•-i- ' s 1 ■^ " ^-Q. .^^0*^ ^^. .i^^ 0- v^ \^ •?:/. I 0' \ Mjk "o V -^' -^ x^-t; .^'^ o' .^^^ .<^' :^.^' c^ -'u u n \ -s, M *^ 1. '/• ' iv ft > -\ ,1b ^ lV e--, * .•> . '> V, . 1 >' : '^ 0^ "■ " ^ ■J^;!^' \> ^ V * '^-^^. ^. .A^ *-((<; AMERICAN CITIZEN SERIES. EDITED BY ALBERT BUSHNELL HART, LL.D. ACTUAL GOVERNMENT ALBERT BUSHNELL HART. 3/ AMERICAN CITIZEN SERIES Edited by Albert Bushnell Hart, LL.D. Outline of Practical Sociology ; with Special Reference to American Conditions. By Carroll D. Wright, President of Clark College. With Maps and Diagrams. [_New Edition preparing.'] Actual Govenmient as Applied under American Conditions. By Albert Bushnell Hart, LL.D., Eaton Professor of the Science of Government in Harvard University. With 6 Colored Maps and 1 1 other Illustrations and Diagrams. Crown 8vo. Financial History of the United States. By Davis R. Dewey, Ph.D., LL.D., Professor of Eco- nomics and Statistics in the Massachusetts Institute of Technology. With Diagrams. Crown 8vo. Constitutional Law in the United States. By Emlin McClain, LL.D., sometime Lecturer on Consti- tutional Law at the State University of Iowa. Crown 8vo. Principles of Economics; with Special Reference to American Conditions. By Edwin R. A. Seligman, Ph.D., LL.D., McVickar Professor of Political Economy in Columbia University. With 6 Colored and 22 other Diagrams. Crown Svo. Organized Democracy; An Introduction to the Study of American Politics. By Frederick A. Cleveland, Ph.D., LL.D. Crown Svo. Public Opinion and Popular Government. By A. Lawrence Lowell. President of Harvard Uni- versity. Crown Svo. LONGMANS, GREEN, & CO.: NEW YORK 4 Oe.s 'SmcvicHtx CtttjfiT ^trie^. Actual Government AS APPLIED UNDER AMERICAN CONDITIONS. BY ALBERT BUSHNELL HART, LL.D., ^rofeSBioc of id of the Several States (U. S. Geological Survey, Bulletins, No. 226, 1904); Cyclop, of Am. Govt. (1914), Arts, on Boundaries, and states by name; W. F. WiUcox, Report on Boundaries (U. S. Twelfth Census, Bulletins, No. 74, 1901). Physical and Political Maps: The best physical maps are pub- lished by the Geological Survey of the United States in detailed sheets and small contour maps. A good wall map is furnished by the Super- intendent of Documents for one dollar. A. B. Hart, Wall Maps of Am. Hist. (19 maps, 1918); Cyclop, of Am. Govt., as above. Small political maps are found in most of the school histories; in A. B. Hart, Epoch Maps (rev. ed., 19 10); about 150 in The American Nation series (28 vols. 1903-1918). Geographical Characteristics: L. Farrand, Basis of Am. Hist. (1904), chs. i-iv; A. P. Brigham, Geographic Influences in Am. Hist. (1903); E. C. Semple, Am. Hist, aiui its Geographical Conditions (1903); Cyclop, of Am: Govt. (1914), Arts, on Am. Govt, and Geography; Area of the. U.S.; People and Social Conditions; Physics and Politics ; Physi- ography of No. Am.; Resources of No. Am.; N. S. Shaler, Nature and Man in America (1891); R. G. Thwaites, The Colonies (rev. ed., 1910); Bulletins of the Thirteenth Census (1910-); geographical and descrip- tive articles in National Geographical Magazine, and Btdletin of the Am. Geographical Society. The People and their Social Condition: J. Bryce, Am. Commmi- wealth (ed. 1910), II, chs. xci-xciii, pt. vi; C. D. Wright, Practical 3 4 Fundamental Ideals. [§ 2 Sociology (1909), especially chs. ii-iv, vii, viii; E. E. Sparks, Expansion of the Am. People (1900); A. M. Low, Am. People (1909-1911); J. F. Muirhead, America the Land of Contrasts (1902); Cyclop, of Am. Govt. (1914), Art. on Frontier in Am. Development; L. Farrand, Basis of Am. Hist. (1904), chs. vi-xvii; A. B. Hart, National Ideals (1907), ch. x. — Sources: A. B. Hart, Contemporaries (1897-1901), H, §§80-108; in, §§ 10-36, 151-157; IV, §§ 75-83, 203-209. Population and Immigration: F. B. Dexter, Estimates of Popula- tion in the Am. Colonies (1887); recent censuses; R. Mayo-Smith, £wi- gration and Immigration (1890); Cyclop, of Am. Govt. (1914), Arts, on Census ; Foreign Elements in the U. S. ; Immigration ; Population of the U. S.; E. R. A. Seligman, Economics (1914), §§ 21-26; E. E. Sparks, National Development (1907), ch. ii. See also refs. to ch. xxiv below. Race Questions: Am. Race Problems (Am. Acad. Pol. Sci., Annals, XVIII, 7-178, 1901); J. R. Commons, Races and Immigrants (1907), ch. iii; P. F. Hall, Immigration (2d ed., 1908), ch. xv; W. E. B. DuBois, Souls of Black Folk (1903); E. E. Sparks, National Development (1907), chs. xiv, xvi; A. B. Hart, National Ideals (1907), ch. iv; A. B. Hart, Southern South (1910); G. T. Stephenson, Race Distinctions (1910); J. M. Mecklin, Democracy and Race Friction (1914); M. R. Coolidge, Chinese Immigration (1909); J. Bryce, Am. Commonwealth (ed. 1910), II, chs. xciv, xcv. 2. The Land and its Resources. The purpose of this book is to account for and to describe the vast organism of American government. Without attempt- ing to define " the state " in general, or to explain the theory of the state, we shall undertake to make clear the nature of that community to which we give the name " the United States," including not only the national authority centred at Washington, but also the governments of the constituent states and their creations, the local governments. The fundamental basis of this study will be the conception that all forms of government, and all functions of government, within the United States, are factors of one great political system, expressed partly in traditional conceptions of democracy, partly in the federal constitution, partly in the state constitutions, partly in the charters or other acts of incorporation of localities, counties, cities, and towns, partly in the statutes of the nation, states, and local governments ; quite as much in the habitual practice PHYSICAL FEATURES CONTINENTAL MASS. l.)t>rttuae MO' 'West from Greenwich § 2] The Land and its Resources. 5 of all the various agencies of the government, as shown by what they actually do. To understand our country we must know its physical con- ditions, and especially the territorial basis of national life. Not reckoning our insular possessions and dependencies, the United States occupies a region stretching from the Atlantic Ocean to the Pacific, and from the 49th parallel, north latitude, to the 25th parallel on the south. The area of this continental block is 2,970,230 square miles; Alaska and the insular pos- sessions bring it up to 3,690,822 square miles. This area is divided into four north-to-south belts : first, the Atlantic slope, from the ocean to the Appalachian range, including New England and most of the Middle and South Atlantic states ; second, the Mississippi Valley, extending from Western New York to Idaho and Colorado, and practically including the upper Great Lakes ; third, the interior basin from the crest of the Rockies to the Sierra Nevadas ; fourth, the Pacific slope, chiefly the states of California, Oregon, and Washington. The Great Basin is lofty, ill watered, and mostly sterile ; the two coast regions are well watered, well wooded, and abound in minerals ; and the Mississippi Valley is an area of fertile and easily accessible land, hardly equalled in the whole world. From the Atlantic to the Rockies the United States is flanked north, east, and south by tide water or navigable lakes ; it has splendid harbors looking eastward ; and the mountains west- ward present no obstacle to the building of railroads, which connect with ports on the Pacific. In climate and in products the United States is a strong, rich, and abundant land. From the snow-clothed summits of the Sierras to the sub-tropical regions of Florida and the Mississippi delta, the country abounds in food and in materi- als for clothing and house- building. It is also a country rich in mineral resources. Almost unsurpassed coal fields, vast reservoirs of oil, abundant mines of gold, silver, copper, and lead, unrivalled deposits of iron, — all these natural riches contribute to make the country wealthy, and at the same time 6 Fundamental Ideals. [§3 to diversify its interests. In the census of 1900, the annual agricultural products of the whole United States were valued at ^4,700,000,000, the manufactures at $8,400,000,000. It is not only a rich but a busy land, full of opportunities. These natural advantages have had a great effect upon the development of American government. The whole land east of the Rockies is so easily accessible, and the mountains and rivers are so easily passed that, since the French were ex- cluded in 1763, there has been no permanent division of the interior into independent communities. Men have passed back and forth, northward and southward, eastward and west- ward ; and the only attempt that has been made to divide the country — the rebellion of 1861 — failed because geographi- cally and politically there was no natural division into a North and a South. The ease of transportation has led to great rapidity of settlement in wild territory; hence new communi- ties have rapidly sprung up, and the continental states of the Union have in a century increased from seventeen to forty-five. The wealth of the country and the ease of transportation have stimulated the growth of cities, for which a special system of municipal governments has had to be contrived. The foreign commerce of the United States, its favorable position between two oceans, its internal wealth, have given to the national government enormous revenues and great prestige. In natu- ral resources our country is surpassed only by China ; in area of compact territory only by Russia; in accumulated wealth by no people. The United States occupies a great territory, fitted by nature to be the home of a great nation. 3. Political Subdivisions. The United States has a system of political subdivisions more complicated and various than that of most lands ; for we have three main units of government, — the federal, the state, and the local, — each of which is subdivided for its own pur- poses. The most important kind of territory is the states of the Union, with boundaries partly derived from grants and §3] Political Subdivisions. 7 charters made before the Revolution, and partly from acts of Congress admitting the later states into the Union. In addi- tion, the United States is divided into 9 judicial circuits ; the coast of the ocean fronts and the Great Lakes is divided into 120 tariff collection districts ; the interior and the coast together are divided into 63 internal-revenue collection districts. The states are subdivided into counties, varying from 3 in Delaware to 249 in Texas ; and into election districts, first for members of Congress, then for the two houses of the state legislature. Within the counties are, in most states, towns or townships and cities (though a city sometimes occupies the whole area of a county, as in the case of Philadelphia). Within the townships are sometimes boroughs or villages, as well as electoral subdivisions. The cities are divided into wards and voting precincts. All these local boundaries are invariably fixed under author- ity of the state legislature, and are subject to constant change : counties are frequently subdivided, electoral districts are re- arranged, ward lines are redrawn from time to time, as cities grow ; hence people have very little interest in, and often very little knowledge of, their own political subdivisions. The city boundaries constantly tend to increase by taking in surround- ing country : thus the city of Chicago covers 190 square miles, including large areas of open prairie tilled as farms. The whole area of the United States not included within state boundaries is also subdivided into a variety of territories and districts, posts, reservations, and dependencies, which will be duly described hereafter. Nor is there any uniformity in these subdivisions. In France every department is divided into cantons, and every canton into communes ; in the United States each state sets up its own local system. Nearly all of us live in an electoral precinct; a judicial district; a representative, a senatorial, and a congressional district ; a town, a township, or a city ; a county ; and a collection district ; each of which has its special officers and its special purpose. 8 Fundamental Ideals. [§ 4 4. Population and Distribution. Upon the face of the land, and within the territorial sub- divisions just described, live in 1903 about 80,000,000 people, which is about fifteen times as many as in 1803. In 1790 our population was 4,000,000, and it has doubled, or nearly doubled, every twenty-five years since : thus in 1 8 1 5 the population was about 8,000,000; in 1840, over 16,000,000; in 1865, well over 32,000,000 ; in 1890 for the first time it showed a slower growth, being about 62,500,000 instead of 64,000,000; in 1900 the official count was 76,303,387 (including Hawaii and Alaska, but not the other insular possessions). This makes the United States fourth in population of world-states, next to China, Russia, and Great Britain ; or, leaving colonies out of account, it is third ; and it is easily first in its power to pro- duce intelligent and educated men and to call upon them in time of need ; so that it is becoming the most powerful nation in the modern world. An examination of the map opposite, however, will show how unequally this population is distributed. Great areas in the West have less than two inhabitants to the square mile, while some sections in the heart of cities are as crowded as East London or Canton. The areas of thick population and of the richest and most prosperous cities are on the North Atlantic coast (from Portland, Maine, to Washington), through Central New York and the Valley of the Ohio, in the Northern Mississippi Valley, and about the Great Lakes. The distribution of population is much affected by concen- tration into cities. In 1900, 25,000,000, or nearly one third of the population, lived in the 546 cities. To be sure, the rural population is also increasing : the 50,000,000 rural dwellers in 1900 are as many as the whole population, urban and rural, in 1880 ; but there are large areas, especially in New England, where the country towns have decayed and the former homes of prosperous families are left to go to ruin. This is a sign not of loss, but of gain, an evidence that the people have found DISTRIBUTION OF THE POPULATION OF THE UNITED STATES, 1900. [Revroduced from Report of Twelfth V. S. Census.! BOilMAY& CO., N.Y. § s] Race Elements. 9 better conditions in the neighboring cities or in far-off country homes. The largest aggregation of city population in 1900 was Greater New York, with 3,437,202 people; then followed, in the order of the number of people, Chicago, Philadelphia, St. Louis, Boston, Baltimore, Cleveland, Buffalo, San Fran- cisco, Cincinnati, Pittsburg. The city of New York has in it about as many people as the whole country west of the watershed of the Rocky Mountains ; and fourteen of the states of the Union have each fewer people than live in the city of Cleveland. The effect of city growth has been to disturb the balance of government within states possessing great cen- tres : in New York, Massachusetts, Maryland, Illinois^ Missouri, Louisiana, and Ohio there is a difference of interest between the urban and the rural parts of the state, and the country members of the legislatures constantly attempt to govern the cities. An important element in the distribution of population is the movement from state to state: 14,000,000 people, or nearly one fifth of the nation, were hot born in the state or territory in which they live ; probably one third of the adult population has moved at least once from a state into another state. Thus, in Oklahoma only 15,000 out of the 100,000 of the whole population were born in the territory ; and even in an old and settled region like Iowa, about a quarter of the people have come from other states. This shifting about has carried principles of government from one part of the country to another ; but at the same time it has prevented the growth of a deep-seated feeling of attachment to one particular state, and of responsibility for its future. 5. Race Elements. No great modern country has been so much affected by the coming-in of foreigners as the United States. In 1900 abour 10,500,000 of its residents were born outside of the country: ^of these nearly 3,000,000 were from Germany or other Geiniaii- lo Fundamental Ideals. [§5 speaking countries ; about 1,800,000 were Irish born; England, Scotland, and Canada furnished a total of 1,800,000 ; Norway, Sweden, and Denmark, about 1,000,000 ; Slavs of various origin, about 1,200,000; France, Italy, and Mexico together, about 700,000. In forty years the number of Irish-born Americans has been stationary, the Germans have more than doubled, and great numbers of Latin and Slav immigrants have come in from countries unrepresented in i860. These race elements are erratically distributed. The Irish and Slavs prefer the cities, the Germans and Scandinavians the open country. Some sections of the United States have almost no immigrants : thus, in the Southern states, leaving out Texas and Missouri, there are only about 400,000 for- eigners, — less than are to be found in the single city of Chicago. These foreigners have furnished laborers and work- men for the farm, for railroad-building, and for the factory, and they have greatly contributed to the building up of the great Northern cities. In addition to the 10,500,000 immigrants, nearly 16,000,000 of our countrymen are born of a foreign-born father or mother or both parents ; so that of the 75,000,000 Americans, 26,000,- 000 are chiefly of foreign origin, 9,000,000 are negroes, and only about 40,000,000 are of what may be termed an Ameri- can stock. Hardly in the history of mankind has a great country received such an influx of mixed population from with- out ; and the present prosperity of the republic is proof that this foreign element upon the whole is safe, and that in the course of time most of the descendants of foreigners will be absorbed into the body politic. The negro population of 9,000,000 includes nearly every person who has any discoverable admixture of negro blood, even to the thirty-second degree. That population has a large birth-rate, but also a large death-rate, and hence increases at a ratio a little less than that of the neighboring white popula- tion. The negro population is not altogether confined to the Southern states : there are about 400,000 in the states from § 6] American Society. 1 1 Maine to Pennsylvania, and 500,000 in the states fiom Ohio to the Dakotas. In two of the states in the Union, Mississippi and South Carolina, the negroes are in excess of the white population ; and in Alabama, Georgia, and Florida they are nearly equal. In general the negro population tends to con- centrate in the counties in which there is already the largest number of negroes, and the white population to move slowly into other parts of the same state. I/' 6. American Society. The final measure of national power is not numbers, or diversity of elements, but the character of the people. Are the Americans a people who have that sense of common inter- est, common standards, and common destiny which makes a strong and enduring race? The most obvious and the most important social principle in America is equality of opportunity, — the right of every man and woman to do what he is by nature best fitted to do, and the corresponding right of every child to have such a degree of education as will give him the opportunity to show capacity for service to his kind. Hence, in a society which includes race and social elements of great diversity, which runs up the scale from poverty to unmeasured wealth, from the ignorance of the rudest peasant to the polish of the finest modern gentleman, there is always present the democratic idea that wealth, education, and distinction may come to that man who, whatever his beginnings, shows the power to make something of himself. In government, as in business, the beginner in America looks all along the road to the highest place. A larger part of the population is trained by some experience of government than probably in any other country, except perhaps Switzer- land. Offices small and great abound, and are commonly held for short terms ; most adult men have personal contact with the various forms of their government. Furthermore, politics are much affected by the great numbers and the physical 1 2 Fundamental Ideals. [§ 6 power of the American people : it lies in the genius of the Americans to undertake great tasks ; they like to build trans- continental railroads and Isthmian canals ; they like to estab- lish land offices and Philippine commissions, expecting that they must succeed ; with confidence they organize immense municipalities and great national services. The variety of race elements undoubtedly leads to combinations of small groups : in many parts of the country, politicians carefully cul- tivate the German vote, the Irish vote, the Scandinavian vote. To carry on a hotly contested election campaign in Wisconsin, political speakers must be provided with no less than fifte en languages if they are to reach all the voters ; but it seems unlikely that these racial groups will long remain an element in American politics. American society is in a state of constant change. In few communities do the children live in the house in which their fathers were born ; people freely alter their calling, their street, their town of residence, their state : few communities have historical associations with the past. Hence Americans are always ready to take up experiments in government, and as ready to abandon a system which does not work to their minds. To a Frenchman it would seem impossible that in twenty years a city could have three charters; or to a German that a state should five times completely revise its constitution in a century. Yet within this flexible and change- ful system of government there is a remarkable conservative instinct, which makes great changes in American government very slow : for instance, after the Civil War, the New England town system was introduced into some of the Southern states ; it simply died out for lack of soil in which to grow. Hence also the strong hold upon Americans of unwritten practices of government, — as, for instance, the widespread principle that a representative must live in the district which he represents. In general, American society with its democracy, its rapid movement, its eagerness to improve, and yet its strong hold upon the past, is well suited to the institutions which it has §6] American Society. 13 worked out. We shall find that American government is changeful and yet stable, elastic and yet firm ; and that respect for tradition and precedent and vested rights play almost as great a part in America as in such rigid and con- servative governments as England. CHAPTER II. THE INDIVIDUAL AND HIS PERSONAL RIGHTS. 7. References. Bibliography: Channing, Hart, and Turner, Guide (1912), §§ 163, 186, 209, 228, 234, 240, 241; Cyclop, of Am. Govt. (1914), I, 130, 273, 282, 616; II, 41, 57, 106, 347, 348, 516; A. B. Hart, Manual (1908), §§ 192, 197, 203, 206, 211; F. A. Cleveland, Organized Democracy (1913), §§ 57, 67, 70, 303; Macy and Gannaway, Comparative FreeGovt. (1915), 720-723 (cases). Conceptions of Personal Rights: E. McClain, Constitutional Law (1910), §§ 198-205; H. Brannon, Fourteenth Amendment (1901); T. M. Cooley, Constitutional Limitations (7th ed., 1903), chs. ix-xiii; M. Hill, Liberty Documents (1901), chs. i-xii; B. A. Hinsdale, Am. Govt. (4th ed., 1917), chs. xlvii, xlviii; J. K. Hosmer, Anglo-Saxon Freedom (1890); E. Kelly, Government or Human Evolution (1900- 1901); F. A. Cleveland, Organized Democracy (1913), chs. vii, xix; Cyclop, of Am. Govt. (1914), Arts, on Bills of Rights; Civil Rights; Civil Rights, Constitutional Guarantees of; Due Process of Law; Fourteenth Amend- ment; Habeas Corpus; Liberty, Civil; Liberty, Legal Significance of; W. W. Willoughby, Constitutional Law (1910), II, chs. xlv, xlvi; J. B. Thayer, Cases on Constitutional Law (1895), I, 1-47; J. A. Woodburn, Am. Republic (1916), ch. i; T. M. Cooley, Constitutional Law (1898), ch. iv, §§ 3, 14, chs. xii-xvi. Citizenship: E. McClain, Constitutional Law (1910), §§ 193-196; R. L. Ashley, Am. Federal State (1911), ch. xxix; W. H. Taft, Four Aspects of Civic Duty (1906); Cyclop, of Am. Govt. (1914), Art. on Citizen- ship in the U. S.; W. W. Willoughby, Constitutional System. (1904), chs. XV, xvii; F. A. Cleveland, Organized Democracy (1913), chs. viii, ix; W. W. Willoughby, Constitutional Law (1910), I, chs. xvi-xix, xxxi; J. Story, Commentaries (1873, 1891), §§ 1103, 1104, 1693-1695, 1805, 1806, 1928-1975; J. B. Moore, Digest (1906), III, §§ 372-486; W. L. Scruggs, Ambiguous Citizenship {Pol. Sci. Quar., I, 199-205, 1886). Personal Freedom: E. McClain, Constitutional Law (1910), §§ 212- 216, 218, 227-243; Cyclop, of Am. Govt. (1914), Arts, on Freedom of Speech and of the Press; Freedom, Personal; Negro Problem; W. W. Willoughby, Constitutional Law (1910), II, §§ 455-459; T. M. Cooley, Constitutional Limitations (7th ed., 1903), ch. x; J. C. Hurd, Law of Freedom and Bondage (1858-1862); R. L. Ashley, Am. Federal State (1911), ch. xxiv; B. Wendell, Liberty, Union and Democracy (1906), ch. ii; discussions on the Thirteenth Amendment in constitutional treatises. — Sources: M. Hill, Liberty Documents (1901), chs. viii, xxi- xxiii; W. MacDonald, Select Charters (1904); Select Documents (1898); Select Statutes (1903). 14 § s] The Citizen and the Alien. 1 5 8. The Citizen and the Alien. In a nation, the individual is not simply a social factor ; he is or may be a citizen, a constituent part of the state. Citizen- ship is simply recognized local membership in a political community, and carries with it great privileges and- large responsibilities. Citizenship is a privilege which attaches not only to men, but to women and children down to the very youngest : convicts, paupers, insane persons, may be, and usually are, citizens, and as such are entitled to the care and protection of the state. By a statute of 1885, every woman married to a citizen of the United States is deemed a citizen. Citizens may or may not be voters, — only about one fifth of them have the right of suffrage ; they may or may not be sub- ject to military service ; but the weakest and the strongest, man, woman, and child, are equal in their inborn or acquired right to liberty, to justice, and to protection. For many purposes, such as holding and transferring property, suing and being sued, corporations are technically citizens. To the Roman in his day, or to primitive man, such as the American Indian, every person not in formal relations of friend- ship was a personal and natural enemy ; but the growth of international trade, the visits of mariners, and the residence of merchants in foreign countries, throughout the civilized world cause the alien foreigner to receive large privilege of move- ment and of occupation. Any foreigner of good character, able to care for himself, is freely admitted into the United States, and the sea-board states have no right to prevent his coming. In 1900 there were in the country about 2,000,000 alien adult men, and probably as many women, who had not acquired citizenship. The United States government possesses power to expel aliens ; but the only general statute ever passed for that purpose, the Alien Friends Act of 1798, was never put into execution. The alien may sue in the state and national courts ; he is en- titled to appeal to the government for the protection of his life 1 6 Fundamental Ideals. [§9 and property, to jury trial, and to many like privileges ; under the Homestead Act of 1862, Congress has given millions of acres of land to aliens ; in eleven states of the Union, an alien may under some circumstances vote, and even hold office ; and by practice and a succession of treaties, most of them are also entitled to liberty of conscience and worship, and may move about and trade at their will ; the only widespread restriction is against alien holdings of real estate. Socially and practically, no distinction is made between the foreigner who has never acquired United States citizenship, the naturalized foreigner, and the native-born citizen. A double citizenship arises out of the federal character of the government. In 1857, in the famous Dred Scott case, four judges affirmed that a person of African descent could not be- come a citizen of the United States, or a citizen of a state, in the sense of the constitution of the United States. This doc- trine was one of the main reasons for the passing of the Four- teenth Amendment in 1868, which provides that "all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside." This does not necessarily cover persons born in the organized territories, or born of American parents abroad, or minor children of unnaturalized foreigners. Thus, every citizen of the United States becomes a citizen of a state while residing in it; but the states may confer all the privileges of state citizenship within their limits upon foreigners who have not yet become citizens of the United States. 9. Acquirement and Loss of Citizenship. Membership in the community is acquired either by birth, by naturalization, or by annexation. In the practice of modern nations, one of two rules is usually followed : by the jus san- guinis, the children of citizens born abroad are thereby born citizens of the home country ; by the jus soli, all persons born within a country are citizens, no matter what the nationality of the parents. §9] Acquirement and Loss. 17 (i) While we adhere in general to the English doctrine of the jus soli for the children of aUens born in the United States, we claini for the children of Americans born abroad the jus sanguinis. Nevertheless, the children of Americans residing abroad are often claimed by the foreign governments because born on their soil ; and hence such young people sometimes come to America to spend a few years about the time of their majority, in order to affirm their American citizenship. (2) The doubtful cases of citizenship almost all come from naturalization, which is the process of transferring personal alle- giance and political membership from one nation to another. In colonial times and under the Confederation, such transfers from foreign countries to the colonies, or from one colony or state to another, were frequent ; and each community decided for itself upon the methods and limitations of admission. The federal constitution of 1787 gave to the federal government the sole right to fix conditions of naturalization, and successive statutes have laid down the method and terms of citizenship. The period of minimum residence since 1795 has been five years (except from 1798 to 1802, when it was fourteen years). No matter how long a man has been in the country, he must formally file a "declaration of intention" at least two years before naturalization ; he must then prove by two witnesses that he has resided in the United States five years, is a man of good moral character, not an anarchist, and is attached to the constitution ; and he must by oath renounce his allegiance to his former country. His naturalization includes his wife and minor children. These formalities are easy, perhaps too easy, of fulfilment ; although Congress defines the method, any federal or state court may receive the proof and issue the certificate, and little pains is taken to verify the evidence. Naturalization is not the right of all races : no ahen Mon- golian, especially no Chinese, can be naturalized in the United States j and no member of our own Indian tribes can get citi- zenship by naturalization, though he may by leaving the tribe. The naturalized citizen, so long as he remains in America, 2 I 8 Fundamental Ideals. [§ 9 is not likely to have any relations with his former govern- ment ; but thousands return to their country of origin to visit their friends, or on business. Until 1870 Great Britain always claimed such persons as still her subjects ; and when in the sixties the German system of enforced military service began, young men who had avoided that service and returned years afterwards with certificates of American naturalization were seized and punished for neglect of military duty. This diffi- culty led to a series of treaties, negotiated about 1868, under which the German governments agreed that if a German should be absent from his native country five years without showing an intention to return, he should thereby lose his German citizenship ; if he afterwards returned to Germany and re- mained there two years, the American government agreed that he should thereby forfeit his newly acquired American citizen- ship. Both countries thus formally acknowledge the right of a man to change his membership not only once but twice ; and admit that a man may forfeit his citizenship by residence abroad without plain intention of returning. The same principle has been stated in treaties with many other countries. A curious class called " heimathlosen," or " homeless ones,'* have lost the citizenship of one country without acquiring that of another : thus the German who has lived in the United States five years without being naturalized loses his German citizenship, yet does not become an American ; hence in the United States or Germany or elsewhere in the world he is not entitled to ask for special protection from any power. (3) The third method by which citizenship may be acquired is the annexation of the country in which the foreigner resides : thus, when Louisiana and FJorida came into the Union, it was provided by treaty that the inhabitants of the territory should be admitted as soon as possible to all the rights and advan- tages and immunities of citizens of the United States. Under a similar clause, persons who were citizens of New Mexico and CaUfornia in 1848 became citizens of the United States through th^ transfer ; and thus the Zuni and other tribes of § lo] Privileges and Obligations. 19 Indians, by an exception to our usual practice, became, and their descendants remain, full citizens of the United States. By the treaty of 1899 for the cession of Porto Rico and the Philippines, the question of citizenship was left for settlement by act of Congress ; and Congress has not seen fit to incorpo- rate the people of those dependencies into full American citi- zenship. They have in that respect much the status of the American Indians. In some foreign countries there is a system called the civil death, by which a person convicted of a serious crime loses his citizenship and thus can no longer hold property or act as a member of the community ; and many foreign countries banish their own citizens. Absolute loss of citizenship as a penalty for crime does not prevail anywhere in the United States, and it is doubtful whether any state can legally expel one of its citizens. The only recorded case of banishment of a citizen by the United States was the sending of C. L. Vallandigham across the border into the Confederacy during the Civil War; and that was justified at the time only as a military measure. . 10. Privileges and Obligations of Citizenship. In many respects the alien has the same duties and the same rights as the citizen : he must obey the laws and pay taxes ; but all his privileges he holds subject to ejection. The citizen's rights, on the other hand, are based on long tra- dition amounting almost to an indefeasible right, on solemn limitations in the federal and state constitutions, and on federal and state statutes. (i) A great privilege is that of protection: no individual may take the property or injure the person of a citizen without a criminal responsibility ; both the federal government and the states are by the federal constitution forbidden to deprive any person of life, liberty, or property without due process of law ; even under due process of law, governments may take prop- erty for public purposes only on just compensation. This pro- tection follows the citizen upon the high seas and into foreign 20 Fundamental Ideals. [§ lo countries. An American abroad is subject to the laws of the country to which he goes, and he may be expelled from a foreign country exactly as the alien in the United States ; but while he remains he has, by the ordinary principles of inter- national law and by numerous treaties made in his behalf, the right to move about and carry on trade ; and he is entitled to the same treatment by foreign courts as is the foreigner in ours. Americans have also acquired the right, in most coun- tries throughout the world, to preach religious doctrines, and to convert such natives as their teaching may affect. (2) The privileges of a citizen at home in America include a share in all that the state does for the individual. The citizen is entitled to an education at the expense of the state ; he is entitled to use the public roads, streets, and grounds, and to ride for the legal fare on the street railways, railroads, and passenger steamers ; if unable to support himself, the public must keep him from starvation ; if he goes insane, he is en- titled to the aid of the public asylum : the state exists for him, and he and his fellows are the state. The obligations of citizenship correspond with the advan- tages, (i) First, the citizen is held responsible to national, state, and local laws. If he commits crimes or misdemeanors, he must submit to trial, and, if convicted, to punishment ; if called upon, he must aid the public authorities in keeping order. (2) Another obligation of consequence is that of military service. Every state may require its adult able- bodied male citizens to serve in the militia for the defence of the state government ; and the federal government may call upon any such person to serve in the national army for de- fence or offence. In the Civil War, thousands of men, both North and South, were chosen by draft to enter the armies. (3) The Civil War distincdy brought out the obligation, if there be any conflict of authority, to obey the national government against a foreign nation or against a city or a state. Although for his share in that contest no person was convicted of trea- son, nothing can be more certain than that in future collisions §ii] Anglo-Saxon Liberty. 21 of authority, the federal government will hold responsible with their lives persons who may refuse to obey on the ground that they are directed to the contrary by their state. (4) Another obligation of many citizens, not enforceable by law, is to take part in the government in public elections. The right to vote is not an incident, but a privilege conferred on some citizens or even aliens. Yet citizens who are not voters, including many minors, can take an intelligent interest in pub- lic affairs, and can join in protest against the appropriation of public benefits by a few persons. (5) Another moral obligation of citizens is to reach their political ends through the peaceful process of choosing men to represent them who will bring about the desired reforms. The punishment of criminals must be intrusted to the courts ; the redress of abuses to city councils, legislatures, and Congress. Riots and violence and mobs in behalf of a good cause simply encourage like irregular methods in behalf of a bad cause. 11. History of Anglo-Saxon Liberty. Citizenship does not necessarily mean freedom : subjects of the czar of Russia or of the sultan are citizens. Even in coun- tries where there is popular participation in government, the individual may be legally subject to forms of arrest, imprison- ment, trial, and punishment which seem to us unjust. Men of the English race have a tradition of freedom from arbitrary acts by officers of civil and military government, such as has never been known in the previous history of the world. The rights of Englishmen are partly traditional : in part they are expressed in a succession of great royal grants and acts of Parliament. In the charter of King Henry I, in iioo, he promised not to lay " an arbitrary mulct of money " upon wrongdoers. King John, in the great Magna Charta of 12 15, consents that " a freeman should not be amerced for a small offence, but only according to the degree of the offence " ; and that " No freeman shall be taken or imprisoned or disseised, or outlawed, or banished, or any ways destroyed, nor will we 2 2 Fundamental Ideals. [§ n pass upon him, nor will we send upon him, unless by the law- ful judgment of his peers, or by the law of the land. We will sell to no man, we will not deny to any man, either justice or right." These privileges were at first secured, not for Englishmen in general, but for the great nobles who owned the land and who alone could assist in making the laws ; but gradually they were extended to the commonalty, and came to include the two mighty principles that a sovereign may be forced by the moral pressure of his people to deny himself arbitrary power ; and that a grant made by one sovereign is binding upon his successors. By 1500 the system of jury trials was well established ; and during the great struggle with the Stuart kings, from 1604 to 1688, the rights of the individual were stated in the Petition of Right (1628) ; the Agreement of the People (1649), and other attempted written constitu- tions of the English Commonwealth ; in the Habeas Corpus Act of 1679 'j ^^'^^ ^^ •^he Bill of Rights of 1689. The princi- pal rights thus enumerated are the freedom of the individual from arbitrary money exactions, from the quartering of soldiers, from martial law for civilians, from compulsion to go on for- eign military service ; especially from arrest and confinement without a charge of crime, and from cruel and unusual methods of trial and punishment. Our colonial forefathers brought over most of these great individual rights, and participated in their extension in Eng- land after colonization began ; they had also early charters and instructions to governors, under which they enjoyed ex- press freedom from arbitrary executive and judicial power. In the Declaration of Rights and Grievances in 1765, the Stamp Act Congress declared that " his majesty's liege sub- jects in these colonies are entitled to all the inherent rights and privileges of his natural born subjects within the kingdom of Great Britain." Notwithstanding occasional unjudicial trials and cruel pun- ishments, like those of the Quakers, the colonies enjoyed §12] Rights of Personal Freedom 23 greater individual freedom than Englishmen at home. When the first state constitutions were framed, from 1776 to 1780, they formulated these accumulated rights : for instance, free- dom from arrest except on warrant, the right to be confronted with accusers and witnesses, the freedom of the press, and the exercise of government for the common benefit of the community. The Declaration of Independence in 1776 pro- tested against the quartering of troops, the imposition of taxes without consent of representatives, and the withdrawal of trial by jury. The Ordinance of 1787 guaranteed to the people of the Northwest Territory the right of habeas corpus and of trial by jury, and restated some of the clauses of the Magna Charta. The federal constitution includes clauses for the maintenance of habeas corpus, for the freedom of religion and of speech, for the right to bear arms and to petition, for public trial by an impartial jury, and for freedom from cruel and unusual punishments, from quartering soldiers, and from bills of attainder and ex-post-facto laws. These fundamental restrictions protect the citizen not only against officers of government, but against the community itself; and they have been enlarged by many state and national consti- tutional amendments, and by the practice of a century. Thus, the Thirteenth and Fourteenth Amendments absolutely forbid human slavery, and also protect against unlawful deprivation of life, liberty, and property through the action of any state government. These guaranties have spread wherever there are English colonies ; they have profoundly affected the prac- tices of other nations of Europe and of America ; and to-day the conception of inborn human rights, of which no individual can be deprived, is the foundation of the whole political and social system within the United States of America. 12. Rights of Personal Freedom and Habeas Corpus. The first of all the rights of the individual is personal free- dom ; yet it was for centuries studiously violated in America by the system of slavery. From the beginning of colonial 24 Fundamental Ideals. [§ 12 history, Indians were made slaves; in 16 19 began the system of negro slavery in Virginia ; and throughout the colonial period, and even later, white persons were sold to masters as " indentured servants " for terms of years or for life. Beginning with Vermont in 1777, many of the common- wealths prohibited slavery within their borders. Congress prohibited slavery in the Northwest Territory in 1787, and in other areas in 1820, 1845, and 1848. January i, 1863, President Lincoln declared that slavery would no longer be recognized within the lines of the Confederate army ; and in December, 1865, the Thirteenth Amendment was added to the constitution, by which " Neither slavery nor involuntary servi- tude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." When the Philip- pines were annexed in 1898, slavery existed in the Sulu Islands ; but from the moment of cession it ceased, under this provi- sion, to have any legal existence, and any person claiming his freedom there is entitled to the protection of the government. Some exceptions to this system of universal freedom exist : children are not free, but the authority of their parents is sub- ject to the control of laws, and children are frequently taken by the courts away from the custody of cruel or neglectful parents ; insane people may be restrained of their liberty for their own protection and that of the community, and to give them an opportunity for recovery ; paupers who require the support of the state are commonly much restricted of their liberty ; and convicts are in many ways slaves of the state during their term of confinement, though they should be pro- tected by rigorous laws prescribing humane treatment. In some Southern communities, convicts are hired out in gangs, generally controlled by state officials ; and there have been cases in Mississippi in which criminals have been sold for a term of service to farmers who were to have " full and com- plete power to control and discipline such prisoners." In a few states, the service of vagrants may also be sold for brief § 12] Rights of Personal Freedom. 25 periods to private individuals. Both practices are contrary to the Thirteenth Amendment. A person physically and mentally capable of taking care of himself, and not under punishment for crime, cannot be compelled to render any personal service or to remain in any particular place ; nobody can legally contract to give another person power to restrain him of his liberty. Personal freedom includes the right to move freely from place to place and from state to state. To this general prin- ciple there are some important and increasing exceptions : the states may prevent the coming in of a person who would be dangerous to the health of the community ; and paupers are often moved back and forth to the communities from which they originally came, without the consent of the persons con- cerned. Furthermore, the United States does not recognize the right of natives of dependencies to pass to the main country. Chinese may travel unimpeded from San Francisco to New York, but no Chinaman may travel from the Philippine Islands to San Francisco ; and if there should be a considerable movement of the Porto Ricans or the Filipinos to the conti- nent. Congress would probably prevent it by law. In many Southern states, members of the negro race are practically not free to move where they will : in cases where they have at- tempted to emigrate to the West, their steamers have been stopped and they have been compelled by shotguns to return lest the Southern communities should be deprived of work- men ; on the other hand, there are counties in the South in which no negro is allowed to set his foot, on pain of being shot without trial. One other exception to this principle must be noted, — namely, the right of the state to imprison people who are charged with crime, until they can be brought to trial. To pre- vent indefinite confinement without a test of guilt, very ancient English statutes, which appear in some form in the laws of all the states, provide that no person shall be arrested except on reasonable suspicion of crime, which must be set forth iii a 26 Fundamental Ideals. [§12 regular warrant specifying the person and the crime. Until about 1830, a person might also be arrested in any state in the Union if he could not pay his debts ; but the system has now nearly disappeared. When arrested on a proper warrant, in most cases bail will be accepted by the courts ; that is, persons supposed to be pecuniarily responsible will agree to forfeit an agreed sum if the prisoner shall not appear in court at the proper time. In case of aggravated crime, or where there is manifest danger that the presumptive criminal will run away, bail is refused, and hence presumably innocent persons may spend months in jail before trial. In some states important .witnesses are also detained, for no other fault than that they know something about the case. Several ancient methods of testing whether a person was con- fined under a proper charge grew up in England ; and in 1679 the English Parliament provided a better remedy in the great Habeas Corpus Act. In effect it provided that any person who thinks that he or another is unjustly imprisoned may represent the facts to a court, which will then issue a writ of habeas corpus, directing whoever may have in custody the person described in the writ to produce such person in open court (unless charged with treason or felony) and state the reason for his detention : thus, the head of an insane asylum may be compelled to bring his patient before the court and show whether he has complied with the legal method of finding out whether the person is insane. The court of review decides whether law can be shown for the arrest and detention. In 1807, President Jefferson tried to hold BoUman and Swartwout on suspicion of complicity in the Burr rebellion ; and Chief Justice Marshall set them free, because they had been arrested by the military without proper warrant. Under our federal system, justices of state courts sometimes grant the writ of habeas corpus in cases of arrest by United States officials; and justices of United States courts issue it for state prisoners. These cases of con- fusion are generally settled by appeal to the Supreme Court of the United States. § 13] Political and Religious Opinion. 27 Habeas corpus may be suspended in case of civil war or of foreign war ; it was so suspended during the Civil War, and nearly thirty thousand persons were arrested without any proper warrant, frequently on mere suspicion. President Lincoln took the responsibility for this suspension, which eventually ex- tended to places very remote from the seat of war ; and Con- gress, in 1863, passed a kind of indemnification act. It is the opinion of most publicists now that habeas corpus cannot be ■ suspended except by act of Congress, and that most of the arbitrary arrests from 1861 to 1865 were unnecessary and harmful to the administration. 13. Rights of Political and Religious Opinion. Of all the activities of mankind, the only one that is abso- lutely beyond the control of other men is the inner belief, the conviction that some things are and other things are not. . No government and no church has the physical power to discover what people are thinking about ; by force of torture men may be compelled to reveal their secrets, but the extremest physi- cal violence will not induce a blind man to believe that he has sight. Nevertheless from the dawn of civilization, churches and governments have busied themselves with impalpable beliefs, as though they were physical acts. From the theory that the state or the church, or both combined, have power to punish people for beUeving in their hearts what the authorities do not believe, our ancestors have come all the long road to the widest freedom of thought ever known to mankind. For it is the principle of American government, expressed both in federal and state constitutions, that every man has the freest liberty to believe what he considers the truth. American liberty goes further : it includes the right to express opinions in private conversation and in public utter- ance, so long as one does not undermine the morality of the community or incite other persons to violent actions ; and to induce other people to join in the statement of a supposed truth. 2 8 Fundamental Ideals. [§13 By centuries of conflict, our ancestors earned the right to petition public authorities for redress of grievances, including the assembling to discuss common grievances and to formulate a joint statement, — that is, the right of public meeting. In other countries, assemblages are allowed only by favor : in Ber- lin, for instance, it is contrary to the law for several persons to join in conversation on the streets ; and luckless Americans are sometimes arrested for exchanging too long a good-night. In the United States the mass-meeting is recognized as one of the most effective ways of influencing public opinion. Ameri- cans habitually send petitions to members of the local, state, and federal governments, and frequently are allowed to attend public hearings of legislative committees or of administrators, in order to present their views. The liberty of private utterance extends to the press, al- though the emancipation of the newspaper was slowly accom- plished. The Zenger case in New York in 1735 settled the question in the colonies. We have not, as in France, a deposit of a guaranty fund by the proprietors of the paper; here responsibility comes only after publication. We have never had a censorship, except during the Civil War, when attacks oil the government were prohibited. The only federal enact- ment on that subject, the Sedition Act of 1798, proved one of the most short-lived of statutes. Our theory is that of Crom- well : when a critic was arrested, the Protector set him free with the words, " Let him take his notes. If my government is made to stand, it has nothing to fear from paper shot." Some newspapers take scandalous advantage of the liberality of their government by prying into the details of private lives, by unjustified attacks upon the motives of public servants, and by the publication of gross and degrading criminal news ; but one of the greatest causes of discontent is removed when people may freely express their opinions and their dissents. It is usually to the interest of the newspapers to expose public wrong-doing, and therefore they are one of the most powerful influences toward upright public service. Any man who slan- § 14] Right to Fair Judicial Proceedings. 29 ders another, or by false and malicious libel excites the com- munity, may be punished through the courts. Freedom of thought includes the inestimable right of reli- gious opinion, one of the most significant achievements of the American people. The right includes the right to express an absence of religious belief so long as it is not blasphemous. Even our Puritan ancestors hanged people for practising an unpopular religion ; but the federal constitution obliges the federal government not to make any religious establishment or to fix any religious qualification. Most of the states have asserted the same principle for themselves in their constitu- tions. The question of the advocacy of such a religious doctrine as polygamy is a very difficult one. In 1887- the United States government formally dissolved the so-called Church of Jesus Christ of Latter Day Saints, and confiscated the church property, on the ground that polygamy was not a religious belief. 14. The Right to Fair Judicial Proceedings. The object of courts is to apply the laws, and to discover the truth in contested cases. Where criminal acts are charged, or even in civil suits, the courts must have power to compel the attendance of suitors or their counsel and of witnesses, and to make decisions, under which the custody of property or of persons may be transferred. Our whole machinery of justice is intended to give a speedy, fair, public, and unbiassed trial to every person charged with a crime ; it is even a presumption that a man is innocent of a crime until he is proved to be guilty. The federal constitution protects the people against unreason- able search and seizures, and requires specific warrants ; and the state constitutions have similar clauses. Tools of trade are usually exempt from legal seizure, and in certain states the homestead cannot be levied on. The detailed provisions in the federal constitution with regard to judicial trials apply only to federal suits. They provide that a man can be tried only on an indictment or a similar charge of guilt ; that he must be 30 Fundamental Ideals. [§ 14 tried by a jury in the criminal courts, and also is entitled to a jury in civil suits at common law where the value in contr j- versy shall exceed twenty dollars ; that no person can be com- pelled to witness against himself, or be twice put in jeopardy of life or limb ; that he must have speedy and public trial in the district wherein the crime shall have been committed. These provisions are repeated or imitated in most of the state constitutions. . Constitutional clauses do not protect a person against false testimony or a violent judge or a prejudiced jury, but they put in the hands of the innocent person proper means of establishing his innocence. Furthermore, no person can be punished by the United States courts for a crime defined by ex-post-facto law, — that is, a law made after the act was committed ; and he cannot be subjected to cruel or unusual punishments. Torture is absolutely excluded from our juris- prudence, either to ascertain evidence, or as punishment. The publicity of trials, the notice usually taken by the news- papers, and the power of the courts to set aside jury findings which seem contrary to the evidence, make it difficult to con- vict an innocent person, although they may also make it easy for a guilty man to escape. The great hardship and injustice under our present system is the long postponement of criminal trials ; and then the tedious proceedings, often lasting for weeks and months, wearying the jury almost past endurance, and overloading their minds with a mass of evidence on which they cannot discriminate. The Fourteenth Amendment, which prohibits the taking- away of life, liberty, or property without due process of law, under colour of a state statute, makes it difficult for the states to set up an arbitrary government. Of course no judicial system covers cases of mob violence, in which evidence is dis- carded and passion becomes judge. Private justice belonged to a ruder age. The mark of civilization is the willingness to leave to orderly judicial proceedings the punishment even of the worst crimes. §15] Dependent People. 31 15. Rights of Dependent People and Colonists. At the time the constitution was fiamed, in most of the states in the Union negroes, whether slaves or free, were poHtically inferior ; they were not entitled to the usual privileges of suf- frage or free movement or to the use of the courts. As late as 1857, Chief Justice Taney said that, when the constitution was founded, people held that the negro " had no rights which the white man was bound to respect." The Fourteenth Amend- ment was inserted into the constitution, in 1868, expressly to remove the discrimination between the races ; and the prin- ciple was further extended by the Fifteenth Amendment, so that the right of citizens of the United States to vote, " shall not be denied ... on account of race, color, or previous condition of servitude." So far as the law can put them on an equal basis, the negroes are entitled to exactly the same civil rights as the white man ; and they apparently have most of their judicial rights. Another race under a special dispensation is the Indians, who from the foundation of the colonies have not been con- sidered members of the political community. They are wards of the nation, and so long as they remain with their tribes have only such personal rights as may be conferred upon them by treaty or by act of Congress. Another class of dependents is the insane, paupers, and orphans, who are wards of the state ; they are entitled to and receive special consideration from the state, and special protec- tion through officials. The most serious question of dependent people has been presented by the recent annexations of island territory to the United States. Have the people outside the boundaries of organized states the same rights under the federal constitution as those within such states? When the territories were first organized, in 1784 and 1787, it seems to have been assumed that the residents had the rights of Americans ; as fast as new territory was annexed, it was speedily brought, sometimes by 32 Fundamental Ideals. [§ i6 treaty, sometimes by specific act of Congress, within the clauses of the constitution which provide for personal liberty. The new island possessions, however, have not as yet been distinctly placed under the genius of the constitution. In the Philippine Islands, Congress has not thought fit to apply pre- vious indictment or trial by jury, but has enacted the right to be protected in life, liberty, and property except by due proc- ess of law. Apparently, within the jurisdiction of the United States, there may be millions of persons who are not entitled to the constitutional provisions of personal liberty because it is supposed that they are not qualified to enjoy them. But those clauses are not inserted in the constitution simply for the bene- fit of the weak and defenceless ; they are there for the defence of society, and it is more important to the inhabitants of the states than to the dependent peoples themselves that the people in distant possessions should have justice and freedom. 16. Political and Social Rights. In most states of the Union, about one fifth of the popula- tion are voters. Inasmuch as the suffrage practically carries with it the opportunity to be a candidate for office, the wide extension of suffrage confers great privileges by opening up a possibility of distinction. The only distinct statements on social rights in the federal constitution are the two clauses forbidding the grant of titles of nobility by the United States or by a state. But the prin- ciple of American law is that all people are equally entitled to public advantages, such as parks, public libraries, public schools, municipal gas and water privileges ; and that they are also entitled to use private agencies established under super- vision of the state for common use, such as railroads and other means of transportation, hotels, and places of amusement. Nearly excluded from social rights are the negroes in the South : from time immemorial the members of that race, free as well as slave, have not been allowed the equal use of public or semi-public resorts. A statute passed by Congress in 1875, § i6] Political and Social Rights. 33 for the protection of negroes in such cases, was disallowed by the Supreme Court. Negroes are admitted to few of the hotels, North as well as South, and frequently are not allowed on Pullman cars. Most of the Southern states provide separate accommodations on trains for negroes and white people, pro- vide separate schools, and forbid the negroes to use the public libraries or to enter other than certain specified parts of theatres. In the North there is usually no objection to any clean and well-disposed person entering a public conveyance or a place of amusement. When it comes to a question of social intercourse, gentlemen and ladies choose friends and associates for themselves : there can be no system of legislation that compels A to invite B to his house, or to treat him in a friendly manner. The farthest point reached by the law is that the objection of A shall not prevent B from use of public facilities ; and the farthest social right that can be claimed, without bringing down the denuncia- tion of the community, is the right of C to invite B and treat him as a friend, whether A would invite him or not.' CHAPTER III. THE FRAME OF GOVERNMENT. 17. References. Bibliography: Cyclop, of Am. Govt. (1914), I, 83, 395, 408, 419, 421, 431, 438, 444, 717; II, 738; III, 220, 223, 298, 326, 409; Chan- ning. Hart, and Turner, Guide (1912), §§ 158, 163, 164, 166, 172-175, 178, 195, 203; F. A. Cleveland, Orgom'zerf Democracy (1913), §§ i, 15, 22, 29, 38, 45; Macy and Gannaway, Comparative Free Govt. (1915), 720 (cases); A. B. Hart, Manual (1908), §§31, 32, 97, 98, 136, 137, 142, 147, 158, 199, 203, 285, 287; E. McClain, Constitutional Law (1910), § 8. Constitution Making: J. A. Jameson, Constitutional Conventions (4th ed., 1887); E. McClain, Constitutional Law (1910), §§ 9-13; A. N. Holcombe, State Govt. (1916), ch. xii; W. W. Willoughby, Nature of the State (1896); J. Q. Dealey, Am. State Constitutions (1915); W. Wil- son, Constitutional Govt. (1908), chs. i, ii; F. J. Goodnow, Social Reform and the Constitution (1911), ch. v; R. S. Hoar, Constitutional Conventions (1917); A. L. Lowell, Public Opinion and Popular Govt. (1913), ch. ix; A. C. McLaughlin, Courts, Constitution, and Parties (191 2), Nos. 4, 5; C. S. Lobinger, People's Law (1909), pt. B; C. E. Merriam, Am. Politi- cal Theories (1903), ch. iii; Cyclop, of Am. Govt. (1914), Arts, on Articles of Confederation; Congressional Government; Constitution Making in the U. S.; Constitutional Convention; Constitutions, Classified; Constitutions, State, Characteristics of; Constitutions, State, Limitations in; Political Theories (5 articles); Popular Government; Revolution, Am., Causes; Revolution, Am., Significance; Separation of Powers; Social Compact; Sovereignty; State, Theory; States, Classification; W. W. Willoughby, Constitutional Law (1910), I, ch. iii; H, ch. Ixiii; J. A. Woodburn, Am. Republic (1916), ch. ii; J. Bryce, Am. Common- wealth (ed. 1910), I, chs. iii, xxxi, xxxii. — Sources: P. S. Reinsch, Readings on Am. State Govt. (1911), ch. ix; A. Johnson, Readings in Am. Constitutional Hist. (1912), pt. ii. Federal Convention of 1787: A. C. McLaughlin, Confederation and Constitution (1905), chs. xi-xviii; A. B. Hart, Formation of the Union (rev. ed., 1915), ch. vi; J. H. Robinson, Original and Derived Features (1890); C. A. Beard, Econ. Interpretation (1913); M. Farrand, Framing of the Constitution (1913); W. M. Meigs, Growth of the Consti- tution (1899); C. E. Stevens, Sources of the Constitution (1894); S. G. Fisher, Evolution of the Constitution (1897); Cyclop, of Am. Govt. (1914), Art. on Federal Convention and Adoption of the Constitution. — Sources: A. B. Hart, Contemporaries (1897-1901), IH, §§ 54-82; M. Hill, Liberty Documents (1901), ch. xvii; Am. Hist. Leaflets, Nos. 8, 18, 28, 30; J. Elliot, Debates on the Federal Constitution (1836-1845); 34 § i8] Sovereignty. 35 M. Farrand, Records of the Federal Convention (191 1); A. Johnson, Readings in Am. Constitutional Hist. (1912), ch. xii. Amendment of Constitutions: E. McClain, Constitutional Law (1910), §14; E. P. Oberholtzer, Referendum in America (191 1), chs. iii-vi; J. Bryce, Am. Commonwealth (ed. 1910), I, chs. xxxii, xxxvii, xxxviii; H. V. Ames, Proposed Amendments (Am. Hist. Assoc, Report for 1896, II); J. W. Garner, Amendment of State Constitutions {Am. Pol. Sci. Rev., I, 213, 1907); W. F. Dodd, Revision and Amendment of State Constitutions (1910); Cyclop, of Am. Govt. (1914), Arts, on Con- stitution of the U. S., Amendments to; Constitutions, State, Amend- ment of; W. W. Willoughby, Constitutional Law (19 10), I, ch. xxxvi. Texts of Constitutions (State): F. N. Thorpe, Federal and State Constitutions (1909); C. Kettleborough, State Constitutions (1918). 18. Sovereignty. The conception of personal rights which are not bestowed by a government, but inherent in organized society, has pro- foundly affected the American theory of the nature of govern- ment and the proper organization of government. From the beginning of colonization to the present time, the usual basis of American political thought has been that government is a necessary evil, something to be guarded, circumscribed, and checked. Our forefathers had a wholesome terror of absolut- ism, and strove to protect themselves against it, not only by carefully devised systems of government, but by theories which denied the possibility of absolutism. Yet no fact can be plainer than that in every organized community a part of the people exercise authority over the remaining part ; and that there is no practical limit to the extent of such authority, except physical force. To this ultimate power of compelling individuals to accept the will of others within an organized state, we give the name " sovereignty." The sovereign power extends to all the func- tions that can be performed by organized society, and espe- cially to such functions as can be performed only by some central organism. War, foreign treaties, taxation for public purposes, criminal jurisdiction, the personal service and obe- dience of the individual, — these things are objects of the sov- ereign power. Sovereignty is simply the ultimate expression 36 Fundamental Ideals. [§ lo of the public will ; and the legal sovereign is that individual or combination of individuals, within the acknowledged forms of the government, which formulates and applies the power of the nation. The notion of an absolute power over the lives and property of individuals is repugnant to the modern exaltation of the individual ; and in various ways throughout the world the phys- ical possibility of absolutism is softened and put into the background by various devices of governmental organization and by the growth of a humane and philosophic spirit. All human governments must be carried on by the one, the few, or the many, — by the despot, the oligarchy, or the democ- racy ; and in all three types there are practical limitations on an absolute use of power. The czar of Russia emancipating the serfs, the French Directory putting down the sections, our forefathers dealing with the Tories, — all found that they must work through human agencies and that they were re- strained or weakened by public opinion. The oligarchic government of the so-called Greek, Roman, and Venetian republics, and of England down to 1830, were kept within bounds partly by internal differences of opinion, and in England mainly by the inevitable participation of the middle class in government. Despotism is tempered not only by assassination, but by the practical necessity of getting things done through agents : Alexander the Great was absolute master of the people whom he conquered, but he was not sovereign over his own army. 19. Sovereignty of the People. The common phrases, " the people " and " consent of the governed," suggest the distinguishing mark of popular govern- ment which makes the legal constitutional depository of sover- eignty nearly correspond to the physical possessor of ultimate power. Where nearly all adult men can vote, the majority which decides questions has presumably the preponderant strength necessary to carry out its will ; hence sovereignty of § igj Sovereignty of the People. 37 the people avoids many of the shocks and revolutions which under other forms are necessary to enforce the truth that in the long run a minority cannot impose its will on a majority. Yet the government of the many must be carried out by the few ; and for a time the majority may yield to a small num- ber of determined men, better armed or better organized or simply in possession. The long and bitter experience of mankind shows the ne- cessity of protecting the minority, or the apathetic and dis- organized majority, by such a formal statement of principles as may cause the powerful to hesitate before applying the ultimate test of sovereignty, namely, the possession of superior force. Tradition, law, and especially definite and written constitutions, compel usurpers to confront vested rights and prejudices which are immense social forces ; hence the modern, and especially the American, practice of multiplying checks on the methods and extent to which the sovereign power shall be exercised. One such check is the doctrine of the compact, — very familiar at the time of the Revolution, — which was in effect that government was founded on an agreement between those who exercised power and those on whom it was exercised, and that to violate the tenor of the agreement would justify resist- ance. Another form of stating the same thing is the doctrine of indefeasible personal rights, which cannot be destroyed by any act of sovereignty : the doctrine does not in itself save men from arbitrary imprisonment, but it causes their oppres- sors to be objects of suspicion and dislike. The doctrine of constitutional limitations on government is a way of preventing occasions for dispute ; and the doctrine of checks and bal- ances attempts to provide an automatic machinery which shall sound an alarm at encroachments by members of the govern- ing class on others of the same class. Underlying all these ideas is the fundamental doctrine of revolution, — that is, of the moral right of the governed to take arms and try to prove their power as a sovereign majority, if the impalpable restric- tions on government are not observed. 38 Fundamental Ideals. [§ 20 This conception denies the sovereignty of those who exer- cise government, and puts it back on, those who have the right, within legal forms, to create restrictions on sovereignty. If, therefore, we can discover who has the ultimate legal power to make and alter constitutions, we have found the ultimate de- pository of sovereignty. In England, such a power rests in the peers of the realm and the constituencies of the House of Com- mons. In France, it rests in the electors of the Chamber and the Senate, acting in a joint convention. In the United States, the ultimate sovereign is the body of persons who, acting through two thirds of the members voting in the two houses of Congress, and through majorities of members voting in the two houses of the legislatures of three fourths of the states, may amend the federal constitution. 20. Representative Government. Another vital question is, Through what medium shall the popular will be expressed ? A direct democracy in which all the participants may meet together is the simplest, and comes nearest the exercise of popular sovereignty. Such direct gov- ernments are possible only in small communities. In the canton of Appenzell, for instance, on election day ten thousand men assemble, each girt with a sword, and vote for their offi- cers viva voce. The New England town- meetings in colonial times and in the country towns to-day are the best examples of such a direct democracy. No such government can possibly work in a large community,, and the method of representation has been devised to permit the expression of the popular will. Representation by voting delegates was unknown in the ancient world. In the Middle Ages the imperial free cities sent delegates to the Reichstag ; but they were instructed ambassadors, saying what was put into their mouths by their principals at home. Perhaps the first germs of the true representative system, in which dele- gates once chosen act upon their own judgment, are to be found in the thirteenth century in the introduction of county § 2i] Representative Government. 39 and then of city members into the English Parliament. Even then, for a long time, the intention was to represent inter- ests — land holders, the trading classes, and so on — rather than individuals. Only in the nineteenth century has the principle of representation been pushed to its farthest logical extent, — namely, that every aggregation of a thousand people is entitled to the same representation as every other thousand people in local, state, and national legislatures. 21. English Precedents of Free Government. Popular government, therefore, combines several concep- tions : ( I ) the right and dignity of the individual ; (2) a frame of government which will allow so large a participation as to make the legal sovereign correspond closely to the actual sover- eign ; (3) a restricting constitution to protect the rights of the minority ; and (4) a representative system under which the wishes of a numerous body of persons may be practically voiced. The free institutions of America to-day are often traced to the free customs of the ancient Germans. Our knowledge of the Germans comes almost entirely from a few pages in Csesar's Gallic War, and from an incomplete manuscript of the Ger- ma?uca of Tacitus, who says that " in important affairs all the people were consulted, although the subjects were discussed beforehand by the chiefs." We have no positive evidence that German institutions were conveyed over into England by the Saxons in the fifth century. We know very little of the Saxon governments previous to the Norman Conquest : there were townships with a meeting of freemen ; there were local assemblies, the hundred-moots and the folk-moots (including shire-moots) ; a king who was merely a leader ; later there was a witenagemot, or national council of the great nobles and the clergy. After the Conquest of 1066 appeared the Great Council; but not until 1254 did representatives come from the counties, and not till 1265 from the towns. From that time to the present day, the English Parliament has contained both commons and nobles, and has recognized the principle 40 Fundamental Ideals. [§ 21 of the representation of communities which cannot attend en masse. Up to the Stuarts, ParHament was still much under the control of the crown : Queen Elizabeth once informed the speaker of the Commons that " liberty of speech was not to speak everyone what he listeth or what cometh into his brain to utter." In the seventeenth century, just while the American colonies were being founded, the people of England fought out once for all the question of the divine right of kings as against the right of the people to govern through their representatives ; and the representative House of Commons gradually pushed to the front as superior to the hereditary House of Lords. The Peti- tion of Right of 1628, the various constitutions of the Com- monwealth period, and the Bill of Rights and Act of Settlement of 1689 and 1 701, were more than a defence of personal lib- erty : they clearly defined the supreme power of Parliament, extending even to the transfer of the sovereignty from James II to William and Mary : the right of the king to interfere with members of Parliament for words spoken or action taken in their respective houses was successfully resisted ; the king was compelled to give up any claim to dispense with acts of Par- liament. When the House of Hanover began to reign, in 1 7 14, it found the real authority of the nation expressed by a parliament in which the House of Lords was controlled by a small number of noble Whig families, and the House of Com- mons was made up of elected representatives, a majority of whom owed their seats to the same influence of the nobles ; but the principle of representative government was still main- tained. With many inequalities of representation, Parliament reflected the public sentiment of thinking men : what England sincerely wanted. Parliament would do. In the course of their struggle of five centuries, the English people gained the following distinct principles of free govern- ment : (i) the right of the people to be represented in Par- liament; (2) the right of Parliament to pass acts which after 1707 the king must sign; (3) the right of Parliament §22] English Precedents. 41 to lay or to withhold the only taxes which might be collected of subjects ; (4) the right to supervise the royal accounts and to impeach royal ministers who acted contrary to the law ; (5) the right of members of Parliament to express their minds in Parliament without responsibility elsewhere. English local government during the two centuries of colo- nization in America was of three kinds: (i) the cities, in which the right to participate in the government was always limited, and in some cases enjoyed by very few persons ; (2) the counties, in which there was no popular govern- ment at all, the authority being the court of Quarter Sessions, a body of county gentlemen who acted as local judges and also as administrators; (3) the parishes, in none of which was there a representative government, and in few of which was there a general meeting of voters ; many were governed by a small board made up of a few people of consequence in the parish and filling its own vacancies. Yet the desires of those t'n the community who had an interest in public affairs were feirly met by their system of local government. 22. Colonial Precedents of Free Government. For the American colonist, the foundations of his system of government were the institutions of his native country. No significant influence came upon America from any other coun- try than England : the French, Swedish, and Dutch settlements, which were eventually incorporated into the colonies, were too small and had too httle self-government to affect the course of development. Yet in a century and three quarters of coloni- zation, many changes came about in the new governments, for the colonists were placed in a position where they had to act for themselves or be swept out of existence. The conditions of life in a new country made some parts of the English system inapplicable : for instance, since there were no large cities, there was little city government. The colonial communities were also large enough to assume some functions of government which in England could only be exercised by Parliament. 42 Fundamental Ideals. [§ 22 It was not in the minds of the first settlers to found govern- ments at all : they were organized as commercial companies, having seats in England, with charters like those of other commercial companies of the time ; the stockholders of the company held annual meetings — the so-called General Courts — at the seat of the company in England. The London Company, which founded the colony of Virginia in 1607, was very like the East India Company, chartered in 1600.; and until 1 6 19 it did not recognize any right of self-government among the colonists. Even the colony of Plymouth was founded as a commercial fishing venture, the colonists for some years acting as a company, with all the property in common. Colonial conditions speedily compelled a different form of government. In 16 19, as a later royal governor said, "Repre- sentative government broke out in Virginia," by the calling of a delegate assembly from the planters. In 1630 the Massa- chusetts colony deliberately transferred its charter to America and held company meetings there, to the surprise and wrath of the royal government. The people of Plymouth and of Massachusetts settled separate villages, each of which speedily began to take action in its own local affairs upon the model of parish meetings in England. The scattered planters of Vir- ginia and Maryland organized county courts of Quarter Ses- sions, such as they had known in England. Thus, within a few years from the planting of the first colonies, they began to set up colonial and local governments not distinctly authorized by England. The home authorities, however, accepted the situation by permitting the people of Plymouth for seventy years to carry on a government without a charter ; they recognized the acts of the Massachusetts government; and in 1632 they admitted the right of representation by granting the charter of Mary- land, in which the proprietor was expressly authorized "to retain, make and enact laws of what kind soever, ... for and with the advice, assent and approbation of the free-men of the whole province." § 2 2] Colonial Precedents. 43 The type of colonial government was the same in the three so-called " charter " colonies ; in the three proprietary colo- nies ; and in the seven provinces having no written constitu- tion, but by the instructions to their governors recognized as self-governing. It included three main factors : — (i) The royal governors, corresponding to the sovereign in England, with large personal dignity and considerable powers of appointment and general administration, acting under directions from England, and armed with an effective veto on the action of the legislature ; Rhode Island and Con- necticut had elective governors. (2) The legislatures, in general composed of two houses. The upper council, appointed by the crown (except in the charter colonies), was at the same time an administrative body, a high court (in several colonies, the highest court), and also a part of the legislature, in all three respects corresponding to the English House of Lords. The lower house, or assembly (in Massachusetts called the General Court), was composed of elected representatives. The legislatures passed laws, sub- ject to the veto of the governor; but even if he approved, the laws might still be disallowed by the home government. Colonial legislatures had abundance of interesting business : they made the criminal laws, and provided for property and other legal relations. (3) The courts, composed of judges appointed by the crown or governors, but paid by the colonial assemblies. From the decisions of the higher colonial courts there was appeal to the Privy Council in England, acting as a judicial body. In form the governors, the legislatures, and the courts were all subject to the English government. That control was very imperfect ; first, because under the English theory the colonies were governed by the crown and not by Parliament (until just before the Revolution, Parliament never passed any statute specifically altering a colonial government) ; in the second place, the colonies were far away, and England was much 44 Fundamental Ideals. ' [§22 occupied in the eighty years before the Revolution with Euro- pean and naval wars ; hence the Americans were allowed to care for themselves in most important matters, — they laid their own taxes, they made their own Indian wars, they legis- lated on many questions of personal right. The suffrage in the colonies was much restricted. In Massachusetts and New Haven, in the earlier years, nobody could vote but a church member, that is, a Congregationalist ; later, in all the colonies there was a property qualification, usually the ownership of land, sometimes the additional pay- ment of taxes. The forty shilling freehold, or ownership of land worth two pounds a year rental, was the usual condition of county suffrage in England ; a similar condition applied to the colonies where land was cheap, was easy to satisfy ; and hence, without a change of principle, the suffrage was much enlarged. Still, the number of voters in proportion to the population, up to the Revolution, was not more than a third or a fourth as many as at present ; the majority of the adult men were not voters. In local government, again, the colonies applied familiar in- stitutions but expanded in unexpected directions. The parish meeting in England was a small affair ; in the New England colonies, where large communities settled within sound of the same church bell, the town-meeting became an intelligent and active little popular assembly. Down to the _^Revolution, and even to the present day, the town-meetings of rural towns were effective forums for the discussion of public questions ; and the participants had a good political education, dealing with such ordinances as the following : — " It is voated and ordered that from and after ye first day of aprill next Noo Geese shall be Lett goe vpon the Common or in the highways nor in the water with in this Township of Prouidence or with in the Jurisdiction thereof nor vpon any other persons Land Excet those that one the Geese : on the pennilty of the forfiture of all such Geese that are so found." "Mr. Jonathan Spreague Junr Js Chosen deputy to serue § 23] Earliest State Constitutions. 45 att the next Genr. Court of Accembly to be held att Newport Jn this Jnstant June Jn the Roome of mr. Andrew Harris." In the Southern colonies, where there were no villages, but the people settled on plantations most of which had a tide- water front, such popular gatherings were impossible. The local government was a select vestry of the parish, — a self- perpetuating body after the English model, — and for the counties the court of Quarter Sessions, a body of appointed local legislators, also on the model of the English shire. In all colonial history, the only city charters of much impor- tance are the Dongan charter of 1684 for New York, and Penn's charter of 1691 for Philadelphia. The criminal law was as frankly cruel in the colonies as elsewhere ; but the poorest individual had a good opportunity of bringing his grievances to the attention of the men of power ; and, upon the whole, life was freer and opportunities were better than anywhere else in the world. 