian" Baptists. Ten kinds
of Presbyterians number 2,000,000, including three Reformed
Churches and six Reformed Presbyterian. Nineteen bodies of
Lutherans count 1,600,000; Disciples of Christ, 1,100,000 j
560 Religion and Public Morals. [§242
Episcopalians, 700,000; Congregationalists, 600,000; Jews,
1,000,000 ; Christian Scientists, estimated at 1,000,000.
Among the smaller denominations or fractions of larger de-
nominations are the United Zion's Children (River Brethren),
of whom there are about 500 ; four different kinds of Plymouth
Brethren ; the Christadelphians, with sixty-three small churches ;
the Church of God (Winebrennerian) ; the Church Triumphant
(Schweinfurth) and the Church Triumphant (Koreschan
Ecclesia) ; the Adonai Shomo, a New England church of only
20 members in all; the Dunkards (four kinds, with over 100,-
000 members) ; four varieties of Friends or Quakers (the
Orthodox, Hicksite, Wilburite, and Primitive) ; four churches
of Friends of the Temple ; twelve varieties of Mennonites,
including the Amish, Old Amish, Defenceless, and Brethren
in Christ ; the Schwenkfeldians ; the Salvation Army, with
40,000 adherents ; and " The Holy Ghost and Us."
Arranged in the order of numbers, by far the most powerful
of all the rehgious bodies is the Methodist church and its
various ramifications, with 41,000 ministers, 55,000 church
buildings, and from 12,000,000 to 15,000,000 adherents; more
than two-thirds of all the Methodist sects are included in
the two Northern and Southern regular Methodist-Episcopal
churches. Next come the Baptists, with 36,000 ministers,
50,000 churches, and 10,000,000 to 12,000,000 adherents.
The third great group is the Catholic, with 12,000 clergy,
12,000 churches, and 9,000,000 to 10,000,000 adherents.
Next are the Presbyterians, with 14,000 ministers, 17,000
churches, and 4,000,000 to 5,000,000 adherents; next the
Lutherans, with 3,000,000 to 4,000,000 adherents ; next, and
about equal in numbers, are the Disciples, Episcopalians, and
Jews ; and next to them the Congregationalists, with 6,000
ministers, 6,000 churches, and 1,500,000 adherents; next,
probably, the Christian Scientists.
The organization of the churches differs widely. The Cath-
olic church has no national assemblies of either the clergy or
§243] Public Morals. 561
the laity, but a highly-centralized hierarchy leading up to the
ultimate spiritual authority of the pope as the vice-regent of
God and the head of the whole Catholic church. The Epis-
copal church has in each state a bishop or bishops, and in each
diocese a diocesan convention of bishops and lay representa-
tives ; the final authority is the national triennial convention ;
within each state the bishops are chosen by the diocesan
convention, and confirmed by the body of bishops. The
Presbyterian church has an elaborate system of conferences
and state synods, and a '•' General Assembly," w^hich has the
power to lay down a basis of doctrine for every church and
minister. In the Methodist church there are bishops, con-
ferences, and a general conference which elects bishops and is
the highest authority in the church. The Congregational and
Baptist churches have systems of local government, each church
calling its own ministers and laying down its doctripe ; but
there is also a system of general councils for conference and
the care of common affairs. The coming in of emigrants from
Eastern Europe has introduced many congregations of the
Greek Catholic church, which are subject to the metropolitan
(prelate) of Greece, of Constantinople, or of Russia.
In a few cases, several denominations use the same church ;
but commonly each wishes a separate building, and it is almost
impossible to keep up union churches. Hence in many small
villages, two, three, or half a dozen little churches may be
found, each with a little congregation and a poorly-paid
minister.
243. Public Morals.
The question of public morals was simple enough so long as
church and state were identical : what the church forbade was
commonly punishable by the civil authorities, or by penalties
of excommunication, which were even worse. In colonial days,
governments habitually followed up the good people with all
sorts of minute regulations : the early New England statutes
refer for authority to the books of Moses ; the cut of garments,
36
562 Religion and Public Morals. [§243
the character of entertainments, were subjects of petty enact-
ment ; failure to go to church was a misdemeanor punishable
by the county court.
Notwithstanding the disestablishment of the churches between
1775 and 1835, the state governments continued to pass laws
for the punishment of some acts contrary to ordinary religious
belief: for instance, many states still have obsolete statutes
against profane swearing and concerning the observance of the
Sabbath. Most states protect religious services from disturb-
ances caused by music or other loud sounds ; and the closing
of liquor saloons on Sunday is effectual in many New England
communities, and is attempted in other populous states. In
most states, places of business are expected to be closed on
Sunday, though even in the strictest ones exception is made of
drug stores, hotels, public restaurants, and of news-stands
during - a part of the day. Sunday amusements are nearly
everywhere prohibited ; but in some cities, in defiance of the
law, theatres are open on that day and athletic games are
carried on.
The protection of public morals also extends to the prohibi-
tion of gambhng of every kind, including lotteries. Playing for
money was the habitual amusement of polite society a century
ago, and it has always been common upon the frontiers and in
great cities. It is practically impossible for the law to reach
people who agree to gamble in private houses ; but the prohi-
bition can be made effective against all places of public resort,
and the business of gambling cannot flourish unless there is
tolerably free access for the public. Formerly the great summer
resorts were infested with gambling, but from most of them it
has been driven out. It flourishes, however, in the cities, where
the gamblers somehow manage to keep themselves from arrest.
In colonial times, the lottery was a frequent and respectable
means of raising money. It was used even for building churches
and college buildings ; and George Washington was a regular
purchaser of lottery tickets. Such lotteries, conducted in the
§243] Public Morals. 563
open, were as fair a form of gambling as could be devised ; but
of course, in order to leave anything for the promoters, the
losses must have been much more than the winnings. The
spirit of unrest and speculation resulting from lotteries was so
great, and the tendency against saving so strong, that lotteries
of every kind have been forbidden by every state in the Union,
and by Congress for the exclusive jurisdiction of the United
States. The people of Louisiana, in 1892, refused a bribe of
$1,250,000 a year rather than allow the system to go on. The
United States renders great service through its postal laws ; for
it refuses to transmit lottery mail even from foreign countries,
and its agents make every effort to discover lotteries which are
carrying on business surreptitiously.
The keeping of houses of prostitution is everywhere strictly
forbidden, and yet they exist in every considerable community.
Why is it so difificult to stamp out gambling-houses and other
illegal places ? One reason is the difficulty of getting evidence,
since those who frequent such places are the last to wish a
prosecution. Another is the rift which exists between the
upper and lower classes of society, so that one section of a city
knows little and cares less about what goes on in another
section. Another trouble in some unhappy cities is the ineffi-
ciency of the police force, which for various reasons fails to see
or to remedy conditions with which it is perfectly familiar.
CHAPTER XXX.
PUBLIC ORDER.
244. References.
Bibliography: A. B. Hart, Manual (1908), §§ 123, 124, 138, 228,
229, 299; H. S. Warner, Social Welfare and Liquor Problem (rev. ed.,
1913), ch. bibliographies; Channing, Hart, and Turner, Guide (1912),
§§ 200, 253, 256, 270, 274; C. D. Wright, Practical Sociology (1909),
§§ 186, 196, 203, 213.
Crime and Punishment: Cyclop, of Am. Govt. (1914), Arts, on
Charities and Correction, State Boards of; Charities, Associated;
Charities, PubUc Agencies for; Children, Dependent, Public Care of;
Criminology; Lighting, Electric; Lynching; Penalties for Crime;
Police in American Cities; Police Power; Poverty and Poor Relief;
Prison Discipline; Prison Industries; Prison Labor; Prisoners, Probation
of; Reformatories; E. McClain, Constitutional Law (1910), §§ 227-
262; A. Train, Prisoner at the Bar (1908); W. B. Munro, Municipal
Administration (1916), chs. vi-viii; C. A. Beard, Am. City Govt. (1912),
ch. vi.
Liquor Traffic: E. Freund, Police Power (1904), ch. viii; C. D.
Wright, Practical Sociology (1900), ch. xxiii; Cyclop, of Am. Govt. (1914),
Arts, on Liquor Legislation; Liquor Licenses; , H. S. Warner, Social
Welfare and Liquor Problem (rev. ed., 1913); Woollen and Thornton,
Intoxicating Liquors, the Law relating to the Traffic (1910); J. Koren,
Economic Aspects of the Liquor Problem (1899); ^- Calkins, Substitutes
for the Saloon (1901). — Sources: P. S. Reinsch, Readings on Am.
State Govt. (191 1), ch. vii.
Riots and Insurrections: J. E. Cutler, Lynch-Law (1905);
E. Freund, Police Poiver (1904), chs. vi, xiv; D. R. Dewey, National
Problems (1907), ch. xviii; Cyclop, of Am. Govt. (1914), Arts, on Insur-
rections, History of; Insurrections, Suppressions of; Order, Main-
tenance of; Am. Bar Assoc, Report, 1894, pp. 151-326. — Sources:
Federal Aid in Domestic Disturbances {Senate Documents, 57 Cong.,
2 sess.. No. 209, 1903); Industrial Commission, Reports (1900-1902),
IV, 7-14, 145-147; Strike Commission, Report on the Chicago Strike
(1894).
Health: W. B. Munro, Municipal Administration (1916), chs.
iv, v; H. Godfrey, Health of the City (1910); C. A. Beard, Am. City
Govt. (1912), chs. X, xi, xiii, xiv; Cyclop, of Am. Govt. (1914), Arts, on
City Planning; Health, Public, Regulation of; E. McQuillin, Mimicipal
Corporations, HI, ch. xxv; National Conference of Associated Charities
564
§ 245] Crimes and Punishment. 565
and Corrections, Proceedings (annual volume); E. Freund, Police
Power (1904), ch. v; C. D. Wright, Practical Sociology (1909), §§ 71, 80,
245. Crime and Punishment.
Just as the proper working of national, state, or local govern-
ment depends upon the faithfulness of the persons who hold
office, so the carrying out of the functions of government which
directly affect individuals depends upon the obedience and
good order of the citizens. When the laws are broken, what is
the remedy? The most obvious is the prosecution, conviction,
and punishment of the wrong-doer. In the United States the
three forms of legal punishment are fine, imprisonment, and
punishment of the body, (i) Fines are never large, a few
thousand dollars at the most ; they are commonly applied to
delinquent officers of corporations, or in small sums to petty
offenders.
(2) The most common punishment for the conviction of
crime is imprisonment ; but the humanitarian spirit of to-day
has made the prisons very different from what they were
seventy-five years ago — dirty, unwholesome, fever-stricken
dens, infested with vermin, a punishment even to enter them.
The modern theory of prison discipline is not only to put a
penalty on wrong-doing and to keep the wrong-doer out of the
way of mischief, but also to give him opportunity for reflection
and reformation. Hence convicts are often taught trades, and
employed in useful labor ; if they behave well in prison and
give no trouble to the officers, their sentences are shortened
by about one fourth ; they have proper food, and in most
cases dry and healthful cells. Even then, to a thinking man
it is a terrible punishment to be secluded from his friends, cut
off from movement, set apart among felons, and deprived of
years of fruition.
