of California
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UNIVERSITY OF CALIFORNIA
AT LOS ANGELES
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GIFT OF
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Social Science ZcxUBoolis
Edited by RICHARD T. ELY
COMPARATIVE FREE GOVERNMENT
SOCIAL SCIENCE TEXT-BOOKS
OUTLINES OF ECONOMICS
By KiciiAKn T. Ely, Ph.D., LL.D. Revised and
enlarged by the Author and Thomas S. Adams,
Ph.D., Max O. Lore.nz, Ph.D., Ai.i.y.v A.
Young, Ph.D.
HISTORY OF ECONOMIC THOUGHT
By Lkwis H. Hanky, Ph.D.
BUSINESS ORGANIZATION AND COMBINATION
By Lewls H. Haney.
PROBLEMS OF CHILD WELFARE
By George B. Mangold, Ph.D.
THE NEW AMERICAN GOVERNMENT
By James T. Young.
OUTLINES OF SOCIOLOGY
By Frank W. Bla^kmar, Ph.D., and John Lkwi.s
Gii.i.iN, pii.n.
COMPARATIVE FREE (lOVERNMENT
By JE.S.SE Macy and John W. Gannawav.
AMERICAN MUNK IPAL I'KOGRESS
By Charlks Ziiiimn.
COMPARATIVE FREE
GOVERNMENT
BY
JESSE MACY
PROFESSOR EMERITUS OF POLITICAI> SCIENCE
IN GRINNELL COLLEGE
AND
JOHN W. GANNAWAY
PROFESSOR OK POLITICAL SCIENCE
IN GRINNELL COLLEGE
THE MACMILLAN COMPANY
1915
All rights reserved
Copyright, 191 5,
Ry the MACMILLAN CoMTANY.
Set u() and electroty}>e<] Published December, 1915.
Kattooot) Qrrti
J. H. CudhltiK <•.. r.rrulrk .V f^inlth C
Norwmxl, Miiix., I' S.A.
J h :) I
PREFACE
With the advent of a world movement toward democracy has
come a comparative study of government. Already a large body
of literature, based on such study, has appeared. The fact is
gaining recognition that to understand clearly the problems of
democracy, and to solve them adequately, world experience with
— free institutions must be drawn upon. Democracy is not the
^ exclusive possession of any people ; nor is it dependent upon
■, any particular form or method. Every nation, whether it is far
^ advanced on the path of freedom or is only beginning the slow
^journey toward liberty, has its lesson for the whole world. It is
of high value to have the important contributions of the various
^states analyzed and compared for the purpose of throwing light
upon the problems and processes of free government. No na-
tion is so far advanced that it cannot learn from the experience
of others.
The comparative study of government is particularly valuable
(^ for the student just beginning his work in Political Science. It
not only brings knowledge of fundamental principles, but gives
breadth of view and develops sympathetic appreciation of what
peoples of other races and nationalities are doing to meet the
demands of modern society. It is the most effective safeguard
against the narrow, intolerant provincialism and the cheap chau-
Vji!>^inism which characterize the attitude of so many persons and
which are so great an obstacle in the path of genuine political
progress. The authors of this book are firm in the belief that
the basic course in Political Science should be comparative in
nature. It is a profound pity that so many men and women en-
ter upon the duties of citizenship in complete ignorance of what
^ the nations of the world are doing to achieve self-government.
X^ A word concerning the plan and purpose of the chapters that
X follow should be given. The purpose is not primarily a com-
\>, parative study of existing governments, but a study of the vari-
^ ous processes and institutions by which free government is being
, iy^attained. In this is found one of the book's distinctive features.
3^The aim is not to give a mass of detail concerning each of the
V
vi PREFACE
governments considered, but to treat of the rise and present
status of democracy by means of the most important contributing
types, emphasizing those aspects which throw light on the main
theme. In this way the student is made acquainted with the
essential features of the world's free governments as they are
now constituted.
Since all governments are manifestly affected by the struggle
for freedom, none can be omitted from the final comparison.
Vet as an introduction to the study some governments are clearly
more important than others and may be used to illustrate the
political organizations of the less conspicuous members of their
own class. In this respect the United States holds first place
because it was the first great state distinctly founded upon the
theory of jxjpular control, and because of its influence, both
direct and indirect, upon all other states. It forms, especially
for the American student, a natural basis for a comparative
study of government throughout the world. The institutions of
the United States are therefore described with considerable de-
tail, fully half of the book being devoted to their consideration.
This part is not primarily comparative, but descriptive.
A knowledge of free government in America involves an under-
standing of the rise of democracy in England ; and therefore
England, for distinctively comparative study, holds the next
place. The United States is itself a product of England. To-
gether the two great Anglo-Saxon states furnish the two leading
types of free government, — the Presidential and the Cabinet.
The one has been copied with many variations by the Republics
of the New V\'orld and the other by the states in which free
governments have developed out of monarchies. The treatment
of the English government is not intended to be exhaustive,
but is suflicienlly full to show England's great contributions to
democracy and to make clear the important contrasts between
English practices and those of other states.
With ec)ual definiteness the third place is assigned to Erance,
whose relation trj Anglo-Saxon history has been intimate and
significant. I-'rance, unlike I'".ngland and thi- United States, is
developing a democracy under the normal condition of close
proximity to rival states. Moreover, the Erench democracy is
c:onspicuous because of the high centralization that prevails. It
involves a governmental (organization that differs fundamentally
PREFACE vii
from those of England and America. Furthermore, it is through
France that modern free governments are most notably linked
to the ancient Roman Republic through the system of Roman
law. French experience, therefore, is of peculiar interest and
value in the comparative study of political institutions.
Germany and Switzerland are selected for study because the
one government exhibits the early stages of transition from
autocracy to democracy and the other an advanced stage of
assured democracy. Switzerland is also of especial interest
because it furnishes a type of free government which is neither
Cabinet nor Presidential, yet is completely democratic. The
comparison is still further extended by chapters on the small
states of Europe and the leading states of South America, and
a final chapter on the relation of federation to democracy.
In the treatment of the various governments special attention
is given to the federal system as an agency of free government ;
to the development and position of the executive authority ; to
political parties as a universal phenomenon in the transition
from despotism to democracy; and to the judiciary because of
its close relation to partisan politics in America and to the con-
flict between autocracy and democracy in all the great states.
The judiciary is of peculiar interest, also, because of the two
competing systems of English and Roman law, involving dis-
tinctly different governmental organizations and different means
of access to the people as the source of authority.
In the preparation of the book the authors have incurred
many obligations. They are especially indebted to Professor
Ely, Editor of the Series, who read the entire manuscript and
made many helpful suggestions. They are also under obliga-
tion to Professors F. A. Ogg, of the University of Wisconsin,
and P. F. Peck and C. E. Payne, of Grinnell College, who read
parts of the manuscript and gave valuable assistance through
both suggestions and corrections. A part of the manuscript on
England was read by Sir Frederick Pollock. Numerous friends
in the various states described have been most helpful in sup-
plying material for the book. Of these special mention should
be made of Professeur C. Cestre, of the University of Bordeaux,
and Professeur Emile Saillens, of the University of Toulouse.
Grinnet.l, Iowa,
October 20, 1915.
TABLE OF CONTENTS
Introduction. The Nature of Free Government .
PACK
xiii
PART I
THE UNITED STATES OF AMERICA
CHAPTER
1. The States and the Nation ....
II. Sources of the Constitution ....
III. Principles of the Constitution
IV. The Presidency
V. The Election of the President
VI. The President as an Executive
VII. The President and Legislation
VIII. The President's Cabinet
IX. National Administration
X. The Congress — General Observations .
XI. The Senate
XII. The House of Representatives — Composition
Organization
XIII. The House of Representatives — Committees
Procedure
XIV. The Party System
XV. The National Convention ....
XVI. Party Machinery and Methods — National .
ix
3
14
22
31
38
55
70
81
96
116
127
145
158
177
190
205
TABLE OF CONTENTS
CHAPTER
XVII.
XVIII.
XIX.
XX.
XXI.
XXII.
XX II I.
XXIV.
XXV.
X.WI.
XXVI I.
XX VI II.
XXIX.
r.\KTY Machinery .\m) Methods — Siate and Local 219
The Federal Court.s — Constitutional Status
and Development
The Federal Courts — Present Organization
Jurisdiction ok the Federal Courts
The Courts and Legislation
Constitutional Readjustment hy Amendment
Constitutional Readjustment through Law,
Custom, and Judicial Construction
The States — Constitutional Position and Powers 307
Thk States — Siikrage and Citizenship . . 319
The States — Police Power and Control ovir
IxiCAL Governments 329
State Legislation 340
Siate Ad.ministkaiion 361
The State Judiciary 379
231
241
250
266
281
295
PART 11
ENGLAND
XXX. Thk Cahim-i Svsikm
XXXI. Nature ok the English Constitution
XXXII. Sources ok the English Constitution koun
1x)cal Government ....
XXX I II. iiiK Rise ok the Cahinet ....
XXX 1\'. Thk Relation ok the Caiiinet io ihk E.xkc
AND IO IHK Jl DICIARV ....
XXXV. Thk JIousk ok Co.mmons ....
XXXVI. TiiK IloisK OK Lords
XXXVIi. 'i'liK .Minis! KV i.n I'aki.iamkm
XXXVIII. TiiK Crown
XXXIX. TlIK ()RI«;iN OK I'AKTIKS
XL. Tin. Parties in I'nri.iamknt
Xi.I. !>>' Al. I'AKIV Old.ANI/.ATION
. 395
. 403
. 412
. 421
K
. 435
. 447
, 459
, 466
. 478
. 491
. 498
. 505
TABLE OF CONTENTS xi
CHAPTER
PAGE
XLII. Religion and the Church 516
XLIII. The Courts and Local Government .... 523
XLIV. Wales, Scotland, and Ireland 533
XLV. The Self-governing Dominions 540
FRANCE
XLVI. Origin and Nature of the French Constitution . 550
XLVII. The Executive in France 562
XLVIII. The Legislature and Political Parties . . . 572
XLIX. The Roman Legal System and Modern Government 582
GERMANY
L. The Origin of the German Empire .... 592
LI. The Present Constitution and Government . . 602
SWITZERLAND
LII. Origin of the Swiss Government .... 614
LIII. The Frame of Government 621
LIV. The Working of the System 632
LV. Switzerland Compared with the United States
and England 639
PART III
DEMOCRACY IN OTHER STATES
LVI. The Small States of Europe 649
LVII. South America and Free Government . . . 656
LVIII. Cabinet and Unitary Government in Chile . . 663
LIX. Federal and Presidential Government in Argen-
tina 672
LX. Federation and Democracy 689
BOOK LIST 701
CASES IN AMERICAN CONSTITUTIONAL LAW . . 719
INDEX 725
INTRODUCTION
The Nature of Free Government
Aristotle and Plato in their descriptions of the ideal city-
state elaborated principles which are being incarnated in modern
free states. In such a state the citizen realized himself through
his conscious participation in the life of the city. There could
be no conflict between the man and the state because man was
a political animal and he became a man by participation in the
body politic. There could be no perfect man until the body
politic was perfected. Perfection in the city implied perfection
in the citizenship. Education and training were the chief means
for making known to each member his place in the service of
the city. Aristotle described two sorts of government, one of
which was in harmony with the true interests of the state, while
the other introduced an alien element which tended to destroy
the state. The officers in the good government retained their
place as conscious members of the body politic. They sought
in all ways to serve the state; they were the willing agents for
the self-expression of the cit)' ; they had no will of their own
apart from the interests of the city. These were the character-
istics of the true government. The bad government was one
in which the rulers separated themselves from the normal life
of the citizen. They made use of office for self-aggrandisement.
They relied upon force in matters of government and thus in-
troduced a state of war between the city and its rulers. The
triumph of a bad government meant the destruction of the body
politic and the substitution of a state composed of rulers and
their subjects, in which the rulers command and the subjects
are forced to obey.
Each of these two kinds of government might have any one
of three forms, — monarchy, aristocracy, or polity for the good;
tyranny, oligarchy, or democracy for the bad. The form, ac-
XIV INTRODUCTION
cording to Aristotle, was of minor importance as compared with
the fundamental question whether the government was in har-
mony with the life of the city or was imposed upon the city
by force.'
In his view, the body poUtic inckided only a small fraction
of the people, while some nine tenths of them were consigned
to perpetual slavery, and were entirely subject to the will of
their masters. Where slavery prevailed in the household it was
natural that the relation of master to slave should be carried
into that of rulers to subjects in the state, rulers commanding
and subjects obeying. Whether the rulers were one, few, or
many, the tendency was to force their will upon the city, and
in practice every form of government became bad. The citizens
became divided into rulers and subjects and the true ideal of
the cit)' vanished. That which the Greeks described as a de-
generate government became the accepted definition of all
government.* Not until the abolition of slavery in very recent
times has it been possible to revert to the Greek conception
of a good government. A citizenship composed of those who
believe in slavery will naturally have a government which is
imposed by force upon the masses of the people. The dis-
appearance of slavery clears the field for a real body politic
composed of the entire people. It becomes possible for the
first time in human history to fulfill the Greek ideal of a state
whose rulers are at the same time subjects of the jieojile.
The new order recjuires a new literature, the use of new words
and phrases, or, what is more difficult, the use of old words with
different and often contradictory meanings. For instance, the
term " government " in the modern state is coming to involve a flat
contradiction of its former u.sage. In the literature of the past,
the term, in its various uses, carries with it tlie idea of com-
pulsion, the forcing of men to do things which they do not wish
to do.' It implies a separation of the people into two classes,
rulers and subjects, self-government being a contradiction in
terms. The new order in a free state reverses the former rela-
tion of officers and p<^-ople. The oflu ers. as the servants of
the people, have no authority not conftrrtd upon ihcm by the
' Aristotle's "Politics," Bcx.k HI
» I hid.. Bwic I.
» Austin, " lA-cturcs on Jurispnidintc, the Pliilov)phy of Positive Law," Part
I. I I, Lecture VI, p. III.
INTRODUCTION XV
people. In an ideal democracy neither officers nor people
would be under command, but the good government described
by Aristotle would be realized. Officers, in common with all
citizens, would be servants of the state, all working to a common
end, government being the chief agency for the self-realization
of the citizens.
The word " Democracy " has had a most remarkable history.
Aristotle's three terms to designate the forms of good government
were " Monarchy," " Aristocracy," and " Polity " ; Democracy
does not appear in the list. The Monarch became a tyrant when
he ceased to rule as a servant of the body politic. The Aristocracy
became an oligarchy or a plutocracy when public officers ceased
to be servants of the city and entered into a conspiracy for its
destruction. The Polity is in itself an ideal government in
which the entire citizenship has become so trained that each
man finds his place in the service of the city by mutual agree-
ment. The degenerate Polity becomes a " democracy," a gov-
ernment by violence and brute force directed by demagogues, —
in all respects a bad government. Yet this same word, used
by Aristotle to designate a vitiated government, which never
had any support or approval, is now taken up and applied to
every movement in modern society which tends to fulfill the
Greek ideal of a polity, or a form of government suited to the
perfect state. Democracy now includes all that Aristotle de-
scribes in his three forms of good government. In place of the
autocrat it would substitute the democratic monarch, a willing
servant of the people, as has been done in Norway. Oligarchs
and plutocrats who have been in conspiracy against the people
give place to families who have won reputation for superior
service, as is the case in some of the Swiss communes and
cantons. The ideal democracy, as the term is now used, is a
state in which all are equally bound to render service and all
freely observe the rules of the service, the necessity for the use
of force being a mark of failure in government. This ideal is
not confined to institutions of the state ; it is carried into the
industrial world where it would abolish industrial wars and
establish agreement among all industrial classes. It pervades
schools and churches, where it is working a revolution no less
significant. Every form of association is being democratized.
Between the extreme and contradictory definitions of the term
Xvi INTRODUCTION
political literature furnishes illustration of numerous interme-
diate uses.' Democracy is often described as government by
majorities. As thus used the word denotes a mere form of gov-
ernment without any implication as to whether it is good or
bad. Such a definition is natural to those who define all gov-
ernment in terms of force. Majorities compel minorities to
obey. The modern democrat, while maintaining the ideal of
government by common agreement, admits that majorities are
of immense use in the transition from despotism to true democ-
racv. It is better to have free and fair discussion of the few
issues in which common consent cannot be otherwise reached
and then to accept for the time a majority vote, than to adopt
the old method of force. As one has said : " It is better to
count heads than to break heads." But the ideal democracy
is not a government by majorities, it is a government by com-
mon consent in which majorities serve as one of the means for
reaching agreement.
The transition from government imposed by the strong upon
the weak to government achieved by the willing cooperation of
citizens involves a great revolution. That revolution is yet in
its early beginnings. Democracy will not have had a fair trial
until its principles have become generally understood and ac-
cepted. It calls for a new type of statesman, a new standard
for the superior man. The old order called for the man who
could break the wills of the multitude and render them submis-
sive. The new order calls for the man of insight, of sympathy
and discernment, who perceives most clearly the needs and
aspirations of the people. It will require many generations
fairly to test the merits of the new order.
The new era involves a new interpretation of history. So
long as the relation of master and slave served as a model for
the organization of the state it was impossible to gain a hearing
for the tea( hings of the Greek jjhilosophers on the real nature
of the true state. That teaching lay dormant for two thousand
years. The contradictory interpretations of llebnw history are
likewise significant. The divine right of kings and every other
form of (lespf)tism have been upheld by appeals to Jewish and
• Ari-^totlr an<\ oihrr (;rr<k wrilrrs K-nvc .1 v.irirty «'f mcininK-* to the term.
"Wh.1t AriMollc (all.n ToXirr/a (ix.liiy) Polyhion tnlls iv>^Kparta (dcrnocr.-icy) ;
what Arintollc (.ills irfnoxfMrla I'ulytjio.'* tall» dx^^oKparla." — I'rccman, " Growth
o( the Englub Con»lilulion," p. 1O7, London, 1884.
INTRODUCTION Xvii
early Christian literature. Effective use is now made of the
same literature in support of the modern free state. The free
state calls for no new principles ; all needful principles are
clearly stated in Greek and Hebrew and other ancient literature ;
the application alone is new. As the upholders of the former
order have sought to monopolize the interpretation of history,
advocates of free government are now disposed to be equally
monopolistic. No past human experience is foreign to their
needs ; the entire course of evolution is interpreted as contribu-
tory to the one end of producing the free man in a congenial
environment. Slavery and despotism have themselves been
cardinal agencies in making men free. They have compelled
their victims to combine for self-protection and thus to gain
experience for the future democracy. The revolution now in
progress arises from the conviction that all human beings may
become free without the use of the brutal agencies of the past.
Western civilization has always meant a freer civilization.
Innumerable communities have been organized during the mi-
grations of races westward, each of them a new experiment in
government. The movement falls into two divisions. For many
centuries after the nations had crossed the Eastern continents
the Atlantic Ocean served as a barrier to their further progress.
Then free communities were organized on its western shore
and the migration went on across another great continent.
Modern democracy is thus rooted and grounded in the past.
Its teachers have been states rather than individuals. All states
contribute, but some much more than others. In the Old World
the great contributors have been Palestine, Greece, Rome,
France, and England ; in the New the United States. Free
states assume innumerable forms and modifications, but a few
leading types serve as a basis for classification. It is customary
to classify nearly all free governments as of Cabinet form after
the English model or of Presidential form after the model of the
United States. Cabinet governments appear in the states in
which free governments have been derived from monarchy, and
are mainly confined to the Old World, while the United States
is accepted as a model for the organization of American Repub-
lics. The Old World form is the result of evolution ; the New
World form is characterized by artificial construction.
Another classification is based upon principles even more
X\iii IXTRODUCTION
fundamental. Except in the United States and in the British
Empire free governments are founded upon the principles of
law and government developed by the Roman Republic and
perfected by the Roman Empire. The Roman system involves
radical diflferences in the allotment of powers to the legislature
and to the executive, and a still greater distinction in the place
assigned to the judiciary. France holds a leading place in
the adaptation of the Roman system to the needs of modern
democracy.
PART I
THE UNITED STATES
COMPARATIVE FREE
GOVERNMENT
CHAPTER I
The States and the Nation
The term " free government " implies no particular form
of government. Such a government may be of the unitary
type and be a monarchy, as in England, or a republic, as in
France. It may be of the federated type and be republican,
as in the United States, or monarchic, as in the German Em-
pire. It may be presidential in form or of the cabinet t3^e.
It is not the form that makes a government free, but the fact
that it is dependent upon the people whom it governs. A
free government is a popular government, and any govern-
ment that is based upon the will of the people and is controlled
by that will is to be classed as free.
The United States has a government whose powers are
divided between the Nation and the States. But it is a gov-
ernment of the federal type and not a mere confederation.
There is a vital difference, as the history of the United States
has revealed. A confederation involves a union of independent,
sovereign states for some common purpose. Sovereignty con-
tinues in each of the states. The union is essentially temporary
in its nature, a kind of treaty alliance, and each state is free
to withdraw at any time it chooses. Federal government im-
plies a union of states or commonwealths to form a single
state whose governmental authority is divided between a central
organization and the various commonwealth organizations.
Sovereignty resides in the state as a whole and not in the com-
monwealths that compose it. Each of the component units
is an integral part of the larger state and cannot withdraw
3
4 C0MPAR.\T1\E FREE GOVERNMExNT
from it. Each of the commonwealths has its own government
which exercises full control over its own local affairs. It is
independent of all the other commonwealths and to a large
extent independent of the central authority, but not entirely
so, as in the case of a confederation. The central government
cannot interfere with the commonwealth in its own sphere
and the commonwealth cannot interfere with the central gov-
ernment. The authority has been divided between them and
each is supposed to go its own way in regard to the matters
that have been assigned to it.
Federation Inevitable in the United States. - Political and
economic conditions existing at the time the Constitution of
the United States was framed determined the form of govern-
ment that was to be csta])lished. A federal government was
not only logical but inevitable. A unitary government was
impossible. The agencies of the central government under
the Articles of Confederation were powerless and the Confedera-
tion was a failure. Each of the thirteen States was a law unto
itself and could obey or ignore the commands of the Congress
as it pleased. To remedy the weaknesses of the Confederation
the new government must possess wide powers, must be supreme,
indeed, with respect to a good many things, but, under the con-
ditions that j)revailed, no constitution could be adopted which
did not recognize the equality of the Slates and their independ-
ence of one another and, to a large extent, of the central govern-
ment itself.
The principle of federalism alone could meet the requirements.
The States, though united by a common interest in the i)rosecu-
tion of the war against England, were jealous and suspicious of
one another after their independence had been gained. Their
commercial and industrial interests were in conllict. and dis-
trust |)revailed on every side. Particularly were the small
S ites distrustful of the large States and fearful lest their rights
and equality might be destroyed under the new government
through the latter's pre|)onflerating influence. Moreover, the
predominant sentiment in all of the States was opposed to any
unnecessjiry ccntrali/alion of power. It was recognized that
there must be some centralization, but this should be held to
the lowest limit possible and still give the (ciitral government
sufTicicnt power to do its work effectively. \ government of a
THE STATES AND THE NATION 5
unitary character, therefore, or one based upon the monarchic
principle, was out of the question. It was to free themselves
from this principle that the people had fought and suffered,
and the liberties thus gained must not be endangered by setting
up a new master which might in time become as objectionable
as the old one had been.
The real problem confronting the framers of the Constitu-
tion, therefore, was not that of determining the form of govern-
ment ; that was settled by the very conditions which gave rise
to the need for a new government. Their great problem was
the extremely difficult one of setting up a federal government
in which there should be a proper balance of powers between
the States and the central government. The futile, even
farcical attempts of the Congress to control matters of com-
mon interest under the Articles of Confederation made it plain
that the new central government must be strong; but not too
strong. All possible danger of a monarchy must be averted.
On the other hand, the States must retain all of the power that
was necessary for the protection of their own independence
and rights and for the solution of their own local problems ;
but not too much power should be retained. The weakness
and the inefficiency of the old Confederation must be avoided.
But how should this nice balancing of functions and powers
be brought about? Just how much power should be retained
by the States and how much should be given to the central
government? In what sphere of activity should the latter
be supreme and in what the former? Exactly what limitations
should be imposed upon each? Just how should the adjust-
ment of powers be made? This was the problem which faced
the men of the constitutional convention. Its right solution
demanded the most consummate statecraft ; and it is not to the
discredit of the men who framed the Constitution that their
work was deficient in some respects. A perfect adjustment of
the relations between the States and the central government
was impossible.
This problem would not have been so difficult had the States
not existed as independent commonwealths, each with its
own fully developed government. If the task had been merely to
create a new government of a unitary type, or even of a federal
type, parceling out the powers between the States and the
6 COMPARATI\-K FREE GOVERNMENT
Nation, it would have been much more simple. The Constitution
would then have been the source of all powers for States and
Nation alike, and it would not have been impossible to dis-
tribute these powers in such a way as to eliminate all cause
of friction and discord. But such was not the case. The
States existed. In theory, at least, each was an independent
state, possessing all the powers that any independent common-
wealth could possess. Practically, of course, none of the States
was able to maintain its sovereign supremacy. Nevertheless,
all jealously and insistently asserted their independence, and the
practical difficulty of placing over them an effective central
authority was one of vast proportions. This could be done only
by inducing the States to surrender certain definite powers to
the Nation and to impose certain definite restrictions upon
themselves. Without the latter the former would be worthless.
Distribution of Powers. — It should be clear that the central
government is one of conferred or limited powers. These are
sometimes spoken of as enumerated powers. The Nation can
exercise only those powers that are specifically delegated to it
by the Constitution or are necessarily implied either by the
definite grants or by the Constitution as a whole. Obviously
the grant of power to do a certain thing carries with it the
power to provide the necessary means to make that power
elTective.' The definite recognition of the doctrine of implied
powers was made by the Supreme Court early in the national
history. The central government can do nothing that it is
not permitted to do by the Constitution, either directly or by
implication. Over the powers that have been granted to it,
however, its control is absolute.
The States, on the other hand, arc not governments with
conferred or delegated powers, but with reserved or inherent
powers. All powers belong to the States which have not been
specifically denied to them by the Constitution or granted to the
central government. In the case of the central government
it must be shown afTirmalivcly that a power has been granted,
either expressly or impliedly, before its exercise can be valid.
' "Let thcr rn<l l)C legitimate, let it he within the scope of the <onslituli()n, .ind
all mcon.H whii h are a|)|)r()pri;ile, which are plainly iidapte'l to that end, which
arc not prohil)i(c<l, hut consist with the letter and spirit of the constitution, are
conilitutional." — AtiCuiloch v. Maryland, 4 Whcalon 31O (i8iq).
THE STATES AND THE NATION 7
In the case of the States the denial of the power must be affirm-
atively shown before its exercise can be considered invalid.
The States were antecedent to the Nation and originally pos-
sessed all power.
The principle which controlled in the distribution of powers
was a simple one. Questions that were national in their scope
or that affected more than one of the States were placed under
the control of the central authority. The control of questions
that were local or intrastate in their character was left to the
States. Expressed in this general way the principle which guided
the Constitution makers is simple and easily understood ; but
in the actual practice of determining what is intrastate and what
interstate in its reach, difficulties of the most intricate nature are
frequently -encountered. The great crises of the Nation's
history, indeed, have centered around the question of whether
certain powers had been granted to the Nation or reserved to
the States.
According to the division of powers effected there was lodged
in the federal government control over foreign relations, inter-
state and foreign commerce, questions of war and peace, army
and navy, post office, coinage, currency, and other matters that
are of concern to all of the States. The taxing power, of course,
was given to the central government, for without that it would
be as helpless as the Congress had been under the Articles of
Confederation.
The States retained control over all local questions and insti-
tutions, education, the care of the poor, private law, both civil
and criminal. They possess " all the ordinary legal choices
that shape a people's life. Theirs is the whole of the ordinary
field of law; the regulation of domestic relations and of the
relations between employer and employee, the determination of
property rights and of the validity and enforcement of contracts,
the definition of crimes and their punishment, the definition of
the many and subtle rights and obligations which lie outside
the fields of property and contract, the establishment of the laws
of incorporation and of the rules governing the conduct of every
kind of business." ^ It is plain that the great bulk of govern-
mental activity rests with the States. The central government
1 Wilson, " Constitutional Government in the United States," p. 183.
8 coMPARArni: krkI': government
may do comparatively few things, whereas the States may exer-
cise authority in a multitude of things.
In the case of both Nation and States a number of definite
prohibitions were established by the Constitution. These are
contained for the most part in sections 9 and 10 of Article I
and in the first ten amendments to the Constitution, known as
the Bill of Rights. By these provisions Congress and the
States alike are prohibited from passing bills of attainder or
ex post facto laws, from suspending the writ of habeas corpus,
and from granting titles of nobility. Congress is also forbidden
to place duties upon articles exported from the States or by its
regulation of commerce give preference to any State ; it cannot
pass laws restricting freedom of religion or of speech or of the
press or of public meeting ; it cannot deny trial by jury or estab-
lish a religious test for the holding of j^ublic office.
The States, in turn, arc forbidden to enter into any treaty or
alliance, coin money, make anything but gold and silver coin
a legal tender, or pass any law impairing the obligation of con-
tracts. No State can, without the consent of Congress, levy
any imjjort or export duties or enter into any compact with
another State or with a foreign nation. No State shall main-
tain any but a republican form of government, or abridge the
[)rivilcges or immunities of citizens of the United States, or
deprive any i)erson of life, liberty, or property without due pro-
cess of law, or deny to any person the ef|ual protection of the
laws. In the case of both States and Nation other restrictions
are im[)osed, in addition to those mentioned.
With regard to a number of subjects there is a concurrent
jurisdiction. Bankruptcy, for instance, is a subject upon which
both the States and the Nation may legislate. The rule govern-
ing this point, as determined by the courts, is to the elTect that
the States may exercise concurrent power in all cases with the
exce[)tion of three; first, where the power is lodged exclu.sively
in the federal Constitution; second, where it is given to the
United States and prohii)ited to the States; and, iliird, where
from the very nature and subjects of the power, it must neces-
sarily be exrlusively exerriserl i)y the United States govern-
ment.'
' Gilman v, /'ltili'trlf<ht i, j W.ill.u c 715 l\y,h(>); Slurnes v. CrownittshirU, 4
Whcaton 122 (1819).
THE STATES AND THE NATION 9
In case of conflict between the law of a State and the law of
the Nation upon any subject over which there is concurrent
power, the law of the State must give way. Of course if Congress
does not pass any law at all, the States are free to act as they
please. Most important of these concurrent powers is the
taxing power, for neither the Nation nor the States could survive
without the power to raise revenue.
It is obvious that although the principle upon which the divi-
sion of powers was based is simple, the actual division was not
absolute, that there is a good deal of overlapping of the two
authorities, and that friction can easily arise. This has occurred,
indeed, again and again. There is not and cannot well be an
exact delimitation of authority. Moreover, the new economic
and poHtical problems that result from constantly changing
industrial and economic conditions make it inevitable that
conflicts shall continue to arise from time to time. As the
relations of Hfe become more complex the difficulty of determin-
ing exactly what belongs to the States and what to the Nation
becomes greater. Particularly troublesome in this connection
have been the questions of industry and commerce. Authority
claimed and in various ways exercised by the Nation over inter-
state commerce has repeatedly been denied by the States. And
notwithstanding all of the controversies that have arisen since
the Constitution was adopted, the precise amount of powxr
which the Nation has is still unknown. There can be no doubt
that the tendency has been for it to exercise more and more
control. The relation existing at present between the States
and the Nation is by no means what it was at the beginning.
There has been beyond question a shifting of powers from the
States to the national authority. Centralization has taken
place far beyond the thought of the framers of the Constitution.
To what extent this centralizing process should continue is
one of the great and apparently abiding problems before the
American people.
Growth of National Power. — Centralization was feared by
many of the men who helped to frame the Constitution and every
effort was made to protect the rights and powers of the States.
One group in the convention favored a strongly centralized
government even at the expense of the States; another group
sought to hold the power of the central government to the
lO COMPARATIVE FREE GOVERNMENT
lowest limit possible. The former emphasized national interests
and the latter local and State interests. These two views later
were championed by the political parties that first sprang into
existence after the adoption of the Constitution, the Federalist
party, under the lead of Alexander Hamilton, standing for the
power of the Nation, and the Democratic-Republican party,
under the lead of Thomas Jefferson, standing for the powers and
rights of the States. There has been incessant dispute over the
Une of separation of the two authorities ever since, and the end
is not yet.
One of the first instances of the denial of federal authority
on the part of the States was in connection with the estabUsh-
ment of the second United States Bank in 1816. Two years
later Maryland imposed a tax upon the circulating notes issued
by the branches of the bank and circulating within the limits of
that State. The famous case of McCulloch v. IMaryland was
the result.' Maryland denied the power of Congress to establish
the bank because there was no express grant of power for that
purpose. Chief Justice Marshall held, however, speaking for
the Supreme Court, that the bank was constitutional notwith-
standing the absence of a specific grant of power, and so definitely
established the principle of implied powers. By this decision
the national power was greatly strengthened.
The Nullification Act of South Carolina in 1832 brought on a
real crisis over the rights of the States as against the rights of
the Nation. Congress had passed a tariff law to which a nimil)er
of the States objected. South Carolina through a convention
passed an ordinance of nullification and thus defied the national
authority. But under the vigorous leadership of President
Jackson, Congress adhered to its policy and nullification failed.
Again the supremacy of the federal government was maintained
in the face of bitter opposition by the States, and a " critical
matter, of lasting importance, was decided. The federal gov-
ernment was conceded the power to determine the economic
opportunities of the States." '"
But the climax of the struggle over States' rights was reached
in the great Civil War which grew out of the long and bitter
slavery controversy. Whatever may have been the constitu-
' 4 Whcaton ^(^ (iSuj).
* Wilson, " Constitutional Government in the I'nitcd States, " p. 175.
THE STATES AND THE NATION II
tional right of Congress with respect to slavery in the Territories
or the constitutional right of a State to secede, the outcome of
the struggle was the absolute supremacy of the Union. By the
arbitrament of war the relation of the States to the Union, as
far as secession is concerned, was settled for all time. The
United States is not merely a confederation.
The controversies that have arisen since the Civil War and
the reconstruction period have centered about the control of
commerce and the great corporations. A new industrial order,
involving vast economic interests and tremendously difficult
problems, has developed which was not and could not be fore-
seen when the Constitution was adopted. The control of com-
merce among the States, which was given to the national gov-
ernment by the Constitution, was a simple thing at the beginning.
It involved no great centralization of power in the Nation.
But the rapid and unforeseen development of industry, the
growth of great railway systems and huge industrial corporations
doing business in all of the States of the Union have transformed
the Ufe of America and have, under the interstate commerce
clause of the Constitution, brought about a vast centralization of
power in the national government. The States have not kept
pace with the Nation in this development and more and more
the people look to the central government for protection and
relief from corporate and monopohstic oppression. In the
changed and changing attitude of the people there is perhaps
grave danger for the States. It is possible that the readjust-
ment which seems inevitable may involve some kind of reorgani-
zation of the State governments and a renewed activity and
control on their part in the field of corporate industry, but the
trend for years has been decidedly in the other direction, and the
outcome seems certain to be another recognition of the suprem-
acy of the national authority concerning vital pubhc problems
which are now the subject of dispute. The tendency from the
beginning has been toward a larger and more effective national
control. It is not unreasonable to assume that the centralizing
process will continue.
Supreme Court's Control over Division of Powers. — It is
important to note that the ultimate authority to determine
whether a question comes within the power of the States or of
the Nation rests with the national government. It is the Su-
12 COMPARATIVE FREE GOVERNMENT
premc Court of the United States that interprets the Constitu-
tion, and by constitutional interpretation the powers of the
Nation may be extended far beyond their present limits. Ex-
perience has shown repeatedly that this may be done. The
Constitution is constantly being altered by the interpretation
process. Some changes have been accomplished by the formal
process of amendment, but many of the most significant modi-
fications have been brought about through judicial construction.
The fame of Chief Justice Marshall largely rests upon decisions
which contributed to the development of the national authority.
There is no reason to think that changes in the meaning of the
Constitution by this method will cease ; indeed, such changes arc
necessary in order that the Constitution may be adapted to new
needs and new problems. It may well be expected, if past and
present tendencies are indicative of future development, that the
Nation will acquire by the interpretative process a larger control
than it now has, unless the people place an arbitrary limit upon
its powers by the formal amendment of the Constitution.
Some friction between the States and the national govern-
ment was unavoidable. The framers of the Constitution en-
deavored to reduce the chance of conflict to the lowest limit
possible, but its entire elimination was not to be expected.
On the whole, the complex g()\ernmenlal machine has worked
with wonderful smoothness. The student may well wonder
why more friction has not occurred. The explanation, in large
part, is found in one very important fact. The central govern-
ment is not dependent upon the States as such for the jwwers
it exercises or for the accomplishment of its purposes. It acts
directly upon the people. It has its own governmental machin-
ery which is entirely separate from the governments of the
States. Its laws arc passed and enforced by its own agents.
It |)erf()rms its functions as if the States did not exist. In its
own sphere of action it is sui>reme.'
The Stales, on the other hand, arc beyond the (ontrol of the
N'alion in the exercise of the powers that belong to them. As
long as they keep within the limits set by the federal Constitu-
tion they are free to act as they phase. The national authority
can in no way interfere. Each State may go its own way as
' For .1 radically diflcrcnl (lolicy sec chapters which follow on Germany and
Switzerland.
THE STATES AND THE NATION 1 3
long as it does not violate the fundamental law as contained in
the Constitution. This freedom from dependence upon each
other in the discharge of the functions which each must perform
accounts in large measure for the orderliness and smoothness
with which the whole complex system has worked. The citizen
owes allegiance to both governments, but this double allegiance
involves no practical conflict of duty.
REFERENCES
Beard. American Government and Politics, Edition 1914, Chaps. IH, VIII.
Bryce. Tlie American Commonwealth, Edition 1910, Vol. I, Chaps. II,
XXVII, XXVIII.
WiLLOUGHBY. The American Constitutional System, Chaps. I, II, VII, VIII.
Wilson. Constitutional Government in the United States, Chap. VII.
WooDBURN. The American Republic, Chap. II.
CHAPTER II
Sources of the Constitution
The Conslilution of the Liiited Stales is the product of both
evolution and conscious effort. It is not the invention of the
men who composed the Constitutional Convention of 1787,
although some of its features were worked out b\- them without
experience as their guide. In most of its essentials, however,
it is the result of experience and not of theory, as is true of nearly
all of the important, vital political institutions of the world. Its
roots are in the past and an adequate comprehension of its
principles and of the scheme of government which it established
cannot be obtained without an understanding of the essential
facts in the previous history of the States and the Colonics.
It is a mistaken view which holds that it was cut out of whole
cloth, so to speak, by the convention that framed it. Clad-
stone's famous assertion that it is " the most wonderful work
ever struck off at a given time by the brain and i)urpose of man,"
though in a sense true, is f|uite as noteworthy for the false
understanding it is likely to cause as for the unstinted admiration
it expresses.
Nevertheless, the Constitution is not an unconscious growth
like the unwritten Constitution of England. As it stood at the
beginning it was, in an important sense, the result of <lelil)irale
effort, of conscious analysis. Some of its features, particularly
the melhofl of choosing a President, were essentially the inven-
tions of the men who framed it. 'ilic materials of which it is
made, however, the princijjles whit h il iiiibodics, even the lorm
of government whiih il outlines, were furnisiicd and deterniined
by the experience of the colonists and tlie economic and |)olitical
conditions that lerl to its adoption. Its framers took these
materials and princi|)les and shaped them to their puri)osc. It
is this conscious act ion of the people through their representatives
and the sanction which they gave to the Consliluiion ihrough
14
SOURCES OF THE CONSTITUTION 15
the process of ratification, that differentiates it so fundamentally
from the Constitution of England. The latter was never
framed or adopted, but is entirely the product of English political
history and experience. This fundamental fact must never be
lost sight of in the comparative study of the political life and
institutions of the two countries. It is one of those basic
things, to overlook which means confusion and inadequate
understanding.
Colonial Experience. — What were the materials that were
at hand with which to build the new government? First of all
there was the experience of the colonists with their colonial
governments. The people had chief executives in the form of
governors. They had legislatures for the enactment of laws and
courts for their interpretation. They were familiar with the
processes and principles of representative government. They
were devoted to political liberty. In short, the people had
worked out, and in the school of experience had learned how to
use, the basic principles of the Constitution.
In its broad outlines the form of government that prevailed in
the different Colonies was similar to that which was established
by the federal Constitution. There were the three departments
of government, — legislative, executive, and judicial, more or
less definitely separated in their functions. The executive
authority was largely in the hands of the governor who attended
to the enforcement of the laws, made appointments to ofiice,
granted pardons, commanded the military forces, recommended
legislation to the assembly, exercised the veto power, and per-
formed many other functions similar to those conferred upon the
President by the Constitution. In the colonial governor and
the governor of the States after independence from Great Britain
was declared, the Constitution makers found the prototype of
the President and in the creation of the presidency, were guided
by the experience which the people had had with these colonial
and State executives.
The legislatures in all of the Colonies except Pennsylvania
were composed of two houses. The upper house, usually
called a council, was an appointive body e.xcept in Massachu-
setts, Rhode Island, and Connecticut. It took part in all legis-
lative matters along with the assembly, but in addition had
certain executive and judicial duties as well. In this combining
l6 COMPARATIVE FRF.K COVERNMKXT
of the diflerent functions of government the colonial council
was not unlike the Senate provided for in the Constitution, so
that the positions of the council and the Senate in their respective
governments are not dissimilar. In each Colony, also, there
was an assembly which was elective. This body was an impor-
tant part of the colonial legislature and in its manner of selection
suggests the House of Representatives under the Constitution.
The assemblies usually had broad legislative powers and re-
peatedly claimed exclusive rights over certain functions of pri-
mary importance like that of taxation. The colonial legislature
as a whole was suggestive of a form of organization fi)r the
national congress.
In each of the Colonies there was a system of courts. The
lowest courts were the justice courts, ruled over by justices of the
peace. Next above these were usually county courts that had
a wider jurisdiction and exercised larger powers than the justice
courts. At the head of the system in each Colony there was a
high or supreme court that settled the most inij^ortant con-
troversies and heard ai)peals from the lower courts. Above
these, of course, was the Privy Council in England to which
appeals in some instances might be taken. So there was in the
Colonies a series or gradation of courts which contained a definite
suggestion for a system of courts in the Nation. The analogy
between these colonial institutions and those provided for in
the federal Constitution must not be carried too far; but it is
[)lain that in setting up the three great departments of the fed-
eral government the framers of the Constitution had a definite
body of experience, in which they had tluir own personal share
and to which they could look for guidance in their action.
Individual and Collective Experience of the States. — The
colonial rx|)(ricii( c with the- ditTinnt <lr|>art nicnts of govern-
ment was merged in that of the States after their indiju-ndeMce
was declared. Some of the States went right on with little or
no change in their governmental organizations. Of course
there was a great deal of confusion in setting u|) the new Stale
goverimients to take the place of the old colonial organizations;
that was inevitable. Most of the States ado|)ted new constitu-
tions, but the outlines of the governments thus .set up were
essentially the same as under the colonial charters. Connecticut
and Rhode Island <lid not even I'md it necessary to change ilieir
SOURCES OF THE CONSTITUTION 17
charters at all, but simply renounced their allegiance to the
English authority and went on with their accustomed agencies
of government. The experience of the States, then, is to be
taken simply as a continuation of that of the Colonies and in
this combined experience is found the chief source of the federal
Constitution. The men who framed that document had shared
in this experience and had contributed to it. So in organizing
the new federal government they drew upon their personal
knowledge of institutions which they had helped to operate in
the Colonies and in the States.
In addition to the experience of the States considered sep-
arately, as a factor in determining the form and powers of the
central government under the Constitution, is that of the States
collectively under the Articles of Confederation. This was
largely negative in its influence. It revealed clearly what the
new government ought not to be. Reference has already been
made to the jealousies and conflicts among the States and to
the weakness of the Congress under the Confederation. Prac-
tically the power of Congress amounted simply to the power
to advise or request the States to act in accord with its plans.
They could grant or refuse the request as they pleased. Con-
gress could not deal with the people of the States directly and so
compel obedience to its commands ; it could deal only with the
States as such and had no power whatever to force them to do
its will. Congress could not even force the levy and collection of
taxes with which to meet the necessary expenses of government.
The States v/ere sovereign. The Congress was without au-
thority. The government of the Confederation was a failure and
every passing day made it more and more plain that if peace was
to continue and trade and commerce thrive, there must be an
effectual readjustment of the powers of the central govern-
ment.^
It was this weakness on the part of the Congress and the
increasing hostility among the States that led directly to the
calling of the constitutional convention of 1787. Particularly
was it felt that the commercial relations of the States would
have to be harmonized and controlled by some effective central
' For a good brief statement of the defects of the government under the Articles
of Confederation, see article by Professor Max Farrand in The American Political
Sciciue Review, Vol. 2, p. 532.
c
l8 C(»MrAK.\TT\K 1 RKi: GONERNMENT
authority. Several ineffeclual attempts had been made before
1787 to accom|)lish this result. The last ellort of this kind, im-
mediately preceding the convention of 1787, was made by a
convention which met at Annapolis in 1786. All of the States
had been asked to send delegates, but only five responded.
The object of the convention was to seek a remedy for the com-
mercial troubles of the States, and to consider particularly the
question of import duties. Realizing its own helplessness, the
convention voted to recommend to Congress the calling of an-
other convention which should meet in Philadelf)hia the next
year to revise the Articles of Confederation in such a way as
would, when adopted by the States, " render the Federal Consti-
tution adequate to the exigencies of government and the pres-
ervation of the Union." Congress acted upon the recommenda-
tion and called the convention which framed the present federal
Constitution.
This convention, which assembled in Philadelphia on the
14th of May, 1787, recognizing the futility of attempting to
rejjair the broken-down governmental machine of the Confedera-
tion, ignored the instructions of the Congress to revise the
Articles and framed an entirely new constitution. So the
immediate cause of the- framing and adoption of the present
federal Constitution was the wretched weakness and inefllciency
of the ('(jnfcfleration. The Articles provided for neither a
central executive nor a central judiciary, and Congress, as has
already been said, was helpless as against the States. This
failure of the Confederation, with its disastrous effects upon the
relations of the States, particularly their commercial relations,
had a j)rofound influence upon the work t)f the convention of
1787. The men of that convention had before their minds an
object lesson of what the new government ought not lo be.
I'his object lesson had a positive as well as a negative influence,
however. It made the fact |)erfeclly plain thai the new ii-ntral
government must be one of real powers and that it must be free
from dependence upon the Stales in the discharge of its fund ions.
Its iM>wers must be its own and rest upon a foundation that
could not be fjueslioned or overthrown by the States. There
can be no doubt thai in this cnllective experience of the States
under the Confederation, .so di.saslrous in its consequences, is
found one of the chief sources of the fe<leral Constitution.
SOURCES OF THE CONSTITUTION 19
English Institutions and the Common Law. — Although the
influences already described were the chief ones in determining
the fundamentals of the new Constitution, there were others
of considerable importance which should be noted. The Eng-
lish Parliament, while by no means a model for the federal
Congress, was without doubt before the minds of the men who
drafted the Constitution. There were many things about the
English Constitution, as it then was, that appealed strongly to
the men of the convention and to the people of the States gen-
erally, for after all they were true Englishmen, devoted, as were
the people of England, to those fundamental human rights and
liberties which are the basis of the English Constitution. Those
great historic guaranties of liberty like Magna Charta and the
Habeas Corpus Act belonged to them as well as to the people of
England. They cherished the rights that had been won through
the long course of English history and intended to preserve them ;
that is why they rebelled against the oppression of George the
Third. It is indisputable that they admired the spirit of the
English Constitution even though they exaggerated the impor-
tance of its monarchic features. ' The men in the constitutional
convention were thoroughly familiar with the working of English
political institutions and, determined as they were to avoid the
risks and dangers of monarchy, it is certain that they were
influenced in their work by the underlying principles of the Con-
stitution upon which those institutions were based.
Likewise the English Common Law was an important factor.
This system of law had been transplanted to America when the
Colonies were first established and in it were grounded those
fundamental rights which the people sought to preserve. Its
influence upon the men who drafted the Constitution is clearly
discernible. One principle of the Common Law in particular
is basic in the Constitution. It is the principle, as Bryce
points out, " that an act done by any official person or law-mak-
ing body beyond his or its legal competence is simply void."
By the application of this principle the framers of the Constitu-
tion were able to divide rather definitely the powers of govern-
ment between the States and the central government, and to
separate the powers of the three great departments of the central
government as established by the Constitution. As Bryce puts
it, they had in this principle " a key to the difficulties involved
20 COMPAR.VIUK 1 REi: ClOVERXMEXT
in the eslahlishmenl of a variety of authorities not suborcHnatc
to one another, but each supreme in its own sphere. The appli-
cation of this principle made it possible not only to create a
National government which should leave free scope for the
working of the Slate governments, but also so to divide the
powers of the National government among various persons and
bodies as that none should absorb or overbear the others." '
In the practical working of the entire federal system this prin-
cii)le has been of great value. Upon it is based one of the
fundamental doctrines of the Constitution, the doctrine of
the separation of powers. Manifestly the Common Law
must not be overlooked in listing the sources of the Constitu-
tion.
Political Philosophy. — The political ])hilosoj)hy of certain
se\enleenlh- and eiglUeenth-cenlury writers should also be men-
tioned as an influence that contributed something to the consti-
tutional system of the United States. But this influence was
slight and it is easy to overemphasize its significance. It must
be remembered that the builders of the Constitution used expe-
rience and not theory as the foundation of their structure.
Notable among the philosophers who have been credited with
having prt)foundly influenced political evolution in .Kmerica
are Harrington, Locke, Montes(juieu, and Rousseau. The
statesmen who drafted the Constitution were certainly familiar
with the writings of these men, and no doubt were influenced l)y
them, but there is little, if anything, in the Constitution itself
to indicate that fact. In this resjjcct the Constitution is very
different from the Declaration of Independence.- In the latter
there is abundant evidence of the influence of eighteenth-century
I)hilosophy. The personal views of the men who framed the Ct)n-
slitution were without doubt aflected more or less by the writ-
ings of the philosophers mentioned, but it was not to these writ-
ings but to the i)olilical experience of their own peo|)le that they
turned for the fundamental facts upon which to erect the new
gf>vernmental organization. It would be wrong to say that these
writers had no influcnic at all upon the result, l)ut that influence
was very slight as (oinjiared with the experii-nce of the colonists
• Bo'cc. " The American C'ommonwcallh," .New ;in»l KcvisctI Kdilioii, Vui. i, f).
.10.
' Hrlow, Ch.iii XI.VI
SOURCES OF THE CONSTITUTION 21
in working out the problems of free government with their own
colonial and State institutions.
REFERENCES
Beard. American Government aiid Politics, Edition 1914, Chaps. I, II.
Beard. Readings in American Government and Politics, pp. 25-34. (The
Articles of Confederation.)
Bryce. The American Commonivealth, Edition 1910, Vol. I, Chap. III.
Farrand. "The Federal Constitution and the Defects of the Confedera-
tion," The American Political Science Review, Vol. II, p. 532 (Nov., 1908).
Hart. Acliial Government, pp. 39-53.
CHAPTER III
Principles of the Constitution
A POLITICAL constitution may be defined as " that whereby
the instrumentalities and powers of government are distributed
and harmonized." ' It may be written and contained in a single
document as in the United Slates; or it may be written and be
embodied in a number of constitutional acts as in France ; or
it may be unwritten, being made up of a number of customs,
understandings, precedents, legislative acts, as in England. It
is important, particularly for the American student, to grasp the
full significance of the definition given. The natural tendency
of the American is to assume that a true constitution must l)e in
a definite written form. Nothing could be farther from the
truth, for a living constitution cannot be confined to a written
document. Anything, written or unwritten, that creates or
establishes the instrumentalities of government and gives to
each its {jowers and harmonizes the.se agencies in the exerci.se
of their powers is a constitution. Whether a written constitu-
tion is more .sacred or more binding upon the people than is an
unwritten constitution depends altogether upon the people's
state of mind and attitude towards it. The Constitution of
England is no less venerated by the people of England than is the
federal Constitution by the people of the United States.
The statement was just made that a living constitution cannot
be confinefl to a written document. This is a fact of jjrofound
importance in the study of government, f<»r no (ine can obtain
an aflef|uaN* uiulerstanding of the working of a government who
confines his clTort to a study of its structure as outlined in the
written constitution. The actual working constitnlion of the
United States, for instance, is not at all the same as the written
Constitution framed by the convent ion of 17.H7. It has been
' Mncy, " The EnRJish Constitution, " p. 6.
22
PRINCIPLES OF THE CONSTITUTION 23
changed in many vital respects by court interpretations, by cus-
tom, and by the development of extra-constitutional institutions.
Government must be studied in operation, as a " going concern,"
to be understood. The constitution is and must ever be, — to
use President Wilson's apt phrase — a " vehicle of life." The
functioning of the organs of government set up by the written
Constitution, as well as their structure, must be comprehended
before one can lay claim to anything that approaches an under-
standing of the real constitution of a country. Constitutions,
governments, are living, changing things. They must adjust
themselves to the ever shifting conditions of life if they are to
be truly effective instruments of political and social progress.
The United States a Federal Republic. — The constitutional
system of the United States is built upon a number of fundamen-
tal principles, as contained in the written Constitution, which it is
necessary for the student to understand.
In the first place the government of the United States is a
republic. The " fathers " of the Constitution did not intend it
to be a democracy. They were determined not to have a
monarchy ; but in avoiding the dangers of monarchy they did
not intend to run into the pitfalls of democracy. However
democratic may be the tendencies of the present day, the in-
tention of the framsfs of the Constitution is plain. They were
not thoroughgoing democrats by any means. They wanted a
republic and that is what they established. A republic is a
government in which the power is exercised by the people
through chosen representatives. The people are the source
of power, but they do not rule directly. They and their repre-
sentatives alike are restrained by constitutional provisions.
This was the only kind of government which the framers of the
Constitution believed to be safe. Their view was well expressed
by James Madison : " We may define a republic to be a govern-
ment which derives all its power directly or indirectly from the
great body of the people ; and is administered by persons holding
their offices during pleasure, for a limited period, or during good
behavior. It is essential to such a government that it be derived
from the great body of the society, not from an inconsiderable
proportion, or a favored class of it. It is sufficient for such a
government that the persons administering it be appointed,
either directly or indirectly, by the people; and that they hold
24 co.Mi'AR.vrn i: free goverxmext
their appointments by cillur ol the tenures just specified. "'
The government which Madison described, and which he and
his associates established, is thus a republic of the democratic
type. It rests upon the will of the people, but the people can
express their will only through regularly chosen rei)rescntativcs
who are subject to constitutional restrictions. In the course of
the years the democratic clement in the control of the govern-
ment has undoubtedly become stronger. Particularly in recent
years has the movement toward direct democracy within the
States made raj^id progress. The tendency at present is clearly
in the direction of a larger direct participation of the people in
the control of both State and National governments.
Not only is the government of the United Stales a republic,
but it is a federal rejiublic. It is not a centralized republic like
France, in which all powers are lodged in the national authority,
but it is a federation of States in which the powers of govern-
ment are divided between the central organization and the
organizations of the States that form the federation. Refer-
ence has already been made to the fact that the federal form
was determined by conditions. No other form was possible
and no other was seriously thought of by the constitutional
convention. The absolutely underlying principle of the con-
stitutional system of the Tnited Slates is the principle of fed-
eralism. The great contrilnition which the L'nited States has
made and is making to the political e.xpericnce of the world is
its demonstration of the fact that federalism can be successful,
both from the standpoint of stale autonomy and national
efluiency. It is, indeed, furnishing to the w»)rld a model, per-
haps the model, for the great world state of the future. -
Separation of Powers. Probably no theory of gox-ernnn-nt
was more widi-l\' acce|)tefl by the people of the States at the
time the Constitution was adopted th.in the theory of the sej)-
ar.'ition of jjowers. .\alurally, tluii, tliis theory is one of the
fundamentals of the Constitution, it was impossible to organ-
ize the central government on an\- otiier basis. '!"he general
belief was that the separation of powers is essential to liberty.
'! hat inrjividual liberty could be preser\'ed under a government
in whi( li the legislative an<l executive |)owers were lodged in
' Thr fcderaihl, No. 39. ' Itclow. Chap. LX.
PRINCIPLES OF THE CONSTITUTION 2 5
the same hands is a theory of government which the constitu-
tion makers and the people generally did not believe. It must
be remembered that the English Constitution as it is to-day,
with its guaranties of individual liberty, had not then developed.
The theory of the separation of powers is easily stated.
There are three great functions of government, — ■ legislative,
executive, and judicial. The powers to discharge these functions
should be lodged in different departments. Each department
should be supreme in its own sphere of action. Each is co-
ordinate with the others and as far as practicable should be
independent of them. Each, therefore, is confined in its work
to the exercise of the powers that have been specifically given
to it. If it steps beyond the limit set by the constitution into
the field of another department, its acts are void. Only by
separating the powers of government in this way, and as far
as possible keeping them separate, can the liberties of the
people be adequately protected. To keep the departments
separate each must be hedged about with definite constitutional
restrictions. The more completely this separation can be
maintained, the safer will be the people in the enjoyment of
their civil and political rights.
The wide acceptance of this theory is generally ascribed to
the intluence of the great French writer, Montesquieu. He
was by no means the first to differentiate the functions of
government, but he expressed the theory of the separation of
powers in its modern form and insisted strongly that there can
be no liberty if the legislative and executive powers are united
in the same person. The judicial power, also, must be separated
from the other two. " There would be an end of everything,"
Montesquieu says, if the same person or the same body were
to exercise the three powers of government.^ The book in
which he formulated his theory was widely read in America as
well as in Europe, and, there can be no doubt, had influence
upon the thought of the colonists. This influence was doubly
great because of the frequent conflicts which had arisen in the
Colonies between the legislative and executive authorities, and
because the powers of the colonial governments were more or
less definitely separated in accordance with this theory. Thus
Montesquieu's influence wa;s reenforced by that of actual colonial
1 Montesquieu, " The Spirit of the Laws," Book XI, Chap. 6.
26 C0MPARAT1\'E VREV. GOVERNMENT
practices. To this combined influence of colonial experience
and of Montesquieu's philosophy was added, when the time
came for the establishment of the new federal government, the
fear of monarchy. The framers of the Constitution believed,
as did their fellow citizens, that the danger of monarchy would
be lessened by a clean-cut separation of the departments and
by keeping them separated by rigid constitutional provisions.
It is plain that the theory in its full, extreme form is an
unworkable theory. It cannot be put into operation. There
can be no complete separation of the departments. They
must come together at certain points or the governmental
machine will not work. There is bound to be more or less
overlapping in their functions. Indeed, no attempt is made in
the Constitution to carry out the theory in its extreme form.
Some of its limitations were recognized by the men who drafted
the Constitution and, although in the main the theory was
applied, a number of exceptions to it were made. A careful
reading of the Constitution will reveal how greatly the theory
was modified as it was actually applied. Each department
shares more or less the powers that belong to the others. The
President, to whom is given the executive power, shares in the
exercise of legislative power through his right to recommend
and to veto legislation anfl through his |)ower to establish
regulations by executive order that ha\e the force of law.
Congress, through its power over revenue and expenditures
and through its power to create new administrative depart-
ments and to reorganize or destroy existing (lei)artments., exer-
cises large control over the executive. Through its absolute
control over the federal courts below the Supreme Court and
through its right to pass ujxjn the qualilications of judges,
(Congress exercises a vital influence upon the work of the courts.
The Senate, particularly, breaks over into the fields of the
executive and judicial authorities. In the confirmation of
appointments and the ratifKation of treaties it shares directly
in the executive power. In hearing impeachment cases it
sits as a court and exercises directly the judicial fun( tion. The
courts, in turn, control in a direct way the work of Congress
through their right to interpret the laws :ind (he Constitution
and to fleclare arts of Congress invalid. The latter really
amounts to a judicial veto. So it is clear that the separation
PRINCIPLES OF THE CONSTITUTION 27
of the departments by the Constitution is by no means complete.
A study of the national history will reveal, also, that that
separation has grown less distinct with the development of
the years.
The separation theory has been subjected to a good deal of
adverse criticism from time to time, particularly in recent
years. It is charged against it that it divides the responsibility
for the conduct of the government to such an extent that in-
efficiency and corruption result ; that it causes lack of harmony
and unnecessary friction in the working of the government;
that it frequently causes costly delay when prompt action is
desirable ; that it is primarily responsible for the development
of the vast and complex party organizations with all of the
attendant evils; that it is not essential to a free government
and that it " altogether works for confusion and obscurity
instead of simplicity and efficiency." ^
There is a good deal in these criticisms. Most assuredly the
theory breaks down completely in its assumption that without
a separation of powers liberty cannot exist. One need take
only a glance at the working of the EngHsh government to see
how fallacious the theory is in this respect. Moreover, it has
been the cause of a great deal of friction between the legislative
and executive departments in the course of the years, to the
sacrifice of the highest efficiency in the government. The
Supreme Court, through its interpretations of the Constitution,
has sometimes overthrown acts of Congress which the Congress
and the people generally have thought desirable; as, for in-
stance, the decision upon the income tax law of 1894. Because
of the divided responsibility it has frequently been impossible
to fix the blame definitely for objectionable acts as well as for
failure to act; and definiteness of responsibihty is essential
in a free government. The relation of the separation of powers
to the party .system will be discussed in a later chapter, but
note should be taken here of the dangers and difficulties which
are attendant upon a deadlock between the executive and legis-
lative departments when the President is controlled by one
party and Congress by the other. Under those conditions no
advance can be made so far as progressive, constructive legis-
lation upon controversial questions is concerned. Such delay
1 Beard, " American Government and Politics," New and Revised Edition, p. 155.
28 CUMrARATU !•: IRKK (■.( )\ l.RX.MKNT
may mean serious loss to the nation. Hence it is jilain that
there are valid criticisms to be made of the separation theory.
But there are some things to be said for the separation of
powers as well ; it is by no means all bad. There are some solid
virtues in an executive that is independent of the legislature.
In fact, in the go\ernment of a people with the political tra-
ditions, training, and habits of the American people, an executive
under the control of the legislature, as in the cabinet system of
government, would probably be impossible. Particularly im-
portant is it to have the judicial authority beyond the absolute
control of the legislature. Courts that are subservient to any
particular interest within the state are contrary to American
traditions, if not actually opposed to the sj^irit of American
institutions. And the form of any government or of any part
of it must be judged in connection with the spirit and traditions
of the people over whom it rules. Moreover, there are practical
reasons why the doctrine of the separation of powers is not to
be rejected entirely. It has within it sound principles. " In
government, as in all highly developed organizations, differen-
tiation of function and division of laljor are essential. Different
requisites are demanded for different duties, and efTiciency is
secured by specialization. It is therefore desirable that legis-
lative, executive, and judicial functions should in general be
exercised by separate organs, and that within these further
subdivisions be made." ' Jiut the jjrimary reason, of course,
why the separated departments are better for the United States
is found in the accumulated political exi)erience and the state
of mind of the .Vmerican people. .\n executive that is respon-
sible to the legislature e[)itomizes English political history;
but in America separation of the dej)artments in the main is
of the very stuff of free government. An increa.sing dissatis-
faction with the working of the theory is to be noted, however,
anrl it may well be that still further modifications will occur;
bul its abandonment is not to be anticipated, notwithstanding
the growing inllticiKe of the executive in legislation.
Checks and Balances. — The separation of the dc'|)arlnu'nts
of government involves necessarily a complicated system of
checks and balances. The intention was not sinipl\' to sc|)arate
the departments, but l(t kci-p them scpMiatcd in tin ir functions
' (icttcli. " Iiilro<liiiti')n t(i I'olitital .Sticnec, " pp. i2j-22ii.
PRINCIPLES OF THE CONSTITUTION 29
as far as possible. This means that not only were limits es-
tablished beyond which the departments should not go, but
that each has been given certain powers by which it is definitely
to restrain the others from exceeding their constitutional au-
thority. Congress has the power of impeachment and may
withhold supplies from the executive. The Senate may check
the President in the matter of appointments and in the exercise
of the treaty-making power. The President has the veto power
over acts of Congress and appoints the judges. The courts
may pass upon the validity of acts of Congress and by inter-
pretation of the Constitution and the laws restrain both the
legislature and the executive. The departments are inde-
pendent in the main, but are nevertheless dove-tailed together
in such a way as to make each dependent on the others in vital
respects. The Constitution establishes a balance of powers
and makes it the duty of each department to help maintain that
balance. This constitutional provision is of course reenforced
by the natural desire of each department to prevent encroach-
ment upon its powers. Thus self-interest combines with moral
and legal obligations to maintain the constitutional adjustment.
Some kind of system of checks and balances is inevitable in
every free government. Indeed, it may be said to be a sine qua
non of free government. Restraints of some kind there must
be upon governmental authority. The peculiarity of the
system of checks and balances in the United States which
differentiates it so fundamentally from the system provided by
the English Constitution is that the former is a vast system of
legally established checks which may be enforced by the courts,
while the latter is a limited system of checks and balances which
rests partly upon legal provisions and partly upon traditions,
habits, and understandings which can only be enforced by an
appeal to public opinion.^ The results are the same, but the
methods are vitally different. In each country there is a
harmonizing and balancing of powers. In the one this is
accomplished chiefly by the provisions of the written Constitu-
tion; in the other by the understandings of the unwritten
Constitution. It should be noted, however, that not all of
the checks that are operative in the United States are contained
in the Constitution. The party system furnishes a positive
iMacy, "The English Constitution," p. 35.
30 COMPARATINI-: IREE GOVERNMENT
check of great potency, but the party system is entirely outside
the Constitution. This influence is seen particularly when
the executive and legislative branches are controlled by oppos-
ing parties. Public opinion is likewise, as in England, a power-
ful restraining influence, but public opinion is not the creation
of the Constitution.
RKI-EREXCES
Bryci;. Tlic American Commomicalth, Edition 1910, \'ol. I, Chaps. I\',
XXIX, XXX.
Ford. The Rise and Growth of American Politics, Chaps. II, III, I\'.
GooDNOw. The Principles of the Administrative Law of the United States,
Book I, Chaps. Ill, IV.
Mkrriam. American Political Theories, Chaps. II, III, IV.
Smith. The Spirit of American Government, Chaps. II, III.
WooDBURN. Tiie American Republic, Chap. I.
I
CHAPTER IV
The Presidency
The presidency is one of the greatest political offices in the
world. No official in any of the other free governments has so
much power as the occupant of the presidency in the United
States. The English prime minister alone, perhaps, is to be
compared with him. In the great dignity, power, and influence
of the presidency is found one of the striking features of the
American constitutional system. Its place in the government,
under the political party regime that has developed, is not exactly
what the framers of the Constitution intended it should be ;
its occupant does not bear the precise relationship to the legis-
lative department that was expected, nor does he show that
independence of popular control which was thought so necessary ;
it has not always been held by men who, in point of ability or
temperament, have measured up to the high requirements set
by its creators for such an exalted position ; but, notwithstand-
ing the valid criticisms that may be made of it or of the men
who have held it, the presidency has proven a notable success
as an institution of government. It has stood the test of ex-
perience and is stronger to-day than at any previous time in the
Nation's history, with the exception of the Civil War period
when the normal balance of the government was destroyed.
No other part of the governmental system is looked upon by
the common people with more satisfaction than the presidency.
Fearful concerning it as the people generally were in the be-
ginning, it now belongs to them and to it they look more and
more as a means of accomplishing their purposes in the field of
national politics.
Fluctuations in the Presidency's Influence. — The presidency,
as a determining force in the Nation's politics, has had its ups
and downs. Its influence has varied from time to time, some-
times greater, sometimes less, depending upon the characters
31
32 COMPARATIVE FREE GOVERN]\Ii:XT
and personalities of the men who have held it, and the political
conditions and problems that confronted it. The history of
the presidency naturally breaks up into a number of distinct
periods, of which separate accounts should be taken, as Presi-
dent Woodrow Wilson suggests. The thought of this eminent
writer, partly in his own words, is here given. ^
The first period extends from 1789 to 1825 during which the
government was establishing itself at home and gaining recog-
nition abroad. In this period men were chosen to the presidency
who were trained to an unusual degree for the leadership of
the Nation. The second period is that in which the headstrong,
imperious Jackson forced his will upon the Nation, regardless
of legal or constitutional refinements. The third jieriod may
be said to date from 1836 to 1861, during which great questions
of domestic policy were fought out and Congress assumed the
dominant place. In this period the Presidents " lacked the
personal force and initiative to make for themselves a leading
place in counsel." The fourth i)eriod is the time of the Civil
War in which for a time under Lincoln the presidency became
almost a dictatorship, " Congress merely voting supplies and
assenting to necessary laws, as Parliament did in the time of
the Tudors." The fifth period extends from 1865 to iSgS,
during which domestic questions were again to the front and
Congress was in the ascendancy, President Cleveland alone
among the Presidents of this period taking any " leading and
decisive part in the drama of national life." The war with
Spain in i8q8 marked the beginning of the sixth and present
period in which there has been a shifting of positions and powers
and the President again has become the national leader. In
recent years the presidency has been the most conspicuous part
of the government and its occui)ant has had centered upon him
the attention of the entire nation. It is not at all unlikely that
the presidency will (ontiniic to hold pi rniaiicntly a relatively
larger place in the government than it fornuTly did. The
exigencies of party politics seem to demand aggressive leailn-
shi|) on ihc part of llic President.
The Constitution Makers and the Presidency. The organi-
zation of the executive de[)artment of the government furnished
one of the most i)U/-zling [)rol)lems which the makers of the
' Wilsnn. "Constitutional Government in the Ignited Stufes," pp. 57-50.
THE PRESIDENCY 33
Constitution had to solve. No other part of their work gave
them more concern than this, and no other was considered with
greater care. Widely different views as to the character of the
executive and the extent of its powers were held and expressed,
and it was only after many concessions had been made by the
opposing elements in the convention that the plan for the
presidency, as contained in the Constitution, was agreed upon.
Like all of the other important features of the Constitution,
the executive organization which was finally accepted was the
product of compromise.
On one thing, however, the constitutional convention was
unanimous from the start. The executive must have sufficient
power to make it an effective agency of government. The
impotency of the Congress under the Articles of Confederation
must be avoided. On the other hand, the power of the execu-
tive must be so hmited and its exercise so hedged about by re-
strictions that all danger of monarchy would be averted. But
just how should this be accomphshed? Should the executive
power be lodged with one person or with several ; should there
be a single or a plural executive ? Should the person or persons
exercising the executive powers be dependent directly upon the
people for the commission of authority or should the executive
be chosen by indirect methods? Should Congress, the legis-
lative branch of the government, be given the power to choose
the executive and thus make the executive dependent upon the
legislature? If a single executive were estabUshed, should there
be provided a privy council in addition to act as an advisory
and restraining body ? These were questions of vital importance
and were considered with care and debated with vigor.
An early agreement was reached in favor of a single executive
in place of the plural executive which was urged so strongly by
some members of the convention. There were historical prec-
edents for the plural form and plausible arguments were
advanced in support of it, but the majority of the convention
felt that unity and promptness of action, and therefore effective-
ness, might be destroyed if the executive powers were divided
among the members of a council. The dangers of too great
centralization of power in one individual might better be risked
than impotency and indecisiveness at critical times through
too much diffusion of power. So the single executive was
D
34 COMPARATIVE FREE GOVERNMENT
decided upon. In reaching this conclusion the men of the
convention were chiefly influenced by the experience of the
States with their governors, some of whom bore the title of
president. The people were accustomed to the exercise of the
chief executive power by a single individual. Thus the es-
tablishment of the presidency to be held by one man was quite
in accord with American experience and seemed to involve no
inherent risk of executive usurpation which would result in
monarchy.
The amount of power that the executive should have was a
different matter, however, and gave cause for a great deal of
vigorous discussion. Should the executive be independent of
the legislature or not? If independent, should it have power
to negative or veto acts of the legislature? Should power over
the questions of peace and war be lodged with the executive?
Would the exercise of such power be likely to lead to the over-
throw of the republic and the establishment of monarchy?
How much control over the judiciary should the executive have?
Should it have the power of appointment and removal of officers?
What control should the executive have over legislation ? Should
it be confined entirely to the work of executing the laws passed
by the legislature? These and many other questions of similar
import were asked and thoroughly discussed by the convention.
The answer to them was the creation of an office that had no
counterpart in any of the then existing nations of the world.
This is not the place to give in detail the powers that were con-
ferred upon the President ; the present purpose is simply to
indicate the nature of the problem with which the convention
wrestled in determining the organization and authority of the
executive fieparlment. The decision of the convention was that
the executi\e should have large powers over both domestic and
foreign affairs and that in the exercise of its powers it should
be independent of both the legislative and judicial departments.
It was made coorrjinatc with the other departments and was
not to be bound by the restraining influence of an advisory
council, cxcejjt with regard to treaties and appointments to
office, in which the Senate was to have its share.
The Presidency a Democratic Institution. — The ever present
fear in the minds of great numbers of people at the time the
Constitution was being formulated by the convention and
THE PRESIDENCY 35
later when it was presented to the States for ratification, was
the fear of monarchy. The estabhshment of a monarchic
government was the one thing of all things to be prevented.
Any feature of the new government, therefore, that might ap-
pear to be in contravention of the prevailing antimonarchic
sentiment was certain to be the subject of bitter, denunciatory
criticisms. The presidency came in for its full share of this
hostile comment. It was suggested in the constitutional con-
vention that the executive department, as finally established by
the constitution, savored of monarchy and that the President,
through his power of appointment and his control of the army
and navy and his independence of the legislative department,
might be able to subvert the republic and turn himself into a
king. This view was repeated again and again when the
Constitution was submitted for ratification. It is very ques-
tionable, indeed, whether ratification could ever have been
obtained if the people had voted upon the Constitution directly.
Even as it was, with the ratification left to conventions within
the States, almost a year passed before favorable action by
nine States, necessary to put the Constitution into force, could
be brought about. There can be no doubt that much of the
hesitancy was due to the dissatisfaction that was felt concern-
ing the organization and the powers of the presidency. And
yet this widely prevalent fear as to the dangers inherent in the
presidency was groundless, as the whole history of the United
States under the Constitution has so clearly shown.
Instead of becoming monarchic in character the presidency
has become more democratic with the passing of the years, far
more democratic, in fact, than the framers of the Constitution
ever intended that it should be. Under the party system it
has become the chief agency for the execution of the popular
will. Although it was not intended to be so, the President's
responsibility is now directly to the people, and it is to him that
they look, more than to any other officer or department of the
government, as the champion of their rights and interests.
It is the President, more than any other, who is the spokesman
of the people. Democracy is stronger, not weaker, because of
the presidency. Curiously enough, however, it was not the
intention of the framers of the Constitution to promote democ-
racy through the presidency. They did not believe very much
36 COMPAR.\TT\F. FREE GOVERXMKXT
in democracy, even the most democratic of them. They were
almost as anxious to prev^cnt the President from becoming too
dependent on the masses as they were to prevent him from
transforming himself into a monarch. That is why they re-
jected the plan to have him chosen directly by the people and
provided for his indirect election by presidential electors.
Contrary to the commonly expressed fear the presidency has
never endangered the Republic ; and contrary to the intention
of the fathers it has become directly dependent upon and re-
sponsible to the people themselves.
The presidency is the distinctive feature of the L'nited States
government. It gives name, indeed, to that type of free gov-
ernment of which the United States is the most notable example,
ditlerentiating it from the cabinet or parliamentary type. It
stands as one of the great, vital contributions of the United
States to the science of government. Its occupant does not
hold merely an ornamental position, useful only in a social way,
but is the real head of the Nation with powers and res[XMisibili-
ties greater than are those of monarchs in the Old-World coun-
tries. The way in which he is elevated to his high jjosition by
the votes of his fellow citizens, and the way in which, after his
term of office has expired and his successor has been chosen, he
retires to the seclusion of private life, shorn of his jjower and on
a perfect legal equality with all those whom he has served,
furnish striking evidence of the strength and merit of the presi-
dency as an instrument of democracy. The President in olTice
is simply the servant of the people; the President retired from
office is simply one of the jjcople. His usefulness to the State
after retirement, however, is by no means at an end if he chooses
to interest himself actively in public alTairs, but his work is
that of a private citizen unless by the action of his fellows he
is again called to the |)ublic service.
Of course the presidency is not a perfect institution of govern-
ment. Vali«l criticisms may he made of it and of the way in
which it often works. It is po.ssible that liif (klails of its or-
ganization as worker! out in the Constitulioii might be improved.
Il is, indeed, a great prize which stirs the ambitions of men and
often leads them to .sacrifice convictions and consistent conduct
in order to obtain an election or a rt-i-lection. It does offer
opportunities for the corrupt use o{ power. The four years'
THE PRESIDENCY 37
term is possibly too short and the reeligibility of the President
may invite and sometimes does lead to manipulation and
scheming, to obtain a reelection, which are seriously detri-
mental to the public interest.^ But perfect political institu-
tions are not found in this world of imperfect men, and, in spite
of all the criticisms that have been made against it, the presi-
dency has been a conspicuously successful part of the federal
government. Its merits are by no means offset by its demerits ;
its strength by its weakness. Although in operation it differs
radically in some respects from the original intention, the presi-
dency stands as a monument to the wisdom and statesmanship
of the men who planned it and established it. And its success
has been so marked that it has been taken as a model for the
executive organizations in most of the other Republican states
of the New World.
REFERENCES
(For References, see the following chapter.)
1 Br>'ce, "The American Commonweahh," New and Revised Edition, Vol. I,
pp. 69-71.
OiAJi-4 .
CIL^PTER V
The Election of the President
The evidence that the working constitution of the United
States is radically dillterent from the written document upon
which its governmental institutions are based, is perhaps
clearer in connection with the presidential office than with any
other part of the government. In form the presidency is still
what it was planned to be ; in spirit it is not. The intention
of its originators with regard to the manner of election, dej)end-
ence upon the people, and freedom from partisanship has not
been followed. With the exception of George Washington no
President has been chosen in the spirit and according to the
real intention of the men who drafterl the Constitution. More-
over, Washington alone of the Presidents conducted the office
in the way originally planned. In a sense the oflice was created
for Washington ; that is, he was the man whom the great
majority of people considered almost ideally filled for the place
and wh(jm they expected to see made the first President. It
seems to be clear that the men of the convention were inlluenced
in working out the organization of the executive i)\- tin- belief
that Washington was the man who would be given the leader-
ship in the actual work of .selling up the new government. He
presided over the convention and thoroughly understood and
approved the convention's intention concerning the purpose of
the presidential (jffice. lUit the jhKciiI of |)olilical i)arties and
the development of the party system (hanged the \ery character
of the office, and some of the things that the men of the con-
vention dreaded and ho|)ed to |)re\(nl are now expet hd and
held to be essential.
The |)urpose of the (DiiNcnlioii is (Icar. The i'resiik-nt was
fo be the bi-si tilled man for the plaic in I he entire Nation,
from the standpoints of ability, diaractc-r, temp( lament , and
training. He was to be free from partisanshi|), impartial, of
THE ELECTION OF THE PRESIDENT 39
national vision, loyal to all of the States alike, devoted to the
highest interests of the Nation. He was not to be the represent-
ative of a group or a faction, or a party, but the leader and
representative of the whole people. By his very qualities of
character he was to be above factional strife and above par-
ticipation in political intrigues of any kind. His one, undivided
aim would be, without thought of himself or of any State or of
any class, to promote the welfare of all the people.
In order to insure the choice of such a man for the presidency
a special plan for his election was devised. The choice of the
President, as Alexander Hamilton argued in The Federalist,
was not made to " depend on pre-existing bodies of men, who
might be tampered with beforehand to prostitute their votes,"
but was referred " in the first instance to an immediate act of
the people of America, to be exerted in the choice of persons for
the temporary and sole purpose of making the appointment." ^
That is, provision was made for a special body, which has come
to be known as the electoral college, whose sole duty it should
be to select the President. To make sure that no one should
take part in this selection who might have a personal interest
in the choice, it was provided that no Senator, Representative,
or other person holding a place of trust or profit under the
United States should serve as a presidential elector. " Thus,
without corrupting the body of the people, the immediate
agents in the election will at least enter upon the task, free from
any sinister bias."
Constitutional Plan of Choosing the President. — Thus the
choice of a President, according to the Constitution, is made
only indirectly by the people. Each State is required to choose
a number of electors equal to the number of its Senators and
Representatives in the national Congress. These electors
meet in their respective States, at the time prescribed by Con-
gress, and vote by ballot for President and Vice President.
Under the original provision they were to vote for two persons
and the one receiving the highest number of votes, provided
he had a majority of the whole number of electors, was elected
President, and the one having the next highest number of votes
was elected Vice President. But experience, after the political
parties sprang up, showed that this provision would not work
» The Federalist, No. 68.
40 COMPARATWE FREE GOVERNMENT
because the party controlling the majority in the electoral
college would cast the same number of votes for its two candi-
dates and neither could be declared elected President or Vice
President, as was the case in the election of 1800 in which
Thomas Jetlerson and Aaron Burr were candidates. This
provision of the Constitution was changed by the twelfth amend-
ment by which the electors vote definitely for a President
and a Vice President. The record of the vote in each State is
certified in the proper way and sent to Washington, addressed
to the president of the Senate. In the presence of both houses
of Congress the votes are counted and the candidate for
President and the candidate for Vice President having the
highest number of votes are declared elected, if in each case this
number is a majority of the whole number of electors. If no
candidate for President has a majority, the choice goes to the
House of Representatives, where the candidates having the
highest votes, not exceeding three in number, are balloted
u[)on, the vote being taken by States. Each State has one vote
and a majority of all of the States is necessary for an election.
In case no candidate for V^ice President receives a majority of
all the electors the choice goes to the Senate where from the
two highest candidates the selection is made, a majority of the
whole number of Senators being necessary for a choice.
The method of choosing the presidential electors is left to
the States, acting through their legislatures. The selection may
be made by the Slate legislatures themselves, i)y popular vote,
or by any other methofl which the legislatures may prescribe.
The time of the election is fixed by Congress. Hut, regardless
of the way in which they are chosen, the whole legal, constitu-
tional power to elect the President rests with the college of
electors. Kach elector is free, as far as the written Constitution
is concerned, to vote for whomsoever he pleases. Indi-ed, that
is what he is expected to do according to the |)l;m of the fathers.
It was by means of this picked body oi presidential electors that
they hopefl to obtain the one man in the entire nation best
fitted for the ofiice of President. It was the intention that
these men should meet at designated places in their respective
Stales and there, free from personal considerations, factional
strifes, party influence, and popular clamor pick out the man
most i)erfectly ef|ui|)|)ed in every way for the high ofllce of
THE ELECTION OF THE PRESIDENT 41
President. The framers of the Constitution felt certain that
with this system of indirect election in operation no unfit person
would ever become the head of the Nation. Hamilton, arguing
for the ratification of the Constitution, expressed his opinion in
this way : " This process of election affords a moral certainty,
that the office of President will seldom fall to the lot of any
man who is not in an eminent degree endowed with the requi-
site qualifications. Talents for low intrigue, and the little arts
of popularity, may alone suffice to elevate a man to the first
honors of a single State ; but it will require other talents, and a
different kind of merit, to estabhsh him in the esteem and
confidence of the whole Union, or of so considerable a portion of
it, as would be necessary to make him a successful candidate for
the distinguished office of President of the United States.
It will not be too strong to say, that there will be a constant
probability of seeing the station filled by characters pre-eminent
for abiUty and virtue." ^
Hamilton in this statement expressed the view of the majority
of his associates in the constitutional convention. They were
not all of one opinion as to the wisdom of having a single ex-
ecutive with such great powers as were given to the President,
but they finally agreed that if there was to be such a President,
the method prescribed for his election was the very best that
could be devised. The dangers that might lurk in the organ-
ization of the presidency would be minimized by the manner
of electing those who were to hold it. Particularly would it
be impossible for men to get into the presidency by currying
favor with the masses. The danger of too much democracy
in the selection of the President would be averted.
Failure of the Electoral Plan. — But how has the plan worked ?
How successful has it been? How accurately did its sponsors
foresee the developments of American politics? Except in the
case of Washington it has not worked at all as it was intended.
It was the first part of the Constitution to break down ; and
the collapse was strikingly complete. It is significant in this
connection that the plan of electing the President was one of
the few features of the Constitution that was practically original
with the constitutional convention. In almost all respects
the Constitution is built on solid experience, but the electoral
' The Federalist, No. 68.
42 COMPARATRE FREE GOVERNMENT
college was an experiment. Ihal this experimental feature
of the Constitution was the first to fall is illustrative of the
dangers that confront any people who seek to erect their gov-
ernmental system upon untried theories.
The reason for the failure of the electoral college to work
according to design is easy to find. The strange thing is that
the men who planned it did not foresee the inevitable result.
The development of political parties made the plan impossible.
When Washington retired at the end of his second term the
party sj)irit Ijlazed out and the Federalist and Democratic-
Republican parties were formed. Each party had its candi-
dates for President and Vice President and expected its repre-
sentatives in the electoral college to vote for their party nominees.
The moment it was settled that Washington would not consent
to a third election it was plain that his successor would not be
chosen by the electors in that calm, dispassionate manner con-
templated by the framers of the Constitution because of his
special fitness for the presidential office, but that he would be
chosen as a party man Ijecause his i)arty controlled a majority
of the electoral votes. The organization of parties, for reasons
that will be considered later, was inevitable. All through the
eight years of Washington's administration the division of the
people into two opjwsing {)arlies was taking place. As the years
I)assed, the line of separation became more marked, one side
tending more and more to favor the exercise of wide ])owers by
the central or national government, and the other side standing
out as the champion of the States and local governments as
against the Nation. This division of ojiinion upon the inter-
j)relation of the C'onstitution began, indeed, in the constitu-
tional convention itself. It seems now that it should have been
clear to the men of the convention that |)oliti(al |)arlies would
inevitably result from the dilTcrtnc es of opinion manifested in
the constitutional debates; \>\\\ tliis was not the case an<l it
clearly was their hope that the I'resident would never be selet led
as a result of a parly struggle, luiually clear was their intention
to j)revent such a siruggli-, if f)ossible, by the establishment of
the electoral college. lUit their plan broke down almost at the
start anri from the lime of the election of |<il)ii Adams, in 1796,
tr) the present the Presirlenls, almost without exception, have
Ix'cn cho.sen as parly men and the ])residential electors have
THE ELECTION OF THE PRESIDENT 43
simply registered the will of their respective parties. The real
selection of the President, therefore, is made by the people of
the States at the election when they vote for electors, now called
the presidential election.
Actual Method of Choosing the President. — It is plain that
the method of choosing a President that has prevailed almost
from the beginning is not a part of the written Constitution.
It is one of the many extra-constitutional features of the United
States government. The important steps in the procedure that
is followed should be noted.
First of all is the selection of the party candidate, for no one
will receive electoral votes who is not the candidate of a party
with sufhcient strength to elect some of the presidential electors.
The choice of the presidential candidate of each party, under
the practice that has prevailed during the greater part of the
Nation's life, is made by a national convention composed of
delegates from all of the States and Territories. These con-
ventions are usually held in June or July of the year of the
presidential election. For months preceding, the chief political
interest of the nation centers upon the work of the nominating
conventions, and the selection of delegates by the different
States is followed with the closest attention. Sometimes there
may be only one leading candidate and he will receive the
nomination by acclamation, or if the opposition is strong enough
to prevent a nomination by acclamation, he may have sufficient
strength to be nominated upon the first ballot. Sometimes the
nomination is hotly contested by two or more candidates and
the nomination may come only after many ballots are taken
by the convention. And then it may go to some one who has
not been a leading aspirant ; indeed, it may go to some one who
has not been looked upon as a candidate at all, a so-called
" dark horse."
The national conventions of the leading parties are rightly
looked upon by the people generally as of vital concern. It is
there that the choice of the people, to be determined later at
the November election, is narrowed to two men, the candidates
of the two leading parties. One or the other, under the normal
working of the party system, unless removed by death, will
become President and will have it in his power to influence pro-
foundly the course of the Nation's history.
44 COMPAR VnVR FREE GOVERNMENT
As soon as the conventions have made their nominations,
the i)resi(lenlial election campaip;n l)egins. From the time the
conventions adjourn until the election in November the tight
is waged in all of the States, usually with increasing intensity
as the day of the election approaches. In all of the States
presidential electors must be chosen. As already indicated,
the method of choosing the electors is left to each State. The
regular rule now is for each political party by a party primary
or convention to nominate in each State candidates for all of
the electors to which that State is entitled. The voter at the
general election votes for those electors who represent the
party whose presidential candidate he favors. Under the pre-
vailing practice the voter does not vote for one elector only, but
for the entire number to which his State is entitled. The
electors are thus usually chosen by the general ticket system
and not by the district system, though this is a matter for the
States to determine. The voter does not vote directly for the
presidential candidate, of course ; he votes for one set of electors
and thus indicates his preference as to presidential candidates.
As soon as the results of the November election in the ditTercnt
States are ascertained the people know who is to be their ne.\t
President. Of course no legal election of a President has
occurred ; the voters of each State have simply declared their
preference. But the contest is at an end, although the legal
election is still to come, for the presidential electors will merely
carry out the instructions given to them by the voters of their
respective States. The electors observe the strict letter of the
Constitution and of the law as prescribed by Congress, but their
work is entirely perfunctory and without sj)ecial interest to the
general public, for every one knows in advance what the vote
in the electoral college will be. No elector would think of voting
against the candidate of his |)arty.
The general procedure which must be observed l)\' (he electors
is j)rescribed by the Constitution, as already indicated. De-
tails have been left to Congress and the State legislatures to
work out. By an act of Congress the electors of each Slate are
required to meet on the second Monday of January ne.xt fol-
lowing their election at whatever place has been designated by
the State legislature - always the State ca|)ital - for the
purpose of casting their ballots for President and Vice President.
THE ELECTION OF THE PRESIDENT 45
The manner in which the vote is to be certified and sent to the
president of the Senate at Washington, to be counted in the
presence of both houses of Congress has already been described.
This count takes place on the second Wednesday in February.
The significant thing to note is that the method of electing a
President contained in the Constitution has become, because
of the party system, a mere formality, the observance of which
is important only because such observance is necessary in order
to make the election legal.
Consequences and Dangers of the Electoral System. — The
working of the electoral college scheme in connection with the
prevailing party system has a number of important conse-
quences. The plan of the constitution makers has been set
aside and there has been substituted for it a general election in
which all of the voters of the country may take part, but this
election is not a truly popular election, although it is frequently
referred to as such. The election is really by States and the
outcome of the election is not determined by the result of the
popular election in the Nation as a whole ; that is to say, the
success of a candidate is not dependent upon his receiving a
majority of the total vote in the Nation. His success depends
upon his carrying enough States to give him a majority of the
presidential electors. But a candidate may receive a majority
of the electoral votes and have only a minority of the popular
vote. This has happened upon several occasions. Abraham
Lincoln, for instance, in i860, received only 1,866,452 votes,
while the combined vote of his opponents numbered 2,815,617.
Yet in the electoral college Lincoln had 57 more votes than all
of his opponents. In this case the votes opposed to Lincoln
were divided among a number of candidates. But even when
there are only two candidates it may happen that the one re-
ceiving a minority of the popular vote will obtain a majority
of the electoral votes because of the particular combination of
States that he carries. In 1888 Harrison received a hundred
thousand fewer votes than Cleveland, but had a majority of
sixty-five in the electoral college. This result springs from the
fact that the presidential electors are chosen on a general ticket,
and the total vote of a State in the electoral college goes to the
candidate that carries the State in the general election, no
matter how small may be his majority over his competitor.
46 COMPARATUH FREE r,OVi:RXMF:XT
Indeed, he may have only a plurality if there is a third candidate
with any considerable strength. In 1884 Cleveland carried
the State of New York over Blaine by a margin of only 114Q
votes. A change of only 575 votes from the Democratic to the
Republican candidate would have elected the latter. But the
entire electoral vote of the State went to Cleveland, giving
him the necessary majority. Majorities for Blaine in other
States, however large, could have no effect upon this result.
A small majority in a State at the presidential election is just
as effective in controlling the electoral vote of that State as is
a large majority.
Another result of very great significance comes from this
system. Since the election is really by States, the chief interest
in the presidential election centers in the " close " or " doubtful "
States. The decision in these States is likely to determine the
result in the Nation. The party that can carry the doubtful
States will probably win. The effect of this is not only to center
popular interest upon the struggle in these Slates, but to con-
centrate the efforts of the party managers. The States that
are " safe " or " sure," that is, the States that can be depended
upon to give their accustomed majority for the one party or
the other, receive comi)aratively little attention from the cam-
paign managers. In the doubtful States, however, the cam-
paign is waged with the greatest intensity, each j)arty struggling
to the utmost of its ])ower to carry enough of these to insure
the election of its candidate. They are invaded by an army
of speakers and deluged by a flood of campaign " literature."
Large sums of money are spent to " organize " the voters and
get out the vote. In short, the real fighting in the presidential
campaign takes place in these jjivotal States. The influeiue
of this is by no means .salutary. In fact, it is just the opposite-.
The prize at stake is so great that campaign managers and party
workers often make use of corrujjt means to accom[)lish their
purposes. The use of so much money, particularly, is objec-
tionable. It leads lo bribery and other disreputable practices.
The influence of it all is anything but good upon the life and
citizenship of the State. This practice of making the close
States bear the brunt of the campaign is inevitable, however, as
long as the [)resent method of electing the President prevails.
A truly [)opular election would of course remedy the difliculty
in large measure.
THE ELECTION OF THE PRESIDENT 47
That there are possible dangers to the country in connection
with the constitutional method of choosing the President is
clearly shown by the Hayes-Tilden controversy growing out of
the presidential election of 1876. Neither candidate had a
majority of the electoral votes unless votes from States in which
the charge of fraud was made were counted for him. In each
of the States in which fraud was charged there were two sets of
electors, each claiming to be the properly chosen electors.^
The difficult problem was to decide which votes should be
counted, a problem concerning which the Constitution is silent.
Yet some method for the settlement of the controversy had to
be discovered or serious danger to the Nation, perhaps war,
might ensue. The device hit upon by Congress which assumed
jurisdiction over the problem was a special electoral commission
which finally, by a strict party vote, recognized the claims of
the Repubhcan electors and thus gave the presidency to Hayes.
The crisis passed and the danger to the Union was averted, but
the experience revealed some of the serious defects of the elec-
toral plan. Ten years later, in 1887, Congress attempted to
remedy the difficulty by passing a statute which requires that
each State, through tribunals established for that purpose, shall
pass upon the legahty of its electoral votes. If a State fails
to provide for this special court, then the decision rests with
Congress, and, if the two houses cannot agree, the vote of the
State concerned is lost. This is doubtless better than no remedy
at all for the Constitution's omission, but it is plain that the
remedy itself is not free from defects and objections. The
decisions of the States might be anything but fair. Fraud can
easily enter in and determine the choice of the President. It is
quite possible under the law of 1887 for Congress to override
the will of a State or shut it out completely from participation
in the electoral college vote, and thus practically dictate the
selection of a President. The point would seem to be well
taken that the Constitution itself must be changed before the
dangers inherent in the present system will be removed.
Another omission of the Constitution in this connection is
deserving of notice. No way is provided for the selection of a
President in case the President-elect and the Vice President-
» The States involved were South Carolina, Florida, Louisiana, and Oregon. In
the case of Oregon the eharKC of fraud was not made.
48 COMPARATIXE FREE GOVERN^IENT
elect should die durinfi; ihc time that intervenes between the
second Monday in January when the electors meet and the
fourth of March when the President is inaugurated, a possibility
that is not at all fanciful. Of course if the successful candidates
should die at any time preceding the second Monday in January,
the electors could proceed to select a President and V'ice Pres-
ident according to the design of the Constitution. But if that
should happen after the electors have assembled and voted, the
problem is a very different one. Opinions differ as to what
could be done, but the belief seems to be growing that here is a
case of a real omission of the Constitution upon a vital point
which can be remedied only by a constitutional amendment.
Manifestly serious consequences may arise under the Constitu-
tion as it is at present.'
Suggested Reforms. — Various reforms in the method of
choosing the J'resident have been suggested from time to time.
The most important seeks to abolish the electoral college and
leave the election of the President to the people. It has been
a useless part of the governmental machine almost from the
beginning. Moreover, danger lurks within it. It was estab-
lishefl largely as a check upon the people, i)ut the rising tide
of democracy has swept it aside in spite of the Constitution,
although it still stands in the way of a genuine popular election.
As long as the college oi electors is retained, its members, under
the present party system, will probal)ly be chosen according to
the general-ticket plan. This means the continuation of a
practice which permits the election of a President by a minority
«)f the people and makes possible his election i)y actually fraudu-
lent votes. This is not t)nly undemocratic, but unsafe. In
the interest of democracy, therefore, as well as to avoid un-
neces.sary risks, the college of electors should be eliminated by
constitutional amendment and tlnre should be substituted in
' In (.ISC (lolli the I'risidfnl :in<l tin- \ i< «• I'rtMclriil should <lif. il is prnvidol in
the rrcsidcnti.-il Sucicssion Law, e-nndcd !)>■ ConKrcss in iH8f>, that mcmlxTs of ihc
<iit>inft shall siKcccd to the prisidrncy in the order prisi rilicd The order of sur-
ri-Hsion it as follows: Sc-i rct.in,' of State; Seirclary of (lie Treasiin,- ; Sccn-tary of
War; Attorney flrncral ; Postmaster Cieneral ; Sec retary of iheNavy; Secretary
of the Interior. At the lime the Sucression law was pass4'd, these were the cmly de-
partment* cxi<(tinK. The Se«retaries of the departments created since that time —
.Aicridiltiire, Commcrrc, and Labor have not lieen authori/.ed to succeed to the
ptesidency.
THE ELECTION OF THE PRESIDENT 49
its place a genuine popular election of the President which will
enable the majority of the voters to carry out their will.
There can be no question that the spirit and the purpose of
this reform are in accord with the sentiment of the present day.
There is a marked desire on the part of the people to democra-
tize all of the undemocratic features of the government. The
whole of the government must be brought closer to the source
of its power. The presidency, in particular, is so powerful a
poHtical office and holds so strategic a position in the govern-
mental structure that the people should control it directly by
voting directly for those who are to occupy it. Effective popular
control, moreover, should not be confined to the formal voting
process of the general presidential election, but should be ex-
tended so as to include the whole nominating process as well.
The mere opportunity to choose between two candidates who
have been nominated by small groups of men who are not
definitely, legally representative of the voters and who may be
dominated by poUtical bosses and controlled by political ma-
chines, is not sufficient to satisfy the demands of democracy nor
insure the election of a President who will truly represent the
will of the entire people as expressed by the electorate at the
polls. The whole nominating process, therefore, must also be
democratized.
The sentiment in favor of this reform has developed rapidly
in recent years and has assumed the form of a demand for a
presidential primary. The national conventions have never in
their entire membership been truly representative of the voters.
Some of the delegates, chosen at direct primaries or by repre-
sentative conventions in the States, have given true expression
to the will of their constituents, but many others have not
because they have been under the domination of political
bosses or party machines or some special business interests, or,
as has so frequently been the case, have been controlled by the
President in office through the use of patronage. The federal
office holders have been always much in evidence in the national
convention of the party in power. That this is not only unlair
but dangerous is a feeling that has been growing stronger year
by year. The result is the demand for a presidential primary
at which the voters, with all of the safeguards of a formal elec-
tion, shall determine what candidates their respective parlies
50 COMPAK ATIVIC I'REK COX'ERNMENT
shall pul forward. This particular method of nomination may
prove to be unsatisfactory, if it is adopted, but the demand
for it is significant. It is only a part of the broader movement
which seeks to place the presidency under genuine popular
control. It is as vital to this purpose to have popular control
over the nomination of candidates as to have popular election
after the nominations are made. As the indirect election of the
President, by means of a college of electors, has been swept
aside by the rising tide of democracy, so the present methods of
nominating presidential candidates, by means of which the
j)arty leaders and organizations are enabled to maintain their
control, must give way to other methods by which the power
over nominations is placed in the hands of the people. The
spirit of democracy is abroad in the land and will not now be
denied, even as it would not be denied in the beginning. In the
United States, as in England, the conviction grows stronger
year by year that the will of the people must prevail. In order
to make that will effective, readjustment in both constitutional
and extra-constitutional features of the government is necessary,
and is slowly taking place.
Attention should be called at this i)i)int to the constitutional
qualifications for an election to the jircsidency. Limitations
were placed upon the [)resi(lential electors so that their freedom
of choice is not absolute. No person e.xcejU a natural-born
citizen is now eligible to the oflice of President. Nor is any one
eligible who has not attained the age of thirty-five years and
been for fourteen years a resident within the United Stales. ( )ne
of the purposes of these restrictions was manifestly to minimize
the dangers of foreign inlluence and aggression. Men born in
the United States would be more likil\ to be free from the taint of
monarchy and therefore more devoted to republican institutions.
Presidential Term and Compensation. Tlic President's
term of office is four years, with no constitutional provision
whatever touching the question of reeligibility. 'I'his unusually
short term for .so important an oflice has l)een liu- subject of a
great deal of severe criticism. Hryce's adverse (omment is
l)arlicularly jjointed, l)Ul he is by no means alone in this; many
of the ablest American publicists find ihc provision e(|ually
objectionable. They hold with Hrycc iliat the presidential
election, coming so fretjuently, throws the (ountrx- into a state
THE ELECTION OF THE PRESIDENT 51
of turmoil and uncertainty for which there is often no real occa-
sion ; that this frequency of elections causes a discontinuity of
policy which is not only unnecessary, but often seriously detri-
mental to the nation's interests. It is held also that the fact
that a President is eligible for reelection often has an unfavorable
influence upon him; he is tempted to " play politics " in order
to obtain a renomination and thus sacrifice the good of the
Nation to his selfish ambitions.^ That there is merit in these
criticisms cannot well be questioned. There is good argument in
support of the theory that the term should be increased to six or
seven years and that the President should be ineligible for re-
election. It must be remembered, however, that there are
great benefits, from the standpoint of patriotism and citizen-
ship, which spring from these frequently recurring presidential
elections. There can be no doubt that they have profound
educational results. They give to the voters the opportunity
to take stock of what their representatives in office have done,
and force them to pass judgment upon the Nation's policies.
The value of this in any democratic government is not to be
questioned, although it is easy to place too much emphasis upon
it. Moreover, it should be added, a term of four years is more
than enough in the case of an inefficient or otherwise objection-
able President.
The Constitution places no limit upon the number of times
a President may be reelected. Tradition or custom, however,
fixes the limit at one reelection. Washington was importuned
to accept a third term, but refused, and from that time on the
two-term precedent has been observed, although there have been
attempts to break it, notably that in the case of General Grant
whose supporters made a vigorous and almost successful effort
to force his nomination for a third time. Thus far the " no
third term " tradition has held, even when the terms are not suc-
cessive, but it can hardly be said to be an absolutely settled
pohcy. It is doubtful, in fact, if the opposition to a third term is
as pronounced and widespread now as in former years. The
large vote cast for Theodore Roosevelt in 191 2 suggests a radical
change in the popular mind with respect to this.
The compensation of the President, by the terms of the Con-
' Bryce, " The American Commonwealth," New and Revised Edition, Vol. I,
pp. 69-72.
52 COMPARATn'K FREE GOVERNMKN'T
stitulicMi, is fixed by the Congress. His formal salary was made
$25,000 a year at the beginning. In 1S71 this was increased to
$50,000 and remained at that figure until 1909, when it was made
$75,000. This is simply the personal salary of the President
and by no means represents the total expense incurred in sup-
port of the presidency. The maintenance of the executive
offices with their large clerical force, the upkeep of the White
House and its grounds, the traveling expenses of the President
and various other items, bring the total exi)enditure up to
$:;oo,ooo or more.'
The Vice Presidency. — A word concerning the vice presi-
dency may be added here as appropriately as anywhere. It is
difficult, as a matter of fact, to find a logical place for a discus-
sion of the Vice President and his functions for the reason that
the constitutional position of the vice presidency is illogical.
It is, indeed, a misfit in the national governmental structure.
It is a practically useless office.
The Vice President is chosen for a term of four years in the
same manner as the President. He receives a salary of $12,000.
His part in the oi)eration of the government consists in presiding
over the .Senate, where he sits as a parliamentary official, exer-
cising no control over the deliberations of the Senate except
in the case of a tie vote, when the decision of the question rests
with him. The Constitution provides that in case of the
removal of the President from ofllce, or of his death, resignation,
or inability to discharge his functions, his powers and duties
shall devolve upon the Vice President. I'liat this is an impor-
tant [jrovision of the Constitution is ai)un(iantly proven by the
number of instances in which Vice Presidents have succeeded
to the presidency due to the death <>f the Presidents. The
Vice President as such does nothing but |)resi(le in theSniate
and has no official relation whatever to the Presidtiil. The
President may consult with him if he wishes to, but apparently
this practice has never been followed to any marked degree.
The vice prcsiflency should be treated with more respect than
it has received, because of the fact that its incumbent may sud-
denlv succeed to the f)residency. That fart ought to insure the
utmost care in the selection of ihc\i(c i'rcsidcnl . but tliat it has
' Utanl, " Amcritiin (lovcrnmcnt and I'olitics," New and Kcviscd Edition, p.
205.
THE ELECTION OF THE PRESIDENT 53
not done so, under the working of the party system, is a certainty
beyond all question. The vice presidency has, indeed, been
only a tail to the presidential kite. In selecting their candidates
for Vice President the national party conventions have been
actuated by a variety of motives. Sometimes the nomination
has gone to a leading competitor of the successful candidate for
the presidential nomination. Sometimes it has gone to the
favorite son of some doubtful State in order to help hold that
State in line at the election. At other times it has gone to the
representative of some faction in order to insure harmony
within the party. And at still other times it has gone to the
man who could make the largest contribution to the party's
campaign fund. The merits of the candidate, as a possible
President, usually receive very slight consideration. The es-
sential thing, from the standpoint of the party managers, seems
to be the availability and financial strength of the candidate.
The result is that men have often been elected to the vice presi-
dency who were very far from being satisfactorily equipped for
the duties of the presidency which they might have been called
upon to assume.
There is clear need for greater care in the selection of the
Vice President. And there is clear need, also, for bringing the
Vice President into reasonably close relations with the adminis-
trative work of the government, so that if he is called upon to
succeed the President, he will be somewhat familiar with the
work that must be done. The suggestion that the Vice Presi-
dent should have a seat at the cabinet table and take part in
formulating the policies which he not improbably may be com-
pelled to execute, is one of real merit. Under the constitutional
plan he is merely a highly ornamental officer with high social
standing and no poHtical power. By the accident of death or
from some other cause, he may become the most powerful polit-
ical officer in the Nation, if not the world. As Bryce so aptly
puts it, he is aut nullus aut CcBsar}
REFERENCES
Beard. American GovcrnmnU and Politics, Edition 1914, Chap. IX.
Bryce. The American Commonwealth, Edition 1910, Vol. I, Chap. V.
» Bryce, " The American Commonweelth," New and Revised Edition, Vol. I,
p. 300.
54 COMPARATIVE FREE GOVERNMENT
Dougherty. The Electoral System of the United States.
The Federalist, Nos. 67 to 72 inclusive.
Ford. The Rise and Groidh of American Politics, Chaps. XV, XXII.
Hart. Actual Government, Chap. XV.
Stanwood. .1 History of the Presidency.
Wilson. Constitutional Government in the United States, Chap. IIL
WooDBURN. The American Republic, Chap. Ill, pp. 94-142.
CHAPTER VI
The President as an Executive
The powers of the President cover a wide range of govern-
mental activities. They relate to both foreign and domestic
affairs and involve legislative as well as executive functions.
These powers are so vast that the President who is strong in
mind and will, and aggressive in character, can make himself the
dominant force in the government. Before taking up in detail,
however, the discussion of the President's powers and duties,
it is well to have in mind the essential provisions of the Con-
stitution.
The whole executive power of the national government is
vested in the President, and he is required to take care that the
laws are properly executed. He is made commander in chief of
the army and navy and of the militia of the States when called
into the service of the United States. He is given power to
grant reprieves and pardons for offenses against the United
States, except in cases of impeachment. With the advice and
consent of the Senate he is given power to make treaties and to
appoint ambassadors, consuls, judges of the Supreme Court,
and all other officers of the United States whose appointment is
not provided for in the Constitution or by acts of Congress. He
may veto bills and resolutions passed by Congress and may con-
vene both houses, or either of them, in special session, when in
his judgment occasion demands. In case they cannot agree
as to the time of adjournment, the President may adjourn them
to whatever time he thinks proper. It is also his right and duty,
under the Constitution, to give to Congress, from time to time,
information concerning the state of the Union and recommend
whatever legislation he may think necessary and expedient.
Upon him is imposed the duty of receiving foreign ambassadors
and other public ministers, and of commissioning all the officers
of the United States.
55
56 COMPARATR'E FREE GOVERN^IEXT
The President as Chief Executive. — It will be noticed that
the functions of the President, as listed in the Constitution,
naturally divide into two main classes, those relating to domestic
affairs and those dealing with foreign afTairs. It will also be
noticed that, despite the theory of the separation of powers which
underlies the main structure of the government, the President
has been charged with the exercise of legislative as well as
executive powers. It was plain to the men who drafted the
Constitution that, if the central government was to be effective
in its work, the President could not be confined exclusively to
executive duties. It is desirable to take up each of his important
functions for separate discussion.
First of all should be considered the President's position as
the Nation's chief executive. It is the primary duty of the
President under the powers granted to him to see to the faithful
enforcement of the laws of the United States. In doing this
he has the authority of the Nation behind him. He must see
that violations of the laws are prosecuted in the courts and that
the dignity and authority of the Nation are maintained. He is
responsiJjle for the execution of the policies determined upon l)y
Congress, a duty that becomes more difficult to perform with the
increasing complexity of industrial and political life. It is his
duty to see that the treaty obligations of the United Stales
are ob.served. In the discharge of these duties he has a large
power of direction over the work of administrative officials. He
is chiefly responsible for the manner in which the administrative
departments are conducted, and may remove officials who refuse
or fail to carry out his orders. He cannot, of course, ha\e
personal knowledge of all that trans|)ires, but in him the execu-
tive power is vested and to him the Xatioii looks for admiiiislra-
tivc direction and efficiency.
In the performance of his adminislrati\c duties the President
exercises a large ordinance power. Under this j)owir he may
supplement the acts of Congress concerning administrative
activities with detailed executive rules or regulations. Some of
the systems of rules which he has established in this way, acting
with the heads of the executive departments, assume the ])ro-
portions of codes of regulations, such as those whiih apply to
the army and navy, aiirl to the postal service. Among other
branches of the government in which there arc elaborate systems
THE PRESIDENT AS AN EXECUTIVE 57
of executive regulations may be mentioned the patent, pension,
and land ofl&ces and the Indian, consular, customs, and internal
revenue services. Many of these regulations are established in
response to definite instructions by Congress, but others are put
in operation without special authorization by reason of the gen-
eral executive power vested in the President. It should be
noted that this is closely akin to the legislative or law-making
function.^
The President's Military Powers. — The military powers of
the President, though great at all times, are especially so in times
of war. Then they expand rapidly and tend to overshadow the
powers of other branches of the government. The President
is at all times in control of the army and navy and appoints all
military and naval officers with the advice and consent of the
Senate. If, because of rioting or violence, he considers it im-
possible to enforce the laws of the United States by the ordinary
judicial processes, he may call upon the military to uphold and
enforce the national authority, as President Cleveland did at the
time of the great Chicago railway strike in 1894. In times of
peace the President's military powers are under rather definite
restrictions, but when the Nation is at war these powers become
far-reaching in their magnitude. Practically there are no limi-
tations upon the President as far as the direction of the war is
concerned. It is for him to decide how it is to be conducted.
He directs the campaigns, establishes blockades when he wishes,
and is responsible for the way in which the army and navy are
managed. " The President is not limited in the conduct of war
to the direction of the armed forces; he may do whatever a
commander-in-chief is warranted in doing under the laws of war
to weaken and overcome the enemy. It was under this general
authority, inherent in his office, that President Lincoln, during
the Civil War, suspended the writ of habeas corpus in the states
that were not within the theatre of the armed conflict. It was
under this authority that he abolished slavery in many of the
states ; arrested and imprisoned arbitrarily those charged with
giving aid and comfort to the Confederacy ; estabhshed a block-
ade of southern ports; and, in short, brought the whole weight
of the North, material and moral, to bear in the contest. Greater
> See powers of French executive, below, Chap. XLVII.
58 COMPARATIVE FREE GOVERNMENT
military power than was exercised by President Lincoln in the
conduct of that war it would be difficult to imagine." '
If, as a result of a war, as was the case in the war with Spain,
territory is acquired, the President may assume control and
through his military power set up a military povcrnment which
will continue in force until provision is made by Congress. The
President may, indeed, under these conditions, appoint a pro-
visional civil government with power to levy taxes and establish
courts and administrative departments. The war powers of the
President, it is thus seen, are capable of vast expansion when the
need arises.
Power of Appointment. — The power of appointment which
the President has under the Constitution and the laws of Con-
gress is one of the most important powers that he must exercise.
This is true from the standpoint of administration because the
efficienc}^ of the whole government machine will depend in large
measure upon the character of the appointments made by the
President. He is the head of the administrative system and it
lies with him through his a[)pointments to determine in large
measure how that system shall work. But this power is of
great consequence al.so from the standpoint of parly politics.
The dislriiiution of public offices has been from the i)eginning a
matter of vital concern to the party organizations. The party
to which the President belongs expects him to use the ai)pointing
power so as to strengthen and help it in its contests with the
opposing party. This is usually flone by the President, though
perhaps not so much now as formerly. It must be kejjt in mind,
in this connection, that the President is, first of all, the leader of
his party, for the time l)eing, and it cannot reasonably be ex-
pected that he will entirely ignore his own political fortunes and
the interests of his party in making appointments. ]'robai)ly
no other j)art of his work has given the avi-rage I'resident more
anxiety than this question of appointments.
There arc two classes of appointments, recognized i)y the Con-
stitution, which the President is required to make. One has
to <\o with the chief federal officers pro\i(ied for in the Consti-
tution or by the laws of Congress whose a|)pointment requires
confirmation by the Senate, and the other relates to inferior
' B«",ir«l, "American (JovcrnmcrU ami I'DJitics," Niw and Revised Kdilion, pp.
1^4-105.
THE PRESIDENT AS AN EXECUTIVE 59
officers provided for by acts of Congress whose appointment has
been given to the President alone. The first class is, of course,
by far the more important. It includes justices of the Supreme
Court, judges of the lower federal courts, ambassadors, members
of the cabinet, consular officers, members of important com-
missions, like the interstate commerce commission, postmasters
in the larger cities, and many other high officials whose work is
vital to the welfare of the nation. The number of these officials
is, of course, large, and, since many of them under the prevailing
practice hold office for a four-year term, each President is sure
to be called upon to make a great many appointments. The
minor appointments, which by act of Congress the President is
required to make without consulting the Senate, are not so
numerous as the others and as a rule give no special trouble.
Some of the minor appointments, by direction of Congress, are
made by heads of departments. But, as a matter of fact, most
of the offices created by Congress and filled by appointment by
the President require confirmation by the Senate. There are
more than 6000 of these presidential offices, carrying with them
an aggregate salary of over $12,000,000.^ It is easily seen, from
the mere number of offices, how great the President's appointing
power is and how burdensome its exercise is certain to be to the
conscientious President.
The requirement of the Constitution that the President
shall appoint a large number of officers " with the advice and
consent of the Senate " has been the cause of a great many con-
flicts between the President and the Senate and has had serious
consequences to the Nation. The intention of the constitution
makers seems to be clear enough. Their fear of a possible
monarchy was too keen to permit them to give the power of ap-
pointment to the President alone. He might use that power to
further his own ambitions and be able to subvert the republican
form of government. Some check upon him, therefore, was
considered imperative. This power to check the President
was given to the Senate, which, representing all the States as it
does, would be on the alert to prevent him from making ap-
pointments which were in his own interests and against the
interests of the Union. With regard to both appointments and
treaties with other countries, the Senate was to be an advisory
* Fairlie, " The National Administration of the United States," p. 4.
6o COMI'ARATIVI': TRKK GOVERNiMK XT
body to the President, but with power to defeat absolutely his
wishes if it considered that he was acting contrary to the public
interest. It was obviously not the intention that the Senate
should dictate to the President in the matter of ai)pointnients,
as it has done so frequently in the past, but that it should simply
see that he does not use the appointing power to the injury of
the Nation by putting objectionable men into office. In the
words of Jefferson, " the Senate is only to see that no unlit
person is appointed."
The part which the Senate has played with regard to ap-
pointments, however, has been very different from what was
intended. Here again the development of political parties has
wrought havoc with the design of the Constitution. In large
measure the discretion of the President in the making of ap-
pointments has been eliminated by the aggressions of the Senate.
In the case of many offices he is compelled to appoint men who
are acceptable, as party men, to the Senators from the Stales
in which the offices are located if those States are represented by
Senators of the President's own party. If he does not do this, his
appointments will not be confirmed by the Senate. The prac-
tice which the Senate has come to follow with respect to such
appointments is known as " senatorial courtesy." The majority
of the Senators yield to the Senators most concerned and if the
api)ointment is disapproved by them, confirmation is withheld,
and the President is forced to submit the name of some one who
is acce[)table or, at any rate, who is less objectionable to the
I)rotesting Senators than his first appointee. The result of
this practice is that, in the case of those offices to which it ai)plies,
the a|)p()intments are really mack- by the Senators. Thus the
President has practically surrendered some of his constitutional
rights to the Senate. In ordir to avoid opposition to his ap-
pointments, he must consult ( irlain Senators in adxanc c This
rule of courtesy, so called, is not an iron-clad rule, however.
Whether the President submits to the demands of the Senate
flepends l.'irgcly upon his character and temperament. His
action is al.so sometimes inlluenced a good deal by the interests
of his party.
'I'he senatorial courtesy practice does not ap|)ly, however, to
all appointments made by the President. In general, Senators
claim privileges un<ler it only in (onnection with federal offices
THE PRESIDExVr AS AN EXECUTIVE 6 1
which may be considered local in their jurisdiction, such as
postmasters, district attorneys, marshals, judges of the lower
courts, customs officers, and the like. The most important
appointments, as a rule, are exempt from this obstructive sena-
torial interference. Usually appointments to fill vacancies on
the Supreme Court are confirmed without open opposition,
although this is not always so. During President Cleveland's
second administration the Senate twice rejected his nominee
for a place on the court. Mr. Cleveland very neatly solved the
difficulty by sending in the name of Mr. White, one of the Sen-
ators from Louisiana, and, of course, " senatorial courtesy "
demanded immediate confirmation of the appointment. The
President is also comparatively free in the selection of ambas-
sadors and other high diplomatic officers. In the case of cabinet
officers he is entirely free to make whatever appointments he
pleases. The Senate makes no attempt to control these ap-
pointments. The attitude of the Senate is that since the Presi-
dent is responsible for the acts of his cabinet associates in the
conduct of their offices, and since collectively the cabinet is a
body of confidential advisors to the President, he should have
the right to select whomsoever he pleases. Of course, if the
President were to make a really disreputable or ineligible ap-
pointment, the Senate would undoubtedly interfere.
Although the members of the House of Representatives have
no constitutional control over appointments, the Senators,
in general, accord to the members of the House the right to pass
upon appointments which afTect their own districts, if the dis-
tricts in question are represented by members of the President's
own party. If they are controlled by the opposing party, then
the appointments are determined by the Senators of the State
if they are of the same party as the President. When both
Senators and Representatives are of the opposite party, the
President is expected to consult with the leaders of his own
party and make appointments that will strengthen the party
organization. It is a common practice for the entire congres-
sional delegation of a State, Senators and Representatives, to
confer upon questions of patronage within their State, the Presi-
dent being expected to make the appointments that are decided
upon. This is done because the political interests of those
members of the delegation who are of the same political party
62 COMPARATIVK TRKE GOVERXxMEXT
are for the most part identical. Moreover, the Senators are
vitally interested in the appointments that are made in the
various congressional districts by the Representatives. They
must see that these appointments are not opposed to their own
personal interests. But it should be noted again that the e.xtent
to which the Senate goes in its attempts to control appointments
depends a good deal upon the kind of man who is President.
This whole question of patronage is one that is very vital both
to the political parties and to the nation at large. The doctrine
that " to the victors belong the spoils " is deeply rooted in the
national life, although in recent years, under the operations of
the civil service law, noteworthy progress toward its over-
throw has been made. The tendency to emphasize merit rather
than party or personal considerations is steadily growing, to the
great benefit of the government service. It is hardly to be
expected, however, that the spoils system will ever be com-
pletely f list roved.
The Removal of Officers. — The President's power of removal
is also a matter of vital concern. The Constitution itself gives
no power of removal specifically to the President. The only
provision of the Constitution for the removal of officers is that
which establishes the process of impeachment, and in this the
I'resident has no part. But very early it was agreed thai this is
an unsatisfactory way of removing officers, particularly lho.se
of minor importance. The ciuestion came up for detailed dis-
cussion during the session of the first Congress and after careful
debate the right of the President to remove officers that he had
appointed was recognizee!. In general the view was accepted
that the right to remove is inherent in the right to appoint, and
that, notwithstanding the failure of the Constitution to make
specific mention of it, the right of removal is a constitutional
right wliich belongs to the President. The power of the Presi-
dent to remove officers whom he has appointed is practically
absolute, except, of course, in the case of judges who hold office
for life unrler the Constitution and can Ite rcmo\i(I only by im-
peachment.
The understanfling reached in 1789 as to the President's right
of removal continued without change until 1HO7 when Congress,
in the course of its fjuarrcl with Presiflcnl Johnson, [)assed the
Tenure of Office A( I which provided that I lie President must
THE PRESIDENT AS AN EXECUTIVE 6^
obtain the consent of the Senate before removals could be made.
The right of the President to suspend officers, during the recess
of the Senate, was conceded, but this must be done only for good
cause. Two years later, after General Grant had become Presi-
dent, the law was modified so as to recognize the right of the
President to suspend officers " in his discretion." But nowhere
in this law, either in its original or amended form, was there a
definite statement or indication of just where the power of
removal is lodged. In 1885, after President Cleveland came into
office, difficulties again arose between the Republican Senate and
the Democratic President, the Senate still claiming that its
assent had to be obtained before removals could be made. The
President stood firm, however, and the Senate finally yielded.
In 1887 an act was passed which repealed the law of 1867 and
thus recognized again the full right of the President. No other
attempt has been made by Congress to question the authority of
the President and it seems to be a settled policy that he can re-
move at will any officers whom he appoints except judges, and
without giving causes for his action. The constitutional ques-
tion involved has not been definitely settled by the Supreme
Court, but the power of the President, by common acceptance,
is beyond question. The opinion prevails that since the Presi-
dent is responsible for the faithful enforcement of the laws and
for the manner in which the vast administrative work of the
government is performed, he must be free to discharge faithless
or incompetent officials without interference.
It is to be understood that what has been said concerning the
President's power of removal has no reference to officers holding
positions under the protection of the civil service law. There is
a large number of civil service employees who hold their posi-
tions as the result of competitive examinations prescribed by
the Civil Service Commission, acting under authority conferred
by Congress, and who cannot be removed without adequate
cause.^ It is in the case of officers appointed directly by the
President, that his power of removal is without restriction.
The Granting of Pardons. — The President's pardoning
power is given to him by the Constitution. " He shall have
power to grant reprieves and pardons for ofifences against the
United States, except in cases of impeachment." It will be
' Below, p. 1 1 j.
64 Cr)M?ARATT\F. FREE GOVERXMEXT
noted that this is a very broad grant of power. In fact, in the
cases in which the President may act at all, his power is un-
limited. His pardoning power does not reach to the States, but
is confined to crimes against the United States. With respect
to these, however, the President is free to act as he pleases.
There are no restrictions as to how or when the power of pardon
shall be used. At any time after an offense has been committed,
whether legal proceedings have been started or not, the Presi-
dent may act. The only way that he may be called to question
for an abuse of the pardoning power is through impeachment
proceedings. Congress has attempted by legislative enactment
to restrict the President in regard to general amnesties, but the
Supreme Court has held that this is an invasion of the President's
rights. During the Civil War it was demonstrated that the
power to grant reprieves to soldiers convicted by court martials
is a power of vast importance.
The President and Foreign Relations. — One of the greatest
of the powers possessed b)- the President is that which gives
him practical control over the foreign relations of the United
States. He is not absolute in this control, by any means, because
the power to declare war has been given to Congress and his
treaty-making power is checked by the requirement that treaties
must be ratified by the Senate. But aside from these important
restrictions he has a free hand and practically determines the
Nation's foreign policy. The peace and prosperity of the
Nation are therefore largely in his charge. It is a heavy re-
sponsibility that is imposed upon the PrcsicKiil by this vast
power.
The President's authority under the Constitution is not con-
tained in a single j)rovision but is found in several. He is
charged with the duty of receiving ambassadors and other jjublic
ministers from foreign countries; he is given power to appoint,
with the advice and consent of the Senate, the ambassadors,
(jther public ministers, and consuls of the United States; and
he is given the power to make treaties, with the advice and
con.senl of the Senate, provided two thirds of the Senators
present concur. Moreover, the control of foreign relations is
looked upon as an executive function and since in the President
has been lodged the executive power of the Nation, his absolute
control over foreign affairs nnist be recognized, exce[)t as definite
THE PRESIDENT AS AN EXECUTIVE 65
limitations have been prescribed by the Constitution. The con-
trol of foreign relations is thus inherent in the executive office.
It is convenient, for purposes of discussion, to divide the
President's powers in this regard into two classes, those which
relate to the general intercourse of the United States with other
countries, and those which relate to the formal enactment of
treaties, in which the Senate has a share. Under the first come
all communication and negotiation with other nations. In this
the President is absolutely supreme. Neither the Senate nor
Congress as a whole has any restraint upon him. He is the
sole organ of communication between the United States and
other countries. He alone receives foreign ministers and passes
upon their credentials. With him alone, strictly speaking, do
they have official relations. They have official intercourse, to
be sure, with the Secretary of State, but the latter is the direct
and personal organ of the President.
The diplomatic representatives of the United States are
directly responsible to the President and he stands responsible
for their acts. Their instructions are from him and all of their
dealings are really with him, through the Department of State.
All the correspondence and negotiations between the President,
or the State department, and the diplomatic representatives of
the United States or of other countries are usually conducted
in secret and may indefinitely be kept secret if the President
considers such action necessary in the public interest. In carry-
ing on these negotiations any kind of policy may be pursued
that he may wish to adopt. Congress cannot control him in any
way. The President does not have the power to declare war,
but by the policy he pursues he may force the Nation into such
a position that war is the only way out, and thus practically
compel Congress to make the formal declaration. Or in his
dealings with another nation he may assume a position which
will compel that nation to take the initiative in declaring war
and thus leave Congress no choice but to accept the challenge.
The President by his foreign policy may easily entangle the
Nation so that war is inevitable. President Polk in 1846, just
preceding the Mexican War, ordered the United States troops
into disputed territory where they were fired upon by the
Mexicans ; Congress acted immediately, saying merely that
" war existed by the act of the Republic of Mexico."
r
66 COMPARATIVK TREK C.OVERXMENT
Another important power belongs to the President under the
provision of the Constitution which confers upon him the sole
right to receive foreign ministers. That is the power to give or
withhold othcial recognition of other governments ; and that
means not merely governments that are firmly estabUshed, but
also new governments that are trying to obtain a recognized
standing among the governments of the world. This means
that to the President has been given the power to pass upon the
independence of states, a power whose exercise may influence
profoundly the developments of world history. In this, as in
regard to communications and intercourse with other nations,
Congress has no jiart. The President has " the absolute and
uncontrolled and uncontrollable authority." '
The Treaty Making Function. — In the making of treaties
the President is restrained by the Senate which must give its
approval, by a two-thirds vote of the Senators i)resent, before a
treaty may be put into force. The peculiar wording of the
constitutional provision which gives to the Senate its right,
" by and with the advice and consent of the Senate," has given
rise to a great deal of discussion as to the relative parts of the
Senate and the President in the treaty-making function. Re-
spectable argument may be and has been advanced in support
of the theory that the Senate shares equally with the President
in this important power and that the Senate is not confined
simply to a decision as to whether it will ratif\' a treaty that has
been presented to it by the ['resident, merely altering it more or
less by way of amendment, but that it has the right also to par-
ticipate with the President in the formulation of the treaty.
This view denies the right of the President to negotiate or
formulate treaties as he |)leases without ci)nsullation with the
Senate. He must seek the advice of the Senate in the framing of
a treaty as well as its consent to the treaty's adoption.
Hut this is not the view of the ablest constitutional lawyers
and publicists. The theory that has the greatest weight of
authority is that the President is absolutely without restriction
in the negotiation of treaties with respect to all questions which
may i)r()|)erly become the subject matter of treaty agreements.
He may frame a treaty with any other nation upon any proi)er
subject that strikes his fancy, in any way he j)leases, antl for
' Kcinsth. " KcaclinKs on Aroeritan Federal Government," p. 84.
THE PRESIDENT AS AN EXECUTIVE 67
any proper purpose, without consulting the Senate or any other
branch of the government. He may negotiate as many of these
treaties as he may want to, if he can persuade other nations to
join with him. After they are framed, he may submit them
to the Senate or not, just as he pleases. They cannot be put into
operation and become law, of course, without the approval of
the Senate, but as to what treaties shall be made and what their
purposes shall be, the President alone has the authority to decide.
Neither the Senate alone nor Congress as a whole can control
him in this function. The President must take the initiative.
Congress, or either house acting separately, may pass resolutions
concerning international relations containing suggestions as to
the need of treaties for certain purposes and what their content
should be, but such acts are only gratuitous advice and are in
no way binding upon the President. He can accept or ignore
them as he wishes. The negotiation of a treaty belongs ex-
clusively to him because he alone has the constitutional right
to communicate with foreign countries. " He must negotiate
the treaty, make all the stipulations, determine all the subject-
matter, and then submit the perfected convention to the Senate
for ratification or rejection. They must take his finished work
and approve or disapprove." ^
The right of the Senate to amend treaties, however, is recog-
nized. It may give its advice in the form of amendments or it
may reject the treaty entirely. It is not confined to a vote of
Yes or No. The amendments may be of such a character as to
make the treaty fundamentally different from the one submitted
by the President. The President, however, is under no obliga-
tion to accept these amendments. He is free to accept them or
not. Even if the Senate ratifies the treaty without alteration,
the President may pocket it if he pleases and refuse an exchange
of ratifications with the other country. This power docs not
belong to the President by an express grant of the Constitution,
but it inheres in his executive authority to conduct foreign
relations.
The power of the Senate to thwart the will of the President
with regard to treaties is clear. It may defeat them by refusing
ratification, or it may amend them so that in their amended
forms they are objectionable to the President. Both actions
' Pomcroy, " Constitutional Law," Sec. 673, Third Edition.
68 COMPARATIVE FREE GOVERXMEXT
have repeatedly been taken. It is obvious, therefore, that the
President, in the negotiation of a treaty, may find it desirable
to inform the Senate as to what he intends and keep it informed
as to what is beinc; done. He is entirely free to ask for the advice
of the Senate while negotiations are pending if he wishes so to
do. This is often done in order to obtain the cooperation of the
Senate and lessen the chances of a rejection of the treaty when
it is submitted in formal manner for ratification. It is good
policy for the President to keep in the good graces of the Senate
in order to minimize the latter's hostility to his treaty projects.
This is usually done through the Senate's Committee on Foreign
Relations, whose chairman, at least, is frequently consulted
about treaty negotiations and kept informed as to the progress
of events. With the cooperation of this important committee
the chances of ratification are greatly improved. A good illus-
tration of the way in which a President may obtain this co-
operation was furnished by President McKiiilcy when he ajv
pointed Senator Davis, chairman of the Committee on Foreign
Relations, a member of the commission to negotiate the treaty
of peace with Spain in 189S. Senator Davis, having helped to
prepare the treaty, would of course defend it in the Senate and
because of his influence as chairman of the Committee on
Foreign Relations would be able to render valuable assistance
in obtaining its ratification.
At times the House of Representatives may have a part to
play in connection v^ith treaties. It has nothing to say con-
cerning either the negotiation of treaties or their ratification,
but sometimes treaties contain |)r()visions that involve legisla-
tion on the part of Congress in order to make them elTective.
In such case the House is free to exercise its discretion with
regard to this necessary legislation. The treaty may involve
the approi)riation of money, for instance, and the right of the
House to withhold the ajjproprialion, if it disa|)pr()ves of the
purpose for which the money is to be spent, seems to be fairly
well establishefl. The House as a political branch of the govern-
ment may exercise its di.scretion upon matters of legislation that
come before it. The Supreme Court has recognized this right,
as is shown by the fjillowing e.xdrpt from an opinion by Chief
Justice Marshall: "Our Constitution declares a treaty to be
the law of the land. It is cons(f|uently to be regardecl in courts
THE PRESIDENT AS AN EXECUTIVE 6g
of justice as equivalent to an act of the legislature, whenever
it operates of itself without the aid of any legislative provision.
But when the terms of the stipulation import a contract, when
either of the parties engages to perform a particular act, the
treaty addresses itself to the poHtical, not the judicial depart-
ment, and the legislature must execute the contract before it can
become a rule for the court." ^
The execution of treaties is left to the President, unless they
involve acts of legislation of the character referred to by the Su-
preme Court. They are laws just Kke the acts of Congress, and
the President is charged with the enforcement of the laws. If
treaties are in conflict with the acts of Congress, the rule of the
court seems to be that " the one last in date will control, pro-
viding always the stipulation of the treaty is self -executing." -
A treaty and an act of Congress stand on the same footing.
REFERENCES
(For References, see the following chapter.)
' Foster v. Neilson, 2 Peters 253 (1829).
2 Whitney v. Robertson, 124 U. S. 190 (1888).
CHAPTER VII
The President and Legislation
The President is a legislator as well as an executive ; that is,
he participates in the legislative function in a number of ways
and often to such an extent that he becomes the controlling force
in determining the legislative policy. A part of the President's
power in legislation is his by constitutional provision, but a
notable j)art of it is of the extra-constitutional type which has
come to him as the result of two great facts or developments.
The first of these is the fact that, though not intended by the
framers of the Constitution, the President has become directly
responsible to the people, who look to him, not simply as an
executive, but as leader of the Nation whose duty it is to see
that the [)0|)ular will is carried out in the work of legislation as
well as in that of administration. The President is the only
officer in the government who is directly responsible to the whole
j)co[jle. He is the only one who may be looked upon as the rep-
resentative of the entire Xation. He alone may l)e considered
as the spokesman of all the i)eople, and, therefore, he is expected
to be active in seeing that the popular will is embodied in the laws
of the land.
The second fac t which helps explain I he President's share in
the legislative function is that he is for llu- time being the leader
of his |)arty and is i)ledged to see that tlie i)arty promises, as
contained in the platform upon which he was elected, are carried
out. This almost always means legislation of some kind. If
his party in Congress fails toad inaciord with the |)arty |)ledges,
the President himself is discredited. Il< in |»art is held re-
s[)onsible for the failure. In considering tin- legislative activ-
ities of the President this dual capac il\' in which he acts, as
leader of the Nation and as leader of his ii.irty, must be kept in
mind.
The lonstilntional provisions (overing ihe ("resident's legis-
70
THE PRESIDENT AND LEGISLATION 71
lative functions are brief. He is required to give to Congress
from time to time information of the state of the Union and to
recommend to the consideration of Congress whatever measures
he thinks necessary and expedient. He is also given the right
to call Congress in special session to consider legislation that he
holds to be imperative. He is also required to pass upon every
bill enacted by Congress before it shall become a law and is
given power to veto bills which he disapproves. His consti-
tutional powers may be considered, then, under the two heads,
the power to recommend and the power to veto.
Recommendations to Congress. — Two methods have been
used by the Presidents in making recommendations to Congress.
According to one, the President in person attends a joint meeting
of the two houses of Congress and reads an address containing
the suggestions he wishes to make. According to the other, he
sends to each house of Congress a written message, containing
his recommendations, which is read by Senate and House clerks
to those members who are willing to hear it. Presidents Wash-
ington and John Adams delivered their messages in person, but
Jefferson refused to follow their example and transmitted to
Congress a written message. From iSoi until 1913 the practice
begun by Jefferson was observed without a break. But Presi-
dent Wilson in the latter year set aside the tradition of over a
century, and followed the rule begun by Washington and Adams.
At the assembhng of Congress in December of each year the
President, in one of the ways indicated, submits what is known
as his annual message. When delivered by the President in
person this is likely to be rather brief and to deal with the sub-
jects of legislation suggested in rather general terms. The
written message, however, as it usually appears, is a long docu-
ment, carefully prepared, which is based on information that
comes from the various departments and which reviews the
governmental conditions in the Nation, and the relations which
exist with other countries. It contains, as a rule, many sug-
gestions as to needed legislation for the improvement of the
government service, and usually a somewhat detailed discus-
sion of the one or more pressing political problems of the day
upon which the President and his party are pledged to act. This
message is usually sent to Congress upon the second day of its
session and is read to both houses. The reading is a perfunctory
72 COMPARATIVE FREE GO\'ERNMENT
proceeding, as a rule, members giving it only slight attention
and preferring to study it at their leisure, if they study it at all.
The message is the subject of more or less discussion in the news-
papers of the country and serves to give the people information
concerning governmental attairs and the policies for which the
President intends to stand. The usefulness of the message now
is not so great as in the early years of the Republic when the
means of transport and communication were so crude, but its
usefulness is by no means gone. It is still of distinct educa-
tional value. Congress, of course, is not obliged to give heed to
what the President suggests, but when Congress is controlled by
the President's party it is usually inexpedient, not " good
politics," to ignore his recommendations.
The President's opportunity to suggest legislation is not
confined, however, to the regular annual message. Special
messages dealing with one or more topics arc frequently sent to
Congress or delivered i)ersonally by the President. Those
relating to the formulation and ratification of treaties are sent
to the Senate alone. The special message really gives the Presi-
dent a better chance to discuss in detail specific legislative poli-
cies, and thus to influence Congress, than does the annua! mes-
sage which usually, and with ai:>parent necessity, is much taken
up with administrative matters. But whether the recommen-
dations contained in the messages are adopted i)v Congress and
embodied in laws, depends ujwn a number of things. " The
treatment which the President's recommendations receive, of
course, varies according to circumstances. I'hey may be
accepted because Congress feels that they are sound in principle
or because there is an eflective demand for them in the country ;
or they may be accepted because the F'resident l)y his party
leadership or personal favors or use of jjatronage can bring the
recjuisite pressure to bear on Senators and Representatives to
secure their passage." ' But whether accepted immediately
by Congress or not, they serve as a means of communication
between the President and the jK-opk-, and through tlu-m he may
lead in the formation of a public opinion that will demand
definite action at the hands of Congress. President Roosevelt,
I)articularly, was skillful in the use of his messages to stir up
' Bcartl, " .American (jovcmmcnl and I'ulitics, " New and Revised Kditiun, p.
30I.
THE PRESIDENT AND LEGISLATION 73
public sentiment. Likewise, President Wilson, delivering his
messages in person, has been effective in developing widespread
popular support.
The President's recommendations occasionally take a more
definite form than that of a mere suggestion in a message.
Occasionally bills are prepared under his general direction to be
presented to Congress. This does not happen often because
Congress is likely to resent the action of the President as being
outside his powers and therefore an unwarranted interference
with the legislative department. There is no provision in the
Constitution definitely conferring upon the President the right
to prepare bills and have them introduced into Congress. But
on the other hand, there is no provision that denies him that
right. So it may be assumed that he is not transgressing the
Constitution in having bills drafted with a view to their intro-
duction into Congress. He cannot introduce them directly, but
it is not at all difficult for him to find some Senator or Repre-
sentative who will stand sponsor for his bill and seek to force it
through Congress. There are objections to this practice on the
part of the President, but it has been done a number of times
and very probably will become more common in the future.
It is certain that the points of contact between the executive
and legislative departments are much more numerous now than
in the beginning, and it is reasonable to assume that executive
leadership in the field of legislation will become more potent in
the course of the years than it is now. It is natural for the
executive to take the leadership in government, for it is in the
executive that such leadership naturally rests. The unusual
success of President Wilson in directing legislative reform in
connection with such great acts as the tariff and currency laws
of 1913 has centered attention not only upon the President's
legislative powers, but also upon the need for efficient leadership
such as only a strong President can provide.
The Veto Power and Its Use. — The veto power gives to the
President an effective legislative weapon. It is an instrument
by which, at times, he can force his will upon Congress. The
constitutional provision by which this power is conferred upon
the President is a part of the broader provision which pre-
scribes the procedure upon bills after they have been passed by
both houses of Congress. No bill can become a law unless it has
74 COMP.\R.\TI\i: FRKK COVERNMENT
been presented to the President for his signature.' If hersigns
it, it becomes a law. If he disapproves of the bill and refuses
to sign it, he must return it, together with a statement of his
objections, to the house in which it originated, where, after the
objections have been entered upon the house journal, it may be
reconsidered. If after reconsideration two thirds of that house
agree to pass the bill again, notwithstanding the President's
objections, it is sent, together with the President's statement,
to the other house where it is likewise reconsidered and, if ap-
proved by two thirds of that house, it becomes a law. The Con-
stitution requires that in both houses the vote to pass a bill over
the President's veto must be by yeas and nays and the names of
the persons voting for and against the l)ill must be recordetl in the
journal of each house respectively. If a bill is not returned by
the President within ten days (Sundays excepted) after it is
presented to him, it becomes a law just as if he had signed it.
If, however, Congress adjourns before ten days have i)assed, it
does not become a law.
Since the time of Andrew Jackson the use of the veto by the
Presidents has dilTered radically from the original intention.
The plan of the constitution makers did not contemplate the
use of the veto to defeat bills whose jnirpose the President merely
disapproved of, but wiiich otherwise were unobjectionable.
The primary purpose of the veto was to protect the Constitution
and the executive authority against inroads i)n the part of Con-
gress. In the worfls of Hamilton, writing in The Federal ist,-
the grant of the veto power to the Presi<!enl was due to " ilie
propensity of the legislative department to intrude upon the
rights, and to absorb the powers of the other departments,"
and to the " insufllriency of a mere jiarchiiient delineation of the
boundaries " of the authority of the (k|)artmenls. Without
'This applies also l<> joint resolutions, hut coniurrcnl resolutions and constitu-
lion.ll amenilmenls need not he presented to the Presi<lent for his signature. Con-
current resolutions are not use<l for purposes of legislation, hut as u mcms of cx-
prcssinK fn<l. principles, or the oi)inions and pun>oses of the two houses. The
appointment of joint committees, for instance, is authori/.e<l hy resolutions of this
form. Joint resolutions, however, are used for minor leRislative purixiscs and arc
looked upon ofi hills vi far as procedural rc<|uircmcnts are concerned. Special ap-
propriations for minor and intidenlal pur|»scs are sometimes made in this way.
I'ormrrly the joint resolution was used for the ena< tmcnl of general IcKislalion, hut
this practice has hecn ahundoncd. .Sec House Manual, paragraphs ,{Ko, .^qo.
» No. 73.
THE PRESIDENT AND LEGISLATION 75
a negative or veto of some kind, either absolute or qualified, the
executive ' ' would be absolutely unable to defend himself against
the depredations " of the legislative branch of the government.
Therefore " the primary inducement to conferring the power in
question upon the Executive, is to enable him to defend himself ;
the secondary, is to increase the chances in favor of the com-
munity against the passing of bad laws, through haste, inadvert-
ence, or design."
The early Presidents followed the constitutional intention and
used the veto sparingly. Washington vetoed only two bills
during his two terms in the presidency. Down to 1830 only
seven more were vetoed by his successors. The attitude of the
early Presidents was that the policy-determining function had
been given by the Constitution to Congress and the President
was not to interfere with this congressional function except for
clearly defined constitutional reasons. But President Jackson
held an entirely different view of the use of the veto.^ His
theory was that the President must share the responsibility for
legislation with Congress and that, therefore, he is free to veto
bills that seem to him of doubtful wisdom. Jackson used the
veto freely to defeat measures that were contrary to his personal
views or his party's policy as he understood it. His position
was bitterly denounced by his poHtical opponents, but from that
time on the Presidents have uniformly followed the Jacksonian
theory. The extent to which the veto has been used is indicated
in the following passage : " From the organization of the govern-
ment under the constitution to the end of President Cleveland's
second term, the number of bills vetoed was about five hundred.
Authorities differ slightly. The figures, including pocket vetoes
upon which messages were written and bills informally or
irregularly presented, seem to be four hundred and ninety-seven,
of which the number regularly vetoed appears to be four hundred
and eighty. Two hundred and sixty-five of these were private
pension bills, of which five were vetoed by President Grant and
the remainder by President Cleveland. Of private bills, other
than pension bills, seventy were vetoed ; of local or special bills,
eighty-seven. The remainder, seventy-five in number, includ-
ing bills for the admission of states into the union, are classified
as general bills. Of these seventy-five, President Washington
^ Woodburn, "The .\merican Republic," p. i4g.
76 COMPARATIM-: IREE (lUVERXMENT
vetoed two, Madison three, Jackson six, Tyler live, Polk one,
Pierce three, Buchanan three, Lincoln two, Johnson eighteen,
Grant nine, Hayes ten, Arthur three, Cleveland eight, Benjamin
Harrison two. Of Presidents who served full terms, John
Adams, Jefferson and John (^uincy Adams did not use the veto,
nor did W. H. Harrison, Taylor, Fillmore or Garfield." ' The
veto has been freely used by all of the Presidents, since Cleve-
land's second administration, McKinley, Roosevelt, Taft, and
Wilson. McKinley is credited with at least fourteen vetoes, and
Roosevelt with forty-two.
It is important to note that public opinion supports the Presi-
dents in this free use of the veto. The people look upon the
President, regardless of constitutional theories, as in large meas-
ure directly responsii)le for the legislative policy. Tiu-y place
him in his high position to see that their will is matle effective.
If the acts of Congress are contrary to thai will or express it
inadequately, it is his business to inlerj")ose the \eto to prevent
those acts from becoming laws. In the ])ublic mind the Presi-
dent is a definite, vital part of the lawmaking department.
He is, moreover, the one direct representative of all the people
and his veto power is simply looked upon as an instrument for
the execution of the popular will.-
Experience shows that the veto is an effective instrument in
the hands of the President. It is a check upon Congress which
is hard to overcome. It has not often been possible to pa.ss bills
over the President's veto, notwithstanding iJie fact that the
' Finlcy and Sanderson, " The American Executive and IC.xecutivc Mcthcxis,"
p. 211.
' " While the veto power has had an a.stonishinR development in this countr>-, the
kindly prcroRative upon which it was modelled has dis;ip|>eared. Neither (leorRC
III nor any of his successors ever used it. There is no instance of a veto from the
crown upon a law of Parliament since Queen .Vnne's rei^n. In the hands of the
President, who, in the estimate of 'The Federalist,' woidd have to be even more
cautious in exenisiiij? this (xjwer ih.in the British kin^, it is in rohust operation.
Either monarchical jireroRalive has found a more congenial soil in the republic than
in the kinKdom whose vivereiRnty was thrown off, or else a remarkable transforma-
tion ha.n taken place in the constitution of the presidency, and instead of an embodi-
ment of prcroKative. it ha.s become a representative institution. 'I'he history of the
phases of the development of the veto |K)wer shows that the latter view of the ca.sc
is certainly the true one. Jackson's demo<ratii instinit correilly infurmed him of
the Mjurte of his fwwer when he told the Senate that it was 'a body not directly
amenable to the |)cople, ' while the President 'is the direct representative of the
(icople, cictted by the |>eople, and resjKjnsiblc to ihcm.'" — Ford, "Rise and
(irowth of American Politicft," p. iK6.
THE PRESIDENT AND LEGISLATION 77
two-thirds vote that is required to overcome a veto has been
construed to mean simply a vote of two thirds of the members
present and not two thirds of the entire membership. No bill
was passed over the President's veto until the time of President
Tyler and no really important measure was thus passed before
the controversy arose between Congress and President John-
son.^ The influence of the President due to the fact that he is
the party leader is an important factor in this connection.
There must be a wide split between the President and the repre-
sentatives of his party in Congress before a sufficient number of
them will oppose him so actively as to force a measure through
in the face of his veto. And Congress is not likely to be so over-
whelmingly of the opposite party as to be able to overcome the
veto by a strict party vote.
The " pocket veto," of which mention has been made, is
deserving of brief consideration. This grows out of the provi-
sion of the Constitution to the effect that if Congress adjourns
before the ten days allotted to the President for passing upon a
bill have expired, the unsigned bill shall not become a law. Thus
the pocket veto can occur only in the case of bills that are sent
to the President in the closing days of a session of Congress. If
more than ten days intervene between the time he receives the
bill and the time Congress adjourns, he must either sign it or
return it to Congress with his objections. But if the time is less
than ten days, he can simply fail to sign, if the measure is one
that he wishes to defeat, and this is called the " pocket veto."
No reason for his failure to sign need be given. Congress cannot
criticize him for his inaction because it did not give him the full
constitutional period of ten days in which to consider the meas-
ure. It is clear that the pocket veto is a convenient device for the
President when he wishes to defeat measures that are presented
to him during the closing days of a session without taking an open
stand against them. Many Dills have met their death in this way.
Extra-legal Methods of Influencing Legislation. — Much of
the President's activity in a legislative way, under present
practices, does not lie within the bounds of the Constitution.
He has extra-constitutional methods of influencing the course
of legislation which, from the standpoint of practical results, are
' Finley and Sanderson, "The American Executive and Executive Methods,"
p. 212.
78 COMPARATIVF, 1 REE GOVERXMENT
quite as important as those provided for him in the Constitution.
As leader of the dominant party, for the time being, he holds a
strategic position. If he is so fortunate as to have the rank and
file of his party a unit behind him, he is able frequently to force
Congress to do his bidding. He may accomj^iish this by making
direct appeals to the people and thus bring the full force of public
opinion to bear upon Congress. He may do it by convincing
members of Congress who oppose him that their opposition, if
continued, will mean their own political ruin. He may obtain
the legislation he wants through persuasion, holding conferences
with the leaders and other members of Congress for the purpose
of bringing them into line. He may succeed through a threat
of veto. Or, if his sense of propriety permits, he may accomplish
his purpose by the use of patronage, a method which has been
found to be at times extremely efficacious. Rewarding friends
and punishing enemies by the bestowal or the withholding of
federal patronage has been a somewhat common practice,
although the Presidents have been unwilling to admit it. The
number of offices that every President must fill by appointment
is so large, and the need, according to accepted standards, for
every Senator and Representative to control his proper share of
the appointments is so great, that the President is often al)lc to
obtain public sup[)ort of his policies from men who, in pri\ate,
bitterly denounce him, and seek his undoing.
Some of these extra-legal methods of influencing Congress
are plainly inconsistent with the spirit of the Constitution
and the spirit of free government. It is proper for the President
to concern himself actively with questions of legislation, but
to make bargains with Senators and Representatives that
involve the distribution of patronage and promises of prefer-
ment, is not a legitimate means of influencing congressional
action. Its usual potency only emphasizes its t)l)jectionable fea-
tures. Some of the methods suggested, however, may fittingly
be u.scd. Direct appeals to public opinion arc salutary and,
if the President's position is reasonable, are likely to be elTective.
A well-developed public o|)ini()n is, after all, the most potent
force in the politics of a free state.
The i)osition which the President holds with regard to legis-
lation is not a definitely fixed position. I lis activity and his
influence will tlepend in large p.irt upon his own personality,
THE PRESIDENT AND LEGISLATION 79
and his convictions as to his constitutional authority. The
President who believes that he has the right, and that it is his
duty, to take the lead in the formulation of legislative policies
will find abundant means, both constitutional and extra-con-
stitutional, to make his leadership effective. And in doing this
he need not violate the proprieties nor transgress the spirit
of the Constitution. The following from Woodrow Wilson,
written before he could have had much thought of ever being
President, states the point clearly : " Some of our Presidents
have deliberately held themselves off from using the full power
they might legitimately have used, because of conscientious
scruples, because they were more theorists than statesmen.
They have held the strict literary theory of the Constitution,
the Whig theory, the Newtonian theory, and have acted as if
they thought that Pennsylvania Avenue should have been even
longer than it is; that there should be no intimate communi-
cation of any kind between the Capitol and the White House ;
that the President as a man was no more at liberty to lead the
houses of Congress by persuasion than he was at liberty as
President to dominate them by authority, — supposing that
he had, what he has not, authority enough to dominate them.
But the makers of the Constitution were not enacting Whig
theory, they were not making laws with the expectation that,
not the laws themselves, but their opinions, known by future
historians to lie back of them, should govern the constitutional
action of the country. They were statesmen, not pedants,
and their laws are sufficient to keep us to the paths they set
us upon. The President is at liberty, both in law and conscience,
to be as big a man as he can. His capacity will set the limit ;
and if Congress be overborne by him, it will be no fault of
the makers of the Constitution, — it will be from no lack of
constitutional powers on its part, but only because the Presi-
dent has the nation behind him, and Congress has not. He
has no means of compelling Congress except through public
opinion. . . . The personal force of the President is per-
fectly constitutional to any extent to which he chooses to exer-
cise it, and it is by the clear logic of our constitutional practice
that he has become alike the leader of his party and the leader
of the nation." ^
'Wilson, "Constitutional Government in the United States," pp. 70-72.
8o COMPARATIVE FREE GOVERNMENT
REFERENCES
Beard. American Government and Politics, Edition 1Q14, Chap. X.
Beard. Readini^s on American Government and Polities, Chap. X.
Bryce. The American Commonuealtli, Edition 1910, Vol. I, Chaps. VI, VII,
VIII.
Fairlie. National Administration of the United States, Chaps. I, II.
FiNLEY and Sanderson. The American E.xecntiit and Executive Methods,
Chaps. X\', XVII, XIX.
Reinsch. Readings on American Federal Government, Chaps. I. 11, III, IV.
The Federalist, Nos. 73 to 77 inclusive.
Wilson. Constitutional Government in the United States, Chap. III.
WooDBURN. The American Republic, Chap. Ill, pp. 142-104.
Young. The New American Government and Its Work, Chap. II.
CHAPTER VIII
The President's Cabinet
The President's cabinet is composed of the heads of the great
executive departments. Its members, as heads of departments,
have both a constitutional and a legal status, but the cabinet,
as a collective body, has neither. The term cabinet is not
used in the Constitution. There are only two references in the
Constitution to the officers who are members of the cabinet.
The first is the provision which gives the President the power
to require the opinion in writing of the heads of executive de-
partments upon any subject relating to their respective offices ;
and the second is that which gives to Congress the right to
vest in the heads of departments the power to appoint inferior
officers. Nothing is said in the Constitution as to where the
power to create the executive departments shall rest, but this
power has always been claimed and exercised by Congress.
So each of the executive departments is the result of an act of
Congress. No one of them is definitely the creation of the
Constitution itself. The Constitution seems merely to take
it for granted that executive departments would be established,
for it was manifest that the President himself could not admin-
ister the national government in all of its details.
As to the collective character of the present-day cabinet,
there was apparently no thought whatever in the minds of the
men who drafted the Constitution.^ It was recognized that
the President would need advisers, but it was generally felt
that the Senate, which by the Constitution was brought into
intimate relations with the President, would meet that need
adequately. The implied dut}^ of the heads of the executive
departments was simply to administer their departments under
the President's direction and control. The cabinet as a col-
• Perhaps Charles Pinckney is to be excepted. See Learned, " The President's
Cabinet," pp. go ff.
G 8l
82 COMPARATIVE FREE GOVERNMENT
lective body, therefore, is simply the product of custom. It is
another of the important extra-legal institutions of the United
States.
The practice, on the part of the President, of seeking advice
from the heads of departments was begun very early. Wash-
ington, indeed, from the very start, looked upon these officers
as his confidential advisers. In the beginning he advised with
them individually, and not collectively, as if they constituted
a real privy council to the President. Soon, however, he began
to invite some or all of them to somewhat formal meetings to
consider governmental problems. Before 1793 these meetings
were irregular in point of time and procedure, but by the begin-
ning of 1793 the formal cabinet meeting was pretty well es-
tablished.^ The name cabinet was not at first applied to
the President's advisory council, but soon came into general
use, although it remained unknown to the formal law until
1907.=
The Cabinet's Relation to the President. — The relation
which the cabinet members bear to the President should be
clearly understood. It is this relation, in fact, which dilTer-
entiates the President's cabinet from the cabinets of the parlia-
mentary governments of the Old World. Cabinet officers in
the United States are responsible to the President and not
primarily to Congress, notwithstanding the fact that the powers
they e.xercise are determined by Congress, and that b}- the same
authority may be fixed in the minutes! detail the organization
of their departments and the procedure that must be followed.
'Sec article by Henry B;irrctt Learned, in Tin- Aiiitricin Poliliml S<iiii<i- Re-
view, Vol. 3, p. 32y.
*"N<)t only was n definite Council now set apart hy the President's re|XMle<l
summonses; but it heKan to he called by a particular name. Madisijn, Jefferson,
and Randolph were among the first to refer to the Presi<ient's council as the Cabinet.
Washington did not employ the term, his customary phrase being 'the Secretaries
and the Attorney (Jencral,' or 'The Heads of Departments and the Attomcy-
(icneral,' with such variations as 'the Conlidential oflicers of (iovemmenl," and
'the gentlemen with whom I usually advise on these occasions.' Neither did
Hamilton nd<»pt the name Cabinet, though he freely employed the term Ministers.
In Congrcsnional uvigc we have not noted the name earlier than the spring of 180O,
when the changes were rung on it in a caustic debate in which John Randolph figured.
It ap|>cars in a res<ilulion in the hous*- of representatives, for the first time, wc be-
lieve, so late as July, iH/17. And it remained unknown to the statutes, until it ap-
pcarcfl in the (leneral AjJjiroprialion Act of I'ebruary ib, lyo?." — Hins<lale, "A
liistury of the I'resiilent's Cabinet, " p. 15.
THE PRESIDENT'S CABINET S^
The cabinet officers are not responsible in any way for the acts
of the chief executive, the President. In this respect they hold
a fundamentally different position from that of the cabinet
ministers in England where each is responsible for the acts of
the nominal executive, the king or queen. The President is
charged by the Constitution with the executive function and is
responsible for the manner in which that function is discharged.
But he must act through the heads of the departments. There-
fore their acts are his acts. He profits from their successes and
must assume the responsibility for their failures. They are
appointed by him and because of his responsibility for what
they do, the Senate does not interfere with the appointments
that he makes. It is held that he is entitled to have whomso-
ever he pleases as his confidential advisers and as heads of de-
partments through whom he must act. The President has
full practical authority over them, regardless of restrictions
which Congress may seek to establish. This authority is
shown by his unquestioned right to remove them whenever he
pleases and for reasons of his own. This power to dismiss
cabinet officers from the government service has been used with
the utmost freedom, although only in a few instances have the
dismissals been technically removals. "But virtual removals,
couched in the polite phrases of resignation and acceptance,
are numerous, probably more so than anybody knows, since
there may well be cases, in which retiring Cabinet officers have
succeeded to second or third class diplomatic posts, or to inferior
judgeships, without knowledge on the part of the public as to
whether the change was more desired by Secretary or Presi-
dent." ^ This power of removal assures to the President the
power of direction. This is true practically, regardless of the
fact that from the standpoint of theory there is no clear under-
standing as to just what the President's power of direction over
administrative officials actually is. Attempts have been made
at times by Congress to interfere with the power of removal,
but without success.
The work of the members of the cabinet must be considered
from two points of view ; first, as that of individual executive
officers charged with the administration of the departments
over which they have been placed, and, second, as that of a col-
' Hinsdale, "A History of the President's Cabinet," p. 317.
84 COMPARATT\K FREK OOVKRXMF.XT
lective body of advisers to the President. In their individual
capacity they are the direct agents of the President through
whom he acts in the discharge of his executive function. In
their collective capacity they assist the President in the formu-
lation of governmental and party policies. The relation they
bear to the President in this advisory capacity is a personal
one, recognized neither by the Constitution nor by the laws.
Moreover, this relation is entirely dependent upon the Presi-
dent's will. He need not seek the advice of his cabinet,
individually or collectively, if he does not wish to do so.
Also, he need not accept their advice if he prefers some other
course of action. The responsibility is his and his freedom to
act according to his judgment is unquestioned. It is expected,
however, that the President will consult with the cabinet, and
it is likely that he will be influenced materially by the opinion
of his cabinet associates. He has chosen them for their posi-
tions because he has confidence in their judgment upon ques-
tions of policy as well as in their ability to discharge their ad-
ministrative duties efficiently. It would hardly be expedient
for him, as a rule, to ignore their advice. The questions upon
which the opinion of the cabinet as a whole is sought are natu-
rally questions of general policy, the special problems of each
dei)artment being considered separately by the President and
the head of the department.
Regular hours are set by the White House rules for the cabinet
meetings, although special meetings may be called, of course,
whenever the President pleases. These meetings are formal, in
a sense, although they concern no one but the President and
the members of the cabinet. They are usually secret meetings
and no formal records are ke])t of what is done. This fact
illustrates the personal, unoflicial character of the relationship
of the cabinet in its collective or political capacity lo the Presi-
dent.
In a very real sense the cabiiut collie tixcly is a ])arly body,
assisting the President as i)arty Icadir, although the cabinet
is not a part of the formal party organization. The President
must at all times consider the influence of his acts and of his
policies upon the interests of his |)arl\- and it is the business of
his cabinet advisers to help him sfccr dear of j)arty entangle-
ments and mistakes whi( li iiia\ had to party disaster. It is
THE PRESIDENT'S CABINET 85
not possible to obtain an adequate understanding of the Presi-
dent's work without keeping in mind constantly his relation to
his party. As party leader it is necessary for him not only to
keep in touch with public sentiment throughout the Nation,
but also, by one means or another, to appeal frequently to the
people in order to promote public opinion favorable to him and
his policies. Many of these appeals are made through his
messages to Congress and his own public addresses. Cabinet
members, however, frequently appear before the public as the
spokesmen of the President, outUning administration policies
and arguing for particular measures which the President wishes
to induce Congress to pass. When appearing in this way they
are looked upon as the personal agents of the President in his
role as leader of his party and political leader of the Nation.
The responsibility for what they say concerning controversial
subjects in reality belongs to him.
Principles Governing the Selection of a Cabinet. — The rela-
tion that exists between the President and the cabinet and the
nature of its function as a political body are clearly indicated
by the principles which usually control in the selection of cabinet
members. There is always a mixture of motives revealed in
the selection, sometimes one being more prominent and some-
times another, depending largely upon the President's own pur-
poses and the political conditions of the country.
In the beginning Washington recognized the opposing parties
in his appointment of the heads of departments. Hamilton,
the real leader of the Federalists, was made Secretary of the
Treasury, and Jefferson, the leader of the Democratic-Republi-
cans, was placed at the head of the State department. Wash-
ington seemed to feel that the conflicting interests of the Na-
tion, as indicated by the opposing political parties, should be
represented and balanced in the new government. This experi-
ment was far from successful, however, and in the later years
of his administration, Washington definitely committed him-
self to the policy of selecting cabinet members who were of the
same party faitli, and who would consequently be likely to
work together harmoniously. Since that time the cabinet has
been essentially a party body. The regular rule is to have the
cabinet made up of men of the same political faith as the Presi-
dent, although the exigencies of politics sometimes demand that
86 COMPARATR'E FREE G(^VERXMEXT
factions within the President's party that are really not in
svmpathy with him be given representation. The result of
this is a coalition cabinet made up of men representing more or
less antagonistic elements within the party. Lincoln, in the
formation of his first cabinet, furnishes a noteworthy illustra-
tion of this factional representation. His chief competitors
for the presidential nomination, and therefore the leaders of
the various factions within the then new Republican party
were given seats at the cabinet table. This policy, on the part
of Lincoln, was necessary in order to promote harmony among
the supporters of the Union, but it was a difficult policy, and it
was only Lincoln's tactful ability to handle men that made it
successful. Other Presidents have fallen far short of Lincoln's
achievement. It is usually the President's purpose to lind men
who are not only members of his own party, but who are also,
in most respects, in complete accord with his own policies. The
result of this practice has usually been the selection of men who
have attained recognized standing as party leaders in the Na-
tion. There is a tendency in recent years, however, to break
away to some degree from this rule. The Presidents now apjiear
to feel more free to appoint men to the cabinet in whom they
have personal confidence, whether these men have been con-
sidered party leaders or not. Li other words, a greater em-
phasis is now placed upon the function of the cabinet as a body
of i)ersonal advisers to the President than was formerly the
case when the cabinet was more distinctively a body of party
leaders brought together for the purpose of administering the
government according to the party program. Also there is
discernible a tendency to place increasing emphasis ujjon the
functicjn of cabinet members as administrati\'e officers and
minimize their function as purely |)olilical officers. The char-
acter of the cabinet as a party body is not likely to (iisa])|)ear,
however, although its relationship to the President may possibly
become even more personal than it is now.
In the formation of a cabinet, geogra|)hi(al considerations
are usually given great weight. The i'ri-sidi'nt, as a rule, at-
tempts to balance Stale and sectional interests so that no one
State or section will have a preponderating inlluence in the
administration. Hut here again the rule is by no means abso-
lute. '1 he practice of balancing the .sections is rather (arefully
THE PRESIDENT'S CABINET 87
observed, but in recent years it has been not infrequent for a
single State to have two representatives in the cabinet. Under
President Roosevelt, indeed, New York for a time had three
representatives as well as the presidency itself. Since the time
of President Cleveland's first cabinet it has been common for
the Presidents to give two cabinet appointments to a single
State. The President is, of course, after the man whom he
considers best fitted for the particular work in mind and it is
not always possible to find the right man in the State which
he might wish to recognize by a cabinet appointment. Sec-
tional considerations, however, are never overlooked. There is
too much at stake, in a personal and party way, for the Pres-
ident to ignore the conflicting interests, fancied or real, between
East and West, North and South. He must have a following
in all sections and in all States if his administration is to be of
the highest success. The practice of giving consideration to
the geographical distribution of cabinet members began with
Washington and has been more or less strictly adhered to by all
of the Presidents since. The nation expects this, and trouble
would certainly follow for the President who ignored it com-
pletely and picked his cabinet associates from a single section.
Another question of great practical importance which the
President must take note of in the formation of his cabinet is
whether or not he shall give any of the places to members of
Congress. The President must work with and through Congress
for the accomplishment of his purposes, and his chances of
success are much improved if he has in his cabinet men who
have been leaders in Congress. This is particularly true in
case the President himself has not had congressional experience.
If he has among his advisers men who understand thoroughly
the intricacies of congressional procedure and the influences
which are effective in the work of legislation, he is much more
likely to obtain from Congress what he wants than he other-
wise would be. Consequently there will usually be found in
the cabinet men who have had congressional experience. Par-
ticularly are Senators likely to be called upon to accept positions
in the cabinet ; members of the House of Representatives are
less frequently taken into the President's official family. This
is doubtless due to a number of reasons. Senators are usually
men of larger abilities and longer political experience than are
88 COMPARATRi: FREE GOVERXMEXT
members of the lower house, although this is by no means
always the case. Moreover, the President is more directly
dependent upon the Senate because of the latter's control over
appointments and its share in the treaty-making power. If
the Senate is antagonistic to the President, he may be defeated
in the attainment of his most cherished purposes. With men
in the cabinet, however, who have been prominent in the work
of the Senate, he is in a much more favorable position for bring-
ing influences to bear which will induce the Senate to yield to
his desires. Presidents have not always been successful in
persuading Senators to give up their places in the Senate for
positions in the cabinet. Many men prefer the legislative
work of the Senate to the administrative duties of the cabinet.
But it is worth while to remember that even the offer of a cabinet
position to a Senator is conducive to friendly relations between
him, and consequently his associates in the Senate, and the
President. The value of such friendly relations is obvious.
Sources of Cabinet Material. — There is no one special branch
of the government service which may be looked upon as a
training school for cabinet positions. Congress usually furnishes
one or more of the cabinet members, but the President must
find the men whom he considers suitable where he can. From
the very start, as already shown, the leaders of the President's
party who are of national standing have fri'(iuiiitly been drafted
for cabinet service. The appointment of such leaders may or
may not tend toward real harmony within the administration
and the i)arty. The outcome depends largely Uj)on the charac-
ters and ambitions of the.se leaders and upon the President's
hold upon the public confidence. The President who has the
people back of him can usually force his will upon his as.sociates
anrj at least maintain the api)earance of harmony. Many of
the cabinet members, however, do not come from the acti\e
party leaders, but from the ranks of successful business and pro-
fessional men who, because of their training and experience,
arc considered filli-d for these high governmi-nlal positions.
The President is under no restraints whatever in making his
selection, and lheapf)ointmenls of recent years show that there
is a tendency to look for cabinet material among men who have
had a successful experience in the conduct of large business
undertakings. In the legal |)rofession, also, many cabinet
THE PRESIDENT'S CABINET 89
members have been found. A knowledge of the principles and
the technique of the law, though not in itself sufficient to insure
efficiency in administration, manifestly may be of great help
to those who must execute the laws. The legal profession has
always been liberally represented in the cabinet. The diplo-
matic service, also, has furnished a number of cabinet appointees.
The training gained in this service is particularly important for
the work of the State department. Of equal importance with
these others as a source of cabinet material must be mentioned
the governorships of the States. The administrative experience
of the governors is often of such a character as to fit them ad-
mirably for service as heads of the great executive departments.
Moreover, their successful careers in the practical politics of
their States give them an understanding of party problems and
methods which may prove of very great benefit to the President.
The result is that ex-governors are frequently found in cabinet
positions. Sometimes, also, appointment to specific places
comes by way of promotion within the cabinet itself. Some of
the departments, such as the State and Treasury departments,
are considered of higher rank than others, and it not infre-
quently happens that Secretaries are transferred from some of
the lower to higher positions, the ranking or gradation of the
departments in the main being determined by the order of their
establishment.
It is clear from this brief enumeration of the chief sources
from which cabinet members are drawn that the President is
not limited in his selection to any one class or profession. He
has all of his fellow-citizens from whom to choose. He is free,
if he wishes, to be guided by his own judgment. His motives
are known to himself alone. He has the interests of his party
and the interests of the nation, as well as his own personal
fortunes to conserve. Just how he shall do this, as far as cabinet
appointments are concerned, is for him alone to say.
The Cabinet's Relation to Congress. — Notwithstanding the
direct responsibility of the department heads to the President,
they hold a close and somewhat peculiar relation to Congress.
Their right to be is casually recognized by the Constitution, as
before stated, but they do not hold ofHce by reason of a specific
constitutional provision.^ The departments over which they
•Above, p. 81.
90 COMPARATIVE FREE GOVERNMENT
preside have been created by acts of Congress, and it was from
Congress that the authority they exercise was derived.' The
control of Congress over the organization of the departments
is complete. New departments may be created, old depart-
ments may be reorganized or abolished, their powers may be
increased or diminished, as Congress sees fit. The detailed
procedure to be followed by the departments may be fixed by
statute. Of course the President might intervene with his
veto if the proposals of Congress were objectionable to him, but
the veto could be overcome if Congress were determined to
enforce its will. According to the theory of the Constitution,
the legislature is not to control the executive, but it should be
noted that the power of Congress over the executive depart-
ments, and therefore over the agencies through which the Pres-
ident must work, is so great that the actual exercise of the
executive authority may in large measure be regulated by legis-
lative action. This power of regulation is not confined, how-
ever, to a control over the organization and procedure of the
departments. Congress has other means of exerting influence
upon the activities of the executive branch, the use of wiiich
brings it into close relationship with the departments.
Full power of direction by the President over the departments
has never been conceded by Congress and frequently attempts
are made, by one process or another, to control the executive
heads in some of their activities. This is done in spile of the
fact that Congress has definitely recognized the President's
power of removal in which the power to direct is inherent.
That Congress can effectively restrain executive action is
unquestioned. One of the important means of accomplishing
this is through its control over appropriations. The President
and all branches of the executive authority are dependent upon
Congress for the funds with which to do their work. The execu-
tive is thus helj)lcss without the aid of Congress. 'Hie work of
all of the de|)artments, or of any particular department, may
be curtailed anrl limited by the refusal of Congress to grant the
needed supi)lies. In this way Congress may, if it wishes to
assert itself, practically dictate the policy of a dc|)artment.
Technically the President is responsible for the work of each
department, but his hands may be so lit-fl by congressional
' Contrast with French cabinet, Chap. XLVII.
THE PRESIDENT'S CABINET
91
action that there is only one course of action open to him.
Congress does not attempt in this extreme manner to dictate
executive action, but that it may do so, if it wishes, is a fact of
vital significance. The departments are regularly consulted
about appropriations for their support, but the estimates sub-
mitted by the departments are in no way binding upon Congress ;
they may or may not be followed. Items may be included in the
appropriation acts, indeed, which are openly disapproved of by
the department heads, as, for instance, in connection with
river and harbor improvements and the free distribution of
seeds by the Department of Agriculture. Attention has already
been called to the fact that the House of Representatives, by
refusing to appropriate the necessary funds, may prevent the
execution of a treaty which has been negotiated by the President
and formally ratified by the Senate.
Another means by which Congress influences the conduct of
the departments is by requiring departmental reports which
are submitted each year at the opening of Congress. These
reports are provided for by the statutes and contain detailed
information concerning the working of the departments. More-
over, frequent requests are made by one or both houses of Con-
gress for additional or special information upon questions in
which Congress is interested. These communications are
sometimes in the form of requests and sometimes in the form
of demands. The President, or the Secretary immediately con-
cerned, under direction of the President, need not comply with
the request if he does not wish to do so ; Congress has no way
to compel him to furnish the desired data. But through these
requests Congress obtains a great deal of information concern-
ing both policies and methods of administration which is of
material assistance in enacting legislation for the departments.
