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Civil Government in the United States Considered with by John Fiske

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situated as well as the largest. If the remonstrances adopted at this
congress had been heeded by the British government, and peace had
followed, this congress would probably have been as temporary an
affair as its predecessors; people would probably have waited until
overtaken by some other emergency. But inasmuch as war followed,
the congress assembled again in May, 1775, and thereafter became
practically a permanent institution until it died of old age with the
year 1788.

[Sidenote: Continental Congress (1774-1789).]
This congress was called "continental" to distinguish it from the
"provincial congresses" held in several of the colonies at about the
same time. The thirteen colonies were indeed but a narrow strip on the
edge of a vast and in large part unexplored continent, but the word
"continental" was convenient for distinguishing between the whole
confederacy and its several members.

[Sidenote: The several states were never at any time sovereign
[Sidenote: The Articles of Confederation]
The Continental Congress began to exercise a certain amount of
directive authority from the time of its first meeting in 1774. Such
authority as it had arose simply from the fact that it represented an
agreement on the part of the several governments to pursue a certain
line of policy. It was a diplomatic and executive, but scarcely yet a
legislative body. Nevertheless it was the visible symbol of a kind of
union between the states. There never was a time when any one of the
original states exercised singly the full powers of sovereignty. Not
one of them was ever a small sovereign state like Denmark or Portugal.
As they acted together under the common direction of the British
government in 1759, the year of Quebec, so they acted together under
the common direction of that revolutionary body, the Continental
Congress, in 1775, the year of Bunker Hill. In that year a
"continental army" was organized in the name of the "United Colonies."
In the following year, when independence was declared, it was done
by the concerted action of all the colonies; and at the same time a
committee was appointed by Congress to draw up a written constitution.
This constitution, known as the "Articles or Confederation," was
submitted to Congress in the autumn of 1777, and was sent to the
several states to be ratified. A unanimous ratification was necessary,
and it was not until March 1781, that unanimity was secured and the
articles adopted.

Meanwhile the Revolutionary War had advanced into its last stages,
having been carried on from the outset under the general direction
of the Continental Congress. When reading about this period of our
history, the student must be careful not to be misled by the name
"congress" into reasoning as if there were any resemblance whatever
between that body and the congress which was created by our Federal
Constitution. The Continental Congress was not the parent of our
Federal Congress; the former died without offspring, and the latter
had a very different origin, as we shall soon see. The former simply
bequeathed to the latter a name, that was all.

[Sidenote: Nature and powers of the Continental Congress]
The Continental Congress was an assembly of delegates from the thirteen
states, which from 1774 to 1783 held its sessions at Philadelphia.[2] It
owned no federal property, not even the house in which it assembled, and
after it had been turned out of doors by a mob of drunken soldiers in
June, 1783, it flitted about from place to place, sitting now at
Trenton, now at Annapolis, and finally at New York.[3] Each state sent
to it as many delegates as it chose, though after the adoption of the
articles no state could send less than two or more than seven. Each
state had one vote, and it took nine votes, or two thirds of the whole,
to carry any measure of importance. One of the delegates was chosen
president or chairman of the congress, and this position was one of
great dignity and considerable influence, but it was not essentially
different from the position, of any of the other delegates. There were
no distinct executive officers. Important executive matters were at
first assigned to committees, such as the Finance Committee and the
Board of War, though at the most trying time the finance committee was a
committee of one, in the person of Robert Morris, who was commonly
called the Financier. The work of the finance committee was chiefly
trying to solve the problem of paying bills without spending money, for
there was seldom any money to spend. Congress could not tax the people
or recruit the army. When it wanted money or troops, it could only ask
the state governments for them; and generally it got from a fifth to a
fourth part of the troops needed, but of money a far smaller proportion.
Sometimes it borrowed money from Holland or France, but often its only
resource was to issue paper promises to pay, or the so-called
Continental paper money. There were no federal courts,[4] nor marshals
to execute federal decrees. Congress might issue orders, but it had no
means of compelling obedience.

[Footnote 2: Except for a few days in December, 1776, when it fled
to Baltimore; and again from September, 1777, to June, 1778, when
Philadelphia was in possession of the British; during that interval
Congress held its meetings at York in Pennsylvania.]

[Footnote 3: See my _Critical Period of American History_, pp.
112, 271, 306]

[Footnote 5: Except the "Court of Appeals in Cases of Capture," for
an admirable account of which see Jameson's _Essays in the
Constitutional History of the United States_, pp. 1-45.]

[Sidenote: It was not fully endowed with sovereignty.]
The Continental Congress was therefore not in the full sense a
sovereign body. A government is not really a government until it can
impose taxes and thus command the money needful for keeping it in
existence. Nevertheless the Congress exercised some of the most
indisputable functions of sovereignty. "It declared the independence
of the United States; it contracted an offensive and defensive
alliance with France; it raised and organized a Continental army; it
borrowed large sums of money, and pledged what the lenders understood
to be the national credit for their repayment; it issued an
inconvertible paper currency, granted letters of marque, and built a
navy." [6] Finally it ratified a treaty of peace with Great Britain. So
that the Congress was really, in many respects, and in the eyes of the
world at large, a sovereign body. Time soon showed that the continued
exercise of such powers was not compatible with the absence of the
power to tax the people. In truth the situation of the Continental
Congress was an illogical situation. In the effort of throwing off
the sovereignty of Great Britain, the people of these states were
constructing a federal union faster than they realized. Their theory
of the situation did not keep pace with the facts, and their first
attempt to embody their theory, in the Articles of Confederation, was
not unnaturally a failure.

[Footnote 6: _Critical Period_, p. 93.]

[Sidenote: Decline of the Continental Congress.]
At first the powers of the Congress were vague. They were what are
called "implied war powers;" that is to say, the Congress had a war
with Great Britain on its hands, and must be supposed to have power to
do whatever was necessary to bring the war to a successful conclusion.
At first, too, when it had only begun to issue paper money, there
was a momentary feeling of prosperity. Military success added to its
appearance of strength, and the reputation of the Congress reached its
high water mark early in 1778, after the capture of Burgoyne's army
and the making of the alliance with France. After that time, with the
weary prolonging of the war, the increase of the public debt, and the
collapse of the paper currency, its reputation steadily declined.
There was also much work to be done in reorganizing the state
governments, and this kept at home in the state legislatures many of
the ablest men who would otherwise have been sent to the Congress.
Thus in point of intellectual capacity the latter body was distinctly
inferior in 1783 to what it had been when first assembled nine years

[Sidenote: Anarchical tendencies.]
The arrival of peace did not help the Congress, but made matters worse.
When the absolute necessity of presenting a united front to the common
enemy was removed, the weakness of the union was shown in many
ways that were alarming. The _sentiment_ of union was weak. In spite of
the community in language and institutions, which was so favourable to
union, the people of the several states had many local prejudices which
tended to destroy the union in its infancy. A man was quicker to
remember that he was a New Yorker or a Massachusetts man than that he
was an American and a citizen of the United States. Neighbouring states
levied custom-house duties against one another, or refused to admit into
their markets each other's produce, or had quarrels about boundaries
which went to the verge of war. Things grew worse every year until by
the autumn of 1786, when the Congress was quite bankrupt and most of the
states nearly so, when threats of secession were heard both in New
England and in the South, when there were riots in several states and
Massachusetts was engaged in suppressing armed rebellion, when people in
Europe were beginning to ask whether we were more likely to be seized
upon by France or reconquered piecemeal by Great Britain, it came to be
thought necessary to make some kind of a change.

[Sidenote: The Federal Convention (1787).]

Men were most unwillingly brought to this conclusion, because they were
used to their state assemblies and not afraid of them, but they were
afraid of increasing the powers of any government superior to the states,
lest they should thus create an unmanageable tyranny. They believed that
even anarchy, though a dreadful evil, is not so dreadful as despotism,
and for this view there is much to be said. After no end of trouble a
convention was at length got together at Philadelphia in May, 1787, and
after four months of work with closed doors, it was able to offer to the
country the new Federal Constitution. Both in its character and in
the work which It did, this Federal Convention, over which Washington
presided, and of which Franklin, Madison, and Hamilton were members,
was one of the most remarkable deliberative bodies known to history.

We have seen that the fundamental weakness of the Continental Congress
lay in the fact that it could not tax the people. Hence although it
could for a time exert other high functions of sovereignty, it could
only do so while money was supplied to it from other sources than
taxation; from contributions made by the states in answer to its
"requisitions," from foreign loans, and from a paper currency. But such
resources could not last long. It was like a man's trying to live upon
his own promissory notes and upon gifts and unsecured loans from his
friends. When the supply of money was exhausted, the Congress soon found
that it could no longer comport itself as a sovereign power; it could
not preserve order at home, and the situation abroad may be illustrated
by the fact that George III. kept garrisons in several of our
northwestern frontier towns and would not send a minister to the United
States. This example shows that, among the sovereign powers of a
government, the power of taxation is the fundamental one upon which all
the others depend. Nothing can go on without money.

But the people of the several states would never consent to grant the
power of taxation, to such a body as the Continental Congress, in
which they were not represented. The Congress was not a legislature,
but a diplomatic body; it did not represent the people, but the state
governments; and a large state like Pennsylvania had no more weight in
it than a little state like Delaware. If there was to be any central
assembly for the whole union, endowed with the power of taxation,
it must be an assembly representing the American people just as the
assembly of a single state represented the people of the state.

As soon as this point became clear, it was seen to be necessary to
throw the Articles of Confederation overboard, and construct a new
national government. As was said above, our Federal Congress is not
descended from the Continental Congress. Its parentage is to be sought
in the state legislatures. Our federal government was constructed
after the general model of the state governments, with some points
copied from British usages, and some points that were original and


1. What are the reasons for reserving the Constitution of the
United States for the concluding chapter?

2. Circumstances that favoured union of the colonies:--

a. The origin of their inhabitants.
b. All the details of their civil government.
c. The ease with which they understood one another.
d. Their common dangers, two in particular.

3. Earlier unions among the colonies:--

a. The New England Confederacy,--its time, purpose, and
b. The French danger, and plans to meet it.
c. The Albany Congress,--its nature and immediate purpose.
d. The Stamp Act Congress.

