Warn WBBK& Am H HBP HRRhu Hg mRBR Hi ■MHOS M am m LIBRARY OF CONGRESS 00008441552 1 JHBB ■I VBRDNBSwwIOOQfl MQHj ><* '' *tf , , , % 5ra a \ ^» \ . fit, \. **' V -V /'% NV .x^"\ *- >? ./'..% ^ £ ' ^ I .. x° ^ ^ ~\ 4 ^ .-v- %. 4> * / / It*. ^ ^ <0 1 *V r ,>> ^ <&*% >\c? « : ^ \ i a I . L SL Columbia sant&ersitg lectures CONSTITUTIONAL GOVERNMENT IN THE UNITED STATES GEORGE BLUMENTHAL FOUNDATION 1907 COLUMBIA UNIVERSITY LECTURES CONSTITUTIONAL GOVERNMENT IN THE UNITED STATES BY WOODROW WILSON, Ph.D., LL.D. PRESIDENT OF PRINCETON UNIVERSITY 3 Ml Nefo gorfe THE COLUMBIA UNIVERSITY PRESS 1908 All rights reserved s Iwo Chumps Received f JUM 1 1908 >?&!•, 2 back to him from Mr. Hamilton and Mr. Madison in great part rephrased and rewritten, in many passages reconceived and given a new color. He thought and acted always by the light of counsel, with a will and definite choice of his own, but through the instrumentality of other minds as well as his own. The duties and responsibilities laid upon the Presi- dent by the Constitution can be changed only by consti- tutional amendment, — a thing too difficult to attempt except upon some greater necessity than the relief of an overburdened office, even though that office be the greatest in the land ; and it is to be doubted whether the deliberate opinion of the country would consent to make of the Presi- dent a less powerful officer than he is. He can secure his own relief without shirking any real responsibility. Appoint- THE PRESIDENT OF THE UNITED STATES 81 ments, for example, he can, if he will, make more and more upon the advice and choice of his executive colleagues; every matter of detail not only, but also every minor matter of counsel or of general policy, he can more and more depend upon his chosen advisers to determine; he need reserve for himself only the larger matters of counsel and that general oversight of the business of the government and of the persons who conduct it which is not possible without intimate daily consultations, indeed, but which is possible without attempting the intolerable burden of direct control. This is, no doubt, the idea of their functions which most Presidents have entertained and which most Presidents suppose themselves to have acted on; but we have reason to believe that most of our Presidents have taken their duties too literally and have attempted the impossible. But we can safely predict that as the multi- tude of the President's duties increases, as it must with the growth and widening activities of the nation itself, the incumbents of the great office will more and more come to feel that they are administering it in its truest purpose and with greatest effect by regarding themselves as less and less executive officers and more and more directors of affairs and leaders of the nation, — men of counsel and of the sort of action that makes for enlightenment. IV THE HOUSE OF REPRESENTATIVES The President of the United States was intended by the makers of the Constitution to be a reformed and stand- ardized king, after the Whig model; and Congress was meant to be a reformed and properly regulated parliament. But both President and Congress have broken from the mold and adapted themselves to circumstances, after a thoroughly American fashion, — partly because the king and Parlia- ment which the convention of 1787 intended to copy, with modifications, had no real existence and were therefore largely theoretical, but chiefly because, even if they had existed at the moment the copy was made, they could not have been fixed in that transitional form by any law that the convention could have devised. They were sure to undergo rapid alteration in one direction or another, and each has taken its own course of change. It would be difficult now to believe that the American President and the English King, the American Congress and the English Parliament, were originally of the same model and inten- tion if we did not clearly recollect the fact to be so. It is the reaction of the several parts of government upon one another that gives each part its final form and character. It is useless to study any living structure of government anatomically, in its separate parts. Its char- acter and significance come to light, as I have already several times insisted, only when we study it as an organic 82 THE HOUSE OF REPRESENTATIVES 83 whole, living and acting from day to day. Our present study must at every stage be a study of the synthesis of power in the government on the one hand, and of the peo- ple's control of the government on the other; for there can be no power which is not synthetic, which does not operate with organic unity; and there can be no constitu- tional government where the organs of government are not constantly under the control of public opinion. We shall get our completest understanding of the House of Representatives, therefore, if we look at it from two points of view: from the point of view of its synthesis with the other parts of the Government, and from the point of view of its relations to opinion. If you were to ask an Englishman to describe the govern- ment of England, he would of course include the Parliament in his description. Indeed, it is likely that he would have more to say of the House of Commons than of anything else. But if you were to speak to him of 'The Government,' he would not think of the House of Commons but only of the ministers, of what we should call the administration. I can make the part played by the House of Representa- tives in our system clearest by contrasting it with the Eng- lish House of Commons, and in order to make that con- trast carry its full significance it is necessary that we should bear these two meanings of the word government in mind and never confuse them. When I said in a previous lec- ture that it was not necessary for the full realization of constitutional government that representative assemblies should become a part of the ' Government/ I meant, of course, a part of the administrative organ of government, the organ that is looked to for initiative, which makes choice of policy and actually controls the life of the nation 84 CONSTITUTIONAL GOVERNMENT IN UNITED STATES under the laws ; and the significant difference between English and American political development is that in America Congress has become part of the Government, while in England Parliament has not. Parliament is still, as it was originally intended to be, the grand assize, or session, of the nation, to criticize and control the Govern- ment. It is not a council to administer it. It does not originate its own bills, except in minor matters which seem to spring out of public opinion or out of the special cir- cumstances of particular interests, rather than out of the conduct of government. Every legislative proposition of capital importance comes to it from the ministers. The duties of the ministers are not merely executive: the ministers are the Government. They look to Parliament, not for commands what to do, but for support in their own programs, whether of legal change or of political policy. What the House of Commons does, therefore, is not to act in any strictly originative way as the law-making body of the nation, but to make and unmake Governments, to prefer now one, and again another, committee of its lead- ing members as its guides, not itself leading but choosing how it shall be led, insisting that the king make the leaders of its own choice the ministers of the crown. It is not the Government, but its leaders are. In the supreme act of in- sisting that they and no others shall be chosen by the crown for the executive posts of government it exhausts its originative force. Thereafter it follows and criticizes as of old. Our Congress, on the contrary, does not make or unmake our Government. The people do that in their selection of a President. And because Congress cannot make or unmake the Government at its pleasure, it usually makes THE HOUSE OF REPRESENTATIVES 85 it a point of pride not to be led by the Government in what it regards as its proper and exclusive sphere, the making of laws. The making of laws is a very practical matter. It is not a mere enactment of opinions into commands. At least, it should not be. Neither should it be a means of forcing the favorite reforms of some members of the legislative body upon the nation, unless there is to be some direct and easy way of holding those members responsible for the untoward results of their intended reforms, should they fail to bring about the happy changes they were meant to effect. The practical side of law is its application. The Government, therefore, is the only possible body of experts with regard to the practicability and necessity of alterations in the law, and it is certainly a noteworthy outcome of our political development that the houses should have rejected the leadership of the Government in legislation. They stand alone among the legislatures of the world in having done so. It is in this sense that I speak when I say that the American Congress has become a part of the Government, and that the English Parliament never has. Our Congress freely and habitually originates law upon every subject upon its own initiative, plays a plan- ning and devising part in the conduct of government, and is in many ways an administrative council acting in complete independence of those who are charged with actual administration. It even resents suggestions from administrative officers as impertinent invasions of its independence. It has in a thousand particulars taken charge of the Government, without assuming the respon- sibility of putting its leaders in to conduct it. A sharper contrast to the development of the English House of Commons, upon which it was modeled, could hardly be 86 CONSTITUTIONAL_GOVERNMENT IN UNITED STATES imagined. The House of Representatives has moved to the opposite pole both of theory and of action. The Senate was, no doubt, meant to be a part of the Government. In the making of treaties with foreign governments and in the difficult and responsible business of appointments to office it was deliberately associated with the President as an administrative council, by the terms of the Constitution. But these are matters of con- sultation, in which it waits upon the executive. The Senate was not given the initiative in respect of them. It cannot originate treaties or make, or even suggest, appoint- ments. It waits upon the initiative of the Government, as Parliament does, and has not departed from the original model. But in legislative matters proper its attitude is the same as the attitude of the House. House and Senate alike jealously guard their right to be their own guides in legislation, even when the laws they handle are clearly administrative in character and deal not with general matters but with the duties of the executive departments and the details of governmental business. The development of our Congress thus affords a singular and instructive contradiction between theory and fact, which ought to interest practical politicians as much as it naturally interests historians. Congress and Parliament had the same origin. Our houses were conceived by the makers of the Constitution at a period when both Parlia- ment and Congress were supposed to stand outside Govern- ment, its mentors and critics, holding aloof from it and yet determining its action, at any rate negatively, by what they consented to make legal or insisted upon making illegal. And yet our houses, developed under a theory of checks and balances which seemed intended to preserve that THE HOUSE OF REPRESENTATIVES 87 theory of separateness, have thrust themselves into the business of governing ; while Parliament, frankly developed in these later years upon the theory of drawing the several parts of government together in close synthesis, has re- mained separate and still waits upon the Government for action. By natural consequence, the organization of our legis- lative houses is entirely unlike that of Parliament. Having made up their minds to be indeed separate from the execu- tive, to have a distinct life and an independent initiative, and to make themselves part of the Government upon a plan of their own, they have been obliged to create a suitable organization. The House of Representatives, being the more numerous body and in the nature of the case harder to organize as an originative and independent assembly, has effected the more thorough organization, and devotes itself to business with a precision and ease of method which the Senate has not attempted. The House and Senate are naturally unlike. They are different both in constitution and character. They do not represent the same things. The House of Representa- tives is by intention the popular chamber, meant to repre- sent the people by direct election through an extensive suffrage, while the Senate was designed to represent the states as political units, as the constituent members of the Union. The terms of membership in the two houses, moreover, are different. The two chambers were unques- tionably intended to derive their authority from different sources and to speak with different voices in affairs; and however much they may have departed from their original characters in the changeful processes of our politics, they still present many sharp contrasts to one another, and 88 CONSTITUTIONAL GOVERNMENT IN UNITED STATES must be described as playing, not the same, but very dis- tinct and dissimilar roles in affairs. Perhaps the contrast between them is in certain respects even sharper and clearer now than in the earlier days of our history, when the House was smaller and its functions simpler. The House once debated ; now it does not debate. It has not the time. There would be too many debaters, and there are too many subjects of debate. It is a busi- ness body, and it must get its business done. When the late Mr. Reed once, upon a well-known occasion, thanked God that the House was not a deliberate assembly, there was no doubt a dash of half-cynical humor in the remark, such as so often gave spice and biting force to what he said, but there was the sober earnest of a serious man of affairs, too. He knew the vast mass of business the House undertook to transact: that it had made itself a great organ of direction, and that it would be impossible for it to get through its calendars if it were to attempt to discuss in open house, instead of in its committee rooms, the measures it acted upon. The Senate has retained its early rules of procedure without material alteration. It is still a place of free and prolonged debate. It will not curtail the privilege of its members to say what they please, at whatever length. But the senators are comparatively few in number; they can afford the indulgence. The House cannot. The Senate may remain individualistic, atomistic, but the House must be organic, — an efficient instrument, not a talkative assembly. A numerous body like the House of Representatives is naturally and of course unfit for organic, creative action through debate. Debate, indeed, is not a creative process. It is critical. It does not produce; it tests. A large THE HOUSE OF REPRESENTATIVES 89 assembly cannot form policies or formulate measures, and the House of Representatives is merely a large assembly, like any other public meeting in its unfitness for business. Like other public meetings, it must send committees out to formulate its resolves. It organizes itself, therefore, into committees, — not occasional committees, formed from time to time, but standing committees permanently charged with its business and given every prerogative of suggestion and explanation, in order that each piece of legislative business may be systematically attended to by a body small enough to digest and perfect it. For each important subject of legislation there is a standing committee. There is, for example, a Committee on Appropriations, a Committee on Ways and Means, that is, on the sources and objects of taxation, a Committee on Banking and Currency, a Committee on Commerce, a Committee on Manufactures, a Committee on Agricul- ture, a Committee on Railways and Canals, a Committee on Rivers and Harbors, a Committee on the Merchant Marine and Fisheries, a Committee on the Judiciary, a Committee on Foreign Affairs, a Committee on Public Lands, a Committee on Land Claims, a Committee on War Claims, a Committee on Post Offices and Post Roads, a Committee on Military Affairs, a Committee on Naval Affairs, a Committee on Indian Affairs, a Committee on Education, a Committee on Labor, — the business likely to be brought to the attention of the House being thor- oughly, indeed somewhat minutely, classified and the committees being some fifty-seven in number. Every bill introduced must be sent to a committee. It would probably be impossible to think of any legitimate subject for legislation upon which a bill could be drawn 90 CONSTITUTIONAL GOVERNMENT IN UNITED STATES up for whose consideration no standing committee has been provided. If a new subject should turn up, the House would no doubt presently create a new committee. The thousands of bills annually introduced are promptly distributed, therefore; go almost automatically to the several committees; and as automatically, it must be added, disappear. The measures reported to the House are measures which the committees formulate. They may find some member's bill suitable and acceptable, and report it substantially unchanged, or they may pull it about and alter it, or they may throw it aside altogether and frame a measure of their own, or they may do nothing, make no report at all. Few bills ever see the light again after being referred to a committee. The business of the House is what the committees choose to make it. What the House of Commons depends upon its committee, the Government, to do, the House depends upon its fifty- seven committees to do. The private member's bill has a little better chance, indeed, of being debated in the Commons than in the House of Representatives. The House of Commons does usually set aside one day a week for the consideration of private members' bills, when the Government is not pressed for time and does not insist upon using every day itself; and those members who are fortunate enough to draw first places in the makeup of the calendars for those days may have the pleasure of getting their proposals debated and voted upon. But in the House of Representatives there is only the very slender chance of getting the rules suspended, an irregu- larity which the businesslike chamber has grown very shy of permitting. The very complexity and bulk of all this machinery is THE HOUSE OF REPRESENTATIVES 91 itself burdensome to the House. There are now more than half as many committees in the House as there are members in the Senate. It cannot itself choose so many committees; it cannot even follow so many. It therefore intrusts every appointment to the Speaker, and, when its business gets entangled amongst the multitude of com- mittees and reports, follows a steering committee, which it calls the Committee on Rules. And the power of appoint- ing the committees, which the House has conferred upon its Speaker, makes him the almost autocratic master of its actions. In all legislative bodies except ours the presiding officer has only the powers and functions of a chairman. He is separate from parties and is looked to to be punctiliously impartial. He moderates and gives order to the course of debate, and is expected to administer without personal or party bias the accepted rules of its procedure. For political guidance all other representative assemblies depend on the Government, not upon committees which their presiding officer has created. But the processes of our parliamentary development have made the Speaker of our great House of Representatives and the Speakers of our State Legislatures party leaders in whom centres the control of all that they do. So far as the House of Representatives and its share in the public business is concerned, the Speaker is undisputed party leader. Every one of the committees of the House the Speaker appoints. He not only allows himself to make them up with a view to the kind of legislation he wishes to see enacted; he is expected to make them up with such a view, — is expected to make them up as a party leader would. He is, it is true, a good deal hampered in the 92 CONSTITUTIONAL GOVERNMENT IN UNITED STATES exercise of a free choice in their makeup by certain well- established understandings and precedents, of whose breach the older members of the House at any rate would be very jealous. Seniority of service has to be respected in assigning places on the more important committees, and the succession to certain of the chief chairmanships is well understood to go by definite rules of individual precedence and personal consideration. But it is always possible for the Speaker to determine the majority of his appointments in such a way as to give him that direct and continuing control of the actions of the House which he is now expected to exercise as the party leader of the majority. Even his own personal views upon particular public questions he does not hesitate to enforce in his appointments, so that the very majority he represents may be prevented from having an opportunity to vote upon measures it is known to desire because he has made up the committees which would report upon them in accordance with his own preferences in the matter. What the commit- tees do not report the House cannot vote upon. Every bill that is introduced is assigned to a committee picked out by the Speaker's order, if there be any doubt about its character or reference. It is the Speaker's decision, also, that assigns the reports of the committees to the several calendars upon which the business of the House is allotted its time for consideration, and he may often choose whether the place allotted them shall be favorable or unfavorable, shall make it likely or unlikely that they will be reached at all. Moreover, it has come about that by means of his pre- rogative of ' recognition ' the Speaker is permitted to con- trol debate to a very extraordinary degree. It is common THE HOUSE OF REPRESENTATIVES 93 parliamentary practice that no one can address an assem- bly until " recognized," that is, accorded the floor, by the presiding officer. The House of Representatives, feeling always pressed for time, even with regard to the considera- tion of the reports of its standing committees, which are numerous and amazingly active, restricts debate upon those reports within very narrow limits, and generally allots the greater part of the brief time allowed to any one report to the chairman of the reporting committee. Other members may get a few minutes of time allowed them by previous arrangement with the committee's chair- man, and a list of those who are thus to be given an oppor- tunity to speak generally lies on the Speaker's desk. These members the Speaker will "recognize," but no others, though they spring to their feet under his very nose in the open space in front of the seats, — unless, indeed, they have seen him beforehand and got his permission. No member who has not previously arranged the matter, either with the chairman of the committee or with the Speaker, need rise or seek to catch the Speaker's eye. And in the intervals of calendar business no one whose inten- tion the Speaker has not been apprised of, unless indeed it be the leader on the floor of the one party or the other, may expect to be accorded the floor to make a motion. The Speaker may, if he choose, determine what proposals he will permit the House to hear. The Committee on Rules has of recent years had a very singular and significant development of functions. Origi- nally its duty was a very simple one : that of reporting to the House at the opening of each of its biennial sessions, when a new House assembles and a new organization is effected, the body of standing rules under which it was to 94 CONSTITUTIONAL GOVERNMENT IN UNITED STATES act; for the House goes through the form of readopting its whole body of rules each time it reorganizes after fresh congressional elections. From session to session the rules were modified, now in one particular, again in another, on the recommendation of the committee; and any change in the rules at any time proposed is still referred to it for consideration and report. But now the committee is looked to, besides, for such temporary orders and programs of procedure as will enable the House to disentangle its business and get at the measures which the country ex- pects it to dispose of or the needs of the Government make it necessary that it should not neglect. The party majority is well aware that, if it would keep its credit with the constituencies, it must not allow the miscellany of com- mittee reports on its crowded calendars to stand in the way of matters which it is pledged to act upon. It looks to the Committee on Rules to sweep aside the ordinary routine of procedure whenever necessary, and bring in a schedule of action which will enable it to get at the main things it is interested in, or at any rate the things the party leaders think it most expedient it should dispose of. The committee has thus become a very important part of party machinery. It consists of five members, the Speaker himself, two other representatives of the majority, and two representatives of the minority. The majority mem- bers of course control its action; the representation of the minority is hardly more than formal; and the two mem- bers of the majority associated with the Speaker upon it are usually trusted lieutenants upon whom he can count for loyal support of his leadership. One self-confident Speaker smilingly described the committee as consisting of the Speaker and two assistants, — a pleasant way of THE HOUSE OF REPRESENTATIVES 95 saying that the committee was his instrument to govern the House. His direct control of the Committee on Rules rounds out his powers as autocrat of the popular chamber. And yet the word autocrat has really no place in our political vocabulary, if we are to use words of reality and not words of extravagance. The extraordinary power of the Speaker is not personal. He is in no proper sense of the word an autocrat. He is the instrument, as well as the leader, of the majority in controlling the processes of the House. He is obeyed because the majority chooses to be governed thus. The rules are of its own making, and it can unmake them when it pleases. It can override the Speaker's ■ decisions, too, and correct its presiding officer as every other assembly can. It has simply found it most convenient to put itself in the Speaker's hands, its object being efficiency, not debate. And yet it is also an exaggeration to say that House bills go through as the committees propose practically without debate. Some measures it is clearly in the inter- est of the party no less than of the public to discuss with some fullness. Many financial measures in particular are debated with a good deal of thoroughness, and most mat- ters that have already attracted public attention. Not everything is left to the operation of the rules, the chances of the calendar, and the dictation of the Speaker and his two assistants. The Committee on Rules may be counted on to arrange for debates upon important bills as well as for putting unimportant bills out of the way. And standing over all is the party caucus, the outside conference of the members of the majority, to whose con- clusions the Speaker himself is subject, and to which mem- bers can appeal whenever they think the Speaker too irre- 96 CONSTITUTIONAL GOVERNMENT IN UNITED STATES sponsible, too arbitrary, too masterful, too little heedful of the opinions prevalent on the floor among the rank and file. The caucus is an established and much respected piece of party machinery, and what the party has not the organization to decide on the floor of the assembly itself it decides in this conference outside the House. Members who do not wish to be bound by decisions of the caucus can refuse to attend it; but that is a very serious breach of party discipline and may get the men who venture upon it the unpleasant reputation of disloyalty. Members who wish to maintain their standing in the party are expected to attend; and those who attend are expected to abide by the decisions of the conference. It is a thorough-going means of maintaining party unity. Caucuses are free conferences, where a man may say what he pleases; but they are held behind closed doors, and it is usually made a matter of honorable punctilio not to speak outside of the dissensions their debates may have disclosed. It is thus that the House has made itself " efficient.' ' Its ideal is the transaction of business. It is as much afraid of becoming a talking shop as Mr. Carlyle could have wished it to be. If it must talk, it talks in sections, in its committee rooms, not in public on the floor of the chamber itself. The committee rooms are private. No one has the right to enter them except by express permission of the committees themselves. Not infrequently committees do hold formal public hearings with regard to certain bills, inviting all whose interests are affected to be represented and present their views either for or against the proposed legislation. But such hearings are recognized as excep- tional, not of right, and as a rule the public hears nothing of the arguments which have induced any committee to THE HOUSE OF REPRESENTATIVES 97 make its particular recommendations to the House. The formal explanations of the chairman of a committee, made upon the floor of the House, contain few of the elements of contested opinion which undoubtedly showed themselves plainly enough in the private conferences of the committee. For each committee is a miniature House. The minority is accorded representation upon it in proportion to its numerical strength in the House. In every committee, therefore, there are men representing both party views, and it sometimes happens that the arguments of the minority members are very influential in shaping reports made upon measures concerning which no sharp party lines have been drawn. With regard to matters upon which the majority is known to have taken a definite position before the constituencies the majority members of a committee will of course insist upon having their own way. They are apt to be in frequent consultation with the Speaker about them. But with regard to measures on which no party issue has been made up they are willing on occasion to give a good deal of weight to the opinions of their minority colleagues. There is a very easy and amicable relation between majority and minority in the committees, and it will often happen that in committees which have to deal with highly technical matters, like manufactures or bank- ing or naval construction or the regulation of judicial pro- cedure, or with matters involved in precedent and to be understood only in the light of somewhat extended and intimate experience, like foreign affairs, members of the minority of long service in the House and of long familiarity with the subject-matter under discussion will in fact in no small degree guide and dominate the committees to which they have been assigned. Business is more like 98 CONSTITUTIONAL GOVERNMENT IN UNITED STATES business, because less formal and less touched with party feeling, in the committee rooms than on the floor of the House. The minority has its own party organization like that of the majority: its formally chosen leader for the floor, its caucus to secure common counsel. It is, indeed, usually less thoroughly disciplined than the majority, because it is in opposition, not in power, and can afford to allow its members freer play in choosing what they shall individually do and say. But its organization suffices to draw its forces together for common action when any matter of real party significance comes to the surface and the coun- try expects it to put itself on record; and it is ready, at very short notice, to turn itself into an organization as complete and powerful as that of the majority, should the elections favor it and its leader become Speaker. All lines of analysis come back to the Speaker, whether you speak of the organization or of the action and political power of the House. Such an organization, so system- atized and so concentrated, has of course made the House of Representatives one of the most powerful pieces of our whole governmental machinery, and its Speaker, in whom its power is centered and summed up, has come to be regarded as the greatest figure in our complex system, next to the President himself. The whole powerful machinery of the great popular chamber is at his disposal, and all the country knows how effectually he can use it. Whatever may be the influence and importance of the Senate, its energies are not centered in any one man. There is no senator who sums up in himself the power of a great organ of government. The leaders of the Senate deal in all counsel with the other chamber with regard to legislative THE HOUSE OF REPRESENTATIVES 99 business with this single leader, this impersonation of the House. So do also the President and the members of the cabinet. As national leader of his party, the President must reckon always with the guide and master of the House, without whose approval and consent it is practi- cally impossible to get any legislative measure adopted. Measures which are to prosper must have his countenance and support. Members of the cabinet must study his views and purposes, if they are to obtain the appropriations they desire or to see measures brought to a happy and successful issue which they deem necessary to the admin- istration of their departments. One might sum up the active elements of our government as consisting of the President, with all his sweep of powers; the Speaker of the House, with all that he represents as spokesman of the party majority in the popular chamber, with its singularly effective machinery at his disposal; and the talkative, debating Senate, guided no doubt by a few influential and trusted members, but a council, not an organization. The House of Commons makes and unmakes govern- ments. The House of Representatives makes and un- makes Speakers. As the originative capacity of the House of Commons is exhausted when it has produced a ministry, so the originative force of the House of Representatives is exhausted when it has made a Speaker. Neither does anything else, as a whole. For the rest, they follow and criticize: follow fifty-seven committees or one committee; criticize the Speaker and his committees or the ministers who have risen to a place of rule. A numerous assembly cannot do more. In producing a single committee and securing for it the right to conduct the government, the House of Commons 100 CONSTITUTIONAL GOVERNMENT IN UNITED STATES has, it must be admitted, done a more effective thing than the House of Representatives has done in producing an omnipotent Speaker and fifty-seven committees, and has obtained for itself much greater power. There is reason to believe that the House of Representatives sometimes finds its numerous committees a burden, and certainly they do not all serve it equally well. The average membership of its standing committees is twelve, so that the total num- ber of committee places to be filled is six hundred and eighty-five. The total membership of the House is only three hundred and fifty-seven. There are, therefore, about two committee places for every member of the House. The appointments are not equally distributed, but every member is given some place. New members and members little thought of can be disposed of on committees which have little or nothing to do or whose work is light and formal: for the House keeps many committees on its list for which it has ceased to have any real or important use ; but with any sort of equitable distribution of the Speaker's appointments it must always happen that many committees with very important work to do are made up of men of only average capacity and little experience in public affairs. The real leaders and masters of business are few and are soon disposed of by assignment to the two or three chief committees; and to assign a man to a committee is prac- tically to silence him with regard to every matter of legislation except those referred to his committee. A Speaker must have a particularly clear vision of what the most important questions to come before that particular congress are, to be able to distribute the best men at his disposal in the best way and give the House effective service where it will most need it. The membership of THE HOUSE OF REPRESENTATIVES 101 most committees must be drawn from the rank and file. The House can use its best men for only a few things, and must make shift for the rest with the mediocre. Standing alone, therefore, and undertaking to be suffi- cient unto itself in respect of everything it is authorized by the Constitution to handle, the House of Representatives is a much less powerful and influential body than it would have been, could it have had the luck of the House of Com- mons and got control of the Government itself. Inde- pendence in any organization is isolation; and isolation is weakness. You have no controlling authority; you have only the right to sell your favors, to exchange con- cession for concession, to come to an agreement by some compromise of views. You can never have more than a piece of your own way. It is, of course, a more important and influential thing to superintend a Government with supreme authority, as the House of Commons does, than to stand separate in a complex organization, play only an individual part, be only a piece of a balanced mechanism, as the House of Representatives is. It is an interesting conclusion in political dynamics that a body which stands jealously apart and avoids partnership of any intimate sort in the conduct of affairs, declines an opportunity to rule and gets only an opportunity to bargain. If it is strong enough to rule, partnership will bring it supremacy; if it is not strong enough to rule, it can make little out of compromises and bargains. It is hardly to be expected that, as the affairs of the nation grow more complex and interesting and difficult and require nicer adjustments of governmental power for their management, the House of Representatives will remain content with its present splendid isolation. We are in love with efficiency and, as a practical nation, 102 CONSTITUTIONAL GOVERNMENT IN UNITED STATES greatly admire the complete and thorough organization of the House, its preference for action and its impatience of talk: but if every part of our political machinery is to be organized for " business," where are counsel and criticism to come in? We never stood more in need of them than we do now. If our present representative assemblies are to be for action, we must let them go over in our thoughts to become outlying, detached parts of the executive, and must invent other assemblies for discussion. For public business cannot be transacted in a truly constitutional spirit without searching and constant discussion, unless we are mistaken in our analysis of constitutional govern- ment as government which is conducted in accordance with a clear understanding between those who administer it and those who obey it, — an understanding not only established by fundamental law, by charters and constitu- tions, but also accommodated to each day and generation by the criticisms and behests of representative assemblies whose business shall not be the actual discharge of govern- mental functions, but the maintenance of that nice balance between opinion and power which is of the very essence of the whole matter. There is discussion and discussion. I suppose that we have come to think debate less necessary in our legislative assemblies than it may once have been because we have allowed ourselves to fancy that the action of government was sufficiently discussed and nicely enough squared with opinion by the news columns and editorials of our news- papers. But even if the chief newspapers were not owned by special interests; even if their utterances really spoke the general opinion of the communities in which they are printed, as very few of them now do, their discussion of THE HOUSE OF REPRESENTATIVES 103 affairs would not be of the kind that is necessary for the maintenance of constitutional government. There are many things to be said about the newspapers which will make this at once evident. For one thing, few men outside the big cities read more than one newspaper. Few men, therefore, ever get put before them in the newspapers they read more than one side of any question; and they generally decide for themselves beforehand which side that shall be, by their choice of a newspaper. But far more important than that is the little recognized fact that no number of separate discussions of a question, no matter how assembled, no matter from how many different points of view, from how many different papers or different sections of the country, constitute such a comparison of views as a responsible representative assembly can insti- tute in its debates. Discussions which are to lead to action must be com- bined, compounded, made up out of many elements, or else out of a few, by a process which can be thorough and trustworthy only when these several elements are, so to say, brought personally face to face, as living, contending forces embodied in men authorized to be the spokesmen of voters and speaking with a constant sense of being held responsible for what they say. Common counsel is not jumbled counsel. There is often common counsel in the committee rooms of the House, but there is never common counsel on the floor of the House itself. It goes without saying that the combined acts of a session are not a prod- uct of common counsel. They have been produced by a thousand agencies, not threshed out by one, and they have not been threshed out in the presence of the country, but behind closed doors. 