These requests are not always prompted by disinterested
motives ; they are frequently designed to promote the interests
of the party opposed to the President by forcing him to reveal
facts which are considered detrimental to the administration.
Usually, however, they are the result of a desire for information
which is thought to be important and which it is the right of
Congress to have. The resultant publicity is often salutary
in its effects.
Formal investigations furnish another method bv which
92 coMrAi^\'n\i-: free c,o\ernmext
Congress may bring pressure to bear upon the President or
upon any particular administrative officer. The conduct of a
department may be examined critically in this way by an inves-
tigating committee of Congress that has power to summon
witnesses, take testimony, collect documents and obtain all of
the information that it can. Heads of departments cannot be
compelled to appear and give testimony, but they usually do
appear in response to the committee's invitation and give the
information that is sought, if it seems projicr for them to do so.
Investigations of this kind sometimes have a far-reaching etlect
upon the policies of the nation, as was the case in the investi-
gation into the conduct of the Interior Department under
Secretary Ballinger in 1910, concerning the administration of
the public land laws and the government's conservation policy.
Wide publicity is naturally given to the results of such investi-
gations and not only the attitude of Congress, but also the
opinion of the people at large may be determined by them.
The possibility of an investigation of this kind beyond doubt
has a decided restraining influence upon administrative officers.
It tends to make them attentive to the demands of Congress,
and so strengthens the directive power of Congress over them.
The power of impeachment gives to Congress an additional
means of control, but not a very satisfactory one as far as the
ordinary working of the departments is concerned. This power
belongs to Congress by constitutional grant. Impeachment
proceedings may be brought against the President, Vice Pres-
ident, and all civil officers of the United Stales on charges of
" treason, bribery, or other high crimes and misdemeanors."
It is plain that the impeachment process can be emjiloyed only
in case of serious misconduct on the part of the accused officer
anfl that it does not furnish to Congress a serviceable agency
for the control of ordinary administrative activities. Bryce
aptly says that it is the " heaviest piece of artillery in the con-
gressional arsenal, but because it is so heavy ^Jl ''^ unf\[ for
ordinary use. It is like a hundred-ton gun which needs com-
plex machinery to bring it into position, an enormous charge of
powder to fire it, and a large mark to aim at." ' Although it is
a powerful check upon the executive power and may at limes be
' Brycc, "The American Curamun wealth," New and Revised Edition, Vol. I, p.
212.
THE PRESIDENT'S CABINET 93
employed, it is practically worthless as a means of directing
administrative policies. Without its mention, however, any
statement concerning congressional control over executive
officers would be incomplete.
Under the practice that has grown up members of the cabinet
do not speak in Congress or take direct part in any way in its
sessions. This is a matter of custom and not of constitutional
provision. According to the Constitution, no person holding
any office under the United States may be a member of Congress
during his continuance in office, but this provision does not
forbid the heads of departments to appear in Congress and speak
upon questions under consideration. Whether they shall have
this privilege rests with Congress, and Congress has not chosen
to grant it to them. Several attempts have been made, at dif-
ferent times, to induce Congress to admit cabinet officers to
debates upon questions relating to their respective departments,
but without success. In the beginning, when this custom could
easily have been established, Congress was too fearful of ex-
ecutive encroachments upon its power to permit the heads of
departments to appear in either house for the purpose of taking
part in the discussions. It has not seen fit to change its attitude,
notwithstanding the rather widespread belief that benefits
would accrue to the Nation from a closer relation between Con-
gress and the executive departments in matters of legislation.
There is no present indication that Congress is likely to change
its attitude, although it is plainly manifest that executive leader-
ship is rapidly gaining in influence and recognition in the de-
termination of legislative policies. If the actual participation
of cabinet officers in the debates of Congress were the only
means of making this executive leadership effective, it is not
improbable that Congress would be forced to modify its practice,
but other ways of influencing legislative action are open to the
executive authorities.
The Cabinet and Legislation. — ■ The various ways in which
the President may affect legislation have already been described.
It remains to note that cabinet officers are in rather close re-
lation to legislative work through their dealings with members
of Congress and with the congressional committees. All
members of Congress have a good deal to do with the different
departments in looking after the interests of their constituents
94 C0MPARATI\1-: FREE GOVERNMENT
and in the discharge of their legislative duties, and it is usually
desirable, from their point of view, to be on friendly terms with
the department heads. They may wish, for instance, to obtain
information from the departments in preparation for their
speeches before Congress or the committees, or they may seek
poUtical appointments for their friends ; and so, for these and
other reasons, are likely to give heed to cabinet suggestions.
Cabinet members are men of both political and social iniluence,
and members of Congress frequently have need of their help.
With the committees, or at any rate the chairmen of committees,
that have to do with problems relating to their respective de-
partments, cabinet officers are in frequent consultation. They
have no right to demand a hearing before the conmiittees, and
their appearance is always by invitation, but it is hardly prob-
able that a request for a hearing would be denied. Information
which they have is needed bv the committees. Their judgment
concerning legislation alTecting the dei)arlments is usually de-
sired and sought by the committees. So that, notwithstanding
the apparent resentment of Congress as a whole and of its com-
mittees individually, with regard to what is called executive
interference, there is recognition that to a considerable extent
the committees are dependent upon the department oflicials.
The real significance of this is understood all the more clearly
when it is remembered that the bulk of the work of Congress is
done in the committee rooms. The denial by Congress of the
privilege of appearing on I lie lloor of the houses and of sharing
in the formal discussions by no means deprives the Secretaries
of efTective contact with the legislati\e |)rocess. Through their
influence with the committees they play a valuable part in
.shaping legislation. Their relation to the committees is entirely
unoHicial, but it takes the place, in no small degree, of that
official ministerial leadership which characterizes the parliamen-
tary governments, and is a vital factor in the harmoniz-alion of
the legislative and executive departments.
In the discharge of their duties as heads of departments
cabinet ofTiccrs are called ujion to establish many departmental
rules and regulations that have the force of law. The power
they exercise in this is ;i dcjcg.itfcl power, liy statute the head
of each flepartmcnt is aulliori/.cd to " prescribe n-gulations, not
inconsistent with law, for the government of Iiis (icpartnient,
THE PRESIDENT'S CABINET 95
the conduct of its officers and clerks, the distribution and per-
formance of its business, and the custody, use, and preservation
of the records, papers, and property appertaining to it." This
is an important power, particularly in certain departments, to
which special ordinance powers have been given, as, for instance,
the Treasury and Post Office departments, in which a vast
system of regulations must be provided. In making these
regulations the department heads cannot go beyond the power
delegated to them. Within the hmits set, the rules thus pre-
scribed have the full force of law and will be enforced by the
courts. Closely allied to this power to prescribe regulations is
the power to hear cases on appeal from lower administrative
officers and to render final decision.
REFERENCES
Bryce. The American Coinmomvealth, Edition 1910, Vol. I, Chap. IX.
FiNLEY and Sanderson. The American Executive and Executive Methods,
Chap. XVI.
Hinsdale. A History of the President's Cabinet, pp. 1-16, 283-328.
Learned. The President's Cabinet, Chaps. II, III, IV, V, VI, XIII.
CHAPTER IX
The National Administr..\tion
The Nation's administrative work is, for the most part, under
the control of the executive departments, of which there are
ten. Those in charge, usually called Secretaries, are apjwinted
by the President, and are, as already shown, members of the
President's unofficial cabinet. Each receives an annual salary
of Si 2,000. In addition to the regular departments there are
several commissions, to be described later in this chapter, which
are of the very highest importance and whose work rivals in its
magnitude that of the departments themselves.
The department is the largest unit of administration in the
national goverimicnt and is thoroughly centrali/cd in its organ-
ization. It is di\i(k'd into a nunilx-r of sniallc-r administrative
units known as bureaus, which, in turn, are frequently subdivided
into still smaller parts known as divisions. In charge of these
divisions are officers known as chiefs of divisions who arc re-
sponsible to their respective bureau chiefs, who, in turn, are
responsible to the Secretary of the department. Bureaus are
established by act of Congress just as are the departments;
divisions and the smaller units may be established by executive
order. X'arious names are applied to those in charge of the
bureaus, the heads of the most important bureaus being usually
called commissioners, and the heads of the less important ones
being designated simply chiefs of bureaus. Each Secretary or
head of the de|)artment has one or more assistants usually called
assistant secretaries. These officers are the ones with whom the
Secretary has direct dealings and to whom lie looks for thi-
execution of his orders. They in turn act through the bureau
chiefs. There is thus a gradation or hierarchy of ofiu ials cor-
responfling to the units of administration into whi( h the de-
I)artment is divided. Many minor dilTerences e.xisl with regard
to the details of organization in the various departments, but,
90
THE NATIONAL ADMINISTRATION 97
in the main, the outline suggested holds true for all. The
authority of the department centers in the Secretary who is
directly responsible to the President.
At the beginning Congress established only three regular
departments, — State, Treasury, and War. These were created
in 1789, but not by the same act of Congress. The State de-
partment, then known as the Department of Foreign Affairs,
was the first to be established. Then followed the War and
Treasury departments, and soon after the office of Attorney-
General was created. The latter was not at first looked upon as
a department ; in fact, it was not so recognized until 1870 when
the Department of Justice was established, although almost
from the beginning it took rank with the departments, and the
Attorney-General was considered a member of the President's
cabinet. The other departments, established as the need de-
manded, came in the following order: Navy in 1798, Post Office
in 1829, Interior in 1849, Agriculture in 1889, and Commerce
and Labor in 1903. In 1913 the last was divided by act of
Congress, and a separate Department of Labor was created.
The Post Office service, with a Postmaster-General at the head,
was established by the first Congress in 1789, but it was not an
independent department, and for forty years remained as a
branch of the Treasury department. The rapid development of
the Nation, with the resultant enormous increase in adminis-
trative activities by the government, made the establishment of
new departments vitally necessary. In fact, the general devel-
opment of the national life is indicated rather clearly by the
formation of the executive departments. In the beginning the
pressing problems for the new government were those of estab-
lishing satisfactory relations with the Old World countries, pro-
tecting itself against outside aggressions, maintaining law and
order at home, and placing the Nation's finances upon a sound
basis. The first three departments were charged with these
duties, while those established later have been the logical
results of different phases of the national development.
The State Department. — The Department of State tradi-
tionally has been considered the most important of the depart-
ments, and the Secretary of State has from the beginning taken
first rank among the members of the cabinet. He is sometimes
spoken of as the premier of the cabinet, but this is wholly
H
98 COMPAR.\TrV^E FREE GOVERNMENT
inaccurate and implies a position on the part of the Secretary
of State which he does not have. His relationsliip to his associ-
ates in the cabinet is in no sense that of a i)rime minister to his
colleagues. They are in no way officially dependent upon him
either for their positions or their influence. Like him they hold
office at the will of the President. The relation of the Secretary
of State to the President, however, ordinarily has been some-
what difTerent from that of other cabinet members. He has
had greater freedom usually in the control of his department
than any of his associates. This is due to the nature of the
State department's work in connection with foreign relations.
This work requires for its efficient performance the highest
ability, and thorough understanding of international law and
the problems of world politics. It requires familiarity with the
ways of diplomacy and great tact and skill in handling the
many delicate questions of foreign policy that constantly
arise. By no means all of the Presidents have been fitted by
training and character to direct personally the Nation's foreign
policy. Moreover, the pressure of duties in connection with
the domestic administration is usually so great that the average
President cannot give detailed attention to foreign alTairs.
The President, of course, may interfere witli the plans of the
Secretary, or take personal charge of the matter under consider-
ation if he wishes to do so, for the resi)onsil)ility is his and can-
not be shiflefl to any one else. Frequently this is done, and
at times of real crisis in international relations, the strong
President will assume personal direction of the nation's foreign
policy.
The most important duties of the Secretary of Stale are
these in regard to foreign afTairs, although other duties are im-
posefl by law. The negotiation of treaties of all kinds is carried
on through his office. Under his direction is conducted all cor-
respondence with the public ministers and consuls of the I'nited
States and with the rej)resentatives of foreign powers accreditcfl
to the United States. He signs extradition papers for the re-
turn of fugitives from justice, issues passports to cili/ens of
the United Slates, anri, in general, looks after American interests
in foreign cf»untries. I le is assisted in his work by three assistant
secretaries anfl a large clerical force. The work of his depart-
ment is classified and is conducted by a number of separate
THE NATIONAL ADMINISTRATION 99
bureaus, the two dealing with foreign affairs being the diplo-
matic and consular bureaus. The former has charge of cor-
respondence with the diplomatic representatives of the govern-
ment and the latter of correspondence with the consular officers.
The diplomatic service concerns itself with the relations of the
government of the United States to other governments, while
the consular service gives its chief attention to the personal
and commercial interests of American citizens. All of this
work is under the general supervision of the Secretary of State,
who thus has direction over a large number of officials located
in all of the countries of the world. It is unnecessary to elabo-
rate here the functions of the State department with reference
to foreign affairs since the control of foreign relations was dis-
cussed somewhat in detail in connection with the work of the
President.^
The minor duties which the Secretary of State performs are
those which come to him as the medium of correspondence
between the President and the governors of the States and as
the keeper of the seals and the archives of the national govern-
ment. He affixes the Great Seal to the President's proclama-
tions and to important commissions, and to warrants for the
extradition of fugitives from justice. He publishes the laws
and resolutions of Congress, amendments to the Constitution,
and proclamations declaring the admission of new States into
the Union. He is custodian of the laws and treaties of the
United States and is charged with the preservation of the
government archives. These duties are, for the most part,
merely formal. They add Uttle to the influence of the State
department. That which gives it primacy among the executive
departments is the vital importance of the Nation's foreign rela-
tions. The issue of peace or war may hinge upon the judgment
of the Secretary of State and the work of his subordinates.
Financial Administration. — General control of the Nation's
finances is lodged in the Department of the Treasury. Naturally,
then, this department is looked upon as one of the most im-
portant. In rank it is accorded a place next to the State depart-
ment. The age-long belief that the liberties of the people are
involved in the control of the public purse has lost none of its
vitaHty. Because of this belief Congress has sought to retain
' Above, p. 64.
lOO COMI'ARATI\K FREE GOVERXMEXT
power over the Treasury {lei)artmenl to a degree not attempted
in connection with the other departments. The relation of this
department to Congress is, therefore, somewhat different from
that of the other departments. The attitude of Congress is
shown by the acts passed in 17S9 creating the State, War, and
Treasury departments. The Secretaries of State and War
were ordered to " perform and e.xecute such duties as shall
from time to time be enjoined on or entrusted to them by the
President of the United States." Upon the Secretar>' of the
Treasury, however, were imposed certain duties enumerated in
the statute, and, in addition, that of performing " all such
ser\nces relative to the fmances, as he shall be directed to per-
form." But the law does not intimate whether this direction
shall come from the President or from Congress. Moreover,
the Secretary was ordered " to make report and give informa-
tion to either branch of the Legislature, in person or in writing,
as he may be required." * By reason of this last provision
Congress need not address its request to the President, but may
send it directly to the head of the Treasury department.
The general management of the department rests with the
Secretary who has under him three assistant secretaries and a
large number of other departmental officers and employees. The
assistant secretaries are of the same rank and to each is given
supervision of certain divisions in the Secretary's office and other
somewhat independent bureaus. The duties of the department
cover a wide range, some of them being unrelated to fiscal alTairs.
Discussion here will be confined substantially to the collection of
revenue, a function of the highest imjiortance in every Stale.
The collection of revenue involves two important services,
namely, the customs service and the internrd revenue service.
The first has to do with the collection of duties imposed by
law upon imported goods. Such duties have been one of the
chief sources of the government's income. Necessarily, there-
fore, all branches of the government and tin- i)eople generally
are keenly interested in the customs administration. A some-
what complex administrative organization has been evolved,
by congressional acts and executive orders, for the discharge
of this function. The country is divided into collection districts,
with designated ports of entry, at which goods shipjied from
' Hinsdale, " .\ Ilislory of tiic President's Cal)inct." p. 8.
THE NATIONAL ADMINISTRATION lOl
abroad are received. At each port of entry government officers
are stationed, the most important of whom is the collector. At
the larger ports, such as New York or Philadelphia, there are a
collector, surveyor, and naval officer, with a large number of
subordinate employees such as appraisers, inspectors, gaugers,
and clerks. It is the business of these officers to watch the un-
loading of goods, check up the invoices, pass judgment on
quantity and values, and see that the customs laws are enforced.
This is a task of great difficulty, and smuggling is not infre-
quent. General supervision of the customs administration is
intrusted to one of the assistant secretaries who is, of course,
under the direction of the Secretary of the Treasury.
The second branch of the revenue administration is known
as the internal revenue service. This is a regular bureau in
the Treasury department, although its head, known as Com-
missioner of Internal Revenue, is to a large degree independent
of control by the Secretary of the Treasury. The function of
the Commissioner is to enforce the excise or internal revenue
laws as enacted by Congress, the chief taxes collected being
those upon liquors, tobacco, corporations, and incomes. Other
taxes, however, such as stamp taxes of various kinds, are levied
at times to meet a need for greater revenue. To facilitate the
enforcement of the laws the country is divided into internal
revenue districts, but this is done by order of the President and
not by act of Congress, as is the case with the customs districts.
In each district there is a collector, appointed by the President,
and whatever subordinate officers are necessary, the latter being
appointed by the Secretary of the Treasury. To insure ade-
quate enforcement of the laws it is necessary to employ a corps
of internal revenue agents who are directly responsible to the
Commissioner of Internal Revenue and whose duty it is, in the
capacity of detectives, to ferret out and prevent frauds. The
taxes are not levied upon the value of the product, but upon
the amount, and the collection procedure is therefore more
simple than that in connection with customs duties. ]\Ianu-
facturers must purchase government stamps which cover the
amount of the tax. Heavy penalties are imposed upon those
found guilty of selling goods upon which the tax has not been
paid.
In addition to the work of collecting revenue, the Treasury
I02 COMrARATU !•: FREE C.OVERXMEXT
department has important duties in connection with the super-
vision of national banks, the issuance of paper currency, the
coinage of gold and silver, the custody of public moneys, the
auditing of governmental accounts, the administration of the
public debt, and other matters not related to fiscal affairs, such
as the promotion and protection of pubHc health, the construc-
tion of public buildings, and the management of the hfe-saving
service. These non-liscal activities may properly be transferred
to other departments at any time if Congress so wishes.
Departments of War and the Navy. — The problem of
national defense, by authority of Congress and under the direct
control of the President, is intrusted to the Department of War
and to the Department of the Navy. The policy to be pursued
with respect to the strength of the military and naval forces is
exclusively within the control of Congress. The War and
Navy departments can have nothing to say concerning that
except by way of recommendations. Their function is exclu-
sively administrative and is discharged under the direct super-
vision of the President, who, by the Constitution, is made the
commander in chief of all the armed forces. This authority
he holds in times of peace as well as in times of war. lie is
likewise the head of the militia of the States when called into
the service of the Nation. It is for him to say what disposition
shall be made of both land and sea forces. The department
heads through whom he acts are the Secretary oi War and the
Secretary of the Navy. The chief function of each is to see
that the service under his control is well eciuipped, well trained,
and eflicient, to the extent possible under the regulations and
the grants of money made by Congress. The organization of
each department is complex, involving many l)ureaus and divi-
sions, and the employment of a large number of ollicers.
The duties of the Secretary of War are such as are imi)osed
upon him by law or by order of the President. By law he is
re(|uired to prepare estimates of ai)[)ropriations ncc<li<l by the
War department and to look after all expenditures for the
maintenance and operations of the army. Under his sujier-
vision is the United Stales Military Academy at West Point,
the various army posts throughout the country, and all the
military bureaus into which the War d(|»artnunl is divided for
administrative [)urpf)ses. 'I'he Secretary <>f War is usually a
THE NATIONAL ADMINISTRATION 103
civilian, but the heads of the military bureaus are officers of the
regular army. The preparation of plans for the national de-
fense and the mobilization of the army for peaceful maneuvers
as well as for operations in time of war is in the hands of the
General Staff Corps, at the head of which is the chief military
officer known as the Chief of Staff. There is one assistant
secretary to whom the Secretary of War delegates important
functions and upon whom heavy responsibilities are imposed
by law.
The bulk of the work of the War department is naturally
concerned with the administration of the army, but other func-
tions of very great value to the nation have been given it by
law. One of these, involving the expenditure of very large
sums of money, is the construction of river and harbor improve-
ments that have been authorized by Congress. The duty of
examining and passing upon surveys and plans and making
recommendations for improvements is placed upon the Board
of Engineers for Rivers and Harbors, but the actual work of
construction is in the hands of the Corps of Engineers of the
army, at the head of which is the Chief of Engineers. The
primary function of the engineering corps is, of course, to solve
engineering problems which confront the army in time of war,
but to the great advantage and profit of the Nation the skill of
the engineers has been used in the construction of important
pubHc improvements. A striking illustration of this is seen in
the construction of the Panama Canal, one of the world's greatest
engineering achievements. It was only after this huge under-
taking was placed in the charge of the army engineers that satis-
factory progress was made. Splendid results have also been
achieved by the Corps of Engineers in the Philippine Islands in
the construction of roads, bridges, and other pubUc works.
The Department of the Navy, like the other departments, is
divided into a number of bureaus, each with its special field of
work. General control over the department rests with the
Secretary who acts under the direction of the President. There
is one assistant secretary, who, like the Secretary, is a civilian.
The different bureaus are in charge of officers who understand
the technical problems of naval administration.
Administration of Justice. — In a country as large as the
United States, with a government in wliich the courts hold so
I04 COMPARATIVE FRKE GOVERXMKXT
central a place and legal checks are so prominent, the depart-
ment which has in charge the administration of justice is certain
to be of high rank and great practical value. Law is exalted
to a high place in America, as an agency for reform, and is re-
sorted to for all kinds of purposes ; yet, singularly, respect for
the law on the part of the average citizen is far below what it
ought to be. In fact, the positive disrespect for law which is
so prevalent in the United States constitutes one of the Nation's
serious problems. Because of it the administration of justice
is diflicult, whether national, State, or local, and the officers in
charge carry a heavy burden of responsibility.
The branch of the national administration which is imme-
diately responsible for this work is the Department of Justice.
.•\t the head of this department is the Attorney-General who is
the chief law officer of the government. He is legal adviser to
the President and the other heads of departments, and upon
request gives his advice and opinion upon questions of law that
arise in connection with administrative activities. It is his
duty to enforce the laws of the United States, under the direction
of the President, and to represent the government, either in
person or through subordinate officers, in all legal controversies
to which the government is a party. He has general sujK'r-
vision over the Unite<l States attorneys and marshals in the
States and Territories. He is, in short, responsible, under the
President's direction, for the administration of the Nation's
laws as far as court proceedings are essenlial. His work has
steadily increased in importance witli the growth of the Nation.
In view of the complex industrial life that has developed and
the resultant flifficullies with respect to the enforcement of the
corporation laws, no other officer in tlie a(hninistralive depart-
ments holds a position of more \ital consefiui-nce. It is i)lain,
at a glance, that th<- At iorn(y-( Icnc ral inu^t have a great deal
of helj).
First in rank among the .Attorncy-deneral's assistants is the
Soli(itor-(Jeneral. Under the regular |)ractice tiie iWwi duly of
the Solicitor-General is to look after the government's business
before the Supreme Court of the United States. The Attorney-
General may a|)pear in person in such cases, and sometimes in
the more important cases does so, but as a rule argiwnenls before
the Supreme Court on behalf of the govi-rnnunl arc made by
THE NATIONAL ADMINISTRATION 105
the Solicitor-General, with the help of Assistant Attorneys-
General. He is under the direction of the Attorney-General
and may be sent to represent the government in cases pending
in the lower federal courts or even in State courts in which the
interests of the United States are involved. He may also be
called upon by the President and the heads of departments for
legal advice, subject to the approval of the Attorney-General.
Next below the Solicitor-General is an officer known as
Assistant to the Attorney-General, who for the most part has
charge of special cases arising under the antitrust and inter-
state commerce laws. He is under the direction of the Attorney-
General, however, and other duties may be assigned to him as
the latter may desire.
There are, besides, a number of Assistant Attorneys-General
who have important duties to discharge in connection with the
preparation of legal opinions and the presentation of cases before
the Supreme Court and the Court of Claims. It is the func-
tion of these officers to assist the Attorney-General in whatever
ways may be prescribed by him, and hence they may be called
on to help represent the government in any of the courts. In
addition there are assistants known as Solicitors who are assigned
to different executive departments to look after legal questions
that arise. These Solicitors are the chief law officers of their
respective departments, but are under the supervision and
control of the Attorney-General.
To obtain efficiency in its work, the Department of Justice
is divided into a number of smaller administrative units. Of
the officers in charge of these, mention may be made of the
Superintendent of Prisons and Prisoners, to whom is given
supervision of all United States prisons, and the Attorney in
charge of pardons who receives and looks after all applications
for pardon except in military and naval cases. These officers,
of course, are under the direction of the Attorney-General who
is responsible to the President for all that is done.
Department of the Interior. — A branch of the national ad-
ministration which deserves special emphasis, because of the
magnitude of its work, is the Department of the Interior. Its
activities cover a wide range and, as is true of some of the other
departments, deal with a number of wholly unrelated subjects.
The head of the department is known as Secretary of the In-
lo6 COMPARATIVE FREE GOVERNIMENT
terior and has the help of two assistant secretaries and various
commissioners and directors who are in charge of the different
bureaus into which the department is divided. The number
of employees is necessarily very large.
One of the leading functions of the Department of the In-
terior is in connection with the general policy, so vital to the
Nation's welfare, known as the conservation of natural resources.
Immensely difficult problems are involved and the Secretary of
the Interior is necessarily a big factor in their solution. It is
one of his chief duties to help devise methods for the rational
development and use of the Nation's natural resources, and for
the prevention of the exploitation and needless waste which
have been permitted in years past. Much of this work now
centers in the Territory of Alaska, with its wonderful deposits
of coal and the precious metals, and almost hmitless possibilities
of development. At least three of the bureaus of the depart-
ment are directly related to this conservation work, — the
General Land Office, the Reclamation Service, and the Geo-
logical Survey.
The first of these, under the supervision of an officer known
as the Commissioner of the General Land Office, is charged with
the management and disposition of public lands. This involves
a number of duties, such as the issuance of patents for lands,
adjudicating conflicting claims, keeping full records of all
transactions touching public lands, and the general administra-
tion of the land laws. Branches of this office arc maintained
in different States, with agents in charge. Owing to the vast
amount of land which the United States has had in its posses-
sion, and its rapid development under the homestead laws and
other statutes providing for its utiUzalion, the Land Office has
always been of great importance. Though the pubHc domain
is by no means what it used to be, it is still immensely valuable.
Fully a million and a half square miles of public lands are still
held by the government. All of this is under the supervision
of the Land Office except the administration of the national
forests, which is lodged in the Dej)artment of Agriculture.
The Reclamation Service, under the supervision of a Di-
rector, has charge of all the government's work in reclaiming arid
lands through the construction and operation of irrigation
works. Numerous [)rojects of this kind, involving difficult
THE NATIOxNAL ADMINISTRATION 107
engineering problems and the expenditure of large sums of
money, have been undertaken. The satisfactory results at-
tained point to still larger achievements in the years to
come.
Upon the Geological Survey is imposed the duty of classify-
ing the pubHc lands, analyzing their geologic structure, and
determining their mineral deposits. Careful surveys are made,
both topographic and geologic, and detailed statistical infor-
mation is collected and published. This work is considered of
high value, and upon it depends to a considerable degree the
policies of the government concerning the development and
conservation of the public domain.
Among the other unrelated branches of the Interior depart-
ment mention should be made of the Patent Office, the Pension
Office or Bureau, the office of the Commissioner of Indian
Affairs, and the Bureau of Education. The Indians are
the wards of the Nation and the enforcement of the laws for
their protection and for the promotion of their welfare is in the
hands of the Commissioner, who acts under the supervision of
the Secretary of the Interior. The Pension Office passes upon
claims made under the laws enacted by Congress by those who
have served in the army or navy. The work of this bureau is
heavy, though to a large extent ministerial in character. The
amount of money expended for pensions is enormous. In the
fifty years following the Civil War at least four billions of dol-
lars were paid out in this way. The Patent Office is under the
direction of a Commissioner who is in full control of the issuance
of patents and the administration of the patent laws. The
work of this office in the examination of applications for patents
is very heavy. More than 50,000 applications are filed each
year.^ The relation of patented inventions to the industrial
development of the Nation and the growth of industrial monop-
oUes need only be mentioned to indicate the value of good
patent laws and efficient patent administration. The settle-
ment of infringement suits is in the hands of the federal courts,
the Circuit Court of Appeals having final judgment. The
function of the Bureau of Education is largely informational.
It has no administrative authority over school management ;
that lies with the State. Its duty is mainly that of collecting
1 Fairlie, "National Administration of the United States," p. 211.
lo8 COMPARATIVE FREE GOVERN^MENT
and disseminating information for the purpose of promoting
the cause of education.
The Remaining Departments. — The four remaining depart-
ments are those of the Post Ofifice, Agriculture, Commerce, and
Labor. The name of each suggests rather definitely the nature
of its work. The Post Office department is one of the largest
of all and is noteworthy for the manner in which its adminis-
tration has been sacrificed to the interests of the political parties
and the demands of partisan office-seekers. It is in that depart-
ment more than in any of the others that the patronage evil
has been most deeply rooted and has shown its largest fruitage.
For a long time post office positions, however small, were looked
upon as spoils to be awarded to workers in the victorious party
in return for partisan services. In recent years this evil has
been greatly reduced by the extension of the civil service regu-
lations so as to protect a large number of postal employees ;
but the appointment of postmasters in the larger, more im-
portant offices in all the States is still a partisan matter. That
the postal service has suffered greatly from this abuse goes
without saying. Ehmination of partisan administration of this
service is one of the reforms most needed in the United States
and for which a public demand is steadily developing. The
establishment of the parcels post and the possibility of the
government's taking over ultimately the telegraph and telephone
services of the Nation only emphasize the need for thoroughly
efficient administration, free from partisan politics and party
control.
The underlying purposes of the other depart monts men-
tioned are the development and conservation of the great
agricultural resources of the United States; the jjromotion of
her industries and expansion of her commerce; and the protec-
tion anfl advancement of her industrial workers. Within the
province of these dei)artments arc found some of the greatest
problems confronting the American peojile. These include prob-
lems of both wealth jiroduction and wealth distribution; they
involve vital fiuestions of social economy as well as f|Ucslions
of industrial economy. 'I'o tlic solution of Ihcsf tlir Xalion is
devoting earnest thought, and the (leparlnunts iiaiiic(| give
evidence of the national desire to have the govern nun t rcsi)()nd
to the real need^ of the |)cople. These departments, particu-
THE NATIONAL ADMINISTRATION lOQ
larly those of Agriculture and Labor, as they are organized and
actually operate, illustrate well the fact that the functions of
government in a modern democracy multiply rapidly in num-
ber and expand widely in scope, if the common life of the people,
in all of its aspects, receives adequate consideration. Democ-
racy is social, and the general social welfare is its one great
aim.
Interstate Commerce Commission. — In addition to the regu-
lar executive departments, the national administration includes
several independent bureaus or commissions which play a big
part in national affairs. Among these are the Interstate Com-
merce Commission, the Civil Service Commission, and the
Federal Trade Commission. Only brief, general comment upon
the work of these bodies may be given here.
The Interstate Commerce Commission was estabHshed by
Congress in 1887, after many years of agitation for national
regulation of railway rates and service. The action of Congress
was taken under its constitutional grant of power to regulate
commerce among the States and with foreign nations. Before
the Civil War, very little use of this power was made, but fol-
lowing the war, when the United States entered upon a period
of great industrial development and trade expansion, the de-
mand arose and became insistent that the transport companies
engaged in interstate commerce be placed under adequate
national control. This demand was caused by widespread
and flagrant abuses on the part of the railways in granting
rebates and special privileges to favored shippers, in discriminat-
ing among communities and sections, and in charging unreason-
ably high rates for transportation service. Congress was slow
to respond to public sentiment, but finally yielded, and the
interstate commerce act of 1887 was the result. This law has
been amended several times, under pressure of public opinion,
with the result that the powers of the Interstate Commerce
Commission are far more extensive than they were at first.
Its authority over railways and other common carriers is very
great and involves a burden of responsibility such as few of
the other branches of the national administration are forced to
bear.
The Interstate Commerce Commission is composed of seven
members, appointed by the President and confirmed by the
no COMPARATIVE FREE GOVERNMENT
Senate. Each commissioner receives a salary of $10,000 a
year. The law which the Commission administers applies to
all corporations and persons engaged in the transportation of
passengers or property by railway, or by rail and water, from
State to State or to a foreign country, — and to all common
carriers transporting oil or other commodities, except water and
gas, by means of pipe lines, or by means of pipe lines and rail
or water combined. Of course the transportation must be
interstate in character to bring it under the Commission's con-
trol ; intrastate commerce lies within the authority of the
States. By law many restrictions are imposed upon carriers.
Rebates and discriminatory rates among shippers are forbidden ;
all charges for carrying passengers and freight must be reason-
able ; schedules of rates must be kept open to the public ;
changes in rates can be made only after proper notice to the
Commission, which is empowered to suspend increases in
charges pending investigation and to determine whether the
changes shall be made ; granting free transportation, except as
specified by the law, is forbidden ; giving preference to one
locality over another, through discriminatory charges, is pro-
hibited ; detailed annual reports must be made to the Com-
mission according to forms which the Commission prescribes ;
and railway engines and cars must be equipped with certain
safety appliances specified in the law. The enforcement of
these regulations, and others not enumerated, is in the hands
of the Commission. In addition, certain powers are given to
the Commission, and specific duties arc imjiosed ujion it. It
may begin the prosecution of carriers which violate the law,
by requesting the Department of Justice to bring suit. It
may investigate fully the management of carriers coming under
the law, and in doing this may summon witnesses, take testi-
mony under oath, and compel the production of all books and
pa[jers needed in the investigation. It is also authorized to
hear complaints either by or against any carrier engaged in
interstate commerce, to \'\\ rcasonaI)le charges in accordance
with the facts revealed, and to award damages to shij^pers or
other persons injured l)y unlawful acts on llic part of carriers.
In the [)erformance of its \v(jrk, covering ,m) wide a field, the
Commission ref]uires the services of a trained force of investi-
gators, engineers, and accountants.
THE NATIONAL ADMINISTRATION III
In view of the very large railway mileage in the United
States and the enormous volume of interstate commerce trans-
ported every year, it needs no comment to make plain the high
importance of the Interstate Commerce Commission and its
work. The business of transportation is fundamental and the
general industrial prosperity of the Nation is inextricably
bound up with it. The judgments of the Commission are there-
fore of far-reaching influence.
Federal Trade Commission. — The Federal Trade Commis-
sion, estabhshed by act of Congress, began its work in 1915.
It is composed of five members, appointed by the President
with the approval of the Senate. It is an outgrowth of a nation-
wide demand for effective regulation of corporations engaged
in interstate business, and for stringent control of trusts and
monopolies. According to the act creating it, the purpose of
the Federal Trade Commission is to prevent persons, partner-
ships, and corporations engaged in interstate trade from using
unfair methods of competition. If the Commission suspects
that unfair methods are being employed, it may issue a com-
plaint against the person or corporation under suspicion and
hold a formal hearing for the determination of the facts. It is
empowered to issue orders forbidding the practices complained
of unless proper showing is made that the complaint is not well
founded. If an order of this kind is issued and the offender
does not cease the objectionable practices, application may be
made by the Commission to the Circuit Court of Appeals for
the order's enforcement, the judgment of this court being sub-
ject to review by the Supreme Court of the United States.
The Commission, which is a quasi-judicial, quasi-administra-
tive body, is also empowered to investigate the organization,
methods, and management of corporations and their relations
to other corporations and business institutions ; to require the
filing of information concerning their affairs by all such firms
and corporations; and to investigate trade relations with for-
eign countries, and make reports to Congress, together with
recommendations for new and supplementary legislation.
It is plain at a glance that Congress has imposed a heavy
task upon the Federal Trade Commission, — a task which will
grow increasingly difficult with the continued industrial de-
velopment of the United States. At the time the Commission
112 COMPARATIVE FREE GOVERNMENT
was organized there were considerably more than 300,000 cor-
porations, in more than 300 different industries, doing business
in the United States. This number will grow larger, of course,
with the passing of the years, and to prevent " unfair methods
of competition,'.' to say nothing of the other duties imposed, is
a work of enormous difficulty as well as of gigantic proportions.
The Commission represents one part of the Nation's antitrust
policy and of its attempt to maintain competition as an active
force in industry and interstate trade. Its work is closely re-
lated to that of the Department of Justice in the administration
of the antitrust laws. As to the wisdom of Congress in estab-
lishing the Commission, judgment must await future develop-
ments.
The Civil Service. — The third of the independent commis-
sions named above, as deserving special mention, is the Civil
Service Commission, which aids the President in the admin-
istration of the civil service laws. The act creating the Com-
mission was passed by Congress in 1883, after several earlier
but futile attempts at civil service reform and long-continued
agitation. By the terms of the law the Commission has three
members, appointed by the President and confirmed by the
Senate. It is provided that not more than two of these may
be adherents of the same political party. The chief function
of the Commission is the preparation of rules, as the President
may request, for carrying the civil service requirements into
efifect, and exercising general supervision over the work of
examining applicants for ofBce.
The law requires open competitive examinations for testing
the fitness of appHcants for positions in tlie classified service.
This involves the preparation of many different kinds of exam-
inations in order to supply all the administrative offices with
adec|uately trained employees. Any citizen o£ the United States
may try for a position in the federal service. Examinations, of
various kinds antl covering a wide range of subjects, are held
in each State and Territory at least twice a year. These are
in charge of local boards of examiners, of which (here is a large
number throughout the Nation. A chief examiner has his
office at Washington.
The ap[)ointments arc- made from those receiving the high-
est grades in the examinations. According lo the rules in
THE NATIONAL ADMINISTRATION 1 13
force, the Civil Service Commission, when called upon, sends
to the department which is seeking a new employee the names .
of the three highest on the list of applicants for the positions
in the service where the vacancy exists, and from these the
appointment is made. The two remaining names are returned
to the Commission and replaced on its register of candidates.
Before absolute appointment is made, the successful candidate
must serve a probationary period of six months. This pro-
cedure is the one usually observed, but there are provisions
which modify it a good deal at times. For instance, persons
honorably discharged from the military and naval services are
given preference over those who have not served in the army or
nav>^ Also, positions in the departments at Washington are
to be apportioned among the States and Territories according
to population. Such special rules prevent the strict applica-
tion of the merit principle.
Persons holding office under the civil service law are not
exempt from removal. The rule governing removals is rather
vague and capable of abuse. It is that no one may be removed
from a position gained through a competitive examination
" except for such causes as will promote the efficiency of the
service." This means that the President or the head of a
department, as the appointing officer, may remove any civil
service employee on grounds of incompetency.
The number of positions in the federal executive service is
very large. On June 30, 1914, there were more than 482,000
of these, of which more than 292,000 were in the classified serv-
ice, subject to competitive examinations. The number of
positions protected by the merit rule has increased rapidly in
recent years. The act of 1883 by its own terms placed only
a few offices in the classified service, but provided for its exten-
sion by executive, order. Of course Congress may extend the
scope of the law — or limit it — as it sees fit. It is largely
through executive orders, however, that the development has
occurred. It can hardly be said that Congress has at any time
been zealous in its advocacy of civil service reform.
It requires no very intensive study of the civil service system
in the United States to see that it is a far from perfect system.
The spoils idea is still rather deeply rooted in American politics.
The claims of party workers are frequently given recognition
114 COMPAR-VnVE FREE GOVERNMENT
at the expense of administrative efficiency. Yet improvement
in the personnel of the administrative departments, as well as
in administrative organization and methods, is slowly taking
place; and it may be assumed that, as the citizenship of the
Nation becomes more enlightened and more alive to the re-
sponsibilities involved in democracy, great advance will be
made toward the goal of administrative efficiency. It may not
be too much, perhaps, to anticipate the time when there will
be full protection of the administration against the spoilsman
and the office-seeking politician who subordinate the public
interest to private gain.
That this condition, greatly to be desired, does not exist,
however, is a fact too plain to be overlooked by even the super-
ficial student of American government. The work of adminis-
tration has not been taken seriously by the people generally;
its high importance has not been understood. The need for
trained, efficient administrators, free from partisan selection
and partisan control, has been only slightly felt. Indeed, the
very idea of a permanent, expert service is abhorrent to the
minds of many Americans. The traditional view has been that
any person who can win an election or obtain an appointment
to a public office is as good as another for the discharge of its
duties. Proven ability to do the work demanded has not been
considered essential. Success and zeal as a party worker have
been placed before fitness and capacity. The general results
have been weakness in administrative organization, inferior
administrative methods, and low standards of public ser\ice.
Because of the failure to emphasize the high value of eificient
administration by trained officers, the Nation finds itself un-
able, as yet, to cope with some of the great social and industrial
questions which face it. 'I he consequence is that the cause of
real democracy suffers and the Nation's progress is retarded.
One of the fundamental needs in the United States, perhai)s the
greatest need, is a realization of the weakness of the government
from the stanrlpoint of atlministration, and the attainment of
genuine efficiency through thorough administrative reorganiza-
tion and reform.
THE NATIONAL ADM1NISTR.\TI0N 1 15
REFERENCES
Beard. American Governmcnl and Politics, Edition 1914, Chaps. XI, XVI,
XVII, XVIII, XIX.
Fairlie. National Administration of the United States.
FiNLEY and Sanderson. The American Executive and Executive Methods,
Chap. XX.
Hart. Actual Government, Chap. XVI.
Reinsch. Readings on American Federal Government, Chap. IX.
Young. The New American Government and its Work.
CHAPTER X
The Congress — General Observations
The legislative power of the Nation is vested in the Congress,
composed of two houses, the Senate and the House of Repre-
sentatives. This power is limited ; that is to say, the field of
action belonging to Congress is limited to those powers which are
specifically conferred by the Constitution or are necessarily
implied. But as previously pointed out, in discussing the rela-
tion of the States to the Nation, the power of Congress within
the sphere assigned to it is absolute. Its powers are found
within the four corners of the Constitution as interpreted by
the Supreme Court, but in the use of the powers thus derived
it is without restraint, except as restrictions may be imposed by
the Constitution itself. The most fundamental fact, however,
is not the plenary character of the powers which have been
granted to Congress, but the definite limitation of its juris-
diction. It is in no sense a sovereign body, and is therefore
radically different from the English Parliament upon which it
was, in part, modeled. It may act only when the right to act
has been conferred upon it by the Constitution, and if it goes
outside the limitations prescribed, its act is without validity.
The legislative department is not superior to the executive
and judicial departments, but is in theory coordinate with
them. The extent to which Congress is in practice subject to
the judiciary will be discussed later in connection with the
[)ower of the courts.
The Powers of Congress. — Notwithstanding the constitu-
tional limitations upon Congress, its authority is very great anri
extends to a number of questions that arc of sui)reme conse-
quence to the entire Nation. The Constitution confers upon
Congress the power to lay and collect taxes and uniform duties,
imposts and excises; to pay the debts of the Nation and i)ro-
vi(le for its ctjmmon defense and general welfare; to borrow
ii6
THE CONGRESS 117
money ; to regulate commerce among the States and with
foreign nations ; to establish uniform bankruptcy and naturali-
zation laws; to coin money and regulate its value; to protect
the Nation against the counterfeiting of its coin and securities ;
to fix the standard of weights and measures ; to establish post
ofiices and post roads ; to enact patent and copyright laws ;
to constitute courts inferior to the Supreme Court ; to define
and punish piracies and felonies committed on the high seas,
and offenses against the law of nations ; to declare war ; to
provide and maintain an army and a navy and to make rules for
their government ; and to make all laws necessary and proper
for carrying into execution the enumerated powers and all
other powers vested by the Constitution in the United States
or in any of its officers or departments.
In exercising some of its powers Congress is subject to cer-
tain limitations, as, for instance, duties and excises must be
uniform throughout the United States ; and in regulating in-
terstate commerce preference shall not be given to one State
over another. Moreover, as stated in Chapter I, Congress
is subject to a number of absolute prohibitions. The powers
granted to Congress are far-reaching, however, and have be-
come increasingly so with the rapid development of the United
States in an industrial and commercial way. National author-
ity touches the individual citizen far more frequently now than
when the government was established. Yet it is to be remem-
bered that Congress has very little to do with the general civil
law of the land. That is almost wholly under the control of
the States. " While Congress, in the exercise of such powers
as that to regulate interstate commerce, may originate rules
by which people in general are bound in their business relations,
such action does not constitute a large part-of its work, and its
legislation is ordinarily regulative of governmental agencies,
or in other words, administrative." ^ That is to say, questions
of administrative organization and policies chiefly occupy the
attention of Congress. " The chief business of Congress is the
appropriation of money for the work of the various depart-
ments of government, the providing of ways and means to
meet this expenditure, the creation of new administrative agen-
cies, the maintenance of the national defense on land and sea,
1 Reinsch, " American Legislatures and Legislative Methods," p. 3 ;.
Il8 COMPARATIVE FREE GOVERNMENT
the control of the various wards of the nation — the Indians
and the people of the territories and dependencies — the regu-
lation of economic activities as far as they form part of inter-
state commerce, and the administration of what remains to the
United States government of natural wealth in forests and other
public lands." ^
The Sessions of Congress. — Congress must assemble at
least once each year, the time of the meeting, as prescribed in
the Constitution, being the first Monday in December. Con-
gress may appoint another day, however, if it wishes to do so.
During the two-year life period of each Congress, therefore,
there will be held at least two sessions. One is known as the
long session and the other as the short session. The long ses-
sion is the first regular session of a new Congress and begins at
noon on the first Monday in December of each odd-numbered
year and continues until well along in the year following. No
definite time is prescribed for the adjournment of this session.
Congress may bring it to an end at any time which the two houses
may agree upon. Usually adjournment takes place about the
middle of the year. It is possible, however, for the long session
to continue a full year; that is, until the first Monday in De-
cember of the even-numbered year when the short session
begins. The latter has a definite life period. It must close
at noon on the fourth of the following March, when the two-
year period which constitutes the full life of a Congress comes
to an end.
Special or extraordinary sessions of Congress, or of either
house, may be called by the President at his discretion. Special
sessions of the Senate have frequently been held. The purpose
of such sessions is to pass upon apjMiintments to oflicc or treaties
submitted by the President. The House of Representatives
has never been called in extraordinary session. There is no
reason why it should be, since there is nothing that the House,
acting alone, can do, except vote impeachments.
All bills and resolutions pending at the close of a short ses-
sion, that is, at the close of a Congress, lapse or die. The legis-
lative slate is wiped clean, and if these measures are to receive
further consideration, ihey nuist be reintroduced into the next
Congress and started along the regular course prescribed by
' Kcinsdi, " American Legislatures and I.eKislativc Methods," p. 34.
THE CONGRESS II9
the rules. In the case of the long session, or a special session,
pending measures do not lapse, but* retain their legislative
status in the session following. The slaughter of unpassed
measures caused by the expiration of a Congress is sometimes
very great. Owing to the large number of bills and resolutions
introduced during the two-year life of a Congress, running from
twenty to thirty thousand, there is always a great congestion
of work in the closing days. As a natural result, oftentimes,
measures of much concern to the Nation are lost in this way,
with a resultant delay that may be not only objectionable but
costly as well. And measures that are passed in the rush of the
last days, it should be noted, are likely to prove defective both
with respect to content and form. One of the serious problems
always confronting Congress is found in the huge mass of pro-
posed legislation that is always pending.
Election and Qualifications of Members. — The control over
the election of members of Congress is in practice divided be-
tween Congress and the State legislatures, though the ultimate
authority rests with the former if it chooses to use its power.
The provision of the Constitution is to the effect that the times,
places, and manner of electing members of Congress shall be
prescribed by the legislatures of the States, but that Congress
may alter such regulations or make rules of its own, except as
to the places of choosing Senators. The restriction contained
in the last clause was made necessary by reason of the fact that
Senators were to be elected by the State legislatures which
would always meet at their respective State capitals. Now
that Senators are chosen by popular vote, this restriction is
without force. By act of Congress the election of Representa-
tives for many years has occurred on the first Tuesday after
the first Monday in November of the even-numbered years,
except where a different date has been fixed by a State law
enacted prior to the law of Congress. Since the adoption of
the seventeenth amendment Senators are elected at the same
time as Representatives, whenever vacancies in the Senate
are to be filled. It will be noted that in presidential years,
the time of election of members of Congress coincides with
that of the President. As illustrations of the general super-
vision Congress exercises over the election of its members may
be cited the act of 1842, by which single-member districts
I20 COMPARATIVE FREE GOVERNMENT
are required for the election of Representatives, and the act
of 1872, by which written or printed ballots must be used in
these elections. The granting of suffrage rests with the States,
as, for the most part, does the regulation of voting. With re-
spect to the latter, however. Congress may have a good deal
to do through its power to provide for the purity of congres-
sional elections. The right of Congress to impose and enforce
penalties for fraud and delinquency in such elections has been
clearly upheld by the Supreme Court. ^
By the Constitution each house is made the judge of the
" elections, returns, and qualifications of its own members."
It is for each house to say whether its members are rightfully
entitled to their seats. Charges of corruption or ineligibility
are sometimes made against persons claiming seats in one house
or the other, and are considered at great length. In the Senate,
two of the best known recent instances are the cases of Reed
Smoot of Utah and William Lorimer of Illinois. Attempt was
made to prevent Smoot, an apostle of the Mormon church,
from taking his seat on the ground that he was a polygamist.
After a long investigation, the Senate recognized his right to
membership. In the case of Lorimer grave charges of corrup-
tion were made in connection with his election by the Illinois
legislature, and finally substantiated to the satisfaction of the
necessary majority of Senators. By formal vote he was ex-
pelled from ihe Senate and his place declared vacant.
Likewise, in the lower house the validity of the election of
members is frequently questioned for one reason or another.
Contests by rival claimants to positions are common. The
charge may be fraudulent voting, error in counting the ballots,
or other delinquency on the part of election oflicials. In such
case one of the House committees on elections makes the neces-
sary investigation, reports its findings, and by vote of the House
the dis[)ute is settled. Inasmuch as the contestants are always
party oj»ponenls, there is good opportunity for party spirit to
show itself. It is interesting, at least, to note how frequently
contests are decided by a substantially strict party vote.
In 1900 a case arose similar to that of Smoot in tlic Senate.
The right of Hrigham If. Roberts of Utah to sil in the House
was challenged on Ihe ground that he was a polygamist. After
' Ex parte Sicbold, 100 U. S. J71 (1880).
THE CONGRESS 121
a long and bitter controversy he was excluded by vote of the
House, upon the recommendation of the majority of the com-
mittee to which the matter had been referred for investigation.
The constitutionahty of such action, however, is doubted by
many. The question involved is as to the right of either house
to add to the qualifications for membership which have been
fixed in the Constitution. In the Roberts case the House of
Representatives did this, whereas in the Smoot case the Senate
refused to do so. Professor Beard says that the correct answer
to this constitutional question seems to have been made by
Senator Hopkins in his discussion of the Smoot case. " Mr.
Hopkins says that neither the Senate, Congress, nor a state
can add to the quaHfications prescribed by the constitution;
that the power given to the Senate is not to create Senators, but
to judge whether they have the qualifications prescribed by the
constitution; that the Senate has no constitutional authority
to inquire into the antecedents and early career and character
of a Senator who applies for admission with the proper creden-
tials of his state ; that no Senator has ever been denied a seat
in the Senate of the United States because of any lapse of career
prior to his election by the state ; and that the Senate should
content itself with the exercise of its power to expel a member
for disorderly behavior whenever his conduct is such as to lower
the standard of that body or bring it into disrepute." ^
Control over Rules of Procedure. — Each house has authority
to determine its own rules of procedure, except with respect to
a few things. By provision of the Constitution a majority
in each house is constituted a quorum to do business, although
a smaller number may adjourn from day to day and may be
authorized to compel attendance of absent members. Each
house is required to keep a journal of its proceedings, which
shall be published from time to time. Publication is not re-
quired, however, of those parts which in the judgment of the
house require secrecy. At the request of one fifth of those
present, the yeas and nays of the members of either house on
any question shall be entered on the journal. This is an im-
portant rule, particularly from the standpoint of those who are
in the minority upon any question. Neither house, during a
session of Congress, can adjourn for more than three days with-
• Beard, "American Government and Politics," New and Revised Edition, p. 240.
122 COMPARATIVE FREE GOVERNMENT
out the consent of the other, nor can it adjourn to any other
place than that in which the two houses are sitting.
Under this authority to determine in general their own pro-
cedure, complicated systems of rules have been established in
both the Senate and the House of Representatives. In each
the rules as they are to-day have been slowly evolved. They
have been added to, and modified from time to time, to meet
new needs and changed conditions. As the business of Con-
gress has increased in bulk and in difficulty, the rules have
grown in number and in complexity. They are a logical out-
growth of legislative conditions. In the Senate the rules
continue in force until changed, inasmuch as the Senate is a
continuous or permanent body. But in the House of Repre-
sentatives a body of rules is adopted at the beginning of each
new Congress. It will be understood that the entire membership
of the House changes every two years and therefore a new House
must adopt its own set of rules. The usual thing is for the
House, when it assembles, to adopt the rules of the last one, and
continue them in force with few, if any, changes. Some of the
chief dilTerences between the procedure in the Senate and that
in the House will be noted later in the detailed discussion of
the two houses.
Compensation and Privileges of Members. — The compen-
sation of its mcmljcrs is fixed b}' Congress itself. There is no
constitutional limitation upon its power in this regard. Public
opinion, however, is a powerful restraining influence in keeping
congressional salaries at a reasonably low sum. Before 1855
members were given a per diem allowance. By an act of that
year a salary system was established, the sum allowed being
$,^5000 per year. In 1S65 this was increased to $5000, which
continued to be the sum paid until 1873, when it was raised to
S7500. 'I'he terrific public protest which followed the enact-
ment of this " salary grab " measure, as it was called, caused
its rcjK-al at the next session of Congress.' The $5000 salary
was restored and continued in force until igoy when it was
again increaserl to $7500, whicli is the sum at present received
by both Senators and Representatives, fn addition there is
' The measure was thus charactcrizcil hecausc by its terms the iTUTease<l compen-
sation was K'ven to the members of the Congress which enacted it; whereas, the
law of I go? was made to ajiply only to future Congresses.
THE CONGRESS 123
an allowance for mileage, of twenty cents per mile, clerk hire,
and stationery.
In accord with the practice of the English Parliament and
other legislative bodies, members of Congress enjoy certain
personal privileges. By provision of the Constitution they are
in all cases, except treason, felony, and breach of the peace,
exempt from arrest while attending sessions of their respective
houses and in going to and returning from the sessions ; and
cannot be questioned for any speech or debate in either house,
except by the authority of the house itself. This exemption
from arrest, however, does not confer as great a privilege as
might appear at first glance. Freedom from criminal law pro-
cesses is really not granted. " The object of the privilege from
arrest is to exempt members from being interfered with by
judicial procedure while in the discharge of their duties. At
other times and in other respects they are subject to the juris-
diction of the courts as fully as private persons. Indeed, the
exemption is of little practical value, as arrest or seizure of the
person is no longer generally authorized except for crime, and
all crimes of a serious nature are included within the descrip-
tion of treason, felony and breach of the peace." '
The other privilege, which carries freedom from legal account-
ability for what members say and do in the discharge of their
legitimate duties, is of more obvious value. Action for libel
or slander cannot be brought for anything said in Congress.
This privilege extends to the committee rooms and all official
pubUcations, as well as to the proceedings of the Senate or
House. Undoubtedly its influence is wholesome, although
at times the privilege may be abused. It is clearly based upon
the English practice, whose original purpose was to protect
members of Parhament against arrest for criticism of the mon-
arch. The protection afforded Senators and Representatives,
however, is not against monarchs, but constituents.
One important restriction is imposed by the Constitution
upon members of Congress in the provision that " no Senator or
Representative shall, during the time for which he was elected,
be appointed to any civil office under the authority of the United
States, which shall have been created, or the emoluments whereof
1 INIcClain, " Constitutional Law in the United States," Second Edition, pp. 69-
70. See also Williamson v. Uniied States, 207 U. S. 425 U9o8)-
124 COMPAR.\TIVE FREE GOVERNMENT
shall have been increased during such time ; and no person hold-
ing any office under the United States shall be a member of either
house during his continuance in office." A recent illustration
of the effect of the first part of this provision is found in the case
of Senator Knox of Pennsylvania who, when he became Secre-
tary of State under President Taft in 1909, could not receive
the regular compensation of cabinet officers because only a short
time before, as a member of the Senate, he had voted to increase
the salaries of heads of departments from $8000 to $12,000.
After the term for which Mr. Knox had been elected to the
Senate had expired, he came in for the higher salary. It is to be
noted that this restriction applies only to appointments to " civil "
offices. It does not prevent the appointment of a Senator or a
Representative to a position in the military or naval service
which was created or whose salary was increased while he was a
member of Congress. Of course, by the second part of the
provision quoted, he is barred from holding both offices at the
same time. An interesting instance of an attempt to hold two
offices is cited by Professor Beard. A Representative from New
York " was appointed major of the militia under the authority
of the United States in the District of Columbia, and the com-
mittee on elections in the House declared by unanimous vote
that by his acceptance he had forfeited his seat." '
It has been held that this constitutional restriction does not
apply to members of commissions appointed to make investiga-
tions and negotiate treaties, as, for illustration, was done in con-
nection with the treaty of peace with Spain in 1898. The prac-
tice of appointing members of Congress to commissions created
for various purposes has become common, and the question has
frequently arisen whether such appointments are permissible
under the Constitution. The answer of Congress, which by
common consent is to be taken as correct, is that they are
l)ermissible. The judiciary committee of the Senate in passing
upon the point decided that " a member of a commission created
by law to investigate and report but having no legislative,
judicial, or executive powers, was not an officer within the mean-
ing of the constil ulional iiiliihil ion." -
' Heard, "Amcri( an (JoNcrnment and I'olitics," New and Revised Kdilion, p. 233.
2 Hinds, "Precedents," Vol. I, p. 604. Quoted in Beard, "American Gov-
ernment and Politics," p. 234.
THE CONGRESS 125
Theory of Representation. — It is essential to note the charac-
ter of the representation afforded by Congress. As far as the
theory of the written Constitution is concerned, members of
Congress are in no sense to be looked upon as delegates of the
people. They are representatives, charged with the legislative
function. The Senators are elected by the voters of the States
and the Representatives by the voters of districts within the
States, but there is no constitutional method by which their
constituents can give them instructions and see that these in-
structions are carried out. The voters have no grip upon them
after they are once elected. As far as their constituents are
concerned, members of Congress, during their term of office,
may do as they please. It is only in case they seek reelection
that the voters have the chance to punish or reward. They
possess unlimited power of representation. As Professor Ford
puts it, for the purposes of government they are the people
themselves and it was to " protect them in the complete exercise
of this representative capacity " that the Constitution provided
that " for any speech or debate in either house they shall not be
questioned in any other place." ^
It was not a government by the people, therefore, that was
set up by the Constitution. Government controlled by public
opinion was far from the original intention. Democracy was not
a favored type of government at the time the Constitution was
formed. " The desire was not to enable the people to control
the government, but to enable the government to control the
people." -
Here again, however, the working constitution of the present
day differs a good deal from the written document. Members
of Congress now, under the party system, are not representatives
in the strict sense planned for by the constitution makers. They
bear the character of delegates to a greater or less degree. They
are, in fact, more or less definitely restrained and controlled
by public opinion. Legally they are independent of such con-
trol ; actually they are held in check by it. In the Nation, as
well as in the States, democracy has gone forward with tremen-
dous strides since 1787. Particularly in recent years has the
advance been rapid. The actual constitution is clearly under-
going important changes. Whatever the legal authority of
1 Ford, "Rise and Growth of American Politics," p. 63. "^ Ibid., p. 64.
126 COMPARATIVE FREE GOVERNMENT
Senators and Representatives may be, the will of the people,
the power of public opinion, can no longer be ignored. There
is slowly being evolved an unwritten constitutional requirement
which imposes upon members of Congress a direct responsibility
to the people and which binds them by unseen, intangible bonds
to carry out the pubUc will. Constitutional forms are the same,
but the spirit is changing. For good or for ill, the Nation is
moving on toward a larger and ever larger democracy.
REFERENCES
(For References, see Chaps. XI and XIII.)
CHAPTER XI
The Senate
The Senate is the smaller and in many respects the more
interesting as well as the more powerful of the two houses of
Congress. In organization and procedure it differs radically
from the House of Representatives. Moreover, its constitu-
tional position is somewhat peculiar inasmuch as it exercises
executive and judical functions as well as legislative, notwith-
standing the general acceptance and application of the separa-
tion of powers theory. It has, perhaps, maintained the position
and powers assigned to it by the Constitution more successfully
than has any other branch of the government. Beyond doubt,
in spite of many shortcomings, it has proven itself one of the most
efficient parts of the governmental machine.
The Senate consists of two Senators from each of the States,
its membership numbering ninety-six. To be eligible for the
Senate a person must be thirty years of age, an inhabitant of
the State from which he is chosen, and have been a citizen
of the United States for at least nine years. The term of office
is six years, one third of the Senators being chosen every
two years, thus making the Senate essentially a permanent
body. The salary is $7500 per year. In addition each mem-
ber is given mileage and an allowance for clerk hire and for
stationery.
The method of choosing Senators prescribed by the Constitu-
tion and followed without change until the adoption of the seven-
teenth amendment in 1913 was election by the legislatures of
the various States. Under the seventeenth amendment election
is by direct vote of the people of the States. The framers of
the Constitution were unwilling to have both branches of the
national legislature chosen by popular vote, just as they were
unwilling to provide for the popular election of the President.
It was their belief that one branch of Congress, at least, should
127
128 COMPARATIVE FREE GOVERNMENT
be elected by an indirect method so that it would not be subject
to popular clamor and violent changes of public sentiment, and
thus would be free to stand out against hasty and ill-advised
action by the direct representatives of the people in the other
house. The Senate was to be the conservative element in legis-
lative action. It was designed to be, in part, a check upon the
House and serve as a sort of balance wheel* to keep the legis-
lative machine running smoothly and at a reasonable speed.
It was designed, also, to be a check upon the President, and
thus help protect the government from executive encroachments.
By giving to the State legislatures the right to select the Sena-
tors it was believed that the Senate would be composed of men
who were carefully chosen with respect to their ability, patriot-
ism, property, and freedom from radicalism and dangerous popu-
lar control. With men of this character in the Senate the
danger of excessive democracy, anticipated in connection with
the House of Representatives, and the danger of monarchic
power, feared in connection with the presidency, would alike
be minimized.'
Furthermore, it should be kept in mind that the whole plan
of the Congress, as it was finally worked out, was the result of
a compromise between antagonistic elements in the constitu-
tional convention. There was a great deal of jealousy among
the States. Particularly was this shown in the constant bicker-
ing between the small and the large States. The former sought
to have all the States equally represented in both houses of
Congress, regardless of size and population. The latter sought
to have the representation in both houses based on population,
thus giving absolute popular control of Congress. The question
was del)ated at great length, but neither side would yield its
position entirely, and a compromise was the result. Equal
representation of the States in the Senate, without respect to
population, and unequal representation in the House based on
population, were provided for. Thus each of the States was
given two Senators, but their rei)resentalic)n in thi' lower house
in the first Congress varied from one to ten. With the great
increase in population since that time the variation has become
much larger, ranging from one to thirty-seven In jqi2.
' For a discussion of the aims of the Senate as intended l\v the framcrs of the
Constitution, see The Federalist, Nos. 62-66.
THE SENATE 129
Representation of States and Sections. — One other fact of
great significance should be noted in connection with the com-
position of the Senate. It was designed to represent, not the
people of the States, but the States as such, that is, as political
entities. It was intended to be a kind of Council of States,
whose members should owe their election to the controlling ele-
ment in the State governments, namely, the legislatures and
not directly to those exercising the right of suffrage. This was
the constitutional theory upon which the Senate was based
until the adoption of the amendment providing for the popular
election of Senators. In the actual work of the Senate the
theory has been of little consequence, since the voting in the
Senate has not been by States. By the Constitution each
Senator is given one vote and it not infrequently happens that
the Senators from a State vote on opposite sides of a question,
thus canceling their votes and, as far as the voting itself is
concerned, depriving their State of any real part in the deter-
mination of the question in hand. To a large extent this is
due to the conflicting interests of the political parties. A State
is likely to be controlled by one party at one senatorial election
and by another party at the next ; hence upon almost all party
questions the votes of the Senators from that State would
cancel each other. Upon a great many questions, however,
party lines are not followed, and it frequently happens that
Senators of the same party vote against each other. It is clear,
therefore, that this theory of the Constitution — that the Senate
represents the States as governmental organizations and not
the people of the States — has little practical effect. More-
over, experience has shown that the jealousy of the small States
against the large, as revealed in the constitutional convention,
was really without foundation. They have not at any time
been in danger. Sectional interests have frequently caused the
Senators from a number of States to act together, but in this
large and small States have been influenced alike ; in no in-
stance have the former combined against the latter. With the
adoption of the seventeenth amendment this old theory was in
eft'ect abandoned.
Of greater interest and importance than this theory of the
representation of States is the fact which President Wilson so
forcefully points out, that the thing which gives the Senate
130 COMPARATIVE FREE GOVERNMENT
" its real character and significance as an organ of constitu-
tional government is the fact that it does not represent popula-
tion, but the regions of the country, the political units into
which it has, by our singular constitutional process, been cut
up. The Senate, therefore, represents the variety of the nation
as the House does not. It does not draw its membership chiefly
from those parts of the country where population is most dense,
but draws it in equal parts from every state and section." ^
The artificial character of many of the States, says this eminent
authority, the fact that they are not " real communities, with
distinct historical characteristics, a distinct social and economic
character of their own, as most of the older states are," is not of
material consequence.- The principle which is of really great
importance is that " regions must be represented, irrespective
of population, in a country physically as various as ours and
therefore certain to exhibit a great variety of social and eco-
nomic and even political conditions. It is of the utmost im-
portance that its parts as well as its people should be repre-
sented ; and there can be no doubt in the mind of any one who
really sees the Senate of the United States as it is that it repre-
sents the country, as distinct from the accumulated population
of the country, much more fully and much more truly than the
House of Representatives does." ^ Due to the concentration
of population in certain sections, the House of Representatives
does not represent the Nation as satisfactorily as it once did.
It tends to represent " particular interests and points of view,
to be less catholic and more and more specialized in its view of
national affairs. It represents chiefly the East and the North.
The Senate is its indispensable offset, and speaks always in its
make-up of the size, the variety, the heterogeneity, the range
and breadth of the counlry, which no community or group of
communities can adequately represent. It cannot be repre-
sented by one sample or by a few samples ; it can be ro]:)rcscnted
only by many, — as many as it has j^arts." '
Results of Indirect Election. — The hopes of the constitution
makers with respect to the method of choosing Senators have
by no means been realized. Tiir Slnlc legislatures have not
acted from the motives and in the manner anticipalcfl. The
' Wilson, "Constitutional (lovcrnim iiL in liie United Stales," p. 11.1.
''Ibid., p. 115. ^lOid., I). iiO. '^Ibid., p. ii7-
THE SENATE 131
personnel of the Senate has by no means been always of the
character desired by the framers of the Constitution. For the
most part this has been due to party interests and influence.
Places in the Senate, next to the presidency itself, became the
great prizes for which party leaders struggled. The control
of the Senate has almost from the beginning been one of the
great objectives of the leading parties. The result has been
that usually the election of a Senator was the occasion for a
bitter party struggle over the choice of members of the State
legislature, in which the function of the legislature as a depart-
ment of the State government was lost sight of and the local
interests of the State were sacrificed. Very frequently the con-
tests over the senatorship were long drawn out, lasting many
weeks, to the serious detriment of the regular work of the legis-
lature. Sometimes deadlocks occurred and the legislatures
were unable to elect. The results of these long-continued
contests were naturally bad. Not only were the States in which
they occurred for the time deprived of their full representation
in the Senate, but abundant opportunity was afforded for
corrupt practices on the part of dishonest party leaders and the
representatives of big business interests seeking control over
congressional legislation. Some of the most notorious political
scandals in the country's history have grown out of deadlocks
in senatorial elections. As a consequence of this system of
election, as might be expected, men have sometimes acquired
places in the Senate who were unworthy of positions of such
high honor and vast influence. Inevitably the Senate lost
standing in the eyes of the people and the belief grew strong
that a change in the method of choosing Senators was neces-
sary. The outcome of the agitation, which continued through
many years, was the seventeenth amendment. Whether the
general character of the Senate as a legislative body will be im-
proved by the system of popular election, time alone can tell.
The growing spirit of democracy made the change inevitable,
sooner or later. But whatever the ultimate effect may be upon
the Senate, senatorial deadlocks with their peculiar evils and
dangers are things of the past. And perhaps more important
still, the legislatures of the States are now free from any official
connection with national politics and may, if they choose, devote
themselves exclusively to State affairs.
132 COMPAR.\TIVE FREE GOVERNMENT
The point of the last statement deserves special emphasis
for the method of electing Senators by State legislatures has
tended, under the party system, to paralyze the political life of
the States. That is, it has not been possible for the people of
the various States to divide upon local and State questions and
settle them upon their merits, because all the time the partisan
demands of national politics interfered. In choosing members
of the State legislatures, the voters almost always had to keep
in mind the choice of United States Senators. As a result, not
infrequently there was a conflict of interest under which the
voter must sacrifice his convictions either upon vital questions
of State policy or upon the election of Senators. Moreover, in
order to maintain the vast party organizations and keep them
in good running order, practically all local and State offices,
however insignificant, have been made the objects of partisan
contests. Thus the control of town, township, county, city,
and State governments alike have been hopelessly bound up
with the control of national politics. This was not what the
framers of the Constitution either desired or expected ; quite
the contrary, in fact. But it was inevitable under the consti-
tutional requirement that Senators be chosen by the State
legislatures. The breaking of this tie between the State and
national governments by the seventeenth amendment makes
possible the growth of State political parties and the develop-
ment of real State politics. The ultimate effect should be whole-
some. It has opened the way for real progress by the States.
The Senate's Organization and Committees. — In a general
way the organization of the Senate is similar to that of the
House of Representatives, although there are points of differ-
ence which are of great importance. By provision of the Con-
stitution the Vice President of the United States is the Senate's
[)residing officer, bearing the title. President of the Senate.
He has no vote upon pending questions except in case of a tie,
when he may cast the deciding vote. Now and then this con-
stitutional privilege has been of real conseciuence and has en-
abled the Vice President to have an important i)art in the action
of the Senate. Ordinarily, however, he has little to do with
(he course of legislation except as he may have personal in-
fluence with individual Senators. As presiding officer of tfie
Senate he is purely a ])arliamenlary olficer and is sui)|)ose(l to
THE SENATE 1 33
be entirely impartial. His position is one of great dignity and
high social standing, but of insignificant powers.
All the other officers are chosen by the Senate. These in-
clude the president pro tempore who presides in the absence of
the Vice President, the secretary, chief clerk, legislative and
reading clerks, sergeant-at-arms, doorkeeper, and all the many
assistants to these officers whose employment is made necessary
by the pressure of the Senate's work. In the appointment of
these officers party lines are observed. All the higher positions
are held by men who are members of the party that is dominant
in the Senate ; many of the less important places are by com-
mon practice given to the minority party. Some of them pay
rather large salaries and are vigorously sought by faithful party
workers who feel that the time for their reward has come.
A large part of the Senate's most important work is done
through its standing committees of which sixty-five or more are
regularly maintained. All matters of legislation are referred
to appropriate committees for investigation and report before
they are given consideration on the floor of the Senate. It is
in the committees, in fact, that usually the real work of legis-
lation is done, although the Senate is not so completely domi-
nated by the committee system as is the House of Representa-
tives. The committees have no constitutional basis, but are
provided for simply by the rules of the Senate. Among those
commonly considered of most consequence may be mentioned
the committees on Finance, Appropriations, Judiciary, Inter-
state Commerce, Foreign Relations, and Military Affairs. A
number of the committees are of very slight, if any, importance
and are maintained for the purpose, apparently, of providing
as many chairmanships and committee clerks as possible,
together with adequate ofl&ce accommodations for their members.
The power of the leading committees is very great under the
Senate's rules of procedure and the fate of important legislative
proposals is usually determined by committee action. Some
of the gravest criticisms of both houses of Congress are to be
made in connection with the committee system, but discussion
of the general effects of that system will be deferred until after
the organization of the House of Representatives has been
considered. It is sufficient here to note the central position of
the committees in the work of the Senate.
134 COMPARATIVE FREE GOVERNMENT
The appointment of committees in the Senate is nominally
made by the Senate itself ; actually it is made by the party cau-
cuses through a committee on committees chosen by the caucuses
for the purpose of assigning Senators to the various committees.
The recommendations of this committee are almost always ap-
proved by the Senate, although the Senate, of course, could reject
such recommendations if it should desire to do so. The majority
party always controls each committee by a safe margin. The
committees vary in size from three to seventeen members.
The most important ones have usually fourteen or fifteen mem-
bers. The powerful committees on Finance and Foreign Rela-
tions each have fourteen members, nine from the majority party
and five from the minority. In the case of committees whose
work is non-partisan in character the minority party has a
larger proportionate representation. In selecting both the
majority and the minority members the rule of seniority is
observed ; that is, the chairmanships and ranking positions on
all committees are usually given to those Senators who have
served longest in the Senate, and the ranking of the members
of any particular committee is determined by the period of
their service on that committee. Occasionally there is some
variation from this rule, but not often. It is plain that this
practice is not always in the interest of the best legislative work.
It by no means follows that the man who has served longest on
a committee is the best man for the position of chairman. More-
over, the rule tends strongly to place the control over all im-
portant legislation in the hands of a small number of Senators
and makes possible the building up of an organization or machine
among the majority leaders which is all but invincible. The
wisdom which comes from e.xi")erience in legislative work is to
be cherished and utilized to the utmost, but mere length of
service is not necessarily a true measure of either experience or
ability. There can be little doubt that greater freedom in the
selection of committee members than the seniority rule permits
would be in the interest of better legislation.
The Party Caucus. — A vital jjart of the Senate organization
whose work may at times be of supreme concern to the nation
is the party caucus, to which reference has already been made.
The minority f)arty, as well as the majority jxirly, has its caucus
in which fri''|ucntly its position u|)oii important projects of
THE SENATE 135
legislation is determined. But it is the caucus of the majority
party whose action is of chief interest to the nation. It is
through the caucus that the majority leaders seek to line up
their party associates in support of party measures so that
there may be no question as to the passage of these measures
when they come up for action in the Senate. The caucus is a
voluntary, unofficial body, and its action is without legal force.
The obligation of its members to abide by the decisions reached
is wholly moral. The Senator who refuses to enter the caucus,
or having entered reserves the right to act independently, is in
no way bound by its action. The meetings of the caucus are
secret. The great importance which at times attaches to it is
easily comprehended when it is noted that the actual deter-
mination of the content of legislative measures may be trans-
ferred from the Senate to the party caucus. A good illustration
of this is found in the action of the Democratic caucus upon the
Underwood-Simmons tariff bill at the special session of Congress
called by President Wilson in April, 19 13. After the measure
had been received from the House of Representatives and had
been considered in detail by the majority members of the
Finance Committee of the Senate, it was submitted to the
Democratic caucus. There it was taken up section by section,
discussed at length, modified in minor ways, voted upon, and
approved. All this was done to assure for it, if possible, the
solid Democratic support. After it had been approved by the
caucus it was submitted to the entire Finance Committee where,
by a strict party vote, it was recommended to the Senate for
passage. Of course this committee action was a mere formality,
made necessary by the Senate rules which require that all bills
be considered in committee. A long debate in the Senate en-
sued, but to no purpose whatever, except to give the minority
members the opportunity to express their opposition. With the
exception of two or three Senators who refused to be bound by
the caucus with respect to particular items in the bill, the
entire Democratic vote was pledged in advance and the leaders
in charge of the measure were reasonably sure of its passage.
The action of the Senate was essentially a formality ; the vital
decision was reached in the caucus.
Objections to the caucus method of legislation arc obvious
and need not be discussed at length. The substitution of irre-
136 COMPARATIVE FREE GOVERNMENT
sponsible group action in a secret caucus for public personal
responsibility on the floor of the Senate is of doubtful wisdom.
Publicity with respect to all the processes of legislation is desir-
able. It is true that the action of the caucus fixes rather
definitely the responsibility of the dominant party, a fact of
real significance, but regardless of this the caucus is not an
institution that is popular either in or out of Congress.
Freedom of Debate. — With respect to its rules of procedure
the Senate, though similar in the main to the House of Repre-
sentatives and other legislative assemblies, is exceptional in one
important thing. There is unlimited freedom of debate. No
closure rule exists. Each Senator is free to debate a measure
as long as he wishes. In this is found the greatest contrast
between the Senate and the House of Representatives in which
a rigid control over debate is exercised. The Senate is almost
alone among the great legislative bodies of the world in its
refusal to provide some system of closure. In most countries
it has been found necessary to limit debate both for the purpose
of expediting business and preventing obstructive practices on
the part of the minorities.' It is comparatively easy in the
Senate for a filibuster to be effective. This is particularly true
in the closing days of the life of a Congress. Undoubtedly the
nation suffers at times from the unrestricted discussion. This
procedure has been subjected to very severe criticism. It is
frequently referred to as " legislation by unanimous consent,"
manifestly a difficult kind to obtain. But one exceedingly
valuable result of this freedom is to be noted. There is real
debate in the Senate, and at times debate of very high char-
acter. In the House of Representatives, for the most part,
there is no debate worthy of the name. It is in the Senate
ordinarily that the publicity which comes from exhaustive dis-
cussion is given to j)encHng legislation. Delays, of course, are
frequent; and sometimes delays which are wearisome to the
Nation. But the delays in the Senate tend to counteract the
haste and carelessness which only too frequently characterize
the actions of the lower house.
Moreover, the Senate's practice gives opjiort unity to indi-
vidual Senators to show the stuff that is in them and to develop
into effective debaters. Undoubtedly it helps to make service
' Lowell, "The Government of England," Vol. 1, p. 392.
THE SENATE 137
in the Senate attractive to men of ability, although it is every-
where recognized that a Senator's influence upon the work of
the Senate is by no manner of means dependent upon his ora-
torical powers. Many of the strongest, most influential men
in the Senate have been men without forensic ability ; indeed,
some of them seldom, if ever, took part in the general discussion
of measures on the open floor of the Senate. Yet it cannot be
denied that the ability to take care of one's self in the rough and
tumble of debate is a thing of great value and under the Senate's
rules abundant opportunity is afforded for its display. In the
House of Representatives this opportunity is for the most part
lacking. This fact undoubtedly explains in part why service
in the Senate is generally looked upon with greater favor by
public men than service in the lower house. There is freedom
to grow in the Senate and the man with the capacity for states-
manship is sure of his chance.
The Senate's Legislative Position. — As a legislative body
the Senate has no peculiar constitutional position or powers.
It is coordinate with the House of Representatives. It is simply
the second chamber of the national legislature and, with one
exception, has exactly the same legislative powers as the other
chamber. That exception is in connection with bills for raising
revenue which, by constitutional provision, must originate in
the House of Representatives. In giving the lower house this
special power the constitution makers were clearly following
English experience. The struggle for political liberty in Eng-
land centered around the struggle for the control of the public
purse, and one of the fundamentals of the English Constitution
is that this control shall be exercised by the representatives of
the people in the House of Commons. In the American colonies,
likewise, the struggle for the control of taxation by the repre-
sentatives of the people was long and bitter. Hence it was
natural that the principle of popular control over national ta.xa-
tion should be embodied in the Constitution. The House of
Representatives was made elective by the people directly, or
rather by that portion of the people upon whom the right of
suffrage was conferred by the States. The Senate was made
elective by the State legislatures, thus being only indirectly
representative of the people. Therefore the House of Repre-
sentatives should have the initiative in the raising of revenue
138 COMPARATIVE FREE GOVERNMENT
as a safeguard of the people's liberties and rights of property.
But this constitutional provision is of only nominal significance
in actual practice, for in passing upon revenue bills the Senate,
by provision of the Constitution, may " propose or concur with
amendments as on other bills." This right of amendment gives
to the Senate practical equality with the House, for by amend-
ment a bill expressing the desires of the Senate may be substi-
tuted for one passed and submitted to it by the House. The
House must take the lead, nominally, in drafting revenue legis-
lation, for the letter of the Constitution must be observed;
but that does not prevent the Senate, if it wishes, from framing
through its Finance committee a measure of its own and by
" amendment " substituting it for the House bill at the proper
time. Hence this apparent privilege of the House of Repre-
sentatives amounts to little or nothing in actual practice and
the powers of the two houses with respect to legislation are in
reality equal. No bill can become a law without the approval
of both. This equality, it should be noted, is theoretical rather
than actual, for the Senate not infrequently is able to force its
will upon the lower house. The reasons for this will be sug-
gested in the discussion of the general character and success of
the Senate.
It is a signillcanl fact that at first the Senate did not make
use of its constitutional privileges with respect to legislation.
Its consent was necessary, of course, for the enactment of laws,
but the task of originating and framing the measures which
came before Congress was left for the most part to the House
of Representatives. The Senate looked upon itself as a kind
of executive council whose function was to give advice to the
President, and for a numl^er of years after the government was
established gave its chief attention to questions of treaties and
appointments laid Ijcforc it by the President. As already
pointed out, the theory of the constitution makers was that
the Senate should be a body of dignity, conservatism, and im-
partiality which would keej) itself free from jKirtisan strife.
This point of view was (juite generally accepted and as a conse-
quence the Senate sat in secluded dignity behind closed doors,
deliberating u|)on the executive business that was submitted
to it by the President. It was not for some years that the
Senate seemed to awaken to its opportunity in connection with
THE SENATE 1 39
legislation and began to make use of its constitutional powers.
Very rapidly, after the start was once made, the Senate asserted
its rights under the Constitution and at all times since has
shown a very jealous concern for what is called its " preroga-
tives." Frequent controversies have arisen between the two
houses of Congress over their respective rights and between
the Senate and the President. In the main, it is generally
conceded, the results of these controversies have strengthened
the Senate. Always ready to resent any invasion of its own
rights, real or apparent, the Senate has not always been very
scrupulous about observing the rights of the House of Repre-
sentatives and of the President. Much has been said in the
Senate about "executive usurpation" of powers that belong to
the Senate alone or to Congress as a whole. Of "usurpation"
on the part of the Senate, not so much has been heard; yet
clearly the Senate has asserted powers in connection with
revenue legislation and acquired a dominance in connection
with appointments to office by the President, which lie outside
its province as measured by the intentions of the constitution
makers.^ It has grown in influence and power, both as a legis-
lative body and as an advisory council to the President.
Executive and Judicial Functions. — It has already been
made clear that the Senate exercises executive as well as legis-
lative powers, in this respect differing radically from the House
of Representatives. Its executive functions are two : the con-
firmation of appointments, and the ratification of treaties.
The part which it plays in these two very important matters
has previously been discussed in connection with the powers of
the President and does not again need detailed treatment. It
should be kept in mind that the Constitution requires the con-
firmation of appointments to certain offices enumerated in the
Constitution itself, and the ratification of all treaties. In the
case of other offices, created by act of Congress and to be filled
by appointment of the President, confirmation may be required
or not as the Congress sees fit to direct. Usually it is required.
The Senate is thus a powerful check upon the President and is
in a position to influence very directly the work of the executive
branch of the government. In fact, through its " Senatorial
' See article bj- A. Maurice Low, "The Usurped Powers of the Senate," The
American Political Science Review, Vol. I, p. i.
I40 COMPARATIVE FREE GOVERNMENT
Courtesy " system, already described, it has to a high degree
practically supplanted the President in the matter of appoint-
ments ; although the extent to which this is true depends a
good deal upon the character of the man who is President.
With respect to treaties, although its consent is necessary
for their validity, the Senate has not been so successful in forc-
ing the President to do its will. It may prevent him from
carrying out his own policy, but it cannot compel him to accept
the policy which the Senate itself favors. It needs no argu-
ment to make clear that these executive functions give to the
Senate an influence in the government which the House of
Representatives does not have and cannot have under the Con-
stitution. Moreover, because the members of the lower house
have a keen personal and political interest in the appointment of
public officers, the Senate is in a position to affect seriously at
times the course of legislation in the House of Representatives, a
fact which helps to explain in part the frequent successes of the
Senate in the controversies which arise between the two houses.
The Senate has also a judicial function to discharge. It is
given by the Constitution the " sole power to try all impeach-
ments." In exercising this power the Senate sits as a court,
hears the evidence submitted and passes upon its admissibility,
listens to the arguments for and against the accused, and, by
formal vote upon each of the specific charges in the impeach-
ment, determines his guilt or innocence. The members of the
Senate are on oath or affirmation. The Vice President presides
except when the President of the United States is on trial,
when the Chief Justice of the Supreme Court is the presiding
oflficer. The vote of two thirds of the members present is
necessary for conviction. By constitutional provision, judg-
ment in impeachment cases cannot extend further than to
" removal from office, and disqualification to hold and enjoy
any office of honour, trust, or profit under the United States."
This provision, however, docs not exempt the convicted officer
from indictment, trial, and punishment according to existing
law. The grounds for impeachment are " treason, bribery, or
other high crimes and misdemeanors," — a statement some-
what vague anfl infiefmite. The Senate has nothing to do with
the voting of imj)eachments ; that is the exclusive function of
the House of Representatives. The President, Vice President,
THE SENATE 14!
and all civil officers of the United States are subject to im-
peachment.
VaUd criticisms may be made of the impeachment process.
It is, as suggested in a previous chapter, a slow and ponderous
procedure, not well adapted to a large number of cases of
minor importance ; it is only in connection with the gravest
offenses committed by the highest officials that its use seems to
be justified. Moreover, some of the constitutional provisions
relating to it are hardly satisfactory. The expression " other
high crimes and misdemeanors " is not sufficiently explicit as a
definition of crimes. It leaves the way open for personal and
party prejudices to work their will. Also there have been
serious differences of opinion as to the meaning of the term
" civil officers of the United States." Senators and Represent-
atives, for instance, are not civil officers, as was decided in
1789, in the first impeachment case tried by the Senate, that of
Senator William Blount of Tennessee. However serious might
be the offense of a member of Congress during his term of
office, the only penalty that can be imposed is expulsion from
the house to which he belongs. Furthermore, there is a differ-
ence of opinion as to whether a person may be impeached after
he has retired from office for acts which he committed while
holding his official position, and as to whether the accused may
escape from trial and punishment by resigning from office.^
In spite of its faults, however, the existence of the impeach-
ment process is undoubtedly a powerful restraining influence
upon the conduct of public officers.^
General Character of the Senate. — Reference has been
made to the Senate's efficiency and success as an instrument of
government, notwithstanding its obvious shortcomings. The
reason for this success is not found in any one specific phase of
the Senate's organization, but in a number of things which
make clear its general character.
1 Woodburn, "The American Rciiublic," pp. 231-239.
2 Notwithstanding the large numt)er of persons who have held civil office under
the United States since the government was established, there have been only nine
cases of impeachment. Of the accused there was one President, one cabinet ofhcer,
one Senator, and si.x judges. Only three of the nine — all judges — were convicted.
For an excellent brief review of the impeachment process, see article on "The Law
of Impeachment in the United States," by Professor David Y. Thomas, Political
Science Review for May, igoS, pp. 378 5. Consult also, The Federalist, Nos. 65
and 66.
142 COMPARATIVE FREE GOVERNMENT
1. The Senate, comparatively speaking, is a small legislative
body; much smaller than the corresponding houses of leading
European legislatures. The advantages of this are plain.
The small size of the Senate makes unity of purpose and col-
lective action more easily attainable ; increases the dignity
and influence of the individual member ; makes it possible for
each Senator to keep intimately in touch with all of the Senate's
work ; fixes more definitely the responsibility for what is done ;
permits greater freedom in procedure ; and assures general and
thorough debate upon pending measures. In the matter of
size the Senate is much more fortunate than is the House of
Representatives.
2. As a consequence of its small size and the complete free-
dom of debate allowed by its rules, the Senate is a real delibera-
tive assembly ; too much so, in the view of a great many people.
In this respect it differs vitally from the House of Represent-
atives where deliberation and debate, as far as the House as a
whole is concerned, are farcical rather than real. The value
of this characteristic of the Senate is beyond question, though
there are abuses in connection with it which should be prevented.
The problems of free government are not to be solved without
full and adequate discussion.
3. For the most part the Senate is composed of men who are
experienced in pul^lic life. Always many of its members have
had previous experience in the House of Representatives,
where they learned the ins and outs of congressional procedure
and the difficulties in the way of legislative action. Many
others pass from the governorships of States where they have
had excellent experience in both the formulation and the ad-
ministration of public policies. Of course not all Senators
have had these ojiportunities for training in public service, but
almost always the men who go to the Senate have been leaders
in their States, either in politics, professional life, or in business.
The result is an average of ability distinctly higher than that
in the House of Rc'[)rcsentatives.
4. The term of office, — six years, — unlike the two-year
term in the lower house, is sufficiently long to enable the new
member to acquire experience and develop such latent powers
of statesmanship as he may possess. It takes some time to
" gel on to the ropes " of the Senate's procedure. Moreover,
THE SENATE 143
the longer term tends to make the Senators a little more inde-
pendent in their judgments and actions than are the Represent-
atives. They may, if they choose, ignore with greater safety
to their political fortunes the demands of extreme partisanship
and sudden changes in pubUc opinion. The all-absorbing, if
not all-important, problem of a reelection is not quite so central
and dominating in the thought of a Senator as in that of a
Representative.
5. The Senate is what may be called a continuous or per-
manent body. Its members are not all chosen at the same
time, as is the case with the House of Representatives. One
third are chosen every two years, thus insuring to the majority
at least two years of experience with the business of the Senate.
This makes possible a continuity of purpose and policy, — a
fact of real importance. In addition. Senators are frequently
reelected again and again, so that there is always an accumu-
lated experience on the part of the Senate, taken as a whole,
which adds greatly to the dignity and influence which belong
to it by reason of its constitutional position and powers. As a
consequence service in the Senate is usually attractive to men
of superior abihties, and it is doubtless true, as Bryce suggests,
that " the position of a senator, who can count on reelection,
is the most desirable in the political world of America." ^ The
rules of procedure, to which the Senate has adhered in the face
of sharp criticism, give to its members the chance to " make
good," to develop their talents for statesmanship, and to leave
the imprint of their characters upon the national Hfe. The un-
restrained freedom of debate which prevails, though it places a
powerful weapon in the hands of those who may be more con-
cerned with private than with public interests, tends to en-
courage individual initiative and to strengthen the feeling of
individual responsibility. The individual looms large, a fact
of great significance which in no way destroys for the average
person the attractiveness of service in the Senate. Indeed, it
accounts for much of the Senate's success.
Judgments differ as to the value of the Senate, as is the
case with all agencies of government. Praise and blame alike
have been heaped upon it. Perhaps there can be no full unan-
imity of opinion concerning it, for, as President Wilson
'Bryce, "The American Commonwealth," New and Revised Edition, Vol. I, p. 121.
144 COMPARATIVE FREE GOVERNMENT
points out, it is exceedingly difficult to form a just estimate of
it. " No body has been more discussed ; no body has been more
misunderstood and traduced. There was a time when we were
lavish in spending our praises upon it. We joined with our
foreign critics and appreciators in speaking of the Senate as one
of the most admirable, as it is certainly one of the most original,
of our political institutions. In our day we have been equally
lavish of hostile criticism. We have suspected it of every malign
purpose, fixed every unhandsome motive upon it, and at times
almost cast it out of our confidence altogether.
" The fact is that it is possible in your thought to make
almost anything you please out of the Senate. It is a body
variously compounded, made many-sided by containing many
elements, and a critic may concentrate his attention upon one
element at a time if he chooses, make the most of what is good
and put the rest out of sight, or make more than the most of
what is bad and ignore everything that does not chime with his
thesis of evil. The Senate has, in fact, many contrasted char-
acteristics, shows many faces, lends itself easily to no confident
generalization. It differs very radically from the House of
Representatives. The House is an organic unit ; it has been
at great pains to make itself so, and to become a working body
under a single unifying discipline ; while the Senate is not so
much an organization as a body of individuals, retaining with
singularly little modification the character it was originally in-
tended to have." '
With respect to one general fact, however, there will be few
to disagree, namely, that the Senate has played a conspicuous
r61e in the nation's history, that it is a vital part of the national
government, and that it has fully held its own in competition
with the House of Representatives and the presidency.
RKFKRKNCES
Bryck. The American Coiumomcciillli, lulition i<)io, Vol. I, Chaps. X, XI,
XII.
Eoki). 7V/C Rise tttul Grmctli of Amrriiiin l'olili<s, Clia]). XXI.
Reinscii. American l^cgislaturcs and Lcj^islativc Mrllioiis, Chap. III.
Rkins( 11. Readings on Anirrican Federal Governmcul, Cliajis. V, VI.
WiLSO.M. Constiliilinnal Government in the United Slates, Clia]). V.
WoounuRN. The American Republic, Chap. IV.
YouNO. The New American Government and Us Work, Chap. IV.
'Wilson, "Constitutional (Jovcrnment in the United States," p. 112.
CHAPTER XII
The House of Representatives — Composition and
Organization
TiiE House of Representatives is very different from the Sen-
ate, both with respect to what it was intended to be and what
it actually is. It differs in manner of selection, in organization,
in purpose, and in procedure. Some of the most interesting
phases of government in the United States are revealed by the
contrasts between the two houses of Congress.
The House was designed by the Constitution makers to be
the popular branch of the national legislature. It was to stand
for the people's share in the new government. The men
chosen to the lower house were to be representatives, however,
not delegates. They were to owe their positions to the peoj)le,
or rather to the voters of their respective States, but they were
not to be under popular control. The Senate was to represent
the States as poHtical organizations and its members were to
be chosen by the State legislatures. The House was to repre-
sent the people of the States directly, its members being chosen
by popular election. Receiving their commissions of authority
in this way, the Representatives could, if they wished, give full
expression to the will of their constituents, and, subject to the
check of an indirectly elected Senate and an indirectly elected
President, could seek to make that will effective in the enact-
ment of laws and the determination of national policies. It
was taken for granted that radicalism and excessive democracy
would characterize the work of the House, as, in all likelihood,
would hasty and ill-advised action, but in the Senate and the
presidency adequate safeguards were provided. Democracy
might run rampant in the House without danger to the Republic.
It was expected that the House would indulge in long, passionate,
turbulent discussions in which the whims, prejudices, and follies
of the masses would find free expression. It would be the
L 145
146 COMPARATIVE FREE GOVERNMENT
center of continuous partisan strife. But no serious harm could
ensue because a conservative Senate and a disinterested Presi-
dent would always be on guard. It was never supposed in
the beginning that the membership of the House could be
brought under a rigid party discipline, such as has prevailed
for so long, and made subject to a system of rules which reduces
debate almost to the vanishing point and makes a free general
expression of opinion practically impossible. A House chained
by rules of procedure, at its own volition, and in subjection to
leaders of its own selection, was not anticipated. As it is to-day,
the House of Representatives is quite essentially different from
what it was expected to be. The transformation that has
taken place will be indicated in the discussion that follows.
Basis of Representation. — Since the House was to repre-
sent the people directly, it was natural, in order to have the
people of the various States on the same footing, that popula-
tion should be made the basis of representation. Also, the
acceptance of this plan was made necessary by the compromise
reached by the large and small States with respect to the com-
position of the two houses. The former would not consent to
equal representation of the States in the Senate unless popu-
lation was made the basis of representation in the House ; and
the small States would not consent to the latter arrangement,
unless the former were provided for. The number of Repre-
sentatives which each of the original States was to have, at
first, was fixed in the Constitution, the total membership of the
first House being sixty-five. The authority to determine the
population unit uf)on which Representatives should be appor-
tioned among the Stales was loflgcd in Congress. This means
that the number of members of the lower house is fixed by
Congress. Two limitations upon this power are imposed.
First, that each State shall have at least one Representative,
and, second, that the total number of Representatives shall not
exceed one for every thirty thousand of jxipulation. A census
must be taken every ten years for the purpose of apportioning
Representatives in accord with changes in po|)uIali()n. If the
unit of rejjresentation remains the same — and Congress may
do as it pleases about that — tlic niinil)cr of menil)ers must in-
crease as the population grows larger. If the membership is to
remain the same or be reduced, of course the unit of representa-
tion must be increased accordingly.
THE HOUSE OF REPRESENTATIVES — ORGANIZATION 147
The great growth in population, from 5,000,000, in round
numbers, in 1800, to 92,000,000 in 1910, has naturally resulted
in a marked increase in the House membership, notwithstanding
the fact that the unit of representation is more than six times
as large as the minimum set in the Constitution. At the present
time, based on the 1910 census and with a population of about
200,000 for each congressional district, the number is 435.
With the exception of the reapportionment of 1842, the member-
ship has been increased as the result of each decennial census.
This is a large membership for any legislative assembly ;
too large, in fact, for the highest efficiency. The size of a
legislature always materially affects its organization and meth-
ods. The rules of procedure are necessarily numerous and
complicated in a body of such size. General debate is practi-
cally impossible. Some satisfactory system of obtaining effi-
cient and responsible leadership is imperative, as the history
of the House of Representatives so clearly shows. The vast
power which the Speaker of the House came to have and the
rigid requirements of its committee system are due in no small
degree to its cumbersome size. One of the significant con-
trasts between the Senate and the House lies in the size of the
two bodies. Whether the House will become larger in the
future is doubtful. There is a fair probability that Congress
will decline to add new members at the next apportionment,
regardless of population growth. At the apportionment fol-
lowing the census of 19 10, there was strong and general objec-
tion to further increase.
The qualifications of a Representative, as prescribed by the
Constitution, relate to age, citizenship, and inhabitancy of the
State represented. No person can serve as Representative
who has not attained the age of twenty-five years, and been
for seven years a citizen of the United States, and who is not
at the time of his election an inhabitant of the State in which
he is chosen. Whether or not these requirements have been
satisfactorily met rests with the House to say. Question has
sometimes arisen as to both citizenship and inhabitancy, partic-
ularly the latter, and a number of rulings have been made.
The right of the House to add to the constitutional qualifi-
cations has been the subject of a great deal of discussion and
the question must be looked upon as undecided, although in
148 COMPARATIVE FREE GOVERNINIENT
one instance, as pointed out in a previous chapter, the House
excluded a member-elect chiefly for reasons not provided for
in the Constitution.^ The States, however, clearly have no
power to impose additional requirements. With respect to
the election of Representatives, the Constitution prescribes
that the voters participating in each State " shall have the
qualifications requisite for electors of the most numerous branch
of the state legislature," — the suffrage qualifications being
left to the State to determine.
The Congressional Districts. — Members of the House of
Representatives are chosen from districts, known as congres-
sional districts, into which the various States are divided,
except in the case of States that are entitled to only one Repre-
sentative. In such instances, of course, the State itself is
the congressional district and the Representative is elected from
the State at large. The district plan is not based upon any
constitutional provision, but was first required by act of Con-
gress, passed in 1842. The Constitution simply says that
Representatives shall be chosen " by the people of the several
states." For more than half a century the States were per-
mitted by Congress to use their own discretion with respect to
methods of electing Representatives. Election upon a general
ticket was common. In the apportionment act of 1842, how-
ever, Congress provided that " in every case where a State is
entitled to more than one Representative, the number to which
each State shall be entitled under this apportionment shall be
elected by districts composed of contiguous territory, equal in
number to the number of Representatives to wiiich said State
may be entitled, no one district electing more than one Repre-
sentative." In later acts the requirement concerning the terri-
tory of the district has been made somewhat more stringent.
The regular rule is that the districts shall be composed of " con-
tiguous and compact territory containing as nearly as practi-
cable an equal number of inhabitants." Under certain condi-
tions Congress permits the election of members at large. In
case a new apportionment gives to any State an increase in
the number of Representatives, the additional members thus
authorized are elected at large until the Slate is redistricted so
that the number of districts corresponds to the number of
' llinils, " I'rcccdents," Vol. I, p. .177.
THE HOUSE OF REPRESENTATIVES — ORGANIZATION 149
Representatives to which the State is entitled. If the repre-
sentation of a State is reduced as a result of a new apportion-
ment, and at the time of the election the number of districts
has not been reduced accordingly, all of that State's Repre-
sentatives are elected at large and will continue to be so chosen
until the State is redistricted in harmony with the requirements
of the law.
The division of the States into congressional districts is
in the hands of the State legislatures. Except for the restric-
tion that the districts shall be composed of contiguous and
compact territory, — a restriction which proves very elastic
in practice, — the legislatures are free to arrange the districts
pretty much as they please. County boundaries, and, in the
cities entitled to more than one Representative, ward bound-
aries, are usually observed in the formation of districts. The
purpose of Congress in adopting the district system was to
have the districts fairly equal with respect to population. Great
inequality exists, however, some districts having from two to
three times the population of others. With respect to the
number of votes cast at congressional elections, the variation
is even greater.^ It should be remembered, however, that
representation is based on population and not on the number
of voters or the number of votes cast at election.
Some inequality among the districts is unavoidable, but
much of that which exists and gives rise to justifiable criticism
is clearly by design. The dominant parties in the legislatures
have in many instances purposely arranged the districts so
that they would have a marked advantage over their oppo-
nents, regardless alike of an equitable distribution of popula-
tion and the geographical formation of the districts. By a
careful grouping of the counties of a State, for illustration, the
strength of the minority party may be so concentrated in a
small number of districts that the majority of the districts will
be safely controlled by the party in power. Or, counties which
are strongly of the minority faith and so situated that they
naturally constitute a district of " contiguous and compact
territory," may be separated in forming the districts and joined
with counties controlled by the majority party so that the latter
will easily maintain its supremacy. This practice of arranging
1 Beard," American Government and Politics," New and Revised Edition, p. 235.
150 COMPARATIVE FREE GOVERNMENT
districts for the sake of party advantage is known as gerry-
mandering, a political term which came into early use.^ As a
result of it many curiously shaped districts have been formed,
as is indicated by the names by which they are popularly char-
acterized, — " shoestring," " monkey wrench," *' belt line,"
and " saddle bag " being among the most suggestive. The
latter term was applied to an Illinois district comprised of " two
groups of counties at different sides of the state, so connected
as to crowd as many Democratic counties as possible into one
district and thus secure Republican seats in near-by districts
by eliminating the vote of hostile locaUties." ^
A striking example of the advantage which is sometimes
obtained by the dominant party through " scientific gerry-
mandering " is found in the arrangement of districts made by
the Democrats in Indiana by which, in 1892, they succeeded
in electing eleven Representatives with a vote of 259,190, while
the Republicans with a vote of 253,668 were able to elect only
two.'* It should be noted, however, that the advantage gained
by the party making the gerrymander is often short-lived. Not
infrequently, through a sudden change in public opinion, the
arrangement so carefully made proves the undoing of the
party responsible for it and gives ascendancy to the party against
which it was directed. The gerrymander is a weapon which
the parties have been willing to use, but sometimes it has proven
itself to be of the boomerang type.
The Residence Rule. ^ In connection with the discussion of
district representation, the question of residence within the
district should be noted. Either by custom or by the laws of
the States such residence is almost an absolute requirement.
It is practically not [K)ssible as it is in England for any man,
however exiK-ricnced and iniluential, to ol^tain an election in a
'"So callc'l from lilhridKc (icrry, a leading Dcitkx r;itic politician in Massaciiu-
sctts (a member of the Constitutional Conventions of 17S7, and in 1812 elected Vice-
President of the Unitefl States), who when Massachusetts was beiuR rc-districted
contrived a scheme which pave one of the districts a shape like that of a lizard.
Stuart, the well known artist, entering the room of an editor who had a map of the
new fjistricts han^inK on the wall over his desk observed, 'Why, this district looks
like a salamander,' and put in the daws and eyes of the creature with his pencil.
'Say rather a Cerrymander,' replied the editor; and the name stuck."
Bryce, " 'J'he .\merican ("ommonwealtli," New and Revised Kdition, Vol. I, p. 126.
' Reinsch, "Ameriian I^eKislaltires and I.eKislalive Methods," p. 202.
* Commons, " rroiwrlional Representation," Second H<lilion, p. (n.
THE HOUSE OF REPRESENTATIVES — ORGANIZATION 1 51
district in which he does not reside. This is in accord with the
general practice in the United States where by law the residence
rule is almost always required with respect to elective oflfices of
all kinds. In the election of Representatives, however, it is not
required either by the federal Constitution or by the law of
Congress. The former simply says that Representatives shall
be inhabitants of the States in which they are elected, and the
latter, in substance, that they shall be regularly elected by
districts instead of by the State at large upon a general ticket.
As suggested, the observance of the rule is due either to the
force of a long-standing tradition or to the authority of State
law. Only rarely is the rule not observed. In the city of
New York, there have been instances of representation of down-
town districts by men who were not resident within them ; but
aside from these, the rule has almost never been violated. The
constitutionality of the practice, however, is exceedingly doubt-
ful. In fact, it is freely held to be invaUd inasmuch as it adds
to the quaUfications for membership in the House as prescribed
in the Constitution. The assumption may be .safely made,
though, that it is in no immediate danger of being set aside, since
it is so generally approved by the people and is so fully in har-
mony with their political habits.
The Time of Meeting. — The time of meeting of a new Con-
gress, as prescribed by the Constitution, is open to criticism
and has been made the subject of frequent discussion. As
already stated, the election of Representatives takes place every
two years, and by act of Congress occurs on the first Tuesday
after the first Monday in November of the even-numbered
years. Their term of office begins on the fourth of March
following their election. But unless called into special session
by the President at an earlier time, or a different date for the
meeting of Congress is set by law. Congress will not assemble
until the first Monday in the following December, — about
thirteen months after the congressional election. Of course
Congress can fix a different time for the first regular session
to begin, and has often been urged to shorten the period elaps-
ing between the election and the time of its assembling, but there
is little to indicate any change in the practice within the near
future, although the advantages of such a change are obvious.
There are at least two unfortunate results which come from
152 COMPARATIVE FREE GOVERNMENT
this long delay to which a newly elected Congress must sub-
mit before it normally begins its work. One is that after the
new Congress has been chosen, the closing or short session of
the old Congress is still to be held, beginning on the first Mon-
day in December immediately following the congressional
election and continuing until the fourth of March. Many
members of this old Congress may have been defeated for re-
election and the work of Congress discredited in the eyes of
the people. Yet, however strong may have been the protest
registered by the voters at the polls, the existing Congress still
has three months to serve and may proceed in its own way to
carry out its own will. The very policies condemned by the
voters may be enacted into law during this time. It may easily
happen in a presidential year that the party in power, controlling
the presidency and both houses of Congress, will be routed" at
the election, and a President and Congress of the opposite party
chosen. Nevertheless, the President and Congress thus dis-
credited have a free hand with respect to legislation until their
terms of office expire. During this time many things may be
done, or left undone, contrary to the wishes of the people, for
the purpose of embarrassing the incoming administration.
Enormous appropriations of money are sometimes carried
through by men who within a few weeks or a few days will pass
from power. There is almost certain to be extravagance and
carelessness, if nothing worse, under such conditions. It can
hardly be expected that the same degree of responsibility will
be felt by men who have been rejected by the voters and are
giving up their official positions as will characterize the attitude
of men who are just entering upon their duties.
The second result to be noted is that in less than a year after
a new Congress begins its work, the next one must be elected.
That means that memlicrs of the House of Representatives,
at the very beginning of their terms, must give thought to the
problem of reelection if they wish to continue their congres-
sional service. Indeed, Ijcforc the end of thr first session,
barely more than six months after taking their seats, many
Representatives must make the fight for renomination at the
party primaries. This is a very distracting j)roceeding and
diverts their attention from legislative duties, and tempts them
to courses of conduct that are not consistent willi (Hsinlerested
THE HOUSE OF REPRESENTATIVES — ORGANIZATION 1 53
public service. In such circumstances " playing politics " is
inevitable. The man who wishes to make a career for himself
in the lower house is under the necessity of constantly giving
heed to the political conditions and movements in the district
he represents. If he does not do so, his power at home is likely
to be undermined, either by party opponents or by rivals within
his own party, and he be retired to the gloom of private life. A
high degree of efficiency in legislation is not possible under
such conditions. The necessity of " playing poHtics " during
the session of Congress would be lessened, although it would not
be removed, by having a new Congress assemble soon after its
election.
This evil — for it is truly an evil — is intensified by the short
term of office for Representatives. If this were longer, say
four years, instead of two as prescribed by the Constitution,
members of the House could devote some of their time exclu-
sively to legislative work without incurring so much risk of
defeat and political oblivion. Less attention to personal
advancement, on the part of Representatives, and more to
serious consideration of the problems of government are greatly
needed in the House. The opportunity for this, at least, would
be afforded by a longer term. Real statesmanship can hardly
be expected of the man whose thought is chiefly occupied with
the question of reelection. Moreover, the short term practi-
cally insures the presence of a large number of Representatives
who are lacking in the experience necessary for efficient legis-
lative service. Many fail of reelection and are retired to
private life after only a term or two, and this is not sufficient
to enable the average member to become thoroughly familiar
with the work of the House and acquire real influence in its
deliberations. Just when many Representatives have com-
pleted their apprenticeship, so to speak, and have become
equipped by experience for the difficult work of legislation,
they are driven from office, and untried men take their places.
As a consequence, there is a great loss to the nation. Those
who become the real leaders of the House, almost without
exception, are men who have been repeatedly reelected. The
speakership and the important committee assignments are
almost certain to go to men of long experience. The seniority
rule, it is true, is not so stringently observed in the House as in
154 COMPARATIVE FREE GOVERNMENT
the Senate, but it is nevertheless of very great consequence.
And as a result of it, in part, legislative power is centered in
the few, while the great majority of members, possessing equal
constitutional privileges and powers with the leaders, hold
places of comparative insignificance.
The House Organization. — With the expiration of the two-
year term, as previously pointed out, the entire membership
of the House ceases, and the House organization disappears.
" The moment after the expiration of a Congress, the House
has no Speaker, no committees, no rules, no sworn membership,
and no actual existence as an organized body." ^ Of course
when the new Congress assembles, a new organization must be
effected. This involves the taking of the oath by the members-
elect, the choosing of the Speaker, and the other House officers,
the adoption of rules, and the appointment of committees.
In accomplishing this a regular procedure is observed. The
members-elect are called to order by the Clerk of the preceding
House who, until the Speaker is elected, serves as the presiding
officer. The roll is called of those whose credentials show that
they have been properly elected. In this way the presence of
the constitutional quorum is ascertained and the way prepared
for the election of a Speaker. The roll is again called and each
member in turn states his choice for Speaker. When the report
of the tellers, appointed by the Clerk and representing the dif-
ferent political parties, shows that any candidate has a majority
of all the votes cast, he is declared elected, and is escorted to
the chair by a committee of members, where the oath of office
is administered. The Speaker then takes charge of the pro-
ceedings and gives the oath to the members-elect. Following
this comes the election of the Clerk, Sergeant-at-Arms, and other
House officers, and the afloplion of a set of rules. With respect
to the latter, usually the rules of the preceding House are adopted,
to remain in force until otherwise ordered. Upon the comple-
tion of these steps, the House is said to be organized and ready
to flo business. However, it has no committees, and without
committees practically no legislative work can be accomplished.
The most notable of the House officers is the Speaker. In
fact, he is one of the most notable officers in the entire govern-
ment, although his power is not so great under the rules now
' McCall, " Tlic Business of Congress," p. 34.
THE HOUSE OF REPRESENTATIVES — ORGANIZATION 155
in force as it formerly was. The position of speaker has
constitutional recognition in the provision which declares that
" the House of Representatives shall choose their speaker and
other ofificers." No other reference to the speakership is con-
tained in the Constitution. It will be noted that nothing is
said as to his powers and duties. The determination of these
is left to the House through its own rules. His power and
influence are very great, however, arising first from the fact
that he is the presiding officer, charged with the enforcement
of the House rules, and, second, from the fact that he is the leader
of the dominant party in the House. He is always chosen as
a party man and is expected, therefore, not only to discharge
the duties of a parliamentary presiding officer, but also to guide
his party in the legislative and parliamentary controversies
which arise. In this latter respect he differs very radically
from the Speaker of the English House of Commons, who is
expected to be entirely free from all partisan bias and activity.
His parliamentary duties are such as usually pertain to the
presiding officer of legislative bodies and are clearly set forth in
the rules. He is a member of the House, with all the rights of
the ordinary member in addition to those of the presiding officer.
He may vote upon all questions if he chooses, although by the
House rule he is not required to vote in ordinary legislative
proceedings, " except where his vote would be decisive or where
the House is engaged in voting by ballot." The Speaker's name
is not on the roll used in calling the yeas and nays and is not
called except upon his request. Usually he does not vote when
not required to do so.
Formerly, that is, prior to the Sixty-second Congress, the
Speaker, acting for his party, appointed all standing committees.
This privilege gave him commanding power, for through his
control over the personnel of the committees, he was in a posi-
tion practically to control the actual work of the House. Nat-
urally he would not appoint men to important committee
positions who stood for legislative policies to which he was
opposed. This, coupled with his parliamentary power to
grant or withhold recognition to those seeking opportunity to
address the House and his dominance in the small committee
on rules, as it then existed, made the Speaker almost a dictator
in the affairs of the House. In point of actual influence he
156 COMPARATIVE FREE GOVERNMENT
became second only to the President. The growth of the Speak-
er's power is one of the most interesting and most significant
developments that have occurred in connection with the United
States government. It has not been due either to constitu-
tional provision or to legal requirement, but, fostered by the
House rules and by long-standing custom, is the result of a slow
evolution in response to one of the vital needs of the House, —
the need of leadership and centralized control.
For many years the House, under the decentralizing intlu-
ence of democratic theories, was loosely organized and without
adequate discipline ; hence it was frequently subject to the
demoraHzation that comes from obstructionist and dilatory
practices, to the sacrifice of power and efficient action. It
became clear in time that leadership and effective organization
must be provided. This was done through the extension of
the Speaker's power and the development of the committee
system. But, as frequently happens in governmental reforms,
the movement went too far, and ultimately there developed
an autocratic regime, which made the House subject to the will
of the Speaker and a few of his chief lieutenants who were at
the head of the leading committees. It became possible for
the Speaker practically to determine what the House should
and what it should not do. The hands of the ordinary member
were tied and he could get nothing through the House that did
not meet with approval from the leaders. Of course, this situa-
tion could be changed whenever the majority wished to change
it, for the Speaker's power was not personal. He occujMcd the
position he held because his followers preferred that he should.
He was " the instrument, as well as the leader of the majority
in controlling the processes of the House." ^
Though opposition to such centralized power was always
existent, it was many years, because of personal and party
considerations, before a majority of the members could be in-
duced to take a stand for a change in the House rules, looking
to the curtailment of the Speaker's j)owers. This was accom-
plished finally in iyio,aftera spectacular parliamentary struggle,
and nominally, at least, the Speaker was deprived of certain
privileges. Two changes of consequence to the Speaker \yere
made. His power of ap[)()inling all standing committees was
' Wilson, " Constilutioniil (iuvcrnmcnt in the l-'nilcd States," p. 95.
THE HOUSE OF REPRESENTATIVES — ORGANIZATION 1 57
taken from him, and these were made elective by the House
itself. Also the very important committee on Rules was in-
creased in membership from five to eleven and the Speaker was
debarred from membership upon it. With respect to the first,
the appointment of committees, the change made is perhaps
not so significant as appears at first thought, for the party cau-
cuses have always had a leading part in the selection of commit-
tees, and continue to have under the new rule. Professor Beard
says : " Since the beginning of the party system in the United
States, the selection of the members of committees has been
in the hands of the caucus of each party, under the leadership
and perhaps dominance of a few men experienced in the arts of
management. To borrow a term from economics, we may say
that the committee assignments in the House and in the Senate
are determined by a ' higgHng in the market ' and that the vari-
ous posts fall to members roughly according to their abihties,
their actual power as leaders, their skill in management. This
' higgling ' begins long before a new Congress meets ; most of
the important assignments are determined probably before
the party caucuses assemble, and the caucuses only ratify the
work of the pre-caucuses, while the houses ratify the work of
the caucuses." ^ So the Speaker's position, though somewhat
different under the present rule, is only a Httle less powerful
than under the older order. Inasmuch as he is the leader of
the dominant party of the House, he is certain to have a good
deal to say about committee assignments and House procedure,
whatever the formal requirements may be as set up by the rules.
His only rival in influence is the chairman of the Ways and
Means Committee, who is the floor leader of the majority and
consequently, from the standpoint of party success, is in a posi-
tion of the greatest responsibility. It is possible that the future
may see the Speaker transformed into an exclusively impartial
parliamentary officer and the burden of party leadership in the
lower House transferred to the floor leader.^
REFERENCES
(For References, see the following chapter.)
1 Beard, "Americasi Government and Politics," New and Revised Edition, p. 277.
' The other chief officers of the Mouse are the Clerk, the Sergeant-at-.\rms, the
Doorkeeper, the Postmaster, and the Chaplain. In addition, there are many assist-
ants to these officers, committee clerks, secretaries, messengers, and other employees.
CHAPTER XIII
The House of Representatives — Committees and
Procedure
Frequent reference has been made to the House committee
system. This must be considered still further and somewhat
in detail, for no proper understanding of the organization and
work of the House can be obtained without full knowledge of
the part which the committees play in congressional legisla-
tion. Though they have no constitutional foundation, without
its committees the House would be utterly helpless. The
volume of business each session is so vast that the House as
a whole could do nothing with it. With all of their faults the
committees are necessary.
The rules provide for a large number of standing committees,
almost sixty, in fact. All proposed legislation must be re-
ferred to appropriate committees for investigation and report
before being acted upon by the House. For each important
subject there is a standing committee. The reference of meas-
ures and the jurisdiction of committees are governed by the
rules. To illustrate, all legislation relating to the revenue and
the bonded debt of the United States must be referred to the
Committee on Ways and Means; that relating to judicial
proceedings, civil and criminal law, to the Committee on the
Judiciary; that relating to banking and currency, to the Com-
mittee on Banking and Currency; and so on through the list.
Naturally the committees vary a good deal in importance, some
of them having little to do, and that little of slight conseciuence.
Likewise the size of the committees varies a good deal, the most
important having twenty-one members. Those named above
and some dozen others have this numbc-r. ihere arc a good
many with a mcmbershi[) of from tIiirU;en to sixteen. The
smallest committee has only two members. 'I'he committee
of highest rank is that on Ways and Means, places on which
THE HOUSE OF REPRESENTATIVES — PROCEDURE 159
are eagerly sought by leading members of the House. In addi-
tion to this and the committees on Judiciary, and Banking
and Currency, previously referred to, the list of leading com-
mittees includes those on Appropriations, Interstate and Foreign
Commerce, Rivers and Harbors, Merchant Marine and Fish-
eries, Agriculture, Foreign Affairs, Military Affairs, Naval
Affairs, Post Office and Post Roads, Education, Labor, Reform
in the Civil Service, District of Columbia, and Rules.
The chairman and the other members of each committee
are formally elected by the House, the real selection, however,
being made by the party leaders and the party caucuses. The
plan followed since the change in the rules in 19 10 is for the
Committee on Ways and Means, whose members are selected
by the party caucuses, to act as a committee on committees, and
recommend to the House the committee assignments. The
House then makes the selection official by giving formal ap-
proval. The minority party is represented upon all committees,
its members being selected by the party caucus. The majority,
therefore, permits the minority to name its own committee
representatives, but sees to it that practically all committees,
particularly those that have to do with contentious questions,
are under its own control by a safe margin. For instance, the
Committee on Rules has seven members from the majority
party and four from the minority ; that on Ways and Means
has fourteen from the majority and seven from the minority.
Other committees are divided in about the same proportion.
Power of the Committees. — Though the committees are
the creatures of the House, established for the purpose of ena-
bling it to do its work, yet their position in the House organiza-
tion is so central that they exercise at times tremendous power
of themselves. Practically no action is taken upon a legisla-
tive proposal that has not been under consideration by a com-
mittee. As President Wilson says, " the business of the House
is what the committees choose to make it." As a rule, they for-
mulate the measures reported to the House.' It is true that a
1 The actual work of drafting a committee measure is usually assigned to a sub-
committee. If the bill is partisan in character, the sub-committee is composed
entirely of members of the majority party. In the preparation of committee re-
ports, also, the sub-committee is used. For a discussion of the sub-committees and
their work, see article by Burton L. French, A mcrican Political Science Review,
Vol. IX, p. 68.
l6o COMPARATIVE FREE GOVERNMENT
bill introduced by a member and referred to a committee may
be accepted by the latter as satisfactory with respect to both
form and substance, and be reported to the House practically
without change. On the other hand, they may " pull it about
and alter it, or they may throw it aside altogether and frame
a measure of their own, or they may do nothing, make no report
at all. Few bills ever see the light again after being referred to
a committee." ^
This power of the committees to " pigeonhole " proposed
legislation, and thus kill it, is very great, although their juris-
diction in this regard is not quite so wide as it formerly was.
By a rule adopted in 1910 it is possible for any member, under
decidedly rigid restrictions, however, to move for the discharge
of a committee from " further consideration of any public bill
or joint resolution vhich may have been referred to such com-
mittee fifteen days prior thereto." - This opens the way for
interference on the part of the House when committees fail
to report upon matters referred to them, but this action would
hardly be taken except where a committee was dilatory in con-
nection with some measure that was of general interest and upon
which the House desired action. In that case the committee
would hardly seek to defeat the House in its purpose, although
that is not unknown. The rule may afford relief at times, but
it will not prevent the continued wholesale slaughter of measures
through committee inaction. It is inevitable, indeed, that this
slaughter shall go on by one process or another, because other-
wise the House would be swamped by the veritable deluge of
measures at each session. A large proportion of these bills
would doubtless be killed by the House if they were submitted
for its action. Killing them in committee is a more expeditious
method. The unfortunate thing, however, is that now and
then really worthy and desirable measures are dispatched in this
way, to the serious loss of tlie Nation.
Committee Meetings and Proceedings. — It should be noted,
also, in this connection, that the meetings of the committees
are secret unless the committees wish to have them open to the
public. All their work can be done i)chind closed doors if they
so wish. No one has a right to appear before a committee
' Wilson, " Constitutional Government in the United States," p. oo.
'House Rule, No. XXVII, paragraph 4.
THE HOUSE OF REPRESENTATIVES — PROCEDURE l6i
and express his views as to pending legislation. A committee
may invite particular individuals, or extend a general invitation
to all interested persons to appear and give testimony either
for or against the proposed measures; but if this is done, it is
because the committee wishes to do so of its own accord or
feels that it must in deference to public opinion. The public
cannot demand admission.
Moreover, the proceedings of committee meetings are not
ordinarily officially reported and published as are those of the
House and of the Senate. Therefore, no publicity is given to
committee work except as the newspapers, in response to public
interest, may uncover and publish what was done. Even then,
however, the reports are very meager as a rule, and the mass of
the people is usually in profound ignorance of what transpires
in the committee rooms. This is all the more remarkable when
it is recalled that the real work of legislation takes place in the
committees. It is there that the real debating of measures
occurs, for the House itself does not debate ; it has not the time.
It is by the committees that the information is gathered which
determines the character of the legislation that is enacted,
and it is by the committees that the bills are either drafted
or scrutinized carefully and put in form for submission to the
House. In most instances the latter does little more than give
official sanction to what the committees recommend. Yet,
for the most part, the committees act in secret and their mem-
bers are without that acute sense of personal responsibility
attendant upon wide and full publicity of official acts. That
this is a dangerous practice and lends itself to the uses of the
evil forces of politics, which love the darkness rather than the
light, cannot be questioned. One of the big reforms yet to be
accomplished is in connection with committee procedure.
One practice, however, should be mentioned here, which
is frequently observed and is of great significance, — the prac-
tice of holding public hearings upon pending legislation. This
has become more common in recent years and may be taken
as presaging the time when what is a mere privilege now on
the part of the public may become a right, — the right to be
heard by the committees of Congress upon any measure that
is under consideration. In fact, the public hearing may mark
a most important development in free government. It is
1 62 COMPARATIVE FREE GOVERNMENT
really a unique practice and is the product of American experi-
ence, existing in no other country. It is freely used by both
houses of Congress and by the legislatures of the various States.
Its influence is wholesome and its use should be extended.
Speaking of public hearings, President Lowell says: "They
are, indeed, a highly valuable element in popular government ;
and this is the more true because with the elimination of thorough
discussion from our representative bodies, due partly to the
increase of legislative business, partly to the cutting down of
time, and partly to the large proportion of new members, most
of the real work must be done through public opinion by sample
in the form of committees, and committees without public
hearings are cut off from their best source of light." ^
Influence of Committee System. — That the committees
are essential to the House and have a vital place in its organi-
zation, is obvious at a glance. They make it possible for the
House to do its work. Yet their results are not all beneficent.
One of the points most worthy of emphasis is the degree to
which the unity of the House is broken up by the committee
system. The House is dependent upon its committees. Each
of the committees is a sort of miniature legislature in itself.
Each has its own work to do, and does it with little or no regard
to what the others are doing. They are under no responsibility
or obligation to one another, and go on with their work, regard-
less of whether the results harmonize or not. This unfortunate
consequence is particularly noticeable in connection with fman-
cial legislation. Income, in the form of revenue, and outgo,
in the form of expenditures, are wholly unrelated as far as the
House committees are concerned. The Committee on Ways
and Means has nothing at all to do with the various appropria-
tion committees. The former may favor a policy of niggardly
economy, and the latter one of wasteful extravagance, but there
is no way of bringing them as committees into harmonious
relations in support of a common policy. And not only is there
this complete separation between the revenue-raising and the
revenue-spending rommiltees, but the authority to prepare
appropriation bills is diffused among a number of committees,
each independent of the others in all respects. There are,
in fact, not fewer than nine committees in the House that have
' Lowell, " Public Opinion and Popular Government," p. 256.
THE HOUSE OF REPRESENTATIVES — PROCEDURE 163
to do with the framing of appropriation measures. Unity
under such conditions, of course, is impossible. It not infre-
quently happens that measures involving fundamental conflicts
are reported to the House by different committees, and some-
times such measures become laws. The efficiency that comes
to the House through its committee system is acquired at high
cost. The quality of its work is not always such as to be a source
of pride.
Other unfortunate results of the system are equally clear,
two of which may be stated in the well-known words of Bryce.
" It gives facilities for the exercise of underhand and even cor-
rupt influence. In a small committee the voice of each mem-
ber is well worth securing, and may be secured with little dan-
ger of a pubHc scandal. The press cannot, even when the doors
of committee rooms stand open, report the proceedings of sixty
bodies; the eye of the nation cannot follow and mark what
goes on within them ; while the subsequent proceedings in the
House are too hurried to permit a ripping up there of suspicious
bargains struck in the purlieus of the Capitol, and fulfilled by
votes given in a committee. . . .
" It reduces responsibiUty. In England, if a bad act is
passed or a good bill rejected, the blame falls primarily upon
the ministry in power whose command of the majority would
have enabled them to defeat it, next upon the party which
supported the ministry, then upon the individual members
who are officially recorded to have ' backed it ' and voted for it in
the House. The fact that a select committee recommended it
— and comparatively few bills pass through a select com-
mittee — would not be held to excuse the default of the minis-
try and the majority. But in the United States the ministry
cannot be blamed, for the cabinet officers do not sit in Congress ;
the House cannot be blamed because it has only followed the
decision of its committee ; the committee may be an obscure
body, whose members are too insignificant to be worth blaming.
The chairman is possibly a man of note, but the people have no
leisure to watch sixty chairmen : they know Congress and
Congress only ; they cannot follow the acts of those to whom
Congress chooses to delegate its functions. No discredit
attaches to the dominant party, because they could not con-
trol the acts of the eleven men in the committee room. This
1 64 COMPARATIVE FREE GOVERNMENT
public displeasure rarely finds a victim, and everybody con-
cerned is relieved from the wholesome dread of damaging him-
self and his party by negligence, perversity, or dishonesty.
Only when a scandal has arisen so serious as to demand inves-
tigation is the responsibility of the member to his constituents
and to the country brought duly home." ^
The House Rules. — In the House, as in the Senate, an
elaborate system of rules has been found necessary. With so
large a membership and so much business to be attended to
each session, the House would be in a state of hopeless confusion
if every step in its procedure were not under strict control.
The organization of the House, the duties of its officers, the
work of the committees, the conduct of members, the pro-
cedure on bills and resolutions, the order of business, and
other things as well, are all provided for in minute detail. The
rules of procedure include the principles of parliamentary law
found in Jefferson's " Manual of Parliamentary Practice," based
on the practice of the English House of Commons, and the
standing rules of the House, adopted from time to time to meet
its own special needs. In addition there is the large number
of precedents which have grown up since Congress first assem-
bled in 1789.
The rules now in force are at base substantially the same as
those adopted in the early years of Congress, modified and
extended as occasion demanded. The chief objects sought by
the extension of the rules have been to expedite business, to
centralize control in the House so as to insure orderly, system-
atic procedure, and to prevent the minority, through fili-
bustering and other obstructionist practices, from defeating
the will of the majority. As expressed by the House, the pur-
])oses in view have been : " Economy of time, order, and the
right of a majority to control and dispose of the business for
which it is held responsible." Before 1890, the minority would
frequently block the way to action on the part of the majority
by breaking a f|Uorum through refusal to vote, !)y demanding
the yeas and nays, and by the use of certain privileged motions
such as " to take a recess," and " to adjourn to a day certain,"
upon the amcnrlments to whicli, as well as to the original motion,
the call «jf 1 111 roll could be demanded. As the rules then stood,
' Brycc, " Ttie American ('ommonwcaltli," New and Revised Edition, pp. 162-163.
THE HOUSE OF REPRESENTATIVES —PROCEDURE 165
these motions could be made again and again, without limit,
to the utter confusion of the House. At one time during the
Fiftieth Congress, the House was in continuous session for eight
days and nights. More than a hundred useless roll calls were
taken upon privileged motions at the demand of the minority
for the sole purpose of delay. The House had completely
broken down as a legislative body, and, to its complete de-
moralization, had become the plaything of an obstructionist
minority. Immediate and drastic reform was needed. This
came in the following Congress, under the leadership of one of
the greatest Speakers the House has ever had, the brilliant
Thomas B. Reed, who, in the face of tremendous opposition,
put an end to one of the worst abuses by counting as present
for the purpose of a quorum all members who were in the
chamber, whether they responded to the roll call or not. In
Mr. Reed's opinion the constitutional quorum was not a voting
quorum and " physical presence and constructive absence "
were impossible. The principle he acted on is now embodied
in the House rules and is regularly followed. Another reform
of equal importance was made during the same session when
the Speaker was given power to refuse to entertain motions
which he looked upon as dilatory. The exception to this, of
course, is the call for the yeas and nays, which members have a
constitutional right to make, and which must be ordered upon
the demand of one fifth of the members present, no matter what
the purpose may be. The rule makes it possible, however, to
prevent a great deal of needless delay, and has accomplished
much in the way of expediting business.
One of the rules deserving of special mention is that which
restricts debate in the House. Under a provision adopted in
1841, " no member shall occupy more than one hour in debate
on any question in the House or in Committee." By the rules
the discussion of certain motions is limited to a specified number
of minutes. The five-minute rule is frequently observed when
the House sits as a Committee of the Whole. Under si)ecial
rules brought in by the Committee on Rules as occasion may
demand, the time to be devoted to the discussion of particular
bills may be fixed, and a definite hour set for taking the vote.
No matter how important the measure may be, this time is
always short, possibly only a few hours. This is divided be-
1 66 COMPARATIVE FREE GOVERNMENT
tween the leaders on each side of the question and by them is
parceled out to their respective followers. The demand for
chances to speak is always very great, while the time is very
short. The result is that many of the speeches in the open
House upon questions of the highest importance are only of
five or perhaps ten minutes' length. Thorough debate is
hardly possible under such conditions.
Because of the very limited debate that occurs the House has
been subjected to a great deal of criticism. The value of free
debate is everywhere recognized, yet it is hard to see how the
House, with its 435 members, could possibly do its work with-
out limiting the time of speakers. If debate is to be at all
general, individual members must be restrained. Moreover,
unlimited debate is not without its faults as the experience of
the Senate clearly shows. One of the striking contrasts be-
tween the two houses — and one which is by no means wholly
in the Senate's favor — lies at this point. In this connection
the words of President Wilson are, as usual, suggestive and
interesting :
" Perhaps the contrast between them is in certain respects
even sharper and clearer now than in the earlier days of our
history, when the House was smaller and its functions simpler.
The House once debated ; now it does not debate. It has not
the time. There would be too many debaters and there are too
many subjects of debate. It is a business body, and it must
get its business done. When the late Mr. Reed once, upon a
well-known occasion, thanked God that the House was not a
deliberate assembly, there was no doubt a dash of half-cynical
humor in the remark, such as so often gave spice and ])iting
force to what he said, but there was the sober earnest of a serious
man of affairs, too. He knew the vast mass of business the
House undertook to transact: that it had made itself a great
organ of direction, and that it would be impossible for it to
get through its calendars if it were to attempt to discuss in
open house, instead of in its committee rooms, the measures
it acted upon. The Senate has retained its early rules of pro-
cedure without material alteration, li is si ill a place of free
and prolonged debate. It will not curtail the i)rivilege of its
members to say what they please, at whatever length. Hut
the Senators are (•omi)aratively few in number ; they can alford
THE HOUSE OF REPRESENTATIVES — PROCEDURE 167
the indulgence. The House cannot. The Senate may remain
individuaUstic, atomistic, but the House must be organic, —
an efficient instrument, not a talkative assembly." '
Bill Procedure. — The procedure upon bills and resolutions
is practically identical with that in the Senate. Bills may be
introduced by any member without restriction by depositing
them with the Clerk. If a member desires legislation upon some
subject, but prefers not to draft the measure himself, he may
introduce a petition for a bill of the kind in mind, which will
be referred to the proper committee for drafting. The com-
mittee, of course, is under no obligation to prepare such a bill ;
no more so than it is to report to the House bills that have been
referred to it. Technicallly the committees do not have the
right to initiate measures, but this is of httle moment because
if a committee desires to bring in a bill upon a question which
is within its jurisdiction, any of its members may introduce a
measure of the kind contemplated and have it referred ; then
the committee can proceed to prepare its own draft and report
it to the House. Also the House may instruct aily of its com-
mittees, if it wishes, to prepare and report bills or resolutions.
Messages from the President and communications from the
executive departments when referred to the committees give
them authority to originate bills.
Upon introduction, a bill is immediately referred to a com-
mittee, numbered, and printed. As already noted, the com-
mittee may or may not report it to the House. If it is reported,
the recommendation of the committee may be that it pass as
introduced, or that it be amended in certain ways, or that it
be indefinitely postponed. If the latter be the opinion of the
committee, however, the likelihood is that the measure would
not be reported at all, unless the report was forced under pres-
sure from the House. Not infrequently measures are reported
without recommendation. After a bill is reported to the
House, it is placed on the particular Calendar where it belongs,
from which it will be taken in the regular order. Occasionally
a privileged bill is considered by the House when it is reported
by the committee, but not often. If the bill is a revenue or
an appropriation bill, it is considered in Committee of the
Whole, where it is first subjected to general debate and then to
1 Wilson, "Constitutional Government in the United States," p. 88.
1 68 COMPARATIVE FREE GOVERNMENT
reading for amendment under the five-minute rule. It is
finally reported to the House for formal action. If it does not
require consideration in Committee of the Whole, it is read
a second time, upon report to the House from the committee,
and is open to debate and amendment. Following this step
in the procedure it is up for engrossment and third reading.
The question is on ordering engrossment and third reading at
one vote. If the vote is in the affirmative, the third reading,
by title, usually occurs at once. But objection to this may be
made by any member who may demand a reading in full of the
engrossed copy. If this is done, the bill must be laid aside, of
course, for engrossment, and the vote deferred. A negative
vote on the question of engrossment and third reading defeats
the measure. The final step is the passage of the bill, the
question on this being put by the Speaker at once, without
waiting for a motion from the floor.
After the House has passed the measure and it has been
properly authenticated, it is transmitted to the Senate by
message, where it is referred to a committee and subjected to
practically the same treatment that it received in the House.
If the Senate passes the Ijill without amendment, it is returned
to the House where it goes into the possession of the Clerk
and is immediately enrolled for signature. If the Senate amends
the bill, upon return to the House it goes to the Speaker's table
and at the i)roper time is laid l)efore the House. Each amend-
ment is taken up in turn and voted upon. If the amendments
are accepted, the amended bill is at once enrolled. If they are
not accepted, the House may either ask for a conference with
the Senate or merely send notice of its disagreement, leaving it
to the Senate to take the ne.xt step, by receding from its amend-
ments or asking for a conference.
When a conference is decided upon, each liousr api)oints its
representatives, usually three in number and known as man-
agers. The House managers arc api)ointe(l by the Speaker,
who selects them so as to represent both the majority and
minority positions upon the points in issue, if disagreement
exists. Usually, also, they represent the difierent political
parties. The managers of the two houses really constitute two
distinct committees. The (|uestions they may consider are
(inly iho.^e ujioii \\lii(li llic houses are in disagreement. The
THE HOUSE OF REPRESENTATIVES — PROCEDURE 1 69
conference may be either " free " or " simple." A free con-
ference is one in which the managers may act as they please
upon the questions in controversy, while a simple conference
is one which confines the managers to specific instructions from
the house they represent.
With respect to the instruction of managers the Senate and
the House of Representatives do not agree in their practices.
The former insists on free conferences and only rarely has
given instructions ; it has, in fact, sometimes declined to partic-
ipate in the conference when the House has instructed its
managers. The latter, however, insists upon its right to in-
struct, and usually does so. It is the business of the conference
committees to reach an agreement, if possible, by which the
differences between the houses may be settled. Sometimes
this can be done without serious difficulty, one house receding
from its position or a compromise being agreed upon which
both houses can accept. Occasionally, however, neither house
will yield, and the bill over which the contention has arisen is
lost. If a compromise agreement is reached, the committees
report to their respective houses which proceed to approve or
disapprove of the action taken. If disapproval is given in
either house, the measure is lost unless through further confer-
ence some other solution of the difl[iculty may be found. If
approval is voted by both houses, the measure goes to the
house in which it originated for enrollment. It is carefully
examined by the Committee on Enrolled Bills, which is really
a joint committee, though each branch acts independently.
After the enrollment is completed, the bill is ready for the
signatures of the Speaker and the President of the Senate.
The Speaker always signs first, whether it be a House or a
Senate bill, after which it is presented to the President of the
Senate. It is then ready for transmission to the President
for executive approval or disapproval. If the President
approves, he simply signs the measure and it becomes a law to
take effect at the time designated by Congress. It is then
deposited in the office of the Secretary of State, who is the
custodian of the laws of the United States. If the President
disapproves of the bill, he returns it to the House in which it
originated, with a message stating his reasons for withholding
his signature. It is then for Congress to determine whether
17© COMPARATIVE FREE GOVERNMENT
the bill shall become law, notwithstanding the President's
veto. If both houses pass it by the necessary two-thirds vote,
it becomes a law and is transmitted to the Secretary of State
by the presiding officer of the house which acted on it last.
This brief statement describes, in the main, the stages through
which a bill passes in the process of becoming a law. There is,
of course, a multitude of intricate details of procedure which
cannot be given here. Before leaving the subject, however,
attention should be directed to at least two things. The first
is that the procedure outlined is used for public and private
bills alike. There is no special private bill procedure such
as is used in the British House of Commons.^ This is an un-
fortunate fact because of the very large number of private bills
introduced and acted upon each session. Both houses of Con-
gress could greatly increase their efficiency and improve the
character of their legislation by providing a suitable, more
stringent procedure for private bills. The second point to be
mentioned is that there is no legislative draftsman or drafting
bureau whose duty it is to put bills into the best possible form.
Each member may not only introduce as many bills as he
pleases, but may draft them in any way that suits his fancy.
The result is a vast amount of legislation that is very faulty in
its construction. Congress has been slow to see the value of
expert draftsmanship, such as that afforded by the English
Parliamentary Counsel and by the drafting bureaus in a num-
ber of the American States. The interest in scientific legis-
lation has increased rapidly in recent years, and it is safe to
say that the near future will witness the establishment of a
congressional drafting bureau of some kind. The volume of
business confronting the House of Representatives each session
is so great, and is increasing so rapidly, that greater care and
accuracy in the drafting of measures are absolutely necessary.
As an illustration of the amount of work the House must look
after, Professor Beard says that there were introduced into
the House during the Fifty-ninth Congress 26,154 bills, 257
joint resolutions, 62 concurrent resolutions, 898 simi)le resolu-
tions, and 8174 reports. Of these, 692 public bills and 6940
private bills, mostly ])cnsion measures, were passed.- The
> Below, Chap. XXXV.
* Beard, " American Government and I'olilics," New and Revised lulilion, p. ^71.
THE HOUSE OF REPRESENTATIVES — PROCEDURE 171
difficulty of legislating wisely, under such conditions, with
proper regard to form as well as substance, is superlatively
great.
Political Parties in the House. — As has been suggested
repeatedly in the foregoing discussion, the political parties are
vital factors in the organization and activities of the House of
Representatives. Some further comment as to their place
and influence is necessary.
Attention has been called to the tendency of the committee
system to destroy the unity of the House of Representatives.
This tendency is a very real one, whose significance is not to
be underestimated. Yet there is a degree of unity which
should not be overlooked, for without it the House would be
hopelessly inefficient. This unity comes from the fact that
the party controlling the House makes itself accountable for
the conduct, not only of the House as a whole, but also of the
committees. The House is always organized on party lines.
The Speaker, the House officers, the chairmen, and majority
of the members of each committee are all members of the
dominant party. The House is organized so as to permit the
majority party to carry out its will. And, as we have seen, the
rules of the House have been modified from time to time so as
to insure this result against attempts at obstruction on the
part of the minority. The responsibility of the party in con-
trol, it is true, is not so direct and inescapable as it ought to be,
but by no means can it be said to be non-existent. Particularly
is this responsibility forced upon the majority party for its
action upon questions arising in the field of contentious politics.
Again and again the voters at the polls have given rebuke to
those in control of Congress for failure to carry out their man-
dates upon partisan, controversial questions, such as, for ex-
ample, the tariff. However, questions of this kind are few in
number. It is only on comparatively rare occasions that
either of the houses divides on strict party lines. Upon most
questions the lines of cleavage cut across party divisions. This
is an important fact. Yet the party lines exist, and party
responsibility at times is keenly felt. Moreover, the parties,
through their leaders, are constantly maneuvering for position
in order to have the advantage in the congressional and pres-
idential elections. The minority party, particularly, is alert
172 COMPARATIVE FREE GOVERNMENT
and active in its efforts to discredit the majority, to " put it
in a hole," as the saying is. This critical, at times even hyper-
critical, attitude of opposition is directed most frequently towards
the President and those in control of the administration of
government. In fact, the executive is never free from this,
whether he is the leader of the party which is in the majority
or in the minority in the houses of Congress. It is the business
of the members of the President's party to defend the adminis-
tration, to answer the charges made against it by the opposition,
whether unjust or just. The discussions in both houses are
filled with this sort of thing. As a result the issues to be fought
out in the elections are for the most part formulated in Congress,
and the leadership of the parties determined. This fact, re-
gardless of whether or not strict party votes are few or many,
gives to Congress a central place and influence in the organized
party life of both the Nation and the States. The leadership
of Congress and its influence upon party organization and
activity cannot be measured, indeed are not even suggested,
by the degree of partisanship and party strife to be found in
the legislative work of the Senate and the House. ^
The Party Caucus and House Leadership. — The distinctive
party organization in Congress is the caucus. This is found in
each house and is maintained by each of the parties. The
function of the caucus with respect to the determination of
legislative policies has already been described in the chapter
on the Senate.- Where caucus action is taken by the majority
party upon a pending measure, the real decision of the matter
is transferred from the properly constituted legislative body,
established by the Constitution, to an unofficial, voluntary
group, which acts without the slightest legal responsibility.
This is no less true of the House caucus than of the Senate.
All members of a party are members of that party's caucus.
Participation in the caucus is voluntary, however ; any one
may refuse to take part if he wishes, although the recalcitrant
member is usually sui^jccted to a good deal of pressure from his
I)arty associates. The caucus is strictly a party institution
anrl its sole purpose is to look after |)arly iiiti-rc-sts.
' For a fliscussion of conRrcssional Icailcrship and llie relation of ConRrcss to
the political parties, see Macy, " Party Organization and Machinery," Chap. IV.
* Above, p. 134.
THE HOUSE OF REPRESENTATIVES — PROCEDURE 1 73
Aside from the part the caucus frequently plays in deter-
mining the party attitude upon pending legislation, it is an
institution of real significance, for it is in the caucus that to a
large degree the selection of party leaders in Congress actually
takes place. It is in the caucus of the majority party that
the choice of a Speaker is really made. The formal election
in the House is merely a ratification of the caucus action. It
is in the caucus also that the committee on committees is ap-
pointed. It is here that the party's floor leader is named and
the chairmen of the leading committees practically agreed upon.
It is here that the party whips are chosen, and the members of
the Congressional Campaign Committee, an important branch
of the national party organization.^ The caucus is governed
by rules of its own adoption, and may be called for any proper
purpose upon the request of a sufficient number of its members.
Its meetings are behind closed doors, although the general
public is usually informed by the newspapers as to what tran-
spires.
The minority caucus, in its organization and functions, is
identical with that of the majority. It differs from the latter
only in the fact that it does not have the votes to control the
action of the House. It selects the minority floor leader who is
always given the complimentary vote of his party associates
for the position of Speaker. It looks after the committee as-
signments of the minority, chooses the whips,- names the
members of its party's Congressional Campaign Committee,
and frequently determines the party position upon the legis-
lative proposals of the majority. It is its business to make
all the trouble it can for the majority through criticism and
opposition.
Lack of leadership is one of the leading criticisms brought
against the House of Representatives by many writers upon
American government. There is merit in the criticism. Re-
ponsible leadership of the type that characterizes parliamentary
or cabinet government certainly does not exist. To say,
however, that there is no leadership at all, even that there is
no effective leadership in the House, is very far from correct.
One of the prime functions of the party caucuses which lie
back of the formal, official House organization, is to provide
' Below, Chap. XVII. s Below, Chap. XL.
174 COMPAR-VnVE FREE GOVERNMENT
capable leaders and maintain party discipline. The men who
stand out conspicuously as leaders are the Speaker, the lloor
leader of the majority, who is always the chairman of the
Ways and Means Committee, and the floor leader of the minority.
These men are all selected by their respective party caucuses
and are chosen because of their ability, gained through long
experience in the House, to guide their parties in the parliamen-
tary and legislative controversies that arise. Under the older
rules the Speaker was preeminent in his position as majority
leader, and had as his chief lieutenant the majority floor leader.
Under the rules in force since 1910 the Speaker has lost and
the floor leader has gained in power and prestige. It is the
latter who is now most active, and if he does not surpass the
Speaker in actual power, he is at least the Speaker's equal. The
developments of recent years seem to indicate a still larger
sphere for him, and make him comparable in some respects to
the Old World prime ministers so far as they are engaged in
legislative work. He has nothing to do, of course, with admin-
istrative or executive activities. Any fair, adequate discussion
of the House of Representatives, it is clear, must give recognition
to the commanding position of the majority floor leader, and
accord to the House a leadership that is clearly defined and
highly efficient. As a matter of fact the House could not do
its work without such leadership.
General Observations. — In concluding this discussion of
the House of Representatives several significant facts should
be noted.
1. The House is materially diffcrenl from what it was ex-
pected to be by the framers of the Constitution. It is in no
sense the uncontrolled, turbulent body that was anticipated.
Quite the contrary, in fact, is true. No other branch of the
government is under more rigid discipline.
2. Traditi(jnally, the House is the popular branch of the
national legislature. Yet in practice it is no more so than is
the Senate. In fact, it may be doubterl whether oftentimes
it is as directly resjjonsive to public ojjinion as is the Senate.
,5. There is great inequality among members of the House
with respect to power and influence, aside from that which
is due to difference in natural abilities. There are always a
few in any legislative bodx' wlio arc bound to be more influential
THE HOUSE OF REPRESENTATIVES — PROCEDURE 1 75
than their associates ; these are the leaders. But the House
organization is such that, as a rule, a comparatively few control
the House's action. They are in a position to thwart the
wishes of members who are their equals under the Constitu-
tion.
4. As a legislative body the House has not held its own with
the Senate. Unquestionably the Senate is a more vital factor
in legislation than is the House. Even the exclusive power to
originate revenue legislation, given to the House by the Con-
stitution, was not sufficient to keep it in the ascendancy. As
we have seen, the Senate has been able practically to nullify
that constitutional prerogative through its right of amendment.
The other exclusive powers of the House, — to vote impeach-
ments and choose the President in case of failure to elect on the
part of the electoral college, — though at times of very great
importance, are not of a nature to strengthen it in legislative
controversies with the Senate.
5. The House, to a notable degree, has become subject to
the influence of the President. Executive leadership in legis-
lation has been much more successful in the lower house than
in the upper. By establishing proper relations with those
who are at the head of the House organization, a strong Pres-
ident can force through the legislative projects that he favors.
6. The House does not have the weight with the general
public that it once had, although it has gained materially in
mere efficiency as a legislative machine. By giving so much
power to its leaders, by establishing such effective discipline,
by dividing up the work among so many committees, and by
practically eliminating debate, the House has cut itself off from
the means of influencing in any profound way the thought of
the Nation. The discussions in the Senate are of much more
significance in this respect than anything that is done in the
House. And most powerful of all is the influence of the Pres-
ident.
REFERENCES
Beard. American Government and Polilics, Edition 1910, Chaps. XII, XIII,
XIV.
Bryce. The American Commonwealth, Edition 1910, Vol. I, Chaps. XIII
to XXI inclusive.
FoLLETT. The Speaker of the House of Representatives.
176 COMPARATIVE FREE GOVERNMENT
Ford. The Rise and Gro-cvUi of American Politics, Chaps. XIX, XX.
Hart. Actual Government, Chaps. XIII, XIV.
McCall. The Business of Congress.
McCoNACHiE. Congressional Committees.
Reinsch. American Legislatures and Legislative Methods, Chaps. I, II.
Reinsch. Readings on American Federal Government, Chaps. VII, VIII.
Wilson. Constitutional Government in the United States, Chap. IV.
WooDBURN. The American Republic, Chap. V.
Young. TIte New American Government and its Work, Chap. III.
CHAPTER XIV
The Party System
One of the most interesting, even phenomenal develop-
ments in the political life of the United States, is the rise
and growth of political parties. There is nothing in the expe-
riences of other nations, not even England, that is comparable
with it. Particularly is this true with respect to the growth of
party organization, for in no other country of the world has the
machinery of party life and activity been developed to so high a
degree of perfection and efficiency as in the United States.
This is, indeed, one of the marvels of American politics, and no
student can understand the operation of government, in Nation,
States, and minor political divisions as well, unless he is familiar
with the purposes, organization, and methods of the poHtical
parties.
As in England, the parties hold a central place in the govern-
ment, although the government of the United States is not a true
party government, as is the case with the government of Eng-
land.^ The principle of the separation of powers, fundamental
in the United States Constitution, makes genuine party govern-
ment impossible. Yet usually the United States is spoken of as
being governed by parties; and to a very considerable degree
this is true in fact as well as in appearance. It is the parties that
furnish the motive power for running the government machine.
It is the parties that control the nomination and election of the
President and the members of Congress. It is the parties, to a
large degree, that determine national policies. The great polit-
ical struggles that stir the Nation to the depths are party
struggles. If the parties were suddenly to cease to exist, the
operations of government would be most seriously affected.
Yet the political parties are wholly without constitutional
status, and only in a minor way have they received formal legal
» Below, Chaps. XXX, XXXVII.
N 177
178 COMPARATIVE FREE GOVERNMENT
recognition from the national government. They are volun-
tary, extra-constitutional bodies. They are a vital part of the
working constitution, but have no place in the written Consti-
tution. They are the product of custom and tradition, the
outgrowth of the Nation's own experience, and not the result
of formal action by any legally constituted authority.
Constitution Makers and Political Parties. — The framers of
the Constitution did not beUeve in political parties. In fact,
they vigorously opposed party struggles and feared for the
existence of the Republic if parties should spring up. They
desired a government that would be free from party or " fac-
tional " strife, and thought that with the constitutional system
finally agreed upon their hopes, in the main, would be realized.
This attitude was given frequent expression in the constitutional
convention and in the discussions that ensued when the Consti-
tution was submitted for ratification. James Madison was repre-
sentative of his associates when he said that among the many
advantages " promised by a well constructed Union, none de-
serves to be more accurately developed than its tendency to
break and control the violence of faction. The friend of popular
governments never finds himself so much alarmed for their char-
acter and fate, as when he contemplates their propensity to this
dangerous vice." ' Washington, also, in his famous Farewell
Address solemnly warns the people against the " baneful effects
of the Spirit of Party." This, because of its " continual mis-
chiefs," it is the duty of a wise people to discourage and re-
strain. " It serves always to distract the Puljlic Councils, and
enfeeble the Public athiiinistration. It agitates the community
with ill-founded jealousies and false alarms, kindles the animos-
ity of one i)art against another, foments occasionally riot and
insurrection. It opens the doors to foreign inlluence and
c()rru[)tion, which find a facilitated access to the Government
itself through the channels of party passions. Thus the policy
and the will of one country are subjected to the policy and the
will of another.
" There is an opinimi that i)artii's in free countries are useful
c^iecks upon the administration ot the Covernmcnt and serve
to keep alive the S|)irit of Liberty. This within certain limits
is probably true — and in Governments of a Monarcliical cast,
' The Fcilcraliil, No 10.
THE PARTY SYSTEM 179
Patriotism may look with indulgence, if not with favour, upon
the spirit of party. But in those of the popular character, in
Governments purely elective, it is a spirit not to be encouraged.
From their natural tendency, it is certain there will always
be enough of that spirit for every salutary purpose, — and
there being constant danger of excess, the effort ought to be, '
by force of pubhc opinion, to mitigate and assuage it. A fire
not to be quenched, it demands a uniform vigilance to prevent
its bursting into a flame, lest, instead of warming, it should
consume."
That this was the attitude of the constitution makers is beyond
question, and yet it is a bit hard to see how they could have failed
to comprehend the inevitableness of party activity. Party
spirit was even then becoming active and parties were forming.
Indeed, the constitution makers themselves, at first uncon-
sciously but later with full recognition of what they were doing,
contributed to the upbuilding of those very agencies which, in
their former opinion, endangered the Republic. Washington's
address was hardly finished before party spirit blazed forth and
the fines began to form for the contest over the selection of his
successor.
Origin of Parties in America. — The origin of the parties is
not hard to discover, although the exact moment when parties
became a reality, of course, cannot be fixed. Certainly it is
true that prior to the Revolution there were no real parties in
the American colonies. Indeed, the same may be said of the
period of the Revolution. During the Colonial era the people
were divided into two groups or factions corresponding to the
factional or party divisions in England. Accepting the English
terminology, one was called Whig, and the other Tory, and each
sympathized in general with the views of the party of its own
name in the mother country. In the period of the Revolution,
also, there were two factions. The Whigs supported the Revo-
lution and were sometimes called Patriots ; the Tories opposed
the Revolution and were known as Loyahsts. But it is far
from correct to consider these groups true political parties.
They were merely factions, and the distinction between poUtical
factions and political parties is clear and unmistakable. The
party may come into existence through the faction, may grow
out of it, but the two are fundamentally different in their nature.
l8o COMPARATIVE FREE GOVERNMENT
The party is characteristic of free government, while the faction
is characteristic of despotism.^
It was not until the time of the constitutional convention,
1787, that there sprang up certain fundamental differences of
opinion which resulted in the organization of political parties.
In the debates of the convention and the discussions which
occurred in all the States upon the question of ratifying the Con-
stitution, there developed one great, fundamental issue with
respect to the nature of the government. This issue involved
the powers of the States as against those of the new national
government provided for in the Constitution. Those upon one
side sought a strong and virile central government, placing
emphasis upon the elements of unity and efficiency ; those on the
other wished to limit the national authority to the lowest point
possible, placing emphasis upon individual liberty and the
rights of the States. In the vigorous discussion which followed
the submission of the proposed Constitution to the people of
the States for their action, the prominent, immediate issue was,
of course, whether or not the Constitution should be ratified.
Many and varied were the arguments advanced for and against
ratification ; and many and varied were the principles and issues
dragged into the debate. But back of all these lay the supremely
important issue, just referred to, involving the relationship
between States and Nation ; and it was because of this that the
first political parties came into e.xistence, — the one, standing
for national power, with Alexander Hamilton as its most active
leader, and the other, standing for the States, under the leader-
ship of Thomas Jefferson. There were, in addition to this under-
lying issue, involving the interpretation of the Constitution,
specific questions of policy brought forward during Washington's
administrations, about which radically dilTering opinions were
held, and which accentuated the development of part\- spirit and
party activity. Although forming, it cannot be said that the
parlies actually existed until it became plain that Washington
would not accef)t a third term as President. When that fact
was made known, the i)arty alignment speedily followed and
the Nation was soon in the ihrofs of a bilter ]);uiisan struggle
• For a discussion of the nature of the modern political party and the distinction
between party and faction, see Macy, " Political I'arlies in the United States,"
Chaj). I.
THE PARTY SYSTEM l8l
of the kind Washington condemned with such solemn earnestness
in his farewell address.
The party of Hamilton was called the Federalist party, and
that of Jefferson the Democratic-Republican party. The
latter was sometimes called Anti-Federahst. It should be noted,
however, that the use of these names did not identify the two
parties with the groups which were contending over the ratifica-
tion of the Constitution and which made use of these terms.
Those who were in favor of the ratification were called Federalists
and those who opposed ratification were called Anti-Federalists.
In the main the party of Hamilton, which bore the name of
Federalist, was made up of those who worked for ratification,
but not exclusively so. Some of those most active at first in
opposition to the Constitution, joined with Hamilton. Like-
wise, the party of Jefferson, though in the main composed of
those who opposed the acceptance of the Constitution, was not
exclusively so, for many of those who worked untiringly for the
ratification of the Constitution, joined with Jefferson in pro-
moting the Democratic-Repubhcan party.^ Jefferson himself,
though not a member of the convention which framed the
Constitution, was favorable to its acceptance and helped set
the new government on its feet. The Jefferson party, however,
was the party of strict construction and was opposed to the
extension of national power through the interpretation of the
Constitution by the courts. The Federalists, on the other hand,
desired a broad, liberal interpretation and full recognition of
national authority.
It is not the purpose here to give, even in brief, the history
of the political parties. All that is desired is to make plain the
fact that the origin of the parties is to be traced to this funda-
mental issue involving the extent of the national power and its
enlargement through constitutional interpretation. The an-
tagonistic views that prevailed with respect to this question
made it inevitable that differences of opinion would arise over
specific questions of national policy ; and out of these differences
grew the political parties.
Separation of Powers and Party Development. — One other
exceedingly significant point must be considered in accounting
for the swift development of the parties ; and that is the inevi-
* Woodburn, " Political Parties and Party Problems in the United States." p. 13.
1 82 COMPARATIVE FREE GOVERNMENT
table lack of harmony between the legislative and executive
branches of the government under the separation of powers pro-
vided for by the Constitution, l^hese departments were not
only separated, but were to be kept so through a specific defini-
tion of the powers and duties of each. Moreover, each was to
spy on the other, as it were, and both were to be held in their
proper places by an elaborate system of checks and balances.
Antagonism, friction, conflict are unavoidable under such an
arrangement. Yet harmony, good will, and cooperation between
these departments are essential in any smoothly working,
efl5cient government. Without a reasonable amount of co-
operation between these branches the machinery of government
will not run. The need and value of this were not adequately
comprehended by the framers of the Constitution, while the
dangers were greatly exaggerated. Only one result could ensue.
The gap, wide and deep, between the executive and legislative
departments must be bridged over in some way or other. Some
agency must be brought into being to establish a workable rela-
tionship between them. If this could not be done in a formal,
constitutional manner, then some informal, extra-constitutional
device must be discovered. This unifying, harmonizing function
must be performed.
It happens that this gap is bridged, this unifying function is
performed, by the poUtical parties ; and in doing this the parties
render to the Nation one of their greatest services. It is the
function which the cal^nct performs in a parliamentary system
of government, and without which ceaseless confusion and dis-
cord would prevail. The parties fill out with ilcsh and l:)lood, .so
to speak, the skeleton organization of government set up by
the Constitution. " Party organization acts as a connective
tissue, enfolding the separate organs of government, and tending
to establish a unity of control which shall adapt tlic government
to the uses of popular sovereignty." '
It cannot be said that the parties actually grew out of this
sharp sei)aration of governmental deparlnunts, which, from the
very nature of things, must be in close and harmonious relations;
as we have seen, parties were forming even before the new govern-
ment was set in motion. But it can be said that the develop-
ment of the parties was greatly accentuated by this separation.
• Ford, "The; Rise ;in<l (Innvth of American I'olitics," p. 215.
THE PARTY SYSTEM 183
Moreover, the conclusion must be that, even though there had
been in the beginning no clash of opinions over the interpretation
of the Constitution and the powers of the States and of the
Nation, sooner or later the political party or some agency similar
to it would have been devised to discharge this unifying, co-
ordinating function. It is, therefore, well within reason to
assert that the American party system is the resultant of the
peculiar constitutional organization of the legislative and execu-
tive departments, and it is proper to emphasize this particular
unifying function of the parties in connection with a discussion
of their origin and early development. In spite of the hopes and
beUefs of the constitution makers to the contrary, parties were
inevitable ; the very structure of the government made them so.
Character of the Party System. — The American party sys-
tem, like the English, is of the dual party type, and is funda-
mentally different in its nature from the group system that pre-
vails in the countries of Continental Europe, where, in a single
legislative assembly, there may be a dozen or more political
parties. With the exception of a short period of transition
following the break-up of the Federalist party, there have always
been in the United States two leading parties which struggled
for the control of the government. Many so-called third parties
have appeared and disappeared in the course of the Nation's
history, but the two-party character of the system has been
consistently maintained.
The theory of the system is easily stated ; and the mere state-
ment of it makes plain the fact that it has never been in perfect
operation. That could not reasonably be expected, indeed, since
the system has never been fully understood nor fully approved
by the American people. Until this is so, the system cannot be
said to have had a fair trial. It is possible that it never will have
a fair trial since, although the typical American view is that the
government of the United States is a government by parties,
there is a large and perhaps increasing number of people who
profess not to believe in parties and seek to thwart the develop-
ment of a thorough-going party system. The theory involves
the division of the voters into two groups and the maintenance
of two great organizations, evenly balanced as to numbers, under
the guidance of experienced, capable leaders, and with local
organizations sustained in every part of the Union. The two
1 84 COMPARATIVE FREE GOVERXMEXT
parties include all the voters and each must be effectively
organized, from the Nation on down to the smallest poUtical
subdivision. These parties are like huge armies, trained and
ready for battle. The object of their struggles is the control of
the government, not for the purpose of destroying it, or under-
mining it, or subverting its constitutional structure, but for the
purpose of using its power and its agencies for putting into effect
certain public poUcies which the majority of the voters demand
and for which the winning party stands. Each of the parties
seeks to serve the whole Nation and therefore represents the
whole Nation. The American party, according to the theory
on which it rests, cannot represent a locality or a section, but
must represent the whole country ; it cannot represent a partic-
ular class, but must represent all classes ; it cannot represent
a special interest, but must stand for the totality of interests.
If a party becomes the champion of any particular policy, like
tariff protection, or free trade, it must rest its claims to preference
and its advocacy of the policy for which it stands upon the bene-
fits and advantages that will come to all classes and interests,
and not upon those that will come to a particular class, or
group, or section. Each party contends that the welfare of the
whole Nation is best promoted and protected when it is in control
of all the departments of government and its policies are being
carried out. And because each party must stand for the whole
State, representing all sections and all interests with equal
fidelity, each must take side upon a large number of questions,
involving many unrelated subjects. A parly of a single issue
cannot be a true national party, because the interests of the
Nation are never bounded by the limits of a single problem.
Back of each party's position upon questions of national policy,
however, there is a more or less vague, indefinite i)()litical phi-
losophy for which each has come to stand. Each l)ccomes tra-
ditionally associated with certain tendencies, the champion of a
few underlying principles, which are involved, sometimes directly
and sometimes remotely, in the political controversies which
arise. Thus, by way of illustration, the Democratic Party,
which is the only one that has been in existence during the whole
of the Nation's life, is traditionally the champion of individual
or " personal " liberty and of the rights of the States against the
Nation. The Federalist traditions concerning nationalism and
THE PARTY SYSTEM 1 85
a strong central government were inherited by the Republicans,
through the Whigs.
As suggested, this theory of the party system has never been
put into full practice. The parties have always fallen far short
of what the theory demands. The system in practice bristles
with imperfections. The parties have not always been truly
national ; indeed, the Democratic party is the only one that may
be said to have met this requirement. They have not always
been evenly balanced and fully organized in all localities. They
have not always been actuated by a truly national spirit and
free from the influence of special interests. Moreover, third
parties have sprung up from time to time, and have interfered
seriously at times with the normal working of the party system.
Yet with all its imperfections and failures, and notwithstanding
the obvious evils and difficult political problems to which it has
given rise, the American party system has been a most useful
agency in the development of the American democracy. It has
been a help and not a hindrance. Because of it democracy is
farther along the path of achievement, free government rests
on a more solid foundation. ^
Beginnings of Party Organization. — What has been said thus
far has had to do in a general way with the political parties as
agencies of government. It remains to treat in detail of the
development and present status of party organization, and
analyze and describe party methods, activities, and problems.
The parties are dependent upon their organization. The char-
acter, success, and power of a party rest upon its organization.
Party practices are evolved by it and party problems spring
from it. It is, therefore, in the organization and machinery of
the parties that the greatest interest lies for any one who wishes
to comprehend clearly the real function and service of the party
system.
Party organization in the United States is a highly developed,
complicated thing. Like government it has evolved from the
simple to the complex. Beginning with small, voluntary, iso-
lated poHtical clubs, it has grown into a huge political institution,
nation-wide in its reach, with ramifications into every nook and
1 For a fuller discussion of the theor>' and nature of the .American party system
and the influence of third parties, see Macy, " Political Parties in the United
States," Chap. XII.
1 86 COMPARATIVE FREE GOVERNMENT
corner of the land and essential to the orderly on-going of gov-
ernmental processes. Without their organizations the parties
would fall to pieces; and without the parties the government
would practically cease to operate.
It is difficult, without going into a lengthy historical disserta-
tion, to make clear the real beginning of organized party activity.
The subject may be approached from the top or from the
bottom ; from the manifestations of party life in national affairs,
particularly as related to the nomination of candidates for the
presidency and vice presidency, or from the evidences of a
developing party spirit in the local communities revealed by the
organization of voluntary societies or clubs for the propagation
of specific governmental policies. The Congressional Caucus,
the first device for the selection of party candidates for the
presidency proved weak and did not long survive, however, while
the local organizations grew strong and possessed elements of
permanent value. While proper enough, therefore, to begin
with a description of the Congressional Caucus, it is better to
put the emphasis of first mention upon the voluntary local club.
It is, indeed, out of the habit of association on the part of the
common people as shown in these local societies that the enduring
party organization has grown. The fact is that this permanent
party organization grew from the local community on up to the
central government. Even before the Revolution the local cau-
cus was known and its value proven. Hence, when the time
came for real party Hfe and party struggles, the agency for
effective action was at hand.
To Thomas Jefferson, skilled in the art of political manage-
ment, belongs the credit of first discerning clearly the value of the
local association as an instrument of party activity. When, as
Secretary of State, he found himself in serious contro\er.sy with
the Washington administration, he ])egan to organize his fol-
lowers in opposition. An ardent advocate of individual liberty
and local self-government, he encouraged the formation of local
Democratic Clubs to resist what he considered the central gov-
ernment's encroachments. This work went quietly on until
the Jeffersonian or Democratic-Republican party was locally
organized, to a greater or less degree, in all the States. The
afiministration party, the followt rs of Washington and Hamilton,
made little effort to organize local societies in support of their
THE PARTY SYSTEM 187
policies. In fact, the Federalists never were thus locally organ-
ized. They developed and used the Congressional Caucus at the
top, but they apparently cared nothing for the local caucus at
the bottom. The result was vigor and permanency for the party
of Jefferson, which still lives in the Democratic party, while the
Federalist party soon became extinct. The American pohtical
party is institutional in character ; it fulfils local as well as gen-
eral needs. And it is the local organizations of the kind Jef-
ferson encouraged which afford proof of this and give to the
parties enduring vitality.
The Congressional Caucus. — In its national aspect, party
organization has always centered around the nomination and
election of candidates for the presidency and vice presidency.
Various nomination methods were used before the well-known
convention system was established. A word about these is
desirable.
The first agency set up for the selection of party candidates
for these high ofiices was the Congressional Caucus to which
reference has already been made. As the name implies it was an
institution that grew up within the national legislature. It was
first used as a nominating agency by the Federahsts in connection
with the presidential election of 1800. Its meeting was secret
and was attended only by Federalist members of Congress.
A candidate for the presidency and one for the vice presidency
were nominated and the members of the caucus were pledged to
try to obtain the electoral votes of their respective States for these
candidates. News of the caucus leaked out, however, and soon
after the Republican members of Congress held a similar meeting
in secret and nominated candidates. At the next presidential
election, in 1804, the Congressional Caucus again appeared, but
this time its meeting was not secret. The Federalists did not
hold a caucus because of their demoralized condition as a party.
The Republicans, however, used it openly and continued to use
it as the regular method of selecting candidates until its final
overthrow. The last Caucus held was that of 1S24.
To understand the Congressional Caucus it is necessary to
recall the constitutional provision relating to the choice of Presi-
dent and Vice President as it was before the twelfth amendment
was adopted.^ The presidential electors, chosen by the States,
1 Above, p. 39.
1 88 COMPARATIVE FREE GO\ERXMENT
were to vote for two persons, — the one having the highest
number of votes, provided this was a majority of the whole
number of electors, to become President, and the one receixing
the next highest number to become Vice President. This might
have been a satisfactory arrangement if the political parties had
not appeared on the scene. Each of the parties was eager to
control both offices ; yet there was no assurance that this result
could be attained unless there was agreement upon candidates.
The majority party might divide its vote among several candi-
dates and so throw away its opportunity. To prevent this,
if possible, the FederaHsts made use of the Congressional Caucus,
and the Republicans, seeing the value of the scheme, also took
it up. The candidates went before the voters with increased
prestige because of the caucus indorsement.
The caucus was never popular. It was constantly under
suspicion and, in fact, met with decided opposition from the
beginning. There were several reasons for this. For one thing,
the people did not approve of the secrecy that surrounded its
meetings. It appeared to be an attempt on the part of a few
leaders to gain control of the new government, possibly to sub-
vert it. Again, the Caucus was clearly in violation of the spirit
and purpose of the Constitution. The presidency was not
to be a prize for party contests. To accept the Caucus plan was,
in substance, simply to set aside the constitutional method of
choosing the President. Furthermore, and perhaps most im-
portant of all, the Caucus endangered the independent relation-
ship between the legislative and executive departments. On the
one hand it threatened the subjection of the President to Con-
gress which might give its indorsement to a subservient weakling,
and on the other, the submission of Congress to a powerful Presi-
dent who might curry favor with its members and either per-
petuate himself in oflice or dictate his successor. Either was
dangerous and subversive of the Constitution. The separation
of the departments was a safeguard of the people's liberties and
was to be scrupulously maintained. For these and other reasons,
the Caucus became an object of increasingly bitter opjwsition
until its abandonment was forced upon Congress.
Yet, beyond question, the Caucus served a highly useful
purpose. It furnished leadership for the parties at a time when
cai)ablc leadership was of vast importance. At that lime modern
THE PARTY SYSTEM 1 89
means of communication and transmission of intelligence were
entirely lacking. It was difficult for the people throughout the
States to keep in touch with national affairs. Under the cir-
cumstances the natural leaders were those who were at the
national capital in charge of the government. Members of
Congress understood both the needs and problems of the Nation
and the desires and demands of their constituents. No other
group of citizens was in a position to render so large a service in
the way of crystallizing party sentiment in support of party
policies and candidates. Through the Caucus, members of
Congress exerted a powerful unifying influence, and in this way
did a necessary work. The consciousness of party life was not
keen, at first, and not generally diffused. The Congressional
Caucus, therefore, was an agency that was suited to the time in
which it originated. Within Congress, party lines were sharply
drawn ; without, they were not. It was natural, therefore, for
its members to seek to direct their respective parties in the selec-
tion of candidates as well as in the formulation of policies.
Moreover, the Caucus tended to establish that cooperation
between the legislative and executive departments which expe-
rience has shown to be so essential. It was a step, the first step,
toward party solidarity and party responsibility for the conduct
of the national government. Valuable as it was, however, for
the time being, the Congressional Caucus was not suitable as a
permanent system of nominating presidential candidates and
soon outlived its usefulness.
REFERENCES
Beard. American Government and Politics, Edition 1914, Chap. VI.
Ford. The Rise and Groidh of A merican Politics, Chaps. VII, XII, XXIII,
XXIV, XXV.
GoODNOW. Politics and Admiuislraliou, Chaps. VII, VIII, IX.
Jones. Readings on Parties and Elections, pp. 28-46.
Macy. Party Organization and Machinery, Chaps. I, II, XXII, XXIII.
Macy. Political Parties in the United States, Chaps. I, II, XII.
Meyer. Nominating Systems, Chap. I.
OsTROGORSKi. Democracy and the Party System in the United States, Chap. I.
Smith. The Spirit of American Government, Chap. VIII.
Wilson. Constitutional Government in the United States, Chap. VIII.