4. Committees of correspondence:--

a. The circular letter of Massachusetts in 1768.
b. Town committees of correspondence in Massachusetts in
c. Colonial committees of correspondence in 1773.
d. The habit established through these committees.

5. The Continental Congress:--

a. The immediate causes that led to it.
b. How it might have been temporary.
c. How it became permanent.
d. Its date, place of meeting, and duration.
e. Why "continental" as distinguished from "provincial?"
f. The nature and extent of its authority.
g. The states represented in it never fully sovereign.

6. Give an account of the "Articles of Confederation."

7. Distinguish between the Continental Congress and the

8. The powers of the Continental Congress:--
a. Its homelessness and wandering.
b. Its delegates and their voting power.
c. Its presiding officer.
d. Its management of executive matters.
e. The finance committee and its problems.
f. The raising of money.
g. The compelling of obedience.

9. The Continental Congress not a sovereign body:--

a. The nature of real government.
b. Some functions of sovereignty exercised by the Congress.
c. The situation illogical.

10. Explain the "implied war powers" of the Congress.

11. When was the Congress at the height of its reputation, and

12. Explain the decline in its reputation from 1778 to 1783.

13. The alarming weakness of the union after 1783:--

a. The effect of peace upon the union.
b. Local prejudices.
c. State antagonisms.
d. The gloomy outlook in 1786.

14. The Federal Convention in 1787:--

a. The reluctance to make the change that was felt to be needed.
b. Some facts about the Convention.
c. The character of its delegates.
d. The fundamental weakness of the Continental Congress.
e. The fundamental power of a strong government.
f. The objection to granting the power of taxation to the Continental
g. The sort of assembly demanded for exercising the taxing power.
h. The model on which the federal government was built.

Section 2. _The Federal Congress._

[Sidenote: The House of Representatives.]
The federal House of Representatives is descended, through the state
houses of representatives, from the colonial assemblies. It is an
assembly representing the whole population of the country as if it were
all in one great state. It is composed of members chosen every other
year by the people of the states. Persons in any state who are qualified
to vote for state representatives are qualified to vote for federal
representatives. This arrangement left the power of regulating the
suffrage in the hands of the several states, where it still remains,
save for the restriction imposed in 1870 for the protection of the
southern freedmen. A candidate for election to the House of
Representatives must be twenty-five years old, must have been seven
years a citizen of the United States, and must be an inhabitant of the
state in which he is chosen.

[Sidenote: The three fifths compromise.]
As the Federal Congress is a taxing body, representatives and direct
taxes are apportioned among the several states according to the same
rule, that is, according to population. At this point a difficulty
arose in the Convention as to whether slaves should be counted as
population. If they were to be counted, the relative weight of the
slave states in all matters of national legislation would be much
increased. The northern states thought, with reason, that it would
be unduly increased. The difficulty was adjusted by a compromise
according to which five slaves were to be reckoned as three persons.
Since the abolition of slavery this provision has become obsolete, but
until 1860 it was a very important factor in American history.[7]

In the federal House of Representatives the great states of course
have much more weight than the small states. In 1790 the four largest
states had 32 representatives, while the other nine had only 33. The
largest state, Virginia, had 10 representatives to 1 from Delaware.
These disparities have increased. In 1880, out of thirty-eight states
the nine largest had a majority of the house, and the largest state,
New York, had 34 representatives to 1 from Delaware.

[Footnote 7: See my _Critical Period_, pp. 257-262.]

[Sidenote: The Connecticut compromise]
This feature of the House of Representatives caused
the smaller states in the Convention to oppose the whole scheme of
constructing a new government. They were determined that great and
small states should have equal weight in Congress. Their steadfast
opposition threatened to ruin everything, when fortunately a method
of compromise was discovered. It was intended that the national
legislature, in imitation of the state legislatures, should have an
upper house or senate; and at first the advocates of a strong national
government proposed that the senate also should represent population,
thus differing from the lower house only in the way in which we have
seen that it generally differed in the several states. But it happened
that in the state of Connecticut the custom was peculiar. There it
had always been the custom to elect the governor and upper house by a
majority vote of the whole people, while for each township there was
an equality of representation In the lower house. The Connecticut
delegates in the Convention, therefore, being familiar with a
legislature in which the two houses were composed on different
principles, suggested a compromise. Let the House of Representatives,
they said, represent the people, and let the Senate represent the
states; let all the states, great and small, be represented equally
in the federal Senate. Such was the famous "Connecticut Compromise."
Without it the Convention would probably have broken up without
accomplishing anything. When it was adopted, half the work of making
the new government was done, for the small states, having had their
fears thus allayed by the assurance that they were to be equally
represented in the Senate, no longer opposed the work but cooperated
in it most zealously.

[Sidenote: The Senate]
Thus it came to pass that the upper house of our national legislature
is composed of two senators from each state. As they represent the
state, they are chosen by its legislature and not by the people; but
when they have taken their seats in the senate they do not vote
by states, like the delegates in the Continental Congress. On the
contrary each senator has one vote, and the two senators from the same
state may, and often do, vote on opposite sides.

In accordance with the notion that an upper house should be somewhat
less democratic than a lower house, the term of office for senators
was made longer than for representatives. The tendency is to make the
Senate respond more slowly to changes in popular sentiment, and
this is often an advantage. Popular opinion is often very wrong at
particular moments, but with time it is apt to correct its mistakes.
We are usually in more danger of suffering from hasty legislation than
from tardy legislation. Senators are chosen for a term of six years,
and one third of the number of terms expire every second year, so
that, while the whole Senate may be renewed by the lapse of six years,
there is never a "new Senate." The Senate has thus a continuous
existence and a permanent organization; whereas each House of
Representatives expires at the end of its two years' term, and is
succeeded by a "new House," which requires to be organized by electing
its officers, etc., before proceeding to business. A candidate for the
senatorship must have reached the age of thirty, must have been nine
years a citizen of the United States, and must be an inhabitant of the
state which he represents.

The constitution leaves the times, places, and manner of holding
elections for senators and representatives to be prescribed in each
state by its own legislature; but it gives to Congress the power to
alter such regulations, except as to the place of choosing senators.

Here we see a vestige of the original theory according to which the
Senate was to be peculiarly the home of state rights.

[Sidenote: Electoral districts.]
[Sidenote: "Gerrymandering."]
In the composition of the House of Representatives the state
legislatures play a very important part. For the purposes of the
election a state is divided into districts corresponding to the number
of representatives the state is entitled to send to Congress. These
electoral districts are marked out by the legislature, and the division
is apt to be made by the preponderating party with an unfairness that is
at once shameful and ridiculous. The aim, of course, is so to lay out
the districts as to secure in the greatest possible number of them a
majority for the party which conducts the operation. This is done
sometimes by throwing the greatest possible number of hostile voters
into a district which is anyhow certain to be hostile, sometimes by
adding to a district where parties are equally divided some place in
which the majority of friendly voters is sufficient to turn the scale.
There is a district in Mississippi (the so-called Shoe String district)
250 miles long by 30 broad, and another in Pennsylvania resembling a
dumb-bell.... In Missouri a district has been contrived longer, if
measured along its windings, than the state itself, into which as large
a number as possible of the negro voters have been thrown.[8] This
trick is called "gerrymandering," from Elbridge Gerry, of Massachusetts,
who was vice-president of the United States from 1813 to 1817. It seems
to have been first devised in 1788 by the enemies of the Federal
Constitution in Virginia, in order to prevent the election of James
Madison to the first Congress, and fortunately it was unsuccessful.[9]
It was introduced some years afterward into Massachusetts. In 1812,
while Gerry was governor of that state, the Republican legislature
redistributed the districts in such wise that the shapes of the towns
forming a single district in Essex county gave to the district a
somewhat dragon-like contour. This was indicated upon a map of
Massachusetts which Benjamin Russell, an ardent Federalist and editor of
the "Centinel," hung up over the desk in his office. The celebrated
painter, Gilbert Stuart, coming into the office one day and observing
the uncouth figure, added with his pencil a head, wings, and claws, and
exclaimed, "That will do for a salamander!" "Better say a Gerrymander!"
growled the editor; and the outlandish, name, thus duly coined, soon
came into general currency.


[Footnote 8: Tyler's _Patrick Henry_, p. 313.]

[Footnote 9: _Winsor's Memorial History of Boston_, vol. iii. p. 212;
see also Bryce, _loc. cit_. The word is sometimes incorrectly pronounced
"jerrymander." Mr. Winsor observes that the back line of the creature's
body forms a profile caricature of Gerry's face, with the nose at

[Sidenote: The election their at large.]
When after an increase in its number of representatives the state has
failed to redistribute its districts, the additional member or members
are voted for upon a general state ticket, and are called
"representatives at large." In Maine, where the census of 1880 had
_reduced_ the number of representatives and there was some delay in the
redistribution, Congress allowed the State in 1882 to elect all its
representatives upon a general ticket. The advantage of the district
system is that the candidates are likely to be better known by
neighbours, but the election at large is perhaps more likely to secure
able men.[10] It is the American custom to nominate only residents of the
district as candidates for the House of Representatives. A citizen of
Albany, for example, would not be nominated for the district in which
Buffalo is situated. In the British practice, on the other hand, if an
eminent man cannot get a nomination in his own county or borough, there
is nothing to prevent his standing for any other county or borough. This
system seems more favourable to the independence of the legislator than
our system. Some of its advantages are obtained by the election at

[Footnote 10: The difference is similar to the difference between the
French _scrutin d'arrondissement_ and _scrutin de liste_.]

[Sidenote: Time of assembling.]
Congress must assemble at least once in every year, and the constitution
appoints the first Monday in December for the time of meeting; but
Congress can, if worth while, enact a law changing the time. The
established custom is to hold the election for representatives upon the
same day as the election for president, the Tuesday after the first
Monday in November. As the period of the new administration does not
begin until the fourth day of the following March, the new House of
Representatives does not assemble until the December following that
date, unless the new president should at some earlier moment summon an
extra session of Congress. It thus happens that ordinarily the
representatives of the nation do not meet for more than a year after
their election; and as their business is at least to give legislative
expression to the popular opinion which elected them, the delay is in
this instance regarded by many persons as inconvenient and injudicious.

