The American republic and its government; an analysis of the government of the United States, with a consideration of its fundamental principles and of its relations to the states and territories

Front matter

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THE LIBRARY

Preface

oJT is the purpose of this book and of its companion vol-

u3 ume, Political Parties and Party Problems in the United

^.States, to attempt an addition to the works designed for the

Scencouragement of the study of American politics. This

Hvolume has to do with the original principles of the Re-

"* public as announced by the Fathers in the struggle for

Independence, and with the principal institutions and

organs of government created by the Constitution.

The greater part of this field has been traversed by many writers, and its principal subjects are treated of by all text-books on Civil Government. Most of the text-books in Civics, however, have been, at least until very recently, class-room hand-books dealing very briefly and y disconnectedly with a large variety of topics, and de- ^ signed for young students in the first year of the high £ school, or below. Mr. Bryce's great work, The American Commonwealth, has done much during the last decade for the promotion of political education among American students and readers; and in our institutions of higher learning, where elective courses of considerable length are offered in political science and the study of the American Government, it has been indispensable, as it will probably continue to be in its special field for a generation to come. I wish to acknowledge my great indebtedness to §§Mr. Bryce for the constant use of his work in the classoroom as well as in the preparation of this work; and if this ^volume should do anything toward promoting a larger

£3

* i

IV

Preface use of The American Commonwealth and books of its kind — there are none of its rank — among high schools, academies, and colleges, it will not have been published in vain.

With a view to this larger study of American politics, and as leading up to it, it seems to me necessary to recognize that between the field for the elementary text-books in Civics and that of the advanced classes in the universities that call for special and extensive study in works like that of Mr. Bryce, there is an intermediate field. My effort has been to fill this gap, to provide an intermediate book for advanced courses in high schools or for elementary courses in the colleges. It is believed that in this field of Civics there are classes of students well prepared for more advanced work than is ordinarily pursued in high schools, whose interest will be more easily and effectively aroused and sustained by a somewhat elaborate discussion of the more important subjects in the study of the American Government and its principles. For this purpose it seems better to present more extensive treatment of fewer subjects than to reconsider the great variety of miscellaneous topics usually contained in the books on elementary Civics.

It is one of the first purposes of public education in America to induce the youth of the land to understand the Constitution of their country, the principles that underlie it, how it has grown, the perils that have threatened it, the wisdom and courage that have sustained it and made it great. This is to be learned chiefly from our country's history. It is a field of reading and study that should be inviting to all American citizens. It is my hope that this book may in some degree, for the sake of a higher citizenship, promote the study of history, politics, and the problems of government.

Indiana University, Bloomington, Indiana, January 20, 1903.

Chapter I

THE great text-book for the study of politics is history. He who would understand the principles of our Government and the institutions that have been built upon them must look to the history out of which these principles and institutions have emerged. Without a knowledge of the past we cannot understand the present. In 1763, after a half-century of conflict, the English had triumphed over the French in America. Under the treaties of that year closing the Seven Years' Causesofthe War, the French retired from the North American American continent, and the English rule was established in Canada and in the territory east of the Mississippi. To meet the increased burden of an increased debt and of enlarged possessions, the English Ministry under George III. resolved upon three measures which Mr. Lecky, the great English historian, has said produced the American Revolution :

1. The enforcement of the old trade laws.

2. The quartering permanently in America of a portion of the British army.

3. The raising by Parliamentary taxation in America of a part of the money necessary for the army's support.

The old trade laws, which had been passed chiefly in the interest of the English trading companies, were ob- ^ r, , w noxious and vexatious to the Colonies, and

The English

commercial they had been allowed to fall into disuse. By

Code Violates h j h Colonies were not allowed to

Sound

principles of establish manufactures for themselves, nor to Government. carry on a profitable trade with other countries. The English commercial code thus violated the fundamental principle of just government, that laws should be in the interest of the people who are bound to obey them. The attempt to revive and strictly to enforce these obsolete laws thus became a contributing cause of the American Revolution : and in so far as the Americans resisted these laws, they did so as claiming a right to freer trade and freer industry ; in short, as asserting their right to regulate their manufactures and commerce in their own interest.