23. The Earliest State Constitutions. The experience of the colonial government made the Revo- lution possible, for it gave opportunity for the x'\merican people to organize new governments which could better provide for the needs of the people. In 1775 the old colonial governments suddenly collapsed, because the people drove the royal governors out : thus, the provincial courts of New Jersey declared that their governor, William Franklin, ought not to be obeyed, and that all pay- ments of money should cease. In a few of the colonies, as Massachusetts, the old assembly kept up its functions ; in others, irregular revolutionary conventions or congresses took 3ver the direction for the time being. Until November, 1775, all the colonies professed still to own allegiance to the crown ; but, on November 3 and 4, Congi^ss passed a vote advising the people of New Hampshire and South Carolina to establish governments for themselves, and promised military force in their defence. Thereupon began the era of written state con- 46 Fundamental Ideals. [§ 23 stitutions. The word " state " had sometimes been applied to the colonies, and was adopted by all the new poHtical units except the "commonwealths" of Massachusetts, Pennsylvania, and Virginia. For the organization of state governments the precedents were those of the existing English and colonial governments ; but they took care to formulate their principles of government in written documents, very brief at first, but afterwards ex- tended into the type of the present state constitution. First in time was the vote of the New Hampshire Convention : " In Congress at Exeter, January 5, 1776, voted, that this colony take up civil government in this colony in the manner and form following." Ten other states, from 1776 to 1780, framed regular constitutional documents. The charters of Connecti- cut and Rhode Island were already so liberal that with very slight changes they answered for many years as state consti- tutions. The original state constitutions usually contained two parts : (i) A statement of the rights of individuals, which practically repeated, and often used the phrases of, the English docu- ments of personal liberty from Magna Charta down, and of the American Declarations of Rights of 1765 and 1774. The bills of rights in general recorded the doctrine of the social compact, — namely, that government rests upon the actual or tacit consent of the governed ; they asserted the great rights of free speech, of speedy and fair trial, of taxation only through representation ; one clause in North Carolina even went to the prohibition of perpetuities and monopolies. It was not the conception of the framers of these constitutions that the rights formulated were the only rights of men or were created by their enactments : they held them to be in- alienable, founded in human nature and the experience of mankind, and inserted in the constitutions only for their better safeguard. (2) The second part of the early constitutions was a frame- work of government, usually expressed in very brief phrases. § 23] Earliest State Constitutions. 47 With one exception, they provided a single governor, but shorn of many of the powers enjoyed by the colonial governor ; and judges, in some cases appointed by the governor, in some cases elected by the legislature. This balanced government of three departments was founded on colonial practice, still prevails in every state, and was adopted in the later federal system. The suffrage was continued much as before the Rev- olution, with a property qualification and a consequent small electorate. Three of the new constitutions, Vermont, Penn- sylvania, and Georgia, made the experiment of a single house, which was soon abandoned. In general, few restrictions were put upon the legislative authority, and it was everywhere ac- cepted as a principle that the legislatures could exercise any powers not expressly forbidden in the text of the constitution, or contrary to traditional right. Of the eleven new constitutions, ten were put into force by the congress or convention which drew them, and which represented the sovereign authority of the people ; but those conventions were also the legislatures of the time. Massachu- setts worked out a different system: in 1778 the constitution framed by the legislature was submitted to popular vote and failed; in 1780 Massachusetts called a convention expressly to frame a constitution, which took effect only after a popular majority ; and most constitutions since that time have been framed in the same manner. One defect of the early consti- tutions was that few or none made distinct provision for later amendment ; nevertheless each of the first series, except that of Massachusetts, was replaced within about twenty years by a new, complete constitution. This era of constitution-making deserves analysis. Its sig- nificance was : ( I ) the consciousness that the constitutions must have a written basis and clearly restrict the governing authorities; (2) the conception that the making of a consti- tution was a slow affair which required special attention, and eventually that a constitution ought to be framed by a special convention and then ratified by popular vote ; (3) though the 48 Fundamental Ideals. [§ 24 suffrage was limited, the form of government was very demo- cratic, for the largest governing power was the elective legis- latures, balanced and checked by an executive and by the courts ; (4) the constitutions included elaborate statements of the rights of the individual, rights preceding and independent of government; (5) the written constitution was considered to be a law of a superior and more permanent character than any ordinary statute. 24. Genesis of the Federal Constitution. Federal government was nothing new in history in 1776 :• the Greeks had many federations ; the Latin tribes had a fed- eration ; the mediaeval, Italian, and German cities developed federations; and in 1787 there were in existence three living, though decaying, forms of federal government, — the Holy Roman Empire, the Swiss union, and the United Netherlands. From 1643 to 1684 America had the experience of the United Colonies of New England, formed so "that as in Nation and Religion, so in other respects we bee and continue one " ; but that federation had for a century been almost forgotten, and had no influence on our present federal union. The real forerunners of the constitution of 1787 were the various forms of colonial union from 1690 down: congresses of governors or other representatives of the colonies were held from time to time, usually to discuss joint Indian treaties ; many statesmen, including King William III and William Penn, suggested permanent forms of colonial union; in 1754 a con- gress at Albany recommended a plan of union, drawn up by Benjamin FrankUn, in which the votes would have been pro- portioned to the population of the colonies; in 1765, the Stamp Act Congress, with delegates from nine colonies, acted as the mouthpiece of discontent against taxation, and adopted a ringing statement of the rights of colonists. All these meetings were occasional or undefined ; but in September, 1774, delegates of twelve colonies met at Philadel- phia, and speedily took the name of " Continental Congress." § 24] Genesis of Federal Constitution. 49 They met simply to protest, and adjourned after preparing spirited appeals to the king and the British people, and draw- ing up the so-called " Association," or agreement not to import British goods. The Second Continental Congress met May 10, 1775, after war had actually broken out at Lexington and Concord. Like its predecessor, it was made up of members springing from irregular congresses and conventions, representing the revolu- tionists in the various colonies ; and not a single member had instructions which justified him in aiding to organize a govern- ment. Nevertheless, in the face of the difficulties before it, the Congress accepted the responsibility of organizing a military, naval, financial, and diplomatic service. The powers of the Continental Congress were, however, never defined except by practice. It raised armies and navies, borrowed money, com- missioned ambassadors, made treaties, issued paper notes, and took charge of territory and Indians, simply because there was nobody else to perform those services for all the colonies. From the first it was expected that a written federal consti- tution would be drawn up. The Declaration of Independence, July 4, 1776, made the necessity for a closer form of union greater ; and Congress from time to time discussed articles of confederation, and finally submitted them in November, 1777. The states were slow in ratifying, principally because the Articles of Confederation did not give Congress control over Western territory; but on March i, 1781, the last ratification by a state legislature was communicated to Congress, and the Articles of Confederation went into force, superseding the vague and changeful authority of the Continental Congress. The government under the Confederation was brief and un- satisfactory. Congress ceased to sit in October, 1788, less than eight years after the Articles went into effect. Congress did not have powers to lay taxes directly, or to regulate com- merce between the states or with foreign nations ; and the feeble executive and judicial officers were all appointed by and responsible to Congress. Nevertheless, the Confederation was 4 ^o Fundamental Ideals. [§24 on the whole a successful experiment in government : it had powers never before distinctly granted by a federal constitu- tion ; it could assess sums of money upon the states ; over the Western lands it assumed necessary powers not granted, and it passed three ordinances for their sale and government ; it suc- cessfully negotiated with Great Britain the treaty of peace of 1783, and several commercial treaties. Above all, the Con- federation was a profound lesson to the people of the United States of the necessity of yielding greater powers to a general government, if the country was to take its place among nations ; and it was a nursery for later statesmen, — Hamilton, Jeffer- son, Madison, and Monroe were all members of Congress at one time or another, and learned to understand its workings. After the pressure of war was taken off in 1783, the workings of the Confederation government showed that a stronger national authority was necessary. That stronger authority was furnished by the Federal Con- vention of 1787, which was suggested as far back as 1780, strongly advocated by Washington in public and private let- ters, formally urged by the legislature of Massachusetts in 1785, and definitely proposed by a preliminary convention at Annapo- lis in 1786. The Convention was organized on a plan which still remains the best for such a work : it was composed of delegates appointed solely for the purpose of framing a new constitution, and it included a body of practical men, most of whom had seen service in both colonial and state governments. By the use of their experience, and by the constructive genius of men like Washington and Madison and Hamilton and Roger Sherman and Charles C. Pinckney and James Wilson, the con- stitution was so made as to answer to the needs and purpose of the United States then and for the century since. Mr. Gladstone has called the federal constitution "the most wonderful work ever struck off at a given time by the brain and purpose of man." Mr. Gladstone was mistaken : the federal constitution is not a creation, but simply the re- corded and well-arranged statement of what experience showed § 25] Unity. 5 1 to be the safest method of governing the American states. The fathers of the constitution appUed the experience of Eng- Ush government from the Conquest to the time of the Revolu- tion, the experience of the colonies, the fresh experience of the new states, the experience of the Confederation. The president was a larger state governor, his veto was taken almost verbatim from the Massachusetts constitution ; the Supreme Court was on a larger scale the colonial and state courts and the English Privy Council acting on appeals ; the Senate was the old colonial council expanded ; the House of Representatives was the colonial and state assembly over again ; the constitution was simply the crystallization of cen- turies of actual practical experience of free and representative government, adapted to the needs of a federal republic of immense area and possibihties. 25. Unity of American Government. Since the federal constitution applies to the whole United States, and since the general government is powerful and im- presses the imagination, Americans have come to look upon the federal constitution as the one national constitution, and upon the states and their constitutions as subordinate. Such was not the conception of the fathers of American government, nor is it the actual system under which we now live. There is no national union without states, and equally there are no states without union ; there is no town, city, or county, except as a part of a state or a territory. The correct view of Ameri- can government is that every form of government, national, state, or local, emanates from the same authority, — namely, from the people of the United States. The fundamental basis of American government is the right of a people to organize and form governments for themselves. Organization of state governments preceded the formal organization of a national government; and hence the federal constitution throughout presupposes the existence of states, but of permanent states which shall thereafter remain in the Union. The original state 52 Fundamental Ideals. [§25 governments were framed with the expectation that there would also be a national system, and with the intention to continue a system of local governmental units. From the beginning, the Americans had been accustomed to the control of England over their governors, their legislatures, and their courts ; and hence they saw no loss of liberty in the submission of state governors, state legislatures, and state courts to a central authority springing from the whole nation ; and they expected to control their' own towns, counties, and cities. Ill ratifying the federal constitution, every state thereby con- sented to a modification of its own constitution : when, for in- stance, they agreed that the United States have the sole power to make treaties, they formally abjured authority to make treaties ; when they adopted the federal power to lay taxes, they tacitly agreed that state taxes should not interfere. The principle of American government is, each for all and all for each. In this sense, the people of Massachusetts in 1787 helped to modify the state constitution of North Carolina, and the people of Georgia helped to lay restrictions on the commonwealth of New York. Whatever the historical theory as to the origin of the Union, in practice there is only one source of authority, one form of government, and one group of fundamental powers. The source is the American people as a whole, who alone have the power, through a complicated machinery, to alter the federal constitution and thereby may alter their state constitutions, their city charters, and their local governments ; the state govern- ments and the local governments are not separate from each other or antagonistic to each other, — they are each other, in that they are bound by the same system of law and tradition. The one form of government is the whole body of govern- ing officials, organized into three great groups, — a national service with its administrative center at Washington, state staffs centered at the various state capitals, and local meetings or bodies, each acting in and for its own place. The president of the United States is no more independent in his authority than the governor of a state or the mayor of a city : they are §26] Separation of Powers. 53 all parts of one system, all subject to the restrictions of the federal constitution, all acting under a body of tradition in which each must respect the prerogatives of the other. The one group of fundamental powers is all the powers inherent in any government, less a few restrictions expressed in the federal constitution. In practice, however, the nation, states, and local governments are to a large degree set off from each other through their functions. 26. Separation of Powers. In a centralized country like France, the unity of govern- mental power is more clearly seen because there are no states, and the localities are directly subject to the central authority. In the United States the exercise of power is decentralized through two great restrictive principles which seem to be inbred in American life — separation of powers and division of powers. The first of these restrictions is the separation of powers, or, as it is often called, " checks and balances." In England, after the Norman Conquest, royal power was mihtary, and the king was at the same time the source of law, of adminis- tration, and of justice. Gradually Parliament grew up to power, till, after the last royal veto was written in 1707, it became the sole legislative authority. By the Act of Settle- ment of 1 701, the judges got a tenure during good behavior, and the courts became free from royal interference. Hence the great French publicist, Montesquieu, in his famous book V Esprit des Lois, published in 1748, thought that he had discovered in England a system by which the legislature made law : the king could not make it, but could execute it ; and the courts could neither make nor execute laws, but could apply them to specific judicial cases ; thus each of the three departments of government was a check upon the other. As a matter of fact, there has never been such a subdivision in England : when Montesquieu wrote, the king had become inert, the judges could not hold the acts of ParHament void, 54 Fundamental Ideals. [§ 27 and Parliament was already the great motive force, as it still remains. The American colonies practically had this subdivision of powers : the governor could check the assembly, and the assembly could check the governor ; and the courts to some degree could check them both. Our forefathers liked that system, and they incorporated it into their state constitutions ; but the Confederation was organized virtually on the parlia- mentary plan, — its executive officers were appointed by Con- •gress, were responsible to Congress, removable by Congress, and Congress also set up and pulled down courts. This is practically the sole experience within the United States of a system of parhamentary responsibility, and it was completely disrupted by the federal constitution. In 1787, separation of powers was formally introduced into the federal system : a Congress with large law-making powers was created ; a presi- dent was provided, neither elected by Congress nor responsible to it ; a system of courts was set up to apply the federal law, and very soon to lay down the mighty principle of its right to hold statutes invalid. 27. Division of Powers. The second great American principle of government is the division of powers between the nation and the commonwealths, and within a commonwealth between the state and local au- thorities. The fundamental principle of our federal govern- ment is that the inherent sovereign powers in the community are normally exercised through the state governments, and there- fore that any residuum of power is left to the states and not to the Union. Under our system of fixed and rigid constitu- tions, the division of powers is expressed, first, in the federal constitution, and then in the state constitutions ; and disputed questions must usually be decided by the courts. Therefore, if we wish to know what in practice are the limits between national and state powers, and also between powers exercised directly by the states and indirectly by the local governments §27] Division of Powers. ^^ springing from the states, we must search the recorded judicial decisions. To the national government, and hence to the national offi- cials, are committed the immense powers of war and peace, finances for national purposes, foreign relations, control over all territory not actually organized as states and over all com- merce which does not begin and end within the boundaries of a single commonwealth. The larger body of legislation is left to the states, which regulate most of the relations of individual to individual, which create and regulate corporations, which have control of property rights, land tenure, inheritances, education, and religion, supervise by far the greater volume of all business and commerce, administer almost the whole of criminal law, and care for the weak and dependent. In most respects the states come nearer to the individual than does the federal government. Local governments are less separated from the state govern- ments than the states from the national government, because their form is entirely dependent upon easily alterable state legislation ; but the habits of the people are such that all the states practically concede to the localities and to the cities the immediate personal care of the population. In their hands are the streets, water, lighting, education to a large degree, many dependent classes, local transportation, and the main- tenance of public order. To sum up, questions of health, cleanliness, and morality, the questions which most closely and most frequently touch the individual, are given to the local governments ; business and criminal relations to the states ; national defence and foreign relations to the nation. The national control of foreign and interstate commerce makes the division of commercial powers indefinite and disputed. 56 Fundamental Ideals. [§ 28 28. The Written Constitution. One of the strongest parts of American government is the respect for written constitutions. The constitution of a coun- try is really its method of working : the so-called " principles of the British constitution" are nothing more than the gen- erally accepted ideas as to what the government of Great Britain ought to undertake, particularly as determined by the historical knowledge of what it has undertaken. We Americans use the term in a somewhat different sense. By "constitution" we mean a specific written instrument defining the government ; and an executive or legislative act is unconstitutional if contrary to the terms of that instrument. The five elements of the fundamental conception of our con- stitution are, that it is definite, comprehensive, supreme over all other forms of written law, fundamental, and alterable only by a special process. ( 1 ) The first of these principles is very ancient : the Ten Commandments, the twelve tables of Roman law, the capitu- laries of Charlemagne, were put in writing or graven on tables in order that men might know the law and thus obey it, and that the law might be preserved as it was uttered. (2) A good constitution must cover the whole field of gov- ernment, at least in general terms. Laws which relate to prin- ciples of great importance often get to be regarded as almost irrepealable : thus the organization of the Roman assemblies was crystallized by a succession of venerable statutes ; in the Middle Ages arose the system of granting imperial and royal charters to individuals and to cities, universities, abbeys, and other corporations, in which charters often a detailed form of government was laid down. These documents probably sug- gested the similar charters of the early American colonies ; but they were all partial, incomplete, and depended on a higher authority than their own. (3) During the English Commonwealth the idea was thrown out, perhaps because of the influence of American governments, § 28] Written Constitution. ^y that there ought to be a fundamental written instrument, superior to any act of Parliament. In 1647 the army began to draw up written schemes of government, of which the most important was the so-called " Agreement of the People," issued in 1649. It declared itself to be intended "for a secure and present peace, upon grounds of common right, freedom, and safety " ; it reformed the representation, by apportioning it ac- cording to population ; it fixed the electorate, established a council of state, and contained liberal provisions with regard to religion ; it gave to the representative body " supreme trust in order to the preservation and government of the whole " ; . . . except that six Particulars " are, and shall be, understood to be excepted and reserved from our Representatives." This constitution was never put into force ; but in Decem- ber, 1653, a so-called " Instrument of Government " was drawn up, because, as Cromwell said, " In every government there must be somewhat fundamental, somewhat like a Magna Charta, which shall be standing, unalterable." This is the only writ- ten constitution which has ever prevailed in England, and it came to an end with the death of the Protector, in 1658. The idea of a superior written law was clearly revived in the Habeas Corpus Act of 1679, the Bill of Rights of 1689, and the Act of Settlement of i 701, though in theory those acts were all revocable. The best examples of written constitutions in this period are the royal charters of the three New England colonies, and the famous Fundamental Orders, drawn up by the people of Connecticut in 1638, which is the first well- articulated constitution ever made by representatives of a popular community for their own government. When the Revolution broke out, the states made documentary consti- tutions for themselves. The Articles of Confederation were intended to be a national constitution, and have three of the characteristics already mentioned : they were fixed in writing, superior to statutory law, and required a special process for amendments. To carry out the third criterion of a written constitution, — 58 Fundamental Ideals. [§ 28 that it shall be superior to other laws, — is a hard thing in a federation where there are several forms of law. A prime difificulty of the Confederation was the lack of a method by which the supremacy of the federal constitution could be asserted over state constitutions. The constitution of 1787 distinctly reformed that difificulty by a clause providing that " This Constitution and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the Supreme Law of the land ; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Under the federal constitution has been created a hierarchy of laws. First and supreme is the constitution of the United States ; second, come federal treaties and laws, consonant with the constitution ; third in efificacy are the state constitutions, which must conform to the federal constitution and also to consonant laws and treaties ; fourth, comes state legislation, which must not be in contravention with either one of the three higher forms of law ; fifth, come the ordinances of local and municipal governments, which must not go beyond any of the four higher forms of law ; sixth, come the by-laws of corporations of every kind, such as universities, commercial companies, benevolent societies, all of which must not go con- trary to any of the five higher forms already mentioned. (4) A good constitution must be brief, or else it becomes a code of laws. The original federal constitution has 4,000 words, and may easily be committed to memory by any quick student ; the state constitutions vary in length, the first New Hampshire constitution of 1776 having 900 words, and the Louisiana constitution of 1898 having 40,000 words. In gen- eral, the longer and more detailed the text of the constitution, the more opportunity for dispute about its meaning. The increase in length is due to the habit of looking upon a consti- tution as superior to a law : conventions insert in a new consti- tution anything that it is desired to put beyond the power of § 29] Constitutional Amendments. 59 legislation ; hence the constant tendency is to increase the prohibitions and limitations in the written constitution, and thus to tie the hands of pubhc officials for the time being. 29. Preparation of Constitutioual Amendments. The fifth criterion of a written constitution is that it be sub- ject to a special form of amendment. Though in some Euro- pean countries constitutions are enacted like ordinary laws, a special method is essential if the distinction between ordinary statutes and a supreme constitution is to be observed. Effi- cient methods of constitutional amendment must call for special consideration, must attract public attention and invoke public opinion ; for a poor constitution once adopted cannot easily be changed. The federal constitution provides two different methods for its own amendment. The first is the calling of a convention, similar to the Philadelphia Convention of 1787, on the appli- cations of the legislatures of two thirds of the states ; it has never been employed, although there was a movement for a convention in 1788, and in 1861 there was strong pressure for a convention to find a means of obviating the Civil War. The ordinary method for the submission of federal amendments is a concurrent vote of two thirds of both houses. Hence the initiative of amendment may be taken by states through their senators, or by any membei of either house who cares to sub- mit a joint resolution. In the first century of the federal government, more than 1,900 amendatory resolutions were submitted, many of them including more than one clause. Out of all those 1,900, only nineteen have ever received the adhesion of two thirds of both houses, of these only fifteen have actually been added to the constitution, and these fifteen are the result of two periods of discussion, 1787 to 1802, and 1865 to 1869. In the states the submission of separate amendments is much more common, and complete revisions by conventions ap- pointed for that purpose are also frequent. Various methods 6o Fundamental Ideals. [§ 29 of amendment are prescribed by the state constitutions. In some states, no amendment can be considered which has not been recommended by two successive legislatures ; another method is to require a special majority in each house, some- times as many as three fourths of the members ; in some states, amendments cannot be submitted oftener than once in a fixed number of years ; in a few cases commissions have been created to draft a constitution and report it to the legislatures. In Delaware, the legislature makes constitutional amendments, but only after a previous legislature has voted them and a new election has been held. The most common method is that amendments shall be approved by a special majority of both houses, and thereupon submitted to the people for their rati- fication. No complete constitution has been drawn up by a state legislature since 1778, with one exception, — Nebraska in 1866. A constitution loses coherence after it has been several times amended, and the growth of the community sometimes requires a new statement of principles. In some states conventions must be called at fixed intervals, usually about once in twenty years. Conventions have rarely any other functions than to prepare revised constitutions, and the members are chosen by special election. Men will attend a constitutional convention who would not give their time for service in the legislature; hence the personnel of the convention is usually higher, and it is more accustomed to defer to the expert authority of jurists and public men. A convention sometimes sits for months, and usually submits its work as a whole, sometimes setting apart for a special popular vote some clause upon which the whole constitution does not depend. For instance, the New York Convention of 1894 subjected to separate votes clauses on apportionment and canal improvement. From 1792 until near 1890, about a fifth of the new constitu- tions were put in force by the fiat of the convention. Neverthe- -^ess the attempt in 1858 to admit Kansas as a slave state, under § 3o] Constitutional Amendments. 6i a constitution which had not been completely submitted to popular vote, was thought to be a violation of the dearest rights of the American people. However, since 1890, conventions in Louisiana, South Carolina, and Virginia have assumed the right to declare a new constitution in force without a popular vote, for the simple reason that the voters under the old constitution, if they had been consulted, would have shown a considerable majority against the new constitution; and such action is legal if the previous constitution does not require a popular vote on amendments. 30. Ratification of Constitutional Amendments. Both separate amendments and complete constitutions usu- ally require popular ratification after they have been formu- lated by a legislature or by a convention. Every amendment to the federal constitution has received formal ratification by the state legislatures in three fourths of the states : but the con- currence of sixty-eight legislative houses in thirty-four states is a degree of agreement almost impossible except in the face of a manifest public danger. Out of the series of twelve amend- ments submitted by Congress in 1789, only ten got the three- fourths majority ; the Eleventh Amendment — on the judiciary — passed both houses almost unanimously in 1 794, but was nearly four years in process of ratification ; the Twelfth Amend- ment, submitted in December, 1803, — on the election of the president, — was ratified in nine months. In 1803, President Jefferson urged the adoption of a constitutional amendment covering the annexation of Louisiana ; but he could not even get it introduced. A curious amendment, prohibiting the granting of titles of nobility by states, passed both houses with very little difficulty in 18 10, and got twelve of the necessary thirteen state ratifications. In 1861 the so-called " Corwin Amendment," intended to prevent secession by a compromise, was passed by two thirds of both houses and received the un- necessary signature of the president, but was ratified by only three states, and was speedily dropped. The three great Re- 62 Fundamental Ideals. [§3° construction amendments, the Thirteenth, Fourteenth, and Fifteenth, were ratified from 1865 to 1870 only by great pressure upon the states which had been in rebeUion ; for not one of those amendments could have been adopted without the approval of a considerable number of Southern state legislatures. Since the Fifteenth Amendment, no proposition of amendment has received the approval of two thirds of both houses. In every state except Delaware, single amendments must come before the people. One state, Rhode Island, in which there was no provision for making amendments, was by this inelasticity in 1842 brought to the verge of civil war, and after- wards adopted the usual system of constitutional amendments. The foundation idea of popular ratification is undoubtedly the "compact theory," — that government is founded on agree- ment of the persons governed,' the favoring opinion of the majority being accepted as that of the whole. Nevertheless, a very considerable number of state constitu- tions have been put in force without any submission to the popular vote. In the first Revolutionary series, Massachusetts was the only state to ask for popular sanction. Down to 1897, there had been 132 constitutions framed by conventions, of which 88 were submitted to popular vote and i was submitted to another convention : 43 were declared to be in force by the convention itself; of these, 20 were first constitutions, and 23 amended constitutions. Popular votes on constitutions or single amendments are usually taken at the time of some regular election, and receive less attention than the names of the candidates for office. Amendments to the constitution thus submitted are likely to be adopted ; but sometimes people vote down the whole work of a laborious convention, as in 1854 in Massachusetts. A ma- jority of the votes cast is usually sullficient to make the neces- sary constitutional change. Once voted on, there is no further question of the legality of the amendment, even though the constitutional convention has gone farther than prescribed by the statute creating it: clauses duly submitted and favorably § 3i] Construction and Application. 63 voted become a fundamental part of the constitution. Of course no popular ratification can give authority to a clause in a state constitution which is not in accordance with the federal constitution. 31. Construction and Application of Constitutions. The text of the federal constitution is legally supreme over all other forms of law within the boundaries of the United States : it goes beyond custom ; it supersedes any principle of international law which collides with it; it overrides previous and subsequent state constitutions and statutes ; it controls local and municipal ordinances, and the acts of all corpora- tions, public and private. Nevertheless, few subjects are habitually so much discussed by the courts as the meaning of the federal constitution, and in like manner of state constitu- tions. A constitution, like a statute, is phrased in words drawn up by human and often fallible men ; and there may even be two clauses of a constitution which do not agree with each other. The meaning of the words of a constitution, and espe- cially of the federal constitution, becomes of great importance : for instance, at intervals from 1787 to 1895, the courts have without much success endeavoured to discover what our an- cestors meant by " direct taxes." Yet we must know what the constitution means in order to appreciate the meaning of statutes "pursuant " to the constitu- tion. Every person who is called upon to perform a public act must conform to the federal constitution, but in order to do so he must make up his mind what the constitution means : the president, when he issues an order, thereby assumes that he is acting within the constitution ; the members of Congress in passing on a statute must act within the restrictions of the federal constitution. The courts, and especially the federal courts, are oftenest called upon to apply the constitution, be- cause in private suits their attention is called to rivalries in meaning between that instrument and national or state statutes. Inasmuch as the courts deal continually with vested rights, they 64 Fundamental Ideals. [§ 31 must know the traditional use of language, and the meaning of phrases in a legal sense. To the Supreme Court of the United States in the last instance belongs the mighty office of expound- ing the federal constitution, of showing the adjustment between its parts, and of pointing out in all varieties of law any lack of harmony with it. The general principles of the construction of constitutions and statutes are simple : words are used in their ordinary sense, if it can be ascertained ; where two clauses seem to conflict, the courts will usually so construe the words as to give effect and vitality to the whole ; the intention of the framers may be consulted. The courts, however, take extraordinary precau- tions : they construe constitutions and laws only when they are obliged to consider them in order to decide cases actually before them ; and they apply previous principles, and work out a theory of the constitution and laws, which may be carried forward from year to year. To the federal and state courts, therefore, belongs the general duty of expounding and apply- ing the various constitutions. In the course of a century a body of connected, and on the whole coherent, doctrine has been laid down in court decisions with regard to the meaning of the federal constitution. The state constitutions change more frequently, are much more loosely drawn, and each new one requires a new body of decisions to establish its meaning. Part II. The Will of the People. CHAPTER IV. SUFFRAGE AND ELECTIONS. 32. References. Bibliography: Cyclop, of Am. Govt. (1914), I, 104, 563-565, 730; II> 335) 519; III; 457) 629, 634, 697; F. W. Dallinger, Nominations for Elective Office (1897), 221-224; Channing, Hart, and Turner, Guide (1912), §§ 203, 272; A. N. Holcombe, State Govt. (1916), 483, 485. See also references to ch. iii above. Ideals of Democracy: W. W. Willoughby, Nature of the State (1896), ch. xiv; C. E. Merriam, Am. Pol. Theories (1903); C. W. Eliot, Am, Contributions to Civilization (1897), Nos. 1-6; Cyclop, of Am. Govt. (1914), Art. on Democracy, Hist, of; F. A. Cleveland, Organized Democracy (1913), pt. vi; H. Croly, Promise of Am. Life (1909), ch. ix; B. Wendell, Liberty, Union and Democracy (1906), ch. iv; A. B. Hart, National Ideals (1907), chs. v, vi, xix; T. Jefferson, Writings (Washington ed.), I, i-iio; A. Lincoln, Works (various eds., extracts in Am. Hist. Leaflets, No. 18). The Suffrage: A. B. Hart, Southern South (1910), ch. xiii; W. B. Munro, Govt, of Am. Cities (1916), ch. v.; P. O. Ray, Pol. Parties (1913), ch. xii; E. A. Hecker, Women's Rights (2d. ed., 1914); Cyclop, of Am. Govt. (1914), Arts, on Fifteenth Amendment; Negro Suffrage; Suffrage; Women's Suffrage; E. McClain, Constitutional Law (1910), §§ 198-200; A. E. McKinley, Suffrage in the Colonies (1905); A. N. Holcombe, State Govt. (1916), ch. vi; J. Bryce, Am. Commonwealth (ed. 1910), I, 419; II, 103, 718, ch. xcix; C. F. Bishop, Elections in the American Colonies (1893), pt. i, ch. ii. — Sources: C. A. Beard, Readings in Am. Govt. (1909), §§ 162-164. Elections: J. Bryce, Am. Commonwealth (ed. 1910), II, chs. Ixvi, Ixvii; J. R. Commons, Proportional Representation (2d. ed., 1907); F. A. Cleveland, Organized Democracy (1913), chs. xvi, xix; E. C. Griffith, Gerrymander (1907); C. E. Merriam, Primary Elections (1909); A. N. Holcombe, State Govt. (1916), ch. viii; Cyclop, of Am. Govt. (1914), Arts, on Ballot; Ballot, AustraUan; Election System in U. S.; Election Systems, Comparison of; Vote; Vote, Popular; Voting, Compulsory; C. L. Jones, Readings on Parties (191 2), ch. viii; P. O. Ray, Pol. Parties (1913), ch. xiii; P. S. Reinsch, Readings on Am. State Govt. (1911), 5 65 66 Suffrage and Elections. [§ 33 ch. viii. — Tables of votes, in Cyclop, of Am. Govt. (1914), Art. on Presi- dential Elections; Tribune Almanac; World Almanac; E. Stanwood, Hist, of the Presidency (1916). Popular Votes on Legislation: E. P. Oberholtzer, Referendum in America (191 1), chs. vii-xix; J. Bryce, Am. Commonwealth (ed. 1910), I, ch. xxxix; F. A. Cleveland, Organized Democracy (191 3), chs. xx- xxv; A. L. Lowell, Public Opinion and Popular Govt. (1913), chs. viii- XV, App. B; J. D. Barnett, Operation of the Initiative (1915).; W. B. Munro, Initiative, Referendum, aitd Recall (191 2); W. B. Munro, Govt, of Am. Cities (191 2), ch. xiii; H. Croly, Progressive Democracy (1914), chs. xii, xiii; Bacon and Wyman, Direct Elections and Law Making (1912); Cyclop, of Am. Govt. (1914), Art. on Legislation, Direct; A. N. Holcombe, State Govt. (1916), ch. xiii; C. S. Lobinger, People's Law (1909), chs. xxvii, xxviii; D. F. Wilcox, Govt, by all the People (1912); C. L. King, Initiative, Referendum and Recall (Am. Acad. Pol. Sci., Annals, XLIII, 1912). — Sources: Beard and Shultz, Docs, on the Initi- ative (1912); C. A. Beard, Readings in Am. Govt. (1909), ch. xxiii; jC. L. Jones, Readings on Parties, ch. x. 33. History of Anglo-Saxon Suffrage. ■Representative government necessarily depends on a body of persons having the right to be represented, that is, to vote for representatives. Nobody quite knows who chose represent- atives to the Anglo-Saxon foll<-moot ; but, after the Norman system, first the counties, and then also the cities, had the right to send members to the Great Council. In the English cities, the constituents were the freemen of the city, that is, those who had a membership in the municipal corporation established by royal charter. In the English counties, the suffrage went to the landholders ; and gradually was devel- oped the theory that the necessary qualification was the possession of a forty-shilling freehold, — that is, ownership of land that was worth two pounds a year, which in early times was a high property qualification ; later, ether forms of land- holding were allowed. The American colonists brqught over with them the idea of a limited suffrage, and a suffrage different in conditions for local and colonial elections. In the first half century of colo- nization there was no property qualification, but in Massachu- setts and New Haven none but church members could vote ; § 34] Suffrage. 67 then sprang up the idea that the people who had property should be responsible for the conduct of public affairs ; and gradually, beginning about 1681, the ownership of land, or of considerable personal property, was made a qualification everywhere in the colonies. An acceptance of the principles of the Christian religion was necessary, and Quakers were for a long time excluded. People lost the suffrage for bad charac- ter or behavior, — for instance, " those notoriously vitious or scandalous, as common Lyars, Drunkards, swearers or apos- tates from the fundamentals of religion." The federal constitution very wisely avoided the creation of a uniform national suffrage, by requiring that voters for presi- dential electors and representatives should be the same as those for the most numerous branch of the state legislatures ; hence every enlargement of state suffrage was a corresponding extension of national suffrage in that state. Religious qualifi- cations began to drop off soon after the Revolution ; and after 1 815 property qualifications lost ground, partly because it began to be seen that a man who did not own property had an interest in the welfare of the country, and partly because throughout the Union it was common to create fictitious prop- erty rights, so as to give a poor man the suffrage. After 1830 the coming-in of great numbers of emigrants put a premium on the extension of the suffrage, because it was believed that they would prefer states in which they could easily acquire a vote ; and hence eleven states in the Union still permit a man to vote before he is naturalized. 34. Qualifications for Voting. The theory of representation does not require that every member of the community shall vote, and there are several classes of exclusions, (i) First comes real or supposed in- capacity : children are not independent until the age of ma- jority, of legal change to manhood and womanhood ; and no one votes till twenty-one years old. Criminals, the insane, persons in confinement, are necessarily cut off from the polls. 68 Suffrage and Elections. [§ 34 Paupers in institutions, and in some states those who receive outdoor relief, are excluded from voting, on the ground that a pauper is nearly always a person inferior in mental or moral equipment. (2) The second group of disqualifications is temporary: the almost universal practice is to require a man to reside in a state one year before he can vote, and to reside in a vot- ing district for thirty or sixty days. In England a man may vote in every county and city and university in which he pos- sesses the qualifications there required ; one person has cast thirteen legal votes in the course of a day : in the United States it would be a criminal offence for a man to vote in two residences at the same time. Closely akin to the residence qualification is the requirement that foreigners shall have at least declared their intention to become citizens. (3) A third group of qualifications is material. Though the holding of real estate has long since disappeared as an absolute requisite of voting, a tax qualification still continues in many states of the Union, although it has disappeared in most of the Northern states. There is a small poll-tax require- ment in Pennsylvania, and in many of the Southern states. Most of the richest and most prosperous communities in the United States have abandoned all forms of property or tax qualifications. (4) A fourth group of restrictions is moral and intellectual. In some states those who have been convicted of crime are nominally excluded ; but in practice it is so easy for a man to go to another community that the restriction is of very little account. Those who give or receive bribes are in about two thirds of the states disqualified for a brief time, or permanently ; but the restriction is seldom applied. Religious disqualifica- tions appear in a few state constitutions, which provide that no person shall vote who does not believe in a God and a future life. No states any longer fix a criminal penalty on agnosti- cism or atheism ; under the laws of the United States, however, habitual polygamy, even though claimed to be a part of reli- § 34] Qualifications for Voting. 69 gion, excludes from the suffrage in territories, and this is also the case in Utah and Idaho. Connecticut, Massachusetts, Maine, Wyoming, Washington, and Delaware have each a genuine educational clause, by which, in order to vote, a man must be able to read at least a section of the constitution, and to write — usually his own name : thousands of people will not put their capacities to the test. In Mississippi, Alabama, South Carolina, and Virginia, since 1890, a so- called educational qualification has been inserted into new constitutions, the usual form being that an elector shall be able to " read or understand " the clauses of the state constitution. The real purpose of these provisions is to dis- franchise the negro, since the white election officer is with great difficulty persuaded that any negro '•' understands " the constitution. In four states there exists the "grandfather" clause, — namely, that the educational limitation shall not apply to descendants of a person who was a voter before 1867 or a soldier in the Civil War. This is expressly in- tended to relieve illiterate white persons, and is of doubtful constitutionality. Negroes having the property or tax qualification were allowed to vote in some of the Northern colonies, and in North Carolina until 1835. Several of the Northern states, as Connecticut, New Jersey, Pennsylvania, and the Northwestern states, pro- hibited negro suffrage; as late as 1867 Ohio voted against it by a majority of 50,000. Soon after the Civil War, the suf- frage was conferred upon the negro in most of the new state governments by reorganized legislatures in 1867-69; but it wsLS plain that if the dominant element of the white race re- covered control, the negroes would be disfranchised. Hence, by the Fourteenth Amendment in 1868, the representation of any state was to be diminished if it disfranchised a class of voters. The Fifteenth Amendment, ratified in 1870, went much farther, by providing that no citizen should be deprived of the suffrage " on account of race, color, or previous condi- tion of servitude." By the decisions of the Supreme Court, this JO Suffrage and Elections. [§ 35 clause does not apply to Asiatics ; and the states may, and three of them do, prohibit the voting of members of the Mon- golian race. Notwithstanding this provision, since 1874 the negro has been deprived of the suffrage in most of the Southern states, either by terrorizing him so that he does not offer to vote ; or by devising a system of balloting tending to throw him out on a technicality ; or by unabashed miscount of votes ; or by a com- plicated system requiring tax receipts. The recent Southern constitutions, therefore, are simply a legalization of previous in- direct and often illegal methods for preventing the reception of the negro's vote. 35. 'Woman SufTrage. The non-admission of women to the suffrage was the uni- versal practice in every country having the representative system until about thirty years ago, when some of the Ameri- can territories began a new system. There are now four states, Colorado, Wyoming, Idaho, and Utah, in which women have suffrage ; one, Washington, in which they formerly had it, but have now lost it. In several of the other states, woman- suffrage amendments have been submitted, but have failed of popular approval ; Kansas alone allows complete municipal suffrage ; Iowa and Montana allow a vote on the issue of bonds and like financial questions ; many more allow women to vote for school officers. Twenty-six of the forty-five states recognize the right of women to participate to some degree in the choice of public officers and the decision of public questions. The right to vote usually includes the right to be elected to office : hence, in the full woman-suffrage states, women fre- quently sit upon juries ; where women have school suffrage, they may be and sometimes are elected local and state super- intendents ; where they have municipal suffrage, as in Kansas, wornen are sometimes elected mayors ; and in all the states women are occasionally appointed to executive boards, partic- ularly those relating to charities and corrections. §36] Woman Suffrage. 71 The main argument in favor of woman suffrage is that there is no logical reason for discrimination : if the suffrage is a duty, women ought to perform it ; if it is a privilege, they ought to enjoy it ; if it is a means of education, they ought to profit by it. The experience of woman-suffrage states is, however, that though the presence of women at the polls tends to take away roughness and violence, the interest of women in elections is smaller than that of the men, and after a few years only a small proportion of them vote. This is notably the case in school elections in states where women have school suffrage, luuugh in Boston and Cambridge the woman vote appears to hold the balance of power in the election of school committees. The principal arguments against woman suffrage are, first, that women have domestic duties which are not consonant with public service ; and, second, that it is convenient to have a select electorate, and that the voting of women does not make any permanent and significant difference in the outcome of parties, while it does create a new responsibility for women. Although full woman suffrage is now making way in the North- western communities, many of which have few women in proportion, it has for many years made no gain in the older communities. On the other hand, school, municipal, and tax suffrage, though widely extended, have not interested women so much as was expected. 36. Electoral Districts and Registration. Before votes can be cast, two preliminaries are common, — districting and registration. The administrative subdivisions of the states and territories constitute the districts for the choice of the more important ofiicers ; counties make dis- tricts for the choice of county officers, cities for the election of city officers ; but for the choice of members of Congress and of state legislatures, the states must be subdivided by the legislatures, and this gives rise to the practice known as the "gerrymander." Acts of Congress of February 2, 1872, and January 16, 1901, provide that the districts for the choice of 72 Suffrage and Elections. [§ 36 representatives shall be composed of contiguous and compact territory as nearly equal in population as possible ; but the rapid growth of population quickly disturbs the most careful apportionment, and legislatures frequently subdivide in irreg- ular fashion, so that one party shall have a small majority in many districts, and the other party shall have a large majority in fewer districts. By this process it is possible to give the minority more members than the majority: thus in 1893 one Connecticut congressional district had 122,000 inhabitants, and the adjoining district had 249,000 ; Chicago, with about one third of the population of Illinois, had only one fifth of the members of Congress. This process is freely applied also in state elections: in 1891 the Supreme Court of Wis- consin annulled two state apportionment acts in succession because in absolute defiance of the state constitution, and the legislature had to be called to pass a third act. The process of gerrymandering is a denial of the true system of popular government. In colonial times, all the people of a town or a county as- sembled to cast their votes ; but at present in every state small subdivisions are provided, for two reasons : first, in order that voters may know each other's faces and thus detect fraud ; and second, that there may be time enough to get in the whole vote in one day. In New York City there are nearly 1550 such voting precincts, or about 400 voters to each precinct. The unwritten, but nevertheless almost universal, rule is that for any elective office a man must live in the district in which he is chosen. In Germany or England or France any qualified person may be elected to the national legislature from any district, and this gives an opportunity for young men to win their spurs by contesting close districts, and also makes it possible to keep in public life, eminent men whose home dis- tricts support the other party. In America every councilman must live in his ward, every state representative in his county or town, every congressman in his district ; and the gerry- mander is frequently so employed as to throw the residence of § 37] Districts. 73 a public man into a district which is hostile to him politi- cally. Thus in 1890 the Ohio legislature made a majority against Mr, McKinley, and he lost his seat in the House of Representatives. In about two thirds of the states in the Union there is a system of registration before elections. The advantage is that it gives time beforehand to settle contested questions as to a man's fitness to vote, and to identify him beforehand so as to detect him if he represents another voter ; it also offers means of preventing some forms of frauds in the count of votes. There are two systems of registration. Of the first of these, New York is a type : a man must every year present himself, usually in person, and see that his name is recorded ; no name can legally get on the list unless it is demanded by the voter. The other system, employed in Massachusetts, Pennsylvania, and many other states, puts a man who has once qualified per- manently on the list, until some reason is given for striking him off; this leads to dangerous frauds, because false names go on and names of dead persons are not expunged. In some cities scores of thousands of illegal registrations stand from year to year, and are voted by repeaters who go from ward to ward. Of course the annual registration practically requires a man to appear twice, once to register and once to vote, and therefore probably somewhat reduces the vote ; but preliminary regis- tration is in cities the only possible safeguard against illegal voting on a large scale. 37. Methods of Voting and Count of Votes. The usual method of voting in England down to 1872 was viva voce, a system which made public the voter's preferences, and which could not be applied at all in elections for a large list of officers. In the state of Kentucky, until the new constitution' of 1891, some of the elections in rural communities continued' viva voce .- in Jackson County, for instance, the election for sheriff consisted in arranging the friends of one candidate on horseback on one side of the road and the friends of the other candidate 74 Suffrage and Elections. [§ 37 on the other side, and the longest line got the election. At present in every state all elections must be by ballot ; first, to make possible a secret vote, and, secondly, to preserve the evi- dence of the vote cast. Originally the ballots were written ; then it was found that the candidate had a better chance if his friends provided printed tickets beforehand ; then, as the practice developed, tickets were prepared for a long list of candidates, the parties fre- quently adopting devices or colors which made their ballots known. If a man did not wish to vote for everybody on the ticket, he erased names, or substituted other names ; this was called "scratching," "splitting," or "cutting." In practice the ballots ceased to be secret, since the party tickets were usually recognizable even when folded ; and frauds were often practised by printing under the party heading a ticket which contained candidates of the other party. In 1888 began a great reform, which has swept over most of the country, — the so-called " Australian ballot system," under which all the candidates appear upon one ballot, prepared and distributed by the state, and the voter indicates on the ballot his choice of candidates. Since all the ballots are alike, and since they are prepared in a booth out of sight of other persons, secrecy can be maintained. Furthermore, third parties and independ- ent movements can get their candidates before the voter with- out the former machinery of "strikers" and "heelers," who distributed only the tickets for which they were paid. The Australian ballot may also furnish evidence against a man who votes fraudulently. The various forms of Australian ballot are reducible to two : in the first, the candidates for each office are arranged in alpha- betical order, each accompanied by the name of the party or organization which nominated him, and the voter must have sufficient intelligence to follow through the ballot and pick out his favorites ; in the other type, each party ticket is printed in a separate column, and the voter may cast his vote for all the candidates of his party by putting a mark opposite the party 6 hepublicas ticket. For President, wiLiiM Mckinley. For Vice-President, THEODORE EOOSEraLT. * DEMOCRATIC TICKET. For Prraldent, ■fflLUAJI J, BRIAN. For Tlce-Pn?sldent, ADLAI E. STETENSON. o SOCUUbT LABOrt TICKET. For President, JOSEPH F. MALLONET. For Vice-President, VALENTINE REMMEL. o PROHIBmOxV TICKET. For Presidenl, JOIK G. WOOLLET. For Vice-President, HEXRT B. METCALF. INDEPENDENT NOMINATIONS. o SOCUL DEMOCRATIC TICKET. For President, EUGENE V. DEBS. For Vice-President, JOB HAERIMAN. BLANK COLUMN. "^sstr CH^^'^-^V^.S^ ':^'M'BZT CHARL^S-^TSlT^HETT -%r-P^'r^r-"^ FRANCIS B, illTCHELL ROBERT C TITUS. MAX FORKER. WILUAH W SMITH. CARL VOSS. SAMUEL 1, UNOERHILU ISRAEL, J. UERRITT. CHRISTIAN BAKKE HENRY M, RANDALL. AJLIU5 MaLPERN. SAXIOEL ROWLAND, E&WIN KE-yPTON. CHARLES VOLLUER. ISAAC K. FUNKL VALENTINES WORTH. MLCHAEL J. DADV. EDWARD KAUFMANN. JAMES BYRNE. BE.-*JAMIN Rn'.NOLDi PETER E BURBOWES. CHARLES H. BUSSELI. HENRY GEORGE, rit ARCfjlE JARROLD. ROBERT T.STOKES. ARTHUR K MAVNARO JOHN KISSEL WILLIAM J. SEATON. CHARLES P. J. WALSH- EDWARD A. SWEZEY.J^ ALFRED R. PETTITT. _ ^"^'"'J-J}^^^ — - RUDOLPH CHARLES BACHEB. PETER FlEBICEfi. WILUAM E- BROWN. THOMAS PEHDEHCASr. JOHN E. WALSH. JOHN KELLY. ■ROBERT SCOTT. FRANZ W GASTElCEi WILLIAM E. BILLINGS. SAMUEL KAHN. RICHARD COULD. CHARLES W. UCLELLAN. WILLIAM WOLLNIK. ■tIESMAM J. KATi MICHAEL H. WHALEN, EPHRAIM SIFF. TIMOTHY.N. HOLDEN- HENRY O. VITAUUS. FRANK TJLFORD. - RICHARD FITZPATBIOC JOHN Mcelroy, . -GEORGE GETHIH. HENRY O. JACKSON. - ^BtVuR p. STURCE5- " RICHARD. HUNTER EMORY CUMMINGS. JAMES W.,PURNSIDE HEKRY HACHEMBISTER. CHARLES KEVENEY. JOHN McKEE. ANTHONY J. OfeSCHGER. JAMES YEREANCE. JOHN J, HARRINGTON. CHARLES C CRAyPORD, CHARLES E.tATIMEB. HENRY LU3L EMANUEL W. BLOOMINGDALE CHARLES FREDERICK HAETIIING FREDERICK C FULLING. JEREMIAH T BROOKS. HERMAN aUADE WILUAll 5HERER. JOHN MCQUADE. LEON R. piLoirr. ALBERT T HULL. HAi.'5 HEDBICK FRANK V. MLLLARD. JOHN BR15BEN WALKEIL MAGNUS SVENSON. CLARE.^CEM.LYON. FRANK HERRMANN, CLARENCE LEKOVt EDWARD STOCKEfl. GEORGE ABELSOR JA.yES C RIDER. WILLIAM WHHKELM.^iJ JOHS N, COBDTS. JOHN C HOOHNBEEt OWEN CARHAHER. MITCHELL DOWNING. RICHARD KITCHELT PETER McCARTHr:- THOMAS H. CAMTION. MATHEW STEEL NATHANIEL B. POWERS. WILLIAM UPPELT samiTel l uunson. WILLL'^'5-t"^oVSS: Jeif^'ltk'i^'k'SlSb. MSTj"^u-mI?y"- S^LSS-ri^^SlR: . p„ U«it.im-Go.™=, ■ j&'s'Elrrs^E^v. 5osi^v-B°;K\-^ '^U^^i-Xct^^ F« Smtar, oi Sua. z.:iiv%"irXHT. EDWARDiSj^A^R. AiS-R^rjJi-H. m^o^S'^^Sj. pran^S-.-sTe^^Uan. Par C«,p«U.r. joh'n^p^'S^ei. john'^r^S^-JS-dson. jAco/r^-E^A-D^ "---"—- Leon^^'S-^^ITbott. Per T™™b,_ 'jZHTez'^^- iSV^%'7'^c'^SyJk^. %^s?^r&^r- £e'x?^r"d'M: ^'isir?tBib"nT^. F« ABdr™-C-«l, '" EDw?&°"A,"om'^'' ^" ivisl]^!'^^^:^'- ""'iSi^tWA^t^^r^'' "■'^^"f."^^^'''- --KSE?-?,^L— '■ Fo,Stt»ED,n«,™lS^,T«, ^oi^m6^^?^f^ '''Sits^»''^ii',ii^°r^ 'c^r^^Tsil^i^^^-^ ^°' ^•it'^D^^i^B'"'^ jau^s-b^cIWan. curtis'n. dou'clas wiliIa-m^m-u&ocr zsaa^-s^aTbrIght. P=. Sualor. EdwaSd m^'eary. BlCH^A^D^G-^^bOM . hen^b-yWaic jno'h'fit&h. tho^S:ss'ho«. "»"-~™ MARc£l'H?^iaPELD. ■ F«Cor««, %5»-Ffi,S5v,T %^^^'stt^ "~^"-'^^o^'^'- '""■"■"""'■ i ■ , AN AUSTRALIAN BALLOT § 37] Methods of Voting. y^ emblem, which can be recognized by a man who cannot read. Another method of voting now making headway in the country is by machines. Several mechanisms have been per- fected, under which a man may vote by going into a booth and pulling a lot of knobs, one for each candidate. The advantage is the quickness of the system, for the moment the ballot is completed it is also cast ; and the machines are also self- counting, so that at the end of the poll the total vote for each name on the ballot is shown on dials ; the system thus obviates errors and possible frauds in counting complicated votes. Voting-machines make their way slowly, partly because of their expense ; partly because, if they get out of order, it is difficult to keep up the election ; and partly because they make un- necessary the force of election officers who are accustomed to get a large day's wage. In England and in the colonies, elections often lasted several days or a week; and for many years after 1787 the choice of presidential electors and representatives took place on differ- ent days in different states. All the states have now come to a system of one single day. Since 1845 ^^1 ^he states are by act of Congress compelled to vote for presidential electors on the Tuesday after the first Monday in November ; and most of them put their state elections on that day. Since 1872 that is also the normal day for electing members of Congress. The deposit of ballots is subject to many frauds. " Repeat- ing " is voting more than once in the same or in different pre- cincts. The " marrow-fat " fraud consists in a voter's putting in more than one ballot, while the clerk puts down fictitious names to cover the extra ballots. The " tissue ballot " system allows a voter to put in a handful of tickets at once. Some- times ballot-boxes have votes in them before the voting begins, and for that reason New York formerly used glass ballot-boxes. Previous to the Australian ballot, in some states judges were ailowed to count the ballots from time to time during the day, a process which easily lent itself to fraud. jt Suffrage and Elections. [§ 38 The result of the election will still be vitiated unless an accurate and fair count is held ; and in no part of the repre- sentative system has there been so much corruption. Voting- machines of course make counts by tellers unnecessary ; but the usual system is to have the election ofificials, — usually a supervisor and clerks, — begin counting as soon as the election is over. The so-called " straight party tickets " are put in bundles and counted, each candidate receiving his credit ; there are numerous " split tickets," and every ballot has to be carefully examined ; the numbers are then tabulated and reported to some state authority. In a hotly-contested elec- tion the returns are at once given to the newspapers, and within six hours after the closing of the polls on the day of the election the result is often known. Sometimes elections are very close : a governor of Massa- chusetts was once elected by a majority of one ; and in the best systems the ballots are preserved until a recount can. be had. One difficulty is that the Australian ballots are numbered, so that it is possible to discover a ballot cast by a particular person ; and recounts are sometimes demanded for no other purpose. Many states have very careful statutes, describing the count of votes and fixing heavy penalties for falsifications. New York City, owing to the efforts of Henry George, has one of the best systems of counting votes known in the United States. 38. Minority and Proportional Representation. To learn the will of the people is easy, if there is only one office to fill and only two candidates for the place ; but in many elections there are more than two candidates for each office : a man, who prefers A and if he cannot be elected pre- fers B, has no opportunity for making a second choice count. In states where in all the sections one party has a preponder- ance, a minority numbering many thousands may have few or no members in the legislature. Thus in Vermont, where the. Democrats are about one fifth of the voters, they sometimes have not a single member in the legislature, - § 3^] Proportional Representation. 77 To meet these conditions, various schemes of minority and proportional representation have been worked out. In the minority system each voter has more than one vote, and may distribute as he likes : in Illinois, for example, three members are chosen to the legislature from each district, and every voter has three votes ; if the minority all " plump " for one man, he is practically certain to be elected, and the result is that in the legislature the minority gets about one third of the members. This method has the striking disadvantage that if only two candidates are nominated by the majority, and one by the minority, the three are almost certain of election, so that it is not necessary to put forward strong candidates. Proportional representation in its many forms aims to take account of second choices, by taking from the candidate hav- ing the highest number of votes all those above a majority, and giving them to some. other person who shall be designated by the voter. Of course until all the vote is assembled, canvassed, and calculated, you do not know who is elected. In Switzer- land, under the system, it has been found that by judicious nomination the election of all but a few candidates is certain beforehand. Underlying all these schemes is the assumption that a man is not represented in the legislature unless he has voted for the sitting member ; in practice, members habitually represent and consult constituents from the minority, and one of the greatest elements of strength in a public man is that he has friends outside his own party. At present neither the minority nor the proportional system seems to make headway in the United States. The original idea of American elections was that everybody must get a clear majority. At present, almost everywhere in the United States, a plurality elects, with the result that the person designated may have not more than one third of the total vote ; and conceivably the friends of both the other two candidates would have united on one to defeat the successful man. Nevertheless, in nine cases out of ten, the man who gets the plurality would have had a majority if there had been 78 Suffrage and Elections. [§ 39 only two candidates ; and the system is instantaneous and so convenient that it is applied even to the choice of the group of presidential electors from a particular state. The only important elections in which an absolute majority is still re- quired are in a few states where the legislature chooses the governor if no candidate has the proper majority ; and in the choice of senator of the United States, which is held by a legislative session, in which it is easy to get a succession of ballots. 39. Popular Votes on Constitutional and Legislative Questions. The primary idea of elections in America is that they are held to select officers of government, including all heads of communities (except the president of the United States) and many other executive and judicial officers, state, municipal, and local. Especially important and prized is the popular choice of all members of legislative bodies (except United States senators), because they frame the laws. As soon as communities get beyond the point of town-meeting or county assembly, where pros and cons can be discussed, it is impossible for a large number of people to arrange the details of legislation, and to be sure that one clause agrees with another or one law with another. Nevertheless, almost from the begin- ning of our present government, popular votes have been taken on the most important of all forms of legislation, — namely, new constitutions and constitutional amendments, and now the method is in various ways extending to ordinary legislation. I. The Swiss, whose government closely resembles that of the United States, have adopted our method of popular vote on constitutions, and have gone far beyond us by taking the opin- ion of the people on specific laws. In some of the cantons of Switzerland, every statute, after going through the legislative council, is subject to a special vote of the people by what is called the " compulsory referendum " ; and in some cases the law is voted upon by sections, so that a part may be passed and the rest rejected. This system undermines the legislature, § 39] Popular Votes. 79 by making it simply a body which prepares the details of a measure but can take no responsibility for its enactment. 2. A second system is the "optional referendum," which is even more widely spread in Switzerland and has taken root in America : a law duly passed goes into force, unless the legis- lative body or a specified portion of it directs that it be sub- mitted to a popular vote. This is practically a veto power, which is not invoked on most laws, and when invoked perhaps results in approval of the measure. 3. Popular votes are most common in local affairs, (i) Under state statutes, on laws relating only to a particular municipahty or locality ; such as a city charter, or a new system of popular improvement, or waterworks, or street viaducts, or subscriptions to railroads : thus in 1894 the question of uniting the cities of New York and Brooklyn and the smaller surround- ing places was submitted to a general popular vote. (2) Under general statutes applying to groups of local governments, — as, for instance, that no local indebtedness shall be incurred for specified objects without the consent of the people. In states which have the local-option system of liquor-selling, each local- ity votes for itself, from period to period, whether it will or will not exercise the privilege of prohibiting the sale of liquor within its limits. Votes may be taken, under special or general acts, on a great variety of subjects, — as the foundation of schools, the improvement of roads, fencing in cattle, taking oysters with scrapes or dredges, the use of voting machines, and a hundred other questions. 4. The Americans are less accustomed to popular votes or state statutes of general obligation. Nevertheless, beginning about 1842, states began to put into the constitution provisions against the incurring of state debt except by popular vote. From 1850 on, popular elections have been held from time to time on the location of state capitols and other public buildings ; and the question of the extension of the suffrage, especially of woman suffrage, has repeatedly been subjected to a compulsory referendum. 8o Suffrage and Elections. [§ 39 5. The Swiss have a third form also called "optional refer- endum " by which statutes that have gone through the legisla- tive forms may be submitted to vote on the request of a certain number of citizens. This system has been adopted by a few states : in South Dakota, by a constitutional amendment of 1898, one twentieth of the number of voters, at the last previ- ous general election may demand the submission to popular vote of any statute which has recently passed the legislature; in Nebraska, one fifteenth of the state voters may demand a state referendum, and one fifteenth of the local voters may demand local referendum on local ordinances ; in Iowa and California the referendum may also be demanded in some of the local governments. In Switzerland there is also a national referendum on peti- tion of 30,000 voters, who may compel about 400,000 other voters to come up and express their will. The tendency is to reject the statute on referendum, but the same measure is sometimes approved on a second popular vote. In the United States a referendum on acts of Congress would be . very difficult and clumsy, and would practically destroy the influence of the Senate. 6. A sixth kind of popular vote is called the initiative, — a system by which a given number of voters may on petition require the legislature to pass a statute of a designated kind and submit it to popular vote, or may actually draw up a bill in detail (the so-called " formulative initiative ") and demand a vote upon it. In 1891 this system was extended to the Swiss national government ; but in the three cases in which it was tried down to 1898, the proposed bill was rejected by the people. So far, this system has been introduced in the United States only in South Dakota, Utah, and Oregon ; on some local questions in some states, a part of the voters may require the holding of an election to decide such questions as the site of a county seat, the fencing in of live stock, the estabhshment of high schools. In Connecticut twenty-five legal voters may insist on a town meeting to vote on the sale of liquor ; in §39] Popular Votes, 8i Utah fifty voters in a small town may demand a vote on a free public library ; in South Dakota, Nebraska, and the city of San Francisco a specified number of electors may propose a measure on any subject, which must be submitted to popu- lar vote. In states having no such system the same result can be reached by a numerously-signed petition to the state legislature. What are the advantages and disadvantages of popular legis- lation ? The advantages plainly are that the people may force the hand of apathetic or improperly-influenced legislatures, by upsetting legislation which does not reflect the sentiment of the community ; the referendum and initiative are both intended to arouse public sentiment by giving the voters questions of real practical importance to vote upon ; again the local referendum adapts "general legislation to the needs of the popular com- munity. The objections are: (i) People do not take an interest in such elections : in Switzerland 570,000 votes were cast in 1898 on a law for the nationalization of railways ; but the year previous, on a constitutional amendment relative to forests, there were only 240,000 votes. In some of the cantons of Switz- erland, where legislative questions come up very frequently, many people get so tired of making up their minds that they will not vote ; and when a statute was passed by Zurich fining voters who did not appear on election day, the result was simply the casting of thousands of blank ballots. (2) The referendum destroys the sense of responsibility of the legisla- tures and of governors, and hence of those who vote for legis- lators, (3) Complicated and balanced statutes, involving economic and social questions, are hardly to be framed or voted upon by a simple yes or no vote. Nevertheless, there remains the fact that a legislature which unexpectedly develops corruption, or which is subject to irre- sponsible chieftains, may be called to order by a popular vote ; and that such a system relieves the serious burden upon good citizens of watching legislation it> order to stop it before it goes through the legislature. 6 82 Suffrage and Elections. [§4° 40. Exercise of the Suffrage. A very important question with reference to the suffrage is the actual degree of participation of qualified voters. In a country like the United States, with a continual stream of immigration, a large number of adult men cannot legally vote because they cannot legally be enrolled till they have lived five years in the country. In 1900, according to the census,, there were in the states of the United States 20,800,000 men of voting age; of these 2,150,000 were unnaturalized foreigners, part of them in the country too short a time to be naturalized, the rest not sufficiently interested to acquire citizenship. That leaves 18,650,000 presumptive voters in addition to perhaps 150,000 allowed to vote in the states before being naturalized. The total vote cast in the presidential election of that year was 13,960,000 or 74 per cent of the possible vote; the propor- tion in 1840 was 78 per cent; in i860, 80 per cent; in 1880, 81 per cent. What has become of the rest of the voters ? Property quali- fications have now been abandoned, but the tax qualification cuts off perhaps one twentieth of all the votes in the states where it is applied. Moral and intellectual limitations dis- qualify over 300,000 men, — namely, prisoners in cells who had committed infamous crimes, insane people, and paupers. The educational qualifications of Massachusetts and Connecticut actually cut out only a few thousand, but the apparently similar qualifications in the Southern states disfranchise several hun- dred thousand. Change of residence shortly before an elec- tion causes the temporary disfranchisement of perhaps one fiftieth of the voters. Making deductions for all these causes we account for 1,700,000 out of the 4,840,000 stay-at-homes; but a further deduction must reasonably be made for accidental causes. About 600,000 men are over seventy years of age, and many of them are physically unable to get out. Most able-bodied men average one week of sickness every year, which cuts out § 4o] Exercise of the Suffrage. 8 3 one fiftieth of the voters below seventy. Various causes take perhaps one in fifty of the voters away from home on election day. The ordinary accidents of life, sudden calls, forgetful- ness, account for another group. Of the men who take the trouble to register in the city of New York, about 10 per cent do not go to the polls ; that is, about 4,000,000 of the 4,840- 000 abstentions can .be accounted for without imputing neglect. In the South the vote is reduced by the general prevention of the negro vote either by positive laws or by irregular prac- tices. In Southern states with a large rural population, like Tennessee and Arkansas, the proportion of voters is very small because of the physical difficulty in getting to the polls. In the closely-populated Northern states a presidential election will bring out as many as 90 per cent of the actual voters ; and there have been instances where a state cast more votes than there were known voters. In a presidential election, the num- ber of people who stay away because they are not interested to vote is very small, smaller than in most stockholder or club meetings : the vote upon the Massachusetts constitution of 1780 was about one twenty-fifth of the population; in the presidential election of 1880 it was about one sixth of the population. In state and local elections abstention is a more serious evil: thus in New York City in 1888 the vote was 18 per cent of the population ; in the local election of 1890, under 12 per cent; in the election for governor in 1891, about 13 per cent. In general, local elections call out the smallest vote ; but the intense public interest in the government of great cities caused in 1901 a vote in New York City only 25,000 less than in 1900. In cities like Cleveland and Chicago and Philadelphia and Detroit the vote on municipal elections is now very heavy. Whenever in really contested elections the abstentions are numerous, the apparent wilful neglect of voters is often a will- ingness to accept conditions as they are : if the vote at a municipal election is half that at a presidential- election, it is 84 Suffrage and Elections. [§ 41 because people are willing to take their local government as it comes ; by neglecting to vote, they practically admit that they are reasonably satisfied. In some cases a small vote is really intended to be a heavy and most elTective rebuke on a party machine. Thus in 1882 the vote for governor in New York was very small, because the voters of one party desired to rebuke what they considered the forcing of a candidate by the administration ; actually about 200,000 party voters refused to come out, and thus they gave a majority of 192,000 to the opposing candidate, who thereby won such eclat that two years later he was nominated and elected president. 41. Reform of Electoral Methods. From the preceding discussion it will be seen that our electoral system is by no means perfect : we have some things to learn from the experience of other countries, and much from our own. First of all, we have no adequate system for ascertaining and recording the qualifications of voters, because of a painful lack of a proper system of registering births and deaths. Thousands of young men vote before they are twenty- one, because it is hard legally to establish their age ; thousands of names of dead men are kept on voting lists because the registry of deaths is not so accurate that it can be depended upon for the purification of the lists. The second need is thorough registration : Americans move freely from state to state and from city to city, and hundreds of thousands of legal voters are little known to their fellows. A few states absolutely prohibit registration ; many states have not a sufficient system ; and the practice of continuous registration is in some cases used to cover fictitious voters. The third necessity is for a proper method of voting, and this is the reform which has most headway in the Union. The Australian ballot ought to be extended to the remaining five states, for it requires intelli- gence : the provisions of some of the state laws that an illiter- ate voter may have his vote marked for him by a friend or an official, is really the striking-off of a valuable educational qualification. §4i] Reform of Electoral Methods. 85 The English Corrupt Practices Prevention Act of 1883 strikes at one evil — the direct and indirect corruption of the voter — by requiring every candidate for office to file a sworn statement of the amount expended by him or in his behalf in the election, whether he wins or loses. This plan is followed in thirteen states. In most states new legislation is necessary to protect the count of votes ; the actual process should be conducted with •more care and sobriety. Everywhere, as in the best states at present, solicitation of votes in and about the polling-places should be absolutely prohibited. Ballot-boxes should be so constructed as to make' it impossible to tamper with them before voting begins. The count of votes should everywhere be made in the presence of a number of persons, should be immediately announced, and should be subject to verification and to recount. In many states more thorough legislation is necessary to punish the offence of falsifying the vote. The fate of republican government depends upon the ability of the people to express their will without interference or fraud. To stuff the registration lists with fictitious names, to miscount the votes, to throw out legal votes on small techni- calities, to accept ballots made up in defiance of the provisions of the law, — these are betrayals of republican government in the hands of its friends. Behind all methods of voting, however, must stand an intel- ligent public interest in elections. As will be seen in the next chapter, one of the main reasons for apathy in elections, especially on local questions, is the small influence of the average voter in the nomination of candidates. Our present remedies are outright bolting, voting for some men on the other ticket, or simply scratching off objectionable men on one's own ticket. The Australian ballot is a great step because it gives opportunity for thoughtful voting ; but the thoughtful voter must not only cast his ballot, he must make up his mind tliat if necessary he will sacrifice time and convenience to see that other people's ballots are properly cast and properly counted. CHAPTER V. THE PARTY AND THE MACHINE. 42. References. Bibliography: Channing, Hart, and Turner, Guide (1912), §§ 203, 249, 272; F. W. Dallinger, Nominations for Elective Office (1897), 221- 224; A. B. Hart, Manual (1908), §§ 103, 104, 206; W. B. Munro, Bibl. of Muncipal Govt. (1915), §§ 7, 8. See also references to ch. iv. above. Parties: J. A. Woodburn, Pol. Parties (1914); M. Ostrogorski, Democracy and the Organization of Pol. Parties (1902); J. Macy, Party Organization (1912); Cyclop, of Am. Govt. (1914), Arts, on Democratic Party; Democratic- Republican Party; Federalist Party; Parties, State and Local; Party (7 articles); Republican; Third; Whig; J. Bryce, Am. Commonwealth (ed. 1910), H, chs. liii-lvi; H. J. Ford, Am. Politics (1898), chs. vii, xxiii-xxv; C. MacCarthy, Anti-Masonic Party (1903); P. O. Ray, Pol. Parties (1913), chs. i-iii, ix-xi; F. E. Haynes, Third Party Movements (1916); J. D. Long, Republican Party (1888); A. N. Holcombe, State Govt. (1916), ch. vii; W. M. Sloane, Party Govt. (1914); A. L. Lowell, Public Opinion and Popular Govt. (1913), pt. ii. — Sources: C. A. Beard, Readings in Am. Govt. (1909), chs. vi, vii; C. L. Jones, Readings on Parties (1912), chs. i, ii, vii, ix. Systems of Nomination: F. W. DalUnger, Nominations for Elec- tive Office (1897); F. A. Cleveland, Organized Democracy (1913), chs. xiv, XV, xvii, xviii; P. O. Ray, Pol. Parties (1913), chs. iv-viii; Cyclop, of Am. Govt. (1914), Arts, on Campaigns, Pohtical; Caucus, Legislative, for Nomination; Committees, Party; Convention, Political; Nominat- ing Systems; Nomination of the President. Boss-rule: F. J. Goodnow, Politics (1900), ch. viii; T. Roosevelt, American Ideals (1897), No. 6; G. Myers, Tammany Hall (1917); R. C. Brooks, Corruption (1910); A. M. Kales, Unpopular Govt. (1914); Cyclop, of Am. Govt. (1914), Arts, on Boss; Corruption; Corrupt Prac- tices; Tammany; J. Bryce, Am. Commonwealth (ed. 1910), II, chs. Ivii, Ix-lxiv, Ixviii, Ixxiv, Ixxv, Lxxxviii, Ixxxix; P. O. Ray, Pol. Parties (1913), ch. xvi; F. C. Howe, City the Hope of Democracy (1905), ch. vii. — Sources: The Nation (weekly); C. A. BeaxA, Readings in Am. Govt. (1909), ch. xxx; C. L. Jones, Readings on Parties (1912), ch. iii. 43. History of American Parties. To carry on American government successfully requires a continuous purpose on the part of the voters, either to change 86 § 43] History of Parties. 