WoODBURN. Political Parties and Party Problems in the United States,
Chaps. I, II.
CHAPTER XV
The National Convention
The passing of the nominating caucus left the parties without a
regular, official way of selecting candidates. A period of con-
fusion in party organization ensued. No systematic procedure
was observed. Miscellaneous methods of making nominations
were everywhere used. Sometimes presidential candidates
were brought forward by State legislatures, acting formally and
officially. Sometimes nominations were made by caucuses in
the State legislatures, acting in a spirit and manner similar to
those of the old Congressional Caucus. Again, candidates were
placed in nomination by local and State conventions, by mass
meetings, by newspapers, by individuals.' One or all of these
methods, indeed, might be employed in a single State. The
period between the decline of the Congressional Caucus and the
estabUshment of the convention system was one of transition
and the nomination processes were informal, unauthoritative,
and inconclusive. There was a spirit of revolt against dictation
by party leaders and a demand for a thorough democratization
of party organization. The ultimate outcome was the nominat-
ing convention which has played so big and vital a part in .'\mcri-
can politics. This from the beginning was fundamentally
different from the nominating caucus, which was an unauthor-
ized body. The convention was made the authorized agent of
the i)arty and received its power from the members of the party
acting tlirough their local organizations. The rise of the con-
vention, in fact, is one of the evidences of the rising tide of democ-
racy which characterize the " Jacksonian period " of American
history.
The first national party convention was held in 1831 by the
Anti-Masons, a third party. This was a new thing in national
politics, but the convention as a nominating agency had already
been used in the Slates. In 1832 both of the leading parlies, the
' Uallingcr. " Nominations for Elective OfTico," p. 29.
I go
THE NATIONAL CONVENTION 191
National Republicans and the Democrats, called conventions.
From that time until the present, with the single exception of
the Whigs in 1836, the candidates of all parties for the presidency
and vice presidency have been nominated by conventions. The
convention system, therefore, has been in use during the greater
part of the Nation's history, and until very recent days remained
essentially what it was in the beginning, although necessarily it
has been modified somewhat to meet the needs of party growth.
What the future has in store for it, future events must reveal.
It has been an institution of such vital significance and interest
and has influenced so profoundly the development of American
democracy, that further treatment of it is necessary. It is the
apex of a huge system of party machinery which involves all
the States of the Union and all their multitudinous poUtical sub-
divisions. In no other country of the world is there anything
like the American national convention.^
The Convention's Functions and Composition. — The func-
tions of the convention are threefold. First, to formulate and
officially adopt for each presidential election the party platform,
the principles and policies for \vhich the party stands ; second, to
nominate its candidates for the presidency and the vice presi-
dency; and, third, to choose a National Committee which will
direct the campaign for the election of the party ticket and take
the necessary steps for calling the next convention. The con-
vention is the supreme party authority, and in discharging these
functions, its action is, in theory, the action of the party itself.
It is the party's legislature to which has been delegated the
supreme power of determining party policies and choosing the
highest party officers. Inasmuch as the candidate of the success-
ful party becomes President, and the policies of that party may
be embodied in the law of the land, these functions of the national
convention are of transcendent importance. Yet its work is by
no means always done with wisdom and scrupulous regard for
the Nation's best interests. It is usually, in fact, the scene of
astute, if not astounding, political manipulation. Nowhere
else has the " game of politics " been played more zealously and,
at times, more recklessly.
The national convention is composed of delegates representing
the States and Territories, and is governed by rules of its own
' Rclovv, p. 498.
192 COMPARATIVE FREE GOVERNMENT
making. The practices of the leading parties have differed
somewhat with respect to the manner of choosing delegates and
the representation of the Territories. By a long-standing rule
each State is entitled to twice as many delegates as it has
Senators and Representatives in Congress. Each Territory and
dependency and the District of Columbia are given representa-
tion as provided for in the rules under which the convention has
been called. Thus in the Democratic convention of igiaeach
of these had six delegates, while in the Republican convention
of that year there were six delegates from Hawaii and two each
from the District of Columbia, Alaska, Porto Rico, and the Phil-
ippines. The total number of Democratic delegates was 1094
and of Republican delegates 1078. In addition to the regular
delegates there is an equal number of alternates who do not partic-
ipate in the proceedings of the convention except in the absence
of regular delegates. It is seen that the convention is a large
body, entirely too large for a deliberative asseml)ly. It should
be stated, however, that though there is abundant need, the con-
ventions as such seldom deliberate. That function is usually
attended to by the convention's leaders and managers in secret
conferences held whenever and wherever occasion demands.
Selection of Delegates. — Reference was just made to the
fact that the Democratic and Republican practices differ some-
what in the manner of choosing delegates. The method to be
pursued by the Republicans is always stated in the official call
for the convention issued by the National Committee. With the
Democrats this is left to the States and Territories to decide for
themselves. The Republican practice is to hold a convention
in each State, for the purpose of choosing the four delcgates-at-
large, and their alternates, who correspond to the United States
Senators, and a district convention in each congressional dis-
trict to choose the two delegates and their alternates, who cor-
respond to the Representative of the district in the lower house of
Congress. Where direct primary laws have been made to apply
to convention delegates, the selection is made by the members of
the party at the polls, and conventions are not held. The con-
gressional district has long been recognized by the Republicans
as the unit of representation. The territorial delegates are
chosen at Cf)nventions. This same general practice is now ob-
served Jjy the democratic party, though not in all of the State: ,
THE NATIONAL CONVENTION 1 93
The Democrats are traditionally the champions of the States
as against any other political authority, and formerly assigned
to the State convention the task of selecting the entire delegation
to the national convention. This is still done in a number of the
States. A common practice with the Democrats is for the entire
State convention to choose the delegates-at-large, just as the
RepubUcan conventions do, and for the delegation to the State
convention from each congressional district to name the national
delegates to which the district is entitled. This selection by the
district delegations is then ratified by the State convention.
In this way the congressional- districts are recognized and at the
same time the character of State delegations is maintained.
This makes it possible for the State convention to instruct the
entire delegation to the national convention, — a practice com-
mon with the Democrats and entirely in harmony with Demo-
cratic traditions which look to the State as the important unit
in party action.^ These instructions may be made under the
unit rule, recognized by the Democrats, by which the entire
vote of a State delegation in the national convention is cast
according to the wishes of a majority of its members ; the indi-
vidual delegate cannot vote as he pleases, but must vote as the
majority of the delegation direct. The Repubhcan State con-
ventions have no authority to impose the unit rule and may give
instructions only to the delegates-at-large chosen by them. The
district delegates receive their whole authority from their respec-
tive district conventions and are subject to instructions only
from them. In either party, when no instructions are given, each
delegate is free to act as he pleases.
This, in a few words, is a statement of the convention method
of choosing the national delegates, — a method that has been in
use from the very beginning. It is based wholly on the represent-
ative principle and has been accepted by all parties. In times
past it has been the only method of choosing the delegates, but
that is not true to-day. To a marked degree the representative
principle as applied to party activities has been pushed aside in
recent years and that of direct action by party members has
been substituted for it. To a large extent the convention method
of nominating candidates for public office has been supplanted
by the direct primary, under which the nominations are made
1 Woodbum, " Political Parties and Party Problems in the United States," p. 158.
194 COMPARATIVE FREE GOVERNMENT
directly by the members of the party, without the aid of inter-
mediary bodies of any kind. Practically all the States have
adopted the direct primary in one form or another. In a number
of them it has been made to include the selection of delegates
to the national convention. The primary plan has proven very
popular and it may be assumed with some assurance, it would
seem, that, if the convention system of nominating presidential
candidates is retained, all delegates to the conventions, in time,
will be chosen directly by the party voters, and be instructed by
them as to their preferences with respect to presidential candi-
dates. In a number of States this is now done. The question
of whether the convention system of nomination will be retained
is problematical, however. In the last few years an insistent,
nation-wide demand has arisen for the nomination of candidates
for the presidency and the vice-presidency at direct primaries.
The enactment of a national law by Congress to provide for
this seems probable. It has already been recommended to
Congress by President Wilson. If a law of this kind is not
enacted, the result will be attained substantially through presi-
dential preference primaries estabhshed by State authority.
It is proper to note here that for some years fundamental
readjustments have been taking place in party life. Under the
powerful pressure of an aroused democracy, with clearer concep-
tions of its privileges and its obligations, old issues and methods
and forms are giving way, wholly or in part, to new ones. What
the ultimate outcome will be, no one can tell. It is certain, how-
ever, that the national convention, if retained at all, will be radi-
cally diiTerent from what it has been for three quarters of a
century.
Convention Organization and Procedure. — The manner in
which the national convcnlion assembles, organizes, and does
its work is full of interest and deserves some attention. All
arrangements for the convention are made by the National
Committee, which at the pr()i)er time sets the whole intricate
system of party machinery in motion in preparation for this great
quadrennial party assembly. Some six months before the
accustomed time for the convention, which usually is held in
the June or July preceding the presidential election, the National
Committee issues the oilicial call. Although there is always
more or less activity I)cfore this in connection with the approach-
THE NATIONAL CON\'ENTION 195
ing election, particularly among the candidates for the party
nomination, the call represents the real beginning of the party's
campaign. The Democratic call is much briefer than the
Republican, It states the time and place of holding the con-
vention, the number of delegates to which each State, Territory,
and dependency is entitled, and invites, in general terms, those
who are in sympathy with the party's principles to participate
in the selection of delegates. The Republican call not only
provides for these points, but also specifies the manner and time
in which the delegates are to be chosen and their credentials
sent to the secretary of the National Committee. It also states
what must be done in case there are contesting delegations from
any State or district. ^ A copy of the call is sent to each of the
State central committees which, in turn, prepare and issue the
summons for the necessary State and district conventions. The
process of choosing the delegates then begins.
When the convention assembles it is under the direction of the
National Committee, which, through its subcommittees, has
made detailed arrangements. A large hall is provided and pro-
fusely decorated, ofificers and their assistants are appointed, the
seating of the State delegations arranged for, and everything
done that can be done to make the convention pass off smoothly
and expeditiously.
At the time designated the convention is called to order by the
chairman of the National Committee. After a prayer, with
which the proceedings are always opened, the official call for the
convention is read. Then the chairman announces the name of
the man whom the committee has selected for temporary chair-
man of the convention and also the other temporary officers.
The committee's choice for chairman is usually approved by the
convention without division, although sometimes opposition
has arisen and occasionally the committee's nomination has been
rejected. After his election by the convention the temporary
chairman proceeds to deliver a carefully prepared speech, —
a " key note " speech, as it is called, — the purpose of which
is to arouse enthusiasm and to help keep the party harmonious
and in condition for the coming struggle. At the close of this
address, the convention, upon motion made and carried, pro-
' Ray, "An Introduction to Political Parties and Practical Politics," p. 146 ;
Jones, " Readings on Parlies and Elections," p. 86.
196 COMPARATIVE FREE GOVERNMENT
ceeds to appoint its committees. There are four of these, —
the committees on credentials, permanent organization, rules
and order of business, and resolutions. The appointment is
made in this manner. The roll of the States is called in alpha-
betical order, and in turn the chairmen of the delegations either
arise and announce the names of the members chosen by the
delegations to represent them upon the committees, or send the
names to the secretary who reads them to the convention. Each
State has one representative on each committee. With the nam-
ing of the committees the first session of the convention normally
comes to a close, and adjournment is taken to await the reports
of the committees which begin their labors at once.
The first report due in the regular order is that of the com-
mittee on credentials, whose duty it is to determine those who
have right to seats in the convention and make up the perma-
nent roll. The temporary roll has been made prior to the
meeting of the convention by the National Committee. Some-
times there are few and sometimes there are many contesting
delegations. The National Committee must pass upon the
claims of each and decide the question as to who shall take
part in the preliminary proceedings of the convention. This is
at times a very difficult task and in connection with it sometimes
serious abuses have arisen. Delegations claiming scats and dis-
satisfied with the decision of the National Committee may take
the matter before the credentials committee and seek recogni-
tion of their claims, for the work of the National Committee
cannot stand as conclusive. The convention itself must deter-
mine its own membership, and it does this largely through its
committee on credentials. It may be that there are no contests
at all. In that case the committee reports at once when the
convention assembles for its second session, and its report is
speedily adopted. It may be, on the other hand, that there are
.serious contests which are difficult of solution. In that case,
many hours, perhaps even several days, may be recjuired for the
committee to go over the evidence and formulaic its report.
The convention cannot go on with imi)ortant work, however,
until it has decided who have the right to i)articipate in its
I)rocecdings. When the commit lee finally reports, the conven-
tion must take action ui)on its findings. A unanimous re[)ort is
almost certain to be approved. If the committee is divided.
THE NATIONAL CONVENTION 1 97
usually the majority report is accepted, although sometimes the
minority report is substituted for it.
After the credentials of its members have been passed upon
and approved, the convention is ready to effect a permanent
organization. The committee reports the names of a permanent
chairman, the secretaries and vice presidents. Usually there is
no opposition to the committee's recommendations and its
report is promptly approved. The permanent chairman takes
his place, makes a brief address, and calls for the report of the
committee on rules and order of business. Ordinarily there is
no controversy over the rules, those of the preceding convention
being adopted without opposition. Now and then, however,
spectacular convention fights occur over this question, as was
the case in the Republican convention of 191 2. With the
adoption of the rules which are to govern the proceedings, the
convention is fully organized and ready for the work for which it
assembled. All that is done up to this point is merely prelimi-
nary in character, and yet it may be of the profoundest signifi-
cance because the real nature of the platform and the actual
choice of the presidential candidate may have been determined
in making up the convention's permanent roll.
The next order of business is the report of the committee on
resolutions, whose duty it is to frame the party platform. " The
platform is an address to the people, consisting sometimes of
various ' planks,' or a series of resolutions, sometimes of an
address without division into numbered sections, containing the
principles and program of the party. It arraigns the opposing
party for its errors, criticises it for its course, joins issue with it
on prominent policies before the public, and gives promise as
to what the party will do if it is elected to or retained in power.
In the platform the managers usually try to conciliate every
section of conflicting party opinion, and they frequently produce
a document which treats with ' prudent ambiguity ' the ques-
tions on which there is division within the party." ^ The
adoption of the platform may be the occasion of a bitter struggle
in the open convention between party factions which are fighting
for ascendancy, as was the case in the famous Democratic " free
silver " convention of 1896. On the other hand, it may be
adopted without division. Unfailingly, however, sharp con-
* Woodburn, '-'Political Parties and Party Problems in the United States," p. t8i.
198 COMPARATIVE FREE GOVERNMENT
troversies occur in the committee on resolutions over what shall
be included in the platform. Many of these are settled by com-
promise or in other ways, so as to enable the committee to bring
in a unanimous report, but sometimes the issue is so acute that
agreement is impossible, and majority and minority reports are
made to the convention where the controversy is finally settled.
Nomination of Candidates. — Following the adoption of the
platform, the next order of business is the selection of the party's
nominee for the presidency. This is the big event of the con-
vention, the thing to which the delegates have been looking
eagerly forward and upon which the attention of the whole
Nation is centered. It is always a moment of intense interest
when the convention takes up the task of nominating its candi-
date. It usually marks the culmination of a long period of
excitement and suspense, during which the claims of rival aspir-
ants for the nomination have been before the country, and the
delegates to the convention have been selected. It may be that
the contest is exceedingly close between two candidates and the
outcome will depend upon the votes of a few uninstructed dele-
gates. It may be, again, that there are several candidates,
evenly balanced in strength, and a long deadlock is in prospect.
The nomination may be made on the first ballot, or the second,
or the third ; and then again, it may not be made until the
twentieth, or the thirtieth, or the fortieth. It depends upon a
number of things, — the availability and strength of the candi-
dates, the skill of their managers, the fidelity of delegates to
their instructions, the temper of the convention, the state of the
public mind. The prize at stake is leadership of the party for
the time being and perhaps the attainment of the highest office
and greatest honor possible to an American citizen. The intense
interest of the convention and of the Nation as a whole is fully
warranted.
The formal nomination procedure is simple. The roll of the
States is called in ali)hai)etical order and each is given a chance
to name a candidate. One near the head of the roll which has
no candidate of its own, but favors the candidate of another
which comes farther down in the list, may yield to the latter,
in orrler that its favorite may be placed in nomination early
in the proceedings. A candidate from one State may be |)laced
in nomination by anollier State. This is frequently done for
THE NATIONAL CONVENTION 199
the sake of the influence it may have upon delegates who may
be wavering or in doubt as to what they should do. The
nominations are accompanied by speeches which have been
carefully prepared and which are characterized by fervid, white-
hot oratory, and sometimes by genuine eloquence. These are
the occasions for wild and stormy demonstrations for the rival
candidates. As the calling of the roll proceeds, speeches second-
ing the various nominations are made. These are shorter than
the main speeches, but vie with them in eulogistic oratory.
After the speech-making is concluded, balloting upon the
names presented begins at once. The roll of the States is called
again and the chairman of each delegation in turn announces
its vote. If no candidate has the necessary number of votes
at the conclusion of the first ballot, another ballot is ordered
and the roll is called again just as before. This continues until
some candidate receives the necessary majority. If a large
number of ballots is required, the convention may adjourn from
time to time to give opportunity for rest and for conferences
among the leaders. These intermissions are periods of manip-
ulation, intrigue, and feverish excitement. At last, perhaps
as the result of deals and combinations, some candidate receives
the required vote and is declared nominated. With respect
to the vote required the leading parties differ. The Republi-
cans nominate by a simple majority, while the Democrats re-
quire a two-thirds vote. This " two-thirds rule " and the
" unit rule," to which reference has been previously made, are
the two important points of difference between the practices
of the two parties.
The naming of the party's candidate for the vice presidency
is the convention's next work. The same procedure is observed
as for the nomination of the presidential candidate. The in-
terest in the vice presidential nomination is usually slight,
and the convention's proceeding is perfunctory. Occasionally,
however, it is the real center of interest, as was the case with
the Republican convention of 1900 which nominated Theodore
Roosevelt for the vice presidency and renominated William
McKinley for the presidency by acclamation.
There remains to the convention the appointment of the
National Committee, to be described in the next chapter, and
two special committees to notifv ofhciallv the candidates of
200 CO^MPARATTVE FREE GOVERNMENT
their nomination, a ceremony that takes place some weeks later
and at which the candidates make elaborate speeches of ac-
ceptance. The convention then adjourns sine die.
Controlling Forces and Environment. — It should be clearly
understood that what has been said in this brief sketch of the
national convention has to do almost entirely with its formal
structure and routine procedure. And this by no means is always
the most important. By itself it is insufficient ; for the national
convention, like the government itself, cannot be understood
from a mere study of its structure and outward appearance.
Back of these Ue the informal, unauthorized processes of practi-
cal politics; the play of all those hidden forces, — personal,
factional, economic, social, — which control the affairs of men
and nations and which converge and clash with one another
under cover of the convention's formal procedure. The out-
ward action may be, very likely is, the result of secret manipula-
tion and bargains. What takes place behind the scenes may
be, very probably is, much more significant than that which
takes place on the stage in front. It is therefore supremely
essential in trying to comprehend the full significance of the
national convention, that judgment of what was done be tem-
pered with knowledge of why it was done; that the work of
the open session be studied in relation to the unrevealed actions
of the secret caucuses and other midnight gatherings which seek
to control the convention's proceedings. Only in this way
can a perverted view of what the convention is be avoided.
Moreover, the work of the convention must be considered
in the light of its surroundings, of its environment. The huge
convention hall, seating ten or twelve thousand spectators,
crowded to the limits with the adherents of the aspiring candi-
dates; the terrific noise; the loudly playing bands; the tre-
mendous enthusiasm, genuine and otherwise; the fervid ora-
tory ; the processions ; the songs ; the banners ; the vociferous
and long demonstrations; the cheering; the stamping of feet;
the waving of flags; ilic (arcfully and slnrwdly i)lanne(l
appeals to partisan si)irit ; all these are parts of the national
convention and give it character. Their inlliunce ui)on its
actions cannot be ignored. All the elements in the jjicture
must be observed and understood if the right i)erspective is to
l)c obtained. It is not possible to elaborate them here, through
THE NATIONAL CONVENTION 20I
want of space ; only a warning can be given that they be not
overlooked.'
The Convention in Theory and Practice. — In theory the
convention is a most admirable institution. It is built wholly
on the principle of representation. It stands for the millions
of party members, owes its authority to them, and assembles
to carry out their will in the formulation of a platform and the
selection of candidates. It is the only body that can speak
authoritatively for the whole party. It is composed of dele-
gates chosen at State and district conventions, and these are
made up of delegates elected at county conventions, held in
each county of the State or district. The county conventions
are composed of delegates from the various townships, and
wards — or other election units — into which each county
is divided. And the township and ward delegates are chosen
at township and ward caucuses, which are primary assemblies,
composed in theory of the entire party membership within
them. So the authority of the national convention is clearly
derived from the party voters. The convention represents all
interests and all factions within the party. Its sole purpose is
to give expression to the party will. It is, in short, a theoreti-
cally perfect representative body. " It passes the highest
test of a political institution in a democratic community. It
admits of the purest application of the principle of representation
or delegated authority. Step by step the voice of each indi-
vidual voter can, in theory, be transmitted from delegate to
delegate, until finally it finds its perfect expression in the legis-
lature, the executive, or the judiciary." ^
That the convention system has been of very great value to
the parties and at times has rendered high service to the Nation
cannot be questioned. It has been a tremendously powerful
unifying force. In the party convention all phases of the party's
problems are considered. One of its chief functions is the
conciliation of antagonistic elements within the party and the
harmonizing of opposing forces. " The convention thus, in
theory, lies at the foundation of party success. It perfects
' For brief though excellent descriptions of the national convention, see Brjxe,
"The American Commonwealth," Chap. LXX, Vol. II, p. i86. New and Revised
Edition; Ostrogorski, "Democracy and the Party System," Chap. VIII, p. 133;
Jones, " Readings on Parties and Elections," pp. 80-106.
2 Meyer, "Nominating Systems," p. 4q.
202 COMPARATIVE FREE GOVERNMENT
party organization, measures its strength, conciliates its fac-
tions, detines its issues, selects its candidates, and arouses
enthusiasm."' These are all exceedingly important things;
they must be done and done effectively if party government
is to be successful. In so far as the convention has accom-
plished l-hem it has been an agency of the highest value.
The convention in practice, however, has not always proven
to be the admirable institution which the theory calls for. It
has been far from perfect ; its representation of the party voters
far from ideal. The system, of which the national convention
is the apex, is too complex. The convention is too far removed
from the voters. Their voice becomes too much weakened, their
authority and control too much diffused, before the national
convention is reached. The sense of personal responsibility
to the voters on the part of delegates becomes less and less keen
the farther they are removed from the original local primary.
The result frequently is gross misrepresentation of the true
party opinion.
Moreover, the convention system has lent itself to the uses
of the pohtical bosses and machines, and has shielded corrupt
practices. The nomination of candidates has too frequently
been merely the ratification of a " slate " arranged in advance
by the party leaders. This has been true particularly of State
and local conventions. The framing of the platform has too
often been under the skillful direction of the agents of special
interests which seek legislation in their own favor, at the ex-
pense of the general public, or oppose legislation which is de-
signed to prevent them from doing things that are detrimentai
to the public. The packing of caucuses, the bribery of dele-
gates, the objectionable use of proxies, the fake contests among
delegations, the manipulation of credentials, the log-rolling,
the disorderly proceedings, the unfair rulings from the chair,
— these are all familiar things in connection with the convention
system. It is not to be understood of course that all conven-
tions are characterized by these objectionalile practices; far
from it. It is the jjurpose here merely to suggest some of the
serious evils which have grown uj) and whith have made the
convention system so imperfect in operation. And because of
these things nomination by delegate conventions has become
' Meyer, " Nominating Systems," p. SJ.
THE NATIONAL CONVENTION 203
discredited. Under the malign influence of machine politics
the conventions have increasingly misrepresented the popular
will.
The result is the almost startling development of the direct
primary, by which nominations are made directly by the voters.
The convention as a nominating agency for local and State
officers is rapidly giving place to the primary. A State-wide
compulsory primary, applying to all State officers, including
United States Senators, is the prevailing system of nomination.
Everywhere there are the same secrecy, the same legal protec-
tion, and the same safeguards against corrupt practices as are
afforded for the regular elections. The general acceptance and
approval of direct nominations mark a big step forward in
the movement for democracy, — and, as previously suggested,
it was inevitable that sooner or later the suggestion be made
that the principle be applied to the selection of presidential and
vice presidential candidates. The presidency has become the
one truly representative national office and the chief weapon in
the hands of the people for accomphshing their will. It has
already been democratized to a large degree, as compared with
what the f ramers of the Constitution intended, but by no means
to the extent that the people desire. It is therefore natural
that the wide acceptance of the direct primary in nominating
State officers and members of Congress should cause a demand
for it for the nomination of Presidents. No one can say what
the result of this demand will be. It may be the complete
elimination of the national convention, the most interesting
and most spectacular feature of American party organization.
It should be borne in mind, however, that the system of
direct nominations has not proven in practice to be entirely
satisfactory. Its results, in fact, have fallen far short of what
many of its sponsors expected from it. It cannot be said, as
yet, that it has acquired a permanent status as an institution of
government. In some of the States, as in Wisconsin, which
was a pioneer in the adoption of the primary plan, a distinct
reaction has set in against it. Many progressive thinkers who
helped establish the system, and whose belief in fundamental
democracy cannot be questioned, have grave doubts as to its
permanent value and its efficacy in preventing boss domination
and the selection of unfit candidates for office. What the
204 COMPARATIVE FREE GOVERNMENT
future will bring forth with respect to nomination procedure,
the future must reveal. The primary may remain as it has been,
or a regenerated, reconstructed convention system may take
its place. The one fact which seems to be beyond question is
that the people are determined to control their government in
all of its phases ; if not by one process, then by another. The
government is to be democratic in more than name.
REFERENCES
Bryce. The American CommonwcaHh, Edition 1910, Vol. II, Chaps. LXIX,
LXX.
Ford. The Rise and Groivth of American Politics, Chap. XVI.
Meyer. Nominating Systems, Chaps. IV, V.
OsTROGORSKi. Democracy and the Party System in the United States, Chaps.
II, III, IV, V, VIII.
Ray. Ati Introduction to Political Parties and Practical Politics, Chap. VIII.
Reinsch. Readings on American Federal Government, Chap. XVI.
VVoodburn. Political Parties and Party Problems in the United States,
Chaps. X, XI, XII.
CHAPTER XVI
Party Machinery and Methods — National
There are two parts to the organization of the poHtical
parties. One is temporary, transitory, in character, and the
other is permanent. The conventions constitute the one and
the party committees the other. The conventions are called
into existence at stated times for specific purposes, — the nomina-
tion of candidates and the adoption of party {platforms. In
States where nominations are made at direct primaries, the State
conventions have only the platform function to discharge. But
even where the convention system remains intact, the con\en-
tion is in existence for only a very short time. In a single day,
perhaps, or two or three days, its work is completed, and the
convention ceases to be. For a few brief hours it embodies the
whole party and exercises the highest party power; then it is
gone, — a mere incident in history.
The committees, however, are enduring, permanent institu-
tions. As is the case with the House of Representatives, the
committees in existence at any particular time have definite
life periods, say, two or four years. Their members hold of&ce
for definite terms. At the end of the periods the old committees
pass from power and new ones take their places. The personnel
of the new committees may be different, wholly or in part,
from that of the old, yet as party institutions the committees
are continuous bodies. The old committees do npt disappear,
until the new ones take charge. The result in each party is
a great, complicated system of machinery that is constantly in
operation for the promotion of the party's interests. Upon the
efircient working of this machinery, made up of the various
committees, the party is largely dependent for its success. A
knowledge of the committees, and their work and methods, is
essential, therefore, to a proper understanding of the party sys-
tem.
20S
2o6 CO.MIWRATIVE FREE GOVERNMENT
The permanent committees constitute the administrative
branch of the party's organization. There are two main func-
tions that must be performed. One is to formulate and give
expression to the party will, and the other is to execute that
will, to carry it into effect. The first is legislative in nature and
is performed by the party conventions, which may be called
the party's legislatures. The second is administrative in nature
and is performed by the permanent committees, which, taken
together, may be called the party's executive. It is the supreme
business of the party committees, or executive, to win elections
for the party so that its agents may control the government
and its will be embodied in public policies. The object of all
party activities is the control of the government, and the
function of the committees is to make this possible. In theory
the convention and the primary represent the direct authority
of the party members. The committees, however, are not so
directly popular in their origin, but represent the convention
or the primary. They are the agents for executing the will
of these popular bodies.
Each convention or primary district has its own committee.
These districts in the main correspond to the various govern-
mental units. There are as many party committees, there-
fore, as there are important governmenlal areas for which public
officers must be elected. It is obvious that there is in the whole
Nation an enormous number of party officials. It may be said
with assurance that there are more persons holding official
positions in the two leading parly organizations than there
are in all the elective civil offices in the entire country above
those of the township and the ward. This means that there is
a veritable army of workers who are constantly active in an
official way in support of each party. They foster and promote
the party's interests not only during the heat and struggle of
election campaigns, but also during the c|uieter periods between
elections when [)arty enthusiasm runs low and party spirit
becomes sluggish. It is the mission of party committeemen
not only to lead in and direct the party's contests, but also, at
all limes, to nourish and encourage party sentiment ami build
up the party organization so ihal it will be always in good
fighting condition. Tlu' duties of coiiunilticnuii, |)arti( ularly
of members of the more important committees, are sometimes
PARTY MACHINERY AND METHODS — NATIONAL 207
arduous, but as a rule are performed with a fidelity which ex-
cites admiration ; and particularly so in view of the fact that
they serve without compensation. It is true that many of them
receive appointments to offices as rewards for party service,
and no doubt pull the wires to obtain these honors. But a
great many committeemen, as well as other party workers,
give to their parties faithful and effective service in unheralded
manner without thought of recognition or reward of any kind.
This is particularly the case in the rural districts. The real
strength of the parties, as a matter of fact, lies in the devotion
and activity of men of this type. Considering the selfishness
and crookedness which so frequently characterize party
struggles, it is astonishing to one unfamiliar with conditions to
discover in America so large an amount of genuinely disinterested
party activity as is to be found in all of the parties.
The National Committee. — The committee of highest
authority, standing at the head of the permanent party machin-
ery, is the National Committee, to which frequent reference
has been made in connection with the national convention. Its
place is one of the highest importance and responsibiUty, for
upon its work depends, in large degree, the party's chances of
controlling the presidency, and through it the whole executive
branch of the national government. Its field of operation is the
Nation itself. It is the one permanent party institution which
stands for the unity of the whole party. It represents all the
States and Territories and is concerned with the party fortunes
in all parts of the Nation.
The National Committee owes its authority to the national
convention by which it is chosen every four years when the
convention assembles to nominate the national ticket. Each
State and each Territory has one representative. Though the
formal election is by the national convention, the actual selec-
tion of its members is made by the various State and Territorial
delegations to the convention. Each delegation is free to make
its own choice, designating one of its own members or some
other active and influential party leader in the State or Terri-
tory it represents. Strictly speaking, this choice is a mere
nomination to the convention, which makes the official appoint-
ment of the committee. However, the convention always
accepts the recommendations which the delegations make.
2o8 COMPARATIVE FREE GOVERNMENT
The new committee thus chosen takes charge of the party's
affairs immediately upon the adjournment of the convention
and continues in power for four years until the next national
convention is organized. During the short time that the con-
vention is in existence it embodies the supreme party power
and takes back to itself the power delegated to the National
Committee by the last convention. Before it adjourns the
convention confers some of its powers upon the new National
Committee, which begins at once to plan for the presidential
campaign which the party has just started.
The first thing the committee must do is to effect its own or-
ganization by the election of its chairman, vice chairman,
secretary, .and treasurer, and the appointment of the necessary
subcommittees. The election of the chairman is a merely
formal procedure notwithstanding the fact that he is by long
odds the most important member of the committee. The real
selection of the chairman is made by the party's candidate for
the presidency. The relationship between the chairman and
the candidate is so close, and the latter has so much at stake
in the election, that the propriety of his naming the chairman is
everywhere conceded. He may select some one from within
the committee or some one from without. The committee then
takes formal action and the candidate's nominee becomes the
committee's chairman and as such the head of the entire national
party organization. His position is one of great power and
responsibility, and upon his understanding of practical politics,
his capacity for leadership, and his initiative and skill in
managing the cam[)aign, tlie fortunes of the party largely
depend.
Aside from the chairman, the most important official is
perhaps the secretary, who becomes the execuli\e ofiicer of
the committee. He has charge of the committee's headciuarters
and is called ui)on to do a vast amount of detailed work and
keep intimately in touch with every phase of the committee's
activities. He is not so miu Ii in ilic Hnie light as is the chair-
man, but upon him in high degree the chairman and the com-
mittee are dependent for the success of their ])lans. The
treasurer is also a very responsible and imi)<)rtant officer, for
to him chiefly falls the duty of raising tin- funds necessary for
tlie cam[)aign. Without adecjuute funds the committee is
PARTY MACHINERY AND METHODS — NATIONAL 209
seriously handicapped and a successful campaign can hardly
be waged. The nature of his duties gives to the treasurer a
pivotal place in the committee's organization. In his selec-
tion, also, the presidential candidate is likely to have some voice,
for the outcome of the election may be materially influenced
by the sources of the party funds and the manner in which they
are solicited and collected. Many grave political scandals
have arisen in connection with campaign contributions.
National Committee and National Convention. — The work
of the National Committee naturally divides into three rather
unrelated parts ; first, its duties in connection with the national
convention ; second, its management of the presidential elec-
tion campaign ; and, third, its activities during the quiescent
period between elections. With respect to the order of their
occurrence, the committee's convention work comes last ; in
fact, just at the end of the four-year term. The first work of a
new National Committee is to direct the campaign for the elec-
tion of its presidential candidate.
All arrangements for the national convention are made by
the committee. The first step is taken when the chairman
summons the committee for the purpose of preparing the official
call for the convention, and determining the time and place at
which it shall be held. This meeting is usually held in Decem-
ber or January, some six months prior to the time of the national
convention. The content of the official call has been given in
the last chapter.^ Nothing more need be said about it here,
except to call attention to the fact that the Republican prac-
tice of specifying the manner in which delegates to the conven-
tion should be chosen has at times given rise to serious trouble.
The committee establishes the official party rule covering the
selection of delegates unless the convention itself chooses to say
what the rule shall be. Any deviation, then, from the pro-
cedure determined upon by the committee will cause contests
and disputes within the party which may lead to party dis-
ruption. This, in fact, was one of the difficulties confronting
the Republican convention in 191 2 and which led to the spHt
that resulted in the organization of the Progressive party.
Some of the delegates had been elected under State primary
laws that were at variance with the official call. The National
• Above, p. 105. ■'
P
2IO COMPARATRE FREE G0\'ERN:MEXT
Committee, in passing upon the claims of contesting delegations
caused by this conflict, chose to stand by its own rule, even
in the face of party disaster. This action met with such con-
demnation, however, that the committee has been forced to
propose radical changes in the rules by which the rights of dele-
gates chosen at primaries are fully protected. The Demo-
cratic practice has been to leave the selection of delegates
wholly to the States, and so in Democratic conventions this
difficulty has not arisen.
The selection of the place at which the convention is to be
held is by no means an unimportant detail. It is sometimes the
cause of sharp controversy in the committee. Always there is
keen rivalry among a number of cities which seek to entertain
the convention and are willing to pledge large sums of money
for the privilege. The successful city must have, of course, a
large convention hall and adequate hotel and railway accommo-
dations. The decision which the committee finally makes may
have a direct effect upon the convention's choice of a presi-
dential candidate and, therefore, will likely be in accord with
the preference of the majority of the committee among the as-
pirants for the nomination. The convention is affected more
or less by its surroundings. A striking example of the influence
which the place of meeting may have upon the convention's
work is found in the Republican convention held in Chicago in
i860. Abraham Lincoln's chances for the nomination were
greatly improved by the fact that the convention was held in
his own State. It is generally believed that William H. Seward
would have been nominated over Lincoln if the convention had
been held in New York or some other eastern city.
Prior to the time set for the convention to assemble, the
committee makes all the needed arrangements for its accommo-
dation. Committee headquarters are opened ; the convention
hall is obtained, decorated, and made ready in all respects;
tickets of admission are printed and circulated ; the official
delegate badges are prepared ; accommodations for the news-
paper rei)resentatives are provided for; llie lemi)orary chair-
man and the other convention officers are selected ; arrange-
ments are made with the local police for the maintenance of
order ; contests between rival delegations claiming seats in the
convention are decided, and the temporary roll of the conven-
PARTY MACHINERY AND METHODS — NATIONAL 21 1
tion is made up. Nothing is overlooked that seems necessary
or desirable for the convenience of the convention and the satis-
factory performance of its duties. The last week before the
convention is likely to be a laborious time for the National
Committee.
Among the duties suggested, the naming of the temporary
chairman and the hearing of contests among delegates are the
most important. The temporary chairman delivers the " key
note " speech, and through this, as well as through his power
as presiding officer, may have marked influence upon the out-
come of the convention's deliberations, particularly upon the
platform adopted. By deciding contests among delegates the
National Committee determines who have the right to partici-
pate in the preliminary proceedings of the convention. This
may not only influence, but may practically determine the re-
sult of a close fight for the presidential nomination. Where
serious factional troubles exist this function of the committee
acquires additional significance. A marked preference for one
faction or the other may tend to wreck the party by intensify-
ing personal and group antagonisms. The possibility of thus
promoting unfortunate dissensions within the party is increased
by reason of the fact that the committee has been in power for
four years and is about to give way to a new one. During this
time party sentiment may have changed radically from what
it was when the committee was appointed and, as a result,
the majority of the committee may at the time of the conven-
tion stand for policies and practices which the party condemns.
The committee is supposed to be merely the agent of the party
and to do its will, but under such conditions it may seek to
become the master of the party and to defeat its will. The
seriousness of a situation of this kind needs no comment. Since
the Republican convention of 1912, where this antagonism was
sharply revealed, the demand has developed for the election of
the new committee in time for it to arrange for the convention
and to pass upon the merits of the claims put forward by con-
testing delegations. Under such a plan the committee would
be representative, presumably, of the actual party sentiment
and would be in harmony with the majority in the convention.
Some such reform as this is very likely to occur, unless, indeed,
the convention system itself is subjected to still more radical
212 COMPARATIVE FREE GOVERNMENT
changes. It is only very recently that the popular mind has
come to comprehend the great power, — a power amounting
almost to dictation, at times, — which the National Committee
has taken to itself in the last thirty years or so. Limitation
of this power, at least with respect to the committee's control
over the national convention, is inevitable. The nation-wide
movement for the democratization of government in all its
phases will not pass the National Committee untouched.
The Committee and the Election Campaign. — The most
important work of the National Committee from the standpoint
of the party is the management of the presidential election
campaign. It is in this that the skill and astuteness of the chair-
man, and the zeal and capacity of his committee associates, are
tested to the utmost. Their one supreme duty is to win the
election and by so doing place or retain their party in power.
They are the head of the great army of party workers in all the
States, organized into multitudes of State and local committees,
and it is their business to see that the whole organization is
working smoothly and effectively. To do this they must keep
in intimate touch with the political developments and party
activities in all parts of the country. Where the organization
is weak, it must be strengthened ; where party spirit is la.x,
enthusiasm must be aroused ; where party funds are inad-
equate, money must be supplied ; where factional differ-
ences are rife, harmony must be restored. The period of
the campaign is filled with intensive, systematic, strenuous
labor which goes on without Icl-u]) until tlic hour of the
election has arrived.
All the States receive attention from the comniittee, although
not in equal degree. The Slates that are " solid " or " safe "
for the party are left largely to their State and local committees.
The struggles in the Slates that are " douhtful " or " pivotal,"
however, are under the constant super\ ision of the National
Committee. There the most elTective i);irty workers and
speakers are sent, the money poured in, and everything done
that can be devised by experienced |)arty leaders to lieij) carry
the day; for upon the outcome of a single one of these States
the winning of the presidency may depend. With such a prize
at stake, no chances can be taken ; every possible move musl
be made that gives i)romise of increasing the party's vole.
PARTY MACHINERY AND METHODS — NATIONAL 213
Above all, the party's organization in these States must be per-
fected. " Every experienced political manager knows that the
first essential to the successful conduct of a campaign is organi-
zation. The next important essential, it has been said, is or-
ganization; a third is organization. The organization must be
thorough and complete. The National Committee, the State
committees, the county committees, the township committees,
and the appointed party agents and workers in the city pre-
cincts and wards, must all be in close articulation and coopera-
tion with one another." ^
To enable the committee to do its work more successfully,
a number of subcommittees are appointed, each with its own
special duties. These usually consist of an executive committee,
a finance committee, a committee in charge of the bureau of
speakers, a committee in charge of literary and press matters,
and a committee in charge of the distribution of pubHc docu-
ments.- All of these subcommittees are essential parts of the
National Committee's organization. The most important,
however, are the executive and finance committees. The for-
mer, with the chairman of the National Committee at its head,
has general charge of the campaign, and is sometimes called
the " campaign committee." Its members are carefully
chosen from the shrewdest political managers available. It is
in immediate contact with the campaign activities in all the
States. The finance committee, as its name implies, is charged
with the task of raising funds for the prosecution of the cam-
paign,— of supplying the party with the "sinews of war."
The treasurer of the National Committee is its chairman and
together with the national chairman, bears the brunt of the
work of obtaining campaign contributions. The difficulties
involved in this task are sometimes very great. Until a few
years ago, large contributions from corporations and wealthy
men, who for business reasons were interested in the party's
success, were looked upon with general complacence, if not
approval. The special interests were willing to pay, in the
form of campaign contributions, either for the enactment of
legislation that was favorable to them or for the defeat of
legislation that was objectionable ; and the party managers
• Woodburn, " Political Parties and Party Problems in the United States,"
p. 202. -Ibid., p. 20Z.
214 COMPARATIVE FREE GOVERNMENT
were willing to have them pay. The general public was ig-
norant of what transpired, since no publicity was given to party
finances, and the public conscience was not aroused. Under
those conditions money was easily obtained for campaign pur-
poses. But the situation now is very different. Campaign
contributions are now strictly regulated by State and national
statutes, and publicity is given to the source and expenditure
of party funds. Corporation contributions are forbidden.
This has been a most wholesome reform, but it has increased
considerably the difficulties in the way of the National Com-
mittee's treasurer and finance committee. These difficulties
must be overcome, however, for without plentiful funds the
campaign cannot be carried on successfully. Each party spends
an enormous sum of money in conducting the presidential con-
test in ways that are both legally and morally proper, such as,
the maintenance of committee headquarters, printing, postage,
transportation, renting of halls, sending out speakers, and dis-
tributing campaign literature. With the most economical
management the expense will approximate a million dollars
for each of the leading parties ; and in some campaigns it has
been several times this amount. It is obvious that the financial
side of the National Committee's work must always be an object
of great concern.
The remaining subcommittees have to do with the work of
placing the party's claims before the voters, developing party
sentiment and arousing enthusiasm for the ticket. The com-
mittee in charge of the speakers' bureau is responsible for pro-
viding and sending out speakers wherever they are needed. It
may have on its list several hundred of the best available
speakers, some of whom receive compensaliDU for their efforts.
It is the business of the committee to send these men where
they will accomi)lish the most good. This means that the
committee must understand thoroughly the local conditions in
the various States. The speaker must fit the conditions. An
extreme radical is not the man for a community of extreme
conservatism. All phases of party opinion must be given
respectful consideration, racial and religious prejudices heeded,
and antagonisms avoided wherever possible. To manage the
speakers' bureau successfully requires thorough understand-
ing of all the (TOSS currents, the conflicting forces, of |)arty
PARTY MACHINERY AND METHODS — NATIONAL 21 5
life, and of the " inside " things of practical politics. Not all
the speakers, of course, are under the control of this bureau.
There are thousands of them at work under the direction of
State and local committees.
The committee in charge of literary and press matters and
the committee in charge of the distribution of documents look
after the publicity side of the campaign. Instruction must
be given the voters and their reason and intelligence appealed
to through printed matter. This takes the form of newspaper
and magazine articles and advertisements, and campaign docu-
ments of various kinds. A great many special articles designed
for newspaper use are prepared under the direct supervision
of the literary bureau, and, without charge, sent to the news-
papers for publication. The country weeklies, particularly, are
solicited to publish these. A press agent, skilled in journalistic
work, is regularly employed by the bureau. Campaign docu-
ments are multitudinous in number and vary greatly in form.
Cards, posters, pamphlets, speeches, and books are prepared
and distributed, some free and others at low charges. The
campaign textbook should receive special mention. This is
a volume of three hundred pages or so, carefully prepared, and
containing information of all kinds for the use of campaign
speakers and party workers. Campaign biographies of the
presidential and vice presidential candidates are also prepared
and sold at popular prices. Pamphlets and posters of various
kinds and speeches of the candidates and leading members of
Congress are distributed in enormous numbers. Great use is
made of partisan speeches delivered in Congress because many
of these may be sent out under the congressional franking
privilege, without expense for postage. Much of this litera-
ture, however, is not mailed directly to the voters, by the liter-
ary bureau, but is shipped in bulk to State and local committees
and by them distributed where the need is greatest. With
respect to the output of campaign documents in a presidential
year, the following is suggestive : " In the campaign of 1900,
for example, the Democrats published 158 different documents
and distributed over twenty-five million copies, and the Republi-
can party probably surpassed this record. In that year eight
million copies of one of Mr. Bryan's speeches were printed in
eleven different languages, and seven million copies of Mr.
2l6 COMPARATIVE FREE GOVERNMENT
McKinley's letter of acceptance were distributed. In one day
four and a half million copies of a single speech were sent out
from the Republican headquarters in Chicago, and over three
tons of other documents were shipped on the same day." ^
This brief statement of the campaign duties of the National
Committee gives only in a general way a glimpse of the work
which must be done by the parties in connection with the pres-
idential election. It is not designed to be exhaustive, but
merely to suggest the usual plan of campaign. To describe
this in detail would require a volume. All that is desired is to
bring out clearly the huge proportions of the task with which
the National Committee is charged, and to outline the manner
in which it organizes for this and the methods it pursues.
Committee Activities between Elections. — The third part
of the National Committee's work, — that which it does during
the three years intervening before the next campaign opens, —
is very different in character from that which it does with ref-
erence to the presidential election. The circumstances sur-
rounding the committee during the two periods are radically
dissimilar. While the election campaign is on, the National
Committee is decidedly in the foreground. Its plans and
actions are chronicled in the daily press. The eye of the public
is upon it. But when the election is over, it almost immediately
drops into the background, if not out of sight. Its name ap-
pears only infrequently in the newspapers, and the general public
ceases to give attention to it. This is only a little less true of
the committee that was successful in the election than of the one
that was defeated. Does this mean, however, that the National
Committee has become unimportant and negligible as a party
institution until the time comes round for the next national
convention? To some extent, there is ground for this belief.
The committee, as a committee, has no formal duties to dis-
charge during this time. It holds no meetings and seldom main-
tains even the semblance of headquarters. Yet the committee
is hardly in the comatose condition which the casual observer
might ascribe to it. Information concerning its functions dur-
ing this period of lapse is not easily obtained, but there is good
evidence that its members continue to serve the party in an
effective, though quiet manner. It was made a part of the
• Kay, " InlruiJutlion to Political I'artics and Practical I'ulitics," p. 200.
PARTY MACHINERY AND METHODS — NATIONAL 217
duty of the first Democratic National Committee, established
in 1848, to " promote the Democratic Cause." This work of
" promoting the party cause " is the real work of every National
Committee and the opportunities for doing it are obviously not
confined to the period of the presidential campaign. The
party machinery must not be neglected and allowed to deterio-
rate or the party will suffer seriously in the next election.
Factional differences within the party must be held in check
and obliterated, if possible, and dissensions healed. The
National Committee, through tactful efforts, is in a position
to serve the party in a most practical and highly beneficial
way by harmonizing discordant and antagonistic elements
within it.
Moreover, the success of a party depends in no small degree
upon a clear understanding, on the part of its leaders, of the
significance of political developments from day to day. It is
no less essential for the party in opposition than for the party in
power to gauge accurately the state of the public mind. The
effect of policies proposed, as well as policies enacted, must be
measured so as to guard against a loss of popular confidence. It
is necessary, therefore, for both those who are in control of the
government and those who are leading the opposition, to be
intimately familiar with what is going on among the masses of
the people. In this work of analyzing public opinion and
studying the trend of political sentiment with a view to pre-
venting party blunders, members of the National Committee
have one of their largest opportunities for " promoting the
party cause."
In one other way, also, members of the committee represent-
ing the party in power are of assistance both to the party and to
the administration. This is in connection with the distribu-
tion of patronage. The chairman of the committee, who is a
close personal adviser of the President, is particularly influential
in this respect. His indorsement of a candidate for an appoint-
ment to office is certain to carry great weight with the Presi-
dent. This, indeed, is one of the sources of the chairman's
power over his associates in the party organization, many of
whom look upon him as the dispenser of party patronage.
This has, in fact, been literally true with some chairmen. Two
notable examples arc found in Senator A. P. Gorman, who led
2l8 COMPARATIVE FREE GOVERNMENT
the Democrats to victory in 1884, and Senator Marcus Hanna,
who managed the Republican campaigns of 1896 and 1900.^
Both of these men wielded tremendous influence over appoint-
ments to office and greatly increased the prestige of the national
chairman. Particularly was this true of Senator Hanna who
was given substantially a free hand in apportioning party patron-
age in the Southern States. His indorsement, in fact, at any
time practically insured an appointment. Chairman Hanna
is not to be taken as typical, however, for in him the national
chairman reached the high tide of influence. At all times, it
is to be remembered, the Senators and Representatives have a
great deal to say about federal appointments.
In States in which the President's party has no representa-
tives in either house of Congress, the members of the National
Committee from those States become influential factors in
the distribution of patronage. This is also true where the
party controls only a part of the congressional delegation.
The committeeman becomes a referee for settling disputes
as to preference, and the President looks to him for guidance.
It is his business in all this to look after the interests of the
organization and to see that appointments are not made which
will tend toward party disruption. One of his prime functions
always is to prevent party divisions and factional strife. And
no other thing is so fruitful of these as is the dispensing of the
spoils of office.
REFERENCES
Bryce. The American Commouurallli, Kdition 1910, Vol. II, Chaps. LXXI,
LXXII, LXXIII.
Macy. Farly Orgatiizalion and Machinery, Chap. VI.
OSTROGORSKI. Dcmocrucv and llie J'arlv Syslcni in the United Slates, Chaps.
IX, X.
Ray. An Introduction to Political Parties and Practical Politics, Chaps. IX,
pp. 172-179, X, XI.
WooDBURN. Political Parties and Party Problems in the United Stales,
Cliup. XIII.
' Jones, " HcadiriKS on Parties and Elections," pp. 100-205.
CHAPTER XVII
Party Machinery and Methods — State and Local
It has been made clear in the preceding chapter that the
organization of each party consists, in addition to the National
Committee, of a large number of State and local committees.
Each of these has its own set of ofl&cers, its own field of action,
and its own work to do. Each is an important part of the
party machine. In fact, it is to the fidelity, enthusiasm, and
efiiciency of these local and State committees that the National
Committee must look for the success of its plans. Without all
this subordinate organization the National Committee would
be helpless.
Each State has its own organization which is entirely separate
from those of. other States. It must be remembered that the
presidential election, though first in importance, is only one
of many elections which the parties seek to carry. There is a
vast number of elective local and State offices which each party
is eager to control. The successful party has a tremendous
advantage over its opponent. It is through this control, to a
large extent, that the organization is kept intact. The elective
offices carry with them a large number of appointive positions,
and these, except where civil service laws prevent, are given to
party men. It is easily seen, therefore, that it is necessary for
the party in each State to maintain an efficient organization to
look after its interests in all these elections. Even in the year
of the great presidential election, the national ticket is not the
only one that is of concern to national as well as State party
managers. There must also be chosen Senators and Repre-
sentatives in Congress, Governors, and other State officers,
members of the State legislatures, officers for counties, cities,
towns and townships, wards and villages. The lists of offices
to be filled in the various States are not identical, of course,
but in each tliere is a large number of local contests to be de-
219
2 20 COMPARATRK TREE GOVERNMENT
cidcd at the same time the presidential battle is determined.
Sometimes it hai)i)ens that local contests are the cause of even
keener excitement and enthusiasm than is the presidential
election. In fact, the party managers depend in no small
degree upon these local fights to arouse party spirit and help
bring the voters to the polls. It is for this reason that the
managers are so desirous of having full party tickets nominated
in all the governmental divisions where elections are to occur.
The State and national tickets are certain to profit from the
activity caused by the local contests. Party committees in
the various districts to look after these local elections are es-
sential, therefore, to the party's success in States and Nation.
The State Central Committee. — At the head of the State
organization stands the State committee, usually called the
State Central Committee. This committee bears the same
relation to the State organization that the National Committee
does to the national organization. It is chosen, as a rule, in
much the same manner as the National Committee, is organized
in a similar way, and, within its more limited district, has the
same work to do. In the election of the President, the State
committee, though organically independent of the National
Committee, comes under the direction of the latter and be-
comes an elective part of the national organization. With
respect to the State elections, however, it is an independent
agency, and works out its own plans and is resiwnsible for the
outcome. Inevitably, though, the fortunes of the State and
national tickets are bound together. So the State and National
Committees work in harmony, as a usual thing, to their mutual
benefit.
There is a good deal of variation in the composition and powers
of the State committees in the difTerent States. In apportion-
ing membershi|) on the committee, difTerent j^ractices are ob-
served. Various units of rei)resentation are used, the congres-
sional district, the county, the legislative district, the judicial
flistrict, anfl the town. In some cases a mi.xed basis is used.'
[n most cases the committees are made up of representatives
from either the congressional districts or the counties. As a
rule the ai)portioiimcnt of members is based on geographical
considerations and not on the iminbcr of party adherents within
« Mcrriarii, ('. i:,, I'olitual Siinur Qiinrlrrly, XIX, p. 224.
PARTY MACHINERY AND METHODS — STATE 221
a district. In size, also, there is great lack of uniformity. At
least five State committees have a hundred or more members,
while two have only eleven. They serve for limited terms,
in most cases two years. The variation ranges, however, from
one to four years. The terms coincide, as a rule, with those of
the State officers. In general the members of the State com-
mittee are chosen according to the plan followed in the elec-
tion of the National Committee. In the case of the latter the
delegates to the national convention from the various States
choose their respective committeemen ; in the case of the
former, the delegates to the State convention from the various
districts or areas to be represented choose their respective com-
mitteemen. At a separate caucus of the delegates from each
district the selection is made and reported to the State con-
vention at the proper time. A different practice must be
observed, of course, if through direct primary legislation the
State convention is abolished. In Wisconsin, where this has
been done, party committeemen are chosen at a meeting of
the party nominees for the various State offices and for seats
in the State legislature. The prevailing practice in the States
with direct primaries, however, is to retain the State convention,
though with greatly limited powers, and at this the party com-
mittee is chosen in the manner outlined. In some States where
the county is the unit of representation, the central committee
is chosen by the local county authorities. Vacancies in the
State committee are usually filled by the remaining members,
although there are several States where this is not true.
The powers and duties of the State committee are similar
to those of the National Committee, though in a much more
limited field. They have to do with the holding of the State
convention, with the management of the election campaign,
and the building up and nurturing of the party's strength in
ail parts of the State. In the matter of the convention, the
committee decides upon the time and place, issues the formal
call, fixes the ratio of representation among the districts from
which delegates are to be chosen, selects the convention's
temporary officers, passes upon contests among rival delega-
tions in making up the temporary roll, and makes all necessary
arrangements for the convention's needs and convenience. As
with the national organization, this is all done by the committee
222 COMPAR.'\TIVE FREE GOVERNMENT
which is about to retire from power. During the time the
convention is in session the committee's powers are suspended.
This convention's organization and procedure is practically-
identical with that of the national convention already described.
The new State committee, upon its election, organizes at
once by choosing its officers. There are always a chairman,
a secretary, and a treasurer; sometimes other officers are
appointed, such as vice chairman and scrgeant-at-arms. The
chairman is general director of the committee and its work,
and, as with the national chairman, a great deal depends upon
his skill, executive abihty, and understanding of poUtical con-
ditions and forces. The work of planning for the election
campaign that is just opening begins at once. To enable the
committee to conduct the campaign more effectually, various
subcommittees are appointed. These usually include an execu-
tive or campaign committee of which the State chairman is
the head, a finance committee whose duty it is to raise money
for the campaign, a committee in charge of the speakers' bureau,
and a committee in charge of the literary or publicity bureau.
Sometimes the latter two are combined. Frequently an audit-
ing committee is appointed to check up all financial transac-
tions. The most important officers, of course, are the chairman
and the secretary. The campaign duties of the committee are
similar to those of the National Committee. It raises funds
for its own use and the use of local committees where most
needed, prepares and sends out campaign literature of all kinds,
including that received from the National Committee, arranges
for political meetings and assigns the speakers, holds confer-
ences with candidates and party workers, and does whatever
it thinks will contribute to a party victory. At all times it
must keep in close touch with the local committees and parly
workers. Without the aid of these its plans could not be
carried out. After all, it is only a kind of general staff directing
the State party army. Without the subordinate officers and
organizations it is hcl[)less.
The County Central Committee. — Below the State committee,
and giving the latter its chief support, stands the County Central
Committee — one of the most useful parts of the whole jiarty
organization. In size and manner of election the county com-
mittees vary greatly in dillerent Stales. A typical county
PARTY MACHINERY AND METHODS — STATE 223
committee in a rural county is one made up of one representa-
tive from each townsliip into which the county is divided.
Where the county contains a city of the lower rank, yet large
enough to be divided into wards, a representative from each
ward is also upon the committee. In the large cities where
the wards are divided into precincts, each precinct has its
committeeman. In some States members of the county com-
mittee are chosen at a county convention composed of delegates
from the townships and other election precincts of the county.
In others the committeemen are chosen at the township, ward,
or precinct caucuses. And in still others, where the direct
primary has been adopted, members of the county committee
are elected at the polls by the party members, at the time party
candidates are nominated for the various public offices. So
there is great variety in the manner of its election.
The powers of the county committees are also lacking in
uniformity. In some States their powers have never been
defined by party authority and are therefore vague and in-
definite. In other States, specific rules have been adopted in
which the powers of the committee are clearly stated and their
exact relationship to the State organization established. In
some instances the county committee becomes the " ring " in
control of the local party and practically dictates what it shall
do. With respect to the duties of county committees there
is rather widespread agreement. Their general purpose —
to quote from the rules governing the Democratic county com-
mittee in the County of New York — is to " have the care of
the interests and be charged with the administration of the
affairs of the party in the County, and with the promotion of
measures for the harmony, efficiency and success of the party."
The county committee is supposed never to become inactive ;
it is always to be on the alert for chances to strengthen its
party for the struggles that are always coming. Of course,
in the heat of a campaign, its work is more urgent and more
laborious than during the periods intervening between elec-
tions. It is then that the efficiency and zeal of its members
are put to the test. It is through them that the individual
voter comes in contact with the party organization. Each
member is usually expected to poll his precinct — that is,
ascertain the sentiment of each voter — at least once during
224 COMPARATIVE FREE GOVERNMENT
the campaign. Sometimes in doubtful States and districts
this is done several times in the course of the campaign to
enable the party leaders to plan and work to the best purpose.
The county committee carries out the instructions of the State
committee, and attends to many details intrusted to it. It
is expected to raise money for use in its own county, to em-
ploy speakers and arrange for political meetings or " rallies,"
to distribute the campaign literature sent to it by the State
committee, to stir party workers who are not on committees to
activity, to confer with candidates and help them come in
contact with local leaders and the voters, to see that all the
party members are properly registered, where registration is
required, to appoint watchers at the polls where this is neces-
sary, and do many other things to promote the party's success.
Above all, it is the business of the committee to see that the
full party vote is polled on election day. Each committeeman
is responsible for his own precinct and to " get out the vote "
is one of his chief aims as well as, oftentimes, one of his most
difTicult tasks. The work of the county committee, in all of
its phases, is vital to the success of the party, and must be clearly
understood in order to comprehend fully the part which organiza-
tion plays in party politics.
There arc still other committees in this complex system which
have not been mentioned as yet. There is likely to be a com-
mittee or committeeman, in fact, in each election district, no
matter how small it may be. The committees in mind here,
though, are the congressional, judicial, and senatorial district
cc^mmittees which are found in most States. Though ser\'ing
larger districts than the county, these committees are ordinarily
of less importance, however, than the county committees. They
are often more nominal than real. The effective campaign work
is done by the county committees. In fact, these other com-
mittees are frecjuently made up of county committeemen, —
one member from each county committee in the district. The
committees which carry the burden of a i)residential campaign
are the National, State, and county committees. In a strictly
Stale campaign it is the State and the county committees alone
which wage the fight.
Congressional Campaign Committee. — There remains to be
described one other party committee which is of unusual in-
PARTY MACHINERY AND METHODS — STATE 225
terest. This is the Congressional Campaign Committee. Since
its work is national in scope, having to do with the election of
members of Congress, it might properly have been described
in connection with the National Committee, whose ally it is.
But there is a difference between the Congressional Committee
and the National Committee as well as the others which have
been mentioned, which warranted passing it over for the mo-
ment. The National, State, and county committees are of-
ficial party institutions, created by proper party authority
and maintained according to established party usages. They
are officially recognized as the party's agents. The Congres-
sional Campaign Committee, on the other hand, is not an
official party committee. The party never estabhshed it and
does not maintain it, although, for the most part, it meets
with cordial party approval. It is simply an organization
set up and maintained by party members who have seats
in Congress; and, it might be added, who want to retain
those seats. The nature of its work and the place it holds
in the party organization are better understood by noting
the manner in which it came into being and how it is per-
petuated.
The Congressional Committee is not an old institution, as
political institutions go, although it has been in existence for
a number of years, and both parties have adopted it. The
first one came into existence in 1866 and was the direct prod-
uct of the sharp controversy that was on at that time between
the Republicans in Congress and President Johnson. The
National Committee was under the domination of the Presi-
dent, as it usually, though not always, is. The Republican
congressmen were unwilling to trust their political fortunes,
when they came up for reelection, to the National Committee.
As a resultant of this state of mind they formed a committee
of their own, made up from their own number, to take charge
of the congressional campaign of 1866. The results were en-
tirely satisfactory. The Republicans retained control of the
House of Representatives, in spite of the President's efforts
to oust them through the use of patronage.
It was seen at once that the Republicans had brought into
service a highly useful party agency. It became a regular
part of the Republican organization and was soon after adopted
Q
2 26 COMPARATIVE FREE GOVERNMENT
by the Democrats. Since that time both parties have kept
their Congressional Committees organized and have looked to
them for direction in the congressional contests. There can
be no doubt that the parties have been wise in maintaining
these committees, although they are not free from valid criti-
cisms. There is need for an agency of this kind, particularly in
the so-called " off-year " elections, when the regular National
Committee, as has been pointed out, is in a state of compara-
tive inaction. The National Committee, as a campaign com-
mittee, is concerned with presidential elections. Yet the
election of a new House of Representatives midway in the presi-
dential term is a matter of vital concern to both parties, and
particularly to the party in power. The need for a vigorous,
well-planned, well-conducted campaign is apparent. The
Congressional Committee supplies this need, and is without
doubt a valuable adjunct to the regular party organization.
Only a little less important, however, is its work in the presi-
dential years. The congressional elections must be looked
after as in the off years, the only difference being that in the
presidential years the Congressional Committee acts as the
ally of the National Committee and in general does its work
under the latter's supervision.
The methods of the Congressional Committee are similar to
those employed by the National Committee in the presidential
campaigns. It ])repares a campaign textbook for the use of
its speakers; sends out immense quantities of printed matter
— a good deal of this at government expense, under the frank-
ing privilege enjoyed by congressmen ; raises money necessary
for the maintenance of committee headquarters, the payment
of bills for printing and transportation, the hiring of speakers,
and the discharge of all the many other financial obligations
incurred during a campaign ; and like all campaign committees
I)erforms a multitude of exacting duties. It concentrates its
work in the douluful districts, just as the National Committee
centers its attention upon the doubtful States. It works in
conjunction with the various local committees in the different
States and seeks in every way possible to strengthen the local
organizations and hold the party's forces in line for its candi-
dates. To do this work successfully, the committee must
necessarily closely study local conditions and keep in touch
PARTY MACHINERY AND METHODS — STATE 227
with local party leaders. The opportunity of the committee
thus to influence party conduct is very great.
The Republican and Democratic committees differ somewhat
in their organization. Each committee is reorganized every
two years, at the beginning of a new Congress. The Republican
committee is chosen at a joint caucus of the members of both
houses. Each State and Territory that is represented in Con-
gress by Republicans has one representative on the committee.
States that have no representatives in Congress are deprived
of committee representation. If a State has only one Repub-
lican congressman, he serves upon the Congressional Committee.
Senators may be members, although there is no requirement
that they shall be. The practice, however, is to have the
Senate represented.
Upon the Democratic committee each State and Territory
is represented whether it has representation in Congress or
not. If a State has no Democratic Representative, some
well-known party worker in that State is selected to serve
on the committee. The Democratic committee is not chosen
at a joint caucus, as is the Republican committee, but the
Democratic members of each house hold their own caucus
and appoint their representatives. The Senate always has
nine members on the committee.
The efficiency of the Congressional Committee as a strict
campaign agency is beyond dispute ; it challenges admiration,
in fact. Yet it is not looked upon with absolute approval.
Some of its m.ethods, in fact, have been subjected to the strong-
est criticism. Particularly has criticism been directed to its
practice of raising large campaign funds from individuals who
have or may have a special interest in legislation that is to come
before Congress. The charge is made that members of Congress
in this way place themselves under such ol^ligation to the finan-
cial backers of their campaigns that they cannot pass unbiased
judgments upon questions of legislation which affect the in-
terests of their benefactors. This feeling has grown so strong
in recent years that a demand has sprung up for the abolition
of the Congressional Committee, — the view being taken that
the regular party committees are fully capable of directing all
party campaigns. That there is merit in the criticism noted
must be granted by any one familiar with American politics.
2 28 COMPARATIVE FREE GOVERNMENT
The big business interests of the country have been strongly
represented in the Congress and there is abundant reason to
believe that financial contributions to the Congressional Cam-
paign Committees have had somewhat to do with that fact.
It seems reasonably safe to believe that some of the committee's
methods will be altered. The public welfare demands that
the Congressional Committees, if they are retained at all, shall
not place the members of Congress under obligations to business
and corporate interests which may be the subject of congres-
sional legislation.
Another comment upon the Congressional Committee which
should be made involves its relation to the policy or platform
of its party. This is especially pertinent at times when fac-
tional differences are rife. Is the work of the committee to
be affected in any way by these factional troubles ? Is it, as a
committee, permitted to take sides? Does it have the right
to pass judgment upon, or help determine in an official way,
what the party policy or platform shall be? A case in point
was the attitude of the Republican committee in 1910, when
the insurgent movement among Republicans in Congress was
at its height. The Congressional Committee was controlled
by the stalwarts or regulars, and its influence was turned against
the insurgents. Refusal of aid to insurgent nominees was
threatened. Was the committee acting within its powers?
There is no doubt that this attitude was contrary to the
accepted understanding. Traditionally the Congressional Com-
mittee has nothing to do with the formulation of the party plat-
form, not even so much as has the National Committee. Both
of these committees are executive party institutions. It is
their business to manage election campaigns and leave to the
regular party conventions the task of a(l()()ting platforms and
labeling candidates. It is to be remembered that tiie Con-
gressional Committee was not created by, and is not repre-
sentative of the party voters, but is the creation and agent of
representatives of the party voters in the national legislature.
The interests of the voters and their representalives are not
necessarily identical. Moreover, if representative government
is to be more than a mere name, it is the business of the repre-
sentatives to carry out the public or the party will. It is not
a part of their function to say what that will shall be. The
PARTY MACHINERY AND METHODS — STATE 229
Congressional Committee, therefore, is without authority to
say what is and what is not the party faith. In its own proper
sphere of action, it is a useful, efficient party instrument. But
that sphere is limited to the work of conducting congressional
election campaigns ; it does not include the power to originate
party policies or to judge of party orthodoxy.
Party System Far from Perfect. — Any attempt to describe
the American party organization would be very incomplete
and give a decidedly erroneous impression, which did not make
it clear that the system in practice is full of defects and gives
rise to many serious problems. The desire of party managers
to win elections leads to many questionable practices and fre-
quently to flagrant corruption. Falsification of the registra-
tion lists, bribery of voters, repeating, " stuffing " the ballot
box, tampering with the election returns, and other corrupt
acts are things of rather frequent occurrence. This is especially
the case in some of the large cities where the legitimate party
organization has degenerated into a corrupt political ring. It
would be far from the truth, however, to conclude that such
evil practices characterize the work of all the party committees.
It is probably true that in no other country has there been a
state of political- corruption and viciousness that measures
down to the outrageous conditions which have at times been
exposed in certain American cities ; but, without doubt, it
is equally true that in no other country is there more of partisan
struggle and political strife that is free from improper and illegit-
imate conduct. Political conditions found in some cities are
not typical of the whole country, — a fact which all students
of American politics, and foreign students especially, should
keep clearly in mind. The great bulk of the activity of party
committees is not subject to criticism from the standpoint of
dishonesty and corruption. It is partisan, of course, but not
crooked.
It remains true, however, that the party system is far from
perfect. The complicated party machinery has made it easy
for the political boss and the political ring to develop. The
delegate conventions, particularly, have furnished o{)portunity
for boss manipulation. The control of the party machinery
has too often meant the control of the party itself. The party
committees are supposed to be the agents, the servants, of the
230 COMPAR.\TIYE FREE GOVERNMENT
party and to be responsible to the party voters from whom their
power comes; but too frequently they have tried to be the
masters of the party and have ignored their responsibility to
the voters. As a consequence the party will has often been
thwarted. In so far as this is a fact, true party government
does not exist, for the true political party is merely an organ
for the expression of public opinion. The boss and the ring
have no place in the true political party. This fact is coming
to be understood by the American people, in whom the spirit
of genuine self-government is more alive to-day than ever
before. A new, regenerated, democratized party system is
being developed.
REFERENCES
Beard. American Government and Politics, Edition 1914, Chap. XXX.
Bryce. The American Commonwealth, Edition 1910, Vol. II, Chaps. LIX
to LXIII inclusive.
Macy. Party Organization and Machinery, Chaps. \'III to X\'II inclusive.
Merriam. Primary Elections.
Merriam. "State Central Committees," Political Science Quarterly, XIX,
224 (1904).
OsTROGORSKi. Democracy and the Party System in the United States, Chaps.
XI, XII.
Ray. An Introduction to Political Parties and Practical Politics, Chaps. IV,
V, VI, VII, XVI.
WOODBURN. Political Parties and Party Problems in the United States,
Chaps. XVI, XVII, XVIII.
CHAPTER XVIII
The Federal Courts — Constitutional Status and
Development
A FACT to be kept constantly in mind in the study of Ameri-
can government is that to a large extent the government is the
result of conscious action, of deliberate choice. This involved,
on the part of its founders, not only the sifting of the experience
of the Old and New Worlds, but the creation of some new insti-
tutions of government, — institutions that had no counterpart
in any other nation, either contemporaneous or of the past.
The presidency is one of these. Another is the federal judiciary,
in which is to be found one of America's most significant con-
tributions to world experience with free government. The
organization of the courts created under the Constitution and
the Judiciary Act of 1789, their development, work, and status
in the government system are the subjects for discussion in
this chapter.
The provision of the Constitution with reference to the or-
ganization of federal courts is very meager and indefinite. The
sole authorization of a court system is contained in a single
sentence, found in Section i, Article III: " The judicial power
of the United States shall be vested in one Supreme Court and
in such inferior courts as the Congress may from time to time
ordain and establish." The other sentence in Section i relates
to the term of ofiicc and compensation of the judges, and the
remaining parts of the Article, with great brevity, deal with
the jurisdiction of the courts, trial by jury, and the definition
and punishment of the crime of treason. A considerably smaller
proportion of the Constitution is devoted to the judiciary than
to either of the other coordinate branches of the government.
This does not mean, however, that there was less of forethought
and careful consideration concerning the judiciary than the
other departments. The fact is that the organization of the
231
232 COMPARATIVE FREE GOVERNMENT
courts, and particularly the question of their jurisdiction, and
their relation to the other departments and to the States of
the Union, constituted one of the hardest and most bafifling
problems which the constitutional convention had to meet.
The brevity and indefmiteness of the constitutional provisions
are not to be taken as indicative of indifference on the part of
the constitution makers, or of failure to appreciate the vital
significance of the judicial function ; the exact opposite, in fact,
would be more nearly the truth. The provisions are brief,
the terms general, by design. Setting up a new judicial or-
ganization in addition to those in existence in the various States,
with jurisdiction over the same persons and the same territory
as the latter, was a decidedly difficult undertaking. Too much
of detail upon so delicate a matter, in view of prevailing popular
opinions, might prove disastrous rather than helpful. The
men of the convention themselves were far from being unanimous
in their views as to the courts, and in their differences accurately
reflected the state of the j^ublic mind.
Need for Federal Judiciary. — It was plain enough to all
that some kind of federal judicial system was needed and
must be provided for. Under the Articles of Confederation
there were no courts to give force to the orders of Congress in
case of disobedience by either individuals or States. The
State courts were under no obligation whatever to do this, and
would not do it unless it happened to be their wish to aid Con-
gress. This unsatisfactory condition was generally conceded
to be one of the grave weaknesses of the Confederation. But
without some kind of national courts the situation would be
very much worse under the new Constitution than under the
Confederation. A national legislature was to be established
with wide powers and authority to make its laws ai)ply directly
to the individual citizen, and not merely to the States as was
the arrangement under the Articles. Moreover, a strong execu-
tive branch was to be set up, charged with the enforcement
through its own officers of the law of Congress. In order to
l)rotect the rights of individuals and of the States, a judiciary
with ample power to interpret these laws and apply I hem to
the ends of justice was therefore imi)eratively necessary. One
of two things could be done. Either the State courts, already
in existence, could be reciuired to discharge this duty, or a new
THE FEDERAL COURTS — CONSTITUTIONAL STATUS 233
system of federal courts could be established. Plainly it would
not do to impose this function upon the State courts, for reasons
that were at once apparent. These reasons are succinctly given
by Bryce. " State courts were not fitted to deal with matters
of a quasi-international character, such as admiralty jurisdic-
tion and rights arising under treaties. They supphed no means
for deciding questions between different States. They could
not be trusted to do complete justice between their own citizens
and those of another State. Being under the control of their
own State governments, they might be forced to disregard any
Federal law which the State disapproved ; or even if they ad-
mitted its authority, might fail in the zeal or the power to give
due effect to it. And being authorities coordinate with and
independent of one another, with no common court of appeal
placed over them to correct their errors or harmonize their
views, they would be likely to interpret the Federal Constitu-
tion and statutes in different senses and make the law uncertain
by the variety of their conclusions. These reasons pointed
imperatively to the establishment of a new tribunal or set of
tribunals, altogether detached from the States, as part of the
machinery of the new government." ^
However, notwithstanding the obvious necessity of setting
up federal courts, there was a good deal of uncertainty and
hesitancy in deciding just what these courts should be and do.
As we have seen, the final conclusion as formally stated in the
Constitution is by no means specific. A good deal is left to
legislative action and the unknown forces of tradition and
custom. Out of that simple constitutional authorization has
been erected a judicial organization which doubtless far tran-
scends in size and complexity anything the constitution makers
anticipated, and which exercises powers such as the courts of
European nations never possessed.
Relation of Congress to the Courts. — It will be noticed that
the only court specifically created by the Constitution is the
Supreme Court. The establishment of other courts of inferior
rank is left wholly to Congress. As to the details of the Supreme
Court's organization and work the Constitution makes only
partial provisions. It is declared that the judges of the court,
> Bryce, " The American Commonwealth," New and Revised Edition, Vol. I, p.
22Q.
234 COMPARATIVE FREE GOVERNMENT
as of any inferior courts thai might be established, shall hold
office during good behavior, and that they shall receive com-
pensation for their services which shall not be diminished
during their continuance in office. It is given original juris-
diction in a few cases, and appellate jurisdiction in all others
that may come before the federal courts, subject to the regu-
lations that may be made by Congress. It is also provided
that the members of the court shall be appointed by the Presi-
dent with the approval of the Senate, and like other civil of-
ficers are subject to impeachment. Nothing is said about the
number of Supreme Court judges, the time of the court's sessions,
or the rules that shall govern it. These matters are left to Con-
gress to determine, as is the question of setting up other judicial
tribunals.
It is plain at a glance that in spite of the separation of powers
doctrine which is so fundamental in the United States Constitu-
tion, Congress has a good deal to say about the judiciary.
Exactly how much power Congress has over the court organiza-
tion is a subject of some dispute. Clearly it cannot destroy
the Supreme Court, but unquestionably it could so injure the
court by legislation as to render it useless by making il hope-
lessly inefficient. For example, in deciding upon the number
of judges, which is always subject to congressional control,
Congress might make the membership so large as to interfere
seriously with its capacity for judicial work. Again, while
Congress cannot reduce the number of judges by removing
them, except through impeachment, it can provide that as
vacancies occur through death or resignation or removal after
impeachment, such vacancies shall not be filled and the judge-
ships involved be abolished. This was done in 1866 when the
number of judges was reduced from ten to seven. This could
be continued until only one judge remained, and still the con-
stitutional requirement be fully met. But one judge could
not by any means do the work which devolves u\n)u the Supreme
Court. Again, while Congress cannot diminish the salary of a
juflge during his continuance in office, it clearly could provide
that as a vacancy in the Supreme Court occurs, the salary for
that particular judgeshij) should be reduced to so low a sum
as to cause service on the supreme bench to ai)pear ridiculous
and thus make jurists of stancHng unwilling to accept appoint-
THE FEDERAL COURTS — CONSTITUTIONAL STATUS 235
ment. This might be continued until the character of the whole
court would be changed. As to the inferior courts, the power
of Congress would seem to be even greater. While the lower
judges, like the Supreme Court justices, are secure in their
positions except in cases of impeachment, the lower courts
themselves can be aboHshed. In fact this was done once,
though under rather exceptional conditions, and opinions
differ as to the validity of the act.^ In 1801, just before the
close of President John Adams's administration, the Federalists
provided for the reduction of the Supreme Court membership
from six to five, in order to prevent the in-coming President,
Thomas Jefferson, from filling the vacancy, and created sixteen
new circuit judgeships. On the last night of his term. Presi-
dent Adams filled these positions with partisan adherents.
One of the first things done by the new Congress at the begin-
ning of Jefferson's administration was to repeal the law creating
these " midnight judges," and the act never went into effect.
The constitutionality of this may be questioned, but the re-
pealing law was never tested in the courts and therefore stands
as vaHd. It needs no further comment to make plain that
by this power to abolish the inferior courts, Congress could
practically destroy the whole judicial system. That there is
any danger of this, however, is of course an absurdity. Con-
gress has in a few instances interfered with the courts for partisan
reasons, and may possibly do so again, but that it will seek to
abolish the lower courts without providing for other tribunals
to take their place, is a supposition beyond all reason. The
purpose of the foregoing statements is merely to suggest the
very close relationship between the legislative and judicial
departments and some of the things it would be possible for
Congress to do under the formal Constitution. The independ-
ent judiciary, however, is a thing of fact, notwithstanding the
possibiUtics of congressional interference, and its influence was
never greater than at the present time.
Development of the Court System. — Understanding of the
relation of the judiciary to Congress, as well as of the actual
court organization, will be promoted by a brief review of the
development of the various courts in the federal system. As
already pointed out, action by Congress was necessary before
1 Beard, "American Government and Politics," New and Revised Edition, p. 224.
236 COMPARATIVE FREE GOVERNMENT
the judicial machinery could be set in motion. Even the
Supreme Court, required by the Constitution, could be nothing
more than a name until Congress took the steps necessary to
make it a reality. As for the inferior courts, they had not even
a nominal existence.
The act by which Congress did its part in establishing the
judicial organization is known as the Judiciary Act of 17S9.
This became a law on September 24 of that year and remained
operative until January i, 191 2, when it was superseded by a
new judicial code. Provision was made for the organization
of the Supreme Court which was to consist of one Chief Justice
and five Associate Justices. The jurisdiction of the court was
regulated by extending its original jurisdiction beyond that
provided for in the Constitution to two classes of cases, and
giving it final appellate jurisdiction in all cases. By this act
the country was divided into thirteen districts, and in each
of these a District Court was established with one judge, known
as district judge. The jurisdiction of this court was deter-
mined by giving it certain powers in both civil and criminal
cases. By further provisions of the act these districts were
grouped into three larger districts known as circuits. In each
of these circuits a court was created with original jurisdiction
in both civil and criminal causes, and with appellale jurisdic-
tion in a number of cases arising in the District Courts below.
Separate Circuit Court judges, however, were not authorized.
It was provided that each of these Circuit Courts should be
composed of two Supreme Court justices and the district judge
of the district in which the case at issue originated. The
Supreme Court justices were required to go from district to
district within their respective Circuits and hold court at stated
times in conjunction with the various district judges. Appeal,
where it was allowed, would be from the Circuit Court to the
Supreme Court.
This, in jjrief, gives the organization of tlie federal judiciary
as it was established in the beginning and as it has continued
in its fundamentals to the j)resent time. The basic idea with
respect to the inferior courts is the division of the country into
districts, each with a court of its own, and the grouping of the
districts into a number of circuits, whose courts stand midway
between the District and Su])reme Courts. 'J'he real unit of
THE FEDERAL COURTS — CONSTITUTIONAL STATUS 237
the system of lower courts is the district, and has been from the
first. The District Court is the only federal court whose juris-
diction is exclusively original.
The task of getting this judicial machinery in motion and
winning for it a position of favor in the public mind, was natu-
rally a difficult one which required both patience and tact.
There was a vast amount of suspicion among the people con-
cerning the whole system, and particularly the Supreme Court.
They feared it and were resentful toward it. Considerable
time elapsed before popular confidence in the federal courts
became a fact. The story of the growth of the Supreme Court
from an institution that was surrounded by fear and distrust,
and without work to do, to one with the vast power and prestige
which it has now long had, is a story of entrancing interest, and
reveals one of the most notable developments in the history of
free government. The court held its first meeting on the first
Monday in February, 1790, appointed a clerk, and then ad-
journed because there was nothing for it to do. The situation
at the moment and the striking change that has occurred since
then are graphically indicated by an American lawyer: " Not
a single litigant had appeared at their bar. Silence had been
unbroken by the voice of counsel in argument. The table was
unburdened by the weight of learned briefs. No papers were
on file with the clerk. Not a single decision, even in embryo,
existed. The judges were there ; but of business there was
none. Not one of the spectators of that hour, though gifted
with the eagle eye of prophecy, could have foreseen that out
of that modest assemblage of gentlemen, unheard of and un-
thought of among the tribunals of the earth, a court without a
docket, without a record, wittiout a writ, of unknown and un-
tried powers, and of undetermined jurisdiction, there would be
developed within the space of a single century a court of which
the ancient world could present no model and the modern
boast no parallel; a court whose decrees, woven like threads
of gold into the priceless and imperishable fabric of our con-
stitutional jurisprudence, would bind in the bonds of love,
liberty, and law the members of our great Republic. Nor
could they have foreseen that the tables of Congress would
groan beneath the weight of petitions from all parts of the
country, inviting that body to devise some means for the re-
238 COMPARATIVE FREE GOVERNMENT
lief of that over-burdened tribunal whose litigants are now
doomed to stand in line for a space of more than three years
before they have a chance to be heard." ^
The author of these words does not, in his eloquence, exag-
gerate the facts of the case. It was a most inauspicious begin-
ning for one of the world's greatest political institutions. The
court was almost exclusively an appellate court, and its work
for some time was far from heavy. Its members traveling on
circuit, however, were confronted by laborious and exacting
duties. Transport facihties were meager at that time, and the
work of the judges was physically hard. Within four or five
years the Supreme Court's docket filled up to such an extent
that its members had to be relieved of some of their responsibili-
ties in connection with the Circuit Courts. In 1793, Congress
provided that only one Supreme Court justice should be assigned
to each circuit.
The judicial organization as outlined here continued in force
until the reorganization act of 1S69 was passed by Congress.
Minor changes, of course, were made in the meantime, — the
number of Supreme Court justices being increased, and addi-
tional District Courts authorized as new States were admitted
to the Union and the work of the courts grew heavier. Under
this new law the number of Circuit Courts was increased to
nine and a circuit judge in each circuit provided for. By the
act of 1789 there were Circuit Courts, but no circuit judges.
As previously stated, the law of 1801 creating sixteen circuit
judgeships was repealed the next year before it went into effect.
By the law of 1869 the new circuit judge was given practically
the same power as that held by the Supreme Court justice as-
signed to the circuit. It was provided that the Circuit Court
might Ije held by the Supreme Court justice, by the circuit
judge, or by the district judge sitting alone; two or all three
of these might sit together, of course. The Supreme Court
justice, however, was not required to altcnd the Circuit Court
more than once in two years, and even llien niiglu be ])resent
for only a day or two. This was because the Su|)renie Court
• Carson, Hampton L., "A History of the Supreme Court of the United States."
Quoted by Representative Kciil)en f). Moon, "Tfic ReorRanizalion of the I'cderal
System." Case an<l Comment, Vol. iS, June. ign. Ik'( aiisc of the relief that has
come from the establishment of the Circuit Courts of Appeals, the Supreme Court
is not now so far behind with its work.
THE FEDERAL COURTS — CONSTITUTIONAL STATUS 239
itself was so burdened with work that its members could not
be spared much of the time to go on circuit. The Circuit Court
had both appellate and original jurisdiction, but on account of
the volume of business before it, gave most of its time to cases
on appeal from the District Courts. The district judge might
be called on to hold Circuit Court, and often did so, but the
district judges had their time well filled, as a rule, with the
work of their own District Courts, whose field steadily grew
larger as the country developed and laws became more restric-
tive. The system thus organized was continued until 1891,
when further modification was made in connection with the
Circuit Courts.
By the act of 1891 Circuit Courts of Appeals were created.
This was done to relieve the Supreme Court, which by this
time was swamped by the mass of work devolving upon it. It
was hopelessly behind with its docket, to the serious loss of all
who might have business before it. The law of 1891 provided
a Circuit Court of Appeals for each of the nine circuits and to
these courts was given final jurisdiction over a large number of
cases which formerly went to the Supreme Court on appeal
from the lower courts. This reheved the pressure of business on
the Supreme Court and added much to its efficiency. New
judges were not provided for the Circuit Courts of Appeals,
however, the work of these courts devolving upon the judges of
the various Circuit Courts, which were continued as courts of
original jurisdiction, their appellate powers being transferred
to the new courts. So, under the law of 1891, the federal
court system consisted of the Supreme Court, nine Circuit
Courts of Appeals, nine Circuit Courts, and the District Courts,
seventy-seven in number. The work of the Supreme Court
was entirely appellate, except in the few cases where original
jurisdiction was imposed on it by the Constitution ; that of the
Circuit Courts of Appeals was wholly appellate, its jurisdiction
being final in a large number of cases ; and that of the Circuit
and District Courts was exclusively original.
The anomalous element in this arrangement was the situation
of the Circuit and District Courts. Both were courts of original
jurisdiction, and to a large extent this was concurrent. Each
had exclusive jurisdiction in a few cases, but these were com-
paratively unimportant, and for the most part the two courts
240 COMPARATIVE FREE GOVERNMENT
paralleled each other. In fact, as has already been stated, the
district judge alone could hold the Circuit Court. Moreover,
the circuit judges were required to do the work of the Circuit
Courts of Appeals. There was thus, not only an overlapping
of jurisdiction, but serious interference with the work of each.
The result naturally was that the Circuit Court was held more
and more by the district judges, while the circuit judges gave
more and more attention to their duties on the Circuit Courts
of Appeals. Clearly further change was necessary; and the
logical thing was to eliminate the Circuit Court, which, though
an historic court with an honorable record, had outlived its
usefulness as an independent tribunal.
This reform was accomplished when the so-called Judicial
Code, under which the federal courts are now organized, was
passed by Congress on March 3, 1911, and went into effect
January i, 191 2. This act is a thorough revision and codifica-
tion of the laws relating to the judiciary and provides in minute
detail for the entire judicial department of the government.^
By the terms of this law there are three grades of courts in the
regular system, — the Supreme Court, the Circuit Courts of
Appeals, and the District Courts. Two special courts are
maintained to handle special cases, the Court of Claims and the
Court of Customs Appeals. These are courts of limited juris-
diction and are not looked upon as parts of the regular system.
There is also a complete judicial organization in the District of
Columbia, but its courts are essentially local courts, whose
jurisdiction is almost entirely confined to cases arising within
the District. The regular hierarchy of courts consists of the
three great courts that have been named. Further description
of the judicial organization is necessary.
REFERENCES
([•"or References, sec Chap. XXI.)
• United States Statutes at Large, Vol. 36, I'nrt I, |). 1087.
CHAPTER XIX
The Federal Courts — Present Organization
The Supreme Court, with its foundation resting upon the
soHd rock of constitutional authorization, stands at the head
of the judicial system. It now has nine members, one of whom
is designated Chief Justice, and presides over the court's de-
liberations. The presence of six justices is necessary for a
quorum. Members are appointed by the President, subject to
confirmation by the Senate, and hold ofifice during good behavior.
They receive compensation as fixed by Congress. The Chief
Justice now receives $15,000 a year and each Associate Jus-
tice, $14,500. The Court is required to hold, at the seat of
government, at least one term annually, beginning on the
second Monday in October. This usually continues until May
or June. Adjourned or special sessions may be held whenever
the Court considers it necessary. It is authorized to appoint
a clerk, a marshal, and a reporter of its decisions, and whatever
deputies are necessary for looking after its business. It also
establishes the rules which govern its procedure.
Work and Procedure of Supreme Court. — A large number
of cases is always before the Supreme Court. These are almost
exclusively cases from the lower federal courts or from the State
courts on appeal or by writ of error. It is only rarely that
the Supreme Court is called upon to exercise its original powers.
A good deal of its attention is occupied with questions of con-
stitutional law and passing upon the validity of legislative acts,
either of Congress or of the State legislatures. Naturally this
is considered its most important work. No case will be con-
sidered by the Supreme Court which does not come to it in the
regular way. It will express no opinion about cases that are
not before it, and in deciding those that are before it, the Court
will regularly confine itself to ruling upon those points in con-
troversy which are essential to a determination of the specific
R 241
242 COMPAi-LVTIVE FREE GOVERNMENT
cases at issue. Sometimes this rule has not been observed and
the Court has given expression to obiter dicta, but not often. It
is unwilling to decide more than is absolutely necessary to dis-
pose of the case at hand. Upon poHtical questions, also, the
Supreme Court refuses to give any opinion. It is a court of
law and confines itself to applying the Constitution and the
laws to specific legal controversies which are brought to its
attention by the regular legal processes.
The work of the Supreme Court is very heavy. On an
average, more than five hundred cases come to it every year.
For many years its docket has never been clear, in spite of the
fact that from four to five hundred decisions may be handed
down each year in a term of eight months. The immense
amount of labor involved in this is more clearly comprehended
when the procedure of the Court is kept in mind. Briefs are
submitted by the opposing counsel in every case. Oral argu-
ment in open court is allowed unless the counsel waive the
privilege. The time allotted to each side is usually one and one
half hours, but in the more important cases this may be extended
by the Court. When the arguments are completed, each of the
judges is required to read the record of the case as it has been
developed in the courts below. This may in some instances
involve the careful reading of several thousand pages. After
this task has been completed by each member of the Court, a
conference is called at which the various points of the case are
talked over for the purpose of reaching a common opinion and
determining the principles of law that apply. If the judges
are agreed as to the decision in the case, or if five of them,
constituting a majority of the Court, are agreed, one of them
is designated by the Chief Justice to prepare the Court's opinion.
If the Chief Justice is of the minority, however, the designation
of a justice to prepare the majority opinion is left to one of the
majority, usually the senior member. When this is done by
the member so charged, the opinion is submitted to each of the
judges for careful study and revision. If the opinion is ap-
})roved by the majority, the decision of the Court is announced
at the [)roper lime and the opinion is placed on record and
printed. It may be, however, that some member of the Court
does not ai)provc of the reasoning upon which the opinion is
based, although agreeing with the conclusion that is reached.
THE FEDERAL COURTS — PRESENT ORGANIZATION 243
In that case he may feel called on to prepare an opinion of his
own, a " concurring opinion " in which he reasons out the
conclusion in the way he thinks is right. It may happen, in-
deed, that several of the justices feel impelled to give concurring
opinions. On the other hand, one or more of the judges may
not agree with the majority in the decision of the case and
prepare what is called a " dissenting opinion " in which the
minority view and the reasoning on which it is based, are given
expression. Possibly there may be two or more dissenting
opinions. A good many cases are settled by a divided court
and not infrequently by a bare majority, as was true of the
famous income tax case of 1895 when the Court stood five to
four. The various dissenting and concurring opinions are
printed in the official reports together with the majority opinion.
It is plain that this careful consideration of the hundreds of
cases that are disposed of every year involves a vast amount of
work. Yet it does not exhaust the duties of Supreme Court
justices. Applications are numerous for various writs which
the Court may issue, particularly for writs of error, a process by
which the Supreme Court orders cases brought before it for a
review of the proceedings and findings of lower courts. These
consume time and energy and add not a little to the load which
the Supreme Court must carry. Sometimes, in addition, special
duties must be attended to by the Court, such as revising the
rules of procedure which are observed not only in the Supreme
Court itself, but also in all of the federal courts. For example,
there went into effect February i, 19 13, a complete new set of
equity rules which had been carefully prepared by three of the
justices to whom the work had been delegated.
The Supreme Court is a very dignified body, and its sessions
are characterized by much formality and impressiveness.
Judicial robes are worn while the Court is in session. In solemn
manner, with the Chief Justice leading, the members of the
Court in the order of seniority pass from the gowning room to
the court chamber, and with court attendants, members of the
bar, and spectators standing, ascend the bench just as the clock
strikes the hour of noon, bow with dignity to the attorneys
present, and take their seats. The court crier then announces
the sitting and the work of the session begins. Not only is the
Court a body of great dignity, but it is a most honorable body,
244 COiMPAR.\TIVE FREE GOVERNMENT
having the highest respect and confidence of the Nation it
serves. Where, in the beginning, it was an object of fear and
distrust, it is now, and long has been, an object of veneration and
highest esteem. Its influence, at first nil, is now immeasurable.
Why this is so great is made plain in the next chapter, which
deals with the powers and jurisdiction of the federal judiciary.
Circuit Court of Appeals. — The court next below the Su-
preme Court is the Circuit Court of Appeals. There is one of
these courts in each of the nine circuits into which the United
States is divided. ^ The number of judges in the different cir-
cuits varies from two to four, according to the business which
has to be done. One circuit has two judges, five circuits have
three judges, and three have four judges. Each judge is re-
quired to reside in his own circuit and receives a salary of seven
thousand dollars a year. One member of the Supreme Court
is allotted to each circuit. The Supreme Court justices and
the various district judges are competent to sit as judges of the
Circuit Court of Appeals within their respective circuits. In
practice, the Supreme Court justices do not take part in the
work of this court, their time being more than filled with their
duties on the higher court. In case the full membership of a
Circuit Court of Appeals is not present at any term, the law
requires that one or more of the district judges within the cir-
cuit shall be called in to make up a full bench. The district
judges, however, are not permitted to sit in cases which they
have previously tried, or heard in the District Court. These
courts are required to hold several terms annually, sitting in
(liffLrent cities of the circuits, some of which are specifically
provided for in the Judicial Code. Each court apiwints a clerk
whose duty it is to keej) a proper record of its proceedings.
The United States marshals in the several districts where the
court is held are the marshals of the Circuit Court of Ai)peals.
It is their duty to attend the sessions of the court, serve and
• The circuits arc made up as follows: The first circuit, with tlircc judges, in-
cludes the Stales of Rhode Island, Massachusetts, New Hampshire, and Maine;
the second circuit with four judKes, Vermont, ('onnc(ti(Ut. and New N'ork ; the third
with three judges, Pennsylvania, New Jersey, and Delaware; the fourth, with two
ju.lKcs, Marylan.l, Virk'inia, West VirKJuia, North Carolina, and South Carolina;
the fifth, with three judges, C.corKJa, Florida, Alahama, Mississipjii, Louisiana, and
Texas; the sixth, with three judges, Ohio. Michigan, Kentucky, and Tennessee; the
seventh, with four jurlces, Indiana. Wisconsin, and Illinois; the eiRhth, with four
judges. Nebraska, Minnesota, Iowa, Missouri, Kansas, Arkansas, Colorado, Wyo-
THE FEDERAL COURTS — PRESENT ORGANIZATION 245
execute its orders, and have charge of the property of the
United States used by the court. As previously stated, the
purpose in view in establishing the Circuit Courts of Appeals
was to relieve the Supreme Court of a part of its excessively
heavy labors as an appellate court of highest authority. They
were therefore given final jurisdiction in a large number of cases.
This has worked to the advantage of the higher court, but
because the Supreme Court is made the final arbiter in all
cases involving the constitutionality of laws, both State and
national, and because of the ease with which the question of
constitutionality may be raised, the relief afforded has not
been as great as was desired.^ Notwithstanding this fact,
however, the Circuit Courts of Appeals are tribunals of very
high standing and great powers, as is shown later in the dis-
cussion of their jurisdiction.
The District Court. — Below the Circuit Court of Appeals,
and at the bottom of the list, stands the District Court. This
court was established by the Judiciary Act of 1789 and has
held its position without a break, steadily gaining in influence
and power. The country is divided into eighty districts and in
each of these there is a District Court. Each State constitutes
at least one district. Some of the larger and more populous
States are divided into two or more districts, Texas and New
York each having four. As a rule, each district has at least
one judge, though in a few instances one judge serves two dis-
tricts. In several of the districts an additional judge is pro-
vided for in the law, the southern district of New York being
allowed three additional judges. Each one is required by law
to reside in the district or in one of the districts for which he is
appointed. Failure to comply with this provision is made a
high misdemeanor, an offense which subjects the offending
judge to impeachment. The salary of district judges is fixed
by statute at six thousand dollars a year.
Several terms of the District Court are held each year. The
time when the term shall begin and the place where the court
ming, North Dakota, South Dakota, Utah, and Oklahoma; the ninth, with three
judKes, CaUfornia, Oregon, Nevada, Washington, Idaho, Montana, the Territory
of Hawaii, and the Territory of Alaska. The Circuit Court of Appeals in the ninth
circuit is also empowered to review upon appeal or writ of error the decisions of the
United States Court for China, established in igo6 under treaty agreement.
• Beard, " American Government and Politics," New and Revised Edition, p. 2g8.
246 COMPAR.\TIVE FREE GOVERNMENT
shall sit are in each instance specified in the law. A good
many of the districts are divided into smaller districts known
as " divisions," provision being made for holding court in each
division at stated times. To illustrate the arrangement, take
the provisions of the law that apply to Iowa, a typical State.
Iowa is divided into two districts, known as the northern and
southern districts, in each of which there is a District Court.
Each of these courts has its own judge and staff of court officers.
The northern district contains four divisions and the southern
district six divisions, in each of which the court convenes twice
a year. The time for holding court in each division is fixed by
law. Similar provision is made for each of the divisions and dis-
tricts, where the latter are divided, in the entire country. Dis-
trict Court is held in some two hundred and seventy-six places.
Special terms may be held at any time when the district
judge feels that there is need. These may convene at the same
places as the regular terms, or elsewhere as the judge may
direct. Any business may be transacted at a special term which
may be transacted at a regular term. For equity and ad-
miralty business, the District Courts are always open, whether
in term time or in vacation.
In case a district judge is prevented, by any disability, from
holding court at the stated time, some other district judge,
under a procedure provided by law, may be called in to take
his place and perform all his duties while the disability con-
tinues. Ordinarily the judge called upon in this way will be
the judge of some other district in the same circuit, but if no
other district judge of the same circuit is available, a judge of
some other circuit may be designated, in the manner provided
by law, for the performance of this duty. Or, if no district
judge can be found for the assignment, one of the circuit judges
may be named and he will proceed to hold District Court until
the disabled judge returns or other provision is made for supply-
ing the temporary vacancy.
The District Court is a court of exclusively original jurisdic-
tion. Its powers are wide and cover both civil and criminal
matters. Its criminal juiisdii lion, however, is limited to
offenses made criminal by federal law, and is therefore very
different from that of the courts of the several States. The
federal courts are not concerned with crimes under State statutes
THE FEDERAL COURTS — PRESENT ORGANIZATION 247
or the common law, but only with offenses against the Nation
which have been made crimes by the law of Congress. In the
trial of criminal cases the jury is always used. This is required
by the Constitution which guarantees to the accused in all
criminal prosecutions except impeachment cases, the right to a
speedy and public trial by an impartial jury. In some civil
matters, also, the jury is used. The District Court thus is the
one jury court in the federal system. Indictments are voted
by the grand jury which is summoned by the district judge at
the time of the court's regular sessions. The grand jury indict-
ment is required by the Constitution before any person may be
tried on a criminal charge. The federal grand jury consists of
not less than sixteen nor more than twenty-three persons. It
is not summoned to attend the District Court unless the judge
considers that there is need for its services. The selection of
jurors and service upon both the grand and petit juries are
minutely regulated by law.
In connection with the District Court some reference should
be made to the representatives of the Department of Justice
in the different judicial districts. These are the United States
district attorneys and marshals. There are a district attorney
and a marshal in each district, and where there is need, assist-
ants and deputies are appointed. These officers are appointed
by the President, with the Senate's approval, and are under the
direction of the Attorney- General of the United States, who is
responsible to the President for the administration of the De-
partment of Justice. It is through the district attorneys that
prosecutions for the violation of federal laws are begun and
carried on in the District Courts. In the summoning of grand
juries, the district judges are guided largely by their wishes.
The efficient enforcement of the laws, in fact, depends a good
deal upon the integrity, zeal, and skill of these officers. The
duty of the marshals is to arrest offenders against federal laws,
serve official papers, enforce the orders of the court, and help
see that the laws are obeyed. The district marshals are not
confined in their work to the jurisdiction of their respective
District Courts, but serve also the Circuit Courts of Appeals.
Special Courts. — In addition to the courts in the regular
system, the United States maintains two special courts, as pre-
viously noted. The older of these is the Court of Claims,
248 COMPARATIVE FREE GOVERNMENT
established in 1855. It consists of a chief justice and four
judges, who are appointed in the same manner as other judges
and hold office during good behavior. The chief justice receives
an annual salary of S6500, and the other judges, $6000. The
court is required to hold one annual session at the city of Wash-
ington, beginning on the first Monday in December and con-
tinuing as long as the court considers necessary. Three of the
judges may hold court and transact any business that may
properly come before it ; but the concurrence of three judges
is necessary to decide any case. In general the work of the
Court of Claims, as its name indicates, is concerned with claims
against the government of the United States. It is very much
more than an auditing body, however, and its power and dignity
as a court of high rank should not be underestimated. Its
jurisdiction has been extended from time to time by act of
Congress. Its judgments are final in many cases, but where
the amount in controversy exceeds $3000, the claimant, if the
judgment is against him, may appeal to the Supreme Court,
providing the appeal is taken within ninety days after judgment
is rendered. The government is given the right of appeal in
all adverse judgments, regardless of the sum involved. Many
imjjortant cases, involving large sums of money, oftentimes
millions of dollars, are brought before the Court of Claims.
Cases may be referred to it, also, by Congress or by the execu-
tive departments. This court, aside from expediting the settle-
ment of claims against the government, has served two good
purposes ; it has lightened the load upon the Supreme Court,
and it has relieved Congress from a good deal of annoyance
at the hands of those having private claims, who use political
influence to obtain congressional action. Such cases are simply
referred to the Court of Claims, and Congress acts according to
the court's findings.
The other special court is the Court of Customs Appeals.
This court was established by the tariff act of 1909, and was
made necessary by the multitude of controversies arising out
of the administration of the tariff laws. It consists of a i)resid-
ing judge and four associate judges, appointed by the President
in the usual way. The salary is seven thousand dollars a year.
Any three members constitute a ciuorum, and the concurrence
of ihree memljcrs is necessary for the decision of any case. The
THE FEDERAL COURTS — PRESENT ORGANIZATION 249
court is always open for the transaction of business, and its
sessions may be held in the several judicial circuits, at its own
discretion. It is made by law the court of final appeal in all
cases arising out of controversies over the classification of im-
ported goods which involve questions of jurisdiction and law.
In the words of the law creating the court, it shall exercise
" exclusive appellate jurisoiction to review by appeal, as herein
provided, final decisions by a Board of General Appraisers in
all cases as to the construction of the law and the facts respect-
ing the classification of merchandise and the rate of duty im-
posed thereon under such classification, and the fees and charges
connected therewith, and all appealable questions as to the
jurisdiction of said board, and all appealable questions as to the
laws and regulations governing the collection of customs
revenues ; and the judgments of said Court of Customs Appeals
shall be final in all such cases."
The courts of the District of Columbia are federal courts
inasmuch as the District is federal territory and is wholly under
the authority of Congress, but they are not parts of the regular
court system. They are local courts that correspond in their
nature and functions to the courts of one of the States, although
cages sometimes are instituted in them which are of importance
to the whole Nation. A complete system of courts has been
established. This includes a Court of Appeals, a Supreme Court,
a Municipal Court, a Police Court, and a Juvenile Court. The
Court of Appeals, consisting of three judges, is the highest in
rank, hearing cases on appeal from the District Supreme Court
and the other lower courts. It also hears appeals from the
decisions of the Commissioner of Patents. Its judgments are
reviewable, under the conditions prescribed by law, by the
Supreme Court of the United States.
In the foregoing discussion of the federal courts, attention
has been given only to their organization and relations to one
another from the standpoint of structure. But this, of itself,
gives only an imperfect understanding of the courts and their
working. To complete the picture, consideration must be given
to the vital question of powers and jurisdiction, the subject of
the next chapter.
REFERENCES
(For References, see Chap. XXI.)
CHAPTER XX
Jurisdiction of the Federal Courts
The jurisdiction of the federal judiciary is a subject that is
Hkely to be somewhat confusing to persons untrained in the
law, and yet a fairly accurate knowledge of its intricacies is
essential to a clear understanding of the administration of jus-
tice in the United States. Indeed, more than that is dependent
on this knowledge. The very powers of government — of the
States, of the Nation, of governmental departments — may be
involved in the action of the federal judicial authority. Con-
stitutional readjustments and changes in legislative and adminis-
trative policies may follow its decisions. The question of the
right of the judiciary to act, therefore, becomes one of supreme
consequence, and an understanding of the relation of the States
to one another and to the Nation, and of the status and powers
of the governmental departments, involves some knowledge of
what the judiciary may and may not do.
The confusion which seems to inhere in the subject is reduced
somewhat if the fact is grasped that there are two kinds of juris-
diction to be kept in mind. There is the jurisdiction of the
federal court system, taken as a whole, as distinguished from
that of the State courts, and there is the specific jurisdiction
of each of the courts in the federal system. The one is con-
ferred on the courts by the Constitution, which enumerates the
kinds of cases they may hear, and the other by act of Congress,
except in the case of the Supreme Court, a part of whose juris-
diction is specifically provided for in the Constitution. These
are not in conflict in any way, for Congress cannot give juris-
diction to a court involving powers that arc not recognized by
the Constitution. All that Congress can do, subject to the
limitation with resf)ect to the Su[)reme Court, is to parcel out
the judicial powers enumeratefl in the Constitution among the
courts that are established, and [jrovide regulations for their
-250
JURISDICTION OF THE FEDERAL COURTS 251
exercise. The totality of judicial power cannot be increased
or diminished by act of Congress. In apportioning the juris-
diction of the inferior courts, Congress is free to do what it
pleases. It may happen, therefore, that some of the judicial
power recognized by the Constitution is not actually exercised
by any court, because Congress has not provided for its
exercise.
Constitutional Jurisdiction. — First, then, let the constitu-
tional jurisdiction of the federal judiciary be considered. This
is not a general jurisdiction, in the legal sense, but a limited
jurisdiction. That is, the federal courts cannot hear any and
all cases that may arise, but only those over which jurisdiction
is given by the Constitution. The judiciary, like the legisla-
tive and executive departments, exercises delegated, limited
powers. It can do only what it is expressly or by implication
permitted to do by the Constitution. In the use of the powers
granted, however, it is without restriction. It is this limitation
of their powers, it should be noted, which differentiates funda-
mentally the federal courts from the courts of a State, the latter
being courts of general jurisdiction. The principle involved is
the same as that which is in mind when it is said that the federal
government has delegated powers, while the States have the
inherent or original powers of government. The States can act
in all matters that have not been denied to them by the Con-
stitution, but the federal government can act only in those
things that have been delegated to it by the same supreme au-
thority. So it is with the courts.
The provisions of the Constitution giving the totality of
judicial power lodged in the Nation are contained in one short
paragraph, which reads : " The judicial power shall extend to
all cases, in law and equity, arising under this constitution, the
laws of the United States, and treaties made, or which shall be
made, under their authority ; to all cases affecting ambassadors,
and other public ministers, and consuls; to all cases of ad-
miralty and maritime jurisdiction ; to controversies to which
the United States shall be a party ; to controversies between
two or more States ; between citizens of different States, between
citizens of the same State claiming lands under grants of dif-
ferent States, and between a State, or the citizens thereof, and
foreign states, citizens, or subjects."
252 COMPARATIVE FREE GOVERNMENT
It is helpful to note, what a careful study of these provisions
makes clear, that the causes which may come before the federal
courts are of two classes : those that relate to certain questions
or matters, regardless of the persons who are litigants, and
those that involve certain persons or parties, regardless of the
questions thp-t are in controversy.^ Let us take up in order
the various cases in each of these classes, beginning with the
first one mentioned, cases that depend upon the questions in
litigation.
Jurisdiction Dependent upon Questions Involved. — ■ I. There
are two general kinds of questions that carry with them federal
jurisdiction : cases in law and equity arising under the federal
Constitution, statutes, or treaties ; and cases of admiralty and
maritime jurisdiction.
I. The first of these is the most extensive class of cases
assigned to the federal courts and gives to them the authority
to hear and decide any case which involves the interpretation
of the federal Constitution, of federal laws, or of treaties. It
gives to either party to a suit who claims protection under any
of these the right to have his case adjudicated by the federal
courts, subject to the regulations provided by Congress. It
does not require, however, that all cases arising under the federal
Constitution, laws, or treaties shall be heard by the federal
tribunals. The purpose of the provision is to give the federal
government, through its own courts, full authority to pass upon
all controversies involving its own powers. This was necessary
in order to maintain its supremacy in the field assigned to it by
the Constitution. Action involving rights under federal law
may be brought in State courts, and if the law is upheld and
enforced, the national authority has no further concern in the
matter. But if the rights claimed under federal law are denied
by the .State court, then the way must be open for the case to
be determined by the federal court of proper jurisdiction, either
upon the initiative of the party asserting the authority of the
federal law, or that of the fcfleral court itself. Likewise, if
action is brought under Slate law, and the issue is made that
this law is repugnant to the federal Constitution, laws, or treaties,
the final determination of the matter must rest with the federal
judiciary, if the State court upliolds the validity of the law in
• Cohens V. The ^tdk of Virginia, 6 Wlicalon 264 (1821).
JURISDICTION OF THE FEDERAL COURTS 253
question. But if this validity is denied, the national authority
is fully recognized and there is no need for an appeal to the
federal courts.^ The principle involved in this is the supremacy
of the national authority in its own sphere. The only way to
make this sure was to give to the Nation the unquestioned
right to decide for itself by means of its own properly consti-
tuted agencies whether it has or has not the powers that are
called in question.
It is to be noted that the phrase, " in law and equity," in
the constitutional provision is without particular significance
as far as distinction between the federal and the State judicial
authority is concerned. It simply means that whether the
cases are in law or in equity, they may be heard by the federal
judiciary, if they come within its constitutional jurisdiction.^
2. The other kind of cases in which the jurisdiction turns
upon the character of the question involved, are " cases of
admiralty and maritime jurisdiction." This jurisdiction is not
limited to the high seas, but has been extended by judicial con-
struction to include all navigable waters within the United States.
Also, the cases within this jurisdiction are not confined to prize
cases, but cover all transactions in connection with navigation
and the control of the great lakes and navigable rivers. With
the great commercial development of the United States this
branch of the judiciary's power has become increasingly im-
portant. The meaning of admiralty and maritime jurisdiction
as developed in the United States is given thus by Professor
Willoughby :
" Admiralty jurisdiction refers to that class of cases which
are cognizable in courts established by an admiral, in that
officer being vested, according to EngHsh law, the government
iBryce, "The American Commonwealth/' New and Revised Edition, pp. 233-
234-
2 "In the jurisprudence of England, there were at the time our Constitution was
framed, and until recently, distinct courts of law and of equity. Law and equity
in this sense are simply different divisions of jurisprudence ; the distinction between
them depends on the nature of the case, or the nature of the relief which the court
may grant. Such distinction is still recognized in some of the states, although in
many states the same courts administer both law and equity. By the use of these
two terms in the federal constitution, it was only intended to indicate that both law
and equity may be administered in the federal courts, if the case is one otherwise
coming within jurisdiction of those courts."' — McClain, " Constitutional Law in
the United States," Second Edition, p. 230.
2 54 COIMPAR-VTIVE FREE GOVERNMENT
of the King's navy and the authority to hear all causes con-
nected with the sea.
" Maritime jurisdiction, as the name itself indicates, is the
jurisdiction over matters relating to the sea. To a very con-
siderable extent, then, admiralty jurisdiction and maritime
jurisdiction are of like meaning. The terms are not, however,
synonymous. Admiralty now has reference, primarily, to the
tribunals in which the causes are tried ; maritime to the nature
of the causes tried. The admiralty and maritime jurisdiction
of the United States is then of a double nature ; that over
cases depending upon acts committed upon navigable waters;
and that over contracts, and other transactions connected with
such navigable waters. In the former class of cases the juris-
diction is given by the locality of the act ; in the latter class
by the character of the act or transaction." ^
Jurisdiction Determined by Parties Involved. — 11. The
second class of cases within the control of the federal judiciary,
those in which the jurisdiction is determined by the parties to
the suits, without regard to the question at issue, is not so
extensive as the one just considered, though itemized at greater
length in the Constitution. It includes controversies, however,
of the very highest importance. The cases are as follows :
I. When ambassadors, public ministers, or consuls are parties
to the suit.
The control of foreign relations rests exclusively in the
federal government. The representatives of foreign nations
are accredited to the United States and have no dealings with
any of the State governments. They arc the representatives of
independent sovereign States, and in any court proceedings in
which they might be involved arc entitled to a settlement by
the tribunals of the national government. It would be con-
sidered highly improper to subject them to action by the State
courts, and any attempt to do so doubtless would be resented
by their respective governments. So the Constitution ])i{)vides
that cases affecting ambassadors, public ministers, or consuls
come within the control of the federal courts; and not only
that, but also, that over such cases the Supreme Court has
original jurisdiction. This, however, is not made an exclusive
jurisdiction. Hence, Congress may confer original jurisdiction
» Willoughby, " The CoiislituUoiial Law of the United btates," Vol. II, p. 1 107.
JURISDICTION OF THE FEDERAL COURTS 255
upon the inferior federal courts in cases involving foreign rep-
resentatives, if it wishes to do so. This has been done in the
case of consuls who, according to the usages of international
law, hold a position somewhat different from that of ambassa-
dors and ministers. The right of such officers to bring suit in
the Supreme Court continues, however; Congress cannot set
aside or qualify in any way the constitutional provision. With
respect to wrongs committed by ambassadors and public minis-
ters, redress, under the rules of international law recognized by
civilized nations, is not sought in the courts but through an
appeal to the State Department and diplomatic intercourse
and agreement. Such officers are looked upon as exempt from
court control. The consul, however, being a mere agent and
not the personal representative of a foreign sovereignty, holds
a different status and is within the courts' jurisdiction.
2. When the United States is a party.
This provision merely gives to Congress the power to provide
for the trial in the federal courts of cases in which the United
States is a party, either as plaintiff or defendant. It does not,
of course, confer upon any person the right to bring suit against
the United States, or imply that such right exists. The national
government, the same as a State government, cannot be sued
by individuals without its own consent. The provision simply
makes clear that, if suits against the Nation are to be permitted,
they shall be heard in the federal and not in the State courts.
No other plan was possible, in the light of the experience of the
Congress under the Articles of Confederation. The Nation's
supremacy in its own constitutional sphere could not be main-
tained, if it were subject to the authority of the State courts.
Only by its own courts can the Nation have its powers deter-
mined. By act of Congress individuals are permitted to bring
suit against the national government whenever, as provided by
law, there is ground for action. The Court of Claims was
established for the particular purpose of hearing cases for re-
covery against the United States. This court, however, can
decide only the validity of the claim ; the payment of the
judgment must be authorized and provided for by Congress.
3. When two or more States are parties to the suit.
Obviously the settlement of a controversy be.tween two or
more States could not safely be left to the courts of one of the
256 COMPARATIVE FREE GOVERNMENT
interested parties. The fundamental idea which lies back of
every judicial body is its impartiality. There can be no satis-
factory administration of justice on any other basis. To insure
proper protection of the States in their relations to one another,
jurisdiction over disputes arising among them was given by
the Constitution to the federal judiciary, which is independent
of all the States alike. Disputes over State boundaries con-
stitute the most important cases that have arisen among the
States. At the time of the adoption of the Constitution there
were existing controversies involving eleven States over the
question of boundaries, and the constitutional provision under
discussion was unquestionably inserted by the constitution
makers with these disputes in mind. It was clearly impossible
to leave the decision of these controversies, which were of long
standing, to the courts of the States whose claims were in
dispute.
Moreover, some such arrangement as this was made neces-
sary by the constitutional provision which forbids the States to
negotiate agreements with one another. By such agreements
or by permitting the States to settle their differences in their
own way through their own agencies, the Union itself might be
seriously endangered. Here again the maintenance of the
national authority made the use of the federal courts a necessity.
It is to be noted that cases of this kind are placed by the
Constitution within the original jurisdiction of the Supreme
Court, on the same plane with cases affecting ambassadors,
public ministers, and consuls. These are the only kinds of cases
thus set apart. It should be added, however, that cases brought
by the United States against individual States, and by Slates
against the United States, have been entertained and decided
l>y the Supreme Court.
4. When a State and citizens of another Slate arc parlies to
the suit.
As the Constitution was in the l^cginning, two kinds of cases
were possible under this provision : those brought by a State
against the cilizx-ns of another State, and those brought by the
citizens of a State against another State. The first is possible
now, but the second is not. By the eleventh amendment
which became a part of the Constitution in lyo-S, only nine
years after the Constitution itself became operative, the right of
JURISDICTION OF THE FEDERAL COURTS 257
citizens of one State to bring suit against another State was
abolished. It was held to reflect upon the dignity and to be a
denial of the independence of the States to compel them to sub-
mit to suits against their will.^ The result of this amendment
was to make it impossible for the federal courts to claim juris-
diction in any case brought against a State, unless the case were
instituted by another State, or by a foreign state, or by the
United States.
Good reasons existed for placing the cases that may arise
under this clause within the jurisdiction of the federal courts.
For one thing, justice demands that they be heard by courts
entirely free from the charge or even the suspicion of partiality.
A State appearing as plaintiff in a suit against a citizen of an-
other State could not reasonably expect to have the cause
determined by its own courts ; neither could the defendant in
the case reasonably expect to have the courts of his own State
adjudicate the matter. The latter not only might result in
injustice to the plaintiff State, but would compel it to submit
to a course that was not consistent with its dignity as a State.
Moreover, there is a practical difficulty in the way of having
the case determined by the courts of the State bringing the suit.
The jurisdiction of a State's courts is limited absolutely to the
territory and persons within its own boundaries ; a non-resident,
therefore, cannot be brought within their control unless he
appears voluntarily. This of itself made it necessary to give
the federal courts jurisdiction ; otherwise no decision could be
obtained and the ends of justice would be denied.
5. When citizens of different States are parties to the suit.
This is one of the most important of the classes of cases
assigned to the federal judiciary. Most of the civil business
coming before the inferior federal courts involves controversies
between citizens of different States. The object of the con-
stitutional provision is the same as of others previously con-
sidered, — to make available for the litigants a court that is
free from prejudice, or the possibility of prejudice on account
of their citizenship. The law applied need not be federal law ;
> Great indignation prevailed among the people of all the States when the Supreme
Court in 1703, in the case of Chisholm v. Georgia (2 Dallas 419) held that a suit of
this kind was permissible under the Constitution. In this case Georgia refused
to appear, and judgment was given against her by default. The agitation which
this case aroused resulted in the eleventh amendment.
258 COMPARATIVE TREE GOVERNMENT
it may be State law, — the law of one of the States of which
parties to the suit are citizens, or even of a third State in
which, for instance, the property involved in the controversy
is located.
In these cases the question of citizenship is fundamental,
and sometimes must be determined by the court before which
the suit is brought in deciding whether or not it has jurisdiction
under this clause of the Constitution. Citizenship of a State
and citizenship of the United States are not identical. One
may be a citizen of the latter without being a citizen of the
former. Therefore for a suit to be brought under this consti-
tutional provision, the State citizenship of each party must be
definitely estabUshed ; and this citizenship must be of different
States. A controversy between a citizen of a State and a citizen
of the United States residing in one of the Territories of the
United States or in the District of Columbia, could not be
brought to trial under this clause of the Constitution. It has
been held, however, by the Supreme Court, that within the
meaning of this clause any person who is a citizen of the United
States, whether native born or naturahzed, is a citizen of the
State in which he has his domicile.^
It is important to note that corporations, though they are
not citizens in the strict sense of the term and cannot have
citizenship such as belongs to natural persons, are conceded the
right, by ruling of the Supreme Court, to bring suits under the
clause in question. The Court's position on this has been
changed from time to time, however. In the beginning it was
held that a corporation is not a citizen within the meaning of
the diverse citizenship clause. This is still the theory of the
law, but by a fiction the Court practically concedes citizenship
to corporations for the purpose of this clause. For many years
the Court held that, since a corporation is an artificial legal
entity, it " would look behind its corporate personality to see
whether the individuals of which it was composed were, each
and every one of them, citizens of a State dilTerent from that
of each of the parties sued." Later, however, this position was
yielded and the Court asserted that it would presume the citizen-
shij) of the persons comi)()slng the corporation to be that of
the State in which the cori)oration was chartered. And still
• Willoughby, "The Conslitulional Law of the United States," Vol. II, p. Q84.
JURISDICTION OF THE FEDERAL COURTS 259
later it was held that this presumption could not be rebutted.^
The ruling which the court made and which holds may be
stated in its own words : " Where a corporation is created by
the laws of a State, the legal presumption is, that its members
are citizens of the State in which alone the corporate body has
a legal existence ; and that a suit by or against a corporation,
in its corporate name, must be presumed to be a suit by or
against citizens of the State which created the corporate body ;
and that no averment or evidence to the contrary is admissible,
for the purpose of withdrawing the suit from the jurisdiction
of a court of the United States." - That the actual citizenship
of the stockholders is not of the State in which the corporation
is chartered seems to be of no importance. The practical
effect of the Court's position is to make corporations citizens
as far as the diverse citizenship clause is concerned.
6. When citizens of the same State are parties to a suit in-
volving lands claimed under grants of different States.
Practically this class has not given rise to serious difficulties
in its appUcation, though under it cases involving large financial
interests may arise. The necessity for a provision of this charac-
ter is clear enough. The laws that are applicable are not those
of the State of which the parties to the suit are citizens. And
the laws of one State cannot be administered by the courts of
another State. Cases of this kind are clearly cases for the
federal courts and were so regarded by the framers of the Consti-
tution.
7. When a State or its citizens and a foreign state or its citi-
zens or subjects are parties to a suit.
This clause, though far less important than the others that
have been considered, is interesting for different reasons.
Several kinds of cases are possible under it, at least theoretically.
The suit may be one between a State and a foreign state ; be-
tween a State and the citizens of a foreign state ; between the
citizens of a State and a foreign state ; or, between the citizens
of a State and aliens, that is, citizens or subjects of foreign
states. With the exception of the last kind, no cases under this
clause have ever arisen, and it is difficult to see how they could
arise. The Constitution, of course, cannot give a State the
1 Willoughby, "The Constitutional Law of the United States," Vol. 11, p. 985.
^Ohio &• Mississippi R.R. Co. v. Wheeler, i Black 286 (1862).
26o COMPARATIVE FREE GOVERNMENT
right to sue a foreign state ; in no way could such foreign state
be compelled to appear as defendant. Since the States can have
no deaUngs with foreign states, except with the consent of Con-
gress, it is hard to imagine a situation in which a foreign state
would seek redress from a State through the courts. If such
should happen, it is presumed the jurisdiction would lie with the
federal courts, although it is by no means sure. It would lie
there if anywhere, but it is not at all certain that this jurisdiction
could be asserted, even if both parties were to consent to the
suit.^ Even the theoretical right of aliens to bring suit against
a State, as provided for in the original Constitution, was
destroyed by the eleventh amendment, and for the same reasons
that the citizens of one State were deprived of the right to sue
another State. It was inconsistent with the dignity and inde-
pendence of the States of the Union. Suits between citizens
of a State and ahens, however, are of frequent occurrence.
That these should be decided by the federal judiciary and not
by that of the State whose citizens are parties to the litigation
is obviously the only proper procedure possible.
Jurisdiction of Particular Courts. — In the discussion thus
far the only jurisdiction considered is that which, by constitu-
tional grant, is possible to the federal judiciary as a whole, as
distinguished from that of the State courts. No account has
been taken of the special jurisdiction of particular courts. It
remains to take up in turn each of the courts in the regular sys-
tem and see in a general way what part of the constitutional juris-
diction has been apportioned to it by Congress, which, with the
exception of two instances in connection with the Supreme Court,
has full authority to say what powers each court shall exercise.
It is logical to begin with the Supreme Court which, in part,
has its jurisdiction defined in the Constitution.
I. The only reference in the Constitution to the powers of
particular courts is found in the short paragraph : "In all cases
alTecling ambassadors, other public ministers and consuls, and
those in which a Slate shall be a parly, the Supreme Court
shall have original jurisdiction. In all the other cases before
mentioned, the Supreme Court shall have appellate jurisdiction,
both as to law and fact, with such exceptions, and under such
regulations as the Congress shall make."
« VVilloughby, " The Constitutional Law of tlic Uiiilctl States," Vol. II, p. 1060.
JURISDICTION OF THE FEDERAL COURTS 26 1
It will be noticed that the Supreme Court's original jurisdic-
tion in the two cases mentioned is not, as has been pointed out
previously, an exclusive jurisdiction. The inferior courts may be
made courts of first instance in the same kinds of cases by act of
Congress. Of course, the Supreme Court cannot be deprived
by law of its original jurisdiction, and parties to suits in the cases
mentioned cannot be denied the right of beginning action in the
Supreme Court, but they may be given the opportunity to
start proceedings in the lower courts if they wish. By law,
however, the Supreme Court is given exclusive jurisdiction in
all cases where two or more States are parties, and in all suits or
proceedings against ambassadors or other public ministers, or
their domestic servants; in cases brought by ambassadors
or public ministers it has original but not exclusive jurisdiction.
It is to be noticed, also, that practically all of the Supreme
Court's work is appellate in character, extending to all cases
that may come before the federal judiciary, with the exception of
the two cases in which it is a court of first instance. Full
authority to regulate this appellate jurisdiction, however, is
conferred upon Congress, the constitutional provision not
guaranteeing in any manner an appeal to the Supreme Court.
It is under this authorization that Congress has conferred upon
the Circuit Courts of Appeals final jurisdiction in a large number
of cases, and has regulated minutely the conditions of appeal
from the different lower courts. Congress could prevent
appeals entirely by making no provision for them.
Attention should be directed at this point, also, to the fact
that the Constitution does not confer upon the federal courts
absolutely exclusive jurisdiction in any kind of cases. As far
as the language of the Constitution is concerned, the State
courts may exercise a concurrent jurisdiction with respect to
all of the cases enumerated as being within the scope of the
judicial power of the Nation. It is left with Congress to say
what the apportionment of jurisdiction shall be. This the Con-
gress has done and has given exclusive jurisdiction to the federal
courts in a number of things, such as federal crimes, admiralty
cases, patent right and copyright cases, suits in which the United
States is a party, suits between two or more States, and many
other matters. A good many cases under the regulations of
Congress may be brought in either the federal or State courts ;
262 CO:vIPARATIVE FREE GOVERNMENT
and in a few instances the State courts are permitted to have
exclusive jurisdiction. In thus distributing court jurisdiction,
Congress does not and cannot delegate judicial power to the
State courts. Congress has no power over the State courts or
any other branch of the State governments. Whatever con-
current jurisdiction the State courts have is theirs of their own
right. No powers of any kind have been given the States by
the federal Constitution or by any of the agencies created by
it. This concurrent judicial power, as is true of any of the con-
current legislative powers, must be looked upon as a part of the
inherent powers of the States. The Constitution gives to Con-
gress authority to confer exclusive jurisdiction in certain cases
upon the federal courts. If it does not do this, the State courts
are free to act of their own right.
The appellate jurisdiction of the Supreme Court, under the
regulations prescribed by Congress, is extensive, and relates to
questions of fundamental importance. To make clear the
Court's powers in this regard, the cases in which it is permitted
to review the judgments of the lower courts, either on appeals
or writs of error, may be grouped under several heads, according
to the courts whose judgments are under review.
1. Appeals and writs of error may be taken from the District
Courts direct to the Supreme Court in cases involving the Dis-
trict Courts' jurisdiction, — in such cases the question of juris-
diction alone being certified to the Supreme Court for decision ;
from final sentences and decrees in prize cases ; in any case that
involves the construction or application of the federal Constitu-
tion ; in any case in which the constitutionality of any law of
the United States, or the validity or construction of any treaty
made under its authority is drawn in question ; and in any case
in which the constitution or law of a Stale is claimed to be in
contravention of the Constitution of the United States.
2. Appeals and writs of error may be taken from the Circuit
Court of Appeals in any case in which the decision of the lower
court is not made final by law, provided the matter in contro-
versy exceeds one thousand dollars, besides (he costs. In any
case, civil or criminal, in which the decision of the Circuit Court
of Appeals is made final, the Supreme Court may by the proper
writ, upon petition from any party to the suit, order the case
before it f(jr review and determination ; in this, the Court has
JURISDICTION OF THE FEDERAL COURTS 263
the same power it would have if the case were before it on appeal
or writ of error. In any case within its appellate jurisdiction,
as defined by law, the Circuit Court of Appeals may certify
to the Supreme Court any questions of law upon which it desires
the higher court's instruction ; and the Supreme Court may then
give instructions which will be binding upon the lower court, or
call for the whole record of the case and proceed to decide it
just as it would if the matter were before it for review by writ of
error or on appeal.
3. Writ of error may be taken from any State court of last
resort in any case in which is involved the validity of a federal
statute, or treaty or authority exercised under the United States,
and the decision is against such validity ; in any case where is
drawn in question the vaHdity of State laws or of an authority
exercised under them on the ground of their being repugnant
to the Constitution, treaties, or laws of the United States, and
the decision is in favor of their validity ; and in any case
where the decision is against any title, right, privilege, or im-
munity claimed under the Constitution, laws, treaties, or au-
thority of the United States. In these cases the writ of error
has the same effect as if the action complained of had been taken
by a federal court, and the Supreme Court may reverse, modify,
or affirm the judgment of the State court as it sees fit.
4. Appeals may be taken from the Court of Claims to the
Supreme Court, both by the United States, which may appeal
from all adverse judgments, and by the plaintiff, who can appeal
when the amount in controversy exceeds three thousand dollars,
or when his claim has been declared forfeited to the United
States on the charge of fraud.
5. Writs of error or appeal may also be taken from the Court
of Appeals of the District of Columbia, the supreme courts of
the Territories, Alaska and Hawaii, and from the courts of last
resort in Porto Rico and the Philippine Islands.
6. Appellate jurisdiction is given to the Supreme Court,
under conditions prescribed l)y law, in controversies arising in
bankruptcy proceedings.
This brief statement of the conditions under which the judg-
ments of lower courts may be reviewed, though incomplete as
to details, makes plain the wide extent of the Supreme Court's
appellate jurisdiction. With these facts in mind it is easy to
264 CO^IPARATIVE FREE GOVERN^IEXT
understand why the work of the Court each year is so heavy.
This is especially the case when the number of courts from which
appeals may be taken is recalled, — nine Circuit Courts of
Appeals, about eighty District Courts, forty-eight State courts,
and in addition the various special courts and the courts of the
Territories and Dependencies.
II. Next in order comes the jurisdiction of the Circuit Courts
of Appeals as established by Congress. These courts have no
original jurisdiction. Their appellate power, though hmited,
is extensive and in a good many important cases is final.
The essential provisions of the law may be given in a few words.
It is stated that the Circuit Courts of Appeals shall have power
to review by appeal or by writ of error the final decisions of the
District Courts in all cases except those in which appeals may be
taken direct from the District Court to the Supreme Court.
The cases in which this direct appeal may be made have already
been given. It is provided, also, that except when the Supreme
Court shall be asked for instructions or shall order a case to be
sent up by the Circuit Court of Appeals for determination by
the high court, as previously outhned, " the judgments and
decrees of the Circuit Court of Appeals shall be final in all cases
in which the jurisdiction is dependent entirely upon the opposite
parties to the suit or controversy being aliens and citizens of
the United States, or citizens of different States; also in all
cases arising under the patent laws, under the copyright laws,
under the revenue laws, and under the criminal laws, and in
admiralty cases." It is further provided that under the condi-
tions prescribed by law, this court may entertain appeals in
bankruptcy cases and from the decrees or orders of the District
Courts in certain ecjuity proceedings, such as the a])pointmcnt
of receivers and the granting or dissolving of injunctions.
III. The District Court is the court of first instance, and as
such has jurisdiction ' over an exceedingly large number of
cases. In fact, almost all of the cases recognized as coming
within the scope of the federal judiciary arc heard in the District
Courts. An entire chapter of the Judicial Code is flevoted to
its jurisdiction. In this there are listed, in detail, twenty-five
kinds or groups of cases that may come before the District
Court. Only the more im])orlaiit of these can be given here.
'Ihe District Court is given original jurisdiction of all crimes
JURISDICTION OF THE FEDERAL COURTS 265
and offenses cognizable under federal laws ; of all civil or equity
cases brought by the United States ; of cases between citizens
of different States ; of cases arising under the Constitution, laws,
or treaties of the United States ; of all admiralty cases, seizures,
and prizes ; of cases arising under the postal lavv^s ; of suits under
the patent, copyright, and trade-mark laws ; of suits for viola-
tion of interstate commerce laws; of suits relating to civil
rights ; of suits against consuls ; of all proceedings in bank-
ruptcy ; of suits under the immigration and contract labor laws ;
of all suits against trusts, monopolies, and combinations in
restraint of trade.
This list of cases is not exhaustive, but it is sufficiently com-
plete to indicate the great importance of the District Courts
and to suggest the vast amount of litigation that comes before
them. Special attention, perhaps, should be called to their
criminal jurisdiction. This has always been considered the
most important part of their jurisdiction, but it is greater now
than it used to be. The jurisdiction which formerly belonged
to the Circuit Courts was, upon their abolition, transferred to
the District Courts. The crimes of which these courts may take
cognizance under federal law are, of course, wholly statutory in
character. There is no federal common law jurisdiction. For
an act to be a crime against the United States it must be de-
clared to be such by law of Congress or by constitutional pro-
vision. Among the federal laws under which criminal proceed-
ings are especially frequent are the internal revenue, tariff,
and postal laws, and laws relating to industrial combinations,
public lands, and national banks. As the Nation has developed
the criminal jurisdiction of its courts has become wider.
REFERENCES
(For References, see Chap. XXI.)
CHAPTER XXI
The Courts and Legislation
Of the various powers possessed by the federal judiciary, one
stands out with striking clearness as preeminent. This is the
power of the Supreme Court to declare acts of both the State
legislatures and of the Congress unconstitutional. The tremen-
dous significance of this prerogative is manifest. It gives to
the Supreme Court of the United States a position that is really
unique among the judicial tribunals of the world. In none of the
countries of Europe is there a court with authority to set aside
an act of the legislature on the ground that it is not in harmony
with the constitution. It is true that in some of the newer
states in other parts of the world, this American practice has
been adopted to a greater or less degree.^ Nevertheless, the
principle back, of it is a singularly American principle ; it repre-
sents one of America's most vital contributions to the science of
government. Perhaps no other feature of the government of
the United States has excited such deep interest among students
of politics. It is universally admitted to be of profound im-
portance.
The peculiar position which the Supreme Court holds in
American government, as a result of this power, is also a matter
of lively interest and, to a good many jKTSons, one of grave
concern. By the theory of the Constitution, the judiciary, of
which the Supreme Court is the head, is a coordinate branch of
the government. It is neither inferior nor superior to the legis-
lative and executive departments. Yet it is, in fact, the au-
thoritative judge of their jjowers, as it is also of its own. Euro-
pean courts have no such sui)r('mc fuiK 1 ion as this. In England,
for example, the courts are bound l)y any act of Parliament,
'ihey cannot f|uestion the Parliament's authority. ^ If the
interpretation of a law by the English judiciary is not what
' Rclow, I). 547. ' Below, p. ,S()8.
200
THE COURTS AND LEGISLATION 267
Parliament intended or desires, it may alter the law as it sees
fit ; the courts will be bound by what it does. But in the United
States, the power of Congress is what the Supreme Court says
it is. The validity of any act may be passed upon by the Court.
This will not be done, of course, unless a '' case " arises in which
the constitutionality of the act is drawn in question. The Su-
preme Court on its own initiative will not call in question a legis-
lative enactment, but it will not hesitate to nullify any act
that is brought before it in the prescribed manner, when it is
convinced that the act is repugnant to the Constitution, whose
final, authoritative interpreter the Supreme Court is.
Constitution Makers and the Courts. — It is a fact of great
interest that the Constitution does not expressly confer upon
the Supreme Court this remarkable power. There is in it no
reference whatever to the constitutionality of laws. As pre-
viously indicated, the language of the Constitution is somewhat
vague with respect to the judiciary. The precise intention of the
constitution makers is not clear. That some of this vagueness
was intentional is beyond dispute. At least some of the men
who helped frame the Constitution were unwilling to have the
powers of the judiciary minutely defined. In this connection
Professor Beard quotes Gouverneur Morris, one of the leaders
of the convention, who, in speaking of the language of the
Constitution, used these words : " Having rejected redundant
and equivocal terms, I believed it as clear as our language
would permit, excepting, nevertheless, a part of what relates to
the judiciary. On that subject conflicting opinions had been
maintained with so much professional astuteness that it became
necessary to select phrases which expressing my own notions
would not alarm others nor shock their self-love." ^ This
statement makes it clear that some members of the convention
had in mind judicial activity which is not specifically men-
tioned in the Constitution.
Opinions differ, however, whether there was an intention to
give the federal judiciary power to pass upon the constitu-
1 Beard, "American Government and Politics," New and Revised Edition, p. 307.
For an interesting study of the intentions of the constitution makers with respect
to the power of the Supreme Court to pass upon the constitutionality of statutes,
see Professor Beard's "The Supreme Court and the constitution." An equally
interesting article in answer to Professor Beard's argument, by Horace A. Davis, is
given in The American Political Science Reviru), Vol. VII, p. 541 (November, 1913).
268 COxMPARATlVE FREE GOVERNMENT
tionality of laws. It is held by some that the exercise of this
power is " usurpation " on the part of the courts.' By others it
is asserted that the courts are clearly within their constitutional
rights. The controversy over the original intention can never
be settled, but that some of the men who helped to draft the
Constitution expected the courts to exercise the power in ques-
tion cannot be doubted. Alexander Hamilton, for instance,
brought out this fact clearly in his arguments for the ratifica-
tion of the Constitution. In The Federalist he discusses the
question at some length and asserts squarely that the limitations
of the Constitution upon legislative authority can be preserved
only through the courts of justice, " whose duty it must be to
declare all acts contrary to the manifest tenor of the Constitu-
tion void." 2 His views are clearly stated in these words:
" There is no position which depends on clearer principles, than
that every act of delegated authority, contrary to the tenor of
the commission under which it is exercised, is void. No legisla-
tive act, therefore, contrary to the constitution, can be valid.
To deny this would be to affirm, that the deputy is greater than
his principal ; that the servant is above his master ; that the
representatives of the people are superior to the people them-
selves ; that men acting by virtue of powers, may do not only
what their powers do not authorize, but what they forbid. . . .
The interpretation of the laws is the proper and peculiar province
of the courts. A constitution is, in fact, and must be regarded
by the judges as a fundamental law. It must therefore belong
to them to ascertain its meaning, as well as the meaning of any
j)articular act proceeding from the legislative body. If there
should happen to be an irreconcilable variance between the two,
that which has the superior obligation and validity ought, of
course, to be preferred ; in other words the constitution ought
to be preferred to the statute, the intention of the i)eo])k' to the
intention of their agents. . . . Nor does the conclusion by any
means suppose a superiority of the judicial lo the legislative
power. It only supposes that the power of the people is superior
to both; and that where the will of the Irgislature declared in
its statutes, stands in opposition to that of the |)coplc declared
iJuflKC Walter Clark in The Independent, Sept. 20, IQ07; Political Science
Quarterly, Vol. XXVI, p. 238. Other magazine articles may readily be found.
» .No. 78.
THE COURTS AND LEGISLATION 269
in the constitution, the judges ought to be governed by the
latter rather than the former. They ought to regulate their
decisions by the fundamental laws, rather than by those which
are not fundamental."
The opinion of Hamilton is quoted here at such length for the
reason that it not only shows what was intended and publicly
discussed by one of the ablest members of the constitutional con-
vention, but also gives in essence the argument upon which the
Supreme Court based the exercise of its power in the beginning
and by which it has been constantly justified. Moreover, to
give expression to the views of a man who was so influential as
Hamilton is all the more permissible inasmuch as the power of
the courts, and particularly this power to nullify legislative acts,
has become an issue in the practical politics of the present day.
From one standpoint it is a matter of little or no importance
what the framers of the Constitution intended ; the fact is that
the Supreme Court for more than a century has claimed and
exercised the right to set aside legislative acts which it considered
to be contrary to the Constitution. And the wisdom of permit-
ting the Court to exercise the power now and in the future can-
not rationally depend upon the original intention. However,
the popular judgment as to the wisdom of the Court's possessing
this power may be materially influenced by the manner in which
it was acquired. If the general public were convinced that the
Supreme Court has usurped this great power, its judgment
would certainly be different from what it would be if the opinion
prevailed that the Court was clearly acting within its constitu-
tional rights. So the question of whether or not the Court was
intended to have this power becomes one of some practical sig-
nificance.
Supreme Court's Power to Nullify Legislation. — As stated
before, the Supreme Court's power to nullify legislation is not
the result of an express grant in the Constitution. It is an
implied power, derived by " necessary implication." The case
in which the Supreme Court asserted the power and developed
the principles on which it is based, is the famous case of Marbury
V. Madison.^ The opinion in this case, given by Chief Justice
Marshall, is one of the most important that has ever been handed
down. The position taken by the Court is somewhat similar to
1 I Cranch 137 (1803).
270 COMPARATIVE FREE GOVERNMENT
that of Hamilton. It asserts that the basic fact on which the
American government rests is the original right of the people to
establish whatever kind of government they think will serve
them best. The principles thus set up are deemed fundamental.
Since they proceed from the supreme authority, which can
seldom act, they are intended to be permanent. The Constitu-
tion embodies these principles. The will of the people, through
the Constitution, organizes the government and assigns to
each department its particular powers. In addition to this,
limitations may be set for each department which are not to be
disregarded. The United States is a government of this kind.
The powers of the legislature are limited, and that the limita-
tions may not be mistaken or forgotten, they are written in the
Constitution.
This Constitution either controls any legislative act that is
repugnant to it, or any ordinary legislative act may work a
change in the Constitution. There is no middle ground be-
tween these two alternatives. The Constitution is either the
supreme law, unchangeable by ordinary means, or it is on the
same plane with ordinary acts and may be changed whenever
the legislature wishes to change it. But it was clearly the in-
tention of the people to make the Constitution the fundamental
and paramount law of the land, and therefore an act of the legis-
lature repugnant to the Constitution must be void. It is the
function of the judiciary to say what the law is, both the funda-
mental law and the act of the legislature. In the words of
Marshall : " So if a law be in opposition to the Constitution ;
if both the law and the Constitution apply to a particular case,
so that the court must either decide that case conformably to
the law, disregarding the Constitution ; or conformably to the
Constitution, disregarding the law; the court must determine
which of these conflicting rules governs the case. This is of
the very essence of judicial duty. If, then, the courts are to
regard the Constitution, and the Constitution is superior to
any ordinary act of the legislature, the Constitution, and not
such ordinary act, must govern the case to which they both
apply." Moreover, the judges have taken a solemn oath to
sup[)()rt the Constitution, and they would fail in this and break
faith with the [)eoplc, if they should give effect to a law that is
not in harmony with it.
THE COURTS AND LEGISLATION 27 1
The reasoning of the Court, thus briefly outlined, still stands ;
it has not been modified by later decisions. However, it is not
free from criticism. Many able expositors of the Constitution
believe that it is inconclusive. For example, the solemn oath
to support the Constitution, of which the Court makes so much,
of itself does not single out the judiciary as the only department
that might pass upon the constitutionality of laws. The Presi-
dent takes an equally solemn oath, yet it is not asserted by any
one that this function therefore belongs to him. Neither does it
necessarily belong to the courts merely because of the oath.
That the Constitution should be maintained supreme is not
questioned ; the criticism is directed to the contention that the
judiciary is a sort of divinely ordained agency to which alone
could the power of testing the constitutionality of laws be in-
trusted. Even the expediency of having the courts exercise
this power is not doubted by many who question the soundness
of the logic upon which the Supreme Court rests its authority.
Professor Willoughby states well a matured judgment, held by
many others, when he says : " That organ or body which has
the final power to interpret the Constitution has necessarily
the power to give to that instrument what meaning it will.
It thus becomes, in a sense, supreme over all the other organs of
government. Unless, therefore, the body from whose action
the Constitution itself derived its force is to be resorted to in
every case of doubtful construction (and this, of course, is im-
practicable) the only alternative is to delegate this supreme
power to some one of the permanent organs of government.
But it does not necessarily follow, as the reasoning of Marshall,
Webster, and Kent would seem to indicate, that, as an abstract
proposition, this power must always be possessed by the judici-
ary. Indeed, in all other countries except the United States, this
power is vested in the legislature. These other A\Titten consti-
tutions did not, indeed, exist at the time that Marshall rendered
his opinion, but their i)resent existence shows that under a
written instrument of government it does not necessarily follow
that the courts should have a power to hold void legislative
acts contrary to its provisions." ^ This writer goes on to show
that in his opinion the Supreme Court has authority under the
Constitution to disregard legislative acts which it considers
^Willoughby, "The Constitutional Law of the United States," Vol. I, p. 4.
272 COMPARATIVE FREE GOVERNMENT
unconstitutional. But this power comes from the fact that the
Constitution and the laws of the United States made under its
authority are declared to be the " supreme law of the land "
and that the judicial power is extended to " all cases, in law and
ecjuity, arising under the Constitution." Judge IMarshall
recognized the force of this in his opinion in Marbury v. Madison,
but, it is asserted, he did not make it, as he should have done,
the foundation of his argument. The words of Marshall are
given to show his thought : " The judicial power of the United
States is extended to all cases arising under the Constitution.
Could it be the intention of those who gave this power, to say
that in using it the Constitution should not be looked into?
That a case arising under the Constitution should be decided
without examining the instrument under which it arises?
This is too extravagant to be maintained." '
Popular Criticism of the Courts. — It is to be noted that the
general criticism of the Court for exercising this power is con-
fined to its use in nullifying acts of Congress ; it does not extend
to the setting aside of State laws because they are inconsistent
with the federal Constitution. The latter is conceded by al-
most every one to be a proper function of the Court. The per-
petuity of the Union is dependent upon a full observance of the
limitations imposed on the States by the Constitution ; and
whether or not these limitations are observed must be deter-
mined by national authority. In no other way could the
national supremacy in its own field be maintained. The nullify-
ing of State statutes by a State's own judiciary, on the ground
that they are not in harmony with the State constitution, is a
difTercnt matter. The federal courts have nothing to do with
this. The widesjiread dissatisfaction over the voiding of legis-
lative acts by the courts is largely due to the action of the State
courts. .'Mlhough a discussion of the State judiciary does not
properly belong here and is given in a later chapter, it may be
said that this dissatisfaction has grown lapidly in rtcent years,
both in extent and intensity, and a strong demand has sprung up
in many of the States for thoroughgoing court reform. The
recall of judges by popular vote, already provided for in the
constitutions of some of the States, the recall of judicial decisions,
a proposed reform which has become an issue in practical politics,
' W'illoughby, " The Constitutional Law of the Uniti-d States," \'ol. I, p. 6.
THE COURTS AND LEGISLATION 273
and the vast amount of criticism of the courts found in magazines
and books of recent years, all give evidence of the awakening
that is taking place among the people with respect to the judi-
ciary and its functions. The movement for a greater democracy,
which is getting well under way in the United States, will not
overlook the courts. The position they hold in America is too
central, too political, for them to be ignored. They must be
the servants, not the masters of the people. Although, as stated
before, the shortcomings of the State courts have been chiefly
in mind in the agitation for reform, the national judiciary has
come in for its share of adverse criticism. The belief is wide-
spread that the federal courts have been too much under the
influence of the big business interests of the country and that
they have often failed to dispense even-handed justice. The
will of the people has sometimes been thwarted by their deci-
sions and popular reforms blocked. The inevitable result of
this is to bring the courts into the field of partisan political dis-
cussion and to arouse a demand for the curtailment of judicial
powers.
Rules Governing the Courts. — The attitude of the federal
courts in passing upon the constitutionality of laws should be
kept clearly in mind. Unless this is done, unfair judgment of
them is probable. Their position is definitely stated in the
rules of construction which have been set up for their guidance
in constitutional cases. These rules are not required by the
Constitution or by law, but are established by the courts volun-
tarily and are strictly adhered to. A somewhat full statement of
the more important of these principles of construction is well
worth while.^
1. Courts of first instance will not hold an act unconstitutional
except in clear cases, but will leave this to the final judgment of
the Supreme Court. The lower courts are bound by the prior
decisions of the higher courts as to the vahdity of an act, even
though new arguments against it are advanced. The presump-
tion is that the superior courts considered all phases of the
question.
2. The regular rule of the Supreme Court is that no law will
be held void except by majority of the full bench.
' The formulation of these rules is based on that of Willoughby in his " Constitu-
tional Law of the United States," Vol. I, p. 12.
T
2 74 COMPARATIVE FREE GOVERNMENT
3. The courts will not pass on the constitutionality of laws
except in suits brought before them in the manner prescribed by-
law by parties whose material interests are involved. They
will not of their own accord raise the question of constitutional-
ity. That must be a point in controversy in the suit. Neither
will the Supreme Court express opinions as to the constitutional-
ity of proposed acts upon request.
4. The Supreme Court will not deny vaUdity to an act of
Congress unless that is absolutely necessary to decide the case
before it. It will not only not go out of its way to declare the
law invalid, but will go as far as possible to uphold the law.
5. If it is possible without doing too great violence to the
language used in the statute, it will be construed so as to hold
the law constitutional. The presumption of the Court is al-
ways that Congress intended to act, and did act, within its
powers, until the contrary is affirmatively shown. On the other
hand, if the purpose of the act is clearly unconstitutional, the
Court will not make a strained or arbitrary interpretation of
the language used in order to give validity to the law.
6. When only a part of a law is held to be unconstitutional,
the Court will not permit this to invalidate the entire act, if
the invalid part can be separated from the remainder so as to
leave the latter complete, and the Court is convinced that Con-
gress or the legislature would have enacted the remaining portion
without that whicli is set aside. If the Court feels that the part
held void is essential to the accomplishment of the legislative
intent, the whole act will be nullified.
These arc in substance the leading rules which govern the
courts in dealing with the question of constitutionality. In
aridition, it is to be emphasized that the courts are not concerned
with the motives that actuated the legislature in passing the
law whose validity is in dispute, or with the wisdom or ex-
pediency of its enactment. It is also to be emphasized that
the presumption, as before stated, is always in favor of the con-
stitutionality of an act of Congress. For this presumption
to be overthrown, it must be shown positively to the Court's
satisfaction that Congress has exceeded its powers. In the
words of the Court : " A rjccent respect for a coordinate branch
of the federal government demands that the judiciary should
presume, until the contrary is clearly shown, that there has been
THE COURTS AND LEGISLATION 275
no transgression of power by Congress, all the members of which
act under the obligation of an oath of fidelity to the Constitu-
tion." 1
Peculiar Function of American Courts. — It is in the action
of the courts in setting aside unconstitutional legislative acts
that the one unique function of the American judiciary finds its
most striking expression. This function is fundamental and is
peculiar to the American system. It goes to the very root of
constitutional government in the United States and differen-
tiates it sharply and fundamentally from those of other countries.
This underlying function of the courts is to protect the individual
citizen in the enjoyment of his rights against the government,
which have been created by the fundamental law, and at the same
time preserve the powers of government in all of their fullness.
It is the function of the balance-wheel, as President Wilson
describes it. In no other country is the constitutional system
balanced in this way. In the courts of no other country may the
rights of individuals be asserted and protected against all govern-
mental interference and the powers of government in all its
departments be authoritatively defined. In no other country
is the judiciary " meant to maintain that nice adjustment be-
tween individual rights and governmental powers which con-
stitutes poUtical liberty." ^ In the courts of other nations, in-
dividuals, as against one another, may have their rights ad-
judicated and fully protected ; but as against the government
this may not be done.^ This is a fact whose vital significance
must not be overlooked in the comparative study of free govern-
ments. That the action of government may be blocked by an
individual citizen, through an appeal to the courts, is a stupen-
dous fact.
President Wilson puts the matter this way : " Constitutional
government exists in its completeness and full reahty only
when the individual, only when every individual, is regarded
as a partner of the government in the conduct of the nation's
life. The citizen is not individually represented in any as-
sembly or in any regularly constituted part of the government
itself. He cannot, except in the most extraordinary cases and
^ Knox V. Lee, 12 Wallace 457 (1871).
^Wilson, " Constitutional Government in the United States," p. 143.
' Below, Chap. XLIX.
276 COMPARATIVE FREE GOVERNMENT
with the utmost difficulty, bring his individual private affairs
to the attention of Congress or of his state legislature, to
the attention of the President of the United states or of the
executive officer of his state ; he would lind himself balked of
relief if he did by the laws under which they act and exercise
their clearly specified powers. It is only in the courts that men
are individuals in respect of their rights. Only in them can
the individual citizen set up his private right and interest against
the government by an appeal to the fundamental understandings
upon which the government rests. In no other gov^ernment
but our own can he set them up even there against the govern-
ment. He can everywhere set them up against other individ-
uals who would invade his rights or who have imposed upon
him, but not against the government. The government under
every other constitutional system but our own is sovereign,
unquestionable, to be restrained not by the courts, but only by
public opinion, only by the opinion of the nation acting through
the representative chamber. We alone have given our courts
power to restrain the government under which they themselves
act and from which they themselves derive their authority." '
That this is a profoundly significant principle of government
needs no proof. It accords to the citizen of the United States
a prerogative such as the citizen of no other country enjoys, —
that of holding in check the various agencies of government if
they seek to invade the inviolable sphere of liberty which is
recognized as his by the Constitution. The manner in which
this is done is most spectacularly shown by the judicial
nullification of legislative acts, — an action which, as has been
I)ointed out, the courts never take except upon the initiative
of an individual or of a group of individuals whose interests arc
identical.
Yet, there is gravx' criticism of the {principle among Americans.
The opinion prevails among a good many ])ers()iis, and is be-
coming more prevalent, that the liberty of the citizen is l)cing
jeopardized by the exercise of the very power, which, under the
principle stated, is designed for his protection. The danger, it is
said, comes not from the executive or legislative (iei)artments,
but from the courts themselves. It is by the courts that the
will of the people, as cxpressi-d l)y the legislature, is frequently
•Wilson, " ronstituliiiiial ('lOVcriuiiLiil in the United States," pp. 143-144.
THE COURTS AND LEGISLATION 277
defeated and the pathway to important poHtical and economic
reforms blocked. Through their power to interpret the laws
and the Constitution, the function of the legislature is invaded
by the courts, and judicial legislation takes place. This is
contrary not only to the spirit and letter of the Constitution,
but also to the spirit of genuine free government. The legisla-
tive function, that of determining national pohcies, must either
be in the hands of the people themselves or of direct representa-
tives of the people who are chosen for this particular purpose
and who may be held personally accountable for their actions.
To permit the judges, who are appointive officers and therefore
are without direct responsibility to the people, to have it in
their power to say whether or not the public will can be made
effective in the form of law, is to permit a form of oligarchy to
govern in a nation where the people are by theory supposed to
rule themselves. Curtailment of judicial power, particularly
with respect to the constitutionaUty of laws, is therefore neces-
sary in the interest not only of individual liberty, but of free
government.
Such, in brief, is the attitude of a great many Americans to-
ward the courts. They are zealous in their desire for a genuinely
popular government, and they do not want it possible for five
men, a majority of the Supreme Court, to stand in the way of
vital reforms demanded by the majority opinion in a nation of a
hundred millions of people, and embodied in law by the people's
own representatives in the legislative and executive departments.
The same attitude is held toward the courts of the States as
toward those of the Nation, except that the feeling is more
intense in the case of the former than of the latter. That im-
portant changes will be made in some of the State judicial
systems is apparently inevitable. How far this movement will
go and to what extent the federal judiciary may be involved
before the end is reached, the future alone can tell. Whether
wisely or unwisely, whether promoting or retarding real democ-
racy, whether helpful or hurtful to true liberty, the demand is
put forward for a limitation of judicial power. The courts are
being made an issue in contentious politics.
The Courts and Contentious Politics. — This in itself is an
interesting and significant fact. The courts are supposed to be
independent, impartial, non-partisan tribunals which lie outside
278 COMPARATIVE FREE GOVERNMENT
the realm of partisan, controversial politics. It is a rule of
the courts to have nothing to do with pohtical questions and
to confine themselves to the strictly judicial function of inter-
preting and applying the law to the legal controversies that come
before them. This rule is followed with marked consistency.
Yet the decisions of the courts again and again are important
factors in the struggles between the poUtical parties, both in
and out of Congress. This is due to the fact that they exercise
their power, when in their judgment there is need, to hold void
legislative acts which involve partisan issues. In doing this
the courts are performing their strict duty as courts of law,
yet their actions are profoundly political or controversial in
their consequences. When the Supreme Court, by declaring
an act of Congress unconstitutional, makes it impossible for a
great national poUcy, which is strongly desired by a majority of
the people, to be carried out, it is inevitable that the Court's
action will be made the subject of partisan debate and strife,
no matter how coldly judicial the court may be, how sincerely
it may strive to avoid all political entanglements, and how
strictly it confines itself to questions of law. Upon political
questions, as such, the Court will refuse to pass, but legal ques-
tions, properly presented to it, cannot be avoided, however
serious the political consequences may be. For instance, in a
great case involving the validity of State laws providing for the
initiative and referendum, — the point at issue being whether
or not such laws contravene the principle of republicanism, —
the Supreme Court evaded a definite decision on the ground that
the question of what constitutes a republican form of govern-
ment, which is guaranteed to each of the States by the Consti-
tution, is a political question which it is the function of Congress
and not of the Supreme Court to determine. Here was a case
in which there was a keen pul)lic interest and which involved
the interpretation of a conslilulional clause, yet the Court
refuscfl to give an o])inion because it considered the issue politi-
cal. But in another great case involving the validity of an act
of Congress establishing an income tax, — a law which was of
the very essence of political controversy, — the Court did not
hesitate to declare the act void, in this instance the issue was a
question of law and the Court decided it, with complete indif-
ference to the political effects of the decision. The result was
THE COURTS AND LEGISLATION 279
bitter public criticism and an attack upon the Court in the
national platform of the Democratic party. This income tax
case of 1S95, decided by a five-to-four vote, is a striking example
of how a great national poHcy demanded by public opinion may
be defeated through the judicial power. And it is also an ex-
cellent illustration of the fact that it is impossible for the Supreme
Court, deciding as it must sometimes cases involving partisan
issues, to keep free from contentious politics. It rivals in these
respects, indeed, the famous Dred Scott decision of 1857,
which Abraham Lincoln did not hesitate to criticize and con-
demn.
In another way, also, and through the use of another power,
the federal courts have at times been forced into the foreground
of public, partisan discussion. This is through the power to
grant injunctions and the great freedom with which the power
has been employed, particularly in connection with labor dis-
putes. Most of these troubles involve citizens of different
States, and so application to the federal courts for relief is
always possible. Injunctions at times of labor disturbances
have most frequently been sought by employers against the
methods and purposes of organized labor. Many of these have
been granted by the courts, so many, indeed, that workingmen
pretty generally feel that the courts have been on the side of the
employers and justice to the workers has been denied. In view
of the great strength of organized labor in the United States,
the injunction in labor troubles was certain to be made a political
issue, sooner or later. The leading parties have been compelled
to place injunction planks in their platforms looking toward a
restriction of the judicial power. Not only, therefore, has the
issuance of injunctions made the judiciary the center of political
discussions, but it also has caused large numbers of people,
workingmen and their friends, to distrust the courts and to
feel that they are too much under the influence of the big busi-
ness interests of the country ; to believe that the rights of prop-
erty arc held unduly sacred by the judges, and the rights of man,
the rights of the worker, are ignored and abused. That this
belief, whether with cause or not, is widespread and deep-rooted
is one of the profoundly significant facts of American political
life. Its existence makes continued agitation for judicial re-
form, if not its attainment, so much a certainty that the student
28o COMPARATIVE FREE GOVERNMENT
who seeks to comprehend the inner, vital things of American
poUtics must give it careful study. The position of the courts
in the United States is so central, their power so great, and their
service to the Nation in the past so unmistakable, that even a
latent distrust of them by any considerable proportion of the
people becomes a matter of supreme interest. The develop-
ments of American politics from the beginning have been pro-
foundly influenced by the work of the judiciary. Its authority
was never greater than at present, and whether that authority
shall continue to grow still greater or shall be diminished is one
of the problems with which the democracy in America must
struggle.
REFERENCES
Baldwin. The American Judiciary.
Beard. American Government and Politics, Edition 1914, Chap. XV.
Beard. The Supreme Court and the Constitution.
Bryce. The American Commonwealth, Edition 1910, Vol. I, Chaps. XXII,
XXIII, XXIV.
Corwin. The Doctrine of Judicial Review.
The Federalist, Nos. 78 to 83 inclusive.
Haines. The American Doctrine of Judicial Siipremacy.
McClain. Constitutional Law in the United States, Chaps. XXV to XXIX
inclusive.
Reinsch. Readings on American Federal Government, Chap. XI\'.
Smith. The Spirit of American Government, Chap. V.
WiLLOUGHBY. The Constitutional Law of the United States, Vol. II, Chaps.
L, LI, LII.
WiLLOUGHBY. The Supreme Court of the United States.
Wilson. Constitutional Government in the United Slates, Chaj). VI.
Woodburn. The American Republic, Chap. VI.
Young. The New American Government and its Work, Chaj). XV.
CHAPTER XXII
Constitutional Readjustment by Amendment
In every truly constitutional government the question of con-
stitutional readjustment is one of supreme interest. This is
particularly the case where there are written constitutions, which
have a tendency to retard needed changes in government and to
make the existing political order permanent. In the United
States this tendency is especially notable. One of the chief
weaknesses of the American Constitution is its rigidity, its fixed
form, its unwillingness, so to speak, to change itself, or be
changed, in accord with the constantly developing and enlarg-
ing pohtical life it controls. It tends to make poUtics static, to
keep things as they are. Yet pohtics, in large part, is elemen-
tally dynamic. It is in continuous motion, and to stop this is to
kill the state itself. The development of civilization everywhere
means greater complexity in social and economic relationships,
and, therefore, greater governmental activity. The functions of
government multiply as democracy becomes more real. It is
axiomatic that governmental activities must change to meet the
needs of changed social, economic, and political conditions.
This inevitably means constitutional readjustments, sooner
or later. The constitution of a living state is itself a living thing
and must accommodate itself to new problems. If it cannot do
this, so much the worse for it. If the changes that are needed
can be brought about in the formal, prescribed constitutional
manner, all well and good ; if they cannot be attained in this
way, they will be made in some other. The life and work of
a state cannot stop at the commands of a written constitution.
Yet the tendency is strong with great numbers of people to
oppose changes in the fundamental law. The wisdom of the
past is to be exalted and that of the present to be distrusted.
The constitution of the fathers becomes a sacred thing, to be
preserved inviolate. To lay hands on this constitution for the
281
282 COMPARATIVE FREE GOVERNMENT
purpose of changing it is not only profanation, but subversion of
the governmental structure. To such persons the most effective
argument against any proposed policy is the assertion that it is
unconstitutional. This tendency and this attitude of mind
have been particularly prevalent in the United States, where
the written Constitution has been held up as an object of venera-
tion and as the embodiment of the highest wisdom of which
the American people are capable. This has been due to different
reasons, — to the inherent tendency of many persons to oppose
changes of any kind; to the almost universal disposition to
idolize the great leaders who framed the Constitution and set
up the national government ; and, it must be added, to the
assiduous efforts of those who profit financially and politically
by the existing order to cultivate among the people a behef in
the sanctity of the Constitution and an attitude of reverence for
its provisions. The result has been an unwillingness to modify
the Constitution which is hard for the outsider to understand ;
for nowhere else is a written constitution looked upon in quite
the same way.
Singularly, however, yet naturally, this was not the attitude
toward the Constitution of the men who framed it. To them
it was far from sacred, far from ideal. It was probably not
satisfactory to a single one of them, and it was submitted for
ratification with misgiving. Some of them had little hope of
its proving permanently successful. It is true that changes in
it were looked forward to with some anxiety, but this was not
because they considered the Constitution perfect, but because
they feared that it might be made even more imperfect through
alteration. Men of the clear vision and deep knowledge of
Washington, Hamilton, and Madison could not be misled as
to the imperfections of the instrument drafted under such
trying circumstances and in the face of such conflicting interests
and theories as confronted them and their associates in the con-
stitutional convention. It was never their thought that the
Constitution would long continue in force without change. The
fact that the process of amendment was made diflicult and not
easy does not indicate that they looked upon the Constitution
as incapable of improvement. As suggested, it indicated rather
that they thought it might be made worse, and therefore quick,
carelessly considered amendments were made impossible.
CONSTITUTIONAL READJUSTMENT BY AMENDMENT 283
But that it should never be altered at all, regardless of defects
which experience might reveal, was certainly far from their
mind. Their position is fairly stated by Madison : " That
useful alterations v/ill be suggested by experience, could not but
be foreseen. It was requisite, therefore, that a mode for intro-
ducing them should be provided. The mode preferred by the
convention seems to be stamped with every mark of propriety.
It guards equally against that extreme facihty, which would
render the Constitution too mutable; and that extreme dif-
ficulty, which might perpetuate its discovered faults. It
moreover equally enables the General and the State govern-
ments, to originate the amendment of errors, as they may be
pointed out by the experience on one side or on the other." ^
The Amendment Process. — The prescribed method of
amendment, given in the Constitution, is as follows : " The
Congress, whenever two-thirds of both Houses shall deem it
necessary, shall propose amendments to this constitution, or,
on the appHcation of the legislatures of two-thirds of the several
States, shall call a convention for proposing amendments, which,
in either case, shall be valid to all intents and purposes as parts
of this constitution, when ratified by the legislatures of three-
fourths of the several States, or by conventions in three-fourths
thereof, as the one or the other mode of ratification may be
proposed by the Congress ; Provided that no amendment which
may be made prior to the year one thousand eight hundred and
eight shall in any manner affect the first and fourth clauses in
the ninth section of the first article ; and that no State, without
its consent shall be deprived of its equal suffrage in the Senate."
The first exception under the proviso has long been of no
consequence. It was due to the existence of slavery and the
influence of the slave States. The first part of it related to the
importation of slaves, Congress, by the clause referred to in
Article I, being forbidden to prohibit such importation prior
to 1808. The second part of this exception related to the im-
position by Congress of a capitation or other direct tax, this
kind of tax being forbidden unless levied in proportion to the
census which was ordered in a previous section of the consti-
tution. Of course after 1808, amendments concerning either
of these questions were permissible.
' The Federalist, No. 43.
284 COMPARATRE FREE GOVERNMENT
The second exception, that no State, without its own consent,
shall be deprived of its equal representation in the Senate, is
still binding. This means that what is called the " state-
hood " of a State cannot be destroyed without its own consent,
as long as the present Constitution stands. The provision was
clearly inserted at the demand of the small States, some of which
were very much afraid that their powers and place in the Union
would be destroyed through the votes of the larger States.
Madison observes somewhat ponderously that this exception
" was probably meant as a palladium to the residuary sover-
eignty of the States, implied and secured by that principle of
representation in one branch of the legislature ; and was prob-
ably insisted on by the States particularly attached to that
equality." ^ It is an important exception, though, and might
under certain conditions give rise to serious trouble. It clearly
gives to some States a decided advantage over others as far as
voting in the Senate is concerned. Nevada with a population
of 81,875 in 1910 offsets in the Senate the vote of New York
with a population more than one hundred and ten times as
great. New York with a population equal to one tenth of that
of the entire United States has one forty-eighth of the voting
power in the Senate.
It will be seen that the Constitution provides for two methods
of proposing amendments and two methods of ratifying them.
Congress, by a two-thirds vote in each house, may propose
amendments, or the States may take the initiative. In the
latter case, if the legislatures of two thirds of the States demand
it, a convention must be called by Congress for the purpose of
l)roposing amendments. In this. Congress has no option ; it must
arrange for the convention when the necessary number of Slates
have requested it. A convention of this kind has never been
held because appUcation for it has never been m.ulc by a suffi-
cient number of States. In connection with the amendment
j)roviding for popular election of Senators it seemed likely for a
lime that the requisite number of Stales might act, but Congress
fmally submitted an amendment to ihe Slates and a convention
was not necessary. So it happens thai in every instance in
which the Constitution has been amended, the proposal has
come from Congress. It is to be noled, in passing, that the
' TIk' ludrndist, No. .43.
CONSTITUTIONAL READJUSTMENT BY AMENDxMENT 285
two-thirds vote in each house, required by the Constitution,
has been held to mean merely two thirds of the members present
and not two thirds of the entire membership. A " house "
for this purpose is defined to be a " quorum of the membership."
A quorum is all that is necessary to constitute a house for the
transaction of business and a part of the legitimate business of
each house is to propose constitutional amendments.
Of the two methods of ratifying amendments, one is by the
legislatures of the States and the other is by conventions within
the States called for the purpose. In either case three fourths
of the States must give their approval before the amendment is
adopted. Congress is given the right to say which method shall
be employed. Thus far the convention method has not been
used. Each of the amendments adopted has been proposed by
Congress and ratified by the State legislatures. Each State,
when it gives approval to a proposed amendment, certifies
its action to the Secretary of State, in whose office a record
is kept. When a sufficient number of States have acted favor-
ably, official proclamation of the fact is made and the amend-
ment becomes a part of the Constitution. If a State has once
ratified an amendment, it may not rescind its action. That
action is final. But if a State rejects an amendment, it is free
to reconsider its action and vote its approval. The amendment
is open for favorable action until it has been ratified by three
fourths of the States. Then further consideration of it ceases,
as it becomes at once a part of the Constitution, binding upon
all the States alike.
Growth of the Constitution by Amendment. — The extent
to which the Constitution has been altered by formal amend-
ment is slight. In a century and a quarter, only seventeen
amendments have been adopted. Of these, the first ten, known
as the Bill of Rights, were proposed by the first Congress in
1789, only a few months after the government was set in motion,
and may properly be looked upon as parts of the original Con-
stitution. They embody guaranties of certain fundamental
rights, such as freedom of speech, of the press, of religion, and
of peaceable assemblage ; right of trial by jury ; protection
against unreasonable searches and seizures, and against exces-
sive and cruel punishments ; protection against depriving a
person of life, Hbcrty, or property without due process of law.
286 COMPAR/VTIVE FREE GOVERNMENT
Many other fundamental guaranties are included. Some of
the States demanded amendments of this nature before they
would give their approval to the Constitution. In fact, it
seems clear from the records that ratification by the necessary
nine States would never have been obtained if the understanding
had not prevailed that amendments would immediately be
submitted to the States. On September 25, 17S9, therefore,
Congress proposed the first ten amendments, which were ratified
by the States during the next two years and became parts of
the Constitution in 1791.^
The eleventh and twelfth amendments may also fairly be
looked upon as parts of the original Constitution ; they are only
a little less directly connected with it than is the Bill of Rights.
They, like those that preceded, were made necessary by the
difficult task of setting up and starting in motion a new national
government. The eleventh amendment was proposed in 1794
and became a part of the fundamental law in 1798. It is the
one which makes it impossible for a suit to be brought against
a State by the citizens of another State or by citizens or subjects
of a foreign state. The circumstances of its adoption have
already been given.- The twelfth amendment was proposed
by Congress in 1803 and was declared ratified the following year.
This amendment provided for a change in the method of voting
to be observed by the presidential electors. As explained in
a previous chapter, the original Constitution provided that
the electors should vote for two men, and the one receiving the
highest numlier of votes should be President, and the one having
the next highest vote should be Vice President, provided, of
course, each had a majority of the whole number of electors.^
This plan gave no trouble until political parties sprang up and
the presidential election became a real party contest. Then,
since the winning party wished to control both the presidency
and the vice presidency, the full vote of its electors was cast
for two men as authorized by the Constitution, with the result
that they had the same vote and neither could be declared
elected as President. This happencfl in 1800 in the case of
Jefferson and liurr, ihc Democrat i(-i\(i)ul)lican candidates,
anrl Ihc final choice was thrown into the House of Representa-
' 'Iwi^lvu amenflmcnts, in fact, were proposed by Congress, but two of tlicm were
rejected by the States. ' Above, p. 256. ^ Above, Chap. V.
