Federal Usurpation (1908)

Franklin Pierce (1853-19XX)

CHAPTER 5
Congressional Usurpation

“The tyranny of the Legislature is really the danger most to be feared, and will continue to be so for many years to come. The tyranny of the executive power will come in its turn, but at a more distant period.”    Jefferson

“I know not how better to describe our form of government in a simple phrase than by calling it a government by the Chairmen of Standing Committees of Congress.”    Woodrow Wilson

“Every foreign observer has remarked how little real debate, in the European sense, takes place in the House of Representatives. The very habit of debate, the expectation of debate, the idea that debate is needed, have vanished except as regards questions of revenue and expenditure, because the center of gravity has shifted from the house to the committees.”    James Bryce

THERE is no more striking and significant fact in the public life of our country than the predominance in recent years of the United States Senate over the House of Representatives, the popular branch of Congress. Claiming to be more democratic than European countries, the whole trend and current in the United States recently has been toward the consolidation of power in the Senate and the President to the destruction of the equipoise of the checks and balances of our Constitution. The tendency of modern life during the last thirty years, outside of the German Empire and the United States, has been steadily toward increasing the power of the legislative body elected directly by the people.

The members of the French Senate are elected in each department in France by the electoral college composed of the deputies, the members of the general councils, the members of the special councils, and the delegates chosen by the councils and by the communes or towns. Each department in proportion to its population is entitled to from two to ten senators, who are elected for a term of nine years, one third retiring each three years. The legislative power of the Senate and Chamber of Deputies is the same except as to revenue bills, which are originated by the Chamber of Deputies in the same manner as provided by our Constitution. Notwithstanding that the French Senators are elected in very much the same way as in our own country, with a longer term of office, and with equal legislative powers, and would naturally be a more influential body than the Chamber of Deputies elected by the People, yet Mr. Lowell, in his admirable work on “Governments and Parties in Continental Europe,” says: “In reality it is by far the weaker body of the two, although it contains at least as much political ability and experience as the other House, and, indeed, has as much dignity, and is composed of as impressive a body of men as can be found in any legislative chamber the world over. The fact is that, according to the traditions of the parliamentary system, the cabinet is responsible only to the more popular branch of the legislature, and in all but one of the instances where the cabinet in France has resigned on an adverse vote of the Senate, the vote was rather an excuse for the withdrawal of a discredited ministry than the cause of its resignation.”95

The Italian Senate is composed of the princes of the royal family, of members appointed by the king for life, of bishops and high officials, civil and military and judicial, and of deputies who have served three terms or six years. It has the right to originate legislation except revenue measures, which must be first presented in the Chamber of Deputies. It has judicial functions, and sits as a court to try ministers impeached by the Chamber of Deputies, to try cases of high treason and attempts upon the safety of the state. Clothed as it is with legislative initiative like the Chamber of Deputies aside from revenue bills, its members being selected from the higher walks of life, one would expect it to be the more powerful. But Mr. Lowell says: “As a matter of fact, the Senate has very little real power, and is obliged to yield to the will of the Lower House.”96

In Switzerland the Council of States corresponds to the United States Senate, and its members are elected by the local legislature of each canton, while the members of the National Council are elected directly by the people. We see in Switzerland the exact copy in this respect of our own government. The members of the Council of States represent their cantons. The delegates in the National Council represent the people. The power and influence of the Council of States has steadily declined while the power of the National Council has steadily increased, and it is said that ambitious young Swiss seek it in preference to the Council of States. With us a term or terms in the House of Representatives is a stepping-stone to the Senate. In Switzerland a term or more in the Council of States is a stepping-stone to the National Council.

In like manner we might pass over each European country, with the exception of the German Empire, and find that for many years the Chamber whose members are elected directly by the people has been the governing body of the country, while the power of the upper house has been steadily waning. In the German Empire, however, the power of the Kaiser, as King of Prussia and Emperor of Germany, is practically consolidated with the power of the Bundesrath, which corresponds to our American Senate, and these united powers entirely overwhelm the Reichstag, or popular branch of the legislature. The German Emperor, like the President of the United States, selects his Chancellor and his ministers, and they are accountable to him only. Through the Bundesrath, in which the Kingdom of Prussia has a controlling influence and in which the Chancellor is all powerful, the German Emperor controls to a great extent the legislation of the German Empire. The conditions of Prussia and of the German Empire today are much more similar to those in the United States than those in any other country in the world. We need not call to the reader’s attention that Great Britain is ruled by its House of Commons, and that the House of Lords, while it occasionally refuses its assent to a bill, eventually gives way to the House of Commons.

The causes for the decay in power and prestige of our House of Representatives are easily ascertainable. Though its members are elected directly by the people it is one of the most undemocratic bodies in the world. For all practical purposes there is no House of Representatives. The Speaker and the Chairmen of Committees practically control all the legislation of the House, and control it by methods so arbitrary and despotic that they would not be tolerated even in Russia. The Constitution simply provides that the House shall choose its Speaker and other officers, but says nothing of their powers and duties. In legislative bodies of other countries, the speaker is selected without any reference to partisan bias, and he presides over the chamber with absolute impartiality. In our House of Representatives, however, he is selected because of his many years’ experience in the House, his knowledge of its rules, and his ability to use those rules and his place to further the political interests of his party. He appoints the members of sixty-two committees, among whom the legislation in the House is parceled out for examination. He selects the chairman also of each committee. If he knows what particular measures may be brought to the attention of the House, he is able to arrange the committee to which those measures will be referred so as to secure action in accordance with his own views of the subject under consideration.