87 the policy of the government, or to hold fast to what they have acquired. The moment that two individuals habitually con- sult together and act together on matters of government, we have the nucleus of a political party ; and such association of men of like minds is the necessary condition of popular gov- ernment. In England, distinct political parties began about the time of the struggle between the Cavaliers and the Roundheads, in the Stuart period. After the Revolution of 1688, the adherents of the deposed Stuarts were called Tories, but until a few years before the Revolution their rivals the Whigs practically con- trolled the government. King George III in 1760 threw in his lot with the Tories, and they were in power most of the time till the end of the Revolutionary War. In the colonies, parties sprang up as soon as representative government was established ; but the main centre of political difficulty was the governor's authority. The royal governors were always in hot water with their people over questions of taxation, of land system, of military defence, and so on ; and the parties were in essence the governors' friends and the op- position. There were no. general American parties until 1765, when the friends and opponents of the Stamp Act became sharply divided. At the beginning of the Revolution, in every colony the patriot party was forcibly contested by the royalists, commonly called Tories. In every colony the patriots got possession of the state government, organized it, and framed a new constitution ; and the Tories absolutely disappeared as a political power. The first development of national parties was the division over the ratification of the constitution in 1787. Throughout the country, the friends of the constitution organized as " Fed- eralists " and stood together : the Antifederalist opponents of the constitution kept up the fight as long as they could, but within two years their party absolutely vanished. The gen- eral elements of separation, however, were speedily crystallized into two great recognized political parties, the Federalists 88 Party and Machine. [§43 and the Antifederalists. The Federalists included most of the commercial and industrial interests, the ship-owners and manufacturers ; and the general principle of the party was sub- mission to intelligent leadership for the protection of property and the maintenance of order. The Antifederalists, for a time called Democrats, under Jefferson's guidance speedily took the name of Republicans, and had for their basal principle the rights of the individual and the maintenance of personal liberty and independence. The Federal party lost the presidency in 1801, and by 1822 died out in the states. The Republicans, now frequently called Democratic Republicans, were in full control, took over many of the former Federalist principles, and attracted many old Federalists, especially John Quincy Adams. From about 1 81 6 to 1832 there were no distinct party issues ; men divided on personal grounds, and on such issues as the anti-masoaic agitation. This period, the earlier part of which has been called the Era of Good Feeling, was really a period of bitter- ness and rancor and legislative ineptitude. It was terminated between 1829 and 1832 by Andrew Jackson, who hewed out a new set of political principles : he extended the ideas of Jefferson to cover opposition to a national bank, high tariff, and national internal improvements. Gradually Jackson's friends and supporters took the name of the Democratic party ; Jackson's opponents concentrated and took the name of the Whig party, and from. 1840 to 1852 those two parties alternated in control of the presidency and of Congress. Up to 1840, no third party had been long-lived ; but the op- ponents of slavery founded the so-called '''Liberty" party, later the Free Soil party, which hi. 1840 polled 7,000 votes ; in 1844, about 60,000; in 1848, 300,000. In 1852, the Whig party broke up on the question of slavery ; in 1856, the Anti-slavery party all but elected its president; and in i860 that party elected Abraham Lincoln president. During and after the Civil War, the Republican party stood at the same time for the vast interests of capital and. as the § 44] Party Organization. 89 great defender of human liberty. The Democratic party still stood on its old ground for as little government as possible. In 1884, a Democratic president was elected for the first time since 1856. The various third parties which had been formed just after the Civil War died out: the issue was distinctly between the Republicans and the Democrats. There was again an alternation: in 1880 a RepubHcan, Mr. Garfield; in 1884, a Democrat, Mr. Cleveland; in 1888, a Republican, Mr. Harrison; in 1892, a Democrat, Mr. Cleveland again; in 1896 a Republican, Mr. McKinley ; and at this day the two parties which have confronted each other ever since the Civil War are still strong, vigorous, well organized, and con- stantly opposing each other in the national, state, and local governments. 44. Party Organization and Party Committees. Parties do not conduct themselves, they require careful and intelligent direction by individuals ; and those individuals, the party managers, tend to take upon themselves all the party functions, — designation of candidates, management of cam- paigns, conduct of elections, statement of party principles, and adoption of legislative policy. Until recently a party was in the eyes of the law simply a voluntary association of individuals, like a club or a church : no political party is incorporated ; no party as such can make contracts, incur debts, or enforce its rights by suit ; men join a party by voting with it ; men retire from it by refusing to vote with it. Nevertheless, this nominally free and open or- ganization has become one of the most permanent, powerful, and effective forces in the whole country. How does a party maintain its hold upon its members ? To a very large degree the sons of party men will vote their fathers' ticket. Sometimes the " first voters " are an element of uncertainty, especially when new questions come up. Par- ties are not much strengthened by men's changing permanently from other living organizations, although in 1862 many Demo- 90 Party and Machine. [§ 44 crats became Republicans and in 1872 and 1884 large numbers of former Republicans became Democrats. Emigrants much affect the complexion of parties, and there is a kind of race choice: Irishmen prefer the Democratic party; Germans are more likely to choose the. Republican party. Nevertheless, there is always a class of voters who do not count themselves as party men, and vote on one side or the other according as the principles of each attract them ; and in hot campaigns, Hke those of 1884 and 1896, thousands of voters pass for the time from one column to the other. Against such defection the party managers are always on the watch, for a party, like an army, can accomplish its work only by joint action of its members ; yet it is an army which melts away without possibility of court martial, or sits in its tents if it does not like the war. Hence successful party managers must learn the temper of their followers, and must placate them by promising popular measures and by nomi- nating acceptable candidates. To the party manager, the good man is he who always votes the straight party ticket : it is thought contrary to party honor to strike off a single name from the regular list of nominations ; a man who is known even once to have voted for a candidate of the other party, especially in a national election, is suspected, and even though he comes back to the fold perhaps may never receive a nomination. In the management of parties, the main instrument is the standing party committee. National parties have a committee of one member from each state, the chairman of which is in a position of enormous influence. The national committee men are designated every year by the delegation of their states at the national convention, but have the right to fill vacancies and to select an executive committee which does most of the work. The state committees have the power to fix the time and place for the meeting of state conventions, and in many cases prepare the work of those conventions in advance. They even draw up and discuss platforms beforehand. Every § 45] l^arty (Jommittees. 9 1 city has a similar committee, positions on which are often hela for many years. Quiet men, little known in public life, serve on these com- mittees, and make the prime decisions on political questions. One of their functions is to raise and apportion funds for campaign purposes ; they send out appeals to well-to-do mem- bers of the party ; wherever they can, they also assess the office- holders of the party ; but since the civil service act of 1883, this practice is forbidden by law, so far as federal officials are con- cerned. In many states they habitually require great corpora- tions, especially traction companies, to pay large sums to the party treasury, the consideration being a tacit understanding that the party will be pleasant when the corporation wishes favors. Some corporations subscribe to the campaign fund of both parties, so that they may always have a friend at court. When the campaign is once under way, a sub-committee or a separate campaign committee is appointed, which arranges for political meetings, assigns speakers, and in general acts as counsellor and protector for the local political organizations. National committees now make much of the literary depart- ment : in 1896 the republican committee had for weeks a large building in Chicago, and sent out daily many tons of mail, amounting to a total of several million pieces. Such docu- ments may be translated and printed in a dozen different languages. 45. The Caucus. In small democratic communities like the New England towns or the Southern counties, it is easy for a man who wants to be elected to an office to make his desires known : to this day notice is occasionally given in the public press that so and so is a candidate for such an office. Then, in a town of ten thousand inhabitants, all the intelligent people know all the principal men of the place by name or on sight. When, how- ever, we take a large community like a state or a municipality, 92 Party and Machine. [§ 45 it is likely that at a given election not one voter in twenty will know personally more than one or two of the candidates for whom he is voting ; and in a city ward with a population of ten thousand, successful men of great worth may hardly be known by name to their next-door neighbors. To make de- mocracy work under such conditions, the voter must have some principle of guidance in selecting his candidates ; and he de- pends on the nomination, of a representative party candidate. Party nominations are usually made by one of two organi- zations, — ■ the primary convention, often called a caucus, and the nominating delegate convention. The primary election is intended to be a kind of town-meeting for the members of the party within a limited territorial area ; it is supposed that they know each other, and that they will recognize names sub- mitted to them for local nominations. The primary also chooses delegates to county or state conventions, and thus indirectly to national conventions : if the friends of a statesman wish to make him president, they must in the end secure support in the primaries in thousands of places all over the country. Hence it is apparent that to take part in some primary elec- tion is the duty of every good citizen ; but in many states membership in the caucus is given, not to all the voters of the party, but to a select coterie who fill their own vacancies. This was the case in New York City until a few years ago : the other voters simply stood aside and had to accept what was put before them. The first difficulty in a cai^cus is to determine who shall take part. In many cases caucuses are packed by voters of the other party, who thus help nominate the candidates of their rivals, and naturally are not eager that the best man shall be nominated ; and there have been comical cases in which, in the same city. Democrats have practically dictated Republican nominations, and Republicans have controlled Democratic caucuses. • Many states, Massachusetts being the most prominent, have enacted caucus laws, which provide that every member of a §46] The Caucus. 93 party shall be allowed to attend his caucus ; which forbid any one to attend who does not show that he is an adherent to the party faith ; and which put the officers of the caucus under legal responsibility to preside justly, to count the votes accurately, and to give the minority a fair chance. The effect of such laws is wider than appears upon the face, for they make the caucus a part of the machinery of government : the state has to take legislative notice of the fact that there are political parties ; it assumes the responsibility of deciding who is really a member of this or that political party, and which of two rival organizations is " regular." Within the caucuses there are practical difficulties, (i) They are often noisy, disagreeable, and protracted. (2) In a very large proportion of cases a " slate " is made up by men who can control large bodies of votes (a " slate " is a list of persons selected beforehand to be designated by the meeting). (3) All public meetings must in the last resort depend upon the honesty of the chairman, — if he says the ayes have it when the noes really have it, the ayes win, and hence a corrupt chairman may defeat the desires of a plain majority. (4) The caucus appoints delegates to the county, city, district, or state conven- tions : where the caucuses are honestly carried on, these del- egates ought to represent the majority opinion within a party ; but, if dishonestly managed, a small minority of the party voters may succeed in sending to the convention enough delegates to nominate their candidates. The public-spirited voter finds it hard to influence caucus action. 46. The Nominating Convention. The other machinery for selecting candidates is the nomi- nating convention, which first appeared in 1 788 in Pennsylvania, For many years it was an arena where the strength of rival candidates was tested, and this is still the case in the national convention ; but the local conventions, and even some state conventions, are now in many cases simply a cut-and-dried affair, to ratify a result reached beforehand by the party 94 Party and Machine. [§ 46 leaders. In the first place, a very common method is to " in- struct " the delegates from the primaries as to the persons they shall vote for : this means that, from the first, the conven- tion is not a body of persons to deliberate and select the best man, but a set of ambassadors from the localities. Usually the conventions are large ; in Massachusetts as- many as 2,200 delegates are elected every year to each of the party state conventions. Before assembling, the party committee pre- pares a list of officers of the convention, including a man designated for the permanent president ; and as soon as elected he makes a speech setting forth the party principles. The difficulty that most often disturbs the state convention is the appearance of rival delegations, each claiming to be the rightful representative of the voters of a particular district. A committee on credentials is appointed to consider such cases, and makes a report ; sometimes the nomination depends upon the seating or the unseating of a particular delegation. The natural tendency of the party leaders is to accept the delega- tion which is "regular," which represents "the organization," — that is, which has the support of the men who have been accustomed to take charge of party matters in the district from which the delegation comes and are in relation with the state committee. A method very frequently followed is to admit both delegations, each casting half the vote from the district. Sometimes local and even state conventions get into an up- roar. In September, 1896, on the day before a Massachusetts convention, a number of delegates and cont-esting delegates held a meeting in the hall where the convention was to occur, and resolved to occupy the room till the convention assembled the next day. When the time came for the convention, there- fore, about 500 delegates were already in their seats; the remaining delegates were crowded outside, and the police declined to open the doors, so that the members in the hall proceeded to organize a convention and to nominate a candi- date. Meanwhile the state committee had called the rest of the convention in another hall, where they duly organized and § 47] Nominating Conventions. 95 made their nomination for governor. Tlie result was two cer- tificates of nominations sent to the state government ; and an ofificial election commission was obliged to decide which con- vention had the regular party nomination. The state conventions not only nominate state officers, but also designate members of the state committee, and often dele- gates to the national convention ; and in addition they adopt a platform of party principles. These state platforms are usually not much regarded except in times of political unrest, when the attitude of a state convention may presage the attitude of the voters of the state on questions of public policy. Wher- ever the party convention has degenerated into a cut-and- dried preconcert of a few party managers who make up a ticket, such a convention is simply a mask for a personal and despotic system of nominations, and might well be omitted altogether. 47. National Conventions. The enthusiast who loves a fight is still gratified by the national party convention, which is subject to interesting waves of excitement, and the result of which is as yet uncon- trolled by any previous arrangement. The original method of designating candidates for national office was by a caucus of the party members of Congress at the seat of government. Such caucuses designated the party candidates in 1796 and 1800 ; and down to 1820 the caucus nominations were usually taken up by the country : the difficulty was that a district rep- resented by Federalists had no representation in the Republi- can caucus ; and there was a general feeling that the work of the caucus was selfish and partisan. It broke down in 1824. The next method of presidential nomination was by state legislatures, of which a conspicuous example was the setting up of Jackson by the legislature of Tennessee in 1822, and again in 1825 after his first defeat. This system was obviously clumsy, and did not represent the whole country. Hence it was superseded by a national delegate convention, made pos- sible by the improvements in transportation, by steamers, and 96 Party and Machine. [§ 47 later by railroads: 1840 is the first year in which both the two great parties had regular conventions, nominated candi- dates, and drew up platforms. From that time on, conven- tions have regularly been held by the two great parties, and frequently by third parties. Until i860 the national conventions were held in small halls, sometimes in small cities ; the Chicago (Republican) conven- tion of i860 was the first to be held in a great auditorium, intended to give ten thousand people a chance to see the per- formance. The conventions are now always held in a large city, and last several days. The result of the hippodrome system is of course that members of conventions consciously or unconsciously talk and vote with a view to the galleries, and the galleries do all they can. to affect the minds of the delegates. The usual membership is two for each congres- sional district, four at large from each state, and six from each territory, making a total of 994. It is customary to appoint a large number of "alternates," who have the right of attending, and for whom seats must be found ; and the press is amply accommodated. The organization of the national convention is like that of state conventions : the meeting is called to order by a temporary chairman designated by the national committee, who makes a speech ; a permanent chairman is then elected, and a committee on credentials is appointed ; in case of serious contests no work can be done till that committee reports. A large number of delegates always come from states which cannot possiby cast any electoral votes for the candidate of the convention and are little controlled by public opinion ; delegates from such states sometimes run out of money if the convention is prolonged, and their expenses are paid for them by the friend of some candidate. With all these drawbacks, the national conventions are a reasonable reflex of the public sentiment of the parties. The platform is sometimes drawn up before the nominations, especially if it is desired to lay down a principle which shall bind some particular candidate ; § 47] National Conventions. 97 wherever there is a great dissension in the party, it is hkely to be expressed in the debate on the platform. The making of the platform requires the greatest skill if there is a division of opinion within the party. The Demo- cratic party has a habit of reiterating its platforms of previous years, with additions ; other parties usually make up an entirely new document. In 1896 the drafting of a gold plank in the platform of the Republican convention at St. Louis was so important that three or four men have contended for the honor of having framed it. A frequent form of statement on serious questions is the so-called "straddle," — that is, a declaration which means anything to anybody. Nevertheless, the party platform is accepted throughout the country as a statement of the principles and intentions of the party, and great use is made of it in the campaign. In a large convention, only a few persons who have been designated beforehand can be allowed to speak on any ques- tion. At Chicago in 1896, Mr. Bryan, who had already been selected by a large fraction of the Democratic party as their candidate, came forward and made a speech which at once stamped him as a leader and greatly aided him to get the nomination. When the organization is complete and the question of con- testing delegations settled, and the platform is out of the way, the next thing is the nomination of the candidates. The dif- ferent aspirants for the suffrages of the convention are put forward in elaborate speeches by their friends, speeches which sometimes unexpectedly furnish a war-cry ; as in the case where an orator declared that " we love our candidate for the enemies he has made " ; or another who put in nomination " gifted, gallant, glorious Blaine," " plumed knight," " our Henry of Navarre." Ever since i860 it has been the habit of the spectators to express their sentiment by uproarious applause, when the name of the person brought before the convention is first mentioned: thus, in 1884, the mention of the name of Mr. Blaine brought out twenty minutes of continuous applause, 7 98 Party and Machine. [§ 48 wave after wave. The effect of this participation by the gal- leries is doubtful ; it probably makes no more impression on the nerves of the party managers than the cries of the specta- tors on an experienced base-ball player. After the nomination the candidate is notified by a com- mittee, and makes a speech or writes a brief letter ; later on there is sometimes a mass- meeting, at which he makes a longer speech ; and he eventually writes a careful letter of ac- ceptance, in which he states his principles and expounds the party platform. Although it is quite possible in state conventions to nomi- nate men who are unknown to a large majority of the delegates, the national conventions almost universally designate men of reputation and character. People have such a sense of the importance of the office of president, that, although weak men have sometimes been nominated and even elected, no man has ever been successful in a presidential election who has not had a previous experience of public life and who was not well known in some parts of the country. Even Franklin Pierce had been in Congress and had served in the Mexican War. 48. The Machine and the Boss. Those persons, often very few in number, who control the regular routine of party action, take upon themselves the name of " the organization " ; by their opponents, within or without their party, they are habitually called " the machine." There is nothing vicious in party organization, there is nothing strange or immoral in intelligent acceptance of the management of a few persons ; every one is aware that charitable and social organizations of all kinds are set in motion by a few minds. "The organization" must undertake the detail of the neces- sary and perfectly legitimate work of keeping track of the voters of the party, notifying them of caucuses and elections, sending out campaign literature, providing halls and speakers for campaigns. The organization becomes dangerous when it passes beyond initiative and suggestion and routine work, and §48] The Machine. 99 assumes the sole right to select persons for party nomination ; or when, by preventing a fair expression of the will of the party voters, it forces unfit candidates upon the ticket j or when, going to the furthest extreme, it arranges with the worst elements in the other party for a division of the public employ- ments and public contracts for private benefit. " The politi- cal machine," like every other machine, works good or bad results according to the will of the operator. Throughout the United States, in the cities, towns, villages, and rural communities will be found conclaves of politicians who are recognized, often for years together, as the men to be consulted by the party chieftains ; and wherever politics are too highly organized, especially in the cities, these subordinates become the agents for the exercise of arbitrary party manage- ment. The most honest and straightforward political leaders, conducting elections with perfect fairness, must nevertheless depend for their political success upon voters ; and unless they carry elections, at least occasionally, their party has very little function or significance. Hence for the support of the organi- zation it is necessary that the voters be known and be brought to their duty; and the subordinates, who frequently occupy small offices, are expected to " hold the vote." In most coun- try districts, they simply keep the men of their party up to the mark ; but in cities of-every size, and particularly the larg- est, such leaders gradually accumulate a following which will vote any ticket at the orders of the chieftain. Thus is estab- lished in American politics something very like the old feudal system in European government : the local man, often called a " heeler," has his body of adherents, whom he holds in ser- vice at the call of his superior ; that superior in turn must hold his collection of votes at the service of the chieftain ; in pri- maries and conventions also the heeler and the district leader often absolutely control large blocks of votes. Hence, in order to get a nomination, the candidate must somehow secure the support of the party chieftains. So far the political voter may still be loyal to his great party I oo Party and Machine. [§ 48 leaders, just as the vassal of a lord was nominally the subject of his king ; but in very highly-organized political parties, the stock voter will accept the orders of his suzerain to vote against his party. This makes possible the political " deal," which means that the heads of rival parties agree each to sup- port some of the candidates of the other's ticket, thus rendering the election of the least desirable men almost a certainty. Re- publican government disappears when the vote can be trans- ferred as a chattel from one voting camp into another. How does the machine keep its hold upon the voters, many of whom are only dimly conscious of its terrible power? Partly by punishments, especially by the marking for exclusion from all future office and advantages of any man who shows too much independence ; much more by positive benefits. It must not be supposed that even in the most corrupt city gov- ernments the majority of the voters are simply tools. They arie kept to their party adherence by a conviction that adherence brings them something worth having : first of all and most im- portant, the chance of being elected or appointed to an office carrying with it dignity, power, and salary; in the second place, aid and protection in business, lawful or unlawful ; in the third place, positive and unceasing relief to the wants of poor people. Thousands are the tons of coal and the barrels of flour furnished to the poor and suffering by political leaders, who often feel a genuine friendship and interest in their people ; and it is not in human nature for the recipients of such favors to vote against their benefactor. The inevitable tendency of a highly-organized machine is to bring each organization into the control of a single man, who is popularly called " the boss." Again, the principle of the political leadership of a man of power is not harmful : it is as old as poptilar government ; it everywhere appears in the midst of free institutions. In one sense, Chatham was a boss, and Gladstone and Thomas Jefferson and Andrew Jackson and Abraham Lincoln ; that is, these were all men who towered above their fellows^ had very positive views as § 48] The Boss. loi to a political policy, and laid down principles which other.men accepted under their guidance. They were also men who ac- cepted the highest political responsibilities, who wrote or spoke in defence of their principles, who led men, not because they could combine votes, but because they had high aims. The " boss," in the common acceptation of the term, is a man who concerns himself little with policies, and much with the bringing together of a majority which will enable him to keep his friends in office. The boss is sometimes a high officer in the government, either state or national ; quite as often he is a private individual who makes but does not take political office. Some bosses have been religious men,, some have been unconvicted murderers ; that makes little difference to their success, because the boss is powerful, not through his private character, but through his masterly capacity of keeping up that combination of private interests which constitutes the machine. Bosses increase, simply because experience shows that one leader acting through a strong organization is more likely to win elections than a conclave or oligarchy of similar leaders. The boss is usually a man who has a vast number of friends, some of them won by admiration of his qualities, some of them attracted by all sorts of advantages thrown in their way through the great man's influence : a struggling young lawyer gets a case from an intimate friend of the boss and the promise of more business ; the enterprising young business man finds that the boss will endorse for him at the bank ; the promising young editor gets public printing. These are not all acts of bribery ; they may be simply methods by which the political leader marshals his followers. If the boss had an immense fortune which he was expending in these benevolent ways, he would not be so much criticised : the wrong is that so far as his acts cost money, they eventually come out of the public treasury, directly or indirectly. Some bosses are perfectly content to make no financial profit out of their enterprise; others accumulate fortunes: in either case, the harm done to I02 Party and Machine. [§48 the public is the same ; for the corrupt boss enjoys the sense of power, not that he may increase the happiness and welfare of his countrymen, but that he and his friends may retain the power of spending public money in part for private ends. The most successful bosses raise the necessary funds for theii- operations by assessments upon large corporations ; but in the end these corporations recoup themselves by withholding ser- vice to which the public is entitled, or by securing privileges which otherwise they could not have. The great objection to the boss is that he makes out of politics, which is a means of serving public interest, a private and almost a commercial enterprise ; and that thereby he is demoralizing the public service. Well-to-do people can always protect themselves from any serious harm arising from boss government. It is the poor people, the friendless people, who lose most and suffer most from his sordid rule. Where there is a boss, the feudal system in politics is com- plete : he stands as sovereign ; the district leaders, the heelers, and the voters all in succession owe him allegiance ; he makes his power effective by his almost absolute control over the can- didates to be nominated by his party. Hence the ablest and most respectable men frequently make terms of some kind with the boss. In the worst instances, they buy their nomina- tions by large contributions to the " campaign fund " ; in other calses, they accept nomination with the tacit understanding that if elected they will deal paternally with the supporters of the boss. Through his control of nominations to the state legisla- ture, the boss in many ways dictates legislation : if his party has the majority, a measure that he endorses is perforce ac- cepted by his men in the legislature ; a measure that he opposes is remorselessly cut out. This leads, in the blackest cases, to an habitual dicker between the boss and corporations which desire legislation : he agrees that in consideration of money duly paid to him, or for advantages to his friends through the corporation, he will deliver the legislation desired by such cor- porations. When public franchises valued at many millions §48] The Boss. 103 are given away by legislatures or city councils, they are given for some kind ' of consideration, either political support or actual money. This is the lowest type of so-called " popular government " : a legislature in which the majority of members owe their nomi- nation to an organization in which one man rules ; a governor often springing from the same source ; other officers owing their appointment to the same influence. When such a situa- tion prevails, it constitutes nothing in the world but a tyranny under the forms of free government. Such tyrannies would inevitably lead to political revolution and civil war in the United States, as they have in all other countries and in all ages of the world, but for two reasons. First, the boss must after all satisfy his followers that he can win, and in order to keep them in line he must nominate some candidates that he does not like and accept some unpalatable policies ; like the czar of Russia, the boss of an American city has to take some account of public sentiment. In the second place, sooner or later American freemen get tired of personal government, and get up some sort of combination of the better elements in all parties to deprive the boss of his majority ; whereupon he be- comes helpless. In this last condition, the boss usually fights by falsifying election returns ; and the only remedy in such a case is for respectable members of the boss's party e?i masse to desert him and vote for any promising candidate who can be elected against him. In this sketch no reflection upon the ordinary American voter or the ordinary American public man is intended. American popular government is in principle a government of the majority for the benefit of the public. When hundreds of thousands of voters obey without demur a single will, it results in the establishment of a camorra, — a political state within a state, a part of the citizens organized for the purpose of securing privileges from the government from which their fellow-citizens are excluded ; and in many cases it is simply the rule of an organized, determined, and unscrupulous minority over a stupid majority. I04 Party and Machine. [§49 49. Influencing Voters. In most elections, from year to year, the majority of the men who go to the polls will vote the " straight ticket " of their regular parly ; the number of voters who can in any way be brought to change their habitual vote is rarely more than one fifth of the whole. In the election in New York City in 1901, if one voter in thirty-six had voted the other way, there would not have been a change in administration. (i) The most ordinary influence on voters is simple persua- sion. In some parts of the country, especially in the South, there is joint discussion of public issues, listened to by both sides. In the Northern states, political meetings are usually attended only by members of the party that holds them, who have not come to have their opinions changed, but to have them confirmed. (2) The newspaper is of course of great influence over voters. Newspapers frequently take new ground, and sometimes in a hot campaign change over from one side to the other ; but, again, most Americans read only the newspapers of their own party, and hear very little of the argument of the other side. Hence the importance of special campaign literature; for in- stance, in 1896, the Republican National Committee deluged the state of Iowa with specially-prepared political tracts, mailed to individual voters whom they supposed to be making up their minds on the question of the gold standard. (3) Another method of influencing voters is by intimida- tion, — sometimes nothing more than the disapproval of a man who votes unlike his neighbors, sometimes fierce and cruel per- sonal abuse, sometimes threat of dismissal from employment. The Australian ballot has been favored by labor organizations because it enables the workman to escape from this form of oppression, since it is almost impossible to find out how a man has voted unless he himself discloses it. (4) Farther down still is the brutal violence at the polls, of which there have been many examples in American history. The usual form is for friends of one party to drive away the §49] Influencing Voters. 105 watchers of the other party, or to threaten voters when they oifer their ballots. With the introduction of metropolitan police, since i860, this violence has become less common in large cities ; and the Australian ballot laws, which in many cases forbid the assemblage of persons about the polls, take away the pretext of violence. However, since the Civil War there have been some cases of voters driven en masse frohi the polls by bodies of armed men. Such practices are the destruction of free government ; for if A and B stand together to drive from the polls their brethren C and D, who are equally legal voters, the time may come when the A's will unite to keep their brother B's from the suffrage. If poHcies cannot be changed by orderly votes, government ceases to be republican and becomes military; and military government tends to despotism. (5) Another too frequent method is the corruption of voters. Bribery is as old as votes, — very frequent in the Greek and Roman republics; for half a century, from 1725 to 1775, the recognized method of getting a government majority in the House of Commons ; frequently practised in the colonies ; and to this day one of the most widespread and demoralizing influences. The most subtle form of bribery is to pay a man on election day for peddling tickets, for getting out the voters, - or for reporting the vote. Another form is the purchase of " political movements " : temporary third parties are set up for the express purpose of being bought off in a block. Another method is to hire men to stay away from the polls, one of the most dangerous of all forms of bribery because it cannot be detected by any ballot device. (6) Perhaps the baldest form is to pay money outright for votes : candidates for offices are often assessed thousands of dollars for campaign funds ; and cases have been known where they have gone from polling-place to polling-place, actually giving out rolls of bills to be distributed among the voters. The indiscreet written advice of a political leader in 1888, to secure the " floaters in blocks of five," was an unblushing ad- io6 Party and Machine. [§50 mission of the worst form of bribery, — the gathering up of tramps and loose characters, corralled in warehouses like cattle, let out in gangs of iive with a watcher to deposit their votes before their money is paid. This is a shameful spectacle ; and although in most communities only a small proportion of the voters will sell their birthright, yet that small proportion may be just enough to turn the scale. It is needless to say that the bribed voter is no voter, that he is simply a pawn in the hands of a man or the organization that pays him. In most states there are strict laws against either giving or receiving bribes ; but bribery is an offence extremely difficult to prove, because neither party desires that the transaction be made public. There have been cases in which, on the day of an election, the party heelers on both sides have agreed to divide their campaign funds, and let the floaters cast their ballots uninfluenced. Such conduct is of course held dishonorable by those sensitive people who furnished the money. 50. Relations of National and Local Politics. One of the reasons for the extraordinary hold of the ma- chine and the boss is the close relation between national and state politics. National issues are large, and attract the attention of the whole country : the tariff, currency, foreign relations, the army, the navy, interstate commerce, — these are subjects in which most intelligent persons are interested ; and the play of parties in Washington is on a grand scale. Although during the years from 1876 to 1896 the two great parties had no strongly contrasted policies, there was always a sharp division on minor questions. Party organs throughout the country naturally dwell upon these differences. Most men attach themselves to a party, and are interested in seeing it succeed, because such success means the advancement of a preferred policy, or at any rate the success of friends. In the states, however, the questions are local : whether there shall or shall not be heavy taxes on personal property, § 5o] National and Local Politics. 107 whether railroads shall or shall not be allowed to consolidate, whether prisons and asylums shall or shall not be placed under the control of a single executive board, — these are plainly questions not in any way dependent upon national policy ; and hence upon the face of it there is no reason why there should not be in every state two or more parties dividing on strictly state issues. Such parties existed in the colonies and in the early states. State questions arise and have to be settled ; there must be a division of opinion, but in practice, in every state in the Union, the parties correspond to the national parties ; and in elections people are concerned, not in choosing railroadites or anti-railroadites, not in choosing men who will vote for or against the sale of liquor on Sunday, but in choosing members of the Republican or Democratic or Prohibition party. The reason for this habit is plain : in order to carry national elections, the voters must be known, recorded by party man- agers, organized, and kept informed. Parties work in season and out to keep the voters from scattering and subdividing on state issues. Furthermore, those who are most successful in state pohtics pass into the arena of national politics : for instance, the governor aspires to become a senator of the United States, and must prove his claims by service, not only to the public, but to the party whose suffrages he desires. The same principle gets into city politics, where the relation with national affairs is even more remote. In cities the main issues are those of public works of various kinds, — streets, pubhc libraries, gas works, bridges, wharves, schools ; and there can be no Republican pavements, or Democratic bridges, or Prohibition schools. Yet in almost all cities the permanent political combinations are based on the national political or- ganizations : a man who wants to be mayor seldom is elected because he favors the things that the people want, but because he is accepted by the Republican or the Democratic organiza- tion as a good man ; and in local elections effort is made to choose, not so much men who will vote in accordance with io8 Party and Machine. [§ 5° public good, but men who will atct together for the ultimate good of their national party ; and it is in the cities that the machine and the boss have their largest work, precisely because the number of voters can be handled within very narrow territorial limits. The cities have also large numbers of pubHc serrants whose patronage is one of the most effective supports of the boss. It is quite conceivable that a boss might arise in a city on local issues, if they could be kept going long enough for him to perfect his organization ; but every power- ful boss aspires to control his state as well as his city, and for both he uses a perfected party organization. The evils of this connection have perhaps been exaggerated ; as a matter of fact, on a very large number of the measures brought before state legislatures, the members either exercise their discretion or vote as they are directed by their backers, without reference to parties. The harm is not that the states and cities try to conform their policy to that of the nation, but that the members of the state and local governments are nearly all nominated by party agencies ; and wherever the power of nomination has fallen into the hands of combinations and bosses, officials are not selected for their likelihood of public service, and hence do not command public confidence. In most cases, the voter must accept one or other of the candidates placed before him by the organizations. To meet this difficulty, various forms of non-partisan or citizens' movements have been devised. None of them have ever made much headway in state governments : the main check on excess of party spirit is that people who are suffi- ciently discontented with the conditions of the government unite with the opposition party .in good common nominations. This is a process which the boss is always afraid of, and which he will often prevent by making concessions. In some cities for many years together there have been citizens' or people's tickets irrespective of parties, and usually successful. A notable example is the city of Cambridge, Massachusetts, in which for twenty-five years, from 1876 to 1900, no man was § 5i] Reform of Party Methods. 109 elected mayor on a party ticket. The more common method is a form of citizens' temporary ticket, combining the dis- satisfied elements in all parties for an exigency; such a combination carried the city of New York in 1901. 51. Reform of Party Methods. So far in our history, there has never been a political evil for which alleviation and relief could not be found. The remedy for the party which has lost its conscience and continues with- out any purpose is to found a party upon vital issues. Thus the Whig party disappeared from 1852 to i860, and the Republican party took its place. The remedy for the con- ditions of the nomination system is not so easily brought about. The statutes so far passed for regulation of primaries by law have always proved inadequate, partly because of the inge- nuity of politicians to find legal ways to get round the intent of the laws ; and, further, because in such a system some state authority in the last resort must decide which party or which caucus is regular and therefore legal, and thus the state assumes the final decision in the internal affairs of a political organization. A remedy for over-organization is the so-called " Crawford County," or direct nomination, plan. Some weeks before election day, polls are open for the members of each party, and they express their preference for candidates of their own party. This system has been adopted in Minnesota ; attempts have been made to introduce it into Wisconsin ; and as an optional measure, or one appHed to special locahties, it is in use in Pennsylvania, Ohio, Mississippi, Oregon, and other states. Of course it requires careful legislation to prevent the voters of the other party from coming in and directing the nominations of their opponents ; the advantage is that it takes nominations out of the hands of "the organization." In this system of popular nomination the real difficulty is, however, only shoved back ; because in the end that man is iio Party and Machine. [§51 most likely to get a majority on a nominating ballot, who is known to have a great many friends ; or, what comes to the same thing, has the support of men who control large numbers of votes. It is doubtful, therefore, whether the result will not simply be the pre-designation of men as the favorites of the organization. Still, the system does put an immediate and wholesome check upon the designation of obviously unfit or unpopular men ; and if a man is really popular in his party, but has not the favor of the magnates, he may still secure a nom- inating majority. This method is intended to supplement not only the caucus but the convention, especially the cut-and-dried convention ; but in making up a convention ticket an effort is always made to secure representatives from various wings and geographical sections of the party, and from various elements of society ; therefore it is doubtful whether a ticket indicated by the nominating-election system would poll as many votes in a state as one selected in the usual way; and in close states voters will always be dissatisfied if they steadily lose elections. Nor is this method of much avail for independent or third- party candidates, since only regular adherents to a party can be permitted to take part in the preliminary election of their party. In city politics, the most effective elective reform is brought about by citizens' organizations. Societies are often effective in following up and exposing neglect or corruption among public officials ; such are the Watch and Ward Societies, the various civic leagues and municipal leagues, most of which take no direct part in nominating candidates. Citizens' organizations for making nominations are effective just so far as they imitate other political parties by themselves forming permanent organizations. In the city of Cambridge, for instance, there has been for thirteen years an association called Library Hall, which elects its own members. Its function has been to consider the nominations by other people, and to select out of all the names thus brought before it the candi- § 50 Reform of Party Methods. 1 1 1 dates it thinks most worthy of public support. The association thus avoids the charge commonly made against such organiza- tions, that it simply wants to substitute its own men for some- body else's men. Library Hall also publishes a useful account of the attention to public business by the members of the city legislature, such as the number of meetings attended, and votes upon interesting public questions ; that is, it attempts to place at the service of the voter a careful brief account of each candidate, of his qualifications for the work, and of his public service if he has previously been in office. Another method of reform is by taking advantage of public dissatisfaction on local issues, to work out an organization which may compete in making up a ticket. Such a movement must have a committee and campaign fund ; it must employ men to canvass the voters and to keep watch upon them at the polls ; it must provide speakers and places for them to speak. In the local campaigns in New York in 1897 and 190 1 such an organization initiated the method of speaking from wagons, which can be drawn from place to place, requiring no expense for halls, and bringing political discussion home to the voter. There is, however, but one ultimate relief from extreme party organization, and that is for a sufficient number of party voters to rebel when they think their organization is going against the public interest. This involves frequently a great sacrifice ; for a man having a genuine and rightful ambition to serve his fellows in public life knows that, if he breaks with "the organization," he is likely to be marked for life. Yet there is nothing so much admired by the American people as political courage ; if the old organization is destroyed, this power to boycott a man disappears, and there have been plenty of cases where by sheer force of character, by personal popu- larity, by representing a great principle, men have compelled unwilling organizations to accept them as candidates, and to throw influence in favor of their election. In all cases a good 112 Party and Machine. [§ 51 citizen may recall the organization to its purpose by voting for the opposition candidate in whom he has more confidence ; or, if he cannot make up his mind to forsake his lifelong party, by simply staying at home in sufficient numbers, he may administer such a rebuke as will never be forgotten. Part III. . State Governments in Action. CHAPTER VT. THE STATES AND THE UNION. 52. References. Bibliography: Channing, Hart, and Turner, Guide (1912), §§ 158, 159, 174, 17s, 178, 184, 195, 203, 206, 231, 241; Macy and Ganna- way. Comparative Free Govt. (1915), 719, 720 (cases); A. N. Holcombe, State Govt. (1916), 482, 483, 486; A. B. Hart, Manual (1908), §§ 105, 106, 149, 156, 160, 289. Colonial Precedents: H. L. Osgood, Am. Colonies in the Seven- teenth Century (1904-1907); J. Schouler, Constitutional Studies (1897), pt. i; J. Story, Commentaries (1873, 1891), §§ 159-178; G. T. Curtis, Constitutional History (1889-1896), I, chs. i-iv; L. G. Tyler, England in America (1904), chs. v, xii, xv, xviii; F. 'A. Cleveland, Organized Democracy (1913), chs. i-vi; C. M. Andrews, Colonial Self-government (1904), chs. ii-xi; E. B. Greene, Provincial America (1905), chs. i-v. — Sources: A. B. Hart, Contemporaries (1897-1901), H, §§45-74; A. B. Hart, Source Book (1899), §§ 48-51; C. A. Beard, Readings in Am. Govt. (1909), chs. i-v; A. Johnson, Readings in Am. Constitutional Hist. (191 2), pt. i. Principles of State Government: S. E. Baldwin, Modern Political Institutions (1898), chs. iii, iv, xi; J. Bryce, American Common- wealth (ed. 1910), I, chs. xxxvi-xlvi, App. p. 718; J. A. Woodburn, Am. Republic (1916), ch. vii; T. M. Cooley, Constitutional Lifnitations (7th ed., 1903); T. M. Coole}^, Constitutional Law (1898), chs. x, xi; A. N. Holcombe, State Govt. (1916), chs. ii-v, x-iv; Cyclop, of Am. Govt. (1914), Art. on State Governments, Characteristics of; H. Hitchcock, American State Constitutions (1887); F. J. Goodnow, Administrative Law (1905), 154-160. Federal Relations: E. McClain, Constitutional Law (1910). §§ 173-176; W. W. Willoughby, Constitutional System (1904), chs. iv-x; B. A. Hinsdale, Am. Govt. (4th ed., 1917), chs. xl-xlii, xlix; D. F. 8 113 114 States and Union. [§ 53 Houston, Nullification in South Carolina (1896); W. Wilson, Consti- tutional Govt. (1908), ch. vii; A. N. Holcombe, State Govt. (1916), ch. i; J. Bryce, Am. Commonwealth (ed. 1910), I, chs. ii, xxviii, xxxvi, xliv- xlvi; J. R. Tucker, Constitution (1899), I, chs. v, vii; II, ch. xiv; J. F. Rhodes, United States (1892-1906), V, ch. xxx; VI, ch. xxxi; E. P. Oberholtzer, United States (191 7-), I, chs. iii, vii; W. A. Dunning, Reconstruction (1907), chs. i-vii, xi, xvi; Cyclop, of Am. Govt. (1914), Arts, on Centralization, Growth of, in U. S.; Confederation, 1781- 1789; Federal State; Interstate Law and Relations;' NuUification Controversy; Reconstruction; Secession Controversy; Sectionalism in the U. S.; State Governments during the Revolution; State Rights; State Sovereignty; States, Admission of; States in the Union; U. S. as a Federal State; Virginia and Kentucky Resolutions; W. W. Wil- loughby, Constitutional Law (1910), I, chs. iv, x-xv, xxi; II, ch. xlvii. — Sources: C. A. Beard, Readings in Am. Govt. (1909), ch. viii; P. S. Reinsch, Readings on Am. Federal Govt. (1909), ch. xv; A. Johnson, Readings in Am. Constitutional Hist. (1912), pts. iv, v, ix. 53. Variety and Unity of State Organization. Historically and practically the states are the foundation of government within the United States. President Lincoln truly said in 186 1 : " The states have their status in the Union, and they have no other legal status," yet state organization pre- ceded national organization, and to this day underlies it. If all the states of the Union should cease to work, the national government would not, under the constitution, control a suffi- cient part of the domain of government to maintain itself. The cardinal principle of the present Union is that, except in matters distinctly regulated by the federal constitution, each state is free to govern itself. Hence great variety in the form and the functions of the state governments : for instance, the Massachusetts legislature sits nearly six months out of every year, and every one of the fifteen hundred bills introduced receives some kind of consideration ; the California legislature loses its salary if it sits more than sixty days; while the Alabama legislature meets only once in four years ; judges in Montana are elected for terms of six years ; judges in New Hampshire are appointed for hfe ; by the laws of New Jersey a money- lender cannot collect more than 6 per cent interest ; the laws of Idaho allow 1 2 per cent. § 53l State Organization. i 1 5 Such differences are not all accidental ; some of them go back for centuries : of the present forty-five states eighteen formed parts of English colonies before the Revolution, and show distinct traces of colonial tradition in their governments ; another group of states, from Louisiana to California, bears the impress of former Spanish and French law. Other commu- nities, such as Arkansas and Michigan, have been founded by those setders who first came in and brought with them famihar law from the old states. Local conditions also account for and require a great variety of legislation : lumber states, like Maine or Wisconsin or Wash- ington, have special laws governing forests ; stock-raising states, like Colorado and Texas, legislate on wire fences and branding cattle ; states with large areas of waterless lands, like Nebraska and Utah, provide for irrigation ; communities like New Jersey, with hundreds of thousands of foreign immigrants engaged in manufactures, need different legislation from a community like Vermont, with a rural American population. On the other hand, throughout the Union the state govern- ments are very much ahke, and legislation rests more on a com- mon basis than appears on the surface. All the governments have three departments, each intended to act independently of the other two. In all, the legislature, of two houses, is the repository of governing power not otherwise granted or ex- pressly withheld ; its legislative work is supplemented by the traditions of English common law. Most of the states elect the chief financial and other administrative and executive offi- cers. All have a series of courts, culminating in a single supreme court. In every state large areas of public power are transferred by the legislatures to cities and localities. The legislation of the states is freely borrowed one from another ; and the courts quote and follow decisions of their neighbors. Nevertheless, great confusion comes from the variety of criminal and civil legislation : for instance, marriage and divorce laws are such that a man may have two legal wives, J 1 6 States and Union. [§ 54 each entitled at his death to his property in the state in which she lives ; the descent of property is also different. The ad- vantage of the variety of state legislation is that the people of each state establish the system and make the laws which they think best adapted for themselves, and therefore the easiest to execute. In size and importance the states differ widely : the largest, Texas, has an area of 265,780 square miles ; the smallest, Rhode Island, only 1,250 square miles ; the most populous state. New York, has 7,300,000 people ; the least populous, Nevada, has 42,000 inhabitants; the Massachusetts population is 350 to a square mile ; in Wyoming it is i to a square mile. Texas is larger than Euroipean France ; New York has more people than Belgium and Holland together ; and several other states are large and populous enough to be a great country in themselves. Many of the states of the Union are made up of different and sometimes hostile sections : Illinois is divided into a wheat belt, a corn belt, and the city of Chicago. In such states few people are widely known throughout the state, and it is therefore diffi- cult for voters to judge of the quality of candidates. 54. Admission into the Union. The forty-six states have formed their relation with the Union by five methods : — (i) The thirteen original states joined in the Revolutionary War and the Declaration of Independence, and ratified the Articles of Confederation and the Federal Constitution. (2) Out of those thirteen states, five others have been formed by separation : Vermont out of New York in 1791 ; Kentucky out of Virginia in 1792 ; Tennessee out of North CaroHnaJn 1796 • Maine out of Massachusetts in 1820 ; West Virginia out of Virginia in 1862. It was expressly provided in 1845 that Texas might be cut up into not more than five states ; but that commonwealth has never shown any desire to break itself up. The only probable separation in future is that of the two peninsulas of Michigan. § 54] Admission. 117 (3) The only case of incorporation of an independent nation as a state is the admission of the independent republic of Texas, in December, 1845. (4) Another abnormal method was the creation of the state of California out of a region incorporated by treaty in 1848, which had never gone through the territorial status : the people were determined to have a state government, and Congress was obliged to acquiesce. (5) , Twenty-six states in the Union have been formed out of pre-existing organized territories by act of Congress, under the clause of the constitution : " New states may be admitted by the Congress into this Union ; but no new state shall be formed or erected within the jurisdiction of any other state ; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned as well as of the Congress." In addition, eleven states which, from 1861 to 1865, withdrew from participation in the federal government, were conquered and practically treated as disorganized territories ; eventually, they all accepted the terms proposed by Congress, and in 1870 the last of them was again recognized as a full and equal mem- ber of the Union. The usual method of admitting a territory is first to pass an enabling act, authorizing the people to form a constitution, to submit it to the voters of the territory for their approval, and then to submit it to Congress. Congress has several times delayed the admission of a state because it disUked the proposed constitution, particularly in the case of Missouri in 1820-21, of Kansas in 1856-58, and of Utah in 1890-95. The Ordinances of 1784 and 1787 both promised that Western states should be admitted " on an equal footing with the original states " ; and the same principle of equality has held for later annexations : each state has the same number of senators, the same constitutional privileges, and the same federal obligations. Nevertheless, about twenty-five states since ii8 States and Union. [§55 1802 have entered the Union under specific conditions : in 1802 Ohio had to make an ordinance, irrepealable without the consent of the United States, by which the new state was not to tax lands sold by Congress during five years after sale ; in 18 1 2 the Louisiana Act laid down the condition that the Mis- sissippi River was always to be free of toll; in 1820 the House of Representatives proposed to prohibit slavery in the future state of Missouri, and although this clause was finally left out, a clause was inserted to the effect that the state should not interfere with the rights of citizens of other states who might come into Missouri ; in 1864 Nevada was required to agree that slavery should never exist in the new state. The recon- structed states all accepted conditions with regard to negro suffrage and public debt. Plainly, the states are not equal, even though most of these conditions have been unimportant, like those as to the sale of public lands ; or temporary, like the provisions as to negro suffrage. When a territory is admitted as a state, all its pre-existing laws, unless inapplicable or contrary to the federal constitution, remain in force until altered by the new state. Hence in Louisiana the old French civil law has remained in effect even after statehood ; and in California and Utah there is still a body of Spanish law. 55. Privileges in the Union. States as members of the federal Union have large privileges, the first of which is representation in the Senate and the House ; and they all participate in the election of president. The con- stitution of the United States especially guarantees to each of the states a republican form of government. This clause was inserted partly in consequence of the Shays Rebellion in 1787, and was intended to authorize the federal government to aid and support a state government if attacked by insurgents. What does " republican government " mean ? That no state may have a formal oligarchic or monarchic system. But this § 55] Privileges. 119 clause does not apply to bosses who get actual control of a state government, since their rule is not hereditary, and since they keep up the forms of election. At least fifteen times rival state governments have been set up in the same state ; in such cases some department of the federal government, usually the presi- dent, must decide which is the legal body and therefore entitled to the guaranty. Repeatedly during the Reconstruction period, federal troops were called out to protect or disperse one of these rival governments. Another clause in the constitution authorizes the president to send militia or federal troops at the call of a state government which is in distress ; and such calls have repeatedly been made. The next right of a state is territorial integrity : it cannot be divided without its own consent. It is also to be protected from invasion by a foreign enemy ; hence it is the duty of the United States to represent the states in boundary controversies : thus Maine, from 1820 to 1842, insisted that the United States should make no compromise of territory disputed with Great Britain on its northern boundary. The states have also some important financial privileges. The United States has twice distributed considerable sums of money among them: in 1837 about $27,000,000; in 1891 about ;^2o,ooo,ooo ; and in 1790 it assumed about $18,000,000 of state indebtedness. These are small sums in comparison with the amounts given by the United States through the public lands : from first to last the United States has transferred to the states about 162,000,000 acres of public land for various purposes, land which, if carefully nourished and sold at its market value, would probably have produced $1,000,000,000. Since 1887 the United States has also made annual appropria- tions for the support of state experiment stations, and since 1890 for that of agricultural colleges, the whole amounting to about $2,000,000 a year. I20 States and Union, [§56 56. Interstate Obligations. The first group of state duties are those which they owe to one another as sisters and equals. The constitution specifies that " fiill faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state." This means, not that state authorities are bound to accept the acts of a neighbor as binding across the border, but simply that, if a decision has been made in Indiana, the' courts of Illinois are bound to accept the fact of the decision from an authenticated copy of the record ; but the jurisdiction of the Indiana court may still be questioned. The purpose is that, when a matter has been examined and the facts decided by a competent tribunal, it shall not be necessary to retry it in every other state. Nevertheless, two practical difficulties constantly arise : in the first place, the same man or estate or corporation may have property in several states, in each of which separate suits must be brought, perhaps on different grounds, in order to establish the title ; in the second place, no court is bound to execute the law of another state in the Union. The United States courts often have jurisdiction in cases of complicated property, especially those involving railroad and other cor- porations doing business in several states. Another obligation is the return of fugitives. While slavery lasted, the principle included fugitive slaves ; and by two suc- cessive acts, of 1793 and 1850, the United States government prescribed a method of capture independent of the state govern- ments. The captures were unpopular in many Northern states, and led to forcible resistance to the authority of the United States government, and to the so-called " Personal Liberty Bills" (1840-1861), which impeded the operation of the na- tional statute. On adoption of the Thirteenth Amendment, the fugitive-slave clause of the constitution became obsolete. Another obligation is the extradition of fugitive criminals; §56] Interstate Obligations. 121 but here the states must act. The usual method, in case a criminal takes refuge in another state, is to have him arrested and held for a few days, until the governor of the state from which he came may send a direct " requisition " to the gov- ernor of the state in which he is found, to authorize his return ; when such a document is granted, the police authorities allow the man to be carried beyond the state boundary. Requisi- tions are often refused, on the ground that the crime charged is unknown to the statutes of the refuge state, and sometimes because of personal hostility between governors. The system is one necessary for the protection of the community ; but the Supreme Court has decided that there is no way to compel a governor to do his duty, if he is indisposed. Another clause of the constitution provides that " the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." The purpose is to prevent states from interfering with citizens of other states who want to move about or to settle within their limits, whether by laying special taxes on them, or by excluding them from carrying on a lawful calling, or by withdrawing the right to use the courts of the state. Any citizen of the United States has this right to move about the whole Union, and t6 dwell in every state on the same terms as its own citizens. Another obligation (not expressed in the constitution) is comity, — that is, the duty of the states to act toward their sister states with courtesy, consideration, and good humor. For instance, inveighng a person charged with crime over the • border of a state and then arresting him, is not exactly a crime, but it is contrary to pleasant relations between neighbors. How far is one state obliged to take notice of the laws of another state? This is a branch of jurisprudence known in legal literature as "conflict of laws," or as "private interna- tional law.'' Our courts often take note of laws or decisions in other states or in foreign countries. For instance, suppose a Frenchman dies in New York leaving Parisian real estate to his 122 States and Union. [§57 son in Georgia ; the Georgia courts cannot avoid taking note of the French laws of descent, and may also apply the New York law. 57. Duties in the Union, and State Sovereignty. For the prosperity of the Union, the states must carefully observe their obligations to the Union. First of all, they are bound to keep up the forms of the United States government, — to carry out the federal laws by erecting districts for mem- bers of Congress and by electing senators ; and all state officers, executive, judicial, and members of state legislatures, are con- stitutionally bound to take oath to support the constitution of the United States and to maintain a republican government. The states are under obligation not to contravene the federal constitution by clauses in their state constitutions ; yet from 1865, when the federal constitution first prohibited slavery, till the constitutional revision of 1890, the Kentucky constitu- tion retained a clause to the effect that " the right of the owner of a slave to such slave, and its increase, is the same, and as inviolable as the right of the owner of any property whatever " ;'' but it was simply a dead letter. The states are also bound not to pass laws which in any way interfere with the prerogatives of the federal government : they must not tax federal prop- erty, directly or indirectly ; they may not even directly tax federal banks or the incomes of federal officials. When this principle is disregarded, it often leads to conflicts of author- ity between state and federal officers, and even between state and federal courts, as in Ohio in 1824. Usually a legal line between the two sets of authorities is drawn by a test case decided by the federal Supreme Court. The states are formally bound not to enter into compacts with one another, or with a foreign power, without the consent of Congress, or into any treaty, alliance, or confederation. This article is intended to prevent the formation of separate internal leagues and agreements, and applies to such organizations as the Confederate States of America, formed in 1861. §57] State Sovereignty. 123 The most important duty of the state is to remain in the Union. Long before the Civil War, the so-called " doctrine of state rights " was worked out to its logical consequence^, — that the sovereign rights of the state have never been surren- dered, and may legally be protected by forcible withdrawal from the Union. The basis of state rights and secession is the same, — namely, the assumption that the states are and always have been sovereign, independent, and free to dissolve a voluntary union. To settle a question of that nature on theoretical ground is . difficult ; but in practice no state in the Union has ever been sovereign, except Texas. No one of the thirteen original states ever made a treaty for itself, or a foreign war on its own ac- count ; throughout the Revolution all the states acknowledged a responsibility for the common national funded debt and paper money ; they all united in making a national army and navy, and in appointing national officers to command; during the weak Confederation the states admitted the sole authority of Congress to negotiate treaties, to coin money, and to do many other important acts. Even during the secession era of 1861- 1865, no one of the seceding states ever really acted independ- ently : at the earliest moment they went into a confederation, which directed their joint affairs during the war. In the opinion of the Supreme Court of the United States in passing on the Reconstruction acts, no one of the states was ever outside the territory or jurisdiption of the federal government after admis- sion within the Union. Chief Justice Chase called it " an indestructible union, composed of indestructible states." Practically, the result of the Civil War was to make it plain that a large proportion of the American people disbelieved the doctrine of state sovereignty, and that any body of states which in the future may attempt to assert that doctrine by actual secession will have to fight the rest of the states. Henceforth nobody can for a moment suppose that there can be such a thing as peaceful secession. Yet the states do retain a large 1 24 States and Union. [§ 58 number of absolute and undoubted rights. Consolidation of the Union would be almost as great a misfortune as disunion. 58. Functions of State Government. Although by tradition and by the Tenth Amendment to the constitution the states possess the powers not delegated to the federal government, the total body of such powers is in action much restricted. The states are by the federal constitution directly prohibited from the exercise of some specified powers ; thus no state can coin money, or gj-ant titles of nobihty ; no state can establish slavery, or deprive a citizen of the United Slates of citizenship, or deny the suffrage to citizens of the United States on account of race, color, or previous condition of servitude. Other powers are indirectly prohibited : for instance, no state can exercise jurisdiction over the District of Colum- bia, because the United States has exclusive jurisdiction there. There is a small field in which neither the nation nor the state can legislate : neither power may give preference to the ports of one state over another, or pass a bill of attainder or an ex post facto law, or deprive a person of life, liberty, or prop- erty without due process of law, or abridge the constitutionally- protected privileges or immunities of citizens. The area of excluded powers is very much enlarged by the particular provisions of state constitutions, especially by the bills of rights and the restrictions on legislation ; for example, many constitutions withhold the right to grant special charters to cor- porations, or to give public aid to railroads. The local govern- ments are still more tied up by withdrawals of powers nominally within their field. The result is that in America the possible functions of government are smaller than those exercisable by European nations, and smaller than they were a century ago. Nevertheless, there is still an immense field for legislation : thousands of new statutes are adopted every year, and thou- *§ 58] Functions. 125 sands of court decisions expound constitutions, statutes, and principles of government. The first group of fundamental state powers is concerned with individual rights : the states may confer privileges on citizens and aliens, including the suffrage ; and they continually regulate the ordinary relations of man with man, and of property (such as the right to acquire, to sell, to transmit by gift or will or by inheritance), as well as the relations of officials with private individuals. Included in this power is the enormously impor- tant right to create corporations, which have many of the privi- leges of individuals, such as the right to hold property, to sue, and to be sued. The next group of powers is territorial : almost the whole domain of private landholding. and transfer comes under the state governments ; the state owns public streets and roads, parks, and public buildings ; the state also enjoys and may delegate the great right of eminent domain, — the appropriation of private real estate for public purposes on payment of a reason- able compensation. The state makes and alters the network of territorial subdivisions, — counties, townships, school districts, towns, cities, boroughs, wards, voting precincts, judicial districts, and all the rest. The financial powers of the state are large. The common- wealths and their creatures, the local governments, raise in taxes about one and one half times as much per capita as is raised by the federal government ; and they expend all this and more, for they are constantly incurring debt. The commercial powers of the states are many fold greater than those of the nation, because -they control almost all private business not interstate, — manufactures and industries of every kind, and transportation within the state. Since the volume of business which begins and ends within a state is very much greater than that which crosses even one state boundary, the larger part of American commerce is directly subject only to state law. 126 States and Union. [§58' The states have the important military right to employ organ- ized force to keep order, if necessary. The police of the cities are really state officers ; the militia called out to execute the laws are under state command. Public health and morals are largely controlled by the states : epidemic diseases, dangerous pursuits, the question of the sale of intoxicating liquors, these are all practically out of the federal realm. Finally, to the state falls also almost entire control over the two great agencies of civilization, religion and education. f CHAPTER VII. STATE LEGISLATURES. 59. References. Bibliography: Channing, Hart, and Turner, Guide (1912), §§ 203, 272; F. A. Cleveland, Organized Democracy (1913), §§ 273, 285, 290, 303; P. O. Ray, Pol. Parties (1913), 411, 412, 438-442, 470-475; A. N. Holcombe, State Govt. (1916), 483, 484; A. B. Hart, Manual (1908), §§ 105, 106, 144, 161, 207, 243, 289. See also references in ch. vi above. State Legislature in General: E. McClain, Constitutional Law (1910), §§45, 46; P. S. Reinsch, Legislative M ethods (1907), chs. iv-ix; T. Roosevelt, American Ideals (1897), No. 5; Cyclop, of Am. Govt. (1914), Arts, on Committee Systems; Legislature and Legislative Reform; Rules (2 articles); State Legislatures; Veto Power; A. N. Holcombe, State Govt. (1916), ch. ix; F. A. Cleveland, Organized Democracy (1913), §§ 274-276, 283, chs. xxvii-xxix; A. L. Lowell, Public Opinion and Popu- lar Govt. (1913), ch. xvi; J. Schouler, Constitutional Studies (1897), pt. iii, ch. v; J. Bryce, Am. Commonwealth (ed. 1910), I, chs. xl, xliv, xlv. — Sources: C. A. Beard, Readings in Am. Govt. (1909), ch. xxv; P. S. Reinsch, Readings on Am. State; Govt. (1911), ch. ii. Legislation: E. McClain, Constitutional Law (1910), § 46; P. S. Reinsch, Legislative Methods (1907), ch. x; J. Ordronaux, Constitutional Legislation (1891), ch. x; J. A. Fairlie, Municipal Administration (1901), ch. xvii; Cyclop, of Am. Govt. (1914), Arts, on Codification; Uniform State Legislation; C. L. Jones, Statute Law Making (1912); F. J. Stim- son, Poptdar Law Making (1910); D. B. Eaton, Govt, of Municipalities (1899), ch. x. — ^Sources: N. Y. State Library, Summary of Legislation, Review of Legislation (annual volumes). The address of the president of the Am. Bar Assoc, each year usually includes a review of the changes in statute law. 60. Members of the Legislature. Since under the theory of American government the states retain all the powers not granted to the federal government, and since at the beginning the state legislature was the chief power in the state, it is a recognized principle that the legisla- 127 128 State Legislatures. [§ 60 ture may perform any act incident to government which is not by the federal or state constitution withheld or otherwise assigned. Hence it is the most powerful part of every state government. In every state the members of the legislature are chosen by popular suffrage. During colonial times and for many years later, many states had special qualifications for legislators : in two states, Maryland and Tennessee, no minister might be a member. In most states now, no holder of an executive office, state or national, may sit in the legislature ; in Indiana, even a bank officer is excluded from it. Property qualifications for office have now almost entirely disappeared ; and it is a rule showing very few exceptions that a person eligible to vote is also eligible to hold office. Everywhere throughout the United States it is either a written or an unwritten law that a member of the legislature must live in the district from which he is elected ; and the rule is practi- cally self-operating, for it is next to impossible to elect a man who is not a resident among the voters who choose him. With three exceptions, legislators are elected from districts intended to be about equal in population : in Connecticut, each town or city has one or two members of the lower house ; in Rhode Island each town or city has one senator ; in New Hampshire, every town of 600 inhabitants has a representative, and an additional one for each increase of 1,200 inhabitants, but towns of smaller population have representation a proportionate part of the time. In many states, the counties are the unit for districting for members of the legislature. The colonial idea of representation by communities has almost disappeared ; for to a modern mind it seems inequitable that a village of 75 voters in Connecticut should have half as much influence in the legisla- ture as a city of 15,000 voters. The term of legislators varies from one to four years, the usual term being two years ; but the continuance is very short, especially in the lower house : people do not recognize the § 6i] Organization. 129 advantage to a district of being represented by a man who has had long experience. In a recent New England legislature of 106, 100 had not sat in the previous legislature. The chance is about even that a member, no matter how serviceable, will not get a second term ; it is thought wonderful in Massachusetts that a particular member should have been eight years elected to the lower house. There is of course some advantage to the community in a large number of ex-members of the legisla- ture, acquainted with the methods of public business ; and the legislatures are a kind of school for ambitious men, who hope to pass from the lower to the upper house, and thence if possi- ble to other state offices or to Congress. In quality, the state legislatures fairly reflect the average man in the community, except that the inexperience of new mem- bers makes it easier for party leaders to manipulate their votes. As the work of the legislatures is tedious and often long, and the pay small, it is difficult to attract professional men who have large incomes. Wherever there is a highly-organized boss system, some members of the legislature come in really as representatives of particular politicians or of business men not known in politics : Theodore Roosevelt found in the New York legislature in 1883 one man whose vote was ' controlled by a criminal. The difficulty with legislators who are under obliga- tions to party chieftains is that they must follow the will of their leaders rather than the will of their own constituents. Never- theless, members of legislatures are in general very sensitive to public opinion, and most of them represent and express the wishes of the people who send them. 61. Organization of the Legislature. The state legislatures differ in numbers : Delaware has 1 7 senators ; Indiana has 50 ; the Delaware House has but 34 members; the New Hampshire House has 397. The average legislature, taking both houses together, has about 100 to 150 members. In all the states and territories, legislators are paid, 130 State Legislatures. [§ 61 the largest annual amount being ^1,500 in New York, the smallest annual salary ^150 in Maine. Many states prefer the per diem system, ranging from eight dollars a day in California to three dollars a day in several states ; in addition it is common to allow mileage, commonly at a rate much larger than actual expenses. In almost all cases, however, the salary and fees are too small to be an object in them- selves : most aspirants for the legislature seek it for reputation or power or opportunity. The official title of the legislative branch is commonly " legislature " or " general assembly " ; in Massachusetts and New Hampshire it is the colonial title " general court." The upper of the two bodies is invariably called the Senate ; the I lower house, sometimes the House of Delegates, more often the House of Representatives. Although three of the states of the Union — Pennsylvania, Georgia, and Vermont — at one time had legislatures of a single house, there are now two houses in every state. The two bodies represent different gatherings of constituents, and often exhibit permanent differ- ences of temperament ; and the bicameral system gives time for a thorough discussion of measures. Although the upper house in many foreign countries, as in England, France, and Canada, has become weaker than the lower, in the state legislatures the two houses have about' equal power, though the Senate, as the smaller, is more likely to do effective work. It frequently also has special functions, such as passing on appointments and sitting on impeachments. . The legislature habitually sits at the state capitol, or state house, in which is also the governor's office, and frequently a chamber for the state Supreme Court. Each house always has its separate chamber for meeting ; and usually a flag ap- pears over each wing of the building when the legislature is in session. The internal organization of the houses is determined by the state constitution. The Senate has in some cases an elective MINNESOTA I VJ ' r ! 5 . ^, ^^ 1, SI, a, t a i PROVIDENCE RHODE ISLAND STATE CAPITOLS § 62] Process. i 3 i president, but more often the lieutenant-governor of the state sits, like the vice-president of the United States, as presiding officer ; every lower house has its elective speaker. The habits of Congress have so far reacted on the state legislatures as to bring about almost the same system of internal organization, — a speaker, a body of standing committees, and a conclave of party leaders, acting as a steering committee. The speaker directs who may or may not have the opportunity of addressing the House, decides on points of order, and is a party leader, brought into consultation on any question as to the attitude of his party on pending measures. Many cases of conflicting houses, or even of legislatures, have occurred. In 1849 two so-called " houses " were organized at the same time in the same room in Ohio, and continued their double sessions for several weeks. In 1873 the Kellogg and McEnery legislatures sat in two halls in New Orleans till *the latter body was broken up by United States troops. 62. Process of State Legislation. In two states that have annual elections, — Massachusetts and Rhode Island, — and in four others, — New Jersey, Georgia, New York, and South Carolina, — the legislature meets every year ; in the other states, only once in two years ; in Alabama, only once in four years. The governor may summon a special session if the business is not completed, or if new business arises. Many of the constitutions limit the length of session to forty or sixty days ; and it is very common to cut off the per diem at the expiration of the specified time. The truth is that in many states people feel uneasy while the legislature is in session. During the session, the legislature commonly meets every week day, though in small states it is very common to adjourn over Saturday so that members may have two days at home ; and very often all the members have railroad passes, so that it is easy to come and go. As in Congress, each house has an elaborate system of rules, commonly reenacted from session 132 State Legislatures. [§62 to session with amendments, the prime object being to enable the presiding officer to bring questions down to definite issues, and to enable the majority party to select the measures upon which it wishes to allow a vote. The rules are further intended to prevent surprise, and com- monly include provisions that bills must be submitted in writing, must be read and passed upon not less than three times, must not go through those three stages without the intervention of a day, must be reported on by an appropriate committee, and must be duly authenticated by the signature of the presiding officer of each house. In most legislatures which are not absolutely under the thumb of a boss, there is plenty of genuine debate, more than in the national House of Representatives. Questions which personally interest members and affect their constituents are always coming up, and party lines are not drawn with any strictness on general non-political questions. All the state legislatures have the system of previous question, under which debate may be, and frequently is, remorselessly cut down ; without some such arrangement, the houses would never be done with debating. In every legislature, the rules of procedure are such that, if they are observed, it is next to impossible to shp a bill through without affording an opportunity of knowing its character and giving honest opponents an opportunity of debate ; but the rules may be so manipulated as to prevent discussion. Dead- locks between the two houses of a state legislature are not uncommon, and sometimes last for several weeks. A fre- quent result of a deadlock over a bill is that it fails for lack of agreement ; but a common way out is the appointment of a committee of conference from the two houses, which recommends some form of compromise. §63] Influences. 