Each house is judge of the elections, qualifications, and returns of its
own members; determines its own rules of procedure, and may punish its
members for disorderly behaviour, or by a two thirds vote expel a
member. Absent members may be compelled under penalties to attend. Each
house is required to keep a journal of its proceedings and at proper
intervals to publish it, except such parts as for reasons of public
policy had better be kept secret. At the request of one fifth of the
members present, the yeas and nays must be entered on the journal.
During the session of Congress neither house may, without consent of the
other, adjourn for more than three days, or to any other place than that
in which Congress is sitting.

[Sidenote: Privileges of members.]
Senators and representatives receive a salary fixed by law, and as they
are federal functionaries they are paid from the federal treasury. In
all cases, except treason or felony or breach of the peace, they are
privileged from arrest during their attendance in Congress, as also
while on their way to it and while returning home; "and for any speech
or debate in either house they shall not be questioned in any other
place." These provisions are reminiscences of the evil days when the
king strove to interfere, by fair means or foul, with free speech in
parliament; and they are important enough to be incorporated in the
supreme law of the land. No person can at the same time hold any civil
office under the United States government and be a member of either
house of Congress.

[Sidenote: The Speaker.]
The vice-president is the presiding officer of the Senate, with power
to vote only in case of a tie. The House of Representatives elects its
presiding officer, who is called the Speaker. In the early history of
the House of Commons, its presiding officer was naturally enough its
_spokesman_. He could speak for it in addressing the crown. Henry
of Keighley thus addressed the crown in 1301, and there were other
instances during that century, until in 1376 the title of Speaker was
definitely given to Sir Thomas Hungerford, and from that date the list
is unbroken. The title was given to the presiding officers of the
American colonial assemblies, and thence it passed on to the state and
federal legislatures. The Speaker presides over the debates, puts the
question, and decides points of order. He also appoints the committees
of the House of Representatives, and as the initiatory work in our
legislation is now so largely done by the committees, this makes him
the most powerful officer of the government except the President.

[Sidenote: Impeachment in England]
The provisions for impeachment of public officers are copied from the
custom in England. Since the fourteenth century the House of Commons
has occasionally exercised the power of impeaching the king's
ministers and other high public officers, and although the power was
not used during the sixteenth century it was afterward revived and
conclusively established. In 1701 it was enacted that the royal pardon
could not be pleaded against an impeachment, and this act finally secured
the responsibility of the king's ministers to Parliament. An impeachment
is a kind of accusation or indictment brought against a public officer
by the House of Commons. The court in which the case is tried is the House
of Lords, and the ordinary rules of judicial procedure are followed.
The regular president of the House of Lords is the Lord Chancellor, who
is the highest judicial officer in the kingdom. A simple majority vote
secures conviction, and then it is left for the House of Commons to
say whether judgment shall be pronounced or not.

[Sidenote: Impeachment in the United States.]
In the United States the House of Representatives has the sole
power of impeachment, and the Senate has the sole power to try all
impeachments. When the president of the United States is tried,
the chief-justice must preside. As a precaution against the use of
impeachment for party purposes, a two thirds vote is required for
conviction; and this precaution proved effectual (fortunately, as most
persons now admit) in the famous case of President Johnson in 1868. In
case of conviction the judgment cannot extend further than "to removal
from office, and disqualification to hold and enjoy any office of
honour, trust, or profit under the United States;" but the person
convicted is liable afterward to be tried and punished by the ordinary
process of law.

[Sidenote: Veto power of the president]
The provisions of the Constitution for legislation are admirably
simple. All bills for raising revenue must originate in the lower
house, but the upper house may propose or concur with amendments, as
on other bills. This provision was inherited from Parliament, through
the colonial legislatures. After a bill has passed both houses it must
be sent to the president for approval. If he approves it, he signs
it; if not, he returns it to the house in which it originated, with
a written statement of his objections, and this statement must be
entered in full upon the journal of the house. The bill is then
reconsidered, and if it obtains a two thirds vote, it is sent,
together with the objections, to the other house. If it there
likewise obtains a two thirds vote, it becomes a law, in spite of the
objections. Otherwise it fails. If the president keeps a bill longer
than ten days (Sundays excepted) without signing it, it becomes a law
without his signature; unless Congress adjourns before the expiration
of the ten days, in which case it fails to become a law, just as if
it had been vetoed. This method of vetoing a bill just before the
expiration of a Congress, by keeping it in one's pocket, so to speak,
was dubbed a "pocket veto," and was first employed by President
Jackson in 1829. The president's veto power is a qualified form of
that which formerly belonged to the English sovereign but has now, as
already observed, become practically obsolete. As a means of guarding
the country against unwise legislation, it has proved to be one of the
most valuable features of our Federal Constitution. In bad hands it
cannot do much harm, it can only delay for a short time a needed law.
But when properly used it can save the country from, laws that if once
enacted would sow seeds of disaster very hard to eradicate; and it has
repeatedly done so. A single man will often act intelligently where
a group of men act foolishly, and, as already observed, he is apt to
have a keener sense of responsibility.


What is to be said with regard to the following topics?

1. The House of Representatives:--

a. Its relation to the people.
b. The term of service.
c. Qualifications of those who may vote for representatives.
d. Qualifications for membership.
e. The three fifths compromise.

2. The Connecticut Compromise.

a. The powers of the different states in the House.
b. Opposition to the scheme of a new government.
c. What the advocates of a strong government wanted the Senate to
d. A peculiar Connecticut system.
e. The suggestion of the Connecticut delegates.
f. The effect of the compromise.

3. The Senate:--

a. The number of senators.
b. The method of electing senators.
c. The voting of senators.
d. The term of service.
e. The maintenance of a continuous existence.
f. A comparison with the House in respect to nearness to the people.
g. Qualifications for membership.

4. Elections for senators and representatives:--

a. Times, places, and manner of holding elections.
b. The power of Congress over state regulations.
c. Electoral districts.
d. The temptation to unfairness in laying out electoral districts.
e. Illustrations of unfair divisions.
f. "Gerrymandering."
g. Representatives at large.
h. The advantage of the district system.
i. The British system and its advantage.

5. The assembling of Congress:--

a. The time of assembling.
b. The interval between a member's election and the beginning of his
c. The disadvantage of this long interval.

6. What is the duty of each house in respect (1) to its membership,
(2) its rules, (3) its records, and (4) its adjournment.

7. Give an account (1) of the pay of a congressman, (2) of his freedom
from arrest, (3) of his responsibility for words spoken in debate, and
(4) of his right to hold other office.

8. Tell (1) who preside in Congress, (2) how the name _speaker_
originated, (3) what the speaker's duties are, and (4) what his power
in the government is.

9. Impeachment of public officers:--

a. Old English usage.
b. The conduct of an impeachment trial in England.
c. The conduct of an impeachment trial in the United States.
d. The penalty in case of conviction.

10. The provisions of the Constitution for legislation:--

a. Bills for raising revenue.
b. How a bill becomes a law.
c. The president's veto power.
d. Passage of a bill over the president's veto.
e. The "pocket veto."
f. The veto power in England.
g. The value of the veto power.

Section 3. _The Federal Executive._

[Sidenote: The title of "President."]
In signing or vetoing bills passed by Congress the president shares in
legislation, and is virtually a third house. In his other capacities
he is the chief executive officer of the Federal Union; and inasmuch
as he appoints the other great executive officers, he is really the
head of the executive department, not--like the governor of a state--a
mere member of it. His title of "President" is probably an inheritance
from the presidents of the Continental Congress. In Franklin's plan
of union, in 1754, the head of the executive department was called
"Governor General," but that title had an unpleasant sound to American
ears. Our great-grandfathers liked "president" better, somewhat as the
Romans, in the eighth century of their city, preferred "imperator" to
"rex." Then, as it served to distinguish widely between the head of
the Union and the heads of the states, it soon fell into disuse in the
state governments, and thus "president" has come to be a much grander
title than "governor," just as "emperor" has come to be a grander
title than "king." [11]

[Footnote 11: See above p. 163.]

[Sidenote: The electoral college.]
There was no question which perplexed the Federal Convention more than
the question as to the best method of electing the president. There
was a general distrust of popular election for an office so exalted.
At one time the Convention decided to have the president elected by
Congress, but there was a grave objection to this; it would be likely
to destroy his independence, and make him the tool of Congress.
Finally the device of an electoral college was adopted. Each state
is entitled to a number of electors equal to the number of its
representatives in Congress, _plus_ two, the number of its
senators. Thus to-day Delaware, with 1 representative, has 3 electors;
Missouri, with 14 representatives, has 16 electors; New York, with
34 representatives, has 36 electors. No federal senator or
representative, or any person holding civil office under the United
States, can serve as an elector. Each state may appoint or choose its
electors in such manner as it sees fit; at first they were more often
than otherwise chosen by the legislatures, now they are always elected
by the people. The day of election must be the same in all the states.

By an act of Congress passed in 1792 it is required to be within 34 days
preceding the first Wednesday in December. A subsequent act in 1845
appointed the Tuesday following the first Monday in November as election

By the act of 1792 the electors chosen in each state are required to
assemble on the first Wednesday in December at some place in the state
which is designated by the legislature. Before this date the governor of
the state must cause a certified list of the names of the electors to be
made out in triplicate and delivered to the electors. Having met
together they vote for president and vice-president, make out a sealed
certificate of their vote in triplicate, and attach to each copy a copy
of the certified list of their names. One copy must be delivered by a
messenger to the president of the Senate at the federal capital before
the first Wednesday in January; the second is sent to the same officer
through the mail; the third is to be deposited with the federal judge of
the district in which the electors meet. If by the first Wednesday in
January the certificate has not been received at the federal capital,
the secretary of state is to send a messenger to the district judge and
obtain the copy deposited with him. The interval of a month was allowed
to get the returns in, for those were not the days of railroad and
telegraph. The messengers were allowed twenty-five cents a mile, and
were subject to a fine of a thousand dollars for neglect of duty. On the
second Wednesday in February, Congress is required to be in session, and
the votes received are counted and the result declared.[12]

[Footnote 12: See note on p. 278.]