Except when the friends of measures presented to the House of Representatives are allowed to be heard upon them, the committee meetings are secret. The House never knows, nor do the constituents of a member of Congress ever know, what his action in a committee was upon any particular bill; and if a member of the committee should disclose it in the open House, or anywhere else, it would be a matter of reproach. So we have sixty-two different committees, composed in greater part of about eleven members each, secretly passing upon the advisability of legislation. With no public discussion, with the seal of secrecy upon committee action, the whole matter of passing a public statute is unknown to the constituents of each representative, in fact, unknown to all the people of the United States.

Responsibility is absolutely impossible under such conditions, but general corruption is altogether probable. A great corporation, or combination of capital, seeking special legislation, would be unable to control a majority of the House of Representatives where the merits of the legislation were known and openly discussed. But a committee is easily controlled because its action is secret, and the constituency of a member would never know what his action had been. Occasionally such corporations can reach the chairman, who practically controls the action of his committee. If unable to control the chairman, it can influence two or three members of the committee, who, by what is known as “log rolling” with other members, can bring about the approval of an obnoxious bill.

The greatest benefit of open discussion of public business is the enlightenment of public opinion, but by this method of legislation the public is kept in ignorance of what occurs in the committee, and it comes to take little interest in legislation. Not even the representatives of the newspapers can ascertain what is taking place in these committees. With no public discussion of the merits of the bills, there is no public interest in their passage, and no opportunity whatever for public opinion to bring either commendation or condemnation to bear upon a bill.

Now let us observe the number of bills referred to these committees. Between the first Monday of December, 1905, and February 17, 1906, 15,000 bills and resolutions, covering every conceivable subject of legislation, were introduced into the House of Representatives and referred to the appropriate committees.97 Thirty thousand bills and resolutions were introduced into the House of Representatives in the Fifty-ninth Congress. Three hundred and seventy-five members of that House had little if any knowledge of any one of those 30,000 bills and resolutions before they were reported by the committee.

Now what opportunity have they to know anything about a proposed law after it is reported by the committee? The chairman of that committee is usually awarded one hour for the discussion of his bill. The chairman selects the members of the committee who are to speak upon the bill, and fixes the limit of time for each. He even has the power to determine whether an amendment may be offered. Within the time given to him he demands the previous question, and in the large majority of cases the bill is simply jammed through by a party vote which knows not and cares not for its effect upon the public welfare. Thousands of bills in recent years have been passed by the House of Representatives, of the contents of which the greater part of the members voting for them necessarily knew nothing.

The ablest men in the House are selected for the Ways and Means Committee, having charge of the raising of revenue, and for the fifteen or more committees having charge of appropriations. The appropriation bills are the most important bills passed in our day by the House of Representatives. To understand fully the wisdom of an appropriation, the members must be thoroughly versed in the technical details of those departments of government asking for the appropriations. Thus the attention of a large number of the ablest members of the House is continually diverted from the consideration of general legislation by the absorbing obligations of the committees on appropriations.

The ordinary bill, outside of appropriations, if reported to the House without objection in the committee, is usually passed without any opposition. The larger part of all the legislation is made practically by the committees in secret so far as the House is concerned. On January 11, 1907, the House had 700 private pension bills on its daily calendar, and 628 of them were passed in one hour and thirty-five minutes. On, one day in January, 1905, 459 bills were passed in the House of Representatives in eighteen minutes. In 1899 the River and Harbor Bill, carrying appropriations amounting to $30,000,000, was passed in the House of Representatives after a debate of ninety minutes.98 The whole governmental policy of our country toward our dependencies, including our relations to Cuba, was determined by the amendments to the Army Appropriation Bill of 1901, measures to which the House gave up but a single hour of discussion.99

We have assumed above that a bill which had been reported with approval by a committee would be entitled at least to a hearing in the House. This is not so. The Committee of Five on Rules, selected by the Speaker and of which he is chairman, at any time may report a rule which makes impossible the hearing or passage of any particular bill. This committee can even go so far as to propose for the consideration of the House a measure not yet reported, and may discharge a committee from any matter pending before it. It can fix the hearing of any bill for any particular day by special order. It has the practical control of the entire course of business in the House, determining how much time shall be given to any subject and in what order business may be brought before it. It can provide that a bill returned from the Senate be taken up and passed at once without debate. It can provide and has provided that points of order, as objections, should not be allowed to intervene against the consideration of an appropriation bill.100

Although the Speaker, through the Committee on Rules, exercises practically omnipotent power over legislation, such power is apparently insufficient for his ambitions. He has, in addition, what is known as the power of recognition, or, what would be more truly descriptive, the power of nonrecognition of members, although he is aware that they are making a motion. If a member asks for the unanimous consent of the House to suspend a rule and pass a bill, the Speaker’s acuteness of hearing depends upon the member asking, and whether the Speaker desires that unanimous consent shall be given. He refuses recognition to any member attempting to speak upon a bill whose name has not been given him by the chairman of the reporting committee. He frequently refuses to have any bill heard before the House to which he is opposed, and takes it from its order upon the calendar, placing it where it will not be reached. He practically controls all the legislation of the House, and controls it by methods so arbitrary that to submit to them is degrading. In 1881 an indignant member declared upon the floor of the House:

“When this Republic goes down … it will not be through the ‘man on horseback’ or any President, but through the man on the woolsack in this House, under these despotic rules, who can prevent the slightest interference from individual members; who can, if he will, make and unmake laws like an emperor, hold back or give the sinews of war and the salaries of peace.”101

Bourke Cockran, speaking in the House in April, 1904, said: “Again, sir, by our rules no Member can challenge the judgment of the House on anything. He cannot even address a petition or offer a resolution from his place on the floor. He must go around to a basket, out of the notice of the House, and drop his application, his resolution, or petition silently and secretly into a receptacle, as though he was engaged in an act of doubtful propriety to be performed surreptitiously.”

Let us see now some of the direct results of this kind of legislation. In the Fifty-seventh Congress the House passed 3,430 bills and resolutions. During the second session of the next Congress there were reported by the various House Committees 4,904 measures. During the same session 3,992 acts were passed by both Houses, 1,832 of which were public acts, 2,160 private laws, and 40 joint resolutions.102 To note a decided contrast, during the years between 1899 and 1905 the English Parliament, legislating for 42,000,000 people, passed only 46 general and 246 special laws.

Twenty years or more ago, when the Pension Department was refusing to approve many pensions, Congress commenced passing private pension bills. And now many members of the House, having no opportunity to distinguish themselves in debate, for the House “has ceased to be a deliberative assembly,” are engaged exclusively in procuring the passage of private pension bills and of measures making appropriations tor their own districts. Representative Curtis, now United States Senator from Kansas, among others, kept directories of applicants for pensions, with thousands of names and notes as to the status of each claim. Members accept all kinds of bills and present them to the House as an accommodation to their friends and constituents. The result is that, notwithstanding all the powers possessed by Congress are enumerated in seventeen short sections, it passes more bills in each two years than are passed in the same period by all the other national legislative bodies in the whole world. No bill should ever be sent to a committee until after open discussion in the House, and then it should be sent there only for the purpose of correction and amendment, later to be reported, discussed, and passed in the full House. No private pension bills nor special bills should be considered by Congress. The Pension Bureau and Court of Claims are quite sufficient to care for those.

Striking out the private bills, the House should not consider over 200 bills, outside of the appropriation bills, in a single Congress, and those should be discussed in open session with no limits upon discussion. With 30,000 bills before a single Congress, few bills can receive any attention. Both chairmen and members of committees, having no chance to procure fame and honor by manly efforts in discussing public matters in open session, turn naturally to gaining favor by seeking to confer benefits through legislation and thus to attach a large number of their constituents firmly to themselves.

Because it is impossible for the House with such a large body of legislation before it to give careful attention to measures, and because the chairman and members of each of the sixty-two committees are struggling to increase the power of their committee by reporting many bills, the cost of government is multiplied many fold. The Fifty-first Congress, in 1890-91, made appropriations to the amount of about $1,000,000,000, or $170,000,000 more than ever before had been appropriated by any Congress. Between 1890 and 1902 Federal expenditures increased nearly one hundred per cent. The appropriations of Congress for the year 1898 were $485,002,044; in 1906, the first session of the Fifty-ninth Congress, they were $820,184,624, or nearly double the amount of eight years before. The last Congress appropriated to the River and Harbor Bill alone, $83,816,138, a sum larger than the total cost of all government in the United States in any single year prior to 1860. The expenses of government are fast approaching those of the Civil War with over 1,000,000 men in arms.

By this method of committees with each member seeking to attach to himself many constituents through lavish disbursements of public money, legislation has increased so rapidly that it has become impossible to secure any careful consideration for any measure except the most important, and it is only the important which should be considered and passed at all. None of the bills which pass the House are discussed in a deliberative way. Frequently only two or three members vote on many of them, and most of them are rushed through by unanimous consent without any discussion whatever. The gavel passes the law, the clerk records it. So hasty and careless are the methods of legislation that the Dingley Tariff Bill, which filled 163 printed pages and imposed duties upon more than 4,000 separate articles of import, introduced at the opening of the session in the House on March 15, 1897, in less than two weeks was passed and transmitted to the Senate, only twenty-two pages of it having been considered and discussed upon the floor of the House. So carelessly and hastily was the work done that the sections relating to tobacco rebates were omitted, and the President actually signed a different bill from the one passed by Congress. Hidden away in the free list were provisions providing for a duty on anthracite coal and petroleum, and when the matter became public not a member of the House would admit that he knew there were any such provisions in the bill. Within twenty-four hours after President Cleveland’s message in the Venezuela matter Congress unanimously approved his action and declared defiance to Great Britain. It eventually turned out that Great Britain was right, and that it was a matter which should have been carefully investigated. On December 14, 1907, thirteen days after the opening of the present Congress, the dispatches from Washington tell us that 123 of the proposed bills thus far introduced at the present session of Congress are already laws, of the existence of which apparently their proposers are ignorant.

