The changing order : essays on government, monopoly, and education

Preface

THESE essays are bi-products of the writer's work as head of the United States Department of Justice during the four years from March 5, 1909, to March 5, 19 13. That period was instinct with great problems. New conceptions of the relation of government to industrial organization were asserting themselves; new theories of government rinding expression. The old order was changing. The epochal litigation between the government and great industrial combinations culminated in a series of decisions rendered in cases argued during that period in the Federal Supreme Court. By these decisions, the supremacy of law and government over monopoly was established. During the same period, the laws regulating common carriers in interstate commerce were radically amended, and these laws, and great questions arising out of them, also were brought to the Supreme Court for construction and exposition. The admission of the territories of New Mexico and Arizona into the Union gave rise to the discussion at the National Capitol of profound modifications in constitutional government as it had been theretofore understood and practised. These changes were being embodied in new constitutions of some of the western States. Their iv Preface

inclusion in the constitutions of the new States, presented to the Congress for approval, compelled a consideration of the meaning of the words "republican form of government," as used in the Constitution of the United States.

The following essays, which originally were prepared for delivery as addresses on special occasions, reflect the conflict of ideas involved in the discussion of these questions — problems which go to the very roots of civilized government. It is because of the vital nature of the problems discussed, rather than of any especial merit, literary or otherwise, in the essays, that I venture to hope that what I have written may be of more than ephemeral interest. Constant requests for copies of some of these papers have encouraged me to publish this collection. For while the old order indeed changeth, yet I verily believe there are some fundamental truths concerning government which have stood the test of time, and which cannot be ignored without unhappy consequence. What some of those principles are, I have endeavored to show in the following pages.

G. W. W.

New York,

Contents

CHAPTER PAGE

I. — The Progress of Law i

II. — The State and the Nation . . 17

II

THE administration of Federal justice is the most vital agency of the national government. The system of Federal government under which a separate and distinct sovereignty erects its agencies and expounds, administers, and enforces its laws within the States, independently of those of the States, also in theory sovereign, except where and to the extent that they have voluntarily parted with some attribute of sovereignty, is at once the admiration and the despair of foreign students of our institutions, and is often a source of perplexity to ourselves.

The Constitution of the United States and laws and treaties made pursuant to its authority are, it is agreed, the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding. But ever since the foundation of the Federal government a constant pressure has developed, first one way, then another; State against nation, nation against State,

1 The substance of an address delivered at the opening of a new Federal building in Cleveland, Ohio, March 20, 191 1. 2 17 to magnify or minimize the powers granted to the Federal government by the Constitution.

During the last decade or two there has been a growing tendency in the States to call on the national government for many things which are properly within the functions and duties of the States, but which, through the extension of certain powers granted to Congress, may be also brought within the scope of Federal regulation. v This tendency has been so marked, that at times the States seem to have abdicated an important part of their ordinary police powers, and to have sought to escape their natural responsibilities by devolving them upon the general government.

The principles regulating the respective powers of State and Federal government are clearly stated by Mr. Justice Harlan in delivering the judgment of the Supreme Court in a very recent case.

There are, he says, certain fundamental principles which prior decisions, to which he refers in his opinion, recognize, and —

which are not open to dispute. . . . Briefly stated, those principles are: That the Government created by the Federal Constitution is one of enumerated powers, and can not, by any of its agencies, exercise an authority not granted by that instrument, either in express words or by necessary implication; that a power may be implied when necessary to give effect to a power expressly granted; that while the Constitution of the United States and the laws enacted in pursuance thereof, together with any treaties made under the authority of the United States, constitute the supreme law of the land, a State of the Union may exercise all such governmental authority as is consistent with its own constitution, and not in conflict with the Federal Constitution; that such a power in the State, generally referred to as its police power, is not granted by or derived from the Federal Constitution but exists independently of it, by reason of its never having been surrendered by the State to the General Government; that among the powers of the State, not surrendered — which power therefore remains with the State — is the power to so regulate the relative rights and duties of all within its jurisdiction, so as to guard the public morals, the public safety and the public health, as well as to promote the public convenience and the common good ; and that it is with the State to devise the means to be employed to such ends, taking care always that the means devised do not go beyond the necessities of the case, have some real or substantial relation to the objects to be accomplished, and are not inconsistent with its own constitution or the Constitution of the United States. 1

That these principles have not been always clearly perceived is illustrated by the history of the State of Ohio — not to mention that of other States.