104 CONSTITUTIONAL GOVERNMENT IN UNITED STATES It may sound a very subtle matter, but it is in fact in- tensely practical, and is worth looking into. It is because we do not look into it or understand it, though it lies at the very heart of our whole practice of government, that we sometimes allow ourselves to assume that the " initia- tive" and the " referendum," now so much talked of and so imperfectly understood, are a more thorough means of getting at public opinion than the processes of our repre- sentative assemblies. Many a radical program may get what will seem to be almost general approval if you listen only to those who know that they will not have to handle the perilous matter of action and to those who have merely formed an independent, that is, an isolated opinion, and have not entered into common counsel ; but you will seldom find a deliberative assembly acting half so radically as its several members professed themselves ready to act before they came together into one place and talked the matter over and contrived statutes. It is not that they lose heart or prove unfaithful to the promises made on the stump. They have really for the first time laid their minds alongside other minds of different views, of different experience, of different prepossessions. They have seen the men with whom they differ, face to face, and have come to understand how honestly and with what force of genuine character and disinterested conviction, or with what convincing array of practical arguments opposite views may be held. They have learned more than any one man could before- hand have known. Common counsel is not aggregate counsel. It is not a sum in addition, counting heads. It is compounded out of many views in actual contact; is a living thing made out of the vital substance of many minds, many personalities, many experiences ; and it can be made THE HOUSE OF REPRESENTATIVES 105 up only by the vital contacts of actual conference, only in face to face debate, only by word of mouth and the direct clash of mind with mind. No doubt, as I have said, there is oftentimes genuine common counsel in the committee rooms of the House of Representatives; but the committee rooms are private and are so many that it would only confuse the nation to publish debates out of the whole body of them. One could not make his way through a Congressional Record like that. And yet the actual Congressional Record is disappointing, because it seems to lack reality. The speeches it contains too often seem the mere speeches of parade; merely the formal dress array of arguments, so conned and formalized as not to seem like vital discussion at all, but only like things meant to have their effect by way of party justifica- tion or to make impressive reading for distant constituen- cies. In brief, the debate is not real hand to hand debate at all; and the people, finding things done they do not just know why or how in their legislative assemblies, indulge suspicions which deeply disturb them and make them unjust critics of the whole representative system. The process of legislation is not open and frank and obvious enough. Too much is hidden away in committee rooms. And anything hidden is suspected, no matter how honest it may be. The machinery of action is too complex to be easily understood. There are more excuses for suspecting covert influences than chances to comprehend what really takes place, — most of it in fact excellent, honest, practical, efficient enough. It is very difficult for public opinion to judge such a body as the House of Representatives justly, because it is very difficult for it to judge it intelligently. If it cannot under- 106 CONSTITUTIONAL GOVERNMENT IN UNITED STATES stand it, it will certainly be dissatisfied with it. Moreover, it is very difficult for a body which compounds its legisla- tion by so miscellaneous a process as that of committees to bring itself into effective cooperation with the other parts of the government, — and synthesis, not antagonism, is the whole art of government, the whole art of power. I cannot imagine power as a thing negative, and not positive. The matter is perfectly illustrated by the relations be- tween the House and the Senate. They are not, it must be said, upon terms of very intimate and cordial cooperation. There is a subtle jealousy and antagonism between them, due to their desire to maintain their separateness and inde- pendence inviolate and be each a power to itself. When they come to a sharp difference of opinion upon any sub- ject of legislation which really interests the people the advantage is sometimes with the one, sometimes with the other. The Senate has the advantage of being a public council, not a mere congeries of committees, and of setting forth its reasons in thorough debate; the House has the advantage of being regarded as the more truly representa- tive chamber and of being more directly in touch with the general sentiment of the country. The House has also the advantage of being under thorough discipline and standing ready to do what it is told to do promptly when it becomes necessary to manoeuvre for position in such a contest of wills. But what happens at last is proof of nothing, how- ever the contest may end: it does not prove the popular sympathy of the House, if it win, nor the better counsel of the Senate, if it win. A conference committee is appointed by each house towards the very end of the session, the two committees meet and fight the differences THE HOUSE OF REPRESENTATIVES 107 of the houses out while business is hurrying to adjourn- ment and a recess; and just as the session closes the two bodies hastily pass, without debate, a conference report which is a mere patchwork of compromises; or else reject the compromise and let the whole matter fall. There is no common leadership even when the majorities of the two houses are of the same political party. It is at best a haphazard method of compounding legislation, liable to suffer many singular accidents, and impossible for a busy people to understand when they occasionally look on with unwonted attention. Such complications and subdivisions of machinery in the active and originative organs of the government result in its being in a very real sense leaderless. In the last lec- ture I spoke of the President as leader of his party and of the nation; but, though he clearly exercises such leadership, and exercises it with great effectiveness when he has the personal force for any originative role at all, he cannot be said to be the guide and leader of the Government as a whole. Our Government consists in part, as I have ex- plained, of the House and Senate. It is in that respect contrasted with all other governments. And in each part of our subdivided Government there is a distinct arrange- ment with regard to leadership. The Senate submits to the guidance of a small group of senators, very jealous of the independence of the body they control. The House is under the command of its Speaker. The executive is in the hands of the President, whom the houses regard, when thinking of their own powers, as an outsider, and whose advice they are apt to look upon as the advice of a rival rather than of a colleague. I suppose that when matters of legislation are under dis- 108 CONSTITUTIONAL GOVERNMENT IN UNITED STATES cussion the country is apt to think of the Speaker as the chief figure in Washington rather than the President, — at any rate in all ordinary seasons and under all ordinary Presidents. And yet, because he has the ear of the whole nation and is undoubtedly its chosen spokesman and repre- sentative, the President may place the House at a great disadvantage if he choose to appeal to the nation. It is this that makes the great difference between the Speaker and the President, whose figures you might come to regard as very nearly equal if you looked no farther than Washing- ton city itself. The Speaker of the House is not in the habit of appealing to the nation. He would feel himself ridiculous if he did. It would probably make an un- pleasant impression were the executive officer of one of the houses of Congress, himself merely the representative of a single constituency, to turn to the nation by some open appeal of speech or argument to decide between him and the President. It is a point of good taste with him, as well as of good politics, to say little, say that little in enig- matic phrases, and confine himself to his proper role of management. But the President may turn to the country when he will, with whatever arguments, whatever disclo- sures of plan, whatever explanations he pleases. Every- body will read what he says, particularly if there be any smack of contest in the air, while few will read what is said in the House where no one speaks for the whole body or for the nation; and if the nation happens to agree with the President, if he can win it to his view, the leadership is his whether the houses relish it or not. They are at a disadvantage and will probably have to yield. The true significance of the matter, for any student of government who wishes to understand the life rather than THE HOUSE OF REPRESENTATIVES 109 the mere theory of what he studies, is that the greatest power lies with that part of the government which is in most direct communication with the nation itself, — as one would naturally expect under any constitutional system. The light this evident fact throws upon the House of Representatives is this: that it has greatly weakened itself as an organ of public opinion by yielding to the need it has felt itself under to play the role of an independent part of the government. In its effort to make itself an instrument of business, to perform its function of legisla- tion without assistance or suggestion, to formulate its own bills, digest its own measures, originate its own poli- cies, it has in effect silenced itself. The nation does not look to it for counsel; does not expect to understand its own affairs any better because of anything said or anything done in the House; has come to regard it as what it is, a piece of effective law-making machinery, but not a delibera- tive assembly in whose debates it may expect to find public questions clarified, disputed matters settled. The House seems to have missed what its average capacity and its undoubted integrity entitle it to, the chief privilege of giving counsel to the nation, the right to be its principal spokesman in affairs. It is thus always a vital synthesis of parts that eludes us as we examine our constitutional system with its singular Newtonian equipoise of parts. But it is a study of persons and of forces of opinion, as in any other govern- ment. It is the actual temper and disposition of the two diverse chambers with which he deals that the President must study if he is to bring his party, as well as the opinion of the nation, to any program or measure of his own. The Senate and House must study one another and 110 CONSTITUTIONAL GOVERNMENT IN UNITED STATES play a very difficult game of accommodation to maintain any workable agreement or cooperation in legislation. They are of different tempers and traditions; they are jealous of each other and yet are constrained to agree. No man can lay down any rule as to what will happen amidst so many and so powerful forces, which must cooperate and yet are independent of one another. Time and circumstance and wise management alone can secure union and energy among them. There is but one common solvent. The law of their union is public opinion. That and that alone can draw them together. That part of the government, therefore, which has the most direct access to opinion has the best chance of leadership and mastery; and at present that part is the President. Each part of the government loses force and prestige in proportion as it ceases to give, and to give publicly, con- clusive reasons for what it is doing and for what it is declin- ing to do. The country in the long run is more interested to know that the right thing has been done and that it has been done wisely than to know merely that something has been done, hastily devised though well intended. There are seasons, it is true, when opinion, unduly excited, prefers action to counsel, but those are exceptional seasons among peoples trained to the thoughtfulness and self-control of constitutional action. Open counsel is of the essence of power, if the country's confidence is to be retained for any length of time. The most serious comment, therefore, upon the development of the House of Representatives is that in making itself an active part of the Government and falling into the silence of an effective, businesslike board of directors, it has forfeited the much higher office of gath- ering the common counsel of the nation and wielding the THE HOUSE OF REPRESENTATIVES 111 tremendous, the governing and sovereign, power of criti- cism. Criticism can make and unmake governments, but the conferences of committee rooms cannot. If the House must originate its own business and must be independent in action, it cannot be the voice of the nation. . THE SENATE It is very difficult to form a just estimate of the Senate of the United States. No body has been more discussed; no body has been more misunderstood and traduced. There was a time when we were lavish in spending our praises upon it. We joined with our foreign critics and appreciators in speaking of the Senate as one of the most admirable, as it is certainly one of the most original, of our political institutions. In our own day we have been equally lavish of hostile criticism. We have suspected it of every malign purpose, fixed every unhandsome motive upon it, and at times almost cast it out of our confidence altogether. The fact is that it is possible in your thought to make almost anything you please out of the Senate. It is a body variously compounded, made many-sided by contain- ing many elements, and a critic may concentrate his atten- tion upon one element at a time if he chooses, make the most of what is good and put the rest out of sight, or make more than the most of what is bad and ignore everything that does not chime with his thesis of evil. The Senate has, in fact, many contrasted characteristics, shows many faces, lends itself easily to no confident generalization. It differs very radically from the House of Representatives. The House is an organic unit; it has been at great pains to make itself so, and to become a working body under a 112 THE SENATE 113 single unifying discipline; while the Senate is not so much an organization as a body of individuals, retaining with singularly little modification the character it was originally intended to have. As I have already said in a previous lecture, it is impos- sible to characterize the United States in any single general- ization; and for that very reason it is impossible^, to sum up the Senate in any single phrase or summary description. For the Senate is as various as the country it represents. It represents the country, not the people: the country in its many diverse sections, not the population of the coun- try, which tends to become uniform where it is concen- trated. Most of the leading figures among the active public men of the country are now to be found in the Senate, not in the House. This was not formerly the case. Before the House became an effective, non-debating organ of business, it shared quite equally with the Senate the leading politi- cians of the country ; but it has not been so of recent years. Organization swallows men up, debate individualizes them, and men of strong character and active minds always prefer the position in which they will be freest to speak and act for themselves. The Senate has always been a favorite goal of ambition for our public men, but it has become more and more the place of their preference as the House has more and more surrendered to it the function of public counsel. Of course, there are fewer senators than members of the House, and it is a more conspicuous thing to be one of a body of ninety than to be one of a body of three hundred and fifty-seven. Moreover, the tenure of a senator of the United States is three times as long as the tenure of a 114 CONSTITUTIONAL GOVERNMENT IN UNITED STATES member of the House of Representatives, and every mem- ber of the Senate must feel it a considerable advantage that six years instead of two are given him in which to make his impression on the country. There is time to find out what he is about and to master a difficult task. Both the smaller membership of the Senate and the longer term of its members contribute to individualize the men who com- pose it and to give them an advantage and importance which members of the House do not often have, unless they rise to one of the three or four places of real power which crown the committee organization of the representative chamber. And yet these are not the radical and fundamental differ- ences between the House and the Senate. Size and tenure are after all matters of detail. They count, and count a good deal, in giving the Senate its character, but they do not go to the root of the difference between the two houses. What gives the Senate its real character and significance as an organ of .constitutional government is the fact that it does not represent population, but regions of the coun- try, the political units into which it has, by our singular' constitutional process, been cut up. The Senate, therefore, represents the variety of the nation as the House does not. It does not draw its membership chiefly from those parts of the country where the population is most dense, but draws it in ecpal parts from every state and section. It seems to me that those critics of our government — they are, I believe, without exception domestic critics — who criticize the principle upon which the Senate is made up on the ground that states having little wealth and small population have as many representatives in the Senate as the richest and most populous states of the THE SENATE 115 Union, the newest and least developed as many as the old- est and most highly organized, entirely mistake the stand- ard by which the Senate should be judged as an instru- mentality of constitutional government in a system like ours. Thexj^^embirely wrong in assuming, for one things that the newer, weaker, or more sparsely populated parts of the country have less of an economic stake in its general policy and_deyeiopment than the older states and those which have had a great industrial development. Their stake may not be equal in dollars and cents, — that, of course, — but it is probably greater in all that concerns opportunity and the chances of life. There is a sense in which the interest of the poor man in the prosperity of the country is greater than that of the rich man: he has no reserve, and his very life may depend upon it. The very life of an undeveloped community may depend upon what will cause a richer community mere temporary inconvenience or negligible distress. And yet even this, vital as it is to the validity of the usual criticisms of the make-up and char- acter of the Senate, is in fact neither here nor there as com- pared with the essential point of the matter. Neither is it of material consequence that some of the states represented in the Senate are not real communities, with distinct historical characteristics, a distinct social and economic character of their own, as most of the older states are. It is true that you have only to look at a map of the United States to see at a glance that many of the newer states of the Union are purely arbitrary creations, their boundaries established by the theodolite of the pub- lic surveyor. They are squares on a great checker-board, elaborated into rectangular sections on broad plains where 116 CONSTITUTIONAL GOVERNMENT IN UNITED STATES there are no natural boundaries to divide region from region; and these artificial squares, which Congress first laid off as the areas of territories, it has one by one con- verted into states, each of which sends two members to the Senate, just as Virginia and Massachusetts do, the history of whose boundaries and organization is a long history of constitutional struggle which gave them from the very outset characters and purposes of their own. Many a square western state, laid out by the public sur- veyor, has now a more homogeneous population and a more discernible individuality than some of her eastern sisters into whom a miscellaneous immigration has poured social chaos. And their very separateness of political organization insures them a development of their own. Yet even that is not of material consequence. Even if every state of the Union were of artificial creation, not a natural community, but merely a region marked off to make a congressional district for elections to the Senate, the principle I am just now interested in pointing out as of capital importance in a system and country like ours would not be altered or affected. That is the principle that regions must be represented, irrespective of popula- tion, in a country physically as various as ours and there- fore certain to exhibit a very great variety of social and economic and even political conditions. It is of the utmost importance that its parts as well as its people should be represented; and there can be no doubt in the mind of any one who really sees the Senate of the United States as it is that it represents the country, as distinct from the accumulated populations of the country, much more fully and much more truly than the House of Representatives does. The East and North are regions of concentration, i THE SENATE 117 regions of teeming population and highly developed in- dustry, — the regions north of Mason and Dixon's Line and east of the Mississippi. It will not long be so. Cities are springing up in the South and beyond the Mississippi in the Middle West, on the Pacific coast, and upon the great lines of traffic that connect coast with coast, which will presently rival the cities of the East and of the old North- west in magnitude and importance; and many a region hitherto but sparsely peopled is thickening apace with crowding settlers and an accumulating commerce. But for the present the South and West, if I may use those terms in the large, are not the centres of wealth or of population, and have a character unlike that of the marts of trade and industry; and there are more senators from the South and West than from the North and East. The House of Representatives tends more and more, with the concentration of population in certain regions, to represent particular interests and points of view, to be less catholic and more and more specialized in its view of national affairs. It represents chiefly the East and North. The Senate is its indispensable offset, and speaks always in its make-up of the size, the variety, the heterogeneity, the range and breadth of the country, which no community or group of communities can adequately represent. It cannot be represented by one sample or by a few samples; it can be represented only by many, — as many as it has parts. It thus happens that there are in the Senate more repre- sentatives of the individual parts of the country than of the characteristic parts of it. At least that is true if I am right in assuming that the characteristic parts of America are those parts which are most highly developed, where 118 CONSTITUTIONAL GOVERNMENT IN UNITED STATES population teems and great communities are quick with industry, where our life most displays its energy, its ardor of enterprise, its genius for material achievement. Other communities are no doubt more truly characteristic of America as she has been known in the processes of her making. Only modern visitors, visitors of our own day, have known her as industrial America, the leader of the world in all the processes, whether material or economic, which produce wealth and accumulate power, the land of manufactures and of vast cities. The older America is still represented by the South and West with their simpler life, their more scattered people, their fields of grain, their mines of metal, their little towns, their easier pace of intercourse, their work that does not crowd out companionship. Certainly it is easier to represent a northern or eastern constituency in Congress than to represent a southern or western constituency. There is more individuality, man for man, in the West and South than in the East and North. How constantly we repeat each other's opinions and bow to each other's influence; how seldom we take leave to be ourselves and utter thoughts of our own genuine coinage, in regions where we are parts of a packed and thronging multitude ! Rubbing shoulders every day with thousands of your fellow-citizens, putting your mind into contact with other minds at every encounter, you slowly have the individuality rubbed out of you by mere attrition and are worn down to a common pattern. Your opinion is everybody's opinion; my information is the common information current everywhere: your mind, like mine, like our neighbor's, is assaulted day and night with the multitudinous voices of clamorous talk, and a common atmosphere gives us a common habit and attitude. Only THE SENATE 119 very unusual men can remain individual under such pressure of uniformity. It is uncomfortable to be singular in any habit, whether of action or of thought, where so many look on and make comment. Conformity is the easiest, plain- est, safest way, and countless multitudes there be that walk in it. " Always be of the opinion of the person with whom you are conversing," was Dean Swift's advice to all who would win the repute of being sensible persons. And in crowded places of enterprise it is a very valuable asset of success to be thus reputed a man of sense. To conform opens the ways to promotion. It is the common and very uncomfortable fortune of men of original views to be greeted at every turn with a stare and a shrug of the shoulders, as Mr. Bagehot has said, and to be followed with the comment, "An excellent young man, sir, but unsafe, quite unsafe." Mr. Bagehot must certainly have known: he was himself most singularly original and seemed always to have had the freshness of youth about him. The variety of the country, therefore, is better repre- sented in the Senate than in the House, its variety of opinion as well as its variety of social and economic make- up, — its variety of opinion because its variety of social and economic make-up. There are more opinions because there is more individuality in the uncrowded South and West than in the crowded East and North. Each mind is there apt to have a greater, freer space about it, space in which to look around and form impressions of its own. No country ought ever to be judged from its seething centres. To be truly known, it must be known where it is quiet, in places where impulse is not instant, hot, insistent; where you can at least presume that opinion will next week be what it is to-day. 120 CONSTITUTIONAL GOVERNMENT IN UNITED STATES In those hot centres of trade and industry, where a man's business grips him like an unrelaxing hand of iron from morning to night and lies heavily upon him even while he sleeps, few men can be said to have any opinions at all. They may bury their heads for a few minutes in the morning paper at breakfast or as they hurry to their offices, may dwell with dull attention upon the afternoon paper as they go wearily home again or drowse after dinner; but what they get out of the papers they cannot call their opinions. They are not opinions, but merely a miscellany of mental reactions, never assorted, never digested, never made up into anything than can for the moment compare in reality and vitality with the energetic conceptions they put to use in their business. In small towns, in rural country-sides, around comfortable stoves in cross-road stores, wherever business shows as many intervals as transactions, where seasons of leisure alternate with seasons of activity, where large undertakings wait on slow, unhast- ing nature, where men are neighbors and know each other's quality, where politics is dwelt upon in slow talk with all the leisure and fond elaboration usually bestowed on gossip, where discussion is as constant a pastime as checkers, opinion is made up with an individual flavor and wears all the variety of individual points of view. And the Senate has more members from such regions than from those where opinion is made up by conglomeration and upon the moment, out of newspapers and not out of the contributions of individual minds. It represents the popu- lation of the country, not in its numbers, but in its variety; and it is of the utmost consequence that the country's variety should be represented as thoroughly as its mass. The processes by which we have made states out of THE SENATE 121 the territories of the United States have been seriously impaired once and again by mistakes which are the more to be deplored because they are apparently irremediable. Once make a state and you cannot unmake it. Once or twice Congress has admitted to the Union, in equal partner- ship with the older states, territories which not only did not have population enough to justify their admission, but which had no real prospect of gaining a population large and various enough to develop into compact and im- portant communities with a character and purpose of their own, — communities already sufficiently represented in kind in the counsels of the country, and not constituted in a way which gave promise of political vitality. But such mistakes have been few, and many a state which at first seemed a premature and unjustifiable creation has been speedily lifted to a plane of real dignity and impor- tance by the abounding forces of our national growth. It has been hard to make mistakes where populations throng forward so steadily and in such wholesome masses to occupy the free spaces of the continent. We have had to reclaim deserts to accommodate their multitude. And as each new-fledged state has come in, its two spokes- men in the Senate have added its voice to our counsels in a place where voices can still be individually heard. The fact that the Senate has kept its original rules of debate and procedure substantially unchanged, is very significant. It is a place of individual voices. The sup- pression of any single voice would radically change its constitutional character ; and, its character being changed, the individual voices of the country's several regions being silenced, there would no longer be any sufficient reason for its present constitution. If it were to follow the ex- i 122 CONSTITUTIONAL GOVERNMENT IN UNITED STATES ample of the House and make itself chiefly an efficient organ for the transaction of business, the critics who con- demn it because it is unequally compounded upon any balanced reckoning of the wealth and numbers of the coun- try would have not a little tenable ground to stand upon. Another circumstance gives a senator of the United States an individual importance which the average member of the House of Representatives lacks. He comes into contact with a much greater variety of the public business. He is not a mere legislator. He is directly associated with the President in some of the most delicate and important functions of government. He is a member of a great executive council. He is brought into very confidential relations with the President in matters which oftentimes call for not a little discretion and for very prudent judg- ments, — judgments not to be drawn from public opinion, but only from official facts privately considered, not spoken of out of doors, belonging to intimate counsel and not to public debate. There is no better cure for thinking dis- paragingly of the Senate than a conference with men who belong to it, to find how various, how precise, how com- prehensive their information about the affairs of the nation is; and to find, what is even more important, how fair, how discreet, how regardful of public interest they are in the opinions which they will express in your private ear. The most reticent men in Washington