The dread of a standing army had been a powerful influence with the common people of England ever since . their struggle against the tyranny of the royal

Opposition to oo o J J J

a standing power in the days of the Commons' revolt Army" against the Stuart kings, 1642-1649. Espe-

cially was this feeling strong among those English Puritans and Cavaliers who "in an unconquerable spirit had effected settlements in the distant and inhospitable wilds of America. " They held with a stubborn and undaunted spirit that no army should be quartered upon them except by the consent of their own legislatures. Every State or colony — that is, every organized political community like Massachusetts, Virginia, or Rhode Island, they declared, "must judge for itself the number of armed men which they may safely trust among them, of whom they are to consist, and under what restrictions they are to be laid." ' Reliance on their own militia and opposition to a standing army larger than was necessary to preserve

1 Jefferson's Summary View of the Rights of the Colonies.

the peace involved one of the early principles of the Republic.

But it was especially the controversy raised by the new Imperial policy of taxation that led to the dismemberment of the British Empire and to the independence of America. In the long discussion between Great Britain and the Colonies touching Imperial power and colonial rights, from the passage of the Stamp Act in 1765, till the Declaration of Independence proclaimed a new nation to the world, the colonists stood out for the following rights and principles :

I. The right of constitutional government. — Great Britain claimed, while the colonists denied, that Parliament could exercise an unlimited power over them, "to bind them in all cases whatsoever." The Wnstitucolonists had no voice, and from the nature of tional

,1 u 1 • ,1 1 i . Government.

the case could nave none, in the body proposing so to govern them. The great remedial measures guaranteeing the ancient rights of subjects, such as the Great Charter, the Habeas Corpus, the Bill of Rights, — that is, the law, customs, precedents, and constitutional statutes which made up the British Constitution, — were in full force in the Colonies. By this Constitution Parliament must be bound. The colonists held that their charters also conferred and defined certain constitutional rights and limited the powers of government over them. English law and liberty, they claimed, knew no such thing as absolute, unlimited power, without constitutional limitations and restraints. The colonists contended not for new rights but for old ones, not for innovations or a new constitution, but for their old charters and the old Constitution with its privileges and guarantees. They had lost none of their rights by migration. Whatever were the constitutional rights of Englishmen at home were the constitutional rights of Englishmen in the Colonies. With our fathers, wherever they went throughout the world, their Constitution and their law followed their flag.

" All we have of freedom, all we used or know, This our fathers bought for us, long and long ago; Ancient Right unnoticed as the breath we draw, Leave to live by no man's leave underneath the law." '

2. The right of local self-government. — To the colonists

this was a necessary corollary to the rights of constitu-

, tional government. The foundation of English

The Right of ° .

Local self- liberty and of all free government is the right Government. of a people to participate in their legislative council. This meant, in 1776, the free and exclusive power of legislation in the colonial assemblies, — in all cases of taxation and internal policy.2 The colonists held that, while matters of Imperial concern, and especially the commercial system, should remain under the control of the Imperial Parliament, each Colony should regulate for itself its own local affairs ; that the colonial assemblies were complete and independent legislatures for all matters of internal concern. Each Colony was "a people." In the exercise of this right of local self-government,

" the Colonial legislatures with the entire assent of the Home Government assumed the right of modifying almost every portion of the common and of the statute law, with a view to their special circumstances. It became recognized that the Colonies might legislate for themselves as they pleased, provided they left untouched their allegiance to the Crown and acts of the English Parliament." 3

In internal matters they claimed therefore not to be under the jurisdiction of the British Parliament, and that they did not hold their political existence at the will of that body; that the rights — original and chartered and

1 Kipling, The King.

5 Resolution of the Continental Congress, October 24, 1774.

3 Lecky, American Revohition, p. 39.

guaranteed — of one part of the Empire should not be sacrificed to the desire and power of another part, and that one legislature, like that of Great Britain, should not be allowed to infringe upon the rights and liberties of another legislature, like that of Virginia or of New York. Therefore, it was held, when Parliament attempted to suspend the legislature of New York for refusing compliance with the Mutiny Act of 1765, quartering troops in America, that "one free and independent legislature had taken upon itself to suspend the power of another, free and independent as itself."1 It was the right of every State to govern itself within its own local rights and limits. The colonists declared the taxing and coercive acts of Parliament void, because by the principles of the English Constitution and by colonial charters Parliament had no right to exercise such authority within these Colonies. For these reasons the suspension of their legislatures was held to be an act of usurpation and tyranny, and in case of continued suspension the powers of these bodies reverted to the people ; and the colonists believed that to make their judges and governors independent of their assemblies, and dependent merely on the royal will and favor for their tenures and their salaries, was an interference with the right of self-government. States' rights, as against Imperial or central authority, in all matters of domestic concern, was an original and primitive principle in the history of the United States.