(3) Corporal penalties have not entirely passed out of Ameri-
can jurisprudence. Whipping is a legal form of punishment in
some reformatories and prisons in Delaware, inflicted chiefly
566 Public Order. [§ 246
for petty crimes ; and the worst Southern prison systems are
very like the badly-managed plantations in slavery time. The
death penalty has been abolished in five states of the Union,
but is inflicted in all the others, and also under United States
law. In some states an electric shock is substituted for the
old-time hanging. Notwithstanding a strong movement to do
away with the death penalty altogether, it is retained in many
of the old communities from the belief that it is a restraint on
murder ; yet many juries acquit prisoners of murder because
they do not like to be connected with putting fellow-men to
death. On the other hand, in states which passively permit
lynching, the abolition of the death penalty would give an ex-
cuse, now lacking, for the shocking torture and barbarism of
unlawful executions by excited men.
246. Charities and Corrections.
Upon the various forms of American government falls the
responsibility of providing for the weaker members of society.
In colonial times, it was practically recognized that the com-
munity was bound to keep all its citizens from starvation, and
that the local governments were to provide for their own poor.
The growth of civilization, almost unrestricted immigration, the
rise of great cities, have multiplied the poor ; and at the same
time a growing humanitarian spirit has added to the sense of
public responsibility. Throughout the United States, therefore,
almost every class of dependent and helpless persons is looked
after by the state.
First come the poor, who are cared for in one or all of three
different ways: (i) in-door relief, which means a distribution
of supplies, and sometimes of money, at the houses of the poor ;
(2) out-door relief, in which the applicants for aid present
themselves at the office of an official appointed for that pur-
pose ; (3) the poor-house, or alms-house, for those who cannot
possibly keep up homes of their own.
All these methods have their disadvantages : in-door relief
§246] Charities and Corrections. 567
creates habits of pauperism ; the poor-house is almost always joy-
less, and sometimes cruel. The whole problem is much compli-
cated by the large number of charitable societies and individuals,
some of whom give indiscriminately and some have regular pen-
sioners : cases are not unknown in which a pauper family draws
an annual stipend from each of three or four different organiza-
tions, and lives in comfort. The most effective means of dealing
with the problem of poverty is the Associated Charities, an organ-
ization existing in most cities for the purpose of registering and
■examining all applications for aid, so as to deter the worthless
and to prevent duplication of effort for the worthy ; and, further?
to help families to become self-sustaining.
By degrees the state has taken upon itself the problem of
the defective classes. First, the insane, who until about 1830
were habitually treated with a disregard of humanity which
almost surpasses belief. It was the work of one woman, Doro-
thea Dix, to arouse public sentiment in the United States on
this subject, by insisting that public hospitals be estabhshed for
the cure of the curable and the custody of the incurable, who
in many cases are still relegated to county poor-houses. The
state of New York has recently assumed the care of all the
insane within its borders, a step which ought to be taken in
every state. This humane reform includes the right to public
supervision of all private insane asylums ; and the manner of
commitment of persons supposed to be insane is carefully
regulated by statute.
The blind, the deaf and dumb, and the idiots have also been
made state wards by most of the states, so that they receive
education, and sometimes support, at pubHc expense. The
ground for this care is, first, to lessen the suffering and depriva-
tion of such persons ; and, secondly, to enable them to render
such services to the community as their conditions allow.
Among the last to engage the attention of the public has been
the most helpless class of all, the little children. The care of
orphans has for many years ordinarily been assumed by private
568 Public Order. [§ 246
liharitable institutions, which have taken little children and
sometimes kept them twenty years. Institution hfe is unfavor-
able to moral development, and institution children are often
helpless when they get out into the world. To meet this need,
has been devised the method of gathering up friendless children
in order that they may be distributed among childless families.
The child-saving work is conjoined with other movements for
the prevention of crime at its fountain-head, by caring for boys
and girls who lack home influences and home restraints, so as
to prevent the building-up of the lawless, hoodlum type, which
is so dangerous in cities. Until within a few years the boy
charged with a petty crime was likely to be sent to jail, where
he fell in with hardened criminals. Now, in a few states chil-
dren are brought before juvenile courts held, if possible, away
from the regular court-houses ; and, if they have not parents
who are fit to take care of them, they are sent to some institution,
or turned over to a Children's Aid Society, which will try to find
them homes.
A part of the same uplifting idea, now adopted in several
states, is the reform of the prison system by indeterminate sen-
tences, under which a man who is imprisoned for the first time
and who behaves well is released after a short detention and
given an opportunity to reform. If he falls back into evil
courses, he may be re-arrested under the original sentence with-
out a second trial ; but, if he goes on well, when the maximum
term has expired he is a free and a saved man.
The various public correctional and charitable institutions in
a single state may be as many as twenty in number, besides
county institutions. The ordinary type of single institution
government is an executive board, commonly of people living
in the neighborhood of the institution. This method lacks
proper state supervision ; and therefore, in about half the states
of the Union, boards of correction and charity have been ap-
pointed, some with executive power, some with the right to
visit, report, and require uniform accounts. The state chari-
§ 247] Liquor Traffic. 569
table and correctional officials have a lively " National Confer-
ence of Charities and Corrections," which meets annually and
publishes an elaborate report.
The extent of public charity of every kind is to some degree
measured by the expense. In 1890 the total amount spent by
the forty-four state governments for the defective, criminal, and
poor vi^as about $21,400,000 ; the local expenditures were about
$30,400,000. In prosperous Massachusetts, 11,300 of the
population received public aid in some form.
247. Hegulation of the Liquor TraflBc.
The increasing use of alcoholic liquors causes uneasiness to
most civilized governments, and is almost everywhere subject
to some restrictions. How do American governments regulate
the traffic? The English and Colonial method was to lay a
revenue duty on the importation and manufacture of fermented
and distilled liquors ; and to regulate inns and drinking-houses,
simply with a view to public order. Until about 1830 the use
of liquor was treated by the United States like the use of
tobacco, — as a convenient subject for tax because so many
people liked it. Then arose the Washingtonian Societies, the
first " temperance " organizations, which urged moderation in
drinking. Soon after came societies for total abstinence.
Various ways of deahng with the question have been tried,
(i) In 185 1 the opposition to the use of liquors reached such
a point that Maine evolved a drastic method of regulation, —
namely, the absolute prohibition by law of the manufacture, sale,
or use of any form of malt or spirituous liquors within the com-
monwealth. The movement has spread widely through the
Union : Maine, Kansas, and North Dakota have constitutional
prohibition ; Rhode Island and South Dakota have once had
but later abandoned such a provision.
(2) In several states the sale was prohibited by statute, as in
New Hampshire from 1855 to 1903, Iowa from 1884 to 1894,
Massachusetts from 1869 to 1875, and Vermont from 1852 to
^jo Public Order. [§ 247
1903. In most of the prohibition states, however, breweries
and distilleries exist and are steadily at work, and hquor is
openly sold in every city ; for it is almost impossible to get
evidence against a liquor-seller without employing a "spotter,"
who shall purchase and himself taste the beverage so as to
swear to its character ; and in many places juries will not
convict on that evidence, or on any other. Then, too, some
means must be provided for the sale of liquor for medicinal
purposes, and this leads to underhand sale by druggists. Upon
the whole, the prohibitory laws do not in the long run prevent
the sale of liquor, although they set upon it the stamp of public
disapprobation and put it in the power of any community so
disposed to relieve itself of the business.
(3) Another method of dealing with the liquor traffic is
simply to let it alone, except for the small federal tax. In a
few slates the liquor business is treated like any other pursuit,
except that there are laws against selling liquor to known
drunkards, to minors, or to persons already intoxicated.
(4) Local option means that any town or city which so votes
shall be entitled to the machinery of local and state government
to prevent the sale of liquor. Under such an arrangement, a
thirsty man may seek satisfaction in some near-by town which
permits the sale ; but the system greatly lessens the amount of
liquor sold, increases savings, and keeps growing children and
youth from a first-hand acquaintance with the saloon.
(5) License, which in the United States tends toward high
license, has two merits, — that those who pay for license are in-
terested to prevent kitchen bar-rooms ; and that as licenses grow
more expensive the number of drinking-places decreases. It
is also very productive : in the state of New York the license
fees amount to ^13,000,000 a year. The objection most com-
monly brought is that license makes the state a partner in a
demoralizing traffic, and helps to make the business of liquor-
selling respectable.
(6) Another method, which was tried in some of the Western
§248] Public Health. 571
states with no success, was to make the saloon-keeper, or even
the owner of the building, responsible for loss of wages and
neglect of family on the part of a man who drew his supplies
from the saloon. It was found difficult to establish the owner-
ship of the property and to get conviction on any evidence.
(7) Another unusual hquor law is the South Carolina state-
account system described above. The system is a modification
of the Norwegian, or Gothenburg, system, by which the num-
ber of drinking-places is greatly reduced, and the business is
managed by the most public-spirited men in the community,
who try to sell as little as possible.
Of all these systems, that which results in the greatest peace
and quiet within the state is the local-option system combined
with high license. The conditions of the whole problem do not
readily appear upon the surface. In the large cities most of the
saloons are owned by the great breweries, which furnish the capi-
tal, pay for licenses, and defend suits. The prosecution of a
liquor case is a difficult and thankless task, for evidence is hard
to get, is discredited in advance, appeals are numerous, and
juries difficult to convince. Any attempt seriously to diminish
the amount of liquor manufactured and sold is resisted by power-
ful vested interests, and at the same time is hampered by the fact
that in few communities do the majority of the voters really feel
a moral reprobation for the purchaser of liquor.
248. Public Health.
For the protection of the public, the sanitary conditions of
the country must be regulated by law. During the last hundred
years the human race has come to realize that dirt and foul air
are two of the most destructive disease promoters. Cleanli-
ness of person, clothing, and house is the ordinary condition
of civilization (even Homer observed that young men always
wanted clean linen when they went to a dance) ; and the abun-
dant supply of water in most American cities greatly contributes
to cleanliness, and hence to health. Where filth is persistent,
572 Public Order. [§ 248
the local authorities under state laws have the right to close up
houses and other buildings, and even to condemn them and
tear them down.
A force always working against public cleanliness is the soft-
coal smoke which defaces nearly all Western cities, and adds
millions of dollars a year to the cost of living, by the unneces-
sary fouling or destruction of clothing, fabrics, and buildings.
An influence more dangerous to health is the foul and disease-
breeding dust from unpaved or poorly-paved streets, especially
in the poorer quarters.
All our largest cities except three have public sewers, by
which refuse is easily and immediately carried away to a
distance from crowded population. New Orleans has still some
private sewers, for the use of which the people are charged.
The combination of abundant water and sufficient sewerage
has reduced the death rate of modern cities by about one
half, and has correspondingly raised the productive capacity
of the country.
The power of the state to deal with disease extends to recog-
nized means of prevention : thus, many states have laws com-
pelling people to be vaccinated ; houses in which contagious
diseases exist are marked with flags ; the inmates may be quar-
antined in their own houses ; and the sick and the suspected
may be carried by pubhc authority to hospitals. The power
over health and safety to life extends to laws for regulating
buildings. In most cities, a specified area of every lot devoted
to tenement-houses must be reserved for light and air, and all
buildings must have proper sanitary drainage.
The federal government in its general regulation of interstate
and foreign commerce may take precautions to prevent the
spread of disease. It created a short-lived " National Board of
Health " in 1879 ; but now this authority is exerted primarily
by the states, which in each port provide a health officer and
assistants, who examine vessels. Under the laws of the United
States, immigrants afflicted with contagious diseases are to be
§ 249] Fire Protection and Light. 573
returned to the countries from which they came ; even con-
sumption has been held to be a disease which would warrant
sending the sick person back.