CONSTITUTIONAL READJUSTMENT BY AMENDMENT 287
tives. It was evident at once that the electoral college plan, as
originally devised, had broken down and that unless the Con-
stitution were modified, the election of a President would, in
each instance, very probably devolve upon the House of Repre-
sentatives, — an outcome which was violently contrary to the
intention of the Constitution. A change was therefore imper-
ative and the twelfth amendment was the result. Under its pro-
visions the electors cast separate ballots for President and Vice-
President, so that all possibility of a situation such as occurred
in 1800 is eliminated. As suggested, this amendment, like the
eleventh, was necessary in order to get the government running
smoothly. It involved no fundamental change in the consti-
tutional system, but was concerned only with a detail of pro-
cedure on the part of presidential electors.
From 1S04 until 1865 no change was made in the Constitution,
although many suggestions were offered and many resolutions
proposing amendments were introduced into Congress. In the
latter year mentioned the thirteenth amendment, abolishing
slavery in the United States, was proposed and ratified. This
was followed by the fourteenth in 1868, which conferred citizen-
ship upon negroes and provided for other things made necessary
by the abolition of slavery and by the events of the Civil War.
The fifteenth amendment was adopted two years later, in 1870,
providing that the right of citizens of the United States to vote
shall not be denied or abridged on account of race, color, or
previous condition of servitude. These three amendments
were distinctly " war amendments," growing out of the great
Civil War struggle and the abolition of slavery. They were
the result of thoroughly abnormal conditions. Their ratifi-
cation, in fact, was forced upon some of the States. Their
adoption can in no way be looked upon as a result of the insistent
pressure of public opinion such as characterizes free governments.
Moreover, like those that preceded, they involved no changes
in the structure of the governmental s>-stem, although they
are of the highest importance and have brought the Nation
face to face with problems of the gravest nature, which are yet
clamoring for solution.
Following the adoption of the fifteenth amendment, a period
of forty-three years elapsed before the Constitution was again
formally altered. On February 25, 1913, after a long period
288 COMPAR.\TTVE FREE GOVERNMENT
of agitation, the sixteenth amendment authorizing Congress to
levy income taxes became operative. This change was the
outgrowth of the decision of the Supreme Court in 1895, de-
claring unconstitutional the income tax law of the preceding
year. The position of the Court was that the provision of the
Constitution forbidding Congress to levy direct taxes except
when apportioned among the States according to their popu-
lations, applied to incomes from real and personal property.
The question of a tax of this kind became an issue in party
politics, and public opinion finally forced Congress to submit
to the States an amendment making it constitutional. Accord-
ingly, in 1909, a resolution finally passed both houses providing
that Congress shall have power " to lay and collect taxes on in-
comes, from whatever source derived, without apportionment
among the several States and without regard to any census or
enumeration." After almost four years the amendment was
ratified by three fourths of the States and was declared to be in
force.
In the year 1913, also, the seventeenth amendment was
added. This provides for the so-called popular or direct elec-
tion of United States Senators', in place of election by the
State legislatures. No other proposed change in the Constitu-
tion has been the cause of so much discussion or has been under
consideration for so long a time as the one embodied in this
amendment. More than seventy-five years prior to its adop-
tion, an amendment of this character was called to the atten-
tion of Congress. Repeatedly thereafter, particularly in the
last thirty or forty years, the suggestion was renewed and resolu-
tions were introduced into Congress. Twenty years before its
final adoi)tion an amendment of the kind received the necessary
two-thirds vote in the House of Representatives, but was re-
jected by the Senate. At other times in later years the same
thing occurred, the Senate standing in the way of the reform,
notwithstanding an overwhelming i)opular demand for it.
Party platforms declared for it; more than two thirds of the
State legislatures in(l()rse<l it by resolution, many of them asking
Congress to call a c(jnvention as provided for in the Constitution ;
and everywhere it was discussed and urged upon Congress.
In 191 2 at least twenty-nine of the Slates sought by various
kinds of primary election laws to attain popular control o\er
CONSTITUTIONAL READJUSTMENT BY AMENDMENT 289
senatorial elections by providing for direct nomination of
candidates. 1 Finally, the Senate was forced to yield and in
191 1 passed an amendment resolution. The two houses did
not agree at first, however, as to the content of the amendment,
and it was not until 191 2 that final action was taken, and the
amendment was submitted to the States. About a year later,
May 31, 1913, it was proclaimed to be in force.
Amendments Difficult to Obtain. — From the standpoint of
a study of the amendment process, the sixteenth and seventeenth
amendments are of peculiar interest. They are the only amend-
ments that have been adopted in really normal conditions, under
pressure of public opinion. They were not the result of war,
as were the thirteenth, fourteenth, and fifteenth amendments,
and they were enacted under conditions altogether different
from those which compelled the adoption of the first twelve
amendments. Moreover, the seventeenth amendment is the
only one adopted that has involved a fundamental structural
change in the constitutional system. This is a fact of great
signilicance. It is noteworthy, to say the least, that a new
government should be estabHshed according to an untried plan,
with many novel features, and continue in operation for a
century and a quarter before a single change in its fundamental
structure was accomplished in the manner prescribed by the
Constitution. That fact might indicate several things. It
might indicate, for instance, that the Constitution as drafted
was a most perfect instrument and that the people have been
highly content with its provisions. Or, it might suggest that
the process of amendment is so difficult that public opinion has
been unable to force changes even where experience has shown
them to be wise. Again, it might suggest that needed alter-
ations, difficult or impossible to obtain through the formal
amendment procedure, have been brought about by circum-
vention in ways and through agencies that lie outside of the
Constitution. The truth is, however, that all of these things,
rather than only one, are indicated. The Constitution, though
far from perfect, has proven itself a wonderfully efficient instru-
ment, and in the main the people have shown themselves pretty
well satisfied. That the work and organization of the govern-
' Beard, "American Government and Politics," New and Revised Edition,
P- 243.
u
290 COMPARATIVE FREE GOVERNMENT
ment have been profoundly influenced by extra-constitutional
devices is one of the most obvious facts in connection with
American politics. Merely to mention the party system is all
the evidence necessary. And that the amendment process is
exceedingly difficult is a fact easy to demonstrate. Experience
has abundantly proven it. The fact that only seventeen amend-
ments have been adopted out of some twenty-two hundred that
have been suggested is itself indicative of the truth.
With respect to the last point, the difficulty of amending
the Constitution, the struggle for the popular election of Sena-
tors may be cited again. The history of the seventeenth
amendment shows how comparatively easy it is to delay in-
definitely, if not prevent, the adoption of an amendment, and
how overwhelming and insistent the demand must be at times
to force Congress to act. The fact is that the majorities required
for the proposal and ratification of amendments are so large
that formal constitutional readjustments become pretty nearly
impossible. It will not do to assert that they cannot be made ;
the sixteenth and seventeenth amendments disprove that.
Yet it is within the truth to say that under ordinary conditions
the large majorities required, — -two thirds in each house of
Congress, or two thirds of the State legislatures necessary for
the proposal, and three fourths of the States, either through
their legislatures or conventions, necessary for ratification, —
make amendments practically inii)ossiI)lc, except when there is
tremendous puljlic pressure. The full significance of this is
coming to be understood by the masses of the people, and a
strong demand has developed for an easier method of amend-
ment. The Progressive party in its platform in 1912 inserted
a plank pledging itself " to provide a more easy and expeditious
method of amending the federal constitution." The convic-
tion that the amendment process should be changed is not con-
fined to members of one i)arty, however. The question is not
a party issue. Various suggestions have been made as to what
the process should be. One of the most interesting was em-
bodied in a resolution introduced into the Senate in 1Q12, which
provided that the amendment procedure be changed so as to
permit amendments to be proposed either by a simple majority
in each house of Congress, or by the action of the legislatures
or by direct vote of the people in ten states, and ratified by a
CONSTITUTIONAL READJUSTMENT BY AMENDMENT 29 1
majority of the voters in a majority of the States.' This would
not only make amendment easier by reducing the majorities
now required by the Constitution, but also would democratize
the amendment process and bring it into accord with the spirit
of the age.'
Amendment Process Undemocratic. — That the method of
amendment worked out by the framers of the Constitution is
highly undemocratic cannot be denied even by those who most
ardently defend it. Yet the United States, in spite of consti-
tutional checks, has become a democratic Nation, and the
people demand governmental institutions that are thoroughly
responsive to their will. The fact is that the Constitution was
not designed to be democratic and the amendment process was
not intended to make it easy for the people to institute changes
in the fundamental law. It was the deliberate intention, rather,
to make such changes difficult. Trust in the wisdom of the
people and belief in their capacity to run their own government
unchecked, in no way characterized the men who were respon-
sible for the Constitution. One of the great objects they had
in mind, and of which they spoke again and again, was stability ;
but stability with a democratic government they believed to
be impossible. Popular control they did not want and were
determined not to have, if drastic checks upon popular action
could prevent it. Making amendments to the Constitution
difficult was one way to help accomplish their purpose.
The significance of the amendment provision as a check
upon democracy was clearly seen by leaders who were in sympa-
thy with popular government. A notable expression of what it
meant was made by Patrick Henry in an argument against the
ratification of the Constitution before the Virginia convention.
It is worth while to quote somewhat freely from this statement.^
" To encourage us to adopt it, they tell us that there is a plain
easy way of getting amendments. When I come to contemplate
this part, I suppose that I am mad, or that my countrymen are
so. The way to amendment is, in my opinion, shut. Let us
consider this plain, easy way." After quoting the amendment
> Introduced by Senator La Follette of Wisconsin. ^ Below, p. 643.
^Elliot's Debates, Vol. IH, pp. 48-50. Quoted in Smith's "The Spirit of
American Government," pp. 44-46. Professor Smith's chapter on the .Vmendment
of the Constitution is keenly interesting and suggestive.
2 92 COMPARATIVE FREE GOVERNMENT
provision of the Constitution, he goes on : " Hence it appears
that three-fourths of the States must ultimately agree to any
amendments that may be necessary. Let us consider the
consequence of this. However uncharitable it may appear,
yet I must tell my opinion — that the most unworthy charac-
ters may get into power, and prevent the introduction of amend-
ments. Let us suppose — for the case is supposable, possible,
and probable — that you happen to deal those powers to un-
worthy hands; will they relinquish powers already in their
possession, or agree to amendments? Two-thirds of the Con-
gress, or of the State legislatures, are necessary even to propose
amendments. If one- third of these be unworthy men, they may
prevent the application for amendments ; but what is destruc-
tive and mischievous, is, that three-fourths of the State legis-
latures, or of the State conventions, must concur in the amend-
ments when proposed! In such numerous bodies, there must
necessarily be some designing, bad men. To suppose that so
large a number as three-fourths of the States will concur, is to
suppose that they will possess genius, intelligence, and integrity,
approaching to miraculous. It would indeed be miraculous
that they should concur in the same amendments, or even in
such as would bear some likeness to one another; for four of
the smallest States, that do not collectively contain one-tenth
part of the population of the United States, may obstruct the
most salutary and necessary amendments. Nay, in these
four States, six-tenths of the people may reject these amend-
ments; and suppose that amendments shall be opposed to
amendments, which is highly probable, — is it possible that
three-fourths can ever agree to the same amendments? A
bare majority in these four small States may hinder the adoption
of amendments ; so that we may fairly and justly conclude that
one-twentieth part of the American people may i)revent the
removal of the most grievous inconveniences and oppression,
by refusing to accede to amendments. A trifling majority may
reject the most salutary amendments. Is this an easy mode
of securing the public liberty? It is, sir, a most fearful
situation, when the most contemptible minority can prevent
the alteration of the most oppressive government ; for it
may, in many respects, prove to be such. Is this the spirit
of republicanism? "
CONSTITUTIONAL READJUSTMENT BY AMENDMENT 293
That experience has shown that the difficulty in inducing
Congress or the States to propose amendments has been greater
than that of obtaining ratification of the few that have been
proposed, does not detract from the force of Patrick Henry's
argument even when applied to present conditions. The point
he made, indeed, is even more telling now than it was when he
gave it expression. As far as amending the Constitution is
concerned, the claim of majority rule in the United States is
simply farcical. An exceedingly small minority can block the
way to constitutional changes. It has been computed that
according to the census of 1900, " one forty-fourth of the popu-
lation distributed so as to constitute a majority in the twelve
smallest States could defeat any proposed amendment." ^
At the present time, due to the marvelous increase in the popu-
lation of some of the larger States, it is doubtless true that
even a smaller minority properly distributed, could defeat
proposed amendments, although their rejection by thirteen
States is now necessary to that end. The conclusion is unavoid-
able that the amendment feature of the Constitution is extra-
ordinarily undemocratic and that if genuine popular govern-
ment is to prevail in the United States an easier method of
amendment must be provided.
The rigidity of the United States Constitution is one of its
most marked characteristics. Yet rigid constitutions, hard to
modify, are incompatible with the spirit of truly free govern-
ment, unless they are supplemented by statutory provisions
which eliminate the need for constitutional changes — and this
cannot always be done — or are circumvented by extra-consti-
tutional processes which practically nullify constitutional limi-
tations. " All democratic constitutions are flexible and easy
to amend. This follows from the fact that in a government
which the people really control, a constitution is merely the
means of securing the supremacy of public opinion and not an
instrument for thwarting it. Such a constitution cannot be
regarded as a check upon the people themselves. It is a device
for securing to them that necessary control over their agents
and representatives, without which popular government exists
only in name. A government is democratic just in proportion
as it responds to the will of the people ; and since one way of
* Smith, " The Spirit of American Government," p. 46.
294 COMPARATIVE FREE GOVERNMENT
defeating the will of the people is to make it difficult to alter
the form of government, it necessarily follows that any con-
stitution which is democratic in spirit must yield readily to
changes in public opinion." ^ If the formal Constitution of the
United States is to be in keeping with the democratic spirit of
the people, its amendment section must be radically revised.
That this will be done in time can hardly be doubted ; but
exactly what the change shall be is one of the real problems of
American politics.
REFERENCES
Beard. American Government and Politics, Edition 1Q14, Chap. IV, pp.
60-71.
Bryce. The American Common'^iralth, luiition 19 10, Vol. I, Chap. XXXII.
Smith. The Spirit of American Government, Chap. IV.
* Smith, " The Spirit of .American Government," p. 40.
CHAPTER XXIII
Constitutional Readjustment through Law, Custom, and
Judicial Construction
What has been said thus far concerning constitutional read-
justment has had to do exclusively with the formal Constitution
and the formal method of changing it. But the formal Consti-
tution is by no means the real, the working Constitution. The
latter is made up of the former plus a good many other things.
Moreover, the formal amendment process is by no means the
only way of modifying fundamentally the formal Constitution,
It may be, and, indeed, has been profoundly influenced, sup-
plemented, rounded out, in other ways. And it is this larger
Constitution that is vital. To understand it is to understand
the real processes of government and the many ways in which
they act and react upon one another ; and to be content with
less than this is to be content with an incomplete, distorted,
false view of what the United States has done, and is doing, to
solve the problems of free government. In addition, therefore,
to the formal procedure of amendment, are to be noted certain
other ways in which the written Constitution has been sup-
plemented and modified. There are three of these, — statutory
provisions, judicial interpretations, 'and custom.
Growth through Legislation. — Supplemental legislation by
Congress, providing for many really fundamental parts of the
governmental structure, was made necessary by the written
Constitution. The machinery of government specifically estab-
lished by the Constitution, in fact, was incomplete, and with-
out additional features authorized by law could never have met
the demands put upon it. For instance, the constitutional
provision authorizing the federal court system was wholly
inadequate. Without action by Congress, there could be no
federal courts, not even a Supreme Court. The statutes,
therefore, by which the courts have been created and organized
295
296 COMPARATIVE FREE GOVERNMENT
may properly be looked upon as " constitutional," that is, as
part of the broad, working Constitution of the United States.
And so, also, with laws affecting fundamentally the other de-
partments of government. It is by the Constitution that the
powers and instrumentalities of the government are distributed
and harmonized. Any statute, then, like the Judiciary Act of
1789, or its successor, the Judicial Code of 191 1, or like those
establishing the executive departments or regulating the elec-
tion of members of Congress, must be considered parts of the
true Constitution. The extent of such legislation is very
great. Speaking of what he calls " statutory elaboration of the
constitution," Professor Beard says:". . . If wc regard as
constitutional all that body of law relative to the fundamental
organization of the three branches of the federal government,
— legislative, executive, and judicial, — then by far the greater
portion of our constitutional law is to be found in the statutes.
At all events, whoever would trace, even in grand outlines, the
evolution of our constitutional system must take them into
account." ' To illustrate the kind of statutes in question, this
writer observes that the twelfth amendment is hardly more
important than the law of 1887, " which elaborates it in great
detail Ijy providing the modes of counting the electoral votes
and determining controversies." No particular additional
comment is needed to emphasize the significance of these laws.
It should be added, however, that though they are as much law
as the written Constitution itself, yet their status with respect
to modifications is not the same as that of formal constitutional
provisions. They are ordinary law and may be changed by the
ordinary legislative procedure.
Judicial Construction. — A second method by which the
Constitution has been expanded is that of judicial construction.
To the courts, and in the end to tlu- Supreme Court, alone, be-
longs the function of interpreting the Constitution. This
means that, in the last analysis, the formal Constitution, the
part which may be subjected to construction by the judicial
power, is simj)ly what the Supreme Court says it is. It is for
the Court to determine what the Constitution provides. Whether
or not the juflgment of the Court accords with the opinions of
the legislative and executive departments, or with the desires
' Beard. " American Government an<l Politics, " New and Revised Edition, p. 72.
CONSTITUTIONAL READJUSTMENT THROUGH LAW 297
of the people, is a matter of no moment. The Court's decision
is conclusive as long as the Court permits it to stand. To get
at the meaning of the Constitution, then, the written document
must be read in the light of all the interpretations of it made
by the Supreme Court in the cases that have come before it
for adjudication. Necessarily there have been many calls
upon the Court to construe various constitutional provisions.
This was inevitable in view of the extreme brevity of the Con-
stitution and the very general terms in which it is written.
With respect to some things the Constitution is minute in its
provisions, but to a large extent it deals with general principles
in general terms. To apply these principles to the specific
questions that have arisen has been a most difficult task and
has made the function of constitutional construction one of
supreme importance. From the generality of the phraseology
of the Constitution, the courts, when called upon to construe it,
have been in a position to influence profoundly the industrial
and poHtical life of the Nation. A tremendous power was thus
placed in the hands of the judges. And this power has become
of more and more importance with the passing years because
of the marvelous development of the United States and the
rise of new problems, necessarily unforeseen by the makers of
the Constitution. In thus adapting the Constitution to unan-
ticipated conditions, there have been unavoidably both expan-
sion and modification. The Constitution to-day is a much more
inclusive document than it was when it was accepted by the
States in 17S9. Undoubtedly the powers of the national gov-
ernment arc much greater now than they were intended or ex-
pected to be by those who framed and ratified the Constitution.
Perhaps the most notable instance of constitutional expan-
sion through judicial construction is found in the power of
the courts to declare legislative acts unconstitutional. As
brought out in the discussion of the relation of the courts to
legislation, this power was not given to them by express grant
of the Constitution. It is exceedingly doubtful whether it was
the intention that the judicial power should extend so far. Yet
the courts do declare legislative acts void and have done so since
1803, when the power so to do was asserted in the case of Mar-
bury V. Madison.^ The reasoning upon which the court based
' I Cranch 137.
298 COMPARATIVE FREE GOVERNMENT
its right has already been given. Whether it is sound or not,
is not pertinent here. The prime fact is that the courts exer-
cise the power and the power is derived by judicial construction.
The Doctrine of Implied Powers. — Other examples of the
importance of judicial construction are found in powers recog-
nized as belonging to the Nation, but which come to it by im-
plication and not by direct grant. From the beginning the
rule has been to construe liberally all grants of power made by
the Constitution. The Supreme Court, from the very first,
has recognized the right of the national government to exercise
all those powers which are necessary and proper for the effective
use of the powers specifically conferred. This is the essence of
the doctrine of implied powers ; though the doctrine complete
covers, in addition to those suggested, the powers which may
be implied from the general nature and purpose of the Constitu-
tion. The full, conclusive statement of the principle was made
by the Supreme Court in the famous case of McCulloch v.
Maryland, decided in 1819.^ An implied power is just as defi-
nitely a " grant " of power as is one specifically enumerated, and
is to be construed with the same liberality.
Through the use of this principle of implied powers the author-
ity of the nation has been greatly extended. A number of
highly important matters have become the subjects of congres-
sional legislation which the words of the Constitution in no way
suggest and which the framers of the Constitution could not
possibly have had in mind. Two or three examples will be
sufficient to show the great importance of the principle and the
way in which it has worked to the extension of national power.
In the case of McCulloch v. Maryland one point at issue was
whether the Congress had the right to incorporate the Bank
of the United States, which had been created by law in 181O,
inasmuch as the Constitution did not in express terms confer
this authority upon Congress. The court held that Congress
acted within its powers, notwithstanding the absence of a
specific grant. The jwwer was one to be implied fairly from
provisions which are specific. " Although, among the enumer-
ated powers of government, we do not t'md the word ' bank ' or
' incor|K)ration,' we find the great |)()wers to lay and collect
taxes; to borrow money; to regulate commerce; to declare
' 4 \\ hcalon ji6.
CONSTITUTIONAL READJUSTMENT THROUGH LAW 299
and conduct war ; and to raise and support armies and navies."
If to carry out any or all of these powers a United States bank
was deemed necessary or proper by the Congress, its right to
establish -the bank could not be questioned. To Congress
alone is given the right to determine what means it shall employ
to carry out a purpose authorized by the Constitution. In this
instance, Congress was given specific control over the Nation's
fiscal affairs, and, therefore, could establish and make use of
a bank or any other agency which might commend itself. On
the same basis, there have been created by Congress a national
currency and a vast system of national banks, minutely regu-
lated by law. The law of 1914 reorganizing the banking system
and establishing a number of reserve banks was enacted under
this implied authority.
Another illustration of the expansion of national authority
is afforded by the protective tariff system maintained for so
many years. By this means the economic opportunities and
industrial activities of individuals. States, and sections may be
effectively controlled by national regulations. Yet the Con-
stitution does not expressly give Congress power to levy cus-
toms duties for the purpose of protecting industries. It does
give Congress power, however, to lay and collect taxes and
imposts, and regulate commerce with foreign nations. The
purpose and the method of this regulation are for Congress
to determine. The result is that during nearly the whole
of its life, the United States has levied tariff taxes which have
not been merely for the sake of revenue. The influence of this
policy, both industrially and politically, has been far reaching,
and the question of the degree of " protection " to be afforded
is still, as it has been from the beginning, one of the large ques-
tions in the field of controversial politics.
Again, there may be cited the power exercised by Congress
over interstate commerce. The constitutional provision is
merely that Congress shall have power to regulate commerce
among the several States. In the early da3's of the Republic
this was a power of slight importance as compared with what
it has been for many years. The growth of great railway sys-
tems, traversing many States, and the development of multi-
tudes of corporations, large and small, doing an interstate busi-
ness, have made this power one of the most vitally important
300 COMPARATIVE FREE (GOVERNMENT
powers which Congress possesses. There is, in fact, no more
difl&cult problem confronting the American people than that
involved in the control of corporations, trusts, and monopolies,
and it is through its power to regulate interstate commerce
that Congress may deal with it. One of the greatest depart-
ments of the government, the Interstate Commerce Commis-
sion, with its large power of control over interstate carriers,
was established under this power. All the antitrust legisla-
tion, beginning with the Sherman law of 1890, has been enacted
under the same authority. The tendency has been to appeal
more and more to the national power for the control of industry.
But the purpose is not always industrial. Sometimes it is
distinctly moral and social. A splendid example of this is the
so-called Mann white slave act which calls into use the power of
Congress over interstate transportation to forbid the carrying
of persons from one State to another for immoral purposes.
This act was vigorously attacked in the Courts, but its con-
stitutionality was upheld. Another evidence of this is the pro-
posed national child labor law by which it is sought to forbid
the interstate shipment of all goods in the manufacture of which
the labor of children under a specified age shall have been used.
This kind of legislation has until recently been looked upon as
coming exclusively within the power of the States. The fact
that an insistent and increasing demand has developed for
national action clearly indicates the great expansion that the
power of Congress over interstate commerce has undergone.
Still other illustrations of the development of national author-
ity through the j)rincii)le of implied j)owers could easily be cited,
but these are sufficient to show how the i)rinci])le works. The
enumerated jwwers are comparatively few, but these give rise
to many imi)lied i)owers. The exercise of one calls for the exer-
cise of another, and these call still dthirs into bting. In (he
apt words of Bryce : " Eacli has jinxhucd a progeny of sub-
sidiary powers, some of which have in tluir turn !)een surrounded
by an unex|)ected of[s])ring." '
The great |)oint to be remembered in this connection is that
all these various impliiil powers come to the nalional goviTn-
ment by judicial construction. Had the Supreme Court chosen,
'Bryce, "The American Commonwealth," New and Revised Edition, Vol. I,
p. 382.
CONSTITUTIONAL READJUSTMENT THROUGH LAW 301
as it might, to accept the arguments of the strict construction-
ists — and there have always been strict construction adher-
ents in the United States; had it chosen to apply the strict
letter of the Constitution and not the spirit, the powers of the
Nation and its relation to the States would be vastly different
from what they are. American history would not read as it
does. With such an ideal of national union as the strict con-
struction theory called for, and with such national impotency
as it would have made inevitable, the strain of the Civil War
could never have been withstood. The debt of the Nation
to the Supreme Court is great.
Supreme Court and Constitutional Expansion. — By a good
many persons the Supreme Court has been sharply criticized
for the part it has had in the adaptation of the Constitution
to new conditions, and the consequent enlargement of national
power. Thomas Jefferson spoke for a host of followers when
he said that the Court in assuming the right to declare legisla-
tive acts unconstitutional has usurped a supreme power which
did not belong to it, and that the Constitution, if the Court
alone can explain it and determine its meaning, " is a mere
thing of wax in the hands of the judiciary which they may
twist and shape into any form they please." He was equally
the mouthpiece of a multitude when he asserted that the federal
judiciary is the " subtle corps of sappers and miners constantly
working under ground to undermine the foundations of our
confederated fabric. They are construing our Constitution
from a coordination of a general and special government to a
general and supreme one alone." Though the Supreme Court's
critics have not always been as severe in their comments as
was Jefferson, it has never been free from hostile criticism. It
has often been charged as guilty of " judicial legislation." By
this is meant that it has, through its power to construe both
Constitution and statutes, read into them things that were
never intended by the framers of the Constitution or by Con-
gress ; and by so doing, the assertion is, it has stepped beyond
the proper limits of judicial power. The truth of the general
criticism will be denied by few. The powers of the Nation
have been amplified, and those of the States have been restricted
by judicial construction. Statutes, as, for example, the Sher-
man antitrust law, have been given meanings not intended by
302 COMPARATR-E FREE GOVERNMENT
Congress. The results of this have been profoundly political.
But that the Supreme Court has purposely transformed itself
from a judicial into a political body, and has maliciously, or
even intentionally invaded the province of either the legislative
or the executive department, there are few to assert. It has
never sought to cripple the other departments. On the con-
trary, it has striven to respect and protect their powers, and in
an admirable manner has adhered faithfully to the judicial
function of interpretation and construction. The critics of
the Supreme Court have too frequently been misled by the con-
sequences of its work. Those consequences oftentimes have
a deep political significance ; but that by no means indicates
that the court was actuated by political motives. It has with
splendid consistency confined itself to the adjudication of the
legal and constitutional rights involved in the controversies
before it. Its record is not perfect, of course, — the judges are
men ; but to the impartial observer its record challenges ad-
miration, nevertheless.
With respect to the part which the Supreme Court takes in
the modification of the formal Constitution', it is to be borne
in mind that its function is one of vital necessity. The Con-
stitution must be adapted to the needs of the Nation and keej)
pace with its growth. In part this readjustment is brought
about by formal amendments and by processes which lie out-
side the field of constitutional authorization; but in large part
it must continue to be brought about, as it has in the past, by
judicial construction. The Constitution is a living thing and,
therefore, a changing thing. It must continue to live, and con-
tinue to grow and change, unless it is to become a stumbling-
block in the way of the Nation's progress. To the Supreme
Court, in large part, falls the duty of elaborating it by interpre-
tation so that it will respond adequately to the demands made
upon it from generation to generation. The powers given to
the national government by the express grants of the Constitu-
tion are the same now as they were in the beginning; but the
express powers are wholly inadequate, and, as new conditions
ari.se, with their attendant i)r()l)lems, new and hitherto unan-
ticipated implied powers must be brought to light. To the
Supreme (Jourt, therefore, the Nation must look for continu-
ous elaboration and adaptation of its fuiidanu'iital law. The
CONSTITUTIONAL READJUSTMENT THROUGH LAW 303
necessity of this is apparent; also, its danger and difl&culty.
No other function of government calls for broader vision, higher
wisdom, and clearer understanding of the spirit, ideals, and
principles of free institutions.^
Development through Custom. — There remains to consider
the third way in which constitutional readjustment is accom-
plished, other than by formal amendment, namely, custom or
usage. Strictly speaking, of course, political customs, no matter
how long standing, cannot be said to be a part of the consti-
tutional law of the United States. In case of a clash between
a venerated custom and the written Constitution, it is the latter
which would be given force by the courts. Nevertheless, the
formal Constitution has been materially influenced in its work-
ing by certain customs and traditions. Indeed, custom plays
an unusually large part in the actual operation of the United
States government. To the American, as well as to the foreigner
unfamiliar with the facts, it comes with somewhat of a shock
to discover how profoundly the organization and the processes
of government have been affected in this manner. As has
been pointed out in previous discussions, the constitutional
system set up in the United States, though based upon vital
experience, was almost wholly the result of deliberate choice,
of conscious analysis. From the very first, however, changes
began to occur by common consent. The general result is that
customs or understandings play quite as large a part in the
control of governmental operations in the United States as they
do in European countries. Even in England the customs of the
constitution are hardly more important than are those of the
United States. Some leading examples will be given to illus-
trate their force.
The most consequential development that has come about
through custom, — one which revolutionized the spirit of the
constitutional system, — is the development of the political
parties with their vast and complicated systems of organiza-
tion. It will be recalled that the framers of the Constitution
were opposed to parties and tried and ho[)ed to prevent their
rise. Yet parties have, almost from the beginning, dominated
the government in all of its activities. The President, contrary
' Wilson, " Constitutional Government in the United States," p. 158. For con-
trast as shown by Australian methods see below, Chap. XLV.
304 COMPARATIVE FREE GOVERNMENT
to all desire and expectation, is a party man, and not only that,
but the leader of his party. Appointments to office have been
largely partisan appointments, and are so still, except in so far
as they are now controlled by civil service regulations. Each
house of Congress is organized and dominated by the majority
party. Even the courts come within the range of party influ-
ence. Yet all this is without constitutional authorization or
even recognition. The party system in the Nation has nothing
but custom, long-standing habit, to rest upon. Though this
system is not a part of the formal Constitution, yet it is clearly
a vital part of the real, working constitutional system. It is
sheer nonsense to look upon it in any other way. No under-
standing of constitutional government in the United States
can be had without a study of the political parties and their
methods.
Growing out of the existence of parties, other customs of
the Constitution have developed. One of the most notable
is that by which the constitutional method of choosing the
President has been set aside, and there has been substituted for
it what is called a popular election. As we have seen, this is
not a strictly poj)ular election, but a choice by States through
popular elections. It is, however, a strictly party election.
The presidential electors are party agents, committed in advance,
not legally but morally, to vote for their respective party
candidates for President and Vice President. The whole
electoral college scheme has been transformed. Yet the selec-
tion of the President by a popular parly vote is absolutely
opposed to the Constitution as it was in the beginning. Of
course this is not a legal modification of the formal Constitu-
tion. The electors unquestionably still have a jierfect legal
and constitutional right to vote for others than their i)arly
candidates. Hut the great fact is that they do not vote for
others and have not done so since parties came inlo being. The
chaiige that has occurred is vital and fundamental.
Again, the position, power, and influence which the Speaker
of the House of Ref)resentatives has come lo hold is in no way
due to i)rovisions of the written Constitulion. The Constitu-
tion neither gives him j)owers nor assigns him duties. It merely
declares that the House "shall choose their own Speaker," —
a de( laration which li-lls absolutely nothing about him and his
CONSTITUTIONAL READJUSTMENT THROUGH LAW 305
work. And even this simple statement has been rendered
meaningless by custom, for, although the technical, legal elec-
tion of the Speaker is by the House of Representatives, the real
choice is made by the caucus of the majority party. Further-
more, the vast influence of the speakership is due to custom
observed by the House, with the tacit approval of the people,
and to rules of the House's own making. The Constitution
points to a speakership that is a purely parliamentary office,
but it is, as a matter of fact, a party institution.
The committee system maintained by the Congress affords
another excellent example of how inner, vital processes of gov-
ernment are controlled by agencies which lie outside the Con-
stitution. Each house of Congress legislates by means of
standing committees. No legislation, except under the most
extraordinary conditions, is enacted without reference to com-
mittees. The committee system is absolutely central in the
organization of each house, yet it is unknown to the Constitu-
tion. It rests only on rules of the houses and could be com-
pletely destroyed at any moment.
The party caucus is another important extra-constitutional
body. Each party in each house of Congress has its caucus.
The caucus of the dominant party in each house determines
its organization. And, as has been pointed out, and need not
be elaborated again, the very content and form of important
legislative measures may be finally determined in the caucuses
of the majority party, so that the action of the houses becomes
a mere formality. On custom alone these institutions are
based.
The President's cabinet is an unofficial body, based on cus-
tom, and lying wholly outside the Constitution. The Consti-
tution recognizes the existence of heads of departments, but
there is nothing in it to suggest a cabinet. Both the term
" cabinet " and the idea it suggests were almost unknown at
the time the Constitution was adopted. The cabinet, a collec-
tive body of advisers to the President, is the outgrowth of
custom.
Still other customary practices affecting constitutional
relations may be mentioned without special comment. The
Senate controls presidential appointments in a way not con-
templated by the Constitution. The appointment of cabinet
3o6 COMPARATIVE FREE GOVERNMENT
officers, however, is not interfered with by the Senate. The
President uses the veto power for reasons not originally in-
tended. The two-consecutive-term tradition has become pretty
firmly established although under the Constitution a president
may be reelected indefinitely. Heads of departments are not
permitted to participate in the discussions of Congress, though
there is nothing in the Constitution to prevent their doing so.
For more than a century the Presidents observed the tradi-
tion of sending written messages to Congress and not deliver-
ing them orally. This tradition, however, was broken by Presi-
dent Wilson, who restored the practice of Washington and
Adams. Originating revenue legislation is only nominally an
exclusive power of the House of Representatives.
From the illustrations given, it is evident that custom is a
significant factor in the operation of the United States govern-
ment. It has given rise to institutions and practices which
have affected profoundly the Nation's development and brought
into existence some of the Nation's greatest problems. The
fact is also apparent from what has been said in preceding por-
tions of this chapter, that custom is only one of several methods
of constitutional readjustment and development. By amend-
ments, by supplemental legislation, by judicial construction,
and by custom, the constitutional system has been elaborated
and modified until it is little short of amazingly different from
what its creators designed it to be. By these different processes
the skeleton outline of government given in the written Consti-
tution has been filled in and rounded out until it is a complete,
workable, efficient, though imperfect, system. By the same
processes, other modifications and enlargements, unforeseen
at i)resent, will be made in the years to come. Constitutional
development must go on as long as the Nation lives.
REFERENCES
Bkard. American Govcrnnunl and Polilics, Edition 1014, Chap. IV, pp.
72-77-
Bkycm. TIw Amcriran Commonwealth, IMitinn ujio, Vol. I, (,'liaps. XXXIII,
XXXIV, XXXV.
TiKDKMAN. The Unwrillrn Conslilittion of Ihr United States.
CHAPTER XXIV
The States — Constitutional Position and Powers
The bed-rock principle of the constitutional system in the
United States is that of federalism. Indeed, the United
States is the most conspicuous example of federation known
to history, and her great success in developing a unified, effi-
cient national government without destroying the independence
of the States of the Union, or even seriously impairing their
autonomy, constitutes one of her most notable contributions
to the science of politics. The United States is not merely a
large and powerful state with a hundred million people, gov-
erned by a President, a Congress, and a judiciary, but is a Union
of forty-eight commonwealths which are independent of one
another and largely independent of the national government,
each with a complete governmental organization of its own.
Understanding of the nature of the American Union and the
functions of the commonwealths which form it is absolutely
essential, therefore, for a clear comprehension of the United
States government, and any description which fails to include
an account of the States is obviously incomplete, if not fallacious.
It is necessary, consequently, to give at least brief consideration
to the States and their governments.
The elementary though vital fact is to be kept in mind that
the national government is one with conferred or limited powers,
and that the States possess the original or inherent powers of
government. Except with respect to those powers delegated
exclusively to the Nation and those other powers definitely
prohibited to the States, the latter possess all the residual powers
of government and may use them as they please as long as the
requirements of the federal Constitution are properly observed.
As stated in the first chapter of this book, it must be shown
positively that a power has been prohibited to the States before
307
3o8 COMPARATIVE FREE GOVERNMENT
its exercise can be denied them, whereas in the case of the na-
tional government it must be shown affirmatively that a power
has been conferred by the Constitution before its exercise can
be considered valid. To a person accustomed to a unitary gov-
ernment and unacquainted with the conditions surrounding
the formation of the American Union, this is likely to appear
a reversal of the proper order; to such the logical, natural
arrangement is to have the national government one of reserved
powers and the commonwealths possess only delegated author-
ity.^ But under the circumstances which prevailed at the time
the Constitution was adopted, the American arrangement was
not only logical, but inevitable. The States already existed.
Each one had a fully developed governmental organization
and, in a theoretic sense, at least, possessed supreme or sovereign
power. If a national government were to be created with
authority to control even only a few matters of national con-
cern, it could be done only on condition that the powers in
question should be taken from the States and transferred to
the Nation. The States had all the powers that were possible
before the Constitution was adopted; by its adoption their
powers were curtailed and some of those which they formerly
possessed were delegated to the new central or national author-
ity. Because of the jealousies, rivalries, and antagonisms, which
characterized the original States in their dealings with one
another prior to the establishment of the Constitution, and
because of the devotion of the people to their respective State
governments, a full surrender of the latter's inherent powers
was an impossible action. The utmost that could be reason-
ably hoped for was the delegation to the Nation of sufficient
power to enable it to control in matters that were national or
interstate in character; all local or intrastate questions must
lie within the control of the States themselves. Thus the
constitutional i)osilioii of the States in their relation to the Na-
tion was dictated by the (ondilions which gave rise to the need
for a new and cllu icnt (ciitral government.
The Equality of the States. — As a natural c oiiseciucnce of
the conditions which governed in the formation of the Union,
the States have a position of perfect equality under the Consti-
tution. Consent to the establishment of the new government
* Sue discussion of Ciiiiadu and Australia, Chap. XLV.
CONSTITUTIONAL POSITION AND POWERS OF STATES 309
could be obtained on no other basis. Moreover, this equality
in law belongs to the States admitted to the Union since the
adoption of the Constitution as well as to the original States.
A restriction which rests upon one, rests upon all alike ; a
power possessed by one belongs to the others in equal degree.
In theory it must be held that the powers of the national gov-
ernment come from the States admitted to the Union by na-
tional authority to the same extent as from the States that were
in fact responsible for the setting up of the Constitution. To the
admitted States as well as to the original States belong the
inherent powers of government. No distinction is or can be
made. In the words of the Supreme Court, a State upon its
admission to the Union " becomes entitled to and possesses all
the rights of dominion and sovereignty which belong to the orig-
inal States." ^
It is true that in admitting a number of States Congress
has sought to impose restrictions and exact promises which
were to be considered binding upon the States thus pledged
until they were freed from their obligation by some prescribed
process. It was required of Ohio and a number of other States,
for instance, that they should agree not to tax for a period of
years all public lands sold by the United States. Missouri
was forced to declare that its legislature under authority of the
State constitution should never be permitted to enact a law
denying to the citizens of other States any of the privileges and
immunities conferred on them by the federal Constitution.
It was demanded of Nevada that her constitution should be in
accord with the Declaration of Independence and that persons
should not be denied the right to vote on account of their
color. Of Nebraska it was required that the voting privilege
should not be denied because of race or color, Indians excepted.
Utah was required to provide for religious toleration, public
schools free from sectarian control, and the abolition of polyg-
amy.
The restraints which Congress has sought to impose upon
States at the time of admission are of two kinds, " those that
attempt to place the State under political restrictions not im-
posed upon all the States of the Union by the federal Constitu-
tion, and those which seek the future regulation of private, pro-
* BoUn V. Nebraska, 176 U. S. 83 (1900).
3IO COMPAR.\TIVE FREE GOVERNIMENT
prietary interests." ^ These are vitally different from the point
of view of enforceability. The political restrictions are not en-
forceable. The Supreme Court has so ruled upon repeated
occasions. When a State is once admitted to the Union it
cannot be subject to political restraints which are not obligatory
upon all the States alike. The powers of the States are identical.
A Territory seeking statehood may be forced to accept condi-
tions imposed by Congress that involve political restrictions,
but when it becomes a State it may disregard those conditions
if it chooses. A recent illustration is found in the case of Arizona
which was forced to modify its proposed constitution, partic-
ularly with respect to the recall of judges, before Congress
would give its approval. The authority of Arizona, however,
as of any other State, to provide for the recall of judges is beyond
question. Restrictions of this kind are simply of no force.
If they were of force, the equality of the States under the Con-
stitution would be destroyed. The second kind, however, those
relating to the regulation of private, proprietary interests, arc
enforceable and the Supreme Court has so declared. Such
restrictions amount merely to agreements between a State and
the Nation, constituting valid contracts which are binding,
but which in no way impair the political equality of the States."
Decline in State Prestige. — It is essential to note that
though there is constitutional equality among the States, yet
relatively the States are not now so important as the original
States were in 1789. With the growth of the Nation's power and
inllucnce, the States have declined in prestige. They are still
vital, imperatively necessary elements in the constitutional
> Willoughby, " Constitutional Law of the United States," Vol. I, p. 240. The
above statement conccrninK the attitude of Congress is based on Professor Wil-
louKhby's discussion.
2 Professor WillouKhby, ujxjn this point, cites as "most illuminatinR" the com-
paratively recent case of Stearns v. Miinicsola, 170 U. S. 22.5 (i<)Oo). "That case
involved the construction and application of an agreement made by the State with
the United States at the time of its a<imission to the Union, with reference to public
lands, within its boundaries, owned by the United States. The court in its opinion
says: 'That these provisions of the Enabling Act and the Constitution, in form at
least, made a compact between the Unite<l States and the State, is evident. In an
inquiry as to the validity of such a compact this distinction must at the outset be
noticed. There may be agreements or compacts attempted to be entered into
between two States, or between the State and the Nation, in reference to iwlitical
rights and obligati(ins, and there may be those solely in refcreme to property be-
longing to one or to the other. That dilTcrent considerations may underlie the
question as to the validity of these two kinds of compacts or agreements is obvious.
CONSTITUTIONAL POSITION AND POWERS OF STATES 311
system, since without them the national government could not
exist, but they do not hold the central place in the affections
of the people which they once did. At the time of the adoption
of the Constitution practically the whole of the people's loyalty
was given to their respective States. In the beginning the
Nation received little or no devotion from the masses and had
no real place in their political consciousness. The States
towered above the Nation, the latter being looked upon generally
as merely the agent of the former for the control of certain
questions which were of common concern and which the States
acting separately could not settle satisfactorily. Service of
the States was quite commonly looked upon as of higher dignity
and honor than service of the new central government. Not
infrequently men resigned from high places in the national
government to accept offices in the States. The governorship
of a State was everywhere looked upon as superior to member-
ship in the United States Senate. This attitude of the people
was natural under the circumstances, and nothing else could
reasonably be expected. But a striking and fundamental
change has taken place, and now the Nation is most distinctly
first in the regard of the people. This has long been true, and
particularly so since the great Civil War, which put an end to
the extreme States' rights doctrine, gave a tremendous impetus
to nationalism, and settled for all time the question of whether
the Union is of the confederate or federal type. The spirit
of nationalism has developed steadily from the beginning.
With its growth, the relative importance of the States, and, to
a considerable degree, their actual political power, have de-
clined.
It has often been said that a State admitted into the Union enters therein in full
equality with all the others, and such equality may forbid any agreement or compact
limiting or qualifying political rights and obligations; whereas, on the other hand,
a mere agreement in reference to property involves no question of equality of status,
but only of the power of a State to deal with the Nation or with any other State in
reference to such property. The case before us is one involving simply an agree-
ment as to property between a State and the Nation. That a State and the Nation
are competent to enter into an agreement of such a nature with one another has lieen
affirmed in past decisions of this Court, and that they have been frequently made in
the admission of new States, as well as subsequently thereto, is a matter of history.
. . . We are of the opinion that there was a valid contract made with these com-
panies in respect to the taxation of these lands, — a contract which it was beyond
the power of the State to impair ; that this subsequent legislation does impair that
contract and cannot, therefore, be sustained. '" — " Constitutional Law of the United
States," Vol. I, pp. 242-243.
312 COMPARATRE FREE GOVERNMENT
Two significant facts may be suggested as partial explanation
of this decline. The first is the rapid, revolutionizing industrial
development of the United States, with its attendant problems,
dangers, and ev^ils. This has involved fundamental, far-reach-
ing changes in the life of the people and in the relations of the
States to the Nation, the true significance of which is by no
means fully comprehended even now. It must be remembered
that the industrial life of America in 1789, and for many years
thereafter, was very simple and easily regulated as compared
u-ith that of to-day. The people were for the most part agri-
culturists, and manufacturing industries were both small in
size and few in number. Industry and trade were essentially
local or intrastate in character and accordingly could be elTec-
tively controlled by the States. Interstate and foreign com-
merce, it is true, were becoming of increasing value and com-
plexity, and, consequently, the source of difficulties which were
hard for the States to settle ; but, nevertheless, the transfer
from the States to the Nation of the control over both interstate
and foreign commerce, important as they were, did not at the
time tend to undermine seriously the States' authority or divert
popular interest and loyalty from them to the newly established
national government. But with the development of the vast
railway systems, reaching into every corner of the land, and
the growth of multitudes of industrial corporations, large and
small, engaged in interstate and foreign trade, a new industrial
order has come into being. The elTect of this upon the polit-
ical life of the States and of the Nation has already been pro-
found ; and the ultimate consequences are still to be revealed.
Readjustments and more or less of redistribution of political
powers were inevitable, regardless of the letter of the Constitu-
tion or the intention of its makers. By the very force of cir-
cumstances and the nature of their needs the people have been
comi)elled to look more and more to the national authority for
reUef and protection from corporate abuses and moiioi)olistic
greed and oppression. The result has been a weakening of the
States and a strengthening of the Nation. Power has been
transferred from the one to the other, with a consequent loss
of prestige by the States. In the field of national politics now
lies the largest op[)ortunity for statesmanshij) and leadership,
as far as industrial afiairs arc concerned. However, it should
CONSTITUTIONAL POSITION AND POWERS OF STATES 313
be noted, signs are not lacking that the pendulum may swing
somewhat in the other direction. In very recent years there
has been a sort of rejuvenation of the States through the agita-
tion for a more democratic governmental organization and a
larger exercise of their police powers in the promotion of social
welfare policies. The opportunity thus afforded is proving
attractive to men of vision and high abihties, and may cause
the States to regain some of their lost glory and influence.
The second fact which beyond question has had a good deal
to do with the relative decline of the States is the artificiality
of many State boundaries, with the consequent arbitrary divi-
sion politically of communities and regions which properly belong
together. The States as a rule are not natural economic and
social units. The influence of this fact upon the pohtical ac-
tivities of the States is obvious. It tends not only to eliminate
dissimilar features in the State governments and promote uni-
formity, but also to make the people willing to have the common
central government act in the place of their respective States.
If a problem is common to all or many of the States, and since
a uniform solution is desirable, what is more natural than to
look to the national government for that solution, even though
the problem, under the letter of the Constitution, lies within
the province of the States and not of the Nation? It is easy
to overemphasize the potency of an influence Hke that under
discussion, and the suggestion must not be carried too far ; but
that the artificiality of State boundaries and the lack of social
and economic distinctions among the States tend to make the
American people somewhat complacent in the face of a transfer
of political power from the States to the Nation can hardly be
disputed.
Besides, the people are accustomed to the same artificiality
and to a high degree of central control in their local government
units, particularly the counties and townships. The normal
township is a block of territory six miles square and its bound-
aries are wherever the surveyors' lines happened to run, regard-
less of economic, social, or geographical considerations. The
county is a large district, with equally artificial boundaries,
composed of, say, sixteen townships. These local units are
mere divisions and subdivisions of the State and in their polit-
ical activities are controlled bv State laws. Tlie natural influ-
314 COMPARATIVE FREE GOVERNMENT
ence of these local adjustments is to tend to make the people
satisfied to have the States, which are, after all, only divisions
of the Nation, more or less under the control of the national
authority-
Relation of the States to One Another. — Frequent reference
has been made to the fact that the States are independent of
one another. This is a fact of significance and is entirely true
with respect to the operation of their own local laws. The
authority of each State ceases absolutely at its boundaries, how-
ever artificial they may be. The States are not, however, in
the position of true foreign states, because their relations with
one another, so far as they may have such relations, are con-
trolled by the federal Constitution. Four important constitu-
tional provisions in this connection are to be noted. The first
requires each State to give full faith and credit to the public
acts, records, and judicial proceedings of every other State ;
the second provides that the citizens of each State are entitled
to all the privileges and immunities of citizens in the several
States ; the third requires that a person who is charged in any
State with a crime and who flees from justice and is found in
another State, shall upon the demand of the executive authority
of the State from which he has fled, be returned to the State
having jurisdiction of the crime ; and the fourth provides that
no Stale shall, without the consent of Congress, enter into any
agreement or compact with another State, or with a foreign
power. It is also to be noted that the States arc prohibited
absolutely from entering into any treaty, alliance, or confedera-
tion.
These constitutional restrictions and requirements make
plain the fact that the States cannot do as they please in their
dealings with one another. It should be clear that the full
faith and credit clause applies only to ci\il judgments. The
[)enal laws of a State are without force in the other States and
no State is under obligation to help enforce the criminal laws
of another. Concerning this point thf Suj)reme Court says:
" The rules that the courts of no countr\' execute the penal laws
of another applies not only to prosecutions and .sentences for
crimes anrl misdemeanors, but to all suits in favor of the State
for the recovery of pecuniary j)enalties for any violation of
statutes for the protection of its revenue, or other inunici])al
CONSTITUTIONAL POSITION AND POWERS OF STATES 315
laws, and to all judgmenls for such penalties. If this were not
so, all that would be necessary to give ubiquitous effect to a
penal law would be to put the claim for a penalty into the shape
of a judgment." ^ The fact that each State's authority comes
to an end at its own boundaries and that its laws are without
force in another State becomes particularly important in con-
nection with violations of its criminal laws. " A crime is to
be punished if committed against the laws of a State only within
the Hmits of that State, and the courts of another State cannot
take cognizance of such a crime for purposes of punishment ;
nor has any State the authority to send its officers into another
State for the purpose of arresting and bringing back a fugitive
from justice, save as provided by the federal constitution." ^
Under the constitutional regulation it is the duty of the execu-
tive of a State to which a criminal has fled to dehver him, upon
proper request, to the executive of the State in which the crime
was committed. It is a noteworthy fact, however, that there
is no way to compel the performance of this duty. It is for
the Governor of a State, and, under the accepted rule, for him
alone, to say whether a fugitive from justice shall be delivered
up. If extradition is refused, the State requesting it has no
redress. Congress has by law regulated the extradition of
criminals, but no remedy is provided in case of a refusal to sur-
render the accused person. Neither by State nor national
judicial process can a governor be compelled to act. If he takes
action, however, this may be reviewed by the courts.
That the commonwealths of the Union do not have toward
one another the status of sovereign foreign states is made clear
by the absolute denial by the Constitution of their right to
enter into any treaty, alliance, or confederation, and by the
requirement that no State shall, without the consent of Congress,
form any agreement or compact with another State or with a
foreign power. As far as treaties with foreign powers arc con-
cerned, and participation by the States in the control of inter-
national relations, these constitutional provisions are wholly
unnecessary, because the management of the nation's foreign
relations rests exclusively with the national government. The
absolute prohibition of alliances or confederations among the
■ Wisconsin v. Pelican Insurance Company, 127 U. S. 265 (1888).
* McCIain, " Constitutional Law in the United States," Second Edition, p. 269.
3i6 coMPARj\Ti\i'; iRi-:i-: ciovkrnment
States, and the introduction of the qualifying clause, " without
the consent of Congress," with respect to compacts or agree-
ments, are points which deserve some emj:»hasis. The effect
of the two provisions is to make it possible for the States, if
they have the approval of Congress, to enter into compacts
with one another, providing such compacts do not constitute
aUiances or confederations, as those terms are used in political
language.' The political significance of the compact is what
brings it under the restriction, for the Supreme Court has held
that there are some things which may be the subjects of agree-
ments which may be entered into without the consent of Con-
gress. As illustrating these, the court suggests that it would
be the height of absurdity to hold, for instance, that States
threatened by the spread of deadly diseases could not unite to
provide means to prevent disaster without first obtaining the
consent of Congress, which might not at the time be in session.
It goes on to say that " it is evident that the prohibition is
directed to the formation of an\- combination tending to the
increase of political power in the States, which may encroach
upon or interfere with the just supremacy of the United States." ^
The object of the restriction is, thus, to prevent the States,
through agreements among themselves, from undermining na-
tional authority. The power of the Nation must be maintained
intact. Its supremacy in the sphere set for it by the Constitu-
tion is neither to be fiut'stioned nor interfered with.
Relation between States and Nation. — ^ In this connection
it is proper to call attention to \hv obligation which the States
are under to accord full respect to the agencies and organs of
the federal government. The functions of the latter are per-
formed through its own officers, who are not to be interfered
with in any way by action of a State. It is to be remcmljcrcd
that though the powers of the federal government arc limited in
number, yet in the case of each one of these powers its authority
is absolute. This means that the States may not hinder the
national go\'ernment in the utili/.ation of its powers or federal
officers in the discharge of liicir ofTicial duties. The agencies
created by the federal go\'ernimnt for the |)erforniance of its
work under the Constitution cannot be subject to the control
• Willouxhliy, " Cunstilutional Law of the United States," \'ul. 1, p. 2S5-
' VirKinia v. Tennessee, 148 U. S. 503 (i8yj).
CONSTITUTIONAL POSITION AND PO\\'ERS OF STATES 317
of any State or group of States. If such control could be exer-
cised, efficiency in national administration would be impossible.
For illustration, the States may not tax the instrumentahties
of the federal government. This was settled by the Supreme
Court in the well-known case of McCulloch v. Maryland, in
which the principle of non-interference with federal agencies
was definitely asserted. In the words of the court: "If the
States may tax one instrument employed by the government
in the execution of its powers, they may tax any and every
instrument. They may tax the mail ; they may tax the mint ;
they may tax patent rights ; they may tax the papers of the
custom-house ; they may tax judicial processes ; they may
tax all the means employed by the government to an excess
which would defeat all the ends of government. This was
not intended by the American people. They did not design
to make their government dependent on the American States."
The general principle of non-interference with federal agencies
by the States is given emphatic expression in the statement of
the court's conviction that " the States have no power, by taxa-
tion or otherwise, to retard, impede, burden, or in any manner
control the operations of the constitutional laws enacted by
Congress to carry into execution the powers vested in the gen-
eral government." '
On the other hand, the federal government may not interfere
with the officers or agencies of the States in the performance of
duties which come within the constitutionalpowers of the States.
The same reasoning which leads to the conclusion that the States
may not interfere with the Nation in its work, leads to the con-
clusion that the Nation may not hinder the States. The effi-
ciency of the States in the discharge of their constitutional
functions is dependent upon their freedom of action. For the
Nation to tax or otherwise burden the agencies of the States
would be to undermine, if not destroy, the States themselves;
yet the existence of the States is essential to the existence of
the Nation, and in impairing them, the Nation would be doing
injury to itself. The argument may be stated again in the words
of the Supreme Court : " If the means and instrumentalities
employed by that [the general] government to carry into oper-
ation the powers granted to it are, necessarily, and, for the
I 4 Wheaton 316 (1819).
3l8 COMPAR-\TIVE FREE GOVERNMENT
sake of self-preservation, exempt from taxation by the States,
why are not those of the States depending upon their reserved
powers, for hke reasons, equally exempt from federal taxation?
Their unimpaired existence in the one case is as essential as in
the other. It is admitted that there is no express provision in
the Constitution that prohibits the general government from
taxing the means and instrumentalities of the States, nor is
there any prohibiting the States from taxing the means and
instrumentalities of that government. In both cases the exemp-
tion rests upon necessary imphcation, and is upheld by the great
law of self-preservation, — as any government, whose means
employed in conducting its operations, if subject to the con-
trol of another and distinct government, can only exist at the
mercy of that government. Of what avail are these means
if another power may tax them at discretion? " '
The constitutional position of the States thus invohos a
large sphere of independent action and freedom from national
interference in the performance of their legitimate functions.
But this independence is not without restriction. The States
are under the same obligation to respect the authority of the
Nation as the latter is to respect their authority. Without the
States, the Nation would perish ; without the Nation, the States,
though they might continue to live, would be weak and in-
efficient.
REFERENCES
Beard. American Government and Politics, Edition 1914, Chap. XXIT.
Bryce. The American Commomcealtli, IMition 1910, Vol. I, Chaps. XXXVI,
XXXVII, xxxviir.
Cooi.KY. Constitutional La'u% Chaps. X, XI.
McClain. Constitutional Law in the United States, Cha[). XXXIII.
^Collector V. Day, 11 Wallace 113 (1871).
CHAPTER XXV
The States — Suffrage and Citizenship
The point has been made that the federal government carries
on its work through its own officers, and is not dependent on
the States for the performance of its functions. This is quite
true, yet it could not Hve without the States, and in certain
respects is wholly dependent upon them. The voting privilege,
for instance, is under the control of the States, yet members of
both houses of Congress are chosen by popular vote. The right
of suffrage is not held under national authority; the Nation
has nothing to say as to who shall vote and who shall not. The
only regulations in the federal Constitution relating to suffrage
are those found in the fourteenth and fifteenth amendments,
which were enacted as a result of the aboHtion of slavery. In
the first of these it is provided that if the right to vote for presi-
dential electors, members of Congress, State executives and
legislative officers, is denied in any State " to any of the male
inhabitants of such State, being twenty-one years of age, and
citizens of the United States, or in any way abridged, except
for participation in rebellion, or other crime," the basis of repre-
sentation in the Congress shall be reduced " in the proportion
which the numl^er of such male citizens shall bear to the whole
number of male citizens twenty-one years of age in such State."
In the second it is provided that the right of citizens of the
United States to vote shall not be denied or abridged, either
by the United States or by any State on account of race, color,
or previous condition of servitude. These amendments were
adopted soon after the Civil War and were clearly designed to
protect the Negroes in the enjoyment of their newly acquired
rights. They in no sense deprive the States of control over
suffrage. It is for the States to say, subject to the restrictions
noted, who shall vote and what franchise tests shall be estab-
lished. They may provide property qualifications for voting
319
320 COMPARATIVE FREE GOVERNMENT
if they wish, although requirements of this nature have been
almost entirely done away with. They may confer suffrage
upon women, as a number of them have done, or upon alien
residents who have not yet become naturalized citizens under
federal law.^
Suffrage and National Elections. — The point of interest to
take note of here, from the standpoint of the Nation, is that the
right to vote at State elections, resting wholly upon State law,
carries with it the right to vote at all elections of national offi-
cers. In the case of members of the House of Representatives,
the only national officers made elective by the original Consti-
tution, it was provided that the electors participating in their
election should have " the qualifications requisite for electors
of the most numerous branch of the State legislature." Uni-
formity in the franchise qualifications in the several States
is manifestly not required. Each State may do as it pleases,
subject only to the requirements of the fifteenth amendment.
Women may vote in one State, for instance, and be debarred
from voting in another. If they are permitted to vote for
members of the " most numerous branch " of the State legis-
lature, they may vote for members of Congress. The right of
women to vote for presidential electors, however, does not fol-
low the right of suffrage for members of the State legislature.
Under the Constitution the method of selecting presidential
electors is left wholly to the legislatures of the States. Their
selection by popular vote is not required. Consequently it
is entirely permissible for the legislatures to admit women to
the suffrage for local and State officers and deny them jxirtic-
ipation in the choice of presidential electors.
It is obvious that the Nation does not i)()ssess an entirely
complete government of its own; that in vital respects it is
dependent ui)on the States. Two of its great (lei);uimenls,
in fact, the executive and the judicial, would fall to the ground
at once if the Stales failed to perform the functions expected
of them. If the State legislatures were to make no }M-ovision
for the sclertion of presidential electors, there would be no con-
stitutional inclliod of choosing a President; and the federal
• In some Stages sufTragc has been conferred upon aliens who have declan-il ihcir
intention to become citizens but have not yet taiten out their final papers, ;in(l,
therefore, arc not yet naturalized citizens.
THE STATES — SUFFRAGE AND CITIZENSHIP 321
judiciary is dependent upon executive appointment of the
judges. It is difficult to see what remedy would He with the
federal government. Practically, of course, such a situation
would never develop, but the constitutional possibility of it
shows the peculiarly close and vital connection between the
States and the Nation.
Before passing from the subject of suffrage, two additional
facts need to be brought out. The first is that the possession
of the voting privilege in one State does not mean necessarily
its possession in another State. This naturally follows from
the fact, previously discussed, that the laws of a State are with-
out force beyond its own boundaries. Each State protects
the electoral franchise by residence and registration require-
ments, and otherwise, as it sees fit. No State is under obliga-
tion to admit a person to the suffrage because he has enjoyed
that privilege in some other State. The second fact, to be
noted, as the foregoing discussion intimates, is that the partici-
pation in the election of public officers is not recognized as a
natural right, nor is it looked upon as a necessary element in
citizenship. According to ordinary usage, this is commonly
spoken of as a right, but like the so-called right to hold office,
it is merely a privilege conferred upon individuals by authority
of the commonwealth.^ The electoral franchise is conferred
upon no one by the federal Constitution. Of course, this privi-
lege conferred upon a person by State law becomes his legal
^ Minor v. HapperscU, 21 Wallace 162 (1875). I'^ this case, in addition to the
question of citizenship, the point was raised that a State, in which women of proper
age are debarred from voting, does not maintain a republican form of government
as is required by the Constitution. This contention the Court denies. "The
guaranty is of a republican form of government. No particular government is
designated as republican, neither is the exact form to be guaranteed, in any manner
especially designated. Here, as in other parts of the in.strument, we are compelled
to resort elsewhere to ascertain what was intended. The guaranty necessarily
implies a duty on the part of the States themselves to provide such a government.
All the States had governments when the Constitution was adopted. In all, the
people participated to some extent, through their representatives elected in the
manner specially provided. These governments the Constitution did not change.
They were accepted precisely as they were, and it is, therefore, to be presumed that
they were such as it was the duty of the States to provide. Thus we have un-
mistakable evidence of what was republican in form, within the meaning of that
term as employed in the Constitution." The Court then goes on to show that in
these States the suffrage was not conferred upon women, and not even upon all
men, and concludes: "Under these circumstances it is certainly now too late to
contend that a government is not republican, within the meaning of this guaranty
in the Constitution, because women arc not made voters."
Y
322 COMPARATIVE FREE GOVERNMENT
right, as long as the law stands and he meets the law's require-
ments. In such circumstances his right to exercise the privilege
conferred on him by the law cannot be questioned. The law,
though, may be changed whenever and however the State
pleases, except only as restrictions are imposed by the fifteenth
amendment.
Citizenship. — The question of citizenship in the United
States is one of pecuhar interest. Both the States and the
Nation are involved in it. There is a citizenship of the State
and a citizenship of the Nation. The two are not identical.
One may be a citizen of the United States without being a
citizen of a particular State. The rule of the Constitution is
contained in one of the provisions of the fourteenth amendment,
as follows : "All persons born or naturaHzed in the United
States, and subject to the jurisdiction thereof, are citizens of
the United States and of the State wherein they reside." This
makes it impossible for a State to deny State citizenship to any
citizen of the United States who acquires a permanent residence
within it. The acquiring of this residence is necessary, however,
although there is no particular term of residence prescribed.
" A State may require residence for a specified period as a
condition for enjoyment of the elective franchise ; but the mo-
ment that residence in a State by one who is a citizen of the
United States commences, or the moment one who resides
in'a State acquires citizenship in the United States, that mo-
ment such person becomes a citizen of the State. By residence
is meant, not merely a temporary abiding within the State,
but residence in a legal sense, that is, a permanent residence.
The term in this connection is synonymous with domicile and
involves residence in fact, with intent that it shall continue until
subsequent removal with the intent of abandoning such resi-
dence and acquiring another." '
Until the enactment of the fourteenth amendment the Consti-
tution was silent as to the meaning of the term " citizenship,"
whether of a State or of the United States. The word " citi-
zen " was used, but it was not defined. An eminent writer
asserts that before the adoption of the fourteenth amendment,
the Supreme Court was inclining to the view of the leaders of
the States' rights party who held that citizenship of the United
1 McClain, " Constitutional Law in the United States," Second Edition, p. 276.
THE STATES — SUFFR.\GE AND CITIZENSHIP
323
States was merely a consequence of citizenship in some State,
as was indicated by the decision in the famous Dred Scott case
in which the position was taken that a Negro could not be a
citizen either of a State or of the United States. He says that
this amendment reversed the previously estabhshed rule.
" According to it, citizenship is primarily of the United States ;
and secondarily and consequently, of the locaHty in which the
citizen of the United States may reside. Citizenship, both of
the United States and of the commonwealths, is thus conferred
by the constitution of the United States and the laws of Con-
gress made in accordance therewith. The commonwealths
can neither confer nor withhold citizenship of the United States.
A citizen of the United States is now, ipso jure, a citizen of the
commonwealth in which he fixes his residence ; and if any com-
monwealth should undertake to defeat the spirit of this pro-
vision by the enactment of hostile laws in regard to the gaining
of residence within its Hmits, any individual suffering injury
from the same may invoke the interpretation of the term resi-
dence by the United States judiciary, and the aid of the general
government in the protection of his Hberty under this inter-
pretation." 1
Citizenship by Birth. — Under the constitutional provision,
citizenship is acquired either by birth or by naturalization.
Though the language of the provision is simple, many diffi-
culties have been encountered in applying it to different classes
of cases, particularly those involving citizenship by birth. The
fact is that cases may arise which are not within the constitu-
tional provision. A detailed discussion of these cannot here
be given, but two or three illustrations may be cited. For in-
stance, the citizenship status of children born abroad of parents
who are citizens of the United States is not determined by the
Constitution. They are not subject to the jurisdiction of the
United States. By act of Congress, however, passed in 1855,
before the fourteenth amendment was added to the Constitu-
tion, — a law which is still in force, — such children are declared
to be citizens by birth if their fathers are citizens of the United
States. Likewise, the status of alien women married to citi-
zens of the United States is not covered by the provision, al-
though by law citizenship is conferred upon them if they are
1 Burgess, " Political Science and Constitutional Law," Vol. I, p. 219.
324 COTklPARATIVE FREE GOVERNMENT
capable of naturalization. Cases have been determined by
the courts involving the citizenship rights of children born in
the United States of parents who are not citizens. The general
rule is that if the parents are subject to the jurisdiction of the
United States, the children are citizens by birth. For instance,
it has been decided, that although the subjects of China cannot,
under the laws in force, become citizens, the children of Chinese
parents who have a permanent residence in the United States
are citizens by birth. ^ An exception to this rule seems to be
made with respect to children born in the United States of
foreign parents who are residing in that country only tempo-
rarily, notwithstanding the fact that such parents, except in
the case of representatives of foreign nations to whom the inter-
national rule of extra-territoriality applies, are within the juris-
diction of the United States. With a child of such parents an
option or right of choice is recognized. If he remains in the
United States until of sufficient age to exercise an inteUigent
choice, he may claim citizenship by birth. If, however, he is
taken by his parents to the country of which they are subjects,
and his choice is to remain there, he becomes an alien to the
United States, notwithstanding the fact that he was born in
that country. 2 Other cases have arisen from time to time, and
been passed upon Ijy the courts, in which dilliculties not men-
tioned here have been involved; Ijut the ones suggested are
sufficient to show that the constitutional provision is not all
inclusive.
Citizenship by Naturalization. — The other method of ac-
quiring citizcnsliip, that of naturalization, lies wholly witliiii
the control of the national government. By the Constitution
Congress is given power to " establish an uniform rule of nat-
uralization." The States are not specifically denied the power
to set up naturalization rules of their own, but, of course, by
implication, the authority of Congress is necessarily exclusive,
else it could not establish a uniform rule throughout the Nation.
By act (jf Congress a general naturalization law has been pro-
vided which i)rfscribes the procedure which an alien must ob-
serve in order to become a citizen of the United States, and,
therefore, of tiie State in which he resides. It is to be noted
> United Stales v. Wong Kim Ark, 160 U. S. 64g (1898).
■■«McClain, " Constilulional Law in Ihc United States," Second Edition, p. 278.
THE STATES — SUFFRAGE AND CITIZENSHIP 325
that the authorization of Congress to impose a uniform rule
does not mean that the same rule must apply to all classes of
aliens. The uniformity feature of the constitutional provision
applies only to the operation of the law in the several States of
the Union. It is fully within the power of Congress to restrict
the privilege of naturahzation to whatever races and nationali-
ties it may think best, and to enact special laws for special
classes of ahens, if it so wishes. Under the general law, as it
stands, only white persons and members of the African race
can be naturalized. The Chinese, Japanese, and all colored
persons except Negroes, are excluded. The exclusion of the
Chinese has, in addition, been made the subject of special legis-
lation. It must be kept in mind, though, that with respect to
all persons excluded by law, whether general or special, the
restriction applies only to naturahzation and does not prevent
the acquiring of citizenship by birth. As previously pointed
out, the children of parents who permanently reside within
the jurisdiction of the United States, are citizens by birth, even
though the parents themselves cannot become citizens. Also,
it should be repeated, the enjoyment of pohtical privileges, such
as voting, holding office, and serving on juries, is not involved
in the question of naturahzation or citizenship. The latter
Hes within the province of the Nation, while the former is to be
determined by each State for itself. Furthermore, the fact
should be mentioned that the regulation of the naturalization
of aliens is not confined to statutes enacted by Congress ; this
may be accomplished by treaties, as well, whether the purpose
be exclusion from or admission to the privilege of naturalization.
Treaties, by express provision of the Constitution, are a part of
the supreme law of the land and are binding upon all of the
States, as well as upon the Nation. Obviously the question
of expatriation, both of aliens desiring to become citizens of
the United States and of citizens of the United States who wish
to become citizens of other countries, is a proper subject for
treaty negotiations.
"What Citizenship Means. — The meaning of. citizenship of
the United States, with respect to the privileges conferred by
it, is still to be touched upon. Though citizenship does not
carry with it pohtical privileges, yet it involves rights and privi-
leges, both at home and abroad, which are of fundamental
326 COMPARATIVE FREE GOVERN^IENT
importance. A citizen traveling or temporarily residing abroad
is entitled to the protection of the United States in the enjoy-
ment of his rights under international rules and treaty provisions
which may have been established. Of course, such citizen
is subject to the I'avvs of the foreign state, for the time being,
and must accord them proper respect and obedience ; but it is
the business of the United States to see that he is not subjected
to discrimination and unfair treatment. In regard to the privi-
leges of citizenship at home, the Constitution of the United
States gives certain fundamental guaranties. The provisions
of the so-called Bill of Rights, or first ten amendments to the
Constitution, are here involved, as well as that clause of Article
IV which guarantees to the citizens of each State " all the privi-
leges and immunities in the several States " and that part of
the fourteenth amendment which says that no State " shall
make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States." The prohibitions
of the first ten amendments apply to the national authority,
while the others mentioned apply to the States. Precisely what
privileges and immunities are guaranteed against State inter-
ference cannot be stated. Some things, however, are clearly
included and have been passed upon by the Supreme Court,
although the attempt has not been made to define the phrase
specifically. Some brief excerpts from the Court's decisions
may be used to show what is involved. In a leading case,
calling into question the force of the provision that the citizens
of each State are entitled to all the privileges and immunities
of citizens in the several States, these words are used : " It
was undoubtedly the object of the clause in question to place
the citizens of each State upon the same footing with citizens
of other States, so far as the advantages resulting from citi-
zenship in those States are concerned. It relieves them from
disabilities of alienage in other States ; it inhibits discriminating
legislation against them by other States; it gives them the
right of free ingress into other States, and egress from them;
it insures to them in other States the same freedom possessed
by the citizens of those States in the acquisition and enjoy-
ment of proi)erty and in the jnirsuit of happiness ; and it secures
to them in other States the equal protection of their laws." '
' J'aul V. Virginia, 8 Wallace i68 (1868).
THE STATES — SUFFRAGE AND CITIZENSHIP 327
In another case involving the same clause of the Constitution
the court declared itself as follows: "Attempt will not be made
to define the words ' privileges and immunities,' or to specify
the rights which they are intended to secure and protect, beyond
what may be necessary to the decision of the case before the
court. Beyond doubt, those words are words of very compre-
hensive meaning, but it will be suf3&cient to say that the clause
plainly and unmistakably secures and protects the right of a
citizen of one State to pass into any other State of the Union,
for the purpose of engaging in lawful commerce, trade, or busi-
ness, without molestation, to acquire personal property, to take
and hold real estate, to maintain actions in the courts of the
States, and to be exempt from any higher taxes or excises than
are imposed by the State upon its own citizens." ^ And in the
famous Slaughter House Cases," decided in 1873, the Supreme
Court discussed the meaning of the " privileges and immuni-
ties " clause of the fourteenth amendment. It does not try to
state the exact meaning of the clause, but merely calls atten-
tion to some of the rights included. Among these are the rights
of the citizen to visit the seat of government for the purpose of
transacting business with it or seeking its protection ; to have
free access to the Nation's seaports and to the courts of justice ;
to demand the care and protection of the federal government
over his life, liberty, and property when on the high seas or
within the jurisdiction of a foreign government; peaceably to
assemble and petition for redress of grievances ; to use the
navigable waters of the United States ; to become a citizen of
any State of the Union, upon acquiring a legal residence, with
the same privileges as the other citizens of that State. Other
rights are enumerated, but need not be given here ; those already
mentioned are sufficient to show that the privileges and immuni-
ties enjoyed by citizens of the United States are of fundamental
importance, even though political privileges are not included.
They also show clearly that the fourteenth amendment, which
definitely placed the whole (juestion of citizenship under na-
tional control, has imposed far-reaching restrictions upon the
States. It is unnecessary in this place to discuss all of the pro-
visions of this amendment and their effect upon the powers of
the States, but it may be said that the restrictions involved m
' Ward V. Maryland, 12 Wallace 418 (1871). « 16 Wallace 36.
328 COMPARATI\'E FREE GOVERNMENT
the privileges and immunities clause, great as they are, are
by no means all that are imposed. Indeed, as affecting State
powers, the clauses which immediately follow, providing that
no State shall deprive any person of life, liberty, or property,
without due process of law, nor deny to any person within its
jurisdiction the equal protection of the laws, are probably of
still more vital significance. Though these provisions were
apparently designed to protect the Negroes in the enjoyment
of constitutional rights acquired by the overthrow of slavery,
it is behind them that corporations, in their capacity of legal
persons, have sought and found shelter against much restric-
tive legislation by the States. Multitudes of cases have arisen
involving the rights of corporations under the fourteenth amend-
ment and many attempts of the States to regulate corporate
activities and management have been thwarted b}^ action of the
federal courts. Corporations are not entitled to the privileges
and immunities of citizenship, but they, together with natural
persons, come in for full protection under the " due process "
and " equal protection of the laws " provisions. As has been
the case in other matters, the development in connection with
citizenship, particularly that growing out of the fourteenth
amendment, has resulted in an expansion of national power
and a restriction upon that of the States.
REFERENCES
BuRGKSS. Political Science and Constitutional Laiv, Vol. I, pp. 218-232.
CooLEY. Constitutional Law, Chap. XIV.
CooLicY. A Treatise on Constitutional Limitations, Chaj). X\'ll.
McClain. Constitutional Law in the United States, Chaps. XXXIV, XXXV.
RicHMAN. "Citizenship of United States," Political Science Quarterly, Vol.
V, p. 104.
Van Dyne. Citizenship of the United Stales.
CHAPTER XXVI
The States — Police Power and Control over Local
Governments
The various references that have been made to the restric-
tions upon the States and to the relative decline of their powers
are not to be interpreted as suggesting that the States are un-
important political organizations, with insignificant functions.
Nothing could be farther from the intention of this discussion,
or more at variance with the truth. The States are not only
essential to the existence of the Union, but they exercise powers
of the highest rank and perform functions that are absolutely
necessary for the orderly on-going of society. And these powers
they have, not by sufferance from the national government,
but of their own right. Moreover, they are to be used as each
State sees fit, subject only to the restrictions of the federal
Constitution. It is necessary merely to mention that those
great powers of government called police powers, and that the
entire control of all local governments and their functions, rest
with the States, to indicate how vital the States are in the
government of the American people. Brief comment upon
the police power and the relation of the States to the local
governments is desiral)le.
Significance of Police Power. — It is not necessary to try to
define specifically what is meant by the poUce power of the
States ; indeed, no precise, authoritative definition of the term
has been developed. All that is needed here is to indicate
roughly its nature and scope, and thus make clear one of the
supremely important functions of the States. The broad,
fundamental significance of this power is suggested in these
words by the Supreme Court : " But what are the police powers
of a State? They are nothing more or less than the powers of
government inherent in every sovereignty to the extent of its
dominions. And whether a State passes a quarantine law, or
329
330 COMPARATIVE FREE GOVERNMENT
a law to punish offenses, or to establish courts of justice, or
requiring certain instruments to be recorded, or to regulate
commerce within its own limits, in every case it exercises the
same power; that is to say, the power of sovereignty, the
power to govern men and things within the limits of its domin-
ion. It is by virtue of this power that it legislates. . . ." ^
Considered in this broad sense, the poUce power is utiUzed in
the prevention and punishment of crimes, the control of private
conduct, the regulation of the ownership, use, and management
of property, the promotion and maintenance of public educa-
tion, the prevention of vice and immorality, the promotion and
protection of health, the regulation of domestic relations, the
control of the relations between employer and employee, the
protection of individuals against fraud, oppression, and in-
justice ; in short, through the exercise of this power, the " whole
of the ordinary field of law " comes within the control of the
States. It is through it that the States possess " all the ordi-
nary legal choices that shape a people's life." -
But a narrower and perhaps more accurate interpretation of
the police power is frequently made, namely, that it is the power
used by the Stales for the promotion of the public welfare
through the establishment of restraints and regulations upon
the use of liberty and property. " The police power restrains
and regulates, for the promotion of the pubhc welfare, the
natural or common liberty of the citizen in the use of his per-
sonal faculties and of his property." •"* Much of the protection
of liberty and of property, and many of the limitations upon
each of these, the purpose of which is the advancement of the
public welfare, are found in the common law which prevails in
the Stales. " But no community confines its care of the public
welfare to the enforcement of the principles of the common law.
The State places its corporate and proi)rietary resources at the
disposal of the public by the estal)lishment of imj:)rovements
and services of different kinds; and it e.xercises its compulsory
powers for the i)revention and anticipation of wrong by narrow-
ing common law rights through conventional restraints and
positive regulations which are not confined to the prohibition
of wrongful acts. It is this latter kind of state control which
' I.icensc Cases, 5 Howard 504 (1846). •Above, p. 7-
'Freund. "The Police I'ower," p. 17.
THE STATES — POLICE POWER 331
constitutes the essence of the poHce power. The maxim of
this power is that every individual must submit to such re-
straints in the exercise of his liberty or of his rights of property
as may be required to remove or reduce the danger of the abuse
of these rights on the part of those who are unskillful, careless
or unscrupulous." ^
A word more should be added concerning the pohce power
in relation to the courts and judicial control over property.
The significance of this relationship is brought out in a stimu-
lating way by Professor Ely, who argues that " the essence of
pohce power is social control over property," ~ and whose state-
ment concerning the nature of the police power, according to
the modern acceptation, is here reproduced. In this, emphasis
is placed upon its judicial character. Says Professor Ely:
" The pohce power is regarded as primarily a legislative power,
and it is true that legislative bodies provide in their enactments
materials for the work of the courts. But the legislative power
has no inherent limitations, and as in all lands, so in the United
States, it goes without saying that legislatures are presumed
to seek the public good only. What is pecuhar in the United
States is that controlling influence of courts given them by
American Constitutions ; this peculiarity has given rise to the
modern use of the term ' police power.' As a peculiar insti-
tution, the police power is essentially judicial, and it is as a
judicial power that it requires discussion in the present con-
nection; and from this point of view we may define it as fol-
lows: The police power is the power of the courts to interpret
the concept property, and above all private property ; and to
estabhsh its metes and bounds. The judges, in their decisions
upon the accordance of legislative acts with written Consti-
tutions, tell us what we may do with property or what acts bear-
ing on property are allowable. The police power shapes the
development of the social side of property. It tells us what
burdens the owner of property must bear without compensa-
tion. . . . Many efforts have been made to define police
power, but . . . from the economic point of view, so far as
property is concerned, it is essentially the power to interpret
1 Freund, "The Police Power," p. 6.
2 Ely, " Property and Contract in their Relations to the Distribution of Wealth,"
Vol. I, p. 225.
332 COMPARATIVE FREE GOVERNMENT
property and especially private property and to give the con-
cept a content at each particular period in our development
which fits it to serve the general welfare. The police power
means the general welfare theory of property. It signifies the
' principle of public poHcy ' with respect to property. This
idea above all others gives unity to the concept of police power." ^
An important fact to be borne in mind is that the police
power is not negative merely in its effect, but is also definitely
positive ; it not only says what shall not be done with property,
in the interest of the general welfare, but also declares what
shall be done. In this connection Professor Ely quotes the
words of Mr. Justice Holmes of the United States Supreme
Court : " The poHce power extends to all the great public
needs. It may be put forth in aid of what is sanctioned by
usage, or held by the prevailing morality or the strong and
preponderant opinion to be greatly and immediately necessary
to the public welfare." ^ Although the police power is not
confined to the regulation of property, real difficulty is not
encountered in its exercise except where property and economic
relations are concerned. " No one objects to general benevo-
lence — to doing good without cost — so when we consider
police power, its essence is the interpretation of property, and
when we consider the real essence of the jjolice power as found
in the leading American decisions, we find that it is consistent
with this concept. It is that power of the courts committed
to them by American Constitutions whereby they must shape
property and contract to existing social conditions by settling
the question of how far social regulations may, without com-
pensation, impose burdens on property. It seeks to preserve
the satisfactory development of the individual and social sides
of private property and thus to maintain a satisfactory equilib-
rium between them." •''
Further comment is harrlly necessary to show that the gov-
ernmental institution that exercises this great jx)vver and dis-
charges this elemental function of organized society, is one of
prime importance. It is in the field covered by this power
' Ely, " Property and Contr.ut in their Relations to the Distribution of Wealth,"
Vol. I, pp. 20O-207. ^ Nohlr .Sliilf Ihnik V. Haskell, 210 V. .S. no (ion).
' Ely, "Property and Contract in their Relations to the Distribution of Wealth,"
Vol. I, p. 2iO.
THE STATES — POLICE POWER 333
that the great bulk of governmental activity is found. It is
therefore through action of the States that the American citizen
comes into most immediate and most frequent contact with
governmental authority. This must continue to be true as
long as the present constitutional system is maintained. The
functions of the States, therefore, their powers and machinery
of government,' are subjects of fundamental significance, and
he who seeks to understand the American system of government
in all of its essential relationships must give a large place in
his thoughts to the States and their work.
The States and Local Government. — In the matter of local
government, the States are supreme. No authority whatsoever
is lodged in the national government over local affairs or or-
ganizations. These may not be touched or in any way affected
by national authority, unless they in some manner act contrary
to the provisions of the federal Constitution; in which case,
their acts would be set aside by judicial process, if appeal were
made to the courts. Any restraints which may rest upon a
State with respect to its control over the organization, powers,
and duties of the local governments within its limits are self-
imposed restraints. The people of a State through the State
constitution may provide for any kind of local government
they may wish. They may set up local governments which
are independent of the legislative and executive authorities in
the State government, or they may give to one or the other
of these authorities direct supervision over all local activities.
It is for the people of a State to say, if they wish, through the
State constitution, what the entire system of government, both
State and local, shall be, subject only to the requirement of
the federal Constitution that the State government itself shall
be republican in form. The relationship between the State
government and the various local governments, therefore,
may be determined specifically by the State constitution,
enacted by the people of the State according to the prescribed
method of procedure. If this relationship is not thus fixed,
however, it will ])e determined by the State legislature in what-
ever way the latter may prefer, subject, of course, to any pro-
hibitions and restrictions that may be imposed by the State
constitution. The reserved powers of a State are vested in
its legislature, except as the State constitution may forbid.
334 COMPARATIVE FREE GOVERNMENT
The right of a legislature, free from constitutional restraints,
to create new local governments or alter or aboUsh old ones,
is therefore beyond all question. In such circumstances it
has a free hand.
The local governments, whether counties, townships, towns,
cities, or incorporated towns, possess no inherent governmental
authority, but exercise only delegated powers. These powers
are derived either directly from the constitution of the State or
from the acts of its legislature. The local governments, there-
fore, can do only what they are permitted to do ; they are
not free to do as they wish, unless forbidden by State authority.
In this respect their position is radically different from that
of cities in continental Europe, which in general resemble the
American States in that they have all powers not taken from
them. They are created by the States for specific purposes
and are given the powers that are considered necessary or ad-
visable. If these prove inadequate, relief can come only
through a further grant of powers from the State. The nature
of the powers possessed by the local governments and the con-
stitutional principle which controls, are clearly shown in the
following statement by an eminent writer: "It is a general
and undisputed proposition of law that a municipal corporation
possesses and can exercise the following powers and no others :
First, those granted in exjiress words ; second, those necessarily
or fairly implied in, or incident to the powers granted ; third,
those essential to the declared objects and purposes of the
corporation — not simply convenient, but indispensable. Any
fair, reasonable doubt concerning the existence of power is
resolved by the courts against the corporation, and the power is
denied. Of every municipal corporation, the charter or statute
by which it is created is its organic act. Neither the corporation
nor its officers can do any act, or make any contract, or incur
any liability, not authorized thereby, or by some legislative
act aj)i)licablc thereto. All acts beyond the sco[)e of the powers
granted are void." '
The fact that the local authorities have only delegated powers
is one of great practical importance, both from the stan(li)oint
of legislative eflkiency in the State and adminislrative efhciency
in the local governments. As a consequence of the development
* Dillon, " Municipal Corporations," Fourth Edition, p. 145.
THE STATES — POLICE POWER 335
of multitudinous, conflicting local interests, and particularly
of the rapid growth of cities, both in number and in size, the
legislatures of the States are constantly under pressure to enact
new legislation for the benefit of the local governments and to
confer upon them additional powers. The result is that a
relatively large part of the time and thought of each legislature
is given to the consideration of problems of local government
which is needed in the determination of important questions
of State poHcy. State interests naturally suffer to a greater or
less degree. On the other hand, because of the general consti-
tutional rule against special legislation and the requirement of
State constitutions that laws must be of general appHcation, the
conflicting interests and needs of the locaUties are inadequately
provided for, to the serious impairment of the efficiency of the
local units. The natural outcome is a steadily increasing de-
mand for a larger independence, — home rule, — on the part
of the local governments. This demand is particularly marked
in the case of cities, but it is also more or less prevalent with
respect to counties. There is increasing objection to State
supervision and control in purely local affairs. In all of the
States, but, of course, in some far more than in others, the
tendency is to give to the local governments larger powers and
independence in the settlement of their own problems. It
may be expected that future years will witness fundamental re-
adjustments in the relations between State and local govern-
ments, for the question of what these relations shall be is one
of the pressing practical problems of American politics.
Nature of the State's Control. — Emphasis is to be placed on
the fact that the control which the States exercise over the
cities and other local governments is primarily legislative in
character and not administrative. The careful administrative
supervision, so common in Europe, is largely lacking, although
in recent years there has been a marked tendency to increase
the State's administrative control. The usual plan has been
to confer upon the local governments the powers considered
necessary and then allow them to use these powers pretty much
as they please, without being held accountable to established
State authority. The results of this policy have been far from
satisfactory, however, and a more centralized administrative
direction is being established in many States. Recognition is
336 COMPARATIVE FREE GOVERNMENT
growing of the idea that the vital question is not so much that
of what powers the local governments shall have, but of how they
utilize their powers. The need is for efficient supervision of
their administrative work, — a need which the States are
coming to see and to meet. The development that is taking
place is similar to that which has occurred in England ; the
legislative control is giving way, in part, and is being supple-
mented by administrative control. The result is likely to be a
system which in character stands mid-way between the extreme
legislative system, so familiar to America, and the extreme
administrative system, so common in European countries. It
is to be observed, however, that the supervision is centralized,
State supervision, whether it be of one type or the other. The
local governments have powers or do not have powers, they
are free or not free, just as the States prescribe through their
constitutions or the acts of their legislatures.
The local governments, created thus by State action and
exercising only delegated authority, have a dual function to
discharge. They are instruments for the control of local
affairs, as far as their limited powers go, and they are at the same
time agents of the State, charged with the duty of assisting in
the enforcement of State laws and in administering State affairs.
What the exact powers of any particular local government are,
depends upon the class to which it belongs. The towns and
townships do not have the same powers as the counties ; and the
powers of the counties are not identical with those of the cities.
Moreover, the cities of a State are frequently divided into
classes, according to population, each class having powers that
differ more or less from those of the other classes. As a rule,
the grant of powers is uniform to all local governments of the
same kind or class. In the case of cities, the movement for
a larger independence of State control has made much progress
in recent years, and a number of States have, by amenflments
to their constitutions, conferred upon municipalities the right
to frame their own charters, subject oiiIn' lo constitutional
requirements and the general police regulations of State law.
The same object is being sought, also, through statutory pro-
visions. Where this home rule j)rinciple is applied, the local
government, though it continues to exercise delegated power,
is freed from supervision and iDlcrfereiicc on the part of the
THE STATES — POLICE POWER 337
legislature. In this way each community can adapt its insti-
tutions to its own requirements, and carry out policies designed
to meet its own pecuHar needs.
Local Governments Agents of the State. — As agents of the
States, the local governments have important duties to per-
form. For example, their law enforcement oflScers are charged
with the enforcement of State laws. The States, as a rule, have
no regular police of their own and are dependent upon local
officers, largely, for the prevention of crimes and the punish-
ment of offenders. The conspicuous fact should be remembered,
in this connection, that local enforcement of State police regu-
lations is often far from what it ought to be. Locally elected
officers are much inclined to govern their official conduct by
the sentiment of the communities they serve. The enforce-
ment of State laws against gambhng or the illegal sale of liquor,
for instance, in a community where such offenses are winked at,
or to a degree openly approved by local opinion, is very likely
to be lax and of little result. This has become a very serious
problem, in fact, in all of the States and a growing sentiment
is discernible in favor of more stringent State supervision over
the work of law enforcement, if not the actual establishment of
a State police. In some States, the chief executive may remove
local officers for failure in this respect and in others the Depart-
ment of Justice may, through court proceedings, oust them for
cause.
But the functions of the local governments as agents of the
States are not confined to enforcing police regulations. They
are also important administrative districts of the State. Three
distinct purposes for which they are used may be cited. The
first is the administration of the revenue laws. The local units
are taxation districts, not merely for obtaining local revenues,
but also for obtaining State revenues. The State revenue
systems differ, of course, in many ways, and some have sources
of income which others do not have. Also the process of
levying and collecting taxes is by no means identical in all the
States, but the traditional practice of the States, with respect
to the general property tax, which has been the chief source of
State and local revenues, has been to intrust to the officers of
the local governments the duty of assessing the property and
collecting the taxes according to the levies made by the State
SS^ COMPARATIVE FREE GOVERNMENT
and local authorities. The funds belonging to the State, col-
lected by the local collection officer — the county treasurer
usually — are turned over, under provisions of law, to the
State treasurer and become available for the purposes to which
they have been appropriated by the State legislature. Thus
this vital function of administering the State's tax laws is to a
large extent in the hands of locally elected officers in the local
government districts, the county, township, town, and city.
Needless to say, abundant fault may be found with the manner
in which this system works. Probably no other of the States'
activities has given cause for more complaint and greater dis-
satisfaction. The extreme decentralization of revenue adminis-
tration has been the chief weakness. This has come to be so
widely understood that in recent years more than half the
States have provided for centralized supervision through
State tax commissions.
The local government units are also election districts for the
State. The county, particularly, is important in this connec-
tion. In fact, the county in most States is the real election
district. Some of its officers, in general, are responsible for the
administration of the election laws. Ballots are printed under
their direction. The returns from the townships, wards, or
other election precincts are sent to the proper county officers
to be canvassed officially. This applies not merely to the
election of county officers, but to the election of all State officers.
United States Senators, and presidential electors. Election
expenses are provided for out of county funds. The county is
the usual unit of representation in the State legislature, and it
is by a grou{)ing of c(junties, except in the large cities, that the
larger election districts, such as congressional districts, are
formed. Elections are under the strict control of the States,
except as Congress has prescribed regulations which must be
observed in the election of national officers, and are conducted
according to a i)r()ccdure refiuircd by Stale law. The counties
and the smaller election precincts, as far as State elections are
concerned, are merely State administrative agents.
Likewise, the local governments are districts for the adminis-
tration of justice. And here, again, the county is the district
of most consequence. In all the States there are courts of
general civil and criminal jurisdiction in the counties, which
THE STATES — POLICE POWER 339
hold regular sessions as required by State law. These courts
are parts of the State judicial system, but their administrative
officers are county officials receiving compensation from the
county funds. The sheriff of the county, and the county at-
torney, or, as he is frequently called, the district attorney, are
officers of these courts, though they are usually chosen by the
voters at the polls, and are the county's chief agents in the en-
forcement of the laws. The grand juries which bring indict-
ments before these county or district courts are county bodies,
with authority to consider only offenses which are committed
within the limits of the county. In short, these courts, though
they may not be known as such, are really county courts, and
the records of their work are kept at the county seat, and the
expenses incurred by them are paid out of county funds. The
minor justice of the peace courts and various municipal courts
in the larger cities are also agencies of the State in enforcing
the laws and administering justice. The State depends in large
measure upon its administrative divisions and subdivisions for
the maintenance of law and order.
Further discussion is not necessary to show the relationship
of dependence which exists between the State and the local
governments. The latter exist only at the will of the former ;
their powers and duties are what the States prescribe. And the
States have chosen to depend upon the local governments for
the discharge of functions which are vital to their own existence.
REFERENCES
Beard. American Government and Politics, Edition 1914, Chaps. XXVII,
PP- 579-584, XXIX.
Bryce. The American Commonwealth, Edition 1910, Vol. I, Chaps. XL\'III,
XLIX, LII.
CoOLEY. A Treatise on Constitutional Limitations, Chap. XVI.
Ely. Properly and Contract in their Relations to the Distribution of Wealth,
Vol. I, Chap. VII.
Fairlie. Local Government in Counties, Towns, and Villages.
Freund. The Police Power.
GooDXOW. City Government in the United States, Chaps. II, IV, V.
GooDNOW. The Principles of the Administrative Law of the United States,
Pook III, Chaps. I, II, III, IV.
MuNRO. The Government of American Cities, Chnps. Ill, IV.
Young. The New American Government and its V.'"rk, Chap. XXIV.
CHAPTER XXVII
State Legislation
The governments of the States are very much alike in their
general outlines, but are dissimilar in many details of organiza-
tion and procedure. This fact makes the task of describing
them in general terms, within the limits of a few pages, one of
some difficulty. To present an outline of the governmental
system of any one State would be a simple task, but to let
such outline stand as representative of the governments of the
other forty-seven States, would be to ignore essential differences
among them, particularly in administrative organization, and
to imj)])- a degree of uniformity which does not exist. It is
desirable, therefore, briefly to discuss the State governments
in terms which, in general, will apply to all alike. The purpose
here is not to give a detailed treatment of the State organiza-
tions, but merely to describe their essential characteristics,
suggest some of the important developments that have taken
place, and indicate the manner in which the States are dis-
charging their functions as members of the American Republic.
Uniformity Among State Institutions. — The tendency of the
States to copy the laws and institutions of one another has
already been briefly commented upon. This is both a signifi-
cant and a natural tendency. As new regions were settled and
flevelojied by the pioneers who pushed on to the westward from
the older States, it was inevitable that the j)olilical institutions,
which in time were established, should be i)atterned after the
institutions which had existed in the States from which the
settlers came. This is the case with the local governments as
well as those of the States ; perhaps it is even more the case
with them, since the first governments set up in the frontier
regions were purely local in character. When ihe time came to
seek membership in the Union and organize as a State, the
logical thing in the drafling of the new constilutiou was to
340
STATE LEGISLATION 34 1
provide for a framework of government substantially identical
with those of the older States. Moreover, it is to be remembered
that the original States, when they became independent com-
monwealths and estabHshed the Union, retained practically the
same organizations they had when they were colonies under
British rule. These, in their main outlines, were essentially
the same in all the States, the chief differences that prevailed
being found in connection with the local governments. Con-
sequently there was a long experience with a fairly uniform
scheme of State government, which had given general satis-
faction, to be drawn upon by the founders of new States and the
framers of new constitutions. The general success of the
familiar State institutions which this experience revealed
assured their acceptance in the newer commonwealths, and
discouraged attempts at innovation and experimentation with
untried agencies of government.
Furthermore, the influence of the national government,
which grew in strength and effectiveness as the Nation devel-
oped, tended strongly in the same direction. As we have seen,
the national government was modeled chiefly upon the govern-
ments of the Colonies and the States, and so gave additional
evidence, upon a magnified scale and in a conspicuous manner,
of the inherent worth of the institutions and the organization
of government to which American conditions and experience had
given rise. The marked influence of the States upon one another
and upon the Nation, and of the Nation upon the States, is
one of the notable aspects of American politics. Under all the
circumstances, therefore, it is not to be wondered at that there
is a high degree of uniformity in the fundamental features of
the State constitutions. Anything else, considering the
similarity of the problems which the States must meet and the
fact that their powers and functions are identical, could not
reasonably be expected. Yet there are important differences,
whose significance should not be overlooked ; and, as previously
pointed out, one of the distinct advantages of the American
federation plan is that the States have the opportunity to origi-
nate and apply new theories and methods. Though they have
utihzed this opportunity in the past only to a slight extent, yet
a tendency to make freer use of it is indicated by the events of
recent years. A few of the States, in order to make their gov-
342 COMPAR.\TR'E FREE GOVERNMENT
ernments more truly democratic and solve pressing problems
which have grown out of changed and changing industrial con-
ditions, have made radical departures in the enactment of new
legislation and the establishment of new administrative agencies.
Wisconsin, with her state insurance, income tax, and multitude
of administrative commissions, is a good example.
Development of State Constitutions. — Looking at the de-
velopment of the States from the time they gained their inde-
pendence to the present, it is seen that not only have their
institutions of government been similar, but also that their
experience with those institutions and the attitude of the
people toward them, have been strikingly similar. This may
be shown by reference to the development which has occurred
in connection with the State constitutions, and the altered
positions of the legislative and executive branches of the State
governments. This development is profoundly significant and
is directly related to some of the greatest questions now before
the people of the States.
The early constitutions were short documents which dealt
in general terms with the fundamental structure of the State
governments. They created the instrumentalities of govern-
ment, distributed powers among them, and harmonized the use
of those powers. They were essentially grants of powers to the
departments of government which they established ; they were
not codes of restrictions upon the departments. In other words,
they merely created the framework of the State governments.
Indeed, some of them were called " frames," a term suggestive
of their nature and of the intention of those who were responsible
for them.' These instruments were not designed to regulate the
conduct of private individuals, through a multitude of provisions,
but to create the machinery of government and determine the
relations among its parts. Under them the department of
government which was of highest importance was the legislature.
As compared with it, the executive department was distinctly
inferior. The executive, in fact, was largely the agent of the
legislature. To the latter was given the function of controlling
(he Stale. The inherent powers of the State, unlimited powers
of legislation, in fact, were in the hands of the legislature, except
as it was limited by the State constitution, and — after the
'Jones, "Statute Law Makins in the I'nitcd States," p. 4.
STATE LEGISLATION 343
national government was formed — by the federal Constitution.
This is the theory which was accepted at that time and which is
still accepted. When the independence of the States was
declared, their legislatures fell heir to the plenary powers of the
English Parliament, whose authority in America came to an end.
As this constitutional adjustment implies, the people had large
confidence in their State legislatures and only slight confidence
in their executives. Because of their experience with British
authorities, particularly the colonial governors, they were
distrustful of executive power. There was constant fear of
executive encroachments. Consequently, as stated, the execu-
tive held a relatively subordinate place in the State government
and the legislature was exalted as the champion and protector
of the newly acquired and dearly bought liberties of the people.
The People and the Legislatures. — This expresses the general
attitude which prevailed at the time the national government
was established, and which continued to prevail for a number of
years. But at length a change began to take place. The State
legislatures began to lose some of their prestige. Gradually
the confidence of the people in them began to wane. The great
respect shown to the legislatures in the earlier times changed to a
widespread, freely expressed disrespect. Distrust of them
sprang up, — distrust of their motives, their integrity, and their
capacity. The consequence was numerous readjustments of the
State governments and frequent revisions of State constitutions.
The outstanding feature of these revisions was the marked
restriction placed upon legislative power. At first the restric-
tions were comparatively slight, but as time passed and the
popular distrust increased, they became more numerous and
more sweeping in their effect. Upon many questions the hands
of the legislatures were tied. Powers, which formerly were
exercised without restraint, were specifically forbidden. The
sphere in which the legislature was free to work its will, un-
trammeled by constitutional restrictions, was cut down until the
legislature's position was strikingly different from what it had
been when the Union was formed. But the development did not
stop with merely placing constitutional restrictions upon the
legislature. In time the practice grew up of incorporating in the
constitutions veritable codes of laws regulating in detail all kinds
of questions which formerly had been left to the legislature's dis-
344 COMPARATI\I-: FREE GOVERNMENT
cretion. The purpose was not merely to restrain the legislature,
but absolutely to prevent action by it upon the questions covered
by the Constitution. In this way the character of the State
constitutions came to be changed. Originally they were in-
tended to express only the fundamental principles underlying
the State governments. The laws of the States, in the ordinary
sense, the details of legal regulations, were left to the legislatures
to prescribe. But under the influence of the movement which
has been described, the constitutions have come to be filled with
a multitude of details which really have no place in them, the
effect and purpose of which are to deprive the legislatures of
powers which properly belong to them. " Our later constitu-
tions have included an ever increasing body of concrete rules
drawn with some local or temporary abuse in view. By putting
the rule in the constitution it was thought to protect it against
the possibility of easy repeal should the people subsequently,
through their legislature, decide that it should be modified.
When legislators wrongly used their power, resort was had to
taking the power permanently away from them instead of taking
the legislator out of power at the succeeding election. As a
result of this process our constitutions are padded with restric-
tions, which make the legislator no longer a free agent in the
proper field of legislation and encourage resort to subterfuge by
which that may be accomplished indirectly, the doing of which
is forbidden." '
To illustrate this phase of constitutional development, writers
frequently call attention to the great length of the present State
constitutions as compared with those in the earlier times. A
few examples will be sufl5cient to show this tendency toward
expansion. Louisiana in 1812 had a constitution of twelve
pages ; the present constitution has ninety-five pages, containing
forty-five thousand words. Virginia in 1776 was content with
a constitution of four pages; that of 1902 numbers fifty-eight
I)ages. The South Carolina constitution in 177S had nine pages;
that aflof)ted in iSqc; has thirty-eight. Alabama adopted a
constitution in 1819 with eighteen l)ages; in iqoi a new consti-
tution went into effect with fifty-two pages. And llnis il is in
all the Stales where constitutional revisions Ikivl- occurred.
The newer States, those admitted in recent years, all have long
1 Jones, " bUlulc Law Makinj; in the United States," p. 5.
STATE LEGISLATION 345
constitutions. Oklahoma in 1907 accepted a constitution with
seventy-three pages, containing more than thirty-three thousand
words, while New Mexico in 191 1 adopted one with forty-sev^en
pages. This tendency to expand the constitutions is found in
all the States, though it is less in evidence in the New England
commonwealths than elsewhere, and, as pointed out, is largely
due to the desire of the people to legislate directly upon many
important questions and, by placing this legislation in the
constitutions, protect it absolutely against changes made by their
legislatures. That the general effect of this is far from good
seems obvious. The detailed " law provisions " of the con-
stitutions soon become out of harmony with the conditions they
are designed to meet, and demand alteration. This means that
constitutional readjustments are constantly being urged, — a
condition which is hardly wholesome and conducive to efficient
administration of government. And if changes are not made,
many provisions of the constitution become unsatisfactory and
ineffective, and attempts at evasion are constantly made.^
Development of the Executive. — In connection with this
constitutional development and the change in the attitude of
the people toward their legislatures, there should be noted
another equally significant fact, and that is the changing atti-
tude of the people toward their State executives. Whereas in
the beginning the executive branch of the State governments
was distrusted and held an inferior place, with greatly restricted
powers, it has come to hold relatively a high place in the public
esteem, and has acquired, through new constitutional grants,
greatly augmented powers and responsibilities. In a rough
way it may be said that as the legislatures declined, the execu-
tives grew in popular favor; as the powers of the legislatures
diminished, those of the executives increased. Reliance upon the
executive has come to characterize more and more the public
attitude. More and more the natural leadership of the executive
has come to be recognized, as has the high importance of ad-
ministrative functions and problems. This expansion of execu-
tive power and growth in executive influence are e^'idenced by
many changes in the State constitutions. Not all of the in-
• For further discussion of the growth of State constitutions and the consequences
which result, see Jones, " Statute Law Making in the United States," pp. 4-8, and
Bryce, "The American Commonwealth," New and Revised Edition, Vol. I, p. 455.
346 COMPARATIVE FREE GOVERNMENT
crease in the length of the constitutions, to which reference has
been made, is due to additional restrictions upon the legislature ;
some of it is due to new provisions imposing new duties upon
the executive, and conferring and regulating executive powers.
The shift in public sentiment which this implies, and the en-
larged sphere of executive action which has resulted from it,
constitute one of the most deeply significant developments in
American politics. And, it is well to note, this executive expan-
sion has not been confined to the States. A similar change has
occurred in the Nation. The President is vastly more powerful
now than in the beginning. Indeed, it may be said, that not a
little of the change that has taken place in the relative positions
of the legislative and executive departments of the States, is
due to the development of the President's leadership in the
Nation, and the growing confidence and satisfaction of the people
in that leadership. As executive leadership proved itself in the
Nation, the demand for it sprang up and grew in the States ; and
this demand has never been more insistent than at the present
time. All the signs point to a still larger development of admin-
istrative functions.
The general plan of the State governments is the same as that
of the Nation. There are the three departments, resting upon
a constitutional foundation, each with its own powers, its own
duties, and its own sphere of action. In the States as in the
Nation, the principle of the separation of powers is fundamental.
Consciously, and because of a firm belief in the soundness of
this principle, the people of the States have set up the three
departments and hedged them about by restrictions in order
to protect them in the enjoyment of their respective powers and
I)revent encroachments upon one another. The departments
must touch one another at certain points, of course, in order to
make the machinery of government run with reasonable smooth-
ness, but, nevertheless, each has its own work to do and must
lie free to do it without unauthorized interference by the others.
In general, the same complex system of checks and balances,
both legal and extra-legal, is to be found in the States as in the
Nation. The chief executive has his part in legislation, similar
to that f)f the President. The legislature possesses the power of
impeachment over both executive and judicial oflicers, and in
other ways may influence them, much as the Congress may do
STATE LEGISLATION 347
with national officers. The judiciary may pass upon the con-
stitutionality of the acts of the legislature, and set aside exec-
utive actions which lie outside the executive sphere, just as the
federal courts may do in the national field. By this system,
suggested here in only general words, the departments are kept
to the paths marked out for them by the State constitutions.
The relation of the departments to one another will be brought
out more in detail in the description of them given in this and
succeeding chapters. The first to be considered is the legislature.
The State Legislative Departments. — The legislatures of the
States are all of the same character, although they differ more or
less in their internal organization. Each is composed of two
houses, whose members are chosen by popular vote from districts
into which the States are divided. One house is called the
Senate, and the other, in most instances, is known as the House
of Representatives, though in a few cases it is called " The
Assembly " and in others " The House of Delegates." The
Senate is the smaller body and is frequently spoken of as
the " upper " house, while the larger body is referred to as the
" lower " house. Though the two houses are equal, coordinate
branches of the legislature, the Senate is usually more influential
than the House of Representatives, and membership in it, be-
cause of its smaller size and the fact that its members represent
larger constituencies, is everywhere considered more desirable
than membership in the lower house. The legislative powers of
the two bodies are essentially the same. Following the national
plan, the power of impeachment belongs to the House of Repre-
sentatives, while the duty of trying impeachment cases is im-
posed on the Senate. To the latter, also, as is the case with the
national Senate, is given the power to confirm many executive
appointments. The general nature of the legislative powers of
the two houses has already been discussed somewhat at length
in preceding chapters and need not be considered here. It is
to be remembered that all the original powers of government are
vested in the legislature, except as prohibitions are placed upon
it by the national and State constitutions. The powers which
the legislatures of the several States may actually exercise
depend upon the State constitutions. The national Constitu-
tion, of course, applies to all alike, but the restrictions of the
State constitutions vary a great deal.
348 COMPARATIM-: FREE GOVERNMENT
There is much variation, also, in the size of the legislatures.
In the case of the Senate, the number of members varies from
seventeen, in Delaware, to sixty-three, in Minnesota. Two
States, New York and Illinois, have Senates with fifty-one
members. In four States the number is fifty ; in one, forty-
seven ; in two, forty-five ; in two, forty-four ; in three, forty-
two ; in four, forty ; in two, thirty-eight ; in four, thirty-five ;
in twelve, from thirty to thirty-five ; in ten, besides Delaware,
less than thirty. The average membership is about thirty-seven.
In the case of the House of Representatives, the variation is even
greater, and the average membership much larger. The number
of members runs from thirty-five to three hundred and ninety.
In five States the House numbers more than two hundred. In
thirty States the number is one hundred or more, sixteen of these
having a House membership of from one hundred to one hundred
and twenty. In twelve States the number is below seventy-
five.
The qualifications of members of the legislature are fixed by
the State constitutions. These differ a good deal. There is
usually an age requirement for eligibility, that of a Senator being
higher ordinarily than that of a Representative ; say, thirty and
twenty-five years. In some States the age is fixed at twenty-
five and twenty-one years. Residence within the district rep-
resented is the regular rule. This may be required either by the
constitution or by law. The residence rule, it should be said,
is practically always observed in the United States, with respect
to all elective ofiices. Other eligibility restrictions also may be
imposed on State legislators, as, for instance, the exclusion of
certain classes of persons. Public officers receiving salaries are
regularly excluded.
In a majority of the States the term of office of Senators is
longer than that of Representatives. In nineteen States, how-
ever, the term is the same. In a few more than half of the
States the senatorial term is four years. In most of the others
it is two years, only two having a one-year term. One, New
Jersey, has a three-year term for Senators. In ahnosi all of the
States the Representatives serve for two years. The exceptions
are four States where the term is one year, and three where it is
four years. With the exception of two of the Slates having a
four-year term, Representative's are elected for only one regular
STATE LEGISLATION 349
session of the legislature. In Louisiana and Mississippi both
Representatives and Senators serve during two regular sessions.
The ordinary rule, in those States where the term of Senators
is twice that of Representatives, is that only half the Senators
are elected at one time, thus making the Senate a permanent
body, similar, in this respect, to the United States Senate.
With respect to compensation of legislators the practices of
the States also differ. In thirty-one States the compensation is
a fixed sum per day, ranging from three to ten dollars. In almost
all of these the legislative session is limited to a stated number of
days. In only one, Vermont, where a per diem salary of three
dollars is provided, is there no limit to the number of days the
legislature may remain in session. In two States, Rhode Island
and Texas, there is no limit to the legislative session, but the
compensation is limited to five dollars per day for a period not
exceeding sixty days. In nine States there is a regular per
annum salary, ranging from one hundred and fifty to fifteen
hundred dollars. Five States pay a fixed salary for each regular
session, the amount varying from four hundred to one thousand
dollars.
In most of the States the legislatures hold biennial sessions.
In only six is there an annual session. One, Alabama, has a
quadrennial meeting of its legislature. In the great majority
of the States the sessions begin sometime in January, the exact
day being prescribed by law. As previously suggested, the ses-
sions are frequently limited to a certain number of days. Seven-
teen States fix no limit. In the others the sessions vary from
forty to ninety days.
Legislative Organization and Procedure. — Each house, when
the legislature convenes, organizes for work by the election of a
staff of officers, the appointment of committees, and the adoption
of rules of procedure. The Lieutenant-Governor of the State
is usually the presiding officer in the Senate and bears the title,
President of the Senate. Frequently he appoints the Senate's
committees. Where this is not the rule, the committees are
elected by the Senate, as is done in the Congress of the United
States. The power to appoint the committees gives to the Lieu-
tenant-Governor great influence upon the work of the Senate,
although he is not elected as a legislative officer. Not infre-
quently important committees are made up in a way to prevent
350 COMPARATIVE FREE GOVERNMENT
legislation to which the Lieutenant-Governor and his friends are
opposed. In the House of Representatives, the presiding officer
is elected by the House and is known as the Speaker. He
appoints the standing committees. In addition to the presiding
officers, there is in each house a large number of officers and
employees, including a chief clerk, reading clerk, sergeant-at-arms,
doorkeeper, and their assistants, and many committee clerks,
secretaries, and messengers. These are all technically elected
by the houses. In reality, however, the selection of all the im-
portant officers is made by the party caucuses, just as is done in
the Congress. The majority party in each house fills all the
chief places and most of the inferior places with its own adherents,
leaving to the minority party only a few offices of minor con-
sequence. The committees are made up so as to give the ma-
jority party control of each by a safe margin. Each house, it
thus is seen, is always organized on strict party lines, although
the amount of strict party voting in the legislatures is very slight.
In the process of organization, the election of the Speaker of
the lower house is usually the event of most interest and con-
cern. As in the national House of Representatives, the actual
selection of the Speaker is made by the caucus of the dominant
party, the election by the House being only a formal ratification
of the caucus action.
By the State constitutions each house is authorized to pre-
scribe its own rules of procedure. Some important regulations,
though, are set up by the constitutions themselves which, of
course, the houses cannot change, such as the requirements that
bills shall be read three times, that every act shall embrace but
one subject and this subject shall be clearly expressed in the title,
that a majority of each house shall constitute a quorum, and
that the yeas and nays shall be called upon the request of the
designated number of members. Except where constitutional
restrictions interfere, however, the houses may adopt whatever
procedural regulations they may prefer. These cover the prej)-
aration and introduction of bills and resolutions, their reference
to committees, their debate and amendmcnl in the houses,
and all the other steps which must be observed in the enactment
of laws. The number, size, and jurisdiction of the committees
also are regulated l)y the rules, as are the order of business and
the duties of officers.
STATE LEGISLATION 35 1
Without going into the details of a typical procedural system,
attention may be called to the great importance of the legisla-
ture's rules. The efficiency of the legislature is determined to a
large extent by them. However good may be the intentions of
the legislators, the value of their service is affected materially
by the procedure which they must observe. That the State
legislatures have failed, in most instances, to provide rules which
promote efficiency in the processes of legislation is one of the
outstanding facts revealed by a study of their methods and the
character of their work. It should be mentioned, however, that
much of the fault which attaches to the State legislatures is
not due to the failure to adopt rules of procedure, which, if
observed, would prove fairly satisfactory; it is due in part to
the non-observance of the rules which are adopted. It is a
familiar though significant fact that the formal procedure which
the rules prescribe is by no means always the one which is ob-
served. Not infrequently the rules are practically set aside and
bills are rushed through without regard to the normal require-
ments. If the leaders of the majority and minority groups are
agreed — and such agreement is common — great laxness in the
observ^ance of the rules is likely to prevail. This lax procedure,
as Professor Reinsch remarks, " has been encouraged through
the general apathy of the people towards the State legislatures."
The people as a rule give little thought to legislative procedure
about which they are generally ignorant. "So it has come
about that in States where the majority party has a strong
organization or machine, the various forms of procedure have
been treated as fictions, and the legislative body has automati-
cally registered, in the last days of the session, and with a down-
right disregard of rules, those pieces of legislation which the
party managers had agreed upon. Thus it is very common that
the full readings of bills required by the constitution are entirely
dispensed with, that the committee action on certain bills is
treated as a pure formality, that objections and demands for
roll-calls are ignored, and even that votes, which in fact were
hisufficient, are recorded as satisfying the legal requirements." ^
It is plain, therefore, that a m€re study of the formal organiza-
tion and procedure of the State legislatures will give both an in-
adequate and a false view of these important governmental
' Reinsch, " American Legislatures and Legislative Methods," p. 160.
352 CO^IPARATIVE FREE GOVERNMENT
bodies. With them, as with all the agencies of government,
the vital thing is the manner in which they actually work, and
not the way in which they were intended to work. It cannot
be denied that the procedure prescribed by the rules commonly
adopted by the State legislatures is far from perfect ; but it is
equally indisputable that much better results could and would
be attained if the requirements of the rules were accorded the
respect that is their due.
Character of the Legislatures' Work. — As the foregoing dis-
cussion indicates, the work of the State legislatures is far from
satisfactory. jMany reasons for this exist. ]\luch of the work
is done with indifferent spirit and in careless manner. The laws
enacted are often very faulty in character, with respect to both
form and content. Responsibility for what is done is often
difficult, if not impossible, to determine. The committee system
is usually cumbersome and preventive of harmonious action,
— the committees being too many in number and too large in
size. Publicity as to committee procedure is usually lacking.
Objectionable lobbying and improper influence upon legislators
are frequently brought to light. Narrow party spirit is too often
displayed. Members of legislatures are too frequently unfitted
for legislative service, through lack of ability, training, serious
purpose, or appreciation of the responsibilities of their positions.
Because of a rather distrustful, suspicious attitude on the part
of the general jjublic, coupled with the necessity of making a
vigorous campaign to obtain an election, many men of character
and ability are disinclined to seek legislative service. Moreover,
the salaries of members are usually so small that they do not
compensate for the sacrifices demanded by the j)olitical cam-
[)aigns and the time which must be devoted to legislative duties.
Furthermore, the increasing number of constitutional restric-
tions upon legislative powers has made service in the legislatures
unattractive to many men of talent and capacity for leadership
in jiublic affairs. For these, and other reasons, the State legis-
latures have failed to measure up to a very high standard. The
natural consequence has been that, as the people have become
aroused to the need of more responsive and efficient government,
a demand has sprung u[) for fundamental changes in legislative
organization and methods. Three of the leading reform move-
ments may be noted, those to provide for scientific legislation,
STATE LEGISLATION 353
to bring about thorough reorganization of the State legislatures,
and to promote direct legislation. Only brief comment upon
these is here necessary.
The movement for higher standards of legislation is of recent
origin and thus far has involved two important proposals.
One is the establishment of legislative reference libraries or
bureaus for the purpose of collecting information needed by the
legislature in the formulation of policies and of assisting legis-
lators in preparing for their duties. The other is the establish-
ment of drafting bureaus where bills may be put in proper form
by experts in the art of drafting laws. It is an indisputable fact
that the great majority of State legislators have neither the
knowledge nor the ability necessary for the proper framing of
laws dealing with many of the difficult, complex questions to
which modern industrial conditions have given rise. The need
for accurate information, so that the laws enacted will ade-
quately fit the conditions which they are designed to meet, and
the need for expert, scientific drafting of laws, so that they will
fit perfectly into the existing body of law and meet all the consti-
tutional requirements, thus being able to stand the severe test of
judicial scrutiny, are among the genuinely vital needs of the
American legislatures. Recognition of this fact has been grow-
ing rapidly in recent years and a number of States, following the
lead of Wisconsin, have established reference libraries which are
rendering service of the very highest value. Some of the States,
also, have provided for olficial draftsmen. The growing con-
sciousness of the value of well-framed laws and the great con-
fusion and loss from faultily drawn measures, with the conse-
quent burdens they impose upon the courts, give cause to
think that in time all of the States will make adequate provision
for assisting legislators along both of these lines.
The movement for reorganization of the State legislatures
looks to fundamental structural changes. A number of dif-
ferent plans have been suggested, all seeking the same end, —
greater legislative efficiency, more responsiveness to public
opinion, more direct responsibility, simplification of the legisla-
tive process, a higher type of legislator, and more capable
leadership. All of the suggestions contemplate a marked reduc-
tion in the membership of the legislatures, particularly that of
the lower and most numerous branch. The most radical and
354 COMPARATIVE FREE GOVERNMENT
most interesting proposal is to abolish the bicameral legislature
and substitute a single chamber, with a relatively small member-
ship, in which the chief executive ofiEicers should have seats.
This plan, which involves the payment of adequate salaries and
calls for the entire time of the legislators, has met with a good
deal of public favor, and there is fair prospect that, sooner or
later, it will be adopted by one or more of the States. It is to
be borne in mind, however, that the bicameral legislature is
deeply rooted in American experience, and the overthrow of so
old an institution is a work of difficulty. In all the history
of the American States, only three have experimented with a
single chamber legislature, and even in these an executive council
was provided as a check upon the legislature. Not since 1836,
when Vermont abolished the council and divided the legislature
into two houses, has the unicameral plan been used. With the
merits of these reform projects, it is not the purjwse here to deal.
Attention should be called, however, to the growth of the senti-
ment in favor of a closer relation between the legislative and
executive departments. A waning of the popular faith in the
rather extreme separation of these departments, so characteristic
of American government, is clearly discernible. The belief is
undoubtedly growing that the presence in the legislative as-
sembly of the heads of the chief executive departments would
be in the interest of better legislation, as well as more efficient
administration. That this belief is well founded, there is
abundant evidence to show.
The third legislative reform mentioned, and the one which
has made greatest progress, is the movement for direct legisla-
tion through the popular initiative and referendum. Repre-
sentative government, both in State and in Nation, controlled
largely by the exigencies of party politics and confronted by the
great industrial problems and forces which have developed, has
proven far from i)crfect. In fact, in the minds of many persons,
apparently increasing in number, it has proven inadcciuate, if it
has not actually broken down. The State legislatures, ])artic-
ularly, under the influence and sometimes the domination of
political bosses anrl big business interests, have been, as has
been j)ointcd out, indifferent in their work and unresponsive
to public opinion and the desires of a developing democracy.
The result has been a demand for direct participation by the
STATE LEGISLATION 355
voters in the work of legislation. In a number of States amend-
ments to the constitution have been put through which give to
qualified electors the right, upon petition, to initiate legislation
and decide at the polls whether it shall become law, as well as
the right to demand a referendum upon bills passed by the legis-
lature. That the movement for direct legislation is gaining in
force cannot be questioned. In more and more States the de-
mand is growing for constitutional amendments providing for the
initiative and referendum. The experience of the States that
have adopted the plan of direct legislation is being observed
and studied by the others, as a basis upon which to determine
their own actions. The extent to which this movement will
develop is a matter for conjecture only, as is the ultimate eiTect of
it upon the legislative assemblies. In the minds of some, a
general acceptance of the initiative and referendum will cause
a still further weakening of the State legislatures and a still
further loss in prestige and efficiency. In the minds of others,
the opposite effect will result, and the true representative prin-
ciple will be strengthened and the legislatures improved in char-
acter and influence. Time must tell which opinion, if either, is
correct.^
It is to be noted that the legislative reforms mentioned are not
antagonistic to one another. They are, in fact, supplementary
to one another. Whatever the effect of direct legislation may be
upon the legislative assembhes, it is nowhere contemplated that
the legislatures shall be abolished. Whether composed of two
houses or one house, the legislature is certain to be an important
organ of government, and the same need will exist for closer
affiliation with the executive leaders, and for expert assistance
and accurate information in the drafting of laws, as now exists.
With all of its weaknesses and faults, with all of the changes that
are likely to occur, the State legislature will continue to hold a
vital place in the American system, and if some of the reforms
contemplated are carried out, and work as they are anticipated
to v^ork, it will acquire a position and influence such as it has not
had since the early days of the Republic, for these reforms look
to the strengthening of the legislature and not to its injury.
The States as Political Experiment Stations. — In connection
with this discussion of the legislatures and their work, and as
> For discussion of direct legislation in Switzerland, see Chap. LIII.
356 COMPARATIVE FREE GOVERNTMENT
illustrating the part which they will undoubtedly continue to
play in American poUtics, attention may be called to the pro-
foundly significant part which the States have in solving the
problems of free government. The possession of the inherent
or original powers of government and their independence with
respect to the control of their own affairs give to the States a
strategic position ; and it is to be remembered that, except as the
State constitutions forbid, these inherent powers are exercisable
by the legislatures. The States, acting through their legislatures
as well as by direct legislation, may be, if they wish, great
experiment stations for the development and testing of new
institutions of government, for trying new policies, and evolving
new methods of administration. They are frequently spoken of
as political laboratories ; and such they arc, to a greater or less
degree, to the enrichment of the political life of the whole Nation.
The States are so related to one another and to the national gov-
ernment, that each can experiment in the solution of problems
that are common to many or all of them. The possible ad-
vantages of this are so obvious that comment upon them is
unnecessary. A number of States with a common problem,
under similar conditions, may be seeking its solution along
radically different lines. Some may fail and some may succeed.
By a comparative study of their experiences and the results
attained, the policy best suited for all of the States interested
may be discovered. By this procedure much time and a great
waste of energy and of money may often be avoided.
It must be said, however, that the States have not utilized
to the extent possible, the opportunity that is always before
them to carry forward political experiments which may prove
mutually helpful. In fact, though in recent years a number of
States have Ijoldly tried new policies and new devices in their
attempts to achieve a more genuinely popular government, the
general tendency in the past has been to adhere to a markedly
uniform scheme of government and to oppose innovations. The
result has been less advance than might reasonably have been
expected. This situation is undoubtedly clianging, however,
and under the influence of the great democratic movement which
has been developing for a mmiber of years and is now rapidly
gaining headway, the States :iic bci oming more active and more
iiK lined lo venture \\\nm untrodrlcn jKilhs and to test by actual
STATE LEGISLATION 357
experience new principles and new theories. The reference
here, of course, is to principles and theories hitherto untried by
the American States, not necessarily new to the experience of
foreign countries. It is in the States, indeed, that the growing
democratic spirit and the demand for the democratization of
government in all of its agencies, have first revealed themselves
and have been most insistent. Naturally the influence of this
movement for a more thoroughgoing democracy in the States
has extended to the Nation and now no branch of government,
national, State, or local, is free from it.
To illustrate the service of the States in this connection,
reference may be made to some of the great reforms in govern-
ment achieved by them in recent years. One of the most notable
of these is the legalization of the political parties and their
functions and the thorough overhauUng of the procedure for
the nomination of candidates for public office through the enact-
ment of popular or direct primary laws. The old voluntary
convention system, evolved by the political parties, unrestrained
by law, is rapidly being supplanted by direct primaries. In
practically all the States the primary, in one form or another, is
in operation. In a majority of them, a statewide primary pre-
vails, applying to United States Senators, members of the
House of Representatives, Governors, and other State officers,
as well as to members of the State legislatures and to local offi-
cials. And, as pointed out in the discussion of the party system,
a strong demand has developed for the nomination of presidential
candidates by a similar method. ^ The whole purpose of these
laws is to popularize the State governments by making the party
organizations legal institutions and giving the members of each
party the right to choose the party candidates. Discussion of
whether the ultimate results of the primary plan will be what
has been hoped for does not lie within the scope of this book ;
opinions differ radically upon this, and a much longer experience
with the system is needed before final judgment may be made.
It may be assumed with some assurance, however, that popular
nominations, by one plan or another, have come to stay and that
the direct primary will in time be extended to all the States.
Many other new governmental devices and policies are being
tested by some of the States, which are being scrutinized care-
' Above, p. 203.
358 COMPAR.\TIVE FREE GOVERNMENT
fully and to a greater or less extent copied by the others. Among
these, in addition to the initiative and referendum previously
discussed, may be mentioned the recall of pubUc officers, includ-
ing judges of the State courts, by popular vote, — a reform which
is new and which only a few States have adopted ; control of
pul)lic utilities, local as well as State, by State commissions ;
public ownership of municipal utiUties ; taxation reforms and
centraHzed tax administration ; legislation for the construction
of permanent highways ; cooperative enterprises of various
kinds ; the short ballot ; stringent corrupt practices acts and
control of election expenditures ; State insurance ; and social
justice or social welfare legislation, such as minimum wage,
child labor, and workingmen's compensation laws, and mothers'
pensions. As stated previously, the States have become very
active in recent years in the enactment of social welfare legisla-
tion, and the keenest interest is shown in the legislative experi-
ments of the more advanced States. A plan which proves suc-
cessful in one State is certain to be adopted, in whole or in part,
by some of the others. Some experimentation is always in
progress, and through a comparative study of the results all of
the States are enlightened and helped. The benefit which comes
from this mutual exchange of ideas and experiences is too mani-
fest to i>e seriously questioned. Whatever may be thought of
specific measures that may be enacted, it must be admitted
that one of the distinct advantages that comes from the federal
system of government lies in the reaction of the States upon
one another in their attempts to solve difficult ])roljlcms which
are of common interest.
Uniform Legislation. — Complete diversity of laws, each
State going its own way, no matter how similar the conditions
may be, is plainly not desirable. On the other hand, absolute
uniformity is harrlly to be desired. Such a condition would lend
to check progress in meeting adequately the problems that arise.
It is of supreme vahie to I he American democracy to have the
individual States free to handle their own peculiar problems in
their own way. There are .some questions, howexcr, upon which
uniform laws would be of great benefit, though these questions,
under the constitutional arrangement that exists, are exclu-
sively within the jurisdiction of each Stale. Marriage and
divorce may be cited as examples, if iIk laws of one Slate
STATE LEGISLATION 359
upon these questions are very stringent and those of an adjoining
State are very lax, it is evident that the purpose of the former
can easily be defeated by the latter. The advantage of having
the same law, or substantially the same law, prevail in both
States is clear. Some of the States have had at times rather
unsavory reputations because of the resort to them by people
from other States for the purpose of taking advantage of their
lax divorce requirements. There is Httle reason to doubt that
a satisfactory uniform law on this subject would be in the interest
of morality and public welfare.
It is perhaps in connection with the control of industry and
business, however, that the need for uniformity is most notice-
able. Restrictive legislation designed to remedy abuses or
prevent evils in business is difficult of enforcement in a State,
if other, perhaps adjoining States, do not have laws of a similar
character. Control of this kind, though it may be proper control
and clearly in the interest of the general public welfare, may in
fact impose burdens upon business enterprises which they cannot
successfully carry in competition with similar businesses in
other States that are free from such control. Difficulties of
this nature have frequently prevented in some States the enact-
ment of laws greatly needed for the protection of helpless classes
of people. For instance, the passage of child labor laws has
been much retarded, and in some instances prevented, by the
fact that industries to which the laws applied would be compelled
to compete with those of other States in which similar laws did
not exist. Yet adequate protection of child workers is necessary.
Similar situations arise in connection with minimum wage laws,
workingmen's compensation laws and other restrictive social
welfare legislation. The difficulty is a very real one and the
progress of movements for the protection of workers and the
improvement of industrial conditions has been delayed materially
by it. If all of the States, or those of them interested in a par-
ticular problem, could be induced to act uniformly, it is undeni-
able that the solution could be found for many questions which
are as yet unsolved. But experience has shown that it is ex-
tremely difficult to obtain this uniform action, notwithstanding
the marked incUnation of the States to copy from one another.
Unquestionably, however, there is a growing sentiment in favor
of concerted action in some matters, and it may reasonably be
expected that in time uniform laws will be more common.
360 COMPARATIVE FREE GOVERNMENT
REFERENCES
Beard. American Government and Politics, Edition 1914, Chaps. XXIII,
pp. 461-471, XXV.
Bryce. The American Commonwealth, Edition 1910, Vol. I, Chaps. XXXIX,
XL.
Dealey. Growth of American State Constitutions, Chaps. I to VIII, inclu-
sive, XV, XVI, XVII.
Jones. Statute Law Making in the United States, Chaps. I, II, III.
McCarthy. The Wisconsin Idea, Chaps. VIII, IX.
Proceedings, American Political Science Association, 1907, \'ol. IV, pp. 69-
137; 1913, Vol. X, pp. 191-233-
Ray. An Introduction to Political Parties and Practical Politics, Chaps.
XVIII, XIX, XX.
Reinsch. American Legislatures and Legislative Methods, Chaps. IV to X,
inclusive.
Reinsch. Readings on American State Government, Chap. II.
CHAPTER XXVIII
State Administration
Decentralization characterizes the executive organizations
in the States. In this respect the State governments differ
materially from the government of the Nation. Executive
power in the States is not centered in one chief executive, as the
executive power of the Nation is centered in the President ; on
the contrary, it is divided among a number of State officers and
commissions, some of whom are entirely independent of control
by the nominal chief executive, the Governor. The State
administrative system is not a unit ; its parts do not constitute
a hierarchy of administrative agencies, each carefully adjusted
to the others with a view to obtaining the highest efficiency.
Thus far the fact which stands out with most striking clearness
in connection with the governments of the States is this decen-
tralization in administration, this diffusion of executive power,
with its consequent diffusion of responsibility. The extent to
which this policy has been carried and the results which flow
from it, will be indicated in the discussion that follows. It is
suggested here, merely, that decentralization, though it is natural
for the States, considering the circumstances which prevailed
at the time the Union was formed and the traditions of the
American people, has proven very ineffective under modern
conditions, and constitutes one of the grave, urgent problems
of the present day.
The fact is to be emphasized that the administrative organiza-
tion which prevails in the States was developed under conditions
that were very different from those that now exist. When the
Union was formed the functions of the State governments were
few in number and simple in character. The general social and
industrial life was far from complex. The States were not
organized to engage in large operations such as they are now
called upon to undertake, and consequently the administrative
361
362 COMPARATIVE FREE GOVERNMENT
machinery is not adapted for the work they must do. Govern-
mental institutions and processes, if they are to prove adequate,
must change with changing conditions and problems. In the
case of the States this necessary development has not occurred,
with the result that they are falling far short of what they should
achieve and what, in some manner, they must be made to
achieve. The conclusion is inescapable that the State govern-
ments must undergo important changes before they will be able
successfully to do the work which, under the American system,
they alone can do. That this is becoming apparent to the people
of the States is one of the significant developments of recent
years.
The Governor. — In describing the State administration, it
is natural to begin with the Governor, who is looked upon as the
chief executive and the head of the State government. Each
State has its Governor and except in one instance, Mississippi,
he is everywhere elected by popular vote.^ He is practically
always a party man, nominated for his position at a party pri-
mary or convention, and elected as a partisan. Quite generally
he is looked upon as the head of his party in the State, for the
time being, though sometimes he is overshadowed in this
respect by a United States Senator or by an unoflicial party
boss. The position he holds is so high, however, notwithstand-
ing the Hmitations upon him, and the opportunity for aggres-
sive leadership which he has is so great, that the Governor who
is made of the right stuff, can, regardless of the parly conditions
which surrounded his election, make himself a conspicuous power
in the affairs of the State, and not infrequently acquire national
fame and influence. He is the natural Slate leader and the
general public, completely reversing the popular attitude in the
early years of the Repubhc, has come to look to him for guid-
ance in State affairs in much the same way as it looks to the
' In Mississippi an unusual system of indirect election prevails for the selection
of all State officers. Elections are helfl in the several counties and legislative dis-
tricts of the State at which the voters express their preferences anions the candidates
for the various ofTjces. The person receivinR the highesl number of votes cast in
any county or district, for any ofTue, "shall be holden to have received as many
votes as such county or district is entitled to members in the house of representa-
tives, which last named votes are hereby desiRnateil 'electoral votes.' " 'I"he can-
didate who receives :i majority of all the electoral votes of the State, and also a
majority of the pojjiilar vote, is declared elected. — Mississippi Constitution,
Section 140.
STATE ADMINISTRATION 363
President in national affairs. The office of Governor is un-
doubtedly growing in importance, and, taking the States as a
whole, its occupants are measuring up to higher standards of
independence and leadership. It is an office that is potentially
great and that calls for men of statesmanlike qualities and
abihties. As in the case of the presidency, its actual influence
at any particular time depends largely upon the character and
powers of the man who holds it.
The term of office for which the Governor is elected is fixed
by the State constitution. As in the case of members of the
State legislatures, no uniform rule is observed. In twenty-
three States the term is two years, and in twenty-three, it is
four years. One State, New Jersey, has a three-year term, and
one, Massachusetts, elects its Governor annually. A tendency
has been apparent, in recent years, to substitute the four-year
for the two-year term. The opinion is growing that it is in the
interest of popular government, as well as of more efficient ad-
ministration, for the Governor to have at least four years of
service, free from the excitements and distractions of a cam-
paign for reelection, and in a number of States agitation is
under way looking to the adoption of the longer term. It
requires time for a Governor to become proficient in his work
and the two-year term is not long enough to enable him to do
this and utilize this newly acquired proficiency to the best
advantage. That the tendency is clearly in the direction of
the longer term is indicated by the fact that two of the three
States last admitted to the Union, Oklahoma and New Mexico,
provided for the election of their Governors every four years.
The compensation of the Governors varies greatly. In
some States the amount is definitely fixed in the constitution,
and in others it is left to the discretion of the legislatures. The
salaries range from $2500 to $12,000. Six States pay their
governors $10,000 or more, and thirty-two pay $5000 or more.
In two States the sum is $2500 and in four, $3000.
The qualifications of Governors are determined by the State
constitutions. An age limit is everywhere prcscril)ed, the
usual requirement being that the Governor must be at least
thirty years of age. He must be a citizen and have been a
resident in the State for a prescribed number of years. It is
quite the regular rule to forl)id the Governor to hold any federal
364 COMPARATIVE FREE GOVERNINIENT
office during the time he is serving as Governor. In some
States he is made inehgible to succeed himself, but in others
no Hmitation is prescribed as to the number of terms he may-
serve. The two-term custom, however, is quite generally ob-
served. In a few States it is prescribed that the Governor
shall not be elected to the United States Senate during his term
of office.
The Governor as an Executive. — The powers of the
Governors of the several States are similar in character, though,
as a matter of course, they differ more or less in detail. The
Governor is generally charged by the State constitution with
the exercise of the executive power of the State and is made
responsible for the faithful enforcement of the laws. He thus
becomes the State's " chief executive." It is to be noted, how-
ever, that this vesting of the executive power in the Governor
does not give him a place in the State government like that
which the President has in the Nation as a result of a similar
grant in the national Constitution. The President is in fact the
Nation's chief executive and is responsible for the national ad-
ministration. The executive departments are under his direct
supervision and control, and their heads are appointed by him
and may be removed by him at will. But in none of the States
is the Governor given such a position of dominance in the
State administration. There are in each State executive officers,
chosen by popular election, who are in charge of important de-
partments of administration, and who are independent of the
Governor. Their responsibility is to the electors just as is the
Governor's. Consequently the declaration of a constitution
that the " supreme executive power " of a State shall be vested
in the Governor is not to l)e understood as conferring the au-
thority to direct all of the State's administrative activities. As
remarked previously, the State's administrative organization
is decentralized, while that of the Nation is highly centralized.
The Governor is thus only one of a number of executive officers
in the State; and over his associates he has very Htlle, if any,
control. Certainly as long as these officer;^, to whom (ie(inite
duties have been assigned by the constitution or by law, ob-
serve the requirements set for them, the Governor can have
nothing to say concerning the manner in which they conduct
their offices. However, if they should violate the laws or fail
STATE ADMINISTRATION 365
to enforce those for which they are responsible, it would be
the duty of the Governor, under the constitutional requirement,
to take whatever action is permitted him to see that the laws
are enforced and that those guilty of their violation are punished.
This means, usually, that he may start legal proceedings against
the offending officer. In some instances the power to suspend
an ofl&cer temporarily is conferred on the Governor, but this is
by no means common. As a usual thing, he is dependent upon
court processes. It is clear, therefore, that the Governor, as
the " chief executive " of the State, holds a pecuHar position
and that his relation to the general State administration is
very different from that of the President to the administration
of national affairs.
In the enforcement of laws violated by private individuals,
the Governor, when he takes the initiative, acts by ordering a
prosecution in the courts by the law officers of the State. In
cases of this kind resort is almost always had to court pro-
ceedings. It sometimes happens, however, when riots occur
or extreme disorder prevails, that martial law is declared by the
Governor, and the miUtary forces of the State, the militia, are
called out to enforce obedience. This drastic action is by no
means a frequent occurrence, but occasionally it has been neces-
sary. Usually, when it has been taken, the necessity for it
has arisen in connection with the violence and disorders attend-
ant upon bitter, long-continued controversies between striking
laborers and their employers. If the disorder is so widespread
and of such a character that the Governor feels that he is unable
to cope with it, he may call upon the President for the assist-
ance of federal troops. Of course the President is under no
obligation to grant the request, if he thinks that the Governor
has failed to use all the power at his command, and he will
assent to it only when he is convinced that there is real need for
federal interference. In this connection it is to be noted, as
these statements imply, that the Governor is the head of the
State militia except when it is in the service of the United States,
when, of course, it becomes a part of the United States army and
is under the command of the President.
Another significant power, possessed by the Go\-crnor, is
that of granting pardons, reprieves, and commutations. This
power is related to his executive functions, but is really quasi-
366 COMPARATIVE FREE GOVERNMENT
judicial in character. The practices of the States in this, as in
the exercise of so many other powers, are by no means uniform.
In some States the Governor alone exercises the pardoning power,
and in others he shares it with the legislature or with a board of
pardons. In some instances a board of parole exists with power
to parole prisoners and make recommendations to the Governor
concerning appUcations for pardon. Sometimes the Governor is
bound by such recommendations and sometimes he is not.
The pardoning power may not be used in impeachment cases.
The granting of pardons, reprieves, and commutations is a
very important function of government and has been greatly
abused in many of the commonwealths. It affects vitally the
administration of the criminal laws, a work in which the Ameri-
can States are notably weak, and is central in the great problem
of prison administration and reform which presses for solution
in all of the States.
Appointment and Removal of Officers. — A part of the
Governor's work as an executive officer is the making of ap-
pointments to office. With respect to this the practices of the
States difTer greatly. In some States the Governor's power of
appointment is large because, either by constitutional provision
or by requirement of law, he is charged with the appointment
of many important officers. In other States this power is
relatively small because the elective principle is applied to all
or practically all important positions. The present tendency,
as shown by the developments of recent years, is clearly in the
direction of a larger use of the appointive principle and a re-
duction in the number of elective offices. If this movement
achieves substantial results, the Governor's position will un-
doubtedly become one of far greater power, inlluence, and re-
sponsibility than it is now or ever has been. It is usually the
practice, where the Governor is given authority to make ap-
pointments, to require their confirmation by the upper house
of the legislature. In this the inlluence of the national practice
is clearly discernible. As with the Presideni, some of the
Governor's ajjpointing power comes from the constitution, and
some from authorization by IJie legislature. In the latter case,
the legislature is usually free to require conlirmation or not,
just as it pleases. In some States, indeed, the legislature it-
self is empowered to make important appointments. In a
STATE ADMINISTRATION 367
few, the State Treasurer, who is commonly looked upon as one
of the most important State officers and one whom the electors
should choose directly, is appointed by the legislature. The
regular rule, however, is to give the appointing power to the
Governor, in the case of heads of departments, members of
State boards and commissions, and judges of the courts, if the
appointive method is employed. The appointment of deputies
and other subordinate officials in the departments is usually
left to the department heads. To some extent, in some States,
civil service laws are in force, which limit the appointing power
of the Governor and other State officers. There is no uniform-
ity in this regard, however, and, in general, the civil service
requirements of the States are meager and not of a high order.
In this field lies one of the great opportunities of the States
for notable reform and progress.
Consideration of the appointing power suggests the power of
removal. Here, again, the position of the Governor is very
different from that of the President. In the case of the Gov-
ernor, there seems to be no general or inherent power of removal,
such as is recognized as belonging to the President. Whatever
authority he has of this nature comes to him from specific
authorization by the State constitution or by legislative enact-
ments. As would naturally be expected, this authority varies
greatly from State to State. Not only this, but a number of
radically different methods of removal are employed by the
States. Professor Beard calls attention to six of these, three
or more of which will be found in almost any commonwealth,
and remarks : " Not only do we discover a great variety of
practices among the several commonwealths, but in each State
we find different methods of removal applied to officers of equal
rank as well as officers of different grades." ^
The first of these methods, common to all of the States, is
that of impeachment. As a rule, the procedure observed is
about the same in the various States and is similar to that which
is followed by the houses of Congress as prescribed by the
federal Constitution. The indictment or impeachment charge
is brought by the lower house of the legislature and the case is
tried by the Senate. In some instances judges of the highest
State court sit with the Senate. This is the case in New York,
* Beard, " American Government and Politics,'' New and Revised Edition, p. 508.
368 COMPARATIVE FREE GOVERNMENT
where all of the judges of the Court of Appeals participate in im-
peachment trials. One State, Nebraska, imposes the duty
of hearing impeachment cases exclusively upon the judges
of the Supreme Court, the impeachment being made by
the two houses of the legislature in joint session. No uni-
form rule exists among the States as to what officers are
subject to impeachment. In some, all civil officers may
be impeached, while in others the impeachment process is
limited in its application. The offenses which may cause im-
peachment are, with one exception, stated in the constitutions.
South Carolina gives to the legislature full authority to deter-
mine the offenses which call for impeachment. Among the
causes of impeachment, in addition to treason, bribery, crime,
and misdemeanor, may be mentioned the following : " drunken-
ness, malfeasance, gross immorality, extortion, neglect of duty,
incompetency, and misconduct." ' Conviction on an impeach-
ment charge usually involves removal from office and disquali-
fication from holding any office of profit or trust in the State,
but as under the national Constitution, it does not free the
offending officer from arrest, conviction, and punishment under
the criminal laws of the State.
The other methods of removal are by the legislature, by the
Governor and the Senate acting together, by the Governor
alone, by the courts, and by recall by the electors. These
methods are not employed by all of the States, of course. Re-
moval by the Governor and Senate is quite common. Removal
by the Governor alone, however, is not a common practice, al-
though in a numljer of States the Governor is given authority
to remove officers whom he appoints. The poj)ular recall is
a new device, first ap[)lied to State officers in 1908 when it was
made a part of the Oregon constitution. It involves the holding
of an election, upon the petition of a designated percentage of
the voters, to determine whether or not the officer under charge
shall continue in office or be removed. A number of States in
recent years have adopted the recall and given it state-wide
application. In the cities governed i)y commissions it is quite
generally provided for. .
The Governor and Legislation. — The Governor, in addition
to the executive and (|uasi-ju(licial functions which have been
• Bcurd, " American GovcriimciU and Polilics," New and Revised Kdilion, p. 509.
STATE ADMINISTRATION 369
noted, has a vital relation to State legislation. In general,
this relation is very similar to that which the President has to
national legislation. While the principle of the separation of
powers is fundamental in all of the State constitutions, the
Governor is everywhere permitted to share in the legislative
function. Some of his power, as with the President, is constitu-
tional in its origin and character and some of it extra-constitu-
tional. The Governor, like the President, is more than an
executive officer under the constitution and the nominal head of
the government of which he is a part ; he is also the head of his
party and, as such, has an important work to do in the formula-
tion of State policies.
Following the practice in the Nation, the State constitutions
give to the Governor the right to recommend to the legislature the
enactment of laws and the adoption of policies which he deems
wise. He does this through messages, either sent in written
form to be read to the two houses by their own officers, or de-
livered in person by the Governor. At the beginning of each
legislative session, he addresses the legislature in one or the other
of these ways and calls attention to the new laws, or the modifica-
tion of existing laws, which he thinks the legislature should take
under consideration. During the session, also, special messages
may be addressed to the legislature for the same purpose. It
is understood, of course, that the legislature is not bound to
act upon the Governor's recommendations. It is free to do
as it pleases, just as Congress may do whatever it wants to with
the suggestions of the President. But the Governor, like the
President, may appeal directly to the people through speeches
or printed articles in an attempt to arouse public sentiment in
favor of the policies he stands for and thus bring public pressure
to bear upon the legislature. Moreover, the Governor is given
authority to call the legislature in extraordinary session, and if
it fails to act as he desires at the regular session, he may thus
force it to approve or reject the measures he has recommended
to it. In attempting to influence the legislature, the Governor
has the same weapons to employ that belong to the President
in his dealing with Congress, though, -of course, their effective-
ness is less in the hands of the former than in the hands of the
latter. Patronage sometimes plays its part ; personal per-
suasion is often effective ; the influence of party leaders and
370 COMPARATIVE FREE GOVERNMENT
workers is sometimes brought to bear. But the great weapon
of the Governor is the privilege he enjoys of appealing directly
to the people, to whom he is alone responsible, and of explain-
ing his position and soliciting their approval. Public opinion,
when it is clear and unmistakable, is the great, irresistible force
in politics.
In addition to his right to recommend laws, the Governor
has the power to veto acts of the legislature which he disap-
proves. Only one State, North Carolina, withholds the veto
from the Governor. The constitutional authorization of the
veto is a part of the general provision requiring that all bills
must be submitted to the Governor for his signature. The
general practice is similar to that prescribed in the federal Con-
stitution. The Governor is given a definite period in which to
consider a measure submitted to him by the legislature, the time
varying in the different States from three to ten days. If he
signs it, the legislative process is completed, and the law goes
into effect at the time prescribed by the constitution or by the
law itself. If he wishes to veto the measure, he returns it to
the branch of the legislature in which it originated, together with
a statement of his objections. It is then the privilege of the
legislature to pass the bill over the Governor's veto. The usual
vote required for this is two thirds in each house, although three
States provide a majority of three fifths, and a few require only
a majority vote. In some of the States the Governor is per-
mitted to veto single items of bills, a privilege which the Pres-
ident does not have. More than half of the States give this
authority to the Governor in connection with appropriation
bills. Ordinarily, as is the case with the President, the veto is
an effective weapon in the hands of the Governor.
Mention has been made of the fact that an important part of
the Governor's influence upon legislation does not rest upon
formal constitutional provision, but is due to his position as a
party leader. This is an aspect of the matter which should not
be overlooked, but which cannot be given here a detailed dis-
cussion. The Governor's recommendations to the legislature
carry weight by reason of his party leadershi]). For the same
reason his veto is difficult to overcome, if the bill in C|uestion
deals with mailers thai are ihe subjects of partisan controversy.
In general, it maybe said up(jii lliis [mjIiiI, that the Governor's
STATE ADMINISTRATION 37 1
party position in the State is relatively the same as the Presi-
dent's position in the Nation, although the actual influence of
the Governor by no means measures up to that of the President.
Each has power in his own field because of his relation to his
party. What this power really amounts to depends, in the
case of the Governor, as in the case of the President, upon him-
self, — upon his character, will, capacity for leadership, and
conception of the functions of the office he holds. He can
be a leader in legislation, or not, just as he chooses.
The Lieutenant Governor. — Closely related to the office
of Governor, is that of Lieutenant Governor, although the latter
is not an administrative office. The Lieutenant Governor,
usually elected by popular vote, holds in the State relatively
the same position as the Vice President in the Nation. By
provision of the State constitution he succeeds the Governor in
case of the latter's death or disability or removal from office by
impeachment. As a usual thing, the Lieutenant Governor is
the presiding officer in the State Senate and, under constitutional
authority, casts the deciding ballot in case of a tie. As pre-
viously noted, the Lieutenant Governor is given power in some
of the States to appoint the Senate committees. Where this
is done he is an important factor in legislation, differing in this
respect from the Vice President. A majority of the States have
a Lieutenant Governor.
Independent Executive Officers. — Passing from a considera-
tion of the State's " chief executive," the Governor, and his
legal successor, it is necessary to give attention to other ad-
ministrative officers. In all the States there are several ex-
ecutive officers who are independent of one another and, for
the most part, of the Governor also. Each has his own work
to do by authorization of the constitution or the statutes, and
is responsible to the people of the States. These officers are
heads of departments, and as a rule are chosen by popular vote
for definite terms of office. Their terms usually coincide with
that of the Governor. They are almost always chosen as
party men and as a rule receive compensation as fixed by the
legislature. At least five of these officers may be given special
mention.
In all of the States there is a Treasurer who is charged with
the safe-keeping of all moneys which come into the State treas-
372 COMPAILVTIVE FREE GOVERNMENT
urv from taxes, fees, rentals, and other sources of income. He
is placed under a heavy bond for the faithful discharge of his
duties. Money may be paid out of the treasury only upon
authorization by the legislature and upon proper warrants
issued as provided by law.
All the States have an ofhcer called Secretary of State who
performs important ministerial duties. He is the custodian of
the State archives and keeper of the State seal ; publishes and
distributes the laws enacted by the legislature ; distributes
public documents of all kinds ; issues election notices and cer-
tificates of election ; compiles and publishes election returns ;
usually serves as ex officio member of various State boards;
makes annual reports of the work of his department ; receives
reports and fees from various officers, and performs many
other miscellaneous duties imposed by law. Frequently he is
required to issue certificates of incorporation to companies
organizing under the laws of the State, collect the incorpora-
tion fees, receive the annual reports of corporations, and have
general supervision over the enforcement of the corporation
laws. Naturally the duties of the Secretary of State vary
greatly, in detail, from State to State.
Another official found in all of the States is the Attorney-
General, who is the chief law officer. In general, his duties are
of two kinds. He prosecutes cases for the violation of State
laws and defends the State in actions brought against it ; and
he acts as legal adviser to State officers and departments when
they are in need of his services. Clearly the work of the At-
torney-General is of high importance. Upon him in no small
degree rests the responsibility for the faithful enforcement of
the laws. His powers differ a good deal in the several States.
In some he has close relation with the law enforcement officers
of the local governments and may interfere on behalf of the
State if they fail or are lax in the enforcement of State laws. It
may be said that the function of the Attorney-General is coming
to be looked upon by the i)c<)i)le with increasing concern and
general improvement in the work of his office may confidently
be expected.
In most of the States there is an officer called Auditor or
Comptroller, the former being the more common name. As
the name suggests, it is the function (;f the Auditor to audit
STATE ADMINISTRATION 373
accounts against the State and draw warrants on the treasury
for the payment of money authorized by law. It is only upon
the proper warrant from the Auditor that the Treasurer may
pay out money in his possession. The Auditor is an important
factor in the management of the fiscal affairs of the State. In
some States special duties are imposed upon him with respect
to the supervision of insurance companies, banks, and loan and
trust companies. He is everywhere in close relation with
county officials, and, like other State officers, is frequently
ex officio a member of boards and commissions.
The fifth officer to be mentioned especially is the Superintend-
ent of Public Instruction, in some States called the Commis-
sioner of Education. This officer is found in most of the
States. It is his duty to administer the laws of the State re-
lating to education, as far as the general public school system is
concerned, and promote the educational interests of the State.
A phase of his work which is particularly vital is that in con-
nection with the development and management of the rural
schools, one of the big and fundamentally important problems
in America. In many States, the Superintendent of Public
Instruction is elected by popular vote, while in others he is ap-
pointed, usually by the Governor.
Besides the officers mentioned there are many other independ-
ent executives, with widely varying duties, to be found in the
States. The work of the State governments has increased enor-
mously with the growth of population and the rapid develop-
ment of industry and commerce. It is to be borne in mind that
America practically has ceased to be a country with a vast
unclaimed public domain, with fertile agricultural lands to be
had at very low prices, and has entered upon the industrial
phase of her development. The result is a complexity in social,
business, and political relationships which was entirely lacking
not many years ago. This development is clearly reflected in
the great increase in governmental functions both in States and
Nation. Public ofiices have multiplied rapidly in recent years.
The States have not developed along identical lines, and natu-
rally there is great diversity as to the character and purposes of
the offices which have been established. Furthermore, there
has been comparatively little thought taken in any State
to insure a systematic, harmonious administrative system.
374 COMPAPL\TIVE FREE GOVERN^IENT
" These new state offices have been created one after the other
as new demands have been made upon the legislature ; and as
the federal policy of classifying and subdividing into depart-
mental hierarchies has not been adopted by our common-
wealths, the result has been the creation of a system which is
the very apotheosis of chaos and irresponsibility." ^
State Boards and Conunissions. — One aspect of this develop-
ment is deserving of particular emphasis, for it represents a
noteworthy tendency in American politics and is the occasion
of a good deal of uneasiness and criticism on the part of many
persons who cling tenaciously to the traditional ways of ad-
ministering public functions. This is the marked and rapid
increase in the number of boards and commissions which have
been charged with the management of important, difficult
administrative problems. To these commissions have been
given great executive powers. The number of members on
the commissions varies a good deal ; sometimes there are three,
sometimes five, and frequently only a single commissioner is
provided for. The questions placed under commission control
cover a wide range. Among them may be mentioned the
regulation of railways and other public utility companies,
both State and local ; tax administration ; civil service ; public
health ; highways ; minimum wage laws ; workingmen's com-
pensation laws ; agriculture ; management of the State's
charitable, penal, and reformatory institutions; control of the
State institutions for higher learning; food and dairy laws.
Some States have gone much farther in this direction, of course,
than others, but in all the States the movement for " government
by commission," as its critics have called it, has gained great
headway. That this is having a marked influence upon the
State governments cannot be questioned, but the ultimate
effect must be left for time to reveal.
In explanation of the commission movement, three points
may be suggested. First, legislating in minute detail upon
complex social and industrial questions is a difficult thing,
and Stale legislators, often unwilling to assume the full burden
of legislation, take the easier course of creating a commission
and authorizing it to work out a system of control. Though
' Beard, " American Government and Politics," New and Revised Edition, p.
SOI.
STATE ADMINISTRATION 375
the work of the commission is really executive in nature, this
is really delegating to the commission a task which, according
to the traditional American practice, the legislature itself should
perform. Second, it is often impossible for the legislature to
provide in precise terms for all phases of the work which must be
done. A commission is created, therefore, and given certain dis-
cretionary powers which will enable it to fit the general legislative
requirements to the needs of the time. Third, there are un-
questionably developing in America a demand for expert ad-
ministration and a belief that many of the great problems of
the day cannot be solved by the direct act of the legislature. It
is held that the legislature adequately discharges its function
when, in general terms, it expresses its will and sets up reason-
able requirements, leaving to administrative ofi&cers the task of
ascertaining in detail what the legislative will is. The practical
appUcation of this will is not legislative, but executive in char-
acter, and in the hands of trained officers assures effective exe-
cution of public policies. There is clearly a disposition on the
part of many Americans to attempt to graft on the t)^ical
Anglo-Saxon practice of governing through detailed legislation
some of the administrative features of governmental organiza-
tion in the Roman Law countries where legislation is in general
terms and executive authority is large. The administrative
achievements of Germany, in particular, have had a very posi-
tive influence upon some of the American States. Wisconsin
may be cited as an example. In that State, administration
through commissions exercising large discretionary powers,
has reached perhaps its highest development in America.
As stated, the commission idea has been subjected to a good
deal of hostile criticism ; but with the merit of this criticism
the discussion here is not concerned. It is sufficient to call
attention to the development that has occurred and to indicate
its significance in relation to traditional American methods of
administration. One fact, in addition to what has been said,
however, should be noted ; that the method of administrative
control through commissions has become firmly established in
national affairs. Its use is not confined to the States. As
evidence of this, it is only necessary to mention the Interstate
Commerce Commission, with its vast power over the manage-
ment, service, and charges of railways, the Federal Trade
376 COMPAIL\TIVE FREE GOVERNMENT
Commission, and the Civil Service Commission. In Nation,
as well as in States, the idea of expert administration is gaining
recognition.
Movements for Administrative Reorganization. — From the
review of the executive organization in the States which has
been given, it is plain that administrative functions are per-
formed under conditions of chaos and irresponsibility which
make real efficiency impossible. This fact has come to have
general recognition. As a natural consequence, a strong de-
mand has developed in a number of States for thoroughgoing
administrative reorganization, in the interest of economy,
efficiency, and genuine democracy. This has led to the con-
sideration, both official and unofficial, of a number of proposed
schemes of reform. Space is lacking for a detailed discussion
of these. One feature, however, which is fundamental in all of
them, is the centralization of executive power and the definite
fixing of responsibility for its exercise. This involves, of course,
systematic regrouping and coordination of executive depart-
ments and offices. The purpose, in general, is to substitute
an executive organization similar to that of the national govern-
ment, in which the President is directly, definitely responsible for
the conduct of the administrative departments, for the loose,
decentraUzed, irresponsible system which prevails in the States.
Readjustment according to a uniform plan is hardly to be ex-
pected, but the tendency as revealed in the reorganization plans
proposed is clearly toward some arrangement modeled upon
the national executive. The beUef is coming to be widely
held that there should be a marked reduction in the number of
elective State offices and a corresponcHng extension of the
Governor's appointing power. Heretofore, dilTusion of power
has characterized the State governments, the opinion prevail-
ing that only with a decentralized system, in which the offices
were elective, couki jxjpular control be made effective. But
this opinion is yielding and the j)C()ple of the States are coming
to see that a multiplicity of elective offices is not essential to
democracy, and that a centralization of executive ix)wer is not
opposed to the spirit of free government.
Sjx-cial emi)hasis is to be placed upon this need for adminis-
trative reform. In all nations the great bulk of the work of
government is administrative in character ; yet in the United
STATE ADMINISTRATION
377
States administration has been notably, and at times noto-
riously, weak. This is particularly true of the State and local
governments; but the national government as well has, at
times, been conspicuous for its administrative failures. These
failures, in State and Nation, have been exceedingly costly, not
only in a financial sense, but also from the standpoint of popular
government. The people of America are becoming increas-
ingly insistent that government in all of its aspects shall be
thoroughly democratized, but as yet, generally speaking, they
have failed to comprehend the supreme importance of adminis-
tration and its vital relation to democracy. If democracy, if
true free government, is to succeed, efficiency in all of the pro-
cesses of government must be attained. In the United States
pubhc attention has usually been centered upon the legislative
function, the determination of pubhc policies, and compara-
tively little thought has been given to the administrative func-
tion, the machinery and methods by which the pohcies de-
termined upon are actually carried into effect. Yet public
policies, however wise in character, will prove disappointing, to
say the least, if they are carelessly, inefficiently administered.
It is of fundamental importance that the people of the United
States awaken to a realization of this fact, and set to work to
develop an administrative system that will insure the effective
execution of the pubhc will. This must be done, indeed, if the
government is to be genuinely popular and the experience of
the United States in solving the problems of free government is
to count for what it should in the promotion of world democracy.
In the case of the States, what the ultimate outcome will be
of the movement for the reorganization of their governments
cannot be foretold. It seems certain that important changes
will be made. But, whatever plan may be adopted, it may be
expected that there will be some centralization of executive
power and a more rational coordination of administrative de-
partments. Necessity compels readjustment of this character.
REFERENCES
Beard. American Government and Politics, Edition 1914, Chap. XXIV.
Bryce. The American CommomccaltJi, Kdition igio. Vol. I, Ciiaps. XLI,
XLIII, XLIV, XLV.
Dealey. Grou'lli of American State Constitutions, Chaps. XIII, XXII.
378 COMPARATIVE FREE GOVERNMENT
FiNLEY and Santderson. The Avicrican Executive and Executive Methods,
Chaps. I to XIV inclusive.
GooDNOW. The Principles of the Administrative Law of the United States,
pp. 94-109.
McCarthy. The Wisco?isin Idea.
Reinsch. Readings on American State Government, Chaps. I, V.
YotJNG. The New American Government and its Work, Chaps. XVII to
XXII, inclusive.
CHAPTER XXIX
The State Judiciary
The judicial power of the States, like the legislative and the
executive, is an original or inherent power of government. It
does not belong to the States by reason of any constitutional
provision, and is not limited to specific questions or to contro-
versies involving particular classes of persons. Because of this
the State courts differ fundamentally from the federal courts
with respect to jurisdiction. The latter exercise delegated
authority ; their powers are limited to certain kinds of cases
enumerated in the federal Constitution. But the courts of the
States are courts of general jurisdiction. They may hear any
kind of case, except as limitations are imposed upon them by
authority of the Constitution. Thus their field of action is
very large. It is in connection with them that the citizen most
frequently comes in contact with judicial processes, and through
their decisions that his private rights and obligations most often
receive judicial recognition and enforcement. This makes the
State judiciary an institution which is of high concern to every
person within the State's control.
It is to be borne in mind, in thinking of the work of the
State courts, that the ordinary field of private law for the most
part lies within the powers of the States. The rights of person,
property rights, domestic relations, business relations of all
kinds, the definition and punishment of crimes, are all within
the State's control, and may be regulated as the State legisla-
ture sees fit, except as restrictions are imposed on the legisla-
tive authority by the State constitution. The volume of law
which is administered by the State courts is naturally very
large. This has increased enormously in recent years, under
the pressure of a rapidly changing, developing social and indus-
trial life. The larger the number and the greater the complexity
of the laws, the greater is the work of the courts and the more
379
380 COMPARATIVE FREE GOVERNMENT
vital is the judicial function in the promotion of the public
welfare and the advancement of social progress. This is the case
in all political societies, but especially so in America where the
courts exercise the right to nullify legislative acts on constitu-
tional grounds. Because of this power the courts have direct,
positive influence upon public policies. Therefore the problem
of court organization and methods and the attainment of judicial
efficiency become matters of supreme consequence. If the
States are to perform well the parts they must play in the
evolution of the American democracy, the administration of
justice by the courts must be well performed. For good or for
ill, the American system gives to the judiciary a central place
in the governmental organization. This is no less true of the
States than of the Nation. It is therefore a necessity on the
part of the States to develop a judicial establishment that will
meet the peculiar needs of a politically virile, active, democratic
people who, by the nature of the government which has been
developed, are dependent upon the courts to a degree unknown
in other countries. That the State judiciary, on the average,
has satisfactorily met this requirement, few will assert. It is
a fact not to be disputed by any one conversant with American
politics that there is urgent need for radical changes in the
organization and methods of the judiciary in most of the States.
It may be said that this is one of the problems of fundamental
importance now pressing for solution. Indeed, it may be
doubted whether there is any other question before the people
of America which is so supremely important as this. To its
solution thoughtful, discerning minds arc turning with increas-
ing interest and growing ajjpreciation of its elemental character.
The State Judicial Systems. — The judicial systems of the
se\'eral States arc (lidicult to describe in general terms because
of the many variations in organization and powers, as well as
in the nomenclature applied to the courts. With the courts,
as with all their other institutions, the States have been free
to do as they i)lcascd, and although a certain degree of uni-
formity exists, the dilTerences are so numerous and in some
instances so striking that a large amount of detail is necessary
for a comprehensive treatment. This, however, is impossible
in this i)lace and only certain general features of the State
judiciary may be commented upon.
THE STATE JUDICIARY 381
There are at least three parts to the judicial organization in
all the States. These are the small local courts, with limited
jurisdiction ; the highest court of appeal, the head of the judicial
system ; and certain intermediate courts with general original
jurisdiction and appellate powers over cases which are appeal-
able from the local courts. The main outline of this system is
always provided for in the State constitution.
In most of the States the highest court is called the Supreme
Court, although in some instances other names are used such as
Court of Appeals, and Court of Errors and Appeals. Its work
is appellate and its decisions, of course, are binding upon the
lower courts. For the most part it passes upon questions of
law and not of fact. It is composed of a number of judges, say
seven or nine, the number varying in different States. The size
of the court, as also the question of compensation, is usually
left to the discretion of the legislature. The State Supreme
Court has in the State system relatively the same position as
that held by the Supreme Court of the United States in the
federal system. One of its important powers is to pass upon
the constitutionality of State laws.
The court at the bottom of the State system is the Justice of
the Peace court, which has jurisdiction over petty offenses and
civil cases which involve only small sums. Its powers and pro-
cedure are fixed by statute. In some instances, in the larger
cities there are two sets of these courts, one for hearing criminal
cases and the other civil cases. These Justice courts are no-
tably faulty and inefficient in their work. As a usual thing
special knowledge of the law is not required of the justices in
charge.
The intermediate courts vary a good deal in organization
and powers. Two kinds of courts in this group arc to be noted.
One is the County Court which is to be found in many of the
States. Its jurisdiction is limited, though much larger than
that of the Justice courts. It may hear a good many civil
cases involving fairly large sums, though the limit varies greatly
in dififerent States, and also has jurisdiction in most criminal
cases which arise in the county. Ordinarily it passes upon
appeals from the Justices of the Peace. In some of the States,
furthermore, certain administrative duties are imposed on it
by law. In two States, West Virginia and Missouri, the County
382 COMPARATIVE FREE GOVERNMENT
Court is really not a court at all, having only administrative
functions to discharge. In a few States this court has probate
jurisdiction and certain administrative functions, but no juris-
diction in civil and criminal cases. ^ These courts are sometimes
known as District Courts or Courts of Common Pleas.
In a good many of the States there are courts above the
County Courts, but inferior to the Supreme Court. These
bear different names, such as District, Superior, or Circuit
Courts. Their powers are larger than those of the County
Courts, involving original jurisdiction in both civil and criminal
cases. It is customary to allow these courts to pass final judg-
ment in cases in which the sum involved is not in excess of a
fixed amount, the latter varying from State to State. When
appeals arc permitted, they are taken to the Supreme Court.
In some States the distinct County Courts do not exist and
the District or Circuit Court is the only one intermediate
between the Supreme Court and the Justices of the Peace. A
number of counties are grouped together to form the district
or circuit. The judges, of whom there may be several, go
from county to county within their district and hold court at
stated times. Though the judges are from a district larger
than a county, this court in effect is a real county court. The
cases tried in any particular county, except when there has
been a change of venue, are those which arise only in that
county. The records of the cases are kept at the county seat.
The clerks, sheriffs, and prosecuting officers are county officials.
The jurors, both grand and petit, are residents of the county.
Thus essentially the court is a county court, though bearing
another name.
There are in some States, in addition to those of the regular
hierarchy, a number of special courts whose duty it is to look
after jmrticular kinds of questions and cases. Such are the
probate or surrogates' courts for the settlemeiil of estates;
juvenile courts to [)ass upon the delinquencies of children ;
courts of claims ; chancery or equity courts ; and special mu-
nicipal courts in the larger cities. Except as provided in the
State constitution, the judicial organization is subject to change
or extension at the discretion of the legislature. New courts
are established when there is need.
' Fairlic, " Local Government in Counties, Towns, and Villages," p. 98.
THE STATE JUDICIARY 383
Selection and Compensation of Judges. — In the selection of
the judges various methods are employed in the different States.
The most common is that of election by popular vote, usually
for short terms of service. This applies to Supreme Court
judges as well as to judges of the lower courts, although the
members of the high court usually serve longer terms than do
the lower judges. Where popular election has prevailed, it has
been customary for the political parties to put up candidates
for judicial positions just as for other public offices. Sentiment
is tending away from partisan judicial elections, however, and
in some States attempts have been made by law to insure non-
partisan elections. Many serious objections are made to popu-
lar election of judges, particularly to partisan popular election,
combined with short terms. Bryce's expression upon this is to
the point, and represents the view of many Americans. " Popu-
lar elections throw the choice into the hands of political parties,
that is to say, of knots of wirepullers inclined to use every
office as a means of rewarding political services, and garrisoning
with grateful partisans posts which may conceivably become of
political importance. In some few States, judges have from
time to time become accomplices in election frauds, tools in the
hands of unscrupulous bosses. Injunctions granted by them
were moves in the party game. Now, short terms, though they
afford useful opportunities of getting rid of a man who has
proved a failure, yet has done no act justifying an address for
his removal, sap the conscience of the judge, for they oblige
him to remember and keep on good terms with those who have
made him what he is, and in whose hands his fortunes lie. They
induce timidity, they discourage independence." ^
Another method of selection is appointment by the legisla-
ture. This is used in four States, two in New England, — Ver-
mont and Rhode Island, and two in the South — Virginia and
South Carolina. Election by the legislature does not meet
with much approval ; in fact, it is generally condemned. The
legislatures are made up of party men and election by them is
likely to be quite as partisan as popular election. The stand-
ard of political morality in the State legislatures is not always
very high and the log-rolling methods so commonly employed
are particularly objectionable in the appointment of judges.
'Bryce, "The American CDinmonwealth," New and Revised Edition, Vol. I, p. 512.
384 COMPARATIVE FREE GOVERNMENT
The third method of selecting judges is that of appointment
by the Governor, subject to confirmation by the Governor's
Council * or by one or both of the houses of the legislature. Seven
States, including Massachusetts whose judiciary has always
ranked high, employ this method. In two of these, Massachu-
setts and New Hampshire, the appointment is for life. This is
true, also, of Rhode Island, in which the judges are appointed
by the legislature. In all of the other States the election or
appointment is for a definite term, the length of which varies
from two years in Vermont to twenty-one years in Pennsylvania
for members of the Supreme Court. A six-year term is pro-
vided in some States, and in others one of twelve years.