The House of Representatives and the Senate today are governing the Philippines, the Canal Zone, and Cuba through the War Department; Hawaii, Alaska, and the territories within the United States through the Interior Department; and Guam and Tutilia through the Navy Department, while Porto Rico is left neither as a state nor a territory. Does such confusion of government bespeak wisdom? Is it strange that the chaplain of Congress is said to close each succeeding session with the general confession: “We have done those things we ought not to have done; we have left undone those things we ought to have done. Spare us, good Lord, miserable sinners.”

But the worst feature of such lawmaking by the Speaker of the House is found in its effects upon the members. The tendency upon the individual member is to destroy his self-respect and his sense of responsibility to his constituents. All his aspirations for fame are quenched by these despotic methods. There is no longer any opportunity in the House for an honorable career through the manly art of oratory, or the ability to discuss wisely public questions. The Speaker cracks his whip over the members, keeping them continually in subjection by their desire for the one avenue of prominence — appointment to an important committee. Take hope and opportunity for advancement away from a man and you destroy all the springs of effort. Napoleon well understood this when he said that every French soldier carried a Marshals baton in his knapsack. And the Catholic Church has always appreciated it, for it can be truly said that every son of the Church carries the red hat of a Cardinal in his cowl.

Speaker Reed was well aware of the one ambition of the members, so when the Dingley Bill had been sent to the Senate in March, 1897, he postponed the appointment of the committees, holding them in abeyance over the members until the return of the bill and its passage. It was not until the 24th day of July, when the Dingley Bill had become a law, and when the measures in it objectionable to the Speaker had been abandoned, that he finally consented to make up the committees. He well knew that until he appointed those committees the future of every member of the House was in his keeping, and therefore the member to some extent would be subservient to his will, and knowing this, he kept himself in a position where he could coerce the whole House and thus become the real legislating power.

Limit the number of bills which can be introduced in the House; permit each bill to be openly and fully discussed, and the members, once liberated from autocratic rule, would become eager to understand the merits and demerits of a bill and to achieve a record for able discussion of public matters. The people would become interested in the legislation of the House, the newspapers would give prominence to its discussions, and it would become again a democratic body reflecting the feelings, opinions, emotions, and impulses of the whole country. Democratic government is either a failure, and should be abandoned, or such an institution should be destroyed in order that the people once more may become an active part of the government. A democratic republic cannot live without discussion.

At the time of the Constitutional Convention, in 1787, in the ten states in which there were two chambers in the legislature, the basis of representation in the Senate was the possession of taxable property, and in most states a considerable amount of wealth was required, in order to entitle its owner to vote for a state senator. The great weight of opinion in the Convention framing the Constitution favored the selection of the Senate in such a manner as to make it representative of property. Gouverneur Morris, embodying that sentiment, said:

“The Senate should be composed of men of great and established property, not liberty but property is the main object of society. The savage state is more favorable to liberty than the civilized state, and was only renounced for the sake of property.”103

Under Augustus no man was eligible to the Roman Senate who possessed less than a sum equal to $250,000. The most of our United States senators have amassed considerable fortunes in trade, commerce, or manufactures, and desire above all things for themselves and for their families social position. Senators who have prospered during recent years naturally are allied closely with the economic conditions of our time, and are opposed to any change, however unjust the conditions may be toward the mass of the people.

A considerable number of senators have for many years been largely interested in industries dependent upon protective tariffs and special laws, and are today financially interested in trusts dependent upon special legislation. The English House of Commons, in the reign of Charles I, by resolution prohibited persons who were the owners of interests in monopolies from sitting in the Commons, and made it the duty of each member if he knew of a fellow-member who belonged to a monopoly, to publicly name him in the house so that he might be expelled.104 The power of the Senate also consists in its compactness. A small House is apt to possess more firmness than a large one, and is apt to feel its interests distinct from those of the great body of the people.

Besides, the Senate is closely allied with the President in the exercise of the greatest national powers existing today, the confirmation of treaties with foreign powers, which has come to mean the making of treaties by the Senate, and confirmation of the appointments of the President, which likewise has come to mean appointments by the different Senators. George Mason, in the Virginia Convention for the adoption of the Constitution, said: “It has been wittily observed that the Constitution has married the President and Senate — has made them man and wife. I believe the consequence that generally results from marriage will happen here. They will be continually supporting and aiding each other:

they will always consider their interest as united. We know the advantage the few have over the many. They can with facility act in concert, and on a uniform system ; they may join, scheme, and plot against the people without any chance of detection. The Senate and President will form a combination that cannot be prevented by the representatives. The executive and legislative powers, thus connected, will destroy all balances.”105

While the character of representative government in Europe has become more and more powerful through the popular branch of the legislature, the United States Senate has become the strongest power in our government because of these vast executive powers conferred upon it, and because materialistic forces are so influential in our country. The House of Representatives has become only a checking body upon the power of the Senate, and a very weak one at that. Little by little for the last forty years the Senate has been increasing its power. The right to originate bills for the raising of revenue is conferred upon the House, and the Senate has only the power to propose or concur with amendments. This provision of our Constitution was taken from the English system, where for hundreds of years, in a single bill, the House of Commons provided for the raising of revenue, and in the same bill prescribed the specific purposes for which the revenue should be applied. Undoubtedly, this provision was intended to cover appropriation bills, as well as distinct measures for the raising of revenue; however, bills for the raising of revenue, and bills for the appropriation of public moneys, passed by the House, are often amended in the Senate by cutting out the main part of the bill, aside from the enacting clause, and then making a new bill.

