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 AMERICAN STATE 
 
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READINGS ON 
 
 AMERICAN STATE 
 
 GOVERNMENT 
 
 EDITED BY 
 
 PAUL S. REINSCH 
 
 PROFESSOR OF POLITICAL SCIENCE IN THE UNIVERSITY OF WISCONSIN 
 AUTHOR OF "WORLD POLITICS," "COLONIAL GOVERNMENT," 
 "AMERICAN LEGISLATURES," "READINGS IN AMERI- 
 CAN FEDERAL GOVERNMENT." ETC. 
 
 GINN AND COMPANY 
 
 BOSTON • NEW YORK • CH.TCAGO • LONDON 
 1 
 
 rc 
 

 COPYIUGHT, igil I 
 
 By PAUL S. REINSCH 
 
 ALL RIGHTS RESERVED 
 811.3 
 
 <g6e latSenaum Tftxtts 
 
 CINN AND COMPANY ■ PRO- 
 PRIETORS ■ BOSTON ■ U.S.A. 
 
PREFACE 
 
 The editor offers this second volume of readings to students 
 and to the public in the hope that it may help to make more 
 familiar the actual working of our state governments. It is mat- 
 ter for regret that there is no such source of information as the 
 Congressional Record affords in matters relating to the national 
 government. So much of the real activity of the state legislatures 
 taking place in the comparative seclusion of committee, combined 
 with the incomplete nature and intent of the current press reports, 
 forces the student of the real life of the state lawmaking bodies to 
 rely upon the agencies which are coming into existence to remedy 
 this defective publicity and observation. State documents, too, are, 
 in the main, rather statistical and local in character. The messages 
 of the governors are frequently, however, quite invaluable sources, 
 while the opinions of our courts and the conferences of the bar 
 associations are a seemingly hitherto unworked mine. To the field 
 workers in the study of actual government — the newspaper re- 
 porters and magazine writers — the public and students owe a debt 
 they are not always conscious of. 
 
 The editor desires to make grateful acknowledgment to the 
 various publishers and authors, individually recognized in the text, 
 who have generously permitted him to make use of selections 
 from articles or works published or written by them. 
 
 The editor of the present collection desires to express his deep 
 indebtedness to his colleague and friend, Mr. William L. Bailey, 
 for his invaluable assistance in the preparation of this voliime. 
 Not only did he furnish many of the selections, but he counseled 
 with respect to the general plan of the book ; and, finally, the 
 editor, called abroad on a public mission, was obliged to turn over 
 to him the arduous task of seeing the volume through the press. 
 
 PAUL S. REINSCH 
 
CONTENTS 
 
 I. The Governor page 
 
 W. E. Russell, The Power of the Governor i 
 
 William Allen White, Folk as Governor .... . . lo 
 
 Executive Usurpation - . . 14 
 
 Governors and Legislatures 17 
 
 Justice Henderson on the Pardoning Power 19 
 
 Governor Folk, The Enforcement of Law 26 
 
 Governor Willson on Law Enforcement in Kentucky . 28 
 
 n. The Legislature 
 
 Samuel P. Orth, Our State Legislatures 41 
 
 Ernest L. Bogart, Financial Procedure in Legislatures ... 56 
 
 James Bryce on Methods and Conditions of Legislation . . 61 
 
 Charles McCarthy, Legislative Reference Department 63 
 
 Methods of Legislation .... . 74 
 
 Governor Russell on the Lobby . . 79 
 
 Governor La FoUette on Lobbying 81 
 
 Senator Bourne on Popular Government in Oregon .... 84 
 Margaret A. Schaffner, The Initiative, the Referendum, and 
 
 the Recall 108 
 
 Judge Baldwin on the Extended Sphere of Legislative Action . 116 
 
 Elihu Root on Legislative Apportionment 120 
 
 Governor McLean on Legislative Apportionment 127 
 
 George W. Alger, The Law and Industrial Inequality . . . 129 
 
 III. The Judiciary 
 
 William L. Carpenter, Courts of Last Resort ... . . 140 
 
 H. T. Lummus, The Practical Working of the Appeal System . 150 
 
 William R. Smith, Politics and the Judiciary 158 
 
 Simon Fleischmann, Claims against the State 168 
 
 IV. The Criminal Law 
 
 William H. Taft on Delays and Defects in the Enforcement 
 
 of Law 173 
 
 James W. Garner, Crime and Judicial Inefficiency . i8i 
 Julian W. Mack on the Juvenile Court . . . . -199 
 
 E. A. Snively on the Parole Law of Illinois 207 
 
 The Pennsylvania Constabulary 217 
 
 V. The State Administration 
 
 F. H. White, The Growth and Future of State Boards and 
 Commissions ... .... . ... 222 
 
 Thomas Mott Osborne, The Public Service Commissions Law 
 
 of New York 240 
 
 V 
 
vi AMERICAN STATE GOVERNMENT 
 
 PAGE 
 
 Governor La Follette on Railway Regulation 252 
 
 The Supreme Court on State Conservation of Natural Re- 
 sources . . . .... . . ■ 262 
 
 The Maine Supreme Court on Natural Resources as State 
 
 Property . 265 
 
 Governor Hughes on Conservation in New York . . . . 271 
 
 Henry S. Graves on Forestry by the States 284 
 
 S. H. Wolfe, Present Supervision of Life Insurance, its Merits 
 
 and Defects ... .... ... . . 286 
 
 T. S. Adams, Separation of the Sources of State and Local 
 
 Revenues . .... 293 
 
 J. A. Fairlie, State Supervision of Local Finance .... 301 
 Governor La Follette, Taxation of the Property of "Railway 
 
 Corporations . . . . 310 
 
 Henry C. Adams, Tendencies in Railway Taxation 318 
 
 Governor La Follette on Protection of the State Treasury . . 325 
 
 VL Educatiox 
 
 George W. Curtis, Education and Local Patriotism . . 328 
 
 Jacob Gould Schurman on the Government of State Universities 33 1 
 
 Workingmen and Higher Education .... .... 336 
 
 Vn. Prohibition 
 
 Governor Folk on the Saloon and the Law 338 
 
 F. C. Iglehart, The Nation's Antidrink Crusade 342 
 
 F. C. Iglehart, Another Year of Defeat for the American Saloon 357 
 
 VIII. Elections and Nominations 
 
 Philip Loring Allen, The Multifarious Australian Ballot . . 364 
 
 Richard S. Childs, The Short Ballot . . .... 372 
 
 Governor La Follette on Nominations by Direct Vote of the 
 
 People . . . . . 383 
 
 Governor La Follette on Majority Nominations 394 
 
 Charles K. Lush, An Essential Amendment to the Primary Law 399 
 
 George H. Haynes, Popular Control of Senatorial Elections 404 
 
 How the People are using their New Power of Nomination . 414 
 
 Senatorial Deadlocks . ... ... ... 421 
 
 Governor Folk on Bribery Laws . . 428 
 
 Governor Garvin, The State Boss 432 
 
 IX. Constitutional Conventions 
 
 J. H. Hamlin, The New York Constitutional Convention . . 435 
 
 J. A. Fairlie, The Michigan Constitutional Convention . . . 438 
 
 J. Q. Dealey, General Tendencies in State Constitutions 443 
 
 C. A. Beard, The Constitution of Oklahoma 450 
 
 BIBLIOGRAPHICAL NOTE 465 
 
 INDEX 471 
 
READINGS ON 
 AMERICAN STATE GOVERNMENT 
 
 I 
 
 THE GOVERNOR 
 
 THE POWER OF THE GOVERNORS 
 
 By Governor W. E. Russell 
 
 [The power of the governor in the New England states has been affected 
 by historical conditions. The early period from which the constitutions of these 
 states date, and the large powers reserved to the assembly, cause the position 
 of the New England executive to be comparatively weak. Also, because of the 
 complexity of conditions consequent upon the industrialization of the New 
 England states, the commission movement has been stronger there. In differ- 
 ent parts of the country it is often the experience of a strong executive to find 
 his projects weakened by legislative opposition or indifference. However, on 
 the whole, the governor as head of the administrative departments and of the 
 state government has a growing influence over legislative action.] 
 
 Gentlemen of the Senate and House of Representatives : 
 
 Profoundly grateful to the people of the commonwealth for the re- 
 newed confidence which has again intrusted me with important public 
 duties, I enter upon their discharge by submitting to you such suggestions 
 and recommendations as seem to merit your consideration and action. 
 
 This privilege of addressing the legislature, accorded the governor by 
 long-established custom, is not, in my judgment, best used in a perfunc- 
 tory statement of the recommendations of the various departments of 
 the commonwealth, all of which are set forth fully in their reports to you. 
 I believe it better to make this the occasion for a broader treatment of 
 public questions, for giving expression to the people's wishes and wants, 
 and for suggestion to the legislature, and through it to the public, of any 
 policy or reform which seems to the governor wise and necessary, and 
 for which he is' ready to assume responsibility. Department recommen- 
 dations can be called to your attention in a later message, if necessary, 
 
 1 Address to the Massachusetts Legislature, January, 1892. 
 I 
 
2 AMERICAN STATE GOVERNMENT 
 
 with such indorsement or criticism as they suggest. This cause separates 
 more clearly the views of the executive and of the departments, and gives 
 to both greater emphasis and responsibility. It requires the chosen rep- 
 resentative of the people, as his first duty, to submit to you their opinion, 
 indicated by their votes, upon such public matters within your jurisdiction 
 as demand your attention. So will elections mean a choice between prin- 
 ciples and measures rather than between men. 
 
 The close dependence of the people upon their state government, the 
 great and immediate control it exercises over them and their liberty, prop- 
 erty, and welfare, make the duty imperative of keeping that government 
 efficient and responsible in its work, and of adopting any changes or 
 reforms necessary to this end. With the tendency each year to increase 
 its duties and to multiply its subjects, and thus to enlarge its power over 
 public and individual interests, the greater is the necessity that this power 
 should be restrained by such official responsibility as will keep it well 
 within the control of the people and make every administrative officer 
 answerable to them. '" The first requisite of efficient administration," 
 says an experienced writer, " is power with responsibility to a constituency 
 which can readily call it to account." Machinery of government which 
 worked easily and well when its duties were comparatively few and simple 
 may be too cumbersome to meet its many and complicated duties of later 
 days, and entirely inadequate to bring the government, now more and 
 more felt by the people, within their control. Faithful and efficient serv- 
 ice may make a bad system work well, or mitigate its lack of respon- 
 sibility ; but sound administration cannot permanently be had under such 
 conditions, nor until the system itself is changed and corrected. 
 
 In my judgment the time has come when the attention of the legislature 
 ought to be directed to the executive branch of our government, to the 
 great increase of its duties, the lack of uniformity or system in the organi- 
 zation created for their discharge, and its entire absence of responsibility, 
 except in the high character and conscientious service of officials in its 
 various departments. My criticism is not of officials, but of a system ; 
 and the test of that system is not the faithful work which they have done, 
 but the unfaithful work others might do without adequate responsibility 
 to call them to account. If danger lurks in the system, if it can permit 
 arbitrary acts without control, misconduct without correction, or official 
 administration without responsibility, it is wrong. 
 
 A year ago in my inaugural address I briefly considered this subject. 
 The experience of the year has strengthened my conviction upon the views 
 and recommendations then expressed. As the subject has been constantly 
 before the people in the meantime, by executive action, debate in the 
 legislature, and discussion through the press and in the last political cam- 
 paign, and the people may fairly be considered to have 'formed and ex- 
 pressed their opinion upon it, I deem it my first duty to urge upon you 
 a thorough examination of our methods of executive and administrative 
 
THE GOVERNOR 3 
 
 work, and the adoption of such changes as will bring into it complete 
 responsibility to the people, and will simplify machinery at present com- 
 plex, without system or uniformity. 
 
 A brief examination of the gradual but large growth of executive work 
 and executive offices in the more than one hundred years of our consti- 
 tutional government is necessary for an intelligent consideration of this 
 matter. For some years after the adoption of our constitution in 1780 
 there were few administrative officers to be appointed or supervised by 
 the governor. While the constitution definitely fixed the appointment 
 and tenure of judicial and military officers, it left to the legislature the 
 power " to provide by fixed laws for the naming and settling all civil 
 officers within the commonwealth, the election and constitution of whom 
 are not in this form of government otherwise provided for, and to set 
 forth the several duties, powers, and limits of the several civil and military 
 officers of the commonwealth." It was not then foreseen, nor has it been 
 at any time since, how great would be the growth of executive work, and 
 how varied and intricate the subjects of public and private interest with 
 which it would deal. Consequently, neither by the constitution nor by 
 any legislative act has there been established any uniform system ; but, 
 as the exigency of the moment demanded, an office has been created, 
 apparently without much thought of its relation to the executive machin- 
 ery already or thereafter to be established. As in the multiplicity of laws 
 it becomes imperative at last to codify and systematize them, so in the 
 multiplicity of offices the same necessity may exist. 
 
 The growth of the commonwealth, the creation and increase of her 
 penal, reformatory, and charitable institutions and of new subjects of 
 public supervision or control, have compelled the legislature, under the 
 authority conferred upon it, to establish numerous offices and departments 
 as the necessary machinery for the administration of this work. Most of 
 these are of comparatively recent date, created with little regard to uni- 
 formity of government or direct responsibility. There are to-day in the 
 executive department of the commonwealth over three hundred officers, 
 commissioners, and trustees, not including clerks and other subordinate 
 officers, participating by statute authority in the administration of our 
 government. There are over twenty-five state commissions (some, 
 however, not purely executive) and more than one hundred trustees 
 of public institutions. Whether this number can be reduced by aboli- 
 tion or consolidation of offices has been considered by a special com- 
 mittee of the last legislature, who will submit to you the result of 
 its investigation. 
 
 In my judgment that question is rather one of detail than of principle, 
 and by no means as important as the question of uniformity and respon- 
 sibility in the administration of these public trusts. At present there is 
 neither. The tenure of some commissioners and trustees is three years ; 
 of others, five ; of others, seven ; and of one board, eight. This tenure 
 
4 AMERICAN STATE GOVERNMENT 
 
 is fixed by law, and gives the occupant a right to hold the oflfice for its 
 full term, in the absence of express statute provision for removal. In 
 many of the statutes there is no such provision, and where it exists there 
 is no uniformit)'. Members of four commissions and the medical exam- 
 iners can be removed for sufficient cause by the governor with the con- 
 sent of the council ; members of eleven commissions can be removed 
 with or without cause by the governor, but only with the same consent. 
 Only eight officers, outside of the district police, can be removed by the 
 governor alone, upon his own responsibility. That is the extent of his 
 effective and responsible executive control. Five boards of trustees are 
 removable "" for sufficient cause," but without any provision as to who 
 shall exercise this power. Of the remaining administrative boards and 
 officers appointed for a fixed term, including the boards of lunacy and 
 charity, of health, of education, of prisons, the state members of the board 
 of agriculture, and other officers holding important public trusts, there is 
 no power of removal in anybody, except by the cumbrous machinery of 
 impeachment. More than one hundred and twenty important executive 
 officers are thus, during a tenure of office varying from three to eight 
 years, beyond the reach and control of any executive power. All of these 
 officers perform public duties, expend pulalic money, and administer pub- 
 lic trusts. In some way they should be made responsible to the people ; 
 otherwise there is danger of friction and conflict. Arbitrary acts cannot 
 be controlled, misconduct cannot be punished, nor can any one be held 
 directly and properly responsible for official action. 
 
 As an illustration of our irresponsible system I again call the attention 
 of the legislature to our method of prison management. At present the 
 warden in charge of the prison has no power over his principal subordi- 
 nates, either in their appointment or removal, except with the concurrence 
 of the prison commissioners, with an appeal to the governor and council 
 in case of conflict ; the commissioners in charge of the institution have 
 no power over the appointment or removal of the warden ; and neither 
 the governor nor any one else has any power over the commissioners. 
 In case of mismanagement, inefficiency, or trouble and insubordination 
 within the prison, such as have occurred in times past, where lies the re- 
 sponsibility or the remedy ? In my judgment the warden should be given 
 power over his subordinate officials, the prison commissioners power over 
 him, and the governor power over them, and for its exercise, he should 
 answer to the people. A bill to this effect was reported to the last legis- 
 lature by one of its committees. In the house it was amended by a 
 provision that the power of the governor should be exercised only 
 with the consent of the council, thus destroying the most important 
 link in the chain of responsibility, and the one which brought this 
 executive power within the control of the people, and its exercise under 
 responsibility to them. The bill as amended was properly defeated in 
 the senate. 
 
THE GOVERNOR 5 
 
 Suppose that some administrative board, within its limited authority 
 in part to administer the people's government, should knowingly adopt 
 a policy against the wish of the people, or against their will as deliber- 
 ately expressed through their legislature, — are the people to have no 
 control over such board or its action ? Is their government to this extent 
 to be beyond their reach ? 
 
 All must agree that the safe and democratic form of government is to 
 make these administrative officers in some way responsible to the people. 
 This is in accord with the constitutional intent, as expressed in the Dec- 
 laration of Rights, that " All power residing originally in the people, and 
 being derived from them, the several magistrates and officers of govern- 
 ment, vested with authority, whether legislative, executive, or judicial, are 
 their substitutes and agents, and are at all times accountable to them." 
 Again it says : " In order to prevent those who are vested with authority 
 from becoming oppressors, the people have a right, at such periods and 
 in such manner as they shall establish by their frame of government, to 
 cause their public officers to return to private life ; and to fill up vacant 
 places by certain and regular elections and appointments." In giving to 
 the legislature authority to create administrative offices, and to fix their 
 tenure, duties, and powers, the constitution contemplated that such author- 
 ity would be exercised, with due observance of its injunctions, to make 
 such officers accountable to the people and to preserve to the people 
 their power over them. 
 
 How can this best be done ? It is not practicable to elect them. They 
 must be appointed ; and, to be responsible to the people, they should be 
 under the control of the elected servants of the people. They cannot be 
 made responsible directly to the legislature, for this is expressly forbid- 
 den by the constitution. The legislature which created the office can 
 abolish it ; but responsibility dependent upon such remedy involves de- 
 struction of the administrative machinery whenever a particular admin- 
 istrator is inefficient or unfaithful. There remains only its power of 
 impeachment, restricted to cases of " misconduct and maladministration 
 in office." This involves trial and conviction upon formal charges, and 
 requires so much time and effort that it cannot be an effective and con- 
 stant means of making administrators responsible to the people. 
 
 The power of removal, as a necessity for responsible control, must 
 then be vested in the executive department ; and I submit that it can 
 best be vested in the head of that department. Our constitution, in creat- 
 ing his office, declared that he " shall be a supreme executive magistrate " ; 
 and, further, " that he should in all cases act with freedom for the benefit 
 of the public." It nowhere limits his executive supervision of executive 
 work, nor suggests that his direct and immediate responsibility to the 
 people should be lessened by statutory creation of departments, boards, 
 and offices beyond his control. If they are not within his control, they 
 are beyond that of the people. 
 
6 AMERICAN STATE GOVERNMENT 
 
 Provisions much like ours in the constitution of Pennsylvania have 
 been construed by her supreme court as vesting in the governor the 
 absolute power of removal. In its decision the court says : 
 
 The powers of the governor are never suspended. He is at all times author- 
 ized to exercise " the supreme power." The fact that an officer may be removed 
 by the dilatory process of impeachment creates no argument against the sum- 
 mary power of removal by the governor. Crime, imbecility, or gross neglect of 
 duty may demand that an officer shall be removed at once. The power to 
 protect the people of the commonwealth by prompt action is wisely given to the 
 governor. In giving construction to the constitution we cannot assume that he 
 will abuse that high trust.^ 
 
 Our constitution, framed and adopted in the midst of war, when mili- 
 tary powers were uppermost in the minds of the people, and remaining 
 unchanged in this respect through wars and rebellions within and without 
 the commonwealth, gives to the governor at such times power almost 
 autocratic. The exercise of this power by a governor accountable to the 
 people has been ever — but especially during the Civil War, by the great 
 Andrew — efficient, responsible, and to their entire satisfaction. It is 
 hardly conceivable that the constitution intended that the governor, thus 
 trusted with great responsibility and power in time of danger, should in 
 civil administration have but little power, and be in name only the " su- 
 preme executive magistrate." I think the framers of the constitution 
 meant that the governor should be in fact the chief magistrate, and as 
 such should have authority commensurate with his responsibihty ; and 
 this not for the purpose of giving him power, but of imposing upon him 
 responsibility and so retaining power in the people. To them he is 
 directly responsible for the exercise of his power, and he hardly begins 
 his duties before he is called upon to account to them. If he cannot 
 justify his acts, he deserves and receives their condemnation. 
 
 The council has its function in the executive government. The con- 
 stitution created it " for advising the governor," not for tying his hands, 
 not for dictating his appointments, nor for exercising coordinate and 
 equal power with him. It creates not ten but one " supreme executive 
 magistrate." The jurisdiction of the council was fully and ably discussed 
 in the constitutional convention of 1853. No one in that elaborate debate 
 claimed as part of its power the right to advise in cases of removals from 
 office. Its only powers, as there stated and claimed, were to advise and 
 consent to appointments, to advise in cases of pardon, to audit accounts, 
 and to act as the supreme returning board in the election of state officers. 
 These powers a majority of the convention deemed of sufficient impor- 
 tance to justify the continued existence of the council. 
 
 In appointments to office there may well be a confirming power. It 
 is approved by an experience of more than a century in national and state 
 government ; it affords an opportunity to correct mistakes, and to defeat 
 
 1 Lane vs. Commonwealth, 103 Pa. St. 481. 
 
THE GOVERNOR 7 
 
 any improper or personal influences governing an appointment ; but it 
 still leaves to the executive a field for selection practically unlimited. If 
 not abused and made a power to dictate, it does not infringe upon ex- 
 ecutive responsibility. Whether this power can better be exercised by 
 the senate, as in the national government and in many states, or by the 
 council, does not seem to me of the greatest importance ; nor does the 
 question whether the council itself shall remain or be abolished, although 
 in but three of our forty-four states is there an elected executive council. 
 But whether power to remove shall be shared by the council is of great 
 importance and vitally affects executive responsibility. This power is 
 necessary for proper executive control. If not intrusted to one alone, 
 either its efficiency is lost or greatly impaired by divided responsibility. 
 Such divided responsibility, or no responsibility, is the system of execu- 
 tive management established in this commonwealth wholly by statute law, 
 mostly of recent enactment. Experience has shown as practical results 
 of such a system : 
 
 First. That neither the governor nor the people through him have any 
 adequate power over the executive departments, of which he is the head, 
 but his power is practically limited to suggestions, advice, and appoint- 
 ments to fill vacancies. 
 
 Second. That over many of the departments and executive offices there 
 is no power of control in any one. 
 
 Third. That the power of removal and so of control usually requires 
 for its exercise a formal trial upon specific charges and proof of absolute 
 malfeasance in office. 
 
 Fourth. That an officer of an important public department, accused 
 of official misconduct which, in the opinion of the governor, requires his 
 removal, may remain in office without the confidence and against the will 
 of his executive chief. 
 
 Fifth. That a member of an important commission may hold his office 
 indefinitely after his term has expired, without appointment and without 
 the approval of the governor. 
 
 Sixth. That nominees of the governor, beyond criticism and objection, 
 may be refused confirmation, for the sole and declared purpose of hold- 
 ing in office men whose term of office has expired. 
 
 Seventh. That with the present limitations upon the power of removal, 
 the power to confirm can always be used for this purpose, and success- 
 fully in every case of an expired term. 
 
 I state these results of our present system not to discuss here execu- 
 tive action in any particular case, but because I believe all can agree, 
 whatever their opinion in such case, that a system which can produce 
 such results is without proper responsibility, and ought to be so changed 
 as to give to the chief executive power that shall fix upon him full ex- 
 ecutive responsibility. 
 
 I am confirmed in this opinion by the established and nearly unbroken 
 
8 AMERICAN STATE GOVERNMENT 
 
 practice in the national government for more than a century, by the full 
 recognition of this principle in modem municipal government, by its adop- 
 tion in the executive system of other states, and by its indorsement alike 
 by the student of government and by those who have had practical ex- 
 perience in its administration. The Constitution of the United States, 
 vesting in the President the executive power, gives to him the power of 
 appointment " by and with the advice and consent " of the Senate, and 
 is silent as to the power of removal. The same phrase and the same 
 silence are found in the constitution of our commonwealth. The first 
 Congress, in establishing executive departments, expressly conferred the 
 power of removal upon the President. In the debate upon that question, 
 Madison, one of the framers and expounders of the national Constitution, 
 declared its purpose as follows : " It is evidently the intention of the Con- 
 stitution that the first magistrate should be responsible for the executive 
 department. So far, therefore, as we do not make the officers who are 
 to aid him in the duties of that department responsible to him, he is not 
 responsible to his country." The act conferring this power was carried 
 in the Senate by the casting vote of Vice President Adams, who gave at 
 length his reasons for his vote. Speaking of these, his grandson, Charles 
 Francis Adams, writes : " These reasons were not committed to paper, 
 and can therefore never be known ; but in their soundness it is certain 
 that he never had the shadow of a doubt. His decision settled the ques- 
 tion of the constitutional power in favor of the President, and conse- 
 quently established the practice for the country which has continued down 
 to this day." He adds : "All have agreed that no single act of the first 
 Congress has been attended with more important effects upon the work- 
 ing of every part of the government." 
 
 The policy thus established remained unchanged down to 1867, and 
 gave to the President unlimited power, directly or indirectly, to remove 
 all subordinate officers, now numbering more than one hundred and 
 twenty thousand. In that year, owing to a conflict between the Presi- 
 dent and Congress, an attempt was made to restrict his power by the 
 passage of an act of doubtful constitutionality, requiring the consent of 
 the Senate to removals from office. That act was greatly modified dur- 
 ing the next administration, and was finally repealed in 1887, after it had 
 long ceased to have any active operation. I do not believe that the 
 people would now permit the hands of their President to be tied, and ex- 
 ecutive responsibility to be divided and lost between him and the Senate. 
 
 The same principle has been successfully applied to municipal gov- 
 ernment and is strongly indorsed by municipal administrators. I have 
 already quoted the well-known views of ex-Mayor Low of Brooklyn to 
 this effect. Equally emphatic is the opinion of ex-Mayor Hart of Boston, 
 who says, in a recent publication : "It is not certain that the mayor 
 should have absolute power of appointing his subordinates or any other 
 public officers. The power of removal should be vested in the mayor," 
 
THE GOVERNOR 9 
 
 An able commission appointed in Pennsylvania in 1878 to devise a plan 
 for city government, reporting in favor of this principle, said : 
 
 It is self-evident that the affairs of government cannot be well conducted 
 unless there is an executive head upon whom responsibility therefor is imposed. 
 It is equally clear that such responsibility cannot be exacted without the grant 
 of corresponding power. ... It may be said that it is dangerous to clothe him 
 with so much authority. The answer is that such power must be lodged some- 
 where if good government is to be attained, and wherever placed it is essen- 
 tially executive in its nature. The mayor is the chief executive of the city, and 
 therefore he is the proper officer to exercise it. Without it there can be no 
 efficiency in the performance of his duties. 
 
 In the great cities of the country this principle has been fully estab- 
 lished as essential for a responsible and efficient system of government. 
 Its soundness has been repeatedly recognized by the legislature in this 
 commonwealth in its later treatment of municipal charters, notably in the 
 case of the city of Boston. The principle thus accepted as proper in the 
 executive government of nation and city prevails in the executive depart- 
 ments of many of our sister states, which vest the removing power in the 
 governor alone. If undivided responsibility is essential for proper gov- 
 ernment in nation, city, and other states, why is it not wise to place such 
 responsibility also upon the governor of our commonwealth ? If the prin- 
 ciple is sound, it obviously applies to all executive power. I believe that 
 it has been thoroughly tested and has proved to be sound, and that it 
 best secures what Mr. Webster felicitously called " the people's govern- 
 ment, made for the people, made by the people, and answerable to the 
 people." Three hundred or more subordinate public officers, now under 
 divided control or none, would thus be made directly responsible to the 
 chief executive, and he, by the constitution, is directly and immediately 
 responsible to the sovereign people. These administrative officers, with 
 few exceptions, exercise their jurisdiction over the whole commonwealth. 
 They should be responsible to a representative of the whole common- 
 wealth, and not to a body each of whose members represents and is re- 
 sponsible to only a local constituency. I therefore earnestly commend to 
 your favorable consideration such legislation as will give the power to 
 remove all these administrative officers, for cause stated to the governor, 
 leaving to the council the power of confirmation of his appointments. 
 
 In making this recommendation my criticism is of a system and not 
 of officials. I recognize the abUity and fidelity which our public servants, 
 with few exceptions, have given to their commonwealth. Especially do 
 I appreciate the unselfish, patriotic labor freely given her by noble men 
 and women in her great work of education, charity, and reform, and for 
 the health, safety, and prosperity of her people. This recommendation is 
 without personal or selfish motive, and simply in the interest of efficient 
 and responsible government. The record of my administration is proof 
 of this fact. Of the few executive officers wholly under the control of the 
 
lO AMERICAN STATE GOVERNMENT 
 
 governor, not one has been removed during my year of service except 
 the gypsy-moth commissioners, and they for admitted cause. Of the 
 many others whose terms have expired, a very large majority, though 
 not of my political faith, have been reappointed. It is far easier and 
 more agreeable for a public officer to have less rather than greater re- 
 sponsibility, and the exercise of power over offices is the most irksome 
 part of executive duty. Such power, I repeat, " makes any man conserv- 
 ative ; its selfish use for patronage only is fortunately sure to be both 
 disagreeable and destructive." I am confident that you will receive this 
 recommendation in the spirit in which it is offered, and, seeking only the 
 public good, wiU give to it your careful consideration. 
 
 FOLK AS GOVERNOR 1 
 
 By William Allen White 
 
 As soon as he was inaugurated Folk summoned the political attorneys 
 of the railroads, whose business it was to bribe legislators, and told 
 them that he proposed to enforce the antipass law, which had been a 
 dead letter on the Missouri statutes for nearly forty years. This law 
 prohibits railroads from giving passes to legislators, or state officers, or 
 state employees. By violating this law the political attorneys of the 
 railroads have been able to prevent any railroad legislation fair to the 
 shippers ; and, more than that, have been able to direct other legislation 
 so closely that in times past other governors of Missouri have sent for 
 these same attorneys and have begged them to allow a decent law to 
 pass, so that its failure might not embarrass the party 1 This situation is 
 common in American states I But Folk, having a reputation as a pro- 
 ducer of indictments, spoke with some point and emphasis when he 
 said that if passes were sent to the legislators, he would not bother with 
 the legislators, but would see that indictments were brought against the 
 offending attorneys of the railroads I Also he told them to keep away 
 from the capital during legislative session. He announced that if Bill 
 Phelps — one of the most notorious of the railroad lobbyists — hung 
 around Jefferson City during the session of the legislature, something 
 important would happen. And when Mr. Phelps had a few hours of 
 private business in Jefferson City he reported to the governor upon 
 arrival and told him when he would leave, and explained what he would 
 be doing while he stayed. It was Bill Phelps who said of Senator 
 Stone of Missouri : " Stone sucks eggs as I do, but he hides the 
 shells." Phelps is not ashamed of his calling, and only buys when he 
 deems it necessary. He intimates that Stone adds hypocrisy to his other 
 shortcomings. 
 
 1 From McClure^s Magazine^ December, 1905. 
 
THE GOVERNOR II 
 
 While Folk was conferring with the railroad representatives he told 
 them that if they would stay away from the capital and call off Phelps, 
 they might have his help to defeat any unfair measure proposed in the 
 legislature, and he was as good as his word. Half a dozen unfair rail- 
 road bills were passed and were promptly vetoed by the governor. But 
 while the unfair bills were killed by the governor, he gave his support to 
 the needed railroad legislation, and for the first time since 1873 a law 
 was passed by the Missouri legislature regulating freight rates in the 
 state. A law was passed prohibiting railroad employers from working 
 their employees more than sixteen hours at a time on freight runs ; 
 another law was enacted requiring corporations to give employees quit- 
 ting their service a letter stating the reason the employees were dis- 
 charged, thus eliminating the black list; a fair demurrage-charge law 
 was put on the books, and railroads were compelled to stop at stations 
 when ordered to do so by the railroad commissioners. A damage act 
 became a law, authorizing suit for damages resulting from the death of 
 an unmarried adult, and increasing the amount which may be recovered 
 from $5000 to $10,000. Heretofore there had been no right of action 
 for the negligent death of an adult unmarried person. The railroads 
 have always succeeded in killing off legislation of this kind ; the long- 
 hoped-for law permitting plaintiffs to sue the original and connecting 
 carriers who injure shippers by delays or otherwise was passed ; as also 
 was the law authorizing the railroad commissioners to compel the 
 establishment of freight depots at junction points, when the commis- 
 sioners decide that it is just. " Railroads " were legally defined to in- 
 clude street railways, and private-car companies were made subject to 
 taxation. The work of men in smelters and reduction works was limited 
 to eight hours. A compulsory educational law was passed. At different 
 times, for many years, state platforms of both parties had promised 
 these laws and the people desired them, but the reign of the railroad 
 attorneys in Jefferson City had prevented such legislation. Government 
 by corporation was overthrown by Governor Folk and government by 
 the people reestablished, simply through the enforcement of existing 
 laws. The antipass law had been in the hands of every governor of 
 Missouri for a generation, but as nearly all of those governors had been 
 elected by railroad influence, they were afraid to use the club in their 
 hand and be loyal to the people who paid the taxes. 
 
 Among other laws passed by the Missouri legislature, which had the 
 active opposition of the corporations at long range, was the law prohibit- 
 ing race-track gambling and making it a felony. The St. Louis race 
 track, known as the Delmar track, was one of the most active gambling 
 places in the country, and the telegraph companies sent the reports of 
 the Delmar races all over the land, turning a pretty penny thereby. 
 The track was outside the corporation of St. Louis, in St. Louis County, 
 where the governor seemed to have no power to enforce the law. The 
 
12 AMERICAN STATE GOVERNMENT 
 
 Delmar people kept on racing and gambling. Local sentiment in St. 
 Louis County was with them, and naturally the local officers were in 
 sympathy with the gamblers, and they prepared to invite all Missouri to 
 laugh at its overzealous governor. Folk allowed their violations of the 
 law to become so flagrant that the whole state understood the situation. 
 He made it clear to the people that it was their law and not his which 
 was broken, and thus, having aroused the state, he had public sentiment 
 behind him, and he went after the gamblers. He planned his fight as a 
 chess player lays out his game. He was told he could do nothing. 
 Lawyers very generally agreed that the governor had no power; but 
 Folk determined for himself that it was not only his right but his duty 
 to stop organized crime anywhere in the state. If there should be a 
 question as to his right to use the police outside of the city which hired 
 them, he held that those engaged in the commission of felonies could 
 not legally complain. No rights of theirs would be violated by police 
 interference. 
 
 The gamblers expected him to call out the state militia, and were 
 prepared to impeach the governor for sending the militia where the 
 local officers had not asked for it. But one day a squad of St. Louis 
 policemen appeared at the gates of the Delmar track and asked for 
 admission, and, being refused, departed. That was all. The next day 
 they appeared, asked for admission, and, being refused, walked in. 
 They made no arrests, but stood around, and left when the races were 
 over. The next day the same squad of policemen appeared at the gates, 
 marched in, and at the proper time arrested the bookmakers. Then 
 Folk's intimate knowledge of human nature came into play. Book- 
 makers are proud men, and are prone to glory in their impudence and 
 their superiority to the law. So the Delmar gentry were loaded into an 
 open patrol wagon, and, instead of being driven quickly and in a surrep- 
 titious manner to their destination, were driven at a dead walk six miles 
 through the heart of the city to the police station, surrounded by a hoot- 
 ing, jibing crowd of scornful citizens. When the crowd grew tired and 
 threatened to dissolve, the drivers of the patrol wagon, following instruc- 
 tions, slowed up or stopped to let the crowd regather and jeer the law 
 breakers. The next day, when it was rumored that there would be a 
 big raid and that the track frequenters would be haled into court, the 
 gates of the Delmar track were closed, and have been ever since. A 
 notice was posted on the Delmar gate that owing to the arbitrary action 
 of the police the races would discontinue. The owners of the Delmar 
 track represented great wealth and much political power in Missouri. 
 They complained bitterly that the law did not permit the governor to 
 use the police in stopping felonious violations of the law, but neverthe- 
 less they quit. The horses are gone, the bookmakers have fled, and 
 gambling upon the results of the St. Louis races has ceased all over the 
 United States. More than that, as one of the indirect results of this 
 
THE GOVERNOR 1 3 
 
 lesson, the Western Union directors have decided to take their wires out 
 of all race-track stations, and receive only such gambling news as is 
 brought to them. The company will not be the partners of touts. 
 The gamblers went before the state supreme court, asking that body 
 to dissolve the temporary injunction secured by the chief of police of 
 St. Louis to prevent the sheiiff of St. Louis County from arresting 
 the St. Louis policemen who appeared at the race track to enforce 
 the law. 
 
 As soon as the legislature adjourned and left his hands free. Governor 
 Folk set about to enforce the Sunday closing law, which has been in 
 the Missouri statutes forty years unamended. He has control of the 
 police boards in three first-class cities in Missouri, — Kansas City, St. 
 Joseph, and St. Louis, — and also the control of the excise commissioners 
 there, who have absolute power to revoke a saloonman's license at will. 
 The supreme court had decided that the Sunday closing law was in- 
 operative against every business except the saloon, and the saloon men 
 could not compel other stores and shops to close because the saloons 
 were shut up. That weapon was denied them. And when the order 
 came to close at midnight Saturday they closed. The first Sunday a 
 throng of drunken men and women crowded the St. Louis bridge, com- 
 ing and going to Illinois, where liquor could be bought. The second 
 Sunday the saloons closed. Then, after the custom in such cases, a few 
 of them opened their back doors. Their licenses were promptly revoked 
 by the excise commissioner. The throng on the St. Louis bridge was 
 not so large that Sunday. The third Sunday- — which is the Sunday 
 when Sunday closing spasms generally cease — a few more back doors 
 opened, and Monday morning the keepers of those places lost their 
 licenses. There were a few convictions also in court of violations of the 
 law. The crowd on the bridge was gone. The people were getting used 
 to the law. And from that time on, St. Louis, Kansas City, and St. 
 Joseph saloons have been closed on Sunday, and the excise law has 
 been observed as well as the law against larceny or against murder. 
 And the German-American population of St. Louis, which is supposed 
 to be particularly obstinate in its demand for beer, law or no law, is 
 larger in St. Louis than in any American city of its size. The German- 
 Americans are there obeying and upholding the law. The story that 
 they are lawbreakers is a saloon keeper's scarecrow to frighten weak- 
 kneed politicians. Outside of St. Louis, in St. Louis County, where the 
 amusement parks are located, the governor's display of policemen at the 
 Delmar race track put the fear of the law into the saloon keepers and 
 restaurant men so completely that the law is observed there strictly. 
 The hotel bars and all drinking places are closed on Sunday in the first- 
 class cities of Missouri for the first time in the history of the state. And 
 to-day Missouri is probably the only state in the Union without a dead- 
 letter law on its statute books. 
 
14 AMERICAN STATE GOVERNMENT 
 
 And this is how it has paid: Since the election of Folk as circuit 
 attorney of St. Louis the value of land in the state has increased 20 per 
 cent. The annual immigration to the state has increased 25 per cent. 
 The railroads announce that after a summer of Sunday closing the 
 Sunday excursions into the three first-class cities of the state have m- 
 creased nearly 10 per cent, showing that it pays to cater to the sober 
 and industrious rather than to the lawless. The Sunday business of the 
 local street cars has increased 25 per cent, and the Monday deposits in 
 the banks of the cities have increased remarkably ; whUe the number 
 of arrests in the three cities, where statistics are available, has decreased 
 20 per cent and the Sunday arrests have diminished 40 per cent. More 
 than this, the trade of the grocers and small merchants has increased so 
 materially that they are making a sentiment for Sunday closing strong 
 enough to maintain it when Folk leaves the governor's office at the end 
 of his term in 1909. Similarly, the commercial clubs and business men's 
 clubs in the Missouri cities have generally indorsed the enforcement of 
 the antigambling law, on the ground that clerks and employees are no 
 longer tempted to tap tills and gamble. A wholesome sentiment for the 
 enforcement of law, as the sensible business thing, is growing up all 
 over Missouri. It has its mainspring in the religious morality of the gov- 
 ernor in his attitude toward his official duty, and it is appearing among 
 citizens, not as a moral principle, but as a business conviction. It is 
 making itself felt practically in politics, and the Republican state offi- 
 cials, who in any other state and under any other conditions might feel 
 that party policy required them to hinder rather than help a Democratic 
 governor, are doing all they can to help him. Attorney-General Hadley, 
 a young Republican of the new school of politics, has been standing 
 shoulder to shoulder with Folk in every important fight, and he deserves 
 the highest praise for the way he has risen above partisan bias and has 
 become a faithful servant of all the people. But for Hadley's sense and 
 loyalty Folk might have been badly crippled. 
 
 EXECUTIVE USURPATION! 
 
 In his address at Columbia University Governor Hughes expressed 
 surprise that he had been accused of " executive usurpation." He de- 
 scribed, with perfect truth, his own course as that of a governor who had 
 endeavored to ascertain what was best for the state, and then had pub- 
 licly uttered his convictions, inviting and accepting the support of public 
 sentiment. He added that his determination had been to have all these 
 questions of important public policy discussed on their merits, with every- 
 thmg " regarded in the light of reason." By that he plainly meant that 
 
 1 From the Nation, June 20, 1907. Reproduced by permission. 
 
THE GOVERNOR 
 
 15 
 
 he had not sought to impose his will by the use of patronage or by 
 entering into political bargains. Granting his clear and open purpose, • 
 and looking at the results achieved, it cannot be denied that he makes 
 out a plausible case for his contention that what we have had at Albany 
 this year has been not " government by executive usurpation " but "gov- 
 ernment by public opinion after discussion." 
 
 Pure theory is, of course, against the governor. In any strict view of 
 the " division of powers " room cannot be found for such activities as his 
 in directing the course of legislation. No definition of the office of gov- 
 ernor, no written grant of power to the executive, contemplates a course 
 like that of Governor Hughes or of President Roosevelt. It may well be 
 doubted, however, if we have ever applied pure theory to the conduct of 
 government in this country. If we had, we should not have been the 
 sons of our sires. It is the merit and even glory of Anglo-Saxon political 
 institutions that they are not neatiy logical nor nicely consistent. Bagehot 
 thanked Heaven that Englishmen were not politically lucid, and Americans 
 come in for their share of that ascription of praise. Forcible executives 
 have always made their native vigor felt, despite forms and precedents. 
 Hughes is not so imperious a governor of New York as was Clinton ; 
 nor have the exploits of the Big Stick yet rivaled those of Old Hickory. 
 Emerson pointed out the law of character, going deeper than any rule 
 of politics, that a man of inherent capacity and springing virility can do 
 his work easily even when apparently fettered by the oldest and mold- 
 iest conventions. They give way to his touch of strength. 
 
 Many causes seem lately to have been operative in making democra- 
 cies more tolerant of the exaltation of the executive, or even eagerly 
 welcoming it. Mr. Bryce referred to one of them in his remarks last week 
 at Chicago on democratic tendencies. People are more and more com- 
 ing to look to leaders. This does not necessarily mean the abdication of 
 individual judgment. Least of all does it signify a hankering for a dicta- 
 tor or despot. Before the elections of 1849 in France an intelligent 
 Frenchman told Nassau Senior that many farmers and peasants, and 
 especially women, were saying : " We are tired of these assemblies. // 
 nous faut un mattre." It was a clear sign that Louis Napoleon was 
 coming. But it is in nothing of that spirit of abasement that modem 
 democracies are craving strong leadership. They do not want a master ; 
 they are seeking, rather, a powerful servant. What they desire is the 
 emergence of some man who will both interpret and guide the popular 
 will, and, by use of the powers of influential office, get that will written 
 into law or translated into action. It does not matter greatly what the 
 office happens to be called. The desired leader may show himself as 
 mayor or district attorney, as governor or president ; less often, as rep- 
 resentative or senator. The essential thing is that, once the commanding 
 quality is shown and the great public work set going, the people are 
 certain to rise to the leadership. 
 
1 6 AMERICAN STATE GOVERNMENT 
 
 There are obvious reasons why these outstanding men should nowa- 
 days so frequently be executives. The very mass of men in legislatures 
 and Congress makes differentiation hard. Only the exceptional members 
 show their heads above their fellows. Constituencies seem more and 
 more inclined to be content with the services of their immediate repre- 
 sentatives in the way of "looking after the deestricts," being reasonably 
 honest, and voting as they should on the large questions. But for initia- 
 tive and large inspiration they are now accustomed to search elsewhere. 
 And one unquestioned function of executives gives them a great oppor- 
 tunity to catch the eye of the public. They have an unchallenged right, 
 as Governor Hughes said, to " state their convictions," implying the rec- 
 ommendation of laws. Now this privilege, or duty, in the present state of 
 affairs goes, as if made for it, with the peculiar enlargement of executive 
 powers which we are seeing in our day. It enables a vigorous and clear- 
 headed governor or president to make himself an advocate with the 
 people, at the same time that he sees to the execution of the laws, and to 
 put himself at the head of movements to secure new laws. In a sense 
 this is an executive intrusion upon the province of lawmakers, but must 
 a citizen be dumb simply because he is governor ? Having been chosen 
 directly by the people to the highest office within their gift, shall he be 
 debarred from saying what he thinks to be for the good of the people ? 
 We see how great are the possibilities of that conceded power of the ex- 
 ecutive to " state his views " and urge them upon legislature or Congress. 
 
 If any man can draw a hard-and-fast line in these matters of executive 
 usurpation, we should like to meet him. On second thought we should 
 not like to meet him, for he would certainly be a pedant and a bore. The 
 only reaUy satisfying distinction, for the individual critic, that we ever 
 heard of is that of the old gentleman at Washington who said that he 
 liked to have the President interfere in behalf of what he himself wanted, 
 but was ready to have impeachment proceedings begun when the President 
 took the other side. In our hearts most of us come pretty near that 
 position. There is, however, one sharp division that can be made. A 
 governor may impose his will upon the legislature as Hill did, or Odell 
 did, that is, by appeal to corrupt motives, either personal or political. 
 That sort of usurpation is always to be condemned, not because it is 
 usurpation, but because it is corruption. Between that and the method 
 which Governor Hughes has followed there is all the difference of night 
 and day. 
 
THE GOVERNOR 17 
 
 GOVERNORS AND LEGISLATURES ^ 
 
 To the Editor of the Evening Post: 
 
 Sir: It is doubtful whether there has been, since the Civil War, any 
 event of virider political significance or of more radiant promise than the 
 renomination and reelection of Governor Hughes. An editorial from 
 your paper of September 16 is before me, and states the case so per- 
 fectly that I will venture to quote one or two sentences : 
 
 Governor Hughes has discharged his duties with an eye single to the 
 welfare of the state. ... In the case of Kelsey he convincingly demonstrated 
 his inflexible devotion to principle. He would not sacrifice it to immediate 
 ends. . . . He has beaten the corruptionists and forced the legislature to recog- 
 nize in himself the people's will. 
 
 The lesson here drawn is as to the power of personality and what a 
 potent instrument it is, when embodying high moral principles, for 
 arousing the mass of the people, when the principles by themselves 
 would be inadequate ; and secondly, as to what a splendid population it 
 is that can be so aroused. For one, I firmly believe that the great 
 majority of the people of the whole United States could be reached in 
 the same way if proper means were employed. 
 
 But with the profoundest admiration and respect for Governor Hughes, 
 it seems a duty, with an eye to the future of this country and of democ- 
 racy through the world, to examine more closely the extent of his 
 achievements. It must be confessed that these are limited to details 
 and do not cover methods. He has beaten the machine, but he has not 
 reached the machinery. He has shown how bad men can be check- 
 mated, but he has not shown how they can be replaced by good ones. 
 If he had retired at the end of this term as he proposed to do, the 
 waters would have closed after him and the old system would have 
 returned. If he does so after another term, or by an election to the 
 presidency, without having widened his range, he will leave only a 
 memory and a name. 
 
 To develop these ideas it will be necessary to take a wider view. In 
 all the state constitutions practically the whole of government is given 
 to the legislatures. The executive has hardly a shadow of real power. 
 Now if there is one lesson which modern history teaches, it is that a 
 legislature cannot govern. The Long Parliament tried it in England in 
 the seventeenth century, probably as good a body of men as could be 
 found in the country. Yet within ten years Cromwell turned them out 
 of doors and established a military despotism. In the eighteenth century 
 the French Legislative Assembly, after beheading also their king, tried 
 to govern. The evidence seems to show that the first gathering was of 
 as good men as France could furnish. Napoleon came exactly like 
 
 1 From the Evening Post, New York, November, 1908. Reproduced by permission. 
 
1 8 AMERICAN STATE GOVERNMENT 
 
 Cromwell, turned them out of doors, and attempted the conquest of 
 Europe. Madison has left many wise sayings, but none more prescient 
 than when, in the convention of 1787 (just before the outbreak of the 
 first French Revolution), he declared that 
 
 Experience proves a tendency in all our governments to throw all power 
 into the legislative vortex. The executives of the states are little more than 
 ciphers. The legislatures are omnipotent. If no effectual check be devised 
 on the encroachments of the latter, a revolution will be inevitable. 
 
 The result has been postponed by the greatest material prosperity 
 ever known in the world, but dark clouds are already gathering on the 
 horizon. 
 
 Consider how our legislatures try to govern. When they meet in ses- 
 sion there are two houses in each state, varying from fifty to three hun- 
 dred men, all representing different districts and all precisely equal. There 
 is nobody there representing the state as a whole or the state administra- 
 tion. The only duty of each member is to get all he can for his constitu- 
 ents, and he would be regarded as impertinent if he interfered with the 
 schemes of any of the others. Every member can propose as many 
 measures as he pleases upon any subject he pleases, and they are all 
 thrown on an equal footing into a number of committees made up by 
 the Speaker, who is elected for that purpose, at his discretion ; while 
 the legislature, with little discussion, passes what the committees recom- 
 mend. It is an ideal system for corruption. It was the origin of the 
 lobby, that is, a power which, by corrupt methods, can induce a mass of 
 conflicting atoms to act together for private ends ; and out of the lobby 
 is involved the boss. What the government of the state is, that will be 
 the government of the cities. 
 
 Reform of the state government must be the work of the governor. 
 The object of the legislature is to maintain things as they are, to keep 
 the governor in subjection, and the people in ignorance. It is curious to 
 note how reform candidates for governor are springing up all over the 
 country, and how promptly the people respond by their election, — another 
 testimony to the merits of universal suffrage. But they do not know 
 what to do, and so after one or two terms they pass on to obscurity 
 and oblivion. 
 
 Here, then, is work for Governor Hughes, and there is not in the 
 world a more splendid opportunity. I have always hoped that this 
 honor was reserved for Massachusetts, but am ready to welcome it 
 anywhere. 
 
 Entering upon the governorship in his first term, Governor Hughes 
 took an early step in this direction. He ordered the governor's private 
 room to be closed, and received all callers in the public hall, with specta- 
 tors present. It is this, probably, which saved him from private importu- 
 mties, which he might have been wholly unable to resist. Why should 
 
THE GOVERNOR 1 9 
 
 he not take the next step? Instead of traveling about the state and 
 demeaning his office by speaking at local clubs and dinners, why should 
 he not demand the opportunity to address the people as a whole in the 
 only place where that is possible ? The governor alone represents the 
 whole state, all of the people, and the whole administration. Why should 
 he not have the right of speech in open legislature, accompanied by the 
 responsibility which would offset any danger in giving him increased 
 power ? Only because the private interests in the legislature do not want 
 him there and will not listen to any proposal tending towards it. Of 
 course he would need very shortly to be accompanied by heads of 
 departments, but that would be of little use while these are separately 
 elected. One of his first moves would be to show the necessity of their 
 appointment by the governor with its condensation of responsibility. 
 It is this public contact of executive and legislature which is the key- 
 note of all political reform throughout the United States. In February, 
 1 88 1, a committee of eight members of the United States Senate unani- 
 mously recommended it in the case of members of the cabinet, but it is 
 characteristic of the legislature that this has never since received the 
 slightest attention. 
 
 Space will not permit further discussion now, but it offers the only 
 means of averting the revolution predicted by Madison, and the disas- 
 trous advent of pacificators like Cromwell and Napoleon. 
 
 If Governor Hughes could be induced to use for this purpose the 
 great influence which he has acquired with the people of New York, and 
 thus set an example to the other forty-five states, he would confer the 
 greatest benefit upon the country of any man since Washington and 
 
 Lincoln, — names of what a different import I 
 
 G. Bradford 
 Boston, November 11 
 
 THE PARDONING POWERS 
 
 By Honorable John N. Henderson" 
 
 The pardoning power is a prerogative of sovereignty, and in England, 
 from time immemorial, it has belonged to the crown. In this country, 
 in all federal matters, the President of the United States holds the par- 
 doning power, except in cases of impeachment. By the constitutions of 
 most of the states the pardoning power is lodged with the respective 
 governors thereof. In a few, however, as in New Jersey, Nevada, Penn- 
 sylvania and Vermont, the power to grant pardons is vested in boards, 
 consisting of the governor and some of the heads of departments. In the 
 majority of those states where the sole power is vested in the governor, 
 
 1 A paper read before the Texas Bar Association, 1903. 
 
 2 Justice of the Court of Criminal Appeals of Texas. 
 
20 AMERICAN STATE GOVERNMENT 
 
 the law provides them with advisory boards, who investigate cases 
 and make report of their conclusions to the executive. As a general 
 proposition a pardon is a mere act of grace, and is not founded on any 
 preliminary steps that furnish legal merits or a legal title [Com. vs. Hol- 
 loway, 24 Pa. St. 210). In such cases the governor exercises the 
 authority to grant a pardon of his own sweet will. This pardon may be 
 either absolute or conditional, and the condition may be precedent or sub- 
 sequent. If it be precedent, the pardon does not take effect until the 
 performance of the condition. If it is subsequent, the happening of the 
 contingency may avoid the pardon, and in such event the convict may 
 be remanded to the penitentiary (Ex parte Wells, 18 How. (U. S.), 307 ; 
 The State vs. Barnes (S. E.), 10 S. E. in ; Ex parte Kennedy, 135 
 Mass. 48 ; Carr vs. The State, 19 Texas Cr. 635). In the greater num- 
 ber of American states, while the authority is complete in the governor 
 under the constitution, yet the legislature has regulated the exercise of 
 this power by certain rules, such as publicity of the application, notifica- 
 tion to the county authorities where the conviction took place, and a 
 public hearing ; and pardon boards are authorized to hear evidence and 
 argument. And in nearly all the states, after the pardon has been granted 
 by the governor, the same, together with the reasons therefor, is required 
 to be reported by him to the next ensuing legislature. 
 
 In our own state the pardoning power is conferred on the governor by 
 Article 4, Section 2, of the constitution, and the essential portions thereof 
 are as follows : 
 
 In all criminal cases, except treason and impeachment, he [the governor] shall 
 have power, after conviction, to grant reprieves, commutations of punishments, 
 pardons . . . provided that in all cases ... of the commutation of punishment or 
 pardons, he [the governor] shall file in the office of the Secretary of State his 
 reasons therefor. 
 
 Prior to 1893 the onus of investigating all applications for pardon devolved 
 on the governor himself, which he usually did through his private secretary 
 or some officer in his department. But during Governor Hogg's first 
 administration a Board of Pardons was provided by the legislature in 
 language substantially as follows : 
 
 The governor is hereby authorized to call to his aid for a time not exceeding 
 one hundred days per annum two qualified voters of this state, who shall perform 
 such duties as may be directed by him consistent with the constitution, as he 
 may deem necessary in disposing of all applications for pardon (Rev. Stats., 
 Art. 3582a). 
 
 Subsequently, during the administration of Governor Culbertson, at 
 his suggestion, this act was amended by the twenty-fifth legislature (see 
 laws, p. 49). However, the only amendment consisted in increasing the 
 working time of said Board of Pardons to three hundred days instead 
 of one hundred. This is all the law we have on the subject. But it has 
 
THE GOVERNOR 21 
 
 evidently afforded the basis for a great number of pardons, as during 
 Governor Hogg's administration lie averaged something over one hundred 
 a year, while the number during Governor Culbertson's two adminis- 
 trations reached over eight hundred. He explains this, however, in 
 one of his messages, by stating that the legislature had increased the 
 working days of the Board of Pardons from one hundred to three 
 hundred days. 
 
 Inasmuch as the administration of Governor Sayers furnishes the last 
 data, and indicates in full the workings of the present system, I quote 
 from that as follows : 
 
 During the years 1899, 1900, 1901, 1902, and part of January, 1903, 
 
 the governor pardoned in felony cases . . 763 
 
 During the same time he pardoned in misdemeanor cases . .282 
 
 During the years 1 899-1 900 there were convicted in all the courts 
 
 for felonies .... 3702 
 
 During the years 1901-1902 there were convicted in all the courts 
 
 for felonies ... 3236 
 
 Making a total for the four years of ... . . 6938 
 
 Making number of felony convictions per year 1 734 
 
 During the year 1899 the Court of Criminal Appeals affirmed in 
 
 felony cases . . ... . . . . 211 
 
 During the year 1900 the Court of Criminal Appeals affirmed in 
 
 felony cases ... . . 169 
 
 During the year 1901 the Court of Criminal Appeals affirmed in 
 
 felony cases .... . • ■ ■ 161 
 
 During the year 1902 the Court of Criminal Appeals affirmed in 
 
 felony cases . . . • ■ 1 54 
 
 Making a total for the four years of . . . . . 695 
 
 During the years 1 899-1 900 the governor pardoned in affirmed 
 
 felonies .... . ' ' ' 
 
 During the years 1901 and 1902 and part of January, 1903, he par- 
 doned in affirmed felonies '3° 
 
 Making a total of . . . • 241 
 
 Of these, for murder in the first degree, there were . . 42 
 
 For murder in the second degree . • • ■ "S 
 
 For assault with intent to murder . . 9 
 
 For rape ' ^ 
 
 For robbery ' ^ 
 
 For thefts and receiving stolen goods ' f^ 
 
 All other felonies °° 
 
 241 
 
 From the above table it will be seen that for each of said four years the 
 governor pardoned nearly one tenth of all convicted felons. It wUl also 
 
2 2 AMERICAN STATE GOVERNMENT 
 
 be observed, for said four years, that of those who prosecuted their cases 
 to the court of last resort and whose cases were affirmed there were 
 pardoned by the governor on an average sixty cases a year, or about 
 one third of the affirmed felony cases. 
 
 The report I have before me does not show that any of the two hun- 
 dred and forty-one convicts who were pardoned during said four years 
 were pardoned for the purpose merely of restoring their citizenship. If 
 these be estimated at one fourth of the entire number pardoned, which 
 I think reasonable, it will leave as a result forty-fiva affirmed felons, who 
 were the actual beneficiaries of executive clemency during each of said 
 years. That is, more than one fourth of all felons whose cases were af- 
 firmed by the Court of Criminal Appeals received full pardon, not only 
 restoring citizenship but remitting the penalties against them. 
 
 From this statement it is manifest that the exercise of the pardoning 
 power has become quite an industry in this state, constantly augmenting 
 with increase of population, and as that grows apace our prison population 
 must continue to enhance. Now, with an estimated population in the neigh- 
 borhood of three and one-half millions, the courts empty every year into the 
 penitentiaries something like eighteen hundred convicts, while each year 
 about that number is turned adrift to be scattered among our people. 
 
 It is, therefore, not too much to say that the present condition of things 
 should serve to arrest the attention of every thoughtful citizen ; and the 
 subject of penology, as applied to our prison population, and the relation- 
 ship of the pardoning power thereto, becomes a matter of grave importance. 
 
 Edmund Burke has said " that the whole function of government is 
 to bring twelve men into the jury box, in order that they preserve the 
 peace of society." If this be true, and under our system of civilization we 
 have adopted, as a means of preserving the peace, the restraining power 
 of government as against those who would disturb it, we should see to 
 it that this power of restraint is properly carried out, and whatever 
 means we have adopted should be guaranteed according to some fixed 
 rules, which are calculated to enforce the edicts of the courts, which are 
 intended for the preservation of society. While the prerogative of the 
 governor, under the merciful dispensation of the constitution, should be 
 preserved in its integrity, still this should be regulated by law, so as to 
 be a quasi-judicial power. In what has been said no fault is to be found 
 with the distinguished gentiemen who have adorned the governor's chair 
 (for all of whom we entertain the greatest honor and respect) ; but the 
 evil is in the system which enables influential criminals and their friends 
 to invoke his clemency and influence his judgment upon unworthy sub- 
 jects, by appealing, in season and out of season, to his better nature. 
 Under present conditions, with so many problems continually pressing 
 upon the executive for solution, he has but litde time to devote to the 
 matter of pardons ; consequently he has to trust much to others, for the 
 most part political friends, whom he feels he has a right to trust. Under 
 
THE GOVERNOR 23 
 
 such circumstances, while he is perfectly aware that the pardoning power 
 is not a matter of patronage, he is very liable to be unconsciously misled 
 and deceived, more especially as his humanity is appealed to ; and in his 
 anxiety not to disappoint friends or to appear stolid and indifferent to the 
 pleadings of mercy, he may, for the time, be too prone to forget that 
 larger interest which the pubhc sustain, and which depends on the enforce- 
 ment of law as administered through the courts. Under the stress of 
 importunity, no doubt, governors of this state in the past, responding to 
 a humanitarian sentiment, have used the pardoning power as a mere 
 perquisite, — an act of grace on their part, unconsciously, it is true, but 
 still bearing its baneful effects to the body politic. Those of us who pre- 
 tend to any knowledge of the science of penology or the philosophy of 
 punishment know full well that when an influential criminal (by this is 
 meant one who is able to employ the best of counsel) is brought before 
 the courts and is tried by a jury of his peers and is convicted, and the 
 judge refuses him a new trial, he must, as a general proposition, be con- 
 ceded to be guilty of the offense charged against him. If beyond this he 
 has prosecuted an appeal, and the state, notwithstanding all the technical- 
 ities and knotty intricacies of the law, succeeds in the court of last resort 
 in securing an affirmance of the sentence, he could scarcely be regarded 
 afterwards as an innocent man, the victim of unfairness. On the con- 
 trary, as a general rule, we know that his sentence is much lighter than 
 he deserves. However, in such case, the law has been put to a supreme 
 test, and is in a measure vindicated. But what must be the feelings of 
 that community, after the law has thus triumphed, to see the felon, before 
 he has even darkened the doors of the penitentiary, suddenly, without 
 warning, turned loose amongst them, through the pardoning power. No 
 prosecuting officer in this state but knows that in bringing an influential 
 criminal to punishment he must have in full measure the moral support 
 of the community, and if this is driven away or rendered powerless by 
 executive interference with the administration of the law, he cannot secure 
 convictions. After one such experience in a community, when the district 
 attorney again calls on good citizens to render him their moral support, 
 men say : " What is the use ? If he is convicted, the governor will pardon 
 him, and we cannot afford to antagonize the defendant and his friends in 
 an effort to punish him, which in the end must prove futile." 
 
 Thus, as it has often happened, by the injudicious use of the pardon- 
 ing power, the law is stricken down in its own sanctuary, and is rendered 
 powerless for the protection of society by so-called executive clemency, 
 which, no doubt, is too often extended for no cause that ought to appeal 
 to the executive head of the state, who in this regard is made the guard- 
 ian and protector of all the people. This may be termed mercy to the 
 individual, but it is an outrage inflicted upon the people at large. It were 
 far better if the executive would blazon over his door, " Let the law 
 take its course, though the heavens fall," than that he should, out of 
 
24 AMERICAN STATE GOVERNMENT 
 
 pseudosentiment, listen with fervor to the pardon seeker, no matter how 
 potent may be his influence, unless he comes with clean hands and a 
 strong and honest cause, based on something outside the matters involved 
 or which might have been involved in the trial. 
 
 Again, the certainty of punishment is said to be, and no doubt is, a 
 strong deterrent to the commission of crime. To let it once be known 
 that after an influential criminal has been encompassed in the toils of the 
 law through the machinery of the courts, he has a sure refuge in the 
 pardoning power of the executive, then there is no law and no restrain- 
 ing force. On the contrary, the courts have been trodden under foot and 
 the majesty of the law has been insulted ; and men lose respect for the 
 law which the courts are incapable or powerless to enforce. Be not de- 
 ceived. You cannot sow the wind without reaping the whirlwind. No 
 more can you override the courts without breeding disrespect for law ; 
 and in these times of trouble nothing should be done to invite the rule 
 of the mob. 
 
 Do not misunderstand me : I am not opposed to the exercise of the 
 pardoning power. On the contrary, I believe it is a high and sacred pre- 
 rogative, and it should be preserved, in all of its purity, to the executive. 
 But I believe it should be regulated by law, and on terms of equality to 
 all men who are so unfortunate as to become encompassed in its toils ; 
 not to the rich, the influential, alone, but equally to the poor and friend- 
 less. Like some treasured Damascus blade, the pardoning power should 
 be kept sacredly in its scabbard and should only be unsheathed on exigent 
 occasions, for it is the sword which cuts the Gordian knot of the law and 
 renders its edicts powerless. 
 
 In order to guarantee the efficiency and usefulness of the pardoning 
 power, I beg to lay down these propositions for its administration : 
 
 1 . When a pardon has been applied for, after the same has been filed 
 with the Board of Pardons, due notice should be given by said board to 
 some county official of the county where the party was convicted ; and 
 this notice should also be published in some newspaper at the county 
 seat of said county. 
 
 2. The Board of Pardons should be made a creature of law, with pre- 
 scribed rules of procedure. There should be an open hearing of the cases, 
 with opportunity to introduce evidence and argument on both sides. As 
 a general rule, the application for pardon should be founded on something 
 transpiring since the trial, or, if occurring before the trial in the courts, 
 failure to discover same must not have arisen from want of diligence. 
 
 3. Said board should not be authorized to act as a court of review to 
 pass upon the correctness, regularity, or legality of the proceedings in the 
 trial court which resulted in conviction, but should confine itself to a 
 hearing and consideration of those matters only which would properly bear 
 on the propriety of extending clemency by the governor in the case. 
 
 4. It should also be provided that no member of the legislature, 
 
THE GOVERNOR 
 
 25 
 
 penitentiary official, or other public official should apply for a pardon 
 on behalf of any convict. 
 
 5. It should further be provided that no person applying for a pardon 
 in favor of a convict should receive a greater fee than one hundred dol- 
 lars ; and in every case the person applying should be required to file an 
 affidavit of the amount of his fee. 
 
 6. The findings of said board should be filed with the governor and 
 should afford the basis of his action in extending the pardon, though, 
 under the constitution, he might not be circumscribed by the reasons 
 furnished. In all cases he should be required to file a copy of the pardon 
 with the Secretary of State, and this should be published in the county of 
 the residence of the convict. 
 
 7. While under the law as it now exists it seems the executive may 
 grant conditional pardons, I believe there should be a definite statute on 
 the subject, giving the governor authority, on the recommendation of the 
 board, either to grant paroles or conditional pardons based on certain reg- 
 ulations prescribed by law. In regard to this latter proposition I would 
 remark that a parole system has been found to work well in a number 
 of other states where it has been tried. And it occurs to me, inasmuch 
 as by our system of pardons and discharging convicts whose terms have 
 expired, we are annually turning loose a population on the body politic 
 more or less viciously inclined, it would be a better policy, so far as the 
 welfare of the state is concerned, to hold some restraining power upon 
 this population. For instance, where a party is sent to the penitentiary 
 for some felony and his punishment fixed at five years, on a record of 
 good behavior the board might be permitted to recommend his conditional 
 pardon at the expiration of two or three years. He could thus be turned 
 loose on his good behavior, with power on the part of the governor, under 
 certain rules, to restore him to the penitentiary if he violated his parole. 
 This at least would tend to make a good citizen of him, whereas, under 
 our present system, there is no such guaranty, and as a result many con- 
 victs who have served out their terms or been pardoned are being con- 
 victed for other crimes and returned to the penitentiary. 
 
 If the above rules are adopted and enforced, there will be more equality 
 before the law. The poor man will then have as good a chance at a par- 
 don as the rich and infiuential. There will be more certainty in results 
 reached, and consequently more respect for law. The governor will be 
 protected against the invasions of the pardon broker, while the courts 
 will be conserved against executive encroachments. At the same time, 
 under the parole system, a premium will be placed on the good conduct 
 of the convict when he has been turned loose, which will operate as a 
 safeguard to the community ; and it will follow inevitably that there will 
 be a betterment in the administration of the criminal law through the 
 courts, and a general uplifting of society throughout the length and 
 breadth of the state. 
 
2 6 AMERICAN STATE GOVERNMENT 
 
 THE ENFORCEMENT OF LAW 
 By Governor J. W. Folk 
 
 In the state of Missouri we have now in operation what is called the 
 Missouri idea, — the idea that public officials should answer at the bar 
 of public opinion for all official acts ; that the man who, in his official 
 life, betrays his people is a criminal; and that laws are put upon the 
 statute books to be observed, not to be ignored. 
 
 In proportion as the average morality in a state is strong, just to that 
 extent is the state great, and good government reigns. Laws that are 
 put on the statute book must be put there for some reason. Laws that 
 are not enforced add just so much to good government as sores do to 
 the strength of the human body. 
 
 Many men observe those laws which they like and disregard those laws 
 that are obnoxious to them. The trust magnate looks with abhorrence 
 on the pickpocket who violates the larceny statutes, but thinks that he 
 himself has a perfect right to break the laws against combinations and 
 monopolies. The burglar detests the lawbreaking of the trusts, but 
 thinks the law against housebreaking unjust and unfair. The boodler 
 considers the law against bribery as an interference with his personal 
 rights, but he demands the rigid enforcement of the law against the man 
 who steals his property. The dramshop keeper thinks the law against 
 murder is a good law, but the law requiring his dramshop to close on 
 Sunday is Puritanical and tyrannical and a "" blue " law. It has been my 
 experience that any law looks '" blue " to a man who wants to break it. 
 
 So it goes. Men obey the laws that restrict the other fellow, but laws 
 regulating their own conduct they regard as interfering with their rights. 
 If every man were allowed to judge for himself and to like those laws 
 which are good and disregard those which are bad, as he sees them, we 
 would have anarchy. There would be no laws at all. That is the spirit 
 of the mob which hangs a man because it thinks he is a bad man. Yet 
 if each individual were given the right to put out of the way every person 
 that he thinks is not a good citizen, no man's life would be safe. The 
 only safe test is to enforce every law upon the statute books. If the law 
 is a bad law, the remedy is to repeal it, not to ignore it. 
 
 No official has a right to ignore any law. It is not for him to say 
 whether the law is good or bad, but it is for him to enforce it as he finds 
 it on the books. 
 
 A great deal has been said in Missouri in the last few weeks about 
 what is commonly called the "lid." The "land of the lid" means the 
 "land of the law." When people talk about taking off the "lid" on 
 Sunday, they mean to let the law be violated with impunity. They mean 
 for officials to violate their oaths of office and to cast away the obligations 
 
 iFrom an address to the Kentucky Bar Association, 1905. 
 
THE GOVERNOR 
 
 27 
 
 that they took when they entered ofifice. If we take the " lid " off of the 
 Sunday law, can we not with equal propriety take the " lid " off of the 
 larceny statute and off the murder statute ? Then we would have anarchy. 
 
 The greatest danger to any government lies in the fact that laws that 
 are made are not enforced as they are made. There has been entirely 
 too much making of laws to please the moral element and then allowing 
 the laws to be ignored to please the immoral element. 
 
 My convictions may be termed idealistic, but ideas and ideals are the 
 life of a free people. We are made and governed by the things we 
 cherish. The public life of a nation is but the reflection of its private 
 life. No government was ever better than the people made it, nor worse 
 than they suffered it to become. Without moral vigor material strength 
 counts for nothing, resources count for nothing. The Empire of Rome 
 built highways and constructed splendid cities, while her civilization was 
 declining. She erected barriers against the barbarous hordes who surged 
 over them, while the strength of Roman character ebbed away, and when 
 that was gone there was nothing to defend, there was nothing to conquer. 
 
 There is an old tale of an Eastern king who caused a magnificent 
 palace to be erected as the abode of his majesty and power. Stone by 
 stone the structure grew and the heart of the king swelled with pride. 
 One morning the palace was found in ruins, — not one stone stood upon 
 another. " What great treason has been accomplished here ? '■ the king 
 exclaimed ; and a price was set upon the head of the traitor who had 
 destroyed the abode of majesty. But a wise man of the court said to the 
 king : " Great master, there was no treason here. Your house that was 
 great and mighty has fallen down because the builders used mortar 
 without sand, and the work that they did has come to ruin." 
 
 So with the state. External grandeur counts for nothing if we ignore 
 those vital principles of morality and of law that give life to a state. We 
 may count our wealth as the sands of the sea ; the domes of our capitols 
 and the spires of our churches may pierce the sky and glitter among the 
 stars, yet all must fall, all must crumble away like the palace of the 
 ancient king, unless it be welded together and strengthened by those 
 moral principles that are the foundation of an enlightened citizenship. 
 When corrupt principles are allowed to influence public acts, and selfish 
 considerations deter the people from upholding the laws and from giving 
 their best interests to the public good, we are making mortar without sand. 
 
28 AMERICAN STATE GOVERNMENT 
 
 LAW ENFORCEMENT IN KENTUCKY ^ 
 By Governor Augustus E. W'illson, of Kentucky 
 
 The real test of strength of the law-and-order sentiment of a commu- 
 nity is not in the acquiescence of a mild-mannered race, but it is when 
 strong, hard-headed, determined people, with their feelings and passions 
 excited so that disorders result, finally put down their revolt and restore 
 order and safety. From the earliest times our race has never been either 
 timid or easy-going. It has always been strong, determined, earnest, 
 hard-headed, and fearless, and it has been the rule and not the exception 
 for every man to fight against what he believed to be wrong. There are 
 many common instances of what any typical American will resent with 
 violence, regardless of law. He rarely sues out a peace warrant against 
 a man who calls him a liar. Generally our people have continued an 
 even, steady march, holding strongly to the law; but it is inevitable that 
 such a people, from time to time, should have storms of excitement and 
 passion, local outbreaks, and times of lawlessness. 
 
 The Ku-Klux had a large membership in Kentucky, and for a time 
 established a reign of terror, making many afraid, and it deprived people 
 of their liberty and of the protection of the law ; but Kentucky soon made 
 it a felony for any two or more men to band or confederate together to 
 threaten or intimidate any person or injure his property. Later the 
 organized tollgate raiders stopped the collection of tolls and destroyed 
 large investments in turnpikes. The feuds in some counties are not 
 strange in a race which for generations kept up the feuds of the Orange- 
 men and Catholics, and the Scotch and English. But there is strong 
 evidence of the Kentuckian's devotion to law and order in the frequency 
 of the verdicts of mountain juries, inflicting punishment for taking life 
 whenever they have a chance. 
 
 The tobacco war in Kentucky was one of the most dangerous dis- 
 orders that Kentucky has known. I shall review briefly some of its 
 principal incidents. 
 
 In a message to the legislature in January, 1908, I said : 
 
 Throughout most of the year law and order, peace and good will, have pre- 
 vailed throughout the commonwealth. . . . The pleasure which this peaceful 
 and prosperous condition brings to the hearts of all good Kentuckians makes 
 it all the more painful for the governor to speak of the renewal of serious 
 lawlessness and disorder in parts of the commonwealth, which have lately 
 broken our record of peace and order, alarmed and distressed our people, 
 destroyed millions of dollars of values of property, . . . injured the good name 
 of our commonwealth, and caused alarm for the security of life and property 
 and the protection of our liberties, dearer than life or property, the news of 
 which, carried to the ends of the earth, will drive customers from' our markets, 
 1 From an address to the American Bar Association, 1909. 
 
THE GOVERNOR 29 
 
 turn desirable immigration to other states, and plant anew in the breasts of 
 thousands of law-abiding men and women, who love peace and dread lawless- 
 ness and disorder, the wish to move to states where the law protects all alike. 
 
 We have severe laws against trusts, ample to suppress and punish all com- 
 binations against the farmer ; and we have a statute which makes it lawful for 
 farmers to pool and combine against the buyers, when it is unlawful for them 
 to combine against the farmer. Our courts are in operation to protect the 
 rights of all and punish infractions of the antitrust laws. This great conflict 
 of interest between the parties interested in millions of dollars' worth of 
 tobacco has excited a great deal of hard feeling, angry controversy, and per- 
 sonal threats of parties on either side against the other ; . . . and finally these 
 proceedings have culminated in raids of large armed bands going around by 
 night and destroying the peace and security of the commonwealth, and the 
 partisanship in these matters has paralyzed some of the courts and officers, and 
 the grand juries and petit juries, so that the grossest violations of the law go 
 unpunished and the people's liberties are destroyed, with little hope of 
 redress. ... 
 
 In December, 1905, in Todd County, in the circuit-court room, packed by 
 excited men, a lawyer declared that if they did violate the law, they ought not 
 to be punished, and would not be prosecuted while he was commonwealth's 
 attorney ; and the very next night one tobacco factory was burned and another 
 set on fire, and the following Monday night a large band of armed and masked 
 men held up a railroad train and searched it for tobacco and dynamited a snuff 
 factory, and although the circuit court was in session, with a grand jury 
 impaneled, no one was indicted or punished. 
 
 Early in 1907 men behind these schemes formed, for the first time, a gen- 
 eral organization in sufficient numbers to intimidate all not similarly organized, 
 and early in the year a large armed band of masked night riders made a very 
 ugly sample of the old country's border raids on the town of Princeton. Later 
 there were other disturbances, and finally it culminated in the raid on Hopkins- 
 ville, about two o'clock on the morning of December 7, by a small army of 
 several hundred mounted men, armed and masked, who, under the cover of 
 darkness, without warning, fell upon the city and overwhelmed and intimidated 
 the people of a whole city. Their deeds in Hopkinsville are known of all men 
 and have done incalculable harm and brought great shame upon the common- 
 wealth, but not one has yet been punished, and for the time there was almost 
 paralysis in business. 
 
 A similar raid of armed and masked men was made on the large town of 
 Russellville, and it was seized, much valuable property burned, and people shot 
 and wounded, and a whole region again intimidated. In Bracken County there 
 has been a state of terror, oppression, and intimidation for weeks. 
 
 In large districts the people are deprived of the protection of the law. 
 Lawless men have been constantly ready to break out in several counties, and 
 the people of Kentucky are brought suddenly and squarely to face the question, 
 whether the laws of more than two million or the violence of a few hundred 
 shall prevail. 
 
 There can be no doubt of the final result. Anglo-Saxon common sense and 
 law always win in time. Our people had better lose not only part of the value 
 of their tobacco, but even their farms, than their liberties, and presently there 
 will be a great reaction in public opinion. Judges and prosecuting attorneys, 
 
3° 
 
 AMERICAN STATE GOVERNMENT 
 
 who fail in the critical moment, will have to answer for their neglect of duty, 
 and finally everything will straighten out ; many who are most guilty will go to 
 the penitentiary, and the rule of law and order will be resumed everywhere. 
 The executive will faithfully uphold the law, but it is the people's law and 
 its strength is in the support of the people for their own laws. 
 
 The message advised the enactment of a law for change of venue, in 
 the investigations of such crimes, from the seat of trouble to other coun- 
 ties, so that local violence would not hinder indictments and verdicts ; 
 but the general assembly took no action. 
 
 The armed men who raided Hopkinsville, after shooting up the town 
 and terrorizing citizens, burned property valued at $200,000. A great 
 deal of ability, time, money, and work were surely necessary to get this 
 regiment of men from different counties so well organized, drilled, and 
 trained, and there can be no doubt that the work was done and money 
 furnished by the tobacco associations. 
 
 One of the judges of the court of appeals suggested inviting the 
 tobacco growers and buyers to a conference at the governor's office, to 
 inquire into the cause of the disorders. He was asked to write out an 
 invitation to meet with the governor, and it was prepared by him and 
 issued. Some two hundred tobacco growers, a trust representative, and 
 a few tobacco buyers attended. The governor, in opening the meeting, 
 said that all sides should be heard ; that he was neither a tobacco grower 
 nor buyer, and that his only interest was to preserve the peace ; that no 
 one disputed the fact nor could question that the night riders were guilty 
 of the felony denounced by the Ku-Klux law, and of the felonies of 
 arson and assault with intent to kill, and that they are cowards and 
 criminals, and he added : 
 
 I have invited no law breaker to this conference. I will have no conference 
 with him. For him there is the law, nothing less and nothing more. The law 
 of two million people cannot be defied by five hundred or five thousand or 
 fifty thousand men. It must be obeyed. It does not request ; it commands, 
 and will enforce obedience. The poorest man, single and alone, may demand 
 the whole power of the commonwealth, if necessary, to protect his constitutional 
 rights. The law must be enforced. I believe the people will stand by the law, for 
 the strength of the law is the people, and the strength of the people is the law. 
 
 The justice, a very popular and attractive man, spoke of the law and 
 the duty of the people, but toward the end of his address said : 
 
 Governor Willson is the governor of the people, but as governor he cannot 
 execute a single law without the people. The greatest power in the land is in 
 the jury box. The governor and all the commonwealth have not the power of 
 twelve men on a jury. 
 
 Vou had better burn every barn in the commonwealth than, with uplifted 
 hand, in the jury box, profane your duties and render an unjust verdict in the 
 name of the law. The people of Kentucky have it in their power to exclude from 
 
THE GOVERNOR 31 
 
 the commonwealth any company, concern, or combination that seeks to control 
 prices against them. In fact, they have the power to make fines like that with 
 which the Standard Oil Company was visited, look like the proverbial thirty cents. 
 
 And then he added : 
 
 I do not believe in soldiers, but I indorse every word uttered by the gov- 
 ernor about upholding the dignity and supremacy of the law. But I have 
 never seen the time when you could push an idea through an Anglo-Saxon's 
 head with a bayonet. 
 
 At this, the suppressed excitement broke out in wild applause. This 
 speech was a profound surprise to me, and if it had been left unanswered, 
 there w^ould have been an outbreak of crime and violence in a dozen 
 counties within twenty-four hours. I use the newspaper report of my 
 reply : 
 
 The moment he concluded Governor Willson rose and, hardly waiting for 
 the applause to end, began a reply in which he objected vigorously to the 
 statements in regard to the soldiers and scored the growers for cheering such 
 sentiments. " Why do you cheer, when it is said that soldiers should not have 
 been sent to Hopkinsville .^ Do you recall that two weeks ago armed and 
 masked criminals rode into Hopkinsville, shot into innocent homes, and burned 
 up property, and that up to this day not a man has been arrested ? The law 
 of the state must and will be supreme. These soldier boys are Anglo-Saxon 
 too. I am an Anglo-Saxon myself, and so are you, and I know that down in 
 your hearts you want the law enforced. If necessary, we will call on every one 
 of you to shoulder a musket and help enforce it, and you will comply, and it 
 is wrong for other sentiments to be expressed and for the high judges of the 
 state to advise anything else. 
 
 " Every outbreak decreases the. value of every acre of land in Kentucky and 
 endangers the liberty of every man who is cheering these utterances, and 
 unless suppressed, the state will be abhorred as a place unfit to live in. The 
 hberty of the people is worth more than all the tobacco that ever was or ever 
 will be raised in Kentucky. Sometimes the only way to force the idea of law 
 and order through an obstinate Anglo-Saxon's head is by the bayonet. The 
 soldiers were necessary and had been called for by the county officers and 
 great numbers of people who had reason for their fears, and all the troops 
 needed will be ordered on duty whenever and wherever needed, if I have to 
 call out the reserve and bankrupt the state treasury. When an Anglo-Saxon 
 takes up arms against the people's law, the arms of the law will put him down. 
 Violence and intimidation, night riders and so-called ' peaceful armies ' will 
 be suppressed relentlessly, and all the power of the state government will be 
 used to do it." 
 
 The representative of the tobacco company, the chief buyer, made a 
 short address, which gave promise of an understanding being reached 
 between the rival interests, and committees were appointed, and the 
 negotiations brought on by this meeting finally ended in a settlement in 
 which the tobacco trust and the growers' pools — the two trusts — agreed 
 on a very good price for the pooled tobacco, to their mutual satisfaction. 
 
32 AMERICAN STATE GOVERNMENT 
 
 Such a sale of the pooled tobacco would, in my judgment, never have 
 been made but for the conference. There would have been strife, 
 bitterness, and violence, which would have ended all chance of agreement 
 upon good prices. But the result has not helped the cause of liberty or 
 law and order ; indeed, it has strengthened the hands of the two com- 
 binations, the tobacco trust and the farmers' pool, and the independent 
 buyers and the independent growers, who had not already sold, have the 
 " bag to hold. " The conference thanked the governor, and 
 
 Resolved, further. That this meeting of Kentuckians heartily indorses the 
 purpose of Governor Willson to discover and punish the perpetrators of the 
 recent outrages in western Kentucky and especially at Hopkinsville ; and we 
 do with all possible earnestness condemn those and similar outrages . . . and 
 hereby pledge to Governor Willson every assistance at our command, including 
 the power and influence of the organizations which we respectively here 
 represent, in his efforts not only to restore but to permanently maintain peace 
 and order throughout Kentucky. 
 
 This resolution of the meeting, composed almost wholly of tobacco 
 farmers, following so quickly the rebuke of the fierce applause of the 
 speech against the use of troops to put down the armed attacks on the 
 peaceful people, was very gratifying proof of the justice of the governor's 
 confidence in the devotion of the people of Kentucky to the law. 
 
 Not less effective than the troops was the organization in several coun- 
 ties of law-and-order leagues, and finally a state league, enrolling a very 
 large number of fearless and determined men, who were organized into 
 companies, and money was subscribed to pay all of the expenses. These 
 leagues helped patrol the roads and guarded their neighbors. There 
 were also many instances of individual heroic defense of homes and 
 property by men and even by women against the night riders. For 
 months hundreds of homes were guarded by their families, who kept 
 night watches under arms. The dangers were often as great and the 
 anxieties as thrilling as those which the pioneers had to endure from 
 the Indians. 
 
 Then followed many acts of oppression : plant-bed scraping, barn 
 burning, burning railroad stations, threatening, whipping and beating 
 white citizens, and destroying property in different parts of the state by 
 organized bands. On the application of citizens who were in danger, 
 small detachments of soldiers were sent to several counties, and ship- 
 ments of state guns and ammunition were made to responsible parties in 
 a great many places, and detachments were on duty with Gatling guns at 
 Hopkinsville and Lexington. Five hundred dollars, the largest reward 
 authorized, was offered for the conviction of each of the men guilty of 
 the raids and intimidation in all of the troubled counties, and to every 
 man who should give advance information of contemplated raids. 
 
 A succession of outrages, forcible seizures of tobacco, and whipping 
 more than fifty white men went on for months in Bracken County. 
 
THE GOVERNOR 
 
 33 
 
 Tobacco buyers were whipped by night riders in Lyon County at the 
 town of Kuttawa, and many people sold their property and left the state ; 
 the newspapers reported that fifty moved to Texas in a single day. The 
 disorders in western Kentucky continued, and further detachments of 
 militia were sent there. 
 
 Two hundred masked men seized on the town of Dycusburg. Two 
 men and a woman were beaten and a tobacco warehouse and a distillery 
 burned. This outrage was very brutal in its character. The raiders left 
 their horses at the edge of the town, and, after cutting the telephone 
 wires, began to shoot up the town. It is estimated that about two 
 thousand shots were fired. The first victim was unmercifully whipped 
 with thorn switches. They then fired into a family home, dragged the 
 owner out and whipped him until he begged for mercy, and when his 
 wife tried to rescue him, she was beaten. 
 
 In Nicholas County, Hiram Hedges, a poor farmer, was called to his 
 door and murdered in cold blood before the eyes of his wife and children, 
 by a band of night riders. Hedges, before he was shot, threw himself 
 on the mercy of the men and promised to comply with their wishes and 
 dig up his plant beds if they would leave his home, but they paid no 
 attention and shot him to death. Two men identified by the widow were 
 arrested and released on examination by a county judge. 
 
 Farmers all over the state were warned not to raise a crop in 1-908. 
 At Paducah the circuit judge, who acted with great courage and vigor 
 throughout all of these troubled times and impaneled a grand jury to 
 investigate the raids in Marshall County, received long-distance telephone 
 threats of violence. 
 
 A company of mounted infantry was put on duty as a night patrol of 
 the roads in the counties of Mason, Bracken, Harrison, Grant, and Owen. 
 
 There is not time to detail the many wrongs done. Through all the 
 story of violence it was plain that every crime was part of a plan to 
 make all tobacco growers afraid not to pledge their crops to the association. 
 
 It is of some interest to record the night-rider oath, which was in these 
 words : 
 
 I, , in the presence of Almighty God and these witnesses, do solemnly 
 
 promise and swear to become a member of this order. If I should betray 
 this order in any way by signs, acts, or writing, or cause to be revealed 
 the secrets of this order, I shall have to submit to the penalty which is put 
 upon me, which is death. I solemnly promise and swear that I will obey all 
 orders which may be given me, and I will go at any time they may call upon 
 me unless I or my family are sick. 
 
 A member of the band testified that he went with the night riders to 
 the homes of various men who were forced to come out and take this 
 oath of membership on their knees. 
 
 During these occurrences the governor was receiving from men and 
 women all over the state the most earnest and touching appeals for help 
 
34 
 
 AMERICAN STATE GOVERNMENT 
 
 and protection against the night-rider outrages, threats, and crimes. I 
 quote from a letter from one lady, which is a fair sample of many: 
 
 But I feel like this terrible mental strain on account of threats and also 
 actions from what is called night riders, I cannot endure much longer. When 
 we lie down at night we do not know whether it is for the last time, or whether 
 all our property will be destroyed before morning. My husband has had a written 
 notice that his house and barns would be burned and his hide split, and last 
 Friday night his old blind mother, eighty-four years old, had all of her tobacco 
 destroyed by them ; and last summer they would not let her wheat be threshed, 
 and notified the man that did thresh it, that they would blow up his machine 
 with dynamite, if he went into her field, until it was nearly ruined. The torture 
 that the poor country people are suffering is worse than death. What can you 
 do for us ? . . . It seems to me half the people of Kentucky will be crazy 
 before July, and so much property destroyed. 
 
 The governor is, by law, authorized only to employ two detectives and 
 to expend not exceeding ^(3000 in any year for investigations ; this was 
 entirely inadequate for investigating a state-wide conspiracy like this. 
 A very serious hindrance to the state administration in putting down 
 these disorders was due to the fact that some members of the general 
 assembly were in sympathy with lawlessness. There was an opposition 
 majority in both houses, and part of the general assembly was opposed 
 to law-and-order measures. 
 
 During all of this time it had been impossible, generally, to secure 
 any indictment by a grand jury against the night riders in any but two or 
 three of the counties, where a brave circuit judge used all the power of 
 his great office to suppress lawlessness, as in Calloway, where fifty-two 
 were indicted, while other officers, professing virtuous sentiments, con- 
 nived at packing the juries with night riders, so that the trials in some 
 courts, where men were plainly guilty, were farces. 
 
 For nearly a year the militia — mounted infantry — patrolled large 
 districts of the state. It was hard service, — detachments riding long 
 hard rides every night, through the winter and inclement spring, lonely 
 all-night patrols through hostile neighborhoods. And then the state law- 
 and-order league, by resolution, demanded that the governor should call 
 out the whole militia force of the state and post men in every county, 
 and reproached him for not taking more active measures. 
 
 The whole force of militiamen on guard in the state never exceeded 
 three hundred soldiers, whose patrols covered many counties and many 
 thousands of square miles and thousands of miles of roads. They were 
 at all times under strict orders not to parley or compromise with the 
 lawless in any way, but to attack them instantly wherever they found 
 them in masked bands, taking every care to be certain that they were 
 night riders, so that no innocent persons should be attacked. The lawless 
 men, ordinarily brave enough to fight their numbers or more than their 
 numbers, became panic-stricken at the idea of being killed in masks, and, 
 
THE GOVERNOR 
 
 35 
 
 even in large bodies, they would not venture to ride the roads patrolled 
 by a squad of only two or three militiamen. 
 
 Nothing could more forcibly illustrate the power of the sentiment of 
 the people for law and order than the panic which overcame the lawless 
 bands in the face of the power of the state, when three hundred militia- 
 men absolutely held back and drove to cover this great criminal organiza- 
 tion of ten thousand sworn night riders, with their many sympathizers. 
 The night riders claimed that they had thirty-two thousand members, but 
 the better opinion is that there were from eight to ten thousand. 
 
 To make the policy of the state authorities known, copies of letters 
 written by the governor to citizens who appealed for protection, were 
 published, from which I give a few extracts : 
 
 I am sure that in time the people will realize the enormous loss they have 
 sustained in money, property values, liberty, and reputation, and that presently 
 the pendulum will swing back, with resistless power for the punishment of the 
 criminals. ... I have no idea whatever of coming to Hopkinsville to have a 
 conference. . . I cannot understand how they can think that it would be 
 even sensible, much less necessary, for the state to negotiate with them as if 
 they were the government of another state. The laws are in full force to pro- 
 tect them. The courts are open to them just as to others. The state is not 
 asking any conference with these men — it has no more interest in them than 
 other individuals. It will not think of conferring with them as if they were 
 elected representatives. There will not be a thread of compromise with these 
 flagrant crimes. No matter how long it takes, the state, with all its power, is 
 ever pressing forward to the punishment of the guilty. . . . The trials may be 
 temporarily delayed, some miscarry, but the law will be enforced and the crim- 
 inals will be punished without any sort of compromise ; and unless all violence 
 ends at once and peace is fully restored, there will be no earthly possibility of 
 any successful appeal to the governor to make any allowances for the crimes. 
 They have injured the property of the people ; they have destroyed public 
 confidence and hurt the good name of the state a hundredfold more than a 
 dozen murders committed without combination. No man could do his duty 
 nor be faithful to the constitution and the liberties of the people who would 
 entertain any possibility of mercy for organized crime, and there must be no 
 possibility of mistake or doubt on this subject, and there need be no doubt or 
 fear in the minds of the law-abiding people of the final result. When brought 
 to face the failure of the purpose for which the crimes were instigated, it will 
 not be long until there will be such public feeling for the prosecution that 
 there will be no difficulty in enforcing the law, no chance for any public official, 
 who has failed to do his duty, and no chance for any man who planned, organ- 
 ized, or took part in the crimes, and it will not be long to wait. 
 
 Another letter to a law-and-order organizer : 
 
 ... I believe in organization, but there should be no use of the power of 
 numbers to rule by force or in any way except by law, either members or those 
 not members. The rules and contracts must be enforced by law and not in 
 any case by private violence, and it will not be long until all men of ordinary 
 
36 AMERICAN STATE GOVERNMENT 
 
 sense will see that one cannot win customers by threats ; and several counties 
 have suffered brutal ruffianism quite as dangerous as the Indian ravages were 
 to our pioneer fathers, so that nobody will wish to move into these counties, 
 and every man who loves his liberty will wish to move out. Everybody, a few 
 days ago, was safe and happy, but everybody is now unsafe and unhappy, and 
 not a particle of good — nothing but harm — has come of it all, and presently the 
 people will turn and punish the Ku-Klux and there will be no mercy for them. 
 
 In a letter to Bracken County : 
 
 I have been greatly surprised at the continued reports of flagrant, open Ku- 
 Kluxism in Bracken County. It seems that hundreds of men in so-called 
 " peaceful armies," marching in large numbers, have visited people of their 
 county, and even in Mason County, to compel them to give up their liberty 
 and to obey men who have no right to force their will upon their neighbors. 
 
 The word " peaceful army " is an insult to every man's intelligence. Every 
 marching band is guilty of felony under the Ku-Klux Act and subject to 
 indictment, conviction, and sentence to the penitentiary, and I hope there 
 will be no doubt in the mind of one of them that, no matter what temporary 
 encouragement he may have had, the loss of liberties and rights will arouse the 
 people to uphold their laws, drive the modern savages out, and demand their 
 punishment. 
 
 I glory in the noble courage of the woman who planted the flag, the emblem 
 of our liberties, at her door when the mob rode up to her father's home. I 
 honor the old Irish woman who defied them all. I honor the man who, with 
 loaded shotgun, commanded them to turn back from his front door. I wish 
 every man to be patient and never hurt another until forced to, but I shall 
 have a special desire to protect the man who defends his liberty, his property, 
 and his life at any risk from these " peaceful armies " of Ku-Klux. 
 
 Before the troops went on duty there vi^ere thousands of Kentucky 
 homes in which the men, women, and children never went to bed without 
 fear of death, danger, and arson ; yet in a few months a handful of 
 soldiers suppressed the whole conspiracy, drove the leaders into hiding, 
 and put an end to the rule of fear. The total expense of the militia for 
 all purposes during these months, beginning in December, 1907, and 
 ending this year, has been about $225,000, of which some $200,000 was 
 made directly necessary by the night riders. 
 
 Several night riders were killed, but the fear of detection of the others 
 caused desperate efforts, in every case, to conceal the fact of each death. 
 Reports show that several committed suicide on account of the crimes. 
 
 A proclamation issued by the governor called upon the people to 
 defend themselves, and told them that if they did, they would need no 
 lawyer if they hurt anybody in defending their homes. This promise has 
 been kept. The night riders never risked any chance of an engagement 
 with the troops. The outrages were planned and executed in secret and 
 under cover of darkness. No troops were ever sent except under the 
 law authorizing the governor to order them in case of danger to life or 
 property, but they were always sent when applied for by the public 
 
THE GOVERNOR 37 
 
 officers, and whenever and wherever they were needed; and, in many 
 cases, where local officers were in sympathy with the night riders, they 
 were sent by the governor's order, without appHcation, when it was cer- 
 tain that the danger existed. 
 
 The state league resolution for calling out the whole state militia was 
 answered by saying that under the law the governor could not send any 
 troops without information showing a necessity for them. 
 
 Under strict orders, there was no news or information given of the 
 movements of the troops. They carried on their patrols in such a way 
 that the night riders never knew where they might turn up or intercept 
 them. The people's soldiers, on their part, conducted themselves splen- 
 didly under great hardships, with patience, courage, sound common sense, 
 and unfaltering loyalty, and became seasoned soldiers fit for any duty. 
 There was never any complaint of their behavior or performance of duty. 
 
 Prominent members of the Dark Tobacco Association called upon the 
 governor and offered to have the lawlessness stopped if the governor 
 would withdraw the troops and stop the investigations, but they were 
 told bluntly that no parley would be held with them and no compromise 
 made. 
 
 The highest reward permitted by Kentucky law was offered for 
 information that would lead to the apprehension and punishment of 
 every man guilty of cooperation with the night riders or of banding or 
 confederating together to injure or intimidate others, and for advance 
 information of intended riots ; these rewards would aggregate hundreds 
 of thousands of dollars if the guilty were exposed and successfully 
 prosecuted. 
 
 There has been no consideration of political future or popularity nor 
 of the wishes of the lawless, but there has been a stem, relentless, and 
 unwavering purpose and an unceasing effort to suppress lawlessness and 
 punish crime. It rests with the people of the commonwealth and their 
 courts to return the indictments and punish the guilty. There will be no 
 pardon for this offense. 
 
 This plan of action has been denounced with every form of abuse and 
 falsehood. Many county newspapers are under the influence of the 
 night riders, and here and there a judge or state's attorney, elected by 
 the people and not subject to removal or correction by the governor, 
 has faltered in his duty, and in some instances sympathized openly with 
 the criminals. But our people are coming to their own again, and there 
 will be prosecutions and convictions for the wrongs suffered in so great 
 a territory and for so many weary months. I do not know any state 
 to-day where the sentiment for law and order is more universal, earnest, 
 and uncompromising than in Kentucky. We have the straightest typical 
 Americans in all this land, and the best law-and-order people in the world. 
 
 While I have never faltered for an instant in the firm faith in our 
 people, I may confess strong gratification that this faith has already 
 
,8 AMERICAN STATE GOVERNMENT 
 
 proved to be just, and that the policy of law and order to-day has the 
 cordial approval of the people of Kentucky. I deem myself most fortu- 
 nate indeed that it has been my lot to be the governor of Kentucky in 
 these times of trouble and anxiety, and to have the faith I have had in 
 our American people. I am entirely safe in saying that there is no issue 
 in Kentucky upon the question of law and order ; that the sentiment of 
 the state is strong, earnest, faithful, and unyielding in favor of upholding 
 the law, without temporizing with any form of defiance of it. 
 
 No politics were, generally speaking, injected into this contest. In 
 some counties the night riders tried to make it a political matter and 
 were actively helped by some politicians, but the attempt has reacted. 
 One circuit judge, who made righteous law-and-order charges to grand 
 juries, but made a farce of the selection of men for juries and of the 
 trials of the night riders in his court, was defeated for the nomination 
 in his own party convention in the dark-tobacco district. The Tobacco 
 Association has publicly denounced lawlessness, and no candidate for 
 office dares make any public claim or even admission that he was a night 
 rider or a night-rider sympathizer. 
 
 So far only two men, I believe, have been convicted of night-rider 
 crimes, each receiving a sentence of only one year, but victims of these 
 outrages have recovered in actions in the federal court large sums in 
 damages. 
 
 Except for the first raid at Princeton, in which tobacco-trust property 
 was destroyed, and except one trust building which caught fire from an 
 independent factory, there has been no injury to any of the trust's 
 property or employees. It has never asked any protection, and a,ll of the 
 efforts of the night riders and the different tobacco associations have been 
 directed against the independent farmers who would not join the farm- 
 ers' pool and put their crop into its hands, and against the independent 
 bu)'ers and factories, who would not yield to the trust. At the end of all 
 the trouble the two trusts, the tobacco trust and the association trust, 
 readily agreed with each other, to their very great mutual gain and profit, 
 and the trust got all of the pooled tobacco that it wanted, having the 
 first choice and leaving the independent factories and buyers to get what 
 it did not want, while those unfortunate people who cherished the liberty 
 and the right of each man to do what he pleases with his own so long 
 as he does not interfere with like rights in others, were ground fine 
 between them. 
 
 This tobacco trouble is as old as the growth of tobacco. Fiske shows 
 that just such troubles existed in Virginia in early colonial times, and 
 they are not new to Kentucky, though they have never before resulted 
 in such widespread crime and intimidation. 
 
 The people of Kentucky owe a great debt to the circuit judges, county 
 judges, commonwealth's and county attorneys, who never faltered even 
 when the storm was darkest, but kept the faith and fulfilled their duties 
 
THE GOVERNOR 39 
 
 regardless of personal safety or political chances. These men, with 
 whatever party they may affiliate, have shown their title to the confidence 
 of their people. But more than all, I render a tribute of affectionate 
 respect to this American people, with its inherited, instinctive love of law 
 and order, its fidelity to honor and conscience and its sturdy defense of 
 its rights and liberties. 
 
 May I not justly claim that this result in a truly representative straight 
 American state is a conclusive demonstration, not only to Kentucky but 
 to every other state and community controlled by our race, that its 
 officers may always trust unhesitatingly to the ruling instinct, nay, even 
 passion of our race, to uphold the law, even when, in a time of the 
 greatest excitement and most deep-seated prejudice, disorder temporarily 
 gets the upper hand. Woe to the officer or politician who temporizes or 
 parleys with crime and violence under any circumstances ; almost 
 instantly the rebuke will come and the weakness will be punished. 
 
 The disorders in Kentucky, under the secret operation of the men 
 who had a money interest in continuing their unlawful and criminal 
 practices, lasted for nearly a year, but finally the reign of fear in thou- 
 sands of homes has come to an end ; and I trust in our people and 
 believe that there can be no serious renewal of the troubles, although 
 there is a possibility of detached local disturbances, inspired by the men 
 who gained money and power through their leadership in the tobacco 
 organization and the night-rider conspiracy against the people and their 
 law. The murderers of Hiram Hedges are yet at large. The night 
 riders are yet unpunished, but no statute of limitation protects them, 
 and over all of them hangs the sword of justice of the people's law. 
 Soon, I hope and believe, grand juries will indict and petit juries will 
 convict, and the people will punish the criminals. 
 
 The measure of power or force in anything is always calculated by 
 the resistance which it overcomes. A mere trivial power may whirl an 
 electric fan several hundred revolutions a minute or a spindle three 
 thousand times in a minute. That is because the resistance is slight. 
 You may take a colony of Micmac Indians, one of the most harmless 
 people on earth ; they break no laws, but will you say of such a people 
 that there is among them a power in the sentiment for law and order ? 
 There is simply a lack of inclination, a lack of independence, to do 
 anything except in the usual way. This American people comes honestly 
 by a sturdy independence and a strong temper and sometimes a hard- 
 headed violence, but side by side with all that, goes a wonderful pas- 
 sion for law and order that can cure any disorder that may spring up in 
 its midst. 
 
 I maintain that I have proved that in this typical American state — with 
 a people almost all of whom were born on this soil of the old British- 
 Scotch-English and Irish stock, with all its hard-headedness, its fearless- 
 ness, and its daring not deteriorated, but as strong to-day as it was in the 
 
40 AMERICAN STATE GOVERNMENT 
 
 pioneer ancestors that came down into the dark and bloody ground — the 
 best evidence of the strength of the lavv-and-order sentiment is when a 
 people like that puts down just as strong people who, under temporary 
 excitement and passion and prejudice, break the law. It is the resistance 
 that measures the strength of the power, and, measured by that, all these 
 instances I have told you of resistance to law and order are only so 
 many conclusive evidences of the overwhelming power of the sentiment 
 of the people to put down lawlessness and protect liberty, with their lives 
 if need be. 
 
 Now I say to you that in every state ruled by our race the sentiment of 
 law and order, just as it is in this typical state of Kentucky, is the 
 strongest sentiment in the hearts of our people, and it will surely put 
 down all lawlessness and disorder. This country will never degenerate into 
 anarchy, but will put it down in whatever form it is manifested, and 
 will bring the criminals to justice ; we shall do it in Kentucky and lead 
 the way for all the rest of the states. 
 
II 
 
 THE LEGISLATURE 
 
 OUR STATE LEGISLATURES 1 
 By Samuel P. Orth 
 
 Does a fiendish necromancer transform a John into a Judas when he 
 enters the halls of legislation, or is it impossible to elect able and honor- 
 able men to make our laws ? Popular impression seems to affirm both 
 horns of this deplorable dilemma. We have grown to distrust our state 
 legislatures. Their convening is not hailed with joy, and a universal sigh 
 of relief follows their adjournment. The utterances of the press, the 
 opinions of publicists and scholars, and the sentiments of the street and 
 the market place are quite at one in their denunciation of the legislature. 
 Our representatives are the subject of jest and ridicule, of anger and 
 fear. This is a serious matter. When a democracy loses faith in its 
 lawmakers, respect for law must soon fade away, and with it vanishes 
 self-government. 
 
 Has it never occurred to us that these gibes and thrusts, cartoons and 
 editorials, sermons and sentiments, ought to be directed against ourselves 
 and not against our servants .' 
 
 I am not writing an apology for legislative excesses. The man who 
 thinks a legislature infallible harbors an insane delusion ; the man who 
 thinks it utterly depraved allows his malevolence to dispel his reason. 
 
 A careful study of and long familiarity with state legislatures, with 
 their personnel, the conditions under which they were elected, and the 
 environments in which they performed their tasks, leads me to believe 
 that some of our criticism is misplaced, and some of our zeal and activity 
 displayed at the wrong time. There are faults, gross and glaring, in the 
 conduct of state legislatures. There are also faults, as gross and glaring 
 and less excusable, in the conduct of the constituencies which selected 
 the legislators. These must be studied together, that the truth may be 
 learned and the faults remedied. 
 
 The nature of the problem and the scarcity of published data render 
 the scientific study of the legislative situation delicate and difficult. I 
 have here attempted a fragment of such an inquiry. For this purpose 
 I have taken four legislatures, of states whence biographic data were 
 
 1 Atlantic Monthly, December, 1904. Reproduced by permission. 
 41 
 
42 AMERICAN STATE GOVERNMENT 
 
 forthcoming. It is of course vain to seek in a handful of biographic statis- 
 tics the special fitness of a given class of men for legislative duty. Yet the 
 average human being is influenced most potently by education, by occu- 
 pation, and by experience. Knowing these, we can at least roughly gauge 
 his fitness for the ordinary duties of public life. Genius, indeed, is not 
 amenable to statistical diagnosis, neither is it an element in this analysis. 
 There is not even a "trace." Genius would not be representative of the 
 masses. 
 
 I begin with the legislature of Vermont, a sturdy New England state, 
 clinging more nearly than any of its neighbors to the ideals of a day long 
 past. A survival of the Revolutionary times gives each town a represent- 
 ative in the lower chamber. Hence we find one of the largest assemblies 
 in one of the smallest states. There are two hundred and fifty-two mem- 
 bers in this populous House of Representatives, while in the Senate 
 there are thirty members. 
 
 Of the thirty members of this Senate, only three were college grad- 
 uates ; seven had received training in professional schools ; seven had 
 been educated in academies, so numerous in New England ; and thirteen 
 received no further education than that offered by the public schools. 
 Nine of the senators were farmers, of lawyers and physicians there were 
 four each, and thirteen were engaged in mercantile pursuits. The state 
 constitution limits the age of the senators to thirty years. Only three 
 members of this Senate were under forty years of age, one half were 
 between fifty and sixty, six ranged in age between forty and fifty years, 
 while six were beyond threescore, the oldest member being seventy-three. 
 The average age of the lawyers was forty-three years, of the physicians 
 fifty years, of the business men fifty-one years, and of the farmers 
 fifty-four years. 
 
 Of these thirty men only three had had no previous political experience. 
 Some had been in office practically all their lives. One had carried the 
 burdens of " all the usual town offices." Another had been township 
 clerk thirty-five years, chairman of the selectmen thirty-seven years, and 
 all this while a member of the school board and an assistant judge. 
 Another had held " most of the town offices," while still another had 
 held " all except clerk and treasurer." What showers of public honors I 
 
 In the House one twentieth were college graduates, one fourth had 
 received training in academies, while over one half had gone no farther 
 than the public schools. There were one hundred and twenty-three farm- 
 ers in this House, six lawyers, ten physicians, forty-eight merchants and 
 manufacturers, three bankers, five preachers, six insurance writers, two 
 hotel proprietors, three liverymen, fourteen laborers or artisans, including 
 a blacksmith, a driver, a sailor, a teamster, a painter, a " board savifyer," 
 several laundrymen, carpenters, and loggers. Six had no visible occu- 
 pation other than that of " politician and officeholder," while one was a 
 student not yet graduated from his college. One would think that a 
 
THE LEGISLATURE 
 
 43 
 
 wonderful degree of versatility and originality was displayed by some of 
 these lawmakers in their private pursuits. One member made his daily 
 bread by "occasional speculation," another was a "fish culturist." One 
 useful member was a " lawyer, farmer, and breeder.." Another was busy 
 as " town clerk and treasurer, and clerk in a general store." But the 
 most versatile of this coterie of men of many affairs was one who pro- 
 fessed to find time to be a " furniture dealer and undertaker and miller 
 and dealer in grain and feed." 
 
 In this House were twelve under thirty years of age ; one sixth were 
 between thirty and forty years, one third were between forty and fifty 
 years ; one fourth were between fifty and sixty years ; while thirty-five 
 were old men over sixty. The average age of the lawyers was forty 
 years, of the business men forty-three years, of the laborers forty-three 
 years, of the farmers fifty years, of the physicians fifty-two years, and 
 of the clergymen fifty-five years. 
 
 This House also was rich in political experience. Only one eighth had 
 never before held public office, and these were mostly the young men. 
 Many of the older members had held office for fifteen, eighteen, twenty, 
 and thirty-six years. Over one half had held more than three offices, and 
 had been in public service more than ten years. 
 
 Of this body of two hundred and eighty-two lawmakers only nineteen 
 had sat in former legislatures, — several, it is true, for four or five terms ; 
 but the vast bulk had received no previous training in legislative work. 
 Such special preparation for legislative duties as they possessed they 
 had received in the minor township and county offices. Thirteen of these 
 men were old soldiers, and two were of foreign birth. 
 
 Ohio may be taken as a type of the populous state in which manufac- 
 turing, mining, and agriculture are of nearly equal importance. There 
 sat in its general assembly thirty-three senators and one hundred and ten 
 representatives. 
 
 In the Senate one third had received a college training, a second third 
 had not been farther than the common schools, and the last third had 
 been trained in academies, normal schools, and professional schools. 
 Fourteen, or almost one half of this body, were lawyers ; nine were en- 
 gaged in business affairs. There were two teachers, two editors, two 
 farmers, and one physician. Nine of the senators were under forty years 
 old, nine were between forty and fifty years, ten were between fifty and 
 sixty years, and two were over sixty years old. The average age of the 
 lawyers was thirty-six years, of the editors thirty-eight years, of the 
 business men forty-four years, of the teachers forty-nine years, and of 
 the farmers fifty-five years. 
 
 One half of these senators had not held previous political office of any 
 kind. Only six had had previous legislative experience. 
 
 One eighth of the House members had received a college educa- 
 tion ; three eighths attended normal schools, academies, or professional 
 
44 
 
 AMERICAN STATE GOVERNMENT 
 
 schools ; and nearly one half received only a common-school education, one 
 representative reporting that he had not been '" in school after twelve." 
 One third of these representatives were lawyers, one fifth were farmers, 
 one sixth were business men, including manufacturers, bankers, druggists, 
 a lumber dealer, a cattle buyer, a hatter, and a confectioner ; there were 
 ten teachers, — all from country schools or villages, — five physicians, three 
 editors, and one preacher. Ten laborers and artisans also participated in 
 the lawmaking. This category includes a machinist, several carpenters, 
 and a cigar maker. There were two auctioneers in this House, one the 
 proud possessor of "' an established reputation," and the other " one of 
 the best in the country." Here was a commercial traveler who laid claim 
 to greatness because he had " traveled more than one hundred and eighty 
 thousand miles." One member had for thirty years been a court crier 
 accustomed to the routine of court drudgery. With him sat a metal pol- 
 isher who was an exponent of labor unionism. One member was still a 
 student in a law school. And, most unusual of all, there sat in this het- 
 erogeneous assembly a " musical composer " with a " national reputation, 
 being the author of many works on music and over one hundred piano 
 compositions, many of which have proved very popular," which is more 
 than can be said of some of the legal compositions which he helped enact. 
 
 Of these representatives of the people six were under thirty years of 
 age, very nearly one half were between thirty and forty years, one fifth be- 
 tween forty and fifty, one eighth between fifty and sixty, and one eighth 
 over sixty, the oldest member being eighty years old. The average 
 age of the teachers was thirty-five years, of the lawyers thirty-five years, 
 of the editors forty-two years, of the physicians forty-five years, of the 
 laborers forty-one years, and of the farmers fifty-four years. 
 
 One third of the House had not held any previous political office. 
 Nearly one fourth had been members of former legislatures, and four of 
 these men were professional politicians ; while others were " experienced 
 politicians or active in politics," or had " entered politics." Such mem- 
 bers had usually filled county and township offices. It is probable that 
 scarcely any one is sent to the state legislature who has not been active 
 in local party organizations, as a committeeman or as a delegate to county 
 or district conventions. The acquaintance thus formed is an essential 
 prelude to a successful political canvass. 
 
 There were members in this assembly who had tried their skill at many 
 occupations. The teacher who had turned lawyer or editor or farmer 
 was the most numerous of this class. Several were both farmer and 
 merchant ; others wrote insurance between the intervals of law practice 
 or merchandising. It is the man of modest affairs, or the man of no 
 affairs, who most relishes legislative experience. Over one tenth of these 
 members were old soldiers, and five were foreign born. 
 
 Indiana represents the states of the Middle West where the agricul- 
 tural interests are still predominant. Of the fifty senators who composed 
 
THE LEGISLATURE 45 
 
 its upper house, ten had received a college education, eight had gradu- 
 ated from professional schools, eight had partially completed a college 
 course, twelve had attended normal schools or academies, while quite 
 one third had not passed beyond the common schools. Lawyers com- 
 posed just one half of this Senate, six followed mercantile pursuits, 
 seven were farmers ; of artisans there were five, including a glass cutter 
 and a factory foreman ; there were also four physicians, two teachers, 
 and one editor. Only one of the senators was under thirty years old. 
 One half were under forty, one third were between forty and fifty, eight 
 were between fifty and sixty, while only three were over sixty. The 
 average age of the lawyers, the predominating force of the body, was 
 forty years, of the physicians thirty-nine years, of the teachers forty years, 
 of the artisans forty-five years, of the farmers forty-seven years, and of . 
 the business men fifty years. This was virtually a Senate of young men. 
 One third had not held previous political office, while one tenth had held 
 office over ten years, and one third had been members of former 
 legislatures, many of them for several terms. 
 
 One seventh of the House members were college graduates, sixteen 
 had received training in professional schools, six partially completed their 
 college course, while eighteen had attended academies or normal schools. 
 Nearly one half the members had no other education than that offered 
 by the public schools. The records of some of these men recall the 
 pioneer days. Two had received but " six months' schooling." Another 
 had been deprived of all educational advantages in his youth, and what 
 education he possessed he received after he had grown to manhood. 
 One member had learned to read in Sunday school. Yet another had 
 only a " limited education." And still another survival of the age of prim- 
 itive things had got " four months of schooling in a log schoolhouse." 
 Not quite one third of these representatives of the people were lawyers ; 
 another full third were farmers ; of the remaining one third, four were phy- 
 sicians and four were editors ; the remainder was about equally divided 
 between business men and artisans or laborers. With the bankers, manu- 
 facturers, and merchants sat carriage makers, miners, painters, glass 
 blowers, bricklayers, bottle blowers, and plumbers. Here also we find 
 a member who was still a student in college, and who was honored with 
 the privilege of nominating a United States senator. 
 
 Of experience in officeholding a scant one third had had none, while five 
 had been in public service over ten years, and one had held office over twenty- 
 two years. Nearly one fourth had been members of former legislatures. 
 
 Nine of this House were under thirty years of age and nine were over 
 sixty. The rest were about equally divided among the three decades 
 between thirty and sixty years. The average age of the lawyers was 
 thirty-four years, and twenty of this number were only thirty or under ; 
 of the laborers or artisans forty-two ; of the business men forty-four ; 
 of the physicians fifty-five ; and of the farmers fifty-five years. 
 
46 AMERICAN STATE GOVERNMENT 
 
 In this assembly were eight old soldiers and four foreign born. There 
 is evidence here of the same diversity of gifts that we have found in the 
 other states. Here is one man who was " teacher, publisher, and lawyer " ; 
 another who combined the tasks of " farmer, brickmaker, and brick- 
 -layer." Of '" farmer and lawyer " there are many ; so of those who unite 
 the duties of "' teacher and merchant " or " teacher and farmer," or 
 " merchant and insurance " ; while one carries his partisanship into his 
 breadwinning as a "" farmer, carpenter, contractor, and Democrat." 
 
 Here also sat representatives of the labor union, one of whom avowed 
 his convictions that "our tax and financial systems should be overhauled." 
 Fortunately he was in a large minority, and there was no overturning 
 of established institutions. A " sound-money-protectionist-expansionist " 
 helped neutralize the acid of socialism. 
 
 Finally, Missouri may be taken as a representative of the southwestern 
 states where the sentiments of ante-bellum days are being rapidly dis- 
 pelled by manufacture and industry. 
 
 In the assembly I describe sat thirty-four senators and one hundred 
 and forty-two representatives. One third of the senators were college 
 graduates ; nearly one half had not passed beyond the common schools ; 
 of the remainder about equal numbers had either a professional training, 
 or had attended college for a short time, or had taken a course in a nor- 
 mal school or in an academy. Two thirds of the senators were lawyers ; 
 the remaining one third were mainly business men, only three farmers 
 being found in the list, and one physician. One half of these men were 
 between forty and fifty years of age, two were over sixty, and one third 
 were under forty. The lawyers averaged forty-one years, the business 
 men forty-seven years, and the farmers sixty-four years. Only five of 
 this membership had held no former political office, and two thirds had 
 been members of former legislatures, most of these for several terms. 
 Nearly all of the lawyer members had been prosecuting attorneys, or city 
 attorneys, or county judges. This Senate was therefore rich in political 
 experience. 
 
 Of the one hundred and forty-two members of the lower house only 
 seven had completed their college course, while twenty-seven had gone 
 partially through college. Thirteen had attended professional schools 
 and twenty-one had received their education in secondary schools. Over 
 54 per cent were limited to a common-school education. One member had 
 formed the commendable habit of "studying at home," and his colleague 
 in intellectual industry confessed himself "quite a student of political 
 economy." 
 
 Not quite one third of the House were lawyers, and one third were 
 farmers ; one fourth were engaged in business pursuits, including bank- 
 ing, manufacturing, real estate, insurance, contracting, and milling. Six 
 members were physicians, three were teachers, and nine were editors and 
 " newspaper men." With the two clergymen sat one college professor 
 
THE LEGISLATURE 47 
 
 and one saloon keeper. The unions were represented by a plasterer, a 
 " grainer and marbler," a miner, a smelter, and a " railroad-car inspector." 
 
 The variations of mercantile and professional combinations were as 
 amusing as in the other states we have studied. Here was an " under- 
 taker and lawyer," certainly a misjoinder of parties. Should it not read 
 " undertaker and physician " ? Here sat the "" promoter and real estate 
 merchant," the " salesman and mine organizer," the " furniture dealer 
 and editor," the "' horticulturalist," and the "' breeder of hogs," the " mer- 
 chant, miner, and farmer," and the " teacher, minister, and farmer;" Of 
 " farmer and merchant " there were several, also of " farmer and miner " 
 and " farmer and teacher." 
 
 Seven of this interesting throng were under thirty years of age, one 
 seventh were over sixty, over one third were between thirty and forty, 
 and one half between forty and sixty. The average age of the lawyers 
 was forty-one years, of the laborers thirty-nine, of the teachers thirty-five, 
 of the physicians forty-two, of the business men forty-four, of the editors 
 forty-two, and of the farmers fifty-one. 
 
 One fourth of the House had not held previous political office, while 
 one third had been members of former legislatures, many of them for 
 several terms. Over one half of the members had held more than two 
 offices, and one third had been in office more than ten years. In this 
 assembly of one hundred and seventy-five citizens seven were of for- 
 eign birth and forty-two had borne arms in the Civil War, either for the 
 Union or for the Confederacy. 
 
 These are the four legislatures, and from what I can learn they are 
 typical of the entire forty-five that convene annually or biennially in 
 our land. 
 
 To those who look for a body of well-trained and expert lawmakers 
 this analysis must be depressing. To those who affirm that the average 
 state legislature is not representative of the great body of citizens, the 
 data gathered are likewise disappointing, for one must be profoundly 
 impressed by the real representative character of these lawmaking bodies. 
 Every degree of education is represented. Indeed, the one fifth of the 
 men of college training and the one third of academy or professional 
 training far outnumber the ratio of such men in everyday life. Every 
 profession is represented, — almost every conceivable business activity has 
 its patrons on the floor of our legislature ; with the farmer sits the arti- 
 san, with the banker sits the union-labor agitator, with the manufacturer 
 sits the small shopkeeper, with the preacher sits the saloon keeper, with 
 the professional specialist sits the Jack-of-all-trades. It is true that these 
 assemblies are far more representative of the rural communities than of 
 the great cities. I have mentioned the men who engage in a multiplicity 
 of pursuits. These can thrive only in the country. The city exacts spe- 
 cialization. From the cities come most of the young lawyers seeking 
 publicity, the labor-union representatives, and the professional politicians. 
 
48 AMERICAN STATE GOVERNMENT 
 
 The age of the lawmaker is not that of unfledged youth or useless age. 
 Man is in his prime from fort)- to sixty, and the very large majority of 
 our legislators are of that age. The extreme youth, not yet in possession 
 of his college degree, and the man laden with the experiences of eighty 
 years are only picturesque extremes in these democratic assemblies. 
 
 And in the experiences of political life, likewise, every phase and varia- 
 tion is represented. Those who have been only voters, those who make 
 politics a business ; those who are ardent partisans, and those who are 
 politically torpid ; the conservative and the demagogue, — all are inter- 
 mingled in these representative bodies. Even the foreign-born citizens 
 are well represented. 
 
 But a legislature is not only to represent the people, it is to make laws ; 
 and, unfortunately for our legislative system, the making of laws requires 
 expert knowledge, judicious temperament, and great wisdom. None of 
 these qualities are apparent in bulk in any state legislature. The class 
 of men who possess expert knowledge in framing and interpreting law 
 are the lawyers. While they predominate over other professions in the 
 legislature, those who are found there are either young men or men 
 without large practice. I think that it will surprise my readers to learn 
 that from one fourth to one third of the members had previous expe- 
 rience in legislative work. These can temper the conduct of the raw 
 members, but they can scarcely be called experts. It requires also another 
 species of expert to aid in lawmaking : the man who is possessed of tech- 
 nical information concerning the conditions that bring forth the law, — the 
 mining engineer, the electrician, the shipmaster, the sociologist ; the men 
 who are most affected by the contemplated laws. These are rarely found 
 in the halls of legislation. 
 
 There are other features of this problem which cannot be revealed by 
 statistics, but which must be discovered by personal knowledge. How 
 many of these men have been elected by corporate interests, to help 
 pass laws favorable to corporations ? How many are owned by politi- 
 cians, and how many by rich individuals seeking ulterior gain ? How 
 many sought their seats with the secret purpose of bartering their influ- 
 ence for money ? And finally, how many are absolutely independent, 
 placing public welfare high above the claims of party or of persons? 
 My experience must lead me to answer each of these questions in the 
 same manner : But very few. 
 
 The legislature is composed of average men, possessed of human weak- 
 nesses, prejudices, and passions. They are elected by party machinery. 
 They are pressed by corporate and party demands. The majority are as 
 honest as they are simple, and as efficient as they are wise. These men 
 meet to frame our laws; their work is largely foreordained. Let us 
 scan hastily their method of organizing and the quality of their output. 
 
 I remember the first state legislature I ever saw. I was a freshman in 
 college and had gone to the Capitol to witness the organizing of the Senate 
 
THE LEGISLATURE 
 
 49 
 
 and House. The scenes I looked upon were almost a parallel to those in 
 which I had been an actor but a few months before, — the organizing of 
 our freshman class. The importance suddenly thrust upon the fresh 
 matriculate turns his head about as much as the sudden fame upsets the 
 new legislator. Here are men who have always lived in small towns and 
 out-of-the-way places, unaccustomed to travel and distinction, now be- 
 come suddenly the center of interest for the entire state. Their pictures 
 are in the papers, distinguished politicians seek them out, they are com- 
 plimented and dined, and in the blaze of this transitory flame of glory 
 they lose themselves. The state legislature has been the burial place of 
 many a man's virtue. 
 
 The most important function of our early legislatures was deliberation. 
 This has almost entirely disappeared. The rush of the age has invaded 
 the dignified assembly hall, and bills are shot through as by pneumatic 
 pressure. The two most important factors in modem legislation are the 
 lobby and the committee. What deliberation now is granted a measure 
 is given in committee rooms and in private discussion. In the turmoil and 
 boyish ardor of organizing, the lobby interests must secure committees. 
 
 It takes some weeks before the new members become accustomed to 
 legislative routine. An average session lasts about four months. Of these 
 the first is given over to organizing and learning the pace, the second 
 and third to trading and manipulating, and the final month is' devoted 
 to law passing. 
 
 The amount of this legislation is overwhelming. One of the legisla- 
 tures I have described sat one hundred and thirty-two days. It passed 
 four hundred and forty-eight general laws, three hundred and twenty- 
 eight local laws, and sixty-two joint resolutions, a total of eight hundred 
 and thirty-eight enactments, or an average of six and one third a day. 
 But the work was not thus evenly distributed. One half of these meas- 
 ures were passed the last fifteen days. On the last day were passed 
 seventy general laws, seventeen local laws, and six joint resolutions. On 
 next to the last day were passed fifty-nine general laws, twenty local laws, 
 and one joint resolution, — a total of one hundred and seventy-three enact- 
 ments, or one fifth of the work of the session, in two days. I will grant 
 that some of this grist had been ground out in committee, but how fine 
 could even a committee grind so much grist ? There are twenty-four 
 hours in one day ; in forty-eight hours one hundred and seventy-three 
 laws were passed, or one law every sixteen minutes. But as the legisla- 
 ture sat only twelve hours a day, these rules of human conduct were 
 created at the rate of one every eight minutes. What fecundity 1 And 
 there is a fiction that every one is presumed to know the law. 
 
 These were not all trivial measures, mere amendments or matters of 
 little import. The work of this session included important laws concern- 
 ing the powers of the boards of health, laws regulating electric and gas 
 corporations, and an entire negotiable-instrument code. 
 
50 AMERICAN STATE GOVERNMENT 
 
 In the same year were passed by the various state legislatures nine 
 thousand three hundred and twenty-five local laws and four thousand 
 eight hundred and thirty-four general laws, — a total of fourteen thousand 
 one hundred and fifty-nine ; an overproduction that has lifted lawlessness 
 above par. 
 
 Of this mass of legislation a portion is wholesome, another portion is 
 merely passive and harmless, — if, indeed, any innocent and inert law can 
 be harmless, — a third fraction is vicious, and a final part is foolish. 
 
 The wholesome laws are usually the result of prelegislative deliberation. 
 I believe the practice developed in recent years, of codifying all laws 
 upon one subject, is a hopeful tendency toward mature legislation. The 
 listiess laws are the offspring of our deplorable habit of special legislation, 
 mated with our American good humor. The foolish laws are the fruit of 
 ill-conceived reforms. And the vicious laws are the result of bribery, of 
 carelessness, of selfishness, and of partisanship. 
 
 The first group of vicious laws are due to selfishness and bribery. 
 
 Some men are always found in every legislature who were sent there 
 for one special purpose. A few are always found who will play with the 
 gold of others. The combination of these few with the gullible many 
 makes possible vicious laws. Closely related to these men are the one or 
 two "milkers" found in every legislature. These, under the guise of 
 benevolence, introduce a bill " to further secure the rights of stockholders 
 in insurance companies," or some kindred title, hiding beneath the most 
 innocent phrases the most violent measures. This brings all the interested 
 corporations to the capital with the pap, and the venal legislator fattens to 
 bursting. Unfortunately legislation is often a marketable commodity. 
 
 Another class of vicious legislation is due to carelessness. The vol- 
 umes of repealed and amended laws are tokens of this thoughtlessness. 
 In 1873 the legislature of New York passed a charter for the metropolis, 
 and the repealing clause threatened a general jail delivery. The governor 
 refused to sign the measure until an amendment rectified this careless 
 error. In 1882 the legislature of the same state passed a municipal code, 
 and a whole page of the original was omitted from the copy sent to the 
 executive for approval. Through a legislative blunder the supreme court 
 of Ohio was robbed of a large portion of its jurisdiction two years ago, 
 and an act of a special session of the legislature was required to override 
 the mistake. A repealed or amended law is sometimes an indication of 
 a change in conditions ; more often it is a confession of weakness or of 
 shortsightedness. Our tendency constantly to amend makes laws shifting 
 as the sands. 
 
 And a final group of vicious laws are due to partisanship. The machine 
 in American politics is the merging of all functions of government in one 
 control. W'hile I believe that the popular estimates of party tyranny are 
 somewhat overdrawn, there are yet perennial occasions for a general re- 
 vulsion of feeling. The party lash is too often substituted for public 
 
THE LEGISLATURE 5 1 
 
 conscience. When a United States senator is to be elected, party servil- 
 ity reaches its extreme. The candidates for the Senate are announced 
 before the legislators are nominated, and the senatorial contest is no 
 more confined to the state capitol than the presidential elections to the 
 room wherein the electors meet. 
 
 The blood-bought Goebel Law of Kentucky, allowing the governor to 
 appoint all local-election officials, and permitting the legislature to can- 
 vass election returns and reject the vote of any county, with no power of 
 review in any court, is an example of the vicious extreme to which parti- 
 sanship leads. In 1901 West Virginia passed ten "ripper" bills, giving 
 the incoming governor the power to appoint all the boards of control of 
 all the public institutions in the state. So are often created new and un- 
 necessary offices and places, to serve as nests for the faithful party 
 workers. The payrolls of our states, like those of our cities, are padded 
 for the benefit of the party henchmen. The evil is multiplied when the 
 machine allies itself to corrupt and powerful corporate interests. This 
 is not infrequent. Every state has fought such unholy alliances. 
 
 The method used by party leaders to bring " pressure " to bear on a 
 member, or to " lead him to see the light," are as amusing as they are 
 diverse and original. I know of an instance where the wife of a reluctant 
 legislator was kidnaped and held a prisoner for four hours in the rooms 
 of a man who aspired to become, and did become, a United States sen- 
 ator. The political influence over the wife proved as potent as her influ- 
 ence over the husband. This winter, in one of our legislatures, it became 
 necessary to put through a measure which was labeled " purely political, 
 and therefore not a question of conscience," — an unusual inference. A 
 boy member of the legislature happened to have a conscience which was 
 somewhat political in its sensitiveness, and refused to line up. His father 
 was called to the capital, and parental persuasion succeeded where political 
 power failed. 
 
 And finally, in this long list of laws there are always a few fool meas- 
 ures. There is at least one fool in every legislature. He imagines him- 
 self a reformer. He slips in his bill and trades and logrolls for its passage. 
 Thus in Nebraska the reformer wanted to prohibit women from wearing 
 corsets and bloomers. This was clearly class legislation, for the title 
 made no mention of men. In Pennsylvania he wanted to prohibit treat- 
 ing. In Kansas he wished to repeal the constitution and enact the Dec- 
 alogue in its stead. In Indiana he desired benevolently to change the 
 mathematical ratio of 3.1416 to 3.15 because it was " easier to calculate." 
 And in Michigan he wished to forbid the wearing of tights in circuses 
 and theaters, and the use of every language except English on the menus 
 of hotels and restaurants. This last bill had its origin in the woeful ex- 
 perience of a country member who visited Detroit for the first time. He 
 confessed that he could not read the menu at the hotel whither he had 
 resorted for his dinner. So he blindly ordered twelve dishes, " and I '11 
 
52 
 
 AMERICAN STATE GOVERNMENT 
 
 be hanged if seven of 'em wer'n't potatoes," he divulged, as he explained 
 his reform bill. In Arkansas three years ago the fool member actually 
 succeeded in passing a drastic antitrust law which prohibits any corpora- 
 tion which is a member of any pool or trust in any part of the world 
 from doing business in the state. The members who passed this all- 
 reaching measure probably formed ^.posse comitatus to insure its efficiency. 
 
 These proceedings betray the common weaknesses of mankind lurking 
 in the hearts of our legislators. The creation of a party, the legislator is 
 by nature partisan ; the creature of a boss, he is by nature servile ; a 
 lover of fame or of wealth, he naturally quails before temptation ; a man 
 from the normal walks of life, with neither special training nor special 
 unfitness, he is amenable to the normal influences that commonly affect 
 human action. There is no need of calling him names. He is the result 
 of our system of politics. The college professor may call him " a country 
 squire " or '" a labor demagogue." The publicist may rail at " a body of 
 boys, and inexperienced, unknown farmers." The preacher may hurl 
 theological epithets at " the puppet tool of the damned boss " ; the fact 
 remains that the average legislature represents the average American 
 human being. His pathology is not unique. We must not be so hasty in 
 laying all the blame for vicious and careless legislation at the door of our 
 representatives. A vast deal of the fault lies elsewhere. 
 
 In the first place we are law mad. We look upon law as a cure-all. If 
 you want an index to all human ills, read the table of contents of any 
 statute book. The legislature is not to be primarily blamed for this. It 
 is in the air ; the people demand this multiplicity of laws. And it certainly 
 is an adventitious budding of our political tree, which the forefathers, in 
 the planting, did not contemplate. The theory of the constitutional fathers 
 was that the government should be one of limited powers. They be- 
 lieved that the people should be let alone, to work out their own sal- 
 vation. They did not believe that the legislature could create values, 
 morals, and happiness. We say of the commonwealth, " Let the legis- 
 lature work out your salvation, and while it is doing so, fear and tremble." 
 This seems to be an American mania, this craze for law collecting, like 
 our craze for bric-a-brac. In no liberal country in Europe are there so 
 many laws as in our country ; in none are laws more burdensome and 
 less conscientiously enforced. No European health commission has such 
 arbitrary powers as an American board of health. While we are filling 
 quarto pages with legislative rubbish, let us recall Tacitus : " When a 
 state is most corrupt, then the laws are most multiplied." 
 
 In the second place we have developed the deplorable habit of special 
 or private legislation, and this habit we are carrying to a silly extreme. 
 Over one half of the laws annually passed are local or special in their 
 nature. Utterly insignificant as are these backyard measures, they are 
 enacted at the demand of a clamoring constituency, and rob the legisla- 
 ture of its time and strength. A member's reputation is multiplied by 
 
THE LEGISLATURE 53 
 
 the number of such laws that he can pass for his neighbors. I know of 
 one who fathered twenty of them successfully, from babyhood to matur- 
 ity, in one year. His constituency rewarded him for this commendable 
 energy by electing him to higher office. 
 
 Everybody with a grievance or an ambition hastens to the legislature. 
 The member feels called upon to look first after the interests of his con- 
 stituents, afterwards to the interests of the state at large. He uses these 
 private bills as a lever upon which to raise his prestige as a statesman ; 
 as a medium of exchange for legislative values, trading with his fellow 
 lawmakers for the passage of their private bills. These measures receive 
 practically no attention from committees. If the people of the district 
 want them, why that settles it. They know their business. So the whim 
 of a farmer or the wish of a neighborhood becomes glorified into a statute. 
 
 This custom is made possible by another American custom, that of 
 district representation. Why should a man live in a given comer in order 
 to be able to make laws for a state ? Of course the reason is that that 
 particular district feels entitled to special legislation. The two customs 
 are twins, one should perish with the other. 
 
 In the third place we have not yet learned to differentiate entirely the 
 functions of legislation and administration. When the evolution which 
 dictates the total separation of these functions is completed, then separate 
 organs of administration will be developed, as they are in France and 
 Germany. But meanwhile our state legislatures persist in confusing the 
 administration of state institutions with the making of law. This practice 
 is baneful alike to institutions and departments of government, and to 
 the purely legislative work of the assembly. 
 
 In the fourth place we seem entirely oblivious to the forward strides 
 of our republic, and to the fundamental principle that government must 
 mzxch pari passu with progress. We seem to forget that, since the days 
 of the first thirteen states, our population and social and economic condi- 
 tions have undergone wonderful changes. Then society was agricultural 
 and wealth individual ; now society is urban and wealth corporate. The 
 change in needs and the multiplicity and diversity of emergencies which 
 arise in this complex society we meet with legislative methods which were 
 suited to the simple needs of a sparsely settled agricultural community. 
 
 The most potent force in our economic life is the corporation. This 
 creature of law has become the creator of law. This shifting of property 
 obligation from the individual to the aggregation necessitates a new 
 conception of duty. But have you ever seen evidences of a corporate 
 conscience ? All branches of our public law have been undergoing a slow 
 metamorphosis, because of the entrance of the corporation into our legal 
 environment. So must all branches of our private law become modified. 
 The corporation has found a permanent place in our business life, but we 
 have not yet formed for ourselves a permanent safeguard against its con- 
 stant intrusions upon private rights. We have retained the simple methods 
 
54 AMERICAN STATE GOVERNMENT 
 
 of a colonial legislature, while society has proceeded with giant strides 
 toward the goal of corporate property and responsibility. It is not an 
 impossible task for a corporation to own a legislature. More than one 
 railroad corporation has successfully accomplished this task of govern- 
 ment ownership. These great artificial beings have many times set out 
 to elect a legislature in consonance with their desires. They have also 
 many times secured the control of a legislature after its election. We can- 
 not excuse corruption, neither ought we to excuse a society that meets such 
 novel and potent conditions with such primitive and impotent methods. 
 
 There remain the two usual accusations, heard wherever a legislature 
 is discussed : these men lack ability and experience, and they also lack 
 the time necessary for deliberate and judicious action. 
 
 It is true that the average representative is not a man of unusual abil- 
 ity. Men of ability cannot usually be persuaded to leave their congenial 
 occupations and subject themselves to the harsh criticisms of an unfeel- 
 ing public, and to the rigors of a political contest. I value among my 
 acquaintances a man of culture and ability who was requested by his 
 neighbors to allow his name to be used as a candidate for the legislature. 
 He was obliged to refuse, for the pay the state allowed was not enough 
 to meet his expenses as a candidate and legislator. He would have to 
 suspend his work and hire some one to take his place during the session. 
 It is only in a crisis that a citizen should be compelled to give his fortune 
 and his livelihood to the state. We do not pay our legislators a living 
 wage, certainly not a wage that can attract ability. We do not honor 
 our lawmakers, but rather it is a term of ridicule and jest among the 
 cultured classes to be known as a member of the legislature. 
 
 The result of this attitude of the state is perfecdy natural. The men 
 of ability avoid the office. About 75 per cent of the members seek 
 the place. They are of a kind who relish the opportunities that ac- 
 company it. Some are available because they are " old soldiers " from 
 the Civil War, others because they are young soldiers from the Spanish 
 War. Some have been party servants, and this is their reward for faith- 
 ful service. Some '" voted for Lincoln." A few are the incarnation of 
 radical ideas. And still fewer have only the recommendation of a quiet, 
 useful life filled with good deeds and honest, plain thinking. Of the four 
 legislatures tabulated above, I can count a scant dozen men in each body 
 who are really men of superior ability or experience. The rest are not 
 necessarily mediocre, but fairly represent the average intelligence, honesty, 
 and ability of the community. There are a few young men who seek the 
 position as a stepping-stone to higher political honors. A few of these 
 subsequently rendered the nation valuable service ; some of our wisest 
 statesmen received their training in these preparatory schools of legisla- 
 tion. A large number graduate into Congress. In the national House 
 of Representatives 37 J per cent of the members were thus prepared, 
 and of the Senate 44^,7 per cent. 
 
THE LEGISLATURE 55 
 
 In 1777 it was written into the constitution of Vermont : " The House 
 of Freemen of this state shall consist of persons most noted for wisdom 
 and virtue, to be chosen by ballot, by the freemen of every town in 
 this state." 
 
 Time and conditions have lowered our standard. We are content with 
 average wisdom and average virtue ; and in years of apathy virtue and 
 wisdom are quite forgotten, and we elect whom the machine nominates. 
 Rotation in office, party control of nominating machinery, the ambitions 
 of corporations and of party leaders, — these are the forces that move 
 the pawns on the legislative chessboard. Under the political conditions 
 which the majority of the voters tolerate, can we expect the legislature 
 of a state to be composed of the best men of the community .' And we 
 know that the real danger of the democracy is the withdrawal of intelligent 
 and humble men from public duties. 
 
 That the legislature lacks time is axiomatic. The community and con- 
 ditions rob the legislator of his hours. It is not the willful sin of the 
 representative that he gives heed to the thousand voices that constantly 
 call to him from his constituents. From every hamlet in the state, from 
 every township and city, from every corporation office, flows a stream of 
 bills to the honorable representatives of the various districts, and on the 
 mad current of this stream are rushed forward bills, members, and pub- 
 lic. The veto of the governor and the efforts of the few able members 
 cannot dam this annual overflow of our legislative Nile. Unfortunately 
 the sUt that the recession of opinion leaves after the adjournment of the 
 legislature reeks with the unwholesome odor of bad laws, of foolish laws, 
 and of vicious laws. This deluge pours forth from the people ; it is not 
 the creation of the members. 
 
 These are the conditions from which modern legislatures and their 
 work arise. 
 
 Instead of setting ourselves to the task of bettering the conditions and 
 making scientific legislation possible, we have turned elsewhere for relief. 
 First, we have tried to minimize legislation by biennial sessions, and some 
 have even suggested quadrennial sessions, and standing commissions for 
 enacting orders which should stand until the meeting of a decennial leg- 
 islature. This tendency is not in consonance with the spirit of a republic. 
 The evil we combat is not legislation, but unwise legislation. Legislation 
 is a vital function of the body politic. And legislation by representation 
 is the life blood of a republic. We dare not allow the legislative organ to 
 atrophy ; we must help it to greater specialization, and thus follow the 
 laws of evolution. The first step in this development was the committee 
 system. That is now outgrown. The next step must be toward a still 
 greater degree of specialization. The function of the lobby must be 
 absorbed by legitimate legislative organs. 
 
 Second, we have become accustomed to view the courts and not the 
 law as the bulwark of our freedom. The courts stand between the people 
 
56 AMERICAN STATE GOVERNMENT 
 
 and the people's legislature. They ward off the evil effect of pernicious 
 laws. It is anomalous that a free people should need a court of justice 
 to save it from the destructive forces of its chosen lawmakers. We are 
 drifting from the Sa.\on toward the Roman ideal, when the court becomes 
 both the lawmaker and the judge. 
 
 Our theory of legislation by representation is not wrong, but our prac- 
 tice of the theory is antiquated. Yet even with our present crowded 
 calendars, and lobbies, and party bosses, and corporate omnipotence, 
 noble results can be attained if the people are not supine. After all, it 
 all lies with the people. They can dignify the office of lawmaker by 
 choosing only the honest and the able ; they can degrade it, they have 
 degraded it, by choosing the average, the mediocre, the vicious, and the 
 foolish. All of our political evils feed upon the indifference of the people. 
 Popular demand is the ultimate source of good law ; popular indifference 
 is the immediate source of bad law. 
 
 FINANCIAL PROCEDURE IN LEGISLATURES » 
 
 By Ernest L. Bogart 
 
 [The methods of financial legislation in the state legislatures are full of con- 
 fusion and are indeed in urgent need of systematization. There is a growing 
 tendency to make permanent appropriations for certain administrative and 
 educational tendencies of the state. In some states the disadvantages and dan- 
 gers of the lack of concentration have been recognized and steps have been 
 taken to bring all financial legislation under the supervision of one committee.] 
 
 In New York the Committee on Ways and Means prepares two bills, — 
 the annual appropriation bill and the supply bill. Of these the former 
 includes the permanent appropriations, such as the salaries of the state 
 officials, fixed appropriations to state institutions, etc. ; the supply bill 
 includes indeterminate and changing items of expenditure, such as appro- 
 priations for improvements on the canals, new state buildings, etc. The 
 grants made by the appropriation bill are not good until the following 
 October, while those made by the supply bill may be drawn upon imme- 
 diately after its passage. As noted before, the general appropriation bill 
 is passed toward the beginning or middle of the session, or at least comes 
 up for discussion by that time ; the supply bill is usually printed at the 
 end of the session, just in time to meet the constitutional requirements, 
 and is then rushed through without due examination or debate. It is 
 therefore never possible to determine exactly what the appropriations of 
 the legislature have amounted to until the very end of the session ; or, 
 indeed, even then, for many bills making appropriations of the public 
 
 1 From an article in the Annals of the American Academy, September, 1896. Reprinted 
 by permission. 
 
THE LEGISLATURE 57 
 
 money are every year left in the hands of the governor after the adjourn- 
 ment of the legislature, to receive his signature. Not until these bills are 
 finally disposed of, therefore, can the amount of the year's appropriations 
 be exactly determined. For all practical purposes, however, the calcula- 
 tion made at the end of the session suffices. 
 
 There are some portions of the public expenditure which are not de- 
 pendent on the annual grants of the legislature, being provided for by 
 statutes that run without limit of date. 
 
 In the ordinary financial transactions of government it is the custom to pre- 
 pare a budget giving all the receipts and then appropriating these receipts by 
 grant among fixed objects of expenditure. Not so in the United States. In 
 most of our commonwealths there is no general table of receipts to be appro- 
 priated by legislative grant for definite purposes. On the contrary, the receipts 
 are divided among a number of separate accounts called funds, and the expenses 
 again are defrayed out of these various fund receipts, each of these accounts 
 being kept separate from the others.^ 
 
 The number of funds is entirely arbitrary, ranging from two to forty- 
 six. Sometimes new funds are added by every legislature when it is de- 
 sired to take certain classes of receipts out of the general revenue and 
 to place them in fixed categories beyond the reach of legislative whim. 
 In Georgia and Maine we find a number of so-called funds which apply 
 only to expenses and simply denote so many purposes of appropriation. 
 
 The proportion of those parts of the public expenditures and receipts 
 which do not require to be legislated upon annually, but which are pro- 
 vided for by statutes which run without limit of date, differs greatly in 
 different states. 
 
 There is no apparent rule in the matter which differentiates the com- 
 monwealths according to either age or geographical position, unless it be 
 that the older commonwealths provide for their expenditure, and the newer 
 commonwealths for their receipts, by means of permanent statutes rather 
 than by current legislation. In Kansas, Mississippi, Nebraska, Nevada, 
 Tennessee, Texas, and Washington all of the commonwealth expenditures 
 are made in virtue of current legislation ; in Indiana, Kentucky, Pennsyl- 
 vania, South Dakota, and Utah almost all are so made; in Michigan 
 and Montana three fourths ; in Minnesota and North Dakota about three 
 fifths ; in California, Colorado, and West Virginia one half. On the other 
 hand. South Carolina and Vermont provide for nearly all of their expend- 
 itures by permanent statutes ; Iowa and New Hampshire so provide for 
 three fourths of theirs. When we turn to the revenues of the common- 
 wealths and inquire how that is determined, we find a larger proportion 
 of commonwealths establishing revenue by means of statutes which run 
 without limit than was the case with the public expenditures. North 
 Dakota, Oklahoma, Pennsylvania, and West Virginia obtain all their com- 
 monwealth receipts in virtue of permanent statutes ; Kentucky, South 
 1 E. R. A. Seligman, Finance Statistics of the American Commonwealths, p. 5. 
 
58 AMERICAN STATE GOVERNMENT 
 
 Dakota, and ^^'ashington raise almost all of theirs thus ; Vermont and 
 Massachusetts fourth fifths and two thirds of theirs respectively ; Colo- 
 rado and South Carolina each one half. On the other hand, California, 
 Indiana, Kansas, Mississippi, Nebraska, and Tennessee raise all revenue 
 by means of current legislation; Michigan all but educational funds; 
 Nevada and Utah almost all thus ; Montana and New Hampshire three 
 fourths and two thirds respectively of theirs. 
 