The people of the states take their own precautions against
contagion from other states. In repeated instances, people
flying to escape yellow fever and like diseases have been
stopped by armed mobs and compelled to return or to stay in
refugee camps. The fortunate discovery that yellow fever is
communicated, not by personal contact, but by mosquitoes, will
probably end this insensate and irregular method. Hospitals,
built and supported in whole or in part by the national govern-
ment or by state or local governments, are to be found every-
where in the United States, and thousands of poor people
receive treatment free of charge. Some cities have also free
district physicians and dispensaries.
249. Fire Protection and Light.
A public service of great cost and much importance is the
protection from fire. From the earliest colonial days, wooden
houses and villages have been subject to fires, and the only
means of fighting them was to pass buckets from hand to hand.
About the time of the Revolution, in the larger places hand
fire-engines, which were nothing but pumps on wheels, were
provided ; a little later sprang up organized volunteer fire com-
panies, the members of which ran to their engine-houses on an
alarm and dragged out their engines. These companies were
very disorderly, much involved in politics, and not infrequently
stopped fighting the fire in order to fight each other. Fire-
insurance companies, which sprang up about the time of the
Revolution, divided, but did not diminish, the loss. About
i860 began the construction of powerful steam fire-engines,
which required skilled men and proper housing ; and slowly
there grew up a system of paid firemen, on duty in their
engine-houses day and night. The introduction of the fire-
alarm telegraph about 1870 simplified the giving of notice;
574 Public Order. [§ 249
and now the routine is so perfected that within sixty seconds
after the tap of the bell a powerful steam fire-engine, well
manned, will dart out of an engine-house and start straight for
the spot where the alarm was given.
In the great cities the system includes hose trucks, chemical
engines, protection wagons (often supported by the insurance
companies), and monster ladders and life-saving apparatus.
The departments are arranged on a semi-military basis, with
chiefs and sub-chiefs and a permanent force. The men are
highly paid : the firemen in New York receive on an average
the same salaries as the men teachers in the city. New York
in 1902 spent ^5,200,000 on its fire department, or ^1.50 per
head of the population.
The duty of fighting fire involves the right to prevent it :
building laws prohibit the construction of wooden structures
within fire limits ; and there are strict laws for the construc-
tion of stairways, fire-escapes, and approaches to frequented
buildings. The annual loss by fire in the United States is about
$150,000,000. In the opinion of experts, proper building laws,
which would little increase the cost of construction, would save
seven eighths of this loss.
Somewhat akin to fire protection is public lighting ; it is more
than a convenience, for it makes possible safe circulation at
night. Many cities permit gas and electric companies to lay
their mains through the streets, and to supply both private con-
sumers and the cities themselves ; in many other cities the
municipality owns the gas or electric-light works, and serves
private consumers. In 1899 about 300 cities, including Detroit
and Chicago, had municipal electric plants, and 12 cities had
public gas works. The private companies have special privi-
leges of using the streets, and furnish light to the city govern-
ments ; hence they are subject to restrictions and investigations
not usual in other corporations.
§ 250] Police Force. ^7 ^
250. The Police Force.
For the serving of legal processes, the arrest of criminals, the
maintenance of order, and the execution of many laws, a force
of public servants clothed with the authority of government is
necessary. This function rests wholly upon the states, which
have delegated the greater part of it to the local governments.
Most foreign countries have a system of centralized rural police,
or gendarmerie ; but no state in the Union has ever organized
such a force, except that sometimes there is a special police to
detect illegal sales of liquor.
The rural peace officer in America is commonly the constable,
elected by popular vote and wholly inadequate for any emer-
gency. In case of riot or of great public danger, men are often
sworn in as special constables, a commission which gives them
authority to make arrests and to resist attacks on persons or
property. Some of the detective agencies undertake, in case
of strikes, to furnish bodies of armed men sworn in as con-
stables, and maintained at the expense of the owners of the
property. This is very close to private war, and ought to be
made unnecessary by proper state organization.
The colonial and later towns had paid watchmen, the germs
of our modern police ; and it was a favorite occupation of the
gilded youth " to box the watch " — that is, to thrash the guardians
of the peace. In 1857 was organized for New York City the
first so-called " metropolitan " police, that is, a body of men
with military organization, well paid, and steadily on duty ;
and all other cities and many smaller places have adopted this
system. The police force of Greater New York numbers 7,700
men, and costs ^11,300,000 annually. The police patrol the
city by night and day, and have summary powers of arrest of
criminals in the act, and even of suspicious characters ; they
very often, without warrants, arrest people for criminal acts
which they have not seen, a practice which is strictly illegal.
They also serve criminal processes, act for the health depart-
5/6
Public Order. [§ 251
ment, sometimes take a census, and are the antennae of the city
government.
The poUce stations are headquarters for the force and for the
police courts ; they include prisons, which are simply branches
of the state prison system, and often lodging-houses for the
homeless poor. All these responsibilities give the police an
authority which is usually exercised for the good of the com-
munity, but which has many times been shown to be capable
of abuse.
251. Riots and Insurrections.
The continuance of government and of civilization depends
upon the ability and the purpose of public officials to compel
the observance of the laws, and to quell all irregular and violent
attempts to secure even proper ends. The foundation of crimi-
nal law is the conception that the state, and not the person
injured, is to take in hand the punishment of the culprit; the
foundation of civil law is the conception that there is a pre-
existing organization of impartial tribunals acting under legal
principles, by which disputes may be settled without the use of
force ; the foundation of constitutional law is the practice of
bringing about changes in government by methods prescribed
in the form of government itself, — by peaceful discussion and
by voting for candidates who will favor desired legislation.
The experience of mankind shows that in most highly-
civihzed communities there is a latent substratum of savage
instincts, and that a considerable fraction of the population can
be driven by prejudice or mere excitement to lawless destruc-
tion of lives and property. A great danger to society begins
when men associate themselves, not simply to commit crimes,
but to oppose lawful government. Such resistance may take
any one of several different forms : (i) a mere mob, formed
without preconcert, and anxious only for the sport of wrecking
buildings and maiming and killing obnoxious people ; (2) a riot,
which is a more determined stand against the authority of the
§ 251] Riots and Insurrections. 577
public ; (3) an insurrection, intended to prostrate the authority
of the existing government ; (4) a rebeUion, which is a deter-
mined effort to overthrow the existing government and to sub-
stitute something else. The gradations from one to another of
these forms of violence are impossible to trace : the riot to-day
may be an insurrection to-morrow, and may turn into a rebellion
the next day.
Such disorders were very common in England, which ex-
perienced two organized and successful rebellions, in 1643 ^^^
1688. Every colony was accustomed to riots or insurrec-
tions, the most notable being the Bacon Rebellion in Virginia
in 1676, the Leisler RebeUion in New York in 1690, the New
Jersey Quitrent Riots about 1745, the Stamp Act Riots of 1765,
the Regulator Riots in North Carolina in 177 1, and the Boston
Tea-Party in 1773.
The Revolution itself was full of riots, and its main purpose
was through rebellion forcibly to destroy the existing govern-
ment, so as to erect a better structure by a free people. As
soon as state governments were established, they began to
suffer from disorder: the Shays RebeUion of 1787 came near
uprooting the government of Massachusetts. The most per-
sistent effort to overthrow a state government thereafter was the
so-called " Dorr RebeUion "in Rhode Island in 1843. Many
riots and interferences with state governments grew out of the
slavery contest, notably the Garrison Riot of 1836 and the John
Brown Raid of 1859. Since the Civil War there have been
fearful riots in Pittsburg (1877), in Cincinnati (1884), and
in Chicago (1894), in all of which large amounts of private
property were destroyed and many lives lost.
The ordinary method of preserving order is through the
courts. A person believed to be guUty of riotous and disorderly
action is subject to arrest on an ordinary court warrant, served
by the sheriff or his deputy as agent of the court. In case of
resistance to such arrest, the sheriff may swear in a large
number of additional deputies, all of whom have authority
37
^j\i Public Order. [§ 252
either to serve warrants or, like the ordinary policemen, to
arrest persons whom they themselves see committing riotous
acts. In case the deputies are not sufficient, the sheriff has the •
power of calling the />osse comitatus, or power of the county ;
that is, he may summon all the able-bodied men within the
jurisdiction* of his court to assist him. The , /(^j-Xi? is a clumsy
and undisciplined body, and in practice is used only to compel
bystan\iers to take part with law and order.
A consequence of riots, and especially of insurrectionary acts,
may be a prosecution for treason. A few cases of treason
against a state have been tried, the most notable being that of
John Brown, who in 1859 was executed on a charge of murder
and of treason against Virginia. Treason against the United
States is a perfectly well-recognized crime, defined in the consti-
tution as " levying war " against the United States, or " adhering
to their enemies, giving them aid and comfort." Nearly all the
violent outbreaks against the United States have been followed
by treason trials : men were convicted and sentenced to death
for their share in the so-called "Whiskey" Rebellion in 1794
and the Fries Rebellion in 1799 ; Aaron Burr was unsuccessfully
tried for treason in 1807 ; a man named Hoxie was tried in
1808 ; and there were several treason trials during the war of
181 2. During the Civil War there were some cases ; and one
man, Dr. Milligan, was convicted of treason by a military com-
mission and condemned to death. After the war the trial of
Jefferson Davis for treason was allowed to break down on a
technicality. All the men convicted in 1794 and 1799 were
pardoned by the president, and Milligan's conviction was held
by the Supreme Court to be invalid ; so that in the whole
history of the United States no person has ever suffered death
as a traitor to the United States.
252. Suppression of Disorder.
The administrative function of keeping order is divided be-
tween the national and state governments, with some authority
§252] Suppression of Disorder. 579
in the local governments. The mayor of a city is usually held
responsible for the protection of lives and property through the
police ; the county sheriff acts through his deputies ; the gov-
ernor of a state controls the militia ; the president of the United
States may call on the militia of any state, and also on the
army and navy of the United States.
Warrants and prosecutions for acts already committed are
entirely useless against a sudden riot or insurrection. When it
is evident that the ordinary machinery of the courts is unavail-
ing, it is usual for the mayor or the county sheriff to notify the
governor and to ask for troops, — that is, for the state militia.
Those who belong to the organization are legally compelled to
turn out on the governor's call, either to fight the mob or to
guard persons and property. Often the militia is unwilling to fire
on its own townspeople ; but sometimes regular street fights
take place, and there have been cases in which the militia has
been on duty for several weeks or months.
Where the militia is insufficient, under the constitution of the
United States the state legislature or governor has a right to
call for federal aid. In such cases the president may call out
the militia of neighboring states ; but the best dependence is
the regular army, which has no personal affiliations with mobs
and can be depended upon to obey orders exactly. In one
of these three ways — by the officers of the courts, by militia
under state authority, or by troops sent by the federal govern-
ment on the call of a state — disorders directed against state
governments can be speedily quelled.
Whenever the execution of the federal constitution or of a
federal statute or a federal service (like the mails) is opposed,
the direct power of the federal government may be invoked.
The president may intervene on his own responsibility wher-
ever, as is usually the case in railroad strikes, the carriage of
the mails is interrupted, or wherever the prime object of the
movement is to paralyze the execution of federal law. Many
instances of such resistance have occurred. In 1 794, in the
580 Public Order. [§252
Whiskey Rebellion, a large part of the population of South-
western Pennsylvania rose to prevent the collection of the excise
on distilled liquor ; they assaulted federal officials, plundered
the mail, and killed one man. The president called ont 15,000
militia, who put down the rebellion without firing a gun. In
1799, in the Fries Rebellion in Eastern Pennsylvania, oppo-
sition to the collection of a federal tax went to the length of
a rising, which was easily suppressed. In 1806 Aaron Burr
organized a desperate expedition against New Orleans. In
1808 there was violent resistance to the embargo, especially
in Vermont. In 1856 the Mormons in Utah resisted the fed-
eral government till a considerable military force was sent out.