[Sidenote: The twelfth amendment (1804).]
At first the electoral votes did not state whether the candidates named
in them were candidates for the presidency or for the vice-presidency.
Each elector simply wrote down two names, only one of which could be the
name of a citizen of his own state. In the official count the candidate
who had the largest number of votes, provided they were a majority of
the whole number, was declared president, and the candidate who had the
next to the largest number was declared vice-president. The natural
result of this was seen in the first contested election in 1796, which
made Adams president, and his antagonist vice-president. In the next
election in 1800 it gave to Jefferson and his colleague Burr exactly the
same number of votes. In such a case the House of Representatives must
elect, and such intrigues followed for the purpose of defeating
Jefferson that the country was brought to the verge of civil war. It
thus became necessary to change the method. By the twelfth amendment to
the constitution, declared in force in 1804, the present method was
adopted. The electors make separate ballots for president and for
vice-president. In the official count the votes for president are first
inspected. If no candidate has a majority, then the House of
Representatives must immediately choose the president from the three
names highest on the list. In this choice the house votes by states,
each state having one vote; a quorum for this purpose must consist of at
least one member from two thirds of the states, and a majority of all
the states is necessary for a choice. Then if no candidate for the
vice-presidency has a majority, the Senate makes its choice from the two
names highest on the list; a quorum for the purpose consists of two
thirds of the whole number of senators, and a majority of the whole
number is necessary to a choice. Since this amendment was made there has
been one instance of an election of the president by the House of
Representatives,--that of John Quincy Adams in 1825; and there has been
one instance of an election of the vice-president by the Senate,--that
of Richard Mentor Johnson in 1837.

[Sidenote: The electoral commission (1877).]
One serious difficulty was not yet foreseen and provided for--that of
deciding between two conflicting returns sent in by two hostile sets of
electors in the same state, each list being certified by one of two
rival governors claiming authority in the same state. Such a case
occurred in 1877, when Florida, Louisiana, and South Carolina were the
scene of struggles between rival governments. Ballots for Tilden and
ballots for Hayes were sent in at the same time from these states, and
in the absence of any recognized means of determining which ballots to
count, the two parties in Congress submitted the result to arbitration.
An "electoral commission" was created for the occasion, composed of five
senators, five representatives, and five judges of the supreme court;
and this body decided what votes were to be counted. It was a clumsy
expedient, but infinitely preferable to civil war. The question of
conflicting returns has at length been set at rest by the act of 1887,
which provides that no electoral votes can be rejected in counting
except by the concurrent action of the two houses of Congress.

[Sidenote: Presidential succession.]
The devolution of the presidential office in case of the president's
death has also been made the subject of legislative change and
amendment. The office of vice-president was created chiefly for the
purpose of meeting such an emergency. Upon the accession of the
vice-president to the presidency, the Senate would proceed to elect its
own president _pro tempore_. An act of 1791 provided that in case of the
death, resignation or disability of both president and vice-president,
the succession should devolve first upon the president _pro tempore_ of
the Senate and then upon the speaker of the House of Representatives,
until the disability should be removed or a new election be held. But
supposing a newly elected president to die and be succeeded by the
vice-president before the assembling of the newly elected Congress; then
there would be no president _pro tempore_ of the Senate and no speaker
of the House of Representatives, and thus the death of one person might
cause the presidency to lapse. Moreover the presiding officers of the
two houses of Congress might be members of the party defeated in the
last presidential election; indeed, this is often the case. Sound policy
and fair dealing require that a victorious party shall not be turned out
because of the death of the president and vice-president. Accordingly an
act of 1886 provided that in such an event the succession should devolve
upon the members of the cabinet in the following order: secretary of
state, secretary of the treasury, secretary of war, attorney-general,
postmaster-general, secretary of the navy, secretary of the interior.
This would seem to be ample provision against a lapse.

[Sidenote: Original purpose of the electoral college not fulfilled.]
To return to the electoral college: it was devised as a safeguard
against popular excitement. It was supposed that the electors in their
December meeting would calmly discuss the merits of the ablest men in
the country and make an intelligent selection for the presidency. The
electors were to use their own judgment, and it was not necessary
that all the electors chosen in one state should vote for the same
candidate. The people on election day were not supposed to be voting
for a president but for presidential electors. This theory was never
realized. The two elections of Washington, in 1788 and 1792, were
unanimous. In the second contested election, that of 1800, the
electors simply registered the result of the popular vote, and it has
been so ever since. Immediately after the popular election, a whole
month before the meeting of the electoral college, we know who is to
be the next president. There is no law to prevent an elector from
voting for a different pair of candidates from those at the head of
the party ticket, but the custom has become as binding as a statute.
The elector is chosen to vote for specified candidates, and he must do

[Sidenote: Electors formerly chosen in many states by districts; now
usually on a general ticket.]
On the other hand, it was not until long after 1800 that all the
electoral votes of the same state were necessarily given to the same
pair of candidates. It was customary in many states to choose the
electors by districts. A state entitled to ten electors would choose
eight of them in its eight congressional districts, and there were
various ways of choosing the other two. In some of the districts one
party would have a majority, in others the other, and so the electoral
vote of the state would be divided between two pairs of candidates.
After 1830 it became customary to choose the electors upon a general
ticket, and thus the electoral vote became solid in each state.[13]

[Footnote 13: In 1860 the vote of New Jersey was divided between Lincoln
and Douglas, but that was because the names of three of
the seven Douglas electors were upon two different tickets, and
thus got a majority of votes while the other four fell short. In
1892 the state of Michigan chose its electors by districts.]

[Sidenote: Minority presidents.]
[Sidenote: Advantages of the electoral system.]
This system, of course, increases the chances of electing presidents who
have received a minority of the popular vote. A candidate may carry one
state by an immense majority and thus gain 6 or 8 electoral votes; he
may come within a few hundred of carrying another state and thus lose 36
electoral votes. Or a small third party may divert some thousands of
votes from the principal candidate without affecting the electoral vote
of the state. Since Washington's second term we have had twenty-three
contested elections,[14] and in nine of these the elected president has
failed to receive a majority of the popular vote; Adams in 1824 (elected
by the House of Representatives), Polk in 1844, Taylor in 1848, Buchanan
in 1856, Lincoln in 1860, Hayes in 1876, Garfield in 1880, Cleveland in
1884, Harrison in 1888. This has suggested more or less vague
speculation as to the advisableness of changing the method of electing
the president. It has been suggested that it would be well to abolish
the electoral college, and resort to a direct popular vote, without
reference to state lines. Such a method would be open to one serious
objection. In a closely contested election on the present method the
result may remain doubtful for three or four days, while a narrow
majority of a few hundred votes in some great state is being ascertained
by careful counting. It was so in 1884. This period of doubt is sure to
be a period of intense and dangerous excitement. In an election without
reference to states, the result would more often be doubtful, and it
would be sometimes necessary to count every vote in every little
out-of-the-way corner of the country before the question could be
settled. The occasions for dispute would be multiplied a hundred fold,
with most demoralizing effect. Our present method is doubtless clumsy,
but the solidity of the electoral colleges is a safeguard, and as all
parties understand the system it is in the long run as fair for one as
for another.

[Footnote 14: All have been contested, except Monroe's re-election in
1820, when there was no opposing candidate.]

[Sidenote: Nomination of candidates by congressional caucus
The Constitution says nothing about the method of nominating candidates
for the presidency, neither has it been made the subject of legislation.
It has been determined by convenience. It was not necessary to nominate
Washington, and the candidacies of Adams and Jefferson were also matters
of general understanding. In 1800 the Republican and Federalist members
of Congress respectively held secret meetings or caucuses, chiefly for
the purpose of agreeing upon candidates for the vice-presidency and
making some plans for the canvass. It became customary to nominate
candidates in such congressional caucuses, but there was much hostile
comment upon the system as undemocratic. Sometimes the "favourite son"
of a state was nominated by the legislature, but as the means of travel
improved, the nominating convention came to be preferred. In 1824 there
were four candidates for the presidency,--Adams, Jackson, Clay, and
Crawford. Adams was nominated by the legislatures of most of the New
England states; Clay by the legislature of Kentucky, followed by the
legislatures of Missouri, Ohio, Illinois, and Louisiana; Crawford by the
legislature of Virginia; and Jackson by a mass convention of the people
of Blount County in Tennessee, followed by local conventions in many
other states. The congressional caucus met and nominated Crawford, but
this endorsement did not help him,[15] and this method was no longer
tried. In 1832 for the first time the candidates were all nominated in
national conventions.

[Footnote 15: Stanwood, _History of Presidential Elections_, pp.

[Sidenote: Nomination conventions.]
[Sidenote: The "primary."]
These conventions, as fully developed, are representative bodies
chosen for the specific purpose of nominating candidates and making
those declarations of principle and policy known as "platforms." Each
state is allowed twice as many delegates as it has electoral votes.
The delegates are chosen by local conventions in their several
states, viz., two for each congressional district by the party
convention of that district, and four for the whole state (called
delegates-at-large) by the state convention. As each convention is
composed of delegates from primaries, it is the composition of the
primaries which determines that of the local conventions, and it is
the composition of the local conventions which determines that of the
national.[16] The "primary" is the smallest nominating convention. It
stands in somewhat the same relation to the national convention as the
relation of a township or ward to the whole United States. A primary
is a little caucus of all the voters of one party who live within the
bounds of the township or ward. It differs in composition from the
town-meeting in that all its members belong to one party. It has two
duties: one is to nominate candidates for the local offices of the
township or ward; the other is to choose delegates to the county or
district convention. The primary, as its name indicates, is a primary
and not a representative assembly. The party voters in a township or
ward are usually not too numerous to meet together, and all ought to
attend such meetings, though in practice too many people stay away. By
the representative system, through various grades of convention, the
wishes and character of these countless little primaries are at
length expressed in the wishes and character of the national party
convention, and candidates for the presidency and vice-presidency are

[Footnote 16: Bryce, _American Commonwealth_, vol. ii. p. 145; see
also p. 52.]

[Sidenote: Qualifications for the presidency.]
The qualifications for the two offices are of course the same.
Foreign-born citizens are not eligible, though this restriction did
not include such as were citizens of the United States at the time
when the Constitution was adopted. The candidate must have reached the
age of thirty-five, and must have been fourteen years a resident of
the United States.