The Senate made 634 changes in the House measure known as the Wilson Bill, in 1894. Nearly all of these amendments increased the duty on foreign imports. When the Dingley Bill of 1907 was returned to the House of Representatives, it contained 870 amendments, being practically a new bill. In 1872 the House passed a bill abolishing the duties on tea and coffee. The Senate amended the bill by imposing duties upon 4,000 or 5,000 different articles, and the House, instead of resenting this infringement of its rights, passed the bill upon its return. In 1883 the House passed a bill for the reduction of a few internal taxes; the Senate amended it by imposing duties on thousands of imports, and returned it to the House. The protectionists in the House, by an adroit maneuver, succeeded in having the bill referred to a conference committee; and this conference committee, not the House, to which the Constitution had given the right, but a mere conference committee, imposed burdensome duties upon about 5,000 articles of import.

Jefferson said of the power of the Senate to refuse to concur with the President in appointments to office, that the Senate should only see that no unfit person was appointed. The Senate now, however, has reached the point where it dictates appointments to the President, and then ratifies its own appointees. Step by step it has reduced the members of the House of Representatives to a kind of vassalage. If a representative desires to procure an appointment of a man from his district to a public office he appeals to his Senator for aid, and in return he surrenders to some extent his independence. Not only is this true, but so weak is the ordinary member, especially the newer members of the House, under the despotic methods of the Speaker, that they frequently resort to the Senators from their states to procure appropriations for their districts, by amendment to an appropriation bill sent to the Senate from the House.

The Senate no longer confirms treaties; it reconstructs treaties made by the President. It rejected the Olney-Pauncefote Arbitration treaty, the Hay-Pauncefote Canal treaty, the Newfoundland Reciprocity treaty. It did not report upon the French Reciprocity treaty, and about ten other reciprocity treaties with different countries; and it allows no treaty to pass without modifying it so that it becomes practically a treaty made with the Senate.

By means of the power of dictating the President’s appointments in their own states, by their control of the appointments desired by members of the House of Representatives, and by reason of their close relations with railways, monopolies, and the general corporate interests of the country, the Senators have built a gigantic machine in each state whereby they control the patronage of their state, create a following among the politicians, and grant favors to the corporate interests which they represent in both state and nation. In every state that department which proves in practice the strongest will push its jurisdiction farthest. These masters of the great political machines of their states sit in their seats in the United States Senate with a large part of the patronage of the government in their hands, as mighty a power and at the same time as corrupt a power as Walpole, master of bribery. The close bond between the President and the Senate is patronage. Through this the President, to some extent, is enabled to control the Senate; and the Senate, to a considerable extent, to control the President. The result naturally follows that the two powers act in concert; and together they destroy all equilibrium between the branches of the government, override the House of Representatives, and exercise more or less influence over the courts.

Now let us consider the checks upon legislation. A proposed law introduced in the House of Representatives may be killed by the committee to which it is referred. If it is reported by that committee it may be destroyed by the committee on rules. If it escapes the committee on rules it may be defeated by the Speaker. If it passes over all these obstructions and is passed by the House and sent to the Senate it may be defeated in one of the committees of the Senate- If it reaches the Senate with the approval of the committee it may be defeated by the Senate. If it passes both Houses it may be vetoed by the President. If then passed by a majority of two thirds of each House it may be declared null and void by the United States Supreme Court. Was ever a system so cumbersome, so calculated to defeat the will of the people, so great a shelter for corruption, created by the perverse ingenuity of man? The Nation says: “There is somewhere in the reports of our courts the history of a private claim of unquestionable merit, which was passed without opposition ten times by one House and fourteen by the other, and yet never succeeded in getting through both Houses of the same Congress.”106

Until the Civil War, government in the House of Representatives was carried on by discussion. Men were elected in those days because they were able to present matters forcibly in debate and to discuss public questions upon their merits. With the corruption which came in at the time of the Civil War and the concentration of great interests in the hands of a few men, came the concentration of power in the hands of a few leaders in the House. It became the motto “to do things “; to handle a large amount of business; to pass acts without discussion; to accomplish results. With this tendency the prestige of the House has gradually disappeared. The Senate much more wisely has put no limits upon discussion and, notwithstanding its close alliance with corporate interests and its secret executive sessions, it is still a more democratic body than the House; but House and Senate will reform themselves from within or eventually there will be a reform from without. If the House of Representatives is truly to represent the people its bills must be confined to public matters, it must not attempt to examine more than a few hundred measures during each Congress, and it must discuss these publicly. We wish no Spartan assembly with its contempt for talkers. Discussion is the life of free government and without discussion it will not long continue.