are the members of the Supreme Court of the United States. It would of course be a great breach of professional honor on the part of any member of that Court to discuss any question in- volved in a pending case which the Court was considering or was about to consider; but his obligation of reticence goes much farther than that. Almost any piece of public THE SENATE 123 policy that touches the individual, though it be never so indirectly, may sooner or later come before the Supreme Court for judicial examination. Every member of the Court, therefore, feels bound to keep his opinions upon such matters to himself. He will not discuss with you any but the most general public questions, holds discreetly silent with regard to every mooted matter of legal policy or construction. Men who know the proprieties never broach such matters with members of the Court. Senators feel a similar obligation of honor with regard to the matters in which they bear a confidential relation to the executive. They are not at liberty to state to you or even to their constituents at home the grounds for such action as they may have taken in executive sessions of the Senate until the whole matter is so long gone by that no possible harm or embarrassment can come of publicity with regard to it. Members of the House are not under such restraints. Nothing comes before the House of Representatives which it is not the right of every man in the United States to discuss if he will. No doubt members sometimes act upon private information from the White House or a depart- ment which they would feel it unwise to make generally known; but that seldom happens, and if the House talked at all, it might talk about anything it chose that it had information enough to understand. It is no essential part of our present study to ask by what influences either members of the House or members of the Senate obtain their seats. That is a question con- cerning, not the form and purpose of our political institu- tions, but the moral character of the nation itself, the social influences which work in it for good or evil. But so much has been said in recent years about the methods 124 CONSTITUTIONAL GOVERNMENT IN UNITED STATES by which seats in the Senate are secured, so much that is of evil report has been believed, that the question cannot be passed by without giving our whole inquiry the appear- ance of a lack of candor. And, after all, any serious loss of prestige it may suffer must greatly impair the Senate's power and influence, its usefulness as an instrument of constitutional government. It has become customary to speak of it as a rich man's club, and any writer who professes to adduce proofs that the corporate interests of the country, the great railroads and the greater trusts, have secured virtual control of it by putting into it men of their own choice, engaged in their behalf by one of influence or another to block any legislation likely to harm them, gains easy credence. Where there is so much smoke, must there not be a little fire? It is a question which touches the integrity of our whole constitutional system. It would be affectation to avoid it. There are many opinions as to the way in which men obtain seats in the Senate ; and I dare ^ay that for every opinion there is a corresponding method, — not just the method suggested by the opinion, but sufficiently like it to give the opinion more than plausible color. There are many ways of getting into the Senate. There are some very bad ways ; some ways that are neither bad nor good ; and some very good ways. What it interests me most to observe with regard to the matter, in view of what I have just been saying of the make-up of the Senate and its gen- eral relation to the country, is that, so far as one may judge from rumor and from what appears in the public prints, the bad ways have been oftenest illustrated where population is thickest and in a few of the recently created states, which, because of their peculiar economic character, THE SENATE 125 are dominated by a single interest or a single group of interests. They have not often been illustrated, to be more specific, in those normal western and southern states, which I have spoken of in contrast with the centres of population and industry as standing for the nation's variety, characteristic of its rich diversity alike of quality and of interest rather than of its accumulations of wealth and of material power. The purchasing power of money in politics is chiefly exerted where there is most money. The selfish influence of great corporations is most often exhibited where they have their seats of control, at the financial centres of the country. The processes by which men procure places in the Senate have been most often under suspicion where men buy most things. One is forced to believe that there are some communities, even in the America which we love, where the dollar is god, where everything is esti- mated in money value, and where actual cash is paid for votes ; and unquestionably there are other communities in which the highest political preferment has sometimes been bought, not by the direct use of money, but by means equally demoralizing, — perhaps more demoralizing because less obviously venal, — by a covert bartering of favors, unspoken promises, business opportunities offered and accepted without any sign given of aught but kindly interest and natural friendship. But the whole country knows the cases in which these things are suspected, and knows them to be few. No candid man who knows any- thing of the character and circumstances of the persons whose names he reads can look through the roll of the Senate and think for a moment that such influences pre- dominate there. 126 CONSTITUTIONAL GOVERNMENT IN UNITED STATES In order to get a correct impression of the Senate, it is necessary that you extend your observation beyond particular sections of the country. One of the greatest disadvantages that public opinion labors under in the United States is that we have no national newspaper, no national organ of opinion. There is no newspaper in the United States which is not local, and narrowly local at that, both in the news which it prints and in the views which it expresses. Each paper makes such selections of general news as will interest the particular locality in which it is printed, and expresses such views of the nation's affairs as local interest or information suggest* If you read New York papers, you will have New York opinions; if you read Philadelphia papers, you will have Philadelphia opin- ions; if you read Chicago papers, you will have Chicago opinions ; if you read San Francisco papers, you will have, not western, but merely San Franciscan, opinions. And if you read papers from all four cities, you will not get na- tional opinion. Though the impressions they give you may sometimes seem to have the air of being national, you will find that they are after all local impressions, though made up out of national material. They bear the color of a place. I dare say the thing is inevitable in so big a country ; but undoubtedly one of the reasons why we so habitually misjudge the Senate of the United States is that we have no national medium of intelligence, and the papers most widely read reflect not national, but local, conditions. Indeed, one of the serious difficulties of politics in this country, whether you look at it from the point of view of the student or the point of view of the statesman, is its provincialism, — the general absence of national infor- mation and, by the same token, of national opinion. And THE SENATE 127 one is forced to believe, reluctantly enough if he live in the East, that the East is the most provincial part of the Union, — a very serious matter, because most of our information and most of our opinion is printed in the East and transmitted thence. The East, being the oldest part of the country, having been for a long time the whole of it, having the oldest roots of history, the longest traditions of influence, the greatest wealth and hitherto an unques- tioned command of the economic development of the whole country, shows as yet little intimate consciousness of the rest of it; is much less aware of other communities and other interests than its own than are other parts of the country. The chief reason why the President of the United States can concentrate in himself, if he choose, greater power and a more extended influence than any other person or any other group of persons connected with the government, is, as I have already several times pointed out, that all the country is curious about him and interested in him as our one national figure, eager to hear everything that emanates from him. His doings and sayings con- stitute the only sort of news that is invariably transmitted to every corner of the country and read with equal interest in every sort of neighborhood. He is the one person about whom a definite national opinion is formed and, therefore, the one person who can form opinion by his own direct influence and act upon the whole country at once. It has, therefore, too often escaped the attention of the country as a whole that the large majority of the members of the Senate of the United States obtain their seats by perfectly legitimate methods, because the people whom they represent honestly prefer them as representa- tives; that the large majority of them are poor men who 128 CONSTITUTIONAL GOVERNMENT IN UNITED STATES have little or nothing to live on besides their inadequate salaries; that the opinion and action of the Senate are for the most part determined by the influence of quiet men whom the country talks about very little and about whom it suspects nothing in the least questionable or dishonorable ; and that the few notorious members whose reputations are most talked of generally play but a very obscure part in its business. In most of the states great corporations, great combinations of interest, have little to do with the choice of senators. Men go to the Senate who are in a very real sense the choice of the people, — or rather men to whom natural and genuine political leadership has come by reason of their personal force or of their services to their party, — men of the rank and file who have made their way to the top by political, not by commercial, means, and who enjoy a veritable popular support. There are one or two very influential members of the Senate who are also very rich men; but they are influential, not be- cause of their riches, but because of their long and intelli- gent service, their complete experience in affairs, and the relations of intimate personal confidence which they have established with their fellow senators. You have but to make the most casual inquiries in Washington to ascertain that the men who are in fact most influential in the pro- ceedings of the Senate are not the men most advertised in the newspapers, most conspicuous in the talk of the Capitol, not the men who talk most effectively for those far-off " galleries" which lie away from Washington, but small groups of quiet gentlemen seldom spoken of in the public prints, more thoughtful of their duties than of being generally talked about, — men who have not laid by fortunes, but who have been at the pains to grow rich in the esteem THE SENATE 129 of the fellow citizens at home who know and support them. One of the present difficulties lying in the way of main- taining a high grade of excellence in the Senate, as in the House, is that we do not pay our. representatives in either house salaries large enough to command men of the best abilities, or even sufficiently to support those who accept seats in the houses, in the sort of domestic comfort and dignity we naturally expect them to maintain. Men of the highest ability do accept seats in the House and Senate, but they do so generally at a great sacrifice, find it exceed- ingly difficult to live in so expensive a place as Washington without a very teasing economy, and are usually forced at last to seek some remunerative employment in order to pay the debts they have almost inevitably accumulated in serving a country which economizes in the wrong items of its budget. If the Senate should ever come to deserve in fact the reputation of being a rich men's club, the true cause will be found rather in the salary account on our national budget than in the power of wealth to buy legis- lative seats. As it stands now, only rich men can afford, if they be in love with self-respecting ways of living, to accept an election in the Senate. This, then, is the Senate, the House of individuals, a body of representative American men, representing the many elements of the nation's make-up, exhibiting the vitality of a various people, speaking for the several parts of a country of many parts and many interests, a whole and yet full of sharp social and political contrasts; men much above the average in ability and in personal force; men connected in most cases by long service with the business of the government and accustomed to handle 130 CONSTITUTIONAL GOVERNMENT IN UNITED STATES its affairs in all their range and variety; a body of coun- selors who act, if not always wisely or without personal and party bias, yet always with energy and without haste. It is interesting to the looker-on in Washington to observe the unmistakable condescension with which the older members of the Senate regard the President of the United States. Dominate the affairs of the country though he may, he seems to them at most an ephemeral phenome- non. Even if he has continued in his office for the two terms which are the traditional limit of the President's service, he but overlaps a single senatorial term by two years, and a senator who has served several terms has already seen several Presidents come and go. His expe- rience of affairs is much mellower than the President's can be; he looks at policies with a steadier vision than the President's; the continuity of the government lies in the keeping of the Senate more than in the keeping of the executive, even in respect of matters which are of the especial prerogative of the presidential office. A mem- ber of long standing in the Senate feels that he is the pro- fessional, the President an amateur. I have dwelt at some length upon the character and the true constitutional purpose of the Senate because that character and purpose govern its whole organization and action. It is as different from the House in organization as in character and constitutional position. Its power is not concentrated in its presiding officer as the power of the House is. On the contrary, its presiding officer is of all its constituent parts the least significant. In mere fact, the Vice President of the United States is, in any analysis of the powers and activities of the Senate, prac- tically negligible. Some occupants of that singular office THE SENATE 131 have, it is true, made a considerable impression upon the Senate and have left distinct marks of their individuality upon its record, particularly in matters of procedure. Men of great natural force and unusual personality cannot spend four years in the chair of so serious and so busy an assembly without leaving some memory of their influence. But the Vice Presidents of the United States have, almost without exception, whatever their natural vigor or instinct of initiative, felt that their relation to the Senate was purely formal. The Vice President is not a member of the Senate. His duties are only the formal and altogether impartial duties of a presiding officer. His position seems to demand that he should take no part in party tactics and should hold carefully aloof from all parlia- mentary struggles for party advantage. Its very dignity seems to rob it of vitality in respect of the only duties assigned to it by the Constitution. And yet the president pro tempore of the Senate, the Vice President's substitute upon occasion, is a vital political figure. He is chosen by his party associates of the majority to play a real part in the business of the assembly. He holds office at the pleasure of the Senate and is in a much more intimate and sympathetic relation with the party he represents than the Vice President of the United States can be. Once or twice it has looked as if the president pro tempore were likely to accumulate powers and prerogatives which might give his office a power and authority comparable with those of the Speaker of the House of Representatives. The Senate, like the House, prepares its business through the instrumentality of standing committees, and in 1828 it conferred upon its president pro tempore the authority to appoint its committees. But in 1833, for political 132 CONSTITUTIONAL GOVERNMENT IN UNITED STATES reasons which it is not necessary to detail here, it again changed its rule and resumed to itself the right to consti- tute its committees by its own choice by ballot. Again in 1837 it turned to the president pro tempore for relief and conferred upon him the power of appointment, the balloting having proved very cumbersome and burden- some; but in 1845 circumstances again compelled it to withdraw the authority. Many considerations seem to render the president pro tempore unavailable for such functions. The statute of 1792 had put the president pro tempore of the Senate in the line of succession to the presidency of the United States in case of a vacancy, pro- viding that if both President and Vice President should die or become disqualified, the president pro tempore of the Senate should assume the duties of the presidency. The Senate regarded its president pro tempore, therefore, as a necessary officer only in order that there should be no lapse in the office of President. It chose him only for the occasions when the Vice President was absent from his chair, and allowed his office to lapse again upon the Vice President's return. But a change in the law governing the succession to the presidency altered the whole character of the temporary office. In 1886 a new statute vested the succession in the heads of the executive departments, in an order of precedence determined by the dates at which their several offices had been created, and the president pro tempore of the Senate was omitted from the line of succession. Ten years before the Senate had decided that its president pro tempore need not be regarded as merely a temporary officer chosen from time to time upon the occasion of each absence of the Vice President from its sittings, and in 1890 it confirmed its decision in that THE SENATE 133 respect and extended the tenure of this officer of its own choice indefinitely. He now holds at the pleasure of the Senate, takes the chair whenever the Vice President hap- pens to be absent, and is superseded only by the election of some one else in his place. He is appointed to many important committees of the Senate like any ordinary member, is usually himself chairman of a leading commit- tee, and is always sure to be one of the chief figures of his party on the floor. Upon a change of majority his office lapses and a successor is chosen from the new majority. And yet, singularly enough, though he has grown in importance with the permanence of his office and has seemed once and again to be chosen as in some sense the leading representative of his party in the chamber, as the Speaker of the House is, he is not in fact in command in debate or in the direction of party tactics. The leader of the Senate is the chairman of the majority caucus. Each party in the Senate finds its real, its permanent, its effective organization in its caucus, and follows the leadership, in all important parliamentary battles, of the chairman of that caucus, its organization and its leader- ship alike resting upon arrangements quite outside the Constitution, for which there is no better and no other sanction than human nature. The Senate, like the House, digests and manages its business through standing committees, and the appoint- ment of those committees it has in large measure kept in its own hands. But the old method of actually choos- ing them by ballot it has not found it convenient or even possible to maintain. Its machinery for the selection of committees, as for other party purposes, is the caucus. The caucus of each party has its Committee on Committees, 134 CONSTITUTIONAL GOVERNMENT IN UNITED STATES appointed by its chairman, subject to the ratification of the caucus itself, and charged with the important function of selecting its party's representatives on the standing committees. The majority caucus has, besides, its Steer- ing Committee, similarly appointed, to which fall duties very like those of the Committee on Rules in the House. The chairman of the majority caucus is much more nearly the counterpart of the Speaker of the House than is the president pro tempore. His influence is very great and very pervasive. Through the Committee on Com- mittees and the Steering Committee, both of which he appoints subject to the confirmation of the caucus, he plays no small part in determining both the character and the handling of the business the Senate is called on to consider. But the Senate is a deliberative assembly and is under no such discipline of silence and obedience to its commit- tees as the House is. The duties of its committees are much more like those of ordinary old-fashioned committees such as are usually found in all parliamentary bodies, than are the duties of the House committees. They are by no means in complete control of the business of the Senate. A bill introduced by an individual senator may be put upon the calendar, debated, and voted upon without refer- ence to a committee at all. The committees are an imperative convenience, and the greater part of the Senate's business is of course prepared by them; but they are not permitted to monopolize the floor, and the chamber is quick to recognize the right of its individual members to have their proposals considered directly, with- out committee intervention. Moreover, the make-up of the committees of the Senate THE SENATE 135 is determined much more strictly by seniority and by personal privilege and precedence than is the membership of the committees of the House, with much less regard to party lines and much more regard to personal and sectional considerations, — by equitable arrangement rather than by the personal choice or individual purpose of the caucus chairmen. The variety of the country is allowed to show itself in the constitution of its committees, as in its debates and its recognition of individual privilege among its mem- bers. An old-fashioned air of equality and democracy is still perceptible in the Senate, its popular reputation to the contrary^ notwithstanding, — something of the dis- cipline of party whips and, leaders, as must in any politi- cal assembly be inevitable, but much more of the air of debate, much less the air of rigidly organized business and mere efficiency, than in the popular chamber. Indeed, the Senate is, par excellence, the chamber of debate and of individual privilege. Its discussions are often enough unprofitable, are too often marred by per- sonal feeling and by exhibitions of private interest which taint its reputation and render the country uneasy and suspicious, but they are at least the only means the country has of cl arifying public business for public comprehension. When we turn to the question which is the central question of our whole study, the question of the coordina- tion of the Senate with the other organs of the govern- ment and the synthesis of authority and power for common action, it at once becomes evident that such a body as I have described the Senate to be, must be very hard indeed to digest into any system. A coordination of wills, united movement under a common leadership, is of the very essence of every efficient form of government. The Senate has a 136 CONSTITUTIONAL GOVERNMENT IN UNITED STATES very stiff will of its own, a pride of independent judgment, very admirable in itself, but not calculated to dispose it to prompt accommodation when it differs in its views and objects from the House or the President. Its very excellences stand in its way as an organ of cooperation: its slow deliberation, its tolerance of individual opinion, its confidence in the political judgment and experience of its own leaders, the feeling of permanency and sta- bility which seems to lift it a little above the influences of the immediate day, the critical moment of decision. It looks upon the House of Representatives very much as it looks upon the President, — as an organ of opinion, indeed, and as a coordinate branch of the government of undoubted commission from the people, but as likely to change, a thing that, in its present character and dis- position at least, is here to-day and gone to-morrow, to make room for new men and new moods. The membership of the House is much less stable than the membership of the Senate. Not only is the term of a senator three times as long as the term of a member of the House, but members of the House are much less often reelected than are members of the Senate. Most states are content to continue their senators in their seats for long periods together, but few congressional districts can be counted upon not to change their choice very frequently. Not only does the personnel of the House change rapidly and the personnel of the Senate change very slowly, but the party majority is much more often changed in the one than in the other. For a great many years now the lead- ers of our national parties have been obliged to think of the country as one thing when considered with a view to the make-up of the Senate, and another thing when con- THE SENATE 137 sidered with a view to the make-up of the House. Parties have often changed places in commanding the majority in the House during the last fifty years, but not often in the Senate. The people reckoned by states have usually preferred the Republican party; the people reckoned by numbers have turned in their choice of men and of parties first to the one party and then to the other, as men and programs have changed. All this, of course, has its effect upon the temper of the Senate. It is less disturbed by elections than the House is, feels itself in great part sheltered from the winds of party contest, and is apt to look upon itself as the poise and makeweight of the whole system, which might swing into an erratic orb were it allowed to yield to the impulses of changing opinion too rapidly. And it is confirmed in this view of its functions by the character of its leaders. It must be said that the method by which leaders are made in the Senate is much more normal, much more in the course of nature, than the method by which they are made in the House. Nature intended that leaders should be self- selected, by proof given of their actual quality in the busi- ness in which they aspire to lead. And since leaders of the Senate are expected to lead in counsel, they are gen- erally men proved by counsel, men of long training in public affairs who have been under inspection by their fellow members for many sessions together. The Senate is inclined to follow its veterans, — not necessarily its chief debaters, but the men who by long service have gained a full experience and, by many evidences of good sense and cool judgment, the entire confidence of their party associates, as guides who will not blunder. The leaders of the House win their places by service on the floor, no doubt, 138 CONSTITUTIONAL GOVERNMENT IN UNITED STATES before being made Speakers, but they win them as masters of parliamentary tactics and as men of will and resource rather than as men of counsel; and they win them in a restless and changeful assembly few of whose members remain in the public service long enough to know any men's qualities intimately. The leaders the Senate prefers are almost of necessity its most conservative men, — men most likely to magnify the powers and prerogatives of the body they represent and to stickle for every privilege it pos- sesses, not at all likely to look to the President for leader- ship or to yield to the House upon any radical difference of opinion or of purpose. Particularly in its dealings with the President has the Senate shown its pride of independence, its desire to rule rather than to be merely consulted, its inclination to mag- nify its powers and in some sense preside over the policy of the government. There can be little doubt in the mind of any one who has carefully studied the plans and opinions of the Constitutional Convention of 1787 that the relations of the President and Senate were intended to be very much more intimate and confidential than they have been; that it was expected that the Senate would give the President its advice and consent in respect of appointments and treaties in the spirit of an executive council associated with him upon terms of confidential cooperation rather than in the spirit of an independent branch of the govern- ment, jealous lest he should in the least particular attempt to govern its judgment or infringe upon its prerogatives. The formality and stiffness, the attitude as if of rivalry and mutual distrust, which have marked the dealings of the President with the Senate, have shown a tendency to in- crease rather than to decrease as the years have gone by, THE SENATE 139 and have undoubtedly at times very seriously embarrassed the action of the government in many difficult and im- portant matters. The Senate has shown itself particularly stiff and jealous in insisting upon exercising an independent judgment upon foreign affairs, and has done so so often that a sort of cus- tomary modus vivendi has grown up between the President and the Senate, as of rival powers . » The Senate is expected in most instances to accept the President's appointments to office, and the President is expected to be very tolerant of the Senate's rejection of treaties, proposing but by no means disposing even in this chief field of his power. Ad- visers who are entirely independent of the official advised are in a position to be, not his advisers, but his masters; and when, as sometimes happens, the Senate is of one political party and the President of the other, its dictation may be based, not upon the merits of the question involved, but upon party antagonisms and calculations of advantage. The President has not the same recourse when blocked by the Senate that he has when opposed by the House. When the House declines his counsel he may appeal to the nation, and if public opinion respond to his appeal the House may grow thoughtful of the next congressional elections and yield; but the Senate is not so immediately sensitive to opinion and is apt to grow, if anything, more stiff if pressure of that kind is brought to bear upon it. But there is another course which the President may follow, and which one or two Presidents of unusual politi- cal sagacity have followed, with the satisfactory results that were to have been expected. He may himself be less stiff and offish, may himself act in the true spirit of the Constitution and establish intimate relations of confidence 140 CONSTITUTIONAL GOVERNMENT IN UNITED STATES with the Senate on his own initiative, not carrying his plans to completion and then laying them in final form before the Senate to be accepted or rejected, but keeping himself in confidential communication with the leaders of the Senate while his plans are in course, when their advice will be of service to him and his information of the greatest service to them, in order that there may be veritable counsel and a real accommodation of views instead of a final challenge and contest. The policy which has made rivals of the President and Senate has shown itself in the President as often as in the Senate, and if the Constitution did indeed intend that the Senate should in such matters be an executive council it is not only the privilege of the President to treat it as such, it is also his best policy and his plain duty. As it is now, the President and Senate are apt to deal with each other with the formality and punctilio of powers united by no common tie except the vague common tie of public interest, but it is within their choice to change the whole temper of affairs in such mat- ters and to exhibit the true spirit of the Constitution by coming into intimate relations of mutual confidence, by a change of attitude which can perhaps be effected more easily upon the initiative of the President than upon the initiative of the Senate. It is manifestly the duty of statesmen, with whatever branch of the government they may be associated, to study in a very serious spirit of public service the right accom- modation of parts in this complex system of ours, the accommodation which will give the government its best force and synthesis in the face of the difficult counsels and perplexing tasks of regulation with which it is face to face, and no one can play the leading part in such a matter with THE SENATE 141 more influence or propriety than the President. If he have character, modesty, devotion, and insight as well as force, he can bring the contending elements of the system together into a great and efficient body of common counsel. VI THE COURTS Our courts are the balance-wheel of our whole constitu- tional system; and ours is the only constitutional system so balanced and controlled. Other constitutional systems lack complete poise and certainty of operation because they lack the support and interpretation of authoritative, undisputable courts of law. It is clear beyond all need of exposition that for the definite maintenance of constitu- tional understandings it is indispensable, alike for the preservation of the liberty of the individual and for the preservation of the integrity of the powers of the govern- ment, that there should be some non-political forum in which those understandings can be impartially debated and , determined. That forum our courts supply. There the individual may assert his rights; there the government must accept definition of its authority. There the in- dividual may challenge the legality of governmental action and have it judged by the test of fundamental principles, and that test the government must abide; there the government can check the too aggressive self-assertion of the individual and establish its power upon lines which all can comprehend and heed. The constitutional powers of the courts constitute the ultimate safeguard alike of individual privilege and of governmental prerogative. It is in this sense that our judiciary is the balance-wheel 142 THE COURTS 143 of our entire system; it is meant to maintain that nice adjustment between individual rights and governmental powers which constitutes political liberty. I am not now thinking of the courts as the lawyer thinks of them, as places of technical definition and busi- ness adjustment, where the rights of individuals as against one another are debated and determined ; but as the citizen thinks of them, as his safeguard against a too arrogant and teasing use of power by the government, an instrument of politics, — of liberty. Constitutional government exists in its completeness and full reality only when the individual, only when every individual, is regarded as a partner of the government in the conduct of the nation's life. The citizen is not individually represented in any assembly or in any regularly constituted part of the government itself. He cannot, except in the most extraordinary cases and with the utmost difficulty, bring his individual private affairs to the attention of Congress or of his state legislature, to the attention of the President of the United States or of the executive officer of his state ; he would find himself balked of relief if he did by the laws under which they act and exercise their clearly specified powers. It is only in the courts that men are individuals in respect of their rights. Only in them can the individual citizen set up his private right and interest against the government by an appeal to the fundamental understandings upon which the gov- ernment rests. In no other government but our own can he set them up even there against the government. He can everywhere set them up against other individuals who would invade his rights or who have imposed upon him, but not against the government. The government under every other constitutional system but our own is sover- 144 CONSTITUTIONAL GOVERNMENT IN UNITED STATES eign, unquestionable, to be restrained not by the courts but only by public opinion, only by the opinion of the nation acting through the representative chamber. We alone have given our courts power to restrain the govern- ment under which they themselves act and from which they themselves derive their authority. And this is not merely because lour constitutional under- standings are explicitly set forth in written documents which the courts must regard as part of the body of law they are charged to maintain and interpret, — the chief and fundamental part to which all other parts must give way ; 1 f or a very important part of the constitutional