 " The General Fund is found in all the commonwealths, and corre- 
 sponds to the budget of most governments. It consists of all the ordinary 
 receipts not especially appropriated to other funds, and thus serves as a 
 sort of dragnet of commonwealth finance." ^ It will thus be seen that it 
 is only over the General Fund that the legislature can exercise unrestrained 
 control, and in proportion as the amount of revenue which flows into this 
 is diminished by permanent grants to other funds, just to that extent is 
 the financial independence of the legislature decreased. This is especially 
 true of those commonwealths where the rate of taxation is limited by 
 statute or constitutional provision, since in these the amount of state rev- 
 enue is fixed, and can grow only with the increase in value of the taxable 
 property of the state, or by finding new sources of revenue. 
 
 The main source of revenue for commonwealth purposes is the general 
 property tax. Usually a certain percentage of the general taxes or a 
 special commonwealth tax is devoted to the support of the free public 
 schools ; in a number of commonwealths a poll tax of small amount is 
 levied for this or a similar purpose.^ In the same manner the proceeds 
 of other taxes or sources of revenue are devoted to certain specific ends, 
 and are removed entirely from the power of the legislature to change 
 them. Thus, though the legislature may nominally dispose of large sums 
 and make large grants to various objects, their real authority is very 
 much circumscribed. This is especially true where any large part of the 
 revenue is derived from trust or investment funds, and particularly so if 
 the proceeds of these funds are devoted by statute to some specific object. 
 Appropriations made under such statutes are placed on the annual appro- 
 priation bills and are submitted to the finance committees who have, how- 
 ever, no power to materially alter them. They can, at most, run up or 
 down the scale of a certain number of appropriations which must in any 
 case be kept up. No money can be drawn from the public treasury ex- 
 cept upon appropriation made by the legislature, so all grants must be 
 acted on at least biennially. 
 
 When the appropriation and supply bills are introduced to the assembly, 
 which is usually done on a date before determined upon, the assembly 
 immediately resolves itself into committee of the whole. The bills are then 
 considered item by item, and section by section, criticisms and suggestions 
 being very freely offered by members of the committee. The bills are 
 defended by the chairman of the Committee on Ways and Means, and 
 
 1 Seligman, Finance Statistics, p. 7. 2 See Seligman for list of funds, etc. 
 
THE LEGISLATURE 59 
 
 explanations of new appropriations or changes in the old are made by 
 him. It is always the endeavor of the Ways and Means Committee to have 
 their bills passed with as little alteration as possible, and to this end they 
 devote all their energies. It shows not only that they enjoy the confi- 
 dence of the legislature, but also that they are in touch with their con- 
 stituents and familiar with their needs, and upon this they particularly 
 pride themselves. 
 
 This is the nearest approach to the responsible English ministry, upon 
 the acceptance of whose budgets depends their stay in office, which we 
 possess. It is, however, less a matter of responsibility with our Committee 
 on Ways and Means than a desire to make political capital out of it ; 
 to be able to point to the record made as chairman of that committee 
 when putting forward a claim to the nomination for governor next term. 
 
 The assembly is invariably delayed with amendments or with bills con- 
 taining new appropriations by individual members. Members with pet 
 little appropriation bills of their own endeavor to have them accepted by 
 the Committee on Ways and Means, and to have them inserted in the 
 supply bill, as they then stand a better chance of being passed than if 
 they were exposed, alone and unsupported, to the fire of criticism of the 
 House. Many of the states have inserted provisions in their constitutions 
 forbidding the inclusion in the general appropriation bill of any appropria- 
 tions except those " for the ordinary expenses of the executive, legislative, 
 and judicial departments of the state, interest on the public debt, and for 
 public schools. All other appropriations shall be made by separate bills, 
 each embracing one subject." This provision prevents also the addition 
 of " riders " to the general appropriation bills. It is found in the consti- 
 tutions of Alabama, Arkansas, California, Colorado, Georgia, Illinois, 
 Missouri, Montana, North Dakota, Pennsylvania, South Dakota, West 
 Virginia, and Wyoming. A new section was inserted in the revised con- 
 stitution of New York, which aims to prevent this abuse in that state. It 
 is as follows : " No provision or enactment shall be embraced in the an- 
 nual appropriation or supply bill, unless it relates specifically to some 
 particular appropriation in the bill ; and any such provision or enactment 
 shall be limited in its operation to such appropriation." 
 
 Although in accordance with a long-established precedent, bills appro- 
 priating money usually originate in the lower branch of the legislature, 
 the Senate has always reserved to itself the fullest possible privileges in 
 the matter of amendments to these as well as all other bills. The Senate 
 invariably makes amendments, if for no other reason than to show its 
 right to do so, and to justify the popular behef that the Senate is a more 
 competent body than the assembly. There is not that great difference 
 of opinion in the two branches, however, as to the proper size of the 
 appropriations in our state legislatures which distinguishes the passage 
 of the federal appropriation bill by Congress. In the state legislature it 
 is difficult to say which is the more liberal or economical, though in the 
 
6o AMERICAN STATE GOVERNMENT 
 
 long run the Senate is probably the more conservative. As has been 
 noted before, only four states have constitutional provisions as to the 
 place of origination of appropriation bills. When such bills reach the 
 Senate after having been sent from the assembly, they are referred first 
 to the Finance Committee, and then reported by it to the Senate. Their 
 treatment in the Senate is similar to that in the lower branch, and after 
 passing the Senate they are returned with their new figures and amend- 
 ments to the assembly. 
 
 In case the bills as returned are not accepted by the assembly, a con- 
 ference committee is appointed of members from each House to adjust 
 the differences. They seldom fail to agree, and more often than not adopt 
 the assembly's figures in the bill they finally report. It happens very 
 infrequently that supplies are refused because of a failure to agree. The 
 same mode of procedure is followed in all the states in this respect. 
 
 There is not the same chronic complaint of underappropriations heard 
 in our state legislatures as in the case of Congress, where a deficiency 
 bill is to be considered as regularly as the annual session opens. In fact, 
 there is greater danger of too large than of too small appropriations. 
 Toward the end of the session, however, a supplemental supply bill is 
 often introduced to make provision for deficiencies under the other 
 grants or provide for new items of appropriation. 
 
 Such is, in brief, the method of dealing with general appropriation bills 
 in the New York state legislature. Far different is the treatment of in- 
 dividual appropriation bills introduced by members. As soon as the com- 
 mittees are organized any member can introduce bills, and the right is 
 practically without limit until toward the close of a session ; and then only 
 because of the physical impossibility on the part of the committees of con- 
 sidering new bills and the practical certainty that they will be " smothered" 
 if they are referred. Private appropriation bills are not necessarily referred 
 to the Committee on Ways and Means, as might be expected, but to the 
 committee on canals, cities, or what not, for which the appropriation is 
 designed. In other words, if a bill making an appropriation for deepen- 
 ing the Erie Canal in a certain locality were introduced by a member, it 
 would be referred to the Committee on Canals and reported by them to 
 the House. As such a committee is made up of men who live along the 
 borders of the canal and who are pledged to their constituents to spend 
 money on it, there is little chance of the bill being unfavorably reported. 
 It is chiefly in connection with these bills that " logrolling," as this ex- 
 change of political favors is called (" you roll my log and I '11 roll yours "), 
 occurs, and of course the rooms of these committees are the chief scene 
 of this sport. Mississippi is the only state whose constitution recog- 
 nizes the existence of this evil and attempts to prohibit it by legislative 
 
 1 In a recent legislature one of the members, on being asked how he was going to vote 
 on a certain rather questionable measure making a large grant of public money for purely local 
 purposes, replied that " he had never voted against an appropriation bill during his entire 
 term and he would not vote against this." And he did not stand alone in this position. 
 
THE LEGISLATURE 6 1 
 
 enactment. " Logrolling " is there defined as a felony, punishable by 
 imprisonment of from one to ten years. 
 
 Hearings, usually anything but formal, are given to interested parties 
 on proposed bills, and it is often possible to influence the chairman of a 
 committee to report favorably. They are seldom averse to so reporting 
 appropriation bills. When a day is appointed by a committee for hearings 
 on a proposed bill, notice is given to the advocates of the bill ; and if, by 
 any happy accident,-' adversaries to the bill know that a measure is pend- 
 ing which they wish to oppose, they also have a chance to be heard. 
 There is no attempt made to take proof, and the treatment of bills at 
 these hearings is anything but judicial. If the bill involves large interests, 
 the more effective work is done by trained lobbyists. After a bill has 
 reached the legislature, too, its course may be and usually is favored by 
 lobbying. So great had this latter evil become in some of our states that 
 in three of them — California, Georgia, and Oregon — lobbying was de- 
 clared a felony. In New York it is forbidden on the floor of the House I 
 
 The length of time for which appropriations are granted and during 
 which they are available varies in different states. In New York, and in 
 eight other states, the constitution provides that all payments under any 
 specific appropriation must be made within two years of the passage of 
 such appropriation act. All balances then unexpended revert, usually, to 
 the General Fund, unless reappropriated. In sixteen other commonwealths 
 the period is limited by legislative enactment to two years, or a similar 
 period terminating after the opening of the next session of the legislature. 
 In six of the commonwealths appropriations are good until they are ex- 
 hausted or until the act making them is repealed. I could find no men- 
 tion of the subject in either the constitutions or statute law of the remain- 
 ing commonwealths, so that we may infer that no time limit is set to the 
 period of their availability. 
 
 METHODS AND CONDITIONS OF LEGISLATION = 
 By James Bryce 
 
 I. The demand for legislation has increased and is increasing both 
 here and in all highly civilized countries. 
 
 II. The task of legislation becomes more and more difficult, owing to 
 the complexity of modern civilization, the vast scale of modern industry 
 and commerce, the growth of new modes of production and distribution 
 
 1 A gentleman, whose business requires him to keep himself posted on the various meas- 
 ures before the legislature, informs me that he has for years paid a large annual sum to a 
 certain man in Albany, whose sole business it is to keep track of all bills mtroduced m the 
 legislature and notify his client when any which he considers injurious to the latter's mterests 
 are brought before the committees. This man has a large clientage, by whom he is paid for 
 work which should be performed by the legislature. He keeps a large staff of clerks busy 
 and draws a large income from this business. 
 
 2 From an address to the New York Bar Association, 1908. 
 
62 AMERICAN STATE GOVERNMENT 
 
 that need to be regulated, yet so regulated as not to interfere with the 
 free play of individual enterprise. 
 
 III. Many of the problems which legislation now presents are too 
 hard for the ordinary members and even for the abler members of legis- 
 lative bodies, because they cannot be mastered without special knowledge. 
 (It may be added that in the United States a further difficulty arises 
 from the fact that legal skill is often required to avoid transgressing some 
 provision of the federal or a state constitution.) 
 
 TV. The above conditions make it desirable to have some organized 
 system for the gathering and examination of materials for legislation, and 
 especially for collecting the laws passed in other countries on subjects of 
 current importance. 
 
 V. To secure the pushing forward of measures needed in the public 
 interest, there should be in every legislature arrangements by which some 
 definite person or body of persons becomes responsible for the conduct 
 of legislation. 
 
 VI. Every modem legislature has more work thrown on it than it can 
 find time to handle properly. In order, therefore, to secure sufficient 
 time for the consideration of measures of general and permanent appli- 
 cability, such matters as those relating to the details of administration 
 or in the nature of executive orders should be left to be dealt with by 
 the administrative department of government, under delegated powers, 
 possibly with a right to disapprove reserved to the legislature. 
 
 VII. Similarly, the more detailed rules of legal procedure ought to be 
 left to the judicial department or some body commissioned by it, instead 
 of being regulated by statute. 
 
 VIII. Bills of a local or personal nature ought to be separated from 
 bills of general applicability and dealt with in a different and quasi-judicial 
 way. 
 
 IX. Arrangements ought to be made, as, for instance, by the creation 
 of a drafting department connected with a legislature or its chief com- 
 mittees, for the putting into proper legal form of all bills introduced. 
 
 X. Similarly, a method should be provided for rectifying in bills before 
 they become law such errors in drafting as may have crept into them 
 during their passage. 
 
 XI. When any bill of an experimental kind has been passed, its work- 
 ings should be carefully watched and periodically reported on as respects 
 both the extent to which it is actually enforced (or found enforcible) and 
 the practical results of the enforcement. A department charged with the 
 enforcement of any act would naturally be the proper authority to report. 
 
 XII. In order to enable both the legislature and the people to learn 
 what the statute law in force actually is, and thereby to facilitate good 
 legislation, the statute law ought to be periodically revised, and, as far as 
 possible, so consolidated as to be brought into a compact, consistent, and 
 intelligible shape. 
 
THE LEGISLATURE 63 
 
 LEGISLATIVE REFERENCE DEPARTMENT ^ 
 
 By Charles McCarthy 
 
 Legislative Reference Work 
 
 The Legislative Reference Department of the Wisconsin Library 
 Commission was established in a small way in 190 1. It became appar- 
 ent at once that the demands of this library were of a peculiar nature, 
 which could not be readily met by the ordinary library methods or by the 
 ordinary library material. 
 
 A plan was devised which has been since carried out as far as the 
 resources given by the legislature would permit. We found that there 
 was no cooperation between the different states of this Union in the 
 matter of getting the history of legislation. We found that there was a 
 constant demand for a history of what had occurred in Europe or in any 
 state of the Union, upon a certain subject of interest to the people of 
 this state. We tried to supply this demand by getting such indexes of 
 up-to-date legislation as were published, by getting the bills from other 
 states as well as the documents explanatory of legislative movements in 
 other states, and arranging these under the subjects so they would be 
 immediately at the service of all who desired to see them. We soon found 
 that even this material did not solve the problem. We found it necessary 
 to clip newspapers from all over the country and to put the clippings in 
 book form, to index them carefully, and put them also with the subjects. 
 We went over our own bills and carefully indexed them back for four 
 sessions, and by noting the subjects which were contained in those bills 
 we anticipated the problems with which the legislature had to grapple. 
 These problems or special subjects we carefully worked up through the 
 most minute detail. It was comparatively easy to get laws and court 
 cases, but it was a far harder job to find how those laws were adminis- 
 tered, and to find the weaknesses in them and to note as far as possible 
 how they could be adapted to our. use here. 
 
 Our short experience has taught us many things. We have been con- 
 vinced that there is a great opportunity to better legislation through work 
 of this kind, — that the best way to better legislation is to help directly 
 the man who makes the laws. We bring home to him and near to him 
 everything which will help him to grasp and understand the great eco- 
 nomic problems of the day in their fullest significance, and the legislative 
 remedies which can be applied and the legislative limitations which exist. 
 We must take the theory of the professors and simplify it sq that the 
 layman can grasp it immediately and with the greatest ease. The legis- 
 lator has no time to read. His work is new to him, he is beset with 
 routine- work, he has to have conferences with his friends upon political 
 
 1 From a bulletin of the Wisconsin Legislative Reference Department, 1908. 
 
64 AMERICAN STATE GOVERNMENT 
 
 matters, he is beset by office seekers and lobbyists, and he has no time to 
 study. If he does not study or get his studying done for him, he will 
 fall an easy prey to those who are looking out to better their own 
 selfish ends'. Therefore we must shorten and digest and make clear all 
 information that we put within his reach. 
 
 We must, first of all, get near to the legislator, even as the lobbyist 
 does. I do not mean that we must use the evil methods of the lobbyist, 
 but we must win the legislator's confidence and his friendship and under- 
 stand him and his prejudices. We must not be arrogant, presumptive, 
 opinionated, or dogmatic. We are dealing with men who are as a rule 
 keen and bright, who as a rule have made a success of business life. We 
 must always remember that we are but clerks and servants who are 
 helping these men to gather data upon things upon which we have 
 worked, as they have worked at their business. We must be careful to 
 keep our private opinions to ourselves and let the evidence speak for 
 itself. We are not doing this work to convert, but to help and to clear 
 up. No busy man can keep track of legislation, and especially complex 
 legislation of our modem times, in one state, let alone half a hundred 
 states. It is our work to do that, — to find out the history of particular 
 pieces of legislation, to find out how a law works, to get the opinions of 
 just lawyers, professors, doctors, publicists, upon these laws and to put 
 their opinions, well digested, in such form that it can be readily used and 
 understood by any legislator even in the whirl and confusion of the 
 legislative session. 
 
 Some essentials in carrying on this work may be summarized briefly : 
 
 1. The first essential is a selected library convenient to the legislative 
 halls. This library should consist of well-chosen and selected material. 
 A large library is apt to fail because of its too general nature and be- 
 cause it is liable to become cumbersome. This library should be a deposi- 
 tory for documents of all descriptions relating to any phase of legislation 
 from all states, federal government, and particularly from foreign coun- 
 tries like England, Australia, France, Germany, and Canada. It should 
 be a place where one can get a law upon any subject or a case upon any 
 law very quickly. It is very convenient to have this room near a good law 
 library. Books are generally behind the times, and newspaper clippings 
 from all over the country, and magazine articles, court briefs, and letters 
 must supplement this library and compose to a large extent its material. 
 
 2. A trained librarian and indexer is absolutely essential. The material 
 is largely scrappy and hard to classify. We need a person with a liberal 
 education, who is original, not stiff, who can meet an emergency, and 
 who is tactful as well. 
 
 3. The material is arranged so that it is compact and accessible. Do 
 not be afraid to tear up books, documents, pamphlets, clippings, letters, 
 manuscripts, or other material. Minutely index this material. Put it under 
 the subjects. Legislators have no time to read large books. We have no 
 
THE LEGISLATURE 65 
 
 time to hunt up many references in different parts of a library. They 
 should be together as far as possible, upon every subject of legislative 
 importance. 
 
 4. Complete index of all bills which have not become laws in the past 
 should be kept. This saves the drawiiig of new bills and makes the 
 experience of the past cumulative. 
 
 5. Records of vetoes, special messages, political platforms, political 
 literature, and other handy matter should be carefully noted and arranged. 
 Our legislator often wants to get a bill through, and we must remember 
 that he often relies as much upon political or unscientific arguments as 
 we do upon scientific work. He should be able to get hold of his political 
 arguments if he wants, and the political literature from all parties upon 
 all questions should be kept near at hand. 
 
 6. Digests of laws on every subject before the legislature should be 
 made and many copies kept. Leading cases on all these laws and opinions 
 of public men and experts upon the working of these laws or upon the 
 defects, technical or otherwise, should be carefully indexed, and, as far as 
 possible, published in pamphlet form, with short bibliographies of the 
 subjects most before the people. 
 
 7. The department must be entirely nonpolitical and nonpartisan or 
 else it will be worse than useless. If you have the choice between estab- 
 hshing a political department and no department at all, take the latter. 
 
 8. The head of the department should be trained in economics, politi- 
 cal science, and social science in general, and should have also a good 
 knowledge of constitutional law. He should, above all, have tact and 
 knowledge of human nature. 
 
 9. There should be a trained draftsman connected with the depart- 
 ment, — a man who is a good lawyer and something more than a lawyer, 
 a man who has studied legislative forms, who can draw a bill, revise a 
 statute, and amend a bill when called upon to do so. Such a man work- 
 ing with this department and the critical data which it contains will be 
 absolutely essential. 
 
 10. Methods, (a) Go to the legislator, make yourself acquainted with 
 him, study him, find anything he wants for him, never mind how trivial, 
 accommodate him in every way. Advertise your department. Let every 
 one know where it is and what it does. Go to the committees and tell 
 them what you can do for them. {U) It is absolutely essential that you 
 get information ahead of time or else you will be of no use in the rush. 
 Send a circular letter out to legislators and tell them you will get any 
 material which will help them in their work before the session begins. 
 The following is a sample of such a circular : 
 
 Dear Sir : 
 
 The Wisconsin legislature of 1901 authorized the Wisconsin Free Library 
 Commission to conduct a Legislative Reference Department, and to gather and 
 index for the use of members of the legislature and the executive officers of the 
 
66 AMERICAN STATE GOVERNMENT 
 
 state such books, reports, bills, documents, and other material from this and 
 other states as would aid them in their official duties. 
 
 The Legislative Reference Library was entirely destroyed by the fire, but 
 much of value to the student of state affairs has been collected. We desire to 
 make such material of the utmost use, and wish you to call upon us for any aid 
 we can give in your legislative duties. 
 
 If you will inform us of any subjects you wash to investigate, as far as we 
 have the material, time, and means, we will tell you : 
 
 1. What states have passed laws on any particular subject. 
 
 2. Where bills for similar laws are under discussion. 
 
 3. What bills on any subject have been recendy introduced in our legislature. 
 
 4. Where valuable discussions of any subject may be obtained. 
 
 As far as possible, with our limited force and means, we will send you 
 abstracts of useful material and answer any questions pertaining to legislative 
 matters. 
 
 It is not our province to convince members of the legislature upon disputed 
 points. We shall simply aid them to get material to study subjects in which 
 they are interested as public officials. 
 
 Make your questions definite. Our work is entirely free, nonpartisan, and 
 nonpolitical, and entirely confidential. 
 
 The replies to such a circular give you an idea of what is coming. 
 Work for all you are worth on those topics, send out thousands of circular 
 letters to experts on these topics, subscribe to clipping bureaus if neces- 
 sary to secure critical data from the public at large. Gather statistics 
 ahead. Carefully search books for significant and concise statements ; if 
 to the point, copy or cut them out and index them. Go through the court 
 reports and get the best opinions, (c) Get hold of libraries or individuals 
 or professors in other states with whom you can correspond. Speed in 
 getting things to a committee or an individual is absolutely necessary. 
 Do not fail to use the telegraph. Get material, — facts, data, etc., — and get 
 it quickly and get it to the point ; boil down and digest. I can say again, 
 the legislator does not know much about technical terms ; avoid them, 
 make things simple and clear, (d) Employ, if you can, during the session 
 a good statistician. He can be of great service in dealing with financial 
 bills, in estimating accidents from machinery, or in gathering statistical 
 data of any kind. He should be a man who can work rapidly, accurately, 
 and to the point. Throughout all of this work it is absolutely necessary 
 to get all material absolutely upon the points at issue, (e) Make arrange- 
 ments with all libraries in your city and libraries elsewhere for the loan 
 of books or other material. You should have every sort of an index in 
 your library, as well as catalogues of any of the libraries with which you 
 are corresponding. (/) A correspondence clerk and some helper to paste 
 clippings, mount letters, etc., are necessary, especially during the legisla- 
 tive session, (g) Keep your place open from early in the morning till 
 late at night. Do everything in your power to accommodate those for 
 whom you work. 
 
THE LEGISLATURE 67 
 
 I believe that every such library established should try to specialize on 
 one great division of legislation. If one place studies municipal govern- 
 ment especially and another labor legislation, it would be a very useful 
 arrangement, as one could go directly to that library having the most 
 expert knowledge on one subject. Of course a journal of comparative 
 legislation is necessary to bring this work into coordination in the future. 
 This department in Wisconsin cost ^1500 for the first year and $4500 
 a year for the last two years, and now has an appropriation of $15,000 
 a year. The cost is not large because documents are, on the whole, very 
 cheap, and especially because we are near the State Law Library and 
 the State Historical Society, which kindly lend us much of their material. 
 
 Scope and Methods 
 
 Win such a department help in the betterment of legislation ? 
 
 Let us consider for a moment how a law is actually made. 
 
 John Jones comes to the legislature. He is a good citizen, a man of 
 hard sense, well respected in his community. He enters suddenly from 
 the quiet of his native village into a new life. He comes to live in a new 
 community. He is dogged about and worried by office seekers. His old 
 friends and advisers are not around to help him. He finds that it is 
 necessary for him to learn the ropes. He finds that if he is to represent 
 his district, he must introduce bills, and that he must in some way get 
 those bills through the legislature. He must, first of all, get those bills 
 drawn, and never having drawn a bill in his life and not knowing how 
 such things should be done, it is very hard work for him. He is con- 
 fronted with two thousand bills on two thousand subjects, legal and 
 economic. Complex questions which are not settled by the greatest 
 thinkers to-day are hurled at his head. Even scientific subjects that the 
 chemist or the physician or the man of science has had a hard time to 
 deal with must be met by our John Jones, and that in the hurry and 
 rush of committee work, and of his efforts to take care of the multi- 
 tudinous duties placed upon him. If he is honest, he will try to draw his 
 bills himself, or else he pays somebody to do it for him ; but the easiest 
 way is to consult somebody else. He finds around him bright men, well- 
 paid lawyers, men of legal standing, who are willing to help him in every 
 way. It is easier to consult these bright men ; and often, if he does it, he 
 is lost. It is seldom that he finds a true friend. They are there to look 
 out for their own interests, and John Jones is legitimate prey. To get hold 
 of him is their business. If he is honest and by persistent courage and 
 sterling honesty fights his way through, — pushes his bills on to become 
 laws, — those bills, having to do often with complex, technical subjects, and 
 being drawn by a man unskilled in law, are thrown out by the courts. 
 
 Here then is the situation. We see the farmer, our good grocerman, 
 even our small country lawyer, our successful manufacturer, our man of 
 
68 AMERICAN STATE GOVERNMENT 
 
 business, grappling at once, entirely unprepared, with the problem of 
 making laws that represent ever)' phase of industrial life. A few years 
 ago the simple legislation could be more easily handled by these men ; , 
 but now the great problems of the railroads, the telegraphs, the tele- 
 phones, insurance, the vast complex things of our modern life, make it 
 simply impossible for one man, however bright or educated he may be, 
 to act intelligently upon one tenth of the subjects which come before the 
 legislature. When some new invention comes into being, legislation must 
 deal with it ; when some new situation comes up through the growth of 
 new industries, then some new law must be made restraining or encour- 
 aging or in some way regulating these new conditions. It all goes to 
 show how unfitted our old representative government is to meet the 
 conditions to-day, and how utterly helpless any one man is when he 
 has to meet these complex problems. 
 
 Besides all these difficulties which I have named, we must not forget 
 that there are other difficulties. The federal Constitution was in a way a 
 simple instrument when it was made, compared to what it is now. The 
 unwritten constitution of the country, the many decisions made by our 
 courts, have tended to bind the action of the state and the legislators of 
 the state hand and foot. Again, the increasing distrust of our legislatures 
 by our citizens has resulted in immense state constitutions which are 
 nothing more than compiled statutes, filled with innumerable restrictions 
 upon the action of the legislator. He is restrained in every way by the 
 federal Constitution, and by his state constitution, and by the hundreds 
 and hundreds of cases interpreting nearly every word and nearly every 
 phrase in every law. Is it any wonder then that there is a cry that the 
 supreme court is usurping legislative functions and is defeating the will 
 of the people ? Does it seem right that our legislative opinion should be 
 molded by private interests because private interests alone know how to 
 present their case ? Does it seem right that the only help which the legis- 
 lator gets in his great need is that of the people who are seeking gain 
 from the very laws he is making, or who are trying to prevent the making 
 of effective law ? 
 
 A committee is often a judicial body. It sits in judgment upon private 
 bills. It gives rights and franchises that make men wealthy or deprive 
 men of their property. Yet this court hears often but one side of an 
 argument, and has no means of investigating the truth or untruth of one 
 statement made. Not only that, but it is subjected in its determinations 
 to a hundred influences to which no judge is subjected. Would we allow 
 such a state of affairs in our private business ? Would we tolerate it in 
 our judiciary ? How are we prepared to make that still greater activity 
 of government which some call " paternalism " ? Why, the powerful in- 
 terests do not have to resort to bribery ! Their experts can win by the 
 irresistible force of argument alone. They must hold the balance, for 
 they have the brains of the land and pay well for them. 
 
THE LEGISLATURE 69 
 
 Is it any wonder that many good people throw up their hands with 
 joy and say, " Thank God the legislature is over " ? It is not a thing to 
 be joked about. Our papers make fun of the legislature and its " freak " 
 legislation, but it is a mighty serious state of affairs when a people loses 
 confidence in its governing body. 
 
 The revelations of graft and corruption of the last four years should 
 convince us all that we are up against a serious condition, and that we 
 must seek a positive remedy of a more fundamental kind than has yet 
 been proposed. If these are the conditions under which our legislative 
 opinion is formed, is it any wonder that the will of the people is con- 
 stantly defeated ? Is it any wonder that our laws are poor ? Is it any 
 wonder that the clamor of public opinion fails to be heard within our 
 legislative halls ? Is it any wonder that the making of needed laws goes 
 on so slowly ? Now what is the remedy for all this ? We look around 
 about us and find our judiciary composed of the high men of the state. 
 We have the most profound respect for our judiciary. We are satisfied 
 with it. Our administrative bodies have not yet reached that high stand- 
 ard, but we are every day developing administrative bodies which are, 
 notwithstanding recent revelations, becoming more and more fit to take 
 charge of the business of the state, but how about the legislature ? Does 
 it not seem reasonable that the law, which is the expression of the will 
 of the people and upon which good administration is founded, should be 
 scientific, — should he based upon the best experience of all mankind ? 
 If our administration is to be good administration, does it not seem 
 ridiculous that the supreme court, the highest legal talent in the state, 
 should go on day after day, year after year, turning out decision after 
 decision upon laws which are made often by men who have never seen 
 a law book ? Does that seem like business ? Does it seem right that our 
 fundamental law should be left to these haphazard conditions ? Does it 
 seem reasonable that all the talent should be used in interpreting laws, 
 in curing their dfefects, and that absolutely nothing should be done in a 
 scientific way in the making of these laws ? Why, in building any kind 
 of a structure to-day we use an architect 1 The construction of a law is 
 a far harder task than the criticism of it, or even the interpretation of it. 
 It involves the interpretation of it. It involves a knowledge of the theory 
 of government. It involves, because of the enlarged sphere of govern- 
 ment to-day, a sound knowledge of economic conditions. 
 
 We have heard a great deal of condemnation of the legislature. It is 
 easy and popular, too, to sneer and censure and to criticize, but we 
 have heard very few suggestions as to a remedy put forth. 
 
 If private forces maintain bureaus of information for representatives, 
 let us have public information bureaus, open to private and public inter- 
 ests alike. If it is hard to get information because of the great variety 
 of subjects now coming before our legislators, the only sensible thing to 
 do is to get experts to gather this material. If business interests have 
 
70 
 
 AMERICAN STATE GOVERNMENT 
 
 good lawyers to look after their legislation, the people should secure the 
 same kind of men to help their representatives. If the business interests 
 secure statisticians, engineers, and scientific men, then the public should 
 do likewise. If great judges and great lawyers are constantly working 
 upon the problems of interpretation of laws, then surely men of equal 
 ability should be consulted while those laws are being constructed. 
 
 This work is now going forward with great strides, and state after 
 state is taking it up. The legislators give it the most enthusiastic sup- 
 port. In this work is the great future of the state library, because the 
 state libraries are the legal storehouses of knowledge for our state officers 
 and legislators. The basis of the work is essentially the storing and 
 keeping of knowledge ready for use, and is not that the highest aim of a 
 library ? Already the Carnegie Library at Pittsburg has a specialist to 
 answer questions upon scientific subjects. All the state library needs is 
 specialists of a like nature for legislative subjects. Again, the state library 
 is within the legislative circle of which I have spoken. It is now doing 
 this work to some extent, and will have only to change its methods and 
 get specialists to acccjmplish the full work. 
 
 iVgain, the organization of a new department in the statehouse and 
 the duplication of books and other material should be avoided in the 
 interest of economy. The state library is established, has the material, 
 and, what is better, is generally out of politics. An extension of the 
 functions of the state library is all that is necessary in most cases. 
 
 Now what do we expect from the successful operation of a system 
 like this ? We hope that all legislation can be made better and be put 
 upon a more scientific basis. We look upon this as simply a pure busi- 
 ness operation. No one here would buy land in Texas without ever 
 having seen that land. You might buy land in a lake or in the bed of a 
 river, if you should use such a process as that ; you would at least get 
 some one to look up your title. But we leave our legislators to copy a 
 Texas statute that may be twenty years of age, may have been modified 
 twenty-five times, may be entirely unsuited to our conditions, and which 
 may be in the end unconstitutional, — we let our legislators incorporate 
 such statutes in our statute books without a protest. It seems merely 
 common sense that we should get all possible knowledge relating to that 
 statute for the use of our legislators. In this way legislation cannot help 
 being bettered ; in this way the dearly bought experience of one state is 
 used for the betterment of conditions in another state. In this way the 
 best there is can be culled out from the statutes throughout the country 
 and used for the benefit of our people. 
 
 There is a great cry against our overloaded constitutions. Our con- 
 stitutions have been purposely overloaded because the people who made 
 these constitutions wished to put certain things in them which could not 
 be overturned by the caprice or corruption of legislators. As time goes 
 on and people find that there is a scientific department working with the 
 
THE LEGISLATURE 
 
 71 
 
 legislature, then the people will again gain confidence in the legislature 
 and will again trust the legislature. 
 
 There is a widespread agitation at the present time for centralization 
 and nationalization, — a movement which strives to have one after an- 
 other of the state functions taken over by the national government. We 
 hear agitation about federal life insurance, we hear agitation about national 
 incorporation acts, federal food acts, and various forms of federal super- 
 vision of one thing or another. 
 
 I only want to point out to you that as our laws are made better in 
 any way these movements will stop. This great danger will be overcome. 
 The best laws are those laws which are near to the people who make 
 the laws, and the only means for saving our local-option system of state 
 government — the only means of keeping the federal government at 
 Washington from controlling our affairs — is to make our state laws bet- 
 ter and better ; and the only way in which they can be made better is to 
 have scientific method in the making of them. Every business method 
 should be used and technical clerical help should be secured in order that 
 the man who makes the laws can have the knowledge before him neces- 
 sary to make laws good and to make laws just and to make laws stand 
 for all time. 
 
 If our state legislature gains in the confidence of the people, so will 
 our supreme court and our judicial bodies gain in the confidence of the 
 people. Our courts will not be called upon to make decisions which ap- 
 parently defeat time and time again the will of the people. They will 
 not be called upon to turn down law after law which has been put upon 
 our statute books often by prolonged and patient struggle. The laws 
 will be better before they come to the courts. Prevention is better than 
 cure, and every effort we can put into prevention in this case will make 
 our laws better, and will make it easier for our courts to decide upon the 
 true merits of the laws. Decisions based upon technicalities will be less 
 in number. Our judiciary will continue to be respected and honored. 
 
 Says the Montana Bar Association in a recent report : '" The time of 
 the court is consumed in hearing discussions upon statutory enactments 
 and determining what law is in force and what has been repealed. Liti- 
 gation is thus delayed, additional expense engendered, and private rights 
 rendered insecure." What is the remedy for such conditions ? Do these 
 conditions not demand that the same skill used in interpreting the law 
 should be used in its construction ? 
 
 We have recently seen the work of the Armstrong Investigating Com- 
 mittee in New York. No insurance law ever passed in this country had 
 so much effect upon insurance regulation. That report was made by 
 legislators and not by state officials. We are constantly crying out to-day 
 against the innumerable state boards that are being created. Boards have 
 been created licensing barbers, and licensing every trade and occupation. 
 We object to the increase of commission government, and yet commission 
 
72 AMERICAN STATE GOVERNMENT 
 
 government has increased because it has been felt for some time that 
 the only way of enforcing laws, the only way of doing special duties, 
 was to do them by the creation of new boards. And yet this Armstrong 
 committee shows us a way of making laws and enforcing laws, which is 
 better than boards and commissions. If we have some department work- 
 ing with our legislature, and have that department work outside of the 
 sessions with investigating committees, then we can be sure that there is 
 always a check upon the action of our boards and commissions, and that 
 there is always at hand a remedy for evil in the hands of the people 
 themselves. They can always ask for an investigating committee, and 
 the report of that committee will result in good sound law. 
 
 At the present time, in nearly all of our states, an able lawyer will go 
 before a committee composed of good farmers and good merchants, and 
 sometimes, though he may not speak the truth, that committee is ab- 
 solutely at the mercy of that man. He can tell them privately or before 
 the committee that a certain bill is unconstitutional, or has been a failure, 
 where tried. He can defy individual members to answer him. He has 
 behind him sometimes many clerks to gather statistics of all sorts for his 
 use before that committee. What has that committee to do under the 
 circumstances, and what can the individual member of that committee 
 do under those circumstances ? What could you do under those circum- 
 stances ? Of course the committeeman does not want to make himself 
 ridiculous, and sets the business forth in a half-hearted report, or acqui- 
 esces in the statements of the attorney before the committee. If a de- 
 partment existed entirely nonpartisan and nonpolitical, composed of men 
 of ability, then there is no reason why that committee could not require 
 briefs to be filed before them and ask the help of this department. Then 
 it would be harder to deceive by misstatements. Then any one could 
 investigate for himself if he was honest and wanted to do his duty. 
 
 As to our own department in Wisconsin, I do not want you to have 
 the impression that we are reformers, that we are trying to influence our 
 legislators in any way, that we are upon one side or another upon any 
 question, or that we are for or against somebody or something. We are 
 merely a business branch of the government. I do not want you, either, 
 to think that we are dictating legislation. We are not. We are merely 
 servants of the good, able, and honest legislators of our state. We are 
 merely clerks to gather an index and put together the information that 
 these busy men desire. It is merely a business proposition. I do not 
 want to deceive you, and to have you think that we have done more 
 than we have in Wisconsin. We have as yet but a small department. But 
 I believe that this work has had a decided effect upon legislation in 
 Wisconsin. I can say truly it is popular with all members of the legis- 
 lature. We have answered thirty or forty questions a day upon vari- 
 ous topics. As soon as a question relating to the quality of diphtheria 
 antitoxin or some other difficult subject comes before the legislature, 
 
THE LEGISLATURE 73 
 
 hundreds of letters go out from our department to the great schools of 
 medicine, to the great hospitals, and to the scientists who have knowledge 
 upon that subject. The results of their investigations are placed before 
 our committee in concise form. So question after question is investigated 
 in as scientific a manner as our time and means allow us. It is our duty 
 to gather every bit of scientific data from whatever source. The legis- 
 lator sometimes does not know where he gets the information. The 
 professor of economics, the professor of political science, the public man, 
 the chemist or scholar, does not know where it goes. The great body of 
 public men throughout the country can be drawn upon for information 
 to help our legislators. Committees, too, realize the worth of this research 
 work, and a large number of the bills before them are investigated by 
 this department. Committees working upon abstract and technical sub- 
 jects have at their hands in concise form letters and opinions and other 
 data from all over the country, from experts upon the particular subjects 
 on which the committee is working. We feel that we have done very 
 little, but that at least we have done something where nothing was done 
 formerly. 
 
 Sources of Material 
 
 Most of the material essential to the Legislative Reference Depart- 
 ment can be readily obtained, with comparatively httle cost. Probably 
 half is documentary in its nature, and a request forwarded to the proper 
 source almost invariably meets with prompt and generous response, from 
 both United States offices and various state departments. An appeal to 
 the Secretary of State or to the heads of the various state departments 
 for copies of the reports, bulletins, or publications of a state is never 
 refused, if it is known that the value of such documents is appreciated 
 and that they will be made available for public use. This class of material 
 costs nothing except postage and occasionally express charges, and is 
 of the utmost value and unobtainable elsewhere. 
 
 The proceedings of the various local and national societies, together 
 with their special reports and bulletins, are very desirable, and many of 
 these may be obtained by applying either to the secretaries or to the 
 local members, who will be glad to furnish such material. Societies which 
 deal with economics, political science, law, commerce and industry, mu- 
 nicipal problems, and labor organizations have been formed to investigate 
 these subjects and to forward the interests of all concerned therein. 
 They are glad to have their ideas and policies placed where they will be 
 given publicity and be used most profitably. 
 
 By keeping in close touch with the views and interests of the legis- 
 lators we learn of many individuals whose interests are along specific 
 lines and who devote their time to special subjects. To these men, as 
 individuals, we apply for helpful suggestions, not only as to material but 
 also as to criticisms upon particular laws, and from them we receive 
 
74 
 
 AMERICAN STATE GOVERNMENT 
 
 many gifts of pamphlets and material which could scarcely be obtained 
 in any other way. 
 
 The newspapers furnish a source of inexpensive and invaluable ma- 
 terial. Clippings from the newspapers of different parts of the country 
 should be arranged and classified the same as pamphlets. Perhaps some 
 local newspaper will be willing to contribute its exchanges. In this way 
 one can keep the department in touch with public opinion, not only in its 
 own locality but throughout the entire country. 
 
 There are some periodical publications which can be secured as gifts 
 or at very small expense ; these may be clipped and the material put 
 upon the shelves according to subject. A useful subscription list should 
 be judiciously chosen, and care must be taken to keep this list within a 
 reasonable amount. 
 
 Finally, if information upon a particular phase of a given subject is 
 wanted, in order to meet some special demand, a circular letter sent to 
 experts or officials is to be recommended. This brings information 
 absolutely unavailable in books, with practically no cost, and the returns 
 may be mounted and put into pamphlet form immediately. 
 
 There are some books which one must buy, but a most creditable and 
 useful collection can be made at a cost so small that it puts a department 
 of this type in a unique position in the library world. 
 
 The important consideration in the gathering of material is not the 
 amount of money involved, but the patience and time required in writing 
 many letters to the proper sources, and the judgment and discretion 
 required in retaining that which is truly "worth while." 
 
 METHODS OF LEGISLATION^ 
 
 To explain the importance of the House "organization" it is necessary 
 to discuss the parliamentary rules and tactics used in steering a bill through 
 the House. The road is long and hard without the friendship of the com- 
 mittee to which the bill is referred, and of the Speaker, who can wield the 
 gavel to help or hinder its progress. The bill must go to committee, be 
 printed, be reported out to pass, and be read on three different days. It 
 may be amended after second reading; it must be engrossed before third 
 reading. Then it is in the order of passage, and requires in the House 
 seventy-seven votes to pass. With a friendly House and Speaker it may, 
 on introduction, by unanimous consent (wholly dependent on the Speaker's 
 hearing objections if made), be read a first time without reference to a 
 committee, read a second time on the following day, and on the third day 
 passed. This is the short road. The bill to provide for the incidental 
 expenses of the assembly invariably follows this route. A committee 
 may itself prepare and introduce a bill. In this way the death-limit bill 
 was introduced in the Senate and passed in forty-eight hours. 
 
 1 From a bulletin of the Legislative Voters' League of Illinois, 1903. 
 
THE LEGISLATURE 
 
 75 
 
 On the other hand, consider the petty annoyances to which a decent 
 member outside the " organization " may be subjected, and the methods 
 by which legitimate legislation, backed by him, may be blocked. The 
 bill goes to an unfriendly committee. The chairman refuses to call the 
 committee together, or, when forced to call it, a quorum does not attend. 
 In case a quorum attends, the point maybe raised that the bill is not printed, 
 or the chairman may fail to have the original bill with him. Action may 
 be postponed on various pretexts, or the bill may be referred to a subcom- 
 mittee. The committee may kill the bill by laying it on the table. On the 
 other hand, the committee may decide that the bill be reported to the House 
 to pass. Then a common practice is for the chairman to pocket the bill, 
 delaying to report it to the House till too late to pass it. When finally 
 reported to the House, it goes on the calendar to be read a first time in its 
 order. Then begins the advancing of bills by unanimous consent, without 
 waiting to reach them in order. Here is where the " organization " has 
 absolute control. Unanimous consent is subject to the speaker's acute- 
 ness of hearing. His hearing is sharpened or dulled according to the good 
 standing of the objector or of the member pushing the bill. If one not 
 friendly to the House " organization " wants to have his bill considered 
 over an objection, he must move to suspend the rules. The Speaker may 
 refuse to recognize him, or may put his motion and declare it carried or 
 not carried, as suits his and the " organization's " desires. So the pet biUs 
 are jumped over others ahead of them on the calendar, while the ones not 
 having the backing of the House " organization " are retired farther and 
 farther down until their ultimate passage becomes hopeless. If the bill 
 of the independent member reaches second reading, it may be killed by 
 striking out the enacting clause or by tacking on an obnoxious amendment 
 that makes it repulsive to its former friends. A referendum requiring 
 not a majority of those voting on the bill, but a majority of all the votes 
 cast at the election to adopt it, is a new and favorite method of shelving 
 a bill by amendment. To carry out the will of the " organization, " the 
 Speaker declares amendments carried, or the contrary, on viva voce vote. 
 Demands for roll calls are ignored by him in violation of the members' 
 constitutional rights. This is called gaveling a bill through. Formerly the 
 gavel was used to carry through political measures of the majority party 
 and to prevent obstructive and dilatory tactics of the minority party. By 
 a gradual growth it has come to be used to help or defeat legislation in 
 which the " organization " has an interest, although the majority may have 
 a contrary view. What the Speaker declares the clerk must record, and 
 what the clerk records no court will set aside. 
 
 If a bill comes through this critical stage of amendment safe and sound, 
 it goes into the engrossing committee and becomes the victim of the chair- 
 man. He, in turn, may neglect to report it back until its place on the 
 ; calendar is so far behind that a single objecting member (subject to the 
 Speaker's hearing) may prevent it ever reaching a vote. 
 
76 AMERICAN STATE GOVERNMENT 
 
 The " organization's " control of a bill is not ended on roll call for pas- 
 sage. Here the members cannot escape a record. They must come out 
 in the open, voting for or against it on roll call, or practically vote against 
 it by remaining silent. It must have seventy-seven votes to pass. Failure 
 to preserve a record . showing a constitutional majority voting for it 
 would invalidate the act. But the " organization" with the machinery in 
 its hands may hold back the announcement of the vote while active work 
 on the floor among members may change votes or persuade those not vot- 
 ing to support the bill. If its defeat is desired, the announcement is made 
 promptly, leaving no time for such work. 
 
 The foregoing will explain the importance of capturing the House 
 "" organization." There are fifty-seven committees to be appointed, and to 
 fill them the Speaker must make over a thousand assignments. He and his 
 backers use these as inducements to members to join their forces. In ad- 
 dition he controls the House patronage. The same system applies to the 
 Senate. The legislative pay roll is created on the first day's session, and 
 in the confusion and, to the new members, novelty of the situation, reso- 
 lution after resolution is put through, creating a needless and extravagant 
 pay roll. At the same time a bill to provide $100,000 for this pay roll is 
 started on its way to the Senate. Of this sum $75,000 used during the 
 last session was clear waste, to pay for positions not provided by statute and 
 not necessary to the work of the session. Ninety-three janitors and seventy 
 policemen formed a portion of the two hundred and sixty-one sinecure 
 jobs paid for out of this fund, and the only service required was to appear 
 at the auditor's window and draw pay. The pay roll, by judicious distri- 
 bution, was used to further the ends of the " organization." 
 
 After creating this pay roll the purely political play of setting up the 
 pins of the " organization " commenced, while the state paid the enormous 
 daily expenses of the session. Forty days were consumed before a single 
 committee was appointed. Their make-up had to be carefully considered, 
 not with any regard to public interests, but with a view to rewarding 
 friends and punishing enemies. With a clique Speaker and a clique 
 organization of committees it was thought the majority could be throtded. 
 Meantime not a stroke of work was done except to pile up bills for the 
 consideration of committees when appointed. Daily sessions of an hour's 
 length were held on three days of the week during this time. Then a 
 week after the appointment of the committees the first House bill passed. 
 And still every effort in committee and on the floor was made to keep im- 
 portant legislation, excepting appropriation bills, in the background. This 
 was done with a view to piling up the business for the last two weeks of the 
 session, when, in the crush and confusion, the " organization " could advance 
 its own bills and kill all others. Aside from formal bills to appropriate 
 money and to fix court terms in some counties, no important legislation 
 passed the House until seventy-eight days of the session were gone. Then 
 the State Civil Service Bill, with its vitals torn out, was sent to the Senate. 
 
THE LEGISLATURE 
 
 n 
 
 Practically the House did not get down to business until the time to 
 adjourn had been fixed. On March 3 1 , nearly three months after its first 
 meeting, it began to hold two sessions a day and to meet five days in the 
 week. This program seemed merely to enliven some of the worst com- 
 mittees, and they began sending out their '" regulators." A " regulator," 
 "" holdup bill," or "sandbagger" may be defined as a bill to regulate, tax, 
 license, or prohibit certain industries. The manipulation and juggling of 
 these bills has become an industry in the legislature. Of the eight hundred 
 and seventy-three bills introduced in the - House, over one hundred were 
 bills of this nature. They came from about fifteen members, Republicans 
 and Democrats, and mostly from Cook County. Many of these bills were 
 greeted with a smile of recognition as they made their appearance from 
 day to day, dug from the records of former sessions. The mechanical 
 operation of a typewriter prepared them for renewed "usefulness." Some 
 of the legislative clique had not the ingenuity or experience necessary 
 to the selection of a " good proposition," and it is well known that such 
 measures were handed them for introduction by experts in that line, with 
 a promise of some of the fruits. The handling of the bills in committee 
 and on the floor was left to the more astute and experienced members 
 of the clique. 
 
 Most of such bills were sent to the committees on municipal corpo- 
 rations, corporations, railroads and license, and halted there in the 
 expectation of being put to sleep. Their nurses expected a handsome 
 consideration for their services. They had brought them into life and 
 were their tender caretakers. The clique had been given absolute control 
 of these committees, the decent members being a small minority. This was 
 the clique's reward for the support its Republican members gave to the 
 " organization " in electing the Speaker. Every one, including the Speaker 
 who appointed them, and the committee that dictated to him their appoint- 
 ment, knew their sandbagging purposes. Their bills met none of the 
 obstacles so easily placed in the way of broad constructive legislation in 
 these committees. The proceedings of these committees were conducted 
 without regard to parliamentary rules or a sense of fair play. Their com- 
 plexion and methods smacked of the old-time precinct meeting of political 
 heelers. Decent members, Aaming to the legislature with ambition and a 
 desire to serve public interests, though Republicans, were relegated to 
 inactive positions as members of the minority on these committees. Here 
 they writhed at spectacles of demoralization they had never before wit- 
 nessed. Jokes were bandied about and the wink exchanged when a 
 notorious " sandbagger " was under discussion. 
 
 The control of four such important committees gave the disreputables 
 a powerful leverage for bluff. Here their holdup measures were killed, 
 postponed, or reported out, to suit their convenience. When sent to the 
 House through the cowardice or friendliness of a complaisant Speaker, 
 they were juggled on the floor to positions- of vantage that were intended 
 
78 AMERICAN STATE GOVERNMENT 
 
 to scare the financial interests affected. Yet in the few instances, when 
 such bills came to a final vote, -they were promptly killed by the honest 
 majority. 
 
 Some members and some of the public are indifferent to this venal 
 practice, because it " merely pulls the leg of some corporation." They 
 overlook the fact that these bills crowd the calendar, force trading with 
 venal men for votes, involve a principle, and result in the selling of souls. 
 The few members who come to the legislature with the deliberate pur- 
 pose of indulging in this illegitimate business are like rotten apples in a 
 barrel. They taint the whole. It is true that few begin their career with 
 this deliberate purpose. Yet the fact remains that in every session these 
 bills are introduced to be used merely as clubs to knock down the per- 
 simmons in order that the hungry few may gorge themselves on the 
 rotten fruit. It is further true that men of substance, who can justly 
 claim to be good fathers, husbands, or neighbors, lend themselves to this 
 slaughtering of the public good for private gain, either through cowardly 
 weakness or because the almighty dollar is a stronger argument than a 
 clear conscience. To one who has obtained a peep behind the scenes the 
 pathos of the whole matter lies in the fact that in forty-nine cases out of 
 fifty the money that has been put up to avoid vicious legislation is worse 
 than wasted. If the vicious manipulator can be made to understand that 
 every time he puts up money to obtain or prevent legislation where it can- 
 not stand on its merits, he is simply bartering in human souls, his own 
 included, the use of unlawful money can be kept out of our state legis- 
 lature. If this is done for one session, more than 90 per cent of civic 
 evil will disappear. This reform cannot be brought about by more strin- 
 gent laws. It must be brought about by stirring public sentiment to the 
 point where even the .just suspicion of one's connection with boodling, 
 either as one who furnishes the funds or as the director of an institution 
 that will shut its eyes and wink at corruption, will cause one to be shunned 
 by all honest men. 
 
 Even a casual observance of the workings of the legislature will 
 show the absurdity of a party organization of the House. Party lines 
 have little to do with the actual work of the legislature. With ita organ- 
 ization they have no concern. There were only two strict party votes 
 during the session: the first to elect a United States senator; the second 
 to form a Republican supreme court district. Yet the pooh-bah of party- 
 ism was used to divide honest men, and the party caucus adhered to with 
 perfunctory formality. To reform the legislature, partisanship and fac- 
 tionalism must be laid aside to the end that a Speaker be elected who will 
 respect his oath of office, and who will appoint committees promptly and 
 on lines of honesty and fitness. An important factor in accomplishing this 
 reform will consist in abolishing the vicious pay roll, a growing evil and a 
 factor in the organization of both House and Senate. With such reforms 
 the work of the legislature will be sifted to the consideration of legitimate 
 
THE LEGISLATURE 
 
 79 
 
 legislation ; deals, bargains, and trading of votes will, to a large extent, be 
 eliminated, the sessions shortened by business methods being pursued, 
 and the legislature will become, what it is now only in theory, a truly 
 deliberative body. The election of men on their merits, regardless of 
 party, will accomplish this reform. No mere laws or system of rules wiU 
 do it. The question is up to the people of Cook County. 
 
 THE LOBBY 1 
 By Governor William E. Russell 
 
 One thing above all is necessary to make law the true expression of 
 the people's will. Broadening and protecting the suffrage, reforming and 
 purifying elections, will fail of this purpose unless the lawmaking power 
 is protected from insidious and corrupting influences, which tend to con- 
 trol legislation against the people's interest and to impair public confi- 
 dence in its impartial enactment. 
 
 There exists in this state, as in other states, an irresponsible body known 
 as the lobby, representing or preying upon special interests, which pro- 
 fesses and undertakes for hire to influence or control legislation. Its 
 work is wholly distinct and different from the advocacy of one's cause in 
 person, or by counsel or agent, which is the constitutional right of every 
 one. It seeks often to control nominations and elections, and to subject 
 the individual legislator, directly or indirectly, to secret and improper 
 influences. It throws suspicion upon the honest and temptation in the 
 way of the dishonest. Professing power greater than it has, it frequently 
 extorts money as the price of its silence or unnecessary assistance. It 
 has initiated legislation, attacking the interests of its clients in order to be 
 hired to defend those interests. It has caused the expenditures of large 
 sums of money to obtain or defeat legislation. It cares little for the 
 merits of a measure or the means employed to make it successful. In 
 my judgment improper measures have, by its influence, been made law, 
 against the public interest, and just measures have been defeated. These 
 criticisms have not been based upon rumor or conjecture, but upon facts 
 reported after most thorough investigation by your predecessors, who 
 denounced the evil in unsparing terms and diligently sought a remedy. 
 
 In 1887 they spoke of the methods thus employed as " a struggle for 
 success without regard to means "; " causing a growing demoralization "; 
 and they added, "the venality and corruption which these practices 
 encourage, tending to defeat that right and justice which the state is 
 bound freely and without price to bestow, are a reproach to a free 
 people." In the same year the governor, vetoing a measure because of 
 the lobby influence, described the lobby as " a pernicious system," and 
 its methods as " a monstrously bad and corrupting practice." In 1890 a 
 
 1 From a message to the Massachusetts legislature, January, 1891. 
 
8o AMERICAN STATE GOVERNMENT 
 
 committee of investigation of the House reported: " It is a fact beyond 
 denial that a body of professional lobbyists has for years formed part of 
 the machinery of legislation, . . and has been growing in numbers 
 and influence," and again they denounced its methods. The evils of the 
 lobby have become so flagrant and disgraceful that for the purity of 
 legislation, the protection of the legislature, and the fair name of our 
 commonwealth, they demand your serious consideration and some strin- 
 gent and radical remedy. This is a matter which especially concerns the 
 legislature, and therefore one which the executive approaches with some 
 embarrassment. Yet I feel I should be derelict in my duty if I failed to 
 do all in my power to aid you in its solution. 
 
 It is far easier to state the evil than to suggest the remedy. Clearly 
 it is impossible and improper to prevent a constituent or any other per- 
 son from having the freest access to a legislator. This constitutional 
 right guaranteed to the people gives opportunity to the lobby to do its 
 work. Prevention by nonintercourse is therefore impossible. Prevention 
 by publicity is possible, and I would suggest for your consideration 
 whether a remedy may not be found in this direction by making it easier 
 than it now is publicly to investigate the methods used and money spent 
 on pending legislation ; and also, by giving power to some proper officer, 
 before a measure finally becomes law, to demand under oath a full and 
 detailed statement as to these matters. The fear of publicity, and through 
 it of defeat, may stop improper practices by making them worse than 
 useless. Your immediate predecessors, with an earnest desire to cure the 
 evil, and believing in the remedy of publicity, passed an act requiring all 
 counsel and agents employed by any special interest on matters pending 
 before the legislature to be registered, and a statement under oath of all 
 expenses incurred to be made within thirty days after the adjournment of 
 the legislature. I believe that good will come from this act if fairly and 
 thoroughly enforced, but that it falls short of being a sufficient remedy. 
 It makes public the names of all persons employed, but not the acts of 
 the lobbyist. It makes public the expenses incurred, but too late to affect 
 the legislation for which they were incurred. 
 
 I ask you also to consider whether something cannot be done to relieve 
 the legislature of much work that seems to be honest and unnecessary, 
 to prolong its sessions, and to give life and strength to the lobby. Recent 
 amendments to your rules have been made, I am informed, with this 
 purpose. You may deem it wise to make further provision for an earlier 
 introduction of business and for its more systematic conduct. Any steps 
 which would tend to reduce suggested legislation to a specific form, and 
 to give the fullest possible notice to the public of the exact status of any 
 matter pending, would, I am confident, restrict the employment of the 
 lobby. 
 
THE LEGISLATURE 8 1 
 
 LOBBYING 1 
 
 State of Wisconsin, Executive Office 
 Madison, May 25, 1905 
 To the Honorable, the Legislature : 
 
 Upon the assembling of the Senate and assembly in joint session at 
 the opening of this legislature on the twelfth day of January, 1905, in 
 the message then submitted, among other things presented for your 
 consideration, I said : 
 
 I am not unmindful of the fact that members of the legislature are the 
 agents of their constituents ; that they must ever be ready to be made 
 acquainted with their wishes and with the interests of the public. But that a 
 system of lobbying, more reprehensible in its character than has yet been 
 suggested to the public, has been maintained about this legislature for many 
 years is well known to every man in public life. That it is desirable to put an 
 end to this evil, all will agree. That it is possible, all should be anxious to 
 demonstrate. 
 
 I desire to be distinctly understood as favoring the fullest and freest dis- 
 cussion before committees, and, under proper regulations, before either or 
 both branches of the legislature, by individuals or the representatives of inter- 
 ests affected, or which claim to be affected in any manner by proposed legis- 
 lation, but / urge upon your consideration the enactment of a law that shall 
 make it an offense, punishable by the heaviest m.oney penalty and by imprison- 
 ment as well, for any lobby agent or lobby representative, employed and 
 paid for his services by others, to attempt personally and directly to influence 
 any me)nber of the legislature to vote for or against any m-easure affecting 
 the interests represented by such lobbyist. 
 
 No one acquainted with the facts will venture to deny that the lobby 
 has been very potent in legislation for many years in Wisconsin. 
 
 Session after session the schoolbook lobby has suppressed or defeated 
 legislation inimical to the interests of the schoolbook monopoly. 
 
 Our laws upon trusts are weak and impotent. They serve merely to 
 foil the enactment of something better. For three successive sessions I 
 have urgently recommended revision and have submitted plain and 
 specific recommendations for effective legislation. A hostile lobby has 
 found a way to block all legislation upon the subject. 
 
 A telephone monopoly has for years, through the services of a paid 
 lobby, prevented the enactment of a statute which would have given 
 the people of this commonwealth a competitive service and assured 
 them a reasonable rate. 
 
 Without going back over that period of time covered by the impudent 
 boast of a railway lobbyist, proclaimed in this capitol, that " No bill has 
 been enacted into law during the sixteen years last past in the interests 
 of the people when objected to by the railroads," — without going back 
 further than the service of many members of this legislature extends, 
 
 1 Message of Governor La Follette to the Wisconsin legislature. May, 1905. 
 
82 AMERICAN STATE GOVERNMENT 
 
 it admits of no denial that the railway lobby defeated the bill to increase 
 railway taxes in 1899, that it defeated the bill to increase railway taxes 
 again in 190 1, that it defeated the bill to create a railway rate commis- 
 sion in both of those sessions and again in 1903. The railway lobby 
 maintained at this capitol since 1899 has cost the people of Wisconsin 
 millions upon millions of dollars. 
 
 At this session, and at every session for years, paid lobbyists have 
 been employed about this legislature, by the railroads, who are incom- 
 petent to argue any proposition before a legislative committee. They 
 are a grade of men with whom the railway companies would not trust 
 the trial of a petty damage suit in a justice court. They dog the foot- 
 steps of legislators in and out of the capitol, they follow them to their 
 rooms and hotels, they are free with entertainment. It is their business 
 more especially to see legislators personally. Their special talent seems 
 to fit them more particularly for private argument. Their presence is 
 an annoyance and a nuisance. Their employment here should constitute 
 a statutory offense. 
 
 The experience in Wisconsin is duplicated in every state in the Union 
 where effort is made to emancipate legislation from corporate control. 
 Governor Larrabee, writing of the long struggle which preceded the 
 establishment of the Iowa Rate Commission, said of the railway lobby 
 the following : " If the items annually expended upon railroad lobbies 
 were reported, these lobbies would soon be frowned, or even hissed, out 
 of legislative halls." « 
 
 This legislature can at this session, — and who will assume the respon- 
 sibility of saying it is not high time that it should at this session put all 
 paid lobbyists under regulations that will make such scenes as have been 
 notorious in the capital city of this state for years, impossible for all time 
 to come. I would neither recommend nor approve of a law interfering 
 with free and full public discussion of all measures of proposed legislation. 
 Every opportunity and every courtesy should be extended to those who 
 favor and to those who oppose any pending bill for open public discus- 
 sion, before committees and in either chamber before legislators and the 
 public. Every legitimate argument which any lobbyist has to offer, and 
 which any legislator ought to hear, can be presented before committees, 
 before the legislators as a body, through the press, from the public plat- 
 form, and through printed briefs and arguments placed in the hands of 
 all members and accessible to the public. 
 
 Corporate interests can maintain a strong lobby composed of able 
 men at the capitol throughout the entire session. Those who would be 
 heard in opposition cannot. How unjust it is to hold a public hearing, 
 invite both sides to present arguments, and then when the hearing is 
 over to allow the permanent lobby to continue the discussion with indi- 
 vidual legislators personally through weeks of the session thereafter, 
 without those opposed being present to hear and refute arguments. 
 
THE LEGISLATURE 83 
 
 Leaving aside all question of any improper suggestion or inducement 
 being presented in a personal or private interview with a legislator, con- 
 sider how unjust it is to the opposition and to the public to accord to one 
 side such an advantage when it is denied, or impossible, to the other. 
 
 The legislation which I most earnestly recommend is right in reason 
 and is sanctioned by the highest authority. The most eminent writer in 
 this country upon constitutional law has said : 
 
 The law also seeks to cast its protection around legislative sessions and to 
 shield them against corrupt and improper influences, by making void all con- 
 tracts which have for their object to influence legislation in any other manner 
 than by such open and public presentation of facts, arguments, and appeals to 
 reason as are recognized as proper and legitimate with all public bodies. 
 While counsel may be properly employed to present the reasons in favor of 
 any public measure to the body authorized to pass upon it, or to any of its 
 committees empowered to collect facts and hear arguments, and parties inter- 
 ested may lawfully contract to pay for this service, yet to secretly approach 
 the members of such a body, with a view to influence their action at a time 
 and in a manner that do not allow the presentation of opposite views, is 
 improper and unfair to the opposing interest ; and a contract to pay for this 
 irregular and improper service would not be enforced by the law. 
 
 The chief justice of an appellate court, ranking second to none in the 
 Union, says in a leading opinion on the subject, the following : 
 
 By the regular course of legislation organs are provided through which any 
 parties may fairly and openly approach the legislature, and be heard with proofs 
 and arguments respecting any legislative acts which they may be interested in, 
 whether public or private. These organs are the various committees appointed 
 to consider and report upon the matters to be acted upon by the whole body. 
 
 When private interests are to be affected notice is given of the hearings 
 before these committees, and thus opportunity is given to adverse parties to 
 meet face to face and obtain a fair and open hearing. And though these 
 committees properly dispense with many of the rules which regulate hearings 
 before judicial tribunals, yet common fairness requires that neither party shall 
 be permitted to have secret consultations and exercise secret influences that 
 are kept from the knowledge of the other party. The business of " lobby 
 members " is not to go fairly and openly before the committees and present 
 statements, proofs, and arguments that the other side has an opportunity to 
 meet, and refute if they are wrong, but to go secredy to the members and ply 
 them with statements and arguments that the other side cannot openly meet, 
 however erroneous they may be, and to bring their illegitimate influences to 
 bear upon them. If the " lobby member " is selected because of his political 
 or personal influence, it aggravates the wrong. If his business is to unite 
 various interests by means of projects that are called " logrolling," it is still 
 worse. The practice of inducing members of the legislature to act under the 
 influence of what they have eaten and drunk at houses of entertainment 
 tends to render those of them who yield to such influences wholly unfit to 
 act in such cases. The tendency and object of these influences are to obtain 
 by corruption what it is supposed cannot be obtained fairly. 
 
84 AMERICAN STATE GOVERNMENT 
 
 We have a statute requiring lobbyists to register with the Secretary of 
 State before engaging in the business of lobbying. If lobbying privately 
 and secretly with the individual is made an offense, it will go far to pre- 
 vent any lobbyist from seeing or attempting to see a legislator alone. If, 
 after a hearing is ended before any committee, further information is 
 desired by the committee, or any member or members of the committee, 
 or of the legislature, lobby counsel upon both sides will always cheerfully 
 respond to a call for a further public hearing in committee rooms or in 
 either chamber of the legislature. No fear need be entertained that the 
 members will be denied all of the information which it is possible for 
 those interested in legislation upon either side to furnish. 
 
 To exclude lobbyists from the legislative halls may promote the com- 
 fort and convenience of members of the Senate and assembly. It would, 
 in no measure, tend to eradicate the injustice and evil resulting from 
 private and secret lobbying. Indeed, it might tend to increase instead. 
 No. This legislature owes it to itself and to the people of the state to 
 destroy the secret lobby, root and branch. 
 
 Under the vigilant eyes of an awakened public the operations of the 
 lobby have not been so openly offensive to decent morals at this session 
 as at previous sessions. 
 
 But the personal appeals of paid lobbyists have been persistently 
 made to legislators throughout this session after hearings have been 
 closed, after those representing the other side have retired from the 
 capitol and from the city, believing, as they had the right to believe, 
 that the discussion had closed. 
 
 Personal, private lobbying is wrong in principle, and is absolutely cer- 
 tain to be vicious in practice. No legislation which has been enacted 
 will be secure, and that which the public interests will require in the 
 future will never be reasonably certain of attainment until the secret 
 lobby with its misrepresentation and its wrongdoing is prohibited by law. 
 
 I commend to your considerate judgment the enactment of a statute 
 making it a penal offense for a paid lobbyist to approach a legislator 
 privately or personally upon any matter which is the subject of legislation. 
 
 Respectfully submitted, 
 
 Robert M. La Follette, Governor 
 
 POPULAR GOVERNMENT IN OREGON ^ 
 
 By Senator Bourne 
 Mr. Preside7it : 
 
 The justice of all laws rests primarily on the integrity, ability, and dis- 
 interestedness of the individuals enacting them, those construing them, 
 and those administering them. On this assumption I believe the remarks 
 
 1 From the Congressional Record^ May 5, 1910. 
 
THE LEGISLATURE 85 
 
 I intend to make have a bearing on all legislation, and hence do not 
 hesitate to present them now while we have the interstate commerce bill 
 under consideration. 
 
 I think all will concede that the times seem awry. Unrest exists 
 throughout the civilized world. People are speculating as to the causes. 
 Daily uncertainty grows stronger as to future events. 
 
 In my opinion the basic cause is that people have lost confidence in 
 many of their public servants and bitterly resent attempted dictatorship 
 by " would-be " political bosses and representatives of special interests, 
 who desire to direct public servants and legislation for their own selfish 
 interests rather than assist in the enactment of laws guaranteeing justice 
 to all and special privileges to none. 
 
 Successful and permanent government must rest primarily on recog- 
 nition of the rights of men and the absolute sovereignty of the people. 
 Upon these principles is built the superstructure of our republic. Their 
 maintenance and perpetuation measure the life of the republic. These 
 policies, therefore, stand for the rights and liberties of the people, and 
 for the power and majesty of the government as against the enemies 
 of both. 
 
 The people have been shocked by the number of business and political 
 exposures which have been brought out in the last ten years. 
 
 At the time of Mr. Roosevelt's inauguration the tendency was to 
 measure national prosperity by property rather than by personal liberty. 
 The commercial force of society was rapidly throttling the police power 
 of the government. Political machines and bosses dictated the legislative 
 and administrative destinies of many communities and states. Mr. 
 Roosevelt, with his experience in practical politics, familiarity with gov- 
 ernmental operations, inherent honesty, dynamic energy, and limitless 
 courage, demonstrated that he measured up to the needs of the time, 
 and assumed leadership for reinstatement of the police power of the 
 government in supremacy over the commercial force of society. To him 
 belongs credit for reestablishment of these two great forces in their 
 proper relative positions. He awakened the public conscience, and the 
 result is a struggle throughout the nation between the advocates of what 
 I would term "popular government" and the advocates of delegated 
 government. 
 
 Direct Selection of Public Servants 
 
 In many instances the people have lost confidence in their public serv- 
 ants, the same as many stockholders have lost confidence in corpora- 
 tion management. The remedy in government is the direct selection by 
 the people of their public servants, with the resultant accountability of 
 the public servant to the people, and not to a political machine or boss. 
 I purposely use the word " selection " rather than " nomination," for to 
 my mind it more clearly expresses the idea of the responsibility of good 
 
86 AMERICAN STATE GOVERNMENT 
 
 citizenship. Selection implies the careful investigation of all and the 
 resultant choice of one. The remedy in corporation management is rigid 
 responsibility to government ; equal obedience to laws and equal account- 
 ability to stockholders, giving the government and the stockholders the 
 fullest publicity of its operations, including absolute honesty and simplic- 
 ity of its accounts, thus protecting the rights of the people and insuring 
 to all the stockholders proportional enjoyment in the fruits of successful 
 management. 
 
 Mr. President, I virill endeavor to deal in my remarks with what I 
 believe to be the great issue, not only in this country but throughout the 
 civilized world, namely popular against delegated government. 
 
 Much has been said in favor of representative government. I believe 
 in a truly representative government, but where the selection of public 
 ser\'ants is left to a political machine or boss, as is frequently the case 
 under our convention system, the tendency is toward misrepresentative, 
 and not a truly representative, form of government, notwithstanding the 
 election is supposedly by the people. 
 
 People capable of Self-government 
 
 There are doubtless some people who honestly believe that the people 
 as a whole have not reached the stage of development qualifying them 
 individually to participate in government. Others whom I credit with the 
 intelligence which I have seen manifested by them in other directions 
 assert the inability of the people to govern themselves as an excuse 
 rather than a conviction ; but I, Mr. President, from thirty years' expe- 
 rience in practical politics, am absolutely convinced not only that the 
 people are fully capable of governing themselves, but that they are 
 decidedly the best judges as to those individuals to whom they shall 
 delegate the truly representative power. 
 
 Individual selfishness, cupidity, and ambition are minimized in the 
 party or general electorate selections of public servants ; good general 
 service is demanded by the electorate, special service by the individual. 
 
 Hence my advocacy of popular government. By popular government 
 I mean direct legislation as far as practicable, popular selection of candi- 
 dates, and such regulation of political campaigns as will secure fair and 
 honest elections. Popular selection under the present stage of evolution 
 of our government can be obtained only by direct primary laws and com- 
 plete elimination of convention and caucus nomination of public officers. 
 
 Time was when a few self-constituted leaders in Oregon politics arro- 
 gated to themselves the prerogatives of government, and made their 
 assumption effective through illicit combinations and the use of money in 
 any and every quarter where necessary to their purposes of control, — 
 that is, they commercialized conventions, legislatures, and the adminis- 
 trative branches of the city, county, and state government. It was not a 
 
THE LEGISLATURE 87 
 
 condition peculiar to Oregon. It obtained, and I believe still obtains, in a 
 more or less flagrant degree, in every state in the Union ; and it had its 
 boldest, most unscrupulous executive genius in Boss Tweed, virho, recog- 
 nizing the opportunity of the crook in government by party through con- 
 vention nominations, declared he did not care who elected the candidates 
 so long as he had the power to nominate the ticket. 
 
 Revolting against these conditions, the state which I have the honor, 
 in part, to represent, has evolved the best known system of popular gov- 
 ernment, and, because of this conviction, I take this opportunity of pre- 
 senting not only to the Senate, but to the country, a brief analysis of the 
 Oregon laws bearing upon this question, with my own deductions as to 
 the improvement they show and the merits they possess. 
 
 Australian-Ballot Law 
 
 Oregon in 189 1 adopted the Australian ballot, which insures secrecy, 
 prevents intimidation, and reduces the opportunity for bribery. This, of 
 course, is a prerequisite to any form of popular government. 
 
 Registration Law 
 
 Supplementing the Australian ballot law, Oregon enacted in 1899 a 
 registration law applying to general elections, and enlarged its scope in 
 1904 in the law creating a direct primary. This law requires registration 
 prior to voting in either the general or the primary election, and provides 
 that before voting in a party primary the voter must, under oath, register 
 his party affiliation. Registration begins five months prior to the general 
 election. Registration books are closed ten days prior to the primary 
 election and opened again four days after the primary, and then kept open 
 until about twenty days before the general election. A voter may regis- 
 ter either by appearing at the office of the county clerk or by signing 
 registration blanks before a notary public or justice of the peace. 
 
 Upon the registration books are entered the full name of the voter, 
 his registration number, date of registration, his occupation, age, nativity, 
 date and place of naturalization, if any, and his place of residence. In 
 order to guard against fraud it is required that the voter shall give his 
 street and number, and, if he is not the head of the house he occupies, he 
 must show that fact and give the number of the room he occupies and 
 upon what floor of the building it is located. He must also sign the 
 register, if he can write. If he is unable to write his name, the reason 
 must be given. If his inability is due to a physical defect, the nature of 
 the infirmity must be noted. If it is due to illiteracy, a physical descrip- 
 tion of the man must be noted in the register. 
 
 All these facts are entered in precinct registers, which are placed in the 
 hands of election judges and clerks on election day, so that illegal voting 
 may be prevented. 
 
88 AMERICAN STATE GOVERNMENT 
 
 Any registered voter may be challenged and every nonregistered voter 
 is considered challenged. An unregistered person qualified as an elector 
 may be permitted to \-ote upon signing an affidavit setting forth all the 
 facts required in registration, and also securing the affidavits of six own- 
 ers of real property to the effect that they personally know him and his 
 residence, and believe all his statements to be true. 
 
 Thus the greatest boon of American citizenship, namely the right to 
 participate in government, is protected, and dead men, repeaters, and 
 nonresidents can no longer be voted in Oregon. 
 
 Initiative and Referendum 
 
 Oregon's next step in popular government was the adoption of the 
 initiative and referendum amendment to the constitution, which amend- 
 ment was adopted in June, 1902, by a vote of 62,024 to 5668. It pro- 
 vides that legislative authority shall be vested in a legislative assembly, 
 but that the people reserve to themselves the power to propose laws and 
 amendments to the constitution, and to enact or reject the' same at the 
 polls independent of the legislative assembly, and also reserve power to 
 approve or reject at the polls any act of the legislature. An initiative 
 petition must be signed by 8 per cent of the legal voters, as shown by 
 the vote for supreme judge at the last preceding general election, and 
 filed with the Secretary of State not less than four months before the 
 election. 
 
 A referendum petition need be signed by only 5 per cent of the voters 
 and filed with the Secretary of State within ninety days after final 
 adjournment of the legislature which passed the bill on which the refer- 
 endum is demanded. The legislature may itself refer to the people any 
 act passed by it. The veto power of the governor does not extend to 
 any measure referred to the people. 
 
 State publishes Publicity Pamphlets 
 
 In addition to the publicity incident to the circulation of the petitions, 
 the law provides that the Secretary of State shall, at the expense of the 
 state, mail to every registered voter in the state a printed pamphlet con- 
 taining a true copy of the title and text of each measure to be submitted 
 to the people, and the proponents and opponents of the law have the 
 right to insert in said pamphlet, at the actual cost to themselves of paper 
 and printing only, such arguments as they see fit to make. These 
 pamphlets must be mailed not later than fifty-five days before a general 
 election and twenty days before a special election. 
 
 The initiative develops the electorate, placing directly upon them the 
 responsibility for legislation enacted under its provision ; the referendum 
 elevates the legislature because of the possibility of its use in case of 
 
THE LEGISLATURE 89 
 
 undesirable legislation. Brains, ideas, and argument rather than money, 
 intimidation, and logrolling govern the standards of legislation. 
 
 Corporation attorneys must exercise their mental activities along con- 
 structive rather than destructive and avoidance lines. Possibility of scan- 
 dal is minimized, recipients of franchises freed from the imputation of 
 secret purchase, and general community confidence is secured. 
 
 Oregon's Experience Satisfactory 
 
 Since that amendment was adopted the people of Oregon have voted 
 upon twenty-three measures submitted to them under the initiative, five 
 submitted under the referendum, and four referred to the people by the 
 legislature. Nineteen measures were submitted at one election. That the 
 people acted intelligently is evident from the fact that in no instance has 
 there been general dissatisfaction with the result of the vote. The meas- 
 ures submitted presented almost every phase of legislation, and some of 
 them were bills of considerable length. 
 
 Results attained under direct legislation in Oregon compare so favor- 
 ably with the work of a legislative assembly that an effort to repeal the 
 initiative and referendum would be overwhelmingly defeated. No effort 
 has ever been attempted. 
 
 It has been asserted that the people will not study a large number of 
 measures, but will vote in the affirmative, regardless of the merits of 
 measures submitted. Experience in Oregon has disproved this, for the 
 results show that the people have exercised discriminating judgment. 
 They have enacted laws and have adopted constitutional amendments in 
 which they believed and have defeated those of which they did not 
 approve. 
 
 Concrete Illustrations 
 
 I will give several concrete illustrations. 
 
 Under the initiative in 1904 a local-option liquor law was adopted by 
 a vote of 43,316 to 40,194. Two years later the opponents of the local- 
 option law proposed an amendment in their interest, and this was 
 defeated by a vote of 35,297 to 45,144. It will be noticed that in the 
 first instance the issue was affirmatively presented and in the second 
 instance negatively, with a view to befogging the people, but the popu- 
 lar expression was the same in both. 
 
 For many years city charters in Oregon had been made the trading 
 stock of political factions in the legislature. The dominant faction 
 amended city charters as a reward to political allies. Traffic in local 
 legislation even went so far that it sometimes served as a consideration 
 in election of United States senators. But in 1906, having tired of this 
 disregard of the interest of good municipal government, the people, act- 
 ing under the initiative, adopted a constitutional amendment which took 
 
go AMERICAN STATE GOVERNMENT 
 
 awa\- from the legislature the power to enact or amend a city charter 
 and vested that power in the people of the municipalities, thus establish- 
 ing home rule. The amendment was adopted by a vote of 52,567 to 
 
 19,852- 
 
 In Oregon, as in many other states, there has long been a feeling 
 that certain classes of corporations which own very little tangible prop- 
 erty do not bear their proper share of the burden of taxation. Legisla- 
 tures failed to provide a remedy. For the purpose of securing a more 
 equitable distribution of the burden of taxation the state grange, proceed- 
 ing under the initiative, proposed a law levying a gross-earnings tax of 
 3 per cent on sleeping-car, refrigerator-car, and oil-car companies, which 
 measure was adopted by a vote of 69,635 to 6441. The grange also 
 proposed a similar law levying a gross-earnings tax of 3 per cent on ex- 
 press and 2 per cent on telephone and telegraph companies, and it was 
 adopted by a vote of 70,872 to 6360. Each of these gross-earnings tax 
 laws applied only to intrastate business. 
 
 That the people can and will study measures and vote with discrimina- 
 tion is shown by the record upon two appropriation bills passed by the 
 legislature of 1907. One of these bills proposed to increase the annual 
 fixed appropriation for the state university from ^47,500 to $125,000. 
 The other bill appropriated $100,000 for construction of armories for the 
 National Guard. The referendum was demanded upon both measures, 
 and both were submitted to a vote of the people at the general election 
 in 1908. There was full and fair discussion through the press, at public 
 meetings, and at sessions of the grange. The bill increasing the appro- 
 priation for the university was approved by the people by a vote of 
 44,115 to 40,535. The armory appropriation bill was defeated by a 
 vote of 33,507 to 54,848. 
 
 I shall cite but one more of many instances which show the manner 
 in which the initiative has been effective in Oregon. For a great many 
 years there had been efforts to secure adequate laws for the protection 
 of salmon in the Columbia River, but because of conflicting interests 
 between the upper river and the lower river, legislatures could not be 
 induced to enact laws that would protect the fish. As a consequence 
 the salmon fisheries were being destroyed. At the election in 1908 the 
 upper-river fishermen proposed under the initiative a bill practically pro- 
 hibitmg fishing on the lower river and the lower-river fishermen proposed 
 a bill forbidding fishing on the upper river. There was wide discussion 
 of both bills, and the suggestion was freely made that both bills should 
 be adopted. The people, disgusted with the failures of the legislatures 
 to enact suitable laws for the protection of fish, followed this suggestion, 
 and both bills were enacted. With fishing practically prohibited on both 
 sections of the river, the legislature in 1909 responded to the popular 
 demand by enacting, in conjunction with the legislature of the state of 
 Washington, a fishery law which provided adequate protection. I believe 
 
THE LEGISLATURE 
 
 91 
 
 I am safe in saying that this would not have been done but for the 
 popular adoption of the two fishery bills. 
 
 I do not care to take the time of the Senate to discuss each of the 
 measures that have been acted upon by the people of the state, but in 
 order that those who desire may have the opportunity to observe the 
 wide range the measures have taken and the attitude assumed toward 
 them by the people of Oregon, I ask consent to have published in the 
 Record in this connection a very brief summary of the titles of the 
 measures, together with the vote upon each. 
 
 Popular Vote upon Measures submitted to the People of Oregon 
 under either the initiative or referendum 
 
 No 
 
 1904 
 
 Direct primary law with direct selection of United States senator ^ 
 Local-option liquor law ^ . 
 
 1906 
 
 Omnibus appropriation bill, state institutions ''■ 
 
 Equal-suffrage constitutional amendment 1 
 
 Local-option bill proposed by liquor people ^ . . 
 
 Bill for purchase by state of Barlow toll road 1 
 
 Amendment requiring referendum on any act calling constitu 
 tional convention 1 . . 
 
 Amendment giving cities sole power to amend their charters 1. 
 
 Legislature authorized to fix pay of state printer 1 
 
 Initiative and referendum to apply to all local, special, and munici- 
 pal laws 1 ■ • ■ 
 
 Bill prohibiting free passes on railroads ' • 
 
 Gross-earnings tax on sleeping-car, refrigerator-car, and oil-car 
 companies^ ... .... 
 
 Gross-earnings tax on express, telephone, and telegraph com- 
 panies 1 
 
 1908 
 
 Amendment increasing pay of legislators from $120 to $400 per 
 session' 
 
 Amendment permitting location of state institutions at places 
 other than the capital ' 
 
 Amendment reorganizing system of courts and increasing supreme 
 judges from three to five ' • 
 
 Amendment changing general election from June to November' 
 
 Bill giving sheriffs control of county prisoners 2 ..... . 
 
 Railroads required to give public officials free passes " . 
 
 Bill appropriating $100,000 for armories" 
 
 56,205 
 43.316 
 
 43,918 
 36,902 
 35.297 
 31.525 
 
 47,661 
 52.567 
 63.749 
 
 47,678 
 57,281 
 
 69.635 
 70,872 
 
 19,691 
 
 41.971 
 
 30.243 
 65,728 
 60,443 
 28,856 
 33.507 
 
 16,354 
 40,198 
 
 26,758 
 47.075 
 45.144 
 44,527 
 
 18,751 
 
 19,852 
 
 9.571 
 
 16,735 
 16,779 
 
 6,441 
 6,360 
 
 68,892 
 
 40,868 
 
 50.591 
 18,590 
 
 30.033 
 59,406 
 54,848 
 
 1 Submitted under the initiative. 
 
 2 Submitted under the referendum upon legislative act. 
 8 Submitted to the people by the legislature. 
 
92 
 
 AMERICAN STATE GOVERNMENT 
 
 Bill increasing fixed appropriation for state university from 
 §47,500 to 5125,000 annually 1. . ... . . . . 
 
 Equal-suffrage amendment ' . ... 
 
 Fishery bill proposed by fish-wheel operators '■'. . . . . . . 
 
 Fishery bill proposed by gill-net operators ^ . . . . 
 
 Amendment giving cities control of liquor selling, poolrooms, 
 theaters, etc., subject to local-option law 2 . 
 
 Modified form of single-tax amendment^ . . . . . . 
 
 Recall power on public officials ^ .... . 
 
 Bill instructing legislators to vote for people's choice for United 
 States senators ^ ... 
 
 Amendment authorizing proportional-representation law ^ . . . 
 
 Corrupt-practices act governing elections ^ . 
 
 Amendment requiring indictment to be by grand jury ^ . . . 
 
 Bill creating Hood River County ^ 
 
 44.1 '5 
 36,858 
 46,582 
 56.130 
 
 39,442 
 32,066 
 58,381 
 
 69,668 
 48,868 
 54,042 
 52,214 
 43.948 
 
 40.535 
 58,670 
 40,720 
 30,280 
 
 52.346 
 60,87 1 
 31,002 
 
 21,162 
 34,128 
 31.301 
 28,487 
 26,778 
 
 Direct Legislation not Expensive 
 
 Anticipating the objection that direct legislation is expensive to the 
 state, I will say that the submission of a total of thirty-two measures at 
 three different elections in Oregon has cost the state $25,000, or an 
 average of about $781 for each measure. At the election in 1908 there 
 were nineteen measures submitted, at a cost to the state of $12,362, or 
 an average of about $651 each. Five of these nineteen measures were 
 submitted without argument. Upon the other fourteen measures there 
 were nineteen arguments submitted, for which the authors paid the cost, 
 amounting to $3157. 
 
 I have no hesitancy in saying that the people of Oregon feel satisfied 
 that they have received full value for the $25,000 they have spent for 
 the submission of measures under the initiative and referendum. The 
 only persons who raise the question of cost are those who would be 
 opposed to direct legislation if it were free of cost. I think I could cite 
 numerous instances of laws passed by the legislature which cost the 
 people much more than $25,000 without any tangible return, and per- 
 haps could cite a few measures which had been defeated by legislatures 
 with resultant loss to the people of many times $25,000. The cost of 
 legislation cannot always be measured in dollars. 
 
 People Intelligent and Fair 
 
 The people are not only intelligent, but fair and honest. When the 
 initiative and referendum was under consideration it was freely predicted 
 by enemies of popular government that the power would be abused and 
 
 1 Submitted under the referendum upon legislative act. 
 
 2 Submitted under the initiative. - 
 
THE LEGISLATURE 93 
 
 that capitalists would not invest their money in a state where property 
 would be subject to attacks of popular passion and temporary whims. 
 Experience has exploded this argument. There has been no hasty or 
 ill-advised legislation. The people act calmly and deliberately and with 
 that spirit of fairness which always characterizes a body of men who 
 • earn their living and acquire their property by legitimate means. Cor- 
 porations have not been held up and blackmailed by the people, as they 
 often have been by legislators. " Pinch bills " are unknown. The people 
 of Oregon were never before more prosperous and contented than they 
 are to-day, and never before did the state offer such an inviting field for 
 investment of capital. ' Not only are two transcontinental railroads build- 
 ing across the state, but several interurban electric lines are under con- 
 struction, and rights of way for others are in demand. 
 
 I have mentioned all of these facts for the purpose of showing that 
 the people of my state, and, I believe, the people of every other state, 
 can be trusted to act intelligently and honestly upon any question of 
 legislation submitted for their approval or disapproval. 
 
 The initiative and referendum is but one of the features of popular 
 government in Oregon. It has been the means by which other reforms 
 and progressive laws and constitutional amendments have been secured, 
 for it has been found that the people cannot always get the laws they 
 desire through the legislature, but can get them through resort to the 
 initiative. 
 
 Direct-Primary Law 
 
 The next step after the adoption of the initiative and referendum was 
 the adoption, in 1904, by a vote of 56,205 to 16,354, of a direct-primary 
 law, which is designed to supersede the old and unsatisfactory conven- 
 tion system. The Oregon direct-primary law provides for a primary elec- 
 tion to be held forty-five days prior to the general election at the usual 
 polling places and with the usual three election judges and three clerks 
 in charge, appointed by the county courts. Not more than two judges 
 or clerks can be members of the same political party. Two sets of 
 ballots are provided, one for the Democratic party and one for the 
 Republican party. Any party polling 25 per cent of the vote at the 
 previous election is brought under the provisions of the direct-primary 
 law, but thus far only the Democratic and RepubUcan parties are 
 affected by it. 
 
 Any legal voter may become a candidate in the primaries for nomina- 
 tion for any office by filing a petition signed by a certain per cent of the 
 voters of his party. If the nomination is for a municipal or county 
 office, the petition must include registered electors residing in at least 
 one fifth of the voting precincts of the county, municipality, or district. 
 If it be a state or district office and the district comprises more than one 
 county, the petition must include electors residing in each of at least one 
 
94 AMERICAN STATE GOVERNMENT 
 
 eighth of the precincts in at least two counties in the district. If it be 
 an office to be voted for in the state at large, the petition must include 
 electors residing in each of at least one tenth of the precincts in each of 
 at least seven counties of the state. If it be an office to be voted for in 
 a congressional district, the petition must include electors residing in at 
 least one tenth of the precincts in each of at least one fourth of the 
 counties in the district The number of signers required is at least 
 2 per cent of the party vote in the electoral district, but not more than 
 one thousand signers are required for a state or congressional office nor 
 more than five hundred in any other case. Petitions must be filed for a 
 state or district office at least twenty days before the primary election, 
 and for county or municipal offices fifteen days before the election. 
 Names of the candidates are arranged on the ballots in alphabetical 
 order. The ballot for the Republican party is printed on white paper, that 
 for the Democratic party on blue paper, and that for any other party on 
 yellow paper. The Australian-ballot form is used in the primaries. No 
 elector is qualified to vote at a party-primary election unless he has 
 registered and designated, under oath, his party affiliation, except that 
 he may register at the polls on election day by filing an affidavit, verified 
 by six freeholders of his precinct, certifying to his legal qualifications, in 
 which affidavit he must also designate his party affiliation. 
 
 Party Integrity Protected 
 
 No voter is required to designate his party affiliation in order to vote 
 at the general election, but registration of party affiliation is a prerequi- 
 site to participation in a party primary. This requirement prevents the 
 participation of members of one party in the primaries of another party. 
 The right of each party to choose its own candidates is thus protected, 
 and an evil all too common where restrictive party-primary laws are not 
 in force is avoided. 
 
 Our direct-primary law further provides that the candidate in his 
 petition shall, among other things, agree to " accept the nomination and 
 will not withdraw "; and, if elected, " will qualify as an officer," implying, 
 of course, that he will also serve. Each candidate is entitled to have 
 placed in his petition a statement in not to exceed one hundred words, 
 and on the ballot, after his name, a legend in not to exceed twelve words, 
 setting forth any measures or principles he especially advocates. 
 
 In the case of a legislator's nomination the candidate may, in addition 
 to his statement, not exceeding one hundred words specifying measures 
 and principles he advocates, also subscribe to one of two statements ; but 
 if he does not so subscribe, he shall not on that account be debarred from 
 the ballot. It will be seen, therefore, that three courses are open to him. 
 He may subscribe to Statement No. i , as follows : 
 
THE LEGISLATURE 
 
 95 
 
 I further state to the people of Oregon, as well as to the people of my legis- 
 lative district, that during my term of office I shall always vote for that candi- 
 date for United States senator in Congress who has received the highest 
 number of the people's votes for that position at the general election next 
 preceding the election of a senator in Congress, without regard to my individual 
 preference. 
 
 Or he may subscribe to Statement No. 2, as follows : 
 
 During my term of office I shall consider the vote of the people for United 
 States senator in Congress as nothing more than a recommendation which I 
 shall be at Uberty to wholly disregard if the reason for doing so seems to me 
 to be sufficient. 
 
 Or he may be perfectly silent on the election of United States senator. 
 It is entirely optional with the candidate. 
 
 Popular Vote for United States Senator 
 
 The law further provides that the United States senators may be 
 nominated by their respective parties in the party primaries, and the 
 candidate receiving the greatest number of votes thereby becomes the 
 party nominee. Then in the general election the party nominees are 
 voted for by the people, and the individual receiving the greatest number 
 of votes in the general election thereby becomes the people's choice for 
 United States senator. 
 
 Notwithstanding that our primary-election law embodying these state- 
 ments, particularly Statement No. i, was passed by a popular vote of 
 approximately 56,000 for to 16,000 against, the opponents of the law 
 charged that the people did not know what they were doing when they 
 voted for it. Therefore the advocates of the election of senators by the 
 people and of the enforcement of Statement No. i submitted to the 
 people under the initiative in 1908 the, following bill: 
 
 Be it enacted by the people of the state of Oregon : 
 
 Section i. That we, the people of the state of Oregon, hereby instruct 
 our representatives and senators in our legislative assembly, as such officers, 
 to vote for and elect the candidates for United States senators from this state 
 who receive the highest number of votes at our general elections. 
 
 Although there was no organized campaign made for the adoption of 
 this bill other than the argument accompanying its submission, -while the 
 opponents of the primary law assailed it vehemently, the basic principle 
 of Statement No. i and the election of United States senators by the 
 people was again indorsed by the passage of the bill by a popular vote 
 of 69,668 for it to 21,162 against it, or by nearly 3^ to i. 
 
96 AMERICAN STATE GOVERNMENT 
 
 How A Democrat was elected Senator 
 
 Mr. President, in this connection I deem it proper to divert for a time 
 from an explanation of our primary law and give a concrete illustration 
 of its operation. Both my colleague, Senator Chamberlain, and myself 
 were selected by the people and elected by the legislature under the pro- 
 vision of this law. Opponents of popular government, and especially of 
 the election of United States senators by a direct vote of the people, 
 have bitterly assailed Statement No. i of our law because a legislature, 
 overwhelmingly Republican, elected my colleague, who was a candidate 
 selected by the Democratic party and nominated by the whole electorate 
 of the state as the people's choice of our state for United States senator. 
 Upon reflection I think every intelligent man who is honest with himself 
 must concede that this fact, instead of being the basis of a criticism, is 
 the highest kind of evidence as to the efficacy of the law, and every ad- 
 vocate of the election of United States senators by a popular vote must 
 realize that Oregon has evolved a plan through its Statement No. i , pro- 
 vision of its primary law, wherein, in effect, the people enjoy the privilege 
 of selecting their United States senators, and, through the crystallization 
 of public opinion, the legislative ratification of their action. 
 
 The Oregon legislature consists of ninety members, thirty in the Sen- 
 ate and sixty in the House, forty-six making the necessary majority on 
 full attendance for the election of United States senator. Fifty-one mem- 
 bers out of ninety of the legislature which elected my colleague, Senator 
 Chamberlain, were subscribers to Statement No. i, making on joint bal- 
 lot a majority of six out of a total of ninety members. All of these fifty- 
 one members subscribed to Statement No. i pledge voluntarily, and it 
 was so subscribed to by them from a personal belief in the desirability 
 of the popular election of United States senators, and for the purpose 
 of securing for themselves, from the electorate, preferment in the election 
 to the office sought ; the consideration in exchange for such preferment 
 was to be by them, as the legally constituted representatives of the elec- 
 torate in their behalf, the perfunctory confirmation of the people's selec- 
 tion of United States senator as that choice might be ascertained under 
 the provisions of the same law by which the legislators themselves secured 
 nomination to office. 
 
 To further illuminate the situation, I will state that in the primaries 
 held in April, 1908, H. M. Cake received the Republican nomination for 
 United States senator, and my colleague. Senator Chamberlain, then 
 governor of the state, received the Democratic nomination for United 
 States senator. At the general election in June, Senator Chamberlain de- 
 feated Mr. Cake, notwithstanding the state was overwhelmingly Repub- 
 lican, thereby developing from the Democratic candidate into the people's 
 choice for United States senator. The normal Republican majority in 
 Oregon, I think, is from fifteen thousand to twenty thousand. With full 
 
THE LEGISLATURE 97 
 
 recognition of Governor Chamberlain's ability and fitness for the office, 
 the fact that for nearly six years he made the best governor Oregon ever 
 had, and considering that undoubtedly he is the most popular man in our 
 state, I deem it but just to the law, and a proper answer to the criticism 
 of enemies of the law that it destroys party lines and integrity, to state 
 that, in my opinion. Senator Chamberlain received the votes of several 
 thousand Republican enemies of the law, who believed that in selecting 
 Governor Chamberlain, a Democrat, they would prevent a Republican 
 legislature from ratifying the people's selection, obeying the people's in- 
 structions, and electing as United States senator the individual, regard- 
 less of party, that the people might select for that office. Thus they 
 hoped to make the primary law and Statement No. i odious, and sought 
 to create what they thought would be an impossible condition by forcing 
 upon a Republican legislature for confirmation the popularly designated 
 Democratic candidate for the United States Senate. They failed to 
 realize that, greater than party and infinitely greater than any individual, 
 the people's choice becomes a representative of the principle and of the 
 law ; that the intelligence and integrity of the whole electorate of the 
 state, as well as the integrity and loyalty of the members of the legisla- 
 ture, were at stake ; and from any honorable viewpoint the mere intima- 
 tion of the possibility of the legislature or any member of the legislature 
 failing conscientiously to fulfill his pledge or loyally obey the instructions 
 of the people would not only be an insult to the individual members of 
 the legislature, but an insult to the intelligence, independence, and pa- 
 triotism of the Oregon electorate that they would permit such action to 
 go unnoticed or without holding the culprit to a rigid responsibility for 
 his treason. 
 
 No Oath more Sacred 
 
 Let us again consider the wording of this Statement No. i pledge, 
 taken by fifty-one members of the Oregon legislature : 
 
 Statement No. i 
 
 I further state to the people of Oregon, as well as to the people of my leg- 
 islative district, that during my term of office I will always vote for that candi- 
 date for United States senator in Congress who has received the highest 
 number of the people's votes for that position at the general election next pre- 
 ceding the election of a senator in Congress, without regard to my individual 
 preference. 
 
 No oath could be more sacred in honor, no contract more binding, no 
 mutual consideration more definite, than is contained in this Statement 
 No. I pledge, and no parties to a contract could be of more consequence 
 to government and society than the electorate upon the one side and its 
 servants upon the other. 
 
98 AMERICAN STATE GOVERNMENT 
 
 Under the United States Constitution there can be no penalty attached 
 to the law. The legislator breaking his sacred pledge cannot be im- 
 prisoned or fined ; hence he is doubly bound by honor to redeem his vol- 
 untary obligations. Failure to do so would not only brand him as the 
 destroyer of a sacred trust, but as the most contemptible of cowards, 
 because legally immune from punishment for his perfidy. 
 
 Yet, Mr. President, there were efforts made to dishonor our state and 
 our public servants. During the session of the legislature a former gov- 
 ernment official, an assistant to the chairman of the Republican National 
 Committee, appeared in Oregon and, I am informed, promised federal 
 appointments to legislative members if they would disregard their State- 
 ment No. I pledges to the electorate. The effort was made by the 
 enemies of the law to create the impression that by reason of this per- 
 son's relations with the chairman of the Republican National Committee 
 during the national campaign, he would be able to deliver these promised 
 federal appointments in case Statement No. i subscribers sold their honor 
 and betrayed their trust. 
 
 I mention these facts to show that the greatest possible strain was 
 placed upon our law, and to the credit of the fifty-one subscribers of 
 Statement No. i in that legislature be it said that every one of those sub- 
 scribers voted in accordance with his solemn obligation. But I would 
 call the attention of the Senate to the fact that, notwithstanding the people 
 of the state had passed under the initiative the bill I have referred to, in- 
 structing all the members of the legislature to vote for the people's choice 
 for United States senator, not a single member of the legislature obeyed 
 said instructions except the Statement No. i subscribers. 
 
 An Evolution of Practical Politics 
 
 Mr. President, Statement No. i was an evolution of many years' ex- 
 perience with practical and commercial politics. We doubtless all have 
 found in individual cases that men's memories, pledges, and agreements 
 were a negligible quantity, but I think we in Oregon have demonstrated 
 that our direct-primary law contains a pledge that will hold any sane man, 
 regardless of his cupidity, ambition, cowardice, or temerity. 
 
 Other Provisions of Primary Law 
 
 Resuming consideration of the direct primary: The returns from a 
 primary election are canvassed in the same manner as the returns from 
 a general election, and the candidate receiving the highest vote for each 
 office is declared the nominee of his party. Candidates of parties other 
 than those polling 25 per cent of the total vote of the state may be 
 nominated without participating in the direct primary, but by means 
 of petition or mass meeting. No candidate nominated otherwise than in 
 
THE LEGISLATURE 
 
 99 
 
 the direct primary can use either the word " Republican " or " Demo- 
 crat " in any form ; that is, the nominees of the direct primary are en- 
 titled to the party designation in the general election, and no opposition 
 candidate can designate himself as an " Independent Republican " or 
 " Progressive Republican," or use any other qualifying term which in- 
 cludes the word " Republican " or " Democrat." These provisions secure 
 to the nominees of the direct primary the exclusive right to their party 
 designation on the ballot in the general election. Each candidate in the 
 direct primary is entitled to have placed in his petition for nomination a 
 statement containing not to exceed one hundred words, and on the ballot 
 in the primary and general election a legend of not more than twelve 
 words, specifying any measures or principles he especially advocates. 
 
 In my opinion the direct primary is the only practicable method of 
 fully securing to the people their right to choose their public servants. 
 
 Convention Nominee under Obligation to a Boss 
 
 Under the convention system the members of a party delegate their 
 power of selection of candidates to the members of a convention. To my 
 mind this system is most pernicious, because the party electorate feels 
 that its responsibility ceases with the selection of its convention dele- 
 gates. Hence the responsibility of citizenship is weakened and shiftless- 
 ness encouraged. 
 
 As soon as the delegates to the convention are chosen the power of 
 selection of public servants becomes centralized in a few and opportunity 
 is extended to individuals and interests who wish to use public servants 
 for selfish or ulterior purposes. Influences adverse to the general wel- 
 fare are immediately brought to bear upon this body of delegates. Fac- 
 tions are created, combinations effected, and party disruption frequently 
 results. Often a convention nominates a man for public office who, prior 
 to the convention, was never seriously considered as a probable nominee. 
 
 In my thirty years' experience in politics quite frequently have I seen 
 this the case. This strengthens my conviction that the prevailing system 
 of convention selections of party candidates is not representative, but 
 misrepresentative, form of government. The people certainly have no 
 voice in the selection of candidates when their temporary representatives 
 had no idea of making a selection until occurrences transpiring during 
 the convention determined their action. 
 
 Let us look at the system in vogue in the selection of delegates. In 
 most cases where convention nominations are made we can trace back 
 to the political boss and machine the preparation of a slate of delegates. 
 In the selection of the individuals composing the slate the political boss 
 has in mind the perpetuation of his own power, and selects individuals 
 whose interests are identical with his or whom he thinks he can direct 
 and control, though occasionally, if anticipating a struggle, he will select 
 
lOO AMERICAN STATE GOVERNMENT 
 
 a few men whose standing in the community will bring strength to the 
 slate he has prepared in order to carry out his purposes. Independent 
 men are selected only where it is deemed necessary by the political boss 
 to deceive the public and secure sufficient support from the personal in- 
 fluence of those few selections to carry through the slate made up chiefly 
 of his willing tools. This system prevails not only in selection of dele- 
 gates to county conventions, but in selection of delegates to congressional, 
 state, and national conventions as well. The result is inevitable that the 
 delegates nominate candidates whom the machine and political bosses 
 desire, except in rare cases where a few independent men are able, by 
 presentation of arguments against the qualifications of a machine candi- 
 date, to demonstrate to the convention the probability of the defeat of 
 the man slated for the position. Frequently, of course, a case is pre- 
 sented where the boss has made promises to various aspirants for the 
 same office, in which case he excuses himself to the disappointed aspirant 
 by explaining that he was unable to control the convention. Thus men- 
 dacity and treachery are fostered by the convention system, which, by the 
 primary system, are absolutely eliminated. 
 
 Under the convention system the nominee realizes that his nomination 
 is due chiefly, if not entirely, to the boss. With this knowledge naturally 
 goes a feeling of obligation, so that the nominee, when elected, is desirous, 
 whenever possible, of acceding to the wishes of the man to whom his 
 nomination is due. Thus the efficiency and independence of the public 
 servant is seriously affected and his duty to the public in many cases 
 completely annihilated. 
 
 Nominee of Direct Primary Responsible to People Alone 
 
 How different in its operation is the direct primary. The man who 
 seeks a nomination under the direct-primary system must present before 
 the members of his party the policies and principles by which he will be 
 governed if nominated and elected. He must submit to them his past 
 record in public and private life. Promises made to political bosses or 
 machine managers will have no beneficial influence in determining the 
 result, and therefore the candidate is not tempted to place himself under 
 obligations to any interests adverse to those of the general public. The 
 members of a party have it within their power to determine which of the 
 candidates best represents their ideas and wishes. After they have made 
 their selections the candidates of opposing parties must stand before the 
 people at the general election, when a choice will be made between 
 them. A public servant thus chosen owes his election to no faction, 
 machine, or boss, but to the members of his party and the electorate 
 of his state or district. He is accountable to them alone for his conduct 
 in office, and has therefore every incentive to render the best possible 
 public service. How different in all essentials from the position of the 
 
THE LEGISLATURE lOl 
 
 candidate who has received his nomination at the hands of a convention 
 controlled by a political machine. 
 
 The great masses of the people are not only intelligent, but honest. 
 They have no selfish interests to serve and ask nothing of their public 
 officials but faithful and efficient service. Only the very few have inter- 
 ests adverse to those of the general welfare. The people therefore act 
 only for public good when they choose between candidates for the nomi- 
 nation or candidates for election. 
 
 The direct primary encourages the people of the country to study pub- 
 lic questions and to observe and pass judgment upon the acts of their 
 public officials. This in itself tends very strongly to the building up of 
 a better citizenship. 
 
 Honest selections mean honest government and better public servants. 
 
 Public servants who lack confidence in the intelligence or honesty of 
 the people will find their feelings reciprocated. 
 
 Primary Laws protect Parties 
 
 Many claim that primary laws destroy party. In my opinion they pro- 
 tect and cement parties. Party success depends, under primary laws, 
 upon the ideas and principles advocated and the nominations made by 
 the parties in their primaries. If a majority party fails to make proper 
 nominations, or if the minority party has better material in its electorate, 
 then a minority party would rapidly develop into a majority party and 
 rightly so. Under a direct-primary law no individual can acquire a large 
 personal following or build up a personal organization, except such a fol- 
 lowing as would support the individual on account of the principles ad- 
 vocated by him or the demonstration made by him as a public servant. 
 But no man would be able to transfer such a following for or against 
 another individual, though he might influence thousands or hundreds of 
 thousands of voters to support his ideas, constructive suggestions, or pro- 
 posed solution of pending problems. This does not destroy party, but 
 elevates and strengthens it, and fortunate indeed is that party which 
 possesses in its electorate one or more individuals who are able to advance 
 new ideas or evolve solutions which appeal to the sound judgment of 
 his fellow men. 
 
 Popular Selection of President and Vice President 
 
 For years the desirability of popular selection of candidates for Presi- 
 dent and Vice President has grown upon my mind. By adoption of such 
 a plan presidents would be relieved of prenomination or preelection ob- 
 ligations, except the obligation of good service to all the people. Thus 
 accountability to the people alone would be established and aspirants for 
 the presidency would be free from the necessity of consulting the wishes 
 
I02 AMERICAN STATE GOVERNMENT 
 
 of men who make and manipulate conventions. To render good public 
 service would be the sole desire, for reelection would depend upon dem- 
 onstration of capability and fitness for office. Because of this conviction 
 I have arranged to submit, under the initiative, to the people of Oregon 
 at the next general election a bill further enlarging the scope of our pres- 
 ent primary law. It provides for the direct-primary election of delegates 
 to national conventions, selections of presidential electors, and gives the 
 opportunity to the elector in his party primary to express his preference 
 for President and Vice President. 
 
 I am confident that the people of Oregon will enact this law, and I 
 hope that other states will follow her example, in which event, through 
 the crystallization of public opinion, a method of popular selection of 
 presidents and vice presidents would be secured without violation of 
 the federal Constitution. 
 
 Not a Revolutionary Change 
 
 The declaration by each state of its choice for President would be in 
 no sense a wider departure from the Constitution than was the trans- 
 formation of the electoral college into a mere registering or recording 
 board, yet no one now thinks such change in any wise revolutionary. The 
 theory of the Constitution was that each state should choose a body of 
 electors who should have choice — election — as to those for whom they 
 should vote for President and Vice President. This theory we find ex- 
 pressed in all the expository letters and pamphlets written by those who 
 drafted the Constitution. The electors were to be free men, bound to 
 no candidate nor to any party. They were to meet and survey the whole 
 country, choosing therefrom, according to their own unhampered and 
 wisest judgment, the man best fitted to be the head of the nation. This 
 was the law in 1789, and it is the law to-day. Theoretically and legally 
 the electoral college which casts its perfunctory vote for Mr. Taft and 
 Mr. Sherman might have elected Mr. Bryan and Mr. Kerns. Had this 
 been done, all the vast power of the Supreme Court could not have set 
 the election aside or compelled a true registration of the popular decision 
 as expressed at the polls. The Constitution of the United States was 
 changed a hundred years ago by force of mere popular acceptation and 
 general usage, so that its machinery to-day is used to effect an end which 
 it does not in its letter express, and did not in its conception anticipate. 
 We have made the constitutional machinery suit our idea of the way this 
 government should be conducted. 
 
 We have said that it was better that we should, by means of political 
 parties, choose candidates and by moral force bind the electors whom we 
 nominate to vote for such candidates, than that we should leave the elec- 
 tors we might choose free to do as they saw fit. We have converted 
 the elector into an agent — a messenger if you will — whose honorable 
 
THE LEGISLATURE 103 
 
 duty it is to cast a ballot for one who may not be his personal choice for 
 President, or whom, indeed, he may regard as unfitted for the position of 
 President. The constitutional theory has been abandoned and one more 
 democratic has been substituted. We evolved a presidential-election plan 
 which, while departing from the phUosophy of the makers of our national 
 organic law, preserved its letter and made it subserve the purpose of a 
 society more highly developed than that existent when the law was made. 
 This is the history of all written law. There is nothing startling in the 
 proposal that the Constitution or any other law shall be so interpreted as 
 to meet modern needs and thought. We moved toward democracy when 
 we abolished the elector as an elector and left him but a figurehead, and 
 it will be a much less radical move to give instructions by popular vote 
 to the delegate who names the party candidate. Indeed, it would appear 
 that to follow the latter course would be to do no more than institute a 
 procedure complementary to the former. 
 
 Corrupt-Practices Act 
 
 The next step in popular government in Oregon after the adoption of 
 the direct-primary law was the adoption of a corrupt-practices act, which 
 the legislature had refused to enact, but which the people of the state 
 adopted under the initiative. 
 
 The corrupt-practices act was adopted under the initiative in 1908 by 
 popular vote of 54,042 to 31,301. It provides that no candidate for 
 office shall expend in his campaign for nomination more than 15 per 
 cent of one year's compensation of the office for which he is a candidate, 
 provided that no candidate shall be restricted to less than $100. 
 
 Publicity Pamphlet 
 
 The act provides, however, for the publication of a pamphlet by the 
 Secretary of State for the information of voters, in which pamphlet a can- 
 didate in the primary campaign may have published a statement setting 
 forth his qualifications, the principles and policies he advocates and favors, 
 or any other matter he may wish to submit in support of his candidacy. 
 Each candidate must pay for at least one page, the amount to be paid 
 varying from $100 for the highest office to $10 for the minor offices. 
 Every candidate may secure the use of additional pages at $100 per 
 page, not exceeding three additional pages. Any person may use space 
 in this pamphlet in opposition to any candidate, the matter submitted by 
 him being first served upon the candidate and the space being paid for 
 the same as in the case of candidates. The matter submitted in opposi- 
 tion to candidates must be signed by the author, who is subject to the 
 general laws regarding slander and libel. Information regarding state and 
 congressional candidates is printed in a pamphlet issued by the Secretary 
 
I04 AMERICAN STATE GOVERNMENT 
 
 of State, one copy being mailed to each registered voter in the state. 
 Pamphlets regarding county candidates are issued by the county clerk 
 and mailed to each voter in the county. These pamphlets must be mailed 
 at least eight da)'s before the primary election. The amount of money 
 paid for space in the public pamphlet of information is not considered 
 in determining the amount each candidate has expended in his campaign ; 
 that is, he is entitled to expend in his primary campaign 15 per cent of 
 one )-ear's compensation in addition to what he pays for space in the 
 public pamphlet. 
 
 Prior to the general election the executive committee or managing of- 
 ficers of any political party or organization may file with the Secretary 
 of State portrait cuts of its candidates and typewritten statements and 
 arguments for the success of its principles and the election of its candi- 
 dates, and opposing or attacking the principles and candidates of all other 
 parties. This same privilege applies to independent candidates. These 
 statements and arguments are printed in a pamphlet and mailed to the 
 registered voters of the state not later than the tenth day before the 
 general election. 
 
 Each party is limited to twenty-four pages, and each independent can- 
 didate to two pages, each page in this pamphlet being charged for at 
 the rate of S50 per page. In the campaign preceding the general election 
 each candidate is limited in campaign expenditures to i o per cent of one 
 year's compensation. 
 
 For the purposes of this act the contribution, expenditure, or liability of 
 a descendant, ascendant, brother, sister, uncle, aunt, nephew, niece, wife, 
 partner, employer, employee, or fellow official or fellow employee of a 
 corporation is deemed to be that of the candidate himself. Any person 
 not a candidate spending more than $50 in a campaign must file an 
 itemized account of his expenditures in the office of the Secretary of 
 State or the county clerk, and give a copy of the account to the candidate 
 for whom or against whom the money was spent. 
 
 Legitimate Use of Money within Limit 
 
 While the corrupt-practices act limits the candidate to the expenditure 
 of 15 per cent of one year's salary in his primary campaign and 10 per 
 cent of a year's salary in the general campaign, in addition to what he 
 pays for space in the publicity pamphlet, yet the law does not prohibit 
 any legitimate use of money within this limitation. The act makes it pos- 
 sible for a man of moderate means to be a candidate upon an equality 
 with a man of wealth. 
 
 Let us take a concrete example as a means of illustrating the opera- 
 tion of Oregon's corrupt-practices act. The salary of the governor is 
 $5000 a year. A candidate for the nomination for governor may take 
 a maximum of four pages in the publicity pamphlet, and thus, at a cost 
 
THE LEGISLATURE I05 
 
 of $400, be able to reach every registered voter of his party in the entire 
 state. In addition to that $400 he may spend $750, or 15 per cent of one 
 year's salary, in any other manner he may choose, not in violation of the 
 corrupt-practices act. A candidate may purchase space in the advertising 
 columns of a nevi^spaper, but in order that this paid advertising shall not be 
 mistaken for news, the law requires that all paid articles be marked as such. 
 
 The law expressly provides that none of its provisions shall be con- 
 strued as relating to the rendering of services by speakers, writers, pub- 
 lishers, or others for which no compensation is asked or given ; nor to 
 prohibit expenditure by committees of political parties or organizations 
 for public speakers, music, halls, lights, literature, advertising, office rent, 
 printing, postage, clerk hire, challengers or watchers at the polls, travel- 
 ing expenses, telegraphing or telephoning, or the making of poll lists. 
 
 The successful nominee in the primary may spend in his general cam- 
 paign 10 per cent of one year's salary, this expenditure, in the case of 
 a candidate for governor, being $500. In addition to this 10 per cent of 
 a year's salary he may contribute toward the payment for his party's 
 statement in the publicity pamphlet to be mailed by the Secretary of State 
 to every registered voter. In the publicity pamphlet for the general cam- 
 paign each party may use not to exceed twenty-four pages, at $50 per 
 page, making the total cost to the party committee ^1200, or about 
 1 1 00 for each candidate. 
 
 The candidate is therefore limited to an expenditure of $600 in his 
 general campaign, only $100 of which is necessary in order to enable him 
 to reach every registered voter. He could reach every registered voter 
 in his party in the primary campaign for $400. Under no other system 
 could a candidate reach all the voters in two campaigns at a total cost 
 of ^500. 
 
 Improper Acts Prohibited 
 
 The Oregon corrupt-practices act encourages and aids publicity, but 
 prohibits the excessive or improper use of money or other agencies for 
 the subversion of clean elections. Among the acts which are prohibited 
 I may mention these : 
 
 Promises of appointments in return for political support. 
 
 Solicitation or acceptance of campaign contributions from or payment 
 of contributions by persons holding appointive positions. 
 
 Publication or distribution of anonymous letters or circulars regarding 
 candidates or measures before the people. 
 
 Sale of editorial support or the publication of paid political advertismg 
 without marking it " paid advertising." 
 
 Use of carriages in conveying voters to the polls. 
 
 Active electioneering or sohciting votes on election day. 
 
 Campaign contributions by quasi-public or certain other important 
 classes of corporations generally affected by legislation. 
 
I06 AMERICAN STATE GOVERNMENT 
 
 Intimidation or coercion of voters in any manner. 
 
 Soliciting candidates to subscribe to religious, charitable, public, and 
 semipublic enterprises ; but this does not prohibit regular payments to 
 any organization of which the candidate has been a member, or to which 
 he has been a contributor for more than six months before his candidacy. 
 
 Contribution of funds in the name of any other than the person fur- 
 nishing the money. 
 
 Treating by candidates as a means of winning favor. 
 
 Payment or promise to reward another for the purpose of inducing 
 him to become or refrain from becoming or cease being a candidate, or 
 solicitation of such consideration. 
 
 Betting on an election by a candidate, or betting on an election by any 
 other person, with intent to influence the result. 
 
 Attempting to vote in the name of another person, living, dead, or 
 fictitious. 
 
 Publicity of Campaign Expenditures 
 
 There is no interference with such legitimate acts as tend to secure 
 full publicity and free expression of opinion. Personal and political liberty 
 is in no way infringed upon, the only purpose being to prohibit the ex- 
 cessive use of money, promises of appointment, or deception and fraud. 
 
 The corrupt-practices act requires that every candidate shall file an 
 itemized statement of his campaign expenditures within fifteen days after 
 the primary election, including in such statement not only all amounts 
 expended, but all debts incurred or unfulfilled promises made. 
 
 Every political committee must have a treasurer, and cause him to keep 
 a detailed account of its receipts, payments, and liabilities. Any com- 
 mittee or agent or representative of a candidate must file an itemized 
 statement of receipts and expenditures within ten days after the election. 
 The books of account of any treasurer of any political party, committee, 
 or organization during an election campaign shall be open at all reason- 
 able office hours to the inspection of the treasurer and chairman of any 
 opposing political party or organization for the same electoral district. 
 Failure to file statements as required by law is punishable by fine. 
 
 The candidate violating any section of the corrupt-practices act forfeits 
 his right to the office. Any other person violating any section of this act 
 is punished by imprisonment of not more than one year in the county jail 
 or a fine of not more than $5000, or both. The candidate is also subject 
 to the same penalties. 
 
 The Recall 
 
 The final step in the establishment of popular government in Oregon 
 was the adoption of the recall amendment to the constitution, which was 
 adopted in 1908 by a vote of 58,381 to 31,002. Under this amendment 
 any public officer may be recalled by the filing of a petition signed by 
 
THE LEGISLATURE 107 
 
 25 per cent of the number of electors who voted in his district in the 
 preceding election. The petition must set forth the reasons for the re- 
 call, and if the officer does not resign within five days after the petition 
 is filed, a special election must be ordered to be held within twenty days 
 to determine whether the people will recall such officer. On the ballot 
 at such election the reasons for demanding the recall of said officer may 
 be set forth in not more than two hundred words. His justification of his 
 course in office may be set forth in a like number of words. He retains his 
 office until the results of the special election have been officially declared. 
 No petition can be circulated against any officer until he has held office 
 six months, except that in the case of a member of the state legislature it 
 may be filed at any time after five days from the beginning of the first 
 session after his election. At the special election the candidate receiving 
 the highest number of votes is declared elected. The special election is 
 held at public expense, but a second recall petition cannot be filed against an 
 officer unless the petitioners first pay the entire expense of the first recall 
 election. 
 
 The Best System of Popular Government 
 
 Mr. President, I reiterate that Oregon has evolved the best system of 
 popular government that exists in the world to-day. 
 
 The Australian ballot assures the honesty of elections. 
 
 The registration law guards the integrity of the privilege of American 
 citizenship, — participation in government. 
 
 The direct primary absolutely insures popular selection of all candi- 
 dates and establishes the responsibility of the public servant to the elec- 
 torate and not to any political boss or special interest. 
 
 The initiative and referendum is the keystone of the arch of popular 
 government, for by means of this the people may accomplish such other 
 reforms as they desire. The initiative develops the electorate because it 
 encourages study of principles and policies of government, and affords 
 the originator of new ideas in government an opportunity to secure pop- 
 ular judgment upon his measures if 8 per cent of the voters of his state 
 deem the same worthy of submission to popular vote. The referendum 
 prevents misuse of the power temporarily centralized in the legislature. 
 
 The corrupt-practices act is necessary as a complement to the initiative 
 and referendum and the direct primary, for without the corrupt-practices 
 act these other features of popular government could be abused. As I 
 have fully explained, the publicity pamphlet provided for by the corrupt- 
 practices act affords all candidates for nomination or election equal means 
 of presenting before the voter their views upon public questions, and pro- 
 tects the honest candidate against the misuse of money in political cam- 
 paigns. Under the operation of this law popular verdicts will be based 
 upon ideas, not money ; argument, not abuse ; principles, not boss or 
 machine dictation. 
 
Io8 AMERICAN STATE GOVERNMENT 
 
 The recall, to my mind, is rather an admonitory or precautionary 
 measure, the existence of which will prevent the necessity for its use. 
 At rare intervals there may be occasion for exercise of the recall against 
 municipal or county officers, but I believe the fact of its existence will 
 prevent need for its use against the higher officials. It is, however, an 
 essential feature of a complete system of popular government. 
 
 Absolute Government by the People 
 
 Under the machine and political-boss system the confidence of sincere 
 partisans is often betrayed by recreant leaders in political contests and by 
 public servants who recognize the irresponsible machine instead of the 
 electorate as the source of power to which they are responsible. If the 
 enforcement of the Oregon laws will right these wrongs, then they were 
 conceived in wisdom and born in justice to the people, in justice to the 
 public servant, and in justice to the partisan. 
 
 Plainly stated, the aim and purpose of the laws is to destroy the irre- 
 sponsible political machine and to put all elective offices in the state in 
 direct touch with the people as the real source of authority ; in short, to 
 give direct and full force to the ballot of every individual elector in Oregon 
 and to eliminate dominance of corporate and corrupt influences in the 
 administration of public affairs. The Oregon laws mark the course that 
 must be pursued before the wrongful use of corporate power can be de- 
 throned, the people restored to power, and lasting reform secured. They 
 insure absolute government by the people. 
 
 THE INITIATIVE, THE REFERENDUM, AND THE RECALL' 
 
 By Margaret A. Schaffner 
 
 To make representative government more representative is the prob- 
 lem of to-day. The gradual process of social evolution has changed the 
 industrial basis upon which our political institutions rest, and the increased 
 complexity of our social organization has made the expression of the pop- 
 ular will more difficult. As readjustment to changing conditions is the 
 requisite for any advancing type of life, so political progress becomes 
 impossible unless new agencies are developed, to be retained or discarded 
 as experience may warrant. 
 
 Among the agencies for political expression few have made more 
 remarkable progress in the history of recent legislation than the initiative, 
 the referendum, and the recall. State-wide referendums for the adoption 
 of state constitutional, and local referendums for local affairs, are familiar 
 institutions in the United States, but it is only within recent years that 
 our states have begun to adopt the initiative and the referendum for state 
 legislation. 
 
 1 From American Political Science Review^ 1907-1908. 
 
THE LEGISLATURE 
 
 Constitutional Amendments for the Initiative and the 
 Referendum 
 
 109 
 
 Prior to 1907 a group of states, including South Dakota (1898), Utah 
 (1900), Oregon (1902), Nevada (1904), and Montana (1906), had 
 adopted constitutional provisions.' Some of these amendments were 
 imperfectly drawn, and lack of experience as to the practical workings of 
 direct legislation in certain cases led to the omission of essential provi- 
 sions for securing the results which the amendments contemplated. The 
 amendment for Utah was not made self-executing, and three successive 
 legislatures have refused to provide for its operation. The amendment 
 for Nevada provides only for the referendum, and the details of the plan 
 are so imperfectly drawn that substantial results from the law are as yet 
 " the substance of things hoped for " rather than the evidence of things 
 seen. Among the earlier amendments the South Dakota provision 
 adopted in 1898, and fortified by effective legislation in the following 
 year, has undoubtedly served as the best model for subsequent attempts 
 to secure direct legislation in this country. This amendment is quite 
 closely modeled after the plan so long in successful operation in Switzer- 
 land, and although an undue use of the emergency clause has somewhat 
 weakened the efficiency of the system in South Dakota,^ that state has 
 secured fairly satisfactory results from the operation of her law. The 
 lack of provision for bringing initiative measures before the legislature 
 and for securing competing bills has been one of the serious defects of 
 the Oregon law. Oregon voters have too often been placed at the dis- 
 advantage of choosing between the acts of groups of extremists, instead 
 of having a choice of measures resulting from the deliberative attempts 
 of men to find some common basis for legislative action. Prior to the 
 legislation of 1907 the Oregon system also suffered from the lack of 
 publicity for proposed measures. This defect is largely overcome by the 
 new law (1907, Chapter 226), which makes elaborate provision for the 
 publication and distribution of initiative bills and of arguments to be sub- 
 mitted to the voters. However, the lack of opportunity for bringing pro- 
 posed measures before the legislature, and the impossibility of securing 
 the submission of competing bills, lessens the guarantee for careful con- 
 sideration of proposed legislation and diminishes the voter's opportunity 
 for discrimination and choice. The Montana amendment of 1906 intro- 
 duced an innovation by requiring that two fifths of the whole number of 
 counties of the state must each furnish the required per cent of signers 
 for the initiative and referendum petitions. This provision will probably 
 make it more difficult to secure the required number of signatures, and 
 
 1 South Dakota Constitution (amended 1898), Article 3, Section i. Utah, Constitution 
 (amended 1900), Article 6, Sections i and 22. Oregon, Constitution (amended 1902), Article 
 4, Section i. Nevada, Constitution (amended 1904), Article 19, Sections i and 2. Montana, 
 Constitution (amended 1906), Article 5, Section i. 
 
 2 See State ex rel. Lavin, et al. vs. Bacon, et al. 1901, 14 S. D. 394. 
 
no AMERICAN STATE GOVERNMENT 
 
 the practical outcome of the plan will be awaited with interest by both 
 advocates and opponents of direct legislation. 
 
 Although the amendments secured prior to 1907 show many defects, 
 they have pointed the way for securing direct legislation in state affairs, 
 and the experience gained through the practical application of the several 
 laws is being utilized to establish more effective systems. 
 
 During the legislative sessions of 1907 the campaign for the initiative 
 and referendum was carried on with unabated fervor. Measures provid- 
 ing for some form of direct legislation were introduced in some twenty 
 states, and the results secured during the legislative year have made the 
 question one of political importance throughout the country. The legis- 
 latures of Maine, Missouri, and North Dakota provided for the submis- 
 sion of constitutional amendments. The amendments for Maine and 
 Missouri will be voted upon in 1908, while in North Dakota the pro- 
 posed amendment must also be passed by the next legislature before 
 being submitted to the people. The provisions ' for the initiative and 
 referendum in the constitution recently adopted by the people of Okla- 
 homa are of special interest. This constitution is the first in our country 
 to embody the principles of direct state legislation in the original draft, 
 all of our other constitutional provisions on this subject having been 
 secured through amendment. 
 
 Briefly outlined, the Oklahoma constitution contains the following pro- 
 visions for direct state legislation : The initiative and the referendum 
 apply both to constitutional and to statutory law. Legislative measures 
 may be proposed by 8 per cent, and amendments to the constitution 
 by 15 per cent of the legal voters. The total number of votes cast at 
 the last general election for the state office receiving the highest number 
 of votes is made the basis on which the required number of signatures 
 is to be counted. A referendum may be ordered by 5 per cent of the 
 legal voters, but laws necessary for the immediate preservation of the 
 pubhc peace, health, or safety are exempt from the referendum provi- 
 sions. Referendum petitions are to be filed with the Secretary of State not 
 more than ninety days after the final adjournment of the legislature which 
 passed the bill on which a referendum is demanded. All elections on 
 measures referred to the people are to be had at the next general elec- 
 tion held throughout the state, except when the legislature or the governor 
 shall order a special election for the express purpose of making such 
 reference. Initiative measures require a majority of the votes cast at the 
 election, while only a majority of the votes cast on a referred measure 
 are necessary to give it effect. The referendum may be demanded by 
 the people against one or more items, sections, or parts of any act of the 
 legislature. The veto power of the governor does not extend to meas- 
 ures voted on by the people. Any measure rejected by the people through 
 
 1 Oklahoma, Constitution, 1907, Article 5, Se«ions 1-8 ; Article 18, Sections 4a-5b ; and 
 Article 24, Section 3. 
 
THE LEGISLATURE III 
 
 the powers of the initiative and referendum cannot again be proposed 
 by initiative within three years thereafter by less than 25 per cent of the 
 legal voters. 
 
 The proposed amendment for North Dakota is modeled more closely 
 after the Swiss law, and has many points of advantage over the provi- 
 sions in the Oklahoma constitution, which follows the Oregon amendment 
 in a number of particulars. The North Dakota provision for bringing 
 the initiative measures before the legislature and for securing the sub- 
 mission of competing bills is an especially strong feature. Under the 
 North Dakota plan 8 per cent of the legal voters may propose a meas- 
 ure by initiative petition. Every such petition must include the full text 
 of the measure proposed, and must be filed with the Secretary of State 
 not less than thirty days before any regular legislative session, and he 
 is required to transmit the same to the legislature as soon as it con- 
 venes. Initiative measures take precedence over all measures in the 
 legislative assembly except appropriation bills, and are either to be enacted 
 or rejected without change or amendment within forty days. Any initi- 
 ative measure enacted by the legislature is subject to referendum petition, 
 or it may be referred by the legislature to the people for approval or 
 rejection. If it is rejected, or no action is taken upon it by the legislature 
 within forty days, the Secretary of State is to submit it to the people for 
 approval or rejection at the next ensuing regular general election. The 
 legislature may reject any measure proposed by initiative petition, and 
 propose a different one to accomplish the same purpose, and in any such 
 event both measures are to be submitted by the Secretary of State to the 
 people for approval or rejection at the next election. If conflicting 
 measures submitted to the people at the same election are approved by a 
 majority of the votes severally cast for and against the same, the one 
 receiving the highest number of affirmative votes becomes valid and the 
 other is. thereby rejected. 
 
 The North Dakota plan also makes provision against an undue use 
 of the emergency clause by the legislature. When it is necessary for the 
 immediate preservation of the public peace, health, or safety that a law 
 shall become effective without delay, such necessity and the facts creat- 
 ing the same must be stated in one section of the bill. If, upon aye-and- 
 no vote in each House, two thirds of all the members elected to each 
 House vote on a separate roll call in favor of the law going into instant 
 operation, it becomes operative upon approval of the governor. The refer- 
 endum may be ordered (except as to laws necessary for the immediate 
 preservation of the public peace, health, or safety) as to any measure, 
 or any parts, items, or sections of any measure, passed by the legisla- 
 ture, either by a petition signed by 5 per cent of the legal voters, or 
 by the legislature by a majority vote. The filing of referendum petition 
 against one or more items, sections, or parts of an act is not to delay the 
 remainder of that act from becoming operative. Referendum petitions 
 
112 AMERICAN STATE GOVERNMENT 
 
 against measures passed by the legislature are to be filed with the Secre- 
 tary of State not more than ninety days after the final adjournment of the 
 legislative session. The veto power of the government does not extend 
 to measures referred to the people. All elections on measures referred 
 to the people of the state are to be had at biennial regular general elec- 
 tions except as provision may be made by law for a special election or 
 elections. Any measure referred to the people is to take effect when it 
 is approved by a majority of the votes cast thereon, and is to be in force 
 from the date of the official declaration of the vote. The whole number 
 of votes cast for justices of the supreme court at the regular election last 
 preceding the filing of any petition for the initiative or for the referendum 
 is made the basis on which the number of legal voters necessary to sign 
 such petition is to be counted. The amendment is self-executing, but 
 legislation may be enacted especially to facilitate its operation. 
 
 The amendment ' submitted in Maine is similar in its most important 
 points to that of South Dakota. Provision is made against an undue use 
 of the emergency clause, and also for securing the submission of com- 
 peting bills from the legislature. A peculiarity of the Maine law is that 
 it provides for a definite number instead' of a percentage of signatures to 
 propose or refer measures ; thus it requires 1 2 ,000 signatures for initiative 
 and 10,000 for referendum petitions. This is probably due to the fact 
 that the legislature of Maine considered the population of the state a 
 fairly fixed element. The amendment applies to statutory law, but it does 
 not provide for changes in the constitution through initiative petitions. 
 
 The proposed amendment^ for Missouri provides that laws and amend- 
 ments to the constitution may be proposed by 8 per cent and the ref- 
 erendum may be invoked by 5 per cent of the legal voters. There is 
 also a provision that the number of signatures required for initiative and 
 referendum petitions must be secured in each of at least two thirds of the 
 congressional districts in the state. The amendment does not apply to 
 laws necessary for the immediate preservation of the public peace, health, 
 or safety, nor to laws making appropriations for the current expenses of 
 the state government, for the maintenance of the state institutions, and 
 for the support of the public schools. The lack of provision for bringing 
 proposed measures before the legislature and for securing the submission 
 of competing bills must be considered a weak point in the Missouri plan. 
 
 The Advisory Initiative and Advisory Referendum for 
 State Measures 
 
 The difficulty of securing constitutional amendments for the initiative 
 and the referendum have led to the development of other methods for 
 securing at least partial systems of direct state legislation. 
 
 1 Maine, Resolves, 1907, Chapter 121. 2 Missouri, Laws, 1907, pp. 452-453. 
 
THE LEGISLATURE 
 
 113 
 
 The Illinois public-opinion system (Laws, 1901, p. 198), adopted inigoi, 
 provides for an expression of opinion by electors on questions of public 
 policy at any general or special election. Under this law the submission 
 of any question for an expression of pubhc opinion may be secured on 
 a written petition signed by 25 per cent of the registered voters of any 
 incorporated town, village, city, township, county, or school district, 
 or by 10 per cent of the registered voters of the state. The petition 
 must be filed with the proper election officers, in each case, not less 
 than sixty days before the date of the election at which the question is to 
 be considered, and not more than three propositions may be submitted 
 at the same election. This law is a step toward the advisory initiative, 
 but it does not go quite so far, as the voter merely expresses an opinion 
 instead of being able to instruct his representatives by direct ballot. The 
 public-opinion system has been used in Illinois on a number of state ques- 
 tions, but as the candidates for the legislature were not pledged to obey 
 the wishes of their constituents, these expressions of public opinion have 
 not been very effective in securing the legislation desired. 
 
 A vigorous campaign for the advisory initiative and the advisory refer- 
 endum was conducted in a number of states during the past legislative 
 year. The question excited special interest in Massachusetts, where a 
 pledged majority of the legislature for the advisory initiative broke their 
 pledges by refusing to pass the proposed bill. Other states had similar 
 experiences with representatives pledged, to vote for the advisory system 
 of direct legislation, although the plan continues to receive the approval 
 of public men of all parties. In his last message to the Minnesota legisla- 
 ture Governor Johnson called attention to the merits of this system and 
 declared himself to be "firmly of the opinion that such legislation is 
 desirable." 
 
 The Texas system (Laws, 1905, Chapter 11, Section 140) provides 
 for the advisory initiative within the parties at primary elections. The 
 law applies "whenever delegates are to be selected by any political 
 party to any state or county convention, or candidates are instructed for, 
 or nominated." Under this law 10 per cent of the voters in any political 
 party may propose policies and candidates and secure a direct party 
 vote thereon. Petitions are to be filed with the chairman of the county 
 or the precinct executive committee at least five days before the tickets 
 are to be printed, and the chairman may require a sworn statement that 
 the names of the applicants are genuine. The number of signatures nec- 
 essary for a petition is to be determined by the votes cast for the party 
 nominee for governor at the preceding election. It is made the duty of 
 the chairman to submit any proposition for which a petition is filed, and 
 the delegates selected at that time are to be considered instructed for 
 whichever "proposition a majority of the votes are cast. Provision is also 
 made that all additional expenses of printing any proposition on the 
 official primary ballot is to be paid for by the parties requesting the same. 
 
114 
 
 AMERICAN STATE GOVERNMENT 
 
 Advocates of direct legislation have recently been carrying on a cam- 
 paign for the advisory initiative and advisory referendum for national 
 affairs. One hundred and ten members of the present House of Repre- 
 sentatives are pledged to vote for the establishment of the advisory ref- 
 erendum for acts of Congress or bills passed by either House, and for the 
 establishment of the advisory initiative for the following topics : civil serv- 
 ice ; immigration; interstate commerce, including parcels post; trial by 
 jury or any modification of the law of injunction ; the eight-hour day in 
 government-contract work ; the initiative and referendum ; the election of 
 United States senators by the people ; and proportional representation. 
 
 The Recall 
 
 The recall is another political institution, developed in Switzerland, which 
 is being established in this country in an increasing number of munici- 
 palities. At the present time it is in existence in a large number of cities ^ 
 in California and in Washington. It is also to be found in certain cities 
 in Idaho, Iowa, Michigan, and Texas. The validity of the recall has been 
 sustained in a number of court decisions.^ Recently the California state 
 appellate court of the second district held that the act of the city council 
 in accepting the petition for the recall of a councilman was merely minis- 
 terial, and that when a petition bears the proper number of names of 
 electors, as shown by the clerk's certificate, no discretion remains with 
 the council, but it is its duty to call an election." 
 
 A typical example of the recall for city officials is found in the new 
 law (1907, Chapter 48) of Iowa, which provides for the adoption of the 
 commission system of government by cities having a population of 25,000 
 or over. Section 18 provides that the holder of any elective office may 
 be removed at any time by the electors qualified to vote for a successor 
 
 1 Among the California cities which have secured the recall as a charter right are Los 
 Angeles (Cal. Laws, 1903, Chapter 6) ; San Diego (Cal. Laws, 1905, Chapter 11) ; San Ber- 
 nardino (Cal. Laws, 1905, Chapter 15) ; Pasadena {Cal. Laws, 1905, Chapter 20) ; Fresno 
 (Cal. Laws, 1905, Chapter 23) ; Santa Monica (Cal, Laws, 1907, Chapter 6) ; Alameda (Cal. 
 Laws, 1907, Chapter 7) ; Long Beach (Cal. Laws, 1907, Chapter 15) ; Riverside (Cal. Laws, 
 1907, Chapter 25). 
 
 In Washington, Seattle secured the recall in 1906, and in 1907 the Spokane city council 
 adopted an ordinance for the recall to be submitted to the people as a proposed amendment 
 to the charter. Under Chapter 241, Laws, 1907, provision is made for the recall in all cities 
 of the second class. This includes cities having a population between 1500 and 10,000. 
 
 For Idaho, see Lewiston charter (Laws, 1907, p. 349). 
 
 Des Moines adopted the recall under the Iowa Law (1907, Chapter 48) providing for the 
 commission system of government. 
 
 In April, 1906, Grand Rapids, Mich., adopted the recall under the provisions of her new 
 charter (Mich. Laws, 1905, No. 593), establishing the initiative and referendum for charter 
 amendments. 
 
 2 Davenport vs. City of Los Angeles, et al. 1905, 146 Cal. 508 ; Good vs. Common Coun- 
 cil of City of San Diego, 1907, Chapter 90, p. 44 (Cal. App.). 
 
 Also compare Rex vs. Richardson, 1758, i Burr, 517, in which it was held that " the power 
 to remove a corporate officer from his office for reasonable and just cause is one of the com- 
 mon-law incidents of all corporations." 
 
 8 Good vs. Common Council of the City of San Diego, 1907, Chapter 90, p. 44. 
 
THE LEGISLATURE 115 
 
 of the incumbent. The procedure for removal is as follows: A peti- 
 tion signed by electors entitled to vote for a successor to the incumbent 
 sought to be removed, equal in number to at least 2 5 per cent of the 
 entire vote for all candidates for the office of mayor cast at the last pre- 
 ceding general municipal election, demanding an election of a successor 
 of the person sought to be removed, is to be filed with the city clerk. 
 This petition is to contain a general statement of the grounds for which 
 the removal is sought. The signatures to the petition need not all be 
 appended to one paper, but each signer must add to his signature his 
 place of residence, giving the street and number. One of the signers of 
 each paper is to make oath before an officer competent to administer 
 oaths, that the statements therein made are true as he believes, and that 
 each signature to the paper appended is the genuine signature of the 
 person whose name it purports to be. Within ten days from the date of 
 filing the petition the city clerk is to examine the voters' register to ascer- 
 tain whether or not the petition is signed by the requisite number of. 
 qualified electors. If necessary, the council is to allow him extra help for 
 that purpose, and he is to attach his certificate to the petition, showing 
 the result of his examination. If by the clerk's certificate the petition is 
 shown to be insufficient, it may be amended within ten days from the date 
 of the certificate. Within ten days after such amendment the clerk is to 
 make like examination of the amended petition, and if his certificate shows 
 the same to be insuflncient, it is to be returned to the person filing the 
 same ; without prejudice, however, to the filing of a new petition to the 
 same effect. If the petition is deemed to be sufficient, the clerk is to sub- 
 mit the same to the council without delay ; and if it is found to be suffi- 
 cient, the council is to order and fix a date for holding the election, not 
 less than thirty days or more than forty days from the date of the 
 clerk's certificate to the council that a sufficient petition is filed. 
 
 The council is to provide for publication of notice and all arrange- 
 ments for holding the election, which is to be conducted and returned 
 in all respects as other city elections. The successor of any officer so 
 removed is to hold office during the unexpired term of his predecessor. 
 Any person sought to be removed may be a candidate to succeed him- 
 self, and unless he requests otherwise in writing, the clerk is required to 
 place his name on the official ballot without nomination. In any removal 
 election the candidate receiving the highest number of votes is to be 
 declared elected. Unless the incumbent receives the highest number of 
 votes at the election, he is deemed to be removed from the office upon 
 the qualification of his successor. In case the party who receives the 
 highest number of votes fails to qualify, within ten days after receiving 
 notification of election, the office is deemed vacant. 
 
 The new charter for Lewiston, Idaho (Laws, 1907, p. 349), has simi- 
 lar provisions for the recall. In addition it safeguards the city from pos- 
 sible misuse of the law by providing that no petition for removal is to 
 
Il6 AMERICAN STATE GOVERNMENT 
 
 be filed until the person has been in office at least ninety days, and that 
 no person is to be required to stand for reelection more than once dur- 
 ing the term for which he was elected. 
 
 Judicial Interpretation of Direct Legislation 
 
 The validity of legislation for the initiative and referendum has been 
 sustained in a number of recent court decisions. The former contention 
 that the use of direct legislation substituted a pure democracy for a 
 republican form of government no longer receives serious consideration. 
 
 In a case decided by the supreme court of California in 1906, the 
 court declared ^ that the provision of the federal Constitution (Article 4, 
 Section 4) declaring that the United States shall guarantee to every 
 state a republican form of government, is not violated by the initiative 
 provision of a city charter^ authorizing direct legislation as to strictly local 
 affairs by the citizens, in case the council refuses to enact the same. In 
 an earlier decision ^ the supreme court of Oregon similarly held that the 
 initiative and referendum amendment to the Oregon constitution did not 
 abolish or destroy the republican form of government, or substitute 
 another in its place. The court declared : "The representative character 
 of the government still remains. The people have simply reserved to 
 themselves a larger share of legislative power." 
 
 Madison defined a representative government to be " a government 
 which derives all its powers directly or indirectly from the great body of 
 the people, and is administered by persons holding their offices during 
 pleasure, for a given period, or during good behavior."^ 
 
 Recent court decisions seem to be returning to this inclusive idea of 
 representative government. On the basis of this broader interpretation, 
 direct legislation may prove to become one method of making represent- 
 ative government more representative. 
 
 THE EXTENDED SPHERE OF LEGISLATIVE ACTION^ 
 By Justice Simeon E. Baldwin 
 
 Contrast, if you will, social regulation by the state as it bore upon the 
 individual in our earlier days and as it bears upon him now. 
 
 The manufacturer finds his field of activity contracting. In one state 
 he cannot distill or brew ; in another he cannot make a cigarette.' 
 
 1 In re Pfahler, 1906, Chapter 88, p. 270. 
 
 2 Charter of Los Angeles, Cal. Laws, 1903, Chapter 6. 
 
 8 Kadderly vs. Portland, 1903, 44 Or. 118. 4 The Federalist, p. 302. 
 
 » From an address before the Georgia Bar Association, 1909. Reproduced by permission. 
 6 Iowa Code, sect. 5006; Act of February 28, 1905, of Indiana: State vs. Lowry, 166 
 Ind. 372; 77 Northeastern, 728. 
 
THE LEGISLATURE 1 17 
 
 Formerly, if an employer preferred to have none in his service who 
 did not share his political opinions, he could discharge such as voted 
 against the candidates of his choice at public elections. Now the state 
 may be found punishing him for so doing by fine or imprisonment. 
 
 Once every official was free to take an active part in political cam- 
 paigns. Now it would be a cause of removal in the case of very many. 
 
 Once every man's house was his castle, subject to the right of the 
 state to take it from him for the strict purposes of government, on mak- 
 ing him just compensation. Now the state may thus seize it for a pleas- 
 ure ground, a band stand, a memorial site, a hospital, a college, a free 
 library.-' 
 
 Once his farm was his own, to'plant and till as he might please. Now 
 some public official may invade his orch'ird, uproot his trees, and leave 
 him without remedy, if the state deems it necessary or expedient for the 
 public welfare.'' 
 
 The owner of a wood lot was formerly free to cut it when he pleased 
 and as he pleased. 
 
 He may now be ordered by the legislature to refrain from cutting the 
 whole or part of the natural growth for a period of years, and left to 
 find his compensation only in the fact that this is deemed to be for the 
 greatest good of the greatest number.* 
 
 If one owns land from which comes oil or natural gas, he must, on 
 the one hand, guard against waste, and on the other, refrain from increas- 
 ing the natural flow to the prejudice of his neighbors.* Similar statutes 
 have been upheld in reference to the use of water from artesian wells. ° 
 
 The riparian proprietor on streams not navigable has long been com- 
 pelled in many states to submit to the flooding of his land by others, 
 to create water power for them to put to milling or manufacturing 
 •purposes. 
 
 He now finds his fishing rights curtailed or perhaps denied for years, 
 in order to secure replenishing the stream with more fish for others 
 to catch and eat.* 
 
 A grazier or butcher could formerly dress his meat products for such 
 purposes as he saw fit. Now, if he should use his tallow to make a cheap 
 substitute for butter, he might find himself under arrest as a criminal, 
 and liable to a sentence to imprisonment.' 
 
 Once a man could educate his children as he pleased, or not at all. 
 Now the state may compel him to educate them in a certain way. 
 
 In obedience to its commands he sends them to a public school, and 
 
 1 United States vs. Gettysburg Electric Railway Co., i6o U. S. 668. 
 
 2 State vs. Main, 69 Conn. 23, 36, 37 ; Atlantic, 80 ; 36 L. R. A. 673 ; 61 Am. St. 30. 
 8 Opinion of the Justices, — Maine, — ; 6g Atlantic, 626. 
 
 * Ohio Oil Co. vs. Indiana, 177 U. S. 190; Manufacturers Gas Co. vs. Indiana Gas Co, 
 155 Ind. 467 ; 50 L. R. A. 768. 
 
 5 Ex parte Elam, 152 Cal. — ; 91 Pac. 811. 
 
 6 Freund on the PoUce Power, sect. 419. ^ Powell vs. Pennsylvania, 127 U. S. 678. 
 
Il8-- AMERICAN STATE GOVERNMENT 
 
 the state may refuse to receive them unless they are submitted to vac- 
 cination, although he may regard it as both unnecessary and dangerous.^ 
 
 He may think that he provides them at home with food sufficient for 
 their wants, but if a school committee think otherwise, he may be forced 
 to pay for other meals furnished by them and charged to him.'' 
 
 Formerly a private school could be open to all whom the master 
 thought fit to receive. Now it may be made a criminal offense to admit 
 children of different colors.' 
 
 Once, if a man contemplated marriage, no considerations of personal 
 health need debar him from a free choice. Now the state may forbid 
 him, under heavy penalties, from marrying an epileptic or one of 
 feeble mind.* 
 
 Here one may remark a reversion to the ways of thought in ancient 
 society. There the individual was merged in the family. His good was 
 not thought of, but the good of the head of his house and of all the 
 members of that house. 
 
 Not dissimilar in origin is the public school. 
 
 The family formerly was its own educator. Then came the church, 
 acting through parochial schools and monasteries. Last appears the 
 state, declaring that the liberty of the father may be justly restrained in 
 the interest of the child, and also in the interest of the public. 
 
 The man should be accorded more freedom of will than the child, and 
 yet that freedom, as respects the child, may fairly be curtailed in the 
 child's interest. 
 
 He may be justly compelled to send his children to school. He may 
 be justly compelled not to send them to the factory. 
 
 Compulsory education is the sole salvation of modern government. 
 " Educate your masters " was the only cry that could wake slow-moving 
 England to her duty. 
 