[Sidenote: The term of office]
The president's term of office is four years. The Constitution says
nothing about his re-election, and there is no written law to prevent
his being re-elected a dozen times. But Washington, after serving two
terms, refused to accept the office a third time. Jefferson in 1808
was "earnestly besought by many and influential bodies of citizens to
become a candidate for a third term;" [17] and had he consented there
is scarcely a doubt that he would have been elected. His refusal
established a custom which has never been infringed, though there were
persons in 1876 and again in 1880 who wished to secure a third term
for Grant.

[Footnote 17: Morse's _Jefferson_, p. 318.]

[Sidenote: Powers and duties of the President]
The president is commander-in-chief of the military and naval forces
of the United States, and of the militia of the several states when
actually engaged in the service of the United States; and he has the
royal prerogative of granting reprieves and pardons for offences
against the United States, except in cases of impeachment.[18]

[Footnote 18: See above, p. 221.]

He can make treaties with foreign powers, but they must be confirmed
by a two thirds vote of the Senate. He appoints ministers to foreign
countries, consuls, and the greater federal officers, such as the
heads of executive departments and judges of the Supreme Court, and
all these appointments are subject to confirmation by the Senate. He
also appoints a vast number of inferior officers, such as postmasters
and revenue collectors, without the participation of the Senate. When
vacancies occur during the recess of the Senate, he may fill them by
granting commissions to expire at the end of the next session. He
commissions all federal officers. He receives foreign ministers. He
may summon either or both houses of Congress to an extra session, and
if the two houses disagree with regard to the time of adjournment, he
may adjourn them to such time as he thinks best, but of course not
beyond the day fixed for the beginning of the next regular session.

[Sidenote: The President's message.]
The president must from time to time make a report to Congress on the
state of affairs in the country and suggest such a line of policy or
such special measures as may seem good to him. This report has taken
the form of an annual written message. Washington and Adams began
their administrations by addressing Congress in a speech, to which
Congress replied; but it suited the opposite party to discover in this
an imitation of the British practice of opening Parliament with
a speech from the sovereign. It was accordingly stigmatized as
"monarchical," and Jefferson (though without formally alleging any
such reason) set the example, which has been followed ever since,
of addressing Congress in a written message.[19] Besides this annual
message, the president may at any time send in a special message
relating to matters which in his opinion require immediate attention.

[Footnote 19: Jefferson, moreover, was a powerful writer and a poor

The effectiveness of a president's message depends of course on the
character of the president and the general features of the political
situation. That separation between the executive and legislative
departments, which is one of the most distinctive features of civil
government in the United States, tends to prevent the development of
leadership. An English prime minister's policy, so long as he remains
in office, must be that of the House of Commons; power and responsibility
are concentrated. An able president may virtually direct the policy of
his party in Congress, but he often has a majority against him in one
house and sometimes in both at once. Thus in dividing power we divide
and weaken responsibility. To this point I have already alluded as
illustrated in our state governments.[20]

[Footnote 20: The English method, however, would probably not work
well in this country, and might prove to be a source of great and
complicated dangers. See above, p. 169.]

[Sidenote: Executive departments]
[Sidenote: The cabinet]
The Constitution made no specific provisions for the creation of
executive departments, but left the matter to Congress. At the
beginning of Washington's administration three secretaryships were
created,--those of state, treasury, and war; and an attorney-general
was appointed. Afterward the department of the navy was separated
from that of war, the postmaster-general was made a member of the
administration, and as lately as 1849 the department of the interior
was organized. The heads of these departments are the president's
advisers, but they have as a body no recognized legal existence or
authority. They hold their meetings in a room at the president's
executive mansion, the White House, but no record is kept of their
proceedings and the president is not bound to heed their advice. This
body has always been called the "Cabinet," after the English usage. It
is like the English cabinet in being composed of heads of executive
departments and in being, as a body, unknown to the law; in other
respects the difference is very great. The English cabinet is the
executive committee of the House of Commons, and exercises a guiding
and directing influence upon legislation. The position of the president is
not at all like that of the prime minister; it is more like that of
the English sovereign, though the latter has not nearly so much power
as the president; and the American cabinet in some respects resembles
the English privy council, though it cannot make ordinances.

[Sidenote: The secretary of state.]
The secretary of state ranks first among our cabinet officers. He is
often called our prime minister or "premier," but there could not be
a more absurd use of language. In order to make an American personage
corresponding to the English prime minister we must first go to the
House of Representatives, take its committee of ways and means and
its committee on appropriations, and unite them into one committee of
finance; then we must take the chairman of this committee, give him
the power of dissolving the House and ordering a new election, and
make him master of all the executive departments, while at the
same time we strip from the president all real control over the
administration. This exalted finance-chairman would be much like the
First Lord of the Treasury, commonly called the prime minister. This
illustration shows how wide the divergence has become between our
system and that of Great Britain.

Our secretary of state is our minister of foreign affairs, and is the
only officer who is authorized to communicate with other governments in
the name of the president. He is at the head of the diplomatic and
consular service, issuing the instructions to our ministers abroad, and
he takes a leading part in the negotiation of treaties. To these
ministerial duties he adds some that are more characteristic of his
title of secretary. He keeps the national archives, and superintends the
publication of laws, treaties, and proclamations; and he is the keeper
of the great seal of the United States.

[Sidenote: Diplomatic and consular service.]
Our foreign relations are cared for in foreign countries by two distinct
classes of officials: ministers and consuls. The former represent the
United States government in a diplomatic capacity; the latter have
nothing to do with diplomacy or politics, but look after our commercial
interests in foreign countries. Consuls exercise a protective care over
seamen, and perform various duties for Americans abroad. They can take
testimony and administer estates. In some non-Christian countries, such
as China, Japan, and Turkey, they have jurisdiction over criminal cases
in which Americans are concerned. Formerly our ministers abroad were of
only three grades: (1) "envoys extraordinary and ministers
plenipotentiary;" (2) "ministers resident;" (3) _charges d'affaires_.
The first two are accredited by the president to the head of government
of the countries to which they are sent; the third are accredited by the
secretary of state to the minister of foreign affairs in the countries
to which they are sent. We still retain these grades, which correspond
to the lower grades of the diplomatic service in European countries.
Until lately we had no highest grade answering to that of "ambassador,"
perhaps because when our diplomatic service was organized the United
States did not yet rank among first-rate powers, and could not expect to
receive ambassadors. Great powers, like France and Germany, send
ambassadors to each other, and envoys to inferior powers, like Denmark
or Greece or Guatemala. When we send envoys to the great powers, we rank
ourselves along with inferior powers; and diplomatic etiquette as a rule
obliges the great powers to send to us the same grade of minister that
we send to them. There were found to be some practical inconveniences
about this, so that in 1892 the highest grade was adopted and our
ministers to Great Britain and France were made ambassadors.

[Sidenote: The secretary of the treasury.]
The cabinet officer second in rank and in some respects first in
importance is the secretary of the treasury. He conducts the financial
business of the government, superintends the collection of revenue,
and gives warrants for the payment of moneys from the treasury. He
also superintends the coinage, the national banks, the custom-houses,
the coast-survey and lighthouse system, the marine hospitals, and
life-saving service.[21] He sends reports to Congress, and suggests
such measures as seem good to him. Since the Civil War his most
weighty business has been the management of the national debt. He
is aided by two assistant secretaries, six auditors, a register, a
comptroller, a solicitor, a director of the mint, commissioner of
internal revenue, chiefs of the bureau of statistics and bureau of
engraving and printing, etc. The business of the treasury department
is enormous, and no part of our government has been more faithfully
administered. Since 1789 the treasury has disbursed more than seven
billions of dollars without one serious defalcation. No man directly
interested in trade or commerce can be appointed secretary of the
treasury, and the department has almost always been managed by "men of
small incomes bred either to politics or the legal profession." [22]

[Footnote 21: Many of these details concerning the executive
departments are admirably summarized, and with more fullness
than comports with the design of the present work, in Thorpe's
_Government of the People of the United States_, pp. 183-193.]

[Footnote 22: Schouler, _Hist. of the U.S._, vol. i. p. 95.]

[Sidenote: War and navy.]
The war and navy departments need no special description here. The
former is divided into ten and the latter into eight bureaus.
The naval department, among many duties, has charge of the naval
observatory at Washington and publishes the nautical almanac.

[Sidenote: Interior.]
The department of the interior conducts a vast and various business,
as is shown by the designations of its eight bureaus, which deal with
public lands, Indian affairs, pensions, patents, education (chiefly in
the way of gathering statistics and reporting upon school affairs),
agriculture, public documents, and the census. In 1889 the bureau of
agriculture was organized as a separate department. The weather bureau
forms a branch of the department of agriculture.

[Sidenote: Postmaster-general and attorney-general.]
The departments of the postmaster-general and attorney-general need
no special description. The latter was organized in 1870 into the
department of justice. The attorney-general is the president's legal
adviser, and represents the United States in all law-suits to which
the United States is a party. He is aided by a solicitor-general and
other subordinate offices.


1. Speak (1) of the president's share in legislation; (2) of his
relation to the executive department, and (3) of the origin
of his title.

2. The electoral college:--

a. The method of electing the president a perplexing question.
b. The constitution of the electoral college, with illustrations.
c. Qualifications for serving as an elector.
d. The method of choosing electors.
e. The time of choosing electors.
f. When and where the electors vote.
g. The number and disposition of the certificates of their
h. The declaration of the result.

3. What was the method of voting in the electoral college before
1804? Illustrate the working of this method in 1796 and 1800.

4. The amendment of 1804:--

a. The ballots of the electors.
b. The duty of the House if no candidate for the presidency
receives a majority of the electoral votes.
c. The duty of the Senate if no candidate for the vice-presidency
receives a majority of the electoral votes.
d. Illustrations of the working of this amendment in 1825
and 1837.

5. The electoral commission of 1877:--

a. A difficulty not foreseen.
b. Conflicting returns in 1877.
c. The plan of arbitration adopted.