In the Ordinance of July 13, 1787, providing for the government of the northwestern territory, certain articles were formulated as "articles of compact between the original States and the people and States in the said territory" for the purpose of

" extending the fundamental principles of civil and religious liberty, which form the basis wherein these republics, their laws, and constitution are erected; to fix and establish those principles as the basis of all laws, constitutions, and governments which forever hereafter shall be formed in the said territory." These articles, it was declared, should "forever remain unalterable, unless by common consent."

These articles in effect embodied those fundamental principles of civil liberty which have been the woof and fabric of Anglo-Saxon institutions since they were first set forth in Magna Chart a: principles which were also embodied in the first ten amendments to the Constitution of the United States, adopted in November, 1791.

The Ordinance further provided that —

The navigable waters leading into the Mississippi and St. Lawrence and the carrying places between the same shall be common highways and forever free as well to the inhabitants of the said territory as to the citizens of the United States and those of any other States that may be admitted into the confederacy, without any tax, impost, or duty therefor.

Freedom of trade and commerce was a matter of the utmost concern on the part of the great men who framed this Ordinance and the Constitution of the United States, and the Jay treaty of 1794 secured to the subjects of both Great Britain and the United States the right — freely to pass and repass by land or inland navigation into the respective territories and countries of the two parties on the continent of America (the country within the bounds of the Hudson Bay Co. only excepted), and to navigate all the lakes, rivers, and waters thereof, and freely to carry on trade and commerce with each other.

The Ordinance of 1787 also made provision for the erection of States out of the territory to which it applied, whenever any of such States should have 60,000 free inhabitants, provided the permanent constitution and State government which should be formed "shall be republican and in conformity to the principles contained in these articles."

That portion of the articles which dealt with the government of the territory, provided for the appointment of a court to consist of three judges, with common-law jurisdiction, and whose commissions should continue in force during good behavior. Among the provisions which were declared to be unalterable save by common consent was that —

The inhabitants of said Territory shall always be entitled to the benefits of the writ of habeas corpus and of the trial by jury, of a proportionate representation of the people in the legislature, and of judicial proceedings according to the course of the common law.

The principles of government embodied in the Federal Constitution, adopted in 1789, were a distribution of powers among three separate coordinate branches — legislative, executive, and judicial. The legislative power was to be exercised by representatives of the people, and senators representing the States, with the participation of the President, to the extent of recommending legislation and exercising a qualified veto over measures passed in Congress. The executive officers were to be chosen for definite terms, and during such terms were to be free from interference by either of the other branches of government, save when impeached for high crimes or misdemeanors; and the judicial power was to be exercised by judges holding office during good behavior and free from interference or control by the other branches of government. An independent judiciary was regarded by the framers of the Constitution as absolutely essential to the success of the government created by it.

Pursuant to the provisions of the Ordinance, a constitution was adopted, and the State of Ohio was admitted into the Union on March I, 1803. Those who prepared that constitution had before them as models and guides the Ordinance for the government of the northwestern territory, the Constitution of the United States, and the Jay treaty. But they were unable to grasp the wisdom embodied in those famous documents.

Rufus King, in his sketch of the history of Ohio, says of this constitution:

It was framed by men of little experience in matters of state, and under circumstances unfavorable to much forecast. With such a model of simplicity and strength before them as the national Constitution, which had just been formed, the wonder is that some of its ideas were not borrowed. It seems to have been studiously disregarded, and Ohio, as well as some States farther westward, which her emigrant sons, with filial regard, induced to follow her example, has suffered ever since from a weak form of government, made up in haste and apparently in mortal dread of Gov. St. Clair. . . . Briefly stated, it was a government which had no executive, a half-starved, shortlived judiciary, and a lopsided legislature. 1

The student of American history must constantly wonder at finding so often developed a hostile attitude toward the judiciary. Disputes which can only be settled by the arbitrament of independent and incorruptible judges constantly arise between citizens, between States, between a State and the nation. The existence of a standing body of judges — men of learning and character, withdrawn from the ordinary pursuits of business life, and independent of all influences which might warp their judgment and prevent them from reaching decisions based only upon the fair and unbiased consideration of the law as applied to the evidence in the case — would seem to be of such obvious advantage to every member of the community that no argument were needed to demonstrate it.