The Civil War was by far the most determined of all resist-
ance to the United States : eleven states and parts of several
others threw off their allegiance to the United States, and for
four years carried on an armed contest. During the war, in
1863, there was a terrible draft riot in New York City, in which
1,000 people were either killed or wounded ; and it was only
put down by using the army. Since the war there has been
very little opposition to the authority of the federal govern-
ment, except the insurrection in the Philippines following the
transfer of those islands by Spain, in 1899.
Among the interesting questions which have arisen in the
process of enforcing order is whether United States troops
may be called upon to act as a posse comitatiis. The ordinary
purpose of the posse is to protect legal officers in arresting
persons previously charged with crime : the ordinary purpose
of the army is to break up armed resistance by assailing any
person who is a part of the insurrection, wherever found. Al-
though after the Civil War, under authority of Congress, troops
were frequently used as a posse, it is an unusual expedient,
which creates as many difficulties as it settles.
Another question is whether troops may be called out with-
out the request of a governor. This was practically settled by
Washington in 1 794, when he summoned militia to put down
§253] Defence of Society. 581
the Whiskey Rebellion, acting against Governor Mifflin's pro-
test. In 1 86 1 President Lincoln used the same power; and
in 1894 President Cleveland called out troops to put down the
Chicago strikes without the desire of the governor of Illinois.
In 1 795 an act was passed authorizing the president to use his
discretion in such cases; and in 1807, under the pressure of
the Burr insurrection, the president was authorized to use federal
troops and naval forces for the suppression of disorder.
253. TTltimate Defence of Society.
The most orderly governments are not by any means the freest.
In all history, the ruin of republican government has been the
good order maintained by a despot through troops which
would obey him ; and some of the American cities in which
there is most quiet and least public protest are among the
worst governed, because the people have not the spirit to
demand honesty and pubhc service.
The ordinary protections for civil government are three,
(i) The ordinary guardians of the peace. The police in the
cities, though not a perfect body of men, have a semi-military
discipline, and can almost always be relied upon to stand
against the mob which contemns their authority. In the open
country the constables are not well organized ; hence the large
numbers of train robberies and Hke crimes, most of which
could be prevented by a proper state police.
(2) The militia. Of late years in many large cities immense
armories have been constructed, which are intended to be
citadels and points of departure in case of civic disturbance.
(3) The regular army and navy, which, as the most highly-
disciplined, is the most effective ; and it can be used in states
where governors fail to do their duty.
Behind all these arrays of men, the real defence of popular
government is the determination of Americans that they will
have honest and efficient public service. The way to have it is,
first of all, to vote for it persistently : there are few communities
582 Public Order. [§253
which cannot secure any kind of government which a major-
ity of voters in two or three successive elections insist upon.
If voters are apathetic, or if there is fraud in counting the
votes (a frequent and dangerous method of defeating the
public will), a determined public protest by men of known char-
acter and force in the community has a terrifying effect on bad
government.
Occasionally, of late years, good men have adopted the mob
method of securing their ends. A notable case was the ap-
pearance in the session of the .Chicago city council of a body
of armed men, who threatened to shoot any councilman who
voted for an obnoxious street-car franchise. This is simply
playing into the hand of the worst element ; for it is a method
that can be applied equally by the bad citizen to the good
councilman.
Yet, for the protection of his legal rights through a free gov-
ernment, the American must be ready to fight if necessary, • —
not simply to join the army in case of war, but to come out as
a special policeman or deputy or as a militiaman, when riots
are threatening. The wild-beast element in society is kept
down only by the conviction that in the last resort the forces
of organized society will fight harder and fight longer. The
motto of every American is, and must be, the same as the
motto of Massachusetts : Ense petit placidam sub libertate quie-
iem^ " With the sword under freedom, seek peace and quiet."
The two most important lessons for Americans are these : to
keep the peace by obedience to law and quiet participation in
making a good government ; and to use proper means under
the law, forcible if necessary, to protect the governrhent from
violence and to compel public servants to do their duty.
INDEX.
INDEX.
A DAMS, JOHN, as president, 259.
Adams, J. Q., as president, 260.
Adjutant-general, state, 143.
Agreement of the People, 57.
Agriculture, Department, 278, 279 ;
question of tenant farming, 324 ;
increasing size of farms, 326, 327 ;
colleges, 471, 538, 548 ; state regu-
lations, 500 ; federal aid, 500.
Alabama, negro disfianchisement, 69.
Alaska, annexation, 344, 345 ; govern-
ment, 370.
Aliens, number and naturalization, 9,
10, 17 ; distribution, 10; privileges,
15, 16; claim of native country
over naturalized, 18; obligations, 19;
in cities, 204, 205. See also Immi-
gration.
Amendment of constitutions, prepara-
tion, 59-61 ; ratification, 61-63 ! o^
bills in Congress, 251, 252.
American Educational Association, in-
fluence, 553.
Annexation, citizenship through, 18 ;
history, 343-345! methods, 345.346
Appointments. See Civil service.
Appropriations. See Expenditures.
Area, national, 5 ; history, 343-345.
Afmy, obligation of military service,
20; civil head, 462; officers, 462-
464 ; pay, 464 ; strength, 464 ; en-
listment, 464 ; peace duties, 464 ;
government, 464, 465 ; administra-
tion and general staff, 465, 466, 477 ;
intelligence department, 466; mili-
tary academy, 469, 470; military
training at agricultural colleges, 471 ;
War College, 471 ; needs, 471, 472,
V 477 ; fear of a standing, 472 ; strength
during wars, 474 ; methods of raising
to war footing, 474-476 ; cost, 477 ;
use in suppressing disorders, 579-
581.^ See also Militia, Navy. War.
Arthur, C. A., as president, 261.
Articles of Confederation, 49, 50, 57, .
Assemble, right to, 28.
Associated Charities, 567.
Attainder, forbidden, 124.
Attorney-general, state, 143 ; federal,
27S.
Auditor, state, 143.
Australasia, trade writh, 455.
Australian ballot, 74-76, 84, 85, 104.
See also Elections.
gAKER ISLAND, claimed, 345.
Ballots. See Elections.
Banks, first, 483 ; functions, 487 ;
national, 488, 489 ; practical associa-
tion, 489 ; savings, 489 : trust com-
panies, 489 ; state regulation, 500,
Borough government, i6g, 170.
Boss, political, 100-103, 1°^) '°^ i
and the legislature, 134-136. See
also Politics.
Boston, rapid transit, 529, 533.
Boundaries, shifting local, 7 ; national,
346-348 ; adjustment of internal,
348-351- _
Bribery, political, 105, 106 ; legislative,
135 ; in cities, 190, 212, 530 ; in
Congress, 247.
Bridges, federal regulation, 516, 517.
Buchanan, James, as president, 260.
Budgets, municipal, 192, 413, 414 ;
system, 410; federal substitute, 410-
412 ; state, 412, 413 ; lack of respon-
sible control, 428.
Buildings, public, municipal, 329 ;
state, 330-332;^ federal, 332, 334;
criminal jurisdiction over federal,
within states, 357, 358. See also
Land.
Business. See Commercial organiza-
tion, Industries.
585
586
Index.
(CABINET, federal, character, 279,
2S0; and the president, 2S0-2S2.
California, admission, 117; annexation,
344-346; tax on colleges, 392; state
text-books, 542.
Canada, trade with, 454, 458.
Canals, federal land grants, 339; era
of, 512; abandoned, 513, 519; federal,
around rapids, 517; state construc-
tion, 518, 519.
Capital, character of state, 331; na-
tional, 333-335.
Capitol, state, 331; national, 334.
Carnegie, Andrew, fund for research,
546.
Caucus, political, purpose, 92 ; com-
position and official regulation, 92,
93 ; defects, 93 ; influence in Con-
gress, 246. See also Politics.
Central America, trade with, 454-458.
Charities and Correction, poor, 203,
204, 566, 567; public responsibility,
566; insane, 567; deaf and dumb,
567 ; orphans, 567, 568 ; juvenile
criminals, 568; administration, 568;
national conference, 569 ; cost, 569.
See also Punishment.
Charters, special city, forbidden, 124,
137; character of city, 1S4-186; rail-
road, 522.
Chase, S. P., on the Union, 123; as
chief justice, 298.
Chicago, area, 7; elevated railroad,
529; desire for public ownership of
traction lines, 534.
Children's Aid Society, 568.
China, protectorate, 375 ; trade with,
455-
Chinese, naturalization and suffrage
denied to, 17, 70; exclusion, 443,
452, 453-
Cincinnati, railroad built by, 410.
Circuit courts, 303; of appeals, 303.
See also Judiciary (federal).
Cities, rapid growth, 8, 210; rank, 9;
history, 1S1-183 ; development of
interest in government, 183 ; char-
ters and functions, 183-1S6, 211;
state control, 186-188, 211 ; councils,
1SS-192; control of finances, 192;
mayor, 192-194; departments, 194-
196; officials, 196, 197; civil service
reform, 198-199; problem of popu-
lation and its distribution, 201-205,
210, 211; population of great, 202;
transportation problem, 205-207, 211,
528-530, 532-534; political condi-
tions, 208-210; defects, 210-212;
reforms, 212-214; f^^l estate, 328,
329; budgets, 413, 414; debt, 421-
423; municipal ownership, 428, 504,
532-534; public health, 570, 571;
fire protection, 573, 574; lighting,
574; police, 575, 576. See also
Local government.
Citizenship, conditions, 15 ; state and
national, 16 ; acquirement and loss,
16-19; privileges and obligations,
19-21; and fr&edom, 21 ; interstate
privileges, 121.
Civil law. See Judiciary.
Civil service, subordinate state officers,
i46j 147 ; spoils system in states,
148; state reform, 148-150; munici-
pal, 193, 194, 196, 197; municipal
reform, 198, 199, 213 ; number of
national employees, 277 ; presidential
appointments and removals, 270-
273, 2S1-285 ; normal term of presi-
dential appointments, 2S3 ; minor
national appointments, 285, 286 ;
national spoils system and its effects,
286-28S ; ineffectual attempts at re-
form, 288-290 ; reform organization
under the Commission, 290-292 ; ex-
aminations, 292 ; practical difficulties
of reform, 292, 293 ; appointment of
laborers, 293 ; status of fourth-class
postmasters, 293, 294 ; efficiency of
reform, 294 ; in dependencies, 380.
See also Executive.
Civil War, cause of failure, 6 ; effect on
doctrine of state rights, 1 23 ; magni-
tude, 461, 5S0.
Clay, Henry, as speaker, 217, 232.
Cleveland, Grover, as president, 261.
Climate, 5.
Coal land, sale of public, 338.
Colonies, English, in America, liberty
in, 22, 23; government, 41-43; Eng-
lish control, 43, 44; suffrage, 44, 66,
67; local government, 44, 45, 174, iSi,
Index,
S^7
1S3; criminal law, 45; separation
of powers, 59; political parties, 87;
tenure of office, 14S; land-liolding,
322, 335; boundaries, 34S, 349;
tariff, 594; wars, 460; militia, 472;
business man, 482; paper money,
487, 493; money, 497; post-office,
508; roads, 511; education, 536,
537; churches, 555, 556; regulation
of morals, 561, 562. Seealso Depend-
encies, Territories.