 Why is the German a leader in the domain of knowledge, of industry, 
 of military power ? Because, for one thing, Prussia led Europe in forc- 
 ing her people to send their children to school. In the German army 
 there was, in 1904, but one man in every twenty-five hundred who could 
 not read and write. In the French army, in 1906 and again in 1907, there 
 were eighty-three in every twenty-five hundred who could not. 
 
 The distribution of one's estate by will, with few limitations, was, up 
 to recent times, left mainly to his discretion, provided he were not grossly 
 unfair to his next of kin ; and their title to succeed, if there were no will, 
 was commonly regarded as in the nature of a vested right. Now the 
 
 1 Morris vs. Columbus, 102 Ga. 792 ; 42 L. R. A. 175. As by Kentucky Act of March 
 22, 1904. 
 
 2 An act of Parliament to this effect was passed in England in 1906, Chapter 57, and the 
 courts support it. 
 
 8 BereaCollegCOT. Commonwealth, 2pKy. Law, 284; 94 Southwestern, 623; S.C.211 tl.S. 
 4 2 Howard on Matrimonial Institutions, 400, 477, 480 ; Gould vs. Gould, 78 Conn. 242 ; 
 61 Atlantic, 604; 2 L. R. A. (N.S.) 531. 
 
THE LEGISLATURE 1 19 
 
 state demands a share for itself, and one that is to be increased pro- 
 gressively with the magnitude of the inheritance. 
 
 The artificial person has lost more even than the natural person. 
 Its field of action is continually being circumscribed ; its manner of 
 action continually subjected to new limitations. 
 
 It may have large interests that would be injuriously affected by legis- 
 lation favored by a pohtical party on a certain subject, say the tariff. 
 Formerly it could cast its influence against such legislation, contributing 
 to the expenses of the opposing party. Now such action would consti- 
 tute a crime. 
 
 But it is not so with all artificial persons. 
 
 Once, if a malicious prosecution were brought against a man, whoever 
 brought it could be held answerable in court for the resulting damages. 
 A corporation had no more immunity from such an action than the hum- 
 blest individual. The courts looked through its intangible form to the 
 real men who composed it and held it liable for what they did.^ 
 
 But by the Trades Dispute Act, passed by the parliament of England in 
 1906, no action for a malicious prosecution nor any other act of private 
 wrong can be maintained against any trade-union whatever. 
 
 In a recent judgment,^ dismissing such a case, the judge (Mr. Justice 
 Darling) observed that the object of the act was to alter the law on that 
 subject as laid down in' the Taff Vale case," '" and to remove trade- 
 unions from the humiliating position of being on a level with other lawful 
 associations of his Majesty's subjects ; adding that trade-unions are now 
 super legem, as the medieval emperor was super grammaticam." 
 
 The individual laborer has also been often treated by our legislators 
 like a ward incapable of protecting his own interests. The number of 
 hours for which he can agree to work in a day have been cut down, and 
 his liberty of contract in many other directions circumscribed.* 
 
 On the other hand, the power of the state has often been exerted to 
 depress that of organized labor. 
 
 It has regulated and, under some circumstances, forbidden strikes. It 
 has forbidden boycotts. It has forbidden (though it knew it not) com- 
 binations of labor in different states in restraint of commerce between 
 those states. 
 
 But there is no time to multiply references to a kind of legislation 
 with which every man before me is familiar, and in shaping which many 
 of whom have had a part. 
 
 It is the age of collectivism. The functions of the state multiply. Its 
 circle of activities expands, and the circle of activities around each indi- 
 vidual is correspondingly reduced. 
 
 1 Goodspeed vs. East Haddam Bank, 22 Conn. 530. 
 
 2 Barry vs. Amalgamated Society of Railway Servants, Law Journal, March 2, 1908, p. 174. 
 8 L. R. Appeal Cases of 1901, 426, Chapter 47. . . ^ „ „ „ ,, ^, 
 
 4 See N. Y. Labor Law of 1906 ; People vs. Williams Engmeenng Co.,— N. Y.— ; 85 Nortti- 
 eastem, 1070. 
 
I20 AMERICAN STATE GOVERNMENT 
 
 The hand of government has always been heavier in countries without 
 a written constitution than in those which possess one. 
 
 We have not quite got back to the practice of Egypt in the times of 
 her pyramid builders. Then the hours of washing, of walking, of all the 
 amusements and occupations of everybody's day, of the quality and even 
 the quantity of his food, were precisely regulated by the law of the land. 
 But we have embarked upon a stream which flows that way. We are 
 part of a great world fleet sailing in the same direction, the ships of 
 state of Australia and even of England leading in the advance. 
 
 LEGISLATIVE APPORTIONMENT ^ 
 
 By Elihu Root 
 
 The next question is as to the particular scheme of apportionment that 
 is to be presented to this convention. Is that fair ? At the basis of that, 
 sir, hes the question which must be determined upon before we can agree 
 upon any apportionment. The question has been raised somewhat in 
 the attacks upon this bill, but not debated fully or broadly, whether in 
 dividing the state into Senate and assembly districts, we are to have 
 regard to county lines. Having determined that we are to have an 
 apportionment, you must next determine the question whether you will 
 regard county lines or will throw them aside. It does not seem to me 
 that it is necessary or profitable to debate that very long. I do not con- 
 sider that the gentlemen who have attacked this bill seriously propose 
 that county lines should be thrown away. It certainly would require long 
 and serious consideration before any convention would undertake to 
 abolish so time-honored an institution, and one with which all the habits, 
 associations, and traditions of the people are so closely associated. I 
 should hesitate very long, sir, before I should vote to destroy the bound- 
 aries or existence of my old county of Oneida. I believe that every 
 gentleman upon the floor of this convention, whether he lives in the 
 great cities or still remains under the rooftree of his fathers in the rural 
 counties, — that any gentleman who has ever passed his childhood in one 
 of the rural counties of the state would be exceedingly unwilling to de- 
 stroy its existence and blot it out. The habits of our people, their 
 traditions, their best and noblest sentiments, are embodied in the pride 
 which they feel in the counties of their birth and of their life. These 
 counties originally meant something. They still mean something. De- 
 stroy them, and, in order that there shall be political divisions at all, in 
 order that the state may be districted for senators and assemblymen, 
 you create new lines, new divisions, in which people are to create new 
 friendships, which any future convention may destroy. You destroy 
 an institution of immense and immeasurable value and create another 
 
 1 From a speech in the New York Constitutional Convention, 1894. 
 
THE LEGISLATURE I2I 
 
 which, in the future, can be destroyed by some future convention. No, 
 sir, I am satisfied, and I believe all the people on this side of the con- 
 vention are satisfied that the people of the state do not wish to destroy 
 their county lines in the distribution of senators and assemblymen. 
 
 Well, sir, if you wish to preserve county lines, how are you to distrib- 
 ute senators and assemblymen among these counties ? And the next 
 question you meet is. What shall be the number of senators and as- 
 semblymen ? Shall we keep the thirty-two and one hundred and twenty- 
 eight that we now have, or shall we go to another number ? Now, as I 
 understand the proportion which underlies the establishment of the num- 
 bers of fifty and one hundred and fifty in place of the thirty-two and 
 one hundred and twenty-eight, it is in its main feature this : the conven- 
 tion of 1846 divided the state into Senate districts with express and 
 special reference to the convenience of the people, the relation of the 
 counties in the district, the ability of the representative in the Senate to 
 become familiar and remain familiar with the varied interests and wants 
 of the people and with the people themselves. If a district is too large, 
 if it be of a shoe-string character, stretching over a long, extensive 
 territory, if it be divided by natural obstacles, if it be like the present 
 apportionment where one district comes down into the middle of another, 
 so that you have to go around Robin Hood's barn to get into it, the 
 representative that comes from the divided district will be familiar with 
 the wants and needs of the people in only his part of the district. The 
 constitution of 1846 divided the state into Senate districts and fixed the 
 number of the Senate at thirty-two, so that each senator could readily 
 represent his district. Since that time increase in population has occurred 
 in the great cities, and the effect of reapportionment, with the number 
 remaining at thirty-two and giving new senators to the great cities, is to 
 take away senators from the country, so that the country districts have 
 been continually enlarging until they have reached a point where a 
 senator cannot properly represent the whole people of his district. The 
 main object of fixing fifty as the number of senators is to bring the 
 senatorial districts, widely extending as they are in the country, back 
 substantially where they were with thirty-two under the apportionment 
 of 1846. So that the evil arising from the continual enlargement of the 
 districts, because of the continual sending of new senators to the cities, 
 will be removed by the increase of number. 
 
 Now, Mr. Chairman, when we are considering what number a legis- 
 lative body should contain, what is the proper process of reaching a fair 
 conclusion } Is it to start, as some of my friends, under the influence of 
 their prepossession and prejudgment, have done, looking first at what the 
 political effects will be ? Is that the proper way to consider matters in 
 this body, — to see how it is going to affect this or that party, this or that 
 candidate ? I think not, sir. There are two questions which should, by a 
 fair and honest consideration, be determined, and one is that to which I 
 
122 AMERICAN STATE GOVERNMENT 
 
 have just referred, — the question as to what extent of district can properly 
 be represented by a single representative, — and the other is. What is an 
 effective working size for the body which is to be constituted. 
 
 Now, I am free to say, for the reason that I have just mentioned as 
 to the representation of individual districts, and upon the teaching of 
 common experience, the number of fifty which is fixed in this bill as the 
 number of the Senate, meets both of these requirements. It puts the 
 senatorial districts each in such a position that they can be well repre- 
 sented each one by a senator, and it puts the Senate at such a point that 
 it can properly perform the peculiar functions imposed upon it by our 
 system of government, — functions calling for great consideration and 
 requiring in their deliberation a small body of men. 
 
 In the assembly the question rises to some extent ; if you regard 
 counties and are not to destroy them, each county must have its repre- 
 sentative, and with one hundred and twenty-eight as the number of the 
 assembly, the giving of a representative to each of the small counties 
 produced a very great advantage on the part of those counties and a 
 comparative disadvantage on the part of the large counties and of the 
 great cities. The increase of number from one hundred and twenty-eight 
 to one hundred and fifty is a concession. Now, Mr. Chairman, I don't 
 want any misunderstanding about this, and I put it to the gentlemen 
 who have attacked this bill whether it is not true that an increase of the 
 number of the assembly from one hundred and twenty-eight to one 
 hundred and fifty is a concession by the small counties to the large coun- 
 ties in the city; whether Putnam County, with its thirteen thousand 
 population, is not getting less advantage over the rest of the state with 
 one out of one hundred and fifty, than she now has with one out of one 
 hundred and twenty-eight ; whether every one of the small counties that 
 has a single member is not surrendering an advantage which each now 
 has with one hundred and twenty-eight? That surrender on the part of the 
 small counties, which are, perhaps, securing advantage by the redistrict- 
 ing of the state for Senate districts, securing closer contact with their 
 member of the Senate, — that surrender is pushed just so far in order to 
 maintain a representative body which is small enough to do effective 
 work in the legislature of the state. 
 
 Now, Mr. Chairman, somebody, in order to successfully dispute this 
 bill, is bound to give us some reasons why these numbers ought not 
 to be adopted, — some reason why different numbers will make a better 
 working Senate and assembly and secure better representation in the 
 Senate and assembly districts. You cannot overthrow the bill by merely 
 crying politics. 
 
 Now, as to the actual distribution of counties, the actual formation of 
 the Senate and assembly districts outside of the city of New York, I 
 will say nothing because I am not familiar with the subject. Those who 
 have spoken and others who are to speak, I presume, are much more 
 
THE LEGISLATURE 1 23 
 
 competent than I am, or ever hope to be, on that subject. As to the 
 division of the senatorial districts in the city of New Yorlc, it was made 
 upon what I suppose to be the true, indisputable, and fundamental prin- 
 ciples of apportionment, and that is, following the lines of homogeneous 
 population and the lines of easy communication. The city of New York, 
 as every one in this convention knows, is one in which communication is 
 up and down, north and south. The people do their business and travel 
 along the avenues which run north and south — Avenues A and B, First 
 Avenue, Second Avenue, Third Avenue, Fourth Avenue, Fifth Avenue, 
 Sixth Avenue, Seventh and Eighth Avenues. Communication across from 
 river to river is slight. People will live a whole lifetime upon Manhattan 
 Island without ever getting across from river to river. Lines of business 
 run north and south, the people who know each other, the people who 
 are engaged in business with each other, the people whose public senti- 
 ments are the same, they are arranged up and down the island ; and we 
 have endeavored, and I think successfully, to lay out the senatorial dis- 
 tricts in such a way that the people from any part will connect with any 
 other part most readily ; and that each district will contain, to the greatest 
 possible extent, the most perfectly homogeneous people, so that these 
 twelve districts will come as near being real districts as possible, just as 
 twelve different counties are real districts. Now, gentlemen, say that the 
 result of this is, that there are two Republican districts in the city. That 
 results, Mr. Chairman, from the fact that where more than one third of the 
 voters are Republican, you cannot lay out the land in twelve senatorial dis- 
 tricts without having at least two that are Republican, unless you violate 
 every proper rule of apportionment. If you follow right rules in a city 
 where one third of the voters are Republicans, at least one sixth of the as- 
 semblymen will be Republican, and nothing but deprivation of right will 
 prevent it. That intentional deprivation of right the people of New York 
 City now suffer under, and one reason why we ought now and here to 
 adopt a new apportionment as a part of this constitution is to overthrow 
 a right and set up a wrong for these people. [Applause.] Talk about 
 lack of representation ! Mr. Chairman, there are a hundred thousand 
 voters with their families in that city ; more than one hundred thousand 
 men who voted for Harrison in the last election, with their families, call 
 them five to one ; there are a half million of people without one repre- 
 sentative in the Senate of this state, and with the districts of that island 
 so cut up by intention that they can never have a single representative 
 in the Senate of the state ; and yet the gentleman says to us, " It is 
 partisan for you to make any apportionment at all." 
 
 Mr. Chairman, I have something to say also about some of the rules 
 that are laid down in this amendment. The objections which are made 
 seem to be chiefly to the rule relating to ratio. That is the rule which 
 imposes upon the large cities a somewhat larger ratio than that which is 
 -applied to the large Congress, and the rule that provides that no large 
 
124 
 
 AMERICAN STATE GOVERNMENT 
 
 city, no county having a specified number of senators, shall have an 
 additional senator, except upon a full ratio. I am trying to state fairly the 
 two things which I find the gentlemen have attacked in that respect. 
 Now these two provisions are attacked upon the theory that population, 
 and population only, is the basis upon which an apportionment shall be 
 made, and that any provision which departs to any extent from the rule 
 of population is wrong in principle and some sinister motive could be 
 found for it. I take issue with that, sir. I assert that population is not 
 the only rule ; that the object to be attained is true representation. There 
 is to be combined with population as the basis of representation also the 
 question of territory and the question of separate and individual interest. 
 I say, in the second place, that the comparison is not between a single 
 ratio of population in a small county and a single ratio of population in 
 a large city ; the question is not whether 38,606 men in the country 
 should have greater effect given to their votes than 38,606 men in the 
 city. The question is whether thirty separate counties of 38,606 each, 
 scattered over the country, are to be compared upon the basis of absolute 
 numerical equality with one center of thirty times 38,606 in one city, 
 with all the multiplication of power that comes from representing a 
 single interest, standing together on all measures against a scattered and 
 disunited representation from thirty widely separated single centers of 
 38,606. Thirty men from one place owing their allegiance to political 
 organization, representing one community voting together, acting to- 
 gether solidly ; why ? They are worth double the scattered elements of 
 power coming from hundreds of mUes apart. 
 
 Mr. Chairman, when we adjourned this afternoon I was discussing 
 the question of ratios and of the two provisions which discriminated in 
 favor of the country and against the cities, by fixing a smaller ratio for 
 the country counties than is fixed for the larger counties and the cities, 
 and providing that no city having more than a specified number of sena- 
 tors shall have another senator, except upon a full ratio. I had stated 
 that there were two reasons for not applying a strict rule of representa- 
 tion according to absolute population to the whole state, and that those 
 two reasons were, first, that territorial extension, variety and separation 
 of interests, upon the one hand, required a representation which was not 
 necessary for the other, when there was a condensation in the great cen- 
 ters of population ; and, in the second place, that the great increase of 
 effective force which comes from the election of a large number of repre- 
 sentatives of one city, — representatives who represent not, in fact, their 
 separate districts, but the whole city, representatives who are responsi- 
 ble to the same public opinion, and, in fact, represent but one combined 
 interest of the citizens of that city, — the great accumulation of power 
 created by that combination so far outweighed the effective power of 
 a great number of scattered representatives of widely divided centers 
 
THE LEGISLATURE 
 
 125 
 
 of population, small centers of population, that a difference in the 
 ratio, such as is preferred in this amendment, goes but a small ways 
 toward equalization. 
 
 Now, Mr. Chairman, let me say a word upon this last proposition. In 
 the city of New York there are thirty assembly districts. Under this 
 proposed measure there are to be thirty-five. I would venture to say that 
 a majority of the people of the city of New York cannot tell the bound- 
 aries of I o per cent of the assembly districts of that city. I wiU venture to 
 say more, — that not more than one third of the people of the city can tell 
 what assembly district they live in. I wiU undertake to say that not 10 
 per cent of the people of the city of New York can tell what election dis- 
 trict they live in. The boundary lines are so far statutory and matters 
 of words ; the distinctions between the artificial divisions of assembly 
 districts and of senatorial districts, and aldermanic districts and civil-jus- 
 tice districts, and election districts, are so shadowy, in fact they are so 
 largely a matter of statute and so little a matter resting in real distinction 
 of population, that people do not know anything about them until they 
 come to study their tickets just before they go to the polls, or look into 
 the newspaper to see where they are to vote. A resident in one of our 
 great cities — it is so in New York and it is getting to be so in Brooklyn 
 and it will soon be so in Buffalo — has not for his neighbor the man who 
 lives next door ; the chances are he does not know who he is or what 
 his name is, and would not recognize him if he met him in the street. 
 His neighbor is somebody who lives four or five miles off, whom he 
 meets at church, at a club, at a directors' meeting, or perhaps in a labor 
 organization, or in cfne of the various associations which make up the 
 busy and complicated life of a great city. Locality counts for nothing in a 
 great city. Every man who is sent to the legislature from a great city 
 represents not this artificial territory, this territory artificially defined ; 
 that is but a means of determining what voters shall pass upon the ques- 
 tion of whether he or another man goes to the legislature. But he repre- 
 sents the whole city; every representative of every part of the city 
 represents the whole city, and no special part of it. The interests of all 
 the thirty members from New York will be one interest. There is not 
 interest of the fifteenth district as distinguished from the sixteenth, or 
 the seventeenth, or the eighteenth, or the nineteenth as distinguished 
 from the twentieth, or the twenty-first, or twenty-second. Each is for all ; 
 all are for one. Each is responsible to one political organization of the 
 city. Each is charged with the duty of representing, and discharges the 
 duty of representing, or, too often, misrepresenting, the whole interests 
 of the people of the city. Now, sir, we are to compare this compact body 
 of men, each one of them representing precisely what the others repre- 
 sent, thirty men as it is now, thirty-five as it is proposed to be, extending 
 in one solid phalanx, to represent one interest, — we are to compare that 
 with the representation of Putnam County, St. Lawrence County, Oneida 
 
126 AMERICAN STATE GOVERNMENT 
 
 County, Cattaraugus County, Monroe County, — gentlemen representing 
 entirely different interests and responsible to entirely different constitu- 
 encies, with no cohesion, no common bond, except as they may happen 
 to have spoken upon a subject which comes before the representative 
 body. And I submit that upon sound principles the comparison between 
 these separate bodies and their representatives and this one great con- 
 solidated body is not, and cannot be, a mere numerical comparison. 
 Carry this to its logical conclusions, if you please. Take the view taken 
 by our friends on the other side. See the city of New York growing 
 year by year, adding Brooklyn perhaps to a Greater New York, and, 
 within the allotted space of life of the majority of the members of this 
 convention, holding within its limits a majority of the people of this state ; 
 she sends to your legislature a majority of all its members, responsible 
 to one political organization in that one municipality, — responsible, if the 
 present system of political domination which now obtains in that city is 
 continued, to one man for their votes and their actions, — and tell me 
 whether, for the government of this state, it is right and just that the 
 comparison between all the other representations of this state, all the 
 other counties, and all the other cities, extending over half a thousand 
 miles from east to west and from the ocean to the St. Lawrence River, 
 with their varied interests, with their widely scattered centers of popula- 
 tion, — whether the comparison between the representation and this one 
 controlling power should be solely on the basis of population. If that 
 principle be pushed to its logical conclusion, every county, every city, 
 every town, every village, every man in the state of New York becomes 
 subject to the absolute domination and control of the delegation from 
 New York. I for one, sir, New Yorker as I am, beholden for almost 
 thirty years of kind treatment to that city, love too dearly the state of my 
 birth and my life to contemplate such a result with equanimity. And I 
 insist, sir, upon the principle which has been adopted in a large number 
 of the states of this Union, in almost every state which has had to deal 
 with the problem of a great city within its borders, and the relations of 
 that city to an agricultural community, that the problem which they have 
 had to deal with shall be dealt with by us upon the same principle ; that 
 the small and widely scattered communities, with their feeble power 
 comparatively, because of their division, shall, by the distribution of rep- 
 resentation, be put upon an equal footing, so far as may be, with the 
 concentrated power of the cities. Otherwise we never can have a truly 
 representative and a truly republican government. 
 
THE LEGISLATURE 127 
 
 LEGISLATIVE APPORTIONMENT IN CONNECTICUT 1 
 By Governor McLean 
 
 The constitution of the state of Connecticut, like those of her sister 
 republics, always has been, is now, and always will be complained against 
 by good and patriotic men. 
 
 The state of Connecticut is, however, by the testimony of all her loyal 
 sons, as good a state to live in as there is in the Union. 
 
 Many of her blessings are due to the wealth and variety of her natural 
 endowments, but many more are due to the wisdom of the fathers who laid 
 the foundations of her government in the adamant of morality and justice. 
 
 For more than two centuries the fundamental law of Connecticut has 
 been the admiration and inspiration of the representative republics of the 
 world. And if the citizens of Connecticut have preferred stability to 
 uncertain change, their choice has brought them great prosperity and the 
 reputation of being a people of steady habits, which, with God's help, 
 may they long retain! 
 
 Nothing is so destructive of credit and the general well-being of society 
 as constant modification of fundamental law, and injustices in a constitu- 
 tion offending theory only may well be preferred to experimental attempts 
 at impossible ideals. 
 
 The general plan of our constitution in its protection against the wrong 
 kind of liberty is, in the judgment of many, better than that possessed 
 by any other state in the Union. I do not say that it is perfect. Perfec- 
 tion is hard to find in temples made with hands. 
 
 We are told that a perfect form of government is possible, and that it 
 will be the one that runs in exact harmony with the immutable laws of 
 nature. This may be true, and when discovered, still be unsatisfactory, 
 for some of the best of us will, I fear, always find occasion to criticize 
 natural regulations. 
 
 On the other hand, we need never fear to remedy a manifest wrong 
 in fundamental law, if that wrong clearly affects a majority of the people. 
 And the minority, however dearly it may cherish the law that causes' 
 that wrong, should remember that the very life of a democracy depends 
 upon the patriotic obedience of all to the will of the majority. We must 
 expect to amend our constitution for years, if not for centuries, to come. 
 We should be willing and even glad to do so, when natural causes that 
 could not be foreseen have, in the course of time, rendered an amend- 
 ment a plain duty. 
 
 In 1639, when the state had but three towns, each town was given 
 four deputies to the General Court, and it was further provided in the 
 first of written constitutions that whatever other towns should thereafter 
 be added to Connecticut, " they shall send so many deputies as the court 
 
 1 Extract from Governor McLean's message of 1901. 
 
128 AMERICAN STATE GOVERNMENT 
 
 should judge meet, a reasonable proportion to the number of freemen 
 that are in the said towns being." 
 
 It was then the definite expressed purpose of the founders of the state 
 to give to each town such number of deputies as would be in reasonable 
 proportion to the number of freemen therein, and to every town some 
 representation. It cannot be denied that this apportionment was con- 
 servative, wise, and just. 
 
 At present, owing to a very large increase in the population of some 
 towns, and very little, if any, in others, it is theoretically possible for less 
 than 20 per cent of the people of Connecticut to elect a clear major- 
 ity of both branches of the general assembly, and so secure absolute 
 control of the entire state government; and, as an adjunct to this unantici- 
 pated departure from the original intent of the founders, some towns 
 having a population of less than five hundred retain two representatives, 
 while others having ten times that number are entitled to but one. 
 
 Some of you may be tempted to point to the proposed increase in the 
 Senate as fully satisfying the spirit of the constitution. I cannot see 
 wherein this amendment can be soberly considered as a remedy for the 
 real and growing injustice in the apportionment of the representation in 
 the House. The Senate in name, purpose, and history is the smaller and 
 conservative body, and it should in my judgment remain such. 
 
 There are at present eighty-seven towns having two representatives 
 and eighty-one towns having but one. If each town is given one repre- 
 sentative, and there is added to every town exceeding a certain popula- 
 tion one representative for each ten thousand or more of such excess, 
 you will fairly and substantially remove the present injustice and still 
 retain the federal or territorial element in the present constitution. 
 
 It is a compromise, but an honorable and logical compromise, in which 
 the people gain much and the towns save much in retaining a privilege 
 which to them is an education and a dignity as dear and sacred as it is 
 conservative and beneficial to the state. 
 
 A reapportionment that would entirely deprive the smaller towns of 
 their individual representation would be a radical and complete departure 
 from the plan of the founders, and I fear that any attempt to secure such 
 a reapportionment would be as unsuccessful as it would be unwise. Many 
 of us still believe in the little town republics. And whether they created 
 the state or the state created them, they have lived together in harmony 
 and stood shoulder to shoulder in defense of each other and the state too 
 long to become antagonists now. 
 
 If, upon careful and unprejudiced deliberation, you become convinced, 
 as I am convinced, that a fair reapportionment of the representation in 
 the coordinate branches of the general assembly is due to, and greatly 
 desired by, a large majority of the people of Connecticut, the manner in 
 which the constitution shall be altered to allow such reapportionment will 
 be of next importance. 
 
THE LEGISLATURE 1 29 
 
 You will hear much about the necessity of a constitutional convention 
 from many zealous and farseeing men, but I caution you that in adopt- 
 ing this plan you would open the door to guest and stranger alike and 
 throw the key away. I can see no argument in favor of this irregular, 
 expensive, and wide-open policy but that of speed. It is cutting across 
 lots in the dark with many ditches to avoid, and some of us were wisely 
 taught by our fathers that " the longest way around is the shortest way 
 home." There is ability enough and to spare in this assembly to com- 
 pile, if thought best, the nineteen pages of our present constitution, save 
 the living provisions, and add thereto such'changes as you may approve. 
 
 The constitution so compiled and amended would be printed with the 
 laws enacted by you and freely circulated and discussed during the next 
 two years, and when finally sulsmitted to the people it could be voted for 
 intelligently and without fear of hidden flaw or deception. 
 
 It should also be remembered that most of the vital provisions in our 
 present constitution have been judicially construed by our supreme court, 
 and any change in the text, however slight, might entail much hardship, 
 uncertainty, and expensive litigation. 
 
 In view of the large number of self -professed experts in constitutional 
 surgery, who, anticipating the pleasures of unrestricted vivisection, have 
 already provided themselves with knife and antiseptic, you will, in my 
 judgment, serve and please the people best by permitting the use of such 
 remedies only as may be necessary to preserve the vigor and spirit of the 
 trusted guardian of the people's rights. 
 
 The proposal to require the election of county commissioners by the 
 people, and all similar tilting for party advantage, have no place in this 
 discussion, and should in my opinion occupy but litde of your time. The 
 constitution is a limitation and should never be made a code. 
 
 If any change is needed in the manner of choosing county commis- 
 sioners or the judges of our minor courts, it does not, I think, lie in the 
 direction of the town caucus. 
 
 The amendment now pending which provides for plurality election of 
 state officers, although clearly undemocratic in theory, is abundantly 
 approved by precedent and experience, and until some plan is devised 
 whereby a majority can express its choice at one poll it will be more 
 satisfactory than the present ultraconservative method. 
 
 THE LAW AND INDUSTRIAL INEQUALITY ^ 
 
 By George W. Alger 
 
 Has the state ever a clear duty to lend a hand to aid those who are 
 obviously at a disadvantage in struggling with the forces of modem in- 
 dustry ? Under our fundamental law and the principles declared in our 
 1 A paper presented before the New York State Bar Association, January 16, 1967, 
 
I30 
 
 AMERICAN STATE GOVERNMENT 
 
 Constitution, can our legislatures and courts recognize not only the facts 
 of existing industrial inequality between men, but a duty to protect by 
 law, framed to meet new conditions, the weaker against the stronger ? 
 \\'hen individual action alone cannot secure equalization of the conditions 
 of competition, and where that failure is resulting in misery and distress, 
 may the law intervene to protect the weak from the tyranny of the 
 strong ? Are the handicaps of life to be questions solely for the indi- 
 vidual, or are they at times and under special circumstances to be ques- 
 tions for the state itself to grapple with, and if not to solve, at least to 
 create conditions under which ihe individual may solve them for himself ? 
 
 These are difficult questions which our courts with increasing fre- 
 quency are being asked to answer when required to determine the 
 validity of laws which our legislatures and Congress are yearly enacting, 
 — laws regulating or fixing the conditions under which industry shall be 
 carried on ; limiting the hours of labor of women and children, and men 
 as well, in overcompetitive employments ; laws aimed to reduce unneces- 
 sary dangers to life and limb in dangerous trades, or dangers to health 
 in unhealthful occupations ; laws which, by increasing the employer's 
 responsibility, seek to urge him to new diligence in the protection of his 
 employees ; laws which, in a multitude of ways, aim to control or regu- 
 late as special necessity may dictate the processes of industry, to remove 
 conditions which press too heavily upon the overburdened, and which, 
 uncontrolled, sap vitality and destroy or shorten life. 
 
 The general problem which these questions raise, and which involves 
 both the power and the duty of the state, would seem to have been 
 answered in all the great civilized countries of the world but ours in the 
 affirmative. Many of these questions were settled in European countries 
 long ago. Economic conditions which gave them urgency earlier in the 
 Old World have more recently come to us, and the form of the problem 
 which these new conditions have raised as it is presented to our country 
 is, How far may the legislatures go in enacting laws aimed at condi- 
 tions of industrial inequality under the limitations of the law of the land ? 
 
 Our fundamental law has for one of its principles that of equality, — 
 that before the law men are equal in rights, privileges, and legal capacities. 
 It has for another principle individual freedom, — the right of the individual, 
 uncontrolled by any arbitrary trammels of the state, to pursue any proper 
 calling and to contract with others in relation to that calling. The liberty 
 to pursue such calling is a property right, is a part of the liberty and 
 property which shall not be taken away without due process of law. 
 
 History would seem to show that for the first seventy-five years at 
 least of our national life individual liberty was the dominant note. We 
 were opening a new world. In it there were apparently innumerable 
 opportunities for individual enterprise and initiative. Our national life 
 began, moreover, with greater industrial equaUty than had before existed 
 in any other country. The Industrial Revolution had not yet begun when 
 
THE LEGISLATURE 
 
 131 
 
 American independence was declared. We were then an agricultural 
 people, for England, hoping to keep us a market for her manufactures, 
 had forbidden the export of machinery to her colonies. The spinning 
 machinery of Arkwright was not brought to us until after the war. The 
 power loom was not invented until 1785. There was not a factory in 
 the United States when the Constitution was adopted. The artisan was 
 his own master and worked with his own tools or on simple machinery 
 which, by moderate savings, he himself might own. There were no great 
 fortunes in the modern sense, no great corporate organizations of wealth, 
 no factory system. Is it to be wondered' at, that beginning thus with 
 such a marked general condition of industrial independence amid a 
 wealth of natural opportunities for personal success, our law should for 
 so long have kept dominant the idea of individual personal freedom ? 
 Is it strange that in the pursuit of individual fortune the interests of the 
 state were often neglected, or that opportunities for unjust advantage, 
 conferred by unjust law on the few or seized by them in spite of law, 
 failed to receive general public interest among citizens too much ab- 
 sorbed in their own personal affairs to be aroused by the abuse of the 
 powers of the state ? 
 
 With the passage of time, however, with the industrial changes which 
 have made an ■ agricultural colony a power in the markets of the world, 
 have come changes in our attitude toward the law, — changes produced 
 largely by economic variations. The modern note is not simply indi- 
 vidual freedom ; it is social freedom, — not freedom from law, but free- 
 dom by law, and in that freedom equality of opportunity. Along with 
 the tardy legislation which aims through law to repair the oversights and 
 blunders of the past and restore so far as may be that equality of oppor- 
 tunity, which seeks to take away privilege and unjust enrichment, to 
 prevent transportation discriminations, and to reduce the advantages in 
 competition of fraud over honesty, comes legislation of another kind 
 which aims at the industrial welfare of the many by limiting the indi- 
 vidual freedom of the few ; by imposing new duties on the strong for 
 the protection of the weak. 
 
 The greater part of this protective legislation must find its justification, 
 if at all, before the courts, through the police power. The old theory of 
 legal equality, based upon the existence of industrial equality, finds itself 
 in conflict with the facts of life. Unless the state must admit itself 
 powerless to deal with new conditions of modern society, authority must 
 be found in the police power to meet their demands for law. The con- 
 stant expansion of that power in the last fifteen years, as expressed in 
 legislative enactments and in the increased bulk of decisions sustaining 
 these enactments, seems to indicate an almost conscious purpose of 
 society, constrained by its own necessities, to limit the range of indi- 
 vidual freedom. This growth of the police power is one of the marked 
 features of modern American law. 
 
132 
 
 AMERICAN STATE GOVERNMENT 
 
 It is with great wisdom that the courts have refrained from defining 
 the police power lest it crystallize by definition and lose its capacity to 
 expand. In it is contained the reserved right of the state to preserve its 
 own growth, to make provisions for new conditions as they appear. It 
 is the law which must find its authority in the needs of the present and 
 not solely in the traditions of the past. It is because that law is so 
 obviously in a state of evolution that the courts have refused to say 
 where the constitutional boundaries limiting its exercise are to be fixed. 
 
 As a part of the expansion of the police power the courts have declared 
 in a number of cases the right of the legislature to enact laws not only 
 for health, safety, or morals of the general public, but for the protection 
 of individuals whose condition gives them special need of legal protection, 
 or whose individual freedom has lost in a measure its reality through eco- 
 nomic pressure. Industrial inequality is being recognized as a justifica- 
 tion for the exercise of the police power in aid of the health, safety, and 
 well-being of citizens suffering from its burden. In Holden vs. Hardy 
 (169 U. S. 366), the case in which the United States Supreme Court up- 
 held the constitutionality of the Utah Eight-Hour Law for underground 
 miners, the court, after considering at some length the conditions injuri- 
 ous to the health in the miner's occupation, observes : 
 
 The legislature has also recognized the fact which the experience of legisla- 
 tures in many states has corroborated, that the proprietors of these establish- 
 ments and their operators do not stand upon an equality, and that their interests 
 are, to a certain extent, conflicting. The former naturally desire to obtain as 
 much labor as possible from their employees, while the latter are often induced 
 by fear of discharge to conform to regulations which their judgment, fairly ex- 
 ercised, would pronounce to be detrimental to their health or strength ; in other 
 words, the proprietors lay down the rules and the laborers are practically con- 
 strained to obey them. In such cases self-interest is often an unsafe guide and 
 the legislature may properly interpose its authority. . . . The fact that both 
 parties are of full age and competent to contract does not necessarily deprive 
 the state of the power to interfere where the parties do not stand upon an 
 equality or where the public health demands that one party to the contract 
 shall be protected against himself. The state still retains an interest in his wel- 
 fare, however reckless he may be. The whole is no greater than the sum of 
 all the parts, and when the individual health, safety, and welfare are sacrificed 
 or neglected the state must suffer. 
 
 The same court more recently, in Knoxville Iron Company vs. Harbi- 
 son (183 U. S. 13), was called upon to test the validity under the four- 
 teenth amendment of an act of Tennessee requiring the redemption 
 in cash of store orders or other evidences of indebtedness issued by 
 employers in payment of wages due employees. In upholding the law 
 the court quoted with approval the decision of the supreme court of 
 Tennessee : 
 
 The legislature evidently deemed the laborer at some disadvantage under 
 existing laws and customs, and by this act undertook to ameliorate his condition 
 
THE LEGISLATURE 1 33 
 
 in some measure by enabling him or his bona fide transferee, at his election 
 and at a proper time, to demand and receive his unpaid wages in money 
 rather than in something less valuable. Its tendency, though slight it may be, 
 is to place the employer and employee upon equal ground in the matter of 
 wages, and so far as calculated to accomplish that end deserves commendation. 
 
 How great the industrial inequality must be, how far the worker must 
 be unable to protect himself to justify police legislation for his better- 
 ment, are still open questions. But the courts have declared that the 
 state may act to protect women and children against excessive labor 
 (Wenham vs. State, 65 Neb. 394, 91 N. W. 421 ; Commonwealth vs. 
 Hamilton Mfg. Co., 120 Mass. 383 ; State vs. Buchanan, 29 Wash. 602) ; 
 that it may provide regulations for greater safety and comfort of factory 
 and railway employees (People vs. Smith, 108 Mich. 527 ; State vs. 
 Whitaker, 160 Mo. 59 ; State vs. Nelson, 52 Ohio St. 88) ; that it may 
 change the common law and take away defenses in actions for personal 
 injuries which heretofore existed (Ry. Co. vs. Mackey, 127 U. S. 205 ; 
 TuUis vs. Ry. Co., 175 U. S. 348 ; Minn. Iron Co. vs. Kline, 199 U. S. 
 593) ; that it may in certain cases limit the hours of labor of men (in 
 mines: In re Boyce [Nev.], 75 P. Rep. r ; State vs. Cantwell, 179 Mo. 
 24s ; on street railways, re Ten-Hour Law for street-railway corpora- 
 tions : 24 R. I. 603) ; that it may regulate to a certain extent the terms 
 and conditions under which employees shall be paid for their services, and 
 prescribe how they shall be paid (Knoxville Iron Co. vs. Harbison, 183 
 U. S. 13 ; St. Louis, etc., Ry. Co. vs. Paul, 173 U. S. 404; Wilson vs. 
 State, 61 Kan. 32 ; Hancock w. Yaden, 121 Ind. 366). 
 
 That there is often great disagreement between judges as to the limits 
 of the police power in protective or regulative legislation of this kind, 
 goes without saying. The state courts often flatly contradict one another 
 both as to their own powers and as to the policy of the courts. Compare, 
 for example. People vs. Havnor (149 N. Y. 195), upholding a Sunday- 
 closing law for barbers, with Ex parte Jentzsch (112 Cal. 468), both 
 cases being decided in the same year, 1896. The California courts indig- 
 nantly repudiate any power on the part of the legislature to take away 
 from the barber his constitutional right to work all day on holidays and 
 Sundays, and declare that to sustain such a law would be to send the 
 barbers from the prison to the poorhouse ! In spite of the numbers of 
 decisions which have been rendered, the question of what are the limits 
 of legislative regulation or control of industry through the police power 
 is still an open one. The courts have adopted no general policy, and it 
 is fortunate that they are not obliged to adopt one. 
 
 The validity or invalidity of protective laws of this character is ordi- 
 narily a question for the state courts, and to be determined with refer- 
 ence to state constitutions only. Such is the view which the Supreme 
 Court of the United States has taken almost uniformly in construing 
 exercises of the police power by state legislatures. Numerous state laws 
 
134 AMERICAN STATE GOVERNMENT 
 
 of this kind have been tested in the federal courts to determine whether 
 they violate the fourteenth amendment and its sweeping provisions for- 
 bidding the states from abridging the privileges and immunities of citi- 
 zens of the United States or denying them the benefits of due process or 
 equal protection of the laws. That court has repeatedly declared that 
 the police power was reserved by the states at the time the original Con- 
 stitution was adopted (Mugler z's. Kansas, 123 U. S. 623), and that the 
 fourteenth amendment does not impair its authority (Barbier vs. Con- 
 nolly, 113 U. S. 27). 
 
 In Holden vs. Hardy, Judge Brown expresses the nonintervention 
 policy of the federal courts and its reason. After reviewing changes by 
 legislation which states have made in the past, he observes : 
 
 An examination of both classes of these cases under the Fourteenth Amend- 
 ment will demonstrate that in passing upon the validity of state legislation un- 
 der that amendment this court has not failed to recognize the fact that the law 
 is to a great extent a progressive science . . . ; that restrictions which had for- 
 merly been laid upon the conduct of individuals or of classes of individuals had 
 proved detrimental to their interests, while, upon the other hand, certain other 
 classes of persons, particularly those engaged in dangerous or unhealthful em- 
 ployments, had been found to be in need of additional protection. They are 
 mentioned only for the purpose of calling attention to the probability that 
 other changes of no less importance may be made in the future, and that while 
 the cardinal principles of justice are immutable, the methods by which justice 
 is administered are subject to constant fluctuation, and that the Constitution of 
 the United States, which is necessarily and to a large extent inflexible and ex- 
 ceedingly difficult of amendment, should not be so construed as to deprive the 
 states of the powers so to amend their laws as to make them conform to the 
 wishes of the citizens as they may deem best for the public welfare, without 
 bringing them in conflict with the supreme law of the land. 
 
 The broad scope for legislative action which is thus assured the states 
 is apparent from this and other cases in that court. 
 
 As the court says in Gundling vs. Chicago (177 U. S. 183) : 
 
 Regulations respecting the pursuit of a lawful trade or business are of very 
 frequent occurrence in the various cities in the country, and what such regula- 
 tions shall be, and to what particular trade, business, or occupation they shall 
 apply, are questions for the state to determine, and their determination comes 
 within the proper exercise of the police power by the state ; and unless the 
 regulations are so utterly unreasonable and extravagant in their nature and 
 purpose that the property and personal rights of the citizens are unnecessarily, 
 and in a manner wholly arbitrary, interfered with or destroyed without due 
 process of law, they do not extend beyond the power of the state to pass, and 
 they form no subject for federal interference. 
 
 See also Patterson vs. Kentucky, 97 U. S. 501 ; Barbier vs. Connolly, 
 113 U.S. 27; Jacobson vs. Massachusetts, 197 U.S. 11; Minnesota 
 Iron Co. vs. Kline, 199 U. S. 593. 
 
THE LEGISLATURE 1 35 
 
 This general attitude of the United States Supreme Court is impor- 
 tant in view of the tendency of the state courts, when holding statutes of 
 this kind to be unconstitutional, to make the fourteenth amendment one 
 of the grounds for their decision. No appeal lies to the United States 
 Supreme Court from such decisions, and when the state court bases its 
 ruling on this ground, amendments of the state constitution can afford 
 no remedy. The state courts sometimes are more sensitive to infractions 
 of the federal Constitution than the Supreme Court itself. Our court 
 of appeals, for example, nullified under the fourteenth amendment the 
 Eight-Hour Law on Public Works (People vs. Orange County Construc- 
 tion Co., 175 N. Y. 84). No further appeal remained for those interested 
 in sustaining the validity of this law. Shortly after this, however, the 
 United States Supreme Court, in a case involving a similar statute (Atkin 
 vs. Kansas, 191 U. S. 207), held that its constitutionality was beyond all 
 question. Not infrequently, when the federal question is thus removed, 
 state constitutions are amended to permit legislation for which there is 
 strong popular demand. In Colorado, before the decision of the United 
 States Supreme Court in Holden vs. Hardy, sustaining the Eight- 
 Hour Law for miners, the state court had advised the legislature that 
 a proposed law of the same order would be unconstitutional under the 
 fourteenth amendment as well as under the state constitution (In re 
 Eight-Hour Bill, 21 Col. 29). Thereafter, when the Supreme Court had 
 disposed of the federal question in Holden vs. Hardy, the legislature 
 enacted a similar law which the Colorado courts held to be unconstitu- 
 tional, but solely under the state constitution (In re Morgan, 26 Col. 
 415). Thereafter (as in New York, after the decision of Atkin vs. Kan- 
 sas) the constitution of the state was amended to permit the legislation 
 desired by the people. 
 
 In Illinois a decision (Ritchie vs. People, 155 111. 98) declares uncon- 
 stitutional a law prohibiting more than eight hours a day or forty-eight 
 hours -a week for the labor of women in factories. Its reasoning is 
 based on the fourteenth amendment and upon the state constitution. 
 The decision is generally regarded by writers on the police power as 
 erroneous so far as the fourteenth amendment is concerned, and dida 
 in subsequent decisions of the United States Supreme Court leave littie 
 doubt that the federal question would have been otherwise decided by 
 that court ; but, with the decision of the Illinois court placed squarely on 
 the federal Constitution, it is obviously a fruitless task for those inter- 
 ested in the protection of women in industry to attempt to change the 
 Illinois constitution. 
 
 The only recent decision of the United States Supreme Court on 
 legislation of the character herein considered, in which the act in ques- 
 tion was found to be unconstitutional, is Lochner vs. New York (198 
 U. S. 4S), involving our law limiting the hours of labor in bakeries to 
 sbcty per week, or ten hours a day. This decision was concurred in by a 
 
136 AMERICAN STATE GOVERNMENT 
 
 bare majority of the court and is narrow in its scope. The court refuses 
 to consider the act as one passed for the health of bakers. It construes 
 the law as one, " the real object and purpose of which was to regulate 
 the hours of labor between master and employees (all being men — si/i 
 juris) in a private business not dangerous in any degree to morals or in 
 any real or substantial degree to the health of the employee. Under 
 these circumstances," it says, " the freedom of the master and servant 
 to contract with each other in relation to their employment, and in defining 
 the same, cannot be prohibited or interfered with without violating the 
 federal Constitution." It must be admitted that, if followed in subsequent 
 decisions, the authority assumed in this case over the exercise of the police 
 power by the state legislatures will tend very materially to diminish the 
 powers of legislatures to make laws for conditions within their borders 
 requiring, in their judgment, industrial legislation. If I may venture a 
 personal opinion, it is that the decision is a reactionary one which will not 
 be enlarged beyond its immediate facts in subsequent rulings. The facts 
 themselves which the court finds as a basis for its decision regarding the 
 general healthfulness of the baker's occupation, are themselves contrary to 
 the conclusions of modern investigators, who have found the occupation 
 to be one of unusual unhealthfulness and of extraordinary mortality. 
 
 The United States Supreme Court has usually, in reviewing exercises 
 by the state legislatures of the police power, been influenced by a reflec- 
 tion well expressed by Justice Harlan in Atkin vs. Kansas (191 U.S. 
 207, at p. 223), where he says : 
 
 No evils arising from such legislation could be more far-reaching than 
 those which might come to our system of government if the judiciary, abandon- 
 ing the sphere assigned to it by the fundamental law, should enter the domain 
 of legislation, and, upon grounds merely of justice and reason or wisdom, 
 annul statutes that had received the sanction of the people's representatives. 
 
 The extent to which the police power of the state shall expand to 
 meet economic and social conditions depends, of course, largely upon 
 the attitude of the judiciary. The judicial policy, as expressed in the 
 courts, has ordinarily been against fixing upon the police power rigid 
 rules. As the supreme court of Nebraska has said in a decision sustain- 
 ing an act limiting the hours of women in mercantile establishments 
 (Wenham vs. State, 65 Neb. 394 [1902]): 
 
 We are unable to find a case where the courts have laid down any rigid 
 rule for the exercise of the police power. There is little reason under our 
 system of government for placing a narrow interpretation on this power, 
 restricting its scope so as to hamper the legislature in dealing with the varying 
 necessities of society and new circumstances as they arise, calling for legisla- 
 tive intervention in the public interest. The moment the police power is dis- 
 turbed or curbed by fixed or rigid rules, a danger will be introduced into our 
 system which will be far greater than the results arising from an occasional 
 mistake by legislative bodies in exercising such power. 
 
THE LEGISLATURE 
 
 ^2>7 
 
 An objection often heard to legislation of this kind comes from those 
 who deny that ethical gains can come through legislation. They say, 
 and it is undoubtedly true, that the courts and the legislatures can by no 
 action of theirs destroy human selfishness or rapacity. If, in the rush 
 for wealth, standards of national honor have been lowered, if we have 
 canonized capital instead of character, — if all this be true (and I do not 
 believe it to be true), then we cannot change the moral fiber of dishonest 
 men by legislation. But admitting all this, and that the law cannot trans- 
 form the character of the avaricious and cruel, even the most conserva- 
 tive of us must admit that it can, if the limitations of our law will permit, 
 create conditions under which men who are willing to conduct business 
 on a plane higher than that of mere dollars and cents, shall not be 
 ground down by competitors willing to oppress the lives of others to 
 make trade profits. As a wise and yet conservative student of our 
 institutions has said : 
 
 There are some things outside the field of natural monopolies in which 
 individual action cannot secure equalization of conditions of competition, and 
 in these also, as in the regulation of monopolies, the practice of government, 
 of our own as well as of others, has been increasingly on the side of govern- 
 ment regulation. By forbidding child labor, by supervising the sanitary con- 
 ditions of factories, by limiting the employment of women in occupations 
 hurtful to their health, by instituting official tests of the purity or quality of 
 goods sold, by limiting hours of labor in certain trades, by a hundred and one 
 limitations of the power of unscrupulous or heardess men to outdo the scrupu- 
 lous and merciful in trade or industry, government has assisted equity. Those 
 who would act in moderation and good conscience where moderation and 
 good conscience, to be indulged, require an increased outlay of money, in better 
 ventilated buildings, in greater care as to quality of goods, etc. — cannot act 
 upon their principles so long as grinding conditions for labor or more un- 
 scrupulous use of the opportunities of trade secure to the unconscientious an 
 unquestionable and sometimes even a permanent advantage ; they have only 
 the choice of denying their consciences or retiring from business. In scores 
 of such cases government has intervened and will intervene by way not of 
 interference, but by way rather of making competition equal between those who 
 would rightly conduct enterprise and those who basely conduct it. It is in this 
 way that society protects itself against permanent injury and deterioration and 
 secures healthful equality of opportunity for self-development.^ 
 
 The danger is more imaginary than real, that these interventions, as 
 President Wilson calls them, of the state in industry would, under a 
 broad construction of the police power by the courts, be too frequent ; 
 that individual initiative would be cramped by unnecessary and unreason- 
 able restraints, that handicaps would be placed upon legitimate compcr 
 tition by this type of legislation. Our legislatures, for example, have 
 almost uniformly listened with strained attention to the representatives 
 of great business interests, even when they have opposed the most 
 
 1 Woodrow Vifilson, The State, sect. 1278. 
 
138 AMERICAN STATE GOVERNMENT 
 
 reasonable limitations on their powers, the most righteous extensions of 
 their duties and liabilities. We are to-da)-, for example, behind all other 
 great civilized countries of the world in the protection which our law 
 affords the safety of employees. Such protective laws as have been up- 
 held as to their constitutionality have been almost invariably strictly con- 
 strued by the courts against the purposes of the legislature. Take a 
 single illustration. In 1847 England adopted as a part of her factory 
 act a provision requiring guards to be placed upon dangerous machinery. 
 It has enforced that law. Forty years' later New York adopted substan- 
 tially the same statute. Her courts, however, have practically nullified 
 it (compare Knisley vs. Pratt, 147 N. Y. 372, with Baddesley vs. Lord 
 Granville, 19 Q. B. D. 423 ; Simpson vs. N. Y. Rubber Co., 80 Hun, 418, 
 with de Young vs. Irving, 5 A.D. 449). Our law, as regards responsi- 
 bility of employers for industrial accidents, is generally regarded by the 
 learned textbook writers as unjust in important particulars and unsuited 
 to our time. Yet how slowly, how unwillingly have the legislatures in- 
 creased the responsibilities of employers ; how few states have abolished 
 the fellow-servant doctrine or changed the rule of assumed risk. We 
 kill or injure, we are told, over half a million people in industrial em- 
 ployments in the United States every year (see North American Re- 
 view of November 16, 1906, "Our Industrial Juggernaut"). Our own 
 Commissioner of Labor some years ago estimated that in this state we 
 annually cripple, kill, or injure 40,000 individuals in our industrial estab- 
 lishments. Yet, we have made but rudimentary changes in the law. 
 The Employers' Liability Act, adopted in this state in 1902, was not 
 more advanced in its principles than that which England adopted in 
 1880 and had abandoned as inadequate five years before our own act 
 was made law. "V'et our statute took seven years to obtain its passage 
 from the New York legislature. The Federal Employers' Liability Act 
 of 1905, the most far-reaching American law on the liability of railroads 
 to their employees, enacted after years of agitation, and now under a 
 temporary eclipse as to its constitutionality, is not more favorable to 
 those employees than the law of Prussia was in 1838. 
 
 With states vying with one another in increasing competition for 
 trade, our legislatures are not likely to impose handicaps which will drive 
 business interests away from their borders. This hesitancy of the legis- 
 latures to place these interests at a disadvantage in competing with 
 establishments in other states, coupled with the conservatism of the 
 courts, have generally proved sufficient guaranties against meddlesome 
 and unnecessary legislation, and such guaranties are likely to continue 
 even if the police power be largely expanded to meet new conditions. 
 
 The danger from the increase of the police power is not great. The 
 danger from judicial construction of that power which shall stop its ex- 
 pansion is more serious. Our social order has many enemies, enemies 
 who find arguments for presaging its disintegration and decay in the 
 
THE LEGISLATURE 
 
 139 
 
 enormous concentration of wealth, in the growth of the great corpora- 
 tions, in the financial dishonesty which has been so recently exposed in 
 high places, and in the misery and wretchedness of thousands whose 
 lives are exploited in industry. But their arguments, with all the exag- 
 gerations and falsehoods which may be added to them by a sensational 
 press, while they may inflame the blood of discontent, will never carry 
 general conviction until the courts have first convinced the people that 
 in the presence of social and industrial wrong the state is powerless 
 to meet conditions which demand law ; until the courts have convinced 
 the people that, bound and fettered by an inflexible written Constitution 
 framed over a century ago, the state cannot exercise functions which 
 the present needs of society require it to exercise. 
 
 These decisions' of the courts which the socialist looks for with eager 
 expectancy — declarations of the paralysis of the state, of its inability to 
 deal with economic problems by law — are, however, few and far between. 
 Reactionary judges there may be at times who refuse to be our con- 
 temporaries, who look only to the past to judge the needs of the present, 
 — yet slowly but surely, as public opinion matures, the power of the 
 state is expanding to protect as well as to punish, in a land wherein the 
 recognized rights of the individual include not only liberty but life and 
 a fair field for the pursuit of happiness. 
 
Ill 
 
 THE JUDICIARY 
 
 COURTS OF LAST RESORT ^ 
 
 By William L. Carpenter 
 
 In America courts of last resort occupy a unique position. Our written 
 constitutions distribute the powers of government among three depart- 
 ments, — the legislative, the executive, and the judicial. Who shall deter- 
 mine the limits of the jurisdiction of these several departments ? This 
 question is not answered in express words in any of our constitutions. 
 It was answered, however, at a very early date by Chief Justice Mar- 
 shall, speaking for the Supreme Court of the United States in the cele- 
 brated case of Marbury vs. Madison. In that case Marshall held that in 
 deciding a controversy according to law, the judiciary — the court of 
 last resort — was bound to apply the higher law found in the Constitution, 
 rather than an opposing law enacted by the legislative department, and 
 consequently to declare unconstitutional, null, and void the conflicting 
 legislative enactment. It followed from this decision and this reasoning 
 that any wrong caused by the legislative department of government 
 exceeding its constitutional limitations could be redressed by the judiciary 
 
 — by the courts of last resort. And that any wrong committed by the 
 executive department of government in exceeding its constitutional limi- 
 tations could likewise be redressed by those courts. It also followed 
 from this decision that there was no constitutional means of obtaining 
 redress for a wrong committed by courts of last resort in exceeding 
 their jurisdiction. This decision made the judiciary, as has well been 
 said, the keystone of the arch of government. 
 
 Many eminent lawyers denied the correctness of Marshall's opinion. 
 Some eminent lawyers to-day doubt its correctness. The Constitution, it 
 is said, makes each of the departments of government independent and 
 equal. The decision, it is said, destroyed this equality. It made the 
 judiciary, represented by the court of last resort, supreme, — the execu- 
 tive and the legislative departments of government, subordinate. Whether 
 Marshall's opinion was or was not correct — that is, whether he placed 
 upon the Constitution the construction intended by those who framed it 
 
 — is a question which it would be idle to discuss, for that construction 
 
 1 From an address before the American Bar Association, 1909. 
 140 
 
THE JUDICIARY 141 
 
 has been universally accepted. It was a wise construction. It furnished 
 a constitutional tribunal to determine every question which might arise. 
 It lessened — perhaps it banished — the danger of disruption of govern- 
 ment arising from differences between opposing factions. The principle 
 of this decision was not confined to its application to the national gov- 
 ernment. It applied with full force to the government of the several 
 states. This has been universally recognized. It may be said, therefore, 
 that as the Supreme Court of the United States is the keystone of the 
 arch of the federal government, so likewise the court of last resort of 
 each state is the keystone of the arch of the government of that state. 
 
 It will be observed that this paramount authority of the judiciary rests 
 upon the proposition that it is the duty of the judiciary to determine 
 controversies according to the law; and the possession of this extraor- 
 dinary authority has never endangered the rights of a free people, be- 
 cause the only way that it could be exercised was by determining con- 
 troversies according to law. All our constitutions, both federal and state, 
 may then be read as if they contained the provision : Upon the faith 
 that our court of last resort will determine controversies according to 
 law, we, the people, grant it supreme authority. Faith that our courts 
 of last resort will determine controversies according to law is then the 
 rock upon which our governments are built. That courts of last resort 
 must determine controversies according to law is the most elementary 
 of legal principles. This is almost the first principle learned by every 
 lawyer, and this means every judge. Yet it is a principle which should 
 be emphasized and reemphasized, for it should never be lost to view. 
 It should always be appreciated. It is not always appreciated. I will 
 say nothing derogatory of judges. If there is any one who believes that 
 judges never fail to appreciate this fundamental truth, I am immensely 
 pleased, and I will not attempt to destroy his faith. Certain it is that 
 lawyers do not always appreciate it. If they did, they would not, as 
 they often do, urge considerations calculated to incite feelings of sym- 
 pathy and prejudice, and thereby hide from the view of the courts the 
 legal questions involved. Nor would they seek to justify such conduct 
 by saying. If I can succeed in convincing the judge of the merits of my 
 client's case, I will take my chances on the law. With this conduct on 
 the part of intelligent lawyers, it should not surprise us that laymen 
 should have obscure views on this question. It should not surprise us 
 that at times they should, in scathing terms, condemn and denounce a 
 judge for deciding a controversy in which they are interested in accord- 
 ance with law and opposed to their ideas of justice. It is impossible to 
 believe that the man who utters such denunciation and condemnation 
 understands the fundamental truth which I have tried to enunciate. It 
 cannot be that he understands that judges are bound by the most sacred 
 oath to decide controversies according to law ; that faith that they should 
 so decide them is the most fundamental of constitutional principles ; that 
 
142 
 
 AMERICAN STATE GOVERNMENT 
 
 men cannot be accorded equal rights and privileges unless those rights 
 and privileges are all measured by the common standard, — the standard 
 furnished by the law. He who appreciates this truth cannot fail to see 
 that any effort made to induce courts of last resort to disregard the law 
 in deciding controversies is an effort to overthrow constitutional govern- 
 ment. I plead not for the execration of the man who makes that effort, 
 but for his enlightenment. He should be made to appreciate the truth. 
 Every citizen should be made to appreciate it. A greater endeavor 
 should therefore be made to teach that truth. It should become a 
 popular truth. 
 
 It may be asked, \\'hat difference does it make that a judge is de- 
 nounced for faithfully performing the duty reposed in him by the people ? 
 His duty is none the less clear. He has no choice. He must perform it. 
 He must say, as Chief Justice Marshall said in a similar case : 
 
 No man is desirous of placing himself in a disagreeable situation. No man 
 is desirous of becoming the peculiar subject of calumny. No man, might he let 
 the bitter cup pass from him without self-reproach, would drain it to the bottom. 
 But if he have no choice in the case, if there be no alternative presented to 
 him but a dereliction of duty or the opprobrium of those who are denomi- 
 nated the world, he merits the contempt as well as the indignation of his 
 country, who can hesitate which to embrace. 
 
 It is none the less a lamentable situation if judges of courts of last 
 resort feel that they cannot decide a controversy according to law with- 
 out losing the popular favor which alone insures their continuance in 
 office. If such a situation confronts a judge, let us hope that he will 
 conduct himself according to the precepts of Marshall. Every one of us 
 can recall instances of judges who have so conducted themselves, and 
 who have been made martyrs because they did their duty. But the 
 people have no right to subject their judges to any such strain, and if 
 they do, it is to be feared that some of them will not stand the test. 
 
 It often happens that the judge who fearlessly performs his duty in 
 disregard of what he believes to be the will of his constituents finds that 
 he has increased instead of diminished his popularity. And I think, too, 
 that it sometimes happens that the judge who shamelessly disregards his 
 duty in compliance with what he believes to be the will of his constitu- 
 ents finds that he has lost instead of increased his popularity. Each of 
 these men believed he was making the supreme sacrifice ; one, the 
 sacrifice of his life to preserve his honor ; the other, the sacrifice of his 
 honor to preserve his life. Happily for the perpetuity of American 
 institutions, each found himself mistaken. By losing his life for the sake 
 of duty the one found it ; by saving his life at the expense of duty the 
 other lost it. These experiences prove, as nothing else can, the capacity 
 of the American people for self-government. There is an obligation on 
 the part of the judge to decide controversies according to law. There 
 
THE JUDICIARY 1 43 
 
 is an obligation on the part of the people to respect him for the per- 
 formance of his duty. In general it may be said that the people will keep 
 the faith. 
 
 The whole duty of courts of last resort, then, is to decide the contro- 
 versies brought before them according to law. To decide a controversy 
 according to law, the court must perform two duties : first, it must under- 
 stand the facts so that the real issue is clearly perceived ; second, it must 
 find, state, and apply to the determination of that issue the true rule of 
 law. There is a possibility of the court's making a mistake in perform- 
 ing each of these duties. The consequences are more serious if the mis- 
 take is made in the performance of the latter duty, for then not only is 
 an erroneous decision made in the particular case, but a precedent is set 
 which affects the rights and duties of every one in the state. Judging 
 from my limited experience as a member of a court of last resort, the 
 mistake most frequently committed, however, is a failure to understand 
 the case, — a misconception of the controlling issue, resulting not, it is true, 
 in unsettling the law, but none the less in an erroneous decision. This 
 consequence is, ^lowever, serious enough, for I imagine it would afford 
 little consolation to a defeated suitor to be told that the erroneous deci- 
 sion which denied him his right left the rights of his neighbors unimpaired. 
 
 Whenever an erroneous decision pronounced by courts of last resort 
 arises from a failure to understand the case, the office of the argument 
 of counsel has not been performed, for whatever else that argument should 
 do, it should correctly analyze the facts and clearly point out the control- 
 ling issues. I think practicing lawyers would be surprised if they knew 
 how often arguments of counsel fail to perform this important service. 
 I am willing to concede that the reason for this failure is sometimes to 
 be found in the inattention of the judges who constitute the court. It 
 must be confessed that judges sometimes do not understand the argu- 
 ment of counsel simply because they do not give it proper attention. I 
 think, however, that it may be said, as a general proposition, that the 
 failure of courts of last resort to understand a case is chargeable to the im- 
 perfect argument of counsel. In their anxiety to achieve a victory coun- 
 sel yield to the temptation of stating the facts from the point of view 
 most favorable to their client's interest. Frequently they undertake to 
 state their case in such a way as to appeal to the supposed sympathy or 
 prejudice of the judges and to blind them to the legal questions involved. 
 More often they bring into prominence immaterial facts which they think 
 disclose equities in their client's favor. They place an undue emphasis 
 upon certain material facts, overlooking other essential facts, and thus 
 contend for a decision in their client's favor upon an issue which is not 
 the true issue in controversy. In all such cases — and such cases are 
 altogether too numerous — the court of last resort must, without the aid 
 of counsel, discover the true issue and the principle by which it is to be 
 decided. It is not surprising that the court, thus compelled to perform 
 
144 AMERICAN STATE GOVERNMENT 
 
 the duty of both judge and counsel, should sometimes fail to perform 
 one or the other — perhaps both — of these duties. There might be 
 some justice in holding that counsel who improperly place the court in 
 this dilemma is estopped from making any complaint. The question 
 arises, What can be done to remedy this grievance ? Of course, the most 
 obvious remedy is open to counsel. They should correct their practice. 
 They should state the facts clearly and, above all, fairly. Instead of en- 
 deavoring, as many of them do, to place a construction upon the facts 
 most favorable to their client's interest, they should do their utmost to 
 construe them as they should be construed by a fair-minded judge. I am 
 aware that many lawyers will say, " I owe a duty to my client to win this 
 controversy ; that duty justifies the practice you condemn." This is tak- 
 ing too narrow a view of our profession and of our professional obliga- 
 tions. We have no right to make the winning of suits the supreme 
 object of our professional career. We should be faithful to every duty we 
 owe our chent, but we should never forget that we owe duties to society 
 and to ourselves. These latter duties are paramount. Our client has a 
 right to expect that we will do all that an honest lawyer can to win his con- 
 troversy. He has, however, no right to ask us to do more. If his suit 
 cannot be won by honest endeavor, it should not be won at all. We have 
 no right to overstate his case, we have no right to misstate his case, 
 because we have no right to try to deceive the court. Nor is it true that 
 the practice under consideration renders valuable service to our clients. 
 A lawyer is not serving his client by advancing an argument based on a 
 misconception of the testimony, — an argument which must crumble with 
 the foundation upon which it rests. In that case he presents no argu- 
 ment for his client. He neglects his client's interests. He injures rather 
 than benefits him. Indeed, I believe it may be said generally that a 
 lawyer renders his client most efficient service when he serves him with 
 an enlightened conscience. I think it may also be said that their lack of 
 fair-mindedness explains why so many lawyers of the greatest ability fail 
 to attain the highest place in our profession. 
 
 I think, too, that the judges constituting the court can do something 
 to remedy this evil. If they can prove by their decisions that they are 
 never misled by improper statements, they will do much to discourage it. 
 There is no doubt that they are sometimes misled, and this circumstance 
 affords the only adequate explanation for the fact that some lawyers of 
 high rank persist in a reprehensible practice. 
 
 An attentive attitude on the part of judges will do much to encourage 
 lawyers to make fair statements and proper arguments. Lawyers will 
 hesitate to make erroneous statements to watchful, attentive, and trustful 
 judges., \^'hen a lawyer sees that he is receiving the undivided attention 
 of an intelligent, honest, fair-minded judge, he will endeavor to merit the 
 confidence he is receiving. Such attention, it must be confessed, he does 
 not always receive. It must be admitted that judges sometimes do not 
 
THE JUDICIARY 145 
 
 closely attend to the arguments that are addressed to them. No one can 
 justify this, but there is some excuse for it. 
 
 While most of the arguments addressed to a court afford aid in reach- 
 ing a correct decision, it cannot be said that all of them do. Sometimes 
 those arguments — so-called arguments — are mere aggregation of words, 
 emanating from the mouth of a lawyer determined to use every minute 
 of the time given him by the rules of the court. The judge who can 
 sleep in the daytime is to be envied in such a case. He can escape 
 what his wakeful and more unfortunate associate must endure. It is un- 
 necessary to state that a judge is not attentive to such an argument. If 
 you think he is, you are deceived. That, however, is a matter of litde 
 consequence, for nothing could be gained by such attention. The serious 
 consequence is that such experiences are, if often repeated, almost cer- 
 tain to create a habit of inattention, — a habit that may persist when 
 arguments should be listened to attentively. It is not true, as was once 
 said by a waggish friend of mine, that he can always identify a member 
 of a court of last resort by the vacant expression of his countenance. If, 
 however, it were true, the experience I have described explains if it does 
 not justify it. Of course we will all agree that the judges should correct 
 their habit of inattention and do their utmost in every way to get a clear 
 conception of the issue in controversy. They then reach the more im- 
 portant duty of declaring the law which controls that issue. They must 
 bring to the discharge of this duty all the highest judicial qualities, — in- 
 tegrity, learning, wisdom, courage, industry, and, above all else, fair-mind- 
 edness. Their commission from the people authorizes them to declare 
 the law applicable to the decision of the controversy, but it does not 
 authorize them to declare law that is not applicable to that decision. If 
 they do that, they usurp an authority that has never been given them. 
 The successors of these judges, when called upon to decide a controversy 
 in which the supposed principle is applicable, possess the undoubted and 
 sole authority to determine its correctness. Moreover, without the aid 
 afforded by the actual controversy, the court lacks one of the necessary 
 elements to a correct determination of the controlling legal principle. 
 For, by its application to an actual controversy, the justice of that prin- 
 ciple can be tested. Though this test is not the only one which should 
 be applied, it is one which can never be safely omitted. So it often hap- 
 pens that when judges state a legal principle inapplicable to the case 
 under consideration, they state it incorrectly. It may be said that this 
 mistake is not irremediable, because such a statement is not a precedent 
 binding on the court ; the court having entire liberty to repudiate it upon 
 the ground that it is an obiter dictum. But I am persuaded that courts 
 should take greater care than they do to guard against such mistakes. 
 Even though they are subsequently corrected, their commission tends to 
 weaken public confidence in the courts that committed them; and the 
 consequence of such a mistake is sometimes disastrous. The reputation 
 
146 A^IERICAN STATE GOVERNMENT 
 
 of Chief Justice Taney, acquired by a long life of usefulness and fidelity, 
 was almost destroyed Ijy his decision in the celebrated Dred Scott case. 
 It is true that the principles of that decision were detested by a majority 
 of Americans and they believed them to be incorrect, but the reputation 
 of this eminent jurist would not have seriously suffered had they not been 
 persuaded that these principles were inapplicable to the controversy 
 under consideration. Faith in him was lost because it was believed — I 
 think erroneously believed — that he took advantage of his position to 
 declare a law which he had no authority to declare. 
 
 The question arises, \\'hat is this law by which controversies are to be 
 determined ? Part of that law is in writing — commands made by the 
 people themselves or by those to whom they have delegated authority 
 to make laws. As to this part, it may be emphatically stated, the law 
 applied by the court is the law made by the people. But this part is a 
 very small part indeed of the law applied by the courts in determining 
 controversies. Nearly all the law so applied is unwritten law. The writ- 
 ten law, as has well been said, is only "' the fringe upon the body of the 
 law," and after its consideration we have not answered the question, 
 What is the law by which controversies are determined ? 
 
 Every lawyer should read and reread Mr. James C. Carter's excellent 
 book, entitled " Law, Its Origin, Growth, and Functions." That book 
 throws great light on the question, What is the law, and, at least, mate- 
 rially contributes to its correct answer. Whoever reads that book intelli- 
 gently and diligently, though he may not entirely agree with Mr. Carter, 
 will, I believe, be convinced that the law applied by the court in deter- 
 mining controversies is the same law which regulates human conduct. 
 The ordinary individual in his everyday affairs regulates his conduct by the 
 same law which the court applies in determining controversies. The man 
 of affairs in deciding what course he will pursue to advance his own inter- 
 est and at the same time to avoid injury to his neighbor, is engaged in the 
 same process that the court is engaged in when it determines a controversy 
 involving a similar question. Each is making a decision according to the law 
 which regulates human conduct. What is the law which regulates human 
 conduct ? That is a question which I do not believe the wisest man in the 
 world can correctly answer. That is the question the courts are constantly 
 striving to answer, but which they have not yet answered. While we know 
 some of the principles of this law, we do not know all of them, — perhaps 
 we do not know its fundamental principle. We can say, however, that it is 
 the law by which a people advance from the lowest and most degraded 
 savagery to the highest civilization, — to a civilization higher and more 
 splendid than to-day is dreamed of. Who made this law ? Certainly the 
 courts did not make it. No one ever consciously made it. " It is," says Mr. 
 Carter, " the form in which human conduct — that is, human life — pre- 
 sents itself under the necessary operations of the causes which govern con- 
 duct." It is, I add, in the highest sense the people's law. Courts of last 
 
THE JUDICIARY 147 
 
 resort alone possess official authority to declare this law. They possess that 
 authority because the people have given it to them. They declare it, as 
 has heretofore been stated, by applying it in deciding a controversy. 
 This declaration is not the law, but it is considered the highest and best 
 evidence of the law. We call it a precedent. It is considered the best 
 evidence of the law because it is ascertained by the best method human 
 ingenuity has been able to devise. If the law so declared is correctly 
 declared, that is, if it really is a rule which regulates human conduct, 
 the court of last resort has rendered a most beneficent service, for it is 
 of the utmost importance that the people should know the law which 
 regulates their conduct, — the law by which they advance toward a higher 
 civilization. As by knowing the law of health people preserve and pro- 
 long their lives, so, by knowing the law which regulates their conduct, 
 they make more certain and speedier progress toward their destined — 
 their glorious — end. 
 
 This knowledge will contribute to our material, moral, and also, I 
 believe, to our spiritual upliftment. 
 
 Heretofore I endeavored to emphasize the truth, that faith that courts 
 will determine controversies according to law is the foundation of Ameri- 
 can government. I now emphasize a truth far more important. Upon 
 this same faith must rest, in part at least, our hope of advancing 
 toward a higher civilization, — our hope of making material, moral, and 
 spiritual progress. 
 
 But what if courts do not determine controversies according to law .'' 
 Suppose that instead of correctly declaring the law, they declare it incor- 
 rectly ; suppose they make a mistake in declaring the rule which regu- 
 lates human conduct, and that human conduct, instead of being regulated 
 by the rule declared, is regulated by an opposing rule ? Human conduct 
 will, in that case, be regulated by its own law and not by the declaration 
 of the court. And this decision must sooner or later — the sooner the 
 better — be repudiated by the courts. Fortunately the court, by declar- 
 ing an incorrect rule, does not materially retard human progress, because, 
 as already said, our conduct will be regulated by its own law and not by 
 the rule incorrectly declared. By declaring an incorrect rule the court 
 merely misses an opportunity of advancing human progress. Judges 
 sometimes take themselves too seriously. They fear they will change 
 the law if they incorrectly declare it. Of course they should take every 
 care to correctly declare it. But if a collision occurs between their 
 declaration and the law, the law does not suffer ; they suffer. 
 
 If any one can prove that the law declared in a judicial decision is not 
 in harmony with human conduct, he should not keep silent. While it is 
 the duty of eyery one to uphold the judge who decides a case according 
 to law, it is equally the duty of every one to criticize a decision which is 
 not according to law. But the extent or severity of this criticism does 
 not afford the test of the correctness of the law so declared. That test 
 
148 AMERICAN STATE GOVERNMENT 
 
 is afforded not by the voice of the people but by their conduct. The 
 test is not whether the rule is popular or unpopular, but whether human 
 conduct is in fact regulated by it. If, by acting in accordance with this 
 rule, we advance toward a higher civilization, it is the law. That is the 
 test. If it does not stand this test, it is not the law. 
 
 There are two sources from which courts of last resort get the law 
 which controls conduct, — the law by which they determine controversies. 
 One of these sources is (to quote from Mr. Carter), " a study of con- 
 duct and consequence," and by applying in this study principles of 
 reasoning approved by the common judgment of mankind. This is the 
 source from which individuals get the law by which they deteiTnine their 
 conduct. \\'hen a judge gets his law from this source he is said to be 
 deciding a case on principle, or according to the rule of common sense. 
 The other source from which a court of last resort gets the law is from 
 decisions made by itself or by other courts of last resort. When the law 
 is taken from this source, a court is said to be deciding a case upon 
 precedent. It is unsafe for a judge to neglect either of these sources. 
 
 The judge who deduces his law entirely from precedent — who, in 
 other words, is a slave to precedent — is the most inefficient of judges. 
 He will delay the decision of the most unimportant question until he 
 finds a case in point. Having no vision of the fundamental principles 
 of the law, he is almost certain to ridiculously misapply the precedent and 
 thus reach a decision erroneous and often absurd. 
 
 On the other hand, the judge who never looks at authorities, who has 
 — as he often says — a contempt for precedents, but who possesses a 
 vigorous intelligence and sound understanding and decides all cases ac- 
 cording to the rule of common sense, will decide the great majority of 
 them correctly, but some of them he will decide incorrectly. He will de- 
 cide the majority of these cases correctly because they are simple cases 
 controlled by some principle of elementary law. He will decide others 
 incorrectly because they are not simple and because they are controlled 
 by a principle of law which can be discovered only by the aid of great 
 wisdom and extraordinary powers of reasoning. 
 
 This wisdom and this power of reasoning were possessed by many of 
 the great judges and used by them in making their decisions. The judge 
 who decides difficult cases without examining these decisions refuses to 
 look at the light. He refuses to get his law from the best source. By 
 implication he asserts his superiority to all these great judges who have 
 gone before him. He would be convinced, if he studied their decisions, 
 that their united wisdom exceeded his. 
 
 The truth is, that to decide the law with even approximate accuracy, a 
 judge must be neither a slave nor an enemy of precedent. He must be 
 a master of precedent, and he must also be a diligent student of human 
 conduct and its consequences, possessing a logical mind, able to reason 
 correctly. 
 
THE JUDICIARY 149 
 
 The decisions of courts of last resort must, at least, according to our 
 American notions, be in written form. This is done for the double pur- 
 pose of insuring accuracy — for writing is a great aid to exactness- — 
 and also that the world may know the rule of law declared and applied. 
 Extraordinary care should be used in the preparation of these opinions. 
 They should contain a statement of the facts essential to a clear under- 
 standing of the issue involved. Every other fact should be omitted. 
 They should contain a clear statement of the rule of law applied to the 
 controversy, and they should contain nothing else. 
 
 It is a mistake to attempt to discuss every proposition urged by coun- 
 sel ; if the proposition is manifestly frivolous, if it is based upon an 
 erroneous conception of the record, or if it is answered by elementary 
 principles of law, the opinion is disfigured by its consideration. Its dis- 
 cussion tends to conceal other and possibly important principles decided. 
 Opinions should be appropriate to the case. If there is involved no im- 
 portant principle, no opportunity is presented for a great opinion, and 
 judges make a great mistake if they attempt to write one. My limited 
 experience as a member of a court of last resort convinces me that the 
 great majority of cases present no important question. Many of them 
 are chancery cases where the controlling issue depends upon the credi- 
 bility of witnesses. In such cases I think the court does its full duty 
 when it contents itself with the statement that it gives credit to certain 
 testimony. I think it is a mistake to undertake to state why that credit 
 is given. In many cases the only issue presented is determined by a con- 
 struction of the record. In those cases all that the opinion can do is to 
 state its proper construction. Many other cases are determined by the 
 application of principles of elementary law, about which there is not the 
 slightest question. I doubt if it is wise to publish any of these opinions 
 in the report. 
 
 Courts should not be unduly solicitous to write opinions that will be 
 convincing. Arguments designed to convince are often selected from 
 considerations of a temporary and transitory nature. They are out of 
 place in a record designed to be permanent. And though these argu- 
 ments silence adverse criticism and make the opinion popular, they have 
 litde tendency to establish its correctness. Its correctness, as I have here- 
 tofore endeavored to prove, is to be tested by its application to human 
 conduct. 
 
 Seldom is the judge of a court of last resort given the opportunity to 
 write a great opinion. This is most fortunate. That opportunity may 
 come, however, and if it comes, it comes unheralded. It may be found 
 that in some meager record, poorly briefed, there is presented for deci- 
 sion an issue which requires the declaration and application of a rule of 
 law never before discovered. It may be in a case which must be decided 
 without precedent ; it may be in a case which must be decided in opposi- 
 tion to all precedent. No judge should crave such a task ; no judge should 
 
I50 
 
 AMERICAN STATE GOVERNMENT 
 
 shrink from the responsibiUty of performing it. If it comes, he should 
 pray that he may be equal to his opportunity ; that he may contribute 
 to the advancement of humanity by correcdy declaring the law. 
 
 THE PR.\CTICAL WORKING OF THE APPEAL SYSTEM i 
 By Henry T. Lummus 
 
 The traditional function of the criminal courts is to punish infractions 
 of the criminal law, not much, if at all, as a measure of retribution to 
 the offender for his sins, but rather as an example and a warning to 
 deter the particular criminal and other possible criminals from similar 
 offenses. It is generally conceded that the good effect of punishment is 
 measured by its speed and certainty, not by its severity. While a remote 
 or merely possible punishment has little deterrent effect, few persons, 
 unless professional criminals, indulge in crime where there is a practical 
 certainty of a moderate but speedy punishment upon detection. The 
 law should act as speedily as is consistent with a fair preparation 
 and trial. 
 
 Perhaps the foregoing statement of the purposes of criminal justice 
 requires modification, in view of the modern use of suspended sentences 
 and probation. The interests of the individual defendant and his family 
 are not to be forgotten in the desire to make an example to the com- 
 munity. An opportunity for reformation without punishment may convert 
 a possible public charge into a good citizen. In many cases immediate 
 punishment would involve a hardship upon the defendant or his family, 
 out of proportion to its value as a deterrent to him or to others. In 
 such a situation the case may be filed, or the defendant may be placed 
 on probation, with or without a requirement that he pay a fine during 
 the probation period, or a sentence may be imposed and its execution 
 suspended on condition that the defendant shall be of good behavior. 
 But it is essential to the efficacy of such lenient measures that the action 
 of the law be especially swift and certain in case the defendant construes 
 leniency as weakness and shows his contempt for the law by further 
 violations of it. The necessity of promptness, certainty, and finality in 
 our criminal practice is increased, rather than diminished, by the growing 
 use of probation. Unless there lies behind probation the power of the 
 law, ready to vindicate its authority by speedy, certain, and final action 
 in the court that granted the leniency, the probation system rapidly 
 degenerates into a feeble sentimentalism. 
 
 The lower courts are expected to perform two duties in the adminis- 
 tration of criminal law. Their first duty is to conduct the preliminary 
 investigation in cases of murder, robbery, and other serious crimes 
 
 1 From a pamphlet on " The Failure of the Appeal System," published by the Massa- 
 chusetts Prison Association, 1909. 
 
THE JUDICIARY 151 
 
 beyond their jurisdiction, to determine whether there is probable cause 
 to hold the defendants to await the action of the grand jury, and to fix 
 the bail when probable cause is found. That function they are able to 
 perform with general satisfaction. 
 
 Their second duty is to relieve the superior court of the trial of the 
 less important, but still important, criminal cases, leaving to the superior 
 court the weightier affairs that are fully enough to occupy the undivided 
 attention of that court. In the exercise of that function the lower courts 
 are supposed to have great influence in the community, and by their 
 action to produce order and inspire respect for law. The right of appeal, 
 in theory, exists for the purpose of giving relief in those exceptional 
 cases in which the defendant is convinced that the lower court has erred ; 
 and in such exceptional cases the superior court is supposed speedily to 
 reconsider the case and to render the judgment that the lower court 
 ought to have rendered. 
 
 It certainly is true that the lower courts come into closer and more 
 frequent contact with the mass of the people than do the higher courts ; 
 and if the purpose of the criminal and civil laws is to be brought home 
 to the mass of the people in such a way as to teach the great lessons of 
 respect for law and obedience to law that are essential to the welfare of 
 the state, it must be done in the lower courts. We have at the present 
 time, especially in our manufacturing cities and towns, not only our 
 English-speaking population, with its lawless element, but also a vast 
 army of foreigners, many of them industrious and law-abiding, but con- 
 taining among them some of the scum of Europe and Asia. The lawless 
 element know of the superior court as the, tribunal to which their associ- 
 ates fly for refuge when sentenced in the lower court; some of them 
 may have been to the superior court on appeal, with more or less suc- 
 cess. But the tribunal whose doings they actually see and hear about 
 every day, whose deeds are chronicled in the local newspapers and form 
 the subject of daily gossip, is the local lower court. To the mass of 
 people the administration of the law in the lower courts typifies the 
 administration of the law in general. The only glimpse of the judicial 
 power of the state that they commonly get is the one they get in their 
 own community through the action of their own lower court. If that 
 glimpse shows the judicial power to be feeble, slow, uncertain, and liable 
 to be halted and rendered impotent at the will of any person interested, 
 it is not surprising that many people find it hard to believe that the state 
 has anywhere any efficient force for compelling the performance of public 
 or private duty, or that the mandates of the public, acting through the 
 legislature, are entitled to any respect or obedience. 
 
 It is easy to see that the lower courts might be powerful agencies for 
 law and order. The President-elect in a recent speech has called atten- 
 tion to the public importance of the courts having jurisdiction over small 
 cases, both criminal and civil, and to the necessity of taking measures 
 
152 AMERICAN STATE GOVERNMENT 
 
 to induce lawyers of real judicial ability to preside over such tribunals.^ 
 But the question is open in Massachusetts, whether under the present 
 system the lower courts can possibly perform the duties for which they 
 were intended, or fill the place in the judicial system that they are com- 
 monly supposed to occupy. 
 
 The number of criminal appeals from the lower courts is very great.'^ 
 The appeal must be taken, under the law, when the sentence is pro- 
 nounced, and unless the sentence is a small fine the defendant naturally 
 seizes the opportunity to make void the action of the court, hoping that 
 some chance in the higher court may turn out to his advantage. If he 
 had to select his tribunal before trial, he might prefer to be tried or 
 sentenced by the lower court rather than by a juiy or by any other 
 court ; but ha\'ing the right to appeal after knowledge of the adverse 
 decision, — and it makes no difference how correct and just that decision 
 was, or that the defendant pleaded guilty, — he naturally avails himself 
 of it. Even though he were certain ultimately to pay the penalty, he 
 would nevertheless appeal from any considerable sentence of imprison- 
 ment, merely to put off the evil day, just as defendants sentenced in 
 the superior court regularly went up on frivolous and hopeless bills of 
 exceptions until St. 1895, Chapter 469 (R. L., Chapter 220, Section 3), put 
 a stop to that practice by providing for the execution of sentences not- 
 withstanding exceptions. By that statute the legislature put an end to a 
 great evil, which, however, caused nothing worse than delay; the system 
 of appeals from lower courts, which still remains, contains what seem to 
 be much greater evils. 
 
 The history of the ordinary appeal case shows the defects in the pres- 
 ent system. The case is not tried in the lower court until the defendant 
 is ready and has his case fully prepared. Upon a full trial before the 
 judge in the lower court the defendant requires the judge to apply the 
 doctrine as to the burden of proof in criminal cases, and to discharge 
 the defendant if there is any reasonable doubt. If the judge fails to find 
 the defendant guilty, the defendant can never be prosecuted again, even 
 though the decision is grossly erroneous. If, however, the defendant is 
 convicted, he then seeks to have the judge place the case on file, or put 
 him on probation, or, at the worst, impose a small fine. If probation or 
 filing is the result, the defendant may not immediately appeal, although 
 if placed on probation he may violate every condition of his probation 
 and then appeal whenever it is sought to sentence him for such violation ; 
 and if the case is filed, the defendant may commit every known kind of 
 
 1 See Green Bag, September, 1908. 
 
 2 The volume and increase of the appeal business in the superior court is shown by the 
 following table of criminal cases in that court for the commonwealth. 
 
 Year ending October i, 1906 
 Year ending October i, 1907 
 Year ending October i, 1908 
 
 Indictment Cases 
 
 Appeal Cases 
 
 2550 
 2649 
 3371 
 
 4913 
 5034 
 6237 
 
THE JUDICIARY 1 53 
 
 misconduct, and yet the lower court cannot take the case from the files 
 and impose any effectual punishment. Whatever the judge does, how- 
 ever, the government cannot appeal. He may refuse to punish the most 
 flagrant offense within his jurisdiction, and the public have no rights ; 
 but he cannot impose a fine of one cent upon a self-confessed criminal 
 without the liability to an appeal. He is deemed worthy to be trusted 
 with all the rights of the public, but with none of the rights of the 
 defendant. 
 
 If the lower court imposes a penalty upon the defendant, the defend- 
 ant then appeals and gives bail. If all the criminal cases, original and 
 appellate, in the superior court were to be tried, the number of justices 
 would have to be increased in order to give the district attorneys adequate 
 time to dispose of the mass of criminal business in that court. Even if a 
 district attorney is proof against political and personal pressure, he has 
 to recognize the necessity of getting through with his business. A crim- 
 inal case that has to be continued for one term is likely to be lost when 
 the next lot of new cases comes up ; a second continuance is equivalent 
 to an acquittal. The cases coming from the lower courts on appeal, 
 though important to the peace and good order of the community, are 
 overshadowed by the murders, robberies, burglaries, and other cases 
 begun by indictment ; and naturally the appeal cases are the ones that 
 have to be disposed of, if possible, without taking time for trial. Many 
 of them are nol-prossed, or continued, or left on the docket without 
 action, or a plea of guilty is taken and by agreement the minimum pen- 
 alty is imposed. If, however, the district attorney insists upon a real and 
 effective punishment, the defendant makes his fourth attempt to escape 
 by means of a verdict of the jury. He has already had a full trial in the 
 lower court, but he now asks a second tribunal, the jury, to acquit him 
 if it can find any reasonable doubt of his guilt. Sometimes a defend- 
 ant found not guilty in the lower court of one of two inconsistent charges, 
 in a doubtful case, secures his acquittal on the other charge in the supe- 
 rior court by showing that he was really guilty of the charge upon which 
 he was found not guilty below. If he is convicted by the jury, he appeals 
 no further on the facts, not because he is any better pleased with his trial 
 in the superior court than he was with his trial below, but simply because 
 the law does not give him another appeal. But he has one more chance, 
 to say nothing of the possibility of exceptions. Despite the fact that the 
 lower court has already sifted its cases and placed many of them on file 
 or on probation, the defendant now asks the superior court to sift again 
 the cases that have come up on appeal, and to file his case, or put him 
 on probation, or, at the worst, to impose some small penalty. 
 
 The system of appeals reminds one of the habit of small boys, who, 
 after trying some dispute by the toss of a coin, and losing the toss, cry 
 " Twice out of three 1 " But that simile does not tell the whole story. 
 The system is more like one of those marble games, consisting of an 
 
154 
 
 AMERICAN STATE GOVERNMENT 
 
 inclined plane with five holes, in that the government's case may drop 
 out at any of the fi\e holes, and can reach the goal of sentence and 
 punishment only by great good fortune at every hole. 
 
 Is it any wonder that lawyers tell their clients, after an adverse decision 
 or sentence in the lower court, that the sentence of the lower court is of 
 no consequence, but that everything will be made right by an appeal? 
 Is it any wonder that appeals increase, and that no one accepts a sentence 
 of imprisonment in the lower court if he can get bail ? There is a com- 
 mon idea that a poor man must accept the sentence of the lower court 
 because he cannot get bail ; though it would be a strange argument for 
 the appeal system that it compels the poor to suffer penalties that the 
 well-to-do can escape at will. But experience shows that comparatively 
 few appeals are prevented by the inability of the defendant to procure 
 bail. Where the defendant has family or other associations in the local- 
 ity, the theory of bail requires that the amount should not be very 
 large ; and it is a very destitute and unfortunate man who, with the aid 
 of his friends and professional bondsmen, and with the fee system pre- 
 vailing among bailing magistrates, cannot obtain the moderate bail 
 required in appeal cases. Some unlucky human derelict, drifting from 
 place to place, or some common drunkard without money or friends, 
 may accept a sentence to jail or to the state farm, imposed more as a 
 kindness than as a punishment ; but a sentence of imprisonment, or even 
 of a considerable fine, for a real offense against the peace and order of 
 the community is usually annulled by a prompt appeal. The main result 
 of the constant extension of the jurisdiction of the lower courts is that 
 they pretend to deal with a greater variety of matters. The only way in 
 which the lower courts can reduce the number of appeals is by constant 
 and outrageous error in favor of criminals. 
 
 Any one who supposes that this weakness of the lower courts is not 
 known to the criminal classes, even to the merely disorderly amateurs in 
 crime, very much underestimates their intelligence. If the decisions and 
 sentences of the lower courts cannot be placed upon any firmer footing, 
 it would seem much better to take away altogether their power to decide 
 and sentence, and make them merely holding magistrates, to bind 
 defendants over to some court deemed competent to determine the 
 case. The spectacle of a solemn trial, ending in a conviction and sen- 
 tence, turned into a mockery, not because of any error in the proceed- 
 ings, but merely because a party arbitrarily chooses not to abide by the 
 result, is what brings the lower courts and their authority into contempt, 
 and breeds a contempt for law in general. 
 
 I would not be understood as arguing that a defendant in a criminal 
 case, or a party in any case, should be deprived of the right to a jury 
 trial if he wishes it. But in many criminal cases the defendant would 
 as willingly try his case before a judge as before a jury ; in some cases a 
 judge would protect his legal rights much more carefully and technically 
 
THE JUDICIARY 155 
 
 than any jury. If the defendant wishes a jury trial, he ought to have 
 it, either in the court of first instance or in a higher court. But if he 
 sees fit to go to trial on the merits before a court without a jury, he 
 ought, it seems, to abide by the result, unless that result was arrived at 
 by some error of law. I am convinced that if there could be but one 
 trial of a criminal case, and that a speedy and final one, the penalties 
 now commonly imposed could be reduced considerably without any 
 injurious effect upon the peace and order of the community. There 
 seems to be no reason why a man should have two trials and more than 
 two chances in two courts in a case of simple assault, even where he 
 pleads guilty and the sentence is a small fine, while he may be impris- 
 oned for thirty years for rape or robbery by a single justice of the 
 superior court after one trial. 
 
 The appeal system in civil cases, though to my mind not such a 
 crying evil as in criminal cases, is nevertheless in great need of reform, 
 for much the same reasons. Among lawyers, however, the need of 
 reform in civil cases is more commonly recognized, for the obvious 
 reason that in civil cases the appeal system often injures their clients 
 directly, while in criminal cases it often aids their clients and injures 
 only the unrepresented and unprotected public. For forty years, at least, 
 the need of speedy and final determination of small civU cases has been 
 recognized, and various futile expedients have been tried to secure it. 
 For example, see St. 1852, Chapter 314; St. 1870, Chapter 201, Section 
 7 ; R. L., Chapter 160, Section 42 ; Chapter 203, Section 3 ; Chapter 157, 
 Section 25. Article XI of the Massachusetts Declaration of Rights says, 
 "" Every subject of the commonwealth . . . ought to obtain right and 
 justice . . . promptly and without delay." However accustomed we may 
 be to the past or present delays in our legal procedure, it must be con- 
 sidered that any delay in the settlement of civil controversies and the 
 enforcement of civil obligations, beyond a fair time for preparation and 
 trial, is not only a denial of the rights guaranteed by the constitution, 
 but also a practical injustice leading to disrespect for civil obligations and 
 for the law itself. Many eminent authorities consider that prompt hear- 
 ings with speedy and final decisions, even though occasionally wrong, 
 produce better justice on the whole than slow and wearisome appeals 
 and delays, even though the final decisions be those of an Eldon. 
 
 The number of civil appeals is very large. ^ Of course there are a 
 good many judgments obtained by default and many of these are not 
 appealed from ; but in general these are in cases where the defendant is 
 worthless, and the plaintiff is wasting his money in pursuing him. There 
 are also poor-debtor proceedings and cases of equitable process, to 
 collect a judgment already obtained in any one of the courts of the state, 
 
 IProm October 15, 1903, to October 15, 1904, out of 185 1 civil cases actually tried in the 
 municipal court of the city of Boston, 815, or more than 44 per cent, went up on appeal, — 
 an average of 68 per month, to say nothing of cases defaulted at the trial and appealed. 
 
156 AMERICAN STATE GOVERNMENT 
 
 and in such proceedings no appeal lies. In a few cases the plaintiff or 
 the defendant may be convinced that he has no case, and may be satis- 
 fied to abandon or settle the action. But a defendant who finds he has 
 no defense often appeals for spite or other reason, and claims a jury 
 trial in the superior court, merely to delay the final judgment for one or 
 two or three years, as he may do in the present state of the dockets of 
 the superior court. Coming now to the cases where there is a real con- 
 troversy, it is only in the very smallest cases that the decision of the 
 lower court is suffered to remain in force, and the theoretical jurisdiction 
 of the lower courts up to one thousand dollars dwindles in practice to 
 something nearer ten dollars. Appeals in ten-dollar cases, even, are not 
 uncommon. The number of appeals does not seem to bear any relation 
 to the confidence that the bar have in the court. The judge may be one 
 to whom the bar commonly refer superior-court cases involving thou- 
 sands of dollars as master or referee, with practically final authority ; 
 but when the judge sits in the lower court, the losing party appeals just 
 the same, not because he believes that he has not had a fair trial, but 
 because the law gives him another chance. In controverted cases the 
 trial in the lower court is only a dress rehearsal, resulting merely in the 
 disclosure of the exact evidence, — a result which, in the law of interrog- 
 atories, is deemed to be against public policy, as tending to create perjury 
 at a subsequent trial (R. L., Chapter 173, Section 63; Wigram, Discovery, 
 I St Am. ed., 263). Apart from that result, the trial in the lower court, and 
 the consideration and determination of the case by that court, is simply 
 so much wasted time and energy on the part of every one. A poor 
 man, who, after a full trial, has succeeded in winning his case in the lower 
 court, and who can ill afford the expense of witnesses and counsel for 
 another trial, can hardly be blamed for considering it the " wrong " of 
 appeal rather than the " right " of appeal, when he finds his victory 
 made fruitless, not for any error in the decision, but merely at the whim 
 of his opponent.^ 
 
 In the early days when the appeal system was created there were 
 some reasons for permitting decisions of justices of the peace to be made 
 void at the will of either party, that do not exist under our present system 
 of lower courts ; but the inertia of conservatism has hitherto prevented 
 a change in the law. In the early days the time of magistrates, lawyers, 
 parties, and witnesses was not very valuable. The higher courts were not 
 then overcrowded with the mass of business that the complexity of mod- 
 em life has since developed. Until St. 1857, Chapter 267 (R. L., Chapter 
 
 1 Many people who give the subject hasty consideration regard the system of appeals, 
 by which a suit can be brought in a justice-of-the-peace court and carried through the other 
 courts to the supreme court, as the acme of human wisdom. ... In truth, there is nothing 
 which is so detrimental to the interests of the poor man as the right which, if given to him, 
 must be given to the other and wealthier party, of carrying the litigation to the court of last 
 resort, which generally means two, three, and four years of litigation. . . Every change of 
 procedure that limits the right of appeal works for the benefit, in the end, of the poor 
 litigant. — Hon. \\'. H. Taft, in Green Bag, September, 1908. 
 
THE JUDICIARY 1 57 
 
 173, Sections 56-74) the idea of a final trial of fact without a jury in a 
 common-law action in any court was unknown, and the appeal system 
 was considered a constitutional necessity. Most of the justices of the 
 peace and some of the former justices of the lower courts were not lawyers, 
 did not know any law, and were not expected to. But these conditions have 
 changed. The justices of the peace, paid by fees, have been almost en- 
 tirely supplanted by an elaborate system of police, district, and municipal 
 courts ; and unless the decisions of these courts are to be given some 
 effect in determining litigation, the considerable sums paid by the coun- 
 ties for their maintenance are, in great part, wasted money. If a man is 
 fitted to exercise judicial functions at all, he is fitted to exercise a larger 
 measure of them than is permitted to a justice of a lower court under 
 the present law. If the lower courts, in general, are deemed unworthy 
 of any more effective jurisdiction, that affords an incontrovertible argu- 
 ment for their immediate reconstruction, but no argument at all for the 
 continuance of the appeal system. The fact is, I believe, that all the 
 justices of the lower courts at the present time are trained lawyers, and 
 many of them are lawyers of recognized ability and high standing. It 
 would surely tend still further to improve the lower courts, if presiding 
 in them were made a real exercise of the judicial function, instead of a 
 likely or even probable waste of time ; and this would be especially true 
 if provision were made for exceptions, so that a justice of a lower court 
 would act under the stimulus of responsibility for his rulings in matters 
 of law. 
 
 For the law to permit a party to have a complete trial in a small case 
 in the lower court, and then at will to wipe out the result and have a 
 second complete trial in another court before a jury, — to say nothing of 
 the fact that the second trial may take place before a single judge without 
 a jury, — seems just as wasteful and absurd as to permit an appeal in a 
 larger case from a justice of the superior court to a jury. If there were 
 any sound policy in having two trials of the same case, one would expect 
 •to find two trials possible in the most important and intricate cases. In- 
 stead of that, a party to a controversy involving a hundred thousand 
 dollars must stake his rights upon the result of a single trial, perhaps 
 before a single judge ; but he has the fortune or misfortune, as the case 
 may be, to get into the ponderous and costly machinery of an appeal and 
 two trials, at the public expense, if his case happens to involve a ten- 
 dollar grocery bill. Now that the superior court is overcrowded with 
 important cases, and its work is two or three years behind, it seems a 
 waste of public money, and an abuse of the rights of parties and of the 
 public, not to let the lower courts do the work for which they are 
 intended. 
 
158 AMERICAN STATE GOVERNMENT 
 
 POLITICS AND THE JUDICIARY' 
 By William R. Smith 
 
 Justice cannot be administered with perfection so long as human nature 
 is imperfect. The system adopted in arriving at a just conclusion when 
 personal or property rights are involved in a proceeding before our courts 
 has been built up after many centuries, and improved with the added 
 experience of lawyers, legislators, and judges who, from year to year, have 
 noted and corrected deficiencies and imperfections in the processes em- 
 plo\ed for the enforcement of rights and the redress of wrongs. We, at 
 this time, no less than those who have preceded, are employed in the 
 same work, to the end that truth may be discovered and not suppressed. 
 The efforts of any man who expects to contribute anything to the estab- 
 lishment of justice must be devoted to the sole object of securing more effi- 
 cient ways and means of determining the very truth of the case. Courts 
 exist and lawyers strive that the light of truth may illuminate the path of 
 justice ; that falsehood may be revealed, and error avoided. 
 
 Since we can only approximate to an exact ascertainment of legal 
 rights, owing to the fallibility of human nature, it is incumbent on us to 
 reduce to the lowest degree those instances where justice fails. 
 
 The judges of the country are drawn from the members of the bar. 
 The lawyer drifts easily into politics from the fact that his training fits 
 him to consider and discuss public questions, and laymen, in large part, 
 are influenced greatly by his judgment expressed in matters pertain- 
 ing to the public welfare, especially when it is affected by legislative 
 enactments or the decisions of courts. 
 
 I am not one of those who look with a sort of superstitious awe on an 
 occupant of the bench. I have never thought that the step from the 
 plane where lawyers stand to the altitude where judges sit, adds one 
 cubit to the intellectual stature of the man or ipso facto increases his 
 knowledge of the law. If he has partisan prejudices as a lawyer, their 
 sharp and cutting corners may be worn off to some extent by long judicial 
 service, but their identity is never wholly obliterated. As the twig is bent 
 at the bar, the tree is apt to be inclined on the bench. 
 
 In the trial of political causes the honest judge will strive to shake off 
 party bias and view the controversy from a purely nonpartisan stand- 
 point. ^A'hen a conclusion is reached he gives judgment with a satisfied 
 conscience, convinced in his own mind that the result came by an adher- 
 ence to strict rules of law only, uninfluenced by any predilection favor- 
 able to the party to which he belongs, or prejudices against that party 
 whose principles he combated while at the bar. If such abnegation 
 existed in fact, the ideal would be reached. 
 
 The frailty of human nature, however, is a factor in the administration 
 
 1 President's annual address before the Bar Association of Kansas, 1905. 
 
THE JUDICIARY 159 
 
 of justice which many persons do not appreciate in their reverent respect 
 for the courts. The lawyer who deals constantly with human passions, 
 prejudices, and ambitions knows that the judgment of men is influenced 
 and warped (unconsciously often) by their surroundings as well as by 
 their successes and defeats in the battle of life. 
 
 To reduce to a minimum a possible miscarriage of justice in cases 
 where political rights of parties are involved, I shall make some sugges- 
 tions which may be impracticable, but if they shall tend to render the 
 slightest service in the direction mentioned, I shall feel amply repaid for 
 my feeble efforts in that behalf. 
 
 It must be remembered that when lawsuits of a political nature come 
 before the courts, in a great majority of cases they affect the ambitions of 
 men in their aspirations for political preferment. Monetary considerations 
 arising from the compensation of the office are of secondary importance. 
 A judgment may take from a man his farm with less disappointment to 
 him than the failure to get an office which pays no more in a year than 
 the annual rental of the land he has lost. Back of the candidate stand 
 his adherents, who can see no equity in the claims of his opponent. An 
 intense feeling of hostility arises between the parties, which is manifest 
 in every stage of the proceedings. If the litigants are of opposite parties, 
 a decision resulting in the success of the one whose political faith accords 
 with those of the judge, or with a majority of the court having several 
 members, is received by the defeated party with a feeling that thp pure 
 principles of right have not been applied with that judicial indifference to 
 results with which the courts determine ordinary questions of contract or 
 of tort. 
 
 That the great Chief Justice Marshall was subject to early political 
 environment, in his professional and political life, affecting his views on 
 great constitutional questions, it would be irreverent for any of us to 
 assert. In a life of the distinguished jurist, found in the American States- 
 men Series, the writer says : 
 
 He made Federalist law in nine cases out of ten, and made it in strong, 
 stately fashion. A Republican judge, however, would have brought about a 
 ver)' different result, which, as we believe, would have been vastly less service- 
 able to the people, but of which the workmanship, in a strictly professional and 
 technical view, might have been equally correct. 
 
 Judges can never be convinced that they are not open-minded, color- 
 less, and without influencing impressions when political controversies 
 arise for determination. It must be conceded that in comparison with 
 laymen they are infinitely less subject to partisan prejudices, because legal 
 and judicial training induces conservatism and a disposition to hear both 
 sides of a question before reaching a conclusion. It is the element of 
 unconscious bias, however, with which we must reckon, for it is ever 
 present and steals upon the judgment unawares. 
 
l6o AMERICAN STATE GOVERNMENT 
 
 In the late case of Commonwealth jm". Caleb Powers, convicted of 
 participation in the killing of Go\ernor Goebel, in which, for the third 
 time, a conviction of murder in the first degree was set aside by the Ken- 
 tucky court of appeals, the highest tribunal in that state, Mr. Justice 
 Barker uses the following forcible language : 
 
 The administration of even-handed justice has no more insidious enemy than 
 political prejudice ; it enters unseen and unsuspected into the human mind, 
 corrodes the reason, and undermines the judgment ; neither purity of heart nor 
 exaltadon of character affords an antidote for this deadly poison ; indeed, these 
 virtues may well magnify the e\-il, for the mind thus possessed is all the more 
 ready to enforce the oblique judgment when it has no cause to suspect its own 
 integrity. 
 
 Richard Harris, K.C., an eminent English barrister, in a note to the 
 " Reminiscences of Sir Henry Hawkins," which he edited, says : " I have 
 studied judges all my professional life, and am certain that the less reli- 
 gious or political sentiment imparted to the bench, the better it is for the 
 interests of justice." 
 
 It is the suspicion of partisan bias more than its actual existence which 
 tends to affect public confidence in the courts. In this republic a tribunal 
 engaged in the administration of justice must both merit and possess the 
 faith of the people to sustain it in power and respect. I do not mean by 
 this that public clamor should have the slightest effect on judicial actions, 
 for courts often accomplish their best work in protecting the people 
 against themselves. 
 
 Under our Australian-ballot system the number of political cases has 
 been many times increase'd. The later reports are full of decisions re- 
 specting the preparation and counting of ballots and the rights of candi- 
 dates to have their names go before the voters. The supreme court 
 and district courts also in this state are appealed to before every general 
 election to decide controversies arising under the ballot law in which can- 
 didates for office are interested. Contests after election are not infre- 
 quent, often presenting difficult questions of fact whether an elector 
 intended to vote for one man or another. These cases are important be- 
 cause they affect the integrity of the elective system, the freedom of the 
 voter in casting a secret ballot, and government by the majority, which 
 is the foundation of our political system. 
 
 I am not making an argument in favor of the disfranchisement of 
 judges, nor do I complain of their participation in party affairs to the 
 extent of expressing their political sentiments at the polls. Beyond this 
 the individual judge must decide for himself how far he should go. I am 
 convinced, however, that most of them — in fact, a very large majority — 
 endeavor to avoid suspicion of partisanship by a modest exercise of their 
 poKtical rights, free from criticism of men and measures of opposing 
 parties, and without any unseemly display of enthusiasm in defense of 
 their own. 
 
THE JUDICIARY l6i 
 
 It is gratifying to be able to say that within my recollection of the per- 
 sonnel of the supreme court of Kansas, extending back for thirty years, 
 none of its members, with possibly one exception, and of that I am not 
 sure, has ever taken part in political campaigns by making party speeches 
 or been conspicuous in support of the principles of the party to which 
 he belonged. 
 
 As we cannot hope to secure a judiciary wholly indifferent politically, 
 would it not increase and maintain public faith in the courts if both of 
 the great parties were represented on the bench ? Does the supreme 
 court of Arkansas administer justice better because its judges are all 
 Democrats, or the supreme court of Kansas more accurately apply the 
 law because its members are all Republicans ? What lawyer inquires or 
 cares whether a Republican or Democrat wrote " Greenleaf on Evidence " 
 or " Parsons on Contracts " ? What judge takes thought of the political 
 belief of a lawyer who is making a convincing argument at the bar ? 
 
 Why exalt politics over religion in determining judicial qualifications ? 
 We choose a fanatical Baptist for the bench without question because he 
 belongs to our party, and defeat a fanatical Democrat because he does n't. 
 Is one better than the other ? 
 
 In the state of New York since 1884 the bar, supported by the people, 
 have succeeded in making political creed an indifferent consideration in 
 the choice of judges for the highest judicial tribunal, namely the court of 
 appeals. In 1884 the terms of office of Judge Rapalo, a Democrat, and 
 Judg^ Andrews, a Republican, expired. The Republican and Democratic 
 state committees agreed that both should be nominated, which was done, 
 and both elected by a nearly unanimous vote. In 1892 both political 
 parties nominated Judge Andrews for chief judge and he was elected 
 without opposition. In 1895 the constitution was amended, and it was 
 provided that whenever the judges of the court of appeals certified to 
 the necessity, the governor should designate not exceeding four justices 
 of the supreme court to sit in the court of appeals until the number of 
 pending cases was reduced to one hundred and fifty, with the provision 
 that no more than seven judges should sit in any one case. Governor 
 Roosevelt designated two Republicans and one Democrat. 
 
 In 1902 the term of Judge Gray, a Democrat, expired. The Demo- 
 crats nominated him for reelection, and the Republicans chose Judge 
 Wernor to oppose him. There was a strong feeling among members of 
 the bar that Judge Gray, having served acceptably for fifteen years, should 
 not be defeated for political reasons. The election resulted in the election 
 of Judge Gray by about ten thousand plurality, while Governor Odell, a 
 Republican, was elected by about the same majority. 
 
 In 1904, when Chief Judge Alton B. Parker resigned, after his nomi- 
 nation for President, the leading Republicans of the state thought it would 
 be unfair to take advantage of the occasion to put a member of their 
 party at the head of the court of appeals. Judge CuUen, a Democrat, 
 
1 62 AMERICAN STATE GOVERNMENT 
 
 who had served acceptably on the supreme bench and in the court of 
 appeals, was first nominated by the Republicans and then by the Demo- 
 crats for the office of chief judge, and elected without opposition by an 
 almost unanimous vote. At the same time Judge \\'ernor, a Republican, 
 was nominated for the court of appeals by both parties, and elected 
 without opposition. 
 
 Supreme-court judges have been elected generally in New York for 
 political reasons. In 1884, however, in the seventh judicial district with 
 an overwhelming Republican majority, two Democrats were elected against 
 the Republican nominees. In 1902, in the fifth district, the Republican 
 attorney-general, who was the regular nominee of his party for supreme 
 justice, was beaten by about ten thousand majority when the district, at 
 the same time, had that much Republican majority. During the adminis- 
 tration of Governor Hill, he on several occasions appointed Republicans 
 in Republican districts to fill vacancies, who were afterwards elected at 
 the polls. 
 
 In 1895, when Governor Morton was called on to designate justices 
 of the supreme court to sit in the appellate division in the second de- 
 partment, he made the court Democratic by selecting four old, experi- 
 enced Democratic justices. In 1902 Governor Odell, when he had the 
 opportunity, refused to make the appellate division of the supreme 
 court, with all its patronage, Republican. He refused to " turn down " 
 the presiding justice who had held the office for many years. 
 
 In Maine the supreme court consists of eight justices. It has been 
 the practice for many years past to have one Democrat on the bench. 
 
 In New Jersey the judges are appointed by the governor with the 
 concurrence of the Senate. In the higher courts the term of office is 
 seven years. As the politics of New Jersey vibrated forty to sixty years 
 ago from one party to the other, both parties had a representation in the 
 higher courts. From 1869 to 1895 the governors were all Democrats. 
 About thirty years ago the Democratic governors began to appoint Re- 
 publicans to the supreme court, and for many years three of the nine 
 judges were Republicans. In later years, when the Republicans had a 
 majority in the Senate, the Republican representation in the supreme 
 court was increased to four. Since the Republicans have been in power 
 it has been the uniform practice to keep the court five to four in favor 
 of the Republicans. This proportion will be continued probably indefi- 
 nitely. Judge Depue, a Republican, was reappointed four times by a 
 Democratic governor. The chancellor of New Jersey has always belonged 
 to the same party as the governor who appointed him. The chancellor 
 has the appointment of the vice chancellors, and generally they have been 
 of both political parties. 
 
 In Pennsylvania there was much partisanship shown in the election of 
 judges until the new constitution of 1874. In that constitution it was 
 provided that when two judges were to be elected to the supreme court, 
 
THE JUDICIARY 1 63 
 
 no elector should vote for more than one justice. This constitution in- 
 creased the number of judges by two, and so a Democrat and Republican 
 were elected. In 1888, when the conventions of the two political parties 
 met, there was a vacancy to be filled in the office of justice of the supreme 
 court, by the expiration of the term of office of one of its members. 
 Both parties made nominations. There was no prospect or expectation 
 that a Democrat would be elected, but before the election a justice of the 
 supreme court died, within time to have the vacancy filled by election, 
 so both the Democratic and Republican nominees were elected. In 1899, 
 by reason of death, there was a Democrat and a Republican elected at the 
 same election. In 1904 the governor of Pennsylvania appointed a Demo- 
 crat to fill the vacancy caused by the death of the chief justice of the 
 supreme court. 
 
 The supreme court of Pennsylvania is now composed of six Repub- 
 lican justices and one Democratic justice. Whenever it shall happen by 
 death or resignation hereafter that two justices are to be elected, the 
 minority can elect one member of the court. 
 
 In Delaware the judges and chancellor are appointed by the governor 
 for life. Formerly they were of the same political party as the governor, 
 but in 1897, when the new constitution was adopted, a Democratic gov- 
 ernor made the superior court to consist of three Democrats and two 
 Republicans. 
 
 In New Hampshire the supreme court was increased to seven mem- 
 bers in 1877, with the understanding that one of the justices appointed 
 should be a Democrat, which was done. When the Republican chief 
 justice died in i8g8, the Republicans complimented a Democratic justice 
 who had held office since 1877 by appointing him chief justice. He 
 held the office only about eighty days, when he reached the constitutional 
 age of retirement (seventy years). The governor then appointed another 
 Democrat as chief justice. 
 
 In 1901 the legislature proposed to change the judiciary system for 
 the purpose of having an independent supreme court whose judges 
 should not try cases in the first instance. It therefore created two new 
 courts : a supreme court consisting of a chief justice and four associates, 
 which court was to have appellate jurisdiction only ; and a superior court 
 (a court of original jurisdiction) with the same number of justices as the 
 supreme court. On the passage of this law the Republican governor re- 
 appointed the Democratic chief justice to be chief justice of the new 
 supreme court. He also appointed as associates one Republican and 
 one Democratic member of the old supreme court and two new men 
 who were Republicans. For the superior court he appointed the four 
 remaining justices of the old supreme court and one prominent Demo- 
 cratic politician. We thus see that from 1877 to 1901 the supreme 
 court of New Hampshire consisted of four Republicans and three Dem- 
 ocrats. Since April, 1901, the supreme court has consisted of three 
 
1 64 AMERICAN STATE GOVERNMENT 
 
 Republicans and two Democrats, and tlie superior court also consists 
 of three Republicans and two Democrats. In making all appointments 
 this composition of the two courts has been preserved. It may be re- 
 marked that in New Hampshire all judges, by the constitution, hold office 
 for life or until seventy years of age. In Vermont the judges, generally 
 speaking, have belonged to the dominant political party. They are now 
 chosen biennially by the legislature. There are a few exceptions to this, 
 however. Isaac S. Redfield, a Democrat, was elected chief justice or 
 assistant judge for twenty-five years, from 1835 to i860. At his last 
 election there was but one vote against him. He is said to have declared 
 that if there was one member of the Vermont legislature who thought he 
 was unfit for the office of chief justice, he did not wish to be chief justice 
 any longer. Of late years the court has been unanimously Republican. 
 
 In Indiana the party that has carried the state has always elected the 
 justice of the supreme court of that party. In 1893, when a Democratic 
 legislature created an appellate court of five members, the Republican 
 governor appointed two Democrats as members of this court. For the 
 last eight years the supreme court and the appellate court have been 
 unanimously Republican. 
 
 In the early history of Illinois judges were appointed by the governor 
 and belonged to his party. In 1842 the legislature abolished the supreme 
 court, and a new court composed entirely of Democrats was appointed. 
 The constitution of 1848 created a supreme court composed of three 
 justices, to be elected by districts. The Democrats controlled the court 
 unanimously until 1864, when Judge Lawrence, a Republican, was 
 elected. The new constitution of 1870 increased the court to seven 
 members. At the election held for judges under this constitution two 
 Republicans were elected. The court consisted of four Democrats and 
 three Republicans. In the Chicago district, which was Republican, the 
 Republican president of the constitutional convention was defeated by a 
 Democrat as judge of the supreme court. Although the Republicans had 
 elected the governor of the state for thirty-si.\ years, during nearly all 
 that time the Democrats had a majority of the justices of the supreme 
 court. In 1888, however, the Republicans obtained a majority. 
 
 In 1873 the Chicago newspapers defeated Judge Lawrence for reelec- 
 tion because he had fined a Chicago newspaper publisher for contempt 
 for criticizing the court for delay in trying Chicago murder cases pending 
 before it. Judge Lawrence's successor, a Democrat, was twice reelected 
 in a strongly Republican district. The Republican member from the 
 Chicago district was reelected without opposition. The court now con- 
 sists of four Republicans and three Democrats. 
 
 Up to 1877 the supreme court of Wisconsin was elected on party 
 lines. In 1874, at the time of the railroad excitement, Edward G. Ryan 
 was elected chief justice. He was a very able man and a strong Demo- 
 crat. He defeated Chief Justice Luther S. Dixon, who had then been 
 
THE JUDICIARY 1 65 
 
 justice fifteen years and was regarded as one of the ablest judges in the 
 West. In 1877 a constitutional amendment was adopted increasing the 
 number of justices from three to five. In the election in April, 1878, 
 David Taylor, a Republican, and Harlow S. Orton, a Democrat, were 
 elected as the new justices. This seems to have been agreed on by both 
 parties. On the death of Chief Justice Ryan in 1880 a Republican was 
 elected. In April, 1891, David Taylor died and the Democratic governor 
 appointed John B. Winslow, a Democrat, to fill the vacancy. He was 
 elected by the people, and in 1895 was reelected by a majority of nine 
 thousand over his Republican opponent. In 1893 Silas U. Pinney was 
 appointed by a Democratic governor to fill a vacancy. This made the 
 court consist of three Democrats and two Republicans. On the death of 
 Chief Justice Orton in 1895 the governor appointed Roujet D. Martin, a 
 Republican, to fill the vacancy. Then the court consisted of three Repub- 
 licans and two Democrats. Justice Pinney resigned in 1898, and a 
 Republican governor appointed Joshua E. Dodge to fill the vacancy. 
 Dodge was a Democrat and was elected by the people. Since 1895 the 
 court has consisted of three Republicans and two Democrats. The practice 
 seems now to be fixed and settled that the majority party shall have three 
 members of the court, the other two being conceded to the minority. 
 
 Although Minnesota is a Republican state, the Democrats for the last 
 twelve or fifteen years have had one or more members in the court. 
 
 In the Southern States the supreme courts are composed of Demo- 
 crats. There is one Republican member of the highest court in each of 
 the states of Maryland, North Carolina, Kentucky, and Missouri. 
 
 In a letter written recently by a lawyer in Davenport, Iowa, he states 
 the method adopted in one of the judicial districts of that state for the 
 selection of judges. It is relevant to the purpose of this paper. He says : 
 
 Years ago Judge John F. Dillon, now of New York City, began his judicial 
 career by an election to the office of district judge here in Davenport. He was 
 so successful and able that when his term expired the members of the bar of 
 this district, regardless of politics, indorsed him for reelection, and I think no 
 candidate was nominated against him, and, further, that Judge Dillon was a 
 Republican in a then strong Democratic district. Now the above all occurred so 
 many years ago it is legendary ; but, nevertheless, from that beginning and from 
 that time the seventh judicial district of Iowa has always had a " nonpartisan " 
 judiciary. The lawyers of each county in the district meet in convention to 
 elect delegates to a District Bar Convention. This latter nominates the candi- 
 dates, and the political parties either indorse the nomination or else pass them. 
 When a vacancy occurs, the bar, in the same manner, suggests to the governor 
 the successor, and so far that official has always appointed the choice of the bar. 
 
 A district chairman and secretary and committee is chosen, as is done by the 
 political parties. Only those licensed to practice law are entitled to vote in the 
 conventions. 
 
 We have four judges now, — three Republicans and one Democrat. For years 
 we had three Democrats and one Republican. Formerly we had only one judge. 
 
1 66 AMERICAN STATE GOVERNMENT 
 
 For years the district was Republican, with a Democrat judge, and then for 
 years it was the other way. Along in 1887 or 1888 the Democrat vote was six 
 thousand or eight thousand above the Republican vote, and the former party 
 made nominations against the nonpartisan candidates. But the latter were 
 elected. This is the first and last time it has been tried. 
 
 As to the manner of selection, convention, and procedure at present, what I 
 have stated I know, of course, to be true. But as to the history of the custom, 
 all I know is it began long before my day, and I think with Judge Dillon, as I 
 have stated. 
 
 The Presidents of the United States have generally appointed mem- 
 bers of their own party to the federal bench. In 1801 the Federalists 
 abolished the judiciary system of the United States as it had existed, and 
 established circuit courts in each of the districts, with three judges for 
 each circuit. President Adams at the closing hours of his administration 
 filled all these places with Federalists. These are known as the "" Mid- 
 night" judges. This act was repealed in 1803, and Jefferson appointed 
 members of his own party to the bench. In 1863 President Lincoln 
 appointed Stephen J. Field of California to the supreme bench, who was 
 not a Republican, but known as a Union Democrat. In 1891 President 
 Harrison appointed Judge Jackson, a Democrat, as justice of the Supreme 
 Court. In 1 89 1, when the Circuit Court of Appeals was created. Presi- 
 dent Harrison appointed two Democrats, one for the first and the other 
 for the third circuit, out of the nine circuit judges. President McKinley 
 appointed Judge Severans of Michigan, a Democrat, as circuit judge for 
 the si.xth circuit. He also appointed George Gray of Delaware as an addi- 
 tional circuit judge for the third circuit. This last appointment was per- 
 haps made in recognition of Judge Gray's services on the Peace Commis- 
 sion that made the treaty with Spain at the close of the Spanish War. 
 President Roosevelt appointed ex-Governor Jones, a leading Democratic 
 politician of Alabama, as United States district judge for the districts of 
 Alabama. The Supreme Court of the United States now consists of six 
 Republicans and three Democrats. Out of the twenty-seven circuit 
 judges eight are Democrats, and four of these were appointed by Repub- 
 lican presidents. More than three quarters of the judges of the United 
 States District Court are Republicans. All the other judges of the fed- 
 eral courts are Republicans with the exception of one member of the 
 Court of Claims. 
 
 The following states have a bipartisan judiciary as near as courts 
 composed of odd numbers will admit : 
 
 New Hampshire . 3 Republicans and 2 Democrats in each court 
 
 Connecticut . 3 Republicans and 2 Democrats in each court 
 
 New York . . 4 Republicans and 3 Democrats in each court 
 
 New Jersey . 5 Republicans and 4 Democrats in each court 
 
 Delaware 2 Republicans and 3 Democrats in each court 
 
 Illinois . 4 Republicans and 3 Democrats in each court 
 
 Wisconsin 3 Republicans and 2 Democrats in each court 
 
THE JUDICIARY 167 
 
 In Connecticut the two Democratic members of the supreme court 
 have been reappointed by a Republican governor and legislature. 
 
 The professional politician who thinks that the chief end of a man is 
 to get jobs for his friends and scalps from his enemies will render no 
 assistance toward securing a division of political sentiment on the bench 
 until forced to it by public demand. It is for the bar to create this demand. 
 
 I am fully aware that what I have said constitutes political treason, 
 committed in the presence of more than two witnesses to the overt act. 
 A revolutionary movement, however, when successful becomes patriotic, 
 and when the reforms suggested are wrought out, the cause of justice 
 will applaud its benefactors. In Kansas change from the political method 
 of nominating and electing judges who are adherents of the dominant 
 party is probably a long way off. 
 
 It is more difficult in a farming state for the bar to influence the gen- 
 eral public than in commercial communities, where the lawyer has closer 
 association with the people, and is oftener called on to serve them in 
 matters of importance. The farmer generally thinks that the lawyer's 
 compensation is disproportioned to the work done, measured from the 
 standpoint of what he and his employees earn. These considerations 
 make any reform in the respect discussed, through the efforts of the bar, 
 extremely problematical in this state. That the result is hard of accom- 
 plishment does not, however, detract from its merit. 
 
 In the mechanism of clocks loss of time caused by the increased 
 length of the pendulum in summer, due to the expanse of metals by 
 heat, and a corresponding gain in winter by the contraction of cold, are 
 counteracted by the use of a tube of mercury fastened to the lower part 
 of the pendulum, which, by expansion under heat, is lengthened and 
 transmitted to the top. By cold it is shortened, and thus the effect of 
 heat or the absence of it is balanced and destroyed. This appliance cor- 
 rects a defect scarcely appreciable and neutralizes surrounding influences 
 which tend to inaccuracy in the recording of time. 
 
 Would it not strengthen the public confidence in the judiciary if there 
 was a compensating membership in courts of last resort, opposed in 
 numbers as nearly as practicable to those of a different political belief, 
 to the end that in cases of a political nature the scales of justice might 
 hang equally poised, not to be disturbed in their equilibrium by any ^ 
 unseen or unconscious force ? 
 
1 68 AMERICAN STATE GOVERNMENT 
 
 CLAIMS AGAINST THE STATE ^ 
 By Simon Fleischmann 
 
 This review of the entire situation will show that the attitude of the 
 national and state go\ernments and of political subdivisions and munici- 
 palities thereof, in meeting their obligations to private citizens, is still in 
 discreditable shape. The United States government has no tribunal to 
 which suitors can resort for redress in case they are injured by the tor- 
 tuous acts of the government or its agents. Two thirds of the states 
 have no courts or tribunals, whatsoever, for the enforcement of claims, 
 either on contract or in tort. Municipal corporations, generally, are not 
 liable for the wrongful acts of their officers, employees, or servants, when 
 engaged in what is, with somewhat ambiguous comprehensiveness, 
 known as the performance of governmental functions. In states which 
 have established courts of claims and have conferred jurisdiction upon 
 them in general terms, it will probably be held, as a rule, that the states 
 are not liable for injuries inflicted by their officers or agents while en- 
 gaged in the performance of governmental functions. The national 
 government and some states have established courts for the trial of 
 claims against the government, arising on contract ; and a very few, for 
 demands growing out of torts, when not committed in the exercise of 
 governmental functions. 
 
 The state of New York has gone as far as, and perhaps further 
 than, any other state in opening the portals of its court of claims to 
 suitors having claims either on contract or in tort, though the highest 
 court of this state has not yet passed upon the question whether this 
 jurisdiction extends to torts connected with the exercise of governmental 
 functions. However, the people of the Empire State may feel just pride 
 in the consciousness that they are in the lead in forcing this current of 
 the law out of the whirlpool and into the wholesome and moving stream 
 of the law's progress. 
 
 It is claimed and believed by many that if the courts are thrown 
 open to suitors having claims against the state, the amounts awarded 
 will be much larger than if the disposition thereof be left to the legisla- 
 ture. When we consider, however, the influences brought to bear upon 
 legislators, it is far more likely that, while there will probably be fewer 
 claims in number presented to legislatures than to courts, the aggre- 
 gate amount awarded will doubtless be far less through the halls of 
 justice than through legislative lobbies. The experience in the court of 
 claims of the state of New York confirms this contention. In the re- 
 port of the attorney-general of New "\'ork, for 1909, gratifying results 
 appear. Over four hundred claims were disposed of, the amounts claimed 
 
 1 From a paper before the New York .State Bar Association, 1910. Reproduced by 
 permission. 
 
THE JUDICIARY 169 
 
 aggregating $4,777,000 ; whereas the judgments recovered were only 
 about $643,000, or about 13 per cent of the amount claimed. This, total 
 of judgments recovered was, in itself, exceptionally large, owing to the 
 fact that it included many heavy claims growing out of the construction 
 of the new Barge Canal, the number of such claims alone being seventy- 
 nine and representing an aggregate claimed of $4,247,000, upon which 
 judgments were rendered for a little more than $400,000, which was a 
 part of the total of $643,000, for which judgments were awarded. 
 Among the claims so allowed, were several arising from injuries received 
 by the breaking of the rope on the inclined railway at Niagara Falls in 
 July, 1907, for all of which $105,000 was demanded and $15,637 
 awarded. With the completion of the Barge Canal the exceptional 
 claims for consequential damages, the disturbance of old water-power 
 rights, and the like will disappear, and the amounts awarded in the gen- 
 eral run of claims against the state will be comparatively small. During 
 the year it further appears that eighty-nine claims, in which the total 
 amount demanded was $394,109, were dismissed without any award. 
 The virtue of the tribunal and its procedure, however, lay in the fact 
 that every suitor had his day in court, with reasonable promptness, and 
 his claim had legal, capable, and impartial investigation, with the right to 
 the defeated party to appeal to the highest court of the state, and the 
 certainty of receiving payment for such amount as the courts should 
 finally allow. Above all, the Empire State thus sets the worthy example 
 of reposing the same confidence in its own courts as it demands of its 
 citizens and inhabitants ; and when it shall, by statute, have enlarged its 
 liability and that of its political subdivisions and municipalities to that of 
 all persons and private corporations within its jurisdiction, it will have 
 reached that goal of legal advancement for which it and all other 
 commonwealths and communities should strive. 
 
 Having in mind, at all times, that a sovereign state insists on just 
 dealings between its citizens in meeting their obligations to one another 
 and to itself, upon what justifiable theory can the state itself refuse to 
 do the same justice it requires of, and with the same instrumentalities it 
 furnishes to, others ? It will not do to say that a state cannot be sued 
 without its consent. This must be so from the fact that governmental 
 and judicial authority ultimately rests in the sovereign power. But it is 
 no truer as applied to the state itself than as regards its citizens ; for 
 private parties cannot sue each other without the consent of the state, 
 and the creation by it of courts for the adjustment of such controversies. 
 
 The allowance of disputed claims is a judicial function and should be 
 assigned to judicial and not to legislative bodies. It is obvious, indeed, 
 that the intrigue, favoritism, and lobbying inevitably connected with the 
 allowance of claims by a legislature constitute most demoralizing influ- 
 ences and should be avoided on the plainest and highest principles of 
 public policy. They have always been the source of political scandal, 
 
lyo AMERICAN STATE GOVERNMENT 
 
 wherever allowed or practiced. So the example of the state refusing to 
 meet its own obligations cheerfully, promptly, and adequately must 
 afford a most unwholesome example to the whole community and serve 
 as a pretext for personal dishonesty. 
 
 The court of appeals of New York, in an early case, was urged to 
 exempt municipalities from liability in all cases, whether exercising gov- 
 ernmental or private functions, upon the ground that they must employ 
 agents to discharge the duties imposed upon them by law. The court, 
 in denying such sweeping immunity, used the following forcible language, 
 alike applicable to the allowance of claims by any legislative body : 
 
 As a corporation can only act by agents, such a rule of action would exempt 
 it from legal liability in every case, whatever might be the circumstances ; the 
 natural and certain consequences of which would be innumerable applications 
 to the common council for redress, legislatively, and which would bring in their 
 train an organized body of soliciting parties and agents, the allowance some- 
 times of extravagant and unjust claims, the rejection, at other times, of meri- 
 torious ones, — in a word, all the evils attending a legislative body having 
 control over large funds, and exposed to the solicitations and devices of a 
 corps of artful and unscrupulous claimants and their hired or interested agents. 
 Where the city now pays, in accordance with just legal principles, hundreds 
 of dollars, it would probably then pay thousands, besides having in the halls 
 of its local legislature scenes of a most forbidding character (Lloyd vs. City, 
 5 N.Y. 369, 375). 
 
 The nation, the state, the county, and the city should be placed by 
 legislative or constitutional enactment upon precisely the same basis as 
 is every individual and private corporation. There should be no distinc- 
 tion or quibbling as to the difference between governmental or other 
 functions. The state or municipal corporation can, from its very nature, 
 act only through officers and other agents ; and where it injures a private 
 person through some act of commission or omission, which would give 
 a cause of action against a private person or private corporation, the 
 state or municipality immediately employing such agent should respond 
 in damages, or afford other appropriate legal or equitable relief, under 
 an enforceable judgment or decree of a judicial tribunal. The state will 
 have ample protection and fairness of treatment in courts of its own 
 creation. 
 
 It seems to me, further, that no special courts of claims or other 
 special tribunals should be created at all for the enforcement of private 
 claims against the state, but that this jurisdiction should be conferred 
 upon the existing courts of record of each state, which are deemed suffi- 
 cient for controversies, unlimited in amount or consequence, between 
 citizens or private corporations. The state, in other words, as a whole, 
 should show the same confidence in its own courts as it asks other 
 suitors to repose in them. The jurisdiction of the federal courts in 
 suits by citizens of one state against another state as such, contemplated 
 
THE JUDICIARY 171 
 
 by the original federal Constitution, before the eleventh amendment 
 was adopted, should be restored, to render this jurisdiction harmonious, 
 complete, and efficient, and to make it impossible for a state to repudiate 
 its debts to any one. Should the state or city desire to protect itself 
 against actionable wrongs to which its officers and agents may subject 
 it, let it take bonds of indemnity from them, as it does for many pur- 
 poses. But the injured party should have a right to look to the principal 
 in the transaction, precisely the same as in the case of injury done by 
 the agent of a private person or corporation. 
 
 The time will come when states will do full justice, for instance, to 
 those whom it may have imprisoned and whose innocence shall after- 
 wards be established, by public proclamation and pecuniary compensa- 
 tion, just as it compels private individuals to respond in damages in 
 cases of false imprisonment. As illustrating the injustice of the law in 
 this regard, a telegram to the country at large, only a few days ago, 
 announced that a prisoner in a near-by state had just been released, 
 although the indictment under which he had been confined had been 
 dismissed three months before his actual discharge, the incident of his 
 imprisonment having been overlooked by the district attorney. 
 
 So the law should be comprehensively amended to correct the great 
 injustice now generally existing, under which citizens who suffer acute 
 and substantial so-called consequential damages, from the establishment 
 of public improvements in public streets and places, may not be left 
 wholly without remedy, as they are in many instances. In one such 
 case, in which relief was denied. Judge Gray, of the court of appeals 
 of the state of New York, properly sqid : 
 
 In this connection I may say that for such consequential damages as are 
 sought to be recovered here from a railroad company, which is lawfully in the 
 occupation and use of a street, but which, incidentally, is the occasion of injury 
 to property owners in an adjoining street, by reason of its performance of the 
 statutory duty to conform its grade to the new use, the legislature might very 
 properly, under limitations, grant a remedy. Without such remedial legislation, 
 however, the case is one of damnum absque injuria (Rauenstein vs. N. Y., 
 L. & W. R. Co., 136 N. Y. 528). 
 
 While I appreciate that situations arise in which the financial limita- 
 tions of a community may make it necessary to prescribe limits, geo- 
 graphical or otherwise, beyond which remote or consequential injury to 
 property rights, resulting from public improvements or necessities, can- 
 not be paid or adequately compensated, there can never be any justifi- 
 cation for repudiating debts or obligations which have been incurred or 
 responsibility for acute injuries inflicted; and in no event should the 
 doctrine of the limitation of public liability for damage or harm done, 
 be restricted beyond absolute and imperative necessity. In other words, 
 all of the people of a state or community should not, because of their 
 consolidated interests, profit at the expense of any one member or citizen 
 
172 AMERICAN STATE GOVERNMENT 
 
 thereof, as they do, when they refuse to meet their aggregate obli- 
 gations to any one of their number. In the (Rauenstein) case above 
 cited, the court, in referring to a prior decision, where damages had 
 been allowed under a different state of facts, voiced this sentiment in 
 the following words : 
 
 The reasoning of the decision was that, while it was quite probable that 
 the general interests of Buffalo and of the public were promoted by the appro- 
 priation of the street, it by no means followed that a lot owner, whose property 
 is injured, should bear the loss for the public benefit. 
 
 No government can afford to be other than scrupulously just in its 
 dealings with other states, as well as with individuals and private corpo- 
 rations. If honesty is the best policy for individuals, it is quite as much 
 so for communities in their official entity. A state must, above all things, 
 be sound at the core, and must realize that honesty, like charity, begins 
 at home. It is amazing and discouraging to contemplate how slowly the 
 appreciation of these truths is making progress, especially in view of 
 the advance that has been made in other directions. It appears to be a 
 problem, the solution of which, from its wide scope and lack of frequent 
 and acute application, has, so to speak, gone by default. Of course 
 demagoguery and cheap rhetoric about protecting taxpayers against un- 
 just claims have played, and will continue to play, their part in retarding 
 progress. But right will eventually prevail in the nation, not only as a 
 whole, but down to its smallest political subdivision, and the maxim, 
 " The king can do no wrong," especially inapplicable in a government 
 having no ruler except the people in their own sovereignty, will gradu- 
 ally give way to the nobler precept, " There is no wrong without a 
 remedy." 
 
IV 
 
 THE CRIMINAL LAW 
 
 DELAYS AND DEFECTS IN THE ENFORCEMENT OF 
 LAW IN THIS COUNTRY! 
 
 By William H. Taft 
 
 If one were to be asked in what respect we had fallen farthest short of 
 ideal conditions in our whole government, I think he would be justified 
 in answering, in spite of the glaring defects in our system of municipal 
 government, that it is in our failure to secure expedition and thorough- 
 ness in the enforcement of public and private rights in our courts. I do 
 not mean to say that the judges of the courts are lacking in either 
 honesty, industry, or knowledge of the law, but I do mean to say that 
 the machinery of which they are a part is so cumbersome and slow and 
 expensive for the litigants — public and private — that the whole judicial 
 branch of the government fails in a marked way to accomplish certain 
 of the purposes for which it was created. 
 
 Generally in every system of courts there are a court of first instance, 
 an intermediate court of appeals, and a court of last resort. The court 
 of first instance and the intermediate appellate court should be for the 
 purpose of finally disposing, in a just and prompt way, of all controversies 
 between litigants. So far as the litigant is concerned, one appeal is all 
 that he should be entitled to ; the community at large is not interested 
 in his having more ; for the function of the court of last resort, usually 
 called the supreme court, is not primarily for the purpose of securing a 
 second review or appeal to the particular litigant whose case is carried 
 to that court. It is true that the court can only act in concrete cases 
 between the litigants, and so incidentally it does furnish another review 
 to the litigants in every case where it entertains an appeal ; but the chief 
 reason for granting such a review is to enable the supreme court to lay 
 down general principles of law in the interpretation of state or federal 
 constitutions or statutes, or in the application of the common law, for 
 the benefit and guidance not of the particular litigant affected but of 
 the communities at large. Therefore the appellate jurisdiction of the 
 
 1 An address delivered before the Civic Forum, New York City, at Carnegie Hall, 
 April 28, igo8. 
 
174 
 
 AMERICAN STATE GOVERNMENT 
 
 supreme court should generally be limited to those cases which are 
 typical, and which give an opportunity to the court to cover the whole 
 field of the law upon the subject involved. The highest function of the 
 Supreme Court of the United States is the interpretation of the Consti- 
 tution of the United States, so as to guide the other branches of the 
 government and the people of the United States in their construction of 
 the fundamental compact of the Union. Take it all in all, in the discharge 
 of this function the judicial department is the most novel, as it is in 
 many respects the most important, branch of the government. It is the 
 background of the whole government. In its power of ultimate decision 
 as to the respective jurisdictions of the various departments of the national 
 government, as to the boundaries between state and national control, and 
 as to the guarantees of life, liberty, and property to the individual, it is 
 the balance wheel of the governmental system. The supreme courts 
 of the states exercise a similar, but of course a less important, function 
 within their respective states. It is to be presumed that the supreme 
 courts, in the course of their decisions on general law, will lay down with 
 reasonable accuracy principles with sufficient clearness to enable the 
 inferior courts to dispose of cases involving similar principles. The great 
 body of the litigation involving particular controversies between indi- 
 viduals should be confined to the courts of first instance and the inter- 
 mediate appellate courts, and one appeal is all that any litigant should 
 be entitled to. 
 
 In the Supreme Courts of the United States and of the several states 
 business is disposed of with as great promptness as is consistent with 
 the proper exercise of their important jurisdiction. It is in the courts of 
 the first instance and in the intermediate appellate courts, however, that 
 there is much more delay than is necessary. In the first place, the codes 
 of procedure are much too elaborate. It is possible that they should be 
 both simple and effective, as is shown by the present procedure in the 
 English courts framed by rules of court. The code of the state of New 
 York, however, is staggering in the number of its sections. A similar 
 defect exists in some civil-law countries. The elaborate Spanish code of 
 procedure that we found in the Philippines could be used by a dilatory 
 defendant to keep the plaintiff stamping in the vestibule of justice until 
 time had made justice impossible. Every additional technicality, every 
 additional rule of procedure, adds to the expense of litigation ; and it is 
 inevitable that with an elaborate code the expense of a suit involving a 
 small sum is in proportion far greater than that involving a large sum. 
 Hence it results that the cost of justice to the poor is always greater 
 than it is to the rich, assuming, as we reasonably may, that the poor are 
 more often interested in small cases and the rich in large ones. 
 
 Jury trials also add to the elaborate machinery necessary for the ad- 
 justment and decision of the rights of the litigants, and they greatly 
 increase the time and expense involved in the disposition of litigation. 
 
THE CRIMINAL LAW 
 
 175 
 
 Another reason for unreasonable delay in the lower courts is the 
 disposition of judges to wait an undue length of time in the writing 
 of their opinions or judgments. I speak with confidence on this point, 
 for I have sinned myself. In English courts the ordinary practice is for 
 the judge to deliver his opinion immediately upon the close of the argu- 
 ment, and this is the practice which ought to be enforced so far as pos- 
 sible in our courts of first instance. It is a great deal more important 
 that the court of first instance should decide promptly than that it should 
 decide right. The practice of deciding cases at the close of the hearing 
 makes the judge very much more attentive to the oral argument of 
 counsel, and much more likely, on the whole, to decide right when the 
 evidence and the arguments are fresh in his mind. In the Philippines 
 the system had been adopted of refusing a judge his regular monthly 
 stipend unless he can file a certificate, with the receipt for the money, in 
 which he certifies on honor that he has disposed of all the business sub- 
 mitted to him within the previous sixty days. This has had a marvelously 
 good effect in keeping the dockets of the court clear. 
 
 One of the great difficulties with the profession of the law is the dis- 
 position both of judges and of advocates to treat the litigants as made 
 for the courts and the lawyers, and not the courts and lawyers as made 
 for the litigants. And as it is lawyers who, in judiciary committees of 
 the legislatures, draft the codes of procedure, it too frequently happens 
 that the motive for simplifying the procedure and making the final dis- 
 position of cases as short as possible is not as strong as it should be. In 
 the end such simplification would be greatly in the interest of the lawyers, 
 for the present conditions of delay in the courts lead many people to 
 arbitrate their case out of court or to yield to unjust claims rather than 
 to expose themselves to the nervous strain and expensive burden of a 
 long-drawn-out contest in court. 
 
 In my opinion the best method of securing expedition in the disposition 
 of cases is to leave to the judges of the court the forming of the pro- 
 cedure by rules of court, imposing upon them the obligation to adopt 
 rules making the course of litigation as speedy and as inexpensive as 
 possible. I venture to think that the plan by which the justices of the 
 peace who try smaller cases, and who are neither professional men nor 
 apt in the disposition of business, is not a wise feature of the present 
 system. The poor should have the benefit of as acute and able judges 
 as the rich, and the money saved in the smaller salaries of the judges of 
 the inferior courts is not an economy in the interest of the public. Such 
 judges, after their reputations have become established, would lead the 
 parties seeking their jurisdiction to dispense with juries and to submit 
 their controversies for immediate decision. Under able, educated judges, 
 who understand the purpose of the law in creating them, I am quite 
 sure that courts of conciliation, for the purpose of settling small contro- 
 versies without pleading, without lawyers, and without appeals, could be 
 
176 AMERICAN STATE GOVERNMENT 
 
 made successful. They have been made successful in Germany, and I 
 do not see that there is such a difference of conditions in this country as 
 to prevent their being useful here. 
 
 It may be asserted as a general proposition, to which many legislatures 
 seem to be oblivious, that everything which tends to prolong or delay 
 litigation between individuals, or between individuals and corporations, 
 is a great advantage for that litigant who has the longer purse. The 
 wealthy defendant can almost always secure a compromise or a yielding 
 of lawful rights on account of the necessities of the poor plaintiff. While 
 such a condition in the administration of human law cannot be entirely 
 eradicated, its injurious effect may be minimized by speeding the litigation 
 and reducing the opportunities of either litigant to prolong it. 
 
 Many people who give the subject hasty consideration regard as the 
 noblest product of human wisdom a system of appeals by which a suit 
 can be brought before a justice of the peace and carried through the 
 several intermediate courts of appeal to the supreme court of the state. 
 How many legislative halls have rung with the eloquence of defenders 
 of the oppressed and the poor, in opposing laws which were designed to 
 limit the appeals to the supreme court to cases involving large sums of 
 money or questions of constitutional or other important law I Shall the 
 poor man be denied the opportunity to have his case reexamined in the 
 highest tribunal of the land ? Never I And generally the argument has 
 been successful. In truth, there is nothing which is so detrimental to 
 the interests of the poor man as the right which, if given to him, must 
 also be given to the other and wealthier party. It means generally two, 
 three, and four, and in some cases even five and six, years of litigation. 
 Could any greater opportunity be put in the hands of wealthy persons 
 or corporations to fight off just claims and to defeat, injure, or modify 
 the legal rights of poor litigants, than to delay them in securing their 
 just due for several years ? I think not. The fact is that procedure which 
 hmits the right of appeal works in the end for the benefit of the poor 
 litigant and puts him more on an equality with a wealthy opponent. 
 While it is probably true that the disposition of the litigation is more 
 likely to be just when three tribunals have passed upon it, the injustice 
 which meantime has been done by the delay to the party originally en- 
 titied to the judgment, generally exceeds the advantage that he has had 
 in ultimately winning the case. So confirmed have we become in our 
 views that delays are essential in Utigation, that, in the minds of many 
 lawyers and other persons familiar with the courts, the right of a litigant 
 to delay before being called upon to respond in damages, or in other 
 ways, to the just claim of another, is supposed to inhere either in the 
 constitution of the state or in the orderly administration of courts. To 
 hasten a litigation to an end within six months against the protesting 
 defendant who is mulcted and compelled to pay within that short period, 
 is even characterized as " railroading." 
 
THE CRIMINAL LAW 1 77 
 
 There is no foundation in the attitude of the courts for the complaint 
 that the courts are made for the rich and not for the poor ; for the judges 
 of this country are as free as possible from prejudice of that kind. But 
 the inevitable effect of the delays I have referred to is to oppress and 
 put at a disadvantage the poor litigant ; and while I do not mean to say 
 that it is possible, humanly speaking, to put the rich and the poor on an 
 exact equality in regard to litigation, it certainly is possible to reduce 
 greatly the disadvantages to the man of little means if the courts and 
 legislatures would devote themselves to the elimination from the present 
 system of those provisions which tend to prolong the time in which 
 judicial controversies are disposed of. 
 
 When we come to the administration of criminal law and the assertion 
 of public right, which have a more direct bearing upon the welfare of the 
 whole people than the settlement of private rights, the injurious delays 
 caused by the procedure provided by legislative act are greatly accen- 
 tuated. No one can examine the statistics of crime in this country and 
 consider the relatively small number of prosecutions which have been 
 successful, without realizing that the administration of the criminal law 
 is a disgrace to our civilization. Some of the causes for the lax adminis- 
 tration of the criminal law may be found in the lenient, happy-go-lucky 
 character of the American people, absorbed in their own affairs and not 
 fully realizing that this tremendous evil exists in the community. 
 
 In criminal cases the jury system is essential to secure the rights of 
 the individual against possible abuses by the government ; but it neces- 
 sarily causes delay. The grand-jury system enforced by the federal 
 Constitution, although not required in many of the states, is another 
 cause of delay in bringing criminals to justice. Fully conceding the neces- 
 sity of these constitutional restrictions as essential under our form of 
 government to the preservation of the liberty of the individual, we still 
 find a large field in which the legislature, by formulating proper and ex- 
 peditious criminal procedure, could avoid the discouraging and disgraceful 
 delays that now exist, when the criminal has the means to employ acute 
 lawyers who take advantage of every technical necessity presented by 
 the rules obtaining in the trial of criminal causes. Every month of delay 
 in bringing a person charged with crime to justice inures, in his ultimate 
 trial, to his benefit. In order to resist the amiable tendency of human 
 nature toward mercy and compassion for the unfortunate charged with 
 crime, a jury must be strongly imbued with the right of the public to 
 have crime punished, and the further backward into the past the facts 
 upon which the prosecution is based are pursued, the less strongly does 
 the jury feel its obligation to the public at large to restrain future crime 
 by the punishment of offenses committed in the distant past. 
 