133 63. Influences on State Legislation. In the process of state legislation, the first question is that of initiative. While in some foreign countries bills must be intro- duced by the executive or by only one of the two houses, in the United States the initiative is not only in either house, but in any member of either house, and therefore in any constitu- ent or body of constituents who can induce a member to submit a bill. In fact, bills are often drawn beforehand by people who desire legislation. The governor has everywhere the right to recommend legislation in his annual messages, and doubtless sometimes he or his friends actually draw up bills for considera- tion. In all the legislatures, the final form is given to measures by the committees. The strongest influence, and the most effective in the long run, is public sentiment : if a question of taxation has been long discussed out of doors, the time comes when the legisla- ture is forced to act upon it ; a general railroad charter bill in which the whole community is interested will be pushed or held back, according as the pubHc throughout the state is interested. The public press is one of the means of expressing this interest ; another, and perhaps a more effective, way is through private letters and telegrams, of which hundreds sometimes pour in on a single member. Bills of every kind run the gauntlet of the committees, and the greater part are remorselessly smothered in private con- claves. To be sure, committees frequently have public hear- ings, and in some states must hold them if desired ; but their minds are made up in private session, and in almost every state, unless a committee will make an affirmative report, no vote can be reached. Hence a man interested in the passage of a measure goes to members of the committee which has it in charge. In some cases a delinquent committee can be awak- ened by a demonstration Hke that of the nine car-loads of people from Amsterdam Avenue, New York, who a few years I 34 State Legislatures. [§ 63 ago prevented the misuse of their street by going up to Albany to protest. In Massachusetts the committees are compelled to make a report either for or against a bill, and either house may, and frequently does, insert another measure for that pro- posed by the committee. The members of committees are appointed by the speaker or the president of the Senate, who thereby has more power over the course of legislation than any one else. It is hardly to be presumed that committees made up by the speaker will report measures of which he disapproves ; but, should they do so, the speaker will almost invariably interpret the rules of the House so as to prevent anything to which he is opposed from coming to a vote. This practice tends to legislative unity ; for upon one man is thrown the responsibility both of initiating measures through the committees and of reviewing them thereafter. The speaker of the House of a legislature is therefore, hke the prime minis- ter of England, the centre of systematic legislation, working through and in harmony with the members of the majority; and he frequently allows measures to pass to which he is personally opposed. In a few states there is behind the speaker the state boss, who controls the majority of each house, and hence the choice of the presiding officer. Sometimes the boss is governor; sometimes he acts in harmony with the governor ; sometimes he acts against the governor : in any case, no legislation will go through which he opposes ; and people who really desire to have a thing done, or to prevent it, are forced to appeal to him or to persons whom they suppose to have influence over him. Mr. Roosevelt found in the New York legislature, when an innocent measure was proposed to which presumably no objec- tion could be found, that certain members opposed it ; he then set to work to find out who their influencers were, and found that one was the creature of a federal official of the opposite party, and another of a corporation manager. When influence §63] Influences. 135 was brought to bear upon these owners, they gave expHcit orders to support the bill, and their members instantly changed front. In most states and in most years, the greater number of members are free from such paralyzing influences ; but there are cases in which the majority of the legislature are simply played as counters by hidden men of power. How far the members of state legislatures are influenced by money is hard to know. One of the few advantages of the boss system is that it makes bribery of a member quite inef- fectual, since he dare not under any circumstances vote other- wise than as the boss directs. Mr. Roosevelt thought that about one third of the members of the legislature when he knew it were open to some kind of money consideration ; and there have been cases in other states where honest members have laid on the speaker's table great rolls of bills which had been offered them for their votes. Even when a member is open to corrupt influence, it is more likely to take the form, not of cash, but of a privilege, or of shares of stock, to be made more valuable by pending legislation. Hundreds of men pass through the legislature without meeting the slightest effort to influence their votes corruptly, because they are perfectly well known to be above any form of bribery. One of the most frequent influences on legislation is the proc- ess called " log-rolling," by which various members agree that they will vote for the others' measure or part of a measure. For instance, if insane asylums are to be constructed, members of different counties will agree to vote for a bill to distribute the new buildings among their counties, and thus a majority for the whole bill can be obtained. Another method of influencing legislation is to introduce so- called " strikes," — bills not intended to be passed, but to be bought or shaken off" in some way : rich corporations are the unfailing objects of vexatious and unnecessary legislation, often carried along until some inducement is made to withdraw it. Where there is a legislative boss, he arranges those matters ; and I 36 State Legislatures. [§ 64 frequently, for a fixed contribution to the campaign fund, agrees that the corporations shall not be further annoyed. 64. The Governor's Veto. In forty-three of the forty-five states the two houses do not make up the whole of the legislative power, inasmuch as the governor has a qualified veto. The only remaining exceptions are Rhode Island and North Carolina, This veto power is practically found among the functions of the governors in all the thirteen colonies except two. The colonial veto, however, was absolute, whereas in all the states but one the veto may be and frequently is overridden by the later action of the two houses. In seven states a majority of all the elected members is required on such second vote ; in two states, a three fifths majority, in all the other states, a larger majority, from two thirds up. Nevertheless, in order to be effective the governor's veto must be definitely expressed : in all the states a bill becomes an act if it lies in the hands of the governor without examination for periods ranging from three to ten days. When the legis- lature adjourns before the expiration of this time, in eight states the governor has a period of from ten to thirty days to examine bills and decide whether he will veto or sign them. An interesting provision, which obtains in about twenty states, is that the governor may select items out of an appropriation bill for his veto, permitting the rest of the bill to go into effect. The effect of the governor's power is not measured simply by the number of bills vetoed: the fact that the governor is opposed to a measure often causes it to be modified or with- drawn ; or a conference is held with the governor by those in- terested in the bill, and modifications are made to meet the objections which he puts forward. Veto messages usually call public attention to a measure ; and in many instances bills which have gone through by large majorities are made so un- popular that on a second vote they have not even a majority. STATE OF WISCONSIN. -5^ No. 98, A. January 23, 1001. — Introduced by Mr. STEVEN'S. Read first and second times and referred to committee on Privileges and Elections. To abolish political caucauses and conventions and provide for political nominations by di- rect vote. Tiie people of the State of Wisconsin, represented in senate and assembly, do enact as follows? Section 1. All statutes pertaining to political caucuses and conventions for the nom- 2 ination of all officers provided for in this act are hereby repealed. Section 2. Hereafter, all candidates to be voted for by the ptople, except those for 2 judicial, village, township or school district offices, or at special elections to fill vacan- 3 cies, shall be nominated either at a Jjrimary election, held in accordance with this act, 4 or by petition in accordance with sub-division 3 of section 30, of the statutes of 1898. Section 3. Primary elections shall be held at the regular polling place in each elec- 2 tion precinct in this state,, on tho first Tuesday in September, 1902, and biennially 3 thereafter, for the purpose of nominating candidates to be voted for at the next general A LEGISLATIVE BILL ^6s] Output. 137 much less the necessary two thirds or three fifths. Upon the whole, the veto power is one of the most salutary parts of the system of state legislation ; for it may be applied to bills which have been smuggled through the two houses without a clear understanding of their intention, or it may be invoked by public opinion as the last opportunity to defeat an undesired measure. 65. Output of State Legislation. In most state legislatures, distinction is made between public legislation and private bills — that is, bills which apply to only one or to a few persons, and which therefore are based on local or temporary considerations. Many state constitutions abso- lutely prohibit private legislation, or even legislation intended for a particular city : the Pennsylvania constitution, for instance, has thirty-two sections prohibiting the passage of local and pri- vate bills on various subjects. Some cases for relief to a single individual occur, — as, for instance, when a public officer is robbed of public funds ; but in general private bills do not interest the legislature, are not examined carefully on their merits, and are passed by a system of log-rolling. One of the great abuses of legislation is the granting of special charters to banks, railroads, and other corporations. Under a more enlightened system general statutes are passed with great detail, prescribing the form of all banking or rail- road corporations ; and in order to get a charter these general conditions must be fulfilled. Taking public and private bills together, the number is prodigious. In the year 1899, ^^^^ forty-five states appear to have passed more than 5,000 statutes, besides many private bills; the state of Massachusetts in the five years from 1S91 to 1895 put upon the statute-book 2,986 statutes; New York, in the one year 1895, passed 1,045 statutes. The result is that within a state the law is constantly changing so rapidly that neither public officers nor lawyers can keep track of it. The details of statutes may be shown by a few examples : one 138 State Legislatures. [§65 statute incorporates gun clubs ; another prohibits the use of fire-crackers on the public highway ; another makes a new charter for a great metropolis ; another empowers towns to build bicycle paths ; another exempts family pictures from seiz- ure for debt. Bills have repeatedly been introduced into legis- latures for the taxing of bachelors ; and in one state druggists are forbidden to sell any patent medicines which they have not themselves tested. In the Southern states especially, there is a large amount of local legislation, — such as bills permitting Harding County to prohibit the sale of liquor, prohibiting hunting on Sunday in Garrett County, authorizing Scott County to tax itself for a railroad, and so on. Everywhere there is far too much legisla- tion as to local governments and corporations : new charters are altered by special acts, followed by amendatory acts, suc- ceeded by partial repeals, until the whole law is in confusion. To obviate this difficulty, it is the habit of most states to codify and consolidate the laws by issuing every few years a volume of revised statutes, from which amended, repealed, obsolete, or temporary statutes are excluded. Many other countries, espe- cially France and those under French influence, have elaborate civil and criminal codes, prepared, like a constitution, in a number of sections, and attempting to cover the whole field of human rights and responsibilities. Such codes simplify the law by superseding all conflicting statutes ; but the new laws speedily alter ; and under our system of judicial examination any para- graph of the code may require judicial decision before its meaning can be ascertained. It is of course necessary that, as the community advances, the laws shall keep pace with new conditions. New political dangers arise against which there must be reform legislation, great corporations assume new importance and must be curbed by new laws ; but confusion comes from the rapid change in the membership of the legislatures, and the habit of hasty legis- lation without a working out of all the details. §65] Output. 139 An effort has for some years been making for agreement between the statutes of various states ; and conferences are held from year to year, by commissioners representing the various states, to draw up statutes on such subjects as the execution of deeds and wills and the responsibility for commercial notes : the legislatures are then asked to enact identical laws. CHAPTER VIII. STATE EXECUTIVES. 66. References. Bibliography: Channing, Hart, and Turner, Guide (191 2), §§ 203, 272; F. A. Cleveland, Organized Democracy (1913), §§ 314, 324, 336; A. N. Holcombe, State Govt. (1916), 484; A. B. Hart, Manual (1908), §§ 105, 106, 208. See also references to ch. vi above. The Governor: P. L. Kaye, Colonial Executive prior to the Resto- ration (1900); E. B. Greene, Provincial Governor (1898); F. J. Goodnow, Administrative Law (1905), 94-110; T. M. Cooley, Constitutional Limi- tations (7th ed., 1903), 218-222; Cyclop, of Am. Govt. (1914), Art. on Governor of the State; J. H. Finley, Am. Executive (1908), chs. i, ii, xi. — Sources: P. S. Reinsch, Readings on A^n. State Govt. (1911), ch. i; lists of governors in Tribune Almanac, World Almanac, Atn. Year Book, etc. Executive Departments and Boards: F. J. Goodnow, Adminis- trative Law (1905), bk. ii, ch. iv, pt. ii; J. Bryce, Am. Commonwealth (ed. 1910), I, ch. xli; J. A. Fairlie, Centralization of Administration in N. Y. State (1898); A. N. Holcombe, State Govt. (igi6), ch. x; F. A. Cleveland, Organized Democracy (1913), §§ 315-317, 322, 325-335, 344, 345; A. L. Lowell, Public Opinion (1913), ch. xvii; T. Roosevelt, American Ideals (1897), No. 8; S. E. Sparling, State Boards of Control (Am. Acad. Pol. Sci., Annals XVH, 74-91, 1901); Cyclop, of Am. Govt. (1914), Arts, on Boards, State Executive; Civil Service, State; Commissions in Am. Govt.; Executive and Executive Reform; Executive Power; Recall; Removal of Public Oiificials; State Departments, Heads of; State Executive; B. Wyman, Administrative Law (1903). — Sources: C. A. Beard, Readings in Am. Govt. (1909), ch. xxiv; P. S. Reinsch, Readings on Am. State Govt. (191 1), ch. v; reports of the various executive com- missions in the states and -cities, especially on water, parks, streets, railroads, public lighting, prisons, asylums, and poor. 67. The Governor. As the legislature is divided into two houses and many com- mittees, so the state executive is broken up into several related parts, — the governor, the heads of the great departments, and the minor executive ofificers, — often acting independently of each other, sometimes at cross purposes. The governor is 140 §67] The Governor. 141 everywhere elected by popular suffrage, although in some states, especially Rhode Island, the legislature may choose if there be no majority. The term of the governor is in a few states one year only, in about half the states two years, in the remaining states usually four years ; in some states he cannot be elected to two succes- sive terms. In practice, popular governors in states with a short term are likely to be reelected for one or two terms ; in Massachusetts, a one-year state, it is an unwritten law that the governor must not serve more than three terms ; in most two- year states a governor stands a good chance of being elected for a second term ; in a four-year state he is not likely to be reelected at all. This has not always been the practice of the states : from 1799 on, four Vermont governors filled thirty-three out of forty- four years; John Hancock was eleven times governor of Massa- chusetts ; Jonathan Trumbull was seventeen times governor of Connecticut ; George Chnton was for twenty-one years governor of New York. The only case of the kind within recent years is Robert E. Pattison, who between 1883 and 1895 served two terms of four years each as governor of Pennsylvania, and was a candidate again in 1902. When the new states were formed, several of them tried the experiment of having an executive board at the head of the state, — thus in Pennsylvania and Massachusetts there was an "executive council"; but by 1790 all had adopted the sys- tem of a single head. The dignity of the -office of governor is high. In a few states there are governors' mansions, a convenience which ought to exist in every state. The governor has a salary, ranging from $1,500 a year in Vermont to $10,000 in New York, Pennsyl- vania, and New Jersey. The duties of the governor may be classified as political, administrative, and social. As a political officer, he represents the commonwealth in its relations with the federal government 142 State Executives. [§67 and with other states in the Union ; he makes representations of the rights of his state in cases of dispute ; he has power to summon the legislature, to advise it, and to veto bills ; he may designate a United States senator, in case of vacancy, to serve until the next session of the legislature ; and a frequent ambition of a successful governor is to make his office a stepping-stone to the Senate. The governor has important administrative duties, most im- portant of which are the power of appointment of minor officers and of some department heads, and a circumscribed removal power. As head of the state military system, he has the right to designate a staff, who receive complimentary military tides and who accompany him on occasions of ceremony ; he is responsible for the execution of the laws, and may even call upon his military force to put down mobs and insurrections and protect the officers of the government. He supervises other executive officers, may investigate their conduct of business and stimulate them to the performance of their duties ; and with few exceptions, the governor has an unhmited power of pardon over offences committed against the state. Among the social duties of the governor is that of attending public meetings and celebrations, funerals of noted men, the graduating exercises of state universities ; of opening fairs and exhibitions ; of dedicating buildings and christening ships. Gov- ernors are always in request as speakers on public occasions, and frequently find this service exhausting; some excellent gover- nors have died in office because of the fatigue of constant public speaking. Thirty-three of the states have lieutenant-governors, who in most cases are presidents of the Senate, and occasionally have other small functions. In some states, when the governor is out of the state, the heutenant-governor fulfils his duties ; and in two recent instances they have used this power to make important appointments during absences of a few hours. The lieutenant-governor becomes important in case of the death or §68] Governor. 143 the disability of the governor, because he takes his place during the remainder of the term. 68. State Executive Departments. In every large community the executive business must be divided ; and most governments have either the parliamen- tary system of an executive committee of the legislature, or the United States federal system of appointive heads responsible to the chief of the state. Only one of the forty-five states of the Union has adopted either of these two efficient systems : in every state, some of the chief executive officers, and in most of the states all of them, are elected, and are often chosen at differ- ent times from the governor, to whom they are not responsible. This is perhaps the weakest feature of our state governments, because it makes it impossible to carry on the various depart- ments with due relation to each other, because the governor has little power over officials who are not doing their duty, and be- cause both governor and department heads seek to check each other by securing acts from the legislature. The principal important state officials are the secretary of state, who has charge of the records and seal of the state ; the state treasurer, through whose hands pass the public moneys ; the attorney-general, who gives legal advice to the governor and other officers and is responsible for the prosecution of criminal suits ; the comptroller or auditor, who is the bookkeeper of the commonwealth ; the head of the public instruction of the state ; and the adjutant-general, who has direct charge of the militia. In a few states, as Massachusetts, the governor has also an ad- visory council, the relic of a similar council in the colonies. This body has the right to veto some of the governor's acts, and thus to limit his power without adding to his efficiency. The reason why the state administration is not better organ- ized goes back to the colonies, which were all jealous of their governors' appointments, and in many cases set up an elective treasurer and sometimes other smaller officers. Hence, in the 1 44 State Executives. [§ 68 early state constitutions the power of the governor was cut down, and other officers were chosen as a check against what, it was feared, might become a despotism. At first the legisla- ture appointed many of these officers, and in some states does so still, — for instance, the superintendent of education in New York State. With few exceptions, the important executive officers go through the regular process of nomination and choice by gen- eral suffrage at a regular election ; in Pennsylvania the attorney- general, secretary of state, superintendent of education, and some other officers are appointed by the governor. These officers are all paid salaries, usually too small for the responsi- bility. The most lucrative office is that of state treasurer, for in some states, either with or without warrant of law, he deposits state funds in banks which will agree to pay him the interest. In case of the failure of such banks, the treasurer is left in a very difficult position. In addition to the officers just mentioned, there is a host of commissionerships and executive boards, most of them appointed by the governor with the approval of the state Senate. Most of these officers serve for brief periods, and are subject to removal by the appointing power — the governor or the legislature, as the case may be. In practice, the relation of the governor with other executive officers is one of friendly cooperation, if the individuals feel kindly toward each other ; but they may represent opposite parties and have conflicting purposes. The governor can get the public ear through his messages ; but deadlocks are frequent between the governor and the treasurer or the auditor or the adjutant-general. The legislature is likely to side with one or the other of the parties ; and it is hard to get rid of an elected official during his term, except by the unusual process of impeachment. Minor state officials are responsible to their immediate chiefs, and are out of the province of the governor. §69] Departments and Boards. 145 69. System of State Boards. In every state large executive powers are exercised through boards, a form of state government that is at present much increasing. Some of these boards are highly paid, and the members give a large part of their time to the pubhc service ; others are underpaid ; others act without pay. The advantage of the board system is that there is a variety of counsel, and an opportunity for representing various sections of the state. One of the few places in the state government where parties are officially recognized is in the so-called " non-partisan " boards, — for example, a board of police, or a board of election commissioners, which must be composed of members of more than one political party. This system in practice works badly, because, so far from being non-partisan, it usually makes a board bi-partisan and introduces a permanent opposition ; or else the members come to an understanding that the patron- age and privileges shall be divided between their parties. Of all executive officers, " non-partisan " boards are the least satisfactory. Many boards are organized for some particular state ser- vice. There are 25 boards of railroad commissioners, more than 30 boards of health, 20 fish commissions, about 25 bureaus of labor, besides gas commissions, police commissions (organized in large cities under special state law), prison com- missions, boards of education, and the like. In addition there are many boards of local state institutions, such as trustees of lunatic asylums, penitentiaries, and normal schools. In the commonwealth of Massachusetts alone there are more than three hundred persons who are members of various executive state boards, each of which feels a considerable degree of independence within its own limits. The organization of boards is everywhere much the same : a chairman, commonly designated by the appointing power, sometimes elected by the board ; a secretary, in many instances 10 146 State Executives. [§70 the executive officer of the board, and in rural states likely to be the only salaried member. The boards have records, offices, clerks, and small allowances for travel and incidental expenses ; and each has the right of investigation within its province. The result is the subdivision of public business into small blocks, instead of its concentration into a few large departments, as is the case under the national government ; and the boards act independently of each other, and often of the governor. Even if the governor has a removal power, it is difficult, sometimes impossible, to fix responsibility among a board of several per- sons. On the other hand, the commonwealth has the service of a large number of public-spirited citizens, sometimes holding their places for many years together. Discontent with the board system has led to some concentra- tion of the powers of separate small boards. Thus the care of the insane, the prisoners, the feeble-minded and defective, in about one third of the states in the Union is subject to the general supervision of a single board of charities and corrections, which examines the accounts of all the local boards, and sees to it that the laws are observed and that humane and intelligent treatment is secured. 70. State OfScials. Under the general control of the governor, the heads of the large departments, and the executive boards, are the various classes of subordinate officers, principally employees of the executive departments, supplemented by the much larger body of employees in state institutions. In general these persons are appointed by the head of their department : the attorney- general appoints his subordinates, the state park board the park laborers, and the state treasurer his clerks. The largest body of state officials are the teachers in the public universi- ties and schools. The instructors in state universities are commonly appointed by a board of regents ; in state normal § 7i] Officials. 147 schools, by local boards of trustees or a state board of educa- tion ; in the public schools, — primary, grammar, and high, — they are almost invariably appointed by the local authorities. It is difificult to estimate the number of employees of a state ; but, leaving out of account municipal and local officials, it probably averages 1,000 in a state, or nearly 50,000 in all. Another class of state officials are the local officers, who will be considered in connection with local government. They are created by an emanation of state authority, and so far forth belong to the commonwealth service. Furthermore, in a few states the local officials, even the mayors, are appointed by the governor ; and in some cases county officials are appointed by the legislatures. State officials frequently hold for a brief specified term ; in most of the states they are subject to removal for any reason that seems good to the appointing power. If a new governor appoints a new set of commissioners, they will almost infallibly displace a large number of their subordinates ; hence the tenure of state office of any kind is usually insecure, and most people prefer the national public service. 71. Givil Service Reform in States. The purpose of government is presumably efficient public ser- vice at the least cost and with the least limitation of personal liberty to that end. The state constitutions lay down principles, and the legislatures pass statutes ; but the er^d is not served unless some executive power puts them into operation. The state executive has two kinds of power, (i) The carrying out of duties assigned by the constitution or by statutes : if a legislature enacts that a state capitol shall be built by a commission appointed by the governor, no capitol will be built unless the governor appoints the commission. The commission makes contracts, and the contractors are compelled to carry out their agreement. (2) Administrative duties : somebody must regulate the internal relations of officers 148 State Executives. [§ 7» of government, and find means of securing the performance of duty. Administrative law in most foreign systems of govern- ment is recognized as separate from either common law or constitutional law ; in the United States, administrative relations, exist and are parts of the system, but are not separated from the ordinary constitutional law. The most significant part of administration is what we call the civil service, — namely, the body of non-military persons who serve the various agencies of government, national, state, and local. In colonial times, subordinate executive offices were com- monly held for a long time. The Revolution displaced most of the holders of such offices, and thus suggested the system of political removals. In Pennsylvania and New York, the system of pohtical proscription was well developed by 1800 : when the Livingstonians got possession of the state of New York, the Clintonians were proscribed ; when the Clintonians came back, the Livingstonians went out. In every state in the Union the system speedily became rooted, so that now the choice of a new governor may result in the dismissal of the fireman of a court-house boiler, or of the woman who washes the steps of the state capitol. Such frequent changes demorahze the service, since good conduct and attention to business do not keep a man in office ; and the bestowal of pubhc office becomes a subject of bargain and intrigue, till political campaigns are sometimes carried on for the main purpose of controlling the patronage. To meet this difficulty, two states of the Union, New York and Massachusetts, have adopted an elaborate system of "civil service reform," by providing that appointments to the minor posts be made by another method than by political influence on the heads of offices. The reform method, commonly called the " merit system," includes two essentials : first, that unin- telligent and uneducated, persons shall not get in at all ; secondly, that intelHgent persons who wish to serve the state shall have an equal chance to seek appointment. Under the § 7i] Civil Service Reform. 149 old-fashioned "spoils system," public office was absolutely closed to adherents of the party out of power, and also to thousands who voted with the party in power but had not the personal friendship of the politicians. The only practical sub- stitute is competitive examination. The one state in which this reform is established by the state constitution is New York ; in Massachusetts it depends upon a strong series of statutes, backed up by public opinion. In both states examinations are held for different kinds of employment, as clerkships, inspectors, watchmen, attendants in hospitals, and the like. The examinations deal not only with book matters, but with practical points : for instance, a candidate for the police must stand a test of his physical condition, and of his quickness and capacity to deal with a new problem. The list of persons who have successfully taken the examination is ar- ranged in order of their marks ; and when a vacancy occurs, the three highest names are certified to the appointing power, who must choose one of the three. Since the likelihood of a par- ticular favorite being one of the three is small, the appointing power, if he knows nothing of the three candidates other than is shown in their examinations, will usually choose the highest. After entrance into the service, an appointee remains on proba- tion for a brief period, before having permanent employment. For the employment of laborers, where any intelligent, able- bodied man will answer, there is a registration list, from which alone appointments shall be made to the state service. The statutes absolutely forbid anybody from demanding con- tributions for political purposes, and also forbid an examination into political or religious opinions. The principal exception to the provisions of the system in both states is that of veterans of the Civil War, who have a preference for appointment if they pass the examinations, and, in Massachusetts, in a few cases without examination. The merit system does not give the em- ployee an indefinite right to his office : he is subject to removal if he is incompetent or insubordinate. 150 State Executives. [§71 The system is not easy to administer ; loopholes are con- stantly found in it by people who wish appointments by favor rather than by merit. Large numbers of public servants are not included within the laws at all ; but it has been conclu- sively proved that appointments made by this method secure people who are as likely to be good public servants as those appointed simply by favor, that the pressure upon appointing officers to make political appointments and removals is much relieved ; and that by putting offices out of the control of a temporary majority the opportunities of political corruption are reduced. Neither New York nor Massachusetts shows a desire to return to the old condition of things, and the reform is likely to spread to other communities. Similar systems in local gov- ernments and in the national service will be described in their places. CHAPTER IX. STATE COURTS. 72. References. Bibliography: Cyclop, of Am. Govt. (1914), I, 675; II, 262; III, 397; Channing, Hart, and Turner, Guide (1912), §§ 203, 272; F. A. Cleveland, Organized Democracy (1913), § 346; A. N. Holcombe, State Govt. (1916), 485; L. A. Jones, Index to Legal Periodical Literature (1888-1899); A. B. Hart, Manual (1908), §§ 105, 106; E. McClain, Constitutional Law (1910), § 137. State Courts in General: E. McClain, Constitutional Law (1910), § 139; J. Bryce, Am. Commonwealth (ed. 1910), I, ch. xlii; II, chs. civ, cv; F. A. Cleveland, Organized Democracy (1913), ch. xxxiii; W. L. Ransom, Majority Rule and the Judiciary (191 2); A. N. Hol- combe, State Govt. (igi6), ch. xi; G. E. Roe, Our Judicial Oligarchy (1912); Cyclop, of Am. Govt. (1914), Arts, on Equity; Equality before the Law; Executive and Judiciary; Judiciary and Judicial Reform; State Judiciary; S. E. Baldwin, Am. Judiciary (1905), chs. viii, x, xi; J. F. Dillon, Municipal Corporations (5th ed., 1911), IV, chs. xxix- xxxii; Am. Bar Assoc, Reports. — Sources: C. A. Beard, Readings in Am. Govt. (1909), ch. xxvi; P. S. Reinsch, Readings on Am. State Govt. (191 1), chs. iii, iv. The organization of state courts is set forth in treatises on Am. law. Decisions: J. W. Wallace, Reporters (4th ed., 1882), 561-591; Century Edition of the American Digest (to 1896), Decennial Edition (1897-1906), and Key-Numher Series (1907-) (99 vols., to 1917, 1897-). 73. State Judges. In all civilized governments the courts play the important part of applying to specific cases the principles of tradition, written constitutions, and statutes. If, for instance, a statute provides that a widow shall have a third part of the personal property of her deceased husband, and the executors refuse to transfer it to her, the widow may then bring suit against them for her share ; and the liability to suit prevents their giving good title to anybody else, besides which they are subject to damages if they refuse to turn it over to the legal owner. In declaring what are the legal rights of the parties to the suit, the court must point out and apply the statutes, constitutions, and traditions which govern the descent of property. The courts 151 152 State Courts. [§73 have, therefore, more opportunity than the two other depart- ments of government to bring the law home to the case that it fits. The basis of the bench is the bar, — that is, the body of practising lawyers, from whom have come most of the dis- tinguished American statesmen, among them Hamilton, Jeffer- son, Daniel Webster, Henry Clay, and Abraham Lincoln. Lawyers are in the main conservative people, accustomed to respect established precedents and to depend upon written and printed records. Until a few years ago it was easy for a young man to get enough law to be admitted to the bar ; at present, many states insist upon rigorous written examinations, intended to secure at the outset a considerable knowledge of legal principles. The constitutional qualifications for state judges are few. Some states require that a judge shall be learned in the law ; and in practice judges are always taken from the bar. In some states judges must be of mature age, and in all states they are likely to be at least in middle life. Judges are not allowed to sit on any case in which they have a personal interest. How are judges designated ? In colonial times the judges in eleven colonies were appointed by the governor or the crown, and in two by the legislature ; in only one of the thirteen states were the judges elected by the people. Gradually, however, the principle of popular election spread, until now in 32 states judges are elected by the people, in 5 states by the legislature, and in 8 only are they appointed by the governor. Upon the face of it, an elective judiciary is less likely to be learned, wise, and impartial than an appointive : the most popular man is not always the wisest jurist; and it is human nature for a judge to remember that his chance of reelection depends upon the kind of decisions that he renders. In 1787 the Rhode Island legis- lature refused to reelect the old bench of judges because it had made an unpopular decision on paper money. In Illinois, in ''^73j ^ judge was defeated at the end of his term because of §73] Judges. 153 his opinion upon a question of railroad rates. Since the state Supreme Court has always more than one judge, some in- stances have occurred of *' packing " a court in order to pro- duce a particular decision. . Thus in 1841 Stephen A. Douglas was put upon the Supreme Court of IlHnois, in order to make a majority for a decision with regard to the vote of aliens. Nevertheless, the elective judiciary works better than might have been expected. In the first place, nominations of judges are carefully scrutinized, and a ticket otherwise poor is some- times strengthened by putting on respectable judicial candidates. Secondly, in some states, especially in New York, the Bar As- sociation pays a great deal of attention to judicial nominations, and sometimes formulates a strong protest against persons sup- posed to be unfit. In the third place, experience on the bench is very apt to steady those who previously have been political partisans. The term of judges, whether appointive or elective, is in most states too short. In Vermont they are chosen by the legislature for only two years ; in Pennsylvania the term is twenty-one years by election ; in only four states — Delaware, Massachusetts, New Hampshire, and Rhode Island — are judges appointed for life, or virtually for life. The compensa- tion of judges is commonly much less than the ordinary profes- sional income of good lawyers. In Vermont the Supreme Court judges get salaries of $2,500 ; in New York there are some salaries of $17,500 a year. In a few states there is a provision for the retirement, upon a pension, of judges who have served long and faithfully. In some states judges can be removed by a joint protest of the legislature, but the more common method is by impeach- ment before the state Senate. There have been about forty such attempts to remove, and a few judges have actually been removed ; in other cases judges have resigned under impeach- ment in order to avoid conviction. In New York one judge was impeached, and another compelled to resign, for violence 154 State Courts. [§ 74 and illegal behavior on the bench ; one was a Tweed Ring man, the other a creature of James Fisk, Jr., in his attempt to steal the Erie Railroad. Executive officials, as well as judiciary, may be impeached or removed ; and one Western governor has thus been removed from office. With an elective judiciary, however, the simplest way to get rid of a bad man is to mark him for defeat at the next election. 74. State Courts. State judges are organized into courts arranged in a progres- sive series. In Massachusetts, for instance, there is a system of police and municipal courts in large cities, with additional justices and two special justices, each sitting in a separate place ; in each county there is also a probate court, in charge of wills and inheritances ; in each county there is a district court, with a district attorney, and the judges are assigned according to the needs of the service ; above this is a superior court, the eighteen judges of which have a salary of $6,500 each ; above this is a supreme judicial court, with seven judges, at a salary of $8,000 each. The chief justice in each of the two systems has $500 extra salary. Appeals may in general be brought from district courts to the superior court, and from the superior court to the Supreme Court ; they may also be brought from the probate court to the Supreme Court. Under this system, small cases usually fall first to a lower court ; then, if appealed, to the middle jurisdiction, whatever it may be ; and thence to the highest state court. The result is unification of decisions throughout the state ; and the Su- preme Court takes pains, so far as possible, to follow its own precedents, so that there may be a traditional unity. The details of organization and administration, the methods of appeal, the kinds of question which may be brought in origi- nal suit before a lower and a higher court, the relations of the general system of state courts to municipal courts, — all these questions are subject to great variations from state to state. § 7s] Organization. 155 Everywhere the principle is the same : that questions of law shall be transferred from court to court, up to the highest state court ; and especially that questions of personal rights and other constitutional privileges shall be eventually settled only by the highest court. In addition to the regular courts, there are in most states justices of the peace, with jurisdiction over small offences and suits ; these may be considered, perhaps, as a fourth system of inferior courts. In some states there is a provision for courts of conciliation, or for tribunals of arbitration ; but these are rather a means for umpiring disputes than for settling them under the principles of law. Probate courts act with little for- mality where there is no opposition ; but in hotly-contested will cases they may spend days in hearing testimony and arguments, and make decisions on questions of law, subject to examination by a higher court. 75. Criminal Law and Jurisprudence. Perhaps the most obvious purpose of the courts is to try criminal cases and other offences against the community. Such cases may be suggested by the injured person or his friends, but must be tried by a pubhc prosecutor. The usual penalty is fine or imprisonment, or both ; and in most states the death penalty for the most aggravated crimes. Crimes are usually defined by statute, but the laws of the states are very different in the minuteness and carefulness of their distinctions ; of course the community with the highest standards has the most statutory crimes. Where no distinct statutes have been passed, offences in most states may be pun- ished under the common law, — that is, the nature of the offences and the penalty are to be ascertained from the practice of the courts in England and America. The municipal and police courts have to do almost solely with petty crimes, — drunkenness, fighting, destruction of prop- erty, and the like ; and they have a summary process with very '56 State Courts. [§75 speedy examination of witnesses, so that a trial often occu- pies only three or four minutes, and the penalty is at once fixed and the punishment begins. In most of such cases the guilt is obvious, or the prisoners are -too ignorant of the laws to protract the matter ; yet on questions of law appeal practically always lies from the municipal court to some higher court. The middle courts of the regular state series commonly take cognizance of the most serious crimes. Here, as cases may involve life and death, trials are sometimes long and searching, and may last two months or more. The highest courts seldom examine into the facts in criminal cases, but pass on questions of law which may be appealed to them. In the system of criminal jurisprudence are deeply imbedded the principles of indictment and trial by jury. Indictment is the process of preliminary examination, usually by a grand jury, of the evidence against a man charged with crime ; if the jury sees reason to send the case to trial, it " finds a true bill," and the prosecutor must bring the matter to trial. In justice courts and municipal courts the jury is usually dispensed with, although in most states it must be had if the prisoner demands it. The more serious crimes are always tried by a " petty " jury, the common rule being that there must be twelve jurors and a unanimous verdict ; but several of the far Western states allow a decision by ten, or even fewer, jurors out of the twelve. In most states a jury trial may be waived if the prisoner so desires. The jury system is at present the subject of much complaint : jury duty is tedious and habitually avoided by busy men ; the professional juryman is unsafe ; and in many kinds of cases, especially those having to do with liquor-selling and strikes, twelve men cannot be found who will unite in a verdict of guilty. In all important cases the state is represented by a prose- cuting officer, whose duty it is (i) to secure evidence to justify a warrant for the arrest of a suspected man ; (2) to present evidence to a grand jury which will induce it to bring § 75] Criminal Law. 157 in an indictment; (3) to produce witnesses and to marshal the evidence at the actual trial. Everywhere in America pris- oners are allowed to employ counsel, and if they have none, the court will make assignments in serious cases. The court designated a well-known lawyer to appear in behalf of the assassin of President McKinley in 1901. The ordinary punishment for aggravated crimes in the United States is imprisonment, for terms varying from one hour to a life sentence. All sentences for terms of years are subject to a deduction of about one fifth for good conduct while in prison ; and the average of long sentences is much brought down by the. frequent use of the pardoning power, so that prisoners under life sentence are said actually to average about ten years in prison. The former cruel and brutal punishments for crimes have officially disappeared entirely in the United States : tongue- piercing, ear-slitting, pillorying, branding, and the hke are no longer ordered by the courts, although in Delaware public whipping is still a penalty. There is, however, a lamentable practice, amounting almost to a system, of so-called " lynch law," which means that people (in the Southern states usually, though not invariably, negroes) shall be seized by a mob and, if suspected of aggravated crimes — including rape, murder, arson, and shooting with intent to kill — be put to death by shooting or hanging, or in many instances by burning at the stake or by other tortures. It need hardly be said that lynch law is neither law nor justice, since it is executed in a period of great excite- ment, without any proper process for ascertaining whether the person charged is guilty ; and the fierce and vindictive punish- ments not only tend to brutalize those who take part in them and the community which allows them, but do not seem to pre- vent the crimes. 158 State Courts. [§76 76. Civil Lavr and Jurisprudence. Much greater in number than the criminal proceedings are the civil suits of every kind. In general, the jurisdiction of the courts extends to all subjects regulated by legislative enact- ments ; but in many instances, where there is no positive statute, the court takes the principles of common law. In all the states but two or three there is a system called " equity," which is a special kind of legal process, originally intended to furnish a speedy remedy where the common law was round- about or inadequate. The difference between law and equity is not so much in legal principles as in the way in which they are enforced : courts of law enforce their judgment against the property of the defendant; courts of equity against his person, by commanding him to do or refrain from doing a certain thing. The penalty of his disobedience is punishment for contempt of court. Some states have special chancery (equity) courts ; in others, equity proceedings are held by the regular courts The prime principle with regard to civil jurisdiction is that the court must have a case before it. In a few states the legislative or executive officers have the right to ask the Supreme Court for an opinion upon a proposed measure ; but, without some such constitutional requirement, judges refuse to give decisions in cases which are not argued before them so that both sides may be represented. The courts attempt to follow previous decisions involving the same principles : thus the lower Kentucky courts will try to follow the decisions of the Supreme Court of Kentucky, and the Supreme Court of that state will usually follow its previous decisions. When no decisions can be found exactly in point, lawyers and courts refer to decisions of other states, or of the United States, or of England. Hence the skilled and suc- cessful lawyer is he who, by his knowledge of decisions already rendered, can form a probable surmise as to the result of a given case ; and he will dissuade clients from entering suits not likely to be sustained. § 76] Civil Law. 159 The subjects upon which suits may be brought are innumerable. Perhaps the most important branch of the law has to do with real property, — the holding of land, and the transfer of title by sale, inheritance, or will. Another source of litigation is the collection of debts, either to ascertain the amount justly due or to attach the debtor's property if he declines to pay. The great development of corporations of every kind, especially railroads, has led to an immense body of decisions as to what constitutes membership in a corporation, what rights corporations have to acquire and dispose of property, and especially how far cor- porations are acting within or beyond the charter which gives them existence. Another great branch of law concerns " torts," or injuries and damages. Perhaps the most important function of the courts is to decide on the powers and relations of officers of state and municipal governments. The methods of civil court business are much hke those in criminal law : jury trials are very common on questions of property, and especially on questions of personal damage ; both sides are usually represented by counsel, although any man has the right to appear in his own behalf in a suit. Testimony is introduced, and there is a vast accumulation of precedent and practice upon the question of what is and what is not proper evidence ; for example, hearsay is commonlj r»,ot legal evidence, — that is, A may tell what he saw, but not what B told him that B saw. Most evidence is given in open court, with opportunity for cross-examination ; but " depositions " — that is, sworn testi- mony taken down in writing — are admitted unde/' some cir- cumstances. Each side has the right to secure a " subpoena " — that is, a legal summons to appear and give testinaony — and witnesses may be compelled to appear and testify. Wives are not obliged, in most cases not allowed, to testify agarwst their husbands ; and lawyers, physicians, and ministers are usually exempt from testifying on matters intrusted to them in professional confidence. When the testimony is all in, the lawyer on each side argues the case ; and then, if it is a j^ry 1 60 State Courts. [§ 76 trial, the court sums up the evidence in a " charge," in which it informs the jury what the law is and summarizes the evidence. In some states the jury insists also on deciding for itself what the law is. When a suit is once decided, it is very common forthwith to move for a second trial before the same court, on the ground of informalities ; and in that case the whole process must be gone through a second time, the same witnesses summoned, often at great expense to the parties. If any considerable amount of property is involved, or if important principles come in, it is very common to carry the case up to the next higher court in one of two methods. One way is by appeal, under which the whole case is tried again, the evidence heard, and the law laid down by the upper court, with a jury if demanded. The much more common method is by writ of error ; that is, one of the parties sets forth that the judge in the lower court has made mistakes in his statement of the law, and the upper court is therefore asked, not to go through the whole case again, but on the basis of the errors to notify the judge of the lower court that he must reverse his decision. In such an appeal, the question comes first on the particular points claimed to be erroneous ; but the upper court may, and often does, go into the whole case. Important suits are likely to be appealed the second time from the middle courts to the state Supreme Court, usually on writ of error; and the judgment of this court is final, unless cause can be found for transferring the suit to the federal courts, where again it may go through two stages. It is therefore perfectly possible that a man whose property is wrongfully claimed by another will be compelled to fight his case through six different suits before the question can be finally adjusted. In such long protracted litigation the richer party is most likely to keep up the contest. The courts are not entirely confined to the decision of con- tested cases ; they also issue writs, which are intended to be §77] Control of Executive. i6i simply preliminary to a suit. Such are the writs of " habeas corpus," which have been described above ; the decision takes place only after the person responsible for the confinement has had an opportunity to explain. The writ of " error " just de- scribed is not technically a decision, but a direction to a lower court to make a decision. The writ of " quo warranto " is a means of compelling a corporation to show whether it is acting within its charter. The writ of " certiorari " directs a lower court to send up to a superior court the record of a proceeding. The writ of " mandamus " is directed to some corporation or public official, instructing him to perform an omitted duty. The writ of " injunction," now perhaps the most frequently used, is a decree rendered by a court of equity commanding the defendant to do, or refrain from doing, a certain^ thing, — for instance, not to put up a building which is claimed to be on another's land, till the title can be settled. In the former case it is called a mandatory injunction. The injunction may be temporary or permanent. A temporary injunction is issued in cases where the acts of the defendant are causing irreparable damage. The usual practice is for the court to call upon the defendant to show cause why the temporary injunction should not issue. If he fails to do so the court will issue the tempo- rary injunction. In the final hearing as to whether the injunc- tion shall be made permanent, full opportunity is given to both sides to be heard. 77. Judicial Control of Executive Officials. In most continental governments — as, for example, France — the principle called " separation of powers " means that legis- lative and executive departments are separated from each other : what the French Chamber and Senate unite in declaring a vitatute, must be obeyed by everybody ; if the act of an execu- tive official is contested, a court composed practically of his official superiors declares whether he is in the right. The American idea of " separation of powers " is absolutely II i62 State Courts. [§77 different. Our courts may not only decide upon their own jurisdiction and rights, but may also act as administrative courts, and even decide upon the vaUdity of statutes : the final authority upon the legality of many legislative and executive acts is not in the highest executive or legislative bodies, but in the courts. The state governor and other officers have not sufficient authority to appoint and remove officials, and find it hard to compel minor officials to do their duties. This necessary service is performed, although imperfectly, by the state courts ; and to this end they freely use their power of issuing writs. For in- stance, quo warranto is invoked to compel an official to vacate an office to a duly-designated successor ; or mandamus to force him to pay legal salaries ; mandamus is rarely issued against the governor, but constantly issued against local offi- cials, mayors, city treasurers, auditors, comptrollers, and the like ; and there has been a recent instance in New York City where mandamus was issued to compel members of the city council to meet and vote bonds for a legal debt. The courts also frequently issue injunctions against officials, to prevent their issuing documents and thus creating vested rights before the questions at issue can be reached in regular suit which will test the questions of law involved. The result of the whole system is that the courts, and not the superior state executive officials, find means to compel a pub- lic officer to do his duty. The penalty of a neglect is contempt of court, — that is, imprisonment at the discretion of the court without further trial, — and the fear of this penalty is almost always sufficient ; or criminal suit may be brought for malfeasance in office. Another frequent method of judicial control of the executive is through ordinary suits brought by individuals. In France, if a suit of this kind arises between an individual and a function- ary, it is tried by a special administrative court, presumably in sympathy with the official. In the United States such a case is § 7^] Declaring Statutes Void. 163 habitually tried as a question of private law, without any refer- ence to the public station of one of the parties. For instance, a tax collector levies an illegal tax on a building ; the owner refuses to pay, whereupon the collector seizes the building and prepares to sell it to satisfy the tax ; suit is then brought by one side or the other for the possession of the property ; and in de- ciding who is legally in possession, the courts must incident- ally hold that the tax either is or is not valid. Such cases occur by thousands every year, and enable the courts to define very carefully the actual powers and responsibilities of public office. 78. Declaring Statutes Void. The English theory of government, soon transferred to the colonies, was that a law once made controls everybody, includ- ing the crown and the courts : the attempt of James II to set up a dispensing power, and to relieve certain persons from acts of Parliament, brought about the Revolution of 1688. In a few recorded cases, English courts declined to apply an act of Par- liament because it was contrary to natural justice ; but English courts for at least two centuries have accepted the latest act of Parliament as superseding all previous conflicting acts. In the colonies, statutes were in some cases set aside by the colonial courts because not in accordance with justice ; but it was only when the system of written constitutions was introduced that the necessity for decisions on the validity of statutes became evident. Who is to decide whether the law does or does not contravene the constitution? If the legislature has this power it will of course hold its own law good, and the will of the legislature will override the restrictions of the constitution. The governor and the other executive authorities must decide for themselves whenever the question arises ; but such decisions are likely to affect only those laws involving the exercise of executive power. The state courts are obliged to set one kind of law against another, because one sort may be invoked by one party, and 164 State Courts. [§78 the other by the other party. The issue of the power of the courts was first distinctly raised in 1780, in the New Jersey case of Holmes v. Walton, when it was held that an act of the legis- lature was contrary to the constitution of the state, and hence was no law ; the legislature speedily changed the law to agree with this decision. When the federal constitution of 1787 was framed, providing for direct relations with individuals and fur- nished with a strong supreme court, a new feature was intro- duced into this question, inasmuch as the federal constitution, and acts and treaties made in pursuance thereof, were to be the supreme law of the state and binding upon the state courts. The intention of this clause was to authorize and compel a state judge to decide whether a state act was in accordance with the federal constitution ; and the history of the convention shows clearly that it was intended that the federal courts should have the power to nullify state statutes that were not in accord- ance with the federal constitution. I'he convention did not commit itself clearly on the question whether national courts could also nullify national statutes ; but in 1803, in the decision of Marbury v. Madison, it was held that part of an act of Congress was unconstitutional, and there- fore not binding; and in the case of Fletcher v. Feck, in 1810, a state statute was for the first time distinctly held void by the United States Supreme Court. This principle was slowly adopted in the states with reference to their own laws. In most state constitutions it does not appear as a distinct right conferred by the constitution; it simply is tacitly held to be necessary, because in deciding specific cases the courts must take cognizance of the laws that apply, and if two conflicting laws are invoked it must decide vvhich is valid. If one law appears in a constitution amendable only by a special process, then that law must prevail against any subsequent contrary statute. This power to review legislation is one of the things which give state courts their highest dignity and importance, and § 78] Declaring Statutes Void. 165 make state judges the guardians of personal as well as of prop- erty rights. Many courts exercise this great power with hesi- tancy ; if possible, they decide the case without raising the issue, ot they attempt to put such a construction on the statute that it will be agreeable to the constitution. Nevertheless, every year scores of state laws are disallowed and set aside. Consciously or unconsciously, the power is used to prevent uncommon or new kinds of law : for instance, the elaborate labor legislation throughout the country has been much toned down by court decisions disallowing or modifying provisions of statutes. It is impossible entirely to separate personal, or even selfish, methods from the legal duty of standing by the great and fundamental law ; the practice of reviewing statutes, how- ever, leads to a very strong respect for the constitution. If the community is sufficiently interested, an unrighteous decision can be set aside by later amendment to the constitution, which the courts must then acknowledge and apply. We do not always realize that courts have as much right to declare acts of executive officials void as they have to pass on statutes : the processes of review, mandamus, injunction, and the like, which have been discussed already, are often simply a declaration of the court that what the executive has tried to do is not in accordance with the constitution. In form the decision of a court on constitutional or other questions binds only the parties to the immediately pending suit, but it is notice of the law to all others : if a mayor makes a contract for a bridge in a way forbidden by the constitution, and the courts hold that contract void, the contractor cannot get his money ; if another mayor attempts to make a second contract of the same kind, the contractor from the beginning has no legal reason to expect to get his money, and hence will probably hold off. In this way, decisions which directly involve small amounts or slight rights become landmarks of the constitutional power of the state governments. If a poor woman, who is put off a street car because the conductor will not recognize her transfer, brings I 66 State Courts. [§ 78 suit and gets a judgment against the company, it may lead to a reform of the whole transfer system for the benefit of thou- sands of people. On the whole, the system of declaring statutes and executive acts void works well ; but it throws immense responsibility upon the judges, who after all are human beings. The fact that they have such vast, and in many cases such final, power is simply another argument for securing judges by appointment, for giving them long terms and good salaries, so that men of the highest integrity may be attracted to and may remain upon the bench. Part IV. Local Government in Action. CHAPTER X. RURAL UNITS OF GOVERNMENT. 79. References. Bibliography: G. E. Howard, Local Constitutional Hist. (1889), I, 475-498; Channing, Hart, and Turner, Guide (1912), §203; Cyclop, of Am. Govt. (1914), I, 497; II, 365; III, 543; A. B. Hart, Manual (1908), §§ 107, 108, 209, 290; J. A. Fairlie, Local Government (1906), 273-279. General Principles of Local Government: J. A. Fairlie, Local Govt. (1906), chs. i-iii; H. C. Lodge, Frontier Town (1906), Nos. i, 9; E. McQuillin, Municipal Corporations (1911-1913), I, §§ 62-71; A. B. Hart, National Ideals (1907), ch. vii; J. F. Dillon, Municipal Corpo- rations (sth ed., 191 1); F. J. Goodnow, Administrative Law (1905), bk. iii, ch. ii; J. K. Hosmer, Anglo-Saxon Freedom (1890), ch. xvii; B. A. Hinsdale, Am. Govt. (4th ed., 1917), ch. Iv; T. M. Cooley, Con- stitutional Law (1898), ch. xvii. Town and County Governments: Monographs on local govern- ment, in Johns Hopkins University, Studies, I, Nos. 3, 5, 12 (1883) (111., Pa., Mich., Md., S. C), III, Nos. 2-3, 5-7 (1885) (Va., Md.), IV, Nos. I, 2, 4 (1886) (N. Y., R. I., Pa.), VIII, No. 3 (1890) (Wis.), XI, No. 11-12 (1893) (South and Southwest); E. Channing, Town and County Government (Ibid., II, No. 10, 1884); F. A. Cleveland, Organized Democracy (1913), chs. xiii, xxv; Cyclop, of Am. Govt. (1914), Arts, on County Government; Local Government and the States; Local Self- government; Town-County System; Town Meetings; Towns and Townships; F. J. Goodnow, Administrative Law (1905);- bk. iii, ch. iii; J. A. Fairlie, Local Govt. (1906), chs. iv-xvi; J. Bryce, American Commonwealth (ed. 1910), I, chs. xlviii, xlix; A. De Tocqueville, Democ- 167 1 68 Rural Governments. [§ 80 racy in America (1835-1840), I, ch. v. — Sources: C. A. Beard, Readings in Am. Govt. 1909), ch. xxix; annual reports of county commissioners, supervisors, selectmen, towns, etc.; National Municipal Review (quar- terly since 191 2). 80. Creation and Functions of Rural Governments. Within each state the people determine how they will exercise the functions not reserved by the federal constitution, and every- where they choose to commit large responsibility to the local units. Sometimes they act through the state constitutions ; but details are to a large degree determined by the legislatures, and therefore the powers and functions of the local governments are constantly subject to change. To prevent too rapid alteration, some states have a constitu- tional provision that no special laws shall be passed for counties or towns or cities ; but these provisions are easily avoided by passing a law for classes of communities, — say, counties of less than 50,000 inhabitants and more than 49,000, or cities of over 30,000 people, there being only one such county or city. In Ohio, in 1902, the whole machinery of city gov- ernments was upset by a decision that such classification was unconstitutional. The oldest and most frequent type of local government is the ordinary rural government, of which there are three vari- ties : (i) small special divisions, as school and fire districts, boroughs, and villages ; (2) towns or townships ; (3) counties. The boundaries of such jurisdictions are in many states subject to alteration by the legislature, without a vote of the inhabi- tants. The type of government is partly set by constitution or statute, and is partly so far traditional that sweeping changes would be resisted. The most noticeable feature of rural governments is that there is no exact separation of powers, such as exists in state and national governments : town-meetings are little legislatures, yet exercise many executive functions ; county executive boards make by-laws and lay taxes. The functions which ordinarily § 8i] Minor Units. 169 fall to such governments are schools, roads, bridges, the poor, fire protection, water supply, and in some communities electric lighting, pubhc libraries, and the hke ; and the assessment and collection of taxes for such local purposes. They have power also to make local ordinances for public order, — as, for in- stance, against riding bicycles on the sidewalk. It will be seen later that such functions are much more important in cities, which have to provide for a complicated and numerous population. 81. School Districts, Villages, and Boroughs. >The smallest unit of local government is the school district, which in many states has authority to raise money, to lay taxes for the carrying-on of district schools, and even to issue bonds for the building of schoolhouses. A pubhc meeting of the voters is held ; and in New England there is a clerk, a treas- urer, a moderator, and a board of district-school directors. While the immediate control of the school district gives ex- perience and confidence to the people, modern education requires grouping into larger areas, and demands trained teachers such as can hardly be secured by the district system. Another very common unit is the village, which is an incor- porated body like a city. In New York, the village government is a body of trustees with a president, and there is a village treasurer, a clerk, a collector, and a road commissioner. A similar unit is the borough, found in several states ; it has existed in New York and Pennsylvania ever since colonial times, and therefore ranks with the town and the county as one of the forms of traditional government. Usually the borough has a population of two or three thousand ; but bor- ough government is rather cumbrous : in Pennsylvania, for instance, it includes a school board, a board of health, and a poor board, besides burgess or mayor, treasurer, secretary, chief of police, road commissioner, tax collector, and high constable. The borough of Jacksonville, Pennsylvania, has had to provide these officers out of 82 inhabitants. 1 JO Rural Governments. [§ 82 Both villages and boroughs are usually withdrawn from the town or township in which their area is situated, and have direct relations with the county and the state. Probably the best form of borough government is that of a single elective council. Whenever a village or a borough arrives at a suffi- cient population, it is usually allowed to become a city. In Maine and other states are various irregular local units not having a definite organization, called plantations, districts, and gores. 82. The Town System. True rural government is best expressed by one of the three most prevalent systems, — the town, the county, or a combina- tion of town and county. Of these the town, or township, is perhaps the most interesting. The New England town has a great tradition behind it, inasmuch as in Plymouth, Massachusetts, Connecticut, New Haven, Rhode Island, and New Hampshire, towns were or- ganized even before the colonial governments, although as soon as the latter were founded they at once asserted their right to prescribe duties and grant privileges to the towns. For a long time supposed to be a creation of the colonists, it is now established that the New England town was a reorgani- zation of that type of English parish which had a general parish-meeting of rate-payers. Many of the present New England towns are simply old colonial towns continued ; many more,' however, have been subdivided and set off at various times by the state legislatures. In population they vary from Cambridge, New Hampshire, with 17 people, to Warwick, Rhode Island, with 21,000 people Some of them are remote little agricultural communities ; others are bustling and prosper- ous manufacturing places. Town government in New England includes three elements, — town-meeting, board of selectmen (pronounced selectman), and n^inor town officers. The town-meeting comes at least once a year, and usually, by adjournment or special meetings, much oftener. It must § 82] Town System. 171 be called by a warrant printed or posted beforehand, specify- ing the business ; and no matters can legally be introduced which do not appear on that schedule. For the accommodation of the town-meeting there is always a town hall, sometimes built at the cross- roads away from a village. To direct the meeting, a moderator is chosen; in many towns the same man serves year after year in that important office. The next officer is the clerk, commonly reelected from year to year. The thing most characteristic of a town-meeting is the lively and educating debate; for attendants on town-meeting from year to year become skilled in parliamentary law, and effective in sharp, quick argument on their feet. Children and others than voters are allowed to be present as spectators. In every such assembly, four or five men ordinarily do half the talking ; but anybody has a right to make suggestions or propose amendments, and occasionally even a non-voter is allowed to make a statement ; and the debate is often very effective. The development of manufacturing in New England has pulled town government awry. A manufacturing section may spring up on a water-power in one corner of the town ; and the interests of the factory owners and operatives ^e different from those of the farmers. Hence arise constant squabbles in town- meetings, until the new community gets itself set off as a sepa- rate town. The farmers naturally resent this attempt to remove a taxable property out of their jurisdiction, and also the efforts of summer residents to secure a town of their own ; but, under the universal American principle that a man can have but one vote, summer residents usually have no voice in the town- meeting of their preferred abode, and accept the taxes imposed by the vote of their neighbors. In very early times it was found that business had to be done in the intervals between town-meetings ; and hence grew up the system of "townsmen," now usually called selectmen or trustees, — an executive board of three to nine members, chosen 172 Rural Governments. [§82 for a year in town-meeting ; it holds frequent sessions, and has authority to make contracts and payments under votes of the town-meeting. For school purposes, a separate committee or board is provided. Most town-meetings choose a host of minor officers, some of them holding queer titles. The town of Middlefield, with 82 voters, in 1895 elected one clerk, three selectmen, one auditor, one treasurer, one collector, two constables, one road commis- sioner, three school committeemen, one superintendent of schools, three trustees of the public library, and one town librarian, — a total of 18 town officers, leaving 64 unlucky voters without a single office. The town and township also exist in New York and Pennsyl- vania, but there the main functions of government are divided with the county. In most of the Western states there is also some form of town or township government, but the unit of those states is almost invariably a " public land township," — that is, an area of six miles square, not having the historical coherence of the old New England towns. In the South, towns were made units in some of the reconstructed states, but all of them have again been abandoned ; and the town-meeting has never takeij, root, perhaps because the population is so scattered that it is difficult for voters to get together. One of the notable things about town government is that the state legislatures constantly throw new duties upon town officers : they have to assess and collect state taxes ; they have to carry out state laws for the prevention of contagious diseases ; they must keep records of births, deaths, and mar- riages ; they must apply election laws ; they have a hundred other important functions. The state follows them up with threats and fines for neglect of duty ; in some states the state executive may vacate town offices for neglect ; and everywhere the state courts grant mandamus and other writs to compel town officers to do their duty. The principal functions of the town are performed in town- §82] Town Meeting. 173 meeting, and may conveniently be classified as follows : — ■ (i) The election of town officers for the next year, a vote commonly taken by ballot ; formerly representatives to the state legislature were also chosen in town-meeting, but now it is cus- tomary that they should be voted for at the regular state election by ballot. (2) The control of town officers, and the discussion of their oral or printed reports, — often the subject of animated criticism. (3) The general legislative function is the making of by-laws, — that is, local ordinances, such as forbidding the destruction of town property or the running of animals at large. (4) An especially important group of duties is the financial, — as the making of appropriations for town purposes, especially schools, and the laying of taxes for those purposes; this in- cludes also the opening and maintenance of highways, a duty poorly performed. (5) All town-meetings exercise a variety of social functions, including many petty matters : for instance, ■ the Worcester town-meeting in 1779 voted not to read the Psalms line by line before singing them ; and one town-meeting voted to indemnify an unhappy person who had unwittingly received a counterfeit bill. The question of the sale of liquor is one of those most frequently brought up at town-meeting, and the prosecution of liquor-sellers is often authorized. There was a time when the town-meetings had also large political functions : they instructed their representatives upon matters of great consequence, and they frequently passed votes on pending political questions, as, for example, the vote of the Boston town-meeting in 1729 : — "That you Continue to Pay a due Regard to His Excellency Our Governor, and that you Endeavor that He may have an Honorable Support, But we desire at the Same time That you use your utmost Endeavor That the Honorable House of Representatives may not be by any means Prevailed upon or brought into the Fixing a Certain Sallary for any Certain time. And if your Pay Should be diverted from you Depend on all the Justice Imaginable from this town whom you Represent." 174 Rural Governments. [§ 83 The variety of the town functions may be illustrated by an abstract of the warrant of the town of Brunswick, Maine, in 1899. It included election of officers and reports of former officers ; appropriations of money for schools, highways, fire department, and contingent expenses (lights, abatement of taxes, Memorial Day, public library, street sprinkling) ; dis- position of real estate ; by-laws, public buildings, sale of liquor, numbering of dwellings, bicycle paths, electric lights, purchase of coal, the town farm, the town cemetery, a larger drinking- tub to the fountain, and the town hearse. 83. The County System. The rival system of rural government is that of the county. At the time of colonization, county assemblies had entirely ceased in England, and the shire government was the Court of Quarter Sessions, a board of magistrates appointed by the crown for each county. Such a magistrate was Justice Shallow in Merry Wives of Windsor : "Justice of peace and 'Coram.' — Ay . . . and Custalorum." In the New World a similar organization was founded in colonial times, including an ap- pointive county board. Since the Revolution, elective boards have been usual except in North Carolina, where the legislature appoints the county officers. The number of counties varies from 3 in Delaware, to 243 in Texas ; the most populous county is New York, with 2,050,- 000 inhabitants. The average area of a county, except in the thinly-populated Northwestern states, is from 500 to 800 square miles; and the average population outside of the cities is some- where from 10,000 to 20,000. Of course a popular assembly is impossible for such large districts. In place of it, is set up the board of elective commissioners, the county treasurer, school superintendent, sheriff, registrar of deeds, and many other officers ; in the so-called " compromise " states there is also a representative county board. The two distinct types of county government are the New SAN BERNARDINO COUNTY BUILDINGS §83] County System. ly^ England and the Southern. In New England the county is simply a judicial and military subdivision : the court-houses, jails, registries of deeds, and in some cases the poor-houses are county buildings ; but the counties have very little control over roads, and almost none over the conduct of individuals. Upon the whole, the county gradually gains ground in New England as an administrative unit, although it is hard to keep it from extravagance. In the South the county has been since colonial times almost the sole unit of local government. In Louisiana the so-called " parishes " are really counties. The principal ofificers are a board of county commissioners, and financial officers — also superintendents of roads and of education; there are various judicial officers, including a public prosecuting attorney, who in Virginia is popularly called "Commonwealth." In all county systems the most important and best paid office is that of sheriff. In large city-counties like Cincinnati, the sheriflf enjoys fees which may amount to many thousands a year : the sheriff of Erie County (Buffalo), New York, rose to be governor of his state and president of the United States. Practically all the functions of Southern local governments are vested in some of these county officers, — the schools, the poor, roads, bridges, assessment and collection of taxes, and local legislation for the health and morals of the people. The people seem to feel no need of smaller local governments, except where there are enough to make a village or a borough ; and even in those most of the local government is carried on by county officers. The former parishes in Virginia and elsewhere have ceased to be governmental units. One advantage of the county system is that it tends to bring about one general kind of local government, for it is un- common for a state to have different types of government in different counties ; and it is therefore easy to fix responsibility and to apply the control of the state to the performance of local duties. Throughout the South and West, there is an elab- 1 76 Rural Governments. [§ 84 orate system by which counties are allowed to choose whether they will put into effect certain laws. Thus, counties may or may not tax themselves for railroads or other purposes, accord- ing as the legislature may direct ; in Kentucky some counties pass on the sale of liquor within their limits, many of them pro- hibiting it even in the regions of " moonshine " whiskey. The great advantage of the town over the county is that it has the machinery for an intelligent man-to-man discussion of public questions, and for their settlement by the immediate vote of an assembly. Nevertheless, in the Southern states there is always plenty of discussion of public issues wherever people congregate ; and public opinion is reflected through the county commissioners. 84. Mixed County-Precinct and To'wnship-County Systems. Besides the town and the county government, there are two widely-diffused mixed systems, conveniently called by Professor Howard the "county-precinct " and '' township-county." The first of these is but little removed from the county plan, the precincts being only electoral units or districts for the election of justices of the peace and constables. It generally precedes the township-county system, and is often a stage in the develop- ment of the latter. The so-called " townships " in California are of this type. Although the second system has been developed chiefly in the Mississippi Valley, and is the result of sectional compro- mise, the substance of the organization existed in colonial Pennsylvania, and its early introduction in the Northwest Terri- tory was largely due to the influence of that state. County government began in the Northwest Territory in 1788, and in 1790 provision was made for the civil life of the "congres- sional" townships, which in 1802 were given a more popular organization. The system shows several types. In the simplest, such as § 84] Mixed Systems. 1 77 was adopted in the Northwest Territory, and now prevails in Pennsylvania, Ohio, Kansas, and elsewhere, there is no town- meeting, and the towns are not represented on the board of county commissioners ; they have, however, usually some power of self-taxation, and a body of elected officers, including one or more supervisors, nearly coinciding with the New England se- lectmen, a clerk, treasurer, assessor, and constables. Wherever New England people have settled in large numbers, as in Michigan and Northern IHinois, town-meetings exist and go beyond the election of officers to the management of local affairs. The relation of these townships to the county are of two kinds. In Minnesota they have no representation in the county board of commissioners, the commissioners being elected at large, as in the first type and county system, though some- times they are designated from particular districts ; but in Michigan, Illinois, Wisconsin, and Nebraska — the Western states with the best local organization — the New York plan of a county board composed of the supervisors of the component townships is followed, a well-ordered executive legislature in which all parts of the county have membership. In all three of these types the towns are marked off by the county officials, and the town governments are subordinate to the county organization. The degree of dependence varies in the different types and in the different states, being greatest in the first form ; but in all of them the county is the judicial unit, and has general supervision over the administration of the townships ; it levies taxes ; the county school-superintendent is one of the most important local officers. The county or county-precinct system, being simpler, more symmetrical, more easily managed, and therefore better adapted to thinly settled districts, was generally established first in the new settlements, especially wherever emigrants from the South- ern states have been predominant ; but a demand for town government was made by those who had emigrated from the states where it prevailed^ In Michigan town organization pre- 178 Rural Governments. [§85 ceded county organization, but in other states, where the set- tlers were not so homogeneous, the struggle has resulted in a compromise by which the counties are allowed to choose be- tween the county system and the mixed system. In 1847 such a choice was first offered in Illinois, and now out of 102 coun- ties about 90 have changed to the township-county system. The county option also exists in Missouri, Nebraska, and North Dakota. In Minnesota the option lies with the townships. 85. Improvement of Rural Government. The foregoing sketch omits details which would show how varied are the possible combinations of rural government, — from Maine, in which the towns have nearly all the power, to Texas, in which there are practically no towns at all. On the whole, the town-meeting is losing its hold upon New England, except in exclusively agricultural towns ; for it becomes clumsy as soon as the number of voters gets to be more than three or four hundred. The most remarkable New England towns are Brookline, with a population of 20,000 and a valuation of ^91,000,000, which still retains its town-meeting undisturbed; and New Haven, which has an ancient town and town-meeting right in the middle of the city. The most successful rural government is perhaps the town- ship-county system of New York and various Northwestern states, because it emphasizes the small subdivisions in which people can know and meet each other, and also provides for a representative county assembly. The main objection is that there are two sets of officers to do one job, and that the large board of county commissioners is unwieldy. The county-pre- cinct system is simpler, because most of the governing is done by a small board of county officers ; but the commissioners are not so easily watched and checked. The main improvement necessary in rural government is that the authorities of both towns and counties shall become more accustomed to appoint experts for special services. For in- MIDDLESEX COUNTY CAMBRIDGE, MASS. COUNTY BUILDINGS §85] Improvement. 