The kind of government which we have been reviewing is exactly the kind of government where the people can know but little about what is going on, and gradually will become indifferent to public affairs because of their lack of knowledge. Behind government by committees, which carry on their work in secret, have naturally arisen usurpations of government. Those usurpations have been going on so long as to have become a normal condition. In the President’s message to the Fifty-seventh Congress, speaking of the Department of Agriculture, he says: “It has gone into new fields until it is now in touch with all sections of our country.” Indeed it has gone into new fields. The Department of Agriculture dates from 1862 in the midst of the Civil War, a time of great usurpation. It consisted of the Commissioner of Agriculture, a statistician, a chemist, an entomologist, a superintendent of the propagating garden and experimental farm. In 1868 a botanist was appointed, and in 1871 a microscopist; in 1877 a forestry division was created, then a division for the investigation of animal diseases; in 1884 a special bureau of animal industry was established, and in 1887 agricultural experimental stations were established throughout the country. In 1889 the Department of Agriculture was raised to the rank of an executive department, and its head became the Secretary of Agriculture and was given a seat in the President’s Cabinet. From that time the department has grown rapidly. The weather bureau, a department having control of irrigation, a department having control of roads, a bureau of chemistry, a bureau of soils, a bureau of statistics, and the division of biological survey have all come into existence.

Today it is carrying on a thousand undertakings and spending millions of dollars each year for purposes which cannot find a single line or word in the Constitution justifying their expenditure. There has not been in the history of our country such extensive and clear examples of usurpation as every department and every work connected with the Department of Agriculture furnishes, if we except alone its undertakings relating to interstate or foreign commerce.107 The Department of Forestry, engaged in a work of the greatest national importance and doing that work with the most admirable results for the country, and the Department having charge of quarantines against the importation of diseased cattle or their transfer from one state to another, may find some justification for their existence in the control of Congress over interstate and foreign commerce, but aside from these there is not a provision in the Constitution giving a foundation for even an inference authorizing the appropriations for agriculture. Chief Justice Marshall says:108 “The powers of the legislature” (referring to Congress) “are defined and limited; and, that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained. The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts followed are of equal obligation.”

If there is no express grant of power in the Constitution which confers the control of agriculture upon the national government, surely everyone will concede that no such power exists. The thousands of different powers exercised by the Department of Agriculture are powers which would belong to the states, unless they were conferred by the Constitution, since they have to do with domestic affairs alone. Now such express powers cannot be found in the Constitution. In this connection it is interesting to see that the Convention which framed the Constitution discussed this very question. On August 18, 1787, it was proposed to vest in the national government the right “to establish public institutions, rewards, and immunities for the purpose of agriculture, trades, and manufactures,” and this was rejected. At the same time it was proposed “to establish a university to encourage by proper premiums and provisions the advancement of useful knowledge and discoveries,” and this likewise was rejected.109 It was also proposed to authorize Congress to grant charters of incorporation in cases where the public good might require them, and this also failed. Thus the precise power which the Department of Agriculture exercises was rejected in the Constitutional Convention, and still, in the Civil War, a little over seventy years later, we find the government establishing this bureau.

Let us see the kind of work which is being done by this department. In a bulletin issued by the Chief of the Division of Publications on January 19, 1907, this department calls to the attention of the farmers its publications on about a thousand different subjects, including the cost of raising calves, the feeding of chickens, the control of coddling moths, the cooking of meats, the cooking of vegetables, the growing of cucumbers, the control of the boll weevil, the use of skim milk for feeding calves, the feeding of ducks, the remedy for flies on cows, the growing of peanuts, the building of hogpens, the feeding of hogs, the clearing of flies from houses, the making of jellies, the shearing of lambs, the management of pigs, the raising cost of pigs, the making of preserves, the use of skim milk in breadmaking, and hundreds of other like matters.

Under the provisions of an act of Congress of June 30, 1906, $82,500 was appropriated to enable the Secretary of Agriculture to undertake experimental work in eradicating ticks which transmitted southern cattle fever. Inspectors were sent out in groups of about a dozen on horseback, with lassos like cowboys, to rope and examine the cattle in Texas, Missouri, Arkansas, Louisiana, Kentucky, and other states. The report of the Secretary of Agriculture says: “They covered their territory systematically, roping and examining cattle wherever found, and informing the owners of infested cattle of the most practical method of getting rid of the ticks.”110 The fecundity of sows was another object which this department investigated in the year 1905-6. An investigation of fifty-five thousand litters was made and the Secretary of Agriculture assures us that the investigations are to be followed with a statement of the inheritance of fecundity.111 Investigations with a view to developing a strain of chickens with increased egg-laying capacity were also carried on extensively in that year. Experiments as to animal nutrition, as to feeding cottonseed products to hogs, as to the production and handling of milk, as to the making, maturing, and storing of cheese, were extensive and costly. The pear blight, the peach blight, the growth of melons, and hundreds of other such subjects were investigated at the cost of hundreds of thousands of dollars in that year. Extensive experiments were made with tobacco wrappers for the aid of the Connecticut valley tobacco interests.

This prolific department seems to be ambitious to encourage the production of tea in this country, for it carried on in that year extensive investigations in South Carolina for the purpose of determining the possibilities of the commercial production of tea. Seven million packages of miscellaneous vegetable and flower seed were bought in the general market and sent out during the year to farmers. Waters used as beverages were examined, and one hundred and fifty-four samples of cattle food were analyzed to determine the quality of cattle foods sold upon the markets. The subject of tanning and the effects of different tanning materials upon the character, quality, and durability of leather were investigated, apparently for the benefit of the leather trust. At Fresno, Cal., in the Yakima Valley in Washington, and in the Yellowstone Valley in Montana, extensive experiments were made in soaking the alkali out of the land and studying the drainage system. The damages caused by the rabbit pest in orchards, by the boll weevil in cotton, and by the gypsy moth in Massachusetts, were also investigated. The United States likewise has taken hold of the question of good roads, and it appears that during the year 1905-6 seventeen roads were built in eleven states. Now I undertake to say with all positiveness that no good authority for any of these works can be found in the Constitution, and yet the United States government, for the year ending June 30, 1907, devoted to the Agricultural Department upward of $10,000,000, besides several hundred thousand dollars of what are called emergency appropriations.