 Again, the procedure provided by legislative enactment for the trial 
 of the crime itself too frequently affords the opportunity to prolong the 
 trial, and exaggerates into undue prominence circumstances having no 
 
ijS AMERICAN STATE GOVERNMENT 
 
 direct bearing upon the innocence or guilt of the defendant, but calcu- 
 lated to divert the minds of the jury from the real issues, and ultimately 
 to lead to a disagreement or to an acquittal of a really guilty man. Of 
 course such a result could hardly be obtained except by the employment 
 of skilled counsel of dramatic power, able to confuse the minds of the 
 jury, to destroy their sense of proportion, and to make them reach con- 
 clusions as jurymen which, as men in their own business, they would 
 repudiate as absurd. The creation of an atmosphere of fog and error 
 and confusion is only possible under a system in which the power of the 
 court to control its own proceedings and to guide the jury to some extent 
 in the way in which it should go, is so limited by rules of judicial proce- 
 dure laid down by legislative enactment that the judge becomes nothing 
 but a moderator of the proceedings and helpless in the hands of an acute 
 and eloquent counsel for the defense. The theory of legislatures in this 
 country and, indeed, the popular view, seems to be that it somehow 
 works for the benefit of the public that the power of the judge in the 
 courtroom should be greatly reduced and the power of the jury greatly 
 magnified ; and we discover the tendency to this view more and more as 
 we go toward the western and the newer states. The fact is, however, 
 that every expedient which weakens the power of the court and increases 
 the power of the jury has an effect wholly different from that which is 
 intended, and increases the advantage enjoyed by the wealthy when 
 brought before the bar of a criminal court. 
 
 No legislature can legally take away from the jury in this country its 
 power to do what it believes to be right under the instructions of law 
 received from the court. The power of the court to comment on the 
 evidence, to point out its strength or its weakness, can never take from 
 the jury its authority to decide upon the facts. The restoration, there- 
 fore, of the procedure which obtained at the common law and which still 
 obtains in England, in the courts of the United States and in some state 
 courts, by which the verdict rendered is the result of the independent 
 judgment of the jury guided both by instructions by the court as to the 
 law and also by suggestions and comments as to the facts, could work 
 no injustice to any person brought into court, and would secure not only 
 greater efficiency in the enforcement of the criminal law, but also much 
 greater speed in the disposition of cases. 
 
 We have, as is well understood, certain constitutional restrictions as to 
 the procedure in criminal cases, which offer protection to the accused and 
 present difficulties in the proof of his guilt. But these obtain as well 
 in the English courts as in our own, and their existence does not offer a 
 reason for the delays from which we suffer, for such delays do not exist 
 in the administration of justice in England. A murder case which in this 
 country is permitted to drag itself out for three weeks or a month, in 
 England is disposed of in a day, two days, or, at the most, three days, — 
 certainly in less than one fifth the time. This is because the English 
 
THE CRIMINAL LAW 
 
 179 
 
 judges insist upon expedition by counsel, cut short useless cross-examina- 
 tions, and confine the evidence to the nub of the case. They exercise the 
 greater power, which, under the common-law rule, has always been exer- 
 cised by the court. Under such practice it would be possible for the 
 prosecuting attorneys to clear their dockets ; as it is now they are utterly 
 unable to do so. 
 
 At the present time, in our larger cities, a man who is indicted and 
 has means with which to secure bail is released on bond, unless he is 
 confined for murder in the first degree. The pressure upon the prose- 
 cuting officers is for the trial of those who are in jail and unable to give 
 bail, and as a result of the delays I have mentioned, jail cases are pro- 
 tracted and the trial of those who are released on bail is postponed often- 
 times to the indefinite future, the evidence disappears, newer and more 
 sensational cases come on, and ultimately nolles are entered and the 
 indicted man escapes. This is one explanation why so many crimes go 
 wholly unpunished. 
 
 Another cause of the inefficiency in the administration of the criminal 
 law is the difficulty of securing jurors properly sensible of the duty which 
 they are summoned to perform. In the extreme tenderness which the 
 state legislatures exhibit towards persons accused as criminals, and espe- 
 cially as murderers, they allow peremptory challenges to the defendant 
 far in excess of those allowed to the prosecution. In my own state of 
 Ohio, for a long time, in capital cases, the law allowed the prosecution 
 two peremptory challenges and the defendant twenty-three. This very 
 great discrimination between the two sides of the case enabled the de- 
 fendant's counsel to eliminate from the panel every man of force and 
 character, and to assemble a collection in the jury box of nondescripts of 
 no character, who were amenable to every breeze of emotion, however 
 maudlin or irrelevant to the issue. 
 
 I do not think that the members of the bar can escape the responsi- 
 bility for the demoralizing tendencies to which I have referred. The 
 perversions of justice in my own city of Cincinnati in 1884 led to the 
 appointment of a committee of the bar to visit the legislature, to urge it 
 to rid our criminal code of procedure of those features which placed the 
 prosecution at an unfair disadvantage in the trial of capital cases. The 
 indignation of the public at some of the failures of justice in flagrant 
 cases of crime had led to a riot and to the burning of our courthouse, 
 and the public finally became aroused to the serious defects in the law. 
 I had the honor of being one of those who waited upon the Judiciary 
 Committee of the Ohio legislature and preferred the request that the 
 twenty-three challenges allowed to the defendant be reduced to twelve, 
 and that the state be allowed a similar number ; but we found that there 
 were upon that committee lawyers a substantial part of whose practice 
 consisted in acting as counsel for defendants in criminal trials. When I 
 protested that twenty-three challenges was an outrageous number, the 
 
l8o AMERICAN STATE GOVERNMENT 
 
 chainnan of the committee leaned back with the remark, " Many a time 
 I would have given all my fee to have had twenty-four challenges for the 
 defendant." I cite this instance because I believe that the unjust disposi- 
 tion to curtail the power of judges is due more or less to the intervention 
 of some members of the bar whose practice is more or less beneficially 
 affected, as they conceive, by obstacles thus created to the due course of 
 justice. 
 
 Another reason for delays in the enforcement of criminal law is to be 
 found in the right of repeated appeals which are given in criminal cases. 
 The code of evidence, with its complicated rules and numerous technical 
 statutor)' limitations designed to favor the defendant, are all used as a 
 trap to catch the trial court in error, however technical, upon which, in 
 appellate proceedings, a reversal of the judgment of the court below may 
 be obtained. The rule which generally obtains in this country is, that any 
 error, however slight, must lead to a reversal of the judgment, unless it 
 can be shown affirmatively that it did not prejudice the defendant. The 
 disposition on the part of the courts to think that every provision of 
 every rule of the criminal law is one to be stricdy construed in favor of 
 the defendant, and even widened in its effect in the interest of the liberty 
 of the citizen, has led courts of appeal to a degree of refinement in up- 
 holding technicalities in favor of defendants, and in reversing convictions, 
 that renders one who has had practical knowledge of the trial of criminal 
 cases most impatient. 
 
 In a case carried on error to the Supreme Court of the United States 
 the point was raised for the first time in that court that the record did 
 not show an arraignment of the defendant and a plea of not guilty ; and 
 on this ground the court, three judges dissenting, reversed the judgment. 
 There was not a well-founded doubt of the fact that the defendant was 
 arraigned and pleaded not guilty. The record itself raised a presumption 
 that this was the fact ; but the judgment was reversed, although there 
 was not a pretense that the defendant had suffered any injury at the 
 trial by reason of the alleged defect in the procedure. When a court of 
 highest authority in this country thus interposes a bare technicality be- 
 tween a defendant and his just conviction, it may be pertinent to inquire 
 whether some of the laxity in our administration of the criminal law may 
 not be due to a proneness on the part of courts of last resort to reverse 
 judgments of conviction for narrowly technical error. There ought to be 
 introduced into the statutes of every state and of the United States, in 
 regard to appeals in criminal cases, — and, indeed, in regard to appeals in 
 civil cases, — a provision that no judgment of a trial court should be re- 
 versed except for an error which the court, after reading the entire record, 
 can affirmatively say would have led to a different verdict and judgment. 
 This would do no injustice and would end reversals for technicalities. 
 
 And, now, what has been the result of the lax administration of crimi- 
 nal law in this country ,? Criminal statistics are exceedingly difficult to 
 
THE CRIMINAL LAW 
 
 i«l 
 
 obtain. The number of homicides, the number of lynchings, and the 
 number of executions one can note from the daily newspapers, but the 
 number of indictments, trials, convictions, acquittals, or mistrials it is 
 hard to find. Since 1885 in the United States there have been 131,951 
 murders and homicides, and there have been 2286 executions. In 1885 
 the number of murders was 1808. In 1904 it had increased to 8482. 
 The number of executions in 1885 was 108. In 1904 it was 116. This 
 increase in the number of murders and homicides as compared with the 
 number of executions tells a startling story. As murder is on the increase, 
 so are all offenses of the felony class, and there can be no doubt that 
 they will continue to increase unless the criminal laws are enforced with 
 more certainty, more uniformity, and more severity than they are at 
 present. 
 
 The strongest force in our community is public opinion, and frequently 
 the existence of evils in the community is due to the fact that it is not suf- 
 ficiently directed to the evil in hand. The enormous discrepancy between 
 the crimes which are committed and the crimes which are actually brought 
 to trial is sufficient to show that public opinion is not alert enough, and 
 is not directed against prosecuting officers and judicial officers with suffi- 
 cient vigor to bring to trial every man guilty of an offense. In recent 
 years we have been engaged in the trial of wealthy men and corpora- 
 tions charged with violating the antitrust laws and the antirebate laws, 
 or laws against railway-rate discrimination. In these trials there has been 
 brought home to the public the difficulty of securing the conviction of 
 wealthy defendants, who employ acute counsel to take advantage of all 
 the technicalities and delays which the present criminal procedure makes 
 possible. And it is quite possible that the escape of wealthy malefactors 
 from just punishment will bring home to the people at large the convic- 
 tion which ought to obtain, that by the tenderness toward the individual 
 charged with crime manifested by legislatures and lawmakers during the 
 last fifty years in this country, great injustice has been caused to the 
 interests of the public, and that the time has come to call a halt. 
 
 CRIME AND JUDICIAL INEFFICIENCY^ 
 
 By James W. Garner 
 
 Ex-President Andrew D. White, in a recent address at Cornell Uni- 
 versity, declared that as a result of extensive studies carried on through 
 a long period of years and in all parts of the Union he had become 
 convinced that the United States leads the civilized world, with the 
 exception perhaps of lower Italy and Sicily, in the crime of murder and 
 especially of unpunished murders. 
 
 1 From the Annals of the American Academy, 1907. 
 
l82 
 
 AMERICAN STATE GOVERNMENT 
 
 The truth of this severe arraignment is easily established by reference 
 to the statistics of crime in this and other countries. The appalling 
 increase in the one crime of murder in the United States is apparent 
 from the following table compiled by the Chicago Tribune and published 
 in its issue of December lo last.^ 
 
 
 Number 
 
 
 
 Number 
 
 
 
 of murders 
 
 Number 
 
 Number of 
 
 of murders 
 
 Number 
 
 of 
 lynchings 
 
 
 and 
 
 for each 
 
 executions 
 
 and 
 
 Year 
 
 homicides 
 
 million of 
 
 in the 
 
 homicides 
 
 
 in the 
 
 people 
 
 United States 
 
 to each 
 
 
 United States 
 
 
 
 execution 
 
 
 iS8s 
 
 1,808 
 
 32.2 
 
 108 
 
 17 
 
 181 
 
 lS86 . 
 
 ',499 
 
 26.1 
 
 83 
 
 18 
 
 133 
 
 1887 . 
 
 2-335 
 
 39-8 
 
 79 
 
 29 
 
 125 
 
 1888 
 
 2,184 
 
 364 
 
 87 
 
 25 
 
 144 
 
 1889 
 
 3,567 
 
 58.2 
 
 98 
 
 36 
 
 17s 
 
 1890 
 
 4,290 
 
 68.5 
 
 102 
 
 42 
 
 123 
 
 1891 . 
 
 5,906 
 
 92.4 
 
 123 
 
 56 
 
 193 
 
 1892 . 
 
 6,791 
 
 104.2 
 
 107 
 
 63 
 
 230 
 
 1893 • ■ • 
 
 6,615 
 
 99' 5 
 
 126 
 
 52 
 
 200 
 
 1894 
 
 9,800 
 
 144.7 
 
 132 
 
 73 
 
 189 
 
 1895 
 
 10,500 
 
 152.2 
 
 132 
 
 79 
 
 166 
 
 1896 . . 
 
 10,652 
 
 151-3 
 
 122 
 
 87 
 
 "31 
 
 1897 . . . 
 
 9,520 
 
 132.8 
 
 128 
 
 74 
 
 166 
 
 1898 
 
 7,840 
 
 107.2 
 
 109 
 
 72 
 
 127 
 
 1899 . 
 
 6,225 
 
 83.6 
 
 131 
 
 87 
 
 107 
 
 1900 . ... 
 
 8,275 
 
 108.4 
 
 117 
 
 71 
 
 115 
 
 190I .... 
 
 7,852 
 
 100.9 
 
 118 
 
 67 
 
 ■35 
 
 1902 
 
 8,834 
 
 111.7 
 
 144 
 
 61 
 
 96 
 
 1903 . . 
 
 8,976 
 
 112 
 
 124 
 
 72 
 
 104 
 
 1904 
 
 8,482 
 
 104.4 
 
 116 
 
 73 
 
 87 
 
 Total 
 
 ■31,951 
 
 
 2,286 
 
 57 
 
 2,917 
 
 It will be seen from the above table that within the space of twenty 
 years the number of homicides has increased nearly 400 per cent ; that 
 the proportion of 32 homicides to each million of the population has 
 grown to 104, and that the number of legal executions has remained 
 substantially what it was when the number of homicides was only one 
 fourth as great as now. Compared with conditions in other lands, the 
 situation in the United States, as revealed by the statistics quoted above, 
 is not only disgraceful to American civilization, but is highly serious and 
 deserves the thoughtful consideration of all good citizens. As against 
 nearly 9000 homicides in the United States in 1903, only 321 were re- 
 ported in the German Empire, with approximately 60,000,000 inhabitants; 
 only 322 in England and Wales, with a population of 32,500,000; 526 
 
 J I cannot verify the accuracy of the above statistics. A carefully prepared table, pub- 
 lished by Judge William H. Thomas, of Montgomery, Alabama, covering the years 1881- 
 1906, shows substantially the same results. 
 
THE CRIMINAL LAW 183 
 
 in France, with a population of 38,000,000, and 61 in the Dominion of 
 Canada, with a population of 5,000,000. With 112 homicides to each 
 1,000,000 of the population in the United States in 1903, England and 
 Wales had less than 10 (1902), France 13J (1899), the German Empire 
 less than 5 (1899), and Canada about 12 (1903). In the city of Chicago 
 in 1906, 187 homicides were reported, as against 24 in London, with a 
 population three times as great, 22 in Paris, and 44 in Berlin, including 
 attempted murders. The worst feature about the situation in the United 
 States is the small number of convictions and executions, the latter being 
 but little more than i per cent of the homicides, i in 73 (1904), while 
 the number of lynchings exceeds the number of legal executions.^ With 
 187 homicides in Chicago last year, there were but 2 cases of capital 
 punishment, and the Cook County jailer informs me (AprU, 1907) that 
 there are no murderers awaiting execution. 
 
 These facts need little comment. Taken in connection with the statis- 
 tics of the increase of other crime than murder, they reveal a reign of 
 lawlessness, a disrespect for constituted authority, and a judicial ineffi- 
 ciency without a parallel in any other civilized country. Dr. Cutler, in 
 his interesting volume on " Lynch Law," shows that during the last 
 twenty years more than three thousand persons have been put to death 
 in the United States by lynch law, whereas, according to the statement 
 of a well-known American jurist, there has not been a case of lynch law 
 in England for seventy-five years, and possibly the same may be said of 
 Canada, which is separated from the United States only by an imag- 
 inary boundary line.^ Everywhere in the United States we find an in- 
 creasing disposition upon the part of the people to "' take the law into 
 their own hands," as they say, where there have been flagrant failures 
 of justice, and inflict, by mob law, that punishment which should alone 
 be the function of the courts. The causes for the extraordinary increase 
 of crime in the United States are due partly to the tolerant attitude of 
 the people toward the criminal class and partly to the lax administration 
 of the criminal law, which, by impairing popular confidence in the effi- 
 ciency of the courts, fosters the mob spirit among all classes, and by the 
 uncertainty or failure with which it metes out punishment, encourages 
 the violation of law. There is, as ex-President White has pointed out, 
 too much sham humanitarianism, too much overwrought, maudlin senti- 
 mentality in favor of the criminal and too little appreciation of the rights 
 of society. In spite of the extraordinary increase of the crime of murder, 
 
 1 These statistics are compiled mainly from the tables of the Chicago Tribune, the esti- 
 mates of Judge Thomas, referred to above, and the Statesman's Year-Book. See also tables 
 of statistics in the Chicago Record-Herald for July 3, 1906. Statistics recently collected by 
 the New York World show that in 1904, out of 216 convicted murderers in the prisons of 
 New York state, only 5 were awaiting execution, and that of 2107 murderers held for trial 
 in that state during the ten years from 1896 to 1905 only 32 were capitally punished. 
 
 2 Several well-informed Canadians inform me that they have never heard of a case of 
 lynching in the Dominion, and upon inquiry I have received similar testimony regarding the 
 German Empire. 
 
1 84 AMERICAN STATE GOVERNMENT 
 
 we hear it said that the state has no right to put murderers to death.* 
 Convicted criminals of the worst type are pardoned through personal 
 sympathy for their families, sometimes upon the ridiculous representation 
 that they have made " brave fights " against " fearful odds " for their 
 lives, not infrequendy upon petitions signed by the judge and jury who 
 made the conviction or by those of the community who have been 
 wronged. One of the worst traits of American civilization, as compared 
 with that of England and some of the countries on the continent, is the 
 general disrespect for law among all classes. To one familiar with the 
 law-abiding instincts of the English people and their regard for authority 
 the lawlessness of Americans seems strange indeed, considering the racial 
 identity of the two peoples and the similarity of their legal institutions. 
 
 To a large extent conditions in America are due, as I have said, to in- 
 efficient administration of the criminal law, — are the result, to use the 
 language of Justice Brown of the United States Supreme Court, of the 
 failure of the courts to discharge their natural functions. This view is no 
 longer confined to the ranks of laymen, but, and it is an encouraging 
 sign, the best and most candid judges and practitioners are beginning to 
 admit that there are communities in the United States where there has 
 been a virtual breakdown of the administration of criminal justice." The 
 causes of this inefficiency are not far to seek. They arise mainly from 
 a cumbersome and antiquated procedure which is slow to start, which 
 permits unnecessary delay in expediting trials once begun, which attaches 
 undue importance to technicalities, as a result of which the fundamental 
 question of establishing the guilt or innocence of the accused is subordi- 
 nated to mere matters of practice and procedure, that is, primarily to the 
 attainment of technical perfection. In the second place, the workings of 
 the jury system in the form in which it exists in the American states, 
 together with a too wide latitude of appeal, are responsible for a large 
 proportion of the miscarriages of justice and the escape of criminals from 
 deserved punishment. 
 
 The constitutions of all the states guarantee to the accused a '" speedy " 
 trial, but there are few communities where this guaranty is anything 
 more than an empty declaration. Nearly everywhere the jails are full of 
 
 1 Mayor Dunne of Chicago has recently expressed this opinion. The offenses of robbery, 
 burglary, and assaults upon women in this city during the last year have been so numerous 
 and bold as to cause general alarm. A bill fixing the death penalty for these offenses is now 
 before the legislature. One of the senators from Chicago, in advocating the bill, declared 
 that there were communities in his district in which the citizens were constantly terrorized. 
 Women, he declared, could not venture on the streets even in daylight without being as- 
 saulted, and, if they resisted, murdered. The city council passed a resolution memorializing 
 the legislature to prescribe the death penalty for assaults on women and children, but until 
 there is a different public attitude toward crime there is little lilielihood that this will be done. 
 
 2 Hon. William H. Taft, a man who has had large experience both at the bar and on the 
 bench, recently declared in an address at Yale University : " I grieve for my country to say 
 that the administration of the criminal law in all the states of this Union (there may be one 
 or two exceptions) is a disgrace to our civilization." Judge Amidon, of the United States 
 District Court for the district of North Dakota, recently, in an address before the Minnesota 
 Bar Association, expressed a similar opinion of our system of criminal justice. 
 
THE CRIMINAL LAW 185 
 
 prisoners who have waited months for trial, and everywhere the dockets 
 of the courts are congested with cases which cannot be reached for months 
 or years. It was put in evidence before the New York State Commis- 
 sion on the Law's Delay, in 1903, that on the first of November of that 
 year there were ten thousand untried jury cases on the calendar of the 
 first department of the Supreme Court of that state. The court was then 
 three years behind with its work, and it required from one and a half to 
 two years to reach a jury trial in King's County and in the eighth judicial 
 district (western New York).^ The clerk of the superior court of Cook 
 County, Illinois, writes me that at the beginning of the present year 
 12,653 cases were pending before the superior court and 18,828 cases 
 before the circuit court. During the last two years these courts have 
 made notable progress toward clearing their calendars, although the 
 former is still more than a year behind and the latter about two years 
 in arrears with its work. In some of the other states conditions are even 
 worse than those here described. Aside from the injury to the accused, 
 the effect of such delays is often to defeat the ends of justice.^ During 
 the long period intervening between the commission of the offense and 
 the beginning of the trial witnesses sometimes die, or remove from the 
 jurisdiction of the court, or, owing to the infirmities of memory, forget 
 material facts in regard to the crime, and, what is a common occurrence, 
 public interest in the case subsides, thus removing that pressure which 
 is one of the chief incentives to induce the state's attorney to prosecute 
 the case. The judicial annals of all our states are full of flagrant in- 
 stances of the breakdown of justice on account of the delays in bringing 
 cases to trial. At this moment I recall a case, reported in the press dis- 
 patchesMast July, of a man who was kept in a Milwaukee jaU for ten 
 months awaiting trial on a charge for which the maximum punishment 
 was ninety days' imprisonment.' An " outrageous " instance of such a 
 delay, to use the language of an Illinois lawyer, is afforded by the Iro- 
 quois Theater fire case. The fire occurred on December 30, 1903, result- 
 ing in the loss of nearly six hundred lives, and two months later the 
 owner of the theater was indicted. The indictment was held under 
 
 1 Report of Commission on the Law's Delay, pp. 8, 17. 
 
 2 This is particularly true as regards civil controversies. Mr. Wheeler H. Peckham, chair- 
 man of the New York Commission on the Law's Delay, related before that body an instance 
 illustrating this fact. He said he had a case in which there were two witnesses, and while 
 waiting fifteen months for an opportunity to bring it to trial, one of the witnesses died and 
 the other moved away. He concluded, therefore, that it would be better to abandon the case, 
 and so it was dropped (Commission on Law's Delay, p. 169). Justice Gaynor, testifying before 
 the same commission concerning the necessity of bringing commercial cases to trial speedily 
 if they were to be tried at all, declared that such cases could rarely " live more than three 
 months, and that in three years they were as dead as a door nail " (ibid. p. 273). 
 
 8 One of the causes of delay in bringing cases to trial is the grand-jury systeni. After 
 arrest and hearing before a magistrate, the accused must be held to await the action of a 
 grand jury that may not be summoned within three or four months. The remedy is that al- 
 ready adopted in a considerable number of states, and which has existed in Connecticut nearly 
 a hundred years, namely, to authorize trials upon information by the state's attorney, subject 
 to certain restrictions in the interest both of the criminal and the society. 
 
1 86 AMERICAN STATE GOVERNMENT 
 
 advisement three months by the judge and then quashed. On March 4, 
 1905, a new indictment was made, and it was held by the judge for a 
 period of seven and a half months. Then an entire week was spent in 
 arguing the question of a change of venue. Finally, in March, 1907, 
 about four years and three months after the fire, the case was brought 
 to trial, only to result in the acquittal of the defendant upon instructions 
 from the court that the building ordinances under which the indictment 
 had been found, were defective ; that is, the verdict was based not on 
 the merits of the case (the judge said the defendant might be niorally 
 guilty but not legally guilty) but rather on a technicality. That criminal 
 prosecutions may be more promptly initiated and rapidly expedited the 
 experience of England affords abundant evidence. It is the practice there 
 to bring the accused before a magistrate within a few hours after his 
 arrest and commit him to the next session. Rarely three months elapse 
 between the commitment and the infliction of the punishment, if he is 
 found guilty.-" 
 
 After the case has been reached on the calendar there is the delay of 
 impaneling the jury, — a delay which, under the practice of most of our 
 states, is coming more and more to be an intolerable evil. This proceed- 
 ing, as Justice Brown well observes, ought never to consume more than 
 an hour or two, and under the English procedure this is the rule. Two 
 flagrant instances of this evil were recently afforded by the Gilhooley and 
 Shea cases in Chicago. In the former case nine and a half weeks were 
 required to select the jury, involving an examination of 4150 talesmen, 
 and at a cost of some $20,000 to the state. The selection of the first 
 Shea jury required thirteen weeks, the summoning of 10,000 veniremen, 
 the examination of 4716 talesmen at a cost of $40,000 to the state and 
 over $20,000 to the defendant, and there is no reason to believe that 
 the jury finally chosen were any better qualified than the first twelve 
 men examined.^ The court permitted counsel to introduce false issues 
 and ask irrelevant questions concerning their social, religious, and busi- 
 ness affiliations, thus laying the foundations for indefensible challenges.' 
 In the Gilhooley trial counsel for the defense interrogated one of the 
 
 1 It is refreshing to note a marked awakening of sentiment among the judges to the evil 
 described above. Recently Judge Barnes, of Chicago, declared that " the trouble with our 
 criminal law is that offenders are not brought quickly enough to trial. If a man, as soon as 
 he commits a crime, could be brought immediately to trial and sentenced forthwith, we should 
 have a very great decrease of crime." State's Attorney Healy, of Cook County, has expressed 
 a similar opinion. 
 
 2 T. Newton Crane, Esq., formerly a member of the St. Louis bar, but for some years 
 past a prominent barrister of London, in a letter to Hon. Joseph H. Choate under date of 
 March 31, 1903, speaking of the English procedure of impaneling juries, said; "The ex- 
 amination of jurors on their voir dire is absolutely unknown in England, while many lawyers 
 who have been in practice for twenty years or more have never known a juror to be objected 
 to or excused for cause. It not infrequently happens that the same twelve jurymen will hear 
 three cases without leaving the box " (Report Commission on Law's Delay, p. 111). 
 
 8 Another illustration of the practice of irrelevant interrogatories in the selection of 
 juries was recently offered by the Iroquois Theater fire case, where counsel for the defend- 
 ant asked prospective jurors whether they had any prejudices against dancing, whether they 
 
THE CRIMINAL LAW 187 
 
 jurors nearly two hours, mostly on immaterial matters, and the state's 
 attorney put him through a similar ordeal, the request of the state that 
 thirty minutes be made the maximum time for the examination having 
 been denied by the court. According to the English practice the re- 
 quirements of due process of law in the selection of juries are satisfied 
 by the simple inquiry whether the prospective juror is in any way related 
 to the defendant, and if he knows of any reason why he is unable to re- 
 turn a verdict in accordance with the law and the evidence. In the second 
 Shea trial the judge followed this sensible rule, and the jury was selected 
 in twelve days. He refused to permit the disgraceful wrangling, dilatory 
 obstructions, and rambling, long-drawn-out, and irrelevant interrogations 
 which marked the proceeding by which the first jury had been impaneled. 
 
 The remedies for most of the evils that have grown up in connection 
 with the selections of juries are the prohibition of irrelevant examina- 
 tions, the making of the decision of the trial judge final upon objections 
 to questions asked prospective jurors, and the forbidding of reversals 
 upon such decisions unless they amount to a clear abuse of discretion, a 
 substantial reduction of the number of challenges allowed, provision for 
 special venires in important cases, and the amelioration of the conditions 
 of jury service by treating jurors not like prisoners undergoing punish- 
 ment, but as citizens performing an honorable public service.-' 
 
 The progress of the trial after the selection of the jury is often unnec- 
 essarily hindered by slavish adherence to rules of procedure which are 
 prolix, antiquated in many particulars, and honeycombed with technical- 
 ities which to a layman seem to have no other purpose than to delay 
 judgment or provide loopholes of escape for criminals. Indictments which 
 are not loaded down with meaningless verbiage, and which do not go into 
 an absurd degree of particularity, — which, in short, do not conform in 
 the minutest detail to the technical requirements of the " sacred " forms 
 of procedure, are quashed. Every prosecuting officer knows how difficult 
 it is, on account of the insistence of the courts upon technical accuracy, to 
 frame an indictment that will be sustained.^ Not infrequently ingenious 
 
 were fond of music, whether they believed in theatergoing, whether they were prejudiced 
 against city people, whether any of their families were ever hurt in a fire, what newspapers 
 they had read, etc. 
 
 1 It is not strange that a man who is confronted by the prospect of being dragged away 
 from his home and business and kept in a state of virtual imprisonment for weeks and months 
 should profess prejudice or exaggerate possible sympathies in order to escape the hardships 
 incident to such service. State's Attorney Healy, of Chicago, recently stated the matter cor- 
 rectly when he declared that the tendency of the professional and business man to avoid jury 
 service is due to the failure of the law to provide a more expeditious procedure for the trial 
 of cases. That the amelioration of the conditions of jury service would diminish the difficul- 
 ties of impaneling juries was shown in the second Shea trial, when Judge Kavanagh announced 
 that jurors would be treated more humanely, and that instead of being locked up like prisoners, 
 they would be treated with the consideration due citizens performing a public duty. With this 
 assurance the selection of the jury proceeded at a rate which, as compared with the first trial, 
 was expeditious enough. 
 
 2 Reversals have been granted for the omission or inclusion of qualifying words or even 
 the abbreviation of the name of the state in whose name the indictment is brought. A recent 
 
l88 AMERICAN STATE GOVERNMENT 
 
 counsel who have hopeless cases refrain from demurring to indictments 
 which they know to be technically faulty in order that they may move 
 for new trials in case their clients are convicted. If the indictment is 
 sustained, there is always a probability that the case will be postponed, 
 when called, on account of the unpreparedness of counsel, the absence of 
 material witnesses, or similar causes. Every one has known of notorious 
 cases to be continued until finally the popular demand for prosecution 
 subsided, and the state's attorney, through sheer worry or lack of interest, 
 dropped the case and turned the criminal loose. Here, as in other re- 
 spects, the English procedure is an improvement upon that followed gen- 
 erally in the American states. Except for sickness, evidence of which 
 must be produced in writing, an English judge will not permit continu- 
 ances or adjournments. No request to have a case stand over or to go to 
 the next term merely for the convenience of counsel, says a prominent 
 London barrister, would be listened to.' 
 
 The progress of the trial is frequently unnecessarily delayed by the 
 method of examining witnesses^ and by protracted arguments over 
 questions concerning the admissibility of evidence. It is a common com- 
 plaint against our method of criminal procedure that too much time is 
 wasted over technical objections to evidence. Here again the English 
 practice of forbidding long-drawn-out arguments on such questions might 
 well be followed in the United States. Justice Ingraham of the New 
 York supreme court says : 
 
 I have heard cases tried in England quite a number of times, both at the 
 Assizes and in London, and I do not think I ever heard five minutes given 
 during a trial of a case to the discussion of questions of evidence. I have seen 
 case after case go through without the question of evidence being raised at all." 
 This is a reform which any judge who has the proper conception of his duty 
 may introduce without exceeding his legal authority.* 
 
 instance of the difficulty experienced in framing an indictment free from technical flaws was 
 afforded by the case of Senator Burton, of Kansas, who was charged with improperly accept- 
 ing a retainer for the use of his influence before the Post Office Department. Three successive 
 indictments were drawn, one of which was quashed because of a mere variation as to where 
 the money was received, — whether at Washington or Kansas City, — a fact which had no rela- 
 tion to the guilt or innocence of the accused, and which might well have been considered as 
 immaterial. The state's attorney barely succeeded in drawing a good indictment before the 
 statute of limitations began to run against the case. 
 
 1 Letter of Mr. Crane to Mr. Choate, cited above. 
 
 2 Justice Brown suggests that the progress of the trial might often be facilitated by re- 
 quiring counsel to stand while examining witnesses and by prohibiting them from taking notes 
 (Green Bag, Vol. XVII, p. 625). 
 
 8 Testimony before New York Commission on the Law's Delay, p. 247. 
 
 ^ Judge Kavanagh, in the second Shea trial, moved apparently by the complaint which 
 had been made against the conduct of the judge who tried the first case, for permitting coun- 
 sel to spend entire days in arguments and wrangles, and deeply impressed, as he says, by the 
 results of some personal observations of the procedure of the English courts during the pre- 
 ceding summer, announced to counsel that they would not be permitted to delay the trial as 
 before, but that points raised on the admissibility of certain evidence would be decided by 
 the court without argument. 
 
THE CRIMINAL LAW 189 
 
 The progress of criminal trials in England is further facilitated by a 
 procedure which is simple and expeditious, and which relieves the trial 
 court of the preliminary work of preparing the case for trial. In the be- 
 ginning the case is taken in hand by a master who whips it into shape 
 and engineers it through the preliminary stage, after which a trained bar- 
 rister takes it in charge and it is quickly disposed of by the court. Thus 
 the time of the judge is never wasted in hearing applications, interlocutory 
 motions, and other matters which may as well be disposed of out of court, 
 thus leaving the court nothing to do but try the case. The English system 
 of pleading has in late years been freed from technicalities, so that not 
 only has the evil of retrials been greatly reduced, but the ability of the 
 courts to dispatch business has largely increased.^ Concerning the effi- 
 ciency of the English procedure and the reasons for its superiority over 
 that in the American states. Justice Brown, recently retired from the 
 supreme court, has this to say : 
 
 O ne who has watched day by day the practical administration of justice in 
 an Ene;lish court cannot hnt he. struck by the celerity, accuracy, and dis regar"a 
 of mprp tpc ll"'''''^' ties with which husinpss is transacted. One is irresistibTy im- 
 pelled to ask himself why it is that, with the reputation of Americans for doing 
 everything, from the building of bridges over the Nile or battleships for Russia 
 and Japan, to harvesting, reaping, plowing, and even making butter by machin- 
 ery, faster than other people, a court in conservative old England will dispose 
 of half a dozen jury cases in the time that would be required here for dispatch- 
 ing one. The cause is not far to seek. It lies in the close confinement of 
 counsel to the questions at issue and the prompt interposition of the court to 
 prevent delay. The trial is conducted by men trained for that special purpose, 
 whose interest is to expedite and not to prolong them. N o time is waste d in 
 i mmaterial matte rs. Objections to testimony are discouraged, rarely argueS", and 
 almost never made the subject of exception. The testimony is confined to the 
 exact point in issue. Mere oratory is at a discount. New trials are rar ely 
 granted. A criminal trial especially is a serious business, since in case of a 
 verdict of guilty it is all up with the defendant, and nothing can save him from 
 punishment but the pardoning power of the home secretary. Tlje result.is 
 that homicides are infrequent, and offenders rarely escape p unishment for their 
 . crimes.' ' 
 
 One of the most common causes for the breakdown of criminal justice 
 is found in the workings of the jury system in the form in which it exists 
 
 1 Every well-informed lawyer and judge who testified before the New York Commission 
 on the Law's Delay commended the efficiency of the English courts. T. Newton Crane de- 
 clared that the " promptness and dispatch " with which they tried cases was " quite incredible 
 to the patient New York lawyer who was accustomed to wait three years tor the first oppor- 
 tunity to try a jury case. Justice Friedman, of New York, stated that the " results in Englaiid 
 were truly great," and others gave similar opinions (Report, pp. 77, 277). The English 
 master of judicial statistics, in a letter to Ambassador Choate under date of April 16,1903, 
 stated that twenty-three judges sitting at London handle all the litigation of England and 
 Wales, with a population of over 32,500,000, and that they actually try and determme an 
 average of 5600 cases a year, or more than twice as many as are tried by forty-three judges m 
 New York and Kings counties (Report of Commission on Law's Delay, pp. 76, 106). 
 
 2 Green Bag, Vol. XVII, p. 624. 
 
I go 
 
 AMERICAN STATE GOVERNMENT 
 
 in America. This is due mainly to the practice by which the jury is exalted 
 at the expense of the judge and a unanimous verdict required to convict. 
 There is still a disposition, as in Blackstone's day, to worship the jury as 
 a sort of fetish and to regard the judge with a kind of superstitious terror, 
 although nearly everywhere the judges are popularly elected for definite 
 terms. In some states this feeling is so deep-rooted that juries are, by the 
 constitution, made judges of the law as well as of the fact,^ and practically 
 everywhere they are forbidden to even listen to suggestions from the 
 court concerning questions of fact. As Judge Grosscup well says, the 
 American judge is pra ctically ii ot allowed to tak e part in the trial of case s. 
 His_pos ition is ratheF tKaToTan umpire or moderator than of a judge in 
 any real or vital sense"! He may listen to application's of various kinds 
 and make rulings or motions, but he cannot comment on the evidence, 
 or review the facts, sifting out the material from the immaterial, and put- 
 ting them before the jury in intelligible and coherent form. It matters 
 not how much counsel may confuse and mislead the jury by their argu- 
 ments, the judge cannot set them right before giving the case into their 
 hands. Secretary Taft in a recent address complained of the position of 
 impotency to which American judges have been reduced, and advocated 
 the restoration to them of some of the powers which English judges en- 
 joy at common law, especially if the unanimity rule as to verdicts is to, 
 be retained. 
 
 T he weakest point in the jury system is the rule requiring unanimous 
 verdicts to convict. Although time-honored, there have always been some 
 tosee the absurdity of the rule. Hallam, in his " Middle Ages," called 
 it a "preposterous relic of barbarism"; Jeremy Bentham and Francis 
 Lieber inveighed against it, and Judge Cooley, in his edition of Black- 
 stone, declared that the rule was "" repugnant to all experience of human 
 conduct, passions, and understandings," and asserted that " it could hardly 
 in any age have been introduced into practice by a deliberate act of the 
 legislature." Justices Miller and Brown, of the United States Supreme 
 Court, and ex-Judge William H. Taft are all on record as favoring a 
 modification of the rule. Justice Ingraham, of the New York supreme 
 court, has suggested the possibility of adopting a rule making a verdict 
 by three fourths of the jury sufficient to convict, subject to the approval 
 of the presiding judge. ^ Nowhere on the continent of Europe does the 
 unanimity requirement prevail. In Germany, Austria, and Portugal a 
 verdict may be returned by two thirds of the jury ; in France and Italy 
 by a bare majority ; and in the Netherlands, where crime is almost 
 
 1 This is trae in Illinois. A bill to limit the power of juries to the determination of ques- 
 tions of fact is now before the Illinois legislature. It was drawn by ex-Judge Stein, of 
 Chicago, and has been recommended by the supreme court, which is required by the con- 
 stitution to study defects in the laws and suggest such alterations as it may think proper. 
 
 2 Report of New York State Commission on the Law's Delay, p. 256, Judge Gibbons, of 
 Chicago, recently, in a letter to the Board of Cook County Commissioners, recommended 
 the abolition of the unanimity requirement and the substitution of a rule making a verdict 
 by three fourths of the jury sufficient to convict. 
 
THE CRIMINAL LAW 
 
 191 
 
 nonexistent, trial by jury does not prevail at all. In Scotland, curiously 
 enough, a unanimous verdict is required to convict in civil cases, while a 
 two-thirds verdict suffices in criminal cases. In England the unanimity 
 ru le still prevails, but juries ar e ne ver empow^ed, except in libel cases, 
 to pass on question s of l^w ; ^nri jn dpt-errnini ng questions gLiactlheyLaie- 
 so much under the control of the court that manv of the abuse s which_ 
 Fesujt from j ury trials in the U nited~States are .avaided^ The theory upon 
 which the unanimity rule rests is that twelve men may be found who will 
 take the same view of a disputed fact, that the balance of each juror's 
 mind can be struck in the same direction, that all are able to feel the 
 same cogency of proof, and that no one can be drawn to a conclusion 
 different from that at which his fellows have arrived.^ It is needless to 
 say that such conditions are rarely present in the minds of twelve men 
 picked up at random from the community. The result is that in many 
 cases the unanimity is apparent and not real. "^Tlvery one is familiar with 
 cases in which a single juror has set at naught the opinions of eleven, — 
 has, by sheer obstinacy and power of physical endurance, compelled his 
 associates to return verdicts which did not represent their real convic- 
 tions, or driven them to disagreements, in either case defeating justice. 
 The unanimity rule gives too much power to one man. It virtually places 
 the protection of the community in the hands of a single individual, who I 
 is often selected without regard to mental or moral qualification. I 
 
 It is well known that verdicts are often compromises. The hard lot of 
 the juror who is kept away from his home and business often tends to 
 drive him to yield a few points and ultimately to sacrifice his real con- 
 viction in order to escape from the discomforts and hardships incident to 
 jury service in protracted cases. In many of the American states the 
 unanimity requirement in the trial of civil cases has been dispensed with, 
 and in a considerable number of states the jury may be waived altogether 
 with the consent of the parties. Likewise in a number of states the con- 
 stitution permits verdicts to be returned by less than twelve jurors in 
 cases involving misdemeanors, and in several (Louisiana and Montana, 
 for example) a verdict by two thirds of the jury may suffice for convic- 
 tion in all cases not amounting to felony. Everywhere there is evidence 
 o f increasing dissatisfaction with the results of the unani mity rule. ' 
 
 One of the principal w eaknesses of the jury sy stem isTRe 1 ule which 
 requires" the jury to be sati sfaed_beyond a reasonable dQubt_of_t he guilt 
 of _the _accused before returning a verdict of convict ion. As if this were 1 
 not enough, we not infrequently find the courts delivering instructions to I 
 juries to give the "most charitable and merciful construction " to the facts. ] 
 This rule, together with the sacrosanct interpretation given to the doc- 
 trine of presumed innocence, — a presumption which, as Dean Huffcut 
 well observed, is raised by some courts to the value of actual proof of 
 innocence, — enables a large proportion of criminals to escape punishment. 
 
 1 Compare Forsythe, Trial by Jury, p. 205. 
 
192 AMERICAN STATE GOVERNMENT 
 
 Both rules are no doubt the means of occasionally saving an innocent 
 man, but by weakening public confidence in the courts and encouraging 
 crime thev have caused the death of many times the number of those 
 whom they have judicially shielded.^ The rule as to reasonable doubt 
 should be abolished and the jury required to convict when satisfied by 
 a fair preponderance of the evidence of the guilt of the accused. 
 
 The most prolific source of the law's delay is the American practice of 
 allowing appeals almost as a matter of course, and of reversinpr the d eci- 
 sions-pT lower courts upon technical errors and granting new trials to 
 criminals who h ave already been convicted. The rule also contributes 
 powerfully to the encouragement ot litigation, and so frequently ends in 
 flagrant miscarriages of justice as to impair seriously the public confidence 
 in our present system of criminal justice. Ju stice Brown hardly exag - 
 gerated the fact when he said that, according to American pr ocedure, 3ie 
 r endering of the verdict is only the beginning of^the trial in serious cri m- 
 inal cases . The supreme-court reports of all our states are full of cases 
 illustrating the truth of Justice Brown's statement. Judge Everett P. 
 Wheeler, in an article in the Columbia Law Review^ cites the case of a 
 negro desperado in New York who had been tried three times for the 
 same murder, and while awaiting his fourth trial, escaped and was shot in 
 December, 1900, while resisting arrest. He quotes the New York Times 
 of July 16, 1903, for an account of the lynching of a murderer who had 
 been twice found guilty by the unanimous verdict of a jury and twice 
 granted new trials on technical grounds. After the third conviction he 
 was lynched by a mob composed of the citizens of the community, who 
 doubtless feared that a fourth trial would follow, ending in the acquittal 
 of the criminal. A somewhat similar case was the lynching of a mur- 
 derer at Tallulah, Louisiana, last summer. After having been convicted 
 and sentenced to death, the supreme court reversed the decision of the 
 lower court on a technicality and ordered a new trial. The second trial 
 was interrupted by the death of a member of the judge's family, and 
 when the third trial was begun, the plea of "" double jeopardy " was set 
 up, whereupon the case was sent up to the supreme court for a ruling 
 on this point. At this juncture, two years and three months having 
 elapsed since the offense was committed, the citizens, disgusted at the 
 attempt to punish by due process of law a murderer concerning whose 
 guilt there seems to have never been any doubt, took the law into their 
 own hands and inflicted the punishment themselves. Such cases remind 
 us that there may be an element of truth in Goldwin Smith's dictum that 
 there are communities in the United States where lynch law is better 
 than any other. Dean Huffcut, in an address on the Administration of 
 the Criminal Law, delivered at Cornell University on December 6 last, 
 referred to a murder case which had been tried substantially three times, 
 
 1 On this point compare the opinion of Everett P. Wheeler, in Columbia Law Review, 
 Vol. IV, p. 356. 2 Vol. IV, p. 360. 
 
THE CRIMINAL LAW 1 93 
 
 and which had lately been disposed of, more than seven years after the 
 offense was committed.^ The first trial had failed near its close by the 
 illness of a juror ; the conviction upon the second trial had been set aside 
 by the court of appeals for error; upon third trial he was again con- 
 victed, and the judgment was sustained by the court of last resort. The 
 Chicago papers some time ago gave an account of a personal-injury case 
 that had been up to the supreme court four times and was then getting 
 ready for its fifth journey to Springfield. Instances like these might be 
 multiplied indefinitely. They are extreme cases, it is true, but they are 
 not rare, and they illustrate a growing, not to say intolerable, evil in our 
 judicial procedure. 
 
 T ^e pernicious American doctrine that erro r in the procedure of the 
 trial court shall be presumed to have ail ectea prejudicially the rights of the 
 defendant, and the practice of appellate courts in granting new trials, 
 even when it can be affirmatively shown that the error complained of 
 was immaterial, are doing more than anything else to multiply appeals, 
 diminish popular confidence in the courts, and thwart justice. The f oUoj v- 
 i ng are s ome of t h e p;-rounds actuallv ass^p-npH hy i^ppc]!; , ^^' ""urtT fnr 
 reversing- the rnnvirrinns of Inwpr rniirtg and allowir^g t(\p™ triak : be- 
 cause the indictment contained the name of the state in abbreviated 
 form ; because the word " feloniously " was omitted from the indictment, I 
 although the evidence showed that the crime was committed feloniously ; 
 
 I because the words " person or human being " were omitted from the 
 
 ) indictment ; because it did not appear from the record of the trial court 
 that the accused had been arraigned and pleaded (as if he could have 
 been tried without being arraigned and without pleading) ; because the i 
 jury reached a verdict on Sunday ; because the defendant was allowed to 
 offer evidence as to his good reputation for honesty and integrity, but 
 not for truth and veracity (thus assuming that the jury might not believe 
 the testimony as to the former, but might believe it as to the latter) ; 
 because the judge was absent from the trial three minutes ; because wit- 
 nesses were allowed to testify that at the time of the murder bystanders 
 shouted " fire," "' murder," etc., all of which were prejudicial to the right 
 
 ) of the accused ; because the words " on oath " were omitted from the 
 indictment ; because the officer who summoned the jury was not specially 
 
 ' sworn ; because the evidence on which a notorious robber was convicted 
 failed to show whether the stolen goods were in coin or bills ; because ; 
 evidence was admitted regarding former crimes committed by the accused, 
 etc.^ This list is taken from actual cases and might be multiplied in- 
 definitely if it were thought necessary. Some of the instances of the 
 enforcement of the rule of presumed prejudice regarding error in judicial 
 procedure, says Dean Wigmore, one of the leading authorities on the law 
 
 1 For reference to a number of similar cases, see an article by Nathan Smyth, in the 
 Harvard Law Review^ Vol. XVII, p. 321. 
 
 2 Compare an article by George W. Alger, in the Atlantic Monthly, Vol. XCVII, p. 502. 
 
194 
 
 AMERICAN STATE GOVERNMENT 
 
 of evidence, would seem incredible even in the justice of a tribe of African 
 fetish worshipers. The exaggerated form which it takes in America tends 
 to reduce the trial to a mere contest over errors rather than a serious 
 quest for justice, — a sort of game which the clever lawyer who has no 
 case on the merits seeks to play in such a way as to entrap the court 
 into committing an error which will form the basis of a new trial. In the 
 ordina ry course the judge is requested to charge the jury on certain p rop- 
 ositions. If he refuses and the accused is convicted, a bill of exceptions 
 follows and the case is appealed. In some states, if the judge neglects 
 to charge the jury on every point involved in the case, the defendant, if 
 convicted, is entitled to a new trial. If he errs in his statement regarding 
 the applicability of the law, he lays the basis for a new trial. If he per- 
 mits the introduction of certain evidence, even though it is improper, 
 merely because of its logical irrelevancy, and should be excluded only for 
 the purpose of saving time, the presumption is that it affects prejudicially 
 the case of the defendant, and he is entitled to a new trial. Likewise, 
 where the court admits hearsay evidence, the presumption is that the 
 jury are incapable of weighing and discounting it, although perfectly 
 capable of weighing and estimating the value of material evidence, and 
 hence the admission of such evidence is treated as a fatal error. .Thus 
 the judge is yirroimded on every side by pitfalls set by ingenious counsel, 
 and in the trial of great crimin al cases there are few w ho are able to pa ss 
 the ordeal without falling into at least one of the traps thus set' 
 
 I he practice ot allowmg new trials upon trifling prrors has hpcome an 
 ) evil so se rious as to bring our system of criminal justice into great dis- 
 repute. A committee of the American Bar Association, after an investi- 
 gation of the subject in 1887, reported that new trials were granted 
 in 46 per cent of all cases brought under review in the appellate 
 courts of this country. The Commission on the Law's Delay, created 
 by the authority of the legislature of New York in 1903, found that 
 the proportion in that state was 42 per cent." Upon examination of 
 the supreme-court reports of Illinois, covering the years 1903-1905, 
 I found the proportion in this state to be about 40 per cent, fifteen 
 of the twenty-five criminal cases reversed being upon errors which could 
 hardly be considered as substantial in the sense that they could be shown 
 affirmatively to prejudice the rights of the accused. A large proportion 
 of the reversals were founded upon errors of practice and procedure, 
 and related principally to faulty indictments and the admission or exclu- 
 sion of certain evidence. A similar examination of the Wisconsin reports 
 showed the proportion of reversals to be about 30 per cent of the 
 total number of appealed cases. A comparison of these figures with 
 those furnished by the master of judicial statistics in England affords 
 striking evidence of the widely different attitude taken by the English 
 appellate courts toward the question of error. In the year 1900, of 
 
 1 Atlantic Monthly, Vol. XCVII, p. 502. 2 Commission on Law's Delay, p. 246. 
 
THE CRIMINAL LAW 
 
 195 
 
 337 cases appealed from the high court of justice only 15 were re- 
 manded for retrial, and in 1904, of 555 cases reviewed by the court of 
 appeal only 9 were remanded for new trials.^ Federal Judge Amidon, 
 of North Dakota, in an address before the Minnesota Bar Association 
 last year, stated that he had personally examined the law reports of 
 England, covering the period from 1890 to 1900, with the result that 
 he found that of all the cases reviewed on appeal in that country new 
 trials were granted in less than 3 J per cent. It is a rule of the Eng- 
 lish procedure that no judgment or verdict of a lower court shall be 
 disturbed or a new trial granted for error if there were sufficient evi- 
 dence to justify the judgment or verdict, or if evidence erroneously ex- 
 cluded would not, in the opinion of the appellate court, have changed 
 the result if it had been admitted. In other words, judgment is ren- 
 dered on the merits of the case, and not on mere considerations of tech- 
 nical error in the record or upon questions collateral thereto. Instead of 
 presuming that error in the trial below is prejudicial to the defendant, 
 the presumption is that it is harmless, and it is incumbent upon the 
 appellant to show the contrary. 
 
 One of the re sults of the stric t enfnrrpmpnt- n f this rule by the Eng - 
 lish appellate cou rts is a reducti on in the mimbp r of cases appealed . 
 A defeated party who has no case on its merits can have no incentive 
 to take an appeal. He knows well that there is no chance of securing a 
 reversal upon immaterial errors of the court below. The consequence is 
 that not more than one case in ten is appealed from the high court, 
 whereas in New York state it is said that on an average 33 per cent 
 of the cases tried in the first department of the supreme court are 
 appealed.^ The English procedure does not allow a bill of exceptions 
 to be filed and argued. If there is dissatisfaction with the verdict or 
 judgment, application may be made to the appellate court in writing, 
 accompanied by copies of the pleadings and evidence made from steno- 
 graphic reports. 
 
 Moreover, the English appellate judge has all the powers of the tria l 
 jiujg^p^ndjie ma y make any order o r jiiHgmpnt which ought to have 
 been made by th e trial court. If by reason of error below a wrong judg- 
 ment was entered, the appellate court may enter the judgment which 
 justice requires instead of sending the case back for retrial upon errors 
 which were not clearly prejudicial to the right of the accused. In other 
 words, the English appellate courts proceed on the principle that it is their 
 business to administer justice as well as the law, — a sensible rule, which 
 originally existed at common law, but, like many of the other common-law 
 rules of legal procedure, has been changed by statute or custom. 
 
 1 Letter of T. Newton Crane to Ambassador Choate, cited above (N. Y. Commission 
 on Law's Delay, p. 112). 
 
 2 Report Commission on Law's Delay, pp. 34, 76, 246. In all England in 1903 there 
 were only 1272 cases appealed to the higher courts, while in tvi'O departments of the New 
 York appellate division (New York City and Brooklyn) there were 2952 appeals. 
 
f 
 
 196 AMERICAN STATE GOVERNMENT 
 
 It is gratifying to note that a be^nning- is beinp made in so me of the 
 s tates to_ w ard reforming- the ah n ^pg "f apppllatp proreHiire. T hus the 
 code ot mminal procedure of New York (Section 542) declares that in 
 I capital cases the appellate court must give judgment without regard to 
 technical errors or defects, or to exceptions which do not affect the sub- 
 stantial rights of the parties ; and under the practice of the court of 
 appeals the obligation rests on the appellant to show that the error 
 complained of was prejudicial, that is, that but for the error the result 
 would have been different. The same principle has been embodied in 
 the new law for the establishment of the Chicago municipal court. This 
 law provides that no order or judgment of the municipal court shall be 
 reversed by the appellate court or the supreme court unless they shall 
 be satisfied that the order or judgment was contrary to law and the 
 evidence, or resulted from substantial errors directly affecting the mat- 
 ters at issue. Moreover, the appellate court is empowered to enter 
 such order or judgment as, in its opinion, the municipal court ought to 
 have entered, instead of sending the case back for retrial. There seems 
 to be no good reason why the rule in New York should not be extended 
 to cover the review of other than capital cases, and that the rule in 
 Illinois should not apply to cases appealed from other than the 
 municipal court of Chicago. 
 
 I t is the testimony of the best lawyers and juris ts thrniighniit the 
 c ountry that the interests of justice and social order require a restrict ion 
 of the right of appeal to more reasonable limit s! Justice Gaynor, of 
 New York, in his testimony before the Commission on the Law's Delay, 
 stated the matter tersely when he declared that appellate courts review 
 too many things, and that in our present procedure " appeals have come 
 to be pretty nearly the principal thing." ' Attorney Hirschbe rg, testify- 
 ing before the same commission, asserted that the great difficulty with 
 our procedure was that it is " distinctly an appellate system," that it is 
 based upon the " fundamental idea that a trial and a decision are always 
 wrong," and that as a result of the opportunities thus afforded the temp- 
 tation to indulge in litigation is vastly enhanced.'^ To the same effec t 
 
 W ^S the opinion of Tus tirp O'Gnrman who st^fprl that nparly pvpry 
 d efeated party was willi ng to take a rha nre of sp riiring a rpvprspi1_rvn 
 
 appe al, anH^at they had every encouragement to do so.° Dean Huffcut, 
 in an address already referred to, declared that the remedy for the evil 
 described was to provide that any appeal not brought on for hearing 
 within six months after it is taken, should be stricken from the files, and 
 that in addition it should be provided that no case should be reversed 
 unless it is affirmatively shown upon the whole record that the error 
 complained of has been prejudicial to the defendant and has resulted in 
 a miscarriage of justice. If this were done, he declared, appeals would 
 not only be fewer in number, but would also be more speedily pressed 
 
 1 Report Commission on Law's Delay, p. 267. 2 ibid., p. 269. 3 Ibid., p. 319. 
 
THE CRIMINAL LAW 197 
 
 and with smaller chance of success.^ President Roosevelt in his last 
 annual message strongly recommended' the incorporation ot this rule " 
 'into federal procedure, and bills for its introduction into state procedu re 
 are now before the legislatures of a number of states . The want of it is, 
 as a well-known jurist has observed, more responsible than any other 
 one cause for the courts which are conducted by Judge Lynch. ^ It is 
 the America n practice to allow appeals as a matter of course, with littl e 
 fggaid lo Ihemerits of the case. This pnvile gf shnniH hp limif-pH ag ip 
 J ingiand, to cases where thp trial judge in his discretion reservp;; for 
 review by the higher court some question of law whirh he rnnsirlpr g 
 doubtful and has decided adversely to the defenrlanf ° It is no infringe- 
 ment upon the right of any person who has been convicted by the unani- 
 mous verdict of a jury chosen from his neighborhood, to say that he 
 shall not be given another chance to establish his innocence, unless it 
 can be affirmatively shown that substantial justice was not done in the first 
 trial. The present wide latitude of appeal, although in theory open to all, 
 is in fact practically closed to the poor litigant on account of the expense 
 involved. The rule thus operates to the great advantage of the well-to-do 
 litigant by opening an avenue of possible escape which is in practice de- 
 nied to the man without means. It is a common saying which is bec oming 
 true r all the time, that the rich crirn ingLwitl-i unlimited^ means_atJais 
 d isposal c an, through the process of appeals and ne w trials, escag e the 
 punishmenTwhich he deserves and which he would r ^fpnrp it Tie were 
 a poorman.'* Any system of criminal justice which makes possibl e 
 any such inequality in the administration of the criminal law is fun da- 
 mentally wrong in princip le and dan gerou s in prartirp It not only 
 encourages lawlessness among the upper classes, but impairs the confi- 
 dence of the lower classes in the courts and promotes the spirit of lynch 
 law and anarchy among them. Some valuable lessons might well be 
 learned by our legal reformers from the English and continental practice. 
 It has not been very many years since England was agitated over the 
 situation arising from the virtual breakdown of her judicial machinery, 
 but they set about in a quiet way to make improvements, with the result 
 that they have brought their judicial system up to a plane of efficiency 
 which has not yet been attained in any American state. The New York 
 State Commission on the Law's Delay reported that it had been " pro- 
 foundly impressed" by the character and results of the English procedure, 
 
 ' Ithaca Evening Journal, December 6, 1906. 
 
 2 Michigan La^v Review, Vol. Ill, p. 262. 
 
 8 Compare Smyth, " The Abuse of New Trials," Harvard Law Review, Vol. XVII, p. 317. 
 
 4 Speaking on this point to the students of Cornell University, Ex-President Andrew 
 D. White recently said ; " While the number of murders is rapidly increasing, the procedure 
 against them is becoming more and more ineffective, and, in the light of recent cases iti New 
 York and elsewhere, is seen to be a farce. One of the worst results of these cases is the 
 growing opinion among tlie people at large that men with money can so delay justice by 
 every sort of chicanery that there is a virtual immunity from punishment for the highest 
 crimes," 
 
1 98 AMERICAN STATE GOVERNMENT 
 
 and declared that the English courts, from having been the most dilatory 
 in the world, had become in recent years the most expeditious, and 
 expressed the opinion that we " could not do better than adopt some 
 of these modern methods of procedure which have been so thoroughly 
 tested in England and ha\e proven to work so well." ^ 
 
 The English have largely freed their procedure from technicalities, have 
 simplified and made it less cumbersome and expensive, have raised the 
 judge to a more commanding position in the conduct of the trial and 
 assigned the jury its true place, have abolished the doctrine of presumed 
 error, restricted the privilege of appeal to more reasonable limits, and in 
 various other ways provided a procedure which, to an American lawyer 
 accustomed to the delays and uncertainties of our system, seems won- 
 derful indeed.^ The procedure of the German courts since the adoption 
 of the imperial codes presents many features analogous to that of Eng- 
 land. There are no technicalities in pleading; the judge participates in 
 determining what shall be proved, and when and in what manner the 
 proof is to be made ; the rules of evidence are simple, trials are promptly 
 started and rapidly expedited, and criminals are punished with a degree 
 of certainty unknown in America.' In France, likewise, the criminal law 
 is administered in a way which serves as an effective deterrent of crime, 
 and secures general respect for law and authority. 
 
 Before we may hope for a thoroughgoing reform of the American sys- 
 tem there must be an entire change of attitude upon the part of the 
 people with regard to the enforcement of law, the rights of the commu- 
 nity as against criminals, and the purpose of judicial punishment. The 
 bench and bar must also take a more common-sense view of the whole 
 question of the fundamental purpose of a judicial trial. There must be 
 less disposition to subordinate substantive justice to mere matters of 
 practice. It is also worth considering whether the time has not come 
 when some of the presumptions of our law should not be resolved in 
 favor of the community rather than in favor of the criminal, and whether 
 we should not act more upon the principle that the primary purpose of 
 a system of criminal justice is to protect the innocent members of society 
 rather than the criminal class. Our present methods had their origin in 
 an age when the number of capital crimes was appallingly large, and 
 when offenders were disproportionately punished for minor offenses. To 
 make it difficult to punish persons charged with crime in such an age a 
 
 1 Report Commission on Law's Delay, pp. 32, 34. 
 
 2 The New York Commission on the Law's Delay, speaking of the English system, 
 declared that " it has undergone many important changes in practice to meet the require- 
 ments of modem social and business conditions in England, and that much of our own 
 practice, time-honored and tolerated because ' made in England,' has been displaced by more 
 modem methods of procedure, and is obsolete in the land from which it came, — changes 
 which have worked havoc with many venerable notions and reversed precedents to which 
 our American courts fondly cling" (p. 75). 
 
 3 Compare an article by Rudolf Dillon in the Twenty-fifth Annual Report of the New 
 York State Bar Association. 
 
THE CRIMINAL LAW 
 
 199 
 
 procedure was developed which provided every possible loophole of 
 escape for the accused. The old severity of penal legislation, however, 
 has long ago been abolished, yet the old methods of procedure, with all 
 the safeguards which they threw around the criminal, are still retained. 
 They are totally inapplicable to present conditions, and in the interest of 
 real justice as well as social security they ought to be modified as they 
 have been in England, where they originated. Our duty in the premises 
 was well stated by President Roosevelt in a letter to Governor Durbin of 
 Indiana in August, 1903. He said : 
 
 The best and immediate efforts of all legislators, judges, and citizens should 
 be addressed to securing such reforms in our legal procedure as to leave no 
 vestige of excuse for those misguided men who undertake to reap vengeance 
 through violent methods. We must show that the law is adequate to deal with 
 crime by freeing it from every vestige of technicality or delay. 
 
 THE JUVENILE COURT ^ 
 By Julian W. Mack 
 
 Most of the children who come before the court are, naturally, the 
 children of the poor. In many cases the parents are foreigners, frequently 
 unable to speak English. These poor people have not been able to give 
 to their offspring the opportunities and the supervision that many chil- 
 dren enjoy. The parents often do not understand our American meth- 
 ods and views. What they need, more than anything else, is kindly 
 assistance ; and the aim of the court in appointing a probation officer for 
 the child is to have the child and the parents feel not so much the power 
 as the friendly interest of the state; to show them that the object of the 
 court is to help them to train the child right ; and therefore the probation 
 officers must be men and women fitted for these tasks. 
 
 Their duties are oftentimes of the most delicate nature. Tact, forbear- 
 ance, and sympathy with the child, as well as a full appreciation of the 
 difficulties that the poorer classes, and especially the immigrants, are con- 
 fronted with in our large cities, are indispensable. The New York Pro- 
 bation Commission say, in their second annual report for the year 
 1908, p. 32: 
 
 In courts where the probation system is most effectively conducted there is 
 great variety in the work done by probation officers. The most successful 
 workers regard the receiving of reports from probationers as much less impor- 
 tant than the visiting and other work done by the probation officers. The pro- 
 bation officers obtaining the best results enter into intimate friendly relations 
 with their probationers, and bring into play as many factors as possible, such 
 as, for instance, securing employment for their probationers ; readjusting family 
 difficulties; securing medical treatment or charity, if necessary; interesting helpful 
 
 1 From a paper before the American Bar Association, 1909. 
 
200 AMERICAN STATE GOVERNMENT 
 
 friends and relatives : getting the cooperation of churches, social settlements, 
 and \-arious other organizations ; encouraging probationers to start bank accounts, 
 to keep better hours, to associate with better companions, and so forth. 
 
 Mr. Homer Folks, chairman of this commission, and perhaps the lead- 
 ing authority in the country on child-saving work, put the matter well 
 when he said (Conference of Charities and Correction, igo6, p. 117): 
 
 It is the personal influence of the probation officer, going into the child's 
 home, stud)ing the surroundings and influences that are shaping the child's 
 career, discovering the processes which have been exercising an unwholesome 
 influence, and, so far as possible, remedying these conditions, — this is the very 
 essence of the probation system. The friendly side of the probation officer's 
 work is its important side. His duty is by no means simply that of securing 
 information for the court as to the child's conduct, but that of securing refor- 
 mation. He is not to be a dispassionate observer, but an active influence. 
 \\'ithout such work on the part of probation officers, without probation officers 
 qualified to conduct such work and to carry it on consistently and without 
 intermission, the court is practically helpless. . . . 
 
 The probation system is really a new way of treating offenders. It provides 
 a new kind of reformatory, without walls and without much of coercion, but 
 nevertheless seeking to bring to bear upon each child the influences which will 
 make for his betterment, and seeking to provide for him, so far as possible in 
 his own home, opportunities and facilities for education and discipline, which 
 we have heretofore provided only in an institution. . . . 
 
 The work of the probation officers must therefore begin, if it does not begin 
 earlier, the very moment the child leaves the court. It must utilize to the full- 
 est degree whatever advantages there are in the shock caused by apprehension 
 of the child, by the court proceedings, and the judge's counsel. It must, by 
 force of personal influence and in whatever ways may be possible, build up a 
 strong influence in the home of the child. 
 
 While the paid, trained worker is to-day recognized as essential in all 
 fields of philanthropy, nevertheless, to obtain the fullest measure of 
 success, the active cooperation of the charitably inclined, as volunteer 
 assistants, must be secured, particularly in our large cities where the 
 authorities have been disinclined to provide for a sufficient number of 
 paid probation officers, with the result that there are frequently assigned 
 from one to two hundred cases to the officer of a district, far too many 
 for one man or woman to care for thoroughly. 
 
 If for every boy and girl that comes into court there can be found 
 one real friend, imbued with the spirit of human brotherhood, — a phrase 
 that passes our lips so readily, but is achieved in the lives of so few of 
 us, — willing to give not that which is so easy for any one who has a 
 surplus above his needs, money, but that which is hardest for most of 
 us to part with, our time, our thought ; who will occasionally take the 
 lad into his own home, or with his own boys to the ball game or to 
 the theater ; who will help him to find a job, who will be genuinely 
 
THE CRIMINAL LAW 201 
 
 interested in him and in seeing that his father and his mother do their 
 duty toward him, the problems of the court will be well-nigh solved. 
 
 In a number of communities juvenile-court committees have been 
 formed by public-spirited citizens for the purpose of conferring with the 
 probation officers, assisting in and coordinating their work, helping the 
 judge, and, where the public authorities fail to provide paid probation 
 officers, supplying the necessary funds. In this way the probation offi- 
 cer is not left to his or her unaided judgment and effort in the perform- 
 ance of these most difficult and delicate tasks. Moreover, supervision 
 is secured for the work, and the danger of its running into ruts and 
 becoming perfunctory is checked. 
 
 Just a few words about the actual court procedure and practice. In 
 the first place, the number of arrests is greatly decreased. The child 
 and the parents are notified to appear in court, and unless the danger of 
 escape is great, or the offense very serious, or the home totally unfit for 
 the child, detention before hearing is unnecessary. Children are permitted 
 to go on their own recognizance or that of their parents, or on giving 
 bail. Probation officers should be and often are authorized to act in 
 this respect. If, however, it becomes necessary to detain the children 
 either before a hearing or pending a continuance, or even after the 
 adjudication, before they can be admitted into the home or institution to 
 which they are to be sent, they are no longer kept in prison or jails, but 
 in detention homes. In some states the laws are mandatory that the local 
 authorities provide such homes, managed in accordance with the spirit 
 of this legislation. They are feasible even in the smallest communities, 
 inasmuch as the simplest kind of building best meets the need. In this 
 building the court may be held, as is done in some of the larger cities. 
 
 The jurisdiction to hear the cases is generally granted to an existing 
 court having full equity powers. In some cities, however, special courts 
 have been provided, with judges devoting their entire time to this work. 
 If these special courts can be constitutionally vested with full and com- 
 plete chancery and criminal jurisdiction, much is to be said in favor of 
 their establishment. In the large cities particularly, the entire time of 
 one judge may well be needed. It has been suggested from time to time 
 that all of the judges of the municipal or special sessions courts be em- 
 powered to act in these cases ; but while it would be valuable in metro- 
 politan communities to have more than one detention home, more than 
 one courthouse, nevertheless it would seem to be even more important 
 to have a single juvenile-court judge. The British government has 
 adopted this policy for London. Mr. Herbert Samuels stated (Hansard, 
 4th ser., Vol. 186, p. 1298) during the debate on the Children's Act: 
 
 It is impossible to bring all the children, witnesses, parents, probation 
 officers, and other persons concerned into one central court. The best course 
 will be to establish four places of detention in different parts of London. . . . 
 I hope it will be practicable in these places to provide rooms, without any 
 
202 AMERICAN STATE GOVERNMENT 
 
 additional cost, or very small additional cost, which can be used as courthouses. 
 The children's magistrate could visit in turn these four houses. . . . The 
 result would be that a certain number of children would be kept over night 
 sometimes, when they could not be released on bail ; but all those that I have 
 consulted agreed . it is better to keep, if necessary, a small number of 
 children in detention for one night than to forego the great benefit of having 
 a special magistrate to deal with these cases. 
 
 By the Colorado Act of 1909 provision is made for hearings before 
 masters in chancery, designated as masters of discipline, to be appointed 
 by the juvenile-court judge and to act under his direction. This may 
 prove to be the best solution of a difficult problem, combining, as it 
 does, the possibility of a quick disposition of the simpler cases in many 
 sections of a large city or county, with a unity of administration through 
 the supervisory power of a single judge. 
 
 The personality of the judge is an all-important matter. The supreme 
 court of Utah, in the case of Mill vs. Brown, supra, commenting upon 
 the choice of a layman, a man genuinely interested in children, pointed 
 out that : 
 
 To administer juvenile laws in accordance with their true spirit and intent 
 requires a man of broad mind, of almost infinite patience, and one who is the 
 possessor of great faith in humanity and thoroughly imbued with that spirit. 
 
 The judge of any court, and especially a judge of a juvenile court, should 
 be willing at all times not only to respect, but to maintain and preserve, the 
 legal and natural rights of men and children alike. . . . The fact that the 
 American system of government is controlled and directed by laws, not men, 
 cannot be too often or too strongly impressed upon those who administer any 
 branch or part of the government. Where a proper spirit and good judgment 
 are followed as a guide, oppression can and will be avoided. . . . 
 
 The juvenile-court law is of such vast importance to the state and society 
 that it seems to us it should be administered by those who are learned in the 
 law and versed in the rules of procedure, to the end that the beneficent pur- 
 poses of the law may be made effective and individual rights respected. Care 
 must be exercised in both the selection of a judge and in the administration 
 of the law. 
 
 The decision but emphasizes the dangers that beset the path of the 
 judge of the juvenile court. The public at large, sympathetic to the 
 work, and even the probation officers who are not lawyers, regard him 
 as one having almost autocratic power. Because of the extent of his 
 jurisdiction and the tremendous responsibility that it entails, it is, in my 
 judgment, absolutely essential that he be a trained lawyer, thoroughly 
 imbued with the doctrine that ours is " a government of laws and not 
 of men." 
 
 He must however be more than this. He must be a student of, and 
 deeply interested in, the problems of philanthropy and child life, as well 
 as a lover of children. He must be able to understand the boy's point 
 of view and ideas of justice ; he must be patient and walling to search 
 
THE CRIMINAL LAW 203 
 
 out the underlying causes of the trouble and to formulate the plan by 
 which, through the cooperation, ofttimes, of many agencies, the cure may 
 be effected. 
 
 In some very important jurisdictions the vicious practice is indulged 
 in of assigning a different judge to the juvenile-court work every month 
 or every three months. It is impossible for these judges to gain the 
 necessary experience or to devote the necessary time to the study of the 
 new problems. The service should, under no circumstances, be for less 
 than one year, and preferably for a longer period. In some of our cities, 
 notably in Denver, the judge has discharged not only the judicial func- 
 tions, but also those of the most efficient probation officer. Judge Lind- 
 sey's love for the work and his personality have enabled him to exert a 
 powerful influence on the boys and girls that are brought before him. 
 While doubtless the best results can be obtained in such a court, lack 
 of time would prevent a judge in the largest cities from adding this to 
 his strictly judicial duties, even were it not extremely difficult to find 
 the necessary combination of elements united in one man. 
 
 The problem for determination by the judge is not. Has this boy or 
 girl committed a specific wrong, but, What is he, how has he become 
 what he is, and what had best be done in his interest and in the interest 
 of the state to save him from a downward career ? It is apparent at 
 once that the ordinary legal evidence in a criminal court is not the sort 
 of evidence to be heard in such a proceeding. A thorough investigation, 
 usually made by the probation officer, will give the court much infor- 
 mation bearing on the heredity and environment of the child. This, of 
 course, will be supplemented in every possible way ; but this alone is not 
 enough. The physical and mental condition of the child must be known, 
 and it is therefore of the utmost importance that there be attached to 
 the court, as has been done in a few cities, a child-study department, 
 where every child, before hearing, shall be subject to a thoroughly 
 scientific psychophysical examination. 
 
 The relation between physical defects and criminality is a very close 
 one. Take the boy suffering with adenoid growths, whose parents, 
 through ignorance or neglect, know nothing about it ; he can't breathe 
 properly ; his nerves are affected ; he can't sit still ; the schoolroom has 
 too many pupils for one teacher (that is the trouble with all our public 
 schools) ; a lack of harmony follows, — what is more natural than tha^ 
 that boy should play hooky ? And truancy is often the first step toward 
 a career of criminality. In hundreds and thousands of cases the dis- 
 covery and remedy of defective eyesight or hearing or some slight sur- 
 gical operation will effectuate a complete change in the character of 
 the lad. 
 
 The child who must be brought into court should of course be made 
 -to know that he is face to face with the power of the state, but he 
 should, at the same time, and more emphatically, be made to feel that he 
 
204 AMERICAN STATE GOVERNMENT 
 
 is the object of its tender care and solicitude. The ordinary trappings of 
 the courtroom are out of place in such hearings. The judge on a bench, 
 looking down upon the boy standing at the bar, can never evoke a 
 proper sympathetic spirit. Seated at a desk, with the little one at his 
 side, where he can on occasion put his arm around his shoulder and 
 draw the lad to him, the judge, while losing none of his judicial dignity, 
 will gain immensely in the effectiveness of his work. 
 
 It is, however, of far greater importance to keep children out of any 
 court than to bring them even into the juvenile court. In many com- 
 munities the influence of the probation officers in their immediate sur- 
 roundings has been such that they have become arbiters of the petty 
 disputes and quarrels that in former years brought not only the children 
 but their parents into conflict and into court. 
 
 The object of the juvenile court and of the intervention of the state 
 is, of course, in no case to lessen or to weaken the sense of responsibility 
 either of the child or of the parent. On the contrary, the aim is to 
 develop and to enforce it. Therefore it is wisely provided in most of 
 the recent acts that the child may be compelled when on probation, if 
 of working age, to make restitution for any damage done by it. More- 
 over, the parents may not only be compelled to contribute to the support 
 even of the children who are taken away from them and sent to institu- 
 tions, but since the Colorado Act of 1903 they, as well as any other 
 adults, may be made criminally liable for their acts or neglect contribu- 
 ting to a child's dependency or delinquency. In most of the jurisdictions 
 which have established separate juvenile courts, as well as in some of 
 the others, all criminal cases affecting children are tried by the juvenile- 
 court judge. In drafting legislation of this kind, however, it must not be 
 overlooked that if the proceedings against the adult are criminal, his 
 constitutional rights must be carefully safeguarded. Following general 
 principles, such penal acts are strictly construed, and therefore in the 
 recent case of Gibson vs. People, 99 Pac. 333 [1909], the Colorado 
 supreme court limited the application of the act of 1903 to the parents 
 and those standing in a parental relation to the child. Colorado, in 1907, 
 however, as well as several other states, expressly extended the scope 
 of such statutes so as to include any person, whether standing in loco 
 parentis or not. The supreme court of Oregon, in State vs. Dunn, 99 
 Pac. 278 [1909], construed such legislation to refer only to misconduct 
 not otherwise punishable. 
 
 Kentucky in 1908, followed by Colorado in 1909, has enacted a 
 statute drafted by Mr. Bernard Flexner, of Louisville, — one of the few 
 prominent members of the bar who have taken a profound and active 
 interest in the work of the juvenile court, and to whom I am greatly in- 
 debted for assistance in securing material for this paper, — providing for 
 the enforcement of parental obligations not in the criminal but in the 
 chancery branch of the juvenile court. A decree not merely for the 
 
THE CRIMINAL LAW 
 
 205 
 
 payment of support money, but for the performance or omission of 
 such acts, as under the circumstances of the case are found necessary, 
 may be enforced by contempt proceedings. 
 
 Valuable, however, as is the introduction of the juvenile court into 
 our system of jurisprudence, — valuable both in its effect upon the child, 
 the parents and the community at large, and in the great material saving 
 to the state vifhich the substitution of probation for imprisonment has 
 brought about, — nevertheless it is in no sense a cure-all. Failures will 
 result from probation just as they have resulted from imprisonment. 
 As Judge Lindsey has said (Juvenile-Court Laws, etc., p. 23) : 
 
 It does not pretend to do all the work necessary to correct children or to 
 prevent crime. It is offered as a far superior method to that of the old criminal- 
 court system of dealing with the thing rather than the child. That method 
 was more or less brutal. The juvenile-court system has a danger in becoming 
 one of leniency, but as between this method and that of the criminal court it 
 is much to be preferred. But the dangers of leniency as well as those of 
 brutality can be avoided in most cases. Juvenile-court workers must not be 
 sentimentalists any more than brutalists. In short, the idea is a system of pro- 
 bation work which contemplates cooperation with the child, the home, the 
 school, the neighborhood, the church, and the business man in its interests 
 and that of the state. Its purpose is to help all it can and to hurt as little as 
 it can ; it seeks to build character, — to make good citizens rather than useless 
 criminals. The state is thus helping itself as well as the child, for the good of 
 the child is the good of the state. 
 
 But more than this, the work of the juvenile court is, at the best, 
 palliative, curative. We take these little human beings that are going 
 the downward path and we try — and I think to some extent succeed 
 — in saving them from going farther down. But that is not the most 
 important task. The vital thing is to prevent them from reaching that 
 condition in which they have to be dealt with in any court ; and we are 
 not doing our duty to the children of to-day, the men and women of 
 to-morrow, when we neglect to destroy the evils that are leading them 
 into careers of delinquency, when we fail not merely to uproot the 
 wrong, but to implant in place of it the positive good. 
 
 It is well that we have these schools for the delinquent boy and girl ; 
 it is well that when they get into them they receive a thorough technical 
 training, so that they are fitted for something afterwards. But it would 
 be infinitely better if all children could receive that kind of an education 
 before they reach the court ; it would be infinitely better if we checked 
 delinquency in its incipiency, and the incipiency generally is truancy. 
 
 To do this we must make the school interesting, — more interesting 
 than it is to-day ; we must provide for those children who cannot sit at 
 their desk all day long with only mental work ; we must put manual 
 training right through the entire school system, so that there will be an 
 outlet for their nervous energies, so that they will have something to 
 
2o6 AMERICAN STATE GOVERNMENT 
 
 work on with their hands instead of merely with the brain ; and we 
 must have the physician and the nurse in the school. We must not wait 
 until the physical or mental troubles produce a state of delinquency and 
 are discovered by the physician connected with the court. 
 
 And then, what is to be expected of the boys if they are not given a 
 proper place to play ? If they are going to be driven into the streets, natu- 
 rally they will come into contact with the policeman, naturally there will 
 be trouble, and the heroism and hero-worship that follows trouble with 
 the public authorities. And when that sort of heroism begins, they have 
 stepped onto the highroad to criminality. How shall they be halted ? 
 By giving the boys and girls proper playgrounds, not only in our cities 
 but in our towns and villages ; by giving them the small parks with 
 their swimming pools and their skating rinks and their assembly halls 
 and their gymnasiums ; by thus giving them a chance to convert the 
 ''gang," which can't be eradicated, — it is not human to go alone, the 
 crowd is the natural thing, — to convert the " gang " into a team pulling 
 together for good instead of working together for evil. That is the result 
 that has been obtained wherever these small parks have been established, 
 especially in the congested districts of the cities. The boys get what they 
 need. The appeal is made to their manhood and their honor. In every 
 community there are needed separate ungraded rooms for the backward 
 children, vacation and night schools, proper child-labor and compulsory- 
 education laws, above all a living wage for the worker, and many more 
 things I should like to touch upon in this connection, had I the time. 
 
 Just one more point. The number of girls that go wrong in a large 
 city is enormous. The majority of them do not start in from love of lust, 
 but from love of joy, — the joy of life that is in every normal human 
 being. Take the girl that is working all day long and then comes home 
 to two or three rooms occupied by a large family in the slum districts 
 that the city fails to keep clean ; she does n't want to stay there every 
 evening ; she wants to go out ; she wants that pleasure and happiness that 
 our girls want, she likes the dance and the play just as much as do our 
 girls. We let our girls enjoy themselves in a decent way under decent 
 surroundings, but what do we do for these girls ? The public dance hall 
 offers them the joy and the lights and the pleasures ; but if the good 
 citizens of the town will offer them those joys, — those decent, innocent 
 pleasures, — in a decent way and under proper influences, as do our settie- 
 ments scattered throughout our large cities, and some of the churches, 
 the girls will choose the latter nine times out of ten, aye ninety-nine times 
 out of the hundred. But they must have some outlet for their energy, 
 some satisfaction for this cry for joy and happiness, and if we do not 
 give it to them, they will get it in another way. 
 
 In a number of communities juvenile protective leagues have been 
 established to carry on this preventive work of seeing to it that conditions 
 injurious to child life are remedied, that offenses against children are 
 
THE CRIMINAL LAW 207 
 
 punished, that the compulsory-education and child-labor laws, without 
 which juvenile-court legislation is well-nigh worthless, are properly en- 
 forced ; and to promote this constructive work of furnishing the largest 
 opportunities for the full and complete development of a happy childhood. 
 
 I have touched upon some of the positive needs that mean so much 
 in the growth of the child ; through them may come the prevention of 
 that delinquency for which the juvenile court offers merely a cure. And 
 it is to a study of the underlying causes of juvenile delinquency, and to 
 a realization of these preventive and positive measures, that we, the 
 trained professional men, following the splendid lead of many of our 
 European brethren, should give some thought and some care. The work 
 demands the united and aroused efforts of the whole community, bent on 
 keeping children from becoming criminals, determined that those who 
 are treading the downward path shall be halted and led back. 
 
 To quote again from the debates on the Children's Bill in the House 
 of Commons (Hansard, 4th ser., Vol. 186, p. 1262): 
 
 We want to say to the child that if the world or the world's law has not 
 been his friend in the past, it shall be now. We say that it is the duty of this 
 parliament, and that this parliament is determined, to lift, if possible, and 
 rescue him, to shut the prison door and to open the door of hope. 
 
 THE PAROLE LAW OF ILLINOIS ^ 
 By E. a. Snively" 
 
 The parole law was the outgrowth of the progressive and reformative 
 views of those who believed that severe and unusual punishment would 
 not reform men and women. It was the natural result of the same spirit 
 which abolished the stocks and whipping post. 
 
 In this state it was first applied to the Illinois State Reformatory at 
 Pontiac, where the definite sentence was abolished and the indeterminate 
 sentence was substituted. 
 
 In 1895, upon recommendation of Governor Altgeld, the principle 
 was applied to the Joliet and Chester prisons, and all persons convicted 
 of a felony, except those convicted of treason, murder, and rape, were 
 merely sentenced to the penitentiary with the proviso that they should 
 serve the minimum sentence provided by law, but should not serve longer 
 than the maximum. As the law did not take effect until July, 1895, and 
 as there were few courts held until later in the fall of the year, there 
 were but few persons convicted whose minimum expired prior to July, 
 1897. Under the act of 1895 the penitentiary commissioners were re- 
 quired to administer the parole law, but the legislature of 1897 amended 
 the law so that this work fell to the Board of Pardons. 
 
 1 Address before the Sangamon County Bar Association, 1906. 
 
 2 Member Illinois State Board of Pardons, 
 
2o8 AMERICAN STATE GOVERNMENT 
 
 The old law was as vicious a piece of legislation as was ever enacted. 
 It was vicious because its enforcement gave the most gross inequality in 
 sentences. It was vicious because it made criminals instead of reforming 
 men. It was vicious because it gave the habitual criminal a short sentence, 
 while the first offender most frequently received a long sentence. Let 
 me call attention to a few facts which are within the knowledge and 
 observation of every member of the bar who has been practicing for a 
 half dozen years. Since the present constitution was adopted and the 
 office of state's attorney for each county has succeeded to the former 
 provision of a state's attorney for each circuit, about 25 per cent of 
 the state's attorneys have been young men, — bright, smart, intelligent, 
 but yet without having had much previous experience. The reason for 
 this is found in the small compensation, the older and more able attorneys 
 not caring for the office in view of the great amount of work for the 
 income. 
 
 In many cases the young official found himself matched against the 
 ablest member of the bar. When this occurred it was in nearly every 
 case where the offender was a man with a criminal record. The result 
 would often be that the state's attorney would be only too willing to accept 
 a plea of guilty and have the man receive a sentence of one or two years. 
 The very next case might be one where some fellow, filled with cheap 
 whisky, had committed some minor felony ; he was poor and had no 
 money to employ a lawyer, and the court in nearly every instance appoints 
 some young and inexperienced member of the bar. The prior conviction, 
 the plea of guilty and the short sentence, had caused indignation in the 
 community, and this feeling permeates the courtroom. The second man 
 goes to trial; the state's attorney is equal if not superior, in point of 
 ability and experience, to the attorney for the defense. The evidence 
 is heard, the jury retires, not only to consider their verdict, but with a 
 determination to see that " the majesty of the law is vindicated," and 
 they bring in a verdict giving the poor fellow a ten years' sentence. 
 
 When these men came to compare notes, the first would let it be 
 known that he had committed numerous crimes and had before served 
 in prison. The second man had never before transgressed the law, and 
 the law itself did not recognize his crime to be as great as that of the 
 other, and yet he had received five times the punishment. He be- 
 came embittered against the law. During his long nights in his lonely 
 cell he again and again contrasted his lot with that of the other, and 
 when he was released he went out determined to wreak vengeance against 
 society for what he felt was his unjust if not inhuman punishment. He 
 never permitted himself to go back to the circumstance of his conviction ; 
 he never reflected that the friends of the other man had come to his 
 rescue and had secured for him the best legal talent, while the young 
 man who had defended him was entirely without experience. He only 
 knew and only thought of the small crime he had committed and his own 
 
THE CRIMINAL LAW 209 
 
 blameless past record, and its result of a long sentence as contrasted 
 with the criminal career of the other one and his short sentence. 
 
 Another important factor always entered into the trial, if the state's 
 attorney would not accept a plea of guilty, where the prominent criminal 
 lawyer was employed. The attorney would never fail to have one or 
 more friends on the jury, who would stand out for an acquittal or a short 
 term, and a compromise verdict would result, and the compromise was 
 always for a short sentence. 
 
 Let me illustrate another vicious feature of the old law. A number of 
 years ago the farmers succeeded in having the law so amended that the 
 minimum term for horse stealing was fixed at three years. In this county 
 a man might steal the most disreputable old horse ever seen on the streets ; 
 he was indicted for horse stealing, and, if found guilty, would have to serve 
 at least a three years' sentence. In one of the adjoining counties a man 
 might steal the finest imported horse that ever left the shores of France ; 
 he could be indicted for larceny and receive a year's sentence. 
 
 The habitual-criminal act failed in very many instances to solve the 
 problem for which it was enacted, while in many other cases it only 
 worked as a means of oppression. A man might have served a number 
 of terms in other states, or even in this state, and the state's attorney 
 know nothing of it, and consequently no allegation could be made in the 
 indictment. The strange and unexplained feature of the habitual-crimi- 
 nal act was that it applied only to burglary, grand larceny, horse stealing, 
 robbery, forgery, and counterfeiting, leaving out the crimes of manslaugh- 
 ter, rape, and a number of other crimes which are as serious as those 
 embraced in the act. If a man was sentenced from this county for any 
 of the crimes embraced in the habitual-criminal act, and afterwards com- 
 mitted a like crime in the county, he could very easily be convicted as an 
 habitual criminal ; but if he had committed the first crime in some other 
 county, the probability would be he would not be indicted under the ha- 
 bitual-criminal act ; and if he had committed crimes and served terms in 
 other states, he was quite certain not to be indicted under that act. When 
 one man was indicted under the act and convicted, and another man, at 
 the same term of court, who had served previous terms was not so indicted, 
 you emphasized the inequality of sentences in a marked degree and 
 turned the first man out of prison a confirmed criminal. I have said the 
 habitual-criminal act was sometimes a cause of oppression. One of the 
 strongest illustrations of the wrong which could be inflicted by the ha- 
 bitual-criminal act catne under my notice in a case from St. Clair County. 
 A young colored man who had just reached his majority was convicted of 
 burglarizing a chicken house and taking therefrom a half dozen chickens. 
 For this he received a year's sentence. He returned to his home at the 
 expiration of his sentence, and for some six or seven years led an honest 
 and upright life. One night he became hungry for chicken, and went out 
 and again broke into a chicken house and stole three chickens. He was 
 
2IO AMERICAN STATE GOVERNMENT 
 
 indicted under the habitual-criminal act. The jury found him guilty, and 
 there was no escape from the maximum sentence of twenty years. I 
 admit this was a most unusual case. Perhaps the state's attorney would 
 not have been blamed if he had nollied the habitual count in the indict- 
 ment, but he felt it to be his duty to have it inserted. The trial judge, 
 one of the most able and conscientious in the state, felt that the fault 
 was not in the administration of the law in this particular case, but in the 
 law itself. But there was no escape from this provision of the law ; the 
 indictment of the person as an habitual criminal, its proof and finding of 
 guilty, and the maximum penalty had to follow. 
 
 I believe there is no one who will deny the proposition that the man 
 who commits his second crime should be more severely punished than 
 the one who commits his first, the crimes being practically the same. 
 And neither, I believe, will any one deny that the man who commits his 
 third crime should be punished more severely than the one who commits 
 his second, the crimes being practically similar. If these results could 
 have always been secured under the old law, or if they could have always 
 been secured under the habitual-criminal act, then there could have been 
 no complaint against the law ; providing, of course, they could have been 
 accompanied by something near an equality of sentences, not only from 
 the same county, but from the various counties of the state. 
 
 Before drawing a contrast as to the results of the definite-sentence 
 law and the parole law, let me state how the parole law is administered. 
 
 When a prisoner is sentenced under the parole law, it is the duty of 
 the trial judge and state's attorney to attach to the mittimus an official 
 statement of the facts and circumstances constituting the crime whereof 
 the prisoner was convicted, together with all other information accessible 
 to them in regard to the career of the prisoner prior to the time of the 
 committal of the crime of which he was convicted, relative to the habits, 
 associates, disposition, and reputation, and any other facts and circum- 
 stances which may tend to throw any light upon the question as to 
 whether such prisoner is capable of again becoming a law-abiding citizen. 
 
 After the man has been in prison about five or six months he is fur- 
 nished with a blank containing a number of interrogatories regarding his 
 life for ten or fifteen years prior to his conviction. The object of these 
 inquiries is to learn whether or not the man has been leading a criminal 
 life ; to learn if he has been a sober, industrious, and law-abiding citizen. 
 The parole law being intended to aid men to reform if they so desire, as 
 well as to carry out the other intentions of the penal statute, it is necessary 
 to know the history of the man, — to learn what have been his habits of 
 life, and from these conclude, as well as can be done, whether or not the 
 reformatory feature of the law will find a response in his conduct while 
 on parole. I am aware that here and there can be found those who hold 
 to the idea that the prison officials can judge whether or not a man 
 is reformed. Experience and observation tell me this doctrine is the 
 
THE CRIMINAL LAW 211 
 
 sheerest nonsense. The bank cashier is a model citizen ; he is regular in 
 his attendance at church ; he gives liberally to charity ; he visits the sick 
 neighbor ; he is the pattern of the esteemed citizen and the model hus- 
 band and father. Then the community is shocked when it wakes up some 
 morning and learns that he has run off with the bank's money and his 
 neighbor's wife. The men working beside him for years never suspected 
 he was a scoundrel and a thief ; the community had learned to love and 
 respect him. Then how absurd it is to take the ground that the prison 
 guard, having control of fifty men, can say whether or not a man has 
 reformed. It is the habitual criminal — the man who has been there be- 
 fore — who makes the model prisoner, but he is always on the lookout 
 for a chance to escape. The time comes when the man must be trusted 
 on the outside, and all the state can do is to lend its aid in again placing 
 him on his feet, so he can, if he will, become an honored citizen. And this 
 the old law never did. The state had exacted its pound of flesh and was 
 content. If the trial judge and state's attorney say the man has always 
 been a resident of the county from which he was sent, and that he has 
 never before been convicted, the work of hunting up his record is simpli- 
 fied. If, however, he is a stranger in the county, then a most thorough 
 investigation is made and correspondence is had with other prisons and 
 with other officials. Of course the fact that punishment is inflicted not 
 only as penalty for outraged law but also as a warning to those who 
 might be guilty of similar crimes must never be lost sight of. And in 
 deciding how long a person shall be retained in prison, the varied objects 
 for which criminal laws are enacted must all be considered in their appli- 
 cation to the individual. 
 
 If the prisoner makes good the time which the law allows him and has 
 never before been in prison, he comes before the board at the expiration 
 of eleven months for examination for parole. If he has served a previous 
 term in prison, he is not brought before the board until he has served a 
 two years' sentence ; and if he has served two prior terms, then not until 
 he has served a three years' sentence, and so on. The reason for this is 
 that there could be no justification, except in some very exceptional cases, 
 for the release of a man serving his second term at the end of eleven 
 months. It might occur, of course, subsequent to his conviction, that 
 some new evidence had developed in mitigation of his crime to establish 
 his innocence ; and if this should occur, then his case would be entitled 
 to the very earliest consideration. 
 
 When a prisoner is brought before the board, he is permitted to give 
 his own statements as to his crime, and is closely questioned as to his 
 past life and all other matters which pertain to a careful investigation of 
 the circumstances and surroundings; the statements of the trial judge and 
 state's attorney, together with statements of those who have known him for 
 years prior to his conviction, are all considered, and then either a parole is 
 granted or the case is continued to a time when the man will be paroled. 
 
2 12 AMERICAN STATE GOVERNMENT 
 
 In considering the question of the parole of a prisoner many perplex- 
 ing questions present themselves. Three things stand out clearly as the 
 object of the criminal law, — punishment, reformation, and warning to 
 others. Some of the eminent penologists who have never been inside 
 the walls of a prison hold that the object is reformation ; others equally 
 eminent, and with equal experience, hold that one of the other objects is 
 the only one to accept as a guide. 
 
 In many cases there is no doubt that when the gate clicks behind the 
 prisoner and he is marched to the Bertillon room to be photographed and 
 measured, he has suffered much more punishment than another man 
 would after he has spent ten years behind the bars. 
 
 I call to mind one case in point. A prominent young man was sent 
 from one of the cities of the state for forgery. He was a member of two 
 or three clubs, a patron of the theater, a hail fellow well met. He had a 
 beer salary and a champagne appetite and associates. His bills had to 
 be paid and he had to maintain his social position. To do so he resorted 
 to forgery, and before he was convicted had committed the crime some 
 forty or fifty times. At the end of eleven months, in accordance with the 
 rules of the board he came before them for parole. There was no ques- 
 tion as to his exemplary life up to a certain time ; there was no question 
 but he was receiving as good a salary as others who were performing 
 similar service ; there was no question as to the eminent respectability of 
 his parents and relatives. He was making enough money to have paid 
 all his legitimate expenses and placed a small amount in the savings bank 
 at the end of each month, providing he had been content to not permit 
 his outgo to greatly exceed his income. He would not do this, but 
 betrayed the trust reposed in him, and for months carried on a most 
 ingenious system of forgery. So far as punishment is concerned, the 
 probabilities are that when the convict barber began to shorten the hair 
 of the man, he had received as great a measure as would be many years 
 to others. But if he had been released then, what of the example to others 
 holding similar positions of trust ? What protection would be afforded the 
 business men of the state who are compelled to intrust their interests 
 almost entirely to employees ? And what would be the effect upon the 
 more than a thousand men in the prison who knew that he came there 
 dressed in the height of fashion and had on the outside prominent club- 
 men, and, through their appeals, many prominent officials and citizens ask- 
 ing for his parole ? This is one case where the deterrent effect of the 
 prison servitude must very largely enter into the consideration of the 
 length of time the man must serve behind the prison bars. And yet, as 
 the prisoner marches along between men whom he would not have per- 
 mitted to black his boots, as he looks out upon his lengthening days of 
 imprisonment, there is the danger of making him a criminal for life if he 
 is confined too long. Gradually his friends will weary of work for his 
 release, gradually he will be forgotten, gradually his former social position 
 
THE CRIMINAL LAW 213 
 
 becomes nothing but a memory, and when he is released he cannot well 
 fit into his new surroundings, and he may seek a life of crime because 
 he is disgraced anyway. There are many people who honestly believe 
 that social position, political influence, and money control the courts and 
 all the avenues of justice, and this belief must always be considered in 
 the administration of the criminal law. 
 
 The law must not be administered according to the political ethics of 
 a party caucus, but there should ever be present the desire and disposi- 
 tion to act so as not to bring into contempt or ridicule the administration 
 of the penal statutes. The leader of the mob pleads, in extenuation of 
 his crime, the lax enforcement of the law, and while, in almost every case, 
 he is a composite of the liar, the thug, and the scoundrel, yet he can always 
 find plenty who will join him in his denunciation of the courts. It is there- 
 fore better always to take into consideration the public welfare rather than 
 adopt the motto ascribed to Vanderbilt. 
 
 When the board has made an order for the parole of a prisoner, the 
 matter of his employment is left to the warden of the prison in which he 
 is confined. The law provides that before he shall be released on parole, 
 employment shall be secured for him during the period of his parole. 
 After being released on parole, all that is necessary for the prisoner to do 
 is to obey the law, abstain from visiting saloons or using intoxicating 
 liquors, and keep away from evil associates and practices. Under the law 
 the prisoner must serve at least six months on parole, but the board has 
 the power to extend the period. 
 
 The contention is frequently made that the jury, which hears the tes- 
 timony, sees the witnesses, and has the defendant before them, is better 
 able to judge how long a man should be retained in prison than is some 
 board which comes along eleven months afterwards and does not have the 
 witnesses 'before them. If one jury could try all the cases in the state so 
 that they could then equalize sentences, there might be some force in this 
 contention. But those who take this view forget a few important things 
 which deserve consideration. About 75 per cent of the prisoners are 
 nonresidents of the county from which they are sent. There is no way 
 for the sheriff, the police, or the state's attorney to hunt up their record. 
 Neither the sheriff nor any other officer of the county is furnished with 
 money to even send to the various cities photographs of prisoners. In only 
 three or four counties outside of Cook is the Bertillon system in opera- 
 tion. In our own county, if a man is arrested whom the officers think 
 may be a man with a record, if they undertake to hunt up his record, 
 they must do so at their own expense and take the chances at being 
 reimbursed.. In the city of Chicago there is the most complete Bertillon 
 system in the country, and it is under the control of the most able 
 superintendent in the United States. And yet we frequently find among 
 Cook County prisoners men of whom he has no record, but who have 
 served one or more terms in prison ; but they have served in states where 
 
214 
 
 AMERICAN STATE GOVERNMENT 
 
 there is no system of identification, because there are states where they 
 do not even take the photograph of a prisoner. 
 
 Let me sight a few of many instances which show the benefit of requir- 
 ing men to disclose their past record. There are confined in one of our 
 prisons two of the most noted forgers in this country or Canada, in the 
 latter each having served two terms, and they are now wanted in several 
 states. They went to one of the smaller cities of the state, and, having 
 operated in many of the larger eastern cities, had no doubt of their suc- 
 cess in what was little more than a country town. Fortunately they were 
 arrested. There was no doubt of their guilt, and as no opportunity pre- 
 sented itself for them to break jail, they pleaded guilty, but not until the 
 state's attorney had told them he would recommend their release at the 
 end of one year. When they reached the prison the sheriff brought with 
 him a strong letter from the trial judge and state's attorney to the effect 
 that the men had never before committed crime, and they should be 
 released at the end of one year's sentence. Neither the judge nor the 
 state's attorney knew anything of the past history of the men only as they 
 had learned it from them. But when the board was through with its 
 investigation, the men admitted their criminal career. 
 
 Another man came to the prison backed not only by a strong indorse- 
 ment from the trial judge and state's attorney, but also from the attorney 
 of the railroad whose goods were stolen, each insisting the man had never 
 before committed crime and should be released at the end of one year's 
 sentence. The man had not been out of Washington state prison, where 
 he had served a seven years' sentence, sixty days before his arrest for the 
 crime of which he was convicted. He had also served a five years' sen- 
 tence in California, had broken jail four times, and admitted some fifteen 
 burglaries. 
 
 Another state's attorney recommended the parole of a prisoner at the 
 end of one year, but when the board had investigated the case and 
 wrote the state's attorney the man had served three terms in Nebraska, 
 two in Kansas, one in Missouri, one in Chester, and was then serving 
 his second term in Joliet, his enthusiasm for the man's early parole waned 
 very considerably. I might remark in passing that this prisoner has no 
 respect for the parole law since he learned the board had decided to 
 hold him until the expiration of his maximum term, whereas he has never 
 had more than a two years' sentence at any of the prior convictions. 
 
 All laws should be judged by their results. It cannot be positively 
 said that any criminal law reforms any great number of men, because we 
 know positively a man, once in prison (as well as many who should be 
 there), is reformed only when he is dead and buried. Under the old law 
 the man served his sentence, left the prison, and that might be the last 
 ever heard of him. It was the business of no one to keep track of him 
 and see that he was employed. The world had moved on while he stood 
 still. He returned to his old home. The streets, when he knew them, 
 
THE CRIMINAL LAW 
 
 215 
 
 were veritable mudholes half the year and crowded with weeds the re- 
 mainder of the year. He returned to find the streets paved, the log huts 
 given way to neat frame and brick cottages ; there were electric lights 
 and free mail delivery. It was all new to him ; he had read of it, but had 
 failed to realize its full significance. It was then he needed a helping 
 hand ; it was then he needed some one to aid him. In those new sur- " 
 roundings he was often overcome by despondency and soon found his 
 way to the haunts of vice, and erelong was again marching with the 
 lockstep of the convict. 
 
 Under the parole law the reverse obtains. The man has a home to 
 go to when he leaves prison, — he has employment, — there is some one 
 to help him. The conditions of the man released on parole are entirely 
 different from those of the man released under the old law. The best 
 evidence of the reformative feature of the parole law is found in the fact 
 that not fifty persons who have been paroled in Illinois have been after- 
 wards sent to prison again for crimes committed after having served 
 their parole. Comparing the few men who have been returned to prison 
 after having served their parole with the number of those who have 
 served previous terms in states not having a parole law, I have no hesi- 
 tancy in pronouncing the parole a great success as a purely reformative 
 measure. 
 
 Is the parole law a success in meting out punishment to offenders, and 
 does it carry out the theory I have claimed for it in this regard ? 
 
 During the last year the definite-sentence law was in force about 40 
 per cent of the prisoners were released by virtue of the expiration of 
 their sentence. During the year 1903 less than 30 per cent were released 
 on parole. 
 
 Those released during the last year the definite-sentence law was in 
 force served inside the prison walls an average of one year, seven 
 months, and eleven days. 
 
 Those who were paroled last year served inside the prison walls an 
 average of two years, four months, and sixteen days, and one year on 
 parole. 
 
 Thus it will be seen that the men serving under the parole law served 
 nine months longer, on an average, inside the prison walls, than was 
 served by those sent under the definite-sentence law. While this is true, 
 a greater per cent of men serving their first term were released under 
 the parole law last year than in any preceding year. The increased aver- 
 age time served by those sentenced under the parole law arises from the 
 increased length of time the habitual criminals are kept in prison. There 
 has never been a time in the history of the prisons of this state when 
 there was such a great per cent of prisoners serving the maximum term 
 provided by law for their crimes, as now. The law is administered to 
 help the unfortunate man who commits his first crime, and it is adminis- 
 tered to protect society from those who live by crime. Instead of the 
 
2i6 AMERICAN STATE GOVERNMENT 
 
 man who commits his first crime being punished longer than the habitual 
 criminal, the rule is reversed. 
 
 During the last )-ear the definite-sentence law was in force there were 
 received at the Joliet prison 113 second termers, 36 third termers, 13 
 fourth termers, 5 fifth termers, and 2 sixth termers. 
 
 During the year 1903 there were received at the Joliet prison 51 
 second termers, 5 third termers, 4 fourth termers, and i fifth termer. 
 The great majority of these, having served in other states, knew nothing 
 of the operation of the parole law. 
 
 Notwithstanding what I have said, most of you have doubtiess read 
 in some of the Chicago papers some very^ severe criticisms upon the 
 action of the Board of Pardons, to the effect that habitual criminals were 
 being released, while those who had no political pull were being re- 
 tained behind the prison walls. /\s the records of the board are public, 
 the board has not thought it necessary to rush into print on these ques- 
 tions. It might not, however, be out of place to call attention to one case 
 which is a fair illustration of the situation. One Chicago judge gave out 
 a most bitter and vindictive interview in regard to the board, charging 
 that habitual criminals were released at the end of eleven months, while 
 poor fellows who had no political influence were retained in the prison 
 the maximum term. An investigation showed some rather startling facts 
 as to the history of that judge. For the last five years the definite-sen- 
 tence law was in force he had sentenced, either on the verdict of the 
 jury or a plea of guilty, 73 persons to the Joliet penitentiary. These per- 
 sons served, inside the prison walls, an average of one year, nine months, 
 and thirteen days. Among the number were four men who had served 
 one prior term each, but only served eleven months under the definite 
 sentence ; while one other had served two prior terms, but only served 
 eleven months under the definite sentence. This same judge had sen- 
 tenced 47 men to the penitentiary since the parole law has been in force ; 
 a number of these latter have had their cases continued to the maximum 
 term, and when they have all been liberated they will have served on an 
 average, inside the prison walls, two years and six months, or nine months 
 longer than under the old law, and not one of them who had served a 
 previous term was released at the expiration of eleven months. Those 
 whose cases were not continued to the maximum will be required to 
 serve twelve months on parole. 
 
 Where the crime is not of the greatest magnitude and the prisoner 
 has previously borne a good character, the reformatory intent of the law 
 should be applied, and in nearly every case is applied, at the end of the 
 first year. There are, of course, exceptions to the rule, but the rule is 
 proven by the exceptions. Where a man has persisted in committing 
 crime — where continued punishment has not reformed him and he has 
 paid no heed to continued imprisonment — the one thing to be consid- 
 ered is, how long shall society be protected. The law, in such cases, 
 
THE CRIMINAL LAW 217 
 
 has fixed the limit, and in a great majority of instances there is little 
 justification for reducing that limit. 
 
 The number of habitual criminals is being reduced because that class 
 is learning that a conviction in this state means a long term in the 
 penitentiary. 
 
 No law will stop crime. A wise and humane law will hold out to the 
 ' one who commits his first crime the lamp of hope all trimmed and brightly 
 burning. A just law will protect society and the individual from those 
 who prefer to lead the life of a criminal. The old law was too often 
 neither humane nor just. By the partial and unequal manner in which 
 it necessarily had to be administered it made criminals of many and re- 
 formed few. Neither courts nor juries should be blamed for the manner 
 in which it was administered, because the objections which I have urged 
 against it were beyond their control. Under the parole law the first 
 offender is given ample aid and encouragement if he is desirous of re- 
 forming, while the habitual criminal is learning that if he desires light 
 punishment he must confine his crimes to some other state than Illinois. 
 
 THE PENNSYLVANIA CONSTABULARY ^ 
 
 Dispatches from the coal fields these days tell a stereotyped story lim- 
 ited to a few hundred words. They usually begin " a riot broke out here," 
 and end " quiet was restored when the constabulary arrived." In New 
 York the word "constable" calls to mind a rural person with a thin beard, 
 a wide-brimmed straw hat, a linen duster, and a nickel shield pinned on 
 his chest. The Pennsylvania constable is different. He is something brand 
 new for the states in the police line, and was created to take the place of 
 the militia in handhng strikes. 
 
 The Pennsylvania constabulary is a permanent force of mounted men, 
 — four troops of two officers, five sergeants, and one hundred and fifty 
 men each, — every man of them chosen for his physical build, discretion, 
 fearlessness, and ability to tame men. Eight out of ten of them have seen 
 military service in four lands, and most of them were noncommissioned 
 officers before they left the army. They resemble the Canadian mounted 
 police and the Texas Rangers more than anything else, although the 
 organization itself was built largely on the lines of the Irish constabulary. 
 
 Every trooper can ride and shoot and give a good account of himself 
 in a rough-and-tumble fight besides. But these talents, while they count 
 in a pinch, do not establish a morale in the force. The secret of that is 
 the realization of one-man strength, the power of quiet confidence, and a 
 belief in the effect of the uniform. Captain John C. Groome, state su- 
 perintendent, who recruited, organized, and equipped the constabulary, 
 has taken as his standard for measuring the strength of a mob : " Each 
 mounted trooper is good for a hundred men." 
 
 1 New York Evening Post, 1906. Reproduced by permission. 
 
2i8 AMERICAN STATE GOVERNMENT 
 
 The four troops are distributed over the state so as to cover as best 
 they can the one hundred-odd coal and iron mines. The Reading troop 
 is ready to answer day alarms from this vicinity, the Wilkes- Barre troop 
 guards the country farther north, and the Greensburg and Punxsutawney 
 troops are watching the central and western fields, — fifty men for each 
 scene of trouble, covering a radius of thirty miles ! Even a more solitary 
 patrol than our own mounted police have in the outlying districts of Rich- 
 mond and Queens. When the coal-strike difficulties are settled, the con- 
 stabulary will patrol this country in pairs. The stations may then be 
 increased to eight, each occupied by one section of a troop, and each 
 section divided into three reliefs of six hours apiece. Each beat will then 
 be about sixteen miles long, and when the constabulary are on duty they 
 will, in addition to the duties of a policeman, have to act as fish, game, 
 and fire wardens. 
 
 Eleven to do the Work of Two Thousand 
 
 Heretofore Pennsylvania has relied largely upon its National Guard to 
 awe the turbulent factions that gather around the coal mines in time of 
 strike. Two thousand armed men to one troublesome town was the 
 militia's ratio for pacification. By the ethics of the constabulary a ser- 
 geant and ten men are expected to handle such a district. The mounted 
 constable enforces the law very much as did the sheriffs in those stren- 
 uous years when the West was young. He must be absolutely fearless. 
 If he shows the white feather once, his usefulness is done for and the 
 force has no place for him. 
 
 " My instructions to each trooper," said Captain Groome recently, 
 " leave a lot to his discretion. If he starts out to get his man, he must 
 get him, if he has to butt into the middle of a mob to find him. The 
 troopers are counseled not to use their guns unless they have to." 
 
 At the Cornwall ore banks early in March five hundred foreigners be- 
 came angry because they could not persuade the men keeping the fires 
 to quit work. They assaulted several inoffensive workmen and chased the 
 sheriff's deputies. The sheriff telephoned for aid. " Send your whole 
 force of constabulary," he urged. " These rioters are desperate ! " 
 
 A sergeant and ten men were dispatched on the run. There was no 
 time to get the horses entrained, and the detail went whirling to the scene 
 of trouble in a caboose and engine. No sooner had they arrived than the 
 smallest man in the bunch forced his way bodily into a crowd of angry 
 aliens and grabbed a big foreigner who had "' pulled a gun." The prisoner 
 showed fight and his friends offered to help him. The trooper swung his 
 stick just once, the big fellow dropped, and the crowd ran like sheep. 
 
 At Yatesville twelve troopers dispersed a mob of seven hundred, and 
 went through a tough settlement on a hunt for firearms, bringing out a 
 small-sized arsenal after the inhabitants had pleaded they were "good 
 
THE CRIMINAL LAW 
 
 219 
 
 citizens" and had no guns. The houses raided had sheltered "pot 
 shooters " who, for several nights, had kept up a desultory fire on the 
 windows and doors of the colliery a few hundred yards away at the foot 
 of the hill. 
 
 At the Franklin colliery, also near WUkes-Barre, strikers dispersed a 
 guard of deputy sheriffs and clubbed and knifed a few workmen who had 
 been taking coal from a culm bank to keep up sttem for the engines 
 that pumped water from the mines. This was as per agreement between 
 operators and miners. The mob, however, beat these employees severely 
 and started out to wreck the colliery, when a small detail of mounted con- 
 stabulary arrived. It was just about dusk. The sergeant asked the men 
 to disperse and they refused. He told them they would get hurt if they 
 did n't, and they jeered at him. The sheriff pointed out two ringleaders 
 and the sergeant asked them to step out and give themselves up. This 
 request was also refused. 
 
 " Tell them I 'm going to take them," said the sergeant to the interpre- 
 ter ; " and all those wtto want to have their heads crushed will please stay 
 right where they are ! " 
 
 Then the mounted men rode into the brown and the long locust sticks 
 were laid right and left. The mob tried to run, but it could not get away 
 from the horses. Franklin Colliery will not forget that sight for many a 
 day. When the troopers rode back to their barracks they had two badly 
 damaged prisoners handcuffed and walking between them. Several more 
 were taken the next day. 
 
 At Windber, down in the southwestern part of the state, ugly feeling 
 between the miners and the deputy sheriffs culminated in a shooting in 
 which three miners were killed outright and a ten-year-old boy was fa- 
 tally wounded as he was looking on. The shooting occurred at the jail in 
 an attempt to rescue several men who had been arrested. The sheriff 
 lost no time in telegraphing for the constabulary. Greensburg barracks 
 were nearest to the scene of trouble, and two sergeants and twenty men 
 with horses were loaded aboard a special and started for Windber about 
 ten o'clock at night. 
 
 Ordinarily it is a run of four hours, but a wreck on the line held the 
 constabulary until daybreak, and it was not until seven o'clock that they 
 detrained. Without breakfast the troopers went right at work, serving 
 the sheriff's warrants, making arrests, and searching for concealed rifles, 
 shotguns, and stilettos. To do this they were compelled to enter strange 
 houses, grope in the dark, and run the risk of a knife thrust when and 
 where they least expected it. 
 
 Through their interpreter the sullen foreigners were told that the state 
 insisted upon law and order, and that the mounted troopers would see 
 that law and order was maintained. The detail then divided into pairs and 
 started to patrol the town. These men had two days and two nights of 
 continuous duty before they could get any rest. 
 
2 20 AMERICAN STATE GOVERNMENT 
 
 The constabulary is uniformed in dark gray whipcord, with black put- 
 ties, and dark gray helmets. The blouse is very much like the blouse 
 of the field-service uniform of tlie regular army, and for fatigue duty 
 the troopers wear a dark gray cap, also shaped like those of the army. 
 The combination has a neat soldierly effect and is not without its dignity. 
 For winter there is a roomy greatcoat of the same color that will cover 
 both the wearer's legs as well as the pommel and cantel of his saddle. 
 For storms in summer the rubber cavalry cape is provided. The horses 
 are supplied by the state, as well as the uniforms. Most of the mounts 
 come from the ^^'est. If they are not as trim and sleek as those of our 
 mounted police, they probably are of greater endurance. The country 
 which they have to travel is stiffer, and rocks and thorns more common 
 than shade trees and macadam roads. 
 
 It is not to be wondered that this duty is attracting the best noncom- 
 missioned officers from the regular army. The work is more exciting, 
 the men have a chance for more initiative, and are paid quite handsomely. 
 A private of constabulary receives I.720 a year, his horse, uniform, and 
 a house to live in. The regular gets less than $170 a year and his food, 
 clothes, and care. But the mess account at a constabulary barracks is 
 not usually an extravagance. It runs about $10 a month per man, and 
 as he advances in promotion his pay increases accordingly. A sergeant 
 receives $1000 a year, a lieutenant $1200, and captains $1500. No 
 married men are accepted. Terms of enlistment are for two years un- 
 less sooner discharged for cause, and with the long waiting list at head- 
 quarters, the troopers have to lead rather exemplary lives to hold their 
 positions. When Captain Groome began the examinations of men, to 
 enlist a force of two hundred and thirty-two, he had over one thousand 
 applications. 
 
 The country which the constabulary patrols is not as wild as Texas 
 orthe Northwest territory, but there are parts of Pennsylvania which, to say 
 the least, are obscure. The constabulary to some extent will supersede 
 the Coal and Iron Police, now paid and directed by private corporations. 
 Experience has taught Pennsylvania that the alien element needs some- 
 thing more formidable than either sheriff or militia to impress mischief- 
 makers with the authority of the law. Therefore, upon the combination of 
 policeman's club and helmet, soldier's uniform and gun, with a real fight- 
 ing man inside, who can at times use discretion, Pennsylvania relies to 
 solve a vexatious problem. 
 
 Texas, when it first put the famous Texas Rangers in the field, was 
 confronted with a similar situation. These riders owned their own mounts 
 and received $40 a month, with arms and ammunition, from the state. 
 It was the life, not the pay, that attracted men to this force. Like the 
 mounted police of Canada, they chased oudaws, road agents, Indians, 
 and cattle thieves, settled land disputes, made Texas orderly, and gained 
 the respect of every class of the lawless and criminal. They stayed in 
 
THE CRIMINAL LAW 221 
 
 the saddle for hours at a stretch, rode miles upon miles of dreary wastes, 
 but never failed to get what they started for, and accomplished their pur- 
 pose without noise or bluster. 
 
 In place of hot sun and freezing blizzards which the Rangers and 
 Canada's Mounted Police have to face, Pennsylvania's constabulary must 
 ride dangerous hill and mountain roads in fogs and darkness, bitter cold 
 winter weather, and deep snow. There probably is n't a more treacher- 
 ous country east of the Mississippi than these same mountain districts 
 of Pennsylvania. 
 
 In some manner the impression has gone out that the constabulary is 
 a creation of the state for the sole protection of the property of the big 
 coal operators. Nothing could be farther from the truth. The constab- 
 ulary is a venture in economy, but labor trouble was only one of the 
 causes that brought about its organization. The Pennsylvania legisla- 
 ture, it is true, became tired of providing for the payment of its National 
 Guard when on strike duty. It costs a pile of money to keep even one 
 regiment in the field for a single week. Several regiments have been 
 necessary every time Pennsylvania has resorted to martial law, and the 
 bills that resulted seemed a wicked extravagance to Pennsylvania Dutch 
 economy. 
 
 Governor Pennypacker was largely responsible for the bill which created 
 the constabulary, but the measure was popular enough with the mem- 
 bers to go through without any question, and they appropriated over 
 $400,000 on the spot, to be used at the discretion of the superintendent 
 in raising the new force. In fact, so willing were they to let the gov- 
 ernor lift the troublesome state-police business off their hands that they 
 took very litde pains with the bill itself, and consequently the law as 
 entered on the statute book is not the strongest one in the world. It has 
 sufficient weak spots to tempt the United Mine Workers of America to 
 test its provisions in the courts. Resolutions have also been passed by 
 this body calling upon members to urge the repeal of the law by the next 
 legislature. 
 
 Apparently the trouble-makers in the mining districts see in this 
 mounted force a new and important factor in the outcome of future labor 
 movements. Therefore they do not wish it to interfere whenever they 
 start a demonstration. But besides troublesome people in the coal fields, 
 Pennsylvania has other bad men abroad, and these have a faculty of 
 operating through the country districts out of range of the city police. 
 Yeggmen, horse thieves, game poachers, and highwaymen, — all ply their 
 trade in this state. The constabulary is to pursue these fellows just as 
 hard as the rioters among the coal and ore regions. 
 
V 
 THE STATE ADMINISTRATION 
 
 THE GROWTH AND FUTURE OF STATE BOARDS 
 AND COMMISSIONS 1 
 
 By F. H. White 
 
 [Among the most striking developments of the last decade or two is the growth of ex- 
 pert commissions and boards in the state governments. In many commonwealths these 
 organs of the administration are the direct descendants of legislative committees.] 
 
 In America, for a hundred years before the Civil War, the govern- 
 mental questions uppermost in men's minds were chiefly, though not 
 exclusively, constitutional ; since the war they have been mainly adminis- 
 trative.* That is to say, prior to the Civil War questions of independ- 
 ence, of the interrelationship of governmental departments, of state rights, 
 of suffrage, occupied most attention ; while, since the reconstruction 
 period, interest has been centered on the relations of the state to great 
 corporations, on capital and labor in their industrial struggles, on state 
 aid in the development of the country's resources, on the methods and 
 measure of taxation, on the protection of the health and morals of the 
 people, and on the furthering of educational, industrial, and philanthropic 
 enterprises. The problems here have been largely those of administration, 
 — of efficient exercise of power by governmental agencies. 
 
 This increased administrative activity has sometimes found expression 
 in laws general in character and requiring no special machinery for their 
 execution ; but more frequently a special need — industrial, scientific, 
 educational, philanthropic — has called into existence a special organ of 
 government to supervise, aid, or manage the affair. This is the source 
 of those boards and commissions which have in late years become prom- 
 inent in all the states, but more particularly in those having the most 
 complex and highly developed industrial organization. These bodies are 
 the latest product of governmental evolution. They have developed 
 since the Civil War, many of them during the last two decades ; and a 
 study of their form and action will reveal the tendencies of governmental 
 progress and the advance already made in certain directions toward 
 paternalism and state socialism. 
 
 i From the Political Science Quarterly, 1903 
 
 2 Goodnow, Comparative Administrative Law, Vol. I, p. 4. 
 
THE STATE ADMINISTRATION 223 
 
 I. Origin and Distribution of the Boards and Commissions 
 
 Several causes have contributed to the establishment of these bodies. 
 One undoubtedly is the growing consciousness of the legislator that he 
 must have more light before filling the statute books with laws. Espe- 
 cially does he feel this when dealing with the great and complicated 
 interests that have arisen from the expansion of our social and economic 
 life. A number of the commissions may be said to have had their origin 
 and prototype in standing committees of the legislature. Of course it 
 has long been the custom of legislative bodies to refer matters requiring 
 investigation to special committees, composed of their own members, in 
 order that data may be collected, evidence heard, and recommendations 
 proposed. But the shortness of legislative sessions in most of the states, 
 and the lack of expert knowledge and of necessary leisure on the part of 
 the legislators themselves, have sometimes led them to establish a com- 
 mittee or commission composed of outsiders possessing special knowl- 
 edge of the subject, and able to give their whole attention to the matter 
 in hand. 
 
 This explanation of their origin would hardly hold good for many of 
 the boards and commissions ; for example, those designated " executive." 
 In this class the original purpose was not so much to collect information 
 as to get something done ; and the same is true of " supervisory " and 
 " examining " commissions. The impulse to the formation of such com- 
 missions has frequently come from outside the legislature, and the whole 
 plan and organization have been suggested independently of that body. 
 Public opinion has first been aroused by earnest advocates of the pro- 
 posed extension of governmental functions, and this has finally had its 
 influence upon those in authority. A bill has been introduced and forced 
 through, and the establishment of the commission has followed. The 
 Massachusetts Board of Health, and later the Highway Commission, are 
 cases in point, and good examples of the deliberate manufacture of 
 public sentiment. 
 
 Another cause of the establishment of boards and commissions is 
 found in the growing strength and solidarity of professional and indus- 
 trial organizations. Realizing that the good name of their profession was 
 suffering, and the practice of their members at the same time diminished, 
 by the quackery or unskilled work of persons pretending to have the 
 necessary qualifications, medical, dental, pharmaceutical, and other asso- 
 ciations have used their not inconsiderable influence to secure boards of 
 registration and to obtain laws forbidding practice by unregistered per- 
 sons. In the same way industrial organizations are realizing more and 
 more what a useful ally the government can be in limiting numbers in 
 each line of work, and a movement to invoke this alliance is growing in 
 strength. The Pennsylvania law requiring miners to obtain certificates 
 in order to work in the coal mines of that state is a case in point. 
 
224 
 
 AMERICAN STATE GOVERNMENT 
 
 As to the distribution of the commission system through the Union, 
 Massachusetts, the pioneer in adopting the s)stem, distances all the other 
 states in the number of such bodies and in the variety of interests placed 
 under their care. This development, however, has not continued with- 
 out protest. Illinois stands next. In general, it may be said that the 
 states having highly de\eloped manufacturing and commercial interests 
 lead in the number of such bodies. The exceptions are Kansas and 
 Colorado, which possess a surprising number for states having agricul- 
 ture or mining as their leading industry. The New England states, with 
 the exception of Maine and \"ermont, have a pretty full development of 
 the system, attributable to the influence of Massachusetts and the general 
 similarity of economic and social conditions. The southern states, as a 
 rule, have but few commissions. 
 
 II. Duties of the "Boards and Commissions 
 
 So various are the duties assigned to these bodies that their classifi- 
 cation is made very difficult. A careful examination, however, reveals 
 that they may be grouped under the following heads : Industrial, Scien- 
 tific, Supervisory, Examining, Educational, Executive, Corrective, and 
 Philanthropic. 
 
 I. Industrial. Examples of such bodies are to be found in boards of 
 agriculture, dairy and food, horticulture, and inspectors of mines, oil, fish, 
 live stock, grain, steam boilers, steamboats, workshops, and factories. 
 
 A majority of the states have boards of agriculture ; the first three 
 boards and inspectors of mines and oil mentioned above are represented 
 in perhaps one fourth of the states ; each of the remaining boards and 
 inspectors in about one tenth of the states. There are a number of other 
 boards that are represented in only one or two states ; for example, 
 terrapin inspectors (South Carolina), beef and scythe stones (Rhode 
 Island), silk commission ( Kansas), tobacco inspectors (Maryland), bakery 
 inspectors (Ohio). 
 
 In boards of this kind we see an effort of the states to further special 
 industries, because of their present or prospective importance. That so 
 large a number have established boards of agriculture and kindred bodies 
 (horticulture, cattle, etc.) reveals the immense importance of the in- 
 dustry, and perhaps, incidentally, of the farmers' vote ; for it must be 
 admitted that commissions are sometimes formed to indicate an interest 
 in a particular class rather than to meet a real need or demand of the 
 industry thus favored. 
 
 These boards of agriculture have endeavored to advance the industry 
 by spreading information concerning the best methods of soil cultivation 
 and of stamping out diseases prevalent among the domestic animals, by 
 making known the advantages their respective states possess for agricul- 
 tural pursuits, by organizing and conducting farmers' institutes to discuss 
 
THE STATE ADMINISTRATION 225 
 
 matters of interest and exchange experience. These and other duties 
 have, on the whole, been fairly weU executed. On the other hand, the 
 boards of agriculture have not been without faults. A tendency to move 
 only over the surface of the questions presented for discussion, to be 
 popular at the expense of a more thorough and adequate treatment of 
 the problem discussed ; a willingness to boom some new or promising 
 field of agricultural work without due consideration of anything but 
 immediate consequences and surface conditions ; and a too ready yield- 
 ing to the temptation to give advice as to the best methods, etc., when 
 no really scientific investigations have preceded, — these are the chief, 
 though perhaps not the only, faults of these bodies. 
 
 Of a somewhat different character from the boards of agriculture are 
 the commissions charged with the duty of looking after the quality of the 
 staple articles of their respective states, and of seeing that various means 
 of manufacture, of power, of transportation, etc., are in proper condition. 
 The purpose here is to protect the health of the consumer, the good 
 name of the states' products, and also, in some cases, the safety of the 
 employees. The inspection of mines and manufactures, however, has 
 not yet proceeded very far, but may be found in a few of the states. 
 
 The experiment of Ohio in providing a free employment bureau, a 
 state labor exchange, has been followed only in New York. 
 
 2. Scientific. Boards of health are found in most of the states ; bureaus 
 of labor statistics have been established in about one half ; boards of 
 topographical or geological survey in about one fourth of the states. 
 Other boards and commissions of this general character (public records, 
 forestry, weather service, drainage), and such public officers as vaccine 
 agent and state chemist, are found in but few states. 
 
 The desire for exact information, for the highest expert knowledge, 
 grows apace, and has found expression in the creation of these bodies, 
 charged primarily with the collection of scientific data ; though some, like 
 the boards of health, have executive duties to perform. It is a promising 
 sign of the times that the number of such commissions is increasing. The 
 great multiplication of boards of health also indicates a determination to 
 use the approved results of scientific investigation in the most effective 
 way for the prevention of epidemics and the general preservation of the 
 health of the people. Of course this is a species of paternalism, though 
 surely of a very justifiable kind. The almost absolute power of these 
 boards in condemning property, isolating individuals, and establishing 
 quarantines is worthy of more attention from students of government. 
 
 The large number of states that have established bureaus of labor 
 statistics since Massachusetts set the example in 1869 indicates the need 
 felt of securing adequate data before attempting to cure social ills. No 
 doubt much that has been secured by these bureaus is almost useless, 
 owing to the failure to observe the strict requirements of scientific inves- 
 tigation. Politicians, unfortunately, have frequently secured appointments 
 
2 26 AMERICAN STATE GOVERNMENT 
 
 at the head or on the staff of the bureaus as rewards for political services ; 
 or, in order to secure the favor of labor organizations, untrained men 
 have been put in such places, with the result that their work is discred- 
 ited, and fails to inspire confidence in its accuracy or scope. Being ill 
 trained or untrained in the difficult work of collecting, classifying, and 
 generalizing the necessary information, the results prove inadequate, 
 inaccurate, and misleading. 
 
 Still, much use has already been made by statesmen, students, and 
 writers, of the matter presented in the reports, not only in this country 
 but elsewhere. The example of the United States in collecting and pub- 
 lishing industrial information in a systematic fashion has been followed 
 quite largely in other countries. 
 
 3. Supervisory. The most conspicuous examples are boards of arbi- 
 tration, railroad commissions, and commissioners of insurance, inland 
 fisheries, and game. The last three are found in a large number of states, 
 the first in at least eight. Several states are experimenting with boards 
 of inspectors whose duties are to supervise corporations (Massachusetts), 
 gas and gas meters, building and loan companies. 
 
 The commissioners grouped under this head are probably better known 
 than any others. The railroad and insurance commissions have been the 
 most prominent. The railroad commissions are of two varieties : one, of 
 which Massachusetts furnishes the type, has power to direct attention to 
 cases of neglect, ill treatment, overcharges, etc., by the railroads, but no 
 power to compel obedience ; the other variety, represented by most 
 western commissions, possesses power to compel railroads to obey its 
 orders, subject, of course, to the courts. 
 
 There is a difference of opinion as to the relative merits of the two 
 kinds, though the tendency seems to be toward the latter. The commis- 
 sion that has no direct power of compulsion is expected to act on the 
 roads through public opinion, and, ultimately, through the legislature, 
 should the roads prove obstinate. The commissions possessing direct 
 power have found themselves much circumscribed by the federal courts, 
 that insist on the right to review their decisions and reverse them when 
 they appear to be cutting so deeply into the revenue of the roads as to 
 make it impossible to pay fixed charges and some profits, or when the 
 procedure of the commission seems inconsistent with due process of law. 
 Kansas has recentiy attempted to get around both of these points by 
 establishing a special " court of visitation," founded for the purpose of 
 controlling rates. It seems unlikely that this new organization can stand 
 the tests of the federal courts. 
 
 Insurance commissioners are endowed with great power in some states. 
 For example, in Kansis, the insurance commissioner may absolutely ex- 
 clude the most powerful companies from writing policies within the state. 
 Such dictatorial power is certainly liable to abuse, and examples are not 
 wanting of actions by a former insurance commissioner of Kansas that 
 
THE STATE ADMINISTRATION 227 
 
 have the appearance of a "holding up" of the companies, — of com- 
 pelling them to pay for the privilege of operating in the state. It was 
 commonly reported during his administration that emissaries from the 
 commissioner tried to extort what amounted to blackmail from a number 
 of the largest companies. 
 
 The movement to arbitrate labor disputes between employer and em- 
 ployees has crystallized in eight permanent commissions in as many states. 
 In a number of other states the law provides a method of creating tem- 
 porary commissions for the settlement of labor disputes when the occasions 
 arise. They have had a moderate amount of success, but do not seem 
 to have met the expectation even of their originators. In a recent case 
 in Massachusetts the striking laborers and the employers agreed to sub- 
 mit the matter in dispute to the state board of arbitration and conciliation, 
 but on the award being made in favor of the employers, the laborers 
 refused to accept it. Such failures to abide by the decision of the arbi- 
 trators strikes a deathblow at the whole system. 
 
 4. Examining. Boards of registration in dentistry, medicine, and phar- 
 macy are found in many of the states. In at least four there is a civil-serv- 
 ice board, while several have boards or commissions whose duties are to 
 examine pilots, veterinarians, undertakers, architects (Illinois), horseshoers 
 (Illinois, Minnesota), barbers (Minnesota), and plumbers (Minnesota). 
 
 A very interesting development is presented under this head. The 
 movement is spreading rapidly to provide boards for the examination of 
 certain important skilled professional men and artisans. Dentistry, medi- 
 cine, and pharmacy commissions are required by law to examine and reg- 
 ister those persons who are to be permitted to practice their respective 
 professions in the various states. Such a board is controlled by the pro- 
 fession concerned, and is moved, therefore, by a real desire to exclude 
 unworthy members from the profession, and to preserve, so far as possible, 
 its fair fame. The exclusions are made on the ground of unfitness alone, 
 so that any attempt to limit the number practicing in the state can only 
 be carried out by excluding the unworthy, and thus the standard will be 
 raised. In all these professions it is not a greater number of practitioners 
 that the public interests demand, but higher skill ; hence such a system 
 of registration may be expected to result in more rigid requirements. 
 
 Unfortunately the states have not yet generally provided an examin- 
 ing board for their own employees. The desire for civil-service reform 
 has been gaining ground quite rapidly, however, and it is probable that 
 the near future will see civil-service commissions established in other 
 states than the few that now possess them. Still, there is hardly a ses- 
 sion of the legislature in any of the states where the commissions exist 
 that does not witness efforts made to destroy the law. 
 
 Minnesota has gone surprisingly far in providing examining boards 
 for occupations other than the professions : bakers, plumbers, and horse- 
 shoers are registered in that state. In the New York legislature of 1900 
 
2 28 AMERICAN STATE GOVERNMENT 
 
 an effort was made to establish a state board of examiners for the sani- 
 tary inspection of barber shops. The Brennan bill that provided this 
 board was killed after some debate by a vote of 72 to 42. 
 
 That this movement is one of great significance, and that it may, if 
 carried so far as to interfere materially with the free choice of occupation, 
 produce important economic results, will be apparent to any one on 
 reflection. 
 
 5- Educational. Boards of control of educational institutions and state 
 boards of education are found in nearly all the states. Connecticut made 
 a unique advance by establishing a board of sculpture, and Massachusetts 
 has set an excellent example by providing for a public-library commission. 
 
 Notwithstanding vigorous efforts to divorce politics from the educa- 
 tional and philanthropic activities of the states, the temptation to use the 
 positions in the different 'institutions and boards as " spoils of office " 
 has usually been too great for governors to resist, and the results have 
 frequently been deplorable. The recent experience of the Illinois State 
 Board of Charities may be cited as a case in point. Public opinion, how- 
 ever, is becoming more and more educated on this matter, and we may 
 confidently look forward to a time in the near future when in most of 
 the states politics will play no part in the administration of the state 
 educational and charitable institutions. 
 
 6. Executive. The desire on the part of many states to get some- 
 thing done to carry through some great enterprise, even though at 
 times it involved the entry of the state on ground supposed to be the 
 exclusive domain of individual enterprise and initiative, has led to the 
 formation of boards and commissions charged with such duties as 
 the following : construction of highways, control of the public printing, 
 selling of liquor (South Carolina), managing great sewerage and water 
 systems, laying out extensive parks, constructing and repairing levees 
 (Louisiana ancj Mississippi). 
 
 Massachusetts has led the way in this class of commissions. Her 
 highway, subway, park, water, and sewerage commissions are all excel- 
 lent examples of what the state may do under certain conditions. Munic- 
 ipalities, of course, have long been engaged in the construction of 
 waterworks, sewerage systems, and parks, but there have been compara- 
 tively few examples of a state's undertaking such enterprises as these ; 
 hence the special interest that attaches to their success or failure. The 
 occasion for a number of these commissions in Massachusetts is peculiar 
 to the conditions prevailing around Boston. A number of thriving and 
 well-to-do communities have grown up within a small radius of Boston, 
 but their governments are entirely independent, though they stand in 
 very close commercial and physical relation to the mother city. It 
 became obvious that it would be to the advantage of all concerned 
 that a general system of parks, water, sewerage, and transportation 
 be devised ; but as the towns were by no means ready to sink their 
 
THE STATE ADMINISTRATION 229 
 
 individual existence in a Greater Boston, it seemed best to have tlie state 
 come in and provide a commission ttiat would unify action and yet save 
 the rights of each. 
 
 The commissions have thus far been remarkably successful in what 
 they have undertaken. The Highway Commission has had an especially 
 satisfactory career, and though it has spent a large sum, not a word of 
 complaint as to misappropriation of funds has been heard, and no seri- 
 ous criticisms made on the work performed except as to general policy. 
 It was urged by many that continuous good roads should be built 
 instead of the detached sections planned by the commission. So strong 
 was the demand for a different policy that a change was made a few 
 years ago in the personnel of the commission. The character of the 
 commission has been uniformly high. Most of its members have been 
 experts of great reputation, and their general standing has been such as 
 to command the highest respect. 
 
 Up to the present time the work undertaken by the states through 
 their executive boards has consisted chiefly of great engineering enter- 
 prises. The important exceptions are the conduct of a public printing 
 establishment, the purchase of schoolbooks, and the sale of liquors. It 
 must be said that the conduct of all these enterprises by the state has 
 been fairly satisfactory. That there has been any striking advantage to 
 the public may well be doubted. Probably the activity of the states has 
 hardly gone far enough in extent or time to warrant any sweeping judg- 
 ment. That it has attempted these lines of work at all is a matter of 
 deep interest, and may well cause us to ask in expectancy. What next ? 
 
 7. Corrective and Philanthropic. Under this caption may be grouped 
 such bodies and officers as boards of police and of charity and correc- 
 tion, general superintendent of prisons (Massachusetts), state agent 
 to prevent cruelty to animals (North Dakota). Nearly one half of the 
 states have state boards of charities. In all the states having institutions 
 for the defective, dependent, and delinquent classes there are boards of 
 control. Leaving these out of account, the various bodies or officers 
 under this head, with one exception (Massachusetts, — State Aid), are 
 the result of attempts to centralize administration in the state govern- 
 ment, — to supervise and control local authorities. To a certain extent, 
 therefore, they are in opposition to the policy of home rule. 
 
 Such work, however, was undertaken reluctantly by the state govern- 
 ments, and only when the abuses under the local governments were too 
 great to be borne. The administration of public charitable institutions, 
 like the almshouses and hospitals for the insane, or corrective institutions, 
 like the jails and prisons, was admittedly bad almost everywhere. This 
 was due sometimes to the poverty of the local communities, but usually 
 to ignorance of actual conditions and to lack of acquaintance with better 
 methods, or to the shortsighted penuriousness of the people of the 
 community. 
 
230 
 
 AMERICAN STATE GOVERNMENT 
 
 The state boards of charities in Indiana, Ohio, and New Yoric are 
 doing an incalculable amount of good by inspection and the requirement 
 of reports. We should be better pleased, no doubt, if each community 
 needed no inspection and required no oversight, — if the impulse to 
 better things came from within rather than from without. It has been 
 found in England, however, after long centuries of trial, and in this 
 country after a considerable period of experience, that the local authori- 
 ties cannot be relied upon to reform their methods of poor relief, or to 
 stay reformed, if by chance they have a spasm of virtue and improve 
 matters for a while. 
 
 Perhaps the explanation of the steady improvement under the state- 
 board system may be found partly in the fact that the whole of the 
 state seldom degenerates at the same time ; that if one part deteriorates, 
 the other portions, acting through the central body, — the state board, 
 — apply the spur or the whip. In part, the explanation may be that the 
 publicity which the state board can give to the failures of the local 
 authorities keeps the latter ever on the anxious seat. 
 
 The control of the local police by the state is an experiment which 
 has been thoroughly tried in Kansas and partially tried in Massachu- 
 setts. In neither state is there a central board, but the members of the 
 local boards are appointed by the governor and may be removed by 
 him. This is the reason for placing them among the state officers. It is 
 quite doubtful if the laws are better executed by this arrangement. In 
 actual practice it is found that the governor, as a rule, appoints in each 
 city the kind of a commission the majority of the citizens wish. If a 
 commission is appointed, not backed by the mass of the people, arrests 
 and convictions are very difficult to obtain. In Massachusetts the inter- 
 ference of the state with the right of the locality to appoint its own 
 police is confined to the cities of Boston, Taunton, and Fall River. 
 Much complaint is made in Boston, by Democratic papers at least, that 
 such an arrangement takes from the city the right to manage its own 
 affairs. So long, however, as the city is Democratic and the state outside 
 Republican there need be little expectation of a change. 
 
 No one can glance over the foregoing activities of the commissions 
 without remarking their varied and important character. They reflect the 
 complexity of modern life and suggest the imminence of a government 
 paternalism more far-reaching than our country has known in the past. 
 
 It is clear that such delicate and difficult duties as those described 
 can be rightly performed only by experts. Technical training and skill, 
 not party service, must be the criterion for the personnel of the commis- 
 sions. If party service determines, one of two things will happen : either 
 the work will be badly done and great interests will suffer, or else an 
 expert will be employed to do the work that should be done by another, 
 and the state must pay two salaries when one would suffice. The prin- 
 ciple here involved has been particularly illustrated in the affairs of 
 
THE STATE ADMINISTRATION 231 
 
 our cities. President Eliot remarks, in his " American Contributions to 
 Civilization," that "" the failure of the democratic form of government 
 has occurred chiefly in those matters of municipal administration which 
 present many novelties and belong to the domain of applied science, 
 such as the levying of taxes, the management of water supplies and 
 drainage systems, the paving, lighting, and cleaning of highways," etc. 
 After calling attention to the high degree of scientific training which 
 such matters require, he notes " the antiquated methods of municipal 
 administration, and particularly the short and insecure tenures for the 
 heads of departments," as being responsible for " the greater part of 
 the municipal evils which are bringing discredit on free institutions." 
 
 Much that he says can be applied with equal force to the state govern- 
 ments. Massachusetts, it is true, is far in advance of most of the states 
 in the care exercised in choosing officers. Here experts are usually pre- 
 ferred to politicians, and competent officials are retained for long periods. 
 Even Massachusetts, however, has something to learn along these lines. 
 
 Having considered the origin and duties of the boards and commis- 
 sions, attention should now be turned to the relations of these new 
 organs of government to other and older features of the general frame- 
 work of the state. We should know how they are articulated with the 
 executive, legislative, and judicial departments, as well as their relations 
 with the local government. 
 
 III. Relation of the Boards and Commissions to the Governor 
 AND THE Legislature 
 
 State commissions, whether composed of several members, usually 
 three or more, as is generally the case, or of only a single commissioner, 
 are constituted through appointment of the members by the governor, 
 subject usually to confirmation by the Senate. Reports are made in 
 some cases to the legislature, in others to the governor. 
 
 It frequently happens that the law organizing the commission is so 
 expressed as to give the governor, after making the appointment of its 
 members, no further control over the actions of that body. The power 
 of removal either is denied him, or is hedged about in such a way as to 
 make its exercise practically impossible except for the grossest malfea- 
 sance. Often the legislature has granted these commissions almost com- 
 plete power in their sphere, and placed in their hands the uncontrolled 
 expenditure of large sums of money. On their appointment by the gov- 
 ernor they are launched in their orbit with practically no one to restrain 
 or limit their action within the law. The governor's reputation may 
 suffer by their action, yet, as he has practically no power of removal, he 
 is helpless, except so far as he may direct public attention to the wrong- 
 doing. In effect, the commission system establishes a fourth department 
 of government directly responsible neither to the people, for the members 
 
232 
 
 AMERICAN STATE GOVERNMENT 
 
 are seldom elected ; nor to the legislature, for it does not appoint or 
 remove ; nor to the governor, for, though he appoints, it is seldom he 
 has the power of removal. 
 
 Of the changes that have taken place in the structure and function 
 of the state government during the century, none seems more striking 
 or more suggestive than the growth of this fourth department of gov- 
 ernment. Of course the commissions are intimately connected with the 
 three traditional departments in certain ways, — e.g. appointment, re- 
 ports, etc., — and are dependent upon them in an important respect for 
 supplies, etc. ; nevertheless, they have a field of their own, an orbit 
 traversed only by themselves. 
 
 In Massachusetts, where the system has attained its fullest develop- 
 ment, complaints are frequently heard of the multiplication of boards 
 and commissions, of their failure to work together, of their irresponsi- 
 bility, and the expense necessary for their maintenance ; but one who 
 studies the signs of the times will hardly expect that the functions as- 
 sumed by these organizations will be given up by the state. Most of 
 them have clearly demonstrated their usefulness. 
 
 The growth of the commission system stands in intimate relation 
 with a clearly discernible tendency in the character of the governor's 
 position. While the office of President of the United States has been 
 growing in power since the adoption of the Constitution, the office of 
 governor in the states has been decreasing in importance. The reason 
 is, in large part at least, that with the growth of administrative work on 
 the part of the national government has gone a corresponding increase 
 in the influence of the President. Usually Congress, when establishing 
 new administrative features, has placed them under the President's 
 direction ; and as he has had, during almost the whole period, full power 
 of removal as well as of appointment, he has been enabled personally to 
 control and direct the whole administration from top to bottom. Very 
 different has been the history of the governor. Whether from jealousy 
 or from distrust, it has been the almost invariable practice for the legis- 
 lature to retain in its own control a considerable amount of adminis- 
 trative work ; and what has been transferred to the executive has been 
 given to him with qualifications. 
 
 A re\'ersal of this policy is strongly advocated in some quarters, and 
 a vigorous effort is making to rehabilitate the governor, — to make him 
 not merely the nominal but the real head of the administration, respon- 
 sible for its doings, and able to carry out a consistent and comprehen- 
 sive policy. It is not sufficient, the argument goes, to give him merely 
 the power of appointment : it is necessary that he have also the power 
 of removal. If we believe, as we claim we do, in the old Montesquieuan 
 view of the necessity of a division of the powers of government among 
 three departments which shall be independent of one another and suffi- 
 ciently powerful to act as a real check upon one another, something must 
 
THE STATE ADMINISTRATION 233 
 
 be done to raise the executive from the position of innocuous desuetude 
 into which it is slowly sinking. 
 
 To make the governor the real head of the growing administrative 
 organization that is seen in the boards and commissions, would greatly 
 strengthen his position, and at the same time do away with this fourth 
 department, composed of independent administrative bodies, which seems 
 to have no true place in our system of government, and which prevents 
 the proper working of our system of checks and balances. 
 
 IV. Relation of the Boards and Commissions to the Courts 
 
 It is important to know the legal status of these new organs of gov- 
 ernment. They have occasionally come in contact with the courts : how 
 have they fared ? May a legislature delegate such important powers as 
 are now exercised by many commissions ? Does the legislature itself 
 possess the powers which commissions claim ? If the legislature does 
 possess them and may delegate them, are there restrictions in the 
 United States Constitution or elsewhere on their exercise by these 
 commissions "i Such are the more important questions that present 
 themselves on any extended examination of this subject. These various 
 questions I now propose to answer, so far as possible, in the words of 
 the court. The first question is that as to the right of the legislature to 
 supervise, regulate, or manage the various matters that have been in- 
 trusted to boards and commissions. 
 
 The Supreme Court of the United States, in the famous case of Munn 
 vs. Illinois,^ laid down this principle in the course of their decisions : 
 
 When, therefore, one devotes his property to a use in which the public has 
 an interest, he, in effect, grants to the public an interest in that use, and must 
 submit to be controlled by the public for the common good, to the extent of 
 the interest he has thus created. 
 
 Certainly this is a very broad doctrine, and seems sufficient to cover 
 the different interests represented by the state boards and commissions. 
 It has not gone without question, however ; and in the case of Budd vs. 
 N. Y.,^ decided in .1892, the case of Munn vs. Illinois was reviewed and 
 adhered to. But there was a strong dissenting opinion, and the follow- 
 ing extract will give the point of view and ground of objections : 
 
 The vice of the doctrine is that it places a public interest in the use of 
 property upon the same basis as a public use of property. Property is devoted 
 to a public use when and only when the use is one in which the public in its 
 organized capacity, to wit, the state, has a right to create and maintain, and, 
 therefore, one which all the public has a right to demand and share in. The 
 use is public, because the public may create it, and the individual creating 
 .it js doing thereby and pro tanto the work of the state. The creation of all 
 I94U. S. 113. 2143U. S. 517. 
 
2 34 
 
 AMERICAN STATE GOVERNMENT 
 
 highways is a public duty. . . . But this public use is very different from a 
 public interest in the use. There is scarcely any property in whose use the 
 public has no interest. . . . 
 