With regard to the manner of selecting judges and the length
of their terms, it is difhcult, indeed impossible, to forecast what
the years will develop. Dissatisfaction with popular election
is unmistakable and is undoubtedly growing ; but this practice
is deeply rooted, and a vast amount of prejudice exists against
entrusting the appointment of judges to the Governor, even
though his action must be approved by the legislature or by
one of its houses. The power of the courts to nullify legislative
acts is looked upon as a political power of the utmost impor-
tance, and the opinion prevails that the judges who exercise it
should be directly responsible to the people. There is some
indication, however, that sentiment is slowly developing in favor
of the appointive plan, particularly in connection with the
higher judgeships. The general success of the federal courts,
whose judges are appointed under life tenure, has had its effect
upon popular opinion. What is safe and satisfactory for the
Nation should be equally so for the States. The right to elect
the local judges is everywhere jealously guarded and there
is little to suggest any marked departure from the method
in use.
The compensation of judges is low, much lower than that
given judges in England and other European countries. The
highest salary i)aid to any of the State judges is $17,500, the
compensation received by Supreme Court justices in certain
districts in the State of New \\)rk. The chief justice of the
New York Court of Appeals, the highest court in that State,
' '1 he (iovernor's ('(nitKil, lommon in the early life of the Stales, is retained l)y
only three of the Commonwealths Massachusetts, Maine, and North Carolina.
THE STATE JUDICLARY 385
however, receives only $14,200 a year, and the associate judges
$13,700. In Vermont members of the Supreme Court receive
only $2500. This is the lowest salary paid in any State to judges
of the highest court. Salaries of from $5000 to $6000 are
found in many States and are about the average. Of course
judges of the lower courts receive, as a rule, a proportionately
lower compensation. The general effect of the low salaries is
obvious. The strongest, most capable lawyers are not drawn
to service on the bench. An attorney with an income from five
to ten times as large as the salaries of the judges before whom
he practices ordinarily is not inclined to seek judicial honors.
Yet the courts should command the highest talent if their work
is to be of a high order.
Jurisdiction of State Courts. — As observed in the opening
paragraph of this chapter the State courts have a general juris-
diction ; they are not confined by constitutional provision to a
limited field of litigation. The significance of this is clear, but
it becomes all the greater when it is recalled that the judgments
of the State courts are final in all matters that lie within the
control of the States. Their decisions are not subject to review
by the federal courts, unless rights are claimed under federal
law or the federal Constitution. In that case, of course, if the
alleged rights are denied, the federal courts themselves must
determine whether the question at issue comes within the
authority of the States or that of the Nation. The Nation's
supremacy in its own sphere must be maintained by its own
agents, if its authority is challenged.
The bulk of the work falling upon the State courts arises out
of litigation involving the State's own laws. In the application
of these the court of last resort in the State gives the final,
authoritative interpretation, if there is no conflict with federal
authority. But the State courts are not confined to the appli-
cation of State laws ; frequently they are called upon to adminis-
ter federal laws. The federal Constitution, statutes, and
treaties are, by the terms of the Constitution itself, the supreme
law of the land, and are as much binding upon the State courts
as upon the federal judiciary. It is the duty of the State courts
to apply these federal laws, therefore, if it is necessary to do so
to settle cases before them. It is only in case the rights asserted
under federal laws are denied that the national authority con-
2C
386 COMPAIL\TIVE FREE GOVERNMENT
cerns itself in the matter. The Nation cannot permit its laws
to be nullified by the States.
Under authority of an act of Congress a suit may be removed
from a State court to a federal court if it is of such character
that it might have been brought in the federal court in the first
place. If the State court should refuse to grant the transfer
when asked, and satisfactory showing is made, the federal court
of proper jurisdiction may itself order the removal, if the appli-
cation has been made according to the method prescribed by
law. As stated in the discussion of the federal courts, their
jurisdiction in the cases recognized by the Constitution as lying
within their field is not exclusive unless Congress makes it so
by law. That is, if Congress permits, the State courts may
exercise a concurrent jurisdiction. This has been authorized
in a good many instances, but, as observed, removal of such
cases from the control of the State courts is provided for if this
seems necessary to protect the federal authority. Discussion
of the technical procedure by which this is done is aside from
the present purpose ; all that is necessary here is to make plain
the possibility of removal.
Character of State Law. — As remarked above, the chief part
of the State judiciary's work is administering the State's own
laws. These arc exceedingly numerous and give occasion for a
huge volume of litigation. A word concerning their general
character is desirable.
Two kinds or bodies of law prevail in the States. These are
the Common Law and the statutory law. Statutes, of course,
are now the chief source of law. The Common Law was trans-
planted to America from England by the early colonists and
made the basis of American jurisprudence. Its influence upon
American development, as ujion that of England, has been pro-
found. All of the States except one have the Common Law in
force to a greater or less extent. Louisiana, the exception, has
the Roman Law system, based on the Code Napoleon ' ; but
even that State has, by statute, adopted the Common Law of
crimes. In the Xation the Common Law does not i)revail, the
federal courts administering it, when occasion demands, only
as a part of State law. The Common Law in America is not
now identical with that of England, of course, because of the
' Below, Chap. XLIX.
THE STATE JUDICIARY 387
adaptation which has been made by the rulings of the American
courts to New World conditions. For the same reason the
Common Law system of one State may vary materially from
that of another. The fact is to be borne in mind that the
courts of a State are independent in their judgments ; they are
not bound by the decisions of the courts in other States. They
may be influenced by these decisions ; they may, indeed, choose
to follow them, but they are at liberty to apply the law in their
own way. The result is that the principles of law accepted and
enforced in one State may differ a good deal from those in an-
other. Of course a decision of a State's high court is binding
upon all of the lower courts.
Of statutory law, Httle need be said. Its volume is rapidly
increasing in every State. Hundreds of statutes are likely to
be added at each session of a State legislature. Many of these
are sadly at fault both in content and form. The consequence
is new causes of Htigation and a steadily increasing burden upon
the courts, — a burden which would be lightened to a consider-
able extent, if the statutes were properly drafted. The general
effect is to make the courts objects of criticisms which really
should be directed to the legislatures. It is a conspicuous fact,
indeed, that the courts are frequently held blameworthy for
setting aside legislative enactments and interpreting statutes
contrary to the legislative intent, when the fault was with the
legislatures themselves which should have seen that the laws
were drafted so as to stand the severest judicial scrutiny.
It should be noted in this connection that a large proportion
of the statutes enacted by the legislatures deal with govern-
mental organization and functions, with administrative methods
and problems, and therefore do not affect the general body of
private law. This does not mean that private law is not sub-
jected to legislative control and modification, for it is thus con-
trolled in many important respects. It does mean, however,
that to a large degree the development of private law is left to
the courts. The tendency is clearly toward an invasion of the
Common Law field by statutory regulations. As illustrating
the activity of the legislatures in this respect, attention may be
called to the statutory penal codes which have been substituted
in many States for the Common Law of crimes, and to the
enactment of laws regulating in detail both criminal and civil
388 COMPARATIVE FREE GOVERXMEXT
procedure. In some States, New York especially, codification
of the Common Law upon particular subjects has been carried
out and the Common Law provisions have been transformed
into statutes. In a few States the attempt has been made
to codify the entire civil law. This has not been particu-
larly successful, however, and it may be doubted whether the
States generally will go to this extreme. The beUef is wide-
spread that extended codification tends to make the law too
inflexible.
In connection with the Common Law, it is important to note
that the English system of Equity was also transported to
America and was adopted by most of the States essentially as
it was administered by the English courts. It will be recalled
that Equity jurisdiction is conferred on the federal courts by
the Constitution of the United States. Equity rules are still
enforced in the States. In some there are distinct Equity courts,
but in others, as is also true of the federal judiciary, the same
courts administer both Law and Equity. In still other States
the distinction between legal and equitable remedies has been
abolished by statute. This does not mean, however, that the
Equity principles are abolished ; the change affects merely the
remedies afforded by the Equity system, which, under the
change, are applied according to the same procedure as those
of the Common Law. It is a significant fact that in States
where the Law and Equity systems are maintained distinct,
whether administered by the same courts or not, there is ap-
parently an increasing disposition to resort to the E(|uity juris-
diction, which is administered by the judges without the aid of
juries, in preference to that of the Law. This is due to the
im[)erfcct working of the jury system. Attorneys, where the
choice of remedies exists, frequently prefer Equity actions
before judges to Law actions before juries. Moreover, litigants
of their own choice frequently have the same preference.
Though the jury system is a highly cherished institution, it is
generally conceded that under the rules usually governing
American courts its working is far from ideal.
A word may be added concerning the juries, which are im-
portant parts of the judicial machinery. Both the grand jury
and petit or trial jury are generally used. Tlie function of the
former is the returning of indict menls upon criminal charges.
THE STATE JUDICIARY 389
In the federal courts, by constitutional provision, no person
may be tried for a criminal offense except upon a grand jury
indictment. In many of the States a similar provision is con-
tained in the State constitution. In some States, however, a
grand jury charge is not necessary ; prosecution may be begun
upon the filing of an information by the prosecuting oflScer.
The trial jury is everywhere used, but the rules governing it
vary from State to State. The usual thing is for the jury to
pass only upon questions of fact, leaving to the judge the deter-
mination of the law. The size of the jury varies somewhat,
even in the same State, depending upon the nature of the suit
at trial. It is not possible to discuss here in detail the rules
applying ta juries or to enumerate the various criticisms made
concerning their work. One point only will be mentioned, —
the usual requirement of a unanimous verdict. This makes it
possible for one juror to " hang the jury " and prevent a verdict.
This is a common occurrence, in fact, and many mistrials have
resulted from the obstinacy or corrupt action of a single juror.
In some States the requirement of a unanimous verdict has been
done away with.
Criticism of the State Judiciary. — Criticism of the courts is
widely prevalent in America. There is, indeed, very great dis-
satisfaction with judicial administration. Justice has by no
means always been done. Equality before the law oftentimes
has been a fiction rather than a fact. The legal rights of the
rich not infrequently are much more certain of protection than
are the rights of the poor. Particularly has the administration
of the criminal law been faulty. In every State glaring examples
may be found of breakdowns in the administration of punitive
justice. The conditions are far worse in some States than in
others, as a matter of course, but, taking all the States together,
criminal law administration is notably, inexcusably weak. A
common opinion is expressed in the frequently quoted state-
ment of President Taft : " No one can examine the statistics
of crime in this country and consider the relatively small num-
ber of prosecutions which have been successful, without realiz-
ing that the administration of the criminal law is a disgrace
to our civilization." ' The reasons for this lamentable condition
are numerous. As suggested above, the working of the jury
' Reinsch, " Readings on American Slate Government," p. 177.
390 COMPARATIVE FREE G0VERX:MENT
system is in part responsible. The machinery of the courts is
cumbersome and slow moving. Judges fail to retain proper
control over the trial of cases or are prevented from doing so
by rules of procedure imposed by the legislature. The right of
appeal is carried to unreasonable lengths. Technicalities of
procedure are often exalted in the estimation of judges to a
place which is beyond all reason. In many instances guilty
persons go free of punishment because of minor procedural
errors which in no way affect the question of their guilt. The
seeking of justice is made wearisome by needless delays and by
unnecessary expense. Flagrant failures to carry out the con-
stitutional provision, found in all of the States, which guaran-
tees " speedy " trials to persons charged with crime, are no-
toriously common. In short, inefficiency characterizes to a
high degree the criminal law administration in the American
States. But this inefificiency is not confined, however, to the
enforcement of criminal laws; it frequently characterizes civil
procedure as well. It is not to be understood, of course, that
the courts of all the States are equally open to the criticisms
which have been suggested, and to others which might be
added. But in every State the problem of judicial administra-
tion is of prime importance, and in every State modification of
judicial procedure is urgent.
As would naturally be expected, llie unsatisfactory conditions
which have been mentioned have led to a demand in many
States for radical reforms in connection with the judicial system.
There is no unanimity, however, as to what should be done.
It is urged by some that there should be a popular recall of
judges. It is urged by others that there should be a thorough
revision of the rules of procedure and that the judges should be
given greater power in the conduct of cases. By still others it
is argued that a complete reorganization of the judicial system
is necessary. Important changes in the relations of the bar
to the courts are suggested, as are, also, changes in ihr jury
system. These and many other proposed reforms with resjjcct
to particular matters have been brought forward, but future
developments must determine what fundamental changes shall
be made. In some States substantial progress has been made
in the sim[)lification of court ])r()cedure and in expediting judicial
business. The results of these attenijjts at reform have been
THE STATE JUDICIARY 391
wholesome and give promise that ultimately in all of the States
the administration of justice will be upon a high plane of efB-
ciency.
It needs no particular emphasis to make it clear that the
whole problem of judicial administration is one of fundamental
concern to the American people. The courts have a peculiar
function to perform in the evolution of the American democracy.
Their position is such in the constitutional system that upon
them may depend political as well as legal developments of far-
reaching influence.
REFERENCES
Baldwin. The American Judiciary.
Beard. American Government and Politics, Edition 1914, Chap. XXVI.
Bryce. The American Commonwealth, Edition 19 10, Vol. I, Chap. XLII.
Reinsch. Readings on American Slate Government, Chaps. Ill, IV.
PART II
ENGLAND, FRANCE, GERMANY,
AND SWITZERLAND
ENGLAND
CHAPTER XXX
The Cabinet System
The Cabinet system involves a division of the executive into
partisan and non-partisan elements. It places the non-partisan
functions in the hands of a monarch or, as in the case of France,
a president, while the partisan functions pass into the hands of
the chief ministers of state. The body of chief ministers con-
stitutes the Cabinet. They are usually members of the legis-
lature and as party leaders, whether members of it or not, they
control the legislature. Separately each member of the Cabinet,
with an occasional exception, administers a department of the
executive, but they are jointly responsible for the conduct of
the government. At the head of the Cabinet is the Prime
Minister who presides at its meetings and is its chief spokes-
man in the legislature and before the country. The system
thus requires two ofificial heads. The King or President is the
nominal head, or ruler of the entire people, and his duties are
non-partisan. The Prime Minister speaks with authority on
all matters of disputed party politics.
" Parliamentary government " is a term often used as a syno-
nym for Cabinet government. The system has arisen out of
conflict between monarchs and representative assemblies. In an
absolute monarchy the monarch rules through officers whom he
appoints. Monarchy becomes limited, or constitutional, when
a representative assembly is added, although the chief officers
in the executive may still be subject to appointment and re-
moval by the monarch. A constitutional monarchy becomes a
Parliamentary or Cabinet government when ihe representatives
of the people assume thci:)ower of dismissing the King's ministers.
Political power then passes from the monarch to the legislature.
There is a sense in which it may be said that the Cabinet con-
trols the legislature, because it must command the continuous
support of a majority of the legislature. The legislature also
395
396 COMPARATIVE FREE GOVERNMENT
in a sense controls the Cabinet, because at any time the ma-
jority may be changed to a minority, thus forcing the Cabinet
to resign. The term " Cabinet government " is suggestive of the
control of the Cabinet over both administrative and legislative
business. The term "Parliamentary government" emphasizes
the authority of the legislature. Another synonym is equally
significant. Cal)inet government is denominated " Responsible
government." The term calls attention to the united, concen-
trated responsibility for both executive and legislative business
which rests upon the Cabinet. The Cabinet is directly respon-
sible to the representatives of the people for its policies. This
relation to the legislature is the essential feature of '' Respon-
sible government."
These few characteristic quaUties are found in every form of
Cabinet government. A brief comparison of the English and
American systems will serve to bring out more clearly these dis-
tinguishing features. In the Cabinet system the legislature
and the working executive are united. Those persons who are
responsible for the administration of the laws are not merely,
as usual, members of the legislature ; for the time being they
also control legislation. The members of the Cabinet hold
ofiice because they have the support of a majority in the
legislature. When they cease to have this support they give
I)lace to ministers who do lead or control or, at least, have
the support of the legislature. Bagehot calls the Cabinet a
hyphen, or a buckle, by which the two departments of gov-
ernment are united.'
The American system involves a separation of the executive
and the legislature. The two departments are assumed to be
equal and coordinate, but tlu- lawmakers are not responsible
for administration. Executive officers are not mem])ers of the
legislature. Tiiey recommend legislation and may appear before
committees of the legislature in support of their measures; but
they are not memljcrs of either house of the legislature, and it
is a rare excei)tion for an executive officer to be permitted to
take part in legislative procedure. The theory of the Constitu-
tion recjuires complete .separation of dej)arlments. Both the
Chief Executive and the members of the legislature are chosen
by the people and arc equally, coordinately, and independently
'Bagehot, "The English Constitution," p. 82 (Edition of 1877).
THE CABINET SYSTEM 397
responsible to the people for the performance of governmental
functions looked upon as separate and distinct.
Personal vs. Corporate Responsibility. — Executive respon-
sibility in the American system is personal. The President of
the United States as Chief Executive is individually respon-
sible for the entire field of federal executive business. The
heads of the departments of administration are appointed by
him, are removable at his will, and are held responsible to him.
The chief advisers of the President are, as a body, called a
Cabinet, but they are not a Cabinet in the English sense of the
term. They advise the President on matters of general execu-
tive policy, but he may entirely disregard their advice. Each
member of the President's Cabinet is responsible to his chief
for the administration of a separate department as, for example,
the war, navy, or post-office department ; but there is no such
thing as joint cabinet responsibihty.
The English Cabinet is itself a sort of corporate personality.
As a body it is held responsible both to the legislature and to
the people. The Cabinet and not a chief person rules and
governs. It is true that most members of the Cabinet are the
heads of separate departments of the executive ; but this fact
is obscured by the emphasis given to the joint responsibility of
the body as a whole, for both legislative and executive poHcies.
The American executive is personal ; not a body of men, but
a man governs in the case of the general government, or a
half dozen men independently elected, in the case of the state
executives, but in either case the rule is personal and not cor-
porate.
King or President in Cabinet Government. — The English
Cabinet, however, does not include the whole of the executive.
The system requires a person, King or President, who is nominal
head of the state, and who is, in a sense, above both Cabinet
and legislature. This chief person performs important functions
in the making up of cal^inets and the harmonizing of cabinet
and legislature. He is usually described as irresponsible. He
is not responsible to the legislature, because his duties in certain
emergencies may require him to traverse the will of the legisla-
ture. He is not responsible to the Cabinet, for the same reason,
and because, nominally, the cabinet members are his ministers
and act in his name. In an important sense, however, the chief
398 CO]\IPARATIVE FREE GOVERNMENT
person is responsible to the people. It is his solemn duty to
seek to give effect to the will and choice of the nation. In no
case is he permitted to enforce his own will against the will of
the nation. Fully developed Cabinet government is a democ-
racy. In so far as the nominal head of the state exercises per-
sonal power against the will of the people, the government is
not that of a cabinet, but that of a despot.
In England the nominal head of the executive attains and
maintains his position by birth and education. In France the
two houses of the legislature in joint session elect a President
once in seven years, not to govern, but to harmonize the func-
tions of those who do govern.
The Judiciary in the Two Systems. — The contrasts between
Cabinet and Presidential systems of government are by no
means exhausted in the relations of the executive to the legis-
lature and the personnel of the two executives. The judiciary
of the two systems presents differences equally notable. Cabinet
government is an agency for expressing the will of a ruling vot-
ing constituency. The Cabinet represents and personates con-
tentious politics. For the time, it is the agent of the dominant
party as represented in the legislature. As the agent of the
legislature the Cabinet acts without legal restrictions. In a
Cabinet government there can be no legal restrictions. The
legislature, including as it does the executive, represents supreme
power, and the system does not admit of legal checks. Are the
courts, then, at all times subject to the will of Parliament?
Assuredly they are. To one trained under the English system
it is unthinkable that a court should presume to set aside an
Act of Parliament. Parliament ordains and establishes the
courts and defines their functions. Judges are removable by
act of the two houses. If tiie judges interpret a law in a manner
not satisfactory to the government of the day, the law may be
changed. The judiciary is non-political, or outside of conten-
tious politics. Judges are trained to respect the will and inten-
tion of the lawmakers in their inter])retation of statutes and to
consider public <)i)inion in their interpretation of Common Law.
Hence the Judiciary is, in fact, largely indejjendent of party
politics.
The American system is strikingly dilTerent. In it the powers
are divided and set one against the other, so that no oflker or
THE CABINET SYSTEM 399
combination of officers is in a position to express without re-
straint the will of the state. The legislature acts subject to
limited executive veto ; and when a law has been approved,
the judiciary may nullify the act, basing the decision on some
clause or some principle embodied in the written Constitution.
In theory the people may change the Constitution, but in the
case of the federal Constitution the method is so complicated
as to render a change extremely difficult. The result is that the
judiciary is continuously brought into poUtical partisan con-
troversy.^
The Natural vs . the Artificial in Government. — Again, the
two systems of government are contrasted in respect to origin
and nature. One is derived from a process of evolution ; the
other is a product of logical analysis and artificial construction.
Bagehot is surely correct in saying that a Cabinet government
could never have been the result of deliberate plan and inten-
tion. It could have originated only through a long process of
adjustment of forces to solve temporary difficulties. The
system as known to-day is of recent origin.
The distinctive features of the presidential system are the
result of conscious logical analysis. The system could never
have come into existence except as the result of a dehberate
plan. Each of the systems stands for certain well-known and
enduring qualities found in all governments, the artificial and
the natural. The English were continuously seeking to create
specific agencies for the safe-guarding of liberty and the pro-
motion of efficiency, but these, for the most part, failed.- The
Cabinet developed unconsciously as a by-product of continuous
striving for limitations on the Crown.
When experienced Europeans were transplanted to America,
there ensued a great contribution to conscious, artificial state-
building unhampered by custom or tradition. Where old names
were used and old customs were apparently followed in the new
environment, they became essentially new. Men knew when
and how each governmental institution was created in the
wilderness. Boundary lines were artificially drawn, crooked
• Above, pp. 277-280.
^ Conspicuous examples of such efforts are the appointment of twenty-five barons
for the enforcement of Magna Charta, the Provisions of Oxford, Temple's scheme
for the organization of the executive.
400 COMPAR.\TWE FREE GOVERNMENT
lines became straight, townships, counties, and States became
rectangular and were bounded by meridians and parallels.
Everything was given an artificial cast. Statesmen of the Ameri-
can Revolution distrusted direct popular rule, so they ordained
by a constitution which the people could not easily amend, that
executive power should rest in the hands of a President indirectly
chosen, and that abuse of power should be prevented by separat-
ing the legislature, executive, and judiciary, and making each
a check upon the others. It was a device to give effect to a
theory. Thus the two Governments of England and America
show diversity in origin ; in one the unconscious element is
dominant, in the other the conscious, yet in practice this
difference grows less distinct, each form of government tending
to assume the qualities of the other ; for government is by nature
partly artificial and j)artly natural.
The Relation of the Cabinet to Party. — The English Cabinet
is identified with a political party ; it is itself the one organ for
giving final expression to party opinion and party policy. By
the very acts of assuming and exercising responsible govern-
ment the Cabinet fulfills party pledges and formulates party
platforms. Cabinet government of the English type is a real
government. The Cabinet holds office because at a partisan
election their party has obtained a majority in the House of
Commons. The life of the Cabinet is dependent on the con-
tinued approval of a majority of the House. When a Cabinet
fails to command a majority it ceases to govern, though it still
maintains its integrity as a body of party leaders. The system
assumes that there shall Ijc two ruling i)arties which shall alter-
nately assume control of the government. The defeated Cabi-
net still holds its position in Parliament as the leader of the
party. It is variously described as the King's Opposition or the
" Shadow Cabinet." The rival groups of leaders continually
face each other in Parliament, the one in ofiice and the other a
candidate for office. The Opposition serves the country as
expert critics of the Government. The ])olicy of the Cabinet
iscontiiiuallv niodificd by the criticism of leaders of the opposing
party.
Only the English type of Cabinet government identifies
government with a party. On the Continent of Europe cabi-
nets are composed of combinations of leaders of various parties.
THE CABINET SYSTEM 40I
The cabinet is not itself the organ of a party ; it usually repre-
sents a number of party groups. No single party commands a
majority in the legislature. Temporary majorities are made by
coalitions of parties. The Cabinets are, indeed, made up of
party leaders, but leaders of different parties. The parties
influence government, but they do not govern. No Shadow
Cabinet confronts the government ready to take office as soon
as the ruling Cabinet is defeated. After a cabinet crisis often
a number of the same party leaders will reappear in the newly
organized Cabinet.
The President and the Monarch. — The Presidential system
of government was organized with the distinct intention of
excluding monarchy. In this connection it is a matter of in-
terest to note that in its practical working the American system
has tended to give increased prominence to personal rule and
personal leadership. This is true in respect to legislation, as
well as in executive policy. So great have been the difficulties
in attaining efficiency and responsibility in legislative bodies
with restricted powers, that the people have been led to look
for these qualities in the mayors of cities, the governors of
states, and in the President of the United States. Some would
say that the discarded monarchy is being restored by a process
of evolution. On the other hand, in countries where the mon-
archy is retained, personal rule is being eliminated from govern-
ment. The nominal chief magistrate personates power and
symbolizes unity, while a corporate body of men actually exer-
cise power. It can no longer be maintained that monarchy and
democracy are exclusive terms.
It is now well understood that hereditary monarchy is not
at all necessary to the maintenance of the Cabinet system.
The experience of France proves that an elected President may
readily take the place of the monarch in that system. The
American government could be transformed into a cabinet
government by fusing together the executive and the legisla-
ture, and still remain a republic. In that case the President
would cease to be the responsible executive, but would remain
the dignified and apparent head of the state, and would become
the coordinator and adjuster of the governmental powers.
In other words, the President would become practically a king
in a democratic state, but if the American President should be-
402 co:mparative free government
come a hereditary monarch, still retaining all his powers, the
state would be essentially despotic. The Cabinet is the one
clearly recognized agency for preserving democratic monarchy.
REFERENCES
Bagehot. The English Constilution, Edition Second, Chaps. I and II.
Dicey. The Law of the Constitution, Edition Eighth, Chap. I.
Lowell. The Government of England, Edition 1908, Chaps. I and II.
Ogg. The Governments of Europe, Edition 1914, Chaps. I to III.
Wilson. The Slate, Revised Edition, Chaps. X and XI.
CHAPTER XXXI
The Nature of the English Constitution
The state in England is personified in its King. In his name
all the processes of government are carried on. By his Ministers
the laws are executed ; as his agents the two houses of Parlia-
ment make and amend laws and vote supplies ; in his name the
courts of the realm dispense justice. Every official act is
nominally that of the sovereign. Nevertheless " the King
reigns but does not govern." He may influence administrative
and legislative policies, but the real power rests with a repre-
sentative assembly under the guidance of groups of party leaders
whose leadership is entirely unknown to the law. The govern-
ment is of two parts, the one formal and legal, the other not rec-.
ognized by law but active and efficient.
All this is as different as possible from the form of govern-
ment in the United States. For the most part, the formal
Constitution of the United States and the actual working con-
stitution are identical ; at least they are not directly contradic-
tory. A fundamental law coming from the people as the source
of power created the office of President and in part defined its
powers. This law also called into existence and empowered
the two houses of the legislature. It laid upon Congress the
duty of organizing a judiciary whose powers it in part defined.
The work was done consciously with the purpose of creating
" a republican government."
The Kingship and the House of Lords. — In the English
Constitution, no conscious effort toward democracy is evident.
The present form of government is a growth, not a creation.
The origins and early character of the Kingship, the central
fact of the legal Constitution, is shrouded in the mysteries of
the past. It is known that in the fifth century conquering chiefs
from the Continent displaced Roman authority in the British
Isles. Numerous petty kingdoms arose, and in the course of
403
404 COMPARATIVE FREE GOVERNMENT
time became uniled under the West Saxon rulers. The con-
quests of Danes and Normans in the eleventh century brought
modifications in the kingship. Thus, by a series of accidents
and favorable conditions, the Crown came into existence. At
no time was the office definitely established. By habit, by
custom, by legal fiction, the monarch came to be accepted as
the source of all law, all authority, and these legal fictions re-
main in the processes of government to-day.
The House of Lords is equally venerable and uncertain in
origin. Freeman, the historian, considers the Upper House of
Parliament at least as old as the monarchy itself. Before there
were hereditary monarchs, tribal or national assemblies existed
whose members chose leaders of the host in time of war, and who
were active in changing the temporary leader into a permanent
ruler. The early kings were elective. The Council selected
a member of the ruling family. As the kingship grew in im-
portance the Council remained as the chief agency through
which the king maintained working relations with his people.
Its early Saxon name was Witan or Witenagamote. After the
JSforman Conquest it was known under various names as Curia,
Commune Concillium, Council, or Assembly of Notables. Later,
after elected members had been added and these had separated
to form a House of Commons, the old assembly continued under
the designation of House of Lords.
The House of Commons and the Judiciary. — The House of
Commons is not .so old as the institution now called the House
of Lords, but its origin is scarcely less mysterious and uncertain.
A definite date, 1295, can be assigned, however, as an important
period in the history of the Lower House of Parliament. In
that year Edward I called to the meeting of his Great Council
representatives from counties, boroughs, and cities. To this
assembly the name " Model Parliament " has been given.
I'^arl Simon had called a similar assembly as early as 1265 and
on many occasions counties and boroughs had l)ecn invited
to send representatives to confer willi the King in Council.
The House of Commons did not originate in the Model Parlia-
ment of Edward I. It came into existence, no one knows how,
during the long reign of ICdward HI (1,^27 1.^77), when the
members chosen from (•()ur>(ies and Ijoroughs became separated
from the Council and fcjrmed a disiintt House.
THE NATURE OF THE ENGLISH CONSTITUTION 405
The word Parliament came into use with the Normans from
France. It was early applied to meetings of the King in Coun-
cil when engaged in judicial business. Later the term was used
to designate the ordinary meetings of the Council. When
representatives were added, and two houses were formed, Parlia-
ment remained the convenient designation of the body composed
of the King and the two Houses.
In the early days the King in Council exercised all the high
powers of government, legislative, executive, and judicial. The
Council with the King was then the highest court of the realm.
As early as the reign of Henry I (1100-1138), members of the
King's Council visited the counties and administered justice
in the King's name. During the reign of Henry II (1154-
II 89), a body of men under the name of Ciiria Regis, became
differentiated from the Council, as a Judicial Committee ad-
ministering justice in the counties. A hundred years later
committees of the Curia Regis took the form of permanent courts
of law separated from the Council. The King, however, still
retained supreme judicial power. The Council was still the
highest court of appeal. As a heritage from these, its early
powers, the House of Lords to-day is the highest court of ap-
peal for nearly all cases in the United Kingdom, and a commit-
tee of the Privy Council is the highest court of appeal for India
and the Colonies. Thus the courts of England, like the two
Houses of Parliament and the Crown, have been gradually
evolved out of the habits, customs, and incidents of English
history. The English form of government has come into
existence through a long process of adaptation and adjustment.
Written vs. Unwritten Constitutions. — In outward form
resemblances exist between the English and American govern-
ments. The President and his Cabinet suggest the King and
his Ministers ; the upper and lower houses of Congress, the two
houses of Parliament. In both countries a distinct and separate
judiciary exists. These are the most striking likenesses. All the
American organs of government have been created by the enact-
ment of a written Constitution which is their warrant for existence,
and their relations are in a measure defined by this document.
The courts recognize it as supreme law. Any law enacted by
the President and Congress must be in harmony with the Con-
stitution or the judges will refuse it judicial sanction if its valid-
4o6 COMPARATR^ FREE GOVERNMENT
ity is questioned. The position of the Judiciary in England is
radically different. Anything which the King in Parliament
does or enacts is legal. All power rests with the King in Parlia-
ment or the King in Council. Parliament itself determines
the rules that shall govern the conduct of Crown, Commons,
and House of Lords in their relations to one another. For the
most part these rules are mere understandings that have grown
up in the past. Disagreements arising among the three constit-
uent parts of Parliament must be settled by argument, compro-
mise, or force. There is no superior law or constitution to
compel harmony. Parliament cannot do an unlawful thing
because it is supreme in all matters of law.
The English Judiciary, then, is distinctly subordinate to
Parliament. It is not, as is the judiciary in the United States,
an equal and coordinate branch of the government. Nearly
all the courts were created by act of Parhament or by act of
the King in Council, and their continued existence is dependent
upon Parliament. No court in England could rule that any
act of Parliament is illegal. There are a few acts of Parliament
providing for the establishment of the high courts and the
regulation of their procedure, and a few acts limiting the power
of the Crown. These may be called a part of the Constitution,
but most of the rules that regulate the high powers of govern-
ment in their relations to one another have been made by custom
without any formal enactment. The Constitution is largely
unwritten.
Common Law as an Analogy. — How such an unwritten
Constitution could be evolved and used may be made more
comi)rchensiblu by reference to a similar development in English
law. The Common Law which prevails in England and Amer-
ica to-day has grown out of the rulings of the courts. The
judges have given legal force to the common sense of justice
among the people. Rules of conduct that were ai)i)rovt'd by
the courts and enforced in the King's name became law.
As society was ever changing and new rights arose, the law
was adapted to meet the new conditions, or ' ihc king was called
upon to render justice despite the rules of (oininoii law, or Par-
liament was called upon to enact new laws in aiiH'ndmenl to or
' iJisfussion of the courts of ff|uity is omilttd from this i)riif (lcs( ription, intro-
duced here merely for analogy-
THE NATURE OF THE ENGLISH CONSTITUTION 407
modification of or repeal of the common law. Thus two sorts
of laws grew up in England, viz., those that originated in the
rulings of the courts and the statute laws. These two kinds of
law are alike in that their authority comes ultimately from the
same source, the King in Parliament. In formulating Common
Law the judges have acted under the authority of the sovereign.
The Constitution is analogous to Common Law in that it has
grown out of mere habit and custom and has undergone con-
stant change to meet new conditions.
There is, however, a striking contrast between the common
law and the rules of conduct regulating the relations one to
another of the high offices of state. Common Law is law be-
cause its rules are enforced by the courts. The fact of enforce-
ment makes it law. The customary rules observed by the
monarch in his relation to the two houses of Parliament and the
rules observed by them in their relations to each other and to
the Crown cannot be enforced by the Judiciary ; the Judiciary
is itself subject to the sovereign will of Parhament. Any fine
of action agreed upon by the three branches of Parliament is
legal, not because it can be enforced by the courts, but because
it proceeds from and is an expression of the will of the sovereign.
The Rise of Democracy. — The relations of the three branches
of Parliament to one another have been subject to constant
change and readjustment. The Crown has at times dominated
the two Houses. At one time they, acting without the monarch,
declared the throne vacant and proceeded to fill it by electing
an alien prince. The House of Lords has clearly overshadowed
the House of Commons during certain periods of English history.
The general tendency, however, has been to transfer power from
the Crown to the two Houses, from the Upper House to the
Lower House of Parliament, and, finally, from the Lower
House to a newly created voting constituency. This revolution
has been produced by a gradual process ; by calling into e.xist-
ence agencies of government which the laws of England do
not recognize and by transferring to these new agencies the
high powers of government. Consequently it has been possible
to retain the old institutions, the ancient legal forms and phrases
in all lines of governmental procedure, the legal forms which
apparently center all power in the Crown, and at the same time
to maintain an actual ' government which centers supreme
4o8 COMPARATIVE FREE GOVERNIVIENT
power in a voting constituency. The real Constitution which is
now in force in England is not only not written ; it is not legally
recognized as existing. Nowhere do the laws or legal forms
recognize political parties, yet England is governed by two
competing party organizations appealing for support to the
voting constituency. The laws do not recognize the Cabinet,
yet in each of the two ruling parties there is a group of twenty
or more statesmen ready to take ofSce and govern the British
Empire whenever the voting constituencies give them the
majority in the House of Commons. One of the groups is
always in ofhce and is known as the Cabinet, or the King's
Government ; the chief leaders of the other group face the
Government in the House of Commons and are known as the
leaders of the Opposition or the " Shadow Cabinet." These
party leaders with the support of the House of Commons exer-
cise nearly all the high powers of state formerly exercised by
the King in Council or by the King in Parliament. But the
Cabinet, while ruling in the name of the king, tends actually
to express the authority of the enfranchised Democracy.
Meanings of the Term "Constitution." — The term "English
Constitution " has been used with a variety of meanings. It
denotes, for instance, the actual government of a king and a
representative assembly which has endured for more than a
thousand years. England stands as the most conspicuous
example of a constitutional monarchy. It has always been
constituti(jnal ; no king has ruled without a council which
conditioned his action. It is natural, therefore, that the
Constitution should become an object of veneration and worship,
a sentimental bond of union for the lOnglish citizenship, a word
to conjure with in political controversy. Burke calls upon his
fellow-citizens to understand the Constitution according to
their measure; and lo \(iuiate when they are not able to
comi)rehend.' As thus used the term ai)[)eals to the sentiment
of patriotism ; it summarizes all that has made I'-ngland great.
To analyze and define such a Constilnlioii would destroy its
usefulness. As Bagehot said of asimilaraltitudeloward royalty,
" If you begin to i)oke about it you cannot reverence it." ^
Not until the (real ion of other national constitutions which
' Burke, "Works, " HI, i-. 114. Ouotcd !)>• Dicey, "The Law of the Constitu-
tion," 1). I. ' Hagehot, "The Knglish Constitution," p. 127.
THE NATURE OF THE ENGLISH CONSTITUTION 409
forced comparison did the term denote in England anything
more definite than that form of government which has given to
England a favored position in European history.
The comparison of the Constitution of England with that of
the United States has led to a real analysis and a more definite
understanding of the former. Following the American analogy,
we may say that a part of the Constitution is written. Magna
Charta, the Petition of Right, the Habeas Corpus Act, and the
Bill of Rights are laws to guard the liberties of the citizens,
such as appear in the fundamental laws of American States and
also in the federal Constitution. In England these Acts have
not usually been considered a part of the Constitution. They
stand simply as landmarks in the long series of conflicts between
kings and the people's representatives. The Constitution as
generally understood cannot be reduced to writing and enacted
as positive law. Its great merit consists in the fact that it is
not rigid ; that it is not definite and explicit ; that it admits of an
infinite variety of deHcate adaptations to changing conditions.
Analysis also reveals the fact that the English Constitution is
constantly the subject of controversy. The Crown and each of
the two Houses are wont to appeal to ancient and time-honored
custom as warrant for their authority. There has always been
controversy as to the limits of their powers. Each of the
parties to the dispute has been wont to assume that there is an
ancient and unchanging Constitution which is essential to the
well-being of the state, and that the line of action insisted upon
by their opponents is a violation of that authority. As soon,
however, as a particular controversy is settled by a new law or
an agreed line of conduct it ceases to be of any constitutional
interest. In the terms of contentious politics in England, the
two ruling parties have for centuries been engaged in nothing
else than violating and destroying the Constitution. Yet all
parties agree that during all this time the Constitution has been
enriched and amplified and better adapted to meet the needs
of the people.
In a more restricted and specialized sense the English Con-
stitution is the guaranty for that part of the governmental
system that exists to-day in apparent contradiction to the
legally recognized government. The Cabinet and the political
parties are constitutional agents of government, but they are
4IO COMPARATIVE FREE GOVERNMENT
not legal agents. Every official act of the King, of Parliament,
of the House of Lords, the House of Commons, or the Privy
Council, is legal. These authorities are all legally recognized,
and what they do has the force of law. No act of the Cabinet
or of the party organizations is legal. When the Cabinet wishes
to give legal effect to a policy it must do it through the Privy
Council, through the administrative departments, or through
the Crown and the two Houses of Parliament. The Cabinet
looks to the Constitution of England as the warrant for its
authority. In this new sense of the term, the Constitution
becomes a sort of higher law since it requires the setting aside
of some of the rules of the earUer Constitution. As long as the
King in Parliament was recognized as exercising sovereign
power there could be no contradiction between the Constitution
and legal form. The contradiction has arisen from recognizing
the Democracy as the political sovereign while permitting
ancient forms and institutions to remain.
Yet the new democratic Constitution is firmly anchored to
the past. Its supporters are not a whit behind others in laying
claim to all that is useful for them in past history. The repre-
sentative feature was always present in the Enghsh government.
Many believe that the popular clement was much more efficient
in the earUer day than in the middle period under alien kings.
It was always in order for King and Council to hearken to the
appeals, the petitions, and the complaints of their subjects.
It involves no real break in the continuity of the monarchy to
increase its deference to the manifest wishes of its subjects, to
consent that government be influenced by the advice of those
in close touch with the people. The present advisers of the
King, that is, the Cabinet, are chosen in a sense l)y the people
and act with their authority. Since whatever the king, with
the Lords and the Commons, does is legal, they may legally
consent to be governed I)y llie voting constituency. No break
with the past has come from making the House of Commons
the dominant factor in the I'.ngHsIi government. That house
has become the leader when the King and the Lords have yielded
their power to it. For this there is legal sanction. King, Lords,
and Commons may also, without a break with the past, recognize
that the voting constituency possesses poHtical sovereignty and
may execute their sovereign will. But lliis involves a transfer
THE NATURE OF THE ENGLISH CONSTITUTION 41 1
of sovereign power.' It is a revolution. It sets up a new
political sovereignty while permitting a legal sovereignty to
remain in other hands. Under the new Constitution the King,
Lords, and Commons, although remaining nominally supreme
in government, become actually subject to a new authority.
So long as this condition remains the new Constitution must be
accounted as extra-legal or super-legal, a higher law supplanting
a portion of the formal law.
REFERENCES
(See References to Chap. XXX.)
Anson. Laiv and Custom of the Constitution, Vol. I, Chaps. I to III.
Bryce. The American Commonwealth, Fifth Edition, Chaps. Ill, IV, and
XXXIII.
Courtney. The Working of the Constitution of the United Kingdom, 1901,
Chap. I.
Hearn. The Government of England, 1886, Chap. I.
Macy. The English Constitution, 1897, Chaps. I to III.
Medley. English Constitutional History, Second Edition, Introduction and
Chap. VI.
CHAPTER XXXII
Sources of the English Constitution found in Local
Government
Counties, townships, hundreds, parishes, towns, and cities,
transplanted from Europe to North America in the seventeenth
century, became the foundation for a great federated repubUc.
The same institutions are giving to England a unified democracy.
The constitutions of the two countries have a common origin
in the devotion of the people to their local liberties. In the
United States devotion to local freedom resulted in federation ;
while in England through the party system power became
centralized in the Cabinet and the House of Commons. Yet
in England as in America the Constitution is accounted for
by tracing the relation of the high offices of state to counties,
parishes, boroughs, and cities. These are older than the king-
ship, older than Parliament and the high courts. The original
English county, or shire, is a survival of a petty kingdom, and
the United Kingdom was in the beginning an enlarged county.^
The county is the one institution which goes farthest in explain-
ing the relation of King, Parliament, and courts of law to the
people. To account for the formal legal Constitution which
makes the King in Parliament sovereign, the Crown would be
given the central place in history ; but to account for the
democratic Constitution requires attention to the development
of the counties and their local subrlivisions.
History. — The history of local government may, for our
present purpose, be considered in five periods. First, the Form-
ative Period extending from the Saxon Conquest in the fifth
century to the Xorman Conquest in 1066. In these centuries
county and hundreds courts became popular representative
assemblies. Second, the Period of Royal Control over local
government, extending to the Model Parliament of 1295.
' Stubbs, "The Constitutional History of England, " Vol. 1, pp. loy-iiS.
412
SOURCES OF THE ENGLISH CONSTITUTION 413
Norman and Plantagenet Kings sent their representatives to
county courts and only gradually substituted for this system
the calling of county, borough, and city representatives to at-
tend Parliament. Third, the Period of Factional Wars extend-
ing to the establishment of the Tudor Monarchy in 1485.
While the nobles and the kings fought for control of the central
government, order was maintained in the country by the squir-
archy of the counties and the merchants of the towns; local
institutions survived under royal neglect. The Fourth Period,
from 1485 to 1832, covers the centuries during which Parhament
became more and more the recognized bulwark -of the people
and local organs of government were left unchanged. Fijth,
from 1832, with the repeatedly enlarged franchise, attention
has again been drawn to local institutions, and new local areas
have been created by the central government to meet new needs.^
Formative Period. — The Saxon invaders of Britain brought
with them some sort of tribal organization under chieftains and
wise men. Out of their Httle known primary institutions they
gradually evolved numerous petty kingdoms which, during the
eighth and ninth centuries, became absorbed by that of the
.West Saxons. But the smaller kingdoms instead of being
destroyed were preserved as convenient local units. The
smallest survived as shires, and he who had been king became
Ealderman or earl, the presiding officer in the shire-council or
county court. These counties, therefore, are simply survivals
of kingdoms in which the King in Council has become the earl.
Larger kingdoms were subdivided into two or more counties,
but the existing model of organization was naturally followed.
The whole kingdom was thus divided into shires, or counties,
each of which had its county court. The shire was subdivided
into hundreds, boroughs, or cities. The hundreds were again
divided into townships, or parishes. Boroughs and cities
existed as specialized local governments for dense populations.
The hundreds court received suitors and representatives from
townships and parishes within its area. The county court was
a popular assembly attended by large numbers of suitors and
representatives from hundreds, boroughs, and cities.- In the
1 Lowell. "The Government of England," Chap. XXXVIII; Ogg, "The
Governments of Europe," p. 176 cl seq.
« Green, "Historj- of the English People," Vol. I, p. 353.
414 COMPAPL\TIVE FREE GOVERNMENT
beginning, also, the King in Council represented what was
actually an overgrown and amplified shire court for the entire
country. The county, or shire, both in its origin and through-
out most of its history, has been the chief coordinating agency
between the local and the central government.
The foundations for democratic government had been laid
before the Normans came to England. x\n orderly system of
local government had been evolved. The people had become
thoroughly grounded in the belief that the chief duty of the
King and his advisers was the protection of the people in the
enjoyment of their local liberties. The government was their
friend. Law and liberty had become identified. King Alfred
and other Saxon rulers personated liberty. in their efTorts to
defend the people against ahen conquerors. They did not
succeed in shutting out the conquerors, but, far better than that,
they did succeed in forming a system of government strong
enough to withstand foreign encroachment and ultimately to
compel all rulers to o])ey English law.'
Royal Control. — WiUiam the Conqueror introduced many
important changes into the organization of the county court,
but he found in the institution itself an effective means of
control over the people. The king's sherift" as his special repre-
sentative became the presiding officer in the county court and
linked the shire more closely to the throne. The introduction
of feudalism tended to restrict ancient English liberty and
produced changes in the townships and hundreds. Many free-
men in the townships became slaves or serfs. The area itself
often became a manor, and the manorial courts of the feudal
lords absorbed a considerable part of the business formerly
transacted in the hunchx-d court.- But the Norman and Plan-
tagenet kings maintained control over the county courts, and
through them protected the English from encroachments on the
part of the Norman barons. To this end they transferred
much of the business which had been transacted in the jwpular
hundred court to the county court. Thus they exalted the
shire as the one rehable means of limiting the jjower of the feudal
chiefs. The result was that, in the course of centuries, all the
functions of the hunched court disappeared.'"'
' Green, "History of Ihc liiiKlish People," Vol. I, p. 04.
» Stubbs, "The Constitutional History of EnRlanrl," Vol. I, p. 273.
•Lowell, "The Government of England," Vol. II, p. 130.
SOURCES OF THE ENGLISH CONSTITUTION 415
Norman and Plantagenet kings were probably not greatly
interested in the preservation of the ancient liberties of the
Enghsh people, yet they saw in the people's devotion to their
time-honored customs a means of upholding royal power against
the attacks of their armed feudal chiefs. The growth of feudal
power was arrested by the king's sheriffs and the king's justices
in county courts. Cases under dispute were decided in favor
of the English and the decrees of the monarch were enforced
with a high hand.
On the death of William I (1087) the people supported the
younger son, William, against Duke Robert of Normandy, who
relied upon the barons. And again, when William II died, the
EngUsh, for the better protection of their local liberties, rallied
to the third son, who became Henry I (1100-1135). Henry I
strove in many ways to keep the support of the Enghsh people.
His general charter of liberties was made the basis, a hundred
years later, of Magna Charta. Boroughs and cities had been
strongholds of opposition to the new Norman nobility. Henry
increased their independence by giving numerous charters
that insured the perpetuation of English liberties. He also
punished many Norman nobles and with their confiscated
lands created a new English nobihty. Through a small council
composed of the new English nobles, the King maintained very
close relations with the county courts. He sent members of
this council to visit each county and there to administer justice
in the King's name.^
Henry II (1154-1189), the first of the Plantagenets, con-
tinued and developed the policy of Henry I. Through the
members of his council, through sherilTs, through police and
military officers, whom he appointed, he kept in touch with
his supporters in the counties. The county court, in the mean-
time, had lost much of its earlier popular character, but Henry,
through the organization of the Jury system, maintained a part
of its representative connection with the hundreds and boroughs.
Effective control over the judiciary, over the police and the
militia, and over a wider range of financial resources, was
giving to the crown the means for completely destroying the
independent power of the nobility. Under conditions then
existing, kings would have tended to become absolute and
1 Stubbs, "The Constitutional ^listory of England," Vol. I, p. 527.
4l6 CO]MPAIL\TIVE FREE GOVERNMENT
tyrannical and themselves the destroyers instead of the pre-
servers of ancient freedom had they not been prevented by their
powerful nobles.
Origin of the Charter. — The feudal lords were themselves
learning important lessons from the policy of the king. It
was possible for them also to curry favor with the people by
assisting them to preserve their local privileges against royal
encroachment. The outrageous tyranny of King John (1199-
12 16) gave to the barons their great opportunity. It should
be remembered that at the accession of King John there had
been a full hundred years since Henry I created a distinctly
English nobility and drilled them to habits of government
according to ancient English custom. Many barons of Norman
families also had become English in knowledge and sympathy.
When, therefore, John through evil practices had turned all
classes of his subjects against him, the barons were prepared to
take an active part in the formulation of Magna Charta and
in compelling John to sign it.
The Great Charter of Liberties was several years in prepa-
ration. The bishops and the barons were in possession of Henry's
charter of iioo. This charter was issued at a time when men
still Uved who were personally acquainted with the government
under the last Sa.xon monarch. Magna Charta is a sort of
written constitution for the restoration of former rights and
liberties and for the removal of all present grievances. Many
conferences were held for its preparation. Representatives from
counties, cities, and boroughs consulted with the nobility and
clergy. Thus in the process of its construction it was prophetic
of liie future method of regaining liberty, while in its contents
it was a faithful catalogue of existing ideals of free govern-
ment.
John had no intention of submitting, hut he died before his
plans for resistance were completed. Henry III (1216-1272)
j)romised to observe the charter, but he fell under the influence
of the foreign party and drifted into a war with the supporters
of the charier. During this conllicl both parties attemi)ted to
strengthen their inlluence with the i)eo[)le by calling rei)resenta-
tives from counties and boroughs to take council with them. In
1265, when the King was a ])risoner, Earl Simon, the leader of the
barons, called a representative assembly similar in character to
SOURCES OF THE ENGLISH CONSTITUTION 417
the later Model Parliament of Edward I in 1295. In this way
a new method of approach is established between the king's
government and the people and a new chapter is opened in the
history of local government.
Factional Wars. — Before counties and boroughs were repre-
sented in the central government, the King, through his sheriffs
and through members of his council, visited the counties and
administered justice and secured in county court a vote of
supplies. A close and intimate relation was thus maintained
between the central and the local governments. But, when the
movement is reversed and boroughs and counties go to the King,
that intimate relation is at an end. No longer is the stress of
conflict for the control of counties and cities, but rather for the
control of Parhament. Local government is neglected.
County courts themselves were in process of reorganization.
The king's justices, who formerly presided over the county
court, ^ had become in a sense separated from the older institu-
tion. They held courts of their own and the counties became
simply geographical areas defining their jurisdictions. The
older court, which in the earlier time was composed of numerous
representatives from hundreds, cities, and boroughs, gradually
fell into the hands of local magistrates, justices of the peace,
appointed by the central government. These, with the grand
and petit jurors, were in time united into a Court of Quarter
Sessions. As thus constituted the court lost its popular char-
acter. The magistrates were appointed for life and the eldest
son usually succeeded the father. It was a government by a
local aristocracy. The Court of Quarter Sessions attended to
a wide range of business, judicial, legislative, and administrative.
It was in fact a comprehensive local government, for all purposes.
In boroughs and cities also, government, for the most part,
drifted into the hands of a few of the wealthier class. In both
borough and county the franchise was much restricted ; yet
the wealthy middle-class folk, with little help from king or
parliament, for centuries maintained an orderly local govern-
ment. Those who had the franchise made their peace with
the people, preserving order, administering justice, and ful-
filling local needs.
' After Henr>' II (1154-1189) members of the King's court displaced tlie sherifls
as presiding officers in the county courts.
2E
41 8 COMPARATIVE FREE GOVERNMENT
Anarchy and confusion ruled in the central government.
Much of the time there was a disputed succession to the throne
and actual or threatened civil war. Yet the squirarchy in the
counties maintained the ancient traditions of law and order
for the masses of the people. In speaking of the Wars of the
Roses at the close of this period, J. R. Green says : " The ruin
and the bloodshed were limited in fact to the great lords and
their feudal retainers. Once or twice, as at Townton, the towns
threw themselves into the struggle on the Yorkist side, but
for the most part the trading and the industrial classes stood
wholly apart from and unaffected by it. Commerce went on
unchecked. The general tranquillity of the country at large,
while feudaUsm was dashing itself to pieces in battle after
battle, was shown by the remarkable fact that justice remained
wholly undisturbed. The law courts sat quietly at Westmin-
ster ; the judges rode as of old in circuit." ^
Political Interest Shifts from Local to Central Government.
— No important changes are made in the forms of government
in county and city during the fourth period under discussion,
1485 to 1832 ; but there are significant changes in the relation
of the local organizations to the central government. Hitherto
the great service of county and city had been to preserve order
while feudal chiefs were at war. When Tudor monarchs com-
pletely subdued the unruly classes, this function was at an end.
The Tudors were careful not to offend greatly the orderly classes
in town and county though they maintained a high degree of
royal power. The Stuarts who succeeded them did offend the
people represented in the House of Commons, and after a cen-
tury of conflict they were driven from the throne. This is
not the place to describe the conflict between the Stuart rulers
and the House of Commons, but rather to note some of its
effects upon the local organization of the people.
Origin of Parties. — Religion was an important factor in the
conflict. First the Englisli people were divifled into Catholics
and Protestants and later into Dissenters, or Nonconformists,
anrl supporters of the Established Church. These differences
in Ijelief had the effect of greatly extending the scope of local
religious organization. Dissenters maintaincfl separate religious
' r.rccn, "Short History of the KtiKlish People," p. 301. Cf. "IIistor>' of the
English reople," Vol. II, p. 18.
SOURCES OF THE ENGLISH CONSTITUTION 419
bodies, and Church people gave added attention to their local
parish organizations. Few people, as noted above, had any
direct share in county and town government. Many partici-
pated in church organization and practically all were intensely
interested.
Moreover, the religious groups coincided in large measure
with the ancient divisions in the membership of the House of
Commons. The House was composed of representatives of
boroughs and cities and representatives from counties ; that is,
of burghers and country gentlemen. Dissenting bodies were
mainly formed in towns and cities, while the Church was largely
identified with the Squirarchy in the counties. Religious con-
troversy thus gave added emphasis to this ancient division.
The same cleavage among the people is seen in the organization
of political parties, which appear at the end of the Stuart
century. The Tory party has always found its chief support in
the rural classes and the clergy, while the opposing party has
won the adherence of Nonconformists and industrial classes in
towns. It is true that throughout this period there were few
voters and local party organization was very meager. Yet, when-
ever there was a contested election, agents for the rival candi-
dates appeared and lined up the supporters of their parties. As
will appear in a later chapter, the mob as well as the legal
voters took an active part in contested elections. The masses
sympathized with and gave moral support to one or the other
of the rival parties.
All of these disturbing contests ; the prolonged conflict with
Stuart monarchs, the division of the people into rival church or-
ganizations, the advent of political parties with their appeal
for local favor, tended to concentrate attention on the House
of Commons as the one authoritative representative institution.
The English people apparently lost all sense of their dependence
for their liberties upon their ancient local institutions. When
the time came for extending the franchise, the primary aim was
not the recovery of local freedom but a more complete popular
control of the central government.
In striking contrast with the loss by the English people of
a sense of dependence on local institutions is the experience
of the colonists in North America. At the beginning of the
conflict with the Stuart monarchy, EngUsh counties, towns.
420 COMPARATIVE FREE GOVERKMENT
and parishes were organized in the New World. So great has
been the attachment of the people to these institutions and so
profound has been the sense of dependence upon them for the
maintenance of hberty that it has been difficult to secure an
efficient central government. Americans escaped the central-
izing tendencies which in their ancestral home finally localized
power in the hands of a party Cabinet and a House of Commons.
Democratic Municipalities. — The period since the enfran-
chisement of 1832 will be more adequately treated in future
chapters on local government and on local party organization.
By the acts of 1834 and 1835, provision is made for reorganizing
city governments with the use of an enlarged voting constitu-
ency and also for relieving the parishes and the Court of Quarter
Sessions from the care of the poor and committing that business
to a popularly elected board. With this modification the county
government remained without further change until the Act of
1888, creating popularly elected county councils. For more
than five hundred years local magistrates holding office by life-
tenure had governed the counties. They governed by appoint-
ment, yet with acquiescence and common consent. At no
time was there a sustained general demand for a surrender of
their power. The change came by a voluntary yielding of
power to the new democracy. The agricultural laborers had
just been enfranchised and the Tory party, the party of the
squirarchy, handed over to them the privilege of electing their
local rulers.
REFERENCES
Freeman. History of the Norman Conquest, Vol. 2, Chap. III.
Creen. History of the Iinf,Hsh People, Vol. I, Hook II, Chap. III.
Kemble. Saxons in En^^land, Vol. II, Chaps. I to \'I.
Lowell. 7 he Government of Enfiland, 1908, Vol. II, Ciiap. XXXV'III.
Ogg. The Governments of Europe, IQ14, Chap. VIII.
Stubbs. Constitutional History of England, Vol. I, Chai)s. III-VI, XII.
CHAPTER XXXIII
The Rise of the Cabinet
In describing the growth of the kingship in a former chapter,
httle notice was taken of the immediate advisers of the monarch.
The Cabinet was mentioned as nominally fulfilling the advisory-
function to-day, while actually performing a service in apparent
contradiction to its nominal position. Like every vital part
of the English Constitution, the Cabinet did not originate at
any one time or place ; it simply grew out of English history.
The Crown always commanded the services of a body of advisers
and councilors. The Witenagamote, or great council, met at
intervals and was together for a brief period. The smaller
council was always with the monarch giving advice and admin-
istering the laws. There was always a tendency for the smaller
body to acquire distinct institutional recognition. The curia
regis ^ of Henry II for a time filled the place of the smaller
council. When the members of the curia regis became occupied
in the holding of the Common Law courts, other ofiicers took
their place in the King's Continual Council. As a board of
regents, the smaller council actually governed England for a
dozen years during the minority of Henry HI (1216-1272).
These were the men who had formulated Magna Charta and
they ruled in harmony with its provisions. When Henry as-
sumed control, he discarded the former councilors and selected
as advisers men of the foreign party who were opposed to the
provisions of the charter.
There was never any clear line of demarkation between the
powers, functions, and duties of the two councils. The King in
Council exercised all powers, legislative, executive, and judicial,
1 Curia regis was a name given to a body of high officers of state associated with
the King in the administration of the laws. For its relation to the Exchequer, or
financial administration, and to the larger common Council see Stubbs, "The Con-
stitutional History of England," Vol. I, pp. 376, 387-390 ; also Anson, " The Law
and Custom of the Constitution," Vol. II, pp. 10-13, 87.
421
42 2 COMPARATIVE FREE GOVERNMENT
whether the council was large or small. Magna Charta specified
very expUcitly that certain taxes should be levied in full coun-
cil. There was always a tradition that acts of the full council,
or Parliament, carried with them greater authority than the
acts of the minor council; yet in practice this rule of action
has never been applied in such a way as to deprive the minor
council of a large measure of power independent of, and coordi-
nate with, the acts of Parhament. An order in council to-day
carries with it equal authority with acts of Parhament. Orders
in council led the United States to declare war on England in
1812. This is in apparent contradiction to the modern theory
of the complete sovereignty of Parliament. Yet, as lawyers
say, whatever Parliament permits, it sanctions.
Since the days of Magna Charta there have existed the two
rival methods of giving expression to the sovereign will. The
full council, or Parhament, has always enjoyed the greater weight
and authority, while the smaller council has had the advantage
of being in actual possession of the powers of government.
The Relation of the Crown to its Ministers. — Before giving
further details in the conihcts l:)ctwecn these rival institutions
which have resulted in the modern Cabinet, it is well to define
the English Crown and the meaning of the phrase, " the King
can do no wrong." As noted above, the English monarchy has
always been a constitutional state. No English king could
ever dream of saying, " I am the state." The kingship always
included, as a part of itself, a body of Ministers who were them-
selves members of the national representative assembly. The
smaller council was always included in the full council. The
sovereignty was thus directly or indirectly linked to the national
assembly and the Crown is a composite of two elements, the
person and his ministers, or advisers. The person of the mon-
arch is sacred. He is held inviolate. He is the mystical foun-
tain of justice, the source of law. " The King can do no wrong."
If the King's government goes wrong, the blame rests with the
King's ministers. It early became an established principle
of the Constitution that the Crown acts only upon advice of
ministers and that for its acts the ministers are responsible.
The King cannot be punished ; ministers may be punished.
Another phrase much in use in later political controversy
throws light u[)()n the earlier conflicts. " The prerogatives of
THE RISE OF THE CABINET 423
the Crown " denotes all the powers which may be exercised by
the King in Council without consulting the Houses of Parlia-
ment. The prerogatives of the Crown became pretty clearly
defined and understood during and after the revolutions of the
seventeenth century. But before that time the monarch
had two distinct agencies, Parliament and the Privy Council,
through which he could exercise his powers of government, and
there was no agreement as to their respective Hmitations.^
King John was forced to appoint twenty-five barons whose
duty it was to compel the King to observe the charter.^ This is
a striking exemplification of the difficulty of harmonizing
government by a representative assembly with government by
a King in Council. The barons forced upon Henry III, 1258,
the adoption of a new mode of government, the Provisions of
Oxford, whereby administration should be placed in a committee
of their own number. This is another futile attempt to har-
monize the King in Parhament with the King in Council.
Again, twelve " Ordainers " were forced upon Edward II to
act as his council of state. The king, through the agency of
Parhament, displaced the ordainers ; but a Uttle later the op-
posing party deposed the monarch. There was continuous
effort on the part of those opposed to the policy of the govern-
ment to exert a controlling influence over the Ministers. The
process of impeachment was instituted during the closing years
of the reign of Edward III (1327-1377). Richard II (1377-
1399) was induced for a few years to accept a council from his
Parhament. When he reverted to a policy of personal rule he
was deposed and the Duke of Lancaster (Henry IV, 1399-1413)
ruled by parliamentary title. During the Wars of the Roses,
which resulted in the exclusion of the Lancastrians from the
throne, the two Houses of Parliament were used as a weapon of
warfare. Alternate factions assembled parliaments to complete
the destruction of their enemies by bills of attainder. Many
noble families were thus wiped out of existence and their estates
confiscated.
Rule by Privy Council. — Early in the Lancastrian period
(1399-1461), the name " Privy Council " came into general
1 Dicey, "The Law of the Constitution," pp. 392-305; Anson, "The Law and
Custom of the Constitution," Vol. II, p. 2, seq.
^Section 61, Magna Charta.
424 COMPARATIVE FREE GOVERNMENT
use in place of the older term, " Continual Council." ^ From
the accession of Henry VII (1485) to the meeting of the Long
Parliament (1640) the prerogatives of the Crown were, except
for brief periods, clearly in the ascendant over the two Houses
of Parliament. England was governed by the King in Council.
The Privy Council resembled in many respects the modern
Cabinet. The number of members was usually about the same,
eighteen or twenty. Privy Councilors filled the high offices of
state. ^ They were members of one or the other of the two
Houses. Through his Council the monarch was kept in close
touch with parliament. The King in Council could create
peers ad libitum and could thus control the House of Lords.
He could create and destroy city and borough corporations and
thus maintain voting constituencies loyal to the Crown. Through
the power of patronage and other forms of bribery, the Crown
controlled votes both in the constituencies and in the two
Houses of Parliament. Through these and other agencies
Henry VIII (i 509-1 547) made himself complete master of
Parliament.
This, however, is but the indirect and weaker side of royal
prerogative. The King in Council could exercise practically
all the powers claimed by the two Houses. There was, indeed, a
traditional restraint in the matter of direct taxation, but the
prerogatives of the Crown furnished various means of supplying
the royal treasury. For eleven years preceding the Long Parlia-
ment, Charles I (1625-1649) ruled without Parliament. Under
the name of " Ship Money " he levied and collected a general
tax and for this policy secured the approval of a majority in his
high court.
The Judiciary and Royal Prerogative. — It was, however,
through the control of tiic judiciary that royal prerogative
reached its highest development. The King in Council has
been from the beginning the court of last ai:)peal. From this
fact we have the explanation of the coexistence of two supreme
courts to-day. One is the King in the House of Lords, the
original Council, the other is the King in the Privy Council.
The other high courts are the creation of the King in Council.
Willi a few exceptions the courts have been loyal and sub-
' Stubbs, "The Constitutional History of KnKland," Vol. II, p. 260; Vol. TTI,
p. 245. ^ There were occasional exceptions to this rule.
THE RISE OF THE CABINET 425
servient to their creator. Edward I brought his obstreperous
bishops to submission by simply giving notice that he would
withhold the protection of his courts.^ Sir Edward Coke, the
Chief Justice of England, pronounced some of the acts of James I
illegal, and for this temerity was deposed and imprisoned.
Not only did the Crown maintain control over the ordinary
courts through the power of appointment and removal, but, until
the act of the Long Parliament denying the right, the monarch
had a clear field for bringing into existence new and arbitrary
courts with practically unlimited powers. Henry VII, by means
of his Star Chamber, made the higher nobility subservient to
his will. By fines and confiscations and arbitrary exactions he
left a full treasury to his successor. Henry VIII failed to ob-
tain a suitable decision from existing courts in a matter of
divorce and he forthwith created a special court to legahze his
predetermined exchange of wives. By arbitrary courts created
out of hand by the Crown, royal power was made complete over
Ireland and over large sections of England. Even after the
acts of Parliament abolishing the Star Chamber and other ar-
bitrary courts and denying to the Crown the power to set up such
courts ; after the execution of Charles I and after the restoration
of the monarchy with new promises and guaranties for respecting
the rights of Parliament, the judiciary still remained an effective
tool of injustice and royal tyranny. James II (1685-1688)
experienced little difficulty in securing juries and judges in the
ordinary courts to execute his brutal and despotic orders. The
Act of Settlement (1700) by depriving the Crown of the right
to remove judges from office finally laid the foundation for a
judiciary free from royal dictation.
Thus it appears that from the beginning until the Revolution
of 1688, the King with the smaller council of his advisers was
more than a match for the full Council, or Parliament. Only
in revolutionary times could Parhament force its will upon the
Crown. It was Parliament's fatal weakness that the monarch
was conceded the chief place in the administration of law. Until
the conllict with the Stuarts in the seventeenth century, the mon-
arch was also accounted the source of law. Even when the two
Houses had established their position as the final authority in
lawmaking, they could not govern England. Cromwell kept
1 Green, " Short Historj- of the English People," p. 224.
426 COMPAIL\TIVE FREE GOVERNMENT
order for eleven years, but he did it as an " uncrowned king."
He could not live with a parliament. Much less could he sub-
mit his poUcy to the dictation of a parliament. To avert
anarchy or irresponsible despotism, Charles II (i 660-1 685) was
called to the throne. It was, however, still possible for the
monarch to thwart the will of Parliament, to suspend by royal
decree the operation of its acts, to pack a House of Commons
with royal supporters by creating new voting constituencies
in the boroughs. The two Houses could assert a theory, but
they could not govern. Even after they had gone to the limit
of declaring the throne vacant, filling it by an imported ruler
from Holland and enacting a Bill of Rights which specifies a full
list of royal abuses and declares them all illegal, the problem
of government was still unsolved. The Crown was still left
in full possession of many high prerogatives and the formal
Constitution was not essentially changed. Kings had never
been accustomed to pay much attention to legal requirements
forced upon them in times of revolution. Despite the Bill of
Rights and the circumstances of its enactment, government
might have continued along the old Hnes. But there were
accompanying changes in the unwritten Constitution which
mark the beginning of a real revolution. Important among
these changes was one mentioned in a previous paragraph, by
which the Crown lost its control over the judiciary. James II
was the last king to make a tyrannical use of courts and juries.
By common consent this ancient abuse was done away.
King Dependent on Parliament. — Dci:)rived of the aid of
the courts, the Crown became dependent on Parliament for
necessary funds. James and Charles secured money from Louis
XIV of France, but no succeeding monarch had other than
parliamentary sources of supply. The Crown was thus continu-
ously tied to the two Houses. Annual parliaments became a
necessity.' These two changes made it impossible for monarchs
to continue to govern l^y the use of a council acting independ-
ently of and in competition with the two houses of Parliament.
' Since the Revolution of 1688 the policy of voting supplies for the year has been
mriintaincfl, thus creatinR parliamentary control over taxation. Parliament es-
taMishofl continuous auth(jrity over the army by means of the Mutiny Act which
autliorizes the pay of ofTicers and the disciplinary powers of the army for only a
single year, l-lach of these policies necessitates annual Parliaments. See Green,
"History of the English People," Vol. IV, pp. 44, 45.
THE RISE OF THE CABINET 427
The king and his council thus became firmly anchored to the
legislature. By various acts of royal prerogative they might
influence or control the action of the houses, but they could not
ignore them or override them in the old way.
Before the Revolution of 1688 the monarch and his ministers
were usually one in sentiment and purpose, since the king chose
ministers to execute his own policies. The Council, apart from
the monarch, had no policy, no will of its own. The modern
Cabinets, according to legal forms and fictions, are still identified
with the Crown, though they act upon their own sense of re-
sponsibiUty to the pubhc. It is a violation of the Constitution
for the monarch to intervene to thwart their will. The Cabinet
has gained the initiative and has become an active part of the
Crown. The sovereign yields to the advice of the Ministers.
It was a long time after the exclusion of the Stuarts before this
principle was fully recognized.
In its origin the modern Cabinet carried with it no suggestion
of a radical change in the exercise of the powers of the Crown.
It was always true that the monarch had a small number of
advisers upon whom he relied for special guidance. The name
" cabinet " as applied to such a group appears as early as the time
of Charles I. Charles II had a few ministers who became con-
spicuous as his chief ministers. The " Cabal," as these men were
called, is especially noteworthy as a group of five ministers who
for a time held high office and filled the place of king's council.
There were at the time fifty or sixty men who held the rank of
Privy Councilor, too numerous a body for use as confidential
advisers. So long as kings could rule through a council in-
dependently of Parliament they might use a body of considerable
size and thus add weight to their government. But such a body
is impractical when the chief business in hand is the securing of
Parliamentary support. The Privy Council which had been the
chief governing body for more than two hundred years was
falling into disuse. There was an effort to revitalize the Council
by forming out of it a committee of thirty, half of whom should
be members of Parliament ; the other half an executive council
outside of Parliament. Charles gave his assent to the law and
then continued to govern by secret advisers, giving no heed to
the statute. 1
' Green, "History of the English People," Vol. Ill, p. 426.
428 COMPARATIVE FREE GOVERNMENT
In the same way and for similar reasons, William III (1699-
1702) ruled with the use of a small council or cabinet. At
first he selected members from the three parties, Tories, Trim-
mers, and Whigs; but finding that the Whigs were in the
majority in the House of Commons, he chose Whig ministers.
His object was to control Parliament with the least expenditure
of money or official influence. Later, when the Tories had
secured a majority in the Commons, the King chose Tory minis-
ters. During the reign of Queen Anne (1702-17 14) the minis-
terial and party movements were similar. A Tory ministry
was followed by a Whig ministry and that again by a Tory
ministry, all with reference to securing the continuous support
of Parliament. The House of Lords at one time failed to sup-
port the Tory ministry and the Queen secured a majority by
creating twelve new peerages.^
The Beginning of Conflict between Law and Constitution. —
In all this there is little indication of a radical change in the
principles of government. The monarch was apparently still
in control of the powers of the Crown. The Ministers were the
servants of the Crown. They met in the royal presence and
rendered their humble advice. At the death of Queen Anne
nothing had occurred to raise any question of conflict between
the Constitution and the forms of law. It is true that many
acts of Parliament were being overlooked or disregarded ;
but it had always been so. Not yet was there any understand-
ing or rule of the Constitution which would make a legal act
unconstitutional. A provision in the Act of Settlement of 1700
marks the beginning of a distinct separation of law and con-
stitution. The statute was contingent upon the advent of
another foreign ruler from the Continent ujion the death of
Queen .Xnne. In that case it was oriiained that all matters
"properly cognizable in the Privy Council by the laws and
customs of this realm, siuill be transacted there, and all resolu-
tions taken thereu[)<)n shall be signed by such of the Privy
Council as shall arivise and consent to the same." ^ Another
clause forbade oflu e-holders and pensioners of the crown from
holding seats in ihc House of Commons. The object of these
provisions was to put an end to the new custom of substituting
' /\nson, "The L.iw an<l Customs of Ihc Constitution," Vol. I, pp. 192 and 331.
' .Xdams and Stephens, " Select Documents," p. 478.
THE RISE OF THE CABINET 429
a small secret cabinet in place of the Privy Council and also
to the method of controlling the votes in the Commons by means
of oflfices and pensions. But the new custom survived despite
the law.
The Prime Minister. — This, however, of itself does not make
a discrepancy between constitution and law. So long as the
monarch is the recognized head of the Cabinet or smaller council,
the procedure is both legal and constitutional even though in
direct conflict with a statute. The discrepancy arose later
when a Prime Minister displaced the monarch as the head of
the Cabinet, when the Prime Minister and his associates held
meetings apart from the King, when the poHcies to be followed
were agreed upon in secret Cabinet meeting and the Prime
Minister afterwards secured the approval and cooperation of
the monarch. All this took place under the leadership of Robert
Walpole during the reign of George I (17 14-1728) and the first
part of the rule of George II (17 28-1 760). Walpole created
the office of Prime Minister, and by means of that office he for
twenty-one years maintained harmonious relations between
the Crown and Parliament. The Prime Minister and his as-
sociates held continuous control over the House of Commons,
using for this purpose persuasion, the bribery of office, money,
and influence or bribery among the voting constituencies.
There was a loyal and subservient House of Lords. At no time
did Walpole permit his party or faction to be defeated in the
House of Commons. Bills which he found it convenient to
support in the House of Commons in order to gain favor with
the voters, though he was unwilling to enact them into law, he
would arrange to have defeated in the upper House. The head
of the Cabinet had succeeded in gathering into his own hands
the effective powers of the Crown and by means of these con-
trolled the two Houses.
During the twenty-one years of the continuous rule of the
first Prime Minister there is no evidence that the monarchs
were conscious of being deprived of any of their royal preroga-
tives. George I lived and died under the impression, some
would say under the delusion, that he was himself exercising
royal power.
Circumstances and conditions favored this marked change
as to the exercise of kingly authority. The first George was a
43© COMPAR.\TI\E FREE GOVERNINIENT
foreigner who did not understand the EngUsh language and
for this reason absented himseh from Cabinet meetings. Both
George I and George II were dull and easily imposed upon.
The security of their crown was dependent upon the support
of the Whig party. During the whole of the Walpole regime
there was a possibility, and some of the time a probability, of a
restoration of the Stuarts. The situation gave opportunity for the
rise of the new order of government. But opposition to Walpole
finally became serious. Pitt and Chesterfield led an opposing
faction of Whigs in the House of Commons, and at last, in 1742,
the majority for the Ministry was reduced to one vote and
Walpole resigned.
There was at the time no Cabinet, in the modern sense of the
term, with its joint corporate responsibility. Much less was
there a Shadow Cabinet ready to take office. The Prime
Minister had lost his majority and he alone ceased to be
a minister of the Crown. Pitt and Chesterfield had gained a
controlling position in the Commons by criticizing the Govern-
ment. The King naturally accepted their criticism as personal
and refused to accept the obnoxious statesmen as his Ministers.
At the same time the House of Commons refused to support
a ^Ministry unless Pitt and Chesterfield were given office. Finally
the entire body of the chief ministers refused to remain in office
unless Pitt and Chesterfield were added to their number. There
was at the time a formidable rebellion which threatened to
restore the Stuarts to power. The monarch was thus forced
to accept as members of the Cabinet his personal and i)olitical
enemies. After this event there was no doubt of the fact that
a new institution had come into existence which, without
changing the legal, formal relations of King and Council, does
in reality under given conditions reverse those relations. The
new custom, which later becomes recognized as constitutional,
requires that the monarcn shall yield to those who in legal form
are his servants.
Tory Reaction. — When George III (1760-1820) came to
the tliroiu-, the government had been almost continuously in
the hands of Whigs since the revolution of 1688. The Cabinet,
which had taken the place of the Privy Council and had gathered
to itself a large share of royal power, was viewed as a Whig
institution. George TIT had had a Tory training. He ac-
THE RISE OF THE CABINET 43 1
counted it his high mission to regain the lost power of
the Crown. There was no longer any thought of a Stuart res-
toration/ and the king had a free hand to institute new poli-
cies. During the first decade there were frequent ministerial
changes and the King was all the while seeking to break up the
cabinet system and to rule through ministers under his personal
direction. Finally, in 1770, he found in Lord North a man
after his own heart and with Lord North as chief adviser he
ruled for eleven years. There was no Cabinet or Council,
only ministers separately directed and controlled by the king.
The American colonies were driven into rebellion, and England
was involved in war with a large part of continental Europe.
The personal rule of the monarch came to an end with the loss
of the American colonies and the threatened ruin of the coun-
try through disastrous foreign war. George was forced to
appoint a Whig ministry and a little later he was compelled to
accept a detested coalition ministry. Finally the younger
Pitt was induced to form a ministry with the distinct under-
standing that the Cabinet system of government should again
be restored.
Pitt had been a Whig, but through a division and realign-
ment of parties he became known as a Tory leader. Under his
leadership the Tory party became thoroughly identified with
the Cabinet system. The theory of the government was now
clearly defined. The Cabinet was recognized as including the
king's responsible advisers, from whom alone was he to seek
advice. He was at no time to seek to thwart the policies
agreed upon with the Cabinet, but to give effect to all such
measures.
Neither George III nor George IV (1820-1830) ever really
observed the constitutional requirements of the Cabinet system.
They were continuously exerting an influence at variance with
some part of the Cabinet program. In some cases the king re-
fused to carry out a policy previously agreed upon. It became
increasingly evident to leading statesmen of both parties that
with an Upper House subject to the direct control of the Crown
and a Lower House subject to indirect influence and control from
the same source, continuous Cabinet government would be im-
possible. Either the Cabinet or the monarch would control
' May, "(Constitutional History of England," \'ol. 1, pp. 35 ff.
432 COMPARATIVE FREE GOVERNMENT
Parliament by royal prerogative. In the one case the govern-
ment would become an oligarchy, in the other it would be an
irresponsible monarchy. As between the two forms, personal rule
would prevail. A method of escape from irresponsible personal
rule was found in the reform act of 1832. By this act a large
voting constituency was created which was subject to the
control of neither oligarchy nor king. Through a House of
Commons, elected by these voters, royal prerogative, however
exercised, became subject to the will of the nation.'
The Cabinet and the House of Commons. — Enfranchisement
carried with it as a natural consequence the subordination of
both the Crown and the House of Lords to the national will as
expressed in the House of Commons. Only in the Lower House
could the people make known their will. The leaders of the
Upper House perceived this result and resisted with desperation
the act of enfranchisement. Their submission was secured by a
threat emanating from the King to create enough new peers to
pass the bill. Thus, among the three parts of the ancient
government of the King in Parliament the House of Commons is
advanced to the place of final authority. In the meantime, out
of the ancient body of the king's ministers, there has been devel-
oped a separate and distinct institution which is above the
?Iouse of Lords and, in a sense, is a])ove the House of Commons,
since that House has no way of doing anything except as it
yields itself to the guidance of the Cabinet. It is true the
House may drive the Cabinet out of ofBce by refusing to sup-
port its policy. It is likewise true that the Cabinet may dis-
solve the House and appeal to the voters to elect a new one.
The electors mediate between the Commons and the Cabinet.
Members are nominated and elected with a distinct understand-
ing that they will supj)()rt the leader of one of the great parties
in the formation <il ;i Cabinet, in the administration of the
laws, and in the making of new laws. The Cabinet thus be-
comes the direct voice and expression of the democracy and
the members of Parliament are chosen to give effect to the prom-
ises of party leaders.
The Shadow Cabinet. - The final stage in the devi'lopment
of the system is reaclietl in I lie ;i|)|)earance of the institution
known as the King's Opposition or the " Shadow Cabinet."
• WaliKjIc, "History of ICngland," 0 Vols., Vol. Ill, pp. 206-244.
THE RISE OF THE CABINET 433
As noted above, the Whigs ruled almost continuously from 1688
to 1760. From 1760 to 1830 the Tories were in office nearly
all the time. Since 1832 party leaders have changed places in
Parliament, on an average, every sLx years. There are thus
two definite bodies of trained statesmen actively engaged in
determining the policy of the government. One of these
groups holds the chief offices of the executive and is responsible
both for lawmaking and law administration. The other group
is in Parliament, its members acting as expert critics of the
government both as to its administrative and legislative policies.
The system thus constantly conserves the experience of the
leading statesmen of both parties. The Cabinet and the Shadow
Cabinet are constantly engaged in discovering and revealing
to the democracy improved policies in government. There
are thus five instead of three institutions involved in the exer-
cise of sovereign authority in England. The King and the two
Houses are still nominally sovereign, while real sovereignty
has passed to the people through the instrumentality of two
party institutions not recognized by the laws.
To summarize the stages in the evolution of the Cabinet:
I. There was the inner circle of the Privy Council and of the
earlier Continual Council on whom the king relied for advice
in government. The name Cabinet was applied to this group
as early as the reign of Charles I. 2. Charles II began to sub-
stitute the inner circle in place of the Privy Council. 3. Wil-
liam III and Anne identified the Cabinet with party leaders.
4. George I absented himself from Cabinet meetings. 5.
Robert Walpole created the office of Prime Minister which served
as an entering wedge in the transfer of the exercise of royal
prerogative from the King to the Cabinet. 6. The Cabinet
supported by the House of Commons forced George II to give
Cabinet places to Pitt and Chesterfield. 7. After George
III had for twenty-five years tried to discredit and destroy the
Cabinet its authority was restored under the leadership of the
younger Pitt as head of the Tory party, thus committing
both parties to the system. 8. Finally, beginning with the
act of 1832, the nation is becoming enfranchised, the people
are recognized as the source of final authority, there are fre-
quent changes in party rule, and the people express their will
by alternate choice between two competing Cabinets. The
434 COMPAR.\TIVE FREE GOVERNMENT
mechanism is such that the people retain the continuous serv-
ices of both groups, one as actually governing, the other as
pointing out methods of improvement.
REFERENCES
Adams and Stephens. Select Documents of the English Constitutional His-
tory, 1901, Act of Settlement, p. 475.
Anson. Law and Custom of the Constitution, Vol. I, Chap. II, Vol. II,
Chaps. I and III.
Dicey. Law of the Constitution, Edition 1915, Chap. XII.
May. Constitutional History of England, Vol. I, Chaps. I and II, Vol. II,
Chap. VIII.
Medley. English Constitutional History, Second Edition, Revised, Chaps.
II and VI.
Ogg. The Governments of Europe, Chap. II.
Walpole. History of England Since 181 s, Vol. Ill, Chap. XI.
CHAPTER XXXIV
The Relation of the Cabinet to the Executive and to
THE Judiciary
The Cabinet as a whole arose from an adaptation of an an-
cient institution to meet changing needs and consequently a
number of the offices included in it are survivals of ancient
offices. Significant among these posts is that of the Lord
President of the Privy Council, always a member of the Cabinet,
nearly always a peer and, since the functions of the Council
have been absorbed by the Cabinet, an officer left practically
without duties. All Cabinet members are made Privy Coun-
cilors so that the Cabinet becomes the active Council.^ The
Board of Trade and Board of Education originated as commit-
tees of the Privy Council, and the President of each of these
boards is included in the Cabinet. The " Boards " are mere
fiction ; the Presidents are the boards and fill the places of
Ministers of Trade and Education respectively. As stated in
another chapter, a Committee of the Council serves as the
Supreme Court for the Colonies and for the Established Church.
The Lord High Chancellor is a member of this court. He is
also the presiding officer of the House of Lords. The Chan-
cellor was for centuries the most confidential adviser of the
Crown, " the keeper of the king's conscience." The duties of
the Chancellor, both as presiding officer in the Upper House and
as a member of the high courts, are non-partisan in character,
though he is a member of a partisan Cabinet. This office
exemplifies the early union of all powers in the King in Council.
1 The Privy Council numbers more than 200 members, and now consists of all
the members of the Cabinet ; all who have been Cabinet officers; most of the chief
administrative officers in the departments of the government ; and a large number
of eminent persons upon whom the rank of Privy Councilor is conferred as a com-
plimentary distinction. It rarely acts as a whole, but performs its duties — now
mainly executive rather than advisory — through numerous committees. See
Anson's '"Law and Custom of the Constitution," Vol. II, pp. 10O-107, 141-143 ;
Macy, "The Knglish Constitution," p. 86.
435
436 CO:\IPARATIVE FREE GOVERNMENT
A fifth member of the modern Cabinet represents an office,
whose duties have vanished, the Lord Privy Seal. When it
was proposed to abohsh the office, Mr. Gladstone alleged as a
reason for continuing it the desirability of furnishing the Cabinet
an additional councilor who might not have the strength to
administer a department.'
Until the death of Queen Anne in 17 14 the Lord High Treas-
urer had control of finance. Since that date the duties of the
office had been assumed by the Chancellor of the Exchequer.
The ancient title has been dropped and in its place there re-
mains the First Lord of the Treasury, who is also an officer
without duties. The Prime Minister is usually appointed
First Lord of the Treasury - and thus is secured to him time and
energy for other arduous duties. Occasionally, however, the
Prime Minister prefers another office. Lord Salisbury was
Foreign Secretary and Prime Minister.
In addition to the six officers named above, the Cabinet in-
cludes the five Secretaries of State ; viz., those for the Home
Department, for Foreign Affairs, for the Colonies, for War,
and for India. The Navy is represented by the First Lord of
the Admiralty. Ireland is represented either by the Chief
Secretary or by the Lord Lieutenant of Ireland. A number
of other officers, such as the Secretary for Scotland, the
Postmaster General, the Presidents of the Board of Agricul-
ture and of the Local Government Board, the First Commis-
sioner of Works, and the Chancellor of the Duchy of Lancaster,
may be included. Since the year igoo cabinets have num-
berefl twenty members. During the nineteenth century the
numljer \aried from ten to twenty. The enlargement of the
("uld of goxx-riinient has iinok'ed an increase in the size of
the Cahiiift.
Change of Cabinets. Wlien in case of a general elect it)n
it becomes e\ident that the ruling i)arty is defeated, the Prime
Minister resigns office and the King sends for the leader of the
victorious party and requests him to form a government. He
consults with his immediate i)arty associates and they distrib-
ute among themselves the offices to be rejjresented in the
* Okr, "The (lovtTnmcnts of I^uropc," p. (>s, note i.
'Anson, "The Law and Cuslom of Ihu ConstiliiliDii," \'()1. II, p. 174 ; Lowell,
"The Government of Lngiand," VoL I, p. 127.
RELATION OF THE CABINET TO THE EXECUTIVE 437
Cabinet, and a list of the appointments to be made is handed to
the king. The press at once announces the names of the new
Cabinet members and the office held by each. As stated in a
formier chapter, an actual Cabinet and a potential Cabinet are
always on duty in Parliament. These change places when the
acting Cabinet is defeated at an election. In respect to many of
the offices it is understood in advance who wQl fill them, and the
work of the Prime Minister is thus simplified. The questions in
doubt as to how many and what officers shall be included and
who shall be appointed to particular places are decided by the
Prime Minister alone or in consultation with his friends. It is
the aim of the leader to make the party strong in Parliament,
strong with the electors, and as harmonious and efficient as
the conditions will permit. The King has a legal right to select
whom he pleases as his ministers of state ; yet the well-estab-
lished rule of the Constitution requires him to appoint the
leader of the triumphant party to the office of First Lord of
the Treasury, or to whatever office he may prefer, and leave
to him the distribution of all the other positions in the Ministry.
Besides the Lord Chancellor, whose duties are mainly judicial,
and three or four sinecures, the Cabinet is composed of about
sixteen Ministers who are heads of the chief departments of
the executive.
The Duties of the Cabinet. — The amount of executive
business in the British government is enormous. Comparison
with that of the American government helps to make this
clear. The United States is so situated as to be comparatively
exempt from the anxiety of a dangerous encounter with any
foreign power. Military requirements are correspondingly
slight. The situation of England is such that its continued
existence has been felt to be dependent upon the maintenance of
an efficient standing army and a navy superior to that of any
two rival states. As to colonies, America owns islands with
less than ten millions of inhabitants, while England is respon-
sible for the government of more than one seventh of the human
race. In respect to domestic matters, the contrast is equally
striking. The Government at Washington has nothing to do
with local government, except as it concerns the District of
Columbia, which includes the national capital. Local govern-
ment with the enlarged franchise is new in England and the Local
438 COMPARATIVE FREE GOVERNMENT
Government Board in fhe Ministry is a hard-working depart-
ment. It does for cities and counties what is done in America
by the forty-eight separate States. The Enghsh habit of de-
pending upon the central authority for minute, detailed super-
vision of local interests still persists and places heavy burdens
upon the central office. Again, the entire police system of
the country is under the supervision of the Home Secretary.^
A few years ago, that important official gave directions in person
for the arrest of desperadoes in East London. Scandal has
assailed a whole Cabinet and imperiled its very existence on
account of the mistake of a policeman in arresting a respectable
woman — a local event which would hardly make acceptable
copy for an American newspaper.
The separate American States assume the burden of public
education. The federal government does, indeed, cooperate
and assist in a variety of ways ; but the general responsibility
and most of the financial support is borne by the States. In
the English Cabinet the President of the Board of Education
is a very important minister, and the Government interests
itself in educational details in ways unknown in America. The
union of Church and State, carefully repudiated by the founders
of the American Commonwealth, gives rise in England to two
rival systems of schools, l)oth recognized and regulated by law,
and involving very difficult problems to be dealt with Ijy the
Minister of Education.
The onerous burdens of the EngHsli Cabinet are made heavier
by the fact that those who execute the laws are at the same time
responsi})le for their existence. The blame for a law which
works Jjadly cannot, as in America, be shifted to the shoulders
of an independent legislature or, as in some instances, a court.
The Government of the day is held responsible for retaining
any laws which are a source of injustice, as well as for the
formulation (jf new and needed projects of legislalion. l'>xecu-
tive duties are thus comi)licated. The Government inaugurates
a new policy in the face of partisan rivals for office. The
Cabinet incurs all the odium arising from temporary malad-
justments due to change of ])olii \'.
' London police are subject to direct control; otiicr police are sul)jccl to the
supervision of the central K')vernmenl. ■ Lowell, " ('lovernmeiit of ICiiKland," V'ol. f,
p. 106.
RELATION OF THE CABINET TO THE EXECUTIVE 439
The Cabinet has been called a committee of the Privy Coun-
cil, because it was evolved out of and takes the place of the
Council. It has been called a committee of Parliament because
it depends for its continued existence on the support of the
House of Commons. The Cabinet is in fact a self-appointed
national party committee and as a ruling party committee, it
formulates party policies, both legislative and administrative,
and maintains its position by securing party support in ParHa-
ment and among the constituencies.
Ministerial Responsibility. — Each minister is individually
responsible for his own department. If matters go wrong
with the police, the Home Secretary may be criticized ; if
diplomatic dehnquencies are charged, the Foreign Secretary
may be blamed. But the Cabinet as a whole stands or falls
together. Personal defects may lead to a change within a
Cabinet, but this is exceptional. The body as a whole is re-
sponsible. It is compared to a chain which is no stronger than
the weakest link. A vote of censure directed against the war
department would cause a Cabinet crisis. Joint responsibility
promotes a spirit of watchfulness over all departments to avoid
hostile criticism.
Besides the members of the Cabinet, there is in the two
Houses of Parliament a larger number who are members of the
Ministry. Each of the departments has a Parliamentary
Secretary. The war and navy departments each have three
parliamentary members in the Ministry, two of whom are not
in the Cabinet. In the Ministry and not in the Cabinet are
four party Whips, a number of officers of the King's household,
and a few heads of minor departments. The ministry num-
bers more than fifty in all. These all resign their offices with
the Cabinet changes; all are members of the party. Each
minister is bound to vote with his party, to apologize for and
defend the policies adopted, to seek in every legitimate way
to strengthen the party. Ministers not in the Cabinet have no
direct share in determining the policies of the government. They
are not consulted, do not share Cabinet secrets. They are
salaried or paid adherents of the government. If they cannot
yield loyal support to it, their duty is to resign. The parlia-
mentary secretary is directly responsible to the head of the
department. Wlien the Cabinet member is a peer the Secre-
440 COMPARATR'E FREE GOVERNMENT
tary is always in the House of Commons and upon him may
rest the chief burden of defending the policy of the department,
though he speaks for and on behalf of his chief and not as a
Cabinet minister. Some of the departments always and a
number of them usually have a spokesman in each House, but
all officers of the Treasury sit in the Commons.^
The members of the ministry receive salaries ranging from
£1000 to £20,000, but these are practically all of the salaried
partisan positions. The public service outside of Parliament is
permanent and strictly non-partisan. Membership in Parlia-
ment marks the distinction between salaried party supporters
and the officers who serve both parties with equal loyalty.
Without this sharp line of distinction, a democratic Cabinet
would be difficult or impossible. Previous to the popular en-
franchisement Parliament was controlled through pensions and
the bribery of office. With the enfranchisement came the
general recognition of the principle that partisan appoint-
ments should be restricted to the membership of the two
Houses.^
Permanent Under Secretary. — The English executive thus
possesses some of the qualities of a bureaucracy. In each de-
partment next to the Parliamentary Secretary is the Permanent
Under Secretary of the Department. This officer is like a
bureaucratic chief in that he holds his place on account of his
ability as an administrator. He lives with the department, is
familiar with its details, and is acquainted with both the theory
and the practice of administration. Yet the Permanent Secre-
tary is subject to the orders of a parliamentary Minister. Some
of the departments arc involved in heated partisan controversy,
and the secretary is subject, with a change of parties, to orders
from a chief who, as a party leader, is bitterly opposed to a
law just enacted by the defeated party. The Liberals came'
into office in 1905, in large i)art because of intense opposition
to an Educational Act of the Conservative party. Because of
f)bstruction in the U[)f)er House, they were unable to amend the
law and it thus became the duty of the party to administer an
" Ix)wdl, "Thu (WnxTnmcnl of I'.iiKland," Vol. I, p. 78.
* There remains, however, a limited amount of patronage which may be used for
partisan purposes, such as the bestowal o( lesser titles and temporary offices of a
IKTsonal character. Ibid., Vol. I, p. 449.
RELATION OF THE CABINET TO THE EXECUTIVE 441
obnoxious law which the country had condemned. This, how-
ever, was done in such a way as to avoid serious criticism. It
is customary for both parties to administer statutes which as
partisans they have condemned. The skilled under secretary
and the permanent service facihtate uniformity of administra-
tion in the face of frequent changes in the heads of departments.
In some cases it is an administrative policy which becomes an
issue at a general election. Then the victorious party may be
pledged to make specific reforms or a radical change in policy.
In the heat of partisan debate, promises may have been made
which are difficult or impossible of fulfillment. The permanent
secretary then has the dehcate task of saving the service while
giving it the appearance of fulfilling a party pledge made with-
out an appreciation of the difficulties involved. He needs to
be a skillful politician without being a partisan.
Non-partisan Civil Service. — It is a violation of one of the
dehcate rules of the Constitution to refer to or to quote an
officer of the permanent service in parliamentary debate.
Gladstone reproved one of his associates for failure to observe
this rule.^ The parliamentary chiefs are alone responsible.
They alone are to be criticized. It is expected that the per-
manent service will remain absolutely impartial. These offi-
cials are not expected to discuss in public the affairs of their
departments or to give information to others than their supe-
riors to be used in public debate. A clerk in one of the depart-
ments was laboring day and night to furnish information to a
party leader to be used in an important debate. Upon being
asked if his department would be equally alert in gathering
information for the opposition, his reply was, that a request
coming from the leader of the opposition would be treated with
almost the same respect as the one from the party in power, yet
they would be greatly surprised to receive a request for statistics
from such a source to be used in a partisan way. This would
tend to confusion. The opposition understand this and are
willing to wait until they themselves are officially in command.
The leaders on both sides are bound to respect and to protect
the independence and the impartiality of the civil service.
Those in the civil service, on the other hand, are equally loyal
to both parties. They may vote at elections, but they take no
' Lowell, "The Ciovernment of Kiij^lund." Vol. T, p igr.
442 COMPARATIVE FREE GOVERNMENT
other part in politics. It is not good form for them to attend
poHtical meetings. At least they take no active part in a cam-
paign.
The Prime Minister and other Leaders. — There are three
distinct classes in the public service. First is the inner circle
of the ministry, the Cabinet. Second, the non-cabinet Ministers
in Parliament. These are all identified with a ruhng party.
Third, the public oflBcers not in ParUament. These, as officers,
belong to both parties. The Cabinet itself is composed of two
parts, a leader and his followers. The office of Prime Minister
is to be thought of as an institution quite apart from the Cabinet
as a corporate body. The Prime Minister has many duties
which are distinct from those of other members of the body.
The office preceded the Cabinet in the order of development.
Around the chief Minister the Cabinet has been formed. He
is the president of its meetings, the spokesman for Cabinet
policies. He is the party disciplinarian. He gives the final
word in party disputes. He is the chief intermediary between
the Monarch and the Cabinet. Before Parliament and before
the country his word, for the time, carries the force of supreme
authority. The Prime Minister is kept from being a despot
because he has no authority except that which is derived from
a large, intelligent voting body. By e.xcelling others in dis-
cerning and giving expression to the will of the nation he comes
to the place of supreme power, and he gives place to a competitor
when he ceases to excel in leadership. The party chief and the
inner circle of his associates secure and hold their positions by
actually leading the party or some section of it. In this sense
they are self-ajjpointed, yet conditions may arise which cause
doubt as to who shall be the leader. Within the ranks, as al-
ready stated, doubts are solved by the party chief. When the
leader himself vacates his office there may be a question between
two or three associates as to who shall iill the place. Salisbury
succeeded Beaconslield without question as leader of the Con-
servative party, and Balfour succeeded Salisbury; but when
Balfour resigned a successor was not easily found. In such
cases the leader is selected by informal conferences among party
leaders, or there may be a caucus including all the party sup-
|)()rters in the two Houses of Parliament. If at the time of
Cabinet crisis there is doubt as to leadership, the King may act
RELATION OF THE CABINET TO THE EXECUTIVE 443
upon his own judgment in selecting the leader most likely to
harmonize the party.
The organization is normal when one man is the accepted
party chief and is Prime Minister when his party is in office,
and leader of the opposition when it is out of office. The official
party leader is the leader of debate in the House of which he is
a member. In the other House some party member is an offi-
cially recognized leader of debate. There are thus two leaders
in each party. When the chief leader is a peer the leader in
the Commons holds a position of almost equal importance.
The Prime Minister, however, remains the official spokesman
and the disciplinarian of the party. Normally, the official
leaders are the actual leaders of the Cabinet ; yet not infre-
quently other Cabinet officers overshadow the official leaders
in commanding public attention.^ With increased numbers
in the Cabinet there is a tendency to subdivide that body into
smaller groups, four or five of whom form an inner cabinet.^
Rank in the party has no necessary association with any par-
ticular office in the executive. Even the Prime Minister may
select an office other than the traditional one of First Lord of
the Treasury. The Chancellor of the Exchequer must be a
financier of marked ability. The office of Lord High Chancellor
goes to a jurist of eminence. But the fifty or more places in
the Ministry are subject to frequent and indiscriminate changes.
They are filled by ambitious men. Even when the same party
is long continued in office there are frequent shifts in the dis-
tribution of office, while a change of party involves a clean sweep
of the entire Ministry.
Party Rule and Administrative Efficiency. — A standing
criticism against tlie cabinet system is that it places the control
of the executive business in the hands of politicians who are
ignorant of the details of administration in the departments
for which they are responsible.^ The bureaucratic character
of the permanent service described above is in part an answer
to this criticism. A further answer is found in the fact that the
parhamentary side of the executive is likewise, in a sense, perma-
nent. It is true that the tenure is usually brief as related to
* Joseph Chamberlain, in the Tory Cabinet, and Lloyd George, in the Liberal,
furnish illustrations.
2 Lowell, "The Government of England," Vol. L P- 50- ^Ihid., Chap. VTII.
444 COMPARATIVE FREE GOVERNMENT
any one office, yet the holder of the office has cither had long
training in governmental business or possesses a genius for
public affairs. For every place in the Cabinet there are prob-
ably ten men in Parliament who have seriously contemplated
the possibility of attaining Cabinet rank. Membership in
Parliament is a career, a life work. A young man entering
the service naturally expects to come to the front. To remain
in the House of Commons he must satisfy a single constituency
of his continued usefulness, or he must so commend himself to
the leaders of his party that they will secure for him a new con-
stituency in case of need. Each of the parties has numerous
districts which may be relied upon to elect any one whom the
leaders nominate. The fact that there is no residence require-
ment makes it possible to secure unbroken service for the supe-
rior man. He demonstrates his superiority by his ability to
throw light on public affairs. Outside of the fifty who hold
office, there are others who are demanding recognition. Al-
ready they have made themselves familiar with the business of
administration. Their training begins before the " maiden
speech " in Parliament and, subject to the law of survival of
the fittest, it goes forward until a position in the inner circle
is reached. The heads of Departments have either had ex-
perience in subordinate positions in the ministry or have mani-
fested conspicuous ability.
Yet after all that may be said by way of mitigation, the criti-
cism still holds. To parcel out, in a more or less haphazard
way, twenty of the high offices of state does not fulfill the re-
quirements of an ideal scientific administration. It does in-
volve waste and misfits in the association of men with office.
The system, however, is capable of yielding a high degree of
practical efficiency and it insures the executive against serious
and long-continued scandals.
The English and American Systems Compared. — It is in
orrler here to refer briefly to the distinguishing feature between
the TVesideiitial and the Cabinet tyj)es of government. The
American Stales and the Ceneral government of the United
States were organizcfl uj)on the theorx- of a separation of the
three departments. The Legislature, llu- ivxerulive, and the
Judiciary arc made as far as j)ossil)lc independent of one an-
other. I*".a(h is supreme in its own s|)liere. No officer is per-
RELATION OF THE CABINET TO THE JUDICIARY 445
mittcd to serve at the same time in any two of the departments.
In actual fact, complete harmony between theory and practice
has not been secured. The tendency has been for the governors
of States and the President of the United States to become
leaders in legislation as well as executive chiefs. The American
governor or president as a party leader may gain a controlling
influence over the legislature without becoming responsible to
it. The Executive is elected by the people and is responsible
to the people. The Cabinet is in a sense chosen by a popular
election, but it is chosen for the double purpose of making laws
and administering laws. It is directly responsible to the House
of Commons whose vote may at any tirne drive it out of office.
The Americans intended by their constitutions to exalt the
legislature and give it an independent position. Present tend-
encies are in the direction of subordinating the legislature
to an independent executive leader.
The President, hke the Prime Minister, selects his own asso-
ciates in the Cabinet, but in this respect he has a much freer
hand. Occasionally a party leader is so related to the newly
elected President as to command a place in the Cabinet, but this
is exceptional. In general, the President may appoint any one
he pleases. He cannot, however, choose a member of Congress.
The Prime Minister must select members of Parliament and
must fulfill as far as possible the reasonable expectations of
every member of his Cabinet. There are no surprises in the
ordinary make-up of the English Cabinet.
The President's Cabinet is not a cabinet at all in the EngHsh
sense of the term. The relation of cabinet members to the
President almost exactly fulfills the ideal of George III, who set
himself to destroy the English Cabinet. The heads of de-
partments are independent of one another. Each is directly
responsible to the President. There is no joint or corporate
responsibility. American Cabinet authority is personal. The
Chief Executive is alone responsible. He may appoint or re-
move members at will. He may entirely disregard their ad-
vice. He may seek and follow the advice of whomsoever he
pleases. The President is the Executive. If matters go wrong
in the foreign service, blame may attach to the Secretary, but
the responsibility is with the President. Members of his Cabinet
as such have no share in legislation.
446 C0MPAR.\T1VK FREE GOVERNMENT
Contrast also the positions of the judiciary in the two coun-
tries. It was the intention of the Americans to make the
courts not only independent, but far removed from partisan
controversy. Judges in most of the States as well as in the
federal government were at first appointed for life. As the
courts have assumed and exercised the power to nullify acts
of the legislature, they have come into political and partisan
controversy. States have very generally adopted the policy
of nominating and electing judges by the same process as other
poUtical officers. In England the courts were an effective tool
of royal tyranny until the revolution of 1688, but coincident
with the development of Cabinet government, the judiciary
became entirely non-partisan. At the same time the Lord
High Chancellor, a member of a partisan Cabinet, presides
over the House of Lords as a supreme court, is a member of
the judicial committee of the Privy Council and of other high
courts, appoints the judges in lower courts, and is active in all
matters of judicial jjrocedure and reform, while the judiciary
remains as completely out of poUtics as does the permanent
service in the administrative departments.
The English Constitution began with all powers, legislative,
executive, and judicial, united under the control of the Crown
and an assembly. In its relation to the monarch and to Parlia-
ment the Cabinet still exemplifies the union, but by common
consent one department, the judiciary, has come to be treated
as independent, leaving legislation and administration fused
together and united under partisan control. The description
of the relation of the Ministry to Parliament will follow an
account of the organization of the two Houses.
kei"i:rences
Anson. Law and Custom of the Constilution, Vol. II, Chiip. IV.
Bagkhot. The Kni^li.sli Conslititthm, Chap. II.
Courtney. Tlic Working of llir Consliliilion of the United Kingdom, Chap.
XII.
Dicey. The Imw of the Constitution, 1S15, ("hap. II.
Lowell. The Government of f-lni^land, Edition 1908, Vol. I, Cluij)?. II-X
and Chaps. XVII and XVIII.
CHAPTER XXXV
The House of Commons
The House of Commons has been the chief coordinating
agency in the British Government. Beginning as a feeble
institution intended to enable the king to increase his revenues,
it gradually gained a share in all acts of legislation. Henry
VIII used the lower House as a means of control over the House
of Lords. The House of Commons was always the one branch
of the government having a direct connection with a voting
constituency. In the name of the people ParHament was
exalted above the Crown. In the name of the people the
House of Lords has been subordinated to the House of
Commons. The right to vote for members of the House
measures the progress towards democracy. By successive acts
of ParHament the elective franchise has been extended to
five sixths of the male population twenty-one years of age,
and further extension is under consideration. From every
point of view the House of Commons holds the place of
primary interest in the present and future government of the
British Empire.
To the student of politics the very center of the British
Empire is the small, oblong room in the Palace of Westminster
known as the House of Commons. It is not an imposing
legislative hall, for when it was rebuilt in 1834 the pro-
portions of the old room were retained so that no induce-
ment should be given to " loud-voiced oratory." Consequently
the benches can accommodate only about half of the present
membership of the House (670), and even with the seats
reserved for members in the side galleries they are not suffi-
cient. From the entrance lobby a broad aisle leads up the
center of the House to the Speaker's chair before which stands
the table for tlie clerks. At the end of this table lies the mace,
— upon the table when the House is sitting, on a bracket below
447
448 COMPARATIVE FREE GOVERNMENT
when in committee. The Chairman of Committees occupies a
seat in front of the Speaker's chair when he presides during
sessions of the Committee of the Whole House or of the Com-
mittee of Ways and Means. On either side rise tiers of green
leather-covered benches, divided halfway down the side of the
hall by a narrow cross aisle, called the gangway. At the lower
end is another aisle beyond which is a shallow tier of cross
benches for members and a few visitors. Under the high
stained-glass windows runs a gallery, reserved on the sides for
members, at the lower end for strangers, and back of the Speaker's
chair for the press. Above the Press Gallery and behind a
heavy grating is the Ladies' Gallery, which is technically out-
side the House.
Composition of the House. — The front bench at the Speaker's
right is occupied by those Members of the Ministry who sit in
the Commons, and is called the Treasury Bench. On the front
Opposition Bench at the Speaker's left sits the " Shadow
Cabinet " composed of the members of the party out of power
who have held or are expecting again to hold ministerial office.
Thus, facing one another across the table sit the two party
leaders with their lieutenants at their sides and their immediate
supporters just behind. Below the gangway sit members less
closely bound to the leaders. Irish Nationalists habitually
occupy seats below the gangway on the left even when their
Liberal allies are in power. Except in this general way no
scat belongs to a particular person, but before " prayers " a
member may reserve his seat for the day's session by marking
it with his card or his hat. At question time and when a very
important debate is in f)rogress the House is well filled, but
most of the lime a comparatively small number of members
is in actual attendance. They arc, however, not far distant,
and the sound of the division bell or the report that a leader is
speaking l)rings them Hocking to the House from the committee
rooms, the library, the refreshment rooms, and other parts of the
building.
Of the 670 members who make up the House of Commons
465 represent Kngland, .^o sit for Wales, 72 for Scotland, and
103 for Ireland. These are elected lo represent counties,
municipal and provincial jjoroughs, and the universities. Most
of the Constituencies now elect only one member ; but twenty-
THE HOUSE OF COMMONS 449
three boroughs, the " City " of London/ and three universities,
— twenty-seven constituencies in all, — elect two members
each.
Constituencies vary greatly in size. The last distribution
of seats, that of 1885, did not pretend to make them equal,
and the subsequent shifting of population has increased the
discrepancies. In 191 2, the largest constituency was the
Romford division of the county of Essex with 55,951 electors;
the smallest, the borough of Kilkenny in Ireland with 1690.
Twenty-five boroughs in Great Britain and four in Ireland,
each have less then five thousand electors. One two-member
constituency and the three universities, returning two members
each, have less than ten thousand electors. Five county con-
stituencies in Great Britain and sixteen in Ireland also have
less than five thousand electors. In general, Ireland is over-
represented, as her population has been decreasing for several
decades, while that of Great Britain is increasing.^
Great confusion in respect to the suffrage has been the
result of the policy, extending over many centuries, of dealing
with the subject by special acts, many of them of local appli-
cation. The qualifications were different for boroughs and
counties, different for the parUamentary franchise, and for local
governments. The great democratic enfranchisement began
with the Reform Act of 1832 and was extended by the Acts of
1 86 7 and 18S5, but the confusion remained. A considerable
number of the adult male citizens are still debarred from the
.privilege of voting. On the Other hand, the abuse of plural
voting persisted, since unrepealed ancient laws gave the fran-
chise to property owners in each district in which they held
property.
The nomination and election of members is more fully de-
scribed in the chapters on political parties. A dissolution of the
House of Commons is followed at once by the election of a new
House. According to the old law several weeks are required
before a newly elected House may be organized. The voting
extends over a period of two or three weeks. This arises from
' The City of London has less than 30,000 inhabitants. It is about a mile square
and contains the chief business iiouses ; it is still governed by the ancient merchant
guilds.
2 Lowell, "The Government of England," Vol. I, pp. 197-201; King and
Raffety, "Our Electoral System," Chap. IV.
2G
450 COMPARATIVE FREE GOVERNMENT
the fact that the Returning Officer in each district " has a
choice of dates for giving notice of the election, a choice, again,
in fixing the date of nomination, and a further choice in fixing
the date for the poll, a minimum and maximum number of
days in each case alone being prescribed." ^ The proposed
act designates a single day for the election of all members.
No change is proposed in the matter of residence requirements
for members of the House ; members are not required, either
by law or custom, to reside in the districts which they represent.
Scotsmen or men of Scottish descent usually represent Scotch
districts, but they are not required to live in Scotland. The
same is true as to Wales and Ireland. There is the greatest
freedom in the selection of representatives from all the con-
stituencies. This fact has a great influence on the character
of the House. It is possible for a statesman of ability to choose
a parliamentary career and remain continuously in the House of
Commons. Each of the parties has a number of districts at
its disposal, which may be reUed upon to elect any candidate
whom the leaders may nominate. The laws provide for an
official nomination by petition after due notice. If only one
candidate is nominated, the nomination itself is an election ; no
poll is ordered. Each of the parties controls a number of such
districts. The system makes it possible for members of cabinet
or ministerial rank to continue in Parliament. Party leaders
usually represent districts which are contested, and their re-
lations to the district are such that even when their party is
defeated they carry their own districts. But if an accident
should occur and the leader be defeated, he is kcj)! in office
by the use of a constituency which the party controls. This
system is essential to tiic maintenance of the English type of
Cabinet Government.
Permanence and continuity in the legislative career lend to
secure a high grade of aliilily in the House of Commons. The
fact that a number o{ seats are to be disjjosed of by mere party
nomination has in the past tended to keep in the House mere
appointees of inlluential families who are sometimes men of
inferior intelligence. Party rivalry tends to diminish this
evil, for cai)able leaders .seek the support of followers of real
ability.
' King and Ruffcty, "Our Electoral System," p. 86.
THE HOUSE OF COMMONS 45 1
Members are elected for a term of five years or until a dis-
solution is ordered. Since 191 1, each member receives a salary
of £400 a year, except when he is in receipt of a salary
as an officer of the House, as a Minister, or as an officer
of His Majesty's Household. Although members are elected
for five years, they seldom, if ever,^ are allowed to fill out their
term to the close. A dissolution, involving a general election,
may occur at any time and will occur whenever, in a political
crisis, the Cabinet prefers an appeal to the country to resigna-
tion. When the end of a term approaches, the Government
endeavors to secure a dissolution at the time most favorable
for their own reelection.
For a long time Parliament met in annual session early in
February and was usually prorogued in August ; but in recent
years the limit has often been extended in either direction. At
the opening of the session the Commons are summoned to the
bar of the House of Lords to hear the King's Speech. The
Speech from the Throne outlines the Government poUcy for
the session as laid down by the Ministry. The House then
prepares an Address in reply, the discussion of which may
occupy two or three weeks. Amendments to the Address are
often moved expressing regret that certain matters were not
mentioned by His Majesty, etc. An actually hostile amend-
ment carried is equivalent to a vote of no confidence and involves
the immediate resignation of the Ministry.
The Speaker. — The Speaker is elected by the House and
confirmed by the King for the life of one Parliament, but in
practice he is always reelected as long as he will serve, and on
his retirement he is given a peerage. He is chosen from the
ranks of the party at the moment in power ; but as soon as he
is elected he is expected to lose all partisan bias and to become
the impartial presiding officer of the House. Since 1835 the
reelection of a Speaker has never been opposed and his seat is
not usually contested at a general election. In 1895 Mr.
Gully was chosen Speaker under conditions which offended the
Conservatives. An opposing candidate contested his election
to Parliament, yet the Conservatives in the House reelected
him as Speaker.-
1 Since 1837 the longest term closed July, 1865, and was six years, seven months,
and six days. The legal limit was seven years.
2 Lowell, "The Government of England," Vol. I, p. 259.
452 COMPARATIVE FREE GOVERNMENT
Especially since the introduction of new rules governing clos-
ure and other matters of parliamentary procedure the powers
of the Speaker are very great. His decisions are treated with
the utmost respect and from them there is no appeal. His
disciplinary powers include " naming " a member and even
his suspension from attendance in the House. The right to
suspend a sitting in case of grave disorder has occasionally been
exercised since it was granted to the Speaker in 1902.^ The
impartial and respected position which the Speaker holds is
well shown by the agreement to leave with him the delicate
decision as to what is a money bill, and so the power of declaring
what bills shall come within the scope of the Parliament Act
of igii.' Only in the case of a tie does he cast a vote, and then
he bases his decision, not uj)on his own opinion of the measure,
" but upon the probable intention of the House as shown by
its previous action, or upon some general constitutional prin-
ciple." ^ His whole position is the exact opposite of that of the
Speaker in the American House of Representatives, who is
himself a party leader, participates in the organization of the
house, and directs debate with the interests of his own party
in mind, although since the change in the house rules in iqio
his powers are diminished.
Committees. — The presiding officer, when the House is in
Committee of the Whole, is regularly the Chairman of the
Committee on Ways and Means, called Chairman of Com-
mittees. He is nominated at the beginning of a Parliament by
the Ministry from among their prominent supporters and serves
until they resign. Like the Speaker, he is expected to preside
in a strictly non-partisan manner, and he speaks and votes in
the House only on questions that have no political significance.
In the absence of the Speaker, he also presides over regular
sessions of the House. Since 1902, a deputy Chairman has
been chosen in addition, to preside in the ab.sencc of the Speaker
and the Chairman of Committees, so that no interruption may
come to the business of the House.
For the dispatch of business, the House resolves itself into
three great committees or one committee of the Whole House
• A recent instance is lh;it in tlic luiliinin of 1012, when feeling was running high
over the Home Rule Bill. ^OnK, " (jovernments of Europe," p. 112.
i< Lowell, "The CJovernment of Kngland," Vol. I, p. 262.
THE HOUSE OF COMMONS 453
acting under three names. The Committee of Ways and Means
considers all matters of revenue. The Committee of Supply
deals in detail with all estimates laid before the House by the
various government departments ; and revenue accounts of
India are reviewed by the Committee for India. The Com-
mittee of the Whole House discusses the clauses of Government
and Private Members' Bills that are not referred to Standing or
Select Committees. In Committee greater freedom of debate
is possible than in a regular session and members may speak
on the same question as often as they please. The Chairman
of Committees presides when any one of these committees is in
session. When the House is in Committee, the mace is not
on the table, — showing that the body does not then exercise
full legislative powers. At the opening of the session, Select
Committees ^ are appointed on Privileges, Standing Orders,
Selection, Public Accounts, Railway and Canal Bills, Public
Petitions, Police and Sanitary Affairs, the Kitchen and Re-
freshment Rooms. Their chief duties are indicated by the
names they bear. Fifteen is the usual number of members, but
it may be smaller and, by special leave of the House, may be
made larger.
The Committee of Selection - is a nominating committee of
eleven members, chosen by the House at the beginning of the
session. Its membership is really determined by the leaders
of the two parties. It is an important body made up of six
members of the Government and five of the Opposition. It
acts in a non-partisan manner and almost never divides along
party lines. This Committee appoints most of the members
of the other Select Committees, also the four great Standing
Committees, described below, and the Chairman's panel.
Nothing better illustrates the impartial character of these
Parliamentary committees than the Chairman's panel. This
panel of from six to eight men is chosen by the Committee of
Selection at the opening of the session. The panel then ap-
points from among its own number Chairmen for the' four
Standing Committees, sometimes called Grand Committees.
The object is to secure experience and continuity of policy in the
presiding officers. The conduct of business in committee is
^Ogg, "The Governments of Europe," p. 124.
'Lowell, "The Government of England," Vol. I, p. 266.
454 COMPARATIVE FREE GOVERNMENT
very largely in the hands of the Chairman, and upon his skill
and impartiality the success of the system mainly depends.
The four Standing Committees of from sixty to eighty mem-
bers are appointed at the beginning of the session. Every
bill that is read a second time and is not sent to a Committee
of the Whole House is referred to one of these Committees.
The Scottish Standing Committee is one of the four and is
composed of all the members representing Scottish constituen-
cies and not more than fifteen other members nominated for the
consideration of any bill, by the Committee of Selection. All
public bills relating to Scotland are referred to this Committee.
A Standing Committee conducts its business like a Committee
of the Whole House and is, indeed, a substitute for such a com-
mittee. In its organization and personnel, it reflects the va-
rious points of view of the larger body and carries on discussions
in the same way. It reports to the House the bills referred to
it, with or without amendments.
Other Select Committees than those nominated at the be-
ginning of the session are appointed by the House to inquire
into special questions or measures as they arise. Sometimes
they are Joint Committees acting with an equal number of
members of the House of Lords. The Committee of Selection
names Private and Provisional Order Bills Committees of four
members to deal with individual bills. Public Bills affecting
private interests are referred to hybrid committees api)ointcd
l)arlly by the House and partly by the Committee of Selection.
Parliamentary Bills. — Bills that come before the House are
divided into four classes, — Government, Private Members',
Private, and Provisional Orders Bills. First in importance
stand Government Bills, introduced by the Ministry in fulfill-
ment of promises made in the Speech from the Throne, in Par-
liament or on the platform. Such measures follow a special
procedure anri have peculiar facilities for being passed. But
any member may introduce a bill dealing with public questions,
and these are classed as Private Members' Bills. They have to
take their chances in a ballni for places on the calendar, and
little time is permitted for lluir consideration. No Private
Members' Bill that is opposed by a determined minority has a
chance of being |)assed, unless it isadojjted by the Government.
The third class is that of Private Bills by which private persons,
THE HOUSE OF COMMONS 455
companies, or local governments in particular places are affected.
They often deal with matters of local police, sanitation, the
granting of powers to municipal corporations or private com-
panies for supplying public conveniences, such as gas, water,
electric light, or tramways. Their passage through Parliament
is facilitated by committees. The objects of Private Bills
must be advertised before the bills are presented to Parliament,
in order that all persons affected by their proposals may be
informed. In Parliament they must comply with a large num-
ber of Standing Orders. The real discussion of a Private Bill
takes place in a Private Bill Committee of four members who
hear the evidence presented by all persons affected by the Bill
and report their decision to the House. In most instances
the report of such a committee is accepted as final. In order
to secure greater uniformity in legislation on railways and
canals, all bills dealing with those subjects are referred to one
large committee which appoints from its own members the
Chairmen of separate committees of four to deal with each bill.
A similar method is followed in reference to police and local
sanitation.^
Provisional Order Confirmation Bills are dealt with in the
same way as Private Bills, by special committees.^ These are
brought in by representatives of government departments
which have issued, under statutory powers, the provisional
orders requiring sanction. They are not, however, treated in
any sense as Government bills. Private and Provisional
Orders Bills relating to Scotland are dealt with by a special
process.
Passage through Parliament. — - The steps through which a
Bill must pass before becoming law have been numerous and
tedious, but the tendency of Parliamentary procedure as the
volume of business increases is to eliminate, or at least to make
purely formal, many of the historical processes. Discussion is
limited at the very most to five stages.
1 Private bills pertain to some local, corporate, or private interest. They are
subject to a special procedure in Parliament. Private Members' bills deal with
general legislation and are like Government bills, except that they arc introduced by
members not in the Cabinet. Private members may introduce Private Bills, but
such bills do not thereby become Private members' Bills. The distinction is in
the subject matter.
2 Lowell, "The Government of England," \'ol. I, p. 384 ct scq.
456 COMPARATIVE FREE GOVERNMENT
Important Government Bills are still introduced by asking
permission, and they occasionally are discussed at this stage.
The first reading offers no chance for debate. On second read-
ing, the first real debate, — a discussion of the general principles
of the bill, — takes place, and then if it is not shelved, the bill
goes either directly to the Committee of the Whole or to a
Standing Committee, or is referred first to a select Committee,
and then to one of the two former. In Committee the bill is
considered in detail and may be amended clause by clause.
When a bill has been reported, with amendments, from a
Committee of the Whole, and when it has been reported, with
or without amendments, from a Standing Committee, it is dis-
cussed in detail by the House on the report stage. Not only
the amendments made in committee, but new ones, may then
be proposed and discussed. The third reading allows only
verbal amendments and discussions of the bill as a whole.
If a bill passed in one House is amended in the other, it is
sent back for consideration of the amendments. When agree-
ment is reached between the two Houses, it is ready for the
Royal Assent.'
Private bills must be preceded by petitions and public notices
stating their objects. If the preliminary regulations have all
been complied with, the bill then goes through all the stages
of a public bill, but in addition, if there is opposition, it must go
through a judicial process in a private Bill Committee. This
Committee hears the arguments of those who support and those
who oppose the bill, amends it when it thinks best, and reports
to the House, which may emend, recommit, or pass the bill
to its third reading.
.Although private members are ])ermille(l to bring in public
bills, their chances of getting them through are very small,
for the Government apjiropriates to its own uses every sitting
except the evening sittings on Tuesdays and Wednesdays, and
the sittings on Fridays. Jiul the Tuesday evening sitting is
given to the Government by Standing Order after Easter, and
the Wednesday one after Whitsuntide, and all but the third
and fourth Fridays after Whil Sunday. The Government also
often seizes even more time by moving to take the whole time
' Money Bills and Accounts follow a special process and will lie discussed later.
Sec p. 476.
THE HOUSE OF COMMONS 457
of the House, before Ihe specified holidays. In 191 1, Government
business, including the time for election of Speaker, swearing in
of members, King's Speech, Supply, etc., occupied a hundred
and sixty-three of the hundred and seventy-two days in the
session, leaving nine full days for some six hundred and thirty-
five members to bring in their bills and resolutions.
Limiting Debate. — As the length of debates increased,
and especially since the systematic obstruction by Irish
Nationalists began in 1880, some means of limiting debates
has been found necessary. Closure of debate, introduced in
1882, has been extended until now, after a question has been
proposed, any Member may move " That the question be now
put," and unless the Chair considers the motion an abuse of the
rules of the House or an infringement of the rights of the minority,
it is put without amendment or debate ; the only requirement
being that it must have the support of at least 100 votes.
The same rule has been applied to Standing Committees,
where twenty members may force a closure. Since 1887, a
system of " closure by compartment " has gradually developed,
by which a certain amount of time is allotted for the discussion
on various portions of a bill. This method of concluding debate
is often called " The Guillotine," because of the inexorable close
which it brings to discussion. The system has been further de-
veloped by allocating time to the various sections of a Bill before
discussion begins and so avoiding the evil of allowing full debate
on the first clauses and none on the later clauses of a Bill. In
191 1, a variation of this system of closure was introduced and
nicknamed " The Kangaroo Closure." It gives the Chair power
to choose out of a selected group of amendments those he holds
it most profitable for the House to discuss, " and the alertness
and celerity of its movements account for its name." ^
Process of Voting. — Voting is carried on in the following
manner. The Chairman puts the question to an oral vote and
announces its result by saying, " I think the Ayes (or Noes)
have it." If any member of the minority challenges his de-
cision, a division is called. The clerks turn a two-minute sand
glass, bells are rung, and " Division " shouted by the police in
all parts of the building. All members who enter within six
minutes have a right to vote on the question. The outer doors
• " Liberal Yearbook," igi3, p. 8.
458 COMPARATRT FREE GOVERNMENT
of the House are then locked, the vote is repeated, and if again
challenged, two tellers are named from each side by the presiding
officer. They station themselves in the division lobbies at either
side of the House and the Members record their votes by passing
through these lobbies where clerks record their names. The
" Ayes " go to the right of the Speaker's chair and leave the
House by a door behind it ; the " Noes " go to the left and leave
by the other end of the room, and return in reverse order.
When the lobbies are clear, the four tellers report the vote to
the Chairman. " A Member may vote in a division, though
he did not hear the question put, but he is not in any case
obliged to do so, and can remain in the Chamber while the
division is in progress without recording his opinion." ' If
the Chair thinks a division frivolously called for, he may com-
mand a rising vote instead.
When the Government considers a question vital to itself.
Government whips are appointed as tellers and its supporters
are expected to vote with the Government. The Opposition
similarly indicates whether it considers the vote a party matter.
If private members are appointed as tellers, any member may
vote as he pleases without being reproached.
REFERENCES
Anson. Law aiid Custom of llic ConslUution, igoi, Vol. I.
liAGKHOT. The Enfilisli Cotislihttion, Edition IQ04, Chaps. V and VI.
Courtney. The Working ConslUution of the United Kingdom.
Dickenson. The Development of Parliament during the Nineteenth Century.
Liberal Yearbook, 1904, and annually since.
l.owELL. The Government of England, 1908, Vol. I, Chaps. IX-XXII.
(Jgg. The Governments of Europe, Chaps. IV-VI.
Pike. Constitutional History of tlir House of Lords, 1804.
Redlich. Thr Procedure of the House of Commons, three Vols., iqio.
Tlmi'LE. f.ifc in Parliament,
loui). On Parliamentary Government in England, ildition 1889.
' " Liberal Yearbook," IQ13, p. 7.
CHAPTER XXXVI
The House of Lords
More venerable than the House of Commons, as old as the
Crown itself, the House of Lords stands as a monument to
English conservatism. The name came into use when the rep-
resentatives from counties and boroughs separated themselves
from the Great Council and formed the House of Commons ;
while the old Council continued under the new name. First
among western European nations the English achieved a mon-
archy with a dominant position, but it was a monarchy which
could never become absolute because there was ever at hand a
council of dignitaries from whom the monarch received his
crown. Better than any other institution the House of Lords
expresses the unbroken continuity of the government.
The Meeting Place. — The Chamber of the Lords is much
more imposing than that of the Commons, although the general
arrangement of the two rooms is the same. Instead of the
somber hues that prevail in the Commons, the Hall is rich with
gold and crimson. The Throne at the upper end of the room
dominates all. Before it, in the broad aisle, is placed the Wool-
sack, a not too comfortable seat for the Lord Chancellor to
occupy. A few cross benches stand in the broad aisle for peers
who have not allied themselves with either party and beyond
them is the table for the clerks of the House. At the lower
end of the room beyond the Bar, a few seats and standing room
for the public are provided. Peeresses may sit in the gallery
which runs round three sides of the room. The general ar-
rangement of seats and of parties corresponds to that in the
Commons. The room is larger and the attendance much smaller
than that of the popular Chamber, so that the red-leather
cushions are usually revealed in all their glory. As in the
House, the leaders of debate for the two parties sit facing one
another on the front benches at the right and left of the Lord
459
460 COMPARATIVE FREE GOVERNMENT
Chancellor. Only a very small proportion of the Ministry,
especially in the Liberal party, sits in the House of Lords.
Composition of the House of Lords. — The Lords Spiritual
and Temporal, 641 ^ in number, compose the Upper Chamber.
The Lords Spiritual are all Bishops of the Church of England
and number twenty-six. The Archbishops of Canterbury and
York, the Bishops of London, Durham, and Winchester sit
by virtue of their offices, and the twenty-one senior Bishops
also have seats. They are members of the House only because
they are Bishops, and cease to be members when they leave
their offices. Of the Lords temporal, the most important
and numerous are the hereditary peers of the United King-
dom from princes of the blood royal down to barons. The
Scottish peers are represented by sixteen elected peers, chosen
from among their own number (31) for the duration of one
Parliament by all the peers of Scotland, Ireland is represented
by twenty-eight peers who are elected for life from among the
Irish peerage as vacancies occur. In 1915 there were 19
Scotch peers without seats in the House of Lords and 59 Irish
peers.2 Scotch peers who are not elected to the House of
Lords have no right to be elected to the House of Commons,
but Irish peers may be elected for any constituency outside of
Ireland. In order to supply more legal talent for the important
judicial functions of the House of Lords, Sir James Parke was
created a life peer in 1856 ; but the right of the Crown to create
life peers was denied by the House. In this case the difficulty
was solved by giving Sir James an hereditary peerage as Baron
Wensleydalc. In 1876, however, two Ufe peers, Lords of Appeal
in Ordinary, were created, and the number has since been in-
creased to four. They hold their j)osition and receive their
salaries like other judges and also have a right to sit in the
House after they have ceased to serve as judges.
The House of Lords is popularly thought of as representing
mainly the ancient landed aristocracy of the United Kingdom,
and in its sympathies it does so, yet only about one fourth of
its members sit there l)y virtue of i)eerages dating before 1800.
In 1830 there were 400 members of the House of Lords, but the
number has rapidly increased. I'Vom 1830 to 191 1 the liberal
ministers added to the meml)crshi|) of tlie House 286 new peer-
' Correct (or uji.\. ' "The Statesman's Yearbook " for 1915, P- 5-
I
THE HOUSE OF LORDS 461
ages, and the Conservative ministers 181, sixty-four of these
being created by the Liberal Ministry between 1905 and 191 1.
This constant stream of additions tends to change the political
color of the House, but it is counteracted by the conservative
traditions of the Lords. About four fifths of the members of
the House belong to the Conservative party.
As there is much less business to be transacted by the Lords
than by the Commons, their sittings are not so long. The
House usually meets at a quarter past four o'clock on the first
four days of the week, and does not usually sit on Friday or
Saturday. The sittings do not ordinarily extend into the
evening. Attendance, except upon rare occasions, is very mea-
ger ; the average is less than fifty. The small number of three
is necessary as a quorum, but no vote by division can be taken
unless at least thirty lords are present.
Discipline and Procedure. — The Lord Chancellor, who is
usually but not necessarily a peer, presides in debate, as Speaker,
but without the authority of the Speaker of the House of
Commons as guardian of order. He does not even decide
which of two speakers shall have the floor and he has no casting
vote in case of a tie. The House itself decides who shall
speak, and also maintains order. ^ A motion to cast the duty
of deciding on points of order upon the Lord Chancellor and the
Lord Chairman was rejected in 1908. A Lord Chairman of
Committees is elected for the life of a Parliament and is given
full power to decide points of order in Committee. He also
has great influence over private bill legislation.
In general, procedure in the House of Lords resembles that
in the Commons. A bill must pass through the same stages
as in the Lower House, but it is usually not discussed until the
second reading when it may be passed with the understanding
that important amendments are to be made in Committee. A
bill after passing the second reading or after passing through
committee of the Whole House, may be referred to a Standing
Committee. It is not usual to oppose a bill on its third reading
unless the majority at previous stages has been so small as to
leave the real opinion of the House uncertain, in which case a
bill may receive real opposition on the last reading and may
even be defeated.
1 Lowell, "The Government of England," Vol. I, p. 402,
462 COMPARATIVE FREE GOVERNMENT
Since the Lords need to spend very little time on finance
legislation and are not eager to be heard in debate for the sake
of their constituents, they are not so much pressed for time as
are the Commons and they do not need any rule for closure of
debate. Their share in the work of legislation is, however,
still far from negligible. In the committee stage they often
whip into shape a bill that has been much mutilated and dis-
torted in a contested passage through the Commons. Amend-
ments made in either House to a bill sent in from the other may
be accepted, rejected, or modified by that other. Provision
is made for conference in case of serious disagreement, but
such a method of settlement has long been wholly formal and
since 191 1 the will of the Commons can be made ultimately
to prevail. Opposed private bills are referred to committees
of five members, nominated by the Committee of Selection,
over which the Chairman of Committees presides. No peer
is compelled to serve on such a committee, but if he con-
sents to serve, he must attend during the hearing of the whole
case.
The Lord Chairman of Committees exercises more influence
than any other person over all private bill legislation, for he
examines all private bills, even before they are read by the
Speaker's Counsel in tlic House of Commons, and endeavors
to protect public interests and to remove objectionable clauses
before the bills come to the Committees. This he does, not
through the Committees, but through conferences with the
promoters who are practically obliged to comply with his wishes,
as the Lord Chairman always moves the third reading of a
private bill in the House of Lords and he would refuse to act if
the bill were not altered to meet his advice.
Because the House of Lords is less pressed for time, the Gov-
ernment sometimes introduces a few of its less important meas-
ures in that House, but this can only be done with success by a
Conservative ministry, since the Lords would always amend a
Liberal Government bill that dis[)leased them, and no time
would l;e gained. Private Members' liills fare even worse,
since even if such a bill has been passed by the Lords, it stands
but little chance of getting through the Commons in the crowded
days toward the enrl of the session. The result is that of the
few private Members' Bills enacted each session only about
THE HOUSE OF LORDS 463
one sixth originate with the peers. Private Bills, however,
fare better in the Lords than in the Commons, and the Private
Bills Committees of the Upper House are regarded with more
favor than those of the Lower, because of their greater ex-
perience. The more leisurely House thus is really of great
importance to the country in respect to non-political measures
which are really vital to the local and general welfare of the
nation.
The House of Lords is the remnant of that Great Council
of the King which in former days exercised nearly all the func-
tions of government. Traces of all its varied powers remain,
although its importance has steadily waned as the power of the
Commons has increased. It is still, however, the highest court
of appeal for the United Kingdom, except in ecclesiastical
cases. Any lord has the right to attend when the House sits
as the Court of Appeal, but actually only the Law lords and
others who have the necessary legal talent and experience do
take part in the Court.
The Relation of the Peers to the Commons. — As a coordinate
branch of the legislature, the House of Lords must give its
assent to every act of Parliament before it becomes law. Until
the passing of the Parliament Act in 191 1, the real division of
power between the two Houses had not been definitely stated,
and repeated struggles over the passage of bills occurred. As
early as 1671, the Commons asserted " That, in all aids given
to the King, by the Commons, the Rate or Tax ought not to
be altered by the Lords." The right of the Lords to amend
financial bills was thus early disputed and came gradually
to be discarded, although the right of absolutely rejecting a
money bill continued to be asserted. The dispute over the
paper duties Bill in i860 led to the inclusion of all taxes in
one great measure of Supply, which, it was assumed, the
Lords could not reject. The device of " tacking " or adding
measures not of a financial nature to privileged financial legis-
lation has at times been attempted by the Commons, but it
has been dropped of late years, and various devices for allow-
ing the Lords to express their will in altering mone)^ bills have
been developed.
In iQoq, however, the House of Lords definitely rejected
the annual Budget and created a deadlock in legislation which
464 COMrARATIVE FREE GOVERX^^IEXT
threatened to wreck the very parliamentary system itself.
The general election of January, 19 10, was fought out very largely
on the issue of the Lords' vote, and after the accession of George
V (1910- ) the second general election of 1910 was practi-
cally a referendum on the Government and Opposition schemes
for reform of the Upper House so as to limit its power. The
Government was sustained, and accordingly the Parliament
Bill of 191 1 passed the House and was submitted to the Lords
who passed it, rather than have enough new peers created to
carry the Bill through. This act, which had been passed in
identical terms by the Commons in 1910 and 191 1, recognizes
that ultimately a reform in the composition of the Upper Cham-
ber must be effected, but provides for at once removing the
absolute veto of the House of Lords. If a Money Bill which
has passed the House of Commons and has been sent up to the
House of Lords at least one month before the end of the session
is not passed by the House of Lords within one month, it may
be presented to ?Iis ]\Iajesty for the Royal Assent and may
become an Act of Parliament without the assent of the Lords.
The Speaker of the House of Commons is empowered to decide
whether a Bill is a Money Bill and whether proposed amend-
ments change its character as a Money Bill.
" If any Public Bill other than a Money Bill ... is passed
by the House of Commons in three successive sessions (whether
of the same Parliament or not), and, having been sent up to
the House of I>ords at least one month before the end of the ses-
sion, is rejected by the House of Lords in each of those sessions,
that bill shall, on its rejection for the third time by the House of
Lords, unless the House of Commons direct to the contrary, be
presented to his Majesty and become an Act of Parliament on
the Royal Assent being signified thereto, notwithstanding that
the House of Lords have not consented to the Bill : provided
that this provision shall not take elTect unless two years have
ela])sed between the date of the second reading in the first
of those sessions of the liill in the House of Commons and the
date on which it passes the House of Commons in the third of
those sessions." '
The Act also substitutes five for seven years as the maximum
duration of a Parhament.
' 'I'lic rarliamcnt Act, igii, 2. George V.
THE HOUSE OF LORDS 465
Relieved of the incubus of a permanently Conservative Upper
House with unlimited powers of obstruction, the Liberal Gov-
ernment can now pass its Budget at once and can put through
other legislation in from two to four years.
REFERENCES
(See References to Chap. XXXV.)
CHAPTER XXXVII
TiiE Ministry in Parliament
In the olden time an English king was accustomed to call
together the national Assembly, or Parliament, and to dehver
before it an address submitting for its approval the policies
decided upon and asking for supplies to support the government.
Upon their side the members of the Assembly were permitted
to present petitions for redress of grievances. Many of the
old forms are still followed, but the King's Speech with its pres-
entation of governmental policy has become the program of a
political party. The chief items in this program have been
for many months, and often for many years, subjects of debate
between the parties ; some of them have been party issues in
the previous election, and the victorious party comes to the
Parliament with a mandate from the people to do certain things.
Months before the meeting of Parliament in Fe])ruary, the
party leaders meet to agree upon measures which they will
submit for the action of Parliament, and before the session
opens the details of the various bills to be presented have
been formulated. The King's Speech is written by the party
leaders and the i)r()gram outlined is presented on behalf of the
people.
Relation to People and Parliament. — Each of the ruling
parties constantly lays claim to sujjcrior wisdom and cfTiciency
in discovering and carrying out the will of the people in respect
to all sorts of governmental business. When the people by
their votes have given to one party a majority in the House of
Commons, the leaders then have an opjwrtunity to make good
their claim. At a ]xirliamenlary election the voters have in
mind the choice of a party leader and his associates, who will
form a Government. The i)eople thus virtually elect the Prime
Minister and his Cabinet by voting for members of the House.
The party is the important factor in the election, the individual
466
THE MINISTRY IN PARLIAMENT 467
member voted for being of minor consequence unless he chance
to be a party leader or one of the inner circle who will form the
Government.
A responsible Ministry, in the EngUsh sense of the term, is a
body of men who have come into office under certain pledges,
promises, and expectations. They are responsible to the House
of Commons. With the support of Parliament they exercise
full political power and are also responsible to the people, as
an account of their stewardship must be given at a general
election within the five years following. Ministers may at any
time ask for a new mandate from the people, but as long as they
hold office their responsibility is complete because their power
is supreme.
Agreement between Parties on Essentials. — The working
of the party government is greatly facilitated by the practical
cooperation and agreement of the two parties upon the great
body of executive and legislative policies. Only in respect to a
few questions is there at a given time a serious conflict of opin-
ion. The exigencies of partisan debate, however, tend to
exaggerate the differences, while there is nevertheless a real
unity and cooperation arising from a common, intelligent interest
in the general welfare and a common appreciation of the cabinet
system as a unique contribution to the cause of free govern-
ment. Both parties believe in the system and are willing to
make sacrifices for its support. It was noted in the chapter on
the executive duties of the Ministry that each party is accus-
tomed to accept in good faith the deUberate acts of Parliament
and faithfully to administer laws whose enactment they may
have strenuously opposed. Much of the formal controversy
in the House of Commons has an air of unreality. The Opposi-
tion Party consents to assume the role of " devil's advocate "
and to say everything that can be said against a Government
measure before it goes into effect. The leaders of the parties
frankly cooperate in the formation of the Committees of the
House and in assigning to them the non-partisan legislation.
The larger number of Government Bills pass into law without
serious opposition from any quarter. There remain, however,
a few questions involving matters of peculiar interest to the
constituencies or certain sections of them on which the parties
radically differ.
468 COMPAFLVTIVE FREE GOVERNMENT
The Prime Minister. — Nearly every member of the House
is known as an habitual supporter of the Government or as a
supporter of the Opposition, and on each side of the House there
is one man who speaks with the authority of his party. On
the side of the Government he is the Prime Minister, unless that
leader chances to be a peer. With the changed relations of the
two Houses following the Act of 191 1, it is Hkely that the Prime
Minister will always be in the Lower House, or at least that
the leader of the Government in that House will be chief leader
of his party. The relation of the Prime Minister to the other
members of the Cabinet depends upon the personahty of the
man and upon the political issues dominant at the time. Other
leaders may be equally conspicuous and influential with the
official head of the Government, but it is the Prime Minister
alone who is in a position to speak for his party with supreme
authority. In like manner, the recognized leader of the Opposi-
tion is the unquestioned spokesman of his party.
The Cabinet is a thinking machine for the state. The House
of Commons has been described as an assembly having more
sense than any one of its members. The Cabinet, as a whole,
ought to be wiser than any leader, yet actual thinking is an
individual operation, and in each Cabinet one man, or a very
few men do the chief i)art of the guiding and directing. All
may give counsel ; few lead. All must sacrifice individual
preference, but some much more than others. If twenty men
must present one mind to the public, it is economy of effort to
find an individual mind that will meet the requirements. More
than half the Ministers are outside the Cabinet though they are
equally bound to give loyal support to the Government. They
must defend its policy when called upon in Parliament and when
they address the public they must take pains to say nothing
which will caus(,- it embarrassment. The responsible party
leaders think with the public and for the public. They reflect
the various shades of opinion in ihi- \K\v[y and they are open to
suggestions from outside. Whellier the coordinating and har-
monizing of opinion wilhin the Cabinet is the work of one or
{;f many, the result is ihf same.
Political Problems and Party Issues. — The (|uestions recog-
nized as party issues are those in respect to which opposing
parties have already reached contradictory conclusions. A
THE MINISTRY IN PARLIAMENT 469
few party issues become so fixed that cabinets are powerless
to change them. A Conservative Cabinet must, for example,
defend the Established Church and the existing social order.
There are, on the other hand, several problems of common
public interest which make an identical appeal to the rival
parties. For example, the fight against disease is non-partisan.
A third class of questions of great pubhc interest remains which
are, or may be, highly contentious in their nature, but which
have not yet become party issues. These furnish to party
leaders the real problem of corporate thinking. Every Cabinet
must make up its mind whether to espouse one side or the other
of the controversy and thus create a new party issue. Home
Rule for Ireland was for a few years a non-partisan matter;
then it became partisan by the act of a Liberal Cabinet. In
that instance, Gladstone, the Prime Minister, did the thinking
for the Government.
The policy of free trade versus a policy of protection and
especially the proposition to tax food, has long been a subject
for sharp conflict in opinion. It was treated as non-partisan
until Mr. Chamberlain, as Colonial Secretary in a Tory Cabinet
in 1903, outlined a pohcy of imperial federation which involved
a tax on wheat. But Mr. Chamberlain was not the authorized
leader of the Government. His utterance, therefore, meant
either that the party was already committed to a policy involving
a tax on food, or that there was a divided Cabinet. The Prime
Minister, Mr. Balfour, assumed a tolerant attitude towards
Mr. Chamberlain's program, while yet not wholly committing
his party to its adoption. For a time the Cabinet appeared
before the country as having two heads, or rather no head at
all. The anomalous situation was relieved by the resignation
of Mr. Chamberlain. The party, however, was rapidly be-
coming committed to the policy of protection. After the
Liberals had returned to office in 1906, Mr. Bonar Law, a noted
protectionist, was made the leader of the opposition. In a
public address he definitely pledged his party to a tax on wheat,
in case the colonies should wish such a tax. There was an
immediate agitation among his supporters in the House of
Commons ; the members were hearing from their constituents.
A paper was signed by nearly every private member in the
House, defining the party position on the pohcy of protection
470 COMPAIL\TIVE FREE GOVERNMENT
in such a way as to exclude, for the time at least, a tax on food.
These facts exhibit with unusual distinctness the English meth-
ods for attaining party harmony upon a new and divisive issue.
The Liberals had a similar experience in deaUng with the ques-
tion of women's suffrage. Cabinet officers were known to hold
opposing views on the subject. Promises were made to the
suffragists which could not be fulfilled. To conciliate those
who were offended the Cabinet promised to give the right of
way to a private bill granting the vote to women.
It is apparent that the real balance of the Constitution comes
more and more to rest with the two ruling parties in their
attitude towards the conflicting and divisive interests of the
public. The parties are the two eyes which enable the state
to see the two sides of important questions; the two hands
which may work together to fulfill accepted common needs;
the two feet enabling the body pohtic to advance step by step.
There is a constant shifting of support from one party to the
other in the outside public, and this tendency is reflected in the
House of Commons.
The Relation of Leaders to their Supporters. — Within the
House leaders and foUowers act and react upon one another,
while the opposing parties maintain a continuous duel. On
the Government side three distinct elements appear, the Cabinet,
the Ministers not in the Cabinet, and the private members.
The Cabinet alone determines the policy, the other ministers
being only official and salaried supporters. The entire Ministry,
however, acts as a unit ; its members stand or fall together.
The private members of Parliament who usually support the
Government are the ones to determine whether the Ministry
shall stand or fall. If the Government has a majority of a
hundred, fifty members may cause a cabinet crisis by voting
with the Opposition. Yet the fifty who thus act cannot govern.
They cither make themselves subject to the leaders of the other
party or they secure a new election which may, perchance,
change the policy of their own party. On all party questions,
the Ministry usually has against it the entire opposition party,
and on some of the parly issues it may incur the opposition of
some of its habitual sup])orters. The determinate action of the
House is thus in the hands of a few government supporters.
Private members may critici/.c the Government respecting a
THE MINISTRY IN PARLIAMENT 47 1
distinctively cabinet policy, but this is not permitted to a
member of the Ministry. The power of the House as con-
trasted with that of the Cabinet rests with the conduct of
private members. In a sense, the Cabinet guides, directs,
and controls the House of Commons. The House also guides,
directs, and controls the Cabinet; but the House can only
act in a rough, crude, and destructive way. It cannot really
govern without at the same time submitting to ministerial
control.
The Opposition in the House is also subject to constant stress
and to tendencies toward readjustment between the leaders
and their followers. Some are in danger of being won over by
attractive government poHcies, or they may give support to some
specific plan which the " Shadow Cabinet " opposes. It is,
however, much easier for the Opposition than for the party in
power to keep its followers together. They can more easily
conceal their discordant views. They are not subject to a daily
questioning and a constant fire of criticism on matters for which
they are held responsible. Yet even in opposition, a party has
need of a positive program. Elections are not usually carried
on mere criticism and negation. The case just cited of the Tory
party's attitude towards a tax on food is an illustration in point.
The Opposition experienced a party crisis, and the same sort of
sharp line of distinction was drawn between leaders and followers
as subsists, on the Government side, between ministers and
private members. Twenty-seven of the members of the Oppo-
sition were not asked to sign the petition to the party leaders,
because it was deemed not good form for one member of the
opposition Bench to petition another.
Two Ruling Parties and Minor Groups. — In theory the Eng-
lish system provides for two parties and only two. It is assumed
that the voters and the country at large will find their way in
matters of government by the use of two competing organiza-
tions. But no government ever works in practice in strict har-
mony with a definite theory. There is always a tendency to
form more than two parties. In all countries outside of the
British Empire where cabinet government prevails, there are
numerous parties and cabinets supported by a number of parties
which have agreed to stand together for the carrying out of a
prescribed program. In England this tendency to form numer-
472 COMPARATIVE FREE GOVERNMENT
ous party groups has for the most part been kept within the lines
of the two governing parties.
The most formidable attack thus far made upon the system
came from the Irish NationaUsts under the leadership of Mr.
Parnell. Eighty-seven members who resolutely stand together
in opposition to both parties are able to destroy or paralyze the
system. This condition arose in 1885. Neither party could
gain a majority large enough to overcome the Irish opposition.
The Liberals effected an affiliation with the Nationalists by
yielding to their demand for Home Rule for Ireland. This led
to a division in the party, and a separate Liberal-Unionist Party
was organized, which acted with the Conservatives in their
resistance to Home Rule. The balance was thus restored to the
ruling parties, but each was now composed of two distinct sec-
tions. By a long process of party adjustment, the Unionists
and Conservatives have become fused in a single organization
having a variety of names, as Unionist, Conservative, Tory,^
Constitutionalist. A similar process has been in progress in the
other party, but the fusion is less perfect. The NationaUsts
organized for a single purpose and with the attainment of that
end the reason for its existence ceases.
The case is different with the Labor Party. It arose to give
support to permanent policies of government which affect the
interests of the wage-earning class. The " Laborites " profess
to be equally ready to coo])erate with either of the old parties.
They have no intention of aspiring to become a ruUng party,
but only maintain an independent position for a group of mem-
bers in order to make their demands more effective. During the
Asquith ministry (1910- ) the members supported the Liberal
Government, while the Conservatives were bidding for their
favor. If parties of this type should become numerous, they
woulfl tend to change the English into the Continental type of
cahind goxcrnnu'nt.
The King's Speech and Vote of Censure. — As already ex-
plained in the chapter on the House of Commons, much of the
non-partisan legislation in Parliament is remanded to the various
committees, and nearly all the time of the House is devoted to a
duel between the two i)arties over the contentious policies of
' The word "Tory" as the niimc of an EnRlish party carries with it no stiRma such
as the term acquired in America at the time of the Revolution. It is an ancient and
THE MINISTRY IN PARLIAMENT 473
government. The party program as outlined in the King's
Speech is attacked by the Opposition and two weeks or more
devoted to criticism of the various measures proposed.^ At-
tractive substitute measures may be brought forward and the
Government is forced to carry a majority of the House against
them or to resign office or dissolve Parliament.
In February, 1885, Mr. Jesse Collins introduced a resolution
expressing regret that the Government had not included in their
program a measure to provide allotments of land for agricultural
laborers. The resolution was carried : Parliament was imme-
diately dissolved and there was an appeal to the country over
the question described in party parlance as " three acres and a
cow " for farm laborers. The address in reply to the King's
Speech cannot be amended by an opposition vote. Such a vote
is a notice to the Government to surrender to the Opposition.
Any member of the House may produce a cabinet crisis by carry-
ing a vote to amend the reply to the King's Speech.
There is another form of the vote of censure which, if carried,
is fatal to the continuance of the Government. In this case
the Leader of the Opposition moves a vote of want of confidence
in the ministry. The Government must defeat such a motion or
immediately resign or dissolve Parhament.
Cabinet on the Defensive. — With the improved discipline
of the supporters of the Government and the increased efficiency
in the organization of the parties these direct attacks are less
formidable. In fact, they make it easy for the Government to
muster its full strength in an impressive manner. What really
tries the life of a Cabinet is the effect of the divisions on doubtful
questions; the defects in their bills revealed in debate; the
amendments which they are induced or forced to accept; the
perpetual criticism from a trained and alert Opposition. The
Government may incur defeat on a minor issue without serious
injury, but in all such cases the Opposition will call for a resigna-
tion. Through a partisan press, the public is notified that the
Government is on its last legs. Repeated defeat does rapidly
weaken the position of the Government; hence it behooves it
always to have at hand a majority on all divisions however
honorable name of a great party and in recent years its use has been revived in the
phrase Tory Di-mocracy.
iLowL'll, "The Government of England," Vol. I, p. 308.
474 COMPAR.\TIVE FREE GOVERNMENT
trivial. Occasionally the Opposition takes the Government by
surprise. A time is chosen when few members are present and
enough voters are spirited in through concealed entrances to the
House to defeat the Cabinet. An amendment to the Home Rule
Bill was thus carried in 191 2. The Government was then hard
pressed for time to complete its program and the Prime Minister
gave notice that he would simply rescind the action of the
" snap " majority and proceed with the Bill. To do this, in-
volved a radical change in a long-standing custom of the House,
the removal of one more check upon " hasty legislation."
In the instance mentioned the Opposition prevented this action
by means of riot and disorder. The Government was forced
or induced to follow the old custom of framing a new amendment
which virtually destroyed the effect of the one carried by the snap
vote ; but this consumed a week of precious time.
It is economy on the part of the Government never to lose
its hold on its majority, never to be taken off guard. It is
likewise good politics for the Opposition to keep its supporters
well in hand; but with the Government this is a necessity if
pledges are to be fulfilled.
Party Whips. — The Party Whips and their assistants are the
chief agencies for marshaling the forces of the contending
armies. Four salaried officers in the Ministry serve as wliips,
while the corresponding officers for the Opposition act without
salary or are paid out of party funds. The Wliips are in the
Ministry, but not in the Cabinet ; they take no part in debate.
The Chief Whip may be promoted to a place in the Cabinet or
rewarded with a peerage. With his numerous aids and assist-
ants, the Chief Whip fills a place scarcely less essential to the
working of the system than that of the Prime Minister himself.
He serves as eyes and cars for his leader, who must be kept in-
formed as to the various movements among his followers in Par-
liament. He needs also to be informed as to tendencies among
the voters. On such questions, the Whip speaks with authority.
He is a trained politician of the first order. He not only knows
how to report pul)lic opinion, but, in a successful party, he is
master of the various devices for the direction of public attention
to partisan ends. He knows who among the leaders of his
party make a favoral)lc im[)ression on the pul)lic, anri for these
he may furnish occasions for frequent public appearances.
THE MINISTRY IN PARLIAMENT 475
There may be a public ceremonial function which apparently
has no connection with politics, yet an alert Whip may seek to
have the right man in his party selected to preside. Prizes are
to be distributed to young people who will soon be voters and
the Whip sees an advantage in having the embryo voter receive
the prize at the hands of a prominent party leader or a member
of his family. The Whips are not themselves leaders ; they
do not formulate or create public opinion ; but they see to it
that available sources of opinion or influence are directed to the
strengthening of their party.
The relation of the parliamentary Whips to local party agents
is described in the chapter on party organization. At present
we are concerned with their principal work, which pertains to
the House of Commons. By means of these officers the leaders
keep their hands on their supporters. On all party divisions the
Whips act as tellers. The leaders have an artificial way of
indicating to their followers how to vote. If the leaders do
not request the Chairman to appoint their Whips as tellers, he
will select tellers from private members. This is an indication
that members are to vote as they please.
The word "Whip" has two distinct meanings. The term is
derived from the " Whipper-in " at the fox hunt, and is apphed,
by analog}^ to the men who round up the party supporters on
Government divisions. The message by which this is effected
is also called a " whip." All the members receive these notices
to be present at a given time. If there is a question of doubt as
to the party standing of a member, the " whip " itself solves
the doubt. All are members who receive the notice. The Irish
and Labor parties have their separate Whips who send "whips"
to their members. Nearly all members of the House are thus
officially recognized as belonging to one of the parties, and are
classified as supporters or opponents of the Government. A
simple notice means that it is highly desirable that the member
should be present. A " whip " underscored means increased
urgency ; underscored with four black lines it is a notice to be
present on penalty of being accounted a traitor to the party.
The Whips are gifted with powers of persuasion. They make
personal appeals to refractory members. They dispense party
patronage and administer party funds. Loyal voting constit-
uencies may be called upon to " whip " in a member who is in
476 COMPAR.\TIVE FREE GOVERNMENT
danger of going astray. Among the members of the Ministry,
the Prime Minister is the chief party disciphnarian ; among
private members this duty devolves upon the Chief Whip.
The Relation of the Ministry to Finance. — The fusion of the
legislative and executive departments is well exempUfied in the
management of the finances. This business has always been
largely, and is now completely, monopolized by the House of
Commons. Under rules adopted early in the eighteenth cen-
tury all matters pertaining to the spending of money and the
raising of revenues are considered in Committee of the Whole.
Thus the House vindicates its right to be informed as to the
details of financial policies, but the business itself is retained in
ministerial hands. In Committee of the Whole on Supply all
the information comes from the heads of departments in the
Ministry ; there is no way for a private member to be heard in
favor of any appropriation not included in the ministerial reports.
Likewise, when the House is in Committee of Ways and Means,
every item in the measures for raising revenue comes from the
Crown. By long-standing rule private members are forbidden
to introduce any petition or bill involving an increased charge
upon the revenues. A private member may, however, propose
a reduction of taxation along Unes not included in the Govern-
ment program.
Finance, then, is emphatically a cabinet business. The
House may ask questions ; it may criticize ; it may refuse assent ;
but it may not initiate any important change in the ministerial
policy. While the House is in Committee of Supply it is quite
in order for the Leaders of the O[)posilion or any private member
to expose any weak point in the administration of the particular
department under consideration. Thus the departments, one
by one, are brought under public notice and an opportunity is
offered for the exposure of delinquencies.
The Chancellor of the Excheciuer is the efficient head of the
Treasury. He receives from all the departments the estimates
of expenditures for the fiscal year ending March 31. These are
considered and comparcfl, and from ihem a careful estimate is
made of the aggregate exi)endilure. The Treasury officers like-
wise make an estimate of the revenues of the state. Upon the
basis of the estimated needs for the fiscal year and the income
from permanent revenues the Chancellor of the Exchequer
THE MINISTRY IN PARLIAMENT 477
formulates such modifications in the taxing system as seem best.
The appropriations for the various departments and the changes
in the system of taxation are all embodied in one project of legis-
lation. This is known as the Annual Budget. In it is often
embodied the most important legislation for the year.
The contrast with the government at Washington is evident.
There large expenditures are made upon the irresponsible initia-
tive of private members who may wish to supply a friend with a
pension or a town in their district with a public building. Sup-
plies are awarded to the departments through a half dozen or more
unrelated committees. Taxes are levied with only incidental
reference to the annual expenditures. The separation of the
Executive from the legislature makes fiscal control more complex
and more difficult.
REFERENCES
Anson. Law and Custom of the Constitution, Vol. I, Chaps. VIII, IX.
DuPRiEZ. Les Ministres dans les principaux pays d' Europe et d'Amerique,
Edition 1893.
IIearn. The Government of England, Chaps. VI, VII, IX.
Lowell. The Government of England, Vol. I, Chaps. XVII, XVIII.
Medley. The English Constitution, Edition 1898, Chap. VI.
Ogg. The Governments of Europe, Chap. III.
CHAPTER XXXVIII
The Crown
The parties govern with little reference to the Crown ; never-
theless there is a king in England. No institution seems more
firmly established than the monarchy. Coincident with the
advent of democracy the Crown has grown more popular.
How could England be England without a royal family? That
democracy excludes monarchy is a crude notion arising from a
false analysis of government. Democracy is not a mere form
of government, it is a principle inhering in every form ; it may
assume many forms. The term "monarchy" does stand for a
particular form of government ; but the form admits of infinite
adaptations to every grade of popular control.
Monarchies Classified. — Between the absolute monarchy,
in which all power is conceded to the person of the monarch, and
the complete democracy, in which all power is conceded to the
voting constituency, there are unlimited varieties in govern-
mental mechanism. It may be helpful to an understanding of the
subject to reduce all monarchies to four classes: viz.. Absolute,
Limited or Constitutional Monarchy, Parliamentary, and Demo-
cratic Monarchy.' Of the first, autocracy or absolute monarchy,
Russia has been the standing exemplification, but with the
establishment of the Duma there ensued a transition to the
second class, viz.. Limited Monarchy. England was from the
first a limited monarchy. There was always an assembly
which participated in governmenl. England became a Parlia-
mentary Monarchy in the Revolution of 1688. The person of
the monarch then ceased to be the chief source of authority.
The Crown l)ecame subject to the Assembly. Ministers of
state became responsible to Parliament. In a limited, or consti-
tutional monarchy, the assembly exerts an inlluence, it may be at
times a controlling influence, over the monarch. In a parlia-
• Scignobos, "A Toljlical History of Contemporary Europe," Vol. 1, i). 117.
478
THE CROWN 479
mentary monarchy the monarch exerts an influence over parlia-
ment ; at times he may even exert a controlUng influence, yet
the governmental center of gravity remains with the assembly.
In the democratic Monarchy all this is changed ; both the Crown
and the Parliament become subject to the will of the enfranchised
nation. Since 1832 England has gradually changed from parHa-
mentary to democratic monarchy. Those who had been rulers
became servants of the public. Autocracy does exclude democ-
racy; monarchy does not. Norway is an intelligent, fully
enfranchised democracy, yet Norway deliberately adopted
monarchy without abating one whit of its democracy.
Royal Aid to Free Government. — ■ English devotion to
monarchy is not based upon blind, unreasoning sentiment, but
rather upon an inteUigent comprehension of the facts of history.
The story is already told in the chapter on local government.
Saxon kings wrought with the people in securing to them the
enjoyment of local liberties. Normans and Plantagenets
defended them against feudal tyrants. High-monarchy Tudors
rid the country of civil war and subjected lords and bishops
to parUamentary rule. The reaction against the innovating
Stuarts led to the subjection of the Crown also to parliamentary
rule. In 1832, when the time had come for the first great act
of enfranchisement, the House of Lords stood like a stone wall
athwart the path of progress. In this emergency it was the king
who made it possible to take the step without a bloody revolu-
tion. William IV gave to the Prime Minister the written state-
ment that, in case the peers again refused to pass the bill for
extending the franchise, he would create enough new peers to
pass it. Again, in 191 1, the obstruction of the hereditary House
was removed by the simple announcement of the Prime Minister
that, in case of further refusal to pass the pending IdUI, the king
would be advised to create new peers. Four monarchs in suc-
cession, their reigns covering the entire period of the enfranchise-
ment, have learned to cooperate with and assist the servants of
the people. It is, therefore, a mark of inteUigence as weU as of
right sentiment for the democracy to approve of the monarchy.
Relation of Crown to Cabinet. — The Cabinet system requires
that there shall be an executive head above the party leaders
who shall mediate between the parties. If there is not a king,
then there must be a president or some other officer. The Prime
480 COMPARATIVE FREE GOVERNMENT
Minister represents a party, not the entire state. There must
be an executive head who represents the state.
The mere formal act of receiving the resignation of a defeated
Prime Minister and sending for the leader of the victorious party
and asking him to form a new ministry is a necessary and an im-
portant service. But there are times when no party has a clear
majority ; times when, within the party, there is confusion in
leadership. At such times it may become the duty of the king
to act upon his own judgment, to take a personal share in bring-
ing order out of confusion. Lowell gives four instances in which
Queen Victoria determined by her personal choice who should be
Prime Minister.' A fifth instance, in 1890, illustrates another
phase of royal service. The Queen first sent for Lord Harting-
ton, who was nominal head of the party ; but Gladstone, who had
retired a few years before, had resumed actual leadership.
Hence it became the duty of the Queen to give effect to the
changed condition by making Gladstone Prime Minister.- All
these services are indispensable. Within the parties and between
the parties conditions are constantly arising which may call into
play the personal exercise of royal prerogative. So long as the
cabinet system works according to the theory of the modern
super-legal Constitution, executive power rests with the inner
circle of the Ministry. The monarch himself is a distinctly
subordinate minister to the Cabinet. He does what he is told
to do. But if the machinery is out of order, if there is an actual
or a' threatened deadlock in government, there at once ensues a
tendency to revert to the earlier Constitution, and the monarch,
from his vantage ground of an experienced, non-partisan ob-
server, may call the ministers to his aid to restore the govern-
ment to its normal coiidilion.
Changed Relations to the Democratic Cabinet. — Bagehot,
writing in the late sixties of the last century, has much to say of
the rigiUs of the monarch to be informed as to contemplated
ministerial |)olicies and the j)ossibility of his securing a modifica-
tion or a change of policy by his advice and council.'" The gov-
ernment was then parliamentary but not democratic. Under
the more recent democratic Constitution, it is no longer desirable
• "The (lovcrnmcnt of En,':land," Vol. I, p. 34.
• Morlcy, " Life of f ;ia(lstonf." Vol. 11, Chap. VIT.
' Uagirhot, "The l^nnlish Con .liliilion," Chap. III.
THE CROWN 481
that the monarch shall be informed in advance as to the cabinet
policies in order that he may advise or warn or in any way seek
to change the policy. It is enough that the Cabinet meet the
demands of their new masters, the people. Only harm and con-
fusion and waste of energy are likely to result from any sort of
royal interference with the partisan cabinet policies. Queen
Victoria was in many ways an ideal parliamentary monarch, but
there is evidence that much royal energy was worse than wasted
because she did not understand the changes involved in the
transition to a democratic monarchy.
The usefulness of the monarch in his relation to the demo-
cratic Cabinet consists in his remaining entirely aloof from every-
thing partisan. The Cabinet should formulate its policy without
advice or influence from the Crown, and royal approval should
follow as a matter of course. Disraeli was at one time rightly
reproved for presenting to the Crown a choice of policies. It is
unfair thus to bring the monarch into contentious poUtics.
So long as the parties work normally, the Crown has nothing to
do but to let them work. It is, however, desirable that the
monarch be informed as to the difficulties and the exigencies of
party politics, so that in case royal interference is needed, it
may be given intelligently. In some respects the position of
the king resembles that of the permanent under secretary whose
duties require him to serve with equal faithfulness the party
chiefs of each party. The secretary assists in overcoming party
difficulties in respect to the minor details of administration.
If the king takes no share in any partisan pohcy, unless a threat-
ening emergency has arisen, then he may act with authority in
such a way as to command general acquiescence. It was a serious
question in 1910 whether the Crown was justified in forcing the
peers to pass the measure depriving them of the power of veto.
The chief object of the general election had been to test the will
of the electors on that question. The monarch then expressed
a willingness to act upon the advice of his ministers in the matter
of the creation of new peers. The House of Lords yielded, and
the controversy was at an end.
The fact that the monarch has no share in ordinary party
government by no means detracts from his field of usefulness.
We have seen that, at any given time, only a few questions are
the subjects of party controversy. In this narrow held, party
482 COMPARATIVE FREE GOVERNMENT
leaders have a monopoly. The wide field of national life is still
open to the royal family. The warfare against disease has never
been partisan. King Edward VII took an active and intelligent
interest in the fight against cancer. The encouragement of
agriculture and other lines of industrial improvement are fit
subjects for royal activity. Members of the royal family are
especially in demand at public functions, such as the opening of a
school or a Ubrary, the dedication of a monument. They are
active in works of charity. Outside of the narrow field of party
politics, the opportunities for service are unlimited.
Foreign Affairs. — The relation of the Crown to foreign afi"airs
has been especially close and intimate. The two houses of Par-
liament have no share in the making of treaties. Legally the
business is in the hands of the King in Council. Constitutionally
it belongs to the responsible Gov'ernment of the day. But in
the middle of the last century the monarch was still active in
foreign affairs. For instance, the Queen and the Prince Consort
modified the dispatches sent to America at the beginning of the
Civil War in such a way as to avoid war. Such business now
would rest entirely with the Cabinet ; the monarch would not
be personally involved. By being entirely separated from the
controversial side of foreign relations, the monarch may now be
even more useful in facilitating right international conduct.
It is understood that King Edward was signally eflicient in
removing friction and promoting a good understanding in the
relation of England to France and to the other states of Europe.
The feeling of Europe towards England docs not involve per-
sonal censure of the Crown as the corresponding sentiment
towards Germany involves censure of the Emperor. The latter
is the object of censure because of specific personal acts, such as
the dispatch to Krugcr at the time of the Jameson Raid in the
Transvaal. The King oi England can l)c under no such censure,
although, knowing the mind and tcm[)er of his Ministers, he
has unrivaled opportunities for securing for them favorable hear-
ing in other states.
Democratic Monarchy is of very recent origin. I'.ngland is
still in the midst of the transition ; the work of political enfran-
chisement is not yet completed, a considerable number of the
male adults being still debarred from the ])rivilege of voting,
while the voting privileges of women are much restricted.
THE CROWN 483
Property enjoys an excess of privilege which gives to a few land-
holders enough votes to change the result of a close election.
The House of Lords has been deprived of much of its former
power, but it is yet to be reconstructed so as to harmonize with
the accepted Democracy. The House of Commons is over-
worked and relief is sought by a proposed devolution of power
upon provincial legislatures. These are all questions which
have to do with the mere mechanism of government involved in
the transition to democracy. To describe a democratic mon-
archy, then, involves the description of an institution which is
in the process of making. No state thus far exhibits a perfected
example.
The Crown as a Disguise. — Bagehot, writing more than forty
years ago, gave as a chief function of the monarchy to serve as a
disguise, a source of deception to the masses of the people,
causing them to think that they were cared for by a beneficent
royal family, while in fact they were governed by party leaders,
Bagehot wrote under the impression that monarchy was likely
to decUne with the rise of democracy, and he feared that with
the decline of monarchy, free government was in danger of losing
the Cabinet system which he regarded as vastly superior to the
Presidential system. He argued that, even if monarchy should
fail, it was still possible to continue the Cabinet with an elected
President. Monarchy, however, since that time has con-
tinuously grown more popular and the people, whose advent to
power Bagehot looked upon with fear and dread, are in no need
of a dignified institution to humbug them into a belief that they
are governed by processes which they do not understand. It
has now become evident that it was Bagehot himself that was
under a delusion as to the services of the Crown as a disguise.
The common people have apparently been quite correct in their
opinions as to how they were governed.
As a Symbol of Unity. — Much more fortunate is Bagehot's
designation of the Crown as the symbol of unity, the object of
patriotic sentiment. The King personates the state. Loyalty
to a person worthily fulfilling such a mission is different in the
sentiment involved from loyalty to a flag or to a temporary
President ; but monarchy is not at all essential to a strong and
persistent sentiment of loyalty. Probably no state has ever
existed which has more sentimental patriotism than has Switzer-
484 COMPARATIVE FREE GOVERNMENT
land to-day. The sentiment may exist and abound without a
person or a personating head. Yet, if the state has a personal
office of this sort associated with a thousand years of fortunate
history, it is an asset of considerable advantage. Americans
cultivate a sentiment of loyalty towards the stars and stripes,
but it is a sentiment created by effort, by association ; it does not
arise naturally as does the sentiment towards a royal family.
Americans give the personal touch to their patriotism b)'' making
of George Washington a patron saint and a symbol of unity in
the early day, and of Abraham Lincoln a savior and a deliverer
in the critical middle period of our history. Patriotism is
assisted by a personation of the state. This is one great function
of the EngUsh Crown and it seems as helpful to this end under
the democracy as under the high-monarchy Tudors.
The royal family has been and continues to be an important
factor in binding together the different parts of the empire.
Scotland and England, after centuries of war, became united
through a branch of the royal family. Edward I (1272-1307)
conquered Wales and conciliated the people by presenting to
them the new-born heir to the throne as " Prince of Wales."
This ceremony continues to be repeated and the Crown has no
more loyal subjects than the Welsh. It is a thousand pities
that there was not early found a " Prince of Ireland " also.
The royal family has neglected Ireland to the lasting detriment
of the country. It is significant that during recent democratic
days, royal neglect of Ireland has been recognized and efforts
made to repair the injury.
The service of the Crown is not less apparent in its relation to
the outlying possessions and dominions. Victoria was made
Empress of India to promote loyalty and strengthen the hands
of the Empire. Memljcrs of the royal family visit this great
possession for the same i)ur[)ose. This is a reasonable adapta-
tion of means to an end, though the results may not be easily
measured. There is, however, no uncertainty aljout the relation
of the Crown to the Dominion of Canada. The Canadians are
intensely loyal, after both the sentimental and the rational
manner. The sentiment is based upon the realization of what
they believe to be a superior form of democratic government.