179 stance, road-making is an art for vvliich a man ought to be spe- cially prepared ; and a road master or road commissioner ought to be a permanent officer, having the details of the service in his hands. Since roads are of consequence beyond the borders of the town, they ought everywhere to be a county affair. A cor- responding reform will be the provision of a proper state agency for supervising the local governments and keeping them up to their duties to the states. The accentuation of town govern- ment is important because it makes people take an interest in their own public officers. On the other hand, the townships are units too small for some of their usual duties, particularly the management of schools : the good county systems have county superintendents, who visit the schools and keep them up to the mark ; but there is only one state in the Union in which the towns are obliged to provide expert superintendents. Upon the whole, rural government in the United States goes ■well ; through the opportunity of choosing out of several es- tablished systems, people get what they think is best adapted to them. The county system breaks down wherever it is appHed in counties having large cities ; but the rural counties upon the whole have as good a government as the people desire. In some states, notably Massachusetts, county commissioners are habitually reelected, and often serve for many years ; in the Western states it is more common to change them frequently. In some states, the county officers have gone so far as to form an association to push their interests ; and in some cases the frequently-reelected commissioners have lost a sense of respon- sibility to the people who chose them. CHAPTER XI. CITY GOVERNMENTS. 86. References. Bibliography: W. B. Munro, Bihl. of Municipal Govt. (1915); C. D. Wright, Practical Sociology (1909), §§ 9, 66, 72; C. A. Beard, Am. City Govt. (1912), App. iii; W. B. Munro, Govt, of Am. Cities (1916), ch. bibliographies; Cyclop, of Am. Govt. (1914), I, 249, 276, 350, 387; II, 329, 415, 477, 483, 486, 544; A. B. Hart, Manual (1908), §§ 107, 108, 211, 224; Charming, Hart, and Turner, Guide, §§ 203, 272. See also the bibliographies in National Municipal Review and the treatises on municipal government. Principles of City Government: B. A. Hinsdale, Am. Govt. (4th ed., 191 7), 405-407; J. Bryce, Am. Commonwealth (ed. 1910), I, chs. 1-lii; II, chs. Ixxxviii, Ixxxix; A. R. Conkling, City Government (4th ed., 1899); T. M. Cooley, Constitutional Law (3d ed., 1898), ch. xvii; E. McQuillin, Mnnicipal'Corporations (igii-igi^); T. M. Cooley, Constitutional Limitations (7th ed., 1903), ch. viii; J. F. Dillon, Muni- cipal Corporations (sth ed., 191 1); D. B. Eaton, Govt, of Municipalities (1899); J. A. Fairlie, Municipal Administration (1901); F. J. Goodnow, Administrative Law (1905), bk. iv, ch. iv; C. A. Beard, Am. City Govt. (1912), chs. ii-iv; Cyclop, of Am. Govt. (1914), Arts, on Charters, Muni- cipal; Chicago; City and the State; Municipal Govt., Functions of; Municipal Govt, in U. S., Hist. Development of; Municipal Govt, in the U. S., Organization of; New York City; Philadelphia; R. W. Cooley, Law of Municipal Corporations (1914); C. Zueblin, Am. Munici- pal Progress (1916); W. B. Munro, Govt, of Am. Cities (1916), chs. i-vii; H. L. McBain, Municipal Home Rule (1916); F. J. Goodnow, City Govt. (1904), chs. ii-vi; F. C. Howe, City the Hope of Democracy (1905), chs. X, xi; H. C. Black, Constitutional Law (1897), ch. xvii. — Sources: Civil Service Record {\%%i-\?,g2); Good Govt. (i8g2-); Muni- cipal Affairs (1897-1902); A. R. Hatton, Digest of City Charters (1906); C. A. Beard, Readings in Am. Govt. (1909), chs. xxvii, xxviii. City Executwe: F. J. Goodnow, City Govt. (1904), ch. viii; F. A. Cleveland, Organized Democracy (1913), §§ 320, 321, 323, 344; W. B. Munro, Govt, of Am. Cities (1916), chs. ix-xi; Cyclop of Am. Govt. (1914), Arts, on Commission System of City Govt.; Mayor and Executive Power in Am. Cities; C. W. Eliot, Am. Contributions to Civilization, (1897), No. 7; J. A. Fairlie, Municipal Administration (1901), chs. xviii, 180 § 87] Origin. 1 8 1 xix. — Sources: Reports and inaugural addresses of mayors; National Municipal Review, passim. City Councils: D. F. Wilcox, Study of City Govt. (1887), 143-179; J. A. Fairlie, Municipal Administration (1901), ch. xvii; D. B. Eaton, Govt, of Municipalities (1899), chs. x, xi; J. F. Dillon, Municipal Cor- porations (5th ed., 191 1), II, chs. xiii-xvi; A. R. Conkling, City Govt. (4th ed., 1899), ch. iii; W. B. Munro, Govt, of Am. Cities (1916), ch. viii, Cyclop, of Am. Govt. (1914), Art. on Legislation and Legislative Prob- lems in Cities; E. McQuillin, Municipal Corporations (1911-1913), II, chs. xiii-xxi; F. J. Goodnow, City Govt. (1904), ch. vii. See also general references above. 87. History of American City Governments. Cities and their problems are as old as civilized mankind. Ever since the dawn of history men have gathered together in walled enclosures ; indeed, our word " town " means a settle- ment surrounded by a palisade. At the beginning of our col- onization there were many English cities founded on royal charter, most of which were represented in Parliament ; and it was supposed that cities would speedily grow up in the colo- nies. Indeed, in the year 1641 a city charter, the first in English America, was issued to Agamenticus, Maine ; and in Virginia two of the rural counties to this day bear the names Elizabeth City and Charles City ; but even the largest places in New England all retained town government until after 1820. There were about twenty chartered boroughs and cities in colo- nial times, none of much importance except New York and Philadelphia. The development of city government in America practi- cally began about 1820. In the statistical publications of the United States government, a city is defined as an aggregation of 8,000 persons hving in one territorial unit and under one local government. When the federal constitution went into effect in 1 789, there were only six such cities. In the eleven decades since 1790 the total population has increased from 4,000,000 to 76,000,000, and the city population from 132,000 to 25,000,000. There are now more than 10,000 incorporated towns and cities, of which 546 have each more than 8,000 1 82 City Governments. [§87 inhabitants. The present New York City had in 1790 less than 50,000 people; it has increased seventy times, to about 3,500,000. In 1810 there was not a single place of 100,000 inhabitants ; now there are 38 such cities. The total city population in 1850 was under 3,000,000 ; in 1900 it was nearly 25,000,000 ; in 1790 about one thirty-third of the people lived in cities, now nearly one third. We hardly realize how swift and how unique has been the increase of American cities. Nearly every European city of note was a large place four centuries ago ; in the United States, of the fifteen largest cities, only seven had any population before the Revolution, and the ten great cities of Chicago, St. Louis, Cleveland, Buffalo, San Francisco, Cincinnati, Pitts- burg, Detroit, Milwaukee, and Washington, taken together, had as late as 1840 only about 150,000 people. The cities are-not only new on their ground, but they contain people most of whom come from outside the state, and many from outside the United States. At this moment, of the adults in the city of New York, 53 per cent are foreign-born. The older places all suffered from the attempt to keep on with forms of government long outgrown. Boston continued a town, until in 1822 it was absolutely necessary to give it a city charter. New York found repeated legislative enactments necessary ; its charter has been fundamentally revised no less than six times, and hundreds of single statutes have affected its government. The ancient and mediaeval idea of a city was that it ought to be a self-governed state ; but that conception has nowhere been realized, or indeed attempted, in America. Perhaps Rhode Island, with its commanding city of Providence, is the nearest approach. Most of our cities are imbedded in states having large rural populations ; and the legislatures have drawn up city charters, and are constantly tinkering with the city governments. After cities began, to spring up, it was many ye*rs before §88] History. 183 Americans faced the new problem. During the half century from 1789 to 1840, their attention went to the states and their constitutions ; then pubhc interest went into the great struggle over slavery, culminating in the Civil War ; and it was not until about 1875 that the Americans finally woke up to the inefficiency of their city governments. In the last twenty-five years most of the cities have received new charters, and there is at present a greater interest than ever before in improving city govern- ment. People have also become more aroused in municipal elections : the choice of mayor of New York City comes second in popular interest only to the election of president of the United States. 88. City Charters and City Functions. The outward semblance of American city government is very similar to that of the state governments. It is founded on a written charter corresponding to the state constitution ; the city mayor resembles the state governor ; many cities have two legislative bodies, like the state legislature ; and there is a system of executive boards very much like those created for state purposes. This resemblance is no accident : city govern- ment is purposely restricted and balanced and assimilated to state government. In colonial times among the twenty or more borough or city charters, the most important were the Dongan New York charter (1686), and Penn's Philadelphia charters (169 1, 1701). In Philadelphia, Annapolis, and Norfolk the city government filled its own vacancies, and thus got out of relation with public sentiment. Soon after the Revolution, the state governments began to grant municipal charters, — Charleston in 1783, New Haven and other New England places in 1784, Philadelphia in 1789 (third charter), Baltimore in 1797. Probably, first and last, 1,000 city charters have been framed. Most of them have been drawn up especially for the city concerned, sometimes by the 1 84 City Governments. [§ 88 preexisting city government, more often by a committee of the legislature. Public-spirited citizens sometimes draw up a charter, and by agitation attempt to secure its passage : the Municipal League, a national organization of those interested in the improvement of city government, has recently drafted a model charter, which has been substantially adopted in some places. City charters are frequently elaborate codes. For instance, a charter drawn up for the city of Minneapolis in 1898, by a special commission, contains 28 elaborate chapters and is 72 pages long. The city charter of Greater New York, 750 pages long, was drawn up by a commission appointed in June, i8g6, which held public hearings and employed lawyers to help com- plete the draft; the commission reported in February, 1897, and soon after made public the text of the draft ; there was little opportunity for public opinion to affect the draft, and with modifications it was enacted by the legislature as a general statute. Another and better system that prevails in some of the West- ern states is to enact a general form of charter, applicable to a town or a village of a certain size which wants to become a city ; it goes through the necessary formalities, and begins its munici- pal life under this general charter act. This method avoids the pulling and tugging of local interests to get special clauses into a city charter ; and it also obviates the hurry and imper- fection of charters hastily drawn and enacted, perhaps with contradictory provisions. Charters are often, though not invariably, submitted to the people of a city for ratification. Besides a list of city officers and a careful enumeration of their duties, a charter or general organizing act invariably contains a statement of the local powers which may be exercised by the city. For instance, the Minneapolis draft of 1898 sets forth the subdivision into wards, the system of election and of appointment and removal of offi- cers, the manner in which legislative ordinances may be passed, § 88 ] Charters and Functions. 185 and enumerates 88 specific functions which may be exercised by the city council, ranging all the way from "licensing news- boys, bootblacks, fortune-tellers, clairvoyants, astrologers, and massage doctors," to incurring debts for parks; and there are minute regulations as to making contracts and granting munici- pal franchises. The principal city functions are the police and fire service, water, public lighting, streets, schools, libraries (pubUc and private), health, corrections and charities, parks, municipal franchises, and taxation and finance for carrying on these great purposes. It is a fundamental principle of American law that no grant of power to a public corporation is irrevocable. Hence no legislature can give to any city authority which a subsequent legislature cannot wholly take away; otherwise we should have the mediaeval spectacle of cities within a state and yet inde- pendent of it. The purpose of a charter or amendatory act is to determine how a municipality shall govern itself. Legislatures go much farther, by ceaseless legislation directly affecting the relation of people to their city governments, and sometimes taking the government out of their hands. They do this in three ways: (i) By reducing or expanding the powers of cities, often for pri- vate or temporary ends. (2) By frequent and often causeless change of details. If a city, for instance, has a mayor with a term of three years, and a new charter is adopted with a term of two years, the mayor goes out of office a year before he expects. (3) By outrageous denial of any right of municipal home rule, — as, for instance, by the Pennsylvania "Ripper Bill" of 1901, under which the government of several cities, especially Pittsburg, was taken out of the hands of the people by endowing the governor with the right to appoint a "recorder" with the power of the previous mayor, and the added power of dismissing other city officials. The resiilt was the uprising of the people of Pittsburg, in the next municipal election, against what they thqught was an imjustifiable deprivation of rights 1 86 City Governments. [§89 and a denial of self-government enjoyed by almost all other municipalities in Pennsylvania and elsewhere. 89. City Government by State Legislation. Of all forms of American fundamental law, city charters are most subject to alteration. Though superior to all city ordinances, and unalterable by either the government or the people of a city, they are, in the eyes of the legislature, simply ordinary statutes, changeable at will, and actually changed in many different ways, (i) By making a new charter outright : New York City has had four since 1783. (2) By general stat- utes providing new duties/ for all local governments, — as, for in- stance, the Massachusetts law that every community shall furnish opportunity for a high-school education. (3) By special acts applying to particular cities. Between 1880 and 1889 there were 390 such indirect amendments to the charter of New York City. Under the best conditions, special legislation for cities com- plicates the law till no public officer knows just where he stands. In New York State, for instance, of 33 considerable cities, only four have the same charter or the same system of assessing taxes. The laws with regard to a particular city are confused, and the body of law affecting all cities is still more confused. A plausible remedy for these confusions is embodied in the New York constitution of 1894, — namely, that a special act affecting a city may be vetoed by the mayor of the city so as to call public attention to the bill, though subject to be passed over the veto by a simple majority of the two houses of the legislature. In practice a Republican legislature almost always overrides a Democratic mayor, and vice versa. Another remedy is that the legislature shall pay closer attention to the recom- mendations of the city governments, which constantly ask the legislature to pass legislation in their behalf. Many statutes are passed without the' consent, or even against the protest, of the cities afTected. For example, the Ohio legislature in 1888 §89] State Control. 187 compelled the city of Cleveland to tax itself about $300,000 for the construction of an inartistic soldiers' monument. The regulating power of the states is also indirectly exercised in various ways, (i) By designation of city officials. For many years the mayor of New York City was appointed by the governor ; and in some states other city officials are still so appointed, although the practice is very unusual. (2) By assigning duties to city officials, outside their local functions. Many municipal officials are really also state officials exercising powers under the legislature, because the city service is also a part of the state service. The city clerks, for in- stance, constantly have duties of registration and record thrust upon them by the legislatures ; city tax-collectors also collect the state taxes, and must account for them ; city school authori- ties are bound to observe state laws as to the course of study, the length of the school year, the text-books to be used, and the examination of teachers ; the local police service is fre- quently used for the arrest of criminals against state laws. (3) The right to impose duties implies the right of the state to see that they are performed. Not only do the state courts, by mandamus and other proceedings, control city officials, but in some states, especially in New York, city officials, even elective, may be removed by the governor if they refuse to per- form their duties. The supervision of states over cities is as yet imperfectly worked out in the United States. A suggestion recently made is for a state municipal board, with the duty of watching over the municipalities and seeing that they comply with the laws. (4) Another method of controlling municipalities is through-' the creation of state instrumentalities for purely municipal service. The most frequent function selected for this control is the police : in Boston the police commissioners are appointed by the governor and are responsible to him, although the city must tax itself for the support of the police. The ostensible purpose of such commissions is to get the police out of politics ; i88 City Governments. [§90 sometimes, however, the system simply substitutes a different kind of poUtics. In New York, after various fluctuations, the police have been restored to the control of a commissioner appointed by the mayor. Again, the control of elections is so distinctly a state service that it is not remarkable that many city election boards derive their authority direct from the state. Commonly the people of the cities disHke this state supervision, because they feel it a reflection upon their capacity for self- government, and it is an inconvenience to subdivide local gov- ernment among various authorities. The tendency at present is to break up the state commissions, and to throw their func- tions upon city officials. (5) Some functions of cities and of rural governments are as a whole supervised or administered for the whole state by state boards. For instance, gas commissioners may pass upon the quality and price of gas in every city; state boards of health have powers of control over all the local boards ; about thirty of the cities and towns in the neighborhood of Boston have many common interests, and the state has created a " metropolitan " sewer commission, water board, and park commission. But side by side with the state system exist in most of the cities local sewer and park systems, with separate city boards. 90. City Councils. Cities have no judicial system of their own ; the so-called municipal courts and city courts are simply local branches of the state courts. The other two departments of govern- ment are nominally, separated from each other; in practice, however, much of the city executive business is performed by committees of the council, a clumsy method which prevents rigid responsibility. The city legislative department is in most cities much weaker than the executive, for its field of authority is limited at best, and is constantly encroached on by the state legislature. §9°] Councils. 189 Colonial city governments had usually a single council, part of the members of which were called aldermen, and performed special functions; yet by an amendment in 1796 to the third Philadelphia charter two separate councils were provided ; and the bicameral system speedily spread. In the Middle states this system is probably an imitation of federal and state government ; in New England, when a town was changed into a city, a board of aldermen was provided, with the previous executive powers of the selectmen, and in course of time became also the more important legislative body. Since about 1870, perhaps two thirds of the considerable cities have got back to a single legislative chamber, which is now required in all the cities of Ohio. The organization of local legislatures is very much like that of the state legislature : ordinarily each house, if there be two, elects its own president, who, like the speaker of the state legislature, appoints committees, and often practically controls all the proceedings. The lower house is considered a training- school for the upper chamber, which is commonly the least numerous body, is rated higher, and has larger functions : for instance, it often votes on nominations made by the mayor. The term of office is commonly one or two years, occasionally more ;^ and more than one or two reelections are not usual. In small places the city council may have not more than 1 2 members; in Boston there are 75 councilmen and 13 alder- men. Small salaries are common ; and in New York the members of the board of aldermen have salaries of ^1,000 per year. There are many petty privileges, such as theatre tickets, carriage hire, visits to other cities, etc. In almost every city the mayor, through the veto power, is a part of the legislature, and often presides over one or the other branch of the city government. As in the states, the veto may usually be overridden by a vote of from two thirds to four fifths : of 920 measures sent to Mayor Hewitt of New York in 1887, he vetoed 825, of which only 48 were passed over his veto. In general the city legislatures frame a large 190 City Governments. [§90 amount of legislation on small matters. The body of ordi- nances is constantly swelling, and is from time to time codified into a statute-book : the revised ordinances for the city of Hartford for 1898 contains 21 chapters and occupies 141 pages. Besides the ordinances, the city governments fre- quently pass resolutions on general political matters ; they often appoint committees to investigate executive officers ; and they are fond of sending committees about to other cities to examine the public service there, at the expense of the home taxpayer. The people of the cities are commonly not much interested in the action of their city councils. In a few cases the pro- ceedings of the city are reported verbatim and printed, but they do not appear in the newspapers of large circulation. In most cities there is little left for the city legislatures to do : in New York City, for instance, the aldermen have almost no large power except to grant franchises. Bribery is not unknown in city councils, and sometimes money is directly applied on a large scale. In 1902, in St. Louis, ^160,000 was deposited in a bank, subject to the joint control of the friends of a franchise, and of certain members of the city gov- ernment who undertook to get it through. The ordinance passed the council, but was vetoed by the mayor; where- upon the engineers of the scheme demanded that the money be surrendered to them. The original possessors resisted, and the matter finally got into the courts. Many men of high character serve on city councils. For instance, in Pittsburg, and in Chicago of late, a large majority of the council have been men of high public spirit ; but the labor is made unduly heavy by the executive committee work, and the opportunity for reputation is small. At present the city councils, from having been the centre and source of city government, have become the least important branch, and perhaps the least esteemed. Various reasons are given for this unhappy state of things ; perhaps the most forcible* is the feeling of the people of a city that they must appeal for good §9°] Councils. 191 government, not to their city representatives, but to the state legislature. From the beginning, the city councils exercised large ex- ecutive functions, at first through the upper house, commonly called aldermen, and then by standing committees on execu- tive matters ; and to this day most of the city governments, both in their ordinary legislation and in school matters, keep up the system of executive committees, which have power to settle on executive policies and to give directions to executive officials. For instance, in many cities there is a finance com- mittee, without whose consent practically no appropriation can be made ; committees on parks, public buildings, schoolhouses, text-books, frequently control park commissions or school superintendents and principals. This confusion of execu- tive and legislative functions, although common in state legis- latures, is unfortunate ; for the city councils change rapidly, and hence members of committees have often little experi- ence in their fields. It is hard to fix responsibility on a committee of several members ; and some one member of the committee, often the clerk or the secretary, really settles many matters of importance, although he is in no official relation to the executive department. A very common method is for the members of a committee to parcel out appointments and duties geographically : a committee on teachers, for instance, agrees that each member shall have the patronage in a certain ward or district. While city councils have been grasping executive power, they have suffered from several encroachments upon their nominal legislative power. The most important are those of the school board and the board of estimate. In nearly all cities the school board is a separate local legislature, appointed by the mayor in a few cases, but almost invariably elected either by wards, or on the general ticket ; it is usually too nu- merous for very efficient action, and is possessed of almost complete power over teachers, courses of study, and discipline. In some cities the school board also builds the schoolhouses 192 City Governments. [§9^ and levies a separate tax ; but a more common system is that appropriations shall pass through the hands of the regular city government, which provides new buildings. In many cities, the councils have no longer control over taxes and no power to initiate expenditures ; in some cases they may amend a budget ; in others they can only reduce the estimates, they cannot increase them. Many of the large cities, including New York, Buffalo, New Haven, Minneapolis, Cleveland (till 1902), Toledo, and Albany, have a board of 'estimates, made up of executive, usually elective, officials, especially the mayor and comptroller. This non-legislative body actually exercises the most important of all legislative functions, — namely, the laying and expenditure of taxes. The present Greater New York charter has an ingenious system in which some of the executive officers have one vote on the board of apportionment, some have two, and some have three, according to their importance. Upon the whole, these special financial legislatures seem to work well, and they are likely to remain, although they manifest distrust of the ordinary elective council. 91. The Mayor. As in the states, the municipal executive is divided into three parts : a single official, commonly called the mayor ; other executive chiefs, usually not appointed by the mayor ; and a force of executive subordinates. In the colonial charters no mayor was elected by popular vote : he was designated either by the governor or by self-perpetuating councils ; and the mayor of New York City was appointed by state author- ity until 182 1, when provision was made for the choice of mayor by popular vote, which is now practically the invariable system. Three quarters of a century ago people dreaded the estab- lishment of a one-man power, and hence the mayor was long inferior to the councils, (i) Until within twenty years the §90 The Mayor. 193 mayor has almost never had the power of appointing the principal executive officers of the city. (2) His power to ap- point lesser officers has almost always been subject to confirma- tion by aldermen or a council. (3) Large areas of executive power have been by the charter withheld from the mayor and retained by committees of the council, or given to separate executive boards. (4) In many cities, the early mayor had no veto power on ordinances passed by the council. Without a thorough appointing power, without a removal power, with- out adequate administrative powers, the mayor was sometimes a figurehead, more often an official having responsibility for acts which he could not control. About 1850 began the more systematic organization of city government, and in various charters the mayor received greater powers, including the qualified right to remove. By some of the most recent charters, — as, for instance, that of Boston, — the mayor may remove appointive officers without the consent of the council, and is thus enabled to compel obedience to his directions on pain of dismissal. In a few states, notably New York, the mayor may be removed by the governor. The ten- dency of new charters is now to strengthen the power of the mayor, by giving him the appointment of more officials (in some cities, not subject to ratification), and by giving him a larger removal power. Such charters were obtained in Richmond in 1870, in New York in 1870 and 1873, ^^ Pennsylvania in 1873, ^7 '^ general municipal statute for the organization of all cities of a certain class within the com- monwealth. Another improvement has been to extend the mayor's term, which is now two years in Boston, four years in Buffalo, and three years_ in Cincinnati. By this gradual process the mayor has been brought near to the governor in relative power ; but, like the governor, he still needs authority to appoint all the heads of departments, after the example of the national government. In the model pro- gramme of the National Municipal League of 1899, it is proposed that the mayor shall have the sole power of 1 94 City Governments. [§ 92 appointing and removing all executive ofificers except the comptroller. In the former Brooklyn charter, this system was extended to broad limits. In 1891 the Cleveland public executive service was divided into six departments, at the head of each of which was a "director" appointed by the mayor with the approval of the council, and removable by the mayor; subordinate appointments were made by the heads of depart- ments. This so-called "federal" plan has also been followed substantially in the charter of Greater New York ; of course it so concentrates power in the hands of the mayor as to call public attention to his acts, and he is justly held responsible for the acts of all his subordinates. This system of " responsible mayoralty," especially if it includes removal for cause which seems good to him, un- doubtedly tends to increase interest in the election of the mayor who exercises such large powers. It also greatly increases the efificiency of the executive, because the mayor can keep the various departments in line on carrying out a policy. Furthermore, it tends to check excesses on the part of the council, since the mayor who has the will has also the power, not only to veto measures, but by his conspicuous position to direct public attention against what he believes to be unwise. The power for harm of a responsible mayor, if public sentiment is apathetic, was strikingly shown in 1902 in the performances of the city government of Minneapolis, where the mayor sold permits to evade the law, and had to be driven out by prosecution in the courts. As head of the city, the mayor has important social functions : he welcomes distinguished visitors, represents the dignity of the city, and often takes part in great public occasions outside of his official duties. 92. City Departments. The city executive service is necessarily subdivided into many departments, most of the heads of which are elected, and often for different terms and at different times from the §92] Departments. 195 mayor. In the earlier years of American municipal experi- ence, such officials were commonly chosen by the city council, as some are still. It was thought a promising reform when, about 1850, the large cities began to elect their own munici- pal officers. The subdivision is not unlike that in the states. There is always one financial officer, and often several : thus, in the old Brooklyn charter there were separate departments of finance, audit, assessment, collection, arrears, and treasury. The city treasurer is often one of the most important of these officers, and in small cities combines most of the executive financial functions. Commonly there is another officer, the auditor or comptroller, who is practically the city bookkeeper ; and, as he decides, what payments are legal, his position is one of great importance. There is usually a city solicitor, or corporation counsel, who acts as a kind of attorney-general for the city. One of the most important departments is the police, usually headed by a commissioner, sometimes by a board of commis- sioners. Next in significance is the fire department, with a commission or a commissioner. The department of education is commonly quite separated from the rest of the city officers. Public works is an important executive department, sometimes subdivided into a building and a street department, with a street commissioner. The department of health is usually under the charge of a board. Street-cleaning is sometimes a separate department from either the board of health or the street department. In cities which have their own water or lighting systems, a water or a gas commission is common. In cities like New York, Philadelphia, and Baltimore, the county officers, sheriff, prosecuting attorney, treasurer, and so on, are in effect a part of the city system : the famous Tweed Ring of New York, in 1872, was made up of county officials. Except where there is a cabinet system of officers mostly appointed by the mayor, there can be little direct relation between departments. Sometimes the mayor calls the heads together at a daily or a weekly meeting, so that each may 196 City Governments. [§93 know what the other is doing ; but, unless removable by the mayor, the heads of departments are very likely to work against him. In general the salaries of city executive officials are un- reasonably small, much lower than those of the servants of great corporations who perform similar functions. The mayor of Greater New York receives $15,000 a year; the mayor of Boston, $10,000; the mayor of Chicago, $10,000. The cham- berlain of New York (the city treasurer) under the old system had $25,000 a year. In smaller cities such officers as the street commissioner, city treasurer, and city engineer receive from $300 to $3,000 a year, in almost all cases by an outright salary, for fees are uncommon. Some cities of the middle class pay more adequate salaries : the city treasurer of Indianapolis receives $8,500, while the treasurer of Springfield, Illinois, receives but $1,200. 93. City Officials and Employees. Below the heads of departments comes a little army of sub- ordinate officers of every kind, down to the gang bosses for laborers. Where politics are highly developed, many such offices are created to furnish support to the district leaders. Most of the subordinates are appointed by the heads of their offices, and hence are subject to removal whenever there is a change, by election or by political revolution, among their chiefs ; therefore in later and better charters the minor officers are often appointed by the mayor. These positions are very eagerly sought, especially when protected by the civil service system. In some departments, the number of people holding respon- sible positions is considerable. In all the financial offices, — treasurer's, tax-collector's, auditor's, comptroller's, and the like, — there must be competent heads of bureaus, capable of directing a body of clerks ; in the offices of public works, there must be trained engineers and surveyors. Throughout, there must be some clerks who know the routine, or else the 1. CAMBRIDGE, MASS. 2. PHILADELPHIA NEW ORLEANS CITY BUILDINGS LOUISIANA §93] Officials and Employees. 197 machinery of business would stop altogether ; hence there will always be found a small number of ofificials retained from year to year. In Cambridge, Massachusetts, the present city treasurer, chosen by the city council, has been reelected twenty-four times. Below the responsible men who exercise discretion, every large city has two large bodies of subordinates who take orders but do not give them. First in order are the policemen, the only city servants, except the fire department, with something like a military organization. Since the lives and property of the people depend upon the faithfulness of the police, in most cities they have something approaching a permanent tenure : in New York, for instance, they can be removed only for cause. The firemen, also, employed in a skilled and hazardous calling, are well paid, and in most cities have long tenure. For this very reason there is a tendency for policemen and firemen to organize and insist on a raising of their pay. The ordinary pay of the New York police force is ;^ 1,400 a year, with a retiring allowance. Next come the laborers on street, sewer, and water con- struction, and on the great public buildings. In most cities they have a precarious employment, since getting city employ- ment depends not on capacity but on a recommendation by a politician. Even in the few cities where civil service rules prevail, it is hard to provide a proper test for laborers. City •work usually costs more than private contract, because it takes more men to accomplish the same job, and they usually receive high wages. The labor organizations in general fa- vor some method of selection of public servants which shall not depend upon the good will of politicians ; and experience shows that it is possible to select unskilled workmen, not by any formal examination, yet without the favoritism and lack of responsibility which go with political appointment. 198 City Governments. [§94 94. Civil Service Reform in Cities. In view of the large number of minor employees, the appli- cation of the principles of civil service reform to cities is one of the most promising improvements now proposed. So far, only a small number of cities have been brought within the system. By the constitution of 1894 of New York, civil service reform must be applied to all the cities within the state ; by a statute of Massachusetts (1885) it may be applied to any city which so votes, and most of the Massachusetts cities have accepted the act. It has also been appUed, since 1895, to such cities of Illinois as by popular vote might desire it ; the city of Chicago by a large popular majority at once accepted it. The general principles of the reform are as follows : (i ) Candidates must pass examinations, " public, competitive, and free to all citizens of the United States"; only through such examinations can people enter the city service. (2) Ap- pointments are made provisionally : the head of an office may refuse to appoint at the end of a short period of probation, if he is not satisfied. (3) Promotions are to be made from one grade to another, on the basis of ascertained merit, seniority in service, and examination. (4) No person may solicit political contributions from any city officer or in any city office. These acts are sometimes disregarded outright by the. appointment or promotion of persons who have not been ex- amined ; but there are civil service commissions, whose busi- ness and whose interest it is to uphold the law. The law is sometimes lamed, however, by legislative or executive excep- tions, sometimes hundreds in number ; and rebellious heads of offices apply to the courts to delay the effect of the law, and attack it in its details. Perhaps the most effective opposition to the law is a constant current of contemptuous criticism in the press, and often in public speeches. The favorite charge is that the examinations are not practical, — a charge easily §94] Civil Service Reform. 199 disposed of by reading the published papers set for the different kinds of service. The mainstay of the merit system is that in practice a better grade of man is obtained for clerkships and similar tasks than by political appointment. Among skilled labourers, the likeli- hood is greater that the men appointed will actually be good workmen ; and the city officials, who are relieved from the pressure of appointing political friends to office, have more time to devote to their regular duties. This whole system of civil service reform is necessarily lim- ited by the power to remove for the good of the service. Wherever a responsible mayoralty has been established, he must have the power to remove heads of departments, for otherwise there could be no administrative unity. It is like- wise necessary that the heads of departments shall have power to remove their subordinates, not only for peculation or positive disobedience, but also for inefficiency. If, however, to fill the vacancy they must accept .the candidate shown by the civil service examination to have the best rating, there is no longer the temptation to remove simply because somebody else wants the office ; and hence the merit system of appointments to a large degree prevents removals, and thereby encourages men in office to do their best. CHAPTER XII. PROBLEMS OF CITY GOVERNMENT. 95. References. Bibliography: W. B. Munro, Bibl. of Municipal Govt. (1915), §§42, 61, 68, 69; A. B. Hart, Manual (1908), §§ 107, 108, 211; C. D. Wright, Practical Sociology (1909), §§ 66, 72; L. S. Rowe, Problems of City Govt. (1908), 94, 9S; J. B. Reynolds, Civic Bibl. for Greater New York (1911), 18-26; Harvard Univ., Dept. of Social Ethics, Guide to Reading (19 11), 210-215; Russell Sage Foundation, Social Survey: a Bibl. (1913); R. C. Brooks, Bibl. of Municipal Problems (1901). See also references to chs. xi above and xxx below. City Population: C. D. Wright, Practical Sociology (1909), chs. viii, ix; F. C. Howe, City the Hope of Democracy (1905), chs. xix, xx; C. A. Beard, Am. City Govt. (1912), ch. i; D. F. Wilcox, Am. City (1904), chs. i, iv; L. S. Rowe, Problems of City Govt. (1908), chs. iv, v; A. F. Weber, Growth of Cities (1899); F. J. Goodnow, Municipal Govt. (1909), ch. i; J. W. Bookwalter, Rural versus Urban (1910); D. F. Wilcox, Great Cities (1910), ch. viii; J. A. Riis, Children of the Poor (1903). — Sources: U. S. Thirteenth Census, Population (1913-1914); U. S. Twelfth Census, Bulletins, Nos. 62, 65, 70, 149. See also references to chs. xxix, xxx below. Effect of Foreigners on City Government: C. W. Eliot, Am. Contributions to Civilization (1897), No. 7; Cyclop, of Am. Govt. (1914), Foreign Elements in the U. S.; J. R. Commons, Races and Immigrants (1907), ch. vii; WvS. Bennet, Immigrants and Crime (Am. Acad. Pol. Sci., Annals, XXXIV, 11 7-1 24, 1909); F. J. Goodnow, Municipal Govt. (1909), ch. iii; H. P. Fairchild, Immigration (1913). — Sources: Municipal AJfairs (1897-1902); J. A. Riis, How the Other Half Lives (1890); J. A. Riis, Making of an American (1901). Remedies: Report of the Tilden Commission, in Municipal AJfairs, III, 434-454 (1899); S. Low, Problems of Municipal Govt. (1887); N. Matthews, City Govt, of Boston (1895), 174-185; J. A. Fairlie, Municipal Administration (1901), ch. xx; National Municipal League, Municipal Program (1900); F. C. Howe, City the Hope of Democracy (1905), ch. viii; S. F. Wilcox, Am. City (1904), ch. xi; A. L. LoweU, Public Opinion and Popidar Govt. (1913), ch. xviii; E. S. Bradford, Commission Govt. 200 § 96] Urban Residents. 201 (1911); W. B. Munro, Govt, of Am. Cities (1916), chs. xii-xiv; W. B. Munro, Municipal Adininistration (1916), chs. i, ii; H. E. Deming, Govt, of Am. Cities (1909); E. McQuillin, Municipal Corporations (191 1- 1913), I, §§ 84-100; L. Steffens, Shame of the Cities (1904); W. Gladden, Social Facts and Forces (1897), ch. v; C. A. Beard, Am. City Govt. (1912), chs. viii, xi, xiv, App. ii; New York City Bureau of Municipal Research, Six Years of Mimicipal Research (1912); H. A. Toulmin, City Manager (1915); O. Ryan, Municipal Freedom (1915); F. C. Howe, Modern City aiid its Problems (1915); J. Nolen, Handbook of City Planning (1915); C. L. King, Regulation of Municipal Utilities (1912); M. N. Baker, Municipal Engineering and Sanitation (1906); L. Veiller, Housing Reform (1910); National Municipal Review. 96. Urban Residents. What are the real difficulties of American cities, and how shall they be remedied? We may learn much from our own experience, and also from the solutions found in other coun- tries, especially in England and the English colonies, which have cheaper and more effective municipal governments than ours. The first difficulty in America is the immense city popula- tion, and the massing of the great cities of America on the Atlantic coast, the Great Lakes, and the Ohio and Mississippi rivers, with potentialities on the Gulf and Pacific coasts. Counting a city as an aggregate population of 8,000 or more, the 6 "cities" of 1790 had 132,000 people, or about one thirty-third of the population ; the 546 cities in 1900 had 25,000,000 population, about one third of the whole popula- tion ; and in New Jersey three fourths of all the people live in cities. The largest city in the United States in 1790 was Philadelphia, with 28,500 people, and the largest city in 1900 was Greater New York, with 3,437,000. In New England and the Middle states alone, about 14,000,000 people live in cities, and over 9,000,000 more in the interior states, from the Ohio to the Dakotas and Kansas; while in all the Southern and Southwestern states there are not 4,000,000. In twenty years Chicago has increased from 500,000 to 1,700,000. 202 City Problems. [§96 New York . 3.437,202 Chicago ,, . 1,698,575 Philadelphia 1,293-697 St. Louis . . 575.238 Boston . . 560,892 Baltimore 508,957 Cleveland 381,768 Buffalo . . 352,387 San Francisco 342,782 Cincinnati 325,902 Pittsburg . . • 321,616 New Orleans 287,104 Detroit . . 285,704 By the census of 1900, the twenty-five largest American cities in their order were : — Milwaukee 285,315 Washington 278,718 Newark 246,070 Jersey City 206,433 Louisville 204,731 Minneapolis 202,718 Providence 175,597 Indianapolis 169,164 Kansas City 163,752 St. Paul 163,065 Rochester 162,608 Denver 133,859 The rapid growth of great cities, especially of Philadelphia, Boston, and New York, has in part come about through the incorporation of former separate municipalities : Thus Man- hattan borough in New York, in the ten years from 1890 to 1900, increased only about 400,000; but during that period there was added nearly 2,000,000 of population from Brooklyn and the smaller boroughs of Richmond and Queens. This process is now about ended : Boston is the only large city which has adjacent to it a considerable urban region ; and at present its neighbors show no tendency to political union. The great centres of population in the United States are now well established, and most of them grew out of their relation to transportation : Boston, Providence, New York, Philadel- phia, Baltimore, Charleston, New Orleans, Galveston, San Francisco, are great shipping ports for distribution inland; Chicago, Duluth and Superior, St. Paul and Minneapolis, St. Louis, Cleveland, Buffalo, Pittsburg, Detroit, Milwaukee, Cincinnati, are on watercourses at convenient points for ship- ment. A few other cities, such as Columbus, Indianapolis, and Kansas City, have been created chiefly by the concentra- tion of railroads ; but it is altogether likely that all the great American cities of the future are already founded. § 97] Distribution of Population. 203 97. Distribution of Population within Cities, Within tlie cities the population is very unequally distrib- uted : for instance, in the areas of Chicago, New York, and Boston are large tracts of farming country still actually tilled, and also some of the densest centres of population in the world. The main problem in the distribution of people within a city is the relation of the business area to fhe residence area. Most cities have regions (usually on a water front) so far given up to the business of mercantile transportation and manufac- turing that at night they are almost deserted ; other parts of the city are almost free from business and constitute the homes, usually in two settlements, — a so-called "residence" section inhabited by the well-to-do, and a poor quarter often degenerating into slums. Until about ten years ago the residence quarter stood near the business section, so that business or professional men could live not too far from their daily duties. The introduction of the electric car has caused a great difference, because it is now as easy and almost as quick to travel two miles as half a mile ; hence the residence section tends to move far out, where the circle is bigger, and the values of intermediate property have been much diminished. The shifting of the residence quarter leaves many vacant lots, so that the American city is much less neatly and compactly built than the foreign city. On the other hand, except in New York, Philadelphia, and the heart of Boston and Baltimore, well-to-do people prefer detached houses instead of blocks of buildings. During the last twenty- five years the European system of flats has become frequent in cities, large and small ; it has the advantage of ease and simplicity of housekeeping, but deprives the occupants of separate pieces of ground which they may use as they like. The poor section of an American city is always squalid : the so-called " tenement-houses," in which families occupy suites of a few rooms, or even single rooms, always tend to depreciate ; and both rigorous statutes and honest administra- 204 City Problems. [§ 95 tion are necessary to prevent unhealthy and immoral crowd- ing. In some foreign cities, municipalities construct proper buildings for the poor; Naples has spent about $20,000,000 for this purpose, and in London large sums are going into new lodgings. The farthest point reached in America is legislation for pulling down the worst buildings, and leaving sites vacant for breathing-spaces. One reason for the crowding in cities is the presence of large numbers of foreigners, accustomed at home to live in close quarters. In many cities there are special foreign quarters, — an Italian section, a Russian-Jewish region, a Bohemian quarter, a Hungarian settlement. In such streets one might imagine one's self in the heart of a foreign city. The numbers and the races of foreigners differ much from city to city. Many Irish are settled in the large cities, espe- cially on the coast ; the Germans have been distributed through ports having direct steamer lines to Germany, partic- ularly New York, Philadelphia, and Baltimore, and also through most of the great interior cities ; the Scandinavians have pre- ferred the Northwestern country and the cities within it ; the Russian Jews have settled by preference in large Eastern cities ; the Italians have taken up small lines of business, principally in New York and Boston ; the French are very few outside the large Atlantic coast cities ; the Greeks have absorbed the fruit business in most cities. It is a great mistake to suppose that as a rule foreign-born citizens are less interested in good city government than natives. Some of the worst-governed cities have the smallest foreign elements ; and in the great communities of Chicago and New York, where nearly three adult men out of five are foreign, there is a keen interest in local government, and con- ditions are improving. The great trouble that arises from foreigners is the ease of rolling up a German or Irish or Scandinavian vote, and the difficulty of adapting people to new conditions of life. No wonder it takes time to arrive at a sense of personal responsibility for good city government § 98] Transportation. 205 among people who are living in what is to them a foreign country, who have torn themselves up by the roots from the land of their fathers, and who do not see all native Americans on the side of public righteousness. Americans-born are also a changeful folk. Many country homesteads have been occupied by members of the same family for a century or two, but not one man or woman in a hundred in the city lives in the house in which he was born. Neighborhoods change ; one set of people moves out, another set moves in ; and it is hard to plant the feeling of fond- ness for one's city, of pride in its beauty and in its good government. Some foreign cities, particularly in England, have hundreds of absolutely houseless people, who may be seen at night sleeping on park benches and under dry arches of bridges ; in American cities such persons are few, for, though tramps mov- ing from place to place have often no lodging- place, in most cities the destitute are received in rude lodgings at police station-houses. In England no person can vote who has not a fixed residence of some kind ; in the United States tramps and outcasts, who really have no continued relation to a city, are sometimes allowed to register from some place where they occasionally spend the night, and to vote. 98. Problems of Transportation. The irregular distribution of the population of our cities makes of great importance the system of transporting urban and suburban passengers. The most obvious method was by vehicles running through the ordinary streets. Such omnibuses or stage lines have nearly ceased to exist, though there is still a line on Fifth Avenue in New York City. Next came the horse-cars, first successfully introduced in 1845, when people were so glad to have a convenient method of transportation that they gave to the companies who built the lines almost any privileges asked. As population increased, such privileges became valuable, sometimes enormously valuable. 2o6 City Problems. [§ 98 Then in a few communities arose the system of elevated railroads, which could handle passengers much more quickly because they did not run into or across streets at grade. Such systems exist in Berlin, Paris, and London ; but New York, Chicago, and Boston are the only American cities in which they have been constructed. The next step was the introduc- tion of the electric cars, about 1890. The advantages of this system are that it does not require stabling of horses, and hence can be operated with much less real estate ; that the power is easily distributed and can be quickly increased or diminished ; and that larger and more commodious cars can easily be run at higher speed than is possible with horse trac- tion. The trolley lines have driven the horse-cars almost entirely off the city streets. Most of the trolley lines have an overhead wire ; in New York City, however, the roads have been compelled to put their electric supply in an under- ground conduit. , The original horse-railroads were separate short lines, but they have been gradually gathered together in larger companies serving particular districts. Under the trolley system there has been still greater consolidation, till in cities like Detroit, Richmond, and Boston the whole service is performed by a single company. The number of passengers is prodigious : in New York the various lines, surface and overhead, handle 865,000,000 passengers a year; in Boston the Elevated Rail- road Company, which also owns the surface lines, handles 214,000,000. The newest, and in many ways the most convenient, traction system is that of underground railroads. London has had one since about i860; Budapest and Paris have them; but the first American city to try the system was Boston, which in 1 895-1 898 built a subway about a mile long, and is now con- structing sub-marine tunnels, and is about to build a second subway. New York is now constructing a splendid system of subways aggregating twenty-one miles, to cost ^35,000,000 ; and other cities are likely to take up the same plan, which is § 9S] Transportation. 207 not affected by weather, is entirely out of the way, and does not disfigure the streets. The handUng of city passengers causes various complications with the city governments. In the first place, many street railroad companies have received perpetual concessions, — that is, rights to lay permanent rails for private gain in streets which are the property of the city. Such concessions are now counted so valuable that in the state of New York the consti- tution forbids any grant lasting more than twenty-five years. Where concessions run out and have to be renewed, the great companies are compelled to pay for the paving of a part or the whole of a street, or to pay a fixed license fee per car, or to pay a certain part of the gross receipts for the year. Even where companies have perpetual concessions, it has in several states been found possible to tax the value of their franchises, — that is, to compel them to make some return for their enormous privileges. The physical task of taking care of the throngs of people is a serious question. In most cities there is a system of free transfers, usually at the centre of the city, so that, starting from one suburb, one may often travel for a single fare, five, ten, or fifteen miles to another suburb at the extremity of the city ; and the city governments are always pressing the railroad companies to increase transfers. The almost universal fare throughout the United States is five cents for each passenger, no matter what the distance travelled. On foreign lines it is very common to have a system of coupons, by which a man pays in proportion to the distance, the lowest fare being about one cent. On most European lines no passengers will be re- ceived unless there are places for them ; in the United States, during rush hours, cars commonly have as many people stand- ing as sitting. 2o8 City Problems. [§99 99. Political and Party Organization in Cities. The suffrage in American cities is obtainable by all adult men not intellectually or morally incompetent ; only in Provi- 319; P- O- Ray, Pol. Parties (1913), ch. viii; J. Bryce, Am. Commonwealth (ed. 1910), I, ch. viii; Cyclop, of, Am. Govt. (1914), Art. on Presidential Elections; E. McClain, Constitutional Law (1910), § 40. — Sources: P. S. Reinsch, Readings on Am. Federal Govt. (1909), ch. xvi. The Presidency in General: J. A. Woodburn, Am. Republic (1916), ch. iii; E. McClain, Constitutional Law (1910), §§ 41, 120; R. L. Ashley, Am. Federal State (1911), ch. xiv; J. Bryce, Am. Common- wealth (ed. 1910), I, chs. v-viii; H. J. Ford, Am. Politics (1898), ch. xxii; F. J. Goodnow, Administrative Law (1905), bk. ii, ch. i; J. R. Tucker, Constitution (1899), II, ch. xii; W. Wilson, The State (rev. ed., 1898), §§ 1323-1351; W. H. Taft, Our Chief Magistrate (1916); Cyclop, of Am. Govt. (1914), Arts, on Executive and Congress; President of the U. S., Authority and Influence of; President of the U. S., Con- stitutional Powers of; W. W. Willoughby, Constitutional Law (1910), II, ch. hx; T. M. Cooley, Constitutional Law (1898), ch. v. — Sources: C. A. Beard, Readings in Am. Govt. (1909), ch. be; C. L. Jones, Readings on Parties (191 2), ch. iv; P. S. Reinsch, Readings on Am. Federal Govt. (1909), chs. i-iii. Functions of the President: F. J. Goodnow, Administrative Law (1905), bk. ii, ch. iii, pt. i; E. McClain, Constitutional Law (1910), §§ 122-136; J. A. Fairlie, National Administration (1905), chs. i, ii; ■ E. C. Mason, Veto Power (1890); W. Whiting, War Powers (1871), 66-83, iS9~325; C. R. Fish, Civil Service and Patronage (1905); L. M, Salmon, Appointing Power (Am. Hist. Assoc, Papers, I, 291, 1886); A. Conkling, Powers of the Executive Department (1882). — Sources: J. D. Richardson, Messages of the Presidents (1896-1899); C. A. Beard, Readings in Am. Govt. (1909), ch. x. See also references to chs. xvi, xx, xxiii, XXV, xxxi below. 258 § i2i] History of the Presidency. 259 121. History of the Presidency. That one person should stand at the head of the state is natural in a monarchical government, and has often been the practice of republics ; but it is not the only or the obvious method. The Federal Convention found it a difficult matter to provide a single-headed executive which should be free from control by Congress. For weeks the idea of an executive council was discussed ; then the Convention declared for an election by Congress ; and at last it decided for a single execu- tive, chosen by indirect popular election. The presidency has in a century changed from what the Convention had in mind. The growth of the republic has thrown new responsibility upon the president; the cabinet has grown up, and has gained strength as time went on ; and, in passing, from individual to individual, the traditions of the presidency have been well transmitted and often expanded. From 1789 to 1903 there have been twenty-five presidents of the United States, most of whom have set an impress upon the office. Washington, from 1789 to 1797, made the first series of appointments, established the first relations with Con- gress, inaugurated a foreign policy, and began the use of the veto power. Such was the popular confidence in the president that he carried through nearly every policy which he publicly advocated ; and, although bitterly maligned by the opposition press, he retained the love and confidence of the country to the end of his administration. John Adams, from 1797 to 1801, was a party president, at odds with the opposition and engaged in quarrels with a large faction of his own party. He added little to the president's power, except that he dismissed a member of the cabinet outright and thus created a valuable precedent. Jefferson's presidency, from 1801 to 1809, had an unex- pected effect on the development of the office. Jefferson beheved in reducing federal powers to the lowest point pos- sible, and he naturally favored legislative authority as opposed 26o The President. ' [§121 to one-man power. Yet no president from that day to this has ever had such unquestioned influence over Congress : in both foreign and domestic affairs he asserted the primacy of the president. Madison and Monroe were both men of less dominant temperament ; and John Quincy Adams was so hampered by the refusal of Congress to accept any policy which he ardently advocated, that the power of his office declined in spite of all his efforts. The diminishing of the prestige of the presidency was checked by the next president, Andrew Jackson, from 1829 to 1837. Jackson broke loose, was the first president to employ his veto power frequently and with determination, and ended by converting a hostile majority in both houses into a party majority in his favor. Van Buren, Harrison, and Tyler added nothing to the power of the president, and Tyler weakened it by dissensions with Congress. Polk, however, from 1845 to 1849, ^^^ one of the most forceful of all American presidents, and the first to show the immense power which may be exercised by the president in time of war. His successors, Taylor, Fillmore, Pierce, and Buchanan, raised neither the prestige nor the power of the presidency. Pierce was the weakest of all the American presi- dents, and much under the influence of his cabinet officers ; and Buchanan at the end of his administration became involved in the secession controversy, in which both sides thought he showed weakness and indecision. The greatest of American presidents was Lincoln, who came to the office less experienced in public affairs than any prede- cessor. His success in trying circumstances is the proof of his genius. He made head against Congress at a time when that body was seizing new powers ; and above all presidents he secured the confidence of the people. He raised the presi- dency to its highest point of power and responsibility, and was allowed so to raise it because people knew that he would give up his war powers when the war ended. Andrew Johnson inherited all the difficulties of the Civil § 122] History, 261 War without any of Lincoln's gifts. The House of Representa- tives demanded his impeachment, and the Senate lacked but one vote of the two thirds necessary to remove him from office, and thus to make the presidency forever dependent on Con- gress. General Grant, from 1869 to 1877, was a better presi- dent than either his friends or his enemies realized. He was the first president to take interest in the improvement of the national civil service, and he used his veto oftener than any president who had preceded him. President Hayes, by his veto of appropriation bills bearing riders, nearly broke up the practice of riders. President Gar- field died in the midst of a contest for the dignity of his office. Under President Arthur an efficient civil service act was put into execution. President Cleveland, from 1885 to 1889, and again from 1893 to 1897, showed a strong determination to preserve the accumulated prerogatives of the presidency ; he vetoed a large number of private bills, and continued President Arthur's policy of slowly improving the civil service. President Harrison, from 1889 to 1893, was out of touch with Congress, and could not add to the power of his office. President McKinley, from 1897 to 1901, was more like Jefferson than any other president, in his quiet control over Congress and his dealing with out-lying possessions. At the time of his death, on September 14, he was one of the strong- est and most powerful presidents that had ever occupied the White House. President Roosevelt has a popular support and confidence granted to few of his predecessors. 122. The Choice of the President. In the Federal Convention, many suggestions were made as to the election of the president, — that he should be chosen by Congress, by the people at large, by the Senate, by electors. Eventually the last of these methods, although almost unknown in the states, was chosen, because every other method was more inconvenient. By a direct popular election, large ma- jorities concentrated in a few states might bring in a president 262 The President. [§ 122 who was unpopular in most of the country ; and election by Congress would almost certainly mean such previous pledges by the successful candidate as would leave him at the mercy of the legislative department. The method of choice by electors has some difficulties. How shall electors be chosen? The constitution provides simply " that each state shall appoint in such manner as the legislature thereof may direct " its quota of electors. For many years electors in some states were chosen by the legisla- ture, — as late as 1876 by the legislature of Colorado; but ever since 1792 it was more common to choose them by pop- ular vote. Shall they be chosen by districts, like members of Congress? This was the practice in Maryland for many years, and was tried in Michigan in 1892. The method at present, however, is that all the electors from a particular state shall be chosen together by one plurality. Hence in the election of 1884, by a majority of about 1,000, the thirty- six electoral votes in New York were cast for Mr. Cleveland, and thereby Mr. Blaine was defeated for president. The voters in presidential elections are the same as the voters for the more numerous branch of the state legisla- ture. From 1870 to 1894 there was a system of protecting the polls by federal inspectors; at present the conduct of presidential elections is left wholly to the state authorities. In early times the choice of electors did not necessarily come on the same day throughout the country, but in 1845 Congress prescribed the Tuesday after the first Monday in November. It is a day of great excitement, and few elections call out such a large proportion of the voters. The machinery for report- ing the count is now so nearly perfect that within five or six hours after the polls have closed the result of the contest is usually known throughout the country. Strictly speaking, there is no election in November, — only a choice of a certain number of persons in each state who are empowered to elect a president. The original thought was that the electors would act irrespective of party : but in the § 122] Choice. 263 third election, of 1 796, it was understood beforehand that the FederaHst electors would vote for Adams and the Republican- Democratic electors for Jefferson ; and in the twenty-six presi- dential elections since that time there is no case of an elector who has cast his ballot in opposition to the expectation of those who voted for him. The electors, therefore, are really so many counters, — three for Delaware, thirty-nine for New York, and so on. The indirect system is intended to avoid a danger. Each state has as many electors as it has senators and representa- tives, and hence no president can be chosen who has not friends and supporters in about half the states in the Union : there cannot be such a thing as a New England president, or a Middle-state president, or a Southern president, or a West- ern president. Furthermore, the system avoids a great temp- tation to electoral frauds in the strong party states. In the election of 1900, Pennsylvania had 252,000 majority for McKinley, and Texas 121,000 majority for Bryan. Those re- turns might have been raised to almost any figure, if more votes could have designated more electors ; but no manipula- tion could carry more than 32 electors for Pennsylvania, and 1 5 electors for Texas. (i) These so-called " electoral colleges," chosen in Novem- ber, meet, one in each state, on the second Monday in January, cast their ballots, and despatch certified copies of the returns to Washington ; on the second Wednesday in February Con- gress meets to count the votes. The constitution provides only that the "votes shall then be counted." In 1877, when the electoral result was very close, the question whether the vote was to be counted by the Senate officers, or by joint agreement of the two houses, was all- important. Four states each sent in two rival returns. The majority of the House was Democratic and favored one set of returns, and the ma- jority of the Senate was Republican and favored the other ; whereupon the controversy became so bitter that a special act of Congress was passed creating an electoral commission (un- 264 The President. [§ 122 known to the constitution) of five senators, five members of the Houge, and five justices of the Supreme Court. In this commission of fifteen, by a vote of 8 to 7, the RepubUcan return from each of the four states was received ; and Mr. Hayes was declared elected by 185 to 184 electoral votes. In 1887, to prevent such controversy, Congress passed an act for the count of the electoral votes, of which the principle is that, if there is only one return from a state, it is to be received unless the two houses unite in throwing it out ; if there are two sets of returns, that one is to be received which has the certificate of a state tribunal appointed to canvass the vote, — that is, it is left to state authority to decide whether the electoral votes are cast by the electors who have been duly chosen. (2) If there is no majority of all the electoral votes, the president is elected by another method : the constitution pro- vides that the House of Representatives shall elect one from the three highest on the list, the majority of members from each state taken together casting one vote. Only twice has this method been used, and both times it has led to serious trouble. In the election of 1800, the Republican-Democrats intended that Jefferson should lead, and that Burr with the next highest vote should become vice-president ; each, how- ever, had 73 votes, and there was no constitutional election. With difficulty Jefferson was at last elected by the House in 1801. Under the twelfth constitutional amendment (which was at once introduced, and in 1 804 became part of the con- stitution) , the president and vice-president are now voted for separately, and such a deadlock cannot be repeated. The other House election was in 1824, when out of the three candi- dates — Jackson, Adams, and Crawford — John Quincy Adams was chosen by the House, voting by states. (3) A third naethod of becoming president is through the death or inability of the president, when constitutionally the vicfe-president assumes the office. Five times has this unhappy contingency come to pass. By the death of Harrison, April 4, § 122] Choice. 265 1 84 1, John Tyler became president; by the death of Taylor, July 9, 1850, Millard Fillmore became president; by the assassination and death of Lincoln, April 15, 1865, of Garfield, September 19, 1881, and of McKinley, September 14, 1901, Andrew Johnson, Chester A. Arthur, and Theodore Roosevelt respectively became presidents. Under constitutional author- ity to provide for the succession in case of the death or in- ability of both president and vice-president, in 1792 Congress enacted that the president pro-tem of the Senate should be next in succession, and after him the speaker of the House, a new election to follow within two months. January 19, 1886, Congress passed a much better law, which provides that the succession after the vice-president shall be secretary of state, secretary of the treasury, secretary of war, attorney-general, postmaster-general, secretary of the navy, and secretary of the interior. This makes in all nine persons, and it is hardly con- ceivable that every one of these nine should die or become disabled at the same time. There is no provision in this statute for a new election, and hence a president who thus gets into oiifice serves out the remainder of the term. The term of the president begins at noon on the fourth of March, and runs for four years. Washington was reelected, and might have had a third term ; and every president there- after until 1 84 1 was a candidate for reelection : John Adams, John Quincy Adams, and Van Buren were defeated ; Jefferson, Madison, Monroe, and Jackson were elected. From 1841 to 1 86 1 no president was renominated. From 1861 to 1901 there were four cases of double terms, — Lincoln, Grant, Cleveland, and McKinley. Lincoln died at the beginning of his second term ; Cleveland was re- nominated and defe-ated in 1888, again nominated and elected in 1892; Harrison was renominated in 1892, but lost the election. In general, a president of great force of character desires a renomination and is likely to get jt. Jef- ferson, like Washington, retired at the end of a second term, and thereby set a precedent which has ever since been fol- 266 The President. [§ 122 lowed. An effort was made to renominate Grant for a third term in 1880, four years after the end of his second term, but it failed ; and the country is now absolutely set against third presidential terms under any circumstances. The president and vice-president are the only officers of the United States who must be native-born citizens; they must also be thirty-five years of age, and must have resided four- teen years in the country. The unwritten qualifications are not so precise. With very few exceptions, the presidents have been men of long public service and high national reputation : John Adams and Jefferson had been vice-presidents ; Jefferson, Madison, Monroe, and John Quincy Adams had all been secretaries of state ; Jackson, William H. Harrison, and Grant got their reputation chiefly through their military service ; Van Buren and Buchanan had served as senators and as secretaries of state ; Polk had been speaker of the House and governor of Tennessee ; Presidents Hayes and Cleveland got their rep- utations principally as governors of close states ; Garfield and McKinley had had long and honorable experience in the House of Representatives, in which Pierce also had seen ser- vice ; Lincoln had served a term in the House, but had made no reputation there, and owed his nomination to his joint de- bates with Stephen A. Douglas. Of the vice-presidents who have succeeded to the presidency, Tyler had been senator from Virginia, Johnson military governor of Tennessee, Fill- more had been in Congress, and Arthur had had experience in minor executive federal offices only. President Roosevelt had been civil service commissioner, assistant secretary of the navy, and governor of New York. In general, the road to the presidency is through long public service, both because that inspires public confidence and because it makes a candidate widely acquainted. Most presidents are good public speakers ; no man has ever been elected against whom there was any suspicion of integrity ; and with few exceptions the presidents have shown themselves rhen of high public spirit. § 123] Life in Washington. 267 123. The President's Life in Washington. After the November election, it is customary for the suc- cessful candidate to remain quietly at home ; he confers with members of his party, makes up his cabinet list, and decides on appointments. In February he commonly goes to Washington; Lincoln on his way thither, in 1861, made a series of public speeches intended to reassure the country. The few days or weeks before inauguration are occupied chiefly with office-seekers and the preparation of the in- augural address. On March 4 the outgoing president escorts his successor to the Capitol, where the new president takes oath to the constitution and makes his address. He then calls a special session of the Senate, and begins his ad- ministration. In Washington the president lives in the White House, a stately building beautifully situated on a rise which sweeps down to the Potomac flats, with superb drawing-rooms used for the entertainment of visitors. Every president from John Adams has made it his residence in Washington. In 1902 a separate building was constructed for the executive offices, and the White House was restored and made a convenient family and official residence. The etiquette of the presidential office is simple : it is not expected that other people will sit while the president is stand- ing, or talk when he has something to say ; but that is about all. Nearly all presidents are free of access : any well-con- ducted and clean person who can show the doorkeepers that he has some actual business with the president may enter ; and if he has introductions from some responsible person, or can make his business clear enough to a secretary, the president will receive him. Large numbers of people, including whole visiting societies or their delegations, go to pay their respects at the White House. Members of the cabinet have the entree of the president's office at all times, and many senators and members of the House have an equally undisturbed privilege 268 The President. [§ 123 of access for themselves and their constituents and. friends. Indeed, presidents sometimes find it hard to get their meals because of the 'pressure of callers. The first two presidents set up a formal system of receptions and levees ; but Jefferson inaugurated what he called " repub- lican simplicity," which reached such a point that he received the minister of Great Britain, when he came to make an offi- cial visit, by opening the door himself, wearing brown stock- ings not entirely clean, and slippers down at the heel. Since his time most presidents have kept up a dignified social life. Family and personal friends who visit Washington are often invited informally to the family meals ; and there are numer- ous state dinners at which the guests are foreign diplomats, members of the Senate and the House, and civil, military, and judicial officers. Presidents rarely make visits or calls in Washington ; but an invitation to the White House always supersedes any other engagement. Most presidents go away from Washington for a part of the summer ; and since the time of Washington they have been in the habit of making long journeys to distant parts of the Union, often speaking freely to great numbers of people on the way. President Jackson came to New England in 1833, and was received with enthusiasm. The long trips give one of the best opportunities for people to get acquainted with the president. From time to time he holds a public levee at the White House, to which respectable people are freely admitted ; and it is an absurd and fatiguing custom that he must shake hands with each of these visitors. From 1789 to 1800 the president made a formal speech at the opening of Congress ; but now he never officially com- municates with Congress in any other way than by a written message. The correspondents of the great newspapers come daily to the White House, and a secretary gives them any information which the president desires to have circulated ; and in addition they put into their despatches what they learn from senators, cabinet officers, and other public men. § i24J Functions. 269 It is the policy of most presidents to keep the public in- formed ; in fact, most acts of the president, outside of diplo- macy, are necessarily known to so many executive officials that they could not be kept secret if it were so desired. With his cabinet a wise president is in constant communi- cation, for they are the feelers through which he realizes pub- he opinion ; he also confers with the public men in his own party, and often with the opposition : from day to day he is holding council with dozens of people in and out of public life. He is the recipient of correspondence, often reaching a thousand letters a day, from people known and unknown to him. Countless gifts pour into the White House from all over the country, most of which have to be declined. The president has a force of stenographers and clerks, and an official private secretary, whose office is practically that of personal and con- fidential adviser. 124. Functions of the President. The duties and privileges of the president are stated in general terms in the constitution. He receives a compensa- tion fixed by Congress : the first salary act of 1 790 made the salary of the president $25,000 a year, a sum far larger than any annual amount then paid by individuals or corporations ; in 187 1 the salary was raised to $50,000 a year, which is barely adequate for the dignified maintenance of the office. In addition. Congress appropriates for the care and repair of the executive mansion, — for lights, stable, hot-house, fuel, and steward's salary. If the president wishes to make a trip by sea, a government vessel is placed at his disposal ; but the supplies and servants, both for the White House and for such excursions, are paid for out of the president's income. The powers of the president will appear in detail in the discussion of the functions of government. They may be briefly summarized as follows : — As commander-in-chief of the army and navy, he has large authority in time of peace, for he appoints, commissions, and assigns officers; and in 270 The President. [§ 125 time of war he is the mihtary chief. By his general appoint- ing power he designates foreign ministers and consuls, judges of the Supreme Court, and all other important officers. This power, combined with the power of removal, which does not require consent of the Senate, centralizes and unifies the whole hierarchy of executive officers. The president's power over ordinary legislation has already been discussed ; in addition he directs foreign relations, and submits treaties for ratifica- tion. In judicial matters the president has the power to par- don any offences, except in cases of impeachment. One of the most important functions of the president is to " take care that the laws be faithfully executed." Under this power he has general oversight over the whole executive service; through the attorney-general's office he also keeps watch of the courts ; and in case the execution of the laws is obstructed by mobs, riots, or insurrections, he may use the militia or regular military and naval forces to maintain the supremacy of the law. He may also call the attention of Congress to laws which are inadequate for their purposes. 125. Presidential Appointing Power. Manifestly, the president must exercise many of his functions through other executive officers of the government, and the selection of them is one of his most important functions. In 1787 the states committed such appointments chiefly to' the legislatures ; it is therefore remarkable that in the Federal Convention the power of appointment was given to the presi- dent, with the confirmation of the Senate. In order to make a valid appointment, there must first of all be an office to fill ; and the existence, title, and salary of the office are settled by Congress, — the term also, except in the case of judges and military and naval officers. The single excep- tion is that the president may appoint commissioners to get information for him, especially on diplomatic subjects ; but in such cases no salary can be paid without the authority of Congress. § 125] Appointing Power. 271 The next step is for the president to designate some person to fill the office, which he does ordinarily by a special message to the Senate, giving the name of the man and of the state from which he comes, and the cause of the vacancy. The appointment is usually referred to a committee, which is often slow in acting, but in due time reports either for or against confirmation. The matter is then brought before the Senate in secret session, and a vote is taken, often after discussion ; if a majority of the members voting are in favor, the appoint- ment is then completed. The president, however, has still to issue the commission, and if he refuses to do so it is practically an annulment of the appointment. The Senate has repeatedly attempted to get from the presi- dent written information before confirming nominations, and several presidents — among them Jackson and Cleveland — have roundly refused to submit papers for that purpose. In practice, many nominations fail of confirmation : in Jackson's administration one nomination had no votes in favor, and 46 votes against it ; Tyler sent in the nomination of Caleb Cush- ing as secretary of the treasury three times in two days, and confirmation was refused each time. The practice called "senatorial courtesy" greatly affects con- firmation. It has two meanings: (i) that a senator or an ex- senator will be confirmed without question; (2) that im- portant appointments to federal office within a state will not be confirmed against the objection of the senators from that state, if of the same political party as the president. This often means that the president must nominate a man designated before- hand by a senator, or declared by him to be acceptable. To the process of confirmation there are two exceptions, (i) If the Senate is not in session, the president has the con- stitutional power to make temporary appointments, to cease at the end of the next session of the Senate if not confirmed by that body. It is of course possible, but unusual, for the presi- dent to reappoint the same man the moment the Senate ad- journs. (2) Congress hag constitutional power to authorize the 272 The President. [§ 125 president to make certain appointments without confirma- tion by the Senate, — for instance, that of the Ubrarian of Congress. Many influences are brought to bear upon the president, (i) He uses his own personal knowledge of men, so far as it goes. Washington, for instance, knew all the military, and most of the civil, officers of the Revolution, and was therefore able to make intelligent appointments. (2) Even Washington, however, was from the first obliged to depend, for his knowl- edge of the character and capacity of candidates, upon the in- formation of other people, especially upon that of members of the House and Senate who were at the seat of government and at the same time in touch with their constituents. (3) Sen- ators and representatives of the same party as the president become the natural distributors of the patronage ; and, so long as the president insists that the persons so suggested shall be men of character and fitness, this method does not work ill. (4) If the members of Congress from a state or a district are among the political opponents of the president, somebody else — a former member of Congress, or a leading politician — is recognized as the person whose recommendation receives most attention. (5) The president is subject to strong pressure from candidates and the friends of candidates, who write let- ters and send delegations. He receives the papers and takes them into consideration. Since Congress is a body containing many distinguished men, it is natural that members should often be selected for execu- tive offices. There is a constitutional provision that no senator or representative shall, during the time for which he is elected, be appointed to any office which has been created, or the emoluments increased, during such time ; and that no person holding office under the United States shall be a member of either house. This provision absolutely prevents anything like the parliamentary system, under which the great executive officers are also habitually members of one or the other house. Whenever a member of Congress is appointed to office, his § 126] Relations with Congress. 