 The paternal theory of government is to me odious. The utmost possible 
 Uberty to the individual, and the fullest possible protection to him and his 
 property, is both the limitation and duty of government. If it may regulate 
 the price of one service, which is not a public service, or the compensation 
 for the use of one kind of property which is not devoted to a public use, why 
 may it not, with equal reason, regulate the price of all service, and the com- 
 pensation to be paid for the use of all property ? And if so, " Looking Back- 
 ward " is nearer than a dream. 
 
 This view was not, however, the view of the court, and we must con- 
 clude, from the above discussion, that the' legislature possesses the power 
 in question. The next point to be considered is its right to delegate the 
 exercise of the power to boards, commissions, or officers. 
 
 In the case Railroad Co. vs. Gibbes,^ decided by the United States 
 Supreme Court in 1892, the question of compelling the railroad com- 
 panies to bear the expense of maintaining a state railroad commission 
 was under consideration. The court, after showing that the provisions 
 of the law assigned to the railroad commission certain duties, which, when 
 " properly discharged, must be in the highest degree beneficial to the pub- 
 lic, securing faithful service on the part of the railroad companies, and 
 safety, convenience, and comfort in the operation of their roads," pro- 
 ceeded to state his opinion that " the state had, without doubt, the power 
 to prescribe the regulations mentioned, because, though the railroad 
 companies were private corporations, their uses were public." It then 
 uses the following language, of special importance to the point under 
 consideration : 
 
 The regulations may extend to all measures deemed essential not merely to 
 secure the safety of the passengers and freight, but to promote the convenience 
 of the public in the transaction of business with them, and to prevent abuses 
 by extortionate charges and unjust discriminations. It may embrace a general 
 supervision of the operations of their roads, which may be exercised by direct 
 legislation, commanding or forbidding, under severe penalties, the doing or 
 omission of particular acts, or it may be exercised through commissions spe- 
 cially appointed for that purpose. The m,ode or manner of regulation is a 
 matter of legislative discretion. . . .^ When exercised through commissions, 
 their services are for the benefit of the railroad corporations as well as of the 
 public. Both are served, . . . and there would seem to be no sound reason 
 why the compensation of the commissioners in such cases should not be met 
 by the corporations supervised. 
 
 As bearing directly upon this point. Professor Thayer's comment will 
 be of great interest : 
 
 It may be doubted that there is any difference between the action of a legis- 
 lature and that of a legislative commission as regards the questions involved 
 1 142 U. S. 386. 2 Italics are mine. 
 
THE STATE ADMINISTRATION 235 
 
 in such a case as Chicago, etc., Ry. Co. vs. Minnesota, when once it is clear 
 that the legislature has really undertaken to confer upon the commission the 
 power in question. If the legislature can exercise it, it would seem that it may 
 confer on the commission a like authority. 
 
 Yet, as regards subordinate bodies, there is always the question of con- 
 struction as to what authority has, in fact, been conferred on them ; and in 
 passing on this, established common-law principles are applicable, which 
 ordinarily, and in the absence of clear legislative intentions to the contrary, 
 enable the courts to control their action as not authorized by the legisla- 
 ture. Similar action by the legislature itself can be condemned only if it be 
 unconstitutional.! 
 
 Having now the opinion of the highest court in the land on the powers 
 of the legislature and its right to delegate these powers, we pass to 
 a consideration of the limitation on their exercise in the hands of a 
 commission. 
 
 In the foregoing quotation from Professor Thayer, the point is em- 
 phasized that the powers of the commissions will be construed in the 
 light of established common-law principles unless the legislature clearly 
 expresses its intention that the principles shall not hold. We find in the 
 same line the Supreme Court insisting, in Chicago, etc., Railway Co. vs. 
 Minnesota,^ that the provision in the United States Constitution that no 
 person shall be deprived of life, liberty, or property without due process 
 of law, prevents a railroad commission from passing finally on the rates 
 to be charged by a railroad company when no judicial inquiry is instituted, 
 that is, when there is nothing that corresponds with due process of law. 
 The Minnesota statute that established the railroad commission was in- 
 terpreted by the supreme court of that state as providing that the rates 
 settled upon by the commission should be final and conclusive as to what 
 are equal and reasonable charges, and that there could be no inquiry by 
 the courts as to the reasonableness of said rates. Accepting this inter- 
 pretation of the statute as correct, the Supreme Court of the United 
 States declared : 
 
 It deprives the company of its right to a judicial investigation by due process 
 of law, under the forms and with the machinery provided by the wisdom of 
 successive ages for the investigation judicially of the truth of a matter in con- 
 troversy, and substitutes therefore, as an absolute finality, the action of a rail- 
 road commission which, in view of the powers conceded to it by the state 
 court, cannot be regarded as clothed with judicial functions or possessing the 
 machinery of a court of justice. . . . 
 
 No hearing is provided for, no summons or notice to the company before 
 the commission has found what it is to find and declared what it is to declare, 
 no opportunity provided for the company to introduce witnesses before the 
 commission, in fact, nothing which has the semblance of due process of law ; 
 and although, in the present case, it appears that, prior to the decision of the 
 commission, the company appeared before it by its agent, and the commission 
 1 Thayer, Cases in Constitutional Law, I, 672. 2 134 U. S. 418. 
 
236 AMERICAN STATE GOVERNMENT 
 
 investigated the rates charged by the company for transporting milk, yet it 
 does not appear what the character of the investigation was, or how the result 
 was arrived at. 
 
 The principle here enunciated as applying to railroad commissions 
 will, of course, apply to any other commission that tries to exercise the 
 power of regulating charges. It is clear, therefore, that the federal courts 
 stand as a bulwark against any final deprivation of life, liberty, or 
 property by a commission, and that the actions of the commissions are 
 subject to review by the courts. Undoubtedly this is a serious, though 
 probably a salutary, restraint. The difficulty is that the court must judge 
 a mass of detailed information that it has neither the time nor the expert 
 knowledge to consider properly, and a conscientious attempt of the judges 
 to master the problem gives the opportunity, so frequently abused, of 
 delaying the operation of the commission's orders in a given case. 
 
 V. Relation of the Boards and Commissions to the Local 
 Governments 
 
 In the establishment of all the state commissions, and especially of the 
 executive commissions, there is observable a decided movement toward 
 centralization. It is curious to note, in this connection, that in the coun- 
 tries of the Old World where centralization has been carried farthest, 
 namely France and Germany, there is a decided movement toward de- 
 centralization.^ It is probable that extreme centralization and extreme 
 self-government of localities are both undesirable, and a moderate degree 
 of each is preferable. This, it seems to me, is the conclusion derivable 
 from experience in the four countries of the world where government 
 and administration have received the most intelligent and continuous 
 consideration. Thus, it is going too far in the direction of centralization, 
 it seems to me, when the control of the local police is taken from the 
 locality ; and too far in the direction of local self-government when great 
 thoroughfares, in which many communities are interested, are left to 
 the unaided and usually unintelligent management of a nonprogressive 
 locality. There is a mean here, as elsewhere, and it is the place of the 
 statesman to discover it. He must find the point where local self-respect 
 and initiative are preserved, and yet the general interests are sufficiently 
 secured. 
 
 The experience of the Massachusetts Highway Commission presents 
 something of value in this connection. It has been so universally the 
 custom in this country to make the roads a local matter, that intrusting 
 to the state a share in construction and management was pioneer work, 
 
 1 Now while the tendency of the United States and England has been toward adminis- 
 trative centralization, the tendency in France and Germany has been toward administrative 
 decentralization. Within the last twenty years many matters which formerly were regulated 
 by the instructions of the heads of departments have been put into the hands of the officers 
 of the locaUties to be attended to in their own discretion. — Goodnow. 
 
THE STATE ADMINISTRATION 237 
 
 with no precedents.^ Careful consideration was given to the best way 
 of preserving local interests in the roads, and also of preventing that 
 " pauperizing " of localities so apt to occur if the state assumes the 
 whole burden. The following points embody the solution of the prob- 
 lem that commended itself to the framers of the act organizing the 
 Massachusetts Highway Commission : 
 
 1. Road construction is undertaken by the state commission only on 
 petition by local authorities. 
 
 2 . One fourth of the amount expended by the state must be returned 
 within six years by the courities in which the work is done. 
 
 3. The localities are encouraged to bid for the construction of the roads 
 in their areas, and are given thirty days to decide whether they will elect 
 to do the work at, the terms proposed by the commission. If they do not 
 so elect, private contractors are permitted to bid. 
 
 The value of these provisions will be recognized at once. Not only will 
 the attention of the people be turned to the condition of the highways in 
 their vicinity, but, if they undertake the work, much valuable experience 
 wUl be obtained in scientific road building ; for all work must be done 
 according to the plans and under the supervision of engineers 'sent by 
 the state commission to reside at that point until the work is completed. 
 Again, by sharing the expenditure with the state, the locality will have a 
 deeper interest in the road, and feel very much as if it were paying its 
 own way ; for even a fourth of the whole cost of construction will involve 
 a perceptible increase in the tax levy. 
 
 After a short experience it was found desirable to simplify the process 
 of petitioning for road construction. It has also been made easier for 
 towns and cities to undertake for themselves the work of construction, 
 by repealing the rather ill-advised check on the cornmission's power to 
 contract. The first act stated that the town or city could not be allowed 
 more than 85 per cent of the original estimate of cost of construction 
 made by the commission. A later law leaves the matter of terms without 
 any such limitation. 
 
 Massachusetts has made other attempts than the one just noted to 
 adjust properly local self-government and state control. The most inter- 
 esting, perhaps, are the various metropolitan commissions, that have for 
 their object the unifying of the action of several communities grouped 
 around a great city. The duties and powers of these commissions have 
 already been described, and I refer to them here simply to note the dif- 
 ference between the solution adopted "by Massachusetts and that adopted 
 by New York and Illinois for the same problem. In the latter states, 
 Chicago absorbed its environs bodily, and New York did likewise. Bos- 
 ton bearing, it is true, somewhat different relations to its near-by towns, 
 has been content to secure united action in certain important matters by 
 
 1 New Jersey, it is trae, had made some beginnings in general road improvement, but the 
 plan did not involve centralization. 
 
2 38 AMERICAN STATE GOVERNMENT 
 
 the appointment of these metropolitan commissions, but has left the sev- 
 eral towns free to manage their own local affairs. This would seem to 
 be following closely the example of our national system, and it is quite in 
 line with the idea of the golden mean between state and local control. 
 
 VI. The Future of the Commission System 
 
 It seems hardly possible that the present system of almost independent 
 commissions can be permanent. They fail to work in harmony, to co- 
 operate, to give each other the benefit of experience that might be help- 
 ful. In the absence of a central control there is no way to coordinate the 
 duties of the several boards. The present seems to be a transitional 
 stage, arising from the gradual assumption, by the state, of new duties 
 without an adequate realization of all that is involved, and without any 
 general plan. One can see in it a certain likeness to conditions just be- 
 fore Napoleon I assumed the government of France, and I am tempted 
 to predict an outcome similar in nature to the administrative system 
 he established. The French precedent is thus described by President 
 Woodrow Wilson : 
 
 The Convention and Assembly had endeavored to direct affairs through 
 committees, commissions, councils, directories, — through executive boards^ 
 in a word. For such instrumentalities Napoleon substituted single officers as 
 depositaries of the several distinct functions of administration ; though he was 
 content to associate with these officers advisory councils, whose advice they 
 might ask, but should take only on their own individual responsibility. " To 
 give advice is the province of several ; to administer, that of individuals," says 
 the maxim which he engraved on the pediment of the administrative arrange- 
 ments of France.^ 
 
 It will be noticed that Napoleon provided for advisory councils. Per- 
 haps this would solve the problem of securing the advice and assistance 
 of persons whose experience or talents would be of great value to the 
 state, but who cannot be induced to enter its service as paid employees. 
 If such persons could be associated, as an advisory body, with the execu- 
 tive head of each department or division, the double advantage of wise 
 counsel and efficient administration would be attained. 
 
 Such a solution of one great problem must be accompanied by some 
 scheme for the proper grouping of the commissions into executive 
 departments. No doubt a number of possible combinations might be 
 proposed. I suggest the following scheme, which provides for all the 
 important boards, and groups together those handling similar matters. 
 It is based on the existing conditions in Massachusetts : 
 
 Department of Education : Public Schools ; Nautical Training ; Free Public 
 Libraries ; Normal Schools. 
 
 Department of Examinations : Civil Service ; Dentistry ; Medicine ; Phar- 
 macy ; Pilots. 
 
 1 The State, rev. ed., p. 214. 
 
THE STATE ADMINISTRATION 239 
 
 Department of Manufactures : Labor Statistics ; Arbitration and Concilia- 
 tion ; Inspection of Manufactures ; Lumber ; Liquors ; etc. 
 
 Department of Agriculture : Agriculture ; Cattle ; Dairy ; Horticulture ; In- 
 land Fish and Game. 
 
 Department of Corporate Control : Railroads ; Gas ; Telephone ; Street 
 Railways ; Banks ; Insurance. 
 
 Public Works: Highways; Parks; Sewerage; Buildings; Land; Harbor. 
 
 Department of Charities and Corrections: Lunacy, Feeble-Minded, Blind, 
 etc. ; Charity Work ; Prisons, Reformatories, etc. 
 
 Department of Public Safety : Health ; Fire Marshal ; Police. 
 
 By way of summary and conclusion, the whole situation may be 
 thus put : 
 
 The people of the several states, especially those in which there is an 
 active commercial, political, or intellectual life, are steadily insisting that 
 their state governments shall take a more active part in affairs, shall be 
 a positive force in creating better conditions and regulating old ones. 
 They have been feeling their way by the establishment of commissions 
 charged especially with certain duties of this nature. 
 
 From the first, appointments to the paid places have to a considerable 
 extent been made without due regard to fitness or special ability. The 
 nonpaid places have frequently secured excellent men ; but because these 
 have been unable or unwilling to give their whole time to the state, cer- 
 tain evils have arisen from the partial service. Gradually, however, there 
 is arising a demand for the best men and for their whole time. When 
 this demand becomes sufficiently strong to insure adequate compensa- 
 tion, permanent employment, and considerate treatment, the state wiU be 
 able to secure the service it needs. 
 
 Meanwhile a movement for consolidation of the boards into depart- 
 ments has been growing. Eventually, departments will be formed in 
 most states, I believe, and perhaps there will be attached to them advi- 
 sory councils, made up of citizens whose wisdom and influence could not 
 otherwise be secured. The governor will be the head of the administra- 
 tive system, and responsible for its proper management. Like the Presi- 
 dent of the United States, he will have the power of removal. 
 
 How far the state wiU go in its supervisory, executive, and examining 
 work, no one qan predict ; but the end is still far off, and I look for a 
 great extension of state activities. Yet it is to be hoped that it will not 
 go so far as seriously to check individual initiative nor weaken personal 
 responsibility. 
 
240 AMERICAN STATE GOVERNMENT 
 
 THE PUBLIC SERVICE COMMISSIONS LAW OF 
 NEW YORK^ 
 
 By Thomas Mott Osborne 
 
 The events which led to the passage of the Public Service Commis- 
 sions Law in the state of New York are of such recent occurrence that 
 it might not be unnatural to assume that they are still fresh in the minds 
 of every one interested' in public affairs ; but in our country political 
 memories are so very short that it is never safe to assume a clear recol- 
 lection of the most elementary facts in the situation of even two years 
 ago. Four years is a political generation — the life of a national adminis- 
 tration — and our whole political thought and action is thereby chopped 
 into very short units. 
 
 In New York state, with its governor's term of two years, our political 
 memories tend to be even shorter than in national affairs ; and certainly 
 it seems as if recent events had moved with almost enough rapidity to 
 justify our vagueness. It is but little more than three years since the 
 struggle for control of a great life-insurance company brought about a 
 sort of family quarrel among its directors ; that quarrel uncovered a grave 
 condition of affairs, in which of necessity the public was seriously inter- 
 ested ; that interest led to a legislative investigation ; that investigation 
 brought to the front an experienced, able, and fearless lawyer who had 
 hitherto lived but little in the public eye ; and that able lawyer probed 
 the life-insurance scandals with such marked ability, high professional 
 standards, and remorseless vigor that, when the Republican party of the 
 state, crippled by savage quarrels among its leaders and much discredited 
 by its recent record, looked about for a candidate who could win the 
 election of 1906, it recognized that he was the one man who could defeat 
 the political combination which had been formed against it. 
 
 It certainly is no secret that among the states of the Union, New York 
 has endured its full share of that reckless disregard of the rules of sound 
 finance which has characterized the rapid development of our public utili- 
 ties in the last fifty years. In fact, we have had rather more than our 
 share of the violation of monetary sanity and economic morals (to say 
 nothing of economic decency) that has accompanied that development. 
 The scandals attendant upon the earlier operations of the New York 
 Central Railroad, the performances of Jim Fiske and his printing press in 
 the manipulations of the Erie, the story of Jacob Sharpe and his Broad- 
 way franchise, and last but not least the Interborough-Metropolitan 
 merger, are only the more striking chapters in a long story of intrigue, 
 corruption, and disgrace. The annals of almost every city in the state 
 can show their own version of the combination of scheming promoters, 
 selfish investors, uninterested citizens, and greedy politicians ; their own 
 
 1 From the Atlantic Monthly, April, rgoS. Reproduced by permission. 
 
THE STATE ADMINISTRATION 241 
 
 record of valuable rights given away without foresight and often with the 
 most revolting concomitants of bribery and corruption. 
 
 It would, of course, be grossly unfair to blame the condition of things 
 which resulted entirely upon the corporations which were formed to de- 
 velop the public utilities and to which the public grants or franchises were 
 given. At the best they were developing services of vast importance 
 to the communities ; at the worst we can only say that it seems to be 
 human nature with too many people in the business world to grasp at 
 what seems to be for their greatest pecuniary advantage, without trou- 
 bling themselves very much about general ethical considerations. On the 
 other hand the " plain people " — the very ones who ought to be most 
 interested in good government — have seemed to be the very ones most 
 unconcerned. 
 
 For a number of years, however, there has been developing a distinct 
 change in the temper of the public mind toward such matters. There 
 has arisen a renewed sense of the hatefulness of public dishonesty, a re- 
 newal of belief in the public trust involved in public office. If some of 
 the manifestations of awakened conscience seem rather too overstrained 
 and sensational to be quite sound or lasting, yet such states of mind 
 often aid in producing important political results — as was the case in 
 the autumn of 1906. 
 
 At that time there seemed to come about a political crisis as sudden 
 as it was unexpected, although to the more farsighted it had been in 
 truth preparing for several years. A not unnatural sense of injury and 
 grievance had grown .up as the public had followed the testimony in dif- 
 ferent investigations which seemed to open up ever new vistas of cor- 
 ruption ; as it had followed the proceedings in the Standard Oil cases ; 
 had perused the highly colored revelations of " high finance " — by "' one 
 of themselves " ; and had watched the proceedings of various reckless 
 promoters and financiers, seeing those favored individuals amassing vast 
 fortunes the origin of which lay in the public franchises which had been 
 procured upon such easy terms. 
 
 It is at periods like this, when the people has lost confidence in its 
 servants, in its old leaders, in the very framework of the social structure, 
 — apparently almost losing faith in democratic self-government itself, — 
 and is calling for some political Moses to lead it out of bondage, that 
 there comes the moment eagerly awaited by the demagogue. Trading 
 upon the righteous anger of the just, upon the prejudices of the unrea- 
 soning, upon the cupidity of the mercenary, upon the timidity of the pol- 
 itician, the demagogue becomes suddenly a menace to society — a menace, 
 not because he may not be entirely right in his analysis of the situation, 
 but because from the nature of the case he is a destructive and not a 
 constructive force, and because he is always seeking, not how to apply 
 genuine remedies, not how to safeguard the interests of the mass, but 
 only how to turn the situation to his own personal advantage ; a menace, 
 
242 
 
 AMERICAN STATE GOVERNMENT 
 
 because, even if he is honest in his aims, he has faith in progress by 
 revolution rather than progress by evolution, believing in miracles rather 
 than in science. 
 
 It is distinctly to the credit of the people of New York state that in 
 the midst of a genuine crisis of political feeling there should have been 
 shown such careful weighing of all considerations before political action ; 
 that amid forceful appeals to passion and prejudice, based upon undoubted 
 public grievances, there should have been upon both sides so much honest 
 endeavor to think clearly and act justly. Probably at no election ever held 
 in New York state was there so complete a breakdown of the ordinary 
 political barriers. Republicans by thousands voted the Democratic ticket 
 in whole or in part ; Democrats by thousands voted the Republican ticket 
 in whole or in part. While outwardly old party forms were maintained, in 
 reality party ties in a large measure ceased to exist. 
 
 As the campaign developed it became a genuine choice between one 
 who preached the gospel of disorder,^ under cover of a righteous outbreak 
 against existing conditions on the one side, and on the other an exponent 
 of calm, sane, and orderly progress. And it is a humorous illustration of 
 the irony of history that the Republican party, which of the two political 
 parties may fairly be held far the more responsible for the evils of the 
 situation, should have been the one to place in nomination the genuine 
 reformer ; while the Democratic party should have thrown away the 
 chance of a generation by allowing its opponents to play once more 
 the old game so aptly described by Disraeli at the time of the repeal of 
 the Corn Laws, when he averred that Peel had caught the Whigs in 
 bathing and had run off with their clothes. 
 
 The result of the election was to seat in the governor's chair an able 
 and successful lawyer, a Republican, who aims always to place state 
 interests before partisan advantage, a man of the sincerest and most con- 
 firmed honesty, of a high ideal of public service, of determined convictions 
 yet open mind ; moreover, a man who realized fully that his election was 
 simply an expression of public confidence in him personally in the midst 
 of his party's defeat. Governor Hughes realized to the full the political 
 difficulties of the situation and the dangerous temper of the public mind, 
 along with the genuine grievances which lay behind and were the cause 
 of it ; so he at once set himself to grapple with the problem in the calm 
 temper of a true statesman. The Public Service Commissions BiU was 
 the outcome. 
 
 The law as it was passed contains five articles, the main points of which 
 may be briefly touched upon. 
 
 1/ I. By Article One the state is divided into two districts, with a separate 
 fand independent commission for each. The first district includes what is 
 
 1 " As between Rottenness and Riot," said Mr. Bourke Cochran, when defending his can- 
 didate at the Buffalo Convention, " I prefer Riot." A unique way, certainly, of recommending 
 a nominee for governor. 
 
THE STATE ADMINISTRATION 
 
 243 
 
 known as Greater New York, — the four counties of New York, Kings, 
 Queens, and Richmond (or New York City, Brooklyn, Long Island City, 
 and Staten Island), — and the second includes all other counties in the 
 state. This division, suggested by the great difference in character of the 
 problems in the two districts, has been already justified by experience. 
 
 The ten commissioners, five for each district, are appointed by the 
 governor subject to the approval of the Senate, but removable by the gov- 
 ernor alone. They must have no official relation to any corporation sub- 
 ject to the provisions of the act, nor own stocks or bonds therein. Neither 
 shall they ask the appointment of any person to office by such corpora- 
 tions or receive from them any pass or reduction in fare. 
 
 Each commission appoints its own counsel, secretary, and minor em- 
 ployees, and each single commissioner has full power to hold investigations 
 and hearings, although an order must be approved by the commission 
 before it becomes operative. The commission is not bound by the techni- 
 cal rules of evidence, but is free to get at the facts in the quickest and 
 simplest way possible. All witnesses are duly protected, and the com- 
 mission can force attendance and secure testimony, refusal constituting 
 a misdemeanor. 
 
 2. Article Two prescribes the duties of common carriers, which term 
 includes, according to the wording of the act, " all railroad corporations, 
 street-railroad corporations, express companies, car companies, sleeping- 
 car companies, freight companies, freight-line companies, and all persons 
 and associations of persons, whether incorporated or not, operating such 
 agencies for public use in the conveyance of persons or property." 
 
 Common carriers shall furnish to the public " such service and facilities 
 as shall be safe and adequate and in all respects just and reasonable " ; 
 and " all charges made or demanded . . . shall be just and reasonable and 
 not more than allowed by law or by order of the commission." They 
 shall provide proper switch and side-track connections, and shall file and 
 keep open for " public inspection schedules showing the rates of fare and 
 charges for the transportation of passengers and property." 
 
 There shall be no special rate, rebate, or unjust discrimination of any 1 
 kind ; no " free ticket, free pass, or free transportation of passengers/ 
 or property," exception being made of officers of the railway and cer-j 
 tain other specified individuals. But this provision is not to prevent thef 
 issuing of mileage or commutation tickets. ( 
 
 There must be sufficient and suitable cars for freight in carload lots ; 
 sufficient cars and motive power on railroads and street railroads to meet 
 all requirements for the transportation of passengers and property ; the 
 commission being expressly given power to make suitable regulations for 
 the furnishing of freight cars and for demurrage charges. 
 
 3. Article Three continues the provisions relating to common carriers, 
 dealing especially with the powers of the commission for carrying the 
 provisions of Article Two into effect. 
 
244 AMERICAN STATE GOVERNMENT 
 
 Power is given to the commission : 
 
 {a) To examine into the general condition, capitalization, franchises, 
 and management of all common carriers ; 
 
 {b) To examine all books, contracts, records, documents, and papers, 
 and to compel their production ; 
 
 {c) To conduct hearings and take testimony on any proposed change 
 of law when requested to do so by the legislature, by the Senate or 
 Assembly Committee on Railroads, or by the governor; 
 
 {d) To prescribe the form of annual reports ; 
 
 (e) To investigate accidents ; 
 
 (/) To investigate as to any act done, or omitted to be done, in viola- 
 tion of law or of any order of the commission ; 
 
 (g) To fix rates and service ; 
 
 (h) To order repairs, improvements, or changes in tracks, switches, 
 terminals, motive power, or any other property or device, in order to 
 secure adequate service ; 
 
 (z) To order changes in time schedules by increasing the number of 
 trains, cars, or motive power, or by changes in the time of starting its 
 trains or cars ; 
 
 {j) To establish a uniform system of accounts and prescribe the 
 manner in which they shall be kept. 
 
 The approval of the commission is necessary for various things. With- 
 out it 
 
 (a) No construction of a railroad or street railroad, or extension of 
 existing lines, shall be begun ; 
 
 (b) No franchise shall be assigned or transferred ; 
 
 {c) No railroad or street railroad or other stock corporation shall pur- 
 chase or hold any capital stock of any other road ; 
 
 (d) No stocks, bonds, notes, or other evidences of indebtedness (ex- 
 cept notes payable within twelve months) shall be issued ; 
 
 (e) No merger or consolidation of existing companies shall be made ; 
 and in case such merger is approved, it is provided that the capital 
 stock of the merger shall not exceed the sum at par of the capital 
 stock of the corporations so consolidated or any additional sum paid 
 in cash. 
 
 The penalties for failure to comply with an order of the commission 
 are drastic. Each day's violation constitutes a separate offense, and for 
 each offense the penalty is $5000 if by a common carrier, ^1000 if by 
 other than a common carrier. Every individual who aids or abets any 
 violation of an order of the commission, or who fails to obey, or aids or 
 abets any corporation in its failure to obey, is guilty of a misdemeanor. 
 In case the commission believes that a common carrier is violating the 
 law or an order of the commission, it may commence an action to secure 
 relief by way of mandamus or injunction, and the court shall require an 
 answer within twenty days. 
 
THE STATE ADMINISTRATION 245 
 
 ] 4. Article Four applies practically similar provisions to the gas and 
 electric companies. It also provides for inspection of all gas and electric 
 ' meters. The commission has the right to fix rates upon proper complaints 
 as to quality or price, not only of that supplied by private persons and 
 corporations, but of that supplied by municipal lighting plants as well ; it 
 has power to examine the books and affairs of the producers, to approve 
 of all incorporation and franchises, and of all stocks, bonds, and other 
 indebtedness ; in short, this article is similar in aim to the preceding, al- 
 though, having been drafted with less success, it is in places somewhat 
 obscure. It is to be hoped that amendments to the law will soon remedy 
 these defects. 
 
 5. In Article Five the act comes to an end with the abolition of the 
 former Railroad, Gas and Electricity, and New York City Rapid Transit 
 commissions, and the state inspectors of gas meters, followed by the 
 necessary provisions for the transfer of records, the continuance of 
 pending actions and proceedings, and the necessary appropriations. 
 
 But there has not been mentioned the most vital and far-reaching 
 clause of the bill. In Section 55 occurs the following : " Tke commission 
 shall have no power to authorize the capitalization of any franchise or the 
 right to own, operate, or enjoy any franchise whatever in excess of the 
 amount {exclusive of any tax or annual charge) actually paid to the state 
 or to a political subdivision thereof as the consideration for the grant of 
 such franchise or right." In other words, the law decrees that hereafter 
 the grant given by state or municipality shall not be treated as a private 
 asset of the corporation and its value represented in stock, but that the 
 value of the franchise and the increment thereof shall remain forever 
 the property of the state. 
 
 To call this law a piece of radical legislation is to speak mildly; it 
 seems to mark an epoch in the history of New York state ; for the 
 corporations affected by the stringent provisions of the law are among 
 those upon which the whole structure of our present business system 
 rests. Without the railroads modern commerce would be . impossible ; 
 without the street railroads our cities could not spread their vast popu- 
 lations out into their ever-growing suburbs, and social conditions would 
 be completely altered ; gas and electricity are not merely essential to 
 our comfort, they are necessary to the existing order, — ■ all of these pub- 
 lic utilities are vital elements in the lives of every one of us, and a law 
 which compels such a complete readjustment of their relations to the 
 state on the one side and the public on the other is not merely radical, 
 it is revolutionary. 
 
 To many people the bare suggestion that state or municipality shall 
 undertake to regulate any business hitherto in private hands is at 
 once denounced as " socialism." I must confess to having only the 
 vaguest notion of what " socialism " is, but judging from the current 
 use of the term it means anything you want the state to do that I do 
 
246 AMERICAN STATE GOVERNMENT 
 
 not want it to do. It has been urged against the Public Service Com- 
 missions Law that it is " socialism." Perhaps it is ; but people are not 
 going to be frightened by a mere word. Before we begin to tremble, 
 suppose we look the facts squarely in the face and see what this law is 
 intended to accomplish, and recall why it seemed necessary for such a 
 law to be passed. And it might be well for us to disabuse our minds 
 of preconceived notions and prejudices for things as they are, and think 
 rather of things as they ought to be. 
 
 The English race, including ourselves as at least a political branch 
 thereof, has certainly never shown any great liking for monopolies. 
 When such were fostered by government and bestowed by royal pre- 
 rogative they were the objects of popular hatred and the causes of re- 
 bellion ; and the feeling against them to-day is less strong only because 
 we have felt ourselves to so large an extent free of them. Some of us, 
 to be sure, have seen in the iniquities of our tariff some of the worst 
 features of monopolies ; but we have never as yet succeeded in impress- 
 ing these views very deeply upon the mass of our fellow citizens. The 
 general public, feeling that it owned and could control the government, 
 has been singularly careless and thoughtless in the matter until of late ; 
 for it felt that in any event the remedy was close at hand. The old 
 cure for monopolies was a simple one, — abolish government protection 
 and let competition have its way. And in most cases where a monopoly 
 seeks to control the output of some ordinary article of trade or manu- 
 facture, this remedy has been successful ; and the belief that " compe- 
 tition is the life of trade " has been until lately one of the articles of 
 commercial orthodoxy. 
 
 When our great modern public utilities first came into being, they 
 were not recognized as infant monopolies. When a man wished to build 
 a railroad he was regarded only as a daring adventurer who was about 
 to start a new and superior line of coaches on a strange private high- 
 way, — merely a new element of competition. It was the same with a 
 gas company, gas being at first only a new-fangled light trying to prove 
 its doubtful superiority over lamps and candles. Electricity was in its 
 turn only a competitor of gas ; a street-car line a competitor of the 
 more expensive cab company ; an interurban trolley a competitor of the 
 railway. All these were merely new and comparative conveniences 
 which science was putting within our reach, which we could trust private 
 ownership to develop, and which competition would regulate. The 
 ordinary American merchant or manufacturer, intent upon his own 
 business and satisfied if he was making it pay, was also satisfied if he 
 was getting from railroad, express company, telegraph, or telephone the 
 service that his own particular business required ; and he was little 
 inclined to question the right of investors, who were bringing to him the 
 business advantage of a very useful public service, to do what he him- 
 self was doing, — make as much money as possible on the investment. 
 
THE STATE ADMINISTRATION 247 
 
 And while merchants and manufacturers were thus absorbed and 
 the general public indifferent, what was originally a mere competitive 
 public convenience was fast becoming a public utility ; and then, before 
 we realized it, it had become an absolute public necessity. We sud- 
 denly woke to find the business world struggling to readjust itself to 
 new and strange conditions, — to the pressure of brutal bigness : enor- 
 mous railway systems, gigantic mergers, world-wide trusts, accumulators 
 of fabulous miUions ; the vast scale of the operations seemed in itself 
 terrifying. 
 
 The old theory was that railroad or gas company, trolley or power 
 company, under a minimum of public supervision, should be managed 
 like private business corporations, — primarily, if not exclusively, for the 
 financial benefit of the investors. To be sure, under the fostering care 
 of the older generation of railroad manipulators, that theory received 
 some rather severe shocks, and we realized that the investors frequently 
 failed to get their share of the profits ; nevertheless, whatever the prac- 
 tice, the theory was still held to be sound. But under the new order, 
 our ideas have changed, .as we have seen these great railroad systems 
 utilized by commercial monopolies to fasten their hold upon the public 
 and crush out competition with remorseless vigor ; as we have seen 
 valuable franchises secured for favored individuals, all too frequently by 
 methods utterly abhorrent both in law and morals ; as we have come to 
 realize the power which lies in the hands of an irresponsible board of 
 directors to stimulate artificially one community while it may destroy 
 another ; as the knowledge has been slowly burned into our conscious- 
 ness that public-service corporations were after all managed by men 
 very human in their weaknesses, greedy for power and wealth, and no 
 more successful in resisting temptation than the rest of mankind. 
 Studying these corporations more closely, we have seen the newer com- 
 panies — railroads, interurban electric roads, and lighting companies — 
 being managed primarily if not exclusively for the benefit, not of the 
 investors, but of those who could induce investors to invest. A new 
 form of human pest has thus made its appearance, — the promoter ; and 
 a new science of commerce and banking has made its appearance, 
 which I think has not been named yet. '" New," did I say ? To some 
 of us these new friends look most uncommonly like our old acquaint- 
 ances Dick Turpin and Jack Sheppard in a fresh disguise ; and the 
 new commerce and banking have a most unseemly resemblance to an 
 old amusement known as highway robbery. Wordsworth's Rob Roy 
 was not the first to invent that 
 
 Good old rule . . . the simple plan, 
 
 That they should take, who have the power, 
 
 And they should keep who can. 
 
 Nor has he been the last. 
 
24S AMERICAN STATE GOVERNMENT 
 
 In this latest variation of the old game the interests of the investor 
 and the interests of the public alike have been overlooked ; but it is all a 
 very logical outcome of the original mistake, — the theory that a public 
 utility is a mere matter of private business. We should not therefore 
 expend our rhetoric against the corporations, — they were often more 
 sinned against than sinning ; for had it not been for our own blindness 
 they would never have been left to pursue their objects too frequently in 
 what now seems to us a highly predatory manner. 
 
 If it has taken us a long time to realize that public-service corporations 
 are in their nature monopolistic, it is also taking us a long time to get 
 over the idea that the safeguard of the public is competition. Therefore, 
 legislatures have chartered rival railroads, and common councils have 
 granted franchises to rival trolley, gas, and electric companies, only to 
 find that almost inevitably, after a brief period of cutthroat competition, 
 with threatened failure to both companies, there was a consolidation, 
 overcapitalization, and relatively, if not actually, higher charges ; and thus 
 for the poor consumer the last state was worse than the first. 
 
 In New York we seem at last to have waked up to the fact that in 
 these public utilities there not only never has been any genuine competi- 
 tion, but from the nature of the case there never could be ; we are also 
 learning that if justice is to be done to the public as well as to the cor- 
 poration, — to the buyer as well as to the seller, — something else must 
 be substituted in place of competition, and that something we are now 
 to try in the shape of state regulation. 
 
 The policy of state interference in any business is not one that we 
 naturally take kindly to in this country, and we have certainly not been 
 hasty in trying it in New York state. So long ago as 1879 the Hepburn 
 Committee investigation pointed out some of the evils of rebates and 
 other railway practices as clearly as has ever been done, yet it was 1906 
 before the legislature took any effective action in regard to the matter ; 
 and our municipalities as well as the state have been very slow to exert 
 their powers. Of course opinions will continue to differ as to the advis- 
 ability of state interference, but in the judgment of those who read best 
 the trend of the public mind, the time has gone by when there can be 
 much dispute over the main contention ; the only question is how far the 
 state shall go. For the exact point where private action may best end, 
 and the community itself should take hold, has certainly not been dis- 
 covered yet ; nor is it likely ever to be settled, for social conditions shift 
 quite as rapidly as social experiments are made, and where can we draw 
 the dividing line ? 
 
 Some lawyers will tell us that there is no dividing line in this particular 
 matter, that there is no essential difference between a public-service cor- 
 poration and any other, and that it is simply a question of public policy 
 as to what business the state shall undertake to regulate and what it 
 shall leave without interference. Others will say that however hard it is 
 
THE STATE ADMINISTRATION 249 
 
 to draw a dividing line, yet there is certain territory which is quite ob- 
 viously on one side of the line, wherever the line may be, and certain 
 territory quite as obviously on the other. Also it seems to be true that a 
 certain business may stand on one side of the line in one generation and 
 occupy the other side in the next. For many centuries it was public 
 policy to subject the innkeeper to stringent regulation in the pubhc in- 
 terest ; but with the growth of modern conditions it has ceased to be 
 necessary, and a modem hotel company can hardly be classed as a public- 
 service corporation. On the other hand, when a virtual monopoly in the 
 supply of some necessity of life has come into existence, that business 
 certainly is drifting over the line into territory where some sort of public 
 regulation seems inevitable. 
 
 All the businesses which are placed under the jurisdiction and super- 
 vision' of the New York PubUc Service commissions are, more or less, 
 monopolies depending upon some form of public grant or franchise. 
 Not only are our railways great state highways, but the companies that 
 own them own also the means of traversing them and of transporting 
 goods along them. Our street railways occupy the public thoroughfares 
 under exclusive grants from municipalities. The gas companies must get 
 permission from the city to dig up the public streets, and electric light 
 companies to erect their poles. Express, freight-line, and sleeping-car 
 companies only supplement the work of the railway. Not one would be 
 able to exist except for the public grant which is its foundation ; it is 
 therefore to the state that we must now turn for relief against the power 
 of the monopolies which have been allowed to rise upon that foundation. 
 
 When we come to a consideration of these franchises "the first thing 
 we find is, that, although in most cases the corporation had paid nothing 
 to the state or municipality for the franchise, yet no sooner has the fran- 
 chise been secured than it has been capitalized, often at an enormously 
 inflated valuation, and the resulting securities have been marketed in the 
 same way as those for which good solid cash has been paid. 
 
 Now, as a matter of fact, the value of a franchise is very fluctuating, 
 — a thing impossible to fix. The franchise of a nonexistent railroad is 
 of no inherent value ; on the other hand the value of the same franchise, 
 after fifty years' development of the road and growth of the communities 
 about it, may almost exceed imagination ; but since the state has claimed 
 the right to regulate rates, thus demolishing the theory that the railroad 
 conducts a private business, the value of every railroad franchise in the 
 state as a basis for an issue of securities is very materially diminished if 
 not obliterated. 
 
 If the franchise is something of value, the state should certainly not 
 give it away ; if it is of no value, then the corporation should not capi- 
 talize it ; but to secure it for nothing and then capitalize it, is " special 
 privilege " with a vengeance. The worst of the matter, however, is this, 
 that when the corporation proceeded to capitalize the franchise, upon 
 
250 AMERICAN STATE GOVERNMENT 
 
 the theory that it represented an asset upon which returns in the shape 
 of dividends should be paid, — the same as if it were money invested in 
 the enterprise, — the corporation was on the one hand receiving from the 
 state a gift of more or less value, and on the other forcing the state to 
 pay perpetual tribute upon the very thing it had given away — to the tune 
 of many times its actual value when the promoters were clever enough 
 to " discount the future " in their issues of stock. When you come to 
 dissect the matter and look it over coolly, it does seem as if this were on 
 the whole the most skillful confidence game which has ever been worked 
 on the public ; for the experienced financier, after capitalizing his fran- 
 chise, could unload the watered securities on the " widow and orphan," 
 and place the resulting cash in " gilt-edged " investments far removed 
 from inquisitive legislators and public-service commissions. 
 
 This is not saying — and let this point be made quite clear — that 
 there have not been many noble and high-minded men connected with 
 our public-service corporations ; that the development of public utilities 
 has not been of immense value to the community ; nor that they have 
 not often been conducted with the highest motives of philanthropic enter- 
 prise. But it is an assertion that the theory underlying the treatment of 
 the franchise was wrong and the system built upon it was bad, and that 
 the time has now come to open our eyes and look facts squarely in the 
 face. When we do so, we find that the right of the legislature of state or 
 city to give away a franchise in perpetuity cannot be successfully defended. 
 
 The legislature is the agent of the existing population, and its members, 
 as our accredited representatives, may barter away present rights, yours 
 or mine of to-day ; but they may not dispose of rights which belong to 
 our children and our children's children as much as to us, for the future 
 is not ours to give. They may allow private development and manage- 
 ment of public utilities for the sake of immediate public advantage, and 
 any such investment should be protected from unjust and unreasonable 
 competition, and should be held sacred for the investors ; but the fran- 
 chise itself is something which may not be given away, because it is not 
 within the province of the legislature to give away that which does not 
 belong to the existing community. A franchise granted by the legislature 
 of fifty years ago, for instance, belonged then to us of to-day quite as 
 much, if not more, than to our grandfathers, who handed it over to 
 some railroad in perpetuity ; it belongs to us now, as it will belong to our 
 grandchildren in their turn. The action of the legislature of two generations 
 ago in giving away our birthright is not morally a binding contract upon 
 us to-day, when it comes in conflict with present or future public interest ; 
 and the vested rights of the private inheritors of that franchise will not 
 finally stand when they come in conflict with the vested rights of the state. 
 
 Some people will tell you that the state is nothing more than the sum 
 of its inhabitants ; and that when you speak of the state as more than 
 that, you are using the term of a sentimental abstraction which does not 
 
THE STATE ADMINISTRATION 251 
 
 exist. Yet any man who can feel the thrill of patriotism knows that this 
 is not so. The state is the future ; it is the sum of its inhabitants not only 
 of to-day, but of to-morrow, the day after, and so on to the end of time. 
 And it is exactly the rights of the state of the future that have been 
 forgotten in our dealing with the public-service corporations. 
 
 There are, therefore, three parties in interest : the public, the commu- 
 nity of to-day, demanding fair treatment for every individual, large man- 
 ufacturer or small, rich and poor alike ; the public-service corporation, 
 demanding just and liberal treatment for those who are willing to invest 
 their capital in developing a public utility ; and the state, standing for the 
 whole community in its continuing capacity from generation to genera- 
 tion, — from now into the far distant future, — and demanding that these 
 great questions shall not be considered as of to-day, but that the decision 
 in all matters of public policy shall take the road which leads often away 
 from immediate results toward the best results for the time to come. 
 And of these interests the last is by no means the least important. " Con- 
 science and the present constitution of things are not corresponding terms. 
 It is conscience and the issue of things which go together." ^ It is because 
 of its endeavor to restore a proper balance to these three interests that 
 the Public Service Commissions Law marks so great a step in advance. 
 
 A few words in closing as to the practical operation of the law in New 
 York. The commissions have been in existence only nine months — and 
 that is a short time for a revolution to be consummated ; but already 
 experience has shown the immense value of the law. Merchants and 
 manufacturers have a powerful tribunal before which they can plead for 
 justice and efficiency; any individual with a well-grounded complaint 
 against a corporation can have it brought to its attention by the com- 
 mission far more forcibly than he himself can bring it; the issues of 
 stocks and bonds by these corporations are for the first time subjected to 
 rigid scrutiny, and it is safe to say that very little water will leak into such 
 securities in the future ; — in every way the rights and interests of the 
 public are being safeguarded as never before, and the public is becoming 
 aware of the fact. For the first time in their history these great corpo- 
 rations realize fully that there is a higher power above them, — a power 
 to which the public can now appeal ; they have been shorn of their abil- 
 ity to dispense life or death to businesses, to tyrannize over individuals, 
 or to ignore the interests of the public, for above them is the state, 
 demanding justice and fair treatment for every one of its citizens, and 
 enabled to enforce its demands. 
 
 It is only fair to add that on their part the corporations have shown 
 both good sense and good temper in accepting the law graciously, and 
 doing all in their power thus far in carrying out its provisions and the 
 orders and requests of the commission. Many a complaint never reaches 
 the commission ; the complaint is remedied by the corporation as soon as 
 1 Davison ; quoted by Matthew Arnold in Literature and Dogma. 
 
^52 
 
 AMERICAN STATE GOVERNMENT 
 
 it is made known. In truth, the wiser among the corporation managers 
 see plainl}' that the law will be their best defense against dangerous legis- 
 lation ; that the commission will stand as a barrier against injustice to the 
 corporations on the one hand, while it affords relief to the public against 
 injustice on the other. 
 
 It will lead to a safer and better condition of things all around : the 
 public will see that its rights are safeguarded, and demagogic appeals will 
 lose their force and effectiveness ; the corporations will be protected 
 against destructive competition and blackmail, and assured of a fair return 
 on honest investment ; hence should result a return of public confidence 
 in the securities of the corporations, — which ought in turn to be as good 
 and conservative investments as any municipal bonds. There will be two 
 classes of people, but I think only two, who will suffer from the law, — 
 those among the capitalists and promoters who are too greedy to be con- 
 tent with their fair share, who wish to reap where they have not sown ; and 
 the demagogues and agitators who will feel themselves cheated out of 
 their best weapons of attack. But if both these classes could be put per- 
 manently out of business the world would be duly grateful. 
 
 That all these desirable things will come at once no one will expect ; 
 that they are coming, and that the Public Service Commissions Law will 
 justify the expectations of its promoter, many of us fervently hope and 
 believe. That act is upon the statute book not merely because a governor 
 of New York wished to alter the law, but because public opinion justly 
 demanded a change in existing conditions. The old footing of the pub- 
 lic-service corporations was intolerable ; something new had to be substi- 
 tuted for the false and outworn theory of competition in order to protect 
 the public and the state. Governor Hughes recognized the voice of the 
 people demanding reform, and the result was an effective piece of legis- 
 lation which fairly entitles its author to be considered as that rather rare 
 personality in American politics, — a constructive statesman. 
 
 For my own part, and speaking as a Democrat, I welcome a law which 
 seems to me not only essentially Democratic in principle, but in line with 
 frequent declarations of the party policy — an effort to root out one of 
 the most insidious forms of special privilege, and to regulate, in the name 
 of the people, these great monopolies which have been for many years 
 disturbing factors in our social and political development. 
 
 RAILWAY REGULATION! 
 
 By Governor La Follette 
 
 With respect to the scope of a law creating a State Railway Com- 
 mission, I believe that the most careful and thorough investigation upon 
 your part will lead to the conviction that the commission should be invested 
 
 1 Message of 1905. 
 
THE STATE ADMINISTRATION 
 
 253 
 
 with power to enforce an adequate and efficient service, always taking 
 into consideration the circumstances and conditions with respect to the 
 town, city, or section concerned. It is as necessary that the efficiency of 
 the service should be under the control of the state as it is that there 
 should be government regulation of transportation in any respect. The 
 character of the service is quite as important to the business interests 
 and to the people of every community as is the cost of the service. 
 
 With respect to the regulation of rates, I have no doubt that you will 
 wisely determine to clothe the commission with full power to establish a 
 rate. A sufficient objection to limiting the power of the commission to 
 fixing maximum rates is that the railway company can still make unjust 
 discriminations between shippers and communities, by making them 
 special rates below the maximum rate. The exercise of the power to 
 make an absolute rate will furthermore insure stability in rates, which is 
 an important factor in the conduct of every business. The orders of the 
 commission that establishes a rate should at once carry the rate into effect, 
 to continue until such a time as the commission shall otherwise order, or 
 the courts of appeal otherwise determine, if an appeal should be taken. 
 
 While the commission should doubtless be clothed with power to pro- 
 mulgate entire schedules of rates and classifications, it may well be ques- 
 tioned whether such action upon its part should be made mandatory. It 
 would appear to be the more prudent course to make it the duty of the 
 commission to establish rates with respect to any one product or ship- 
 ment, or to particular lines of merchandise, or to specified commodities, 
 as from time to time their importance may demand consideration. Thus, 
 without delaying action for an investigation covering the entire field of 
 state commerce, this discretionary power would enable the commission 
 to afford relief wherever it is most urgently required. Furthermore, under 
 such a course the commission would proceed in a conservative way, hav- 
 ing due regard to the pressing needs of shippers upon the one hand, and 
 fair consideration of the rights of transportation companies upon the 
 other. It is to be remembered that any rates established by any com- 
 mission cannot be maintained unless they are reasonably remunerative to 
 the railway companies. To the end, therefore, that its work shall have a 
 substantial value to the state, it is necessary that the commission proceed 
 with that caution which will insure the maintenance by the courts of 
 every rate established, should the action of the commission with respect 
 to such rates be appealed by the corporations. 
 
 Action only on Complaint destroys Efficacy of Law 
 
 While it should be made the duty of the commission to investigate all 
 complaints, I am strongly of the opinion that their action should not be 
 made to depend upon the filing of such complaint. With the best protec- 
 tion which the commission can afford to shippers, when such commission 
 
2 54 AMERICAN STATE GOVERNMENT 
 
 is fully clothed with authority to regulate the transportation service, it 
 would be long before a shipper would feel warranted in subjecting himself 
 to the annoyances that he might suffer because of his action in making 
 complaint against a railway company with which he is obliged to transact 
 business. Besides, with the burdensome rate conditions which are shown 
 to prevail in Wisconsin, it would be manifestly unjust to require the public 
 to await the action of the commission upon individual complaints. Such 
 a course would amount practically to a denial of all the benefits of this 
 legislation to small shippers whose freight rates are relatively much more 
 burdensome to them than are the larger freight bills to those more 
 extensively engaged in shipping. The amounts involved in the case 
 of small shippers would be too small to warrant the expense incident 
 to making a formal complaint and appearance before the commission in 
 order to secure redress. 
 
 But this is not all. The great body of the people of Wisconsin who 
 bear in the aggregate the principal burden of the freight rates, surely, 
 could not appear before the commission to make complaint. Neither 
 could they state their complaint or allege the measure of wrong imposed 
 upon them by the transportation companies. They have no dealing 
 directly with the railroads, and do not pay freights to the railway com- 
 panies at all. They are, nevertheless, the ones who finally pay the largest 
 proportion of all the transportation charges which go to swell the 
 enormous revenues of the railway companies in Wisconsin. This they 
 pay as a part of the price when they purchase the coal, the lumber, and 
 merchandise which they must buy. True, the coal dealer and the lumber 
 dealer and the merchant pay the freight in the first instance to the rail- 
 road, but they in turn charge the freight to the customers to whom they 
 sell the coal, the lumber, the dry goods, the provisions, and other supplies. 
 How shall the consumer obtain any relief against exorbitant transpor- 
 tation charges if the Railway Commission can only act upon the complaint 
 of the individual, who, in reality, does not bear the final burden ? 
 
 It must, therefore, be at once apparent that limiting the action of the 
 commission to such cases only as are made the subject for formal com- 
 plaint, would go far to curtail the value of the law, and I would recom- 
 mend that the commission be authorized to investigate upon its own 
 motion, with respect to any matter or anything concerning the efficiency 
 of the service, the reasonableness of the rate, and the impartiality of the 
 service as between different individuals and different places. 
 
 It is, of course, the "province of the legislature to determine as to the 
 various provisions and details of the bill ; but I deem it both a privilege 
 and a duty to make such suggestions as study and reflection upon this 
 subject lead me to believe would in any manner aid in the preparation 
 and enactment of legislation upon this very important subject. 
 
 The commission should have authority to require the railway com- 
 panies, upon reasonable notice, to furnish all the cars requisite to 
 
THE STATE ADMINISTRATION 255 
 
 accommodate shippers. Many people engaged in various lines of busi- 
 ness in Wisconsin experience great hardship because they have no appeal 
 except to the railroads, whose convenience they have to await in the 
 matter of supplying cars. This is often a serious loss to the shipper, 
 particularly upon certain perishable classes of shipments, and in all 
 cases it embarrasses the shipper's business with respect to markets 
 and prices. 
 
 The railroads usually provide scales at terminal and division points 
 only, so that the matter of weights is entirely within their own hands ; as 
 a result shippers are continually driven to make claims for overcharges 
 in weight. There are to-day large numbers of shippers on every line in 
 Wisconsin who have claims of this nature pending with the railway com- 
 panies, to the amount of many thousands of dollars. These claims drag 
 along, and require the most persistent effort on the part of shippers, in 
 order to make even a partial recovery. The commission should be placed 
 in a position to require all reasonable facilities for ascertaining and record- 
 ing the weight of loaded cars, insuring ample protection to the interests 
 of all shippers. They should also make reasonable rules and regulations 
 for the prompt adjustment of all claims. 
 
 The commission should be authorized to require reasonably adequate 
 train service on all lines, designating, wherever the action of the railway 
 company makes it necessary, the minimum number of trains that shall run 
 at convenient hours for the traveling public to reach centers of trade and 
 reasonable connection with the service of other lines ; to provide proper 
 station accommodations and telegraph service ; to require the use of 
 automatic couplers, air brakes, and other devices for the protection of 
 employees, with penalties for nonuse of the same ; to make and enforce 
 reasonable regulations respecting the protection of private property, and 
 the proper drainage of lands affected by the construction of roads ; and 
 also to make regulations respecting crossings, interlocking switches, 
 and other details of railroad equipment and operation. 
 
 Publicity 
 
 Secrecy is the source of many of the most serious evils pertaining to 
 railway management. If the commission is clothed with power to enforce 
 entire publicity, it wiU rarely be necessary to employ its authority to pros- 
 ecute. Publicity should extend to complete itemized statements of all 
 matters connected with the financial accounts of the railway companies' 
 business. The maintenance of a particular rate, established by the com- 
 mission, must depend upon the commission's knowledge of earnings and 
 the expenses of the road. A percentage of railway profits is invariably 
 concealed by the accounting system employed in all railroad offices. It 
 follows that the authority of the commission over railway accounts should 
 also extend to the enforcement of uniformity in keeping the same. The 
 
256 .\MERICAN STATE GOVERNMENT 
 
 importance of this matter has been repeatedly urged upon the attention 
 of Congress by the Interstate Commerce Commission and through the 
 action of the annual conventions of State Railway commissions. 
 
 Publicity should extend to all matters which may affect the public in 
 any way, and the railway companies should be required to file with 
 the commission copies of all contracts affecting public interests, made 
 by railroads with each other, with shippers and passengers, with car 
 and equipment companies, with express and other transportation com- 
 panies, with land companies, and with every company doing business 
 or shipping goods into or from this state, or in any way affecting 
 said shipments. 
 
 The commission should likewise be authorized to require a list of all 
 reduced passenger rates, passes, or mileage books issued free or for any 
 consideration other than the full value of the same in money, which are, 
 or may be used within the state, whether to employees or others, together 
 with the names of the recipients and the reasons for issuing such reduced 
 rates, passes, or mileage books. The commission should be empowered 
 to require the usual traffic statistics, and full and accurate statistics of 
 wages and of hours of continuous service of employees, including those 
 of sleeping-car and express companies, telegraph operators, and all other 
 persons employed by the railway companies, or by companies engaged 
 in transportation in connection therewith. , 
 
 Provision should likewise be made for the publication of reports by 
 the commissioners embracing all of the foregoing information for the 
 benefit of the general public. 
 
 Protection against Overcapitalization 
 
 The wrongs which may be inflicted upon the public through over- 
 capitalization are so obvious that it seems scarcely necessary to discuss 
 the importance of incorporating in this law a strong provision making it 
 the duty of the commission to ascertain the value of all steam and electric 
 railways within the state, and making it unlawful for any steam or elec- 
 tric railway company located in Wisconsin to issue any bonds or other 
 evidences of debt, or to issue stocks and shares, or to execute leases and 
 mortgages, without first obtaining an order from the commission author- 
 izing such action. Could this have been done earlier in the history of 
 railway building in Wisconsin, the people would not now be taxed so 
 heavily on all transportation in order to pay interest and dividends upon 
 an overcapitalization of all our roads. It is certainly wise to provide, with 
 all possible speed, against any further overcapitalization of either steam 
 or electric railroads already within the state, or any overcapitalization of 
 such other lines as may from time to time be constructed. The history 
 of railroad lawmaking affords but few examples of more vicious legisla- 
 tion than Chapter 198 of the laws of Wisconsin of 1899, by the provisions 
 
THE STATE ADMINISTRATION 257 
 
 of which any corporation in the state can purchase the property and 
 rights of another by mortgage, bankruptcy, or judicial sale, can reorganize 
 the purchased corporation, and put in its property at any price, or as 
 representing any number of shares it may see fit, without reference to 
 the value of the property or its cost, thus affording a great opportunity 
 and inducement for a profitable and iniquitous business in stock watering. 
 Provided that it shall not be a competing or parallel railroad, and that it 
 shall intersect with some line of the purchasing railroad, or such as it is 
 authorized to build, the law authorizes any railroad organized under the 
 laws of this state to issue the capital stock and bonds of its own com- 
 pany for any amount it may see fit, without reference to the purchase 
 price or the value, thus giving an unlimited power to water stock and 
 inflate capital, based upon nothing of a substantial character or value. 
 
 Commission vested with Authority to make Commodity Rate 
 
 Large shippers in Wisconsin have heretofore professed to entertain 
 great fear that such legislation as is here proposed would interfere with 
 rates upon commodities important in their industrial enterprises. There 
 is not the slightest ground for such apprehension on their part. Nothing 
 can come within the scope of legislation which the state has the power to 
 pass, except as it pertains to state commerce. That portion of the busi- 
 ness conducted by large shippers in moving their products to distant 
 markets constitutes interstate commerce. With such shipments, or with 
 those from other states by rail into this state, a state commission cannot 
 interfere. A state commission would be able to control rates with respect 
 to such of these commodities or shipments as are made within the state. 
 Upon principle and authority such commission can secure for a manu- 
 facturer as a right, not as a favor, from the railroad, as low a commodity 
 rate as the railroad can make of its own motion. The commission should 
 be vested with authority not only to make commodity rates, but to vary 
 the rate as the requirements of any situation demand, assigning upon 
 their records their reasons for any special exception made. The com- 
 mission would then be able to furnish every possible aid and support 
 for the maintenance and further development of such industries. The 
 state can lawfully authorize a commission to make rates as low as it is 
 possible for the railway company to furnish them to shippers. If a rail- 
 way company is extending any rate as a commodity rate to any manu- 
 facturing enterprise in Wisconsin to-day, it would scarcely be able to 
 interpose an objection to such rate when it was fixed by authority of a 
 state commission ; moreover, whenever it was established, or was evi- 
 dent that any such commodity rate could reasonably be made lower, a 
 state commission should at once lower the same. 
 
258 AMERICAN STATE GOVERNMENT 
 
 Railroad Rate-Making 
 
 A plausible objection which is always urged by the railroads against 
 any " interference " with their making rates is, that rate-making involves 
 a technical knowledge only possessed by those engaged in the trans- 
 portation business. I am free to admit that rate-making requires tech- 
 nical and expert knowledge. It must be based upon definite and detailed 
 information with respect to the value of railroad property, its cost of 
 maintenance and operation, and the expense attendant upon handling 
 and transporting the different classes and commodities of freight. 
 
 The railroads secure the services of men competent to discharge these 
 duties. The state may likewise secure the services of men equally com- 
 petent. In view of the great public interest, which goes vastly beyond 
 the amount of money paid to the railroad companies annually for trans- 
 portation, great as that sum is in the aggregate, it is less important than 
 the administration of justice in securing an impartial service for all sec- 
 tions of the state, all lines of business, and each individual. 
 
 It is not possible to overstate the importance of the provisions of 
 this law ; but, however perfect the law, the state will fail utterly in 
 its undertaking unless the commission is composed of men of high 
 character and ability. Party preference or prejudices should, in no 
 way, influence the selection of members of this commission. They 
 should be men of the highest integrity, of marked industry, and they 
 should possess special fitness and power for the important service 
 demanded of them. 
 
 There is no other official in state government who will have such 
 enormous interests with which to deal as will the members of this com- 
 mission ; nowhere else will the pressure for special favor be so great; and 
 nowhere else will the effort to control the election of the officials, and 
 thereby to control their official action, be so persistent and resourceful. 
 Railway commissions in some states have fallen under the influence of 
 the very railroads they were intended to regulate, and in some cases 
 have only served to fasten more securely on the state the power of these 
 corporations. The " regulated have become the regulators." This may 
 always be traced to that falling-off of public interest following the stren- 
 uous efforts required to secure the enactment of such a law. The rail- 
 roads count upon this, and whenever public attention relaxes with respect 
 to these important officials, the corporations, ever on the alert, are in- 
 genuous in having new issues brought forward to obscure and confuse 
 public attention, and by means of their m.anipulation and unlimited 
 resources they succeed in getting men of their own choice upon the 
 commission. This is no reason for abandoning the effort to abolish exist- 
 ing railway discriminations and abuses, but it is a reason for giving most 
 serious consideration to the method of selecting the members of the 
 commission. Weakness at this point will, in the end, be disastrous, for 
 
THE STATE ADMINISTRATION 259 
 
 it will be at this point that the opposition will concentrate and direct its 
 well-trained forces of attack. 
 
 It must always be borne in mind that the contest between the state 
 and corporate power is a lasting one. Under a republican form of gov- 
 ernment the people must struggle to secure legislation, guard it jealously 
 when secured, and be ever vigilant in the selection of their representa- 
 tives for the administration of the law. It may be safely assumed that 
 the railway corporations will continue their opposition to this legislation. 
 Any effort to limit their control of commerce will be resisted in this state 
 as it has been resisted in other states and in the national Congress. The 
 history of every struggle to place upon the statute books like legislation 
 has been the same. So long as it can be defeated they employ all of 
 their power to that end. When the public interest becomes so awakened 
 and it is clearly manifest that such legislation will be enacted, they then 
 put forth all of their skill to incorporate provisions in the statute which 
 will weaken or destroy its efficiency. For ten years, session after session, 
 railway corporations prevented the adoption of the Interstate Commerce 
 Law in Congress. When in 1887 they saw it must pass, they were ready 
 with devices to cripple it in operation, render weak and ambiguous its 
 terms, by preparing the way long in advance for court decisions divest- 
 ing the commission of all control over interstate transportation. With 
 respect to this, as well as to all other measures in which the railway cor- 
 porations are in any manner interested, they have a right to be heard by 
 counsel and to have their arguments and objections carefully considered. 
 But it must always be remembered that their attitude throughout is one 
 of hostility to this legislation, and that if their relation to the law after it 
 is enacted is to be judged by their attitude toward the Interstate Com- 
 merce Law, it will be one of continued effort to destroy its efficiency 
 and nullify its provisions. 
 
 Whatever differences of opinion may be found among supporters of a 
 measure to regulate railway services and rates, as to whether the commis- 
 sion should be elective or appointive, you will, I apprehend, find no 
 division among the opponents of such legislation. One and all they are 
 quite certain to be unitedly in favor of an elective commission. While 
 they will oppose the creation of any commission whatever so long as 
 such opposition can be successfully made, and while they will oppose 
 every provision to strengthen the hands of such commission, they will 
 join with great unanimity for the election of the commission and in favor 
 of the shortest possible tenure of office. I have no doubt that with the 
 general public interest in this question which prevails at this time in Wis- 
 consin, there would be little difficulty in securing in any general election, 
 where there would be a full expression of the will of the people, a com- 
 mission favorable to a thoroughgoing administration of the law, and I 
 sincerely IJelieve that a commission so chosen, if continued in office, 
 would ultimately become well equipped to discharge its duties. But the 
 
26o AMERICAN STATE GOVERNMENT 
 
 test of the elective system of choosing commissions comes later, more 
 especially if such commission is fairly efficient in the discharge of the 
 duties devolving upon it. 
 
 It is after rates have been in a measure satisfactorily adjusted, and 
 the people in a measure satisfied, that their watchfulness abates. Their 
 grievances are no longer so acute, their interests may be diverted to other 
 questions of public concern, and, taken off guard by the tireless and 
 vigilant allies of the railroads, they awaken finally to a realization that 
 the personnel of the commission has been changed, that rates have 
 ceased to tend downward, as they steadily should, with the increase of 
 the tonnage and the improvement of the service, and that, on the con- 
 trary, rates have begun to advance and the old abuses again to assert 
 themselves. 
 
 In the contest which would follow to restore again the commission 
 to its original character and efficiency, difficulties would be encountered 
 which are always possible in choosing between a large number of can- 
 didates where each attracts some following on personal consideration, 
 independent of his qualifications, technical knowledge, and special merit. 
 The ability of corporate wealth and power to control in the selection of 
 a commission could scarcely be doubted under the caucus and conven- 
 tion systems. The adoption of such a primary law as we now have in 
 Wisconsin would greatly strengthen the confidence of the people suc- 
 cessfully to meet the corporations in such a contest. 
 
 The encroachment of the great railway systems, allied with indus- 
 trial trusts and combinations, upon democracy, is a constant menace to 
 whatever degree we may perfect the laws providing for the machinery 
 of popular government. Every additional temptation for these great 
 organizations as a system to take part in the elections, should be re- 
 moved. Surely it is the part of wisdom to add none unnecessarily. 
 
 Upon this point I beg to invite your attention to the views of Pro- 
 fessor Frank H. Di.xon, head of department of economics, Dartmouth 
 College, in his able work on " State Railroad Control," based upon a 
 critical study of the history and operation of the Iowa law adopted 
 in 1888: 
 
 This law making commissioners elective was passed in the spring of 1888. 
 Before that time the commissioners had been appointed by the governor, and 
 their selection had depended in no degree upon their political- affiliations. 
 The opponents of the new order predicted that the change would furnish the 
 railroads the opportunity which they sought of going into politics, and so it 
 unfortunately proved. It has resulted in more than one campaign being fought 
 out by the railroad and antirailroad forces, regardless of the connection of 
 the candidates with one or the other of the great national parties. The com- 
 missioner who, by his public acts, seemed to favor the Granger sentiment as 
 opposed to the railroads would be obliged, if a candidate for reelection, to 
 face the combined forces of the opposition, ably directed from railroad head- 
 quarters. At one election handbills and telegrams were sent out along the 
 
THE STATE ADMINISTRATION 26 1 
 
 lines of roads directing employees to vote for a certain man who was believed 
 to be friendly to railroad interests. The grain men and large shippers were 
 notified to join the movement. The opposition was strengthened through the 
 multiplication of railroad employees' clubs, formed for no other purpose than 
 to influence railroad legislation. 
 
 Experience has proven conclusively that the election of commissioners by 
 popular vote is dangerous in furnishing inducement for the powerful corpora- 
 tions to make themselves felt politically. An appointment of commissioners 
 by the governor, with the consent of the senate, or the executive council, 
 which was the method in vogue at first, should be restored. When this has 
 been done, a great step will have been taken toward promoting a feeling of 
 harmony between shippers and carriers, — a spirit indispensable to the satis- 
 factory solution of the railroad question. 
 
 There is another phase of this branch of the subject which is worth 
 your careful consideration. The thought must ever be kept in mind, in 
 a law creating a railroad commission with power to regulate services 
 and rates, that the most important problem to be dealt with is the char- 
 acter and ability of the men who will be intrusted with this great 
 responsibility. The work of the commission in fixing rates will stand or 
 fall as it meets the severe tests applied in a review of its proceedings 
 by the courts. 
 
 Rates established, either upon the initiative of the commission or 
 upon complaints filed with it, cannot be sustained by the courts except 
 such rates are fair not only to the public, but just and reasonable to the 
 railroads as well. To determine this latter question requires a technical 
 and expert knowledge of traffic conditions and of the cost of railway 
 construction, maintenance, and transportation, in detail. In ■ order that 
 any rate established may be sustained, the commission must be able to 
 meet and answer the ablest traffic experts in the employ of the great 
 railway companies. They should be able to meet them, in so far as 
 possible, upon equal terms. Railway traffic managers are, because of 
 their ability and fitness, among the highest paid of all the railway 
 company officials. A contest between political parties, where partisan 
 feeling runs high and personal friendships and popular elements in 
 character count in the determination of the result, does not afford the 
 best conditions for judging of those purely technical qualifications and 
 of that mental endowment and experience which specially fits for work 
 of the character required of such a commission. 
 
 On the other hand, if the office is made appointive, there will be 
 every opportunity for the appointing power to make selection from the 
 widest possible field, having ample time for investigation of the can- 
 didate with respect to his antecedents, to the elements in his character, 
 and to his ability, experience, and expert knowledge. The selection 
 would be made full in the eye of the public, the appointing power 
 having responsibility for his acts and knowing with a certainty that 
 such appointment would not be confirmed unless it met the approving 
 
262 AMERICAN STATE GOVERNMENT 
 
 judgment of the legislature. For I believe that these positions upon the 
 commission are so profoundly important that if appointive, an additional 
 check might well be provided to those usually made, and I would recom- 
 mend that such appointment be subject to confirmation, not only by the 
 Senate but by the Assembly as well, requiring the concurrent action of 
 both branches of the legislature to confirm the same. 
 
 STATE CONSERVATION OF NATURAL RESOURCES^ 
 
 Justice Holmes delivered the opinion of the court. 
 
 This is an information alleging that the defendant (the plaintiff in error), 
 under a contract with the city of Bayonne in New Jersey, has laid mains 
 in that city for the purpose of carrying water to Staten Island in the 
 state of New York. By other contracts it is to get the water from the 
 Passaic River at Little Falls, where the East Jersey Water Company has j 
 a large plant by which the water is withdrawn. On May ii, 1905, the 
 state of New Jersey, reciting the need of preserving the fresh water of 
 the state for the health and prosperity of the citizens, enacted that, " It 
 shall be unlawful for any person or corporation to transport or carry, 
 through pipes, conduits, ditches, or canals, the waters of any fresh-water 
 lake, pond, brook, creek, river, or stream of this state into any other 
 state, for use therein." By a second section a proceeding like the pres- 
 ent was authorized in order to enforce the act. (Laws of 1905, Chapter 
 238, p. 461.) After the passage of this statute the defendant made a 
 contract with the city of New York to furnish a supply of water adequate 
 for the borough of Richmond, and of not less than three million gallons 
 a day. Thereupon this information was brought, praying that, pursuant 
 to the above act and otherwise, the defendant might be enjoined from 
 carrying the waters of the Passaic River out of the state. There are alle- 
 gations as to the amount of water and the probable future demand upon 
 which the parties are not wholly agreed, but the essential facts are not 
 denied. The defendant sets up that the statute, if applicable to it, is con- 
 trary to the Constitution of the United States, that it impairs the obliga- 
 tion of contracts, takes property without due process of law, interferes 
 with commerce between New Jersey and New York, denies the privileges 
 of citizens of New Jersey to citizens of other states, and denies to them 
 the equal protection of the laws. An injunction was issued by the chan- 
 cellor (70 N. J. Eq. 525), the decree was affirmed by the court of errors 
 and appeals (70 N. J. Eq. 695), and the case then was brought here. 
 
 The courts below assumed or decided, and we shall assume, that the 
 defendant represents the rights of a riparian proprietor, and, on the other 
 hand, that it represents no special chartered powers that give it greater 
 rights than those. On these assumptions the court of errors and appeals 
 
 1 From Hudson County Water Company vs. McCarter, Attorney-General of the state of 
 New Jersey, 209 U. S. 349. Decided April 6, 1908. Opinion of Justice Holmes. 
 
THE STATE ADMINISTRATION 263 
 
 pointed out that a riparian proprietor has no right to divert waters for 
 more than a reasonable distance from the body of the stream or for other 
 than the well-known ordinary uses, and that for any purpose anywhere 
 he is narrowly limited in amount. It went on to infer that his only right 
 in the body of the stream is to have the flow continue, and that there is 
 a residuum of public ownership in the state. It reenforced the state's 
 rights by the state's title to the bed of the stream where flowed by the 
 tide, and concluded from the foregoing and other considerations that, as 
 against the rights of riparian owners merely as such, the state was war- 
 ranted in prohibiting the acquisition of the title to water on a larger scale. 
 
 We will not say that the considerations that we have stated do not 
 warrant the conclusion reached ; and we shall not attempt to revise the 
 opinion of the local court upon the local law, if, for the purpose of deci- 
 sion, we accept the argument of the plaintiff in error that it is open to 
 revision when constitutional rights are set up. Neither shall we consider 
 whether such a statute as the one before us might not be upheld, even 
 if the lower riparian proprietors collectively were the absolute owners of 
 the stream, on the ground that it authorized a suit by the state in their 
 interest where it does not appear that they all have released their rights 
 (see Kansas vs. Colorado, 185 U.S. 125, 142). But we prefer to put 
 the authority which cannot be denied to the state upon a broader ground 
 than that which was emphasized below, since in our opinion it is inde- 
 pendent of the more or less attenuated residuum of title that the state 
 may be said to possess. 
 
 AH rights tend to declare themselves absolute to their logical extreme. 
 Yet all, in fact, are limited by the neighborhood of principles of policy 
 which are other than those on which the particular right is founded, and 
 which become strong enough to hold their own when a certain point is 
 reached. The limits set to property by other public interests present 
 themselves as a branch of what is called the police power of the state. 
 The boundary at which the conflicting interests balance cannot be deter- 
 mined by any general formula in advance, but points in the line, or help- 
 ing to establish it, are fixed by "decisions that this or that concrete case 
 falls on the nearer or farther side. For instance, the police power may 
 limit the height of buildings, in a city, without compensation. To that 
 extent it cuts down what otherwise would be the rights of property. But 
 if it should attempt to limit the height so far as to make an ordinary 
 building lot wholly useless, the rights of property would prevail over the 
 other public interest and the police power would fail. To set such a limit 
 would need compensation and the power of eminent domain. 
 
 It sometimes is difficult to fix boundary stones between the private 
 right of property and the police power when, as in the case at bar, we 
 know of few decisions that are very much in point. But it is recognized 
 that the state as quasi-sovereign and representative of the interests of the 
 public has a standing in court to protect the atmosphere, the water, and 
 
264 AMERICAN STATE GOVERNMENT 
 
 the forests within its territory, irrespective of the assent or dissent of 
 the private owners of the land most immediately concerned (Kansas 7's. 
 Colorado, 185X1.8.125,141,142; S. C, 206 U. S. 46, 99 ; Georgian. 
 Tennessee Copper Company, 206 U. S. 230, 238). What it may protect 
 by suit in this court from interference in the name of property outside of 
 the state's jurisdiction, one would think that it could protect by statute 
 from interference in the same name within. On this principle of public 
 interest and the police power, and not merely as the inheritor of a royal 
 prerogative, the state may make laws for the preservation of game, which 
 seems a stronger case (Geer vs. Connecticut, 161 U. S. 519, 534). 
 
 The problems of irrigation have no place here. Leaving them on one 
 side, it appears to us that few public interests are more obvious, indis- 
 putable, and independent of particular theory than the interest of the 
 public of a state to maintain the rivers that are wholly within it substan- 
 tially undiminished, except by such drafts upon them as the guardian of 
 the public welfare may permit for the purpose of turning them to a more 
 perfect use. This public interest is omnipresent wherever there is a state, 
 and grows more pressing as population grows. It is fundamental, and 
 we are of opinion that the private property of riparian proprietors can- 
 not be supposed to have deeper roots. Whether it be said that such an 
 interest justifies the cutting down by statute, without compensation, in 
 the exercise of the police power, of what otherwise would be private rights 
 of property, or that apart from statute those rights do not go to the height 
 of what the defendant seeks to do, the result is the same. But we agree 
 with the New Jersey courts, and think it quite beyond any rational view 
 of riparian rights that an agreement, of no matter what private owners, 
 could sanction the diversion of an important stream outside the bound- 
 aries of the state in which it flows. The private right to appropriate is 
 subject not only to the rights of lower owners, but to the initial limitation 
 that it may not substantially diminish one of the great foundations of 
 public welfare and health. 
 
 We are of opinion, further, that the constitutional power of the state 
 to insist that its natural advantages shall remain unimpaired by its citizens 
 is not dependent upon any nice estimate of the extent of present use, or 
 speculation as to future needs. The legal conception of the necessary is 
 apt to be confined to somewhat rudimentary wants, and there are bene- 
 fits from a great river that might escape a lawyer's view. But the state 
 is not required to submit even to an aesthetic analysis. Any analysis may 
 be inadequate. It finds itself in possession of what all admit to be a great 
 public good, and what it has it may keep and give no one a reason 
 for its will. 
 
 The defense under the fourteenth amendment is disposed of by what 
 we have said. That under Article I, Section 10, needs but a few words 
 more. One whose rights, such as they are, are subject to state restriction 
 cannot remove them from the power of the state by making a contract 
 
THE STATE ADMINISTRATION 265 
 
 about them. The contract will carry with it the infirmity of the subject 
 matter (Knoxville Water Company vs. Knoxville, 189 U. S. 434, 438 ; 
 Manigault vs. Springs,' 199 U. S. 473, 480). But the contract the execu- 
 tion of which is sought to be prevented here was illegal when it was made. 
 
 The other defenses also may receive short answers. A man cannot 
 acquire a right to property by his desire to use it in commerce among 
 the states ; neither can he enlarge his otherwise limited and qualified right 
 to the same end. The case is covered in this respect by Geer vs. Con- 
 necticut, 161 U. S. 519, and the same decision disposes of the argument 
 that the New Jersey law denies equal privileges to the citizens of New 
 York. It constantly is necessary to reconcile and to adjust different con- 
 stitutional principles, each of which would be entitled to possession of the 
 disputed ground but for the presence of the others, as we already have 
 said that it is necessary to reconcile and to adjust different principles of 
 the common law (see Asbell vs. Kansas, ante, p. 251). The right to 
 receive water from a river through pipes is subject to territorial limits by 
 nature, and those limits may be fixed by the state within which the river 
 flows, even if they are made to coincide with the state line. Within the 
 boundary citizens of New York are as free to purchase as citizens of 
 New Jersey. But this question does not concern the defendant, which is 
 a New Jersey corporation. There is nothing else that needs mention. 
 We are of opinion that the decision of the court of errors and appeals 
 was right. {Decree affirmed] 
 
 Mr. Justice McKenna dissents. 
 
 NATURAL RESOURCES AS STATE PROPERTY ^ 
 
 State of Maine 
 
 In Senate, March 27, 1907 
 
 Ordered: The justices of the supreme judicial court are hereby re- 
 quested to give to the Senate, according to the provisions of the consti- 
 tution in this behalf, their opinion on the following questions, to wit : 
 
 In order to promote the common welfare of the people of Maine by 
 preventing or diminishing injurious droughts and freshets, and by pro- 
 tecting, preserving, and maintaining the natural water supply of the 
 springs, streams, ponds, and lakes, and of the land, and by preventing 
 or diminishing injurious erosion of the land and the filling up of the 
 rivers, ponds, and lakes, and as an efficient means necessary to this end, 
 has the legislature power under the constitution : 
 
 I . By public general law to regulate or restrict the cutting or destruc- 
 tion of trees growing on wild or uncultivated land, by the owner 
 thereof, without compensation therefor to such owner ; 
 
 1 Questions submitted by the Senate of the state of Maine to the justices of the supreme 
 judicial court of Maine, March 27, 1907, with the answers of the justices thereon (103 
 Maine, 506). 
 
266 AMERICAN STATE GOVERNMENT 
 
 2. To prohibit, restrict, or regulate the wanton, wasteful, or unneces- 
 sary cutting or destruction of small trees growing on any wild or uncul- 
 tivated land, by the owner thereof, without compensation therefor to 
 such owner, in case such small trees are of equal or greater actual value 
 standing and remaining for their future growth than for immediate cut- 
 ting, and such trees are not intended or sought to be cut for the purpose 
 of clearing and improving such land for use or occupation in agriculture, 
 mining, quarrying, manufacturing, or business, or for pleasure purposes, 
 or for a building site ; or 
 
 3. In such manner to regulate or restrict the cutting or destruction 
 of trees growing on wild or uncultivated lands, by the owners thereof, 
 as to preserve or enhance the value of such lands and trees thereon 
 and protect and promote the interests of such owners and the common 
 welfare of the people ? 
 
 4. Is such regulation of the control, management, or use of private 
 property a taking thereof for public uses for which compensation must 
 be made ? 
 
 In Senate Chamber, March 27, 1907. 
 
 Read and passed. 
 
 F. G. Farrington, Secretary 
 
 To the Senate of Maine : 
 
 The undersigned justices, in obedience to the requirement of the 
 constitution, severally give the following as their advisory opinion upon 
 the questions of law submitted to the justices of the supreme judicial 
 court by the Senate order of March 27, 1907. 
 
 We find that the legislature has, by the constitution, " full power to 
 make and establish all reasonable laws and regulations for the defense 
 and benefit of the people of this state, not repugnant to this constitu- 
 tion nor that of the United States " (Const, of Maine, Article IV, Part 
 III, Section i). It is for the legislature to determine from time to time 
 the occasion and what laws and regulations are necessary or expedient 
 for the defense and benefit of the people ; and however inconvenienced, 
 restricted, or even damaged particular persons and corporations may 
 be, such general laws and regulations are to be held valid unless there 
 can be pointed out some provision in the state or United States Consti- 
 tution which clearly prohibits them. These we understand to be uni- 
 versally accepted principles of constitutional law. 
 
 As to the proposed laws and regulations named in the Senate order, 
 the only provision of the United States Constitution having any possible 
 application to such legislation by a state would seem to be that in the 
 fourteenth amendment. As to that provision, we think it sufficient to 
 quote the language of the United States Supreme Court in Barbier vs. 
 Connolly, 113 U. S. 27, where, speaking of the fourteenth amendment, 
 the court said : 
 
THE STATE ADMINISTRATION 267 
 
 But neither the amendment, broad and comprehensive as it is, nor any other 
 amendment, was designed to interfere with the power of a state, sometimes 
 termed its " police power," to prescribe regulations to promote the health, 
 peace, morals, education, and good order of its people, and to legislate so as 
 to increase the industries of the state, develop its resources, and add to its 
 wealth and prosperity. 
 
 It may be added that the proposed laws and regulations would not dis- 
 criminate between persons or corporations, but only between things and 
 situations, with a classification not merely arbitrary but based on real 
 differences in the nature, situation, and condition of things. 
 
 We think the only provisions in the state constitution that could be 
 reasonably invoked against the proposed laws and regulations are the 
 guaranteed right of " acquiring, possessing, and defending property," 
 and the provision that, " Private property shall not be taken for public 
 uses without just compensation" (Dec. of Rights, Sections i and 21). 
 If, however, the proposed legislation would not conflict with the latter 
 provision, it evidently would not with the former ; hence only the latter 
 one need be considered. 
 
 The question of what constitutes a " taking " of private property in 
 the constitutional sense of the term has been much considered and 
 variously decided. In the earlier cases and in the older states the pro- 
 vision has been construed strictly. In some states, in later cases, it has 
 been construed more widely, to include legislation formerly not con- 
 sidered within the provision. Still more recently, however, the tendency 
 seems to be back to the principles enunciated in the earlier cases. In 
 Massachusetts, one of the earliest states to adopt the constitutional pro- 
 vision, and in Maine, adopting the same provision in succession, the 
 courts have uniformly considered that it was to be construed strictly as 
 against the police power of the legislature. 
 
 Commonwealth vs. Tewksbury, 11 Met. 55, decided in 1846, was a 
 case where the legislature prohibited the owners from removing " any 
 stones, gravel, or sand " from their beaches in Chelsea as necessary for 
 the protection of Boston harbor. The court held that the statute did 
 not operate to " take " property within the meaning of the constitution, 
 but was " a just and legitimate exercise of the power of the legislature 
 to regulate and restrain such particular use of property as would be 
 inconsistent with or injurious to the rights of the public." Common- 
 wealth vs. Alger, 7 Cush. 53, decided in 185 1, was a case where the 
 defendant was prohibited by statute from erecting and maintaining a 
 wharf on his own land (flats) beyond certain fixed lines. The court 
 held that the defendant's title to the land (flats) was a fee simple, and 
 that but for the statute he would have had full right to erect and main- 
 tain wharves upon any part of it where they would not obstruct naviga- 
 tion. It was not claimed that the proposed wharf would obstruct 
 navigation, but rather admitted that it would not. The court further 
 
268 AMERICAN STATE GOVERNMENT 
 
 held, however, that the statute was within the legislative power and not 
 forbidden by any clause in the constitution. The question was consid- 
 ered at length in an opinion by Chief Justice Shaw, and the principle 
 stated as follows, viz. (p. 84) : 
 
 We think it a settled principle, growing out of the nature of well-ordered 
 civil society, that every holder of property, however absolute and unqualified 
 may be his tide, holds it under the implied liability that his use of it may be so 
 regulated that it shall not be injurious to the equal enjoyment of others having 
 an equal right to the enjoyment of their property, nor injurious to the rights 
 of the community. All property in this commonwealth, as well that in the 
 interior as that bordering on tidewaters, is derived directly or indirectly from 
 the government and held subject to those general regulations which are neces- 
 sary for the common good and general welfare. Rights of property, like all 
 other social and conventional rights, are subject to such reasonable limitations 
 in their enjoyment as shall prevent them from being injurious, and to such 
 reasonable restraints and regulations established by law as the legislature, 
 under the governing and controlling power vested in them by the constitution, 
 may think necessary and expedient. This is very different from right of 
 eminent domain, etc. 
 
 In the case Wadleigh vs. Oilman, 12 Maine, 403, decided in 1835, 
 only fifteen years after the adoption of our constitution, there was upon 
 the plaintiff's land a wooden building. A city ordinance was passed by 
 legislative authority prohibiting the erection of wooden buildings within 
 certain limits, which included the plaintiff's building. After the passage 
 of the ordinance the plaintiff moved his building to another place within 
 the same inhibited limits. The defendant as city marshal, acting under 
 the ordinance, entered upon the plaintiff's land and took the building 
 down. The court held the ordinance valid and the defendant protected, 
 and declared as follows (p. 405) : 
 
 Police regulations may forbid such a use and such modifications of private 
 property as would prove injurious to the citizens generally. This is one of 
 the benefits which men derive from associating in communities. It may some- 
 times occasion inconvenience to an individual, but he has compensation in 
 participating in the general advantage. Laws of this character are unquestion- 
 ably within the scope of the legislative power without impairing any constitu- 
 tional provision. It does not appropriate private property to public uses, but 
 merely regulates its enjoyment. 
 
 In Cushman vs. Smith, 34 Maine, 247, decided fifteen years later, 
 in an elaborate opinion by Chief Justice Shepley, the court said of the 
 constitutional provision in question (p. 258) : 
 
 The design appears to have been simply to declare that private property 
 shall not be changed to public property, nor transferred from the owners to 
 others for public use without just compensation. 
 
THE STATE ADMINISTRATION 269 
 
 In Jordan vs. Woodward, 40 Maine, 317, it was said by the court at 
 P- 324: 
 
 Strictly speaking, private property can only be said to have been taken for 
 public uses when it has been so appropriated that the public have certain and 
 well-defined rights to that use secured, as the right to use the public highway, 
 the turnpike, the ferry, the railroad, and the like. 
 
 The same doctrine was recognized in Preston vs. Drew, 33 Maine, 558 ; 
 State vs. Gurney, 37 Maine, 156 ; Boston & Maine R. R. Co. vs. County 
 Commissioners, 79 Maine, 386 ; and, as late as 1905, in State vs. Robb, 
 100 Maine, 180. 
 
 There are two reasons of great weight for applying this strict con- 
 struction of the constitutional provision to property in land : first, such 
 property is not the result of productive labor, but is derived solely from 
 the state itself, the original owner ; second, the amount of land being 
 incapable of increase, if the owners of large tracts can waste them at 
 will without state restriction, the state and its people may be helplessly 
 impoverished and one great purpose of government defeated. 
 
 Regarding the question submitted in the light of the doctrine above 
 stated (being that of Maine, and Massachusetts at least), we do not 
 think the proposed legislation would operate to " take " private property 
 within the inhibition of the constitution. While it might restrict the 
 owner of wild and uncultivated lands in his use of them, might delay 
 his taking some of the product, might defer his anticipated profits, and 
 even thereby might cause him some loss of profit, it would nevertheless 
 leave him his lands, their product and increase, untouched, and without 
 diminution of title, estate, or quantity. He would still have large measure 
 of control and large opportunity to realize values. He might suffer 
 delay but not deprivation. While the use might be restricted, it would 
 not be appropriated or " taken." 
 
 In the following cases restrictive statutes for the protection of prop- 
 erty and other material interests of the people were held to be within the 
 police power, and not a taking of private property, viz. : limiting the height 
 of buildings though the owner owns usque and caelum (Welch vs. Swasey, 
 193 Mass. 364); prohibiting the erection of wooden buildings within 
 specified limits (Wadleigh vs. Oilman, 12 Maine, 403), even when the 
 owner had begun to erect the building before the statute was enacted 
 (Salem z/j. Maynes, 123 Mass. 372); authorizing the destruction of 
 buildings without compensation to prevent the spread of a conflagra- 
 tion (Am. Print Works vs. Lawrence, 23 N. J. L. 9) ; prohibiting the 
 further use of buildings and appliances for brewing purposes, although 
 they had been erected and fitted for that purpose when brewing was a 
 lawful business (Mugler vs. Kansas City, 123 U. S. 623) ; prohibiting the 
 erection of fences on one's own land to gratify spite against others 
 
270 AAIERICAN STATE GOVERNMENT 
 
 (Karasek vs. Peier (Wash.), 50 L. R. A. 345 ; Smith vs. Morse, 148 
 Mass. 407) ; prohibiting the wasteful burning of natural gas by the 
 owner (Townsend i^s. State (Ind.), 37 L. R. A. 294); prohibiting the 
 use of artificial means, by the owners of gas wells, to increase the natural 
 flow of the gas from them (Manufacturer's Gas Co. vs. Indiana Natural 
 Gas Co., 155 Ind. 467 ; 50 L. R. A. 768); authorizing dams for the 
 purpose of reclaiming swamp lands where the effect was to oblige land- 
 owners to construct and maintain dikes to protect their lands from the 
 water raised (Manigault 7's. Springs, 199 U.S. 473); prohibiting one 
 from allowing weeds to grow on his own land (St. Louis vs. Gault, 179 
 Mo. 8 ; 63 L. R. A. 778) ; limiting the quantity of land any person or 
 family may cultivate within city limits (Summerville vs. Presley, 33 S. C. 
 56); prohibiting the flow of water from a private artesian well except 
 for certain specified beneficial purposes, as irrigation or domestic use 
 (Ex parte Elam (Cal.), 91 Pac. Rep. 8n). In Windsor vs. State (Md.), 
 64 At. Rep. 288, a statute restricted owners of private oyster beds in 
 taking oysters from them. It was held constitutional and not a taking 
 of private property. The court, quoting from Judge Story, said : " Prop- 
 erty of every kind is held subject to those regulations which are neces- 
 sary for the common good and general welfare. And the legislature has 
 the power to define the mode and manner in which one may use his 
 property." 
 
 The foregoing considerations lead us to the opinion at present that 
 the proposed legislation, for the purposes and with the limitations named 
 in the Senate order, would be within the legislative power and would 
 not operate as a taking of private property for which compensation must 
 be made. 
 
 Respectfully submitted, 
 March 10, 1908 LuciLius A. Emery 
 
 Wm. p. Whitehouse 
 Sewell C. Strout 
 Henry C. Peabody 
 Albert M. Spear 
 Leslie C. Cornish 
 
 Mr. Justice Woodard, one of the justices of the court when the 
 Senate order was passed, died before the foregoing opinion could be 
 prepared. His successor, Mr. Justice King, was not appointed for several 
 months after the passage of the Senate order, and holds that, therefore, 
 the Senate has not required any opinion from him. 
 
 LuciLius A. Emery 
 
 M>U. Mr. Justice Albert R. Savage declined to give an opinion upon 
 the question submitted, for the reason that he considered it not a 
 " solemn occasion " as required by Article VI, Section 3, of the 
 constitution of Maine. 
 
THE STATE ADMINISTRATION 27 1 
 
 CONSERVATION OF NATURAL RESOURCES IN THE 
 STATE OF NEW YORK^ 
 
 By Governor Charles E. Hughes 
 
 The wise and patriotic summons of the President to the consideration 
 of necessary steps for the conservation of our natural resources met with 
 a cordial response from the people of the state of New York. The Em- 
 pire State has been bountifully blessed by nature, and for a long period 
 there has been a steady growth in the appreciation of her priceless treas- 
 ures and of the importance of preserving them. Our vast stretches of 
 forests, feeding our streams and nourishing the agricultural and industrial 
 activities of our citizens, long remained the subject of selfish devastation 
 in reckless disregard of the just demands of future generations, and with- 
 out thought of the essential conditions of our continued prosperity. That 
 sagacious statesman, De Witt Clinton, foresaw the results of careless 
 waste of nature's bounty, and of the wanton sacrifice of our capital, 
 thoughtlessly supposed to be inexhaustible, in the satisfaction of the 
 demands of the moment. In addressing the legislature in 1822 he said: 
 
 Our forests are falling rapidly before the progress of settlement, and a scar- 
 city of wood for fuel, ship and house building, and other useful purposes, is 
 already felt in the increasing prices of that indispensable article. No system of 
 plantation for the production of trees, and no system of economy for their pres- 
 ervation, has been adopted, and probably none will be until severe privations 
 are experienced. 
 
 From time to time public-spirited citizens and farseeing statesmen 
 called attention to the need of a system of conservation, but it is only in 
 a recent period that measures of protection were adopted. Not only did 
 the state fail to acquire and hold from spoliation our forest tracts, but 
 lands which had passed into the control of the state were recklessly dis- 
 posed of at nominal prices, and are now, under a new policy, the subject 
 of reacquisition at greatly increased cost. It may be of value briefly to 
 review the experience of the state during the past twenty-five years. 
 Governor Cleveland in 1884 thus addressed the legislature upon this 
 subject, speaking of the practice which had prevailed : 
 
 The Hudson, Mohawk, and Black rivers are to a very large extent fed by 
 streams and lakes in the southern slopes of the Adirondack wilderness, and 
 the Black River may well be regarded as the principal feeder of the Erie Canal. 
 This statement renders the importance of protecting the water in the sources 
 of the rivers named, from serious diminution, distinctly apparent. The fact 
 that this can only be done by the preservation of the forests bordering on 
 the sources of water supply needs no demonstration, and was recognized by the 
 last legislature by the passage of an act prohibiting the further sale of our 
 northern wilderness lands. 
 
 1 From Eroceedings of the Conference of Governors, igo8. 
 
2 72 AMERICAN STATE GOVERNMENT 
 
 The immense volume of commerce which passes through the Erie Canal 
 and the Hudson River to the seaboard, and the low stage of water during the 
 summer in the last-named water\vay as well as the other rivers and streams of 
 the state, have attracted the attention of the public to the necessity of arresting 
 the further destruction of our northern forests. 
 
 This is certainly a very important matter, and should receive early and seri- 
 ous attention. We find ourselves facing the danger which now so excites the 
 people, because the interests of the state have not been cared for in the years 
 that are past, and because our forest-laden lands have been recklessly disposed 
 of at nominal prices, until, at this late day, we are awakened to the fact that 
 the control which the state should have always maintained over that part of 
 those lands which are important to the preservation of our streams has been 
 to a large extent surrendered. 
 
 The plan has been, it seems, quite generally adopted by the grantees from 
 the state to refuse to pay taxes assessed upon these lands after their purchase, 
 and to permit them to be sold for such taxes, the owner taking advantage of 
 the time between the levying of the taxes and the sale of the land to cut off 
 and sell such timber as he finds to his profit. In default of other bidders at 
 such tax sale, the state becomes the purchaser. Two years is allowed the 
 delinquent owner after the sale to redeem his land. 
 
 Sales of these lands are customarily made by the comptroller once in about 
 five years, and then they are sold for taxes that have remained due and unpaid 
 for a period not less than five years prior to the sale ; thus in 1881 forest lands 
 were sold for taxes levied thereon between the years 1871 and 1876. It will 
 be readily seen that this allows the grantees of these lands, who from the first 
 day of their ownership deliberately refused payment of all taxes, from seven 
 to twelve years within which to cut off and sell timber — thus realizing an 
 immense return from the amount originally paid for the land. 
 
 At that time a system of better control of the forest lands was sug- 
 gested, and the project of having the state purchase immense tracts of 
 these lands was opposed as involving an extravagant expenditure. In 
 1885 the attention of the legislature was again directed to the subject 
 by Governor Hill, who said : 
 
 The forestry problem has in late years became an important one, and through 
 natural causes and through the operations of some industries in the northern 
 counties of the state, it is becoming every year more important and pressing. 
 It is claimed by those who have given the subject attention that the preservation 
 of the forest growth, especially in those parts of the Adirondack region which are 
 unfit for profitable tillage, is a matter of serious concern to the material prosperity 
 of the entire state. Valuable water courses are largely dependent upon the preser- 
 vation of the forest trees now standing and a restoration of a new growth to tracts 
 which have been left waste ; and this protection of rivers and streams is doubtless 
 in this matter the chief consideration to the state at large. In addition, however, 
 the northern counties are threatened at no distant day with a serious diminu- 
 tion, or even loss, not only of the profitable and rapidly growing industry of 
 caring for the numerous persons who, from within and without the state, resort 
 to their lakes and woods for health or pleasure, but also of the lumbering 
 
THE STATE ADMINISTRATION 273 
 
 industry itself. It seems probable also that the owners of forest lands ought to 
 be afforded ample protection against trespassers who set fire to or cut or injure 
 trees upon such owners' lands. 
 
 The matter was made the subject of investigation by commission. 
 And it was in 1885 that a Forest Commission was established, and the 
 lands then owned, or which might thereafter be acquired by the state 
 within specified counties, were constituted a forest preserve. The state 
 already had considerable holdings of forest lands, principally through tax 
 defaults. It was further provided that lands composing the forest pre- 
 serve should "forever be kept as wild forest lands," and should "not be 
 sold or leased by any corporation, public or private." The Forest Com- 
 mission, three in number, were given the care and control of the preserve 
 and charged with the duty to protect the forests on the preserve and to 
 promote their further growth. 
 
 In 1887 provision was made for the disposition of separated smaU par- 
 cels in the preserve, or the timber thereon, under important restrictions. 
 
 In 1890 Governor Hill brought to the attention of the legislature the 
 advisability of a better definition of the limits within which lands were to 
 be retained by the state for forest purposes, and of appropriate legislation 
 with regard to the creation by the state of a forest park in the Adiron- 
 dacks. In a special message he said : 
 
 The portion of northern New York know as the " Adirondacks " has be- 
 come a great summer and winter resort for persons seeking pleasure or health, 
 not only from our own state but from other sections of the Union. It is rapidly 
 becoming a nation's pleasure ground and sanitarium. 
 
 The state now owns a large portion of this section, which has been placed 
 under the control of a Forest Commission. The present statutes seem to con- 
 template retaining all the lands that come to the state from tax sales as part of 
 a vast park, without reference to quality, quantity, or locality ; and many par- 
 cels thus reserved are small and are not connected with the main body of 
 state lands. _ 
 
 It seems to me that the limits within which lands are to be retained by the 
 state for this purpose should be settled and defined, and should include the 
 wilder portion of this region, covering the mountains and lakes at and around 
 the headwaters of the several rivers that rise in that locality, including the 
 Hudson River ; and that all the lands outside of these limits should be subject 
 to sale as other state lands are sold. If practicable, these lands could be ex- 
 changed for wild and forest lands within the limits prescribed. 
 
 Considerable complaint has been made that persons desiring to build sum- 
 mer camps or cottages upon lands belonging to the state have not been per- 
 mitted to do so. I can see no reason why, under suitable restrictions, small 
 parcels should not be leased at a moderate rental for such purposes. Such oc- 
 cupants would have an interest in preserving the forests in all their beauty, and 
 would be the best of fire wardens and foresters, while the wilderness would thus 
 afford a summer home to persons of moderate means, as well as to the wealthy. 
 
 The subject is worthy of the most careful consideration. It is represented 
 to me by those who are familiar with the situation and needs of that section, 
 
2 74 AMERICAN STATE GOVERNMENT 
 
 and in whose judgment I have confidence, that a state park, from fifty to seventy 
 miles square, can be obtained by the state in that region at comparatively tri- 
 fling expense, and that when obtained, if judiciously and sensibly managed, it 
 will prove of inestimable value and benefit to the whole country. 
 
 A personal inspection on my part last summer of a portion of the Adiron- 
 dack region confirms, in my judgment, the desirability of some appropriate 
 legislation upon this subject. 
 
 It is believed to be the true policy of the state to encourage rather than re- 
 tard visitation to this delightful region, and a broader and more enlightened 
 policy than that which has heretofore been followed should be pursued. Sev- 
 eral reasons are apparent why it is expedient that some independent commis- 
 sion should investigate this matter and originate a scheme for carrying out the 
 suggestions herein outlined, rather than the Forest Commission, whose powers 
 are already limited by statute and whose duties are confined to a mere preser- 
 vation of the forests. 
 
 I think the Adirondack forests, instead of being an expense and burden to 
 the state, are capable, under the liberal policy here suggested, of paying all the 
 expenses of their preservation, as well as of yielding a handsome revenue to 
 the state. 
 
 The action taken by the legislature upon this recommendation was to 
 authorize the Forest Commission to purchase lands, located within such 
 counties as included the forest preserve, as should be available for the 
 purpose of a state park, at a price not to exceed $1.50 per acre ; but the 
 act appropriated only $25,000 for the purpose. 
 
 In 1892 another act was passed establishing a state park to be known 
 as the Adirondack Park, which should be " forever reserved, maintained, 
 and cared for as ground open for the free use of all the people for their 
 health or pleasure, and as forest lands necessary to the preservation of 
 the headwaters of the chief rivers of the state and a future timber supply." 
 And the Forest Commission was authorized to purchase land in certain 
 counties mentioned. They were, however, given power to sell any portion 
 of the lands within specified counties the ownership of which, in their opin- 
 ion, was not needed to promote the purposes in view. The theory was, 
 apparently, that detached pieces could be sold, and that the proceeds would 
 be sufficient to buy the desired amount within the park limits, and no ad- 
 equate appropriation was made for independent acquisition on any suitable 
 scale. This policy, however, was not a successful one, and, as Governor 
 Flower in his annual message of 1893 said, "The results to-day, after 
 nearly seven years' effort to establish an Adirondack Park, are disappoint- 
 ing." He pointed out that while the existing methods would answer " the 
 temporary purpose of getting rid of lands useless for a forest preserve 
 and acquiring other lands needed, so far as the proceeds of sales would 
 permit, it would not do for a permanent and exclusive state policy." He 
 added that if it was the desire of the people that the state should abso- 
 lutely own two or three million acres of the forest preserve, the lands 
 should be acquired at once by right of eminent domain, and the operation 
 
THE STATE ADMINISTRATION 275 
 
 should be comprehensive ' and decisive, which would "be vastly more 
 economical in the long run than the present policy of purchase by driblets." 
 
 Governor Flower's specific recommendations (in connection with a 
 reorganization of the Forest Commission) were (i) that forest tracts 
 owned by individuals or private associations and used mainly for the 
 purpose of recreation should be secured as a part of the forest preserve 
 and guarded against denudation by a contract with the state providing for 
 exemption from taxation in consideration of forest protection and restric- 
 tions on the removal of timber ; and (2) that revenue should be secured 
 to the state '" by granting permission to fell trees above a certain diameter 
 on state lands and to remove the timber." 
 
 Legislation embodying these recommendations was enacted in 1893 
 and the results were thus stated by Governor Flower in his next annual 
 message : 
 
 These recommendations were promptly embodied in law, and the new For- 
 est Commission is now able to report that 225,000 acres of Adirondack land 
 have been offered to the state upon the terms of the proposed contract, and 
 that standing spruce timber exceeding twelve inches in diameter has been sold 
 on 1 7,468 acres of state land, from which it is expected that the first year's 
 cutting will yield to the state a revenue of $52,400. These prompt results are 
 exceedingly gratifying. It thus appears that the state forest preserve has been 
 increased by probably a million dollars' worth of lands without any direct ap- 
 propriation of public money, and that the first year of intelligent administration 
 under the new law has insured to the state an annual revenue largely in excess 
 of the entire cost of maintaining the Forestry Bureau. Every lover of the 
 Adirondacks and every friend of forest preservation will rejoice at these results, 
 but they will be particularly satisfactory to the taxpayers of the state. If from 
 so small a portion of the forest preserve so considerable a revenue is received 
 without injury to the forests, we can reasonably look forward to the time when 
 the forest preserve will not only be the great conservator of our water courses 
 and the restorer of health, but will contribute a large part of the money required 
 for the support of the state government. 
 
 All sales of stumpage were to the highest bidder. Applications for sales were 
 numerous and covered more timber than the Forest Commission thought wise 
 to sell at that time. They indicate that there will be no difficulty in obtaining 
 an annual revenue which shall not only render the department self-sustaining, 
 but will leave a large balance, which for the immediate future can be applied 
 annually on the purchase of land and the enlargement of the preserve. 
 
 The legislative policy, declared two years ago, of selling scattered and de- 
 tached tracts of state forest land lying outside the limits of the Adirondack 
 Park has been pursued during the year, but not many sales have been made, 
 owing to the depression in financial circles. 
 
 In 1894 a constitutional convention was held, and the desire of the 
 people to safeguard the forests and to place their preservation beyond 
 the reach of any form of attack was emphatically expressed. Public 
 opinion assumed definite and authoritative statement in the amendment to 
 the constitution which was recommended by the convention and adopted 
 
276 AMERICAN STATE GOVERNMENT 
 
 by the people. They did not propose that any devastation of the state 
 lands should be permitted under any pretext, and they put into the con- 
 stitution the emphatic words of the statute of 1885, which as a mere 
 legislative enactment had been subject to legislative alteration. The 
 amendment was as follows (Article VII, Section 7) : 
 
 The lands of the state now owned or hereafter acquired, constituting the 
 forest preserve as now fixed by law, shall be forever kept as wild forest lands. 
 They shall not be leased, sold, or exchanged, or be taken by any corporation, 
 public or private, nor shall the timber thereon be sold, removed, or destroyed. 
 
 The policy of forest preservation was thus imbedded in the funda- 
 mental law. 
 
 The special committee on State Forest Preservation of the Constitu- 
 tional Convention reported that they were of the opinion that " for the 
 perfect protection and preservation of the state lands, other lands con- 
 tiguous thereto should, as soon as possible, be purchased or otherwise 
 acquired," but they felt that any action to that end was more properly 
 within the province of the legislature than of the convention. Governor 
 Morton in his annual message of 1896 described the constitutional 
 policy as one which was "' giving satisfaction to the people," and pointed 
 out that "" unless these lands are acquired within a reasonable time, they 
 can only be obtained at higher cost many years hence." Adequate ap- 
 propriations for extensive purchases, however, were not made until 
 1897. Governor Black in his annual message of that year thus stated 
 the situation : 
 
 Private individuals have taken advantage of the state's neglect, until of the 
 entire Adirondack region, consisting of more than three and a half million 
 acres, the state owns eight hundred and forty-one thousand, less than a quar- 
 ter; and of the proposed Adirondack Park of two million eight hundred 
 thousand acres, it owns even a smaller percentage, about six hundred and 
 sixty-one thousand acres. Of this proposed park more than eight hundred 
 and eighty thousand acres are held as private preserves and more than a 
 million and a quarter acres by lumbermen and others, so that of the proposed 
 total area of two million eight hundred thousand acres more than two millions 
 are owned by private individuals. More than a million and a quarter of the 
 two millions so owned are now subject to fire and ax, and the devastation 
 wrought yearly is appalling and disgraceful. More than four hundred and 
 fifty million feet of wood and timber are cut, and more than one hundred 
 thousand acres stripped, every year. This work of devastation is progressing 
 fast. The banks of the lakes and rivers and all sections accessible from either 
 are ravaged at such a pace that but few years more can elapse before that 
 region, in many respects the most wonderful and valuable in the world, will 
 be practically destroyed. The parts acquired or claimed by individuals are the 
 best. A traveler through any desirable portion of that country is sure to be 
 met -with the charge of trespassing, for the cases are rare in which the title of 
 the state to a desirable tract is acknowledged. Some time this deplorable con- 
 dition must be rectified. Every year the loss to the state grows larger, in all 
 cases difficult, and in some cases impossible of recovery. The land is steadily 
 
THE STATE ADMINISTRATION 277 
 
 and rapidly increasing in value. The bogus title burrows further out of sight 
 the longer it is let alone. Witnesses die, and the only thing sure to increase 
 is the encroachment of individuals upon the domain of the state. The enlarge- 
 ment of the canals will require more water and the demand in every direction 
 is increasing, while the supply is steadily falling off. A subject of such magni- 
 tude should not be postponed nor conducted with the halting method which is 
 too apt to distinguish public enterprises in which large appropriations afford 
 convenient resting places in which officeholders may grow old. Not long ago 
 the state appropriated $1,000,000 to preserve the beauties of Niagara Falls. 
 That subject is without significance compared to the Adirondack forests. 
 Every consideration of health, pleasure, economy, and safety urge the speedy 
 consideration of this subject, and such consideration should include appropria- 
 tions adequate to ascertain the nature of the tides adverse to the state, and to 
 recover where the titles are insufficient and to purchase where they are valid. 
 Any other course would be false and unwise economy. 
 
 Thereupon the legislature appropriated ^1,000,000 for the acquisition 
 of forest lands, and created the Forest Preserve Board, with authority 
 to purchase tracts within the Adirondack Park. With this appropriation 
 the board acquired over two hundred and fifty thousand acres at an 
 average cost of $3.74 per acre. In 1898 another appropriation was made 
 of $500,000, and in the years 1899 and 1900, under the administration 
 of Governor Roosevelt, $600,000 was appropriated for these purposes. 
 No further appropriations were made until 1904, when there was an 
 addition of $250,000. In 1906 $400,000 more was appropriated, and 
 this was followed by an appropriation in 1907 of $500,000. With these 
 moneys the forest holdings of the state have largely been increased. 
 Provision has also been made for the acquisition of forest lands in the 
 Catskill Mountains, and the Catskill Park has been delimited, and pur- 
 chases have been made in this region with a portion of the moneys 
 above mentioned. 
 
 The area of the proposed Adirondack Park is 3,313,564 acres, and 
 that of the proposed Catskill Park 576,120 acres, making a total of 
 3,889,684 acres. The land within this Adirondack Park now owned by 
 the state amounts to 1,363,890 acres, and within the Catskill Park 
 the state owns 100,920 acres, making a total of 1,464,810 acres. The 
 lands which are still held in private ownership within these parks thus 
 amount to 2,424,874 acres. The total area of the present state forest 
 preserve, including the lands acquired within the two parks, amounts to 
 1,593,789 acres. Purchases are made from time to time where they can 
 be effected on advantageous terms. The powers formerly possessed by 
 the Forest Preserve Board are now vested in the Forest, Fish, and Game 
 Commissioner, and purchases are made by this commissioner and two 
 commissioners of the Land Office (who are elected state officers) acting 
 under designation by the governor. At present the purchasing board is 
 composed of the Forest, Fish, and Game Commissioner, the state comp- 
 troller, and the Speaker of the assembly. 
 
278 AMERICAN STATE GOVERNMENT 
 
 The provision of the constitution prohibiting the removal of timber 
 from state lands in the forest preserve has been the subject of criticism 
 because of the prevention of scientific forestry. The policy which makes 
 it necessary for trees to be left to fall and decay and makes no provision 
 for taking proper advantage of nature's laws of growth, maturity, and 
 renewal, cannot be regarded as permanent. Under careful superintend- 
 ence the forests may give their natural yield for the benefit of the 
 people without prejudicing their preservation, and indeed to their benefit. 
 This was emphasized by Governor Black. But the experience of the 
 past has taught the people to be cautious in examining proposals for 
 cutting timber. They fear that if the opportunity were offered for the 
 removal of timber under any pretext, the strain upon state administra- 
 tion would be too strong, and that avarice, looking only for immediate 
 gains, would cause the most serious, if not irreparable, losses. They 
 have watched the destruction of the forests too long to be easily satis- 
 fied with promises. They have not been ready to take chances of 
 further devastation of the forests, and they will not be disposed to make 
 changes in the constitutional provision which protects them until the 
 rules of conservative cutting, based upon proper regard for forest pro- 
 tection, are so well established and observed in the exercise of private 
 rights as to remove any menace to the public interest in case the state 
 should be empowered to harvest its forest crop. 
 
 As Governor Roosevelt said in his annual message of 1900 : 
 
 A primeval forest is a great sponge which absorbs and distills the rainwater, 
 and when it is destroyed the result is apt to be an alternation of flood and 
 drought. Forest fires ultimately make the land a desert, and are a detriment 
 to all that portion of the state tributary to the streams through the woods 
 where they occur. Every effort should be made to minimize their destructive 
 influence. We need to have our system of forestry gradually developed and 
 conducted along scientific principles. When this has been done it will be 
 possible to allow marketable lumber to be cut everywhere without damage to 
 the forests, — indeed, with positive advantage to them ; but until lumbering is 
 thus conducted, on strictly scientific principles no less than upon principles of 
 the strictest honesty toward the state, we cannot afford to suffer it at all in the 
 state forests. 
 
 The importance of forestry was also emphasized by Governor Odell 
 and by Governor Higgins. We may therefore look forward to a time 
 when improved methods of caring for the forests will be adopted, and 
 when, with advantage to the state's interests, we shall secure their 
 proper yield. The absolute restriction of the constitutional amendment 
 makes, however, an emphatic protest of the people against any selfish 
 designs upon these resources of the state, and nothing will be tolerated 
 which will in any degree open our forest preserve to greedy spoliations. 
 
 The state not only has sought to protect its forests by purchases and 
 by agreements with owners of forest tracts, but it has also begun the 
 
THE STATE ADMINISTRATION 279 
 
 work of reforestation. While this has so far been prosecuted on a 
 relatively small scale, gratifying progress has been made. We have 
 several nurseries, and this year i, 100,000 pine and spruce trees have 
 been set out. This work can be conducted with comparatively small 
 outlay and in a constantly increasing measure. Appropriation was also 
 made at the last session of the legislature to establish additional nurs- 
 eries for the propagation of forest trees to be furnished to citizens of the 
 state at cost, and to be planted under the direction of the Forest, Fish, 
 and Game Commissioner. 
 
 There has also been a heightened appreciation of the importance of 
 preserving and caring for our natural wonders and places of rare beauty 
 and grandeur, which are of inestimable value for the enjoyment and the 
 inspiration of the people. In 1883 provision was made for the appro- 
 priation of lands at Niagara Falls, and a state reservation was constituted. 
 The legislature has declared that it " shall forever be reserved by the 
 stale for the purpose of restoring the scenery of Niagara Falls and pre- 
 serving it in its natural condition, and kept open and free of access to 
 all mankind without fee, charge, or expense to any person for entering 
 upon or passing to or over any part thereof." A beautiful park adjoin- 
 ing the Falls has thus been provided, depredations have been prevented, 
 unsightly structures have been removed, excellent roads have been laid 
 out, guard rails and bridges have been built, and in all the work of 
 improvement unnecessary artificialities have been excluded. Natural 
 slopes have replaced artificial banks, trees have been planted, and barren 
 spots have been beautified by suitable growths. Thus the visitor to 
 Niagara's sublime spectacle may view the Falls from a borderland, under 
 the protection of the state, where accessibility and convenience have 
 been provided without sacrifice of beauty. Efforts to prevent improper 
 diversion of power and the consequent impairment of the Falls culmi- 
 nated in the Burton Bill passed by Congress in 1906. 
 
 Through- the influence of the late Hon. Andrew H. Green of New 
 York, who had been prominent in the work of restoring natural con- 
 ditions at Niagara Falls, the American Scenic and Historic Preserva- 
 tion Society was founded in 1895, an organization through which the 
 public demand for the preservation of places of scenic and historic 
 interest has found powerful and effective expression. 
 
 It was in 1895 that commissioners were appointed in New York to 
 meet with similar commissioners of New Jersey for the purpose of 
 devising means for establishing a reservation of the Palisades of the 
 Hudson. In 1900 the Palisades Interstate Park was established under 
 the care of the two states, represented by a joint commission. A large 
 amount of shore frontage has been acquired, and in this way the devas- 
 tation of the Palisades has, to an important degree, been prevented. 
 
 In 1906 the beautiful Watkins Glen was acquired as a state reserva- 
 tion. In 1907 the Bronx River Reserve was established, consisting of 
 
28o AMERICAN STATE GC^'ERNMENT 
 
 lands on either side of the Bronx River in New York and Westchester 
 counties, for the purpose of preserving the river from contamination 
 and of creating a parkway for public use. 
 
 Last year also the state recei\cd a munificent gift from William Pryor 
 Letchworth, a distinguished citizen of the state, who has rendered long 
 and notable service in the cause of philanthropy. Mr. Letchworth has 
 conveyed to the state, for the purposes of a public park, a tract of rare 
 beauty lying in \\')-oming and Livingston counties, of about one thou- 
 sand acres in extent. Through this tract, now known as Letchworth 
 Park, flows the Genesee River, with sublime scenery of canyon and 
 waterfall. It is a territory of extraordinary variety of native growths, 
 affording exceptional opportunities to the naturalist and a retreat of 
 peculiar charm for the lover of nature. This benefaction fitly crowns a 
 long life of devotion to the public welfare. 
 
 l3uring the present year another addition has been made to the state 
 reservations by provision for the retention and development as a public 
 park of the property at Fire Island, on the Long Island coast, which was 
 acquired some years ago for the purposes of temporary quarantine. In 
 view of the growth of metropolitan population, the holding of this strip 
 of seaboard for park purposes cannot fail to be of great public benefit. 
 
 A matter of extreme importance to the future prosperity of the state 
 is the development and control of its water powers. With increased facil- 
 ities in the transmission of electrical power, the subject compels attention, 
 as the control of the water powers of the state will mean largely the 
 domination of its industrial activities. From recent statistics it appears 
 that of the entire horse power developed by water for manufacturing 
 purposes in the United States, over one quarter is used in New York. 
 And New York is fortunate in having within her borders so many sources 
 of power, and in possessing extraordinary opportunities for further 
 development. It is difficult to overestimate the great importance of this 
 subject and the necessity of taking wise action at the present time in 
 order that we may properly care for the interests of the future. 
 
 In my annual message to the legislature of 1907, after referring to 
 the importance of the policy of acquiring forest lands, I said : 
 
 In this connection it is well to consider the great value of the undeveloped 
 water powers thus placed under state control. They should be preserved and 
 held for the benefit of all the people, and should not be surrendered to private 
 interests. It would be difficult to exaggerate the advantages which may ulti- 
 mately accrue from these great resources of power if the common right is duly 
 safeguarded. 
 
 After referring to the legislation which had created a Water Supply 
 Commission, charged with duties with regard to potable waters and river 
 improvement, I added : 
 
 It remains to be considered whether it is not advisable to provide a more 
 comprehensive plan, embracing in a clearly defined way the matter of water 
 
THE STATE ADMINISTRATION 28 1 
 
 storage and the use of water courses for purposes of power. The entire ques- 
 tion of the relation of the state to its waters demands more careful attention 
 than it has hitherto received, in order that there may be an adequate scheme 
 of just regulation for the public benefit. 
 
 Pursuant to this recommendation, the legislature of 1907 directed the 
 State Water Supply Commission '" to collect information relating to the 
 water powers of the state and devise plans for the development of such 
 water powers," and appropriated ^35,000 for the purpose. The act con- 
 templated a thorough investigation and the submission of accurate infor- 
 mation and comprehensive plans. 
 
 The commission entered zealously upon its work and procured com- 
 petent expert assistance. In February last it made a valuable preliminary 
 report in which the general phases of the subject were presented in a 
 most interesting and instructive manner : 
 
 Excluding Niagara and St. Lawrence, the rivers of the state, with the proper 
 storage of their flood waters, are capable of furnishing at least 1,000,000 horse 
 power for industrial purposes. On account of the wide difference between the 
 minimum and maximum flow of the streams, the minimum flow being the real 
 test of the power value, at least 55 per cent of their potential energy is lost to 
 the owners of water rights and to the people of the state. It is clear, therefore, 
 that 550,000 horse power of energy is annually allowed to run to waste because 
 no well-devised and comprehensive plan for the general and systematic develop- 
 ment of water power has yet been undertaken by the state. 
 
 At a low estimate the advantage of water over steam power is at least jS 1 2 
 per horse power per year. The annual earning capacity of the wasted energy, 
 based on even so low an estimate, is $6,600,000. Add to this the $1,000,000 
 per year of direct damage caused by floods, and the indirect damage which no 
 one has yet been able to determine, but which is surely equal to the direct dam- 
 age, and the value of an equalized flow during the summer months in the great 
 rivers, which is not inconsiderable, and the possibilities to be derived from 
 proper treatment of the Niagara and St. Lawrence, and the aggregate will give 
 some idea of the value to be obtained by the systematic development and in- 
 crease of the water powers of the state. 
 
 The rivers of the state are and have been open to inspection by every one. 
 The locations of falls and power sites have long been known to individuals, 
 and it has not been difficult to acquire them. Meantime the possibilities of 
 power development have been steadily growing, and the advantages to be 
 gained thereby have been constantly increasing. It is not strange, therefore, 
 that farseeing men have purchased nearly all of the most desirable water power 
 within the state, except such as may be situate along the boundary rivers. 
 
 Up to this time there has not been, and under present conditions there can- 
 not be, such economical and general development of water power by private 
 interests as vvjll include the storing of flood water on a scale at all commen- 
 surate with the advantages to be gained thereby. It is from this method that 
 \he greater amount of increase is to come. Moreover, the individual or corpo- 
 ration that invests money usually does so in the hope of immediate gain — 
 the larger the immediate profits the more enthusiastic the promoter. There 
 is therefore the temptation to cut out of the work everything that can be 
 
282 AMERICAN STATE GOVERNMENT 
 
 postponed or avoided, no matter how essential it may be to the future success 
 of any well-considered plan. The storing of flood waters will provide not only 
 power development at the site of the dam, but will also increase the power of 
 every user down the stream. The fear of improving the plant and the power 
 of a competitor might well restrain an owner of water power from going farther 
 upstream and building a storage dam that would increase the value of his 
 neighbor's plant as well as his own. It is also very difficult for several inter- 
 ests to combine in aid of such a project. Even though they should be willing 
 to engage in a joint enterprise for such a purpose, there would be still the lack 
 of power to condemn land for storage purposes for which recourse must be 
 had to the lawmaking body. 
 
 The United States census of manufactures for 1905, Bulletin 88, shows that 
 of the 1,647,969 horse power developed by water in the United States for 
 manufacturing purposes, 446,134, or 27^ per cent, was used in the state of 
 New York. This is more than twice as much as is used by its principal com- 
 petitor, the state of Maine, and more than one half as much as the total steam 
 power for like purpose used in the state. The increase in water power in this 
 state from 1900 to 1905 was over 100,000 horse power. This rapid increase 
 in so short a period is, without doubt, one of the causes which has attracted 
 the attention of economists to the value for the state's own benefit of this 
 branch of its natural resources. 
 
 By means of storage dams constructed by the state at available points, in 
 order to hold back the flood waters of many of our large rivers, it is possible so 
 to equalize their flow as to more than double the available horse power they 
 now produce. Such improvement can be made to yield a revenue that will not 
 only pay the cost of constructing and maintaining the dams, but that also will 
 provide a large income for the state for all time. 
 
 The commission believes that through the building by the state of storage 
 dams, thus conserving water for power purposes, five distinct advantages will 
 accrue : 
 
 {a) The construction of such dams will decrease the annual damage by flood 
 waters. 
 
 [l>) It will assure a larger minimum flow, which will improve the sanitary 
 conditions. 
 
 {c) It will provide a deeper channel for the Hudson, thus improving naviga- 
 tion and insuring an abundance of water for the increasing needs of the canal. 
 
 {d) It will provide cheaper power for manufacturing purposes, and by stim- 
 ulating various industries furnish larger fields of employment, while insuring 
 uninterrupted labor in already existing plants. 
 
 (e) It will provide a satisfactory annual income to the state. 
 
 Each of these points is in itself worthy of the careful investigation which the 
 legislature has directed to be made. 
 
 Controllable power is the vital force in our industrial development, and one 
 of the chief elements upon which civilization is based. Manufactories, trans- 
 portation, and artificial light are largely dependent upon it. The more complex 
 our civilization, the more intricate our manufacturing enterprises ; and the more 
 important rapid transit becomes, the greater our dependence upon this force. 
 There are two sources of power available, — coal and falling water. Both 
 require skill and money to turn their latent force into active energy. Coal 
 once used is gone, but water, however often utilized, returns again. Coal is 
 
THE STATE ADMINISTRATION 283 
 
 growing less plentiful and more expensive, while water, by the processes of 
 nature, keeps up its original force without additional cost. 
 
 It is universally conceded that the use of falling water for power purposes is 
 much more economical than coal. As a competition becomes more acute the 
 value of water power over steam becomes greater. Cheap power must continue 
 to be a vitally interesting subject to those who manufacture goods, provide trans- 
 portation, and furnish light. The discoveries which permit the carrying of 
 electrical currents a long distance have largely increased the value of falling 
 water for power purposes. Such power must of necessity continue to grow in 
 value as new opportunities for its use appear, and as the price of fuel advances. 
 
 This is a plain statement of an almost elementary truth with which all who 
 stop to consider our industrial conditions are familiar. This economic condi- 
 tion is attracting attention to the possibility of the greater use of falling water, 
 and constitutes a summons to those in authority to provide a way to save the 
 lost energy that is annually allowed to run to waste in our rivers. 
 
 For years nature has presented the spectacle of wasted energy in water 
 courses, and the action of the governor and legislature in directing so impor- 
 tant a work as the conservation of this wasted power meets the hearty approval 
 of all who have given the subject serious thought. 
 
 The commission also gives the results of preliminary studies in differ- 
 ent sections of the state. At the last session the legislature appropriated 
 $75,000 for further investigations by the commission, and it is confidently 
 expected that as a result of its work there will be an important develop- 
 ment of our water powers and their conservation for the benefit of all 
 the people of the state. 
 
 In connection with this it may be noted that the state last year estab- 
 lished a precedent of requiring proper compensation for grants of power 
 privileges in public waters. 
 
 Water-power privileges have been granted in the past without any pro- 
 vision for a payment to the state in return for what the state gives. These 
 grants have frequently been made without proper reservations or condi- 
 tions, and without anything constituting a suitable consideration. They 
 have amounted simply to donations of public rights for private benefit. 
 It does not fetter individual enterprise to insist upon protection of the 
 common interest and due payment for what is obtained from the public. 
 Last year, on the grant of a franchise to a development company which 
 was to develop power from the St. Lawrence River, it was insisted that 
 provision should be made for compensation for the privilege upon a 
 sliding scale according to the power developed. And thus it was estab- 
 lished that hereafter in the state of New York pubHc privileges, on terms 
 of justice to the investors and the public alike, must be paid for. 
 
 The conservation of our resources means not simply their physical 
 preservation, but the safeguarding of the common interest in the bounties 
 of nature and their protection both from the ruthless hand of the destroyer 
 and from the grasp of selfish interest. The course of events in the state 
 of New York during the past few years, which has been but imperfectly 
 
284 AMERICAN STATE GOVERNMENT 
 
 described, is full of encouragement to those who have faith in the capac- 
 ity of the people to protect their just concerns and to secure administra- 
 tion which places the general welfare above every consideration of mere 
 private advantage. The progress in the state of New \'ork to this end is 
 significant of the healthy growth of sentiment which the meeting of this 
 conference cannot fail further to promote. 
 
 FORESTRY BY THE STATES^ 
 By Henry S. Graves 
 
 The work of the states in forestry conservation consists of (i) organ- 
 ized fire protection; (2) establishment of state forests, especially at the 
 headwaters of rivers ; and (3) promotion of forestry through assistance 
 to private owners through reasonable taxation and education. 
 
 For a long time there have been in many states laws regarding the 
 setting of forest fires. These laws have been ineffective, because there 
 has been no public sentiment behind them and no adequate organization 
 to enforce them. 
 
 In recent years there has been a distinct increase in the activities of 
 the states in legislation looking to systematic fire protection. Through 
 good laws, properly enforced, many causes of fire may be eliminated. 
 Carelessness in the use of fires in clearing land, in burning brush, in 
 leaving camp fires, in smoking, etc., may be largely stopped. Most fires 
 from locomotives, sawmills, and donkey engines are not necessary, 
 because there are practical appliances to prevent the escape of sparks 
 from engines. When railroad fires occur it is usually because the best 
 appliances are not used or are not properly used. 
 
 Adequate forest protection is, however, impossible without an organi- 
 zation to enforce the laws and to guard against fires. Laws designed to 
 establish organized fire protection have been enacted in the following 
 twenty-four states : California, Connecticut, Colorado, Idaho, Louisiana, 
 Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, New 
 Hampshire, New Jersey, New York, Ohio, Oregon, Pennsylvania, 
 Rhode Island, South Carolina, Tennessee, Vermont, Washington, West 
 Virginia, and Wisconsin. 
 
 As a rule, these states have a system of local fire wardens appointed 
 by the counties or towns. Their duty is to repair to any fire in their 
 respective districts and extinguish it. Usually the wardens have the 
 power of arrest for forest misdemeanors, and may impress help for 
 fighting fires. The organization of the fire wardens varies considerably 
 m different states. In some there is a regular department of forestry 
 
 1 From an article in the Revinv of Reviews on " The Advance of Forestry in the United 
 States," April lo. Reprinted by permission. 
 
THE STATE ADMINISTRATION 285 
 
 headed by a state forester, who has, among other duties, supervision over 
 the fire wardens. In other states this work is in charge of a chief fire 
 warden, Forest Commission, or Fish and Game Commission. The best 
 results are obtained by having a technically trained state forester, who 
 will not only direct the work of the fire wardens, but have supervision 
 of all other forestry interests in the state. 
 
 One of the chief defects in most of the fire protective systems is that 
 they provide only for fighting fires, but do not provide for a systematic 
 watching of the forests to prevent fires from starting. The idea of a 
 systematic patrol has recently been introduced in a number of states. 
 The new fire law of New York makes provision for the patrol of the 
 forests, and it has already proved successful. 
 
 The most serious handicap in fire protection and in other state work 
 in forestry has been the inadequacy of appropriations. Success in fire 
 protection can only be secured by close organization and supervision of 
 the force of fire wardens. This has been prevented in most states by 
 lack of funds. For this reason the results have often been poor com- 
 pared with what might be secured with reasonable further expenditures. 
 
 Another important feature of state forestry is the establishment of 
 state forests. Their objects are to protect areas which should be kept 
 under forest cover for the regulation of stream flow and the prevention 
 of erosion, to furnish a demonstration in forest management for private 
 owners, and to provide an assured supply of timber. New York takes 
 the lead in acreage of state forests. Its reservations aggregate over one 
 and one-half million acres, and the policy is to increase the acreage very 
 largely. The state has a vigorous state commission and a competent force 
 of foresters. Pennsylvania follows with a reservation of nearly a million 
 acres. Other states that have started the policy of acquiring state forests 
 are California, Colorado, Connecticut, Indiana, Maryland, Massachu- 
 setts, Michigan, Minnesota, New Hampshire, New Jersey, Tennessee, 
 Vermont, and Wisconsin. The total area of state forests now approxi- 
 mates two and three-quarter million acres. 
 
 A further duty of the states is to enact reasonable laws of taxation. 
 The problem of taxation is being studied by a number of states and by 
 the national government, but as yet little progress has been made toward 
 a sane and uniform system. In the long run the present system of taxa- 
 tion, if continued, will contribute directly to forest destruction. 
 
 The states should help private owners, not only by aid in fire protec- 
 tion and reasonable taxation, but by advice given through the state 
 forester as to the best practical methods of forestry. There is a large 
 work which can be accomplished by the states in general educational 
 work in forestry and in scientific research and experiment. This work 
 locally applied would be along much the same lines as is conducted in a 
 broader way by the government. 
 
286 AMERICAN STATE GOVERNMENT 
 
 PRESENT SUPERVISION OF LIFE-INSURANCE 
 COMPANIES, ITS MERITS AND DEFECTS * 
 
 By S. Herbert Wolfe, F.S.S. 
 
 There are some who maintain that state supervision of all kinds is 
 merely a form of pernicious paternalism. Be this as it may, we are 
 brought face to face with the fact that the supervision of corporations 
 is becoming more extensive day by day, and the intention of the govern- 
 ment not only to exercise supervisory functions, but to participate actively 
 in the management of semipublic corporations, is well illustrated by the 
 agitation relative to railroad rate-making. Since the state has decided 
 that the best interests of its citizens are served by requiring its physicians, 
 its dentists, its veterinarians, and even its barbers (New York state now 
 requires " tonsorial artists " to pass examinations before the State Licens- 
 ing Board) to demonstrate their fitness to practice, there is no real reason 
 why it should not extend its protective system over the life-insurance 
 policies held by its citizens. In fact, there exists a positive reason why 
 it should do so, inasmuch as, life insurance being based upon mathemat- 
 ical and scientific principles, its essentials are beyond the knowledge of 
 the average man. Were a banking institution to offer a man 6 per cent 
 interest upon his daily balances, he would realize from his knowledge of 
 business conditions that such an offer was inconsistent with proper and 
 conservative banking methods ; in consequence he would decide to have 
 nothing to do with an institution that made such an offer. When an in- 
 surance agent, however, offers this same man a policy of insurance, he 
 is unable to determine whether the premiums which he is to pay are ade- 
 quate, or whether the company standing back of the contract is being 
 conducted along safe lines. It is to be regretted that the history of the 
 past twenty-five years in this country indicates that mere cheapness has 
 Iseen an unduly exaggerated factor in the mind of the insuring public. 
 The rise of assessment organizations, their wonderful and unprecedented 
 growth, and the subsequent failure of many of them, owing to the inad- 
 equacy of their premiums and their managerial mistakes, all point to the 
 inability of the average citizen to select safe depositories for his insurance 
 premiums. 
 
 The state has a vital interest in the successful administration of life- 
 insurance companies. They are encouragers of thrift ; upon the death 
 of the wage earner the proceeds of the insurance policy are, in many 
 cases, the only barrier between the family and pauperism. For that rea- 
 son life insurance takes its place in the economic structure and occupies 
 a peculiar niche, for it not only encourages habits of economy and com- 
 pels periodic deposits of money (as contrasted with the voluntary depos- 
 its which are made in savings banks), but it exercises the more important 
 
 1 Reproduced from NoHh American Review, July, 1905. Reprinted by permission. 
 
THE STATE ADMINISTRATION 287 
 
 function of distributing the losses of the few among the many. It has 
 been well said that nothing is so uncertain as the date of the death of 
 any particular individual, and nothing is more certain than the number of 
 individuals who will die in any given year. Insurance eliminates the 
 hardship which would be occasioned by the premature death of the in- 
 dividual, in such a way that each of the contributors pays his share of the 
 mathematical probability of his death during the given period. As an illus- 
 tration of the recognition by the state of this peculiar economic relationship, 
 ' it may be pointed out that in Europe we find a system of compulsory 
 governmental insurance, covering not only death from all causes, but 
 also disability from accident and disease. 
 
 It may not be uninstructive to show by a few concrete illustrations 
 the extent to which life insurance has entered into the everyday life of 
 the people. The United States leads the world in the size of the com- 
 panies domiciled within its borders. Taking, for example, the records of 
 three of the largest companies, we find that at the end of the last calen- 
 dar year they controlled between them $1,242,731,113.35 of assets. 
 Now bear in mind that an insurance company is not a productive corpo- 
 ration. It receives certain moneys ; it invests them ; it distributes these 
 funds to the beneficiaries of the policyholders who die during the exist- 
 ence of their contracts, or to those who, by their survival of a stated 
 period, are entitled to such participation. The corporation itself is there- 
 fore merely a collecting and distributing bureau. It produces nothing. 
 It is the receiver, the custodian, the investor and disburser of the funds 
 which its policyholders pour into its coffers. These remarks are equally 
 true either for the life-insurance company with a capital stock or for one 
 organized absolutely upon the mutual plan. In the former case there 
 may be some charter or statutory provision which will permit the stock- 
 holders to receive certain dividends ; but the distinction must be sharply 
 drawn between the capital stock of a life-insurance company and that of 
 an industrial corporation, for in the~ latter the operations are conducted 
 and extended by means of the contributions of the stockholders, while in 
 the former the policyholders contribute the assets. 
 
 It has been pointed out that three of these companies alone owned on 
 December 31, 1904, nearly $1,250,000,000 in securities of various kinds. 
 This great sum represents the contributions of individuals scattered 
 throughout the civilized world, and numbering at that time 2,158,749. 
 The foregoing facts have apparently been lost sight of in the reports of 
 the internal strife in one of these corporations which have recently been 
 so prominent in the daily press. Eminent counsel representing the vari- 
 ous factions among the officers and directors have used all of their talents 
 to secure advantages for their respective clients ; but the great army of 
 policyholders, the real owners of the assets of the institution, are a dis- 
 organized body unable to protect their own interests properly. The 
 question naturally arises, therefore. Does the state, after bringing these 
 
288 AMERICAN STATE GOVERNMENT 
 
 corporations into being, assume no responsibility for the safeguarding 
 of the interests of the policyholders ? 
 
 State supervision exists in every country. In Germany the government 
 not only exercises powers of visitation and supervision over its insurance 
 corporations, but actually participates in the management of their affairs, 
 specifies the mortality tables to be assumed, the commissions which may 
 be paid, the time when their profits shall be distributed to the policy- 
 holders, etc. In the United States we attempt to supervise our life- 
 insurance companies by means of insurance departments existing in 
 each of the fifty-one states, territories, and districts. These supervisors, 
 in nearly every case, are appointed by the governors. In a very few in- 
 stances (Delaware and Wisconsin, for example) they are nominated as 
 are other state officers and elected by direct vote of the people. They 
 have various titles, usually being called Superintendent of Insurance or 
 Insurance Commissioner. In some cases the auditor of state is insurance 
 commissioner ex officio, and in a perfunctory manner combines the super- 
 vision of insurance companies with that of state banks, savings banks, 
 building and loan associations, etc. 
 
 It will be seen from this that the supervising officer is part of the 
 political machinery of the state, and the besetting sin of American civic 
 government — the political pull — is responsible for whatever lack of 
 efficiency there may be in this important branch of the state government. 
 It is an unfortunate fact that this office, which comes into such close and 
 vital relationship with the interests of so large a number of citizens, 
 should be handed out as a reward for political services. It must not be 
 understood that this is a sweeping condemnation of all insurance depart- 
 ments or a denunciation of every insurance commissioner, for some have 
 appreciated the importance of their duties, have cast off all political yokes 
 and affiliations, and have succeeded in reforming serious evils which ex- 
 isted in the business. It is merely a criticism of a system which takes 
 men with no technical education, places them in charge, of one of the 
 most important bureaus, and then, without regard to their honesty, effi- 
 ciency, or record, sweeps them out of office and hands their positions to 
 some new, inexperienced man as a reward for political services rendered 
 at the last election. This condition of affairs is to be found in nearly 
 every state in this country. The most notable exceptions are the New 
 England states, where many of the insurance commissioners have been 
 in office for a great number of years, and are thus, by their experience, 
 enabled to serve the interests of their policyholders with fidelity and ability. 
 
 The method of appointing or electing the supervising officer has been 
 touched upon before referring to the statutes themselves, for, no matter 
 how good or how bad the laws are, their beneficial effect is directly 
 proportionate to the efficiency of the supervising officer. Given a state 
 whose statute books contain a set of ideal insurance laws, but whose 
 supervising officer is weak and inefficient, and it will be found that the 
 
THE STATE ADMINISTRATION 289 
 
 results attained, as far as the interests of the policyholders go, are inferior 
 to those of some neighboring state whose insurance code is less elaborate, 
 but where the supervising officer is a man of sterling integrity, imbued 
 with the knowledge of the importance of the duties assigned to him, and 
 determined at all hazards to protect the interests of his policyholders. 
 
 The duties of an insurance commissioner are threefold : 
 
 First. To see that the insurance laws of his state are obeyed. 
 
 Second. To see that the policyholders receive equitable treatment from 
 the corporations under his supervision. 
 
 Third. To see that the corporations receive fair treatment. 
 
 The insurance laws of most of the states are in a deplorable condition. 
 They were enacted at a time when life-insurance companies had not at- 
 tained their present growth, and consequently are inadequate to meet 
 the needs of the present conditions. The chief points of regulation which 
 are aimed at in the insurance laws may be briefly summarized as follows : 
 
 (i) The establishment of a standard of solvency by which the financial 
 condition of the organization may be tested. It is apparent that the ascer- 
 tainment of the outstanding liabilities of an insurance corporation is a 
 much more difficult proposition than is met with in determining the 
 liabilities of any other financial institution. The present value of a life- 
 insurance contract is dependent not only upon the accumulation oi interest, 
 but also upon the operation of the law of mortality. A life-insurance com- 
 pany may have more than enough funds on hand to pay all of its accrued 
 death claims, and still be in such a perilously insolvent condition as to 
 render its further operations extremely hazardous. The principles upon 
 which legal-reserve insurance companies are founded contemplate the 
 establishment of a sufficient amount in the early years of the history of 
 a life coQtract to overcome the deficiency in later years caused by the 
 naturally excessive mortality resulting from old age. It is absolutely 
 necessary that a company should have sufficient funds on hand, available 
 for payment in the future, to equal the present value of these contracts. 
 The state therefore prescribes a mortality table and a rate of interest 
 which may be applied in calculating the present value of a company's 
 policy contracts. Companies are required to list their policies, send their 
 lists to the Insurance Department of the state in which they are domiciled, 
 and the actuarial department then ascertains the liability on account of 
 such contracts. 
 
 (2) Prescribing the itivestments in which a company 7nay invest its funds. 
 ;It will be recognized that this is one of the most important features of 
 supervision ; for if the funds of a lifeMnsurance company be invested im- 
 properly, the entire structure must fall to the ground. The laws of nearly 
 all the states permit companies to purchase sufficient real estate for the 
 conduct of their own business. This has been, by practice, construed to 
 permit a company to erect a large office building, but a small part of 
 which is occupied for its own operations. It goes without saying, of course, 
 
290 
 
 AMERICAN STATE GOVERNMENT 
 
 that companies are permitted to take title to such real estate as they are 
 compelled to acquire under foreclosure, although the laws of many of the 
 states require such property to be sold within a given time, usually five 
 years, unless the necessary certificate is secured from some state officer 
 setting forth that a forced sale would result injuriously to the interests of 
 the policyholders. A large part of the funds of insurance companies is 
 invested in bond and mortgage on real estate, and the laws usually pre- 
 scribe that such real property shall be improved, unincumbered, and worth 
 50 per cent more than the amount loaned thereon. The weak part of 
 this requirement is that it makes no provision for ascertaining the actual 
 worth of the property. The restriction is therefore valueless. 
 
 The next broad subdivision of investments is the bonds and stocks. 
 The statutes of a state in which are located large insurance interests pro- 
 vide that, after making the deposit with the superintendent of insurance, 
 the residue of the capital and the surplus money and funds " may be in- 
 vested in, or loaned on the pledge of, any of the securities in which 
 deposits are required to be invested, or in the public stocks and bonds of 
 any one of the United States, or, except as herein provided, in the stocks, 
 bonds, or other evidence of indebtedness of any solvent institution incor- 
 porated under the laws of the United States, or of any state thereof." 
 Companies are not permitted to loan upon or own the stock of any other 
 insurance corporation transacting the same kind of business. It will be 
 seen at once that the field of investment permitted under this act is so 
 broad as to contain practically no restrictions. It is responsible for many 
 of the evils which have crept into the business, and which must, in the 
 very near future, be remedied, in order that the institution of life insur- 
 ance shall occupy its legitimate field. It was never intended that the 
 funds of any corporation of this kind should be used for the pi^rpose of 
 controlling subsidiary corporations engaged in the transaction of other 
 forms of commercial enterprises. The spectacle of insurance companies 
 owning the controlling interest in the stock of banks, trust companies, 
 trolley roads, and industrial corporations of various kinds, is neither a 
 pleasant nor a reassuring one. The evils to which such a condition of 
 affairs can lead have been given great prominence in recent public prints. 
 If the supervision of insurance companies is to be worth anything, it 
 must, in the very near future, devote its serious consideration to the 
 establishment of more rigorous standards, preventing the use (or misuse) 
 of the policyholders' contributions for personal gain or aggrandizement. 
 In addition to the foregoing, companies are permitted to loan to their 
 policyholders an amount not exceeding the reserve which is maintained 
 on their policies. This constitutes one of the safest and most desirable 
 investments which a company can make. It is hard to imagine a more 
 thoroughly secured loan than one of this character. Should the policy- 
 holder die, the loan, by its terms, immediately becomes due and pay- 
 able, and is deducted from any proceeds which are turned over to the 
 
THE STATE ADMINISTRATION 
 
 291 
 
 beneficiary. It is dependent for its security upon the progress of no 
 outside institution. It can never be repudiated, as have been the bonds 
 of some municipalities. If the policyholder permits his policy to lapse, 
 the company is amply protected ; for it has in its possession the man's 
 reserve, which, it will be borne in mind, is the excess payments which 
 he has made to provide for the maintenance of a level premium through- 
 out his contract. 
 
 (3) The ministerial functions. Under this heading comes the important 
 duty of preparing and distributing the blanks upon which the companies 
 are required to render an annual account of their transactions of the 
 previous calendar year. The development of this blank is a most inter- 
 esting one. It is not so very long ago that a primitive form then in use 
 gave practically no insight into the true condition of the corporation. 
 The gradual introduction of more scientific methods and of a more de- 
 tailed analysis of the various items has produced a statement form which 
 enables an experienced observer to obtain a fair knowledge not only of 
 the financial condition of the company but also of its methods of oper- 
 ation, its expenses of management, its ability to keep its business upon 
 its book, etc. It may be interesting to know that the last blank adopted 
 by the National Convention of Insurance Commissioners of 1902 sub- 
 divided the income of companies under twenty-seven heads, the disburse- 
 ments under twenty-nine, the assets under twenty-seven, and the liabilities 
 under twenty-four. It will be seen from this that a fairly comprehensive 
 analysis has been attempted. 
 
 (4) The power of visitation. To require corporations to make periodic 
 reports and to provide for no way of verifying such reports would mani- 
 festly be ridiculous. In consequence the insurance statutes of nearly 
 every state provide that the head of the department, or somebody selected 
 by him, is authorized to visit the office of any insurance company trans- 
 acting business in his state, for the purpose of making an examination 
 of its condition and ascertaining whether the laws of the state have been 
 strictly complied with, and whether its operations give indication of having 
 been conducted along conservative lines. There is no more important 
 duty intrusted to the supervising officer than is this one. He must take 
 all of the necessary precautions to assure himself that the property which 
 the company displays for his inspection is owned absolutely by it ; that 
 the lists of policies submitted to him for valuation are complete and in 
 accordance with the terms of the contracts, for to verify the assets without 
 looking after the liabilities would be worse than useless. If he finds that 
 a company fails to pay its death claims promptly, is being conducted for 
 the benefit of its officers and directors rather than its policyholders, is 
 developing into an institution whose funds are used for the promotion of 
 industrial or financial enterprises rather than in the field of legitimate in- 
 vestments, it becomes his duty to attempt to correct such abnormal con- 
 ditions. Publicity, it will be found, is the greatest corrective of corporate 
 
292 
 
 AMERICAN STATE GOVERNMENT 
 
 e\'ils, and every polin-holder is entitled to know every detail which directly 
 affects his contract. No institution conducted along safe and conservative 
 lines need fear the searchlight of publicity. 
 
 It is greatly to be regretted that, in the past, some unscrupulous com- 
 missioners have used the examining statutes of their state as a means of 
 securing pleasure trips around the country at the expense of the companies 
 examined. At one time there was an epidemic of this pernicious activity 
 on the part of certain men temporarily clothed with great authority. It 
 is practicallv unheard-of to-day. The responsibility, however, of deter- 
 mining whether a company is fit to transact business within a state is 
 one which is placed in the hands of every commissioner. He is not 
 authorized to delegate this power to the commissioner of any other state, 
 and it becomes the duty, therefore, of every conscientious state officer to 
 investigate for himself, if he has any reason to believe that the home 
 department is incompetent or unwilling to make the proper investigation. 
 
 The above brief rdsumd of some of the duties of the head of an 
 insurance department will serve to indicate the great responsibility attach- 
 ing to the office. The technical nature of the life-insurance business, its 
 close affiliation with the financial world, and the great number of citizens 
 interested in its successful administration, are all arguments for the elim- 
 ination of the political nature and character of the office. The judicial 
 frame of mind, so necessary to the proper contemplation of the problems 
 arising in connection with supervision, is only acquired after years of 
 practice and experience. To expect a man trained in other walks of life 
 to develop suddenly into a competent supervisor, is to ask the impossible. 
 Life insurance is a huge structure, and its erection must be watched by 
 competent eyes. If the foundation be placed upon shifting sands, if the 
 materials entering into the building are of inferior quality, or if the work 
 of upbuilding is conducted improperly, the structure will fall to the 
 ground, bringing desolation and ruin to great numbers. It is to the credit 
 of state supervision that such good work has been accomplished with 
 such poor tools. With the full realization upon the part of the people of 
 the cost to them of the failure of a weak and pliable commissioner to do 
 his duty, may we not hope that, before another decade passes, we shall 
 see the office stripped of its political nature and its administration in the 
 hands of men equipped by education and training to protect the interests 
 of the millions of policyholders throughout the world ? When that time 
 comes, the funds of a life-insurance company will never be regarded as a 
 means whereby one group of financiers may profit at the cost of another 
 group. The title to the funds will rest securely in the policyholders, and 
 the only thing needed to effect this transformation is the realization upon 
 the part of the policyholder of the necessity for it. 
 