un- derstandings upon which the English government rests is written in Magna Carta and in the great Bill of Rights, and yet the English courts have no authority to check the law-making organs of the government even though they override Magna Carta and the Bill of Rights in the stat- utes which they enact. No doubt the definitions of Magna Carta and of the Bill of Rights lie at the foundation of all government and of all individual privilege in England, and if any statute of doubtful interpretation were brought before an English court which seemed in contravention of rights clearly stated in those documents, the court would interpret it in accordance with the terms of those revered instruments of liberty; but if a statute should in plain terms ignore the definitions and restrictions even of Magna Carta and the Bill of Rights, I understand that the court would be obliged to enforce it. Parliament is sovereign and can do what it pleases. Only the opinion of the nation can check or restrain it. Only repeal can set an obnoxious statute aside. No government is more entirely governed by opinion than the government of England, but it is gov- THE COURTS 145 erned by the general opinion of the nation, not by the particular opinion of the courts. This is not because the English courts have been less in- terested than our own to maintain individual rights and liberties or less liberal in their interpretation of individual privilege. No courts have been more liberal or more dis- posed to safeguard private privilege. The common law of England has, more than any other law, been a mirror of opinion and of social adjustment and has been made in its development to fit English life like a well-cut garment. Time out of mind English judges have liberalized and broadened it by reading into it good principle and en- lightened opinion. There are some notable old cases in the English law reports in which the judges declare all principles of right reason and of humanity to be parts of the common law of England without precedent. But there is no fundamental law susceptible of interpretation by the courts which defines or limits the powers of Parlia- ment. Magna Carta and the Bill of Rights define the rights of individuals as against the crown, but not as against Parliament, not as against those whom the nation has authorized to make its laws. Upon them no document which the courts can read or elucidate as law places any restraint. The courts must enforce whatever they enact. The powers of our law-making bodies are, on the con- trary, very definitely defined and circumscribed in docu- ments which are themselves part of the body of our law, and the decisions of the courts interpreting those docu- ments set those law-making bodies their limits. To us this power of the courts seems natural not only but of the essence of the whole system; but it is in fact extraordinary and has been looked upon by not a few of 146 CONSTITUTIONAL GOVERNMENT IN UNITED STATES our foreign critics with unaffected amazement. And they have been the more amazed because they did not find this extraordinary power conferred upon our courts in any part or sentence of our fundamental law. "The judicial power of the United States/' so run the quiet sentences of the Constitution, " shall be vested in one supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish" and " shall extend to all Cases in Law and Equity arising under this Constitution, the Laws of the United States, and Treaties made or which shall be made under their Authority." jit is only an infer- ence drawn by the courts themselves that "the laws of the United States and treaties made under their authority" shall be tested by the Constitution and disallowed if they lie outside the field of power it has granted Congress and the President, — a very plain inference, no doubt, but only an inference: an inference made upon analogy, drawn out of historical circumstances and out of a definite theory as to the origin of our government. There was never any sovereign government in America. The governments of the colonies were operated under charters granted by the English crown, and could legally exercise no powers which those charters did not confer. If they exceeded those powers, the king could annul their acts, and the king's courts could declare their charters forfeited. The same principle and practice still obtains with regard to the powers of the chartered English colonies. The constitution of Canada is "the British North America Act," an act of Parliament, federating the several prov- inces, giving each its legislature and its separate field of law, and setting over all the Governor and Parliament of the Dominion. Anything done either by the government THE COURTS 147 of the provinces or by the government of the Dominion in excess or contravention of the terms of the British North America Act is null and void and can be so treated by the courts of the Dominion itself, though an appeal lies in all cases of such consequence to the Judicial Com- mittee of the Privy Council in England, a court of the sovereign power. I The sovereign power now set over us is / the people. When the authority of the crown lapsed by revolution, they assumed it. For colonial charters they substituted their state constitutions, to which they pres- ently added the Constitution of the United States. Their sovereign grant of power can no more be exceeded than can the grants of the sovereign king of the older day or the sovereign Parliament of our own time. Statutes must conform to the Constitution and are null and void if they do not. Our constitutions are comparable, say Professor Dicey and Mr. Bryce, to the charters of great corporations, our statutes to their by-laws, our treaties to their contracts. No by-law or contract made by them will be upheld by any court if in contravention or excess of their charter powers. /Any English-speaking lawyer would have rea- soned the matter out as we have reasoned it out. None the less, plain inference though it be, this power of our courts renders our constitutional system unique. No other constitutional system has this balance and means of energy, — this means of energy for the individual citizen. The individual citizen among us can apply the checks of law to the government upon his own initiative, and they will respond to his touch as readily as to the touch of the greatest political officer of the system. More readily, indeed, for the courts will not hear abstract questions. Some concrete and tangible interest, involving the right i 148 CONSTITUTIONAL GOVERNMENT IN UNITED STATES of some particular individual or corporation, must be implicated, and implicated in some form which makes a legal inquiry and remedy both necessary and possible under the ordinary rules of suit and procedure. They will not take the question up otherwise, and an individual citi- zen is a more natural and usual party to such an inquiry than an officer of the government. An officer of the gov- ernment cannot be a party to a suit in his official capacity except as he represents some claim or defense of the gov- ernment itself. The rights of the individual touch the subject-matter of the law at a thousand points, and he may in mere controversy with his neighbor call in question rights which his neighbor professes to exercise under the authority of acts of Congress. No officer of the govern- ment need be or can be a party to such a suit; the court is adjudicating private rights and will not hesitate to set an act of Congress aside if it invade those rights in contra- vention or in excess of the powers granted Congress in the Constitution. Only by slow and searching labor have the courts been able to keep our singularly complex system at its right poise and adjustment. It has required a long line of cases to thread its intricacies and afford the individual a complete administration of its safeguards. It is a system of many counterpoises and prescriptions. First, there are the restrictions placed upon our governments in respect of the powers they can use upon the individual. Congress can exercise no powers except those explicitly or by plain implication conferred upon it by the Constitution. And there are certain things which it is explicitly forbidden to do. "The privilege of a writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion THE COURTS 149 public safety may require it. No Bill of Attainder or ex post facto Law shall be passed." The powers not granted to Congress remain with the states, but certain powers are denied the states by their own constitutions, some by the Constitution of the United States. "No State shall enter into any Treaty, Alliance, or Federation; grant Laws of Marque or Reprisal; coin money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law or Law impairing the Obligation of Contracts, or grant any Title of Nobility," is the language of Section X of the first article of the Constitution. And added to the restrictions placed upon state and federal governments by the Constitution of the United States are the still more complex and numerous limitations imposed upon the states by their own constitutions. All these, from whatever constitution drawn, the courts must interpret and enforce, i' In respect of all of them the courts are in- struments for the protection of the individual, i Besides these definitions and restrictions, which partake of the nature of a Bill of Rights, our constitutions apportion power between the states and the federal government, and that apportionment the courts must assist to make definite and secure. They apportion powers also to the several parts of our state and federal governments, the executive, the legislature, and the courts themselves, and this apportion- ment also the courts must define and maintain. It is thus that they are the balance-wheel of the whole system, taking the strain from every direction and seeking to maintain what any unchecked exercise of power might destroy. They are at once instruments of the individual against the government, of the government against the 150 CONSTITUTIONAL GOVERNMENT IN UNITED STATES individual, of the several members of our political union against one another, and of the several parts of govern- ment in their legal synthesis and adjustment. No wonder De Tocqueville marveled at the " variety of information and excellence of discretion" expected of the American citizen by the constitutional system under which he lives. All these things he may sooner or later find himself obliged to call upon the courts to adjudicate and keep at their right balance for his sake, that the terms of his partner- ship with the government may be strictly and righteously observed. It throws upon him a great responsibility and expects of him a constant and watchful independence. There is no one to look out for his rights but himself. He is not a ward of the government, but his own guardian. The law is not automatic; he must himself put it into operation, and he must show good cause why the courts should exert the great powers vested in them. They will not allow the validity of any statute or treaty or of any act of the gov- ernment to be called lightly in question or drawn unnec- essarily under discussion. He must show that, in order to determine definite, concrete rights of his own which are in dispute between himself and his opponent in litigation, it is necessary that the courts should answer the question he raises as to the validity of what the government has done or attempted; not drawing them on to an abstract thesis, but bringing them face to face with an actual question of law. If it lies in his direct way to do that, it makes no difference in what court he raises the question. It need not be the Supreme Court of the United States or the highest court of the state in which he brings suit. Any court can adjudicate the question of the constitutionality THE COURTS 151 of the acts of the government, if it have jurisdiction over the general subject-matter of the case in which the question is raised. The dignity of the question does not alter the jurisdiction. Of course, constitutional questions of capital importance are very likely to be carried sooner or later to the Supreme Court by processes of appeal, but they may originate in any court of any grade and belong not to the extraordinary but to the ordinary processes of adjudica- tion. It may fall in the way of any court in the ordinary administration of justice to compare by-laws with charters, statutes with constitutions, the subordinate parts of the law with the ultimate and fundamental parts, the acts of the government with their legal norms and standards. The same jurisdiction would no doubt spring up in England were the rules of the British constitution to be reduced to writing and put upon the footing of Magna Carta, were the authority of Parliament to be limited and defined by charter as the authority of the crown has time out of mind been. For English legal practice is the same as American. American practice was derived from it. In England, as in America, the individual citizen is bidden take care of himself, not only against his neighbor but also, if he can, against the government. In England, as in America, an officer of the law ceases to be an officer of the law when he acts in excess of his authority. He may be fined or imprisoned or executed as any other man would be if he overstep the limits of his warrant and authority and do things which he has no right to do. He has no authority but that which is legal and for which he can show rightful warrant. But it is not so in any other country. In every other country an officer of the government is an officer whatever he may do, and cannot be haled before the 152 CONSTITUTIONAL GOVERNMENT IN UNITED STATES ordinary courts. He will be restrained from doing illegal things, but only by his superiors, to whom injured per- sons must complain, or by special administrative tribunals provided for the purpose, before which the individual may cite him. No superior officer, no administrative court, will handle a complaint against him as an ordinary court would handle a suit or indictment. The offense charged will be looked at from the point of view of administrative offi- cers, as a public indiscretion rather than as a private wrong; great latitude will be allowed an officer of the law if he profess to act in the public interest and cannot be shown to have acted in malice. The atmosphere of the inquiry is the atmosphere of authority, and the dis- cipline applied will be the discipline of a corps, not the judgment of an ordinary court against a breaker of the law. Citizens are subjects, not partners of the govern- ment. It is against the whole spirit of our polity, on the contrary, that we should be running to the government with complaints. Our practice is built upon individual rights, and the individual is freely given the means to take care of himself in courts which are his own no less than they are the government's. The courts are meant to be the people's forum, open to all who wish the law determined. It is of the deeper consequence that the courts should in fact be open to all, equally accessible and serviceable to every man. If it be true, as it is nowadays common to charge, that our courts are serviceable only to the rich, we should look to it, for in that case our system is im- paired at its very heart; its poise and balance are gone. Are our courts as available for the poor as for the rich? It is not a question of impartiality or fairness, of disposi- THE COURTS 153 tion to hear the suit of the poor as readily and as atten- tively as the suit of the rich. Some inferior men are no doubt appointed to our federal bench; our state courts are many of them filled by processes of election which take account of the judge's political opinions and of his service to a political party rather than of his learning or of his rank among his fellow practitioners at the bar, and many men are chosen who are not suitable either in char- acter or attainments; but the average integrity of the American bench is extraordinarily high. There are not many courts of which it can justly be said that a man will be denied his legal rights because he is poor or with- out influential connections. The question I raise is of another kind. Are not poor men in fact excluded from our courts by the cost and the length of their processes? The rich man can afford the cost of litigation; what is of more consequence, he can afford the delays of trial and appeal; he has a margin of resources which makes it possible for him to wait the months, it may be the years, during which the process of adjudication will drag on and during which the rights he is contesting will be suspended, the interests involved tied up. But the poor man can afford neither the one nor the other. He might afford the initial expense, if he could be secure against delays; but delays he cannot abide without ruin. I fear that it must be admitted that our present processes of adjudication lack both simplicity and promptness, that they are un- necessarily expensive, and that a rich litigant can almost always tire a poor one out and readily cheat him of his rights by simply leading him through an endless maze of appeals and technical delays. If this be true, our very constitutional principle has 154 CONSTITUTIONAL GOVERNMENT IN UNITED STATES fallen into dangerous disrepair, and our immediate duty is to amend and simplify our processes of justice. There is no guarantee of liberty under a system like ours, if the courts be not as accessible and as serviceable to the poor man as to the rich. Of course, they never can be so literally. The processes of justice must always, if they are to be thorough, be deliberate, not hurried, often elabo- rate, not always simple. Even if they were available to the poor man without any cost whatever in money, they must in any case cost him something in time and trouble; and the very poor, tied to their tasks in fear of momentary need, cannot spend time or attention on anything which does not earn them bread. But it were shame upon us if we could not bring our courts nearer to the poor man than they are now, and the most immediately necessary reform of our system lies in that direction. The individual of whatever grade or character must be afforded opportunity to take care of himself, whether against the power of his neighbor or against the power of the government. : ^"~ I have spoken of the state and federal courts without discrimination. They are all branches of the people's forum. Constitutional questions may be determined by them all, of whatever grade, because individual rights must be adjudicated by them all. But it is interesting to observe the line that runs between state and federal jurisdictions. It affords a sort of insight into the character of our complex constitutional system which no other part of our study can afford.' The political relations between the states and the federal government I shall consider in another lecture, and inasmuch as their political relations rest in large measure in a system like ours upon their legal relations, I will re- serve also the greater part of what I have to say about the THE COURTS 155 law of their union and separation until all parts of the picture may be put together in a single sketch. But some part of the matter lies immediately under our eyes here. The tests of the federal Constitution can be applied in the state courts, and the tests of the state constitutions in the federal courts, but only in such a way as to make the federal courts the final judges of what the meaning and intent of the federal Constitution is, and the state courts the final judges and interpreters of what the state constitu- tions forbid or require. The Constitution of the United States makes the federal courts the forum for the trial, not only of cases arising under federal law, but also for the trial of suits between litigants who are citizens of different states and who have therefore no other common tribunal. Cases between citizens of different states need not be tried in the courts of the United States, if the litigants are con- tent to submit them to the courts of the state in which the cause of action arose; but the federal courts are open to them; and if in such a case tried in them it should be- come necessary to interpret the provisions of a state constitution, the federal courts must of course attempt that interpretation as they would attempt any other ques- tion the case might bring under their examination. But they would feel themselves obliged to adopt the interpreta- tion already put upon those provisions by the courts of the state whose constitution was under examination. Only when there were no decisions of the courts of the state upon the subject would they feel at liberty to follow their own reading and interpretation. The courts of the United States have not the right to impose upon litigants their own interpretations of the fundamental law of a state when that law in no way involves the jurisdiction or the 156 CONSTITUTIONAL GOVERNMENT IN UNITED STATES authority of the federal government, and in the trial of ordinary cases between citizens of different states they must hold themselves to the administration of state laws as they are interpreted by the courts of the states in which they originated. Similarly, the courts of the states are at liberty to deter- mine cases which involve an interpretation of the Constitu- tion of the United States. No question is foreign to them which belongs to a case regularly instituted before them; but they in their turn are bound to follow in such matters the decisions of the courts of the United States, so far as they may have covered the matter drawn in question. The courts of the United States must be the ultimate judges of the meaning and intent of federal law, as the courts of the states are of the principles of state law. A litigant in a state court may contend, for example, that some statute, or even some constitutional provision, of the state, under which his opponent is suing him or making defense, is in- consistent with the Constitution of the United States. If the court uphold him in this contention and treat the law which he challenges as null and void because inconsistent with federal law, there is an end of the matter. The court has upheld federal law against the law of the state, and no appeal can be taken to a court of the United States, — which could do no more. But if the court disallow the plea and declare the state law valid notwithstanding its alleged conflict with the law of the United States, the defeated litigant may take an appeal to the courts of the United States ; for with a federal tribunal must lie the final determination of the conflict, lest the state court might have been biased in favor of the law and privilege of the state under whose authority it acted. THE COURTS 157 The significance of this principle of action is that the federal government is, through its courts, in effect made the final judge of its own powers. In no case can a con- flict of authority between it and the government of a state be finally decided against it by a state court, by any court but its own, if the parties in interest choose to appeal. The whole balance of our federal system, therefore, lies in the federal courts. It is inevitable that it should be so. Our constitutional law could have no final certainty other- wise. "This Constitution, and the Laws of the United States which are 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:" such is the definite, uncom- promising language of the Constitution of the United States. No one can doubt that it was necessary for the mainte- nance of the system that the courts of the federal govern- ment should be the arbiters of all questions of disputed jurisdiction or conflicting authority. But of course such a principle constitutes the courts of the United States the guardians of our whole legal development. With them must lie the final statesmanship of control. For by according such powers to our courts we virtually vest in them the statesmanship of control. The Constitu- tion is not a mere lawyers' document: it is, as I have more than once said, the vehicle of a nation's life. No lawyer can read into a document anything subsequent to its execution ; but we have read into the Constitution of the United States the whole expansion and transformation of our national life that has followed its adoption. / We can 1/ 158 CONSTITUTIONAL GOVERNMENT IN UNITED STATES say without the least disparagement or even criticism of the Supreme Court of the United States that at its hands the Constitution has received an adaptation and an elabora- tion which would fill its framers of the simple days of 1787 with nothing less than amazement. The explicitly granted powers of the Constitution are what they always were; but the powers drawn from it by implication have grown and multiplied beyond all expectation, and each generation of statesmen looks to the Supreme Court to supply the interpretation which will serve the needs of the day. It is a process necessary but full of peril. It is easier to form programs than to exercise a wise and moderate con- trol, and the task of the courts calls for more poise, nicer discriminations of conscience, a steadier view of affairs, and a better knowledge of the principles of right action, than the task of Congress or of the President. Both the safety and the purity of our system depend on the wisdom and the good conscience of the Supreme Court. Expanded and adapted by interpretation the powers granted in the Constitution must be; but the manner and the motive of their expansion involve the integrity, and therefore the permanence, of our entire system of government. By common consent the most notable and one of the most statesmanlike figures in our whole judicial history is the figure of John Marshall. No other name is comparable with his in fame or honor in this singular field of states- manlike judicial control, — a field of our own marking out and creation, a statesmanship peculiar to our own annals. Marshall may be said to have created for us the principles of interpretation which have governed our national development. He created them like a great lawyer, master of the fundamental conceptions which THE COURTS 159 have enlightened all great lawyers in the administration of law and have made it seem in their hands a system of life, not a mere body of technical rules; he created them also like a great statesman who sees his way as clearly without precedent as with it to those renderings of charter and statute which will vivify their spirit and enlarge their letter without straining a single tissue of the vital stuff of which they are made. A thoughtful English judge has distinguished between those extensions of the meaning of law by interpretation which are the product of insight and conceived in the spirit of the law itself, and those which are the product of sheer will, of the mere determination that the law shall mean what it is convenient to have it mean. Marshall's interpretations were the products of insight. His learning was the learning of the seer, saturated with the spirit of the law, instinct with its principle of growth. No other method, no other principle has legitimate place in a system which depends for its very life upon its integrity, upon the candor and good conscience of its processes, upon keeping faith with its standards and its immemorial promises. One of the most dramatic and interesting scenes in our his- tory, the scene with which the imagination of the historian who is keenly alive to those processes of constitutional de- velopment which have made the nation and yet have threat- ened to unmake it is most engaged, is that enacted on the fourth of March, 1829, when Andrew Jackson, the sincere apostle of principles of action which were apt to make light of law, was sworn into office by John Marshall, the aged Chief Justice at whose hands the law of the nation had received alike its majesty and its liberal spirit of ordered progress. Jackson himself was not young. He had grown gray in 160 CONSTITUTIONAL GOVERNMENT IN UNITED STATES having his own way, in acting upon principles he deemed right, whether they had the warrant of law or not ; — no outlaw; on the contrary, a man of conscience and honor, but habituated to the principles of the frontier and of the field of battle, where action did not wait upon law but formed itself on the exigencies of the occasion. He took the oath of office in all solemnity and good faith, swear- ing "to the best of his ability to preserve, protect, and defend the Constitution of the United States." But he afterward explained, when he chose to ignore the de- cisions of the Supreme Court, uttered by Chief Justice Marshall in authoritative interpretation of the Constitu- tion, that he had sworn to uphold and preserve it as he understood it, and would take no dictation as to its mean- ing from any source but his own intelligence and con- science. The two men were at the antipodes from one another both in principle and in character; had no com- mon insight into the institutions of the country which they served; represented one the statesmanship of will and the other the statesmanship of control. General Jackson was a brave man, devoted to the performance of his duty with a genuine ardor of unselfish patriotism, and rendered ser- vices in his administration of the great office he held for which he must always be honored so long as the large inter- ests of the nation are understood; but he was the sort of man who might very easily twist and destroy our whole constitutional system, were the courts robbed of their authority and the great balance-wheel of their power shaken from its gearings. One might moralize upon the picture of these two old men standing there face to face at Jackson's inauguration until he had expounded the very genius of our institutions. Marshall, putting the THE COURTS 161 oath of office to Jackson, was repeating in quiet, modern form the transaction of Runny mede. Some German critics of our constitutional system, trained in another school of politics and another school of law, have looked upon the powers of our courts as a dan- gerous anomaly. We have, they say, taken our courts out of their proper sphere and put them where courts do not belong, in the field of politics, where they are set as masters over Congress and the President by whom the policies of the nation are formed. But such criticisms ignore both the principle of constitutional government and the actual practice of our courts. They emanate from men for whom all law is the voice of government and who regard the government as the source of all law, who can- not conceive of a law set above government and to which it must conform. It must be admitted that such a law is not everywhere essential to the maintenance of con- stitutional government. The English nation restrains its king by written compact, but it has never restrained its Parliament. Parliament its law leaves supreme because Parliament is representative of the nation, and opinion is strong and concerted enough to restrain it without law and the assistance of the courts. But we faced a very singular task when we undertook to combine the one-time colonies of England in America into a constitutional fed- eral state. There had been no time to form a national habit or accumulate precedents with regard to a common government. It was necessary to create it by law, to accommodate its various parts to one another by law, to define both its powers and the relations of the people to it by law. No other constitutional understanding was ever quite so detailed or so definite, no other constitutional 162 CONSTITUTIONAL GOVERNMENT IN UNITED STATES understanding ever rested upon just such foundations of circumstance and purpose. But we did not, with all our inventing, create anything abnormal or unnatural; and our continental critics mis- take the actual practice of our courts in acting upon con- stitutional questions. They do not act as instruments of politics, but only as modest instruments of law, as any other courts would. A very superficial examination of the constitutional decisions of the Supreme Court of the United States will suffice to show how careful it has been to refrain from even the appearance of dictating to Congress or to the executive. It has sought to respect their authority and to give full scope to their discretion in every possible way, at every possible point, never setting its judgment or opinion against theirs in any case which admitted of reason- able doubt, never drawing political questions into discus- sion, but confining itself most scrupulously to its proper business of adjudicating individual rights, whether those rights arise under the Constitution or under statutes; and it has demanded that a very clear case be made out against any act of Congress said by the litigants before it to be unconstitutional, before it would venture to set aside what Congress had ordained. In no instance has it acted upon political grounds when setting aside an act of Congress, but always upon clearly defined legal grounds, because the act had been shown to be inconsistent with indisputable provisions of the fundamental charter of the government itself. There could be no alternative in the case of a gov- ernment of limited and specified powers. And there has never been any serious friction between Congress and the courts. Occasional irritation there has been, of course. Congressmen have sometimes, forgetting THE COURTS 163 their constitutional principles, spoken in sharp and resent- ful criticism of the presumption of federal judges who have declared favorite pieces of legislation unconstitu- tional and refused to execute statutes by means of which politicians had hoped to store up credit to themselves or their party. Senators have shown a particular sensitive- ness in the matter. There are many distinguished lawyers in the Senate whose opinion upon points of law ought no doubt to be regarded as individually quite as weighty and conclusive as that of a district or circuit judge of the United States who has declined to enforce acts which had passed under their scrutiny. Second-class lawyers, it has been said in heat, men who had themselves once been members of the House or Senate and who had there shown their inferiority in legal discussion, venture, when appointed to seats on the bench, to set aside the judgments of the very men who formerly worsted them in debate upon those very questions. But members of Congress must usually be patient under these crosses. They will often remember that it was upon their own recommendation that these very men, their one-time comrades, were ap- pointed by the President; that the appointments passed the scrutiny of the Judiciary Committee of the Senate and were confirmed; and that the point of view of the lawyer in Congress is after all not always the point of view of the lawyer on the bench, whose concern is not with political considerations, but with the legal rights of the litigants before him and the exact maintenance of the terms of the law. There are instances which they will recall which are full of instruction. Mr. Salmon P. Chase, when Secretary of the Treasury under Mr. Lincoln, advocated the issue of 164 CONSTITUTIONAL GOVERNMENT IN UNITED STATES irredeemable paper currency in relief of the Treasury, and was largely instrumental in inducing Congress to pass the statutes which filled the country with " greenbacks/' declaring it to be his opinion that such issues were legal under the powers granted Congress in the Constitution; but Mr. Salmon P. Chase, when afterward Chief Justice of the United States, joined with the majority of that great court in declaring the legal tender acts unconstitu- tional. The thing might happen with the most conscien- tious lawyer. It is one thing to have to decide a matter of that kind in connection with important business you are conducting, and it is quite another thing to have it to decide as a judge lifted above all personal interest in the matter and bidden take it upon its merits, not as an advocate but as an arbiter. Undoubtedly federal judges may be mistaken and law- yers in Congress right, if the lawyers in Congress be of better stuff morally and intellectually than the judges they have recommended or allowed the President to appoint; but that simply points an old moral. No__rjart ^Kof agy goj&mmentjs any^^texJ)hanJJie--men^ ^^i]aiD- ister it. A distinguished member of a well-known reform club oncetold me that after twenty years of hard work in trying to further the objects of good government to which the club had devoted itself, he had a very humiliating confession to make. Throughout all those years he had labored assiduously to get the laws of the State in which he lived modified and improved, and to have all practices of which his club disapproved in state or city governments made illegal by statute. Year after year he had gone to the capital of the state and pressed every legitimate influ- ence he could command to induce the legislature to enact THE COURTS 165 the