The United States Supreme Court in a recent decision has held that no powers are conferred upon the national government to expend money in irrigation for the several states.112 Justice Brewer, writing the opinion, says: “Turning to the enumeration of the powers granted to Congress by the 8th Section of the 1st Article of the Constitution, it is enough to say that no one of them by any implication refers to the reclamation of arid lands.” On June 17, 1902, Congress passed an act authorizing the construction of irrigation works by the national government in California, Colorado, Idaho, Kansas, Montana, Nebraska, Nevada, North Dakota, Oregon, Washington, and several other states. The project contemplated the forming of a water-users’ association in all of these states, and the sale to them by the national government of water from its reservoirs. The moneys received from the sale of public lands was devoted to the purpose of erecting the tunnels and dams for a large number of irrigation works, and on September 30, 1906, $15,456,900.13 had been expended in their creation, while $39,155,161 had been allotted for their erection in sixteen different states and territories.

The Secretary of the Interior, in his last report, says: “One of the important points which has already developed is that greater protection must be offered by law to the works when finished. There is no Federal statute which can be invoked to protect these works, and the local statutes vary in different states and territories.”113

Why is it that no Federal statute can be invoked to protect these works and that local statutes are the only protection? The answer is simply this: The United States government has no authority in the Constitution to spend a dollar for the erection of these plants, or to enter the business of gathering water and selling it to farmers, and if a Federal statute was passed to protect such works, any attempt to punish a man under it would result in the courts declaring it unconstitutional. The government has entered upon this enterprise simply for the purpose of attaching to it millions of farmers scattered through these states, well knowing that every dollar of the public moneys used in this way is wrongfully diverted from the public treasury and wrongfully converted by Congress.

Congressman Wadsworth, Chairman of the Committee on Agriculture in the last Congress, commented at length on the tendency of the Department of Agriculture to usurp powers of the state governments. The House was considering the Nelson Amendment, increasing the agricultural appropriations, and Mr. Wadsworth said that the practice presented a serious menace to local control, when considered in connection with bills now pending before the Committee on Agriculture. He stated that those bills included aid to state normal schools, district agricultural colleges, mechanical and state high schools; and he added that, if appropriations were made for such purposes, by and by they would be extended to grade schools and then “you will have Federal control and supervision of your public schools.” Mr. Tawney, Chairman of the Committee of the House on Appropriations, said: “If we continue this system of paternalism much longer, it will not be long until Congress will be swept off its feet and called upon to account for from $25,000,000 to $50,000,000 annually for the construction and maintenance of good roads.”

In the last Congress there was considerable discussion about creating a new Department of Hygiene, and giving the head of this Department a place in the cabinet. At the rate we are going, within twenty years most of the powers of the states will be usurped by the general government. In like manner the government is devoting large sums of money to the advancement of memorial and historical associations, to the maintenance of a Bureau of Education, to the aid of communities suffering from extraordinary catastrophes, and for numerous similar objects. It simply usurps this power because the people are quiet and do not protest.

On March 8, 1898, ten days before the President sent to Congress the report of the Naval Board of Inquiry on the destruction of the Maine, the House of Representatives at a single sitting and with no debate whatever, by a unanimous vote of 313 gave to the President of the United States $50,000,000 to be expended “For the national defense and for each and every purpose connected therewith to be expended at the direction of the President and to remain available until January 1, 1899.” On the next day, March 9th, the bill was passed in the Senate in one sitting and without a word of debate, by a unanimous vote of seventy-six. This was said to be the third occasion since the Civil War on which Congress had been unanimous about anything.114

Such a vote of public money probably was never known before in the history of constitutional government. Congress certainly had no power to vote the money in that manner. The grants of money by Congress must declare in the bill granting them the specific ends and purposes of the grants; an express appropriation of this money to a particular purpose was essential to the very validity of the grant. This has been the practice of Congress during the whole period of our constitutional history, and the practice of the English House of Commons for five hundred years. Yet, notwithstanding this. Congress invested the Chief Magistrate with absolute discretion in expending this money. The framers of the Constitution believed that specific appropriations should be made, because they feared if it were otherwise the executive would possess an unbounded power over the public purse of the nation. This act, turning the money over to the President, is simply an example of the recent acts of Congress, placing in him the widest discretion and giving him the opportunity to exercise the most arbitrary power. A more dangerous exercise of power could not be conceived.

The suspension of the operation of statutes by the heads of departments is becoming common in our day. The late Secretary Hitchcock, of the Department of the Interior, permitted the withdrawal from allotment of nearly 4,000,000 acres of land, belonging to the five tribes in the Indian Territory, for the purpose of creating a forest reservation, notwithstanding the statute forbade such action. The motive for doing this was undoubtedly excellent. The Secretary of Agriculture, upon consulting with the Head of the Department of Forest Reserves, in furtherance of the highest public interests had asked that this be done. It is just because such unauthorized powers are exercised for good purposes that they become dangerous to the public welfare. Early English kings frequently exercised this power of suspending the observation of statutes, not alone in favor of certain individuals, but for the entire nation.