Instead of the king they have in Canada a member of the royal
familv or some other statesman who serves as a non-partisan
THE CROWN 485
executive head. He fulfills for Canada the functions of the king
in England, and the political parties govern as they do in Eng-
land. Canadian loyalty has grown out of a conviction that the
English Cabinet system fulfills the needs of the Dominion better
than any other government. A similar condition prevails both
in Australia and New Zealand, dominions thoroughly demo-
cratic and self-governing in all domestic affairs, yet bound to the
British Crown by hoops of steel. In South Africa there are
Dutchmen (Boers) who a few years ago hated the English as
implacable conquerors and enemies. But the chief of the Boers,
as Prime Minister of the Union of South Africa, became a loyal
subject of the British Crown. This is not a bUnd, unreasoning
sentiment, but a reasonable recognition of favors received. It
is as the head of a group of self-governing democracies that the
monarchy of England is attaining its greatest glory.
All, therefore, which Bagehot said of the service of the Crown
as an object of patriotic sentiment remains in force when appHed
to the democratic monarchy. The same is true of the services
of the royal family as exemplars of morality and religion. The
publicity demanded by democracy tends to realize in the royal
family a fulfillment of ideal domestic virtues. The self-con-
scious and enduring democracy will see to it that those who are
born to the office of the head of the state shall be trained to the
right fulfillment of the duties of the office. Abundant oppor-
tunity is offered in the non-partisan public service to make it
easy and convenient to combine theory and practice in the
training of the members of the royal family.
A standing argument against Democracy is the apparent
absurdity of depending upon a chance majority of an ignorant
and untrained mob to decide intricate questions of statesman-
ship. American State and Federal Constitutions are con-
sidered mere mechanisms to enable the few to rule, despite the
temporary preferences of a majority of the people. The Eng-
lish Cabinet system, however, has had the effect of committing
the Tory party, the party of reaction and conservatism, to the
advocacy of immediate direct and unchecked democracy ; to
the policy of deciding the intricate questions at issue between the
parties by a direct vote of the people.' The Radical party in
1 Cf. " The Problem of Democracy and the Swiss Solution," in the Edinburgh
Review, Vol. 218, pp. 257-277, January, 1913.
486 COMPARATIVE FREE GOVERNMENT
England can scarcely afford to be less democratic than their
opponents. For the first time in human history, a great empire
is pledged to a policy of immediate, direct, and unchecked popular
rule. This position has been reached not through actual behef
in the principles of democracy, but by a process of exclusion by
a forced choice between policies regarded as evils.
Govermnent by Unanimous Consent. — The Monarchy gives
institutional expression to a complete refutation of the chief
argument against democracy. It is an observed fact that loy-
alty to the Crown is practically unanimous. We have here a
demonstration that a democracy may be unanimous on one
important subject. The EngUsh Crown has always stood for
an indefinite range of powers. The Cabinet is coming to be
associated with a narrow range of the few policies which are under
dispute. Here, then, are two institutions exemplifying two
Unes of governmental business — the field of unanimous consent
and the field of controversy. It is the common concern of all
patriots to enlarge the field of general agreement and to narrow
that of controversy. So long as the principle of democracy was
under dispute the Crown, on account of past associations, was
reduced to its lowest terms. To establish democracy, the Cabi-
net, at least in theory, had to make good its claim to plenary
powers. But with democracy conceded, there is nothing in the
way of extending the services of the monarchy in the growing
field of non-partisan conduct. This is a unique service of the
Crown in a new and untried form of government — that of giving
institutional expression to the unity of the state.
Education as a Means of Securing Public Servants. — Closely
allifd to this is another lesson which the democracy needs to
learn ; namely, that there are other ways of securing reliable
public servants besides the method of nomination and election.
The royal family are born, educated, and trained to the service
of the state. This principle admits of indefinite extension.
Democracy in I lie past has been militant. It has been forced
to fight for existence, forced to elect full-grown fighting men,
men often abounding in obvious defects and imperfections.
But with the end of warfare, a new sj)irit will ensue. Education
and training will hold a larger place in the determining of ix)si-
tion in the service of the state. It is said tliat in some of the
Swiss communes where democratic forms are conipaialiveiy old,
THE CROWN 487
some families choose and follow official life much as others fol-
low watchmaking or agriculture.^ The experienced democracy
will avail itself of heredity, natural aptitude, education and train-
ing in pubhc life as well as in private industry.
Members of the royal family in England have been trained to
service in the army and navy. This arises from the close hered-
itary association between the Crown and public defense and
from the fact that in the crude beginnings of democracy, mili-
tarism strikes the fancy of the public. In the experienced
democracy, this will be changed. The education of the future
king will be in the hne of his actual services to the state. These
pertain primarily to the solution of problems which arise in party
government. As a non-partisan arbiter between parties, he needs
to be well informed in the details of the party system. Much
more to the purpose would it be to place the heir apparent and the
heir presumptive under the tutelage of a board of undersecretaries
than under the orders of a military captain. It is no part of the
duties of a democratic king either to obey orders or to give
orders. His high mission is to assist in discovering and giving
adequate expression to the will of the people. A properly
educated monarch would know when and where to proffer his
services and many a wasteful party crisis would be forestalled.
The Crown, as has been pointed out, naturally gives emphasis
to the agreements between the parties. The trained monarch
would cooperate intelligently with the leaders of both parties
in securing efficiency. The very process of educating the future
king would tend to improve the civil service. Training for the
office concentrates attention of all parties on agreed methods
of improving the service. The trained monarch would unite
with party leaders in directing the education of the future per-
manent officials. The natural result of this would be to secure
to the cabinet system the economies of a bureaucracy without
sacrificing the advantages of suggestion and criticism from rival
party leaders who are alternately heads of the departments.
The system itself would tend to define and restrict the limits of
partisan controversy to the few questions in respect to which
there is real, widespread difference of opinion. Even in respect
to the few questions of doubtful policy the important advantage
' Lowell, " Governments and Parties in Continental Europe," Vol. II, pp. 225 and
226.
488 COMPARATIVE FREE GOVERNMENT
to the state rests not upon the assumption that the majority is
necessarily correct in its decisions, but upon the assured educa-
tional advantages derived from the attempt to settle doubtful
policies by securing a majority. Undoubtedly, a majority may
prove to be mistaken, but so long as the state rests for its stabil-
ity on unanimous agreement in most things, a majority of but
one comes by so much nearer the ideal. No better way has ever
been discovered or suggested for obtaining a working basis for
action on the few questions which are in themselves doubtful.
The method of obtaining majorities ought to be such as tends
to secure unanimous agreement. Getting majorities by free
and fair debate has such a tendency. The democratic monarchy
has an advantage over other forms of free government in that it
tends to draw a distinct line between the agreed and the con-
troverted policies of government.
Different Systems Compared. — Comparison between the
French and the English forms of cabinet government is more
fully discussed in a later chapter. It may be in order to state
here that if an elected president takes the place of the hereditary
monarch, there are both gains and losses incident to the change.
The president, it may be assumed, is a man of experience, a
leading statesman chosen to dedicate several years of his mature
manhood to the jiublic service. The system ought to yield a
uniformly high standard of ability in the office. The occupant
has also had experience in dealing with men on equal terms.
On the other hand it is much more difficult for the president to be
non-partisan or to be regarded as non-partisan. If the Prime
Minister, a party leader, is made President by party votes in
the legislature, partisan association inevitably goes with him
into the higher office. Whatever advantage there is in the royal
familv as an object of patriotism and as both a sentimental and
a practical bond of union in the state is largely sacrificed in the
case of the temporarily elected chief. The American Executive
furnishes no ready means of distinguishing between partisan
and non-partisan policies. The President is party leader, Prime
Minister, and King all in one person.
The Relation of the King to Parliament. — The time-honored
phrase " The King in I'arliamenl " has become an empty form
of words in the evolution of the democratic monarchy. The
King has practically nothing to do with Parliament, though
THE CROWN 489
ancient forms are still scrupulously observed. The crowning
of the monarch is a parliamentary ceremony ; Parliament pre-
scribes the coronation oath. The ceremony of calling, proro-
guing, and dissolving Parliament by royal order remains un-
changed. The monarch enters the throne prepared for him in
the House of Lords and reads the " King's Speech " to the two
Houses at the opening of Parliament. All these are survivals
of ceremonies which once marked the close relation of the King
to the Legislature. There is no law nor is there an established
rule of the Constitution which debars the monarch from sug-
gesting changes in a cabinet program, yet the " king's speech "
is written by the Cabinet, and the ministers alone are responsible
for every item. The monarch, in common with every subject,
has the right to request a modification of the laws. It is under-
stood that the coronation oath was modified at the request of
George V. But supreme lawmaking power now rests with the
Cabinet in Parhament and the Constitution consigns the mon-
arch to a subordinate position.
Queen Anne (1702-17 14) was the last ruler who refused to sign
a bill passed by the two Houses. There has been no change in
legal form, yet executive veto has entirely disappeared. The
Cabinet takes the place formerly held by the King. Executive
assent is assumed in every measure introduced by the Govern-
ment. The Ministry controls legislation. It may effectively
arrest or veto any measure it chooses during the process of
enactment. But when a bill has passed the final stage in Parlia-
ment, royal assent follows as a mere clerical act.
It has already been made evident that the monarch has no
connection with the Judiciary. The police and the courts of law,
formerly agents of royal power, are now far removed from any
sort of influence from the Crown. Through the Home Secre-
tary, the Cabinet exercises the pardoning power and directs the
conduct of the police. Through the Lord Chancellor, judicial
appointments arc made and judicial procedure modified.
The Supreme Service of the Crown. — With all its limitations,
the Crown fills a useful and important place in the cabinet
system. It is false and misleading to call the monarch a mere
figurehead. He is the real Head of the nation. At any moment
it may become his transcendent duty to exercise supreme power
in the name of and with the authority of the democracy. With
490 COMPARATIVE FREE GOVERNMENT
all the people united in loyalty to the Crown, poUtical parties
may with comparative safety indulge in a great variety of dis-
ruptive conflicts. Party leaders enter the Hsts conscious of a
visible special Providence whose services may be invoked to
prevent irretrievable disaster. It is almost treason to suggest
such a thing, yet it is a fact that the old prerevolutionary Consti-
tution of the Stuart monarchs still survives. Every form has
been religiously preserved. If the occasion required it, these
forms would admit of being vitalized and the earlier Constitu-
tion might by reversion become again the actual Constitution.
Such a thing could never be thought of unless a condition has
been reached which would call for a dictator. But this back-
ground of history is fitted to give courage both to the royal family
and to the radical democratic leaders in the work of perfecting
a system of government which will meet all the demands of a
government of the people, by the people, and for the people.
REFERENCES
Anson. Law and Custom of the Conslilittion, Vol. II, I-III.
Bagehot. The English Conslitution, Edition 1904, Chaps. Ill, IV.
Hearn. The Government of England.
Lee. Queen Victoria, A Biography.
I-OWELL. The Government of England, Vol. I, Chaps. I, II.
Ogg. The Governments of Europe, Chaps. I— III.
Queen Victoria's Letters (Editors, Benson & Eshcr, three Vols., 1909).
CHAPTER XXXIX
Origin of Political Parties
Political parties are found in all free states. Even in a des-
potism there are rival factions contending for power. States
pass from the rule of a despot to the rule of the people through
the medium of voluntary organizations which appeal for support
to the people. The party may be defined as an organ of public
opinion directed to political ends. Parties then are a necessary
agency in all states in which public opinion is recognized as a
factor in government.
Various Uses of the Term. — States may be divided into two
main classes with reference to their relation to party : first, those
in which permanent party organizations assume control of the
government, and, second, those in which parties do not govern,
but simply influence the government. England and the United
States illustrate party government with two ruling parties as
an integral part of the government. In the United States the
party organizations are legally recognized and, in the States,
regulated by statutes. In England, parties are constitutionally
recognized in such a way as to place party rules above the law.
America and England exemplify two radically different types
of responsible party government.
Outside of the Anglo-Saxon world, it is difficult to find any
state in which permanent " institutional " party government
prevails. In France, Italy, and other states, where some features
of the cabinet system are found, legislative majorities are main-
tained by temporary party coaUtions. The permanent parties
influence but do not control government. In Switzerland,
where democracy has arisen directly out of local communes and
cantons, a so-called political party maintains a majority in the
national legislature, but it does not presume to govern in the
English or the American sense of the term.
Like everything vital in the English Constitution, the party
has its roots deep in past history. After 1066, two peoples,
491
492 COMPARATR'E FREE GOVERNMENT
English and French, lived in the Island, representing two diverse
systems of government. For three hundred years two languages
were spoken, and it was much more than three hundred years
before the ideals of local liberty prevailed against innovating
foreign rule. All that has been said in previous chapters on
local government, the origin of the Crown, the House of Lords,
the House of Commons, and the courts of law, is contributory
to an understanding of the origin of parties. Every line of that
history is an integral part of the history of the rise of responsible
party government.
The charter of liberties of Henry I (1110-1135) marks a great
triumph of the English faction over the French. The curia
regis of Henry I (11 54-1 189) and his compact system of local
government appeared for the time a death blow to the French
feudal party. When feudal lords drew their swords on behalf of
English liberty and compelled King John to sign Magna Charta,
12 15, they won another great triumph of the English over the
French faction. For two hundred and sixty years after Magna
Charta continuous actual or threatened civil war prevailed.
Dukes and earls were pitted against one another and contended
for the control of the government. This was not party govern-
ment ; it was not primarily government by appeal to public
opinion ; but it was analogous to party government in that for a
long time it did involve a fairly equal balance between two con-
tending factions ; it did compel continuous attention to political
questions on the part of a large body of the citizens. Moreover,
the class which, united, would have been most dangerous to
liberty was divided and weakened ; and one other effect of the
centuries of conflict and war was to call into existence an ex-
perienced middle class in the counties and cities, who were capa-
ble of withstanding the later encroachments of royal despotism.
As noted in former cha])ters, the Tudor rulers, relying upon
the support of the middle and lower classes of the people, made
an end of civil war and brought the unruly factions under the
dominion of the courts. Then the middle-class folk in county
anrl city, with the House of Commons as a chief agency, sujiple-
mented for a few years by an army under Cromwell, made the
Crown subject to Parliamenl. Hut just at the lime that the
Crown was becoming subordinate Parliament itself was passing
under the control of permanent party organizations.
ORIGIN OF POLITICAL PARTIES 493
Relation of Party to Religious Controversy. — But to under-
stand the material out of which parties are evolved it is needful
to take account of the religious history of England. The Eng-
lish are by nature a religious people and their religion has tended
directly to the strengthening of the spirit of brotherhood, which
is the very essence of democracy. The early religious teaching
added greatly to the popular ability to resist tyranny in the
parishes, hundreds, and counties. The pastors and priests who
lived with the people often cast in their lot with them, while
the higher clergy were giving aid to their oppressors.
Each of the great national religious revivals in the twelfth,
thirteenth, and fourteenth centuries, added strength to the
popular aspirations for liberty. The third of these, led by John
Wyclif, threatened a complete revolution in Church and State.
The higher clergy were exposed as tyrants and the masses of the
poor were led to feel the injustice of their position. Under the
preaching of the Lollards they arose in rebellion, occupied Lon-
don, slew the Archbishop, and so frightened all sections of the
ruling classes that they combined under the Lancastrian mon-
arch to make an end of the open profession of Lollardy. Wyclif 's
teachings, however, were secretly kept alive among the common
people and became an important factor in making England the
leading Protestant nation of Europe two hundred years later.
The Christian religion strengthened democracy in many ways.
Lollardy was suppressed because it openly espoused the cause of
the wage earner. All combinations of laborers to improve
their conditions were forbidden, but the poor, nevertheless,
gained permission to unite in the support of a sacred altar or for
the rendering of a religious drama, and their rulers discovered
after a time that under the guise of religion these societies were
attempting to raise wages. Local religious organization was
always a means of training for democracy, and when the great
schism came in the English Church large masses of the people
were found to be already qualified to take an intelligent part in
the national controversy.
The political party system, which became the organ for the
modern triumph of democracy, grew out of religious controversy.
Queen Elizabeth found England equally divided between Roman-
ist and Protestant and she left it nearly all Protestant. In the
meantime Protestants had become divided into reactionaries
494 COMPARATIVE FREE GOVERNMENT
and reformers, or Puritans. The House of Commons opposed
the Stuart monarchs on many questions other than religious, but
it was religion especially that nerved the people to actual war
against Charles I.
Origin of Party Names. — Roundheads and Cavaliers were
the immediate precursors of Whigs and Tories. Roundheads
stood for Parliament and for a reformed Protestant religion.
Cavaliers upheld the Crown and the established order. Had
they fought out their disputes in Parliament and before voting
constituencies, instead of on a bloody field of battle, they would
have been political parties. Incident to the war, the execution
of the king and the setting up of a Commonwealth, there arose
a distinct spirit of democracy. Free government had already
taken root in America and this reacted upon the party of reform
in the mother country. A faction arose favoring direct rule
by the people in church and state alike and at no time since has
democracy been without advocates.
The monarchy was restored under a wave of reaction against
Puritan rule. Drastic measures were taken to crush out dissent
in the church and as a result nearly half of England became per-
manent Dissenters, separated from the established Church.
Since the restoration, one party has usually had the adherence
of the established Church and the other jiarty has received
support from dissenting churches.
The names Whig and Tory came into use as party desig-
nations in 1680. Shaftsbury as leader of the parliamentary
jjarty was securing petitions for the calling of Parliament with
the intention of excluding James H from the throne and making
the Duke of Monmouth the successor of Charles H. Counter
petitions were circulated by the other party, Shaftsbury's
supporters were called " petitioners " and their opponents were
dubbed " abhorrers." 1"he more odious term " Whig " was
fastened upon the petitioners by their enemies, thus associating
them with alleged treasonable covenanters in Scotland. The
Whigs retaliated with the term '• Tory," carrying with it an
association with Irish bandits. Names thus given in contempt
remained to designate honorable ruling |)arties.
Petitioners and abhorrers it would seem were not all of them
voters. Few citizens at that time had a right to vote, but for
centuries the great mass of the unenfranchised had been trained
ORIGIN OF POIITTCAL PARTIES 495
to take an active interest in politics. Especially had this been
the case for more than a hundred years when religious opinion
and church discipline had been the chief divisive issues in party
politics. The parties appealed to the mob as well as to the
voters for the support of their policies.
Factions become Parties. — With the advent of Whigs and
Tories there comes a reversion to that evenly balanced conflict
between contending factions which had come to an end at the
close of the Wars of the Roses in 1485. Again dukes and earls
in rival camps contend for the control of the state. The earlier
method of warfare was by the use of actual arms. Parliament
was used as a tool of victorious generals to complete the destruc-
tion of their enemies by impeachments and bills of attainder.
Whigs and Tories now found Parliament in continuous pos-
session of the powers of government. In order to govern, it
was necessary to control Parliament, but not by a victorious
army, for no civil war worthy of the name has arisen, under
the party system. Parliament has been controlled by means
of elections, by persuasion, by bribery, and by appeals to the
mob threatening civil war. At every stage in their history
party conflicts in England exhibit their ancient background of
war. The language is military, the spirit is military, and much
of the actual conduct has been violent. Wilkes as a leader of
mobs, 1780, vindicated the right of a constituency to decide
who should be its representative in the House of Commons.
The unenfranchised classes took part in elections and in the
conflicts between Pitt and Fox as rival leaders ; the election of
a member often degenerated into street fights continuing many
days. Militancy has not even yet wholly disappeared ; wit-
ness the conflict over the Home Rule Bill for Ireland. American
parties have not the ancient background of war and party
conflicts are less violent.
Prior to the enfranchisement of 1832, the Whig party was
composed of leading families of the nobility supported by voting
constituencies in the towns and cities. The Tory nobility on
the other hand looked for their following to the squire and parson
in the counties. The two parties thus reflected ancient and
fundamental divisions in local government. The Whigs were
sponsors for the trading and industrial classes chiefly located in
cities or boroughs ; while the Tories had the larger support from
496 COMPARATIVE FREE GOVERNMENT
the counties. This division is quite in harmony with the rela-
tion of the parties to the churches, described in a previous para-
graph. The dissenters or non-conformists who supported the
Whigs lived for the most part in towns, while the Established
Church predominated in the country. These divisions were
at no time complete ; Whigs always had some support from the
counties and from the Established Church, and the Tories had
some city members.
The democracy is gradually removing the separate party
alignments of town and country. Disraeli, as Tory Prime
Minister, made a direct bid for the city vote by the enfranchise-
ment act of 1867. This is usually characterized in party slang
as " dishing the Whigs." The Liberals responded in 1884 by a
corresponding act enfranchising agricultural laborers. The
Conservatives replied by a comprehensive bill providing for
direct democratic rule in all the counties and in London. A dis-
pute over the property rights of the Church and over the rela-
tion of the Church to education has tended to prolong the
ancient party alignments based upon religion. With the
settlement of these disputes, church policy in England would
cease to be a party question as it has ceased to be in Switzer-
land, the United States, and Norway.
From Queen Anne (1702-17 14) to George III (1760) the
House of Lords was Whig ; since that date it has been Tory.
There was a party realignment when Pitt became a Tory
leader in 1784. A more drastic realignment followed when
Tory reformers supported a Whig ministry in the passage of
the Reform Act of 1832. Party names were changed at this
time. Liberal was substituted for Whig, and in course of time
the term Whig entirely disaj)peared as the name of a party.
Conservative was likewise substituted for Tory, but both names
still survive. On account of the rise of Liberal-Unionists,
previously described, a third name has been added. So that
the same i)arty is called at different periods Tory, Conservative,
or Unionist.
REFERENCES
CiruRCiiii.L. Life of l,nrd Riuidnlt^h Churchill.
Constilulional Yearbook.
CooKK. The History of f'arly from the Whig and Tory Factions in the Rrif^n
of Charles II to the Reform Ad, 1832, three Vols., 1837.
ORIGIN OF POLITICAL PARTIES 497
Dickinson. The Development of Parliament during the Nineteenth Century.
Harris. History of the Radical Party in Parliament.
Kebbel. History of Toryism.
Leckey. History of Englatid in the Eighteenth Century, seven Vols., 1903.
Liberal Year Book.
Lowell. The Government of England, 1908, Chaps. XXIX-XXX.
2K
CHAPTER XL
The Parties in Parliament
The President of the United States and members of Congress
come into office pledged to carry out a party platform adopted
at a National Party Convention. In England the Parliament it-
self takes the place of the National Convention. The King's
Speech is the platform for the session and the Cabinet is the
authoritative party committee. Surrounded by their supporters
in the House of Commons, the party committee proceeds to ful-
fill its promises to the voting constituencies under the criticism
of the party committee of the defeated party. It is as if the
National Nominating Conventions of the ruling parties in
America were to meet together in one room, and the party of
the majority were in actual possession of the government and
obliged to formulate and to carry out both legislative and ex-
ecutive policies in the presence of the minority party. The
House of Commons is the meeting place of the ruling parties.
The proceedings arc peculiarly interesting because the makers
of the party platform are at the same time carrying it into
effect. The interest is increased because the rival party is
present in force, and at every stage is striving to convince a
majority of the assembled supporters of the two parties that
they are themselves in possession of a better policy. Publicity
is thus secured. Under the fire of expert criticism, the Govern-
ment modifies its policy and, as finally executed, the program
eml)odies the wisdom of l)olh parties. At the opening of the
flaily sessions, an hour is consumed by the Ministers in giving
account of their conduct in answer to questions of which pre-
vious notice has i)een given. This is an important part of the
machinery for keeping the House and the country informed on
mal tcrs of public interest.
Relation of the Cabinet to the Two Houses. — Party, or
cabinet, government is compliraled by the existence of two
40«
THE PARTIES IN PARLIAMENT 499
houses in the legislature. The rise of the Cabinet, as has been
shown, belongs to the period in which the House of Commons
held the leading place in Parliament. It is preeminently a
House of Commons institution and its responsibility is to that
House, though a considerable number of both cabinet and non-
cabinet ministers have always been members of the Upper
House. Much of the time the Prime Minister has been a peer.
The system requires a recognized official party leader of each
party in each House. One of these is the leader who becomes
Premier when his party wins the majority in the Commons.
The other is the leader of debate in the other House. If the
Premier is a peer, the leader of debate in the Commons holds
a position of great responsibility. He is on the field of battle
and must respond to the changing moods of the conflict. Yet
only the Prime Minister is in a position to give utterance to the
final conclusions of the party on disputed issues. Greater
unity and ej6(iciency are secured by combining the office of party
leader with leadership in the lower House. With both of the
parties thus organized the varying positions assumed in the
exigencies of the conflict carry the weight of final authority.
Only in the House of Commons are there party whips. Here
the two parties must keep their supporters well in hand. The
battle is on all the time and pickets are set to watch the soldiers
of the enemy. The whips and their assistants are always on
the alert to discover a party advantage.
The members of the Ministry in the House of Lords have
fewer political and legislative burdens. The sittings are brief,
the business not exacting, and Ministers are more free to attend
to the administrative duties of their office. One argument in
defense of the Upper House has been that it furnishes numerous
ministers who were not overburdened with other than ministerial
duties. When the head of one of the departments is a peer, the
parliamentary Secretary of that department must be a commoner.
Some one in the Commons must answer for the conduct of each
department. When the chief is a commoner, the Secretary is
likely to be a peer. It is not, however, essential that all the
departments be represented in the Upper House. The Treasury
is never thus represented.
Until 1832, the theory of equality between the two houses
had prevailed. Except as to matters of taxation, the Lords
500 COMPARATIVE FREE GOVERNMENT
equally with the Commons participated in legislation. The
act of Queen Anne in changing a Whig into a Tory House by the
creation of twelve new peers was viewed as unconstitutional.
When, however, after long debate and an appeal to the constit-
uencies, William IV gave notice that in case the peers again
refused to pass the reform bill, it would be passed by the creation
of new peers, a distinct change was effected in the Constitution.
Henceforth, the political constitution made it the duty of the
peers to pass all government bills which in their opinion had the
support of the country. They still had a right to amend bills
or to reject those of doubtful support.
It is one of the marvels of English history that the House of
Lords should have maintained its position without further
change for nearly eighty years, controlled during all this time by
one party. When the Conservatives were in power, every act
of Parliament was in the hands of its friends in both houses. No
government bill would be rejected and if amended, it would be
in a friendly spirit. There could be no conflict between the two
houses. Tory ministers in both houses could cooperate with
the full assurance that they were in command of the entire leg-
islature. For one of the parties Parliament became practically
a single chamber. When the other party was in power, there
were two chambers and one of them was politically hostile to the
other. Numerous bills passed by a Liberal government have
been rejected by the House of Lords. The principle had been
clearly enunciated that it was the duty of the peers to follow
the lead of the Commons, not to obstruct legislation which
the people's representatives approved ; but the rule of action
was indefinite. Just when should the lords yield? How should
they know what bills had the support of the country?^ Some
expositors answered by saying that the peers had a right to
reject all bills, but if the same measure should be sent uj) a
second time, it should be passed. Especially should the peers
yield, if, upon the rejection of a bill, Parliament should be dis-
solved and the same government should be returned to power.
In practice, however, the ])eers had a free hand in rejecting a
large proportion of the hills j)assed by a Liberal Government.
Not only so, but by amendment they changed the character of
much of the Liberal legislation which they consented to pass.
' Dicey, "The Law of ihc Constitution," p. .584 (1885).
THE PARTIES IN PARLIAMENT 501
That such a condition should continue so long is proof of the
conservative character of the radical party.
The change came in 191 1, after the House of Lords had refused
to vote for the Government Finance Bill of 1909. For many
years there had been growing hostility toward the Upper House.
Numerous plans for its reform had been proposed. The rejec-
tion of the Budget precipitated action.^ The peers have still
the power of delaying a cabinet measure for a period of two or
more years. It has, however, become possible for a strong
Government ultimately to pass a bill despite the resistance of
the peers.
The Act of 191 1 satisfies neither party. The Liberals secured
its enactment as a makeshift pending a more thorough reform.
They object to it, because it still comes short of securing equality
between the parties. The Upper House is more hostile than
before and there is still opportunity for obstruction and delay.
The Conservatives view the measure as an act of destruction,
depriving or threatening to deprive the time-honored Second
Chamber of all its powers and committing the government of
the country to a single-chambered legislature. The reform yet
to be wrought will seek to place the two parties on an equality
in their relation to support from the Second Chamber.
The cabinet system tends to concentrate political power in
one house. The Cabinet is a unit ; it cannot be equally respon-
sible to two houses. In some way they must be made one.
The American system admits of two houses of the legislature,
each elected in the same way, each having equal power. But
organize a cabinet in such a legislature and place in its hands
the responsibility for both lawmaking and law administration,
and there would be trouble. A cabinet cannot both make laws
and govern, unless it has a continuous party majority. The
Australians are trying the experiment of a cabinet system with
two houses each elected by poj>ular vote. Provision is made,
however, for a joint assembly of the two houses in case of
emergency. Canada maintains the cabinet system by making
the second chamber distinctly subordinate and filling it with
appointees who consent to eschew party politics. It is theoreti-
cally possible to construct a second chamber which would do
useful non-partisan revisory work for both parties in matters
* Sec above, p. 463.
502 co:mpar.'\tive free government
of legislation and at the same time furnish to each of them
experienced administrators. The English House of Lords may
be developed in this direction and cease to be a tool of one
party. As nearly as may be its membership will then be divided
between the parties. Such a House might readily make itself
useful in the growing field of cooperative legislation between
the parties. It might be serviceable also as a revisory chamber
for all government bills. To this end, the Second Chamber
should be freed from suspicion of partisan bias. The relation to
the Democracy should be similar to that of the Crown, both be-
coming efficient and active agents in matters of common agree-
ment. Thus differentiated, the House of Commons would
become the one chief agency for the discovery and the formu-
lation of the will of the state on the few questions in respect
to which there is serious diversity of opinion. The ideal of
cabinet government requires that the two parties shall have
equal opportunity to make their wills go. Thus far England
has had no such government.
Merits and Demerits of the Cabinet System. — Dual party
government of the cabinet type is one among many forms for
democratic government. It is the most interesting, the most
spectacular, and withal the simplest. No other form has had
so wide and far-reaching an influence. In the interest of the
great future of free government it is desirable that it should not
be abandoned until its reasonable possibilities have been thor-
oughly tested. Along with the party conflict involving radical
changes in the House of Lords have come propositions which
suggest modifications of the cabinet system. The Tory party
proposes a direct vote of all the electors as a substitute for the
parliamentary vote on the more imjiortant of the controverted
measures. Thus far the system has derived its chief interest
from the fact that the rival parties are the sole agencies for
formulating and adopting i)rojects of legislation in the field of
contentious politics. Forty or fifty men divide themselves into
two rival cami)S. They" line up "and " whip in " their supporters
in Parliament. They seek to extend their organization so as to
include every vote in the United Kingdom. They thus become
two rival schools for the education and training of all the people.
The school is always in session. Its lessons are interesting,
because they [)rofoun(lly affect the well-being of the jjcople.
THE PARTIES IN PARLIAMENT 503
The teachers are the men who both say and do at the same
time. It is the one business of the rival party leaders to keep
the entire nation informed as to what they have done and what
they propose to do, and their position is such as to secure the
maximum of responsibility for every promise made to the public.
Statesmen formulate policies with the intention of winning and
maintaining a majority in the legislature, and if they succeed,
then they must make good their claims, or give place to others.^
The system has also its limitations. It leaves to members
of the legislature little room for independent action. Members
of the Cabinet cannot be independent because they must all
speak and act as one man. Ministers not in the Cabinet are
bound to uphold, vote for, and defend every Government
measure. There may be independence among private members,
but the tendency of the system is to make every member an
unquestioning supporter of his party leaders. Treason against
the party is likely to be followed by political death. As shown
in the next chapter, party leaders control nominations and
the independent candidate finds little place. The voters are
independent, but they are limited in their choice to the two rival
groups of party leaders in whose selection they have no direct
share. As to the securing of desired legislation or the preven-
tion of a detested act, the people must persuade or frighten
the party leaders. This is done by agitation, petition, and
public demonstration.
If the referendum should be adopted, it would furnish an
alternate method of preventing the passage of an act which
the voters did not approve. The House of Lords has served
as a check on one of the parties, often vetoing bills or compelling
an appeal to the country over a party issue, — a sort of indirect
referendum. With the removal of the Lords' veto, the proposi-
tion for a direct referendum appears. This democratic measure
would probably be followed by the popular initiative. In any
event, the cabinet system would be so far set aside or modified.
The Cabinet could no longer carry the full measure of respon-
sibility. There would be at least a divided responsibility and
there would be a division in popular interest. Rival parties
could no longer monopolize political attention. There might
' By means of a coalition Cabinet the system readily adapts itself to a realignment
of parties or to a great emergency whicli oversiiadows contentious politics.
504 C0MPAR.\T1\E FREE GOVERNMENT
in the end be worked out a more satisfactory democratic govern-
ment, but it would not be in the full sense a cabinet government.
Another proposition which comes quite naturally with the
referendum is to deprive the Cabinet of the power to dissolve
Parliament, to have a fixed term, say four years, for the House
of Commons ; this in the interest of independence on the part of
the members. But with a fixed term for Parliament and direct
participation of the people in legislation, party government
would be in a measure set aside.
REFERENCES
(See References, Chap. XXXIX.)
i
CHAPTER XLI
Local Party Organization
English and Americans have ever been preeminent in organi-
zation. English Uberties were first defended and maintained
through the cooperation of the people in counties, cities, and
townships, or parishes, with one or another of the opposing
factions in the king's government. When political parties were
organized in England they focused popular attention upon the
central government. In a sense, the party may be said to have
taken the place of local government. In the meantime Ameri-
cans were laying the foundations for a great federated republic
by the use of counties, cities, and townships transplanted to
the New World. When America became independent, national
parties arose and assumed control of the government. Perma-
nent parties were formed there out of the local party caucuses in
the voting precincts. The organization of the party followed
the order of the organization of the nation : first the town and
city, then the county, the State, and, finally, the federation of
States. The national parties have looked to the local caucus as
the ultimate source of their authority. The series of conven-
tions culminating in the great National Convention, in theory,
speak and act with the authority of the local caucus, or primary.
Every voter is assumed to belong to one of the parties and to
be a member of the local primary of the party whose candidates
he usually supports. The organization is voluntary and sep-
arate from the government. Party conventions speak with the
authority of the people, who nominate candidates, and, by means
of the party platform, dictate the policy of the government.
Candidates are nominated and elected as pledged to carry out
policies formulated by the people's representatives in party
convention.
This is quite unlike the place and work of the party in Eng-
land, where the Cal)inet has always held the supreme party'
505
5o6 COMPARATIVE FREE GOVERNMENT
authority and was in the beginning the sole party organization.
There followed a lining up of party supporters in the Ministry
and in the two houses of Parliament ; but it was a long time
before the organization extended further. While in America
the political party is an agent of the masses of the people for
the purpose of choosing the officials and controlling the govern-
ment, in England the party is the government. Cabinet
government is literally a party in full possession of political
power. It can brook no superior. Outside organizations may
strengthen and support, they cannot control it.
Preliminary Training. — Not until the extension of the
franchise in 1832 did the organized parties include those out-
side of the two Houses of Parliament ; but the people in general
had not lacked training in ways of working together for definite
ends. For centuries they had been developing habits of local
organization for religious, -social, industrial, and political pur-
poses. Long before Whigs and Tories began to contend to-
gether in Parliament, Churchmen and Non-conformists had
parted England into rival religious bodies, and at no time have
these organizations lacked political significance. Both Henry
Vn (1485-1509) and Henry VHI (1509-1547) were upon occa-
sion compelled or induced to forego the collection of taxes voted
by Parliament, on account of the organized opposition of the
taxpayer. Such early training in united resistance to govern-
mental measures prepared the people for more direct and
effective political action. The American colonists were prac-
ticing a very ancient custom of their ancestors when they
organized resistance to the collection of a tax of two pence a
pound on tea in Boston harbor.
Equally significant were certain combined movements among
the English for securing jiositive reforms. Catholics and Non-
conformists each maintained an active, organized propaganda
for the removal of legal restrictions upon their religious beliefs;
and for sixty years before the passage of the first Reform Act
many organizations for the securing of a variety of reforms and
for the promotion of diverse philanthropies were receiving the
attention of large numbers of the people. It is sufilcient to
mention the sustained, (organized, and successful efforts of the
associations for securing the abolition of the slave trade, the
prohibition of slavery in the British lOmpire, and the abolition
LOC.\L PARTY ORGANIZATION 507
of the Corn Laws, — all with a more or less definite political
aspect. Other societies sprang up among the people haxing as
one object among others the gaining of more direct influence
upon the government.
The Birmingham Plan. — Candidates for Parhament have
long been accustomed to employ agents to look after their
elections. With the extension of the franchise the labors of
these functionaries were greath* increased. Rival agents repre-
senting opposing candidates busied themselves in efforts to
secure full registration of the voters and to prevent the opposite
party from gaining the benefit of false registration. During
the period from 1832 to 1867 incipient party organization was
incident to the process of registration and getting out a full
vote at the election, -\fter the passage of the Act of 1867,
organization in both parties was extended and improved in
an effort to secure and retain the support of the newly enfran-
chised laborers. In the city of Birmingham a local caucus was
adopted which ver\' much affected the organization of the
Liberal party. The new law gave to Birmingham the right to
elect three members of the House of Commons on a general
ticket, each voter being limited to two votes. Those two
votes might both be given to one candidate or one to each of
two candidates. The intention was to elect one member from
the minority party. But the Liberal party managers found it
possible so to distribute the votes of their supporters in the
nineteen different wards as to elect all three of their candidates.
To accomplish this the voters were enrolled under pledge to act
as directed by the Central Council of the party. By this method
the Liberals elected the three members of Parhament and also
nearly all the members of the City Council.
The National Liberal Federation. — The Birmingham Liberal
Association was simplified and perfected in 1S73 under the as-
tute leadership of a young manufacturer, Mr. Joseph Chamber-
^lain. It was Mr. Chamberlain's ambition to extend the Bir-
mingham plan of local party organization throughout the king-
dom and to unite all local organizations in a National Liberal
Federation. That organization was effected in 1S77 with Mr.
Chamberlain as its first president. To this position he was
annually reelected until he became a member of the Gladstone
Cabinet in 188 1. He had previously entered Parhament as an
5o8 COMPARATIVE FREE GOVERNMENT
already recognized national party leader. As a cabinet officer
he soon became a promising candidate for the first place in the
Government.
The Chamberlain plan involved the enrollment of all the
supporters of the Liberal party in local associations united by
a series of committees and councils into one representative body
capable of giving authoritative expression to the party senti-
ment. The Federation was expected to assist in finding candi-
dates for office and in carrying election, but its primary object
was to serve as a school of national politics, to propagate liberal
principles, to discover the subjects demanding the immediate
action of Parliament and thus to guide the conduct of parliamen-
tary leaders. It was, in effect, designed as a sort of second
parliament to enable the democracy to formulate and express
its views. Mr. Chamberlain was accused of an attempt to
Americanize the English party, to build up a machine nominally
based upon local democratic caucuses but really playing into
the hands of the party manipulator.
Chamberlain Deposed. — The test of the machine came in
1886, when Gladstone espoused the cause of Home Rule for
Ireland and Chamberlain refused to follow his party leader.
A special meeting of the Council of the National Liberal Fed-
eration was called to give utterance to the sentiment of the party
on that question. In the vote taken at a full and rci)resentative
meeting the Chamberlain faction was overwhelmingly defeated
and the Gladstone ministry was sustained. Hitherto the
Federation had been closely associated with one man and one
city. Organized at Birmingham, the central office had remained
in that city, and Mr. Chamberlain had been its chief sponsor.
Immediately upon his defeat he withdrew from the Federation
and proceeded to organize a National Liberal-Unionist party
on the same general model, with the central offices in London.
The new organization was ra|)idly extended. As the recently
enfranchised agricultural laborers liad furnished a large and,
fruitful field for Liberal organization, it now appeared as one of
the ironies of political life that tlie Liberal ])arty should find its
chief weapon of clcfense in the system devised and ])erfecte(l by
its most influential opponent and former leader.
F^or many years the National Liberal Federation was inspired
by, and is still influenced by the Chamberlain idea of a separate
LOCAL PARTY ORGANIZATION 509
and independent organ lo formulate and express party opinion.
Its annual meetings became occasions for adopting resolutions
on a great variety of subjects after the manner of American
national party conventions. All the good doctrines previously
accepted were reaffirmed and others were added. Finally, at
a meeting held at Newcastle in 1891, a definite " platform " of
great length was adopted and Gladstone's Annual Address ex-
pounded its various " planks." All this could take place
without apparent injury to the party, so long as the Liberals
were out of office. But within a few months a cabinet crisis
placed them again in power and their responsible statesmen were
confronted with the obligation of giving answer to demands for
the fulfillment of the " Newcastle Program." The thing was
clearly impossible ; and the fact that an apparently responsible
party organization had adopted such a platform became a source
of embarrassment and weakness to the Government.
It must be remembered that the British Cabinet cannot re-
ceive dictation from an outside party organization. The
Cabinet forms its own platform in the a,ctual tug of war with
its opponents in the House of Commons.
A problem was thus presented to the Liberal leaders : how to
preserve all that was helpful in the National Liberal Federation
and at the same time to prevent embarrassing interference.
This has been accomplished by modifications of the rules and
changes in the central offices. The constitution of the Federa-
tion under the new order consists of an Executive Committee,
a General Committee, and a Council. The Executive Committee
is composed of the officers of the Federation and not more than
twenty other members. This small body of leaders manages
the business of the Federation. The General Committee
appoints from its own number the Executive Committee and
is itself composed of numerous representatives from local
associations and all the Liberal members of Parliament. It has
few duties as a committee, but serves as a connecting link
between the Executive Committee and the local organizations.
The Council includes all the members of the two Committees
with additional delegates from local associations. It is the all-
inclusive Central organization.' The new rules exclude from
the representative General Council discussion or voting upon
' "Liberal Year Book," 1912.
5IO CO]\irAFL\TIVE FREE GO\ERNMEXT
any matters not presented by the General Committee. This
committee, consisting of more than a thousand members, is
entirely too large for deliberative purposes. It has been found
useful in extending the local organizations to all parts of the
country in the work of publishing and distributing party lit-
erature and in gathering information on the trend of public
sentiment on all public questions. In its meetings there is much
greater freedom than in those of the more popular Council.
But the real sifting out of the subjects to be presented to the
Council is left to an Executive Committee, consisting of the
five officers of the Federation and twenty members elected each
year by the General Committee. This small committee of
twenty-five is the important factor in harmonizing the caucus
and the Cabinet. The committee arranges that the caucus
representatives in council shall act only on such matters as
shall encourage and strengthen the party in Parliament. The
annual meeting of the Council is called to ratify and approve,
but not to oppose the program of the leaders. The entire
machinery, however, is fitted to furnish useful guidance to the
leaders in the preparation of their program. Still a show of
independence is maintained. A rule forbids the election of a
member of Parliament to the Executive Committee of the
P'ederation, and it is good liberal politics to assert that the par-
liamentary whips never seek to influence the committee. This
actual subservience of the Liberal party to its parliamentary
leaders is contrasted with the i^lace of the Executive Committee
in the national Conservative organization which is presided over
by the Chief parliamentary Whip. In practice, however, the
same result is attained.
Superior Organization of the Conservative Party. — The
Tory party has always been more homogeneous and better
organized than its opponent. The local magistrates who ruled
the counties were its supporters. The squire and the parson
were relied u[)on to send Tory members to Parhamenl. When
the right of suffrage was limited lo few, members were often
chosen by nomination withoul \hv form of an election. In
case of a contested eleclimi ihc candidates employed agents
to conduct their campaign.
The Agents who serxed members of the House of Commons
by looking after their interests in elections and seeking to keep
LOCAL PARTY ORGANIZATION 511
their chiefs in touch with their supporters furnished the nucleus
for the first form of party organization outside of ParHament.
Tlie employment of such agents was at first temporary — for
the conduct of a single campaign ; but as the number of voters
increased the service became permanent. The agents became
a class of professional politicians devoting their lives to the
service of their party. They receive small return for their
useful labors — salaries ranging from a few hundreds of dollars
to two thousand — and are wholly devoid of personal ambition
for governmental office. Professing no political opinions of
their own, they become highly skilled observers of the opinions
and sentiments of others. They receive without question the
doctrines of the party leaders ; they distribute party literature
and arrange meetings for party lectures or campaign speeches ;
they keep an open eye for all means of conciliating voters or
strengthening the party in their district and they organize and
direct the work of the voluntary, unpaid local party workers.
When the time comes for enrolling all party supporters in local
caucuses or associations, the said agents in the Conservative
party simply add this duty to their regular work.
The Conservative National Union. — When in 1867 the
franchise was extended to laborers in industrial centers, the
Conservative party was already prepared to enroll the new
voters in local associations. Delegates from fifty-five constit-
uencies met and promptly organized the Conservative National
Union ten years before Mr. Chamberlain effected that of the
National Liberal Federation at Birmingham. So, when the
Radicals were only beginning to organize the local caucus, the
Tories were already perfecting a national party union of local
associations, growing out of and in close affiliation with the
older central organization of the party in Parhament.
Organization in Parliament. — Before the organization of
national unions or federations parties were organized in Parlia-
ment. Whips had been employed to secure the continued adher-
ence of the other party members in Parliament. A Central
Office was early established in each party to facilitate the
cooperation of the leaders and the Whips. The working of
this central office in its relation to Parliament has been described,
but its relation to the public is equally important. It is the
high mission of the Chief Whip to gain for his party continuous
512 COMPARATIVE FREE GOVERNMENT
public support. He is the custodian and distributer of party
funds, and his advice goes far in the bestowal of honors or office.
The central office is a meeting place for candidates seeking
constituencies and for constituencies seeking candidates. It
gives direction to local agents in matters of registration and the
canvass of the voters, and the agents employed by the members
of the House of Commons are thus brought into close relation
to the office. Local agents who have distinguished themselves
in organizing campaigns and in carrying elections in one dis-
trict are employed to assist in other districts. Finally, a Chief
Agent was selected to act with the Chief Whip in the Central
Office. It thus becomes possible to include in one central organ-
ization all the supporters of the party. Paid local agents were
accustomed to extend as far as possible the spirit and practice
of voluntary cooperation, and under their guidance local associ-
ations grew up which furnished the basis for national organiza-
tion.- The Conservative National Union arose from an effort
of the Central office to enroll the new voters as party members.
The delegates composing the Union assembled, not to express
opinions, which might embarrass the party leaders, but to
educate and train the adherents of the party and to devise more
effective agencies for extending its influence. As one of the
founders expressed it, " The Union had been organized rather
as what he might call a handmaid to the party, than to usurp
the functions of party leadership." ^ With one exception, to be
described later, the Conservative National Union has been
kept in strict subordination to the Central Office of parliamentary
leaders. The permanent secretary of the Union has usually
been at the same time the Chief Agent of the party. The
agents are subject to the Whips and the Whips are the servants
of the leaders. Neither the Whips nor the agents have a right
to promote their own private opinions. It is tlu-ir duty to give
effect to cabinet policies as expressed by llie Prime Minister
or the official leaders.
Contrast between Caucus and Central Office. The Birming-
ham Caucus embodied a radically different idea. It was or-
ganized with the intention of promoting free and independent
discussion of party policies and of giving, in the National Coun-
cil of Delegates, an authoritative expression of party opinions.
' Lowell, "The Government of England," Vol. I, p. 537.
LOCAL PARTY ORGANIZATION 513
The Liberal party already had a Central Office similar to that
of the Tory party. The Caucus was therefore in a sense a
rival to the older organization. Through the office of the
Chief Whip, assisted by the agents of the party, the leaders
were already kept in constant touch with the constituencies.
It was the duty of the local agents to inform the leaders of the
trend of public opinion. From such a source the leaders could
receive guidance free from the implication of dictation. But
the caucus proposed to dictate policies and thus became not
only a rival, but a discordant organization. By long process
of adjustment, the discord has been removed in the National
Liberal Federation, and, like the Conservative National Union,
it has become a mere handmaid to the Central Office of par-
liamentary leaders. In both parties the Chief Whip remains
the head of the party organization in Parliament and in the
voting precincts.
An episode in the history of the Tory party throws added
light on the relation of the central parhamentary organization
to the National Union. In 1883 the National Liberal Federation
with its popular local caucuses was apparently giving strength
and efficiency to the Liberal party. By means of the organization
Mr. Chamberlain was being rapidly advanced to the first place
in the leadership of his party. There was discontent in the Tory
party because their National Union was kept under the control
of the Central Office of leaders. Whips, and paid agents. This
condition furnished the opportunity for the promotion of Lord
Randolph Churchill to a leading place in the Tory Cabinet.
He gained partial control of the Conservative National Union
and proceeded to infuse into it the spirit and purpose of the
Birmingham Caucus. This led to an acute conflict with the
leaders of his own party over the question of the relation of the
Union to the older parliamentary organization. Lord Randolph
was defeated in his attempt to transfer party control to the
National Union, but, like Mr. Chamberlain, he gained a per-
sonal triumph by securing a place in the Cabinet.
This incident furnishes additional proof in support of the
proposition that the Cabinet itself is the sole authoritative party
organization. The Whips are the servants of the Cabinet. The
Chief Whip in each party organizes and directs the paid agents
of the party. Through the use of the whips and the agents the
514 COMPAR.\TIVE FREE GOVERNMENT
leaders may extend the organization so as to include as members
of local clubs or associations all party supporters. The local
associations may be induced to send delegates to the National
Union or the Council to receive instruction from the party
leaders, to ratify the policies adopted, to furnish inspiration
and party enthusiasm ; but thus far the experience in both
parties seems to prove that the national organization cannot
dictate party policy. As long as the Cabinet is the Government
it cannot be subject to an external organization. Except dur-
ing the two years of Lord Randolph Churchill's ascendancy, the
Conservative party organization has been under the control of
the Central Office of which the Chief Whip is ex officio chairman.
The Liberal party became locally organized on a contradictory
principle, and has attained harmony and efficiency by eliminat-
ing the idea of caucus dictation to party leaders.
The local organizations in so far as they work in harmony
with the agents and the Chief Whip are a source of great strength
to the leaders. While they may not dictate a policy, they do
greatly aid in furnishing information and in extending the field
of parliamentary debate. Millions of party members acquire
the habit of following the debates in Parliament. They be-
come educated in respect to public questions, and competent
to furnish useful guidance to the party leaders.
English and American Party Methods. — ^A few words by
way of comparison of campaign methods in England and the
United States may well be added. The Americans know in
advance the date of the campaign, which comes at the end of a
four-year period. An entire year is devoted to special prepa-
ration for the event. The intervening three years are designated
as " ofT years " in politics. Political interest is made intermit-
tent by fixed rule. 'Ihe people become accustomed to alternate
periods of relaxation and stress. The iMiglish have no such
periods of rest from party anxiety. The campaign may be
delayed for five years, and it may occur on any day. Immedi-
ately following the organization of a newly elected House of
Commons the defeated ])arty begins the preparations for
another a[)peal to the |)coi)lc. Parly platforms are all the time
in [)rocess of ex'olulion in ilic House of Commons. By-elections
arc of frequent occurrence and party leaders make much of
these as indicating the trend of public o|)ini()n. The English
live in an atmos])here of political agitation.
LOCAL PARTY ORGANIZATION 515
Another contrast in campaign methods arises from the fact
that in the one government political power is centrahzed, while
in the other it is diffused. From the nature of their government
the English have the shortest possible ballot. The voter ex-
hausts his possibilities for the election of his rulers by casting
a vote for one member of the House of Commons. No other
officers are chosen at a Parliamentary Election. The electors
choose the members of the House in separate districts and the
House governs the country. Interest in the campaign is thus
concentrated upon the party candidates in the various districts.
In America party interests are diffused among numerous state
and national candidates to be voted for at a single election.
Americans extend the active campaign over four or five months.
In England it is Umited to a few weeks, though party machinery
is always kept in order and the campaign may be said to be
continuous. When the dissolution of Parliament actually
occurs, the closely contested districts which are relied upon to
determine the pohtics of the House of Commons are subjected
to a few days of most active and intense campaigning.
REFERENCES
Ogg. The Governments of Europe, Chap. VII.
OsTROGORSKi. Democracy and the Organization of Political Parties, Vol.
I, Parts II-III.
Report of the Annual Conference of the Labor Party.
RosEBERY. Life of Lord Randolph Churchill.
Trevelyan. England in the Age of Walpole.
Walpole. History of England from 181 5.
Watson. The National Liberal Federation from its Commencement to the
General Election of igo6.
CHAPTER XLII
Religion and the Church
In the foregoing discussion frequent references have been
made to reUgion and to church organizations. ReHgious con-
troversy was a cardinal factor in the origin of parties, and it
remains a subject of great importance in present-day party
conflicts. It is not possible to understand the government of
England without a knowledge of the part of the Church in its
historical development. The few facts here recorded are in-
tended to throw light on the present relation of the Church
to the government.
Before the state was centrally organized, England possessed
a centrally organized Church, with the Archbishop of Canter-
bury at its head.^ In a way it furnished the model and was
itself a chief agency in effecting a union of the petty kingdoms
into one united state. Many of the early statesmen were
bishops and other church dignitaries who cooperated with the
West Saxon rulers to promote that union. Church and state
became and remained fused together as one government until
after the Norman Conquest in 1066. The higher clergy were
by right or by custom members of the King's Council. The
bishop sat with the earl as presiding officer in the County
Court. In the lower courts of the hundred and the vil, or
townshij), church affairs were administered along with other
local Ijusiness.
Relations of Church and State. — A radical change was
therefore effected when William (he Conqueror separated the
church courts from the secular courts, eliminated the bishops
from c(junty courts, relegated matters of rtligion formerly
adjudicated in county and hundred courts to the hands of the
bishops and lower clergy. One apparent object of the king in
separating church courts from .secular courts was that he might
' Wakcman, "History of the Clnirch of ICngland," Chaps. I-III.
S16
RELIGION AND THE CHURCH 517
gain more complete control over both, that he might use both as
a weapon against the nobility. Later changes, as has been
pointed out, completely effaced the functions of the hun-
dred. The township remained as an important local insti-
tution; though, because of the fact that much of the secular
business passed into the hands of local magistrates and the
county court, the term " Parish," which had been used to
denote the rehgious functions of the township, gradually dis-
placed the older term. But in the parish there has never been
a complete separation of rehgious from secular affairs.
England was at the time a part of western Christendom of
which the Pope of Rome was the recognized head. The popes
habitually asserted a larger measure of authority over the sub-
jects of kings and emperors than these were willing to concede.
Separate church courts in England might readily have been made
a tool in the hands of the popes for encroaching upon the king's
authority. This was guarded against in many ways. The
kings for the most part maintained the chief control over church
appointments. They carefully examined all communications
between the Pope and the national Church. WiUiam I (1066-
1087) and Henry 11 (1154-1189) asserted supreme rights over
all questions of appeal from the bishops' court in England to
the See of Rome. Carried to its logical conclusion, this systerri
would have given the King in Council full power over the
English clergy. To avoid this result Becket, the Archbishop
of Canterbury, resisted Henry II to the death. The duel be-
tween King and Archbishop was a drawn battle. The church
courts retained a modicum of independent power and the
popes a limited right of interference in English affairs, but by
far the greater authority over the Church remained with the
King in Council.
No detailed account can be given here of the part which the
Church has played in the conflicts which have led to the modern
Constitution. During the earlier part of the four hundred
years of strife between king and armed nobility, the Church
at times held the balance of power. Throughout the disputed
reign of Stephen and Matilda (1135-1154) the Church was a
dominating factor in the government. The strife which led to
the exacting of Magna Charta from King John began with a
dispute among the King, the Pope, and the English clergy over
5i8 COMPARATR-E FREE GO\^RNMENT
the election of the Archbishop of Canterbury. Finally, when
King and Pope united their forces, the English clergy, cooper-
ating with the armed nobility, controlled the situation. Again,
when Henry III (i 216-1272) fell under the influence of the Pope
and the foreign faction of nobles, the English clergy united
with the home faction of the barons and exacted from the King
the Provisions of Oxford, in 1258.
But the ordinary relation between bishops and barons was
that of rivalry, jealousy, and hostility. The king usually con-
manded the support of the higher clergy against the great lords.
After the reign of Edward I (i 272-1307) a distinct decline in the
independent power of the bishops followed. Such power as
they had was usually at the disposal of the king. The Church
was becoming rich, timid, and corrupt. The great Wyclif
revival during the last half of the fourteenth century had the
effect to weaken still further the clerical power. The religion
of the masses became pitted against the ecclesiastical organ-
ization. Henry VH (1485-1509) found the Church a con-
venient tool to employ in accomplishing the complete subju-
gation of the feudal nobility. Henry VHI (1509-1540) took
advantage of the great Protestant uprising to advance the
Crown to the position of chief authority in the Church. Arbi-
trary courts were created to displace papal dominance. Re-
ligious houses were destroyed and their property confiscated.
The transition from Roman Catholicism to Protestantism
was thus accompanied by a transfer of the enormous property
endowment of the Church to the Crown, but no step was taken
towards disestablishment. In fact. Church and state in the
higher organization of the Government became more closely
fused together. In law, as well as in fact, the powers previously
claimed by the Pope now belonged to the King, and the monarch
became the head of the Church. The King in Parliament was
made the supreme lawmaking jwwer in all matters of religious
belief and church discipline, while the King's Privy Council
became and remained the highest court of appeal in the admin-
istration of church affairs. The great revival of religion which
accompanied the advent of Protestantism tended greatly to
magnify the importance of the Church. The support of bishops
and clergy counted for much in (he government. Had it been
possible to attain a united and harmonious church with all
RELIGION AND THE CHURCH 519
powers centering in the Crown, its position would have been
invuhierablc. But just when Henry VIII had secured for the
Crown a maximum of power the country became permanently
divided on questions of religion. The chapter on the rise of
political parties shows that at first Catholics and Protestants
contended for supremacy. No sooner had Protestants gained
ascendancy than a Puritan party arose within their own body
to dispute with the monarch the control of the Church. So
fierce was this struggle of the Puritan Revolution that in its
course both a king and an archbishop were executed by act of
a Puritan Parliament. When monarchy was again restored,
in 1660, it was with a permanently divided Church. Half the
people were dissenters, or non-conformists. An effort on the
part of James II to revive Catholicism led to a temporary co-
operation between dissenters and churchmen whereby the
Catholic dynasty was rejected and two Protestant monarchs
were introduced from the Continent.
The effect of the cooperation between dissenters and bishops
first in the exclusion of James II and the calling of William and
Mary to the throne and later in the passing of the crown to
George I, was greatly to diminish the violence of religious con-
troversy. The division remained, but never again did either
party presume to destroy the other by force.
Church Organization and Disestablishment. — The organ-
ization of the Church to-day and its relation to the government
can be understood only by reference to the remote facts in its
history. There are two archbishops. One is the Archbishop
of Canterbury who has the title of " Primate of all England " ;
the other is the Archbishop of York who is " Primate of Eng-
land." This arises from the fact that pagan England was con-
verted by two groups of missionaries, one from Ireland, working
in the north, and the other group sent directly from Rome and
beginning work at Canterbury. In the final adjustment be-
tween these competing authorities two archbishops were recog-
nized with two convocations, or synods, which remain to the
present day. The synod of York is but a feeble transcript of
the chief convocation of the South. As to the time and the
manner of organization of the Convocation of Canterbury
historians are not informed. It was an institution of importance
as early as the time of Edward I (i 272-1307).
520 COMPARATIVE FREE GOVERNMENT
The Convocation consists of two houses, an upper house of
bishops and a lower house made up of the deans and canons of the
cathedrals, archdeacons, and proctors. The two houses transact
part of their business in joint session. Convocation is the chief
legislative assembly of the Church, although at the present day
it has no really independent powers. It meets at the call of
the Crown ; takes action upon such subjects as the Crown
suggests, and its acts become valid as a part of the law of the
land only by the approval of Parliament. The Prayer Book of
1549 was formulated by a Church Commission and was then
adopted by Parliament. In like manner were enacted the
Thirty-Nine Articles of 1571 and the revised Prayer Book of
166 1. Parliament is the real lawmaking body for the Church
as for the nation. The clergy are without independent power
either in matters of belief or of discipline. Should the Church
be disestablished, the bishops would leave the House of Lords
and the Church synods would come into complete control of
church government. For this reason some of the clergy favor
disestablishment.
Another change also would come with disestablishment which
would be very generally approved by the clergy. The church
courts to-day have little elTective power or influence. They
are subject to the secular courts and all appeals of important
matters go to the Privy Council whose members may be non-
Churchmen. After disestablishment all questions would be
decided according to rules adojjted by the Church and officers
of its own choosing.
The important offices of the Church are now filled upon the
recommendation of persons who are or may be non-Churchmen.
Bishojjs and deans are apj)()inted by the Crown upon the recom-
mendation of the Prime Minister. Many of the canons are also
thus chosen. The rectors, vicars, and perpetual curates are in
large part appointed by the Lord High Chancellor, and others
by [)rivate j)ersons who have by law the right to recommend
for church office. These aflvowsons, or rights to present to
church livings, are in law private j)roperty and may pass by
inheritance or by contract as other j)roperty. " They may pass
into the hands of Dissenters, Jews, Turks, infidels and heretics,
who can nevertheless present to the living." ' Such a system
' Lowell, "The tJovernmeiil of Kngland," Vol. II, p. j66.
RELIGION AND THE CHURCH 52 1
would never be tolerated except for the fact that it is an in-
heritance from the middle ages. Disestablishment would surely
give to the church the right to select its own religious leaders.
Why, then, does the great body of Churchmen resist disestab-
lishment? The prestige of the name, "state Church," is a
factor of importance. Crown and Church are linked together
in the glorious past. The state Church still maintains the
fiction that all the inhabitants of a parish who have escaped
formal excommunication are ever and always members of the
Church with a right to its ministrations. To sever the Church
from the state would destroy this fiction. The Church in
England, like the Episcopal Church in the United States and
Canada, would become one among numerous religious sects.
Perhaps a more important reason for continuing the old system
is the question of title to church property. Much property
has already been taken from the Church. Until a recent date
Dissenters were compelled with others to pay taxes for the
support of the Church. It still owns much land from which it
receives the entire rental. From other lands it receives tithes.
Then there are the great cathedrals in which the nation as a
whole, regardless of special church affiliation, lays claim to a
common proprietary interest. These conflicting claims to
property tend to unite the people in the maintenance of the
peculiar and illogical relations of the Church to the state which
are inherited from the past.
In Scotland, Ireland, and Wales quite a different and peculiar
history pertains to the Church. While the English Roman
Catholic Church was becoming the Protestant Episcopal
Church, Scotland was becoming Protestant and Presbyterian
and stoutly resisted the imposition of the English Establish-
ment. In the war between King and Parliament in England
the Scots sided with the Puritans and were an important factor
in the outcome. When Parliament finally triumphed over the
Stuart monarchs in 1688 the state Church as by law established
in Scotland was the Presbyterian organization, and one division
of Presbyterianism is to-day the state Church.
The advent of Protestantism in England coincided with a
bitter conflict between English and Irish. The attempt to
force upon the Irish the use of the new English Prayer Book
tended to make the masses of the Irish people belligerently
522 COMPARATIVE FREE GOVERNMENT
Catholic. Even the English colonists in the north united with
their Celtic neighbors in resistance to the alien form of religion
and were drawn into the Irish Catholic Church. Later impor-
tations of Presbyterians from Scotland and from England served
to renew the old conflict. Religious fanaticism was thus added
to the old race hatreds. Crimes of massacre and rapine were
committed in the name of religion. Stuart monarchs, hard
pressed by their English and Scotch subjects, looked for aid to
Ireland. James II driven from his English throne sought aid
of the French and the Irish to bolster up his power in Ireland.
The Ulster Protestants resisted his army and a decisive battle,
fought July 12, 1690, estabUshed English authority over the
whole of the island. But much of the old bitterness has sur-
vived. The anniversary of the battle of the Boyne is still
observed by an order of Protestant Irish " Orangemen," to
commemorate the triumph of the supporters of William of
Orange over James II. The English Episcopal Church was
forced upon Ireland, as it was upon Scotland.
While the Scots were able to rid themselves of the burden
of a church estaljlishment not in harmony with the national
sentiment, the less fortunate Irish remained restive and re-
fractory under the incubus until relieved by Act of Parliament
in 1868. Since that date there has been no state Church in
Ireland.
The Welsh became loyal sul)jects of the British crown long
before the rise of Protestantism and accepted the change along
with the English. Although in the later subdivision within
the Church the Welsh almost wholly adhered to the Dissenters,
the I">pisc()i)al Establishment was maintained in the province
until llu- \'ear 1914.
REFERENCES
Green. Slmrt Ilhlory of the F.niilisli Prop!,; Chaps. VII, VIIT.
Green. T/ic Mukiuji of /uii^laml, Chu]). VII.
IIu.NT. History of the lini:,lish Cliurdt.
\tu\v\AA.. The Govcrnmrut of England, XI, I, XI, 1 1, XI,11I.
Tkkvki.yan. Engliind (hidrr tlir Stuarts.
Tkkvelyan. Kniiland in tlir Time of Wydijfe.
Wakeman. Tiic Cliurdt of England, kjo.S, Chiips. I-III.
CHAPTER XLIII
The Courts and Local Government
Nearly all the facts here presented appear in former chapters.
They are repeated for purposes of review and especially to show
their relations to the differentiation of the three departments
of government, — legislative, executive, and judicial.
At first there was no differentiation. King's Council and
county and hundred courts attended to all sorts of governmental
business. The separate church courts of Wilham the Conqueror
stand as an important landmark in the separation of judicial
from other functions. A hundred years later further progress
was shown in the system of Henry H (ii 54-1 187), who made
use of two councils, the full assembly of all the notables,
both spiritual and secular, and a smaller body, the curia regis,
through whose agency he administers his government. The
larger assembly is especially associated with important legis-
lation and the smaller with administrative and judicial functions.
The king's quarrel with the archbishop, Thomas a Becket, over
the right of appeal to the Pope of Rome suggests the importanre
of a separate judiciary. Still no sharp line of differentiation of
functions had yet been estabUshed. The monarch through the
smaller council, or curia regis, could issue orders which had the
force of law. The members of the council in county courts
decided cases of law, administered the law of the land, and
granted petitions for changes in local by-laws.
During the next century, a really distinct judiciary was
evolved. Committees of the curia regis became continuously
occupied in discovering and applying the rules of law. One
committee attended especially to finance and taxation ; another
to cases of conflicting rights between citizens; a third to of-
fenses against the crown and those affecting the rights of the
crown. In the system of Edward I (i 272-1307), the old curia
regis is eliminated and in its place are the three courts of com-
523
524 COMPAR.\TIVE FREE GOVERNMENT
mon law, corresponding to the three committees just mentioned,
the court of the Exchequer, the court of Common Pleas, and
the Court of the King's Bench. These are entirely occupied
with judicial business and have become separated from the
king's council.
Origin of an Independent Judiciary. — When the curia regis
thus became transmuted into the common law courts, its place
was taken by another body, which later became known as the
Privy Council. The king in this smaller council, as well as
the king in the greater council, later called Parliament, embodied
all the high powers of government. Each council remained a
supreme court of appeal from the common law courts, while the
lower courts gave legal effect to the customary rules of conduct
found among the people. In cases of injustice the high court of
the King in Parliament or that of the King in Council amended
the law or ordered a different ruling or interpretation. With a
rapidly changing society the rigid rules of the common law
courts caused continuous friction and injustice. So constant
became the appeals to the king to give relief against the common
law rules, that it led to the establishment of a new court of
equity with more summary and less rigid rules of procedure.
Yet the King in Council still remained the highest court of
appeal. There seemed to be no limit to the power of the king to
call into existence new courts to serve his purposes. Henry
VII (1487-1509) by the use of an arbitrary court called the
Slar Chamber humiUated the great lords and enriched his
treasury. Henry VIII (1509-1547) by means of a newly created
court rid himself of an obnoxious wife and made himself the
head of the Church. Charles I (1625-1649) revived the Star
Chamber and called into existence various other high courts
that gave him despotic j)owers in the north of England, in Ire-
land, and over church matters for the United Kingdom. One
of the early acts of the Long Parliament was to compel Charles
I to sign a bill abolishing the Star Chamber and all the arbitrary
courts and denying to the monarch the right to create such
courts. A few years later Charles himself was tried, condemned,
and executed by order of a special court which the House of
Commons had set up. There was no such thing as a permanent
independent judiciary until after the Crown became subjected
to the rule of ParMamonl. James II (1O85-1689) found in the
THE COURTS AND LOCAL GOVERNMENT 525
common law courts his last and most effective tool for royal
tyranny. When these failed him he fled for his life.
The Act of Settlement, of 1701, deprived the monarch of the
power to remove judges from office except upon the petition of
the two houses of Parliament. England has since enjoyed an
independent judiciary removed, for the most part, from partisan
strife. No governmental act is more significant in the trans-
formation of a limited monarchy into a parliamentary monarchy ■
than is this Act of Settlement, which divested the crown of the
privilege of removing judges. This power, passing from the
sovereign to the two houses, carries with it the subjection of the
Executive to the law of the land. It is no longer possible for
the monarch to call judges and jurors to his aid in order to per-
vert the law or prevent its execution. By means of this Act the
judiciary becomes really independent. The judges are no longer
subject to the arbitrary dictation of either the monarch or the
houses of parliament. Parhament, indeed, may at any time
change the law and the courts will enforce the new legislation.
The judges are themselves subject to the law. It is their duty
to apply the law as they find it, assuming no responsibiUty for
its appearance on the statute books. The independence of the
EngUsh judiciary means that the magistrates are entirely sub-
ject to the lawmaking power. In theory, and as far as possible
in fact, the separation is complete. The courts have no right
to change the law.
The ancient fusion of powers is still reflected, however, in the
forms of organization. The complete union of all the govern-
mental forces is personified in the Lord High Chancellor. He is
a member of the various high courts of the realm, and an active
participant in their decisions. At the same time he presides over
the upper house of the legislature and is a member of a party
cabinet. Yet when the chancellor acts as a judicial officer he
rids himself of all partisan bias ; he ceases to think as an execu-
tive or as a lawmaker and, with other judges, seeks simply to
discover and apply the existing law.
In like manner, when the House of Lords acts as the highest
court of appeal for cases arising in the united kingdom of Great
Britain and Ireland, it is not really the lawmaking body which
constitutes the court. The judicial function of the House of
Lords is discharged by the life peers and other members who hold
526 COMPARATIVE FREE GOVERNINIENT
or have held high judicial office. A similar condition prevails in
the Privy Council. Cases arising in the Church courts and all
cases from the Empire outside of Great Britain and Ireland go
to the Council as the court of last appeal. But for such a pur-
pose the Council is made up of a judicial committee consisting
of the Lord High Chancellor and other members of high rank
in the judiciary. These are now, however, courts of law, as
really independent as if they had been newly created and filled
by jurists who have no connection with the other departments of
government.
Union of Legislature and Executive. — While the judiciary
has become separated from the other departments of govern-
ment, the latter have, on the contrary, been more thoroughly
fused together. The Cabinet unites lawmaking and administra-
tion. Parliament makes and amends the laws and at the same
time looks after the details of administration. So complete has
this union of powers become in the central government that the
same policy is carried into the local governments of county and
city. The city council passes ordinances and, through its com-
mittees, also administers them. The English are familiar with
a fusion of the two functions. In local as in general govern-
ment the executive is incorporated with the legislative functions.
Much light is thrown upon the relation of the three depart-
ments of government to one another by a comparison of the
English and American experiences. The Colonies were founded
during the century of conflict between the Crown and the
Parliament for the control of the government, and the current
debate gave marked emphasis to theoretic distinctions between
the three departments, legislative, executive, and judicial.
.Sir Edward Coke, chief justice of England, made an early plea
for the inrlependence of the judiciary. Parliament at the
beginning of the controversy conceded to the Crown executive
responsibility, l)ut claimed for itself a monopoly of the law-
making power. The executive and legislative remained united
because there was discoxccd no [)ractical means of se])aralion.
Separation in the United States. — Statesmen of the Common-
wealth (1649-1660) formulated a definite theory of government
as consisting of three distinct and independent fields of author-
ity. Conditions in America ;it the lime favored the develoj)-
meat of this theory. The colonists were especially devoted to
THE COURTS AND LOCAL GOVERNMENT 527
their own provincial legislatures. These colonial assemblies
were the only institutions which were all their own. In most
cases their chief executive and the judiciary came from England.
When governors and judges administered in good faith the acts
of the colonial legislatures there was peace and harmony ; when
they did not there was friction and warfare. In any event
the three departments of government were separated and con-
trasted. When the Colonies became States, an elected governor
filled the office previously occupied by an appointee from Eng-
land. Later, an elected President was charged with duties cor-
responding to the executive functions of king and cabinet in
England. Both in the States and in the General go-^ernment
the Americans placed executive and legislative business in
separate hands, thus carrying into actual practice the theory of
government which prevailed in England during the century of
colonization.
The result has been that in the United States the executive
has come to be associated with a chief person, President, Gov-
ernor, or Mayor, who is individually responsible for administer-
ing the laws. In England the attempt to separate the powers
failed ; a corporate body, the Cabinet, became the responsible
executive and at the same time the controller of legislation.
Likewise in the English city, the council governs, — the Mayor
is a figurehead.
Local Courts and Local Governments. — The lowest court in
the present English system is that of the Justice of the Peace
in petty sessions. This court is held by one or more justices ;
it initiates processes to be adjudicated in the higher courts and it
has jurisdiction over minor offenses. The justices of the peace
in quarter sessions ^ have jurisdiction over more serious offenses
against the law. Before the creation of the county courts of
1846 the justices of the peace in petty and in quarter sessions had
civil jurisdiction also.
The courts held by these local magistrates, appointed by the
Crown, have had a continuous history for more than five hundred
years. During the thirteenth and fourteenth centuries, while
* As the name implies, this court meets four times a year. It is attended not only
by justices of the peace, but also by grand and lu-tty jurors. It hears appeals from
the justices in petty sessions and tries cases of serious crime. It may not try a case
involving the death penalty.
528 COMPARATR-E FREE GOVERNMENT
the common law courts were being developed out of the king's
smaller Council, while the Great Council was being transformed
into the two houses of Parliament, the business of the local
courts in the counties and in the hundreds was passing into the
hands of local peace officers. In petty and in quarter sessions
the justices of the peace attended to local affairs of all sorts,
judicial, administrative, and legislative. They constituted the
local government in matters financial and secular. Church
matters had been eliminated from the county court, but in the
townships, or parishes, secular and church functions were still
united. Instead of the old town meeting there remained the
parish vestry, participating in the support of the parish church,
the care of the poor, assessments and taxation, and many other
matters which would now be classified as secular.
Local Government Reorganized. — These are the local insti-
tutions that for many years maintained law and order among
the people while kings and lords and bishops were engaged in
acts of strife and threatened revolution. The Squirarchy con-
sisted not alone of country gentlemen in the courts of petty and
quarter sessions, but it included also the priests in the parishes.^
As stated in the chapter on the history of local government the
court of the magistrates maintained possession of the full round
of its powers until the Act of 1888 established a popularly elected
county council which relieved the court of quarter sessions of
nearly all of its legislative and administrative powers. Its
judicial functions still remain.
The parish experienced its first radical change in the .\ct of
1834 creating a new board for the care of the poor. Parishes had
become entirely inadequate to this important function. The act
created larger districts, called Unions, which have little regard
to county lines or other local areas. The administration of the
|)oor laws was placed in the hands of a board of nine members in
each union. Later acts encroached upon the spiritual functions
of the parish. Dissenters were relieved from the requirement to
jjay taxes for the support of the Church, liiially, in i8()4, an
act was [)assed |)r()viding for the election of parisii ct)uncils
whose work is supph mental to that of the county councils. The
counties are thus provided with a complete democratic govern
menl separated both from tin- judiciary and from the Churcli.
' (Tlic I'arsoii and the Squire toiiiijosud tlic .Suuirarthy.)
THE COURTS AND LOCAL GOVERNMENT 529
Popular government was extended to towns and cities much
earlier than to the counties. The first municipal councils act
was passed in 1835. By various amendments to this act the
government of cities has been kept in harmony with the growing
democracy. In some of the towns and cities judicial service
is supplied by the ordinary county courts ; in others by modifica-
tions of quarter sessions or by a substitute recorder's court.
The varieties are so numerous and complex as not to admit of a
general description. The Recorders, who in some cities per-
form the duties of quarter sessions, are salaried judicial officers
chosen like other judges from the profession of barristers.
The effect of these various measures has been to create a sep-
arate and independent local judiciary and to place other local,
secular business in the hands of popularly elected boards or
councils. The local councils are little parliaments, or cabinets ;
all are subject to the great Parliament at London and they are
all supervised in their policy by the Cabinet actijig through the
President of the Local Government Board. Great cities have
already attained a large measure of legislative and administrative
independence. It is to be expected that with prolonged expe-
rience like freedom will come to counties and parishes. But
legally all power rests with the central government ; local boards
are subject to its minute supervision and direction.
The development of modern industry made it impossible for
local magistrates to attend adequately to both civil and criminal
litigation. As stated above, civil cases were assigned to a county
court created by act of Parliament in 1846. These courts are
several hundred in number. They are held by permanent
judges appointed from the barristers. The districts are formed
without reference to county lines. Their courts relieve the old
county court of a large share of its business, but are themselves
county courts only in name. They are rather small debts
courts, whose jurisdiction in ordinary cases is limited to £100,
and in equity cases to £500.
There are thus four sets of judicial officers derived from the
ancient county governments :
1. The Justices of the Peace in petty sessions.
2. The Justices of the Peace in quarter sessions
3. The Recorders in towns and cities, and
4. The Count V Courts of 18/1.6.
530 COMPARATRE FREE GOVERNMENT
The High Courts. — By various acts of reform, beginning in
1873, the courts intervening between the local courts and the
two courts of final appeal have been reorganized and the pro-
cedure simplified. The three common law courts and the court
of equity have been merged into one Supreme Court of Judica-
ture. This court may adopt rules of procedure, but for the trial
of cases it is divided into a Court of Appeals and a High Court of
Justice. The latter is itself divided into a Court of Chancery,
a Court of the King's Bench, and a Court of Admiralty, Probate,
and Divorce. The High Court of Justice, acting through its
three divisions, is a court of general original jurisdiction, and it
also hears appeals from the lower courts. Appeals from the
three divisions of the High Court go to the Court of Appeals
and from this Court the appeal is to the House of Lords. The
House of Lords also hears appeals from the courts of Scotland
and Ireland. As stated above, the Privy Council hears appeals
from the Church courts in England and from the courts of the
Empire outside of Great Britain and Ireland. London has a
system of courts peculiar to itself and in other cities the modifica-
tions are numerous.
All the memljcrs of the House of Lords have a legal right to
participate in the hearing of appeals, but by custom the business
is confined to the Lord High Chancellor, who presides, the life
peers ^ appointed for the purpose, and any other peers who hold
or have held high judicial office. The Court, by recent statute,
is empowered to transact business when the House of Lords is
not in session. Since appeals come to the House of Lords from
Ireland and Scotland, care is taken to secure representatives in
the Court from those countries. Procedure of the Court is
analogous to the ordinary procedure of the Mouse ; the issues are
debated and voted upon, and a majority decides.
The other Court of final appeal, the Judicial Committee of the
Privy Council, is composed for the most part of the Judges who
decide cases of a])peal in the House of Lords. Ikit, since the
Privy Council hears cases aj^pealed from Church courts in
England, and a great variety of cases from the colonies and from
• A part of the measures for reform consisted in addinj.,' to the House of Lords four
Lords of Appeal in Ordinary. These arc made peers for life. The object was to
strengthen the House as a Court for final appeal. Lowell, "The t'lovernment of
England," Vol. II, p. 4O4.
THE COURTS AND LOCAL GOVERNMENT 531
India, the Court is strengthened by representatives from the
Church, from India, and from the colonies. The two supreme
courts are thus composed of a body of English Jurists with a few
members added to meet the special needs of the separate courts.
The Act of 1873 provided for a Supreme Court of Judicature
to which was to be transferred the judicial functions of the
House of Lords and the Privy Council. It was designed to be
the Court of final appeal in place of the House of Lords and the
Privy Council ; but before the Act went into effect it was
amended so as to restore the judicial functions to the older
bodies. The Supreme Court of Judicature, however, remains
as a body of judges having some control over matters of pro-
cedure, but no duties as a court for the trial of cases. The
Supreme Court is divided into two branches — a Court of Appeal
and a High Court of Justice. The High Court of Justice has
three divisions known as the Chancery, the King's Bench, and
the division of Probate, Divorce, and Admiralty.
The Court of Appeals is composed of the Master of the Rolls,
the Presidents of the three divisions of the High Court, and five
Lord Justices appointed for the purpose. Ex-Chancellors may
sit upon the invitation of the Chancellor. All sessions are held in
London, and the court works in sections, three Justices usually
sitting together. The appeals are from the three divisions of the
High Court and in some instances from the lower courts. Until
1907 no appeals were allowed in criminal cases, but a statute
of that year provides for a Court of Criminal Appeal composed
of judges from the Court of the King's Bench.
The Chancery Division of the High Court of Justice is made
up of the Chancellor as President and six other Judges. The
King's Bench Division consists of its President, the Chief Justice
of England, and fourteen other Judges. The Probate, Divorce,
and Admiralty Division is made up of a President and one addi-
tional judge. These arc all divisions of one court, and the
Judges in the various sections may be freely transferred from one
division to another. The object of the system is to simplify
procedure and economize labor. When a single judge from any
one of the divisions holds a court, it is a session of the High
Court. Judges from the King's Bench Division are commis-
sioned to hold courts in the various Counties. On circuit a
single judge acts for the Court. In civil cases doubtful questions
532 COMPARATIVE FREE GOVERNMENT
may be referred to the London Session, where two judges hold
the court. The High Court of Justice is, therefore, simply the
name of a body of Judges who, either singly or in pairs, exercise
general jurisdiction over all matters of litigation, as indicated
by the three parts into which the court is divided.
The following is a list of the Courts :
1. The House of Lords.
2. The Judicial Committee of the Privy Council.
3. The Sui)remc Court of Judicature.
4. The Court of Appeals.
5. The High Court of Justice, composed of
(a) The Chancery Division.
(b) The King's Bench Division.
(c) The Division of Probate, Divorce, and Admiralty.
6. The County Court.
7. The Court of Quarter Sessions.
8. The Justices of the Peace in Petty Sessions.
REFERENCES
Anson. Laiv and Custom of the Constilulion, \'ol. II, Chap. X.
Carter. History of the English Legal Institutions, Fourth Edition, 1910.
HoLDSWORTH. History of English Late.
LowKLL. Government of England, Vol. II, 1908, Chaps. LIX-LXIII.
Maitland. Justice and Police, 1885.
Marriott. English Political Institutions.
Medley. English Constitutional History, 1894, Chu^)s. VIF-VTII.
Ogg. The Governments of Europe, 1914, Chap. VIII.
Poole. The Exchequer in the Twelfth Century,
CHAPTER XLIV
Wales, Scotland, and Ireland
The government thus far described is that of England proper,
both in its history and in the forms of its organization ; yet in
a broader sense the terms used apply to three additional peoples
in whom there is a strong sense of separate nationality. The
four peoples, English, Welsh, Scotch, and Irish, are all of mixed
ancestry. Celtic, Saxon, Danish, Norman, and many other
racial strains mingle in these nations. Common to all the four
races is the fact that they have grown out of conflicts between
natives of the Islands, usually classified as Celtic, with con-
querors from the Continent. The Angles, or English, were one
of the conquering tribes, and the original inhabitants who re-
mained under the direct dominion of the early conquerors all
became English in sentiment as well as in name.
Wales and Scotland. — The Welsh are distinguished from
their brethren who became English, in that they held out longer
against their conquerors. Having kings and princes of their own,
they developed an intense patriotism which expressed itself in
music and song and a high order of literature. Yet they were
finally subdued or were induced to submit to English rule.
They were permitted, however, to retain their own language and
to cultivate their own literature and, to a large extent, to follow
their own local customs. Since 1307 the heir to the English
throne has been called the Prince of Wales. The loyalty of the
Welsh was won by fair and considerate treatment. This was so
thorough and came so early in the national history that on the
political side the fusion was complete. Nearly all laws apply
indifferently to the two countries. Yet the fact remains that
in no other part of the United Kingdom is native race, language,
and literature so well preserved, and local patriotism so intense.
Scotland has a different history. The English conquerors
extended their dominion also to the north. Eor a long time ihey
533
534 COMPARATIVE FREE GOVERNMENT
ruled the country as far as the Firth of Forth. Strenuous
efforts were made to bring the whole of Scotland under English
rule, but lowlands and highlands finally united and established
and maintained an independent kingdom. The union with
England was nominally achieved in 1603 when James VI of
Scotland became James I of England. A hundred years later
the union was perfected, when the Scottish Parliament was dis-
banded and the people accepted representation in the English
Parliament. The Scots retained their own local governments,
their own laws, and system of jurisprudence, which is entirely
different from that of England. They repudiated the English
Church, and ihcy maintained their own system of education.
Representation in Parliament. — Legally, when the Scottish
Parliament became extinct, the people were subject to a gov-
ernment of whose membership their own representatives are a
small minority. To serve in the House of Lords the peerage of
Scotland elects sixteen of their number at each election of the
House of Commons, — a small fraction of the entire membership.
The Allotments Act of 1885 gave to Scotland 72 members in the
House of Commons, to Ireland 103, and to England and Wales
495. Scotland, thus, has 72 out of a total of 670. For a long
time after the union the administration of laws in Scotland was
carried on through the office of the English Home Secretary,
but in 1885 the office of Chief Secretary for Scotland was created
and Scottish administration passerl into his hands. The Chief
Secretary is a member of Parliament and of the ministry, and
is usually a member of the Cabinet. In judicial matters the
union of the two countries carried with it the right of appeal
from the high court of Scotland to the House of Lords. Scottish
jurists arc represented among llu' law Lords.
Scottish Influence in the Government. In outward api)ear-
ance a small count ly thus became subject to a great and powerful
state ; but the actual facts are far otherwise. It is nearer the
truth to say that the small country has dominated the larger
state. Scotland gave to England the Stuart monarchs, and
from the same source came the determining ])ower in saving
England from their despotic rule. The Scots diij not consent to
abandon their own I'arliament until it l)ecanie evident that the
Parliament at London was gaining the mastery over the Crown.
Ill llie British I'arlinnu-nl the Scotch representatives ha\'e, to
WALES, SCOTLAND, AND IRELAND 535
a large extent, maintained control of legislation for Scotland;
they have constituted a sort of parliament within the larger
assembly for the government of their own country. While
effectively resenting the interference of the English in dictating
legislation for Scotland, they have been active and efficient in
making laws for England and for the Empire. In like manner,
in matters of administration they have maintained effective
control over Scotland. Even while they were nominally subject
to the English Home Secretary, Scottish affairs were really
managed by the Lord High Advocate for Scotland, unless, per-
chance, the Home Secretary was himself a Scotsman and pre-
ferred to look after the details of the administration of his own
country. The English have been shut out from local administra-
tion in Scotland while the Scots have secured for themselves a
large proportion of the offices for the government of England.
Wherever the British flag goes Scottish officers go. In politics
and officeholding the Scots are English and lay claim to a share
in all the glories of the Empire. But in local matters they
remain a distinct people and are possessed of a large measure of
local national patriotism.^
The Conquest of Ireland. — The conflicts which led to the
subjugation of Wales and to the independence of Scotland were
already well advanced before the English conquest of Ireland
began. Henry II (11 54-1 189) inaugurated the policy of over-
running parts of that island, confiscating the lands and establish-
ing English colonies upon them. There was then no central
government, the country being held by rival chiefs contending
for the supremacy. The English invaders of Ireland either main-
tained against the natives a brutal and exterminating war or
they became themselves Irishmen. It was comparatively easy
for English armies to overrun the country, but for centuries it
was impossible to govern it. English colonists residing there
often united with the native chiefs to resist the later incursions
of the English. They not infrequently became the most invet-
erate enemies of England. Irish patriotism and the feeling of
nationality was thus not so much a matter of race, language, or
religion as it was a sense of common danger inspired by a power-
ful enemy. Besides the English, the Danes, Normans, and
others from the Continent made incursions. These mingling
' Lowell, " The Government of England," Vol. I, pp. 272, 273.
536 COMPAR.-\TIVE FREE GOVERNMENT
races were gradually amalgamated by a common resistance
to English rule. After numerous conquests and many attempts
to govern the country, P2nglish authority had become generally
recognized at the beginning of the reign of James I in 1603.
To assist in holding the country Puritan and Presbyterian
colonists were settled upon confiscated lands. The bitterness
of religious controversy was added to the old conflict of opposing
nationalities. English common law was being gradually ex-
tended over a people hostile in sentiment and whose local
customs were not adapted to the system. In the name of law
the people were deprived of their lands. Irish estates passed
into the hands of English landlords, many of whom remained in
England, and the country was ruled by a foreign army. Nearly
the whole of Ireland except the newly imported Presbyterians,
who were the direct beneficiaries of the English rule, became
or remained Roman Catholic. The conflicts between Puritan
and Crown in England extended to Ireland. There were brutal
massacres by both parties. The Irish took the side of James II
in his efforts to regain the throne of England. Ulster Protes-
tants fought on the side of William of Orange in the decisive
battle of the Boyne, July 12, i6go. Since that date English
rule over Ireland has not been seriously threatened.
The Character of the English Rule in Ireland. — The Irish
have submitted as unto a foreign ruler. The law, the police,
the church, the schools, were all in the hands of the conquerors.
England won the loyalty of Wales and Scotland by respecting
the preferences of the people. The enmity of Ireland has been
fostered by disregarding the i)references of the people. Until the
rise of democracy in England the masses of the Irish people were
de[)rive(l of all political rights. The wave of democracy which
carried the extension of the franchise in 1832 removed many of
the political disabilities of the Irish Catholics. Thi' further ex-
tension of the franchise in 1S67 was followed by the (Hscstablish-
ment and disendowment of a church whicli for (xnturies had
been forcefl upon the Irish. Later, as the democracy in I^nghmd
has become more self-conscious and more securely dominant,
many abuses of long standing have been removed.
In the meantime the spirit of nationality in Ireland has not
one whil abated. The Irish have never had a king of their own
race. Their cxfcutivc and judiciary have always been viewed as
WALES, SCOTLAND, AND IRELAND 537
alien impositions. The one institution which could be looked
upon as national in its character has been a legislative assembly
which has existed in the island at various times. Irish patriot-
ism has therefore expressed itself in a demand for the restoration
of an Irish legislature.
At the time the last legislature was abolished, 1801, the Irish
peers were permitted to select twenty-eight of their own number
to sit in the House of Lords. The privilege is still continued.
But unlike the Scottish members the Irish peers hold the office
for life and are not reelected for each parliament. To the Irish
was also granted proportionate representation in the House of
Commons. The present number, 103, gives to Ireland some
thirty members more than their just proportion. This arises
in part, however, from a decrease in Irish population.
The Irish executive has been developed out of an army of
occupation. The Lord Lieutenant of Ireland was in the begin-
ning the commander of an alien military force. The police are
only slightly modified English soldiers. The government is
thoroughly military in its form of organization. The laws
passed by the British Parliament have made it easy at any mo-
ment to transform the Irish executive into actual mihtary rule.
The Lord Lieutenant is a member of the English Ministry.
Sometimes he is a member of the Cabinet. His salary of
£20,000 he is expected to expend in the maintenance of a palace
in Dublin. In recent years the Chief Secretary to the Lord
Lieutenant, who is always a member of the House of Commons,
has assumed the chief duties of the office. This has led to the
Chief Secretary's taking the place in the Cabinet formerly held
by the Lord Lieutenant. Note again the contrast with the
Scottish executive, a government from which all English inter-
ference is excluded.
The judicial system is simply the P^nglish system imposed upon
the people by the use of the army. From the highest court in
Ireland the appeal lies to the House of Lords.
During the seventeenth century by the use of the army, by the
use of the courts, by the use of Protestant Irish legislatures,
Irish lands amounting, it is estimated, to one third of the agri-
cultural lands of the island were transferred, without compensa-
tion, from Catholic to Protestant owners.^ This and other acts
• Gardiner, "Students' Histon.- of England," Vol. II, p. 505.
538 COMPARATIVE FREE GOVERNMENT
of like import have given rise to a land question of peculiar
piquancy.
The Governments of Ireland and India Compared. — For
many decades the EngHsh have maintained a government over
a large proportion of the human race in Asia. They are wont
to regard this government as distinguished for its efficiency and
for its success in winning the loyalty of its subjects. During a
like period the government of Ireland has, from the standpoint
of the English rulers, been honest and efficient. To the English
governing classes it has been a matter of surprise that the Irish
do not, like the people of India, show fitting gratitude for such a
government. But there are points in the comparison which
have been entirely overlooked. The English have never tried
to force upon the people of India an ahen religion, a foreign land
system involving a transfer of title from Mohammedans or
Buddhists to Christians. Another point of difference is that
the Irish are not Asiatics. They are in race and lineage not far
removed from the English themselves. The reiterated assertion
that Irish peculiarities demand a peculiar treatment is not well
founded. On the contrary, the Irish are like their neighbors on
the larger island, they have persistently refused to submit
peaceably to a government which they did not approve. They
are, however, j)eculiar in this, that in the maintenance of a
resistance which has given distinction to the Anglo-Saxon race
the Irish have fought a longer and a harder battle. For thus
persevering to the end they deserve and will receive the lasting
gratitude of militant democracy in all lands. When Gladstone
said that Ireland must Ijc governed in harmony with Irish oj)inion,
he gave utterance to a ])rimary a.xiom in the modern view of
government.
Training for Imperial Rule. — The four ill-defined local
nationalities which make up the United Kingdom have been an
important factor in the training of British statesmen for imperial
rule. They make politics interesting. How often a (luestion
arising in a parliamentary debate receives illumination from
each of the four i)arts of the kingflom. Local English politics
become varieri, saved from the dead level of comm()n|)lace
stupidity. When the I'^nglish county council's bill of 1888 was
under discussion, the Irish mcml)ers took an active part, furnish-
ing enlightening details as to Irish local government which pre-
WALES, SCOTLAND, AND IRELAND 539
pared the way for the later extension of a similar measure to Ire-
land. Such experience in comparative government growing out
of the coexistence of four nationalities has had no small share
in training the British for successful imperial rule.
The movement for home rule in Ireland has become asso-
ciated with a plan for the federation of the United Kingdom.
The four nationalities would naturally furnish the basis for such a
federation. Wales and Scotland might each be granted a legis-
lature, and England one or more provincial assemblies. The
government of England would thus be harmonized with those
of the largest of the self-governing dominions, Canada, Australia,
and South Africa, — all federated states. By means of such a
system the imperial Parliament might be relieved from the care
of local legislation, and the central government from the details
of local administration. The democratization of local govern-
ment tends to increase rather than to diminish the demands upon
the central government and such labors might well be passed
over to the governments in the several provinces.
REFERENCES
Brown. History of Scotlatid, Three Vols.
Cambridge Modern History, Vol. XII, Chap. IV.
MORLEY. Life of Gladstone, Vol. II, Book IX, Chap. V, and Book X,
Chaps. I-V.
Tout. Political History of England, Chap. XXXVI.
Lowell. Governtncnl of England, Vol. I, pp. 137-144.
CHAPTER XLV
The Self-governing Dominions
England's contril)ution to free government does not rest
chiefly upon what has taken place within the United Kingdom of
Great Britain and Ireland, but rather upon the extension of
democracy through the process of colonization. Not only have
the independent rej)ublics of the New World arisen from Pmglish
colonization and influence, but there remain three self-govern-
ing dominions, each with a territory almost equal to that of the
United States, still loyal to the British Crown. English colonies
have created the federated form of government now being
rapidly extended upon all the continents.
The Dominion of Canada. — After the United States had
become independent it was only a question of time when Canada
should either become incorporated into that Republic or should
attain for itself a free government. Civil war broke out between
French Catholics and English Protestants in 1837. Some Eng-
lish statesmen then encouraged the policy of union with the
United States; i)ut the Canadians opposed it. The alternate
policy was, flrst, federation between the two disturbed Provinces
of Upper and Lower Canada in 1841, followed in i<S07 by a plan
of federation for the whole of British America. Statesmen from
the four Provinces of New Brunswick, Novia Scotia, Upper and
Lower Canada, the two latter under the new names of Ontario
and Quebec, first formulated the plan of union and secured its
adoj)tion by the English Parliament under the name of the
British Xnrlli American A cl. New provinces have since joined
the Union, an<l the Dominion govermnent now exercises autlior-
ity over the entire country.
In framing their government the Canadians took the United
States as their model. They accepted the principle of division
of powers between the Provinces and the Dominion government ;
but instead of making tlie separate States the possessors of the
540
THE SELF-GOVERNING DOMINIONS 54 1
residuary powers they assigned them to the general government.
The Constitution assigns certain powers to the Provincial legis-
latures, all others being reserved to the government of the
Dominion. Sixteen clauses define the powers of the provinces :
twenty-nine clauses describe those to be exercised by the Parlia-
ment of Canada ; but the reservation is made that this is not to
be so construed as to restrict the general power " to make laws
for the Peace, Order, and good Government of Canada in relation
to all matters not assigned exclusively to the Provinces." As
compared with the United States, the general government has a
much wider range of powers, and, as just said, it is assumed that
the Dominion may exercise any power which has not been ex-
clusively appropriated to the Provinces.
The Canadian Constitution is, in form, an Act of the British
Parliament. It is EngUsh in its phraseology. All executive
power is vested in the King, and is exercised through a Governor-
General appointed by him. All official acts are in the name of
the King. The Governor rules with the advice of a Privy
Council whose members he appoints. No mention is made of a
Prime Minister or a Cabinet ; but in Canada the Privy Council
is the Cabinet and the head of the Council is the Prime Minister.
The Privy Councilors, being members of a ruling Cabinet,
secure and hold office as leaders of the party having a majority
in the Lower House of the legislature. Both in the Dominion
government and in that of the Provinces the English cabinet
system prevails. A Lieutenant-Governor for each Province,
appointed by the Governor- General, is the nominal executive
head. With him is associated a Council, which serves as pro-
vincial Cabinet and is the efficient and responsible government
for the Province. Parties in Canada follow the English model,
using the same names, Liberal and Conservative ; and, although
party issues are different, there is a natural sympathy between
the parties of the same name in the two countries.
The Canadian Parliament is made up of two houses, a Senate
and a House of Commons. The Senate is composed of members
appointed for life by the Governor-General (that is, by the govern-
ment of the day) , and are distributed among the Provinces in three
equal parts, Quebec and Ontario each having the same number.
Qualifications for Senators as to age and residence are the same
as in the United States. There is a substantial property quali-
542 COMPARATn'E FREE GOVERNMENT
fication. Though tenure is for Hfe, the office may be vacated
in various ways, — by resignation, by failure to attend two
consecutive sessions, by becoming bankrupt, or faiUng to main-
tain the required property quahfication. The number of
Senators is less than a hundred.
The House of Commons is composed of more than two hundred
members distributed among the Provinces according to popu-
lation. They are elected by ballot for a term of five years.
The House is subject to dissolution by the Governor- General.
The Lower House is the controlling branch of the legislature.
Not only do money bills originate there, but nearly all important
measures also. It is the forum for political controversy. The
party leaders are in control, as in the English House of Commons.
The Leader of the Opposition receives several thousand dollars
per annum in addition to the regular salary of twenty-five
hundred dollars.
The Senate is a mere revisory body. Its political affiliation
changes as one party or the other controls the government for a
term of years ; but it has been constituted and maintained with
the understanding that it should not obstruct the measures
agreed upon by the popular assembly. The Dominion is there-
fore governed by a Cabinet responsible to and identified with
the House of Commons. Three of the Provinces have but a
single chamber each.
Canadian legislatures, containing as they do under the Cabinet
system the efficient executive, hold a distinctly dominant \)0'=>\-
tion, the judiciary being remanded to a distinctly subordinate
place. Yet the federal system necessitates the coexistence of
distinct grades of legislative authority. The Constitution, or
the British North American Act, is in the place of supreme
authority. Next in order stands the Dominion Parliament,
and then the Provincial legislatures. What is done in case
legislatures in Canada enact laws in violation of the Constitu-
tion? To meet such a contingency the Governor-General; or
the Dominion Government, is given veto power over Provincial
legislatures, and thus unlawful acts are forestalled. The Gov-
ernor may also veto or reserve for the consideration of tlu' Crown
acts of tlie Dominion I'arHamcnl, if he deems iheni to encroach
\x\)o\\ the rights of the IJritish government. But witli two
autliorilies as closely interrelated as are the Provincial and the
THE SELF-GOVERNING DOMINIONS 543
Dominion legislatures, numerous statutes are enacted whose
administration raises the question of infringement upon or over-
lapping of authorities. Such matters come into the courts in
process of litigation, and the Judges may be of the opinion that
an act of a legislature is ultra vires, or not warranted by the Con-
stitution. The Court having final authority to nullify a legis-
lative act is the English Privy Council. Here is seen a resem-
blance to the powers exercised by American Courts in nullifying
acts of the legislature on grounds of unconstitutionality ; but
the similarity is apparent rather' than real. In the American
governments the Courts are given equal authority with the
legislature. That is, a court, as an equal and coordinate branch
of the same government, may nullify an act of the legislature.
This in effect places the court above the legislature. But in
Canada the court of a superior and more comprehensive govern-
ment sets aside an act of an acknowledged inferior government.
It is as if a State court should rule that an ordinance of a sub-
ordinate municipality was ultra vires and void.
At one time the Supreme Court of Canada became affected
with the idea of equality as a coordinate branch of the govern-
ment. The Dominion Parliament passed an act compeUing the
Justices of the Supreme Court to answer questions put to them
by the Governor-General in respect to the constitutionality of a
proposed measure of legislation. The Court held that this law
was an interference with their independence and was, hence,
unconstitutional. The Privy Council sustained the act and
made it very clear that the court was a creature of the legislature
and subject to its laws. The Privy Council has uniformly
maintained the English position of the supremacy of the legis-
lature. Statutes are nuUified only when they create confusion
between interrelated authorities or arc clearly forbidden by the
Constitution. Laws are not declared void because in the opinion
of the Judges they are unjust or confiscatory. The responsibility
for bad laws rests with the legislatures, not with the courts.
It is the duty of the Judges to administer statutes as they find
them, asking no questions as to their wisdom. Judges are not
permitted to enter the field of lawmaking under the guise of
protecting the rights of citizens. Constitutional law in Canada
is public law. Its field is the harmonizing of authorities, leaving
to the legislature the disposal of private rights.
544 COMPAR.\TIVE FREE GOVERNMENT
Canada's judicial system is highly centralized. With the
exception of local magistrates all Judges are appointed for life
by the Governor-General and are subject to removal by petition
from the Dominion Parliament. A uniform system is established
for all the States. Criminal law and procedure are controlled
by the Dominion government. The separate Provinces legislate
upon civil matters, and incidentally penal provisions are attached
to aid in enforcement. Hence a distinction arises between
criminal law and penal law. The same courts administer both
Dominion and Provincial statutes. The Dominion government
may command the services of Provincial officers ; and in some
cases Provincial legislatures rely upon Dominion officers for the
enforcement of their laws. Notwithstanding the close relation
of the two governments, a vigorous and active local and Provin-
cial life is maintained.
With the government thus constituted British America be-
comes in all matters of local concern a great free and self-gov-
erning republic ; only in matters of diplomacy and in foreign
relations are Canadians subject to British authority. Even in
the making of treaties and the adoption of foreign policies, when
Canadian interests are involved Canadian opinion is consulted.
There is intense loyalty to the British Crown because of the
freedom and independence which are secured to the people.
Canadians know that if they should wish to join the United
States or to set up a completely independent repubUc, the British
government would offer no forcible resistance. The relation
between them is entirely voluntary.
New Zealand and Australia. - Before the Canadian Constitu-
tion had been adopted English colonies had been planted in
Australasia and South Africa, and the policy of encouraging
local self-government was everywhere adopted. New Zealand
gaincfl legal recognilion as a colony as early as 1840. In 1907
the term Dominion was substituted for Colony, the change of
name being intended to denote more clearly the independent
position of the stale in its relation to the home government.
For several decades New Zealand has been conducting experi-
ments in government which are of great interest to all free states.
Its present form of government is of the English Cabinet type,
with a legislature of two Chambers, one appointive and the other
chosen by universal suffrage. The people early grappled with
THE SELF-GOVERNING DOMINIONS 545
the problem of the use and disposal of the public domain and
have adopted a policy which aims to forestall monopoly
and secure to large masses of the people the use of land. A
system of taxation was adopted which gave to the public a con-
siderable part of the unearned increment of land values. Sig-
nificant has been the policy of arbitration and conciliation in
disputes between wage-earners and employers. Government
officers interfere by legal right to prevent strikes and other forms
of industrial warfare. New Zealand also introduced the exten-
sion to women of the elective franchise on equal terms with men,
a plan finally adopted in all the Australian States. It is an excel-
lent example of the small state, favorably located, working out
experiments in democracy which are of universal interest.
Australian States have been especially influenced and benefited
by the study of New Zealand's progressive experimentation.
On the first day of the twentieth century the Commonwealth
of Australia was proclaimed. Six States formed the Union and
a seventh was added the following year. Some of these com-
munities had already a history of more than a hundred years.
All were democracies of the New Zealand type. More than a
decade had been consumed in efforts to form a constitution
acceptable to all the States. Not only had the Australians the
guidance of American and Canadian experience, but in the mean-
time Switzerland had become a conspicuous teacher of federated
democracy. The Canadian Constitution of 1867 was drawn
up by statesmen from four Provinces and presented to the
British Parliament without popular sanction. The Australian
Constitution came direct from the hands of the people. All
its provisions had been carefully discussed. Various tentative
forms of union had been abandoned on account of popular dis-
approval. As finally adopted the formal, popular approval
preceded enactment by the British Parliament. Unlike the
British North American Act the Australian Constitution pre-
scribes a method for its own amendment. A majority of the
two Houses of the Legislature may propose an amendment which
becomes valid when approved by a majority of the voters so
distributed as to include a majority of the States. This is an
exact copy of one of the formulas for amending the Swiss Con-
stitution. The people make and amend their own constitution.
The formal enactment by Parliament gives final legal sanction.
546 COMPARATIVE FREE GOVERNMENT
The Constitution of Australia confers certain specified powers
upon the legislature of the Commonwealth and reserves all other
powers to the separate States. This is a reversion to the plan
prescribed in the United States Constitution. The government
is less centralized than is that of Canada, though the list of con-
ferred powers is more ample than that found in the American
Constitution.
The method adopted for maintaining the Cabinet system in
the Commonwealth and in the States through the offices of a
Governor-General, and Lieutenant-Governors for the States, is
practically identical with that of the Canadian Constitution.
The Australians adopted the American names for the separate
Chambers of their legislature, Senate and House of Represent-
atives, and for the two Houses the British name, Parliament.
Both Senators and Representatives are elected by universal
suffrage. Senators are chosen for terms of six years, six from
each State, and the terms are so arranged that half of them are
elected every three years. The term of office for Representatives
is three years and they are distributed to the States according
to population, the whole number to be as nearly as practicable
twice that of the Senate. Control of financial legislation is
vested in the House of Representatives ; but to the Senate is
given coordinate power over all other matters. How can the
caljinet system be made effective with a legislature having two
chambers of equal power ? In the case of Australia it was evi-
dently intended that the life of the Cabinet should depend
chiefly upon the lower House ; but it was conceded that a popu-
larly elected Senate would have unusual power of obstruction.
To overcome a deadlock the Constitution provides that in case
the Senate twice refuses to give assent to a measure passed by
the Representatives, with three months intervening between the
times of refusal, then both Houses may be dissolved and all the
members newly elected. If the newly elected House of Repre-
sentatives still persists in the passage of the bill under dispute,
and if the Senate still refuses assent, then the bill may come
before a joint session of the two Houses. This is a new device
for securing harmony between a Cabinet and a bicameral legis-
lature.
The Constitution as originally framecl ])rovi(le(l for a complete
and independent judicial system, the Supreme Court of the
THE SELF-GOVERNING DOMINIONS 547
Commonwealth being the fmal Court of appeal instead of the
English Privy Council. This feature was modified, however,
so as to permit in exceptional cases an appeal to the Privy
Council. The Australian judiciary remains substantially inde-
pendent of the English judiciary, with some new and interesting
developments resulting in the relation of the judiciary to the
legislature. The Supreme Court of AustraUa is of the same
grade of authority as the Parliament of Australia. It becomes
the duty of the court to rule on questions of the constitutionality
of acts of the Commonwealth Legislature. Acts of the legisla-
ture have been held void as ultra vires. For rendering such deci-
sions the court has been attacked, as being partial or prejudiced.
The mere fact of a transfer of power from the Privy Council to
a local court is having unforeseen effects. The Judiciary is
becoming involved in local partisan politics in a way which
would be impossible had the final interpretation of the Consti-
tution remained with English jurists who were accustomed to
look to legislatures rather than to courts for the righting of
political wrongs. If present tendencies continue in Australia,
it will no longer be in order for publicists to say that the United
States is the only country in the world in which a court of the
same grade of authority with the legislature has the power to
nuUify its acts. It mil be impossible, however, for this policy
to be developed in Australia as it has been in America, because
of the facility for amending the Constitution. As soon as a
serious issue arises between legislature and judiciary there at
once follows a movement for amending the Constitution, and the
court is thus shielded from prolonged and bitter attack.^
Union of South Africa. — The Constitution for the Union of
South Africa was framed in igo8 by a delegate Convention
from the four colonies of Cape Colony, Natal, Transvaal, and
Orange River Colony. In 1909 it was adopted by popular vote
in each colony and was enacted by the British Parliament Sep-
tember 20, 1909. During the following year the Constitution
was carried into effect. Before the Union there had been a
century of rival colonization by Dutch and English, and a war
had occurred, resulting in the Conquest of two Dutch colonies,
1899 to 1902.
'See "The First Decade of the Australian Commonwealth," H. G. Turner,
^lelboume, 1911, p. 188.
548 COMPARATIVE FREE G0VERX:MEXT
The South African Union marks the last and in many respects
the greatest of the triumphs of the British policy of federa-
tion. The submission of the Dutch colonies was immediately
followed by the cooperation of the English authorities in secur-
ing to the Boers complete self-government in their separate
colonies. Hostility disappeared as by magic. The Dutch took
a leading part in the agitation for a more perfect union between
English and Dutch colonies, and General Botha, the Dutch hero
of the Boer War, became the first Prime Minister of the United
state.
Conditions in South Africa call for a strong central govern-
ment. There is a large native population, a shifting body of
miners, and members of various races are found in all the
Colonies. To secure a government capable of dealing with the
numerous perplexing questions arising, the four Colonies were led
to surrender their independent powers and become local prov-
inces in a unified state. Instead of a Lieutenant-Governor and
a Legislature under the cabinet form of government, as in the
case of the Canadian Provinces, there is an Administrator in each
province appointed by the Governor-General of the Union, who
governs with the assistance of an Executive Council and an
elected Legislative Council of not less than twenty-five members.
A number of powers and duties are assigned by the Constitution
to the Provinces, and these may be indefinitely extended at the
discretion of the Central Government. The government is,
therefore, on the borderland between a federated union and a
state divided into provinces wilh a large measure of local
autonomy.
The Union government is of the thorough English cabinet
type. There is a Senate partly elective and partly appointi\e,
with a j)rovision that it may be entirely elective after ten years.
Members of the Lower House, called the House of Assembly,
are elected for a term of five years. To secure unity of action
between Cabinet and legislature the two Houses of Parliament
may be called into joint session, or they may be both dissolved
at the same time, or either House may be dissolved sei)arately.
'I'he |)rovisions for :i judiciary resemble those in Australia,
cxce[)t that in the case of the South African Union the Privy
Council in Ivngland, instead of the local Su[)reme Court, decides
whether a case may be ajjpealcd lo the Privy Council.
THE SELF-GOVERNING DOMINIONS 549
The four Dominions thus described, together with the United
Kingdom of Great Britain and Ireland, constitute a state with a
peculiar type of government possessing federal qualities. In
their relations to the outside world all are united as one state ;
all are subject to the British Government. In respect to matters
local and domestic, the four Dominions are practically independ-
ent. England does not tax them, she does not command their
services in case of war. Whatever aid the Dominions furnish for
the common defense of the Empire is voluntary. The union is
one of good will and mutual loyalty to common interests. The
Governor-General is not sent to the Dominions to govern, he is
sent to enable the Dominions to govern themselves by means of
the English cabinet system.
The spirit which finds expression in the self-governing Do-
minions is being diffused throughout the government of the
British possessions in general. Democracy in England inevi-
tably seeks to provide for the training of the people of India and
the Crown colonies for local autonomy and for ultimate self-
government.
REFERENCES
An Analysis of I lie System of Government Throughout the British Empire,
Macmillan & Co., 191 2, Part II.
Egerton and Grant. Canadian Constitutional Development.
Egerton and Grant. Federation and Unions zi.nl/iin the British Empire.
Keith. Responsible Government in the Dominions, Three Vols., 1912.
Moore. The New Australian Commonwealth.
Todd. Parliamentary Government in the British Colonies.
Tlt^ner, H. G. The First Decade of the Australian Commonwealth.
FRANCE
CHAPTER XLVI
Origin and Nature of the French Constitution
The study of comparative free government begins naturally
with England and the United States, since, historically con-
sidered, they have led the world in the development of democ-
racy and from them have come the two types of organization
most widely adopted. Above all other states they possess the
literature of democracy, and their reaction upon other states
is most significant and most easily observed. These two
governments have, therefore, been described in considerable
detail.
The state next to be examined in the enlargement of the field
of comparison is indicated with equal certainty by the facts of
historx'. It is France that has been from very early times most
intimately associated with the development of the English state
and, later, with that of the United States, and it is not improb-
able that, in the distant future, France may be seen to have
played an equally influential part in determining the ultimate
forms of the free governments of the world.'
The Anglo-Saxons have wrought out their political destiny
under exceptional conditions, and it was to be expected that the
result would be the evolution of qualities not adapted to incor-
|)oration into the governmental forms of states developed under
the quite diverse conditions prevailing upon the European Con-
tinent. Especially is this true of the experience of the United
States with its three hundred years of j)ractically unhindered
and indei)enflent growth upon a virgin continent, exempt from
the perj^lexing [jroblems afllicting the peoples of the Old World.
England's insular position, though furnishing an isolation less
' Munro, " {lovcrnment of European Cities," p. 7.
SSO
THE FRENCH CONSTITUTION — ORIGIN AND NATURE 551
complete, has also proved favorable to the fostering of an inde-
pendent development in consonance with the inborn temper
and instincts of her people, while her nearness to the European
Continent has also proved advantageous in that the enforced
association with other and diflferent peoples has contributed to
the quickening of ideas and the enrichment of thought. France
has worked out her history, her race development, her political
ideas, her power of keen and logical thought, through close con-
nection with the turbulent, ever changing life of the great con-
tinental states about her, and she is uniquely fitted to make
most important contributions to the final forms of world de-
mocracy.
Comparison of France and England. — A superficial view
reveals marked similarity in the histories of France and England.
Both were originally occupied by Celtic peoples; both were
subject for centuries to Roman rule ; both were later conquered
by German tribes and were exposed to incursions and occupation
by the Danes ; and to each the name of a German tribe became
afl&xed. But Britain adopted the language of the invading
Teutonic tribes, while the people of Gaul first accepted that of
their Roman rulers and then taught it to the conquering German
Franks. French is therefore a modified Latin tongue, and
French civilization has been profoundly affected by its intimate
relation to an earlier and powerful political development. It
has most perfectly embodied the dominant tendencies of Western
Europe. Under the Caesars Gallia had become as Roman as
Italy itself and Roman law became and remains the basis of the
French legal system. In France the conquering Teutons
attained their most brilliant successes. There only did the
feudal system reach perfection, and when the time came for
monarchy to triumph over feudalism, its most perfect work was
displayed in France. When, finally, the day of democratic
revolution dawned, in France alone did its unbridled spirit fully
work its will.
Contrast all this with corresponding movements in England.
There conquest by the Roman was only partial, as was that of the
Angles and Saxons who followed. The Norman triumph did
not destroy the earlier institutions, which the new rulers were,
indeed, careful to preserve. The feudal system never entirely
prevailed in the Islands, for neither feudal lords nor kings ever
552 COMPARATIVE FREE GOVERNMENT
completely gained dominion over the people and the ancient
institutions to which they clung. Different ideals in government
and society lived on side by side, each modifying the others and
no one becoming permanently dominant. Democracy came
through a long series of slight adjustments and adaptations, all
in harmony with the steadfast, determined, cautious English
character.
Reciprocal Influence of France, England, and the United States
upon One Another. — The constant influence of France upon
England has been a potent factor in the development of democ-
racy. Norman and Plantagenet kings had large possessions
in France. By defending English local liberties they avoided
in their island kingdom the weakness of the early feudal mon-
archs of France. Factions in England arose through conflict
between French foreigners and native English. It was Philip
Augustus of France as well as the English barons whose pressure
obliged King John to sign Magna Charta. The liberated
peasants of England gained a new sense of importance from
their triumphs over the feudal armies of France, and their per-
sistence hastened the downfall of feudalism in both countries.
French monarchs encouraged and assisted Stuart Kings in their
warfare against Parliament. Fear and distrust of France was
one of the causes leading to the triumph of the Whig party
in the Revolution of 1688, and for two generations British
Toryism was discredited on account of suspicions of French
influence. English religious history was also often modiflcd
by the experiences of her neighbor across the Channel. The
Massacre of St. Bartholomew in 1572 helped to make England
Protestant.
No less significant has been the relation of France to America.
Rival settlements, begun at the same time in North America
by both France and England, led to prolonged ttrrilorial con-
flicts. Fear of France caused England to adopt a liberal policy
toward her American colonies. Wars between France and
England involving intercolonial contests gaxc I he settlers a
trained soldiery. When French authority had been finally
excluded from North America, France aided the English Colonies
in a war for infleiiendence.
Englanfl and America hdvv in I urn exerted ;in inllucnce u|)()ii
France. The victims of liourbon tyranny were encouraged to
THE FRENCH CONSTITUTION — ORIGIN AND NATURE 553
thoughts of resistance by the example of the freer peoples.
Montesquieu, Rousseau, Voltaire, and other French writers gave
precise and logical expression to the theories of freedom en-
gendered by the conflicts between England and her Colonies.
The thoroughness of the autocratic rule under which the French
lived tended to promote thoroughness in their theory of democ-
racy. The time and. effort required to indoctrinate a great
nation with the new teaching gave rise to a profound conviction
of its truthfulness and importance. When the doctrines of the
French philosophers at last found expression in a Declaration
of Independence and in the ibirth of a free nation in America,
the reaction upon France was tremendous. The Revolution
came like a deluge. Its excesses caused a conservative reac-
tion in England : in France it produced Napoleon. As France
helped America to get rid of George III, so England helped
France to get rid of the first Napoleon. Both England and
the United States were active in moderating the pretensions
of the restored Bourbons after 1815. The House of Orleans, in
1830, distinctly recognized the English parliamentary system.
After a succession of revolutions France, having been overrun
by German armies, was left without a government. The Third
Republic was extemporized to meet the emergency. While
some of its features were borrowed from the American Republic,
it is English in its characteristic method of harmonizing the
Executive and the Legislature. England and America are thus
contributors to the shaping of the present French government.
Successive French Constitutions. — The present French
Constitution is the eleventh which has been enacted since the
beginning of the Revolution of 1789.^ The state has more than
fulfilled Thomas Jefferson's ideal of a new constitution every
twenty years. Some of these documents have been reactionary
in certain of their provisions, but all are based upon the consti-
tution and government of the great Revolution. Before that
event, the masses of the people were subject to the arbitrary
personal rule of kings, nobility, and clergy. After that, and
especially after the completion of the civil code of 1804, the
people were protected by laws administered by a fairly just and
independent judiciary. Subsequent constitutions specifically
guaranteed to the people the continued enjoyment of their own
' OgSi " Governments of Europe," Chap. XV, p. 289.
554 COMPARATI\'E FREE GOVERNMENT
local courts of arbitration.' No reactionary government has
presumed to return to the brutalities of personal rule. Another
change, equally significant and permanent, appeared. Before
the Revolution the land, which was in the hands of nobility and
clergy, had become an agency of tyranny and oppression. The
Revolution transferred the land to the proprietorship of the
peasant occupants and no later government has called in ques-
tion the validity of the title.
Other provisions of the original constitution could not be
rendered effective in so short a time. A trained voting constit-
uency cannot be extemporized. Provisions for the exercise of
the right of suffrage were much more liberal than those which
prevailed at the time in England and in the United States ; but
experience was lacking. No one who understands the difficulties
involved will deny that during the past century France has made
phenomenal progress in the development of an intelligent popular
use of the franchise. The statesmen of the Revolution believed
that a state founded upon universal suffrage required universal
free education, but the realization of this ideal in France has
involved a conflict with the established church. Although
delays have been numerous the third Republic is now in process
of realizing universal education and the separation of church
and state.
Centuries of tyranny had effaced from the minds of the people
nearly all memory of local government. To meet the popular
needs for local administration and legislation an elaborate
system of local geographical areas was created. Napoleon
utilized these local areas as administrative districts for the central
government and the Napoleonic system of local government
still survives. France is now apparently engaged in the more
important task of proving that a great state may have a cen-
tralized government and yet become thoroughly democratic.
Already there are signs of the rise of local autonomy, especially
in the communes and cities. With assured democracy in the
central government it is to be exf)ecte(l thai tin- (levelo])mcnl
of local home rule will be rapid.
* The lowest French court is ijresidcd over by a Justice of the Peace 0«J?« <^«
paix) whose first duty is not to hear l.iw suits, but to prevent them by acting as
arbiter in a prdiniiiuiry concilialinn. Many judicial cases are arbitrated by him and
thus settled without coming to trial.
THE FRENCH CONSTITUTION — ORIGIN AND NATURE 555
Respecting the more fundamental part of the constitution,
which pertains to the distribution of the high powers of state and
the attainment of their harmonious working, France has been
subjected to many changes scarcely less notable than those that
have taken place in England and America during the corre-
sponding period. At the time of the French Revolution the
ideas that prevailed in England respecting the relations of the
King to his ministers, of the ministers to one another, of the
ministers jointly and severally to Parliament, of the two Houses
to each other and to King and Cabinet, differed greatly from
those of to-day. Theories as to these relationships have under-
gone radical changes in the course of the century. The American
States were especially fitted by their past training as colonies to
reduce to practice Montesquieu's theory of the division of gov-
ernment into three departments, each composed of separate
officials and all serving as checks one upon another. Having
done this, they naturally applied the same principle to the frame
of the general government. The theory of a separate executive
with independent powers determines the Presidential type of
government. At no time, indeed, has the government been in
entire harmony with the theory of the founders, and the dis-
crepancy increases as the business of governing becomes more
exacting and complex.
Unlike the States of the American Union, France had no past
experience suited to encourage a trial of the system advocated
by French philosophers. It was easy to provide for an assembly
having supreme legislative powers, but it was not easy to har-
monize the working of such a legislature with an independent
executive. King, committees, directory, consuls succeed one
another in rapid succession. Somewhat of fixity was reached
when Napoleon, the First Consul, became Emperor of the
French, in 1804. But in the meantime the legislature had been
so organized that it could not transact business, and both
executive and legislative power were left in the hands of the
Emperor and a Council of State of his own choosing. When
the Bourbons were restored, in 181 5, it was with the distinct
provision that the legislature should be resuscitated, and the
principle recognized that ministers should be responsible to
the legislature. This was made more emphatic under Orlean-
ist rule, from 1830 to 1848.
556 COMPARATIVE FREE GOVERNMENT
Carried along by the great European wave toward free govern-
ment, the French proclaimed the Second RepubUc in 1848.
The new Constitution provided for a single-chambered legisla-
ture elected by universal suffrage and for a President, elected
in the same way. This was distinctly an experiment in the
American Presidential type of government. Louis Napoleon,
the first President, soon made himself master of the state. In
the Constitution which he issued in 1852 the independence of
the Executive is clearly stated. Neither Emperor nor minister
was made responsible to the legislature. But a few years
before his abdication Napoleon III was forced to proclaim anew
the principle of the responsibilit}- of ministers.
Organization of the Third Republic. — The century of ex-
perimenting and constitution-making has been highly educa-
tive, and the Third RepubUc came into existence under condi-
tions favorable to the final union of the people in the support
of a free republic having the English, rather than the American,
form of organization. A single-chambered Assembly was chosen
in 187 1, primarily to make a treaty of peace with Germany.
Although there was an insistent popular demand for a restora-
tion of the Republic, the peculiar conditions existing at the time
of the election gave to the Assembly a large majority of mon-
archists who refused to declare a republic. They did, however,
elect a President as chief executive with power to appoint and
dismiss his ministers. President Thiers himself favored a
repubHc ; but, not having the support of the Assembly, he
resigned after two years. The Assembly elected Marshal
MacMahon, a pronounced monarchist, as his successor. Be-
cause of a division among the monarchists no royal candidate
could command an immediate majority.
Finally, in 1875, the Assembly, which had been elected to
meet a temporary emergency, proceeded to set up a more per-
manent form of government, and adopted a constitution which
is still in force. By this document legislative power is com-
mitted to two houses, a Senate and a Chamber of Deputies.
The Senate at first consisted of three hunrlred members, three
fourths of them chosen by a process of indirect election in the
various Departments, the other fourth being selected by the
Senate itself. This law was afterwards altered so that all Sena-
tors are elected by an indirect process in the Departments. The
THE FRENCH CONSTITUTION — ORIGIN AND NATURE 557
body which chooses the Senators is composed of : members of
the Lower House representing the Departments ; the depart-
mental Council General; the Councils of the Arrondissements
into which the Department is divided ; and Delegates elected
by the Communes.^ All of these various classes are chosen
by universal suffrage. The legislative power of the Senate is
concurrent with that of the Lower House, except as to the in-
troduction of money bills. Only with the consent of the Senate
may the President dissolve the chamber of Deputies.
The Deputies number 602, all elected at one time by univer-
sal suffrage. Their term of ofBce is four years. If a dissolu-
tion should occur, the newly elected assembly would still be
entitled to the full four-year term, barring another dissolution.
Two methods of electing deputies have been made the subject
of much dispute in French politics. The Assembly that pro-
vided for the organization of the Chamber of Deputies in 1875
was itself elected by the voters in the various Departments who
cast their ballots for all the members to which the Department
was entitled. This is called scrutin de liste. It is as if the mem-
bers of the Lower House of the American Congress from each
State were elected on a general ticket. The Constitution of
1875 left the method of electing Deputies to be determined by
law, and the method adopted has been election by single dis-
tricts— called scrutin d'Arrondissemeiil — except between the
years 1884 and 1889, when the other method was followed.
The age requirement for members of the Chamber is 25 years;
for the Senate, 40 years. There is no residence requirement.
Provision is made for the payment of members, and since 1906
the salary in each house has been 15,000 francs.
In the acts for the reorganization of the government (1875)
President MacMahon was left in full possession of his office,
and provision was made for the election of future Presidents by
an absolute majority of votes of all the members of the Senate
and the Chamber of Deputies united in National Assembly.
The term of office was fi.xed at seven years, and the incumbent
was made eligible to reelection.
The President has the initiative in legislation concurrently
with the two Houses. He is without veto power, except that
1 Lowell, "Governments and Parties of Europe," Vol. I, p. 20. For local
government areas see below, pp. 567-569.
558 COMPARATIVE FREE GOVERNMENl'
he may require the two Houses to reconsider a bill. He promul-
gates the laws, superintends their execution, grants pardons,
disposes of the armed forces, and is the ceremonial head of. the
nation. Still, for every official act the name of a minister is
required. The Constitution expressly states that : " The
ministers are jointly and severally responsible to the Chambers
for the general policy of the Government and individually for
their personal acts. The President of the Republic is responsible
in case of high treason only ; " ^ the President may be tried be-
fore the Senate for high treason and the ministers may be ar-
raigned for lighter offenses. The obvious intention of these
provisions is to set up a responsible cabinet government in which
the President instead of a king is the formal head.
It should be remembered that a majority of the framers of
the Constitution of 1875 were monarchists, as was their Presi-
dent also. All that was needed to fulfill their desires was for the
President to give place to the Count of Paris as an Orleanist King.
The first elections under the new Constitution gave to the
republicans a large majority in the Chamber of Deputies, while
in the Senate monarchists and republicans were nearly balanced.
A conflict ensued between the republican Chamljcr and the
monarchist President, the latter, contrary to law, taking an
active part in party politics. In 1877 the Chamber was dis-
solved with the consent of the Senate, and the election follow-
ing returned a still more determined and radical republican
majority. The Senate having become republican also. Presi-
dent MacMahon resigned in 1879, and M. Grevy, a radical
republican, succeeded to the office. All branches of the govern-
ment have since remained in the hands of the republican party.
The Constitution of i<S75 was the result of a compromise be-
tween monarchists and republicans. Each party expected to
carry the election and thus to control the future government.
The monarchists, while incidentally recognizing the existing
rei)ublic, ho[)ed by slight changes to adapt its Constitution to
a monarchy. In either case the government would be in the
hands of a Cabinet of ministers responsible to the legislature.
Of all the French constitutions that of 1875 is the briefest.
Everything is omitted except the bare framework of the execu-
tive and legislative de])artments of government. No refer-
' Law on the Organizaliou of llii- I'uljlic rowers, I'cIj. 25, 1875, Art. 0.
THE FRENCH CONSTITUTION — ORIGIN AND NATURE 559
ence is made to the judiciary. Details are left to be filled in by
the legislature or by the executive. The method of choosing
Senators was, however, described with considerable particu-
larity ; yet, by an amendment of 1884, it was declared that this
part of the act should cease to have constitutional force, thus
leaving the legislature in lull control of the matter. Amend-
ments have been added to insure the permanence of the Re-
public. All members of the families that have reigned in France
are excluded from office, and the Constitution, as changed,
makes it illegal to propose an amendment to restore the mon-
archy.^
The method of amending provided for in the Constitution of
1875 requires each House, by majority of all its members, to
vote that a change in the constitution is desirable. Then the
two Houses must meet in joint session as a National Assembly
and act upon the proposed changes. Amendments to the
Constitution are thus secured by a modified process of legisla-
tive action. No popular ratification is required. Only twice
has the National Assembly been called to consider changes in
the Constitution. Except the acts referred to above, the
changes are of minor consequence. Although the Constitution
is written, although it is solemnly enacted law, there is no means
of enforcement other than an appeal to public opinion or to the
agencies relied upon for enforcing the ordinary statutes. Pres-
ident Poincare expresses the conviction that if a National
Assembly should pass an act restoring the monarchy, it would i)e
the duty of the President to refuse to promulgate it ; yet he
qualifies the statement by the observation that the strength of
the Republic rests with pubHc opinion rather than in constitu-
tional prohibition.^
French, English, and American Constitutions. — A few words
on the nature of the French Constitution as compared with those
of England and of America are in order here. It is contrary
to the genius of the French people to permit any custom, or
understanding, or usage, either to obscure the law or to usurp
the place of law. French courts are not permitted to interpret
or apply the law according to a previous decision of the same or
of another court. Each court, at the time of action, is required
1 Lowell, " Governments and Parties in Continental Europe," Vol. I, p. 12.
' Poincar6, "How France is Governed," p. i6j.
560 COMPARATIVE FREE GOVERNMENT
to apply the law as then understood. If there are uncertain-
ties or confused and contradictory decisions, the remedy is
sought either through new statutes or new administrative rules,
or through a bench of jurists intrusted with the especial duty
of promulgating general rules for the guidance of judges. In
any event, the assumption prevails that the law is definite and
positive, equally well understood by all subjects ; that law is
not a mysterious rule of action discoverable only by the high
priests of an occult science.
It is unthinkable that such a people, keen, positive, and logical
in their mental habits, should endure a constitution based upon
mere sentiment, or composed of customs, or understandings, or
rules of conduct, which are not themselves laws, but which trav-
erse the law and are treated as if they were above law. In
France the rule making the ministers responsible to the legisla-
ture is a written law. In England the rule is a mere under-
standing, while the old forms of law subjecting the ministers
to the Crown remain unchanged. Custom and understandings
have been permitted to nullify the law. The French as well as
the English have customs ; they have certain ways of doing
things ; but when a conflict between custom and law is raised,
either custom is condemned or the law is changed. The
greater part of the English Constitution is a subjective expe-
rience, a state of mind associated with a thousand years of
national history. There was no distinctly recognized constitu-
tion in France until a state of mind induced by a long period of
tyranny expressed itself in the destruction of despotism and the
substitution of government founded upon the will of the people.
Their Constitution was not merely a written declaration of prin-
ciples, but an embodiment of these i)rincii)les in an actual frame
of government. The French method requires that when the
government changes, corresponding alterations shall take place
in the written Constitution. The eleven constitutions have
each and all embodied the fundamental princii^les of the orig-
inal one; they are so many attempts to harmonize the letter
of the law and the actual government. How many constitu-
tions would have been issuerl in England during the same period
if the French methofl had been followed? It is the glory of
the ICngHsh Constitution that its marvelous adaptation to the
ever changing demands of |)uljlic opinion " conu-tii no! with
THE FRENCH CONSTITUTION— ORIGIN AND NATURE 561
observation." After ten trials the French have apparently
created a constitutional government with all the flexibility of
the EngHsh, while at the same time subject to definitely enacted
law.
The contrast with the Constitution of the United States is
scarcely less striking. Both countries have written constitu-
tions which are definitely enacted law. In America the real
constitution is not found in the words of the document, but in
the ruHngs of the courts interpreting it, a vast body of constitu-
tional law resting upon judicial decisions. The French Consti-
tution consists of a few brief enactments providing for a Cabinet
form of government. Executive and Legislature are left with
a free hand to do what seems best for the state, not infiuenced
or hampered by appeals to custom or usage as in England, and
in no way controlled by judicial decisions as in the United States.
The only appeal to past experience is by way of reminder that
there are yet unfulfilled ideals in the principles proclaimed in
the Revolution of 1789.
REFERENCES
DoDD. Modern Constitutions, Edition 1909, Vol. I, pp. 283 ff.
Lowell. Governments and Parties in Continental Europe, Vol. I, Chaps. I,
II.
Ogg. The Governments of Europe, Chaps. XV-XVIII.
PoiNCARE. How France is Governed, London, 1913, Chaps. I-VI.
Seignobos. a Political History of Contemporary Europe, London, 1901,
Vol. I, Chaps. V-VII.
CHAPTER XL VII
The Executive in Fr.vnce
The President of the French Republic serves for a term of
seven years. He is eUgible for reelection, has a salary of 600,000
francs (Si 20,000), and an equal allowance for household ex-
penses. The pomp and circumstance of the office are like those
of a king or emperor. The office is open to all citizens except
the members of families which have reigned in France. One
would think that an office with such attractions would make a
disturbing appeal to the ambition of poUticians. As a matter
of fact the election of the President commands little pubHc
attention or general interest. A month before the end of the
presidential term the two Houses of the Legislature meet in
National Assembly at Versailles and choose the next President.
He is usually one of their own number, is sure to be a states-
man of experience, and is naturally associated with the party
groups which at the time command a majority in the Legis-
lature.
Various attemi)ts have been made in France to separate legis-
lative and executive powers, bui in each case either anarchy or
the subordination of the legislature has ensued. Monsieur
Thiers (187 1), the first President of the Third Republic, was
chcjsen by the Assembly and was, in a sense, responsible to it,
though he personally exercised the power of appointing and
dismissing his ministers. The President, being at the same
time, in effect, Prime Minister also, was subject to the continuous
criticism of the Assembly. When he found that his poHcies
were not su[)[)orted he resigned (1873). MacMahon, the
second President, was in a like position until the adojjtion of
the Constitution of 1875. Then the President was no longer
responsible to the Assembly. He was removed from personal
contact with the ParManicnt and in his ])hice was estabUshcd a
responsible Cabinet of Ministers. France was thus transferred
THE EXECUTIVE IN FRANCE 563
to the cabinet type of government with an elected President
holding the place of the monarch in England.
The President thus chosen cannot be the object of patriotic
sentiment and the symbol of unity in the state as is the King of
England. When the citizens of the Republic do honor to a
public officer, sentiment attaches not to individual or family,
but to the state. The symbol of unity is the tricolor.' If the
President is not criticized, it is because his acts are not deemed
worthy of criticism, rather than because of any sentiment asso-
ciated with the office. Since 1875 three Presidents have been
induced to resign on account of adverse criticism. MacMahon
resigned on account of his failure to restore the monarchy.
Grevy resigned (1877) because of revelations of corruption in
his family, and Cassimir-Perier, called to the office upon the
assassination of Carnot in 1894, resigned after a few months,
because of difficulties in maintaining a ministry. Only three
Presidents have served the full term of seven years. In the
normal working of the system the President is not the object
of criticism, because his duties are usually not of a partisan
character. The Prime Minister and the Cabinet bear the brunt
of partisan attacks. It is a great advantage of the Presidency
as compared with the Monarchy that the chief executive is
always a man of mature age, an experienced statesman and
politician. Perchance, he has himself been Prime Minister or
President of one of the Chambers of the Legislature, and is thus
thoroughly acquainted with the working of the government.
On the other hand, it has been shown in the chapter on the
English Crown, that monarchy has likewise certain advantages
which can never attach to a temporary chief executive, and the
balance of merit may be fairly even. It is hence of interest to
the free governments of the world that both systems should
continue to exist. France is, at least, rendering valuable serv-
ice to all peoples living under a monarchy by making a dem-
onstration of an easily available substitute for an unsatisfac-
tory royal family.
President, Cabinet, and Councils. — The powers and duties
which the French President may exercise upon his own respon-
sibility are not numerous. Of these by far the most important
1 The refusal of the Bourbon candidate to recognize the flag of the Revolution
caused his defeat in 1877.
564 COMPARATRK FREE GOVERNMEXT
is the formation of a ministry. The President must select a
body of men who are responsible to the legislature and to the
country for the conduct of the government. This duty in
France is far more onerous than the corresponding service in
England. The King has practically no choice in the matter, if
English parties are in their normal condition. But the normal
condition in France lays upon the Chief Executive the often
difficult task of discovering a statesman willing and able to
form a workable ministry. The Prime Minister in France is a
legally recognized officer, his official designation being President
of the Council. The outgoing Prime Minister countersigns the
decree appointing his successor, but it is the President of the
Republic who really makes the selection.
With the Prime Minister in office cabinet responsibility
begins, other appointments being upon the recommendation
of the chief minister. Cabinet crises in France follow each
other in rapid succession. Rarely does a ministry endure for
two years. On an average, there is a new ministry every year.
An adverse vote in the Chamber of Deputies produces a cabinet
crisis ; the members resign in a body and the President must
find a new President of the Council. It is quite in order for
members of the former Cabinet to accept office under the new
Prime Minister. In fact, a complete change in the membership
of the Cabinet is unusual.
The President of the Republic remains in much closer touch
with the Cabinet than does the King of England. He not only
attends, but he presides over the meetings of the Council of
Ministers. These occur usually twice each week. Once a week
or oftcner the Ministers also hold a session of their own at
which the Prime Minister jiresides. This is called a Cabinet
Council. Of these meetings President Poincarc says, " The
Council of Ministers deals with the more important business,
the Cabinet Council with current questions of internal politics.'"
lioth councils are composed of the same ministers. The meet-
ings are secret; no minutes of the proceedings are kept.
Through this direct connection with the ministers the President
may exert much influence, i)ut for all official acts the ministers
are responsible. 'I'hc Constitution gives to the President the
power to negotiate and ratify treaties, but permits him to exer-
' " I low I'r.incc is CJovcrncd," p. k;?.
THE EXECUTIVE IN FRANCE 565
cise this power only by and through a responsible minister and
with cabinet approval. A list of subjects for treaties which re-
quire legislative approval before they are valid is given in the
laws. There are, however, important treaties which are en-
tirely in the hands of the Executive, and their terms may be
state secrets. The alliance with Russia is the result of such
a treaty.
The President undoubtedly has a free hand in the appoint-
ments to office in his household, although appointments in
general are ministerial rather than presidential. Pardons, the
general administration of the laws, the disposing of military
forces, are all in the hands of the Council of Ministers, subject
to such influence as the President may exert.
Besides the Cabinet Council and the Council of Ministers,
there is a third body called the Council of State, composed of
more than fifty members, selected, in recent years, by the
Council of Ministers. The Council of State originated in the
system of the First Napoleon. It exercises legislative and judi-
cial as well as executive functions. With the rise of the Cabinet
many of the legislative and administrative duties of the older
body passed to the Council of Ministers, while in recent years
its judicial functions have been greatly amplified. Histori-
cally, the Council of State fills an important place in the evolu-
tion of the Cabinet. Napoleon governed by means of this
Council, whose membership he controlled. With the increase
of power in the legislative assemblies the powers of the Council
of State diminished. With the advent of the Cabinet the older
Council became an assistant to the Council of Ministers.
Through its committees it aids the ministers in various lines of
administration, and it may also be called upon to formulate a
system of by-laws for the Executive.
French Method of Legislation. — No proper comparison can
be made of the relation of the executive and legislative depart-
ments in France and England without taking account of a radi-
cal difference in the partition of business between the two de-
partments. In England and in the United States, it is the aim
of the Legislature to furnish in the statutes minute, detailed
directions to the Executive. The laws are so drawn as to leave
to the administrative officers little or no discretion. The ideal
set before the legislators is to foresee and provide in the wording
566 CO:\IPARATIVE FREE GOVERNMENT
of the bills for all possible contingencies. In France, and in
all other countries apart from the Anglo-Saxon world, the work
of the Legislature is comparatively simple and easy. There is
no effort to foresee and provide for doubtful contingencies.
The statutes are drawn in general terms giving clearly the re-
quirements of the state, but leaving to the Executive the addi-
tion of all needed details. Administrative officers thus assume
and fulfill the more difficult functions of English and American
Legislatures.
To supply needed rules supplementary to the statutes, the
President of the French Republic issues general orders and
decrees ; the Council of Ministers formulates by-laws ; each
Minister gives general orders and directions in his own depart-
ment ; or, the ministers may call upon the Council of States
to prepare a system of by-laws on assigned subjects. Moreover,
in each Department there is a Prefect and in each Commune a
Mayor, who has the power of issuing by-laws. In these various
ways the executive department amplifies, explains, and applies
the acts of the legislature. In theory, at least, no by-law is per-
mitted to change or violate the statutes ; all are intended to
meet their requirements. Even in matters of finance there is
a limited field for executive discretion. Revenues may be
increased and credits extended to meet unforeseen needs.
Under such a system the work of the Cabinet in the Legislature
cannot be as exacting and as important as in England ; and the
administrative role is corrcsi){)ndingly more important.
Responsibility of Ministers. — The French Constitution
states that Ministers shall be jointly and severally responsible
to the Legislature, but gives no intimation as to the number of
Ministers or as to who shall organize the administrative de-
partments. The Executive itself has, therefore, assumed the
function of organization. The Legislature, by implication,
expresses ajiproval of the act by voting su|)i)lics to each new
dei)artment. There arc not, as in England, non-cabinet
Ministers. Neither are there sinecures, as in the Fnglish minis-
try, nor officers corresjjonding to j)arlianK'ntary and under
secretaries. Twelve men, each of whom is the head of an im-
portant administrative department, assume the entire ])urden
of a responsible Ministry. The following are the names of the
departments: Justice; Foreign Affairs; Interior, or Home
THE EXECUTIVE IN FRANCE 567
Affairs ; Finance ; War ; Marine ; Public Instruction ; Public
Works; Commerce; Agriculture; Colonies; Labor.'
The Prime Minister chooses any one of the departments. If
he is not the Minister of Justice, the holder of that office is
ex officio Vice President of the Council of Ministers. Ministers
are nearly always, though not necessarily, members of one of
the two Houses of the Legislature. All the members of the
Cabinet, whether members of the Legislature or not, have
free access both to the Senate and to the Chamber of Deputies.
In each of the Houses the ministers are privileged speakers on
all matters pertaining to the business of their several depart-
ments. Because of this privilege, the officers of government
monopolize a large proportion of the time of the legislature,
especially of the Chamber of Deputies.
The letter of the Constitution makes the Cabinet responsible
to the two Houses; but various features of the law tend to
restrict this responsibility to the Lower House. The Senate is
a permanent body. Its members serve for a long period — •
nine years. They are elected by an indirect process, one third
of the number every three years. Naturally the Senate, with
its high age requirement, responds more slowly to changes in
public opinion. It is evidently fitted to be a conservative,
regulative Second Chamber. There is no provision for dissolving
the Senate, and its consent is required for a dissolution of the
Chamber. In practice, therefore, ministerial responsibility is
to the Chamber, which receives a direct mandate from the voters
once in four years, or oftener in case of dissolution. An adverse
vote in the Senate does not cause a cabinet crisis. The few
instances where the attitude of the Senate has appeared effec-
tive in driving a Ministry from office are explained as exceptions
or as mere excuses for resignation on the part of a weak Cabinet
lacking adequate support in the Chamber of Deputies. ^ The
real political battles which count in the Government of the
country are waged in the popular Chamber.
The administration of the central government extends to the
minutest details of local government. The country is divided
into 86 Departments, 362 Arrondissements, nearly 3000 Can-
tons, and more than 36,000 Communes. In its chief outlines
1 The War Cabinet of August 26, igi4, had 14 members.
2 Lowell, " Governments and Parties in Continental Europe," Vol. I, p. 22.
568 COMPARATIVE FREE GOVERNMENT
the system is a product of the Revolution. It is artificial in
the extreme, the boundaries being fixed without reference to
former community life. The statesmen of the Revolution in-
tended to create, out of hand, a complete system of local govern-
ment. They did create the geographical boundaries for local
government, but they could not create the habits and experi-
ence required for successful local autonomy. The First Napo-
leon organized a centralized system of administration, using the
local areas as a framework and, with some important modifica-
tions, it still survives.
For purposes of convenient local autonomy there are too
many subdivisions ; a citizen cannot maintain a lively corporate
interest in four distinct areas. Both the Arrondissement and
the Canton are mere districts, with no corporate qualities.
They own no property and do not of themselves levy and collect
taxes. The Arrondissement, as a subdivision of the Depart-
ment, serves as a district, for departmental administration. It
has a Subprefect, who is subject to the orders of the Prefect,
and an elected Council with only advisory powers. It is also
the legislative district for choosing members of the Chamber of
Deputies. Cantons serve as districts for the Justices of the
Peace and for choosing members of the Council General of the
Department.
The Department and the Commune are corporate bodies.
Potentially they are centers for the development of local govern-
ment ; they are, however, under the control of the Central
Government.
The Prefect of the Department is the officer through whose
agency France is governed. One may gain an idea of the
significance of this ofiice by eliminating the American State
ofiiccrs and placing in the hands of a single appointee of the
President the business of the state legislatures, tl\e state execu-
tives, and, to a large extent, of the counties, cities, and school
districts. The Prefect governs (he Dejmrtment subject to the
orders of the Minister of the Interior. This was the character of
the office as established by Napoleon 1. Under the Third Repub-
lic modifications have been introduced which are fitted to de-
velop into a limitation on the jjower of the central government.
Local Government. — Ivich of the Cantons within the De-
partment elects, by universal male suffrage, one member of a
THE EXECUTIVE IN FRANCE 569
Council General for the Department. Members of this Council
hold offices for a term of six years, one half retiring every three
years. The Council holds two short sessions each year, and
no important powers are conceded to it. Subject to the veto
of the Central Government, it may adopt resolutions on purely
local matters and apportion direct taxes to the Arrondissements.
All the acts of the Council are under the guidance of the Prefect
of the Department. He prepares the budget to be voted. Even
the measures enacted by the Council General are in his hands to
be enforced or not at his will. The Council has no means of
enforcement. There is, however, a representative committee,
or commission, appointed by it, whose duties are purely advis-
ory. In fact, the Council General has no independent authority.
The Prefect or the Minister of the Interior may issue orders
which are enforced as law; but the acts of this representative
assembly are treated as recommendations, not as laws. Its very
existence is precarious, since it may be dissolved by the Central
Government. The importance of the Council General consists
not in what it has done, but in what it may yet become. Presi-
dent Poincare, after describing the Council in action, says : " If
you have attentively followed the proceedings of the council
you will doubtless receive the impression that there are unem-
ployed forces here, and that the citizens ought to strive to
make the departmental organism more active and energetic."^
This, it may be seen, is the expression of a hope for the future of
French democracy rather than an attainment. Primary in-
terest is still absorbed in the one problem of gaining a more
effective popular control over the general government. Democ-
racy in France has not yet reached the decentralizing stage.
The communes, like the other local institutions, received the
stamp of artificiality. They were made practically identical
in their forms. A rural commune consisting of less than a
hundred people has a frame of government similar to that of
Bordeaux with nearly half a million. Paris and Lyons are,
however, favored with special local organizations. In each
commune there is a Council elected by universal suffrage every
four years. The number composing it varies, according to
> Poincari', "How France is Governed," p. 70; Lowell, "Governments and
Parties in Continental Europe," Vol. I, p. 38; Ogg, "The Governments of Eu-
rope," p. 346.
570 COMPARATIVE FREE GOVERNMENT
population, from ten to thirty-six. All members are elected at
the same time, and by scrutin dc lisle, or general ticket. The
Mayor, with one or more Assistants, is elected by secret ballot
in the Council from its own number.
While in its present form of organization the commune is
recent and artificial, it is associated historically with the remote
past. Towns and cities played an important part in the de-
struction of feudal despotism. The larger cities maintained
also traditions of resistance to centralized autocracy. The
commune, therefore, is the one modern local institution which
calls forth strong personal sentiment. It also has a modicum
of independent governmental power. Unlike the department, it
is provided with a locally elected executive. The mayor and
his assistants perform the double function of administering
general and local orders. As agents of the General Government
they act under the direction of the Prefect of the Department.
As local officers they carry into effect policies adopted by the
Communal Council. On a few matters purely local the Council
and mayor may act without consulting the higher authorities,
though the exercise of independent powers is guarded in many
ways. The Mayor may be suspended for a month by order
of the Prefect; for three months by the Minister of the In-
terior ; and he may be removed from office by the President of
the Republic. Only a limited number of the resolutions of
the Council are of themselves valid ; others require the approval
of the Prefect ; still others more important, the approval of the
central government ; others more important still must be sub-
mitted to the Senate and the Chamber of Deputies. A few of
the great cities have a larger measure of local autonomy than
the smaller communes.
From this brief description it is evident that the President
of the Re[)uljlic and the twelve members of the Cabinet are
responsible for the administration of the entire government,
local as well as general. Not only do executive ofllcers ad-
minister the laws; to a large extent they also make the laws,
since they issue acts sui)pkmonling the brief statutes emanating
from the legislature. In locd matters administrative officers
rather than municipal assemblies exercise the lawmaking
function. Powers are thus d-nl rali/.cd in the Executive. The
one means of popular control is through the two houses of the
THE EXECUTIVE IN ERANCE 571
Legislature. The system involves cabinet responsibility to the
Chamber of Deputies.
The relation of the Executive to the Judiciary is discussed in
later chapters. In the French use of the term an independent
judiciary means a judiciary which in no way interferes with ad-
ministrative officers : i.e., Judges do not hear complaints on
account of official wrongdoing. If citizens suffer from, illegal
acts, they may appeal for redress to higher officers in the execu-
tive or they may call the Cabinet to account in the Chamber
of Deputies. A third method of protection against adminis-
trative abuse is provided for in administrative tribunals in which
cases of alleged violation of law may be investigated and de-
cisions rendered. Associated with the Prefect in each depart-
ment there is a Council which acts as a tribunal in matters of
administrative disputes. The Council of State also serves as
a tribunal to hear appeals from the departmental councils and
complaints against the higher ofi&cers of state. ^
REFERENCES
(See Chap. XL VI for general references.)
MuNRO. The Government of European Cities, Chap. I.
PoiNCARE. How France is Governed, Edition 1913, Chaps. VII, VIII.
Shaw. Municipal Government in Continental Europe.
Wilson. The State, Edition of 1S98, pp. 224-244.
1 For further elaboration of the topic see below, p. 5S9.
t
CHAPTER XLVIII
The Legislature and Political Parties
Legislative halls on the Continent of Europe have the seats
arranged in a semicircle, facing the presiding officer. In all
of these assemblies there is the same traditional arrangement
for the location of the party members. Extreme conservatives
and reactionaries occupy the seats to the right of the President ;
extreme radicals occupy the seats to his left ; the moderates
sit in the center. Parties are named from their respective posi-
tions in the hall, as, — the Party of the Right and of the Right
Center, the Party of the Left and of the Left Center. There
may be a fifth designation, — the Party of the Center. The
actual party organizations are usually more numerous and
, their relations to one another more complex and confusing than
is this division into four or five leading groups ; but in its chief
outlines this order holds true for party divisions in Continental
legislatures.
In some of its features the English Cabinet system is quite
unworkable in a legislature so organized. The multiplicity of
party groups calls for a different plan. The French Chamber
of Deputies is a good example of the Continental type of cabinet
government. Like the English, the French system fuses
Legislature and Executive ; it makes the Cabinet responsive
to and dependent uj)on the votes of the Assembly. It is a true
cabinet government having corporate responsibility, but its
relation to (he political parties is radically diflerent. The
French Cal^inet is not itself a party organization, as is the
English. Parties in l<>ance are organized to influence govern-
ment; not to govern. 'I'he l*'nglish Cabinet is confronted at
every point in Parliamcnl and l)cf()re the country by a "shadow
cabinet " of equal numbers, equally organized and seeking lo
win a majority. The system recjuircs two governing parties,
whose joint constituencies inckuk' practically all the voters of
572
I
THE LEGISLATURE AND POLITICAL PARTIES 573
the nation. The French plan will admit of nothing of the sort.
Its legislature, on the contrary, exhibits an ordinary minimum of
at least four permanent major party groups.
The Political Parties.^ — First, there are citizens who have
lost some privilege in government which they have greatly
cherished. Something is passing or has passed which they
deem of primary inportance. To defend what is threatened
and to recover the lost is their mission. These are the reaction-
aries, or the extreme conservatives, — the party of the Right.
Second, there are those who set a high value upon the dearly
bought experiences of the past ; they would not lightly sacrifice
anything of value, though they recognize the facts of progress,
and are actuated by a desire to harmonize the new with the old.
These are the moderate conservatives, — the Right Center.
In the third class are the idealists who seek to gain for the
state blessings never yet attained, reformers who would adven-
ture into new fields of statesmanship. They would not wantonly
destroy the present order, neither would they permit the pres-
ent order to block the way to the attainment of greater good.
These form the Left Center. The Fourth class are idealists
who find in the present order of society an obstruction to the
new order which they would substitute in its place. These are
the Radicals, Socialists, and Anarchists of the Left. The his-
tory of the Third Republic shows the shifting of power from
one to another of these main groups. The Party of the Right
— Clericals and Royalists — held a dominant place until 1877.
The Right Center, — Moderate Republicans and Progressists,
— with the help of radicals, was then in control until 1898.
Since 1902 the Radicals, assisted by Socialists, have been in the
ascendant. The movement has been from Right to Right
Center and on to Left Center. Some theorists would give a
permanent place to a fifth party group, a party of the Center,
whose special function should be the coordination of the prevail-
ing tendencies in the State in times of emergency. Of such a
party Waldeck Rousseau was leader during the period of
transition from Right to Left, from 1898 to 1902.
' The description of parties in France given here follows freely the work of M.
Leon Jacques, " Les Partis Politiques sous la IIP' Rcpubliquc," Paris, 1913. For
a full discussion of party groups and their component parts the student is referred
to this admirable work.
574 COMPARATIVE FREE GOVERNMENT
The aclual condition of parties in France is by no means so
simple as this description would indicate.^ In each of the four
sections there are subdivisions with distinguishing names and
organizations. Numerous intermediary organizations tend to
obscure the lines of division between the major parties. In
the legislative hall sit men who were elected under one party
designation and who act and vote under another. Some
members are allied with more than one party group.
It should be remembered that in each of the ruling parties in
England there appears a tendency to form minor organizations
for the promotion of special interests. In each party are ex-
tremists and moderates. Numerous combinations appear,
looking to political ends. Yet in the House of Commons
practically every member is a supporter of one of the two party
leaders. The English system forces all organizations into at
least a temporary alliance with one of the parties. Within the
separate parties and between the parties there is continuous
readjustment. In the French Chamber, however, this kaleido-
scopic rearrangement take places within the Assembly. In an
important sense the English Cabinet is master of the Assembly,
but French Ministers hold no such masterful position.
The Organization of the Chamber. — The Chamber of Dep-
uties organizes itself according to rules which prevailed long be-
fore any Cabinet had appeared. It appoints a bureau of si.xteen
of its own members to ha\-e general charge of its business and to
act on behalf of the Chamber during recesses. The head of this
Bureau is the President of the Chamber. He is not an impartial
presiding ofiicer, as is the Speaker of the House of Commons.
Nor does he control the House as a party leader, after the
manner of the Speaker in the American House of Representa-
tives. The President of the Chamber of Deputies is an ex-
perienced political leader; he takes an active part in the de-
bates of the Assembly; he may or he may not agree with the
Cabinet ; but his advice is sought by the President of the
Republic in the selection of a leader to form a new ministry at
the time of a cabinet crisis. The presiding ofiicer thus exercises
' Lowell, flcsrribinK the party divisions in 1876, says, "In tlie Ciiamljcr of Dep-
uties were the Left Center, the ke|)ul)lican Left, the Kcpui)lican Union, the Radical
Left, and the lixtreme Left ; and each of these, like the fractions into which the
RiRht was split, was orRanized with president, secretary, and executive committee
of its own." — " Governments and Parties in Continental Europe," Vol. I, p. 78.
THE LEGISLATURE AND POLITICAL PARTIES 575
large responsibilities in preserving order and in assisting the
Chamber to fuliill its mission. Other members of the bureau
of sixteen fill the offices of vice presidents, secretaries, and
auditors for the Chamber.
To organize for the transaction of business the six hundred
Deputies, following an ancient custom, divide themselves by
lot into eleven sections, or bureaus, as nearly equal in number
as possible. This division takes place every month. These
eleven sections assist the Assembly in determining the validity
of the elections of its members ; they discuss briefly the bills
presented to the Chamber, and determine the attitude of the
members upon these bills before they are referred to a committee.
But by far the most important service of the Bureaus is the ap-
pointment of committees to consider and report upon the bills
brought before the House. The separate sections first give
enough attention to a bill to determine who are in favor of and
who are opposed to it ; and then each bureau names one of its
members to serve on the committee to examine the bill, suggest
amendments, and report to the House. The plan, as will be
seen, provides for a special committee of eleven to consider
each bill. Measures of peculiar importance may have a com-
mittee of two from each Bureau, or even three. The Budget
and the auditing of accounts go into the hands of committees
of thirty-three each, appointed for a year. Committees on
the Army, on Labor, and on a few other topics calling for much
legislation, are made practically continuous in service, and all
bills pertaining to those subjects are referred to them.
There are thus two sorts of bureaus : the permanent Bureau
of sixteen made up of the President and other officers of the
Chamber, and the eleven temporary bureaus into which the
meml^ers of the Chamber divide themselves by lot each month.
There are, likewise, two varieties of committees to consider and
report upon bills. Measures pertaining to Finance, Army and
Labor, and a few other subjects of primary importance are
referred to permanent committees, all other bills are referred to
special committees appointed by the eleven bureaus, each bureau
naming one or more of its members to serve on the committee.'
At the opening of each legislative session the Prime Minister
presents a brief outline of the poHcy of the Cabinet and the pro-
' Lowell, "Governments and Parties in Continental Europe," Vol. I, p. iii.
576 COMPARATIVE FREE GOVERNMENT
posed legislation, and ministerial bills are prepared and intro-
duced.
The Cabinet has been injected into an Assembly already or-
ganized to perform its duties without executive guidance. How
can such an organ secure support from such an Assembly?
This is accomplished through definite modifications in the
working of the system. The leaders of the stronger party
groups agree in advance upon the composition of certain com-
mittees of special political importance. The fact that the minis-
ters are privileged speakers in both Houses of the Legislature
enables the Cabinet to monopolize the time and dominate
their action. There is, indeed, constant friction between the
Cabinet and the Committees, and it is evident that the later
system is not yet fully harmonized with the earlier one.
The Cabinet members have seats in a central position in
front of the Presiding Officer. No opposition of trained critics
confronts the Government, as in the House of Commons in
England. Ministers address the Chamber from the Tribune,
which is a raised platform lower than the seat occupied by the
President and placed immediately in front of him. From the
same place come speeches for and against Cabinet measures ;
and from various parts of the chamber spring sallies of attack
upon or defense of government proposals.
French Ministers are accustomed to be called to account for
their policy by two quite distinct processes. First, there is
the ordinary Question, directed to the Premier or to any one
of the ministers. The Question requires notice and previous
consent of the minister who gives the answer; and only the
member who asks the (juestion has a right to reply to the
minister. Second is the Interpellation, which may proceed
fi\)m any member of tlie House and may j^erlain to any part
of the ministerial policy. The Interpellation is a formal chal-
lenge, and the Ministrj/ is compelled to make answer within
thirty days, a day being fixed for the reply. The Ministry
adopt a form of words explaining their attitude on the policy
called in ciuestion by the Interpellation and then move to pro-
ceed with the regular order of business. Upon this motion
there ensues a general debate attacking and defending the policy
of the Cabinet. At the end of the debate, if the ministerial
motion receives a majority vote, the government is sustained.
THE LEGISLATURE AND POLITICAL PARTIES 577
A negative vote does not necessarily cause a cabinet crisis,
since the interpellation may pertain to a trivial matter which
the government decides to ignore ; yet such a vote always
weakens the Cabinet and usually is followed by resignation.
About half the French cabinet crises are produced by an ad-
verse vote following an interpellation.
The Senate. — The organization and working of the Senate
is similar to that of the Chamber. It elects a President and a
body of officers to manage the business of the House. It divides
into nine, instead of eleven, bureaus ; the committees, there-
fore, number nine or a multiple of nine ; that on the Budget
consists of eighteen members. The salary of the members is
the same as that of the Deputies. While the election^ is by an
indirect process, still, all the persons of the various classes quali-
fied to vote for Senators in the Departments are themselves
chosen by the voters who elect members of the Chamber of
Deputies. Politics enters into the choice of Senators.
All the great parties have members in the Senate, but some of
the minor ones are not represented. Party changes are less
rapid than in the Chamber, yet the permanent tendencies are
reflected in the Senate as in the Lower House. The fact that
all the Ministers are privileged speakers in each of the two
Houses tends to secure harmony of action and to avoid pro-
longed conflicts. There are frequent disputes over the power
of the Senate to amend or change bills for raising revenue, but
thus far serious conflict has been avoided. Government bills
strongly supported in the Chamber can usually be got through
the Senate.
The French Senate is vastly more influential and important
than is the House of Lords in England ; - on the other hand it is
correspondingly inferior in power to the Senate of the United
States. The French Senate has one peculiar judicial function.
Like the United States Senate, it serves as a court for the trial
of impeachments, and in addition to this it may be transformed
into a high court for the trial and punishment of any one who
is accounted dangerous to the Republic. In 1889 Boulanger,
who had for several years been a disturbing element in politics,
' See above, p. 556 cl srq.
^ Lowell, " Governments and Parties in Continental Europe," Vol. I, pp. 21-26;
Bodley, " France," Vol. I, pp. 46 B., London, i8g8.
2P
578 COMPARATIVE FREE GOVERNMENT
was summoned to appear before the Senate for trial. Instead
of appearing he chose to become an exile.
Party Organization. — To understand the relation of the
French Cabinet to the voting constituencies involves a knowl-
edge of the party organizations. In the States of the American
Union the fact that one usually votes a certain party ticket
entitles him to legal rights as a member of that party and to a
voice in the selection of its candidates. On the Continent of
Europe the fundamental assumption as to what constitutes
membership in a party is different. The habitual voting of a
party ticket does not make one a member of a party, nor does
it entitle him to any share in the nomination of candidates.
The parties are composed of those who have formally joined the
organizations and who pay the required fees. The fees are
paid annually, monthly, or weekly, and may be high or low.
Each party has its own system, but all party membership is
conditioned upon paying at least an annual fee. In some
parties there are two, three, or even four grades of membership,
according to the amounts paid and the corresponding privi-
leges in respect to control of the organization. Parties of the
Right in the Chamber of Deputies exact large annual fees;
those of the Left small ones. The highest rank in one of the
royalist parties requires an annual payment of at least $ioo,
while a socialist may attain a full voting privilege in his party
for a few cents per month. High fees with various ranks
are characteristic of the Right; fewer ranks and lower fees
are characteristic of the Center; and the extreme Left has but
one rank and a low uniform system of contril)ution.'
The organization of parties is of recent dale in France. Not
until after the Boulanger disturbances, which terminated in
i88q, were there any systematic national organizations with
central offices in Paris. Since that date tlie leading parties ha\e
all attained central organizations with subdixisions in the I)c-
I)artments, establishing a regular means of communication with
the local clubs and associations in the communes. The central
ofTice in I'aris is a clearing house for gathering from and dis-
tributing party information to all [jarts of the country. Parly
biillctins are regularly issued by ihc stronger orgain'zations and
' .SlalcmciUs rcspcclinK local orKaiiization of parties arc l)asf<l iiiioii information
flerivcd fnjm party ofTiciais in 1913.
THE LEGISLATURE AND POLITICAL PARTIES 579
the party newspapers fill a place of influence which is without
parallel either in England or America. Through these numerous
organizations and the complicated system of finance which each
involves, large numbers of French citizens are rapidly acquiring
needed experience in the ability to initiate and to execute a posi-
tive program.
The Revolution of 1789 found the people void of organizing
ability. They could combine to destroy, but the masses were
helpless to create a new order. Socialists began at once to
combine to proclaim new gospel, but it required almost a
hundred years for them to create an effective organization.
Poverty of organizing ability among the revolutionists has
inured greatly to the advantage of the ecclesiastical orders
with their superb system. Poverty of organizing ability has
also undoubtedly been an influential factor in inducing the
Freemasons of France, as a society, to enter politics as a
counterpoise to the Roman Church. To the same cause may
be attributed the failure of labor unions in France. Unable to
form and execute positive programs of amelioration, the
wage earners become victims of policies of destruction, " sabo-
tage," " syndicalism," or revolution. Socialists, on account
of their superior organization, are winning the laboring classes
to the support of more moderate and conservative policies.
They go farther than any other party in extending their member-
ship to include all who habitually vote for their candidates.
All the parties seek to increase their membership. To this
end there is a tendency toward reduced fees, some of the or-
ganizations even permitting local clubs to join the party by
simply paying a single membership fee. The ideal will be ful-
filled when aU who habitually vote for the candidates become
paying members of the party. American voters enjoy full
party membership without financial sacrifice. The French who
become members of a party are trained to expect an assured
demand upon their incomes to promote the objects of their
party.
Improved organization is naturally followed by more insistent
demands upon pubhc officers. Beginning about the year 1910,
the better organized parties required that members of the
legislature whom they elect shall hold together and vote as
a body. The new rules establish closer relations between
580 COMPARATIVE FREE GOVERNMENT
the members and the party councils. This latest development
corresponds to the rise of the Caucus in England, when, under
the leadership of Chamberlain and Churchill, the party councils
undertook to dictate policies to the Cabinet.^ It was then seen
that since the Enghsh Cabinet, from its essential nature, was it-
self the supreme party council, it could not submit to dictation
from an outside organization.
In France the case is different; the Cabinet is not a party
organ. Greater simplicity and efficiency are likely to result
from a closer association between pubHc officers and the party
councils. The parties and the public press with which they are
identified are become the great organs of pubHc opinion. They
enable the lawmakers to feel their way. The French Cabinet
cannot, as does the Enghsh, keep in touch with the voters
through Whips and paid agents. Nothing of the sort exists
in France. There is need, therefore, of some reliable source of
guidance ; and the stronger parties are assuming this role.
Recent developments are likely to diminish the number of party
names by drawing into a few great organizations the allied
groups. Nothing, however, has thus far occurred to lead to the
cxj)ectation that parlies on the Continent will finally be reduced
to two and thus make way for the English cabinet system.
Belgium has been quoted as a Continental state exemplifying
the English system. But one of the so-called Belgian parties
is the Roman Catholic Church, and the other is composed of
numerous groups opj)osed to the Church. This has no real
resemblance to the English system, but means a prolonged duel
between the Church and its opponents. ^
The French cabinet system is in the formative stage. It
has not yet had a fair trial. Its very existence is still seriously
threatened. Royalists and Bonapartists would restore a
monarchy with independent executive powers. The Church
still maintains a pro|)aganda against the Revolution. These
are all discordant elements. What form the government will
assume when all classes shall have accepted the existing Constitu-
tion is for the future to determine. The probabilities are in
favor of a continued parliamentary system, but one with a
Cabinet which is decidedly un-English in its relation to party
' Sec alxjvc, Chap. XL.
'" Scignobos, " A Political History of Conlemixjrary luiropc," Vol. I, i)p. 2.jf>-2So.
THE LEGISLATURE AND POLITICAL PARTIES 58 1
organizations. England is as likely to adopt the multiple party
system of the Continent as continental states are to adopt two-
party government of the English type.
REFERENCES
(See references for Chaps. XLVI and XL VII.)
BoDLEY. France (1900), Vol. II.
Jacques. Les Partis PoUtiqitcs Sous la IIP Republique, Livres I, II.
Marriott, J. A. R. Second Chambers, Oxford, 1910, Chap. X.
PoNDiA and Pierre. Traile pratique de droit parliamentaire, Eight vols.
k
CHAPTER XLIX
The ROM.A.N Legal System and Modern Government
The preceding chapters have discussed the State of France
as having a typical Continental Government differing in many
ways from the Anglo-Saxon democracies. This radical dis-
tinction in the forms of government and in the types of law which
separates Anglo-Saxon countries from all others can in a measure
be accounted for by a consideration of the way Roman law and
government have affected England. The present chapter is
devoted to a sketch of legal development in England and the
United States and on the Continent of Europe. Necessarily
brief, it merely suggests some of the fundamental influences
which account for radical differences in the distribution of the
powers in the governments.
The Romans have given to the world a system of law fitted
to become universal. The English system of Common Law is
best understood as a recent and peculiar modification of the
Roman system. The men who first organized government in
England were versed in the Roman system. It was only late
in the thirteenth century after separate high courts had been
set up that the peculiar English differentiation arose. Common
Law has a history of less than seven hundred years. Roman
Law has a continuous history of some three thousand years.
The Roman system prevails in nearly all civilized countries
outside of the British Empire. The peculiar Common Law
modification is for the most part confined to England and coun-
tries colonized by Englishmen. English law has been extended
to Wales and Ireland, while Scotland retains the Roman system,
as do (Quebec, South ,'\frica, and the State of Louisiana. What
will be the ultimate system in Lidia and other liritish i)osses-
sions is for the future to determine. The Common Law system
is, then, a special Anglo-Saxon institution, though it emlxxlies
certain principles of liberty which entitle it to recognition in
all free states.
582
ROMAN LAW AND MODERN GOVERNMENT 583
Early Roman Law. — Roman Law, like English law, originated
in a struggle for liberty. Before the Laws of the Twelve Tables
were enacted centuries of progress had been leading towards an
enlarged citizenship. The Plebeians had already obtained many
civil rights. The Patricians held the chief offices when the
Plebeians, having superior force, made an effective demand that
the laws should be codified and published, so that all might be
equally informed as to their rights. The result was that after the
first great Roman Code of 451 B.C., all distinctions between
Patricians and Plebeians gradually disappeared. Roman citizen-
ship was afterwards extended to the poorer unorganized classes.
Strangers living in Rome secured at the hands of Roman magis-
trates the administration of the laws which they had been accus-
tomed to enjoy in their own countries. As the Romans annexed
new territory the local territorial laws were still administered.
Magistrates thus became expert in the administration of a great
variety of laws and in the selection and extension of those rules
of conduct which were found to be most beneficial. Selected
Roman Law became the common law for a great variety of
tribes and peoples in a growing empire. The extension of the
Empire carried with it the benefits of an improved legal system.
At first no distinction was made between private and public law.
" Private law furnishes the foundation upon which public law
rests." ^ Plebeians and the proletariat contended for political
as well as for property rights. During the later centuries the
Roman rulers became obsessed with the idea of world conquest
and great changes ensued in the organization of the government.
" The young Empire which arose over the ruins of Carthage
bore the seeds of its own destruction within it." The masses
became subject to the rich. " While Rome's serfs were growing
into freemen, her power was steadily in the ascendant ; when the
masses of her small freemen lapsed into serfdom, her power was
doomed. Christianity came to proclaim the gospel to the
masses, but it arrived too late to effect any decisive reform in
the existing economic conditions." -
Early Roman statutes were enacted by large assemblies of
citizens in which was no opportunity for discussion or debate.
The Roman Senate was quite as much an executive as a legisla-
1 Sohm's "Institutes of Roman Law," p. 36, Third Edition. Tr. by Ledlie,
0.\ford, igo7. 'Sohm's " Institutes of Roman Law," pp. 44-45. Tr. by Ledlie.
k
584 COMPARATWE FREE GOVERNMENT
live body. The Twelve Tables were prepared by a commission
appointed for the purpose and were enacted by vote of the
comitia ccnturiata. Roman law was largely developed from
discoveries made by administrative officers. When a praetor
was set to rule over a district he administered the laws and cus-
toms which he found among the people. He issued general
orders of instruction to the judges and these orders when sanc-
tioned by the general government became laws. His doubts
were solved by seeking instruction from higher oflScers. This
policy produced a class of experienced students of law.