desired laws, and once and again he had succeeded. But government did not seem to be reformed, whatever his success. Old practices went on unchecked, or took new forms, or eluded the processes of law. It was a long lesson, and he had very stubbornly refused to learn it, but he had learned it at last and was now ready to make his confession that after all he had been mistaken: the way to reform government was to elect good men to con- duct it, and that was the whole matter. Good laws were desirable, but good men were indispensable, and could make K ' even bad laws yield pure and righteous government. E very government is a government of men, not of J aws, and of course the courts of the United States are no wiser or better than the judges who constitute them. A series of bad appointments might easily make them inferior to every other branch of the government in their compre- hension of constitutional principles, their perception of constitutional values. But that would be because the government had fallen into wrong hands, and would not invalidate the principle upon which our courts are con- stituted and empowered. It is an argument for electing the right men to the presidency and to the Senate, which confirms the President's appointments; it is not an argu- ment for changing our constitutional arrangements. The constitutional powers of the courts are no less indispensable, no less central and essential to our whole system and con- ception of government, because they are sometimes unwise or unintelligent in their exercise of them. Indeed, it is not easy to speak of this subject, so funda- mental, so deeply significant, without pausing to point out the interesting interdependence of the several parts of our government and the many contingencies upon which 166 CONSTITUTIONAL GOVERNMENT IN UNITED STATES their excellence and their integrity depend. The courts of the United States control the action of the other branches of the government in the interest of our fundamental constitutional understandings; and yet the courts of the United States are constituted by federal statute and by the President's appointment. The judicial power of the United States is vested "in one Supreme Court and in such inferior courts as Congress may from time to time ordain and establish"; only the Supreme Court exists by direct provision of the Constitution itself. Other courts Congress may establish or abolish, increase or de- crease, assign to this jurisdiction or to that. The Consti- tution provides, indeed, that all judges of the United States shall hold their offices during good behavior, but Congress could readily overcome a hostile majority in any court or in any set of courts, even in the Supreme Court itself, by a sufficient increase in the number of judges and an adroit manipulation of jurisdictions, and could with the assistance of the President make them up to suit its own purposes. These two "coordinate" branches of the government, to which the courts speak in such authoritative fashion with regard to the powers they may and may not exercise under the Constitution, — namely, Congress and the executive, — may, in fact, if they choose, manipulate the courts to their own ends without formal violation of any provision of the fundamental law of the land. There has never been any serious fear that they would do anything of the kind, though an occasional appointment to the Supreme Court has made the country suspicious and uneasy. But it is well to keep the matter clearly before us, if only that we may remind ourselves of the only absolute safeguards of a constitutional system. They lie in the character, the THE COURTS 167 independence, the resolution, the right purpose of the men who vote and who choose the public servants of whom the government is to consist. Any government can be corrupted, any government may fall into disrepair. It consists of men, and the men of whom it consists will be no better than the men who choose them. The courts are the people's forum ; they are also the index of the gov- ernment's and of the nation's character. The weightiest import of the matter is seen only when it is remembered that the courts are the instruments of the nation's growth, and that the way in which they serve that use will have much to do with the integrity of every national process. If they determine what powers are to be exercised under the Constitution, they by the same token determine also the adequacy of the Consti- tution in respect of the needs and interests of the nation; our conscience in matters of law and our opportunity in matters of politics are in their hands. There is so much to justify the criticism of our German critics; but they have not put their ringers upon the right point of criticism. It is not true that in judging of what Congress or the President has done, our courts enter the natural field of discretion or of judgment which belongs to other branches of government, — a field in its nature political, where lie the choices of policy and of authority. That field they respectfully avoid, and confine themselves to the neces- sary conclusions drawn from written law. But it is true that their power is political; that if they had interpreted the Constitution in its strict letter, as some proposed, and not in its spirit, like the charter of a business corporation and not like the charter of a living government, the vehicle of a nation's life, it would have proved a strait- jacket, a 168 CONSTITUTIONAL GOVERNMENT IN UNITED STATES means not of liberty and development, but of mere re- striction and embarrassment. I have spoken of the states- manship of control expected of our courts; but there is also the statesmanship of adaptation characteristic of all great systems of law since the days of the Roman praetor; and there can be no doubt that we have been singular among the nations in looking to our courts for that double function of statesmanship, for the means of growth as well as for the restraint of ordered method. But our courts have stood the test, chiefly because John Marshall presided over their processes during the for- mative period of our national life. He was of the school and temper of Washington. He read constitutions in search of their spirit and purpose and understood them in the light of the conceptions under the influence of which they were framed. He saw in them not mere negations of power, but grants of power, and he reasoned from out the large political experience of the race as to what those grants meant, what they were intended to accomplish, not as a pedant but as a statesman, rather ; and every genera- tion of statesmen since his day have recognized the fact that it was he more than the men in Congress or in the President's chair who gave to our federal government its scope and power. The greatest statesmen are always those who attempt their tasks with imagination, with a large vision of things to come, but with the conscience of the lawyer, also, the knowledge that law must be built, not wrested, to their use and purpose. And so, whether by force of circumstance or by deliberate design, we have married legislation with adjudication and look for states- manship in our courts. No one can truly say that our courts have held us back THE COURTS 169 or have ever exhibited a spirit of mere literalness and reaction. Many a series of cases has built the implica- tions of the Constitution out to meet the needs and the changing circumstances of the nation's life. The process has seemed at times a little too facile. The courts have seemed upon occasion to seek in the law what they wished to find rather than what frank and legitimate inference would yield. Once and again they have been all too com- placent in giving Congress leave to read its powers as best suited its convenience at a particular exigency in affairs. It is to be feared that they did so in connection with the many difficult questions which arose in regard to the settle- ments which followed upon the war between the states. But for the most part their method and their inferences have been conservative enough. The wonder is that they have kept so level a keel while serving a nation which has always insisted upon carrying so much sail. When the Constitution was framed there were no rail- ways, there was no telegraph, there was no telephone. / The Supreme Court has read the power of Congress to establish post-offices and post-roads and to regulate com- merce with foreign nations and among the several states to mean that it has jurisdiction over practically every matter connected with intercourse between the states. Railways are highways; telegraph and telephone lines are new forms of the post. The Constitution was not meant to hold the government back to the time of horses and wagons, the time when postboys carried every com- munication that passed from merchant to merchant, when trade had few long routes within the nation and did not venture in bulk beyond neighborhood transactions. The United States have clearly from generation to generation 170 CONSTITUTIONAL GOVERNMENT IN UNITED STATES been taking on more and more of the characteristics of a community ; more and more have their economic interests come to seem common interests; and the courts have rightly endeavored to make the Constitution a suitable instrument of the national life, extending to the things that are now common the rules that it established for similar things that were common at the beginning. The real difficulty has been to draw the line where this process of expansion and adaptation ceases to be legitimate and becomes a mere act of will on the part of the govern- ment, served by the courts. The temptation to overstep the proper boundaries has been particularly great in inter- preting the meaning of the words, " commerce among the several states." Manifestly, in a commercial nation almost every item of life directly or indirectly affects com- merce, and our commerce is almost all of it on the grand scale. There is a vast deal of buying and selling, of course, within the boundaries of each state, but even the buying and selling which is done within a single state constitutes in our day but a part of that great movement of merchan- dise along lines of railway and watercourse which runs without limit and without regard to political jurisdiction. State commerce seems almost impossible to distinguish from interstate commerce. It has all come to seem part of what Congress may unquestionably regulate, though the makers of the Constitution may never have dreamed of anything like it and the tremendous interests which it affects. Which part of the complex thing may Congress regulate ? Clearly, any part of the actual movement of merchan- dise and persons from state to state. May it also regulate the conditions under which the merchandise is produced THE COURTS 171 which is presently to become the subject-matter of inter- state commerce? May it regulate the conditions of labor in field and factory? Clearly not, I should say; and I should think that any thoughtful lawyer who felt himself at liberty to be frank would agree with me. For that would be to destroy all lines of division between the field of state legislation and the field of federal legislation. Back of the conditions of labor in the field and in the factory lie all the intimate matters of morals and of domes- tic and business relationship which have always been recognized as the undisputed field of state law; and these conditions that lie back of labor may easily be shown to have their part in determining the character and effi- ciency of commerce between the states. If the federal power does not end with the regulation of the actual move- ments of trade, it ends nowhere, and the line between state and federal jurisdiction is obliterated. But this is not universally seen or admitted. It is, therefore, one of the things upon which the conscience of the nation must make test of itself, to see if it still retain that spirit of constitutional understanding which is the only ultimate prop and support of constitutional government. It is questions of this sort that show the true relation of our courts to our national character and our system of gov- ernment. The relation of the courts to opinion is a difficult matter to state, and as delicate as difficult; yet it lies directly in our path. I have pointed out in previous lectures that opinion was the great, indeed the only, coordinating force in our system ; that the only thing that gave the President an opportunity to make good his leadership of his party and of the nation as against the resistance or the indiffer- 172 CONSTITUTIONAL GOVERNMENT IN UNITED STATES ence of the House or Senate was his close and especial relation to opinion the nation over, and that, without some such leadership as opinion might sustain the Presi- dent in exercising within the just limits of the law, our system would be checked of all movement, deprived of all practical synthesis by its complicated system of checks and counterpoises. What relation, then, are the courts to bear to opinion? The only answer that can be made is this: judges of necessity belong to their own generation. The atmosphere of opinion cannot be shut out of their court rooms. Its influence penetrates everywhere in every self -governed nation. v What we should ask of our judges is that they prove themselves such men as can dis- criminate between the opinion of the moment and the opinion of the age, between the opinion which springs, a legitimate essence, from the enlightened judgment of men of thought and good conscience, and the opinion of desire, of self -interest, of impulse and impatience. I What we should ask of ourselves is that we sustain the courts in the maintenance of the true balance between law and progress, and that we make it our desire to secure nothing which cannot be secured by the just and thoughtful processes which have made our system, so far, a model before all the world of the reign of law. VII THE STATES AND THE FEDERAL GOVERNMENT The question of the relation of the States to the federal government is the cardinal question of our constitutional system. At every turn of our national development we have been brought face to face with it, and no definition either of statesmen or of judges has ever quieted or decided it. It cannot, indeed, be settled by the opinion of any one generation, because it is a question of growth, and every successive stage of our political and economic development gives it a new aspect, makes it a new question. The general lines of definition which were to run between the powers granted to Congress and the powers reserved to the States the makers of the Constitution were able to draw with their characteristic foresight and lucidity; but the subject- matter of that definition is constantly changing, for it is the life of the nation itself. Our activities change alike their scope and their character with every generation. The old measures of the Constitution are every day to be filled with new grain as the varying crop of circumstances comes to maturity. It is clear enough that the general commercial interests, the general financial interests, the general economic interests of the country, were meant to be brought under the regulation of the federal government, which should act for all; and it is equally clear that what are the general commercial interests, what the general financial interests, what the general economic interests of 173 174 CONSTITUTIONAL GOVERNMENT IN UNITED STATES the country, is a question of fact, to be determined by cir- cumstances which change under our very eyes, and that, case by case, we are inevitably drawn on to include under the established definitions of the law matters new and unfore- seen, which seem in their magnitude to give to the powers of Congress a sweep and vigor certainly never conceived possible by earlier generations of statesmen, sometimes almost revolutionary even in our own eyes. The subject- matter of this troublesome definition is the living body of affairs. To analyze it is to analyze the life of the nation. It is difficult to discuss so critical and fundamental a question calmly and without party heat or bias when it has come once more, as it has now, to an acute stage. Just because it lies at the heart of our constitutional system to decide it wrongly is to alter the whole structure and operation of our government, for good or for evil, and one would wish never to see the passion of party touch it to distort it. A sobering sense of responsibility should fall upon every one who handles it. No man should argue it this way or that for party advantage. Desire to bring the impartial truth to light must, in such a case, be the first dictate alike of true statesmanship and of true patriotism. Every man should seek to think of it and to speak of it in the true spirit of the founders of the government and of all those who have spent their lives in the effort to confirm its just principles both in counsel and in action. Almost every great internal crisis in our affairs has turned upon the question of state and federal rights. To take but two instances, it was the central subject-matter of the great controversy over tariff legislation which led to attempted nullification and of the still greater controversy over the extension of slavery which led to the war between THE STATES AND THE FEDERAL GOVERNMENT 175 the States ; and those two controversies did more than any others in our history to determine the scope and character of the federal government. The principle of the division of powers between state and federal governments is a very simple one when stated in its most general terms. It is that the legislatures of the States shall have control of all the general subject-matter of law, of private rights of every kind, of local interests, and of everything that directly concerns their people as com- munities, — free choice with regard to all matters of local regulation and development, and that Congress shall have control only of such matters as concern the peace and the commerce of the country as a whole. The opponents of the tariff of 1824 objected to the tariff system which Congress was so rapidly building up, that it went much beyond the simple and quite legitimate object of providing the federal government with revenue in such a way as to stimulate without too much disturbing the natural development of the industries of the country, and was unmistakably intended to guide and determine the whole trend of the nation's economic evolution, preferring the industries of one section of the country to those of another in its bestowal of protection and encouragement, and so depriving the States as self-governing communities of all free economic choice in the development of their resources. Congress persisted in its course ; nullification failed as even so much as an effectual protest against the power of a government of which General Jackson was the head, — never so sure he was right as when he was opposed ; and a critical matter, of lasting importance, was decided. The federal govern- ment was conceded the power to determine the economic opportunities of the States. It was suffered to become a 176 CONSTITUTIONAL GOVERNMENT IN UNITED STATES general providence, to which each part of the country must look for its chance to make lucrative use of its material resources. The slavery question, though it cut deeper into the social structure of a great section of the country and contained such heat as could not, when once given vent, be restrained from breaking into flame, as the tariff controversy had been, was, after all, a no more fundamental question, in its first essential form, than the question of the tariff. Could Congress exclude slavery from the territories of the United States and from newly formed States ? If it could, mani- festly the slavery system, once restricted in territory, would in time die of the strictures which bound it. Mr. Lincoln was quite right when he said that no nation could exist half slave and half free. But that was only by consequence. The immediate question was the power of Congress to determine the internal social and economic structure of society in the several States thereafter to be formed. It is not to my present purpose to trace the circumstances and influences which brought on the Civil War. The abolition of slavery by war, though natural, was not the necessary or logical legal consequence of the contention that Congress legitimately possessed the power which it had exercised in the constitution of the Northwest Territory and in the enactment of the Missouri Compromise. What happened before the momentous struggle was over came about by the mere logic of human nature, under stress of human passion. What concerns me in the present discussion is that here, again, as in the building up of a fostering tariff, what turned out to be a far-reaching change in the very conception of federal power had as its central point of controversy the question of the powers of the States as THE STATES AND THE FEDERAL GOVERNMENT 177 against the powers of the government at Washington. The whole spirit and action of the government were deeply altered in carrying that question one stage further towards a settlement. And I am particularly interested to point out that here again, as in the tariff question, it was an inevitable con- troversy, springing, not out of theory, not out of the uneasy ambition of statesmen, but out of mere growth and im- perious circumstance, out of the actual movement of affairs. Population was spreading over the great western areas of the country ; new communities were forming, upon which lawyers could lay no binding prescriptions as to the life they should lead ; new Territories were constantly to be organized, new States constantly to be admitted to the Union. A choice which every day assumed new forms was thrust upon Congress. Events gave it its variety, and Congress could not avoid the influences of opinion, which altered as circumstances changed, as it became more and more clear what the nation was to be. It was of the very stuff of daily business, forced upon Congress by the opinion of the country, to answer the inevitable question, What shall these new communities be allowed to do with them- selves, what shall they be suffered to make of the nation? May Congress determine, or is it estopped by the reserved powers of the States ? The choices of growth cannot be postponed, and they seem always to turn upon some defini- tion of the powers of Congress, some new doubt as to where the powers of the States leave off and the powers of the federal government begin. And now the question has come upon us anew. It is no longer sectional, but it is all the more subtle and intricate, all the less obvious and tangible in its elements, on that 178 CONSTITUTIONAL GOVERNMENT IN UNITED STATES account. It involves, first or last, the whole economic movement of the age, and necessitates an analysis which has not yet been even seriously attempted. Which parts of the many sided processes of the nation's economic develop- ment shall be left to the regulation of the States, which parts shall be given over to the regulation of the federal govern- ment ? I do not propound this as a mere question of choice, a mere question of statesmanship, but also as a question, a very fundamental question, of constitutional law. What, reading our Constitution in its true spirit, neither sticking in its letter nor yet forcing it arbitrarily to mean what we wish it to mean, shall be the answer of our generation, pressed upon by gigantic economic problems the solution of which may involve not only the prosperity but also the very integrity of the nation, to the old question of the distribution of powers between Congress and the States? For us, as for previous generations, it is a deeply critical question. The very stuff of all our political principles, of all our political experience, is involved in it. In this all too indistinctly marked field of right choice our statesman- ship shall achieve new triumphs or come to calamitous shipwreck. The old theory of the sovereignty of the States, which used so to engage our passions, has lost its vitality. The war between the States established at least this principle, that the federal government is, through its courts, the final judge of its own powers. Since that stern arbitrament it would be idle, in any practical argument, to ask by what law of abstract principle the federal government is bound and restrained. Its power is a to regulate commerce be- | tween the States," and the attempts now made during every \ session of Congress to carry the implications of that power THE STATES AND THE FEDERAL GOVERNMENT 179 beyond the utmost boundaries of reasonable and honest / inference show that the only limits likely to be observed by| politicians are those set by the good sense and conservative! temper of the country. * The proposed federal legislation with regard to the regu- lation of child labor affords a striking example. If the power to regulate commerce between the States can be stretched to include the regulation of labor in mills and factories, it can be made to embrace every particular of the I industrial organization and action of the country. The j only limitations Congress would observe, should the ! Supreme Court -assent to such obviously absurd extrava- | gancies of interpretation, would be the limitations of opinion and of circumstance.^ It is important, therefore, to look at the facts and to understand the real character of the political and economic materials of our own day very clearly and with a statesman- like vision, as the makers of the Constitution understood the conditions they dealt with. If the jealousies of the colonies and of the little States which sprang out of them had not obliged the makers of the Constitution to leave the greater part of legal regulation in the hands of the States, it would have been wise, it would even have been necessary, to invent such a division of powers as was actually agreed upon. It is not, at bottom, a question of sovereignty or of any other political abstraction; it is a question of vitality. Uniform regulation of the economic conditions of a vast territory and a various people like the United States would be mischievous, if not impossible. The states- manship which really attempts it is premature and unwise. Undoubtedly the recent economic development of the country, particularly the development of the last two 180 CONSTITUTIONAL GOVERNMENT IN UNITED STATES decades, has obliterated many boundaries, made many interests national and common, which until our own day were separate and local ; but the lines of these great changes we have not yet clearly traced or studiously enough con- sidered. To distinguish them and provide for them is the task which is to test the statesmanship of our generation; and it is already plain that, great as they are, these new combinations of interest have not yet gone so far as to make the States mere units of local government. Not our legal conscience merely, but our practical interests as well, call upon us to discriminate and be careful, with the care of men who handle the vital stuff of a great constitutional government. The United States are not a single, homogeneous com- munity. In spite of a certain superficial sameness which seems to impart to Americans a common type and point of view, they still contain communities at almost every stage of development, illustrating in their social and economic structure almost every modern variety of interest and prejudice, following occupations of every kind, in cli- mates of every sort that the temperate zone affords. This variety of fact and condition, these substantial economic and social contrasts, do not in all cases follow state lines. They are often contrasts between region and region rather than between State and State. But they are none the less real, and are in many instances permanent and ineradicable. From the first the United States have been socially and economically divided into regions rather than into States. The New England States have always been in most respects of a piece; the southern States have had always more interests in common than points of contrast ; and the Middle States were so similarly compounded even in the day of THE STATES AND THE FEDERAL GOVERNMENT 181 the erection of the government that they might without material inconvenience have been treated as a single eco- nomic and political unit. These first members of the Union did, indeed, have an intense historical individuality which made them easily distinguishable and rendered it impossible, had any one dreamed of it, to treat them as anything but what they were, actual communities, quick with a character and purpose of their own. Throughout the earlier process of our national expansion, States formed themselves, for the most part, upon geographical lines marked out by nature, within the limiting flood of great rivers or the lifted masses of great mountain chains, with here and there a mere parallel of latitude for frontier, but generally within plots of natural limit where those who set up homes felt some essential and obvious tie of political union draw them to- gether. In later years, when States were to be created upon the great plains which stretched their fertile breadths upon the broad mid-surfaces of the continent, the lines chosen for boundaries were those which had been run by the theodolite of the public surveyor, and States began to be disposed upon the map like squares upon a great chess- board, where the human pieces of the future game of politics might come to be moved very much at will and no distinct economic, though many social, varieties were to be noted among neighbor commonwealths. But, while division by survey instead of by life and historical circumstance no doubt created some artificial political divisions, with regard to which the old theories of separate political sovereignty seemed inapplicable enough, the contrasts between region and region were in no way affected; and resemblances were rendered no more strik- ing than the differences which remained. We have been 182 CONSTITUTIONAL GOVERNMENT IN UNITED STATES familiar from the first with groups of States united in interest and character; we have been familiar from the first, also, with groups of States contrasted by obvious differences of occupation and of development. These differences are almost as marked now as they ever were, and the vital growth of the nation depends upon our recognizing and providing for them. It will be checked and permanently embarrassed by ignoring them. We are too apt to think that our American political system is distinguished by its central structure, by its President and Congress and courts, which the Constitution of the Union set up. As a matter of fact, it is distinguished by its local structure, by the extreme vitality of its parts. It would be an impossibility without its division of powers. From the first America has been a nation in the making. It has come to maturity by the stimulation of no central force or guidance, but by an abounding self-helping, self-sufficing energy in its parts, which severally brought themselves into existence and added themselves to the Union, pleasing first of all themselves in the framing of their laws and constitutions, not asking leave to exist and constitute themselves, but existing first and asking leave afterwards, self-originated, self-constituted, self-confident, self-sustaining, veritable communities, demanding only recognition. Communities develop, not by external but by internal forces. Else they do not five at all. Our commonwealths have not come into existence by invitation, like plants in a tended garden; they have sprung up of themselves, irrepressible, a sturdy, spontaneous product of the nature of men nur- tured in a free air. It is this spontaneity and variety, this independent and irrepressible life of its communities, that has given our THE STATES AND THE FEDERAL GOVERNMENT 183 system its extraordinary elasticity, which has preserved it from the paralysis which has sooner or later fallen upon every people who have looked to their central government to patronize and nurture them. It is this, also, which has made our political system so admirable an instrumentality of vital constitutional understandings. Throughout these lectures I have described constitutional government as that which is maintained upon the basis of an intimate understanding between those who conduct government and those who obey it. Nowhere has it been possible to maintain such understandings more successfully or with a nicer adjustment to every variety of circumstance than in the United States. The distribution of the chief powers of government among the States is the localization and specialization of constitutional understandings; and this elastic adaptation of constitutional processes to the various and changing conditions of a new country and a vast area has been the real cause of our political success. The division of powers between the States and the federal government effected by our federal Constitution was the normal and natural division for this purpose. Under it the States possess all the ordinary legal choices that shape a people's life. Theirs is the whole of the ordinary field of law; the regulation of domestic relations and of the rela- tions between employer and employe, the determination of property rights and of the validity and enforcement of contracts, the definition of crimes and their punishment, the definition of the many and subtle rights and obligations which lie outside the fields of property and contract, the establishment of the laws of incorporation and of the rules governing the conduct of every kind of business. The pre- sumption insisted upon by the courts in every argument 184 CONSTITUTIONAL GOVERNMENT IN UNITED STATES with regard to the powers of the federal government is that it has no power not explicitly granted it by the federal Constitution or reasonably to be inferred as the natural or necessary accompaniment of the powers there indisputably conveyed to it; but the presumption with regard to the powers of the States they have always held to be of exactly the opposite kind. It is that the States of course possess every power that government has ever anywhere exercised, except only those powers which their own constitutions or the Constitution of the United States explicitly or by plain inference withhold. They are the ordinary govern- ments of the country ; the federal government is its instru- ment only for particular purposes. Congress is, indeed, the immediate government of the people. It does not govern the States, but acts directly upon individuals, as directly as the governments of the States themselves. It does not stand at a distance and look on, — to be ready for an occasional interference, — but is the immediate and familiar instrument of the people in everything that it undertakes, as if there were no States. The States do not stand between it and the people. It is as intimate as they in its contact with the affairs of the coun- try's life. But the field of its action is distinct, restricted, definite. We are not concerned in our present discussion with its powers as representative of the people in regulating the foreign affairs of the country. The discussion of the relation of the States to the federal government does not touch that field. About it there has never been doubt or debate. Neither is the power of the federal government to tax, or to regulate the military establishments of the country, any longer in dispute, even though the federal THE STATES AND THE FEDERAL GOVERNMENT 185 government use its power to tax to accomplish many an indirect object of economic stimulation or control which touches the independent industrial choices of the States very nearly. The one source from which all debatable federal powers of domestic regulation now spring is the power to regulate commerce between the States. The chief object of the Union and of the revision of the Articles of Confederation which gave us our present federal Constitution was undoubtedly commercial regulation. It was not political but economic warfare between the States which threatened the existence of the new Union and made every prospect of national growth and independence doubtful, — the warfare of selfish commercial regulation. It was intended, accordingly, that the chief, one might almost say the only, domestic power of Congress in respect of the daily life of the people should be the power to regulate commerce. It seemed a power susceptible of very simple definition at the first. Only in our own day of extraordinary varia- tion from the older and simpler types of industry has it assumed aspects both new and without limit of variety. It is now no longer possible to frame any simple or compre- hensive definition of " commerce." Above all is it difficult to distinguish the " commerce" which is confined within the boundaries of a single State and subject to its domestic regulation from that which passes from State to State and lies within the