Another exercise of arbitrary power is found in the passage of laws by attaching them as riders to appropriation bills. During the Fifty-seventh and Fifty-eighth Congresses, 574 acts of public permanent legislation were passed, of which 176 or thirty per cent were carried through as riders on appropriation bills. The original act conferring jurisdiction over navigable waters on the Secretary of War, and giving him absolute and unlimited control over wharves, bridges, and other structures in all navigable waters, by which he can exercise almost autocratic power affecting hundreds of millions of dollars’ worth of property, was passed some years ago by Congress as a rider on an appropriation bill. It never was reported separately by the committee, and probably its existence as a rider was unknown to most of the members of Congress voting for the appropriation bill.

The prolific source of much of this legislation is the eighteenth subdivision of Section 8, Article 1, of the Constitution, which provides that Congress shall have power to “make all laws which shall be necessary and proper for carrying into execution the foregoing powers.” Thomas Jefferson, in April, 1800, writing to Edward Livingston, discusses this clause as follows: “The House of Representatives sent us yesterday a bill to work the Roosewells’ copper mines in New Jersey. I do not know whether it is understood that the legislature of New Jersey was incompetent to do this, or merely that we have concurrent legislation under the ‘sweeping clause.’ Congress is authorized to defend the nation; ships are necessary to defense; copper is necessary for ships; mines necessary for copper; a company necessary to work mines; and who can doubt this reasoning who ever played at ‘This is the House that Jack Built’?” The Congressmen who devise statutes to increase the power of the Agricultural Department are endowed with quite as great powers of implication and inference as the members of that House of Representatives who provided for the working of the Roosewells’ copper mines in New Jersey.

The exercise of such powers as we have seen in the Department of Agriculture are found in Russia, in the German Empire, and in every autocratic government. They are powers which are moving us rapidly toward a form of state socialism in this country. It will not be long before compulsory insurance of workmen by the state against accident, sickness, and old age will be urged upon the attention of the people; before we will have an inheritance tax, adopted for socialistic and disciplinary reasons, to reduce swollen fortunes, and thus to maintain equality between classes. By and by no one will imagine that any important affair can be properly carried on without the interference of the state; our national government will assume the place of Providence, and all will be invoking its aid for individual necessities.

The absorption by Congress of the legitimate powers of the states ought to cause great discontent among the people. If they are not indignant at such usurpation of the rights of their states, they need not complain if eventually the whole country is ruled from Washington, and that means one central government administering the laws for a continent of 3,500,000 square miles, and a people of 100,000,000 population together with millions of colonists. Such a bureaucracy has never been known. To accomplish this result the people must be kept deluded with the old idea that we are not only in advance of all other countries in all matters, but that we are the only country in the world which has any considerable liberty. To avert such a thing the people must be brought face to face with the facts. They must become candid and willing to see the faults of their government and themselves, even while they hug their virtues. Jealousy and distrust of centralized power will be found to be the sentinels of the people’s liberty.


NOTES

   95.   Lowell, Governments and Parties in Cont. Europe, vol. i, pp. 21, 22.
   96.   Lowell, Governments and Parties in Cont. Europe, vol. i, P. 156.
   97.   Address of Speaker Cannon of February 17, 1906, before the Union League Club of Philadelphia. Annual Report of Club, p. 113.
   98.   Reinsch, American Legislation and Legislative Methods, p. 69.
   99.   Reinsch, American Legislation and Legislative Methods, p. 119.
   100.   Reinsch, American Legislation and Legislative Methods, pp. 57, 58.
   101.   Cong. Record, Forty-sixth Cong., 2d Session, 1207.
   102.   Reinsch, American Legislation and Leg. Methods, p. 300.
   103.   Elliot’s Deb., vol. v, pp. 278, 279.
   104.

Resolved, “That all projectors and monopolists whatsoever; or that have any share or have had any share, in any monopolies; or that do receive, or lately have received, any benefit from any monopoly or project; or that have procured any warrant or command for tine restraint or molesting of any that have refused to conform themselves to any such proclamations or projects; are disabled by order of this House to sit here in this House, and if any man here knows any monopolist, that he shall nominate him; that any member of this House that is a monopolist or projector shall repair to Mr. Speaker that a new warrant may issue forth, or otherwise, that he shall be dealt with as with a stranger, that hath no power to sit here.” (See The English Patents of Monopoly, by William Hyde Price, 1906.)
   105.   Elliot’s Deb., vol. in, pp. 493, 494.
   106.   The Nation, xvi, 145.
   107.   American Law Review, vol. xxx, p. 787.
   108.   Marbury v. Madison, 1 Cranch, 137.
   109.   Elliot’s Deb., vol. i, p. 247.
   110.   Report of December, 1906, pp. 20, 21.
   111.   Report of December, 1906, p. 24.
   112.   Kansas v. Colorado, 206 U. S. 87-90.
   113.   Report, December, 1906, p. 102.
   114.   Bradford, Lessons of Popular Government, vol. ii, pp. 508, 509.

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