3. The right of trial by a jury of the vicinage. — The courts of admiralty had been empowered to try violations of the Stamp Act and other acts enforcing the TheRightof trade laws. In these courts a jury trial was Trial by denied. And, also, as a means of meeting colonial resistance, an old law of the time of Henry VIII. was revived which empowered a colonial governor to bring to England for trial persons accused of treason outside of

1 Jefferson's Summary View of the Rights of America.

England, "transporting them beyond seas to be tried for pretended offenses." '

"By this act," says Burke, " almost all that is substantial and beneficial in a trial by jury is taken away from a subject in the Colonies. To try a man under that act is, in effect, to condemn him unheard. A person is brought hither in the dungeon of a ship's hold; thence he is vomited into a dungeon on land, loaded with irons, unfurnished with money, unsupported by friends, three thousand miles from all means of calling upon or confronting evidence, where no one local circumstance that tends to detect perjury can possibly be judged of, — such a person may be executed according to form, but he can never be tried according to justice." 2

To this violation of one of the dearest rights of Englishmen, the colonists set themselves in determined resistance. 4. The right of free assembly and the right of petition. — The right of petition was repeatedly exercised without The Rights restraint, though the colonial petitions were as of Free repeatedly slighted and disregarded. The right

Assembly r , 1 1 r 1 • •

and of of assembly and free discussion, a right formid-

Petition. a^ie to tyrants only," was threatened by the Massachusetts Act of 1774, by which the charter of that Colony was radically changed, and the right of free discussion in the old Town meeting was seriously abridged. Hereafter none but election meetings were to be held and no subject was to be discussed except by permission of the royal governor. Such an act brought consternation to every Colony in America. It was such coercive laws that brought the colonists into union to resist what they considered a series of unconstitutional measures that were annihilating their chartered liberties, abolishing their most valuable laws, and altering fundamentally the forms of their government.

1 Declaration of Independence. 2 Letter to the Sheriffs of Bristol.

5. The right of self-taxation : "No taxation without representation." '—The Stamp Act of 1765 was an attempt to impose by parliamentary power a direct The Right of domestic tax upon the Colonies. The Imperial Taxation Government had previously exacted some pay- "NoTaxa-

. 1 1 r t'on without

ments at the customs houses upon the trade ot Repre-

the Colonies. But this was not done for pur- sentation." poses of revenue. It was done to regulate the trade of the Empire, to enable the British trade to surpass that of the Dutch or the Spanish or the French; and, as "an instrument of empire," since it was taxation for commerce and not for revenue, the colonists had been willing to bear this burden for the sake of the common Imperial interests. The colonists called this an external tax. Such measures were looked upon as trade regulations External rather than as measures of taxation. When it Taxation, was desired that the Colonies should contribute to the extraordinary expenses of the Empire in money or troops for a foreign war, requisitions were applied for. That is, the king, through the person of his royal governor in the Colony, asked for the supplies, and the Colony through its representative assembly gave and granted the substance of the colonists. This was the

The Consti-

old system of securing supplies to the Crown tutionai

to which Burke pleaded that the Parliament system of

r 111 Requisitions.

should return, and from which, as he thought, it ought never to have departed. This was the old practice on which Pitt based his constitutional theory that taxation was no part of the legislative power ; that taxes were a free gift of the people to be voted, or refused, by the representatives of the people who were expected to pay the tax. This was the old custom — which with Englishmen was the lazv — that was sustained by so many precedents in English history. On four memorable occasions, by four great and notable statutes, the English people had recognized the American contention that there should be no taxation without representation :

In 121 jr, by Magna Charta, it was agreed as a principle of the Constitution that no aid (tax) should be imposed English except by the common council of the nation, Precedents and an estates, or classes, that were to pay

Sustain the , , . , , , .

American were to be summoned, in the persons of their contention, representatives, to the national council.

In 1297, by a statute concerning taxation without consent,1 the principle of no taxation without representation was again recognized and confirmed.

In 1628, in the celebrated Petition of Right, this statute was quoted and the Charter was again confirmed, and it was again declared that no "aid should be levied, except by the good will and assent of the national representatives."

Again, by the glorious Revolution of 1688, this principle was reaffirmed on one of the most solemn occasions of the nation's history.