The Commentaries of the Jurists and expert students were
often enacted into law. Through various agencies private
law was perfected by the elimination of differences and by a
selection of such rules of conduct as, based upon experience,
were found most helpful in securing domestic harmony. Numer-
ous codes were prejjared for the guidance of public officials
and for the instruction of the people. For more than a thousand
years the legal codes were, in theory, based upon the laws of
the Twelve Tables. When the Emperor Justinian (527-565
A.D.), with the help of eminent jurists, made a complete codi-
fication of the entire system of ancient Roman law, the Justinian
legislation furnished a new starting point for the develojMTient
of the Roman system.
Later, or Private, Roman Law. — It is to be observed lliat the
later Roman Codes embody only a part of the law develoi)ed
by the early Republic. They contain no bill of rights, no recog-
nition of the right of subjects to a share in the government. Only
such laws are found as may be administered by a corrupt and
tyrannical government. Caracalla (212-217 .\.d.), who made
all free subjects of the Empire Roman citizens, was noted
for corruption and tyranny. Citizenshij) harl long ceased to
imply any important political rights.
When Rome became a conc|uering empire, military chiefs
found it to their advantage to extend and perfect only that
[)art of the law of the Republic which pertained to private and
personal rights. Hence, during the centuries of conquest the
laws governing the ownershij) and transfer of j^roperty, family re-
lations, and the [)unishment of crime, became dissociated from
any idea of a share in the government. In tlie realm of i)rivate
law, Roman conquest carried with it the great boon of justice
ROMAN LAW AND MODERN GOVERNMENT 585
and equity to the subject peoples. By the separation of private
from pubHc law corruption and tyranny in the government were
enabled to coexist with progress in the development of a system
of private justice. It is a remarkable fact that Roman private law
was perfected during a period of degeneracy in the government.
Bryce designates the four hundred and fifty years from the end
of the First Punic War (241 B.C.) as the time occupied in the
completion of the Roman system.^ The result is thus described
by Sohm : " Towards the commencement of the third century
(in the reign of Caracalla) , the Roman franchise was extended to
the great bulk of the subjects of the Empire. ... To be a
citizen of Rome was now to be a citizen of a world-wide Empire.
The Roman Civil law — at one time a narrow kind of private
law, circumscribed and limited by national idiosyncrasies —
expanded into a private law for the citizen of the orbis terranim,
a law for the private person as such, a law, in other words, in
which the essential and indestructible elements of the private
personality found expression. And at the same time the rules
regulating the ordinary dealings between man and man widened
into a system in which the essential character of such dealings
was brought out, a system not restricted to the dealings of any
particular age, but applicable in all ages alike. Herein lay
the secret of the imperishable strength of Roman private law." -
A corrupt and decaying government thus perfected a system
of justice received from an earlier free and progressive Repub-
lic. The government perished, but the system of law did not
perish. Barbarian conquerors were induced to accept this gift
from the past and transmit it to modern free states.
English, or Common, Law. — The early development of Eng-
lish law was not unlike that of Roman law. In each case the
people were contending for their rights, personal and political.
Neither in Magna Charta nor in the Twelve Tables of Roman law
is there any suggestion of a separation of private from public
law. In England the contest continued along the original
lines of a struggle for both private and public rights. While
Roman emperors had restricted the magistrates to the adminis-
tration of private law, English kings followed a different course,
creating new courts by means of which they restrained the power
' Br>'ce, " Studies in History and Jurisprudence," p. 114. Essay II, § VIII,
^ " Institutes of Roman Law," p. 46.
586 COMPARATIVE FREE GOVERNMENT
of feudal lords. The people were taughl to look to the king's
courts for the defense of political as well as private rights.
Public officers were held amenable to the ordinary courts and
nobility and clergy were made subject to the law. In course
of time kings also were deprived of arbitrary power and were
rendered submissive to Parliament.
By a gradual and imperceptible process the Roman people
had lost all share in their government, while at the same time
Roman rulers were perfecting a system of private law. Gradu-
ally, also, in course of centuries, the English people have gained
recognition as themselves the source of all political power and
authority. The pjiglish kings did not intend to build up a
democracy. They labored to increase and perpetuate their own
power, as did the Roman emperors. But the barbarian con-
quests and the resulting feudal system had created a break in
the continuity of Roman administration. Private and public
law were again fused together, and local conditions favored the
development of political rights.
Space does not permit of detailed description of the sharply
contrasted systems of English and Roman law. Only a brief
notice of three characteristics which explain the peculiar English
distribution of the high powers of state will be given.
In the first place, as already noted, English courts administer
both public and private law, and the judiciary is thus enlarged
at the expense of the executive. Administrative officers are
held accountable before the ordinary courts for any alleged
illegal acts.
A second, more rarlical, difference is found in the fact that a
considerable part of I-Jiglish law is derived from the judiciary.'
As the king's justices i)assed from shire lo shire securing to the
peoi)le their local rights and customs, the rulings of the courts
transmuted custom into law. This was undoubtedly a potent
agency in strengthening the ])osition of the Crown, which also
gainefl in prestige as the High Court of Ajipeal. The rulings of
the courts became important soinxcs of both piiblir and private
law.
The spirit ol" the Koinan Law is radicallx' dilTcrent. It is
the business of (he Roman Law court to ajjply the rules of law
to cases of disi)uled right, not to determine what the rules
' Aljovf, p. 40O.
ROMAN LAW AND MODERN GOVERNMENT 587
are. If there are uncertainties as to the rules, light is
sought from administrative officers or from the legislature.
It is the aim of Roman Law to inform litigants in advance as
to what are the rules of law ; to make the statement of the rules
so clear and distinct that to understand them calls for no unusual
technical knowledge. Chance decisions of cases in litigation
are not permitted to obscure the rules of law, and judges are
warned against the evil tendency to follow precedent in their
decisions. They are admonished to do justice in each case
regardless of former decisions. If new light is required, it is not
sought among the utterances of magistrates in deciding previous
cases. The Roman system thus restricts the ordinary judiciary,
first, by confining it to the field of private law, and, second, by
preventing the courts from becoming a source of law.
The third difference lies in the exaltation of the legislature as a
lawmaking body. The process of lawmaking in England at
first did not greatly differ in form from the Roman method.
Magna Charta, like the Twelve Tables, was a brief summary of
private and political rights. The Petition of Right exacted
from Charles I (1625-1649) was also a brief summary of rights.
Neither Charles nor John had any intention of obeying the
laws which were exacted from them by force. It was the diffi-
culty of securing royal obedience which led Parliament to in-
troduce into the statutes minute details and then to secure
their administration through a Cabinet controlled by the legis-
lature. The king, as chief executive, was thus restricted in his
power to interpret and apply the acts of Parliament. This
enlargement of the functions of the distinctive legislative
assemblies is, therefore, a very recent innovation in the Roman
system, and is strictly limited to Anglo-Saxon countries. In
other modern free states the Roman method of general lawmak-
ing prevails.
Each of the three English modifications of the Roman s)-stem
deprived the administrative department of a portion of its
power. First, by administering without discrimination both
public and private law, the. courts rendered executive officers
accountable to the judiciary. Second, English judges performed
functions that in Rome had fallen to administrative officers.
They both expounded and applied the law, and enlarged and
adapted it to changing conditions. Third, Parliament was led
588 COMPARATTVE FREE GOVERNMENT
by fear and distrust of the king to introduce minute details
into its statutes, thus depriving the executive of the right to
expound and apply the laws.
Constitutions and Law in the United States. — A more radical
departure from the ancient system is found in the United States.
Roman public law was in the beginning evolved from preexisting
customary or private law. In the United States the process
is reversed, public law is made fundamental. There is no law,
there are no legal rights, either private or political, except such
as are authorized by the Constitutions. The American system
is the exact opposite of the Roman system. It begins with
public law ; private rights are made dependent on public law.
Romans made sure of private rights, leaving public law in the
hands of tyrants. Neither system will be complete without
the other. Many centuries were required to perfect the Roman
scheme. Americans have entered upon the more difficult task of
perfecting and harmonizing both public and j)rivate law. Thus
far time for only a crude and imperfect beginning has elapsed.
Bagehot has called attention to the fact that, at a certain
stage in the evolution of the race, quantity of government is of
greater importance than quality. It seems America's high
mission to fulfill vicariously this quantitative service for the
world in its transition from despotism to democracy. In the
earlier history of the American States there was little real de-
mand for government of any sort, but as a rule each State was
supplied with two separate legislative chambers supplemented
in some cases by an executive council. Tiie English practice
of minute statutory legislation was adopted. States and Nation
were each supplied with distinct sets of independent govern-
mental machinery. N(H only so, but towns and cities were
likewise, for a time, pro\'ided with governments after the same
model. Comparatively small cities were organized wilh city
legislatures having two houses, and with independent executives
and judiciaries. This governmental machinery was again
duplicated by local, state, and national party organizations,
through whose agency poi)ular election was svibstituted for the
constitutional method of choosing the President of the Republic.
In many ways the parties assumed and exercised goxernmeiilal
functions. Numerous corporations have also been called into
existence which apjjropriatcd go\ernmental powers. Tlie
i
ROMAN LAW AND MODERN GOVERNMENT 589
American system, moreover, forces the judiciary into the thick
of the fight in partisan or contentious politics. Thus the
entire government in its manifold forms has been engaged in
the gathering of experience for the future democracy. From
the standpoint of mere quantity nothing more could be desired.
The one purpose of finally making sure of popular control of
the government as a means of securing all rights, has constantly
become more determined and more clearly defined.
The Americans adopted the three English innovations upon
the Roman system and added thereto a notable innovation of
their own. Not only did they make the executive amenable to
the ordinary courts, but they gave to the courts the power to
nullify acts of the legislature. The judges are the final interpret-
ers of the Constitutions. If in their judgment a legislative act
violates the Constitution, they declare the act void in case its
constitutionality is questioned. This feature has led to the
development of an extensive body of Constitutional law de-
rived from judicial decisions. In no other country are the
political powers so adjusted as to render possible the develop-
ment of such a body of public law.
The French Legal System. — The United States is not alone
in the attempt to create a legal system designed to enable the
people to govern themselves. France also entered upon the task
the very year that the American Constitution went into effect.
A brief comparison of the two results is given in a previous
chapter. A few points are recalled here because of their relation
to the contrasted method of English and Roman government.
France is becoming democratic with a minimum of departure
from the Roman system. In the southern provinces the influence
of Roman law survived throughout the feudal period and gained
new life as feudal power diminished. One of the first demands of
the Revolution was the restoration of Roman Law and the re-
sponse is found in the Civil Code and four minor codes issued by
Napoleon during the years from 1804 to 1810. This Napoleonic
legislation is a modern summary of Roman Law comparable to
the Justinian legislation of the sixth century. At the same time
a series of courts was organized to administer these codes.
The organization is thoroughly Roman in form.
An Act of 1790 forbade the judges to entertain any charge
against a public officer. The French place confidence in their
590 COMPARATIXE FREE GOVERNMENT
administrative officers and protect them from any interference
on the part of the judges. Under the Third Republic special
administrative tribunals have been established to hear com-
plaints against public officers and to assist in the administration
of public law. Referring to these tribunals, President Poincare
says : " Administration and justice are two separate domains.
The better to ensure their reciprocal independence, the disputes
arising out of the execution of the commands of the administra-
tive authorities are not submitted to the judicial authorities.
A Minister or a prefect issues an order. If this order is illegal
the Government may be interpellated in the Chambers, but the
civil courts will not have the right to annul the order. It is
not their place to judge the executive power nor its officials.
This is a principle which was solemnly proclaimed by the
Revolution." ^ The French system is a continuation of the
Roman system in that it exempts the executive from judicial
interference, but the Romans did not provide for an " inter-
pellation in the legislature," nor did they set up tribunals whose
special business it was to hear complaints against the executive.
The French plan implies practically two sets of courts, one to
administer the ordinary law and the other to decide questions
arising out of the rapidly accumulating administrative law.
It becomes impossible always sharply to distinguish between
private and public law, and a Tribunal of Conflicts has hence
been established composed of judges from the high court and
from the highest administrative tribunal. It is the duty of
this court to harmonize the administration of private and public
law and to decide doubtful cases involving both jurisdictions.
In the making of laws the P>ench likewise follow the Roman
.system. Statutes are couched in general terms, and Ihe executive
is required to amplify llu-ni, to issue ordinances exi)]aining their
meaning, and to modify tlnni to meet the various exigencies of
administration. This is all distinctly Roman. But the two
houses of the legislature are lOnglish rather than Roman. As
French democracy becomes more self-conscious and insistent
the importance of debate in the houses becomes more apparent.
It should be borne in mind that both the English and the French
legislative innovations upon the Roman method are of com-
paratively recent origin. In luigiand the changes arose from an
* Poincar^, " How France is Governed," p. 270.
ROMAN LAW AND MODERN GOVERNMENT 591
unconscious striving after a more tolerable government; in
France from the first crude attempts at a revolution whose
purpose was only partially attained.
The French revolutionists proclaimed the doctrine of popular
sovereignty, but their method of realization has been the adapta-
tion of the Roman system to the needs of the democracy. The
United States substitutes a radically different plan. Private
law, as such, is abolished. In its place State and federal con-
stitutions are made a guaranty for all legal rights. Public
officers of every sort are engaged in the elaboration of a political
scheme which will in the end secure to the people their private
rights. But many of these private rights are made dependent
upon the previous satisfactory adjustment of the relation of the
States to the Union, and of the various departments of govern-
ment to one another and to the people.
The future of free government is the more secure because the
two great republics of the world illustrate distinct and diverse
methods of approach. They are at one in the declaration of
the principles of popular sovereignty, but the United States
repudiates ancient forms and lays anew the foundations of the
state in a popularly enacted fundamental law, while France
adapts the ancient forms to modern needs.
The constitutions enacted in all countries since 1789 have
been greatly influenced by that of the United States, many
of its features having passed into other constitutions. French
codes of law have also influenced subsequent legislation in all
parts of the world. Latin republics in the New World have
copied with modifications the Constitution of the United States
while adopting the French civil code. As is shown in later
chapters, a marked tendency appears among them to follow
French models in the final organization of their governments.
REFERENCES
An Analysis of the System of Government Throughout the British Empire, pp.
43-53- Macmillan.
Bryce. Studies in History and Jurisprudence, Essays II, XV.
Bryce. The Holy Roman Empire.
SoHM. Institutes of Roman Law, Tr. by Ledlie, Edition 1907, Introduction
by Grueber, and Chaps. I, II ; Part II, Chaps. I-III.
Wilson. The State, Chap. XIII.
GERMANY
CIL\PTER L
The Origin of the German Empire
Charlemagne (768-814) founded a great empire including the
greater part of Italy, the whole of France, and much of the
present dominions of Germany and Austria. In the year 800
Charlemagne received at the hands of the Pope the crown of
the Ca'sars and thereby became the head of the Holy Roman
Empire. The old Roman Empire had become Christian in 325
A.D. ■ As the secular power of the Caesars decreased the spiritual
power of the Popes increased. The Church bore no small share
in binding the emjMre together under its spiritual rule. It took
over a considerable part of the government. Roman law was
already a perfected system. The Church appropriated Roman
law and adapted it to its own needs. Canon law, or the law of
the Church, became an important part of modern Roman law.
The conquering barbarians were rapidly converted to Christian-
ity. In the transition from heathenism to the religion of Rome
the idea of a world emj)ire wiih just laws divinely sanctioned
took definite form. Of this Empire the Pope of Rome was the
spiritual head, and the dynasty of the Caesars the temporal
head. It was to be a holy and righteous empire which was to
give peace and order to the entire world.
Origin of the Holy Roman Empire. — The temporal office
was transferred to Constantinople, but the spiritual ofTice re-
mained in Rome. The fiction of a world dominion was still
maintained even after the entire west was subjected to Teutonic
conquerors. The popes continued to acknowledge the Byzan-
tine emperors as the secular heads of the Holy Empire. After
Justinian (^527-565) the I'-asiern Empire rapidly declined.
When Charlemagne entered tiie city of Rome with a conquering
army, in 800 a.d., there was a vacancy in the offRe at Con-
5y2
k
THE ORIGIN OF THE GERMAN EMPIRE 593
stantinople, and the symbol of the secular unity of Christendom
was transferred from Constantinople to Paris.
The idea was grand and inspiring. A just system of private
law was already an accomplished fact. If, under the sanctions
of reUgion, order could be established among the rulers of all
nations, the predicted millennium would have been fulfilled.
Many obstacles stood in the way of immediate realization of
the ideal. Popes and secular rulers seldom agreed as to the
respective limits of their powers ; instead of harmony there was
perpetual conflict. The Empire of Charlemagne terminated
at the death of his son in 843 by a division into three parts.
France and Germany became permanently separated. The
Empire was at no time coextensive with the Roman Church.
After the division independent states were formed in France
and Italy and the Holy Roman Empire became in practice a
local German Empire, though it retained some of the mythical
symboHsm of the unity of Christendom.
The ofBce of Kaiser, or Emperor, was at no time clearly
defined. It passed partly by inheritance, partly by the choice of
the imperial diet, sometimes by papal influence to one or another
of the rulers of German States. In 1438 the oflfice became per-
manently associated with the house of Hapsburg, the rulers
of Austria. It was contrary to the theory of the office that the
Emperors should confine their authority to a single State or
part of Christendom, but, except among German States, they
had little influence. In Germany the Emperors could not form
a strong centralized government ; they had, however, influence
enough to prevent the formation of strong rival governments.
The imperial office furnished a nucleus for a loose confederation
of petty kings and princes.
In the German States local tribal law or special state statutes
took the place of the ancient law. Frederick Barbarossa
(1152-1190) and other imperial officers favored the introduction
of Roman law. Roman jurisprudence was taught in the univer-
sities. Roman law was continuously administered in northern
Italy from the downfall of the old empire, and in 1495 it was
introduced from Italy into Germany. The local laws were
not entirely displaced and the two systems were administered
concurrently. The educated classes became indoctrinated with
the principles of Roman justice.
594 COMPARATIVE FREE GOVERNMENT
During the century following the introduction of Roman law
Germany was disrupted by the religious Reformation. Part
of the States became Protestant while the others remained
Roman CathoUc. Germany bore the brunt of the religious wars
of the seventeenth century and at the end of the Thirty Years'
War (1648) much of the country had become depopulated.
By the Treaty of Westphalia (1648) the leading nations of
Europe recognized both Protestant and Catholic states and
small states were guaranteed independence. The idea of in-
ternational right based upon agreement between numerous
sovereign states displaced the older idea of imperial unity.
The Holy Roman Empire thus ceased to be even a symbol of
the unity of Christendom.
Out of the ruin wrought by the religious wars Prussia arose to
a position of eminence in the north and became a counterpoise
to Austria in the south. Prussia and Austria included a mixed
population of Slavs and other alien races, while the smaller
western States were more distinctly German. Germany thus be-
came divided ; the two great rival States having mixed popula-
tions composing one part, the group of smaller States the other.
These few facts furnish a basis for the explanation of modern
Germany. It was undoubtedly conducive to national pride
that for so many centuries the German Kaisers as successors to
the Roman Caesars typified the unity of Christendom. In
harmony with the same ideal was the study of Roman law and
its introduction as a part of the law of the land in 1495. The
comparative independence of numerous states led to the or-
ganization of a number of active and vigorous universities.
Within the dominions of the Holy Roman Empire the spirit of
religious reform became rife almost as early as in England.
Germany became the heart and soul of the Great Protestant
Reformation. Along with the Reformation came the best
system of general education in any part of Europe. Founda-
tions were thus laid for a unified language and a great literature.
These and many other forces tended to the formation of a great
state. National asj)irations, however, found no adequate means
of political expression.
Influence of the French. — Educated Germans were pro-
foundly affected by the luiropean movement which found ex-
pression in the French Revolution. Many Germans became
THE ORIGIN OF THE GERMAN EMPIRE 595
republicans, States adjoining France being especially infected
with liberal sentiments. The Napoleonic codes of Roman Law
were adopted by many German States, superseding the older
Roman Law which had been the common law of the States,
but was for the most part discontinued with the advent of Prot-
estantism. The older law had become associated with Roman
tjo^anny, while the new French law implied greater freedom and
equahty.
In 1804 Napoleon assumed the title of Emperor of the French.
He had already made himself master of a considerable part of
Europe. Two years later Francis II of Austria resigned his
imperial office and retained simply his hereditary dominions
under the title of Emperor of Austria. ^ This terminated the
Holy Roman Empire and Austria became simply one of the
German States. For Napoleon the ancient Roman title carried
with it the idea, not only of conquest, but of a reorganized and an
improved government. His system of laws was temporarily
imposed upon Germany. Three hundred petty dominions in
northern Germany were reduced to less than forty. Napoleonic
pressure also induced the King of Prussia and other German
rulers to inaugurate great and far-reaching reforms, but the great
mass of the peasantry were still serfs, bound to the soil.
While France was creating a new system of land tenure upon
the ruins of the old, educated reformers, of whom Baron Stein
was chief, were making a profound study of the needs of Ger-
many. A comprehensive plan of reform was perfected, involving
not only the liberation of the serfs and changes in land tenure,
but also improvements in local government in town and country.
Frederick WiUiam III, the autocratic King of Prussia, stood
like a stone wall against the proposed reforms, but when, finally,
in 1807, Napoleon was threatening the complete destruction
of Prussia, the opposition of the King gave way and Baron Stein
became chief minister of state. From Prussia the reforms
extended to other States and in 18 13 she became an cilective
leader in the war of liberation from Napoleonic rule.
A More Perfect Union. — Germany's great need was for some
adequate means of giving expression to German public opinion.
The consciousness of common interests among the States had
been growing for centuries. The wars of liberation from Na-
' Bryce, " The Holy Roman Empire," p. 366.
596 COMPAR.\TIVE FREE GOVERNMENT
poleonic rule greatly intensified the national spirit. To render
effective the pending reforms called for a central government.
At the end of the Napoleonic wars (1815) conditions favored a
united Germany under a liberal government. A new federation
was formed. Many of the smaller States adopted constitutions
providing for parliamentary governments. But the two most
powerful States, Austria on the south and Prussia on the north,
clung to the old absolute monarchy and through their influence
free government in the other States was suppressed. The
fact that Austria and Prussia contained a mixed population of
aUen races increased the difficulty of union. The States of the
west made various attempts to form an exclusively German
state with a liberal government. All such efforts were brought
to naught by the overpowering despotic States. Both Austria
and Prussia gave effective support to the reactionary monarchial
party in each State. The princes were restored to full power.
The Diet, the only organ of the Confederacy, was controlled
by the absolute monarchies. Free government in the small
States was treated as revolutionary. A strict censorship was
established over the teaching in schools and universities, and
over the public press.^ Public meetings were forbidden except
under police control. The enemies of democracy everywhere
gained control of the actual agencies of government ; no op-
portunity was given for the people to acquire practical political
experience. Agitation, however, was continued, and as a result
of the popular uprisings of 1848 both Austria and Prussia were
induced to acce])t constitutions which recognized i)opular rights.
But the Austrian concessions were at once rei)udialed and the
Prussian Constitution was so modified and so interpreted as
to retain supreme power in royal hands.
The revolutions of 1848 greatly weakened the confederation,
which included both Austria and Prussia. An insistent demand
had arisen on the part of the Liberals that a federated state
should be formed to take the i)lace of the existing loose con-
federation. Delegates from all the German States met at Frank-
fort in 184S to [)rovide for a more perfect union, and a liberal
Constitution was formulated. The majority of the conxention
was unwilling to admit Austria to the union with all her non-
German provinces, and Austria was unwilling to divide her em-
' Scignobos. "A Political History of Contemporary Europe," Vol. I, p. 385.
THE ORIGIN OF THE GERMAN EMPIRE 597
pire for the sake of membership in the union. A decision was
finally reached to exclude Austria and to offer to the King of
Prussia, with the title of Emperor of the Germans, the chief
place in the new federated state. Frederick Wilham IV had
masterful views concerning the divine right of rulers. He
believed that the people had no right to usurp divine authority
in the choosing of kings and emperors, and he therefore refused
to accept the office at the hands of a representative assembly.
All efforts to obtain a national representative government
failed, and the old, discredited confederation was continued
with Austria in control.
The King of Prussia was induced through fear of violence to
issue a constitution in January, 1850, which is still in force.
It emanates directly from the monarch and involves no form of
ratification or acceptance on the part of the people. Many of
its articles are taken from a liberal constitution which a repre-
sentative assembly had approved ; but they are so selected and
are so interpreted as to leave the royal will supreme. The
Upper House of the Prussian legislature is composed of appointees
of the king. The members of the Lower House are elected in
separate districts by universal manhood suffrage ; the method
of electing, however, gives the actual choice of members to the
rich. The election is indirect. Three sets of electors, equal in
number, are chosen at a primary election. The wealthy voters,
who pay one third of the taxes, choose one third of the electors.
The poor, who are a large majority of the voters, elect a third of
the electors. The moderately wealthy elect the remaining third.
By this process one tenth of the voters may secure a two-thirds
majority in the electoral college which names the members of the
Lower House in the legislature. Moreover, the numerous
officers in the public service are admonished by an imperial
rescript interpreting the Constitution that they are to support
the government at elections.^ With one house directly subject
to the dictation of the king and the other thus hedged about and
restricted it would seem impossible for the people to gain control
of any official agency. Yet such was the popular reprobation
of the arbitrary rule following the promulgation of the Consti-
tution that the party of opposition to the Crown did gain control
of the Lower House in 1S61.
' Below, p. 600.
598 COMPAR.\TIVE FREE GOVERNMENT
The King, Frederick William IV, became permanently insane
in 1858 and his brother William ruled as regent until the death
of the King (1861). William I had for many years been exceed-
ingly unpopular on account of his opposition to reform. For a
time he was expatriated. His insistence upon a greatly amplified
and reorganized military system had aroused great opposition
during the regency (1858-1861). On assuming the crown
William I gave expUcit expression to the traditional doctrine of
the Dynasty, declaring that the crown was a direct gift from
God to the royal house and that the monarch had no right to
submit to dictation from the representatives of the people.
The Lower House refused to vote approval of the military
budget and after repeated dissolutions became practically unani-
mous in opposition to the King. There seemed no reason to
doubt that the legislature expressed the sentiment of the people,
and rather than submit to the popular will as expressed in the
Assembly William I determined to resign his office. He was,
however, induced to reconsider that decision and to call upon
Prince von Bismarck, a notorious opponent of parliamentary
government, to organize a lighting ministry in support of the
Crown.
The Policy of Blood and Iron. — On assuming the office of
Chancellor, Bismarck gave expression to a matured policy for
securing German unity. " The unity of Germany," said he,
" is to be brought about, not by speeches nor by votes of majori-
ties, but by blood and iron." ^ The Prussian army, not Prussian
liberalism, was to unite Germany. For several years the govern-
ment was conducted in utter disregard of the hostile assembly.
A war against Denmark was waged in 1864 for the conquest
of Schleswig-Holstein. In 1866 was waged a brilliantly suc-
cessful war against Austria. This made an end of the Con-
federacy of 18 1 5.
With Austria .severed from the rest of Germany it Ijccame
possible to organize a federated German state under the leader-
ship of Prussia. To this end, a constitution was formulated
and accepted by a majority of the States in 1867. With the
army triumphant, a Prussian Legislature was elected which
voted approval of past acts and sustained current policies of the
government. Four important States held aloof from the federa-
• Scignobos, "A I'olilical llisl<jry of ContcmpDrary ICuropc," Vol. II, p. 461.
THE ORIGIN OF THE GERMAN EMPIRE 599
tion. They were, however, induced to unite in the war against
France in 1S70 and after the triumph over Napoleon III, all
the States joined the Union. At Versailles, January i, 1871,
WiUiam I, King of Prussia, was crowned President of the Em-
pire with the title, German Emperor. The Constitution of 1867
was transformed into a frame of government for the Empire.
Thus Bismarck's promise was literally fulfilled ; Germany was
united by a poHcy of " blood and iron."
Royal Interpretation of the Constitution. — The Constitution
of Prussia and the Constitution of the Empire have been
formed by those who were actively opposed to parliamentary
government. Every attempt on the part of the people to achieve
liberty of action has been brought to naught. Serfs have re-
ceived emancipation as the gracious gift of absolute rulers and
from the same source has come the right to vote. When Bis-
marck, in 1866, expressed a willingness to have one house of
the -proposed Legislature composed of delegates elected by
universal suffrage from all parts of the Confederation, the prop-
osition seemed to be in flat contradiction to all his previous
policies. It was, in fact, the Chancellor's highest bid for a
united, Prussianized Germany. He needed popular support
to compel the other German monarchs to submit to the rule of
the King of Prussia. By means of this provision in the Constitu-
tion of the Confederation liberal sentiment was conciliated.
But it was still far from Bismarck's intention that the people's
representatives should govern the Empire. Germany was to be
ruled by Prussia, and Prussia was effectively controlled by the
army and the bureaucracy. By means of the army, opposition
in the Prussian legislature had been overcome. Bismarck's in-
tention is made clear by an order issued in 1882 explaining
Article 44 of the Prussian Constitution, which reads : " The
King's Ministers are responsible. All government acts (docu-
mentary) of the King require for their validity the approval of
a minister, who thereby assumes responsibility for them." ^
The liberals maintained that this article was a guarantee for
parliamentary government. A rescript was issued by William I
signed by Bismarck to correct this interpretation. It emphati-
cally denies that ministerial responsibility deprives the monarch
of complete independence of action. The significant clause
1 Lamed, "History for Ready Reference," Vol. I, p. 5g8.
6oo COMPARATIVE FREE GOVERNMENT
reads : "It (the liberal interpretation) is therefore not admis-
sible, and leads to obscuration of the constitutional rights of
the King, when their exercise is so spoken of as if they emanated
from the Ministers for the time being responsible for them, and
not from the King himself. The Constitution of Prussia is the
expression of the monarchial tradition of this country, whose
development is based on the living and actual relations of its
Kings to the people. These relations, moreover, do not admit
of being transferred to the Ministers appointed by the King,
for they attach to the person of the King. Their preservation,
too, is a political necessity for Prussia. It is, therefore, my will
that both in Prussia and in the Legislative Bodies of the realm
there may be no doubt left as to my own constitutional right
and that of my successors to personally conduct the policy of my
•Government. ... It is the duty of my IVIinisters to support my
constitutional rights by protecting them from doubt or obscura-
tion and I expect the same from all State servants who have
taken to me the ofl&cial oath." ^ The rescript further states
that all officers shall refrain from all agitation against the
Government and vote for those who support government
policies or be removed from office. It is to be noted, also, that
the principle here announced is applied not only to Prussia, but
to all officers and official bodies in the Empire. The royal in-
terpretation is thus placed in apparent contradiction to the
words of the Constitution, and the principles of democracy
are distinctly repudiated.
In a book on " Imperial Germany " written a hundred years
after the war of liberation Prince von Biilow says : " In the
German Empire, Prussia is the leading State. 'J'he Social Dem-
ocratic movement is the antithesis of the Prussian State. . . .
The peculiarity of the Prussian State, which is the backbone of
our political life, makes a solution of the Social Democratic prob-
lem [)articularly difficult for us. The practical modus vivendi
with the Social Democrats, that has been attempted here and
there in Southern Germany does not seem possible in Prussia.
Prussia attained her greatness as a country of soldiers and
officials, and as such she was able to accomplish the work of
Cierman union; to this day she is still in all essentials a State
of .soldiers and officials." '^
' f..irncil, "Fli-^lury for Ready Reference," Vol. I, p. 6oi.
» von Hulow, " Imperial (lermany," p. 226.
THE ORIGIN OF THE GERMAN EMPIRE 6oi
This utterance of Prince von Bulow summarizes the points of
chief interest in the relations of the Empire to free government.
First, it points out that the Prussian government is opposed by
the Prussian people. Second, it contrasts Prussia with the more
liberal German States. Third, it emphasizes the military as
opposed to civil authority. Germany exhibits on a grand
scale the age-long conflict between autocracy and democracy.
REFERENCES
Bismarck. The Man and the Statesman; Reflections, etc. by Himself.
Bryce. The Holy Roman Empire, Edition 1887, Chap. XIX, and Supple-
mentary Chap.
BiJLOW. Imperial Germany.
Howard. The German Empire, Chaps. I-VII.
Ogg. The Governments of Europe, Chap. IX.
Seignobos. a Political History of Contemporary Europe, Vol. II, Chaps.
XIV, XV.
SoHM. Institutes of Roman Law, by Ledlie, Edition 1907, Part II.
Wilson. The Stale, pp. 191 ff., 1896.
CHAPTER LI
The Present Constitution and Government
To complete the union of the German States it was necessary
in the first place to determine the relation of the State of Prussia
to the proposed government. This was done by giving to the
Prussian King the office of President of the Federation.
William I wished to be crowned Emperor of Germany, but the
other rulers, jealous of their own rank, refused to accede to his
desire. A compromise was effected which gave to the President
the title of Deutscher Kaiser — German Emperor. The
German union is not itself a monarchy, but a federation of
monarchs and free cities under a President having the title of
Kaiser, and the King of Prussia is ex officio Emperor.
The Frame of Government. — The second object to be
attained was a united governing body for the twenty-two
monarchies and the three Free Cities. Through the creation
of the Bundesrath, a Federal Council of fifty-eight members,
this was accomplished. In the council Prussia has seventeen
members with seventeen votes ;' Bavaria has six ; Saxony
and Wiirtemburg four each ; Baden and Hesse three each ;
two other States have two each, and all the rest one each.
The Bundesrath is not what is usually called a deliberative
body, but rather an asseml^ly of delegates appointed by the
princes of the States and the Senates of the Cities, who act
under instructions from ihc rulers who appoint them. If a
Slate is entitled to more than one vote, all the votes are cast
by the head of the delegation. For instance, the six votes of
Bavaria are cast by the King of Bavaria. The " unit rule " in
voting prevails. On nearly all questions a simple majority is
reciuired to bind all the States. The assembly of delegates is
designed to cn.ihlc llic nionarchs to control all (l(-'|)artnu'iils of
' Thri-c aflditional votes are (onlrollcd by Prussia. — Lowell, " (iovcrnmcnts
and I'arlics in Continental Europe," Vol. I, p. 260.
O02
THE PRESENT CONSTITUTION AND GOVERNMENT 603
the government, legislative, administrative, and judicial.
Though the Constitution concedes to the popular House the
right to initiate legislation, in practice all important measures,
including taxation, originate in the Bundesrath. Bills prepared
there are submitted to vote in the Reichstag, and the members
of the Upper House are expected to enter the Lower House
freely, seeking to persuade its members to adopt the measures
proposed.
The growing sense of nationality among the people was recog-
nized in a representative Assembly — the Reichstag — ■ elected
by secret ballot, all male citizens twenty-five years of age having
a right to vote. The Constitution assigns one member for every
100,000 inhabitants.^ The election is by single districts and
each district must lie wholly within a single State. When the
Constitution was adopted there were 382 districts entitled to
one member each in the Assemblies ; in 1873 15 were added for
Alsace-Lorraine. In the distribution Prussia receives 236,
while a number of the States have but one each. No redistri-
bution of seats has taken place since 187 1. The number re-
mains 397 and great inequality prevails. Growing centers of
population, such as Berlin, for example, have only a small pro-
portion of the representation to which they are entitled. The
term of office in the Reichstag is five years, though the House
may be dissolved by the Emperor with the consent of the
Bundesrath.
These institutions form the framework of the Imperial
Government. To Prussia as the leading kingdom is conceded
the office of Emperor. The Bundesrath is the agent of the ruling
powers of the various States, and the Reichstag is a concession
to the people of a voice in the government. From many points
of view the Constitution is unique and most interesting. Only
those features of the government can be discussed here which
appear to throw light upon the conflict between autocracy
and democracy.
The Chancellorship under Bismarck. — As shown in the pre-
ceding chapter, the office of Chancellor of the State of Prussia
came into prominence as an agency for resisting the threatened
development of parliamentary power. Through the astute
Bismarck as Chancellor, the Prussian State became subservient
_ • Howard, " The German Empire," p. 85.
6o4 COMPARATIVE FREE GOVERNMENT
to the Crown. The Imperial Constitution of 1871 was so
drawn as to imply that the Imperial Chancellor should be the
same person as the Chancellor of Prussia and should fill a
corresponding place in the general government. The office
was created by Bismarck to be filled by himself, that he might be
at the same time the head of the Prussian ministry and the sole
responsible administrator of the Empire.
To the Imperial Chancellor is assigned the duty of presiding
over the meetings of the Bundesrath. It was Bismarck and
not the Kaiser who actually controlled the one assembly of
highest authority. His duties and powers as chairman of that
body are numerous. He arranges the order of business, re-
ceives petitions, and may appoint a Vice Chancellor to preside
in his place.
While the Constitution does not declare in express terms that
the Chancellor and Vice Chancellor shall always be members
of the Prussian delegation to the Bundesrath, yet such is the
implication and such has been the practice. With the full
power of the great State of Prussia, the Chancellor wields a
tremendous influence over legislation. He is chief sponsor
for government bills; as a member of the Bundesrath he
has free access to the Reichstag, and in some way he secures
majorities in the popular assembly for the measures of the gov-
ernment.
Orders and decrees issued by the Kaiser are countersigned by
the Chancellor, who thereby becomes responsil)le for their
execution. All administrative business is in his hands. The
heads of departments, though in form appointed by the Kaiser,
are in fact chosen by the Chancellor and are subject to his com-
mands. All officers in the administrative service arc likewise
subject to his orders. The prerogatives of the Kaiser are, in-
deed, exercised by the Chancellor.
Relation of the States to the Central Government. — The
separate Stales flo, howex'er, in practice, limit the j)ower and
res[)onsibility of the Chancellor, since a large j)roportion of the
laws passed by the Imperial Legislature are left to them for
execution. All ci\il, criminal, and commercial codes adopted
for the Kmj)ire are executed by the individual States. At the
.same time it is the duty of the Kaiser to supervise the action
of state officers in executing federal laws. But this too is done
THE PRESENT CONSTITUTION AND GOVERNIVIENT 605
through the Chancellor. So long as state officers satisfactorily
administer Imperial laws they are independent of the Chan-
cellor. But if a State fails in that respect, it is the Chancellor's
duty to bring the matter before the Bundesrath, and that body
may order an execution. In such a case the Chancellor has the
Imperial army at his command for coercing the State into com-
pliance with the laws.
To understand the obvious contrast between the German
and American types of federation one must recognize the funda-
mental difference between the Roman and the Anglo-Saxon
legal systems previously described. The German Imperial
Codes deal mainly with private rights. Many of the States
had been long accustomed to administer the Code Napoleon,
and the codes which were substituted in the Empire were similar
in both form and substance. It is natural that the Roman Law
Codes should continue to be administered by state officers.
But the decentralized administration is by no means restricted
to the defense of private rights. Laws pertaining to Imperial
taxation, banks, insurance, labor organizations, etc., which are
enacted by the general legislature are executed by the separate
States. Bavaria and Wurtemburg secured especial conces-
sions in respect to postal and telegraph service. These constitu-
tional provisions testify to the jealousy of the States in guarding
their administrative independence. Although the Empire is
highly centralized in legislation, the States have retained a wide
range of administrative power.
It is clear, however, that the limitations upon the authority
of the Chancellor arising from the decentralized administration
are more apparent than real. In the first place it must be re-
membered that nearly two thirds of the people of the Empire
live in Prussia, and that Prussian and Imperial legislation are
in the same hands. So far as Prussia is concerned, separate
state power is favorable to the autocracy because of the restricted
Prussian franchise. In the other States also Imperial control
is maintained by the reservation of important administrative
business immediately in the hands of Imperial officers. Such
are the entire foreign service and the management of naval
affairs. The Prussian army system is extended into every
State and, with slight concessions to state authorities in the
matter of appointments, the Emperor controls the military
6o6 COMPARATIVE FREE GOVERNMENT
forces. Postal and telegraph officers subject to the will of the
Kaiser carry Imperial influence into every part of the country.
Add to all this the power of the Imperial Chancellor to interfere
in all matters affecting the interests of the Empire, and it is
plain that the spirit and methods of the Prussian bureaucracy
effectively prevail in every State. The whole country has
been essentially Prussianized.
King, Chancellor, and People. — The Imperial Constitution
grew directly out of the contest between King and people in the
State of Prussia, and by making Prussia the controlling member
in a union of German States it has become possible thus far to
eliminate thoroughly the people from any effective share in
the government. There can be no doubt of the intention of the
framers of the Constitution to continue to maintain and extend
this autocratic dominion. By the rescript quoted above,^
which was issued eleven years after the adoption of the Constitu-
tion of 1 87 1, the principle of autocracy is specifically reaffirmed
and every vestige of parliamentary government repudiated.
Prince von Billow declares : " He [Bismarck] held the reins of
Government with such an iron grip that he never ran any risk
of letting the least scrap of power slip into the hands of Parlia-
ment." " The German Constitution is a constitution by the
autocrat and for the autocrat. King, Chancellor, Kaiser
were three in one, and, so long as the Old Emperor and Bismarck
belonged to the trio, that one was the Chancellor. It was
Bismarck who had restored to the Prussian King his crown when
he had determined to surrender it. He it was who had welded
the German States into a mighty Empire and had created the
new title of Kaiser. Until the death of William I, in 1888, King
and Chancellor ruled as one man.
Necessarily the Constitution, in form, i)laccs the authority
in the Kaiser's hands. None of it whatever pertains of right to
the Chancellor. He is the Emperor's chief ministerial officer,
ai)j)ointcd by him, removable at his will, and resjjonsible to him
alone. Yet in the eyes of the public Bismarck held a position
not inferior to that of the Kaiser himself as the recognized cus-
todian of Imperial authority. The Emperor Frederick is under-
stood to have Ijeen favorable to parliamentary government;
but to inaugurate a policy Inisefl uj)()ii that principle would have
' i'. 'XX). ' von Biilow, " Im|)crial Germany," New York, 1914, P- 175.
THE PRESENT CONSTITUTION AND GOVERNMENT 607
involved a break with Bismarck. The Emperor's illness and
untimely death forestalled a change in policy.
William II came to the throne imbued with high notions con-
cerning the divine right of the Hohenzollern Dynasty, but
Bismarck had discouraged any flaunting of dynastic pride. As
defined by the Constitution the Kaiser's oiBce is simply that of
President of the Empire. The third incumbent has magnified
his office. He has effaced the distinction between King of
Prussia and the German Kaiser, and has compelled other mon-
archs of the Empire to submit to a dominion which they repudi-
ated in the beginning when they accepted the Constitution.
Bismarck was dismissed from office in 1890, and a foreign policy
which had been consistently condemned by the old Chancellor
was inaugurated. William II rules in his own name ; he has
never permitted a minister to overshadow him or seriously to
detract from his royal prestige. The possible permutations in
the relations between Kaiser and Chancellor are by no means
exhausted. The first Chancellor humiliated a legislature and
exalted a King. It is not impossible that a future Chancellor
may humiliate a Kaiser and exalt a popular assembly.
The Constitution of 1871 is still the law of the land and im-
plies, without explicitly so stating, that the Imperial Chancellor
as a Prussian minister is a member of the Prussian delegation in
the Bundesrath. As the head of that delegation he controls,
under the King's direction, one third of the votes of that assem-
bly. Other rulers of States are likewise accustomed to send their
chief ministers as delegates. It follows, therefore, that those
who participate in the enactment of Imperial statutes are, as
State officers, active in their execution.
Administrative and Judicial Functions of the Bundesrath. —
The Bundesrath itself likewise has important administrative
functions. Its consent is necessary for a dissolution of the
Reichstag. It shares with the Kaiser the treaty-making power.
Except in case of invasion, the Kaiser must have its consent to a
declaration of war, and it shares in the making of appointments.
Twelve committees of the Bundesrath are appointed each year
to cooperate with the Kaiser in Imperial administration. Those
upon the Army and Navy are named by the Kaiser. Of all the
committees except the one on Foreign Relations the chairman-
ships belong to Prussia and arc filled by the King of that State.
6o8 COMPARATIVE FREE GOVERNMENT
The committees correspond in general to the various adminis-
trative departments, and it is their duty to furnish information
for the guidance of the executive.
In the description of the French government it was shown
that an Executive Council and various other administrative
officers perform the duty of amplifying the statutes, explaining
their meaning and issuing ordinances for their more effective
administration. In Germany this woric is divided between the
Emperor and the Bundesrath. In the first instance the power
to issue ordinances rests with the Bundesrath, but by statute
the Emperor is empowered to put forth ordinances in specified
lines of administration. Hence, the same authority that
initiates projects of legislation requiring the approval of the
Reichstag for their validity also issues supplementary orders
which are valid without further sanction.
Germany is in form a federal state in which twenty-five
States composing the Empire share with the general government
the power of legislation on the same or allied subjects ; in which
the statutes and ordinances of the general government are
executed and adjudicated by officers of the separate States ;
in which Imperial officials bound to obey the Kaiser deal with
the same subjects as do the local officers subject to the orders
of local chiefs. Inevitably, numerous occasions must arise for
clashing between authorities. In contests involving private
rights disputes are usually settled in the ordinary courts of the
State. Yet, if serious delinquency is alleged so that justice is
denied, the cause may be carried to the Bundesrath. It is the
Bundesrath that issues the order for the coercion of a State.
Disputes l)ctween States may also be settled or adjudicated in
that body. And in case of any sort of disagreement which finds
no other means for adjustment recourse is had to the one insti-
tution which represents all the sovereigns united in the Empire.
Thus far the Bundesrath has been controlled by Prussia in
the interest of autocracy ; but should democracy gain a pre-
dominant influence in the States, a new type of delegate would
be sent to it. Without essential change in the letter of the
Constitution, the present ruling Ixxly might become so organized
as to serve the democracy in matters jiuHcial and administrative,
while in respect to legislation it would be transformed into an
innocuous or compliant " L'pi)er House."
THE PRESENT CONSTITUTION AND GOVERNMENT 609
The Popular Assembly. — The Reichstag is at present the
one check upon an autocratic government. Its members are
elected by secret ballot in 397 districts, each district choosing
one member. The Constitution says that the members of the
Reichstag shall be representatives of the entire people ; they
are not subject to local instruction as delegates from individual
States. The institution is thoroughly national. It has power
to organize itself, to adopt its own rules of procedure, and to
discipline its own members. Votes and utterances in the
Reichstag are not to be called in question elsewhere. The
meetings are public and " truthful reports " of proceedings are
permitted. Members have immunity from arrest or legal in-
terference during sessions. To dissolve the House before the
end of the frve years for which members are elected requires
the consent of both Kaiser and Bundesrath, and a new House
must be elected and assembled within ninety days. During
the session the Emperor may adjourn the meetings for a single
period of thirty days. The Constitution gives to the Reichstag
the right to originate legislation, as well as to approve or reject
measures presented by the Bundesrath. Oddly enough, mem-
bers of the Reichstag are permitted to accept office and still
remain members of the House if reelected by their constituents.
This rule is identical with that followed by the British House
of Commons in respect to cabinet appointments.
As compared with the popular assemblies of other countries
one notable weakness appears in the Reichstag. It has not the
exclusive right to originate money bills. Article 35 of the
Constitution specilles a long list of sources of Imperial revenue,
such as customs, the taxation of salt, tobacco, etc. The income
from these sources not even the Bundesrath has power to with-
hold from the treasury. A proposition to diminish such taxes
may be vetoed by the presiding officer of that Chamber, that is,
by the Chancellor, as instructed by the King of Prussia. For
additional support to the treasury an annual grant is required,
but the Constitution is not clear as to the rights of the Lower
House in voting supplies. All expositors agree, however, that
a levy of new taxes or a proposition to increase the rates is not
valid without the approval of that House. But when supplies
have once been legally granted and are deemed continuously
necessary for the carrying out of approved policies, the govern-
6lO COMPARATIVE FREE GOVERNMENT
ment has acted upon the theory that the annual approval of
the Reichstag is not required.
As a forum for public utterance the Reichstag has accom-
plished all that could be expected. It has let in the daylight
upon all departments of public affairs. It has become a train-
ing school for the discovery and expression of public opinion.
The House is itself a guaranty of larger freedom for the schools,
the churches, and the public press. Drastic and effective
suppression of liberty of speech, such as prevailed early in the
last century, becomes impossible. This was demonstrated in
the case of the duel between the government and the Socialists
from 1878 to i8go. Laws were enacted for the complete de-
struction of the socialist organization. But the soldier and the
policeman could not follow the Socialist in the Reichstag, and
the party flourished under persecution. The effort at sup-
pression served only to demonstrate the helplessness of the
government, and after twelve years of failure the destructive
policy was abandoned.
Political Parties. — The century of agitation that preceded
the creation of the popular House gave to large classes of the
citizens experience in organization. At times publicly organ-
ized political parties appeared. When the parties were sup-
pressed the propaganda for free speech was often maintained
in secret. Under the Prussian Constitution of 1850 a party
arose in the legislature in opposition to the government. So
important were the issues and so fierce was the conflict that the
two parties absorbed almost the whole membership ; the Con-
servatives upheld the army and the " divine right " pretensions
of the King, while the Progressives urged the superior rights of
the Parliament.
When the Reichstag was organized the Prussian parties were
naturally carried over into the new national assembly ; but in
the transition important subdivisions and modifications took
place. Free Conservatives separated themselves from the
original party and took tluir place as Moderate Conservatives.
The Progressives likewise flividcd permanently into Liberals
and Radicals, Prussian Liberals uniting with those from other
States to form the National Liberal party. These four parties
which appeared in the first meetings of the Reichstag have ever
since held leading places in the Assembly. They conform in
THE PRESENT CONSTITUTION AND GOVERNMENT 6ll
general to the orthodox model furnished by the French Chamber
of Deputies — two parties of the Right and two of the Left.
For six years Bismarck secured his majorities by uniting the
two moderate sections of the Right and the Left. At the
beginning of the fight with the SociaUsts, in 1878, he was led to
rely upon a fifth permanent party of great strength. This is
the Catholic party, which in the Reichstag is called the party of
the Center. Of all the five permanent parties throughout the
entire history of the Reichstag the Catholic party has been the
largest, the best organized, and the most uniform in its member-
ship. The Social Democrats elected two members to the first
Reichstag in 1871, and since that date the number has been
increased at almost every election. In 1914 they numbered
no and formed the largest of the party groups. There are in
addition a half dozen small groups representing local or special
interests.
These few facts suffice to show that the Reichstag has all along
been performing the elemental political function of training a
citizenship for the assumption of the duties of self-government.
To furnish such preparation to Swiss and Anglo-Saxons re-
quired many centuries of constant endeavor. The French have
labored continuously at the problem for more than a century.
In spite of certain appearances to the contrary, the Germans in
a single half century have made distinct progress toward de-
mocracy.
As soon as the Great Chancellor had ceased to lead the govern-
ment forces, his successors were compelled to come to terms
with the party groups. The principal issue dividing them was
the question of the rate of taxation on imports. The Agrarians
favored a high rate on competing importations, the Industrials
a low rate. The extreme demands of the farmers were resisted
by means of the formation of a party coalition, or bloc, made up
of the Catholic Center supported by various conservative groups.
The rule of the bloc lasted for more than a decade.
In the meantime opposition to the military policy of the
government under the leadership of the Social Democrats
became a chief party question, and after the election of 1903
the government had great difficulty in maintaining a majority.
A prolonged contest was now inaugurated to establish the
principle of parliamentary government. The Reichstag was
6l2 COMPAR-VTIVE FREE GOVERNMENT
dissolved in 1906. By means of official manipulation the
number of Social Democrats in the Chamber was reduced from
seventy-nine to forty-three at the election of 1907, while at the
same time the Socialist popular vote was increased by almost a
quarter of a million. Then came a direct attack upon the
Prussian policy of governmental interference with elections.
A national demand arose for the amendment of the Prussian
Constitution, in order to admit the masses of the people to equal
suffrage, and in 191 2 the reform of the Prussian election laws
became one of the issues of the Imperial election. At that
election the Social Democrats made a gain of a million votes
and their membership in the Reichstag grew from forty-three
to one hundred and ten. The fact that a vast majority of the
people were opposed to the policy of the government was fully
demonstrated at that time. Multitudes who are not Socialists
voted the Social-Democratic ticket in order to support the
strongest party in opposition to the government. Partly as a
result of this election measures of reform were introduced into
the Prussian legislature. Thus, after forty years of public
discussion the Reichstag had practically won a great victory
for free government. It had become the one constitutional
agency for giving expression to the will of the German people.
The issue was already joined against the one effective barrier
to German liberty — that is, the Prussian " divine right "
autocracy. This was the condition of things at the breaking
out of the War in 1914.
The German movement towards liberty has been, in its
main features, thoroughly orlhodo.x. The undisguised absolute
monarchy ruled down to the Revolution of 1848, which forced
the concession of a Prussian Constitution. Following that
success, a contest was at once begun to transform the Consti-
tutional Government into a parliamentary one; and in 1862
the Prussian Parliament was apparently triumphant. But the
monarchy gained a new lease of life and power when the union
of the German States was secured by means of foreign wars.
The Union having been effected, the Reichstag l)ecame the one
reliable agency for advancing the cause of free government.
Political parties immediately appeared and began to exert
pressure upon the government. Forty years of continuous
experience placed the people of the l'"nipirc in a position to give
THE PRESENT CONSTITUTION AND GOVERNMENT 613
forceful assistance to the people of the State of Prussia seeking
to get control of their state government. But again progress
was arrested by the Great War.
Parliamentary government successfully established in Prussia
will inevitably be followed by free government in all the States.
Ministers chosen by the people will sit in the Bundesrath in
place of personal representatives of the monarchs, and that
Chamber will freely concede to the Reichstag the place of
supreme authority.. The Upper House may then serve the
democracy as efificiently as it has hitherto served the autocracy.
The office of Chancellor may be readily transformed into that
of Prime Minister. If orthodox lines are followed, the Chancel-
lor will cease to be the special agent of a single State and will
become the Chief Minister of the Imperial Democracy. As
such he will be transferred to the ruling branch of the legislature,
where he will surround himself with a cabinet of responsible
associates.
REFERENCES
(See Chap. L.)
DoDD. Modern Constitutions, Edition 1909, Vol. I, pp. 321 ff.
Lowell. Governments and Parlies in Continental Europe, Chaps. Yl, VII.
Ogg. The Governments of Europe, Chaps. X-XIV.
Seignobos. a Political History of Contemporary Europe, Vol. II, Chap. XVI.
Wilson. The Stale, Index Titles, Chap. XII. '
SWITZERLAND
CHAPTER LII
Origin of the Swiss Government
Although the Swiss Government is neither Presidential, after
the American type, nor Cabinet, after the English or the French
type, Switzerland is among the freest and most democratic of
states. In this little land perched on the roof of Western Eu-
rope rise the head waters or tributaries of four great rivers, the
Rhine, the Rhone, the Danube, and the Po, flowing to four seas.
Swiss glaciers have ground from the mighty Alps the soil which
these streams have carried to form adjacent countries. Up
these same river valleys have pushed or have been driven Ger-
man, French, and Italian settlers. The Swiss people is there-
fore made up of three races. Teutons, French, and Italians who
speak four ' native tongues, three of which are recognized as
official. Sharp religious controversies have ended in toleration
and harmony between Catholic and Protestant citizens. Not-
withstanding this diversity in race, language, and religion, the
Swiss have become one pc()i)le loyal and devoted to the Swiss
Republic.
Early Swiss Confederation. — From the Germanic tribes that
overran Switzerland in the fifth and sixth centuries primitive
local institutions have survived in the communes and in the
isolated mountain valleys; these have preserved much of their
ancient democratic character. Poverty and inaccessibility
protected these communities from ()p|)ression and greed and
they were enabled to retain a large degree of autonomy. A
town-meeting of mrde citizens governed the commune, enacted
by-laws, and ;i|ip<iinii(l executive officers. Cantons developed
from the union of neighboring communes and at first were
governed in I lie same way. Six of the smaller cantons still
' III llic (iri.sons a CDrrupl form of Latin, lalk-d Kuinanscli, is still spoken.
f.14
ORIGIN OF THE SWISS GOVERNMENT 615
hold an annual mass meeting, or Landsgemeinde, of the primitive
sort, composed of all the citizens. In this assembly laws were
enacted and executive officers appointed. For centuries the
early cantons conducted themselves like sovereign states,
making treaties with one another and with foreign powers and
providing for their own defense. In other cantons representa-
tive assemblies of delegates elected by the communes consti-
tuted the governing body. Permanent confederation between
cantons began to be effected more than six hundred years ago,
in 1 29 1, when the three forest cantons of Uri, Schwytz, and
Unterwalden formed a " perpetual league " against the Haps-
burgs. About this nucleus other cantons gathered and, through
various governmental vicissitudes, by the end of the Napoleonic
wars (181 5), Switzerland with its present boundaries and
twenty-two cantons ^ had worked out for itself a constitution
called the Federal Pact, which was formally approved by all
the cantons.
Under the Federal Pact no real union was effected ; the
cantons reverted nearly to the independence of their earlier his-
tory and the Diet had no power to enforce its nominal authority.
At the same time individual, political, and religious liberty
declined and democratic institutions were at a low ebb, save in
the smaller and weaker cantons.
The revived revolutionary spirit in Europe in 1830 was in
Switzerland accompanied by a reassertion of democracy.
Many of the cantonal constitutions were revised.^ In 1848 a
new general Constitution was adopted embodying various needed
reforms and expressing a decided trend toward centralization
and radical democratic institutions. A later Constitution, that
of 1874, a revision of the previous one, embodied many amend-
ments, improved the federal organization, and gave to Switzer-
land the satisfactory democratic government of the present
day. The popular uprisings of 1848 found the country already
prepared to yield local privilege and to become a democratic
nation, and since that date centralization and democracy have
gone hand in hand.
' Three of these are divided into half cantons, so that for purposes of local govern-
ment the number of units is twenty-five.
^The period between 1830 and 1848 was marked by no fewer than thirty revi-
sions of cantonal constitutions, all in the direction of a broader demoaacy.
Ogg, " The Governments of Europe," p. 409.
6l6 COMPARATIVE FREE GOVERNMENT
Each of the twenty-five political units which now compose the
Swiss nation possesses a large measure of political independence.
As in England and the United States, the democracy of the
general government of Switzerland has been the result of a
contest for local privilege. In local affairs the Swiss have from
the earliest days maintained democratic forms, and when the
French Revolution gave to them the theory of democracy they
appeared, as it were, to the manner born. Still, it was through
many and diverse experiments, involving times of reaction and
failure, when many citizens were deprived of their political
rights, when religious tolerance and individual liberty were
no longer enjoyed, and even through revolt and bloodshed,
that they strove on towards that ideal which they seem now to
have securely attained.
Unlike the other states of Continental Europe Switzerland
possessed a background of experience that made for liberty.
It is apparent that in each country, there have been local peculi-
arities and conditions which determine or modify the special
forms that free government assumes. In America an experi-
enced, liberty-loving people on a vacant continent worked out a
federated republic based upon local autonomy. An age-long
conflict between political factions endangering the local liberties
of the people finally gave to England a peculiar party govern-
ment in which power became centralized in two competing
groups of party leaders. In France local autonomy was early
destroyed by long-enduring tyranny, but it became the high
mission of France to give theoretic expression to the principle
of human freedom and finally to organize a centralized demo-
cratic state. In Clcrmany the local feudal states have survived
until a recent flate, and federation has been effected through
the ancient method of war under the leadership of the strongest
states. Still, democracy in the smaller German States has
forced the haiul of the more desjjotic one and secured a rej)re-
sentative assembly based ui)on a form of universal suffrage.
No two states are alike though all exemplify dilTcrent phases
of the universal movement towards free government.
The distinctive features of the Swiss state are largely due
to the i)liysiral nature and situation of the country. 'I'hrift,
courage, daring, ;ind independence grew from the soil. It
may be assumed that the most venturesome and liberty-loving
ORIGIN OF THE SWISS GOVERNIHENT 617
of the several peoples moved farthest up the valleys, where
they made the final stand for freedom. The country was too
poor to be worth conquering or, being conquered, it was not
worth governing. Surplus wealth was not adequate to the
support of a despotic government long enough to change local
customs. Federation appeared as the obvious means of making
liberty more secure against ambitious and warring neighboring
states. Independent Switzerland came to be early recognized
as a safeguard, a protection to adjacent states. The friendship
of the Swiss as the best fighters in Europe became worth culti-
vating.^ Neighboring states found it good policy even to con-
tribute new Cantons to the Confederacy. The Congress of
Vienna in 181 5 was only carrying on a time-honored policy
when it added the last three Cantons to the Confederacy and
made the whole neutral territory.
The growth of the Swiss Republic resembles in some respects
that of the United States. In each case the Union was formed
out of preexisting governments. The thirteen States of the
American Union had had a prolonged history as colonies, and
were united for a brief period of confederation before they
adopted the Constitution. The Swiss cantons had a much
longer history, with centuries of confederation preceding the
adoption of the Constitution of 1848.
Under the earlier confederation, policies adopted by Diet or
representative Assembly and accepted by the Cantons were
executed by the separate Cantons. This feature persists in
the latest constitution. The national legislature has power to
make laws binding upon the cantons without their consent,
yet the execution of the statutes is still left to the cantons.
Foreign relations, the collections of customs, postal and telegraph
service, and a few other lines of business, are administered by
federal officers, but the larger body of federal legislation is
administered by local officials. If that administration is not
satisfactory to the federal authorities, local authorities are
admonished ; and if they persist in refusal to execute the laws,
money due the canton is withheld. As a last resort soldiers
are sent into the canton. These " do not pillage, burn, or kill,
but are peaceably quartered there at the cxi)cnse of the canton,
and literally eat it into submission." 2
' Moses, " The Federal Government of Switzerland," pp. ig-22.
2 Lowell, "Governments and Parties in Continental Europe," Vol. II, p. 197.
6l8 COMPAR.\TI\E FREE GOVERNMENT
As in the case of the States of the American Union, the
cantons remain in possession of " all the rights which are not
delegated to the federal government and are not forbidden to
the states." ^ Still, in the practical working out of this princi-
ple there is a marked difference between the two countries.
The fact that the Cantons execute federal laws tends to obscure
the partition of powers between the local and central govern-
ments. Cantons readily submit to an expansion of federal
legislative rights, while they retain to themselves the function
of administration. And, since it is the duty of the Federal
Executive to see that cantons do their duty, the habit of looking
to the central government for guidance and admonition ensues.
Very few powers arc exercised exclusively by either govern-
ment, while the concurrent powers are numerous. To the
federal government i)ertain matters of education, labor, monop-
olies, insurance, highways, civil rights, criminal law, and many
others, which in the United States arc dealt with by the States,
and the tendency to expand the field of federal legislation grows.
In 191 2 a complete civil code for the entire country which had
been fourteen years in preparation was enacted. A criminal
code of like scope is being prepared by experts. These civil
and criminal codes, although enacted by the national legislature,
will nevertheless be administered by the cantons.
Before the adoption of the Constitution of 1874 a prolonged
debate was held between the advocates and the opjwnents of
centralized government. The Constitution of 1848 and the
revised Constitution iiuolved a compromise; yet the marked
tendency in Switzerland is towards greater centralization. The
Constitution gives to the national legislature supervision over
the cantons in the matter of amending their constitutions, and
no amendment is valid without national apiMoval. Every
change in the constitution of a canton must also be submitted
for a|)pr()val to the voters of the canton. Federal authorities
may enter the cantons on behalf of the civil rights of the citizens,
and they may appear, uillioiil imitation, to ])reserve order
therein.
At no lime has there l)ccn developed any ( Icarly defined
theory as to the relative jjositions of the two governments:
jjractical considerations determine those relations. The Swiss
' Chap. I, Art. 3, Const.
ORIGIN UI' THE SWISS GOVERNMENT 619
know nothing about " implied powers " of the Constitution.
The one hundred and twenty-three articles in the document fur-
nish adequate guidance to all public officers. There is no demand
for a learned expositor of their meaning. However, a Federal
Tribunal exists, a part of whose duties is the decision of cases of
conflict between authorities. By this Court acts of cantonal legis-
latures which violate the constitution either of the canton or of
the Federal government may be held invalid.^ But an entirely
different rule holds in the case of acts of the national legislature.
The Constitution requires the court to give effect to any legis-
lative act. The Federal Assembly is itself the final judge as
to the constitutionality of its own acts. The national legis-
lature is the authorized custodian of the entire process of con-
stitution-making, and supervises the making of the frame of
government for the cantons. If the two Houses are agreed,
constitutional changes for the Confederacy are enacted by the
same process as are statutes. But constitutional amendments
do not become valid unless they are sanctioned by a majority
of the people, the majorities being so distributed as to include
a majority of the Cantons. If the legislature fails to provide
an amendment to the constitution which the people require,
a petition signed by 50,000 voters may initiate a process to
secure the change. By various methods of comparatively
easy amendment, the letter of the Constitution is kept in har-
mony with the policies of government, and political energy is
not wasted on account of defects in governmental machinery.
The people really make their own constitutions in both canton
and Federation ; and by peculiar Swiss processes they keep
legislative assemblies in such close touch with themselves that
those bodies are truly representative. Rasping conflicts be-
tween the people and their public agents are thus reduced to a
minimum. No other government works with such smoothness
and efficiency as does that of the Swiss Republic.
REFERENCES
General References for Switzerland.
DODD. Modern Constitutions, Vol. II, pp. 253 £f.
' In that case the law is not nullified but it becomes the duty of the national
executive to induce the canton to change the statutes. See below, p. 630.
620 COMPARATIVE FREE GOVERXIMENT
LowKLL. Governments and Parlies in ConlinenlcJ Europe, Vol. II, Chaps.
XI-XIII.
McCracken. TIic Rise of the Siciss Republic, Book \', Chap. X.
Moses. The Federal Governmenl of Sicitzcrland.
OcG. The Governments of Europe, Chaps. XXII-XXIII.
Seignobos. a Political History of Contemporary Europe, \'o\. I, Chap. IX.
Vincent. Government in Switzerland.
Wilson. The State, Chap. VIII.
Winchester. The Swiss Republic, Edition 1891, Chaps. II-IX.
CHAPTER LIII
The FniVME of Government
At no time has serious or prolonged dispute arisen as to the
relation of the Swiss people to their Executive or as to the rela-
tions of the three departments of government to one another;
the Executive is as popular and as fully trusted as any other
part of the government and it is the great harmonizer and unifier
of the system. The little Federation, with its twenty-two can-
tons, some with aristocratic history and traditions, others pro-
foundly democratic in both ; its more than three thousand com-
munes, of endless variety and puzzUng complexity in their
local requirements ; its population widely diverse in origin, in
temperament, tradition, ideals, and aspirations, is nevertheless
governed, and well governed, by the same general laws. And
these laws deal with such intricate, such divisive matters as a
State Church, Popular Education, Capital and Labor, Govern-
ment Monopoly of the AlcohoUc Liquor Traffic, and Govern-
ment Control of General Utilities. To understand how this is
achieved a study of the whole frame of government is necessary.
The common English names for the five national institutions
of Switzerland often cause confusion because the words them-
selves denote nothing distinctive. The attention of the reader
is therefore called to the following definitions : Federal Council
{Conseil federal, Bundesrath), the national executive board
of seven members, one of whom is annually chosen President of
the Swiss Republic. Federal Assembly (Assemblee fcdcrale,
Bundesversammlung), the national legislature in joint session
of the two houses. As a united body it has a few distinctive
duties. Council of States {Conseil des Etats, Stdndcrath),
the upper house of the legislature, or the Senate of forty-four
members. National Council (Conseil national, Nationalrath),
the lower house of the legislature of 167 members, elected directly
in proportion to the population. Federal Tribunal {Tribunal
federal, Bundesgcricht), the Supreme Court.
621
622 COMPAR.\TI\'E FREE GOVERNINIENT
The Executive. — The laws of Switzerland are executed by a
hierarchy of Executive Councils or committees. In the com-
munes the town meeting, — in some instances the voters by
ballot, — elects a communal council, consisting usually of from
five to nine members. This council is responsible for communal
administration. In the cantons councils numbering from five
to thirteen members are elected, in more than half the Cantons
by popular vote, in the others by the legislature. The term of
ofl&ce in cantonal and communal councils varies from one to
five years.
Each grade in the series of executive councils may share in
the administration of most of the laws. Only a few subjects of
federal legislation are reserved for the exclusive control of the
Federal Council, and the administration of certain acts of the
cantonal legislatures pertains entirely to the cantonal Executive.
It is always in order also for the higher authorities to assist, en-
courage, or administer, in respect to any matter deemed to be of
general interest ; and it is the duty of the higher authorities
actively to interfere in case of violation of the laws of the canton
or of the Confederacy, or in case of delinquency in the e.xecution
of the laws.
The Communes adopt numerous by-laws covering a wifle range
of topics, which are executed \)y the communal councils or other
local ofl&cials. Upon the communes rests also a large share of
responsibility for the execution of the general statutes of Canton
and Federation. In the administration of local alTairs the exec-
utive council acts as a body, with the mayor as presiding officer ;
but in the execution of the more general laws the mayor is held
individually responsible. This is the one instance in the Swiss
system of imjwrtant individual executive responsibility. The
mayor and council have (jllkial charge of the town meeting,
although the members of the meeting have a nominal right
to introduce measures. The regular order is to refer all resolu-
tions to the council. The meeting simply approves or rejects
the program presented by the council. In the larger communes
the communal council is virtually a legislative committee pre-
I)aring by-laws to be voted upon by the peojjle.
The Cantons have their own constitutions, guaranteed by the
Confederation, anrl they exercise extensive powers in forming
and carrying out their cnvn governments. Each has a single-
THE FRAME OF GOVERNMENT 623
chambered legislative council in some of which the executive
councilors are included as voting members. To all of them the
executive officers have free access. They work with the can-
tonal legislators in all matters of legislation and finance. The
chairman, or president, of the executive council holds a position
of dignity and honor in the canton, although as an officer he is
merely a member of a governing board, the council as a body
being responsible for the government. In certain cantons
curious survivals of ancient forms of independent, democratic
government are found. Such is the Lands gemeinde, a primitive
mass meeting of all citizens. ^
The Federal Council of seven members is elected at the first
session of each new Federal Assembly to serve for three years.
Its members are chosen rather as men of business ability than as
leaders of a party, and are not expected to control governmental
policy. A restricted area in federal legislation is reserved to the
Federal Council, but its legislative duties are chiefly advisory
or such as pertain to the conducting of the administration. It
mediates between diverse political views, interests, and opinions.
No one of its members is authorized to propose any legislation
in the Assembly save by vote of his colleagues. Each Coun-
cilor, including the Chairman of the Federal Council, who is
also the President of the Swiss Confederation, presides over one
of the seven departments of administration, and, at the same time,
shares in the joint responsibility for the acts of the Council.
The business of the Federal Council is divided into seven
departments, one department being assigned to each member.
They are : Foreign Affairs ; Interior ; Justice and Police ;
Military Affairs ; Imports and Finance ; Posts and Railways ;
and Commerce, Industry, and Agriculture. Since, as we have
seen, the members have practically a life tenure, the heads of the
separate departments are correspondingly permanent. They
naturally acquire much skill and specialized experience, yet the
Constitution fixes full responsibility for every act upon the en-
tire council. In practice this means that every official act shall
have the support of a majority of the Councilors. There is
nothing to force an artificial unanimity, such as prevails in a
cabinet government. The Federal Council presents a bill to the
1 Freeman, " The Growth of the English Constitution." Fourth Edition 1884,
Chap. I ; McCracken, " Teutonic Switzerland," Chap. XI.
624 CO]MPARATT\T> FREE GOVERNMENT
Legislature for its approval, yet in the legislative Houses indi-
vidual members of the Council may appear-as opponents of the
same measure. The debate begun in the Council is thus con-
tinued in the Legislature. Even a member of the Council who
has voted in favor of presenting a certain measure to the Na-
tional Assembly for action may appear in the two Houses as
opposed to its passage. This means that he believes the Houses
ought to have a chance to act upon the bill, while in his own
judgment it would be better not to adopt it. Again, it may
occur that the Federal Council, being entirely united in the ad-
vocacy of a bill, may use all possible influence in favor of its pas-
sage, and approval may still be withheld by one House or by
both. This would imply no censure or lack of confidence. It
would involve no cabinet crisis. No one would think of resign-
ing and the same Legislature would continue to reelect the Coun-
cil whose pet measure it had rejected. The Executive has no
need of the support of the Legislature in the performance of its
distinctive duties and the Legislature is expected to exercise
entire freedom in acting upon executive recommendations.
Mutual independence prevents friction.
One of the seven heads of the executive departments is des-
ignated each year by the Federal Assembly to serve as Presi-
dent of the Republic, and another is chosen as Vice President of
the Council. It has become the established custom to promote
the Vice President to the Presidency each successive year. As
neither of these officers is permitted to succeed himself these
honors become distributed to all the members.
The President of the Republic, being head of a department and
sui)ervisor of the work of the other departments, is the ceremonial
head of the state and, as such, has a few special duties, — the
receiving of representatives of foreign governments, for example ;
but he does not possess any more power in the administration
than do the other Councilors. Swit/ATJand has never had a
King nor even a President of the Ripublic whose i)osition cor-
responded to lliiil of the President of the United States. The
Swiss Cantons have had no governors nor chief magistrates. All
executive power rests in the hands of the councils or committees
chosen directly or indirectly by universal sudfrage. The one
apparent exception to this rule is that of the mayor of a com-
mune, previously mentioned, and this arises from the double
THE FRAME OF GOVERNMENT 625
function of the commune as a local government area and as
administrator of cantonal and federal law.
Special reasons may be pointed out as contributing to the re-
markable harmonizing, unifying results, noted in the working
of the Swiss form of government. Its legal system is based upon
Roman Law, which maintains a sharp distinction between pri-
vate and public law. The courts of the cantons administer
private law, but have no jurisdiction over ofiicial misconduct.
No special tribunals have been set up to administer public law,
as has been done in France, a large part of such service being
rendered by the series of executive councils. Appeals are made
to the cantonal councils to correct abuses in local areas. From
the cantons cases are carried to the Federal Council. The
jurisdiction of the Federal Tribunal has been extended to in-
clude a part of the field of public law, although a considerable
portion of such business yet remains with the executive councils.
In either case the highest court of appeal is the National Assem-
bly, a joint session of the two houses of the Federal Legislature.
That body may set aside a decision of the Supreme Court or of
the Federal Council, in judging a case of ofiicial misconduct.
Swiss statutes are enacted in the form of brief indications of
the will of the state, leaving the executive to furnish supple-
mentary details. In France the Council of Ministers issues
general orders explaining the acts of Legislature. The Swiss
Council publishes few general orders, but it exercises very wide
executive discretion in adapting general measures to local con-
ditions. Many acts of the cantons and the communes are of
the nature of supplemental legislation or by-laws relating to the
enforcement of federal statutes.
The unifying influence of the Executive is further seen in its
relation to the Legislature. In both communes and cantons
the mingling of the two functions is constant. Executive offi-
cers enter freely into the legislative debates, although they may
have no votes. A similar close relation subsists between the
Federal Council and the houses of the National Assembly. The
Councilors take part in the proceedings of the legislature, though
they are not members of it. They prejjare bills to be acted
upon by the Houses, they are consulted in the preparation of
measures, and bills are referred to the Council for suggestions
and advice. The Swiss Executive, in fact, performs important
626 COMPAR.\TTVE FREE GOVERNMENT
services to the state in each of the three departments of govern-
ment — the Executive, the legislative, and the judicial.
The Legislature. — The Swiss Executive is always, in a sense,
subordinate to the Legislature. Executive councils are, one and
all, mere committees of the Legislature, whether or not they are
appointed by it. When they assist in making laws they act as
an aid to the Legislature ; when they issue general orders they
do it to supplement and enforce a statute, not to override or
change the law. When the Executive Council sits as a court to
decide issues of public law, its decisions are subject to reversal
by the Legislature. No executive body serves as a check upon
the Legislature or is endowed with independent powers by which
it may thwart the will of the Legislature. This is the funda-
mental distinction between the Swiss government and that of
the United States.
The legislature of the commune is an assembly of all the male
citizens over twenty years of age. Two of the cantons and four
half cantons also still maintain the ancient Landsgemeiiide, or
mass meeting of all the voters, as the supreme legislative body.
In these cantons the legislative councils hold a distinctly subor-
dinate place. In more than half of the others all acts of the
legislative councils go to the voters for approval. The rest,
with possibly one or two exceptions, provide for a popular veto
on legislative acts. Legislation in the cantons is therefore an
act of the entire citizenship. The legislature is supreme because
the people rule. But the legislative assemblies, and the execu-
tive councils, and the judiciary are, in a sense, equal and coordi-
nate, all being subject to orders from the body politic.
It is one of the curiosities of constitution making that Swiss
cantons continue to repeat the form of words taken from the con-
stitutions of American States distributing the powers of govern-
ment to the traditional three departments. Not unnaturally
these words ai)peared in the early constitutions, since in 184S un-
certainty still existed as to the fmal distribution of governmental
powers. There was much copying from the United States, and
it was natural that statesmen should expect political develop-
ment along American lines. Representative assemblies had been
little inlluenced by the referendum ; the popular initiative had
been adopted in only one canton.' Even in the United States
* Vaud adopted it in 1845. Lloyd, " A Sovereign People," p. 66.
THE FRAME OF GOVERNMENT 627
the theory of independent coordinate powers has been since the
middle of the century progressively discredited. In Switzerland,
especially in the cantons, the theory has no apparent influence
on actual policies, though the form of words is repeated as a harm-
less anachronism.
When the Constitution of 1S48 was adopted there was nowhere
in Switzerland a bicameral legislative assembly. Cantons had
always used the single chamber, and the early union also pos-
sessed an Assembly of one House, in which all the cantons, large
and small, had equal voice. One reason for adopting the double
chamber for the new Federal Legislature was the facility which
it offered for effecting a compromise between large and small
cantons. The condition was almost identical with that which
prevailed when the thirteen American States attempted to form
" a more perfect Union." The Swiss, following the American
example, conceded equal representation of the cantons in one
house and representation according to population in the other.
The Swiss upper House, usually called the Council of States, is
made up of 44 members, two from each of the twenty-two can-
tons. Three of the twenty-two cantons are divided, making,
for all local purposes, each half an independent state. Practi-
cally the cantons number twenty-five, though six of them count
as only half cantons in national representation. Each of the
cantons elects its members of the Council of States as it pleases,
pays them as it chooses, and determines their term of office.
Naturally the conditions of membership vary. There is a grow-
ing tendency to elect by popular vote and to make the term three
years to coincide with the term of membership in the National
Council.
The National Council is composed of representatives from the
cantons apportioned according to population, — one member
for each 20,000 inhabitants, and an additional member for frac-
tions of that number above 10,000. They are elected by uni-
versal manhood suffrage. All citizens except clergymen are eli-
gible. The election is from districts determined by the Fed-
eral Legislature ; but a district may not include parts of two can-
tons. No general rule has been adopted as to the population of
districts. Some districts elect one member, others five. A cen-
sus is taken every ten years for the apportionment of members.
That of igio gave to the House a total of 167 members. Their
628 COMPARATIVE FREE GOVERNMENT
term of office is three years, and their salaries are paid from Fed-
eral appropriations. In respect to general powers and duties
the two Houses of the Assembly hold positions of exact equality.
Measures of legislation and of finance may originate in either
house. In earlier times the smaller House presented superior
attractions ; but with the advent of democracy preponderat-
ing influence passed to the larger assembly. Members of the
Federal Council are more likely to be chosen from the National
Council than from the Council of States.
The Judiciary. — The Federal Tribunal consists of a single
court of fourteen members, appointed for terms of six years by
the Federal Assembly. This court has a limited original juris-
diction both civil and criminal. Civil jurisdiction extends to
cases between cantons, between cantons and individuals or cor-
porations, and between cantons or individuals and the Federal
government. Criminal jurisdiction covers cases of treason,
violations of international law, and crimes which threaten serious
disturbance of public order. The Federal Tribunal is not a high
court of appeal for the cantons, although a limited class of cases
may be thus appealed. The jurisdiction of the Court is depend-
ent upon federal legislation and has been extended to cases of
public law involving conflicts between authorities and official
abuses of the rights of citizens. There is final appeal in matters
of administrative jurisdiction to the Federal Assembly.
Each canton has its own distinct judicial system, at the base
of which stands the ever present Justice of the Peace. Arbitra-
tion fills a large place in the duties of the local justice. His
chief business is to forestall and prevent litigation. Some of the
cantons even require that arbitration shall be a prerequisite in
every trial of disputed rights.
Between the Justice of the Peace and llic Supreme Court of
the canton there are usually intermediate district courts. Sei)a-
ratc courts are provided for cix-il and criminal causes. Several
Justices are usually engaged in a Irial. Appeals may be taken
to the Supreme Court of the canton, whose Justices are in most
cases appointed by the legislature; the others are elected by
popular vote. These courts administer Federal as well as can-
tonal laws and in most instances there is no appeal (o the Federal
Tribunal.
THE FRAME OF GOVERNMENT 629
The Swiss Judiciary resembles that of France in that the
Roman system of distinguishing between private and public
law is maintained ; yet there are marked contrasts in the methods
of development. Roman law had little influence over the
peoples in the fastnesses of the Alps, while southern France
became thoroughly Romanized. The decline of feudal rule in
the eleventh century was accompanied in France by a revival of
Roman law, and with the advent of the great Revolution the laws
were codified and adapted to modern needs. All this is foreign
to the Swiss experience. With legislature and executive in com-
plete accord in the communes and cantons there was little need
of a distinct judiciary. As courts were established they followed
the French, or Roman order of limiting the legal sphere to the
maintenance of private rights. The French system was a crea-
tion of the Revolution and the Napoleonic era. It emanated
from the Central Government and large provision was made for
appeals to the higher courts.
In Switzerland an independent judiciary arose in each of the
Cantons. So devoted were the people to their own local systems
that when a Federal Tribunal was called into existence in 1848,
the judiciaries of the cantons were left intact, and the jurisdic-
tion of the new tribunal was restricted to intercantonal rights.
Even Federal laws were adjudicated by the cantonal courts with
no appeal to the federal court unless some intercantonal right
was involved. One of the serious problems of the centralizing
Swiss democracy was how to secure harmony among the nu-
merous independent judicial systems. In recent years, the solu-
tion has been sought by extending both the original and appellate
jurisdiction of the Federal Tribunal and by the enactment of
carefully prepared civil, criminal, and commercial codes, adapted
to the needs of the entire Republic.
Thus far the Swiss exhibit no tendency to follow the lead of
the French in creating administrative tribunals to administer
public law. The settlement of controversies involving public
officers is mainly retained in the hands of the executive councils
and the legislature. Yet the Federal Tribunal has been em-
powered to make investigation and to decide questions of right
in that domain. This is an apparent exception to the rule in
Roman Law countries that ordinary courts shall not administer
public law. It is, rather, an instance of the use of the same
630 COMPARATI\'E FREE GOVERNMENT
judges in the two separate capacities. As an administrative
court they follow a separate procedure.
The federated system with written constitutions creates a
condition in which we might expect to find a hierarchy of laws,
as in the United States, and progressive gradation of authority
does indeed exist. Communes are subject to cantons and can-
tons to the Confederation. But nowhere are the courts empow-
ered to nullify a statute either of the canton or of the Federal
Legislature. Swiss Constitutions have no higher authority
than statutes. If Cantons enact laws which traverse federal
authority, the issue is joined between the Federal Council and the
cantonal legislature, not between the cantonal statute and the
Federal Constitution in a court of law. It is the duty of the
P'ederal Council to induce the cantonal legislature to change its
conduct. If the case is referred to the Federal Tribunal that
court proceeds, not with the cantonal statute to determine
whether it is good law, but to investigate the question at issue
between the federal executive and the cantonal legislature and
to assist the executive in discovering rules for harmonizing
authorities. The real decision still rests with the federal exec-
utive or, finally, with the federal legislature. There is there-
fore no gradation of laws, as such, but a gradation of admin-
istrative and legislative authorities. The rule of the Federal
Constitution requiring the courts to administer the statutes,
even though they are in apparent conflict with that constitution,
is applied to cantonal statutes as well as others. If the
statutes are wrong, they are to be altered, not to be inter-
preted out of existence by the judiciary.
Switzerland and the United States represent extreme develop-
ments of the two systems of law. In the Anglo-Saxon world
the judiciary has been used both as a bulwark for liberty and as
an agency for repression. For centuries the high courts were
the most reliable tool for the support of despotic power. The
judiciary has always held the central position between contend-
ing forces of liberty and reaction, or conservatism. Both sides
lay claim to judicial sup[)ort ; both have contributed to the ex-
altation of the courts. In England, this led to the subordina-
tion of the Executive to the courts ; in America the courts retain
all of their accumulated powers over the Executive and, by
means of a hierarchy of laws, they have, to a large extent, subor-
THE FRAME OF GOVERNMENT 631
dinated the legislatures as well. In France the Roman law with
the magistrates to enforce it has been an aid to liberty. The
triumph of liberty has tended to emphasize the importance of
the judiciary. In Switzerland there has been no sustained des-
potism as in France, no prolonged conflict between classes as
in England, no gradation of laws as in the United States ; so
there has been little use for a judiciary. Nevertheless more
recent democracy is conceding to the courts of law a modest
and dignified, but subordinate position in the government.
REFERENCES
(See Chap. LII.)
CHAPTER LIV
The Working of the System
Switzerland has passed beyond the stage of belligerent
democracy into that of assured popular rule. The transition is
marked in the Constitution of 1874. The advent of assured
democracy is indicated by the disappearance of checks and
balances. The belligerent democrat naturally looks upon the
referendum as a check upon the representative assembly ; but
this idea is being eliminated. The object of the Assembly is
to discover and express the wishes of the body politic. The
referendum aids the representatives in the discovery of the
general will and enables them to act with greater assurance.
Once accept the princij)le that the legislative assembly is the
servant and not the ruler of the people, and the so-called popular
veto becomes not a limitation upon, but a guide to its course. It
is the business of the Assembly to discover in advance the will
of the state. Yet in case of doubt the legislature has a free hand,
because if a mistake is made, it may be immediately corrected.
In the cantons, where the popular initiative prevails, legislative
assemblies have an additional guiding agency. By means of the
initiative the l)ody politic may secure the right to vote on a
statute which the legislature has failed to enact. It is note-
worthy that with the continuous growth of democratic conscious-
ness the popular initiative has not been extended to federal legis-
lation. The ])e()ple may, by j)tlilioii of 50,000 voters, secure
action upon the amendment of the Federal Constitution, but
they may not thus initiate a statutory change. This is ex-
plained by reference to the fact iliat the Federal Council is ade-
quately responsive to [)()pular wishes. As representative
democracy approaches perfection there will be less demand for
cither the initiative or the referendum.
Cooperation Replacing Checks and Balances. — Tiie two
houses of the Federal Assembly with their exact equality of
632
THE WORKING OF THE SYSTEM 633
function naturally suggest a check of the one upon the other,
a safeguard against hasty legislation. Such was the original
intention. The principle of artificial checks was recognized and
approved in 1848, but the spirit of cooperation has always char-
acterized the relations of the Houses. A presiding officer is
chosen by each house from among its members. A Chancellor
is elected by the joint session of the two Houses, who serves as
a custodian of state records, and, with an assistant, keeps the
minutes of the two Houses. He is also Clerk of the Federal
Council, though not a member of it. The Presidents of the two
Houses with the Chancellor and the Federal Council act as a
steering Committee for both Houses. It is the duty of these
officers to have business prepared for the opening of each
session. Through the Chancellor they are informed as to the
exact condition of the unfinished business of the previous session.
The Federal Council is in continuous session. It prepares
bills on measures referred to it by the legislature ; it receives
petitions from all sources for new legislation, and prepares bills
of its own to supplement defects revealed by its experience as
Chief Executive for the Republic. The Chancellor, as clerk
both of the Federal Council and of the legislature, keeps a record
of all these measures. The Presidents of the two houses meet
and agree upon the measures to be first acted upon by each house.
Instead of serving as checks and hindrances, the houses coop-
erate to a common end under the guidance of a single committee.
Thus directed two sessions of about four weeks each suffice for
transacting the annual business.
The Swiss system actually attains among the representatives
of the three departments of government a condition of equality
not found in countries where checks and balances prevail.
The Legislature is, in a sense, supreme because of the nature
of its business. But with the laws emanating directly from the
body politic, legislative assemblies take their place beside the
executive and the judiciary as coordinate guardians of the com-
monweal. The three distinct functions of government are
clearly recognized. Each line of business is in the hands of sepa-
rate officers, and in the performance of their peculiar duties they
act independently : one department does not dictate to the other.
Authority is derived from the same source and there is a marked
uniformity in the machinery provided for its exercise.
634 COMPARATIVE FREE GOVERNMENT
The judiciary is made up of groups of justices, each one elected
for a brief term of ofSce. In courts of higher rank than the jus-
tice court no single judge is permitted to decide a case at law;
a bench of justices renders the decision. In matters of private
law the decision of a single court is in most cases final. Neither
the executive nor the legislative assembly interferes with ordi-
nary courts, nor do the courts interfere with the coordinate
branches of government.
Besides the distinctive duties exercised independently by the
departments, there are many duties not distinctive, which are
exercised cooperatively. It is not necessary to describe farther
the continuous cooperation between Legislature and Executive.
They work together, although they remain free and independent
in action. The judiciary also has its cooperative duties. The
work of the judges in ])romoting arbitration and preventing liti-
gation is not essentially different from that of administrative
officers who strive in much the same way to secure compliance
with the laws. The courts also assist in legislation. In some
cantons they are required to report to the legislature, specify-
ing needed changes in the laws, and this service is everywhere
permissible. Moreover, in the matter of administering public
law and deciding cases involving conflicts of authority all the
three departments share. Various executive councils continu-
ally strive to solve all such difficulties. A limited number of
problems, whose solution transcends the wisdom of the execu-
tive councils, may be brought before the National Tribunal
for solution ; but a joint session of the two houses of the Legis-
lature is the final court of appeal in questions of public law.
Salaries. — The highest salary ])aid to any public officer is
that of the President of the Republic, 13,000 francs ($2600).
His associates in the Federal Council receive 12,000 francs, and
the members of the Federal Tribunal receive the same. Mem-
bers of the National Council have a small daily compensa-
tion while in attendance at legislative sessions. Much of
the service in communes and cantons is gratuitous. Office-
holding is honorable, but nowhere remunerative. The spoils
system is forestalled by taking care that there be no spoils.
Notwithstanding meager ( ompcnsation and short terms of office,
the stale in all its flepartmciits secures the continuous services
of (itizcns Ik-sI liltid fur office. The Federal Council may be
THE WORKING OF THE SYSTEM 635
used to illustrate the general custom as to permanency in the
service. Its members are elected in a body, once in three years,
by the Federal Assembly, and they are continuously reelected
as long as they live or are willing to serve. The average period
is more than ten years ; the maximum period, more than thirty
years. In some of the communes and cantons a sort of aristoc-
racy of public service is discernible ; a promising son of a faith-
ful official is often chosen to succeed his father. The public
officer makes sacrifices for the good of the community. For this
he is held in high esteem and receives a vote of confidence at
each election. Frequent elections promote stability and per-
manence in office by keeping alive the conscious appreciation of
service rendered. Such conditions make exciting contests for
office impossible. The personal element is eliminated from elec-
tions. Political interest is centered in the issues involved, not
in parties or party leaders.
Political Parties. — Switzerland, like all free states, has its
distinct party system. Since there are no spoils of office and no
positions which admit of personal leadership, parties are kept in
close relation to, political issues. The relation of the cantons
to the central government is the one issue that goes farther than
any other in accounting for the formation of parties.
Prior to 1848 there was prolonged debate over the question
of a stronger union. The Constitution was a compromise ; yet
it marked the triumph of the radical party which favored cen-
tralization. A period of party confusion followed on account of
the injection of new issues. Private or public ownership of rail-
ways was for many years a divisive question. Threatened war
with France over the seizing of Savoy called forth a new align-
ment. Race jealousy between Germans, French, and Italians
was for a brief period a disturbing element. The division
between Catholics and Protestants over questions of education
and the support of the church was a factor of importance. The
general state of party disarrangement terminated in a ten years'
agitation for a new constitution. The Constitution of 1874
provides for a still more centralized government and gives to the
people direct control over constitutional amendments and a
negative veto on legislation. Under the new order political
parties assume a permanent position and for forty years have
incurred little change.
636 COMPARAT]\"E FREE GOAERNMENT
After the year 1867 the Catholics became consolidated into a
party of the Right, resisting farther centralization of the state.
The Radical party, or the party of the Left, favors centraliza-
tion and the use of federal authority to support secular educa-
tion. The Liberal party, the party of the Center, is mainly
composed of bankers and manufacturers. They are Protestant,
favoring secular education, and they turned the scale for the
Radicals in the adoption of the new constitution. They are,
however, less disposed to extend the field of state control over
industries than are the Radicals.
The Swiss are a people with great organizing experience,
though they do not apply that ability to their political parties.
The Catholics have the best organization, but even they do not
work together as a united party. Among Radicals and Liberals
are numerous subflivisions. At the extreme left are a few pro-
nounced Socialists. Next lo these are Social Democrats, who
make up the more active section of the Radical party. The
parties have no duties which call for close organization. In
ofl5ce they do not govern. Legislative party members do not
pretend to vote as a unit. If a caucus is held, its object is en-
lightenment, not the securing of united action. Among the
constituencies the absence of contest for office leaves little for
parties to do by way of nomination and election of representa-
tives. The parties appear as convenient permanent divisions
of the citizenship to promote discussion for the instruction of
voters. Much of the jiolitical life is limited to the cantons and
cities. Local parties conlined to a single canton abound.
Socialism and Other Reforms. — Besides the parties there are
numerous organizations to promote special reforms. Such
associations ai)peal to all parties or to the whole citizenship re-
gardless of party. 'Vhc rtlation of reform associations to the
party system is illustralid by the position of the Swiss Social-
ists.
The .sociali>tic i)roi)agan(la i)cgan early in tiie last century.
For many decades it was but one among numerous reform
organizations. When socialism became an active political factor
in surrounding slates the question was raised whether the Swiss
Socialists should not go into politics as a party. The prevail-
ing sentiment has been in favor of remainingaloof from party and
seeking f|uictly to permeate the eitizenship will) lluii- doctrines.
THE WORKING OF THE SYSTEM 637
Many of the Social Democrats, however, are Socialists. In
some localities the socialist organization has been drawn into
political contests, and in Zurich, at one time, they made up
nearly half of the Executive Council. Their leaders were even
fearful lest at the next election they should have a majority in
the Council. Because of the fact that the Socialists are more
thoroughly organized than any other party, an actual majority
would raise the embarrassing question of party responsibility, —
a thing which is alien to the Swiss mind. In Germany, France,
Italy, in all countries where parties either rule or try to rule,
socialist organizations become political parties. Swiss Socialists
seek to maintain the same thoroughness of organization, but they
strive to keep it out of politics. Except for a few brief periods,
the Radical party has maintained an actual majority in the
Swiss Legislature since 1848. Had the party been organized
as are the Socialists, and had it, as a party, advocated precise
and definite policies, this could not have been. The parties
survive with little change because they do not seek to govern,
though they do supply needed light to the governing bodies.
Closely related to this function of enlightenment is the rise
of Proportional Representation. The advocates of the system
aim not only to give to the existing parties representation in legis-
lative and executive councils in proportion to their numbers, but
to secure representation to smaller bodies of citizens. As nearly
as may be the Legislature is intended to reflect the views of all
sections of the body politic. If in such a system one political
party happens to have a clear majority over all others, it is
because that party is most loosely organized and reflects in it-
self the widest range of diverse opinion. Only the party least
fitted to rule can have a majority.
During the agitation for the new Constitution of 1874 the
Radicals had for a brief period less than a majority and the
Liberals held the balance of power. Liberals gained a majority
in the Federal Council. A few years later the Radicals had re-
gained a majority in the Legislature, but the Federal Council
continued to be Liberal, though the party of that name was not
one fifth of the Assembly. The executive officers are continued
in office without regard to party affiliation. Not one instance
has occurred since the triumph of direct democracy in 1874,
of failure to reelect a Federal Councilor who was willing to con-
638 COMPARATI\E KREE GOVERNMENT
tinue in office. When vacancies do occur places are filled for the
good of the service, not for party advantage. There is a growing
conscious effort to have all i)arties represented in the Council.
The Clericals, always a small minority and the most reactionary
of the parties, have found a place in the Council. Socialists also
have been conceded representation.
REFERENCES
See Chap. LII.
CHAPTER LV
Switzerland Compared with the United States and
England
The fundamental distinction between the two leading types
of free government is, that the cabinet system unites the execu-
tive with the legislature, while the presidential system separates
them. Upon this basis the Swiss government belongs to the
presidential, or American type, rather than to the cabinet class.
Even in the cantons where the executive councilors are made
voting members of the legislative councils, the legislative and
executive functions remain distinct. The executive council is
not responsible to the legislative council for its policy of ad-
ministration. In communes and cantons, where the legisla-
ture is the entire electorate, the executive council is, in a sense,
responsible to the legislature though as a subordinate committee
or representative body. If the legislature is the body politic, then
the executive is subject to it, as are all other officers. Never-
theless, the Swiss government is not of the presidential type.
It is a government approaching direct democracy.
Personal vs. Joint Responsibility. — Comparing the three sys-
tems with reference to the personnel of the executive, it is to be
noted that both the English and the American executives have a
chief person at the head. The king is by law the chief executive.
According to the Constitution, the Prime Minister with a body
of associates whom he has chosen make up the responsible
Government. Executive power is either personal or is per-
sonated by the party leader.
Personal rule is even more obvious in the United States. The
President is the responsible Executive. The members of his
Cabinet are assistants and advisers, but responsibility rests with
the President. The governor is the chief executive in each of
the States, and, for the most part, the mayor is chief magistrate
in the cities. The rule is personal and responsibility rests with
an individual officeholder.
f>39
640 COMPARATIVE FREE GOVERNMENT
It is difficult to imagine a greater contrast than Switzerland
presents to the American system. Nowhere, either in the execu-
tive, the legislature, or the judiciary, are important responsibili-
ties lodged with a single officer. The President of the Republic
is not the chief executive. He has a minimum of ceremonial
duties, he is permitted to serve only one year, and for all of his
important official duties six other members of a governing board
share in the responsibility. The President is the chairman of
the Council, but he presides over a Cabinet of equals of which he
is simply a member. The President of the United States is not
a member of his Cabinet. Like the Swiss Executive Council,
the Cabinet is made up of the heads of departments, but each
member is individually responsible to the President for the con-
duct of his department. Joint responsibility is no part of the
American plan. The cabinet members give advice to the Presi-
dent, which he is not required to follow. A fair degree of unity
and harmony is maintained in the American Cabinet, because the
President would not tolerate a member who refused to support
or acquiesce in his policies. The Swiss heads of departments
hold office by legislative appointment for three-year terms : all
are chosen at the same time, but the custom of reelection makes
it practically a life service. Cabinet positions in America are
held at the will of the President ; it is exceptional for a member
to remain in a Cabinet after the expiration of the official term of
the President who a[)pointed him.
Joint responsibility is a term used in describing both the
English Cabinet and the Swiss Federal Council, though it de-
notes something radically (lifferent in the two countries. Joint
cabinet responsibility in I'^ngland grows out of the fact that the
Cabinet is the chief agency for responsible party government.
Positions in it are held at the will of the House of Commons
and all its members stand or fall together. Not only are the
members jointly responsible for the acts of the Cabinet, the
system re(|uires also that they hold, or at least profess, identical
opinions on the leading issues of the day. It is an artificial unity
growing out of the exigencies of party government. But the
Swiss repudiate |)arty governmental control, seeking instead to
attain representative government in the executive as well as in
the National Assi-mbiy. As far as possible they would have all
parties and all shades of opinion npresi'ntcd. 'I'lu' heads of de-
SWITZKRLAXD COMPARED WITH UNITED STATES 641
partments belong to different parties, and are expected to be
representative, not necessarily unanimous, on seriously contro-
verted matters. Neither in their relations to the legislature nor
to the community at large is there any demand for unanimity.
Joint responsibility means that all measures adopted shall have
the approval of at least four of the seven members, and, if there
is serious delinquency or wrongdoing on the part of one, all are
subject to criticism.
The Swiss have never experienced the need of limiting the
power of a tyrannical executive by means of legislative restraints.
They have found no occasion for elaborate detail in the formu-
lation of statutes. The Roman method of giving clear expres-
sion in brief general terms to the will of the state, leaving to the
executive the filling out of needed details, is followed. This
explains the fact that a mass meeting can in a single day enact
all the statutes that the canton needs for a year. Legislation is
simple, easy, and satisfactory. Between legislature and execu-
tive no jealousy or rivalry exists.
Scope and Functions of the Legislatures. — The American
model was undoubtedly influential in determining the form
of the Swiss Federal Assembly. The Council of States corre-
sponds to the Senate of the United States with equal representa-
tion from the cantons, and the National Council is like the House
of Representatives, having at least one member from each canton
and additional members for every 20,000 inhabitants. There
are, however, differences in the apportionment of their functions
and in their practical working. The houses of the Congress of
the United States meet in joint session once in four years to can-
vass the votes for President and Vice President. If no one has
been elected to the Presidency, the Lower House proceeds to
elect a President ; and, in case of failure of a majority for Vice
President, the Senate elects. The Swiss Federal Assembly each
year elects the President of the Republic and a V^ice President of
the Federal Council ; once in three years it elects the seven
members of the Federal Council and a Chancellor who keeps
the records of both executive and legislature. Once in six years
it elects the fourteen members of the Federal Tribunal, or su-
preme court, and it elects the generals of the army. Besides
these electoral duties the joint session exercises the pardoning
power and serves as a final court of appeal in cases of public
642 COMPARATRE FREE GOVERNMENT
law or of conflicts between authorities. The joint legislative
session is, then, in Switzerland, an important institution,
while in America its labors are confined to the one act of deter-
mining the result of an election.
A two-thirds vote of the Senate alone is required to validate
a treaty of the American government. A majority vote of the
two houses of the Swiss Legislature, sitting separately, is re-
quired to validate a treaty already agreed upon by the Federal
Council. Appointments not otherwise provided for by law are
made by the President of the United States with the advice and
consent of the Senate. In Switzerland this power is lodged with
the Federal Council, and no legislative approval is required. It
should be noted, however, that, owing to the fact that federal
laws are administered by the cantons, federal appointments are
few. The American Lower House exercises the power of im-
peachment while the Senate sits as a court for the trial of such
cases. The Swiss make no provision for impeachments.
Bills for raising revenue must originate in the Lower House of
Congress. In the Swiss National Assembly they may originate
in either house. The election of Senators is regulated by the
Constitution and by the federal statutes. The election of mem-
bers of the Council of States is left entirely to the separate can-
tons. The salaries of the members of Congress are fixed by fed-
eral law and are jjaid out of the federal treasury. The members
of the Council of States receive compensation from the cantons
which they represent. The members of the lower house in the
National Assembly are paid out of federal appropriations. No
age requirement is fixed for membership in either Swiss house.
Any voter who is not a clergyman may be elected to the Lower
House. 'I'he same rule holds in the other House unless, per-
chance, some canton may have adopted a different rule. All
the members of the more numerous body are elected at one time
and serve three years. Some of the cantons elect their members
of the Ui)j)er House yearly, l)ut the greater number elect for
terms of three years.
The fundamental [)rinti|)le to be observed in the comparison
of the two legislatures is that in America there exists a consider-
able differentiation of functions between the two houses, while
the Swiss houses maintain a complete identity of function. In
joint session one house is outvoted b\' the other nearly four
. SWITZERLAND COMPARED WITH UNITED STATES 643
to one. If the Houses were in controversy over matters for
joint action, the more numerous council would rule. But
controversies are unusual. It is observed, however, that execu-
tive Councilors are more likely to be chosen from the larger
chamber and that chamber attracts greater political interest.
Neither house has any dignity or prestige to defend ; cordial
cooperation under executive guidance is the rule. No bills
are introduced for political effect; no speeches are made for
distribution in election campaigns. During the brief sessions
of four or five weeks each, the members of the houses attend
strictly to business. Inevitably some measures fail of enact-
ment for lack of assent from the smaller House, yet no general
criticism arises on that account. One house is as democratic
as the other. There has been an agitation for the extension of
the Popular Initiative to federal legislation. This has failed
because the legislature is so constituted that it can be relied
upon to pass any measure which the people want. If anything
in the form of obstruction or minority rule should appear, the
initiative would surely be adopted.
Making and Amending the Constitution. — The relation of
the two houses of the Federal Legislature to making and amend-
ing the Constitution illustrates the high degree of confidence
placed in them. The constitutions of all the cantons are sub-
ject to approval by each of the two Houses acting separately.
Every amendment to the constitutions of the cantons takes
place under federal supervision. If the two houses of the Na-
tional Assembly agree upon an amendment to the Federal
Constitution, they adopt it by majority vote just as they
would a statute. The proposed amendment then passes to
the people for approval, and to become valid it must receive
not only a majority of all votes cast upon the question, but the
majority must be so distributed as to include a majority of the
cantons. If one house desires a change in the Constitution
and the other does not consent to it, the aj)peal is made to the
voters. Finally, if the people wish a change in the Constitu-
tion, 50,000 petitioners may secure a vote on a specifically
formulated amendment. All that the Legislature does in
that case is to present the proposed act to the voters for approval.
The same number of petitioners may require the Legislature to
submit the question of a general revision to the voters. If a
644 COMPARATIVE FREE GOVERNMENT
majority of the voters favor revision, this has the effect of dis-
solving the existing Legislature, and a newly elected National
Assembly is chosen which proceeds to prepare the desired revision
of the Constitution to be submitted for approval. The Legis-
lature, therefore, is the guardian of the entire process of con-
stitution making both in the States and in the Confederacy.
With the single exception of a specihc amendment demanded
by petition, the Legislature formulates all changes in the Con-
stitution. The same body in joint session of the two Houses
is the final interpreter of the Constitution.
The legislative experience of Switzerland and that of Eng-
land so widely differ that it is difficult to make a helpful com-
parison in brief, general terms. England was first to develop
the bicameral form for legislative assemblies. Switzerland for
many centuries held to the single chamber and when finally two
houses were set up for the federal legislature they were used
in such a way as to retain many of the features of a single cham-
ber.
The British Parliament has been made up of (Hscordant and
opposing elements, — the Crown, the Lords Spiritual, the Lords
Temporal, and the Commons. Nothing of the sort has appeared
in the Swiss legislatures : King and Lords are omitted. In the
United States, in England, and in Switzerland alike, democracy
has arisen out of the devotion of the people to their local privi-
leges. The prolonged duel between the EngUsh Crown and
Parliament resulted in centralizing democracy in a representa-
tive assembly. Modern towns, counties, and parishes receive
their popukir privileges at the hands of Parliament. France
exhibits this same order of development in a more extreme
form, but a precisely contrary order has controlleil the demo-
cratic evolution in Switzerland. There the communes and the
cantons held their dominant positions until the rise of the spirit
of national demcKracy. The radicals are now securing an
efficient centralized government despite the resistance of the
conservative reactionaries who defend some form of local
jjrivilege.
The contrasts between the juflicial systems of the different
countries are equally significant. ICnglanrl was the first and
Switzerland the last to develop a distinctively national judicial
system. It is unnecessary to repeal here the story of the rise
SWITZERLAND COMPARED WITH ENGLAND 645
of the early English judiciary out of the habit of the people to
look to the King's Justices for the defense of local liberties,
and to show how this led to a complete fusion of private and
public law. Swiss local liberty is older than Magna Charta,
yet no higher authority has ever arisen in the name of law to
strengthen the hold of the people upon their local privileges.
When disputes have arisen they have been settled by committees
or by boards of arbitration. Laws have been executed by
representative boards, and interpreted and applied by similar
institutions. Arbitration still holds a fundamental place in the
Swiss judicial system.
REFERENCES
See Chap. LII.
PART III
DEMOCRACY IN OTHER STATES
CHAPTER LVI
The SiL^LL States of Europe
Small states have been great teachers. Palestine teaches
the world religion and morality. The little Greek states sur-
pass all others as teachers of art, literature, philosophy, politics.
It was when Rome was a small state that the principles of
Roman law were developed. The law was extended through
the comparative study of other small states, or communities.
That which is of permanent good to the race came from the
winnowing of experiences gathered from innumerable small
communities. Imperial Rome was corrupt, degenerate, in
many ways a curse to mankind. Morality and the manly vir-
tues emanate from local community life, while the great con-
quering states have often transformed brave men into cowards.
The Swi'ss, who have never been subjected to the emasculating
influence of imperialism, have been distinguished for bravery.
Not until the advent of self-conscious, belligerent democracy
and the federal principle in government has it been possible to
protect the people of a great state from wholesale degeneracy.
The battle for liberty in the great states may do much, but
the lesser states on the Continent of Europe are in a position to
render a unique service to humanity.
Three Groups of States. — Europe is divided into three
distinct governmental groups. The five leading continental
countries of France, Germany, Austria, Russia, and Italy,
with England, make up the Concert of Europe, and their
policies are determined by imperialistic ideas. The eight
minor states of Switzerland, Denmark, Sweden, Norway,
Holland, Belgium, Portugal, and Spain stand second. The
Balkan states, formed out of the Turkish empire, complete the
list.
These minor states share in the world's commerce and colonial
possessions to an extent out of all proportion to their popula-
649
650 COMPARATRE FREE GOVERNMENT
tion. The little state of Norway maintains a merchant marine
greater than that of any state on the Continent except Germany,
and the merchant marine of the three Scandinavian states is
nearly equal to that of Germany. Holland does a carrying trade
more than one fourth that of Germany, and during the ten
years ending 19 14 the rate of increase in the Dutch merchant
marine was twice that of the German. Seven small states of
the Continent maintain a merchant marine in proportion to their
population six times that of the five military and naval states.
In respect to colonies and foreign possessions the facts are
equally striking. Each of the three states of Holland, Belgium,
and Portugal rules over a greater colonial population than does
Germany ; and together their colonial subjects are nearly
twice those of France. Although they have no huge armies
and navies, they have yet been comparatively secure in their
possessions, and their experience is a lesson of great value to the
law-abiding in all lands. ^
Each one of the minor states is an independent school of
domestic politics. Switzerland has been described. Spain
has passed through the various experiences of a people sub-
jugated, Hberated, risen to imperial dominion and then incur-
ring the degeneration incident to such rule ; while, in recent
years, the state is being rejuvenated by the development of a
citizenship devoted to popular education and self-government.
Absolute monarchy has given place to constitutional monarchy
and this in turn is Ijcing transformed into a j^arliamcnlary
monarchy or into a republic. Portugal, whose history has
been closely linked to that of Spain, has assumed the republi-
can form of government.
Belgium and Holland have won the lasting gratitude of all
lovers of liberty for their persistent refusal to submit to tyran-
nical rule. In defending their own local liberties they have
protected other peoples from <)|)pression. Germans and Eng-
lish have been benelkiarirs of their \alor. A Dutch army
assisted the English in ri(hling themselves of a tyrannical king,
and for several generations I lie people of the Low Country took
a leading part in imposing restraints u|»on the disorderly and
imperialistic rulers of Spain and Pranee. Belgium and Hol-
land early established constitutional governments and the Bel-
' 'this par.iKr.-iidi (U-scribcs ihi- (onditiDii ;it ilu- bcgintiiiij,' of llic War of 1914.
THE SMALL STATES OF EUROPE 65 1
gian constitution served as a model for the framers of the con-
stitutions of the more Uberal German states.
Equally important are the contributions of the Scandinavian
states to the cause of freedom. More than thirty years before
the Swiss discarded the rule of the aristocratic oligarchy in
their Confederation the Norwegians had become thoroughly
democratized. In 1814 the nobility was abolished and a liberal
frame of government adopted. By outside pressure Norway
was forced into a union with Sweden and for nearly a hundred
years continual friction existed between the two states, until,
in 1905, by mutual agreement Norway became independent.
At the time of the separation from Sweden the people were
divided in their preference as to the form of government. Some
favored a republic after the model of the United States ; others
preferred a cabinet government after the English form, but
all were equally democratic. The subject was thoroughly dis-
cussed, and the difficulty of reaching agreement on a form of
republican organization led, finally, to the acceptance of the
monarchy. The people, however, remain in complete control
of their government. The King, who was chosen by the people,
accepts the condition that he is in no way to interfere with the
people's representatives in the management of public affairs.
The ministers are made responsible to a legislature of a single
chamber elected by universal suffrage,^ and all matters pertain-
ing to the Royal Household are subject to regulation by law.
Sweden, like England, has been developing a parliamentary
kingdom out of earlier monarchical forms, but the movement
toward democratic government has not yet gone so far nor
exactly along the same paths as in England. The Constitu-
tion of 1809, under which the country is now governed, took the
form of an agreement between the newly chosen King and the
Four Estates acting for the people, in which each party made
certain promises and certain concessions. Although the King
described himself as " Sovereign by the Grace of God and by
the right of birth," the Estates asserted their right to give to the
country a new constitution and to abolish all the fundamental
laws in force. They had deposed one King and now, in the name
of the people, invited Charles XIII to occupy the throne. Of
the three Scandinavian States, Sweden concedes the most
1 Suffrage now practically universal.
652 COMPARATIVE FREE GOVERNMENT
of royal authority to parliamentary monarchy. The Swedish
King retains much executive power as commander of the army
and navy, and as having a general initiative in political affairs.
He is granted general oversight and control of many details
of legislation and administration, and is invested with an
authority almost unlimited in the matter of external politics.
At the same time, he is obliged to choose a Council of State
whose members are his advisers, and every royal decree, except
military orders, must be countersigned by the Minister at the
head of the department most concerned, and this Minister is
responsible for the advice acted upon. The Swedish Riksdag
consists of two Chambers theoretically of equal powers. The
Upper Chamber, of one hundred and fifty members, is elected
by indirect proportional vote through the provincial and munic-
ipal councils. A candidate must be thirty-five years of age
and must have held for at least three years previous, land valued
at 50,000 kroner ($13,500) or have paid taxes on an annual
income of 3000 kroner (.S800). The term of office, since 1909,
is six years, one sixth of the members being elected annually.
The Lower Chamber, of two hundred and thirty members, is
elected once in three years by universal manhood suffrage of
those twenty-four years of age.
From 1665 to 1849 the little Kingdom of Denmark was under
an absolute monarchy. The first half of the nineteenth cen-
tury saw agitation for a constitution and the grant of slight
concessions to popular interest in the government. In 1849
the King and the national assembly adopted a constitution
which recognized a parliament of two representative Chambers
and made possible a comparatively free government. The diffi-
culties over Schleswig-Holstein and the resulting war with
Germany in 1864 led to its a])andonment and the substitution
of various short-lived constitutions. liut after the Duchies
of Schleswig-Holstein had been lost, the pe()i)le demanded the
restoration of the Constitution of 1849, and in 1866 the instru-
ment was reissued in a revised form.
Within the century the Scandinaxian stales have exhil)ited
all the varieties of kingly government from ahsokite monarchy
to extreme democracy. Autocracy has given place to constitu-
tional monarchy and constitutional monarchy to Parliamentary
monarchy, and in the case of \orwa\' the linal form is r;.'achetl.
THE SMALL STATES OF EUROPE 653
The history of Europe is thus rehearsed in these three small
states. Of late years Sweden and Denmark have been rapidly
following the example of Norway. The various unions and
attempts at union between the Scandinavian powers have
thrown important light on the general problem of federation.
Less fortunate has been the history of the Balkan States under
the deadly shadow of imperialism. Subject as they had been
for many centuries to the corrupt Roman Empire, followed
by a thousand years of the debasing rule of Byzantian imperial-
ism, they became in the fifteenth century a part of the tyrannous
Ottoman Empire. No chance has come to them to share in
the expanding thought, the fermenting life of Western Europe.
Crushed by the pecuUar type of persistent governmental
despotism for which the Turks have shown an actual genius,
all possibility of any sort of union among the various peoples
of Southeastern Europe has been forestalled and prevented.
Jealousy and discord between the diverse races have been sys-
tematically fomented according to Turkish policy. Distinc-
tions of race, language, religion, and sentiment have been care-
fully preserved. Suspicion and hatred have not been allowed
to yield to natural neighborly kindness and human brotherli-
ness even in the smallest villages and towns, where the different
peoples have gathered by themselves in hostile sections and
dwelt side by side in distrust and fear of one another. Indus-
trious r.nd frugal, they have been kept poor by oppressive Turk-
ish tribute and submissive by frequent massacres.
When at last this age-long subservience of the oppressed
nationalities began to break under the stirrings of a new life ;
when western ideas began to penetrate the darkened minds, and
one state after another emerged and achieved autonomy or
independence, then a new danger assailed the unhappy Balkan
peoples. They became the victims of plots and counter-plots
among the European powers greedy for dominant influence in
the crumbling Turkish Empire. It became the common prac-
tice of the powerful states of Europe to parcel out the territories
of Western Turkey among themselves with scant reference to
the interests of their inhabitants. Rising against intolerable
wrongs, the Balkan peoples in 191 2 waged a successful war of
independence ; but they were not allowed to enjoy the full
fruits of their victory. Ancient race hatred and jealousy sur-
654 COMPARATIVE FREE GOVERNMENT
vived, and a second conflict followed between Bulgarians and
Greeks and Servians, and it was the Balkan incident which was
made the occasion for beginning the War of 1914.
The modern states of Southeastern Europe have had a
brief history. Greece, the oldest, dates from 1830. Bulgaria
became autonomous after the war between Russia and Turkey
in 1877. Considering the limited time and opportunity for
development which they have enjoyed, they have made com-
mendable progress. Their present condition makes a profound
appeal to all lovers of liberty on account of their prolonged
endurance of imperial despotism. No people should yield to
despair, if Greeks can yet be Greeks again after two thousand
years of crushing tyranny.
Small States and International Law. — The smaller states
have an important place in respect to the development of
international law. Law among nations is analogous to
law among the classes within a single state. The common
people are the first to become law-abiding. In theory every
just rule of law implies equality, since it is equally bind-
ing upon the rich and the poor, the great and the humble. In
actual practice it is indeed long before real equality before the
law is achieved. In all states it is as yet an unattained ideal.
The humble obey the law, appreciating more keenly its advan-
tages, and they ultimately generate a force which will compel
or induce the great and the strong to become law-abiding.
Equality between states is a fundamental principle of inter-
national law. Regardless of size or strength or previous condi-
tion, all the states which the high contracting powers recognize
as sovereign or independent are accounted ecjual. All are alike
bound to observe international rules. All share alike the bene-
fits which they secure. A primary object on the part of the
great states of Europe that first began to formulate the rules
of international law, was to make an end of wars of conquest,
to assign to each state its metes and bounds, and to agree upon
rules for its protection; to substitute justice and fair dealing
in place of the brutalities of war. Numerous weak states were
acknowledged as independent, and as having cfjual rights with
all other states. The small states have uniformly observed
the rules of international law. They understand its advantages ;
they admire its principles of justice and equality. The power-
THE SMALL STATES OF EUROPE 655
ful states, on the other hand, have not been law-abiding. Among
nations, as between citizens within each nation, there is one law
for the humble and the weak and another law for the great and
the powerful. The small, law-abiding states, therefore, furnish
a sure reliance for developing a force which will compel or per-
suade the great to become law-abiding.
The problem is the same within the states and between the
states. It is the problem of democracy. There can be no
prevailing democracy in any state whose government is dis-
posed to encroach upon the rights .of other states. It is there-
fore the especial duty of the democracy in every state, great
or small, to rally to the defense of the weak states threatened
by unruly neighbors. If the weak can be made secure in their
rights, that will go far toward insuring international justice.
REFERENCES
Cambridge Modern History, Vol. XI.
DoDD. Modern Constiliilions.
Hall. International Laiv, 1904, pp. 47—51.
OcG. The Governments of Europe, Chaps. XXVIII-XXXIV.
Oppeneteim. International Laic, Two Vols., Vol. I, pp. 15-20, 170-177.
Seignobos. a Political Hislorv of Contemporary Europe, Vol. I, Chaps.
Vni, X; Vol. H, Chaps. x'VHI-XXL
CHAPTER LVII
South America and Free Government
To the student of politics South America is both an interest-
ing and a fruitful field. Numerous and striking contrasts are
to be found between her institutional life and that of the United
States or that of any of the free states of Europe. Forms and
principles of government are being tested under widely vary-
ing conditions. New illustrations of the difficulties to be over-
come in the attainment of free government are revealed on
every hand. Particularly is it made plain that governmental
forms and processes, if they are to be eUcctive, must be adapted
to the needs and conditions they must meet. Abundant evi-
dence is furnished of the familiar fact that a governmental
organization which may be entirely successful in one state
may be wholly unsuited for another. In the experience of
South America the problems inherent in artificial state building
are revealed in all their perplexing aspects. Lessons which the
nations of the world at large need to learn arc to be drawn from
both her failures and successes. Her institutional life is rich
in suggestion and throws light upon many political problems. It
is for this reason that careful study of South America is so much
worth while for those who are genuinely concerned about the
future of democracy.
It is well to be reminded thai (In- world has had much experi-
ence with what may be called |)a|Hr democracy; with institu-
tions that are democratic in llu-ory, but essentially oligarchic in
operation. Constitutions embodying principles of free gov-
ernment have been set up in many states which have been
l)owerless to control i)()liti(al practices. If history teaches
anything, it teaches the futiliiy of mere constitutional forms.
Written constitutions have their virtues and are aids in the
attainment of democracy if they are supi)orted by intelligent,
656
SOUTH AMERICA AND FREE GOVERNMENT 657
alert, liberty-loving people. But it requires more than a
written constitution, however democratic in character it may
be, to make a government free. It is trite, of course, to give
expression to so obvious a fact ; yet indisputably its significance
is not comprehended by multitudes of people who are content
with mere constitutional formalism and who, in the face of
long experience, confuse the shadow of liberty with the sub-
stance. One of the great lessons which believers in free gov-
ernment need to learn is that democracy is not a form or method ;
no more so than is religion a ritual or ceremony.
Perhaps nowhere are the effects of political formalism more
strikingly manifested than in the states of South America.
Though they have constitutions which have been carefully
drafted and which are adequate in themselves for the needs of
free states, yet free government, in the only sense in which that
term is properly used, namely, real popular government, does
not exist. The leaven of liberty is working, but to discuss the
democracy of South America is, generally speaking, to enter
the realm of prophecy and discuss what is yet to be. Never-
theless progress is being made and it is evident that in the future
development of the world-wide movement for freedom, South
America is destined to hold a prominent place. Her states will
be the scenes of intense struggles between the friends and foes
of free institutions. The cause of liberty and justice will win
in the end, just as it has won and is winning in other lands.
The final achievement of popular government may long be
delayed, for the obstacles to be overcome are both many and
great, but its ultimate triumph is certain. In this struggle
for liberty the free states of the world, large and small alike,
are deeply concerned. The possibilities that lie before the
South American states are too vast, their potential influence
upon world politics too great, for other nations to ignore what
they do or be indifferent to what they become.
It cannot be denied that political progress in South America
has been slow ; so slow, indeed, as to cause much questioning
concerning future developments. It is to be remembered, how-
ever, that real democracy is everywhere a thing of slow growth ;
it is an evolution, and its development can only to a degree be
forced by hot-house methods. The failures of the South
American states, whatever they may be, are not essentially
2U
658 COMPARATIVE FREE GOVERNMENT
different from those which long characterized the political life
of France, Italy, and other states which now rank high among
the nations of the world.
To comprehend at all clearly the working of political insti-
tutions in South America, it is necessary to consider some of
the reasons for her backwardness. The operation of govern-
ment is everywhere influenced, if not determined, by the eco-
nomic and social conditions that prevail. In the case of South
America this influence may perhaps be more in evidence than
in other countries, but in none is it absent. In considering the
shortcomings of the South American states, therefore, several
important social and economic facts should be kept in mind.
Failure to do this is likely to result in either a false understand-
ing of the manner in which the governments work, or great
injustice to the progressive leaders and thinkers of South America
who are laboring diligently to overcome the conditions which
retard her development. The fact is to be emphasized that it
is unfair to judge the states of South America by the standards
that are applied to the United States or England.
Reasons for South America's Backwardness. — An unbiased
analysis of South American politics can be made only by keep-
ing clearly in mind the background of Spanish despotism from
which the South American states slowly emerged. Though a
century has passed since the Spanish yoke was thrown off, the
spirit which characterized the exploitative, despotic Spanish
control still widely persists. The whole Spanish regime in
the South .American colonies was opposed to freedom and gave
no opportunity to their people to develop the qualities of mind
and character which are essential for citizenship in a free state.
It is a fact of supreme significance that the great majority of
the people of South America have no sufficient background
of local self-government, no adequate traditions of free govern-
ment upon which to build a democratic society. They are
without e.xpericnce in the processes of democracy, and have
little unrierstanding of its spirit or ideals. They lack the long
training that is necessary for the successful operation of free
institutions. In this respect they are notably different from
the [)eoi)le of North America, who have behind them centuries
of experience with local self-government and long-standing
traditions of jjopular rights and control. In the circumstances
SOUTH AMERICA AND FREE GOVERNMENT 659
it is hardly to be wondered at that progress toward political
liberty has not been more rapid in South America.
Another fact to be noted, but which needs little comment,
is that the great majority of the people of South America are
without education. Popular education has been sadly neglected,
even in the most progressive states, with the result that, con-
sidering South America as a whole, fully seventy per cent of
the inhabitants are illiterate. They therefore not only lack
the inspiration that comes from attempts in the past to acquire
and maintain popular government and equitable industrial
conditions, but are without understanding of their present prob-
lems and needs. Because of the prevailing ignorance there is
no extensive interest in democracy ; no general desire for free
government. In a truly democratic society public opinion is
the great controlling element ; but public opinion, as that
term is used in North America and in Europe, does not exist
in South America. The ignorance of the people and the gen-
eral indifference to political and social questions make an effec-
tive public opinion impossible, and constitute a dead weight
upon progress which is superlatively difficult to overcome. As
an eminent American sociologist suggestively remarks, there is
no " people " in the sense in which that term is commonly used
in the United States.^ There must, indeed, be a " people "
in order to have a public opinion. As would naturally be
expected, conditions are worst in tropical South America ; but
even in the temperate regions, where foreign influences are most
noticeable, interest in popular education and popular govern-
ment is far below the standard necessary for successful democ-
racy. Even in Argentina, which, on the whole, is the most
progressive of the South American states, government cannot be
said to rest upon the will of the people.
The absence of a real public opinion is not entirely due,
however, to the fact that the people are without education.
The lack of racial unity is a factor in the problem which is of
prime importance. The sharp racial distinctions lead to antag-
onisms, prejudices, and social differences which make the
formation of general public sentiment and the attainment of
united action exceedingly difficult. Professor Ross asserts
that " the distribution of the population into whites, mestizos,
' Ross, " South of Panama,"' p. 3,57.
66o C0MPARAT1\ i: 1-REE GOVERNMENT
and Indians makes well-nigh impossible the emergence of a
general will and of a government truly retlecting the general
will." ' This statement, however, is not to be taken as intimat-
ing that, because of lack of racial unity, government controlled
by public opinion cannot be obtained. The governments of
Switzerland, Canada, and the United States furnish abundant
proof to the contrary. Differences of race, language, religion,
and customs, divisive as they are in their influence, are not in-
surmountable barriers to unity of thought and purpose. In
the states of South America little effort has been made to bring
the races into harmonious relations and to develop in all the
people an interest in the common welfare and the ability to
give expression to the common will. That this work of har-
monization and education must be done, before efficient self-
government can prevail, cannot be questioned, and in it are
involved some of the most vital problems confronting the pro-
gressive leaders of South America.
Still another unfortunate condition is found in the existence
of caste and the greatest economic inequality. A wide and, as
yet, impassable gulf separates those who rule from those who are
governed ; those who have great wealth and live in luxury from
those who have little or nothing and live accordingly. The
caste spirit is strong and reveals itself in many forms of activity,
— social, industrial, political. In general, the land is held
in great estates and is worked for the benefit of the landowning
classes by those who are little better than serfs. Economic
op[)ortunity is for the few. There exist the extremes of wealth
and luxury on the one side and the extremes of poverty and
degradation on the other. A virile, liberty-loving middle class
such as has played so big a part in the achievement of free gov-
ernment in other lands is lacking. Comparatively little free
agricultural labor is found. This is esi)ecially the case in the
West Coast countries, where " the agricultural ])0])ulation is
in a state of dependence and stagnation, and there is no such
class of intelligent, independent small farnurs as have con-
stituted th(! backbone of democracy" in ilic United States.'
The general industrial system has been exploitative in character,
little consideration being given, as a rule, to the interests and
development of the workers. The inllucnce of this u|)on state
■ Ross, ".Soutti of I'aiiiirna," p. ,332.
SOUTH AMERICA AND FREE GOVERNMENT 66 1
activities is obvious. The powers of government have l)een
utilized for the protection and promotion of the interests of the
governing classes, — the wealthy landowners or the designing
military leaders who command followers of sufficient strength
to place them in power. It is plain that the establishment of
democratic government in South America will involve funda-
mental social and economic changes.
Fault not with the Constitutions. — Other reasons for the
backwardness of South America from the standpoint of democ-
racy might be given, but those mentioned are sufficient to
indicate the relatively slight advance that has been made and
to suggest both the fundamental character and the complexity
of the problems which must be solved before popular govern-
ment can be attained. The fact is clear and should be em-
phasized again that the fault of the political delinquency of
South America does not attach to the constitutions or to the
mechanism of government outlined in them. The constitu-
tional forms, in the main modeled upon those of the United
States, are adequate for peoples who know how to use them, but
the governments in operation, for the reasons suggested, fall
far below the standards which the constitutions prescribe. It
cannot be denied that the people, generally speaking, are not
prepared for citizenship in self-governing commonwealths.
Indeed, it may be said that the great leaders responsible for
the liberation of the South American colonies from Spanish rule
had no real comprehension of the nature and processes of free
government. They were profoundly impressed by the spirit
and achievements of the French Revolution and admired greatly
the Constitution of the United States, which they accepted as
a model for the constitutions of their own states ; but they failed
to see how fundamentally different the conditions in South
America were from those which prevailed in the United States.
Although the purpose was high and the spirit fine, it was in a
very real sense a case of the blind leading the blind. It would
be a mistake, however, to conclude that the South American
constitutions are without value. They embody, in large degree,
the ideals of self-government and, notwithstanding the imper-
fections of the governments that exist, they point the way to
the goal of liberty and are a constant challenge to the cham-
pions of democracy to press on in the fight for its ultimate
662 COMPARATIVE FREE GO\^RNMENT
realization. The substantial advance that is being made in the
more progressive states gives assurance of the linal triumph of
the forces of freedom throughout the whole continent. This
advance has come slowly, but it is real and is steadily gaining
in momentum. The great task of all of the South American
states is to develop a citizenship which is trained for its duties
and conscious of the responsibilities which free government
involves. This will require many years undoubtedly, but that
it will be done ultimately can hardly be questioned. In time
South America will be free.
REFERENXES
(For References, see Chap. LIX.)
CHAPTER LVIII
Cabinet and Unitary Government in Chile
A study of the formal constitutions and the actual opera-
tion of the governments of South America reveals the fact that
certain underlying principles of free government, as exempli-
fied by the free states of Europe and North America, are at
work and are competing for supremacy. The form of govern-
ment best suited, in the long run, for the people of South America
is not yet determined, but the development thus far is sufficient
to disclose tendencies which point to the probable outcome.
It is desirable, therefore, to take brief notice of some of the
outstanding facts in connection with governmental organization.
Both types of free government, cabinet and presidential,
receive recognition. The latter, due to the influence of the
United States at the time the South American colonies broke
away from Spanish control, is in form the prevailing type.
It may be questioned, however, whether either system has been
applied under conditions which afford fair opportunity for
judging its merits as a form of government suitable for South
America. In fact, a really fair test cannot be made of either
form until a citizenship capable of self-government is developed.
In illustration of the manner in which these main types of free
government have been utilized, reference may be made to the
so-called "A B C" nations — Argentina, Brazil, and Chile.
Following the example of Europe, Chile has attempted to apply
the cabinet principle, while Argentina and Brazil have endeav-
ored to develop presidential governments.
In some respects, it should be noted, cabinet government in
Chile resembles the French system, although there are impor-
tant differences. It is very unlike the government of England,
however. This dissimilarity is to be expected, considering
the fact that Chile and England are so far apart with respect to
the power of the people over the government. England, in spite
663
664 COMPARATIXE FREE GOVERNMENT
of legal forms to the contrary, is democratic. Chile, in spite of
constitutional forms to the contrary, is not democratic. It is
commonly said that from one hundred to one hundred and fifty
leading families control the Chilean government. Public
opinion is not the dominant force in the state. It is plain,
therefore, that cabinet government in Chile is more a name than
a reality, for true cabinet government necessitates real popu-
lar control through a popularly elected legislature. A brief
statement concerning the executive organization in Chile,
and the relation of the executive to the legislature, may be made
to good purpose.
The President and his Powers. — By the terms of the Con-
stitution, the executive authority is vested in the President and
the Ministers of State. The President is elected for a term
of five years and is ineligible for the next succeeding term. He
is chosen by an indirect process, similar to that which, in form,
prevails in the United States. Electors are chosen by direct
popular vote by the departments into which the several prov-
inces are divided for purposes of administration. These elec-
tors meet at a stated time and cast their ballots for President.
Records of the votes taken are sent to the Senate and, at the
time specified in the Constitution, arc ojicncd and counted at
a public joint session of the Senate and House of Deputies. If
no person receives a majority of all the votes, the duty of select-
ing the President devolves upon Congress, the procedure of
the election being prescribed in the Constitution. The Presi-
dent must be a native of Chile, at least thirty years of age, and
possess the qualifications necessary for membership in the House
of Deputies.
To the President, by constitutional provision, is confided
the administration and government of the state. His authority
extends to " everything which has for its object the preserva-
tion of internal public order and of the external security of the
Republic, observing and causing others to observe the consti-
tution and the laws." ' Many special powers arc enumerated
as belonging to him. Among these are the powers to take
part in the enactment of laws and to approve and promulgate
them ; to watch over the official conduct of judges and other
• Article 72 of the Chilean Constitution. Dodd, "Modern Constitutions," Vol.
I. p. 2.»s.
CABINET AND UNITARY GOVERNMENT IN CHILE 665
judicial oflEicers ; to appoint and remove ministers of state and
departmental officers, councilors of state of his own choosing,
diplomatic ministers and other foreign agents, and intendants
of provinces; to command the miUtary and naval forces; to
declare war with the previous approval of Congress ; to super-
vise the collection and expenditure of pubhc funds; to main-
tain political relations with foreign powers, receive their minis-
ters, and negotiate treaties.^ Other powers are named which
need not be mentioned here. Those given are sufficient to
show that, as far as the formal Constitution is concerned, the
President is a person of great authority and heavy responsi-
bilities.
Ministers and Council of State. — In connection with the
President must be considered the Ministers of State, or cabinet.
The number of these is not fixed by the Constitution, but by
law. Under the prevailing arrangement there are six minis-
ters who are heads of the following executive departments:
Interior ; Foreign Affairs ; Worship and Colonization ; Justice
and Public Instruction; War and Marine; and Finance, In-
dustry, and Public Works. All orders of the President must
be signed by the minister of the proper department, and with-
out such signature are invahd. Ministers are " personally re-
sponsible for all acts which they sign, and collectively respon-
sible for all acts subscribed to or agreed upon by them with the
other ministers." 2 They may be members of the Senate or
House of Deputies. If they are not members of Congress, they
may "attend the sessions of either house and take part in the
debates, but may not vote. They may be removed by the
President or impeached by Congress.
Another body to be noted in considering the executive or-
ganization is the Council of State. This consists of twelve
members, including the President, who is the Council's presid-
ing officer. Six of the members are chosen by Congress, three
by each house. The remaining five are appointed by the Presi-
dent. He is not entirely free, however, in making the appoint-
ments, but must choose from among certain officers named in
the Constitution. Cabinet ministers are ineligible for member-
ship. The function of the Council of State is advisorv in char-
' Article 7.^
* Artick' 78 of the Constitution. Dodd, " Modern Constitutions," Vol. I, p. 248.
666 co:mparative free government
acter, except in those cases in which the President is required
to act upon its advice. The President must consult with it
upon some matters and may do so upon all. It has the right
to propose the dismissal of ministers of state, intendants, gov-
ernors of departments, and other public officers, whom it con-
siders incapable or negligent. By provision of the Constitu-
tion the President shall submit to the Council, for its advice,
all bills which he desires to call to the attention of Congress;
measures passed by Congress and sent to him for his approval ;
questions concerning which the Constitution requires that the
Council shall be heard ; the annual estimates of expenses to be
submitted to Congress ; and any other matters upon which he
may wish to have the Council's opinion. For the opinions given
by them, the councilors of state are responsible and they may
be impeached if their advice is contrary to the laws. They
do not surrender office when a cabinet crisis occurs.
The Working of the Cabinet System. — It is clear at a glance
that the President, though nominally possessing large powers,
by no means has a free hand in the performance of executive
duties. He is restrained by both the ministers and councilors
of state. Moreover, the principle of parliamentary responsi-
bihty is carried to extreme. Congress is the controlHng element
in the government. The President, with the aid of the cabinet
and the advice of the Council of St^te, initiates legislation and
participates in the legislative process, but Congress determines
the fate of presidential measures. Every rejection of one of
these, important or not, by Congress involves the resignation
of the cabinet and the formation of a new ministry. The right
of appeal to the voters to settle the dispute between the exec-
utive and Congress does not exist. Because of the deter-
mination of Congress to rule, regardless of the fate of Presidents
and ministers, cabinets come and go with almost startling
ra[)idity. The instability of cabinets in Chile is far greater
than ever was the case in France. Changes occur so frequently,
in fact, that they arc not generally looked upon as serious or
even imf)()rtant. Tlic effect of this upon the work of adminis-
tration is obviously harmful.' It would rec|uire a permanent
' "The defect in the present ("hile.in system wliitli miikes itself felt most flis-
aKrce;il)ly consists in the fref|uent < hanRes of ministries. Excessive instability
ia thu» introduced not only into parliamentary and party life, but into the very ad-
CABINET AND UNITARY GO\'ERNMENT IN CHILE 667
civil service of high excellence, far superior to that which pre-
vails in Chile, to withstand successfully the demoralizing effects
of such lightning-like shifts among the heads of executive
departments.
It is to be observed that these frequent cabinet crises have
no relation to a general public opinion opposed to the policies
urged upon Congress by the President and the ministers. They
are due to the unwillingness of a majority of Congress to accept
executive leadership. The consequence is a domination by
Congress such as is hardly to be found in any other state. But
this domination is not the result of a popular demand, nor of a
clash between great political parties upon important questions
of pubUc policy. The congressional leaders are distrustful of
executive power. Although the President and the ministers
exercise a good deal of authority, they are clearly the agents of
Congress and are held accountable by it for what they do.
Whatever may be the theory of the Constitution concerning
the relation of legislative to executive powers, in practice there
is no balance or equilibrium between them. Congress governs
in Chile. Executive leadership of the character called for by
true cabinet government does not exist.
It is manifest that the cabinet principle has been applied
only imperfectly in Chile and the results have been far from
ministration of the republic. We have already seen that ministries change on the
average every four months. The record figure of ministerial change in any country
is certainly that of eighteen ministers of finance during one administrative period
of five years. On account of the confusion in Chilean party life a ministerial crisis
happens far more frequently than a real crisis of majorities in parliament. It has
been stated that only one out of every three or four crises really is the result of a
displacement of majorities in the house. The others depend on the temporary
shifting of groups and cliques, in which no principle whatever is involved. Such
changes rest entirely upon personal reasons, upon a desire of small groups of repre-
sentatives to acquire iniluence with the government, very often for the purpose of
gaining a merely local or personal advantage. The effect of this instability upon
the administration of public affairs may be imagined. . . . The ministers of state
lack continuity of experience. They are in many cases young men who have not as
yet acquired repre3cntati\e character, who are put in governmental positions be-
cause men of wider experience refuse to submit to the chances of political change.
The cabinets, indeed, do always contain men of real ability but they by no means
offer a field of activity in which great public characters may be developed through
continuity of experience and through a constant sense of responsibility for definite
policies and political principles. The tenure of the ministers docs not depend upon
their excellent conduct of affairs, but upon the shifting constellations of parliamen-
tary cliques and groups." — Paul S. Reinsch, "Parliamentary Government in
Chile," The American Political Science Review, Vol. in, p. 527.
668 COMPARATRE FREE GOVERNMENT
satisf actor}'. Naturally, a demand, though of uncertain
strength, has arisen for a change in the relations between the
executive and legislative authorities. For many years the belief
has prevailed among some progressive leaders that a much
larger degree of independence should be accorded the executive.
This was the issue, raised by President Balmaceda, which was
involved in the revolution of 1891. The Congressional faction
was successful and Balmaceda's efforts came to naught. Senti-
ment in favor of more effective executive leadership, however,
appears to be growing. The most radical reformers demand
the overthrow of the parliamentary system, carried on as it
has been to an extreme which is considered ridiculous, and the
substitution of a presidential system similar to that of the
United States. It is held that this is necessary in order that
great national policies may be formulated and successfully
carried out. Little or much may come, in the long run, from
the agitation for this reform ; its strength is merely a matter
for conjecture. But its continuance indicates that real dis-
satisfaction with the parliamentary system exists, and points
to an ultimate reorganization of the government.
Chile's Government Highly Centralized. — Xot only are the
two great types of free government given theoretical recogni-
tion in South America, but also both the unitary and federal
principles are utilized. Chile, again showing the influence
of Euro])e, particularly of France, has a unitary government
of the extreme lyi)e and may be cited to illustrate the use of
the unitary form in South America. Argentina and Brazil,
on the other hand, again followed the example of the United
States and established governments of the federal type. The
former made use of federation to unite provinces which, fol-
lowing independence, were inclined to maintain separate gov-
ernments; the latter, after the overthrow of the monarchy,
deliberately abandoned a unified government and establi.shed
commonwealths in order to make federation jxissible. This
was a very unusual action on the part of Hra/il. Federation
was perhaps a logical, natural system for Argentina to accept,
but hardly may thus be characterized in the case of Brazil.
In no other country of South America has the unitary prin-
ciple been carried to greater lengths than in Chile. It is fre-
quently said that a liighly cenlrali/.cd go\ernment is the only
CABINET AND UNITARY GOVERNMENT IN CHILE 669
kind that can successfully meet the needs of Chile, consider-
ing the unusual character of her territory. " The government
of Chile is wisely preserved as a centralized republic or ' uni-
tary ' system, in which the system of federation has been avoided.
In a country of such vast longitudinal extent, wherein political
conditions would perforce have to be made to coordinate with
chmatic zones, the federal system as enjoyed by Mexico or
Brazil could scarcely be conducive to national solidarity." ^
This statement may or may not be sound ; opinions will differ
as to whether mere climatic variations are seriously inimical
to federation. The fact is clear, however, that extreme cen-
tralization, of the French type, characterizes the government
of Chile. By the Constitution the territory is " divided into
provinces, the provinces into departments, the departments
into subdelegations, and the subdelegations into districts." ^
There are twenty-three provinces and one territory, which are
divided for administrative purposes into seventy-five depart-
ments. The subdelegations number 855, and the districts
3068. At the head of each province is an intendant, appointed
by the President. In the words of the Constitution : " The
superior government of each province in all branches of its
administration shall be vested in an intendant, who shall exer-
cise his power in accordance with the laws, and with the orders
and instructions of the President of the Republic, whose natural
and immediate agent he is." ^ The intendant's term of office
is three years, but he may be reappointed indefinitely. Re-
moval is by the President. The government of each depart-
ment is vested in a governor, who is subordinate to the intendant
of the province. Governors are appointed by the President
upon the nomination of the respective intendants. They
may be removed by the intendants with the approval of the
President. At the head of each subdelegation is an officer
known as subdelegate, who is appointed by the governor of
the department and is responsible to him. The power to re-
move subdelegates vests in the governor. The districts are
governed by inspectors who are appointed by and are under
the direction of the subdelegates. In each department, also,
I Enock, "The Republics of Central and South America," p. 304.
* Article 106. Dodd, " Modern Constitutions," Vol. I, p. 254.
** Article 107. Ibid.
670 COMPARATIVE FREE GOVERNMENT
municipalities exist under constitutional authorization. The
governor is made the administrative head of all municipalities
in his department. Municipal ordinances dealing with ques-
tions recognized by the Constitution as coming within the
powers of the municipalities, must be presented through the
intendant of the province to the President for his approval,
with the advice of the Council of State.
From this brief summary of the constitutional provisions
relating to Chile's internal administration, it may be seen
how highly unified the government is. The central authorities
control from the top to the bottom of the governmental system.
There is no local self-government comparable with that which
is held to be so essential in the United States. The results
of centralized control over local affairs in Chile are not always
good. As illustrative of this fact Professor Ross makes this
interesting statement : " The Government of Chile relieves
the cities of the burden of pavement, sewers, water-supply,
fire protection, police and hospitals, so that the municipality
has nothing to do but care for the streets and parks, light
them, and provide band music. Its taxation is limited to
three mills in the dollar. No doubt, the department of public
works has given some cities better water than otherwise they
would have. On the other hand, German-managed towns like
La Union and Osorno would have good drinking water if only
they might provide it for themselves ; but, thanks to their
dependence on remote Santiago, their water is bad and typhus
is rife." ' The evidence is abundant that the neglect of the
central government with respect to local conditions, suggested
in this statement, is not confined to questions. of water supply
anfl |)ublic health. It has fallen far short of both its oppor-
tunity and its duty with respect to problems of education,
morals, inrlustry, and the general social welfare.
It is important to note, however, that the failures of the
Chilean government are not due necessarily to the fact that it
is unitary and ncA federal in character. The difiiculty is
found in the fact that Chile is not democratic and those in
control of the government are not using the powers of the
state to promote the interests and welfare of the mass of the
people. A centralized government may l)e democratic, as
' Ross, " South of Panama," pp. 353-354.
CABINET AND UNITARY GOVERNMENT IN CHILE 67 1
England and France have demonstrated, and Chile may in time
meet her problems, both national and local, effectively and in
the spirit of wholesome democracy, without serious changes in
the structure of her governmicntal system. It is a significant
thing, which will be commented upon in the next chapter, that
the unitary or centralization principle is noticeably becoming
stronger in South America. The trend is away from federalism,
not toward it. However, if the unitary form is to prove per-
manently satisfactory, it must be thoroughly democratized and
made to serve all the people and not merely the few who govern.
REFERENCES
(For References, see Chap. LIX.)
CHAPTER LEV
Federation and Presidential Government in Argentina
As previously stated, the federal form of government finds
recognition in Argentina and Brazil. The United States Con-
stitution was a model for both. In the case of Argentina the
circumstances out of which federation developed were not
unlike those which led to the establishment of the great feder-
ated republic in North America. Jealous, warring Provinces,
with unstable governments, had to be united under an adequate
central authority in order to bring about peaceful relations,
and maintain conditions which would admit of permanent polit-
ical and industrial progress. As in the United States, a uni-
tary government, in the beginning, was impossible. The hope
of a satisfactory adjustment of the troubles confronting the
Provinces lay in a union of the federal type, in the control of
which all should have a fair voice. From the time independence
was gained from Spain until i860, however, the political life
of Argentina was characterized by struggles between the cham-
pions of federation and the advocates of a unitary government.
Because of the final acceptance of the federal i)rinci])lc, which
affords an interesting contrast with Chile and the other states
with unitary governments, as well as for the reason that Argen-
tina is the most advanced, most progressive of the South Ameri-
can states, it is worth while to consider her governmental or-
ganization in some delail.
The Provinces and the Nation. — As in any federated gov-
ernment, a question of fundamental imjiortance is that which
involves the relation of the Provinces to ihc central govern-
ment. It is seen that this relation is very similar to that which
exists between the Stales and the Nation in the United States.
Argentina consists of fourteen Provinces and Icn Territories,
the latter being completely under the control of the national
power. 'I'he Provinces, in theory, are autonomous common-
672
FEDER.VTION AND GOVERNMENT IN ARGENTINA 673
wealths with respect to their own internal affairs. The Con-
stitution declares that they shall have their own local insti-
tutions and be governed by them, and that they shall elect
their governors, legislators, and other provincial officers with-
out interference from the federal government. Article 5 reads :
" Each province shall adopt its own constitution which shall
provide for the administration of justice in its own territory,
its municipal system, and primary instruction, such constitu-
tion to be framed upon the republican representative plan, in
harmony with the principles, declarations, and guaranties of
the national constitution. Upon these conditions, the federal
government shall guarantee to each province the enjoyment
and exercise of its institutions." ^ The Provinces, thus, are
free to do as they please within their own constitutional sphere,
subject to the right of intervention by the national government,
to be discussed later ; but concerning the questions assigned
to the national government, they have nothing to say. By
specific constitutional provision, they retain all powers not
delegated to the Nation. Thus they possess the inherent or
original powers of government and the Nation has only the
conferred powers. The latter cover a wide range of questions,
however, so that the authority of the Provinces is greatly
restricted.
The Constitution places upon the Provinces a number of
specific prohibitions. They are forbidden to exercise any
power delegated to the Nation ; declare or wage war upon one
another ; enter into treaties or alliances of a political char-
acter ; pass, laws relating to domestic or foreign commerce or
navigation ; establish provincial custom houses ; coin money ;
enact any civil, commercial, criminal, or mining codes, after
Congress has enacted such codes ; pass laws on the subjects
of citizenship, naturalization, bankruptcy, and counterfeiting
of money or forging of government documents ; arm war vessels
or raise armies, except in case of foreign invasion or of danger
so immediate as to admit of no delay ; appoint or receive for-
eign agents, or admit new religious orders.-
In their relations to one another, the Provinces in Argen-
tina hold a position quite similar to that of the commonwealths
in the United States. The Constitution requires that full
* Dodd, " Modern Constitutions," Vol. 1, p. 4. ■ Article 108. Ibid., p. 28.
2X
674 COMPARATIVE FREE GOVERNMENT
credit shall be given in each Province to the public acts and
judicial proceedings of all the other Provinces, under rules
prescribed by Congress. The citizens of each Province enjoy
in all the others the rights, privileges, and immunities belong-
ing to the citizens of such other Provinces. The extradition
of criminals is obligatory upon the Provinces.^ Interference
with freedom of travel and freedom of commerce among the
Provinces is forbidden. To all of the inhabitants of the Nation
are guaranteed the rights " to work and engage in any lawful
industry ; to navigate and engage in commerce ; to petition
the authorities ; to enter, remain in, travel through, or leave
the Argentine territory ; to publish their ideas through the
press without previous censorship ; to use and dispose of their
property ; to associate together for useful purposes ; freely
to profess their religion ; and to teach and to study." ^
Intervention and State of Siege. — In two ways, particularly,
the relation between the Provinces and the central government
in Argentina differs from that which holds between the common-
wealths and the national government in the United States. In
Argentina the national government, under certain circumstances,
may intervene in the affairs of the Provinces, and in case of
domestic disturbance or foreign attack may proclaim a state
of siege in the Province or Territory involved. These are
important matters from the standj^oint of constitutional law
and deserve some consideration, even though the rights in-
volved may seldom be asserted. They signify that the Prov-
inces, even in theory, are by no means independent of the central
authority.
By the Constitution the national government may intervene
in any Province for any one of four i)urposes : to guarantee
the republican form of government ; to repel foreign invasion ;
to maintain the constituted authorities of the Province in power,
when requested by them to do .so; and to reestablish them if
they have been flejjosed by sedition or by invasion from another
Province.'^ In the case of the first two, intervention may occur
uf)()n the initiative anrl at the will of the national executive;
in the last two, upon the request of the provincial authorities.
" \\'li;it happens in case of an intervention is the following.
' Articles 7 and 8. Dodd, " Modern Conslilutions," Vol. I, p. -i.
* Article 14. Ibid., v. 5. ' Article 6. Ihid.. \>. .\.
FEDERATION AND GOVERNMENT IN ARGENTINA 675
The National Government sends to the province an Interventor
with his secretary and other personnel requisite, and, according
to the circumstances, accompanied or not by national troops
of soldiery. On arrival at the province, the Interventor be-
comes the supreme authority and it is his duty to carry out the
objects of his intervention with the least possible delay. He
inquires into the circumstances which have made his inter-
vention necessary and then takes steps to re-establish the repub-
lican form of government, that is to say, he sees that the authori-
ties provided by the Constitution are legally constituted. Some-
times, in case of what is called a revolution, his duty is limited
to replacing the deposed Government in power. If, however, he
finds that the revolution is justified by the actions of the local
government, he declares the authorities deposed and calls for
fresh elections. The power of intervention is a most serious
one and, practically, places the provincial governments in a
state of dependence on the National Government, as it will be
readily seen that, if a provincial governor does not fall in with the
views of the National Executive, there is nothing easier than
to take advantage of any local emeute, which is easily got up,
and intervene ' motu proprio ' to restore the republican form
of government. A sympathetic interventor can be relied upon
to do the rest." ^
The right to proclaim a state of siege belongs to Congress, if
it is in session when the occasion arises, and to the President,
if Congress is not in session. This procedure is authorized in
case of domestic disturbance or foreign attack which endangers
the observance of the Constitution and the safety of the authori-
ties created by it. During its continuance, constitutional
guaranties are suspended within the Province or Territory in
which the disturbance occurs. To show the purpose and signifi-
cance of the state of siege, the words of the writer last quoted
may be used. " Unfortunately this measure has had to be
resorted to with much greater frequency than the compilers of
the Constitution ever contemplated. The declaration of a
State of Siege in Argentina is not, however, a declaration of
martial law. It is practically the same thing as is, in Great
Britain, a suspension of the Habeas Corpus Act. Its applica-
tion is strictly limited to the National Government and can-
• Pennington, "The Argentine Republic," pp. 64-67.
676 COMPARATIVE FREE GOVERNMENT
not be usurped by the provincial authorities. . . . The dec-
laration of a State of Siege does not give any punitive powers
to the Executive. The President can neither condemn nor
impose punishment. He can arrest any person and convey him
to another part of the Republic. In actual practice, when a
state of siege is declared, the Press is warned not to do or pub-
lish anything which may in any way diminish the effects of the
measure. Any journal daring to disobey this order is summarily
closed either for a few days until repentant or for the whole
period of the suspension of the guaranties. Foreigners, who
may be deemed detrimentals, are sent out of the country by
the authority of a special law which does not require a state
of siege for its application. Argentine citizens are sent away
from the district where they have influence. Frequently they
are retained on board a man-of-war or, in extreme cases, they
may be sent down to the cool regions of Tierra del Fuego or
Staten Island. The declaration of a State of Siege in no way
puts an end to personal rights, except as immediately affected
by the causes which have been the ground of the dictation of
the measure. In other respects, the constitutional privileges
of every inhabitant of the country suffer no interruption. This
fact was very remarkably shown during the state of siege de-
clared in consequence of the assassination of the Buenos Aires
Chief of Police. The National Government declared a state
of siege over the whole country with the object of dealing with
anarchists and anarchy. Several provincial governors took
advantage of the measure to put in [)rison persons whose actions
were politically disi)leasing to them. These governors had
their knuckles sharply rapped by the National Executive and
were ordered, not only to release the persons whom they had
im[)risoned, but also to take no steps against anyone without
first obtaining the authority of the Minister of the Interior.
A State of Siege must therefore not be confounded with martial
law, with which extreme step it has practically nothing in
common." '
The National Congress and its Powers. In the organi/.a-
lion of the national governmcnl I he principle of ihc separa-
tion of [Kjwers is followed, the authority of each (lcj)artnient —
legislative, executive, and judicial - being specifically stated
' I'cnninntDn, " 'I'hc Ar>,'cnlinc Kcpuhlif," i)p. 67-68.
FEDERATION AND GOVERNMENT IN ARGENTINA 677
in the Constitution and protected against infringement. A brief
outline of the departments and their constitutional powers
will be given.
The Congress, in which is vested the legislative power of
the Nation, is composed of two houses, the Senate and the
House of Deputies. The Senate is representative of the Prov-
inces and the national capital, each Province and the capital
being entitled to two Senators. Those from the Provinces
are elected by a plurality of votes of the respective provincial
legislatures, while those from the capital are chosen by an elec-
toral college, such as is employed for the selection of the Presi-
dent. The term of office is nine years, one third of the mem-
bership being chosen every three years. Senators are eligible
for reelection indefinitely. The qualifications for election as
Senator, as prescribed in the Constitution, are the attainment
of the age of thirty ; citizenship in the Nation for six years ;
an annual income of two thousand pesos in coin or an equivalent
amount of capital ; and nativity in the Province which elects
him or residence therein for the two years immediately pre-
ceding. Each Senator has one vote. The Vice President of
the Nation is the presiding ofl&cer in the Senate, but has no
vote except in case of a tie.
The House of Deputies is representative of the people of the
Provinces and of the capital. Its members are chosen by direct
vote, a simple plurality being sufficient to elect. The constitu-
tional unit of representation is one deputy for every thirty-
three thousand inhabitants or fraction thereof not less than six-
teen thousand five hundred. After each census, which shall
not be taken more than once in every ten years, Congress is
required to fix the ratio of representation upon the basis of such
census ; this ratio may be increased beyond the constitutional
unit, but not diminished. The manner of election is prescribed
by a general law of Congress. Deputies must be twenty-five
years of age, citizens of the Nation for four years, natives of the
Provinces from which they are chosen or residents thereof for
the two preceding years. They serve for four years and are
eligible for reelection, one half of the members being elected
every two years.
The regular session of Congress begins on the first day of May
of each year and continues until the thirtieth of September.
678 COMPARATI\'E FREE GOVERNIMENT
Extraordinary sessions may be called or the regular sessions may
be extended by the President. Each house is judge of the quali-
fications and elections of its own members and determines its
o\vn rules of procedure. Neither house is permitted to transact
business without the presence of a majority of all its members.
The remuneration of Senators and Deputies is fixed by law and
is paid out of the funds of the national treasury. The initiation
of laws relating to taxes and to the recruiting of troops belongs
exclusively to the House of Deputies, as does the right to vote
impeachments. The trial of impeachment cases is by the
Senate. Members of religious orders are prohibited from serving
in Congress and provincial governors may not represent their
Provinces during their terms of office. Members of Congress
are forbidden to receive appointments or commissions from the
executive without first obtaining the consent of the house to
which they belong. The customary freedom from arrest during
sessions of Congress and from responsibility for the things said
in the discharge of their duties, arc accorded members of both
houses.
Laws originate in either house by means of bills introduced
by the members or by the executive. A bill passed by both
houses is sent to the President for his approval. If he approve,
the legislative process is completed and the measure is promul-
gated as law. Ten working days are allowed the President
in which to consider a measure submitted to him. If it is not
returned within that time, the bill becomes a law without execu-
tive approval. The President's veto may apply to a bill wholly
or in i)art. A measure thus rejected must be returned to the
house in which it originated, with a statement giving the reasons
for executive disapproval. To overcome the veto a two-thirds
majority is necessary in each house. The vote upon a bill vetoed
by the President must be by yeas and nays, and the names of the
members voting, together with the reasons upon which their
votes were based, and the objections of the President, must be
immediately i)ublisheri in the press.
The- conslitulional powers of Congress cover a wide range of
questions. It is unnecessary to give these in detail, but mention
may be made of the [)ower to impose import and export duties,
which shall be uniform throughout the Nation ; to levy direct
taxes when occasion ck-niands ; U> borrow money on the credit
FEDERATION AND GOVERNMENT IN ARGENTINA 679
of the Nation ; to arrange for the payment of the Nation's debt
and provide for its fiscal needs ; to grant subsidies to those
Provinces whose revenues are insufficient to meet their ordinary
expenses; to regulate the free navigation of rivers; to coin
money and adopt a uniform system of weights and measures ;
to enact civil, commercial, penal, and mining codes ; to pass
general laws on naturalization, citizenship, bankruptcy, counter-
feiting of money, and establishment of trial by jury ; to regulate
commerce among the Provinces and with foreign nations ; to
establish and regulate post offices and post roads ; to govern the
national Territories and create new Provinces ; to establish
national courts inferior to the Supreme Court of Justice ; to
authorize the executive to declare war or to make peace ; to
approve or reject treaties with other nations ; to provide for
the military and naval forces of the Nation and establish regu-
lations for their government ; to proclaim a state of siege in one
or more places in the Nation in case of internal disorder and to
authorize the calling out of the militia of any or all of the Prov-
inces if the need arises ; and to make all laws and regulations
which shall be necessary for carrying into execution the powers
granted to Congress and all other powers vested by the Constitu-
tion in the government of the Argentine Nation. It is impossible
here to discuss the constitutional law of Argentina from the
standpoint of legislative authority, but it is plain that the powers
of Congress are exceedingly broad and include all matters that
are not distinctly local and provincial in character. As far as
the Constitution is concerned, Congress is representative of the
people, through the electorate, and the way is open for effective
public control in all great questions of national policy. The
Congress, in composition, organization, and powers, is adequate
as an instrument of democracy ; the need in Argentina, as in
all of the South American states, is for an intelligent, responsible,
efficient citizenship.
The Executive Department. — The executive power of Ar-
gentina is vested in the President, who is assisted by eight
ministers or secretaries. Provision is made for a Vice President
to take the place of the President in case of the latter's illness,
absence from the capital, death, resignation, or removal. Both
of these officers are chosen by an indirect process, almost identical
with that which is prescribed by the Constitution of the United
68o COMPARATIVE FREE GOVERNMENT
States for the election of President and Vice President. The
capital and each of the Provinces elect, by direct vote, an elec-
toral college which consists of twice as many members as the
number of Senators and Deputies constituting their respective
representation in Congress. Members of Congress and officials
receiving pay from the federal government are disqualilied from
serving as presidential electors". Four months before the expira-
tion of the presidential term, the electors chosen by the Provinces
meet in their respective provincial capitals, and those chosen by
the capital in the capital, and proceed to elect by signed ballots
the President and Vice President, separate ballots being used.
Two lists are made of all the persons named for President and
two of those named for Vice President, with the number of votes
cast for each. Two of these lists, one of each kind, properly
authenticated, are sent to the president of the Senate, and the
other two are filed with the president of the provincial legislature,
and, in the case of the capital, with the president of the munic-
ipality. In the presence of both houses of Congress, the ballots
are opened by the president of the Senate and are counted by
four members of Congress selected by lot. Those receiving in
each case an absolute majority of all the votes are immediately
proclaimed President and Vice President. If no one receives
the necessary majority. Congress is authorized to elect, by verbal
vote, one of the two i)ersons receiving the highest number of
votes. If the highest vote is in favor of more than two persons,
Congress must make its choice from among all of them. This
choice must be made by an absolute majority. In case of a tie,
the vote is repeated immediately, and if it again results in a tie,
the president of the Senate casts the deciding ballot. The
election must be concluded in a single sitting of Congress, the
presence of three fourths of all the members being necessary.
The President is made the chief magistrate of the Nation and
is given charge of its general administration. He is given power
to issue instructions and regulations necessary for the execution
of the laws ; to assist, in the manner prescriberl in the Constitu-
tion, in making the laws and to promulgate them ; the power to
veto, wholly or in part, measures which he flisaj)proves ; to
grant pardons and commute ])unisliments in cases subject to
federal jurisdiction, excej)t imix-achments ; to ai)point and
remove, with the advice of the Senate, the Nation's diplomatic
FEDERATION AND GOVERNMENT IN ARGENTINA 68 1
representatives, and by himself, without senatorial action, min-
isters of state, officials of the departments, consular agents, and
all other government employees whose appointment is not other-
wise provided for by the Constitution ; to open the annual
sessions of Congress and to recommend legislation which he con-
siders necessary and expedient ; to extend the regular session of
Congress or summon it in extraordinary session ; to supervise
the collection and expenditure of public funds as provided by
law; to negotiate treaties and receive foreign ministers and
consuls ; to command the land and naval forces of the Nation ;
to declare war, with the authority and approval of Congress;
and to declare, with the consent of Congress, a state of siege,
in case of foreign invasion, and upon his own authority, when
Congress is not in session, in case of internal disorders.^
The President is assisted by the ministers of state, who, by
the constitution, " shall have charge of the affairs of the nation,
and shall countersign and attest the acts of the President by
means of their signatures." - This countersignature is necessary
for the validity of the President's acts. Each minister is indi-
vidually responsible for the acts signed by himself and jointly
with the other ministers for all acts agreed upon between him and
his colleagues. Individual action, on the part of a minister, is
confined to the internal affairs of his own department, the work
of which is prescribed by law. Ministers are required to submit
detailed reports to Congress at the beginning of each session.
They may attend the sessions and take part in the debates,
but do not have the right to vote. No minister may serve either
in the Senate or the House of Deputies without first resigning
his position as minister.^ The ministers do not constitute a
cabinet in the parHamentary sense. Their position is similar
to that of the President's cabinet in the United States. Unlike
the latter, however, they have definite constitutional status.
The departments which the ministers direct are as follows : In-
terior ; Foreign Affairs and Public Worship ; Finance ; Justice
and Public Instruction; War; Marine; Agriculture; Public
Works.
The Judiciary. — The judicial power of Argentina is vested
in a Supreme Court of Justice and in such inferior courts as
'Article 86 of the Constitution. Dodd, "Modern Constitutions," Vol. I, pp.
23-25- 2 Article 87. //-/'/., p. 25. ' .\rticles 88-93. Ibid., p. 26.
682 COMPARATIVE FREE GOVERNMENT
Congress may establish. The President is specifically forbidden
to exercise judicial functions. The judges of the Supreme Court
and of the inferior courts, appointed by the President with the
approval of the Senate, hold their office during good behavior,
and are subject to impeachment by the House of Deputies.
No person is eUgible for membership in the Supreme Court who
is not a lawyer with at least eight years' practice in the national
courts, and who does not have in addition the qualifications
necessary to be a Senator. The Supreme Court makes its own
rules of procedure and appoints its subordinate employees.
Rules for the inferior federal courts may be prescribed by Con-
gress. The important lower courts, established by Congress,
are the Appeal Courts and the Inferior Courts or Courts of First
Instance. Each Province, of course, has its own judicial
system.
The constitutional jurisdiction of the Argentine national
courts is very much like that of the federal courts in the United
States. It extends to all cases arising under the Constitution,
the laws of Congress, or treaties with foreign nations ; to cases
concerning ambassadors, public ministers, and foreign consuls ;
to admiralty and maritime causes ; to controversies to which the
Nation is a party ; and to cases which arise between two or more
Provinces, between one Province and citizens of another Prov-
ince, between citizens of different Provinces, and between a
Province or its citizens and a foreign state or its citizens. In
all cases concerning foreign ambassadors, ministers, and consuls,
and in those to which a Province may be a party, the Supreme
Court has original and exclusive jurisdiction. In all other
cases, it has ap{)ellale jurisdiction under such rules and excep-
tions as Congress may establish.
The Government in Operation. — It is of especial importance
to l)ear in mind that the government of Argentina, as described
in the foregoing [)aragraphs, is the government as outlined in the
formal Constitution. The government in actual operation
differs from this very materially. This is true, as has been
pointefl out, in all of the states of South America; indeed, it is
true to a greater or less degree of all nations that have formal,
written constitutions. In the case of the South American states,
however, the departures from constitutional forms have fre-
quently involved practices that are far less democratic than those
FEDERATION AND CJOVERNMENT IN ARGEN'JTNA 683
which the Constitutions prescribe, whereas in other countries, the
United States for instance, extra-constitutional practices have de-
veloped as a result of a growing democracy. In Argentina, as in
Chile, Brazil, and other countries of South America, representa-
tive government has fallen far short of the requirements of the
Constitution.' The balance among the departments, demanded
by the doctrine of the separation of powers, is by no means
maintained. The executive dominates the government to a
degree not contemplated by the framers of the Constitution.
Particularly the President is unduly influential in the selection
of his successor. Indeed, not infrequently he is able to dictate
his successor through the control which the government party
has over presidential elections. Judicial administration is
notably weak and often corrupt. This is especially the case
with the lower courts, but even the standing of the Supreme
Court is far below what it should be. Public opinion does not
control the government. Popular interest in the election of
public ofiicers is lax. In spite of a system which makes use of a
secret ballot and of compulsory voting, large numbers of voters
do not participate in the elections. The power of the caudillo,
or political boss, is great, and party life can hardly be said to
exist. The Socialists alone seem to constitute a real party.
Corruption and force are frequently resorted to in elections.
The government, though more liberal, more democratic than
that of Chile and most of the other governments in South
America, is nevertheless undemocratic, as yet, in spirit and
methods. In the Provinces as well as in the Nation political
authority is in the hands of the few, and not in the possession
1 "However generous any particular constitution may be in allowing for the
participation of the people at large in government, the fact remains that, to all
intents and purposes, the Latin-American countries are ruled cither by a virtual
autocrat whose effective support comes from certain classes and not from the great
body of the people themselves, or else by a relatively small number of persons iden-
tified with the interests of the wealthy and the well educated. Professional men,
rather than those concerned primarily in industrial pursuits, are apt to be the domi-
nant factor in politics.
"Possibly the two kinds of actual government in rjucstion are the only ones that
are feasible under present conditions. To establish a more liberal system, so long
as the masses remain uneducated, might be unwise. The Lalin-.\merican govern-
ments, at all events, do not appear to rest on the people, broadly speaking, but only
on the 'political' people, on that portion of the population which is believed to possess
the knowleflge and intelligence needful to enable its members to assume an active
share in public life." — Shepherd, " Latin America," pp. 142-143.
684 COMPARATIVE FREE GOVERNMENT
of the common people. Federation has not worked out as
planned in the Constitution. The national government has
dominated provincial politics to a high degree. The central
government has extended its activities so widely, in fact, that it
" threatens to throw the federal system out of balance." ^ In
practice, therefore, the unitary principle has prevailed to a large
extent, and a tendency away from federalism seems clearly
discernible.
Argentina Becoming Free. — But when all of the adverse
criticisms of Argentina are made, and the fact is demonstrated
that the theory and practice of her government are widely
divergent, it must still be admitted that she is moving steadily
forward to a better political and social order. The spirit of
democracy is developing, and a demand for general social im-
provement is growing. Though the control of the government
has, in large measure, been somewhat oligarchic in character,
yet the domination of the wealthy landowners has been far less
complete than in Chile and other South American states.
Many governmental projects, particularly in the promotion of
internal improvements, such as railways and irrigation works,
have been carried through which were clearly not beneficial to
the great landed interests. .Mthough the percentage of illiteracy
is high, amounting to fully fifty per cent, yet the standard of
education is superior to that of any other South American nation
and is slowly being raised. While it is true that the interests
of property have commonly been given more consideration than
those of humanity, yet much labor and social welfare legislation
of an advanced type has been enacted. The development of the
Socialist movement is indicative of a growing social unrest and
points to a larger democracy both in government and in industry.
Argentina, in fact, has made rapid and very substantial progress,
particularly from the material point of view, but rt seems certain
that the future, f)erhaps the near future, is to witness a develop-
ment that will greatly transcend her [)resent attainments. She
is in the process of becoming a great free state and is attaining a
place of influence among the nations of the world.
Argentina Contrasted with Australia. — Professor Ross quotes
a suggestive comparative statement made by the eminent sociol-
ogist, Ernesto Quesada, on return from a visit to Australia, with
' Ross, " Soutli «f I'anama," p. 348.
FEDERATION AND GOVERNMENT IN ARGENTINA 685
the remark that " there is no better appraisal of the Argentine
state." The statement follows :
" There as here immense territory and sparse population.
There as here stock-raising and agriculture lead while manu-
facturing is secondary. In the one country as in the other is
forming a new race ; there homogeneous, here heterogeneous.
The economic and social problems are the same in both countries,
but their solution is diametrically opposed : here, the individual-
istic criterion governs, there the socialistic.
" Both are countries of immigration : but there it is retarded
by racial, linguistic and social standards, while here the gates
are open to all. Both export meat and grain, but there the State
fosters production and exportation, while here they are left to
individual initiative. Both borrow foreign capital, but there
the loans are expended in productive works and the State assumes
the administration of undertakings of a monopolistic nature,
such as transportation, insurance, refrigeration and like in-
dustries, representing a business based on the interest of the
community ; while here the State divests itself of the conduct of
such enterprises even if perchance it has them in its hands,
as once it had certain railways, and leaves to private enterprise
such important public services as telephones, lighting, and
docks. There no danger of trustification of any industry because
the State intervenes and assumes its management ; here private
capital is left free to combine, in form more or less covert, and
constitute true monopolies. There the absence of great private
companies conducting public industries which employ thousands
of persons makes unknown the political influence which these
inevitably exercise ; here such companies wield a considerable
influence, which they may be tempted to use, by means of the
vote of their employees or by the natural seduction of favors
direct or indirect, to the injury of democracy. There the settlers
are aided with loans from the public treasury ; here they are
abandoned to the banks and the private money lenders. There
likewise certain agricultural or stock-raising industries are helped
by the credit of the State ; here the State does not intervene
in what is considered to be a matter of private concern. There
despite such financial interventions the Treasury reports regu-
larly show a surplus ; here, in spite of withholding public money
from such purposes, they generally close with a deficit.
686 cojNiPAR.vrnE free government
" Finally, — to sum it all up, — there the functions of the
State are extended wherever the public welfare requires it, and
no individual right is valid as against that of the collectivity ;
here the radius of government action is limited and the State
maintains intact the private right of each which the general
interest may not set aside." ^
Tendency Toward Centralization. — In conclusion, attention
should be directed to what, from the standpoint of governmental
organization, is the most significant tendency in Argentine
political life, — the tendency to develop a unified, centralized
government. This, however, is not peculiar to Argentina, for,
taking the South American states as a whole, it is uncjuestionable
that centralization is the outstanding feature of government.
The fact of special importance in the case of Argentina is that
federalism, formally accepted as the basic principle of the con-
stitutional system after years of struggle between the federalists
and the unitarians, is giving way before the advance of a develop-
ing nationalism. Whether or not this will continue until the
final overthrow of federation and the acceptance of a unitary
government, no one can say. The tendency, however, is plain.
Federation, without doubt, is weaker than it used to be; cen-
tralized government is stronger.