1 Ohio, by Rufus King. Houghton, Mifflin & Co., 1903.

Yet in the early history of Ohio, as in the later history of some of our present States and Territories, from time to time waves of feeling hostile to the judicial establishment arose, generally originating in the resentment of some class of the community to judicial decisions preventing that particular class from carrying out schemes for its own advantage, to the detriment of the rest of the community.

The latest manifestation of this spirit in constitutional provisions for the recall of judges by popular vote, is, in effect, the same as that which was resorted to in Ohio in 1809, as a means of punishing the Common- Pleas judges who had ruled that an act of the Legislature granting to jus^'ces of the peace jurisdiction to try suits for any amount not exceeding $50 without a jury, was a violation of the right of trial by jury secured by the Seventh Amendment to the Constitution of the United States, in all suits at common law where the value in controversy shall exceed twenty dollars.

Although this decision was affirmed by the Supreme Court of the State, an effort was made to impeach the judges who rendered it, and when this failed, resort was had, as Rufus King states in his history of Ohio, "toa more efficacious course" :

The term of office was seven years, and the term of seven years since the State constitution went into operation was just expiring. Most of the judges had been chosen much later, either as new appointments or to fill vacancies. It was resolved by the majority in both branches of the assembly that their terms of office must all be limited by the original term of those who had been first appointed. The three supreme judges, three president judges of the common pleas, all the associate judges of that court, more than a hundred in number, and all the justices of the peace, were discharged at a swoop. x

The history of Ohio furnishes no repetition of such an attack on the independence of the judiciary as this, but it was many years before the courts recovered from the effects of this blow to their independence. Not, indeed, until after the decision by the Supreme Court of Ohio, in 1887, that it was empowered and in duty bound to declare a law invalid if not passed in due constitutional form, did the judiciary of Ohio take the place which that branch of the government must occupy, in order that republican government as it was understood by the framers of the Constitution of the United States may be accomplished.

Ohio, in common with many of the other States, had her experience in resisting the supremacy of the Constitution of the United States and laws and treaties made in pursuance of it. In 18 19 she undertook to impose a tax on each of the two branches of the United States Bank, and Osborn, the auditor of state, summarily took from one of the branches a sum of money large enough to cover the tax on both. He was advised by counsel

x Ohio, Rufus King, p. 314.

that as the State could not be sued by the nation he was secure from Federal redress.

But the supremacy of the national government was declared, and the insufficiency of Osborn's defense demonstrated, in an opinion by Chief Justice Marshall, which is one of the great landmarks of constitutional law. The act of the Legislature of Ohio under which Osborn proceeded, was declared to be in conflict with the Federal Constitution and therefore void; consequently Osborn's act was not the act of the State; he was a mere trespasser, and as such amenable to the process of the Federal court. x

Representative republican government is founded upon a practical recognition of the fact that in a busy, prosperous community the average citizen can give but little time to the details of his government. He therefore joins with his fellowelectors in selecting representatives to frame the laws by which he is to be governed, and in choosing the principal officers who are to execute them. His life, liberty, and property are protected from undue invasion by either branch of the government by means of constitutional restrictions upon their powers; and by limiting the terms for which they are chosen, there is required of representatives and agents alike a periodical account of their stewardship. This system secures freedom from undue interference during the term of office, thus affording a reasonable time to work out any given

1 Osborn v. U. S. Bank, 9 Wheat., 938.

problem, and to submit it to the test of experience before it is either approved or condemned. The most beautiful work of the most skilled artisan presents a crude and unlovely appearance, promising anything but perfection, at some stage of its production, and if the capacity of its author and the value of the work were determined at that period, neither the artist nor the work could ever win approval.

Abuses of power occur under all forms of government. The representatives chosen to make laws for State or nation have not always been faithful to their trust. The greater importance of the national legislature, upon which the eyes of the nation are constantly turned, has, as a rule, preserved it from the corruption and the inefficiency of many of the State legislatures. The history of the latter has been too often a history of venality and stupidity. But is the remedy to be found in the overthrow of the whole system of representative government? If the head of a large commercial establishment should discover that his clerks and officials had disobeyed his instructions, stolen his money, and impaired his fortune, would he mend the case by undertaking to do all their work himself, or by so hampering his new employees with restrictions and penalties and threats of instant dismissal for apparent offenses, that their only certainty in not offending would lie in doing nothing? Can public business be carried on by a system based on distrust, any better than private business can be successfully so conducted? Is not the remedy to be found rather in greater care in the selection of agents and the more rigid enforcement of their responsibilities? Political and social reformers alike are prone to advocate the overthrow of a system rather than the more difficult task of selecting fit agents to carry on government. How can any man who gives the subject a moment's reflection view with indifference any interference with the dignity and independence of the judiciary?