6. The presidential succession:--

a. The office of vice-president.
b. The act of 1791.
c. The possibility of a lapse of the presidency.
d. The possibility of an unfair political overthrow.
e. The act of 1886.

7. Compare the original purpose of the electoral college with
the fulfillment of that purpose.

8. Explain the transition from a divided electoral vote in a state
to a solid electoral vote.

9. Show how a minority of the people may elect a president.
Who have been elected by minorities?

10. What is the advantage of the electoral system over a direct
popular vote?

11. Methods of nominating candidates for the presidency and
vice-presidency before 1832:--

a. The absence of constitutional and legislative requirements.

b. Presidents not nominated.
c. Nominations by congressional caucuses.
d. Nominations by state legislatures.
e. Nominations by local conventions.

12. Nominations by national conventions in 1832 and since:--

a. The nature of a national convention.
b. The platform.
c. The number of delegates from a state, and their election.
d. The relation of the "primaries" to district, state, and
national conventions.
e. The nature of the primary.
f. Its two duties.
g. The duty of the voter to attend the primaries.

13. The presidency:--
a. Qualifications for the office.
b. The term of office.

14. Powers and duties of the president:--
a. As a commander-in-chief.
b. In respect to reprieves and pardons.
c. In respect to treaties with foreign powers.
d. In respect to the appointment of federal officers.
e. In respect to summoning and adjourning Congress.
f. In respect to reporting the state of affairs in the country
to Congress.

15. The president's message:--
a. The course of Washington and Adams.
b. The example of Jefferson.
c. The effectiveness of the message.
d. Power and responsibility in the English system.

e. Power and
responsibility in the American system.

16. Executive departments:--
a. The departments under Washington.
b. Later additions to the departments.
c. The "Cabinet."
d. The resemblance between the English cabinet and our own.
e. The difference between the English cabinet and our own.

17. The secretary of state:--
a. Is he a prime minister?
b. What would be necessary to make an American personage
correspond to an English prime minister?
c. What are the ministerial duties of the secretary of state?
d. What other duties has he more characteristic of his title?

18. Our diplomatic and consular service:--
a. The distinction between ministers and consuls.
b. Three grades of ministers.
c. The persons to whom the three grades are accredited.
d. The grade of ambassador.

19. The secretary of the treasury:--
a. His rank and importance.
b. His various duties.
c. His chief assistants.
d. The administration of the treasury department since 1789.

20. The duties of the remaining cabinet officers:--
a. Of the secretary of war.
b. Of the secretary of the navy.
c. Of the secretary of the interior.
d. Of the postmaster-general.
e. Of the attorney-general.

Section 4. _The Nation and the States._

We have left our Federal Convention sitting a good while at
Philadelphia, while we have thus undertaken to give a coherent account
of our national executive organization, which has in great part grown
up since 1789 with the growth of the nation. Observe how wisely the
Constitution confines itself to a clear sketch of fundamentals, and
leaves as much as possible to be developed by circumstances. In this
feature lies partly the flexible strength, the adaptableness, of our
Federal Constitution. That strength lies partly also in the excellent
partition of powers between the federal government and the several

[Sidenote: Difference between confederation and federal union.]
We have already remarked upon the vastness of the functions retained
by the states. At the same time the powers granted to Congress have
proved sufficient to bind the states together into a union that is
more than a mere confederation. From 1776 to 1789 the United States
_were_ a confederation; after 1789 it was a federal nation. The
passage from plural to singular was accomplished, although it took
some people a good while to realize the fact. The German language
has a neat way of distinguishing between a loose confederation and a
federal union. It calls the former a _Staatenbund_ and the latter
a _Bundesstaat_. So in English, if we liked, we might call the
confederation a _Band-of-States_ and the federal union a _Banded-State_.
There are two points especially in our Constitution which transformed
our country from a Band-of-States into a Banded-State.

[Sidenote: Powers granted to Congress.]
The first was the creation of a federal House of Representatives, thus
securing for Congress the power to lay and collect taxes, duties,
imposts, and excises, to pay the debts and provide for the common
welfare of the United States. Other powers are naturally attached to
this,--such as the power to borrow money on the credit of the United
States; to regulate foreign and domestic commerce; to coin money
and fix the standard of weights and measures; to provide for
the punishment of counterfeiters; to establish post-offices and
post-roads; to issue copyrights and patents; to define and punish
felonies committed on the high seas, and offences against the law of
nations; to declare war, grant letters of marque and reprisal, and
make rules concerning captures on land and water; to raise and
support an army and navy, and to make rules for the regulation of
the land and naval forces; to provide for calling out the militia
to suppress insurrections and repel invasions, and to command this
militia while actually employed in the service of the United States.
The several states, however, train their own militia and appoint
the officers. Congress may also establish a uniform rule of
naturalization, and uniform laws on the subject of bankruptcies. It
also exercises exclusive control over the District of Columbia,[23]
as the seat of the national government, and over forts, magazines,
arsenals, dockyards, and other needful buildings, which it erects
within the several states upon land purchased for such purposes with
the consent of the state legislature.

[Footnote 23: Ceded to the United States by Maryland and Virginia.]

[Sidenote: The "Elastic Clause."]
Congress is also empowered "to make all laws which shall be necessary
and proper for carrying into execution the foregoing powers and all
other powers vested by this Constitution in the government of the
United States, or in any department or office thereof." This may be
called the Elastic Clause of the Constitution; it has undergone a
good deal of stretching for one purpose and another, and, as we shall
presently see, it was a profound disagreement in the interpretation of
this clause that after 1789 divided the American people into two great
political parties.

[Sidenote: Powers denied to the states.]
[Sidenote: Paper currency.]
The national authority of Congress is further sharply defined by the
express denial of sundry powers to the several states. These we have
already enumerated.[24] There was an especial reason for prohibiting
the states from issuing bills of credit, or making anything but gold
and silver coin a tender in payment of debts. During the years 1785
and 1786 a paper money craze ran through the country; most of the
states issued paper notes, and passed laws obliging their citizens to
receive them in payment of debts. Now a paper dollar is not money, it
is only the government's promise to pay a dollar. As long as you can
send it to the treasury and get a gold dollar in exchange, it is worth
a dollar. It is this exchangeableness that makes it worth a dollar.
When government makes the paper dollar note a "legal tender." i.e.,
when it refuses to give you the gold dollar and makes you take its
note instead, the note soon ceases to be worth a dollar. You would
rather have the gold than the note, for the mere fact that government
refuses to give the gold shows that it is in financial difficulties.
So the note's value is sure to fall, and if the government is in
serious difficulty, it falls very far, and as it falls it takes more
of it to buy things. Prices go up. There was a time (1864) during our
Civil War when a paper dollar was worth only forty cents and a barrel
of flour cost $23. But that was nothing to the year 1780, when the
paper dollar issued by the Continental Congress was worth only a mill,
and flour was sold in Boston for $1,575 a barrel! When the different
states tried to make paper money, it made confusion worse confounded,
for the states refused to take each other's money, and this helped to
lower its value. In some states the value of the paper dollar fell in
less than a year to twelve or fifteen cents. At such times there is
always great demoralization and suffering, especially among the poorer
people; and with all the experience of the past to teach us, it may
now be held to be little less than a criminal act for a government,
under any circumstances, to make its paper notes a legal tender. The
excuse for the Continental Congress was that it was not completely a
government and seemed to have no alternative, but there is no doubt
that the paper currency damaged the country much more than the arms of
the enemy by land or sea. The feeling was so strong about it in the
Federal Convention that the prohibition came near being extended to
the national government, but the question was unfortunately left

[Footnote 24: See above, p.175]

[Footnote 25: See my _Critical Period of American History_, pp.
168-186, 273-276.]

[Sidenote: Powers denied to Congress.]
[Sidenote: Bills of attainder.]
Some express prohibitions were laid upon the national government. Duties
may be laid upon imports but not upon exports; this wise restriction was
a special concession to South. Carolina, which feared the effect of an
export duty upon rice and indigo. Duties and excises must be uniform
throughout the country, and no commercial preference can be shown to one
state over another; absolute free trade is the rule between the states.
A census must be taken every ten years in order to adjust the
representation, and no direct tax can be imposed except according to the
census. No money can be drawn from the treasury except "in consequence
of appropriations made by law," and accounts must be regularly kept and
published. The privilege of the writ of _habeas corpus_ cannot be
suspended except "when, in case of rebellion or invasion, the public
safety may require it;" and "no bill of attainder, or _ex post facto_
law," can be passed. A bill of attainder is a special legislative act by
which a person may be condemned to death, or to outlawry and banishment,
without the opportunity of defending himself which he would have in a
court of law. "No evidence is necessarily adduced to support it," [26] and
in former times, especially in the reign of Henry VIII., it was a
formidable engine for perpetrating judicial murders. Bills of attainder
long ago ceased to be employed in England, and the process was abolished
by statute in 1870.

[Footnote 26: Taswell-Langmead, _English Constitutional History_,
p. 385.]

[Sidenote: Intercitizenship.]
No title of nobility can be granted by the United States, and no federal
officer can accept a present, office, or title from a foreign state
without the consent of Congress. "No religious test shall ever be
required as a qualification to any office or public trust under the
United States." Full faith and credit must be given in each state to the
public acts and records, and to the judicial proceedings of every other
state; and it is left for Congress to determine the manner in which such
acts and proceedings shall be proved or certified. The citizens of each
state are "entitled to all privileges and immunities of citizens in the
several states." There is mutual extradition of criminals, and, as a
concession to the southern states it was provided that fugitive slaves
should be surrendered to their masters. The United States guarantees to
every state a republican form of government, it protects each state
against invasion; and on application from the legislature of a state, or
from the executive when the legislature cannot be convened, it lends a
hand in suppressing insurrection.

[Sidenote: Mode of making amendments.]
Amendments to the Constitution may at any time be proposed in
pursuance of a two thirds vote in both houses of Congress, or by a
convention called at the request of the legislatures of two thirds of
the states. The amendments are not in force until ratified by three-fourths
of the states, either through their legislatures or through
special conventions, according to the preference of Congress. This
makes it difficult to change the Constitution, as it ought to be; but
it leaves it possible to introduce changes that are very obviously
desirable. The Articles of Confederation could not be amended except
by a unanimous vote of the states; and this made their amendment
almost impossible.