273 acceptance is considered a resignation of his place in Congress. In about thirty cases, senators have resigned to accept cabinet offices. A similar, though unwritten, limitation is that no person hold- ing any significant state office shall also hold a federal office. This again is different from the principle of the European fed- erations: the parliamentary ministers of the German states are often also members of the Bundesrath, the German body which corresponds to our senate. 126. Relations with Congress. The right of the president to initiate legislation is one of great importance, because his annual and other important messages are printed throughout the country and concentrate public opinion upon the measures which he advocates. An example is President Cleveland's tariff message of 1887, which made the tariff an issue in the presidential election of i888j. The veto power gives to the president, upon its face, as much influence over legislation as one sixth of the members of each house have ; and practically it gives him more than a sixth, because the veto attracts public attention. The president has many indirect means of affecting legisla- tion and legislators. ( i ) He is frequently a recognized party leader. Thomas Jefferson, Andrew Jackson, Grover Cleveland, and William McKinley are examples of presidents of this type. (2) Almost every president has powerful personal friends in both House and Senate, who are ready to defend his sugges- tions and to introduce bills and amendments which meet his views. (3) The patronage of the president gives him a great hold upon both houses ; for, if he refuses to accept the names submitted to him by members of Congress, the latter lose repu- tation and political power in their own districts. Sometimes the patronage has been used to secure desirable measures. Thus, in December, 1864, President Lincoln made overtures to some of the members of Congress, and secured the necessary two-thirds vote for the pending Thirteenth Amendment. iS 274 The President. [§ 127 In general, the president is more powerful in Congress than any other individual ; but when a majority in one or both houses is opposed to him, his most unselfish measures are likely to be resisted for political reasons. President Madison found Congress intractable in 1 809 ; John Quincy Adams's adminis- tration was almost paralyzed by determined opposition ; from 1 83 1 to 1835 Jackson was engaged in an almost continuous struggle with Congress ; and Tyler came to an open breach with his Whig associates in Congress. Very frequently the party which elects the president loses control of the House in the middle of his term. Nevertheless, the president is so inde- pendent of Congress that in the long run he is likely to pre- vail in any controversy; Johnson was the only president to confront a working two-thirds majority in both houses which could override the president's vote and make him subject to whatever that two-thirds majority held to be constitutional. The truth is that the president is a personality and Congress is an organism, and popular interest and enthusiasm are much more likely to go to the personality. 127. Dignity of the Presidential OfBce. The American presidency is praiseworthy for its simplicity. The president has no high-sounding title: it was indeed proposed to give Washington the title " His Highness, the President of the United States and Protector of their Liber- ties," and to put his head upon the coins ; but the official title from that day to this has been simply " Mr. President." The president receives ambassadors, but he rarely converses with them upon diplomatic questions. He appoints thousands of officers, civil and military, and yet never wears a uniform even as the head of the army. Nevertheless, the position of the president is one of great dignity and honor. Few public men have been free from the pleasing thought that the presidency might come to them. General William T. Sherman declared that he would not accept the office if elected, for a man who had commanded a hun- § 127] Dignity. 275 dred thousand men in the field had no need of the presidency ; but Henry Clay, Daniel Webster, Stephen A. Douglas, James G. Blaine, Thomas B. Reed, and many other great men have gone to their graves in disappointment at missing the great reward. The president is the head of the nation: to him are addressed invitations from foreign governments to partici- pate in international congresses and in national festivities ; to him come official visitors from abroad, such as Prince Henry of Prussia, and a delegation of French notabilities in 1902; wherever he goes he is received with respect and honor, irre- spective of party. The dignity adheres to a president after his retirement from office: General Grant, for instance, in 1877 made a journey round the world, and was everywhere received with a distinction usually reserved for titled sovereigns. Other republics have presidents, notably Switzerland and France : the Swiss president, however, is only chairman of an executive board ; the French president is only a figurehead, having little actual authority. The president of the United States is the responsible head and director of three great national services : he appoints, instructs, and may recall all our foreign representatives ; he appoints, commands, and may dismiss all military and naval officers ; he appoints and directly or indirectly controls all the civil officers of the government, down to the postmen and the clerks in custom-houses. No president has power to carry the country far beyond its own purposes, either for good or ill ; but every president has power swiftly and efficiently to apply a freshly-formed public opinion, and he is much less affected by local currents of influence than is Congress. For instance, in the long discussion over coinage and currency, from 1878 to 1898, the presidents frequently vetoed acts of Congress ; and finally the majority proved to be on their side. The president is not only the official head of the government, and the most distinguished personage ; he is on the whole the most powerful single factor in American government. CHAPTER XVI. NATIONAL CIVIL SERVICE. 128. References. Bibliography: A. B. Hart, Manual (1908), §§ 109, no, 212, 213, 292; Cyclop, of Am. Govt. (1914), I, i9) 202, 285, 687; II, 198, 273, 506, 654, 763; III, 180, 374, 381, 564; Channing, Hart, and Turner, Guide (1912), §§ 176, 186, 196, 203, 204, 241, 254, 25s; F. A. Cleveland, Orgow- ized Democracy (1913), §336; P. O. Ray, Pol. Parties (1913), 295-297, 327-332; C. R. Fish, Civil Service and Patronage (1905), App. D. The Cabinet: R. L. Ashley, Am. Federal State (1911), ch. xv; J. A. Fairlie, National Administration (1911), chs. iv-xvii; J. H. Finley, Am. Executive (1908), ch. xiii; M. L. Hinsdale, President's Cabinet (1911); H. B. Learned, President's Cabinet (1912); R. B. Mosher, Executive Register (1903); Cyclop, of Am. Govt. (1914), Arts, on Agriculture, Department of ; Attorney General of the U. S.; Cabinet of the President; Commerce, Department of; Executive Departments; Interior, Depart- ment of; Justice, Department of; Labor, Department of; Navy, De- partment of; Post Office Department; State, Department of; Treasury Department; War, Department of; J. Bryce, Am. Commonwealth (ed. 1910), I, ch. ix; J. P. Hill, Federal Executive (1916). — Sources: P. S. Reinsch, Readings of Am. Govt. (1909), ch. ix; Senate Reports, 47 Cong., 2 sess. (1881), No. 837; annual reports of members of the Cabinet; J. A. Garfield, Cqbinet Officers in Congress, in Works (1883), I, 61-72. The Civil Service: C. R. Fish, Civil Service and Patronage (1905), chs. i-viii; Cyclop, of Am. Govt. (1914), Arts, on Appointments to Office; Civil Service Commission, Federal; Civil Service Examinations; Civil Service, Federal; Civil Service, Relation of, to Parties; Patronage; Removal of Public Officials; Spoils Systems; L. M. Salmon, Appointing Power (1886); C. R. Fish, in Am. Hist. Assoc, Report for 1899, I, 67-86; W. W. Willoughby, Constitutional Law (igio), II. ch. Ix. — Sources: Annual reports of the heads of departments; report of the Senate Com- mittee of 1888 on the executive departments {Senate Reports, 50 Cong., I sess., No. 507); Report of the Joint ("Dockery") Committee of 1893 {House Reports, 53 Cong., i sess., Nos. 49, 88); President's Commission on Economy and Efficiency, Reports {House Documents, 62 Cong., 2 sess., Nos. 458, 670, 732, 854; 3 sess., Nos. mo, 1252, 1912-1913); 276 § 129] Heads of Departments. 277 J. D. Richardson, Messages of the Presidents (1896-1899); U. S. Civil Service Commission, Annual Report (1884-); C. A. Beard, Readings in Am. Govt. (1909), ch. xi; P. S. Reinsch, Readings on Am. Federal Govt. (1909), ch. xiii. Civil Service Reform: T. Roosevelt, American Ideals (1897), No. 7; F. A. Cleveland, Organized Democracy (1913), §§ 337-343; P. O. Ray, Pol. Parties (1913), chs. xiv, xv; T. Roosevelt, Strenuous Life (1900), 41-112, 125-152; C. R. Fish, Civil Service and Patronage (1905), chs. X, xi; F. J. Goodnow, Administrative Law (1905), bk. iv, chs. iii, iv; E. E. Sparks, National Development (1907), chs. x, xii; J. Bryce, Am. Commonwealth (ed. 1910), II, ch. Ixv; G. W. Curtis, Orations and Addresses (1894), II, 477-508; D. B. Eaton, Govt, of Municipalities (1899), chs. vii, viii. — Sources: Am. Pol. Sci. Review; Good Govern- ment (monthly periodical); National Civil Service Reform League, Proceedings; United States Civil Service Commission, Annual Report (1884-); A. B. Hart, Contemporaries (1897-1901), III, § 158; IV, §§ 197, 199, 202. 129. Heads of Departments. The president not only acts by his own words and deeds ; he is also the head of the largest body of persons employed under one general direction within the United States. The total number of members of the House and Senate, with all the officials of both houses, is only 1,600 ; the United States judges, clerks, marshals, deputies, and other judicial officers are only about 2,250. There are, however, 236,000 federal executive officials and employees, divided like an army into various grades of officers and privates. Highest of all are the nine heads of departments, commonly called members of the cabinet. The constitution simply au- thorizes the president to " require the opinion in writing of the principal officers in each of the executive departments," and authorizes Congress to vest the appointment of inferior officers " in the heads of departments." It was understood that there were to be such offices as had been constituted by the old Congress in 1780 and 1781 ; but all the details were left for later legislation. Accordingly, in the course of a cen- tury nine cabinet offices have been created and their duties defined. 278 National Civil Service. [§ 129 In the early statutes for organizing these offices, the prece- dents of the Confederation were first followed by establishing Departments of Foreign Affairs, Treasury, and War. In the act of 1 789 for creating a judiciary, there was also a clause providing an attorney-general ; but not till 1870 was the formal Department of Justice organized, of which he is the head. The Navy Department was subdivided from the War Depart- nient in 1798, at the beginning of a naval war with France. There was a postmaster-general under the Confederation, and also under the federal government from 1 790 ; but it was not till Jackson's administration that the president recognized him as equal to the secretaries. In 1849 various functions were withdrawn from the other departments to create a Depart- ment of the Interior. In 1889 the previous Bureau of Agri- culture was raised to a department with a secretary. In 1903 a ninth subdivision, a Department of Commerce, was organized by act of Congress. All the heads of departments are appointed by the president, subject to confirmation by the Senate. For many years the salaries of the officers were meagre ; each member of the cabinet now receives ^8,000 a year. Most of the great functions of government are assigned to one or the other of these departments, (i) The secretary of state is in charge of foreign representatives and negotiations, and holds interviews and correspondence with resident min- isters from foreign countries. (2) The secretary of the treasury has the most laborious and the most responsible office : he is in charge of the public accounts, and of the collection, safe-keeping, and payment of the public money. (3) The secretary of war is, under the president, the head of the army and of the various clerical offices connected with the army; James Monroe in the War of 1812, and Edwin M. Stanton in the Civil War, acquired great reputation by their performance of these duties. (4) The attorney-general is the legal adviser of the president and heads of departments, and is also the prosecuting officer for the federal government, § i3o] The Cabinet. 279 and represents its interests as counsel. (5) The secretary of the navy has charge of the construction of ships and mainte- nance of the force, and gives orders to the officers. (6) The postmaster-general manages an important public service, and has by far the greatest patronage, since he appoints and commissions about 90,000 postmasters and postal clerks. (7) The secretary of the interior has charge of public lands, pensions, Indian affairs, patents, and other important sub- jects. (8) The secretary of agriculture supervises a variety of special services, such as the Bureau of Animal Industry, the Forestry Division, the Weather Bureau, and the experiment stations which are scattered through the states. (9) The sec- retary of commerce has charge of statistics and of corporation accounts. A few other functions are given to bureaus or commissions which are not subordinate to any of the nine great depart- ments. The Government Printing-Office is carried on by a public printer appointed directly by the president. In Wash- ington and elsewhere the government maintains numerous sci- entific bureaus, especially the National Museum, the Bureau of Ethnology, and the Smithsonian Institution. Among the in- dependent services are three offices which are almost the only examples of administration carried on by a national executive board : the Fish Commission, the Interstate Commerce Com- mission, and the Civil Service Commission. The Interstate Commerce Commission, created in 1887, is really an adminis- trative court to decide questions of transportation. The Civil Service Commission, created in 1883, watches over the se- lection of about 120,000 subordinate employees, distributed among the various departments. 130. The Cabinet. Inasmuch as the president exercises such large executive powers, it is remarkable that he was not surrounded by a council which should have some power to check him. In the Federal Convention various plans were made for a council 28 o National Civil Service. [§ 13° of state, or privy council; but all these provisions were dropped, perhaps because the Senate has a constitutional check upon treaties and appointments. The nine heads of departments by their association in the cabinet act as one federal instrumentality and supply the place of a constitutional council. The name "cabinet," as employed in England and on the continent, means the parlia- mentary ministry. The American cabinet is wholly different: — (i) The members are appointed by the president and con- firmed by the Senate, and are not really responsible to either house of Congress. (2) They are appointed singly; and if one is compelled by public sentiment to resign, the others remain. (3) The cabinet has no official relation to the prep- aration or passing of measures in Congress. The American cabinet is simply composed of those heads of great executive offices whom the president chooses to invite to meet him from time to time in council. He may summon six and leave out the other three ; or he may, like Jefferson, for many months hold no cabinet meetings at all. By tradition and practice, however, any man invited to accept a cabinet position understands that the president will make him one of a body of habitual advisers, and will usually consult him before taking any important step with relation to his department. Yet the president is not bound to ask or to take the advice of the cabinet on any public measure. For instance, in September, 1862, President Lincoln called his cabinet to- gether and invited them to listen to the draft of his proposed proclamation of emancipation, clearly stating that he did not ask their approval, since he had made up his mind to issue it. It is believed that Franklin Pierce used to poll his cabinet and govern himself by the majority vote ; but no other presi- dent has ever admitted that the majority, or the whole, of his cabinet could control his action. In choosing his cabinet, the president looks first of all for strong men who fairly represent his party. Personal friendship often goes a long way in such selections : for instance, Jackson §13°] The Cabinet. 281 appointed John H. Eaton, a man of little public experience, to be secretary of war. The president tries to represent the vari- ous geographical sections, and hence it is uncommon to select two cabinet members from the same state. He tries to recog- nize different wings of his party : thus, Lincoln appointed four old Democrats and three old Whigs to his cabinet in 1861 ; he said that there was a perfect balance, because he was the fourth old Whig. In the act creating the secretary of state in 1789, by the tie vote of Vice-President Adams, a^ clause was introduced recognizing the right of the president to remove heads of departments without consulting the Senate. Except in two in- stances, the possession of the power has prevented the neces- sity for using it : John Adams removed Timothy Pickering, secretary of state, in 1800; and Jackson removed William J. Duane, secretary of the treasury, in 1833. Johnson suspended Edwin M. Stanton, and tried to remove him, in 1867; and William W. Belknap resigned in 1875 to avoid impeachment. In many cases, however, members of the cabinet have resigned because they could no longer agree with the president : thus, Lewis Cass withdrew in i860 because he thought President Buchanan was not sufficiently active against secession. If a president is reelected, he commonly carries over the whole or a part of his previous cabinet, and sometimes a man has been retained even beyond eight years : William Wirt was attorney-general continuously from 181 7 to 1829, and Albert Gallatin was secretary of the treasury for thirteen years, from 1801 to 1814. Nevertheless, cabinet changes are frequent: the only president who lived through his term without a change in his cabinet was Franklin Pierce. Frequently, in case of a vacancy, a man is moved from one place to another : thus, Richard Olney was made attorney-general in 1893 and sec- retary of state in 1895. The most remarkable case of resig- nation was that of five of the six members of the cabinet in September, 1 841, as a protest against President John Tyler. Inasmuch as the president selects his own secretaries and A' 282 National Civil Service. [§ 131 has the power to dismiss them for reasons that seem good to him, he can secure harmony and cooperation. When, in 1833, Secretary Duane refused to remove the government deposits on the president's direction, Jackson forthwith removed him and appointed Taney, who took the required step. When, in 1886, it was found that Secretary Manning of the treasury was giving orders to capture Canadian seaUng vessels on the high seas, and that Secretary of State Bayard was protesting against the capture of American fishermen, the president interposed and decided upon a single policy. The president is dependent upon the secretaries for advice, for intimation as to the public feeling of the country, and for the actual performance of their duties in cheerful cooperation with himself. The cabinet is a kind of executive exchange, in which the members learn to know what is going on in the government ; and the president's attitude is constantly affected by the opinion of his advisers, although he is under no consti- tutional obligation to take it. A new president, whether he comes in by election or by succession from the vice-presidency, is justified in changing his cabinet, and invariably does make changes sooner or later. 131. Presidential Removals. The power of the president to remove at his discretion applies to all officers whom he appoints, except to United States judges, -and to military and naval officers, who ordina- rily have a right to a court martial. Constitutionally, the presi- dent appoints judges, foreign ministers and consuls, and all others except inferior officers; Congress decides where the line is drawn between higher and inferior. In 1896 there were 4,815 presidential executive officers confirmable by the Senate, all of whom were removable by the president at his discretion. The debate on the power of removal in 1789 turned on the question whether the removal of officers is an incident of their appointment (in which case removal must be approved by the § 131] Presidential Removals. 283 Senate), or is a part of the president's general duty faithfully to execute the laws of the United States. The experience of the states, and especially of the cities, shows that it is contrary to the public interest to allow a state Senate or a board of aldermen to block removal, and that Congress decided wisely in accepting the second doctrine. This important decision once made was adhered to for nearly eighty years. In 1867 the two-thirds majority of Con- gress passed over the president's veto a tenure-of-office bill, under which the consent of the Senate was practically required for the removal of cabinet ministers and other presidential appointees. President Johnson attempted to test the consti- tutionality of this statute by suspending Secretary Stanton. In i86g, when President Grant came in, the most important part of the act was repealed, and in 1885 the rest of it; so that the country has returned to the earlier practice. At the beginning of the federal government it was not usual to define the terms of officials, except that marshals and district- attorneys were appointed for four years only. In 1820 Sec- retary Crawford of the treasury secured the passage of an act under which the terms of certain officials who handled public money were to be four years ; and this principle has since been extended to most of the important federal officials, including the chiefs of many bureaus, the governors and judges of terri- tories, Indian agents, collectors and surveyors of the customs, pension agents, and especially postmasters having salaries of $1,000 or upwards. The result is that the commissions of nearly all the impor- tant officers of government expire at some time within the four years' term of any president, without raising the issue of re- moval. Although the cabinet officers and some other im- portant officials are appointed without limit of term, they .are precisely the officers who are necessarily changed when a new president comes in : hence, four years is considered the nor- mal term for federal office ; one reappointment is unusual, a second reappointment very rare. In this respect our. system 284 National Civil Service. [§ 131 is entirely different from that of most other civilized countries, in which such appointments are commonly made for good behavior. Yet the power to remove is absolutely necessary for efficient government. The national government is responsible for de- fence, for international relations, postal intercourse, and many other functions in which unity and persistency of policy are necessary. Unfortunately, this salutary power, used during forty years for the benefit of good administration, soon after 1829 became one means of demoralizing the public service and discouraging capable defence. The following table (pre- pared by Professor C. R. Fish) well illustrates this subject. The figures are for civil officers only, military and naval re- movals having been left out of account. t S a 0. w (2) ui £ S ■oSS «j.2 ni 4) tX (3) 5 'S 1 ■« (4) § c lU . il c 0. c « (5) S u la c « ■3 >- 0. « (6) g 3 -0 c .2 m B « (7) g '5 0. a. ct .M '5 . •V o 3340.3740:3^ '^3^40. 23146. 21)40. 1240.0^ . Jl.sa 40 ' 80''T'8o;-^;:,-^^ 8"0"t 8^0 t 80*"1j|2 80 80 „ 80 8o5|l|'->''' 30 * BO~aiM '. S\.j_ SE0.6..-' S ■•-■-■eJSEc.s, -^ SEq.*. jV", / sec.s. ° Se(!.2. jg^l SEdl. M.ogS" /-\ 24. es'gl 33.85 □ IP, r,^ ^ an o' o -i ■>'' /V C lft.S.1 T« n U 'S^o^ P "p Q q R r iNS 's ^=\^ RECTANGULAR SURVEY OF PUBLIC LANDS. § 154] Public Lands. 337 The three main objections to the rectangular system are as follows : — (i) The roads are laid out along the section lines, and hence commonly do not follow the valleys and streams, but go up hill and down dale. (2) The boundaries do not refer to natural objects, and the stakes are very easily displaced, a circumstance which leads to expensive litigation. (3). The government has never made a sufficient distinction between ordinary farming lands and timber, mineral, and grazing lands. Forested, stone, and coal lands are now listed to be sold for special high prices ; and mining claims are en- tered and recorded as a separate system. The rest of the former public land, about 1,170,000 square miles, or 748,000,000 acres, has been disposed of by the United States by one or the other of four methods, — sale, grants to individuals, grants to states for state purposes, and grants for internal improvements. (i) About one fourth of the land of the United States has been disposed of by direct sales. From 1785 to 1800 large quantities were sold to colonizing companies who came to the seat of government. Since the small purchaser found it almost impossible to get what he wanted, in 1800 a new system was adopted of selling lands on credit through land offices out on the frontier. This led to the buying of more land than people could pay for, and about 20,000,000 acres were taken back by the government. In 1820, therefore, a third system was adopted, — that of selling land for cash in any quantity to any comer, at a minimum price of ^1.25 per acre. This led in the two years, 1835-36, to the sale of 36,000,000 acres, chiefly to speculators, who disorganized the finances of the country and brought on a financial panic. From 1 84 1 to 1891 most land sales were made under the pre- emption system, by which any head of a family might take up one tract of farm land of 160 acres by living on it for six months and paying ^200. The available lands were so diminished that this privilege was withdrawn in 1891. The receipts for the sale of public land now foot up to about 338 Landholding. [§ 154 ;^3,ooo,ooo a year, chiefly from lumber and mineral land, desert land, or coal land. Public lands valuable for timber or building stone, not being mineral in character nor fit for agriculture, may, if uninhabited and unimproved, be bought at $2.50 per acre in lots of not more than 160 acres by any one person or asso- ciation. The land must be for the exclusive use or benefit of the purchaser and not for speculation. All public lands valuable for minerals, coal, salt, or petroleum are reserved for sale. Any citizen, or alien who has declared his inten- tion of becoming a citizen, may prospect for minerals on the public domain and locate not more than 1,500 feet along a vein of ore and from 25 to 300 feet on either side of it on the surface. The end lines of his claim must be parallel ; but he has the right to follow the dip of the ledge to any depth between these lines, although this may take him beyond the vertical plane of his side line. To retain his claim the locater must spend at least ;?ioo worth of labor upon it each year: if he fails to do so the property may be relocated by others. When he has spent ^500 worth of labor, he can obtain a patent from the government, if there is no adverse claim, by paying $5 per acre for the land located, and can purchase at the same price a mill site of not more than 5 acres. The patent gives him ownership and freedom from relocation. The process of entering and patenting a placer, saline, or petro- leum claim is the same as for a quartz claim, but no location by any association shall exceed 160 acres nor more than 20 acres for each individual claimant. The patents for these lands cost $2.50 per acre. Coal lands are sold to the extent of 160 acres to any individual and not more than 320 acres to an association, but if not less than 4 persons have expended $5,000 in improving the land they may enter 640 acres. If the land is more than 15 miles from a completed railroad the price is $10 per acre, otherwise it is $20 per acre. (2) Immediately after the Revolution began the practice of giving away lands to individuals. The Revolutionary troops § 154] Public Lands. 339 received about 10,000,000 acres; the soldiers of the Mexican War about 60,000,000 acres. After the Civil War there was no special military grant, because in 1862, by the Homestead Act, Congress had established the principle of giving away a quarter section of land to any head of a family, native or im- migrant, after he had lived five years upon it and had paid a fee of about $40. About 200,000,000 acres have thus been given away, for the distinct purpose of stimulating the growth of Western states. In addition, by the Tree Claim Act, from 1873 to 1 89 1 Congress gave 160, 80, or 40, acres of land to anybody who would agree to keep a certain number of trees growing on it for five years ; this system led to frauds, and after 9,000,000 acres of tree claims had been allowed, it was given up. The homestead system has of late been much abused by cattle companies, who advertise for people to homestead in order to sell out to them. (3) Of the original thirteen states, all except Rhode Island, New Jersey, Delaware, Maryland, and South Carolina had large tracts of wild land at the organization of the federal government ; and they sold those lands for their own pur- poses. As new states were admitted, each, beginning with Ohio in 1802, received from the government a gift of public land within its borders. For school lands was reserved one section in each township (a thirty-sixth of the public do- main) ; and, in states admitted since 1850, two sections in each township; the total is 70,000,000 acres. In 1862, land warrants for 10,000,000 acres, which might be located anywhere, were given to the states to found agricultural col- leges. The six new states admitted into the Union since 1890 got 28,000,000 acres for various purposes, and lands are still being transferred to the states from year to year. (4) By grants for internal improvements, first to the states and later to railroad corporations, over 140,000,000 acres have been given away. Many of the canals in states west of Penn- sylvania had government land grants, followed in 1850 by the first railroad land grant to the Illinois Central. Most of the 340 Landholding. [§ 154 great trunk lines radiating west from Chicago reserved such grants. In 1862 began the great land grants to the four main lines of Pacific railroads, — the Union and Central Pacific, the Northern Pacific, the Southern Pacific, and the Atlantic and Pacific. Great quantities came back to the government, because the projected roads were not built within the stipulated time ; but the net gifts are over 100,000,000 acres. By this consistent policy of the federal government to divest itself of its public lands as soon as possible, the principle of private ownership of land has been formally fixed ; even the lands given to the states and to railroads have in most cases been speedily sold to individuals or corporations. Within the limits of the present city of Chicago there were originally 9 square miles of land reserved for school purposes, which, had it been retained and rented, would have splendidly supported the whole system of schools without a dollar of taxes. Large amounts of land are still held by the great railroads, although it is their policy to sell them, so as to build up traffic over their lines. The operations of the Land Office in the fiscal year ending June 30, 1 90 1, show the following data : — Area disposed of, 15,600,000 acres; of which 1,300,000 acres were cash sales; 14,200,000 acres, miscellaneous entries and selections; and 100,000 acres, Indian lands. The cash receipts were ^5,000,000, of which ^3,600,000 was for land, $1,300,000 for fees and commissions. The expenses were $800,000. The money return to the United States is less than might be expected ; it foots up to $345,000,000 ; but the government has paid for various land cessions over $50,000,000, and for surveying and administering probably $200,000,000 more. It is unfortunate that the great value of the forests was not earlier realized, so that the white pines of Michigan, Wisconsin, and Minnesota, and the splendid red-woods of the Pacific coast, many of them over 250 feet high, might have been saved for commercial foresting. Mineral lands, especially gold § 154] Public Lands. 341 and silver, are not subject to entry under the ordinary system if their valuable contents are known; but many thousands of acres have been sold before their quality could be ascertained. A still more serious misfortune is that the government did not earlier realize that grazing lands cannot all be sold in tracts of 160 acres, since they are worthless without water: the people who take up the sections along the rivers really control the country back, and keep without rent millions of acres of public land, because nobody else can profitably use it. The government did not begin early enough to recognize that some lands could be made valuable by irrigation. The process of distributing the available land is now almost completed : little desirable farming land remains in the hands of the government ; and the most valuable remaining timbered areas have now been alienated, or are held back as national for- ests. The United States retains desert, rock, and mountains ; but, except for its parks and reservations, within a few years the government will not own, outside of Alaska, any land that individuals will want to live on or to exploit. CHAPTER XIX. BOUNDARIES AND ANNEXATIONS. 155. References. Bibliography: A. B. Hart, Manual (1908), §§ 65, 66, 115, 116, 167, 171; Cyclop, of Am. Govt. (1914), I, 47, i59, 166; II, 378; Channing, Hart, and Turner, Guide (1912), §§ 30-35, 97, 157, 160, 167, 187, 196, 217-219, 224, 244, 263, 265, 267. See also references in ch. xviii above. Boundaries: J. B. Moore, Digest (1906), I, §§ 125-162; H. Gannett, Boundaries of the U. S. and of the Several States (3d. ed., U. S. Geological Survey, Bulletins, No. 226, 1904); Cyclop, of Am. Govt. (1914), Arts, on Boundaries of the U. S., Exterior; Boundaries of the U. S., Interior; states by name; U. S. Twelfth Census, Bulletins, No. 74 (with map); maps in American Nation, passim; A. B. Hart, Epoch Maps (rev. ed., 1910); A. B. Hart, Wall Maps on Am. Hist. (1918). Annexations: Cyclop, of Am. Govt. (1914), Arts, on Alaska, Annexation of; Alaska, Boundary Controversy; Annexations to the U. S.; California and New Mexico, Annexation of; Louisiana Annex- ation; Philippine Annexation; W. W. Willoughby, Constitutional Law (1910), I, chs. xxii, xxiii, xxviii; B. A. Hinsdale, Old Northwest (1899), ch. x; T. Roosevelt, Winning of the West (1889-1896), II, ch. xiii; IV, ch. vi; A. B. Hart, Contemporaries (1897-1901), III, §§ 111-115, 143, 149; IV, §§ II, 14, 46, 174, 185; Louisiana and West Fla., in H. Adams, U. S. (1889-1891), II, chs. ii-v; V, 305-315; VI, 236, 237; E. Channing, Jeffersonian System (1906), chs. iv-vi; West Fla. and East Fla., in J. B. McMaster, U.S. (1883-1913), III, 31-34, 370-37S, 536- 540; IV, 476-483; H. B. Fuller, Purchase of Florida (1906); Oregon, in H. H. Bancroft, Northwest Coast (1884), II, chs. xv-xvii; Texas in J. H. Smith, Annexation of Texas (191 1); California, New Mexico, and Gadsden Pui'chase, in J. F. Rhodes, U. S. (1892-1906), I, 87, 92, 93; II, 7; G. P. Garrison, Westward Extension (1906), chs. viii, x, xv; Alaska, in F. Bancroft, William H. Seward (1900), II, ch, xlii; E. P. Oberholtzer, U. S. (1917-), I, 537-556; Hawaii, Samoa, and the Philippines, in J. H. Latane, America as a World Power (1907), chs. iv, viii; J. M. Callahan, Am. Relations in the Pacific (1901), chs. viii-x. For Porto Rico and the Philippines, see references in ch. xx below. 156. History of the National Area. The extension of the governmental area is a territorial function which falls exclusively upon the federal government. From the beginning the United States has been an expan- 342 § 156] National Area. 343 sionist nation, and its area has been increased from 828,000 square miles in 1789 to 3,692,000 square miles in 1902. The area of the Union on July 4, 1776, was that of the thirteen colonies which were united in the Revolutionary War; but their boundaries were not quite the same as of those states at the present day ; part of the present state of Georgia was then in South Carolina, and Western New York had not yet come into the jurisdiction of New York ; Maine was a part of Massachusetts, West Virginia a part of Virginia ; the peo- ple of Vermont were about to throw off their allegiance to New York; and in what are now East Kentucky and Tennessee there were settlements springing from Virginia and North Carolina. In the course of the Revolutionary War, the Six Nations in Western New York were crushed by continental troops, and George Rogers Clark conquered most of the country between the Ohio River and Lake Michigan. When the treaty of peace came to be made in 1782, the boundary agreed to by the English commissioners included not only the thirteen states, but Vermont, the whole of the Northwest Territory as far as the head of Lake Superior, and also the territory south of the Ohio River as far as the 31st parallel. Thus, partly as a re- sult of hard fighting and partly by skilful diplomacy, the United States more than doubled its area by the war. The next great territorial accession was Louisiana, which in 1803 was bought for about $15,000,000 and included the whole western valley of the Mississippi and its tributaries, to their remotest heads in the Rocky Mountains. The bounda- ries of Louisiana on the south were ill-defined and hard to establish ; eventually under the cession we yielded all claims to Texas beyond the River Sabine. The next annexation was that of Oregon. The relations of the United States with that region began with the discovery of the mouth of a river, in 1792, by Captain Gray in the ship Columbia, and he named the river after his ship; but the act which many years later was seen to have settled the 344 Boundaries and Annexations. [§ 156 question was the overland expedition of Lewis and Clark, sent out by Jefferson, which reached the Columbia in 1805. Our claim to Oregon was for a time contested by Spain, Russia, and England; and was not settled till 1846, when the present northwestern boundary of the United States was agreed on. The next annexation was really that of West Florida, which from 1810 to 1814 was occupied in successive sections by United States troops under the belief that it was a part of Louisiana. Recent investigations have shown that the French did not intend to include it in the cession. Next came the annexation of East Florida, by the treaty of 1819 with Spain; the United States paid $5,000,000, and thus acquired the whole coast line from Maine to the Sabine River. Next came the annexation of Texas in 1845. We now know that a part of the present state of Texas was claimed by France, and that we were really entitled to take possession of it instead of West Florida; but in 181 9 it was agreed that Texas, then a part of Mexico, should remain Spanish. Three years later the revolt of Mexico included Texas; in 1835 Texas revolted and set up a separate government ; and in 1845 the republic of Texas was incorporated into the United States. The next year war broke out with Mexico. In 1848 that country ceded California, and what was then called New Mexico, including, the present state of Utah. The south- western boundary was found difficult to run, and in 1853 the so-called "Gadsden Purchase " gave an additional strip in what is now Arizona. In 1867, after the Civil War, the United States obtained from Russia what was then called Russian America, and is now known as Alaska. In 1867 to 187 1 treaties were negotiated for the cession of the Danish West Indies and San Domingo, but the Senate refused to approve them. Then for nearly thirty years there was a halt in annexation; but in 1898 the Hawaiian Islands were annexed, and in the same year Porto Rico, the Philippine § 157] Processes of Annexation. 345 Islands, and Guam were ceded by Spain as the result of the Spanish War. In 1899 the United States acquired sole title to the island of Tutuila. Three little Pacific islands — Mid- way, Baker, and Wake Islands — have also been officially claimed by the United States since 1898; in addition, a few guano islands off South America and in the Gulf of Mexico, are temporarily a part of the United States territory. 157. Processes of Annexation. This territory has been annexed by five methods. (i) The original territory of the thirteen revolting states became theirs by the force of their own good right arms in the Revolutionary War : it was not a conquest, but a main- tenance of a previous occupation. (2) One large area and three small islands have come to the United States through the right of prime discovery of territory not previously held by civilized nations. The Columbia River was discovered in 1792 ; the first settlement, the trading post of Astoria, was established on the south side of the river in 181 1 ; the first permanent settlers went there about 1832. The island of Tutuila belongs to us as one of three nations which were the first to exercise sovereignty over the Samoan group ; Baker, Wake, and Midway are ours be- cause visited by American vessels and claimed by us before any other civilized power. (3) Several annexations have been brought about by peace- ful treaties of purchase: Louisiana in 1803, East Florida in 1819, the Gadsden Purchase in 1853, and Alaska in 1867. In three of these cases the government which owned territory was glad to transfer it ; in the other case, East Florida, Spain thought it better to part with it peacefully than to lose it by conquest. (4) Three annexations have been made by military con- quest : West Florida in 1810 to 1814; New Mexico and California in 1848; Porto Rico and the Phihppines, with the island of Guam in 1898. In all three of these conquests 34^ Boundaries and Annexations. [§ 158 the government of the United States felt qualms, and in each case paid a douceur to the other party : by the treaty of 18 19, ;^5, 000,000 was paid nominally for East Florida, but from the Spanish point of view also for West Florida; $15,000,000 was paid to Mexico in 1848, and ^20,000,000 to Spain with refer- ence to the Philippines in 1898. (5) In two instances territory has been annexed by the voluntary incorporation of independent states: Texas in 1845 and the Hawaiian Islands in 1898 were each annexed by a joint resolution, which is really nothing but a statute requiring a majority in both houses and the approval of the president. Texas was admitted as a state from the moment of annexa- tion ; the Hawaiian Islands were later created a territory. 158. Exterior Land and Water Boundaries. The process of territorial growth has involved the United States in many serious boundary controversies. The original treaty of 1782 designated, on the northeast, a line from the sea round to the head waters of the Connecticut ; but the ne- gotiators had before them an erroneous map, and the bound- ary could never be located on the face of the country. Not until after long controversy was an agreement made, in 1842, to divide the disputed territory, and a sum of money was paid to the state of Maine for the extinction of part of its claims. Of late the claim has been put forth that there is no constitutional authority for ceding any part of the United States to any other power. Besides this precedent, and the transfer of an island in the Niagara River, the United States doubtless possesses under the treaty power the usual sovereign right of ceding territory. The boundary through the St. Lawrence and its upper tributaries required many tedious surveys : in the rivers, the deepest channel was commonly the dividing line ; in the Great Lakes, the line lies on the bottom of each lake about midway of its breadth. The western line of 1782 was also impossible to locate, for § 158] Exterior Boundaries. 347 it was to run west from the Lake of the Woods to the head of the Mississippi, no part of which reaches as far north as the Lake of the Woods. This difficulty was adjusted in 1818 by a treaty with Great Britain, making the 49th parallel the divi- sion line as far as the Stony Mountains. The Oregon boundary was a subject of controversy froni 1792 to 1872, the term Oregon originally applying to the whole country between the Rocky Mountains and the Pacific, from California to Russian America. In 18 19 Spain gave up any claim north of the 4 2d parallel; in 1824-5 Russia gave up any claim south of 54° 40' ; this left Great Britain and the United States face to face, and in 1846 they agreed to con- tinue the 49th parallel to the Pacific as a dividing line. A new controversy arose as to the water boundary out through the Straits of St. Juan de Fuca, and was settled by the arbitra- tion of the Emperor of Germany, in 187 1, in favor of the American contention. The southern boundary was for many years subject to dis- pute. The Hne of the 31st parallel set forth in the treaty of 1782, though made without the consent of Spain, was in 1795 acknowledged by that power. Then from 1803 to 181 9 raged the controversy over West Florida and Texas; in 181 9 we gave up any contention west of the Sabine River and south of the Red River. Exactly what was the southwestern boundary of Texas when annexed in 1845 ^^^ never been as- certained : Texas claimed the Rio Grande " from its mouth to its source " ; but this included New Mexico with the ancient Santa F^, which had never been a part of Texas. By the treaty of 1848 the Rio Grande was made the Mexican bound- ary up to a certain point, and thence an irregular line to the Pacific. The line was disputed and set aside by the Gadsden treaty of 1853. At present all the boundaries from Passama- quoddy Bay to Puget Sound, and from the Rio Grande River to the Pacific, have been sur\'eyed and marked by stone monu- ments. Part of the boundary between Alaska and British Columbia is still in dispute. 34^ Boundaries and Annexations. [§ 159 The eastern and western boundaries of the United States are the sea line. That does not mean the water's edge either at high or at low tide, but a line three miles out from the shore at low tide ; furthermore, waters like Long Island Sound, Delaware and Chesapeake Bays, and the estuary of the James River are within the boundary of the United States, though their mouths are more than six miles wide. The sea bound- ary is therefore a line following the sinuosities of the seacoast three miles out, but crossing from cape to cape where there is a great land-locked water. 159. Territorial and State Boundaries. The internal boundaries between the states and territories have been created by one or the other of three agencies — royal grants, state agreements, and acts of Congress. (i) The boundaries of thirteen of the present states, from Maine to Georgia, are referable to grants made by the King of England in his capacity as feudal owner of the soil of all his kingdom — a right which could be practically exercised in the new world, with its wealth of soil unoccupied by Europeans. The royal grants were so vague and conflicting that many controversies arose in colonial times ; some of which were settled out of hand by royal orders, some by intercolonial agreements, and some by decisions of the Privy Council in formal suits on appeal. The kings did not know the geography of the country, and gave impossible boundaries, as that to Virginia in 1609 "up into the Land throughout from Sea to Sea, West and Northwest." Successive strips of territory were granted on different terms of gift, sale, or trans- fer to a proprietor or company ; and the only way to straighten them out was by consolidation : thus, Massachusetts absorbed Maine, Plymouth, and (at one time) New Hampshire. Differ- ent colonies contended for the same territory ; as New York, New Hampshire, and Massachusetts for Vermont. Massachu- setts, Connecticut, Virginia, and Carolina had grants to the Pacific Ocean, cutting across French and Spanish territory. § 159] Internal Boundaries. 349 Pennsylvania and Maryland overlapped. Dutch, Swedish, and French occupation complicated the boundaries. Half a dozen distinct little colonies were absorbed ; as Maine, Plymouth, New Haven, and West Jersey. Other colonies budded, as Delaware from Pennsylvania, and South Carolina from Caro- lina. At the time of the Revolution, however, the lateral boundaries, running inward from the ocean, were fixed almost as at present. (2) By intercolonial or interstate agreement other impor- tant lines were adjusted before 1787. The dividing Hne between Virginia and North Carolina was run almost to the Mississippi River in 1779; Mason and Dixon's line between Pennsylvania and Maryland was run in 1763-67. In 1782 by a congressional committee of arbitration the Wyoming Valley was assigned to Pennsylvania and not to Connecticut. South Carolina made a small cession to Georgia in 1787. New York and Massachusetts came to an understanding in 1786 by which Western New York was given up by Massachusetts ; New York also practically agreed to the independence of Ver- mont, which was not formally acknowledged until the state was admitted to the Union in 1791. Texas came into the Union on its own statement of its boundaries ; a statement denied by Mexico, and one of the causes of the Mexican War. There have been a few transfers of small areas from one state to another, particularly of " Boston Corner," a region separated by rugged mountains from the rest of Massachusetts, which therefore became a resort for desperadoes until it was trans- ferred to the neighboring state of New York in 1853. There is only one case of the subdivision of a state without its con- sent : West Virginia was set off from Virginia in 1862, and even here there was a nominal consent given by a legislature representing a fraction of the Old Dominion. (3) The boundaries of thirty states have been defined by the acts of Congress admitting them to the Union. As parts of the adjustment of the state land claims from 1778 to 1802, I Kentucky and Tennessee were admitted into the Union in 350 Boundaries and Annexations. [§ 159 1792 and 1796. In 1802 began the process of subdivid- ing the Western country into new states. When Ohio was admitted as a state in 1802, it was given an area of nearly 50,000 miles, that is, about the size of Pennsylvania; and this was the model for all the states east of the Mississippi River, no one of which has an area of more than 70,000 square miles. Texas, with 266,000 square miles, came in as a single state, and so remains. California under exceptional circumstances got an area of 160,000 square miles. The states west of the Missouri River, all admitted since i860, were cut on a larger scale, — Colorado, Nevada, and Montana each having over 100,000 square miles. The reason is that so much of the area of those states is taken up by mountains that they never can have the concentration of population of the eastern communities. Nevada was admitted prematurely ; it never had more than 62,000 inhabitants and has since declined to 42,000, who send two senators and a represent- ative — it is the " pocket borough " of the Union. A state boundary once adjusted by act of Congress is not often altered, although there have been a few cases : the boundary of California has been a Httle changed from the watershed of the Sierra Nevadas to a geometrical straight line ; the northwest corner of Missouri was added seventeen years after the state was admitted. The boundaries of the territories have been changed from time to time, the principle being to create a large territory and then to subdivide it as population increased or as states were set off. Thus the Northwest Territory of 1800 was much smaller than the North- west Territory of 1787 ; and Nebraska Territory for a few years took in everything north of Kansas, west of the Missouri, and east of the Rocky Mountains. The boundaries of our island possessions are simple, — the three-mile line out to sea round the islands ; after the Philippines were ceded it was found that two of the small islands lay outside the boundary of the treaty, and they were added by a subsequent purchase. With the exception of a § 159] Internal Boundaries. 351 few agreements between states for exchange of territory or the running of disputed lines, Congress has defined the bounda- ries of all existing political subdivisions west of the Alleghany Mountains. Occasionally mistakes have been made in sur- veys : for instance, when Michigan was ready to come in as a state in 1836, it was found to include a strip of territory till then held by Ohio ; and the dispute nearly caused a civil war. Congress adjusted the matter by giving to Michigan the so-called " northern peninsula." CHAPTER XX. TERRITORIES AND COLONIES. 160. References. Bibliography: A. P. C. Grifi&n, List of Books on Colonization (2d ed., 1900); Cyclop, of Am. Govt. (1914), I, 584, 603; II, 165, 168, 172, 187; III, 522, 525; Channing, Hart, and Turner, Guide (1912), §§ 167, 180, 187, 197, 203, 208, 221, 222, 225, 266; B. A. Hinsdale, Old North- west (1888), 429-432; A. B. Hart, Manual (1908), §§ 29, 30, 43, 44, 85, 86, 115, 116, 153, 154, 163, 168, 173, 178, 218, 219, 294; E. McClain, Constitutional Law (1910), § 184. Territories in General: J. A. Woodburn, Am. Republic (1916), ch. viii; W. F. Willoughby, Territories and Dependencies (1905), ch. i; A. B. Hart, National Ideals (1907), ch. ii; J. B. Moore, Digest (1906), I, §§ 100-124; B. A. Hinsdale, Am. Govt. (4th ed., 1917), §§ 409-412, ch. xh; A. B. Hart, Foundations of Am. Foreign Policy (1901), chs. V, vi; F. H. Giddings, Democracy and Empire (1900), chs. i, xvi, xvili. Government of Territories: E. McClain, Constitutional Law (1910), §§ 185, 186; W. W. Willoughby, Constitutional Law (1910), I, chs. xxiv-xxvii; W. F. Willoughby, Territories and Dependencies (1905), chs. ii, iii; Cyclop, of Am. Govt. (1914), Arts, on Alaska; District of Columbia; Hawaii; Territories of U. S., Organized; Territory, Ac- quired, Status of; Territory, Constitutional Questions of; J. Bryce, Am. Commonwealth (ed. 1910), I, ch. xlvii; T. Roosevelt, Winning of the West (1889-1896), III, ch. vi; M. Farrand, Legislation for Organized Territories (1896). — Sources: A. B. Hart, Contemporaries (1897-1901), III, §§ 46, 114, 135, 136; IV, §§ 17, 34, 42, 43, 186; Am. Hist. Leaflets, Nos. 2, 17, 22, 32; M. Hill, Liberty Documents (1901), ch. xvi; C. A. Beard, Readings in Am. Govt. (1909), ch. xxi. Dependencies: A. Shaw, Political Problems (1907), ch. ix; W. W. Willoughby, Constitutional System (1904), ch. xvii; Cyclop, of Am. Govt. (1914), Arts, on Canal Zone; Dependencies of the U. S.; Indian Govt., Stages of Growth; Indian Policy of the U. S.; Indian Reservations; § i6i] Jurisdiction and Ownership. 353 Indian Treaties; Indians, Constitutional and Legal Status of; Insular Cases; Philippine Islands; Protectorates, American; W. F. Johnson, Century of Expansioti (1903), chs. vii-ix; J. H. Latane, America as a World Power (1907), ch. viii; F. A. Ogg, National Progress (1918), chs. xiii, xiv; Am. Colonial Policy and Administration (Am. Acad. Pol. Sci., Annals, XXX, 1-134, 1907); P. S. Reinsch, Colonial Govt. (1902), part vii; D. S. Jordan, hnperial Democracy (1899), Nos. 3, 4; J. Bryce, Am. Commonwealth (ed. 1910), II, ch. xcvii; W. W. WUloughby, Con- stitutional Law (1910), I, chs. xxix, xxx; C. F. Randolph, Law and Policy of Annexation (1901); C. C. Langdell and S. E. Baldwin, in Har- vard Law Rev., XII, 365-416 (1899); Foreign Policy of the United States (Am. Acad. Pol. Sci., Supplement, 1889). — Sources: A. B. Hart, Contemporaries (1897-1901), III, §§ 113, 114; IV, §§ 186-191; M. Hill, Liberty Documents (1901), ch. xxiv; A. H. Howe, Insular Cases {House Documents, 56 Cong., 2 sess.. No. 509, 1901); the Insular Cases, in 182 and 183 U. S. Reports. 161. Jurisdiction Contrasted with Ownership. Ownership of land by individuals, corporations, municipali- ties, states, or the federal government implies the right to use it for crops, for taking minerals, for the site of buildings, in short for any purpose which does not interfere with the rights of other people. The main peculiarities of the ownership of land by governments are (i) that the holding rarely returns to private ownership, and (2) that government property pays no taxes. The municipalities pay none, because they are parts of the states ; the states, because it would simply be appropriating money in order to pay it back into the treasury ; the national g9vernment does not tax state or municipal prop- erty, and the states do not tax national property, because the right to tax involves the right to tax heavily if taxation be allowed at all, and either power might thus extinguish the authority of the other. In other incidents, public and private ownership are much the same : the states and the nation may buy and sell their real property, and may take and give title ; both the private and the public owner may warn off un- authorized people from entering their land, and may sue the trespasser who commits damage. The private owner of land is in all cases subject to the higher authority of the government. 23 354 Territories and Colonies. [§ i6i Private or corporate land, mines, or quarries may be com- pelled to receive government inspectors; the owner and his servants and tenants are always subject to the authority of governments to make, to execute, and judicially to apply laws over all property and persons within their boundaries. To this authority is usually applied the term " jurisdiction." For instance, the United States owns millions of acres of land in the far Northwestern states, but the states have prime jurisdic- tion over crimes committed upon those lands, over contracts made within them and relating to them, and over the personal relations of people living on them ; on the other hand, in the territories of Oklahoma, New Mexico, and Arizona, hundreds of thousands of acres are owned by private individuals, but the authority to make laws for the * transfer of property, for • roads, and the like is not primarily in the representatives of those people, but in Congress. There is a saying that " an Englishman's house is his castle," which means no more than that in England no person has a right to enter on the land of another in order to serve summons in civil cases. That principle does not prevail in the United States : no man may lawfully refuse to admit officers of the law, armed with a legal warrant, in search of persons charged with crimes or of evidence of the violation of law, or under due legal authority seeking to serve writs, subpoenas, and notices of suits. In practice, city policemen habitually enter, without warrants, all kinds of places where they suspect wrong- doing : for example, in New York City in 1902 gambling houses were repeatedly raided by the police. The federal system involves a double jurisdiction, and some- times a triple jurisdiction. For instance, federal laws against robbing the mail extend all over the Union, in all states and territories ; but separate state and territorial laws against rob- bing banks also apply. A United States statute on interstate commerce, a state law regulating insurance on freight in transit, and a municipal ordinance against the whistling of locomotives within city Hmits, may all apply to the same train § i62] District of Columbia. 355 on the same piece of track. The line between national juris- diction and state jurisdiction does not coincide with the state and territorial boundaries, and is hard to define exactly. On some subjects there is concurrent jurisdiction : for in- stance, the United States lays a liquor license on the sale of liquors in every state, and some states lay another tax upon the sale of the same liquor. To distinguish between the two ranges of jurisdiction is the task finally of the United States Supreme Court. There are, however, several kinds of terri- torial area in which the jurisdiction rests solely in the federal government, or in such temporary local governments as it may create. 162. District of Columbia. First of these special jurisdictions in public attention is the District of Columbia, which has been described in a preceding section as the seat of national government and the centre of national administration. In 1 790, by their acceptation of the act of Congress on the seat of government, the states of Mary- land and Virginia duly ceded all claim to jurisdiction over the District. Meanwhile for ten years the temporary seat of government was Philadelphia; but early in 1800 Congress, the President, and the Supreme Court took up their abode in the new city of Washington. Difficulties arose from the fact that the District had been partly Maryland territory and partly Virginia territory; and in 1846, at the request of Virginia, the southern part was receded, so that the present District of Columbia is an area containing about 70 square miles, wholly on the north side of the Potomac River. Its population is 279,000; the assessed valuation of private prop- erty about $198,000,000, and that of public property about $234,000,000. Under the constitutional power to legislate for the District of Columbia " in all cases whatsoever," Congress in 1800 en- acted that the then existing Maryland laws should apply to the part of the District north of the Potomac, and the Virginia laws 35^ Territories and Colonies. [§ 162 to the part south of the Potomac. For local purposes, the federal government has at different times set up three forms of government within the District: (i) in 1802 the city govern- ments of Washington, Georgetown, and Alexandria, each with a mayor and two councils; (2) in 187 1 a territorial govern- ment, with a governor and an elective house of delegates ; (3) this government got heavily into debt, and in 1878 the District vi^as turned over to three commissioners appointed by the president, with power to make local ordinances. The people have now no direct voice whatever in their local gov- ernment : the only legislative body is the two houses of Con- gress. In addition Congress has provided a special system of courts for the District, with a supreme court, which is of special importance because it often has occasion to try cases which involve the powers of federal officials acting within the District. Since a large part of the real estate in the District is owned and occupied by the government, the United States pays one half the cost of keeping up the District government, and the rest is assessed upon the private tax-payers. The committees on the District of Columbia in the Senate and House, especially in the Senate, have large influence over this government, which costs about ;^ 7,000,000 a year. Congress has, first and last, passed many special statutes for the District of Columbia, and most general laws (for instance, on bankruptcy, copyright, patents, the income tax) have been considered to apply to the District as well as to the states. In the Insular decisions of 1901, the Supreme Court seems to express a doubt whether a general law applies unless the District is particularly stated to be included. The most serious question of government that ever arose in the District of Columbia was slavery. From about 1820 petitions for the abolition of slavery were introduced at fre- quent intervals; in 1850 an act was passed regulating the slave trade in the District; and in 1862 another statute set the slaves free, with a compensation of about ;^ 1,000,000 to the owners. § 163] Forts and Sites. 357 163. National Forts and Sites. The same clause of the constitution which provides for the District of Columbia also authorizes " like authority over all Places purchased by the Consent of the Legislature of the State in which the same shall be, for the Erection of Forts, Magazines, Arsenals, Dock-yards, and other needful Build- ings." Under this provision, the United States has acquired many sites for lighthouses, military posts, navy yards, arsenals, post-offices, custom-houses, and many other public buildings. A formal cession of jurisdiction is obtained from the state legislature. Such cessions are usually very readily granted, sometimes outright, more commonly with a reservation that the land shall be used only for public purposes, and shall revert to the state jurisdiction if the United States ceases to own it or to use it for the purpose for which it is ceded ; and with other reservations as to jurisdiction. In 1860—61 was raised the important question whether a state could reoccupy such grants without the consent of the United States. All the government reservations within the limits of the eleven seceding states, except three forts, — Pickens, Key West, and the Dry Tortugas, — were seized by the states in 1861 ; and the war technically began with the forcible capture of Fort Sumter by the state of South Carolina. Since the Civil War nb attempt has been made to repeat such acts, and the principle is commonly accepted that by state cession such little tracts cease to be parts of the states, are not really within their boundaries, and are not subject to state taxation or to state laws unless there is a reservation to that effect. Crimes committed in them may be examined and punished by United States courts, although in such cases the courts follow the procedure of the local courts. The question of criminal jurisdiction over territory thus ceded to the United States is somewhat perplexmg, because most of such cessions include the restrictions that the state shall have concurrent jurisdiction, and that state processes run ; 358 Territories and Colonies. [§ 164 and Congress has enacted that even without such a reserva- tion state processes may be served. This means that a person charged with committing a crime within a state, who takes refuge in federal jurisdiction, may be followed and arrested by state authorities ; and that suits against residents of such territory may be entered in state courts. Certain cases from their nature go to the federal courts, whether they occur within or without the special federal juris- diction ; such are maritime cases, seizures under United States laws, and offences against federal laws, — as, for instance, discriminating in interstate commerce or robbing the mails. Since 1841 Congress has by law prohibited the acquirement or the occupation of any land over which the jurisdiction of the states has not been extinguished. Where that precaution has not been previously taken, crimes committed in public build- ings may still be tried by the state courts ; otherwise, Con- gress has power to provide for exclusive jurisdiction in such places, without reference to state laws or to state courts ; but in practice it allows concurrent jurisdiction for crimes not directed against federal authority. The ordinary citizen is not aware of these distinctions : if he is robbed in a custom-house and the thief is caught, he appears as a witness without concerning himself whether it is a federal or a state court, and. without noticing that in some cases the federal courts apply the law ^f the state. The real significance of the whole system is thtt it makes the federal government, in all its special jurisdictions, independent of the efficiency of state governments. 164. Indian Reservations. The next form of special jurisdiction is Indian reservations. Originally the only owners of the soil were the Indian tribes : the English settlers from the first admitted that they could obtain a right to the lands only by the consent of the Indians. As settlements increased, especially after the Revolution, the new ground was taken that the Indians had only a right of § 164] Indian Reservations. 359 " occupancy " ; and since the federal constitution went into force in 1789, nobody but the United States has had any right to deal with them. The Indian tribes cannot transfer lands either to individuals or to the state governments ; yet the only constitutional authority for national care of the In- dians is the clause that Congress shall have authority to regu- late commerce " with the Indian tribes." The real basis of the whole Indian system is the precedent of government con- trol in colonial and Revolutionary times. Another principle on which the United States insists is that Indian lands do not belong to individual Indians, but to the tribes as a whole ; hence the ordinary method of securing In- dian lands has been by agreement between a tribe and the federal government. Such agreements were for a century called " treaties," and had to be duly ratified by the Senate. Since 187 1, however, no "treaties" have been negotiated ; in- stead, " contracts " or agreements have been made by the president alone, or by authority of Congress. The basis of our Indian policy is to be found in the two principles that the land is tribal, and that it may be trans- ferred only to the federal government. Before the Revolu- tion, the white people possessed nearly all the belt of land between the Atlantic coast and the Appalachian range. After the Revolution, for half a century a system prevailed of draw- ing boundary-lines nearly north and south between the whites and Indians, the whites not to pass to the west, the Indians not to pass to the east. About 1830, the white settlements had so increased that they penetrated far into the Indian country ; and President Jackson adopted the new policy of confining the Indians within reservations surrounded by ring boundaries, outside of which white people might settle, but within which they could come only as visitors. He also moved the tribes from Georgia and Alabama beyond the Mississippi River, where their descendants now live in the Indian Territory; and many of the tribes from the North- western states were moved into similar reservations. 360 Territories and Colonies. [§ 164 So long as reservations were within a territory, it was simply a matter of convenience : one part was governed by a terri- torial legislature, another part, — the Indian reservation, — solely by Congress. When states containing Indian reserva- tions were admitted, those reservations remained political islands, not included within the jurisdiction of the states : for instance, the Ponca reservation in Nebraska, the Rosebud Sioux reservation in North Dakota, and the Modoc reserva- tion in Oregon are not legal parts of those states. The exist- ence of such reservations in Georgia late in the twenties led to a violent protest from that state, and finally to the forcible incorporation of parts of the former reservations within the state's county system. At present the federal government maintains 140 such res- ervations scattered throughout the West with a total area of about 76,000,000 acres, or 119,000 square miles, and an Indian population of 130,000. In the Indian Territory so called, there are governments with legislatures for separate tribes ; but it has no delegate in Congress, and is simply a local form of government permitted by Congress. In other reservations the only organized government is the tribal : the chiefs may punish petty crimes and decide local matters ; but the real government is the Indian agent, .who is practically governor, judge, and marshal, often inflicting mild punish- ments. For many years there were no courts to try offences committed by Indians against Indians, or by Indians against whites; but in 1885 the jurisdiction of the federal courts sitting in some Western districts was extended over the neigh- boring Indian reservations. The reservation system is now breaking down. The reserva- tions from time to time diminish in size, because they contain good land much coveted by white settlers, and capable of maintaining from five to a hundred times as many whites as Indians. Some reservations have boundaries established by treaty, and can be diminished only by consent of the tribe, which has usually been obtained by paying a sum of money ui a3" Greemvicll IXDIAN RESERVATIONS. IFrmn the Map cornpiled by the Commissioner of Indian Affairs, t908j BORMAY II CO.. N.y §165] Status of Indians. 361 for the cession, sometimes millions of dollars. Other res- ervations are established simply by an order of the president, and may be modified by him without ceremony. In general, the Western people do not like to have reservations in their neighborhood, and constant pressure is put on the government to diminish or abolish them. About 1880 efforts were made to move the Ponca tribes from their reserva- tions in Nebraska into other states, but they pined for the homes of their birth, and went back to the lands from which they had been taken ; and Congress finally restored their res- ervation. 165. Status of Indians. Under act of Congress, the control of the Indians is vested in a commissioner of Indian affairs, appointed by the president and subordinate to the secretary of the interior. The execu- tive officers of the Indian Bureau are the Indian agents, who until 1849 were also military officers; since that time they have usually been civilians. Each agent has a force of clerks, and often there is an agency doctor and farmer provided by the government; there are also schools at the agency and scattered through the reservation. The sale of liquor on res- ervations, or to the reservation Indians, is prohibited ; but it is practically impossible to prevent such sale in the neighbor- hood of reservations, as it is to enforce the regulation that white people shall not go on the reservation and take up lands there. President Grant instituted a body of officials called the Board of Indian Commissioners, which goes about among the reservations and examines and reports, but has no power of control. The Indians can also make representations through their agents, and sometimes send delegates to Washington to urge their interests. By act of Congress of February 8, 1887, an Indian who has formally left his tribe and settled down like other people be- comes thereby a citizen of the state and of the United States, entided to the same rights and privileges as other men ; but 362 Territories and Colonies. [§ 165 the Indians who remam with the tribes on the reservations are not subject to state laws, and have not the privileges of citizens. From the beginning of the Revolution to the present day, the federal government has hoped and attempted to bring the Indians up to such a scale of civilization that they might be relieved of this anomalous status. During the last twenty years, it has made special efforts to get the Indians to divide up the reservations into farms held in severalty, — that is, each family to have a title to a particular tract, with the pro- vision that they shall not transfer it within twenty-five years. About 108,000 Indians have thus come out of the reservation status; but about 130,000 remain on the reservations, practi- cally as wards of the nation, as persons not sufficiently mature to protect their own rights. Their property, often very large, is held and administered for them ; in most of the agencies they receive rations, practically distributed by the government ; and they have government schools. For these purposes, Congress appropriates about ^7,000,000 annually. An exceptional status is found in the Indian Territory, in- habited by the so-called " five civilized tribes," the Chero- kees, Creeks, Choctaws, Chickasaws, and Seminoles, 85,000 in number. Many of them are well-to-do, have good houses, and maintain tolerable schools. They are very strenuous against holding land in severalty, because their tribal lands amount to about 20,000,000 acres, or about 250 acres for every man, woman, and child. Much is tilled as farm land ; other large areas are valuable for grazing ; and considerable tracts are underlaid by coal and other minerals. Notwith- standing the principle that the white people are not to live on Indian reservations, about 200,000 whites live in the Territory ; although they cannot legally acquire title to a single acre of land, considerable towns have grown up in the heart of the Indian country by so-called "leases," frequently not author- ized by the government. In addition, there are large trust funds, the proceeds of previous land sales, held in Washington §i6s] Status of Indians. 363 for the benefit of the Indians. This state of things cannot last much longer : it is probable that these Indians will soon be compelled to accept small areas of land in severalty, and that the rest of their land will be distributed among the white people. The property of these Indian tribes is so large that white people who have married Indians have sometimes sought to get themselves enrolled as members of the tribe and sharers in the common benefits. It will thus be seen that there are three very distinct classes of Indians: (i) Those who have left their tribes and settled down. These include some of the remnants of the colonial coast tribes; as the Marshpee Indians on Cape Cod, the Gay Head Indians on Martha's Vineyard, remnants of the Iroquois in New York, and a few Seminoles in Florida ; but the mass of citizen-Indians are those who recently settled in severalty, almost all of them on farms. (2) The tribal Indians on the reservations, which were not large enough to support the In- dians by hunting, and are diminishing in area. Unless these Indians can make a living by farming, which is not com- mon, they must be fed by the government or they will starve. (3) The civilized tribes in the Indian Territory, and also the Navajos, Maquis, Zunis, and other Indians in New Mexico and Arizona, who are intelligent and capable of taking care of themselves, and who have valuable tribal lands and other property. Some of them by the treaty of 1848 with Mexico are citizens. The purpose of the government is to bring all the Indians to a self-supporting citizenship basis, but it is plain that the weaker ones will have to be supported by the government for a long time to come. What the Indians need is first of all a code of Indian laws administered by special courts. Then, too, many of the Indians who cannot become successful farm- ers can be useful as cowboys and ranchmen, and the govern- ment ought to encourage their raising stock. Twenty years ago, some progress was made in enrolling the Indians as soldiers ; but the system broke down, not because they were 3^4 Territories and Colonies. [§ 1 66 not brave, efficient, and disciplined, but because they would not consent to remain indefinitely away from their families. The following table does not include Alaska : — Tribal Indians. Other (taxed) Indians. Congressional Appropriation. i860 1870 1880 1890 1900 295,400 287,981 240,136 189,447 129,982 44,021 25.731 66,407 58,806 107,706 $1,683,419 4,927,980 4,713.179 5.455.413 7,108,406 166. Organized Territories and Dependencies. The next form of exclusive jurisdiction is the so-called " ter- ritories." The only clause of the constitution on the subject is that Congress shall have power to " make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." Upon its face, this would seem to refer to ownership rather than to jurisdiction ; but in 1789 Congress had already passed two ordinances for the government of the Western country, and presumably was ex- pected to administer the inchoate states. The promise of statehood expressed in the votes of Congress in 1780, 1784, and 1787 does not reappear in the constitution. The first national legislation for the territories was the Ordinance of April 23, 1784, which promised that Congress would establish temporary governments, and later state gov- ernments, provided the communities should be republican and should remain subject to the Articles of Confederation. The Northwest Ordinance of 1787 was still more detailed. It pro- vided for two successive forms of territorial government : — (i) A governor and three judges were to be the legislature. (2) When there were 5,000 free men in the territory, they were authorized to set up a legislature, the upper house to be appointed by Congress, the lower house to be elective. This § 1 66] Territories. 365 form of government also contained the famous " Compact," which set forth that in the Northwestern Territory there should be freedom of religious worship and sentiment, habeas corpus, trial by jury, fair judicial process, and good faith toward the Indians ; schools and means of education should thereafter be encouraged ; and slavery should not be further introduced. This Northwest Ordinance was practically the foundation of the later territorial governments ; it was confirmed by the new Congress in 1789, and substantially reenacted for the territory south of the Ohio River in 1790. Most of the terri- tories have gone through two stages of government, — first by an appointive council, and later by an elective body ; in all cases statutes passed by the territorial legislature have been subject to the governor's veto, absolute or suspensive ; and Congress always could, and sometimes did, annul territorial laws. The only regions within the continental block of the United States which have never been territories of the United States are the thirteen original states, including Vermont, Kentucky, and West Virginia; and Texas and California, which were admitted without any preliminary territorial government. At present there are but three communities having governments of the ordinary territorial type : New Mexico, Arizona, and the Hawaiian Islands. The governors of the territories, appointed for terms of four years, have frequently been sent out from the Eastern states ; of late years it has become more common to appoint residents of the territories. There is also in each territory a secretary, a treasurer, an auditor, and often a superintendent of public instruction, all appointed by the president and confirmed by the Senate. In addition there is a body of territorial judges, appointed by the president for four years ; strictly speaking, these are not "judges of the United States," but are appointed as a part of the general system for the care of territorial governments, and may be removed by the president for rea- sons which seem good to him. 366 Territories and Colonies. [§ 166 The territorial legislature makes laws for the territory, and also creates local and municipal governments with power to make local ordinances. Every territory sends an elected delegate to Congress, who has the salary and most privi- leges of members, except the right to vote. The interest of the people of the territories in their government is smaller than that of the people of the states, because they have less control ; but the territorial system is an excellent preparation for future statehood. The expenses of the territorial govern- ments, about ^200,000 a year, are borne by Congress. The territorial legislatures have power to establish corpora- tions for public purposes, but there are many limitations on that authority. They may authorize the laying of taxes for local purposes, but cannot assess general territorial taxes. Territorial or local debts may be incurred, and taxes for paying such debts may be laid, only by the permission of Congress. National control over the territories is exercised partly by provisions in the statutes creating the territories, or by new legislation ; partly by appeals from territorial courts to federal courts ; and partly by the power of the president to remove territorial officers. The most striking instance of the disal- lowance of a territorial statute by Congress is the annulment, in 1887, of the laws of Utah relating to polygamy, and the dissolution of the corporation of the Church of Jesus Christ of Latter Day Saints, which had an old territorial charter; and the farthest point of control by Congress was reached when, by the same act. Congress provided for the confiscation of the property of the Church and its application to public education in the territory of Utah. Territorial governments may be terminated in one of two ways : either by withdrawing the government altogether, as in Missouri Territory from 1820 to 1854 ; or by admitting the territory as a state, in which case the old territorial laws con- tinue in force until altered by the new state government. In the early Western territories, the organizing force was men of Anglo-Saxon stock, emigrants from the Eastern com- § i66] Dependencies. 367 munities. A new problem was presented in 1803, when Louisiana became a territory, with a French and Catholic population, a different system of laws, and a total lack of ex- perience of representative government ; the new community protested so strongly against the appointive legislature created in 1804 that in 1805 it received a representative legislature. The Floridas had a small population when annexed, and within a few years Anglo-Saxons arrived in^ sufficient numbers to take possession of the government. Texas had been organized by settlers from the United States long before it was annexed. California had less than 300 Americans when it was annexed in 1848, but the discovery of gold speedily brought an Ameri- can and European population, which organized a state govern- ment ; it never was a territory. New Mexico and Arizona to this day have many Mexicans ; in these communities it has been found hard to organize a government on the American pattern. The conditions were different in the three annexations of 1898, — the Hawaiian Islands, Porto Rico, and the Philip- pine Islands. The Hawaiian Islands contain about 35,000 natives, 26,000 Chinese, 61,000 Japanese, 13,000 Europeans, and about 20,000 Americans and their descendants. The ter- ritorial government established by Congress in 1899 was of the usual type, with an elective legislature and ah appointive governor of American descent resident on the islands ; but it has been found hard to make the system work with a mixed population. Porto Rico, the whole population of which is a civilized people, received in 1900 a special and unusual terri- torial government, in which the upper house of the legislature contains a majority of appointive members ; the governor is appointed by the president, and sent out from Washington. The government of the Philippine Islands presents more difficulties, because they contain a large civilized population, and also a large element of natives of various degrees of savagery ; and because, from the occupation of Manila in 1898 down to 1902, an insurrection was continuously going on. 368 Territories and Colonies. [§ 166 For the government of the Philippines, Congress on March 2, 1 90 1, adopted the unusual, though not unexampled, method of authorizing the president to establish such a form of govern- ment as he saw fit; but on July i, 1902, a thorough detailed territorial government was established, headed by an executive commission. There is provision for future representation of the people, and they already take part in the local govern- ments so far as they show capacity. At present there are three very distinct types of legally- organized territorial governments: — (i) That enjoyed by nearly all the territories from 1787 down, with a representa- tive territorial assembly and with considerable powers to make laws. There are now four such territories, — New Mexico, Arizona, Oklahoma, and Hawaii. (2) The form applied to the Northwest Territory, in which one branch of the legisla- ture is appointive, thus giving the president indirect power to prevent legislation which he thinks unwise. Porto Rico is at present the only example. (3) Areas in which the people have no part in choosing their legislatures, and therefore no self-government in general matters, although local self-govern- ments may be set up. This is the type of Alaska and the Philippines. All these types of government are created by act of Congress, may be altered by act of Congress, and have no other authority than such as Congress chooses to confer upon them. In any other country such governments would be called " colonial." Indeed, the present government of Oklahoma strikingly resembles the government of New York before the Revolution : an appointive governor ; judges appointed directly or indirectly by the crown ; an elective assembly subject to the governor's veto ; acts passed and approved by the gov- ernor, subject to reversal by the home government ; appeals allowed from the decisions of the judges to a court of the general government. In truth,, the territories are and ever have been colonies, the main difference from the English colonies being the expectation that the territories would § 167] Unorganized Dependencies. 369 eventually become states ; but Montana was nearly ninety years in the territorial condition before it was admitted into the Union, and New Mexico with a considerable population has remained a territory from 1850 to 1903. 