It was clearly the law and the usage that taxation without consent was illegal ; that taxes were to be imposed only by the representatives of those who were required to pay them. By struggle after struggle this right to be consulted as to when and how much they should pay into the king's treasury had been wrought out by the English people. It was their experience that this was the safe, constitutional mode of taxation. This right was again and again encroached upon and denied by the royal power, but it was as often recovered and vindicated. And each time the practice was reasserted it became more firmly embedded as a principle in the national conduct and Constitution. In speaking of the Stamp Act, with this experience of the nation in view, Mr. Lecky says:

" The measure did unquestionably infringe upon a principle

1 De Tallagio non Concedendo, 1297, which the English race both at home and abroad have always regarded with a peculiar jealousy. The doctrine that taxation and representation are in free nations insepa-

. . Taxation and

rably connected, that constitutional government is Representaclosely connected with the rights of property, and tion Go

1 1 • • i j i_ Together.

that no people can be legitimately taxed except by themselves or their representatives lay at the very root of the English conception of political liberty." '

In opposition to the new taxing policy of Parliament involved in the Stamp Act, the colonists expressed this old English principle substantially as follows :

' ' That it was essential to the freedom of a people, and the undoubted right of Englishmen, that no taxes be imposed on them but with their own consent, given personally

' ° x Statement of

or by their representatives. the stamp

" That the Colonies could not be represented in Act Congress, Parliament and that their only representatives were persons chosen therein by themselves, and that no taxes ever have been or can be imposed on them but by their representative legislatures.

" That all supplies to the Crown being free gifts of the people, it is unreasonable and inconsistent with the principles and spirit of the English Constitution for the people of Great Britain to grant the property of the colonists. ' ' 2

This is not to be thought of as a theory which, once thought out a priori by some great thinker or statesman, had then been promulgated for the nation and for the future. Our fathers did not deal with theories in that sense. But the maxim, ' ' No taxation without representation," is to be looked upon as an attempt to deduce from their history and to formulate what had been a long-standing practice. It was a description of what had been, so far as they and their estates were concerned. It did

1 American Revolution, p. 75.

2 Resolutions of the Stamp Act Congress, 1765.

io The American Republic

not relate to the rights of individuals or of minorities. It was not intended to assert that "a man's property is absolutely his own, and that what he has acquired cannot be taken from him without his consent " ; although such language was used by the advocates of the colonial cause both in England and America.1 All men wish not to be taxed, and very few men give their consent to all their taxes. If no tax could be collected except what every man willingly consented to, society would be reduced to anarchy. Nor was it intended to assert by the phrase, "No taxation without representation," that all persons who paid taxes should be represented in the legislature that imposes the tax. The doctrine was formulated to vindicate the right of one class or estate in the realm against another, or to vindicate the right of one body politic against another claiming superior authority. However, it may be fairly claimed that the logical inference is that equal rights in taxation of individuals within a state should prevail. For, when we say that taxation and representation should go together, we clearly assert that all who pay taxes to the state should have a voice in determining their assessment and distribution.

The controversy over these issues led to the Declaration of Independence, July 4, 1776. In this great document, which Buckle calls "that noble Declaration which ought to be hung up in the nursery of every king and blazoned on the porch of every royal palace," our Fathers announced their theory of government to the world. The memorable words in which they then announced their principles of government should be stored in the memory of every citizen of America:

" When in the course of human events it becomes necessary for one people to dissolve the political bands that connect them

1 Pitt on American Taxation. Samuel Adams : Massachusetts Circular Letter, 1768.

with another and to assume among the nations of the world that just and equal station to which the laws of nature and of nature's God entitle them, a decent regard to the opinion of mankind requires that they should make known the causes leading to the separation. We hold these truths to be self-evident: That all men are created equal; that they are endowed by their Creator with certain inalienable rights, among which are life, liberty, and the pursuit of happiness; that to secure these rights governments are instituted among men deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to institute a new government, laying its foundations in such principles and organizing its powers in such form as to them shall seem most likely to effect their safety and happiness." '

This Declaration teaches :

i. That men have rights. Among these are life, liberty, and the pursuit of happiness.

2. That governments are instituted for the benefit of the governed, — to secure and protect these rights of men.

3. That these governments "derive their just powers from the consent of the governed."

4. That whenever any government becomes destructive of these rights, it is the right of the people to overthrow it ; and when the people have overthrown a perverted government, it is their right and duty to establish a new government on whatever principles and in whatever form will ensure the public safety and happiness.