jurisdiction of Congress. The actual inter- change of goods, which, strictly speaking, is commerce, within the narrow and specific meaning of the term, is now so married to their production under our great modern industrial combinations, organization and community of interest have so obscured the differences between the several 186 CONSTITUTIONAL GOVERNMENT IN UNITED STATES parts of business which once it was easy to discriminate, that the power to regulate commerce subtly extends its borders every year into new fields of enterprise and pries into every matter of economic effort. Added to this doubt and difficulty of analysis which makes it a constant matter of debate what the powers of Congress are is the growing dissatisfaction with the part the States are playing in the economic fife of the day. They either let the pressing problems of the time alone and attempt no regulation at all, however loudly opinion and circumstance itself may call for it, or they try every half-considered remedy, embark upon a thousand experiments, and bring utter confusion upon the industry of the country by con- tradicting and offsetting each other's measures. No two States act alike. Manufacturers and carriers who serve commerce in many States find it impossible to obey the laws of all, and the enforcement of the laws of the States in all their variety threatens the country with a new war of conflicting regulations as serious as that which made the Philadelphia convention of 1787 necessary and gave us a new federal Constitution. This conflict of laws in matters which vitally interest the whole country, and in which no State or region can wisely stand apart to serve any peculiar interest of its own, constitutes the greatest political danger of our day. It is more apt and powerful than any other cause to bring upon us radical and ill-considered changes. It confuses our thinking upon essential matters and makes us hasty reformers out of mere impatience. We are in danger of acting before we clearly know what we want or comprehend the consequences of what we do, — in danger of altering the character of the government in order to escape a temporary inconvenience. THE STATES AND THE FEDERAL GOVERNMENT 187 We are an industrial people. The development of the resources of the country, the command of the markets of the world, is for the time being more important in our eyes than any political theory or lawyer's discrimination of functions. We are intensely "practical," moreover, and insist that every obstacle, whether of law or fact, be swept out of the way. It is not the right temper for constitutional understandings. Too "practical" a purpose may give us a government such as we never should have chosen had we made the choice more thoughtfully and deliberately. We cannot afford to belie our reputation for political sagacity and self-possession by any such hasty processes as those into which such a temper of mere impatience seems likely to hurry us. The remedy for ill-considered legislation by the States, the remedy alike for neglect and mistake on the part of their several governments, lies, not outside the States, but within them. The mistakes which they themselves correct will sink deeper into the consciousness of their people than the mistakes which Congress may rush in to correct for them, thrusting upon them what they have not learned to desire. They will either themselves learn their mistakes, by such intimate and domestic processes as will penetrate very deep and abide with them in convincing force, or else they will prove that what might have been a mistake for other States or regions of the country was no mistake for them, and the country will have been saved its wholesome variety. In no case will their failure to correct their own measures prove that the federal government might have forced wisdom upon them. There is, however, something else that comes to the sur-' face, and that explains not a little of our present dissatis- 188 CONSTITUTIONAL GOVERNMENT IN UNITED STATES faction with state legislation upon matters of vital national importance. Their failure to correct their own processes may, in fact, prove that there is something radically wrong with the structure and operation of their governments, — that they have ceased to be sensitive and efficient instru- ments for the creation and realization of opinion, — the real function of constitutional governments. It is better to learn the true political lesson than merely to improve business. There is something involved which is deeper than the mere question of the distribution of legisla- tive powers within our federal system. We have come to the test of those intimate and detailed processes of self-govern- ment to which it was supposed that our principles and our experience had committed us. There are many evidences that we are losing confidence in our state legislatures, and yet it is evident that it is through them that we attempt all the more intimate measures of self-government. To lose faith in them is to lose faith in our very system of govern- ment, and that is a very serious matter. It is this loss of confidence in our local legislatures that has led our people to give so much heed to the radical suggestions of change made by those who advocate the use of the initiative and the referendum in our processes of legislation, the virtual abandonment of the representative principle, and the at- tempt to put into the hands of the voters themselves the power to initiate and negative laws, — in order to enable them to do for themselves what they have not been able to get satisfactorily done through the representatives they have hitherto chosen to act for them. Such doubts and such consequent proposals of reform should make us look deeper into this question than we have hitherto looked. It may turn out, upon examination, that THE STATES AND THE FEDERAL GOVERNMENT 189 what we are really dissatisfied with is not the present dis- tribution of powers between the state and federal authorities, but the character of our state governments. If they were really governments by the people, we should not be dis- satisfied with them. We are impatient of state legislatures because they seem to us less representative of the thoughtful opinion of the country than Congress is. We know that our legislatures do not think alike, but we are not sure that our people do not think alike. If there is a real variety of i opinion among our people in the several regions of the coun- try, we would be poor lovers of democratic self-government were we to wish to see those differences overridden by the majorities of a central legislature. It is to be hoped that we still sufficiently understand the real processes of political life to know that a growing country must grow, that opinion such as government can be based upon develops by experi- ence, not by authority, that a region forced is a region dis- satisfied, and that spontaneous is better, more genuine, more permanent, than forced agreement. The truth is that our state governments are, many of them, no longer truly representative governments. We are not, in fact, dissatisfied with local representative assemblies and the government which they impose ; we are dissatisfied, rather, with regulations imposed by commissions and assemblies which are no longer representative. It is a large subject, of many debatable parts, and I can only touch upon it here, but the fact is that we have imposed an impossible task upon our voters, and that because it is im- possible, they do not perform it. It is impossible for the voters of any busy community actually to pick out or in any real sense choose the very large number of persons we call upon them under our present state constitutions to 190 CONSTITUTIONAL GOVERNMENT IN UNITED STATES elect. They have neither the time nor the quick and easy means of cooperation which would enable them to make up the long lists of candidates for offices, local and national, upon which they are expected to act. They must of necessity leave the selection to a few persons who, from one motive or another, volunteer to make a business of it. These are the political bosses and managers whom the people obey and affect to despise. It is unjust to despise them. Under a system of innumerable nominations they are indispensable. A system of so-called popular elections like ours could not be operated successfully without them. But it is true that by their constant and professional atten- tion to the business of nomination a real popular choice of candidates is done away with entirely, and that our state officers and legislators are in effect appointed, not elected. The question at an election is only which set of appointees shall be put into office, those appointed by the managers and bosses of this party or of that. It is this, whether our people are distinctly conscious of it or not, which has so seriously impaired their confidence in the state legislatures and which has made them look about for new means by which to obtain a real choice in affairs. Members of Congress are themselves voted for on the lists which the local managers prepare, are themselves ap- pointed to their candidacy as the candidates for local functions are, but, because they are relatively few in number, national attention is more or less concentrated upon them. There is a more general interest in their selection, by which party managers are sure to be somewhat checked and guided. After their election, moreover, they become members of an assembly highly organized and disciplined, and are under a very strict party responsibility in which THE STATES AND THE FEDERAL GOVERNMENT 191 the personal force and character of the Speaker of the House play a greater part than their own. The man by whom they are led is scarcely less conspicuous as a national figure than the President himself, and ordinary members are but wheels in a great piece of machinery which is made sensitive to opinion in ways which local managers in no sort control. The opinion of the whole country beats upon them. The country feels, therefore, that, however selected, they are in some sense more representative, more to be depended on to register the thoughtful judgments of the country itself, than the members of state legislatures are. It is for this reason as much as for any other that the balance of powers between the States and the federal government now trembles at an unstable equilibrium, and we hesitate into which scale to throw the weight of our purpose and preference with regard to the legislation by which we shall attempt to thread the maze of our present economic needs and perplexities. It may turn out that what our state governments need is not to be sapped of their powers and subordinated to Congress, but to be reorganized along simpler lines which will make them real organs of popular opinion. A government must have organs; it cannot act inorganically, by masses. It must have a law-making body; it can no more make law through its voters than it can make law through its newspapers. It would be fatal to our political vitality really to strip the States of their powers and transfer them to the federal government. It cannot be too often repeated that it has been the privilege of separate development secured to the several regions of the country by the Constitution, and not the privilege of separate development only, but also that other more fundamental privilege that lies back of it, the 192 CONSTITUTIONAL GOVERNMENT IN UNITED STATES privilege of independent local opinion and individual conviction, which has given speed, facility, vigor, and cer- tainty to the processes of our economic and political growth. To buy temporary ease and convenience for the performance of a few great tasks of the hour at the expense of that would be to pay too great a price and to cheat all generations for the sake of one. Undoubtedly the powers of the federal government have grown, have even grown enormously, since the creation of the government ; and they have grown for the most part without amendment of the Constitution. But they have grown in almost every instance by a process which must be regarded as perfectly normal and legitimate. The Consti- tution cannot be regarded as a mere legal document, to be read as a will or a contract would be. It must, of the necessity of the case, be a vehicle of life. As the life of the nation changes so must the interpretation of the document which contains it change, by a nice adjustment, determined, not by the original intention of those who drew the paper, but by the exigencies and the new aspects of life itself. Changes of fact and alterations of opinion bring in their train actual extensions of community of interest, actual additions to the catalogue of things which must be included under the general terms of the law. The commerce of great systems of railway is, of course, not the commerce of wagon roads, the only land commerce known in the days when the Constitution was drafted. The common interests of a nation bound together in thought and interest and action by the telegraph and the telephone, as well as by the rushing mails which every express train carries, have a scope and variety, an infinite multiplication and intricate inter- lacing of which a simpler day can have had no conception. THE STATES AND THE FEDERAL GOVERNMENT 193 Every general term of the Constitution has come to have a meaning as varied as the actual variety of the things which the country now shares in common. The character of the process of constitutional adaptation depends first of all upon the wise or unwise choice of statesmen, but ultimately and chiefly upon the opinion and purpose of the courts. The chief instrumentality by which the law of the Constitution has been extended to cover the facts of national development has of course been judicial interpretation, — the decisions of the courts. The process of formal amendment of the Constitution was made so difficult by the provisions of the Constitution itself that it has seldom been feasible to use it; and the difficulty of formal amendment has undoubtedly made the courts more liberal, not to say more lax, in their interpretation than they would otherwise have been. The whole business of adapta- tion has been theirs, and they have undertaken it with open minds, sometimes even with boldness and a touch of audacity. But, though they have sometimes been lax, though they have sometimes yielded, it may be, to the pressure of popular agitation and of party interest, they have not often overstepped the bounds of legitimate ex- tension. By legitimate extension I mean extension which does not change the character of the federal power, but only its items, — which does not make new kinds but only new particulars of power. Facts change and are taken care of, but principles do not change. The members of courts are necessarily men of their own generation : we would not wish to have them men of another. Constitutional law, as well as statesmanship, must look forward, not backward, and, while we should wish the courts to be conservative, we should certainly be deeply 194 CONSTITUTIONAL GOVERNMENT IN UNITED STATES uneasy were they to hold affairs back from their natural alteration. Change as well as stability may be conserva- tive. Conservative change is conservative, not of preju- dices, but of principles, of established purposes and con- ceptions, the only things which in government or in any other field of action can abide. Conservative progress is a process, not of revolution, but of modification. In our own case and in the matter now under discussion it consists in a slowly progressive modification and transfer of func- tions as between the States and the federal government along the lines of actual development, along the lines of actual and substantial alterations of interest and of that national consciousness which is the breath of all true amend- ment, — and not along lines of party or individual purpose, nor by way of desperate search for remedies for existing evils. No doubt, courts must "make" law for their own day, must have the insight which adapts law to its uses, rather than its uses to it, must sometimes venture upon decisions which have a certain touch of statesmanlike initiative in them. We shall often find ourselves looking to them for strong and fearless opinions. But there are two kinds of " strong" opinions, as a distinguished English jurist long ago pointed out. There are those which are strong with the strength of insight and intelligence and those which are strong with the mere strength of will. The latter sort all judges who act with conscience, mindful of their oaths of office, should eschew as they would eschew the actual break- ing of the law. That the federal courts should have such a conscience is essential to the integrity of our whole national action. Actual alterations of interest in the make-up of our national life, actual, unmistakable changes in our national I THE STATES AND THE FEDERAL GOVERNMENT 195 consciousness, actual modifications in our national activities such as give a new aspect and significance to the well- known purposes of our fundamental law, should, of course, be taken up into decisions which add to the number of things of which the national government must take cog- nizance and attempt to control. That is a function of insight and intelligence. The courage it calls for on the part of the courts is the courage of conviction. But they are, on the other hand, called on to display the more noble courage which defends ancient convictions and established principle against the clamor, the class interests, and the changeful moods of parties. They should never permit themselves wilfully to seek to find in the phrases of the Constitution remedies for evils which the federal govern- ment was never intended to deal with. Moral and social questions originally left to the several States for settlement can be drawn into the field of federal authority only at the expense of the self-dependence and efficiency of the several communities of which our complex body politic is made up. Paternal morals, morals enforced by the judgment and choices of the central authority at Washington, do not and cannot create vital habits or methods of life unless sustained by local opinion and pur- pose, local prejudice and convenience, — unless supported by local convenience and interest; and only communities capable of taking care of themselves will, taken together, constitute a nation capable of vital action and contro.L You cannot atrophy the parts without atrophying the whole. DdSberateli33rng to the powers of the federal government by sheer judicial authority, because the Supreme Court can no longer be withstood or contradicted in the States, \ both saps the legal morality upon which a sound constitu- 196 CONSTITUTIONAL GOVERNMENT IN UNITED STATES tional system must rest, and deprives the federal structure as a whole of that vitality which has given the Supreme Court itself its increase of power. It is the alchemy of decay. It would certainly mean that we had acquired a new political temper, never hitherto characteristic of us, that we had utterly lost confidence in what we set out to do, were we now to substitute abolition for reform, — were we by degrees to do away with our boasted system of self- government out of mere impatience and disgust, like those who got rid of an instrument they no longer knew how to use. There are some hopeful signs that we may be about to return to the better way of a time when we knew how to restrict government and adapt it to our uses in accord- ance with principles we did not doubt, but adhered to with an ardent fervor which was the best evidence of youth and virility. We have long been painfully conscious that we have failed in the matter of city government. It is an age of cities, and if we cannot govern our cities, we cannot govern at all. For a little while we acted as if in despair. We began to strip our city governments of their powers and to transfer them to state commissions or back to the legis- latures of the States, very much as we are now stripping the States of their powers and putting them in the hands of federal commissions. The attempt was made to put the police departments of some of our cities, for example, in the hands of state officers, and to put the granting of city franchises back into the hands of the central legislature of the State, in the hope, apparently, that a uniform regula- tion of such things by the opinion of the whole State might take the place of corrupt control by city politicians. But THE STATES AND THE FEDERAL GOVERNMENT 197 it did not take us long, fortunately, to see that we were moving in the wrong direction. We have now turned to the better way of reconsidering the whole question of the organization of city governments, and are likely within a generation to purify them by simplifying them, to moralize them by placing their government in the hands of a few persons who can really be selected by popular preference instead of by the private processes of nomination by party managers, and who, because few and conspicuous, can really be watched and held to a responsibility which they will honor because they cannot escape. It is to be hoped that we shall presently have the same light dawn upon us with regard to our state governments, and, instead of upsetting an ancient system, hallowed by long use and deep devotion, revitalize it by reorganiza- tion. And that, not only because it is an old system long beloved, but also because we are certified by all political history of the fact that centralization is not vitalization. Moralization is by life, not by statute ; by the interior im- pulse and experience of communities, not by fostering legislation which is merely the abstraction of an experience which may belong to a nation as a whole or to many parts of it without having yet touched the thought of the rest anywhere to the quick. The object of our federal system is to bring the understandings of constitutional govern- ment home to the people of every part of the nation, to make them part of their consciousness as they go about their daily tasks. If we cannot successfully effect its ad- justments by the nice local adaptations of our older practice, we have failed as constitutional statesmen. VIII PARTY GOVERNMENT IN THE UNITED STATES In order to understand the organization and operation of parties in the United States, it is necessary to turn once more to the theory upon which our federal and, for that matter, our state governments, also, were constructed. They were, in their make-up, Whig inventions. At the time our national government was erected, the Whig party in England was engaged in a very notable struggle to curb and regulate the power of the Crown. The struggle had begun long before the revolution which cut our politics asunder from the politics of England, and that revolution itself was only an acute manifestation of the great forces which were at work among thoughtful Englishmen every- where. The revolution which separated America from England was part of a great Whig contest with the Crown for constitutional liberties. The leaders of that revolution held Whig doctrine; the greater Whig statesmen on the other side of the water recognized them as their allies and gave them their outspoken sympathy, perceiving that they were but fighting a battle which must sooner or later be fought in England, whether with arms or with votes and the more pacific strategy of politics. Every historian now sees that the radical changes made in the government of England during the nineteenth century were quickened and given assurance of success by the changes which had preceded them in America ; that the leaders of the American 198 PARTY GOVERNMENT IN THE UNITED STATES 199 Revolution had but taken precedence of the Whigs at home in bringing government into a new and responsible rela- tionship to the people who were its subjects. The theory of the Whigs in England did not go the length of seeking to destroy the power of the throne. It probably would not have gone that length in America if the throne had been on this side of the water, a domestic instead of a separate and distant power. The men in the old country to whom the American revolutionists showed the way sought only to offset the Crown with other influences, — influences of opinion acting through a reformed and purified representative chamber, whose consent not only should be necessary to the enactment of law, but the advice of whose leaders the king should find it necessary to heed; and the influences of judicial opinion acting through stable and independent courts. It was, as I have already pointed out, this theory of checks and balances, which I have called the Newtonian theory of government, that prevailed in the convention which framed the Constitution of the United States, — which prevailed over the very different theory of Hamilton, that government was not a thing which you could afford to tie up in a nice poise, as if it were to be held at an inactive equilibrium, but a thing which must every day act with straightforward and unquestionable power, with definite purpose and consistent force, choosing its policies and making good its authority, like a single organism, — the theory which would have seemed to Dar- win the theory of nature itself, the nature of men as well as the nature of animal organisms. Dominated by the immediate forces and aspirations of their own day, ruled in thought and action by the great contest in which they had found themselves engaged, to hold the royal power off from 200 CONSTITUTIONAL GOVERNMENT IN UNITED STATES arbitrary interference with their interests and their liberties, they allowed themselves to become more interested in pro- viding checks to government than in supplying it with energy and securing to it the necessary certainty and con- sistency of action. They set legislature off against execu- tive, and the courts against both, separated the three in sphere and power, and yet made the agreement of all three necessary to the operation of the government. The boast of the writers in the Federalist was of the perfection with which the convention at Philadelphia had interpreted Whig theory and embodied Whig dynamics in the Constitution. Mr. Hamilton's theory, that government was an affair of cooperative and harmonious forces, and that the danger of coordinate and coequal powers such as the framers of the Constitution had set up was that they might at their will pull in opposite directions and hold the government at a deadlock which no constitutional force could overcome and yet many situations might render inconvenient, if not hazard- ous, the temper and circumstances of the time gave public men little inclination to heed. Checks and balances were then the orthodox gospel of government. The most serious success of the convention in applying Whig theory to the government they were constructing was the complete separation of Congress and the executive which they effected. The English Whigs fought for long to oust the Crown from the power and intimate influence it had had in the House of Commons through its control of members' seats and its corrupting power of patronage: they succeeded only in placing the leaders of the Commons itself in executive authority in the stead of the Crown. The real executive authority of the English government is vested in the ministers of the day, who are in effect a PARTY GOVERNMENT IN THE UNITED STATES 201 committee of the House of Commons, and legislature and executive work together under a common party organiza- tion. The one is only an agency of the other : the ministers act for their party in the House. The separation of parlia- ment and the Crown which the reformers of the early part of the last century finally succeeded in effecting was not, in fact, a separation of the legislature from the executive, but only a separation of the real from the nominal executive. They entirely succeeded in making the king a modern " constitutional " monarch, — a monarch, that is, who, not- withstanding the dignity with which he is still surrounded and the very considerable influence which he can still ex- ercise by reason of his station, his personal force, should he happen to have any, and his intimate access to the counsels of the executive ministry, merely " reigns" and does not govern. His choice of advisers the House of Commons dictates. But our constitution-makers did their work dur- ing the earlier part of the struggle, when it seemed merely a contest to offset the authority of the king with effectual checks, and long before it had become evident that the outcome would be the substitution of an executive which represented the popular house for one which did not. Having a free hand and a clean sheet of paper upon which to write, there was nothing to hinder the complete realiza- tion of their ideal. They succeeded in actually separating legislature and executive. It may be that circumstances rendered their success more complete than they had intended. There is no reason to believe that they meant actually to exclude the President and his advisers from all intimate personal consultation with the houses in session. No doubt the President and the members of his cabinet could with perfect legal propriety 202 CONSTITUTIONAL GOVERNMENT IN UNITED STATES and without any breach of the spirit of the Constitution attend the sessions of either the House or the Senate and take part in their discussions, at any rate to the extent of answering questions and explaining any measures which the President might see fit to urge in the messages which the Constitution explicitly authorizes him to send to Con- gress. But after a few brief attempts to institute a practice of that kind, in the early days of General Washington's administration, actual usage established another habit in respect of the intercourse between the executive and Con- gress, and later days have shown the houses very jealous of any attempt to establish such an intimacy. Executive officers would be most unwelcome in the houses. Their doors are shut against them. Only the door of a committee room here and there opens to receive them, and they enter only when they are invited. In what I have said in a previous lecture of the remarkable and, in some respects, unexpected development of the President's influence and functions, I have already pointed out one of the most interesting and significant results of this absolute application of early Whig theory to the prac- tice of our government. Its result has been that, so far as the government itself is concerned, there is but one national voice in the country, and that is the voice of the President. His isolation has quite unexpectedly been his exaltation. The House represents localities, is made up of individuals whose interest is the interest of separate and scattered constituencies, who are drawn together, indeed, under a master, the Speaker, but who are controlled by no national force except that of their party, a force outside the govern- ment rather than within it. The Senate represents in its turn regions and interests distinguished by many conflicting PARTY GOVERNMENT IN THE UNITED STATES 203 and contrasted purposes, united only by exterior party organization and a party spirit not generated within the chamber itself. Only the President represents the country as a whole, and the President himself is cooperatively bound to the houses only by the machinery and discipline of party, not as a person and functionary, but as a member of an outside organization which exists quite independently of the executive and legislature. It is extraordinary the influence the early Whig theory of political dynamics has had amongst us and the far- reaching consequences which have ensued from it. It is far from being a democratic theory. It is, on the contrary, a theory whose avowed object, at any rate as applied in America, was to keep government at a sort of mechanical equipoise by means of a standing amicable contest among its several organic parts, each of which it seeks to make representative of a special interest in the nation. It is particularly intended to prevent the will of the people as a whole from having at any moment an unobstructed sweep and ascendency. And yet in every step we have taken with the intention of making our governments more demo- cratic, we have punctiliously kept to Whig mechanics. The process shows itself most distinctly and most sys- tematically in the structure of our state governments. We have supposed that the way to make executive offices democratic in character and motive was to separate them in authority, — to prescribe each officer's duties by statute, however petty and naturally subordinate in kind those duties might be, to put it to the voter to elect him separately, and to make him responsible, not to any superior officer set over him, but only to the courts, — thus making him a law unto himself so far as any other official is concerned. 204 CONSTITUTIONAL GOVERNMENT IN UNITED STATES So far have we carried the theory of checks and balances, the theory of the independence of the several organs of government. The operation of the system is worth looking into more closely for a moment. Not very long ago a mob of un- masked men rescued a prisoner with whom they sym- pathized from the sheriff of a county in one of our States. The circumstances of the rescue made it very evident that the sheriff had made no serious attempt to prevent the rescue. He had had reason to expect it, and had provided no sufficient armed guard for his prisoner. The case was so flagrant that the governor of the State wrote the sheriff a sharp letter of reprimand, censuring him very justly for his neglect of duty. The sheriff replied in an open letter in which he curtly bade the governor mind his own business. The sheriff was, he said, a servant of his county, responsible to its voters and not to the governor. And his impertinence was the law itself. The governor had no more authority over him than the youngest citizen. He was responsible only to the people of his own county, from whose ranks the mob had come which had taken his prisoner away from him. He could have been brought to book only by indict- ment and trial, — indictment at the instance of a district attorney elected on the same " ticket" with himself, by a grand jury of men who had voted for him, and trial by a petit jury of his neighbors, whose sympathy with the rescue might be presumed from the circumstances. This is Whig dynamics in its reductio ad particulam. It is a species of government in solution. It can be solidified and drawn to system only by the external authority of party, an organization outside the government and independent of it. Not being drawn PARTY GOVERNMENT IN THE UNITED STATES 205 together by any system provided in our constitutions, being laid apart, on the contrary, in a sort of jealous dispersion and analysis by Whig theory enacted into law, it has been necessary to keep the several parts of the government in some kind of workable combination by outside pressure, by the closely knit imperative discipline of party, a body that has no constitutional cleavages and is free to tie itself into legislative and executive functions alike by its systematic control of the personnel of all branches of the government. Fortunately, the federal executive is not dispersed into its many elements as the executive of each of our States is. The dispersion of our state executives runs from top to bottom. The governor has no cabinet. The executive officers of state associated with him in administration are elected as he is. Each refers his authority to particular statutes or particular clauses of the state constitution. Each is responsible politically to his constituents, the voters of the State, and, legally, to the courts and their juries. But in the federal government the executive is at least in itself a unit. Every one subordinate to the President is ap- pointed by him and responsible to him, both legally and politically. He can control the personnel and the action of the whole of the great " department" of government of which he is the head. The Whig doctrine is insisted on only with regard to dealings of the legislature with the executive, and of the legislature or the executive with the courts. The three great functions of government are not to be merged or even drawn into organic cooperation, but are to be balanced against one another in a safe counter- poise. They are interdependent but organically disasso- ciated; must cooperate, and yet are subject to no common authority. 