The question naturally arises as to the reasons for this devel-
opment. Several points should be noted : the ignorance of
the mass of the people; the lack of interest in public affairs;
the general absence of traditions of local self-government ; the
survival of autocratic ideas and practices developed during the
colonial regime; the effect of the prevailing legal system upon
governmental organization and methods ; the influence of con-
tinental Europe ; and, particularly, the influence of France in her
attemi)ts to erect a free government upon the ruins of an abso-
lutism largely identical with that which so long characterized
the rule of Spain both at home and in the South American col-
onies. It is to be observed, however, that these suggestions are
not [jcrtinent in connection with Argentina alone ; they aj)f)ly with
equal force to the other South American states. Some of them
have already been discussed and need only be mentioned here.
Influence of France and the Roman Law. Two jioints,
though, descrsf special enipliasis : llic cUcct of the Roman Law
' Ross, " South of I'iinama," pp. 383-385.
FEDERATION AND GOVERNMENT IN ARGENTINA 687
system upon government, and the influence of France. The
former is discussed at length in a preceding chapter ; all that is
necessary here is to suggest the applicability of the ideas there
developed to the political life of South America.^ It was pointed
out that political institutions in countries accepting the Roman
jurisprudence are different from those of countries in which the
English Common Law is basic. In the two systems the emphasis
upon public rights and upon private rights differs. Under the
former, the executive branch of the government, under the latter,
the legislative branch, is the dominant element. In other
words, administrative control, in general, characterizes Roman
Law nations, while legislative control characterizes Common
Law countries. It is to be expected, therefore, that presidential
government in Argentina, and cabinet government in Chile, will
develop along lines which are materially different from those
followed respectively in the United States and England, just as
cabinet government in France differs fundamentally from the
English system upon which it was modeled. Centralization
is natural in South America, and it seems safe to assume that it
will permanently characterize the governments of her states.
The problem in South America, as has been the problem in
France, is to democratize centralized government ; to develop
democracy from the top downward, — the reverse of the process
in England and the United States. In this development the
example of France is markedly influential. People of education
and culture throughout South America speak the French lan-
guage and are familiar with French literature and French politi-
cal experience. They find in the history and development of
France inspiration for the settlement of their own respective
national problems. Indeed, it seems to be a fact that France,
more than any other nation, is marking the path which the South
American states are to follow in their efforts to attain free
institutions. The signs discernible by a careful study of the
political life of South America point to the ultimate achieve-
ment of governments of the French type, — of centralized
democracies.
» Chap. XLIX.
688 COMPARATIX'E FREE GOVERNI^IENT
REFERENCES
Clemenceau. South America To-day.
DoM\TLLE-FiFE. Great States of South Avierica.
ExocK. The Republics of South and Central America.
Latin America, Clark University Addresses, 1913. Edited by George H.
Biakeslee.
Pennington. The Argentine Republic.
Porter. The Ten Republics.
Reinsch. "Parliamentary Government in Chile," The American Political
Science Review, Vol. Ill, p. 507.
Ross. South of Panama.
Shepherd. Latin America.
CHAPTER LX
Federation and Democracy
A CONFEDERATION is ail association of otherwise independent
states for purposes of common defense and the regulation of
common interests. Each of the States thus united retains its
sovereignty, and the officers of the confederation are dependent
upon the States for the execution of the policies agreed upon.
This form of association prevailed among the states of ancient
Greece and more recently among Swiss Cantons and German
States. Such was the form of union among the American States
until the adoption of the Constitution of the United States.
A federation, or a state having a federated form of government,
is one which has a central government exercising supreme
authority over matters of common interest, but which reserves
to the governments within the local areas the control of local
affairs. A federation involves the partition of the powers of
the state between central and local governments. The United
States became a federation under the Constitution of 1789.
Swiss Cantons were united under a federal government by the
Constitution of 1848. The fact that the words confederation and
federation are often used as synonyms tends to promote confu-
sion between the two plans of union. Germans give accurate
expression to the distinction in the terms Staaknbitnd , meaning
a league of separate states, and Bundesstaat , meaning a true
federal union of the states under one general government.
Since democracy and the federated form of government have a
common origin, there is evidence of a necessary connection.
Democracy on a large scale is difficult of realization apart from
federation, and that form once attained becomes itself a teacher
of democracy.
When fugitives from the oppressions of the Old World formed
colonies in North America the experiment began which finally
resulted in a federal government. The settlements could not be
2Y 689
690 COMPARATT\'E FREE GOVERNMENT
governed from the mother country ; they governed themselves
in town, parish, and county, and managed affairs of general interest
through the colonial legislatures. The colonists became every-
where devoted to the privilege of self-government. They were
ready to light rather than submit to English domination. Even
the Cavaliers of Virginia who had sided with the Stuart mon-
archy in England would not peaceably submit to Stuart rule in
Virginia. They would accept the ritual of the English Estab-
lished Church, but they would not tolerate an English bishop.
They were fully determined to govern themselves both in church
and state ; and when the time came for independence, the Vir-
ginian Cavaliers were not a whit behind the New England Puri-
tans in devotion to their cause or in the efficiency with which
they supported it. Liberty was the vital principle in the air of
the New World, and liberty meant to all the colonists the per-
manence of their control over their own local institutions.
Cooperation between the colonies in matters of common
interest grew up early. In 1643 four New England colonies
formed a league, or confederation, which lasted for forty years.
With the encouragement of the British government, attempts
were made to draw all the colonies into a union for greater
efficiency in warding off attacks of the French from Canada.
All the elements were at hand for the creation of a common gov-
ernment of the federal type and all the conditions seemed to
favor it. Had there been no separation from England, it is not
likely that the colonists would have been induced to yield their
control over local affairs and hence the principle of federation
would have been injected into the British government. By
maintaining the right to conduct their own local affairs in their
own way, while conceding to the British government the exercise
of only such power over them as met with their approv^al, the
colonists were ui)holding the federal principle in government.
Before a Declaration of Jnclt-pendencc had l)ecn framed ; before
the meeting of the Philadelphia Convention of 17.S7 had been
called, the fcfleral form for state organization in America was a
foregone conclusion. In no other way could the demands for
.self-government be realized. Had England yielded to the wishes
of the colonists, federation would have taken place under
British authority, and such a feflcration would naturally have
included (Janada as well as the thirteen colonies. Then the
FEDERATION AND DEMOCRACY 691
course of history would have been different. No great state
would have stood forth as originally founded upon the prin-
ciple of federation. There would have been no Declaration of
Independence ; no Washington's Farewell Address ; no Monroe
Doctrine serving notice upon Europe to refrain from interference
with the republics of the New World ; no Lincoln's Gettysburg
speech. But democracy would nevertheless have found embodi-
ment with equal certainty in states securing to their citizens
control of local affairs.
The principle of federation fulfills certain permanent and
imperative needs of universal free government. First there is the
organized neighborhood which secures peace and harmony
among famihes and individuals and gives expression to com-
munity life. Among the ancient Greeks the organized neighbor-
hood comprised the entire state. In the United States and
Canada it includes town, city, and county. Among adjacent
communities conflicting interests arise and there is need of a
more general organization to maintain just relations between
counties and cities; and there are other industrial and social
needs common to all local communities which the separate
counties cannot supply. These are met by the State in the
United States and by the Province in Canada. Conflicting
interests also arise between adjacent States and Provinces, and
there are general governmental needs not met by the state
organizations. Hence the government of the United States
and of the Dominion of Canada to supplement those of State
and Province. In the case of Canada a government of still
higher authority is represented by the British Crown. These are
facts illustrating a common need. The greatest of the Anglo-
Saxon contributions to the free government of the world is found
in the diversity of forms presented for federated governments.
The United States, Canada, and Australia all present diflcrcnt
types of federation.! The United States, a highly elaborated
federated state, is the original model. The Canadian Constitu-
tion was framed at a time when the States of the American Union
were undergoing reconstruction after a disastrous civil war.
This is, no doubt, one cause for the highly centralized character
of the Dominion government. No Canadian Province can ever
' For a description of the federated self-governing Dominions of England and of
their relation to the Central Government see Chap. XLV.
692 COMPARATIVE FREE GOVERNMENT
claim a constitutional right to dissolve the Union. The Province
is allowed only such powers as are assigned to it by the Consti-
tution, all others belong to the central government. The
central government exercises a veto power over provincial legis-
lation, and the courts of the Dominion or the Privy Council in
England may nullify legislative acts of the Provinces. In many
ways the Provinces are restricted in their action, yet they have
been given b>' the constitution enough independent power to
insure a vigorous and active state life. They control local gov-
ernment and formulate their own constitutions. The same
people control both the Provinces and the Dominion govern-
ment, and, in general, they retain in the separate Provinces all
the powers they want.
The Australian Constitution was formulated under entirely
different conditions. Jealousy for State rights long prevented
the formation of the Commonwealth. In the organization of
the union the people of AustraHa reserved to their separate
States all powers not specifically conferred upon the government
of the Commonwealth. The States, in appearance at least,
retain a more important and independent position than do the
Canadian Provinces. Yet in Australia the central government is
endowed with a much wider range of powers than is the general
government of the United States. Of the three governments
compared Canada is most highly centralized, the United States
least centralized, while Australia holds an intermediate position.
An interesting fourth grade in the order of centralization is
presented by tlie recently formed Union of South Africa. Dutch
and English had long been at enmity and a war of conquest
ended in 1902. There was a mixed population in each of the
four colonies. Many considerations favored a strongly cen-
tralized government. The colonies, therefore, voluntarily
surrendered practically all of their independent powers and
consented to be governed locally by executive and legislative
councils of their own choosing with few powers assigned to
them by the Constitution and such additional powers as might
\)(i afterwarfls granted them by the government of the Union.
In legal form the South African Union is not a federated state.
It is rather a centralized state having highly developed local
autonomous provinces. In practice this may not differ greatly
from the Canadian type of federation.
FEDERATION AND DEMOCRACY 693
These illustrations exhibit the great adaptability of federal
forms to varying conditions. The South African provinces are
almost entirely dependent on the general government for the
powers they exercise. They are subject to the orders of the
government as an American county is subject to the state
government. The Union of South Africa, however, in its re-
lation to the central English government is almost independent.
Only in a very limited way does England maintain authority
over any of the dominion governments. There is, however,
enough of authority mutually recognized to suggest the federal
type of government. That is, with England as a central gov-
ernment and South Africa, Australia, Canada, and New Zealand
as subordinate states, a government of the federal type is
suggested, but in this case nearly all the real powers of govern-
ment are in the hands of the separate states.
The federal form of government has called into being a new
order of sentimental union, a new variety of patriotism. The
framers of the American Constitution of 1789 assumed that the
States would continue to hold the chief positions of honor, the
leading place in the affections of the people. National patriot-
ism was yet to be created. National patriotism does not in
itself detract from local and state pride and devotion. As one
values his local and community life, so ought one to value the
State which is guardian and promoter of that life. As one
appreciates the blessings of an authoritative state or provincial
body politic, so one ought to prize the more general body politic
which insures harmony and security among the States. To
the citizen trained to the full appreciation of the federal system
there is one all-inclusive object of patriotic devotion. Canadians
are intensely loyal to the British government on account of the
rich and satisfying community, Provincial, and Dominion Hfe
which such a relation insures to them. There are numerous stim-
uli to the one sentiment of devotion. The citizen of the parish
is made conscious of a vital share in the life of a great empire.
In the United States true federation was not attained until the
conflict between the devotion of Americans to their States and
to the general government had ceased. In a genuine federation
an appreciation of any one part includes an appreciation of all.
The new patriotism which the federal system promotes is
found able to make an end of the inveterate hatred and rivalry
694 COMPARATIVE FREE GOVERNMENT
arising from difference in race, language, and religion. English
and French had been traditional enemies for centuries. Be-
tween the two peoples there was actual or threatened war
when English statesmen induced the Canadians to begin the
formation of a federal union and assume the powers of local
self-government. Serious conflicts were thus brought to an
end; French Canadians became loyal British subjects; Eng-
lish Canadians became the willing followers of French Canadian
leaders. Sir Wilfred Laurier, a French CathoHc, was for many
years Prime Minister of the Dominion, and when a movement
arose for a closer compact among the different parts of the
British empire, the French Canadian statesman was accepted
as the most influential personal exponent of the sentiment of
imperial union. Another exemplification of the same principle
is found in the relations of Dutch and English in South Africa.
A vindictive war was followed immediately by friendly cooper-
ation between Dutch and English to found a great free self-
governing union. The Boers are becoming loyal to the British
government because for the first time in their history they feel
secure in the enjoyment of their local community life and at
the same time are made conscious of a share in extending the
principles of self-government to the ends of the earth.
The Anglo-Saxons by occupation and by political influence
have preempted the greater part of the New World and of
Australia for the federated form of free government and have
founded in South Africa a free Rci)ublic destined probably to
assume the same form.
Switzerland has become a federal state after many centuries
of continuous confederation between Cantons. The commune
is a primitive institution of the same order as the Saxon town,
or township. Communes became united into Cantons and
during the thirteenth century these began to unite for mutual
l)roleclion. Until the adoption of the Constitution of 1848
Switzerland was a Confederation, but by the adoption of the
Constitution it became a federal state. From force of habit
it is still cillcd a Confederation. Swiss history illustrates the
American order for the formation of union. Devotion to local
autonomy was determined and j)ersistent. Even the Catholic
Church in some Swiss communes took on a form of government
similar to that of the Puritan churches in the New England
FEDER.\TION AND DEMOCRACY 695
to\vns ; the Communes elected their own priests. Cantons
were formed by the union of communes, as American townships
united to form Counties. In Switzerland the Canton was the
sovereign state. They confederated, but they did not surrender
their sovereignty until a Swiss democracy had been developed
which could be relied upon to control the central government.
The federal governments thus far described present one general
line of development. In each case the people, having control
of local affairs and realizing the need of a government of wider
range and superior authority, call into existence agencies to
meet those needs.
In the German Empire a different order is observed ; there
the government emanates from the rulers instead of the people.
It is a government devised by kings and princes. But the
popular element does appear in the German Constitution of
187 1. Bismarck, having failed to induce the German princes
to accept the King of Prussia as their Emperor, appealed for
support to the people of Germany. He gave them an assembly
of their own choosing. In this way democracy became an
essential part of the federation.
A genuine federation involves the union of equal states ;
equal in their relations to one another and subject to equal
rights in their relations to the central government. The Ger-
man federation does not conform to this ideal. The constitu-
tion, however, furnishes evidence of an attempt to do so. The
monarchs who formed the union agreed to accept one of their
own number as President of the Empire, but refused to subject
themselves to the rule of an hereditary Emperor. They were
wiUing to accept the King of Prussia as their President and
were content to associate with the office of President the hon-
orary title of Kaiser, or Emperor. The German experience
illustrates the great difficulty of forming an authoritative govern-
ment over a group of absolute rulers. If they permit another
to exercise a part of the authority, they cease to be absolute.
The Constitution gave to the separate principalities many powers
and provided for the management of imperial affairs by delegates
appointed by the princes and subject to their instruction.
In appearance the Constitution did provide for a federation of
kings and princes on nearly equal terms. Had the actual
working Constitution conformed to the fictions of equality
696 COMPARATIVE FREE GOVERNMENT
injected into the frame of government, the union would have
been a rope of sand ; it would have failed as had previous efforts
to secure a united Germany. The success of the Union arises
from the fact that a single State had already conquered and
annexed the greater part of the German territory. It was
a matter of detail whether the remaining States would join by
agreement or by force. The form of federation is a mere inci-
dent in the creation of an Empire governed by Prussia. The
actual government is in conflict with the federal principle of
equaUty between the States. Absolute or Constitutional
monarchies may form alliances or confederations, but the
experience of the Germans seems to prove that they may not
form an authoritative central government of the federal type.
Either there will ])c no government or the weak States will be
subordinated to the strong. Should the people of Prussia
gain control of their government and establish a parliamentary
monarchy, the way would be opened for a genuine federal gov-
ernment. The people of Prussia would unite with the people
of other States to control the central government. Authority
would pass to the Reichstag in which all the States arc pro-
portionately represented. The democracy would naturally seek
to extend to the small and weak States equal rights and privileges.
This has been the common experience. Rhode Island is as
secure in every local privilege as is New York or Texas.
The phenomenal extension of the federal forms of organization
during the j)ast century is a proi)hecy of greater triumphs for
the future. Statesmen and philosophers everywhere are
learning to think in terms of federation. Some of the thinking
fmds definite expression in such institutions as the Hague Con-
ferences, the Hague Tribunals, the Quinquennial meetings of
delegates from the rei)ul)lics of the New World, and numerous
other similar institutions. The actual institutions looking
towards a better understanding or a more perfect union among
the fiifferent states are outnum])cre(l by the various plans of
union pro[)osed for discussion. It is im[)ossil)le that any con-
siderable j)roportion of the j)lans should ever be realized ; yet
the general and rapidly increasing interest in the subject gives
reasonable grounds for the belief that the tried and approved
plans of federation now in use will be still farther extended and
that new and j)erchance belter methods will be discovered.
FEDERATION AND DEMOCBL\CY 697
The plan first evolved in the United States assumed the pre-
existence of a people accustomed to take care of themselves in
their own local institutions ; a people who stubbornly refused
to surrender local control to a central government. This con-
dition is found among comparatively few peoples and to nearly
all of these the plan of federation has already been extended.
Switzerland alone, apart from the British colonies, fulfills the
conditions. To farther extend the Anglo-Saxon plan calls for
modifications. Americans are training Filipinos for self-
government by creating habits of control over local institutions.
Something in the same line is being done in India and in other
British possessions. This is an important modification of the
original plan. Even with this modification the field for its
extension is limited. Rulers who are not themselves accustomed
to administer a government in which local autonomy prevails
will experience peculiar difficulty by beginning with the local
institutions. The French experience is an illustration in point.
The Revolutionary statesmen had the idea; they proposed to
evolve a free state out of local communes and Cantons, but
the plan would not work. More than a hundred years have
intervened and the goal is apparently as remote as at the be-
ginning. The ideal still survives, but the method of approach
has been completely reversed. Instead of the commune the
department or some provincial area yet to be formed holds the
place of chief interest. The central government will unload
some of its burdens upon the provinces and these in turn will
cultivate the local democracy. The order of development is
from the higher authority to the lower, rather than from the
lower to the higher. It is not hkely that a system developed in
the reverse order will have the same characteristics as the
American and Swiss federations. It may have no characteristics
which answer to the accepted definition of a federal state;
but by federation or by some other agency the local needs will
be met.
Important as is the principle of federation in respect to the
domestic relations of the people in the great states, it is even
more important in its relations to the needs of a world democracy.
It is difficult to imagine any agency for giving expression to
the sense of justice common to all civilized peoples which does
not involve a common agreement of equal states. The United
698 COMPAR.\TIVE FREE GOVERNMENT
States of Europe, the United States of North and South
America, or the United States of the World involve no new
principles, but merely an extension of principles now in full
operation. The consciousness of common European needs first
found expression in international law, and the fulfillment of
international law leads logically to some form of federation.
The consciousness of the common needs of the republics of the
New World gave rise, first, to the Monroe Doctrine, to be
followed by forms of closer and more effective union.
A distinct world consciousness with a lively sense of com-
mon needs is of very recent origin, and its natural fulfillment
is " The federation of Man."
REFERENCES
See Chap. XLV.
Bryce. The American Commonwealth, 191 1, Chaps. XXVII-XXX.
Dicey. The Laic of the Constitution, Chap. IV.
BOOK LIST
I
BOOK LIST
THE UNITED STATES
Gekeral Go\'ern"mzkt ANT) Politics
Ashley, Roscoe Lewis. The .\inerican Federal State. Re\ised Edition,
New York, 191 1.
Bacon, Edwix M., and Wymax, Morrill. Direct Elections and Law-
Making bj- Popxilar Vote. Boston, 191 2.
Bald\a'in, Simeon E. The American Judician,-. (American State Series.)
New York, 1905.
Beard, Charles A. American Government and Politics. New and
Re\-ised Edition, New York, 19 14..
An Economic Interpretation of the Constitution of the United
States. New York, 19 13.
Readings in American Government and Politics. New and
Revised Edition, New York, 19 14.
The Supreme Court and the Constitution. New York, 191 2.
Bishop, Joseph Buckxin. Our Political Drama : Conventions, Campaigns,
Candidates. New York, 1904.
Brooks, Robert C. Corruption in American Politics and Life. New
York, 19 10.
Bryce, James. The American Commonwealth. Two vols. New and
Revised Edition, New York, 1910.
Clevel-And, Frederick \. The Growth of Democracy in the United
States. Chicago, 1898.
Organized Democracy. (American Citizen Series.) New
York, 1913.
Commons, John R. Proportional Representation. Second Edition, New
York, 1907.
The Congressional Directory.
Cooke, Frederick H. The Commerce Clause of the Federal Constitution.
New York, 1908.
CooLEY, Thomas M. The General Principles of Constitutional Law in the
United States. Third Edition, Revised by A. C. Angell, Boston,
1898.
A Treatise on Constitutional Limitations. Seventh Edition,
Boston, 1903.
CoRWiN, Edward S. The Doctrine of Judicial Review. Princeton, 1914.
Croly, Herbert. Progressive Democracy. New York, 1014.
The Promise of .\merican Life. New York, 1909.
701
702 COMPARATRE FREE GOVERNMENT
Dallin'ger, Frederick W. Nominations for Elective Office in the United
States. (Harvard Historical Studies.) Cambridge, 1914.
Davis, Horace A. The Judicial Veto. Boston, 1914.
Dougherty, J. Hampden. The Electoral Sj'stem of the United States.
New York, 1906.
Fairlie, John A. The National Administration of the United States of
America. New York, 1905.
Farrand, Max. The Records of the Federal Convention of 1787. Three
vols. New Haven, 1911.
The Federalist.
FiNLEV, John H., and Sanderson, John F. The American Executive and
Executive Methods. (American State Series.) New York, 1908.
Fish, Carl Russell. The Civil Service and the Patronage. (Harvard
Historical Studies.) New York, 1905.
Fisher, Sydney George. Evolution of the Constitution of the United
States. Philadelphia, 1909.
FoLLETT, M. P. The Speaker of the House of Representatives. New York,
1909.
Ford, Henry Jones*. The Cost of Our National Government. New York,
1910.
The Rise and Growth of American Politics. New York, 1900.
Freund, Ernst. The Police Power. Chicago, 1904.
Fuller, Hubert Bruce. The Speakers of the House. Boston, 1909.
Goodnow, Frank J. Politics and Administration. New York, 1900.
The Principles of the Administrative Law of the United States.
New York, 1905.
Social Reform and the Constitution. (American Social Progress
Scries.) New York, 1911.
Griffith, Elmer C. The Rise and Development of the Gerrymander.
Chicago, 1907.
Haines, Charles Grove. The American Doctrine of Judicial Supremacy.
New York, 1914.
Harrison, Benjamin. This Country of Ours. New York, 1897.
Hart, ,'\lbert Bushnell. Actual Government as Applied under American
Conditions. (American Citizen Series.) Third Edition, New York,
1908.
Practical Essays on American Government. New York, 1904.
Havnf.s, George H. The Election of Senators. New York, 1906.
Hinsdale, Mary L. .\ History of the President's Cabinet. (Historical
Studies, Vol. I.) .'\nn Arbor, Mich., igti.
The House Manual.
Johnson, Allen. Readings in .American Constitulioiial History. Boston,
1912.
Jones, Chester Lloyd. Readings on Parlies and Elections in the United
States. New York, 191 2.
JUDSON, Fredkhtck N. The Judidary and t!ic People. New Haven,
The Law of Interstate Commerce and its Federal Regulation.
Second Edition, Chicago, 191 2.
BOOK LIST 703
Treatise on the Power of Taxation, State and Federal, in the
United States. St. Louis, 1903.
Kales, Albert M. Unpopular Government in the United States.
Chicago, 1914.
Learned, Henry B.\rrett. The President's Cabinet. New Haven, 191 2.
Lodge, Henry Cabot. The Democracy of the Constitution. New York,
1915-
Lowell, A. Lawrence. Public Opinion and Popular Government. (Amer-
ican Citizen Series.) New York, 1913.
McCall, Samuel W. The Business of Congress. New York, 191 1.
McClain, Emlin. Constitutional Law in the United States. (American
Citizen Series.) Second Edition, New York, 1910.
McConachie, Lauros G, Congressional Committees. (Library of
Economics and Politics.) New York, 1898.
McGehee, Lucius P. Due Process of Law under the Federal Constitu-
tion. New York, 1906.
McLaughlin, Andrew C. The Courts, the Constitution, and Parties.
Chicago, 191 2.
McLaughlin, Andrew C, and Hart, Albert Bushnell. Cyclopedia of
American Government. Three vols. New York, 1914.
Macy, Jesse. Party Organization and Machinery. (American State
Series.) Revised Edition, New York, 191 2.
Political Parties in the United States, 1 846-1 861. (Citizen's
Library.) New York, 1900.
Mason, Edward Campbell. The Veto Power. (Harvard Historical
Monographs, No. i.) Boston, 1890.
Merriam, C. Edward. A History of American Political Theories. New
York, 1913.
Meyer, Ernst Christopher. Nominating Systems: Direct Primaries
versus Conventions in the United States. Madison, Wis., 1902.
OsTROGORSKi, M. Democracy and the Organization of Political Parties.
Two vols. Vol. I devoted to parties in England, and Vol. H to parties
in the United States. New York, 1902.
Democracy and the Party System in the United States. New
York, 1910.
Pierce, Franklin. Federal Usurpation. New York, 1908.
PoMEROY, John Norton. An Introduction to the Constitutional Law of
the United States. Tenth Edition, Boston, 1888.
Ray, p. Orman. An Introduction to Political Parties and Practical Politics.
New York, 1913.
Reinsch, Paul S. Readings on American Federal Government. Boston,
1909.
The Senate Manual.
Sloane, William Milligan. Party Government in the United States of
America. New York, 1914.
Smith, J. Allen. The Spirit of .Xmcrican Government. (Citizen's Li-
brary.) New York, 1907.
Stanwood, Edward. A History of the Presidency from 1788 to 1897.
Boston, 1898.
704 COMPARATI\'E FREE GOVERNMENT
A Histoty of the Presidency from 1897 to 1909. Boston, 191 2.
Stimson, Frkderic Jesup. The American Constitution. New York, 1908.
The Law of the Federal and State Constitutions of the United
States. Boston, 1908.
Story, Joseph. Commentaries on the Constitution of the United States.
Two vols. Fifth Edition, Edited by M. M. Bigelow, Boston, 1891.
Thorpe, Francis Newton. Federal and State Constitutions. Seven vols.
Washington, 1909.
T1EDEM.A.N, Christopher Gustavus. The Unwritten Constitution of the
United States. New York, 1890.
TocQtTEViLLE, Alexis de. Democracy in America. Two vols. Paris,
1835-1840. Translation by Henry Reeve. New York, 1898.
Van Dyne, Frederick. Citizenship of the United States. Rochester, 1903.
A Treatise on the Law of Naturalization of the United States.
Rochester, 1907.
Weyl, Walter E. The New Democracy. New York, 1914.
Wilcox, Delos F. Government by all the People : The Initiative, The
Referendum and The Recall as Instruments of Democracy. New York,
1912.
WiLLOUGHBY, Westel Woodbury. The American Constitutional System.
(American State Series.) New York, 1904.
The Constitutional Law of the United States. Two vols. New
York, 1910.
Wilson, Woodrow. Congressional Government : A Study in American
Politics. Boston, 1904.
Constitutional Government in the United States. New York,
1908.
WooDBURN, James Albert. The American Republic and its Government.
New York, 1908.
Political Parties and Party Problems in the United States.
Second Edition, New York, 1914.
Young, James T. The New American Government and its Work. New
York, 1915.
State and Local
Annals of the .\mcrican .Academy of Political and Social Science: July,
1910, Administration of Justice in the United States; September,
1Q12, The Initiative, Referendum and Recall; May, 1913. County
Government; March, 1914. Reform in the Administration of Justice.
Bkari), CiiARi.KS A., and Schultz, Birl E. Documents on the State-wide
Initiative, Referendum and Recall. New York, 191 2.
Braokokd, Ernest S. Commission Government in American Cities.
(Citizen's Library.) New York, 191 1.
Dealev, James Quayle. Growth of .American State Constitutions.
Boston, 1915.
Our State Constitutions. i'liila(iel|)]iia, .\nnals Sujiplement,
March, 1907.
Demin<;, Horace E. The Government of American Cities. New York,
1909.
BOOK LIST 705
DoDD, Walter Fairleigh. The Revision and Amendment of State
Constitutions. (Johns Hopkins University Studies.) Baltimore, 1910.
F.A.IRLIE, John A. Local Government in Counties, Towns and Villages.
(American State Series.) New York, 1906.
GooDNOW, Fr.\nk J. City Government in the United States. (American
State Series.) New York, 1904.
Howe, Frederic C. Wisconsin, An Experiment in Democracy. New
York, 191 2.
Jones, Chester Lloyd. Statute Law Making in the United States.
Boston, 1912.
Kansas Legislative Reference Deparlment. Bulletin No. i, Legislative Sys-
tems. Topeka, 1914.
McCarthy, Charles. The Wisconsin Idea. New York, 1912.
Manual or Legislative Handbook of Each State.
Merriam, C. Edward. Primary Elections. Chicago, 1908.
MuNRO, William Bennett. The Government of American Cities. New
York, 191 2.
The Initiative, Referendum and Recall. (National Municipal
League Series.) New York, 1912.
Oberholtzer, Ellis Paxson. The Referendum in America. New Edi-
tion, New York, 1911.
Reinsch, Paul S. American Legislatures and Legislative Methods. New
York, 1907.
Readings on American State Government. Boston, 191 1.
Sheldon, A. E., and Keegan, M. Legislative Procedure in the Forty-
Eight States. (Nebraska Legislative Reference Bureau, Bulletin No.
3.) Lincoln, 1914.
Wilcox, Delos F. Great Cities in America. (Citizen's Library.) New
York, 1910.
ENGLAND
Government and Politics
Acland, a. H. D., and Ransome, C. Handbook of the Political History
of England to 1913. New Edition, New York, 1913.
Adams, G. B., and Stephens, H. M. Select Documents of English Con-
stitutional History. New York, London, 1901.
Anson, Sir William R. The Law and Custom of the Constitution.
Fourth Edition, Revised, Oxford, 1911.
Atlay, James Beresford. Victorian Chancellors. Two vols. Boston,
1906-1908.
Bagehot, Walter. The English Constitution. Revised Edition, New
York, 1904.
Blau\'elt, Mary Taylor. The Development of Cabinet Government in
England. New York, 1902.
BouTMY, Emile. The English People: .\ Study of Their Political Psy-
chology. Translated from the French by E. English. London,
1904.
7o6 COMPAR.\TIVE FREE GOVERNMENT
Studies in Constitutional Law. Translated from the Second
French Edition by E. M. Dicey. London, 1891.
Carter, A. T. History of English Legal Institutions. Fourth Edition,
London, 19 10.
Churchill, Winston Spencer. Life of Lord Randolph Churchill. Two
vols. New York, 1906.
Constitutional Year Books. London.
Courtney, Leonard Henry. The Working Constitution of the United
Kingdom. New York, 1910.
Dicey, Albert Venn. Introduction to the Study of the Law of the Con-
stitution. Eighth Edition, New York, 1915.
The Privy Council. Arnold Prize Essay, i860. London, 1887.
Dickinson, G. Lowes. Development of Parliament During the Nineteenth
Century. London, 1895.
Freeman, Edward A. The Growth of the English Constitution. Fourth
Edition, London, 1884.
History of the Norman Conquest of England. Si.x vols. New
York, 1873.
Gardiner, Samuel R. History of England 1 603-1 642. Ten vols. New
York, 1883-84.
History of the Commonwealth and Protectorate. Four vols.
London, 1903.
Gneist, Rudolph. The English Parliament in its Transformations through
a Thousand Years. Translated by R. J. Shee. Boston, 1886.
History of the English Constitution. Translated by P. A.
Ashworth. Two vols. New Edition, New York, 1910.
Green, John Richard. History of the English People. Four vols. New
Edition, New York, 1904.
Short Histor>' of the English People. New York, 1902.
Harris, W. History of the Radical Party in Parliament. 1885.
Hearn, William Edward. The Government of England. Second Edi-
tion, London, New York, 1886.
Hunt, William, and Poole, L. R., Editors. Political History of Eng-
land. 1 2 vols. London. Each volume a dififcrent date.
Ilbert, Sir Courtenay. Legislative Methods and Forms. Oxford, 1901.
The Mechanics of Law Making. New York, 1914.
Parliament ; Its History, Constitution and Practice. (Home
University Library.) New York, 1911.
Jenks, Edward. Parliamentary England. The Evolution of the Cal)inct
System. (Story of the Nations.) New York, 1903.
Kehukl, TntJMAS Edward. History of Toryism, 1886.
Kr.MHi.K, John MirfiHKLL. Saxons in I'",nglanfl. Two vols. New York.
King, Joseph, and Rafpi.ty, F. W. Our Electoral System : The Demand
for Reform. London, 191 2.
Lee, Sir Sidney. Queen Victoria, A Biograi)hy. Second Fdition, London,
1903.
Liberal Year Books. London.
Low, Sidney. The Governance of I^iigland. New Edition, New York,
1914.
BOOK LIST 707
Lowell, A. Lawrence. The Government of England. Two vols. New
Edition, New York, 191 2.
MacDonagh, Michael. The Book of Parliament. New York, 1897.
McIlwain, Charles Howard. The High Court of Parliament and its
Supremacy. New Haven, 1910.
Macy, Jesse. The English Constitution. New Edition, New York, 1904.
Marriott, J. A. R. English Political Institutions. Second Edition,
Oxford, 19 1 3.
May, Thomas Erskine. Constitutional History of England. Two vols.
London, 1861-1863. Three vols., Vol. Ill by Francis Holland. New
York, 191 2.
Treatise on the Law, Privileges, Proceedings, and Usage of
Parliament. Three vols. New Edition, London, 191 2.
Medley, Dudley Julius. English Constitutional History. Oxford, 1894.
MoRAN, Thomas Franxts. Theory and Practice of the English Govern-
ment. New Edition, New York, 1908.
MoRLEY, John. Life of William Ewart Gladstone. Two vols. New
Edition, New York, 191 1.
OsTROGORSKi, M. Democracy and the Organization of Political Parties.
Two vols.. Vol. I devoted to parties in England, and Vol. II to parties
in the United States. New York, 1902.
Pike, Luke Owen. Constitutional History of the House of Lords. New
York, 1894.
Pollock, Sir Frederick, and Maitland, Frederic William. History of
English Law before the Time of Edward I. Two vols. Second Edi-
tion, Boston, 1899.
Poole, Reginald L. The Exchequer in the Twelfth Century. Oxford,
1912.
PoRRiTT, Edward, and Porritt, Mrs. ANN^E G. The Unreformed House
of Commons. Two vols. New York, 1903.
Powell, Ellis Thomas. The Essentials of Self-Government. (England
and Wales.) New York, London, 1909.
Redlich, Josef. The Procedure of the House of Commons. Translated
by A. E. Steinthal. Three vols. New York, 1910.
Rosebery, ARcraBALD. Life of Lord Randolph Churchill. New York,
1906.
Smith, G. Barnett. History of the English Parliament. 1892.
Stubbs, William. The Constitutional History of England. Three vols.
Second Edition, O.xford, 1875.
Taswell-Longmead, Thomas Pitt. English Constitutional History.
Seventh Edition, Revised, New York, 191 2.
Temple, Rt. Hon. Sir Richard. The House of Commons. London,
1899.
Life in Parliament. London, 1893.
Todd, Alpheus. On Parliamentary Government in England. Two vols.
Second Edition, London, 1889.
Practice and Privileges of the Two Houses of Parliament.
Trevelyan, G. M. England in the Age of Wycliffe. New Edition, New
York, London, 1909.
7o8 COMPARATIVE FREE GOVERNMENT
England under the Stuarts. New York, 1905.
Wakemax, Henry O. History of the Church of England. 1908.
Walpole, Sir Spenx'ER. The Electorate and the Legislature. (English
Citizen Series.) London, 1892.
History of England from the Conclusion of the Great War in
1815. Six vols. London, 191 1.
Watson, R. Spence. The National Liberal Federation from its Commence-
ment to the General Election of 1906. London, 1907.
White, William. The Inner Life of the House of Commons. Edited by
Justin McCarthy. Two vols. London, 1904.
Colonial Government and Politics
An Analysis of the System of Government Throughout the British Empire.
London, 191 2.
Bourinot, Sir John George. Manual of the Constitutional History of
Canada. Montreal, 1888.
Br.'^dley, A. G. Canada. (Home University Library.) New York, 191 2.
Bradshaw, F. Self-Government in Canada and How It Was Achieved.
London, 1903.
Clement, W. H. P. The Law of the Canadian Constitution. Second
Edition, Toronto, 1904.
Denison, George T. The Struggle for Imperial Unity. New York, 1909.
Dilke, Sir Charles Wentworth. Problems of Greater Britain. Fourth
Edition, London, 1890.
Douglas, Sir Arthur. Dominion of New Zealand. Boston, 1909.
Egerton, Hugh I-^dward. Federations and Unions within the British
Empire. Oxford, 19 11.
Egerton, Hugh Edward, and Grant, W. L. Canadian Constitutional
Development. London, 1908.
Jebb, Richard. Studies in Colonial Nationalism. New York, London,
1905-
Ki.iTM, Arthur Berriedale. Responsible Government in the Dominions.
Three vols. O.xford, 191 2.
Lekrov, a. H. F. Canada's Federal System. Toronto, 19 13.
Li; Rossignol, James ICdward, and Stewart, William Downie. State
Socialism in New Zealand. (f>il)rary of Economics and Politics.) New
York, 1910.
Lloyd, Henry Demarest. Newest England. Notes of a Democratic
Traveller in New Zealand, with some Australian Comparisons. Re-
vised Edition, New York, 1904.
Lucas, Sir Charles Prestwood. Historical Geography of the British
Colonics. Si.x vols. New Edition, O.xford, i()i4.
— History of Canada. O.xford, 1909.
LusK, Hugh Hart. Social Welfare in New Zealand. New York, 1913.
MooRK, William Harrison. The New .Australian Commonwealth.
Philadelphia, 1903.
MUNROE, J. E. C. The Constitution of Canada. New York, iqoi.
Paksons, Frank. The Storv of New Zealand. Philadelphia, 11)04.
BOOK LIST 709
Payne, E. J. Colonies and Colonial Federation. (English Citizen Series.)
London, 1904.
ScHOLEFiELD, GuY H. New Zealand in Evolution ; Industrial, Economic,
and Political. New York, London, 1909.
Siegfried, Andre. Democracy in New Zealand. Translated by E. V.
Burns. New York, London, 1914.
Todd, Alpheus. Parliamentary Government in the British Colonies. New
York, 1909.
Turner, Henry Gyles. The First Decade of the Australian Common-
wealth. New York, Melbourne, 191 1.
Wise, B. R. The Commonwealth of Australia. Boston, 1910.
FRANCE
Block, M. L'Administration de la Ville de Paris et du Department de la
Seine. Paris, 1898.
BoDLEY, John E. C. France. New Edition, New York, 1900.
Brissaud, Jean. Historj' of French Public Law. Translated by J. W.
Garner. (Continental Legal History Series.) Boston, 1915.
Browne, Arthur S. French Law and Customs for the Anglo-Saxon.
Third Edition, London, 1914.
DuGUiT, Leon. Les Transformations du Droit Public. Paris, 1913.
Garner, James Wilford. The French Cabinet. American Political
Science Review. Vol. 8, p. 353. Aug., 1914.
Guerard, Albert Leon. French Civilization in the Nineteenth Century.
London, 1914.
GuYOT, Yves. The Relations between the French Senate and Chamber of
Deputies. Contemporary Review, Vol. 97, p. 142. Feb., 1910.
Hanotaux, Gabriel. Contemporary France. Translated by John
Charles Tarver. Four vols. New York, ^903-1909.
Jacques, Leon. Les Partis PoHtiques sous la III® Republique. Paris,
1913-
MoRGAUD, Leon. La Loi Municipale. Two vols. Seventh Edition, Paris,
1907.
Pierre, M. Eugene. Organization des Pouvoirs Publics. (Constitutional
and organic laws of the French Republic.) Paris, 1902.
PoiNCARE, Raymond. How France is Governed. Translated by Bernard
Miall. New York, 1914.
PoNDRA, and Pierre. Traits Pratique de Droit Parliamentaire. Eight
vols. Versailles, 1878-1880.
GERMANY
Binding, Karl. Die Rechtliche Stellung des Kaisers im Heutigen Deut-
schen Reiche. 1898.
Bismarck, Otto von. The Man and the Statesman. Translated under
the supervision of A. J. Butler. Two vols. New York, 1899.
Bryce, James. The Holy Roman Empire. New Edition, New York,
1904.
7IO COMPARATIVE FREE GOVERXIMENT
VON BuLOW, Bernhard. Imperial Germany. Translated by Marie A.
Lewenz. New York, 1914.
Combes de Lestrade, Gaetan. Les Monarchies de I'Empire Allemand,
Paris, 1904.
Dawson, William Harbutt. Municipal Life and Government in Germany.
New York, 19 14.
He.adlam, J.AMES W. Bismarck and the Foundation of the German Empire.
New York, 1899.
Howard, Burt Estes. The German Empire. New York, 1906.
James, Herman Gerlach. Principles of Prussian Administration. New
York, 1913.
Laband, Paul. Das Staatsrecht des Deutschen Reiches. Fifth Edition,
Tubingen, 1913. French Edition, four vols., Paris, 1900-1904.
Mayer, Otto. Deutsches Verwaltungsrecht. Two vols. 1914.
Meyer, George. Das Parlamentarische Wahlrecht. Edited by von
Jellinck. Berlin, 1901.
Lehrbuch des Deutschen Verwaltungsrechtes. Fourth Edi-
tion, Leipzig, 1914.
Schierbrand, Wolf von. Germany, The Welding of a World Power.
New York, 1904.
Seydel, Max von. Commentar zum Verfassungsurkunde fiir das Deutsche
Reich. Second Edition, Freiburg, 1897.
Stillich, Oscar. Die Politische Parteien in Deutschland. Two vols.
Leipzig, 1908-1911.
Tower, Charles. Germany of To-day. (Home University Library.)
New York, 1913.
ZoRN, Phillipp. Das Staatsrecht des Deutschen Reiches. Two vols.
Second Edition, Berlin, 1895-1897.
SWITZERLAND
Adams, F. O., and Cunningham, C. D. The Swiss Confederation. London,
1894.
Dandliker, Karl. A Short History of Switzerland. Translated by E.
Salisbury. New York, London, 1899.
Deploige, Simon. The Referendum in Switzerland. New York.
Llontj, Henry Demarkst. A Sovereign People: .\ Study of Swiss Democ-
racy. New York, 1907.
McCracken, W. D. The Rise of the Swiss Republic. Second Edition, New
York, 1901.
Romance; Switzerland. (Jeneva, Basle, 1895.
Teutonic Switzerland. Cieneva, Basle, 1895.
Moses, Bernard. The Federal Government of Switzerland. Oakland,
1889.
RiniMAN, Trving B. Ap|)cnzell; Pure Democracy and Pastoral Life in
Inncr-Khoden. i^ondon, 1805.
Vincent, John Martin, (iovernment in Switzerland. New York, 1900.
Winchester, Boyd. The Swiss Republic. Philadeli)hia, 1891.
BOOK LIST 711
SOUTH AMERICA
Akers, Charles Edmond. History of South America, 1854-1904. New
Edition, New York, 191 2.
Bingham, Hiram. Across South America. Boston, 191 1.
Bryce, James. South America; Observations and Impressions. New
Edition, New York, 1914.
Buckman, Williamson. Under the Southern Cross in South America.
New York, 1914.
Bulletin of the Pan American Union. Washington, D.C.
Carpenter, Frank G. South America. Akron, Ohio, 1900.
Clemenceau, Georges. South America To-day. New York, 191 1.
Currier, Charles W. Lands of the Southern Cross. Washington, D.C,
1911.
Dalton, Leonard V. Venezuela. (South American Series.) London,
1912.
Dawson, Thomas C. South American Republics. Two vols. (Story
of the Nations.) New York, 1903.
Denis, Pierre. Brazil. Translated by Bernard Miall. (South American
Series.) London, 19 11.
DoM\7LLE-FiFE, Charles W. Great States of South America. New
York, 1910.
The United States of Brazil. New York, 1911.
Elliot, G. F. Scott. Chile. London, 19 n.
Enock, C. Reginald. The Republics of Central and South America.
(South American Series.) New York, London, 1913.
Eraser, John Foster. The Amazing Argentine. New York, 1914.
Garcia-Calderon, F. Latin America. Translated by Bernard Miall.
(South American Series.) New York, London, 1913.
Guinness, Geraldine. Peru : Its Story, People and Religion. New York,
London, 1909.
Hale, Albert. The South Americans. Indianapolis, 1907.
Handbooks of the various countries issued by the Pan-American Union.
Washington, D.C.
Hirst, William A. Argentina. (South American Series.) London, 1910.
KOEBEL, W. H. Modern Argentina. Boston, 191 2.
South America. (Making of the Nations Series.) New York,
London, 1913.
Latin America. George H. Blakeslee, Editor. (Clark Uni\-crsily Ad-
dresses, 1913.) New York, 1914.
Maitlan-d, Francis J. G. Chile: Its Land and People. London, 1914.
Mansfield, Robert E. Progressive Chile. New York, 1013.
Martin, Percy F. Peru of the Twentieth Century. London, 191 1.
Martinez, Alberto B. The Argentine Republic. Buenos Aires, 1910.
Martinez, .\lberto B., and Lewandowski, Maurice. The Argentine
in the Twentieth Century. Translated from the French of the Third
Revised Edition by Bernard Miall. New York, 191 5.
Paxson, Frederick L. The Independence of the South American Re-
publics. Philadelphia, 1903.
712 COMPARATIVE FREE GOVERNMENT
Pennington, A. Stuart. The Argentine Republic. New York, iqto.
Porter, Robert P. The Ten Republics. Chicago, 1913.
Reyes, Rafael. The Two Americas. Translated From the Spanish by
Leopold Grahame. New York, 1914.
RoscHER, Wilhelm. The Spanish Colonial System. Edited by E. G.
Bourne, New York, 1904.
Ross, Edward Alsworth. South of Panama. New York, 1915.
Shepherd, William R. Latin America. (Home University Library.)
New York, 1914.
South American Year Book.
Speer, Robert E. South American Problems. New York, 191 2.
Winter, Nevin O. Argentina and Her People of To-day. Boston, 1911.
Brazil and Her People of To-day. Boston, 1910.
COMPARATIVE WORKS
Alston, Leonard. Modern Constitutions in Outline. London, 1905.
Amos, Sheldon. Science of Politics. New York.
Ashley, Percy. Local and Central Government. A Comparative Study
of England, France, Prussia and the United States. New York, 1906.
Bluntschli, J. K. The Theory of the State. Translated from the Ger-
man. Third Edition, O.xford, 1901.
Borgeaud, Charles. Adoption and Amendment of Constitutions in
Europe and America. Translated by Charles D. Hazen. New York,
1909.
Bryce, James. Studies in History and Jurisprudence. Two vols. New
York, 1 90 1.
Burgess, John W. Political Science and Comparative Constitutional Law.
Two vols. Boston, 1891.
Cambridge Modern History. Edited by A. W. Ward, G. W. Prothero and
S. Leathes. Fourteen vols. New York, 1902-1912.
Crane, William W., and Moses, Bernard. Politics: .Vn Introduction
to the Study of Comparative Constitutional Law. New York, 1898.
Dickinson, Reginald. Summary of the Constitutions and Procedure of
Foreign Parliaments. Second Ixlition, 1890.
DoDD, Walter Fairleujh. Modern Constitutions. Two vols. Chicago,
1909.
iJiPRiEZ, Leon. Les Ministres dans les Principaux Pays d'Kuropc et
d'Amcrique. Two vols. Second Edition, 1892-1893.
Fisher, H. A. L. The Republican Tradition in Europe. New York, l>on-
don, 10 1 1.
Flaudin, Etien. Institutions I'oliticiue dc ri'.uropc (^ontemporaire.
Four vols. Paris, 1900-1900.
Garner, James Wilford. Inlrodiu tion to Politic ;il Science. New York,
1910.
Gettell, Raymond CJakfiei.d. Intrcxku tion to I'olitical Science. Bos-
ton, 1910.
GooUNOW, Frank J. Comi)aralivc Aiiministrative Law; An .Analysis
BOOK LIST 713
of the Administrative System, National and Local, of the United States,
England, France and Germany. New York, 1893.
Hammond, B. E. Outlines of Comparative Politics. 1903.
Holt, Lucius Hudson. An Introduction to the Study of Government.
New York, 1915.
Howe, Frederic C. European Cities at Work. New York, 1913.
Leacock, Stephen. Elements of Political Science. Boston, 1906.
Le Bon, Gustave. The Psychology of Peoples. New York, 191 2.
Lefevre-Pontalis, Antonin. Les Elections en Europe a la Fin du XIX®
Siecle. 1902.
Lowell, A. Lawrence. Governments and Parties in Continental Europe.
Two vols. Boston, 1896.
Marriott, J. A. R. Second Chambers. New York, 1910.
IMuNRO, William Bennett. The Government of European Cities. New
York, 1909.
Ogg, Frederic Austin. The Governments of Europe. New York,
1913-
Social Progress in Contemporary Europe. New York, 191 2.
OsBORN, J. L. Second Chambers at Home and Abroad. 1910.
PoLEY, Arthur Pierre. Federal Systems of the United States and the
British Empire. Boston, 1913.
Report of Royal Commissioners to Inquire into Electoral Systems. Blue
Book, London, 1910.
Sears, Edmund Hamilton. An Outline of Political Growth in the Nine-
teenth Century. New York, London, 1900.
Seignobos, Charles. A Political History of Contemporary Europe since
1814. Two vols. London, 1901.
Shaw, Albert. Municipal Government in Continental Europe. New
York, 1901.
Sidgwick, Henry. Development of European Polity. New York, 1903.
Statesman's Year Book. London.
Wenzel, John. Comparative View of the Executive and Legislative
Departments of the Governments of the United States, France, Eng-
land and Germany. Boston, 1891.
Wilson, Woodrow. The State. Revised Edition, Boston, 1911.
MISCELLANEOUS
Abbott, Lyman. The Rights of Man. A Study in Twentieth Century
Problems. Boston, 1902.
The Spirit of Democracy. Boston, iqio.
Aristotle's Politics. Translated by Benjamin Jowett. Two vols. 0.x-
ford, 1885.
Austin, John. Lectures on Jurisprudence, The Philosophy of Positive
Law. Abridged by Robert Campbell. New York, 1875.
BoNDY, William. Separation of Governmental Powers. (Columbia
University Studies in History, Economics, and Public Law, Vol. 5.)
New York, 1895.
714 COMPAI'LVTIVE FREE GOVERNMENT
Bradford, Gam-vuel. The Lesson of Popular Government. New York,
London, 1899.
Butler, Nicholas Murray. True and False Democracy. New York,
London, 1907.
Dole, Charles Fletcher. The Spirit of Democracy. New York, 1906.
Dunning, William Archibald. A History of Political Theories, Ancient
and Mediaeval. New York, London, 1902.
A History of Political Theories from Luther to Montesquieu.
New York, London, 1905.
Ely, Richard T. Property and Contract in their Relations to the Dis-
tribution of Wealth, New York, 1914.
GiDDiNGS, Franklin Henry. Democracy and Empire; With Studies of
Their Psychological, Economic, and Moral Foundations. New York,
1900.
GoDKiN, Edwin Lawrence. Unforeseen Tendencies of Democracy.
Boston, London, 1898.
GuY'OT, Yves. La Democratic Individualiste. Paris, 1907.
Hadley, Arthur Twining. The Relations between Freedom and Re-
sponsibility in the Evolution of Democratic Government. New York,
1903-
Hall, William Edward. A Treatise on International Law. Edition Six,
edited by J. B. Atlay. Oxford, 1910.
Hobhouse, Leonard T. Democracy and Reaction. New York, 1905.
Liberalism. (Home University Library.) New York, 1911.
Social Evolution and Political Theory. (Columbia University
Lectures, 1910-1911.) New York, 1911.
Hyslop, James H. Democracy; A Study of Government. New York,
1899.
Jellinek, Georg. The Declaration of the Rights of Man and of Citizens;
A Contribution to Modern Constitutional History. Translated by
Max Farrand. New York, 1901.
Recht des Modcrnen Staates.
Jenks, Jeremiah W. Governmental .Xction for Social Welfare. (.Ameri-
can Social Progress Series.) New York, 1910.
Kelly, 10d.\iund. Government; or, lluinan l-Aolution. 'I'wo vols. New
York, 1900.
Leckv, W. E. H. Democracy and l.il)crty. Two vols. New Edition,
New York, 1899.
Lerov, Maxime. [.a Loi; Essai sur l:i Tlieoric <li' I'Aulorite dans la
DC-mocratie. Paris, 1908.
.McKechnie, Wri.i.TA.M SnAki'. 'I'lie State and tin- Individual. Glasgow,
1896.
Maine, Sir Henry Sumni.k. Po|)iilar (iovcrnmenl; I'our Essays. New
York, 1886.
.Mill, Johm Stuart. Considrralions on Kiprescntative (iovernment.
New York, 187s.
On Lilurly. New York, 1882.
Oi'PKNHEiM, L. Intcrnulional Law, A Treatise. Two vols. New York,
•905-
BOOK LIST 715
Orth, Samuel P. Socialism and Democracy in Europe. New York, 1913.
Ritchie, David G. Principles of State Interference. Four Essays on the
Political Philosophy of Spencer, Mill, and Green. London, 1891.
Studies in Political and Social Ethics. New York, 1902.
RuBiNow, Isaac Max. Social Insurance. New York, 1913.
SoHM, Rudolph. Institutes of Roman Law. Translated by James Cran-
ford Ledlie. Third Edition, Oxford, 1901.
Spencer, Herbert. Social Statics and Man versus the State. New York,
1901.
Stickney, Albert. Organized Democracy. Boston, 1906.
Stimson, Frederic Jesup. Popular Law-Making. A Study of the Ori-
gin, History and Present Tendencies of Law-Making by Statute. New
York, 1911.
<f
CASES IN AMERICAN CONSTITU
TIONAL LAW
CASES IN AMERICAN CONSTITU-
TIONAL LAW
Supremacy of Federal Authority
Ableman v. Booth
21 Howard 506
1859
Calder v. Bull
3 Dallas 386
1798
Chisholm v. Georgia
2 Dallas 419
1793
Cohens v. Virginia
6 Wheaton 264
1821
Collector v. Day
II Wallace 113
1871
Debs, in re
158 U. S. 564
189s
Ex parte Siebold
100 U. S. 371
1880
Knox V. Lee
12 Wallace 457
1871
Lane County v. Oregon
7 Wallace 71
1869
McCulloch V. Maryland
4 Wheaton 316
1819
Martin v. Hunter's Lessee
I Wheaton 304
1816
Neagle, in re
135 U. S. I
1890
Osborn v. Bck^ 0/ /Ae United States
9 Wheaton 738
1824
South Carolina v. United States
199 U. S. 437
1905
Tennessee v. Z)ai>/5
100 U. S. 257
1880
Texaj V. White
7 W^allace 700
1869
United States v. Peters
5 Cranch 115
1809
United Slates v. Tarble (Tarble's Case)
13 Wallace 397
1872
Van Brocklin v. Tennessee
117 U. S. 151
1886
Veazie Bank v. Fenno
8 Wallace 533
1869
Di\7siON OF Powers between States and Nation
Barron v. Baltimore
7 Peters 243
1833
Chae Chan Ping v. United States (Chinese Exclusion
Case)
130 U. S. 581
1889
Cohens v. Virginia
6 Wheaton 264
1821
De Lima v. Bidicell
182 U. S. I
1901
Fairbatik v. United States
181 U. S. 283
1901
Fong Yue Ting v. United States
149 U. S. 698
1893
Gibbons v. Ogden
9 Wheaton i
1824
Giltnan v. Philadelphia
3 Wallace 713
1866
Houston V. Moore
5 Wheaton i
1820
Juilliard v. Grcenman (Leeal Tender Case)
110 U. S. 421
1884
Kansas v. Colorado
206 U. S. 46
1907
McCulloch V. Maryland
4 Wheaton 316
1819
719
720
COMPARATIVE FREE GOVERNMENT
Murray^s Lessee v. The Hobokcn Land &• Im-
provement Co.
Sturges V. Croicninshield
United States v. Fisher
United Stales v. J it Toy
18 Howard 272 1856
4 Wheaton 122 1819
2 Cranch 358 1804
198 U. S. 253 1905
Relation of States to One Another
Atlierton v. Atherton
181 U. S. 155
1901
Blake V. McClung
172 U. S. 239
1898
Bolln V. Nebraska
176 U. S. 83
1900
Escanaha or Lake Mich,
igan
Transportation Co. v.
Chicago
107 U. S. 678
1883
Kentucky v. Dcnnison
24 Howard 66
1861
Lascelles v. Georgia
148 U. S. 537
1893
McCready v. Virginia
94 U. S. 391
1877
Paul V. Virginia
8 Wallace 168
1869
Roberts v. Reilly
116 U. S. 80
1885
Virginia v. Tennessee
148 U. S. 503
1893
Ward V. Maryland
12 Wallace 418
1871
Wisconsin v. Pelican Insure
ncc Co.
127 U. S. 265
1888
Relations among Departments of Government
Georgia v. Stanton
6 Wallace 50
1867
Gordon V. United States
2 Wallace 561
1865
Kilbourn v. Thompson
103 U. S. 168
1881
Marbiiry v. Madison
I Cranch 137
1803
Michigan Central Railroad Co. v. Powers
201 U. S. 24s
1906
Mitchell V. Clark
no U. S. 633
1884
Public Clearing House v. Coyne
194 U. S. 497
1904
Sinking Fund Cases
99 U. S. 700
1879
United States v. Fcrreira
13 Howard 40
1851
Civil and Political
Rights
Barron v. Baltimore
7 Peters 243
1833
Civil Rights Cases
109 U. S. 3
1883
Dred Scott v. Sand ford
19 Howard 393
1857
Y.x parte Jackson
96 U. S. 727
1S78
V.\ parte Sicbold
100 U. S. 371
1880
Ex parte Yarbrough
no U. S. 651
1884
Ilurliuto V. California
iioU. S. 516
1884
Logan V. United States
144 U. R. 263
1892
Minor v. Uappcrselt
21 Wallace 162
187s
Pope V. Williams
193 U. S. 621
1904
Public Clearing House v. Coyne
194 U. S. 497
1904
Slaughter House Cases
t6 Wallace 36
1873
Straudcr v. West Virginia
100 U. S. 303
1880
CASES IN AMERICAN CONSTITUTIONAL LAW 72I
United States v. Tarhlc (Tarble's Case)
United States v. Wong Kim Ark
Ward V. Maryland
13 Wallace 397
169 U. S. 649
12 Wallace 418
1872
1898
1871
Constitutionality of Legislative Acts
Colder v. Bull
Fletcher v. Peck
Marbury v. Madison
Norton v. Shelby County
United States v. Peters
3 Dallas 386
6 Cranch 87
I Cranch 137
118 U. S. 425
5 Cranch 115
1798
1810
1803
1886
Jurisdiction of the Courts
Ableman v. Booth
Ames V. Kansas
Chishohn v. Georgia
Claflin V. Houseman
Cohens v. Virginia
Debs, in re
Ex parte McCardle
Foster v. Ncilson
Kiernan v. Portland
Marbury v. Madison
Martin v. Hunter's Lessee
Neagle, in re
Ohio &° Mississippi R. R. Co. v. Wheeler
Osborn v. Bank of the United States
South Dakota v. North Carolina
Tennessee v. Davis
The Moses Taylor
United States v. Texas
Taxation
Brown v. Maryland
Collector v. Day
Crandall v. Nevada
Davidson v. A'^CtC Orleans
Dooley v. United States
Hagar v. Reclamation District
Hylton V. United States
Knou'lton v. Moore
License Tax Cases
Loan Association v. Topeka
McCray v. United States
McCulloch V. Maryland
Pollock V. Farmers' Loan b" Trust Co. (Income Tax
Case)
3A
21 Howard 506
1859
III U. S. 449
1884
2 Dallas 419
1793
93 U. S. 130
1876
6 Wheaton 264
1821
158 U. S. 564
1895
7 Wallace 506
1869
2 Peters 253
1829
223 U. S. 151
1912
I Cranch 137
1803
I Wheaton 304
1816
135 u. S. I
1890
I Black 286
1862
9 Wheaton 738-
1824
192 U. S. 286
1904
100 U. S. 257
1880
4 Wallace 41 1
1867
143 U. S. 621
1892
12 Wheaton 419
1827
II Wallace 113
1871
6 Wallace 35
1868
96 U. S. 97
1878
183 U. S. 151
1901
III U. S. 701
1884
3 Dallas 171
1796
178 U. S. 41
1900
5 Wallace 462
1867
20 Wallace 655
1875
195U. S. 27
1904
4 Wheaton 316
1819
157 U. S. 429
1895
158 U. S. 601
1895
722
COMPARATIVE FREE GOVERNMENT
Springer v. United Slates
State Tonnage Tax Cases
Veazie Bank v. Fenno
I02 U. S. 586
12 Wallace 204
8 Wallace 533
1871
1869
FiNANaAL Powers Other than Taxation
Briscoe v. Batik of Kentucky
Craig V. State of Missouri
Hepburn v. Griswold
Juilliard v. Grcenman
Lane County v. Oregon
Legal Tender Cases
II Peters 257
1837
4 Peters 410
1830
8 Wallace 603
1870
no U. S. 421
1884
7 Wallace 71
1869
12 Wallace 457
1871
326
343
Interstate and Foreign Commerce
Athanasaw v. United States 227 U. S.
Austin V. Tennessee 179 U. S.
Baltimore &" Ohio Railway Co. v. Interstate Com-
merce Commission 221 U. S. 612
Bowman v. Chicago 6* N. IV. Raihcay Co. 125 U. S. 465
Brown v. Maryland 12 Wheaton 419
Champion v. Ames (The Lottery Case) 188 U. S. 321
Cooky V. Board of Wardens 12 Howard 299
Debs, in re 158 U. S. 564
Geer v. Connecticut 161 U. S. 519
Gibbons v. Ogdcn 9 Wheaton i
Gompers v. Buck's Stove b" Range Co. 221 U. S. 418
Gompers v. United States 233 U. S. 604
Henderson v. Mayor of New York 92 U. S. 259
Hoke V. United Slates 227 U. S. 308
Houston b" Tex. Central R.R. Co. v. Mayes 201 U. S. 321
Houston, E. (s" W. Texas Railway Co. v. United
Stales (Shreveport Case) 234 U. S. 342
Howard v. Illinois Central Railway Co. 207 U. S. 463
Kansas v. Colorado 206 U. S. 46
Leisy v. Hardin 135 U. S. 100
License Cases 5 Howard 504
I^ewe V. Lawler fDanhurj' Hatters' Case) 208 U. S. 274
Minnesota v. Barber 136 U. S. 313
Northern .Securities Co. v. United States 193 U. S. 197
Passenger Cases 7 Howard 283
Paul V. Virginia 8 Wallace 168
Pensacola Telegraph Co. v. Western Union Tele-
graph Co. 96 U. S. 1
Plumlry v. Massachusetts 155 U. S. 461
Postal Telegraph Cable Co. v. Adams 155 U. S. 688
Rahrer, in re 140 U. S. 545
Simpson v. Shepard (Minnesota Rate Case) 230 U. S. 352
Smyth V. Ames 169 U. S. 466
1913
1900
1911
1888
1827
1903
1851
189s
1896
1824
1911
1914
1876
1913
1906
1914
1908
1907
1890
1847
1908
1890
1904
1849
1869
1878
1894
1895
1891
1913
CASES IN AMERICAxN CONSTITUTIONAL LAW 723
Standard Oil Co. v. United States 221 U. S. i
The Daniel Ball 10 Wallace 557
United States v. American Tobacco Co. 221 U. S. 106
United States v. E. C. Knight Co. 156 U. S. i
United Stales v. Ohio Oil Co., et al. 234 U. S. 548
Vance v. Vandcrcook 170 U. S. 438
Wabash, St. L. & Pacific Railway Co. v. Illinois 118 U. S. 557
Ward V. Maryland 12 Wallace 418
Welton V. Missouri 91 U. S. 275
Western Union Telegraph Co. v. Kansas 216 U. S. i
1911
1871
1911
189s
1914
1871
1876
1910
Due Process and Equal Protection of the Law
Allgeyer v. Louisiana 165 U. S. 578
Barbier v. Connolly 113 U. S. 27
Debs, in re 158 U. S
Hagar v. Reclamation District iii U. S
Hurtado v. California no U. S
McKane v. Durston 153 U. S
Missouri v. Lewis loi U. S
Missouri Pacific Railway Co. v. Nebraska 164 U. S
Murray's Lessee v. The Hoboken Land b" Im-
provement Co. 18 Howard 272
Pembina Silver Mining Co. v. Pennsylvania 125 U. S. 181
Plessy V. Ferguson 163 U. S. 537
Smyth V. Ames 169 U. S. 466
Strauder v. West Virginia . 100 U. S. 303
Twining v. Neiv Jersey 211 U. S. 78
YickWow Hopkins 118 U. S. 356
564
701
516
684
22
403
897
885
89s
884
884
894
880
896
856
888
896
898
880
908
Obligation of Contracts
American Smelting &• Refining Co. V.Colorado 204 U. S. 103 1907
Charles River Bridge Co. v. The Warren Bridge Co. 1 1 Peters 420 1837
Fletcher v. Peck 6 Cranch 87 1810
Gelpcke V. Dubuque i Wallace 175 1864
Lehigh Water Co. v. Easton "121 U. S. 388 1887
Long Island Water Supply Co. v. Brooklyn 166 U. S. 685 1897
New Jersey v. Wilson 7 Cranch 164 1812
Norlhiveslern Fertilizing Co. v. Hyde Park 97 U. S. 659 1878
Ogden V. Saunders 12 Wheaton 213 1827
Trustees of Dartmouth College v. Woodward 4 Wheaton 518 18 19
Police Power
Bacon v. Walker
Booth V. Illinois
Bosley v. McLaughlin
Champion v. .4 mcs (The Lottery Case)
204 U. S. 311
184 U. S. 425
236 U. S. 385
188 U. S. 321
1907
1902
19 1 5
1903
724
COMPAR,\TIVE FREE GOVERNMENT
Chicago, Burlington ^ Quincy Railway Co. v.
McGuirc
219 U. S. 549
1911
Denl V. West Virginia
129 U. S. 114
1889
Escanaba d* Lake Michigan Transportation Co. v.
Chicago
107 U. S. 678
1883
Hennington v. Georgia
163 U. S. 299
1896
Hoke V. United States
227 U. S. 308
1913
Holden v. Hardy
169 U. S. 366
1898
License Cases
5 Howard 504
1847
Miller v. Wilson
236 U. S. 373
191S
Mngler v. Kansas
123 U. S. 623
1887
Midler v. Oregon
208 U. S. 412
1908
Miinn V. Illinois
94 U. S. 113
1877
Mutual Film Corporation v. Industrial Commission
of Ohio
236 U. S. 230, 247
1915
Noble State Bank v. Haskell
21911.5.104,575
1911
Northwestern Fertilizing Co. v. Hyde Park
97 U. S. 659
1878
Plessy V. Ferguson
163 U. S. 537
1896
Slaughter House Cases
16 Wallace 36
1873
Smyth V. Ames
169 U. S. 466
1898
Stone V. Mississippi
loi U. S. 814
1880
Treaty-making Power and Foreign Relations
Chae Chan Ping v. United States (Chinese Ex-
clusion Case)
Cherokee Tobacco Case
De Geofroy v. Kiggs
Downcs V. Bidwcll
Ex parte Baiz
Fong Vue Ting v. United States
Foster v. Neilson
Head Money Cases
Jones V. United States
Terlindcn v. Ames
United Stales, ex rel. Turner v. Williams
United .States v. Lee Yen Tai
United .Slates v. Palmer
Ware v. Hylton
Whitney v. Robertson
130 U. S. 581
1889
II Wallace 616
1871
133 U. S. 258
1890
182 U. S. 244
1 901
135 U. S. 403
1890
149 U. S. 698
1893
2 Peters 253
1829
112 U. S. 580
1884
137 U. S. 202
1890
184 U. S. 270
1902
194 U. S. 279
1904
185 U.S. 213
1902
3 Wheaton 610
1818
3 Dallas 199
1796
124 U. S. 190
1888
INDEX
(^
INDEX
Act of Settlement, in England (1701),
425, 428, 525.
Adams, G. B., and Stephens, H. M.,
Select Documents, 428, 434.
Adams, John, addressed Congress, 71,
306; election of, 72; judicial ap-
pointments, 23s ; issues no vetoes, 76.
Adams, John Quincy, issues no vetoes, 76.
Adjournment of Congress, rules for, 121,
122 ; president's power of, 55.
Administration in United States federal
government, 56, 58, 96-114; super-
vision of, 335, 336; reform needed,
114. 376, 377; in States, 361-377.
See also Executive power.
Admiralty, jurisdiction in United States
federal courts, 233, 251, 252, 253, 254,
261, 264, 26s; in England, 530-532;
first lord, 436.
Advowsons, legally private property,
520.
Agrarian party, in Germany, 611.
Agriculture, commissioner for, 374;
English board president, 436.
Agriculture Committee, of House of
Representatives, 159.
Agriculture, department of, in Argentina,
681; France, 567; United States,
48, 91, 97, 106, 108.
Alabama, State constitutions, 344 ; leg-
islature, 349 ; on judicial circuit, 244.
.\lask.a, appeal from courts, 263 ; in
nominating convention, 192 ; on
judicial circuit, 245 ; resources of, 106.
Alfred, king of England, 414.
Aliens, acquire citizenship, 324, 325 ;
exercise suffrage, 320; status of
women, 323; parties to suit, 259, 260,
264.
Allotments Act in England (1885), 534.
Alsace-Lorraine, electoral district of
Germany, O03.
Ambassadors, appointed, 59, 61, 64;
right to receive, 66 ; and federal judi-
ciary. 251, 254, 260, 261.
Amendments. Sec Constitution.
.\merican colonies. See United States.
American Political Science Association
Proceedings, 360.
American Political Science Review, cited,
17, 82, 139, 141, 159, 267, 667, 688.
An Analysis of System of Government
throughout the British Empire, cited,
549-
Anarchists, in France, 573.
Angles, invade England, 551.
Anglo-Saxon, judicial system, 630;
democracies, 580, 582 ; legislative gov-
ernment system, 375, 694, 697.
Annapolis (Md.), convention at, 18.
Anne, queen of England, 428, 433, 436,
496, 500 ; veto of, 489.
Anson, Sir William R., Law and Custom
of the Constitution, 411, 421, 423, 428,
434, 435, 436, 446, 458, 477, 490, 532.
Anti-Masonic Party, nominating con-
vention, 190.
Anti-trust legislation, 112, 300, 301. See
also Federal Trade Commission.
Appeals :
In Argentina, 682 ; in colonial
courts, 16; in England, 405, 526, 530,
586; France, 571; Switzerland, 625,
626, 62S-630, 634, 641 ; in United
States, 107, 234, 236, 239, 241, 248,
249, 253, 260-265; State courts, 381,
382, 390. .
Appointments :
In Chile, 664.
In France, 565.
In Germany, 607.
In Switzerland, 642.
In United Slates, president's power
of, 58-62 ,83, 112; Senate confirms, 34,
138-140, 218, 305, 306; relation to
party politics, 304 ; in the several
States, 366-368. Sec also Civil sersnce
and Spoils system.
.Vppropriations, in England, 452, 464,
465 ; in United States, controlled by
Congress, 68, 90, 91, 117; divided
responsibility for, 162, 163.
728
INDEX
Appropriations Committee, of House of
Representatives, 159; of Senate, 133.
.Arbitration, French courts for, 554; in
New Zealand, 545; in Switzerland,
628, 645.
Archives, custodian of, 99, 372.
Argentina :
Progressive state, 659, 663, 672,
684-6S6; federal type of government,
668,672; described, 672-687.
Argentina and Australia:
progress compared, 684-686.
Argentina and France:
governments compared, 686, 687.
Argentina and United States :
development compared, 672, 673;
federal systems, 673-674, 679, 680, 682.
Arizona, modifies Constitution, 310.
Arkansas, on judicial circuit, 244.
Army, in France, 565, 575 ; in United
States, under federal control, 7, 55-57,
117. See also Military affairs and War
department.
Arrondissements, in France, 557, 567, 568,
569.
Arthur, Chester A., vetoes, 76.
Articles of Confederation, in United
States, 4, 5 ; negative influence of, 17 ;
proposed revision, "18; weakness, 18,
255 ; no judiciary, 232. See also
Confederation.
Asquith, Henry, English prime minister,
472.
Attainder, forbidden in United States, 8.
Attorney General, in United States,
office created, 97 ; duties, 104, 105 ;
relation to federal courts, 247 ; suc-
cession to presidency, 48 ; in State
administration, 372. See also Justice
department.
Auditor, in State administration, 372,
373-
Australia :
Constitutional experiments, 501 ;
fcfleralion formed, 545, 691 ; Con-
stitution, 545-547; Parliament, 546,
547 ; judiciary, 546, 547 ; interpreta-
tion of Constitution, 546, 547 ; re-
lation to Crown, 485.
Australia and Canada :
constitutions compared, 545, 546.
Australia and South Africa :
constitutions compared, 548.
Australia and United States:
interpretation of Constitution com-
pared, 303; federation, 692. See also
Argentina and Australia.
Austria, in Charlemagne's empire, 592 ;
ruling dynasty, 593, 595 ; population,
594, 596 ; excluded from Germany, 597,
598; European power, 649.
Autocracy in Germany, 599-601, 605-
608, 612.
Baden, and the German empire, 602.
Bagehot, Walter, cited, 399, 480, 483,
485, 588; The English Constitution,
396, 402, 408, 446, 458, 480, 490.
Balance of powers, in United States Con-
stitution, 5, 6. See also Separation of
powers.
Baldwin, Simeon E., American Judiciary,
280, 391.
Balfour, A. J., position on tariff question,
469 ; Conservative leader, 442.
Balkan States, origin of, 649, 653.
Ballinger, Richard A., investigation of,
92.
Ballot, the short, advised, 358.
Balloting, in national conventions, 198,
199.
Balmaceda, Jos6 Manuel, president of
Chile, 668.
Bank of United States, 10, 298, 299.
Banking, in Germany, 605 ; in United
States, 102, 265, 299, 373.
Banking and Currency Committee of
House of Representatives, 158, 159.
Bankruptcy, controlled by Congress,
117; in federal courts, 263-265;
concurrent jurisdiction in, 8.
Barbarossa, Frederick, German emperor,
SQ3-
Bavaria and the (German empire, 602,
605.
Beaconsfield, Benjamin Disraeli, Lord,
leader of Conservatives, 442 ; rela-
tion to Crown, 481 ; prime minister,
4q6.
Beard, Charles A., American Government
and Politics, 13, 21, 27, 52, 53, 58, 72,
80, 115, 121, 124, 157, 170, 175, 189,
230, 23s. 24s. 267, 280, 289, 294, 296,
306, 318, 339. 360, 367. 368, 374, 377,
391; Readings in American Govern-
ment and Politics, 21, 53, 80, 115, 149;
The Supreme Court and the Constitu-
tion, 267, 280.
Beckct, Thomas a, opposes Henry \1,
517, 523-
INDEX
729
Belgium, cabinet system, 580; constitu-
tional government, 650, 651; colonial
empire, 650 ; relation to Europe, 649.
Bicameral legislatures in States, 347 ;
proposal to aliolish, 354 ; in England,
644; Switzerland, 627, 641. See also
the several legislatures.
Bill of Rights, in England, 409, 426; in
United States Constitution, 285, 326.
Birmingham Liberal Association, under
Chamberlain, 507 ; plan fails, 512, 513.
Bismarck, Otto, Prince von, German
chancellor, 598, 599, 603, 606, 607, 611,
695; dismissed, 607 ; Reflcclions, boi.
Blaine, James G., defeated, 46.
Blakeslee, George H., editor, 688.
Blockades, president may declare, 57.
Blount, William, impeacliment of, 141.
Board of Education. See Education.
Board of Trade. See Trade.
Bodley, John E., France, 581.
Boers, colonize South Africa, 547 ; rela-
tion to English, 485 ; in South African
Union, 695.
Bolln V. Nebraska, cited, 309.
Bonapartists, in France, 580.
Bordeaux, local government, 569.
Boss system, in United States, 202, 229,
383 ; in South .America, 683. See also
Corruption in politics.
Boston, resistance to tea tax at, 506.
Botha, Louis, prime minister of Union of
South Africa, 548 ; loyal subject, 458.
Boulanger, George E. J., trial of, 577, 578.
Boundaries, disputes concerning, 256;
of States, 313.
Bourbons, French dynasty, 552, 553, 555,
563.
Boyn©, Battle of the, 522, 536.
Brazil, presidential government, 663 ;
federal type, 668, 669, 672.
Bribery, in nominating conventions, 202 ;
in elections, 229.
British Empire. See England and the
several colonies.
Brown, Peter H., History of Scotland, 539.
Bryan, W. J., speeches printed, 215.
Bryce, James, Holy Roman Empire, 591,
595, 601 ; Studies in History and Juris-
prudence, 585, 591; The American
Commonwealth, 13, 19-21, 30, 37, 51,
■53. 80, 92, 95, 143, 144, ISO, 163, 164,
17s, 201, 204, 218, 294, 300, 306, 318,
339, 345. 360, 377, 383, 391, 411, 698.
Buchanan, James, vetoes, 76.
Budget, in England, 476, 477 ; of 1909,
463, 501-
Buenos Aires, and state of siege, 676.
Bulgarians, war with Greeks, 654.
Billow, Bernhard von, Imperial Germany,
600, 601, 606.
Bundesrath, of German Empire, 602,
603 ; president, 604, 607 ; functions,
607, 608.
Burgess, John W., Political Science and
Comparative Constitutional Law, 323,
328.
Burke, Edmund, Works, 408.
Burr, Aaron, vice-president, 40; candi-
date for president, 286.
Business interests, influence legislation,
228, 354.
Byzantine Empire, decline of, 592 ; rule
of, 653.
Cabal, in reign of Charles II, 427.
CABINET :
As a system of government, 182,
395-402, 639, 663, 687 ; advantages,
502-504.
In Argentina, 681.
In Chile, 665-668.
In England, 397-408, 432, 437-439,
466,468; history of, 421-435; rela-
tion to Crown, 397, 427, 480-482, 489,
490; to Privy Council, 424, 439; to
Parliament, 397, 439, 470, 471, 498,
499, 501-504 ; to Prime Minister,
442, 443 ; to executive and judiciary,
435-445; to party system, 400, 401,
412, 439, 513, 514; responsibility of,
397, 438, 439; qualities of, 440, 441,
443. 444. 473, 474, 509. 526, 527, 529.
In France, 562-565 ; legislative
work, 566, 570, 572-581 ; administra-
tive, 566-571 ; not a partj' organ, 580.
In United States, 61, 81-95, 305;
administrative duties, 96-114; not
responsible to Congress, 93, 94.
Csesars, temporal head of Roman Em-
pire, 592.
Calendar of bills, in House of Represent-
atives, 167.
California, on judicial circuit, 245.
Cambridge Modern History, cited, 539,
655-
Campaign. See Election campaign.
Canada, federation in, 540, 691, 692;
relation to England, 484, 485, 521,
544 ; loyalty to, 484, 693, 694 ; con-
730
INDEX
stitutional system, 501, S40-545 ;
governor general, 541, 542. 544; privy
council, 541, 543; Parliament, 541-
544; judiciarj', 542-544; party sys-
tem, 541, 542; provinces, 691 ; civil
war of 1837, 540.
Canada and England, constitutional
systems compared, 541.
Canada and South Africa, constitutions
compared, 548.
Canada and United States, constitutions
compared, 540, 541. See also Aus-
tralia and Canada.
Candidate for president, in nominating
conventions, 198-200 ; chooses na-
tional committee chairman, 208.
Canon law, relation to modern Roman
law, 592.
Canterburj', Archbishop of, 519, 520; in
House of Lords, 460; synod of, 519,
520.
Cantons, in France, 567-568 ; in Switzer-
land, 614, 615, 6ig, 621, 622, 695 ;
inherent powers, 618; constitutions,
643; governmental institutions, 622-
624, 639; judiciary, 625, 628, 629;
legislation, 626, 627, 630; representa-
tion in federal legislature, 627, 641,
642.
Caracalla, extended citizenship, 584, 585.
Camot, Lazarc H., French president, 563.
Carson, Hampton L., History of the Su-
preme Court of the United States, 237,
238.
Carter, A. T., English Legal Institutions,
532-
Cassimir-Pdrier, J. P. P., French presi-
dent, 563.
Caste spirit, and free government, 660.
Catholics, in Canada, O94; (iermany,
611 ; Switzerland, 635, 636, 638, 694.
Caucus, in Fngland, 580; in United
States, 159, 305; in legislation, 134
136, 172-174; party machinery, 186-
189.
Caudillo, political hoss in South America,
683.
Cavaliers, precursors of Tories, 494.
Celtic peoples, habitat, 551.
Censorship, in Germany, 596.
Census, in Uniteil St;itcs. decennial, 146.
Centralization, in federal governments,
692; in Chile, 668-671; in France,
568-571 ; in South America, 686, 687 ;
Switzerland, 615, 618, 629, 635, 644;
United States, 9-11, 376; opposition
to, 4, 5, 9-
Chairman of United States National
Committee, 208, 209, 217.
Chamber of Deputies, in French Re-
public, 556, 557, 558, 564, 570; min-
isterial access to, 567 ; responsibility
of ministers to, 517; organization,
574-577-
Chamberlain, Joseph, political career,
443. 507, 508, 513; position on tarifi,
467 ; becomes cabinet minister, 507 ;
party organizer, 507-509.
Chancellor :
In England, of the Exchequer, 436,
443, 476, 477 ; of Duchy of Lancaster,
436. See also Lord Chancellor.
In Germany, 604-607, 613 ; veto
rights, 609.
In Switzerland, 633.
Chancery, English court of, 530-532 ;
in States of United States, 382.
Charities and corrections, supervision of,
374-
Charlemagne, founder of empire, 592.
Charles I, king of England, 427, 433, 494,
524; arbitrary rule, 424.
Charles II, king of England, 426, 427,
433, 4Q4-
Charles XIII, king of Sweden, 651.
Charters, for municipalities, 336.
Checks and balances in United States
Constitution, 28-30.
Chesterfield, Philip Stanhope, Lord,
British statesman, 430, 433.
Chicago, convention of i860 at, 210;
headquarters, 216; strike, 57.
Chief Justice, of United States, 241 ;
duties, 140, 242, 243.
Chief of Staff, in American Army, 103.
Cliild labor, proposed national law, 300;
Slate laws to regulate, 358, 359.
(!!hilc, govcrnnieiil, OO3-671.
Chile and England, cabinets compared,
663, 664.
China, United States Court for, 245.
Chinese, in United States, without citi-
zenship, 324, 325.
Chisholm v. Georgia, cited, 257.
Christianity, in relaliuii to democracy,
493; to Roman Emjiirc, 583, 592.
Church, as a puliiical power, 580, 592 -
594; in Canada, 521; in England,
438. 406, 516-523 ; court for, 43s. 527
530; in France, 554 ; in Scotland, 534 ;
INDEX
731
in Switzerland, 621. Sec also Dis-
establishment.
Churchill, Lord Randolph, English
statesman, 513, 514.
Churchill, Winston S., Life of Lord
Randolph Churchill, 4g6.
Circuit Court of Appeals, 238, 239, 262-
265 ; procedure, 244, 245 ; relations
to Federal Trade Commission, iii.
Circuit Courts, in United States, 236 ;
reorganized, 238-240.
Circuits, in England, 531 ; for United
States Judges, 244, 245.
Cities. See Municipalities.
Citizenship, in federal State, 258; in
the Roman Empire, 584, 585 ; in
United States, 287, 322-328.
Civil rights, in federal courts, 265.
Civil service, in England, 440 ; in United
States, 62, 63, 113, 304; in the States,
367. See also Appointments and
Removals.
Civil Service Commission, in United
States, 109, 112, 376; duties, 63, 112-
114; in several States, 374.
Civil Service Reform Committee, in
House of Representatives, 159.
Claims, court of, 105, 263 ; established,
240, 247, 248, 255.
Clark, Walter, cited, 268.
Classified service. See Civil service.
Clemenceau, Georges, South America
To-day, 688.
Cleveland, Grover, as president, ^2;
defeated, 45 ; elected, 46 ; cabinet, 87 ;
appointments, 61 ; removals, 63 ;
vetoes, 75, 76; during railway strike, 57.
Coal, in Alaska, 106.
Code Napoleon (1804), promulgated,
553 ; importance of, 589, 590 ; in
Germany, 595, 605 ; Louisiana, 386.
Code of 191 2, in Switzerland, 618.
Cohens v. The State of Virginia, cited, 252.
Coinage, controlled by federal govern-
ment, 7, 117 ; prohibited to States, 8.
Coke, Sir Edward, chief justice of Eng-
land, 425; position on judiciary, 526.
Collector v. Day, cited, 318.
Collectors of Ports, importance of, loi.
Collins, Jesse, land resolution, 473.
Colonial era, in American history. See
United States.
Colonies :
British, 437, 540-549; secretary for,
435. See also the several colonics.
United States dependencies, 118,
437. See also Hawaii, Philippine
Islands, and Porto Rico.
Colonies department, in French cabinet,
567-
Colorado, on judicial circuit, 244.
Commerce department, in French cabi-
net, 567 ; in LTnited States, 48, 97,
108, 109. See also Foreign and Inter-
state commerce, and Trade.
Commerce, Industry, and Agriculture,
Swiss department of, 623.
Commission government in cities, 368.
Commissioner of Internal Revenue,
duties, loi.
Commissioner of Works, first, in England,
436.
Commissioning oflBcers, president's power
of, 55- _
Commissions, in State service, 358, 374-
376; in Wisconsin, 342.
Committee system, in England, 452-454,
476; in German legislature, 607, 60S;
in United States Congress, 94, 133,
134. 305, 452; in State legislatures,
350, 352, 371. ^
Common Law, in England, 406, 407 ;
growth, 585-588; in United States,
19, 20, 265, 386-388; compared with
Roman, 582, 687.
Common Pleas, court of, in England,
523, 524; in States of United States,
382.
Commons, John R., Proportional Repre-
sentation, 150.
Communes, in France, 557, 567-569,
697; history of, 570; officials, 566,
570; in Switzerland, 614, 622, 624,
625, 628, 695.
Compromises of United States Constitu-
tion, 2i?>< 128, 146.
Comptroller, -in State administration,
373-
Concurrent jurisdiction, of federal and
State courts, 8, 9, 261, 262, 386.
Concurrent powers, in Swiss govern-
ment, 618.
Concurring opinions, in Supreme Court,
243-
Confederation, defined, 3, 4, 689; in
Germany, 593, 596, 597, 689; ended,
598; in Switzerland, 615; United
States, II, 689.
Congress, in Argentina, 676-679, 6S0,
682.
732
INDEX
Congress, United States legislature, ii6;
compared with Parliament, ii6, 405;
powers, 116-118, 324, 32s; implied
powers, 29S-301 ; prohibitions, 8 ;
rules of procedure, 121, 122; pro-
poses amendments, 285 ; relation to
executive, 57, 71-74; to Cabinet, 89-
93; to treasury' department, 100; to
judiciary, 233-236, 250, 251, 260-262,
272-274; party leadership of, 172.
See also Continental Congress, House
of Representatives, and Senate.
Congressional Campaign Committee,
chosen by caucus, 173; organization
of, 225-229.
Congressional districts, 148-150; units
of representation, 192.
Congressmen, elections and qualifica-
tions, 119, 120, 219; compensation
and pri\'ileges, 122-124; as represent-
atives, 125, 126.
Connecticut, colonial legislature, 15;
merges into State, 16, 17; on judicial
circuit, 244.
Conservation of resources, investigation
of, 92; value, 106, 108; regulated by
Congress, 118.
Conservatism, with relation to constitu-
tional readjustment, 281, 282.
Conservative National Union, organized,
511; character, 512, 513.
Conservative party, in Canada, 541 ; in
England, 451, 485; relation to House
of Lords, 461, 462, 465, 500, 501 ; party
organization, 510-512, 514; jKisilion
towards Labor party, 472 ; tariff, 469;
Home Rule, 472; Church of England,
469; propose referendum, 502; E<lu-
cation Act, 440, 441 ; bid for city vote,
496. See also Tory party.
Constantinople, capital of empire, 592,
593-
Constitution :
Meaning of term, 22, 408, 409;
function of, 270.
Australian, 545-548, 692, 693.
Danish, of 1849, 652.
English, 14, 15, 19, 403-411, 560,
561; unwritten, 22, 25; originates in
local government, 412-420; relation
to religious bodies, 516 ; contradictions
of, 410, 411.
French, ss^r^fn.
(Jerman, O02-O13, 695.
Prussian, 597, 599, (xx), 612.
South African Union, 547, 548.
South American, 656-658, 661, 663,
669, 673-675, 681, 683.
Swedish, 651.
Swiss, 615, 617, 618, 626, 627, 630,
632, 635, 637, 689, 694; amendments,
619, 632, 643, 644.
United States, sources, 14-21; arti-
ficiality, 399, 400; framed, 4-6, 9,
12, 14-21, 23, 24, 33-35, 41, 70;
framers, 81, 127, 128, 132, 269, 282:
principles of, 22-29; reverence for,
282, 290; ratified, 10,35, 181, 285, 286,
291, 689; distribution of powers,
6-9, 13 ; executive provisions, 55, 56,
71, 81, 83, 102; judiciary established,
231, 233, 250, 259, 260; on powers of
Congress, 116, 118, 119, 129, 139, 324;
omissions of, 47, 48, 178, 179; strict
construction of, 181, 300, 301; theory
of coordinate powers, 266, 267 ; extra-
constitutional features, 43, 50; in-
terpreted by Supreme Court, 12, 252,
267; contravened, 78; modified, 41;
readjusted by amendments, 8, 138,
281-293 ; method of, 284, 285 ; first
ten amendments, see Bill of Rights;
nth Amendment, 256, 257, 286; 12th
Amendment, 40, 187, 188, 286, 296;
i3lh Amendment, 287; 14th Amend-
ment, 287, 319, 322, 323, 327, 328;
15th Amendment, 287, 319, 320, 322;
16th Ameiidinent, 287-290; 17th
Amendment, 119, 131, 132, 288-290;
readjusted otherwise, 295-307 ; rela-
tions to States, 308-310, 313-315, 318,
319, 321, 329, zii; State constitu-
tions, 342-345 ; imitated by other
nations, 591, 693.
Constitutional Convention, origin of, 17,
18 ; action, 12, 24, 38, 41 ; discussion in,
35; meml)ers, 181, 267, 268. See also
Comjiromises.
Constitutional Yearbook, cited, 496.
("onsular bureau, in State department,
99.
Consuls, and fcrlcral courts, 255.
Contested elections, decided by Congress,
120.
Contested nominations, in nominating
conventions, 19O, 197, 211.
Continental Congress, failure of, 5, 7, 17 ;
calls Constitutional Convention, 18.
(Contract labor cases, in federal courts,
265.
INDEX
733
Contracts, under State control, 7 ; obli-
gation may not be impaired, 8, 310.
Conventions, place in politics, 505. See
also National Convention.
Cooke, George W., History of Party,
496.
Cooley, Thomas M., Constitutional Law,
318, 328; Treatise on Constitutional
Limitations, 328, 339.
Cooperation in Swiss government, 632-
634-
Copyrights, regulated by Congress, 117;
decided by federal courts, 261, 264,
265.
Corn Laws in England, organization to
abolish, 506, 507.
Coronation in England, a parliamentary
ceremony, 489.
Corporations, relation to state, 372;
contributions of, 213, 214; demand for
regulation, 105, iii; control of, 11,
300; taxes on, loi ; conceded citi-
zenship, 258, 259; and 14th Amend-
ment, 328; for transportation, no.
Corrupt practices acts, 358.
Corruption, in Congressional elections,
120; in presidential elections, 46;
in party politics, 229.
Corwin, Edward S., The Doctrine of
Judicial Review, 280.
Council of Governor, in States, 384.
Council of Ministers. See Cabinet; in
France.
Council of State, in Chile, 665, 666; in
France, 565, 571.
Council of States, in Switzerland, 621,
627, 641, 642 ; influence, 628, 633.
Counterfeiting, crime against federal
laws, 117.
County, in England, constitutional im-
portance of, 412, 414.
County, in United States. See Local
Government.
County Central Committee, in party
politics, 222-224.
County Councils Act (1888), 528.
County courts, in England, 413-415,
417, 516, 523, 528, 529; in United
States, 381, 382.
Court martials, relation to pardons, 64.
Courtney, Leonard Henry, Working of the
Constitution, 411, 446, 458.
Courts. See Judiciary.
Credentials, in nominating conventions,
196, 197, 210.
Criminal Appeal, court of, in England,
531-
Criminal jurisdiction, of federal courts,
265 ; State courts, 339.
Criminal law, and pardoning power, 366 ;
faults in administering, 389, 390; left
to States, 315.
Cromwell, Oliver, in English history, 425,
492.
Crown, in English system, 422, 423, 479,
480, 483 ; relation to Prime Minister,
447 ; to Cabinet, 397, 427, 436, 437,
480-482, 489, 490; to Parliament,
425-429, 466, 488, 489; creates peers,
479, 481 ; relation to judiciary, 424—
426, 489, 524, 525; head of church,
518,519; pardoning power, 489 ; rela-
tion to party leadership, 442, 443 ;
non-partisan, 480-482 ; relation to
democracy, 478-490 ; to foreign affairs,
482 ; symbol of unity, 483-485, 489,
490 ; relation to colonies, 484, 485 ;
reviving power of, 490. See also
Royal family.
Crown colonies, future government, 549.
Curia regis, in English system, 405, 421,
492, 523, 524-
Currency, created by Congress, 7, 299 ;
issued, 102 ; taxation of, 10; reform, 73.
Custom, effect on constitutional develop-
ment, 303, 560.
Customs Appeals, court of, 240, 248,
249.
Customs duties, prohibited to States, 8 ;
controlled by Congress, 116; must be
uniform, 117 ; under Treasury depart-
ment, 100, 101.
Dallinger, Frederick W., Nominations
for Elective Office, 190.
Danish Conquest, of England, 404.
Danube River, headwaters, 614.
Davis, Horace A., cited, 267.
Deadlocks, in Senatorial elections, 131.
Dealey, James Q., Growth of American
State Constitution, 360, 377.
Debate, freedom of, 136.
Decentralization, in States system, 361,
363. 376-
Declaration of Independence, in United
States, 690, 691 ; effect on France,
553 : political philosophy, 20.
Defense, in care of Congress, 116, 117.
Delaware, State Senate, 348; on judicial
circuit, 244.
734
INDEX
Delegated powers, of federal courts, 251.
Democracy :
Distrust of, 14s; development, 407,
40S, 493, 550-552 ; changing character
of, 486, 487 ; relation to federal gov-
ernment, 689-697 ; effect of, 649 ; the
ultimate problem of government, 655.
In England, 410, 447, 478-490, 529,
539, 644; extended by colonization,
540 ; in the empire, 549.
In France, 554, 589-591, 644.
In Germany, 611-613, 616.
In Scandinavian countries, 651-653.
In South .\merica, 656-658, 664, 670,
671, 679, 682-684, 687.
In Switzerland, 614-616, 628-632,
639, 644.
In United States, 23, 36, 41, 49;
relation to presidency, 34-36, 49, 190;
to judiciary, 273, 277, 391 ; to party
systems, 125, 126, 185, 194, 203, 204,
212, 230; to constitutional changes,
281, 290, 292-294; to State policies,
313, 341. 342. 354. 356-358, 376, 377-
Democratic party, principles, 184, 185;
attack on Supreme Court, 279 ; caucus,
135; organization, 217, 226, 227;
nominating conventions, 191-193,
195, 199, 210; campaigns, 215, 218;
in New York County, 223 ; gerry-
mander of, 150.
Democratic-Republican party, principles,
10, i8i ; party system, 42, 186, 187;
leaders, 85, 286.
Denmark, a minor state, 649; govern-
ment, 652, 653 ; war with I'russia, 598.
Departmental reports in United States,
submitted to Congress, 91. Sec also
the several departments.
Departments, as French governmental
units, 568-571.
Dependencies, of United States. Sec
Colonies.
Dicey, Albert V., The Law 0/ the Consti-
tution, 402, 408, 423, 434, 446, 500,
698.
Dickinson, G. Lowes, Development of
Parliament during the Nineteenth Cen-
tury, 458, 497-
Diet, in German confederation, 596; in
Swiss confeileral ion, 617.
Dillon, John F., Municipal Corporations,
334-
Diplomacy, controlled by president, 65 ;
dif&culties of, 91.
Diplomatic bureau, in State department,
99.
Direct legislation. See Legislation.
Direct primary. See Primaries, direct.
Direct taxes, and the Constitution, 283.
Disestablishment, in England, 520, 521 ;
in Ireland, 522 ; Wales, 522.
Disraeli. See Beaconsfield.
Dissent, origin of, 494, 519; influence,
521, 528; political sympathies, 496.
Dissenting opinions, in United States
Supreme Court, 243.
Distribution of powers, in United States
go\'ernment, 6-9, 20. See also Sepa-
ration of powers.
District Attorneys, of federal courts, 247.
District Courts, of United States, 236,
237, 245-247 ; jurisdiction, 246, 247 ;
reorganized, 238-240; appeals from,
262, 264; in the several States, 382.
District of Columbia, citizens of, 258;
courts, 240, 249, 263 ; militia, 1 24 ;
how governed, 437 ; committee for,
iSQ.
Divorce, need of uniform laws, 359.
Dodd, Walter F., Modern Constitutions,
561, 617, 619, 655, 664, 665, 669, 673,
674, 681.
Domestic relations, under State control,
7, 379-
Domville-Fifc, Charles W., Great States
of South America, 688.
Doughertj', J. Hampden, The Electoral
System of the United States, 54.
Drafting bureaus, for State legislatures,
353. Sec also Legislative reference
libraries.
Dred Scott decision, effect of, 279, 323.
Dublin, capital of Ireland, 537.
Duma, establishment of, 478.
Dupriez, L., Les Ministres dans les Prin-
cipaux Pays d' Europe et d'Amirique,
477-
Durham, Bishop of, sits in House of
Lords, 460.
Dutch. See Boers and Holland.
Duties. Sec Customs.
Eastern I^mpire. Sec Byzantine Em-
pire.
Edinburi^h Review, cited, 485.
Education, in Argentina, 684 ; in Eng-
land, 435, 438; in l'"rance, 554; in
South America, 659 ; in Swiss govern-
ment, 618, 621, 63s; in United States,
INDEX
735
7, 309, 43S; national bureau of, 159.
See also Public Instruction.
Education Act, in England, 440.
Education Committee, in House of Rep-
resentatives, 159.
Edward I, king of England, 425, 518, 519,
523 ; attaches Wales to Crown, 484 ;
summons representatives, 404.
Edward II, king of England, 423.
Edward III, importance for parliamen-
tary history, 404, 423.
Edward VII, diplomatic successes of,
482; social welfare interests, 482.
Egerton, Hugh E., and Grant, W. L.,
Canadian Constitutional Development,
549; Federation and Unions within the
British Empire, 549.
Elections, in Argentina, 684 ; in Eng-
land, 464, 514, 515; in France, 558,
562, 577; in United States, for presi-
dent, 38-53, 209, 212-216, 220-224;
of judges, 383, 384; controlled by
States, 338, 339; in the States, 219-
222, 320-323; districts for, 338.
Electoral college, purpose of, 39-41 ;
failure of, 41-43, 50 ; present function,
44, 45 ; abolition suggested, 48.
Electoral commission of 1876, settle
dispute, 47.
Elizabeth, queen of England, 493.
Elliot, Jonathan, Debates, 291.
Ely, Richard T., Property and Contract
in their Relations to the Distribution of
Wealth, 331, 332, 339-
Engineers, in army, 103.
England :
A European power, 649 ; insular in-
dependence, 550-551; form of gov-
ernment, 3, 4,395-531; Constitution,
14, 15, 19, 22, 25, 403-420; historical
development, 404-409, 412-433, 533;
monarchy in, 403, 404, 478, 479 {See also
Crown) ; system of law, 19, 582, 585-
588 {sec also Common Law) ; self-gov-
erning colonies, 541, 549, 693. see also
the several institutions of government,
i.e. Cabinet, Constitution, Crown,
House of Commons„House of Lords, etc.
England and France:
cabinets compared, 398, 563, 564,
566, 572. 575, 580.
constitutions compared, 559-561.
executives compared, 398, 563, 564.
historical development compared,
550-553, 555, 506.
judiciary compared, 590, 591.
legislatures compared, 565, 574, 577.
party system compared, 573, 574,
580, 581.
England and Germany:
legislatures compared, 609.
religious reform compared, 594.
England and Switzerland:
democracy compared, 616, 631.
executives compared, 640.
judiciary compared, 644, 645.
legislation compared, 644, 645.
England and United States:
cabinets compared, 396-401.
colonial systems compared, 437.
constitutions compared, 14, 15, 19.
22, 29, 399, 400, 405, 409, 412, 501.
church policy compared, 496.
democratic progress compared, 485.
educational system compared, 438.
effects of custom compared, 303.
e.xecutives compared, 403, 444, 639.
financial systems compared, 137, 477.
governmental systems, 444-446, 505,
506.
judiciary compared, 266, 267, 275,
398, 399, 446, 630 ; common law sys-
tems, 19, 386-388; equity systems,
253, 388.
legislatures compared, 19, 116, 123,
136, 151, 173, 343-
local government compared, 336,
419, 420, 437, 438.
militar>' requirements compared,
487.
party systems compared, 177, 182,
183, 491, 498, 514, 515-
patriotism compared, 483, 484.
public opinion compared, 30.
speakership compared, 155, 452.
separation of powers, 29, 526, 527.
Enock, C. Reginald, Republics of Central
and South America, 669, 688.
Enrolled Bills Committee, of House of
Representatives, 169.
Enumerated powers, in United States
Constitution, 6.
Episcopal church in United States, 521.
See also Church ; in Canada and Eng-
land.
Equal Suffrage. See Woman's suffrage.
Equity proceedings, in federal courts,
253, 264 ; in State courts, 388.
Essex, number of electors, 449.
Exchequer court, origin of, 523, 524.
736
INDEX
Excise. See Internal revenue.
Executive, in England, 397, 4.57; in
Swiss Republic, 621-626; in United
States, 25-28, 31, 33; in States, 345-
347. See also Crown, Governors,
Kaiser, and President.
Experimentation, in State government,
35(^358.
Experts, in administrative offices, 114,
375-
Ex post facto laws, prohibited, 8.
Extra-constitutional rights of president,
70; of party government, 177, 178;
of the cabinet, 81, 82.
Extradition, in Argentina, 674; in
United States, 98, 99; between the
States, 315.
Fairlie, John A., Local Government in
Counties, Toums, and Villages, 339,
382; National Administration of the
United States, 59, 80, 107, 115.
Farrand, Max, The Federal Constitution
and the Defects of the Confederation, 17,
21.
Federal Assembly, in Switzerland, 621,
623, 624, 625, 628, 632, 634, 641, 643.
Federal Council, in Switzerland, 621-
626, 628, 633, 634, 638, 642.
Federal Pact, in Switzerland, 615.
Federal system, defined, 3, 4, 7, 649, 689,
696; advantages of, 12, 341 ; in Aus-
tralia, 545, 691, 693; in Canada, 540,
S41, 691, 692, 604; in South Africa,
692-694; in South America, 668, 671,
672, 684, 687 ; in Switzerland, 617-619,
621-638, 689, 694, 695, 697 ; ill United
Kingdom, 539; in United States, 307,
689-691,697; relations to States, 31O
319-
Fetlcral Trade Commission, organized,
icx). III ; duties, 112, 376.
Federal TriJjunal, in Switzerland, 621,
625, 628, 629, 630, 634, 641.
Federalist, cited, 24, 39, 41, 54, 75, 76,
80, I2«. 141, 178, 26K, 280, 283, 284.
Federalist party, in United Stales, prin-
ciples, 10, 181, 183; elects president,
42; leader, 8s; develops caucus, 187,
188; controls courts, 235; lacks
organization, 187; dissolves, 183.
Fcuflal system, in Europe, 551, 552; de-
cline of, 552, 553, 570, 629.
Fillmore, Millard, uses no vetoes, 76.
Finance, in England, 476; in France,
575 ; in United States, 99-102 ; re-
form needed, 97 ; in election cam-
paigns, 213—216, 222, 224, 227, 228,
358. See also Banking and Treasury.
Finance Committee, in Senate, i33-i3S-
Finance department, in Argentina, 681 ;
in France, 566, 5O7. See also Treas-
ury department.
Finance, Industry, and Public Works,
department in Chile, 665, 667.
Finley, John H., and Sanderson, John F.,
The American Executive and Executive
Methods, 76, 77, 80, 95, 115, 378.
Florida, in election of 1876, 47; on judi-
cial circuit, 244.
FoUett, M. P., The Speaker of the House
of Representatives, 175.
Food and dairy commission Cirs, 374.
Ford, Henry Jones, The Rise and Growth
of American Politics, 30, 54, 76, 125,
144, 176, 182, 189.
Foreign aflairs, in England, 482 ; secre-
tary for, 436, 439; in United States,
7, 8, 90, 254 ; president's relations to,
55, 56, 64-69. Sec also State depart-
ment.
Foreign AfTairs and Public Worship
departme;U, in Argentina, 681.
Foreign Aflairs Committee, in House of
Representatives, 159.
Foreign Affairs department, in Chile,
665; in France, 566; in Switzerland,
623.
Foreign commerce, regulations for, 117,
312.
Foreign Relations Committee, in Senate,
68, 133, 134-
Foreign Secretary in England, 436;
responsible for diplomacy, 439.
I-'orcsts, in national domain, 118; su-
pervised, 106.
Foster v. Neilson, cited, 69.
I'ox, Charles James, as party leader, 495.
France :
European power, 649 ; form of gov-
ernment, 3, 24, 550, 697; historical
outline, 551-556; in Charlemagne's
empire, 592 ; separated from, 593 ;
constitutions in, 22, 553-556; Third
Republic, 556-5SQ. 562; alliance with
Russia, 565 ; legal system, 589-S91.
631; parlies in, 491, 57.S-S76; presi-
dency, 398, 562-571. Sec also the
several institution-p of government, i.e.
Cabinet, Constitution.
INDEX
737
France and Germany :
administration compared, 608.
reform movements, 505.
France and South A mcrka :
cabinet system compared, 663, 666-
66g.
progress, 658, 68 7.
France and Switzerland:
democracy compared, 616.
judiciary, 62g.
statutes, 625.
France and United Slates:
interrelations, 552, 553.
cabinets compared, go.
constitutions compared, S5g-56i,
sgi-
executives compared, 57.
judiciary compared, sgi.
legislatures compared, 565, 566.
local governments compared, 568.
party systems compared, 578. See
also Argentina and France; England
and France.
Franchise, restrictions on, in England,
482 ; extension of, 447, 507. Sec also
Suffrage.
Francis II, emperor of Austria, titles, 595.
Frankfort, Constitution at, 5g6, sg7.
Franking privilege, of Congressman, 226.
Franks, of German origin, 551.
Frederick, emperor of Germany, 606, 607.
Frederick William III, of Prussia, 595.
Frederick William IV, king of Prussia,
sg7, sg8.
Free debate, restricted in House of Rep-
resentatives, 165, 166.
Free Silver, in Democratic convention,
ig7.
Freedom of religion, guaranteed, 285.
Freedom of speech, guaranteed, 285.
Freeman, Edward A., Growth of the Eng-
lish Constitution, 404, 623 ; Woman
Conquest, 420.
Freemasonry, in France, S7g.
French, Burton L., cited, isg.
French, in Switzerland, 614.
French-Canadians, loyalty of, 694.
French Revolution, influence, 5g4, 595 ;
effects of, 553-555. 561, 568, S7g, 62g;
in Switzerland, 616.
Freund, Ernest, The Police Power, 330,
331, 339-
Gallia, under the Roman Empire, 551.
Gambling, State laws against, 337.
3B
Gardiner, Samuel R., Student's History oj
England, 537.
Garfield, James A., uses no vetoes, 76.
General Staff, in American army, 103.
Geographical distribution, of U. S.
cabinet, 86, 87.
Geological Survey, duties, 106, 107.
George I, king of England, 429, 430,
433, 519-
George II, king of England, 42g, 430,
433-
George III, king of England, 445, 4g6;
attempts to restore royal power, 430,
431, 433; rebellion against, ig, 553;
uses no vetoes, 76.
George IV, relation to cabinet, 431.
George V, accession, 464 ; coronation
oath, 48g.
Georgia, defies Supreme Court, 257 ; in
judicial circuit, 244.
Germans, in Chile, 670; in Switzerland,
614.
Germany :
European power, 64g ; historical
sketch, 5g2-5gg ; confederation in,
68g ; federation, 616, 695, 6g6; in-
vasion of France, 553 ; war with
Denmark, 652; treaty with France,
556 ; empire formed, 602 ; govern-
mental system, 3, 12, 482, 602-613;
merchant marine, 650. See also
Kaiser, Prussia, and the several insti-
tutions of government.
Germany and United States:
administrations compared, 375.
federation compared, 605.
See also England and Germany;
France and Germany.
Gerry, Elbridge, vice president, 150.
Gerrymandering, term defined, i4g,
150.
Gettell, Raymond G., Introduction to
Political Science, 28.
Gilman v. Philadelphia, cited, 8.
Gladstone, William E., prime minister,
436, 480, 507; cabinet of 1881, 507;
civil service, 441 ; Home Rule policy,
46g, 508, 538; party program, sog.
Goodnow, Frank J., City Government in
the United States, 33g; Politics and
Administration, i8g ; The Principles of
the Administrative Law of the United
States, 30, 378.
Gorman, A. P., chairman of National
Committee, 218.
738
INDEX
Governors, in Chile, 66g; in United
States colonial period, 15, 34; Stale
executive, 89, 99, 361, 363 ; duties,
362-368; prestige, 311; influence on
legislation, 368-371.
Grant, U. S., suspensory power, 63 ;
vetoes, 75, 76.
Great Seal, in State department, 99.
Greece, confederation in ancient, 689,
691 ; modern war with Bulgaria, 654.
Green, J. R., History of the English
People, 413, 414, 420, 427 ; Making
of England, 522; Short History of the
English People, 418, 425, 522.
Gr^vy, Jules, French president, 558; re-
signs, 563.
Grisons, Swiss canton, 614.
Gully, W. C. (later Viscount Selby),
Speaker of the House of Commons, 45 1 .
Habeas Corpus Act, in Great Britain,
19, 409, 675.
Hague Conferences, on federation, 696.
Haines, Charles G., The Amcri<:an Doc-
trine of Judicial Supremacy, 2S0.
Ilall, William E., International Law, 655.
Hamilton, Alcxanfler, framer of Consti-
tution, 282 ; in first cabinet, 85 ; as a
party leader, 10, 180, 181, 186; cited,
39, 41, 74, 268, 269.
Hanna, Marcus, chairman of National
Committee, 218.
Hapsburg, House of, 593 ; in Switzer-
land, 615.
Harrington, James, political philosopher,
20.
Harris, W., Radical Party in Parliament,
497-
Harrison, Benjamin, election of, 45;
vetoes, 76.
HarrJHon, William H., uses no vetoes, 76.
Hart, Albert B., Actual Government, 21,
54, us, 176.
Hartington, Spencer Compton Caven-
dish, marquis of, political leader, 480.
Hawaii, in nominating convention, 192;
appeal from courts 263 ; on judicial
circuit, 245.
Hayes, Rutherford B., election, 47; ve-
toes, 76.
Health. See Public health.
Ilcarn, William E., Government of Eng-
land, 411, 477, 490.
Henry I, icing of England, 405, 415, 416;
issues charters, 416, 492.
Henry II, king of England, 405, 415, 417 ;
influence on government, 517, 523, 535.
Henry III, and Magna Charta, 416, 421 ;
influence on growth of government,
S18.
Henry IV, a parliamentary king, 423.
Henry VII, absolutist tendencies, 425,
506, 518, 524.
Henry VIII, arbitrary tendencies, 424,
425, 447, 506, 518, 519, 524.
Henry, Patrick, cited, 291, 292.
Hesse, and the German empire, 602.
High Court of Justice, in England, divi-
sions of, 530-532.
Highways. See Roads.
Hinds, Asher C, Precedents, 124, 148.
Hinsdale, Mary L., A History of the Presi-
dent's Cabinet, 82, 83, 95, 100.
Hohenzollern dynasty in Germany, 607.
Holdsworth, William S., History of
English Law, 532.
HoUand, a minor state, 649 ; colonial
empire, 650; constitutional govern-
ment in, 650, 651.
Holmes, Justice Oliver Wendell, cited.
332.
Holy Roman Empire, history of, 592-594.
Home department, secretary for, 436;
controls police, 438, 439, 489 ; relation
to Scotland, 535.
Home Rule for Ireland, 508, 539; a
party issue, 469, 472, 474.
Home rule, in United States, in local
aflfairs, 335, 336.
Homestead laws, value of, 106.
Hopkins, Senator Albert J., cited, 121.
House of Commons :
In British empire, 410, 432; im-
portance of, 410, 447 ; history, 404,
405, 429, 447 ; composition, 447-450,
483; dissolution, 449; new election
for, 449-451 ; committee system, 452
454, 476; procedure, 452-458; rela-
tion to cabinet, 470, 471, 498, 499; to
House of Lords, 462-465 ; to party
system, 412; special functions, 476,
524. See also Parliament and Speaker.
House of Deputies, in Argentina, 677-
679, 682.
Hoi'SE of Lords :
Origin, 404 ; history, 459, 463 ;
described, 459, 460; composition of,
460, 461; life peers, 460, 525, 526;
representative peers, 460, 534, 537 ;
procedure, 461-463 ; judicial aspects,
INDEX
739
40s, 424, 463, 525, 530, 534. 537;
relation to cabinet, 49g ; party sym-
pathies, 496, 500 ; reform of, 479, 483,
501-503 ; relation to House of Com-
mons, 447, 462-465.
House of Representatives :
Colonial prototypes, 16 ; elections
for, 226; membership, 130, 147-151 ;
' procedure, 122, 158-176; rules, 122,
164-167; functions, 40, 61, 68, 137,
138, 141,306; leadership in, 173-175;
term, 151-154; popular character,
145, 146; compared with Senate, 144,
145, 147. See also Congress and
Speaker.
Howard, Burt E., The German Empire,
601, 603.
Hundred courts, in English judiciary,
523; relation to church, 516.
Hunt, William, History of the English
Church, 522.
Idaho, on judicial circuit, 245.
Illinois, gerrsTTiander in, 150; senator
from, expelled, 120; on judicial circuit,
244 ; State senate of, 348.
Immigration cases, in federal courts, 265.
Impeachment, in Argentina, 67S, 682 ;
in England, 423 ; not used in Switzer-
land, 642 ; in United States, 55, 62, 63,
92, 234, 23s; methods, 26, 29, 118,
140, 141, 175; in the several States,
347, 367, 368.
Imperial idea. See German Empire and
Holy Roman Empire.
Implied powers and the United States
Constitution, 6, 10, 269, 298-301.
Imports and Finance, Swiss department
of, 623. See also Customs.
Income taxation, loi ; federal law de-
clared unconstitutional, 243, 278, 288;
in Wisconsin, 342.
India, Victoria made Empress of, 484 ;
imperial relations, 436, 437, 453 ;
appeals from, 405 ; compared with
Ireland, 538; future self-government,
549. 697 •
Indian .^flairs, in United States, com-
missioner for, 107.
Indiana, gerrymander in, 150; on judi-
cial circuit, 244.
Indians, as national wards, 118; exempt
from restriction, 309.
Industrial control, should be uniform,
359-
Industrial development, since the Civil
War, 109, 111,312; causes complexity,
373-
Inherent powers, of Argentine provinces,
673; of Swiss cantons, 618; of States
in United States, 251, 262, 307, 308,
342, 379. See also Reserved powers.
Initiative, in Switzerland, 619, 626, 632,
643 ; in United States, 278, 354, 355,
358.
Injunctions, in federal courts, 279; im-
proper use of, 383.
Insurance, in Australia, 685 ; in Ger-
many, 605; Switzerland, 618; by
State authority, 342, 358; supervision
of 373-
Intendants, in Chile, 669.
Interior department, in Argentina, 676 ;
in Chile, 665 ; in French cabinet, 566-
569, 571; in Switzerland, 623; in
United States, estabhshed, 97 ; duties,
105-108 ; investigated, 92 ; secretary's
succession to presidency, 48.
Internal improvements, in Argentina,
684; in United States, 103.
Internal navigation, in federal jurisdic-
tion, 253.
Internal revenue, collections of, loi ;
cases in federal courts, 265.
International law, importance of, 98 ;
offenses against, regulated by Congress,
117 ; relation to small states, 654, 655.
Interpellation, in French legislature, 576,
577-
Interstate and Foreign Commerce Com-
mittee of House of Representatives,
159-
Interstate commerce, under federal con-
trol, 7, 8; regulated by Congress, 105,
117, 118, 299, 300; cases in federal
courts, 265 ; conflict of jurisdiction on,
9; aid in centralization, 11.
Interstate Commerce Act of 1887, 109.
Interstate Commerce Commission, or-
ganized, 109, no; duties, no, in,
300; importance of, 375.
Interstate Commerce Committee, in
Senate, 133.
Intervention, in provincial affairs, in
Argentina, 674-676.
Investigations, by Congress, 92.
Iowa, United States District Courts in,
246; on judicial circuit, 244.
Ireland, English rule in, 535-539; execu-
tive, 537 ; chief secretary for, 435 ;
740
INDEX
lord lieutenant, 436 ; relation to cabi-
net, 4j6; parliamentar>' representa-
tion, 448-450, 534. 537; representa-
tive peers, 460, 537 ; obstruction
tactics, 457; land system, 536-538;
judiciary, 524, 537, 582; Home Rule.
469, 472, 508, 539; relation to royal
Jamily, 484; church history, 521, 522,
536; government compared with
India, 538.
Irish Nationalists, in Parliament, 472.
Irrigation, government aid to, in Argen-
tina, 684; in United States, 106, 107.
Italians, in Switzerland, 614.
Italy, in Charlemagne's empire, 592 ;
independent states in, 593 ; Roman
law, 593 ; a European power, 649 ;
parties in, 491 ; compared with South
America, 658.
Jackson, Andrew, as president, 32,
opposes nullification, 10; vetoes, 74-
76.
Jacques, Leon, Les Partis Politiques sous
la III' Ripublique, 573, 580.
James I, accession, 534, 536 ; illegal acts,
425-
James II, despotism of, 425, 426, 524;
excluded from throne, 494, 519, 522;
attempts to regain Crown, 536.
Japanese, refused United States citizen-
ship, 325.
Jefferson, Thomas, in Washington's
cabinet, 82, 85 ; a party leader, 10
180, 181, 186, 187; chosen president,
40, 286, 287 ; judiciary under, 235 ;
uses no vetoes, 76; cited, 301, 553;
Manual of Parliamentary Practice, 164.
John, king of EnKlan<l, 552; arbitrary
acts, 416; signs Magna Charta, 423,
492.517-
Johnson, Andrew, contest with Congress,
62, 225.
Joint Conferences, in United States
Congress, 168, i6g.
Jones, Chester Lloyd, Election in the
United States, 189, 195, 201, 218; Law
Making in the United Stales, 342, 344,
345. 360.
Judges, appointefl by executive, 29, 55,
SQ, 234, 241, 367, 383, 384; elected,
383 ; life tenure of, 62 ; participate in
impeachment trials, 368; recall of,
310, 358; terms, 233-235. 24'-
Judicature Act of 1873 in England, 531.
Judicial Code of 191 2, 236, 240, 244, 296.
Jltjiciary:
In Argentina, 679, 681-683.
In England, differentiated, 523-525 ;
independence, 446, 524, 525; relation
to Crown, 489; to Parliament, 406;
divisions of, 527-532; compared with
.\merican, 398, 399.
In France, 554, 559, 560, 571, 577,
589-591-
In South Africa, 548.
In Switzerland, 619, 621, 625, 628-
631, 634.
In United States, in colonial times,
16; federal, 104, 231-240, 250-265,
588, 589; relation to Congress, 117,
266-279, 29s; sphere of action, 25,
26, 28, 29, 323, 331, 332; peculiar
functions, 275, 276, 380, 384; in the
States, 379-391-
Judiciary Act of 1789, in United States,
231, 236, 24s, 296.
Judiciary Committee of House of Repre-
sentatives, 158, 159; of Senate, 133.
Jurisdiction of Argentina federal courts,
682 ; of Swiss courts, 628 ; of United
States federal courts, 232, 234, 236,
247, 248, 250-265 ; of State courts,
385, 386; transfer to federal courts,
385, 386.
Jury system, development of, 415 ; right
of trial by, 8, 231, 285 ; functions, 247,
388,389; criticized, 390.
Justice, French department of, 566, 567 ;
United States department, 97, 103-
105, 110, 112; relation to federal
courts, 247. Sec also Attorney Gen-
eral.
Justice and Police, Swiss department of,
623.
Justice and Public Instruction depart-
ment, in Argentina, 681 ; in Chile. 665.
Justices of the Peace, in England, 527-
529; in Switzerland, 628; in United
States, 381.
Justinian, Roman emperor, 592; codifies
law, 584, 580.
Juvenile courts, duties, 382 ; in District
of Columbia, 249.
Kaiser, origin of term, 593, 594, 602;
ofTice, 604; military powers, 605, 606;
other powers, 482, 607-609. Sec also
William I and II of Cicrmany.
Kansas, on juilii iai circuit, 244.
INDEX
741
Kebbel, Thomas E., History of Toryism,
497-
Keith, Arthur B., Responsible Govern-
ment in the Dominions, 549.
Kemble, John M., Saxons in England,
420.
Kent, James, cited, 271.
Kentucky, on judicial circuit, 244.
Kilkenny, smallest Enghsh constituency,
449-
King. See Crown.
King, Joseph, and Rafferty, F. W., Our
Electoral System, 449.
King's Bench, court of, origin, 523, 524;
functions, 530-532.
Knox V. Lee, cited, 275.
Knox, Philander C, secretary of state,
124.
Kruger, Paul, Kaiser's telegram to, 482.
Labor Committee, in House of Repre-
sentatives, 159.
Labor department, in France, 567 ; in
United States, 48, 97, 108, 109.
Labor disturbances, relation to injunc-
tions, 279.
Labor legislation, in Argentina, 684;
in Switzerland, 618, 621; in United
States, 575.
Labor party, in England, 472, 515. See
also Trades unionism.
LaFollette, Robert M., Wisconsin sen-
ator, 291.
Landlordism, in England, 483 ; in Ire-
land, 536.
Land Ofhce, bureaus, 106; regulations,
57-
Lands, public in United States, under
federal control, 118, 251, 259, 265, 309,
310; laws investigated, 97. See also
Public domain.
Landsgemeinde, rn Switzerland, 615,
623, 626.
Land system, and free government, 660,
661; in France, 554; in Ireland, 536-
538; in New Zealand, 545.
Language, influence on history, 551.
Lamed, Josephus N., History for Ready
Reference, 599, 600.
Latin America, cited, 638.
La Union, Chilean town, 670.
• Laurier, Sir Wilfred, Canadian premier,
694.
Law, Bonar, position on tariff question,
469.
Law, respect for, 104 ; enforcement, 56,
57. 337. 3i>5 < private under state con-
trol, 7. See also Common Law, Legis-
lation, and Roman Law.
Learned, Henry Barrett, The President's
Cabinet, 81, 95.
Lecky, W. E. H., England in the Eight-
eenth Century, 497.
Lee, Sir Sidney, Queen Victoria, 490.
Legal profession, cabinet members from,
89.
Legislation, movement for direct, 355.
Legislative power, in Switzerland, 626-
628; in United States, 25, 26, 33;
relation to executive, 27, 70-79. See
also the several legislative bodies.
Legislative reference libraries, 353.
Legislatures, in France, 565, 566, 570,
572; in United States, colonial era,
is; relation to judiciary, 266-279;
in the several States, 129, 131, 132,
340-360; influenced by governors,
368-371. See also the several legis-
lative bodies.
Libel action, cannot be brought against
Congressmen, 123.
Liberal party :
In Canada, 541.
In England, 443, 486, 496 ; organiza-
tion, 507-510, 514; relation to House
of Lords, 460-461, 500, 501 ; to Home
Rule, 469, 472 ; to Women's Suffrage,
470; to Labor party, 472; to educa-
tion, 440, 441.
In Switzerland, 636, 637.
Liberal Unionist party, unites with Con-
servatives, 472.
Liberal Yearbook, cited, 457-459. 497.
509-
Liberty, essentials of, 24, 29 ; restrained
by police power, 331.
License Cases, cited, 330.
Lieutenant Governor, functions, 349,
371.
Life peers. See House of Lords.
Life-saving service, in Treasury depart-
ment, 102.
Limited powers, of federal government,
251, 270, 307; by constitutions, 342-
344,352; of Congress, 116, 117.
Lincoln, Abraham, nomination, 210
election, 45 ; chooses cabinet, 86
during the war, 32, 57, 58; vetoes, 76
on Dred Scott decision, 279 ; reverence
for, 484; Gettysburg speech, 691.
742
INDEX
Liquor traffic, regulated in Switzerland,
621 ; in United States, loi, 337.
Lloyd, Henry D., A Sovereign People, 626.
Lloyd-George, David, English states-
man, 443.
Loans, in care of Congress, 116. See also
Finance.
Local Government, teaches self-gov-
ernment, 658, 686 ; transmits govern-
mental forms, 340, 341, 412.
In Chile, 669-671.
In England, 412-420, 436, 526, 529;
compared with L'nited States, 437, 438.
In France, 554, 568-571.
In United States, 4, 7, 313, 333-339,
6go ; dual functions, 336 ; compared
with England, 437, 438.
Local Government Board, in England,
437, 438, 529-
Locke, John, political philosopher, 20.
Log-rolling, in nominating conventions,
202 ; in State legislatures, 383.
Lollards, rebellion of, 493.
London, representation in Parliament,
449; Bishop of, 460; police force,
438 ; Court of Appeals sits in, 531.
Ix)ng Parliament described, 424, 425, 524.
Lord Chancellor, of England, 437, 459,
489; position, 446; ciualifications,
443; functions, 435, 461, 520, 525,
526, 530.
Lorimer, William, expelled from Con-
gress, 120.
Louis XIV, aids Stuart monarchs, 426.
Louis Napoleon. See Napoleon III.
Louisiana, State constitutions, 344;
legislature, 349; in election of 1876,
47; judges from, 61 ; Roman law in,
386, 582 ; on judicial circuit, 244.
Ix)w, A. Maurice, The Usurped Powers
of the Senate, 139.
Lowell, A. Lawrence, Governments and
Parlies of Europe, 557, 559, 561, 567,
569, S74. S7S, 577, 602, 613, 617, 620;
Public Opinion and Popular Govern-
ment, 162; The Government of Ennland,
136, 402, 413, 414, 420, 436, 438, 440,
441, 443. 446, 449, 4SI, 453, 461, 473.
477. 4S0. 487. 400, 497, 512, 520, 522,
5.50. 532, S3,'). 530-
Loyalists, as a political party, 179.
Lyons, local government, 569.
McCall, Samuel, The Business of Con-
gress, 154, 176.
McCarthy, Charles R., The Wisconsin
Idea, 360, 37S.
McClain, Emlin, Constitutional Law in
the United States, 123, 253, 280, 315,
318, 322, 324, 328.
McConachie, Lauros G., Congressional
Committees, 176.
McCracken, W. D., The Rise of the Swiss
Republic, 620; Teutonic Switzerland,
623.
Machine politics, in nominating con-
ventions, 202.
McCuUoch V. Maryland, cited, 6, 10, 298,
317-
McKinley, William, letter of acceptance,
216; vetoes, 76.
MacMahon M. E. P. M., president of
France, 556, 557, 562 ; resigns, 558, 563.
Macy, Jesse, Party Organization and
Party Machinery, 172, 189, 218, 230;
Political Parties in the United States,
180, 185, 189; The English Constitu-
tion, 22, 29, 411, 435.
Madison, James, framer of Constitution,
282, 283, 284; uses term cabinet,
82 ; employs veto power, 76 ; cited,
23, 24, 178. See also Federalist.
Magna Charta, in English constitutional
history, 399, 409, 415, 416, 421, 423,
492, 517, 585, 587, 645; United States
heritage in, 19.
Maine, governor's council in, 384; on
judicial circuit, 244.
Maitland, Frederick William, Justice and
Police, 532.
Mann white slave act, 300.
Marbury v. Madison, cited, 269, 270, 272,
297.
Marine department, in Argentina, 681 ;
in French cabinet. Sec also Navy.
Maritime jurisdiction, distinguished from
admiralty, 254.
Marriage, need of uniform laws of, 358,
359-
Marriott, J. A. R., English Political
Institutions, 532; Second Chambers,
581.
Marshall, Chief Justice John, decisions,
10, 12, 26(), 270; cited, 271, 272.
Marshals, of United States Courts,
244, 24s, 247.
Martial law, in riots, 365.
.Mary II, accession, 519.
Maryland, taxes bank notes, 10; on
judicial circuit, 244.
INDEX
743
Massachusetts, colonial legislature, 15 ;
executive in, 363, 384; on judicial
circuit, 244; gerrymander in, 150.
Master of the Rolls, 531.
Matilda, queen of England, 517.
May, Thomas E., Constitutional History
of England, 431, 434.
Mayors, of French communes, 566, 570;
in Swiss communes, 622, 624, 625.
Medley, Dudley J., English Constitu-
tional History, 411, 434, 477, 532.
Merchant Marine and Fisheries Com-
mittee, of House of Representatives,
ISO-
Merriam, C. Edward, American Politi-
cal Theories, 30, 220; Primary Elec-
tions, 230.
Mexico, federal government in, 66g.
Meyer, Ernest C, Nominating Systems,
189, 201, 202, 204.
Michigan, on judicial circuit, 244.
Mileage, allowed to Congressmen, 123,
127.
MiUtary Affairs, Swiss department of,
623.
Military Affairs Committee, in House of
Representatives, 159; in Senate, 133.
Military system, in Germany, 598, 599,
60s, 606 ; in England and United
States, 437. See also Army, and War
department.
Militia, called out by governors, 365 ;
officers, 55, 124; administration, 102.
Minimum wage laws, 358, 359; com-
mission for, 374.
Ministerial responsibility. See Cabinet,
and Responsibility.
Minnesota, State senate, 348; on judi-
cial circuit, 244.
Minor v. Happersett, cited, 321.
Mississippi legislature, 349; guberna-
torial election, 362 ; on judicial circuit,
244.
Missouri, restriction imposed on, 309;
county courts in, 381 ; on judicial
circuit, 244.
Model Parliament, summoned, 404,
412.
Monarchy, types of, 3, 478, 479 ; United
States dreads, 5, 34, 35 ; democratic
monarchy a new type, 478, 479, 482,
483 ; compared with presidency, 488.
See also Crown.
Money bills. Sec Appropriations.
Monmouth, Uuke of, succession, 494.
Monopolies, in Swiss government, 618,
621. See also Corporations. ,
Monroe Doctrine, 691.
Montana, on judicial circuit, 245.
Montesquieu, Charles de Secondat baron
de la, political philosopher, 20, 26 ;
influence of, 553 ; Spirit of the Laws,
25-
Montfort, Simon de, place in parliamen-
tary history, 404, 416.
Moon, Reuben O., The Reorganization of
the Federal System, 238.
Moore, William H., New Australian
Commonwealth, 549.
Morley, John, Life of Gladstone, 480, 539.
Mormons, in Congress, 120, 121.
Morris, Governeur, in Constitutional
Convention, 267.
Moses, Bernard, The Federal Government
of Switzerland, 617, 620.
Mothers' pensions, advocated, 358.
Municipal Councils Act (1835), 529.
Municipal courts, functions, 382.
Municipalities, in Chile, 670; in Eng-
land, 420, 496, 529; in United States,
229, 334-336; public ownership in,
358 ; in Europe in general, 334, 335.
Munro, William B., The Government of
American Cities, 339; The Govern-
ment of European Cities, 550, 571.
Mutiny Act, in English Parliament, 426.
Napoleon I, assumes imperial power,
595 ; as French emperor, 5S3-S5S ;
institutional measures, 565, 568.
Napoleon IH, in France, 556 ; conquered,
399-
National Assembly in France, elects
president, 557, 562 ; amends constitu-
tion, 559.
National Committee, in United States
party politics, 191-197, 225, 226;
appointment, igg ; authority, 196,
197, 207, 212; composition, 206, 207;
officials, 208, 209, 213; duties, 207-
210, 212-216; permanency, 205, 211,
216-218.
National Convention. See Nominating
Convention.
National Council, in Switzerland, 621,
625, 641, 644; described, 627, 628.
National Liberal Federation, in England,
S07-510, 513.
National Liberal party, in Germany,
6io-6i2.
744
INDEX
National Republican party, in United
States, nominating convention of,
igi.
Nationalism, in United States, in-
creased power of, 310-314. Sec also
Centralization.
Nationalists in England. Sec Irish
Nationalists.
Naturalization, under federal contiol,
117, 324, 325.
Naval .\ffairs Committee, in House of
Representatives, 159.
Navy, in England, represented in cabinet,
436; in United States, under federal
control, 7, 55-57, 117- See also
Marine department.
Navy department, in United States,
established, 97 ; duties, 102, 103 ;
secretary's succession to presidency,
48.
Nebraska, restriction imposed on, 309 ;
impeachment trials, 368; on judicial
circuit, 244.
Negroes, protection for, 319, 328; ac-
quire citizenship, 323, 325. Sec also
Slavery.
Nevada, population, 284; restriction
imposed on, 309; on judicial circuit,
245-
Newcastle Program, in English politics,
509-
New England Confederation of 1643,
690 ; constitutions of States, 345 ;
judges in, 383. See also the several
States.
New Hampshire, on judicial circuit, 244 ;
judges in, 384.
New Jersey, State senate, 348; guber-
natorial term, 363 ; on judicial cir-
cuit, 244.
New Mexico, State constitution, 345;
gubernatorial term, 363.
New York City, customs ofTicers, 101.
New York County, party organization,
223.
New York State, population, 284; Slate
senate, 348 ; chief justice, 384 ; courts
in, 244, 24s; codifies law, 388; im-
peachment in, 367, 368; importance
in presidential campaign, 46; repre-
sented in cabinet, 87; congressmen,
124; local rights, 696.
New Zealand, relation to Crown, 485;
Constitution, 544, 545 ; governmental
institutions, 544, 545.
Nobility, titles forbidden, in United
States, 8.
.\oble State Bank v. Haskell, cited, 332.
Nominating agencies, 187-189; systems
changing, 49, 50, 357.
Nominating Convention, in United
States, 43, 49, 505 ; described, 190-
203 ; temporary, 205 ; arrangements
for, 209, 210; in States, 221; in
counties, 223.
Norman Conquest of England, 404, 412,
516; dynasty, 479, 492, 551, 552.
North, Frederick, Lord, advises
George IH, 431.
North American Act (1868), 540, 545.
North Carolina, and veto power, 370;
governor's council in, 384 ; on judicial
circuit, 244.
North Dakota, on judicial circuit, 245.
Norway, a democratic monarchy, 479,
649 ; merchant marine, 650 ; church
and state in, 496; democracy of, 651,
652.,
Notification, of presidential nomination,
199, 200.
Nullification, in South Carolina.
Nullifying power. See Judiciary and
Supreme Court.
Oaths, importance of, 271.
Office holding. See Appointments, Civil
service, and Removals.
Ogg, F. A., Govcrnmcnls of Europe, 402,
413, 420, 434, 436, 453. 458, 477. 490,
51S. 532, 553, 561. 569, 601, 613, 615,
620, 655.
Ohio, restrictions on, 309 ; on judicial
circuit, 244.
Ohio and Mississippi R. R. Company v.
Wheeler, cited, 259.
Oil carriers, regulations for, 110.
Oklahoma, State constitution, 345 ;
gubernatorial term, 3O3 ; on judicial
circuit, 245.
Oppenheim, L., Iiilcnialional Law, 655.
Opposition, party in I'^ngland, 458, 467,
468; orgiinization, 471; in Parlia-
ment, 400, 401, 408, -^73, 474; in
United States, 171-174.
Orangemen, in Ireland, 522.
Oratory, in nominating conventions, 199.
Ordainers, in reign of Edward II, 423.
(.)r(lers in council, authority of, 422.,
Ordinance power of president, 56; of
cabinet officers, 94, 95.
INDEX
745
Oregon, in election of 1876, 47 ; recall of
officials, 368; on judicial circuit, 245.
Orleanists, French dynasty, 553, 555,
558-
Osorno, Chilean town, 670.
Ostrogorski, M., Democracy and the
Organization of Political Parlies, 189,
201, 204, 218, 230, 515.
Ottoman Empire. See Turkish.
Panama Canal, constructed, 103.
Paper duties bill (i860), 463.
Parcels post, establishment of, 108.
Pardoning power, in France, 565 ; in
United States, 55, 63, 64; applications
for, 105 ; in the several States, 365,
366 ; board for, 366.
Paris, Louis PhiUppe Albert d'Orleans,
count of, pretender to French throne,
558.
Paris, Charlemagne's capital, 592 ; local
government of, 569; party organiza-
tion, 578.
Parish, use of term, 517.
Parish Councils Act (1894), 528.
Parke, Sir James, a life peer, 460.
Parliament :
Origin of term, 405 ; history of,
423-434, 552; influence, 19; suprem-
acy, 405, 406 ; relation to Crown, 488,
489 ; speech from the throne, 451, 454,
466, 472, 473, 489, 498; relation to
Prime Minister, 442, 443 ; relation to
Cabinet, 439 ; relation to EngHsh
church, 520; relation to judiciary, 266,
525 ; has no share in treaty-making,
482; controls local govenunent, 529;
controls taxation, 426 ; money bills,
456; bills classified, 454-457 ; govern-
ment bills, 454-456, 467 ; discussion,
455-458 ; closure, 457 ; vote of censure,
472, 473 ; joint committees, 454 ;
length of session, 451 ; privileges, 123 ;
party system in, 495, 498-504 ; whips,
474-476, 499, 513; relation to admin-
istration, 526; departmental secre-
taries, 439, 440. See also Cabinet,
House of Commons, House of Lords.
Parliament Act of 191 1, 452, 463, 464,
501.
Parliamentary type of government. See
Cabinet.
Pamell, Charles, parliamentary leader,
472.
Parole of prisoners, 366.
P.ARTY Politics :
In Canada, 541.
In England, 408, 412, 466, 468-470,
494. 495, 502, 503, 506, 507 ; defined,
491; history of, 491-496; relation to
Crown, 480-482, 487, 488 ; to Cabinet,
400, 401, 439; to religious bodies, 418,
419, 493, 494, 500; machinery for,
467-477, 498-504; S11-515; whips,
512-514; districts, 450; leaders, 442,
443. See also the several parties,
Conservative, Liberal, Whig, etc.
In France, 572-579.
In Germany, 610-613.
In Switzerland, 635, 636.
In United States, 29, 30, 303, 304 ;
relation to executive, 32, 35, 38, 40,
42, 43, 45, 46, 48, 59, 70, 78, 84, 86,
87 ; and the appointing power, 58,
60-62; relation to Senate, 129, 132,
133 ; to House of Representatives,
157, 171-174; to the judiciary, 277-
279, 383; in the States, 219-229, 350,
351, 357, 369-371 ; machinery for,-
177-190, 201, 202, 205-218; control
of, 229, 230; in contested elections,
120; caucus, 134-136; system criti-
cized, 229, 230; dynamic conditions,
281, 302.
Passports, from state department, 98.
Patent office, in Interior department, 57,
107.
Patents, regulated by Congress, 117;
commissioner of, 249 ; cases in federal
courts, 261, 264, 265.
Patriotism, in federal governments, 693,
694. See also the several nations.
Patronage, in England, 440; in United
States, 61, 217, 218, 225 ; in post
offices, 108; in States, 219, 369. See
also Appointments, and Civil service.
Paul V. Virginia, cited, 376.
Pennington, A. Stuart, The Argentine
Republic, 675, 688.
Pennsylvania, colonial legislature, 15;
senator from, 124; on judicial circuit,
244 ; judges in, 384.
Pension Office, administration of, 57,
107.
Personal rights in State courts, 379.
Petition of Right, source of English
constitution, 409.
Petty sessions, courts of, 527, 528.
Philadelphia, customs officers, loi.
Phillip Augustus, king of France, 552.
746
INDEX
Philippine Islands, engineering in, 103 ;
represented in nominating convention,
192 ; appeals from, 263 ; self-govern-
ment for, 697.
Pierce, Franklin, vetoes, 76.
Pigeonholing, of legislative proposals,
160.
Pike, Luke Owen, Coustitulional History
of lite House of Lords, 458.
Pindcney, Charles, in Constitutional
Convention, 81.
Pipe lines, regulations for, no.
Piracy, crime against federal laws, 117.
Pitt, William, in the House of Commons,
430, 433-
Pitt, William, the younger, as a party
leader, 495, 496 ; ministrj' of, 431, 433.
Plantagenets, dynasty of, 479, 552.
Platform, adopted by nominating con-
vention, 191, 197, 198, 205; manipu-
lations in framing, 202 ; relation to
Congressional Committee, 228.
Po River, headwaters, 614.
'Pocket veto, discussed, 77.
Poincarc, Raymond, French president,
559 ; How Prance is Governed, 559, 561,
564. 560, S7I. 590.
Police power, in United States Consti-
tution, 329-333.
Police system, in England, 438.
I'olitical philosophy, influence of, 20, 553.
Political Science Quarterly, cited, 220, 230,
268, 328.
Polk, James K., responsibility for Mexi-
can War, 65 ; vetoes, 76.
Polygamy, abolition of, 309. See also
Mormons.
Pomeroy, John N., Constitutional Law,
67.
Pondra and Pierre, Traiti pratique de
droit parliamenlairc, 581.
Poole, Reginald L., Exchequer in Twelfth
Century, 532.
Poor Law Act (1834), 528.
P«|)c, cTowns Charlemagne. 592 ; rela-
tion to Knglish church, 517.
I'opular will, source of free government,
3, 23, 24; in United States, 12; rela-
tion to presidency, 49, 50, 70, 76, 78,
88, 203 ; to State legislatures, 343, 351.
352. 3S4. 357 ; to .State governors, 362,
^(>^. 370. See also Public opinion.
Population, in United States, representa-
tion based on, 128, 130, 146, 149;
growth of, I.} 7.
Porter, Robert P., The Ten Republics
688.
Porto Rico, in nominating convention,
192 ; appeals from, 263.
Portugal, a minor state, 649 ; colonial
empire, 650 ; becomes a republic, 650.
Postal system, in Germany, 606; in
United States, 7, 117 ; laws for, 56, 265.
Postmaster-General, in England, 436; in
United States, 48, 97.
Post OfSce and Post Roads Committee,
in House of Representatives, 159.
Post Office department, in United States,
95, 97, 108.
Posts and Railways, Swiss department,
623.
Praetor, Roman administrative office,
584.
Prayer book of 1549, 520; of 1661, 520.
Prefects, in French administration, 566,
568-571.
Prerogative, theory of royal, 422, 423 ;
defeated, 432.
Presbyterians, settled in Ireland, 536;
in Scotland, 521.
President :
In Argentina, 675, 676, 678-682 ;
powers, 683.
In Chile, 664-666, 668-670.
In France, 556, 557, 563 ; term, 562 ;
powers, 537, 558, 563-565. 570; ordi-
nance power, 566.
In Switzerland, 624, 625, 640;
salary, 634.
In United States, prototype, 15;
methods of choosing, 14 ; nomination
methods, 190, 194; election, 38-53,
286, 304, 305; eligibility, 50; term,
SO, 51 ; salary, 52 ; national executive,
26, 99, 346; functions and powers,
31-37. 55-64. 102; veto power, 20,
7.3-77. 0°, 169, 170; guides foreign
relations, 64-69; relations to Cabinet,
82-84, 86, 88, 89, 98; to Senate, 88,
138-i.to; to legislation, 70-79, 93. 94.
118, 175; messages, 71, 72, 306;
assent to bills, 169; proclamation, 99;
relation to his party, 27, 84, 85, 225;
subject to impeachment, 141 ; re-
sp()nsii)iiity of, 35, 36, 397 ; relation to
popular will, 49, 50. 7°. 76, 78, 88, 203 ;
monarchical tendencies, 401 ; criticism
of, 36, 37.
I'rcsidcntial type of government, 444-
S05. 639, 663, 668, 687 ; compared with
INDEX
747
Cabinet type, 395-397, 444-446, 505,
S06; compared with monarchical
type, 488.
Presidential Succession Law, 48.
Press, influence in England, 437; in
France, 579; in United States, 215;
freedom of, 285.
Primaries, in Prussia, 597 ; in United
States, direct, 192-194, 203, 209, 2S8,
289; for presidential nomination, 49,
50, 194, 203; criticized, 203, 204; in
local nominations, 221, 223.
Prime Minister, in England, 31, 512;
creation of office, 429; influence,
442, 443, 466; represents party,
480 ; popular choice of, 466 ; relation
to Cabinet, 395, 436, 437, 476; to
House of Commons, 499; to Church
of England, 520; resignation, 436. In
France, 563, 564, 567, 575.
Prince consort, prevents war with United
States, 482.
Prisons, supervision of, 105.
Private law, in State courts, 379.
Privy Council, beginnings of, 423, 424,
524 ; composition and functions, 435 ;
judicial functions, 16, 405, 520, 526,
530 ; veto power, 692 ; relation to
Cabinet, 424, 429; decline of impor-
tance, 427-429; lord president, 435.
Privy Seal, lord, position of, 436.
Probate and Divorce, English court of,
530-532.
Progressive party, organized, 209 ; posi-
tion on amendments, 290.
Prohibitions, established by Constitu-
tion, 8.
Proportional Representation, in Switzer-
land, 637 ; on United States senatorial
committee, 134.
Property and pohce power, 331, 332;
in State courts, 379.
Protection by tariff, 299.
Protestantism, in England, 518, 519,
552; in Germany, 594. See also
Church.
Provinces in Argentina, 672-675, 677,
679, 682, 683, 684; in Canada, 691,
692.
Provisions of Oxford, and English consti-
tution, 399, 423, S18.
Prussia, rise of, 594 ; reform in, 595 ;
Napoleon's relation to, 595, 596 ;
reaction in, 596, 606; constitution
granted, 597 ; king becomes German
emperor, 695 ; relation to Empire, 599,
602-608, 695, 696; opposed by its
people, 601. See also Germany.
Public debt, administration of, 112.
Sec also Finance.
Public domain, in New Zealand, 54s ;
in United States, 106, 373. See also
Lands.
Public health, in Chile, 670; in United
States, 102, 374.
Public hearings, at committee meetings,
161, 162.
Public Instruction, Superintendent of,
373. See also Education.
Public Instruction department, in French
cabinet, 567.
Public opinion, in free government, 659,
664; influence of, 78, 122, 125, 162,
370; control of, 30, 31. See also
Popular will.
Public Utilities, control, in Switzerland,
621; in United States, 358; supervi-
sion of, 374; state ownership of, 358.
Public Welfare, promoted by police
power, 330, 331, 332-
Public Works department, in Argentina,
681 ; in France, 567.
Publicity, value of, 136; in election
campaigns, 214, 215; for committee
meetings, 161.
Punic War, in Roman times, 585.
Puritans, rise of, 494 ; settle in Ireland,
536; a political party, 519.
Quarantine, imder police power, 329.
Quarter Sessions, court of, 417, 420, 527,
528.
Quesada, Ernesto, cited, 684-686.
Racial unity and free governments, 659,
660.
Radical Party:
In England. See Liberal party.
In France, 573.
In Switzerland, 636, 637.
See also Social Democrats and So-
cialists.
Railways, in Argentina, 684, 685 ; in
United States, effect on centralization,
n, 312; on interstate commerce,
299, 300; federal regulation, 109-111 ;
strike on, 57 ; public ownership of, 635.
Randolph, John, uses term cabinet, 82.
Rates, of public carriers, regiJated,
748
INDEX
Ray, P. Osman, An Introdiution to
Political Parties aitd Practical Politics,
IQ5, 204, 216, 218, 230, 360.
Rebates, granted by railways, log ; pro-
hibited, 110.
Recall, of public officers, 358, 368.
Reclamation Ser\-ice, in Interior Depart-
ment, 106.
Recorders, duties of, 52g.
Redlich, Josef, Procedure of the House of
Commons, 458.
Reed, Thomas B., speaker, 165, 166.
Referendum, proposed in England, 502 ;
in Switzerland, 619, 626, 632 ; in
United States, 278, 354, 355, 358.
See also Initiative.
Reform Act of 1832, 479; results of, 432,
433 ; of 1834, 496.
Reformation, efifect on Germany, 594 ;
does not entail disestablishment, 518.
Registration, for suffrage, 224; falsified,
229.
Reichstag, in Germany, 696; composi-
tion, 603, 609; F>owers, 609, 610, 612;
parties in, 610-613.
Reinsch, Paul S., American Legislatures
and Legislative Methods, 144, 150, 176,
357. 360: "Parliamentary Govern-
ment in Chile," 667, 688; Readings on
American Federal Government, 66, 80,
IIS, 117, 118, 144, 176, 280; On
American Stale Governments, 360, 379,
389. 391-
Religious bodies in England, relation to
parties, 418, 419; economic relations,
493; relations to Constitution, 516-
S2 2. See also Church.
Religious freedom, in United States, 8.
Religious revivals in England, 493.
Removals, in Chile, 669; in United
States, 62, 63, 83 ; from civil service,
113 ; from State offices, 368. See also
Civil service and Spf)ils system.
Representation, in English Parliament,
448, 449; in United States, 24; theory
of, I2S, 126; unit of, 147; in State
central committee, 220.
Republic, term defined, 23, 24; in
France, 3, SS&-SS9. 562 ; in United
States, i-is, 23-30. See also South
America.
Republican parly, elements, 86; prin
ciples, 185; gerrymander, 150; con-
test with Johnson, 225 ; in nominating
conventions, igs, 193, 195, 197; special
conventions, 208, 210, 211 ; in election
campaign, 215, 218; on congressional
committee, 226, 227; insurgency
among, 228.
Reser\'ed powers, of States, in United
States, 6, 7, 333. See also Inherent
fxjwers.
Responsibility :
In presidential system, 27, 35, 36,
639, 640; in cabinet system, 82, 83,
89, 90.
In .\rgentina, 681.
In Chile, 665, 666.
In England, 422, 438, 439, 467.
In England and Switzerland, com-
pared, 639-641.
In France, 556, 558, 560, 562-564,
566-573. 576.
In Prussia, 599, 600.
In Switzerland, 639-641.
In United States, 35, 36, 397.
Revenue. See Customs and Internal
revenue.
Revolution of 1688, in England, 427, 478,
552.
Revolution of 1830, in Switzerland, 615.
Revolution of 1848, in Europe, 596, 597,
612; in Switzerland, 615.
Revolution, in France. See French
Revolution.
Rhine River, headwaters, 614.
Rhode Island, colonial legislature, 15;
merges into State, 16, 17; legislative
salaries, 349; rights of, 696; judges
in, 383, 384; on judicial circuit, 244.
Rhone River, head waters, 614.
Richard II, king of ICngland, 423.
Richman, Julia, Citizenship of the United
States, 328.
Riksdag, in Sweden, 652.
Riots, executive action against, 57, 365.
Rivers and Harbors Committee, of
House of Representatives, 159.
Roads, in Swi.ss government, 618; in
United Stales, 358, 374.
Robert, Duke of Normandy, 415.
Roberts, Rrigham H., representative
from Utah, i 20.
Roman Empire, comix)ncnt parts, 551 ;
growth, 583; citizenshii) in, 584, 585;
i()rru|)tion in, 649, 653.
Roman Law :
Origin of, 583, 584 ; growth, 592-
594, 605, 649; compared with Com-
mon Law, 585-588.
INDEX
749
Roman Law — Continued.
Influence on modern governments,
386, 582-591, 6S7 ; countries using,
375-
In France, 551, 589-591. 595, 629,
631.
In Switzerland, 625, 629.
Romansch language, in Switzerland, 614.
Rome, conquered by Charlemagne, 592,
593 ; while a small state, 649.
Romford, largest English constituency,
449-
Roosevelt, Theodore, messages, 72 ;
vetoes, 76; cabinet, 87; candidate
for third term, 51.
Roseberj', Archibald, Lord Randolph
Churchill, 515.
Ross, Edward A., South of Panama, 659,
660, 670, 684, 686, 688.
Roundheads, precursors of Whigs, 494.
Rousseau, Jean Jacques, political phi-
losopher, 20, 553.
Rousseau, Waldeck, French leader, 573.
Royal family, in England, 482, 486-488.
See also Crown.
Royalists, in France, 556-559, 563, 573,
578. 580.
Rules, of nominating conventions, 197 ;
of House of Representatives, 122, 164-
167; of State legislatures, 350-352.
Rules Committee, in House of Repre-
sentatives, 157, 159.
Russia, French alliance with, 565 ; war
with Turkey, 654; constitutional
change in, 478; a European power,
649.
St. Bartholomew, massacre of, 552.
"Salary grab," in 1873, 122.
Salisbury, Robert A. T. Gascoyne Cecil,
marquis of, leader of Conserv'atives,
436, 442.
Santiago, Chilian capital, 670.
Savoy, causes trouble between France
and Switzerland, 635.
Saxons, invade England, 412, 551 ; kings,
479. Sec also Anglo-Saxons.
Saxony, and the German Empire, 602.
Schleswig-Holstein, taken from Den-
mark, 598, 652.
Schwytz, Swiss canton, 615.
Scotland, history', 494, 521, 522, 534;
relations to English government, 534,
535. 539 ; parliamentary representa-
tion, 448, 450, 534, 535; peers, 534;
secretary for, 436; bills, 455; judi-
ciary-, 534, 582; appeals, 530; lord
advocate, 535.
Scrutin de liste, in France, 557, 570.
Secession, right of, 11.
Second chamber, types of, 501, 502. See
also Bicameral legislatures.
Secretaries. Sec the several depart-
ments.
Sectional interests, in U. S., 87, 129, 130.
Seignobos, Charles, A Political History
of Contemporary Europe, 478, 561, 580,
596, 598, 613, 620, 655.
Selby, Viscount. Sec Gully.
Senate :
In Argentina, 677-679, 682.
In French Republic, 556-559, 570;
described, 567, 577, 578; ministerial
access to, 567 ; judicial function, 577,
578.
In United States, prototype, 16;
mi.xed powers, 26; coordinate with
president, 88, 137, 138; confirms
appointments, 59-62, 112, 305, 306;
consents to removals, 63 ; treaty-
making power, 34, 35, 60, 64, 66-69,
138-140; counts electoral votes, 40,
45 ; relation to Cabinet, 83 ; composi-
tion, 127, 284; organization, 118, 130,
132-134; rules, 122; freedom of
debate, 136, 137, 142, 166; president,
52; original function, 128, 130, 138;
right of amendment, 168, 170; im-
portance, 141-144, 175, 311.
In States of United States, 367, 368,
371-
Senatorial courtesy, in appointments,
139, 140; described, 60, 61.
Senators, qualifications, 127; election,
119, 125, 131, 219, 284, 288, 289;
former election method, 130, 131, 137;
in Cabinet, 87, 88 ; on committee, 227 ;
influence and prestige, 137, 142, 143,
311; expulsion of, 120, 121.
Seniority rule in Senate committees, 133 ;
in House committees, 154.
Separation of powers, theory, 56, 234,
24s, 555-
In England. 523.
In United States Constitution, 24-
26, 117, 396, 398, 399, 444-446, 477;
why established, 526, 527; relation to
parties, 181-183; exceptions to, 127;
criticism of, 27, 626, 627 ; in State
governments, 369.
75°
INDEX
Serfs, emancipation of, sgg.
Sen-ia, war with Bulgaria. O54.
Seward. William H., candidate for nomi-
nation, 210.
Shadow Cabinet, place in constitutional
system, 432, 433; changes to Cabinet,
437-
Shaftsbur>', Anthony Ashley Cooper,
earl of. 404.
Shaw, Albert, Municipal Government in
Continental Europe, 571.
Shepherd, William R., Latin America,
683, 688.
Sherman law of 1890, 300, 301.
Ship money, illegal tax, 424.
Slaughter House Cases, cited, 327.
Slave trade, organizations to abolish, 506.
Slavery, controversy over, 1 1 ; compro-
mise in Constitution, 283 ; abolition,
37, 287, 319. 328.
Slavs, in Austria, 594.
Smith, J. Allen, Tlie Spirit of American
Government, 30, 189, 280, 291, 293, 294.
Smoot, Reed, Utah Senator, 120, 211.
.Smuggling, defined, loi.
Social control of property, 331, 332.
Social Democrats, in Germany, 600, 611,
612; in Switzerland, 636, 637.
Social welfare legislation, in Argentina,
684 ; in United States, 358, 359.
Socialists, in Argentina, 683, 684; in
France, 573, 579. 637 ; in Germany,
610-612,637; in Italy, 637; in Swit-
zerland, 636-638.
Sohm, Rudolph, Institutes of Roman Law,
583. 58s. syi. 601.
Solicitor-General, duties, 104, 105.
South Africa, forms federal union, 547,
548, 692, 693 ; relation to C!rown, 485.
See also Australia and South Africa ;
Canada and South Africa.
South America, federal experiments in,
656-658; retardation, 658-6O1 ; prog-
ress, 66i, 662; departure from con-
stitutional forms, 682 ; system of law,
582. See also Argentina, and ("hile.
South Carolina, Slate constitutions, 344 ;
impeachment offenses, 36S; nullilHa-
tion in, 10; judges, 383; on judicial
circuit, 244; in election of 1H76, 47.
South Dakota, on judicial circuit, 245.
Sovereignly, in federal government, 3,
6; under Constitution, 308, 309, 315;
divided, 4, 330.
Sfjain, a minor state, O49; rcteul devel-
opments in, 650; South American
relations, 658, 661, 672.
Speaker :
In House of Commons, 155, 451, 452.
In House of Representatives, 165,
168, 169; choice of, 153, 154, 173;
party alliance, 171; influence, 147,
154-157. 174- .504, 305-
In State legislatures, 350.
Spoils system, in Switzerland, 634, 635;
in United States, 113, 114. See also
Civil service.
Squiarchy, meaning of term, 528.
"Stalwarts," control congressional com-
mittee, 22S.
Stan wood, Edward, A History of the
Presidency, 54.
Star Chamber, in English judiciarj-, 425,
524-
State Central Committee, discussed, 220-
222.
State department, in president's cabinet,
65, 89 ; established, 97 ; duties, 97-99,
169, 255 ; secretary of, 48, 65 ; in
several States, 372. Sec also Foreign
Affairs. "
State of siege, in Argentina, 675, 676,
681.
Staten Island, in Argentina, 676.
States :
In Australia, 692.
In United States, emerge from col-
onies, 16; independence of, J3 ; rights,
5-7, 9-11, 322; inherent powers, 251,
262, 307, 308, 342, 379; equal sena-
torial representation, 128, 129; cen-
tralization weakens prestige, 11, 310-
314, 318; later states artificial, 130;
choose presidential electors, 40, 44 ;
vote for president, 45-47; regulate
suffrage, 120, 148, 319-322; regulate
citizenship, 322-328; regulate elec-
tions, 338; congressional districting in,
149, 151; administration in, 377;
legislature, 285, 340-360; interpreted
by courts, 272, 273 ; judiciary of, 379-
391; criticized, 273, 277; relation to
federal judiciary, 257, 258, 260, 263 ;
polirc power, 329-333; control local
government, 333-339 ; interrelations,
314-316, 321; relation to federal
government, 5-7, 307-31O1 316-318;
decline of prestige, 310-314.
Statesman's Yearbook, cited, 460.
Statutory law, ia Slate courts, 387.
INDEX
751
Stearns v. Minnesota, cited, 310.
Stein, Ileinrich Friedrich Karl, baron
von, reforms in Germany, sgs-
Stephen, influence of church in reign of,
517-
Strict Construction. See Constitution :
United States.
Strike of railway employees, 57.
Stuarts, English dynasty, 479, 552. See
also James I, Charles I, Charles II, and
James II.
Stubbs, William, Constitutional History
of England, 412, 414, 420, 421, 424.
Sturges V. Crowninshield, cited, 8.
Subcommittees, in legislative work, 159.
Subdelegates, in Chile, 66g.
Subprefects, in French administrative
system, 568.
Suffrage :
In England, 496.
In France, 554. 557, 568, 569.
In Germany, 616. See also Prussia,
below.
In Norway, 651.
In Prussia, 597, 599, 605, 612.
In Switzerland, 624, 627.
In United States, 120, 148, 309, 319-
328. See also Woman's suffrage.
Superior Courts, in States, 382.
Supreme Court :
In Argentina, 679, 681-683.
Of Judicature in England, 530, 531.
In United States, established by
Constitution, 231, 233, 236, 250; the
ultimate authority, 1 1 ; interprets the
Constitution, 12, 23, 27, 116, 262, 263,
266, 268, 296-298, 300-302 ; nullifies
legislation, 64, 68, 69, 245, 266-270,
276, 278; establishment, 231, 233, 236,
241, 295; changes in, 238-240; pro-
cedure, 241-244; original jurisdiction,
254-256, 260, 261 ; judges, 55, 59, 61 ;
rules, 273-275; appeals to, iii, 248,
262-264; decisions cited, 105, 258,
288, 309, 310, 314, 317, 322, 323, 326,
329, 330; relation to Congress, 117,
260, 261 ; upholds federal power, 6, 10,
300, 301; criticism of, 237, 244, 271-
273, 276, 277, 279, 301, 302 : respect for,
244. Of the several States, 381-385-
Sweden, a minor state, 649 ; govern-
ment, 651-653.
Switzerland:
\ minor state, 649 ; formerly a con-
federation, 689 ; a federal government.
12; Constitution, 54s, 614-619, 627;
early history, 614-619; federal insti-
tutions, 621-631 ; democracy, 614-
616, 628-632, 639, 644; parties, 491,
635-638; patriotism, 483, 484; church
, policy, 496 ; direct legislation, 355, 619,
626, 632, 643 ; public service, 486, 487.
Switzerland and United Stales:
democracy compared, 616-619, 629-
645-
judiciary compared, 630, 631.
legislatures compared, 641-643.
presidency compared, 624, 639, 640.
separation of powers compared, 626,
627, 629.
See also England and Switzerland;
France and Switzerland.
Syndicalism, in France, 579.
"Tacking," a parliamentary device, 463.
Taft, William Howard, cabinet, 124;
vetoes, 76 ; cited, 389.
Tarifif, for protection, 299 ; a party issue,
469 ; in Congress, 10, 135 ; of 1913, 73 ;
interpreted by courts, 248, 265.
Taxation :
In Argentina, 678.
In Chile, 670.
In England, 426.
In France, 569.
In Germany, 605.
In United States, under federal con-
trol, 7, 9, 317, 318; controlled by
Congress, 116, 137; must be uniform,
117; reform, 358; collection of, 337,
338; supervision of, 374; and Su-
preme Court, 288. See also Finance
and Income taxation.
Tax Commission, centralizes supervision,
338.
Taylor, Zachary, uses no vetoes, 76.
Temple, Rt. Hon. Sir Richard, Life in
Parliament, 458.
Temple, Sir William, English statesman,
399-
Temporary chairman, of National Con-
vention, 195, 211.
Tennessee, senator from, 141 ; on judicial
circuit, 244.
Tenure of Office Act, 62.
Territories, under control of Congress,
iiS, 258, 310.
Texas, on judicial circuit, 244 ; United
States courts in, 245 ; legislative sal-
aries, 349 ; local rights, 696.
752
INDEX
Teutonic tribes, invasions, 551 ; conquer
Roman Empire, 592. See also Ger-
many and Germans.
Tiedeman, C. G., The Unuritlen Con-
stitution of the United Stales, 306.
Tierra del Fuego, in Argentina, 676.
Thiers, Adolphe, president of France, 556,
562.
Third term for President, 51.
Thirty-nine Articles, in English church,
520.
Thirty Years' War, in Germany, 594.
Thomas, David Y., "Law of Impeach-
ment in the United States," 141.
Tilden, Samuel, defeat, 47.
Tobacco, tax on, loi.
Todd, Alpheas, Parliamentary Govern-
ment in England, 458 ; Parliamentary
Government in British Colonies, 549.
Toleration, in Switzerland, 614.
Tory party in England, 179, 428, 443,
428, 506; origin of term, 494; com-
position of, 419, 495, 496; and cabinet
system, 431 ; democrac-y of, 473 ; local
government policy, 420. See also
Conservative party.
Tout, Thomas F., Political History of
England, 539.
Trade, Board of, in England, 435. See
also Commerce and Interstate com-
merce.
Trades unionism in France, 579. See also
Labor.
Tradesmarks, under federal jurisdiction,
265.
Transportation, in Australia, 685. See
also Interstate commerce and Rail-
ways.
Treasfjn, punishment for, 231.
Treasurer, lord high, in I'^ngland, 43O;
in States of United Stales, 371, 372,
307-
Trkasurv :
In England, 441, 499; first lord of,
436, 437. 443.
In United Slates, secretary, 48;
department, 95, 97, 99-102.
Thkatiks :
Franco-German (1871), 556.
Spanish-American (1898), 124.
Weslijhalia (1648), 594.
Trkaty-making:
In ArKcntina, 682.
In I'^ngland, 482.
In !■ ranee, 505.
In Germany, 607.
In Switzerland, 642.
In United States, 34, 55, 64-68, 91,
98; confirmation by Senate, 34, 35,
60, 64, O7, 138-140; custodianship,
99 ; obligations of, 56, 69 ; enforce-
ment, 251, 252; rights arising from,
233 ; naturalization regulated by, 325 ;
interpreted by Supreme Court, 262.
Trevelyan, G. M., England in the Time
of Wyclijfe, 522; England in the Age
of Walpolc, 515; England under the
Stuarts, 522.
Tricolor, in France, 563.
Trimmers, English party, 428.
Trust cases, in federal courts, 265.
Trusts. See Corporations.
Tudor dynasty, in England, 413, 479,
484, 492.
Turkish empire, dismembered, 649, 653 ;
despotism in, 653 ; war with Russia,
654-
Turner, H. G., First Decade of the Aus-
tralian Commonwealth, 547, 549.
Tyler, John, vetoes, 76.
Unanimous verdict, in jury trials, 389.
Underwood-Simmons tariff bill, 135.
Unicameral legislature, proposed, 354,
355-
Uniformity, tendency to, in State legis-
lation, 340-342, 358, 359.
Union of South Africa, see South Africa.
Unit rule in German Bundesralh, 602 ;
in Democratic nominating convention,
193, 199-
Unitkd States:
Colonial period, 15, 16, 25, 26, 34,
I7Q. 341.343, 690; severed from Eng-
land, 3, 431 ; not a confederation, 11 ;
federal government, 3, 4, 2^!,, 24, 307-
310; independent <lcveloi)menl, 560;
influence on South America, O61, 6O3,
008, 670; patriotic sentiment, in, 489;
Statutes at Large, cited, 240. See also
Australia and United States, Canada
and United States, England ami
United States, France and United
States, Switzerland and United States,
also the several inslituticjns of govern-
ment, i.e. (■al)inel. Constitution, etc.
United States v. Wong Kim Ark, cited,
324-
Unlerwalden, Swiss canton, 615.
Uri, Swiss canton, 615.
INDEX
753
Utah, senator from, 120; restrictions
imposed on, 245 ; on judicial circuit,
245-
Van Dyne, Frederick, Citizenship of (he
United Slates, 328.
Vaud, Swiss canton, 626.
Vermont, judges in, 383-385 ; legislative
salaries, SA9 I on judicial circuit, 244.
Versailles, National Assembly at, 562 ;
German empire proclaimed at, 599.
Veto Power :
In Argentina, 678.
In Canada, 542, 543, 692.
In England, 76.
In France, 557, SS8.
In Germany, 609.
In United States, in colonial times,
IS ; uses of, 306 ; eSects, 26, 29 ; vested
in president, 55, 71, 73-77. 9°. 169,
170; in governors of States, 370.
Vice president, election of, 39, 40 ; office,
52, S3; presides in Senate, 132.
Victoria, queen of England, 480, 481 ;
made empress of India, 484 ; influence
during United States Civil War, 4S2 ;
Letters, cited, 490.
Vincent, John M., Government in Switzer-
land, 620, 710.
Virginia, as a colony, 690 ; state consti-
tutions, 344 ; judges in, 383 ; on
judicial circuit, 244 ; and Constitu-
tional Convention, 291.
Virginia v. Tennessee, cited, 316.
Voltaire, Franjois M. A., political phi-
losopher, 553.
Wakeman, Henry 0., History of Church
of England, 516, 522.
Wales, Prince of, 533.
Wales, conciliated by Edward I, 454 ;
relation to England, 533, 539 ; repre-
sentation in Parliament, 448-450 ;
national characteristics, 533 ; church
historj', 521, 522 ; system of law, 582.
W'alpole, Robert, English statesman, 429,
4.50. 4,53-
Walpole, Sir Spencer, England since 181 5,
434, 515-
War, must be declared by Congress, 64,
65,117; directed by president, 57;
secretarj' for, in England, 436; in
United States, 48. See also Wars.
War and Marine department in Chile,
665.
3C
War Department :
In Argentina, 681.
In France, 567.
In United States, 97, 102, 103.
Ward v. Maryland, cited, 327.
Wars :
American Revolution, 4.
Civil, in United States, 10, 11, 64,
107, 311; presidency during, 31, 32;
England's relation to, 482 ; constitu-
tional amendments follow, 287, 319;
expansion since, 109.
Franco-Prussian, 599.
Mexican, 65.
Roses (of the), 418, 423, 495.
Spanish- American, 32.
1812 (of), 422.
1914 (of), 612, 613.
Washington, George, in Constitutional
Convention, 282 ; election, 38, 41 ;
administration, 186; addresses Con-
gress, 71, 306; vetoes, 75, 76; de-
clines third term, 180; retires, 42,
51; a symbol of unity, 484; Farewell
Address, 178, 179, 181, 691.
Washington (D. C), capital, 40, 45, 112,
113 ; federal courts at, 248.
W^ashington (state), on judicial circuit,
245-
Watson, R. Spence, National Liberal
Federation, 515.
Ways and Means Committee, of House
of Commons, 452, 453, 476; of House
of Representatives, 157-159, 162, 174.
Webster, Daniel, cited, 271.
Weights and Measures, standards, 117.
Wensleydale case, 460.
Westminster, Palace of, 447.
West Point, military academy at, 102.
West Saxon dynasty, in English history,
404, 516.
West Virginia, coimty courts in, 381 ; on
judicial circuit, 244.
Whig Party :
In England, origin of term, 494;
policy, 179, 419, 428, 439, 506, 552;
composition of, 495, 496.
In United States, 185, 191.
White, Edward D., justice of Supreme
Court, 61.
White House, expenses of, 52.
White slaver>', act to control, 300.
Whitney v. Robertson, cited, 69.
Wilkes, John, mob leader, 495.
William I, king of England, 415, 517.
754
INDEX
523 ; separates church from secular
courts, 516, 517.
William II. king of England, 414, 415.
William III, accession to throne, 428,
433. 510. 5^2, 536.
William IV, king of England, 470 ;
creates peers, 500.
William I of Germany, as regent, 598;
king of Prussia, 598; Emperor of
Germany, 599, 606.
William II of Germany, idea of divine
right, 607 ; telegram to Kruger, 482.
Willoughby, W. W., Constitutional Law
in United States, 254, 258-260, 271-
273, 280, 310, 311, 316; Supreme
Court, 280; The American Constitu-
tional System, 310, 311, 316.
Wilson, Woodrow, president of United
States, 13, 194; calls special session
of Congress, 135 ; addresses Congress,
73, 306; cited, 23, 32, 129, 130, 143,
159; Constitutional Government in (he
United States, 7, 10, 13, 32, 54, 79, 130,
149, 156, 159, 160, 166, 167, 176, 189,
27s, 276, 280, 303; The State, 402,
571. S9I, 601, 613, 620.
Winchester, Bishop of, sits in House of
Lords, 460.
Winchester, Boyd, The Swiss Republic,
620.
Wisconsin, on judicial circuit, 244; new
legislature in, 221, 203, 342; commis-
sions, 375 ; legislative reference library,
353; senator, 291.
Wisconsin v. Pelican Insurance Company,
cited, 315.
Witan, in relation to Curia Regis, 421.
Woman, status of alien, 323.
Woman's suSrage in England, 470, 482 ;
in New Zealand, 545 ; in Norway, 651 ;
in United States, 320.
Woodbum, James A., Political Patries
and Party Problems in the United
States, 189, 193, 197, 203, 213, 218,
230; The American Republic, 13, 30,
54, 75, 80, 144, 176, 181.
Workingmen's Compensation laws, 358,
374-
W'orship and Colonization, department
in Chile, 665.
Writs of Error, in Supreme Court, 243.
Wyclif, John, religious revival of, 518;
political value of, 493.
W'yoming, on judicial circuit, 245.
Wiirtemburg, and the German empire,
602, 605.
York, Archbishop of, 460, 519; synod,
519.
Young, James T., The New American
Government and its Work, 80, 115, 144,
176, 280, 339, 379.
Zurich, Socialists in, 637.
Printed in the United States of America.
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