5. That, under law and government, and in the protection of these rights, "all men are created equal."

These principles were announced as self-evident, — as if they had only to be stated in order to be accepted. Yet, perhaps, no political platform of equal length in all human history has been the subject of greater controversy and dispute; and no statements have been more

1 Preamble of the Declaration of Independence.

persistently - misunderstood and misconstrued. Some, false to these principles, have sought to bring them into disrepute by a false and literal interpretation. Others, lacking an intelligent conception of their meaning, have been too easily disposed to reject them as untenable. It is important that the children should know what the Fathers believed, and they should be ready, if need be, to defend those beliefs. In order to do this and to repel the constant attacks upon the famous Declaration of the Fathers and to expose the frequent perversions and repudiations of their principles, it is necessary to know what our Fathers really believed.

In approaching this subject it is important to bear in mind that in politics, in the practical business of governing, there are no political policies and programs suitable for universal application. A proposition in politics depends for its truth upon the sense in which it is intended, or, often, on the circumstance or relation to which it applies. We may assert that a republic is the best form of government, or that manhood suffrage should prevail, that the majority should rule, and that self-government should be established among men. These things may be true for us and for many other peoples. Our fathers believed that some of these things were true for them and for their children ; but no one has ever maintained, and the Fathers of this Republic should never be accused of maintaining, that these statements were universally true for all peoples, in all times, and under all circumstances. This is not to say that there are no political principles that are fixed and abiding, or that a nation's principles should depend upon its circumstances. Politics is a part of man's life and in man's life there are principles that are divine, that proceed from the very nature of God and man, and that are, therefore, absolute, eternal, and unchangeable. Times may change, and men may change with them, but principles do not change. In spirit the principles of our fathers abide, and they are the same to-day as when they were announced in 1 776. ' ' The letter killeth, the spirit maketh alive. " It is not the form but the spirit of truth that is eternal. It is the political spirit that controlled the political lives of the Fathers that we must seek. This is quite consistent with the recognition of the fact that political doctrines are to be studied in relation to their times ; that political doctrines are relative ; Poiiticai that in order to see whether they are true or false Doctrines

,. . , ,. ,1 are Relative.

it is necessary to see them in relation to the doctrines that they oppose ; that the science of government, if it be not ' ' the science of circumstances, ' ' as Burke has denned it, is at least an historical science — The science that is, its premises have their foundations in °^°°t^ experience. The political principles that our Historical fathers announced were not spun out of their heads ; they were not evolved from the inner consciousness of some philosopher shut up in a closet : but their principles came out of their lives, were evolved from their experience and from the circumstances in which they were placed. They must, therefore, be studied and fairly interpreted in relation to this experience and history. History teaches us how these principles came to be, and if we wish to know their meaning we must know them in their development and in their cause. It is only in this way that we can come to know the sense and spirit of a body of principles. To attempt to express one's principles in a maxim and to offer this maxim as of universal application, is not a scientific or sensible process in government. To affirm a political proposition absolutely; to assert positively, once for all, for illustration, that "governments derive their just powers from the consent of the governed," would be as unwise as to deny this absolutely. Not absolute maxims, but the principle underlying the maxim is what we should seek.

Bearing these things in mind, we may come to the articles of political faith which our fathers announced and not hesitate to accept them when truly and fairly interpreted.

I. Men Jiave rights. — It would be unprofitable here to go into a discussion of the theory of natural rights. Our Men have fathers thought very little of pure theory in Rights. politics and we should theorize as little as they.

It is sufficient to ask, — What were the two opposing practices on this subject which confronted our fathers as the outcome of their historical experience? On what opposing policies did they base their doctrine?

(i) One view insisted upon the absolute authority of the sovereign, declaring that no rights can exist in opposition Absolutism to the sovereign's will.

vs. Rights of (2) The other insisted upon certain natural rights of individuals which the sovereign can never legally infringe.

For more than a century men had been in contention over these theories. The defenders and apologists of the royal power in England had taught that all men were born under the necessity of submitting to an absolute kingly government; that he that had the power had the right ; whether he came to his place by election, inheritance, usurpation, or any other way, the persons and estates of his people were subject to his will, Divine and none should oppose that will. To fight

Rights of against that will was to fight against God,