What are judges but impartial arbitrators, to whom any one may be compelled at any moment to turn for protection of life, limb, or property? What will become of that protection if our system of government should subject him to the despoiling rage of the mob, when he asserts the supremacy of law in the face of unjust clamor? Who will be secure in life or property, if judges only can retain their places by consulting the passing fever of the crowd, instead of the laws of the land? A glib, cheap answer is made by the advocates of the destruction of representative government when objection is made to their schemes: "You do not trust the people," they say. On the contrary, it is they who do not trust the people. Their whole program is based on the assumption that the people are unfit or unable to choose honest and faithful representatives, and therefore that those whom they do select must be fettered with minute instructions, deprived of any freedom of action, subject to recall, and to be cast out a once if they do not photograph into instant action every passing wave of popular feeling which may be worked up as a result of misinformation or inflamed prejudice. Under such a system, the people abandon all self-restraint and the necessity of sober second thought, based on accurate information and thorough discussion, before condemning their servants. It would seem an affront to intelligent readers to suggest even the possibility of such a change in the nature of our governments, State or national, were it not that in some of the Western States and Territories such theories have already found expression in constitutions and laws; and even in our Eastern States, there are not lacking those who have seized upon those notions as a gospel which is to bring salvation as to a people sitting in darkness. .

Indeed, these ideas seem to have gained such currencyin some partsof the country , that oneis tempted to exclaim, in the language of James Russell Lowell :

Is this the country that we dreamed in youth, When wisdom and not numbers should have weight, Seed field of simpler manners, braver truth, Where shams should cease to dominate In household, church, and state?

But if we reflect on the history of our country, we must realize that its people are "the heirs of wise tradition's widening cautious rings," and that in the long run they never yet, as a nation, have proved unworthy of their birthright.

Ill

I ASSUME that when you invited me to be your guest this evening you expected me to talk to you about the relations of college men to public questions. As one busied in the tremendously important and equally absorbing business of government, I am greatly interested in meeting you who are coming out into the workaday world to assume your share of the duty and the privilege of making efficient the conduct of^our public affairs, municipal, State, and national.

To be truly efficient, a government must be administered honestly and wisely. How these results shall be accomplished, you and men like you should in large measure determine. If you do not play an important part in the solution of this problem, then, whatever proficiency you may have attained here in your studies, whatever prowess you may have displayed in athletic sports, you will have failed to realize the highest aim of university education.

1 Address at the annual banquet of The Daily Princetonian, Princeton, N. J., May i, 191 1.

I congratulate you on coming out into the world at this particular time in its history. Within your grasp is life, and life abundantly. In the words of the Psalmist, your feet are planted in a large room. The world is all before you, where to choose. When your fathers were graduated at the university thirty-odd years ago, the thoughts of the people were centered principally upon industrial and business activity. The railroads were opening up the great western country for development ; mining and manufacture were being stimulated by new inventions and increased facilities of transportation, leading to cheapened production and improved product; and the rapid progress in facilities of intercommunication of thought were bringing the ends of the earth into closer touch with each other. The surplus population of Europe poured into our country, and brawny arms from many lands developed our mines and carried on the work of our factories. Plenty was scattered over a smiling land. The way was open for every one. If the older communities were too crowded, there was room for all in the great West. Industry and enterprise and intelligence found ample scope; wealth was garnered in many fields. The power of cooperation and organization in the conduct of business has been applied during the past thirty years to an extent never before dreamed of. Men learned then how far-reaching a control over industry and commerce could be effected through organization. Commercial empires were formed. Great fortunes were amassed in the hands of a few, but prosperity came also to many. What wonder that materialism became rampant and that the golden calf was erected for worship in the market-places !

But the vision of truth and justice has never wholly failed before the eyes of the American people, and in the full flush of their highest prosperity they heard the voice of the national conscience reminding them that righteousness alone exalt eth a nation. In the period of their greatest material progress, they paused to consider whether their institutions were securing justice between man and man.