THE STATE ADMINISTRATION 293 
 
 SEPARATION OF THE SOURCES OF STATE AND LOCAL 
 
 REVENUES 1 
 
 By T. S. Adams 
 
 It is important to note that separation of state and local revenues has 
 ceased to be merely an end in itself, and has taken on added significance 
 as the initial step of a thoroughgoing reform. " We are justified," says 
 the recent Missouri Tax Commission, " in saying that this separation of 
 the sources of state and local revenues is now generally recognized as the 
 first essential step in any enduring tax reform." 
 
 The second step, in the opinion of most writers and tax commission- 
 ers who have recendy considered this subject, is the so-called " home 
 rule," or " local option." "" Separation," says the report of the California 
 Commission (of 1906) on Revenue and Taxation (p. 1 1), " establishes, at 
 once, home rule in matters of taxation." And so, similarly, the report of 
 the Missouri Commission of 1907 (p. 10) : "The local taxing districts, 
 the counties and cities of the state, will then [when separation is effected] 
 have practical home rule in matters relating to taxation." And, " as 
 regards the question of adequate local revenue, the simplest plan indeed," 
 as Professor Seligman expresses it, "is to have a separation of state and 
 local taxation, with local option on the part of the localities to tax or to 
 exempt from taxation whatever classes of property they see fit." 
 
 From these expressions it would appear that the dual program of 
 separation and home rule is one, primarily, of financial decentralization. 
 The state government having taken over most of the fees and license 
 taxes, nearly all of the corporation taxes, and perhaps some of the taxes 
 on personal property, in addition, of course, to the inheritance tax, blandly 
 says to the wondering little local governments gathered about the mater- 
 nal knee : " Now, little children, you are free. Go your way and I shall 
 go mine. I shall keep the taxes and revenues just mentioned, and you 
 — you may have the general-property tax. Considering the liberality 
 of the division, I confidently expect you to be able, in the future, to get 
 along without the pernicious and demoralizing tax on personal property." 
 
 This thorough divorcement of state and local revenue systems is, on 
 the surface, exceedingly attractive to almost every one. The economist 
 looks upon it with favor because it promises the abolition of the personal- 
 property tax. The single taxer applauds it because it legalizes the 
 exemption of improvements as well as that of personal property. The 
 business man approves it because it offers a means of securing honor- 
 ably and openly that exemption of plant and stock which so many mer- 
 chants and manufacturers at the present time are securing illicitly and 
 covertly. Of course it may mean, instead of exemption, more strenuous 
 
 1 Read at the National Conference on State and Local Taxation, held at Columbus, Ohio, 
 November 12-15, I9°7i under the auspices of the National Tax Association. 
 
294 AMERICAN STATE GOVERNMENT ' 
 
 attempts to assess personal property, and increasing efforts, in most 
 localities, to lighten the load upon real estate by increasing the burden 
 upon business. But the advocates of home rule are willing to take their 
 chances. The program of reform apparently promises greater liberty to 
 everybody concerned, and, as consistent Democrats, they properly refuse 
 to be frightened by the fact that liberty may degenerate into license. 
 
 Despite its attractions, however, I believe that, on the whole, the pro- 
 gram just described — the idea of complete separation of state and local 
 finances with fiscal autonomy in each sphere — is impossible of realiza- 
 tion and retrogressive in direction, making away from and not toward 
 the real solution of our most important problems. I believe that real 
 progress lies in the direction of centralization, not decentralization, of fiscal 
 control. The reasons for this statement must be discussed in some detail. 
 
 I. In the first place, separation and home rule cannot materially 
 increase the positive fiscal freedom of the local governments. It is doubt- 
 ful whether they can safely be permitted to exempt any class of property 
 they desire to relieve from taxation ; but it is perfectly plain that they can- 
 not be allowed to devise new taxes. Take the income tax, for example. 
 Not only would it be impossible for a local government to administer the 
 income tax without the right to call upon other officers of the state for 
 information and assistance, but the difficult definitions and interpretations 
 of income which the various local governments might introduce would 
 bring about an intolerable amount of multiple taxation. Or take the 
 much more feasible project of license or business taxes upon commercial 
 and manufacturing concerns in lieu of the present taxes upon plant and 
 stock. The various local districts of a state could never be permitted to 
 define and manipulate such taxes as they might see fit. Suppose a man- 
 ufacturing concern had its factory and warehouse in village A and its 
 principal office and salesroom in city B. The village might impose the 
 present property tax on plant and stock, while the city might, by adopt- 
 ing some plan of apportioning the total capital value of such concerns 
 according to business done or gross income, tax practically all of this 
 property again in another way. Furthermore, the local governments 
 could not safely be permitted to tax individual categories of personal 
 property as they saw fit. Take mortgage taxation. County A might 
 institute a recording tax and county B the separate taxation of mortgages 
 as personal property. Yet an individual mortgagee residing in B might 
 lend his money in county A, with the result that, whether mortgagee or 
 mortgagor ultimately paid the tax, it would be double or multiple taxa- 
 tion of the most vicious kind. In general, it is a safe conclusion that the 
 income tax, business taxes, and all manner of ad valorem assessment in 
 the spirit of the so-called unit rule would have to be denied the local gov- 
 ernments under the scheme of home rule. With the growing and com- 
 mendable practice of distributing the intangible values of going concerns 
 in accordance with their business or tangible property, it is doubtful 
 
THE STATE ADMINISTRATION 295 
 
 ' whether even the method of assessing tangible property can be left to 
 the discretion of the local governments. The opportunities for double 
 taxation are too manifold. While the habitation or occupancy tax might 
 safely, perhaps, be left to the local governments (although even this is 
 problematical), most of the possible substitutes for the personal-property 
 tax can be introduced only as state taxes. As a matter of fact it is prob- 
 able that the average legislature will never permit the local governments 
 to bid against each other for the location of manufacturing concerns, 
 although the pros and cons of this particular scheme seem to be evenly 
 balanced. In other words, the tax laws for the local districts will always 
 have to be made by the state legislature. 
 
 Evidently, then, the phrase " home rule " does not mean exactly what 
 the words imply. We want the local governments to have the liberty to 
 exempt personal property, but we do not want them to have liberty to 
 tax corporations as they please. We are advocating freedom when what 
 we want, or at least the only thing we can have, is another kind of con- 
 trol. What we need is not less state regulation in the matters of local 
 taxation, but more intelligent state regulation. 
 
 II. Not only is centralization a good thing, but we are getting more 
 centralization every day. If we examine the forward movement which 
 has resulted in partial or complete separation in several of our most 
 progressive commonwealths, we find that it was aimed primarily at 
 the reform of corporation taxation, and achieved separation incidentally, 
 largely as a by-product. (Wisconsin, for instance, has ceased to levy prop- 
 erty taxes for the support of the state government, but there has been 
 no popular demand for separation in Wisconsin, practically no discussion 
 of the subject, and little attention paid to it.) Corporation taxation under 
 the old regime, when controlled by the local governments, had proved a 
 striking failure ; the assessment of such corporations had to be central- 
 ized, and in the process of centralization the state retained many corpo- 
 ration taxes simply because it was difficult to apportion corporate values, 
 for purposes of taxation, among the various local districts. These corpo- 
 ration taxes proved so lucrative in many cases that it became practicable 
 to discontinue the levy of state property taxes. 
 
 Now there is just one element common to this movement in practically 
 all states. It is not the separation of state and local revenues. Many 
 advanced states, Massachusetts for instance, are not yet within striking 
 distance of separation. Neither is it the complete retention of corpora- 
 tion taxes by the state. The one characteristic of the advance movement 
 which is always and everywhere found is centralization of the assessment 
 power. The most striking characteristic of the past has been the decen- 
 tralization of the administrative machinery of taxation. The most striking 
 feature of the present is the universal and rapid progress toward central- 
 ization of fiscal control. And the banner of reform is being carried by 
 the State Tax Commission. 
 
296 AMERICAN STATE GOVERNMENT 
 
 It is unnecessary to discuss in detail the evolution of the permanent 
 Tax Commission. At the present time permanent commissions exist in 
 at least eight states, and scarcely a )-ear passes without the creation of a 
 new commission. As the number of such commissions increases their 
 functions are multiplied. At first they did little more than assess a few 
 important classes of corporations. Gradually new duties, broader powers, 
 were added ; they were instructed to provide uniform blanks for local 
 assessments, to assist or actually to make state equalizations, to inspect 
 and criticize the work of local assessors, to revise county equalizations, 
 and order reassessments of property. To-day the tax commissions of 
 seven states are empowered to institute proceedings for the removal of 
 inefficient assessors ; in seven states they are authorized to add property 
 to the assessment rolls or to order the reassessment of particular parcels 
 of property ; in four states they may order the reassessment of entire 
 districts ; and in six states they are authorized to renew and readjust the 
 county equalizations. It requires no unwarranted stretch of the imagina- 
 tion to foresee a time when the whole machinery of local and state assess- 
 ment, in the more advanced American commonwealth, will be coordinated 
 and correlated under the control of a high-grade permanent tax commis- 
 sion ; when a permanent corps of expert assessors, holding office during 
 good behavior and absolutely divorced from politics, will banish from 
 American administration and American politics the miserably inefficient 
 local assessor. It is because I see in the present program of separation 
 and home rule, the potential beginnings of a countermovement to this 
 centralization of assessment, which seems to me so supremely important, 
 that I take upon myself the unpleasant task of scrutinizing so critically 
 the possibilities of a program with which, in the main, I am in hearty 
 sympathy. If home rule, local option, and fiscal decentralization militate 
 in any important way against the reform of the local assessment work, 
 they are not worth the cost. 
 
 III. The position just taken — the proposition that separation should 
 be judged accordingly as it strengthens or weakens the character of the 
 assessment work of the state — may be regarded as the central thesis of 
 this paper, and the remainder of my time will be devoted to the consider- 
 ation of a somewhat miscellaneous group of topics bearing upon this point. 
 
 First of all I desire to recall to your attention the very familiar and ex- 
 ceedingly important fact that, measured in dollars and cents, the work of 
 the local assessors is far and away the most important part of our fiscal 
 system. Compared with the general-property tax, corporation taxes, in- 
 heritance taxes, and all the other taxes put together pale into insignificance. 
 In 1902 more than three fourths of all the general revenues of the state 
 and local governments came from taxes upon general property, and if 
 the state taxes levied upon general property in that year had all been se- 
 cured in some other way — say by subventions from the federal govern- 
 ment — even then two thirds of the aggregate general revenues of the 
 
THE STATE ADMINISTRATION 297 
 
 state and local governments would have been raised by local taxes upon 
 general property. Whether we keep or discard the taxation of personal 
 property, the local assessor will, for many generations, continue to play 
 the principal role in the work of state finance, and upon his probity and 
 efficiency will depend the real success or failure of our fiscal system. 
 
 Now in recent years the statement has frequently been made that sep- 
 aration itself, carrying with it the cessation of state taxation upon general 
 property and the abolition of the state equalization, would prove the most 
 effective means of improving the work of the local assessors. The report 
 of the California Commission on Revenue and Taxation is particularly 
 enthusiastic on this point : 
 
 If there were no state tax to be apportioned among the counties, on the 
 basis of local assessed valuation, there would be no object or inducement to 
 the assessor or to the citizens of the county to obtain a low valuation. In fact, 
 there would be more inducements to the assessor to assess the property as 
 nearly as possible at its full market value in order to avoid inequalities between 
 the citizens among his own constituents, and to protect himself against the 
 charge of favoritism. The probability is, that in order to enjoy the advertising 
 effect of a low tax rate the great inclination would be for the assessor to raise 
 the valuation rather than reduce it. A high tax rate is bad advertisement for 
 a city or a county, and if there is no state tax to be imposed upon the same 
 valuation, the county could have the advantage of the low rate by the simple 
 process of raising the assessed valuation from its present level of about ^o or 
 60 per cent to its full value (pp. 62, 63). 
 
 With this interpretation of the probable effect of separation I find my- 
 self wholly unable to agree. The influences or factors responsible for in- 
 efficient assessment work are so numerous that the desire to evade state 
 taxes is really a negligible consideration. Enumerate these factors : first, 
 the inherent difficulties of the task ; next, the political atmosphere in 
 which the assessor too often works ; then the insufficient time, insuffi- 
 cient pay, desire to evade county taxation, desire to favor personal friends 
 and political associates, — enumerate these factors, and it is plain, with- 
 out reference to experience, that the mere discontinuance of state taxation 
 of general property can work no appreciable improvement. If reference 
 to experience is needed, I can only say that the practical separation 
 accomplished in Wisconsin has not, in the opinion of those best qualified 
 to judge, exerted any appreciable influence upon the character of the 
 assessment work. There is the same old struggle over the county equal- 
 ization, the same old strife between city and county, the same old scram- 
 ble of the individual taxpayer to get from under the local assessment. 
 
 How could it be otherwise ? Of the general property taxes — $706,- 
 660,244 in all — collected in this country in 1902, only ^83,320,134, or 
 1 1.6 per cent, went to the state governments, while $624,340,110, or 
 88.4 per cent, went to the counties, cities, and other local divisions. 
 These figures furnish a good measure of the part which the desire to 
 
298 AMERICAN STATE GOVERNMENT 
 
 escape state taxes plays in demoralizing local assessors. The counties 
 alone collected nearly 75 per cent more under the general-property tax 
 than the states. If the state governments should abandon the $83,320,- 
 184 which they are now (or were in 1902) levying on general property, 
 there would still remain $624,340,110 to be distributed and equalized 
 among the taxpayers of the local divisions. For the state government 
 to abandon this greater task of equalization is a cowardly evasion of its 
 chief duty. 
 
 Another current impression, which I believe to be similarly erroneous, 
 is the idea that if the personal-property tax is abolished, the assessment 
 of real estate will be on the whole equitable and satisfactory. "' The local 
 taxation of real estate," says the recent Special Tax Commission of the 
 state of New York (p. 6), " is now on the whole free from any serious 
 objection." This may be true of New York, but it is certainly not true 
 of most American states, and cannot become true so long as assessors 
 are selected according to prevailing practices, and work under present 
 conditions. During the past four years I have devoted a large part of 
 my time to an intimate study of real-estate assessments, in a state in 
 which the quality of the assessment work is rather above than below the 
 average. During that time I have compared, in the case of several hun- 
 dred thousand parcels of real estate, the true value as determined by 
 actual sale with assessed value as determined by the local assessors. The 
 deliberate conviction, forced upon me by this examination, is that the 
 real-estate assessment is, on the whole, a marked failure from the stand- 
 point of equality. In assessment districts in which the average ratio of 
 assessed to true value is maintained consistently at 65 or 70 per cent, 
 individual parcels will be assessed all the way from 20 to 120 per cent 
 of true value. We talk glibly about the ease with which real estate can 
 be assessed. The truth is, that it is a task which challenges the highest 
 skill of bona fide experts. Think of the speculative uncertainty of the 
 value of farm lands adjoining city suburbs ; the baffling variety of fixed 
 plant and machinery ordinarily assessed as real property ; the problem 
 thrust upon the county assessor by the presence in some small village of 
 one or two manufacturing plants of whose value only an expert of long 
 experience in that particular industry can furnish any estimate; and I 
 think you will agree with me that the problem of assessing real estate 
 efficiently cannot be left to the local assessors, that it demands expert 
 treatment which only the general government, by dealing with such 
 problems in a wholesome way, can afford to provide. 
 
 Finally, I desire to call attention to the fact that separation does not 
 really abolish the state equalization nor prevent the distribution of the 
 burden of state taxation among the various local divisions. What sepa- 
 ration actually does is to substitute for a conscious distribution of state 
 burdens in accordance with the value of property, an unconscious, un- 
 seen, and more or less haphazard distribution, which shifts the burden we 
 
THE STATE ADMINISTRATION 
 
 299 
 
 know not where, and avoids the evil of faulty equalization according to 
 property by flying to other ills we know not of. Like the ostrich in the 
 thunderstorm, we stick our heads in the sand and stoutly maintain that 
 it is not raining. 
 
 Consider the proposition a moment and it wiU cease to be merely 
 fanciful. Ordinarily separation can only be realized by the state's reten- 
 tion of the more important corporation taxes. Some of the corporations 
 involved, or, more accurately, some of the taxable corporate values in- 
 volved, like trust companies in New York, might with equal propriety, in 
 whole or in part, be assigned to the local governments for taxation ; and 
 when they are not so assigned, such local divisions bear pro tanto the 
 burden of supporting the state. And other things being equal, assign- 
 ment to the local divisions should be the rule and not the exception. 
 Unless there is no natural relation between property or business and the 
 expenses of government, there is z. prima facie presumption in favor of 
 local taxation ; and this initial presumption is indefinitely strengthened 
 by the enormous fiscal burdens under which our municipalities are now 
 staggering. For it is probably true, although I speak with hesitancy on 
 this point, that separation as it is ordinarily achieved considerably increases 
 the burden of the city governments, in the sense that the cities would 
 probably receive the major portions of such corporate values if they were 
 localized according to the best principles of apportionment. 
 
 Many persons will commend separation for this very reason, on the 
 ground that the enormous escape of personality in the cities makes the 
 latter fit recipients of increased state taxation. But I believe this conten- 
 tion is unsound. It loses sight of the stupendous social tasks thrust 
 upon our cities by the mere growth of population. City government, to 
 a large extent, is characterized by what the economists call the law of 
 increasing costs. And it loses sight of the stiU more important fact, that 
 shifting a larger load of state taxes upon the city communities is not 
 going to get the extra load on the shoulders of the men who evade the 
 personal-property tax. In short, it fails to improve the distribution of 
 taxes between man and man in the city. 
 
 Moreover, it is not only corporation taxes which the state governments 
 have monopolized. The largest source of state revenue in New York is 
 the liquor license ; there would be no difficulty in assigning that revenue 
 to the appropriate local divisions. The second most productive source of 
 state revenue in Pennsylvania is the tax or group of taxes on personal 
 property. Are its burdens distributed among the local districts, and if so, 
 is the distribution more or less equitable than that which would be ac- 
 complished by a conscious state equalization ? In order to separate the 
 sources of state and local revenue in California, the Commission on Rev- 
 enue and Taxation of that state proposes that the central government 
 shall retain, in addition to the poll, inheritance, and insurance-premium 
 taxes, all taxes upon steam and street railways ; express companies ; car 
 
300 
 
 AMERICAN STATE GOVERNMENT 
 
 companies ; light, heat, and power companies ; telegraph and telephone 
 companies ; the corporate excess of banks ; and all corporate franchises 
 not covered by the above taxes. Unless the presence of property at a 
 place has no connection with the public expenditures of that place, unless 
 the right to exploit the commercial opportunities of that place creates no 
 obligation to pay taxes at that place, unless the Adams Express case is 
 moonshine and the principle of the Ford Franchise Law a delusion, then 
 street-car companies, heating and lighting plants, most banks, and some 
 telephone companies owe most of their fiscal allegiance to fairly well- 
 defined local districts ; and when these local districts are deprived by the 
 state of the power of taxing such corporations, they are saddled with 
 burdens of state taxation which belong elsewhere.^ The unseen equali- 
 zation involved in separation is a very real phenomenon. Certain it is 
 that no state legislature should decide to separate the sources of state and 
 local revenues without clearly understanding that under any scheme the 
 expenses of the state government must be distributed in some way among 
 the various local divisions, nor without satisfying itself that the new dis- 
 tribution of state burdens proposed will be more equitable than the old. 
 
 The practical conclusions which I would derive from the preceding 
 discussion may be formulated in the following statements : 
 
 (i) The state legislature should, in my opinion, without reference to 
 the local divisions and without respect for impossible plans of local fiscal 
 democracy, abolish the personal-property tax and introduce a substitute 
 therefor, if one can be devised. 
 
 (2) If this is impracticable, they should introduce at once some scheme 
 of limited local option which will permit particular districts to abolish that 
 fiscal abomination, the personal-property tax. No plan should be enter- 
 tained, however, which will interfere with central suspension of assess- 
 ments and central control over county equalizations. 
 
 (3) This carefully limited measure of local option should be introduced 
 without reference to the separation of state and local revenues. 
 
 (4) Similarly, the question of what sources of revenue should be re- 
 tained by the state ought to be settled absolutely on its merits without 
 reference to home rule, by a careful study of tax jurisdictions and the 
 connection between property or business and the expenses of local gov- 
 ernment. Doubtful points should be decided in favor of the local juris- 
 dictions, and equitable apportionment should not be strained one inch in 
 order merely to supply the state with revenue enough to get along with- 
 out the levy of direct property taxes. If, after the apportionment of 
 sources between state and local governments, the state has not sufficient 
 special revenue to pay its expenses, let the deficit be raised by a state 
 tax upon real estate, including in real estate the corporate and commercial 
 
 ^ T^^ California plan is cited merely for illustrative purposes, and not with the idea of 
 criticizing the California Commission. Under ordinary circumstances such a division of 
 revenues seems manifestly unjust. 
 
THE STATE ADMINISTRATION 301 
 
 values assigned to the local governments. The evils of an equalization 
 based upon real estate are less than the evils of the unconscious, hap- 
 hazard equalization involved in the retention by the state of a number of 
 revenues which more logically belong to the local divisions. 
 
 (5) Finally, I assert with some confidence, that if the equalization is 
 confined to real estate, and if it is made by an efficient tax commission 
 which takes' its work seriously, it is not a curse but a blessing. In the 
 first place, the payment of some direct state tax stimulates the interest 
 of the citizen in the expenditures of the state government. In the second 
 place, the equalization can be made, with all necessary accuracy, so ac- 
 curately in fact that no fair-minded person, after studying thoroughly the 
 conditions of the problem, will question its substantial accuracy as be- 
 tween county and county. It can be made without prohibitive expense ; 
 it is not necessary, as is sometimes asserted, to reassess every parcel of 
 real estate in the commonwealth to get at the truth. And in gathering 
 the data upon which to base its conclusions, the Tax Commission will 
 obtain indispensable information concerning local assessment work, be- 
 sides securing material absolutely necessary for the proper performance 
 of the work of county equalization. The county equalizations are, in the 
 aggregate, more important than the state equalization ; but at the present 
 time they are woefully inaccurate. The county officials who make these 
 equalizations are, as a rule, destitute of reliable data upon which to base 
 their apportionments, and, like the local assessors, they will never do their 
 work efficiently until they are forced to do so by central supervision and 
 state aid. Reform in these matters must come from without. 
 
 STATE SUPERVISION OF LOCAL FINANCE ^ 
 
 By John A. Fairlie 
 
 Mr. Bryce cites as one of the merits of our federal system of govern- 
 ment, that the separate states can try experiments in legislation and 
 administration, and that other states profit by the experience of those 
 who first introduce new methods. Both of these statements can be sup- 
 ported by important evidence ; but the benefits derived in this way have 
 been much less than they might have been, owing to the lack of means 
 for bringing the results of experiments in one state to the attention of 
 other states. This association can in some measure supply this need, and 
 reduce the enormous waste in experimental legislation, by furnishing a 
 clearing house for the interchange of notes on the work of the various 
 states. And this paper is a small contribution in that direction, calling 
 attention to some significant legislation in a number of states, and show- 
 ing the correlation of measures apparently unconnected. 
 
 1 Reprinted from the Proceedings of the American Political Science Association, Chicago, 
 December 28-30, 1904. 
 
302 AMERICAN STATE GOVERNMENT 
 
 Local administration in the United States during the first half of the 
 nineteenth century developed steadily in the direction of a completely 
 decentralized re'gime. Our constitutional system inevitably made the local 
 authorities subject to the state legislatures, and there was always a large 
 amount of legislative control limiting the scope of local action. But within 
 the limits of powers conferred by the legislature there came to be no 
 administrative supervision over the acts of the local officials. 
 
 During the last half century there has been in evidence a counterwave, 
 making its way slowly and with difficulty, and as yet far from overcom- 
 ing the earlier tide, but nevertheless gaining in force as time goes on. 
 In many branches of administration there have been established state 
 officers and boards with varying powers of inspection and supervision over 
 local officials. This has been the case in the field of health regulation 
 (of which we have just heard), in charity administration, in school man- 
 agement, and in local finance. 
 
 It is with the movement toward §tateadministrative supervision in the 
 last named of these fields that this paperTs' conceriieil: TTis'proposed 
 first to describe what has been accomplished in those states where most 
 has been done, and then to consider the general principles of a wise pol- 
 icy in this matter. What has been done has been mainly in reference to 
 taxation and accounting. What will be said as to a general policy will 
 consider also the question of local indebtedness. 
 
 Taxation 
 
 Local authorities in this country have only such power of taxation as 
 is conferred by the legislatures. And as yet no local authority in this 
 country has been given power to determine for itself what kind of taxes 
 it should levy, but may levy only those taxes specifically authorized by 
 statutes. There is therefore no room for administrative supervision in this 
 direction, since the local authorities have no sphere of independent action. 
 
 As to the rate of taxation local discretion is also closely limited. For 
 some taxes, notab]y.the^tax or license for the sale of liquors, the state law 
 spgcilferthe rate as well ^iTlie nature of the tax ; for the geiieral-property 
 tax more leeway is given. But on the one hand the local authorities are 
 cfdiifpelled by statute to levy taxes to meet certain expenditures, and on 
 the other hand are usually restricted as to the aggregate tax rate ; and 
 between this Scylla and Charybdis a narrow course must often be steered. 
 Under these circumstances again there is little opportunity for adminis- 
 trative supervision, and none has developed. 
 
 When, however, we turn to the assessment of property for the general- 
 property tax, we find a wide field for local discretion, and in recent years 
 significant steps in the direction of administrative supervision. Under 
 the methods prevailing in the early part of the nineteenth century local 
 assessors had complete freedom in the valuation of property, not only for 
 
THE STATE ADMINISTRATION 303 
 
 local taxes but also for state taxes. It was in r eference to_ the state taxes 
 that thejirst step was taken in the direction oTadministrative supervision. 
 Beginning apparently in Ohio in 1825, state boards of equalization have 
 been established in most states, with power to change the aggregate valu- 
 ation ofcounties so as to equalize the apportionment of the state tax. 
 These state'toafd's" of equalization differ widely in their organization, but 
 none of them have the necessary means to perform their work satisfac- 
 torily. In some states they have been composed only of ex-officio mem- 
 bers, elected to other positions, and therefore unable to give much 
 attention to their duties in regard to assessments. In several states the 
 boards are composed of a large number of members, elected in local dis- 
 tricts, who give only a small part of their time to this service, — the 
 extreme case being found in Ohio, where it is composed of forty mem- 
 bers, who meet once in ten years. In a few states, as New York and Cali- 
 fornia, there is a small number of salaried members, giving most of their 
 time to this work and that of direct assessment ; but even in these cases 
 it is impossible for the board to make a complete investigation of the 
 local assessments that would be necessary for an accurate equalization. 
 
 Tax commissioners and economists have discussed at length the fail- 
 ures and defects of these boards of equalization. Moreover, they do not 
 come strictly within the subject of this paper, and have been noted sim- 
 ply as the first stage of supervision which paved the way for later cen- 
 tralizing developments. We may therefore proceed to consider the latter, 
 considering them in the logical rather than in their chronological order. 
 
 It may be noted here that these centralizing tendencies in relation to 
 local taxation have been but one aspect of more general changes in the 
 tax laws. And it may be said that it was only after the states had in- 
 troduced some control over the administration of assessments for state 
 revenue that the importance and complexity of the work of local asses- 
 sors and the need for effective supervision over their local duties was 
 understood. 
 
 Effective state supervision over local assessing officers seems to have 
 Jbeen first established in Indiana. In 1891 there was established in that 
 state a state board of tax commissioners, consisting of two salaried 
 members in addition to the ex-officio members of the former State Board 
 of Equalization : to prescribe all forms of books and blanks used in the 
 assessment and .collection of taxes ; to construe the tax and revenue 
 laws of the state and .give instructions to local officers when requested; 
 to see that all_assessmentsj)f property were made according to law ; and 
 to visit each county in the state at least once a year to hear complaints, 
 collect information, and secure compliance with the law. Besides carrying 
 Olit these marrdatory powers, the state tax commissioners have since 
 1894 annually called the county assessors of the state to an annual 
 conference.^ 
 
 1 Rawles, Centralizing Tendencies in the Administration of Indiana, pp. 273, 276. 
 
304 AMERICAN STATE GOVERNMENT 
 
 In 1896 a board of tax commissioners was established in New York 
 with somewhat less authorit)', including the power to investigate and 
 examine methods of assessment within the state ; to furnish local asses- 
 sors with information to aid them ; and to ascertain whether the local 
 assessors faithfully discharged their duties. 
 
 A Michigan statute of 1S99 provided for a board of tax commission- 
 ers with power : to exercise general supervision over the local assessing 
 officers ; to confer and advise with them as to their duties ; to visit each 
 county in the state once a year, to hear complaints and secure the full 
 assessment of all property in the state. They were also empowered to 
 summon and examine witnesses under oath, to inspect the local assess- 
 ment rolls, to change the assessment, and to add to the rolls property not 
 assessed. 
 
 And a Wisconsin statute of the same year [1899] provided for a tax 
 commissioner with two assistants to have general supervision over the 
 system of taxation throughout the state, with specific authority to require 
 reports from local officers. Two years later added powers were conferred 
 to supervise local assessors and boards of review ; to advise and direct 
 local assessing officers, and to initiate proceedings to enforce the laws 
 against negligent or delinquent officials ; and to visit the counties and in- 
 vestigate the methods of local assessors. Another statute of 190 1 created 
 the new office of county supervisor of assessment, with powers of super- 
 vision over town and city assessors. 
 
 These administrative measures have not solved all of the difficulties 
 connected with the assessment of property for taxation, but in most of 
 these states they have brought about a decided improvement both in 
 methods and results. Statistical results are less striking in New York 
 than in the other states, partly, perhaps, because the powers of the state 
 tax commissioners are less, and partly because of the subsequent develop- 
 ment of special taxes for state revenues, which has apparently caused a 
 relaxation of the supervision of local assessments, now used mainly for 
 local purposes. But in Indiana the assessed valuation of real estate was 
 increased by 44 per cent in one year after the new system went into 
 effect;^ in Michigan the assessed valuation of property has increased 
 over 60 per cent from 1899 to 1903 ;^ and in Wisconsin, where the 
 most thorough system of supervision has been established, local assess- 
 ments more than doubled in three years.' And it may be further noted 
 that in each of these three states the aggregate assessed valuation of 
 property is from 30 to 50 per cent larger than in the neighboring state 
 of Illinois, whose population and wealth is more than double that of the 
 other states, but where there is no efficient system of supervision. 
 
 ' S553i937,744 in 1890, $898,600,323 in 1891 (Rawles, p. 276). 
 
 2 5968,189,097 in 1899, ?i,537,355,738 in 1903. 
 
 ■' 8648,035,848 in 1899, gi,369,8ii,i47 in 1902 (Report Wisconsin Tax Com., 1903, p. 10). 
 
THE STATE ADMINISTRATION 305 
 
 Years before these recent measures for the supervision of local asses- 
 sors there began the policy in many states of a more complete centraliza- 
 tion in the assessment of special classes of property, especially railroads, 
 and more recently other transportation companies, and also telegraph and 
 telephone companies. In fact, only in Rhode Island, New Mexico, and 
 Texas are railroads still assessed only by local authorities. In some cases 
 this centralization of assessment has been part of the movement to secure 
 such taxes for the state treasury ; but in a number of states, notably in 
 Indiana and Illinois since 1872, the state assessment of such property has 
 been used for purposes of local taxation. Usually this centralized state 
 assessment has been established only for the property of corporations 
 extending over a large number of local taxing districts ; but in New York, 
 under Sl law of 1899, the state tax commissioners assess for local taxa- 
 tion the value of special franchises in the public streets, which are for the 
 most part held by local companies ; and in 1901 the Indiana Tax Com- 
 mission was given charge of the assessment of street and electric rail- 
 ways. The New York Franchise Tax Law has been of great value in 
 drawing attention to a large amount of wealth that had previously escaped 
 taxation ; but it may be questioned whether the separation of the fran- 
 chise from other property elements or the complete centralization in the 
 assessment of distinctly local property is necessary or altogether advis- 
 able. In other states the value of such special franchises is now often 
 included (without additional legislation) in the general assessment of the 
 owners in the ordinary course of valuing property for taxation. 
 
 Auditing and Accounting 
 
 State supervision over lo cal accounts is as yet less developed than state 
 supervTsion oyerTocal assessments. This is perhaps not surprising m 
 view of the fact that in most states the accounts of state finances are very 
 far from satisfactory. It is true there have been state auditors and comp- 
 trollers since the establishment of state governments, and in some cases 
 similar officers in colonial times ; but the functions of such officers have 
 often been limited, while primitive methods of bookkeeping established in 
 the days of insigntficant financial transactions have remained in use after 
 expenditures have come to be counted in millions of dollars, and in the 
 face of the development of systematic accounting in private and corpo- 
 rate business. Indeed, the imperfect and inadequate accounting methods 
 of the larger cities have often been somewhat better than those of the 
 states within which the cities are located. 
 
 But within recent years there have been significant measures taken 
 both to establish satisfactory accounting systems for the state finances, 
 and also to establish state supervision over the accounts of local officers. 
 It is only the latter part of this development that can be here considered. 
 
3o6 AMERICAN STATE GOVERNMENT 
 
 Massachusetts seems to have been the first state to have undertaken 
 any effective control over local accounts. And here the supervision has 
 been confined to officers of the counties, which in that state have never 
 developed any vigorous local autonomy. Thus appropriations and tax 
 levies for each county except Suffolk have long been voted by the legis- 
 lature, although this is largely a matter of form and the estimates and 
 proposals of the county commissioners are regularly adopted. In 1879, 
 however, the commissioners of savings banks were authorized and re- 
 quired to inspect the books and accounts of most of the county officers, 
 with power to require uniformity in methods of keeping accounts and 
 financial reports in accordance with prescribed forms. In 1887 the state 
 supervision was made more effective by placing it in the hands of a newly 
 established office of comptroller of county accounts, whose duties included 
 the accounts of some officers previously exempted. 
 
 Valuable results have come from this supervision of county accounts. 
 Irresponsible methods disclosed in the seventies have been corrected, 
 and important reforms have been introduced. Governor Bates two years 
 ago testified to the good that has been devised from the uniform system 
 of accounting established in the counties,^ and indorsed a similar super- 
 vision over municipal accounts. 
 
 One of the youngest states in the Far West was the next to follow up 
 these partial measures of the old Puritan commonwealth, by establishing 
 a comprehensive system of state supervision over local accounts. The 
 constitution of Wyoming, adopted in 1890, provided for the office of 
 state examiner to examine the accounts of certain state officers, clerks of 
 courts, county treasurers, and such other duties as the legislature might 
 prescribe. This was followed by the enactment of statutes which before 
 long placed under the supervision of this officer the accounts of every 
 public officer in the state handling public funds ; authorized him to estab- 
 lish a uniform system of bookkeeping by the state and local officials, and 
 to examine their accounts ; and made provisions for further action in 
 cases of defalcation discovered through his examinations. The same officer 
 has also supervision over banks and other private financial institutions. 
 
 The examination of public accounts is technical and embraces the checking 
 of every item whether great or small, the subsequent footing of the cash ac- 
 counts, and finally their summation. Every account paid is closely examined, 
 the nature of the expense ascertained, the legality of the bill inquired into, and 
 the amount is finally checked to the stub of the warrant issued, and also entered 
 in the proper column of the expense register. Whether or not the officer con- 
 ducted the affairs of his office in conformity with the statute is also made a 
 subject of inquiry. 
 
 The examination made, a written report setting forth the results, accompanied 
 with criticisms, requirements, and recommendations, is prepared and filed with 
 
 1 R. H. Whitten, "Administration in Massachusetts," pp. 149-151 (Columbia University 
 Studies in Political Science, Vol. VIII). Annual message of Governor Bates, January 8, 1903. 
 
THE STATE ADMINISTRATION 307 
 
 the governor and a copy thereof filed with the officer or officers whose ac- 
 counts were the subject of investigation. Should it appear that there had been 
 violations of law in the conduct of any office, the examiner must report thereon, 
 and he has authority to enforce his rulings. In case of defalcation or embez- 
 zlement his findings are absolute, until reversed by the district or other court 
 having jurisdiction. 
 
 In case of the default of any treasurer and the inability of such officer to 
 replace funds illegally used within the time designated by the examiner, the 
 examiner shall at once assume charge and in all respects he becomes the legally 
 constituted treasurer of the state, county, municipality, or school district, as 
 the case may be. 
 
 Another important feature is the meeting of the examiner with the consti- 
 tuted boards authorized to make the annual tax levy. At such time the expense 
 budget for the ensuing year is carefully canvassed and reductions made wher- 
 ever possible. This paves the way for a reduced levy of taxes, and frequently 
 the total levy may be reduced from one fourth to one mill or more, as compared 
 with the previous year.^ 
 
 Striking evidence may be adduced of the benefits resulting from this 
 system of supervision in Wyoming. In 1892 the expenditures of the 
 twelve counties in the state were $412,000, while only two counties 
 were on an approximate cash basis, the others generally allowing their 
 expenses to exceed their revenues and issuing illegal warrants to pay 
 bills. In 1899, with thirteen counties, the total expenditures had been 
 reduced to $295,000, and ev»ry county was on a cash basis, with a sur- 
 plus at the end of the year.^ Several governors of the state have spe- 
 cially commended the work of the state examiner in their messages to 
 the state legislature." 
 
 Other states near Wyoming soon followed its example to some extent. 
 Montana and North Dakota have each created the office of state exam- 
 iner, with power to examine books and prescribe accounting methods in 
 county offices, as well as in state institutions. South Dakota, Nebraska, 
 and Kansas have provided a less effective supervision, — in the two first 
 named through the state auditor ; in the last named through a state ac- 
 countant.^ More recently (in 1903) Nevada has established a more 
 intensive system of control. A state board of revenue must approve the 
 debts of local governments, prescribe the forms for financial reports to 
 the state comptroller, and employ an examiner to inspect the accounts 
 and records.^ And in the same year the extreme southern state of 
 Florida created the office of state auditor, whose chief duty is to pre- 
 scribe the form of county accounts and see by inspection that they are 
 properly kept.' 
 
 1 H. B. Henderson, Report of Conference on Good City Government, National Municipal 
 League, 1900, pp. 251-252. 
 
 2Ibid. p. 251. . 
 
 8 Governor William A. Richards in 1899, and D. F. Richards m 1903. 
 
 4 Nebraska, Laws of 1893, Chapter 15 ; Kansas, Laws of 1895, Chapter 247. 
 
 6 Laws of 1903, Chapters 78, 123. " Laws of 1903, Chapters 14, 71. 
 
3o8 AMERICAN STATE GOVERNMENT 
 
 In the state of New York something has been accomplished in the 
 same direction. Beginning in 1892, the state comptroller has been given 
 power to audit certain accounts of county treasurers, including the court 
 and trust funds and the accounts for the inheritance tax ; while the state 
 excise commissioner has similar authority over the accounts for the liquor 
 tax. The introduction of the comptroller's audit disclosed inextricable 
 confusion in the various accounts of county treasurers, and that within a 
 few years before there had been defalcations or shortages in thirty-three 
 of the sixt)' counties in the state. A uniform system of bookkeeping has 
 now been introduced for these special funds, which, with the regular 
 audit, discovers and often prevents deficits and defalcations.' 
 
 In 1903 a statute was enacted requiring all cities in the state with less 
 than 250,000 population to make uniform financial reports to the Secre- 
 tary of State. But as no provision was made for uniformity of accounts 
 or for an examination or audit of the books of the city officers, nothing 
 has as yet been accomplished under this provision. 
 
 Until two years ago this movement towards state supervision of local 
 accounts was confined to the less important states and to such partial 
 measures in the larger states as have been noted. But in 1902 the state 
 of Ohio enacted the most important law on the subject yet adopted. 
 This provided for a uniform system of accounting, auditing, and report- 
 ' ing for every public office in that state, under the supervision of a newly 
 i established bureau of inspection in the office of the auditor of state. The 
 , act requires separate accounts for every appropriation or fund, and for 
 every department, institution, public improvement, or public-service indus- 
 ' try ; provides for full financial reports to the auditor of state ; and au- 
 thorizes annual examinations of the finances of all public offices, with power 
 to the examiners to subpoena witnesses and examine them under oath. 
 
 To carry out the provisions of the act three deputies and a clerk were 
 appointed by the auditor of state, all of whom were former county auditors 
 and experienced in local methods. These, with the assistance of expert 
 accountants who had given special attention to municipal accounting, and 
 after a thorough investigation of existing practices, prepared complete 
 systems of accounting which have been installed throughout the state in 
 the offices of county auditors and treasurers, city auditors and treasurers, 
 village clerks and treasurers, school-district clerks and treasurers, and 
 township clerks and treasurers. The first examinations of the accounts 
 are now being made by the examiners of the bureau, and from their re- 
 ports comparative statistics of local finances covering the whole state of 
 Ohio will he published. 
 
 This brief description of these various measures must bring into clearer 
 light their significance and the tendency which they illustrate. No one 
 considered by itself, nor even all that has been done in any single state, 
 
 1 Fairlie" Centralization of Administration in New York State," pp. 185-186 (Columbia 
 University Studies m Political Science, Vol. IX). 
 
THE STATE ADMINISTRATION 309 
 
 may seem of very large importance ; but when the detached and appar- 
 ently disconnected pieces have been brought together, it must be evident 
 that in the aggregate they indicate a distinct movement towards state su- 
 pervision of local finance. We may therefore inquire into the rationale of 
 such a movement, and consider to what extent it should be encouraged. 
 
 In some respects the movement may seem in conflict with general 
 principles which are still declared to be fundamental in our American 
 system of government. It must be admitted at least that it is not consist- 
 ent with the most extreme demands for local autonomy, and that state 
 control is not so clearly justified in this field by a general state interest 
 as is the case in state supervision of health administration, schools, or the 
 local management of state finances. 
 
 If, however, instead of unreasoned ideas, we apply the principles of 
 such political thinkers as John Stuart Mill and Henry Sidgwick, it will 
 be seen that this movement is in entire accord with a rational political 
 philosophy. These writers recognize fully the advantages of locally elected 
 authorities for matters of local interest, as well as for the sake of the 
 political education of the people ; but they also point out the advantages 
 of central supervision, not only where the interests of the larger govern- 
 mental units are directly concerned, but also because of the more com- 
 plete information and the larger degree of technical efficiency which the 
 higher government can demand.^ 
 
 Both of these latter factors support state supervision in the two 
 branches of local finance that have been noted. The assessment of prop- 
 erty with any approach to equality of treatment calls for a high degree 
 of expert skill and the comparison of conditions over a wide area. A 
 uniform system of accounting is essential for accurate information on 
 public expenditures, and for the comparison of outlay with returns in the 
 many branches of local administration. And state control over the ac- 
 counts of local public authorities is certainly as important as the control 
 that has been established in most states over the accounts of private cor- 
 porations, such as railroads, banks, and insurance companies. It may 
 also be noted that the state supervision established over local finance 
 does not restrict local management where local control is essential, — in 
 determining the amount and distribution of expenditures. 
 
 In conclusion, attention may be called to another branch of local finance 
 where a system of state admrnistrattv^supefvisToh is urgently needed, — ; 
 over the loans and debts'bFlocal authorities. The need for some control 
 here is already recognized in the Ctrtistitnticmal and statutory-debt limits 
 established. But these arbitrary limits do not and cannot adjust them- 
 selves to the varying needs and conditions of different local communities. 
 There is a great difference between a debt incurred for water works, 
 which will be met by the revenue from the undertaking, and a debt for 
 parks, which must be paid from general taxation, and a debt for street 
 
 1 Mill, Representative Government, chap. xv. Sidgwick, Elements of Politics, chap. xxv. 
 
3IO 
 
 AMERICAN STATE GOVERNMENT 
 
 paving that may be worn out in ten 3'ears. To decide whether additional 
 debt may be safely incurred, can be determined wisely only after a care- 
 ful examination of a complex financial situation, involving a study not 
 merely of the aggregate amount of existing debt, but also of the provi- 
 sions for meeting this debt and of the resources of the local government 
 concerned. Such an examination requires expert technical knowledge, 
 which is entirely absent from the present crude legislative limitations, and 
 can only be supplied by a permanent administrative authority. 
 
 T.\XATION OF THE PROPERTY OF RAILWAY 
 CORPORATIONS ' 
 
 By Governor La Follette 
 
 In the contest for equal and just taxation prior to 1899 it was well 
 understood that the public-service corporations were bearing much less 
 than a fair share of the tax burden. The legislature of that year assem- 
 bled under the strongest obligations to the people of this state to equalize 
 taxation. A movement was made toward the discharge of that obligation 
 by passing through the assembly a bill increasing the license fee upon the 
 gross earnings of the railroads from 4 to 5 per cent. While this would 
 have fallen far short of the amount which should be borne by the rail- 
 road companies, it would have proven a very substantial increase. This 
 bill was beaten in the Senate. It was at this period in the contest that 
 the bill was brought forward creating the Tax Commission. The bill re- 
 ceived the support of the opponents as well as advocates of more equal 
 taxation, including lobby agents and railway-company attorneys. To them 
 it presented the relief of postponement. 
 
 The passage of the measure was urged as a great public necessity. 
 It was maintained that the members of the legislature could not give the 
 subject of taxation the time and attention which its importance required ; 
 that it demanded men trained for the task, clothed with power and author- 
 ity to prosecute the fullest investigation, enabling them to place before the 
 legislature the ripe work of their research for its guidance and direction. 
 
 While it was then well understood that the increase in railroad taxation 
 sought to be enacted at that session was much less than the amount 
 fairly due from the companies, nevertheless the creation of the commis- 
 sion was accepted in good faith upon the promise made by the represent- 
 atives of the railroad companies that the results of the work of the 
 commission would be accepted and acquiesced in. Able, conscientious, 
 and conservative men were appointed upon the Tax Commission, and 
 prosecuted their investigation for a period of nearly two years, making 
 their first report to the legislature which assembled January 9, 1901. That 
 
 1 From a message to the Wisconsin legislature, January, 1903. 
 
THE STATE ADMINISTRATION 311 
 
 legislature had been chosen by the people of Wisconsin with the plain un- 
 derstanding that they would receive the report of the Tax Commission 
 and carry out its recommendations equalizing the burdens of taxation. 
 
 The report presented by that commission exhibited original, intelligent 
 research, able reasoning, and well-considered conclusions. It left nothing 
 to doubt or conjecture, but' plainly pointed the way for the legislature. 
 It made it clear that if the railroads were taxed at their actual value 
 at the same rate as other taxable property of the state, they would pay 
 a million dollars a year more than they were then paying. 
 
 The creation of the Tax Commission was a deliberate avowal on the 
 part of the legislators of their inability to deal with the complex subject 
 of taxation without assistance. There was well-grounded reason for this. 
 Putting aside all question of the intricate character of the subject, the 
 brief period covering the legislative session, the confusion arising from 
 the multiplicity of legislative duties, the many interruptions and distrac- 
 tions to which they are inevitably subjected, leave little time for that 
 research and deliberation essential to wise and sound legislative action 
 in an involved matter of such scope as taxation ; hence it was the more 
 remarkable that legislators, some of whom had not previously given the 
 subject any study whatever, and nearly all of whom had examined it but 
 superficially, should feel prepared to assume the responsibility of reject- 
 ing the conclusions of the Tax Commission, arrived at after long, patient, 
 and arduous investigation. 
 
 Such was, however, the case. After weeks and months of delay, 
 during which lobby agents and representatives of the railway companies 
 were busy, the recommendations of the Tax Commission were rejected 
 and the bills prepared by them and submitted to the legislature, in accord- 
 ance with law, were defeated in the assembly, action upon the same 
 having been delayed in the Senate until after the measures proposed by 
 the Tax Commission had been beaten in the assembly. 
 
 Again the question of equalizing the burdens of taxation has been sub- 
 mitted to the people of Wisconsin, and your honorable body assembles 
 with obligations' renewed for the third time, and with responsibilities 
 increased, finally to accord justice to the taxpayers of this commonwealth. 
 
 Upon the executive, under the constitution and laws, rests the respon- 
 sibility of presenting to you such reasons as he may offer why legislation 
 should be enacted. This he may do from time to time during your delib- 
 erations. Further than this he is powerless, excepting the legislature, 
 acting upon those suggestions, or upon their own initiative, pass the 
 measures and present them for his approval. After proposing or recom- 
 mending the enactment of the measure to the legislature, the responsibil- 
 ity of the executive, as well as his authority, ceases. Unless action be 
 taken by the legislature the measure fails. 
 
 You will soon be in possession of the report of the Tax Commission. 
 It represents nearly four years of labor by the able members of that body 
 
312 AMERICAN STATE GOVERNMENT 
 
 without bias or prejudice, prompted solely by the desire conscientiously 
 to discharge high official obligation. I am confident you will place that re- 
 liance upon the work of this commission that the public has already sealed 
 with its approval. If the inauguration of the investigation of this subject 
 by the commission was in good faith, then in good faith those for whose 
 guidance its work was planned are bound to give heed to its findings and 
 recommendations. 
 
 In determining that we should abandon the license-fee system of rail- 
 road taxation in Wisconsin, the commission will simply reaffirm the 
 declaration made two years ago, that the license-fee system would be 
 "' superseded by a more scientific method " of railway taxation. 
 
 Of the license-fee system upon gross earnings a high authority says : 
 
 The administration of such taxes is comparatively simple and certain, but 
 they have no other justification. They are unequal and arbitrary, the rate im- 
 posed being necessarily fixed by guesswork or intrigue. In the case of public- 
 service corporations there are but two bases of taxation that can be plausibly 
 defended, — net income and actual value. When both these are abandoned, 
 chaos results. These arbitrary taxes, though unequal as between corporations 
 of the same class, have usually been favored by corporate interests because of 
 their definiteness and because the amount paid is usually much below their 
 proportionate share of the burden of government as measured by net income 
 or the actual value of their property. 
 
 While the administration or collection of such taxes is comparatively 
 simple and certain, it is not less certain that the state is entirely at the 
 mercy of the corporation respecting the amount of gross earnings re- 
 ported, upon which the license fee is computed, and it may be safely 
 assumed that the corporation never wrongs itself in making such report. 
 
 The license-fee system, if fairly adjusted as between railroads and 
 other taxable property of the state to-day upon an agreed percentage, 
 would furnish no assurance of a fair division of tax burden a year hence. 
 Conditions arise from time to time in the commonwealth requiring an 
 increase in the rate upon taxable property. At such times property taxed 
 under the ad valorem system must bear all of the increased burden, while 
 the percentage upon which the license fee is based remains the same. 
 No valid reason can be assigned why railroad property, remunerative as 
 it is, — its value increasing with the development and growth of the state, 
 — should not bear its relative proportion of whatever befalls other prop- 
 erty by reason of increases in taxation to meet emergencies and exigen- 
 cies that come in the ordinary course of human events. 
 
 Legislative appropriations from year to year are increased as the ex- 
 pansion and development of the state creates proper and unanswerable 
 demands therefor. Public buildings for properly housing and caring for 
 the state's dependent, its criminal classes, for its schools, and courts, and 
 university, must be erected, renewed, and enlarged repeatedly. It is but 
 just that raikoad property should bear its share of such appropriations. 
 
THE STATE ADMINISTRATION 313 
 
 The railroad companies under the license-fee system have no interest 
 and no concern respecting the money appropriated by the legislature. It 
 is a fact within the knowledge of every legislator of experience that the 
 influence of the railroad lobby is often employed to pass legislation result- 
 ing in an increase of general taxes in exchange for the votes of those 
 interested in such appropriations to defeat other legislation obnoxious to 
 the railroads. Doubtless millions of dollars have been unnecessarily 
 expended through such combinations. This could not have occurred if 
 the railroads had been taxed under the ad valorem system and possessed 
 the same general interest that other taxpayers have in keeping appropri- 
 ations within reasonable limits. 
 
 But in addition to all of the other objections to the license-fee system, 
 when it is remembered that they are permitted in effect to fix the amount 
 of the taxes which they will pay, without any practical check or super- 
 vision by the state, no excuse or justification can be given for continuing 
 a plan of taxation so unjust to other taxpayers of the state. Investiga- 
 tions which have been conducted by the Interstate Commerce Commis- 
 sion in the courts leave no room to doubt that millions of dollars are paid 
 back to shippers in rebates, under arrangements deemed advantageous, 
 directly or indirectly, to both the railroads and the favored shippers. That 
 these rebates in Wisconsin alone amount to vast sums of money annually 
 is beyond dispute. Not one dollar of this sum rebated to shippers, and 
 properly a part of the gross earnings of railroad companies, is reported to 
 the state. That a valid claim exists against the railroad companies, for 
 the amounts so withheld from their reported earnings, does not admit of 
 question, whatever difficulties he in the way of making proof of the same. 
 I do not believe that you will fail to follow the recommendations of the 
 Tax Commission and abandon a system of taxation so obnoxious to 
 every principle of fairness to those who must maintain government. 
 
 The taxation of railroad property, as of all other property, upon its 
 actual value, can work no injustice to any one. The effort, by those 
 interested in preventing the adoption of the ad valorem system for rail- 
 roads, to make it appear that the value of railroad property cannot be 
 ascertained, is not entitled to serious consideration. That which has a 
 sufifiicient physical existence to stand as security for the loan of vast 
 sums of money ; that which is represented in the markets of the world 
 as among tRe most readily salable property ; that which is productive 
 in its earning capacity of an enormous annual income, has all of the 
 essentials in certainty and definiteness that property requires for the 
 purposes of taxation. 
 
 In ascertaining the value of railroad property the average value of 
 its bonds and stocks in the market would be an element to be taken 
 into consideration. If it were taken as the sole basis for valuation, the 
 railroad companies ought not to be heard to complain of its unfairness 
 to them, because they levy such a tax upon the public in the form of 
 
314 
 
 AMERICAN STATE GOVERNMENT 
 
 transportation rates as will produce a certain income computed upon the 
 market \-alue of their stocks and bonds, in addition to exacting enough 
 more to maintain the roadbed, rolling stock, depots, and grounds, in 
 good condition, and provide an increasing surplus ; but the average value 
 of the bonds and stocks should not be taken as the sole method of ascer- 
 taining the value of railroad properties for taxation. The State Board of 
 Assessment would appraise the actual value of the tangible physical 
 property of railways. In addition to this, the value of the franchise, into 
 which there enters many elements embraced in the corporate power and 
 privileges with which railroads are clothed, must be reckoned. Supple- 
 menting all these, the earning capacity of the property would constitute 
 a most important factor. 
 
 As stated by the Supreme Court of the United States upon this sub- 
 ject, " Business men buy and pay for that which is of value in its power 
 to produce income." The earning power of corporate property, deter- 
 mined under the rigid system of accounting which admits of no juggling 
 of the figures in operating, equipment, construction, and like elements 
 of the accounting system, will equip a board to ascertain the net income 
 which, capitalized at the average interest rate, would enable those charged 
 with official responsibility to arrive at a just determination of the taxes 
 which the railroads should pay. 
 
 Into the formation of the judgment of every assessor in fixing prop- 
 erty values there enters many elements. The location, the quality, the 
 appearance, the relation of the property to adjoining properties, the earn- 
 ing capacity, the expense of maintenance and operation, are some of the 
 complex elements which enter into the formation of the assessor's judg- 
 ment of the value of every piece of property assessed against individual 
 taxpayers. So with the State Board of Assessment, respecting the prop- 
 erty of railroads and other public-service corporations, there are many 
 elements to be considered, all of which will be given due weight by the 
 board charged with the responsibility of doing justice between these cor- 
 porations and individual taxpayers to the state. 
 
 Acting along these lines, after a protracted contest, the state of Michi- 
 gan adopted the ad valorem system of taxing railroads and other public- 
 service corporations, established a state board of assessment, ascertained 
 the value of railroad property, applied to it the same rule of taxation 
 which is applied to the property of individuals, resulting in an increase 
 in the taxes on railroad property of that state of thirteen hundred and 
 sixty-six thousand, three hundred twenty-four dollars and thirty-eight 
 cents ($1,366,324.38). 
 
 The taxpayers of this commonwealth were very patient while investi- 
 gation was being prosecuted. They have shown great forbearance with 
 delays and postponements heretofore. They have sustained wrong and 
 injury which can never be repaired. They have carried the burden of 
 others in addition to their own, for which they will never be compensated. 
 
THE STATE ADMINISTRATION 315 
 
 They have paid out of their savings the taxes of the public-service cor- 
 porations for many years. It is their due, it is due to the state, that these 
 wrongs should end here and now. The past cannot be recalled. The 
 wrongs inflicted cannot be repaired, but there is lodged with this legisla- 
 ture the full authority, and upon it rests the binding obligation, to deal 
 justly with these corporations and with the people. This duty is not one 
 which may be shirked or evaded or postponed. 
 
 Efforts may be further continued to obstruct the course of justice. 
 These failing, as a last resort efforts will be made to compromise. There 
 has been given into our hands a trust to discharge. Difference of opinion 
 may arise in the performance of public duty upon questions of policy. 
 This is not a question of policy. The railroad companies of this state 
 owe the state more than a million dollars a year. For many years, be- 
 cause of the postponement or defeat of legislation requiring them to pay 
 their proportionate share of the taxes, the other taxpayers of Wisconsin 
 have paid for them a million dollars annually. The case has been tried, 
 the hearing has been full. Judgment has been given again and again. 
 Pledges have been made by political parties, and repeated by candidates 
 for office, over and over again. The question is not an open one. There 
 is no opportunity for misunderstanding. There is no room for specula- 
 tion. The truth is ascertained. The truth is known. It is lodged in the 
 public mind to stay. The people want a million dollars a year, because 
 that is the sum owing. They are not to be wheedled by any soft phrases 
 about " conservatism." There is nothing to compromise. Equal and just 
 taxation is a fundamental principle of republican government. The 
 amount due as taxes from railroads and other public-service corporations 
 should be paid, and paid in full, and I am confident the legislation to 
 secure that payment will be promptly enacted. 
 
 I recommend that the bill formulated by the Tax Commission in ac- 
 cordance with their report, pursuant to the law creating that body, and 
 presented by them to the legislature, be passed promptly ; and that there 
 may be no uncertainty I now say that a measure creating a state board 
 of assessment to determine the value of railroad property, and applying 
 to railroad companies and other public-service corporations the same rate 
 of taxation which other taxable property pays in this state, will be 
 promptly approved by the executive, if given the opportunity. 
 
 That the Tax Commission should constitute a board of assessment, in 
 whole or in part, I have no hesitation in recommending. The terms of the 
 members of the board should however be so changed as to expire at 
 intervals of two or more years, to the end that there should be at all times 
 men upon the board trained in its work. The term of service should be 
 from six to nine years, which will enable the commission to acquire such 
 experience as to become more and more proficient in their duties of valu- 
 ing corporate property and mastering all the complications of corporate 
 accounting. But in determining the value of railroad property and the 
 
3i6 AMERICAN STATE GOVERNMENT 
 
 property of other public-service corporations, it will be found necessary to 
 place at the command of the board the expert knowledge of a competent 
 civil engineer and a competent accountant. Men skilled in these lines of 
 work command good pay. The railroad companies employ the best talent 
 available in each of these departments. The state will be placed at a great 
 disadvantage in assessing and collecting taxes from public-service corpo- 
 rations unless it so equips its Board of Assessment and Taxation as to 
 meet these corporations on equal terms with equal talent. 
 
 There are two methods, either of which would equip the board for 
 this important work. They might be authorized to employ such experts 
 in their discretion and pay them a reasonable salary. There would, how- 
 ever, always be the possibility of the legislature failing to provide an 
 appropriation sufficiently adequate to secure this assistance for the board. 
 
 This important work might be crippled under the plea of economy, 
 which the corporations would adroitly urge through their many agencies. 
 This danger could be obviated by increasing the membership of the com- 
 mission or Board of Assessment, adding thereto a civil engineer and an 
 expert accountant. In undertaking and carrying forward this important 
 work there would be found constant employment for such a commission. 
 The increase in expense, arising from the enlargement of the board by 
 two additional members, would be trifling indeed compared with the in- 
 creased revenues of the state, resulting from the proportionate taxation 
 of the property of these great corporations at full value. The Board of 
 State Tax Commissioners, acting as the State Board of Assessment for 
 appraising and assessing the property of public-service corporations, is 
 certain to become the most important body in our entire tax system. 
 We are therefore bound to exercise the greatest care in establishing it 
 upon a safe and permanent foundation. While in this, as in all things 
 pertaining to the public service, extravagance in expenditure must not 
 be permitted, yet there can be no more certain method of squandering 
 the public money than in mistaking cheapness in the ability of public 
 servants for economy in the public service. 
 
 In establishing a state tax commission charged with the responsibility 
 of exacting from these corporations the immense sums of money which 
 they have successfully and wrongfully withheld from the state, we are 
 imposing upon them a task hedged about and complicated with difficul- 
 ties of every conceivable kind and nature. Their course will be ob- 
 structed, their work will be subjected to the most searching analysis, it 
 will be tested in courts, and the state will be shortsighted and wasteful 
 of both time and money, if it fails to afford such commission the very 
 best equipment possible for the great undertaking committed to it. 
 
 Wisconsin can profit by the experience of other states, some of which 
 assess the property of corporations through a commission or board com- 
 posed of state officers. Such boards or commissions bring to their duties, 
 as a rule, no special training or aptness for the work, and can give but a 
 
THE STATE ADMINISTRATION 
 
 317 
 
 small portion of their time, since their regular duties as state officers must 
 take precedence ; consequently they are but ill prepared to confront the 
 able accountants and engineering experts employed by the corporations. 
 
 There is, however, one merit in the system of assessing corporate prop- 
 erty through commissions of state boards composed of state officers, and 
 that is, they are directly responsible to the people and must, with each 
 recurring election, defend their acts as commissioners before the voters. 
 
 In other states the boards are appointed directly by the executive with 
 the concurrence of the higher branch of the legislature. Where the terms 
 of service are long, the commissioners or members of the Board of 
 Assessment become expert in their duties, even though they had little 
 technical knowledge when appointed ; and this method is preferable, but 
 it is open to the objection that the corporations may exert an influence 
 in the appointments and confirmation of them from time to time, and 
 thus influence the appraisal of their own property. 
 
 It has been suggested by an eminent writer on this subject that : 
 
 The safest plan for organizing a state commission is a combination of ex 
 officio and appointive officers with equal voting powers. Three appointive 
 members with terras of six or nine years, one of whom is appointed from two 
 to three years, will have a sufficient term of office to become expert in these 
 duties, and the appointments will be so spread out that the character of the 
 entire board cannot be changed at a single election of governor. 
 
 Two ex officio members, the most important officials of the state, namely 
 the governor and auditor of state (or attorney-general), should be associated 
 with these appointive members. These officers are responsible to the voters. 
 The appointed members should give their entire time to the work of appraisal, 
 but no assessment should be valid until passed upon by the entire board of 
 five members. 
 
 A board constituted in this way would combine the elements of expertness 
 and public responsibility. The appointed members and the ex officio members 
 would be a check upon each other. In the ups and downs of politics, when 
 popular interest lags or is occupied with other great questions, at which time 
 the ever-watchful corporations may be expected to slip their tools on to the 
 board, the permanent and balanced character of the board would prevent them 
 from getting control until such time as the attention of the people is again 
 aroused. At the same time the board as thus constituted would deal fairly and 
 honestiy with all corporations, for their investors also are a part of the people, 
 and they will be represented before the board by their tax experts. 
 
 While the establishment of a board of assessment for the purposes of 
 assessing the property of public-service corporations upon the ad valorem 
 basis will be resisted by the corporations, yet when adopted by the legis- 
 lature their power and influence will be exerted to secure from time to 
 time the appointment of such men to the board as will be most favorable 
 to their interests. This it is the part of wisdom for us to understand now, 
 and provide against in so far as possible. Indeed, the representative of 
 one of the leading public-service corporations went somewhat farther than 
 
3i8 AMERICAN STATE GOVERNMENT 
 
 this during the last legislative session when he declared that : " The ad 
 valorem system is one which is more liable to be affected by the weak- 
 nesses and evil elements of human nature, and is therefore open to more 
 criticism, and more justly, than the license-fee system." 
 
 The question of railway taxation is a practical one, and it is expected 
 that as public officials we will deal with it in a practical way. As men of 
 experience, some of you men experienced in legislation, you will under- 
 stand, as the public likewise understands, the opposition which has been 
 made by the railroad companies to any increase in their taxes. It is a 
 matter of common knowledge among those who have encountered the 
 railroad lobby that this opposition was so determined as to announce 
 the declared purpose of the railway companies to increase their freight 
 rates enough to offset any increase in taxation. The ease with which 
 this menace might be enforced can very readily be seen. An increase 
 in the fraction of a per cent in freight rates, or a slight readjustment 
 of the classifications, would enable railroads to collect from their 
 patrons in Wisconsin more than enough to balance any increase in 
 their taxes. 
 
 Indeed, since legislation has been pending in this state to require rail- 
 roads to pay their proportionate share of taxation, freight rates for Wis- 
 consin have been increased, indicating a forehanded determination to be 
 prepared against legislation to equalize taxation. 
 
 It becomes apparent at once that legislation compelling the railroads 
 and other public-service corporations to pay their proportionate share of 
 the taxes will fail utterly in its object, unless it be supplemented with 
 legislation protecting the public against increased transportation charges. 
 
 TENDENCIES IN RAILWAY TAXATION' 
 
 By Henry C. Adams 
 
 In searching for the trend of railway taxation it would be an error to 
 assume the existence of a separate and independent system of corpo- 
 rate taxes. This assumption has been frequently made by writers upon 
 American finance, but in so doing they fail to distinguish between the 
 underlying principles of a system of taxation, on the one hand, and the 
 machinery for administering that system, on the other. So far as methods 
 of assessment and collection are concerned, it is true that railway corpo- 
 rations are placed in a class by themselves, but it is not true, speaking 
 generally, that the theory of public contributions applied to them differs 
 from the theory which is applied to other classes of property. That sys- 
 tem of taxation, known as the general-property tax, is as strong to-day 
 
 1 A paper read before a joint meeting of the American Political Science Association and 
 the American Economic Association at their annual meeting, Chicago University, December 
 30, 1904. Reprinted by permission. 
 
THE STATE ADMINISTRATION 319 
 
 as it ever was in the history of our country ; indeed it is stronger, if we 
 are to judge from the changes that have taken place in the laws of the 
 states during the past twelve years. 
 
 Distinction in Taxation between Railway and Other Property 
 
 A glance at the laws of railway taxation in the several states and terri- 
 tories gives ample support to the claim that these laws fail to introduce 
 any new principle into the established system of local taxation. Including 
 the District of Columbia, and excluding Alaska from the list, local govern- 
 ment in the United States is represented by fifty states and territories. 
 Of this number only two, Rhode Island and the District of Columbia, 
 make no distinction in the matter of taxation between railway property 
 and other property ; that is to say, these political divisions fail to provide 
 special methods even for the assessment and collection of railway taxes. 
 
 Thirty-nine States make Railway Property, Personal and 
 Real, the Basis of Taxation 
 
 There next comes a list of thirty-nine states which make the general 
 property of the railways, including both personal and real, the basis of 
 taxation, but which provide machinery for assessment of railway property 
 different from that employed in the assessment of general property. The 
 character of this administrative machinery is of no importance as bear- 
 ing upon the question under consideration. Nor does the fact that some 
 of these states make an assignment of railway assessments to the minor 
 civil divisions through which the railway runs, while others distribute the 
 money collected, and still others keep this money for state expenditures, 
 bear upon the problem in hand. The important fact is that the system 
 of local taxation in these thirty-nine states expects railway property to pay 
 for the support of government an amount in proportion to the value of 
 the property, the same as in the case of general property. These thirty- 
 nine states, like the two already mentioned, making forty-one in all, are 
 properly included within the jurisdiction of the general-property tax. 
 
 With the Exception of Three States, Railways are taxed 
 ACCORDING to Value 
 
 There are five states — Delaware, Massachusetts, New York, Pennsyl- 
 vania, and Kentucky — which tax railway property according to its value, 
 but assess the tax to the value of stocks and bonds rather than to the 
 value of real and personal property. In all cases, with the exception of 
 Connecticut, this tax upon stocks and bonds is supplemented by other 
 forms of taxation. It is the ad valorem and not the specific tax that 
 gives character to their taxing systems. It thus appears that forty-seven 
 
320 
 
 AMERICAN STATE GOVERNMENT 
 
 out of the fifty states and territories aim to tax railways in proportion to 
 their value. The remaining states — Maine, Maryland, and Minnesota — 
 have adopted a system of specific taxes, making gross earnings the measure 
 of the duty of railways to pay for the support of government. Two 
 states — Vermont and South Dakota — give the railways the choice be- 
 tween paying upon an ad valorem or a specific basis. The states of Ohio 
 and Texas also tax railways upon the basis of gross earnings, but make 
 this as a supplementary or additional contribution. Five states adopt the 
 essentially pernicious method of supporting their railroad commission by 
 means of a special tax on earnings. Other minor differences might be 
 mentioned, but they would not affect the conclusion that, with the excep- 
 tion of Maine, Maryland, and Minnesota, railways are taxed according 
 to the value of their property, and that both common-law provisions and 
 constitutional rules relative to equity and justice in taxation require that 
 they pay a rate equal to the rate of other property upon their cash or par 
 assessment. 
 
 The Unit Rule is not a New Principle 
 
 It has sometimes been claimed that the application of the unit rule 
 in the valuation of railway property, a rule which has received the ap- 
 proval of the courts, amounts to the recognition of a new principle of 
 taxation. With this opinion I cannot agree. The unit rule is nothing 
 more than the application of an old rule of law that property must be 
 valued according to the use to which it is put. It is but the recognition 
 of the fact that the commercial value of railway property depends upon its 
 continuity from county to county and from state to state. It is the logical 
 result of the expansion of commercial properties beyond the limits of 
 local taxing jurisdiction. The unit rule of assessment is in perfect har- 
 mony with the assumption that value is commercially homogeneous, and 
 implies no criticism upon the underlying theory of the general property 
 tax. It, like the laws of the states passed in review, pertains to the appli- 
 cation of the general property tax to interstate properties, and does not 
 suggest, at least in any direct manner, that the value of a railway may 
 differ both socially and industrially from the value of a factory, or that 
 the value crystallized in the property of a railway may itself be subject 
 to analysis and classification according to its character or the source from 
 which it arises. 
 
 Not only does the recognition of the unit rule of valuation in itself 
 imply the development of no new principle in the taxation of corporations, 
 but its assertion by the courts permits the application of the general- 
 property tax to properties which have previously escaped their equitable 
 share of public burdens. This certainly is true of the decisions in the 
 Ohio express cases, which enable the state of Ohio, to collect taxes upon 
 a valuation in excess of the value of the physical property used by the 
 express companies within the state. The laws by which sleeping-car 
 
THE STATE ADMINISTRATION 321 
 
 companies and other persons or corporations owning rolling stocks are 
 taxed, furnish many illustrations of an effort on the part of legislators to 
 discover some other method of levying contributions than upon the basis 
 of valuation. This was necessary before the deduction of the unit rule. 
 Since the decision in the Ohio express cases, however, legislators are 
 provided a means by which such persons or corporations may be taxed 
 upon a value in excess of the value represented by their physical property 
 within the state ; and I think we may confidently expect a revision of 
 the laws for taxing express companies, sleeping-car companies, and other 
 companies owning transportation facilities, which will substitute the ad 
 valorem for the specific rule in taxation. Georgia has already revised her 
 method of taxing sleeping-car companies. From whatever point of view 
 we look at the matter, the unit rule of valuation, so far from implying 
 the disintegration of the general-property tax as applied to corporations, 
 has given that scheme of taxation a broader field for its application. 
 
 Recognition of a Franchise Value 
 
 The courts have however taken one step which may prove to be a 
 point of departure for the development of new principles in the taxation 
 of railway corporations. I refer to their recognition of a franchise value. 
 It is not necessary to go into the details of these cases nor to discuss the 
 propriety of the rule accepted for the measurement of franchise values. 
 The significant point is that the courts have taken judicial cognizance of 
 a value in excess of what may be termed the inventory value of the phys- 
 ical properties. This being the case, the question at once arises as to the 
 source of this excess or surplus value, and also its social and industrial 
 quality ; and, should an analysis of this value prove it to be in any way 
 peculiar, the further question arises, whether the principles of equity and 
 justice, which are acknowledged to lie at the basis of taxation, may not 
 require the taxation of this value in a peculiar manner. To answer this 
 question calls for an analysis of what for convenience may be termed the 
 surplus value inherent in the property of a prosperous railway, and it is 
 to this analysis that I now invite your attention. 
 
 Surplus Value the Product of Organization 
 
 Speaking generally, the value of the intangible, immaterial, or non- 
 physical element of an industry is the product of organization, a produc- 
 tive principle recognized by Adam Smith, the importance of which has 
 grown with each step in the development of industry. Such an observa- 
 tion, however, is of but slight importance, for commercial organization is 
 itself of many sorts and followed by various results. Our analysis will 
 be more fruitful if we substitute for so glittering a generality an enumer- 
 ation of some of the more important elements to be found in surplus 
 value as it inheres in railway properties. 
 
32 3 AMERICAN STATE GOVERNMENT 
 
 Surplus Value — the Formal Value of the Franchise 
 
 1. This value covers, in the first place, the value of the franchise, 
 that is to say, the value of the right to be and to act as a corporation. 
 An assertion of a franchise value as a distinct form of value, however, is 
 submitted as a concession to legal lore rather than because it is believed 
 to be of very much importance. It is undoubtedly true that a franchise 
 carried with it an independent value when the right to be and to act as 
 a corporation was an exclusive privilege. At present, however, general 
 corporation laws have destroyed whatever value pertained to a franchise 
 on account of its exclusive character. If there be surplus value, it must 
 be found in the nature of the industry in question, or in the relation 
 which that industry bears to the principle of competition, and not in the 
 fact that a particular body of men are at liberty to exist as a corporation. 
 The surplus value which we are now endeavoring to explain is something 
 more than the formal value of the franchise. 
 
 Surplus Value — a Value in Excess of Inventory Value 
 
 2. Holding in mind the business of transportation by rail, this value 
 includes, in the second place, the possession of traffic not exposed to 
 competition, as, for example, local traffic. There are, of course, commer- 
 cial limitations to the value accruing to a railway corporation from this 
 source. For example, the rates from noncompetitive business are more 
 or less influenced by the rates for competitive business. The curtailment 
 of demand through excessive charges, also, as well as all those consider- 
 ations which find expression in the law of monopoly prices, act as 
 commercial restraints in the adjustment of local railway tariffs. But, not- 
 withstanding all that may be said in this vein, it yet remains true that 
 commercial considerations offer no guarantee of just and reasonable rates 
 when judged by ordinary business standards ; and the margin of surplus 
 earnings thus rendered possible becomes the basis of a surplus value, that 
 is to say, a value in excess of the inventory value of physical elements. 
 
 Surplus Value — created by Amalgamations and Consolidations 
 
 3. The nonphysical value of the railway includes, further, the value 
 which arises from the possession of traffic held by established connec- 
 tions. The fortunes that have been made in the railway business during 
 the past fifty years have resulted largely from the organization of inde- 
 pendent companies into great railway systems. The important point for 
 this analysis, however, is that the amalgamation of connecting lines, as 
 well as the consohdation of competing lines, gives to each member of the 
 operating system thus created a class of traffic which it might not other- 
 wise be able to hold, and consequently confers upon each member of the 
 
THE STATE ADMINISTRATION 323 
 
 system a value which it might not otherwise possess ; and when it is 
 remembered that the rates at which this traffic is moved are not exposed 
 to the competition which would exist were it not for the organization of 
 railway properties into systems, it is evident that this element of value is 
 likely to be of considerable importance. From the point of view of the 
 influence of competition upon the earnings of railway corporations, the 
 difference between the so-called competitive and noncompetitive traffic 
 is less than commonly supposed. Whether traffic be local or through, 
 competition is no guarantee that it will be carried for what it costs to 
 render the service. 
 
 Surplus Value — created by Density of Traffic 
 
 4. The intangible value includes, in the fourth place, the benefit of 
 economies made possible by the increased density of traffic. This state- 
 ment rests upon what is universally recognized as the fundamental busi- 
 ness principle of railway transportation. It means that the growth of 
 population and the consequent increase of traffic which results from the 
 growth forces a value into the treasuries of railway corporations which 
 cannot be credited to the superior ability of those by whom railways are 
 administered. Were this business exposed to the influence of competi- 
 tion, the value in question would be dissipated to the public through a 
 reduction in the price of service. For many reasons, however, this is not 
 possible in the case of the business of transportation, and the value re- 
 sulting from economies rendered possible by the increase in traffic comes 
 into the possession of the corporation rendering the service. 
 
 Surplus Value — created by Organization and Vitality 
 
 5 . Lastly, the intangible value of a railway corporation includes a value 
 arising on account of the organization and vitality of the industry which 
 renders the service. This value, consequently, is in the nature of an un- 
 earned increment to the corporation. It may be said that all industries 
 are interdependent, and that every business depends for its prosperity 
 upon the prosperity of those who are its customers. This is undoubtedly 
 true, but it is equally true that, unless all industries are equally exposed 
 to competition, or upon the same basis so far as concerns their ability 
 to avail themselves of the advantages of monopoly, some will be able to 
 maintain while others will be forced to give up the value that accrues on 
 account of the widespread development of industrial technique. The signif- 
 icance of this observation in the analysis of surplus value becomes evident 
 when it is conceded as an answer to the claim that the railways have 
 created the wealth of the world and that their compensation cannot 
 therefore be too highly appraised. It is a mistaken analysis that overlooks 
 the close interdependence of all the agents of industrial prosperity. 
 
324 
 
 AMERICAN STATE GOVERNMENT 
 
 Surplus Monopoly Value a Social Product 
 
 If the above analysis of the origin and nature of surplus value, as it 
 appears in the case of a prosperous railway corporation, be correct, it is 
 evident that this value exists because it fails to be diffused to the public 
 through the agency of commercial competition. Were competition able 
 to keep the price of the service of transportation in the case of each and 
 every railway down to the cost of the service rendered, or were it good 
 policy for the government to define a reasonable rate as a rate which 
 coincides with the cost of service, including normal profit, no such value 
 as that under consideration could exist. The capitalization of railways, 
 and consequently the assessment of railway property for the purpose of 
 taxation, would tend to be the cost of reproducing the plant, as in the 
 case of manufacturing properties, whose balance sheets are continuously 
 exposed to the adjustments of competition. This means that the surplus 
 value of a railway corporation is monopolistic in its origin in the same 
 sense, though not for the same reason, that the capitalization of the rental 
 value of real estate is monopolistic. It is a value contributed by the pub- 
 lic to the corporation because of the imperative character of the public 
 demand for transportation. It results from the fact that increased den- 
 sity of traffic, due to the increase in population and to the development 
 of general commercial activities, provides the railways with an ever-in- 
 creasing opportunity of availing themselves of the productive principle 
 which lies in organization. The relative amount of this surplus value, which 
 should be credited to railway managers on the one hand, for availing them- 
 selves of the opportunities of increased economies, and to the public 
 whose industrial activities furnish these ever-broadening opportunities, 
 is not here in question. 
 
 The Public a Joint Proprietor with Railway Corporations 
 
 The important fact is this, that a portion of the surplus value now en- 
 joyed by railway corporations is a direct contribution from the public, 
 and that competition is incapable of diffusing this value through a reduc- 
 tion of the price of the service. It is a socially produced value, and the 
 logical application of the principle which lies at the bottom of the institu- 
 tion of private property, namely, that he who produces a thing should be 
 its proprietor, will lead to the conclusion that the public is a joint proprie- 
 tor with the railway corporations in the property which they control. 
 This at least is the question which, as it appears to me, the attempt to 
 secure a just system of taxation as between railway property and other 
 property will force upon the consideration of the courts, and, should 
 the courts acknowledge the accuracy of the analysis here suggested, and 
 extend their definition of property to include a quasi-public property as 
 they now acknowledge a quasi-public industry, a radical modification of 
 
THE STATE ADMINISTRATION 
 
 325 
 
 the system of taxation becomes imperative. The situation disclosed by 
 this analysis is one for which the theory of the general-property tax 
 makes no provision. That theory assumes value to be homogeneous, 
 whereas the foregoing analysis makes it clear that this is not true. The 
 tendency in railway taxation of which this paper speaks is not to be 
 found in the statutes, but in the necessities of the situation. If my analy- 
 sis be correct, it follows without question that the underlying principle of 
 the financial system of the future will be the recognition of a joint pro- 
 prietorship between the public and the corporations in all cases where 
 surplus value proves to be a permanent feature. This, of course, assumes 
 that a socialistic program will not be realized. 
 
 PROTECTION OF THE STATE TREASURY ^ 
 By Governor La Follette 
 
 Existing laws are wholly inadequate to insure the safe-keeping and 
 integrity of the funds and securities of the state in the state treasury. 
 These funds and securities at times amount to a number of millions of 
 dollars and always are of great monetary value. There are now in 
 its vaults approximately $1,222,750 in negotiable bonds, payable to 
 bearer, held in trust for the common-school, normal-school, university, 
 and agricultural-college funds, in addition to large sums in the banks of 
 deposit for state funds located at different points throughout the state. 
 Very early in the present year there will be on deposit, and under the 
 control of the state treasurer, money and negotiable securities belonging 
 to the state of the value approximately of $3,000,000. The moneys 
 may all be withdrawn upon check signed by the state treasurer alone, and 
 securities all be negotiated by his simple indorsement. It will be admitted 
 by all that the unlimited power to dispose of the funds and securities of 
 the state ought not to be lodged in a single individual or officer. A dis- 
 honest official, in the absence of a legal check or restraint upon him, 
 might easily deplete the treasury and cripple the conduct of the public 
 business. The legislature cannot act too swiftly in correcting these de- 
 fects by the enactment of efficient laws applicable to the subject. To 
 this end it is suggested that laws should be passed : 
 
 I St. Providing that no bond or other negotiable security now owned 
 or held in trust, or which shall hereafter be owned or held in trust, by 
 the state shall be transferred except by the joint indorsement of the state 
 treasurer and Secretary of State. 
 
 2d. Providing that there shall be indorsed or stamped across the face 
 of all bonds or other securities now or hereafter owned by the state, the 
 following : " This bond (or other security, naming it) is the property 
 of the state of Wisconsin and can only be transferred by the joint 
 
 1 From governor's message of 1905. 
 
326 AMERICAN STATE GOVERNMENT 
 
 indorsement of the state treasurer and Secretary of State," or other words 
 of similar import ; and likewise upon all bonds held by the state in trust 
 or hereafter so held, indorsed with the words : "This bond (or other secu- 
 rit)-, naming it) is held in trust by the state and can only be transferred 
 by the joint indorsement of the state treasurer and Secretary of State," 
 or other words of similar import. 
 
 3d. Providing that all bonds or other negotiable securities hereafter 
 purchased or becoming the property of the state or coming into its pos- 
 session by virtue of any trust shall, at the time of such purchase or of 
 becoming the property of the state or of coming into the possession of the 
 state b)- virtue of any trust, immediately be stamped by the state treasurer 
 across their face with the designated words. 
 
 Provision might be made for weekly meetings of the board of deposit, 
 and that such board should have the power to designate state deposits as 
 being (a) banks of deposit, (l>) checking or working banks. 
 
 4th. Providing that the board of deposits should be given authority to 
 order the deposit of such sum as it may deem advisable and safe, not 
 exceeding the limit now prescribed by law, and that thereupon such sum 
 be forthwith deposited in the bank of deposit named. 
 
 5 th. Providing that neither the whole nor any part of any deposit 
 made in a state bank of deposit could be checked out or withdrawn 
 except upon the order of the board of deposit. 
 
 6th. Providing that all moneys, drafts, or bills of exchange received 
 into the state treasury shall on the day of their receipt be deposited to 
 the credit of the state in some one of the working or checking banks of 
 deposit. That all drafts or other bills of exchange upon their receipt in 
 the state treasury shall immediately have indorsed or stamped across 
 their face the words, " This draft (or other instrument, naming it) is the 
 property of the state of Wisconsin and can only be transferred by the 
 joint indorsement of the state treasurer and the Secretary of State." 
 
 7th. Providing that warrants on the state treasury be paid by drafts 
 on some one of the working or checking banks, which drafts should be 
 signed by the state treasurer or assistant state treasurer and counter- 
 signed by the Secretary of State or the assistant Secretary of State, and 
 no money should be withdrawn from such working banks except upon 
 drafts so signed and countersigned. 
 
 8th. Providing that the state treasurer at the close of business on 
 Saturday of each week furnish each member of the board of deposits a 
 statement showing the total amount of receipts and disbursements for 
 the preceding week of each fund in the state- treasury, and the balance 
 on hand in each state fund and in each of the state banks of deposit at 
 the close of the week's business. 
 
 9th. Providing that the state treasurer should be required on the first 
 day of each month, and at such other times as the Secretary of State 
 shall require, to exhibit to him for his examination a true account of the 
 
THE STATE ADMINISTRATION 327 
 
 receipts and disbursements of the treasurer for the preceding month ; 
 and providing further that it shall be the duty of the Secretary of State 
 on the first day of each month, or as soon thereafter as practicable, to 
 examine and audit the accounts of the state treasurer, state board of 
 control, state board of university regents, and state board of normal 
 school regents, and to report to the executive any deficiency or irregularity 
 in such accounts. 
 
 A number of state officers and departments, acting in the line of pre- 
 scribed duty, from time to time receive in the aggregate large sums of 
 money for fees, and upon other accounts pursuant to law, and nearly if 
 not all pay out various amounts for necessary expenses. The statutes 
 now in force provide for no appropriate checking or report as to these 
 receipts and disbursements. Some provision should be made correcting 
 this defect. These accounts should be carefully examined and report 
 made thereon at stated intervals. The examination and report ought to 
 be made by an officer who is independent of the different officers and de- 
 partments whose accounts are to be so examined and reported. It would 
 seem that the commissioner of banking would be the proper officer to 
 make the examination and to report the results thereof. It is therefore 
 recommended that the commissioner of banking be required by law, once 
 in three months, or oftener if required by the executive, to examine the 
 accounts of each officer and state department receiving state moneys or 
 making expenditures thereof, and also the accounts of the charitable and 
 penal institutions of the state, the normal schools, and the state univer- 
 sity, and immediately thereafter make full report thereof to the Secretary 
 of State. It might be well to provide also that these accounts be so ex- 
 amined and reported upon for the biennial period just closed. The 
 accounts of the commissioner of banking should also be examined and 
 reported upon in the same manner, but by some officer or person other 
 than himself. This work would necessarily entail upon the commissioner 
 of banking the burden of a large amount of additional labor, and some 
 provision ought to be made for the employment and compensation of 
 the necessary help to do it promptly and efficiently. 
 
VI 
 
 EDUCATION 
 
 EDUCATION AND LOCAL PATRIOTISM ^ 
 By G. W. Curtis 
 
 The distinction that we draw between primary and secondary, or 
 academic, education does not indicate an essential difference ; it does 
 not mean that the state is interested in one and not in the other. It is 
 a distinction of convenience only, to define what limits it may be wise 
 to prescribe for the public provision of education. The state care of 
 education is taken in the interest of the public welfare ; and of the 
 public welfare, and of the necessary provision for it, the state is itself 
 the judge. The state of New York, for instance, does not restrict its 
 provision for education to the primary school. It includes within its 
 iDeneficent care and supervision the whole system of colleges, academies, 
 and secondary schools, not indeed to the same degree as the primary 
 schools, but for the same purpose, namely, the public welfare, and upon 
 the same principle, namely, the duty of promoting it. The maxim im- 
 puted to Jefferson, — the best government is that which governs least, — 
 like all such absolute generalizations, in order to be true must be inter- 
 preted intelligently. Applying to it his own principle of strict construc- 
 tion, it would sweep away both the public school and the post office, 
 the twin columns of public intelligence upon which the fabric of popular 
 government rests. Jefferson was a practical statesman just in the degree 
 that he disregarded the absolutism of his own maxim. The latest, most 
 thorough, and ablest of the historians of his administration, Mr. Henry 
 Adams, with complete justice to Mr. Jefferson's qualities, shows how 
 comprehensive was this disregard. Mr. Bancroft, who delighted to call 
 himself a Jeffersonian, pointed out to me but a few years since that Mr. 
 Jefferson in his last message to Congress, on the 8th of November, 1808, 
 recommended, in view of a treasury surplus, that the revenue should 
 not be reduced, but appropriated "" to the improvement of roads, canals, 
 rivers, education, and other foundations of prosperity and union." The 
 voice is Jefferson's voice, but the hands are the hands of Hamilton. 
 
 It is because New York, in common with her sister states, holds 
 with the old Dutch state of Zealand that " education is the foundation of 
 
 1 From a speech delivered at Kingston, New York, 1891 
 328 
 
EDUCATION 329 
 
 the commonwealth," that, while providing munificently for the primary 
 schools, she does not restrict her interpretation of education to the 
 knowledge conveyed in those schools, but includes within its rightful 
 significance, and to a certain degree, the secondary schools. It is with the 
 same wise view that the legislature at its late session made an appropri- 
 ation for the system of university extension, which is simply a scheme for 
 bringing the college, so far as practicable, to citizens in every part of the 
 state who are unable to go to the college. The colleges of the state, in con- 
 cert with the university of the state, which is the official head of the system 
 of higher education, unite with the authority and aid of the state in an 
 organized system of lectures and examinations to extend higher education 
 throughout the state. Such a system, indeed, does not abolish the public 
 school nor supersede the college nor give to its students the advantage 
 of college residence. But in every community in the state which desires 
 the benefit it gives to the graduate of the public school who is already 
 engaged in the active work of life an alluring incitement to devote his 
 leisure hours to study ; and thus, by opening more widely diffused oppor- 
 tunities of education, by bringing the good tidings of larger knowledge to 
 the remote village and the farmer's boy, who otherwise must lose it, it 
 assures a more educated people and a nobler commonwealth. No recent 
 legislation upon the subject is more important and significant. It is an- 
 other illustration of the larger comprehensive and sagacious spirit which 
 is placing New York in the van of educational progress. 
 
 We must emancipate ourselves from the delusion that the concern of 
 the state begins and ends with the primary school, or that the state pro- 
 vides for the education of all its children that they may be able only to 
 read a newspaper, to keep an account, and to make out a bill. The 
 public end of education, indeed, is not to make accountants or engineers 
 or specialists of any kind, but enlightened, patriotic, upright, public-spirited 
 citizens. In primary education we give the children keys and tools, but 
 our duty includes showing how to use them. To teach a child to read 
 is indispensable, but to teach him to read is not to teach him to read 
 with profit. Yet one is as much a part of education as the other, and 
 the public good sense that sustains the school, not a rigid theory of the 
 limited function of the state, must determine the limits of instruction. 
 Moderation, says Bacon, must be the rule ; but an occasional excess, he 
 says, is wise. 
 
 Higher education is of the highest concern to the state, because higher 
 education is only more education, larger knowledge, completer training. 
 There is no point in education at which indispensable knowledge ends 
 and fanciful knowledge begins. Pope's sparkling gibe, " a littie knowledge 
 is a dangerous thing," is a caustic fling at smatterers. But all knowledge is 
 comparative. The knowledge of great specialists and scholars is only larger 
 than that of those who know less. The contemporaneous knowledge of 
 science which Pope himself revered has been long since superseded, 
 
330 AMERICAN STATE GOVERNMENT 
 
 and measured by the science of to-day, is the merest little knowledge 
 which Pope derided. Even while the poet was writing the line, the 
 profoundest scientific scholar in England, Sir Isaac Newton, was saying 
 with the sublime modesty of greatness, " I do not know what I may 
 appear to the world, but to myself I seem to have been only like a little 
 boy playing on the seashore, and diverting myself in now and then find- 
 ing a smoother pebble or a prettier shell than ordinary, whilst the great 
 ocean of truth lay all undiscovered before me." 
 
 Higher education means only more education, and the argument for 
 education is not only an argument for the primary school, but for the 
 academy, the college, and the university. The more languages a man 
 hath, the more man is he. If it be well to know a little Latin or a little 
 German or a litde French, it must be better to know more of them ; and 
 if a man's mental horizon is widened, his moral powers quickened, and 
 his service to mankind enlarged by conversing with the creative genius 
 of all time, by familiarity with Homer and Dante and Shakespeare and 
 Cervantes, his manhood will be the more ennobled if to this power he 
 can add the skill to bind the sweet influences of the Pleiades or loose 
 the bands of Orion. 
 
 Before our Civil War the public man who proposed to estimate the 
 value of the Union was popularly scorned as a political parricide. He 
 was calculating the hfe of his parent. To the public instinct the life of 
 the Union was a sacred hfe, and therefore incalculable. Such also in this 
 country is the value of education. We pay it instinctive reverence. In 
 the remotest village when the farmer's boy returns to his native hills a 
 scholar of renown, I have seen the respect that follows him, as if every 
 citizen were conscious of more reasons for pride in the village and for a 
 sense of greater dignity in every villager. If any American should ask 
 of what use is all this education, the question would be as bewildering as 
 if the traveler along this river should ask of what use is all this glorious 
 landscape of the Hudson, of what use to know that it was the gleaming 
 pathway of Western empire, that yonder Hendrik Hudson sought for a 
 shorter passage to the Indies, and that holding that shining water the 
 British crown hoped to hold America. What could Numa have answered 
 if Egeria had asked him what was the use of loving her ? What could 
 Galileo have answered if the Inquisition had asked him what is the use 
 of measuring the courses of the stars ? What Shakespeare, if he had 
 been asked the use of revealing in immortal verse the secret play of the 
 human soul ? What shall we answer if we are asked the use of hearing 
 the tale of Troy divine, or listening to Plato in the garden, to Aristotle 
 in the grove ? 
 
 Or again, what is the reply if we are asked what is the use of tracing the 
 laws that govern exchanges, prices, currency, money ? What is the use 
 of comparing the problems of state socialism and nationalism with those 
 of individualism and the old laissez faire'i What is the use of studying 
 
EDUCATION 33 1 
 
 the great question of immigration, and of deciding whether we can right- 
 fully risk, by admitting within our gates vast masses of unassimilated and 
 alien ignorance and pauperism and crime, the interests of civilization and 
 liberty which have been committed to our guardianship ? What is the use of 
 understanding ourselves, our situation, our powers, and our duties ? What 
 is the use of making America a prouder name in human history, because 
 signifying greater beneficence to mankind, than Greece whom the gods 
 of beauty loved, or Rome crowned with the imperial sovereignty of the 
 world ? These, and such as these, are the questions we ask when we ask 
 what is the use of education ? Education is the entrance of the soul into 
 its rightful dominion of intelligence. To make better citizens and nobler 
 men, to extinguish ignorance, disorder, and crime, in the wisdom that comes 
 of knowledge and an enlightened conscience, — for this your academy and 
 all your schools were founded, for this those schools should be evermore 
 munificently maintained. As plants turn instinctively to the light, the human 
 soul turns towards truth, and every school that we wisely open ministers, 
 however humbly, to the fulfillment of this noblest of human aspirations. 
 Our intelligence is the divine spark within us, and the more carefully we 
 cherish it and fan it into flame, the more certainly will the world in which 
 we live be enveloped in celestial light, and human life fulfill its divine 
 purpose. 
 
 GOVERNMENT OF STATE UNIVERSITIES ^ 
 
 By Jacob Gould Schurman 
 
 The state-supported universities are governed by boards of regents or 
 curators or trustees, who are in some cases elected by the people and in 
 others appointed by the governor of the state. I now proceed to inquire 
 how this arrangement harmonizes with the idea of a university. 
 
 No one would pretend that the governing board of a state university 
 is committed to any dogmas like the articles of faith of a religious denom- 
 ination ; yet there are possibilities of oppression or restriction for the 
 university which must not be overlooked. The people may elect, or the 
 governor appoint, regents (or trustees) not only who belong to a particu- 
 lar political party, but because they belong to it. They may be all Repub- 
 licans or all Democrats, or all of some other political stripe. I do not 
 know that such a thing has ever actually occurred in any of the many 
 states which now have state universities, and in most of them it would 
 be impossible. But I make the extreme supposition in order that we may 
 clearly realize the force of the objection I am endeavoring to describe. 
 Here then is a board of regents made up wholly of men who belong to 
 one political party, and because they belong to it. How will the idea of 
 the university fare in the hands of such political partisans ? 
 
 1 From an address of President Schurman to the National Association of State Univer- 
 sities, 1909. 
 
332 
 
 AMERICAN STATE GOVERNMENT 
 
 Before attempting to answer that question I must crave your indul- 
 gence while I describe another hypothetical situation. The university is 
 not the only public institution supported by the state. There are many 
 others, including, for example, hospitals for the sick and asylums for the 
 insane. These institutions are also controlled and administered by boards 
 of managers, who are generally appointed by the governor of the state. 
 Let us suppose now that the same practical considerations which led 
 to the appointment of a Republican or a Democratic board of regents for 
 the state university necessitated also the appointment of a Republican or 
 a Democratic board of managers for the state insane asylum. How will 
 these political partisans administer the trust and care for the unfortunate 
 wards committed to them by the sovereign power of the state ? 
 
 To ask such a question is to answer it. These men will perform their 
 public duties like any other American citizens who might have been 
 selected to undertake them. With one exception, of which I shall have 
 more to say in a moment, the fact that the managers are all of one polit- 
 ical party will make no difference in their administration of the asylum. 
 Whether of one political party or more, or of no political party, the man- 
 agers in any event will desire to conduct the public business committed 
 to them with reasonable efficiency and economy. And the members of 
 the board, however constituted, would always feel that this is what the 
 public expected of them. Even a board composed entirely of members 
 of one political party would not consciously and deliberately defy or 
 ignore that expectation. But such a board is always exposed to one 
 temptation which cannot arise in a board differently constituted. A board 
 wholly Republican or wholly Democratic is pretty sure to select such 
 officers or employees as it appoints from its own political camp, and 
 perhaps on the recommendations of political leaders ; and the favoritism 
 which leads to the appointment of such candidates is apt to protect them 
 afterwards against the just and salutary penalties that should be inflicted 
 for neglect of duty or incompetency in office. In this way the adminis- 
 tration of a state asylum may be seriously impaired, if the managers be 
 entirely of one political party. And to some extent this danger is immi- 
 nent when a considerable majority of the managers are of the same polit- 
 ical party. In the best administered asylums the danger is avoided by 
 having all appointments in the hands of the superintendent and holding 
 him responsible for the results. 
 
 This example enables us to measure the danger to which a state 
 university may be exposed from a board of regents who are political par- 
 tisans. The vital point is the matter of appointments. If the board on 
 its own motion makes appoiritments, they will be made on political 
 grounds or on other grounds foreign to the life and spirit of the univer- 
 sity, and the institution might as well close its doors. It has a name to 
 live, but it is dead. On the other hand, if the board acts only on nomi- 
 nations made by the president, and if before making nominations the 
 
EDUCATION 
 
 333 
 
 president (who, if he thinks of anything but the merits of the candidates, 
 profanes his high office) also consults and advises with the dean and 
 members of the faculty who profess cognate branches of learning, then 
 it would seem to matter little whether the members of the board of re- 
 gents were all men of one political party or of none. The faculty is the 
 university ; and if its members are selected by their peers, and on the 
 basis of ability and scholarly or scientific attainment and achievement, 
 the life of the university goes on inviolate. Or, rather, it would go on 
 inviolate, if this governing board of political partisans did not choose to 
 interfere at another point, where interference is at any rate conceivable. 
 
 Here the analogy with the administration of the state insane asylum 
 does not help us. For the managers of an asylum, however intense 
 their own political convictions and sentiments, cannot conduct a propa- 
 gandist campaign or make converts among the insane. But a board of 
 regents composed of political partisans might conceivably desire to use 
 the university for such purposes. These ends are, however, so alien to 
 the life and objects of the university that, as experience happily shows, 
 even a partisan electorate would not tolerate the spectacle of such a 
 shameful perversion of functions and aims. A board of regents which 
 attempted it would be overwhelmed with obloquy and disgrace. 
 
 A board of political partisans might, however, with more prospect of 
 success, interfere with the teaching of some professor whose views were 
 opposed to their own political dogmas. The members of a Republican 
 board might resent free-trade teachings ; and a sympathetic exposition 
 and defense of socialism might bring down upon the head of the pro- 
 fessor the objurgations of either Republican or Democratic regents. 
 This danger is a very real and serious one in cases in which the mem- 
 bers of the board reflect the views, sentiments, and prejudices of a large 
 majority of the people of the state. A newspaper campaign is inaugu- 
 rated (or, under the conditions, inaugurates itself) against the " heretical " 
 professors, and they and their teachings are denounced from one end 
 of the state to the other. When the legislature meets, the matter is made 
 a subject of legislative investigation. And it is inevitable that the funda- 
 mental relation between the university and the state should be thoroughly 
 canvassed. At such a time legislators and voters, too, are likely to ask 
 whether the state should vote public money, whether citizens should tax 
 themselves to support an institution which is instilling into the minds of 
 the picked young men and women of the rising generation ideas and 
 theories utterly opposed to those which they and their fathers have long 
 entertained and devoutly cherished, and which they believe to be essen- 
 tial to the sound life of the body politic or even to the nobility of individual 
 manhood. This is the supreme crisis for the state university. Freedom 
 of thought, freedom of investigation, freedom of teaching, freedom of 
 publication, — this is the soul of a university. And dictation from the 
 state is just as much tyranny as dictation from the church. Truth must 
 
334 AMERICAN STATE GOVERNMENT 
 
 judge itself ; it cannot be determined by counting noses. One man with 
 God is a majority. The professor must be left free to follow the dictates 
 of reason and the demonstration of evidence, even though his conclusions 
 are at variance with the beliefs (or prejudices) which the mass of mankind 
 regard as fundamental truth. And if a state university cannot insure him 
 that freedom, it is to that extent not a university at all. As in the denom- 
 inational university the last word would be spoken not by the intellect but 
 by some power outside it, — by a board of trustees, by a legislature, or 
 by a majority of the people of the state. 
 
 Like other institutions the state university is on trial. The supreme test 
 is whether the people of the state will, on the one hand, tax themselves to 
 support it, and, on the other, impose upon themselves a self-denying ordi- 
 nance to leave it severely alone : so that it may select its own members by 
 the application of its own intellectual standards, and the members thus chosen 
 may be absolutely free to investigate, to teach, and to publish whatever they 
 believe to be the truth. If our people do not already possess this concep- 
 tion of a university, they must be educated up to it, for a university can- 
 not flourish on any other condition. I need scarcely point out that the 
 general acceptance of this view would be greatly facilitated by the con- 
 stant recollection on the part of the professors of the maxim that freedom 
 implies obligation, and that in this instance the obligation imposed is that 
 of self-restraint, along with the courtesy to be expected of gentlemen 
 and that tact which mitigates or avoids the asperities of embarrassing 
 circumstances. 
 
 A university which has an organic connection with the state possesses 
 not only the advantage of state support ; it has the privilege and the 
 duty of serving the state. Of course its service is rigidly limited to the 
 educational, scholarly, and scientific interests of the state. But in these 
 days those interests are very extensive and very diversified. One of the 
 most important is the provision of teachers for the high schools and nor- 
 mal schools of the state. This function is likely to increase in importance 
 with every passing year. Our secondary and elementary schools are 
 inferior to similar schools in France and Germany. To make them more 
 thorough and efiicient we need better teachers. There is no other remedy. 
 And better teachers will be demanded just as soon as communities dis- 
 cover that this is the only way to reform. These teachers must, for the 
 high schools, be furnished by the universities. And a state university, 
 which is the crown and climax of the educational system of the state, has 
 in these circumstances a unique opportunity and privilege which any 
 privately endowed university must envy. Even the' privately endowed 
 university, however, may share in this splendid work. And it is its mis- 
 fortune — I will not say its fault — if among its graduates there is not 
 a considerable number who intend to devote themselves to the teaching 
 profession, Certainly there is an obligation incumbent on the state uni- 
 versities to educate teachers for the schools and to create and intensify 
 
EDUCATION 335 
 
 enthusiasm for the teaching profession. From the point of view of the 
 public this is quite as important as graduating lawyers, physicians, or 
 clergymen. 
 
 But a state university will not content itself with any object short of 
 the entirety of educational, scholarly, and scientific interests of the state. 
 It has in this respect an advantage over the privately endowed university, 
 — an advantage reflected in the constitution of the governing board, to 
 which I have already referred. The scope of the privately endowed 
 university is narrower, its program less diversified, than that of the state 
 university. It is in the state universities that the scientific and intellec- 
 tual interests of the community are reflected in their entirety. As these 
 universities are dependent on the people as a whole for their support, 
 they are sensitive to the intellectual needs of the people wherever and 
 whenever they arise. There is no work, no calling, no human activity 
 too humble for their consideration, if only science or knowledge can be 
 of use in it. On the other hand, as the people support the university, no 
 section of the community will tolerate the neglect of its peculiar problems. 
 Hence it is that the state universities have such a multiplicity of de- 
 partments and comprehensiveness of curriculum. Their province is the 
 totality of human knowledge and its application to the life and work and 
 vocations of mankind. Agriculture is cultivated side by side with law, 
 and the mechanic arts with medicine. The action and reaction of a uni- 
 versity and the people of the state upon each other is mutually advanta- 
 geous. Of course the people are aided and elevated by knowledge ; but 
 it is also an advantage to the university to be kept in close touch with 
 concrete scientific problems and with knowledge that is useful ; the uni- 
 versity is thereby saved from scholasticism and barrenness. It may be 
 said that this work is utilitarian ; but if so, it is utilitarianism which is 
 characterized by intellectual service to mankind. A more serious objec- 
 tion would be that this activity of the university in practical spheres might 
 atrophy the wings of reason and keep it from soaring into the heights 
 of speculation. That, however, is an indictment which De Tocqueville 
 brought against American democracy before the state university came 
 into existence. And it should be noticed that the activity which tlie state 
 universities exhibit in practical affairs, like farming and engineering, is 
 itself a theoretical and rational activity. And I see no reason why facts 
 concerning crops, stock, railways, and factories should not be as stimu- 
 lating to pure reason as any other groups of facts. Certainly Darwin, 
 the greatest scientific speculator since Newton, took as the starting point 
 of his theories the data gathered by gardeners and stock breeders. 
 
 The attitude of our people towards their state universities is a sublime 
 and encouraging spectacle. It is, however, as wise and farsighted as it 
 is touching and impressive. For the life of states, like the life of individ- 
 uals, is dependent on foresight, and foresight is the counterpart of that 
 exact and systematic knowledge which we call science, of which the 
 
00 
 
 -6 AMERICAN STATE GOVERNMENT 
 
 university is the organ and workshop. The best guides and the chief 
 helpers of the community are not the politicians and financiers, who fill 
 the public eye, but the scholars and the scientists. The universities are 
 to a nation what eyes are to an animal. And since in our republic the 
 federal government has nothing to do with education, it devolves on 
 the states to supply the universities. Their origin and support can no 
 longer, in the United States, be left to the caprice and uncertainty of 
 private generosity, helpful as that generosity may be. Education from 
 the elementary school to the university is the concern of the state. The 
 majority of our states have recognized this obligation and provided state 
 universities. The West has led, but the East is following. And before 
 many years a state without a state university will be an anomaly in our 
 Union. For the rest, I assert most emphatically that a state university 
 is an indispensable organ of genuine democracy. 
 
 WORKINGMEN AND HIGHER EDUCATION ^ 
 
 Any organization of higher education which is based on the assumption 
 that education of a "' general " kind is desired or needed only by those 
 entering the professions, while technical education alone is suitable for 
 persons engaged in manual labor, is fundamentally mistaken. It is, 
 of course, true that the education of the majority of the former may 
 be predominantly of the " general " kind, while that of the majority of 
 the latter may be predominantly "" technical." But technical and general 
 education ought not to be distinguished on the ground that they are fit 
 for different classes, but because they stimulate different sides of the 
 same individual ; and in our opinion a man who will, throughout life, 
 work with his hands needs a general education for precisely the same 
 reason that it is needed by a specialist like a lawyer or a doctor, in order 
 that he may be a good citizen and play a reasonable part in the affairs of 
 the world. Manual labor (except when accompanied by undue pressure) 
 does not in any way disqualify a man for receiving such an education, 
 and indeed the whole principle involved in the absolute distinction which 
 is sometimes made between physical and intellectual work is open to the 
 objection that it rests upon an unsound psychology. The truth is that the 
 education of every class must keep two objects in view, because in a 
 democratic community every man and woman stands in a twofold relation- 
 ship to the rest of society. On the one hand, as a workman, whether 
 with head or hand, he must obtain the technical qualifications needed to 
 maintain him in independence or to advance him in life. On the other 
 hand, as a member of a self-governing nation he must acquire the civic 
 qualities which enable him to cooperate with his fellows and to judge 
 
 1 From Oxford and Working-Class Education ; being the Report of a Joint Committee of 
 University and Working-Class Representatives on the Relation of the University to the 
 Higher Education of Workpeople. 
 
EDUCATION 337 
 
 wisely on matters which concern not only himself but the whole country 
 to which he belongs. In the words of a workman, a student, and a trade 
 unionist : 
 
 The education required is not a mere bread-and-butter education, which 
 will only make the worker into a more efficient wealth producer. It may be 
 very good for the commercial prosperity of the nation that our workmen 
 should be higher skilled and more capable than their brethren in America or 
 in Germany ; but when education has merely made a man into a better work- 
 man, it has not done all that it can for him, nor all that he has a right to expect. 
 The time has come for the workingman to demand a share in the education 
 which is called " liberal " because it concerns life, not livelihood ; because it is 
 to be desired for its own sake, and not because it has any direct bearing upon 
 his wage-earning capacity. By the avenues of art, literature, and history it 
 gives access to the thoughts and ideals of the ages ; its outward mark is a broad 
 reasoned view of things and a sane measure of social values ; in a word, it 
 stands for culture in its highest and truest sense. This " liberal " education 
 should be a common heritage. But in this, as in many other things, the working 
 class has been for long a disinherited class, and the national universities, which 
 are the natural fountainheads of national culture, have been regarded as the 
 legitimate preserves of the leisured class. This state of things has not only 
 wronged the working class ; it has to a great degree sterilized the universities 
 themselves. 
 
VII 
 PROHIBITION 
 
 THE SALOON AND THE LAW^ 
 By Governor Folk 
 
 The liquor traffic should be regulated by strict laws, and those laws 
 vigorously enforced. We need a law prohibiting brewers and distillers 
 having an interest in dramshops. The criminal saloons are often the 
 brewery-owned saloons. Competition between breweries compels them to 
 take a low class of men and set them up in business. These men have 
 no sense of proprietorship or pride in running a decent place, and these 
 saloons often become dens of vice and lawlessness. Effective local-option 
 laws for counties, towns, and cities should be enacted. 
 
 More important than this, however, is some measure to secure the 
 enforcement of the dramshop laws throughout the state. We have 
 dramshop laws closing saloons on Sunday, and otherwise regulating the 
 liquor traffic. These laws have been enforced for the past several years 
 in the cities of St. Louis, Kansas City, and St. Joseph, through the ex- 
 cise commissioner and the police commissioners appointed by the gov- 
 ernor. Outside of these cities the state has no power whatever to enforce 
 these laws, and in a number of the counties the dramshop laws are openly 
 and flagrantly violated. I have suggested as a remedy for this condition 
 a state-excise-commissioner law. Several states have such a measure, 
 with most satisfactory results. There has been a state excise commis- 
 sioner in New York state for ten years. There has been a state excise 
 commissioner in the city of St. Louis for many years, and no one would, I 
 think, advocate the abolition of that office without providing something 
 equally as good in its place. The measure proposed would not interfere 
 with local control. County dramshop licenses and municipal dramshop 
 licenses would continue to be issued and revoked as at present, and by the 
 same authorities. The excise law suggested provides for a state license 
 only. There is no state license under the present statutes. The excise com- 
 missioner would have jurisdiction only over the state license, and would 
 have nothing to do with the county or municipal licenses. In order to 
 insure thorough local control, the state license should be issued only after 
 the county court has approved the application for a county license. The 
 
 1 From a special message, April 9, 1907. 
 338 
 
PROHIBITION 339 
 
 excise commissioner would thus have no power outside of the large cities, 
 where the approval of the county court is not required, to put a man 
 in business or to keep a man out of business. Either the county court 
 could put the dramshop keeper out of business by revoking his county 
 license, or the excise commissioner could revoke his state license in the 
 event local control should fail. In order to prevent any possible abuse of 
 the power by the excise commissioner, the circuit courts of the several 
 counties should be given the right of review of the evidence on appeal 
 by any person aggrieved. The worst that abuse of power on the part of 
 the excise commissioner could do, would be to deprive some county of a 
 saloon temporarily. This would not be a great disaster. Even were it so, 
 under the plan proposed the circuit court could soon relieve the drought. 
 Objection has been made that a state excise commissioner might build 
 up a saloon machine. That would be impossible, for the county courts 
 could revoke the county license of a dramshop keeper should the excise 
 commissioner attempt to indulge him in lawlessness. Two thirds of the 
 saloons of the state are now, and have been for years, in control of the 
 governor's appointees in the three large cities of the state. No one can 
 truthfully say that there is now any machine of the saloons made by that 
 control, or that the governor has used his power in that respect for his 
 personal or political ends in any way. Under the proposed law the gov- 
 ernor could not build a machine out of the excise power if he wanted to. 
 Absolute local control is provided for. As long as there is local control 
 of saloons in any county there will be nothing for the excise commissioner 
 to do there. It is only when there is no local control that he comes in. 
 Where there is local self-government of saloons the excise commissioner 
 would not be called upon. There are some who object to the idea of a 
 state excise commissioner on the ground of one-man power. The excise 
 commissioner's power is limited by the county courts and the circuit 
 courts, and to be used in connection with the local authorities. He would 
 not have nearly so much power as a state banking commissioner, with the 
 absolute control of all the banks in the state, and no one claimed that the 
 banking-bureau law created a one-man power. Such power as the excise 
 commissioner would have would be for the enforcement of law. If a one- 
 man power is needed to correct lawlessness, would it not be better to have 
 one-man power to enforce the law than to tolerate the saloon power to 
 disobey the law. There is far less danger in official power to execute the 
 laws than there is in the saloon power to defy the laws with impunity. 
 Those who concern themselves lest some man be given too much power 
 to compel obedience to the statutes of the state relating to saloons, do not 
 seem to be at all disturbed when other lines of business are proposed to be 
 controlled through state authority. It is not suggested that the state take 
 absolute control of all the saloons of the state. It is best, as the proposed 
 measure does, to leave the control locally and allow the law to be enforced 
 by local officials, if they will do this ; but if they will not, then the state 
 
340 
 
 AMERICAN STATE GOVERNMENT 
 
 protects its laws from \iolence. The excise law, instead of interfering 
 with local self-government, restores it where it has been superseded by 
 saloon sovereignty. 
 
 This measure is not unprecedented. It is not revolutionary. It is in 
 accord with the well-established policy of the state for half a century as 
 to interests affecting the general public. To illustrate: When a child is 
 born he is under the care of a doctor controlled by the State Board of 
 Health. The milk and butter that he eats and drinks are under the con- 
 trol of the State Dairy Commissioner. Later on, the dentist that fixes 
 his teeth is under the control of the State Dental Board. The teacher 
 that instructs him is licensed by the State Superintendent of Schools, who 
 may revoke the license. The pharmacist from whom he obtains his 
 medicine is regulated by the State Board of Pharmacy. The barber that 
 shaves him is regulated by the State Barber Board ; the insurance com- 
 pany in which he insures is regulated by the State Insurance Department ; 
 his mines, if he acquires any, are regulated by the State Mining Bureau ; 
 the railroad on which he travels is regulated by the State Board of 
 Railroad Commissioners ; the birds that he hunts are looked after by 
 the State Game Warden ; the fish that he catches are propagated by the 
 State Fish Commission ; his horses, if he has any, are subject to the 
 State Veterinary Board ; his factories are regulated by the State Factory 
 Inspector ; the bank where he deposits his money is controlled by the 
 State Banking Department ; the corporation in which he may have stock 
 is regulated by the Secretary of State ; the building and loan association 
 in which he may invest is regulated by the Building and Loan Supervisor ; 
 his beehives are regulated by the State Inspector of Apiaries ; the osteo- 
 path who treats him is regulated by the State Board of Osteopathy ; if 
 he makes his will, the lawyer who writes it is licensed by the State Board 
 of Law Examiners ; and when he dies he is buried by an undertaker regu- 
 lated by the State Board of Embalmers. But if during life he visits a 
 saloon open on Sunday, contrary to law, he finds that this is the only busi- 
 ness affecting public morals that the state does not regulate, because some 
 one says it will interfere with local self-government. What inconsistency 1 
 Why is it that the plea of local self-government was not set up against 
 the state regulating the mines, the railroads, the insurance companies, the 
 banks, the dentists, the barbers, the beehives ? It is only when the saloons 
 and gambling interests are sought to be brought within the law that 
 local self-government is invoked. At the regular session of this assembly 
 laws were enacted placing all the banks of this state under the control of 
 a banking commissioner ; putting the beehives under the State Inspector 
 of Apiaries ; placing the roads under the supervision of the State High- 
 way Engineer ; providing for a state game warden to enforce the laws to 
 protect the birds of the air and the fish that swim in the water ; providing 
 for state control for the weighing of grain in all public warehouses ; mak- 
 ing foodstuffs subject to the inspection of the State Food Commissioner. 
 
PROHIBITION 341 
 
 There was nothing heard about self-government when these were being 
 considered. But when it is urged that the state have some authority 
 to enforce its laws against the liquor interests, the situation in the minds 
 of some assumes a different aspect, and the cry of self-government is 
 raised, although real self-government is in no way affected by the excise 
 law. Why should there be so much straining at the excise law, when all 
 these other state control measures have been swallowed so easily .' Either 
 all of these things should be left entirely to the regulation of the local- 
 ities, or the saloons, that need regulation more than all the rest, should 
 likewise be regulated. One cannot consistently indorse the state control 
 of these and then deny the right of the state to regulate saloons on 
 the plea of self-government. There is just as much self-government in 
 a locality regulating a bank as a saloon. Local self-government of the 
 kind that attacks this measure is not often heard of unless saloon sov- 
 ereignty or gambling sovereignty is threatened by the assertion of state 
 sovereignty. We hear nothing of local self-government when banks, rail- 
 roads, and mines are regulated by the state ; but it becomes frantic when 
 lawless saloons are sought to be controlled, even remotely. The saloons 
 and gambling interests cloak themselves in self-government and insist 
 that the state has no right to step'in and make them obey the law. Of 
 course the state has done this very thing as to all other interests ; but 
 in each of these cases the state has exercised the right without question ; 
 no lawless elements were involved. If the saloons were here asking to 
 be regulated, as the banks have come, and the barbers have come, and 
 the pharmacists have come, and as the saloons would come if they desired 
 to obey the law, what reason could be given why their request should not 
 be granted ? It could not be denied them for lack of precedent, for this 
 is the only interest not regulated. The mere fact that they do not come 
 asking for measures requiring the lawless among them to observe the 
 law is all the more reason why the state should compel obedience to its 
 laws, whether they wish to obey or not. I believe the liquor interests 
 should be made to obey the law, just as the bankers and barbers and 
 dentists are compelled to obey the law. The saloon keeper has no right 
 to demand the special privilege of wanton lawlessness. I believe the state 
 should say to this interest, " You shall be controlled locally, so long as you 
 are controlled locally, but you must do business according to law, or you 
 shall not do business at all." 
 
 Conclusion 
 
 These are the only subjects embraced in the call convening this session. 
 During your deliberations occasion may arise to submit other matters, 
 but this will not be done unless I consider them of such grave importance 
 as to demand attention at once, for I realize after your arduous labors 
 of the regular session it would be imposing a hardship on you to bring 
 your attention to other than measures of vital consequence. Some of 
 
342 
 
 AMERICAN STATE GOVERNMENT 
 
 the subjects I have spoken of, and that are embraced in the call for this 
 session, were hastily considered by you in the regular session. They are 
 things I think the people of the state want, and which I believe they 
 should have. \Miile I might have taken refuge behind the efforts made 
 at the regular session to give the people all the reforms promised, I feel 
 1 would not have been doing my full duty in carrying out the pledges 
 made to the people by such a course. This special session will, I trust, 
 round out and complete the work of reform so well begun at the regular 
 session. Permit me to express the hope that your deliberations will be 
 pleasant and harmonious, and to assure you of my cordial cooperation in 
 every endeavor for the public welfare. 
 
 THE NATION'S ANTIDRINK CRUSADE ^ 
 By Ferdinand Cowle Iglehart 
 
 In two thirds of all the territory of the United States the saloon has 
 been abolished by law. Forty years ago there were 3,500,000 people 
 living in territory where the sale of liquor was prohibited. Now there are 
 36,000,000 people under prohibitory- law. Since that time the popula- 
 tion of the country has scarcely doubled, while the population in prohibi- 
 tion territory has increased tenfold. There are 20,000,000 people in 
 the fourteen southern states, 17,000,000 of whom are under prohibitory 
 law in some form. In 1900 there were 18,000,000 under prohibition 
 in the United States ; now there are 36,000,000. In eight months state- 
 wide prohibition has cleared the saloon from an area as great as that of 
 France. In that area there is a solid block of territory 320 miles north 
 and south by 720 miles east and west, in which on the first day of next 
 January a bird can fly from the Mississippi to the Atlantic Ocean, and 
 from the boundary of Tennessee to the Gulf of Mexico, without looking 
 down upon a legalized saloon. Great Britain and Ireland could be set 
 down over this space without covering it. There would be 10,000 square 
 miles of " dry " territory left as a border. 
 
 This is not the first wave of prohibition that has swept over the 
 country. Fifty-four years ago there was one that swept over the north- 
 em states with as great violence as the one that is now passing over 
 the South. Then Maine, New Hampshire, Vermont, Rhode Island, 
 Connecticut, New York, Delaware, Michigan, Indiana, and Iowa, by acts 
 of their legislatures, forbade the manufacture and sale of intoxicating 
 liquors as a beverage. Nine northern states went " dry " in a single 
 year, the year 1855. 
 
 The liquor men, dazed and frightened at the revolution, set them- 
 selves desperately to resist it. By one pretense or another there was 
 widespread nullification of prohibition. One state after another receded 
 
 1 From Review of Reviews, April, 1908. Reprinted by permission. 
 
PROHIBITION 343 
 
 from its radical action, until nearly all adopted the system of license. 
 So that, up to a year ago, of the eighteen states that had tried the ex- 
 periment of prohibition, only three — Maine, Kansas, and North Dakota 
 — remained in the ranks, they having adopted constitutional prohibition. 
 Will the present prohibition legislation be ephemeral, like that of half 
 a century ago, or will it be permanent ? There is every reason to believe 
 that it will be permanent. There were more elements of permanency 
 in the earlier movement than appeared on the surface ; for during all 
 the years that the states were falling out of the prohibitory column the 
 people were steadily removing the saloon by " local option," till, at the 
 time there were but three prohibition states left, the liquor traffic had 
 been abolished from two thirds of the territory occupied by one half of 
 the population of the United States. Of the 36,000,000 people who 
 have expelled the saloon, only 10,000,000 have done so by state pro- 
 hibitory laws, and 26,000,000 have effected the removal by local option. 
 
 Georgia, the Southern Pioneer of Prohibition 
 
 Last summer Georgia became the first southern state to adopt pro- 
 hibition. At the close of the Civil War the free negro and the country 
 saloon were bad companions, fostering a bad civilization. A law was 
 passed forbidding the sale of liquor within three miles of a church or 
 school. Then county local option was adopted, which drove the saloon 
 from the farming districts and towns generally. But the jug trade from 
 the " wet " into the " dry " counties became so great and annoying that 
 the temperance people pushed the fight successfully into counties con- 
 taining cities. When the Georgia legislature met in July last there was 
 not the slightest idea in the mind of any friend or foe of whisky that a 
 prohibitory law would be enacted. The most that the enthusiastic friends 
 of temperance had hoped was that a bill would be passed allowing the 
 people to vote on the question at some future time. But a local-option 
 bill was passed in the Senate by a vote of 34 to 7, and in the House by 
 a vote of 139 to 39. On the day of the final passage of the bill repre- 
 sentatives of religious denominations and temperance organizations from 
 all parts of the state assembled in the capitol grounds and building, 
 members of the Woman's Christian Temperance Union being very 
 much in evidence. When the result was announced a scene of indescrib- 
 able enthusiasm was witnessed. The crowd spontaneously burst out 
 into " Praise God, from whom all blessings flow." Withered-faced old 
 women clapped their hands and shouted aloud for joy; old men fell 
 in one another's arms and wept like children. Seaborn Wright, the 
 leader of the prohibition forces in the assembly, was placed on the 
 shoulders of men and carried through the capitol, while the throng sang 
 lustily " Gloria in Excelsis." Governor Hoke Smith promptly signed 
 the bill and has since vigorously enforced it. 
 
344 AMERICAN STATE GOVERNMENT 
 
 The Georgia law in reality affected only fifteen counties, as 135 of 
 the 150 counties of the state had already gone "dry" by local option. 
 
 Oklahoma's Action 
 
 There was a very fierce contest over the liquor question in Oklahoma. 
 Congress, in the enabling act, required prohibition for twenty-one years 
 in the Indian Territory section of the new state. In the election of dele- 
 gates to the constitutional convention the liquor question was one of the 
 foremost. Then the pressure was made by both sides on the delegates 
 to incorporate or leave out of the constitution a prohibitory provision. 
 The convention prepared a constitutional provision, but made it necessary 
 for the people at the polls to determine whether they would make it a 
 part of their constitution or not. After an exceedingly exciting contest 
 the prohibitory provision was adopted and incorporated into the consti- 
 tution ; and so Oklahoma, the first state of the new century, and the 
 youngest of Columbia's daughters, hastened to join her sister Georgia 
 in the abolition of the saloon. 
 
 Alabama joins the Procession 
 
 The wires had scarcely carried the word that the President had 
 accepted the new state of Oklahoma, with its prohibition amendment, 
 when the legislature of Alabama passed a state prohibitory law, to take 
 effect on January i, 1909. The original excise law had been amended 
 from year to year, allowing privileges of local option to special locali- 
 ties, till the saloon had been driven out of twenty counties. As the 
 sessions of the legislature are only quadrennial, the antisaloon people 
 determined last winter to make the best of their opportunity and urge 
 the passage of radical temperance measures. Laws were passed allowing 
 local option for counties, preventing the shipment of liquors from " wet " 
 into " dry " territory, compelling temperance instruction in the public 
 schools, and forbidding the sale of '" hop jack " and other drinks con- 
 taining a small percentage of alcohol. Governor Comer called a special 
 session of the legislature last November to consider the differences 
 between the railroads and the state. He did not make any mention of 
 the temperance question in his message, as he did not intend that it 
 should be considered until the regular session three years hence. Be- 
 cause he did not make mention of it a two-thirds majority was required 
 to carry such a measure. When the members arrived at Montgomery 
 they would not give a single thought to the railroads till they had 
 "" expressed " the saloon out of the state by the adoption in the Senate 
 of the House bill prohibiting the manufacture and sale of liquors as a 
 beverage by a vote of 32 to 2. 
 
PROHIBITION 345 
 
 State-Wide Prohibition in Mississippi 
 
 In Mississippi the country saloon was spoiling the negro, and instead 
 of a three-mile limit, as in Alabama, the people pushed the saloon five 
 miles away from a church or school, which cleared the farm districts of 
 the crossroads groggery. In 1886 they adopted local option and removed 
 the saloon from the rural districts and from the small towns. 
 
 When they came to their constitutional convention the Prohibitionists 
 tried very hard to get a prohibitory clause in the new constitution, but 
 the Southern people were so bent on the question of the domination of 
 the white man that they would not allow any other one to interfere. 
 
 Up to a year ago the people, by local option, had driven the saloon 
 from 69 out of the 76 counties, which included 90 per cent of the 
 territory of the state. A few weeks ago the legislature met, and quietly, 
 and by almost a unanimous vote in both Houses, adopted state prohibi- 
 tion, to take effect on the first day of January, 1909. 
 
 North Carolina to vote this Month 
 
 It seemed a race between North Carolina and Mississippi, to see 
 which one should reach the goal of prohibition first. By the local-option 
 laws the people of North Carolina had expelled the liquor traffic from 
 62 of the 97 counties of the state and from all but 30 towns and cities 
 of the same, 99 per cent of the territory being "dry." On January 28, 
 this year, the House of Representatives at midnight passed the Senate 
 biU for a state election on prohibition the last Thursday in April, and on 
 that day the people, without doubt, will make swift work of the abolition 
 of the saloon there. Of the many earnest temperance workers Governor 
 Glenn is the most prominent and influential. 
 
 The Movement in Tennessee and Kentucky 
 
 Tennessee, after fourteen years of hopeful warfare against the liquor 
 trade, on February i, 1907, passed the Pendleton liquor law, which made 
 the Adams law general throughout the state, and has been the most 
 powerful factor in a swift movement toward the abolition of rum. There 
 were fierce contests for the abolition of the liquor traffic in the cities of 
 Clarksville, Bristol, Knoxville, and Jackson. In these cities on election 
 day men, women, and children marched through the streets singing 
 temperance and religious songs, and filled the churches for -services of 
 prayer. All but 5 of the 96 counties of the state are now " dry," and 
 only 3 cities — Memphis, Nashville, and Chattanooga — remain " wet." 
 
 The relation of Kentucky to the whisky business is a matter of sur- 
 prise to the whole nation. The state has $160,000,000 invested in dis- 
 tilleries. Through local-option legislation it has expelled the saloon from 
 
346 AMERICAN STATE GOVERNMENT 
 
 94 out of 119 counties, from 370 towns of the 425 towns and cities, 
 and from 97 per cent of the territory of the whole state. The bitterest 
 fight \\as carried down into Louisville, the headquarters of the liquor 
 forces. Because the mayor of that city would not enforce the law closing 
 the saloons on Sunday, charges were preferred against him and Gov- 
 ernor Beckham removed him. The fight there was well-nigh tragical. It 
 became the issue for the next municipal election, and at the one held 
 last fall James F. Grinstead was elected mayor, defeating Owen Tyler, 
 who stood for a repeal of the Sunday-closing law. In the last guber- 
 natorial election the Antisaloon League forces thought they discovered 
 a secret friendliness between the Democratic leaders and the whisky 
 forces of Louisville, and, though these leaders flatly denied the fact, the 
 suspicion became strong enough to drive thousands of temperance 
 people away from the Democratic party and elect Governor Augustus 
 E. \\'inson and all the rest of the Republican ticket by a substantial 
 majority. The jail keepers of Kentucky recently appeared before the 
 present legislature to ask for a special appropriation, assigning as the 
 reason that the closing of the saloons had so diminished crime that they 
 did not have prisoners enough left within the jail walls to furnish board 
 money to apply on maintenance. Kentucky, like Tennessee, will vote 
 for state prohibition whenever the people care to do so. 
 
 In the Old Dominion 
 
 Virginia, the mother of states and statesmen, is trying hard to keep 
 the swift pace the South has set toward prohibition. The Mann liquor 
 law gave the first severe blow to the saloons of the state. It removed 
 them from the rural districts. In a few years 1000 saloons, or one half 
 of those in the state, have been abolished. Two thirds of all the saloons 
 now open are found in 3 cities, and one half of all the " wet " territory 
 is confined to Norfolk and its vicinity. Of the 140 incorporated towns 
 120 are "drf." Of the 100 counties 73 have no saloons. Some have, 
 however, a dispensary or distillery here and there. There are 46 coun- 
 ties where no form of license is issued. There are 5 counties in the 
 northern neck of Virginia in which the total number of the black popu- 
 lation outnumbers the white, and from which the saloons have been 
 expelled, which furnish the most marvelous minimum of crime, the jails 
 of the 5 counties having only 3 prisoners. 
 
 Of the 1,000,000 inhabitants of West Virginia 700,000 have abolished 
 the liquor traffic. Of the 55 counties 29 are "dry," 10 have drinking 
 places in but i town each, 4 counties have saloons in but 2 towns each, 
 and 2 counties have saloons in 3 towns. The constitution of the state 
 empowers the county commissioner to grant or refuse a liquor license. 
 The legislature has granted to the councils of certain cities and towns 
 the right to issue licenses, which they have done. 
 
PROHIBITION 347 
 
 Delaware and Maryland 
 
 The legislature of Delaware in March, igoy, provided for a vote on 
 November 5 on the question of the manufacture and sale of intoxicating 
 liquors. One half of the state, the counties of Kent and Sussex, went 
 "" dry " ; the other half, rural Newcastle County and Wilmington, retained 
 its rum. 
 
 Maryland has expelled the saloon from one half of its area, and from 
 the environment of about one third of its population. Of the 26 coun- 
 ties 10 are entirely " dry," 4 are completely " wet," and the rest of the 
 counties are " wet " and " dry " in spots. Like some other states, Mary- 
 land has granted special local temperance legislation. Each county or 
 district or village has asked for special laws. There is a marked advance 
 in temperance sentiment and action. Increased local-option privilege in- 
 cluding the residential districts of cities is asked. Cardinal Gibbons recently 
 wrote an open letter which is significant ; in it he said, " I believe that 
 the right of people to determine by the operation of local-option laws 
 whether saloons shall or shall not be closed in their respective communities 
 is in harmony with the American principle of self-government." 
 
 The " Dispensary " in South Carolina 
 
 South Carolina has had the " dispensary " system in the sale of liquor 
 for fourteen years. It is a system of state control of the liquor traffic. 
 In 1896 Senator Tillman secured the incorporation of the dispensary 
 into the state constitution. As a revenue producer, when honestly ad- 
 ministered, the system is a success. As a moral measure the dispensary 
 is a failure. Its record of vice and crime shows an increase over the 
 license system. The total excess for six years under the dispensary 
 system over that of the license system was: assaults, 1080 ; homicides, 
 157 ; and violations of the liquor law, 2051. For the six years following 
 the introduction of the system there was an increase of 40 per cent in 
 assaults, and almost 100 per cent increase in homicides, over the six 
 preceding years under license. The Carey-Cottigan bill killed the state 
 dispensary, but as a compromise it allows local option as to whether a 
 reformed dispensary or prohibition shall be maintained. There are 41 
 counties in the state, 23 having dispensaries and 18 being "dry." 
 
 Local Option in other Southern States 
 
 The local-option law was put into the constitution of Florida in 1887. 
 Of the 46 counties in the state, 33 have prohibition and 13 permit the 
 sale of liquor. There are only 2 2 incorporated towns which have saloons. 
 Laws against selling in prohibited territory are very stringent. About 
 three fourths of the people in the state live under prohibitory law. Gov- 
 ernor Broward is one of the strongest enemies of the" saloon. 
 
348 AMERICAN STATE GOVERNMENT 
 
 The supreme court of Louisiana has just rendered a decision which 
 guarantees the efficiency of the local-option bill amended in 1902. Under 
 that law, of the 59 parishes in the state 24 have outlawed the saloon, 
 and many other sections of the state have done the same. The strong- 
 hold of rum, of course, is New Orleans, with its 325,000 population and 
 its 2000 drinking places. Notwithstanding this influence, two thirds of 
 the territory of the state has voted for prohibition. 
 
 Texas, with its enormous area and almost 3,000,000 of population, 
 has waged a terrible battle against the bottle. Local option for many 
 years has been very strong in the state, driving the saloon from one 
 county after another. The temperance people are not well pleased 
 with the Baskin-McGregor law, which they claim is rather friendly to 
 the liquor interests. Of the 243 counties, 147 are entirely "dry," 51 
 are partly " dry, " and 45 permit the sale of liquor. It is thought 
 that seven tenths of the voting population of the state will be ready 
 to record itself in favor of state prohibition when the proposition shall 
 be presented. 
 
 In Arkansas the people vote by wards, townships, and counties on the 
 question whether liquor shall be sold or not. They also have a right by 
 petition to forbid a saloon within three miles of a church or schoolhouse. 
 A majority vote of all the inhabitants is required, which includes mothers, 
 wives, sisters, and daughters over eighteen years old. The legislature a 
 year ago abolished crossroad country saloons, stopped liquor salesmen 
 from going into prohibition territory with their goods, and the wholesale 
 houses from advertising liquors in papers and circulars in territory where 
 the sale of liquor is forbidden by law. Of the 75 counties, 58 are "dry." 
 Eighty per cent of the territory of the state has expelled the saloon. 
 
 The heroic stand which Governor Folk took as prosecuting attorney 
 and as governor against the lawless elements, not sparing the saloon, 
 has had very much to do with the improvement in temperance sentiment 
 in Missouri. That state has a local-option law, with a county unit except- 
 ing cities of 2500, which vote independently. In " wet " territory license 
 may be obtained on a petition of one half of the taxpayers or upon the 
 petition of two thirds of the real-estate owners in a block. Of the 114 
 counties, 47 are now "dry." Within the past three years 700 saloons 
 have gone out of business in St. Louis alone, as a result of Governor 
 Folk's stringent enforcement of the Sunday-closing law. 
 
 The Campaign in the Middle West 
 
 In 1880 Kansas incorporated prohibition in its constitution. Directly 
 opposite opinions of the success of the law are held. The liquor dealers 
 are gready distressed over the failure of the law, and the people of the 
 state generally hold that it is a success. Governor Hoch, of Kansas, in a 
 recent letter, says : " I believe prohibition has been a great benefit to the 
 
PROHIBITION 
 
 349 
 
 state financially, intellectually, and morally. The state has $145,000,000 
 in its banks, $83 per capita; pauperism is practically unknown ; the prison 
 has but little more than when the state had one half its population." 
 
 Ohio has always had strong temperance sentiment. It was aroused in 
 1873 by the women's crusade at Hillsborough under "Mother "Thompson, 
 which was the birth of the Woman's Christian Temperance Union. In 
 1883 there was a canvass of a state-prohibition amendment to the con- 
 stitution, in which a majority of those voting on the question were for 
 prohibition, but the proposition failed because a majority of all votes cast 
 for the candidates on the ticket was required to secure the passage of 
 the amendment. The worst enemy the saloon in Ohio and America has, 
 appeared in 1893 when the Antisaloon League was organized. Under 
 the leadership of Governor Foraker the Dow tax law was passed in 
 1886, which is now in operation. In 1888 the Beatty township local- 
 option law was passed; in 1902 the Beal law, giving local option to 
 cities and villages as a whole, was passed; in 1904 the Brannock law, 
 and in 1906 another local-option law for residential districts in cities. 
 Under these laws 490 villages and cities have expelled the saloon. Of 
 the 1376 townships, 1150 have forbidden the liquor traffic, and over 
 400,000 people in the residential sections of the great cities have abol- 
 ished rum. About 68 per cent of the territory is now " dry." The Anti- 
 saloon League people of Ohio effected a political revolution which was 
 more marked than the one which took place at the last election in Ken- 
 tucky. It was the defeat of Governor Herrick on the Republican ticket 
 by Governor Pattison as a punishment for his hostility to the local-option 
 bill, and the election of Lieutenant-Governor Harris and -the whole Re- 
 publican ticket by 40,000 majority as the reward for their pronounced 
 friendliness to the bill. Governor Harris, who is now executive of Ohio, 
 is one of the most persistent enemies of the saloon. A few weeks ago 
 the Rose bill, extending local option to counties as a unit, passed both 
 houses of the legislature and became a law, under which it is understood 
 that 70 out of the 88 counties of the state will expel the saloon. 
 
 The people of the Hoosier State are about as -enthusiastic on the 
 subject of temperance as they are in Ohio. In Indiana the reformers 
 have their victories through the Moore law, which forbids the saloon by 
 a popular remonstrance. By its use 219 townships and 27 city wards, 
 considerably more than one fifth of the population of the state, have 
 banished their saloons. By these remonstrances 750 saloons have been 
 either closed or prevented. There are now 683 " dry " townships out 
 of a total of 1016. The 5000 saloons are confined to 333 townships; 
 and in 72 out of 92 counties the majority of the voters have recorded 
 themselves against the saloon. The drastic " Blind Tiger " law has been 
 of great service to the reformers. Governor Hanly is one of the most 
 enthusiastic and uncompromising enemies of the liquor traffic in the 
 United States. 
 
350 
 
 AMERICAN STATE GOVERN^[ENT 
 
 The liquor power is very strongly intrenched in the state of Illinois. 
 Chicago has as many saloons as all of the fourteen southern states com- 
 bined. Until the passage of the local-option bill about a year ago there 
 was nothing but a city and village dramshop law, and the people had no 
 voice on the saloon question. Under the new law the people of every 
 township in the state may vote upon the question of saloon or no saloon 
 in the entire township. A large number of towns and cities voted 
 " no license" at the election last autumn ; and within a year i6 "dry " 
 counties have been added to the lo which already existed, making 26 in 
 all. The saloon has been expelled from the residential districts in cities. 
 The Board of Aldermen of Chicago a few weeks ago refused to issue 
 license to sell liquor to a district one square mile in extent in the south- 
 western portion of the city, and it is understood that there are at least 
 ten square miles of territory inside the city limits of Chicago where the 
 saloon is forbidden by law. 
 
 The enormous brewery interests of Milwaukee put up a desperate fight 
 for the possession of the legislature of Wisconsin a year ago, on the 
 platform of the repeal of every restrictive law, but failed. A residence- 
 district option bill passed the legislature almost unanimously. There is 
 not a county in the state entirely " dry," but local option in towns and 
 cities has banished the drink traffic from one half of the geographical ter- 
 ritory of the state, from 708 of the 1454 towns and cities. 
 
 Michigan is peninsular, with much marshy ground ; there is only one 
 "dry" county out of the 85 in the state, and there are but 50 towns 
 and cities out of 412 that have abolished the saloon. 
 
 The people of Minnesota have a township local-option law, and an 
 option for municipalities organized under a village charter. One fourth 
 of the 525 municipalities of the state do not allow the sale of liquor. 
 Twelve hundred of the 1800 organized townships have no saloons. Four 
 hundred of the 600 remaining " wet " townships have no saloons except 
 those in the incorporated villages. About 45 per cent of the population 
 live under prohibitory law. Minneapolis has a patrol-limit system, which 
 confines all the saloons within a small section in the business district and 
 forbids the sale of intoxicants anywhere else. The most important feature 
 of the temperance question in Minnesota is the strict enforcement of the 
 excise laws. Mayor Robinson, of St. Cloud, was removed from office for 
 a failure to close the saloons on Sunday. The decision of the supreme 
 court frightened every mayor and officer of the law, and the result is 
 that St. Paul, Minneapolis, and every licensed city and town of the state 
 are as tight as a drum on Sunday. 
 
 In Iowa the people voted in favor of constitutional prohibition in 1883. 
 Upon a technicality the supreme court held the election void. The legis- 
 lature, however, passed a prohibitory statute. Because of difficulties at- 
 tending its enforcement in the " river cities " of the state, a so-called 
 " mulct " law was passed, which permits a locality, upon petition of 65 
 
PROHIBITION 351 
 
 per cent of the voters, to secure an exception to the general prohibition. 
 Of the 99 counties only 22 grant liquor license, and of 11 12 towns and 
 cities 975 forbid the sale of rum. 
 
 In Nebraska 10 counties out of 90, and 450 out of 1000 towns and 
 cities, have voted out the saloon. 
 
 South Dakota had prohibition when admitted to the Union, but by 
 local-option legislation has become a license state. Two out of the 66 
 counties and 30 of the 136 towns and cities have abolished the saloons. 
 
 North Dakota retains the constitutional prohibition which it had when 
 received into the Union. Judge Pollock expresses his estimate of the 
 value of prohibition to the state. He says : 
 
 Our prosperity under prohibition is well-nigh phenomenal ; the United States 
 census reports show that North Dakota has the greatest wealth per capita of 
 any state in the Union, and that our farm earnings per capita are the greatest 
 in the nation. We have $ 1 00 per capita in our savings banks. The population 
 of North Dakota has increased 70 per cent in the last ten years. 
 
 Montana has much " dry " territory in the mountains and plains, but 
 mainly because there are no inhabitants to make it "wet." Butte, the 
 mining center, has been described as a large body of ready money sur- 
 rounded by whisky. There is a county local-option law. A year ago a 
 wine-room law was passed forbidding a woman's presence in a saloon as 
 a barmaid, a patron, or companion of a patron. The " ladies' entrance " 
 in evidence in all the license states has been abohshed there. 
 
 Wyoming is a rum stronghold. It is the fifth whisky state in the 
 Union. 
 
 Colorado last year passed the Drake local-option bill, which gives local 
 option to a municipality, ward, and precinct. Under the law the temperance 
 forces, including the women, who have the right of suffrage, are waging a 
 warfare against the enemy which promises to clear most of the drinking 
 places out of the state. 
 
 The Pacific Slope 
 
 In Idaho the temperance people asked of their legislature and ex- 
 pected a local-option law, but instead they were given high license, with 
 some option to the county commissioners in the granting of hcense to 
 sell outside of incorporated cities. The state gives the municipality power 
 to prohibit the sale of liquor by the passing of an ordinance. By such 
 an ordinance Meridian, twelve miles from Boise, and some other cities 
 have secured prohibition. 
 
 Nevada, in proportion to its population, is at the head of the column 
 of the rum states in America. It has a liquor seller for every 49 inhab- 
 itants, while in Mississippi there is only one for every 3240 persons. 
 There are more than sixty times as many liquor dealers in Nevada as 
 in Mississippi, 
 
352 AMERICAN STATE GOVERNMENT 
 
 In the state of Washington a year ago the local-option bill was lost 
 by a xote of 43 to 44. The attempt of the liquor men to pass a Sunday- 
 opening law was defeated, and the reaction compelled the Sunday clos- 
 ing of two thirds of the saloons of the state, which had been wide open 
 in defiance of law. Walla ^^'alla, Tacoma with its 1 00,000, Seattle with 
 its 250,000 inhabitants, and most of the other cities are hermetically 
 sealed on Sunday. 
 
 In Oregon, of the 33 counties, 8 are "dry," and 70 precincts in other 
 counties ha\e abolished the saloon. 
 
 California, with its saloons in San Francisco and other cities on the one 
 side and active temperance people on the other, is the scene of a battle 
 in which liquor bills are being defeated and restrictive measures are 
 being adopted. 
 
 The Eastern States 
 
 Maine is the mother of prohibition. Neal Dow was the father of the 
 Maine law. It was enacted in 185 1, repealed in 1856, reenacted in 1858. 
 In 1884 it became a part of the constitution of the state. Two years ago 
 it was only retained by a narrow majority, when Governor Cobb made 
 the canvass and was elected on the issue. Despite illicit selling and 
 encouragement to nullification upon the part of the politicians of both 
 parties, the people of the state acknowledge the benefit of the system. 
 Congressman Littlefield in a recent address referred to the singular 
 material as well as mental and moral thrift of the state under prohibition. 
 
 New Hampshire abandoned prohibition in 1902. Six of the 11 cities 
 and 183 out of the 224 towns are "dry." The temperance people are 
 for resubmission. 
 
 Vermont abandoned prohibition in 1903. Two hundred twenty-one 
 of the 246 towns have voted "dry," and three fourths of the people 
 live under prohibition. The antisaloon people are for resubmission and 
 prohibition. 
 
 Massachusetts has a long list of manufacturing cities which have 
 abolished the saloon, including Lynn, with its 78,000, and Worcester, 
 with its 130,000 inhabitants. Ex-Governor Douglas was active in the 
 campaign in his city of Brockton, which went " dry." If the local-option 
 bill for cities now urged on the legislature should pass, Boston would 
 expel the saloons from large districts in the city limits. 
 
 Rum has a strong grip on Rhode Island. Since 1889 the state has 
 been under local option. There are only 16 towns that have abolished 
 the saloon, and 22 towns and cities retain it. 
 
 Connecticut has recently secured the enactment of laws that are friendly 
 to the temperance people. There are 90 towns "dry" and 78 "wet" 
 under local option. 
 
 New Jersey's liquor law is hostile to the temperance reformers. Char- 
 ters of some cities allow certain protests, but there is virtually no local 
 
PROHIBITION 353 
 
 option. There is a tremendous conflict on now by the antisaloon people 
 for local option, which will probably be successful in the near future. 
 
 New York is the headquarters for brewers and distillers. There are 
 30,000 retail liquor dealers in the state. They pay license fees of ^19,- 
 000,000. The state is under the Raines law, which allows local option 
 in townships. A large number of new towns went " dry " at the last 
 election. The excise laws are much more stringently enforced. A search- 
 and-seizure bill and a bill for local option in cities have been intro- 
 duced in the present legislature, with a prospect of their passage. The 
 Reverend Dr. C. H. Parkhurst, representing the Society for the Preven- 
 tion of Crime, has just demanded of Governor Hughes the removal of 
 Mayor McClellan and Police Commissioner Bingham on the charge of 
 their refusal to enforce the excise law closing the saloons of New York 
 City on Sunday. The Antisaloon League and kindred organizations are 
 backing up Dr. Parkhurst in this demand. 
 
 Pennsylvania, like New York, is behind most of the states in temper- 
 ance reform. The Brooks license law is not satisfactory to the antisaloon 
 people. A local-option law asked for by them has been killed in the com- 
 mittees of the legislature, so strong has the whisky power been upon it. 
 
 What has caused this Temperance Revolution 
 
 There are reasons why the South should take the lead in this prohibi- 
 tion movement. It was necessary to remove the saloon from the negro 
 to save Southern industry and civilization. Booker T. Washington the 
 other day said : " The abolition of the barroom is a blessing to the negro 
 second only to the abolition of slavery. Two thirds of the mobs, lynch- 
 ings, and burnings at the stake are the result of bad whisky drunk by 
 bad black men and bad white men." Besides, the South is intensely 
 American. In the fourteen southern states there are but i6 foreign- 
 born persons to every 1000 inhabitants. In Ohio, California, Pennsyl- 
 vania, New York, Illinois, and Wisconsin there are 178 foreign-born 
 persons to every 1000 inhabitants. In the mountain districts of the South, 
 where the foreign-born population is the least in America, there are al- 
 most no drinking places. The " moonshiners " hide in some of the 
 mountain dens, but there are not 20 open saloons in the rural sections 
 of the mountains of Virginia, West Virginia, Kentucky, Tennessee, 
 North Carolina, Georgia, and Arkansas. It is not so hard to get the 
 liquor traffic away from so homogeneous a population. The Southern 
 people are sentimental and enthusiastic, and do what they do with an 
 intense enthusiasm. As a rule they have a deep religious instinct and 
 the highest moral ideals. The territory is good ground for prohibition. 
 