167. Unorganized Dependencies. The next group of regions subject to the exclusive jurisdic- tion of the United States is territory which has become a part of the Union but has received no organized government, and the people of which have not a completely-defined body of rights. To make this subject plain, the various steps in acquiring authority over new territory must be noticed. (i) During a military campaign outside our boundaries, the commanding general exercises governmental authority over all the territory within his lines, as a part of his power to make war. For instance, in the Mexican War, General Scott laid and collected customs duties and internal taxes in Mexico ; and in 1899 General Wood laid taxes in Cuba. Such acts hold good till the region thus occupied becomes vested in the United States by a treaty of peace. (2) After cession by a treaty, before Congress has taken any action, to some degree the acts of the previous military government are continued in force provisionally ; but no tax can be laid except by Congress. When in 1899 the president authorized a special tariff for Porto Rico, the Supreme Court decided that nobody but Congress could levy or authorize the levying of taxes in such annexed territory. (3) Congress may pass temporary acts for the government of territories and may define their powers. The precedents cited above show that Congress has often enacted such laws, — as, for instance, the act of March 3, 1901, authorizing the president to estabUsh a civil government in the Philippines. (4) Do the previous general statutes of the United States apply to the new regions as soon as they are annexed? Since, under the theory of the American government, no community except a state has a right to create a government for itself, 34 370 Territories and Colonies. [§ 167 what is the situation of the annexed people ? After the ratifi- cation of the treaty of 1803, and before Congress had passed any statute, — that is, for about a year, — Louisiana remained in an unorganized condition. On October 31, 1803, Congress authorized the president to take possession of the territory, and to administer it until Congress should act ; on March 26, 1804, the first form of government for Louisiana was created, with an appointive council; and on March 2, 1805, the normal territorial representative government was established. So in 1 82 1 Congress authorized the president to take posses- sion of Florida ; he deputed Andrew Jackson as governor, and endowed him with all the authority previously exercised by the Spanish captain general, till a regular territorial govern- ment was organized. From 1846 to 1848 Oregon remained without a territorial government. California was acquired in 1846, and during the war was administered by a military gov- ernor ; in 1848 it became a part of the Union, but no terri- torial government was ever organized, and two years later it was admitted as a state. Alaska was annexed in 1867, and was made a customs district in 1868; in 1884 Congress authorized a governor and a district court, and enacted that the laws of the state of Oregon should be the laws of the district of Alaska so far as applicable; in 1899-1900, better regula- tions for government were adopted and also civil and criminal codes; but it never has had a regular organized territorial government. The basis of these precedents, which do not always agree with each other, must be found in one or another of two colonial theories. (i) The first theory is that, the moment a treaty is ratified, the people of the territory are thereby completely incorporated into the United States, so that every law passed in general terms applies to them : they come within the customs bound- aries and are subject to the same rate of import duties as residents of the states, and are entitled to unrestricted trade between the different parts of the United States ; above all, the people of such regions become subject to all the privileges § 167] Unorganized Dependencies. 371 of freedom embodied in the constitution, sucli as trial by jury, habeas corpus, indictment by grand jury, counsel in criminal cases, and the right to keep and bear arms. This theory of incorporation is subject to two practical difficulties, not felt when Louisiana or Oregon or even Alaska was annexed, because these territories were all in North America, and because at the time of annexation the number of people concerned was small, (a) The principle would require the collection of import duties on the same scale in Porto Rico and the Philippines as in New York or Cali- fornia, a system which might not be to the interest of either the continental or the insular United States, (fi) The Amer- ican and English system of judicial rights is not in accordance with Spanish law, nor is it adapted to people of imperfect civilization, or to a community in which there are people of very different grades of civilization. (2) A rival theory is that, when territory is annexed, it ceases to be foreign territory but does not become complete domestic territory, — that, until Congress acts, it is in a mid- way status ; hence that, although duties cannot be collected under the regular legal tariff" on foreign imports from Porto Rico into New York (because Porto Rico is not foreign), yet Congress may specifically extend the regular tariff to the annexed territory, or may provide a special rate of duty on importations from the dependency into the states (as from Porto Rico into New York), or may provide a special tariff on imports into the dependency from a foreign territory. This theory was upheld and the discretionary power of Congress over the tariff in the dependencies was approved by a majority of the Supreme Court in its famous decision in the Insular cases in 1901. The judges said that it was in the power of Congress to decide when territory was completely incorporated ; and that, when new territory came into the Union, Congress might make for it a set of laws (including tax laws) different from the laws applying to that part of the 3/2 Territories and Colonies. [§ 167 Union organized as states. The court did not distinctly pass on the question whether the people of the dependencies have all the personal rights guaranteed by the constitution, content- ing itself with holding that such clauses of the constitution as are " applicable " apply to the dependencies. In accordance with these decisions, the president by proc- lamation, on July 25, 1902 (the conditions imposed by the act of Congress of April 12, 1900, having been fulfilled), formally brought the island of Porto Rico within the customs boundary, and then gave it entire freedom of trade to and from the states; but Congress, on March 8, 1902, made a special scale of duties on importations from the Philippines into the continental United States and vice versa, and a special tariff on importations into the Philippines from foreign coun- tries. On the question of personal rights, it enacted on July i, 1902, that the constitution, excepting the clauses for a jury trial and the right to keep and bear arms, should apply to the Filipinos. The reasoning of the Supreme Court would seem to make a fundamental difference between the people and governments of that part of the Union organized as states and the people and governments of other parts of the federal union. It places the present dependencies upon the following prin- ciples : — (i) When territory has been admitted as a state, its people have all the guaranties expressed in the constitution, and are subject to all the general acts of Congress. (2) For regions outside the states, Congress has the right to create such forms of government as it sees fit ; but in practice it creates representative government, except where it believes true rep- resentation cannot be obtained ; and all such governments are subject to alteration or control by Congress. (3) Congress may adopt a special tax system for such regions. (4) Con- gress decides when new territories shall be incorporated into the Union, and may by statute declare that the people of a particular territory, or of the territories altogether, are entitled to certain specific constitutional rights. When an act of this § i68] Dependencies. 373 kind is once passed, it would seem that it is not in the power of Congress to repeal it. In avoiding one series of difficulties, the courts have created another : up to 1901 it had been supposed that the general laws of Congress applied also to the District of Columbia and the terri- tories ; but if Congress may make a special tariff for Porto Rico, why may it not make one for New Mexico or for the District ? Although in principle there seems to be no difference be- tween the power of Congress over the so-called " organized territories " and the unorganized dependencies, yet in practice it has set up for the " territories " a government with a rep- resentative assembly and a degree of personal rights not less than that in the states ; and for the " dependencies " a govern- ment with appointive assemblies, or parts of assemblies, in which the people have not yet received all the personal rights guaranteed by the constitution. The status of our dependen- cies therefore seems to be almost exactly that of the American colonies just before the Revolution, when Parliament undertook to annul charters and to prevent the elective assemblies from meeting. Through its system of territories, and of special dependencies separated from the continent of North America by seas or broad oceans, the United States has taken a posi- tion in the world like that of other colonizing powers, such as England, France, Germany, and Portugal. The ground for the difference in government between the self-governing terri- tories and the dependencies is substantially the belief of the American people that the latter are not yet fitted to be trusted with their own government ; but in both Porto Rico and the Philippines it is hoped to create local governments, under the supervision of the territorial officers, which shall permit the participation of the people and lead to more complete local self-government. 168. Protectorates. Like other colonizing nations, the United States has some protectorates, — that is, countries not in any sense within our 374 Territories and Colonies. [§ i68 boundaries, yet so far under our influence that they are not completely independent, (i) The first of these is Liberia, founded on the coast of Africa by the American Colonization Society in 1820, under the virtual protection of the United States. The United States sends a minister to Liberia ; and it has always been understood that no other power would be permitted to annex or seriously to molest it. (2) Something very like a protectorate was exercised over the Hawaiian Islands, into which American emigrants went about 1820. Everybody understood for years that the United States would not permit any other power to annex or to ad- minister Hawaii, and at various times, as for instance in 1852 and in 1893, attempts were made to annex it to the United States. (3) From 1836 to 1845, by its very intimate relations with Texas, the United States practically exercised a protectorate over that nominally independent republic. (4) From about 1882 to 1899 the United States was one of three powers to exercise a protectorate over the nominally in- dependent government of the Samoan Islands, since divided among the three powers, Great Britain, Germany, and the United States. (5) A curious kind of protectorate was exercised over Cuba from 1823 to 1898: the United States many times asserted the principle that no foreign power should be allowed to take Cuba from Spain, and even went so far as to promise Spain the protection of our fleet if needed. (6) A distinct Cuban protectorate was established in 1898, when the United States sent an army to Cuba and compelled Spain to accept a treaty, ratified in February, 1899, by which Spain withdrew from Cuba but did not transfer it to the United States. For more than three years longer the United States remained in Cuba and kept up a military government. On April 18, 1898, just previous to the declaration of war, both houses of Congress united in a resolution that the people of Cuba *'are and of right ought to be free and independent," § 1 68] Protectorates. 375 and that the United States would leave the government and control of the island to its people. Hence the president aided the Cubans in framing a new constitution ; but Congress laid down as a condition of our approval that in their new consti- tution the Cubans insert a promise not to enter into foreign relations without the consent of the American government, and to assign to the United States naval stations on the coast of Cuba. The relations between the two countries are such that the United States is bound to intervene to prevent any foreign aggressions, and is practically so far responsible for the con- tinuance of good order in Cuba that it must intervene in case civil war should again break out in the island. (7) An opportunity to exercise a somewhat similar protec- tion in China arose in 1900, when there was a joint expedi- tion of the Western powers up to Pekin to rescue the diplomats and missionaries who were there besieged. The United States distinctly set itself against a suggestion that the different pow- ers should each take a piece of the Chinese territory, and was the main instrument in securing a settlement by which, on receipt of a money indemnity for their losses and expenses, the Western powers should withdraw their troops. (8) In practice the United States exercises something like a protectorate over Mexico, not formally through the govern- ment, but by the influence of American capital there, which practically requires a guaranty from the Mexican government that good order shall be maintained and that property shall be respected. Should civil war break out in Mexico, it is prob- able that the United States would make a vigorous protest in defence of the property of its citizens. (9) Two treaties have recognized the special protection of the United States over isthmus transit. The treaty of 1846 with the United States of Colombia agreed to guarantee to that country the possession of the Isthmus of Panama, and to maintain order on any land or water communication across the Isthmus; under this partial protectorate, troops have been repeatedly landed to protect the terminals and the line 376 Territories and Colonies. [§ 169 of the Panama railroad. The Clayton-Bulwer treaty of 1850 asserted a joint guaranty of any isthmus canal by Great Britain and the United States ; but it was formally rescinded, with the consent of Great Britain, in 1902. Negotiations thereupon began with the United States of Colombia as pro- prietor of the Isthmus of Panama, and with Nicaragua as proprietor of the Nicaragua Canal route, for possession of a strip ten miles wide extending from ocean to ocean, with the right to police and protect it. Such a relation would make of either canal route a protectorate, if not a dependency ; and in keeping order over the canal the United States would be nearly certain to feel a responsibihty for keeping order also in the adjacent country. The territory between the canal and the present southern boundary of the United States would also come into a similar relation with the United States ; for no other country could possibly be allowed to take it or seriously to affect its destiny. 169. The Monroe Doctrine. A further form of territorial influence outside the acknowl- edged boundaries of the United States is the principle of special and paramount interest in American questions, to some phases of which the term " Monroe Doctrine" is now applied. The original Monroe Doctrine, drafted by John Quincy Adams and inserted in the president's message of 1823, was a protest against two things : the attempt of Russia to occupy the Northwest coast, on the assumption that it was possessed by no other civilized power ; and the attempt of France, in behalf of a European coalition, to interfere in Central and South America with the purpose of compeUing the Spanish colonies to return to their allegiance to Spain. The first point of the Monroe Doctrine was that the whole continent of North America was already either occupied or claimed by other powers, and hence was not subject to further new colonization. This declaration against European intervention in America caused the plan to be dropped, and the only case § 169] Monroe Doctrine. 377 of such intervention since that time was that of the French in Mexico in 1860-67. The Monroe declaration asserted a special interest of the United States in neighboring American countries ; and hence, when other kinds of questions arose with regard to our American neighbors, it was thought useful to give the name Monroe Doctrine to protests really based on new reasons. Thus in December, 1845, President Polk said that the Monroe Doctrine included the principle of a balance of power in America; and in 1848 he declared that the Monroe Doctrine forbade any part of North America voluntarily to transfer itself to a European power. The real principles of the Monroe Doctrine were put to the test in 1 86 1, when a French army, taking advantage of the complications of the Civil War, invaded Mexico and set up a monarchical government supported by French bayonets, for the express purpose of impairing the influence of the United States in America. Secretary Seward nowhere distinctly re- ferred to the Monroe Doctrine as his authority, but steadily protested with increasing force, till in 1867 Napoleon III took the warning and evacuated Mexico. President Johnson repeatedly referred to the Monroe Doctrine, and in 1868 in- sisted that we must annex some of the West India Islands in order to maintain it; and President Grant took the same ground with reference to the annexation of San Domingo. About 1880 arose to magnitude a new American question, political and territorial, — namely, the question of an inter- oceanic canal across the American isthmus. Secretary Evarts in 1880, Secretary Blaine in 1881, Secretary Frelinghuysen in 1882, all insisted that the Monroe Doctrine gave the United States sole right to control such a canal, because the participa- tion of European powers in such control would be an applica- tion of the European political system to America. This rather far-fetched doctrine did not prevent the actual beginning of a canal across the Isthmus of Panama by a French engineer ; but the failure of the company in 1889, before the canal was 378 Territories and Colonies. [§ 17° half finished, again brought up the question of the special interest of the country in that canal, and in 1902 the United States asserted undisputed authority to build, maintain, and police such a waterway. In 1895 Secretary Olney and President Cleveland declared that the Monroe Doctrine extended to a boundary controversy between England and Venezuela, and urged that the Doc- trine contemplated the extinction of all European colonies in America. This was not Monroe's meaning ; and England in correspondence insisted that through her colonies Great Britain was also an important American power. The English posses- sions, however, are for the most part so distant from Central America, from the canal, and from South America that the United States must always be the main political force in that part of America. In 1901-02 President Roosevelt and Secretary Hay came to an understanding with the German government that the Germans would attempt to make no national settlements in South America; and it is plain that there will be no further attempt to annex any part of Central or South z\merica to any European power. To that extent the United States pro- tects the country south of it, without, however, taking any responsibility for good or bad government in the neighboring American countries. In 1903 the United States made no pro- test against an armed demonstration and blockade by Ger- many, Italy, and England against Venezuela, in order to secure the adjustment of claims for injuries to the person and property of their citizens. 170. Colonial Problems. The great extension of the territory of the United States since 1898 brings the country into new relations with the world, and a few of the main difficulties of the position may here be stated. (i) By our possession of distant colonies having language, religion, customs, and problems unfamiliar to Americans, we § i7°] Colonial Problems. . 379 have taken up the position of a colonizing nation. Until 1898 we could point out the faults of the English in South Africa, of the French in Cochin China, of the Germans in East Africa, of the Spanish in Cuba ; but Americans now understand that, in dealing by military power with an alien and distrustful people at a great distance, insurrection, brigandage, and cruelty of both races will break out in spite of efforts to pre- vent them. (2) The annexation of an island in the West Indies, and of a group in the South Pacific, is evidence of an intention to take part in the development of the world's commerce both West and East. The main advantage of the Philippines is to give the Americans a point of vantage for the enormous trade which is expected to open up in Eastern Asia. (3) The possession of colonies brings about many unfore- seen complications in the government of the home country : we have one set of political principles for the people living in the states, another for the people living in organized terri- tories, and another for the people living in dependencies. This is hard to reconcile with the belief of our forefathers that the great principles of the Declaration of Independence applied to all free people in all times, (4) The administration of so many different kinds of terri- tory is difficult, because it must include questions of taxation and of the regulation of trade. Goods may be sent from New York to any other state in the Union, and also to Porto Rico and Hawaii, without paying duties ; but goods sent from Cali- fornia or Hawaii to the Philippines pay special duties on arrival in those countries ; in like manner, imports from the Philip- pines into the United States, if the growth and product of the islands, pay three fourths the regular tariff duties. This neces- sary distinction produces friction and heart-burnings ; it also involves the passing of laws to protect American industries against other American industries, — that is, against the labor and manufactures of our own dependencies. On the other side, it involves taxing those dependencies for the benefit of 38o Territories and Colonies. [§ 170 trade with the home country, yet such discriminations are exactly what our ancestors protested against in the Revolu- tionary War. (5) Another colonial problem is that of providing a proper civil service for those remote regions. The United States has exercised great care and discretion in the appointment of governors, both for the Philippines and for Porto Rico, and has provided an admirable subordinate service. Unless such a service is kept tip, misgovernment and misery must inevitably follow. Part VII. Financial Functions. CHAPTER XXI. TAXATION. 171. References. Bibliography: D. R. Dewey, Financial Hist, of the U. S. (1915), Introduction and ch. headings; W. B. Munro, Bibl. of Municipal Govt. (1915), §§ 71-73; Macy and Gannaway, Comparative Free Govt., 721, 722 (cases); Cyclop, of Am. Govt. (1914), I, 86, 89, 476; II, 48; III, 214, 471, 476, 481, 493, 495, 505, 507; A. B. Hart, Manual (1908), §§ 117, 118, 220, 221; E. McClain, Constitutional Law (1910), § 68. Finances in General: H. C. Adams, Science of Finance (1899); J. Bryce, Am. Commonwealth (ed. 1910), I, chs. xvii, xliii; D. R. Dewey, Financial Hist. (1915); A. D. Noyes, Forty Years of Am. Finance (1909); E. McCIain, Coiistitutional Law (1910), §§ 69-79; R- L. Ashley, Am. Federal State (1911), ch. xxv; C. A. Beard, Am. City Govt. (1912), ch. v; C. C. Plehn, Govt. Finance (1915); J. R. Tucker, Constitution (1899), I, 456-518; W. W. Willoughby, Constitutional Law (1910), I, ch. xli; II, ch. xlix; T. M. Cooley, Constitutional Law (3d ed., 1898), ch. iv, § i; C. A. Beard, Readings in Am. Govt. (1909), chs. xviii, xxxi; J. M. Mathews, Principles of Am. State Administration, chs. x, :i; W. M. Daniels, Elements of Public Finance (1899); W. B. Munro, Municipal Administration (1916), ch. x; C. P. Huse, Financial History of Boston (1916); statistics, in Tribune Almanac, World Almanac, American Year Book, Statistical Abstract. — Periodicals: The Nation; Bradstreet's; The Economist; Qtiar. Journal of Economics; Pol. Sci. Quar.; Annals of the Am. Academy of Political and Social Science; Journal of Political Econ- omy; Yale Review; National Municipal League, annual Proceedings; Commercial and Financial Chronicle. Forms of Taxation: E. R. A. Sehgman, Essays in Taxation (1913), chs. i, viii, xi; E. R. A. Seligman, Economics (6th ed., 1914), § "5; Indus- 381 382 Taxation. [§171 trial Commission, Reports (1900-1902), XI; XIX, 1014-1070; J. F. Dillon, Municipal Corporations (sth ed., 191 1), IV, chs. xxvii, xxviii; T. M. Cooley, Law of Taxation (3d ed., 1903); T. M. Cooley, Con- stitutional Limitations (7th ed., 1903), ch. xiv; J. Bryce, Am. Com- monwealth (ed. 1910), I, ch. xliii; C. W. Eliot, Am. Contributions to Civilization (1897), Nos. 13, 14; H. George, Progress and Poverty (1879)," bk. viii, chs. iii, iv; R. T. Ely, Taxation in Am. States and Cities (1888); D.M. Means, Methods of Taxation {igii); C. C. Vlehn, Public Finance (3d ed., 1909), pt. ii; Cyclop, of Am. Govt. (1914), Arts, on Corpo- rations, Taxes on; Franchise Tax; Revenue, Internal; Revenue, Public, Collection of; Tax Commissioner and Commissions; Tax, Income; Tax, Inheritance; Tax, Land and Real Estate; Tax, Property, General; Tax, Property, Personal; Tax, Single; Taxation, Constitutional Basis; Taxation, Exemptions from; Taxation, Limitations on; Taxation, Mortgage; Taxation of Exports; Taxation of Railroads; Taxation of Raw Materials; Taxation, Principles of; Taxation, Subjects of; Taxes, Direct; J. A. Hill, Civil War Income Tax {Quar. Journal of Economics, VIII, 416-452, 491-498, 1894); C. J. Bullock, Direct Taxes under the Constitution {Pol. Sci. Quar., XV, 217-239, 452-481, 1900); F. L. Olmsted, Tobacco Tax {Quar. Journal of Economics, V, 193-219, 262, 1891); H. C. Bannard, Oleomargarine Law {Pol. Sci. Quar., II, 545- 557, 1887); F. W. Taussig, War Tax Act of igi^ {Quar. Journal of Economics, XXXII, i, 1917); C. J. Bullock, Massachusetts Income Tax {Ibid., XXXII, 525, 1918); D. A. WeUs, Theory and Practice of Taxa- tion (1900), chs. i, xii; International Tax Assoc, Third International Conference on State and Local Taxation (1910); J. H. 'HoMa.ndex , Studies in State Taxation (1900); C. J. Bullock, Introduction to the Study of Economics (1900), 514-551; J. A. Fairlie, Taxation and Revenue System of Illinois (1910), chs. i, viii, x; F. C. Howe, Taxation under the Inter- nal Revenue System (1896); A. N. Young, Single Tax Movement (1916); J. A. Hill, Income Tax of 191 3 {Quar. Journal of Economics, XXVIII, 46, 19 1 3). Assessment and Collection of Taxes: T. M. Cooley, Con- stitutional Limitations (7th ed., 1903), ch. xiv; T. M. Cooley, Law of Taxation (3d ed., 1903), ch. xii; N. Matthews, Double Taxation {Quar. Journal of Economics, IV, 339-345, 1890); H. L. Lutz, State Tax Commission (1918); Cyclop, of Am. Govt. (1914), Arts, on Assessed Valuations, Comparative; Assessment of Taxes, National, State, and Municipal; T. N. Carver, Ohio Inquisitor Tax Law (Am. Econ. Assoc, Economic Studies, III, No. 3, 1898); J. A. Fairlie, Taxation and Revenue System of Illinois (1910), chs. ii-vii, ix; C. H. Hamilton, Law of Taxa- tion by Special Assessments (1907). Customs Duties and Protection: W. Hill, Colonial Tarifs {Quar. Journal of Economics, VII, 78-100, 1892); M. E. Kelley, Tariff Acts under the Confederation {Qiiar. Journal of Economics, II, 473-481, § 172] Land Taxes. 383 1888); W. Hill, First Stages of the Tariff Policy (Am. Econ. Assoc, Publications, VIII, No. 6, 1893); A. Shaw, Political Problems (1907), ch. ix; O. L. Elliott, Tariff Controversy (1892); D. R. Dewey, Financial Hist. (1915), chs. viii, xi, xix, xx, xxi; A. B. Hart (ed.), American Nation (1904-1918), chapters in the successive volumes on the tariffs of 1789, 1816, 1824, 1828, 1832, 1833, 1846, 1857, 1861, 1883, 1890, 1894, 1897, 1909, 1913, see index vol.; E. Stanwood, Tariff Controversies (1903); F. W. Taussig, Tariff History (6th ed., 1914); S. B. Harding, Minimum Principle (Am. Acad. Pol. Sci., Annals, VI, 100-116, 1895); F. W. Taussig, Some Aspects of the Tariff Question (1915); I. M. Tarbell, Tariff in our Times (191 1); Cyclop, of Am. Govt. (1914), Arts, on Free Trade and Protection; Tariff Administration; Tariff Commissions; Tariff Legislation, Framing of; Tariff Policy of the U. S.; Tariff Rates; Tariff Reform; Tariff Statistics; T. B. Reed, Tariff and Business (North Am. Rev., CLVIII, 110-116, 1894); P. Ashley, Modern Tariff History (1910), pt. ii; Laughlin and Willis, Reciprocity (1903). — Sources: F. W. Taussig, State Papers and Speeches on the Tariff (1892); A. B. Hart, Contemporaries (1897-1901),' III, §§78, 130; IV, §§ 164, 166; Bogart and Thompson, Readings in Economic Hist. (1916), chs. X, xxi; G. S. Callender, Economic Hist, of U. S. (1909), ch. x; Secretary of the Treasury, Annual Report; Commissioner of Customs, Annual Report. 172. Land Ta:ses. Next in importance to territorial functions are the financial : without the expenditure of money no power requiring private lands, buildings, materials, stores, or land and naval forces, can be carried out. For all these outgoes, governments rely on four sources, — taxes, loans, fees, income from public prop- erty. The federal, state, and local governments have very little productive property, and the American theory of public debt is that it is something to be paid and extinguished; hence the usual reliance for the support of government is taxation. Taxation rests in the inherent principle that governments have a legal right, in return for the protection and good order which they afford, to take such part of the annual product of the country, by imposing taxes payable in money, as may be necessary for governmental purposes. So long as people all 384 Taxation. [§172 have about the same kind of property, — are all farmers, all artisans, or all sailors — it is not difficult to find a basis of taxation which will bear about equally on all the members in the community. In a complicated society like that of the United States, with many kinds of people and property, taxes are numerous and often inequitably distributed. The most obvious subject of taxation is land, or rather real estate, which is land and the permanent structures resting upon it ; in cities the buildings may be worth as much as the site, while the farm land far exceeds farm buildings in value. Throughout the United States, this is the main source of state and municipal revenue ; but there are many kinds of land, from barren mountains to corner lots in Wall Street, and the land tax is full of inequalities and variations. Fortunately, the problem is simplified by the fact that the federal govern- ment has rarely exercised its constitutional authority to tax land. Direct taxes were assessed upon land in 1798, 18 14, and 1 86 1, but under the constitution they had to be distrib- uted in proportion to population. Hence, for forty years there has been no federal land tax : it has been left to the states and municipalities, to which the land tax furnishes from three fourths to nine tenths of all their income. Land is visible property, and hence cannot escape the assessors ; land is valuable property, almost always finding a purchaser at some figure ; the value of land can be estimated from the occasional sales of neighboring property- land is the absolute condition of all human existence, since every family must have ground under its feet : the weight of a land tax is therefore more widely distributed than any other form of taxation ; and it is almqst sure of collection, because unpaid taxes are a first lien on the land. One of the changes most ardently demanded by some tax reformers is to throw the whole taxation upon land, partly because of the ease of assess- ment and collection, partly because it is hoped in this way to gain for the public some of the advantages of the rapid increase of real-estate values in crowded communities. § 173J On Personal Property. 385 173. Taxes on Personal Property. In addition to land taxes, every state and city levies a vari- 2ty of other taxes, the most common of which is the poll-tax, ranging from 30 cents in some states up to $3 in others. This is assessed on adult men ; unless they are holders of other property, it is difficult to collect, even when payment is made a prerequisite to voting. Personal-property taxes are assessed on visible personal effects, such as furniture, clothing, watches and jewelry, on machinery, animals, stocks of goods, ships, and other property not attached to land ; and also upon money in hand and upon paper evidences of property. Since thousands of millions of dollars in the United States are held in the form of paper obligations — public securities, mortgages, corporation stocks and bonds, — most of the states attempt to tax such posses- sions as part of the wealth of the holders. Unfortunately, in most cases they are only evidences of visible property, which is taxed where it lies : a land mortgage is practically a tem- porary part-ownership in a piece of real estate ; and railroad bonds simply represent the roadbed, stations, and rolling stock of the railroad, all of which are already subject to taxation. Such property is easy to conceal, and therefore hard to assess equitably, especially when the holders of securities feel that they are taxed double. Another personal tax is on incomes ; but few states make much use of their power to lay income taxes, although these exist in Massachusetts, Pennsylvania, Virginia, and North Carolina. The federal government has twice laid an income tax over the whole country : by acts of July 2, 1862, and June 30, 1863, 3 per cent was payable on all incomes exceeding ^600 a year and less than $10,000, 5 per cent on incomes of $10,000 and over, and 10 per cent on incomes above $10,000. It was always an unpopular tax: first, because it could be fairly assessed only by detailed and unwelcome inquiries into the business affairs of wealthy men ; secondly, because various 25 386 Taxation. [§ 173 deductions were allowed, — for instance, all state and local taxes; in the third place, because evasion was easy and hence the tax very unequal. In 1866 this tax produced $61,000,- 000; in 1867, ;^5 7,000,000. .The total proceeds were in ten years about $347,000,000, but this sum was paid chiefly by people in a few wealthy states. In 1872 the tax was repealed. In 1894 the so-called "Wilson-Gorman Tariff Bill " some- what reduced the tariff. To offset the loss of revenue, a second income tax was enacted, levying 2 per cent on the surplus of incomes above $4,000 ; receipts from interest on United States bonds and the salaries of United States officials were exempted. The act specifically included the net profits or incomes of most corporations, other than charitable and religious societies, savings banks, and insurance companies. Before this tax was fairly under way its constitutionality was attacked, although the similar income tax of 1S62 had been held valid by the Supreme Court. That court, in a decision of April 8, 1895 {^Pollock y. Farmers^ Loan and Trust Com- pany'), held unconstitutional that part of the act which taxed incomes from state, county, and municipal bonds, and incomes derived from real estate. The decision was based on the ground that a tax on the income from. state bonds was equiva- lent to a tax on the state ; it was influenced by the fact that state taxes on incomes from United States bonds had repeat- edly been held unconstitutional. A tax on rent was held to be equivalent to a tax on land, and hence to be a direct tax. The decision practically destroyed the unity and fairness of the act; and on May 20, 1895, on a rehearing, the court went still farther, and declared that a tax on income of any kind was a direct tax, which under the constitution must be assessed in proportion to the population of the state. Four judges dissented, but the act was invalidated ; hence, in case of future need, the United States will be unable to make use of a form of taxation very common in other countries, very § 174] License Taxes. 387 elastic, very productive, and successfully tested during the Civil War. Another form of property tax is the so-called " succession duty," a tax on legacies. It avoids most of the objections to an income tax ; for the value is easily ascertained, since prop- erty which passes by inheritance or by will is ordinarily trans- ferred through a probate court and is commonly inventoried and appraised ; hence no new or unusual inquiry into the amount of the property is necessary. The tax is also sub- tracted before the property comes into the hands of a new owner, who thus feels the sacrifice less. Succession taxes have been laid in nearly twenty states, usually with exemptions for property transferred to blood relatives, for small estates, and for charitable bequests. Perhaps the heaviest tax is that of Missouri, varying from 5 per cent to 7|- per cent, with very few exemptions. By act of June 13, 1898, a similar tax was levied by the United States, running as high as 15 per cent. It was soon held by the Supreme Court not to be a direct tax, and proved productive, especially as there was no exemption of charitable bequests. In states which already had collateral inherit- ance taxes, the double duty, federal and state, was in some cases one fifth of the whole property transferred. In 1902 the federal tax was repealed, leaving the state taxes as they were ; and duties collected on charitable, religious, and educational bequests were refunded. 174. Specific, Corporation, and License Taxes. Among the forms of state and municipal taxation is the cor- poration tax. This is sometimes laid on railroads and other corporations owning large amounts of real estate which is otherwise not sufficiently assessed ; but it is not suitable for corporations like banks and insurance companies, which have little real estate but do a profitable business. A favorite de- vice is to lay a lower tax on corporations chartered by a state than on " foreign corporations," a legal term which includes 388 Taxation. [§ 174 all corporations chartered by other states but doing business in the state concerned. This tax is ordinarily easy to collect ; for the names and holdings of the stockholders are bound to appear on the corporation books, and the tax may be paid in a lump and withheld out of dividends to the stockholders. Another form of taxation, best represented by the New York Corporation Tax of 1899, aims to tax the money value of franchises which have been given to corporations by states or municipalities. In many cases, traction companies have issued millions of bonds representing the earning value of their lines, — that is, they capitalize the free use of the streets. The theory of the New York law is that the fact of the company's receiving this valuable advantage without cost is no reason why it should also enjoy the privileges of freedom from taxes such as are laid on other kinds of value. Under the constitution, Congress has power to lay " direct taxes," provided they are proportioned among the states ac- cording to population. Five such taxes have actually been laid, — one in 1798, three during the war of 1812, and one in 1861 ; the first four acts made the assessment on slaves and land, the act of 1861 on land alone. In 1861 eleven states seceded from the Union and paid no part of the tax ; hence on March 2, 1891, Congress by statute refunded the $20,000,000 which had been paid by the remaining states. It seems unlikely that Congress will again resort to a system of taxation which bears hardest on the poorer states. Since 1789 the United States has levied a duty on the ton- nage of ships, which are also subject to tax by the states as property. This duty ranges now from 3 to 6 cents per ton for each entry into port, up to 15 or 30 cents per ton per annum; it produces only about $500,000 a year. A similar tax of 50 cents per ton for " light money " goes to the sup- port of lighthouses. A very common form of state and national taxation is for licenses to carry on specified occupations. In some states, hawkers, newsboys, and street musicians must be licensed; § 175] Direct and Corporation. 389 but the fee is small, and is intended only to keep the license- holder in bounds. Licenses are also required by auctioneers, insurance agents, brokers, commission merchants, inn-keepers, telephone companies, and many other occupations ; in Missouri, department stores are heavily taxed for licenses. The most common subject of a license tax is the manufacture and sale of liquors. 175. Assessment and Collection of Taxes. . It is easier to classify taxes than to collect them : one of the most serious problems of government is to find out what tax- able property exists, to state its value, and then to collect the tax that has been assessed ; and neither state nor nation is absolutely free as to either the object or the rate of taxation. The federal tax power is under serious limitations. The purpose of taxation is defined by a clause in the federal con- stitution that taxes may be laid " to pay the debts and to provide for the common defence and general welfare." Congress can- not tax state property, or (under the Pollock decision of 1895) tax incomes from state securities ; it cannot tax the property of local governments of any kind, because that is really state property ; it can lay "■ no tax or duty ... on articles exported from any state " ; and " all duties, imposts and excises shall be uniform throughout the United States." These export and uniformity clauses gave rise to the difficult questions as to the taxation of dependencies decided in the Insular cases of 1901 : the Supreme Court practically held that these two limitations did not apply except to regions organized as states in the Union. Many state constitutions prescribe that taxes shall be laid only for public purposes, or that the annual state or municipal tax rate shall not exceed a certain proportion of the whole private property : in Texas, for example, only one half of one per cent can be levied for state purposes. By the federal constitution, the states are forbidden to lay either import or export duties ; this means that they cannot lay any kind of discriminating taxes on imported goods as such. 390 Taxation. [§ 175 Whenever, as frequently happens, the state and nation tax the same thing, the United States always comes in first, if there be any dispute. Under Supreme Court decisions, the states cannot tax any national property or national securities, or the income from national securities or national banks, though they may tax bank property on the same footing as other property ; and they cannot lay any tax on commerce from one state to another, because Congress alone has power to " regulate com- merce . . . among the several states." One result of the various limitations on taxation is that it is practically impossible either for states or for the nation to levy any duties on the movement of persons and commodities from one state to another; hence nowhere in the world, except perhaps in the Russian empire, is there so large an area in which there is absolutely free trade unfettered by protective or revenue duties. The problem of discovering taxable property is often per- plexing. Real estate can hardly fail to be listed in any hon- est system of assessment. Occasionally backwoods farms, islands, or pockets of the mountains may escape notice ; but in the cities, where the valuable real estate for the most part lies, there are elaborate maps in which the parcels appear. It is' possible to assess property to the wrong person, but the remedy is easy : he may simply decline to pay the tax. The discovery of personal property is usually attempted by sending an elaborate list like that in the illustration, in which the owners of property of many different kinds are required under oath to set forth what they own. Furniture, books, per- sonal effects, stocks of goods, carriages and other vehicles, and draft animals, are not very difficult to find if assessors take sufficient pains. To discover the amount and whereabouts of evidences of property, — as notes of hand, mortgages, stocks and bonds, especially shares in corporations, — is extremely difficult, without such inquisitorial methods as are practically out of the question in a democracy. In practice it is found hard to get these descriptive lists back from tax-payers, and Auditor's Form No. I. SEE ASSESSORS' NOTICE ON THE BACK OF THIS SHEET. Before commencing to Till out this Schedule, read carefully the INSTROCTIONS TO PERSON LISTIHO, ana the EXTRACTS from the REVENUE LAW printed on the reverse of this Sheet. ,i Schedule of the nuTnbers, amounts, quantity and quality of all Personal Property in theposussion or under ihe control of belonging to _ _,_ on the first day of April, 1002y as listed by of the Town of. in the County of Cook, and State of lUinoiB. Toun School District-- T.- - Ji Village (or City) of- ^Q Be Filled b) Penon or Persons Requifed lo List Personal Property. E ^ z 4 5 j 6 ^J 1 S 1 3 Full Value (asdei«rn)lncd briseeseor). W. Full Fair 1 Qunlity and Quantity. DescrlpiioD, Memo- Cash Value randa as to Quality, Face Value, Etc. 1 ITEMS OF PROPERTY., taxed by 1 I 3 4 6 6 8 9 10 H 12 13 14 16 16 1 3 4 6 9 10 11 \n 14 ,15 lie 17 18 19 20 21 Horees of all ages, . . . . - Cattle of aU ages, Malesand ABsesof allages, . . • . Sheep of all ages, - - - - - Bogs of all ages, ..... Steam Engines including Boaers, - Fire or Eniglar-Proof Safes, . . . - Billiard, Pigeon-hole, Bagatelle, or other aimilar Tables Carriages and 'Wagous of whatsoever kind, Watches and Clocks, EeiTing or Knitting Machinet, . . - - Piano Fortes, .-.-.. Melodeons and Organs, . <> ■ • ■ Franchises, .--.-. AnnnitieB and BojaltieB, . - . . Patent Bights, .... Steamboats. Sailing Vesselfl, Wliarf Eoata, Barges or other Water Craft, . . - . - Merchandise on hand, .... Material and Manufactured Articles on hand. Manufacturers' Tools, Implements and MacMnery (other than Engines and Boilers, 'nhich are listed as such), - • - ... AgricTiltural Tools, Implements and Machinery, Gold and Silver Plate and Plated Ware, - ■ ■■■ " ~ , 1 Yearly Groaa Income, $ _ " 17 18 19 20 71 1 Eting It. U limit u p« Spieiil Slittmit 22 23 24 24 25 26 Moneys of Bank, Banker, Broker or Stock Jobber, Credits of Bank, Banker, Broker or fitock Jobber, Moneys of other than Bank, Banker, Broker or Stock Jobber, .... . . Credits of other than Bank, Banker, Broker or Stock Jobber, Bonds and Stocks, ..... Shares of Capital Stock of Companies and Associa- tions not Incorporated by the Laws of this State, Pawnbrokers' Property, .... Property of Companies and Corporationa other than hereinbefore enumerated, Bridge Property, - . . . . Property of Saloons and Eating Houses, • Household or OfBce Furniture and Property, - luTestments in Eeal Estate and Improvements thereon (see Sec. lOJ, Grain on hand Shares of Stock of State and National Banks All other Personal Property required to be listed Totals, :z:::z "" Face Value being $ - _.,.. Face Valne being $ Being Amount aa per Affidavit 26 27 28 29 30 31 52 33 34 36 35 2S 29 30 31 32 33 34 35 36 37 38 - — I do solemnly swear that the foregoing is a fall, complete and correct Schedule of all the personal property subject to taxation in the c town, city, village aad sehool district above mentioned, owned by me, or controlled by jne as agent for. en the first d»y of April, A. D. 1902. and which I am by law required to list; that the numbers, quantity, quality and amount of each item nc listed are correctly stated; that the values of the several items of property, as by me stated (in culumu ^'o. 2), :.ro tbe fuU fair cash v:dues of the samr OB I verily believe; that I have stated the full amount of my moneys and of my credits (less deductious aiiiLiorized bylaw), and that I have correotJ.v Plated the full fair cash values, and the face values, of all bonds, etocta and shares of capital stock in cotnpaiiies or aaaoclations not incorporated! by the laws of this State, by me owned or coutrolled. (See Sec. 20, Act Approved Feb. 25, 1896.) Subscribed and e AN ASSESSMENT BLANK § 175] Assessment. 391 in such cases assessors commonly estimate the amount of per- sonal property. In some states there is a penalty for failure to make return ; sometimes assessors are authorized to guess at the amount of property, and then to double their guess for the schedule. In either case the tax-payer feels no responsi- bility until the assessment reaches what he thinks an unreason- able point, when he usually enters protest ; hence it is not uncommon to keep raising the assessment of a man until he " squeals." The next great difficulty is properly to assess the value of property when discovered. Real estate is subject to great fluctuations both down and up : prosperous farms in New England have been abandoned ; city property in Chicago may go up from $ioo to ^1,000,000 an acre, but it is also subject to depreciation by movements of trade and fashion. Who shall estimate the changes of value ? The usual officials are the assessors of the towns or counties or cities. In most parts of the United States the assessorships are elec- tive offices, with tenures of one year, or at best three years, so that inexperienced men get in ; and the most skilful assessors will make mistakes. In some large cities, notably Chicago, the variations in real estate are often corruptly affected : some- times a wealthy holder of real estate pays an agent a fixed sum per year to keep his assessment down. Everywhere the small man, the owner of a little home, the farmer with a defi- nite number of acres, is likely to be relatively more heavily taxed than the wealthy man. Real estate is taxed where it lies ; but it is becoming more common for wealthy holders of stocks and bonds to diminish their taxes by acquiring residence where taxes are low, in country houses or estates. In Massachusetts, taxes are assessed on the first day of May, hence many people go away for the summer on the 30th of April. Another method of dodging personal taxes is by making temporary investments in govern- ment bonds, and then selling them out after the assessment has been made; or by putting property into the hands of 392 Taxation. [§ 17s trustees resident in other states under a low rate of taxation j or, more frequently, by simply ignoring the whole subject. The usual principle of assessment is that property shall be estimated at what it would bring in cash on a forced sale, which is commonly from one third to three fourths of the selling value which the owner would put upon it ; but in many places the assessed value is very near the purchase price of new property. Inasmuch as maiiy investors are glad to get 3 per cent net on investments, a tax of 2 per cent or 2^ per cent or 3 per cent on actual values must in the long run ruin the owners, and thus destroy taxable values and deprive the com- munity of one of the main incentives to saving. Ohio in 1885 enacted a system of tax inquisition which authorized two brothers to discover, in any way that they could, property which had escaped a sufficient assessment, they to have one quarter of all that they brought into the state treasury. This extraordinary system resulted in the discovery of some hundreds of thousands of dollars' worth of taxes that had been overlooked ; but it was widely believed that many delinquents came to terms by paying the inquisitors lump sums which did not get into the treasury. Small amounts of personal property are usually not taxable, and certain property owners are legally exempt from all taxes. In most states the real estate belonging to religious, educa- tional, and charitable institutions is free of tax ; and in some states invested funds belonging to such corporations are ex- empt. This is not a universal principle : in California all the colleges except the State University and Stanford University are or may be taxed ; in New Hampshire church buildings worth more than 1 10,000 are taxed. In some university cities, such as Ithaca, New Haven, and Cambridge, the amount of real estate thus exempt is considerable, and there is jealousy of the institutions of learning because they have the free bene- fit of streets and of police and fire protection. In Maine, the state appropriates certain sums to the towns in which colleges are situated, in recognition of this supposed loss. In Mas- § i7s] Collection. 393 sachusetts, the 194 towns which have no colleges show little disposition to tax themselves more highly in order to relieve the 6 unfortmiate places which have colleges in their midst. The work of assessors is entered upon a book commonly known as the "tax-duplicate," which should show not only the taxed property but also the exempted property. The rate of taxation is found by dividing the amount necessary to raise by the total of assessable property. There may be two, or even three or four, kinds of taxes in the duplicate. The state tax is commonly not more than ^ per cent to ^ per cent on the assessed valuation ; the town or city tax in some communities is as much as 2^ per cent on the valuation ; in addition, there may be county taxes, school taxes, and special assessments for sewers, waterworks, and other improvements. A peculiar form of tax is the so-called " betterment tax." If a new street is laid out, for instance, the real estate in the neighborhood may have assessed upon it a part of the cost in proportion to the supposed benefit. These sums are not strictly taxes, but for convenience are assessed and paid with the real taxes. The ordinary method is to have all these taxes combined in one annual bill, which is payable in either one or two instal- ments. This combined system sometimes makes very high rates of taxes: in Cleveland, for instance, in 1901, the tax rate was 3 per cent; in Boston a total of 1.6 per cent was thought extravagant ; and in some New England country towns the rate was as low as | per cent, or ^5 on the thousand. When tax bills are rendered, the next difficulty is to collect them. If proper care is taken, land taxes will be collected, through the wholesome system which makes taxes a first lien upon real estate, supplemented in most states by charges for interest after fixed days. Personal property, however, may change hands or be taken out of the state before any tax is collected ; and, unless the tax-payer is also a real-estate owner, he may move away and cannot be found. Delinquent 394 Taxation. [§ 176 taxes, therefore, accumulate wherever much reliance is placed upon personal taxes; and in some places officials let them run because they get special fees for the collection of de- linquencies. License taxes are paid at the time the licenses are taken out, and those who neglect this form of tax are subject to arrest for attempting to carry on a trade without the requisite permission. Federal tonnage taxes are laid on vessels in harbor, which cannot legally leave port till the taxes are paid. The direct tax on the states proved very slow of collection, and arrears kept dropping in for years after the tax had ceased. The most serious defects in the American tax system are as follows: — (i) The reliance on personal taxes, which never can be properly and impartially assessed. In repeated in- stances, a personal estate assessed at $1,000,000 or $2,000,000 has proved on the death of the holder to be subject to a suc- cession tax on $20,000,000 or $30,000,000. (2) The in- equality of assessment, which results partly from lack of a proper system of state assessors not subject to local influence, and partly from the inherent difficulty of knowing the real value of changeable property. (3) The multiplicity of state and local taxes, with the result that some callings and indi- viduals carry disproportionate loads of tax. The fair and thorough collection of taxes is always easier in the so-called " indirect " taxes on consumption. 176. History of the Tariff. Two forms of indirect tax, import duties and internal revenue, are the main sources of federal income. The import duties have been the more productive, and are also impor- tant because they involve protection to domestic industries. Within the colonies, small duties on imports were laid by the British government, and somewhat larger duties were laid by the colonies themselves. Immediately after the Revolution the states began to lay import duties each for itself; and two § 176] History of the Tariff. 395 constitutional amendments to the Articles of Confederation, intended to give Congress also power to lay liglit duties for national purposes, failed of ratification. Between 1783 and 1788 three states, Massachusetts, New York, and Pennsylva- nia, framed general tariffs intended to discriminate against the products not only of foreign countries but of other states. The result was confusion and interstate jealousy. The Federal Convention in 1787 completely withdrew from the states all control over import duties, except over inspection duties levied with the consent of Congress. From the begin- ning it was expected that this exclusive power of taxation would furnish the United States with the greater part of its revenue, and that expectation has been justified. In the first full year, 1792, the customs produced $3,500,000; in 1808, ;^ 1 6,000,000 ; in 1 8 16, just after the War of 181 2, $36,000,000, a figure which was not reached again till 1850; in 1866 the war tariff produced $179,000,000; in 1902 the customs paid $254,000,000, the highest amount in the whole history of the country in any one year. Customs tariffs are made by acts of Congress, although they may be modified by treaties duly ratified by a two-thirds vote of the Senate. Scores of acts have been passed on the assessment and collection of tariff duties and the organization of the customs service ; but the so-called " tariff acts " have been those which involved a complete revision of the previous classification and rates. The first of these statutes was the act of 1789, which was intended to be protective, although the highest rate of duty was not above 15 per cent. In 1816 a distinctly protective tariff was set up, intended to sustain the young manufactures, especially of cotton and wool. In 1824 the duties were somewhat increased. In 1828, under the so- called " tariff of abominations " the duties were raised to a hitherto unexampled height, reaching in some cases 45 per cent. In 1832 duties were somewhat reduced, but the tariff system was continued. This led to the Nullification contro- versy with South Carolina, and in 1833 the Compromise 39^ Taxation. [§176 Tariff provided for the gradual reduction of duties to a 20 per cent basis. In 1842 the tariff was increased for revenue pur- poses. In 1846 the lowest scale of duties was adopted that had been known since 1816, and these duties were a little lowered under a revision of 1857. Then set in a current of protection, resulting in the tariff of 1861, repeatedly modi- fied by later war duties; gradually after 1866 many parts of the war tariff were struck off. In 1883 there was a general revision of the^ tariff, which was intended to lower the duties, but really raised them. In 1890 the McKinley Tariff raised duties to the highest figure experienced up to that time. In 1894 the Wilson- Gorman Tariff, while still highly protective, considerably reduced duties. In 1897 the Dingley Tariff again increased duties, in many cases above the McKinley rate. It is difficult to know precisely what the protective effect of Ek tariff may be, because all the recent tariffs include many compound duties, — that is, duties made up in part of a specified rate (so much a pound or a yard), and in part of an ad valorem rate (so much on each dollar's worth of goods) . For instance, the Dingley tariff on velvets is 1 1.50 per pound, plus 1 5 per cent ad valorem ; on clothing, 44 cents per pound, plus 60 per cent ad valorem; on hats, from $2 to $.^ per dozen, according to quality, plus 20 per cent ad valorem. Leaving out of account the free list, and compar- ing the receipts from duties with the total value of dutiable imports, the average rate of duty in 1841 was about 23 per cent; in 1847, 22^ per cent; in i86o, 19 per cent; in 1868, 50 per cent; in 1882, 44 per cent; in 1891, 47 per cent; in 1 90 1, 50 per cent. These average figures are much under some rates of duty : on carpets the present duties are about 80 percent; on blankets, about 100 percent; on potatoes, about 70 per cent. Many duties are so high as to prevent importation altogether, so that there are no figures from which to calculate the effect. No act is more difficult to draw up than a tariff, because of the great number of interests affected. Until about 1846 § 176] History of the Tariff. 397 the tariffs were usually made by special committees ; there- after by standing committees, in which the minorities were represented. The tariff of 1883 was framed by a special commission, but was very much altered as it went through the process of enactment. Since that time the tariffs have been made by the majority members of the Ways and Means Committee without consultation with the minority members, and usually take the name of the chairmen of that committee, as the McKinley Tariff, the Wilson Tariff. Sometimes, while the Ways and Means Committee is at work, the Senate man- agers also prepare a bill, to be substituted when the House bill appears. The committees of both houses commonly hold public hearings, and also confer with representatives of the interests affected; and in some cases manufacturers prepare parts of the text of the bill, which are afterwards incorporated. Consumers and importers are usually not en- couraged to appear before, committees. On the three last general tariffs of 1890, 1894, and 1897, there was little genuine debate in the House. Hundreds of amendments were filed, but no vote could be reached upon them, because a tariff is a delicate adjustment between con- flicting interests, and to strike out a duty here and add another there may raise up unexpected elements of opposition. The Senate cuts and slashes the House tariff bill, usually in the direction of increase of duties. The differences between the two houses are then submitted to a conference committee, and that body of six men practically frames the final tariff, often inserting items which have been approved by neither house. The work of the conference committee is then accepted by both houses, and thus a new tariff comes into being. No tariff is long satisfactory, even to its friends : changes in the methods of doing business alter the effect of the act ; and the tariff cannot make everybody prosperous. »For in- stance, the discovery of a new process for making steel in the sixties revolutionized the making of rails and structural iron, so that the old tariff did not correspond to the situation. 398 Taxation. [§177 There is no magical power in a tariff to compel buyers to pur- chase, and the high rate of duty which cuts off the importation of a foreign article may raise the price to such a point that consumers find a substitute : thus, the very high rate on woollen cloths since 1890 has led to a much wider use of cheap woollens with admixture of cotton and shoddy. Hence, as soon as a tariff is fairly passed, appeals are made to modify it, not only from those who wish to reduce the rates, but from the protected manufacturers who find themselves disappointed. Since 1883, Congress has been chary of tariff bills dealing with partial fields, because to alter one part of the tariff may bring on a general tariff discussion. The following table shows the value of some of the principal articles imported during the fiscal year ending June 30, 1901, the duty on them, and the percentage of duty, arranged in order of magnitude of the duty collected : Article. Value. Amount of duty. Per cent of duty. Sugar and molasses Cotton manufactures Wool and manufactures of . . . Tobacco and manufactures of . . Silk manufactures Fibres and manufactures of . . Liquors ......... Iron and steel and manufactures of Leathers and manufactures of . . Hides of cattle Jewelry and precious stones . . 8587,004,000 39,774,000 30,727,000 15,056,000 26,836,000 34.637)000 13,028,000 18,319,000 11,682,000 14,872,000 16,490,000 663,022,000 21,827,000 21,575,000 16,656,000 14,246,000 12,908,000 9,121 ,000 6,988,000 4,104,000 2,231,000 2,143,000 177. Administration of the Tariff. In practice, the workings of a tariff depend very much on its administrative features, which come too little into public attention. At the head of the system is the secretary of the treasury, who, more than any other member of the cabinet, is subject to definite and specific acts of Congress. One of the assistant secretaries is in general charge of the customs depart- ment. The whole country is divided into about 120 collec- tion districts, in each of which there is a collector; some of §177] Administration of the Tariff. 399 them have surveyors, and 6 have each a third official, known as the "naval officer," although he is simply the head of the accounting department. Subordinate to the collector are the surveyor, the appraisers, and a staff of clerks, examiners, in- spectors, watchmen, storekeepers, and the like. The 120 districts differ much in the importance of their business. The port of New York receives about two thirds of all the imports, and the ports of Boston, New York, Phila- delphia, Baltimore, New Orleans, and San Francisco do about nine tenths of all the business. The port of Annapolis, Mary- land, in 1 89 1 collected ^43.50, at an expense of about $1,000 ; the port of Burlington, New Jersey, collected $1.25, at a cost of about $200 ; the port of Cherry Stone, Virginia, collected nothing at all, at a cost of over $2,000. Such small districts ought to be consolidated with the neighboring districts ; but it is difficult to bring about the discontinuance of a United States office. In the large ports the collectors are paid by salary, the highest being $12,000 to the collector of New York ; in the small districts, they have fees and small salaries. Two systems of levying duties have prevailed from the beginning of the government, — the specific (so much a pound, yard, or dozen), and the ad valorem (so much on each dollar's worth of goods). The advantage of the specific system is that it is simple and easily administered : you have but to weigh and count and your task is done. On the other hand, the specific duty always rises as goods become cheaper : a duty of $6 per ton on steel rails would be about 15 per cent when rails were $40 a ton, but it would be 30 per cent when they fell to $20 a ton. The ad valorem duty, while more stable, is a constant in- citement to fraud : if the dutiable value can be understated, the duty is lowered by that much. Even where there is no fraud, it is customary for heavy importers to have houses on both sides of the Atlantic : Jonas Brothers in Nuremberg ship toys to Jonas Brothers in New York, and make the invoices on which values are calculated, without including the profit. 400 Taxation. [§ 177 To counteract this tendency Congress has made many stat- utes, the most effective of which was passed October i, 1890, separately from, though during the same session as, the Mc- Kinley Tariff, and amended in 1897 ; it is known as the Administrative Tariff Bill. This act provides that goods must be billed at the " customary market rates " in the place where they are produced or ordinarily sold abroad, and that the invoices must be certified by an American consul. Such cer- tification, long a part of the system, is almost always a matter of form, and does not protect the government. Every vessel arriving in an American port must have a " manifest," showing every article of the cargo ; and the importer must send to the government duplicates of the invoices for his goods. It then falls to the appraiser's office in each port to examine the goods, to see that they correspond with the invoices in quan- tity and quality, and that they are stated at their true values. The appraiser's work is the most delicate in the whole sys- tem. By the act of 1890 was created a body of general appraisers, drawing salaries of ^7,000 a year. A board made up of three of these appraisers has a final decision on the value of imported goods : from them no appeal can be taken, either to the secretary of the treasury or to the courts. Next comes the question in what category of the tariff act the goods shall be placed. Notwithstanding the hundreds of items in tariff acts, articles are frequently imported which are not dis- tinctly mentioned in them. What is a flying machine, for instance ? Is it personal baggage, or a carriage or a tool of trade ? or is it a manufacture of steel, or a manufacture com- posed partly of steel and partly of silk? Such questions are decided by a board of three of the appraisers, but with an appeal to the courts. Importers frequently pay duties under protest, and bring suit against the government for refunds, on the ground of wrong classification ; they have sometimes recovered millions of dollars by such suits. Passengers arriving at a port are entitled to carry their personal possessions through the custom-house by a much § 1 78] Appraisal. 401 shorter and more expeditious process. Before landing, the passenger makes a declaration of the dutiable goods in his possession; on reaching the docks his trunks are examined, and he pays duty on what he^ has declared ; if other dutiable goods are found, they may be seized if there seems to have been an attempt to smuggle them, or he simply pays the duty. There are many annoyances incident to this examination, and many charges that inspectors accept bribes for passing bag- gage. For many years passengers were allowed to bring with them wearing-apparel " appropriate for the purposes of their journey and present comfort and convenience " ; by the Dingley Act of 1897 the value of such clothing is limited to $100 in case of returning residents of the United States. There is no reason why passengers should have any greater immunity than other importers ; and the Treasury has by recent orders attempted to put an end to evasions and fraud, by holding that the ^100 worth of free goods may include small purchases other than clothing ; those orders, however, have been held invalid by a recent decision of the Board of General Appraisers. 178. Excise and Internal Revenue. In most governments of the world, malt and spirituous liquors and tobacco are among the important objects of taxa- tion, because they are abundant, widely diffused, easy to reach, and are either counted among luxuries or discouraged as harm- ■ ful. Imported wines and liquors of high cost are also subject to tax as luxuries used chiefly by the rich, and are productive of large revenue ; hence most tariffs, among them that of the United States, have high duties on the importation of alcoholic beverages and tobacco. The actual cost of crude spirits, especially with modern scientific apparatus, is not more than 25 cents a gallon ; peach brandy, apple-jack, and rough corn whiskey may easily be manufactured by farmers and others with inexpensive appa- ratus, and were so manufactured in considerable quantities in 26 402 Taxation. [§ 178 colonial times. What more apt and convenient source of taxation than on the manufacture and sale of such liquors, and of the milder malt liquors and wines? During the Con- federation, several states, especially Pennsylvania, laid such a tax. By the constitution. Congress had specific power to lay " excises," and it was part of the financial scheme of Alexan- der Hamilton to frame a whiskey tax for federal purposes. By act of March 3, 1791, the first federal excise was laid, in the form of a tax of from 9 to 30 cents a gallon on the manu- facture of distilled liquors, or a yearly tax of 60 cents per gallon capacity on small country stills. This tax was very unpopular, and required disagreeable methods of collection ; and it cost about one fifth of its gross amount to collect it. In 1794 popular opposition in Western Pennsylvania led to the so-called "Whiskey RebeUion." The tax was never so productive as had been hoped, although in 1800 it brought in ^1,000,000. Jefferson's first Congress repealed it in 1802. In 1813 it was revived, to- gether with a license tax on retail dealers ; and it produced $15,000,000 during the four years that it was levied. In 1862 it was a third time introduced, and has ever since been a part of the revenue system. The excise has not been repealed, both because it is pro- ductive and because it is evident that repeal would so cheapen liquor as greatly to increase its use. Since 1890 it has almost equalled the receipts from customs ; and during the three fiscal years of the Spanish War tax, 1 899-1 901, it averaged about $300,000,000, or $70,000,000 a year more than the customs ; of this amount $108,000,000 came from spirits, $58,000,000 from tobacco, $73,000,000 from fermented liquors. In 1 86 1 it cost about 24 cents a gallon to make untaxed whiskey; in 1865 the tax was $2 a gallon, producing about $16,000,000; in 1868 the duty was lowered to 50 cents a gallon, and in two years the proceeds rose to $55,000,000. The reason was that the high duty gave an impetus to illicit § 178] Excise and Internal Revenue. 403 and fraudulent distillation : even under the present low duty there are numberless stills in the mountain regions of the South, where " moonshine whiskey " is made. At present the rate of tax on beer is $1.00 per barrel; on spirits, ^i.io per gallon ; on prepared tobacco, 6 cents per pound ; and on cigars and cigarettes, 54 cents to ^3.00 per thousand. Classed in the government reports with internal revenue are various other forms of taxes. In 1794 Congress laid a carriage tax of from $2 to $15 ; and in the case of Hylton v. United States the Supreme Court held that the tax was con- stitutional, because an indirect tax. In the same year taxes were laid on the manufacture of sugar, snuff, and on retail sales of spirituous liquor. In 1798 began stamp taxes on legal instruments. All these taxes were repealed in 1802, but nearly all of them were again imposed in 18x3, ceased in 181 7, and were laid for the third time in 1862. By a series of acts during the Civil War, Congress tried to reach every kind of manufacture and of trade : licenses were required for all sorts of pursuits ; a stamp tax was laid on almost every written evidence of commercial transaction; and these taxes were especially productive in the two or three years after the war closed. Gradually most of such taxes were removed: the two-cent duty on bank checks was repealed in 1883, but four years later a new form of tax was laid on the production of oleomargarine. In 1898, when the Spanish War broke out, many of these taxes were again imposed, including the tax on bank checks; but in 1901-1902 all the stamp duties and other war taxes were withdrawn. Since the Civil War, the normal national revenue in the United States has been made up of about one half customs receipts and one half internal taxes on alcoholic beverages and tobacco. In time of war or other financial stress, the government resorts to a great variety of manufacturing, license, and stamp taxes ; but people do not like them because they are an inconvenience as well as a money sacrifice, and Con- gress hastens to withdraw them as soon as possible. 404 Taxation. [§ 179 An additional tax is placed upon the liquor business by United States licenses, which are required from both wholesale and retail dealers, and range from $200 to ^20 a year. Even where states prohibit the sale of liquor altogether, dealers take out United States licenses. In most states there are likewise state or local taxes on all dealers, such annual taxes varying from a few dollars up to $2,500 in New York City. Some- times these taxes are assigned to the city government, and form a considerable item in the year's receipts ; but no Amer- ican state has gone to the length of the Swiss constitution, which provides for a liquor tax, a part of the proceeds of which shall be spent in combating the evils of intemperance. 179. Amount and Incidence of Taxation. Although the kinds of taxation and the methods of their distribution much affect the welfare and productiveness of the country, and although plenty of people find it hard to raise the money to pay taxes, yet the United States is by far the lightest-taxed of all great countries. One reason is that almost the whole burden of taxation is indirect : the happy possessor of a new suit of clothes, the laborer puffing at his pipe, is paying a part of the tax in the higher price on his purchase. Yet the total burden of national expenditures in 1901 was only $6.56 per head of the population, while the burden in France was $17 per head; in England, $19.18; in Germany, $12. This comparison is misleading, because in those three coun- tries a large part of the local expenditures are borne out of the national treasury. For an accurate idea of the burden of taxation in the United States, we must add the taxes laid by states, counties, cities, boroughs, towns, school districts, sewer districts, and other subdivisions. This difficult task, involving the assembling of the reports of forty-five states, four territories, 1,000 organized cities and villages, perhaps 2,800 counties, and several thousand towns, is being done for a supplementary volume of the last census. § 179] Amount and Incidence. 405 The state tax is almost everywhere the lightest item, often not more than a dollar or two per head of the population. In 1 90 1 the New York State tax was about 94 cents per head : the South Carolina tax about 70 cents. Local taxes vary enormously : Boston, with 600,000 people, pays about ^20,000,000 of annual tax, an average of about ^35 per head ; Greater New York, with about 3,500,000, pays ;^ 100,000,000, or I30 per head ; in some of the Southern and Southwestern states, the local tax is not more than half a dollar a head annually. Mr. Edward Atkinson estimates that the average state and local tax is about equal to the national tax, making a total average tax of about ^14 per head of the population. Comparing this with the taxes of England, Germany, and France, it will be seen that our total governmental burden does not equal the average of national taxation alone in these European states. At the same time the United States is a very prosperous nation, with an annuaf product twice as great per capita as in Germany, and the tax does not take up more than one fourth of the annual national savings ; while in some parts of Italy the tax-gatherer gets in cash more than a fourth of the gross money income, to say nothing of savings. This comparative lightness of taxation is one of the reasons for the great commercial activity in America. The question just who pays the taxes in the long run is puz- zling to skilled economists. Plainly, the owner of rented land and buildings expects his rent to cover both interest and taxes ; so that the occupant who owns no landed property cannot help paying a tax on land. The importer of merchandise and the brewer of beer redistribute the taxes which they pay, by adding to their selling price. The holder of a mortgage covenants with the mortgagee to pay the tax, or else he adds enough to the rate of interest to make himself good. In the long run, taxes are widely distributed, but are apt to fall with most severity upon the poorer part of the population : (i) because, if they have taxable property, they cannot hi^le their little house, work-animals, or savings-bank deposits; 4o6 Taxation. [§ 179 (2) because they pay most of the tax unconsciously through increased prices; (3) because there are so many more of them that their gross burden is vastly greater than that of well-to-do people. The inequality of taxation is enhanced by the greater ease with which the rich man may change his residence or form of investment, to avoid heavy taxation. A large part of the national taxes fall on the middle classes in America, — on professional men and women, teachers, and the higher artisans. A family with an income of $2,000 a year, paying taxes on a house assessed at $5,000, pays from $50 to $150 a year outright on real estate, and anywhere from $100 to $300 by the indirect effect of local and national taxes. Taxation is the price which civihzed communities pay for the opportunity of remaining civilized. If the whole twelve or fifteen hundred millions of dollars raised annually in taxes in the United States were every year thrown into the sea, the country could well bear the loss, if it still had peace and good order : a year of civil war would cost more than ten years of peace taxation. A large part of the money from taxes goes into direct protection of society, — into police, firemen, militia, the army and navy ; a part into indirect protection, such as education and the improvement of the community. A part goes into permanent buildings and improvements ; a large part goes into salaries of people who keep the accounts ; and a considerable fraction, probably from one third to one fourth of the whole amount, goes without any return, because spent injudiciously or extravagantly, — a waste which is so much subtracted from the productive powers of the nation. Nevertheless, as yet only a small fraction of the total earnings, or even of the total savings, of the people is absorbed in government expenditures which confer no benefit on the community. CHAPTER XXII. PUBLIC FINANCE. 180. References. Bibliography: D. R. Dewey, Financial Hist, of the U. S. (1915), Suggestions, and §§ 26, 33, 53, 126, 141, 202, 215; Macy and Gannaway, Comparative Free Govt. (1915), 722 (cases); A. B. Hart, Manual (1908), §§ 117, 118, 148, 220, 221; Cyclop, of Am. Govt. (1914), I, 63, 485, 551, 693; II, s, 8, 10; III, 90; W. B. Munro, Bibl. of Municipal Govt. (1915), §§ 70, 74-76; E. McClain, Constitutional Law (1910), § 80; Channing, Hart, and Turner, Guide (1912), §§ 177, 182, 194, 206-208, 213, 220, 237, 243, 252, 254, 262, 271. See also references in ch. xxi above. Financial Administration: E. McClain, Constitutional Law (1910), §§ 81, 82; A. B. Hart, National Ideals (1907), ch. xv; F. J. Goodnow, Administrative Law (1905), 449-457; J. A. Fairlie, Municipal Adminis- tration (1901), chs. xiii, XV, xvi; J. H. Hollander, Studies in State Tax- ation (1900); D. Kinley, Independent Treasury (1910); E. G. Bourne, Surplus Revenue (1885); Cyclop, of Am. Govt. (1914), Arts, on Appro- priations, American System of; Budgets, Federal; Budgets, State and Local; Cost of Governments in the U. S.; Expenditures, Federal; Expenditures, State and Local; Fees and the Fee System; Finance, Local Systems of; Finance, State Systems of; Financial Pohcy of the U. S.; Financial Powers, Constitutional Basis of; Financial Statistics; Public Accounts; W. B. Munro, Municipal Administration (1916), ch. x; H. J. Ford, Cost of our National Govt. (1910); C. C. Plehn, Public Finance (3d ed., 1909), pt. i; J. B. PhilUps, Methods of Keeping the Public Money (1900); H. C. Adams, Am. War Financiering {Pol. Sci. Quar., I, 349-385, 1886); W. G. Sumner, Financier and Finances of the Revo- lution (1891); H. C. Lodge, Alexander Hamilton (1900), chs. v, vi; J. A. Stevens, Albert Gallatin (1900), ch. vi; W. G. Sumner, Andrew Jackson (1900), chs. viii, x, xi; A. B. Hart, Salmon P. Chase (1900), chs. ix, xi, xv; J. Sherman, Recollections (1895), chs. xxiv-xxvii, xxx. — Sources: P. S. Reinsch, Readings on Anr. Federal Govt. (1909), ch. viii. Public Debts: A. D. Noyes, Forty Years of Am. Finance (1909); J. W. Kearny, Sketch of American Finances (1887); W. F, DeKnight, History of the Currency and Loans (2d ed., 1900); C. C. Plehn, Public Finance (3d ed., 1909), pt. iii; Cyclop, of Am. Govt. (1914), Arts, on Debt, Public, Administration of; Debt, Public, Interest on; Debt, Public, Principles of; Debt, Pubhc, Redemption of; Debt, Public, 407 4o8 'Public Finance [§ i8i Repudiation of; W. A. Scott, Repudiation of State Debts (1893); J. A. Fairlie, Municipal Administration (1901), ch. xiv; U. S. Census Bureau, Report on Wealth, Debt, and Taxation, igij (1915)- 181. Public Property. Although the governments in the United States are the heaviest real-estate owners, their holdings are with few excep- tions unproductive, and of course pay no taxes. The public lands are held only until somebody comes along who wants to buy them ; national, state, municipal, and local parks yield no revenue, and are a constant source of expense. Almost the only revenue-producing public properties are the docks in a few cities, and the water-works, gas-works, and electric sys- tems of cities which own their own plants. State and national forests properly managed may also eventually become a source of moderate revenue. South Carolina has a state monopoly of the liquor business. Like a corporation, a prudent government must keep a working balance of money in hand. The United States has repeatedly seen that balance grow against its will, and various means have been adopted for getting it out of the vaults and into circulation. From 1791 to 1836 (with the exception of the years 1811— 1816), the national balances were deposited chiefly in the Bank of the United States; from 1833 to 1841, in selected state banks; from 1841 to 1862, in the vaults of the government. Since 1862 some parts of the balance have been kept in national banks, the greater portion in the custody of the treasury. The highest annual accumulation of surplus was $146,000,000 in 1882. Although political favor always plays some part in the selection of banks of deposit, it does not appear that any officer of the United States has ever prof- ited by placing public deposits. State, county, and municipal balances are, however, fre- quently deposited in banks, on an agreement that the treasurer or other custodian shall receive interest for his private profit ; and heavy losses have many times occurred because the treas- § i8t] Public Property. 409 urer chose the bank that would promise large interest in- stead of large safety. If any advantage is to be got out of public deposits, it ought to go to the public ; state and county treasurers ought to have salaries adequate for their duties, so that there should be no excuse for this dangerous practice. Cases have been known where the school-teachers of a state went unpaid for months, in order that the state treasurer might draw interest on money that really belonged to them. The general government and the state governments always own considerable amounts of military and other materials and supplies ; and the federal government owns the ships of war, often costing millions of dollars each. Some cities own float- ing fire-engines, and transfer and ferry boats. The furniture of schoolhouses and other public buildings, and the fittings of state institutions, are either state or municipal property. The federal government has a searching system of record of its property, and loses comparatively little. States and munici- palities are more careless, especially in the sale of disused materials, and sometimes are subjected to gross frauds. An instance during the Spanish War was the sale, by some state officials, of military clothing belonging to the state for $40,000, and its repurchase on state account for over $100,000. The various governments frequently own working animals, from the army mule to the powerful fire-engine horse. A few cities have attempted to acquire the street-car lines within their borders ; and, although none have yet succeeded, the cities of Boston and New York have constructed costly subways, which remain the property of the city and are leased to operating companies. For nearly forty years the United States owned mortgages in certain Pacific railroads ; and many states in early days either built or took stock in canals and railroads, and a few relics of such ownership still exist. The United States is about to begin the construction of a canal across the American isthmus, which will remain national prop- erty. It has been too common for local governments of every kind — cities, towns, and counties — to give or lend money 41 o Public Finance. [§182 to railroads which were to run through their boundaries ; hence many of the state constitutions absolutely prohibit the use of public credit in any form for such enterprises. In 1873 Cin- cinnati got round a prohibition of this kind by building the Cincinnati Southern Railway, in which the municipality is the sole owner, at a prime cost of about $19,000,000. 182. Public Budgets. Three systems of public finance have prevailed in the history of the world : — (i) The Asiatic system, reaching from Babylonia down to modern Turkey : the government takes everything that it can lay its hands upon without crippling the country and leaving it unable to furnish taxes the next year ; and the money is then all spent by somebody. (2) A method that is best exemplified by the English system : the chancellor of the exchequer calculates beforehand the necessary expenditures of the government, which are usually so steady that he can come very close to the actual sums ; he then calculates the revenue, and if it comes to less or more than the probable outgo, he adds to or diminishes a small elastic tax on incomes. This is the method universally adopted by cor- porations and private institutions which serve public purposes, and is substantially followed by American states and cities. (3) A method that proceeds from the other end on : it provides revenues without any special reference to the needs of the country, and then considers ways of spending money to balance those revenues. This system, almost unexampled in history, is followed by the federal government of the United States, and is one of the weakest parts of all American gov- ernment. It has arisen because the tariffs are framed with a view, not so much to stimulate imports and thus increase the revenues, as to reduce the import of dutiable goods for pro- tection to American industries. Every tariff from 1789 down has expected that many importations would continue, even under high rates of duty. The wealthy man who wants § i82] Public Budgets. 