The laws of State and nation alike during this period of great industrial progress were molded to facilitate the conduct of business on a colossal scale. There was nothing more natural. They met the needs of the hour. True, they went beyond those needs, and, in so doing, they aroused the people to a recognition of the fact that they had gone too far. In the triumphal progress of expanding industry and accumulating wealth, the rights of individuals and of classes of individuals who had but an humble share in it were not always considered. Here and there occasional peaks of garnered riches rose high above the plain, and like the robber barons of the Rhineland, great masters of capital sat enthroned upon them. But their very height lifted them up where all men could see and begin to question how they came there, and whether it was for the common weal that such inequalities of condition should exist.

So to-day, the great question confronting you as you enter upon the drama of matured life is to find the means of maintaining the true balance between the freedom which the individual citizen must enjoy in order that he may justly prosper, and the protection of the mass of the people from unjust discrimination in favor of the few.

In a country whose government is based on manhood suffrage, any abuse can continue only until a majority of the people are convinced that it is wrong. Then there is bound to be a change. But whether or not the change proposed to remedy the evil is a wise one and will not result merely in jumping out of the frying-pan into the fire, depends upon whether or not the remedy is sufficiently discussed to be thoroughly understood. The first popular impulse to right a wrong often results in committing another wrong. It is in putting clearly before the people the nature of civic ills, and the character and effect of proposed remedies, that men who have had the benefit of systematic university training may best justify their advantages.

Public attention has been and now is focused on these wrong tendencies. Recognizing the existence of evils, two classes of remedies are presented. One class deals with forms of government and new rules of conduct, another class addresses itself to a consideration of the character of the men who make our laws and carry on our public affairs. It is characteristic of our race that we are more prone, in the face of civic ills, to the making of new laws than to securing a better class of public servants. We pass laws very much as the Chinese buy a paper prayer and hang it up to placate their gods. A common expression on many lips is "there ought to be a law about that." We are in truth a law-ridden people; and this tendency is encouraged and stimulated by those who seek popular favor by pointing to easy remedies for obvious ills. 'Not satisfied with the everswelling volume of statute laws, we are now urged to tinker with our constitutions. There is nothing new in this kind of demagoguery. Mommsen, writing of the Rome of Cato's time, says:

In reality these demagogues were the worst enemies of reform. While the reformers insisted above all things and in every direction on moral amendment, demagogism preferred to insist on the limitations of the powers of the government and the extension of those of the burgesses.

So in our own day, there is much clamorous advocacy of measures to limit the powers of those charged with the administration of our highly complicated government, and to increase the direct intervention of the public in the conduct of its operations.

The idea that a busy, prosperous, commercial people will, or can, make or administer laws better than representatives chosen from among the people for the purpose, is one that is almost as old as recorded history, and all recorded history proves its fallacy. But it is said that in the workings of representative government, representatives do not represent the people. I believe that to be a superficial comment. Representatives have and, being human, always will, from time to time fail in their duty ; but in the long run, our representative bodies must and do give expression to precisely what the matured thought t)f the majority of the people demands. They may not yield at once to a spasmodic and artificially stimulated emotion induced by one particular class of society for its own ends as against all other classes. God forbid that they should! But they are inevitably controlled in the long run by the deliberate thoughtout will of the people. Impatient reformers, desirous of securing the prestige of immediate success in the advocacy of their nostrums, chafe at delays. But you, who have had the advantage of learning the lessons of the past, will, I am confident, lend your influence to the maintenance of a system of government which protects the legitimate interests of a commercial people from destruction by the sudden gusts of popular passion. You will carefully examine existing laws and institutions before lending your aid to their overthrow. No system of law can be devised that automatically will work good. All laws must be administered by human agencies. The best human agencies can only be secured by attaching confidence and honor and dignity to the office. A few laws easily understood are of more value than a thousand laws impossible of comprehension. Remember the advice that Don Quixote gave to Sancho Panza for his guidance in the government of the island of Barataria:

Make not many proclamations; but those thou makest take care that they be good ones, and above all that they be observed and carried out; for proclamations that are not observed are the same as if they did not exist; nay, they encourage the idea that the prince who had the wisdom and authority to make them had not the power to enforce them; and laws that threaten and are not enforced come to be like the log, the king of the frogs, that frightened them at first, but that in time they despised and mounted upon.