 But there are reasons deeper than this which have made such local 
 success in the South. The negro question has had nothing to do with 
 prohibition in Maine, Kansas, North Dakota, Oklahoma, Ohio, nor Iowa. 
 
354 
 
 AMERICAN STATE GOVERNMENT 
 
 The work of abolishing the saloon meets with the least resistance in the 
 plantation sections of the South and the rural districts of the North ; 
 but it is going on in the cities as well. In the manufacturing city of 
 Birmingham (Alabama), Atlanta (Georgia), Knoxville (Tennessee), in 
 many of the manufacturing cities of New England, and in large residen- 
 tial districts of Chicago and other cities the same conflict with the same 
 spirit is being waged. 
 
 The present temperance upheaval is the revolt of the American con- 
 science against what it considers to be wrong. The American saloon 
 can blame itself largely for the present opposition to it ; it is essentially 
 bad. Aside from the inherent danger of the business under the wisest 
 possible restraints, the liquor dealers of the nation have set themselves 
 to do their very worst to provoke alarm. The saloons are the breeding 
 place of all kinds of vice and crime. In them the thieves, the murderers, 
 ballot-box stuffers, grafters, purchasers of law, and the debauched find 
 their education and protection ; and from them the lawless hordes go 
 forth to prey upon society. The only wonder is that the people have 
 stood this menace to our civilization as long as they have. 
 
 While it is not universally so, it is too often the case that the saloon 
 fosters and promotes the social evil. The public sentiment is greatly 
 outraged at the intimate relationship between the saloon and the dis- 
 orderly house. The public is very angry because so many drinking places 
 are gambling hells. 
 
 Another thing that has stirred the public against the liquor traffic has 
 been the relationship between the politician and the saloon. No feature 
 of American public life is so abominable and discouraging as this open 
 and notorious copartnership of the liquor traffic with politicians of all 
 parties in the business of crime. It is an astounding fact that most of 
 the great cities of the country are ruled by rum, and have been for a 
 generation or more. Every privilege for every kind of crime is bought 
 and sold for money. Fabulous corruption funds and thousands of the 
 criminal classes are organized to hold up the public and compel it to de- 
 liver. Three saloon keepers of Chicago have absolute authority in wards 
 one and eighteen, where the traffic in vice is maintained ; and men of 
 their stripe rule in some other wards; so that the political complexion 
 of Chicago is determined by the saloon influence. In New York City 
 a large proportion of the Tammany leaders who determine the policy 
 of their party in the city and state are or have been saloon keepers. In 
 Philadelphia and in some other cities the connection between the saloons 
 and the political leaders of the opposite party is just as marked as it is 
 in Chicago or New York. 
 
 The liquor dealers themselves confess to the badness of the present 
 American saloon. Each class is charging the blame on the other. At a 
 meeting of the Brewers' Association at the Waldorf-Astoria in New York 
 City recently the blame was laid at the door of the retail liquor dealers. 
 
PROHIBITION 355 
 
 It was charged that the saloons, many of them, were filthy dens, and 
 that the business had to be reformed or the people of the country would 
 destroy them. The retail liquor dealers in their conventions have been 
 saying that the brewers, in their greed for money, have multiplied the 
 saloons beyond all reason, holding them down by their mortgages and 
 making it impossible, by the fierce competition which has been forced 
 upon them, to make a living and pay off the mortgages without intro- 
 ducing the disorderly house and gambling rooms as annexes, putting up 
 money for graft, and otherwise breaking the law. The brewers say the 
 fault is with the distillers, the distillers say the brewers are to blame. 
 They both admit the public has a grievance. 
 
 It is not only the badness of the American saloon that has caused this 
 revolution, but also the marked awakening of the public conscience 
 against all kinds of wrong, and hence the saloon comes in for its share 
 of rebukes and opposition. The temperance reformers and organizations 
 of the past and present have been exceedingly active, and each without 
 an exception has been an important factor in the great moral upheaval 
 that is shaking down so many drinking places. The Woman's Christian 
 Temperance Union, the Good Templars, the National Temperance Pub- 
 lication Society, the third-party Prohibitionists, the National Reform 
 Bureau, and kindred societies have all been active in their fields ; but 
 the one organization which has done more than all others in giving wise 
 direction and successful results to the present temperance revolution has 
 been the Antisaloon League. It was founded at Oberlin, Ohio, in 1893, 
 by the Reverend Howard H. Russell, D.D., a Congregational clergy- 
 man and son of an Episcopalian rector, who is now chairman of the 
 National Executive Committee and superintendent of the New York 
 State League. 
 
 The institution is compactly organized in forty-four states and terri- 
 tories, with a national, state, and district superintendency. It is inter- 
 denominational and omnipartisan. The Reverend Purley A. Baker, D.D., 
 is the national superintendent. The league has conducted itself so wisely 
 and honorably that it has commanded the universal respect of the churches 
 of all denominations, many of the Catholic as well as Protestant. There 
 are few cities or towns in the United States in which there is not a rep- 
 resentative of the league in some one or more of the churches on Sunday, 
 presenting the cause and securing help for its promotion. For thirteen 
 years this quiet work has been going on on Sundays, besides that done 
 on week days, and it is not necessary to go very far away from this uni- 
 fied sympathy and action of the Christian churches of America to find 
 the chief cause of this tremendous moral upheaval. There is scarcely a 
 legislature in session this year at which the Antisaloon League does not 
 have some measure or measures unfriendly to the liquor traffic, and the 
 restrictive temperance legislation of most of the states for several years 
 has been handled by official representatives of the Antisaloon League. 
 
356 AMERICAN STATE GOVERNMENT 
 
 Many rich men generously support this organization ; but there are 
 300,000 annual contributors to its campaign fund, which speaks loudly 
 of the popular sympathy and power which it possesses. Many who are 
 not members of any church, or even total abstainers, commend and 
 unite in the work of the league in the interest of law and order and of 
 civic righteousness. 
 
 This popular temperance sentiment has expressed itself in legislation 
 at Washington in the removal of the canteen from the army, of drink 
 from soldiers' homes and government buildings, and other measures, and 
 in a bill now before Congress preventing the shipment of liquors into 
 states whose laws prohibit their sale. 
 
 Will prohibition prohibit ? Relatively, yes. Absolutely, no. Prohibition 
 never does absolutely prohibit any form of crime, — that of murder, 
 theft, arson, forgery, or perjury. The courts and jails all attest the truth 
 of this. The contention of liquor dealers that more rum is sold in a state 
 under prohibition than under license is hardly to be taken seriously, for 
 if it were true, they would be working for prohibition instead of shivering 
 with fear and filling the papers and conventions with alarm at the tidal 
 wave of prohibition and loudly calling for organized help to resist and 
 prevent its destroying them. 
 
 You cannot make men good by law, — so many people and papers 
 are saying now. " Yes, you can ! " No people on earth can be good 
 without law and order ; so good a type of a race as the Anglo-Saxon has 
 to bind himself about with most stringent law to keep from becoming a 
 very bad citizen. Fully one half of all that is good or great in man has 
 had to be beaten into him by authority. Gladstone said that the primary 
 object of law is to make it easier for men to do right and harder for them 
 to do wrong. 
 
 Moral and political progress is always along the stages of advances 
 and retreats. How long will this temperance movement continue with- 
 out a reaction ? No one can tell. Very likely till every state in the Union 
 shall have tried the experiment of prohibition by local option or state 
 action. While there are 114,000 more saloons than churches, while the 
 liquor traffic continues to take into its treasury enough money each year 
 to run every department of the federal government, — executive, legisla- 
 tive, judicial, navy, army, post office, treasury, and every other interest, 
 — the whisky men will not surrender without a fierce and long struggle. 
 But the present revolution will result in greatly reduced individual con- 
 sumption of rum, in the manifest diminution of the sale of liquor, and in 
 the destruction of the American saloon in its present form. 
 
PROHIBITION 357 
 
 ANOTHER YEAR OF DEFEAT FOR THE AMERICAN 
 SALOON 1 
 
 By Ferdinand Cowle Iglehart 
 
 The revolt against the liquor traffic seems to be world-wide. The fight 
 against it in Europe is nearly as fierce as it is in this country. Finland 
 abolished intoxicants by a vote of its Parliament. Iceland adopted national 
 prohibition in September last. The Duma of Russia ordered the removal 
 of the royal eagle from the vodka bottles, and the substitution of the 
 skull and crossbones, the symbols of death, and the word " poison " 
 written in large letters beneath them as a warning to the people. In Paris 
 there are placards placed on the bulletin boards saying that " whoever 
 puts alcohol in his mouth takes out his brains, his money, his health, his 
 happiness." Government statistics in England show a decrease of thirty 
 million dollars' worth of intoxicants in the consumption during the year 
 1908. 
 
 The South swept by a " Prohibition " Wave 
 
 The temperance revolution in this country continues with unabated 
 energy. Eleven thousand saloons were put out of business during the 
 year 1907, as many more in 1908, and at that rate of decrease it would 
 require but twenty years to abolish all the saloons of the country. 
 
 About eighteen of the twenty millions of the people of the southern 
 states have already outlawed the saloon. In New York City alone there 
 are one thousand more saloons than in all the fourteen southern states, 
 and it looks as though' within the coming five years every state in that 
 section would vote the saloon out of existence. 
 
 On May 6, igo8. North Carolina followed her sister states of Georgia, 
 Alabama, and Mississippi in the adoption of state prohibition by a pop- 
 ular vote. 
 
 The campaign was a notable one, participated in by Governor Glenn, 
 the two United States senators, every member of Congress, all of whom 
 stood against the saloon, securing a majority of 42,000 votes. 
 
 The fight for prohibition in 1909 was begun by Tennessee, following 
 the example of her old mother state. North Carolina, passing a bill pro- 
 hibiting the sale of intoxicants by a vote of 24 to 13 in the Senate, and 
 62 to 36 in the House. It was vetoed by the governor, and passed over 
 his objection by the same vote in the Senate, and by the loss of but one 
 vote in the House. This bill will go into effect the first day of next July, 
 at which time every saloon in the state will close its doors. A more dras- 
 tic bill to prohibit the manufacture of intoxicants in the state, which is to 
 take effect on January i, 191 o, was carried in both branches of the legis- 
 lature, and was passed again over the governor's veto, and is now a law. 
 
 1 From the Review of Reviews, May, 1909. Reprinted by permission. 
 
358 AMERICAN STATE GOVERNMENT 
 
 In South Carolina each county ha\-ing a dispensary will vote on the 
 question of option between the county dispensary and prohibition in 
 August of this year. 
 
 Thirt3'-six of the 46 counties of Florida, including 525,000 of the 
 650,000 of population, have abolished the saloon. There are only 330 
 saloons in the entire state, and from the organization of the present 
 legislature it seems probable that state-wide prohibition will be adopted 
 at once. 
 
 Louisiana has more than 32,000 square miles of " dry " territory, and 
 6 entire parishes were placed in the antisaloon license column during 
 the past year. 
 
 Fifty-nine out of the 79 counties of Arkansas are '"dry," and 1,612,000 
 of the 1,750,700 of the people in the state are living in territory where 
 the drink traffic is forbidden. There are only 317 saloons in the whole 
 state left, which must give way to the inevitable public verdict against 
 the business. 
 
 During the past year 800 saloons were driven out of Texas, and 15 
 new counties voted "no license." Of the 243 counties 150 are "dry," 
 66 part " wet," and 25 license the saloon. Two hundred thousand of 
 the 267,000 square miles of the state is "dry" territory, containing a 
 population of 3,000,000 people. State-wide prohibition will be a certainty 
 in the near future. 
 
 In Virginia during the past year 400 liquor places were put out of 
 business. Seventy-one of the 100 counties in the state have not a licensed 
 saloon. 
 
 The temperance people of West Virginia lost in their battle before 
 the Senate, which recently adjourned, losing two propositions : first the 
 amendment to the constitution, forbidding the manufacture and sale of 
 intoxicating drinks, and also one for county local option. There are 
 700,000 of the 1,200,000 people of this state who live in territory where 
 the saloon is forbidden. Thirty-three counties out of the 55 in the state 
 are entirely " dry." 
 
 In Kentucky one more county has been added to the " dry " column, 
 making 96 out of the iig counties in the state. 
 
 Missouri has made decided progress during the past year. There are 
 now 50 "dry" counties in the state, including their municipalities, while 
 2 7 other counties have abolished the saloon under the county-option law, 
 which exempts cities of 2500 population and more from its operation. 
 
 Aggressive Campaigning in the Middle West 
 
 The fires of prohibition that have been burning in the cotton fields of the 
 South have crossed Mason and Dixon's Line and caught in the meadows, 
 the com fields and wheat fields of Illinois, Indiana, Ohio, and other north- 
 em states, and are burning as fiercely as they have been in the South. 
 
PROHIBITION 359 
 
 Illinois, the third state in the Union in wealth, population, and impor- 
 tance, never gave its people the benefit of a local-option law until last 
 year, when the people voted in 1300 towns, 1000 of which went " dry." 
 
 The temperance movement in Indiana is about as vigorous as in any 
 of the southern states. The Remonstrance law had cleared the saloon 
 from two thirds of the geographical area of the state. Of the 36,300 
 square miles of territory, 26,170 had been made "dry," and aljout 
 1,600,000 of the population out of the 2,600,000 were living in "dry" 
 territory. Governor Hanly called a special session of the legislature in 
 September last, which passed a local-option law with the county as the 
 unit, under which the people are making Indiana a prohibitory state as 
 rapidly as they can get to the polls. Under the old law 20 entire counties 
 had gone " dry." Since last autumn 43 more had joined their company, 
 making 63 of the 92 counties in the state which are entirely " dry," and 
 it is understood that but i county of all the 44 recently voting has gone 
 '" wet." 
 
 It is said that the local-option question got mixed up pretty badly in 
 Hoosier politics, some of the leaders claiming that Watson and the 
 Republican state ticket were beaten on that account. It is likely that the 
 Republican party would have been beaten very much worse if it had 
 undertaken to dodge the issue, which was inevitable. It is charged that 
 the liquor people beat Kearns for the senatorship, and that he, in revenge, 
 prevented the repeal of the local-option bill. But whatever hand the 
 temperance question played in the politics of the state, the people. Demo- 
 crats and Republicans, went on steadily voting the saloon out of business 
 in the state, and it now seems likely that Indiana may be the next state 
 of the North to adopt state prohibition. 
 
 The revolution in Ohio is just as marked as in Indiana, and just as 
 enthusiastic as in any of the southern states. The Antisaloon League, 
 which was born in that state, removed the saloon from large districts in 
 the state by one form of local option or another, but a local-option bill 
 for the county as the unit was passed by the legislature, under whose 
 provisions voting has been going on since last autumn, with results that 
 have startled the nation. The saloon had been removed from 5 entire 
 counties under the previous laws, but since last September 63 counties 
 have voted on the subject, 58 of which have abolished the saloon, and 
 only 9 counties have licensed it ; so that, of the 88 entire counties of the 
 state, 63 have gone " dry " and 9 have gone " wet." Many of the contests 
 were notable, especially the one in Clark County, which contains Spring- 
 field, with a population of 42,000, polling a vote of almost 19,000 votes, 
 which went "dry" by 139 majority. The legislature this year passed 
 two laws strengthening the local-option law ; one preventing agents from 
 soliciting orders for liquor in " dry " territory, the other providing for the 
 appointment of secret-service men in each county in the state to assist 
 the prosecuting attorney in securing evidence of the illegal sale of liquor. 
 
36o AMERICAN STATE GOVERNMENT 
 
 These measures were desperately fought by the liquor men, who were 
 finally overcome. 
 
 One year ago there was but one county entirely " dry " in the state 
 of Michigan. Early last month, after one of the fiercest fights in the 
 history of the state, local-option elections were held in 27 counties, 20 of 
 which went " diy," closing at one stroke 600 saloons and 10 breweries. 
 
 After a tremendous struggle the Nebraska legislature at its last session 
 passed the Daylight Sale bill, permitting the sale of liquor only between 
 the hours of 7 a.m. and 8 p.m. 
 
 The legislature of Iowa on the e\-e of adjournment passed two bills 
 unfriendly to the liquor interests, one limiting the number of saloons to 
 I to 1000 of the population in cities, the other requiring druggists to file 
 with the auditor of the county signed applications for liquor. 
 
 The state of Washington has just passed a county-option law, ex- 
 cluding municipalities of 2500 or more, which have a separate option of 
 their own. 
 
 The legislature of Idaho has this year passed a very strong local- 
 option law. 
 
 Both branches of the legislature of Utah passed a county-option bill, 
 but just at the last of the session, when too late for a remedy, the 
 governor vetoed the bill. 
 
 Prohibition was the main issue in the municipal elections held in Colo- 
 rado, outside of Denver, early in April. The antisaloon party generally 
 was successful. 
 
 Local Option in New \'ork and New England 
 
 A local-option bill for cities as a whole is pending before the New 
 York state legislature. The present liquor law of the state permits local 
 option for towns, under which elections have been held this year, result- 
 ing in a net increase of 30 " dry " towns. About 330 towns in the state 
 are "dry," about 320 " wet," and the rest are part " wet " and part "" dry." 
 The Committee of Fourteen introduced a bill at Albany, providing among 
 other things for the opening of saloons in cities of the first class certain 
 hours on Sunday, which was promptly killed in the Senate Committee. 
 Yates County, by a vote on February 23, carried all the towns in its 
 territory against the saloon, and became the first and only entirely ■' dry " 
 county in the state. 
 
 Recent elections in Connecticut have abolished the liquor traffic from 
 3000 square miles of territory, closing 300 saloons during the year. 
 
 Massachusetts has gained 10 municipalities for the " dry" column. 
 
 During 1908, 429 saloons were driven out of Rhode Island. 
 
PROHIBITION 361 
 
 Important Federal Legislation 
 
 For several years the temperance people have undertaken to secure 
 an amendment to the Interstate Commerce law, forbidding the importa- 
 tion of intoxicating liquors into territory made " dry " by state legislation, 
 and have failed. On February 17 last there was incorporated into the 
 penal code of the United States the Interstate Liquor Shipment bill, 
 introduced by Representatives Humphreys, of Mississippi, and Miller, of 
 Kansas. It is considered by many the most important temperance legis- 
 lation since the passage of the Wilson law in 1890. This bill does three 
 things: (i) it prohibits C.O.D. shipments; (2) it prohibits delivery to 
 fictitious consignees ; (3) it requires that all packages of liquor for inter- 
 state shipment shall be plainly marked, designating the contents and 
 consignee. The bill was in grave danger and would have been killed in 
 the committee, had it not been that Speaker Cannon obstinately demanded 
 its passage and then voted for it upon the floor. This law, while it will not 
 do all that the friends of temperance might desire, will go a long way 
 toward correcting the abuse that the liquor dealers have practiced upon the 
 citizens of the states that have prohibited the drink traffic, and will pave 
 the way for further relief which the people of the states may demand in 
 the future. 
 
 The Saloon " Fighting for its Life " 
 
 Almost all of the legislatures meeting during the present year have 
 had bills relating in some way to the liquor traffic. Very few of these 
 bills showing any friendliness to the saloon have been allowed to become 
 laws. A recent editorial in Bonfort's Wine and Spirit Circular, written 
 by T. M. Gilmore, the president of the National Model License League, 
 expresses the opinion of many liquor dealers upon the present temperance 
 revolution. It says : 
 
 The Antisaloon League is backed by able men and plenty of money. In the 
 last eighteen months the business we represent has been outlawed in the states 
 of Oklahoma, Georgia, Alabama, Mississippi, North Carolina, and Tennessee, 
 and it is now facing destruction in West Virginia, Texas, Kentucky, Arkansas, 
 Utah, and Idaho. The saloon is fighting for its life in practically every state 
 in the Union. 
 
 The liquor dealers strenuously insist that " prohibition does not pro- 
 hibit," and their literature, which is scattered broadcast among the church 
 people as well as others, claims the failure of the prohibitory laws in the 
 states having them. They insist that the more the traffic is prohibited, 
 the more liquor is consumed, and that hypocrisy and disrespect for law 
 are fostered ; and yet the states that have adopted prohibition seem to be 
 very well pleased with their legislation, and none of them have surrendered 
 to license, and other states in pretty rapid succession are joining their ranks. 
 
362 AMERICAN STATE GOVERNMENT 
 
 In Maine, Kansas, and North Dakota, at their last election, governors 
 were chosen on platforms not only declaring for state-wide prohibition, 
 but for a rigid enforcement of the prohibitory law; while in Georgia, 
 Oklahoma, and Alabama the antisaloon forces have held their own, 
 preventing legislation which would in any way weaken the state pro- 
 hibitory laws. 
 
 Strength of the Economic Argument 
 
 No great result can come from a small cause. There are powerful 
 causes that are putting the saloon out of business. More and more the 
 economic argument is influencing voters to abolish the saloon. The man 
 who frequents the saloon is not so strong in body, nor intellectually so 
 keen, nor professionally or industrially so efficient as the man who does 
 not. A man who has no scruples on the subject, but has good common 
 sense, soon discovers that he is handicapped in the heated competition 
 of life when he becomes a patron of the saloon. 
 
 The New York Central, the Lackawanna, the Pennsylvania, the Balti- 
 more and Ohio, the Wabash, the Rock Island, the Great Northern, and 
 other railroad systems have adopted the following rule r "" The use of 
 intoxicants by employees, while on duty, is prohibited. Their habitual 
 use, or the frequenting of places where they are sold, is sufficient cause 
 for dismissal." The Michigan state law will not permit a man who is 
 not a total abstainer to have anything to do with the running of trains. 
 The premium on temperance in railroad circles is so great that 25,000 
 employees of the Northwestern Railroad signed a pledge of total absti- 
 nence at one time. 
 
 Business houses generally discriminate against the drinker in the em- 
 ployment of men. The United States Commissioner of Labor sent a 
 note of inquiry to 7000 concerns employing labor; 5363 of them 
 responded that they took the drink question very much into account in 
 hiring men, and that they had to be the more careful in selecting respon- 
 sible help because the law held them liable for injuries caused by accident. 
 The young man of ambition and hope who wants to get into a good place 
 and succeed in it knows full well that he must stay away from the saloon. 
 This business argument sends hundreds of thousands of employees into 
 the ranks of those who are fighting the traffic. 
 
 The people paid last year a billion dollars for intoxicating drink, 
 $108,000,000 more than for all the necessaries of life, and it is a protest 
 against this colossal material waste, and a desire to divert some of the 
 drink money to better uses, that has prompted many to vote " no license " 
 in the campaigns. The billion dollars paid over the counter for drink for 
 the 'year is only about a half of the material damage the traffic causes, 
 requiring institutions to be maintained by the public. 
 
 The large amounts of money paid into the treasuries of states and 
 municipaUties by the liquor dealers are no compensation for the material 
 
PROHIBITION 363 
 
 as well as the moral waste in the community, and while there are many 
 friends of law and order who vote for license because they think the 
 saloon ought to be made to pay a part of the price of its public injury, 
 the people are getting to believe more and more each year that the dam- 
 age of the saloon is too great, and they are unwilling to tolerate it and 
 are voting " no " on the proposition to permit it. 
 
 The sentimental and moral argument for the removal of the saloon is 
 more powerful with the average voter in the " wet and dry " campaigns 
 than the economic one, strong as it is. 
 
 The liquor men have untold wealth at their disposal ; the ablest minds 
 in the nation are employed as their attorneys ; they have lobbyists at 
 the sessions of every state legislature and national Congress ; they have 
 politicians of both parties in every state and city who can be relied upon 
 to promote their interests ; they have an army of 200,000 saloon keepers, 
 and more than that of loyal patrons ; millions of dollars are spent in ad- 
 vertisements and in their literary department each year, and their fight 
 will be desperate and prolonged. But the self-interest and conscience of 
 the nation are against them, and unless there shall be some reformation 
 in the liquor traffic, which seems now impossible, or if there should occur 
 no disagreement or disintegration among the temperance forces now so 
 united, it is likely that within a generation the saloon, as we see it to-day, 
 will have passed away. 
 
VIII 
 ELECTIONS AND NOMINATIONS 
 
 THE MULTIFARIOUS AUSTRALIAN BALLOT ^ 
 By Philip Loring Allen 
 
 A standard political reference book is authority for the statement 
 that forty-two of the forty-six states of the American Union use the 
 Australian ballot in their elections. If this is true, then the election 
 machinery of Australia would seem to be quite as varied and remark- 
 able as the flora and fauna of that continent. As a matter of fact, the 
 expression " Australian ballot " is used here in two senses. In a re- 
 stricted sense it is applied to the particular form which America bor- 
 rowed from Australia, and which the state of Massachusetts led the way 
 in adopting in 1889. But it is also used to designate any secret ballot 
 printed and furnished by the state. In this broader significance it 
 is applied to forms which have scarcely another single characteristic 
 in common. 
 
 The plan of voting which was abolished in all but a few of the states 
 during the ballot-reform movement of the early nineties was substan- 
 tially that which most clubs and associations use for electing officers, and 
 corporations in choosing directors. A ballot was simply a piece of paper 
 bearing the names of the persons voted for and the various offices to be 
 filled. Anybody could print such ballots and persuade as many voters 
 as he could to cast his particular kind, though as a matter of course the 
 party organizations, prepared the vast majority of those voted. Three 
 southern states have never abandoned the old system and still allow the 
 casting of unofficial ballots, which may be " written or printed or partly 
 written and partly printed." The average Georgian or South Carolinian 
 deposited in November of 1906 a ballot prepared for him by the local 
 representative of the Democratic party, exactly as he may have cast 
 in one of the New York insurance company elections a ballot pre- 
 pared for him by the International Policyholders' Committee or his own 
 insurance agent. 
 
 The fact that most American voters were accustomed to voting a 
 whole party ticket at a single operation explains how the true Austra- 
 lian ballot came to be modified in this country. The ballot reformers 
 
 1 From North American Review^ May, 1910. Reprinted by permission, 
 364 
 
ELECTIONS AND NOMINATIONS 365 
 
 proposed a method by which a thick-and-thin Republican, for example, 
 should, on election day, vote first for a Republican governor, then for a 
 Republican lieutenant governor, then for a Republican Secretary of State, 
 and so on, until he finished his ballot by voting for a Republican pound- 
 master. It was very plausible for the politicians in communities accus- 
 tomed to the " vest-pocket ballot " to say : " No ; we like your plans for 
 a secret vote. We like your plans for purifying the polls and for insur- 
 ing a fair count. But we do not like your idea of scattering the nominees 
 of a party all over a blanket sheet. We will adopt your safeguards and 
 we will make the ballot official, but we will follow the form of our old 
 familiar party slips, simply arranging them side by side on a blanket 
 sheet like yours." 
 
 In John Fiske's " Civil Government," pubhshed in 1892, facsimiles 
 were printed of the new Massachusetts ballot and the adaptation of it as 
 used in Kansas. The former placed the candidates for each office within 
 a " box " or wide printed border by themselves, arranged in alphabetical 
 order, each followed by the name of the party nominating and a space 
 in which the voter was to make his " X " mark. The Kansas ballot, on 
 the other hand, assembled the names of each party's nominees, from the 
 highest down, in a column headed by the party name in large letters. 
 In all other respects the ballots were on an exact parity. No method 
 was provided for voting all the names in one of these party columns en 
 bloc. Just as in Massachusetts, the elector had to make his mark for 
 every candidate of his choice, whether these were all in the same column 
 or selected from several columns. The difference was then in typography 
 rather than in principle. 
 
 The real divergence came when the party-column ballot was again 
 modified by the addition of a circle or square at the head of each column, 
 by means of which a " straight ticket" could be voted at a single opera-_ 
 tion. The emblems which in many states have also been placed at the 
 head of the party columns, though often criticized, serve a perfectly 
 legitimate purpose as a guide to the illiterate. 
 
 Thus originated the two chief forms of ballots used in this country. 
 They are illustrated in Figures i and 2, which are not facsimiles of the 
 styles used in any states, but embody the characteristic features. The 
 first makes no concession to the party beyond designating the organi- 
 zation which placed each candidate in nomination. The smallest of minor 
 parties, by nominating a candidate named Abarbanell, gets his name in 
 the most conspicuous place. The district leader and the Good Govern- 
 ment Club member who wants, possibly, a Republican President, a 
 Democratic governor, an Independent district attorney and a Prohibi- 
 tion sheriff are put to precisely the same amount of time and trouble in 
 voting. The second form (Figure 2) is frankly partisan. " Most men are 
 adherents of some party," say the advocates of this ballot, "" and their 
 right to vote as they wish with the least possible trouble is paramount." 
 
366 
 
 AMERICAN STATE GOVERNMENT 
 
 This style of ballot always puts the man who goes outside a single-party 
 column at a disadvantage, — how much of a disadvantage depends upon 
 the rule for marking. To illustrate, in New York City four years ago 
 Mr. Jerome, an Independent candidate for district attorney, whose name 
 stood by itself in the last column of the ballot, was seeking votes among 
 the adherents of all three of the important city tickets. His supporters 
 
 FIGURE 1 
 
 Governor 
 
 
 Mark One 
 
 Charles T. Apgar 
 
 Prohibition 
 
 
 Samuel E. Briggs . .... 
 
 . . . Socialist 
 
 
 Arthur Fuller 
 
 Democratic 
 
 
 Henry Zabriskie . . 
 
 RepubUcan 
 
 
 
 Lieutenant Governor 
 
 
 Mark One 
 
 Howard Arnold 
 
 Republican 
 
 
 Clarence P. Snyder 
 
 Socialist 
 
 
 George Van Derzee . . 
 
 . Prohibition 
 
 
 John W. Young 
 
 Democratic 
 
 
 The Massachusetts- Australian ballot. All candidates on an absolute equality. 
 
 FIGURE 2 
 
 Republican 
 O 
 
 Democratic 
 O 
 
 
 Governor 
 Henry Zabriskie 
 
 
 Governor 
 Arthur Fuller 
 
 
 Lieutenant Governor 
 Howard Arnold 
 
 
 Lieutenant Governor 
 John W. Young 
 
 
 Secretary of State 
 Edward Marshall 
 
 
 Secretary of State 
 Steven Byrne 
 
 
 State Treasurer 
 
 S. Frederick Crocker 
 
 
 State Treasurer 
 Timothy Gregg 
 
 Essential features of party-column ballot as used in nearly half of the states, 
 including New York. 
 
ELECTIONS AND NOMINATIONS 
 
 367 
 
 claimed that a mark in any one of the straight-ticket circles and an 
 additional mark opposite Mr. Jerome's name was a legal vote for him 
 and also for all the candidates in the chosen-party column except the 
 nominee for district attorney. Tammany contended, however, up to the 
 eve of election, that the only legal way of splitting a ticket was to mark 
 every favored candidate separately. If the Jerome nominators were 
 correct, and the party circle was for the use of split-ticket as well as 
 straight-ticket voters, then two marks would be enough to vote for 
 Jerome and one of the party tickets. If Tammany was right, — and the 
 rule for which it contended prevails in several states, — then the same 
 vote would require the marking of sixteen names. By no construction 
 
 FIGURE 3 
 
 To vote a straight party ticket, write within the blank space immediately here- 
 under the name of the party you wish to vote for. 
 
 I hereby vote a straight ticket except where 
 
 I have marked opposite the name of some other candidate. 
 
 If you have voted a straight ticket above and place a cross mark { X ) opposite 
 any name below, such cross mark ( X ) will be counted for that candidate, and the 
 vote cast for the candidate on the straight ticket for the same office will not be 
 counted, etc. 
 
 For Governor ^°'^ ^°' 
 
 One 
 
 Charles T. Apgar 
 
 Prohibition 
 
 
 Samuel E. Briggs 
 
 Socialist 
 
 
 Arthur Fuller 
 
 Democrat 
 
 
 Henry Zabriskie 
 
 Republican 
 
 
 For Lieutenant Governor One°'^ 
 
 Howard Arnold 
 
 Republican 
 
 
 Clarence P. Snyder 
 
 Socialist 
 
 
 George Van Derzee 
 
 Prohibition 
 
 
 John W. Young 
 
 Democrat 
 
 
 The Colorado plan. In the election contest of 1904 experts testified that they 
 could identify individual " secret " ballots by the handwriting in which the party 
 name was inserted. " 
 
368 AMERICAN STATE GOVERNMENT 
 
 of the law, however, could a Jerome voter be put on an exact equality 
 with the strict partisan. 
 
 These are the differences between the " reform " ballot and the 
 avowedly partisan sort. There exists, however, a third class of ballots 
 which are neither one thing nor the other, and these are in some respects 
 the most interesting of all. Wherever there has been popular confusion 
 between the essentials and the nonessentials of ballot reform, politicians 
 have taken advantage of that confusion to pass laws granting the shadow 
 and not the substance. They want to discourage straying from the party 
 fold. Consequentiy they want to continue the premium on perfect regu- 
 larity. It may be that civic organizations are demanding the adoption of 
 a nonpartisan ballot. " What is it you want ? " ask the politicians. Sup- 
 pose the reformers answer as follows : " Abolish the party column. 
 Abolish the party emblem. Place all candidates' names under the various 
 offices. Arrange them in alphabetical order. Nothing less will satisfy 
 us." Every one of these things may be granted without really conced- 
 ing anything of value to the Independents if only a few modifications in 
 the interest of " convenience " may be made at the same time. Pennsyl- 
 vania and Colorado afford excellent examples of ballots made in this 
 way. Pennsylvania uses the Massachusetts ballot, the " pure Australian 
 type," with only the addition of a set of party squares at one side of 
 the sheet. This does not look in the least like the New York ballot, yet 
 the straight-ticket voter is favored in just the same way by being relieved 
 entirely of the necessity for scrutinizing and marking separately his various 
 candidates. In Colorado (Figure 3) the same result has been secured in an 
 even more original fashion. This state also has what looks like a model 
 ballot, but it is robbed of its virtue by the printed line at the top which 
 
 makes the voter declare: " I hereby vote a straight ticket, except 
 
 where I have marked opposite the name of some other candidate." 
 
 It has thus been easy to devise official ballots which, with the general 
 appearance of the pure Australian form, possess none of its advantages. 
 But this has not been the only opportunity of the ballot tinkers. They 
 can also turn out a party-column ballot which does not possess even the 
 good qualities of that openly partisan instrument. In all the forms thus 
 far mentioned the voter has the privilege, under some regulations, of 
 voting for any candidate named on the ballot by simply making a mark 
 opposite that candidate's name. Even this privilege can be taken away, 
 however. The Maine ballot (Figure 4) illustrates how it may be done. 
 It wiU be noticed that, while there is a huge party square at the head 
 of each column, there are no small marking spaces opposite the indi- 
 vidual names. This is because the Maine law permits no skipping from 
 one column to another. The voter designates whichever column he 
 pleases, but all his voting must be done in that column. The name of 
 Stokes may be next to that of Freeman, but if the man who has marked 
 in the Republican square wants a Democrat for sheriff, he must erase 
 
ELECTIONS AND NOMINATIONS 
 
 369 
 
 Freeman's name and insert Stokes's just as if it were not on the ballot 
 at all. In spite of the use of the blanket sheet, the process of ticket 
 splitting is here exactly the same as in the states like Missouri, where 
 there is a separate official slip for each party, and the voter, having 
 chosen one slip, must alter it, if he prefers some candidate of another 
 party, by " pasters " or the writing in of the name. 
 
 From ballots designed to make difficult the voting of any but a 
 straight party ticket, it is a natural step to ballots designed to make 
 difficult the voting of any but one particular party ticket. In this direc- 
 tion also American ingenuity has done much with the primitive Austra- 
 lian form. The party emblem has been mentioned as a legitimate aid to 
 the illiterate voter. Its absence is equally an aid to the party which has 
 the larger proportion of members who can read and write. Maryland, a 
 state which has a large negro population and no educational qualifica- 
 tion for voting, has the pure Massachusetts ballot, alphabetical order 
 
 FIGURE 4 
 
 Republican 
 
 Democrat 
 
 For Governor 
 Henry Zabriskie of Rockland 
 
 For Governor 
 Arthur Fuller of Saco 
 
 For Representative to Congress 
 Levi G. Hinds of Kennebunkport 
 
 For Representative to Congress 
 Peter A. Ferguson of Berwick 
 
 For Clerk of Courts 
 Nathaniel Hart of Eliot 
 
 For Clerk of Courts 
 William Perkins of Skowhegan 
 
 For Sheriff 
 Robert C. Freeman of Eastport 
 
 For Sheriff 
 T. Jefferson Stokes of Dill " 
 
 A party-column ballot which makes it as troublesome to split a ticket as if the 
 names of alternative candidates were not on the sheet at all. 
 
370 AMERICAN STATE GOVERNMENT 
 
 and all, except in eleven counties, where even the party designation is 
 dropped and the several candidates stand simply as individuals. Yet 
 this outwardly impartial arrangement is the much execrated " trick 
 ballot." Perfectly simple to any one who can read and write and knows 
 the names of the candidates he means to vote for, these styles have 
 been regarded simply as puzzles by the illiterate negroes and as subjects 
 for party trickery by many of the politicians. In 1904 nearly four thou- 
 sand Republicans mistook the square opposite the name of their first 
 presidential elector for the square which voted all eight en bloc, and on 
 this account forfeited the other seven presidential votes to the party 
 really in the minority. All manner of stories are told of the devices re- 
 sorted to under this perverted ballot law. The names of candidates have 
 been shuffled without warning so that the ignorant voter could not be 
 told to vote according to their position. Names have been printed in old 
 English and other unusual type. The "Repudiation" party was extem- 
 porized and put candidates in nomination in order to bewilder negroes 
 who had been laboriously taught to recognize the word "" Republican." 
 One Maryland Congressman is said to have established schools in which 
 negro voters were taught to recognize his Christian name, " Sydney," 
 by the two "ox yokes," — the y's, — and just as he had succeeded, 
 another " Sydney " was nominated against him by petition so there 
 would still be confusion. 
 
 The favorite plan for making one party vote sure and mixing up all 
 the others is simply to eliminate all emblems and designations and then 
 place the chosen party's nominees in every instance first. It then 
 requires neither intelligence, literacy, nor care to vote that ticket. All 
 three are needed to vote any of the others. As an extreme example, the 
 official ballot used in Florida at the last presidential election (Figure 5) 
 may be cited. There were five presidential electors then to h& chosen 
 and four parties made nominations. The names were printed in small 
 type, one below the other, with no mark whatever to indicate where one 
 party's group ended and the next began. It was easy for a Democrat 
 to put crosses opposite the first five, but the Populist had to begin with 
 number eleven and check to number fifteen inclusive. Nearly half the 
 Populists and Socialists in Florida and about one fifth of the Republicans 
 failed to mark their electors correctly as a result of this blind arrangement. 
 
 Given the complete election returns of ten or twenty or thirty states, 
 it would be perfectly possible, without any previous knowledge of the 
 several laws, to separate those using nonpartisan ballots from those using 
 partisan ballots. The latter would show in almost all cases a uniformity 
 which is the delight of the party manager. The total vote for one office 
 is almost the same as the total vote for every other office. Add together 
 the figures for all the Republican candidates for the assembly and you 
 have very nearly the Republican vote for governor. Only some very 
 strong motive will produce any wide discrepancy between the pluralities 
 
ELECTIONS AND NOMINATIONS 371 
 
 FIGURE 5 
 
 OFFICIAL BALLOT 
 
 General Election, Nov. 8th, a.d. 1904 
 
 Precinct No. 12, Leon County, Florida 
 
 Make a cross mark ( x ) before the name of the candidate of your choice 
 
 Vote for One 
 
 For Representative in Congress 
 3d Congressional District 
 
 William B. Lamar 
 
 Geo. R. Smith 
 
 Lambert M. Ware 
 
 Vote for Five 
 
 Presidential Electors 
 H. P. Bailey 
 
 J. E. Grady 
 
 T. A. Jennings 
 
 A. B. Newton 
 
 F. B. Stoneman 
 
 C. F. Buffman 
 
 A. E. Dole 
 
 Daniel L. McKinnon 
 
 Thomas R. Moore 
 
 Geo. K. Robinson 
 
 Alonzo P. Baskin 
 
 J. S. Whitney 
 
 E. D. Baker 
 
 Geo. W. Holmes 
 
 G. A. W. Wendell 
 
 A. V. Putman 
 
 M. F. Zeller 
 
 WiUiam R. Shields 
 
 A. M. Cushman 
 
 John M. Stanley 
 
 
 
 Vote for One 
 
 For Governor, State of Florida 
 Napoleon B. Broward 
 
 W. R. Healey 
 
 M. B. Macfarlane 
 
 
 Part of Florida ballot in 1904, when nearly half of the Populist and Socialist 
 voters failed to mark their presidential electors correctly. 
 
372 AMERICAN STATE GOVERNMENT 
 
 of candidates on the same ticket. In states of the other class all manner 
 of fluctuations will be found, irregularities that correspond exactly to 
 the \ariations of popular feeling and interest. A popular candidate with 
 a good record will run, as a rule, considerably farther ahead of an un- 
 popular colleague with a bad record than he will in the states using the 
 party circle. Not so many electors will vote on the unimportant offices 
 as on the important. 
 
 It is in such a comparison that the real affinities of the " compromise " 
 ballots here described betray themselves. A ballot of the party-column 
 st)'le, but without the party circles, such as Kansas abandoned but Mon- 
 tana has still, affects the returns in just the same way as that of Massa- 
 chusetts. On the other hand, when an " alphabetical " ballot has had 
 party circles added, the statement of vote will present just the same 
 parallelisms and equalities which indicate the workings of the familiar 
 party-column t)'pe. 
 
 There are several state legislatures in which ballot reform is a promi- 
 nent issue. In every one there will doubtless be a proposal to adopt the 
 pure Australian ballot. Then will arise some one to say : " Give us 
 perfect equality between the independent voter and the party man by 
 all means, but do it by making it easier to vote a split ticket, not harder 
 to vote a straight one." As a piece of practical advice this familiar 
 counsel is altogether meaningless. If Mr. A wants to vote for a single 
 candidate outside his own party, he cannot, under any conceivable ballot 
 law, express his purpose with less than two marks, and so long as he 
 must make two marks, he is not on an equality with- Mr. B, who can 
 vote his ticket with one. If only the absolute and not the relative con- 
 venience of voting is to be considered, it may be admitted at once that 
 the party-column ballot which Governor Hughes advised the legislature of 
 New York to abolish makes it as easy to split a ticket as any form that 
 can be devised. The only trouble is that it makes straight-ticket voting 
 still easier. If equality between them is worth securing, it can be practi- 
 cally secured by taking away the straight-ticket circles, whether the ballot 
 that is left has the group by offices or the party column, emblems or no 
 emblems. 
 
 THE SHORT BALLOT ^ 
 
 (a new plan of reform) 
 By Richard S. Childs 
 
 Do you know that ours is the only habitually misgoverned democracy ? 
 Other democracies, Canada, and the English, French, and German cities, 
 are generally well governed, many of them splendidly governed. Their 
 councils and legislatures stay clean for decades automatically without 
 need for public uprisings to clean them out. True, they sometimes suffer 
 1 A pamphlet published by the Short-Ballot Association. 
 
ELECTIONS AND NOMINATIONS 373 
 
 from graft, but it is local, haphazard, and unorganized, like graft in busi- 
 ness life. But with us misgovernment is universal and ever present. 
 Every state and every city is constantly at war with it. The brand-new 
 city of Gary will begin to grapple with it as soon as there is an election. 
 And the success of the forces of righteousness is always temporary, like 
 sweeping back flooding water with a broom. We say truly, "A reform 
 administration is never" reelected." Good administration is actually ab- 
 normal in American cities and states. Maladministration is the normal. 
 
 This condition, unique among democracies, indicates the existence of 
 some peculiarity in our system of government as the underlying cause. 
 
 Starting at the broad base of our structure, the voters, we notice one 
 unique phenomenon which is so familiar to us that we usually overlook 
 it entirely ; that is, our- habit of voting blind. Of course intelligent citizens 
 do not vote without knowing what they are doing. Oh, no ! You, Mr. 
 Reader, for instance, you vote intelligently always I Of course you do 1 
 
 Confidential Census 
 
 Do you know the name of the new state treasurer just elected ? Yes, 13% 
 
 Do you know the name of the present state treasurer ? Yes, 26% 
 Do you know the name of the new state assemblyman for this 
 
 district ? Yes, 30% 
 
 Do you know the name of the defeated candidate for assembly- 
 man in this district ? Yes, 2WJo 
 
 {Knew both of above, 16%) 
 
 Do you know the name of the surrogate of this county ? Yes, 35% 
 
 Do you know the name of your alderman ? Yes, 1S% 
 
 Do you know whether your alderman was one of those who 
 
 voted against the increase in the police force last year .' Yes, 2% 
 
 Are you in active politics 1 Yes, 4% 
 
 The intelligence (.') of the "three-story-brown-stone-house vote" in the 
 most independent assembly district in Brooklyn. Data collected immediately 
 after election, 1908. 
 
 This unique and incurable ignorance of the American voter is the raison 
 d'iire of " machine " politics. 
 
 In other democracies (England, Canada, etc.) there are but few elective 
 officers, and every voter knows them all. There is no such ignorance, hence 
 no "machine" rule, no "ward politicians,'' and no organized corruption. 
 
374 AMERICAN STATE GOVERNMENT 
 
 But whom did you vote for for surrogate last time ? You don't know ? 
 Well then, whom did you support for state auditor ? for state treasurer ? 
 for clerk of the court? for supreme court judge? And who is your 
 alderman? Who represents your district at the state capitol ? Name, 
 please, all the candidates you voted for at the last election. Of course 
 you know the president and the governor and the mayor, but there was 
 a long list of minor officers besides. Unless you are active in politics I 
 fear you flunk this examination. If your ballot had by a printer's error 
 omitted the state comptroller entirely, you would probably not have 
 missed it. You ignored nine tenths of your ballot, voting for those you 
 did know about and casting a straight party ticket for the rest, not 
 because of party loyalty, but because you did not know of anything 
 better to do. You need not feel ashamed of it. Your neighbors all did 
 the same; ex-President Eliot of Harvard, the "ideal citizen," confessed 
 in a public address recently that he did it too. It is a typical and uni- 
 versal American attitude. We all vote blind. Philadelphia has even 
 elected imaginary men. The intelligence of the community is not at 
 work on any of the minor offices on the ballot. The average American 
 citizen never casts a completely intelligent vote. 
 
 This is not all the fault of the voter. To cast a really intelligent ballot 
 from a mere study of newspapers, campaign literature, and speeches is 
 impossible, because practically nothing is ever published about the minor 
 candidates. And this in turn is not always the fault of the press. In 
 New York City the number of elective offices in state, city, and county 
 to be filled by popular vote in a cycle of four years is nearly five hun- 
 dred. In Chicago the number is still greater. Philadelphia, although 
 smaller than either city, elects more people than either. No newspaper 
 can give publicity to so many candidates or examine properly into their 
 relative merits. The most strenuous minor candidate cannot get a hear- 
 ing amid such clamor. And the gossip around the local headquarters 
 being too one-sided to be trusted by a casual inquirer, a deep working 
 personal acquaintance with politics, involving years of experience and 
 study, becomes necessary before a voter who wants to cast a wholly in- 
 telligent ballot can obtain the facts. 
 
 Plainly the voter is overburdened with more questions than he will 
 answer carefully, for it is certain that the average citizen cannot afford 
 the time to fulfill such unreasonable requirements. The voters at the 
 polls are the foundation of a democracy, and this universal habit of 
 voting blind constitutes a huge break in that foundation which is serious 
 enough to account for the toppling of the whole structure, provided we 
 can trace out a connection between this as a cause and misgovernment 
 as the effect. 
 
 No one will deny that if nine tenths of the citizens ignored politics 
 and did not vote at aU on election day, the remaining tenth would govern. 
 
ELECTIONS AND NOMINATIONS 375 
 
 And when practically all vote in nine-tenths ignorance and indifference, 
 about the same delegation of power occurs. The remaining fraction, 
 who do give enough time to the subject to cast an intelligent ballot, take 
 control. 
 
 That fraction we call "politicians" in our unique American sense of 
 the word. A "politician " is a political specialist. He is one who knows 
 more about the voter's political business than the voter does. He knows 
 that the coroner's term will expire in November, and he contributes 
 toward the discussion involved in nominating a successor, whereas the 
 voter hardly knows a coroner is being elected. 
 
 The pohticians come from all classes and ranks, and the higher intelli- 
 gence of the community contributes its full quota. Although they are 
 only a fraction of the electorate, they are a fair average selection, and 
 they would give us exactly the kind of government we all want if only 
 they could remain free and independent personal units. But the impulse 
 to organize is irresistible. Convenience and efficiency require it and 
 the " organization " springs up and cements them together. Good men 
 who see the organization go wrong on a nomination continue to stay in 
 and to lend their strength, not bolting until moral conditions become 
 intolerable. Were these men not bound by an organization with its 
 social and other nonpolitical ties, their revolt would be early, easy, and 
 effective, and every bad nomination would receive its separate and pro- 
 portionate punishment in the alienation of supporters. 
 
 The control of an active political organization will gravitate always 
 toward a low level. The doors must be open to every voter, — examina- 
 tion of his civic spirit is impossible, — and greed and altruism enter 
 together. Greed has most to gain in a factional dispute and is least 
 scrupulous in choice of methods. The bad politician carries more 
 weapons than the politician who hampers himself with a code of ethics 
 one degree higher. Consequently corruption finally dominates any 
 machine that is worth dominating and- sinks it lower and lower as worse 
 men displace better, until the limit of public toleration is reached and 
 the machine receives a setback at election. That causes its members to 
 clean up, discredit the men who went too far, and restore a standard 
 high enough to win, — which standard immediately begins to sag again 
 by the operation of the same natural principle. 
 
 Reformers in a nearsighted way are constantly endeavoring to main- 
 tain pure political organizations and reelect reform administrations. 
 Suppose, however, that the Citizens' Union of New York, which is at 
 present sincerely bent on improving the condition of politics, should 
 succeed in carrying the city for its tickets several times in succession. 
 After the first election, small political organizations which had aided 
 toward the victory would rush in, clamoring for their share of the plunder. 
 For a term or two the reformers might be able to resist the pressure. 
 
376 AMERICAN STATE GOVERNMENT 
 
 Nevertheless the possession of power by their part}' would attract the 
 grafters ^ ; they would find themselves accepting assistance from men 
 who were in politics for what there was in it, — men who wanted to use 
 the power and patronage that lay at hand unutilized, — and those men 
 would in time, working within the Union, depose the original heads of 
 the party and substitute "" more practical " leaders of their own kind, 
 untU in time the Citizens' Union would itself need reforming. 
 
 This was exactiy what happened to Tammany Hall, which was clean 
 at the beginning. 
 
 Theoretically there is always the threat of the minority party which 
 stands ready to take advantage of every lapse, but as there is no debate 
 between minor candidates, no adequate public scrutiny or comparison 
 of personalities, the minority party gets no credit for a superior nomi- 
 nation and often finds that it can more hopefully afford to cater to its 
 own lowest elements. In fact, it may be only the dominant party which 
 can venture to affront the lowest elements of its membership and nomi- 
 nate the better candidate. 
 
 The essence of our complaint against our government is that it repre- 
 sents these easily contaminated political organizations instead of the 
 citizens. Naturally! When practically none but the politicians in his dis- 
 trict are aware of his actions or even of his existence, the officeholder 
 who refuses to bow to their will is committing political suicide. 
 
 Sometimes the interests of the politician and the people are parallel, 
 but sometimes they are not, and the officeholder is apt to diverge along 
 the path of politics. An appointment is made, partly at least, to strengthen 
 the party, since the appointee has a certain following. A bill is considered 
 not on its simple merits but on the issue, " Who is behind it ? " " If it 
 is Boss Smith of Green County that wants it, whatever his reasons, we 
 must placate him or risk disaffection in that district." So appointments 
 and measures lose their original and proper significance and become mere 
 pawns in the chess game of politics which aims to keep '" our side " on 
 top. The officeholders themselves may be upright, bribe-proof men, — 
 they usually are, in fact. But their failure to disregard all exigencies of 
 party politics constitutes misrepresentative government, and Boss Smith 
 of Green County can privately sell his influence if he chooses, whereby 
 the public is in the end a heavy sufferer. 
 
 Thus the connection between the long ballot and misgovernment is 
 established : so long as we intelligent citizens, by voting the long ballot 
 blindly, continue to intrust large governing power to easily contaminated 
 organizations of political specialists, we must expect to get the kind of 
 government that will naturally proceed from such trusteeship. 
 
 Every factor in this sequence is a unique American phenomenon. The 
 
 1 Mr. Cutting, the head of the Union, announced, in anticipation of the 1909 municipal 
 election, that the Union did not desire a big enrollment on account of the inevitable con- 
 tamination it involved. 
 
ELECTIONS AND NOMINATIONS 
 
 in 
 
 long ballot with its variegated list of trivial offices is to be seen nowhere 
 but in the United States. The English ballot never covers more than 
 three offices, usually only one. In Canada the ballot is less commonly 
 limited to a single office, but the number is never large and includes only 
 offices that are of such importance as to attract close scrutiny by the 
 public. To any Enghshman or Canadian our long ballot is astonishing 
 and our blind voting appalling. A Swiss would have to live four hundred 
 years to vote upon as many men as an American undertakes to elect in 
 one day. The politicians as a professional class, separate from popular 
 leaders or officeholders, are unknown in other lands, and the very word 
 " politician " has a special meaning in this country which foreigners do 
 not attach to it. And government from behind the scenes by politicians, 
 in endless opposition to government by public opinion, is the final unique 
 American phenomenon in the long ballot's train of consequences. 
 
 The blind vote, of course, does not take in the whole ballot. Certain 
 conspicuous offices engage our attention and we all vote on those with 
 discrimination and care. We go to hear the speeches of the candidates 
 for conspicuous offices, those speeches are printed in the daily papers 
 and reviewed in the weeklies, the candidates are the theme of editorials, 
 and the intelligent voter who takes no part in politics votes with knowl- 
 edge on certain important issues. 
 
 In an obscure contest on the blind end of the ballot merit has little 
 political value, but in these conspicuous contests, where we actually com- 
 pare man and man, superior merit is a definite asset to a nominee. 
 Hence in the case of an obscure nomination the tendency is automati- 
 cally downward, but in a conspicuous nomination the tendency is upward. 
 
 Accordingly, while we elect aldermen who do not represent us, and 
 state legislatures which obey the influences of unseen powers, we are apt 
 to do very well when it comes to the choice of a conspicuous officer like 
 a president, a governor, or a mayor. For mayor, governor, or president 
 we are sure to secure a presentable figure, always honest and frequently 
 an able and independent champion of the people against the very interests 
 that nominated him. We are apt to reelect such men, and the way we 
 sweep aside hostile politicians where the issue is clear shows how power- 
 fully the tide of our American spirit sets toward good government when 
 the intelligence of the community finds a channel ; witness Roosevelt, 
 Taft, Hughes, Deneen, Folk, and a host of mayors. 
 
 The "town meeting" has often been pointed to as an instance of 
 democracy at its best. A village always governs itself in close accordance 
 with the desires of its people. New England selectmen are the finest 
 men in town. That is because every voter knows personally the charac- 
 ter of the candidates and elects with knowledge, registering his inde- 
 pendent personal opinion on every part of his ballot. Such an assemblage 
 could elect a hundred men at one sitting and do it well and wisely. It 
 comes outside the range of this discussion, but it illustrates the thith, 
 
3 78 AMERICAN STATE GOVERNMENT 
 
 that when the electorate is sufficiently informed to have an opinion on 
 personalities, that opinion is normally productive of good government. 
 
 The success in western states of the direct election of United States 
 senators is another proof of the principle that any conspicuous office 
 where the voters come to know their man is beyond the control of cor- 
 ruptive forces. 
 
 Washington, D. C, is governed by a board of three men appointed at 
 long intervals by the federal government. The inhabitants of the District 
 have no votes. Surely here is a place to find an inert bureaucracy con- 
 sulting its own comfort first and the people only by courtesy. But, on 
 the contrary, these three men, made conspicuous before the people by 
 their fewness and importance, are more sensitive to public opinion than 
 elected officers in other cities. 
 
 Sometimes there is rank misgovernment in a conspicuous office, as 
 when Van Wyck ruled New York City ; but, as is rather usual at such 
 times, a reform wave followed and his party was punished by a defeat 
 at the polls. Since then Tammany has temporarily conceded the con- 
 spicuous offices to the people, nominating thereto men of independent 
 character and even accepting two who had already been nominated by 
 the reformers. It has been content with graft from borough presidents, 
 the aldermen, and its friends in the lower grades of the departments. 
 
 Misgovernment is secure only in the minor offices, in the shadowy 
 places where the spot light of publicity rarely wanders. When the rats 
 venture out of these obscurities into the blazing light, it is to nibble the 
 cake cautiously, and always with timid eyes upon that dread giant, the 
 public, ready to scamper if he stirs. If, growing confident from long 
 immunity, they become too bold and noisy, punishment, clumsy but 
 heavy, suddenly swoops upon them. 
 
 And so in these conspicuous offices — those on which we do not vote 
 blind — we secure fairly good government as a normal condition, con- 
 sidering that the organized and skillful opposition which always faces 
 us occupies a position of great strategic advantage in possession of the 
 nominating machinery. 
 
 We cannot hope to teach or force the entire citizenship to scrutinize 
 the long ballot and cease to vote blind on most of it. The mountain will 
 not come to Mahomet ; Mahomet then must go to the mountain. We 
 must shorten the ballot to a point where the average man will vote intelli- 
 gently without giving to politics more attention than he does at present. 
 That means making it very short, for if it exceeds by even a little the reten- 
 tive capacity of the average voter's memory, the " political specialist " 
 is created. 
 
 A voter could remember the relative merits of probably about five sets 
 of candidates, and could keep that many separate contests clear in his 
 mind, but he would probably begin to vote blind on some of the names 
 if the number were more than five. Also we must take all unimportant 
 
ELECTIONS AND NOMINATIONS 
 
 379 
 
 ofifices off the ballot, since the electorate will not bother with such trifles 
 whether the ballot be short or not. Why indeed should fifty thousand 
 voters all be asked to pause for even a few minutes apiece to study the 
 relative qualifications of Smith and Jones for the petty ^looo-a-year post 
 of county surveyor? Any intelligent citizen may properly have bigger 
 business on his hands ! 
 
 To be pictorial, let us see how a revised schedule of elections might 
 look if we put into the realm of appointive offices as many as possible 
 of those which we now ignore. All country offices, many city positions, 
 and the tail of the state ticket would thus be disposed of and the ballots 
 might look something like this : (New York state titles) 
 
 First Year 
 
 Second Year 
 
 Third Year 
 
 Fourth Year 
 
 President and Vice 
 
 Governor, four years 
 
 Congressman, 
 
 State senator, four 
 
 President, four 
 
 
 two years 
 
 years 
 
 years 
 
 
 
 
 Congressman, two 
 
 State assemblyman. 
 
 Mayor, four years 
 
 State assemblyman. 
 
 years 
 
 two years 
 
 
 two years 
 
 City councilman, 
 
 
 City councilman. 
 
 
 two years 
 
 
 two years 
 
 
 This is merely organizing the state and city as simply as the federal 
 government. There is endless room for discussion on the details and 
 many other arrangements could be devised. This schedule provides for 
 every office which must be kept within the realm of politics. It provides 
 short ballots which every man would vote intelligently without calling on 
 a political specialist to come and guide the pencil for him. 
 
 On such a short-ballot basis the entry of our best men into public life 
 becomes possible. To-day the retired business man, for instance, who 
 is willing to devote his trained mind and proven executive ability to the 
 service of his city finds it difficult to enter public life even as a humble 
 alderman. He cannot win as an independent, for the voters do not dis- 
 tinguish his voice in the political hubbub. He must get his name on the 
 ticket of the dominant party, which can elect him, regardless of whether 
 he makes a fierce campaign or remains silent on every issue. In seeking 
 this nomination direct primaries will help him a little, but in the confu- 
 sion attending the making of nominations for a multitude of offices, he 
 is again unable to attract much attention, and the " machine," swinging 
 its solid blocks of well-drilled voters to the support of some loyal old-time 
 pillar of the " organization," is likely to defeat him, despite his manifest 
 superiority of character. His only hopeful resort is to go down into the 
 unfamiliar and uncongenial shaded underworld of ward politics, kotow 
 
o 
 
 So AMERICAN STATE GOVERNMENT 
 
 to district leaders and captains whose social and business standing is per- 
 haps inferior to his own, and satisfy their queries, "' What have you done 
 for the party ? " and " What will you do for us ? " Such procedure being at 
 least distasteful and probably stultifying, his activities turn toward philan- 
 thropies and recreations. The city has thus refused his proffered services ; 
 has turned away the man who considered the office as an opening for civic 
 usefulness, in favor of one who probably wanted it as a good job. 
 
 But if he be conspicuous as an important and almost solitary figure 
 before his prospective constituents, such a man can easily make the voter 
 listen and consider, and his superior merit will be an all-important asset 
 to him. The hostile politician who prates of " regularity " will find the 
 voter replying with facts regarding the personality and principles of the 
 candidate, and the discussion shifts to a new level. If the politician can 
 win over the voter on that level, well and good. That is leadership, not 
 bossism, and is unobjectionable. 
 
 After such an election this conspicuousness will continue, encouraging 
 good behavior in office. The legislator will fear public indignation, be- 
 cause his constituents, damning a measure, will also damn him specifically 
 for his part in it. Likewise, if deserving, he can get popular support 
 over the heads of any political coterie whom he ventures to disobey. 
 
 It may be objected that to take the minor offices off the state ticket, 
 for instance, and make them appointive by the governor would be giving 
 too much power to the governor. Well, somebody, we rarely know who, 
 practically appoints them now. There are other answers, but that one 
 is sufficient. 
 
 How an overdose of democracy creates oligarchy is illustrated in Tam- 
 many Hall, which would appear to be, in its form of internal government, 
 the most perfect democracy conceivable. But the primary ballot contains 
 from three hundred to a thousand names and bossism is thereby intrenched 
 absolute!)'. 
 
 Broadly speaking, the proposal to make a drastic reduction in the 
 amount of electing to be done is not a new idea historically, but is merely 
 a reversion to original principles. In the early days of the republic there 
 was no such multiplicity of elective offices as now, and until the thirties 
 there were no " machines " of the modern type and no professional poli- 
 tics. Then the wave of Jacksonian democracy swept the country with 
 a new and then unfeared doctrine of rotation in office. For the sake of 
 rotation many administrative offices were made elective, the ballots be- 
 came too long to be written by hand by the voter, — too long to be even 
 comprehended by the voter, — and the " political specialist " came into 
 existence as a necessary intermediary between the people and their officials. 
 
 Fighting misgovernment now is like fighting the wind. We must get 
 on a basis where the good intentions of the average voter find intelligent 
 expression on the entire ballot, so as to produce good government as a 
 normal condition, i.e. good government which regularly gets reelected as 
 
ELECTIONS AND NOMINATIONS 381 
 
 a matter of course by overwhelming majorities without a great fight. 
 Impossible in this country ? No. Galveston has it, with its government 
 by a Commission of Five. This commission has without scandal carried 
 through tremendous public improvements (raising the ground level to 
 prevent another flood), and at the same time has reduced the public debt 
 and the tax rate. That is good administration. More than that, it gets 
 reelected by overwhelming majorities and has not been in peril at any 
 election. The "" Old Crowd " that misgoverned this city for years holds 
 only 20 per cent of the vote now, and concedes without contest the 
 reelection of three of the five good commissioners. And the total 
 campaign expenses of electing the right men are only $350. 
 
 It has been thought that this was the fruit of correct organization, 
 analogous to a business corporation with its board of directors. But there 
 are many other elected commissions and boards in the United States, — 
 County Commissions, Boards of Education, Trustees of the Sanitary 
 District, Boards of Assessors, etc., — and they are not conspicuously 
 successful ; but, in fact, such organization often serves only to scatter 
 responsibility and shelter corruption. No I good government is entirely 
 a matter of .getting the right men in the first place. Nothing else is so 
 vital. No system, however ingenious, will make bad men give good 
 government or keep good men from getting good results. To get the 
 right men is, first of all, a matter of arranging for the maximum amount 
 of concentrated public scrutiny at the election. 
 
 Were it otherwise, we would find misgovernment in British cities, which, 
 except for this feature, are ideally organized from an American grafter's 
 point of view. The British city authorities are hampered most unjustly 
 by a hostile House of Lords, their machinery of government is ancient 
 and complicated, and their big councils, with committees exercising ex- 
 ecutive management over the departments, with ample opportunity for 
 concealment of wrongdoing, with no restraining civil-service examina- 
 tions, with one tenth of the laboring population on the municipal pay- 
 rolls, would apparently provide an impregnable paradise for the American 
 politician of the lowest type. But the ballot for an English municipal 
 election can be covered by the palm of the hand. It contains usually the 
 names of two candidates for one oflSce, member of the council for the 
 ward. (The council elects the mayor, the aldermen, and all other city 
 officers.) Blind voting on so short a ballot is hardly conceivable. Every 
 voter is a complete politician in our sense of the word. The entire intel- 
 ligence of the community is. in harness, pulling, of course, toward good 
 government. An American ward politician in this barren environment, 
 unaided by any vast blind vote, could only win by corrupting a plurality 
 of the whole electorate, a thing that is easily suppressed by law, even if 
 it were not otherwise a manifest impossibility. So there are no ward 
 politicians in England (nor in Canada), no professional politics, and 
 misgovernment is abnormal. 
 
o 
 
 82 AMERICAN STATE GOVERNMENT 
 
 Similarly, Galveston concentrated the attention of the voters sharply 
 upon candidates for only five offices, all very important. The press 
 could give adequate attention to every one, and in consequence every 
 intelligent voter in his easy-chair at home formed opinions on the vifhole 
 five and had a definite notion of the personality of every candidate. In 
 such a situation the ward politician had no function. There was no igno- 
 rant hiissczfciiiv, no mesh of detail for him to trade upon. He became 
 no more powerful than any other citizen, and his only strength lay in 
 whatever genuine leadership he possessed. Moreover, if he nominated 
 men who could stand the fierce limelight and get elected, they would, 
 ipso facto, probably be men who would resist his attempt to control them 
 afterward. Or if they did cater to him, it would be difficult to do his 
 bidding right in the concentrated glare of publicity where the responsi- 
 bility could be and, what is much more vital, would be correctly placed 
 by every voter. And so the profession of politics went out of existence 
 in Galveston and the ward politician who had misgoverned the city for 
 generations went snarling into oblivion. 
 
 The Galveston plan would be better yet if the commissioners were 
 elected one at a time for long terms in rotation. Then the public scrutiny 
 at election time would focus still more searchingly on the candidates and 
 merit would increase still further in value as a political asset. 
 
 " Politics," seeking reentrance into Galveston, would make depart- 
 ment heads, etc., elective ("' make them directly responsible to the people 
 and let the pee-pul rule "). 
 
 Suppose that they should increase the commission to thirty members 
 elected "at large," with variegated powers and functions. Straightway 
 tickets, cooked up by '" leaders," would reappear, and the voter, facing 
 a huge list of names, most of which he had hardly heard of, would 
 impotently " take program " and concede control to a little but active 
 minority, the politicians. 
 
 But suppose again that the enlarged commission be elected not "' at 
 large," but by wards, one member to a ward. The voter again has only 
 one decision to make instead of thirty. Newspaper publicity is weakened 
 by division, but this weakness is now repaired by neighborhood acquaint- 
 ance and the candidate's opportunity to make himself personally known 
 to a large portion of his constituency. Once more the voter registers 
 an opinion instead of blindly ratifying the work of a party organization. 
 The ward politician is again left without a function. His popularity may 
 avail in a slum ward and he may thus elect some of the commission, but 
 he will not have, from any citizen who is intelligent enough to do his 
 own thinking, that blind acquiescence which in other conditions had been 
 the bed rock of his power. 
 
 Just how we are to get rid of the great undigested part of our long 
 ballot is a small matter so long as we get rid of it somehow. Govern 
 a city by a big board of aldermen if you like, or by a commission as 
 
ELECTIONS AND NOMINATIONS 383 
 
 small as you dare make it. Readjust state constitutions in any way you 
 please. Terms of tenure in office can be lengthened. Many officers, now 
 elected, can be appointed by those we do elect. But manage somehow 
 to get our eggs into a few baskets, — the baskets that we watch. 
 
 For remember that we are not governed by public opinion, but by 
 public-opinion-as-expressed-through-the-pencil-point-of-the-average-voter- 
 in-his-election-booth. And that may be a vastly different thing ! Public 
 opinion can only work in broad masses, clumsily but with tremendous 
 force. To make a multitude of delicate decisions is beyond its coarse 
 powers. It can't play the tune it has in mind upon our complicated polit- 
 ical instrument ; but give it a keyboard simple enough for its huge slow 
 hands, and it will thump out the right notes with precision I 
 
 There is nothing the matter with Americans. We are by far the most 
 intelligent electorate in the world. We are not indifferent. We do want good 
 government. And we can win back our final freedom on a short-ballot basis I 
 
 NOMINATIONS BY DIRECT VOTE OF THE PEOPLE ^ 
 By Governor La Follette 
 
 Every established practice and custom which tends to impair in any 
 degree the citizen's right of suffrage subverts the principles of represent- 
 ative government and undermines the foundations of democracy. Scarcely 
 a score of years has passed since the sacredness of the ballot was made 
 a prominent issue in national campaigns, and, doubtless as a result, there 
 followed much of the legislation which effectively guards the casting and 
 counting of the ballot in the general elections. 
 
 It is a plain proposition that the right of suffrage is much broader and 
 more comprehensive than the mere physical act of casting the ballot with- 
 out interference, and having it returned, as cast, without fraud. All of 
 the guarantees of the constitution, all of the acts of legislation, are 
 designed to secure and record the will of the citizen ; to make it certain 
 that, untrammeled and uninterrupted, the influence of his judgment may 
 be felt in matters pertaining to government. If this be the real substance 
 of the right of suffrage, then it becomes an equally sacred obligation on 
 the part of the lawmaking power to so safeguard every step and proceed- 
 ing which constitutes any element of the right of suffrage that the citizen 
 shall be protected with respect to it. 
 
 When the voter enters the election booth to exercise that right, he finds 
 prepared for him an official ballot upon which is printed the candidates 
 of each party for the offices to be filled at that election. This is the first 
 point at which the citizen comes in contact with the perfect system of 
 laws governing general elections. From the moment he enters the booth 
 until the ballot which he casts therein is counted and returned, he can find 
 no cause for complaint. 
 
 1 From a message to the Wisconsin legislature, Januarj', 1903. 
 
384 AMERICAN STATE GOVERNMENT 
 
 But there are important proceedings, vitally essential to the right of 
 suffrage, which are foundational not only to manhood suffrage but to the 
 whole structure of government itself. What transpires back of the moment 
 when the voter receives his official ballot must be as strongly fortified 
 and as sacredly guarded as that which follows in the consummation of 
 this right after he receives the official ballot. In other words, the act of 
 suffrage consists not only in the voting and counting of the ballot, but in 
 e\'ery step and every proceeding which is in any way connected with or 
 involved in the preparation of that ballot before it comes to the hand of 
 the voter. 
 
 If by bad practices and bad laws all the proceedings which control in 
 the making of the ballot to be voted are taken out of the hands of the 
 voter, his right of suffrage is not only impaired but he has been deprived 
 of it. The voting of a ticket at the general election, in the making of 
 which he has had no voice, robs him of his voice in the election. He has 
 simply been an instrument in the hands of those who prepared the ballot, 
 in casting which he records not his will but their will. 
 
 The preparation of the ballot and the placing thereon of the names of 
 the candidates of the respective parties is therefore not a matter of sec- 
 ondary but a matter of primary importance to the exercise of the right 
 of suffrage. It is a matter of supreme importance to the establishment 
 of good government and to the protection of the basic principles of 
 democracy. 
 
 The right of suffrage then may be divided into two separate and distinct 
 transactions, each necessary as a complement to the other : first, all of 
 the proceedings, acts, and measures necessary to insure to each citizen 
 the right to vote directly, under the sanction of a law which shall protect 
 him from interference, in the selection of the men as the candidates of 
 his party to be voted for at the general election ; second, all of the pro- 
 ceedings so well provided for at the present time by statutes governing 
 the general elections. 
 
 The first step in suffrage is exercised in the selection or nomination of 
 the candidates of each party. The second step in suffrage is exercised in 
 the election of the candidate to office. Any interference with the citizen 
 in the exercise of his prerogative in either case is equally destructive to 
 his right of suffrage. 
 
 It is no longer open to dispute that the nomination of candidates for 
 office has in a very large measure passed out of the hands of the citizen. 
 For many years it has been popular, with certain theoretical writers upon 
 the subject, to place the responsibility for this entirely upon the citizen 
 himself, and to charge him with dereliction of duty and want of interest 
 in public affairs, absorption in business interests and pursuit of fortune 
 being assigned as primary causes of neglect of these elementary duties of 
 citizenship. But it is fair to say that the citizen always has manifested 
 the same willingness to participate in the affairs of government, to perform 
 
ELECTIONS AND NOMINATIONS 385 
 
 his duties in the elections, to serve in the rank and file of his party in 
 the campaigns, that he has to defend his country in the field when the 
 sterner duties of war summoned him in its defense. A close study of 
 the history of caucuses and conventions will convince any unbiased mind, 
 in search for truth, that the voter has been gradually eliminated as a 
 factor, after long, patient trial, because the delegate system has utterly, 
 failed to represent him or to reflect his opinion in its results. 
 
 Through the succession of generations human nature is the same, and 
 when De Tocqueville declared that " the most powerful, and perhaps the 
 only, means of interesting men in the welfare of the country is to make 
 them partakers in the government," he uttered a truth which applies quite 
 as forcibly to the primary step in suffrage as to the secondary step in 
 suffrage, — to the nomination of candidates as to their election after 
 nomination. And the interest and influence of the voter can be as well 
 and as certainly secured in the one as in the other, if the same means are 
 taken to guarantee to him the same certainty of result respecting the one 
 as the other. 
 
 No man enjoys being made a puppet of, and to rally to the caucus only 
 to have his effort defeated by a well-organized and well-disciplined minor- 
 ity, or, if delegates are chosen who seem to reflect the will of the 
 majority in the caucus, to discover later that, through the complicated 
 system of delegating and redelegating their authority, the nominations 
 finally made are the result of the dickers and deals and combinations and 
 commercial transactions which rule modern conventions. It would be 
 strange, indeed, if the citizen should continue to be interested in the pro- 
 ceedings of a system productive of such results. Abolish the laws which 
 now make elections an honest reflection of the will of the voter and intro- 
 duce the same elements of uncertainty and fraud which are an inherent 
 part of nominations through convention delegates, and the interest of the 
 citizen in the general election would fail as certainly as it has failed in 
 the preliminary. 
 
 It is not enough to say that the voter has his opportunity to attend 
 upon the caucus and express his choice as to delegates. This is to offer 
 the form of the thing for the substance. If the voter, time after time, 
 casts his ballot and elects the delegates of his choice, only to discover in 
 the end that he has been in some way betrayed, and the decision of the 
 majority in fact reversed, it is inevitable that he should as a serious- 
 minded citizen refuse further to participate in the farcial proceedings. It 
 is this that has driven the majority of the voters from the caucus until it 
 is only in times of profound public concern and intense public feeling 
 that even a respectable minority of the voters are represented in the 
 caucus and convention system. The largest attendance upon caucuses 
 in the history of political contests in Wisconsin resulted in polling less 
 than 40 per cent of those entitled to vote, and in many counties as much 
 as 90 per cent of the party vote failed to appear in the returns. 
 
386 AMERICAN STATE GOVERNMENT 
 
 Public interests are certain to fare badly when there exist conditions, 
 either as the result of legislation or for want of it, which eliminate from 
 participation in government a majority of the citizens in a democracy. 
 The evil consequences sure to follow from such a situation are twofold, 
 — in the effect upon the citizen and the effect upon the public official. 
 
 If the caucus and convention system operates to exclude a majority 
 of the voters from taking part in making the nomination, it abridges the 
 right of suffrage, it weakens the voter's interest and affection for the state, 
 it instills apprehension and suspicion with respect to that government 
 which the citizen comes more and more to feel is not his government, 
 and deprives the state of that loyalty and devotion which is nourished in 
 unification of interests born out of the largest measure of direct personal 
 participation possible in a representative democracy. This is but another 
 way of saying that the basic principle of democracy is personal respon- 
 sibility ; that there can be no personal responsibility unless the voters are 
 " partakers in the government." 
 
 Compelling the citizen to hand his sovereign right, — to vote directly for 
 the candidates of his choice, — over to some caucus delegate, to be turned 
 over to some convention delegate to barter for something for himself, 
 impairs the voter's right of suffrage, and its evil effects in representative 
 government are more strikingly manifest in the actions of the public offi- 
 cial than of the private citizen. 
 
 The official well understands that his nomination through convention 
 delegates invariably is secured without the consent of a majority of the 
 voters of his party, or, indeed, without the consent of even a fair minority 
 of his party. He well knows the value of the powerful influence of public- 
 service corporations through the caucus and convention, and this knowl- 
 edge bears strongly upon his official action. He reasons that under 
 ordinary circumstances the unlimited use of money, the support of pur- 
 chasable newspapers, the maintenance of perfect organization, all attain- 
 able through the vast resources of such corporations, will, under ordinary 
 circumstances, enable him to succeed in politics. 
 
 No man can have witnessed the protracted struggle in this state to 
 secure legislation equalizing the burdens of taxation, no man can have 
 witnessed the defeat of bills increasing the taxation of the railroads to 
 more nearly their justly proportionate share, and escape the conviction 
 that the present method of selecting candidates for office is radically 
 defective. It cannot be seriously doubted that under a system of nomi- 
 nations by direct vote of the people, their influence upon the official could 
 not fail to be very much more pronounced and direct. He would well 
 understand that in order to secure their approval and support to continue 
 him in public life, he must win that approval upon the merit of his record 
 in their service. He would know that every vote cast, every act as a 
 representative in aid of measures or opposed to measures affecting the 
 public interest, would be canvassed and reviewed when he came to seek 
 
ELECTIONS AND NOMINATIONS 387 
 
 renomination ; hence his record as a public official would be made day 
 by day with that sense of personal responsibility, arising from a knowl- 
 edge of direct and certain accountability to the people, pointing the way 
 he should go. 
 
 This is the one thing needful in a republican form of government, and 
 the one thing which cannot be dispensed with in any of the affairs of life 
 where one man performs services for another. No trust would be safe 
 unless the trustee knew that he would be required to render an account 
 of his stewardship to one having authority to terminate it. In no other 
 trust positions are the opportunities for evading responsibility so many 
 or the temptations for betrayal so great and the likelihood of confusing 
 and befogging the issue so favorable as in the public sei-vice. Hence it 
 is imperative that the trustee be required to account directly to those 
 whom he represents in the discharge of his trust. 
 
 This is the fatal defect in the caucus and convention system of select- 
 ing candidates to be elected to office. Even if men chosen as delegates 
 in the caucuses and conventions were never guilty of a willful and cor- 
 rupt betrayal of trust, if bargains and deals and bribery could be elimi- 
 nated, nevertheless the entire plan should be abolished because it removes 
 the nomination too far from the voter, the trustee too far from him for 
 whom he bears the trust, the agent too far from the principal. Every 
 transfer of delegated power weakens authority and diminishes responsi- 
 bility, until the candidate nominated represents nothing that the voter 
 wanted, feels under no obligation to the voter for his nomination, nor is 
 he directly accountable to him for his acts as a public official. 
 
 The momentous importance of discarding the delegate system and 
 securing the personal responsibility of the official to the citizen is rapidly 
 coming to be accepted through the country. Already legislation recog- 
 nizing the principle of nominating by direct vote of the people has been 
 applied in making nominations in a dozen different states, while the legis- 
 latures of twenty-two others have taken hold of the subject in an earnest 
 way within the last two years. The demand for direct nominations was 
 recognized in the platforms of both political parties in several states in 
 the recent campaign, and the progressive movement is commanding 
 strong support throughout the country. 
 
 To secure a more direct expression of the will of the people-in all things 
 pertaining to the people's government is the dominating thought in Amer- 
 ican politics to-day. The, citizen will no longer surrender to delegate, 
 agent, or substitute, any political control which he may properly exercise 
 for himself. He understands that in some matters pertaining to govern- 
 ment he must be represented by a public servant. The citizen is resolved 
 to participate directly wherever he can, and in all matters where he must 
 be represented by another, to bring that representative as near to him as 
 possible. The fundamental principle upon which this government was 
 established can no longer be subverted. No more striking manifestation 
 
3SS AMERICAN STATE GOVERNMENT 
 
 of this could be found than in the current volume of the Congressional 
 Record. For the first time in history the House of Representatives 
 passed, without one dissenting vote, and sent to the Senate a resolution 
 for the election of United States senators by direct vote. The spirit of 
 democracy is abroad in the land. Government is to be brought back to 
 the people. 
 
 The nomination of all candidates by direct vote under the Australian 
 ballot should appeal to the patriotism of all legislators and lift them above 
 partisan and personal prejudice, in a united effort to give the people of 
 Wisconsin a system of electing public officials truly representative of public 
 interests ; in restoring to the people in full measure this principle of pure 
 democratic government. This is required particularly of Republicans, by 
 e\'ery obligation which can be made binding upon the honor of the rep- 
 resentatives of any political party in the public service. 
 
 Since the adoption of the federal Constitution government in this 
 country has been through the agency of some political party. Political 
 parties are not organized or maintained upon the personality or strength 
 of individuals, but around certain deep-seated ideas which lay hold of the 
 convictions of men. These ideas when formulated and proclaimed be- 
 come the party's declaration of principles, its promise to perform. This 
 declaration of principles, this promise to perform, is of the highest impor- 
 tance to each citizen. When so proclaimed it enables him to determine 
 his party affiliation. He well understands that one political party or 
 another will control government, will make and administer the laws. 
 Hence he gives his support to that party which promises to do the specific 
 things that he regards of the highest importance to the state and to the 
 welfare of every citizen. The party promise, therefore, is a covenant 
 with the voter upon which he has staked his faith and his interests. He 
 has given his support, he has invested the party with his authority, he 
 has made it possible for the party to control in government. Upon its 
 promise and his support the party has become the custodian of his polit- 
 ical rights as a citizen, of his property right as a man. 
 
 But the party obligation goes still further. The obligation of the party 
 is made the more binding because it has sought out the citizen, urged 
 acceptance of its pledges, pressed them upon his consideration, pro- 
 claimed again and again its purpose to keep them in letter and spirit. It 
 has made the citizen its solicitor and secured his good offices to repeat 
 its promises, proclaim its principles, and enlist in its ranks his neighbors 
 and friends. Having received his vote, his influence, his devotion, the 
 party is bound to keep its pledged word. This is its title to confidence. 
 This measures its value as a power for good in representative gov- 
 ernment. 
 
 The party itself will not fail. Men in masses are not drawn together 
 in support of principles which endure the strain of protracted contest, 
 without fixed convictions. The party is the aggregation of citizens bound 
 
ELECTIONS AND NOMINATIONS 389 
 
 together by an agreement of opinion respecting the declared principles 
 of the party. They are for maintaining the principles and keeping faith 
 with one another. Fixed convictions are the foundations of good faith. 
 The party honor is safe with the party. It will not betray itself. 
 
 But the party must select men as its medium of expression in govern- 
 ment from the members of its organization and make them public officials 
 to execute the will of the majority. Upon the public official then there 
 falls the full weight of this double obligation. He represents the indi- 
 vidual citizen in person. He is the custodian of the party honor. He 
 cannot play fast and loose with clearly understood personal and party 
 obligations and maintain a semblance of official integrity. He has no 
 more moral right to quibble and evade, to say that he will perform a 
 part and repudiate some of the specific promises of the party, than he 
 would have to use in part trust funds committed to his keeping. If this 
 be counted too exact a standard of public duty to-day, be sure that it will 
 not be so regarded to-morrow. The citizen is being rapidly schooled by 
 experience throughout the entire country, and is fast acquiring definite 
 ideas of the right relation of the political party to government, of the 
 citizen to his political party, and the duty of the public official to the citi- 
 zen, to his party, and to the state. 
 
 If government in Wisconsin is representative, then the people of the 
 state have pointed the way for us with reference to the enactment of a 
 law for the nomination of all candidates by direct vote, as well as the 
 enactment of law that shall equalize the burdens of taxation. No ques- 
 tion has been more thoroughly presented and more intelligently passed 
 upon in any form of government. For years it had been discussed from 
 the platform and in the press of the state, until it became thoroughly well 
 understood in every community and every household. It was made the 
 subject of emphatic declarations in the platforms of both parties in this 
 state as early as 1898, the Democratic convention declaring in unequivocal 
 terms for the nomination of all candidates by direct vote ; the Republican 
 convention declaring for legislation which should give the citizen a more 
 direct expression of his will in the nomination of candidates for office. 
 
 Not a vote, however, was cast in the legislature of 1899 for the enact- 
 ment of a law giving the people the opportunity to select their candidates 
 by direct vote. 
 
 The discussion of this subject, so deeply interesting to the voters of 
 Wisconsin, continued, and the convention of the majority party in 1900 
 unanimously adopted a platform declaring for the nomination of all can- 
 didates by direct vote upon the same day under the Australian ballot. 
 Professing a want of confidence in the reliability of the declarations made 
 in a convention, expressing doubt whether such a declaration registered 
 the actual will of the voters represented in the convention, fearful lest 
 the demand as recorded was in fact only a recommendation, and the 
 recommendation in truth the result of misunderstanding, it was deemed 
 
390 AMERICAN STATE GOVERNMENT 
 
 justifiable to refer the entire subject again to the people of the state and 
 once more ask them to proclaim their will. 
 
 Since then e\ery phase of the question has been under consideration, 
 every objection has been urged with all the force and insistence which per- 
 fect organization and unlimited resource could furnish through newspapers, 
 pamphlets, letters, and personal appeals, and yet the voters of the majority 
 party, speaking their will through the only medium provided, declared 
 by platform resolutions their demand for the nomination of all their 
 candidates by direct vote, and ratified that demand by overwhelming 
 majorities in the late election. Imperfect though the caucus and conven- 
 tion be as a medium for registering the wishes of the voter, we come to 
 the determination of this question with no opportunity to put aside the 
 responsibility placed upon us by the unmistakable commands of those 
 who have commissioned us to represent them in public office. Upon every 
 phase of the question concerning which the people have spoken, if we 
 recognize the principle upon which our government is founded, we have 
 no discretion. With respect to every question not passed upon by the 
 people, we are authorized to exercise our best judgment in representing 
 their interests ; but when it has been proclaimed and proclaimed again, 
 so that there can be no possibility of doubt respecting their desire, to 
 ignore it, or to refuse to execute the expressed will of the majority legally 
 recorded, is to violate and trample under foot every principle of govern- 
 ment which makes the perpetuity of representative democracy at all 
 possible. 
 
 I submit, therefore, that it is not for us to determine what shall be the 
 scope of a law to nominate candidates by direct vote. This has been 
 settled by the people of \\'isconsin, to whom the matter has been referred 
 and referred again. They have determined that " all candidates for state, 
 legislative, congressional, and county officers shall be nominated at a 
 primary election upon the same day by direct vote under the Australian 
 ballot." 
 
 The voters of Wisconsin are an intelligent, thoughtful body of men. 
 They are entirely capable of passing upon the question and deciding for 
 themselves whether they desire the nomination of all or only a part of their 
 candidates by direct vote without the intervention or interference of any 
 delegates or conventions. They understand that if there is any reason 
 for their taking charge of the nomination of their own candidates for 
 office, that those reasons apply equally well to their taking charge of the 
 nomination of all their candidates for office. They understand that this 
 is particularly true of those candidates which have to do with the making 
 of the laws and with the execution and administration of those laws when 
 made. They realize that under our system the point where government 
 fails is always the point of attack where interests are conflicting. 
 
 The overbalancing control which the public-service corporation is ex- 
 erting in government to-day does not affect in any marked degree the 
 
ELECTIONS AND NOMINATIONS 391 
 
 performance of official duty on the part of county officers. And it will 
 reform no abuse in legislation, insure no better execution of the laws by 
 those charged with their execution and administration, to provide for the 
 nomination of county officers by direct vote ; but the influence and power 
 of such corporations is dangerously manifest in the making and execu- 
 tion of the laws, and in the defeat of legislation affecting the interests of 
 the state and the individual citizen as well. 
 
 Out of these existing and well-recognized conditions has grown the 
 conviction, gaining in strength year by year with the people of Wisconsin, 
 that the nominations of senators and assemblymen, of state officers and 
 members of Congress, by direct vote will insure a government where the 
 interests of the corporations and the citizens will stand upon a footing of 
 absolute equality. 
 
 If in the face of the demand which has come from the people of this 
 state again and again for a law that shall provide for the nomination of 
 all candidates by direct vote, there is to be opposition, it will come from 
 these great corporate interests. Whatever form it may take, in whatever 
 guise it comes, whatever strength it may manifest, behind it will be the 
 public-service corporations of this state. Realizing that the time is past 
 when this legislation can be wholly defeated, their effort may be directed 
 to limit, in so far as may be, the application and scope of the legislation, 
 impair the efficiency of the law as passed, and preserve as much of the 
 present system of making nominations through delegates as possible. 
 Their interests are best subserved through the caucus and convention, 
 and it has become an important function of their political departments to 
 control nominations through caucus and convention delegates, thus secur- 
 ing men who will, when elected, serve them without question. Hence 
 effort may be made to carry some portion of the present bad nominating 
 system past the present session of the legislature, in the hope that so 
 much of it as survives this biennial term may be indefinitely perpetuated 
 in the state. 
 
 The suggestion of such a proposition to a legislature, under such 
 specific instructions respecting a measure, serves to illustrate how lightly 
 those who make it regard the obligation of the public official, when 
 nominated by caucus and convention delegates, with respect to the 
 wishes of his constituents, or the promises upon which he was elected 
 to serve them. If such an attempt were to succeed, it could only 
 intensify the feeling and strengthen the purpose of the people of this 
 commonwealth to sweep from the statutes the last vestige of caucus and 
 convention legislation through which men can secure office only to 
 repudiate their political obligations and betray those who trusted them. 
 
 If such a course should be urged upon this legislature, it will be for 
 some measure that will leave the executive office of the state where 
 it may be within possible control of selfish private interests through 
 the delegate system of making nominations. The other state officers 
 
392 AMERICAN STATE GOVERNMENT 
 
 doubtless would be joined with the executive in such a proposition, but 
 it would be merely as a makeweight. Whatex'cr the purpose assigned, 
 domination in the executive office would be the real underlying object. 
 Legislation recentiy enacted in this state, and questions of great public 
 moment already pending, vastly increase the powers and responsibilities 
 of the executive. This office will be the point of vantage in setding 
 many of the important questions of taxation and the regulation of rail- 
 road rates during the next few years in Wisconsin. Through the execu- 
 tive office appointments upon the Tax Commission will be made from 
 time to time, as terms expire and vacancies occur. With the creation of 
 a state board of assessment to fix the value of the property of railroads 
 and other public-service corporations, the selection of its members will 
 be made through the executive office, in whole or'in part. Through this 
 office will be appointed, in part at least, members of that supremely 
 important commission to regulate transportation rates upon the railroads 
 of Wisconsin, which, I trust, the legislature will provide for before it 
 adjourns. 
 
 It becomes at once apparent, therefore, that the office of governor is 
 one in the filling of which special interests, and especially the railroads, 
 will more and more desire to exercise an influence as the years go by. 
 How effectually they can, in any ordinary contest for the gubernatorial 
 nomination, accomplish this, through the manipulation of convention 
 delegates, when they have many million dollars annually at stake, 
 requires no argument to maintain. How utterly impossible for them to 
 dictate nominations when made by direct vote of all the people under 
 the Australian ballot is demonstrated in the utter failure to control 
 elections by the use of money since the adoption of the Australian ballot 
 system of voting. 
 
 It thus becomes manifest that the executive should be nominated by 
 direct vote of the people. To limit the application of the primary-election 
 law to the nomination of members of the legislature would be to furnish 
 the people a lopsided and unbalanced system. It would nearly always 
 be possible for the executive, nominated by a system independent of the 
 will of the voters, to stop in the executive office any measure enacted 
 by the representatives of the people. And it may as well be understood 
 now that the question of taxation and the question of the regulation of 
 transportation rates, involving, as it does, the maintenance of commis- 
 sions appointed by the executive, intrusted with all the power under the 
 law, that to place the office of governor, through a nominating system, 
 where corporate wealth and power may turn the balance, would jeopard- 
 ize or set at naught the will of the majority on every question and on 
 every issue. 
 
 To enact the will of the people into statutory law requires the majority 
 action of Senate and Assembly and the approval of the governor. What, 
 then, will it avail if, in order to insure better government for the people. 
 
ELECTIONS AND NOMINATIONS 393 
 
 they are accorded direct control of the selection of their candidates in 
 the legislature by direct vote for their nomination, and are compelled to 
 leave the nomination of the chief executive of the state to a system in 
 which the influence of the public-service corporation is known to be 
 most potent ? 
 
 The same principle should be applied in congressional nominations. 
 Members of Congress directly represent the people upon questions of 
 supreme interest to them. The people should have the right to vote 
 directly for or against them in making nominations. Upon trusts, tariff 
 revision, a thorough regulation of interstate commerce by the Interstate 
 Commerce Commission, and many other questions, the public judgment 
 throughout the country is taking very definite form. Under a system of 
 direct nominations, including members of Congress, national legislation 
 in the popular branch of Congress will more nearly reflect the enlight- 
 ened judgment of the citizenship of this country. 
 
 These observations respecting the offices to be embraced in a primary- 
 election law are submitted as sufficient in reason for the complete and 
 thoroughgoing measure which it is assumed by the people of our com- 
 monwealth you will enact in good faith. They are submitted more par- 
 ticularly in anticipation of efforts that will be made by the representatives 
 of the public-service corporations again to defeat such legislation, or, 
 failing in that, to except from its provisions such officials as shall in the 
 end cause its purposes wholly to miscarry. Opposition to legislation 
 takes many forms. When defeated upon the main proposition it is 
 almost certain to attempt to destroy the practical application of the 
 principle, or to narrow its limitations, discredit its operation, and insure 
 its repeal as a failure. But the representatives of any interests who 
 would subvert the sovereign and expressed will of the people of this 
 state for the nomination of all candidates by direct vote must wholly 
 fail. However vigorous and sincere has been the opposition of members 
 of the legislature heretofore, it is one of the leading attributes of Ameri- 
 can character, as well as one of the fundamental principles of American 
 institutions, to accept the will of the majority when fairly and plainly 
 expressed. 
 
 Out of the experience of the last two years there has come to all men 
 higher ideals in public life, more clearly defined official obligation, and 
 the promise of a better public service. Nothing of official dignity has 
 been lost. The representative, concerning all matters upon which the 
 citizen has not acted and the party has not definitely instructed him, 
 will exercise his independent judgment in the discharge of his public 
 duty ; but he will show an increased regard for the will of the people 
 and for the pledges of his party that shall invest his office with added 
 respect and increased honor. So, too, shall political parties be strength- 
 ened in the confidence of the people and protect and fortify the principles 
 of representative government. 
 
394 
 
 AMERICAN STATE GOVERNMENT 
 
 The scope of a primary-election law having been determined by the 
 people, it becomes one of the most important duties which will devolve 
 upon the legislature so to formulate the promised measure as to carry 
 out in letter and spirit the expressed will of those who have chosen you 
 to represent them. This I am confident you will perform in the utmost 
 good faith, with a determination to place upon the statutes the best law 
 for the nomination of all candidates by direct vote which it is possible 
 to write. 
 
 Whatever may have been the attitude of any member respecting this 
 legislation, whatever misgivings he may have entertained touching the 
 wisdom of the substitution of the direct system of making nominations 
 for the delegate method, he may now feel that he is relieved from all 
 responsibility upon that question. This proposed legislation comes to 
 you from the hands of the people, the sovereign authority of this com- 
 monwealth, after repeated adoption, approval, and ratification, with all 
 the sanction in effect which a specific referendum could carry with it. 
 
 We are therefore in a fortunate position with respect to all past differ- 
 ences of opinion upon this subject, and can now join in discharging the 
 solemn obligations of a public trust more clearly defined than ever 
 before in the legislative history of this state. We can unite in an effort 
 to give the people of ^^'isconsin the most perfect statute which can be 
 framed in accordance with the instructions received from them. 
 
 MAJORITY NOMINATIONS 1 
 By Governor La Follette 
 
 As a part of the discussion of the subject of primary elections, in the 
 first message presented to the legislature, January, igoi, I called atten- 
 tion to the objection to nominating candidates by a plurality vote, and 
 suggested that provision could be made to enable the voter at the pri- 
 mary to indicate upon his ballot his first and second choice of the candi- 
 dates presented for each office. In the event that no candidate had . 
 received a majority of first-choice votes, then the second-choice votes 
 could be counted, resulting in a nomination by majority vote. 
 
 This suggestion was repeated to your honorable body in the annual 
 message in January of the present year, and your best thought invoked 
 upon the perfection of the primary-election law. 
 
 Since that time the statute has been given a trial. In the municipal 
 elections in 1905 it was tested for the first time. The practical trial of the 
 law resulted in its general approval throughout the state. The conten- 
 tion made for it by those who had advocated its adoption was justified. 
 Unbiased judgment everywhere approved the new method of making nom- 
 inations by direct vote. But the final test of every law is its execution. 
 
 1 From a message to the Wisconsin legislature, 1905. 
 
ELECTIONS AND NOMINATIONS 395 
 
 Whatever of honest criticism came out of the administration of the new 
 statute in the municipal elections was directed against that provision of 
 the law which admits of plurality nominations. It is to this section of the 
 statute that we should apply our best effort for correction. It is here 
 that the enemies of popular government will direct their attack. It is at 
 this point that an attempt will be made to take from the people this fun- 
 damental right of self-government which is involved in choosing their own 
 candidates for the public service. This will not be done openly by an 
 effort to repeal the law. It will be attempted indirectly, using it as the 
 pretext to return to the delegate system of making nominations. Fealty 
 to majority control in a democracy is very intense, and it will be urged 
 that majority nominations can only be secured through nominations by 
 delegates in a convention. Asserting that minority nominations are un- 
 American, the attack will be prosecuted under the guise of preserving 
 the majority principle in government. 
 
 Whether there is foundation for the assertion that an attempt is to be 
 made to break down the principle of nominations by direct vote of the 
 people will appear when this legislature makes the effort further to 
 perfect the law. 
 
 Whatever opposition there was to its enactment, every principle upon 
 which our government rests, demands that the law should now be given 
 a fair trial. This, every man of intelligence knows, carries with it the 
 right to make such change as experiences shall require. The law of 1899, 
 creating the Tax Commission, has required amendment at every session 
 since. The law of 1905, establishing a railway commission, will require 
 amendment at this session, and probably further change will be found 
 necessary at the next session. 
 
 The people of Wisconsin, after years of discussion and deliberation, 
 declared in 1900 for the abolition of delegate and convention nomina- 
 tions and for the nomination of all candidates by direct vote at a primary 
 election. The legislation was defeated. Again in 1902 they recorded 
 their decree strongly in favor of nominations by direct vote, and again 
 they were denied by the legislature. Finally, in 1904, for the third time 
 they voted overwhelmingly for the right to make their own nominations 
 by direct vote. I submit, therefore, that the people of Wisconsin are 
 entitled to the best efforts of this and succeeding legislatures, earnestly 
 and honestly directed, so to perfect the law as to preserve inviolate 
 the principle of making all nominations by direct vote, without the 
 intervention of delegates, conventions, or any other agency or political 
 device. 
 
 It is but just to remind critics in this connection that no protest has 
 ever been heard against the election of public officials by a plurality vote. 
 Yet at every general election men are chosen by plurality vote to make 
 and' administer the laws under which we live. This has never been re- 
 garded as offering any reason for an attack upon our general-election 
 
396 AMERICAN STATE GOVERNMENT 
 
 laws, or as an assault upon the principle of democracy upon which our 
 government rests. 
 
 Nevertheless, if the principle of majority control can be applied in 
 making nominations by direct vote at a primary election, every man in 
 this commonwealth will agree that it should be done. I believe that 
 majority nominations can be more easily and certainly secured by direct 
 vote of the people than at the hands of any delegate convention, it 
 matters not how the delegates be chosen or how they be limited in their 
 support of candidates. 
 
 Let us give to this important question the greatest care, for we may 
 be assured that it is worthy our most serious consideration. The record 
 of Wisconsin is a study for every state in the Union. 
 
 It will be urged by those who would break down the principle of nom- 
 inations by direct vote of the citizen, that, since the primary-election law 
 permits plurality nominations, it should be so changed as to provide for 
 the election of delegates to conventions, and that delegates so elected 
 should make nomination in every case where a candidate fails to get a 
 majority vote under the primary election. This would mean in the end 
 the nomination of practically all candidates by delegates rather than by 
 direct vote of the people. It would easily be in the power of any politi- 
 cal organization to put up several candidates for each office and so divide 
 the vote as to deprive any candidate of a majority. Neither would any 
 protection be afforded by limiting the candidates to be voted for in the 
 convention to those who were highest on the ticket at the primary election. 
 There would still be the same opportunity to manipulate delegates and 
 thwart the will of the people by corruption. The moment the important 
 business of choosing candidates is taken out of the hands of the people 
 and turned over to delegates or agents, that moment the mischief is done. 
 The door is open for deals and dickers and fraud. Under this method the 
 people will again lose their control. They can never regain it. Control 
 lost in making the nominations is the loss of control in government. 
 
 Precisely this plan for defeating nominations by direct vote and hand- 
 ing the entire business over to delegates was resorted to in at least one 
 state legislature by the political machine last year. A strong popular 
 movement is on in that state at the present time to abolish the election of 
 delegates and the holding of conventions, and to nominate all candidates 
 by direct vote. 
 
 The advocates for nominations by delegates claim too much. A little 
 reflection upon the subject will convince any one that in every case 
 where a candidate is strong enough to secure a majority of the votes of 
 the delegates in a convention, he would receive a majority of the votes 
 in a primary election. With the same number of candidates among whom 
 the votes are divided, there would be the same failure to secure a majority 
 on the part of any one of them upon the first ballot in a convention that 
 would occur in a primary election. 
 
ELECTIONS AND NOMINATIONS 397 
 
 A majority nomination in a convention where the vote is so divided 
 among the several candidates that neither has a majority upon the first 
 ballot can be brought about only by delegates subsequently changing 
 their votes and throwing them to some other candidate than the one the 
 voters elected them to support. Such a change on the part of the dele- 
 gate defeats the will of the voter as expressed in the election of the 
 delegate. The majority nomination accomplished by it is a majority nom- 
 ination determined by delegates and expresses their choice. It is not a 
 majority nomination made by the voter either directly or indirectly. The 
 man nominated by the delegate may be the very one whom the voter, 
 electing the delegate, would under no circumstances have chosen. In 
 other words, if the delegates are at liberty to vote as they please, then 
 the result is one in the control of which the voters back of the delegates 
 have had no voice. This shifting of the votes of delegates from one 
 candidate to another, through which a majority nomination is finally 
 secured, occurs under all the circumstances and conditions which have 
 discredited the work in nominating conventions in every state. 
 
 If majority nominations xan be secured by direct vote of the people 
 in a primary, it must be conceded that it would be preferable to trans- 
 ferring this important business to delegates. That this can be easily 
 attained is very apparent upon examination. We have but to turn to the 
 country from which we took the Australian ballot, for our lesson. Since 
 1892 the elector there has enjoyed the right to use what is called the 
 " contingent vote." This is simply the " order of preference " called into 
 play to assert the principle of election by absolute majority. This plan 
 providers a ballot upon which the elector marks his first and second 
 choice or "' order of preference." 
 
 Where but two candidates are in the field there is no occasion for the 
 exercise of the second choice in order to insure a majority nomination, 
 but where there are three candidates or more than three candidates, the 
 ballot provides opportunity for the delegate to indicate his second choice. 
 If, after the ballots are counted, no candidate has an absolute majority 
 of first-choice votes, then the ballots cast for the candidate receiving the 
 least number of votes on the list are assorted with reference to second 
 choices for the remaining candidates. 
 
 If no one then receives a majority of first and second-choiee ballots, 
 a similar assortment of the ballots of the lowest remaining candidates is 
 made on the basis of second choices and added to the votes of other 
 candidates, and so on until some candidate has a majority of first and 
 second choice. An examination of this subject will make it plain that 
 under this method it will rarely be necessary to canvass the entire second- 
 choice vote to secure a majority nomination. This plan effectually pre- 
 vents the lowest or weakest candidate from getting a nomination on 
 second choice. It accords to the first-choice vote its due importance oyer 
 that of the second choice, and secures to the candidate strongest with 
 
39S AMERICAN STATE GOVERNMENT 
 
 most of the voters the majorit)- nomination. This is a simple method of 
 determining by majority vote the nomination of a candidate for each office 
 on the primary-election ballot. 
 
 A moment's reflection will make it manifest that this is the application 
 of precisely the same principle which is resorted to in making a majority 
 nomination in a convention which takes place after it is discovered that 
 there is no nomination made upon the first formal ballot. That is to say, 
 the delegates in the con\ention, after the first ballot, must, enough of 
 them, abandon the support of the candidate of their first choice to make 
 a sufficient number of second-choice votes, with those of the first choice, 
 which the favored candidate had from the beginning, to give to such 
 candidate a clear majority. In other words, giving the voter a chance to 
 express not only his first but his second choice of candidates upon the 
 primary-election ballot applies identically the same principle to securing a 
 majority nomination in a primary election that must be resorted to in a 
 delegate convention with a like number of candidates to secure a majority 
 nomination. 
 
 An examination and test, such as any one can readily make for the 
 purpose of illustration, shows the reliability of the method here outlined. 
 The voter simply indicates on his ballot not only the name of the candi- 
 date of his first choice, but the name of any other candidate for the same 
 office, for whom he desires his vote to be counted, in the event that the 
 candidate of his first choice does not receive an absolute majority of votes. 
 This indication may be made by writing the figure i in a blank space on 
 the ballot, after the name of the candidate of his first choice, and the 
 figure -' after the name of the candidate of his second choice ; and the 
 same principle may be applied, allowing the exercise of further choice, 
 depending upon the number of candidates for each office. 
 
 In this way the law is made to offer to the elector the largest possible 
 opportunity for the exercise of his influence as a citizen in the selection 
 of the men who are to become his representatives in government. There 
 could be no failure to nominate by an absolute majority vote, and that 
 vote would always represent the will of the majority of the electors. The 
 voter would have no complaint to offer respecting any nomination. The 
 act is his own. He has not been compelled to hand his rights as a voter 
 over to some delegate to be disposed of in a convention where he may 
 easily be betrayed, and if disappointed, where he is certain to believe that 
 he has been betrayed. 
 
 This plan would go far to strengthen confidence in party nomina- 
 tions and restore faith in public officials. It insures to the voter the full 
 measure of his right of suffrage. It removes the last objection which can 
 be raised against nominations by direct vote. It is right in principle and 
 has proven successful in practical application. I commend it to your 
 favorable consideration. 
 
ELECTIONS AND NOMINATIONS 
 
 399 
 
 AN ESSENTIAL AMENDMENT TO THE PRIMARY LAW^ 
 By Charles K. Lush 
 
 This is written in the hope of making plain the basic principle upon 
 which the second-choice amendment to the primary rests. It is the 
 principle that the nominee of a political party should represent the party 
 principles or policy of the majority of the voters of the party. It prevents 
 the possibility of a man representing the principles of only one quarter 
 of the voting strength of the party being nominated as the candidate of 
 the party, and in direct conflict with the views of three quarters of the 
 voters of the party. It was the recognition of this principle that caused 
 conventions to nominate by majority vote of the delegates instead of by 
 plurality. The writer makes only one contention, and that is that the 
 present primary law is a manifest absurdity as a nominating machine. It 
 prevents a number of candidates representing the majority sentiment as 
 to party principles from coming into the field as candidates for the nom- 
 ination,- for fear the candidate of the minority might be named by receiving 
 a higher vote than any one candidate among the majority candidates. 
 The present primary is, in effect, a convention to which every voter is a 
 delegate and in which the candidate receiving the most votes on the first 
 ballot is the nominee. The remedy lies either in the adoption of the 
 second-choice amendment (derisively known as the Mary Ann Law), or 
 by return to the convention system. 
 
 An effort has been made, concerted and vigorous, to make it appear 
 that the second-choice system is very complicated. The voter casts one 
 vote for a candidate as his first choice, and another for the man whom 
 he would like to see nominated if his first choice cannot be nominated. 
 So far as the voter is concerned, there is no " complication." Delegates 
 who attended state conventions did not find it complicated to vote for their 
 second choice after they found that their first choice could not be nom- 
 inated. The primary is, in effect, a state convention to which every voter is 
 a delegate. 
 
 But there are two ''complications." There is much complication in 
 the mind of the average statesman and politician when he sits down and 
 tries to figure out how he could manipulate the second-choice vote. Being 
 " complicated " on this important point, it is to his interest to keep every- 
 body else "complicated." 
 
 The second "complication" exists in the minds of the people, through 
 the efforts of a few instructors, the newspapers, etc., to explain how the 
 second-choice vote is counted. There are some things that are exceed- 
 ingly difficult to make clear without the aid of illustration ; for instance, 
 problems in simple mathematics. But with the aid of the very simple 
 
 1 From a pamphlet on The Second-Choice Arrangement. 
 
400 
 
 AMERICAN STATE GOVERNMENT 
 
 diagram of the tally sheet and the checking and computing blank, this is 
 all made clear in an instant. It is one of the things you can't explain. 
 You have got to show it, and, to begin, the ballot is given herewith, the 
 crosses indicating the choice of the voters in this instance. 
 
 
 For Governor 
 
 First 
 Choice 
 
 Second 
 Choice 
 
 Adams 
 
 
 
 Brown 
 
 X 
 
 
 Black 
 
 
 
 White 
 
 
 
 Gray 
 
 
 X 
 
 Following is the official tally sheet upon which the first and second- 
 choice votes are entered, being called off in this case : " For governor. 
 Brown first. Gray second." Supposing the ballots of one precinct have 
 been called off, the sheet shows as follows : 
 
 For Governor 
 
 
 OfffcidL Taliv Sheet 
 
 
 First Choice 
 
 Adams 
 
 
 
 Brown Black Whifp 
 
 f^ fHj fHj fhi ruj 
 
 
 
 (TU mi nn 
 
 bu rm 
 
 
 Adams 2s 
 
 
 
 /J- 
 
 10 
 
 
 ff»rfurHi/Hinunuiwmiiii 
 
 i»i iw m^ 
 
 
 mnu rm im inj 
 
 
 Ill 
 
 Brown ^y 
 
 /r 
 
 
 zs- 
 
 
 3 
 
 /m ff4j ffij mj 
 
 
 /W /to fffi 
 
 
 fm 
 
 
 B/ack 20 
 
 
 /s 
 
 
 s- 
 
 
 ^twmjiuimjttUfwfmmifHJ 
 
 fm n 
 
 rm ttu 
 
 ftunu im hu 
 
 
 tm III 
 
 nu 
 
 
 
 nn TM 
 
 
 
 White S^ 
 
 7 
 
 /O 
 
 30 
 
 
 s 
 
 ff» tw nu II 
 
 
 )Hi fui fm 
 
 
 II 
 
 
 Gray /^ 
 
 
 fS- 
 
 
 a. 
 
 
ELECTIONS AND NOMINATIONS 
 
 401 
 
 Carried down, the first-choice vote, or first ballot of the " convention," is 
 as follows : 
 
 Adams .... 25 
 
 Brown 43 
 
 Black 20 
 
 White 55 
 
 Gray 17 
 
 There being no majority on the count of first-choice votes cast, and 
 Gray being the lowest man, he is beaten and out of the race, so those 
 who voted for Gray are entitled to have their votes counted for their 
 second choice, making the result as follows : 
 
 Adams 25 
 
 Brown 43 15 58 
 
 Black 20 
 
 White. . . 55 2 sy 
 
 Black is now the low man, and the men who voted for him as their 
 first choice are entitled to have their second-choice votes counted for their 
 second choice. Repeated as above brings the following result : 
 
 Adams -25 
 
 Brown 58 15 73 
 
 White 57 5 62 
 
 There are only Brown, White, and. Adams left, and Adams being de- 
 feated and low man, his adherents are entitled to express a second choice, 
 and their votes are counted, making the final result as follows : 
 
 Brown . . ... .... 73 o 73 
 
 White. . . 62 10 73 
 
 It will be seen by studying the above table that Brown made no gain 
 on the final "ballot," for the reason that none of the 25 voters who 
 voted for Adams for first choice voted for Brown for second choice. Ten 
 of them, however, voted for White as their second choice, while 15 of 
 them voted for Black as their second choice. These 15 second-choice 
 votes are not counted for the reason that they were being counted for 
 Adams while he was still in the race, and before Adams was out of the 
 race Black was out of it. These voters simply voted for two losers, as 
 might have been the case had McGillivray and Connor remained in the 
 race for governor, and had they voted for Connor for first choice and 
 McGillivray for second choice. This explains why, in the above showing 
 between Brown and White, their total vote is only 145, while there were 
 160 votes cast in all. But 15 of these votes were cast for Adams and 
 Black, both of whom were low men, — two losers. 
 
 This system does not always insure a majority of all votes cast, but it 
 does insure the nomination of a candidate who represents the majority 
 
402 
 
 AMERICAN STATE GO^'ERNMENT 
 
 sentiment of the part)- as regards party principles. Let us illustrate by 
 showing what can happen under the present law, where a first choice 
 alone counts and the high man is nominated, all of the rest being " elim- 
 inated." To begin with, remember that the present primary is, in effect, 
 a party convention to which all party voters are delegates, entitled to one 
 vote on the only " roll call " allowed. The man who receives the highest 
 vote on this " first ballot " (the primaiy vote) is the nominee of the party. 
 Let us suppose there were 3 tariff-reform Republican candidates and 
 I stand-pat candidate in a congressional district and 3000 stand-pat Re- 
 publicans. At the primary the result could reasonably be supposed to be 
 
 as follows : 
 
 A, stand-pat candidate 3000 
 
 B, tariff-reform candidate 2500 
 
 C, tariff-reform candidate . . . 2500 
 
 D, tariff-reform candidate . . . 2000 
 
 By this result, with the present system of the highest candidate being 
 the nominee, the stand-pat I^epublican would become the nominee of the 
 7000 voters absolutely opposed to the policy advocated by him. Could 
 anything be more absurd than this ? 
 
 Now let us use this same case and apply the second-choice rule by 
 which the lowest candidate is " eliminated," and not all but the highest 
 '" eliminated," which is the present primary law. 
 
 The first count of first-choice votes would be as above given and now 
 put down again : 
 
 A, stand-pat candidate 3000 
 
 B, tariff-reform candidate . . . . 2500 
 
 C, tariff-reform candidate .... 2500 
 
 D, tariff-reform candidate . . . 2000 
 
 Each voter having expressed a second choice, and D, one of the tariff- 
 reform candidates, being the low man, he would be out of the race, so the 
 voters who voted for him for first choice would be entitled to have their 
 second-choice votes counted. Now would they not be sure to be divided 
 between the two other tariff-reform candidates, — men who represented 
 their views on party policy? Suppose they had divided, 1500 of these 
 having been cast for B as their second choice, and 500 for C. The final 
 result would be : 
 
 A, stand-pat Republican .... 3000 
 
 B, tariff-reform Republican . . 4000 
 
 C, tariff-reform Republican . . . 3000 
 
 B would accordingly be the candidate representing the views of 7000 
 voters, instead of A, representing the tariff policy of only 3000 voters. 
 
 The present primary law is an absurdity because it applies the plurality 
 rule to what is, to all intents and purposes, a political convention. It is 
 exactly the same as though the old convention had assembled and made 
 
ELECTIONS AND NOMINATIONS 403 
 
 the man who received the most votes on the first ballot the nominee, 
 even though he represented the views of not more than one quarter of 
 the delegates, they representing by the same proportion the views of the 
 voters who sent them to the convention. 
 
 Either the second-choice amendment to the primary law should be 
 adopted or delegates should be chosen to a convention where the dele- 
 gates, under convention rules, would always nominate a candidate repre- 
 senting the majority sentiment as to party policy. 
 
 The failure of the legislators to adopt the second-choice amendment at 
 the last session illustrates how difficult it is to secure remedial legislation 
 in a case of this kind. No sooner is a voter selected from the army of 
 voters and made an officeholder than he ceases to see problems from the 
 viewpoint of the voters, but looks at them from his own position as an 
 officeholder and prospective manipulator of candidacies. The absence of 
 any effective champion of the second-choice amendment — and the second 
 choice is not really an " amendment," but an essential part of the pri- 
 mary law left off either through ignorance or reprehensible cunning — is 
 by no means a triumph for the first test of representative government 
 in Wisconsin. 
 
 The present primary law fosters the power of a party boss. This 
 " boss," be his leadership for good or for evil, has the power to place 
 candidates early in the field, and then warn other men not to become 
 candidates on the unassailable ground that a number of candidates of 
 the majority faction might split the vote and allow the solitary candidate 
 of the minority to be chosen as the party nominee. By thus naming the 
 candidate of the majority faction of the dominant party the boss is all- 
 potential. Had the second-choice feature been left a part of the law, the 
 leader of the majority faction would have had no such power, for several 
 men of known loyalty to the principles of the majority faction could be 
 candidates, secure in the knowledge that those who voted for them as a 
 first choice would give their second choice to some candidate represent- 
 ing the same principles and advocating the same line of legislation, thus 
 precluding the nomination of the minority candidate. The boss, or leader, 
 might still properly give his support to some one of the candidates, but 
 it would be plainly a matter of personal preference, and not justified on 
 the ground of safeguarding the rights of the majority to name the can- 
 didate of the party. 
 
 Under the present nominating law it is really necessary that the " boss," 
 or leader, should " eliminate " the candidates of the majority before the 
 primaries are held, otherwise the candidate of the minority might be made 
 the nominee of the party. Under the second-choice feature, which was 
 a part of the Australian law and left off by the drafters of the Wisconsin 
 law, the voters do this " eliminating " at the primaries. Until this oppor- 
 tunity of selection is placed in the hands of the people there can be no 
 true representative government in Wisconsin. 
 
404 
 
 AMERICAN STATE GOVERNMENT 
 
 The second choice, which is an integral part of a primary system, would 
 restore the rights made inoperative by caucus and convention manipula- 
 tion. \M-ien that is done, representative government will be something 
 more than a figure of speech in an outburst of oratory. 
 
 POPULAR CONTROL OF SENATORIAL ELECTIONS ^ 
 By G. H. Haynes 
 
 The Constitution requires that the senators from the several states 
 be elected "' by the legislatures thereof." Gradually, however, the feel- 
 ing has become widespread that many of the men who, in recent years, 
 have found their way to the Senate are little disposed to hold them- 
 selves responsible to the people or to heed the broader interests of 
 the country. Rightly or wrongly, this imperfect sense of responsibility 
 shown by the senators is being attributed in increasing measure to the 
 process and organ of their election ; and the same distrust of state legis- 
 latures which has led to the stripping away of many of their powers, 
 through amendments to state constitutions and other forms of direct 
 legislation, now gives rise to the demand that the choice of senators 
 shall no longer be left to . the caprice of these legislatures, but that it 
 shall either be taken away from them entirely, or at any rate be sub- 
 jected to effective popular control. The first of these demands is the 
 basis of the propaganda, first put forward eighty years ago, and in the 
 last decade rapidly growing in volume and insistence, that the Constitu- 
 tion be so amended as to provide for the election of senators by the 
 direct vote of the people. In many ways this seems both the most direct 
 and the most natural method of securing senatorial responsibility. Yet the 
 obstacles in the way of its attainment have hitherto proved insuperable. 
 They are raised not only by those who have no faith that popular elec- 
 tion would prove an effective remedy, but also by those who regard such 
 a change of the Constitution as either impossible or inexpedient. Never- 
 theless, during the past decade the agitation in favor of this amendment 
 has acquired such force and definiteness that to many its adoption seems 
 close at hand. 
 
 But meantime much the same goal has been sought by a very different 
 route. In true English fashion, custom and precedent have here been 
 at work changing the spirit and import of the law while its letter remains 
 ever the same. Sometimes by mere tacit understanding, sometimes by 
 the insistence of political parties, sometimes by the direct and positive 
 interposition of state law, this movement has gone forward with ever- 
 increasing force, until a point has been reached where it is well to 
 take a survey of what has already been done and attempt a forecast of 
 what may yet be accomplished in the way of securing popular control 
 
 1 From Political Science Quarterly^ i9o5- Reproduced by permission. 
 
ELECTIONS AND NOMINATIONS 405 
 
 over senatorial elections without recourse to amendment of the federal 
 Constitution. 
 
 Notwithstanding our rigid Constitution's decree that the senators 
 from the several states shall be elected by " the legislatures thereof," 
 this act of the legislatures may be deprived of nearly all of its vitality. 
 The election of president offers an illustration of the filching of actual 
 power away from the electors in whom it is vested by law. When James 
 Russell Lowell, a Republican elector for Massachusetts in 1876, was 
 urged to exercise his independence and vote for Tilden, he declined, 
 saying that " whatever the first intent of the Constitution was, usage 
 had made the presidential electors strictly the instruments of the party 
 which chose them." The Constitution remains unchanged, yet presiden- 
 tial electors recognize that they have been stripped of all discretion. 
 It appears that under certain conditions the election of senators by state 
 legislatures has been and can be made an equally perfunctory affair. 
 
 The simplest way in which popular suggestion or pressure may be 
 brought to bear upon the legislature is through the indorsement or 
 nomination of some candidate for senator by the state convention of the 
 party. Thus, in April, 1858, the Democratic convention of the state of 
 Illinois gave its indorsement to the position which Douglas had taken 
 on the Kansas question. Every one recognized this as equivalent to 
 naming him as the party's candidate for reelection to the Senate by the 
 legislature which was to meet a few months later. The Republicans 
 promptly put forward Lincoln as his opponent, and at their convention 
 in June passed the following resolution : " Honorable Abraham Lincoln 
 is our first and only choice for United States senator to fill the vacancy 
 about to be created by the expiration of Mr. Douglas's term of office." 
 In point of law the great debate which followed was but an incident in 
 the election of a legislature with which alone rested the power of elect- 
 ing a senator, but the whole country knew who was to be senator as 
 soon as the votes for the members of the legislature had been counted. 
 The issue between these two candidates had been so dominant, the 
 people's will so directly expressed, that doubt or hesitation was out of 
 the question. Four years later Charles Sumner had lost favor with cer- 
 tain elements of the Republican party in Massachusetts, on the eve of 
 the expiration of his second term. His adherents, therefore, were deter- 
 mined that the party should be pledged to his support, and in the state 
 convention they secured the adoption, not without opposition but with 
 much enthusiasm, of a complimentary resolution nominating him for 
 reelection. In the legislature his election followed without opposition 
 and as a matter of course. 
 
 Yet this method does not always yield assured and satisfactory results. 
 In both cases already cited only two great parties were pitted against 
 each other, and the issue between them was clearly drawn. But in the 
 more tangled political conflicts of recent years, where parties are split 
 
4o6 AMERICAN STATE GOVERNMENT 
 
 into factions and where issues are purposely blurred, the skirmish in the 
 con\ention by no means decides the campaign. When the legislature 
 meets, the chances are that no one of the convention-indorsed candidates 
 will secure a clear majority on the first ballot, and in the attempts to 
 form coalitions, the restraints of the convention's instructions soon get 
 relaxed. Even if the man of the convention's choice is finally elected, it 
 is only after a bitter contest, in which charges of bad faith and corrup- 
 tion are freely exchanged. Precisely such an experience, for example, 
 was had in the Minnesota election of 1893, in the hard-fought election 
 of the late Senator Cushman K. Davis, and public dissatisfaction found 
 expression in such editorial comment as this : 
 
 ^\■hen the legislators refuse to vote for a candidate who has been indorsed 
 by the people, by the party convention, and the united party action, and for 
 such refusal are able to offer not a syllable of objection to the candidate's 
 moral and intellectual fitness, it is time such men were not given power to 
 defeat the people's will.^ 
 
 Except in states where one united party has an overwhelming majority, 
 and until the choice of senator comes to be the dominant issue in the 
 election of members of the legislature, they will therefore continue, 
 whether for good or ill, to exercise not a little independence of conven- 
 tion restraints, to the occasional confounding of the people's best hopes 
 and most confident expectations. Moreover, it must not fail to be 
 observed that, while the designation or indorsement of a senatorial can- 
 didate may, under certain conditions, amount to his virtual election, it 
 involves not one whit of genuine popular control of senatorial elections, 
 unless the party machinery in that state is so contrived and so operated 
 as to insure a trustworthy expression of the people's choice. Otherwise 
 it amounts merely to the choice of senator by a servile convention at the 
 dictation of the ring or of the boss, and the last state of that election is 
 worse than the first. 
 
 In recent )'cars no other department of political legislation of the 
 several states has been subject to such restless change as that relating 
 to the nomination of candidates for public office. Repeated and painful 
 experience of the abuses of party machinery, and in particular of the 
 delegate-nominating convention, has led to a determined movement for 
 the securing of the direct primary. Throughout the country the domi- 
 nant tendency has become to accord to the people, in form at least, the 
 right and the opportunity to share in the choice of men for the public 
 service. Although the senatorship lies outside the state system, direct 
 recourse to the people in the primaries for the selection of senatorial 
 candidates finds a precedent as early as 1890. Again, as in the indorse- 
 ment of senatorial candidates by party conventions, it was Illinois that 
 set the example. Says Senator Palmer : 
 
 ^ Minneapolis Tribune^ January 21, 1893. 
 
ELECTIONS AND NOMINATIONS 
 
 407 
 
 Election of senators by a popular vote, which by common consent should 
 control the members of the legislature, was not novel to the people of Illinois, 
 for they were familiar with the great contest of 1858. 
 
 In 1890 the state committee of the Democratic party, in connection with the 
 call of the state convention, put two propositions before the voters: (i) the 
 propriety of a nomination by the proposed state convention of a candidate for 
 senator, to be voted for by the people at the next election, as directly as possi- 
 ble under the provisions of the Constitution ; and (2) the selection of a candi- 
 date for senator, if it should be determined thaf a candidate be nominated. 
 
 Result: Primary conventions held in more than 90 out of the 102 counties 
 of the state, including the county of Cook, which now contains nearly if not 
 fully one fourth of its population, determined to nominate a candidate, and 
 indicated their preference for the person to be presented to the people. The 
 state convention expressly approved the plan of direct election and indorsed the 
 candidate. He accepted the platform and toured the state. On the issues loi 
 (out of 202) members were elected to the legislature by an aggregate plurality 
 of 30,000 and over. These loi members of the legislature, regarding them- 
 selves as electors chosen to register the will of the people, between the 21st day 
 of January, 1901, and the nth of March, voted for the candidate nominated 
 in 153 ballots, and on the 154th ballot they were joined by two members of 
 the House of Representatives who were favorable to the election of senators 
 by the direct vote of the people of the several states, and on that ballot a senator 
 was elected.'^ 
 
 It was by virtue of the will of the people, thus directly expressed in 
 his own nomination and election, that Senator Palmer felt himself called 
 of the people to stand forth as their champion in the Senate in the fight 
 for the amendment of the Constitution. Yet this very experience shows 
 how far from effective, in such a state as Illinois, is the popular control 
 which can be exercised over senatorial elections by direct nominations 
 indorsed by party conventions and followed by the election of legislators 
 upon this as the main issue ; for, although Palmer's candidacy was backed 
 by a " plurality of over 30,000," the legislature was in deadlock for nearly 
 seven weeks before his election was effected, and even then it was brought 
 about only by the votes of two men who, as his opponents asserted, had 
 been pledged to vote against him.'' 
 
 It is in the states where a single party has so established its dominance 
 as virtually to take over to itself the functions of the state that the direct 
 primary has found most ready adoption. So congenial has this new insti- 
 tution proved throughout the South that it " is now no unusual thing for 
 the number of votes cast in a general election to fall to a very small pro- 
 portion, sometimes as low as from 10 to 25 per cent of the vote cast in 
 the nominating primary for the same candidates." ^ As the people of the 
 southern states have accustomed themselves to " take part in the choice 
 
 1 Congressional Record^ Vol. XXIII, p. 1267. 
 
 2 Compare Senator Chandler's account of this election, Congressional Record, April 12, 
 1892, Vol. XXIII, p. 3197. 
 
 8 Francis G. Caffey, Political Science Quarterly, March, 1905, Vol. XX, p. 61. 
 
4o8 AMERICAN STATE GO^'ERNMENT 
 
 of their [state] officials almost cntirel}- b)- the indirect method of sharing 
 in the selection of the candidates of one party," it has been almost inevi- 
 table that the same procedure should be extended to the choice of sena- 
 tors ; and, without any explicit provision of law, in most of the states 
 senatorial contests have come to be finally decided in the primaries. How 
 closely this method may approximate to a popular election of senators is 
 clearly shown by Governor Jeff. Davis, of Arkansas : 
 
 The last state convention adopted a resolution that the candidate for the 
 United States Senate receiving the highest number of votes in the primaries 
 should be declared the choice of the Democratic party for the United States 
 Senate by the state convention, just as they declare the nominees of the party 
 for state offices ; and of course the legislature has no duty depending upon them 
 but to cast their vote for the person declared the successful candidate by the state 
 convention. This is absolutely equivalent to election by the people. You see 
 this can happen in this state because the nominees of the Democratic party are 
 considered as elected, as our legislature consists of 135 members and only two 
 are Republicans.' 
 
 To show the extent to which, in many states, the legislature's function 
 in the election of senators has become atrophied, it is only necessary to 
 note the growing frequency of unanimous elections. In 1900 Senator 
 Morgan recei\ed a unanimous election from the Alabama legislature, and 
 in Louisiana two senators were thus elected. In 1901 Senator Tillman 
 was thus returned to the Senate from South Carolina; in 1903 the vote 
 was unanimous for Pettus in Alabama and for Latimer in South Carolina. 
 In 1904 Foster, in Louisiana, and both Money and McLaurin in 
 Mississippi were unanimously elected. Upon the surface these election 
 returns might seem to indicate such preeminent qualifications in the 
 senators chosen as totally to eclipse all other candidates. As a matter of 
 fact, however, many of these unanimous elections have been preceded by 
 the most acrimonious of campaigns. The unanimity of the election in the 
 legislature merely signifies that, inasmuch as all the questions had been 
 setded in the primary, " the election itself is a mere legal formality, to 
 which no more attention is given than is necessary to record the result 
 of the primary." Throughout the South this method of nomination has 
 been introduced as a mere matter of party rules, binding upon the domi- 
 nant party and hence having the effect of genuine laws. In Mississippi, 
 on the other hand, the act of 1903 invokes the strong arm of the law to 
 regulate the primary and to make it as much a function of the state as is 
 the election itself. This law abolishes all nominating conventions of what- 
 ever grade and makes specific provision for the nomination of all elective 
 officers, including United States senators, by direct primaries. 
 
 In other sections of the country, too, the direct primary is making 
 rapid progress. The recent laws in Minnesota, Michigan, Indiana, and 
 Massachusetts provide machinery which may readily be adapted to the 
 
 1 Letter of GOTemor Davis to the writer, August 29, 1904. 
 
ELECTIONS AND NOMINATIONS 409 
 
 nomination of senators; while the new laws of Wisconsin and Illinois 
 proceed directly to that goal. 
 
 In western states the tendency in recent years is not to rest content 
 with the designation of senatorial candidates by the state convention, nor 
 even with the nomination of candidates by the primaries, but rather to 
 insist upon going through all the forms of a popular election, the whole 
 process being under the supervision not of party leaders but of state 
 officials. Thus as early as 1875 the following proposition was submitted 
 by itself to the voters of Nebraska, and was by them adopted as a part 
 of the new constitution of that year : 
 
 The legislature may provide that, at a general election immediately preced- 
 ing the expiration of the term of a United States senator from this state, the 
 electors may by ballot express their preference for some person for the office 
 of United States senator. The votes cast for such candidates shall be canvassed 
 and returned in the same manner as for state officers. 
 
 This thoroughly democratic provision for a preliminary popular elec- 
 tion was for a long time absolutely unique ; yet the people of Nebraska 
 have seemed to take little interest in it. In twenty-five years and more 
 since it became a part of the constitution they have made use of it but 
 once, and then with results that are significant. In 1886 General Van 
 Wyck made an active canvass of the state in his own behalf as an anti- 
 monopohst. Neither the Repubhcan nor the Democratic party put for- 
 ward a senatorial candidate in the popular election in November, at 
 which, although 138,209 votes were cast for governor, only 50,448 voters 
 expressed a preference for senator ; of these more than 9 1 per cent voted 
 for Van Wyck. When the legislature met, he led on the first two ballots, 
 receiving 40 votes out of 100; but he failed to secure the election, a 
 result which he attributed to the interference of railroad officials and 
 monopolists. As to the present attitude of the people toward this election, 
 the governor of Nebraska writes : 
 
 In 1898 this matter was included in the proclamation, but there was a very 
 feeble response. From most counties no returns were made. In the fifth and 
 sixth congressional districts combined (which would normally contain not less 
 than 75,000 voters) only 626 votes were cast on this preference. It appears 
 to be generally popular throughout the state, but there is a general apathy when 
 it comes to placing the matter on the ballot.^ 
 
 In other states more recent laws have been framed upon this subject 
 with greater and greater particularity. Their titles and preambles leave 
 no doubt as to their motive. Thus in 1899 Nevada enacted a law en- 
 tided "An act to secure the election of United States senators in 
 accordance with the will of the people and the choice of the electors of 
 the state, and to obtain an expression of such choice and to prevent 
 fraud and official dereliction of duty in connection with such elections." 
 
 1 Letter of Governor John H. Mickey to the writer, August 31, 1904. 
 
4IO 
 
 AMERICAN STATE GOVERNMENT 
 
 This law provides that candidates for the Senate may be nominated in 
 the same manner as the candidates for the state offices ; the names of 
 the senatorial candidates having been given a place upon the ballot, the 
 votes upon them are certified in the same manner as upon the other 
 candidates, and the Secretary of State is required to transmit the results 
 to the legislature when it meets for the formal election. Accordingly, in 
 Nevada, a party convention nominates on the same day — as was done 
 August lo, 1904 — candidates for the United States Senate, for repre- 
 sentative in Congress, and for judge of the state supreme court. The 
 subsequent election process in the case of all these candidates is pre- 
 cisely the same, except that the election of the judge and of the member 
 of Congress is complete when the returns of the popular vote are duly 
 certified, while in the case of the senator, the only election of which 
 federal law takes any account does not begin until months later, when 
 the legislature takes up that task. As regards the election of a senator, 
 accordingly, all these elaborate operations are but a complicated method 
 of bringing moral pressure to bear upon men who, in spite of it all, have 
 a perfect legal right to vote for the man of their party allegiance or of 
 their personal liking. 
 
 By the Oregon law of 190 1, as in Nevada, the whole process is as- 
 similated to that employed in the election of state officers ; in one respect, 
 however, the people's choice for senator is more forcibly obtruded upon 
 the legislature. Duplicate copies of the returns are to be sent to the 
 House and to the Senate, and their respective presiding officers are 
 required to 
 
 lay the same before the separate Houses when assembled to elect a senator in 
 Congress, as now required by the laws of Congress, and it shall be the duty 
 of each House to count the votes and announce the candidate for senator having 
 the highest number ; and thereupon the Houses shall proceed to the election of 
 a senator, as required by the act of Congress and the constitution of this state. 
 
 The plain intent of this law was to subject senatorial elections to a 
 popular control more direct and more imperative than had ever before 
 been attempted by any state. It would hardly be possible to say to the 
 legislature more plainly, " This is the way ; walk ye in it." What has 
 been the result? At the assembling of the next legislature Governor 
 Geer put before them the situation as follows : 
 
 In obedience to a general demand from the people and the press of the state, 
 the last legislature passed a law providing for a direct vote on candidates for 
 United States senator. After a careful revision during its passage this law was 
 enacted by a vote that was practically unanimous, and in exact accord with its 
 provisions the popular vote was held last June. ... In many states of the 
 Union the result of this first attempt at the popular vote for United States 
 senators is watched with much interest, and its prompt observance, and ratifica- 
 tion will not only encourage its adoption in other states, but will prove the 
 
ELECTIONS AND NOMINATIONS 
 
 411 
 
 sincerity of our protestations in favor of popular election of senators and render 
 impossible a repetition of former experiences in Oregon, to prevent which this 
 law was formulated, supported, and adopted. 
 
 This experiment certainly deserved the serious attention of the other 
 states, but the note of strenuousness in the governor's words in reference 
 to it may possibly be related to the fact that he himself was the candi- 
 date who had carried the popular election by a large majority. On the 
 very day when the legislature had been thus exhorted, January 20, 1902, 
 there were transmitted to the separate Houses of the legislature, with all 
 due formality, copies of an abstract of votes cast at the general election 
 for senator held during the previous June. In the House the Speaker 
 appointed a committee of three to assist in canvassing the vote, and the 
 result was announced as follows : For T. T. Geer, 44,697 , for C. E. S. 
 Wood, 32,627. The record proceeds: "The election of United States 
 senator being next in order, Mr. Denny placed in nomination Honorable 
 T. T. Geer, Mr. Phelps placed in nomination Honorable C. W. Fulton, 
 Mr. Galloway placed in nomination Honorable C. E. S. Wood. The roll 
 was called with the following result: Geer, 12 ; Fulton, 19 ; Wood, 12"; 
 and scattering votes for eleven other candidates. Thus the man who had 
 secured a majority of 37 per cent in the popular vote received only a 
 small minority on this first ballot in the House. The election was thrown 
 into the joint assembly, and there the deadlock, which seems to have 
 become the normal thing in the legislatures of Oregon, forthwith began. 
 Not until it had lasted more than five weeks did it become possible, at a 
 night session, on the forty-second joint ballot, to elect a senator. The 
 candidate elected was a man for whom not a single vote had been cast 
 in this much-vaunted popular election, which had been instituted for the 
 express purpose of affording the people " an opportunity to instruct their 
 senators and representatives in the legislative assembly as to the election 
 of a senator in Congress from Oregon." 
 
 But schemes for controlling the legislature's choice have gone even 
 further. In Colorado there was recently introduced a bill of a much 
 more radical nature. It provided that at the general election next pre- 
 ceding the time for electing a United States senator, each political party 
 might place upon the ballot the names of five or less candidates for the 
 Senate, and bound the members of the legislature under penalty of ex- 
 pulsion to vote for the candidates of their respective parties receiving 
 the greatest number of popular votes. This bill did not become a law. 
 Had it done so, its constitutionality might possibly have been successfully 
 contested. But its introduction is highly significant of the growing deter- 
 mination on the part of the people of the western states that ih electing 
 senators their state legislators shall presume to exercise no independence 
 of choice, but shall merely register the people's expressed will. The 
 fundamental idea in this novel Colorado proposal, it is interesting to note, 
 has received the approval of distinguished authority : in the debate over 
 
412 
 
 AMERICAN STATE GOVERNMENT 
 
 the law of 1866 both Senator Williams and Senator Sumner insisted 
 that, although the Constitution directed that senators should be chosen 
 by the legislatures, their constituents had a right to instruct the members 
 as to their votes for senator, and had a right to be obeyed. 
 
 It may prove possible for the states to give the people free power of 
 nomination and yet leave to the legislatures a power of election which 
 has not been reduced to a mere form. Along this line the suggestion has 
 recently been made that the names of all candidates who receive a cer- 
 tain number of votes ( say 3000 or 5000 ) in the direct primaries be printed 
 upon the official ballot at the general state election ; and that the result of 
 this election, as represented by the list of those candidates ( say five or 
 ten ) who have received the highest number of votes, be a popular instruc- 
 tion to the legislature to choose from them a senator by the Australian 
 ballot, each member to vote on the first ballot for three on the list, and 
 on the second for one ( or two, as the case may be ) out of the three 
 highest, as determined by the first ballot. Among the benefits to be 
 expected from such an elective process it is predicted that choice would 
 no longer be a choice of two evils, and that worthy candidates would 
 " tend to multiply, since they could allow their names to be used without 
 loss of self-respect." ^ This scheme has been criticized as " academic," 
 yet it has much to commend it for practical experiment. The constitu- 
 tionality of limiting the legislature's range of choice to the list of candi- 
 dates sent up by the people may be questioned ; but even if such a 
 limitation were not rigidly enforced, the list of nominees with such back- 
 ing could not fail to have a large measure of influence. 
 
 The object of this study has not been to set forth isolated experiments 
 in constitutional law and custom, but to trace the progress of a movement 
 which, during the past thirty years, has taken on different forms, has 
 employed different means and methods, but has ever kept the same spirit 
 and aim, — a determination that the Senate of the United States shall 
 be made responsible to the people. 
 
 The route first attempted was by way of an amendment to the Con- 
 stitution, providing for the election of senators by the direct vote of the 
 people. Only under urgent prompting from outside did Congress accord 
 serious attention to this project ; for years it received little more than 
 perfunctory lip service ; yet so insistent became the demand that five 
 times, and by ever-increasing majorities, the House of Representatives 
 has passed a resolution proposing such an amendment. But progress 
 toward the goal by this route has always been blocked upon reaching 
 the frozen sea of the Senate's stolid resistance. In despair of success 
 upon this line, recourse has been had to the optional but hitherto untried 
 method of proposing amendments; state legislatures have been calling upon 
 Congress to summon a convention for the express purpose of initiating 
 
 1 See P. Garrison, "The Reform of the Senate," Atlantic Monthly, August, 1891, 
 Vol. LXVIII, pp. 227-234. 
 
ELECTIONS AND NOMINATIONS 413 
 
 this amendment. In one form or another the legislatures of thirty-one 
 
 states — more than the full two thirds prescribed by the Constitution 
 
 have communicated to Congress their formal approval of the proposed 
 change in the Constitution ; indeed, if the votes in the House be taken 
 as a fair representation of the will of the people in their constituencies, 
 only two states in the Union have failed to give their indorsement. Along 
 this line, then, the movement has reached a point where it needs but the 
 putting of these requests into a common form, and the marshaling of 
 this scattering fire of resolutions into one concerted volley of demand, to 
 constitute a mandate which the Constitution gives Congress no warrant 
 but to heed. That the House would offer no obstruction every precedent 
 makes clear. Would the Senate still demur and thus invite disaster 
 upon itself .' 
 
 Meantime a vast deal of ingenuity has been devoted to attempts to 
 reach popular control of senatorial elections by some other route than the 
 amending of the Constitution. While the form of election by the legis- 
 lature is retained, its spirit has been radically changed. In no state in 
 the Union to-day do members of the legislature proceed to the election 
 of a senator with that enlightened independence, that freedom of indi- 
 vidual discretion in the choice, from which the Fathers anticipated such 
 beneficent results. Everywhere the legislators approach the task under 
 the domination of party, and in every state where one well-disciplined 
 party is in power the result of the election is a certainty even before the 
 legislature convenes. Not only has party spirit claimed this election for its 
 own, but the party's choice for sertator is often made before the members 
 of the legislature are elected, and is obtruded upon that body by the state 
 convention. Already in about a third of the states, either under party rules 
 or in accordance with the explicit provisions of state law, direct primaries 
 name the candidates, and wherever a strong party is supreme this nomi- 
 nation is tantamount to an election. In four states provision is made for 
 a popular "" election " carried out under the supervision of officials not of 
 the party but of the state, — an election as complete in all its details and 
 formalities as is that of the governor, yet as void of legal power to bind 
 the legislature in the real election of a senator as would be the resolutions 
 adopted by a boys' debating society. 
 
 Everywhere the movement for the direct primary is gaining ground. 
 How will this advance affect the movement for an amendment authorizing 
 popular election of senators .' Both are outgrowths of the same demo- 
 cratic spirit. Some enthusiasts for the direct primary claim that the adop- 
 tion and intelligent use of that device will restore to the legislatures their 
 pristine purity and independence and fit them to perform the task of 
 selection which the Fathers devolved upon them. But this optimistic 
 forecast neglects two of the plainest lessons of experience. In the first 
 place, the betterment of the legislatures through the nomination of their 
 memlsers by direct primaries does nothing to remove the perverting and 
 
414 
 
 AMERICAN STATE GOVERNMENT 
 
 corrupting influences exerted upon the legislatures by the retention of this 
 incongruous electoral function. Of all the causes which have tended to 
 degrade our lawmaking bodies hardly any other has exerted so malign a 
 potency. To these bad influences the direct primary aims merely to sub- 
 ject a higher grade of legislators, possessed, it is assumed, of greater 
 powers of resistance. In the second place, the Oregon fiasco of 1903 
 was hardly needed to afford convincing proof that the indorsement of 
 senatorial candidates by state conventions, their nomination by direct 
 primaries, even their " election " by an overwhelming majority of the 
 vote of the people, may count absolutely for naught in influencing the 
 real election at the hands of a legislature ruled by party bosses or rent 
 by factions which this very election has brought into being. In the very 
 states where popular control of senatorial elections is most needed, the 
 best-laid schemes for its realization have proved futile. 
 
 What then is to be the outcome .■' That depends not a little upon the 
 temper and action of the Senate itself. If senators have foresight enough 
 to discern the cloud while it is yet but the size of a man's hand, the gath- 
 ering tempest of discontent may be averted. For, in comparison with a 
 rule-ridden House that has ceased to be a deliberative body, a Senate 
 that gave evidence of a sense of responsibility to public opinion might win 
 public confidence. But can self -regeneration be expected of the Senate ? 
 
 HOW THE PEOPLE ARE USING THEIR NEW POWER 
 OF NOMINATION^ 
 
 Enough direct-primary elections have now been held tiiat the public 
 may see fairly well the virtues and defects of this newest system of 
 political preferment. 
 
 The direct-primaries question is one of the big political topics before 
 the people to-day. The country at large is interested in it because a 
 score or more of states have already put it into operation. New York 
 is interested in it because it is a reform which may come in this state, 
 possibly very soon. Governor Hughes is strongly in favor of it, and the 
 whole trend of political thought nowadays is toward it. 
 
 Briefly told, the direct-primaries system is one by which the power of 
 nominating candidates for political office is taken from the bosses and 
 the corporations and lodged with the people. It is provided for under 
 state law, and as each state has its own law, there is a slight variation 
 in the different systems. The feature which is common to all the states, 
 however, is that the old party convention is abolished and the candidates 
 are chosen directly by the voters, who go to the polls as though for a 
 regular election. 
 
 The different parties vote at the same polling place, but every man is 
 required to declare his allegiance on entering the polls and to vote only 
 
 1 From New York Evening Post, 1908. 
 
ELECTIONS AND NOMINATIONS 
 
 415 
 
 on his own party ballot. In Illinois last week the Republican ballots 
 were on white paper, the Democratic on pink, the Prohibitionist on blue, 
 and the Socialist on salmon. 
 
 Candidates announce their aspirations beforehand, sometimes by 
 advertising in the newspapers. If they expect to have their names 
 printed on the official ballot, they are compelled to file notice of their 
 candidacy with the election authorities. They then throw themselves 
 into the campaign, only instead of its being Democrats against Repub- 
 ' licans, it is Republicans against Republicans and Democrats against 
 Democrats. 
 
 The Republican who wins and the Democrat who wins at the prima- 
 ries this summer are pitted against each other in the election which takes 
 place in the fall. 
 
 In a state which is pronouncedly of one political complexion, the 
 primary of the party in power is equivalent to an election. In Georgia, 
 for instance, the man named at the Democratic primaries to run for 
 governor is as good as elected. The primaries in Georgia took place 
 this year on June 4, and " Joe " Brown defeated the present governor, 
 Hoke Smith. The election will take place in the fall, but Mr. Brown 
 will not be inaugurated until next spring. Thus Georgia has the peculiar 
 anomaly of possessing two governors for a period nearly a year in length. 
 
 Strongholds of Direct Primaries 
 
 The South and the Middle West are the strongholds of the direct 
 primaries. The whole Mississippi valley has embraced them, and will 
 never go back to the old system. 
 
 Illinois, Oregon, Kansas, Missouri, and Oklahoma have recently tried 
 state-wide primaries for the first time. Other states which have held 
 primaries within the year are Iowa, Tennessee, Arkansas, Louisiana, 
 Texas, and Georgia. Wisconsin and Washington are to hold them soon. 
 
 Just as there are people who cry out against our own Public-Service 
 Commission because it does not in a day correct all the abuses which it 
 has taken astute traction men twenty years to build up, so there have 
 been plenty of people after the primaries to declare loudly that they were 
 a failure, and that the entire system would have to be abolished. On 
 careful analysis of the outcry, however, it is pretty clearly established 
 that most of it comes from the politicians and party leaders who have 
 been hurt. This is one of the greatest possible tributes to the efficacy of 
 the system. " I never heard of a politician who was fairly beaten," re- 
 marked a shrewd observer the other day, " who did n't yell out that he 
 was beaten by fraud." 
 
 On the other hand, there is room for a good deal of severe criticism 
 of the system from its friends. No new institution which practically 
 overturns all existing precedent can be made perfect in one year, or in 
 
41 6 AMERICAN STATE GOVERNMENT 
 
 five. However, there is not the slightest evidence to show that any state 
 will permit itself to go back to the old system of boss-ridden conven- 
 tions. The new laws will sirnply be amended and improved until they 
 are perfect. As De Tocqueville said, " The remedy for democracy is 
 more democracy." 
 
 Illinois as a Model 
 
 Illinois was generally supposed to have the most perfect direct-prima- 
 ries law on the statute books anywhere. Hence the result there was 
 watched with interest. Governor Deneen, who obtained the passage of 
 the law, was a candidate for renomination at the hands of the Repub- 
 licans ; and ex-Governor Yates, who had the Republican bosses, the 
 liquor interests, and various disreputable cohorts at his back, was oppos- 
 ing him. As Illinois is Republican by 300,000, the primary would 
 decide the governorship. Deneen and Yates both made whirlwind cam- 
 paigns, covering the state from Roscoe to Egypt in special trains and 
 automobiles, till the enthusiasm and bitterness of the campaign appeared 
 to be at a white heat. Two other contests of almost equal importance 
 accompanied the campaign, and a host of minor nominations were to be 
 made. What was the surprise, therefore, when it became apparent from 
 the returns that nearly half the voters had gone off golfing or fishing 
 instead of casting their votes. 
 