After assuming all debts contracted and engagements made by the United
States before its adoption, the Constitution goes on to declare itself
the supreme law of the land. By it, and by the laws and treaties made
under it, the judges in every state are bound, in spite of anything
contrary in the constitution or laws of any state.


1. In what two features of the Constitution does its strength
largely lie?

2. Distinguish between the United States as a confederation and the
United States as a federal union. How does the German language bring out
the distinction?

3. What was the first important factor in transforming our
country from a Band-of-States to a Banded-State?

4. The powers granted to Congress:--
a. Over taxes, money, and commerce.
b. Over postal affairs, and the rights of inventors and authors.
c. Over certain crimes.
d. Over war and military matters.
e. Over naturalization and bankruptcy.
f. Over the District of Columbia and other places.
g. The "elastic clause" and its interpretation.

5. The powers denied to the states:--
a. An enumeration of these powers.
b. The prohibition of bills of credit, in particular.
c. The paper money craze of 1785 and 1786.
d. Paper money as a "legal tender."
e. The depreciation of paper money during the Civil War.
f. The depreciation of the Continental currency in 1780.
g. The demoralization caused by the states making paper money.
h. The lesson of experience.

6. Prohibitions upon the national government:--
a. The imposition of duties and taxes.
b. The payment of money.
c. The writ of _habeas corpus_.
d. _Ex post facto_ laws.
e. Bills of attainder.
f. Titles and presents.

7. Duties of the states to one another:--
a. In respect to public acts and records, and judicial proceedings.
b. In respect to the privileges of citizens.
c. In respect to fugitives from justice.

8. What is the duty of the United States to every state in
respect (1) to form of government, (2) invasion, and (3)

9. Amendments to the Constitution:--
a. Two methods of proposing amendments.
b. Two methods of ratifying amendments,
c. The difficulty of making amendments.
d. Amendment of the Articles of Confederation.

10. What is meant by the Constitution's declaring itself the
supreme law of the land?

Section 5. _The Federal Judiciary_.

[Sidenote: Need for a federal judiciary.]
The creation of a federal judiciary was the second principal feature in
the Constitution, which transformed our country from a loose
confederation into a federal nation, from a _Band-of-States_ into a
_Banded-State_. We have seen that the American people were already
somewhat familiar with the method of testing the constitutionality of a
law by getting the matter brought before the courts.[27] In the case of
a conflict between state law and federal law, the only practicable
peaceful solution is that which is reached through a judicial decision.
The federal authority also needs the machinery of courts in order to
enforce its own decrees.

[Footnote 27: See above p. 194.]

[Sidenote: Federal courts and judges.]
[Sidenote: District attorneys and marshals.]
The federal judiciary consists of a supreme court, circuit courts, and
district courts.[28] At present the supreme court consists of a chief
justice and eight associate justices. It holds annual sessions in the
city of Washington, beginning on the second Monday of October. Each of
these nine judges is also presiding judge of a circuit court. The area
of the United States, not including the territories, is divided into
nine circuits, and in each circuit the presiding judge is assisted
by special circuit judges. The circuits are divided into districts,
fifty-six in all, and in each of these there is a special district
judge. The districts never cross state lines. Sometimes a
state is one district, but populous states with much business are
divided into two or even three districts. "The circuit courts sit
in the several districts of each circuit successively, and the law
requires that each justice of the supreme court shall sit in each
district of his circuit at least once every two years." [29] District
judges are not confined to their own districts; they may upon occasion
exchange districts as ministers exchange pulpits. A district judge
may, if need be, act as a circuit judge, as a major may command a
regiment. All federal judges are appointed by the president, with the
consent of the Senate, to serve during good behaviour. Each district
has its _district attorney_, whose business is to prosecute
offenders against the federal laws and to conduct civil cases in
which the national government is either plaintiff or defendant. Each
district has also its marshal, who has the same functions under the
federal court as the sheriff under the state court. The procedure of
the federal court usually follows that of the courts of the state in
which it is sitting.

[Footnote 28: See the second note on p.278.]

[Footnote 29: See Wilson, _The State_, p. 554. I have closely
followed, though, with much abridgment, the excellent description of
our federal judiciary, pp. 555-561.]

[Sidenote: The federal jurisdiction.]
The federal jurisdiction covers two classes of cases: (1) those
which come before it "_because of the nature of the questions
involved_: for instance, admiralty and maritime cases, navigable
waters being within the exclusive jurisdiction of the federal
authorities, and cases arising out of the Constitution, laws, or
treaties of the United States or out of conflicting grants made by
different states"; (2) those which come before it "_because of the
nature of the parties to the suit_," such as cases affecting the
ministers of foreign powers or suits between citizens of different

The division of jurisdiction between the upper and lower federal
courts is determined chiefly by the size and importance of the cases.
In cases where a state or a foreign minister is a party the supreme
court has original jurisdiction, in other cases it has appellate
jurisdiction, and "any case which involves the interpretation of the
Constitution can be taken to the supreme court, however small the sum
in dispute." If a law of any state or of the United States is decided
by the supreme court to be in violation of the Constitution, it
instantly becomes void and of no effect. In this supreme exercise
of jurisdiction, our highest federal tribunal is unlike any other
tribunal known to history. The supreme court is the most original of
all American institutions. It is peculiarly American, and for its
exalted character and priceless services it is an institution of which
Americans may well be proud.


1. What was the second important factor in transforming our country
from a Band-of-States to a Banded-State?

2. Why was a federal judiciary deemed necessary?

3. The organization of the federal judiciary:--
a. The supreme court and its sessions.
b. The circuit courts.
c. The district courts.
d. Exchanges of service.
e. Appointment of judges.
f. The United States district attorney.
g. The United States marshal.

4. The jurisdiction of the federal courts:--
a. Cases because of the nature of the questions involved.
b. Cases because of the nature of the parties to the suit.
c. The division of jurisdiction between the upper and the lower
d. Wherein the supreme court is the most original of American

Section 6. _Territorial Government._

[Sidenote: The Northwest Territory.]
[Sidenote: The Ordinance of 1787.]
The Constitution provided for the admission of new states to the
Union, but it does not allow a state to be formed within another
state. A state cannot "be formed by the junction of two or more
states, or parts of states, without the consent of the legislatures of
the states concerned as well as of the Congress." Shortly before the
making of the Constitution, the United States had been endowed for the
first time with a public domain. The territory northwest of the Ohio
River had been claimed, on the strength of old grants and charters, by
Massachusetts, Connecticut, New York, and Virginia. In 1777 Maryland
refused to sign the Articles of Confederation until these states
should agree to cede their claims to the United States, and thus in
1784 the federal government came into possession of a magnificent
territory, out of which five great states--Ohio, Indiana, Illinois,
Michigan, and Wisconsin--have since been made. While the Federal
Convention was sitting at Philadelphia, the Continental Congress at
New York was doing almost its last and one of its greatest pieces
of work in framing the Ordinance of 1787 for the organization and
government of this newly acquired territory. The ordinance created a
territorial government with governor and two-chambered legislature,
courts, magistrates, and militia. Complete civil and religious liberty
was guaranteed, negro slavery was prohibited, and provision was made
for free schools.[30]

[Footnote 30: The manner in which provision should be made for these
schools had been pointed out two years before in the land-ordinance of
1785, as heretofore explained. See above, p. 86.]

[Sidenote: Other territories and their government.]
In 1803 the enormous territory known as Louisiana, comprising
everything (except Texas) between the Mississippi River and the crest
of the Rocky Mountains, was purchased from France. A claim upon the
Oregon territory was soon afterward made by discovery and exploration,
and finally settled in 1846 by treaty with Great Britain. In 1848 by
conquest and in 1853 by purchase the remaining Pacific lands were
acquired from Mexico. All of this vast region has been at some time
under territorial government. As for Texas, on the other hand, it
has never been a territory. Texas revolted from Mexico in 1836 and
remained an independent state until 1845, when it was admitted to
the Union. Territorial government has generally passed through three
stages: first, there are governors and judges appointed by the
president; then as population increases, there is added a legislature
chosen by the people and empowered to make laws subject to
confirmation by Congress; finally, entire legislative independence is
granted. The territory is then ripe for admission to the Union as a


1. What is the constitutional provision for admitting new states?

2. What states claimed the territory northwest of the Ohio river? On
what did they base their claims?

3. Why was this territory ceded to the general government?

4. What states have since been made out of this territory?

5. What was the Ordinance of 1787?

6. What were the principal provisions of this ordinance?

7. Give an account of the Louisiana purchase?

8. Give an account of the acquisition of the Oregon territory.

9. Give an account of the acquisition of the remaining Pacific lands.

10. How came Texas to belong to the United States?

11. How much of the public domain has been at some time under
territorial government?

12. Through what three stages has territorial government usually

Section 7. _Ratification and Amendments._

[Sidenote: Concessions to the South.]
Thus the work of the Ordinance of 1787 was in a certain sense
supplementary to the work of framing the Constitution. When the latter
instrument was completed, it was provided that "the ratifications
of the conventions of nine states shall be sufficient for the
establishment of this Constitution between the states so ratifying the
same." The Constitution was then laid before the Continental Congress,
which submitted it to the states. In one state after another,
conventions were held, and at length the Constitution was ratified.
There was much opposition to it, because it seemed to create a strange
and untried form of government which might develop into a
tyranny. There was a fear that the federal power might crush out
self-government in the states. This dread was felt in all parts of the
country. Besides this, there was some sectional opposition between
North and South, and in Virginia there was a party in favour of a
separate southern confederacy. But South Carolina and Georgia were won
over by the concessions in the Constitution to slavery, and especially
a provision that the importation of slaves from Africa should not
be prohibited until 1808. By winning South Carolina and Georgia the
formation of a "solid South" was prevented.