Colorado, woman suffrage, yo.
Commerce, foreign, control, 447 ; im-
ports and exports, countries and ar-
ticles, 453-455 ; settlement of the
balance, 455 ; future development,
455; and the tariff, 455, 456 ; change
in methods, 456 , resulting develop-
ment of great ports, 457 ; commercial
neighbors, 457, 458. See also Immi-
gration, Shipping.
Commerce, internal. Department, 27S,
279; practical freedom from taxation
of interstate, 390 ; federal and state
regulation, 506-508; transmission of
intelligence, 508-511. See a/ji? Trans-
portation, and next titles above and
below.
Commercial organization, state regu-
lation, 55, 125, 500, 501 ; business
man, 482 ; partnership, 4S3 ; corpo-
rations, 483-485 ; trusts, 4S5, 4S6 ;
syndicates, 4S6 ; banks, 4S7-4S9;
transfer of title to property, 489 ;
exchanges and speculation, 490, 491 ;
stocks and bonds, 491 ; contracts,
493-495 ; weights and measures, 495,
496; coinage and currency, 496-499:
indirect federal regulation, 499 ; regu-
lation of labor, 501-503. See also
Industries, and next two titles above.
Committees, of state legislatures, 131,
133, 134; congressional, appoint-
ment, 232-234; sessions, 234, 235;
purpose and working of system, 235,
236 ; on rules, 242 ; steering, 242,
243 ; system compared with parHa-
mentary, 243, 244 ; conference, 253,
254.
Common law, use by state courts, 155 ;
use by federal courts, 309.
Comptroller, state, 143.
Conflict of laws, 121.
Congress, history, 51, 216-218; the
Houses compared, 217, 220, 221 ;
sessions, 226, 227; salary, 227, 228;
mileage, 228 ; franks, 229 ; immuni-
ties, 229 ; duties of members, 229 ;
pairs, 229 ; quorum, 229, 230, 241,
242; expulsion, 230; unwritten
duties of members, 230, 231 ; officers,
231; committee system, 233-236;
public and private sittings, 237, 238 ;
report of debates, 238 ; accommoda-
tion for members and spectators,
239 ; rules, 239-242 ; party manage-
ment, 242, 243 ; and Parliament, 243,
244 ; preparation and introduction of
measures, 244 ; influences on legisla-
tion, 245-247, 257 ; debate, 248-
251 ; amendment of bills, 251, 252;
voting, 252, 253; process of bills,
253, 254 ; veto, 254-256 ; output of
legislation, 256; private bills, 257;
counting of the electoral vote, 263 ;
and the president, 273, 274; and the
Cabinet, 280 ; and the appointing
power, 285 ; annexation by joint
resolution, 346 ; relation of treaties
and statutes, 443, 444. See also
House of Representatives, Senate,
and under the functions Commerce,
Expenditures, Taxation, etc.
Connecticut, educational suffrage qualifi-
cation,69 ; election of legislators, 128.
Constitution, federal, guarantees of
liberty, 23, 24, 30, 31 ; amendment
of, a sovereign act, 38 ; genesis, 48-
51; not a creation, 50; supremacy,
58, 63, 122 ; interpretation, 63, 64,
315-319 ; method and attempts at
amendment, 59, 61, 62. See also^
next title.
Constitutions, state, bill of rights, 23,
46, 48 ; early, 45-48 ; elements, 56-
59 ; tendency toward elaborateness,
58, 59; framing and preparation of
amendments, 59, 60 ; ratification, 60-
63, 78 ; principles of expounding, 64 ;
power to interpret, 64, 163-166, 316 ;
restrictions on legislation, 124. See
also next title above.
588
Index.
Consuls, appointment and grades, 436,
437 ; salaries and qualifications, 437 ;
reform, 437, 438; status and func-
tions, 438, 439.
Contempt of court, punishment for,
308. 309-
Continental Congress, 49, 50, 216.
Contracts, doctrine of obligation of,
317, 493 ; colonial and Revolutionary
impairment, 493, 494 ; prohibition
of state impairment, 494, 495 : federal
impairment, 495 ; prohibited con-
tracts, 495 ; enforcement of labor,
502.
Conventions, constitutional, 50, 59-61;
nominating, local and state, 93-95 ;
national, 96-98.
Convicts, hired out, 24; labor, 502.
Copyright system, 492, 493 ; interna-
tional, 493 ; trade marks, 493.
Corporations, state and federal char-
ters, 125, 484 ; landholding, 325,
326 ; taxation, 3S7, 388 ; taxation of
franchises, 388 ; beginnings, 4S3,
484 ; principles of incorporation,
4S4, 485 ; obligations, 485 ; amalga-
mation, 485; trusts, 485, 4S6 ; com-
mon and preferred stock, .jgi.
Correction. See Charities.
Councils, state, 141, 143; city, and the
executive power, 181, 192; organi-
zation and functions, 189-192, 212,
213 ; importance, 190, See also
Cabinet.
County government, size and popula-
tion of counties, 174; types, 174,
175 ; compared with town govern-
ment, 175, 176 ; option, 176 ; limita-
tions, 179 ; in cities, 195 ; real estate,
331 ; county seat, 331 ; expendi-
tures, 418 ; debt, 421, 422. See also
Local government, Township-county
system.
County-precinct system, 176.
Court of Claims, 304.
Court of Private Land Claims, 304.
Courts. See Judiciary.
Criminal law, state control, 55. See
also Judiciary, Punishment.
Cuba, protectorate, 374, 375.
D^
lANISH WEST INDIES, at-
tempted annexation, 344.
Debate, in state legislatures, 132; re-
port of congressional, 238 ; in the
Senate, 248 ; in the House,- 248, 249;
character of congressional, 249, 250 ;
obstructions and filibustering, 250,
251; previous question, 251.
Debt, federal borrowing for current
expenses, 412 ; purpose of state and
municipal, 412, 413; history and re-
pudiation of state, 419, 420; out-
standing state, 420,; limitation on
state, 421; municipal, 421-423;
county, 421; school district, 422;
history oi funded federal, 423-425 ;
federal paper notes, 424, 425 ; rate
of interest on federal, 425, 426 ; forms
of federal, 426, 427 ; danger and bur-
den, 429.
Delaware, amendment of constitution,
60 ; educational qualification for suf-
frage, 69; no veto power, 136.
Democracy, limitations, 38. See also
Popular government.
Dependencies, personal rights in, 19,
31, ■^2, 372; government of organ-
ized, 367, 368 ; military occupation,
369; authority over ceded, pending
organization, 369 ; precedents and
theories of status, 369-372 ; and ter-
ritories, 373 ; problems, 378-380.
See also Territories.
Diplomacy. See Foreign intercourse.
District courts, federal, 303. See also
Judiciary (federal).
District of Columbia, government and
control, 124, 356; origin, 355. See
also Washington.
Districts, 170. ,
Division of powers. See State govern-
ment.
Docks, ownership, 328, 329.
pAST FLORIDA, annexation, 344,
345-
Education, political, ii, 12; and suf-
frage, 69; state control, 126, 541,
542 ; state superintendent, 143 ; ap-
pointment of teachers, 146, 147, 552;
school districts, 169 ; unit of man-
Index.
589
agement, 179 ; control in cities, 191,
192 ; school lands, 339 ; school dis-
trict debts, 422 ; military and naval,
469-471 ; beginnings, 536 ; pre-Rev-
olutionary colleges, 537 ; establish-
ment of endowed schools, 537 ; early
curricula, 537 ; first state colleges
and professional schools, 537; devel-
opment of public schools, 537, 538,
541 ; development since the Civil
War, 538, 539; first women's col-
lege, 538; co-education, 539, 547;
present private, federal, state and
local provisions, 539,540, 548; ques-
tion of compulsory, 540; private and
endowed schools, 540, 541 ; denomi-
national schools, 541, 549; require-
ment of English language, 541 ;
district schools, 542, 552 ; graded
schools in town* and cities, 543;
night and vacation schools, 543 ; at-
tendance, 543; high schools, 543,
544; organization of universities,
544 ; types of their administration,
544, 545 ; technical, 545 ; statistics of
higher, 545, 546 ; exemption from
taxation, 546 ; special funds, 546 ;
growth of state universities, 546,
^47 ; their finances, 547 ; their char-
acteristics, 547; relation of schools
and colleges, 547, 553; agricultural
colleges and experiment stations,
548 ; cost, 548 ; religion and the
public schools, 548, 549; Sunday
Schools, 549; libraries and museums,
549-551 ; free lecture courses, 551 ;
reform in administration, 551, 552;
need of trained teachers, 552 ; tenure
and retiring allowance for teachers,
552 ; female teachers, 553 ; teachers'
associations^ 553 ; upward tendency,
554-
Education, National Bureau of, 539.
Elections, residence of candidates, 12,
72, 73, 128, 223; obligation of par-
ticipation, 21, 581, 582; districts,
71, 72; precincts, 72; registration,
73, 84; methods of voting, 73-75 ;
time, 75; frauds, 75, 76; count-
ing of the votes, 76, 85 ; minority
representation, 76, "j"]-^ proportional
representation, "jt, plurality, -j-]^ -jZ-^
majority, 78; popular legislation,
78-Si; extent of participation in,
82-85 ; defects and reforms, 84,
85 ; expense account of candidates,
85; infiruencing voters, 104-106; to
legislatures, 128; of governor, 141;
of state executive officers, 144 ; of
state judges, 152, 153 ; of mayor, 192 ;
of city officials, 194 ; of senators, 218,
219; of representatives, 221, 222; of
president and vice-president, 261-264.
See also Politics, Suffrage.
Electoral commission of 1877,263, 264.
Electric railroads, as rivals to steam
roads, 513, 531, 532; introduction,
528; development of country lines,
530, 531 ; state regulation, 532. See
also Street railroads.
Eleventh Amendment, 312.
Eminent domain, power and use, 125,
327-
England, history of liberty, 21, 22;
sovereignty in, 38 ; growth of pop-
ular government, 39-41 ; local gov-
ernment, 41, 174; imity of powers,
53, 243, 244; constitution, 56; writ-
ten constitutions, 57; history of suf-
frage, 66 ; growth of political parties,
87; treaties with, 440; trade with,
454; weights and measures, 496.
Equality in American society, 11.
Equity, principle, 158.
Erie Canal, 512, 518, 519.
Ethnology, Bureau of, 279.
Exchanges, stock and produce, 490;
speculation, 490, 491.
Excise. See Internal revenue.
Executive, colonial, 43 ; division of
state, 140 ; governor and his duties,
140-142; former state councils, 141;
lieutenant-governor, 142, 143; lack
of unity of control in state, 143 ; state
departments and officials, 143, 144;
state boards, 145, 146 ; classes of du-
ties of state, 147, 148 ; judicial control
over officials, 161-163, 311, 312; ju-
dicial control over executive acts,
165, 166; town, 171, 172; city, igi-v
197; national departments, 277-279,
286; separate bureaus and commis>-
59
o
Index.
sions, 279; Cabinet, 279-2S2; federal
administrative tribunals, 304; terri-
torial, 365. See also Civil service,
President, and the functions by
name.
Expenditures, lack of responsible con-
trol of appropriations, 236, 418, 419,
428 ; influence of " log-rolling," 246 ;
legislative control, 414, 415 ; classes
of federal, 415 ; purposes of federal,
415,416; federal administration, 416,
417; state system, 417, 418; pur-
poses of state, 417; municipal sys-
. tem, 41S; other local, 418; reform,
428, 429.