 . This was an almost unbelievable fact that nearly 50 per cent of the 
 voters had actually thrown away an opportunity which they had been 
 fighting for before their legislature for years. It is a peculiarity of the 
 human species that he will come to a white heat over muckraking stories, 
 and clamor at the doors of his legislature until he gets direct-primaries 
 laws, but when he gets a chance to go to the primaries and correct 
 abuses by his vote, he behaves like the European prince who made a 
 voyage to Norway to see an Arctic phenomenon which occurred only 
 once a )'ear, and who, on being awakened at 4 a.m. by his valet, said, 
 as he rolled over • " I '11 sleep this time. We '11 come up and see the 
 sky next year." 
 
 It is, then, going to be a serious question how to make sure that the 
 public will come to the primaries and not abandon them to the bosses. 
 It is believed, however, that time will remedy this. One of the greatest 
 secondary benefits of the system is that it compels the candidates to get 
 out before the people; it restores the old-fashioned catch-as-catch-can 
 style of political campaigning, and it stirs up the interest of the people 
 all over the state. In Tennessee ex-Senator Carmack and Governor 
 Patterson indulged in no less than fifty-two joint debates and drove 
 almost every other subject out of the Tennesseeans' minds for a period 
 of three months, in their campaign for the governorship nomination. 
 
 United States Senator " Jeff " Davis was compelled to leave the ses- 
 sion last spring and go on the stump in Arkansas, where, in the sound 
 
ELECTIONS AND NOMINATIONS 417 
 
 defeat which was administered to him by the Arlcansans, the last vestige 
 of political prestige which hung about his person was torn from him. 
 In the preparation for the primaries in the state of Washington, the 
 character of United States Senator Levi Ankeny is receiving the atten- 
 tion of the spot light in an abundance which Mr. Ankeny does not at all 
 relish. And in the recent fight in Kansas, where Bristow and Long 
 waged a mighty battle for the senatorship, with the Stubbs-Leland 
 governorship contest as an extra thriller, the protagonists stumped and 
 debated and press-noticed the state from one end to another, until there 
 was not the remotest hamlet nor the least well-informed old lady who 
 did not know the entire merits of the situation. 
 
 The Successful Trial in Kansas 
 
 Governor Hoch was too busy arranging Chautauqua engagements to 
 go to the polls and vote, but otherwise nearly every male person of legal 
 age did his duty, the result being different from lUinois's in that respect. 
 There was every reason to feel optimistic over the workings of the new 
 style of nominating, as exemplified in the Kansas performance, and 
 undoubtedly the sentiment of the people was registered with accuracy. 
 Senator Long's record at Washington certainly had not pleased that 
 radical state. He was too tender toward the railroads and the privileged 
 interests, and a little of that goes a long way (in the wrong direction) 
 with the Kansas people. After the returns came in William Allen White 
 wrote in the Emporia Gazette . 
 
 The gentlemen's agreement is now a thing of the past. The people will 
 rule. Yet four months ago, in the last Republican convention, the machine 
 won, and Stubbs and Bristow were disgracefully beaten. If they were can- 
 didates to-day, they would be disgracefully beaten in a convention. The state 
 convention indorsed Long in March. If it met under old conditions, it would 
 indorse him to-day. 
 
 He had the most splendid organization ever manned in Kansas. He had 
 all the campaign fund he needed to spend. He had men to run at his beck 
 and call. But Bristow, without friends, without headquarters, who could order 
 no one around, without even a skeleton organization, won this fight. He 
 spent less on his whole campaign than his opponent spent on postage. The 
 same thing that is true of Bristow and Long is true in a degree about Stubbs 
 and Leland. The machine played politics. They tried to line up class votes. 
 They endeavored to corral the labor vote as such, the old-soldier vote as such, 
 the negro vote as such, the whisky vote as such, and the railroad vote as such. 
 
 A Poor Man's Primary 
 
 But when the vote was counted, every railroad town in Kansas voted for 
 Bristow and most of them voted for Stubbs. In Emporia, where, under the 
 old system, the bosses could see the tickets the railroad men were voting, 
 the railroad men always lined up for the machine ; but under the primary 
 
4i8 AMERICAN STATE GOVERNMENT 
 
 the railroad men who cheered for Long at the Emporia meeting voted and 
 carried their ward for Bristow. Not a dollar was spent for cigars, nor a hack 
 hired in this town^ for Stubbs and Bristow, and it was the same all over Kansas. 
 It was a poor man's primary. The machine had the money, but it did not 
 have the moral sense to see that politics does n't count in a primary box, but, 
 instead, just common, ordinary folks get their views in without reference to 
 class or clan. 
 
 The heavy vote polled at this primary proves its popularity with the people. 
 And the fact that the people voted with sense and justice and were not con- 
 fused on big moral issues shows that Kansas has earned her right to political 
 and industrial freedom. The primary now prevails all over the Mississippi 
 valley, and it will stay as long as universal suffrage. It is a step in the politi- 
 cal evolution of the American people. It puts the politician and the public- 
 service corporation out of political business. Eventually it will put the United 
 States Senate and the American courts out of the hands of the law-defying 
 wealth and into the hands, of the masses. It is not revolution. It is evolu- 
 tion. But it will fail if selfishness and greed and partisan bigotry get into it. 
 The primary will succeed only as men vote for the good of their neighbors ; 
 only as they are broad-minded, self-sacrificing, and brave. For " unless the 
 Lord keepeth the city, the watcher wakens but in vain." 
 
 The Expense Argument 
 
 Automobiles, special trains, hall hire, postage, and advertising, with 
 all the other incidentals of a furious campaign, are expensive, and the 
 argument has been made that the direct-primary system prevents the 
 poor man from entering the race. This objection ignores the fact that 
 the old system also prevented the poor man from entering the race, 
 unless he was willing to have his expenses paid by the boss and be sub- 
 servient to the boss's orders. Furthermore, the objection is untrue. 
 The Chicago papers were full of advertisements carrying portraits and 
 recommendations of different candidates, before the primaries, but it is 
 noticeable now that very few of those who had their pictures in the 
 papers succeeded at the polls. This may have been a mere coincidence, 
 but it proves that a man can be elected without spending money in that 
 way. When Mr. Bristow announced his candidacy in Kansas, number- 
 less newspapers throughout the state wrote, soliciting his advertisement, 
 but he wrote back a courteous note to all of them, saying that he would 
 like to spend the money that way if he had it, but, being a poor man, 
 he could not afford any advertising, and must refuse them all. This did 
 not prevent his winning. 
 
 One very serious defect is that no law yet developed prevents Demo- 
 crats from voting the Republican ballot, and vice versa. There are 
 theoretical safeguards against this, but they are not sufficient, as was 
 demonstrated in the Missouri and Illinois primaries. To vote in Illinois, 
 one merely has to be a registered voter, or have his vote sworn in if he 
 is not registered, whereupon he may vote the ballot of the party to which 
 
ELECTIONS AND NOMINATIONS 419 
 
 he belongs provided, (i) he has not signed the petition of a candidate of 
 another party to be voted on at the primary ; (2) he has not signed a 
 nominating petition for an independent candidate to be voted for on 
 November 3 ; and (3) he has not voted the primary ticlcet of any other 
 party within the past two years. To make the restrictions more severe 
 would make it difficult for the independent voter to get his baUot in. 
 Hence the makers of the primaries law are between Scylla and Charyb- 
 dis. This is evidently the greatest problem which the situation presents 
 at present. 
 
 Behavior of Democratic Wards 
 
 In Chicago it was astonishing, not to say amusing, to see how certain 
 preponderatingly Democratic wards cast Republican majorities in the 
 primaries. The reason for this was not difficult to see. The Democrats 
 knew that if the best Republican candidates were nominated, the chance 
 of electing Democrats against them would be zero. Hence their only 
 chance lay in going to the polls and voting as Republicans for the worst 
 R'epublican candidates. To make the illustration concrete, the Democrats 
 thought that if the Republican Yates could be nominated (instead of 
 Deneen), their own candidate might stand a chance of defeating him in 
 the election next fall. Consequently they flocked to the polls and voted 
 the white ballot instead of the pink. Their own nominee turned out to 
 be ex-Vice President Adlai E. Stevenson, who might conceivably have 
 beaten Yates, if Yates had been nominated ; but unfortunately Deneen 
 was chosen on the Republican ticket instead of Yates, despite all their 
 efforts. 
 
 When the Chicago newspaper editors examined the wafd tables next 
 day they began to exclaim, " What 's become of the Democratic party in 
 Chicago ? " If in our famous "" gas-house district " here in New York, 
 where Charles F. Murphy's followers abound in the proportion of three 
 to one, there should be a primary in which less votes were cast for the 
 Tammany candidates than for the Citizens Union, the situation would 
 be analogous. 
 
 Throughout Chicago the Democratic vote on the governorship totaled 
 54,g73, — this in a city where Edward F. Dunne, Democrat, got 151,779 
 votes for mayor sixteen months ago. 
 
 The total Republican vote was i34>9ii. or nearly 80,000 majority 
 over the Democratic, — this in Chicago, which is still considered a nor- 
 mally Democratic city. 
 
 In the ninth ward, a Democratic fortress, the entire Democratic vote 
 was only 952, while Yates alone on the Republican ballot got 2282. 
 In many other wards the same thing happened. A certain personage 
 at Oyster Bay might be grieved to know that in Chicago's thirty-fourth 
 ward the vote was 119 larger than the record-breaking vote given to 
 Roosevelt in 1904. 
 
420 
 
 AMERICAN STATE GOVERNMENT 
 
 It is believed that, without these illegal Democratic votes, Represent- 
 ati\e Foss would have been nominated over Senator Albert J. Hopkins 
 for the United States Senate, and that John J. Healy, the present state's 
 attorney (district attorney, we call it in New York) of Cook County 
 (Chicago) would have been renominated over Wayman, who led by a 
 plurality of only 729. There is talk of independent candidacies in these 
 two contests. 
 
 The Senatorship Problem 
 
 Finally, one of the problems which is most perplexing the champions 
 of the direct primaries is that which has to do with the nominating of 
 United States senators. This one problem has made more trouble than 
 all others put together, but it seems to be due chiefly to a certain vague- 
 ness on the part of the statute, which allows of various interpretations. 
 
 In Illinois and various other states the people's selections for United 
 States senator are only advisory. As the choice of senators comes under 
 the federal law, it cannot be usurped by state law, and the final power 
 to elect still rests with the legislatures. Some of the state laws get 
 around this, however, by electing legislatures at the same time, and re- 
 quiring candidates for the legislature to abide by the will of the people 
 as expressed at the primaries. 
 
 In Oregon the people are anxiously waiting to see whether the Repub- 
 lican legislature will fulfill its pledge to elect Governor Chamberlain, who, 
 though a Democrat, was chosen at the primaries to succeed Senator 
 Fulton in the United States Senate. There is little doubt that the legis- 
 lature will be true to its promises, but the contemplation of a Demo- 
 cratic senator chosen by a Republican legislature has nearly disrupted 
 the Republican party in that state for the time being. In the neighbor- 
 ing state of Washington, Senator Levi Ankeny wishes to succeed him- 
 self, but stands a very poor chance of being chosen in the coming 
 primaries. He is causing the people many sleepless nights by threat- 
 ening to be a candidate before ,the legislature, whether he is chosen 
 at the primaries or not. Oregon and Washington have spilled as 
 much ink over these vexatious possibilities as San Francisco has over 
 '" graft." 
 
 Senator Hopkins received a plurality in Illinois, but Congressman 
 Foss says that he will be a candidate before the legislature on the ground 
 that he carried a plurality of the legislative districts. (Later returns 
 indicate that he did not.) If Foss stays in the fight, so also will ex- 
 Senator '" Billy " Mason, who proved a close third in the primaries. 
 
 Wisconsin, which holds its primaries on September i, has a scare 
 on its hands in the shape of Senator Isaac Stephenson. "' Uncle Ike " 
 was elected to the Senate two years ago to fill out the unexpired term 
 of Senator Spooner, who resigned. He was elected on the specific 
 pledge that he would be satisfied with the short term and not run again. 
 
ELECTIONS AND NOMINATIONS 421 
 
 Now that the time has come, he has chosen to ignore his promise, at 
 the expense of his friendship with Senator La Follette, and has entered 
 the race. 
 
 SENATORIAL DEADLOCKS ^ 
 
 From 189 s down to the present there has been only one Congress 
 in which the full membership of the Senate sat. In all the others there 
 were one or more vacancies, due to the failure of state legislatures to 
 choose senators. 
 
 At present the Senate's membership is incomplete, the state of Rhode 
 Island having failed, after an all-winter effort of its legislature, to elect 
 a senator in place of George Peabody Wetmore. There was a full 
 Senate for a short time after Delaware had elected Colonel Henry A. 
 Du Pont ; thfen, with the expiration of Wetmore's term and the failure 
 to elect in Rhode Island, the upper house returned to its chronic 
 condition of short-handedness. 
 
 The senatorial deadlock is responsible for this condition. The dead- 
 lock is a matter of comparatively recent development. There were occa- 
 sional failures of state legislatures in the early history of the country to 
 elect senators, but until within about twenty-five years these were excep- 
 tional. But nowadays seats in the American House of Lords are so 
 highly prized, the stake is so immense, and political feeling runs so high 
 over them, that it is the exception to pick on a date at which all the 
 seats have been filled. 
 
 The problem of the Senate looms larger year by year in the American 
 system. In Great Britain there is solemn talk of abolishing their House 
 of Lords. That cannot be done in America. Nothing short of revolu- 
 tion would accomplish it. The complaint against the Lords — in both 
 countries — is that they are not sufficiently responsive and responsible 
 to public opinion. 
 
 So it is interesting to note that only a little more than a century ago, 
 when the Constitution of the United States was being drafted, there 
 was serious support for the proposal to have the President name the 
 senators, and name them for life. That was based, of course, on the 
 English system, where the peers are created by royal mandate. 
 
 In a century the Senate, which under that system would have come 
 to be a mere reflex of the executive will, has developed so far in the 
 opposite direction that it is now esteemed the chief barrier to the exe- 
 cution of executive designs. Mr. Cleveland despised it, and Mr. Roosevelt 
 simply cannot get along with it. But otherwise the Senate has lived up 
 to the purpose of its founders, who wanted it to stand between the 
 country and an excess of democracy. 
 
 De Tocqueville, a French writer on our institutions, said that " the 
 cure for the evils of democracy is more democracy." That theory is 
 
 1 Fr<fai the New York Herald, June 9, 1907. Reprinted by permission. 
 
42 2 AMERICAN STATE GOVERNMENT 
 
 pretty widely accepted nowadays. But in the times when the fathers of 
 constitutional govemment were worr)ing over the Constitution which 
 the rest of us have worried over ever since, the Frenchman's notion 
 had not sunk in very deep on this side the Atlantic. The great fear 
 was of too much democracy. A house of peers, of privilege, of aris- 
 tocracy, of heredity, — of something exclusive and aloof, anyhow, — 
 was wanted by most of the men who sat in the Constitutional Con- 
 vention. Only one state, Pennsylvania, voted for popular election of 
 senators, and that state was dominated in doing so by one man, James 
 Wilson. To-day popular election of senators is one of the pressing issues 
 before the nation. 
 
 Blockades tie up States 
 
 The decision to have senators elected by the state legislatures was a 
 compromise between popular election, which meant too much democ- 
 racy, and presidential appointment, which meant too little. Nobody 
 dreamed that in time the compromise would result in the senators con- 
 trolling the legislatures. If some seer could have arisen to tell the Con- 
 stitutional Convention that this system would bring about a condition in 
 which legislatures would be completely dominated by the responsibility 
 for a senator's election, they would have laughed at him. Yet we have 
 seen it come to pass that the whole legislative business of a state con- 
 taining more people than there were in the United States at the end of 
 the Revolution has been subordinated and forgotten in the pressure to 
 control the senatorial election. The senators, who were expected to be 
 the creatures of the legislatures, have come to be their masters. 
 
 Originally seats in the House of Representatives were more prized by 
 most men than those in the Senate. The full significance of the Senate's 
 participation in the executive power, of its control over patronage and 
 its part in treaty making, were not appreciated. But to-day the people 
 of real consequence in this government are the senators. They make 
 terms with the executive, they control the patronage, and they head the 
 delegations which nominate presidents in national conventions, and, per- 
 haps more than all, they actually control legislation in Washington, par- 
 ticularly all that bears on production and exchange, — -a power that 
 cannot be overstated in terms of importance and range. 
 
 \\'ith this tremendous growth of the prestige and power of the Senate 
 has come the senatorial deadlock, the condition in which pressure upon 
 the state legislature becomes so great as to paralyze it and prevent its 
 performance of the function of senatorial election. 
 
 Since 1891 there have been no less than forty-six deadlocks in state 
 legislatures. In thirteen of these cases the legislative session, after many 
 weeks of effort, has adjourned without an election. Only within a short 
 time the legislature of Rhode Island has given up in despair, unable to 
 choose a senator. The Wisconsin legislature has just chosen a senator 
 
ELECTIONS AND NOMINATIONS 
 
 423 
 
 after a contest which really began on March 3. The remarkable experi- 
 ences of Delaware, Montana, Pennsylvania, and Nebraska, as well as 
 other states, hardly need to be recounted to suggest how entirely the 
 business of choosing senators has come to be the overshadowing, all- 
 engrossing function of legislatures. Everything else has been traded off, 
 neglected, or forgotten, in the eagerness to devote attention to this. Not 
 only have nearly one third of these deadlocks resulted in failure to elect 
 at all, but about as many more have ended in the selection of men 
 utterly unknown as senatorial timber, — men agreed on as compromises 
 between bitterly hostile factions, whose availability too often consisted 
 in the fact that they were unknown, untried, untested, unmeasured, had 
 not been far enough involved in the affairs of their communities even to 
 have become identified with their political divisions I Here is a list of the 
 cases of deadlocked legislatures since 1891, which is given by Dr. George 
 H. Haynes in "The Election of Senators," published recently. Dr. 
 Haynes does not pretend that it is a fair representation of this aspect. 
 
 Here are the Deadlocks 
 
 It is only a list of deadlocks in legislatures. It takes no account of 
 the scores of contests in political conventions and caucuses in which 
 senatorships have been at stake, but from the legislative records alone 
 this list is made up : 
 
 Year 
 
 State 
 
 Days 
 Dead- 
 locked 
 
 Senator Chosen 
 
 1891 
 1893 
 
 1895 
 1896 
 
 Florida . . 
 North Dakota 
 South Dakota 
 Montana 
 Nebraska . 
 North Dakota 
 Washington 
 Wyoming . 
 Delaware 
 Idaho . . . 
 Oregon . . 
 Washington 
 
 
 35 
 
 3 
 
 27 
 
 5° 
 21 
 
 33 
 
 51 
 
 51 
 
 114 
 
 51 
 
 32 
 
 9 
 
 S8 
 
 24 
 IS 
 36 
 53 
 29 
 
 17 
 
 7 
 
 Wilkinson Call 
 H. C. Hansbrough 
 J. H. Kyle 
 No election 
 W. V. Allen 
 W. N. Roach 
 No election 
 No election 
 No election 
 G. L. Shoup 
 G. W. McBride 
 J. L. Wilson 
 No election 
 
 Louisiana . 
 Maryland 
 
 
 S. D. McEnery 
 G. L.Wellington 
 
 1897 
 
 
 S. R. Mallory 
 
 Idaho . . 
 Kentucky . 
 
 
 Henry Heitfelt 
 W. J. Deboe 
 No election 
 
 
 South Dakota 
 
 Utah 
 
 Washington . . .... 
 
 J. H. Kyle 
 J. L. Rawhns 
 George Turner 
 
424 
 
 AMERICAN STATE G()\'ERNMENT 
 
 Year 
 
 State 
 
 Dais 
 Dead- 
 locked 
 
 Senator Chosen 
 
 1898 
 1899 
 
 1 90 1 
 '903 
 
 Maryland . . 
 
 Delaware 
 
 Montana . • 
 
 Nebraska 
 
 Pennsylvania 
 
 Utah . . ... 
 
 Wisconsin .... 
 
 Delaware . 
 
 Delaware ... 
 
 Montana . . . . . 
 
 Nebraska . . 
 
 Nebraska . . 
 
 Oregon 
 
 Delaware 
 
 Delaware 
 
 North Carolina 
 
 7 
 64 
 17 
 50 
 92 
 
 ^8 
 52 
 52 
 51 
 7- 
 72 
 
 41 
 41 
 10 
 32 
 9 
 16 
 80 
 60 
 
 L. E. McComas 
 No election 
 W. A. Clark 
 M. L. Hayward 
 No election 
 No election 
 J. V. Quarles 
 No election 
 No election 
 Paris Gibson 
 C. H. Dietrich 
 J. H. Millard 
 J. II. Mitchell 
 J. Frank AUee 
 L. I-I. Ball 
 L. S. Overman 
 C. W. Fulton 
 
 1904 
 1905 
 
 Washington 
 
 Maryland 
 
 Delaware . . .... 
 
 Missouri 
 
 Levi Ankeny 
 Isidor Rayner 
 No election 
 William Warner 
 
 <3f the famous deadlocks the series in Delaware incident to the deter- 
 mined effort of J. Edward Addicks to break into the Senate was easily 
 the most famous. It may not be inappropriate to set down here an 
 accurate outline of this contest, which has never before been printed. 
 Addicks began by controlling four or five members of the 1895 legisla- 
 ture, when Higgins was a candidate. Addicks finally agreed that on the 
 last day he would vote his people for Dr. Burton — now a member of 
 Congress — if Higgins would do the same and elect him senator. Addicks 
 carried out his agreement, but Higgins failed, and voted his men for 
 Du Pont, leaving the agreement a failure and the state a vacancy. 
 
 After that Addicks worked incessantly and built up a machine in the 
 state. There is no doubt that he spent millions on his ambition to be 
 senator, — how many is only subject for conjecture. At any rate, when 
 the 1896 campaign was coming on, he, in control of the state, had a 
 deal with Quay, Reed, and the other anti-McKinley people, under which 
 he took an uncontested delegation to St. Louis to vote with the anti- 
 McKinley forces. The contest was organized after arrival there, Higgins 
 protesting the Addicks delegation. The Hanna-McKinley people, in 
 complete control, offered first to seat the Addicks delegation if it would 
 split its vote. Addicks, who was for William B. Allison for president, 
 refused, and his delegation was rejected. Four years afterward, at 
 Philadelphia, the Iowa delegation took a leading part in seating another 
 Addicks delegation, simply as a means of paying back the loyalty of 
 Addicks to Allison. 
 
ELECTIONS AND NOMINATIONS 425 
 
 At the 1899 senatorial election the Higgins people refused to enter a 
 caucus and there never was a chance of electing a senator. At the third 
 deadlocked session the Addicks and Du Pont people agreed to elect 
 a senator, — Senator Dick, of Ohio, as emissary from Mark Hanna, 
 arranging the deal. As a result Du Pont and Addicks gave up their per- 
 sonal ambitions and Allee and Ball were elected. At the fourth encounter 
 Roosevelt politics entered Delaware for the first time. AUee had become 
 a Roosevelt adherent, — Roosevelt now being president, — and through 
 the White House influence was induced to cut Addicks and make a deal 
 with Du Pont. Under this deal Du Pont agreed to take the senatorship in 
 succession to Ball and then turn in with all his influence and help reelect 
 Allee. It was carried out to the extent of electing Du Pont ; but being 
 once elected, Du Pont betrayed Allee, just as Allee had betrayed Addicks. 
 Du Pont not only wanted to be senator, but he wanted to be the senior 
 senator, — the real boss. So he refused when the time came to support 
 Allee ; he threw his strength to Harry A. Richardson, elected him, and 
 left Allee out in the cold. 
 
 And thereby hangs the tale. Allee was very, very sore. He was also 
 very close to the White House. During his relations with the Du Ponts 
 he had learned the secrets of the Powder Trust. After he had been shut 
 out by the Powder Trust's senator he decided to explode that particular 
 trust. So he went to the White House, told what he knew about the 
 powder combine, and forthwith there was announcement that the powder 
 octopus would be prosecuted. The attorney-general is now busily on its 
 trail and this is the real story of the case. Everybody in the senatorial 
 " family " knows it. The senatorial " family" is the group of elder states- 
 men who are custodians of the traditions, the conscience, and the manners 
 of the upper chamber. The " family " is the most select and exclusive 
 thing in America. 
 
 There have been at least two cases in recent years of men getting a 
 clear majority of the votes in a legislature and still not being elected. In 
 1895, in Oregon, Senator Dolph got the caucus nomination, and in the 
 separate conventions of the two Houses of the legislature was elected. 
 But before the joint convention on the next day enough votes were taken 
 away from him to prevent his getting a majority in the joint convention, 
 and he was never again so near election. In the end McBride was elected. 
 That deal was engineered from beginning to end by Fred Dubois, who 
 on March 4 retired as senator from Idaho. Dubois was a representative 
 of the silver wing of the party, which suspected Dolph of not being 
 firmly devoted to silver's cause. Later Dubois himself " flopped " on 
 this issue and was elected senator a second time in his own state as 
 a Democrat. 
 
 The Missouri case of 1905 was similar and is better recollected. Neid- 
 ringhaus, chairman of the Republican State Committee, received a 
 majority of the votes of each House on the first day of balloting, and that 
 
426 AMERICAN STATE GOVERNMENT 
 
 night received congratulations from all over America, including one from 
 the President. But next day in joint convention he failed to connect with 
 the same support, and within three weeks he was withdrawn from the 
 fight. A scandal about his collection of funds from St. Louis brewers 
 during the preceding campaign was his undoing. 
 
 One of the most famous deadlocks was that of 1899 in Pennsylvania, 
 when Quay failed of election and the legislature adjourned without action. 
 The state's governor afterward appointed Quay to fill the vacancy. When 
 the question of accepting his credentials came up in the Senate a number 
 of senators voted to admit him, although explaining that they did not 
 believe it was constitutional. Quay was personally very popular in the 
 body, and this fact was frankly given as the reason why several voted to 
 admit him. The decision rejecting him was made by a majority of one 
 vote, which Hanna cast. Hanna had never forgiven Quay for his ac- 
 tivity against McKinley. Afterward Hanna himself stood at the bar of 
 the Senate, charged with bribery in getting his election in Ohio, and Quay 
 voted to seat him. Indeed, in that fight for control in Ohio, Quay was 
 perhaps responsible for Hanna's victory, for he " fixed " a member of 
 the legislature who had once lived in Pennsylvania and been a member 
 of the Quay machine. This man went to Quay to ask his advice and 
 Quay told him to support Hanna. But though he stood by Hanna at 
 that time, Quay opposed him in many instances, especially the statehood 
 matter, and defeated him more than once. 
 
 Montana's senatorial deadlocks, like those of Delaware, have centered 
 around the ambition of a rich man to be a senator. The Daly-Clark feud 
 was at the bottom, with the possession of the senatorship only an inci- 
 dent and the control of the great Anaconda Mine as an even greater item. 
 
 When Compromises Come 
 
 The senatorial deadlocks have often resulted in compromises which 
 sent to the Senate unknown and inexperienced men. Thus in 1901 the 
 leading candidates for the Senate in Nebraska were Edward Rosewater 
 and David E. Thompson, now ambassador to Brazil. The Republican 
 caucus made the remarkable rule that the nominees must have a majority 
 of the entire legislature in order to be nominated, — that is, of the eighty- 
 six Republicans in the caucus, seventy-four must be for the nominee. This 
 made an almost impossible combination, and Hanna, then the Republican 
 national chairman, sent emissaries repeatedly to Lincoln in the effort to 
 have it changed. Thompson and Rosewater were the organization candi- 
 dates, state and national. But though both came within feeling distance, 
 neither was ever nominated. On the night before the last day of the 
 session, in a perfect riot, Charles H. Dietrich and J. H. Millard, both 
 unknown to public experience, were nominated, and on the last day 
 they were elected senators. As has commonly been true of men thus 
 
ELECTIONS AND NOMINATIONS 
 
 427 
 
 nominated by accident, they were not equipped for such careers, and 
 neither made a happy fit in the position. 
 
 It would be impossible to make an estimate of the money that sena- 
 torial deadlocks ■ have cost. Clark and Addicks doubtless spent more 
 money on their senatorial ambitions than any other men. Quay spent for- 
 tunes, but he managed to have "plum trees " handy to shake at the right 
 moment. The Camerons, father and son, spent great sums on politics, 
 and Hanna was accused by the most direct testimony of bribery. Last 
 winter there was a great flurry over charges that Simon Guggenheim, 
 just elected senator from Colorado, had frankly admitted that he supposed 
 his money got him his election. There is a long list of men in the Senate 
 — many of them in no wise discreditable to the body, either — who could 
 not possibly have been there but for their wealth, and a still longer list 
 of those who could not be there but for the wealth behind them. The 
 expenditures, however, by a senatorial candidate to secure election are 
 generally insignificant compared to the immense cost of a deadlock to 
 a state, which pays all the bills for the legislature, its employees, salaries, 
 printing, and incidentals, while it is worrying over a deadlock. As a rule, 
 when there is a senatorial deadlock on, it -gets all the attention; other 
 business is quite incidental. On an average, state by state, it probably 
 costs $5000 a day to keep a legislature in session ; that is, every day of 
 the contest has cost a year's salary of the senator who was not being 
 elected. It is safe to say that the states pay a good deal more money for 
 the election of their senators than the United States afterwards pays the 
 senators in salaries, — probably several times as much. 
 
 There is, of course, insistence in many quarters that the popular 
 election of senators would remedy all of this. Perhaps it would, but it 
 is farther away than ever before. That is the cold fact. Why, it may be 
 asked, has there not been a determined, nation-wide movement to bring 
 about popular elections ? Are not most people in favor of the change ? 
 
 Probably all this is true, but in recent years there has been experience 
 with something that approximates closely to popular election of senators. 
 This is the nomination of senatorial candidates, in the southern states, by 
 direct popular vote in a state-wide primary. The South being overwhelm- 
 ingly Democratic, the only real contests there are in the Democratic pri- 
 maries. So the senators come nearer to representing an expression of 
 popular wish than they possibly could under another system. 
 
 Under this system of popular nomination by direct vote the South has 
 sent to the Senate such men as Clark and Jefferson Davis, of Arkansas, 
 and has retired such men as James K. Jones and General Berry. It 
 has elected Beckham and Paynter, in Kentucky, over Blackburn and 
 McCrary. It has sent up Overman and Simmons from North Carolina, 
 Clay from Georgia, and others of like character. Now these may be good 
 senators, but they have not impressed the Senate favorably. That is the 
 cold, uncomfortable truth. The elder statesmen say that the " popular " 
 
428 AMERICAN STATE GO^'ERNMENT 
 
 senator is so eternally busy looking after his popularity — keeping in 
 touch with his people — that he has no time for the business of legisla- 
 tion. They do not like the results of popular election, so far as they have 
 studied them in these instances. 
 
 There is no very deep-seated antagonism to popular election in the 
 Senate aside from this view. The notion that senators oppose popular 
 elections because they are fearful of losing their own skins is mainly 
 buncombe. The senator who is already in would, on the average, have 
 a better chance in an election than before a legislature, because he would 
 have the advantage of prestige and acquaintance. It is not so much 
 selfishness as an honest belief that the plan would not give the Senate 
 the best of men that keeps the Senate from adopting the popular amend- 
 ment resolutions. 
 
 The argument may not be very logical, but it serves the purpose of 
 the senators. An analysis of the Senate's membership recently indicated 
 that about one third were utter accidents and another third either rich 
 men or accepted representatives of wealth. But of the " accidents " a 
 number were rated as most useful and effective senators, while of the 
 wealthy men the worst that could be said in half the cases or more was 
 that they were wealthy. Under either rule, in short, of legislative or of 
 popular election there will come good men and poor ones. The worst 
 thing about legislative election is its demoralizing influence on the legis- 
 latures. The state all too often gets nothing out of a long and expensive 
 session of its legislature, simply because the senatorial deadlock prevents 
 the body making itself useful. 
 
 GOVERNOR FOLK ON BRIBERY LAWS ^ 
 
 State of Missouri, Office of the Governor 
 
 Jefferson City, Mirch 9, 1905 
 To the Senate : 
 
 The antibribery bill now pending before you is of such importance to 
 the public welfare that I feel I should be derelict in my duty, were I not 
 to call your attention especially to it and give you my reasons for recom- 
 mending its passage. 
 
 This bill, in a different form, has been considered by you heretofore, 
 but failed to receive a sufficient number of votes to pass. Without criti- 
 cizing those who opposed it, and without questioning their motives in the 
 least, I cannot but believe the purpose of the measure was not fully under- 
 stood by some of those who voted against it. In order that you may be 
 thoroughly advised in the premises, and to give you such assistance in 
 arriving at a just conclusion as I may be able to, this message is sent you. 
 
 This bill compels witnesses to bribery transactions to testify, and 
 exempts them from prosecution by reason of any matter arising directly 
 
 1 From special message, 1905. 
 
ELECTIONS AND NOMINATIONS 429 
 
 or indirectly out of their testimony.. It has been claimed that the measure 
 conflicts with the federal and state Bill of Rights, providing that no person 
 shall be compelled to testify against himself in a criminal case. The 
 attorney-general, in an able and clear opinion, now before you, holds there 
 is no such conflict. This constitutional provision has been repeatedly con- 
 strued, both by our state courts and the federal courts, to mean that no 
 person shall be compelled to testify as to any matter for which he may be 
 prosecuted on a criminal charge. If, therefore, the statute exempts the 
 witness so testifying from prosecution, it accords him- every right the Con- 
 stitution gives. No man has a constitutional right to take bribes or to 
 commit any other crime. The only right conferred in this respect by the 
 Constitution is that one shall not be compelled to furnish evidence to con- 
 vict himself, or that may be the basis of a criminal prosecution against 
 himself. As the proposed statute makes it so that any person by the act 
 of testifying secures amnesty or pardon, it is clear that the constitutional 
 guaranty is fully satisfied. 
 
 Again, it is insisted that although the person testifying as to his knowl- 
 edge of bribery cannot be prosecuted criminally under this act, he is 
 forced to expose his own infamous conduct, and that it would not be 
 just to thus degrade him. The Constitution never intended to protect a 
 man who commits a crime from disgrace, but only from punishment by 
 reason of his own testimony. One who thinks so little of his reputation 
 as to give or take bribes is not in a position to complain because the law 
 compels him, in the interest of public justice, to tell about it. The man 
 who has not given or taken bribes cannot be affected by the act at all, 
 and the man who has done so has no right to ask that the law protect his 
 reputation. The state has rights as well as those who give and take bribes, 
 and the rights of the state are to have corruption exposed and prosecuted 
 where possible. This right of the state is limited by the right of the 
 criminal not to be prosecuted upon any matter arising directly or indirectly 
 out of his testimony. 
 
 The proposed act is not revolutionary or radical. It follows precedents, 
 in this and other states, of long standing. For many years Missouri has 
 had a statute on the books, now Section 2206, Revised Statutes, 1899, 
 compelling witnesses in gambling matters to testify, and providing that 
 their testimony shall in no case be used against them. This statute, in 
 ex parte Buskett, 106 Mo., was held not to conflict with the constitutional 
 provision, that no person shall be compelled to testify against himself, and 
 that the protection given by the statute to the witness against prosecution 
 sufficiently answered the constitutional limitation. The statute was again 
 before our supreme court in ex parte Carter, 166 Mo. 604, where it 
 was held invalid, because the protection afforded the witness by the statute 
 against prosecution was not coextensive with that intended to be furnished 
 by the Constitution. It is clearly implied in this case, however, that if the 
 protection from prosecution had been broad enough, there could have been 
 
430 AMERICAN STATE GOA'ERNMENT 
 
 no constitutional objection to the act. The Interstate Commerce Law, 
 enacted by Congress, compels witnesses to testify before the Interstate 
 Commerce Commission, affording them the same protection from prose- 
 cution by reason of their testimony as the proposed bribery law. The 
 United States Supreme Court, in Brown ?t. Walker, i6i U. S. 591, held 
 that the act did not conflict with the Bill of Rights, and that a witness 
 could be compelled to testify as to any matter, even though it involved 
 a crime upon his own part, as the act afforded him absolute immunity 
 from prosecution. 
 
 Many states have statutes compelling witnesses to gambling transactions 
 to testify, giving them exemption by reason of such testimony, and such 
 acts have been uniformly upheld by the courts. So the act is in thorough 
 accord with well-established precedents. 
 
 It has also been urged against the bill that it will compel either the 
 giver or taker of bribes to turn state's evidence. The bill is intended to 
 accomplish this very thing. If there is no informer in bribery, there can 
 be no exposure or prosecution of bribery, for outsiders cannot, from the 
 nature of the offense, know anything about it. While no one can admire 
 an informer, he is more to be credited for telling the truth as to corrup- 
 tion than for concealing it. His condemnation should result from the 
 crime committed and not because he becomes a state's witness. To a 
 considerable extent the prevalence of bribery in this country is due to the 
 imperfect and insufficient means provided by law for its detection. Such 
 provisions as have heretofore been enacted have for their chief object the 
 punishment of bribery. But the boodler must be caught before he can 
 be punished. He cannot be detected unless some other boodler turns 
 state's evidence. To argue against the practice of having some one turn 
 state's evidence is to argue against the exposure of corruption, fOr there 
 is no other way to do it. 
 
 The law is strong enough, so far as punishment for bribery is concerned 
 after it is detected ; but the law, as it is now, is infirm and halting when 
 it comes to securing testimony establishing bribery. The first requisite 
 is to discover the evidence necessary to prove the facts constituting the 
 offense. To this end the law should compel bribe givers and takers to 
 tell the truth when called upon, and not allow one to shield the other 
 under a plea of constitutional privilege personal to himself. Not only 
 that, but the law should hold out an incentive in the way of immunity to 
 induce either the giver or the taker of bribes to make a complete dis- 
 closure of all the circumstances pertaining to the offense. It would be 
 well to punish all, but as that is manifestly impossible, it is far better that 
 all should be exposed and some punished than the facts never to be 
 known at all. 
 
 I regard this as one of the most important measures that has been 
 presented to this general assembly. It is a most necessary weapon for 
 the state in the war against bribery. With it upon the statute books I do 
 
ELECTIONS AND NOMINATIONS 431 
 
 not believe that any will be so bold as to give or take bribes, for all will 
 know that either party may secure immunity from prosecution by giving 
 evidence of the transaction. Bribery, by reason of the secrecy with which 
 it is done, and the fact that all the parties to it are equally guilty, has 
 always been the hardest of crimes to prove. When one man robs another 
 the robber is guilty, the robbed innocent ; when one man assaults another 
 the person making the assault is guilty, the person upon whom the assault 
 is made is innocent. In such cases testimony can easily be secured to 
 enforce the law. In bribery, however, the man who gives the bribe is 
 guilty, and the man who takes the bribe is guilty. This fact has always 
 been a barrier to justice and a protection to the offenders, as one could 
 not expose the other without incriminating himself. For many years the 
 necessity of some means of facilitating the procurement of evidence in 
 bribery cases has been recognized. Some have argued that the bribe 
 taker alone should be guilty, and that this would prevent the crime, as 
 no one would take a bribe, knowing that he was committing a felony by 
 so doing, and that the person giving it was free to disclose him. Others 
 have insisted that the bribe giver alone should be guilty. The object 
 sought by these various suggestions was to have only one of the parties 
 guilty, so the state could secure the evidence of the other. The proposed 
 act accomplishes the purpose intended by these suggestions much better, 
 by allowing either side to testify and giving immunity to the person who 
 does testify. 
 
 Until the prosecutions were commenced in Missouri, some three years 
 ago, there were only about thirty-four cases of bribery recorded in the 
 books in the preceding hundred years of our country's history. This was 
 not because the crime was uncommon, but on account of the difficulty 
 in securing testimony. In the Missouri cases the policy was adopted of 
 allowing either side to testify without being prosecuted. It was an inno- 
 vation then, but it has since been followed all over the country, and the 
 result has been that there have been more bribery prosecutions within 
 the past three years than in the century preceding. It is my belief that 
 the proposed statute, if enacted, would make bribery so dangerous that 
 very few would attempt to practice it. While under it all cannot be 
 punished, yet all can be exposed. And after all, in the cure of corruption 
 exposure is the main thing. While the punishment of the guilty is desired, 
 it is far better to have exposure without punishment than punishment 
 without exposure, if such a thing were possible. The result of a crusade 
 against corruption cannot be measured by the number of men in stripes, 
 but can only be gauged by the quickening of the public conscience to the 
 necessity of stamping out the things that dishonor. The remedy for cor- 
 ruption in its last analysis is in the sense of popular rectitude. It has not 
 been many years since bribery was not considered seriously. Then came 
 the revelations and the realization that it is an offense that, if tolerated, 
 will undermine and destroy free government. Missouri's fight against 
 
432 AMERICAN STATE GOVERNMENT 
 
 this evil is going to be kept up with never-ceasing vigor. The sentiment 
 against bribery is in the hearts of the people of this state, and can 
 never die. 
 
 The proposed measure is an important help in the eradication of 
 corruption, for it strengthens the lavi^ where it is feeblest, and will do 
 more than anything else to put a stop to bribery. 
 
 Respectfully, Jos. W. Folk, Governor 
 
 THE STATE BOSS' 
 
 The political boss of any state, when fully developed, is readily recog- 
 nizable by the public. Not only is he known individually, but his general 
 characteristics and powers are estimated correctly. He is not popular 
 with the people, not even with the rank and file of his own party. The 
 " workers " like him, the party machine yields him a cheerful obedience, 
 the legislature does his will ; but the masses distrust him. He elects 
 mayors, governors, legislators, but he himself can be elected to no office 
 in the gift of the people. When he attains office, as he often does, it is 
 by executive appointment or through the agency of a legislative body. 
 The one high office open to him is that of United States senator, as is 
 evident from the political history of the states of Pennsylvania, New 
 York, Maryland, and Ohio. 
 
 The devil is said to be persevering, and, no doubt, finds the one good 
 quality essential to the success of his calling. In like manner, and un- 
 questionably for a like reason, the boss has the single virtue of being 
 true to his word in all business transactions. Whether acting as the paid 
 agent of an individual or a corporation, or whether dealing with sub- 
 bosses and heelers, his promises are to be relied upon. Only in his rela- 
 tions to the public does the rule not hold good. The people he fools and 
 deceives unhesitatingly and openly. 
 
 What is the cause of bossism ? Why is its power constantly augment- 
 ing, its field continually widening ? Or, to put the case more definitely, 
 by what means is the state boss able to name the governor and dominate 
 the legislature of his state ? 
 
 His immediate source of power is control of the state organization of 
 the dominant political party. 
 
 It will be observed that, with scarcely an exception, the party domi- 
 nant in any state is the one which has the most money. Occasionally the 
 impoverished opposition wins a victory, but it is temporary at best, and 
 usually but partial. In the southern states the Democratic party is in 
 permanent ascendency ; in the New England, Middle, and Pacific states, 
 and in a few of the Rocky Mountain states the Silver party is, or has 
 
 1 From article in Century, 1903, by ex-Governor L. F. C. Garvin of Rhode Island. 
 Reproduced by permission. 
 
ELECTIONS AND NOMINATIONS 433 
 
 been, dominant; but everywhere it is the richer party. This porten- 
 tous situation is due to the fact that money counts more and more 
 every year in determining the result of political campaigns. A strong 
 party organization, covering every section of a state, entails a large ex- 
 penditure. The money comes chiefly from candidates, the holders of 
 lucrative offices, and the beneficiaries of legislation, all of whom are to 
 be found in much greater numbers and stimulated by much higher hopes 
 in the permanently dominant party. 
 
 The distribution of the large sums derived from these several sources 
 is not made by the contributors themselves, but through one individual, 
 the boss. He determines the destination of the fund, in what directions 
 it shall be paid out, and from whom it shall be withheld. Reputable 
 candidates, aware that their contributions to the campaign are to be used 
 corruptly, do not desire any itemized account of expenditures. All they 
 ask for is the delivery of the goods. 
 
 Just how a state boss controls a legislature was once explained to a 
 company of gentlemen in my presence by Benjamin F. Thurston, Esq., of 
 Providence, Rhode Island. . . . The modus operandi when, for instance, 
 the boss wished to get rid of a troublesome state senator, was described 
 as follows : When, a few weeks before the campaign opened, a wirepuller 
 from the obnoxious senator's town called, according to custom, to see the 
 boss, a conversation of the following nature would ensue : 
 
 Boss. Can't you send up for senator a better man than Mr. A ? 
 
 Wirepuller. Oh, no. He 's very popular, and, besides, it is the cus- 
 tom of our town to give senators a second term. 
 
 Boss. It 's a nice day. 
 
 Wirepuller {after a long pause). How will it be about funds this 
 election ? 
 
 Boss. Oh, there will be no money this year. 
 
 Whereupon the visitor, taking his departure, indulges in a brown 
 study ; but about a week later he appears again, when the same topic of 
 conversation is revived. 
 
 Boss. So you are going to reelect Senator A, are you ? 
 
 Wirepuller (hesitatingly). I suppose so. It would be hard work to 
 beat him in caucus. 
 
 Boss. Can't B defeat him in caucus .? 
 
 Wirepuller. Perhaps so, but it would take a lot of money. 
 
 Boss. Oh, you can have all the money you want for that purpose. 
 
 From this typical conversation it may be understood how the manager 
 of the dominant party, by holding the purse strings, can easily keep a 
 majority of both branches of the legislature subservient to his will. In 
 the event of his failing to defeat an objectionable candidate at the pri- 
 mary meeting, he is ready to furnish money for use against him at 
 the polls, and in this way not infrequently to secure the services of 
 
434 AjNierican state government 
 
 his successful opponent. Every powerful boss has at his disposal, in 
 a pinch, some members of the legislature, who nominally belong to 
 the opposition party. 
 
 With a boss at the head of a state machine, acting through subbosses, 
 each of which is intimately acquainted either with a city or with an ex- 
 tensive rural community, it is easy to see how he can force a state legis- 
 lature to enact unpopular laws and to elect a United States senator who 
 is not only offensive to a majority of the entire electorate, but who is far 
 from being the choice of a majority of the members of his own party. 
 By the lavish but judicious outlay of the campaign fund, in packing cau- 
 cuses, hiring workers, corrupting active opponents, bringing out the vote, 
 and, when necessary, bribing the voters, it is manifest that the will of the 
 people finds but a small chance of gaining its ends through an ordinary 
 election. 
 
 Only in extraordinary times, when public sentiment is stirred to its 
 depths, when citizens, usually indifferent, devote time and thought and 
 some money in support of a popular movement, — only on such excep- 
 tional and infrequent occasions is the supremacy of the boss really en- 
 dangered. When, after a long interval of quiescence, such a period of 
 awakening occurs, it too often happens that the immediate grievance 
 felt by the public is a comparatively small one, and the remedy applied, 
 though for the time effectual, is only superficial. The temporary vigilance 
 soon passes ; that slow-moving giant, the public, goes to sleep again, 
 and the boss resumes undisputed sway. 
 
 The stronghold of the state boss is the legislature. When he selects 
 a candidate for governor or other elective executive officer, he finds it 
 necessary in most states to take into account the voters. The largest 
 constituency in the state is the most difficult to deceive and the most 
 costly to corrupt. Moreover, the people have something of a prejudice 
 in favor of a respectable figurehead as candidate for governor, and even 
 for mayor. They have been kno\yn, in so boss-ridden a state as Pennsyl- 
 vania, to stampede to the opposing candidate. But the bosses are not 
 greatly distressed at losing a governor, since the real power in a state, 
 the legislature, is rarely carried in both branches, by popular uprisings, 
 however extended. The boss of any state, if able to retain control of 
 either Senate or House of Representatives, frequently manages to carry 
 his pet measures through the other branch ; and, at the very worst, he 
 can hold radical reforms in abeyance until after another election, at which 
 he is quite sure to find, the energy of the public being exhausted, an easy 
 victory all along the line. 
 
 The distribution of campaign funds by the boss is supplemented by 
 his equally shrewd distribution of salaried offices. But even though civil- 
 service reform were fully estabhshed in any state, the boss, if well sup- 
 plied with the sinews of war, would find no difficulty in maintaining his 
 hold upon its policies. 
 
IX 
 CONSTITUTIONAL CONVENTIONS 
 
 THE NEW YORK CONSTITUTIONAL CONVENTION i 
 
 By Hon. J. H. Hamlin 
 
 Before adverting to matters accomplished by the convention, some- 
 thing as to its inception, organization, and general characteristics may 
 be desirable. The authority for its existence was embodied in the former 
 constitutional provision that in the year 1866, and in each twentieth year 
 thereafter, the question should be submitted to the electors of the state 
 to decide, Shall there be a convention to revise the constitution and 
 amend the same ? If the answer should be in the affirmative, the legisla- 
 ture was required to provide for the election of delegates. Pursuant to 
 this mandate the question was submitted to the electors in 1886 and 
 they decided with practical unanimity in favor of a convention. Partisan 
 considerations, however, controlled subsequent legislative action on the 
 matter, and no provision was made for the meeting of a convention until 
 1892, when an act providing for the election of delegates, to meet on 
 the second Tuesday of May, 1893, became a law. Political considera- 
 tions again intervened, and in 1893 the act of the preceding year was 
 substantially amended out of existence, and a new statute took its place. 
 The act of 1892 had very closely followed the provisions of the law 
 which had summoned into existence the convention of 1867 ; each of 
 them provided for 32 delegates, to be elected from the state at large, 
 with a proviso that no elector should vote for more than 16 of the 
 delegates, thus establishing minority representation. The result of this 
 method of election was highly satisfactory. It brought into the conven- 
 tion of 1867 men of commanding abUity, belonging to each of the two 
 great political parties. For political reasons, which ultimately recoiled 
 upon the party responsible for the change, this provision was annulled. 
 The act of 1893, under which the convention came into being, provided 
 for 175 delegates, of which 15 were elected from the state at large and 
 5 from each of the 32 senatorial districts. Accordingly, at the fall elec- 
 tion party machinery was put in motion, nominations were made in the 
 usual way, and delegates elected to the convention, which met at Albany 
 on the second Tuesday of May following. Politically the Republicans 
 
 IFrom Yale Law Journal^ June, 1895. 
 435 
 
436 AMERICAN STATE GOVERNMENT 
 
 were in the majority. Of the 175 members elected, 98 were at least 
 nominally Republicans and 77 Democrats ; very few, however, were pro- 
 fessional politicians. Political affiliations, indeed, played no great part in 
 determining the action of the convention ; in only a few instances were 
 amendments carried or defeated by a strict party vote. 
 
 Professionally three fourths of the delegates were lawyers. A large 
 number of them were liberally educated. Not a few had gained a wide 
 reputation at the bar. As a whole they were men of ability and high 
 standing in the communities where they resided, and they had a high 
 sense of the responsibilities and duties of their position. In the selection 
 of a presiding officer the convention was supremely fortunate. In the 
 person of Joseph H. Choate was found one whose attainments and 
 abilities reflected honor upon the convention and dignified its proceedings. 
 His delightful tact disarmed criticism, whatever his rulings ; and that un- 
 faltering courage in maintaining his convictions, which especially charac- 
 terized him, gained for him, even more than the charm of his eloquence, 
 the admiration of the convention. At the head of the judiciary committee 
 was Elihu Root, whose infinite capacity for labor, added to his great 
 abilities and acquirements as a lawyer, enabled him to impress himself 
 upon the work of the convention to an extent unapproached by any other 
 member of that body. 
 
 Early in its session the convention was called upon to assert and main- 
 tain its prerogatives. A writ of prohibition was issued out of the supreme 
 court upon the petition of one Herman F. Trapper, a sitting member, 
 whose seat was contested on the ground of gross frauds committed at 
 one or more of the election districts within the city of Buffalo, from which 
 he was returned. The writ assumed to restrain the convention from tak- 
 ing any action which should interfere with or abridge in any way his 
 rights and privileges as a member, and required it to desist from pro- 
 ceedings in the matter of deciding upon his qualifications and election. 
 The writ having been personally served upon each of the delegates, two 
 questions were fairly presented : first, as to the right of the convention 
 to pass upon the election and qualification of its own members ; second, 
 whether the convention was inferior to the supreme court. 
 
 Considering it to be of the first importance that a body chosen to 
 revise the organic law should be free from interference, whether by the 
 executive, legislative, or judicial branch of the government, the conven- 
 tion repudiated the action of the court and asserted its rights as an in- 
 dependent legislative assembly, with plenary powers within its sphere of 
 action, which it derived directly from the people. As a corollary to this 
 proposition, it maintained that the right to judge of the election and 
 qualification of its members was essential to its efficiency, and that inter- 
 ference from without, in this regard, would be destructive to its inde- 
 pendence and the proper performance of its powers. The convention 
 caused a copy of the report adopted by it to be transmitted to the 
 
CONSTITUTIONAL CONVENTIONS 
 
 437 
 
 supreme court, together with a respectful remonstrance against its enter- 
 taining jurisdiction in the matter. As nothing further was heard of the 
 proceeding, it is to be presumed that the court, on consideration, adopted 
 the views of the convention. 
 
 Having maintained its prerogatives, the convention proceeded to per- 
 form the work for which it had been summoned. The constitution of 
 1846 had for nearly half a century served as the great charter of the 
 state. At the time of its promulgation forebodings of the ills likely to 
 accrue to the body politic from its adoption were everywhere heard. It 
 was bitterly assailed as extreme in its democratic tendencies and as prac- 
 tically revolutionizing the policy of the state with its decentralization of 
 political power and its elective judiciary. But the event has not fulfilled 
 the dire predictions. It did, indeed, in the words of the address which 
 accompanied it, " place the happiness and prosperity of the people of the 
 state under God in their own hands"; but the people have seen to it 
 that no great detriment occurred to the state thereby. We have under 
 its sanction advanced with unprecedented rapidity in population, wealth, 
 and power, and, on the whole, the high character of our judiciary has 
 been well maintained. 
 
 The convention of 1894 was not inclined to radical measures. It 
 appreciated the excellence of the existing constitution, very many of 
 whose provisions had received judicial construction. In the main it was 
 known to be acceptable to the people of the state, and it was deemed to 
 be the part of prudence to modify the old constitution only so far as 
 changed conditions had rendered it desirable. But this conservative action 
 was not accepted without resistance by the reformers both within and 
 without the convention. At the time when the air was thick with social- 
 istic schemes for regenerating political life, it was not to be supposed 
 that the convention would escape the enthusiastic doctrinaire and the 
 professional reformer. They were present in force and brought their 
 amendments with them. Scarcely a provision of the old constitution 
 seemed satisfactory to every one ; even the preamble and Bill of Rights, 
 which were supposed to be fairly acceptable, were asserted to be radically 
 defective. Something over four hundred and fifty proposed amendments 
 of the most diversified character were submitted to the convention for 
 its consideration. Fortunately the delegates, as a whole, were a conserv- 
 ative body of men. They fully appreciated the fact that in the attempt 
 to reform abuses, the abuses of reformation were to be avoided. Out of 
 this mass of material only thirty-three amendments were presented to the 
 electors for adoption. 
 
438 AMERICAN STATE GOVERNMENT 
 
 THE MICHIGAN CONSTITUTIONAL CONVENTION ^ 
 By J. A. Fairlie 
 
 It was in April, 1906, that the people of Michigan voted that a con- 
 vention to revise the constitution should be held. The necessary act of 
 the legislature to provide for the election of delegates might easily have 
 been passed early in the session of 1907, and the delegates elected at 
 the April election of that year. But the act was not passed until towards 
 the end of the session, the delay being perhaps due to the hope of some 
 members of the legislature that they would be returned as delegates. A 
 ruling of the supreme court, however, declared members of the legislature 
 ineligible, under the provision of the existing constitution declaring them 
 ineligible for appointment to any office created by the legislature of 
 which they were members. 
 
 The act for the election of delegates provided for a body of 96 mem- 
 bers, 3 to be elected from each senatorial district In districts where the 
 direct primary had been adopted, primaries were to be held on August 13. 
 The election of delegates was set for September 17. The convention 
 was to meet on October 22. Delegates were to receive $10 per day 
 until January 31, but might sit beyond that date without pay. Other 
 provisions in regard to the organization and procedure of the convention 
 were added. Some of these, it has been urged, were beyond the authority 
 of the legislature to impose, — such as the provisions that the revised con- 
 stitution should be submitted to the electors as a whole, and that it should 
 be submitted at a special election in April, 1907. On the latter point the 
 supreme court has recently decided that the legislature did exceed its power. 
 
 Direct primaries for nominations were held in about half of the dis- 
 tricts. Both at these and at the election of delegates in September a very 
 light vote was cast, — the more surprising in view of the large vote in 
 April, 1906 (over three hundred thousand) on the question of calling the 
 convention. But in explanation of this light vote it may be said not only 
 that the election was set for a special date, but that it came at an unusual 
 time, the primaries in the middle of the summer. Another factor was 
 the absence of active campaigning on the part of most of the candidates, 
 the general consensus of opinion being that the usual political methods 
 were out of place for this purpose. 
 
 It has been said that the members of the convention constituted the 
 best and most representative assembly that has ever met in Michigan. 
 It is at least clear that among the delegates were to be found men repre- 
 senting all classes of the population and wide differences of opinion; 
 that most of them were men of intelligence and training, and a good 
 proportion were men of the first order of ability ; and that they worked 
 earnestly and seriously in the task before them. 
 
 1 From Michigan Law Review, 1908. 
 
CONSTITUTIONAL CONVENTIONS 
 
 439 
 
 Sixty delegates were recorded as lawyers, whereas in the convention 
 of 1850 a majority were farmers. Twenty were business men (including 
 several wealthy capitalists, some bankers, and 5 manufacturers), 7 were 
 farmers, 2 were publishers, 2 were professors in educational institutions, 
 and there was i clergyman and i carpenter. Forty-four members had 
 been students at the University of Michigan, and a number of others had 
 a college education at other institutions. 
 
 From a party classification the convention was overwhelmingly Repub- 
 lican, with only eight delegates elected as Democrats. But while on several 
 important questions the convention was very closely divided, the regular 
 party lines were not in evidence. To some extent the convention could 
 be separated into a radical and a conservative group ; but a middle group 
 held the balance of power, and the final result was at least acceptable to 
 all the members of the convention. 
 
 A good proportion of the delegates had previously served in the legis- 
 lature or in other public posts. On the other hand, a large proportion 
 had never before held public office, and among these were some of the 
 ablest and strongest members, whose presence emphasized the impor- 
 tance of the work to be done. 
 
 Some preliminary canvassing for officers took place, but no formal 
 caucus was held, and at the first session (October 22) John J. Carton, 
 twice Speaker of the Michigan House of Representatives, was unani- 
 mously elected president. After electing the other most important officers 
 a committee on permanent organization and order of business was ap- 
 pointed, which reported a plan of committees and employees, and was 
 also made use of during the convention as a central committee to con- 
 sider and report on important questions of convention procedure. 
 
 One of the first committees to be appointed was the committee on 
 rules, on whose report a series of rules was adopted, based mainly on 
 those of the Michigan House of Representatives, but modified in several 
 important features, so as to provide more ample opportunity for discus- 
 sion and deliberation. The regular procedure for proposals deserves 
 especially to be noted as follows : 
 
 1 . Introduction, first reading, and reference to a committee ; 
 
 2. Report of committee and placing in the general order; 
 
 3. Consideration in committee of the whole in order of reference ; 
 
 4. Report by committee of the whole, and reference to the committee 
 on arrangement and phraseology ; 
 
 5. Report of committee on arrangement and phraseology; 
 
 6. Second reading, vote on passage by roll call ; 
 
 7. Reference to committee on arrangement and phraseology ; 
 
 8. Report of the complete revision by the committee on arrangement 
 and phraseology ; 
 
 9. Consideration of the complete revision in committee of the whole, 
 by sections ; 
 
440 AMERICAN STATE GOVERNMENT 
 
 10. Report of the committee of the whole ; 
 
 11. Third reading and passage (on roll call) by articles and as a 
 whole. 
 
 Special attention may be called to the four different opportunities for 
 discussion and amendment of every part of the revision in the conven- 
 tion and to the double reference to the committee on arrangement and 
 phraseology. 
 
 Other rules that may be noted were those providing for the reading 
 and printing in full of all proposals, and reserving the power in a major- 
 ity of the convention to discharge any committee from the consideration 
 of any proposal. 
 
 Twenty-eight standing committees were appointed, each having from 
 5 to 15 members, giving 3 committee places to most members of the 
 convention. The largest committees, and the most important, were those 
 on the legislative department, the judiciary, cities and villages, public-ser- 
 vice corporations, finance and taxation, and submission and address to 
 the people, — each of 1 5 members. The committee on miscellaneous 
 provisions had 13 members ; the committees on executive department, 
 private corporations, education, and liquor traffic had each 1 1 members ; 
 and the committees on counties and townships had each 9 members. 
 
 Before appointing the committees the president invited the delegates 
 to indicate their preferences, and these were apparently followed as far 
 as possible. Among the chairmen of the more important committees 
 may be mentioned Henry M. Campbell, legislative department and per- 
 manent organization ; R. H. Fyfe, the judiciary ; Alfred Milnes, cities 
 and villages ; A. E. Sharpe, public-service corporations ; Roger I. Wykes, 
 finance and taxation ; Victor M. Gore, submission and address to the 
 people ; E. J. Adams, miscellaneous provisions and rules ; Delos Fall, 
 education ; and A. L. Moore, liquor traffic. Most of these were delegates 
 of large influence in the convention, but other members also played a 
 prominent part. 
 
 Much of the important work of the convention was accomplished in 
 the committees, and of this work detailed records are not available. For 
 more than two months the convention as a whole held only afternoon 
 sessions, leaving the mornings and evenings for the meetings of com- 
 mittees. At these meetings the many proposals (over four hundred were 
 introduced) were discussed more thoroughly and with greater freedom 
 than was possible in the larger assembly. These committee discussions 
 were supplemented by the even more informal discussions of groups of 
 delegates, who would gather in the intervals between more formal meet- 
 ings to talk over one problem and another. The committees also received 
 the petitions which were addressed to the convention, and all of the more 
 important committees held one or more public hearings for the discussion 
 of special questions by those not members of the convention. And the 
 result of the committee work, while in no case depriving the convention 
 
CONSTITUTIONAL CONVENTIONS 441 
 
 of its full control over any subject, was that on many matters the con- 
 clusions of the committees were accepted with little or no debate in the 
 convention. 
 
 On a few questions larger, but still informal, conferences of those 
 interested in a particular question were held. On one occasion a con- 
 ference committee was appointed, through the action of the convention, 
 in an attempt to reach a compromise agreement in regard to the 
 " initiative." This conference committee did not fully succeed, but it led 
 indirectly to the result finally adopted. 
 
 At the outset of the convention it was decided that a complete steno- 
 graphic report of the debates and proceedings should be made and 
 published. Owing to delay in the printing, the daily reports were not 
 available, as some expected, for following the current work of the con- 
 vention. But the postponement of the vote of the electors on the revised 
 constitution until November gives an opportunity to examine the complete 
 record and to trace the proceedings of the convention from its beginning 
 to the end. And, with all the attention given to the convention by the 
 newspapers, it must be said that a close study of the debates wUl be 
 necessary to give anything like an adequate comprehension of what was 
 said and done. 
 
 During the earlier weeks, while most attention was being given to 
 committee work, there was little talk and no long speeches. But after 
 the New Year, when the convention was holding two and three sessions 
 a day, and the important questions had been reported for action, the 
 record rapidly lengthened. Half a dozen subjects were made the occasion 
 for extended debate. The most prolonged was that on the initiative for 
 constitutional amendments, which continued for four days, and in which 
 more than fifty delegates took part, — doubtless the longest debate in 
 the history of Michigan. Other subjects which received special attention 
 were the questions of salaries, prohibition, woman suffrage, and the 
 modification of the fellow-servant rule. 
 
 It is notable, however, that most of the changes actually made in the 
 constitution were agreed to without long discussion ; and what seemed 
 to many the most important of all, the home-rule provisions for cities 
 and villages, were adopted in committee of the whole after but three 
 sessions, and with only brief speeches on the various sections, instead of 
 lengthy orations on the whole subject. Towards the end of the conven- 
 tion a rule was adopted limiting speeches in committee of the whole to 
 five minutes, and for the last few days the same rule was voted for the 
 convention; but this rule was not infrequently waived by unanimous 
 consent, and there was no effort to suppress the free discussion of any 
 question. 
 
 As a whole, the convention gave ample but not an excessive amount 
 of time to speech making, and the record of the debates will be consider- 
 ably shorter than that for the convention of 1867. 
 
442 
 
 AMERICAN STATE GOVERNMENT 
 
 A few words may be added as to the work of the committee on 
 arrangement and phraseology, which exercised a larger influence on the 
 language and arrangement of the constitution than has been usual in 
 state conventions. E\'ery section of the revised constitution, as agreed 
 to in committee of the whole, was referred to the committee on arrange- 
 ment and phraseology to recommend such modifications in the language 
 as seemed advisable, before the passage of the sections on second read- 
 ing. The committee made its recommendations freely, rewriting a good 
 number of sections and sometimes entirely reconstructing several sections ; 
 and it had the satisfaction of having every one of its recommendations 
 adopted by the convention. 
 
 After the various sections had passed second reading they were again 
 referred to this committee for arrangement in the different articles of the 
 complete revision. When this stage had been reached the convention ad- 
 journed for twelve days, which gave time for this work to be carefully 
 done, and also permitted the elimination of duplicate and conflicting 
 clauses and further changes in language to be considered and recom- 
 mended. As a result it is believed that the grouping of the articles and 
 the arrangement of sections in each article is more logical and will help 
 to a clearer understanding of the relations of the various provisions to 
 each other. And while the new constitution inevitably shows signs of the 
 many hands that shared in its construction, there is more uniformity and 
 less duplication and conflict of provisions than might well be expected in a 
 document which is the composite result of so many men of different minds. 
 
 The final week of the convention was given to the consideration of 
 the complete revision, and some further amendments were made in com- 
 mittee of the whole and on third reading. And as the outcome of the 
 thorough consideration and the spirit of concession and compromise on 
 the most controverted questions, on the final vote on the whole consti- 
 tution (on February 21) not a single negative vote was recorded, — a 
 result believed to be unprecedented in the history of constitutional con- 
 ventions, and one which should strongly commend the new constitution 
 to the people of Michigan. 
 
 It may be hoped that the convention procedure and methods of busi- 
 ness will have a permanent impress on the future conduct of legislative 
 business in this state. It is true that all the convention rules and prac- 
 tices cannot be fully applied to the larger volume of statutory measures 
 that must be considered at each session of the legislature. But the gen- 
 eral principles of publicity, thorough consideration, and careful attention 
 to forms of expression and arrangement can well be more closely followed 
 than they have been ; and, if this result is secured, it will be not the least 
 benefit received from this convention. 
 
CONSTITUTIONAL CONVENTIONS 
 
 443 
 
 GENERAL TENDENCIES IN STATE CONSTITUTIONS ^ 
 By James Quale Dealey 
 
 Throughout classical and medieval philosophizing runs a theory of a 
 paramount or fundamental law, permanent in kind, because fixed in 
 nature. This theory in its modern form, after voicing itself for a time in 
 the Cromwellian period, came to the front in the American Revolution 
 and found its proper expression in the written constitution. In our fed- 
 eral system, owing to the rigidity of the national Constitution, the devel- 
 opment of that document must be traced in the varying decisions of the 
 Supreme Court of the United States. In the commonwealth a more 
 flexible system of amendment prevails, and for that reason changes in 
 what the states consider to be their fundamental law may be traced more 
 easily in the constitutions themselves, subject as they are to frequent re- 
 vision and amendment. 
 
 In the Revolutionary period these constitutions were few in number, 
 small in size, and contained a mere framework of governmental organi- 
 zation. Since that time some two hundred state constitutions have been 
 made or revised. The forty-five now in force average in length over fifteen 
 thousand words, the longest, that of Louisiana, having about forty-five 
 thousand. In place of fundamentals only, they are filled with details, so 
 petty in many instances as hardly worthy even to be dignified as statutory. 
 
 This tendency to enlargement is not without justification. The proper 
 solution of problems arising from the complexity of modern interests de- 
 mands more wisdom and knowledge than is usually found in legislatures, 
 which are often incompetent and sometimes venal. The democratic 
 demand for legislation through convention is really a demand for legisla- 
 tors of a higher grade. To legislatures in consequence are left the mere 
 details of legislation with a minimum of discretion in the formulation of 
 statutes. Their ability in this sort of thing is well seen in the biennial 
 output by the states of nearly twenty thousand statutes, three fifths of 
 which are local, private, or special in kind. 
 
 Our present state constitutions represent different stages of develop- 
 ment and may be divided in four sets : (i) the six New England consti- 
 tutions ; (2) the ten made during the twenty-five years ending with 1865 ; 
 (3) the fourteen made from that date up to 1886 ; and (4) the fifteen 
 new and revised constitutions of the last twenty years. Three more will 
 likely be added to this number within the next twelve months, and an 
 average of one per year may be expected from that time on. The process 
 of amendment, through which about twenty additions are made annually 
 to our constitutions, tends to modernize aU of these. 
 
 A comparison of these sets shows that the starting point for the study 
 of state constitutions is the article on the lawmaking department. This 
 
 1 From American Political Science Review, February, 1907. 
 
444 
 
 AMERICAN STATE GOVERNMENT 
 
 powerful body in Revolutionary days completely overshadowed the other 
 two departments and was practically the repository of the sovereign 
 powers of the state. Though the theory of the separation of powers 
 was held, all really important powers were in fact intrusted to the legis- 
 lature. This is by no means the present condition. Not only have tlie 
 other two departments been built up and strengthened at the expense 
 of the assembly, but three other departments of government have devel- 
 oped into importance, and should be considered in any discussion of the 
 division of sovereign powers. If the government is that organization 
 through which all the sovereign powers of the state may be expressed, 
 then surely in modem times we should speak not merely of the three his- 
 toric departments of government, viz., the executive, the judicial, and the 
 legislative, but also of the differentiations from these, the administration, 
 the electorate, and that nameless agency which in every state has the legal 
 right to formulate the fundamental law, an agency which, for want of 
 a better name, may be called the legal sovereign. These six departments 
 unitedly may exercise every conceivable power included within the term 
 " sovereignty." 
 
 The general tendency in regard to these six departments of govern- 
 ment, as shown by our existing constitutions, will be indicated in order, 
 and then attention directed to the lengthy series of limitations placed on 
 the exercise of other powers not removed from legislative discretion. 
 
 I. Administration. Historically, administration is of course part of the 
 executive function, but in our Revolutionary period it was at first controlled, 
 and in part carried on, by the legislatures. This was done through com- 
 mittees, temporary and then permanent. The work performed by these 
 was gradually transferred to paid officials, who, as functions became 
 specialized, were organized, for the purpose of carrying on the work of 
 administration, into the numerous boards, commissions, and departments 
 of government. Most of our states are still in this stage of development. 
 Every new line of activity results in the formation of a special board or 
 department, the organization and powers of which are frequently defined 
 in the constitution. This also regularly provides for the election by popu- 
 lar vote of the heads of the chief administrative departments, such as the 
 secretaries of state and of the treasury, the comptroller or auditor, and 
 the superintendent of education. As these numerous boards and depart- 
 ments really perform the larger part of the governmental business, it is 
 surely advisable that the several articles and provisions of the constitution 
 be gathered together and placed under a separate heading, entitled De- 
 partments of Administration. Their functions also should be coordinated, 
 unified, and thoroughly supervised. The absence of such centralization 
 is perhaps the greatest weakness in local administration. Supervisory con- 
 trol over such bodies by legislative committees tends to become merely 
 nominal, with the inevitable consequences of inefficiency and lack of 
 economy. There is, however, a strong tendency to center such powers in 
 
CONSTITUTIONAL CONVENTIONS 445 
 
 the executive, making him the head of the administration as in the 
 national system. This is done by bestowing on him large powers in ap- 
 pointment and removal, authority to demand reports and to investigate 
 the management of departments. 
 
 II. The executive. Aside from control over administration, the chief 
 gain in power on the part of the executive is his veto over legislation. 
 In 1788 two states only had placed the veto power in their constitutions ; 
 at this time but two states withhold it. Thirty-one states adopt the 
 national fraction of two thirds of both Houses to override the veto ; the 
 other twelve prefer a majority or three fifths. Thirty states now allow 
 the governor to veto items of appropriation bills, and three of these also 
 allow him to veto part or parts of any bill. If adjournment intervenes 
 between the sending of a bill to the governor and its return approved or 
 vetoed, ten states allow the governor a period of from three to thirty days 
 to decide whether or not to approve such bills. Eighteen states allow him 
 to file objections with the Secretary of State, thereby defeating the bill. 
 The veto power, especially when strengthened by the power to veto items 
 and to approve or disapprove after adjournment, has aided greatly in 
 the enlargement of the importance of the executive and in the conserva- 
 tion of public interests. 
 
 The governor's term of office is four years in twenty-one states, two 
 years in the same number, three in New Jersey, and one year in Massa- 
 chusetts and Rhode Island. The office of lieutenant governor is still re- 
 tained in thirty-two of the states. He presides over the Senate in thirty 
 of these. In Massachusetts and in Rhode Island he is a member of the 
 council, or of the Senate, ex officio, but presides only in the absence of 
 the governor, who, by constitution, is presiding officer. The old-fashioned 
 executive council is still retained by three of the New England States, and a 
 modified form of it in North Carolina. Iowa, by statute, has an executive 
 council made up of the governor and the heads of three departments. 
 
 III. The judiciary department. The older constitutions disposed of 
 this department in few words. Discretionary power was conferred on 
 the legislature, and judges, appointed by governor or legislature, usually 
 held a life tenure. The newer constitutions completely reverse this 
 practice. The courts in the United States do not simply decide cases ; 
 they interpret finally the constitution, and to that extent are a political 
 factor. For this reason complex business conditions and the rise of cor- 
 porate interests necessitate much more attention to this department of 
 government. The constitution of Louisiana, for instance, devotes about 
 twelve thousand words to the courts of the state and of the city and parish 
 of New Orleans. The newer constitutions regularly outline the grades 
 of courts, define their powers, set the boundaries for judicial districts, and 
 regulate the number and tenure of the judiciary. Three of the origi- 
 nal states still retain a life tenure, but all others fix a term of years for 
 judges of the supreme court ; the term varies from two to twenty-one 
 
446 AMERICAN STATE GOVERNMENT 
 
 years. Twenty states favor the sLx-year term, eight and twelve years are 
 the terms next favored, three states have long terms, and Vermont a two- 
 year tenure. Six states only retain appointment through the governor, 
 aided by council or Senate. Four choose through the legislature and one 
 (Connecticut) nominates through the governor, and elects through the 
 assembly. The other states all elect their judiciary and show no tendency 
 in the other direction. Four of the New England States still allow the 
 governor or assembly to ask the supreme court for opinions on questions 
 of law, South Dakota and Florida allow the governor this privilege, but 
 all the other states with greater wisdom reject this provision. There is a 
 marked tendency in the constitutions to merge law and equity into a com- 
 mon procedure, to modify the jury, to define libel, and to safeguard the 
 exercises of eminent domain by quasi-public corporations. All these 
 tendencies unitedly show a strong determination to make the judicial 
 system responsible directly to the electorate. 
 
 IV. The 'constitutional convention. The modern theory of a funda- 
 mental law, and its embodiment in the written constitution, have necessi- 
 tated the development of a governmental agency for the express purpose 
 of formulating the fundamental law. Two forms of this agency are in 
 use among the states, — the legislature and the convention, (i) The 
 legislature in the performance of this office is not properly a legislature, 
 but a convention. This is shown by the fact that its recommendations are 
 not sent to the governor for his approval or veto, but to the electorate 
 for final decision. The older method of amendment was through the 
 action of two assemblies and large fractional votes by assembly and elec- 
 torate. At the present time action by one assembly is sufficient in twenty- 
 six states, eighteen still require two assemblies, and the remaining state 
 (New Hampshire) amends only in convention. All but Delaware use the 
 referendum for final decision. Seventeen of the constitutions still require 
 a two-thirds vote of both Houses on amendments ; seven, a three-fifths 
 vote ; in sixteen a majority is sufficient. Only two states require more 
 than a majority for referenda, Rhode Island (three fifths) and New 
 Hampshire (two thirds) ; the usual requirement, that of twenty-eight 
 states, is " a majority of those voting thereon," but a few make amend- 
 ment well-nigh impossible by requiring a majority of the electors or a 
 majority of those voting at a general election. 
 
 (2) Few seem to realize the importance of the constitutional conven- 
 tion in American state governments. It is the great agency through 
 which democracy finds expression. In its latest form, that of a body 
 made up of delegates elected from districts of equal population, it is one 
 of the greatest of our political inventions. Through it popular rights may 
 be secured in the constitution, legislative tyranny restrained, and power- 
 ful interests subordinated to the general welfare. Not that these objects 
 have as yet been attained, but the agency is here through which an en- 
 lightened public opinion can express itself. 
 
CONSTITUTIONAL CONVENTIONS 
 
 447 
 
 All but thirteen of the states expressly provide for the calling of a con- 
 vention. In twelve of the thirteen, conventions can be called under legis- 
 lative authority. In one state only (Rhode Island) is there doubt about 
 the matter. Its supreme court in 1883, when requested by the Senate 
 for an opinion, in its reply concluded that under the constitution a con- 
 vention could not be called. Judge Jameson, however, in his great work 
 on " Constitutional Conventions," in discussing this opinion reaches the 
 opposite conclusion. If the composition of the convention is mentioned 
 at all in the constitution, the usual provision is that it be made up of rep- 
 resentatives from districts of equal population. There are, however, a 
 few exceptions. Since the year 1890, under the older theory that the con- 
 vention is the repository of sovereign powers, five constitutions have been 
 promulgated by conventions without referendum. To check this possi- 
 bility, fourteen constitutions expressly require the referendum, and the 
 other states would likely do so by statute. 
 
 V. The electorate, if this body, instead of being referred to as the 
 " sovereign people," should be treated, from the legal standpoint at any 
 rate, as a governmental agency, clearness in discussion would be gained. 
 Under the constitutions this governmental agency has three sets of 
 powers: (i) the power of appointment to certain offices through elec- 
 tions ; (2) the power to assist in lawmaking through the referendum, and 
 to some extent through the initiative ; and (3) the power to assist in ju- 
 dicial decisions through service on jury. These powers are steadily increas- 
 ing through the agency of the convention. The chief officials of the state 
 and municipality, the lawmakers of all grades, and judges supreme and 
 inferior are now regularly elected by popular vote. The verdicts of juries 
 now are often made by a fraction of the whole instead of by unanimous 
 vote. The referendum is generally required for final decisions on funda- 
 mental law, and very largely on local and general statutes. The most 
 remarkable development of this power may be found in the constitution 
 of Oregon since its amendment in 1902. By this the power of initiative 
 and referendum is fully secured to the electorate, both in statutory and 
 constitutional provisions. These powers of the electorate are plainly speci- 
 fied in the constitutions and are clearly governmental in kind, as truly so 
 as any other of the agencies of the state. 
 
 The usual basis for membership in the electorate is that to be made citizens 
 of the United States they must be at least twenty-one years of age. Nine 
 states still allow aliens to vote who have declared their intentions to become 
 citizens, four states grant suffrage to women, eight states have a slight 
 educational qualification, six other states have an educational qualification 
 as one of several alternatives, and three of these introduce a property 
 qualification as an alternative, but otherwise this historic restriction sur- 
 vives only in Rhode Island, in the election of members of city councils. 
 
 VI. The legislature or general" assembly. The Revolutionary constitu- 
 tions differed widely in respect to the organization and membership of 
 
448 AMERICAN STATE GOVERNMENT 
 
 their legislatures. Very noticeable, however, is the present tendency to 
 approximate toward a common t\pe. In all the states the legislature is 
 bicameral. Thirty-eight states elect the members of the House biennially ; 
 senators have a four-year term in twenty-nine states ; and twenty-four pro- 
 vide for a system of class rotation in the Senate. A biennial session is 
 required in thirty-eight states, and thirty-one fix actually or practically a 
 time limit for legislative sessions : this in eighteen states is fixed at sixty 
 days. The membership of the state legislatures is unitedly about seven 
 thousand, but nearly two thousand of these are found ih the seven states 
 that have assemblies of over two hundred members. The size of the 
 membership in each House naturally varies with the population of the 
 state, but if the seven mentioned above be omitted, the general average 
 is a membership of about thirty-five in the Senate and ninety in the 
 House. The House membership is regularly from two to three times 
 that of the Senate. 
 
 In seventeen states the membership of both Houses is made up of 
 representatives from districts of equal population. In nineteen other states 
 there is a requirement that a locality, either county or town, be repre- 
 sented in one or both Houses. In these states, however, the requirement 
 modifies only slightly the principle of popular representation, and the 
 districts are practically of equal population. In other words, thirty-six 
 of the states make their legislative Houses popular in basis. The nine 
 other states depart from this principle by requiring a disproportionate 
 representation for their rural towns, or counties of small population. 
 The worst offenders in this respect are Delaware, Maryland, Vermont, 
 Connecticut, and Rhode Island. 
 
 Limitations on legislatures. Under the national Constitution the powers 
 not delegated to the federation nor prohibited to the states are reserved 
 to the states. This reserved power may be exercised in each state by its 
 legislature, unless the local constitution redelegates parts of this power 
 to the other departments of government, and places restrictions and pro- 
 hibitions on legislative use of the remainder. 
 
 One would think that since our legislators usually come from districts 
 of equal population they would, by constitution, be intrusted with large 
 discretionary powers in legislation. This, however, is far from being the 
 fact. There is a steadily increasing tendency to restrict in every possible 
 way the enormous powers of legislatures. In general the length of a 
 constitution indicates the amount of restriction placed on lawmaking. 
 Every provision in a bill of rights limits by so much legislative initiative. 
 The rapidly increasing powers of the executive and the electorate in ap- 
 pointment, administration, and lawmaking are all at the expense of the 
 assembly ; the growth in importance of the constitutional convention 
 subordinates proportionately its rival, the legislature. Every article in the 
 constitution that fixes the organization and powers of a department of 
 administration or division of government, or defines a policy in regard to 
 
CONSTITUTIONAL CONVENTIONS 449 
 
 important interests, is to that extent a restriction on legislative discretion. 
 Yet in the newer constitutions one may expect to find, as already indi- 
 cated, lengthy articles on the judicial and administrative departments, 
 and, moreover, much regulation of taxation, finance, local government, 
 education, elections and the suffrage, land, mines, corporate interests, 
 and labor. To these regulations should be added long lists of prohibi- 
 tions, such as those against special or local legislation, and numerous 
 regulations of procedure in respect to the handling of bills. Subtract all 
 these limitations on legislative powers from the totality, and the question 
 may then well arise whether it will ultimately prove worth while to retain 
 an expensive legislature to exercise its small residue of petty powers. 
 A convention meeting periodically, and well-supervised administrative de- 
 partments with ordinance powers, might perform all legislative functions 
 with entire satisfaction. 
 
 It seems plain that the really important lawmaking body at the present 
 time is the convention. Its members are of a higher grade and turn out 
 work distinctly superior to that of legislatures. These really are bodies 
 having chiefly ordinance powers. Whenever, through sudden changes in 
 conditions, a legislature unexpectedly develops large discretionary power 
 in statute making, the next convention in that state settles the principle 
 itself and thereby adds another limitation to legislative initiative. If this 
 tendency continues, the biennial session will become quadrennial, the 
 term be limited to forty or sixty days, and every inducement offered 
 our legislators to do as little and to adjourn as speedily as possible. On 
 the other hand, if our states can make improvements in the legislative 
 system and select a better grade of legislators, our lawmaking might con- 
 tinue to be intrusted to legislatures whose members, as the early consti- 
 tutions of Maryland and Vermont put it, should be persons " most wise, 
 sensible, and discreet," and " most noted for wisdom and virtue." 
 
 In conclusion, attention may well be called to the practical disappear- 
 ance from our constitutions of some old-time provisions. Among these 
 may be mentioned the annual election and the annual session, the gov- 
 ernor's council, and unequal representation of the people in lawmaking 
 bodies, the life tenure of judges, and the advisory capacity of the supreme 
 court. Religious restrictions on officeholding, and the property qualifi- 
 cation for suffrage, with very slight exceptions, have gone; the town 
 system of New England is dying in that section and does not exist out- 
 side of it. The real local units of administration now are (i) the rural 
 county with its numerous subdivisions, and (2) the incorporated city, 
 both of which are gaining power throughout the United States. 
 
 If general tendencies in the making of constitutions may be condensed 
 into a sentence, we may say that governmental powers are centering into 
 the electorate, which voices itself through the ballot and the convention. 
 
450 AMERICAN STATE GOVERNMENT 
 
 THE CONSTITUTION OF OKLAHOMA ^ 
 
 By Charles A. Beard 
 
 Mr. Bryce has commended to scholars the stxidy of our state constitu- 
 tions on account of their historic interest and their value for the science 
 of comparative politics. In them, he urges with good reason, one may 
 read the annals of legislative and political sentiment more easily and 
 more succinctly than in any similar series of laws in any other country." 
 It may be added that these fundamental laws are all the more instructive 
 to the student of practical politics because they contain, in a large meas- 
 ure, the definite rules of law which are steadily being devised to meet 
 concrete problems as social pressures from various directions bring them 
 within the sphere of legislation. In fact, it is highly probable that th° 
 political philosopher who considered them in the abstract would go far 
 astray ; because they mainly reflect the legal adjustments which have 
 accompanied the material development of our country and are well-nigh 
 meaningless to any one not acquainted with the course of our economic 
 evolution during the past century. From this point of view the constitution 
 of the recently admitted state of Oklahoma possesses a unique interest, for 
 its framers have searched with great assiduity among the fundamental 
 laws and statutes of all the other states for the latest inventions known to 
 American politics, and have worked them into a voluminous treatise on 
 public law, — a mosaic in which the glittering new designs of " advanced 
 democracy " appear side by side with patterns of ancient English make. 
 
 I. Structure of the Central Government 
 
 In the bold framework of this new government there is little that is' 
 novel or striking, and it would be a work of supererogation to describe 
 it in detail. Accordingly we consider only the newer devices which have 
 a special significance in showing the general tendencies in our constitu- 
 tional development. 
 
 In the midst of a movement, commended by the experience of many 
 states," toward an integration of the administrative system into a responsi- 
 ble hierarchy and the centralization of control in the hands of the governor, 
 
 1 From Political Science Quarterly, 1909. 2 American Commonwealth, Vol. I, p. 450. 
 
 8 It must be admitted, however, that some of the states are going in the direction of pop- 
 ular election. Governor Blanchard of Louisiana, in his message of May 14, 1906, said : "In 
 my inaugural address 1 recommended to this general assembly at its first session that action 
 be taken on the line of relegating to the people the filling by popular vote of offices under 
 the state government that were filled by appointment of the governor. Much then was done 
 in this direction. The judges of the supreme court, theretofore appointed by the governor, 
 were made elective. The register of the state land office and the commissioner of agricul- 
 ture and immigration, theretofore appointive, were made elective the same as other state 
 officers. So also vacancies occurring in the offices of district judge, district attorney, sheriff, 
 and clerk of court, which vacancies when occurring had heretofore been filled by appoint- 
 ment of the governor, are now filled by election of the people at special elections called for 
 the purpose." On the other hand, Governor Hughes of New 'i'ork, in his 1909 inaugural 
 address, inveighed against the irresponsibility engendered by the decentralized elective system. 
 
CONSTITUTIONAL CONVENTIONS 
 
 451 
 
 Oklahoma has gone almost as far as possible in the other direction. In 
 fact, faith in the check and balance system as a guaranty of efficiency 
 and justice in administration is expressly stated in the article ordering the 
 legislature to provide by law for the establishment and maintenance of 
 " an efficient system of checks and balances between the officers of the 
 executive department, and all commissioners and superintendents and 
 boards of control of state institutions, and all other officers entrusted 
 with the collection, receipt, custody or disbursement of the revenues or 
 moneys of the state whatsoever." In accordance with this scheme of 
 government, not only are the old executive officials — Secretary of State, 
 auditor, attorney-general, and treasurer — elected by popular vote, but 
 also the newer authorities — superintendent of public instruction, insur- 
 ance commissioner, state examiner of state and county accounts, com- 
 missioner of labor, mine inspector, and commissioner of charities. The 
 corporation commission, which in New York is appointed by the gov- 
 ernor by and with the advice of the Senate, is composed in Oklahoma of 
 three mernbers elected by the voters of the state for a term of six years, 
 one member going out biennially. Over this decentralized and inde- 
 pendent administrative system the governor has only general supervisory 
 power. He must, of course, see that the laws are executed, and he may 
 require information under oath from all the officers and commissioners 
 of the state on any subject relating to the discharge of their public func- 
 tions ; but he has no coercive authority over the chief administrative offi- 
 cers through the disciplinary power of appointment and removal. By way 
 of compensation, however, he is given a term of four years in which to 
 learn that art of control which is unknown to the formal legal methods.^ 
 
 All elective state officers, including the justices of the supreme court, 
 are liable to removal by the process of impeachment "for wilful neglect 
 of duty, corruption in office, habitual drunkenness, incompetency, or any 
 offense involving moral turpitude committed while in office." 
 
 In determining the number of members which the legislature shall 
 contain, constitution makers in the United States have apparently arrived 
 at no consistent principles. A study of twenty-one states having a popu- 
 lation of between one and three millions reveals an average of forty in 
 the Senate and one hundred fifteen in the House.^ Oklahoma some- 
 what approaches the average by having forty-four senators and one 
 hundred nine representatives, but when compared with the fifty-one 
 senators and one hundred fifty assemblymen in New York, with a 
 population of over seven millions, the number seems decidedly out of 
 proportion. Following the example set by a majority of the states, bien- 
 nial election of the members of the lower house is provided" and the 
 
 1 Goodnow, Politics and Administration, p. 173. 
 
 2 Dealey, Our State Constitutions, 1907, p. 43. 
 
 8 According to Professor Dealey, three states in 1905 had quadrennial elections for the 
 lower house ; Georgia, Massachusetts, New Jersey, New York, Rhode Island, and South 
 Carolina had annual meetings ; and all the other states held biennial elections. Ibid. p. 45. 
 
452 
 
 AMERICAN STATE GOVERNMENT 
 
 senatorial term is put at four years, one half retiring biennially. Biennial 
 sessions of the legislature are also provided ; but to induce the members 
 to confine their operations within a limit of sixty days it is ordered 
 that they shall receive $6 per day during that period and only $2 for 
 each day's attendance thereafter. Accordingly, unless patriotic devotion 
 to lawmaking or some other important considerations are brought to 
 bear, Oklahoma need not be expected to contribute more than her quota 
 to that vast mass of statutes which Judge Parker estimated at 25,000 
 pages a ^-ear.^ This precise limitation, however, may impose on the legis- 
 lators that " severe ner\'ous strain " under which it is said Indiana law- 
 makers labor to complete their necessary work within the' sixty-one days 
 prescribed by the constitution.'^ 
 
 Except for some important limitations on procedure which will be 
 considered below, the Oklahoma judicial system presents few features of 
 interest. The justices of the supreme court, however, are selected by a 
 rather novel process : the state is divided into five districts ; in each dis- 
 trict candidates are to be nominated at the primaries by the political 
 parties or by petition ; such candidates are voted for by the qualified 
 voters of the state at large, no elector voting for more than one candi- 
 date from each district ; and the candidates receiving the highest number 
 of votes in the state are, severally, the justices-elect of the particular dis- 
 tricts from which they are nominated. In order to expedite judicial busi- 
 ness, Oklahoma has not resorted to the drastic device of refusing to pay 
 the justices of the supreme court until they have finally decided the cases 
 before them, — a method now in force in several states,' — but it simply 
 orders them to render a written opinion in each case within six months 
 after it has been submitted. This may have the salutary effect of abbre- 
 viating the absurdly long opinions which our courts are prone to inflict 
 on the suffering public ; at all events it will prove an interesting 
 experiment.* 
 
 II. Special Restrictions on the Authorities of the State 
 
 The crowning restriction on the delegated authorities of the state is 
 the express retention of the lawmaking power in the hands of the voters 
 through a system of initiative and referendum. This newer contrivance 
 of institutional democracy has already found its way into the constitutions 
 of many states ; and Oklahoma has followed the example of Oregon so 
 closely that almost the exact words of the amendment adopted in that 
 state in 1902 have been accepted: 
 
 1 Proceedings of the American Political Science Association^ 1907, P- 105. 
 
 2 Ibid. p. 103. 8 Dealey, op. cit. p. 41. 
 
 ^ It is estimated that there are in America alone over six thousand volumes of decisions, 
 and that from one to two hundred volumes are being added annually {Proceedings of the 
 American Political Science Association, 1907, p. 83). Certainly it is time to restrict the 
 loquacity of our law speakers. 
 
CONSTITUTIONAL CONVENTIONS 453 
 
 The legislative authority of the state shall be vested in a legislature, consist- 
 ing of a Senate and a House of Representatives ; but the people reserve to 
 themselves the power to propose laws and amendments to the constitution and 
 to enact and reject the same at the polls independent of the legislature, and 
 also reserve power at their own option to approve or reject at the polls any act 
 of the legislature. 
 
 Even the Oregon requirement as to the title of the bills has been adopted, 
 and the style of all measures is to be, " Be it enacted by the people of 
 the state of Oklahoma"; and further to demonstrate the majesty of the 
 people, the veto power of the governor shall not extend to measures 
 voted on by them. 
 
 An ordinary legislative measure may be initiated by 8 per cent of 
 the legal voters and ratified by a simple majority of those voting in the 
 election at which the particular proposition is submitted. The initiation 
 of a constitutional amendment requires 15 per cent of the voters, 
 and goes into force when approved by "a majority of the votes cast 
 thereon." Thus it may happen that a small proportion of the total num- 
 ber of voters may effect a fundamental revolution in the political system 
 of the state. This provision is doubtless based on practical experience — 
 on the popular indifference manifested in many states to proposals referred 
 for approval. If a majority of all the legal voters were required, it might 
 mean the defeat of almost every measure submitted.^ To prevent the 
 constant use of the initiative by persistent minorities as a means of agita- 
 tion, it is provided that no measure rejected by popular vote may again 
 be proposed within three years thereafter by less than 25 per cent of 
 the legal voters. 
 
 All acts of the legislature, except laws necessary for the immediate 
 preservation of the public peace, health, or safety, must be referred to 
 the people on a petition of 5 per cent of the legal voters, or on the 
 order of the legislature itself. The referendum petition must be filed 
 with the Secretary of State not more than ninety days after the adjourn- 
 ment of the session of the legislature which passed the act in question ; 
 and a majority of those voting on the measure is sufficient for approval 
 or rejection. The referendum may be demanded on one or more items 
 or sections or parts as well as on the whole bill ; and to give the people 
 time to prepare petitions, no act (except one carrying into effect the 
 initiative and referendum provisions of the constitution or a general 
 appropriation bill) can go into effect until ninety days have elapsed 
 after adjournment, unless in case of emergency. The existence of an 
 
 1 On an amendment submitted to the voters of Kansas in 1906 only 60,000 votes were 
 cast out of a total of 300,000 polled by the candidates for governor. In the same year an 
 amendment to the constitution of Indiana was voted on by only one twelfth of the voters 
 who went to the polls. In the same year in Louisiana several important amendments were 
 adopted by a vote of one sixth of the electorate. (J. W. Gamer, in Proceedings of the Amer- 
 ican Political Science Association, 1907, p. 171.) See, however, the large vote polled on ref- 
 erenda in Oregon. (Biennial Report of the Secretary of State, 1907, p. 68a.) 
 
454 
 
 AMERICAN STATE GOVERNMENT 
 
 emergency is determined by a two-thirds vote of all the members elected 
 to each House, the go\ernor concurring. When executive disapproval is 
 incurred, declarations of emergency must have a vote of three fourths of 
 the members of each House. As a result, probably, of the experience of 
 South Dakota,^ emergency acts are expressly limited to such measures as 
 are immediately necessary for the preservation of public health, peace, or 
 safety ; and they may not include the granting of franchises or licenses 
 to corporations or individuals to extend for more than one year, nor pro- 
 visions for the purchase or sale of real estate, nor the renting or incum- 
 brance of real property for more than one year. 
 
 Special and local legislation is one of those thorny problems that 
 apparently can neither be solved nor be let alone.^ In this matter Okla- 
 homa has borrowed from her sister commonwealth of Arkansas the 
 check of publicity. No special or local law can be considered by the 
 legislature until notice of the intended introduction of the proposed bill, 
 stating in substance the contents thereof, is first printed for four con- 
 secutive weeks in some weekly newspaper published or having general 
 circulation in the city or county affected by the bill. This requirement 
 seems to insure adequate publicity, and it will probably prevent that 
 surreptitious publication which, as Professor Dealey points out, may very 
 well defeat the operation of an otherwise excellent plan. This general 
 restriction is further supplemented by a long list of particular subjects 
 on which special legislation is forbidden except as otherwise provided. 
 
 To secure a wholesome separation of politics from private economy, 
 it is ordered that a member of the legislature who has a personal or 
 private interest in any measure or bill proposed or pending before the 
 legislature must disclose the fact to the House of which he is a member 
 and must not vote thereon. Furthermore, no member, during the term 
 for which he is elected or within two years after its expiration, shall be 
 interested directly or indirectly in any contract with the state, or with a 
 county or subdivision thereof, authorized by any law passed during his 
 time of service. For the species of corruption which this provision aims 
 to prevent, the penalty is expulsion ; and expulsion for this cause renders 
 the member forever ineligible for election to either House. 
 
 The rule, now approved by the experience of several states, that the 
 general appropriation bill shall contain nothing but appropriations for 
 the expenses of the executive, legislative, and judicial departments of 
 the state and for interest on the public debt,^ is adopted. Moreover, no 
 revenue bill can be passed during the last five days of the session. From 
 among the variety of expedients designed to Hmit the taxing power of 
 the legislature,* Oklahoma has selected a maximum rate of thirty-one 
 and one-half mUls on the dollar and the assessment of all property taxable 
 
 1 State ex rel. Lavin, et al. vs. Bacon (igoi), 14 S. D. 394. 2 Dealey, op. cit. pp. 51-54. 
 
 8 Reinsch, American Legislatures and Legislative Methods, p. 189. 
 
 4 Agger, The Budget in the American Commonwealths (Columbia Studies), p. 35. 
 
CONSTITUTIONAL CONVENTIONS 455 
 
 ad valorem on the basis of a fair cash value. Provision is made that the 
 state may select its objects of taxation and levy its revenues independent 
 of the counties, cities, or other municipal subdivisions ; but this separation 
 of sources of revenue, which is clearly the tendency in the most advanced 
 commonwealths, is not made obligatory upon the legislature. Lest that 
 inherent power which abides in the legislature should, not be deemed 
 sufficient warrant for any radical schemes of taxation that the future may 
 bring forth, it is expressly stipulated that the legislature shall have author- 
 ity to levy license, franchise, gross revenue, excise and income taxes, 
 collateral and direct inheritance, legacy and succession taxes, graduated 
 income taxes, graduated collateral and direct inheritance taxes, graduated 
 legacy and succession taxes, stamp, registration, production, or other 
 specific taxes. The work of equalization is intrusted to a state board 
 composed of the governor, auditor, Secretary of State, attorney-general, 
 state inspector and examiner, and the president of the board of agriculture. 
 Two very significant limitations on the authorities of the state are 
 embodied in the clauses relating to habeas corpus and injunctions. Defy- 
 ing what seem to be " the plain teachings of history," that summary and 
 drastic powers must occasionally be wielded by some officer of the state, 
 Oklahoma has firmly declared that " the privilege of the writ of habeas 
 corpus shall never be suspended by the authorities of this state." This 
 subordination of military to civil authority in the matter of the great 
 prerogative writ is accompanied by a positive limitation on the power of 
 the judiciary in the granting of injunctions. The legislature, the consti- 
 tution declares, shall pass laws defining contempts and regulating pro- 
 ceedings and punishments in cases of contempt ; but every person 
 accused of violating or disobeying an injunction out of the presence or 
 hearing of the court is to be entitled to trial by jury to determine his 
 guilt or innocence, and in no case shall penalty or punishment be imposed 
 for contempt until the accused has had an opportunity to be heard. 
 
 III. Municipal and Local Government 
 
 In the attempt to secure for towns and cities a large degree of " home 
 rule," Oklahoma has adopted the system which has been instituted in 
 Missouri, California, Colorado, Washington, and Minnesota, namely, that 
 of allowing certain municipalities to draft their own charters without legis- 
 lative interference. Any city in Oklahoma containing a population of 
 more than two thousand inhabitants may place the framing of its charter 
 in the hands of a board of freeholders elected by the qualified voters of 
 the place ; and the document drafted by this municipal convention, when 
 ratified by popular vote and approved by the governor, becomes the 
 organic law of the city. Amendments to the charter may be made by the 
 processes of initiative and referendum described in the next paragraph, 
 but these also require the approval of the governor. The municipal 
 
456 AMERICAN STATE GOVERNMENT 
 
 charter is, of course, subject to the constitution and laws of the state ; and 
 the courts, when called upon to adjust conflicts over state and municipal 
 functions, \vill find numerous precedents for their guidance in the experi- 
 ences of other states where this mode of charter enactment is in force.^ 
 
 Not only do the voters of the municipality control their own charter- 
 making, they retain supervisory powers over their agents by means of 
 the initiative and referendum. Petitions initiating municipal measures or 
 requiring referenda must be signed by 25 per cent of the number 
 of persons who voted at the election just preceding. If the petition 
 demands the enactment of an ordinance or a legal act other than the 
 grant, extension, or renewal of a franchise, it is presented to the munici- 
 pal council, and, if approved there, becomes law without further reference 
 to the voters. If it is rejected by the council, it must be referred to the 
 \oters, and will go into effect if approved by the majority of those who 
 \ote thereon. 
 
 This popular supervision is developed to the highest degree in the 
 matter of franchises. No municipal corporation can grant, extend, or 
 renew a franchise without submitting the measure to the people, and the 
 proposed measure must receive the approval of a majority of the quali- 
 fied voters residing within the corporate limits. Furthermore, the definite 
 term of twenty-five years is fixed for all such grants, renewals, or exten- 
 sions, and every municipal corporation in the state is given the right to 
 undertake any business or enterprise which may be engaged in by any 
 person, firm, or corporation by virtue of a franchise from the city. No 
 exclusive franchises can be granted, and the power to regulate the use 
 and enjoyment of franchises, as well as the charges made for public ser- 
 vices, is expressly retained. 
 
 In the sections relating to local government, the point of special 
 interest is the extension of the principle of the initiative and referendum 
 to the county and its subdivisions, as regards all local ordinances. 
 
 IV. Provisions relating to Corporations and Labor 
 
 The spirit of fierce opposition to monopolies and that jealousy of large 
 business enterprises which have filled the statute books of western states 
 with drastic measures, appear in almost every article of the Oklahoma 
 constitution. In the Bill of Rights, perpetuities and monopolies are declared 
 to be contrary to the genius of a free government, and corporations are 
 excluded from several of the privileges and immunities secured to natural 
 persons. Remembering, doubtless, that many men, eminent for their 
 administrative capacities, are prone to forget business cares in the pres- 
 ence of investigating committees, the framers of Oklahoma's fundamental 
 law have provided for unrestricted searches into the actual transactions 
 of corporations by explicitly stating that the records, books, and files of 
 
 1 Goodnow, City Government in the United States, p. 93. 
 
CONSTITUTIONAL CONVENTIONS 
 
 457 
 
 all corporations shall be at all times subject to the full visitorial and 
 inquisitorial powers of the state, notwithstanding the rights secured to 
 persons and to citizens. And to refresh the memory of witnesses, it is 
 ordered that no person having knowledge of facts tending to establish 
 the guilt of any other person or corporation charged with an offense 
 against the laws of the state shall be excused from presenting it on the 
 ground that it might incriminate himself ; but immunity from prosecution 
 and punishment is guaranteed to persons so testifying. Lest the legis- 
 lature should perchance overlook the matter, it is expressly ordered to 
 enact laws defining unlawful combinations, monopolies, trusts, and acts 
 and agreements in restraint of trade, and to provide for the punishment 
 of offenders. 
 
 The realization of these policies is, however, by no means left to the 
 uncontrolled devices of the legislature. The constitution creates a cor- 
 poration commission, composed of three members elected for terms of 
 six years by popular vote, one of them retiring every two years. In all 
 matters pertaining to the public visitation, regulation, or control of cor- 
 porations and within its jurisdiction, the commission has the powers and 
 authority of a court of record, and may administer oaths and compel the 
 attendance of witnesses and the production of papers. It may punish for 
 contempt any person guilty of disorderly or disrespectful conduct in its 
 presence, and may enforce compliance with its lawful orders and require- 
 ments by imposing fines and penalties provided by law — always after 
 affording due process to the party or parties affected. 
 
 The powers of the commission leave nothing to be added. It is charged 
 with the duty of supervising, regulating, and controlling all transportation 
 and transmission companies doing business within the state, in all matters 
 relating to the performance of their public duties and their charges there- 
 for. It is also to correct abuses and to prevent unjust discrimination and 
 extortion by such companies ; and, in order to fulfill its general purposes, 
 it is instructed to prescribe and enforce, against the various concerns 
 coming within its supervision, reasonable and just rates, charges, classifi- 
 cations, rules, regulations, and requirements. 
 
 Ample provision is made for collection of the information concerning 
 the business of the companies which may be required in the discharge of 
 the obligations imposed upon the commission. It is empowered, at all 
 times, to inspect the books and papers of transportation and transmission 
 companies doing business within the state, and, furthermore, to require 
 such companies from time to time to make special reports under oath 
 concerning their affairs. The commission is instructed to keep itself fully 
 informed on the physical condition of all the railroads of the state and the 
 manner in which they are operated, with reference to the security and 
 accommodation of the public ; and it must take measures " to prevent 
 unjust or unreasonable discrimination and extortion in favor of or against 
 any person, locality, community, connecting line, or kind of traffic, in the 
 
458 AMERICAN STATE GOVERNMENT 
 
 matter of car service, train or boat schedule, efficiency of transportation 
 or transmission." In the exercise of this enormous supervisory power, 
 the commission is controlled by elaborate provisions requinng due process 
 in the matter of notice, hearing, and appeal to the courts. 
 
 Not content with prescribing general regulations for the commission 
 and leaving the rest to the legislature, the framers of the constitution 
 have embodied in the fundamental law many express provisions controll- 
 ing matters of detail. In the first place, they have ordered that the whole 
 ph3sical structure of the railway and public-service business shall be laid 
 bare — one is tempted to say, naked — before the public. The commis- 
 sion must ascertain and keep as a matter of public record the amount of 
 money expended in the construction and equipment per mile of every 
 railroad and public-service corporation in Oklahoma, the amount of money 
 expended to secure the right of way, and, furthermore, the amount of 
 money it would require to reconstruct the road bed, track, depots, and 
 transportation facilities, and to replace all the physical properties belong- 
 ing to the railroad or public-service corporation. The commission must 
 also ascertain the outstanding bonds, debentures, and indebtedness, and 
 the amount thereof ; when issued and the rate of interest ; when due ; 
 for what purposes issued ; how used ; to whom issued ; to whom sold, 
 and the price in cash, property, or labor (if any) received therefor ; what 
 became of the proceeds ; by whom the indebtedness is held, and the 
 amount purporting to be due thereon ; the floating indebtedness of the 
 company, to whom due, and the residence of the creditor ; the credits due 
 on it ; the property on hand ; and, finally, the judicial or other sales of 
 the said road, its property, or franchises, and the amounts purporting to be 
 paid therefor. After having thoroughly analyzed the physical structure of 
 the system, the commission must ascertain the salaries and wages paid 
 by the railroads and public-service corporations. 
 
 The present status of railway and public-service corporations is thus 
 to be carefully and minutely described, and then the future is to be safe- 
 guarded. It is expressly ordered that no corporation shall issue stock 
 except for money, labor done, or property actually received to the amount 
 of its par value ; all fictitious issues of stock or indebtedness are void ; 
 stock and bonded indebtedness shall not be increased except in accord- 
 ance with the general law and with the consent of the persons holding 
 the larger amount in value of the stock duly obtained at a meeting held 
 after thirty days' notice. Each railway and public-service corporation 
 doing business in the state must, in addition, maintain a public office 
 where its business shall be transacted, stock transfers recorded, with the 
 amount paid and the names of the owners, and books kept showing 
 the assets and liabilities of the concern. The directors of such corpora- 
 tions must meet annually after due notice and make reports as required 
 by law. 
 
 After ordering physical valuation and prescribing these rules designed 
 
CONSTITUTIONAL CONVENTIONS 459 
 
 «n,^r,r;?* stock-watering, the Oklahoma constitution makers lay down 
 ^.r^Zyf^'u'''' regulations concerning the management and conduct 
 ^L^ZT """^'"ef • In the first place, there are to be no mergers in 
 tne state, except under specific conditions. No public-service corporation 
 can consolidate its stock, property, or franchises with, or lease or purchase 
 the works or franchises of, or in any other way control any other public- 
 service corporation owning or having under its control a competing or 
 parallel hne, except by legislative enactment upon recommendation of the 
 corporation commission. Furthermore, the legislature is expressly for- 
 bidden to authorize such consolidations with corporations organized under 
 the laws of other states or the United States and holding or controlling 
 competing lines in Oklahoma. No railway, transportation, or transmis- 
 sion corporation can under any circumstances consolidate with concerns 
 organized out of the state. 
 
 Turning to corporations in general, the constitution provides that no 
 corporation chartered or licensed to do business in the state shall hold, 
 own, or control in any manner whatever the stock of any competitive cor- 
 poration or corporations engaged in the same kind of business in or out 
 of the state, except such stock as may be pledged in good faith to secure 
 bona fide indebtedness, and in such cases the said stock must be sold 
 within twelve months. In fact, the competitive system is to be maintained 
 in every field of business ; for, until otherwise provided by law, no person, 
 firm, association, or corporation engaged in the production, manufacture, 
 or sale of any commodity of general use may attempt to destroy compe- 
 tition or create a monopoly by discriminating between persons, associa- 
 tions, corporations, different sections, communities, or cities of the state, 
 or by selling lower under some circumstances than others, due allow- 
 ance Being made for cost of transportation and difference in grade and 
 quantity. 
 
 Though competition is to be upheld in the railway business, its full 
 consequences are not to be accepted. A flat rate of two cents a mile for 
 carrying passengers is imposed until otherwise provided by law, subject 
 to the reservation that the corporation commission may exempt any rail- 
 road from the operation of this restriction if it can be shown that a just 
 compensation cannot be earned under it. Moreover, cooperation among 
 competing concerns, subject to state supervision, is made mandatory. 
 Every railroad, oil-pipe, car, express, telephone, or telegraph corporation 
 or association authorized to do a transportation or transmission business 
 within the state shall have the right to intersect, connect with, or cross 
 any other road or line. All railroad, car, or express companies must 
 receive and transport one another's cars, tonnage, or passengers, without 
 delay or discrimination, under the supervision of the corporation com- 
 mission. All telephone and telegraph lines, operated for hire, shall receive 
 and transmit one another's messages and make physical connections 
 under the rules prescribed by law. 
 
46o AMERICAN STATE GOVERNMENT 
 
 And finally there is inserted a clause whose requirements will cause 
 readjustments as far away as New Jersey. No corporation, foreign or 
 domestic, can do business within the state without first filing with the 
 corporation commission a list of its stockholders, officers, and directors, 
 with the residence and post-office address of each and the amount of 
 stock held by each. And every foreign corporation, before being licensed 
 to do business, must designate an agent residing in the state on whom 
 summons or other legal notice may be served. No foreign insurance 
 company may receive a license or do business within the state until it 
 has complied with the laws of the state and has deposited such collateral 
 or indemnity for the protection of its patrons within the commonwealth 
 as may be prescribed by the legislature. It must also agree to pay the 
 taxes and fees imposed by law. 
 
 The farmers are to be specially protected from the real-estate corpora- 
 tions by a unique process. No corporation may be created or licensed in 
 the state for the purpose of dealing in real estate other than that located 
 in incorporated towns and cities or additions thereto. Corporations in 
 general are not precluded from acquiring titles by the foreclosure of 
 mortgages, but they must dispose of property so acquired within a period 
 of seven years. Public-service corporations may not hold any land except 
 such as is indispensable to the transaction of their necessary business. 
 
 The familiar claims of labor are met in the spirit of the motto inscribed 
 upon the seal of the state, — Labor omnia vincit. Eight hours shall con- 
 stitute a day's work in all cases of employment by and on behalf of the 
 state or any county or municipality, — a provision which extends the 
 eight-hour rule to workmen employed by contractors in the service of 
 the government, state and local. The contracting of convict labor is 
 prohibited. The use of the injunction, as remarked above, is carefully 
 restricted ; and the common-law doctrine of the fellow servant, so far as 
 it affects the liability of the master for injuries to his servant resulting 
 from acts or omissions of any other servant or servants of the common 
 master, is abrogated as to every employee of every railroad company, 
 street railway company, interurban railway company, and of every person, 
 firm, or corporation engaged in mining in the state. The defense of con- 
 tributory negligence or of assumption of risk shall, in all cases whatso- 
 ever, be a question of fact for the jury. The right of action to recover 
 damages for injuries resulting in death shall never be abrogated, and the 
 amount recoverable shall never be subjected to statutory limitations. No 
 rights under the constitution can ever be waived by contract, express or 
 implied. 
 
 _ The constitution creates a department of labor, headed by a commis- 
 sioner elected for a term of four years by popular vote. It also commands 
 the legislature to establish a board of arbitration and conciliation in the 
 department of labor, with the commissioner at its head. The general con- 
 ditions of industrial arbitration are left to the discretion of the legislature. 
 
CONSTITUTIONAL CONVENTIONS 46 1 
 
 except that every license or charter granted to a mining or public-service 
 corporation, foreign or domestic, shall contain a stipulation to the effect that 
 such corporation will submit to arbitration differences with its employees 
 in reference to labor. 
 
 The legislature is ordered to pass laws to protect the health and safety 
 of employees in factories, in mines, and on railroads. Two clauses are 
 added on the subject of child and woman labor. The employment of 
 children in any occupation injurious to health and morals, or especially 
 hazardous to life or limb, is prohibited. Boys under sixteen and women 
 and girls are prevented from working underground in the mines. Follow- 
 ing the well-established precedents of other states, it is provided that 
 eight hours shall constitute a day's work in all mines within the state. 
 
 V. Miscellaneous 
 
 Lest the Oklahoma lawmakers should not prove amenable to the 
 growing pressure of public opinion, which has so recently placed elaborate 
 primary laws upon the statute books of Wisconsin, Illinois, Kansas, New 
 Jersey, and many other states, the constitution makes it mandatory upon 
 the legislature to enact laws creating a compulsory primary system, which 
 shall provide for the nomination of all candidates in all elections for state, 
 district, county, and municipal officers, including United States senators, 
 and which shall apply to all political parties, reserving of course to the 
 people the right to name nonpartisan candidates by petition. The com- 
 pletion of the plan for popular election is left to the legislature. All 
 corporatioris organized or doing business within the state are forbidden 
 to influence elections or official duty by the contribution of money or 
 anything of value. 
 
 Both in the Bill of Rights and in the body of the constitution there are 
 several departures from the traditional Anglo-Saxon legal doctrines ; but 
 most if not all find precedents in the newer constitutions of other states 
 and thereby fall in with certain general tendencies in American legal 
 evolution. Prosecution for felony and misdemeanor by information as 
 well as by indictment is expressly sanctioned ; but no one may be prose- 
 cuted by information for felony without having first had a preliminary 
 hearing before an examining magistrate or having waived such hearing. 
 When the grand jury is employed, the concurrence of nine men out of 
 twelve is sufficient for the return of a true bill. In county courts and 
 courts not of record the petty jury shall consist of six men ; and in civil 
 cases and criminal cases involving crimes less than felonies three fourths 
 of the whole number of jurors may render a verdict. The provision 
 relating to criminal libel is the same as that contained in the constitutions 
 of the more conservative states, for example in that of New York. In 
 all criminal prosecutions for libel, the truth of the matter alleged to be 
 libelous may be given in evidence to the jury, and if it appear to the jury 
 
462 AMERICAN STATE GOVERNMENT 
 
 that the matter charged as libelous is true or was written with good 
 motives and for justifiable ends, the party shall be acquitted. The rule of 
 law that a person is not required to give evidence tending to incriminate 
 himself when testifying against any other person or corporation is abro- 
 gated, and the " immunity bath '• is substituted, as has been pointed out 
 above. Likewise the common-law doctrine of the fellow servant has been 
 set aside in certain cases mentioned above, and the defense of contribu- 
 tory negligence is declared to be a question of fact to be submitted to 
 the jury. 
 
 The Oklahoma constitution does not show quite that "wholesome 
 anxiety to protect and safeguard private property in every way " which 
 Mr. Bryce observed as one of the excellent features in American consti- 
 tutional development. It is true that it contains express provision that 
 "' private property shall not be taken or damaged for public use without 
 just compensation"; but at the same time it declares that " the right of 
 the state to engage in any occupation or business for public purposes 
 shall not be denied or prohibited, except that the state shall not engage 
 in agriculture for any other than educational and scientific purposes and 
 for the support of its penal, charitable, and educational institutions," — 
 an exception clearly bucolic in its origin. Also every municipal corpora- 
 tion, as has been indicated, may engage in any business or enterprise 
 which might be carried on privately under a franchise from the city. In 
 case the state should engage in business on such a large scale as to de- 
 stroy the enterprises of private persons, would claims for compensation 
 lie against it, or would the Oklahoma courts extend to the body politic 
 that principle laid down by the English courts with reference to private 
 corporations, namely that damages are not recoverable for injury done 
 in the ordinary course of competition ? ^ 
 
 There are also evidences of that philanthropy and humanitarianism 
 which Mr. Bryce declared to be mingled in our state politics with folly 
 and jobbery '" like threads of gold and silver woven across the warp of 
 dirty sacking." Educational and reformatory institutions, those for the 
 benefit of the insane, blind, deaf and mute, and such other institutions as 
 " the public good may require," are to be established and supported by 
 law. The creation of a system of free schools and compulsory education 
 in the common branches is made obligatory on the legislature. The 
 manufacture and sale of liquor as a beverage are forbidden. There is a 
 generous exemption of homesteads from forced sales, except for the pay- 
 ment of purchase money, improvement charges, taxes, and mortgages. 
 The legal rate of interest in the absence of contract is fixed at 6 per 
 cent, and the maximum rate is placed at 10 per cent. Laws are to be 
 enacted, as pointed out above, for the protection of the health of 
 employees in mines, factories, and on railways, and for the protection 
 of women and children in industries. It is not only the state that assumes 
 
 1 Webb, Industrial Democracy (edition of 1902), p. xxix. 
 
CONSTITUTIONAL CONVENTIONS 463 
 
 humanitarian obligations ; the several counties shall provide, under the 
 general prescriptions of the law, " for those inhabitants who, by reason 
 of age, infirmity, or misfortune, have claims upon the S3mipathy and aid 
 of the county.'' 
 
 Two or three clauses set us to wondering whether Oklahoma imagines 
 that Calhoun is still alive. The first section of the first article declares 
 that " the state of Oklahoma is an inseparable part of the Federal 
 Union," as if some Buchanan in the President's chair at Washington 
 might forget it in case of an incipient movement for secession.^ In the 
 same section it is expressly acknowledged that the " Constitution of the 
 United States is the supreme law of the land " ; but treaties and laws 
 made in accordance with that Constitution are omitted. Perhaps because 
 Congress is seen to be dilatory in enforcing the suffrage section of the 
 Fourteenth Amendment (the Republican platform of 1904 notwithstand- 
 ing), Oklahoma includes in her constitution the Fifteenth Amendment. 
 The article regulating corporations is expressly restricted in its application 
 so as not to conflict with any of the provisions of the Constitution of the 
 United States ; the obligation of contract shall not be impaired, and due 
 process must run everywhere throughout the state. Finally, in reserving 
 to the people the right to alter this constitution in the future. Section i 
 of the Bill of Rights warns them that such changes as may be made 
 must not be repugnant to the fundamental law of the United States. 
 
 In its provisions for amendment, the Oklahoma constitution seems to 
 comply in general with the canons recently laid down by Professor Gar- 
 ner in a careful comparative study.^ It provides in the first place for the 
 two ordinary methods of change, — for revision in state convention and 
 for specific alterations by legislative reference to popular vote ; and it 
 adds a third expedient, — amendment by popular vote on an initiative peti- 
 tion. A constitutional convention may be called by the legislature only 
 with popular approval on a referendum vote, but the question whether 
 a convention shall be called must be submitted to the people at least 
 once in twenty years. Furthermore, all revisions made in convention 
 must be ratified by popular vote. The legislature may also initiate an 
 amendment by a simple majority vote of both Houses ; the proposition 
 then goes to the people at a general election, or, if two thirds of each 
 House concur, at a special election, where a majority of those voting is 
 
 1 Similar provisions, however, are contained in a large number of state constitutions. See 
 the interesting debate in the New York Convention of 1894 over the proposal to insert a 
 section acknowledging the supremacy of the Constitution, laws, and treaties of the United 
 States. Revised Record of the Constitutional Convention of 1894, Vol. I, pp. 1037 et seq. 
 
 2 Political Science Review, Vol. I, No. 2, pp. 213-247. Oklahoma has fallen into what 
 Professor Gamer regards as the error of not making exact provisions for the composition 
 and procedure of future constitutional conventions. Its brief mention should be compared 
 with the elaborate details laid down in Article XIV, Section 2, of the New York constitu- 
 tion. However, with the initiative and referendum and easy legislative reference there will 
 probably be no early need for a convention in Oklahoma. In fact, the constitution seems to 
 anticipate about everything that may happen within a reasonable time. 
 
464 AMERICAN STATE (rOVERNMENT 
 
 sufficient to ratif)-. Amendments may also be initiated by 15 per cent 
 of the legal voters, and, when ratified by a majority of the people voting 
 thereon, they become a part of the fundamental law of the state. 
 
 This remarkable political document has been rather severely criticized 
 in many quarters on the ground that it is a radical departure from Ameri- 
 can principles and practice. One New York newspaper, desiring to cast 
 reflections upon Great Britain for adopting an old-age pension system, 
 declared that " the mother of parliaments " had sunk to the level of this 
 new western state. The Oklahoma constitution, however, has not sur- 
 prised any one who has been following the tendencies of American state 
 legislation for the last three decades ; it is by no means " a leap in the 
 dark " or " a shooting of Niagara." The American people are not given 
 to sailing the ship of state by the stars or to deducing rules of law from 
 abstract notions ; and every important clause of the Oklahoma constitu- 
 tion has been tried out in the experience of one or more of the older 
 commonwealths. The initiative and referendum came from Oregon and 
 find warrant in the laws of several other states;^ direct nomination is 
 fast working a revolution in the American party system after a genera- 
 tion of tentative experiments built upon earlier voluntary methods ; " the 
 departures from old legal practices, even in such important matters as 
 the injunction, find many precedents ; the provisions regarding corpora- 
 tions are gathered from the constitutions and statutes of states as far 
 apart as New York and Texas ; and the labor provisions are not new to 
 students of social economy. 
 
 1 Political Science Quarterly^ Vol. XXIII (December, 1908), pp. 577 et seq. 
 
 2 Merriam, Primary Elections (1908). 
 
BIBLIOGRAPHICAL NOTE 
 
 By William L. Bailey 
 
 State publication and bibliography are in a much less developed condition 
 than that of the national government. It is only, however, quite recently that 
 the enormous activity of the Government Printing Office has been rendered 
 entirely useful. Doubtless it is true that a large proportion of state publications 
 are not of general interest outside of, or, indeed, within the state ; but it has so 
 often been pointed out that as a result of our federal system, one state desiring 
 to experiment in legislation or administration may profit by the experiences of 
 other states in the same matter, that from the merely practical point of view 
 more extensive publication and bibliography of state documents would be de- 
 sirable. This localism has probably been of some effect in making so large a 
 mass of the state publications consist of perfunctory or sheerly administrative 
 reports. There is, however, in these a quite surprising wealth of material valu- 
 able to not only political science but to the economist, sociologist, and natural 
 scientist as well. In fact, one is sometimes led to think that there might even be 
 curtailment along the line of publication by the state of documents wholly of an 
 unpolitical nature. There is a wide range of governmental activities of the state 
 governments whose official records are not yet published, and are thus inacces- 
 sible to outside interest. State publications are being rendered more available 
 since 1895 by the reinvigoration of the various state libraries through the or- 
 ganization of the National Association of State Libraries, in affiliation with the 
 American Library Association. This is associated with the general reawaken- 
 ing of interest in state governments, and the desire for increased uniformity in 
 state action. 
 
 A provisional list of the official publications of the several states from their or- 
 ganization has been published under the editorial direction of Mr. R. R. Bowker, 
 from the office of the Publishers' Weekly, New York, 1908, under the title 
 " State Publications." It has appeared in four parts : Part I, on the New Eng- 
 land States, appearing in 1899; Part II, for the North Central States, 1902; 
 Part III, the Western States and Territories, 1905 ; and Part IV, in 1908, for 
 the Southern States. This was the outcome of an earlier list of state publi- 
 cations, in the Atnerican Catalogue, 1884-1890, and continued in the volume 
 of 1 890-1 895. When " State Publications " appeared the bibliography of state 
 documents was almost nil. Mr. Bowker's volumes serve simply as a check list, 
 and as such are more useful to the librarian and bibliophile than to the student 
 or inquirer. They have not been supplemented since publication, nor has the 
 gap to date been bridged by any other single published index or check list. 
 Since January, 1910, however, there has been published by the Library of 
 Congress a monthly list of state publications. The materials appearing in 
 the interval can only be traced in the scarcely satisfactory catalogues of the 
 various state libraries. 
 
 465 
 
466 AMERICAN STATE GOVERNMENT 
 
 A number of bibliographies have also been compiled, covering the publica- 
 tions of the several states in special fields. The most notable contribution in 
 this field is Miss Hasse's monumental " Index to Economic Material in Docu- 
 ments of the States of the United States" (1907). But Miss Hasse omitted 
 constitutions, laws, legislative journals, and court reports. Various departments 
 and offices of the national government have also undertaken the indexing, and 
 even in some cases the digesting, of the contents of state publications along 
 specific lines. The activity of the Bureau of Labor has been greatest along this 
 line. In 1S92 there appeared as the third special report of that office an ana- 
 lytical abstract and index of the labor bureau reports of each state down to that 
 date. This has been brought down to date in editions of 1896, 1902, being in 
 1904 supplemented by digests of all decisions of the courts relating thereto. 
 Lists of publications of the several states relative to health boards, hospitals, 
 and the defective classes are to be found in the catalogue of the Library of the 
 Surgeon-General's Office, initiated by Dr. J. S. Billings. 
 
 There is no such source of information as the much derided Congressional 
 Record furnishes for the study of the national legislature. The legislative 
 journals of the various states are chiefly useful for analytical study of legis- 
 latures, containing as they do the barest account of the formal proceedings. 
 In some cases there are appended to the journals copies of the messages of 
 the governors. The debates of the state legislatures are in no case officially 
 published, and the newspaper reports are both partial and partisan. Committee 
 proceedings are published only in the case of very important investigating 
 committees, such as the Armstrong Insurance Investigating Committee of 
 New York. 
 
 The state constitutions have been quite thoroughly covered. The most recent 
 and complete collection of state constitutions is found in F. N. Thorpe, " Fed- 
 eral and State Constitutions," 7 vols. (Washington, 1909, Government Print- 
 ing Office). This has a valuable bibliography of constitutions prefixed. Another 
 collection is that of B. P. Poore, "Charters and Constitutions," 2 vols., 1877, 
 containing the texts of most of the charters and constitutions, from 1600 to 
 1878. The constitutions of the states as existing in 1894 are found in the 
 "New York Constitutional Convention Manual," 2 vols., 1894. A digest of 
 excerpts of the various constitutions was prepared by the Michigan Legis- 
 lative Reference Bureau in 1907, for the use of the constitutional convention 
 of that year, and constitutes a valuable source of knowledge of the exact con- 
 stitutional provisions of the states upon a series of given topics. A comparative 
 digest of state constitutions is furnished by F. J. Stimson, " Federal and State 
 Constitutions" (Boston, 1908), as also for the date 1887 in the same authors, 
 "American Statute Law," Vol. I, pp. 1-U4. A brief historical statement of 
 the main tendencies in the development of state constitutions down to 1887 is 
 found in H. Hitchcock, "American State Constitutions." Constitutions of in- 
 dividual states are usually prefixed to their volumes of statutes, as also con- 
 tained in their registers or manuals, and in the most of the states are separately 
 published for distribution. 
 
 A valuable bibliography of state constitutions is prefixed to Thorpe's edition 
 of the constitutions. It indicates the fact that only in a very limited number 
 of cases have the debates of the constitutional conventions been published. The 
 journals, however, furnish valuable material for a comparative study of con- 
 stitution-making, past and present. In few of the debates is there material that 
 
BIBLIOGRAPHICAL NOTE 467 
 
 rises above localism and partisanship, but in the proceedings of the New York 
 convention of 1894, the Michigan convention of 1907, and a few others there 
 are contained valuable records of experiences with political organization and 
 institutions. 
 
 Of legal treatises upon the constitutional nature of the American state, 
 Cooley's " Constitutional Limitations " still remains the best account, though 
 rendered slightly less useful by recent developments. 
 
 The regular messages of the governors are in only a small number of cases 
 of real value. They usually contain merely very brief summaries of the con- 
 tents of the reports of departments and institutions. The recent suggestion of 
 Governor Hadley, of Missouri, to dispense with the traditional message from 
 the governor and in lieu thereof have the various officers of the administration 
 acquaint the legislature of the progress and needs of their work is interesting 
 in this connection. The regular messages are chiefly useful as a genuine reflex 
 of the weakness of the American state governor unless he be a strong personality. 
 The art of control of the administrative organization of our states to which the 
 governor is forced under our disintegrated systems is the real index to his 
 position. It has been made the object of careful study by Dr. Harnett in his 
 " Indirect Administration of Wisconsin." But in the states where forceful and 
 statesmanUke governors have been a real power — La FoUette in Wisconsin, 
 Hughes in New York, Russell in Massachusetts, Folk in Missouri, to mention 
 only a few — the messages are frequently real contributions to the science of 
 government. The special messages and vetoes are more frequently indicative 
 of personality and of real impress upon the governmental process. In many 
 cases, too, they throw, when analyzed, considerable light upon legislative methods 
 and conditions. 
 
 The messages of the governors — regular, special, and vetoes — have been 
 digested by the New York State Library since 1901, in its annual Digest of 
 Governors' Messages. The local state press prints the regular messages in ex- 
 tenso. They are also frequently found in the legislative journals. The edition of 
 the New York governors (" Messages from the Governors," 1 1 vols, to 1906, 
 edited by Charles Z. Lincoln) contains footnotes indicating in each case the out- 
 come in legislation of the recommendations of the various governors, and their 
 vetoes. In a few cases only have the papers of the governors relating to par- 
 dons, appointments, and the like been published. The messages and papers of 
 many of the New York governors have been so published, and B. F. Sham- 
 baugh has edited an edition for the governors of Iowa to 1902 (7 vols., 1903). 
 The executive acts of the governors are frequently reported by the secretaries 
 of state in their regular reports. Pennsylvania pubUshes separately the veto 
 messages of the governors. 
 
 The reports of the administrative heads and departments are too frequently 
 merely statistical, or administrative in the narrowest sense. The organization 
 of the state executive and the functions of the various officers differ sufficiently 
 to make the task of indicating what in general they severally contain somewhat 
 difficult. The reports of the secretaries of state contain generally the official 
 canvass of state elections ; frequently a directory of state and local officers (in some 
 cases going back to the organization of the. state), indicating salaries ; less seldom 
 a list of the governors' vetoes, and of municipal incorporations ; where they act as 
 state auditors, the usual financial reports are found. The contents of the reports 
 of the other offices are sufficiently indicated by the name of the office, their 
 
468 AMERICAN STATE GOVERNMENT 
 
 functions in the various states being fairly uniform. The reports of the attorney- 
 generals frequently contain valuable statements of the legal relations of state 
 officers and the scope of their powers. 
 
 Directories of the state and, also, the local governments are furnished by 
 the long list of manuals, registers, and blue books published by the states. 
 These are of varying contents and value. They contain primarily gazetteer 
 information, biographies of legislators and state and local officers, and thus 
 supply the data for a study of representation in state legislators, reelections in 
 the various offices, and salaries. Veiy frequently, also, they contain the official 
 canvass of elections made by the Secretary of State ; and the party platforms. 
 They impliedly convey that necessary body of statistical and general knowledge 
 of the state which will be of most use to the legislator or state official in 
 discharging the duties of his office. The rules of the legislative bodies, the lists 
 of committees and information of this sort are frequently published in a small 
 manual for pocket use by the legislators. 
 
 Defective publicity in relation to state legislators through the lack of such a 
 document as the Congressional Record has brought into existence in at least 
 one state, namely, Illinois, the Legislative Voters' League. The bulletins of this 
 organizadon are keen, critical accounts of conditions and methods in legislatures 
 which are valid for other states than the one in which they originate. 
 
 In the field of comparative state legislation much has been done by the 
 activities and publications of the various legislative reference libraries. Their 
 publications have been chiefly along the line of comparative studies of consti- 
 tutional provisions and legislation on topics which had appeared as problems 
 locally. The various bulletins of the Wisconsin Library are illustrative of 
 this class. The New York State Library Bulletins of Legislation (1891 to date) 
 are the most valuable of such guides to comparative legislation by the states. 
 These appear annually, and are a complete topical digest of all such legislation. 
 The brief digests of the laws are supplemented by " Reviews of Legislation," 
 in the same volumes, written by experts each in his special line. 
 
 The annual presidential addresses of the American Bar Association contain 
 a more or less complete review of important additions to the body of state statute 
 law. Committees of the American and the various State Bar Associations are 
 from time to time detailed to investigate specific phases of legislation with a 
 need to greater uniformity or to action within a given state. Only in a limited 
 number of cases, however, have the reports of these committees been printed 
 in full, but summarized results of their findings, frequently of much value, can 
 be found in the regular volumes of proceedings. 
 
 Jones's " Index to Legal Periodicals " (2 vols, to 1899) serves as an index to 
 not only the proceedings of the bar associations, but also to the several law 
 journals, which frequently contain articles on specific phases of legislation or 
 on the courts. 
 
 F. J. Stimson's "American Statute Law" (2 vols., 1887). is a comparative 
 digest of the then existing body of state legislation, but has not been brought 
 down to date. 
 
 Various departments of the national government — the Agricultural Depart- 
 ment, the Bureau of Labor, the Commissioner of Education and the Public Roads 
 Office — have published summaries of the legislation of the states on special fields. 
 Indexes to such publications are found in the bulletins of public documents 
 issued by the Superintendent of Documents. 
 
BIBLIOGRAPHICAL NOTE 469 
 
 For secondary sources the volumes of the American State Series take first 
 rank as studies of both the law and the practice of every main aspect of state 
 government. They are the product of the newer viewpoint in the study of 
 governments which does not fail to realize the divergence of the actual from 
 the legal, or the importance of bearing in mind the economic and social 
 environment of political institutions. These volumes cover not only the state 
 governments but also the national and local. They consist of " The American 
 Constitutional System," by W. W. Willoughby ; " City Government in the 
 United States," by F. J. Goodnow ; " Party Organization and Machinery," 
 by Jesse Macy; "The American Executive and Executive Methods," by 
 J. H. Finley; "American Legislatures and Legislative Methods," by Paul S. 
 Reinsch; "Local Government in Counties, Townships, and Villages," by 
 J. A. Fairlie; and "The American Judiciary," by S. E. Baldwin. 
 
 " The American Commonwealth," by James Bryce (new and revised edition, 
 1910), pp. 41 1-584, still remains the best of general accounts of state govern- 
 ment. Less valuable summary accounts are contained in R. L. Ashley, " The 
 American Federal State " (New York, 1902), chaps, xviii and xix ; A. B. Hart, 
 "Actual Government" (1903); J. Fiske, "Civil Government in the United 
 States" (1 89 1). 
 
 Several studies of individual states, with historical introductions, are to be 
 found in the many editions of school textbooks on civics which have appeared. 
 These often furnish a convenient and reliable source of reference, but are based 
 quite exclusively on constitutions. The American Commonwealth Series is 
 illustrative of this class of material. There is a partial list of such texts appended 
 to Fairlie's " Local Government." The Columbia University Studies on the cen- 
 tralizing movement in several of the states and on certain specific phases are 
 of monographic completeness. 
 
 On several administrative problems of the state governments the depart- 
 ments or offices of the national government concerned make valuable reports. 
 The activities of the Commissioner of Education, the office of Public Roads, 
 and the United States Bureau of Labor have already been mentioned. The 
 United States Civil Service Commission has since 1898 chronicled the progress 
 in the states and local governments of civil service reform. The Fifteenth 
 Report (1 897-1 898) contains a historical statement and bibliography. 
 
 On other phases relating to charities and corrections such organizations as 
 the National Conference of Charities and Corrections, the various state con- 
 ferences, and the National Prison Association issue reports containing material 
 which records state legislation and administrative action. So for the highway 
 problem, the many organizations and conferences, such as the International 
 Good Roads Congress, the National Road Parliament, National Good Roads 
 Convention, National League for Good Roads and state conventions ; for edu- 
 cation, the National Educational Association, Department of Superintendence ; 
 for Civil Service Reform, the National Civil Service Reform League(i874to date). 
 The trade associations and organizations, such as the American Live Stock As- 
 sociation, American Pharmaceutical Association, and the like, have active com- 
 mittees on legislation, whose reports to their respective bodies are frequently 
 useful for tracing out legislative projects along certain lines. Governmental 
 action must always be understood as not springing full-blown from the head 
 of the sovereign state, but as simply the last stage of a process whose origins 
 are in the many organized interests of economic and social life. 
 
470 
 
 AMERICAN STATE GOVERNMENT 
 
 The reports of the proceedings of the various interstate departmental officers' 
 associations contain valuable comparative information as to departmental prob- 
 lems and methods. The Journal of Proceedings of the International Associa- 
 tion of Factory Inspectors of America has been published since 1900. The 
 National Association of Railway Commissioners, whose membership includes 
 state and territorial railroad commissioners and members of the United States 
 Interstate Commerce Commission, has published its proceedings since 1889. 
 The first conference of the chief school officers of the several states and terri- 
 tories with the United States Bureau of Education was heldin Washington, D.C., 
 February, 1908. Various organizations interested in taxation meet and publish 
 their proceedings, for example, the Bulletin of the International Tax Association 
 (Columbus, Ohio, 1907); the Addresses and Proceedings of the Annual Confer- 
 ences of the International Association on State and Local Taxation; the Pro- 
 ceedings of the National Conference on Taxation, igoi to date. The Highway 
 Engineers and Commissioners meet in conventions, as indicated above, and the 
 discussions of comparative methods and progress are published. 
 
INDEX 
 
 Adams, H. C, 318-325 
 
 Adams, T. S., 293-301 
 
 Administration. See Commission 
 
 Alabama, prohibition in, 344 
 
 Alger, G. W., 129-139 
 
 Allen, Philip L., 364 
 
 Antisaloon League, 355-356 
 
 Appeal, failure of, 150-157; Lummus 
 
 on failure of, 150-157 
 ■Apportionment, legislative, in New 
 
 York, 120-126; in Connecticut, 127- 
 
 129 
 Arkansas, prohibition in, 348 
 Australian ballot. See Elections 
 
 Baldwin, Judge S. E., 116-120 
 
 Ballot, Australian, 364-372 ; the short, 
 
 372-383 
 Beard, C. A., 450 
 "Blue" laws, 26 
 Bogart, Ernest L., 56 
 Boss, the state, 432-433 
 Bourne, Senator, 84-108 
 Bradford, G., on the governor, 17-19 
 Bribery laws. Folk on, 428-434 
 Bryce, James, 61-62 
 
 California, prohibition in, 352 
 
 Carpenter, Judge, 140-150 
 
 Childs, R. S., 372-383 
 
 Claims against the state, 168-172 
 
 Colorado, prohibition in, 351 
 
 Commissions, 222-239 i causes of, 223 ; 
 classification and distribution of, 224 ; 
 duties of, 224-231 ; future of, 238-239 ; 
 Public Service Commissions of New 
 York, 240-252 ; Railway Commission 
 of Wisconsin, 253-262 ; relation to 
 governor and legislature, 231-233; 
 relation to courts, 233-236 ; relation 
 to local governments, 236-238 
 
 Connecticut, legislative apportionment 
 in, 127-129; prohibition in, 352 
 
 Conservation, of forests by the states, 
 284-285; in New York state, 271- 
 284 ; of natural resources as state 
 property, 265-270 ; opinion of Maine 
 
 Supreme Court on, 265-270 ; Hud- 
 son County Water Company vs. Mc- 
 Carter, 262-265 
 
 Constabulary, the Pennsylvania, 217- 
 221 
 
 Constitutional conventions, 435-464; 
 in Michigan, 1907, 438-442 ; in New 
 York, 1894, 435-437 ; in Oklahoma, 
 450 
 
 Constitutions of states, general tenden- 
 cies in, 441-449 
 
 Corrupt-practices act of Oregon, 103- 
 106 
 
 Courts, and legislatures, 55-56 ; of last 
 resort, 140-150 ; failure of the appeal 
 system, 1 50-1 57 ; the appeal in crim- 
 inal cases, 192-198; juvenile, 199- 
 207 ; relation to commissions, 233- 
 236 
 
 Criminal law, W. H. Taft on, 173-181 ; 
 J. W. Garner on, 181-199; delays in 
 securing a jury, 186-187; weakness 
 of jury system in, 189-192; the ap- 
 peal system in, 192-198 ; parole law 
 of Illinois, 207-217; the juvenile 
 court, 199-207 ; state police, 217-221 
 
 Curtis, G. W., 328-331 
 
 Dealey, J. Q., 443-449 
 Delaware, prohibition in, 347 
 "Dispensary,"- in South Carolina, 347 
 
 Education, and local patriotism, 328- 
 331 ; government of state universi- 
 ties, 331-336; higher, and working- 
 men, 338-339 
 
 Elections, Australian ballot in, 364- 
 372; short ballot in, 372-383; sena- 
 torial, 404-414 
 
 Enforcement of law, 26-40 
 
 Executive. See Governor 
 
 Fairlie, J. A., 301-318, 438 
 
 Finance, procedure on, in legislatures, 
 56-61 ; separation of state and local 
 revenues, 293-301; state supervision, 
 301-310; railway taxation, 310 
 
 471 
 
47^ 
 
 AMERICAN STATE GOVERNMENT 
 
 Fleischmann, S., 16S-172 
 
 Florida, prohibition in, 347 
 
 Folk, J. W., as governor, 10-14 ; on the 
 
 saloon and the law, 338-342 
 Forestry. See Conservation 
 
 Gamer, J. W., on criminal law, 181-199 
 
 Garvin, Governor, 432 
 
 Georgia, prohibition in, 343-344 
 
 Governor, the, W. E. Russell on the 
 power of, i-io; weakness of, 17-19; 
 Folk as, 10-14, 26-27 ; executive usur- 
 pation by, 14-16; Hughes as, 14-16, 
 17; and legislatures, 17-19; G. Brad- 
 ford on, 17-19; pardoning power 
 of, 19-25 ; enforcement of law by, 
 26-27; law enforcement in Kentucky 
 by, 28-40 ; relation to commissions, 
 
 Hamlin, J. H., 435 
 Haynes, G. H., 404-414 
 Henderson, Judge, 19-25 
 Holmes, Justice, 262-265 
 Hughes, as governor, 14-16, 17; on 
 conservation in New York, 271-284 
 
 Idaho, prohibition in, 351 
 
 Iglehart, F. C, 342, 357 
 
 Illinois, Legislative Voters' League of, 
 74; legislature of, 74-79; parole law 
 of, 207-217; prohibition in, 350 
 
 Indiana, legislature of, 44-46 ; prohibi- 
 tion in, 349 
 
 Initiative and referendum, in Oregon, 
 88-93; in general, 108-116 
 
 Insurance, state supervision of, 286-292 
 
 Iowa, prohibition in, 350 
 
 Judiciary, politics and, 158-167. See 
 
 Courts 
 Jury. See Criminal law 
 Juvenile court, 199-207 
 
 Kansas, prohibition in, 348-349 
 Kentucky, law enforcement in, 28-40; 
 prohibition in, 345 
 
 La Follette, Governor R. M., message 
 on lobbying, 81-84; on railway regu- 
 lation, 252-262 ; on railway taxation, 
 310-318; on state treasury, 325-327 ; 
 on nominations by direct vote, 383- 
 394 ; on majority nominations, 394- 
 398 
 
 Law, the, and industrial inequality, 
 129-139 
 
 Legislature, the, S. P. Orth on, 41-56; 
 qualifications of members of, 42-48 ; 
 product of, 49-52 ; restrictions on, 
 55-56 ; and courts, 55-56 ; financial 
 procedure in, 56-61 ; Bryce on, 61- 
 62; organization of, in Illinois, 74-79; 
 and governors, 17-19; methods and 
 conditions of, 74-79 ; reference de- 
 partment of, 63-74 (its purpose, 63- 
 67 ; scope and methods, 67-73 ! 
 sources of material, 73-74) ; extended 
 sphere of action of, n6-i2o; mes- 
 sages to, seeYo\k, Hughes, La Fol- 
 lette, McLean, Russell; Legislative 
 Voters' League of Illinois, 74; appor- 
 tionment in New York, 120-126; 
 apportionment in Connecticut, 127- 
 129; commissions and, 231-233; dead- 
 locks in senatorial elections, 421-428 
 
 Lobby, the, W. E. Russell on, 79-80; 
 R.'M. La Follette on, 81-84 
 
 Local government, relation of commis- 
 sions to, 236-238 
 
 Louisiana, prohibition in, 348 
 
 Lummus, II. T., 150-157 
 
 Lush, C. K., 399-404 
 
 McCarthy, Charles, 63-74 
 
 Mack, Julian W., 199-207 
 
 McLean, Governor, 127-129 
 
 Maine, Supreme Court on conservation, 
 
 265-270; prohibition in, 352 
 Maryland, prohibition in, 347 
 Massachusetts, governor's power in, 
 
 3-7 ; prohibition in, 352 
 Michigan, prohibition in, 350 
 Minnesota, prohibition in, 350 
 Mississippi, prohibition in, 345 
 Missouri, law enforcement in, 26-27 ; 
 
 prohibition in, 348 ; also see Folk 
 Montana, prohibition in, 351 
 
 Nebraska, prohibition in, 351 
 Nevada, prohibition in, 351 
 New Hampshire, prohibition in, 352 
 New Jersey, prohibition in, 352 
 New York, conservation in, 271-284; 
 constitutional conventions, 435-437 ; 
 legislative apportionment, 120-126; 
 public-service commissions, 242-252 
 Nominations, by direct vote, 383-394 ; 
 by majority vote, 394-398 ; amend- 
 ment to primary law, 399-404 ; " sec- 
 ond-choice arrangement," 399-404 
 
INDEX 
 
 473 
 
 North Carolina, prohibition in, 345 
 North Dakota, prohibition in, 351 
 
 Ohio, legislature of, 43-44 ; prohibition 
 in, 349 
 
 Oklahoma, prohibition in, 344 ; consti- 
 tution of, 450-464 
 
 Oregon, popular government in, 84-108; 
 prohibition in, 352 
 
 Orth, S. P., 41-56 
 
 Osborne, T. M., 240-252 
 
 Pardoning power. See Governor 
 Parole law of Illinois, 207-217 
 Pennsylvania, constabulary of, 217- 
 
 221 ; prohibition in, 353 
 Primary, the direct. Senator Bourne on, 
 93-103; La FoUette on, 383, 394; 
 "second-choice arrangement" in, 
 399-404 ; use of, by the people, 
 414-421 
 Prohibition, the saloon and the law, 
 338-342 ; the nation's antidrink cru- 
 sade, 342-356; another year of de- 
 feat, 357-363 ; cause of movement, 
 353; Antisaloon League, 355-356; 
 in Europe, 357 ; in the South, 357- 
 358; in the Middle West, 358-360; 
 in New York and New England, 360 ; 
 federal legislation on, 361 ; economic 
 argument for, 362-363 
 
 Railroads, regulation of, 252-262, lo-i i; 
 
 taxation of, 310-318; tendencies in 
 
 taxation of, 318-325 
 Recall, the, in Oregon, 106-107 ; in 
 
 general, 114— 116 
 Rhode Island, prohibition in, 352 
 Root, Elihu, 120-126 
 
 Russell, Governor W. E., on the power 
 of the governor, i— 10; message on 
 lobbying, 79-80 
 
 Schaffner, M. H., 108-116 
 
 Schurman, J. G., 331-338 
 
 Senators, popular election of, 404-414; 
 
 deadlocks in elections of, 421-428 
 Separation of state and local revenues, 
 
 293-301 
 Smith, W. R., 158-167 
 Snively, E. A., 207—217 
 South Carolina, the " dispensary " in, 347 
 South Dakota, prohibition in, 351 
 Supervision by the state of local finance, 
 
 301-310 
 
 Taft, W. H., 173 
 
 Taxation, supervision of local, 301-310 ; 
 
 of railways, 310—318; tendencies in, 
 
 318-325; separation of revenues, 
 
 293-301 
 Tennessee, prohibition in, 345 
 Texas, pardoning power in, 19-25 ; 
 
 prohibition in, 348 
 Treasury, the,, protection of, 325-327 
 
 Vermont, the legislature of, 42-43 
 Virginia, prohibition in, 346 
 
 Washington, prohibition in, 352 
 White, F. H., on commissions, 222-239 
 White, W. A., on Folk, 10-14 
 Willson, Governor Augustus E., 28-40 
 Wisconsin, Legislative Reference De- 
 partment of, 63-74; prohibition in, 
 
 350 
 Wolfe, S. H., 286-292 
 Wyoming, prohibition in, 351 
 
,j}L,, 
 ii.iiiiiiilii mil 
 
 iiiiiiliiliiiiiii