206 CONSTITUTIONAL GOVERNMENT IN UNITED STATES The way in which the several branches of the federal government have been separately organized and given efficiency in the discharge of their own functions has only emphasized their separation and jealous independence. The effective organization of the House under its committees and its powerful Speaker, the organization of the Senate under its steering committees, the consolidation of the executive under the authority of the President, only render it the more feasible and the more likely that these several parts of the government will act with an all too effective consciousness of their distinct individuality and dignity, their distinct claim to be separately considered and severally obeyed in the shaping and conduct of affairs. They are not to be driven, and there is no machinery of which the Constitution knows anything by which they can be led and combined. It is for that reason that we have had such an extraordi- nary development of party authority in the United States and have developed outside the government itself so elab- orate and effective an organization of parties. They are absolutely necessary to hold the things thus disconnected and dispersed together and give some coherence to the action of political forces. There are, as I have already explained in another connection, so many officers to be elected that even the preparation of lists of candidates is too complicated and laborious a business to be undertaken by men busy about other things. Some one must make a profession of attending to it, must give it system and method. A few candidates for a few conspicuous offices which inter- ested everybody, the voters themselves might select in the intervals^ private business ; but a multitude of candidates for offices great and small they cannot choose; and after PARTY GOVERNMENT IN THE UNITED STATES 207 they are chosen and elected to office they are still a multi- tude, and there must be somebody to look after them in the discharge of their functions, somebody to observe them closely in action, in order that they may be assessed against the time when they are to be judged. Each has his own little legal domain; there is no interdependence amongst them, no interior organization to hold them to- gether. There must, therefore, be an exterior organization, voluntarily formed and independent of the law, whose object it shall be to bind them together in some sort of harmony and cooperation. That exterior organization is the political party. The hierarchy of its officers must supply the place of a hierarchy of legally constituted officials. Nowhere else is the mere maintenance of the machinery of government so complex and difficult a matter as in the United States. It is not as if there were but a single government to be maintained and officered. There are the innumerable offices of States, of counties, of townships, of cities, to be filled; and it is only by elections, by the filling of offices, that parties test and maintain their hold upon public opinion. Their control of the opinion of the nation inevitably depends upon their hold on the many localities of which it is made up. If they lose their grip upon the petty choices which affect the daily life of counties and cities and States, they will inevitably lose their grip upon the greater matters, also, of which the action of the nation is made up. Parties get their coherence and pres- tige, their rootage and solidity, their mastery over men and events, from their command of detail, their control of the little tides that eventually flood the great channels of national action. No one realizes more completely the inter- 208 CONSTITUTIONAL GOVERNMENT IN UNITED STATES dependence of municipal, state, and federal elections than do the party managers. Their parties cannot be one thing for the one set of elections and another for the other ; and the complexity of the politician's task consists in the fact that, though from his point of view interdependent and intimately connected, the constantly recurring elections of a system under which everybody is elected are variously scattered in time and place and object. We have made many efforts to separate local and na- tional elections in time in order to separate them in spirit. Many local questions upon which the voters of particular cities or counties or States are called upon to vote have no connection whatever either in principle or in object with the national questions upon which the choice of congress- men and of presidential electors should turn. It is ideally desirable that the voter should be left free to choose the candidates of one party in local elections and the candidates of the opposite party in national elections. It is un- doubtedly desirable that he should go further and separate matters of local administration from his choice of party altogether, choosing his local representatives upon their merits as men without regard to their party affiliations. We have hopefully made a score of efforts to obtain " non- partisan" local political action. But such efforts always in the long run fail. Local parties cannot be one thing for one purpose and another for another without losing form and discipline altogether and becoming hopelessly fluid. Neither can parties form and re-form, now for this purpose and again for that, or be for one election one thing and for another another. Unless they can have local training and constant rehearsal of their parts, they will fail of coherent organization when they address themselves to the business PARTY GOVERNMENT IN THE UNITED STATES 209 of national elections. For national purposes they must regard themselves as parts of greater wholes, and it is impossible under such a system as our own that they should maintain their zest and interest in their business if their only objects are distant and general objects, without local rootage or illustration, centering in Congress and utterly disconnected with anything that they themselves handle. Local offices are indispensable to party discipline as rewards of local fidelity, as the visible and tangible objects of those who devote their time and energy to party organization and undertake to see to it that the full strength of the party vote is put forth when the several local sections of the party are called upon to unite for national purposes. If national politics are not to become a mere game of haphazard amidst which parties can make no calculations whatever, systematic and disciplined connections between local and national affairs are imperative, and some instrument must be found to effect them. Whatever their faults and abuses, party machines are absolutely necessary under our existing electoral arrangements, and are necessary chiefly for keep- ing the several segments of parties together. No party manager could piece local majorities together and make up a national majority, if local majorities were mustered upon non-partisan grounds. No party manager can keep his lieutenants to their business who has not control of local nominations. His lieutenants do not expect national rewards : their vital rootage is the rootage of local oppor- tunity. Just because, therefore, there is nowhere else in the world so complex and various an electoral machinery as in the United States, nowhere else in the world is party machinery so elaborate or so necessary. It is important to keep this in 210 CONSTITUTIONAL GOVERNMENT IN UNITED STATES mind. Otherwise, when we analyze party action, we shall fall into the too common error of thinking that we are analyzing disease. As a matter of fact, the whole thing is just as nor- mal and natural as any other political development. The part that party has played in this country has been both necessary and beneficial, and if bosses and secret managers are often undesirable persons, playing their parts for their own benefit or glorification rather than for the public good, they are at least the natural fruits of the tree. It has borne fruit good and bad, sweet and bitter, wholesome and corrupt, but it is native to our air and practice and can be uprooted only by an entire change of system. All the peculiarities of party government in the United States are due to the too literal application of Whig doctrine, to the infinite multiplication of elective offices. There are two things to be done for which we have supplied no ade- quate legal or constitutional machinery: there are thou- sands of officials to be chosen and there are many disconnected parts of government to be brought into cooperation. "It may be laid down as a political maxim that whatever assigns to the people a power which they are naturally incapable of wielding takes it away from them." They have, under our Constitution and statutes, been assigned the power of filling innumerable elective offices; they are incapable of wielding that power because they have neither the time nor the necessary means of cooperative action; the power has therefore been taken away from them, not by law but by circumstances, and handed over to those who have the time and the inclination to supply the neces- sary organization; and the system of election has been transformed into a system of practically irresponsible appointment to office by private party managers, — irre- :es PARTY GOVERNMENT IN THE UNITED STATES 211 sponsible because our law has not yet been able to devise any means of making it responsible. It may also be laid down as a political maxim that when the several chief organs of government are separated by organic law and offset against each other in jealous seclusion, no common legal authority set over them, no necessary community of interest subsisting amongst them, no common origin or purpose dominating them, they must of necessity, if united at all, be united by pressure from without ; and they must be united if government is to proceed. They cannot remain checked and balanced against one another; they must act, and act together. They must, therefore, of their own will or of mere necessity obey / an outside master. Both sets of dispersions, the dispersion of offices and the dispersion of functions and authorities, have cooperated to produce our parties, and their organization. Through their caucuses, their county conventions, their state con- ventions, their national conventions, instead of through legislatures and cabinets, they supply the indispensable means of agreement and cooperation, and direct the govern- ment of the country both in its policy and in its personnel. Their local managers make up the long and variegated lists of candidates made necessary under our would-be democratic practice; their caucuses and local conventions ratify the choice; their state and national conventions add declarations of principle and determine party policy. Only in the United States is party thus a distinct authority outside the formal government, expressing its purposes through its own separate and peculiar organs and permitted to dictate what Congress shall undertake and the national administration address itself to. Under every other system of government which is representative in character and 212 CONSTITUTIONAL GOVERNMENT IN UNITED STATES which attempts to adjust the action of government to the wishes and interests of the people, the organization of parties is, in a sense, indistinguishable from the organs of the government itself. Party finds its organic lodgment in the national legislature and executive themselves. The several active parts of the government are closely united in organization for a common purpose, because they are under a common direction and themselves constitute the machinery of party control. Parties do not have to supply themselves with separate organs of their own outside the government and intended to dictate its policy, because such separate organs are unnecessary. The responsible organs of government are also the avowed organs of party. The action of opinion upon them is open and direct, not cir- cuitous and secret. It is interesting to observe that as a consequence the dis- tinction we make between " politicians " and " statesmen " is peculiarly our own. In other countries where these words or their equivalents are used, the statesman differs from the politician only in capacity and in degree, and is dis- tinguished as a public leader only in being a greater figure on the same stage, whereas with us politicians and states- men differ in kind. A politician is a man who manages the organs of the party outside the open field of govern- ment, outside executive offices and legislative chambers, and who conveys the behests of party to those who hold the offices and make laws ; while the statesman is the leader of public opinion, the immediate director (under the politi- cians) of executive or legislative policy, the diplomat, the recognized public servant. The politician, indeed, often holds public office and attempts the role of statesman as well, but, though the roles may be combined, they are none the PARTY GOVERNMENT IN THE UNITED STATES 213 less sharply distinguishable. Party majorities which are ac- tually in control of the whole legislative machinery, as party majorities in England are, determine party programs by the use of the government itself, — their leaders are at once " politicians" and " statesmen"; and, the function being public, the politician is more likely to be swallowed up in the statesman. But with us, who affect never to allow party majorities to get in complete control of governmental machinery if we can prevent it by constitutional obstacles, party programs are made up outside legislative chambers, by conventions constituted under the direction of inde- pendent politicians, — politicians, I mean, who are, at any rate in respect of that function, independent of the responsibilities of office and of public action; and these independent conventions, not charged with the responsi- bility of carrying out their programs, actually outline the policy of administrations and dictate the action of Congress, the irresponsible dictating to the responsible, and so, it may be, destroying the very responsibility itself. "The peculiarities of American party government are all due to this separation of party management from direct and immediate responsibility for the administration of the government." The satisfactions of power must be very great to attract so many men of unusual gifts to attempt the hazardous and little honored business of party management. We have made it necessary that we should have "bosses" and that they and their lieutenants should assign offices by appointment, but it is a very difficult and precarious business which they undertake. It is difficult and hazard- ous not only because it is irregular and only partially pro- tected by law, but also because the people look askance 214 CONSTITUTIONAL GOVERNMENT IN UNITED STATES at it and often with a sudden disgust turn upon it and break it up, for a little while rendering it impossible. The reason for these occasional outbursts of discontent and resentment is evident and substantial enough. They come when the people happen to realize that under existing party machinery they have virtually no control at all over nomi- nations for office, and that, having no real control over the choice of candidates, they are cut off from exercising real representative self-government, — that they have been solemnly taking part in a farce. But their revolt is only fitful and upon occasion. Reform associations arise, com- mittees of fifty or seventy or a hundred are formed to set matters right and put government back into the hands of the people, but it is always found that no one can successfully supplant the carefully devised machinery of professional politicians without taking the same pains that they take, without devoting to the business the time and the enthusiasm for details which they devote to it, or supplant the politicians themselves without forming rival organizations as com- petent as theirs to keep an eye on the whole complicated process of elections and platforms, without, in short, them- selves becoming in their turn professional politicians. It is an odd operation of the Whig system that it should make such party organizations at once necessary and disreputable, and I should say that in view of the legal arrangements which we have deliberately made, the disrepute in which profes- sional politicians are held, is in spirit highly unconstitutional. There can be and there need be no national boss like the local bosses of States and cities, because federal patronage is not distributed by election. Local bosses commonly control the selection of members of Congress because the congressional districts are local, and members of Congress are PARTY GOVERNMENT IN THE UNITED STATES 215 voted for by local ticket; but they cannot control federal appointments without the consent of the President. By the same token, the President can, if he chooses, become national boss by the use of his enormous patronage, doling out his local gifts of place to local party managers in return for support and cooperation in the guidance and control of his party. His patronage touches every community in the United States. He can often by its use disconcert and even master the local managers of his own party by combining the arts of the politician with the duties of the statesman, and he can go far towards establishing a complete personal domination. He can even break party lines asunder and draw together combinations of his own devising. It is against this that our national civil service laws have been wisely directed. But what really restrains him is his conspicuous position and the fact that opinion will hold him responsible for his use of his patronage. Local bosses are often very obscure persons. To the vast majority of the voters they are entirely unknown, and it is their desire to be as little in evidence as possible. They are often' not themselves office-holders at all, and there is no way in which by mere elective processes they can be held responsible. But the President's appointments are public, and he alone by con- stitutional assignment is responsible for them. Such open responsibility sobers and restrains even where principle is lacking. Many a man who does not scruple to make in private political arrangements which will serve his own purposes will be very careful to be judicious in every act for which he is known to be singly responsible. Respon- sible appointments are always better than irresponsible. Responsible appointments are appointments made under 216 CONSTITUTIONAL GOVERNMENT IN UNITED STATES scrutiny; irresponsible appointments are those made by private persons in private. The machinery of party rule is nominally representative. The several assemblies and conventions through which the parties operate are supposed to be made up of delegates chosen by the voters of the party, to speak for them with a certain knowledge of what they want and expect. But here again the action of the voters themselves is hardly more than nominal. The lists of delegates are made up by the party managers as freely in all ordinary circumstances as are the lists of the candidates in whose selection they concur. To add the duty of really selecting delegates to the duty of selecting men for office already laid upon our voters by law would be only to add to the impossibility of their task, and to their confusion if they attempted to perform it. When difficulties arise in the process, rival bodies of delegates can always be chosen, and then the managing committees who are in charge of the party's affairs — the county committee, the state committee, or the national committee — can dictate which of the con- testing delegations shall be admitted, which shall have their credentials accepted. It is to this necessity we have been brought by farming the functions of government out to outside parties. We have made the task of the voter hopeless and therefore impossible. And yet at the best the control which party exercises over government is uncertain. There can be, whether for the voter or for the managing politician himself, little more than a presumption that what party managers propose and promise will be done, for the separation of authority be- tween the several organs of government itself still stands in the way. Government is still in solution, and nothing PARTY GOVERNMENT IN THE UNITED STATES 217 may come to crystallization. But we may congratulate ourselves that we have succeeded as well as we have in giving our politics unity and coherence. We should have drifted sadly, should much oftener have been made to guess what the course of our politics should be, had we not constructed this singular and, on the whole, efficient machinery by which we have in all ordinary seasons contrived to hold the 'per- sonnel and the policy of our government together. Moreover, there is another use which parties thus thor- oughly organized and universally active have served among us which has been of supreme importance. It is clear that without them it would hardly have been possible for the voters of the country to be united in truly national judg- ments upon national questions. For a hundred years or more we have been a nation in the making, and it would be hard to exaggerate the importance of the nationalizing influence of our great political parties. Without them, in a country so various as ours, with communities at every stage of development, separated into parts by the sharpest economic contrasts and social differences, with local prob- lems and conditions of their own which seemed to give them a separate interest very difficult to combine with any other, full of keen rivalries and here and there cut athwart by deep-rooted prejudices, national opinions, national judg- ments, could never have been formulated or enforced with- out the instrumentality of well-disciplined parties which extended their organization in a close network over the whole country, and which had always their desire for office and for the power which office brings to urge as their conclu- sive reason, — a reason which every voter could understand, — why there should be agreement in opinion and in program as between section and section, whatever the temptation 218 CONSTITUTIONAL GOVERNMENT IN UNITED STATES to divide and act separately, as their conclusive argument against local interest and preference. If local and national politics had ever been for long successfully divorced, this would have been impossible. Students of our politics have not always sufficiently recognized the extraordinary part political parties have played in making a national life which might otherwise have been loose and diverse almost to the point of being inorganic a thing of definite coherence and common purpose. There is a sense in which our parties may be said to have been our real body politic. Not the authority of Congress, not the leadership of the President, but the discipline and zest of parties, has held us together, has made it possible for us to form and to carry out national programs. It is not merely that the utmost economic diversity has marked the development of the different parts of the country, and that their consciousness of different and even rival and conflicting interests has rendered the sympathy between them imperfect, the likelihood of antagonism very great indeed. There have been social differences, also, quite as marked. These social differences were no doubt themselves founded in economic diversity, but they cut much deeper than mere economic diversity of itself could have cut and made real sympathy unnatural, spontaneous cooperation between the portions of the country which they had offset against one another extremely difficult, and, in the absence of party discipline, extremely unlikely. The social contrast between the North and South before the Civil War will occur to every one, — a contrast created, of course, by the existence of the slave system in the South and deepened and elaborated by many another influence, until the political partnership of the two regions became at last actually impossible. PARTY GOVERNMENT IN THE UNITED STATES 219 And yet there was no exclusive southern party, no exclusive northern party, until the war itself came. Until then each national party had a strong and loyal following both North and South, and seemed to be conscious of no sectional lines which need prevent cordial cooperation. The very interest which a section with peculiar needs and objects of its own had in maintaining its proportional influence in the direc- tion of the policy of the general government, in order both to protect itself and to further such measures conceived in its own interest as it could induce the partners to concede, made it eager to escape actual political isolation and keep its representation in national party counsels. And, though the contrast between the South with slavery and the other portions of the country without it was the sharpest and most dangerous contrast that our history has disclosed, many another crisis in our affairs has been accentuated by differences of interest and of point of view almost as great. The feeling of the communities beyond the Alleghanies towards the communities by the Atlantic seaboard throughout all the time when foreign powers owned the southern outlet of the great valley of the Mississippi; the feeling of the communities of the plains towards the communities to the eastward which seemed to grudge them their development and to prefer the interest of the manufacturer to the interest of the farmer; the feeling of the mining camps towards the regions of commerce and of all the old order which got their wealth but did not understand or regard their wishes in matters of local regulation and self-government ; the circumstances in which Territories were set up and the heats in which States were forged, — these have been the difficulties and hazards of our national history, and it has been nothing less than a 220 CONSTITUTIONAL GOVERNMENT IN UNITED STATES marvel how the network of parties has taken up and broken the restless strain of contest and jealousy, like an invisible network of kindly oil upon the disordered waters of the sea. It is in this vital sense that our national parties have been our veritable body politic. The very compulsion of selfish- ness has made them serviceable; the very play of self- interest has made them effective. In organization was their strength. It brought them the rewards of local office, the command of patronage of many kinds, the detailed control of opinion, the subtle mastery of every force of growth and expansion. They strove for nothing so constantly or so watchfully as for the compact, cooperative organization and action which served to hold the nation in their hands. But we have come within sight of the end of the merely nationalizing process. Contrasts between region and region become every year less obvious, conflicts of interest less acute and disturbing. Party organization is no longer needed for the mere rudimentary task of holding the ma- chinery together or giving it the sustenance of some com- mon object, some single cooperative motive. The time is at hand when we can with safety examine the network of party in its detail and change its structure without im- perilling its strength. This thing that has served us so well might now master us if we left it irresponsible. We must see to it that it is made responsible. I have already explained in what sense and for what very sufficient reasons it is irresponsible. Party organiza- tions appoint our elective officers, and we do not elect them. The chief obstacle to their reform, the chief thing that has stood in the way of making them amenable to opinion, controllable by independent opposition, is the reverence with which we have come to regard them. By binding us PARTY GOVERNMENT IN THE UNITED STATES 221 together at moments of crisis they have won our affectionate fealty. Because the Republican party " saved the Union," a whole generation went by, in many parts of the country, before men who had acted with it in a time of crisis could believe it possible for any " gentleman "or patriot to break away from it or oppose it, whatever its policy and however remote from anything it had originally professed or under- taken. Because the Democratic party had stood for state rights and a power freely dispersed among the people, because it had tried to avoid war and preserve the old harmony of the sections, men of the same fervor of sym- pathy in other parts of the country deemed it equally incredible that any man of breeding or of principle could turn his back upon it or act with any other political organi- zation. The feeling lasted until lines of party division became equally fixed and artificial. But with changing generations feelings change. We are coming now to look upon our parties once more as instruments for progressive action, as means for handling the affairs of a new age. Sentimental reminiscence is less dominant over us. We are ready to study new uses for our parties and to adapt them to new standards and principles. The principle of change, if change there is to be, should spring out of this question: Have we had enough of the literal translation of Whig theory into practice, into con- stitutions? Are we ready to make our legislatures and our executives our real bodies politic, instead of our parties ? If we are, we must think less of checks and balances and more of coordinated power, less of separation of functions and more of the synthesis of action. If we are, we must decrease the number and complexity of the things the voter is called upon to do ; concentrate his attention upon a few 222 CONSTITUTIONAL GOVERNMENT IN UNITED STATES men whom he can make responsible; a few objects upon which he can easily centre his purpose; make parties his instruments and not his masters by an utter simplification of the things he is expected to look to. Every test of principle or of program returns to our original conception of constitutional government. Every study of party must turn about our purpose to have real representative institutions. Constitutional government can be vital only when it is refreshed at every turn of affairs by a new and cordial and easily attained understand- ing between those who govern and those who are governed. It can be maintained only by genuine common counsel; and genuine common counsel can be obtained only by genuine representative institutions. A people who know their minds and can get real representatives to express them are a self-governed people, the practised masters of constitutional government. ■■ INDEX Action, sobering to opinion, 39; al- lowed no vent becomes dangerous, 40 Acts of a session, The, not the product of common counsel, 103 Adaptation, Process of constitutional, 193 Adjustment, The principle of the freest right and opportunity of, 5-6 ; between the government and the individual, 18 ; between the government and the popular thought and need, 23-24 ; of the Constitution to the exigencies and new aspects of life, 192 Advisers, Independent, in position to be masters, 139 Agitation, fixed upon conviction, can- not be allayed, 37 ; free under popular government, 38 ; danger- ous where there are no suitable institutions, 39 America, abounds in the vitality of variety, 51 ; economic and social contrasts in, do not follow state lines, 180; a nation in the making, 182 American Congress and English Par- liament originally of the same model, 82, 86 American form of government, 40- 44 American political system distin- guished by the extreme vitality of its parts, 182 American president and English king originally of the same model, 82 American Revolution, The, a part of the Whig contest for constitu- tional liberties, 198-99 Appointments to office, a severe tax on the President, 79; federal, not controlled by bosses, 215 ; respon- sible and irresponsible, 215-16 Assemblies, representative, Develop- ment of functions of, 11-15 ; essen- tial to a constitutional system, 24 ; need of, for discussion, 102, 103; need of genuine, 222 Bagehot's, Mr., compliment to Ameri- cans, 59 Barons, The, and King John, at Runnymede, 2-3; contended for the privileges of a nation, 6, 7 ; 53 Bill of Rights, The, a part of the written constitution of England, 22 ; may be ignored by act of Par- liament, 144; defines rights as against the crown, not against Par- liament, 145 Body politic, Parties our real, 218- 20 Boss, No national, 214 Bosses and managers, Political, nomi- nate candidates, 190 ; required in party organization, 206-10 ; natu- ral fruits of the tree, 210 ; discon- tent with, 213-14; control selec- tion of members of Congress, 214- 15 British North America Act, The, 146-47 Bryce, James, on our constitutions, 147 Burke, on what a free government is, 4 ; on American legislatures, 13 Cabinet, The, an executive, not a political body, 76; two views of the character of the, 77 Cabinet meetings deal only with larger matters of policy, not with details, 67 Cabinet officers in line of succession 223 224 INDEX for presidency, 64; more active than President in executing laws, 66 ; are shut out from Congress, 73 ; various sources whence drawn, 75-76 Canada, The constitution of, an Act of Parliament, 146-47 Candidates named by political bosses and managers, 190 ; too numerous for voters to select, 206 Caucus, of each party in the Senate, has its Committee on Committees, 133 ; chairman of the majority, the leader of the Senate, 133-34; nearly the counterpart of the Speaker, 134 Centralization not vitalization, 197 Chase, Salmon P., Views of, on greenbacks, as Secretary of Treas- ury and as Chief Justice, 164 Checks and balances, the orthodox gospel of government, 200 ; car- ried to extremes, 204; we must make less of, 221 Child labor, Proposed federal legisla- tion on, 179 China and Russia, military nations, subjugated from without, 28-29 ; people in, not conscious of a com- mon interest, 28; stagnation of peoples, 29 Citizenship, Responsibility of, 23 City government, Failure in, 196 ; reorganization in, 197 Civil War, The, called the nation to consciousness and to action, 48 ; social contrast between North and South before, 218-19 Cleveland, Mr., and his great role in affairs, 58 ; his second cabinet, 76 Colonial charters superseded by state constitutions, 147 Colonies, The, grown into states, 44 ; community of interest developed in, in struggle for independence, 44 ; social and economic differences between, 45-46; operated under charters from the crown, 146 ; task of combining, 161 Colonists, Capacity of the, for self- government, 27 ; community of interest among the, 44 Commerce, state and interstate, 170- 71, 178-79 ; difficult to distinguish, 185-86 ; of great railways not the commerce of wagon roads, 192 Committee on Committees of each party in Senate, 133 ; influence of caucus chairman through, 134 Committee on Rules of the House of Representatives, 93-95 ; controlled by the Speaker, 95 Committees, Standing, of the House of Representatives, 89, 96; each, a miniature House, 97 ; minority representation on the, 97-98 Commons, House of, see House of Commons Communities, develop by internal forces, 182 ; irrepressible life of our, 182-83 Community, "What constitutes a, 26- 27, 46 ; the character of a, cannot be presented, 53 Conference committees of House and Senate, 106-7 Congress, Some Presidents refused to lead, 70; overborne only because President has nation behind him, 70-71 ; illegitimate means by which President may influence, 71 ; political powers of the President in his relations with, 72-73 ; meant to be a reformed parliament, 82; a part of the Government, 84, 85 ; making laws exclusive sphere of, 85 ; alone among legislatures of the world in rejecting leadership of Government in legislation, 85 ; and Parliament had the same origin, 82, 86 ; developed under a theory of checks and balances, takes part in governing, 86-87 ; organization of, unlike that of Parliament, 87; can exercise no powers except those conferred by the Constitution, 148- 49; powers not granted to, re- main with the states, 149; no friction with the courts, 162 ; mem- bers of, and the decisions of federal judges, 163-64; general powers granted to, cover the life of the nation, 174-75 ; question of power of, to determine internal social and ■1 INDEX 225 economic structure of society in new States, 176-77; choices of growth forced upon, 177; limita- tions likely to be observed by, 179 ; is the immediate government of the people, 184; chief domestic power of, to regulate commerce, 185 ; increasing complications of this power, 185-86 ; complete sepa- ration of, from the executive, 200-1 ; subject to party dictation, 211 Congressional Record, The, disap- pointing, because lacking reality, 105 Constitution of the United States, The first eight amendments to the, a charter of liberties, 8-9 ; in- tended to be a copy of the govern- ment of England, 42 ; foresight and sagacity of framers of, 45; Mr. Bagehot on the, 59; as practical a document as Magna Carta, 60; not a mere lawyer's document but a vehicle of life, 67-70 ; authorizes the President to recommend meas- ures to Congress, 72 ; bids him speak, 73 ; does not seem to make the President a prime minister, 77 ; statutes must conform to the, 147 ; tests of, may be applied in state courts, 155-56; the whole expan- sion of our national life has been read into, 157-58; courts deter- mine adequacy of, 167; read to meet needs of nation's life, 169-70 ; what reading shall it now have? 178; commercial regulation the chief object of the Union under, 185 ; a vehicle of life, 192 ; every general term of, has a varied mean- ing, 193; legitimate extension of, by judicial