Export duties forbidden, 124.
Ex post facto laws forbidden, 124.
Extradition, interstate, 120, 121.
pEDERAL GOVERNMENT, ef-
fect of physical conditions, 6 ;
priority of obligation to, 20, 21. See
also Constitution (federal). Popular
government, State government, and
the departments and functions by
name.
Fees, revenue from, 417.
Fifteenth Amendment, 31, 62,
Filibustering in Congress, 250, 251.
Fillmore, Millard, as president, 260.
Finance, state powers, 125; local
powers, 173, 177. See also Budgets,
Expenditures, Debt, Revenue, Tax-
ation.
Fire protection, city department, 195,
197; development, 573, 574; mu-
nicipal system, 574; building laws,
574; annual loss by fire, 574.
Fish Commission, 279.
Florida. See East Florida, West
Florida.
Foreign intercourse, federal control, 55;
protectorates, 373-376 ; Monroe Doc-
trine, 376-378; history of American
policy, 433 ; adjustment, 433 ; home
officials, 433, 434; representatives
abroad, 434-436 ; consuls, 436-439 ;
treaties, 439-444 ; America as a world
power, 444, 445. See also Commerce
(foreign), War.
Foreigners. See Aliens.
Forest land, sale of public, 338. See
also Parks.
Forts, criminal jurisdiction over, 357,
358-
Fourteenth Amendment, 23, 30, 31,
62.
France, sovereignty in, 38 ; in Mexico,
IIT, trade with, 454.
Franchises, taxation of value, 388.
Freedom. See Liberty.
Fugitives, return, 120.
QADSDEN PURCHASE, 344, 345.
Gambling, stock and produce
speculation, 490, 491; attempted
prohibition, 500, 501, 562, 563.
Garfield, J. A., as president, 261.
General welfare, state and local respon-
sibility, 126, 5^6.
Germany, and th« Monroe Doctrine,
37S; trade with, 454.
Gerrymander, 71-73, 222.
Gladstone, W. E., mistake on the fed-
eral constitution, 50.
Gores, 170.
Government Printing Office, 279, 503.
Governor, state, veto, 136, 137; elec-
tion, 141; term and reelection, 141;
dignity, 141 ; salary, 141 ; political
duties, 141, 142; administrative
duties, 142; social duties, 142; ad-
visory council, 143; relation toother
executive officers, 143, 144, 146; ter-
ritorial, 365. See also Executive.
Granger movement, 524,
Grant, U. S., as president, 261.
Great Lakes, commerce, 517.
Guam, annexation, 345.
"LJABEAS CORPUS, writ, 26, 161;
suspension, 27; in federal courts,
307-
Harbors. See Waterways.
Harrison, Benjamin, as president, 261.
Harrison, W. H., as president, 260.
Hawaii, annexation, 344, 346; popula-
tion and government, 367; protec-
torate, 374,
Hayes, R. B., as president, 261.
Health, local control, 55; city depart-
ment, 195 ; public sanitary regula-
Index.
59
tions, 571-573 ; federal regulations,
572.
Heeler, political, 99. See also Politics.
Heimathlosen, 18.
Homestead Act, 339.
Hospitals, public, 573.
House of Representatives, residence of
representatives, 12, 223; districts and
apportionment, 71, 72, 221, 222;
size, 222 ; qualification of members,
223 ; electors, 223, 224 ; elections,
224, 225 ; character of members, 225 ;
length of service in, 225 ; speaker,
231-233; rules, 241, 242; Committee
on Rules, 242 ; limited debate, 248,
251; election of president by, 264;
and the treaty-making power, 473.
See also Congress.
TDAHO, suffrage denied to polyga-
mists, 69; woman suffrage, 70.
Illinois, city civil service reform, 198.
Immigration, exclusion of Chinese,
443, 452, 453 ; protection of immi-
grants, 450; number and character,
451; attempted restrictions, 451,
452; health inspection, 572, 573.
Impeachment, of state officials, 130,
153, 154; of federal judges, 300;
roots, 304; national process and in-
stances, 305, 306; penalty and object,
3°7-
Indian Territory, government and status
of tribes, 360, 362, 363.
Indians, question of citizenship, 17, 18;
personal rights of tribal, 31 ; right
to the soil, 358, 359; federal control
and policy, 359, 361-364; reserva-
tion system, 359-361; classes, 361-
363; statistics, 363; wars, 460, 461.
Indictment, use in criminal jurispru-
dence, 156.
Industries, annual production, 482; fed-
eral and state regulations, 500, 501 ;
attitude of government toward pri-
vate, 503, 506; national, 503; state
and municipal, 504. See also Com-
mercial organization.
Initiative, popular, So, 81.
Injunction, writ, i6t; use by federal
courts, 308, 309.
Instrument of Government, 57.
Insular cases, 371-373.
Insurrections. See Law and order.
Intelligence, transmission of. See Post-
office, Telegraph, Telephone.
Interior Department, 278, 279.
Internal improvements, history, 519,
520. See also Waterways.
Internal revenue, on liquors and tobacco,
401-403; stamp tax and other duties,
403 ; licenses,404. Seealso Taxation,
Interstate Commerce Act, 507, 508, 524,
525.
Iowa, former prohibition, 569.
Isthmus of Panama, protectorate, 375,
376; and the Monroe Doctrine, 377,
378; canal, 409.
JACKSON, ANDREW, as presi-
J dent, 260; and the bank, 48S.
Japan, trade with, 455.
Jefferson, Thomas, parli?mentary rules,
240; as president, 259, 260.
Johnson, Andrew, as president, 260,
261; impeachment, 305, 306.
Judiciary', federal, history, 51, 296-298 ;
number of judges, 298 ; appointment
and term, 298, 299; qualifications
and character, 299, 301 ; salary and
retiring allowance, 299, 300 ; creation
of vacancies, 300; dignity of the
office, 300; Supreme Court, 301,
302; application of opinions, 302,
306 ; personnel of the inferior courts,
302, 303 ; district courts, 303 ; cir-
cuit courts, circuit courts of appeals,
303; special courts, 303, 304; ad-
ministrative tribunals, 304, 525 ;
process of impeachment, 304-306 ;
appointive power of judges, 306 ;
writs, 307, 308 ; punishment for con-
tempt of court, 308, 309 ; jurisdiction
as to law, 309, 310; jurisdiction as
to parties, 310-312; the nation as a
party, 311 ; state as party, 312-314 ;
appeals, 314, 315 ; control over state
statutes and constitutions, 315-317;
control over federal statutes, 318,
^19 ; courts of the District of Colum-
bia, 356 ; territorial courts, 365. See
also next title.
592
Index.
Judiciary, state, trial by jury, 22, 23,
29, 30, 32, 156, 159, 160; habeas cor-
pus, 26, 27, 161 ; right to fair proceed-
ings, 29, 30 ; colonial, 43 ; colonial
criminal law, 45 ; duty of expounding
the constitution, 64 ; interstate credit,
120 ; extradition, 120, 121 ; impeach-
ment, 130, 153, 154; importance,
151,152,166; the bar, 152; designa-
tion of judges, 152, 153; their term,
pay, and removal, 153, 154; courts
and appeal, 154, 155; statutory and
common law, 155 ; criminal law pro-
cess, 155-157; punishments, 157;
civil law and jurisprudence, 158-161 ;
equity, 158 ; requirement of an actual
case for decision, 158; precedence,
158; field of civil cases, 159; method
of civil trial, 159, 160; writs, 161;
control over executive officials, 161-
163; control over statutes and execu-
tive acts, 163-166 ; judge-made law,
165 ; appeal to federal courts, 315 ; ju-
risdiction over acts committed on fed-
eral sites within states, 357,358; foun-
dation of civil and criminal law, 576.
Jurisdiction, 354 ; diverse and concur-
rent national and state, 354, 355,
357, 358. See also State government.
Jury trial, right to, 22, 23, 29, 30, 32 ;
use in criminal law, 156 ; use in civil
law, 159, 160 ; in federal courts, 303.
Justices of the peace, 155.
I^ANSAS, prohibition, 569.
Kentucky, constitutional anach-
ronism on slavery, 122 ; county
option, 176.
T ABOR, convict, 24, 502; regula-
tion by legislation, 501 ; employ-
ment of women and children, 501 ;
hours, 501, 502; boards of arbitra-
tion, 502 ; strikes and enforcement
of contracts, 502 ; tendency of judicial
decisions and legislation, 502, 503.
Lakes. See Waterways.
Land and landholding, private, the
normal condition, 322; extent of
ownership, 322; conveyance, 322,
323; as security, 323; number of
private holdings, 324 ; large estates,
324 ; value, 324 ; social value, 325 ;
corporate, 325, 326; alien and non-
residential, 326 ; tendency toward
large holdings, 327 ; eminent domain,
327 ; municipal, 328, 329 ; state, 329-
332; county, 331 ; improved national,
332-335 ; national reservations, 332,
333; public and private ownership
contrasted, 353, 408; jurisdiction
over private, 354; jurisdiction over
national sites within states, 357,
358; taxation, 384; assessment, 390.
See also Public lands.
Law and order, basis of civilization,
576; forms of associated violence,
576, 577; instances of associated vio-
lence, 577; ordinary method of pre-
serving, 577, 578, 581; treason, 578;
division of administration, 578, 579;
use of militia, 579, 581; federal aid,
579; direct federal suppression of
disorders, 579-581; ultimate defence
of society, 581, 582.
Laws, conflict, 121; codification, 138;
attempt at interstate agreement, 139;
Revised Statutes^ 256. See also Con-
gress, Judiciary, Legislature.
Legislation, popular, 78-81. See also
Congress, Laws, Legislature.
Legislature, colonial, 43; residuary
powers of state, 127, 128; choice and
conditions of membership, 128, 129;
organization, 129-131 ; meetings,
131; process of legislation, 131, 132;
initiative of legislation, 133; influ-
ences on, 133-136; governor's veto,
136, 137; public and private bills,
137; output of legislation, 137, 138;
necessity of new legislation, 138;
interstate harmony of legislation,
139; judicial control of legislation,
163-165, 316, 317; town, 173; county,
i75i "^ni 178; state, control of city
charters, 184-1S6 ; city, 188-192, 212,
213; territorial, 366. See also Con-
gress, and the functions by name.
Liberia, protectorate, 374.
Liberty, history of Anglo-Saxon, 21-
23 ; personal freedom and exceptions,
23-26 ; freedom of movement, 25 ;
Index.
593
habeas corpus, 26, 27, 161, 307; right
of personal opinion and its expres-
sion, 27-29; right to justice, 29, 30;
right of dependents and colonists, 31,
32, 372 ; political rights, 32 ; social
rights, 32, 33 ; personal rights and
sovereignty, ^7 ; right of revolution,
37 ; guarantee, 124 ; ordinary and ulti-
mate means of preserving, 581, 582.
Libraries, public, national and state,
549; local, 550; educational value,
550 ; travelling, 550.
Library Hall Association, no, iii.
Lieutenant-governor, functions and suc-
cession to governorship, 142, 143.
" Light money," 38S.
Lighting, public, 574.
Lincoln, Abraham, on the Union, 114;
as president, 260.
Liquor traffic, local option, 79, 570;
state monopoly in South Carolina,
504, 571 ; regulation of interstate,
507 ; simple regulation and taxation,
569, 570; attempted prohibition, 569,
570; high license, 570; attempt to
make dealers responsible, 570, 571;
problem, 571.
Lobby, influence, 247.