[Sidenote: Bill of Rights proposed.]
The first states to adopt the Constitution were Delaware,
Pennsylvania, New Jersey, Georgia, and Connecticut, with slight
opposition, except in Pennsylvania. Next came Massachusetts, where the
convention was very large, the discussion very long, and the action
in one sense critical. One chief source of dissatisfaction was the
absence of a sufficiently explicit Bill of Rights, and to meet this
difficulty, Massachusetts ratified the Constitution, but proposed
amendments, and this course was followed by other states. Maryland and
South Carolina came next, and New Hampshire made the ninth. Virginia
and New York then ratified by very narrow majorities and after
prolonged discussion. North Carolina did not come in until 1789, and
Rhode Island not until 1790.

[Sidenote: The first ten amendments.]

In September, 1789, the first ten amendments were proposed by
Congress, and in December, 1791, they were declared in force. Their
provisions are similar to those of the English Bill of Rights, enacted
in 1689,[31] but are much more full and explicit. They provide for
freedom of speech and of the press, the free exercise of religion, the
right of the people to assemble and petition Congress for a redress
of grievances, their right to bear arms, and to be secure against
unreasonable searches and seizures. The quartering of soldiers is
guarded, general search-warrants are prohibited, jury trial is
guaranteed, and the taking of private property for public use without
due compensation, as well as excessive fines and bail and the
infliction of "cruel and unusual punishment" are forbidden. Congress
is prohibited from establishing any form of religion.

[Footnote 31: See above, p. 190. This is further elucidated in
Appendixes B and D.]

Finally, it is declared that "the enumeration of certain rights shall
not be construed to deny or disparage others retained by the people,"
and that "the powers not granted to the United States by the
Constitution, nor prohibited by it to the states, are reserved to the
states respectively, or to the people."


1. What provision did the Constitution make for its own ratification?

2. What was the general method of ratification in the states?

3. On what general grounds did the opposition to the Constitution seem
to be based?

4. By what feature in the Constitution was the support of South
Carolina and Georgia assured? Why was this support deemed peculiarly

5. What five states ratified the Constitution with little or no

6. What was the objection of Massachusetts and some other states to
the Constitution? What course, therefore, did they adopt?

7. What three states after Massachusetts by their ratification made
the adoption of the Constitution secure?

8. What four states subsequently gave in their support?

9. Give an account of the adoption of the first ten amendments.

10. For what do these amendments provide?

11. What powers are reserved to the states?

Section 8. _A Few Words about Politics._

[Sidenote: Federal taxation.]
A chief source of the opposition to the new federal government was the
dread of federal taxation. People who found it hard to pay their town,
county, and state taxes felt that it would be ruinous to have to pay
still another kind of tax. In the mere fact of federal taxation,
therefore, they were inclined to see tyranny. With people in such a
mood it was necessary to proceed cautiously in devising measures of
federal taxation.

[Sidenote: Excise.]
This was well understood by our first secretary of the treasury,
Alexander Hamilton, and in the course of his administration of the
treasury he was once roughly reminded of it. The two methods of federal
taxation adopted at his suggestion were duties on imports and excise on
a few domestic products, such as whiskey and tobacco. The excise, being
a tax which people could see and feel, was very unpopular, and in 1794
the opposition to it in western Pennsylvania grew into the famous
"Whiskey Insurrection," against which President Washington thought it
prudent to send an army of 16,000 men. This formidable display of
federal power suppressed the insurrection without bloodshed.

[Sidenote: Tariff.]
Nowhere was there any such violent opposition to Hamilton's scheme of
custom-house duties on imported goods. People had always been familiar
with such duties. In the colonial times they had been levied by the
British government without calling forth resistance until Charles
Townshend made them the vehicle of a dangerous attack upon American
self-government.[32] After the Declaration of Independence, custom-house
duties were levied by the state governments and the proceeds were paid
into the treasuries of the several states. Before 1789, much trouble had
arisen from oppressive tariff-laws enacted by some of the states against
others. By taking away from the states the power of taxing imports, the
new Constitution removed this source of irritation. It became possible
to lighten the burden of custom-house duties, while by turning the full
stream of them into the federal treasury an abundant national revenue
was secured at once. Thus this part of Hamilton's policy met with
general approval. The tariff has always been our favourite device for
obtaining a national revenue. During our Civil War, indeed, the
national, government resorted extensively to direct taxation, chiefly in
the form of revenue stamps, though it also put a tax upon
billiard-tables, pianos, gold watches, and all sorts of things. But
after the return of peace these unusual taxes were one after another
discontinued, and since then our national revenue has been raised, as in
Hamilton's time, from duties on imports and excise on a few domestic
products, chiefly tobacco and distilled liquors.

[Footnote 32: See my _War of Independence_, pp. 58-83; and my
_History of the United States, for Schools_, pp. 192-203.]

[Sidenote: Origin of American political parties.]
Hamilton's measures as secretary of the treasury embodied an entire
system of public policy, and the opposition to them resulted in the
formation of the two political parties into which, under one name or
another, the American people have at most times been divided. Hamilton's
opponents, led by Jefferson, objected to his principal measures that
they assumed powers in the national government which were not granted to
it by the Constitution. Hamilton then fell back upon the Elastic
Clause[33] of the Constitution, and maintained that such powers were
_implied_ in it. Jefferson held that this doctrine of "implied powers"
stretched the Elastic Clause too far. He held that the Elastic Clause
ought to be construed strictly and narrowly; Hamilton held that
it ought to be construed loosely and liberally. Hence the names
"strict-constructionist" and "loose-constructionist," which mark perhaps
the most profound and abiding antagonism in the history of American

[Footnote [33]: Article I, section viii, clause 18; see above, p. 245.]

Practically all will admit that the Elastic Clause, if construed
strictly, ought not to be construed _too_ narrowly; and, if construed
liberally, ought not to be construed _too_ loosely. Neither party has
been consistent in applying its principles, but in the main we can call
Hamilton the founder of the Federalist party, which has had for its
successors the National Republicans of 1828, the Whigs of 1833 to 1852,
and the Republicans of 1854 to the present time; while we can call
Jefferson the founder of the party which called itself Republican from
about 1792 to about 1828, and since then has been known as the
Democratic party. This is rather a rough description in view of the real
complication of the historical facts, but it is an approximation to the

[Sidenote: Tariff, Internal Improvements, and National Bank.]
It is not my purpose here to give a sketch of the history of American
parties. Such a sketch, if given in due relative proportion, would
double the size of this little book, of which the main purpose is to
treat of civil government in the United States with reference to its
_origins_. But it may here be said in general that the practical
questions which have divided the two great parties have been concerned
with the powers of the national government as to (1) the _Tariff_; (2)
the making of roads, improving rivers and harbours, etc., under the
general head of _Internal Improvements_; and (3) the establishment of a
_National Bank_, with the national government as partner holding shares
in it and taking a leading part in the direction of its affairs. On the
question of such a national bank the Democratic party achieved a
complete and decisive victory under President Tyler. On the question of
internal improvements the opposite party still holds the ground, but
most of its details have been settled by the great development of the
powers of private enterprise during the past sixty years, and it is not
at present a "burning question." The question of the tariff, however,
remains to-day as a "burning question," but it is no longer argued on
grounds of constitutional law, but on grounds of political economy.
Hamilton's construction of the Elastic Clause has to this extent
prevailed, and mainly for the reason that a liberal construction of that
clause was needed in order to give the national government enough power
to restrict the spread of slavery and suppress the great rebellion of
which slavery was the exciting cause.

[Sidenote: Civil service reform.]
Another political question, more important, if possible, than that of
the Tariff, is to-day the question of the reform of the Civil Service;
but it is not avowedly made a party question. Twenty years ago both
parties laughed at it; now both try to treat it with a show of respect
and to render unto it lip-homage; and the control of the immediate
political future probably lies with the party which treats it most
seriously. It is a question that was not distinctly foreseen in the days
of Hamilton and Jefferson, when the Constitution was made and adopted;
otherwise, one is inclined to believe, the framers of the Constitution
would have had something to say about it. The question as to the Civil
Service arises from the fact that the president has the power of
appointing a vast number of petty officials, chiefly postmasters and
officials concerned with the collection of the federal revenue. Such
officials have properly nothing to do with politics; they are simply the
agents or clerks or servants of the national government in conducting
its business; and if the business of the national government is to be
managed on such ordinary principles of prudence as prevail in the
management of private business, such servants ought to be selected for
personal merit and retained for life or during good behaviour. It did
not occur to our earlier presidents to regard the management of the
public business in any other light than this.

[Sidenote: Origin of the "spoils system."]
But as early as the beginning of the present century a vicious system
was growing up in New York and Pennsylvania. In those states the
appointive offices came to be used as bribes or as rewards for partisan
services. By securing votes for a successful candidate, a man with
little in his pocket and nothing in particular to do could obtain some
office with a comfortable salary. It would be given him as a reward, and
some other man, perhaps more competent than himself, would have to be
turned out in order to make room for him. A more effective method of
driving good citizens "out of politics" could hardly be devised. It
called to the front a large class of men of coarse moral fibre who
greatly preferred the excitement of speculating in politics to earning
an honest living by some ordinary humdrum business. The civil service of
these states was seriously damaged in quality, politics degenerated into
a wild scramble for offices, salaries were paid to men who did little or
no public service in return, and thus the line which separates taxation
from robbery was often crossed.

[Sidenote: "Rotation in Office."]
[Sidenote: The "spoils system" made national]
About the same time there grew up an idea that there is something
especially democratic, and therefore meritorious, about "rotation in
office." Government offices were regarded as plums at which every one
ought to be allowed a chance to take a bite. The way was prepared in
1820 by W.H. Crawford, of Georgia, who succeeded in getting the law
enacted that limits the tenure of office for postmasters, revenue
collectors, and other servants of the federal government to four years.
The importance of this measure was not understood, and it excited very
little discussion at the time. The next presidential election which
resulted in a change of party was that of Jackson in 1828, and then the
methods of New York and Pennsylvania were applied on a national scale.
Jackson cherished the absurd belief that the administration of his
predecessor Adams had been corrupt, and he turned men out of office with
a keen zest. During the forty years between Washington's first
inauguration and Jackson's the total number of removals from office was
74, and out of this number 5 were defaulters. During the first year of
Jackson's administration the number of changes made in the civil
service was about 2,000. [34] Such was the abrupt inauguration upon a
national scale of the so-called "spoils system." The phrase originated
with W. L. Marcy, of New York, who in a speech in the senate in 1831

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