interpretation, 193 Constitution, The makers of our fed- eral,followed the scheme expounded in Montesquieu, 56; Whig theo- rists but practical statesmen, 57; made the President only the legal executive with power of veto, 59- 60; enacted efficient laws, 70; conceived our houses of Congress under a theory of checks and bal- ances, 86; foresight of, 173; left greater part of legal regulation to the States, 179 ; separated legis- lature from the executive, and courts from both, 199-201 Constitutional Convention of 1787, The, did not see the influences mak- ing for change, 43 ; the federal state devised by, 46 ; Newtonian theory of government prevailed in, 199 ; embodied Whig dynamics in the Constitution, 199-200; its most serious success, 200-1 Constitutional government, see Gov- ernment, Constitutional Constitutional law, Our, broad and elastic, 57 ; must look forward, not backward, 193 Constitutional questions may origi- nate in any court of any grade, 151 Contrasts, Social, between sections of country, 218-20 Conviction, Power of the impulses of, 36-38 Coordinated power, We must think more of, 221 Counsel, and criticism never more needed, 102; common, is not jumbled, 103; compounded of many views in actual contact, 104 ; in committee rooms but not in the House, 103, 105 ; open, the essence of power, 110; common, main- tained only by genuine representa- tive institutions, 222 Courts, The, 142-72; the ultimate safeguard of individual privilege and of governmental prerogative, 142 ; the citizen's safeguard against the abuse of power by the govern- ment, 143 ; men are individuals in respect of their rights only in, 143 ; have power to restrain the gov- ernment, 144; inference of, that laws shall be tested by the Consti- tution, 146; renders our system unique, 147; will not hear ab- stract questions, 147-48 ; instru- ments for the protection of the individual, 149; balance-wheel of the whole system, 142, 149 ; juris- diction of, 150-51; are the, as 226 INDEX available for the poor as for the rich? 152-54; average integrity of American, high, 153 ; processes in, complicated and expensive, 153-54; all, branches of the peo- ple's forum, 154; jurisdiction of federal and state, 155-57; bal- ance of our system lies in the fed- eral courts, 157; the statesman- ship of control lies in the, 157 ; German critics on our, 161 ; mem- bers of Congress and decisions of the, 163-64; no wiser than their judges, 165; Congress and the executive might manipulate to their own ends, 166; index of the nation's character, 167; states- manship of adaptation expected of, 168 ; influence of Marshall in formative period of, 168 ; have met the needs of the nation's life, 169- 70; relation of, to opinion, 171- 72; liberal interpretation of Con- stitution by, 193 ; the conscience and courage of, essential to con- servative progress, 194-95 Courts, English, Broad and liberal rulings in the, 145 Courts, the gauge of excellence of a constitutional government, 17— 18 Czar, A written constitution would not change the power of the, 2 Darwin followed in all discussion of structure or development of things, 55 Darwin vs. Newton in development of political theories, 55-56 Debate, not a creative process, 88; the means of common counsel, 102-3; results of, 104; individ- ualizes men, 113 Declaration of Independence, The, intensely practical, 4 ; takes rights for granted, 8 Delegates, Rival bodies of, 216 Democratic party, Reverence for the, 221 Despot, a creature of circumstances, 20 De Tocqueville, on the people of the colonies, 27 ; on the American citi- zen, 150 Development, Privilege of separate, secured by the Constitution, 191- 92 Dicey, A. V., on our constitutions, 147 Differences in interest and character of groups of States, 180-82 Discussion, Need of searching and constant, 102 ; newspaper, not of the necessary kind, 102-3; must be combined and compounded, 103 Dissatisfaction with state legisla- tion, 186-88 Documents, constitutional, The spirit of, 8-9 Douglas, Stephen A., and Mr. Lin- coln, 62 East, The, the most provincial part of the Union, 127 East and North, regions of concen- tration, 116-17; a common habit and attitude in the, 118-19 Economic conditions, Uniform regu- lation of, of our whole country im- possible, 179 Economic development of country, has obliterated many boundaries, 179-80; diversity in, 218 Economic problems, to be solved, 178 Elections, Efforts to separate local and national, 208 Electors, presidential, Provision for action of, 60-61 Elizabeth, Queen, a mettlesome leader of a mettlesome race, 31 ; England's suitable embodiment, 32; a foolish woman but a great statesman, 32; a self-constituted leader, 34 England, the mother of constitu- tional governments, The constitu- tion of, unwritten, 1 ; defined, 22 ; in the time of Elizabeth, 30-32; astir as never before, 31-32; came to her full consciousness as a na- tion, 32 ; prestige of, 34 ; political development of, dormant, 35; radical changes in government of, INDEX 227 the result of the American Revo- lution, 198-99 English constitutional history cen- tred about development of Par- liament, 10 English government, The ministers of the day the real executive in the, 200-1 English king and American President originally of the same model, 82 English Parliament and American Congress originally of the same model, 82 English politicians not clear theo- rists, 55 Englishmen, The immemorial birth- right of, 2 Executive, The, a new name for the Government, 15 ; subject to the laws, 24; and legislature in Eng- land united in counsel, 40; not necessarily so in the United States, 41 ; in the hands of the Presi- dent, 107 ; must be made a real body politic, 221 Executive, The federal, not dispersed into its many elements, 205 ; in itself a unit, 205 Executive, the state, Dispersion of, from top to bottom, 205 Federal government, see Government, Federal Federalist, The expositions of the, full of the theory of checks and balances, 56 Filipinos can be given constitutional government but not self-govern- ment, 52-53 Frederick the Great, and his making of Prussia into a nation, 33-34; leader as well as master, and self- constituted, 34 French Revolution, The convictions of the, aroused plain men, 36 Frontier, not traceable since 1890, 48 German criticism of our courts, 161, 167 Germanic feudal nation, Government as master in the early, 28 Golden Bull, The, exacted by the Magyar nobles of Hungary, 6 Government, of laws, and not of men, never existed, 17 Government, Four stages and forms of development of, 28 ; govern- ment as master, 28-30; through sagacity and fitness, 30-37; the stage of agitation, 37-40; the leaders of the people become the, 40-42 ; a living thing, accountable to Darwin, 56 ; no successful, with- out leadership, 57; two meanings of the term, 83;* synthesis, not antagonism, the whole art of, 106 ; no sovereign, ever in America, 146 ; assumed by the people, 147; re- formed by the election of good men to conduct it, 165; every, of men not of laws, 165 ; must have organs, 191 ; Hamilton's theory of, 199-200 ; a species of, in solution, 204; solidified by external au- thority of party, 204-5 ; mainten- ance of machinery of, complex and difficult, 207 ; functions of, farmed out to outside parties, 216; still in solution, 216-17 Government, Constitutional, What is, 1-24 ; a theory of politics, 1 ; defi- nition of, 2 ; had its rise at Runny- mede, 2 ; the history of, the history of political liberty, 3; philosophy of, 4; an instrumentality for the maintenance of liberty, 6; means for maintaining, 10; representa- tive bodies an indispensable part of a, 13-14 ; object of, 14, 18 ; ap- proach to the essence of, 15-16; a government of law, 17; has exalted the individual, 16, 18 ; the atmosphere of, that of opinion, 20, 22 ; distinguished from an uncon- stitutional, 21-22; ultimate and essential objects of a, 23 ; essential elements and institutions of a, 24 ; basis of a, 25 ; nothing but a community can have a, 26; four stages of development of, 28-42; full machinery of, dormant in Eng- land, 35 ; agitation the essence of, 38; parliamentary English, and 228 INDEX American forms of, 40; not con- centrated in the federal govern- ment, 41 ; each state a separate, 41 ; reasons for having a group of states united in a federal system, 44; based upon common under- standings, interests, impulses, and habits, 46, 51 ; the states a great contribution to, 50 ; can be given the Filipinos, 52-53 ; how to study, 82; counsel and criticism needed in business of, 102; regions as well as population must be repre- sented in a, 116-18; duty of statesmen to study right accom- modation of parts in, 140-41 ; President a controlling force in, 141 ; exists in completeness when every individual is a partner of the government, 143 ; whole balance of our system lies in the federal courts, 157; the statesmanship of control vested in the courts, 157, 168; interdependence of the sev- eral parts of a, 165-66 ; the only absolute safeguards of a, 166-67 ; our system of, a model of the reign of law, 172; the vital stuff of a, 180; maintained on basis of inti- mate understanding between gov- ernment and governed, 183 ; the understandings of, must be brought home to the people, 197 ; we must return to original conception of, 221-22 Government, The Federal, and its powers, 41 ; organized in the face of local jealousies, 45 ; increase of its powers, 47 ; constructed on the Whig theory of checks and bal- ances, 54, 86, 198-99; has had a vital and normal organic growth, 57 ; reaction of several parts of, upon one another, gives each its final form and character, 82 ; the active elements of, 99 ; leadership of each part of, 107 ; greatest power lies with part of, in closest touch with the nation, 109 ; that part is the President, 110 ; an indi- vidual can set up rights against, only in the courts, 143 ; restrained by the courts, 144; through the courts the final judge of its own powers, 157, 178 ; created by law, 161 ; relation of the States to, the cardinal question, 173-74; conceded the power to determine economic opportunities of the States, 175-76; spirit and action of, altered, 177 ; has no power not explicitly granted or reasonably inferred, 184 ; debatable powers of, 185 ; may not force wisdom upon the States, 187 ; normal and legiti- mate growth of powers of, 192; deliberate adding to, saps legal morality, 195 ; the executive in, a unit in itself, 205 ; three great func- tions of, subject to no common authority, 205 ; organization of branches of, emphasizes their sepa- ration, 206 ; disconnected parts of, to be brought into cooper- ation, 210 ; parts must act under direction of an outside master, 211 Government of England governed by opinion of nation, not by the courts, 145, 161 Governments are always govern- ments of men, 17 ; affected by agitation, 37-38; are what poli- ticians make them, 54 Hamilton, Alexander, Theory of government, 199-200 Hay, John, The frank professions of, received with doubt by foreign na- tions, 78 Hayne-Webster debate, The, the central dramatic force of all our history, 48-49 History, constitutional, The concern of, 9 House of Commons, Demands of leaders of the, regarding laws sub- mitted, 12; leaders of political party controlling the, are heads of the executive and guides in legis- lation, 40, 200 ; ministries selected by the majority in, approved by the king, 42 ; makes and unmakes Governments, 84, 99 ; not the Gov- ernment, but its leaders are, 84; INDEX 229 exhausts its originative capacity in producing a ministry, 99 ; in this more effective than House of Rep- resentatives, 100, 101 House of Representatives, The, 82- 111; two points of view of, 83; contrasted with House of Com- mons, 83-85 ; and Senate jealously guard their right to initiate legis- lation, 86; and Senate naturally unlike, 87; once debated, now does not, 88 ; organized into stand- ing committees, charged with its business, 89 ; all bills referred to committees, and its business what committees choose to make it, 89- 90; all committees appointed by the Speaker, 91-92 ; rules adopted by each new, 93-94 ; debates upon important bills, 95 ; controlled by party caucus of the majority, 95- 96 ; talks in its committee rooms, 96 ; originative force of, exhausted in making a Speaker, 99 ; over- burdened by its many committees, 100; its independence and isola- tion a weakness, 101 ; organiza- tion of, admired, 102 ; needed dis- cussion and common counsel lack- ing in, 102-3 ; process of legisla- tion too much hidden, and people criticize, 105-6; relations of, with the Senate, 106-7, 109-10; no common leadership, 107; under command of its Speaker, 107, 202 ; President may place, at a disad- vantage, 108 ; has silenced itself by its policy of independence, 109 ; has forfeited the office of gather- ing counsel and being the voice of the nation, 110-11; an organic unit, 112 ; represents chiefly the East and North, 117; no restraint on members of, regarding publicity of business done, 123; salaries paid to members of, not suffi- cient, 129; looked upon by the Senate as ephemeral, 136 ; per- sonnel of, changes rapidly, 136 ; represents localities with separate interests, 202 ; controlled by party, 202 ; effective organization of, 206 Hungary, The Golden Bull exacted by the Magyar nobles of, 6 Independence in an organization is isolation and weakness, 101 Individual, Liberties of the, in their adjustment to the law, 3 ; adjust- ment between the government and the, 5 ; the first fact of liberty, 16, 17 ; exalted and honored by con- stitutional government, 18 ; stimu- lated, 19 ; protected, 24 ; rights of the, under our laws, 147-52 ; must take the initiative, 147 ; restrictions in favor of, 148-49 ; his own guard- ian, 150 ; in England as in America, 151 ; must be afforded the oppor- tunity to protect himself, 154 Individuality, More of, in South and West than in East and North, 118-19 ; represented in the Senate, 121-22 Individuals, Congress acts upon, as directly as do state governments, 184 Initiative and referendum vs. repre- sentative assemblies, 104, 188 Institution, An, merely an estab- lished practice, 14 Institutions the creatures of opinion, 22-23 Institutions, Representative, see As- semblies Interests, The general, of the coun- try, under regulation of the federal government, 173-74; many new, 180 ; wide scope and variety of, 192 ; changes in, 194-95 Jackson, Andrew, The presidency under, 58 ; overstepped the bounds in disregarding the Supreme Court, 69, 159-60; never so sure he was right as when he was opposed, 175 John, King, and the barons at Runny- mede, 2-3, 53 Judges belong to their own genera- tion, 172, 193 Judiciary, An independent and incor- ruptible, necessary, 17-18, 24 ; the balance-wheel of our entire sysem, 142-43 230 INDEX Jurisdictions, Line between state and federal, 154-56, 171 King, choice of ministry by English, now a mere form, 42 ; a reality when U. S. Constitution was framed, 43-44; restrained by a written compact, 161 ; a "consti- tutional" monarch, 201 Labor, may Congress legislate on conditions of, 171 Law, Constitutional government a government of, 17; stability and incorruptible efficacy of the, 24; the practical side of, its applica- tion, 85; is not automatic, 150 Law, English and American, Theory of the, as to the individual, 18-19 ; as to the officer of government, 19-20 Law, federal, United States courts the ultimate judges of, 156 Law, state, Courts of the states the ultimate judges of, 156 Law-making bodies of England, No restraint upon the, known to their courts, 145 Law-making bodies of U. S., Powers of, definitely defined, 145-46 Laws, Development of the right of representative assemblies to make, 12-13 ; abound in minute adminis- trative details, 15; a government of, and not of men, never existed, 47 ; must be taken care of by the executive departments, 66 ; mak- ing of, exclusive sphere of Congress, 85 ; conflict of, our greatest po- litical danger, 186 Laws of England formulated by the ministers, 74 Leader, The country craves a single, 68 Leaders, Two forms of government under, 40 Leadership, and control must be lodged somewhere, 54 ; of the gov- ernment in the President, 66 ; be- longs to its executive officers, 72 ; no common, between House and Senate, 107 Legal practice, English, the same as American, 151 Legislation, Some presidents have refrained from directing, 72, 74; need of a national spokesman in, 73 ; process of, too much hidden, 105, 106 ; haphazard method of compounding, 107 ; lines between state and federal, in danger of obliteration, 171 ; ill-considered, by the States, 186-87 Legislatures as law-making assem- blies, 10-11; Burke on, 13; enact impracticable laws, 39, 187-88; loss of confidence in, 188-89 ; must be made our real bodies politic, 221 Liberty, The ideals of, cannot be fixed, 4; an unalterable principle of, 5 ; belongs to the individual or it does not exist, 16 ; not com- munal, 18 ; the object of constitu- tional government, 18 Liberty, Political, defined, 3-4; and illustrated, 5 Life, the last and most authoritative critic, 70 Life-processes, The, of making a na- tion, 48 Lincoln, Mr., and his unique task and achievement, 58 ; the nomina- tion of, 62-63 ; on a nation half slave and half free, 176 Local interest and preference, Con- clusive argument against, 217-18 Louis XIV master in the developed feudal nation, 28 Machinery, Complex electoral, makes party machinery necessary, 209 Magna Carta, exacted of John at Runnymede, a document of defini- tion, 2; the immortal service of, 3; renewals of, 7; merely safe- guards and regulates, 8 ; statement of individual right in, 22 ; may be ignored by Parliament, 144; de- fines rights against the crown not against Parliament, 145 Magna Carta, The, of Hungary, 6 Magyar nobles, The, of Hungary, exacted the Golden Bull, 6: con- INDEX 231 tended for the privileges of a class, 6; provided no machinery for maintenance of the agreement, 6-7 Maine, Sir Henry, on the men who colonized America, 52 Manufacturers find it impossible to obey laws of all the States, 186 Marshall, John, as lawyer and states- man, 158-59 ; his interpretations the products of insight, 159 ; deci- sions of, ignored by Andrew Jack- son, 159-60; gave to our federal government its scope and power, 168 Massachusetts Bill of Rights, 17 Members of Congress, General in- terest in selection of, 190 ; opinion of whole country beats upon, 191 Messages of presidents to Congress, 74 Middle States constitute a single eco- nomic and political unit, 180-81 Ministers, The, the Englishman calls "The Government," 83; are the Government, 84; executive au- thority vested in, 200-1 ; named by House of Commons, 201 Ministries, Modern English, merely committees of the House of Com- mons, 13; selected by leader of majority in House of Commons, 42 Minority, The, accorded representa- tion on committees, 97 ; has its own party organization, 98 Money in politics, Purchasing power of, 125 Montesquieu on the Whig polity in England, 55-56; followed by the makers of the federal constitution, 56 Moral and social questions not in the field of federal authority, 195 Moralization is by life, not by statute, 197 Nation, A, in its stage of social development, 28-30, 34; in its second stage of political develop- ment, 30, 34-37; in its third stage of agitation, 37-40; fourth stage of constitutional development, 40 ; life-processes of making a, to be seen, 48; called into being by Webster, 49 ; the nation and the President, 68; has risen to the first rank in power and resources, 78; regards the House as a piece of law-making machinery, not a deliberative assembly, 109 Nationalizing process, Steady move- ment of the,. 47-49; limitations of the, 49-50 ; contribution of par- ties to, 218-20 New England States in most respects of a piece, 180 Newspapers, Influence of, 102-3; reflect local not national condi- tions, 126 Newton vs. Darwin in development of political theories, 55-56 Newtonian theory of the universe applied by the English Whigs to politics, 54-56, 199 ; some presi- dents have held to the, 70 Nominating conventions, How man- aged, 61-62 ; danger of the method, 63 ; party national committees con- trol, 63-64 ; pick out party leader from body of the nation, 65 ; in- stinctive feeling in, upon occasion, 69 Non-partisan local political action, Failure of, 208 Nullification, Failure of, 175 Officer of government, No peculiar dignity attaches to an, 19 ; has no authority outside the law, 20; cannot be a party to a suit, 148; ceases to be an officer when he oversteps his authority, 151 ; not so in other countries than England and America, 151-52 Offices, Local, indispensable, as re- wards for party fidelity, 209 Officials, No constitutional machin- ery provided for choosing the thou- sands of, 210 Opinion, Privilege of independent local, secured by the Constitution, 192 Opinion, Public, the atmosphere of 232 INDEX every government, 20 ; organized and unorganized, 21 ; institutions the creatures of, 22-23 ; action sobering to, 39 ; and party cen- tred in a popular President, 69 ; the House not the organ of, 109 ; the law of the union of House and Senate, 110; the President nearest to, 110; homogeneity of, in the East and North, 118-19; variety of, represented in the Senate, 119; no national organ of, 126 ; rela- tion of the courts to, 171-72 Opinions, Two kinds of strong judi- cial, 194 Parliament, The first, in England, 7 ; original purpose of, 10-11 ; rela- tion of, to the government, 11-13 ; what the Whigs strove to make, 55; the grand assize, to criticize and control the Government, 84; has remained separate and waits for Government action, 87 ; can ignore Magna Carta and the Bill of Rights unchecked by the courts, 144; restrained only by public opinion, 161 ; separation of, from the crown, that of the real from the nominal executive, 201 Parliamentary English form of gov- ernment, 40 Parties, Organization and operation of, in the United States, 198 ; con- trol the personnel of all branches of the government, 205 ; give co- herence to the action of political forces, 206; test their hold upon public opinion only by elections, 207 ; cannot form and reform for different purposes, 208 ; dispersion of offices and of functions and au- thorities have produced, 211; means of cooperation through, 211 ; at once necessary and disreputable, 214 ; nationalizing influence of great, 217-18; our real body politic, 218-20; reverence for, an obstacle to reform, 220-21 ; new uses for, 221 ; must be made instruments, 222 Party, a distinct authority outside formal government only in United States, 211 ; in other governments, is indistinguishable, 212; control of, over government, uncertain, 216 ; must be made responsible, 220 Party authority, Extraordinary de- velopment of, 206 Party government, in the United States, 198-222; closely knit im- perative discipline of, 205 ; re- quirements of party managers, 206- 9; necessity for party machines, 209 ; local offices indispensable to party discipline, 209; to what peculiarities of, are due, 210, 213; necessary and beneficial, 210; machinery of, nominally represen- tative, 216 Party majorities in England are the government, 213 Party managers, Irresponsible pri- vate, 210-11 ; difficult business of, 213-14 Party national committees control nominating conventions, 63-64 Party objects, The accomplishment of, the whole art of statesmanship, 54 Party programs made up by conven- tions controlled by politicians, 213 Passions, Great, in a whole popula- tion, find a great spokesman, 36 Paternalism, 195 People, A living, needs not a master but a leader, 34 ; no people can be given the self-control of maturity, 53; we are an industrial, and too "practical," 187; incapable of wielding power assigned them, 210 ; revolt of, against party bosses, 214 Petition of Right, The, a part of the written constitution of England, 22 Political liberty, see Liberty, Politi- cal. Politicians not clear theorists, 55; only limits likely to be observed by, 179; distinction between, and statesmen, 212 Politicians, professional, Machinery of, cannot be supplanted, 214; disrepute of, unconstitutional, 214 INDEX 233 Politics, Purchasing power of money in, 125 ; provincialism, one of the serious difficulties of, 126; unity and coherence in our, 217 Poor man, Interest of the, in coun- try's prosperity, greater than that of the rich man, 115 Power a positive not a negative thing, 106 Powers, granted to and denied to Con- gress, 148-49; denied the states, 149; our constitutions appor- tion, 149 ; definition of, by makers of Constitution, 173; distribution of, among States, is the localiza- tion of constitutional understand- ings, 183 Presidency, The, has varied with the man and the circumstances, 57- 59, 69; from 1789 to 1825, 57; during Jackson's time, 58; from 1836 to 1861, 58; under Mr. Lin- coln, 58; from 1865 to 1898, 58- 59 ; since the war with Spain, 59 ; how nominations for the, are made, 61-62; cabinet officers in line of succession for, 64 ; what the Presi- dent has sagacity and force to make it, 69; the cabinet an index of the theory of, 77 ; future develop- ment of, 80; succession to, 132 President, The, of the United States, not expected to lead Congress, 40- 41 ; conceived upon the model of the English king of the eighteenth century, 43-44; chapter on, 54- 81 ; easier to write of, than the presidency, 54, 57; balanced off against Congress, 56 ; made only the legal executive by makers of the Constitution, 59, 79 ; has be- come leader of his party, and of the nation, 60, 79; role of party leader forced upon him, 60 ; choice of, by party conventions, 61-62 ; no training school for, 63-64 ; men best prepared to be, 64; kind of man selected for, 65-66 ; executive and political powers of, 66-67; leader of his party, 67, 107; po- litical leader of the nation, 68; or both, 69 ; at liberty to be as big as he can be, 70 ; personal force of, perfectly constitutional, 71 ; his relations with Congress, 72-73, 201 ; veto power of, 73 ; has no access to floor of Congress, 73, 202 ; made by the power of veto more powerful than the king of Eng- land, 74 ; power behind messages of, 74 ; choice of cabinet by, 75 ; cannot be the actual executive, 76 ; may be like or more than his cabi- net, 77 ; his control of the foreign relations of the nation, 77-78 ; only twice decisively influential, 78; summary of duties and in- fluence of, 78-81 ; tax on, of ap- pointments to office, 79 ; can secure his own relief, 80-81 ; should be less of an executive and more of a director, 81 ; intended to be a reformed and standardized king, 82 ; not leader of the Gov- ernment as a whole, 107 ; the executive in the hands of, 107 ; difference between the Speaker and, 108; may appeal to the nation, 108 ; has most direct ac- cess to public opinion, 110; our one national figure, 127, 202; can form opinion by his own di- rect influence, 127 ; condescen- sion of older senators towards, 130 ; an amateur to the professional senator, 130; relations of, with the Senate, 138-40; policy and duty of, to treat Senate as an ex- ecutive council, 140 ; a controlling power in blending contending elements, 141 ; his isolation, his exaltation, 202 ; cooperatively bound to the houses by machinery of party, 203 ; controls personnel of the executive department, 205 ; consolidation of executive under, 206 ; power of, as a national boss, 215; restrained by his position, 215 President pro tempore of the Senate, 131-33 Privileges, The maintenance of, con- tended for, in Magna Carta and other constitutional documents, 7-9 234 INDEX Protestant Reformation, The con- victions of the, stirred all ranks of men, 36 Provincialism in politics, 126; in the East, 127 Prussia under Frederick the Great, 33-34; her dependent bureau- cracy, 35, 36 Public opinion, see Opinion, Public Purpose, A common, the result of common counsel, 30 Recognition by the Speaker in House of Representatives, 92-93 Reed, Thomas B., on the House of Representatives, 88 Referendum, The, and the initia- tive vs. representative assemblies, 104 Reform associations, 214 Reforms, Easy to advocate, difficult to formulate, 39 Regions as well as population must be represented, 116-18 Representative assemblies, see As- semblies Representative principle, Abandon- ment of the, 188 Republican party, Reverence for the, 221 Revolution, see American Revolu- tion Rights, Abstract, difficult of execu- tion, 16; question of state and federal, involved in every great crisis, 174 ; in controversy over tariff legislation, 175 ; in the slavery question, 176; now upon us anew, 177-78 Roosevelt, Theodore, Selection of cabinet by, 76 Ruler, A great, makes great subjects, 32; what one may do by way of leadership, 33 Rules, Committee on, Powers of the, 93-95 Runnymede, The barons at, estab- lished constitutional government, 2-3 ; the understanding at, 20 ; process of, can be reversed, 53 ; repeated by Marshall and Jack- son, 160-61 Secretary of State, The, as candidate for the presidency, 64-65; the best statesmen needed to fill the office of, 78 Sectional interests controlled by party discipline, 219-20 Self-government, the consummate stage of constitutional develop- ment, 51 ; a form of character, 52 ; cannot be "given" to any people, 53; to be gained by a definite process, 53; test of the processes of, 188-90, 196 Senate, The, doubtless meant to be a part of the Government, 86 jealous of rights in legislation, 86 naturally unlike the House, 87 represents the States as political units, 87; a place of free and prolonged debate, 88, 135; lead- ers of, must counsel with the Speaker, 98; a council, not an organization, 99, 106 ; relations between the House and, not cordial, 106, 109-10; guided by a small group of senators, 107 ; chapter on the, 112-41; difficult to form a just estimate of, 112; a body of individuals, 113; repre- sents the country, not the people, 113-14, 116; mistaken criticism of, 114; represents the individual parts of the country, 117-18, 202; the population in its variety not its numbers, 119-20; has kept its original rules of debate and pro- cedure, 121 ; methods of getting seats in, 123-25 ; influence in, de- pendent on experience, not money, 128 ; organization of, 130-35 ; the Vice President not a member of, 131 ; president pro tempore of, a vital political figure, 131-33; prepares its business through standing committees, 131, 133; leader of, the chairman of the majority caucus, 133 ; each party in, organized through its caucus, 133 ; not controlled by committees, 134; make-up of committees of, 135 ; discussions in, the only means of making public business known, idate INDEX 235 135 ; difficult of coordination with other organs of government, 135- 36; looks upon the House as ephemeral, 136 ; personnel of, changes slowly, 136 ; party changes affect, but little, 137; leaders in, men proved by counsel, 137-38; relations of, with the President, 138-40 ; under outside party con- trol, 203 Senators, not mere legislators, but members of a great executive council, 122; reticence of, 123; majority of, obtain seats by legitimate methods, 127 ; the choice of the people, 128 ; salaries of, not large enough to command men of best abilities, 129 ; a body of representative American men, 129 ; condescension of older, towards the President, 130 Seward and Lincoln, and the Chicago convention, 62 Sheriff, Legal impertinence of a, to governor, 204 Slavery question, The, 176 ; sprung out of the actual movement of affairs, 177; social contrasts cre- ated by, 218-19 Social differences cut deeper than economic, 218-19; becoming less obvious, 220 South and West, The, not yet cen- tres of wealth or population, 117; more individuality in, 118; repre- sent the older America, 118 Southern States, Community of in- terest of the, 180 Spain, The war with, made foreign questions leading ones, and the President leader, 59 Speaker, The, almost autocratic master of the House, 91 ; undis- puted party leader, 91 ; appoints all committees and controls their action, 91-92; controls debate, 92-93; may determine what the House shall hear, 93; controls Committee on Rules, 94-95; the instrument as well as leader of the majority, 95; consulted by com- mittees, 97; next in influence to the President, 98 ; the impersona- tion of the House, 99 ; difficulty of, in appointing effective com- mittees, 100; in command of the House, 107 Speech not the only vent for opinion, 39 Stagnation of peoples the rule, not the exception, 29 State constitutions, Tests of, may be applied in the federal courts, 155-57 State governments, Natural scope and limits of their powers, 49; development of United States would have been impossible with- out the, 50 ; the normal machinery of our legal adjustment, 51 ; no longer truly representative, 189- 90; need reorganization along simpler lines, 191 ; reorganization of, 197 ; in their make-up Whig inventions, 198 ; structure of, 203 ; operation of, 204 ; complete dis- persion of executive in, 205 State legislatures, Speakers of, party leaders, 91 ; powers of, 175 ; con- fidence in, impaired, 188-90 State officers and legislators ap- pointed, not elected, 190 State sovereignty, Old theory of, has lost its vitality, 178 States, the, Dispersion of constitu- tional powers among, 41-42 ; could not be merged under one gov- ernment, 44; not one community, 46; the constant making of, 48; essential, 49; our great contribu- tion to constitutional develop- ment, 50; variety of social and economic conditions in, 115-17; mistakes in making new, 121 ; restrictions placed upon, by their constitutions, 149 ; greater part of legal regulation left to, 179 ; not mere units of local govern- ment, 180; earlier, formed upon geographical lines, 181 ; differ- ences between groups of, must be recognized and provided for, 181- 82 ; self-originated, self-sustain- ing, 182; possess the whole ordi- nary field of law, 183; are the 236 INDEX ordinary governments of the coun- try, 184; ill-considered legislation by, 186-87; must correct their own mistakes, 187; something wrong in their governments, 188 States, The, and the federal govern- ment, 173-97 ; relation of, the cardinal question of our constitu- tional system, 173-74; principle of division of powers between, a simple one, 175 ; a question of vitality, 179 ; controversy springs out of actual movement of affairs, 177 ; a fundamental question of constitutional law now upon us, 178 ; division of powers between, at first normal and natural, 183; now at an unstable equilibrium, 191 ; modification and transfer of functions between, along lines of alterations of interest, 194 Statesman and politician, Distinction between, 212-13 Statesmanship, The whole art of, 54 ; new tasks set for, 178, 180 Statesmanship of control, vested in our courts, 157 ; also that of adaptation, 168 Steering committee of the House, 91 ; of the Senate majority caucus, 134 Supreme Court, Reticence of mem- bers of the, 122-23; adaptation of the Constitution in the hands of the, 158; constitutional deci- sions of the, made with scrupulous care, 162; has read the power of Congress under the Constitu- tion, 169-70 Synthesis, not antagonism, the whole art of government, 106 ; a vital, lacking in our constitutional sys- tem, 109, 221 Tariff legislation involved question of state and federal rights, 174-75 Understanding, A definite, between governors and governed, 3, 7, 12, 18, 20-22, 25, 37, 183, 222; not secured in Hungary, 6 ; in the United States, 9-10, 13, 14; of constitutional government, 50-52; acts destructive of, 71 ; discussion of public business necessary under, 102 ; the individual has appeal to, in the courts, 143 ; in Magna Carta and the Bill of Rights, not defended by English courts, 144; our detailed and definite, 161-62 Understandings, Vital constitu- tional, 183; our "practical" de- mands not favorable to, 187 United States, Place of the, in • on- stitutional development, 25- 53 ; can the, be regarded as a com- munity? 26, 51; radical changes operating for unity in the, 46-48; have had no frontier since 1890, 48 ; impossible to generalize about the, 51 ; not a homogeneous com- munity, 180 ; divided socially and economically into regions rather than States, 180-81 Veto power, of the President, 59-60, 73 ; in England, 73-74 Vice President, The, and his relations to the Senate, 130-31 Voters, Impossible task imposed on, 189-90, 216; united by parties upon national questions, 217; must have fewer things to act upon, 221-22 Washington selected cabinet from both parties, 75 ; made constant use of his colleagues, 80 Webster, Daniel, called the nation into full consciousness, 49 Webster-Hayne debate, The, the central dramatic force of all our history, 48-49 Westward expansion the chief fac- tor of national feeling, 48 Whig contest with the crown, 198-99 Whig theory of political dynamics, The, 54; like the Newtonian theory of the universe, 54-55; a system of checks and balances, 55- 56 ; some presidents have held to, 70; extraordinary influence of, in American politics, 203 ; reductio ad particulam, 204 ; enacted into law, 205; have we had enough of? 222 ajLL THE COLUMBIA UNIVERSITY PRESS Columbia University in the City of New York The Press was incorporated June 8, 1893, to promote the pub- lication of the results of original research. 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