Local government, in England in
seventeenth century, 41 ; colonial,
44, 45 ; scope of powers, 55 ; and the
initiative and referendum, 79-81 ; and
national politics, 107-109; non-par-
tisan political organization, no, in;
state control, 13S, 168, 179; creation
and functions, 168 ; varieties of rural,
1 58; lack of separation of powers in
rural, 168; school districts, 169;
villages and boroughs, 169, 170;
mixed systems, 176-178; improve-
ments in rural, 178, 179; responsible
for general welfare, 536. See also
Cities, County government. Town
government.
"Log-rolling," 135, 246,
Lotteries, 500, 562, 563.
Louisiana, constitution put in force
without ratification, 61 ; parishes,
175; annexation, 343, 345 ; territorial
government, 370.
Lynch law, 157.
jyjACHINE, political, and the boss,
98-103. See also Politics.
McKinley, William, as president, 261.
Madison, James, as president, 260.
Maine, educational suffrage qualifica-
tion, 69; prohibition, 569.
Mann, Horace, on defects in public
schools, 537, 538.
Manufacturing. See Industries.
Marshall, John, as chief justice, 297.
Massachusetts, educational suffrage
qualification, 69; advisory executive
council, 143 ; civil service reform,
148-150, 198; state roads, 417, 515;
beginnings of education, 536; re-
quirement as to high schools, 542;
former prohibition, 569.
Mayor, veto on municipal acts of state
legislature, 186; election, 192; duties
and responsibility, 192, 194, 199, 212;
veto, 189. See also Cities.
Mexico, protectorate, 375 ; trade with,
457-
Michigan, probable division, 116.
Midway Island, claimed, 345.
Militia, theoretical and actual organiza-
tion, 472; use, 472, 473, 579; naval,
473; defects in active service, 473-
475- 477-
Mineral land, sale of public, 328.
Mining. See Industries.
Minnesota, direct nominations, 109;
township option, 178.
Minority, protection, 37, 39; represen-
tation, 76, ';'].
Mississippi, negro disfranchisement, 69
Mississippi River and its tributaries,
internal improvements on, 517, 518.
Money, states forbidden to coin, 124
deposition of pubhc, 408, 409; legal
tender notes, 424, 425, 427, 495, 498
interest-bearing treasury notes, 427,
498 ; state bank paper, 487 ; tax on
state bank paper, 488 ; national bank
notes, 489 ; colonial circulation, 496,
497 ; Revolutionary circulation, 497 ;
congressional control, 497 ; federal
coins, 497 ; struggle over double
standard, 498, 499 ; silver certificates,
498 ; silver treasury notes, 499.
Monroe, James, as president, 260.
38
594
Index.
Monroe Doctrine, origin, 376 ; applica-
tions, 376-37S.
Morals, public regulation, 55, 561, 562;
attempted prohibition of gambling
and prostitution, 562, 563.
Mormons. See Utah.
Mortmain, 326.
Museums, public, 550, 551.
ISTATIONAL BOARD OF
•^ HEALTH, 572.
National Conference of Charities and
Corrections, 569.
National Museum, 279.
Naturalization, control and process, 17;
exceptions, 17; effect on claim of
native country, 18.
Navy, Department, 278, 279 ; civil
head, 462 ; retirement of officers,
463; history, 466, 467; organization
and pay, 467, 46S ; strength, 468 ;
ships, 468 ; administration, 46S ; com-
bined training in engineering and nav-
igation, 468, 469 ; peace duties, 469 ;
naval academy, 470, 471; War College,
471 ; naval militia, 473; present needs,
477; cost, 477. See also War.
Nebraska, referendum, 80.
Negroes, population and distribution,
10, 11; personal rights, 25, 31-33;
suffrage, 69, 83 ; special educational
funds, 546.
Nevada as a state, 350.
New England Confederation, 48.
New Hampshire, election of legislators,
128; former prohibition, 569.
New Mexico, annexation, 344-346.
New Orleans, private sewers, 572.
New York, civil service reform, 148-
150, 198; village government, 169;
tax on value of franchises, 388; state
control of education, 542.
New York City, rapid transit, 529, 533,
534; free lecture courses, 551.
Nobility, titles of, forbidden, 124.
Nominations. See Politics.
Non-partisan boards, 145.
North Carolina, no veto power, 136;
appointed county officers, 174; early
state university, 537.
North Dakota, prohibition, 569.
QFFICERS. See Civil service. Ex-
ecutive.
Ohio, no veto power, 80 ; tax inquisi-
tion, 392.
Olney, Richard, application of the
Monroe Doctrine, T,yS,.
Order. See Law and order.
Ordinance of 1784, 364.
Ordinance of 1787, provisions, 23, 364,
365-
Oregon, popular initiative, 80; annexa-
tion, 343-345 ; boundary controversy,
347.
pARDON, governor's power, 142;
president's power, 270.
Parks and forests, municipal, 328; state,
3291 3301 504; national, 332, 333.
Parliament, development, 39-41; sys-
tem compared with congressional,
243> 244.
Partnership, 483.
Patents system, 492.
Peabody, George, fund for negro edu-
cation, 546.
Pennsylvania, borough government,
169; Ripper Bill, 185, 186; budget,
413-
Pensions, private bills, 257, 479; laws
and amount, 477-478; difficulties of
the system, 479, 480.
Personal property, taxation, 385-387;
assessment, 390-392 ; public, 409,
410.
Petition, right, 28.
Petroleum land, sale of public, 338.
Philippine Islands, slavery, 24; personal
rights, 32, 2,72] annexation, 344-346 ;
government, 367, 368, 372; advan-
tage of possession, 379, 455 ; question
of religious property, 558.
Physical conditions and resources, 5,
6 ; effect on political development, 6.
Pierce, Franklin, as president, 260.
Pilots, control, 449.
Plantations, 170.
Platform, political, state, 95 ; national,
97-
Police, municipal, 187, 188, 195, 197,
575, 576; state and local function.
575; rural, 575; private, 575.
Index.
595
Police power and obligation of con-
tracts, 317.
Political subdivisions, various, 5, 7.
Politics, education, 11, 12; history of
American parties, 86-8g; party or-
ganization and control over voters,
89, go, 100; independents, 90; com-
position and duties of party com-
mittee, 90, 91 ; necessity of party
nominations, 91, 92 ; caucus, 92, 93;
nominating convention, 93-95; state
platform, 95 ; former national nomi-
nations, 95 ; national convention, 96-
98 ; legitimate and vicious organiza-
tion, 98, 99 ; local leaders, 99, 100 ;
characteristics and control of the
boss, 100-103, 106, 108, 134; rela-
tion of national to local, 106-109 ;
local non-partisan movements, 108-
III ; reforms, 109-112 ; direct nomi-
nations, 109; party revolt, iii, 112;
functions of the town meeting, 173 ;
municipal, 208-210, 213; party man-
agement in Congress, 241-243 ; in-
fluence of leaders on national legis-
lation, 246. See also Elections,
Suffrage.
Polk, J. K., as president, 260.
Popular government, laissez-faire basis,
35 ; conception of sovereignty under,
35-38; expression through represen-
tation, 38, 39 ; development in Eng-
land, 39-41 ; development In the
colonies, 41-45 ; significance of early
state constitutions, 45-4S ; people the
fountain of power, 51, 52. See also
Liberty, State government.
Population, growth, distribution, and
movement, 8, 9 ; race elements, 9-
II ; growth of urban, iSi, 182, 201,
202; distribution of urban, 203-
205.
Porto Rico, citizenship, 19; annexation,
344- 345 ; government, 367.
Posse comitaius, 5 78, 580.
Postmaster-general, 278, 279; appoint-
ing power, 286.
Post-office, status of fourth-class post-
masters, 293, 294 ; introduction,
508; postage, 508, 509; organiza-
tion, 508, 509; principles, 509; for-
bidden mail, 509, 563 ; second-class
matter, 509; statistics, 509, 510;
special services, 510.
President, genesis of the office, 51;
method of nominating, 95-98 ; influ-
ence on national legislation, 246, 247 ;
veto power, 254-256; history of the
presidency, 259-261 ; method of elect-
ing, 261-264 ! succession, 264, 265 ;
term, 265 ; reelection, 265, 266;
qualifications, 266 ; character, 266 ;
inauguration, 267; home, 267; eti-
quette, 267 ; social duties, 268 ;
tours, 268 ; touch with public opin-
ion, 268, 269 ; compensation, 269 ;
functions, 269, 270; exercise of the
power of appointment and removal,
270-273, 281-2S5 ; and Congress, 273,
274; dignity and power, 274, 275;
and his Cabinet, 280-282 ; as head
of the diplomatic service, 435 ; as
commander-in-chief, 462. See also
Executive.
Press, liberty, 28 ; political influence,
104, 105.
Previous question, in state legislatures,
132 ; in House of Representatives,
251.
Professions, state regulation, 501 ;
schools, 537, 544.
Proportional representation, jy.
Prostitution, attempted prohibition,
563-
Protection, right to, 19.
Protectorates, American, 373-376.
Providence, R. I., qualifications for
municipal voting, 20S.
Public lands, donations to the states,
119, 339; colonial conditions, 335;
state cessions, 335 ; policy of admin-
istration, 335, 336, 340 ; extent, 336;
surveys, 336 ; objections to system
of surveys, 2,37; sales, ^T,y, 338 ; sale
of mineral and forest land, 338 ; do-
nations to individuals, 338, 339 ;
school lands, 33c) ; donations for
internal improvements, 339, 340 ;
data of sales, 340; mismanage-
ment, 340, 34 r ; future condition,
341-
Public opinion, influence on legislation,
596
Index.
133, 246, 257; and the president, 268,
269.
Punishment, convict labor, 502 ; forms,
565, 566 ; indeterminate sentences,
568.
QUORUM, congressional, 229, 230,
241, 242.
TD ACES in the United States, 9-1 1.
See also Immigration.
Railroads, steam, public aid to, for-
bidden, 124, 410; land, 325 ; use of
eminent domain, 327 ; land grants,
339) 34°' 527 ; Pacific Railroad bonds,
409, 527 ; built or aided by states,
409, 521, 522, 526, 527; built by
Cincinnati, 410 ; introduction, 512 ;
consolidation and standard gauge,
513, 525, 526; state control of con-
struction, 521 ; reasons for private
systems, 522 ; defects in charters, 522 ;
growth, 522, 523 ; importance and
good management, 523 ; irregulari-
ties in administration, pools, discrim-
ination, 523, 524 ; state regulation,
524 ; Interstate Commerce Act and
its results, 524, 525 ; and the electric
lines, 531, 532. See also Electric
railroads. Street railroads.
Real estate. See Land.
Reed, T. B., rule on quorum, 241.
Referendum, system and merits, 78-81.
Registration, electoral, tt,, 84.
Religion, right of opinion, 29 ; and
suffrage, 66-69 > state control, 126,
557« 55^1 denominational schools,
541, 549; and the public schools,
548, 549 ; church history, 554-557;
federal relations, 557-559; local
public support, 558 ; freedom from
taxation, 558 ; judicial cognizance of
doctrines, 559 ; denominations and
their strength, 559, 560 ; organiza-
tion of churches, 560, 561.
Removals. See Civil service.
Representation, development, 38-41.
See also Congress, Elections, Legis-
lature.
Residence of legislators, 12, 72, 73,
128, 223.
Resources, national, 5, 6 ; effect on
political development, 6.
Revenue, sources of public, 383 ; from
public property, 408-410 ; fluctuation
of federal, 410, 411 ; from fees, 417,
See also Debt, Taxation.