411 champagne or a modern picture or a London hat will have it no matter what the duty is ; and on more common articles the duty must leave some opportunity for importation, because a large customs revenue is essential to the government ; but nobody can ever predict beforehand just what the result of a new tariff will be, and customs receipts are subject to great variations according to the prosperity of the country. A panic invariably cuts down customs receipts : for example, in 1836 customs brought in $23,000,000; in 1837, ;^i 1,000,- 000; in 1872, $216,000,000; in 1874, $163,000,000. The excise duties are much steadier, but still they vary unaccount- ably from year to year : they brought in $167,000,000 in 1893, and $147,000,000 in 1894. Furthermore, neither the cus- toms revenue nor the internal revenue is elastic, for neither can be altered without long-continued and violent political debates. Hence our national revenue is fluctuating, and bears but little direct relation to the needs of the government. Four times in its history has the United States accumulated a surplus out of taxes — in 1 801-1808 to the amount of $43,000,000; in 1816-1819, about $34,000,000; in 1822- 1836, about $139,000,000 ; in 1866-1893, about $1,881,000,- 000. In every case except the year 1836 the balance went to reduce the public debt, or to provide a reserve to protect circulating forms of that debt. During all these periods of debt reduction, the government was hampered by the neces- sity of buying back its own bonds at a premium. The outgo of the government is affected whenever more money accumulates than is needed. The country in general does not like to see balances accumulate in the treasury; it therefore permitted the payment of $20,000,000 of direct tax .back to the states in 1891, favored the dependent and private pension bills in 1890, and in 1886 came near adopting a scheme for spending $77,000,000 on education in the states. In England the whole outgo of the government is combined in one statement, for which the chancellor of the exchequer and the whole ministry are responsible. In the United States 412 Public Finance. [§182 the secretary of the treasury makes estimates, but the actual expenditures are authorized by bills introduced by half a dozen different committees. Of late years the Speaker of the House has become an untitled chancellor of the exchequer, and in- sists that the total expenditures shall bear some relation to the money likely to be in hand. Leaving out of account special war expenditures, the national expenses were in the decade from 1880 to 1890 about ^250,000,000 a year, and in the next decade about $350,000,000 a year. The whole budget system is much disturbed by the practice of borrowing for current expenses. In 1890 the national revenue was $105,000,000 more than the ordinary expenses; in 1894 it was $70,000,000 less than the ordinary expenses ; and in the six years 1894-1899 the government ran behind about $280,- 000,000. As Congress was unwilling to lay new taxes, there was no resource but to borrow money, although it is humiliating for a wealthy people not to pay its bills from year to year. The expenditures of the states are usually very definite, and do not vary seriously from one year to another. Interest and sinking-fund, support of public institutions and of the state civil service, additions to public buildings, state expenditure for education, — these are the chief outgoes. Heavy expendi- tures, such as the construction of a new state capitol, are ordinarily provided for by an issue of state debt. On the other hand, the occasional income of a state from fees, interest, licenses, and the like is easy to estimate ; corporation taxes and other large fixed taxes are tolerably steady ; and the com- mon method is to add all these items of revenue, and then to lay a special state tax on land sufficient to meet the balance. For instance, in 1895 the state of Massachusetts had a corpora- tion tax of $3,600,000, bank taxes of $2,000,000, a collateral legacy of $420,000, liquor licenses of about $700,000 ; various smaller items brought the amount up to $8,500,000, and the state then laid a land tax of $1,500,000. The state debts are almost always incurred for large and permanent improvements. The municipalities have a way of §182] Public Budgets. 413 borrowing for the construction of new buildings ; this increases the interest charge, and eventually the city has to pay the principal out of taxes, as it might have done at first. It is therefore almost impossible to say off-hand whether a city is or is not raising every year money enough for its normal expen- ditures. Another difficulty, found only in state and local governments, is that the constitution frequently prescribes a maximum rate of taxation, but allows change of assessments ; hence, if a city must have more money, it is likely to screw up the valuation and thereby increase the taxes, though the apparent rate may be diminished. Greater New York in 1903 raised the valuation from ^6,595,000,000 to ^9,176,000,000. BUDGET OF THE TREASURER OF PENNSYLVANIA FOR THE FISCAL YEAR 1901-1902. Revenue. Expenditures. Land $5,000 Legislative department . . . $19,250 Tax on stock 5,991,000 Executive departments . . . 500,200 Tax on receipts, incomes, and Executive boards 235,850 premiums 1,839,000 Judiciary 742,900 'Tax on loans 1,350,000 Public printing ...... 300,000 Tax on personal property . . 700,000 Grounds and buildings . . . 69,700 Tax on collateral inheritances . 1,150,000 New capitol 1,650,000 Tax on writs, deeds, etc. . . 150,000 State library 23,675 Licenses 2,336,800 Stationery and supplies . . . 175,000 Fees and commissions . . . 201,000 Commissions 104,800 Bonus on charters .... 700,000 Insane 1,059,542 Interest and bond payment . 356,750 Penitentiaries and reformatories 383,286 Miscellaneoiis ...... 38,675 Charitable and other institu- Total ....... 514,818,225 t'°"^ 1,739,988 Education 6,311,479 Militia 387,500 Purchase of forest reservation 150,000 Bridges 200,000 Interest and sinking fund . . 251,208 Miscellaneous 57,600 Total $14,361,978 Most of the municipaUties follow the same business princi- ples. In their case, the occasional items are smaller; the greater part of the expenditures must be met by taxes ; and the rate of taxation is fixed every year, and easily compared with the rates of previous years. The tax-payer ordinarily pays little attention to the amount of the stale tax, but is much alive to any sudden increase in his local tax. 414 Public Finance. [§ 183 BUDGET OF THE AUDITOR OF SAN FRANCISCO FOR THE FISCAL YEAR igoi-1902. Revenue. Expenditures. Fees and commissions . . . $172,500 Legislative department . . . $271,800 Fines 33)Soo Executive department .... 269,820 Licenses 470,000 Legal department 326,840 State school money 675,000 Public works 924,594 Collateral inheritances . . . 20,000 Police 817,278 Rent 58,750 Public health 280,680 Building permits . . . . ; 25,000 Electricity 91,988 Miscellaneous 20,35° Light for city purposes . . . 255,000 Tax on real estate 3,117,600 Fire 777,000 Tax on personal property . . 1,328,200 Water for city purposes . . . 100,000 Total $5,920,900 Elections 85,000 Civil service 8,100 Schools 1,200,000 Public library 62,000 Parks 285,000 Interest and sinking fund . . . 25,000 Total $5,780,100 183. Public Expenditures. The expenditures of the various governments are regulated by a few practical principles. The first is summed up in the term " control of the purse," which means that the appropria- tion of money for public purposes rightly belongs to the legis- lative department. This principle was developed in colonial times, and was one of the chief means by which the assemblies made head against the governors. The legislatures not only claimed the sole power of taxation within their colonies, but also the right to direct the purposes for which money should be spent, and to follow and control that expenditure in the hands of the colonial executive. The federal constitution distinctly states that no money shall be drawn from the treasury, except in consequence of appro- priations made by law. During the early years of the federal republic such appropriations were frequently made in lump sums, to be expended at the discretion of the heads of depart- ments. Gradually Congress came to itemize more and more minutely ; and at present the annual appropriation bills fix the number of clerks in each bureau and their salaries, and go into § 183] Public Expenditures. 415 such details as the following : " Improving Newtown Creek, ^10,000; of which ^2,500 is to be expended on west branch, ^2,500 on main branch, and balance on lower end." These appropriation bills, however, are not made up irrespectively of the executive. Every head of a department submits an elaborate estimate, based on statements made by various subor- dinates, of the sum necessary for each of the many branches of the service. There used to be a crabbed member of a com- mittee of Congress who invariably cut down a particular esti- mate by one half, and who learned after he had left Congress that the estimate submitted to him was always just twice what was desired. About one third of the expenditures of the federal govern- ment are "permanent" or "permanent specific" — that is, voted for a specific purpose without any limitation of time; the amount may be a definite one or such as may be found necessary for the object for which it is appropriated ; and it is payable out of any moneys in the treasury, unless otherwise ordered by an act of Congress. The ordinary annual appropri- ations are made for a specific purpose for liabilities incurred in the fiscal year for which they are appropriated. The expenditures of the United States are provided for by thirteen annual appropriation bills, — agriculture, army, con- sular and diplomatic, deficiency, District of Columbia, forti- fications, Indians, legislative, executive, and judicial, military academy, navy, pensions, post office, and sundry civil. The " legislative, executive, and judicial " bill provides for the gen- eral civil service, and for the support of Congress and the judiciary; it has crept up slowly from $500,000 in 1793 to $122,000,000 in 1 90 1. War expenses are continuous, but of course much greater when fighting is going on : about $1,000,- 000 a year at first, they were $20,000,000 in 1814, $35,000,- 000 in 1847, and $1,030,000,000 in 1865 ; in the year 1899 they were $229,000,000. Naval expenses were about $1,000.- 000 a year early in the nineteenth century; $122,000,000 in 1865, and $15,000,000 in 1888; in 1901, a year of peace, 41 6 Public Finance. [§183 they were ^60,000,000. The Indians receive about ^7,000,- 000 a year. Pensions cost ^1,000,000 a year just before the Civil War, ^27,000,000 in 1878, and in 1893 reached the high-water mark of $158,000,000, which is about double the total expense of the government in any year before the Civil War. Interest on the public debt cost from $1,000,000 to $3,000,000 a year in the decade before the Civil War, rose to $144,000,000 in 1867, and by reduction of the principal and refunding at low rates of interest has come down to $<2 9,000,000. The control of the expenditures of the government is exer- cised through the Treasury Department, since warrants drawn for expenses in other departments come there for payment. The principal accounting officers are a comptroller, and six auditors, one for each of the principal departments. Since no account can be paid without their approval, they exercise the final right of deciding whether a given expenditure is covered by act of Congress, and whether money has been appropriated by Congress in a constitutional manner. In 1895 Comptroller Bowler refused to authorize payment of a bounty on beet sugar under an act of 1890, on the ground that it was unconstitu- tional to pay bounties to producers ; whereupon suit was brought before the Supreme Court, which issued a mandamus compelling the payment of the money. The registrar of the treasury is a sort of book-keeper ; the treasurer is the custo- dian of the public funds. The methods of government" bookkeeping are complicated, and it is difficult for federal officials to get a settlement of their accounts. If a linchpin is stolen out of a government wagon, a new one cannot be had unless some one will take oath that the old one was used up in the government service. In 1886 the government books showed nominal balances against John Adams for $13,000; against General Lafayette, $5,000; against Washington Irving, minister to Spain in 1847, three cents ; against William D. Howells, consul at Venice in 1873, $24.75 '} agaiiist John Howard Payne (the author of § 183] Public Expenditures. 417 "Home Sweet Home "), consul at Tunis in 1853, ^205.92. Probably every one of these claims was offset by payments for the government, and in many cases the government really owed the alleged debtor. Accounts with the states have often stood unsettled for many years : certain payments made by Massachusetts during the War of 18 12 remained unpaid till 1 86 1. With this strict and remorseless bookkeeping it is often necessary to pass special relief bills in cases of hardship. The expenditures of the states are made in the same manner as those of the Union : money must be appropriated by the legislatures, and annual accounts of receipts and expenditures are published. The states, however, have many institutions (such as prisons and workhouses) which produce something, and which are sometimes allowed to retain the money and allow it in their accounts. A better system, which is gaining ground, is to have all receipts paid into the state treasury and to make appropriations large enough to cover the actual expenses. The same difficulty occurs with fees, which are common in national, municipal, and state service, and sometimes make large in- comes : the clerkship of the supreme court of a state, for instance, may be one of the best-paid offices in the state. The national government tends more and more to require that fees be turned into the treasury, and that an adequate salary be voted ; and there is room for reform in that direction in the states. The purposes of state expenditures are legion. The heavi- est is the payment of legislative, executive, and judicial salaries. Next comes the maintenance of state institutions, — prisons, insane hospitals, reform schools, normal schools, — and often a large part in the support of country schools. Another large item is the construction of ways of transportation : the state of New York has spent ^95,000,000 on canals; Massachusetts is now spending out of the state treasury about halt a million a year on roads. The sums subscribed by states to canals and railroads are usually supphed by loans; but the interest be- comes an annual charge, and eventually the bonds have to be 27 41 8 Public Finance. [§183 paid. State bookkeeping is in most states less punctilious than at Washington, though there is commonly a state audi- tor, who supervises payments. In general the state legisla- tures do not go far into the details of appropriation bills : very frequently they appropriate lump sums, to be expended at the discretion of the trustees of institutions or of executive boards, who keep and file careful accounts. Expenditures of cities are in the main like those of states. First come the salaries of city officers of every kind, including the support of expensive police and fire departments. Cities have also the costly responsibility of keeping up the streets, an expense much increased by the careless American habit of freely granting permits to tear up pavements in order to lay pipes. Schools are a heavy item in city budgets. Parks and other pleasure grounds absorb a great deal of money. Most of the cities are in debt ; and the interest, with the sinking-fund to extinguish the principal, is a heavy charge. Public water and gas works and electric-light plants, even though productive, require large expenditures for extensions and interest. City bookkeeping is one of the matters that most need attention, and efforts are now making to induce states to agree on a common system of municipal accounting, which will make it possible to compare the different kinds of expenditure from year to year, and also to compare the expenses of one city with those of another. Counties and towns are less subject to extravagant expendi- ture than larger units of population, for they are more carefully watched ; but the erection of county buildings often costs much more than that of private buildings of the same size and character. One of the chief items for local expense through- out the country is schoolhouses : even very small communities often take pride in spending money for handsome school buildings. Throughout the Union the main difficulty with expendi- tures is a lack of one head in each community who shall be responsible for the outgoes of government. Money is appro- § i84] State Debt. 419 priated by Congress, the legislatures, and city councils, each under the influence of various committees ; and there is not a sufficient check on extravagance. In this respect, however, the states, and still more the cities, are managed better than the national government. 184. State Debt. The third great department of public finance is public debt, which is too often treated as though it were a calamity. The foundation of modern national debts was an arrangement, in 1694, between the English government and a new corporation called the Bank of England, by which, in return for large privi- leges, the bank advanced to the government ;j^i, 200,000. The colonies often borrowed money of their own citizens in order to fit out military expeditions. The states did the same in the Revolution, and in 1789 over $18,000,000 of state debt was outstanding. This sum was assumed by the United States, and for about thirty years thereafter the states had little or no debt. Then came the great era of canal-building, which involved all the states froni New York to Virginia, and westward to Illinois. A little later, in the thirties and forties, came the building of railroads with state aid, caus- ing an immediate use for millions of dollars ; and at the same time a new supply of loans became available, because foreign capitalists were willing to advance large sums on the credit of the states. Matters went on flourishingly until the great panic of 1S37, which instantly cut down the state revenues and for the time stopped the development of the West. Many of the states de- faulted on their bonds, among them Pennsylvania, a fact which led Sidney Smith, a holder of some of the bonds, to say that he never saw a Pennsylvanian without a desire to strip him of his coat and boots. Pennsylvania eventually paid up, but other states repudiated principal and interest. The whole transaction was much confused because in some cases the state issued bonds through railroad and banking corporations, 420 Public Finance. [§ 184 which returned only a part of the proceeds : about ^14,000,- 000, which had been lent the states in good faith, was an ab- solute loss to the capitalists. A second period of repudiation came during and after the Civil War. By the Fourteenth Amendment it was expressly declared that no state should pay any debt incurred in aid of rebellion against the United States ; hence all loans of the eleven seceded states incurred during the war became void. The ante-bellum debts were still valid, and the reconstructed governments of the Southern states at once proceeded to make new debts. In South Carolina the accounts were so loose that nobody ever knew whether the issue of bonds was ^25,000,000 or ^35,000,000 ; but $6,000,000 are known to have been put on the market without any authority of law. The debt of the state, which in 1861 was $4,000,000, in 187 1 was stated at $29,000,000, of which about $18,000,000 was soon after repudiated. The state of Virginia was divided during the Civil War, and therefore the reconstructed state refused to hold itself responsible for more than one half the outstanding debt ; and of the remainder a considerable part was scaled. The Southern states, together with two Northern states, between 1865 and 1885 repudiated about $160,000,000, much of which had been contracted by state governments which did not really represent the tax-payers. The amount of outstanding state debts was made the sub- ject of inquiry by the census of 1890. Most public debts are slowly reduced by sinking-funds, accumulated to extinguish the debts when they mature. Deductuig the sinking-funds, the state debts in 1890 were $229,000,000, a decrease of $68,000,000 from 1880; they amounted to less than $4 per capita throughout the United States. As might be expected, the richest states had very little outstanding debt : in Rhode Island the debt was about 70 cents per capita ; in New York about 40 cents ; in Virginia, before the final settlement of the debt, about 20 cents. A large number of the states have only nominal debts for temporary purposes, and more than half of them are practically free from indebtedness. § i85] Municipal Debt. 421 The states, even those which once repudiated, are now able to borrow on very low terms. From 1830 to 1850 the states were the principal heavy borrowers ; now they compete with municipalities and corporations. A few state constitutions seek to limit state debts by provisions that they shall not exceed fixed amounts, ranging from ^50,000 in Michigan to $1,000,- 000 in Pennsylvania ; and that the creation of new debts must be ratified by popular vote. Apparently the present outstand- ing state dobts are likely almost to disappear in the course of the next two or three decades. 185. Municipal Debt. One reason why state debts diminish is that municipal and local debts constantly increase. All American cities are mak- ing large provisions for future generations : streets and bridges, sewers and waterworks, schoolhouses and other public build- ings, are intended to serve many generations. Since the con- struction of an immense water system like the New York City Croton Dam and Aqueduct costs as much as a whole year's taxes, it is reasonable that such improvements should be distributed among several generations of tax-payers. City governments frequently shrink from facing improvements which must be made year by year : hardly an American city undertakes to build out of taxes enough schoolhouses to seat the increasing numbers of children. Street paving is frequently covered by loans, although the pavement wears out and has to be renewed before the bonds are due. With few exceptions, however, the municipal debt represents perma- nent and valuable property necessary for the common weal. The total county debt in 1890 — principally for buildings — was $145,000,000 ; and, although this is only $2.30 per capita for the whole country, in many states it is a very heavy item : Montana, for instance, had in 1890 $2,000,000 of county debts, or $12 per capita. The county debts from 1880 to 1890 increased by $20,000,000 ; but, as the creation of new counties slackens and the necessary buildings are constructed, it is 42 2 Public Finance. [§ 185 probable that the debts will diminish, especially since the counties in many states are now prohibited from incurring debt in aid of railroads. The school-district debt hardly exists in the Southern states, because there is no such administrative unit ; and the Southern county debts undoubtedly include items which in other states go to the school-district account. The total school-district debt in 1890 was $37,000,000, more than twice as much as in 1880; $25,000,000 of this sum was outstanding in the North- central states, from Ohio to Minnesota and Kansas. The per capita school-district debt throughout the United States is 60 cents, but in North Dakota it is $5. This form of debt ought also to diminish when the country regions are properly sup- plied with schoolhouses. Like the county debt, it represents necessary and actual expenditures. By far the largest item of debt created under state authority is that of the local governments. In 1890 it was $725,000,000, an increase of $40,000,000 over 1880, and averaging $11.50 per capita throughout the United States, The heavy munici- pal debts come where there are most cities ; hence it is not remarkable that $450,000,000 of this debt should be owed in the states from Maine to Virginia, and $184,000,000 more in the states from Ohio to Kansas. New York, with its great metropolis and other populous cities, leads off with $187,000,000 of municipal debt, which is $30 per head of the population. The Massachusetts localities come next with $70,000,000, which is about $34 per head. In 1901 the city of Greater New York had rolled up its debt to $364,- 000,000, which is considerably more than $100 per capita. Chicago owed only $26,000,000, or about $12 per capita; Boston owed $46,000,000, or about $80 per capita ; San Francisco had practically no debt. It is certain that the census figures of 1900, when made up, will show a large increase of municipal debt; so that the total will certainly be over $1,000,000,000, or an average of about $13 per capita, and will probably be greater than the national debt. § x86] National Debt. 423 It is difficult to see how municipal debt can be diminished, for American cities are waking up to see what may be done to make life in cities attractive and healthful. New York is now borrowing ^35,000,000 to construct a subway, and ;^30,ooo,ooo for new bridges and tunnels to Brooklyn and the neighboring shore. Many cities are spending large sums in acquiring park lands and boulevards. The pinch is not in the borrowing, for the credit of the great American cities is almost as good as that of the federal government, but in the interest charge, which in New York City is upwards of ^10,000,000 a year. There is a limit beyond which increased taxation tends to diminish the revenue, by discouraging the people from coming into a place. On the other hand, expenditures for parks, breathing-places, boulevards, new streets, bridges, tunnels, subways, schoolhouses, public docks, and other mu- nicipal purposes, which could only be provided for by loans, increase the productive power of a community and thereby raise its ability to bear taxes. 186. National Debt. Until about 1900 the heaviest block of public debt in the United States was that of the federal government. It goes back to a resolution of the Continental Congress of October 3, 1776, providing for a public loan. During the Revolution about ^12,000,000 were lent on what we should call bonds; about ^6,500,000 were lent by the foreign governments of France and Spain; and about $17,000,000 simply accrued, for when the United States had nothing else it paid in interest- bearing certificates of indebtedness. During the Confedera- tion the credit of the government was such that it could borrow nowhere, except $3,600,000 from Dutch bankers ; and interest accrued, so that in 1789 about $40,000,000 prin- cipal and $13,000,000 interest were outstanding, and evi- dences of that debt could be freely bought for specie at from ^5 per cent to 25 per cent of their face. Over $18,000,000 424 Public Finance. [§ 186 of state debt was assumed in 1790; so that, when the ac- counts were all made up, the United States in 1793 owed $80,000,000. The debt somewhat increased under the Federalists and by the purchase of Louisiana, so that in 1804 it stood at $86,000,000 ; but Jefferson and Gallatin set themselves stead- ily to reduce it, and by 181 2 brought it down to $45,000,000, The War of 181 2 raised it to $127,000,000; and then it slowly decreased, till in 1836 it was practically extinguished, and the government had a surplus of $36,000,000, $27,000,000 of which it gave to the states. The panic of 1837 so reduced the revenues that an interest-bearing public debt for running expenses at once sprang up, and in i860 it was $65,000,000 ; then came the enormous drafts of the Civil War, which raised it in 1865 to $2,381,000,000, besides many non-interest-bearing obligations. Under the influence of high taxes and national prosperity, the government then entered systematically upon the almost unexampled task of paying off its debt. There was a strong feeling in the United States that a national debt was a na- tional burden, which must be thrown off as quickly as pos- sible ; though the outstanding debt in 1865 was really much larger than it appeared, for it had been contracted in green- backs, but was payable and was paid, principal and interest, in gold. In twenty years, to 1885, the principal was reduced from $2,381,000,000 to $1,196,000,000. Then came further reductions, till on December 31, 1891, the funded debt stood at $590,000,000. During the decade from 1890 to 1900, however, the debt was again somewhat increased, partly because of the lean years, from 1894 to 1899, and partly because of the expenses of the Spanish War; so that in December, 1901, it stood at $945,000,000, In addition to this interest-bearing debt, the United States has a peculiar kind of obligation impossible either to states or to localities. In 1862 Congress authorized the issue of legal-tender paper currency, and eventually about $450,000,000 1 o o o o o O O GOG OGOOGOOOGOGOOO • o o o o o o o o o o • GGOOGGOOOGOO OO 3 V o o o o_ q^ q^ q^ °. O G_ o o q q^ G_ o_^ o_ o_^ o o^ o_^ q, o o OJ ■ o" o" o' o d o' o" o' g" o" • o" o" d o' o" o" d o' g' o" o" d d d 3 gs o O o o o o o o o o OOGOOOGOOOOOOO « • "^ ^ 1^ Tt r^ M O M ^ ON . n Geo roM Tf-n -co ■'J-" O mvO "" <,5 >-< ^ (r roo LO ^ m" M ro c 1 ro t^ ON cr; Lo ■- >o " O "* ■ — .■^•^ t^n o OM^nro-<^N rS •-^ 'K'o.tj JZ . . . .GOGOGOOOOO ezi OOOOOGGOOO nJ o q^ q^ q o^ o_^ o_^ o_ o_ o -S 24i U " ■ " ■ o" o" o" d o" o" o" o" o" o" m GOOOOOOGOO * G 00 C"i G fO "^cO r^^ t"^ Q\ it! +-> tfl ^^ OJ ^^ 0^"00NLOG"t^0N 5 ' vO r^ CO 0\ — r^ On G O CO bC'XJ 3 *>5=M0 CO o^ ON rooo ON f^ ON 'St3^ • • 01 W Cl 1— ( K^ h-t O o '"^ ".4- _b ?^ -2j 0-- " rt .2-0-^ g oiC 3 S o o o o o O O o o o GGOOOGGOGGOOOO .S'ot: 0^ o o o o o o o O G O OOGOOOOOOGOOOg :- re c ^ 2 o o o o q^ o o °„ °^ o O^ 0_^ O O O O G G O G G O 0_^ 0_ PhPii-h<; d 6 o o" o" o" d o' o' o" g' o' d o" g' o" d o' o' g" d d o o ^ -»-«-^ P o o o o o o o o o o ^ OCO 1^^ GOOOGGGOGGGOOg "-• N CO r^ q ro oi CO vo ON lo onX) cOr^ro-^O ■- « 0.°-, ro un T? lo Tf J" o" m" o' ^ c-rvd" '^^ ;?" rt ^^ m" c5" ro N roON H-T roco" O Tf VOOO OO oo lO o^ a\co ^ \0 ^01 "-00 '-n\o ^ "^^ H ^•^. or of cT or « i-T M " <"' 5 o s M o o GOGOGOOOO ■3 . • o o ■ " ■ ■ ■ "GOGGGOGOG >> ^ i2 (U o o o_^ O^ q G_^ G_^ q 0_^ o_ G_ c ^1 o o" o" ■ g"" o' d d d d o" d g" ° s-S ^ o o GOOGOOOOO ^,'S ^'> • ^ rooo 01 • i^ On O ^■;: c S 3 o" oo Onvo" ro ^1" 'I • « Tt- 1^ ^6e= O^ II 1 cl 1 bjo o o o o o o o o o o o .OOGOOGOOOGGOO C o o o o o o o o GOG OGGOGOGGGOOOO o ^ .S *C q q_ q_ q^ q_ q^ °^ °^ °, ° °-, o o G_^ q q^ G_^ o_ q^ o^ o_^ g_^ q^ o_^ '?'i o o~ d d o d o" o" CD o' o" g" o" o' d g' g' o" o" g" g" g" o' o " s ° o o o O o O o o O n O ^. GOOGOGOOQOGOG ^•°- T, ik s c^ Lo ^ t^ u-) O HH u-i O r^ "^ ^ ■ c^ 1- vo r^ - "^ f^ q <~i, ''2 "^ ^ ^i Sco ^ rC cR i^MD rC rooo' CT\ roco" ^ rf lO ^ ON d or -^O --Ovd ^ Ifl • HH \o ro -^^ O 01 01 C^ 01 « 0) o> ON o t^ r-^ >-__ r-^ r^ o_^co a! "^ roror^ r^ r^ u^oo CO CO ■* C ■sj vj ►^5 s «u oT m" w i-T 1- Ills « ojS^ — — o o o m o U-) o lOO irio irio u-)0 mo mo lOO loo voo VOSK' 00 00 Ol Ol o o M M N N ro to •* * to lOlD lo t^ r^oo ot oi en x, x sisv,-~ > t^ i-^ t>. t^oo 00 00 00 00 00 00 00 OOOOOOOOOOCOOOOOCOOOOOOO ^'^" e M M M M M M M M M M M § i86] National Debt. 425 was issued. This has been reduced to ^347,000,000, and with outstanding fractional currency and some other items makes the non-interest-bearing debt of the United States about ^389,000,000. From the aggregate of funded debt and non-interest-bearing debt, which is now about $1,300,000,000, is to be subtracted the cash in the treasury (except several hundred milhon dollars held there for the specific redemption of various forms of treasury notes and certificates). That cash balance is always kept at something over $100,000,000, and sometimes reaches $200,000,000 or $250,000,000. Mak- ing these deductions, the actual indebtedness of the United States on December 31, 1902, was $947,000,000. At present there is an annual surplus applicable to the reduction of the debt, and there has repeatedly been a strong movement to retire the greenbacks. One serious difficulty is that the cur- rency system of the national banks is based on government bonds, and if the debt is paid all the national banknotes will have to be called in. The sentiment of the country, how- ever, is strongly against a continuous national debt ; and ten years of prosperity should be sufficient to bring us again to the happy condition of 1836. The rate of interest paid by the United States has varied with the conditions of the money market and the necessities of the government. The loans of the Continental Congress usually carried 6 per cent ; under the funding system of Hamilton, bonds were issued at 6 per cent and 3 per cent. During the War of 1812 the government refused to offer more than 6 per cent, but was obliged to sell its bonds far below par, so that the $80,000,000 incurred probably did not net more than $74,000,000 in specie values. This meant that the government paid from 8 per cent to 10 per cent for its money, and then had to pay a bonus of $6,000,000 when the trans- action was completed. During the Civil War much the same process was adopted : no bonds drew more than 6 per cent, but there were times when $1,000 in gold would buy $2,500 worth of bonds paying 6 per cent interest in coin ; that is, the 426 Public Finance. [§ 186 lender got 15 per cent on his money, and eventually received back two and a half times his investment. The reason was simply the doubt whether the United States would be able to redeem its promises. A large share of the borrowings during the war were for very short terms; it was not till 1869 that the great part of the debt was funded in 5 per cent and 6 per cent bonds. By this time the credit of the government had so improved that it began to issue bonds at reduced in- terest : by 1880 no interest was offered higher than 4I per cent; in 1891 a lot of 4| per cents fell in and were continued at 2 per cent. At present the United States can borrow any amount at 2| per cent, and even at 2 per cent, for it has the best credit in the world. This low rate of interest is obtained because the govern- ment scrupulously redeemed its promises on the Civil War loans, and because government bonds are absolutely free from any tax by state or local governments; so that a 2^ per cent United States security may perhaps net as much as a 4 per cent railroad bond. By the reduction of the debt and the improvement of the public credit, the interest charge, from one of the heaviest items of national expenditure, has become one of the lightest. In 1867 the interest was ^144,000,000; in 1902 it was only ^29,000,000. The public debt has been expressed in many different forms, of which the most important are the following : — (i) The bonded debt, expressed in a formal engraved bond. In order to attract investors, there is usually a provision that bonds cannot be called in before stated periods, which may be five, ten, or twenty years. When the government has a surplus available for debt redemption, and no bonds are yet due, it buys them in the open market, often at considerable premiums, and thus disposes of the surplus and at the same time cuts off interest. United States bonds are a favorite in- vestment, because secure, and because they are the legal basis of the national bank notes. Coupon bonds are furnished with engraved coupons for each interest payment, which may be s 187] Reforms. 427 deposited like checks in any bank. Holders of registered bonds receive their interest by government check. (2) The treasury note. This is an interest-bearing prom- ise to pay, usually running one, two, or three years. Such notes have been issued in every time of financial stress, — as, for instance, during the War of 181 2, in the financial depres- sion of 1837 to 1842, and during the Civil War, when hun- dreds of millions of such notes were issued bearing 7.3 per cent interest. Since the Civil War no resort has been had to this form of borrowing. (3) Circulating paper money. Although suggestions were often made that this resource be used, it was not actually employed until 1861, and in 1862 began the first legal- tender notes. 187. Reforms in Public Finance. From the two chapters on financial functions, we may see in what direction improvements ought to proceed. The prac- tical division of taxation, by which the federal government depends almost entirely on indirect taxes, — imposts or con- sumption duties, — leaves to the state and local governments almost the whole field of land, property, franchise, license, suc- cession, and miscellaneous taxes. The advocates of a single tax, to be laid on real estate, make a strong case, because all occupations and franchises must have the use of land and can be reached in that way ; but no state has so far shown a dis- position to give up personal taxes, and many states find direct corporation taxes easy to levy and very productive. It is desirable that vexatious taxes producing small amounts and expensive in application, such as state income taxes, should be abandoned. A great reform may be made in the methods of assessment, by creating more permanent and responsible and better-paid boards of tax assessors : over-estimates lead to vigorous objec- tions, and often to resort to the courts, but an error or fraud or any under-assessment of real estate is likely to pass unques- 428 Public Finance. [§ 187 tioned. The ordinary personal-property tax is unfair, because it is evaded in whole or in part by fully three fourths of the tax-payers, and the other fourth have to bear an unreasonable share of the burden. The national taxes are productive, and are easily and cheaply collected. The chief practical difficulty in administering them is that the tariff is laid for two purposes, which really conflict with each other : so far as it brings in revenue, it is not pro- tective ; so far as it is completely protective, it shuts off reve- nue. In the effort to distribute protection, the tariff is assessed on more than i,ooo different articles, and cannot fairly be laid and collected because no appraiser is wise enough to find the value of so many articles. At present all forms of government in the United States are acquiring property : parks, forests, and reservations increase ; public buildings of every kind are multiplied ; the trend seems distinctly to be toward a municipal ownership of waterworks and of gas and electric Hght plants; and in 1902 the people of Chicago voted by a great majority that it was expedient for that city to acquire the car lines. This throws an additional responsibility upon the governments, and emphasizes the neces- sity of experts to manage public property. With the exception of the national government, every Ameri- can government has some kind of budget ; but in no state, and in few cities, is there any one official who keeps a firm hand on the relations between income and outgo. The mayor, and to some degree the finance committees of city councils, con- sider the city finances together ; and in a few cities, notably New York, the budget of expenditures and taxation is made up by a small board of apportionment or estimate, and is not voted on by the city council. What we need is a stronger sense of the importance of concentrating financial responsibility and supervision in a few hands. In the United States, public expenditures usually go directly to public purposes. In state governments, and still more in city governments, there are some sinecures, and many cases § 187] Reforms. 429 where two or three men are paid to do the work of one. In other words, though the items of state and city expenditures are almost ahvays for the public good, it takes more money to accomplish the purpose than in private corporations. States and cities skimp the salaries of the most important public officers, so that it is a sacrifice for the best men to accept public service : policemen, clerks, firemen, and laborers are often much over-paid in comparison with the servants of railroad and manufacturing companies. The public suffers great loss also from not working out in advance careful schemes of public improvement, so as to do first what is most needed, and to avoid doing things several times over. The sums spent in digging up Fifth Avenue in New York City and then filling it in again would long ago have built a tunnel from end to end, sufficient to hold sewer, gas, water, and electric mains, and everything else that needs to go below the surface. Public debts are in general a great public advantage : but over-borrowing brings about ruin, as has been shown in the two epochs of repudiation by the states, and in the bankruptcy of small cities ; and Americans are too apt to borrow money for temporary needs, instead of facing the taxation which must eventually pay for all public expenditures. One danger arising from foreign public debts does not apply to the United States : the $6,000,000,000 of French debt, with an interest charge of about $200,000,000 a year, is really a payment by one part of the French population to another part ; sometime the burden of interest will become such that there will be a revolution, and a scaling, or repudiation, of the debt. In the United States, where the total burden is not a fifth as great per capita, and where the country is extremely rich and productive, this danger can hardly come about, especially since the bonded debts of railroads alone far surpass the total public debt within our borders. Part VIII. External Relations. CHAPTER XXIII. FOREIGN INTERCOURSE. 188. References. Bibliography: A. B. Hart, Foundations of Am. Foreign Policy (igoi), ch. viii; A. B. Hart, Monroe Doctrine (1916), pt. vi; Cyclop, of Am. Govt. (1914), I, 66, 218, 450, 591, 595; II, 38, 468; III, 569, 571, 701; A. B. Hart, Manual (1908), §§ 73-86, 121, 122, 226, 297; E. McClain, Constitutional Law (1910), §182; Macy and Gannaway, Comparative Free Govt. (1915), 724 (cases); Channing, Hart, and Turner, Guide (1912), §§ 155, 157, 171, 181, 183, 187, 198, 212, 224, 238, 244, 257, 263, 267, 268; J. B. Moore, International Arbitrations (1898), I, Ixxxiii- xcviii; bibliographies and footnotes in the treatises on international law. Diplomacy: J. B. Moore, Am. Diplomacy (1918); E. McClain, Constitutional Law (igio), §§ 133, 134; J. W. Foster, Practice of Diplo- macy (1906), chs. i-xi; J. H. Latane, America as a World Power (1907), ch. vi; J. W. Foster, Century of Am. Diplomacy (1901); Cyclop, of Am. Govt. (1914), Arts, on Arbitration and Peace; Claims, International; Consular Service of the U. S.; Diplomacy and Diplomatic Usage; Diplo- matic Service of the U. S.; Foreign Policy of the U. S.; International Law, Influence of the U. S. on; Monroe Doctrine; World Power, United States as a; F. Van Dyne, Our Foreign Service (1909); G. Hunt, Depart- ment of State (1914); J. Bryce, Am.. Commonwealth (ed. 1910), II, chs. xcvi, cxvi; A. B. Hart, Fomidations of Am. Foreign Policy (1901); A. 'B.'Rs.xt, Monroe Doctrine (1916). — Sources: Memoirs and correspond- ence of diplomats; J. B. Moore, International Arbitrations (1898); J. B. Moore, Digest of International Law (1906); Am. State Papers, Foreign (period 1 789-1828); Foreign Relations (annual volumes since 1861); J. D. Richardson, Messages of the Presidents (1896-1899); A. B. Hart, Contemporaries (1897-1901), II, §§ igg, 216, 217; III, §§ 48- 53, 92-99, 128, 142-150; IV, §§ 14, 98-100, 173-179, 192-196; C. A. Beard, Readings in Am. Govt. (1909), ch. xvi; P. S. Reinsch, Readings on Am. Federal Govt. (1909), chs. iv, xii. I. Treaties: On the principles of negotiation, see the treatises on international law, especially E. Hall, International Law (7th ed., 1917), ch. x; J. W. Foster, Practice of Diplo^nacy (1906), chs. xii-xv; J. B. Moore, Digest of International Law (1906), V, §§ 734-896; C. Calvo, 430 §189] Foreign Policy. 431 Droit International (4th ed., 1887-1896), III, 373-404. — On the rati- fication of treaties by the Senate, see ch. xiii; C. H. Burr, Treaty-Making Power (1912); E. S. Corvvin, National Supremacy (1913); Cyclop, of Am. Govt. (1914), Arts, on Treaties as the Law of the Land; Treaties of the U. S.; Treaties in International Law; S. B. Crandall, Treaties (2d ed., 1916); W. W. Willoughby, Constitutional Law (1910), I, chs. xxxii-xxxv. — Text of treaties: W. M. Malloy and G. Charles, Treaties and Conventions ly/d-igi^ (1910-1913); Statutes at Large. 189. History of American Foreign Policy. No function of American government is so centralized as the foreign relations. The constitution not only gives to the presi- dent and Senate sole power to make treaties : it also bestows on Congress exclusive povver to regulate commerce with foreign nations, to punish offences against the law of nations, to declare war, to raise, support, and govern armies and navies ; it provides that no state shall enter into any treaty, alliance, or confederation, or lay any duties on imports ; or tax exports if Congress objects, or without the consent of Congress keep troops or ships of war in time of peace, or enter into any .igreement or compact with a foreign power; or engage, in war unless invaded ; while to the federal courts it gives jurisdiction in almost all cases involving foreign relations. This exclusive power dates back to colonial times : the English colonies had no authority to enter into relations with foreign countries ; they were bound by treaties made between England and foreign powers, and were drawn into wars not of their own choosing. From 1775 to 1789 the states had some control over foreign relations, and could legislate on foreign commerce ; but they were represented in foreign courts only through ministers appointed by Congress, and no state made any arrangement or treaty with a foreign power on its own account. The foreign powers of the new federal government were almost immediately invoked by the breaking out of the French Revolution, followed in 1792 by war in Europe, which continued with but one year of peace till 1 8 15. In a proclama- 432 . Foreign Intercourse. [§ 189 tion of April, 1 793, President Wasliington laid the first stone in our national policy by his neutrality proclamation. The aggressions of both England and France made the carrying out of this policy a difficult task: in 1794 we were on the verge of war with England; in 1798 we engaged in naval war with France. Nevertheless, these troubles were healed, and until 181 2 we were at. peace, except with the Barbary Powers. The splendid naval victories of the War of 1812 gave us a favorable peace, and so much prestige in diplomatic affairs that from that day to this few powers have wilfully antagonized the United States. A period of great territorial expansion now set in : Louisiana, Oregon, West Florida, and East Florida were annexed from 1803 to 1819. Meantime a new group of international neighbors grew up in the Latin- American states ; and in 1823, in their behalf, Monroe reiterated the principle that the United States would not intervene in foreign difficulties, but he coupled with it the declaration that foreign powers must not interfere in quarrels not their own in America. Until the annexation of Texas, New Mexico, and California, in 1845 to 1848, the country was chiefly engaged in develop- ing the West. California, however, brought up the question of isthmus transit and a canal, a matter Avhich continued a storm centre of diplomacy for half a century. The Civil War brought two great international difficulties, — the fitting out of Confederate cruisers in British ports, and the attempt of France to conquer Mexico. As soon as the war was over, the United States took up these problems and settled them both to its satisfaction. The question of Cuba and the control of the West Indies then became important, and from 1868 to 1897 busied our diplomats. That question led to the Spanish War of 1898, as a result of which Cuba became a dependency of the United States, and the Spanish possessions of Porto Rico and the Philippine Islands were annexed to this country. Although since the Revolution the United States has engaged in five foreign wars, — the French in 1798, the Barbary in §190] Diplomatic Representatives. 433 1803-1804, the English in 1812-1815, the Mexican in 1846- 1848, and the Spanish in 1898, — its purpose has been essentially pacific in all except the Mexican War. The main principle of American diplomacy is to keep out of complica- tions in Europe, and at the same time to prevent violent and destructive changes anywhere in America. 190. Diplomatic Representatives. Foreign relations do not adjust themselves, nor are they adjusted simply by principles of mutual interest. The relations between nations are regulated first of all by international law, — that is, by centuries of precedents and agreements, — and are recorded by treaties ; and both international law and treaties must be applied by individuals organized in a regular foreign service. The official head of the diplomatic service is the president ; and most men in that office keep close relations with the Department of State. Under the constitution, the president formally receives foreign ambassadors ; but it is very unuslial for him personally to discuss diplomatic matters with a foreign minister, or to write personal letters to a foreign government. Many of the presidents before 1861 were experienced in the diplomatic service : John Adams, Jefferson, Monroe, John Quincy Adams, Van Buren, and Buchanan had all ^ been accredited ministers abroad, and each took special interest in foreign affairs while president. Next in power comes the secretary of state, who in other countries would be called minister of foreign affairs. It is his duty to draw up instructions for ambassadors, to keep in correspondence with them, to discuss matters with foreign representatives, and personally to conduct negotiations and frame treaties in Washington. Few officers of government have such an opportunity to set their mark on their country's history and to affect their country's destiny. The secretary- ship of state has been held by some of the most eminent Americans, among them Jefferson, Madison, Monroe, John 28 434 Foreign Intercourse. [§ 190 Quincy Adams, Henry Clay, Martin Van Buren, Daniel Webster, Johin C. Calhoun, William L. Marcy, Lewis Cass, Edward Everett, James Buchanan, William H. Seward, Hamilton Fish, James G. Blaine, John Sherman, and John Hay. The president appoints the members of the diplomatic service (subject to confirmation by the Senate), and may remove them. Washington, for instance, recalled Monroe from France in disgrace in 1796; Jackson recalled General Harrison from Colombia in 1829; Mr. Motley was removed from the Austrian mission by President Johnson in 1867, and from the mission to England by President Grant in 1870. Foreign representatives are accredited directly to the presi- dent, and he may refuse to hold diplomatic relations with men who are offensive to him : President Madison declined to allow further correspondence with James Jackson, the Eng- lish minister, in 1809; and General Grant in 1871 demanded the withdrawal of Catacazy, the Russian minister. It is a disputed question whether the president may appoint foreign representatives without previous provision for their salaries by act of Congress. Of course no legation can be permanently maintained if Congress refuses to vote money for the necessary salaries, though President Grant in 1876 pro- tested against a bill for discontinuing a legation :' but presi- dents often appoint commissioners for special exigencies. For instance, in 1887 Mr. Cleveland appointed a commission to negotiate a fishery treaty with Great Britain, and in 1893 des- ignated Mr. Blount as special commissioner to investigate the state of things in the Hawaiian Islands. No qualifications for ministers are prescribed by the consti- tution or by law ; but most appointees have already seen public service of some kind in Congress, in the state govern- ments, or in the federal civil service. It is unusual to appoint actual officers in the army or navy, even as special commis- sioners. Since it costs a great deal of money to keep up a legation, wealthy gentlemen of public spirit are often § 19°] Diplomatic Representatives. 435 appointed, and prove excellent ministers. As a minister is expected to establish friendly relations with the people to whom he is sent, it is very desirable that he should speak the language of their country ; but there are many instances in which American ministers cannot even use French, which is the usual intermediate language in diplomatic circles. Amer- ican ministers are of course subject to the same rules of acceptance by foreign countries as are applied in Washington : in 1885 the Austrian government refused to receive Mr. Keiley as minister, one ground being that his wife was a Jewess ; and there was nothing for it but to appoint some one else. The diplomatic representatives of the United States are divided into four categories : ambassadors ; envoys extraordi- nary and ministers plenipotentiary ; ministers resident ; and charg(^s d'affaires, who are diplomatic subordinates, for the time being put in charge of the business of the legation. Special commissioners, a fifth kind of representatives, are often appointed to sit on arbitrations, or to adjust claims and boundaries. The dignity of ambassador was not created until 1893, and is enjoyed only by the representatives sent to and from Great Britain, France, Germany, Russia, Italy, Austria, and Mexico. Every legation has one or more secretaries, who often remain for many years at their posts in order to keep up the traditions of the legation. Sometimes the United States sends special ambassadors, as on the occasion of the corona- tion of Edward VII in 1902. The term of a foreign representative is not fixed by law, but there are always numerous changes when a new president comes in ; so that eight years is about the limit of an ap- pointment. Mr. Marsh, however, was minister to Italy from 1 86 1 to 1882, serving under six presidents. Secretaries of legation sometimes are promoted to small diplomatic posts ; but the diplomatic service has offered no career in which a man could expect to rise to an important life position. Under Presidents McKinley and Roosevelt there have been frequent cases of transfers of successful ministers from one post to a 436 Foreign Intercourse. [§191 larger one : thus, Mr. Hardy has been minister to Persia, Greece, Switzerland, and Spain. Ministers have a special right to protection by the author- ities of the countries to which they are accredited : no min- ister, and no employee or servant of a minister, may be arrested on civil suit ; no police may enter the premises of a minister ; and in disturbed countries, like those of South America and the Orient, ministers may give protection to refugees in time of revolution. The highest salaries paid to diplomatic representatives are $17,500 to each of five of the ambassadors; the lowest are $1,200 for a third secretary of legation. These salaries are low in comparison with those paid by foreign powers for similar services : the British minister at Paris has a salary of $40,000 a year, with a splendid house and many small expenses borne by his government. Indeed, no American can accept a mission to a first class power unless he has private means in addition to the salary. Notwithstanding the somewhat haphazard way in which ministers are appointed, and their frequent lack of the qualifi- cations expected in the foreign diplomatic service (such as previous public service, social distinction; and knowledge of the languages), the United States has seldom failed to obtain what it desired because our minister was not up to his work. In these days of ocean telegraphs, the minister constantly refers home for instructions, and takes no important steps without the direction of the secretary of state ; and our very simplicity, directness, and lack of form often make it easier to get at the kernel of the matter in controversy. 191. Consuls. Apart from the diplomatic representatives are the com- mercial representatives, the consuls. Since 1778 the United States has appointed and received consuls, who are accredited to particular places, especially the seaports, and are expected to represent the trade interests of their country. The grades -M 20' "diplomatic and consular offices OF THE UNITED STATES IN EUROPE EXPLANATION Ijcpatton £3 Consulate General .-♦• Consalate • § i9i] Consuls. 43/7 of the service are as follows : consul-general, consul, vice- consul, consular agent. The consul-general acts as consul in the capital of the country to which he is accredited, and also supervises the other consuls in that country ; the vice-consul is simply a substitute for a consul for the time being ; the consular agent is a kind of deputy for a consul. The consuls are appointed by the president and confirmed by the Senate, and receive salaries ranging from ^1,000 to ^4,000; those of the consuls-general run up to ^7,500. Official fees are not added to the salary ; but unofficial fees, such as the acknowl- edgment of papers, are retained by the consuls, and sometimes amount to several hundred dollars a year. Most of the consuls are men who have no other business. The United States appoints few merchant consuls ; but it is common to have a vice-consul or a consular agent who is a citizen of the foreign country. Such persons, or paid clerks, are likely to transact most of the consular business. Although in 1856 the consular service was divided into classes, and in 1864 thirteen consular clerks were created as a means of entrance to the service, those clerks are not pro- moted ; but transfers from smaller to larger regular consulates, once rare, have now become frequent. Foreign consulates are much prized, although the pay is small ; for Americans like to visit and live in foreign coun- tries. Hence a powerful political pressure is brought to bear on the president and secretary of state ; and most consuls are appointed, not because they are acquainted with business in general or with the trade of the places to which they are going, but because they have been useful in the campaign or the party. Under each administration there is a new crop of expectants, who can be provided for only by removing the previous occupants ; therefore the consular service has been one of the branches most systematically disturbed for political reasons. Since 1895 various attempts have been made to reform the consular service by admitting men to the lower grades 438 Foreign Intercourse. [§191 on examination, and then promoting and transferring them according to the needs of the service ; and eventually this policy must prevail, for the development of American com- merce abroad is much impeded by a service which contains many good and conscientious men, but which neither pro- motes nor keeps in office those who have proved their competence. The 300 consuls and 30 consuls-general are all subject to the general rule of international law that no functions can be exercised until the " exequatur " is received, — that is, the official recognition of the government to which they are accredited ; and both in the United States and in foreign countries the exequatur is sometimes revoked, and the con- sul is thus cut off from all official action. A famous instance was the withdrawal of the exequatur of the French consul at Boston in 1793. Consuls are not entitled to the immunities of diplomatic representatives ; they may be sued for ordinary debts, although by treaty many countries agree that they shall not be subject to civil arrest or to the seizure of archives. The official functions of consuls are as follows : — (i) They have commercial duties, pertaining to the movement of trade between the two countries : for instance, they certify invoices of merchandise exported to the United States, and look after American sailors who are ill or stranded in foreign ports. Consuls also act as notaries for the registration of various legal papers ; and they make periodical reports on the trade of the country in which they live, with especial reference to com- merce with the United States. These reports may be on any subject which seems significant, and considerable extracts from them are published in the official serial known as Consular Reports. A consul at Three Rivers, Canada, who in 1891 introduced into his report some criticisms of the people of the place, saw his opinions printed in full, with the result that he was shortly transferred from his post. (2) Consuls have several judicial functions: they investi- gate difficulties or crimes that have occurred in American § 192] Treaties. 439 ships on the high seas ; and they may hold a kind of court to examine charges of cruelty. In many partly-civilized coun- tries, especially in Asia and the Turkish dominions, where Americans have no confidence in the local courts, consuls act as judges in cases involving two Americans or an American and a native. Such courts may actually condemn citizens of the United States to death for crimes committed in foreign countri^, if the minister approves of the conviction. Similar powers are exercised in such countries by consuls of other foreign countries ; but they have more distinctly defined juris- dictions, with opportunities for appeal to their home courts. (3) Consuls have a variety of social functions not set forth in their instructions : they are expected to invite distinguished visiting Americans to dinner ; to lend money to the American whose draft has not come ; to recommend lodgings, and to quarrel with the proprietors if the tenants are dissatisfied. A former consul at Geneva declares that he was called upon to tell where real American chewing tobacco could be obtained, to forbid the French government to examine a lady's trunk at the frontier, and to decide how "bombshell" should be pro- nounced. The wise travelling American earns the gratitude of his consul and his minister by calling upon them only when he is in a difficulty from which an experienced official can and should help him out. 192. Treaties. The treaty, or solemn agreement, between two countries is as old as history : a treaty between Corcyra and Athens brought on the Peloponnesian War. In colonial times, all treaties made by England were for the colonies as well as for the home country ; thus, by successive agreements with France, the boundary of the English possessions in America was ex- tended. During the Revolution the treaty-making power for the new states was by common consent vested in Congress, which commissioned ministers to most of the European courts, and in 1778 secured an inestimable treaty with France, under 440 Foreign Intercourse [§ 192 which French ships and soldiers came over and made possible the military success of the Revolution. The treaty of peace of 1782 was the first of many agreements with England. The treaty-making power of the Confederation was incom- plete because it did not extend to commercial questions ; but by the constitution of 1787 the power was made unmistakable, for the states were deprived of all control over commerce, and power was given to the president and Senate "fo make treaties," a clause which is interpreted to mean treaties on any subject within the field of the federal government. Since that time about 300 treaties have been made and ratified, besides those that have failed. Among the most important agreements are the treaties of peace with France (1800), Great Britain (1814), Mexico (1848), and Spain (1898) ; the commercial treaties with England (1794, 1815, and 1854), China (1844), and Japan (1854) ; the boundary treaties with England (1818, 1842, and 1846) ; the canal treaties with Colombia (New Granada) (1846) and England (1850 and 1902) ; the German treaty on citizenship (1868) ; the Treaty of Washington settling the Alabama difficulty (187 1). The United States has assented to various general treaties, such as postal conventions; and also to the agreement of 1885 on the Congo Free State. When a treaty is negotiated abroad, a special commission composed of several persons is often appointed. For in- stance, Pinckney, Gerry, and Marshall were sent to France in 1797; the treaty of peace of 18 14 was negotiated by five commissioners — Clay, Gallatin, John Quincy Adams, Bayard, and Russell; and that of 1898 at Paris by five commissioners — Day, Davis, Frye, Gray, and Reid — of whom three were members of the Senate. Most negotiations, however, are carried on by our Ameri- can minister at the foreign court, under instructions from Washington ; or in this country by the secretary of state with the foreign minister. Of this latter kind are the treaties of 1842, 1846, 187 1, and 1902, with Great Britain. In 1891, § 192] Treaties. 441 when a conference was being held with representatives of Great Britain and Canada, Colonel Foster as a special com- missioner made some statements which he said were author- ized by the president ; Secretary Blaine thereupon withdrew from the room, on the ground that as secretary of state the president's wishes should be made known only through him. In drawing up important treaties, it is common to write out a sort of journal of the conferences, known as a " protocol," in which appears a joint statement of what is proposed and answered, with copies of papers which are handed in. No negotiations can be carried on except through persons officially accredited for that purpose by the president. In 1806 Dr. Logan attempted to get from the French govern- ment information which had been refused to our minister ; the result was a statute making it a criminal offence for a private individual to assume any diplomatic functions with a foreign power. Few treaties are ever negotiated without knowing before- hand the mind of the president on the general issues ; never- theless, if the negotiators come to an agreement and sign a treaty, it is not binding on the president, who may at his discretion stop it there, without referring it to the Senate. Thus, Jefferson held back the treaty with England in 1806; and President Cleveland in 1893 withdrew a treaty for the annexation of Hawaii, which was pending in the Senate when he came into office. The constitution provides that treaties shall be made " with the advice and consent of the Senate . . . provided two-thirds of the Senators present concur." The word " advice " sug- gests that the president may consult the Senate in advance ; and President Washington, in 1789, came personally upon the floor of the Senate and asked the advice of the Senate then and there. Somewhat fearful of the majestic presence of the great man, the Senate referred the matter to a committee ; and that was practically the end of any attempt by the president to hold official personal council with the Senate. Still, every 442 Foreign Intercourse. [§ 192 prudent president discusses the chances of a treaty with his leading senatorial friends ; and presidents occasionally sound the Senate by messages. Polk, in 1846, formally called upon the Senate to inform him whether it would ratify a compro- mise boundary in Oregon, and received the desired assurance. If the president approves the treaty submitted to him, he then sends it to the Senate for ratification; there it is referred to the Committee on Foreign Relations, the chairman of which is really a sort of congressional secretary of state. If, as often happens, the committee is not interested in the treaty, it may remain for months unregarded, although the Senate has power to call it up at any time. The necessary two-thirds vote of the Senate has almost always been obtained for treaties of peace and for the adjustment of dangerous diplomatic contro- versies ; indeed, the necessity of a two-thirds vote is so patent that a president seldom comes to an agreement with a foreign country without a reasonable assurance beforehand that the treaty will be ratified. In 1795 Washington, by his utmost personal influence, got a 24 to 12 vote for the Jay Treaty; in 1869 the Johnson-Clarendon Convention for the settlement of the Alabama question had only one vote in its favor. An interesting case is the treaty of 1844, for the annexation of Texas : it was held for six weeks by the Committee on Foreign Relations in order to affect a nominating convention, and then was voted down. The Senate does not always accept the alternative of approv- ing or rejecting a treaty : it often makes amendments, a step which of course involves a new discussion with the foreign country. If the amended treaty is accepted by the foreign power, it is not necessary to submit it a second time to ratifi- cation ; if it is not accepted, the treaty fails. Such was the case with the Hay-Pauncefote Treaty of 1900, which was so amended by the Senate as completely to alter its tenor. A treaty ratified by the Senate is still not valid till ratified by the other power : Thus, the Florida Treaty was hanging uncertainly from 1819 to 1821. When ratifications are once § 192] Treaties. 443 exchanged, the president may still withhold the ofificial procla- mation ; but the treaty is complete so far as the foreign country is concerned : a failure to carry it out would be good ground for diplomatic complaint, and might be a ground for war. Here arises the very important question of the relation of the House of Representatives to the treaty-making power. In 1 796 a bill was introduced to appropriate money to carry out the Jay Treaty ; the House called on President Washing- ton to send explanatory papers, and he declined to do so, on the ground that he was under no obligation to explain his diplomacy to the House, since the treaty was already the law of the land. After a long debate, the House by the. narrow vote of 5 J to 48 made the necessary appropriation. The same question has been raised many times since. Sometimes a treaty contains a stipulation that it shall not go into effect until Congress has passed the necessary laws, and such a treaty with Mexico in 1883 failed because the House would not take action. Of late years the House has been inclined to claim that no treaty which alters the duties on imports is valid without its assent, a difficulty which was avoided by the act of 1890, authorizing the president to make reciprocity treaties on cer- tain conditions. But the president and Senate, under the constitution and the practice of a century, need no permission to make commercial treaties which alter the tariff, and they are subject to no special limitations : that power has been exer- cised at least fifty times. A treaty supersedes a law ; but ^ law of later date equally supersedes a treaty, as was shown in 1798, when Congress by statute declared all the French treaties invalid and extinct. It would be presumed that a general tariff law was not intended to supersede special treaty rights secured by foreign nations through concessions on their part ; but it is perfectly com- petent for the president and a majority of both houses to destroy the effect of a treaty by hasty legislation. They did so in 1 88 2, by passing an act to prohibit Chinese immigration, 444 Foreign Intercourse. [§ 193 in the face of a treaty allowing it. The only recourse of an offended foreign country in such a case is to protest that a contract with it has not been observed. 193. The United States as a "World Power. A discussion of our diplomatic machinery throws little light upon the question of the real place of the United States in international affairs. The original United States was a very feeble power, even in the conditions of the eighteenth cen- tury ; it was not even the strongest power in America when it was created ; and to this day, England has greater territory on the North American continent, besides many West India Islands. A wonderful growth in population and resources speedily gave the United States the first place. By the annexations of Louisiana, West Florida, and East Florida, it made itself supe- rior to Spain ; after the Napoleonic wars France ceased to exercise much influence in America ; and the British posses- sions have never had such population or wealth as to vie with the United States. Since 1815, therefore, the United States has been undisputedly the leading power in America, and none of the fragments of the former Spanish empire have ever shown the capacity to come abreast of this country. The introduction of steam navigation across the ocean in the thirties brought us in time and cost of travel and transpor- tation much nearer to Europe; and from about 18 15 to i860 we were negotiating commercial treaties with European powers and with other American countries. In the forties and fifties it looked as if the United States and Great Britain would ami- cably combine to control the Americas : the Clayton-Bulwer Treaty of 1850 was a recognition of England's equal interest in an isthmus canal; the Reciprocity Treaty of 1854 greatly stimulated commerce with Canada. Meanwhile the United States was reaching out into the Pacific. About 1820, missionaries went to the Sandwich Islands; in 1844 we made the first commercial treaty with § 193] A World Power. 445 China; the annexation of CaHfornia immediately followed, giving us a more advantageous Pacific front than that of Oregon ; and in 1854 we broke in the crust of Japan, and be- gan trade with that country. In 1861 the United States was reaching east and west for trade and intercourse, and was recognized as the power upon the whole most concerned in Central and South American affairs. The Civil War brought about difficulties and quarrels with both England and France ; and it took ten years to settle the two questions of the Alabama claims and Mexico. The isthmus problem now returned ; and it became evident that the American people had an ever stronger sense of their para- mount interest on the continent. In the war of 1898, for the first time the United States decisively entered the Caribbean Sea by assuming the protectorate of CuTde and by annexing Porto Rico, thus acquiring points of military vantage in the Gulf of Mexico. The United States in 1903 is by far the most powerful of American nations : it is firmly seated in the Caribbean Sea, is about to set foot on the isthmus, and has a vantage ground on the Asiatic coast ; and it is accustomed to take part in international discussions. With great physical capacities, with a restless, energetic people who love to travel and to come into new experiences, the United States, by its annexation of the Philippine Islands in 1898, became an Asiatic power. Two years later, in the Boxer insurrection in China, it joined the other powers in recovering the ambassadors at Pekin, and came forward again and again as the advocate of moderation and of justice ; and its influence was successful. Our rela- tions with Europe are those of peaceful trade ; but in any great crisis which may come to mankind in the future the United States must inevitably take a part as a world power, and that part is likely to be in favor of peace. CHAPTER XXIV. FOREIGN COMMERCE. 194. References. Bibliography: A. B. Hart, Manual (1908), §§ iig, 120, 221, 225; Cyclop, of Am. Govt. (1914), I, 265, 344; II, 147; III, 441; Channing, Hart, and Turner, Guide (1912), §§ 171, 181, 189, 190, 194, 200, 201, 253, 257, 258, 263, 268; E. R. A. Seligman, Economics (6th ed., 1914), § 210. See also references in chs. xii above, xxvi below. Imports and Expoj^ts: R. L. Ashley, Am. Federal State (1911), ch. xxvii; E. R. A. Seligman, Economics (6th ed., 1914), §§ 211-216. — Statistics : Monthly Summary of Commerce and Finance; Foreign Commerce atid Navigation; Statistical Abstract. Immigration: J. R. Commons, Races and Immigrants (1907); P. F. Hall, Immigration (2d ed., 1908); A. Shaw, Political Problems (1907), ch. iii; H. P. Fairchild, Immigration (1913); Jencks and Lauck, Immi- gration Problems (191 2); M. R. Coolidge, Chinese Immigration (1909); J. H. Latane, America as a World Power (1907), ch. xvii; Industrial Commission, Report (1900-1902), XV; XIX, §§ 957-1030; A. B. Hart, National Ideals (1907), ch. iii; Cyclop, of Am. Govt. (1914), Arts, on Chinese Immigration and Exclusion; Immigration; J. A. Riis, How the Other Half Lives (1890); R. Mayo-Smith, Emigration and Immigra- tion (1890). — Sources: Immigration Restriction League, Publications, etc.; Commissioner of Immigration, Annual Report. See also references to ch. i above. Regulation of Commerce: The constitutional power is discussed in the constitutional treatises, especially. Prentice and Egan, Commerce Clause (1898); Cyclop, of Am. Govt. (1914), Commercial Policy and Relations of the U. S.; Interstate Commerce and Cases; Interstate Commerce Commission; Interstate Commerce Decisions; Interstate Commerce Legislation; Interstate Law and Relations; Subsidies to Shipping; E. McClain, Constitutional Law (1910), §§ 83-93; Interstate Commerce Commission, Reports (1887-); J. Story, Commentaries (1873, 1891), §§ 1061-1076; W. W. Willoughby, Constitutional Law (1910), II, chs. xlii, xliii; T. M. Cooley, Constitutional Limitations (7th ed., 1903), 851-859; H. C. Black, Constitutional Law (2d ed., 1897), 186-197, 368-371; J. R. Tucker, Constitution (1899), §§250- 267, 446 § 195] Regulation of Shipping. 447 195. Regulation of Shipping. From the earliest days of the colonies, America has had a large trade with other countries, and this trade was never so flourishing and abundant as now. The federal constitution wisely placed the whole control of foreign commerce in the hands of Congress ; and this power extends to the means of transport, to the movement of persons, and to the commodi- ties carried, and is enlarged by federal jurisdiction over admi- ralty cases, and by the exclusion of the states from tonnage, and import duties, or export duties, other than for inspection. Except across the Mexican and Canadian borders, all our commerce must be carried on by vessels ; and in four ways Congress has protected American shipping, (i) It has laid discriminating tonnage duties. The tax was at one time eight times as much on foreign vessels as on home vessels ; it is now on the two classes 3 and 6 cents a ton, not to exceed a total of 15 or 30 cents a year. (2) An act of 1793 prohibits for- eign vessels from engaging in coasting trade ; and a Supreme Court decision of 1901 held that trade with the dependencies was also coasting trade. (3) Duties on materials for ship- building are remitted, if the ships are to be used in foreign, or in Atlantic and Pacific, trade. (4) The duties on imports are somewhat increased if carried in vessels of a nation with which the United States has no agreement against discriminating duties. In order to get the advantage of these and other privileges, a vessel must be built within the United States and must be- long wholly to a citizen or citizens of the United States, and the officers must not be subjects of any foreign states. A for- eign vessel wrecked on the American coast may receive an American register, if the repairs amount to three fourths of the value; and in 1892 Congress passed a special law author- izing the registry of two large foreign-built steamers, the New York and the Paris, for the American Line. These restric- tions are sometimes evaded: occasionally a New England 448 Foreign Commerce. [§ 195 fishing vessel puts to sea with an American captain and a Canadian cook, but when off soundings the cook commands the vessel and the nominal captain cooks the meals. The actual tonnage of American vessels is enormous, for it includes the Great Lakes and coastwise trade as well as the transoceanic. In 1789 there were 201,000 tons; in 1809, 1,350,000 tons, or about seven times as much; in 1839, over 2,000,000 tons; in 1861, 5,500,000 tons, which was the high- water mark for 40 years; but in 1902 there were 5,800,000 tons. Yet the proportion of tonnage engaged in foreign trade, which till 1809 was two thirds of the whole, has steadily diminished, and in 1902 was only 900,000 tons out of 5,800,- 000 tons. At one time the United States carried over eight tenths of all our foreign imports and exports ; it now carries less than one tenth. The reasons for these changes are many, (i) Until about 1870 the model craft of the world was the wooden sailing ship, which could be produced more cheaply from the great Ameri- can forests situated near tide-water than anywhere else in the world : when iron ships began to come in, they could be built more cheaply in England, where ore and coal lay near the seaboard. (2) In both coastwise and foreign trade, steam tonnage is now greater than sail tonnage ; and until within a few years the English have been the most successful designers and builders of marine engines and boilers, and have de- veloped the triple and quadruple expansion engines, with great saving of fuel. (3) The tariff upon ship-building ma- terials has made it difficult to build American ships for sale abroad, or to compete with foreign steamers in foreign trade. (4) American ships carry larger crews and pay rather higher wages. In 1902, however, there was a consolidation of Amer- ican ship-building concerns, with the likelihood that they will begin to build ships on a large scale in competition with the world. The government aids shipping by enacting rules of the road at sea, in accordance with codes drawn up by international § i9S] Regulation of Shipping. 449 conferences. The pilots are licensed and pilotage controlled by the states, except that pilots on coastwise steam vessels are commissioned by the United States, and such vessels are not liable tb state pilot charges. The United States builds and maintains a magnificent system of lighthouses, buoys, and light-ships; it has surveyed the whole coast of the conti- nental area, and publishes seamen's charts ; it has an elab- orate life-saving service, which patrols the coast, warns vessels off dangerous shores, and, in case of wreck, by life-boats and life-lines attempts to save the passengers and the cargo. To prevent smuggling, an elaborate system of federal legisla- tion provides for the formal entry and clearance of vessels ; and all American vessels must be registered, and must carry special forms of enrolment for coasting' and fishing purposes. The government also requires vessels to carry regular ship's papers, setting forth registry, port of departure, port of des- tination, owners, officers, and so on. Another series of stat- utes looks after the seamen, prescribing how they shall be shipped, how their wages shall be paid, and what their food and treatment shall be. The most hotly-contested question with regard to American shipping is that of subsidies. Besides certain bounties granted to fishermen for the purpose of keeping up a nursery of Amer- ican seamen for time of war, there have been three epochs of steamship subsidies, (i) From 1847 to about 1858 the Collins Line of American-built wooden steamers received for a time $858,000 a year for bi-monthly service to Liverpool, and the Bremen Line got $200,000 a year for monthly service. (2) From 1866 to 1876 the Pacific Mail Steamship Company received $500,000 a year for trips to China and Japan. (3) An act of 1891 was intended to build up a fast line to compete with the British White Star and Cunard Lines, and also to stimulate trade with South America. Subsidy-earners were divided into four classes, earning from 66 cents to $4 per mile of outward voyage ; and under this contract an average of $700,000 a year has been paid since the inauguration of the 29 45 o Foreign Comiiicrce. [§ 196 system. By the introduction of bills into Congress in 1901, an attempt was made to provide a general system of subsidy which would absorb about ^9,000,000 a year for an indefinite period. The arguments for a subsidy are : — ( i ) That it is not creditable to the United States to permit other people to carry its commerce. This argument of course applies equally to the other end of the line, and would at most call for an equal division of the traffic. (2) That a subsidy will act as a pro- tective duty to both ship-building and ship-owning. It is, however, difficult to see that profitable lines now owned by Americans would make the country any richer by taking American registers. The great shipping combination of 1902, under the direction of Mr. J. P. Morgan, expected the business of ocean transportation to be profitable without a subsidy. 196. Regulation of ImmigrHtion. The statutes on shipping contain elaborate provisions for passengers, and especially for steerage passengers, who once were shamefully crowded and ill treated. Since 1855 every passenger vessel, foreign or American, must assign sufficient cubic space for each person, and must allow suitable provi- sions. There is also a special system of inspection of steam vessels in order to prevent loss of life from defective con- struction or from explosions ; and there are laws requiring life-preservers, boats, and other protections for passengers. These regulations apply to vessels leaving the United States as well as to those arriving, but there is a special system of law applied to immigrants. In 182 1 Congress required every vessel entering port to report the number of alien passengers, and after 1856 to make a separate return of those who intended to make their homes here ; otherwise, with the exception of the Alien Acts of 1798 for the expulsion of foreigners, no law limiting immigration was passed until 1862. The temporary foreign visitors are § 19^] Regulation of Immigration. 451 now about 20,000 every year. Of permanent immigrants there were about 8,000 in 1820, 84,000 in 1840, and 428,000 in the great year of 1854. During the Civil War, immigration fell off; but in 1866 it began on a large scale, and in the record year 1882 789,000 foreign immigrants were registered as enter- ing the country. In 1898 this number fell to 229,000, but in 1902 it was 649,000. In the decade from 1892 to 1902 about 3,800,000 foreigners settled in this country. Relatively to population, the present number of immigrants is about a half what it was sixty years ago ; and the railroads make it easier to distribute 600,000 in 1902 than 100,000 in 1842. The serious matter is that there are now fewer immi- grants from England, Scotland, English Canada, Germany, Holland, and the Scandinavian countries, — that is, from the people most like the native Americans and hence easiest to amalgamate, — while there is a great increase in those from Italy, the Russian empire, and Austro- Hungary, the people most remote from our way of thinking. The English immi- grants were 82,000 in 1882, and 14,000 in 1902 ; the Germans were 207,000 in 1854, and only 28,000 in 1902 ; the Scandi- navians were 105,000 in 1882, and 54,000 in 1902; the Italians were 3,000 in 1876, and 178,000 in 1902. The change of quality in the immigrants, and a prejudice against the coming in of workmen to compete with those already on the ground, have led to various attempts to restrict immigration, (i) In 1862 Congress dealt with coolie immi- gration, especially the Chinese. (2) In 1882 was passed an immigration act prohibiting the coming in of idiots, lunatics, convicts, and persons likely to become charges on the public. (3) In 1885 came the Alien Contract Labor Act, which made it unlawful for persons to enter the United States if under con- tract to perform labor here when they arrived ; exceptions were actors, artists, lecturers, singers, domestic servants, and workmen skilled in new industries. This act has been difficult to execute, because a contract laborer does not wear a badge to distinguish him ; and attempts have been made to shut out 452 Foreign Commerce. [§ 196 clergymen and professional musicians on the ground that they were contract laborers. (4) In 1882, in defiance of the existing treaty, Congress passed an act prohibiting Chinese laborers of any kind from coming in. (5) In 189 1 an immi- gration act was passed prohibiting polygamists and diseased persons from landing ; and an official, " the superintendent of immigration," was put in charge of the service. (6) Many people having taken alarm at the continued immigration of foreigners, in 1897 a law for the exclusion of adults who could not read and write, at least in their own language, passed both houses of Congress, and was vetoed by President Cleveland. (7) In 1882 there was imposed a tax on immigrants of 50 cents per head, which was raised to $1 in 1894 and to $2" in 1903. (8) In 1903 the immigration of anarchists was prohibited. The apparent effect of these various laws is not great : in 1902 the exclusions were : convicts, 9 ; insane, 27 ; idiots, 7 ; paupers, 3,944; contract laborers, 275; diseased, 709; other causes, 3 ; total, 4,974. The real effect is much greater : first, because unfit persons hesitate to incur the long voyage with a prospect of exclusion ; and, secondly, because the steamships must carry excluded persons back at the expense of the owners, and hence they are active to keep out people who are likely to be thrown back on their hands. In practice, the test that a man shall be able to take care of himself is that he shall have fifteen dollars in his pocket ; and friends in the steerage often combine to form a pool, so that nobody shall be devoid of this necessary sum. Really effective has been the prohibition on Chinese immi- gration. Beginning about 1855, 3,000 or 4,000 Chinese came in every year until 1868, when large numbers were imported to work on the Central Pacific Railroad ; then the numbers began to increase, and in 1882 the immigration was 40,000. Congress then interposed, with the result thai in 1885 only 22 Chinese were recorded as entering the country, and from 1880 to 1900 the total number of Chinese here decreased by 16,000. §197] Movement of Foreign Commerce. 453 The reason for the exclusion of the Chinese was partly the prejudice of European laborers on the Pacific coast, who disliked the competition ; partly the demand of nearly the whole community on the Pacific slope ; and partly the con- viction of Congress that a large immigration would ultimately lower the scale of living and unfavorably afiect the lowest stratum of the white population. The Chinese already in the country form useful household servants and laborers and laundrymen ; but all experience goes to show that, although a very habile people, they have so different a mode of thought and so different a social organization that they never could become a permanent part of an American community. The legislation of Congress has saved the Pacific Coast from a social difficulty akin to the negro question in the Southern States. 197. Movement of Foreign Commerce. One of the principal reasons for establishing the American colonies was to furnish an outlet for European trade. As the colonies had very few manufactures, they always depended on Europe and especially on England for fine clothing, for manu- factures of metals, and for many other commodities. Their only means of paying for these importations was by exporta- tions of domestic produce, especially timber, fish, grain, tobacco, and pig-iron. A lively, though usually a forbidden, trade to the Spanish and French West Indies brought hard specie, which helped to adjust balances with England. After the Revolution the United States became a heavy exporter of food products, and during the Napoleonic wars a large commerce was built up, in which the imports usually far exceeded the exports. For instance, in 18 10 we imported ^61,000,000 and exported ^42,000,000; the difference prob- ably represented the earnings of the American shipping trade. Then came a period of heavy loans from abroad, which really came in the form of excess of imports over exports. In the forties and fifties, considerable trade balances were for the 454 Foreign Commerce. [§ 197 first time established in our favor,