Revised Statutes, 256.
Revolution, right, 37 ; purpose of
American, 377.
Rhode Island, no veto power, 136 ;
former prohibition, 569.
"Riders," legislative, 252.
Rights. See Liberty.
Riots. See Law and order.
Rivers. See Waterways.
Roads, county control, 179 ; boulevards
in cities, 328 ; state, 417, 515 ;.
colonial, 511 ; pikes, 512 ; main-
tenance, 514; proper road-buildingi
514, 515; attempts to improve, 515;
National Road, 515 ; footpaths, 516;
toll, 516; federal restriction on
bridges, 516, 517. See also Streets.
Roosevelt, Theodore, as president, 261.
Rules, legislative, 131, 132 ; congres-
sional, origin, 239, 240 ; purpose,
240; complication, 240, 241 ; and
party management, 241, 242 ; House
committee, 242.
CAMOA, annexation of Tutuila, 345;
protectorate, 374.
San Domingo, attempted annexation,
344-
San Francisco, budget, 414.
Selectmen, town, 171, 172.
Senate, federal, special functions, 217 ;
choice of senators, 218, 219 ; question
of popular choice, 219; qualifications,
220; term and reelection, 220; pre-
siding officer, 231 ; unlimited debate,
248, 250 ; confirmation of presidential
appointments, 270, 271 ; "senatorial
courtesy," 271 ; treaty function, 441,
442. See aho Congress.
Senate, state, functions, 130 ; presiding
officer, 131. See also Legislature.
Separation of powers, in the colonies,
43 ; in state constitutions, 47, 48 ; in
England and America, 53, 54, 161,
162 ; constitutional safeguard, 272,
Index.
597
273; lacking in rural government,
168. See also Executive, Judiciary,
Legi9lature.
Sheriff, county, 175, 577.
Shipping, American, protection, 447 ;
register, 447, 448 ; tonnage, 448 ;
changes in carrying trade, 448 ; regu-
lation, 448, 449 ; subsidies, 449, 450 ;
protection of passengers, 450.
Slater fund for negro education, 546.
Slavery, and its abolition, 23, 24 ; in
the Philippines, 24 ; in the District
of Columbia, 356.
Smithsonian Institution, 279.
Social compact theory, as a check on
sovereignty, 2,y, and ratification of
amendments, 62.
Society, character of American, 11-13 ;
social rights, 32, 33 ; social functions
of governor, 142 ; of town meeting,
173; of mayor, 194; of president,
268; of consuls, 439.
South America, trade with, 454, 455,
458.
South Carolina, constitution put in
force without ratification, 61 ; negro
disfranchisement, 69; state liquor
monopoly, 504.
South Dakota, referendum and initia-
tive, 80 ; former prohibition, 569.
Sovereignty, described, 35, 36; popu-
lar, and its expression, 36-39.
Speaker of state legislature, 131, 134 ;
of House of Representatives, status,
231, 232; duties and control, 232,
233. 241-
Speculation in stock and produce, 490,
491.
Spoils system. See Civil service.
State Department, state, 143 ; federal,
278, 433-
State government, effect of abnormal
growth of cities, 9; citizenship, 16;
colonial types, 43, 44; and the Union,
status and division of powers, 51-55,
114, 122-124, 310,312-314,354, 355,
357, 358, 536; and the local govern-
ments, 55, 172, 183, 186-18S; and
the referendum, 79 ; and national
politics, 106-108 ; variety and unity
of organization, 114-116; methods
of admission into the Union, 116,
117; equality in the Union, 117;
specific conditions of admission, 118 ;
continuance of territorial laws, 118 ;
privileges in the Union, 118, 119;
rival, 119; territorial integrity, 119;
gifts from the federal government,
119, 339 ; interstate obligations, 120-
122 ; functions and excluded powers,
124-126 ; personnel separate from
that of the nation, 273 ; as party in
federal suits, 312-314 ; control of
federal courts over state laws and
actions, 315-317; real estate, 329-
332 ; cession of land clairns, 335 ;
boundaries, 349-351- See also Con-
stitutions, and the departments and
functions by name.
Stay and tender laws, 494.
Street railroads, problem of transpor-
tation, 205-207, 211 ; development,
206, 528 ; elevated, 206, 529; consoli-
dation, 206, 529 ; underground, 206,
533) 534 ) increase in passengers, 528 ;
wealth, 529 ; reform, 529, 530 ; cor-
rupt purchase of franchises, 530 ;
public ownership, 532-534.
Streets, department, 195; character of
pavements, 515, 516; sidewalks, 516.
"Strikes," legislative, 135.
Subpoena, use, 159.
Subsidies on American shipping, 449,
450.
Subways for city transportation, 206,
533. 534-
Suffrage, alien, 16; colonial, 44 ; history
of Anglo-Saxon, 66, 67 ; qualifica-
tions, 67-69 ; negro, 69, 70, 83 ;
woman, 70, 71 ; state control, 125;
municipal, 208 ; national, 223, 224,
262. See also Elections, Politics.
Supervisors, county board, 177, 178.
Supreme Court, power of expounding
the federal constitution, 64 ; justices,
299 ; salary, 299 ; character, 301 ;
sittings, 301 ; method, 301, 302;
reports, 302 ; appellate jurisdiction,
3°3» 3'-4> 3' 5 ' orig'f^l jurisdiction,
310, 314 ; arbiter on state and federal
jurisdiction, 355 ; Insular decisions,
371-373. See also ]vi6\z\d.rY.
598
Index.
Switzerland, referendum and initiative,
78-81.
Syndicates, 486.
'TpANEY, R. B., as chief justice, 297,
298.
Tariff, with dependencies, 371, 372,
378, 380 ; history, 394-398 ; table of,
on principal articles, 398 ; officials
and collection districts, 398, 399 ;
systems of duties, 399, 400 ; appraise-
ment, 400 ; personal baggage, 400,
401 ; influence on federal financial
system, 410, 411, 428; discriminat-
ing duties on imports in foreign
ships, 447; and foreign commerce,
455. 456.
Taxation, and suffrage, 68; export
duties forbidden, 124; control in
cities, 192 ; lien on real estate, 323 ;
exemption of public property, 353 ;
in territories, 366 ; during military
occupation, 369 ; in unorganized
dependencies, 369; justification, 3S3,
384, 406; land, 384, personal prop-
erty, 385 ; double, 385; income, 385-
387; succession, 387; corporation,
387, 388 ; value of franchises, 388;
federal direct, 388 ; tonnage, 388 ;
light money, 388 ; licenses, 388, 389,
404 ; limitations on federal and state,
389 ; primacy of federal, 390 ; assess-
ment, 390-392, 447 ; inquisition, 392 ;
exceptions, 392, 393 ; rate, 393 ; bet-
terment, 393 ; collection, 393, 394 ;
defects in system, 394, 427 ; federal
internal revenue, 401-404 ; amount,
404, 405; incidence, 405, 406; on
state bank notes, 48S. See also
Tariff.
Taylor, Zachary, as president, 260.
Telegraph, i;io.
Telephone, 510, 511.
Tenure of Office Act, 283.
Territories, District of Columbia, 355,
356 ; national control, 364, 366 ;
origin and forms of government,
364-366, 368 ; termination of govern-
ment, 366; character of population,
366, 367 ; and colonies, 368, 369 ;
status under the Insular decisions.
372, 373 ; and dependencies, 373,
See also Dependencies.
Territory, history of national, 343-345 ;
process of annexation, 345, 346;
external boundaries, 346-348 ; inter-
nal boundaries, 348-351. See also
Dependencies, Land, Territories.
Texas, admission, 117; annexation,
344, 346 ; boundaries, 347.
Thirteenth Amendment, 23-25 , 62.
Title, transfer, 489, 490.
Tonnage, duties, 388 ; discriminating
duties, 447; amount of American,
448.
Town government, genesis of New
England, 170; town meeting, 170-
174; conflict of interests, 171; ex-
ecutive, 171, 172; state control, 172;
in the Middle States, 172; in the
West, 172; compared with county
government, 175, 176; decadence of
town-meeting, 178; expenditures,
418. See also Local government,
and next title.
Township-county system, 176-178;
success, 1 78.
Trade marks, 493.
Transportation, development, 511-513.
See also Electric railroads. Railroads,
Roads, Shipping, Street railroads,
Waterways.
Treason, definition and instances,
578.
Treasurer, state, 143, 144.
Treasury Department, 278 ; adminis-
tration of federal expenditures, 416,
417.
Treaties, forbidden to the states, 122;
history of American, 439, 440; nego-
tiation, 440, 441 ; approval of the
Senate, 441, 442 ; when complete,
443 ; claim of House of Representa-
tives, 443 ; and statutes, 443, 444.
Tree Claim Act, 339.
Trusts, 485, 486.
Tutuila, annexation, 345.
Tyler, John, as president, 260.
T JTAH, polygamy question, 29, 366,
558, 559; woman suffrage, 70;
popular initiative, 80.
Index.
599
yAN BUREN, MARTIN, as presi-
dent, 260.
Vermont, former prohibition, 569.
Veto power, in England, 40 ; in the
colonies, 43, 136; and the optional
referendum, 79; governor's, 136,
137; mayor's, 186, 1S9; president's,
254-256.
Vice-president, presiding officer of
Senate, 231 ; succession to the pres-
idency, 264, 265 : qualifications, 266.
Village government, 169, 170.
Virginia, constitution put in operation
without ratification, 61 ; negro dis-
franchisement, 69 ; early state uni-
versity, 537.
Voting. See Elections.
YyAKE ISLAND, claimed, 345.
War, federal control, 55 ; state
powers, 126, 142; Department, 278,
462, 520, 521; history, 459-462;
declaration, 474 ; severity, 476, 477 ;
captures, search, and blockade, 477.
See also Army, Militia, Navy.
Washington, George, as president,
259.
Washington, D. C, characteristics,
334) 335- ^^^ ^^^^ District of
Columbia.
Waterways, extent, 517 ; federal con-
trol, 517; nature of federal improve-
ments, 517, 518; history of river and
harbor legislation, 519, 520; harbor
improvements, 520 ; superintendence
of improvements, 520, 521 ; defects
in river and harbor legislation, 521.
Weights and measures, metric system,
495 ; congressional control, 496 ; local
regulation, 496.
West Florida, annexation, 344-346 ;
boundaries, 347.
West Indies, trade with, 457.
Wisconsin, Bennett Law, 541.
Woman suffrage, 70, 71.
World power. United States as, 444,
445-
Writs, state, 160, 161 ; federal, 307-
309- _
Wyoming, woman suffrage, 70.
AMERICAN CITIZEN SERIES
Edited by Albert Bushnell Hart, LL.D.
Outline of Practical Sociology ; with Special Reference
to American Conditions.
By Carroll D. Wright, President of Clark College.
With Maps and Diagrams. [_New Edition preparing.'}
Actual Government as Applied under American
Conditions.
By Albert Bushnell Hart, LL.D., Eaton Professor of
the Science of Government in Harvard University. With
6 Colored Maps and 1 1 other Illustrations and Diagrams.
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Financial History of the United States.
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American Conditions.
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Professor of Political Economy in Columbia University.
With 6 Colored and 22 other Diagrams. Crown Svo.
Organized Democracy; An Introduction to the Study
of American Politics.
By Frederick A. Cleveland, Ph.D., LL.D. Crown Svo.
Public Opinion and Popular Government.
By A. Lawrence Lowell. President of Harvard Uni-
versity. Crown Svo.
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